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consoling reflection mitigates the misery of that moment. He leaves unmerited infamy to his children; a name stamped with dishonor to their surviving parent, and bows down the gray heads of his own with sorrow to the grave. As he walks from his dungeon, he sees the thousands who have come to gaze on his last agony: he mounts the fatal tree, and a life of innocence is closed by a death of dishonor. This is no picture of the imagination. Would to God it were! Would to God that, if death must be inflicted, some sure means might be discovered of making it fall upon the guilty. These things have happened. These legal murders have been committed! and who were the primary causes of the crime? Who authorized a punishment which, once inflicted, could never be remitted to the innocent? Who tied the cord, or let fall the axe upon the guiltless head? Not the executioner, the vile instrument who is hired to do the work of death,-not the jury who convict, or the judge who condemns,-not the law which sanctions these errors; but the legislators who made the law,—those who, having the power, did not repeal it. These are the persons responsible to their country, their consciences, and their God. These horrors not only have happened, but they must be repeated: the same causes will produce the same effects. The innocent have suffered the death of the guilty the innocent will suffer. We know it. The horrible truth stares us in the face. We dare not deny, and cannot evade it. A word, while it saves the innocent, will secure the punishment of the guilty; and shall we hesitate to pronounce it? Shall we content ourselves with our own imagined exemption from this fate, and shut our ears to the cries of justice and humanity? Shall "sensibility (as has been finely observed) sleep in the lap of luxury," and not awake at the voice of wretchedness? I urge this point with more earnestness, because I have witnessed more than one condemnation under false instructions of law, or perjured, or mistaken testimony:-sentences that would now have been reversed, if the unfortunate sufferers were within the reach of mercy. I have seen, in the gloom and silence of the dungeon, the deep concentrated expression of indignation which contended with grief; have heard the earnest asseverations of innocence, made in tones which no art could imitate; and listened with awe to the dreadful adjuration, poured forth by one of these victims, with an energy and solemnity that seemed superhuman, summoning his false accuser and his mistaken judge to meet him before the throne of God. Such an appeal to the high tribunal which never errs, and before which he who made it was in a few hours to appear, was calculated to create a belief of his innocence that belief was changed into certainty. The perjury of the witness was discovered, and he fled from the infamy that awaited him; but it was too late for any other effect,

*Eden. Principles of Penal Law.

than to add one more example to the many that preceded it of the danger, and I may add im piety, of using this attribute of the divine power, without the infallibility that can alone properly direct it. And this objection alone, did none of the other cogent reasons against capital punment exist,-this alone would make me hail the decree for its abolition as an event, so honorable to my country, and so consoling to humanity, as to be cheaply purchased by the labor of a life.

I cannot quit this part of the subject without submitting to the general assembly the opinion of one whose authority would justify an experiment even more hazardous than this, but whose arguments are as convincing as his name is respectable. They are not the opinions of one whom the cant, which is used to cover the ignorance of the day, would call a theorist, but of a man whose whole life was spent in the useful and honorable functions of the highest magistracy, whose name is always mentioned with reverence, and whose doctrines are quoted as authority, wherever the true principles of legal knowledge are regarded. Hear the venerable D'Aguesseau:

"Who would believe that a first impression may sometimes decide the question of life and death? A fatal mass of circumstances, which seem as if fate had collected them together, for the ruin of an unfortunate wretch,-a crowd of mute witnesses, (and from that character more dangerous,)-depose against innocence: they prejudice the judge; his indignation is roused; his zeal contributes to seduce him. Losing the character of the judge in that of the accuser, he looks only to that which is evidence of guilt, and he sacrifices to his own reasonings the man whom he would have saved had he listened only to the proofs of the law. An unforeseen event sometimes shows that innocence has sunk under the weight of conjectures, and falsifies the conclusions which circumstances had induced the magistrate to draw. Truth lifts up the veil with which probability had enveloped her; but she appears too late! The blood of the innocent cries aloud for vengeance against the prejudice of his judge; and the magistrate passes the rest of his life deploring a misfortune which his REPENTANCE CANNOT REPAIR."*

