To render a certain part of this letter intelligible to the reader, it is
proper to state, that Clarissa and Rufus, as it appeared from the
evidence, were the names of Colvin's children; and that "_the judge_" was
a title, or sobriquet, frequently bestowed upon Jesse, by Stephen.
Upon the arrival of a printed copy of Mr. Chadwick's letter, in
Manchester, it produced little or no effect. Very few of the inhabitants
gave any credit to the story; and it might have been very reasonably
supposed, that St. Thomas had begotten a large majority of the population.
Squire Raymond was certain of Stephen's guilt; and to differ from Squire
Raymond, was probably accounted, by the villagers, as one of the
presumptuous sins. Besides, if a doubt of their guilt had existed, would
not those most learned judges have given the prisoners the full advantage
of that doubt! How little the good people of Manchester imagined, that,
upon the trial of the Boorns, the well established rules of evidence had
been outrageously violated, and a great fundamental principle of criminal
jurisprudence shamefully disregarded, by the court! Such, however painful
and disgraceful the admission, was manifestly the fact. Judges, who sit
thus, in judgment, upon the lives of men, would do well to doff their
ermine, and assume the robe, commended by Faulconbridge to Austria. To the
enforcement of this simple truth I shall turn hereafter.
Let us now go to the dungeon, taking with us, of course, the newspaper,
containing these living lines--these tidings of exceeding great joy. But
the details of all that occurred within the prison, are related with great
simplicity and power, by the good clergyman, who stood by Stephen Boorn,
in his deepest need. Let Mr. Haynes, himself, describe in a few words, the
effect of this communication, upon the prisoner--"Mr. Chadwick's letter
was carried to the prison, and read to Stephen. The news was so
overwhelming, that, to use his own language, nature could scarcely sustain
the shock; but, as there was some doubt as to the truth of the report, it
tended to prevent an immediate dissolution. He observed to me, that, if
Colvin had then made his appearance before him, he believed it would have
caused immediate death. Even now a faintness was created, that was painful
to endure."
Not a few very charitable people, who shrink, instinctively, from the very
thought of giving pain, marvelled at the cruelty of those, who presumed to
raise the poor prisoner's hopes, upon such frail and improbable grounds.
Soon, intelligence arrived in Manchester, that a Mr. Whelpley, of New
York, formerly of Manchester, who knew Colvin well, having seen Mr.
Chadwick's letter, had gone to New Jersey, to settle the question of
identity. This, according to Mr. Deming's account, was done, at the
instance of the city authorities of New York.
Doubt fell, fifty per cent., in the market of Manchester, when a brief
letter, in the well known handwriting of Mr. Whelpley, was received, in
that village, immediately upon his return to New York, containing these
vital words--"I HAVE COLVIN WITH ME!" This letter was immediately followed
by another from a Mr. Rempton, who knew him well, in which he
says--"_while writing, Russell Colvin is before me_!" The New York
journals now published the notice, that _Colvin had arrived, and would
soon proceed to Vermont_. Doubt dies hard, in the bosoms of those, whose
pride of opinion forbids them to recant. Squire Raymond, and his tail, as
the Scotch call a great man's followers, could not believe the story.
Their honors, who sentenced the Boorns to death, in one hour, after the
verdict had been delivered--were very naturally inclined to take a longer
time, for consideration, before they sentenced themselves to merited
reproach, for their rash and unjustifiable conduct. Bets were made, says
Mr. Haynes, that the man, on his way to Vermont, notwithstanding the
positive averments of Whelpley and Rempton, was not the true Colvin, but
an impostor.
Whoever he was, he was soon upon his way. He passed through Albany. The
streets, says Mr. Deming, were literally crowded to get a glimpse of the
man, who was dead and alive again. He passed through Troy. The Trojan
horse could not have produced a greater measure of amazement, in the days
of Priam. Dec. 22, he arrived with Mr. Whelpley, at Bennington. The court
then in session, suspended business, to look upon him, for several hours.
Towards evening, upon that memorable day, Dec. 22, 1819, the stage was
seen, driving into Manchester, and the driving was like the driving of
Jehu, for it drove furiously. When the dust cleared away, sufficiently, to
enable the excited population to obtain a clearer view, an unusual signal
was observed floating above the advancing vehicle. A shout broke forth
from the crowd--COLVIN HAS COME! Hundreds ran to their houses to
communicate the tidings--_Colvin has come!_ The stage drove up to the
tavern door; and a little man, of mean appearance, and wild, disordered
look, came forth into the middle of the eager multitude. His bewildered
eyes turned, rapidly and feverishly, in all directions, encountering eyes
innumerable, that seemed to drink him in, with the strong relish of wonder
and delight. Hundreds upon hundreds pressed forward, to grasp this poor,
little, demented creature, by the hand; and enough of sense and memory
remained, to enable him, feebly, to return the smiles of his former
neighbors, and to call them, by their names. All was uproar and frantic
joy. The people of Manchester believed it to be their bounden duty to go
partially mad; and they did their duty to perfection. Guns were fired,
amid wild demonstrations of excitement; and Colvin was tumultuously borne
to the cell of the condemned. The meeting shall be described by Mr.
Haynes--"_The prison door was unbolted--the news proclaimed to Stephen,
that Colvin had come! The welcome reception, given it by the joyful
prisoner, need not be mentioned. The chains, on his arms, were taken off,
while those on his legs remained. Being impatient of an interview with
him, who had come to bring salvation, they met. Colvin gazed upon the
chains, and asked--'What is that for?'--Stephen answered--'Because, they
say, I murdered you'--'You never hurt me'--replied Colvin._"
Colvin recognized his children; but marvelled how they came in Manchester,
asserting, that he left them, at the house of his kind benefactor, Mr.
Polhamus, in New Jersey. Of his wife, who came to see him, he took little
notice, asserting, that she did not belong to him. There may have been
enough of method, in his madness, to enable him to appreciate, correctly,
the value of his marital relation. The breath of Manchester may have blown
the truth into his ear. An ingenious person may find some little
resemblance between the wanderings of Ulysses and those of Colvin the
_Oudeis_ of Manchester--but the testimony, upon the trial, peremptorily
forbids the slightest comparison, between Penelope and Mrs. Colvin, who
appears not to have embarrassed her suitors, with the preliminary ordeal
of the bow.
There is an admirable painting, in the Boston Athenaeum, by Neagle, of
Patrick Lyon, the blacksmith, who was long imprisoned, in Philadelphia,
for the robbery of a bank, of which crime he was perfectly innocent, as it
finally appeared, to the entire satisfaction of the government, by whom he
was, consequently, discharged. Lyon is represented, at his forge; and he
desired the artist to introduce the Walnut Street prison in the rear,
where he had suffered, so unjustly, and so long.
The graphic hand of a master might do something here. I would pay more
than I can well afford, for a couple of illustrative paintings--I. The
Judges, with tears in their eyes, sentencing Stephen and Jesse to be
hanged, for the murder of Colvin--the best books on evidence, before them,
and open at the pages where it is expressly stated that extra-judicial
confession, under fear of death, and hope of pardon, shall never be
received--and the leaf turned down, at the authority of Sir Matthew Hale,
that no conviction ought ever to take place, upon trials for murder and
manslaughter, till the fact be clearly proven, or the _dead body_ be
discovered.
II. The dungeon, Dec. 22, 1819, just thirty-six days, before the time,
appointed for the execution of Stephen--the murderer and the murdered man,
standing face to face, in full life--Squire Raymond still avowing his
conviction of Stephen's guilt, and holding aloft his written
confession--Judge Chace seen in the distance, burying the "_certified
minutes of evidence_" in the very hole, pointed out, to Nathaniel Boorn,
by Colvin's ghost--and Judge Doolittle evidently regretting, that he had
not done less, in this unhappy transaction, which came so near the
consummation of judicial murder.
