who argue in favor of capital punishment. Driven from every other ground, they defend it as peculiarly applicable to the case of murder. The slow abandonment of it for other offences is a proof of the gradual advance of true principles, and the pertinacity with which it is adhered to in this, shows the force of early impressions and inveterate prejudice, even in the must in time yield to the evidence which the practical results which have attended this infliction,-results which show, almost to demonstration, that the public exhibition of homicide, directed by the sacred voice of the law, so far from repressing, does but encourage it, in private quarrels. It is commonly advocated on the a due regard to facts, on no other. The murderer deserves death! He that sheds man's blood, by man shall his blood be shed! Blood for blood! These are the exclamations that are used instead of argument. Such sentiments, combined with the spectacle of legal revenge which they dictate, can produce but one effect. Half the odium and horror of taking human life is lost, by the example of seeing it made a public duty, while the motives are sanctified, which are but too apt to justify it in the mind of an irritated individual, who magnifies the injury he has received, overlooks the provocation he gave, and thinks himself excusable in doing, to satisfy his passions, that which public justice does from the same motive,-revenge. The sensation of horror, with which we see a human being suffering a violent death, would certainly be increased, if the hand of justice was never employed in the unholy work; and private vengeance would be checked by the laws, when they no longer encouraged it by their example. when contradicted by experience. You have tried this remedy, and found it ineffectual! The crimes to which you have applied it are decreasing, in number and atrocity, under its influence! If so, it would be imprudent to make any change, even under the most favorable prospects that the new system would be equally efficient. Let us try it by this test. For the first three years after the transfer of the prov-most enlightened minds; yet that prejudice ince, there was not a single execution or conviction for either of these crimes. In the course, however, of the first six years, four Indians, residing within the limits of the State, made an attack on some of the settlers, and were either given up by the tribe, or arrested and condemned; and two were executed as for murder, and one negro was condemned and executed for in-principle of vindictive justice,* and can be, with surrection. In the next six years there were ten convictions; in the succeeding four, to the month of January, 1822, fourteen;-so that we find the number of convictions for the enumerated crimes have nearly doubled in every period of six years, in the face of this efficient penalty. But the population of the State doubles only once in twenty years; therefore the increase of this crime progresses in a ratio of three to one to that of the population; and we should not forget, in making this calculation, the important and alarming fact, that numerous instances of homicide, and attempts to kill, occur, which are rarely followed by prosecution, and more rarely still by conviction. I mean, all that class that have their origin in a mistaken sense of honor, including not only the lives sacrificed to the tyranny of public opinion in duels, but those less excusable and increasing cases of wounds and death, inflicted in atonement for some injury offered to personal dignity. Under the statute against stabbing, I find but three convictions up to the year 1822; one instance of rape, to the same period; and what is somewhat singular, not a single instance of burglary from 1805 until 1820, in which year, and the succeeding one, there were two cases, just two years after it was made a capital crime. What are we to conclude from this statement? First, I think, that, of burglary, one of the crimes to which capital punishment is annexed, fifteen years' experience, (during which time there was not a single conviction, and, as far as is known, not a single indictment, under the law which denounced imprisonment as the penalty,) ought to have convinced us, that the severer punishment was not necessary; while the two convictions which so soon succeeded the promulgation of that law, are strong testimony that the punishment of death is not an effectual remedy for the evil. As to rape, that its rare occurrence is much more properly to be attributed to the manners of the age than to any fear of the punishment annexed; for if that were the efficient cause, we should certainly find it at least as powerful in the case of murder-a crime to which the offender is not stimulated, as in the form case, by the strongest sensual appetite. this is not the stronghold of those But however this vindictive feeling may betray itself in the warmth of conversation, it is not brought forward in any serious argument: there it is too universally exploded. What then is said? That it is a punishment proportioned to the crime; that, as murder is the highest of all offences, death, the greatest of all punishments, ought to be applied to it. But why ought it to be so applied? To apportion the punishment to the offence, does not mean to make the culprit suffer the same quantity of evil which he inflicted by his crime: that would * I had once a conversation with an exalted magistrate, a man of high attainments and great liberality on the aboli tion of this punishment. He acceded to