MANDATORY CAPITAL PUNISHMENT WAS COMMON FOR CERTAIN CRIMES IN THE MID 19TH CENTURY. OBSERVERS COMMENTED THAT SUCH PENALTIES WERE USUALLY GIVEN ONLY TO THE POOR AND TO MEMBERS OF UNPOPULAR MINORITES, SUCH AS THE IRISH. MANY COMPLAINED ABOUT PUBLIC HANGINGS, CONTENDING THAT THIS TAUGHT VIOLENCE. OTHERS INSISTED THE DEATH PANALTY WAS CRUEL AND UNUSUAL PUNISHMENT. THE MOST COMMON ARGUMENT, HOWEVER, WAS THAT JURIES OFTEN ACQUITTED A DEFENDANT ACCUSED OF MURDER RATHER THAN BE RESPONSIBLE FOR SENTENCING HIM OR HER TO DEATH. BOTH HORACE GREELY (IN 1845) AND WALT WHITMAN (IN 1846) WROTE NEWSPAPER EDITORIALS CHARGING THAT DANGEROUS MURDERERS WERE WALKING THE STREETS BECAUSE JURIES WERE RELUCTANT TO CONVICT THEM DUE TO MANDATORY DEATH PENALTIES. IN 1848, A SIMILAR ARGUMENT WAS MADE BEFORE THE ALABAMA HOUSE OF REPRESENTATIVES. IN 1841 A COMMITTEE OF THE NEW YORK ASSEMBLY HEARD THE SAME STATEMENTS. BOTH CONNECTICUT AND MASSACHUSETTS DEBATED MANDATORY DEATH PENALTIES AND IN 1837 MAINE ABOLISHED CAPITAL PUNISHMENT. A CONTRIBUTING FACTOR WAS THE DIFFICULTY IN PROCURING CONVICTIONS. WISCONSIN OUTLAWED CAPITAL PUNISHMENT IN 1853 FOR SIMILAR REASONS. ANTEBELLUM AMERICANS, WHO HAD HAD CONSIDERABLE EXPERIENCE WITH MANDATORY DEATH PENALTIES, CONSIDERED THEM A DANGEROUS FAILURE. THE ONLY THING THEY DETERRED WAS A JURY FINDING OF GUILTY. EXTENSIVE NOTES ARE PROVIDED. (GLR)