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.