Justice on the Western Frontier: The Death Penalty in Pre-Industrial Pittsburgh, 1754-1840

Pennsylvania History: A Journal of Mid-Atlantic Studies, Volume 85, Number 4, Autumn 2018, pp. 556-593 (Article)

Published by Penn State University Press

For additional information about this article: https://muse.jhu.edu/article/704705

Justice on the Western Frontier: The death penalty in pre-industrial Pittsburgh, 1754–1840

William S. Lofquist
State University of New York, Geneseo

Abstract: With an execution moratorium in place, no executions this century, and declining public and political support, the death penalty is moribund in Pennsylvania. As it moves into history, this research documents and analyzes the history of the death penalty in Allegheny County. Focusing on the earliest chapter of that history, the pre-industrial era, two major patterns are observed. First is the role of the death penalty in early efforts to establish and legitimize federal, state, and military authority. Second, as that statemaking project brought a stable civil society into being, use of the death penalty focused more on protecting social relations.

k e y w o r d s : Death penalty, Allegheny County, Pittsburgh, pre-industrial, desertion, Whiskey Rebellion, Fort Fayette

An execution in a republic is like a human sacrifice in religion. It is an offering to monarchy, and to that malignant being, who has been styled a murderer from the beginning, and who delights in murder, whether it be perpetrated by the cold, vindictive arm of the law, or by the angry hand of private revenge.

Benjamin Rush, “On Punishing Murder by Death” (1792)

 

Statemaking and the death penalty

The place that became Pittsburgh was Native American before it was European, a fort before it was a town, British before it was French before it was British before it was American, Virginia before it was Pennsylvania, and Westmoreland County before it was Allegheny County. The tumult that transformed the strategically significant point where the Allegheny and Monongahela rivers form the Ohio River into Pittsburgh and that established civil authority there began in the 1750s.

The death penalty lurked in the background of this transformation. Far removed from the colonial order of the East Coast, where the penal moderation of the modern era of the death penalty was already taking shape, justice on the western frontier was initially unorganized and uncertain.1 As that order moved westward, the liberal penal ideals of the era—including skepticism about the death penalty—came with it. In between, as we will see, was a brief and broad period of intensive death penalty activity before the establishment of federal, state, and military authority ushered in more restrained use of state killings.

Two and a half centuries later, after 102 executions in Allegheny County, 1,043 executions in Pennsylvania, and nearly 16,000 executions nationwide, the end of the death penalty appears finally to be in sight.2 The last execution of an Allegheny County inmate was in 1959.3 Pennsylvania, which last conducted an execution in 1999 and a nonconsensual execution in 1962, imposed a moratorium on executions in 2015.4 Among neighboring states, New York (2007), New Jersey (2007), Delaware (2016), Maryland (2013), and West Virginia (1965) have already abolished the death penalty, leaving only Ohio with an active death penalty. Nationally, the numbers of executions and new death sentences are at multi-decade lows and declining, public support for the death penalty has reached a post-Furman low, and the legal challenges to the use of the death penalty— particularly from lethal injection, though also from continuing challenges to the appropriate scope of death eligibility and the role of race in criminal justice decision making—prove to be vexing.5

With the death penalty finally moving into history, now is an opportune time to take full measure of the history of state killings across the United States. In the context of American “penal law federalism,” in which death penalty law and practice vary significantly by state and even by county, such efforts are necessarily local.6 The present research, part of a project that seeks to document and analyze every death sentence imposed in Allegheny County history, represents a contribution to that effort.7 Focusing herein on the pre-industrial era, attention is centered on the role of the death penalty in the statemaking work of this period, during the creation of Pittsburgh, Allegheny County, Pennsylvania, and the United States, and on whether and how the role of the death penalty changed after the broad legitimation of the new state.

The framework for this effort is informed by three central observations of penal scholars. First, that punishment matters, if not as a straightforward statement of penal intentions but as an institutional practice that can be read for an understanding of the social relations that prevail in any time and place.8 Second, as an exercise of state power, the form and extent of punishment are functions of the interests of those who exercise that power rather than an epiphenomenon of crime.9 The death penalty represents a paradox in this respect; an expression of weakness masquerading as strength. Though the ultimate use of the state’s domestic power, the death penalty is more common in less powerful states, where state authority is less legitimate and less coercive means to assert that authority and protect social relations are not operative.10 Third, the death penalty is a fundamentally racialized practice. In the lexicon of America’s racial history, it is another peculiar institution, a means by which particularly racial inequalities have been legitimized and reproduced.11

Becoming Pittsburgh

Drawing the local, state, and national boundaries by which we now recognize Pittsburgh began with the French and Indian War, which itself began at the “Forks of the Ohio.” While claimed by both the British and the French, until the 1750s the area was lightly settled and effectively Native American.12 Tensions between these three powers, represented by the successive construction and destruction of a series of forts at that fork, escalated significantly as European colonialism and Native American displacement intensified.

By 1760 a British-controlled village named Pittsborough (and variously described by visitors as a “motley colony” and a “colony sprung from Hell”), developed around and was largely dependent on Fort Pitt.13 With Western Pennsylvania the border between the burgeoning and restive colonies and the resistive Native Americans, attacks and reprisals were common, with frequent reports of loss of life on both sides. Facing internal disorder and external threat without the institutions of civil society, resolving disputes was largely a matter of popular justice and private violence.

Military efforts failed to produce a lasting peace as the expansionist aims of the British led to the imposition and abrogation of the Treaty of Fort Stanwix (1768) and the Treaty of Fort Pitt (1778). The Treaty of Paris ending the Revolutionary War established an independent United States of America in the land east of the Mississippi River, while leaving the boundaries of those states and the claims of Native Americans to the frontier lands west of the Alleghenies unresolved until the second Treaty of Fort Stanwix (1784) and the Treaty of Fort McIntosh (1785), both also quickly abrogated.

figure 1 Excerpt from the Pennsylvania Gazette (August 25, 1763, 2) showing conditions around Pittsburgh.

In the midst of the Revolutionary War, Pittsburgh, claimed by Virginia and Pennsylvania, finally and formally became part of Pennsylvania on September 23, 1780. After losing to Greensburg in its bid to become the seat of Westmoreland County in 1785, Pittsburgh’s leading citizen, Hugh Henry Brackenridge, led an effort to petition the state for the formation of a new county in which it could be centered so as to more efficiently transact its growing public affairs.14 The commonwealth enacted that new county— Allegheny—on September 24, 1788. The first court session was held there in December 1788, six years before the dedication of the first courthouse.15 The rule of law had finally arrived in Pittsburgh.

During the 1780s Pittsburgh transitioned from a military outpost to a small town on the western frontier. Bituminous coal discovered in the 1750s fired the nascent glassmaking and iron industries. The institutions of civil society also began to develop, at least modestly. Pittsburgh established its first newspaper in 1786, the Pittsburgh Gazette.16 Pittsburgh Academy, later Western University, the distant precursor to the University of Pittsburgh, opened in 1787, as did the first post office and library. Whatever their energy and ambitions, however, the new nation’s first census, in 1790, counted only 376 people in Pittsburgh.17

figure 2 Excerpt from the Independent Gazetteer, Philadelphia (June 4, 1791, 3), offering a bounty for Indian scalps to Allegheny County residents.

figure 3 Excerpt from the Freeman’s Journal, Philadelphia (January 4, 1792, 2), requesting aid for defense on the western frontier.

Skirmishes with Native Americans intensified as white settlement increased and pushed westward. American efforts to enforce their land claims on the battlefield were initially unsuccessful. Poorly trained and equipped troops failed in battles against a confederation of tribes in the Harmar Campaign in 1790 and the St. Clair Campaign the following year. Distant from the state and national capitals and weakly attached to their governments, unrest among settlers about their safety and status ran high.

figure 4 Notice in the Pittsburgh Weekly Gazette (June 15, 1793, 1) for whiskey inspection.

Declaring that “another defeat would be irredeemably ruinous to the reputation of the government,” President Washington appointed Revolutionary War hero General Anthony Wayne to lead American troops in the next battle.18 After several tumultuous months of training at Fort Fayette in Pittsburgh in 1792, during which death sentences and executions were routine and even wanton against his own troops, Wayne and his army relocated to a new fort at Legionville, northwest of Pittsburgh and closer to the frontier and the battle that awaited there. These death sentences will be discussed in detail. On August 20, 1794, they engaged allied Native American forces at the Battle of Fallen Timbers, near present-day Toledo, Ohio. Wayne’s decisive victory, memorialized at the Treaty of Greenville on August 3, 1795, placed Pittsburgh securely inside the nation’s expanding boundaries and opened the Northwest Territory to white settlement.

At the same time that Pittsburgh was host to military efforts to expand the western frontier, it was also the scene of an altogether different challenge to federal authority. A 1791 federal excise on whiskey enacted to pay Revolutionary War debts had been particularly poorly received in Western Pennsylvania, where anti-Federalist small farmers, already concerned about the exercise of federal authority on behalf of distant and powerful financial interests, saw the tax as more evidence of federal imperiousness.19

Their refusal to pay that tax set the stage for the Whiskey Rebellion, a crucial early challenge to the nascent power of the federal government in a place where farmers least felt and most resented that power. In the summer of 1794 events came to a head when authorities called upon troops from Fort Fayette to quell a growing insurrection. Two men were killed in the ensuing confrontation. Federal treason prosecutions and death sentences followed. These will be discussed later. The rebels relented and the resistance faded by the fall of 1794.

The death penalty and the establishment of state power on the frontier

The process of becoming Pittsburgh took forty years, from 1754 to 1794. In that interval the city became legally established, as were the county, state, and nation in which it is located. As much as these boundaries may be taken for granted, the act of producing, reproducing, and ultimately naturalizing them is the act of asserting, legitimizing, and ultimately naturalizing state power. Such acts are inevitably most visible and contentious when those boundaries are least clear and obvious.

