The Liberator

Capital Punishment.

SPEECH

OF

JOHN A. ANDREW, ESQ.,

BEFORE THE LEGISLATIVE COMMITTEE,

Thursday, March 22, 1855.

[Reported by J. N. W. Terry, or similar]

Mr. Chairman: The discussion of this question has been so ample, that nothing more seems to me needful by way of illustration or enforcement of the principles upon which the petitioners ask for the abolition of the Death Penalty. But it seems desirable, for the purposes of the Committee, that we should endeavor to present some brief array of the facts and historical proofs which have been referred to incidentally, in the course of this discussion, and which, we contend, fully support—so far as history and experience can support—the expediency of the proposition which is submitted to the Legislature. And it is extremely satisfactory, to feel that the subject is one on which there can be but one tendency of mind,—no matter what may be the opinion,—there can be but one tendency of mind, in your Committee, or in the Legislature. It must be the desire of every humane man, and of every man who sympathizes at all with the spirit of our time, to find some way, if possible, by which the Death Penalty may be avoided. Nobody seeks an excuse for extending it. No gentleman would feel disappointed, if he could be convinced that, beyond all doubt, the Death Penalty could be safely abandoned. And I am inclined to believe, that, if this discussion has entirely cleared away the difficulties some gentlemen feel, growing out of its theological relations, all the substantial obstacles which lie in anybody's path are entirely removed; for I do not believe that any one who has ever bestowed any thought at all to the investigation of this subject, by reference to principles, to the facts of history and experience, ever felt himself left, at last, in such a state of dismay, that he would not, as a legislator, dare to try the experiment of the abolition—dare to try the experiment of the abolition of the gallows.

This Legislature has no power—and if they had, we do not invoke it—to say that no man shall ever suffer the penalty of death for crime, hereafter. The statute, made this year by you, may be repealed or modified by your successors the next year. No Legislature can do more than to take the initiative in the trial of the experiment. The practical question, then, is this: whether you are not called upon by the duties of legislation, to gratify the longing of every humane heart, by the trial of the experiment. That (narrowed down) is substantially and practically all we have before us.

Let us dare to try the experiment of a more humane legislation; let us look to see whether there is any light reflected from experience and from history.

Before going into that branch of the inquiry, let me first state the case:

"The point then at which we seem to have arrived is this: We cannot justify putting a criminal to death on the plea of protecting society from his outrages,—because confinement would be equally effectual; nor by the plea of reforming him, for this is excluded by his death; nor by the plea of taking vengeance on him, for this is generally disavowed nor by that of deterring others from the commission of the crime who are still guiltless, because he is not answerable for them, or in any way connected with them. From these considerations, it appears to follow that, in dealing with offenders, we are bound to restrict ourselves to those punishments which, while they shall be equally efficacious in providing for the protection of society, shall be the least injurious to the criminal, and that these are only two in number, viz: confining a culprit for life; or, subjecting him to a temporary discipline sufficient to produce such a change in his dispositions, that, after undergoing it, he shall be fitted to return to society, cured of the inclination to infringe its laws."—Westminster Review, of April, 1854.

I think that states the argument with substantial accuracy and correctness, and I adopt it as my own.

I come now to the inquiry, what has been the experience of those states and nations who have tried the experiment of the abolition of the death penalty? If it is useful to put men to death for crime, there must be some good effect produced by it. And there ought to be no doubt in this matter, because the experience of the world has been long enough, the gallows has had victims enough, to have given an experience, on that side of the argument, so rich and so ample that there could be no room for controversy. And yet we are met at the outset—if we were to think for a moment that this ancient system of putting men to death for crime had worked well, (judging merely from what we know of the general effect by incidental information,)—we are met at the outset by the testimony of a man as keen in his observation, as thorough in his learning, as conspicuous for his legal position, as Henry Brougham, late Lord Chancellor of England; and I will read to you an extract from a speech made by him some eighteen years ago, when Mr. Ewart's motion to limit the punishment of death to cases of actual murder was pending in the British Parliament.

I quote from the writings of Sydney Taylor. (p. 263.) Sydney Taylor was a barrister of distinction, who devoted considerable time to the investigation of this subject, and was a warm advocate for the abolition of the Death Penalty. Lord Brougham said, in 1837:

"His firm belief and conviction were, that capital punishment had failed in all and every case—even in those cases of murder for which alone it was justifiable, if justifiable at all.—Whether the punishment of death should be inflicted, even for murder, was an opinion which had for a considerable time been discussed: into the merits of that discussion he would not then enter, further than that, if the punishment of death should be retained, it should be for that crime only; yet, even for that he thought its tendency was not the prevention of crime: on the contrary, it tended to brutalize the mind, and to prepare men for the commission of that very crime for which alone, if retained at all, it ought to be continued."

I am not aware that any gentleman in this hall is so ultra in his view of capital punishment that he could, if he attempted it, go any further than Lord Brougham. The advocates of the Death Penalty maintain that its infliction as a punishment for murder is necessary for the security of life. But the punishment of death for murder, as well as for other crimes, has turned out, within the experience and information of Lord Brougham himself, to have been a failure,—a failure in Great Britain, a failure on the continent, a failure everywhere. If there is a man in Great Britain who is learned in all matters relating to law and law reform, it is Henry Brougham, himself one of the original leaders in law reform; having devoted the best years of a long life to an extensive practice at the bar, having been elevated to the woolsack, and since then, a constant, active, laborious member of the House of Lords,—and he states, as the result of the experience and learning of a life-time, that the penalty of death, as a punishment for crime, has proved to be a failure, not only for minor and secondary offences, but even for the offence of murder itself.

Well, gentlemen, you and I have a common cause; we have a common purpose; we equally desire our own protection, personally; we equally desire the protection and safety of our families. Do you feel any doubt as to the result,—do you feel afraid that you cannot be safe at night if this experiment should be tried here in Massachusetts of a different penalty, after the testimony of such a man as Lord Brougham, that the punishment of death has always proved a failure since time began?

