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never be so established in England but that it must needs bring the weal…
public into great jeopardy and hazard'； and as he was thus saying； he
shaked his head； and made a wry mouth； and so he held his peace〃。 Thus
the Recorder of London； in 1811； objected to 〃the capital part being taken
off〃 from the offence of picking pockets。 Thus the Lord Chancellor； in
1813； objected to the removal of the penalty of death from the offence of
stealing to the amount of five shillings from a shop。 Thus； Lord
Ellenborough； in 1820； anticipated the worst effects from there being no
punishment of death for stealing five shillings worth of wet linen from a
bleaching ground。 Thus the Solicitor General； in 1830； advocated the
punishment of death for forgery； and 〃the satisfaction of thinking〃 in the
teeth of mountains of evidence from bankers and other injured parties （one
thousand bankers alone！） 〃that he was deterring persons from the
commission of crime； by the severity of the law〃。 Thus； Mr。 Justice
Coleridge delivered his charge at Hertford in 1845。 Thus there were in
the criminal code of England； in 1790； one hundred and sixty crimes
punishable with death。 Thus the lawyer has said； again and again； in his
generation； that any change in such a state of things 〃must needs bring the
weal…public into jeopardy and hazard〃。 And thus he has； all through the
dismal history； 〃shaked his head； and made a wry mouth； and held his
peace〃。 Excepta glorious exception！when such lawyers as Bacon；
More； Blackstone； Romilly； andlet us ever gratefully rememberin later
times Mr。 Basil Montagu； have striven； each in his day； within the utmost
limits of the endurance of the mistaken feeling of the people or the
legislature of the time； to champion and maintain the truth。
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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 extentbut 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
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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；