Efforts to enact and enforce these boundaries by military, federal, and state authorities invited the types of responses—from rival nations, reluctant soldiers, and resistant subjects—that invoked the full force of the law. The central contention herein, supported by the historical contextualization of the full range of capital proceedings in pre-industrial Allegheny County, is that it is in these instances that the death penalty operated in its early modern form: as a “vital instrument of state rule.”20 Once those boundaries were established and legitimized, the death penalty moved from the core to the periphery of state power, from enforcing sovereign authority to enforcing social—particularly racial—relations.21

The immaturity of the federal and state powers enforcing these boundaries also created a situation in which the full force of the law was both more likely to be seen as necessary and more likely to be seen as excessive. Similar to the situation Hay described in his classic account of the death penalty in early modern England and that Foucault described in pre-Enlightenment France, the use of the death penalty by a fragile state must balance the effort to legitimize state power with the risk of inviting a backlash against the exercise of that power.22 Both executions and the prerogative of mercy, through which the state demonstrates its power and its benevolence, figure prominently in this effort. This calculus was also on full display in early Pittsburgh.

Deserters from the garrison: Pittsburgh’s first executions

The death penalty exists at three levels of law in the United States: military, federal, and state. In the first decades of its history, Pittsburgh was in the rare, perhaps unprecedented, situation of serving as the location of simultaneous military, federal, and state death penalty proceedings. Befitting a city founded as a fort, the first of those death sentences and executions—the first killings conducted under judicial authority—were military executions of deserters.23

In the earliest years of the American republic, soldiers experienced deplorable conditions. Oft-told stories of Washington’s shoeless troops suffering valiantly at Valley Forge romanticize the struggle against the British Empire at the risk of minimizing the adversity of those conditions. Add to the lack of proper clothing the lack of regular pay and food, poor training, and low levels of professional- ism, and the problems of troop discipline and morale become clearer.24 The use of generous enlistment bonuses certainly helped, though it also led to serial desertions and reenlistment in a practice known as bounty jumping.25

In the face of deprivation and disorder, desertion was commonplace. Estimates are that up to 25 percent of soldiers, many thousands in total, deserted in the war years of 1775–1783.26 So significant was the problem that the Rules and Articles of War, enacted by the Continental Congress on September 20, 1776, and in place until 1806, provided death as punishment for desertion and a broad range of offenses, including mutiny and ordinary felonies. Commanders welcomed their enhanced power to enforce order.27

Full enforcement of the Rules and Articles of War meant further suffering and injury to troop levels and morale. Highly discretionary enforcement resulted. Most deserters faced flogging; others faced lost wages, reduction in rank, branding, and running the gauntlet.28 Executions were largely reserved for acts that put others at risk, particularly treason and mutiny.29 Except in Pittsburgh.

In a striking parallel to the execution of Mamachtaga, a Native American and the first local person executed under state law in 1785, the first person executed under military authority and the first recorded legal execution in Pittsburgh was John Eels, a Native American serving under Captain Uriah Springer during an intelligence-gathering mission into the Northwest Territory. Found to have been planning to betray the troops and join the Native American forces they opposed, Eels was sentenced to death by a military tribunal. A Fort Pitt firing squad executed him on April 12, 1782.30 In the course of explaining Eels’s execution to General Washington, Brigadier General William Irvine noted matter-of-factly that “civil authority is by no means properly established in this country.”

Table 1. Military Death Sentences Imposed in Allegheny County

The same happened at Fort Pitt a few weeks later, on May 3, 1782, to Private Thomas Steed of the Seventh Virginia Regiment for mutiny and disobedience of orders. He and a fellow soldier, Private John Phillips, refused orders and attacked Lieutenant Samuel Bryson of the Second Pennsylvania Regiment, the commandant at Fort McIntosh.31 As with subsequent military executions, “all the troops” were marched in to witness the killing. General Irvine pardoned Phillips “in compassion for his youth, in hopes he may be reclaimed and yet make a good soldier and citizen.”

In a letter to General Washington on May 21, 1782, Irvine noted that Steed and John Eels were the only two soldiers to have “suffered capitally” as of that date. He also noted the beneficial effects of their executions, explaining that “the troops behave remarkably well since a few examples have been made.” Five days later, also at Fort Pitt, the authorities executed Private James Gordon, a Pennsylvania soldier with a record of “repeated desertion and re-enlisting.” As noted at the time, “Gordon, from his own confession, appears to have made a trade of enlisting and deserting.” A later review of this and other early desertion cases emphasized the hardship faced by soldiers, stating that though “desertion in the time of war cannot be excused . . . when we read the letters of Col. Brodhead and Gen. Irvine, detailing the want, suffering, starvation and the ragged and abject condition of the men . . . sympathy for these poor creatures who suffered the extreme penalty of the law will arise.”32

After the war’s end in 1783, the American army shrank to as few as 200 soldiers and its role shifted to that of a “frontier constabulary.”33 By 1784 Fort Pitt garrisoned only a lieutenant and twenty-five soldiers; the following year that number declined to six.34 For the remainder of the decade a handful of troops occupied Fort Pitt and the village that had grown up around it declined accordingly. No further desertions, courts martial, or executions are recorded there before the 1792 decommission of the decrepit fort.

With Western Pennsylvania the boundary between stable state authority and the shifting frontier, President Washington’s determination to extend that frontier westward brought renewed federal attention and investment to Pittsburgh. Promised broad power to train his troops and fight the campaign against native forces as he saw fit, General Anthony Wayne took command of his troops at Pittsburgh’s newly constructed Fort Fayette on June 14, 1792, a month after its official commission.35 Amidst rumors of imminent attack, Wayne and the local population were on edge.36

When the first sizable contingent of troops finally arrived in July, they brought trouble with them. On June 27 Henry Hamilton, a soldier under Major Asheton, used his bayonet to stab Ensign William Diven after Diven had given him an order. The ensign survived. Hamilton, also subject to court-martial for mutiny, was found guilty and sentenced to death.37 At the gallows on August 4, 1792, officials commuted Hamilton’s death sentence only after the reading of his death warrant with the noose around his neck.38 Caldwell describes these last-second pardons as a “deliberate policy” to frighten soldiers.39

This was only the beginning. Despite Washington’s promises, problems of inadequate troop levels, inadequate supplies, and inadequate order, com- pounded by the threat of attack, frustrated Wayne’s efforts from the earliest days at Fort Fayette. Wayne, who believed firmly that earlier defeats were the result of inadequate discipline and training, enforced the most rigorous standards on his troops.40 Initially, and in particular, this produced consider- able friction among soldiers already weakly committed to military service, poorly supplied, and harshly punished for their transgressions. Desertion was rampant.

On August 8, 1792, reports that Indian troops had gathered near Pittsburgh led to mass desertions.41 The following day, Henry De Butts, Wayne’s aide-de-camp at Fort Fayette, published a notice that the frequent incidence of desertion, which he described as “treacherous, base, cowardly,” would be stopped “by the most exemplary punishment” as well as by “liberal rewards” for those who turned in deserters. Increasingly desperate to impose order, Wayne proposed that deserters be branded on the forehead as cowards and have their heads and eyebrows shaved. President Washington rejected such punishments as a violation of the Rules and Articles of War.

Days later, on August 13, 1792, the military at Fort Fayette hanged Hugh M. Laughlin for desertion and horse stealing. Weeks later, on September 1, 1792, privates Jacob Hollom, Charles Jordan, John Elias, and Samuel Rivers received courts-martial for repeated desertion and were sentenced to death. Wayne approved their sentences, with orders that they be executed the next morning and that a fifth deserter, George Russells, serve as their executioner.42 The intercession of a priest led Wayne to spare Elias. As scheduled, the other three men faced the firing squad; their executioner is not recorded.

Though General Wayne intended these executions to restore order, Private James Nugent stole a horse and deserted on September 20. Wayne ordered that no effort be spared in apprehending him. Troops captured him, and a unanimous court-martial found Nugent guilty on September 29. He swung from the gallows at Fort Fayette the following day. At another court-martial a few days later on October 2, soldiers John Lynch and Alexander McIlvanan were tried for desertion, found guilty, sentenced to death by firing squad, and executed the following morning. Even as Wayne prepared to move forward and establish a new base at Legionville, desertions continued. At yet another court-martial held on November 1, soldiers Edward Morris, William Griffith, and Charles Bailey were found guilty of repeated desertions, sentenced to death, and hanged the next day.

The next week, Sergeant John Trotter (attached to Captain Faulkner’s Rifle Company raised in Westmoreland County) received a court-martial. On November 10, 1792, Trotter had enticed two other soldiers—Corporal William McHenry and Private George Donaldson—to join him in deserting. They were apprehended the next day. Within the span of that day, November 11, at a court-martial convened by Captain John Pierce, Trotter was tried, found guilty, sentenced to death, and executed by firing squad.43 His demoted accomplices returned to duty.