But, out of a host of others, let me select one more witness. Edward Livingston,—one of the brightest names at the American bar,—one of the noblest, as well as one of the ablest and most profound and learned of American jurists.—conspicuous as a statesman down until within a period long since my own remembrance,—exhausted all the learning of his time in the inquiries which he entered into, in connection with this subject, for the purpose of enabling him to mature a system of jurisprudence for the new territory of Louisiana. And the testimony of Edward Livingston is as ample and unequivocal as the testimony of Lord Brougham. I will take the liberty of referring you to a pamphlet, extracted from Livingston's great work on the criminal code of Louisiana; and I will first read an extract from the 12th page of his argument on Capital Punishment;

"Other arguments, not less forcible,—other authorities, equally respectable,—might be adduced to show the ill effects of this species of punishment: but the many topics that are still before me, in this report, oblige me to pursue this one no farther than to inquire, what good can be expected, or what present advantage is derived, from retaining this punishment? Our legislation (referring to the legislation of Louisiana) surrendered it without a struggle, in all cases, at first, but murder, attempt to murder, rape, and servile insurrection; and afterwards extended it to a species of aggravated burglary. Now, as these cases are those only in which it has been deemed expedient to retain this punishment—as it has been abandoned in all others—the serious inquiry presents itself, why it was retained in these, or why abandoned in the others? Its inefficiency, or some of the other objections to it, must have been apparent in all the other numerous offences in which it has been dispensed with, or it would certainly have been retained, or restored. Taking this acknowledged inefficiency, in the numerous cases, for the basis of the argument, let us inquire whether there is anything which makes it peculiarly adapted to the enumerated crimes, which it is unjust or inexpedient to apply to any of the others?"

It is a fact worthy of consideration, that in England, and on the continent of Europe, as well as in this country,—those countries which derive their code from the common law of England and those which derive it from the civil law, have united in reducing the number of offences punishable with death until they have got down to something like half a dozen, and sometimes until it is entirely abolished. That was the result in Louisiana, which has been under the government of France and Spain, and derived its law from the civil code of Europe. But if the Death Penalty has worked well, why is it not continued? That is the practical question which is put by Mr. Livingston. You put a man to death for stealing. You continue that punishment for that crime for years—still the offence is increasing. At length, you become dissatisfied: you find that the punishment of death does not work well, and you punish the man otherwise for stealing, and the crime diminishes; you are satisfied, and you will not return to the old penalty. It so happens that experience shows, these countries do not return—they do not go back;—and why is it? Where is the line to be drawn?—and where is the rule by which you are able to say that the abolition which has worked well as applied to one after another of a long list of offences—one hundred and sixty, I believe, were once capital in England—will not work well if applied to another class of offences?

Mr. Livingston continues:

"We have three modes of discovering the truth on this subject: by reasoning from the general effects of particular motives on human actions; by analogy, or judging from the effects in one case to the probable effects in another; or by experience of the effect on the particular case. The general reasoning upon the justice and efficacy of the punishment will not be repeated here, but it is referred to as being conclusive as to all offences, and admitting of no exceptions that would apply to murder, or either of the three other cases in which our laws inflict it. If we reason from analogy, we should say the only argument ever used in favor of death as a punishment is, that the awful example it presents will deter from the commission of the offence; but by your abandonment of it in all cases but these, you acknowledge it has no efficacy there. Analogy, therefore, would lead us to the conclusion, that if it was useless in the many cases, it would be so in the few. But it is acknowledged that no analogy, or any other mode of reasoning,—no theory, however plausible,—ought to influence, when contradicted by experience. You have tried this remedy, and found it ineffectual! The crimes to which you have applied it are decreasing, in number and atrocity, under its influence! If so, it would be imprudent to make any change, even under the most favorable prospects that the new system would be equally efficient. Let us try it by this test. For the first three years after the transfer of the province, there was not a single execution or conviction for either of these crimes. In the course, however, of the first six years, four Indians, residing within the limits of the State, made an attack on some of the settlers, and were either given up by the tribe, or arrested and condemned: and two were executed 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. I mean, all that class that have their origin in a mistaken sense of honor, including not only the lives sacrificed to the tyranny of public opinion in duels, but those less excusable and increasing cases of wounds and death, inflicted in atonement for some injury offered to personal dignity. Under the statute against stabbing, I find but three convictions up to the year 1822; one instance of rape, to the same period; and what is somewhat singular, not a single instance of burglary from 1805 until 1820, in which year, and the succeeding one, there were two cases, just two years after it was made a capital crime. What are we to conclude from this statement? First, I think, that of burglary, one of the crimes to which capital punishment is annexed, fifteen years' experience, (during which time there was not a single conviction, and, as far as is known, not a single indictment, under the law which denounced imprisonment as the penalty,) ought to have convinced us, that the severer punishment was not necessary; while the two convictions which so soon succeeded the promulgation of that law, are strong testimony that the punishment of death is not an effectual remedy for the evil. As to rape, that its rare occurrence is much more properly to be attributed to the manners of the age than to any fear of the punishment annexed; for if that were the efficient cause, we should certainly find it at least as powerful in the case of murder—a crime to which the offender is not stimulated, as in the former case, by the strongest sensual appetite."

Now, you may say, that we cannot extract a general law from so brief an experiment,—that the conclusion would be too wide for the premise, if we limited ourselves to the experience of Louisiana during that comparatively short period. It may be so: but still, for all the purposes of the argument I now address to you, it is an ample argument. You do not make laws for all time, or for a generation; your power will have exhausted itself at the end of the year in which your law is made; and if you will only dare to try the experiment of abolishing the capital penalty, for one year, if, within that year, it is found not to work well, another Legislature can restore it.

Mr. Livingston then passes, for illustration, to the history of the experiment, as it has been tried in various other countries. He refers to the experience of Tuscany, to which allusion was made by Mr. Phillips. He states the comparison between Tuscany and Rome, as referred to by Dr. Franklin, which is put so well and briefly, that you will pardon me for reading that also:

"In Tuscany, as we have seen, neither murder nor 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."

The experience of Tuscany for twenty years added to the experience of Louisiana during a less number of years,—do they not encourage the hope that Massachusetts might live without the gallows?

Dr. Beecher—What would become of those who were cut off before that time?

