The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1869-04-09
SPIRIT or THE PRESS.
EDITORIAL OPINIONS OF THB LEADING JOURNALS
UPON CURRENT ToPICs-CoMPILED EVERY
DAY FOR THE EvENIEG TBBBGRAPH.
Rationale Of the Denal, Penalty.

Prom the NJ Y. Tribune.
Human opinion once established in the
right direction rarely goes baokwaru; pus ~
sometimes happens that, under the ptessu,e
ofoiroum stances 1t asserts itself In new , ioIno,
and while apparently submitting to absyance,
is substantially as active as ever Ihis We
believe to be especially true OF that hostlllty
60 oapital punishment which only lsW years
AGO seemed to indicate It's speedy erasure
from the catalogue of legal expiaions. But
society, being itself thoroughiy ooncrete,
seldom accepts reform which is based purely
upon abstract morality. The moral and reli-
gious argument against hanging is as perfect
as any logician could desire. 1t is merely
child's play to show that it Is condemned by
Christianity ;sand the statistics which prove
that 1t does not diminish crime bristle invulne-
rably and irrefragaby. But use wears out all
things mortal. Legislatures will no longer
Ii listen to arguments against judicial killing,
nd the opposition to it has taken new turn.
What this turn is we think is sufficiently in
dioated by the events of the last few days.
Men are constantly hung, but they are not
hung without protest. Courts of final juris-
diction are appealed to. The Executive ante
chambers are thickly haunted by clamorers
for reprieves, for communications, and for par
dons. Judges are solicited to disavow their
rulings, witnesses to qualify their testimony,
jurors to explain away their verdcts. Every
weapon which the humanity of the law puts
into the hands of the accused is freely re-
sorted to. Rulings are canvassed, indictments
are criticized, and the legal bearing of testi-
mony carefully examined. There is fire.
quent recourse to technical objections, and
even quibbles are resorted to with feeling
that the desperate Importance of the case
lends them dignity. There is an arguments-
tion after conviction which rivals that which
preceded it. And the battle for human life,
reduced though its champions may be to
hone hat haa
been extinguished. Illustrations of this fact
may be found in the cases of Twitchell in
Philadelphia and of Real in this city.
The case Of Twitohell is particularly to the
point, because the whole theory Of capital
punishment assumes that the Jury, in convict
ing, acted intelligently and without bias or
external influence. Yet here is the statement
of juror that he thought when the presiding
Judge at the trial told the jury che would
wait half an hour for the verdict" that he
meant that the jury must find verdict OF
s'guilty," and substantially directed them to
do SO Here was the life OF a man depending
upon the intelligence and good judgment Of
another man who could make blunder like
this, and who supposed that a presiding
judge had a right to direct the jury to stay
out just thirty minutes and then to bring in
verdict of "guilty ~ Such stupidity seems
Incredible; yet here is another juror who joins
in the statement that he labored under the
was originally in favor of verdict of "not
guilty." Neither of these men, to whom
duties of vital Importance had been com.
mitted, knew that the judge had no right to
direct them how long to stay out or what
verdict to render. Still another juryman is
said to have been influenced by the same
opinion. To oomplicate matters, two of the
jurymen now deny that they have ever said
what several citizens declare that they have
heard them say Here is contradiction with
out stint, and a muddle apparently without
clue and yet we talk of the infinite bless
ings OF the jury system, and of the almost
certain accuracy of verdictsl We are not
about to say word against that system, but
1t cannot be denied that 1t is constantly fur
nishipg fresh evidence of theinfrmity of human
judgment.
Here, then, we take our stand. Until it
can be shown Gas in the nature of things it
never can be) that judges are infallible in
Judgment and that jurors cannot err in their
finding, we insist that the law has no right,
according to its own theories, to 80 dispose of
any respondent as to put it out of its own
power to redress an injury or to correct a
mistake. Hanging presupposes omnipotence
and omniscience. In all other human affairs,
we trust to the disclosures Of time, and pa
tisntly or impatiently wait for the develop
ment of circumstances. In hanging, we assum
that no new evidence can be discovered, that
every witness has told the truth the whole
truth, and nothing but the truth, that
the Court has made no mistake in its law
that the jury has been entirely faithful In
the discharge of its duties, that in al
things 1t has acted intelligently, and
that legal science will never hereafter be, able
to find flaw in the indictment. We tax,
issue here. We say that precision and GER
tainty like this are impossible, and whateve
may be our judicial machinery, must alway
remain impossible. We say further that ex
perience in quite large number of cases ha
shown that even confession is not to be releC
upon as conclusive evidence OF guilt, and tha
without such evidence the law is continual,
falsifying its own dictum that it is better tina
ten guilty men should escape than that on
innocent man should suffer. Yet we begi
in doubt, go on in doubt, and end in doubt
the only certain thing being the death of ou
victim
We have but little patience with that lega
arrogance which assumes that in judicial pro
ceedings there can be no mistake. This is a
assumption, indeed, which the law itself doe
not countenance. 1t virtually admits its fall
bility by permitting appeal. The lowest coul
may be wrong; the next higher court ma
the pinnacle of the judicial structure we fin
costly seated there i've or six gentlemen VIII
cannot possibly be mistaken. With all du
reverence for these august funotionaries W
must refuse to accord to them the attribute
of the Almighty. And even these SOlons wi
have successors who will overrule their dec
sions. For all kinds of contracts for ever
question which affects material gain, for la
points which change the titles OF estates, IL
construction OF agreements, or the interpret
G0n OF deviseS, there ia cousdarata pati9n,