Sometime in the next century, a mythology developed that Trotter’s execution was a tragic mistake, in which Trotter was Wayne’s orderly and close companion, that he had only left the fort to visit nearby family, and that Wayne, having ordered the execution under the influence of alcohol, regret- ted his actions once sober. In the final chapter of this story, Trotter is reported to have cursed Wayne. There is no primary evidence to support this and the story is likely fiction.44

Finally, on November 28, 1792, Wayne departed Fort Fayette and Pittsburgh for Legionville. In just over three months, eleven soldiers had been executed for desertion and two others sentenced to death; an unparalleled use of the military death penalty, particularly in peacetime.45 Of General Wayne it was said that “his rages brought desertions that enraged him even more, and firing squads shot down those he could catch, sometimes three in a day.”46 Knopf viewed him differently, acknowledging that though his actions might seem “harsh and severe, perhaps even very unfair,” Wayne was “generous in his treatment” of his soldiers, that he valued each soldier “as an individual and that each convicted soldier received his thoughtful consideration before a sentence was confirmed.”47

Though Fort Fayette remained active through the War of 1812 and desertions remained common (see fig. 5), no further military death sentences were imposed in Pittsburgh. More broadly, across the first decades of the nineteenth century, the legitimation of federal and military authority and the professionalization of military service allowed military justice to transition from its initial statemaking phase, in which corporal and capital punishments were widely used to enforce institutional legitimacy, to a more regular order of moderate punishments.48 In 1806 Congress limited the use of the lash for desertion, before abolishing its use in 1812. In 1830 Congress abolished the use of the death penalty for desertion in peacetime.49

Tax resistance as treason: the Whiskey Rebellion cases

Tax resistance plays a founding role in American history. The Stamp Act of 1765 and the Townshend Acts of 1767, taxes imposed by a distant power determined to offset the costs of war, in this case the Seven Years’ War, on to independent-minded settlers, stoked colonial antagonism. When British authorities then enacted the Tea Act in 1773, which favored powerful British commercial interests over local merchants, colonial resistance resulted in the opening act of what became the Revolutionary War.

figure 5 Pittsburgh Weekly Gazette (February 15, 1794, 4)

In its aftermath, the costs of fighting the Revolution left the United States government and the governments of the states in significant debt. With new, limited, and largely untested powers of taxation, the federal government faced a critical fiscal challenge. In a remarkable illustration of the speed with which the offenses of the vanquished are committed by their victorious foes, the taxing schemes developed by federal authorities almost precisely reproduced the dynamics of colonial resistance that had brought them into power.

When Congress enacted a federal excise on distilled spirits in March 1791, “the first federal tax on an American product,” that tax was immediately unpopular and widely resisted, particularly along the western frontier of Virginia, Pennsylvania, and Kentucky.50 Only recently a wilderness, Western Pennsylvania in the early 1790s was a land of small farmers. With access to markets limited by mountainous terrain to the east and Spanish prohibitions on Mississippi River–based trade to the west, whiskey—easier to transport and a more stable and durable store of value than grain—served as both currency and commodity.51

Doubly regressive was the taxing of that product, not the grain from which it was distilled, and doing so on a per still rather than per gallon basis. Using the revenues generated by the excise to repay wealthy eastern creditors closely tied to the administration enacting that tax redistributed those revenues upward and advanced a vision of the state antithetical to that of smallholders. Imposing that tax on mostly Scot-Irish small farmers with a living memory of repressive British taxation violated the spirit of the revolution to which those farmers adhered.

John Neville, the man appointed by federal authorities as tax collector in Western Pennsylvania was a prominent and formerly popular Allegheny County resident, Revolutionary War general, slaveholder, plantation owner, grain grower, and distiller. The conflicts of interest his new position presented were many and manifest. Not only was he being paid a salary, he also received a commission on the amount of tax he collected, benefitted from the competitive disadvantage the tax imposed on smaller operators, and held the contract to sell whiskey to Fort Fayette.52

Across 1792 and 1793 tax resisters, many of them military veterans, hardened into insurgents with a sense of federal betrayal that provoked them to consider insurrection and even secession. A lead negotiator between federal forces and local insurgents, Hugh Henry Brackenridge had the trust of Federalists and populist sympathies that secured the trust of rebels. In this role, he reflected the stance of Pittsburgh’s legal establishment, such as it was. As a town still not far removed from its days as the province of hunters and trappers, and without the scale of labor or industry to amass a fortune, the establishment itself was not far above the smallholders.53

In the spring of 1794 the federal government forced a showdown by issuing subpoenas for tax resisters to appear for trial in Philadelphia, a move that compounded legal jeopardy with a substantial travel burden. When writs ordering court appearance followed the subpoenas, the revolt came to a head at Neville’s Bower Hill plantation. After a skirmish pitting rebels against Neville and his slaves on July 16, hundreds of additional rebels and federal troops arrived to bolster the opposing sides the next day. At least two rebels were killed, including one of their leaders, James McFarlane. Rebel forces also inflicted casualties and burned Neville’s mansion to the ground before federal forces withdrew to Fort Fayette.54

Under the leadership of prominent Washington County elected official David Bradford, the rebels, in the heady afterglow of combat and victory, made far bigger plans: a direct attack on Fort Fayette and Pittsburgh.55 With negotiations with federal authorities ongoing, the attack became a mostly peaceful march. The negotiations also secured time for President Washington to gather a militia force of more than 10,000 troops and order it to Pittsburgh. Faced with the enormity of the risk that armed conflict and secession rep- resented, the rebel movement divided and weakened. Federal success at the Battle of Fallen Timbers, with the premise of a responsive federal government and the promise of a more secure frontier that it represented, further weakened the rebels. The insurrection collapsed in October 1794.

Fifty-one men faced federal indictments for their roles in the rebellion, thirty-one for treason, with trials to be held in distant Philadelphia in the winter. When the courthouse doors opened, however, only twelve trials were held and only two convictions of lesser participants were obtained; acquittals resulted not because juries acted to nullify the charges but rather because the poorly prepared cases could not bring a conviction.56 Juries found the two convicted men, Philip Vigol and John Mitchell, guilty of treason and sentenced them to death—the first federal defendants convicted of treason in American history.57 Reasons for the German-born Vigol’s conviction included a series of violent actions against tax collectors in three counties and burning Neville’s home. Mitchell’s conviction was for “one continuing act” of treason that included robbing the US mail (an action he took at the urging of David Bradford), and burning Neville’s home.58

The trials themselves were secondary; the federal government had already prevailed. The real target of federal action, “the whole people of the Forks,” had been subdued.59 Though Western Pennsylvania was not the first or the last site of local anti-tax resistance, it was the most decisive.60 Particularly in a time and place in which federal authority—to tax, to enforce federal law, to direct state troops—seemed most insecure, the size, power, and sustained determination of the resistance posed an existential challenge.

Table 2. Federal Death Sentences Imposed in Allegheny County

President Washington pardoned Vigol and Mitchell on November 14, 1795, making them the first people to receive a presidential pardon in American history. In 1799 President Adams pardoned David Bradford, who had also been indicted for treason but fled US jurisdiction into Louisiana. The government repealed the whiskey tax after Jefferson’s election in 1800. Following this brief and intense effort to enforce federal authority, no additional capital charges for violations of federal law have been brought in Allegheny County history. From 1795 forward, the only capital cases brought in Allegheny County were under state authority.

Pittsburgh at the gallows: the first civil executions

In an era in which English law provided the death penalty for dozens of offenses, the earliest laws of Pennsylvania limited the death penalty to willful and premeditated murder.61 Established under the leadership of Quaker pacifist William Penn in 1682, nearly a century before the 1764 publication of Cesare Beccaria’s famous treatise on human rationality and penal moderation, On Crimes and Punishments, “Penn’s law” was the most restrained and liberal penal code of its time.

It remained in effect until 1718, when, amid rising concern about crime, the waning influence of Quakers, and Penn’s death, “the sanguinary system of the mother country was substituted.”62 The capital crimes enumerated in the Act of May 31, 1718, included treason, murder, robbery, burglary, rape, crimes against nature, malicious maiming, manslaughter by stabbing, and arson; for these, a death sentence became mandatory upon conviction.63

Actual executions were far fewer than the new statute allowed, however, particularly in more established areas in and around Philadelphia and particularly prior to the heightened instability of the Revolutionary War era; this penal restraint suggests a more stable legal order.64 Indeed, when Banner, observing a broad trend toward penal moderation in the eighteenth century, noted that “the war years of the 1770s and 1780s understandably saw little move toward milder punishments,” he could have been referring to Pennsylvania.65 Despite the broad availability of the death penalty and what Marietta and Rowe describe as escalating crime and disorder, the five decades between 1720 and 1770 averaged twenty-two death sentences per decade, nearly half of them for murder and nearly half of them later reprieved. The subsequent two decades averaged five times as many death sentences, less than 20 percent of them for murder, and a lower rate of reprieves.66

In a modest step toward moderation, Pennsylvania abolished the death penalty for robbery, burglary, sodomy, and buggery on November 1, 1786. Stepping into the full promise and high ideals of the new nation at peace, on April 22, 1794, the “liberal policy of the benevolent lawgiver” abandoned more than seven decades earlier was revived and even surpassed.67 At the urging of Enlightenment Era luminaries such as Benjamin Rush, who favored abolition of the death penalty, and on the basis of a pamphlet written by William Bradford (former state Attorney General, state Supreme Court justice and future US Attorney General), Pennsylvania became the first state to distinguish between first- and second-degree murder.68 The death penalty became mandatory for the former and unavailable for the latter, thereby giving jurors the discretion to determine both guilt and punishment.

Death sentences and executions declined dramatically across the state. As much as this may be attributable to the narrowing of capital eligibility, changes in case processing are also in evidence; a circumstance that speaks to the strength of establishment support—as represented not just by judges and prosecutors but also by the narrow range of “sober, intelligent, and judicious” white, male, taxable citizens eligible for jury service—for penal moderation.69

Courts had imposed three death sentences for crimes committed within Allegheny County in the ten years prior to the enactment of the new statute, all of them for murder, and a fourth death sentence, also for murder, less than two months later. Three other defendants had been tried for murder in that time; two tried for killing Native Americans were acquitted, a third trial involving friends resulted in a manslaughter conviction. Over the subsequent forty-six years, a period for which the author has been able to document thirteen murder trials, only three more death sentences would be imposed in the rapidly growing county.70

Four of those seven pre-industrial death sentences resulted in hangings. In two other cases, the governor pardoned defendants sentenced to death and they were released from prison. The remaining defendant had his conviction reversed on appeal. Four of the seven sentenced were white men. Two other men, one black and one Native American, were sentenced to death and both executed. Mary Martin, a young black woman, received the seventh death sentence; authorities later pardoned her conviction for infanticide.