MR. ANDREW—That question easily answers itself, because it assumes that the experiment will not work well, and that there are those who, in the meantime, will be cut off by reason of the non-use of the Death Penalty, and then asks us what we are going to do about it. Let him show first that such will be the result

DR. BEECHER (interrupting)—The gentleman misunderstands me. I take him on his own ground. He says, if the experiment works badly, we can retrace our steps; and I ask what, in that case, will become of those who have been killed in the meantime? Shall we desert a certainty for an uncertainty?

MR. ANDREW—The learned Doctor's assumption still continues. We are not deserting a certainty for an uncertainty. We are upon a field of inquiry, and we are investigating the history of the world and the experience of men, in order to illustrate this inquiry. It is conceded, on all hands, that it would be desirable to abolish the death penalty, if it would be safe to do so: and the question now is, are we ever to abolish it? It is said, "it will not do, because it is unsafe."—When we argue from human nature, and the principles of human nature, and the present condition of society, why, we are met with the objection, "That is well enough, as far as it goes; it is ingenious and able, as a piece of argumentation, but what does the experience of the world show?" Then we advance one step further, and show what the experience of the world proves on this subject, so far as it proves anything; and I undertake to say, that the experience of mankind comes in aid and support of the theoretical arguments drawn from the principles of human nature;—and that is the purpose for which all this testimony is introduced.

Now, gentlemen, on the one hand, those who advise the adhesion of government to the death penalty, may say that it will not do to abolish it; you must hang men; the death penalty is the true theory of government, and we must adhere to it; life for life; if a man puts another to death, he deserves to be hung; it is not safe to allow such a man to be about. Then we interpose with the facts of history, and we are met by the saying,—"All these facts are very well, but they do not prove that government is never to punish with death. We cannot reason to the future from the past."

It seems to me these gentlemen stand precisely in the position of the French historian, who wrote a very ingenious and agreeable book, with a view of supporting a certain theory of history which he entertained. Upon meeting with one of his critical friends, the subject of his new book was introduced, and the gentleman asked his friend—“How do you like my history?” "Well," said the critic, "it is a very beautiful, interesting book; it is a very ingenious theory of history; but somehow or other, I think your theory is not at all sustained by the facts." "Very well," replied the author, "so much the worse for the facts!"

Now, I will give you some more facts, all tending to illustrate the safety of abolition. It will not do to say these facts are only coincidences; for how should it happen that the coincidences are all one way? They tend to prevent us from being very much afraid of trying the experiment, because they show that human life is safer without the death penalty than with it; and if Dr. Beecher will guarantee us some way of avoiding the mistakes to which judges and jurors are liable, and will restore the innocent men who have been put to death by the hand of the law, in consequence of the retention of the gallows, we will bring to life all those who shall be put to death by the hand of the assassin during the trial of the experiment, if the result shall turn out against us,—and that is a fair bargain. A challenge is just as good from one side as from the other.

But to continue our illustration from the facts of experience. Let me refer you to Mr. Rantoul's report, of 1836, pp. 72, 73:

"Often, very often has it happened, that an execution has been followed on the next day, or within a few weeks, by suicides among those who witnessed the scene. It cannot be expected, therefore, that it should have any peculiar virtue to deter from crime; least of all from that crime for which it steels the breast, and braces up the nerves. Very lately, in the State of Ohio, and the day on which a man was executed for the murder of his wife, under circumstances of particular cruelty, another man, near the place of execution, murdered his wife in the same manner; and this is by no means the only instance where the crime seems to have been directly suggested by the punishment intended to prevent it. Howard tells us that in Denmark, where executions are seldom known, women guilty of child-murder were sent to the spin-houses for life, a sentence dreaded so much more than death, that since the change, the crime has been much less frequent. He also noticed the fact that in Amsterdam, there had not been a hundred executions for a hundred years, while in London, from 1749 to 1771, there were six hundred and seventy-eight, or nearly thirty a year; yet the morals of London are certainly not improved in proportion; and the English are becoming convinced, by experience, that it is not by the prodigal waste of the blood of offenders that offences are to be checked, and least of all those high crimes springing from ungovernable passions or a depravity or stupidity beyond the reach of motives not competent to restrain lesser criminals from lesser guilt. In France, capital punishments do not diminish the number of murders, which in 1842 amounted to 267, while the average of five preceding years was only 227. In Pennsylvania and Ohio, where murder is the only crime punished with death, the other five crimes capital among us are as rare as anywhere in Christendom. In Maine, four of these offences have ceased to be capital, with such favorable results that no one proposes to go backward, but there is a strong disposition to abolish all capital punishments. In New Hampshire, where they punish only murder and treason with death, the proportion of convicts in the State Prison to the population, is only one in 16,208, while in Massachusetts, with six capital crimes, it is one to 7,016. In Tuscany, while there were no capital punishments, there were but four murders in twenty-five years, while in Rome there were twelve times that number in a single year, death being the penalty. Under the stern severity of the British law, crimes have increased in fourteen years, as twenty-four to ten, that is, more than doubled! Of 167 convicts under sentence of death, Mr. Roberts found that 164 had attended executions. A punishment cannot be necessary to repress the crime of murder, which has not so strong a tendency to repress it as milder punishments. A punishment cannot be necessary which fosters the propensities which occasion murder."

It was only the next year after this report was made, that the extraordinary and pertinent confession of Lord Brougham was made to the British Parliament, of the result of his experience, which I just now had the honor to read to the Committee.

Well, gentlemen, since that time,—within a very few years,—the number of crimes which were punishable with death in Massachusetts, when Mr. Rantoul commenced his brilliant labors upon this subject of penal reform, has been reduced down to one, so that to-day, only murder is capital in Massachusetts. Now, if the infliction of the death penalty had worked well when applied to the punishment of other offences than murder, why did we not continue it? Step by step, the world turned round, and step by step, public sentiment rose higher and higher, until at last it rose high enough to strike off from the list of capital crimes all but one—murder. And nobody asks that we should return. The Insurance Companies ask no more for insuring houses than when arson was punishable with death; nor are men any less safe on the highway than in old times, when the highway robber suffered death;—and he always was punished capitally in old times, in Massachusetts; not convicted and then pardoned, but if convicted, he always swung for it;—yet nobody feels that his purse or his person is any less safe on the highway now than in former times; nobody asks that we should retrace our steps.