The earnestness for this reform is sometimes reproached to its advocates as proceeding from a childish fear, that magnifies the apprehension of that which we know is appointed to us all. Not so. The value of life is not overrated in the argument. There are occasions in which the risk of its loss must be incurred; in which the certainty of death must be encountered with firmness and composure. These occasions are presented by patriotism, in defence of our country and our country's rights,-by benevo lence, in the rescue of another from danger,by religion, whenever persecution offers the

D'Aguesseau, 16 Mercuriale.

martyr's crown to the faithful; and it is not known, or believed, that those who propose to abolish death as a punishment either fear it as a natural event, or shun its encounter when required by duty, more than those who think it ought to be retained. He who preserved the life of a Roman citizen was entitled to a more honorable recompense than the daring soldier who ventured his own, by first mounting the breach. The civic was preferred to the mural crown. The Romans, during the best period of their history, reduced this abolition to prac- | tice. "Far," said their great orator, endeavoring, in a corrupted age, to restore the ancient feeling on the subject," far from us be the punishment of death-its ministers-its instruments. Remove them, not only from their actual operation on our bodies, but banish them from our eyes, our ears, our thoughts; for, not only the executions, but the apprehension, the existence, the very mention of these things, is disgraceful to a freeman and a Roman citizen."* Yet the Romans were not very remarkable for

* Carnifex et abductio capitis, et nomen ipsum crucis absit, non modo a corpore civium Romanorum sed etiam a cogitatione, oculis, auribus-harum etiam omnium rerum non lum eventus atque perpessio, sed etiam conditio, expectatio, mentio ipsa denique, indigna cive Romano, atque homine libero est.-Cicero pro Rabirio.

a pusillanimous fear of death. In the age of which I speak, they did not want the excitement of capital punishment to induce them to die for their country. On the contrary, it might, perhaps, be plausibly argued, that the servile disposition, which disgraced the latter ages of the republic, was in some measure caused by the change, which made the sacrifice of life the expiation for crime, instead of the consummation and proof of patriotic devotion.

Conscious of having been guilty of much repetition, and certain that I have weakened, by my version of them, arguments much better used by others, I am yet fearful of having omitted many things that might have an effect in convincing any one of those to whom this report is addressed. The firm religious belief I have of the truth of the doctrine I advance, contrasted with the sense of my incapacity to enforce it upon others, must have produced obscurity where the interests of humanity require there should be light, and confusion where the performance of my great duty demands order. But the truth will appear in spite of these obstacles. From the midst of the cloud, with which human imperfections has surrounded her, her voice, like that of the Almighty from the Mount, will be heard reiterating to nations, as well as to individuals, the great command, "THOU SHALT NOT KILL."

SAMUEL DEXTER.

SAMUEL Dexter was a native of Boston, Massachusetts, where he was born in the year 1761. His father, Samuel senior, a descendant of Richard Dexter, who emigrated from England to America, a short time after the landing at Plymouth, was an active supporter of the patriotic cause, prior to the Revolution, and for his eminent services was several times elected by the colonial House of Representatives to the Council; and for the same reasons as often rejected by the royal governor. Finally, however, he was permitted to take his scat; but, in 1774 was again negatived, in company with Bowdoin and others, by the "express commands of his Majesty." It is recorded that he took part in the preparation of the celebrated answers to the Governor's speeches, and the various state papers of that period; which have so long been the theme of admiration for their eloquence and their firm and bold tone of remonstrance against the oppressive measures of the British ministry.* "Soon after the commencement of the revolutionary war," says Doctor Holmes, "he removed, with his family, to Woodstock, Connecticut. He had a large library, which attracted much attention, at the time of its removal, and he was greatly devoted to the use of it, in his retirement, to the close of his life. He was a gentleman of a highly respectable character, possessed a handsome estate, and enjoyed far beyond most literary men, in our country, otium cum dignitate. The latter part of his life was spent in the investigation of the doctrines of theology; which resulted in the establishment, by his will, of a professorship of Sacred Literature in Harvard University. He died, at Mendon, in Massachusetts, on the 10th of June, 1810. Hannah, the wife of this excellent man, and the mother of the subject of this sketch, was the daughter Andrew and Mary Sigourney, and a descendant of André Sigourney, one of those Huguenots who fled from France to America on the revocation of the edict of Nantes. She is described as "a respectable lady, of dark complexion, with characteristic French features and pronunciation;" peculiarities which her distinguished son inherited. Of her, as well as of his honored father, that son always spoke with reverenco and affection.