Surviving primary source documentation of these cases is scant. Trial court records from this era are limited to docket book recordings of trial dates, witness lists, and outcomes. Trial proceedings do not survive, lost to flood, fire, and neglect.71 Appellate court opinions do survive where they were issued, as do state-level records of pardon boards and governors, including death war- rants. None of these records provide much depth to our understanding of the lives and crimes of the parties to those cases. With several exceptions noted herein, the surviving newspaper record of Pittsburgh during this era, limited to the Pittsburgh Gazette, a four-page weekly, provides the fullest available record of these cases.72

The scene at Hannastown the morning of December 20, 1785, placed the ambitions and shortcomings of the new state and nation on full display. The setting was outside the courthouse, the first English court west of the Alleghenies (doubling as a tavern), in a town founded as the Westmoreland County seat in 1773 that had since been destroyed by fire by the retreating British in 1782. All but the courthouse had been abandoned for the new county seat in nearby Greensburg.73

On gallows constructed from rough-hewn logs, Joseph Ross awaited execution. The twenty-year-old had been convicted and sentenced to death for buggery: intercourse with a farm animal.74 The details of his case are almost entirely lost to the unspeakable infamy with which his crime was regarded.75 His hanging, the last for that crime in American history, proceeded without incident.76

Table 3. Allegheny County Death Sentences—Pre-Industrial Era

Following him to the gallows was Mamachtaga, a Delaware Indian who had stabbed and killed John Smith and Benjamin Jones on May 11, 1785. Injured were William Evans and William Freeman. The attack (which occurred on Killbuck Island, a now-vanished narrow strip of land on the north shore of the Ohio River at its origins in Pittsburgh), was part of a series of attacks and reprisals going back years. Those tensions had been intensified by the terms of the Treaty of Fort Stanwix, signed months earlier, which forced the Delaware to cede the lands north of the Ohio River. After Mamachtaga’s capture, he was briefly held at Fort Pitt, where local residents threatened to seize him from military control and summarily kill him.

Mamachtaga’s trial was the first for murder west of the Alleghenies and the first civil trial of a Native American in American history.77 Hugh Henry Brackenridge represented him.78 Despite the quality of his counsel and the significant due process protections he received under the circumstances, there was little chance Mamachtaga would not be convicted in a time and place so hostile to Native Americans.79 He was, on November 25, 1785. Brackenridge tells us that the jury voted to convict Mamachtaga without leaving the jury box. Less than a month later, the executioner botched the convicted man’s hanging when the rope broke on the first attempt.80 Mamachtaga was then returned to the gallows and hanged a second time.

As further testimony to the tenuousness of the rule of law, similar circumstances, though with a reversal in the identities of the parties, produced a diametrically opposed process and result a few years later. In the spring of 1791 Captain Samuel Brady, celebrated, even mythologized, for his long service in fighting and killing Native Americans, killed several native men and women near present-day New Brighton, northwest of Pittsburgh, apparently in retaliation for recent killings of white settlers.81 He fled and avoided extradition. In 1792 he returned to Pittsburgh for trial at the urging of General Wayne, who was eager for Brady’s return to military service and certain his trial would allow that result. In a criminal trial that liberally mixed military and civilian justice in a manner that mitigated Brady’s criminal responsibility, the judge directed the jury to consider Brady’s killings as acts of war. Under such pressure in a closely watched and celebrated trial, a jury promptly acquitted Brady despite his confession.82

Over the subsequent decade, two of the next three death sentences, including one execution, were imposed on soldiers garrisoned at Fort Fayette. The first, Thomas Dunning, killed his wife, Catherine Worthington on July 23, 1792, in the middle of General Wayne’s bloody summer. Dunning served in Captain William Faulkner’s Rifle Company, which fought in the failed Harmar and St. Clair expeditions and later in the Battle of Fallen Timbers. Faulkner and his troops arrived in Pittsburgh and were placed under Wayne’s command only a few days before the killing.83 Dunning confessed; he was convicted September 5, 1792, and executed on January 26, 1793.84

Dunning’s was the first murder trial and first civil execution in Allegheny County. That his case and the Moode case two years hence were tried in civilian court suggests an effort to separate military and civilian justice and establish the legitimacy and primacy of civil authority. Likewise, Mamachtaga’s civilian case in Westmoreland County could well have been treated as an act of war and tried by military authorities. Dunning’s public hanging was at Boyd’s Hill near the present-day courthouse.

On November 23, 1793, James Honeyman, Benjamin Askins, Dennis Ferris, and a man named Ward, “men of low life” (as they were later characterized in Honeyman’s clemency documents), gathered at Askins’ downtown home to play music and drink. Askins intervened when Ferris and Ward began to fight. Ward left, leading Honeyman to get upset with Askins. They fought, and Honeyman, “a stout young fellow,” hit and kicked the “puny weak man” several times.85 Askins died the next day.

At trial two weeks later, Honeyman argued that in the absence of intent to kill, the case should be considered manslaughter. The state prevailed in its argument that in acting with malice and without defense or justification, Honeyman met the prevailing legal definition of murder. On appeal, an unusual occurrence in an era with largely undeveloped judicial powers, the Pennsylvania Supreme Court overturned the conviction on technical grounds related to the wording of the indictment.86 More likely, the court overturned Honeyman’s murder conviction because in the time between the conviction and the appeal, Pennsylvania had enacted Bradford’s statutory distinction between degrees of murder and limited the death penalty to first-degree murder. Honeyman’s conduct did not meet the state’s new, higher standard for first-degree murder. There is no record of a retrial for Honeyman.

In a third capital murder just six months later, Jacob Moode and Daniel Griddle killed Daniel Murray at Fort Fayette on May 9, 1794. After the three soldiers had fought in a drunken brawl that included threats against Murray’s life, they returned to the room they shared at the fort. Fort personnel dis- covered Murray’s body there the next morning. Authorities arrested Moode and Griddle soon after at a nearby tavern with Moode in possession of a bloody walking stick.87 At trial the jury determined Moode to have delivered the fatal blow. He was convicted of first-degree murder on June 2, 1794, the first conviction in Pennsylvania under the state’s new capital statute. Griddle, convicted of second-degree murder, received five years of hard labor.

figure 6 Record of the death warrant for Thomas Dunning, December 12, 1792. Source: Records of the Department of State, Pardon Books (26.25), vol. 1, p. 101, Pennsylvania State Archives.

Post-conviction, Moode’s former commanding officer, Henry Shrupp, interceded with Governor Thomas Mifflin on Moode’s behalf, commending his service and sacrifice as a soldier and requesting his pardon. Moode, who was nearly blind, was a Revolutionary War veteran who had reenlisted after a period in civilian life. He lost his vision after returning to military service. Mifflin granted Moode’s pardon on February 16, 1795, on the condition that he leave the state “forthwith, not to return.”88 Griddle also received a pardon.

It would be more than twenty years before the Pittsburgh courts imposed another death sentence. In the intervening years, the city grew quickly but diversified slowly. Its population increased fourfold between 1790 and 1800 and then again by 1820, mostly as a result of migration from surrounding rural areas, while its Black population remained between 3 and 4 percent until after the Civil War.89

With the continued growth of a stable civil society in the city, county, and state, political skepticism about the death penalty that had long pre- vailed in the state came again to the fore. In both 1809 and 1811, Governor Snyder urged the legislature to abolish the death penalty.90 A Senate Report supported that recommendation, expressing that the moment had arrived “for giving the last stamp of greatness and humanity to the character of Pennsylvania.”91 Though the death penalty remained law, the official reports and deliberations that resulted placed Pennsylvania in the front rank of American abolitionism. Abolition bills were also considered, unsuccessfully, in 1822, 1824, and 1828, and in six different years in the 1830s before growing sectionalism brought an end to anti–death penalty politics in the 1840s.92

Contributing to the modest use of the death penalty and the strength of abolitionist politics was the emergence of imprisonment as an alternative to the corporal and financial sanctions of the day. The birth of the prison system had particular resonance in Pennsylvania and in Pittsburgh. Continuing the state’s tradition of penal progressivism, Pennsylvania was the first state to make the transition from the old English system of jail as a place to be held awaiting punishment to prisons as a place for punishment and penitence, hence the penitentiary. The intention for the prison to replace rather than supplement the gallows was very much a part of that transition.93

Philadelphia’s Walnut Street Jail, opened in 1773 and converted to a penitentiary in 1790, was the first such structure in the United States. When it and similar facilities were deemed unsuited to the lofty goals of human transformation they had been assigned, a second generation of prison construction began. Informed by the Enlightenment emphasis on rationality, these structures, including Pittsburgh’s 1826 Western Penitentiary, sought a “moral architecture”94 through which careful design would create the conditions—of isolation, silence, and observation—that would allow “the restoration to society of lost and prodigal members.”95

figure 7 Record of the pardon granted to Jacob Moode, February 17, 1795. Source: Records of the Department of State, Pardon Books (26.25), vol. 1, p. 186, Pennsylvania State Archives.

The first capital case in Allegheny County in the nineteenth century involved John Tiernan.96 A middle-aged Irish immigrant, Tiernan left behind a family in County Kildare (and, reportedly, another one in New York and a third in Philadelphia) and moved to Pittsburgh in the summer of 1816 to work on the Pittsburgh and Greensburg Turnpike, a vital link connecting Pittsburgh and Philadelphia.

