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Would you retain a punishment that, in the this one no farther than to inquire, what good common course of events, must be irremediably can be expected, or what present advantage is inflicted, at times, on the innocent, even if it derived, from retaining this punishment? Our secured the punishment of the guilty? But legislation surrendered it without a struggle, in that is far from being the effect. While you all cases, at first, but murder, attempt to murcannot, in particular cases, avoid its falling upon der, rape, and servile insurrection ; and afterinnocence, that very cause, from the imperfec- wards extended it to a species of aggravated tion of all testimony, will make it more fa- burglary.* Now, as these cases are those only vorable to the escape of the guilty; and the in which it has been deemed expedient to remaxim, so often quoted on this occasion, will tain this punishment,—as it has been abandoned no longer be perverted in order to effect a com- in all others,—the serious inquiry presents itpromise between the conscience of the juror self, why it was retained in these, or why abanand the severity of the law, when your punish- doned in the others? Its inefficiency, or some ments are such only as admit of remission when of the other objections to it, must have been they have been found to be unjustly imposed. apparent in all the other numerous offences in
Other arguments, not less forcible, -other which it has been dispensed with, or it would authorities, equally respectable,-might be ad- certainly have been retained, or restored. Takduced to show the ill effects of this species of ing this acknowledged inefficiency, in the nupunishment; but the many topics that are still merous cases, for the basis of the argument, let before me, in this report, oblige me to pursue us inquire whether there is any thing which
makes it peculiarly adapted to the enumerated but they may be compensated. For death alone there is no crimes, which it is unjust or inexpedient to ap
There is no man, ever so little versed in criminal ply to any of the others? We have three modes procedure, who does not feel & kind of terror, when he of discovering the truth on this subject: by thinks on how slight a circumstance the life of a man under reasoning from the general effects of particular accusation for a capital crime depends, and who does not motives on human actions; by analogy, or judgrecollect instances in which individuals have owed their ing from the effects in one case to the probable lives to some extraordinary circumstance, accidentally effects in another; or by experience of the efbrought to light at the critical moment of danger. The fect on the particular case. The general reachances of danger are, without doubt, very different, accord-soning upon the justice and efficacy of the puning to the different systems of procedure; but are there any ishment will not be repeated here, but it is judiciary forms, which can guard, in perfect security, against referred to as being conclusive as to all offences, the snares of falsehood and the illusions of error? Noi ab- and admitting of no exceptions that would apsolute security is a point of perfection which may be apply to murder, or either of the three other cases proached much nearer than bas yet been done without | in which our laws inflict it. If we reason from reaching it; for witnesses may deceive, or be deceived; the analogy, we should say the only argument ever number of those who testify to the same fact is not an infal- used in favor of death as a punishment is, that lible safegnard; and as to proofs which are drawn from cir: the awful example it presents will deter from cumstantial facts-circumstances the most conclusive, in
the commission of the offence; but by your appearance-those which it would seem impossible to ex. plain, but on the supposition of guilt-even these may be abandonment of it in all cases but these, you the effect of chance, or of preconcerted circumstances, ar
acknowledge it has no efficacy there. Analogy, ranged by interested persons. The only proof which would therefore, would lead us to the conclusion, that appear to bring complete conviction, the free confession of if it was useless in the many cases, it would be the accused, besides its being very rare, does not always so in the few. But it is acknowledged that no give absolate certainty; since men have been found, as in analogy, or any other mode of reasoning,—no the case of witchcraft, to confess themselves guilty of a theory, however plausible,—ought to influence, crime that it was impossiblo to commit. Those are not imaginary alarms, drawn from simple possibilities; there * Act of 20th March, 1818, (section 8;)-breaking into a are no criminal records that do not present examples of dwelling house in the night time, with intent to steal, etc. these fatal mistakes, and those which, by a concurrence of So far this crime was already punishable, under the act of singular events, have become known, give us reason to sus
The severe punishment of death is added, if any pect many innocent victims unknown. It may even be ob person was lawfully within the house, and if the offender served, that the cases in which the word evidence is most was armed with a dangerous weapon; or if not so armed, frequently used, are those in which the testimony is most if he armed himself in the house, or made an assault on the doubtful. When the alleged crime is one of those which person then being in the house lawfully. If the occupier of excites the most antipathy, or heightens the spirit of party, the house was not there lawfully, the offender escapos the witnesses unconsciously become accusers; they are no death! What a circumstance on which to hang the life of a more than the echoes of public clamor; the fermentation man! If the tenant has a good lease, the robber is banged; increases by its own action, and it is no longer permitted if he is an intruder, he escapes death. Again, if the robber to doubt. It was a frenzy of this kind which first seized the meets nobody in the house, and steals ten thousand dollars, people, and was afterwards communicated to the judges, in he only suffers imprisonment; but if he sees a servant, and the unfortunate affair of Calas." —Bentham's Theory of Re shakes his fist at him, he is hanged, although he should steal wards and Punishments.