the propriety of the measure, in all cases but murder; because of the dif ficulty of keeping the offender, and the severity of solitary confinement, which was proposed to be substituted. But when these two objections were, as I thought, satisfactorily answered, he replied by one of the exclamations used in the text, and added, very frankly-"I must confess that there is some little feeling of revenge at the bottom of my opinion on this subject." If all other reasoners were equally candid, there would be less difficulty in establishing truo doctrines. adds to this account, "that the manners, principles, and religion of the inhabitants of Tuscany and of Rome are exactly the same. The abolition of death alone, as a punishment for murder, produced this difference in the moral character of the two nations." From this it would appear, rather that the murderers of Tuscany were invited, by the severe punishments in the neighboring territories of Rome, than that has been supposed to imply, that blood could only be explated by blood. But I am disposed to believe, with a late prediction than a law. The language of it is, simply, that commentator on this text* of Scripture, that it is rather a such is the folly and depravity of man that murder, in every age, shall beget murder. Laws, therefore, which inflict death for murder, are, in my opinion, as unchristian as those which justify or tolerate revenge; for the obligations of Christianity upon individuals, to promote repentance, to forgive injuries, and to discharge the duties of universal benevolence, are equally binding upon states. "The power over human life is the sole prerogative of Him who gave it. Human laws, therefore, are in rebellion against this prerogative, when they transfer it to human hands. "If society can be secured from violence by confining the murderer, so as to prevent a repetition of his crime, the end be both impossible and unjust. It means, that the punishment should be such as to deter from the commission of crime, but no greater. If, then, death has not this effect, why ought it to be applied? But that it has not this effect is shown by reasoning and by fact. Why, then, will you continue to apply it? Pressed by this inquiry, we have the same eternal answer,murder deserves death. Out of this circle no reasoning can drive them. Sometimes, indeed, we are asked, Are you sure, that, if we give up this punishment, your substitute will prove effectual? If you mean so effectual as to eradicate the crime, I answer, no! But I am as sure as experience, and analogy, and reason united, can make me, that it will be more effectual. What is it we fear? Why do we hesitate? You know, you cannot deny, that the fear of the gallows does not restrain from murder. We have seen a deliberate murder committed in the very crowd assembled to enjoy the spectacle of a murderer's death; and do we still talk of its force as an example? In defiance of your menaced punishment, homicide stalks abroad and raises its bloody hand, at noon-day, in your crowded streets; and, when arrested in its career, takes shelter under the example of your laws, and is protected, by their very severity, from punishment. Try the efficacy of milder punishments; they have succeeded. Your own statutes, all those of every State in the Union, -prove that they have succeeded, in other offences; try the great experiment on this also. Be consistent: restore capital punishment in other crimes, or abolish it in this. Do not fear But experience has taught us that this is not the case; and, that the murderers from all quarters of the in proportion as humanity has triumphed over these maxearth, seduced by the mildness of your penal ims of false policy, wars have been less frequent and terrible, code, will choose this as the theatre of their ex- and nations have enjoyed longer intervals of internal tranploits. On this point we have a most persua-quillity. The virtues are all parts of a circle. Whatever is sive example. In Tuscany, as we have seen, humane, is wise; whatever is wise, is just; and whatever is neither murder nor any other crime was pun-wise, just, and humane, will be found to be the true interest ished with death, for more than twenty years, of states, whether criminal or foreign enemies are the subduring which time we have not only the official ject of their legislation. declaration of the sovereign, that "all crimes had diminished, and those of an atrocious nature had become extremely rare," but the authority of the venerable Franklin for these conclusive facts; that in Tuscany, where murder was not punished with death, only five had been committed in twenty years,-while in Rome, where that punishment is inflicted with great pomp and parade, sixty murders were committed in the short space of three months, in the city and its vicinity.