In the succeeding number, I shall endeavor to present a simple version of
the motives and conduct of the parties--and some brief remarks, upon this
extraordinary trial.
No. LXXXIV.
After a little reflection, the true explanation of this apparent mystery
appears to be exceedingly simple. Colvin had become an object of contempt
and hatred to the Boorns; and especially to Stephen. His mental feebleness
had produced their contempt--the burdensomeness of himself and his family
had begotten their hatred. The poor, semi-demented creature happened, in a
luckless hour, to boast, most absurdly, no doubt, of his great importance
and usefulness, as a member of this interesting family. This gave a doubly
keen edge to the animosity of Stephen; and he berated his brother-in-law,
in terms, almost as vulgar and abusive, as those we daily meet with, in so
many of our leading political journals, of all denominations.
Forgetful of his inferiority, this miserable worm exemplified the proverb,
and turned upon his oppressor, in a feeble way. He struck Stephen with "_a
small riding stick_." This was accounted sufficient provocation by
Stephen; and, in the language of the witness, "_Stephen then struck
Russell on his neck with a club, and knocked him down_." He rose, and made
a slight effort to renew the battle, and then Stephen again knocked him
down. Upon this, Colvin rambled off, towards the mountain, and was seen in
that region, no more, till he was brought back, after the expiration of
seven years, in December, 1819.
He went off without his hat and shoes; whether, in his effort to shake off
the dust of that city, he unconsciously shook off his shoes, is unknown.
The discovery of the hat, some years after, formed a part of that wretched
_rope of sand_, for it is not worthy of being called a _chain of
evidence_, upon which Stephen and Jesse were sentenced to death. Colvin
had, doubtless, long been aware, that he was an object of hatred to the
Boorns. The blows, inflicted upon this occasion, undoubtedly, aggravated
his insanity; yet enough remained of the instinctive love of life, to
teach him, that his safety was in flight. How he found his way to that
part of New Jersey, which lies near the Atlantic Ocean, is of little
importance. He was, notoriously, a wanderer. It was the spring of the
year. He moved onward, without plan, camping out, among the bushes, or
sleeping in barns; the world before him, and Providence his guide. He,
probably, rambled from Manchester, which is in the southwest corner of
Vermont, into the State of New York, which lies very near; and, wandering,
in a southerly direction, along the westerly boundary lines of
Massachusetts and Connecticut, he would, before many days, have entered
the northerly part of New Jersey.
Accustomed to his occasional absences, the Boorns, undoubtedly, expected
his return, for weeks and months, even though the summer had past, and the
harvest had ended. But, after the snows of winter had come, and covered
the mountains; and the spring had returned, and melted them away; and
Colvin came not; then Stephen Boorn, doubtless, began to fear, that he
had, unintentionally, killed him--that he had wandered away, and died of
the effects of the blows he had received--and that his bones were
bleaching, in some unknown part of the mountain, whither he had wandered,
immediately after the occurrence.
Upon this hypothesis, alone, can we explain one remarkable word, in the
answer of Stephen to Merrill's question, in the jail, as certified, by
Judge Chace, in his minutes--"_I asked him, if he did take the life of
Colvin.--He said he did not take the_ main _life of Colvin. He said no
more at that time._"
Does any reflecting man inquire--what could have induced these men to
confess the crime, with such a particular detail of minute, and
extraordinary, circumstances? The answer has already been given, in
part.--Stephen, doubtless, believed it to be quite probable, that he had
been the means of Colvin's death. To explain the motive for confession,
more fully, it is only necessary to stand, for one moment, in the
prisoner's shoes. He was assured, by "Squire Raymond," and others, in whom
he confided, that no doubt was entertained of his guilt--that his case was
dark--and that his only hope lay in confession.
His mind was brought to the full and settled belief, that he should be
hung, before many days, _unless he confessed_. If he had confessed the
simple truth--the quarrel--the blows--the departure of Colvin--all this
would have availed him nothing. It was not this, of which "Squire
Raymond," and others, had _no doubt he was guilty_. They had no doubt he
was guilty of the _murder_ of Colvin. No confession of anything, short of
_the murder of Colvin_, would satisfy "Squire Raymond," and induce him to
"petition the legislature in favor" of the prisoner! Stephen well knew,
that, if he confessed the murder of Colvin, it would be immediately
asked--where he had buried the body--a puzzling question, it must be
confessed, for one, who had committed no murder. But it was a delicate
moment, for Stephen. It was necessary for him to stand, not only _rectus
in curia_--but _rectus_ with "Squire Raymond," and all his other attentive
patrons. He therefore, to save his life, and secure the patronage of the
"Squire," strung together a terrible tissue of lies, too manifestly
preposterous and improbable, even for the credulous brain of Cotton
Mather, in 1692. He relieved himself of all embarrassment, in regard to
the dead body of the _living_ Colvin, by _confessing_, that he first
buried it, in the earth--then took it up and reburied it, under a
barn--and, after the barn had been burnt, took up the bones again, and
cast them into the Battenkill river.
The confession of Jesse was made, when he was aroused from sleep, at
midnight, under the impression, as he stated, at the time, that
"_something had come in at the window, and was on the bed beside
him_"--somewhat extra-judicial, this confession, to be sure. This Jesse
appears to have been a most unfilial scoundrel; for, instead of
_confessing_, as Stephen had _confessed_, that Stephen himself killed
Colvin, single-handed and alone; Jesse catered, more abundantly, to the
popular appetite for horrors, by _confessing_ that his old father, Barney
Boorn, "_damned_" his son-in-law, Colvin, very frequently, and "_cut his
throat with a small penknife_." All this clotted mass of inconsistent
absurdity, extorted by hope and fear, his honor, Judge Chace, received, as
legal evidence, and gravely certified up to the General Assembly of
Vermont.
It is true, Judge Chace, as we have stated, rejected the written
confession of Stephen, because Raymond swore, as follows--"_I have heard
Mr. Pratt and Mr. Sheldon tell Jesse Boorn, that if he would confess, in
case he was guilty, they would petition the legislature for him--I have
made the same proposition to Stephen myself, and always told him I had no
doubt of his guilt, and that the public mind was against him._" It is
needless to expatiate on the gross impropriety of addressing such language
to a prisoner, under such circumstances.
But the witness, Farnsworth, was then produced to prove Stephen's oral
confession, that he killed Colvin. It appears, by the minutes, certified
by Judge Chace, that he put the preliminary questions, and that the
witness swore, "that neither he nor anybody else, _to his knowledge_, had
done anything, directly or indirectly, to influence the said Stephen to
the _talk_ he was about to communicate." In vain, the prisoners' counsel
protested, that the evidence was inadmissible, because the "_talk_"
between Stephen and Farnsworth was subsequent to the proposition made to
Stephen by Raymond. In vain they pressed the consideration, that if, on
this ground, the written confession had been rejected, the oral confession
should also be rejected. In vain they offered to prove other proposals and
promises, made to the prisoners, at other times, _before_ the
conversation, now offered to be proved. Nothing, however, would stay their
honors, from gibbetting their judicial reputation, in chains, which no
time will ever knock off. They suffered Farnsworth to testify; and he
swore, that Stephen told him, "about two weeks _after_ the written
confession, that he killed Colvin," &c. This must have been about
September 10, 1819, and, of course, before the trial, when he was still
relying on the promises of Squire Raymond, and others.
