Dealings with the Dead, Volume 1 (of 2)

by Lucius M. Sargent

No. LIII.

Our society, whose object is nothing less than the entire and unqualified abolition of capital punishment, have derived the greatest advantage, from an ample recognition of the rights of women—not only by a free participation of counsel with the softer sex, after the example of certain other societies, the value of whose services can never be understood, by the present generation; but by assigning equally to both sexes, all offices of honor and trust. We have adhered to this principle, with the most perfect impartiality, in the composition of our committees. Thus, our committee, for visiting the condemned, consists of the Rev. Mr. Puzzlepot, and the five Miss Frizzles—the committee on public excitement, prior to an execution, consists of Dr. Omnibus, Squire Farrago, Mrs. Pickett, and her daughters, the Misses Patience and Hopestill Pickett. In like proportion, all our committees are constructed.

We think proper, in this public manner, to express our warmest acknowledgments to Mrs. Negoose, Madam Moody, and Squire Bodkin, for their able report, on the iniquity of presumptive or circumstantial evidence. The notes, appended to this report, are invaluable—their authorship cannot be mistaken—every individual, acquainted with the peculiar style of the gifted author, will recognize the powerful hand of the justly celebrated Mrs. Folsom.

This committee are of opinion, that, under the show or pretence of punishing murder, our legal tribunals are constantly committing it. They presume, forsooth, that is, they guess, that the prisoner is guilty, and therefore take the awful responsibility of hanging him by the neck, till he is dead! This, says Mrs. Negoose, is presumption with a vengeance.

The committee refer to the statement of Sir Matthew Hale, as cited by Blackstone, iv. 358-9, that he had known two cases, in which, after the accused had been hung for murder, the individuals, supposed to have been murdered, had re-appeared, in full life. Upon this, the committee reason, with irresistible force and acumen. How many judges, say they, there have been, since the world began, we know not. Two cases, in which innocent persons were executed, on presumptive or circumstantial evidence, are proved to have occurred, within the knowledge of one judge. It is reasonable, say the committee, to conclude that, at a moderate calculation, three cases more, remaining undiscovered, occurred within the jurisdiction of that one judge. Now, we have nothing to do, but to ascertain the number of judges, who have ever existed, and then multiply that number by five; and thus, say the committee, “by the unerring force of figures, which cannot lie, we have the sanguinary result.” “Talk not of ermine,” exclaims Mrs. Negoose, the chairwoman of the committee, in a gush of scorching eloquence, “these blood-stained judges, gory with the blood of the innocents, let them be stripped of their ermine, and robed with the skins of wild cats and hyenas.”

It has excited the highest indignation in the society, that Sir Matthew Hale, who has ever borne the name of a humane and upright judge, should have continued to decide questions, involving life, upon circumstantial evidence, after the cases, referred to above, had come to his knowledge, and in the very same manner, that he had been accustomed to decide them, in earlier times. Mrs. Moody openly expresses her opinion, that he was no better than he should be; and Squire Bodkin only wishes, that he could have had half an hour’s conversation with Sir Matthew. The only effect, produced upon the mind of Sir Matthew Hale, by these painful discoveries, seems to have been to call forth an expression of opinion, that circumstantial evidence should be received with caution; and that, in trials for murder and manslaughter, no person should ever be convicted, till the body of the individual, alleged to have been killed, had been discovered.

An opinion, often repeated, as having been expressed by Chief Justice Dana, after the conviction of Fairbanks, for the murder of Miss Fales, at Dedham, in 1801, has frequently been a topic of conversation, among the members of our society, and Mrs. Negoose is satisfied, that if Chief Justice Dana expressed any such opinion, he must have been out of his head. Fairbanks was convicted and hung, on circumstantial evidence entirely. The concatenation, or linking together, of circumstances, in that remarkable case, was very extraordinary.

The sympathy for Fairbanks was very great, and began to exhibit itself, almost as soon, as the spirit had fled from the body of his victim. After his condemnation, his zealous admirers, for such they seemed to be, assisted him successfully, to break jail. He was retaken, on the borders of Lake Champlain; and, as the jail in Boston was of better proof, than the jail in Dedham, he was committed to the former. The genealogy of Fairbanks was shrouded in a sort of mystery. Ladies, of respectable standing, visited him, in his cell, and one, in particular, of some literary celebrity, in our days of small things, was supposed to have supplied him with a knife, of rather expensive workmanship, for the purpose of self-destruction. This knife was found upon his person, after her visits. There was no positive proof, to establish the guilt of Jason Fairbanks—not a tittle. Yet a merciless jury found him guilty, by a process, which our society considers mere guess work,—and after the execution, Judge Dana is reported to have said, that he believed Fairbanks murdered Miss Fales, more certainly, from the circumstantial evidence, produced at the trial, than if he had had the testimony of his own eyesight, at a short distance, in a dusky day. What sort of a Judge is this? cried Mrs. Negoose—sure enough, exclaimed Madam Moody.

I have no objection to give our opponents all the advantage, which they can possibly derive from a full and fair exposition of their arguments. When a witness, for example, swears, directly and unhesitatingly, that he saw the prisoner inflict a wound, with a deadly weapon, upon another person—that he saw that other person instantly fall, and die shortly after, this is positive evidence of something. Yet the act may be murder, or it may be manslaughter, or it may be justifiable homicide. Murder consists of three parts, the malice prepense, the blow inflicted or means employed, and the death ensuing, within a time prescribed by law. There can be no murder, if either of these parts be absent. Now, it is contended, by such as deem it lawful and right to hang the unfortunate, misguided, upon circumstantial evidence, that, however positive the evidence may be, upon the two latter points—the act done and the death ensuing—it is necessary, from the nature of things, in every case to depend on circumstantial evidence, to prove the malice prepense.