* "It is remarkable," he *If ever any philosophy deserved the epithets of useful and practical, it was that of Doctor Franklin. His opinions must have weight, not only from his character, but from the simple, intelligible reasoning by which they are supported. What says this venerable and irreproachable witness in the cause of humanity, which we are now pleading? "I suspect the attachment to death, as a punishment for murder, in minds otherwise enlightened upon the subject of capital punishment, arises from a false interpretation of a passage in the Old Testament, and that is, 'He that sheds the blood of man, by man shall his blood be shed.' This of extirpation will be answered. In confinement, he may be reformed; and, if this should prove impracticable, he may be restrained for a term of years that will probably be coeval with his life. "There was a time when the punishment of captives with death or servitude, and the indiscriminate destruction of peaceable husbandmen, women, and children, were thought to be essential to the success of war, and the safety of states. "For the honor of humanity, it can be said that, in every age and country, there have been found persons in whom uncorrupted nature has triumphed over custom and law. Else, why do we hear of houses being abandoned near to places of public execution? Why do we see doors and win dows shut the days and hours of criminal executions? Why do we hear of aid being secretly afforded to criminals to mit igate or elude the severity of their punishments? Why is the public executioner of the law a subject of such general detestation? These things are latent struggles of reason, or rather the secret voice of God himself, speaking in the "I hope I shall not offend any one by taking the liberty to put my own construction on this celebrated passage, and to inquire, why it should be deemed a precept at all? To me, I must confess, it appears to contain nothing more than a declaration of what will generally happen; and in this view to stand exactly upon the same ground with such passages as the following: He that leadeth into captivity, shall go into captivity; He that taketh up the sword, shall fall by the sword.' The form of expression is precisely the same in both texts. Why, then, may they not all be interpreted in the same manner, and considered, not as commands, but as denunciations? and, if so, the magistrate will no more be bound, by the text in Genesis, to punish murder with death, than he will, by the text in the Revelation, to sell every Guinea captain to our West India planters."-Rev. W. Tur ner. those of Rome were attracted into Tuscany by their abolition. We have nothing to apprehend, then, from this measure; and if any ill effects should follow the experiment, it is but too easy to return to the system of extermination. One argument, the ferocious character impressed on the people by this punishment, which was insisted on in the first report,-has been so strongly illustrated by a subsequent event in Pennsylvania, that I cannot omit stating it. After the execution of Lechler had gratified the people about York and Lancaster with the spectacle of his death, and had produced its proper complement of homicide and other crimes, a poor wretch was condemned to suffer the same fate, for a similar offence, in another part of the State, where the people had not yet been indulged with such a spectacle. They, also, collected by thousands and tens of thousands. The victim was brought out. All the eyes, in the living mass that surrounded the gibbet, were fixed on his countenance; and they waited, with strong desire, the expected signal for launching him into eternity. There was a delay. They grew impatient. It was prolonged, and they were outrageous: cries like those which precede the tardy rising of the curtain, in a theatre, were heard. Impatient for the delight they expected in seeing a fellow-creature die, they raised a ferocious cry. But when it was at last announced that a reprieve had left them no hope of witnessing his agonies, their fury knew no bounds; and the poor maniac, for it was discovered that he was insane, was with difficulty snatched, by the officers of justice, from the fate which the most violent among them seemed determined to inflict.* This is not an overcharged picture: the human heart, against the folly and cruelty of public punish ments. same savage feeling has been more than once exhibited, in different parts of the Union, and will always be produced by public executions, unless it is replaced by the equally dangerous feeling of admiration and interest for the sufferer.* Which of the two is to prevail, depends on circumstances totally out of the power of the lawgiver or the judge to foresee, or control; but, by the indulgence of either feeling, every good end of punishment is totally defeated. I cannot, I ought not to dismiss this subject, without once more pressing on the most serious consideration of the Legislature, an argument which every new view of it convinces me is important, and, if we listen to the voice of conscience, conclusive,—the irremediable nature of this punishment. Until men acquire new faculties, and are enabled to decide upon innocence or guilt without the aid of fallible and corruptible human evidence, so long will the risk be incurred of condemning the innocent. Were the consequence felt as deeply as it ought to be, would there be an advocate for that punishment which, applied in such case, has all the consequences of the most atrocious murder to the innocent_sufferers,-worse than the worst murderer! He stabs, or strikes, or poisons, and the victim dies, he dies unconscious of the blow, without being made a spectacle to satisfy ferocious curiosity, and without the torture of leaving his dearest friends doubtful of his innocence, or seeing them abandon him under he conviction of his guilt. He dies, and his death is like one of those inevitable chances to which all mortals are subject. His family are distressed, but not dishonored; his death is lamented by his friends, and, if his life deserved it, honored by his country. But the death inflicted by the laws,-the murder of the innocent under its holy forms,-has no such mitigating circumstances. Slow in its approach, uncertain in its