The prisoners' counsel very judiciously moved, for the reception of the
written confession, and it was read accordingly. Unable to restrain the
judicial antics of the Court, it appeared to be the only course, for the
prisoners' counsel, to throw the whole crude and incongruous mass before
the jury, and leave its credibility, or rather, its palpable
incredibility, to their decision. It would be desirable, as a judicial
curiosity, to possess a copy of Judge Chace's charge. Of his instructions
to the jury he says nothing, in his certified statement to the General
Assembly.
Now, apart from the confessions of these men, extorted, so clearly, by the
fear of death, and the hope of pardon, there was evidence enough to excite
_suspicion_, and there was no more: but, the law of our country convicts
no man of murder, or manslaughter, upon _suspicion_. I shall conclude my
remarks, upon this interesting case, in the following number.
No. LXXXV.
The chains of Stephen Boorn were stricken off, and Jesse was liberated
from prison. They were men of note. If there were not _giants_, there were
_lions_, in those days. Colvin soon became weary of standing upon that
dizzy eminence, where circumstances had placed him. He had a painful
recollection, no doubt, more or less distinct, of the past: and, after he
had served the high purpose, for which he had been brought from New
Jersey, he expressed an earnest wish to return to the home of his
adoption; where he had found, in the good Mr. Polhamus, a friend, who had
considered the necessities and distresses of his body and mind; and, who
had been willing, in return for his feeble services, to give him shelter
and protection.
The Boorns had, undoubtedly, a fortunate, and, almost a miraculous,
escape. So had their honors, the Judges, Chace and Doolittle. Their first
meeting, after the _denouement_, must have been perfectly tragi-comical.
Their escape from an awful precipice may admonish all, who sit, in
judgment, upon the lives of their fellow-men, to administer the law, with
extreme caution, and with a high and holy regard, for those
well-established principles, and rules, which can never be disregarded,
with impunity. God forbid, that any humble phraseology of mine should, for
an instant, be perverted, to mislead the meanest understanding--to foster
those principles, which, for the purpose of extending mercy, undeserved,
to the murderer, would heap gross injustice and cruelty, upon the whole
community--to break down the positive law of God, which Jesus Christ
declared, that he came to confirm; and, in its place and stead, to erect
the sickly decrees of a society of philandering puppets, whose wires are
notoriously pulled, by certain professional and political managers.
In the commencement of my remarks, upon this romance of real life, I
endeavored to forefend, against the suspicion of undervaluing that species
of evidence, which is called presumptive, or circumstantial. It is
accounted, by the most able writers, on this branch of jurisprudence, of
the highest quality. Thus, in his admirable work, on Evidence, vol. i.
sec. 13, Professor Greenleaf remarks, that, in both civil and criminal
cases, "_a verdict may well be founded on circumstances alone; and these
often lead to a conclusion, far more satisfactory than direct evidence can
produce_."
The errors, committed by the Judges, upon the trial of the Boorns--and
those errors were egregious--were twofold--the admission of extra-judicial
confessions, manifestly extorted by hope and fear--and suffering a
conviction to take place, before the dead body of the person, alleged to
have been murdered, had been discovered.
The rule, on the subject of confessions, is sufficiently plain.
"_Deliberate confessions of guilt_," says Mr. Greenleaf, ibid. sec. 215,
"are among the most effectual proofs in the law." But they should be
received and weighed with caution; for, as he remarks, sec. 214--"it
should be recollected, that the mind of the prisoner himself, is oppressed
by the calamity of his situation, and that he is often influenced by
motives of hope or fear, to make an untrue confession." Mr. Greenleaf then
proceeds to say, in a note on this passage--"of this character was the
remarkable case of the two Boorns," &c., and proceeds to give a summary of
the case.
"In the United States," says Mr. Greenleaf, ibid. sec. 217, "the
prisoner's confession, when the _corpus delicti_ is not otherwise proved,
has been held insufficient, for his conviction; and this opinion,
certainly, best accords with the humanity of the criminal code, and with
the great degree of caution, applied in receiving and weighing the
evidence of confessions, in other cases; and it seems countenanced by
approved writers, on this branch of the law."
Again, ibid. sec. 219, he remarks--"Before any confession can be received,
in evidence, in a criminal case, it must be shown, that it was
_voluntary_. * * * * 'A free and voluntary confession,' said Eyre, C. B.,
'is deserving of the highest credit, because it is presumed to flow from
the strongest sense of guilt, and therefore it is admitted as proof of the
crime, to which it refers; but a confession forced from the mind, by the
flattery of hope, or by the torture of fear, comes in so questionable a
shape, when it is to be considered as the evidence of guilt, that no
credit ought to be given to it; and therefore it is rejected.'"
Unfortunately, Judges Chace and Doolittle thought otherwise; and brought
themselves and the condemned, upon the very threshold of a terrible
catastrophe.
Mr. Greenleaf, in the note, above referred to, alludes to an article, in
the North American Review, vol. 10, p. 418, in which this case of the
Boorns is examined. It was from the pen of a gentleman, whose high
professional prospects were blasted, by an early death. This writer had
seen nothing, however, but "_a very imperfect report of the trial_." His
article was published, in April, 1820, about four months after the
discovery of Colvin. The conclusions, at which he arrives, that the
confessions ought not to have been admitted, would have gained additional
strength, had he inspected the _certified minutes_, taken on the trial, by
the Chief Justice.
Had he seen those certified minutes of the evidence, he would scarcely
have described the utter inconsistency of the two confessions, by the
inadequate phrase--"_there are differences between them_:" for Stephen's
claims the whole act of killing to himself--while Jesse's charges the
father, who was notoriously not present, with cutting Colvin's throat,
while he was yet living, and after Stephen had given him a blow.
This writer relies strongly, upon the humane caution of Sir Matthew Hale,
to which I have alluded, that no conviction in case of murder or
manslaughter should ever take place, till the fact were proved--or the
dead body had been discovered.
A perfect horror of induction seems to have settled down, like a dense
cloud, upon the southwestern corner of Vermont. Judges and jurymen appear
to have been stupefied, by its power. The important _consequence_, vital
to the whole, they assumed to be true, without trial or experiment. I have
looked, attentively, into every document, that I could lay my hands upon,
connected with this subject; and I cannot discover, that any effort
whatever was made, by any one, _till after the trial_, to discover the
_living_ body of Colvin. The interesting ramble of Jesse and Judge
Skinner, upon the mountain, was in search of Colvin's _dead_ body! But,
upon the publication of the notice, in the Rutland Herald, Nov. 26, 1819,
stating the facts, and calling for information, in regard to Colvin, and a
similar notice, of the same date, in the New York Evening Post--in ten
days, that is, Dec. 6, the most ample and satisfactory information was
published, by Mr. Taber Chadwick, in regard to the _living_ body of
Russell Colvin!
The great caution of Sir Matthew Hale was meant, not less for the
prisoner, than for the whole community; no one of whom can be sure,
through a long life, of escaping from the oppressive influence of
circumstances, accidentally, or purposely, combined against him. His
_discreet_ humanity spread no mantle of imitation charity or morbid
philanthropy over the guilty. He was a bold practitioner--too bold, by
far, occasionally, as in the case of Cullender and Duny. But this great,
good man, well knew, that prisoners, charged with murder, were entitled to
all the benefit of _reasonable_ doubt. He well knew, that no judicial
caution could go farther, to save, than the fierce suspicion of an excited
community would go, to destroy. He well knew, that, with not a small
number, the very enormity of the crime seems to supply the want of legal
evidence; and, that, in many cases, to be suspected is to be condemned. We
have all heard of the jury, who, having convicted a prisoner of murder,
in direct opposition to the Judge's instructions, and being questioned and
reproved--replied, that an enormous crime had been committed, and ought to
be atoned for; and they saw no good reason, why the prisoner, the only
person _suspected_, should not be selected, as the victim!