nothing. If he breaks in without weapons, and rifles the * That it is better ton guilty should escape than one in house of all its contents, he is imprisoned only; if he finds a Docent suter, is invariably given to the jury as a maxim in fowling-piece, and carries it off in his hand, he is hanged;all capital cases, depending on circumstantial evidence; and another specimen of the laws which nothing but presumpwhere there are no irritating causes, it invariably succeeds. tion could attempt to amend.
when contradicted by experience. You have who argue in favor of capital punishment. tried this remedy, and found it ireffectual ! Driven from every other ground, they defend it The crimes to which you have applied it are as peculiarly applicable to the case of murder. decreasing, in number and atrocity, under its The slow abandonment of it for other offences influence! If so, it would be imprudent to make is a proof of the gradual advance of true prinany change, even under the most favorable ciples, and the pertinacity with which it is adprospects that the new system would be equally hered to in this, shows the force of early imefficient. Let us try it by this test. For the pressions and inveterate prejudice, even in the first three years after the transfer of the prov- most enlightened minds; yet that prejudice ince, there was not a single execution or con- must in time yield to the evidence which the viction for either of these crimes. In the course, practical results which have attended this inflichowever, of the first six years, four Indians, tion,-results which show, almost to demon. residing within the limits of the State, made an stration, that the public exhibition of homicide, attack on some of the settlers, and were either directed by the sacred voice of the law, so far given up by the tribe, or arrested and condemn- from repressing, does but encourage it, in pried; and two were executed as for murder, and vate quarrels. It is commonly advocated on the one negro was condemned and executed for in- principle of vindictive justice, * and can be, with surrection. In the next six years there were a due regard to facts, on no other. The murten convictions; in the succeeding four, to the derer deserves death! He that sheds man's month of January, 1822, fourteen ;-—so that we blood, by man shall his blood be shed! Blood find the number of convictions for the enumer- for blood! These are the exclamations that are ated crimes have nearly doubled in every period used instead of argument. Such sentiments, of six years, in the face of this efficient penalty. combined with the spectacle of legal revenge But the population of the State doubles only which they dictate, can produce but one effect. once in twenty years; therefore the increase of Half the odium and horror of taking human life this crime progresses in a ratio of three to one is lost, by the example of seeing it made a pubto that of the population; and we should not lic duty, while the motives are sanctified, which forget, in making this calculation, the important are but too apt to justify it in the mind of an and alarming fact, that numerous instances of irritated individual, who magnifies the injury homicide, and attempts to kill, occur, which are he has received, overlooks the provocation he rarely followed by prosecution, and more rarely gave, and thinks himself excusable in doing, to still by conviction. I mean, all that class that satisfy his passions, that which public justice have their origin in a mistaken sense of honor, does from the same motive,-revenge. The including not only the lives sacrificed to the sensation of horror, with which we see a human tyranny of public opinion in duels, but those being suffering a violent death, would certainly less excusable and increasing cases of wounds be increased, if the hand of justice was never and death, inflicted in atonement for some in- employed in the unholy work; and private jury offered to personal dignity. Under the vengeance would be checked by the laws, statute against stabbing, I find but three con- when they no longer encouraged it by their exvictions up to the year 1822 ; one instance of ample. rape, to the same period; and what is some- But however this vindictive feeling may bewhat singular, not a single instance of burglary tray itself in the warmth of conversation, it is from 1805 until 1820, in which year, and the not brought forward in any serious argument: succeeding one, there were two cases, just two there it is too universally exploded. What then years after it was made a capital crime. What is said ? That it is a punishment proportioned are we to conclude from this statement? First, to the crime; that, as murder is the highest of I think, that, of burglary, one of the crimes to all offences, death, the greatest of all punishwhich capital punishment is annexed, fifteen ments, ought to be applied to it. But why years' experience, (during which time there was ought it to be so applied ? To apportion the not a single conviction, and, as far as is known, punishment to the offence, does not mean to not a single indictment, under the law which make the culprit suffer the same quantity of denounced imprisonment as the penalty,) ought evil which he inflicted by his crime: that would to have convinced us, that the severer punishment was not necessary; while the two convictions which so soon succeeded the promulgation
* I had once a conversation with an exalted magistrate, a of that law, are strong testimony that the pun
man of high attainments and great liberality on the aboliishment of death is not an effectual remedy for tion of this punishment. He acceded to the propriety of the evil. As to rape, that its rare occurrence
the measure, in all cases but murder; because of the difis much more properly to be attributed to the ficulty of keeping the offender, and the severity of solitary
confinement, which was proposed to be substituted. Bat manners of the age than to any fear of the pun- when these two objections were, as I thought, satisfactorily ishment annexed; for if that were the efficient answered, he replied by one of the exclamations used in tho cause, we should certainly find it at least as text, and added, very frankly—“I must confess that there powerful in the case of murder—a crime to is some littlo feeling of recenge at the bottom of my opin. which the offender is not stimulated, as in the ion on this subject." If all other reasoners were equally form " case, by the strongest sensual appetite. candid, there would be less difficulty in establishing true
this is not the stronghold of those I doctrines.
