There is another and a stronger reason still, why a criminal judge is a bad witness in favour of the punishment of Death. He is a chief actor in the terrible drama of a trial, where the life or death of a fellow creature is at issue. No one who has seen such a trial can fail to know, or can ever forget, its intense interest. I care not how painful this interest is to the good, wise judge upon the bench. I admit its painful nature, and the judge's goodness and wisdom to the fullest extent—but I submit that his prominent share in the excitement of such a trial, and the dread mystery involved, has a tendency to bewilder and confuse the judge upon the general subject of that penalty. I know the solemn pause before the verdict, the bush and stifling of the fever in the court, the solitary figure brought back to the bar, and standing there, observed of all the outstretched heads and gleaming eyes, to be next minute stricken dead as one may say, among them. I know the thrill that goes round when the black cap is put on, and how there will be shrieks among the women, and a taking out of some one in a swoon; and, when the judge's faltering voice delivers sentence, how awfully the prisoner and he confront each other; two mere men, destined one day, however far removed from one another at this time, to stand alike as suppliants at the bar of God. I know all this, I can imagine what the office of the judge costs in this execution of it; but I say that in these strong sensations he is lost, and is unable to abstract the penalty as a preventive or example, from an experience of it, and from associations surrounding it, which are and can be, only his, and his alone.
Not to contend that there is no amount of wig or ermine that can change the nature of the man inside; not to say that the nature of a judge may be, like the dyer's hand, subdued to what it works in, and may become too used to this punishment of death to consider it quite dispassionately; not to say that it may possibly be inconsistent to have, deciding as calm authorities in favour of death, judges who have been constantly sentencing to death;—I contend that for the reasons I have stated alone, a judge, and especially a criminal judge, is a bad witness for the punishment but an excellent witness against it, inasmuch as in the latter case his conviction of its inutility has been so strong and paramount as utterly to beat down and conquer these adverse incidents. I have no scruple in stating this position, because, for anything I know, the majority of excellent judges now on the bench may have overcome them, and may be opposed to the punishment of Death under any circumstances.
I mentioned that I would devote a portion of this letter to a few prominent illustrations of each head of objection to the punishment of Death. Those on record are so very numerous that selection is extremely difficult; but in reference to the possibility of mistake, and the impossibility of reparation, one case is as good (I should rather say as bad) as a hundred; and if there were none but Eliza Fenning's, that would be sufficient. Nay, if there were none at all, it would be enough to sustain this objection, that men of finite and limited judgment do inflict, on testimony which admits of doubt, an infinite and irreparable punishment. But there are on record numerous instances of mistake; many of them very generally known and immediately recognisable in the following summary, which I copy from the New York Report already referred to.
"There have been cases in which groans have been heard in the apartment of the crime, which have attracted the steps of those on whose testimony the case has turned—when, on proceeding to the spot, they have found a man bending over the murdered body, a lantern in the left hand, and the knife yet dripping with the warm current in the blood-stained right, with horror-stricken countenance, and lips which, in the presence of the dead, seem to refuse to deny the crime in the very act of which he is thus surprised—and yet the man has been, many years after, when his memory alone could be benefited by the discovery, ascertained not to have been the real murderer! There have been cases in which, in a house in which were two persons alone, a murder has been committed on one of them—when many additional circumstances have fastened the imputation upon the other—and when, all apparent modes of access from without, being closed inward, the demonstration has seemed complete of the guilt for which that other has suffered the doom of the law—yet suffered innocently! There have been cases in which a father has been found murdered in an outhouse, the only person at home being a son, sworn by a sister to have been dissolute and undutiful, and anxious for the death of the father, and succession to the family property—when the track of his shoes in the snow is found from the house to the spot of the murder, and the hammer with which it was committed (known as his own), found, on a search, in the corner of one of his private drawers, with the bloody evidence of the deed only imperfectly effaced from it—and yet the son has been innocent!—the sister, years after, on her death-bed, confessing herself the fratricide as well as the parricide. There have been cases in which men have been hung on the most positive testimony to identity (aided by many suspicious circumstances), by persons familiar with their appearance, which have afterwards proved grievous mistakes, growing out of remarkable personal resemblance. There have been cases in which two men have been seen fighting in a field—an old enmity existing between them—the one found dead, killed by a stab from a pitchfork known as belonging to the other, and which that other had been carrying, the pitch-fork lying by the side of the murdered man—and yet its owner has been afterwards found not to have been the author of the murder of which it had been the instrument, the true murderer sitting on the jury that tried him. There have been cases in which an innkeeper has been charged by one of his servants with the murder of a traveller, the servant deposing to having seen his master on the stranger's bed, strangling him, and afterwards rifling his pockets—another servant deposing that she saw him come down at that time at a very early hour in the morning, steal into the garden, take gold from his pocket, and carefully wrapping it up bury it in a designated spot—on the search of which the ground is found loose and freshly dug, and a sum of thirty pounds in gold found buried according to the description—the master, who confessed the burying of the money, with many evidences of guilt in his hesitation and confusion, has been hung of course, and proved innocent only too late. There have been cases in which a traveller has been robbed on the highway of twenty guineas, which he had taken the precaution to mark—one of these is found to have been paid away or changed by one of the servants of the inn which the traveller reaches the same evening—the servant is about the height of the robber, who had been cloaked and disguised—his master deposes to his having been recently unaccountably extravagant and flush of gold—and on his trunk being searched the other nineteen marked guineas and the traveller's purse are found there, the servant being asleep at the time, half-drunk—he is of course convicted and hung, for the crime of which his master was the author! There have been cases in which a father and daughter have been overheard in violent dispute—the words "barbarity", "cruelly", and "death", being heard frequently to proceed from the latter—the former goes out locking the door behind him—groans are overheard, and the words, "cruel father, thou art the cause of my death!"—on the room being opened she is found on the point of death from a wound in her side, and near her the knife with which it had been inflicted—and on being questioned as to her owing her death to her father, her last motion before expiring is an expression of assent— the father, on returning to the room, exhibits the usual evidences of guilt—he, too, is of course hung—and it is not till nearly a year afterwards that, on the discovery of conclusive evidence that it was a suicide, the vain reparation is made, to his memory by the public authorities, of—waving a pair of colours over his grave in token of the recognition of his innocence."