Sir Matthew Hale's forbearance extended to cases of reprieve, after
conviction, before another judge. Thus in H. P. C., vol. ii. ch. lvi., he
says--"I have generally observed this rule, that I would never give
judgment, or award execution, upon a person, reprieved by any other judge
but myself, because I could not know, upon what ground or reason he
reprieved him."
Upon this, there is the following pertinent note--"The usefulness of this
caution may be seen, from what is observed, by Sir John Hawles, in his
remarks on Cornish's trial, where he relates the case of some persons, who
had been convicted of the murder of a person absent, barely by inferences
from foolish words and actions; but the judge, before whom it was tried,
was so unsatisfied in the matter, because the body of the person, supposed
to be murdered, was not to be found, that he reprieved the persons
condemned; yet, in a circuit afterwards, a certain unwary judge, without
inquiring into the reasons of the reprieve, ordered execution, and the
persons to be hanged in chains, which was done accordingly; and
afterwards, to his reproach, the person, supposed to be murdered, appeared
alive."
The death of the person, alleged to have been murdered, is, manifestly,
not less a constituent part of the crime, than the malice prepense, or the
employment of the means. These three things are necessary to constitute
murder, in the eye of the law. Thus, an acquittal has taken place, where
the _murder_ was alleged to have been committed, _on the high seas_; and
the _malice_ and the _blow_ only were proved to have occurred _on the high
seas_--and the _death_, in the harbor of Cape Francois. Such was the case
of the U. S. against McGill, reported in Dallas. This extreme
particularity appears, to some persons, exceedingly ridiculous; but not
quite as much so, as certain commentaries, upon legal proceedings which we
sometimes meet with, in the ordinary journals of the day.
Aaron Burr, whom I desire not to quote, too frequently, once shrewdly
remarked--"_he, who despises forms, knows not what he despises_." To infer
the death, from the malice, and the employment of the means, in all
cases, would be absurd. If one man maliciously knocks another into the
sea, here is, certainly, a violent assault and battery--perhaps an assault
with intent to kill. But, before we join, in the popular _hutesium et
clamor_, we have two important points to settle, beyond all _reasonable_
doubt--first, if the person, knocked overboard, be dead, for he may have
swum to land, or have been picked up, at sea, alive, in which case, unless
he die of the blow, within the time prescribed, there can be neither
murder nor manslaughter. And, secondly, if he be proved to have died of
the injury within that time, we must duly weigh the previous circumstances
and the provocation, to ascertain, if the act done be manslaughter or
murder.
Those, who vociferate, most loudly, against the law, for its hesitancy,
and demand the immediate descent of the executioner's axe, upon the neck
of the victim, will be the very first fervently to supplicate, for the
law's most merciful carefulness of life, should a father, a brother, or a
son be charged with crime, and involved in the complicated meshes of
presumptive evidence.
No. LXXXVI.
The transition state, when the confidence of youth begins to give place to
that wholesome distrust, which is the usual--by no means, the
invariable--accompaniment of riper years, is often a state of disquietude
and pain. It is no light matter to look upon the visions of our own
superiority, and imaginary importance, as they break, like bubbles, one
after another, and leave us abundantly convinced, that we are of
yesterday, and know nothing.
The confidence of ignorance, however venial in youth, is not altogether so
excusable, in full grown men. Its exhibitions, however ridiculous and
absurd, are daily manifested, by mankind, in relation to those arts and
sciences, which have little or nothing in common with their own respective
vocations. The physician, the lawyer, the clergyman, the deeper they
descend into their respective, professional wells, where truth is
proverbially said to abide, proceed with increasing caution. Yet it is
quite amazing, to witness the boldness, with which they dive into the very
depths, that lie entirely beyond their professional precincts. The
physician, who proceeds, in the cure of bodies, with the extremest
caution, seems to be quite at home, in the cure of souls; and has very
little doubt or difficulty, upon points, which have perplexed the brains
of Hale and Mansfield. The lawyer, who, in his own department, moves
warily; weighs evidence with infinite care; and consults authorities, with
great deliberation--looks upon physic and theology, as rather speculative
matters, and of easy acquirement. The clergyman frequently practises
physic gratuitously; and holding the doctrine in perfect contempt, that
the _viginti studia annorum_ are necessary to make a tolerable lawyer,
he rather opines, that, as _majus implicat minus_, so his knowledge of the
Divine law necessarily comprehends a perfect knowledge of mere human
jurisprudence.
This confidence of ignorance is nowhere more perfectly, or more briefly,
expressed, than in four oft-repeated lines, in Pope's Essay on Criticism:
"A _little_ learning is a dangerous thing;
Drink deep, or taste not the Pierian spring:
These shallow draughts intoxicate the brain,
And drinking largely sobers us again."
The editors of public journals are, in many instances, men of education
and highly respectable abilities--men of taste and learning--men of
integrity, and refinement, cherishing a just regard for the rights of
individuals, and of the community. There is a very different class of men,
who, however incompetent to improve the minds or the manners of the
public, have a small smattering of knowledge; hold a reckless, rapid pen;
and, by the aid of the scavengers, whom they employ, to rake the gutters
for slander and obscenity, cater, daily, to the foulest appetites of
mankind. There are some, who descend not thus, to the very nadir of all
filth and corruption, but whose columns, nevertheless, are ever open, like
the mouths of so many _cloacae_, for the filthy contributions of every
dirty depositor; and who are ever on hand, like the Scotch cloak-man, in
_Auld Reekie_, to serve the occasions of a customer.
The very phraseology of the craft has a tendency to the amplification of
an editor; and to give confirmation to the confidence of ignorance. The
broken merchant, the ambitious weaver, the briefless lawyer, the literary
tailor are speedily sunk, in "_we_," and "_our sheet_," and "_our
columns_," and "_our-self_."
This confidence of ignorance has rarely been manifested, more extensively,
upon any occasion, than in connection with the indictment, trial, and
condemnation of Dr. Webster, for the murder of Dr. George Parkman.
The indictment was no sooner published, than three _religious_ journals
began to criticise this _legal_ instrument, which had been carefully, and,
as the decision of the learned Chief Justice and of the Court has decided,
sufficiently, prepared, by the Attorney General of the Commonwealth. This
indictment contained several counts, a thing by no means unusual, the
object of which is well understood, by professional men. "If the crime was
committed with a knife, or with the fists, how could it be committed with
a hammer?" It would not be an easy task to convince these worthy ministers
of the Gospel, how exceedingly ridiculous such commentaries appear, to men
of any legal knowledge.
Judge, Jurymen, and Counsellors are severely censured, for the parts they
have borne, in the trial and condemnation of Dr. Webster. By whom? By the
editors of certain far-away journals, upon the evidence, _as it has
reached them_. The evidence has been very variously reported. A portion of
the evidence, however deeply graven upon the hearts, and minds, and
memories of the highly respectable jury, and of the court, and of the
multitude, present at the trial, is, from its peculiar nature, not
transferable. I refer to the appearance, the air, the manner, the voice of
the prisoner, especially, when, in opposition to the advice of his
counsel, he fatally opened his mouth, and said precisely nothing, that
betokened innocence.
I do not believe there was ever, in the United States, a more impartial
trial, more quietly conducted, than this trial of Dr. Webster. Party
feeling has had no lot, nor share, in this matter. The whole dealing has
been calmly and confidingly surrendered to the laws of the land. With
scarcely an exception, from the moment of arrest to the hour of trial, the
public journals, in this vicinity, have borne themselves, with great
forbearance to the prisoner. The family connexions of Dr. Parkman have
held themselves scrupulously aloof, unless summoned to bear witness to
facts, within their knowledge.
