Year: 1869

In common With many others bova
been deeply interested in the discussion
which has been going on in the columns Of
your paper in relation to the abolition or re-
tention of the death penalty in our State It
is question of such momentous Importance
to the whole community; it strikes its roots
so deeply into the very foundations of social
order, as necessarily to command the interest
of every thoughtful mind. The community
is constantly being startled by the occurrence
of frightful and atrocious crimes, and it is
impossible for any of us to be Indifferent
when the means of security against these
dangers is being discussed Believing fully
that the gallows is an anachronism in our nine.
teenth century civilization, and that it should
as speedily as possible be got rid OF, yet do
not think the case is generally presented on
its most convincing grounds. 1t is not in be-
halt of the criminal but in behalf of society,
that l object to this species of vengeance
hold that society has a right to protect itself
even to the extent of taking human life, if
that be necessary. The advocates of the
death penalty assume that it is necessary,
and seem to think that their assertion is
equivalent to demonstration. They have
past traditions and prejudices in their favor,
but the facts of history and the principles of
philosophy are against them.


| But this is a subject which should be dis
cussed Without heat, with temperance and with
patience. know that to thegenerous ardor
of the reformer, whose larger vision compre-
hends the full bearings of the question, and
sees how by the gallows little good is done
at the expenee of almost infinite evil, there
is great temptation to lose patience with that
class of slower minds which have not vet
been able to reach his conclusions. And, on
the other hand, to the timid, the conserva-
tive, the unquestioning believers in "the di-
vine right of all which has been accustomed
to be-" there is nothing so dangerous as
change. The proposition to admit any new
principle into the government of society
seems to them fraught with dangers. They
honestly see in it an attack upon the safe
guards of society, and taking counsel rather
of their fears than of their reason,
place themselves as a solid wall of OBJ
struction in the way of the proposed reform.
AS result, the two classes. equally sincere
in their desire for the well-being of society,
become arrayed against each other and i'm
patience and contempt on the one hand, and
anger and nreasoning fear on the other
bring us to a deadlock.


The only way out of the dilemma is to con-
vince these people how utterly groundless are
their fears. To this end your paper has done
good service in presenting facts and statistics
to show that the abrogation of the death PEN
atty has in no instance been followed by an
increase of crime, but that, on the contrary,
murders are least frequent in communities
where it has been done away with. But al
low me to say that there is one point which
you seem to have left out of sight in your
treatment of this question, and in my view
it is most important one. mean the ten
dency of the death penalty to preuent the
punishment of crime, / am aware that this
is position which many persons may be in
ciined to dispute; but advance it as one i'm
pregnably supported by the facts. The exist
ence on our statute books of the penalty of
death is the greatest practical obstacle, of
statutory kind, to the protection of society
against the lawless and criminal. Every per-
son in the slightest degree familiar with the
history of criminal Jurisprudence will attest
that it is not the severity but the certainty
of any penalty which makes it effective in
deterring men from crime. Even with all the
certainty which we can secure, am inclined
to think that this deterring effect is, so far at
least as murder is concerned, much more lin
tied than is generally supposed. To commit
murder at all a man must either be so i'm
bruted and degraded as to be almost beyond
the reach of ordinary influences, or he must
be so driven by the fierce passions of anger,
ofavarice, of lust or revenge, as to be indiffer-
ent to every consideration of danger to him
SELF Still we recognize the fact that the fear
OF punishment is to some extent a restraint.
and we frame our laws accordingly. These
fail to be effective when the rogue learns that
the loopholes of escape are so many as to
make his chances of punishment small. The
advocates of capital punishment may say
"Make the death penalty sure, then, and
thereby make it effective. That is just what
we want" 1 answer that is just what can
not be done. You cannot make the death
penalty certain sohile you retain trial by ju-
ry.


There is in the breasts of all men, not ut
terly perverted by bad education or driven by
passion, an instructive and almost uncon-
querable aversion to the taking of human
life. You may call this feeling weakness if
you Will, you may reason against it and do
your best to kill it out of the heart, but it is
there, and it defies you. 1t is almost impossi-
Die to induce an ordinary jury to bring YER
oict OF guilty against any criminal the penal
ty OF whose offense is death. There are oc-
casional exceptions to this rule in the cases
where the crime of which the prisoner stands
accused has been attended by circumstances
OF peculiar atrocity, and the jury are more OF
less affected by the popular feeling Of horror
and resentment; but even in such cases there
is nothing to invalidate our position, as juries
are quite as likely to have their passions
swayed in one direction as another. But
wherever their minds are unbiased by pas
sion we find the instinct I have spoken oi
making itself felt, and leading them to resort
to almost any device to save the life of the
prisoner. Such instances as that of the Cole
Hiscock case, where twelve men of common
intelligence actually found that the prisoner
was insane at the time he committed a muir
der though he was perfectly sane five minutes
before and five minutes after the act, are asuf.
fcient illustration of the way this thing leads
1t is of no use to inveigh against this conduct
on the part of juries. Perhaps they are not
always the most Intelligent and enlightened
class of men which the community can fur
nish, but they afford very fair exponent ol
the ordinary sentiment of the community
The most violent theoretical advocate of the
death penalty, who sitting snugly in his
study writes pages of argument to prove the
dangers involved in its abrogation, if he
found himself upon jury with the life of a
fellow being in his hands, would hesitate in
J view of his dread responsibility, and be as
ready as the next man to give the prisoner
the benefit of every doubt that might
afford him loophole of escape, And so, be-
cause he is a man, he would do the very thing
, he wonders at in others, and send the scoun-
drel loose again to prey upon the society
. which might be willing to shut him up, but
: which shrinks from taking his life. Thus the