Over the next year and a half, Tiernan lived and worked in Turtle Creek, east of Pittsburgh, with fellow countryman Patrick Campbell. On December 7, 1817, Tiernan’s neighbors noticed him acting suspiciously. The next day, those neighbors found Campbell’s body under the floorboards of the house he shared with Tiernan. Tiernan, Campbell’s horse, and the twenty dollars Campbell had recently been paid were all missing. Authorities arrested Tiernan in Westmoreland County on December 11.

figure 8 Notice of Patrick Campbell’s murder by John Tiernan, Pittsburgh Gazette (December 12, 1817, 3).

Though the evidence was circumstantial, the chain of events left little doubt about Tiernan’s guilt. A jury tried, convicted, and sentenced him to death all on a single day, January 17, 1818. On the morning of March 25, 1818, a crowd estimated as large as ten thousand watched as Tiernan was conveyed the short distance from the jail to the gallows at the foot of Boyd’s Hill, and hanged. His was the second—and last—public execution in Pittsburgh, an event so momentous in the city’s history that it was used for years after to mark time.97

Nearly a decade later, in early 1826, Mary Martin, variously described as a “yellow girl” and a “colored girl,” killed her newborn child. The details of the crime— including the date, the means, the circumstances, and the sex of the infant—are not recorded. At trial in April, she pled not guilty. A jury convicted Martin of first-degree murder on April 21, 1826, a verdict that is reported to have left the jailer in tears and the jury decidedly uncomfortable. The same jury immediately and unanimously recommended her for mercy, acting under advisement of the Pittsburgh Bar. Their reluctance was in keeping with the views of William Bradford, who had great misgivings about the treatment of infanticide as a capital offense even in drafting the 1794 statute.98 It was also shared by juries elsewhere in the state and the nation and by a growing segment of the public.99

More ambivalent was newspaper coverage of the Martin case. A paper as far away as the Gettysburg Compiler expressed its opposition to mercy, noting that “so long as our laws prescribe the punishment of death for such offenses, pardons should be cautiously granted.” The Allegheny Democrat remained agnostic on the issue but encouraged the governor to act quickly in that doing so “would confer a particular favor upon many of our citizens, who begin to be uneasy of the expense of keeping” Martin in jail. A year later, on April 16, 1827, Governor Schulze pardoned her.

Moved by the spectacle of large crowds and disorderly displays at hangings across the state, on April 10, 1834, Pennsylvania abolished public executions.100 This action, understood as a partial abolition, moved hangings from a public locale to within the confines of the jail in the county imposing the sentence.101 In an era of sharpening political divisions, the matter received little debate and overwhelming legislative support. In contrast with the Revolutionary Era view that public executions were a necessary protection against the private and unaccountable exercise of state power, the broad legitimation of state power and elite control over the exercise of that power contributed to an elite consensus that public executions were not only unnecessary but injurious to public order.102

This proved to be as far as death penalty abolitionism would move for the better part of a century. Once a bastion of racial tolerance and penal progressivism, during which Pennsylvania abolished slavery and led the fight for the abolition of the slave trade, by the mid-1830s a new era of intolerance had descended on Pittsburgh and the state.103 In the background of this change, immigration began to play an important role in Pittsburgh’s growth with the influx of Irish and then German laborers, who strengthened the city’s racial identity and racialized class tensions in the increasingly industrialized economy.104 Incidents of white mob violence against black citizens followed.105 Pennsylvania amended its constitution to deny black people the right to vote in 1838.

The final capital case of this era, the execution of James Galligo, occurred within the context of these racial hostilities. On December 12, 1837, Galligo killed Jacob Rogers at Rogers’s home on Seventh Avenue, in downtown Pittsburgh.106 Rogers, a black man, apparently had become involved with Galligo’s wife, who is reported to have been white. Galligo, described as mulatto, sought revenge against Rogers, killing him without saying a word and immediately turning himself in and confessing to the mayor.

Galligo’s trial began only weeks after the murder, on December 29. A jury convicted him the next day and sentenced him to death January 8, 1838, less than four weeks after the murder. James Galligo was executed in the Allegheny County Jail on March 30, 1838. In noting that his death warrant had been issued, the Pittsburgh Gazette also reminded readers that “the execution will take place within the prison walls, so that his exit will not form a spectacle for a mob to gaze at.”107

Additional context for the two major claims of this research—that death penalty activity, inversely related to the stability and legitimacy of state power, diminished quickly after the state and the legal order were secured in the mid-1790s and that use of the death penalty came to focus on threats to the social and racial orders as more fundamental challenges of statemaking were resolved—is provided by a broader consideration of the legal treatment of murders in Allegheny County during this era. Using the same search strategies and sources used in identifying capital cases, this author identified twenty pre-industrial murder trials in Pittsburgh.108 Beyond the seven of those cases in which a first-degree murder verdict and a death sentence were achieved, there were four cases, including one case with three juvenile defendants, in which a second-degree murder conviction resulted. Three cases resulted in a manslaughter conviction. The six remaining cases resulted in acquittals.109

Looking more closely at these murder cases yields interesting results with respect to the relative social locations of offenders and victims and the related role of penal practice in reproducing social relations. Most significantly, there are nine cases in which the offender occupies a clearly socially superordinate position (e.g., husband/wife, white/black, parent/child) to the victim. In six of those cases, two involving the killings of Native Americans, two involving the killing of wives, one involving the killing of an enslaved person, and the last an infanticide, a jury acquitted the offender. In one other case—the Martin case, also an infanticide—a pardon resulted. That leaves just two cases—the Dunning case and the case of James Stoops, convicted of voluntary manslaughter for killing his wife—in which the law acted in defense of the less powerful.110

There is one case in which the offender clearly occupies a socially subordinate position. That case—that of Mamachtaga—resulted in an execution. The remaining ten cases took place among peers, all of them men and nine of them involving white offenders and victims. It is here that the greatest breadth in dispositions is observed. Four of these cases resulted in a second-degree murder conviction, two resulted in a manslaughter conviction, two resulted in a commuted death sentence, and two, including the one case involving black parties, resulted in an execution.

It is also notable that the only two murder cases involving black offenders resulted in death sentences. That two of the defendants were black at a time when the black population of Pittsburgh was less than 4 percent of the city’s population is itself noteworthy.111 Add to this the case of Philip Winebiddle, a wealthy white slaveowner whose killing of an enslaved person resulted in an acquittal after a trial described as “tedious,” and the two cases in which juries acquitted two white men, Samuel Brady and Andrew Robertson, of charges of killing Native Americans.112 A distinct pattern of reserving the harshest penalties for transgressions of social relations, and abandoning thinly constructed veneers of liberal respectability in the process, is visible.

Conclusion: Contesting, establishing, and limiting lethal legal authority

On April 22, 1794, the same day that the state of Pennsylvania limited the death penalty to first-degree murder, it granted to Pittsburgh the status of borough. That same decisive year, the Whiskey Rebellion and the Native American threat to western Pennsylvania concluded. These milestones took physical form with the construction of Allegheny County’s first courthouse also that year. After a decades-long effort, during which authorities broadly deployed the death penalty to establish the legal authority of all levels of government coming into being in that time and place, Pittsburgh sat at the center of a county with clearly drawn lines of federal and state authority, and civilian and military authority. From this point forward, that courthouse, and the two others that followed it, would hear nearly 200 death penalty cases. All of them would be first-degree murder cases, as defined under state law.

The courts used the death penalty sparingly in the half century that followed. With a small population, murders were few. With a narrowly tailored statute and little enthusiasm for the death penalty from the public and policymakers, cases involving imposition of a death sentence were fewer. With clearly established state power, no real threats to that power or the private interests that it was increasingly coming to represent, and a highly homogenous population, pressure toward punitiveness was unlikely. At one point, a quarter-century passed between executions, and then another two decades.

In considering the space that often operates between the ideals and the practice of punishment, Garland observed that “too often we fail to appreciate the degree to which the operation of ‘civilized sensibilities’ on punishment depends on a series of prior social conditions, among which are an effective state, a sense of secure disinterestedness on the part of key social groups, and a degree of intragroup identification or solidarity that links punishers to punished.”113 More so than at any other time in its history, those social conditions were found in Pittsburgh in the first half of the nineteenth century.

Across that period Pittsburgh made the transition from an economy dominated by commerce to one dominated by industry, a transition having numerous parents. The War of 1812 and the loss of access to British goods it brought about spurred local production. Also important was the steady westward movement of American conquest and settlement and with it the westward movement, from Pittsburgh to Cincinnati to St. Louis and else- where, of the commercial interests supplying the frontier. Mostly, though, it was the bounties of coal, coke, and oil in the area that shaped and ultimately defined Pittsburgh’s identity as a bustling city “darkened with a sulphurous canopy” and locked in a “primeval darkness,” at least for the next 150 years.114

With that transition, the ideals that informed penal moderation con- fronted a new challenge: how to regard the emergence of capitalism and how to situate the state in the coming contest between individual liberty and private profit. This tension is captured well in Jones’s disapproving depiction of Pittsburgh as, above all else, a city of strivers, a place of business, “the place of places, to gather together the ‘commodity,’ which is at once a necessary evil, the source of all mundane felicity, and the god of all mortal idolatry.”115 The resolution of that tension is reflected in the parallel trajectories of state killing and industrial capitalism across the long nineteenth century.

During this early industrial era (1841–91), thirty-eight death sentences were imposed in Allegheny County. Twenty of those death sentences resulted in an execution, including four of five black defendants and sixteen of thirty-three white defendants. Beginning in the last decade of the nineteenth century, as the immigrant and laboring classes turned darker and both their exploitation and their resistance intensified, the penal state more fully engaged in defense of capital. Pittsburgh’s industrial era (1892–1919) witnessed eighty-seven death sentences imposed and fifty executed, nearly half of all of the county’s historical death penalty activity in less than three decades.