It has been asserted, in one or more journals, that even the body of Dr.
Parkman has not been discovered. The reply is short, and germain--the
coroner's jury, twenty-four grand jurors, and twelve jurors in the Supreme
Judicial Court have decided, that the mutilated remains were those of the
late George Parkman; and that John White Webster was his murderer; and the
Court has gravely pronounced the opinion, that the verdict is a righteous
verdict, and in accordance with the law and the evidence. This opinion
appears to meet with a very general, affirmative response, in this
quarter. The jury--and the members of that panel, one and all, after
twelve days' concentration of thought, upon this solemn question of life
and death, appear to have been conscientious men--the jury have not
recommended the prisoner, as a person entitled to mercy.
In view of all this, the editor of a distant, public journal may be
supposed to entertain a pretty good opinion of his qualifications, who
ventures to pronounce his ex-cathedral decree, either that Dr. Webster is
innocent, or, if guilty, that, on technical grounds, he has been illegally
convicted. There is something absolutely melancholy in the contemplation
of such presumption as this. But, under all the circumstances of this
heart-sickening occurrence, it is impossible to behold, without a smile,
the extraordinary efforts of some exceedingly benevolent people, in the
city of New York, who are circulating a petition to the Governor of
Massachusetts, not merely for a commutation of punishment, but for a
pardon. This, to speak of it forbearingly, may be safely catalogued among
the works of supererogation.
If the Governor of Massachusetts needs any guidance from man, upon the
present occasion, his Council is at hand. The highest judicial tribunal of
the Commonwealth, entirely approving the verdict of an impartial and
intelligent jury, has sentenced Dr. Webster to be hung, for a murder, as
foul and atrocious, as was ever perpetrated, within the borders of New
England. Talents, education, rank aggravate the criminality of the guilty
party. "To kill a man, upon sudden and violent resentment, is less penal
than upon cool deliberate malice."
If there be any substantial reasons, for pardon or commutation of
punishment--any new matter, which has not been exhibited, before the court
and jury--those reasons will be duly weighed--that matter will be gravely
considered, by the Governor and Council. But, if the objections to the
execution of the sentence, upon the present occasion, rest upon any
imaginary misdirection, on the part of the Court, or any misunderstanding,
on the part of the jury, those objections must be unavailing. After a
careful comparison of the evidence, in the case of Dr. Webster, with the
evidence, in the case of Jason Fairbanks, who was executed, for the murder
of Betsy Fales, the _concatena_--the chain of circumstances--seems even
less perfect in the latter case. Yet, after sentence, in that memorable
trial, Chief Justice Dana, who sat in judgment, upon that occasion, was
reported to have said, that he believed Fairbanks to be the murderer, more
firmly, upon the evidence before the court, than he should have believed
the very same thing, upon the evidence of his own eyesight, in a cloudy
day--the first could not have deceived him--the latter might.
If an application, for pardon or commutation, be grounded, on the
objection to all capital punishment, that objection has been too recently
disposed of, in the case of Washington Goode. The majesty of the law, the
peace of society, the decree of Almighty God call for impartial
justice--WHOSO SHEDDETH MAN'S BLOOD BY MAN SHALL HIS BLOOD BE SHED!
With the eye of mercy turned upon all--aye upon all--who have any relation
to the murderer, the better course is Christian submission to the decrees
of God and man. What may be the value of a few more years of misery and
contempt! God's high decree, that the murderer shall die, is merciful and
just. His judgment upon Cain was far more severe--not that he should
die--but _that he should live_!--that he should walk the earth, and wear
the brand of terrible distinction forever--"_And now thou art cursed from
the earth, which hath opened her mouth to receive thy brother's blood from
thy hand. When thou tillest the ground, it shall not henceforth yield unto
thee her strength; a fugitive and a vagabond shalt thou be upon the earth.
And Cain said unto the Lord, my punishment is greater than I can bear.
Behold thou hast driven me out, this day, from the face of the earth; and
from thy face shall I be hid; and I shall be a fugitive and a vagabond in
the earth; and it shall come to pass, that every one that findeth me shall
slay me. And the Lord said unto him, therefore whosoever slayeth Cain,
vengeance shall be taken on him seven fold. And the Lord set a mark upon
Cain, lest any one finding him should slay him._"
No. LXXXVII.
It may be said of a proud, poor man--especially, if he be a fearless,
godless man, as Dirk Hatteraick said of himself, to Glossin--that he is
"_dangerous_." It is quite probable, there are men, even in our own
limited community, of an hundred and thirty thousand souls, who would
rather die an easy death, than signify abroad their inability to maintain,
any longer, their expensive relations to the fashionable world.
What will not such a man occasionally do, rather than submit gracefully,
under such a trial, to the will of God? He will beg, and he will
borrow--he will lie, and he will steal. Is there a crime, in the
decalogue, or out of it, which he will not, occasionally, perpetrate, if
its consummation be likely to save him from a confession of his poverty,
and from ceasing to fill his accustomed niche, in the _beau monde_? Not
one--_no, not one_!
Well may we, who profess to be Republicans, adopt the wisdom and the words
of Montesquieu--"_The less luxury there is in a Republic, the more it is
perfect. * * * * Republics end with luxury._"
A significant illustration of these remarks will readily occur, to every
reader of American History, in the conduct and character of Benedict
Arnold. Among the dead, who, with their own hands, have prepared
themselves graves of infamy, there are men of elevated rank, who have made
shipwreck of the fairest hopes, in a similar manner. But, far in advance
of them all, Arnold is entitled to a terrible preeminence.
The last turn of the screw crushes the victim--it is the last feather, say
the Bedouins, that breaks the camel's back--and the train, which has been
in gradual preparation for many years, may be exploded, in an instant, by
a very little spark, at last.
There are periods, in the lives of certain individuals, when, upon the
approach of minor troubles--baleful stars, doubtless, but of the third or
fourth magnitude--it may be said, as Rochefoucault said of the calamities
of our friends, that there is something in them, not particularly
disagreeable to us. A man, whose afflictions, especially when
self-induced, are chafing, at every turn, against his already lacerated
pride, and who is seeking some apology, for deeds of desperation, often
discovers, with a morbid satisfaction, in some petty offence, or
imaginary wrong, ample excuse, for deeds, absolutely damnable.
Such were the influences, at work, in the case of Benedict Arnold. In
1780, in obedience to the sentence of a court martial, he was reprimanded
by the Commander-in-Chief; but in terms so highly complimentary, that it
is impossible to read them, without a doubt, whether this official
reprimand were a crown of thorns, or a crown of glory. At that very time,
Arnold's pecuniary embarrassments were overwhelming. Without the rightful
means of supporting a one-horse chaise, he rattled up and down, in the
city of Philadelphia, in a chariot and four. The splendid mansion, which
he occupied, had, in former times, been the residence of the Penns. Here
he gave a sumptuous repast to the French ambassador, and entertained the
minister and his suite, for several days.
Hunger, it is said, will break through stone walls; even this is a feeble
illustration of that force and energy, which characterized Arnold's
_passion_ for parade. To support his career of unparalleled extravagance
and folly, he resorted to stratagems, which would have been contemptible,
in a broker of the lowest grade--petty traffic and huckstering
speculation--the sale of permits, to do certain things, absolutely
forbidden--such were among the last, miserable shifts of this "brave,
wicked" man, when his conscience came between the antagonist muscles of
poverty and pride. For some of these very offences, he had been condemned,
by the court martial. Even then, he had secretly become, at heart, a
scoundrel and a renegade; and, covertly, under a feigned name, had already
tendered his services to the enemy.