be both impossible and unjust. It means, that adds to this account, “that the manners, printhe punishment should be such as to deter from ciples, and religion of the inliabitants of Tusthe commission of crime, but no greater. If, cany and of Rome are exactly the same. The then, death has not this effect, why ought it to abolition of death alone, as a punishment for be applied? But that it has not this effect is murder, produced this difference in the moral shown by reasoning and by fact. Why, then, character of the two nations." From this it will you continue to apply it? Pressed by this would appear, rather that the murderers of inquiry, we have the same eternal answer,— Tuscany were invited, by the severe punishments murder deserves death. Out of this circle no in the neighboring territories of Rome, than that reasoning can drive them. Sometimes, indeed, we are asked, Are you sure, that, if we give up has been supposed to imply, that blood could only be ex. this punishment, your substitute will prove effectual? If you mean so effectual as to eradicate piated by blood. But I am disposed to believe, with a late
commentator on this text* of Scripture, that it is rather s the crime, I answer, no! But I am as sure as
prediction than a law. The language of it is, simply, that experience, and analogy, and reason united, can
such is the folly and depravity of man that murder, in every make me, that it will be more effectual. What age, shall beget murder. Laws, therefore, which inflict is it we fear? Why do we hesitate? You death for murder, are, in my opinion, as unchristian as those know, you cannot deny, that the fear of the which justify or tolerate revenge; for the obligations of gallows does not restrain from murder. We Christianity upon individuals, to promote repentance, to have seen a deliberate murder committed in the forgive injuries, and to discharge the duties of universal very crowd assembled to enjoy the spectacle of benevolence, are equally binding upon states. a murderer's death; and do we still talk of its “The power over human life is the sole prerogative of force as an example? In defiance of your men- Him who gave it. Human laws, therefore, are in rebellion aced punishment, homicide stalks abroad and against this prerogative, when they transfer it to human raises its bloody hand, at noon-day, in your crowded streets; and, when arrested in its
“If society can be secured from violence by confining the career, takes shelter under the example of your murderer, so as to prevent a repetition of his crime, the end laws, and is protected, by their very severity,
of extirpation will be answered. In confinement, he may be from punishment. Try the efficacy of milder reformed ; and, if this should prove impracticable, he may punishments; they have succeeded. Your own
be restrained for a term of years that will probably be coe
val with his life. statutes,—all those of every State in the Union,
“There was a time when the punishment of oaptives with -prove that they have succeeded, in other of death or servitude, and the indiscriminate destruction of fences; try the great experiment on this also. peaccable husbandmen, women, and children, were thought Be consistent: restore capital punishment in to be essential to the success of war, and the safety of states. 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 max. earth, 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
“For the honor of humanity, it can be said that, in every had diminished, and those of an atrocious na- ago and country, there have been found persons in whom ture had become extremely rare," but the au- uncorrupted nature has triumphed over custom and law. thority of the venerable Franklin for these con- Else, why do we hear of houses being abandoned near to clusive facts; that in Tuscany, where murder places of public execution? Why do we see doors and winwas not punished with death, only five had been dows shut the days and hoars of criminal executions ? Why committed in twenty years, while in Rome, igate or elude the severity of their punishments ? Why is
do we hear of aid being secretly afforded to criminals to mitwhere that punishment is inflicted with great the public executioner of the law a subject of such general pomp and parade, sixty murders were commit- detestation? These things are latent struggles of reason, or ted in the short space of three months, in the rather the secret voice of God himself, speaking in the city and its vicinity.* “ It is remarkable,” he
*" I hope I shall not offend any one by taking the liberty • If ever any philosophy deserved the epithets of useful
to put my own construction on this celebrated passage, and
to inquire, why it should be deemed a precept at all. To and practical, it was that of Doctor Franklin. His opinions me, I must confess, it appears to contain nothing more than must have weight, not only from his character, but from a declaration of what will generally happen; and in this view the simple, intelligible reasoning by which they are sup
to stand exactly upon the same ground with such passages
as the following: He that leadeth into captivity, shall go ported. What says this venerable and irreproachable wit- into captivity ; ' He that taketh up the sword, shall fall by Dess in the cause of humanity, which we are now pleading? | the sword.' The form of expression is precisely the same in
both texts. Why, then, may they not all be interpreted in "I suspect the attachment to death, as a punishment for the same manner, and considered, not as commands, but as murder, in minds otherwise enlightened upon the subject denunciations! and, if so, the magistrate will no more be of capital punishment, arises from a false interpretation of a bound, by the text in Genesis, to punish murder with denth,
than he will, by the text in the Revelation, to sell every passage in the Old Testament, and that is, 'He that sheds
Guinea captain to our West India planters."— Rev. W. Tur. the blood of man, by man shall his blood be shed.' This ner.