At the age of sixteen years Samuel Dexter, the junior, entered Harvard University, and in 1781, graduated with the highest honors of his class. During his junior year he delivered a poem on the Progress of Science, "which was at that time," says Judge Story, "received with great applause, and is still (1816) considered as highly creditable to his taste and judgment." § After leaving college he studied law in the office of the Honorable Levi Lincoln, an eminent counsellor of that period, and subsequently Lieutenant Governor of Massachusetts. In due time

Wheaton's Life of William Pinkney, page 141.

+ Appendix to Doctor Holmes's Memoir of the French Protestants who settled at Oxford, Massachusetts, A. D. 1686, &c., in the Massachusetts Historical Collections. Third series, vol. 2, page 79.

Mr. Dexter was, at one time, engaged in the defence of some foreign sailors, who were on trial in Rhode Island, for piracy. During the trial he had occasion to confer with them repeatedly; and a Quaker, to whom he was personally unknown, observed to a friend, when Mr. Dexter commenced his argument-"How well he speaketh our language!" mistaking him for one of the foreigners, arguing in behalf of himself and his associates.-Sketches of Samuel Dexter by Mr. Sargent.

Sketch of the Life and Character of Samuel Dexter, by Judge Story. Miscellaneous Writings, page 782.

he commenced practice, his reputation increased, and "he soon found himself surrounded with clients." He now became a member of the legislature of his native State; soon after was elected to the lower House of the Congress of the United States, and from thence was elevated to a seat in the Senate. In both branches of Congress his course was honorable and distinguished. "His clear and forcible argumentation, his earnest and affecting admonitions, and his intrepid and original development of principles and measures, gave him a weight of authority, which it was difficult to resist. Perhaps no man was ever heard by his political opponents with more profound and unaffected respect."

In the spring of 1800, he was appointed by President Adams, Secretary of War, and in the following winter, on the resignation of Oliver Wolcott, was transferred to the Treasury Department. He discharged the duties of these offices with his characteristic energy and ability. Before the close of Mr. Adams' administration he was offered a foreign mission. This honor he declined.

Mr. Dexter continued at the head of the Treasury department during a greater part of the first year of Mr. Jefferson's presidency. Mr. Gallatin succeeded him on the twenty-sixth of January, 1802. Soon after retiring he resumed the duties of his profession, and was immediately engaged in causes brought before the highest courts of his native State and of the country. It was in this position that his splendid powers were fully developed. "In no situation," said Judge Story, "have the admirable talents of Mr. Dexter appeared with more unclouded lustre, than in his attendance on the Supreme Court, at Washington. For several years, he passed the winters there, under engagements in many of the most important causes. Rarely did he speak without attracting an audience composed of the taste, the beauty, the wit and the learning, that adorned the city; and never was he heard without instruction and delight. On some occasions, involuntary tears from the whole audience have testified the touching power of his eloquence and pathos. On others, a profound and breathless silence expressed, more forcibly than any human language, the riveted attention of an hundred minds:-I well remember," continues the same able authority, "with what appropriate felicity he undertook, in one cause, to analyze the sources of patriotism. *** No one who heard him describe the influence of local scenery upon the human heart, but felt his soul dissolve within him. I can recall but imperfectly a single passage; and, stript of its natural connection, it affords but a glimmering of its original bright'We love not our country,' said the orator, 'from a blind and unmeaning attachment, simply because it is the place of our birth. It is the scene of our earliest joys and sorrows. Every spot has become consecrated by some youthful sport, some tender friendship, some endearing affection, some reverential feeling. It is associated with all our moral habits, our principles, and our virtues. The very sod seems almost a part of ourselves, for there are entombed the bones of our ancestors. Even the dark valley of the shadow of death is not without its consolations, for we pass it in company with our friends.'"

ness.

It is much to be regretted that the forensic efforts of Mr. Dexter have not been preserved. But one of his arguments is extant, and that is spoken of by his most recent and most competent biographer,* as "an abridgment," and cannot, probably, however able, be classed in the very foremost rank of his efforts. His argument on the unconstitutionality of the embargo laws, is considered to be one of his greatest successes. To the profound legal knowledge, the able statesmanship, and the tremendous eloquence he displayed on this occasion, Mr. Webster, in the memorable debate on Foot's resolution, gives unqualified and honorable praise.