The sentence of the court, sheer justice, but so graciously mingled with
mercy, as scarcely to wear the aspect of punishment, supplied him with the
very thing he coveted--a pretence, for complaining of injustice and
oppression. He sought the French ambassador; and, after a plain allusion
to his own needy condition, shadowed forth, in language, not to be
mistaken, his willingness to become the secret servant of France. The
prompt reply of the French minister is of record, most honorable for
himself, and sufficiently humiliating to the spirit of the applicant.
The result is before the world--Arnold became a traitor, detested by
those, whose cause he had forsaken, and utterly despised by those, whose
cause he affected to espouse--trusted by them, only, because they well
knew he might safely be employed against an enemy, who would deal with
him, if captured, not as a prisoner of war, but as a traitor. I have, thus
briefly, alluded to the career of Arnold, only for the purpose of
illustration.
No truth is more simple--none more firmly established by experience--none
more universally disregarded--than, that the growth of luxury must work
the overthrow of a republic. As the largest masses are made up of the
smallest particles, so the characteristic luxury of a whole people
consists of individual extravagance and folly. The ambition to be foremost
becomes, ere long, the ruling, and almost universal, passion--in still
stronger language, "_it is all the rage_." In a certain condition of
society, talent takes precedence of virtue, and men would rather be called
knaves than fools: and, where luxury abounds, as the poorer and the
middling classes will imitate the wealthier, there must be a large amount
of indebtedness, and many men and women of desperate fortunes. We cannot
strut about, in unpaid-for garments, nor ride about, in unpaid-for
chariots, nor gather the world together, to admire unpaid-for furniture,
without an inward sense of personal degradation.
It would be a poor compliment to our race, to deny the truth of this
assertion. True or false, the argument goes steadily forward--for, if not
true, then that callous, case-hardened condition of the heart exists,
which takes off all care for the common weal, and turns it entirely upon
one's self, and one's own aggrandizement. Nothing can be more destructive
of that feeling of independence, which ever lies, at the bottom of
republican virtue.
This condition of things is the very hot-bed of hypocrisy,--and it makes
the heart a forcing-house, for all the evil and bitter passions, envy,
hatred, malice, and all uncharitableness. Pastors, of all denominations,
may well unite, in the chorus of the churchman's prayer, and cry
aloud--_Good Lord deliver us!_
A very fallacious and mischievous estimate of personal array, equipage,
and furniture has always given wonderful preeminence to this species of
emulation. It is perfectly natural withal. Distinction, of some sort, is
uppermost, in most men's minds. It is comforting to many to know there is
a _tapis_--"_the field of the cloth of gold_"--on which the wealthy fool
is more than a match, for the poor, wise man; and, as this world contains
such an overwhelming majority of the former class, the ayes have it, and
luxury holds on, _vires acquirens eundo_.
None but an idiot will cavil, because a rich man adorns his mansion, with
elegance and taste, and receives his friends in a style of liberal
hospitality. Even if he go beyond the bounds of republican simplicity, and
waste his substance, it matters not, beyond the circle of his creditors
and heirs; if the example be not followed by thousands, who are unable, or
unwilling, to be edified, by AEsop's pleasant fable of the ox and the frog.
But it never can be thus. The machinery is exceedingly simple, in these
manufactories, from which men of broken fortunes are annually turned out
upon the world.
When once involved in the whirl of fashion, extrication is difficult and
painful--the descent is wonderfully easy--_sed revocare gradum_! The
maniac hugs not his fetters, more forcibly, than the devotee of fashion
clings, with the assistance, occasionally, of his better half, to his
_position in society_.
These remarks are, by no means, exclusively applicable to those, who move
in the higher circles. This is a world of gradation, and there are few so
humble, as to be entirely without their imitators.
What shall we do to be saved? This anxious inquiry is not always offered,
I apprehend, in relation to the concerns of a better world. How often, and
how oppressively, the spirit of this interrogatory has agitated the bosom
of the impoverished man of fashion! What shall I do to be saved, from the
terrible disgrace of being exposed, in the court of fashion, as being
guilty of the awful crime of _poverty_, and disfranchised, as one of the
_beau monde_? And what will he not do, to work out this species of
salvation, with fear and trembling? We have seen how readily, under the
influence of pride and poverty, treason may be committed by men of lofty
standing. It would be superfluous, therefore, to inquire, if there be any
crime, which men, heavily oppressed by their embarrassments, and
restrained thereby, from drinking more deeply of that luxury, with which
they are already drunk, will hesitate to commit.
No. LXXXVIII.
There is a popular notion, that sumptuary laws are applicable to
monarchies--not to republics. The very reverse is the truth. Montesquieu
says, Spirit of Laws, book vii. ch. 4, that "_luxury is extremely proper
for monarchies, and that, under this government, there should be no
sumptuary laws_."
Sumptuary laws are looked upon, at present, as the relics of an age gone
by. These laws, in a strict sense, are designed to restrain pecuniary
extravagance. It has often been attempted to stigmatize the wholesome,
prohibitory laws of the several States, in regard to the sale of
intoxicating liquor, by calling them _sumptuary laws_. The distinction is
clear--sumptuary laws strike at the root of extravagance--the prohibitory,
license laws, as they are called, strike, not only at the root of
extravagance, but at the root of every crime, in the decalogue.
The _leges sumptuariae_ of Rome were numerous. The Locrian law limited the
number of guests, and the Fannian law the expense, at festivals. The
Didian law extended the operation of all these laws over Italy.
The laws of the Edwards III., and IV., and of Henry VIII., against shoes
with long points, short doublets, and long coats, were not repealed, till
the first year of James I. Camden says, that, "in the time of Henry IV.,
it was proclaimed, that no man should wear shoes, above six inches broad,
at the toes." He also states, "that their other garments were so short,
that it was enacted, 25 Edward IV., that no person, under the condition of
a lord, should wear any mantle or gown, unless of such length, that,
standing upright, it might cover his buttocks."
Diodorus Siculus, lib. xii. cap. 20, gives an amusing account of the
sumptuary laws of Zeleucus, king of the Locrians. His design appears to
have been to accomplish his object, by casting ridicule upon those
practices, against which his laws were intended to operate. He decreed,
that no free woman should have more than one maid to follow her, unless
she was drunk; nor should she stir out of the city by night, nor wear
jewels of gold, or an embroidered gown, unless she was a professed
strumpet. No men, but ruffians, were allowed to wear gold rings, nor to be
seen, in one of those effeminate vests of the manufacture of Miletum.
The very best code of sumptuary laws is that, which may be found in the
common sense of an enlightened community. Nothing, that I have ever met
with, upon this subject, appears more just, than the sentiments of Michael
De Montaigne, vol. i. ch. 43--"The true way would be to beget in men a
contempt of silks and gold, as vain and useless; whereas we add honor and
value to them, which sure is a very improper way to create disgust. For to
enact, that none but princes shall eat turbot, nor wear velvet or gold
lace, and interdict these things to the people, what is it, but to bring
them into greater esteem, and to set every one more agog to eat and wear
them?"
No truth has been more amply demonstrated, than that a republic has more
to fear from internal than from external causes--less from foreign foes,
than from enemies of its own household.
To the ears of those, who have not reflected upon the subject, it may
sound like the croaking note of some ill boding _ab ilice cornix_--but I
look upon extravagant parade, and princely furniture of foreign
manufacture, the introduction of courtly customs, transatlantic servants
in livery, _et id genus omne nugarum_, as so many premonitory symptoms of
national evil--as part and parcel of that luxury, which may justly be
called the gangrene of a republic.