those of Rome were attracted into Tuscany by same savage feeling has been more than once their abolition. We have nothing to appre- exhibited, in different parts of the Union, and hend, then, from this measure; and if any ill will always be produced by public executions, effects should follow the experiment, it is but unless it is replaced by the equally dangerous too easy to return to the system of extermination. feeling of admiration and interest for the suf
One argument, —the ferocious character im- ferer.* Which of the two is to prevail, depends pressed on the people by this punishment, on circumstances totally out of the power of the which was insisted on in the first report,-has lawgiver or the judge to foresee, or control; been so strongly illustrated by a subsequent but, by the indulgence of either feeling, every event in Pennsylvania, that I cannot omit stat- good end of punishment is totally defeated. ing it. After the execution of Lechler had I cannot, I ought not to dismiss this subject, gratified the people about York and Lancaster without once more pressing on the most serious with the spectacle of his death, and had pro- cuusideration of the Legislature, an argument duced its proper complement of homicide and which every new view of it convinces me is imother crimes, a poor wretch was condemned to portant, and, if we listen to the voice of consuffer the same fate, for a similar offence, in science, conclusive,—the irremediable nature another part of the State, where the people had of this punishment. Until men acquire new not yet been indulged with such a spectacle. faculties, and are enabled to decide upon innoThey, also, collected by thousands and tens of cence or guilt without the aid of fallible and thousands. The victim was brought out. All corruptible human evidence, so long will the the eyes, in the living mass that surrounded the risk be incurred of condemning the innocent. gibbet, were fixed on his countenance; and Were the consequence felt as deeply as it ought they waited, with strong desire, the expected to be, would there be an advocate for that punsignal for launching him into eternity:
ishment which, applied in such case, has all the There was a delay. They grew impatient. consequences of the most atrocious murder to It was prolonged, and they were outrageous: the innocent_snfferers,—worse than the worst cries like those which precede the tardy rising murderer! He stabs, or strikes, or poisons, and of the curtain, in a theatre, were beard. Im- the victim dies,-he dies unconscious of the patient for the delight they expected in seeing a blow, without being made a spectacle to satisfy fellow-creature die, they raised a ferocious cry. ferocious curiosity, and without the torture of But when it was at last announced that a re- leaving his dearest friends doubtful of his innoprieve had left them no hope of witnessing his cence, or seeing them abandon him under he agonies, their fury knew no bounds; and the conviction of his guilt. He dies, and his death poor maniac, for it was discovered that he was is like one of those inevitable chances to which insane, was with difficulty snatched, by the offi- all mortals are subject. His family are discers of justice, from the fate which the most tressed, but not dishonored ; his death is violent among them seemed determined to in- lamented by his friends, and, if his life deflict.* This is not an overcharged picture: the served it, honored by his country. But the
death inflicted by the laws,—the murder of the human heart, against the folly and cruelty of public punish- innocent under its holy forms, has no such mit
igating circumstances. Slow in its approach, “ I shall conclude this inquiry by observing, that the same uncertain in its stroke, its victim feels not only false religion and philosophy which once kindled the fire on the sickness of the heart that arises from the the altar of persecution, now dooms the criminal to public alternation of hope and fear, until his doom is ignominy and death. In proportion as the principles of pronounced; but when that becomes inevitaphilosophy and Christianity are understood, they will agree ble,-alone, the tenant of a dungeon during in extinguishing the one and destroying the other. If these every moment that the lenity of the law pra principles continue to extend their influence upon govern-longs his life,,he is made to feel all those anment, as they have done for some time past, I cannot help ticipations, worse than a thousand deaths. The entertaining a hope, that the time is not very distant, consciousness of innocence, that which is our when the gallows, the pillory, the stocks, the whipping support under other miseries, is here converted post, and the wheel-barrow, (the usual engines of public
a source of bitter anguish, when it is found punishment,) will be connected with the history of the rack and the stake, as marks of the barbarity of ages and coun. when the ties which connected him to his coun
to be no protection from infamy and death; and tries, and as melancholy proofs of the feeble operation of try, his friends, his family, are torn asunder, no reason and religion on the human mind."-Inquiry upon Public Punishments.