Black defendants, still only 5 percent of the population, represented 38 percent of those sentenced to death during this era, 50 percent of those executed, and only 18 percent of those who had commuted death sentences. White defendants fared better, with those native-born and Western European executed less and commuted more than Eastern Europeans whose whiteness was less fully secure. Just as black defendants suffered disproportionately, black victims received less legal protection. Fully 82 percent of all death sentences were imposed in cases with white victims.

 

William S. Lofquist is a professor of sociology at the State University of New York at Geneseo. His research interests focus on the historical, geographic, and racial patterning of the death penalty, wrongful convictions, and the future of the death penalty.

NOTES

1. Stuart Banner, The Death Penalty: An American History (Cambridge, MA: Harvard University Press, 2002), 88–111.
2. From the Espy data, originally collected by Alabama-based amateur historian, Watt Espy, and subsequently supplemented by John Ortiz Smykla (see https:// deathpenaltyinfo.org/executions-us-1608-2002-espy-file). For data related to the history of executions in Pennsylvania, see Negley K. Teeters, “Public Executions in Philadelphia,” Prison Journal (October 1958): 63–74; Teeters, Scaffold and Chair: A Compilation of Their Use in Pennsylvania, 1682–1962 (Philadelphia: Pennsylvania Prison Society, 1963); and Teeters and Jack H. Hedblom, Hang by the Neck: The Legal Use of Scaffold and Noose, Gibbet, Stake, and Firing Squad from Colonial Times to the Present (Springfield, IL: C.C. Thomas, 1967).
3. Cleveland Thompson was executed on May 4, 1959, for murdering Wallace Russell in a Hill District bar on September 13, 1949. Since Thompson was first sentenced to death in 1950, thirty-two men have been sent to death row from Allegheny County. As of this writing, nine such men are on death row.
4. The last three men to be executed in Pennsylvania—Keith Zettlemoyer (Dauphin County) and Leon Moser (Philadelphia County) in 1995 and Gary Heidnik (Philadelphia County) in 1999—were so-called volunteers, who facilitated their own executions by refusing to make use of available appeals. The state has not executed an inmate who made full use of available legal options since Elmo Smith (Montgomery County) was executed in 1962.
5. See Richard C. Dieter, “The Future of the Death Penalty in the United States,” University of Richmond Law Review 49 (2015): 921–38; Brandon Garrett, End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice (Cambridge, MA: Harvard University Press, 2017); and Death Penalty Information Center, The Death Penalty in 2017: Year End Report, https://deathpenaltyinfo.org/ YearEnd2017.
6. Furman v. Georgia (408 US 238, 1972), in which the US Supreme Court ruled the death penalty unconstitutional, is recognized by death-penalty scholars as marking the boundary between a long era of limited constitutional scrutiny of the death penalty and the more regulated contemporary era.
7. Austin Sarat and Christian Boulanger, The Cultural Lives of Capital Punishment (Palo Alto, CA: Stanford University Press, 2005),
8. Additional information about this project, including descriptions and analyses of each case, may be found at https://state-killings-in-the-steel-city.org/.
9. Michel Foucault, Discipline and Punish: The Birth of the Prison (New York: Vintage Books, 1979); David Garland, Punishment and Modern Society (Chicago: University of Chicago Press, 1990).
10. Garland, Punishment and Modern Society; Nils Christie, Crime Control as Industry (New York: Routledge, 1993).
11. David Garland, Peculiar Institution: America’s Death Penalty in an Age of Abolition (Cambridge, MA: Harvard University Press, 2010).
12. Loic Wacquant, “From Slavery to Mass Incarceration,” New Left Review 13 (2002): 41–60; Garland, “The Peculiar Forms of American Capital Punishment,” Social Research 74, no. 2 (2007): 435–64.
13. Amy C. Schutt, Peoples of the River Valley: The Odyssey of the Delaware Indians (Philadelphia: University of Pennsylvania Press, 2007).
14. Charles Morse Stotz, “Defense in the Wilderness,” Western Pennsylvania Historical Magazine (hereafter WPHM) 41, no. 3 (1958): 57–197, at 110; Daniel P. Barr, A Colony Sprung from Hell: Pittsburgh and the Struggle for Authority on the Western Pennsylvania Frontier, 1744–1794 (Kent, OH: Kent State University Press, 2014).
15. Hugh Henry Brackenridge served as a lawyer and judge in his distinguished career. He plays a prominent role in two episodes in Pittsburgh’s statemaking period: he represented Mamachtaga in the first state capital case in Pittsburgh and he served as a negotiator between local and federal interests in the Whiskey Rebellion.
16. See Charles McCollester, The Point of Pittsburgh (Pittsburgh: Battle of Homestead Foundation, 2008), 51; Virginia Beck, “The Evolution of Government in Allegheny County, 1788–1808,” WPHM 24 (1941): 209–28.
17. J. W. F. White, “The Judiciary of Allegheny County,” Pennsylvania Magazine of History and Biography 7, no. 2 (1883): 143–93.
18. Virginia court sessions were held in Pittsburgh as early as 1773. No capital cases were heard by those courts.
19. Clarke M. Thomas, Front-Page Pittsburgh: Two Hundred Years of the Post-Gazette (Pittsburgh: University of Pittsburgh Press, 2005).
20. While stationed at Fort Pitt, Colonel Henry Bouquet conducted a census of the nonmilitary residents of the surrounding settlement in April 1761. He counted 332 people and 160 buildings; David Dixon, Never Come to Peace Again: Pontiac’s Uprising and the Fate of the British Empire in North America (Norman: University of Oklahoma Press, 2005). The population of Pittsburgh in that first national census was mostly white with modest numbers of free and enslaved black people; Clarence Rollo Turner, “Black Pittsburgh: A Social History, 1790–1840,” unpublished paper, Department of Black Studies, University of Pittsburgh, 1974.
21. Quoted in McCollester, Point of Pittsburgh, 43. For a review of Wayne’s career, see Mary Stockwell, Unlikely General: “Mad” Anthony Wayne and the Battle for America (New Haven, CT: Yale University Press, 2018).
22. Terry Bouton, Taming Democracy: “The People,” the Founders, and the Troubled Ending of the American Revolution (New York: Oxford University Press, 2009); William Hogeland, The Whiskey Rebellion (New York: Scribner, 2006).
23. Garland, Peculiar Institution, 76.
24. This approach is rooted in Garland’s view that the broad historical and geographic variation in penal practices defeats grand theories of penal power, whether Elias’s and Durkheim’s civilizing approach or Rusche and Kirchheimer’s Marxist economic approach or Foucault’s disciplining approach, in favor of the more modest view that the exercise of penal power is best explained through reference to the specific interests and conditions associated with the exercise of that power. See David Garland, “The Limits of the Sovereign State,” British Journal of Criminology 36, no. 4 (1996): 445–71; David Garland, “Penal Power in America: Forms, Functions and Foundations,” Journal of the British Academy 5 (2017): 1–35.
25. Douglas Hay, “Property, Authority and the Criminal Law,” in Douglas Hay, Peter Linebaugh, John G. Rule, E. P. Thompson, and Cal Winslow, Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England (New York: Pantheon, 1975); Foucault, Discipline and Punish.
26. Primary sources related to these early cases are limited largely to the original correspondence of military authorities; see C. W. Butterfield, Washington-Irvine Correspondence (Madison, WI: David Atwood, 1882). The surviving newspaper record of the era is quite limited and newspaper coverage of desertions and their circumstances within those papers was scant, suggesting these matters were handled internally. Advertisements of bounties for the apprehension of deserters were another, much more common matter; see Joseph Lee Boyle, He Loves a Good Deal of Rum: Military Desertions during the American Revolution, 1775–1783 (Baltimore, MD: Clearfield Publishing, 2009).
27. See Boyle, He Loves a Good Deal of Rum; James Howard Edmonson, “Desertion in the American Army during the Revolutionary War” (1971), LSU Historical Dissertations and Theses, 2116.
28. Norman W. Caldwell, “The Enlisted Soldier at the Frontier Post, 1790–1814,” Mid-America 37, no. 4 (1955): 195–204.
29. Boyle, He Loves a Good Deal of Rum; Edward Coffman, The Old Army: A Portrait of the American Army in Peacetime, 1784–1898 (New York: Oxford University Press, 1986).
30. Edmonson, “Desertion in the American Army,” 341–42.
31. Butterfield, Washington-Irvine Correspondence; Richard C. Knopf, “Crime and Punishment in the Legion, 1792–1793,” Bulletin of the Historical and Philosophical Society of Ohio 14 (1956): 232–38.
32. Efforts by historians to reconstruct the use of the death penalty during the Revolutionary War era count 225 death sentences and 40–75 executions. See Edmonson, “Desertion in the American Army,” 345; Charles Patrick Neimeyer, America Goes to War: A Social History of the Continental Army (New York: New York University Press, 1996), 139–45.
33. All accounts of court-martial proceedings from 1782 are from Butterfield, Washington-Irvine Correspondence.
34. Fort McIntosh was located approximately thirty miles to the northwest, on the Ohio River in contemporary Beaver County, Pennsylvania.
35. Daniel Agnew, Fort McIntosh: Its Times and Men (Pittsburgh: Myers, Shinkle, 1892): 33.
36. Coffman, The Old Army, vii
37. Charles W. Dahlinger, “Fort Pitt,” WPHM 5, no. 2 (1922): 87–122.See Alan D. Gaff, Bayonets in the Wilderness: Anthony Wayne’s Legion in the Old Northwest (Norman: University of Oklahoma Press, 2004), for a detailed history of this era of Wayne’s military career; see Mrs. Elvert M. Davis, “Fort Fayette,” WPHM 10, no. 2 (1927): 65–84, for a history of Fort Fayette.