But does any one seriously fear, that an extravagant fandango, now and
then, will lead to revolution, or produce a change in our political
institutions? Probably not. But it will provoke a spirit of rivalry--of
emulation, not unmingled with bitterness, and which will cost many an
aspirant a great deal more, than he can afford. It will lead the community
to turn their dwellings into baby houses, and to gather vast assemblies
together, not for the rational purposes of social intercourse, but for the
purpose of exhibiting their costly toys and imported baubles. It will tend
to harden the heart; and render us more and more insensible to the cries
of the poor; for whose keen occasions we cannot afford one dollar, having,
just then, perhaps, invested a thousand, in some glittering absurdity. It
will, ultimately, produce numerous examples of poverty, and fill the
community with desperate men.
The line of distinction, between the liberality of a patrician and the
flashy, offensive ostentation of a parvenu, at Rome, or at Athens, was as
readily perceived, as the difference between the manners of a gentleman,
and those of a clown.
Every rank of society, like the troubled sea, casts forth upon the strand,
from year to year, its full proportion of wrecked adventurers--men, who
have gone beyond their depth; lived beyond their means; and who cherish no
care, _ne quid detrimenti Respublica caperet_; but, on the contrary, who
are quite ready for oligarchy, or monarchy; and some of whom would prefer
even anarchy, to their present condition of obscurity and poverty.
Law and order are of the first importance to every proprietor; for, on
their preservation, the security of his property depends; but they are of
no importance to those, who are thus, virtually, denationalized, through
impoverishment, produced by a career of luxury. Such, if not already the
component elements of Empire clubs, are always useless, and often
dangerous men.
It was a well known saying of Jefferson's, that _great cities_ were _great
sores_. "In proportion," says Montesquieu, "to the populousness of towns,
the inhabitants are filled with notions of vanity, and actuated by an
ambition of distinguishing themselves, by trifles. If they are very
numerous, and most of them strangers to one another, their vanity
redoubles, because there are greater hopes of success." According to the
apothegm of Franklin, it is the eyes of others, and not our own, that
destroy us.
"Every body agrees," says Mandeville in his Fable of the Bees, i. 98,
"that, as to apparel and manner of living, we ought to behave ourselves
suitable to our conditions, and follow the example of the most sensible
and prudent, among our equals in rank and fortune; yet how few, that are
not either universally covetous, or else proud of singularity, have this
discretion to boast of? We all look above ourselves, and, as fast as we
can, strive to imitate those that, some way or other, are superior to us."
"The poorest laborer's wife in the parish, who scorns to wear a strong
wholesome frize, will half starve herself and her husband, to purchase a
second-hand gown and petticoat, that cannot do her half the service,
because, forsooth, it is more genteel. The weaver, the shoemaker, the
tailor, the barber, has the impudence, with the first money he gets, to
dress himself like a tradesman of substance; the ordinary retailer, in the
clothing of his wife, takes pattern from his neighbor, that deals in the
same commodity by wholesale, and the reason he gives for it is, that,
twelve years ago, the other had not a bigger shop than himself. The
druggist, mercer, and draper, can find no difference, between themselves
and merchants, and therefore dress and live like them. The merchant's
lady, who cannot bear the assurance of those mechanics, flies for refuge
to the other end of the town, and scorns to follow any fashion, but what
she takes from thence. This haughtiness alarms the court--the women of
quality are frightened to see merchants' wives and daughters dressed like
themselves. This impudence of the city, they cry, is intolerable;
mantua-makers are sent for; and the contrivance of fashions becomes all
their study, that they may have always new modes ready to take up, as soon
as those saucy cits shall begin to imitate those in being. The same
emulation is contrived through the several degrees of quality, to an
incredible expense; till, at last, the prince's great favorites, and those
of the first rank, having nothing else left, to outstrip some of their
inferiors, are forced to lay out vast estates in pompous equipages,
magnificent furniture, sumptuous gardens, and princely palaces."
Like an accommodating almanac, the description of Mandeville is applicable
to other meridians, than that, for which it was especially designed.
The history of all, that passes in the bosom of a proud man, unrestrained
by fixed religious and moral principles, during his transition from
affluence to poverty, must be a very edifying history. With such an
individual the fear of God is but a pack-thread, against the unrelaxing,
antagonist muscle of pride. The only _Hades_, of which he has any dread,
is that abyss of obscurity and poverty, in which a man is condemned to
abide, who falls from his high estate, among the upper ten thousand. What
plans, what projects, what infernal stratagems occasionally bubble up, in
the overheated crucible! Magnanimity, and honor, and humanity, and justice
are unseen--unfelt. The dust of self-interest has blinded his eyes--the
pride of life has hardened his heart.
If the energies of such men are not mischievously employed, they are, at
best, utterly lost to the community.
No. LXXXIX.
I noticed, in a late, English paper, a very civil apology from Sheriff
Calcraft, for not hanging Sarah Thomas, at Bristol, as punctually as he
ought, on account of a similar engagement, with another lady, at Norwich.
The hanging business seems to be _looking up_ with us, as the traders say
of their cotton and molasses; though, in England, it has fallen off
prodigiously. According to Stowe, seventy-two thousand persons were
executed there, in one reign, that of Henry VIII. That, however, was a
long reign, of thirty-eight years. Between 1820 and 1830, there were
executed, in England alone, seven hundred and ninety-seven convicts. But
we must remember, for what trifles men were formerly executed _there_,
which _here_ were at no time, capital offences. According to authentic
records, the decrease of executions in London, since 1820, is very
remarkable. Haydn, in his Dictionary of Universal Reference, p. 205, gives
the ratio of nine years, as follows--1820, 43--1825, 17--1830, 6--1835,
none--1836, none--1837, 2--1838, none--1839, 2--1840, 1. There is a
solution for this riddle--a key to this _lock_, which many readers may
find it rather difficult to pick, without assistance. Before the first
year, named by Haydn, 1820, Sir Samuel Romilly, who fell, by his own hand,
in a fit of temporary derangement, in 1818, occasioned by the death of his
wife, had published--not long before--his admirable pamphlet, urging a
revision of the criminal code, and a limitation of capital punishment. In
consequence of his exertions, and of those of Sir James Mackintosh
afterwards, and more recently of Sir Robert Peel and others, a great
change had taken place, _in the mode of punishment_. _Crime had not
diminished_, in London--it was _differently dealt with_. I advise the
reader, who desires light, upon this highly important and interesting
subject, to read, with care, the entire article, from which I transcribe
the following short passage--
"_The enormous number of our transported convicts--five thousand annually,
for many years past--accompanied, at the same time, with a large increase
of crime in general, would seem, prima facie, to be no very conclusive
argument, in favor of the efficiency of the present system._" Ed. Rev., v.
86, p. 257, 1847. "WHAT SHALL BE DONE WITH OUR CRIMINALS?" Such is the
caption of the able article, to which I refer. Lord Grey, and the most
eminent statesmen of Great Britain have been terribly perplexed, by this
awful interrogatory.--Well: _we_ are a very great people.--Dr. Omnibus,
Squire Farrago, and Mrs. Negoose have no difficulty upon this point; and
there is some thought in our society, of sending out Mrs. Negoose, in the
next steamer, to have a conference with Lord Brougham. Lord Grey's plan
was, after a short penitentiary confinement, to distribute the
malefactors, among their own colonies, and among such other nations, as
might be willing to receive them. Sending them to Canada, therefore, would
be sending them, pretty directly, to the States. Dr. Omnibus is greatly
surprised, that Lord Grey has never thought of building prisons of
sufficient capacity to hold them all, since there are no more than five
thousand transported, per annum, in addition to those, who have become
tenants of prisons, for crimes, which are yet capital, in England, and for
crimes, whose penalty is less than transportation.
