« AnteriorContinuar »
other society which shall attempt its destruction. But this, as in the case of individuals, must be only while the attempt is making, and when there is no other means to defeat it. And it is in that sense only that I understand the word so often used, so often abused, so little understood, — necessity. It exists between nations during war, or a nation and one of its component parts in a rebellion or insurrection, — between individuals during the moment of an attempt against life, which cannot otherwise be repelled; but between society and individuals, organized as the former now is, with all the means of repression and self-defense at its command, never. I come then to the conclusion, in which I desire most explicitly to be understood, that although the right to punish with death might be abstractedly conceded to exist in certain societies, and under certain circumstances which might make it necessary, yet, composed as society now is, these circumstances cannot reasonably be even supposed to occur; that, therefore, no necessity, and of course no right, to inflict death as a punishment does exist.
There is also great force in the reasonings which have been used to rebut that which founds the right to take life for crimes, on an original contract, made by individuals on the first formation of society: 1. That no such contract is proved, or can be well imagined. 2. That if it were, it would be limited to the case of defense. The parties to such contract could only give to the society those rights which they individually had: their only right over the life of another is to defend their own. They can give that to society, and they can give no more. In this case also, therefore, the right resolves itself into that of doing what is necessary for preservation. The great inquiry then recurs, Is the punishment of death in any civilized society necessary, for the preservation either of the lives of its citizens individually, or of their social collective rights? If it be not necessary, I hope it has been proved not to be just; and if neither just nor necessary, can it be expedient? To be necessary, it must be shown that the lives of the citizens and the existence of society cannot be preserved without it. But can this be maintained in the face of so many proofs? Egypt, for twenty years, during the reign of Sabaco — Rome, , for two hundred and fifty years — Tuscany, for more than twenty-five – Russia, for twenty-one, during the reign of Elizabeth, are so many proofs to the contrary. Nay, if those are right who tell you that the penal laws of Spain were abrogated by the transfer, this State (Louisiana) itself gives an unanswerable proof that no such necessity exists; for if those laws were not in force, it is very clear that there were none imposing the penalty of death, from the time of the transfer, in December, 1803, to the 5th of May, 1805, when our first penal law was passed. Yet, during that period, when national prejudices ran high — when one Government had abandoned and the other had not yet established its authority,- there was not, I believe, a single instance of murder, or of any attempt to destroy the order of society; so that one argument or the other must be given up. Either the Spanish laws existed, or we ourselves furnish a proof that a nation may exist, in peace, without the punishment of death. Societies have, then, existed without it. In those societies, therefore, it was not necessary. Is there anything in the state of ours that makes it so? It has not, as far as I have observed, been even suggested. But, if not absolutely necessary, have its advocates even the poor pretext that it is convenient,
that the crimes for which it is reserved diminish under its operation, in a greater proportion than those which incur a different punishment? The reverse is the melancholy truth. Murder, and those attempts to murder which are capitally punished, have increased in some of the United States, to a degree that not only creates general alarm, but, by the atrocity with which they are perpetrated, fix a stain on the national character, which it will be extremely difficult to efface. I might rely, for this fact, on the general impression which every member of the body I address must have on this subject; but as the result is capable of being demonstrated by figures, I pray their attention to the tables annexed to this report,- in which, although they are far from being as complete as could be wished, they will see an increase of those crimes that demonstrates, if anything can do it, the inefficiency of the means adopted, and so strangely persisted in, of repressing them. The small number of executions, compared with the well-authenticated instances of the crime, shows that the severity of the punishment increases the chance of acquittal; and the idle curiosity which draws so many thousands to witness the exhibition of human suffering at the executions -- the levity with which the spectacle is beheld — demonstrates its demoralizing and heart-hardening effects,— while the crimes committed at the very moment of the example intended to deter from the commission, show how entirely ineffectual it is. One instance of this is so remarkable, that I cannot omit its detail. In the year 1822, a person, named Jolin Lechler, was executed at Lancaster, in Pennsylvania, for an atrocious murder. The execution was, as usual, witnessed by an immense multitude; and of the salutary effect it had on their feelings and morals we may judge from the following extract from a newspaper, printed in the neighborhood, — the material facts, which are stated in it, having been since confirmed to me, by unquestionable authority:
"It has long," says the judicious editor, “been a controverted point, whether public executions, by the parade with which they are conducted, do not operate on the vicious part of the community more as incitements to, than examples deterring from, crime. What has taken place in Lancaster would lead one to believe, that the spectacle of a public execution produces less reformation than criminal propensity. While an old offense was atoned for, more than a dozen new ones were committed, and some of a capital grade. Twentyeight persons were committed to jail, on Friday night, for divers offenses at Lancaster, such as murder, larceny, assault and battery, etc.; besides, many gentlemen lost their pocket-books, where the pickpockets escaped, or the jail would have overflowed.
“In the evening, as one Thomas Burns, who was employed as a weaver in a factory, near Lancaster, was going home, he was met by one Wilson, with whom he had some previous misunderstanding; when Wilson drew a knise and gave him divers stabs, in sundry places, which are considered mortal. Wilson was apprehended and committed to jail, and had the same irons put on him which had scarcely been laid off long enough, by Lechler, to get cold.”