38. Stockwell, Unlikely General, 48–49.
39. Unless otherwise noted, all accounts of court-martial proceedings under General Wayne’s command at Fort Fayette are provided by General Wayne’s Orderly book, maintained by his aide-de-camp, Henry De Butts: “General Wayne’s Orderly Book,” vol. 34 (1792), Historical Collections, Michigan Pioneer and Historical Society (Lansing, MI: Wynkoop Hallenbeck Crawford Co., 1905).
40. Gaff, Bayonets in the Wilderness, 60.
41. Caldwell, “Enlisted Soldier at the Frontier Post,” 200.
42. Knopf, “Crime and Punishment in the Legion,” 234–35.
43. Gaff, Bayonets in the Wilderness, 60–61.
44. Ibid., 61–62.
45. Ibid., 75.
46. George Swetnam, “The Curse That Haunted Mad Anthony Wayne,” Pittsburgh Press, April 4, 1954, 106; L. D. McCandless, “Wayne’s Fatal Folly,” Pittsburgh Press, March 16, 1888, 3; Thomas White, Forgotten Tales of Pittsburgh (Charleston, SC: The History Press, 2010); Mark Nesbitt and Patty A. Wilson, Cursed in Pennsylvania: Stories of the Damned in the Keystone State (Guilford, CT: Globe Pequot, 2016).
47. None of the numerous studies on desertion in the military during the post-Revolutionary War era provides a count or a systematic treatment of the use of the death penalty, suggesting that such sentences were rare occurrences. See Caldwell, “Enlisted Soldier at the Frontier Post”; Coffman, The Old Army; Edmonson, “Desertion in the American Army”; Robert Fantina, Desertion and the American Soldier, 1776–2006 (New York: Algora Publishing, 2006); Stanley S. Graham, “Life of the Enlisted Soldier on the Western Frontier, 1815–1845” (diss., North Texas State University, 1972); James M. MacCaffrey, The Army in Transformation, 1790–1860 (Westport, CT: Greenwood Press, 2006); John D. McDermott, “Really Rogues? Desertion in the Nineteenth-Century US Army,” Nebraska History 78 (1997): 165–74; Rachel Calvin Whitehead, “‘It is a Merit to Escape’: Defending Desertion and Defining Borders on the U.S. Canadian Frontier, 1784–1860” (diss., Johns Hopkins University, 2016).
48. Swetnam, “The Curse That Haunted Mad Anthony Wayne,” 106.
49. Knopf, “Crime and Punishment in the Legion,” 238. Accepting the same calculus that the importance of the mission justifies the actions taken in its pursuit, Stockwell concurs with Knopf; Stockwell, Unlikely General, 61–62.
50. Lilly and Thomson’s research on the use of the death penalty by the American military in England during World War II provides an interesting corollary to the argument herein that the role of the death penalty shifts from reinforcing sovereign authority to reinforcing social relations after sovereign authority achieves broad legitimacy. They found that military executions disproportionately targeted low-ranking, socially disadvantaged, and black soldiers, particularly those implicated in offenses involving white British female victims. See J. Robert Lilly and T. Michael Thomson, “Executing US Soldiers in England, World War II: Command Influence and Sexual Racism,” British Journal of Criminology 37, no. 2 (1997): 262–88. The racialized application of military justice, including the death penalty, was also found in World War I; see J. Bishop, Justice under Fire (New York: Charterhouse 1974); N. E. Felder, “A Long Way since Houston: The Treatment of Blacks in the Military Justice System,” Army Lawyer (October 1987): 8–11.
51. In place of the death penalty, Congress reintroduced the lash in 1833 before abolishing it again, for a final time, in 1861; see Edmonson, “Desertion in the American Army”; McDermott, “Really Rogues?,” 165–74.
52. William Hogeland, The Whiskey Rebellion (New York: Scribner, 2006), 27. Edward Everett, “Jeffersonian Democracy and the Tree of Liberty, 1800–1803,” WPHM 32 (1949): 1–2.
53. Hogeland, Whiskey Rebellion (2006), 64–70.
54. Ibid., 97–102.
55. It was only in the next generation, when the landholdings that some had amassed were sold to emerging industries that those landholders, industrialists, and the adjacent bankers, began to form Pittsburgh’s elite; see McCollester, Point of Pittsburgh, 55–56.
56. Bouton, Taming Democracy, 232–34.
57. James P. McClure, “‘Let Us Be Independent’: David Bradford and the Whiskey Insurrection,” Pittsburgh History 74, no. 2 (1991): 72–86.
58. Hogeland, Whiskey Rebellion (2006), 237–39.
59. Fewer than thirty cases of treason have been brought in US history. Prominent among them are the cases of John Brown (1859) and Iva Toguri D’Aquino (“Tokyo Rose,” 1949). Suggestive of the eagerness of early federal authorities both to establish their authority and mollify opposition to it, 138 federal capital trials were held in the first thirty-six years of American history, resulting in 118 convictions, 42 executions, and 64 pardons; Rory K. Little, “The Federal Death Penalty: History and Some Thoughts about the Department of Justice’s Role,” Fordham Urban Law Journal 26, no. 3 (1998): 347–508.
60. Alexander S. Guffey, “Figures in the Whiskey Insurrection Suffer Trials at High Treason,” Pittsburgh Daily Post, January 9, 1927; see also United States v. Vigol, 2 U.S. 346 (1795) and United States v. Mitchell, 2 U.S. 348 (1795).
61. Hogeland, Whiskey Rebellion (2006), 238.
62. Most notably, Shay’s Rebellion in western Massachusetts in 1786–87 and Fries’s Rebellion in eastern Pennsylvania in 1799–1800. Each involved similar dynamics of organized tax resistance by smallholders. All three rebellions involved treason prosecutions, convictions, and death sentences, though Shay’s Rebellion, which also included two executions, was prosecuted by state courts. As in the Whiskey Rebellion, in the aftermath of Fries’s Rebellion, forty-five men were indicted; four, including Fries, were convicted and sentenced to death; and all were pardoned.
63. Edwin R. Keedy, “History of the Pennsylvania Statute Creating Degrees of Murder,” University of Pennsylvania Law Review 97, no. 6 (1949): 759–77; Albert Post, “Early Efforts to Abolish Capital Punishment in Pennsylvania,” Pennsylvania Magazine of History and Biography (hereafter PMHB) 68 (1944): 38–53.
64. Banner, Death Penalty, 88–89; Keedy, “History of the Pennsylvania Statute Creating Degrees of Murder,” 760–64; Pennsylvania House of Representatives 1846, 7.
65. The Statutes at Large of Pennsylvania, 1712–1724, III, 199.
66. Hayburn states that approximately 20 percent of all executions prior to 1776 were in Philadelphia. Higher rates were found in areas where civil authority was less secure. Timothy Hayburn, “Who Should Die? The Evolution of Capital Punishment in Pennsylvania, 1681–1794” (diss., Lehigh University, 2011).
67. Banner, Death Penalty, 95.
68. Jack D. Marietta and G. S. Rowe, Troubled Experiment: Crime and Justice in Pennsylvania, 1682–1800 (Philadelphia: University of Pennsylvania Press, 2006), 76–77. Marietta and Rowe’s argument that these patterns are a response to increasing rates of immigration-driven crime and disorder and the state’s belated recognition of the failure of penal moderation requires a high level of confidence in eighteenth-century crime statistics and runs contrary to the view of penal scholars that punishment first and best reflects the operation of state power.
69. Pennsylvania House of Representatives 1847, 7.
70. William Bradford, An Enquiry How Far the Punishment of Death is Necessary in Pennsylvania (Philadelphia: T. Dobson, 1793). See Keedy, “History of the Pennsylvania Statute Creating Degrees of Murder,” for a detailed legal history of the statute.
71. Act of February 13, 1816 (P.L. 52), which codified the practice of the era. Espy records thirteen executions in Pennsylvania in the 1790s, down from fifty-two in the 1770s and seventy-six in the 1780s. Restrained use of executions continued after the 1790s, with nineteen in the 1800s, ten in the 1810s, and ten in the 1820s.
72. See n. 109 for further discussion of these cases.
73. Affirming Marietta and Rowe’s observation in Troubled Experiment, other official records related to the defendants in these cases, such as tax, property, and marriage records, are likewise scant, suggesting their transience and social marginality.
74. Other local newspapers of the era are lost. Even where a newspaper record survives, high production costs limited what was invested in reporting and producing original news content, particularly in matters that occurred largely at the margins of society. Much of each issue was commercial advertisements and literary excerpts; news was mostly in the form of letters and excerpts of previously published international and national reports. Local coverage was mostly in the form of announcements and political news. See J. Cutler Andrews, Pittsburgh’s Post-Gazette: The First Newspaper West of the Alleghenies (Boston: Chapman and Grimes, 1936). The occurrence of a murder was never the next day’s or the next issue’s news. Indeed, in only one of the capital cases in this era was there a contemporaneous newspaper report of the murder; the murder of Patrick Campbell by John Tiernan in 1817 was noted in the paper five days later. Instead, newspaper coverage began when the formal judicial processing of the case began and focused on that processing, with little attention to the circumstances of the crime or the backgrounds of the parties.
75. George D. Albert, History of the County of Westmoreland, Pennsylvania (Philadelphia: L. H. Everts and Company, 1882).
76. Ross lived within present-day Westmoreland County, outside the scope of this research.
77. Jen Manion, Liberty’s Prisoners: Carcarel Culture in Early America (Philadelphia: University of Pennsylvania Press, 2015).
78. Banner, Death Penalty, 7.
79. David B. Baker, “American Indian Executions in Historical Context,” Criminal Justice Studies 20, no. 4 (2007): 315–73.