It seems to be the opinion of the writer in the Edinburgh Review, whom I
last quoted, that, under the anti-capital punishment system, there has
been "_a large increase of crime in general_." This he states _as a fact_.
Facts are stubborn things--so are Mrs. Negoose--Dr. Omnibus--and Squire
Farrago. They contend, that our habits of life and education, and the
great difference of our political institutions entirely nullify the
British example. They show, with great appearance of truth, that the
perpetrators of murder, rape, and other crimes, in our own country, are
more religiously brought up, than the perpetrators of similar crimes, in
Great Britain. The statistics, on this point, are curious and interesting.
They present an imposing array of educated laymen, physicians, lawyers,
bishops, priests, deacons, ruling elders, professors, and candidates, in
the United States, who have been tried, for various crimes, by civil or
ecclesiastical courts; deposed, or acquitted, on purely technical grounds;
or sentenced to imprisonment, for a shorter or longer term, or to the
gallows, and duly executed. Now we contend, that the ignorant felon, and
such he is apt to be, in all countries, where there is but little
diffusion of knowledge, and especially of religious knowledge, when again
let loose upon the community, whether by a full pardon, or by serving out
his term, returns, commonly, to his evil courses, as surely as the dog to
his vomit, or the sow to her wallowing in the mire. But we find, that men
of talent and education, and particularly men, who have figured, as
preachers, and professors of religion, who commit any crime, in the
decalogue, or out of it, become objects of incalculably deeper and
stronger interest, with a certain portion of the community--after they
repent, of course--which they invariably do, in an inconceivably short
space of time. Thus, when strong liquor, and lust, and prelatical
arrogance turn bishops, priests, and deacons, into brutes, and prodigals,
and sometimes into murderers, they, _invariably_, excite an interest,
which they never could have excited, by preaching their very best, to the
end of their lives.
I have sometimes thought, that, in the matter of temperance, for which I
cherish a cordial respect, a lecturer, as the performer is called, though
the thing is not precisely an abstract science, cannot do a better thing,
for himself and the cause, when he finds, that he is wearing out his
welcome with the public, than to get pretty notoriously drunk. Depend upon
it, he will come forth, purified from the furnace. He will take a new
departure, for his temperance voyage. His deep-wrought penitence will
enlist a very large part of the army of cold-water men, in his favor. A
small sizzle will be of no use; but the drunker he gets, the more
marvellous the hand of God will appear, in his restoration.
From these considerations, our Anti-Punishment Society reason onward, to
the following conclusions: that, whatever the penalty imposed may be,
deposition, imprisonment, or death, it is all wrong, radically wrong. For,
thereby, the community is deprived, for a time, or forever, of the
services of a true penitent. They all become penitent, if a little time be
allowed, or they are persecuted innocents, which is better still.
Besides, how audacious, for mere mortals to lessen the sum total of joy,
among the immortals! As religious men, who, when _misguided_, commit rape
or murder, invariably repent, if there is any prospect of pardon; hanging
may be supposed, in many cases, to prevent that great joy, which exists in
Heaven--rather more than ninety-nine per cent.--over one sinner that
repenteth.
To be convicted of some highly disgraceful or atrocious crime, or to be
acquitted, upon some technical ground, though logically convicted, in the
impartial chancel of wise and good men's minds, is not such a terrible
thing, after all, for a vivacious bishop, priest, or deacon; provided, in
the former case, he can contrive to escape the penalty. Such an one is
sometimes more sure of a parish, than a candidate, of superior talents,
and unspotted reputation. It is manifest, therefore, that a serious injury
is done to society, by shutting up, for any great length of time, these
penitent, misguided murderers, ravishers, &c., and, especially, by hanging
them by the neck, till they are dead.
This phrase, _hanging by the neck, till they are dead_, imports something
more, than some readers are aware of. It was not uncommon, in former
times, for culprits to come--_usque ad_--to the gallows, and be there
pardoned, with the halter about their necks. Occasionally, also, criminals
were actually hung, the halter having been so mercifully adjusted, as not
to break their necks, and then cut down, and pardoned. Of thirty-two
gentlemen, traitors, who were taken, in the reign of Henry VI., 1447,
after Gloucester's death, five were drawn to Tyburn on a hurdle, hanged,
cut down alive, marked with a knife for quartering, and then spared, upon
the exhibition of a pardon. This matter is related, in Rymer's Foedera,
xi. 178; also by Stowe, and by Rapin, Lond. ed. 1757, iv. 441.
We are a cruel people. Our phraseology has become softened, but our
practice is merciless, and our lawgivers are Dracos, to a man. When a poor
fellow, urged by an impulse, which he cannot resist, seizes upon the wife
or the daughter of some unlucky citizen, commits a rape upon her person,
and then takes her life to save his own--and what can be more natural, for
all that a man hath will he give for his life--with great propriety, we
call this poor fellow a _misguided man_. This is as it should be. He
certainly committed a mistake. No doubt of it. But are we not all liable
to mistakes? We call him a _misguided man_, which is a more Christian
phrase than to say, in the coarser language of the law, that he was
_instigated by the devil_. But, nevertheless, we hang this _misguided_ man
by the neck, till he is dead. How absurd! How unjust!
A needy wanderer of the night breaks into the house of some rich, old
gentleman; robs his dwelling; breaks his skull, _ex abundanti cautela_;
and sets fire to the tenement; thus combining burglary, murder, and arson.
He well knew, that ignorance was bliss; and that the neighborhood would be
happier, in the belief, that accident was at the bottom of it all, than
that such enormities had been committed, in their midst. Instead of
calling this individual, by all the hard names in an indictment, we
charitably style him an _unfortunate person_--provided he is caught and
convicted--if not, he deems himself a _lucky fellow_, of course. Now, can
anything be more barbarous, than to hang this _unfortunate person_, upon a
gallows!
A desperate debtor rouses the indignation of a disappointed creditor, by
selling to another, as unincumbered, the very property, which had been
transferred, as collateral security, to himself. Irritated by the
creditor's reproaches, and alarmed by his menaces of public exposure, the
debtor decides to escape, from these compound embarrassments, by taking
the life of his pursuer. He affects to be prepared for payment; and
summons the creditor, to meet him, at a _convenient_ place, where he is
_quite at home_, and at a _convenient_ hour, when he is _quite
alone--bringing with him the evidences of the debt_. He kills this
troublesome creditor. He is suspected--arrested--charged with
murder--indicted--tried--defended, as ably as he can be, by honorable men,
oppressed by the consciousness of their client's guilt--and finally
convicted. He made no attempt, by inventing a tale of angry words and
blows, to merge this murder, in a case of manslaughter: for, before his
arrest, and when he fancied himself beyond the circle of suspicion, he had
_framed the tale_, and reduced it to writing, in the form of a brief,
portable memorandum, found upon his person. _He had paid the creditor, who
hastily grasped the money and departed--returning to perform the unusual
office of dashing out the debtor's name from a note delivered up, on
payment, into the debtor's possession!_ Thus he cut short all power to
fabricate a case of manslaughter.
Why charge such a man with _malice prepense_? Why say, that he was
_instigated by the devil_? Not so; he was an _unfortunate, misguided,
unhappy_ man. And yet the judges, with perfect unanimity, have sentenced
this unhappy man to be hanged! The liberties of the people appear to be in
danger; and it is deeply to be deplored, that those gentlemen of various
crafts, who are sufficiently at leisure, to sit in judgment, upon the
judges themselves, have not appellate jurisdiction, in these high matters,
with power to invoke the assistance of the Widow's society, or some other
male, or female, auxiliary _ne sutor ultra crepidam_ society.