stroke, its victim feels not only the sickness of the heart that arises from the alternation of hope and fear, until his doom is pronounced; but when that becomes inevita "I shall conclude this inquiry by observing, that the same false religion and philosophy which once kindled the fire on the altar of persecution, now dooms the criminal to public ignominy and death. In proportion as the principles of philosophy and Christianity are understood, they will agreeble,-alone, the tenant of a dungeon during in extinguishing the one and destroying the other. If these principles continue to extend their influence upon government, as they have done for some time past, I cannot help entertaining a hope, that the time is not very distant, when the gallows, the pillory, the stocks, the whippingpost, and the wheel-barrow, (the usual engines of public punishment,) will be connected with the history of the rack and the stake, as marks of the barbarity of ages and countries, and as melancholy proofs of the feeble operation of every moment that the lenity of the law pro longs his life, he is made to feel all those anticipations, worse than a thousand deaths. The consciousness of innocence, that which is our support under other miseries, is here converted into a source of bitter anguish, when it is found to be no protection from infamy and death; and when the ties which connected him to his coun reason and religion on the human mind."-Inquiry upon try, his friends, his family, are torn asunder, no Public Punishments. *This disgraceful scene took place at Orwigsburgh. The wretched madman, who was so near suffering, was named Zimmerman. I have the details from a gentleman of the first respectability in Pennsylvania. My informant adds to his account of this transaction-"Executions in this State are scenes of riot, and every species of wickedness; twenty, thirty, and forty thousand persons have been in attendance, on such occasions. In country parts, two and even three Jays are employed in the merry-making, much after the r of fairs in former times." The tendency of publie executions, at times, to elevato the sufferer to the honors of saintship, and lose the detestation due to his crime in admiration for the piety of the new convert, is not confined to the United States. The scene described in the first report, of the execution of the mailrobbers at Baltimore, has been represented in other countries. A note to that part of the report, in a German translation, says-" One would think that the author was an eyewitness to the execution of the murderer Jonas, in this place, so exactly is the scene described." than to add one more example to the many that preceded it of the danger, and I may add impiety, of using this attribute of the divine power, without the infallibility that can alone properly direct it. And this objection alone, did none of the other cogent reasons against capital punment exist, this alone would make me hail the decree for its abolition as an event, so honorable to my country, and so consoling to humanity, as to be cheaply purchased by the labor of a life. consoling reflection mitigates the misery of that moment. He leaves unmerited infamy to his children; a name stamped with dishonor to their surviving parent, and bows down the gray heads of his own with sorrow to the grave. As he walks from his dungeon, he sees the thousands who have come to gaze on his last agony: he mounts the fatal tree, and a life of innocence is closed by a death of dishonor. This is no picture of the imagination. Would to God it were! Would to God that, if death must be inflicted, some sure means might be discovered I cannot quit this part of the subject without of making it fall upon the guilty. These things submitting to the general assembly the opinion have happened. These legal murders have of one whose authority would justify an experibeen committed! and who were the primary ment even more hazardous than this, but whose causes of the crime? Who authorized a pun- arguments are as convincing as his name is reishment which, once inflicted, could never be spectable. They are not the opinions of one remitted to the innocent? Who tied the cord, whom the cant, which is used to cover the igor let fall the axe upon the guiltless head? Not norance of the day, would call a theorist, but the executioner, the vile instrument who is of a man whose whole life was spent in the usehired to do the work of death,-not the jury ful and honorable functions of the highest mawho convict, or the judge who condemns,-not gistracy, whose name is always mentioned with the law which sanctions these errors; but the reverence, and whose doctrines are quoted as legislators who made the law,-those who, hav-authority, wherever the true principles of legal ing the power, did not repeal it. These are knowledge are regarded. Hear the venerable the persons responsible to their country, their D'Aguesseau :consciences, and their God. These horrors not only have happened, but they must be repeated: the same causes will produce the same effects. The innocent have suffered the death of the guilty: the innocent will suffer. We know it. The horrible truth stares us in the face. We dare not deny, and cannot evade it. A word, while it saves the innocent, will secure the punishment of the guilty; and shall we hesitate to pronounce it? Shall we content ourselves with our own imagined exemption from this fate, and shut our ears to the cries of justice and humanity? Shall "sensibility (as has been finely observed) sleep in the lap of luxury,"* and