80. Brackenridge’s (1918) lengthy account of the trial is the primary source material for this case. Hugh Henry Brackenridge, “The Trial of Mamachtaga, a Delaware Indian, the First Person Convicted of Murder West of the Alleghany Mountains, and Hanged for His Crime,” Western Pennsylvania Historical Magazine 1 (1918): 27–36.
81. Though Brackenridge described Mamachtaga through a series of demeaning stereotypes and was more generally regarded as hostile and racist toward Native Americans (see Hogeland, Whiskey Rebellion [2006], 17–19), the steps taken to provide him some measure of due process under adverse circumstances are noteworthy.
82. Throughout the entire period in which hangings were used in Pennsylvania, which ended when the state began use of the electric chair in 1915, botched hangings were commonplace. Newspaper accounts routinely described scenes in which prisoners hanged for twelve to fifteen minutes or more, slowly asphyxiating, before death was pronounced.
83. Suggestive of both the tenor and the limited documentation of the times, reliable accounts and scholarly treatments of the life and exploits of Captain Brady are not available.
84. Thomas Cushing, History of Allegheny County (Chicago: A. Warner and Co, 1889).
85. Richard M. Lytle, The Soldiers of America’s First Army (Lanham, MD: Scarecrow Press, 2004). Captain William Faulkner plays a minor role in a second act of this history. While garrisoned at Fort Fayette, he made his Washington County home available to John Neville, who used it as an office to collect the whiskey tax. With Washington County at the center of the Whiskey Rebellion, Faulkner’s action and Neville’s presence generated tremendous local outrage. So much so that locals tarred and feathered Faulkner and forced him to expel Neville; see Hogeland, Whiskey Rebellion (2006), 119–24.
86. Surviving military records, including General Wayne’s orderly books, make no reference to the murder. The only newspaper coverage of the case was of Dunning’s execution.
87. Respublica v. Honeyman, 2 U.S. 228 (1795), https://supreme.justia.com/cases/ federal/us/2/228/case.html.
88. David Rossman, “Were There No Appeal: The History of Review in American Criminal Courts,” Journal of Criminal Law and Criminology 81, no. 3 (1990): 518–66. Respublica v. Honeyman, 2 U.S. 228 (1795).
89. Hayburn, “Who Should Die?,” 179–80.
90. Though such conditions were not uncommon—George Dunn, another Allegheny County capital defendant, was similarly exiled in 1847—they were regarded as legally infirm; see Barry L. Salkin, “The Pardoning Power in Antebellum Pennsylvania,” PMHB 100, no. 4 (1976): 507–20.
91. Fidel M. Campet, “Black Pittsburgh’s Struggle to Maintain Citizenship Rights, 1790–1838,” Western Pennsylvania History (Winter 2012–13): 34–43.
92. Leonard D. Savitz, “A Brief History of Capital Punishment Legislation in Pennsylvania,” Prison Journal 38, no. 2 (1958): 50–74.
93. Post, “Early Efforts to Abolish Capital Punishment,” 42.
94. David Brion Davis, “The Movement to Abolish Capital Punishment in America, 1787–1861,” American Historical Review 63, no. 1 (1957): 23–46; Banner, Death Penalty, 131–37.
95. David J. Rothman, The Discovery of the Asylum: Social Order and Disorder in the New Republic (Boston: Little, Brown, 1971).
96. Ibid., 84.
97. Ibid., 84. This was the conclusion of an 1846 report on the conditions in Western Penitentiary. James Anderson, J. K. Morehead, Wilson McCandless, William Lecky, and William Robinson Jr., “Report of the Board of the Inspectors of the Western Penitentiary of Pennsylvania, for 1846,” Journal of the Senate of the Commonwealth of Pennsylvania, vol. 2 (Harrisburg, 1847).
98. Details of Tiernan’s case are available primarily through a lengthy account of his trial and confession published in 1818. Similar publications about high-profile cases, quickly produced and sensationalistic, remained common throughout the pre–Civil War era.
99. Andrew A. Lambing and John W. F. White, Allegheny County: Its Early History and Subsequent Development (Pittsburgh: Snowden and Peterson Publishers, 1888), 103.
100. The legal treatment of infanticide was an issue of particular interest at the time. William Bradford was particularly concerned that it was so difficult to distinguish murder from stillbirth, neglect, and incompetence. In reference to Philadelphia, he noted that there had been “fifteen women tried for child- murder” since 1778. Only three had been convicted, and two of those defend- ants were subsequently pardoned, leading him to conclude “where a positive law is so feebly enforced, there is reason to suspect it is fundamentally wrong;” Bradford, An Enquiry How Far the Punishment of Death is Necessary, 40.
101. The case of Susanna Cox, who had been executed for infanticide in Reading, Pennsylvania, in 1809, had provoked national and international opposition. Patricia Earnest Sutor, Russell Earnest, and Corrine Earnest, The Hanging of Susanna Cox: The True Story of Pennsylvania’s Most Notorious Infanticide and the Legend That’s Kept It Alive (Harrisburg, PA: Stackpole Books 2010).Rhode Island abolished public executions in 1833; see Stephen Chambers, “‘Neither Justice nor Mercy’: Public and Private Executions in Rhode Island, 1832–1833,” New England Quarterly 82, no. 3 (2009): 430–45.
102. Louis P. Masur, Rites of Execution: Capital Punishment and the Transformation of American Culture, 1776–1865 (New York: Oxford University Press, 1989). Between 1682 and 1834, 252 public executions were recorded in Pennsylvania, including two in Allegheny County. Between 1834 and 1915, when Pennsylvania ended jail executions, moved all executions to Rockview State Prison, and switched to the use of the electric chair, 441 private hangings in local jails were recorded.
103. Masur, Rites of Execution, 93–102.
104. R. J. M. Blackett, “‘. . . Freedom, or the Martyr’s Grave’: Black Pittsburgh’s Aid to the Fugitive Slave,” WPHM 113 (1989): 3–19; Joe W. Trotter Jr., River Jordan: African American Urban Life in the Ohio Valley (Lexington: University Press of Kentucky, 1998).
105. Nora Faires, “Immigrants and Industry: Peopling the ‘Iron City,’” in City at the Point: Essays on the Social History of Pittsburgh, ed. Samuel Hays (Pittsburgh: University of Pittsburgh Press, 1989), 3–31.
106. Laurence Glasco, “Double Burden: The Black Experience in Pittsburgh,” in City at the Point, ed. Hays, 69–109.
107. Though there are no surviving police or court records related to this case and the newspaper record is scant, tax records from 1836–37 indicate four black residents in this area of downtown, known as the South Ward. Two worked as common laborers and two as river boatmen; see Campet, “Black Pittsburgh’s Struggle to Maintain Citizenship Rights,” 37–38.
108. Pittsburgh Gazette, March 27, 1838.
109. In addition to these seven capital cases, my research identified thirteen other murder cases during this era: the cases of John Bradley (1785, manslaughter in the killing of an acquaintance), Captain Samuel Brady (1791; acquitted in the killing of Native Americans), Andrew Robertson (1794, acquitted in the killing of a Native American), James Stoops (1799, voluntary manslaughter in the killing of his wife), Thomas Pooly (1816, acquitted in the killing of his wife), Philip Winebiddle (1816, acquitted in the killing of his slave), Rebecca Johnson (1816, acquitted in the killing of her infant), James Ryan (1817, convicted of man- slaughter in the killing of Daniel Decker, a deserting soldier), J. McCool (1825, acquitted in the killing of his wife), William Hamilton (1829, convicted of second-degree murder in the killing of a friend), and Robert Haslet, Daniel Buckley, and Thomas Robinson (1833, convicted of second-degree murder in the killing of acquaintance; all of the defendants were juveniles). All of these defendants were white. Note also that in every case save one in which the murder took place across a race or gender boundary or within a family, the result was an acquittal.
110. An 1834 article in the Pittsburgh Gazette provides data for a statewide comparison. Reporting on data collected from clerks of every county in the state except one for the previous ten years, 280 murder cases were filed and 229 indictments resulted. Of those 229 cases that could proceed to trial, seventeen (7.5%) resulted in a first-degree murder conviction. Seventy-eight other cases (34%) resulted in a lesser conviction. The remaining cases resulted in an acquittal. Suggesting the rougher justice of the frontier, in Allegheny County over the entire era, 35 percent of known murder trials resulted in a capital conviction, 35 percent resulted in a lesser conviction, and 30 percent resulted in an acquittal.
111. This is a remarkable and deeply troubling case. James Stoops threw his wife, Catherine, into a fire and dragged her back in after she crawled out. She survived long enough to make a written statement against him, which he signed. He also made a separate confession. At trial, his defense contended her statement against him was inadmissible because a husband and wife “are but one person in law,” namely the husband. The court considered and rejected this argument on the grounds that her death invalidated this principle. He was convicted of voluntary manslaughter and sentenced to five years in prison (see Pennsylvania vs. James Stoops, Allegheny County, March term, 1799).
112. Campet, “Black Pittsburgh’s Struggle to Maintain Citizenship Rights,” 35.
113. Pittsburgh Weekly Gazette, November 19, 1816.
114. David Garland, “Penal Excess and Surplus Meaning: Public Torture Lynchings in Twentieth-Century America,” Law and Society Review 39, no. 4 (2005): 793–833, at 830.
115. S. Jones, Pittsburgh in the Year Eighteen Hundred and Twenty-Six (Pittsburgh: Johnston and Stockton, 1826).
116. Ibid., 4.