As an illustration of the effect produced upon the minds of men who have attended executions, let me mention, in passing, that the last person who was put to death in Suffolk county, for the crime of murder, (I refer to the late Professor Webster,) was, you might say, a professional adept at hangings; a man who had never, during his life, failed to embrace the opportunity of seeing an execution. That is the testimony of those who knew him from his youth; and according to the testimony of our friend Spear,—who has for many years, in his pursuit after truth, visited every prisoner under conviction who wished to see him,—he has found it an almost universal rule, that the condemned men had seen executions, and were firm believers in the fitness of the Death Penalty. I think he never found a man under conviction for murder, who was not an adherent of the doctrine of "blood for blood." So that, whether you test the case by inquiring into the effect of witnessing the last awful scene, or whether you test the moral effect of the principle, or the doctrine, you find that the Death Penalty is always equally unfortunate. It is an important fact, that, so far as we know, there has never been found a murderer on our side of the case. I do not push this to the indecorous extreme of suggesting, even, that those of our friends who do not believe in the abolition of the Death Penalty are any more likely to commit murder than the petitioners—yet it is an extraordinary coincidence, that the convicted murderers are all on their side.

I refer you again to Mr. Taylor's work, (pp. 91-93,) for the experience of Belgium. This is another historical illustration in our favor. Taylor says:

"Belgium affords remarkable proofs of the truth of both propositions. When the executions in that country were numerous, crimes of blood were also numerous. When the enforcement of the capital laws was greatly mitigated, crimes of violence diminished. When the axe was laid aside, as an instrument of justice, a further diminution of such crimes took place—thus practically proving that laws which do not respect human life, either infuse into human minds the murderous principle, or stimulate it into action. Our proofs as to Belgium are taken from the official tables lately printed for the legislature—containing an abstract of executions and prosecutions for murder, every five years—commencing with the beginning of the year 1800. Here they are:

5 years ending with	1804	235	150
5	1809	88	82
5	1814	71	64
5	1819	26	42
5	1824	23	38
5	1829	22	34
5	1834	None.	20

Let me remark here, Mr. Chairman, while on this one point, that the spectacle of capital punishment either infuses into the mind of man the spirit of murder, or stimulates it into activity. Every man who, from any low motive, goes to witness an execution, goes in the spirit of a murderer. Every man who witnesses an execution, when he need not, goes there in the spirit of a murderer,—unconsciously, perhaps, to himself, but still truly. Why does he go? why does he go? That he may dabble in a fellow creature's blood; that he may excite himself, as in the last act of a tragedy, by beholding the dying agonies of a helpless fellow mortal! Does the covenant with Noah compel him to go there?—Nobody pretends it. Does the law of Moses?—Nobody suggests it. Does the thirteenth chapter of Romans enjoin him, by an apostolical precept? Nobody was ever mad enough to pretend it. Then why does he go? That he may make sure of the execution of the penalty? He has no part nor lot in the matter. If the officer entrusted with the execution of the law should refuse to perform his duty, he has no power to interpose, but makes himself a murderer, by the law, if he should interpose. Why does he go? Why did the convicted felon kill? If you will answer me that question, I will tell you why the spectator hurries to the gallows foot. Not, that precisely the same motive actuates them both, because no two murderers have ever committed the offence for precisely the same reason:—but exactly the same principle operating on the human heart, manifesting itself through human passion, working itself out through human means, which resulted at last in the commission of the murderer's crime, carries the curious spectator to behold his doom. Every man, too, who assists in the execution of a human being; every man who lends his co-operation to the work which the law charges upon its ministers,—unless he does it from high and holy motives, unless he does it because he believes in the divinity of the command, in the binding force of the injunction, in the solemn duty of the government to take the life of the felon,—unless he does it, because he feels in conscience impelled to it;—if he goes there because the Sheriff paid him to go there, or because curiosity would see how a fellow creature might brave, or quail in, the last extreme of human agony,—if he does it from any motive not the highest, he does it in the spirit of murder. And therefore the law itself makes murderers, whether consciously or unconsciously, of every one of its ministers, of every one of its agents, of every one whom it invites to attend its private executions now, as a committee or jury of inspection, ay, of every one of us who gloats over the sickening story of the dreadful scene! It breeds murder in every heart. That is why it becomes so rife, why such a plentiful crop of homicides springs up always around the foot of the gallows; why every community, where the capital penalty is frequently executed, is always signalized by crimes of violence. It is a law as inevitable as any law of the human mind. You sow the seed, and the crop grows, because the seed will expand in the earth: because it will burst from the soil in which it is planted.

I recollect the first execution which took place in Massachusetts under the administration of Gov. Briggs—Thomas Barrett, of Worcester, hanged for entering a house in the night time, and committing an outrage upon the person of a woman, and taking her life. He was hanged; and before the gallows was cold on which he suffered, two men were arrested for capital offences, one of them for murder, and one for the other offence, and lodged in Worcester jail!

I made some inquiries, after the execution of Washington Goode, in the city of Boston, in 1849, on the result of which the Committee shall judge:

"During the past year, we have had a melancholy experience of the dreadful influence of the gallows. On the 25th day of May, Washington Goode, then scarcely alive, was hanged in the jail-yard of Boston. Before that, several persons, capitally convicted in and near Boston, had been suffered to live, by exchanging the grave for the State Prison; and, so far as is known, society had suffered nothing by this clemency of the Government. The determination to put Goode to death seemed to take a great portion of the community by surprise; and, in a very brief space of time, 25,000 persons remonstrated against his execution, by voluntary petitions to the Governor and Council. Their remonstrances were unavailing. After the fatal purpose of the Executive was known, and while Goode was lying under his sentence of death, thus confirmed, the most horrible murder ever known in the criminal history of Massachusetts was committed, about ten miles from the Boston jail. Since his execution, crimes involving personal violence have increased largely in our neighborhood. Minor offences against the person, such as assault and battery; graver offences against the person, such as felonious assaults with deadly weapons, and assaults with intent to kill, and MURDERS, also, judging from our jail records, have all risen like a crop harvested from the seed of that one execution.