Mr. Dexter's style of speaking was slow and deliberate. Generally, he stood still and erect, using no gestures except, occasionally, in the extension of his right arm towards the bar, with his hand firmly clenched. "When growing earnest, he often inclined his body slightly forward, and closing the palms of his hands, moved them up and down repeatedly, as though he were about to dive into the jury box; and, at such times, a dignified motion of the head gave emphasis to the argument. When deeply engaged in any important cause, a slight tremulation of the fingers

Honorable Lucius Manlius Sargent, of Massachusetts, whose sketches of Mr. Dexter, over the signature of "Sigma" appeared in the Boston Transcript in 1856-1857. These valuable papers have since been issued in a volume.

was frequently perceptible:-He was in the practice of walking much in his office, with his hands behind his back, and in perfect silence. He had a very common habit of sitting for an hour or more with his eyes closed, his chair canted backward, his feet resting against the wall, or the mantel, and while in this position, gently stroking his nose with his thumb and finger. On such occasions, no one disturbed him, without good and sufficient reasons." Another of his peculiarities is noted by Mr. Sullivan, in his interesting Letters on Public Characters. "His precious moments were of the early morning, when in bed. He awoke oftentimes before dawn, and would remain in bed, producing a gentle motion of the body by shaking his foot, while his mind was occupied in severe contemplation." His manhood may be considered to have been one long process of meditation, reluctantly interrupted by business and sleep.

Mr. Dexter was a strenuous advocate of temperance, and was one of the originators of the first society formed for the promotion of that object, and, on its organization, its first president. This was the Massachusetts State Temperance Society, established about 1813. His was the remark: "Give me the money paid for the support of drunken paupers in the United States, and I will pay the expenses of the Federal and of every State government in the Union, and in a few years become as rich, with the surplus, as the Nabob of Arcot." He had consented to deliver the opening address of the Massachusetts Society, but was prevented from carrying out his intentions in consequence of being detained at Washington.*

In 1815, President Madison tendered him the mission to Spain, but, from an unwillingness to leave his native country, he declined the proffered honor. During the winter of this and ti e following year, he was, as usual, engaged in the laborious duties of his profession at Washington. He was once compelled to relinquish his labors for a time on account of illness; but before he returned to the North in the spring of 1816, he had regained his accustomed health and vigor. On the last day of April of this year, he arrived at Athens, New York, whither he had gone with his family, to attend the wedding of his oldest son. At the time of his arrival he was somewhat indisposed, and continued to fail until his death, which occurred on the morning of the fourth of May following.

The best memorials of this remarkable man, are to be found in the recent sketches by Mr. Sargent, to whom the historical and literary students of America are deeply indebted for the many and valuable facts he has garnered and preserved in the several occasional products of his pen. In the various discourses delivered by eminent jurists of the United States, among whom are Justices Story and Thacher, and Mr. Bliss and Mr. Livingston, will also be found earnest tributes to the eloquence and ability of Mr. Dexter.

ARGUMENT IN SELFRIDGE'S TRIAL.

The following argument was delivered by Mr. | close of the defence of this important and interDexter, in the Supreme Court of Massachusetts, esting cause. In doing it, though I feel perat the trial of Thomas O. Selfridge, attorney-at- fectly satisfied that you are men of pure minds, law, for killing Charles Austin, on the public Exchange, in Boston, on the fourth of August, 1806.t

MAY IT PLEASE YOUR HONOR, AND YOU, GENTLEMEN OF THE JURY: It is my duty to submit to your consideration some observations in the

yet I reflect with anxiety, that no exertion or zeal on the part of the defendant's counsel can possibly insure justice, unless you likewise perform your duty. Do not suppose that I mean to suggest the least suspicion with respect to your principles or motives. I know you to have been selected in a manner most likely to obtain impartial justice; and doubtless you have

Familiar Letters on Public Characters by William Sul- condensed statement of his defence, to the detailed draft, as livan, page

403.

This argument was first printed in the report of this trial, in 1807, with the following note. "The Argument of Mr. Dexter is published from a report of the same as furuished by himself. Mr. D. preferred this mode of giving a

prepared by one of the stenographers. It is much compressed in size from the original argument, but although a compendium, will be found to contain all the prominent and essential points, maintained by him in this important trial."

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