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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
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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 turnedwhen； 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
surprisedand 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 themwhen
many additional circumstances have fastened the imputation upon the
otherand 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 lawyet 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
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dissolute and undutiful； and anxious for the death of the father； and
succession to the family propertywhen 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 itand 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 fieldan old enmity existing between themthe 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 manand 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 spoton 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 descriptionthe master；
who confessed the b