"It is said that executions tend to prevent crime. To test this assertion, I have procured a statement from the Deputy Jailor of Suffolk, of the commitments there for such crimes for the six months preceding, and the six months succeeding, the execution of Goode; and I find that during the six months ending with the execution of Goode, and in the very community which witnessed his execution, four persons were committed for felonious assaults, one for murder, (who was convicted of manslaughter, and sentenced to five years in the State Prison;) one for rape, (who was convicted of a milder offence only, and sent six months to the House of Correction:) and that two hundred and fifty-six persons were committed for simple assault and battery: and I find that in the following six months, eight persons were committed for felonious assaults; three for rape; one for murder, a colored man, (under circumstances almost identical with the case of Goode:) and three hundred and forty-five for assault and battery. Some of these are still awaiting their trials. Others have been convicted."

You may call these coincidences, if you please; but they are facts. Crimes of violence against the person more than doubled, when you compare the six months succeeding the execution of Washington Goode with the six months preceding. How does it happen? If we were not to say that the execution of Washington Goode had anything whatever to do with this increase of crime, it is perfectly clear that his execution did not prevent that result; and therefore your law of punishing crime by the death penalty is not one which seems to succeed. We invite you to a change. If you refuse, why can we not turn the tables upon our opponents and ask them to bring back those whom the gallows will have been the means of sending to an untimely grave, whether by the hands of the hangman or by the hand of the assassin?

You are asked to be afraid to abolish the death penalty; we ask you, if the element of caution itself shall control you, to be afraid not to abolish it. We ask you, rather, as wise statesmen, as calm legislators, who are not afraid to do anything seeming to be wise, and just, and beneficial, to grant the petition.

I am reminded here to say, Mr. Chairman, that although, under Gov. Clifford, we have just had an execution for murder, and under the administration of Gov. Washburn another, yet, here in our neighborhood we have recently had four murders—two in this county and two in Worcester; so that our last experience does not, any more than the earlier, appear to be hopeful of good results from the venerable institution of the gallows.

But let me return again to Mr. Taylor. I was referring you to the 92d and 93d pages, when I commenced this digression. He gave the experience of Belgium; and he remarks, at the foot of the table—

"The above table clearly shows that we do not advance an unsupported theory when we state that laws which make spectacles of judicial homicide familiar to the people, have a natural tendency to increase the crime of murder. We see that crime decreasing as executions decreased, during a course of 35 years, there being in the first five years of that period 235 executions, and 150 convicted of murder; while in the last five years, in which there were no executions, the number of convictions of murder amounted to 20 only. M. de Brouckere has, then, another motive beside that of mere humanity in preventing executions. * * * The object of M. de Brouckere is to prevent the increase of the crime of murder, by preventing the renewal of those judicial examples which have a tendency to efface from the mind of the people that instinctive repugnance to taking human life, which He who has given that life has implanted in the heart of man."

That is the experience of Belgium, in the showing of their governmental reports.

On page 120 of Mr. Taylor's work, you will find still further statistics:

"The crime of murder is the only one now punished with death in Prussia. Would we could say so of England!

"To show the gradual amelioration of the law as to executions even for murder, and along with it the gradual diminution of the crime itself, let us take a period of 15 years, ending with last year, [1834,] and divide it into periods of five years each. It will be found that, in the first period of five years, the total number of executions in Prussia was 54 and the convictions for murder 69. In the second period the number of executions was 33, and the convictions for murder 50. In the third period the executions were only 19, and the convictions for murder diminished to 43.

We showed on a former occasion that the gradual diminution of capital punishments in Belgium, and their practical abolition during the last five years, have been attended also with a remarkable reduction in the amount of crime: so unnecessary are capital punishments proved to be for the protection of society. Unnecessary, did we say?—they are worse than useless; for where they are most prevalent, crime most abounds. Why is it that the despotic government of Prussia is more tender of shedding the blood of its subjects than the Constitutional government of free and enlightened England?

"Now, let us take for England (and Wales) 21 years ending with last year, and divided into periods of seven years each—we are obliged to take those periods instead of five years, because they are the periods fixed upon in the Parliamentary Returns—what are the results? In the first seven years, we find that the number of executions for various offences was 649, there being 141 convicted of murder. In the second period, the executions were 494, the convictions for murder being diminished to 113. In the third period, the executions were reduced to 336, the convictions for murder being diminished to 105. Thus we see that in this country, a reduction in the number of capital punishments has been attended with a diminution in the number of the worst class of offences.

"But, does it not reflect deep disgrace on the rulers of the English nation, that the enforcement of the laws which are intended to repress crime should be so sanguinary compared with the practical application of the laws of Prussia? To show the relative disproportion of extreme punishment in the two countries more clearly, let us take a glance at the relative population of both. The population of Prussia, according to the official census of 1826, was about 12 1/4 millions. The population of England and Wales, according to the census of 1831, was upwards of 13 3/4 millions. Therefore, in 1826, the population of the two kingdoms must have been not widely different. But what an awful disproportion between the amount of human life, in the one and the other kingdom, annually cut off from society by the sword of the law! The Prussian government looks more to the reformation of offenders; while our own rulers are but too much disposed to believe, in spite of all experience, that the great efficacy of criminal law is in its exterminating examples!"

Say that here again are only curious coincidences, if you will; but how do the coincidences happen to be all on one side? Whether you go to one country or another,—whether to the continent of Europe or to England,—to the islands or the main land,—whether you take the Eastern States or the Western States of our country, you always find the same coincidences, on the same side; all tending to what we allege to be that law, more authoritative and more certain than any mere human enactment,—the law written in the nature of man.