History presents to us the magic glass on which, by looking at past, we may discern future events. It is folly not to read; it is perversity not to follow its lessons. If the hemlock had not been brewed for felons in Athens, would the fatal cup have been drained by Socrates? If the people had not been familiarized to scenes of judicial homicide, would France or England have been disgraced by the useless murder of Louis or of Charles? If the punishment of death had not been sanctioned by the ordinary laws of those kingdoms, would the one have been deluged with the blood of innocence, of worth, of patriotism, and of science, in her revolution? Would the best and noblest lives of the other have been lost on the scaffold, in her civil broils? Would her lovely and calumniated queen, the virtuous Malesherbes, the learned Condorcet would religion, personified in the pious ministers of the altar, courage and honor, in the host of high-minded nobles, and science, in its worthy representative, Lavoisier -- would the daily hecatomb of loyalty and worth - would all have been immolated by the stroke of the guillotine; or Russell and Sidney, and the long succession of victims of party and tyranny, by the axe? The fires of Smithfield would not have blazed, nor, after the lapse of ages, should we yet shudder at the names of St. Bartholomew, if the ordinary ecclesiastical law had not usurped the attributes of divine vengeance, and by the sacrilegious and absurd doctrine, that offenses against the Deity were to be punished with death, given a pretext to these atrocities. Nor, in the awful and mysterious scene on Mount Calvary, would that agony have been inflicted, if by the daily sight of the cross, as an instrument of justice, the Jews had not been prepared to make it one of their sacrilegious rage. But there is no end of the examples which crowd upon the memory, to show the length to which the exercise of this power, by the law, has carried the dreadful abuse of it, under the semblance of justice. Every nation has wept over the graves of patriots, heroes, and martyrs, sacrificed by its own fury. Every age has had its annals of blood.
But not to resort to the danger of the examples in times of trouble and dissension, advert once more to that which was formerly urged, and to which I must again hereafter return — that which attends its regular practice in peace - the irremediable nature of this punishment, when error, popular prejudice, or false or mistaken testimony, has caused its infliction to be ordered upon the innocent,- a case by no means of so rare occurrence as may be imagined. It is not intended to enter into a detail of those which I have myself collected; they are not few, although they must necessarily bear a small proportion to those which were not within my reach. The author of a book of high authority, on evidence, has brought together several cases which are well authenticated. In France, in the short space of one year, I have gathered from the public papers that seven cases occurred, in which persons condemned to death by the primary courts and assizes, have been acquitted by the sentence of a superior tribunal, on a reversal of the sentence. In other States of our Union, these cases are not uncommon. With us the organizations of our courts prevent the correction of any error, either in law, or in fact, by a superior tribunal. But everywhere it is matter of surprise that any cases should be discovered of these fatal mistakes. The unfortunate subjects of them are, for the most part, friendless; generally their lives must have been vicious, or suspicion would not have fastened on them; and men of good character sometimes think it disreputable to show an interest for such men, or to examine critically into the circumstances of their case. They are deserted by their connections, if they have any,- friends they have none. They are condemned – executed — forgotten; and in a few days it would seem that the same earth which covered their bodies has buried all remembrance of them, and all doubts of their innocence or guilt. It is, then, not unreasonable to suppose, that many more such cases have existed than those that have fortuitously been brought to light. Would you retain a punishment that, in the common course of events, must be irremediably inflicted, at times, on the innocent, even if it secured the punishment of the guilty? But that is far from being the effect. While you cannot, in particular cases, avoid its falling upon innocence, that very cause, from the imperfection of all testimony, will make it more favorable to the escape of the guilty; and the maxim, so often quoted on this occasion, will no longer be perverted in order to effect a compromise between the conscience of the juror and the severity of the law, when your punishments are such only as admit of remission when they have been found to be unjustly imposed.
Other arguments, not less forcible,— other authorities, equally respectable, - might be adduced to show the ill effects of this species of punishment; but the many topics that are still before me, in this report, oblige me to pursue this one no further than to inquire, what good can be expected, or what present advantage is derived from retaining this punishment? Our legislation surrendered it without a struggle, in all cases, at first, but murder, attempt to murder, rape, and servile insurrection; and afterwards extended it to a species of aggravated burglary. Now, as these cases are those only in which it has been deemed expedient to retain this punishment, - as it has been abandoned in all others -- the serious inquiry presents itself, why it was retained in these, or why abandoned in the others? Its inefficiency, or some of the other objections to it, must have been apparent in all the other numerous offenses in which it has been dispensed with, or it would certainly have been retained, or restored, Taking this acknowledged inefficiency, in the numerous cases, for the basis of the argument, let us inquire whether there is anything which makes it peculiarly adapted to the enumerated crimes, which it is unjust or inexpedient to apply to any of the others? We have three modes of discovering the truth on this subject: by reasoning from the general effects of particular motives on human actions; by analogy, or judging from the effects in one case to the probable effects in another; or by experience of the effect on the particular case. The general reasoning upon the justice and efficacy of the punishment will not be repeated here, but it is referred to as being conclusive as to all offenses, and admitting of no exceptions that would apply to murder, or either of the three other cases in which our laws inflict it. If we reason from analogy, we should say the only argument ever used in favor of death as a punishment is, that the awful example it presents will deter from the commission of the offense; but by your abandonment of it in all cases but these, you acknowledge it has no efficacy there. Analogy, therefore, would lead us to the conclusion, that if it was useless in the many cases, it would be so in the few. But it is acknowledged that no analogy, or any other mode of reasoning,- no theory, however plausible, -- ought to influence, 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 province, 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