* This disgraceful scene took place at Orwigsburgh. The * The tendency of public executions, at times, to elevato wretched madman, who was so near suffering, was named the sufferer to the honors of saintship, and lose the detesta. Zimmerman. I have the details from a gentleman of the tion due to his crime in admiration for the piety of the new first respectability in Pennsylvania My informant adds to convert, is not confined to the United States. The sceno his account of this transaction—"Executions in this State described in the first report, of the execution of the mailaro scenes of riot, and every species of wickedness ; twenty, robbers at Baltimore, has been represented in other counthirty, and forty thousand persons have been in attendance, tries. A note to that part of the report, in a German transon such occasions. In country parts, two and even three lation, says—"One would think that the author was an eyedays are employed in the merry-making, mach after the witness to the execution of the murderer Jonas, in thua ier of fairs in formor times."
place, --s0 exactly is the scene described."
consoling reflection mitigates the misery of that | than to add one more example to the many that moment. He leaves unmerited infamy to his preceded it of the danger, and I may add imchildren; a name stamped with dishonor to piety, of using this attribute of the divine power, their surviving parent, and bows down the gray without the infallibility that can alone properly heads of his own with sorrow to the grave. As direct it. And this objection alone, did none he walks from his dungeon, he sees the thou- of the other cogent reasons against capital punsands who have come to gaze on his last agony: ment exist,—this alone would make me hail the he mounts the fatal tree, and a life of innocence decree for its abolition as an event, so honorais closed by a death of dishonor. This is no ble to my country, and so consoling to humanity, picture of the imagination. Would to God it as to be cheaply purchased by the labor of a were! Would to God that, if death must be life. 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 “Who would believe that a first impression only have happened, but they must be repeated: may sometimes decide the question of life and the same causes will produce the same effects. death? A fatal mass of circumstances, which The innocent have suffered the death of the seem as if fate had collected them together, for guilty: the innocent will suffer. We know it. the ruin of an unfortunate wretch, -a crowd The horrible truth stares us in the face. We of mute witnesses, (and from that character dare not deny, and cannot evade it. A word, more dangerous,) — depose against innocence: while it saves the innocent, will secure the pun- they prejudice the judge; his indignation is ishment of the guilty; and shall we hesitate to roused; his zeal contributes to seduce him. pronounce it? Shall we content ourselves with Losing the character of the judge in that of the our own imagined exemption from this fate, and accuser, he looks only to that which is evidence shut our ears to the cries of justice and human- of guilt, and he sacrifices to his own reasonings ity? Shall “sensibility (as has been finely ob- the man whom he would have saved had he served) sleep in the lap of luxury,"* and not listened only to the proofs of the law. An unawake at the voice of wretchedness? I urge foreseen event sometimes shows that innocence this point with more earnestness, because I have has sunk under the weight of conjectures, and witnessed more than one condemnation under falsifies the conclusions which circumstances false instructions of law, or perjured, or mistaken had induced the magistrate to draw. Truth testimony:-sentences that would now have lifts up the veil with which probability had enbeen reversed, if the unfortunate sufferers were veloped her; but she appears too late! The within the reach of mercy. I have seen, in the blood of the innocent cries aloud for vengeance gloom and silence of the dungeon, the deep against the prejudice of his judge; and the maconcentrated expression of indignation which gistrate passes the rest of his life deploring a contended with grief; havə heard the earnest misfortune which his BEPENTANCE CANNOT REasseverations of innocence, made in tones which PAIR. no art could imitate; and listened with awe to The earnestness for this reforın 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.
* D’Aguesseau, 16 Mercuriale.