Now, in respect to the questions put by Dr. Beecher, we will pause a moment over the statistics of Mr. Rantoul. I will quote, not from Mr. Rantoul's book, containing his collected writings and speeches, but, for the convenience of the Committee, from the able and elaborate report made by Francis W. Bird, Esq., to the House of Representatives, in 1848. (House Document 196.) If you turn to the Appendix to that Report, you will find the papers alluded to, embracing a series of statistics, most carefully prepared. Without undertaking to tire you with any extended reading of the facts and figures, I will simply state, that you will perceive they illustrate the truth of this proposition, viz: that the number of crimes against the person, and the crime of murder, proportionately increase as executions increase, and diminish as executions diminish.

But the learned and reverend gentleman at your right (Rev. Dr. Beecher) asked for some evidence in regard to the experience of Massachusetts. It lies before you, and I pray you to regard it:

"Before proceeding farther in our examination of the administration of criminal justice in other countries, I will furnish complete statistics of the death penalties in this Commonwealth since the adoption of the constitution, October, 1780.

"As there has been no capital conviction since the present year commenced, these tables will terminate on the 31st December, '45, embracing the entire period of sixty-five years. These tables are now published for the first time; and they are the more valuable, because there are none covering so long a space, for any other State of our Union, or, indeed, for any country on the American continent.

"Convictions for capital crimes in Massachusetts, from Oct., 1780, to 1845 inclusive with the result of the several cases:

Crimes.	Ex.	Div.d in Prison.	Com.	Par.	Total
Arson,	4	0	2	0	6
Burglary,	16	0	3	2	21
Highway Rob.	9	0	0	0	9
Robbery,	2	0	0	1	3
Murder,	23	2	7	5	37
Piracy,	1	0	0	0	1
Rape,	6	0	1	1	8
Treason	0	0	2	14	16
	61	2	15	23	101

"Of 101 convictions, there have been 61 executions, or 60 per cent. For treason, there has, fortunately, been no capital punishment, neither in this State, nor in any other State of the Union; but for the other crimes included in this catalogue, the punishment has been much more uniformly inflicted after conviction, than in most countries of the Old World. The proportion of the executions to convictions, is, for each offence, as follows:

Piracy,	-	-	-	100	per cent.
Highway Robbery,	-	-	-	100	“
Robbery,	-	-	-	66	“
Or all robberies,	-	-	-	92	“
Burglary,	-	-	-	76	“
Rape,	-	-	-	75	“
Arson,	-	-	-	66	“
Murder,	-	-	-	62	“
Treason,	-	-	-	0	“

All offences, 60

Excluding treason, for all other offences, about 72 per cent."

Thus you find, that of all the offences that have been punished capitally in Massachusetts for the last sixty-five years, the murderers have come off the easiest, showing clearly that the government, although always disposed to inflict the capital penalty, when sentence has been passed, if the good of society seemed to demand it, has found that, of the several classes, those who had committed murder have furnished the largest proportion able to present the sufficient reasons for the merciful interposition of the Executive. Perhaps, after all, the murderer may not, necessarily, belong to the worst class of men. The crime is a dreadful one—but is not always proof of the greatest depravity. But let us proceed:

"This stern and unrelenting rigor in the executive is not witnessed elsewhere in Christendom, certainly not in any civilized portion of it. In England, whose government we justly denounce as sanguinary, in 21 years from 1813, there were convicted for murder, 877; executed, 326, or 31 per cent. For arson, convicted, 193; executed, 81, or 42 per cent. For rape, and unnatural crimes, convicted, 221; executed, 116, or 52 per cent. Total, for the crimes just mentioned, convicted, 1,291; executed, 523, or 40 per cent.

"In France, in eight years, ending in 1832, the convictions were, for murders of the different classes, highway robbery, and arson, 1,129, and the executions, for all crimes, were only 537, or 47 per cent. For the next three years, the executions were but 74, or less than 25 per year, for more than thirty millions of people.

"In Prussia, in 15 years, ending in 1834, there were convicted for murder, 162, of whom 89 were executed, or 55 per cent.

"In Belgium, in the 20 years ending in 1834, the convictions were,—according to the tables already given,—264; executions, 71, or 27 per cent. Almost the whole of these Belgian convictions were for crimes capital in Massachusetts.

In Saxony, in 20 years ending in 1835, there were 134 capital convictions for murder, arson robbery, and rape; and 36 executions, or nearly 27 per cent.

In England, France, Prussia, Belgium, and Saxony, as well as many other nations that might be mentioned, where the proportion of executions to convictions is much smaller than in Massachusetts, and much smaller than fifty years ago in the same countries, murders have rapidly diminished in those countries in which executions are scarcely known; slightly in France, where the change of policy was not so great; while in England, down to about 1835, murders and attempts to murder increased, since which, under a milder administration of the law, there has been a change for the better.

"In Massachusetts, with less executive clemency than in any other state, or nation, of which I have read, for the nineteenth century, murder seems to have increased. For, if we divide our period of sixty-five years into three periods of twenty years each, and place by itself the last period of five years, we have the following result:

"From 1780 to 1800, convictions for murder, 7 in 20 years: from 1800 to 1820, 12 in 20 years; from 1820 to 1840, 13 in 20 years; from 1840 to 1845, 5 in 5 years; or at the rate of 20 in 20 years.

"Convictions for murder, then, are about three times as frequent as they were fifty years ago, notwithstanding the constantly increasing difficulty in obtaining convictions, (a fact felt by every one,) notwithstanding greater temperance, better education, and the diminution of the crime of murder in almost every country in Christendom.

"Although it has appeared, wherever the experiment has been tried, that frequent executions are followed by frequent murders, and, on the contrary, when executions seldom occur, murders soon become very rare, yet, so strong is prejudice, that the lesson must be a thousand times repeated before men will cease to deny its truth. Let us see, then, how far our experience corroborates the inferences drawn from the experiment of Belgium.

To obtain the total number of executions in Massachusetts, I shall add, to those under the laws of the State, those within our limits under the authority of the United States, and compare the total, for each five years, with the convictions for murder for the same time.

