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the tribe, or arrested and condemned; and two were executed as for murder, and one negro was condemned and executed for insurrection. 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.
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 noonday, 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 offenses; try the great experiment on this also. Be consistent; restore capital punishment in other crimes, or abolish it in this. Do not fear that the murderers from all quarters of the earth, seduced by the mildness of your penal code, will choose this as the theatre of their exploits. On this point we have a most persuasive example. In Tuscany, as we have seen, neither murder
any other crime was punished with death, for more than twenty years, during which time we have not only the official 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 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 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 offense, 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 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. L'ntil 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 the 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 inevitable,— alone, the tenant of a dungeon during every moment that the lenity of the law prolongs 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 country, his friends, his family, are torn asunder, no 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 of making it fall upon the guilty. These things have happened. These legal murders have been committed! and who were the primary causes of the crime? Who authorized a punishment which, once inflicted, could never be remitted to the innocent? Who tied the cord, or let fall the axe upon the guiltless lead ? Not the executioner, the vile instrument who is hired to do the work of death, — not the jury who convict, or the judge who condemns,- not the law which sanctions these errors; but the legislators who made the law,those who, having the power, did not repeal it. These are the persons responsible to their country, their 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 indignity 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 dreadful adjuration, poured forth by one of these victims, with an energy and solemnity that seemed superhuman, summoning his false accuser and his mistaken judge to meet him before the throne of God. Such an appeal to the high tribunal which never errs, and before which he who made it was in a few hours to appear, was calculated to create a belief of his innocence: that belief was changed into certainty. The perjury of the witness was discovered, and he fled from the infamy that awaited him; but it was too late for any other effect, 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 punishment 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.
I cannot quit this part of the subject without submitting to the general assembly the opinion of one whose authority would justify an experiment even more hazardous than this, but whose arguments are as convincing as his name is respectable. They are not the opinions of one whom the cant, which is used to cover the ignorance of the day, would call a theorist, but a man whose whole life was spent in the useful and honorable functions of the highest magistracy, whose name is always mentioned with reverence, and whose doctrines are quoted as authority, wherever the true principles of legal knowledge are regarded. Hear the venerable D'Aguesseau :
“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.”
The earnestness for this reform is sometimes reproached to its advocates as proceeding from a childish fear, that magnifies the apprehension of that which we know is appointed to us all. Not so. The value of life is not overrated in the argument. There are occasions in which the risk of its loss must be incurred; in which the certainty of death must be encountered with firmness and composure. These occasions are presented by patriotism, in defense of our country and our country's rights,— by benevolence, in the rescue of another from danger,- by religion, whenever persecution offers the 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 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