not awake at the voice of wretchedness? I urge this point with more earnestness, because I have witnessed more than one condemnation under false instructions of law, or perjured, or mistaken testimony:-sentences that would now have been reversed, if the unfortunate sufferers were within the reach of mercy. I have seen, in the gloom and silence of the dungeon, the deep concentrated expression of indignation which contended with grief; have heard the earnest asseverations of innocence, made in tones which no art could imitate; and listened with awe to The earnestness for this reform is sometimes the dreadful adjuration, poured forth by one of reproached to its advocates as proceeding from these victims, with an energy and solemnity a childish fear, that magnifies the apprehension that seemed superhuman, summoning his false of that which we know is appointed to us all. accuser and his mistaken judge to meet him be- Not so. The value of life is not overrated in fore the throne of God. Such an appeal to the the argument. There are occasions in which high tribunal which never errs, and before the risk of its loss must be incurred; in which which he who made it was in a few hours to the certainty of death must be encountered appear, was calculated to create a belief of his with firmness and composure. These occasions innocence: that belief was changed into cer- are presented by patriotism, in defence of our tainty. The perjury of the witness was discov-country and our country's rights,-by benevoered, and he fled from the infamy that awaited lence, in the rescue of another from danger,him; but it was too late for any other effect, by religion, whenever persecution offers the Eden. Principles of Penal Law. "Who would believe that a first impression may sometimes decide the question of life and death? A fatal mass of circumstances, which seem as if fate had collected them together, for the ruin of an unfortunate wretch,-a crowd of mute witnesses, (and from that character more dangerous,)-depose against innocence: they prejudice the judge; his indignation is roused; his zeal contributes to seduce him. Losing the character of the judge in that of the accuser, he looks only to that which is evidence of guilt, and he sacrifices to his own reasonings the man whom he would have saved had he listened only to the proofs of the law. An unforeseen event sometimes shows that innocence has sunk under the weight of conjectures, and falsifies the conclusions which circumstances had induced the magistrate to draw. Truth lifts up the veil with which probability had enveloped her; but she appears too late! The blood of the innocent cries aloud for vengeance against the prejudice of his judge; and the magistrate passes the rest of his life deploring a misfortune which his REPENTANCE CANNOT REPAIR.' * D'Aguesseau, 16 Mercuriale. martyr's crown to the faithful; and it is not known, or believed, that those who propose to abolish death as a punishment either fear it as a natural event, or shun its encounter when required by duty, more than those who think it ought to be retained. He who preserved the life of a Roman citizen was entitled to a more honorable recompense than the daring soldier who ventured his own, by first mounting the breach. The civic was preferred to the mural crown. The Romans, during the best period of their history, reduced this abolition to practice. "Far," said their great orator, endeavoring, in a corrupted age, to restore the ancient feeling on the subject,-"far from us be the punishment of death-its ministers-its instruments. Remove them, not only from their actual operation on our bodies, but banish them from our eyes, our ears, our thoughts; for, not only the executions, but the apprehension, the existence, the very mention of these things, is disgraceful to a freeman and a Roman citizen." "* Yet the Romans were not very remarkable for * Carnifex et abductio capitis, et nomen ipsum crucis absit, non modo a corpore civium Romanorum sed etiam a cogi tatione, oculis, auribus-harum etiam omnium rerum non solum eventus atque perpessio, sed etiam conditio, expectatio, mentio ipsa denique, indigna cive Romano, atque homine libero est.-Cicero pro Rabirio. a pusillanimous fear of death. In the age of which I speak, they did not want the excitement of capital punishment to induce them to die for their country. On the contrary, it might, perhaps, be plausibly argued, that the servile disposition, which disgraced the latter ages of the republic, was in some measure caused by the change, which made the sacrifice of life the expiation for crime, instead of the consummation and proof of patriotic devotion. Conscious of having been guilty of much repetition, and certain that I have weakened, by my version of them, arguments much better used by others, I am yet fearful of having omitted many things that might have an effect in convincing any one of those to whom this report is addressed. The firm religious belief I have of the truth of the doctrine I advance, contrasted with the sense of my incapacity to enforce it upon others, must have produced obscurity where the interests of humanity require there should be light, and confusion where the performance of my great duty demands order. But the truth will appear in spite of these obstacles. From the midst of the cloud, with which human imperfections has surrounded her, her voice, like that of the Almighty from the Mount, will be heard reiterating to nations, as well as to individuals, the great command, "THOU SHALT NOT KILL." |