	Mass.	U. S.	Ex.	Murder	Years
1780 to 1785,	13	0	13	2
1785 to 1790,	16	0	16	2
1790 to 1795,	3	3	6	3	7
1795 to 1800,	1	0	1	0
1800 to 1805,	4	0	4	2
1805 to 1810,	3	0	3	4	6
1810 to 1815,	3	1	4	4
1815 to 1820,	3	7	10	2
1820 to 1825,	6	1	7	3	9
1825 to 1830,	5	1	6	6
1830 to 1835,	0	9	9	1
1835 to 1840,	3	0	3	4	10
1840 to 1845,	1	0	1	5	15
1780 to 1845,	61	22	83	37

"The average number of executions for each period of five years is 6.4. Take, then, all the periods in which the executions exceeded this average, and see whether more murders were, or were not, proved to have been committed in the periods immediately succeeding. Then make, also, the same comparison for all those periods in which the number of executions falls below the average.

"Total executions in Massachusetts, in each period in which the number exceeded the average, with the convictions for murder, for the same, and for the succeeding five years;—

same five years.	next five years
13	2
16	2
10	3
7	6
9	3
—	—

"Periods which fall below the average of executions, with the convictions for murder, for the same, and for the succeeding five years;—

6	3	0
1	0	2
4	2	4
3	4	4
4	4	2
6	6	1
3	3	5
27	22	18

"If, in this second series, the 22 convictions had increased in the same proportion as the 10 in the first series, the result would have been 37 convictions, or more than double the 18 which actually occurred. But they should have increased in a much greater ratio than in the first series, if the absence of the terror of the death-penalty multiplies murders; for the executions in the first series are 11 for every five years, while, in the second series, they are only 2.8 for every five years, about one third the former average.

"These facts do not encourage us to persevere in the experiment of Death."

It is a remarkable fact, that we are asked to adhere to the code of blood which we have administered with a consistency not equalled in any other country on the globe, with no more hopeful consequences than these. Yet we are asked to adhere to it,—and when we challenge your judgment, by all these facts which each nation has multiplied into those of the other, the experience of each tested by the experience of the other—we are met by the reply that Cain and Lamech were permitted to live—and that the flood was the consequence!!!

But—to pass on in our research—let us interrogate those States of our own Union which have abolished the capital penalty—for I can only hurry on, and leave the remaining mass of statistics for your own perusal. Alabama abolished it quite a number of years ago for white men—they do not hang white men in Alabama—have not for a great while; it does not appear that white men are now anxious to be hung; nor to hang each other. They do not ask the re-establishment of the gallows. The experiment may be assumed to work well in Alabama; and I hope that God will hasten the day when equal justice and equal mercy may be extended with impartial hand, through the whole brotherhood of universal humanity.

Then, in the State of Michigan, which led the way in the total abolition of the penal code, the experiment has succeeded; and I now present to you, by the kindness of Mr. Fay, (Frank B.) the testimony of her Secretary of State:

"You will find on page 658, Revised Statutes of 1846, of this State, (a copy of which should be found in your State Library,) the law in regard to the crime of murder. The effect, we think salutary. It has produced a greater certainty of conviction, and consequently of relief to community, besides lessening the number of aggravated offences. It is, at least, so considered here.

There is no probability of a return to the old law. But one paper in the State has spoken of a return, within the last two years, and this met with no response.

I am very truly and respectfully yours,

JOHN McKINNEY,

Sec'y of State."

That is the result of the experiment of nine years in Michigan. Are you afraid to try it one year in Massachusetts?

I hold in my hand an extract from a letter from Hon. T. R. Hazard, of Rhode Island, which says:

"At the time of the passage of the law, which was in the winter of '51-'2, I believe there were pending before the Court of Providence County, no less than six indictments for murder. Since its passage, I do not remember that there has been more than one indictment for murder, in the State, in the first degree, and that was for the killing of a police officer, in Providence, under circumstances that would, without much doubt, have insured the acquittal of the murderer under the old severe law: but he is now confined for life in the State's Prison."

He states, also, that the General Assembly have twice refused to re-enact the law,—last winter the motion being made in the Senate, and receiving but seven out of thirty votes. This, he says, is an encouraging indication of public sentiment, when we reflect that the Act abolishing capital punishment passed the Senate by only four majority.

"Seven out of thirty," after two or three years' trial. Now, gentlemen, try it here, and see how many votes you will get next year for a return to the gallows.

The State of Maine comes next in review. And here is a letter to Mr. Fay, from Prof. Upham, of Bowdoin College,—my old instructor and friend,—whose life illustrates all that is beautiful in the human character,—a careful and learned scholar, an honest thinker, and, I might say, by profession, a philosopher. This is the experience of Maine, as testified to by Prof. Upham, under date of Feb. 14, 1855:

"It is now twenty years since the Maine Law on this subject was introduced here. There has been no infliction of capital punishment during that period. The punishment is understood to be practically abolished, and I have heard no wish from any quarter to restore it."

Allow me, gentlemen, to add the argument or illustration which I presented the other day in the very brief remarks I had the honor to offer to the Committee. We have the surest and best test possible of the safety of this experiment,—if it is an experiment,—when we try the case by the practical judgment of practical men. We find that it never costs any more to insure human life in a country or state where capital punishment has been abolished, than it cost while it remained. It cannot, in fairness be alleged, that there is any danger felt by practical men; and therefore it cannot be said there is any danger at all, because a danger which cannot be felt or appreciated is, practically, none. It is a mere speculation—worse than that—a mere fancy. And I do not believe you will be frightened by a mere phantom of the brain, from trying the experiment of the abolition of capital punishment, when you find that it costs no more to insure a man's life in Michigan, where they do not hang, than in New York, where capital punishment still continues,—that it costs no more to insure a man on the Rhode Island side of an imaginary line than on the Massachusetts side of that imaginary line, although they hang nobody in Rhode Island, while we hang systematically in Massachusetts. Go into Maine, where the gallows is virtually abolished—it costs no more to insure a man there than here. Go into Vermont the rate of insurance is not higher there, because Vermont has got rid of the Death Penalty. I venture to say, that the man does not breathe who would refuse to live in a Rhode Island or Michigan, Vermont or Maine, merely because of their having abolished the Death Penalty. Nor do I think any person would even prize his safety at a much better rate in Alabama, where they do hang negroes, but do not hang white men. And it is idle to pretend that any man would feel himself less safe under the abolition of capital punishment in Massachusetts, than he does to-day. Is it not fruitless then, for us to be wasting our time upon this subject, which, after all, has no practical operation upon any sane and sensible man? The thing runs into the ground, after all. It is a mere fancy, a speculation; it is merely the covenant with Noah in another form.

But, gentlemen, there is a peril, and one which I cannot help appreciating, because I am compelled to know something about it; I am compelled to observe something; and I have been compelled to read a good deal,—and that is, the peril of convicting innocent men; the peril of committing to the judgments of human tribunals,—of learned judges and of honest jurors, if you please,—of submitting to the chances or imperfections of human testimony, whether honest or dishonest, the fate of a human life—all the awful and tremendous consequences involved in a verdict of guilty or not guilty, when the penalty is death; consequences as lasting as eternity, as important as all the interests that belong to an immortal being. This peril leads me, with Lafayette, to demand the abolition of the death penalty, "until you can demonstrate the absolute infallibility of human tribunals."

Gentlemen, I recall to my mind the case of Benjamin Cummings, who was executed in Taunton, under conviction for murder. It was some fifteen years ago. I have conversed with the revered Doctor of Divinity—by no means radical in any of his opinions,—by no means of radical blood,—who attended him in the last days and last moments of his mortal life, and he assured me, that if there was anything which could be known by the most sacred and intimate communion of man with man, Benjamin Cummings went out of the world a convicted felon, and suffered, under Massachusetts law, the last penalty for murder, entirely ignorant of the means by which his alleged victim came to his end! He assured me, that he believed, in his heart, that Benjamin Cummings died innocent of the murder of which he was convicted. The Sheriff who hung him, just before the last fatal moment, put his lips to his ear, and, taking his hand—the last communion held by that man on earth with any mortal,—tried to coax from him, as a consolation to himself, a confession of what he knew, if anything he knew, of the means by which the deceased came to his end. "I am as ignorant of it as you," was the reply. Under these solemn circumstances,—at that Supreme moment—the man, apparently penitent and subdued, trusting in the Divine forgiveness and mercy for his hope of hereafter,—with earnest solemnity, adhered to the constant asseveration, that he was innocent "I die innocent"

I myself, Mr. Chairman, have aided the application for pardon of two persons certainly, who had been convicted and sentenced to the State Prison for life for crimes which, since Mr. Rantoul commenced his exertions in the Massachusetts Legislature and until within a few years, were capital. These persons were pardoned; and they were pardoned because the Governor and Council were well satisfied from the evidence before them that they were innocent men. One of these persons, who was an elderly man, I have been able to follow for some considerable period since his discharge, and everything connected with the history of the man since his departure from the State Prison, tends to confirm all who know him in the belief that he was erroneously convicted. Yet, these two men would have rotted in a felon's grave, had it not been for the abolition of the punishment of death, as applied to the class of cases under which they were convicted.

Who does not know, who has any acquaintance or connection with the administration of the law, that the right does not always prevail? As Lord Eldon said—“You must have a very good Judge, a very intelligent jury, and you must have accurate, industrious, able counsel, and plenty of proof, and then, if you have good luck, you may prevail."

I have by my side, and intended to refer you to, did time permit, several cases of the execution of innocent men. You will find them in O'Sullivan's Report, page 117, and in the following pages, where the proof is given of one hundred innocent persons in England who had been hung for capital offences. I have in my hand a letter from a gentleman in California, giving a long and most interesting account of a conviction for murder there, quite recently, where the party convicted came to the verge of execution, when it was at last discovered that he had been convicted by a mistake of personal identity—very similar to that which occurred, you will remember, in the Webster trial, in this city. Gentlemen, how many persons have been convicted of murder on evidence not so strong—not so strong—as the evidence introduced in that case to show that Dr. Parkman was alive when he was really dead! Seven persons, men and women, testified to having seen him in the streets of Boston, after, as we now know, the fact was impossible. Gentlemen, many a man has been convicted and sent to the gallows, upon testimony of identity not so strong as that. It happened, in that case, there was at hand proof that Dr. Parkman was dead which outweighed the testimony that he was living. And many have been the cases—to the knowledge of all observing minds—in which there has been testimony to the guilt of persons accused of all manner of crimes, feebler than this, which uncontradicted, amounted to damning proof of guilt. We know of many escapes from conviction—they continually occur—only by the overthrow of testimony, by overwhelming counter-proofs. Of those who fail in this battle of life and death—deserving a better fate—fail by mysterious Providence and disappear—we can know but little, most are forgotten. Now and then one such finds a friend to protect his memory, and every single case of posthumous vindication only suggests the question no man can answer: How many are they who sleep in oblivion—the victims of what their fellow men called justice?

You will find, gentlemen, in Mr. Spear's book, pages 76 to 87, several more illustrations of the danger of trusting to fallible minds the solemn decision of the life or death of a fellow-creature. I need not detail these cases; you will find them yourselves. One more circumstance only let me advert to. Formerly, the executioner stood boldly up and seized the bloody axe in his red right hand. Now, nobody does the fatal deed,—or nobody seems to do it. Now, somebody goes into the jail and binds the victim; two or three others take him between them, and they march to the scaffold; somebody else adjusts the fatal machinery; somebody else puts him in the position in which the act may be consummated; and at last, so far have we refined, that no man's hand perpetrates the last act which results in a felon's death. No, sir; the Sheriff leaves him as he stands there, and by a cunning device, the machinery is so adjusted, that his foot, in the natural course of his retreat, may touch a fatal spring. Every individual does as little as he can; and at last, it seems as if nobody hangs the victim. We skulk all round; and dare not face the awful responsibility in its dark and abhorrent form.

The idea of punishment by death is dying out it is vanishing away. We have begun to hide it from our eyes—and to seclude the gallows as a polluted thing. And we only ask, that, with an honest purpose to seek a better way, this Committee would direct the Legislature to a statute which shall give to Massachusetts the opportunity of an experiment which the history of all similar experiments in penal reform justifies us in believing will secure the great ends of public justice; which will banish from our legislation a relic of barbarian times, remove an obstacle in the way of the highest civilization, and rejoice the hearts of all men.