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CASE OF LAWRENCE M'CARTHY.

STATE OF NEW YORK, EXECUTIVE DEPARTMENT,

Albany, July 29, 1839.

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DEAR SIR: I have received your communication of yesterday, and have, I trust, bestowed upon it all that consideration which it demands, as the last appeal for mercy in favor of a man whose life, in one sense, was in my hands. It is a fearful responsibility. Yet it is, on that account, to be discharged with firmness and judgment. I assure you, my dear sir-and if the communication shall not arrive too late to be read to the unhappy man whose last hope it must extinguish, I assure him-that in no other way could his excuse for his murderous deed have been brought so favorably to my notice, or to that of the justices of the supreme court, as by his confession made in the fear of God, and communicated in your unsophisticated and impassioned

letter.

I moreover assure both you and him, that while I do not intend to assert a belief unnecessary to be adopted, and injurious to the prisoner's wife and her murdered parent, I have at no time suffered a doubt of the truth of the prisoner's confession to intrude upon my mind, while I was weighing the provocation, as an excuse for the prisoner's crime. For that purpose, I have assumed it to be true; and if, admitting it to be true, I had been advised, or had myself believed, that it presented sufficient ground for mitigation of the prisoner's punishment, I should, without any reference to public opinion, have granted a respite of the sentence, to obtain such evidence of the truth thus assumed, as would have justified a commutation of the punishment. But such has not been the fact.

The prisoner had been married to the daughter of the deceased. The evidence is abundant that, very soon after that connection took place, he became inflamed with hatred against the parent VOL. II.-40

of his wife. After the lapse of weeks, and in the absence of every other member of the family, he committed the murder, alone, and with cool deliberation. He concealed his victim with the greatest care, and framed and persisted, until upon his trial, in falsehoods to account for his sudden and mysterious disappearance. What is his excuse? If his suspicions be conceded to be just, that the deceased had committed incest with his daughter, the prisoner's wife. If this were true, and the violence had been perpetrated when the foul deed was committed, the act might have been excused. But the prisoner deferred his revenge until much time had elapsed for reflection and for consideration; and none but a temper too desperate to be tolerated, not to say encouraged, would have, even with such a provocation, cherished its resentment while it matured into the full purpose of felonious murder. It is the law of the land that the prisoner's crime is punishable with death. It is not for me to abrogate or change this law. On the contrary, I have come under solemn obligations, to take care that it is fulfilled. I could indeed pardon the offender, with or without a condition. But I could not do so without establishing a precedent for all similar offences. Shall I, then, establish the law to be, that cold, calculating revenge justifies or excuses murder? To this conclusion I must come, before I could arrest the arm of justice. It remains for me only to say, that the supplication for mercy can not prevail.

I hasten this reply, that it may, if possible, remove any groundless hope the prisoner may indulge. And I hope that he will prepare, with the aid of your pious ministrations and the special consolations of the Holy Spirit, for that dread tribunal, where, like him, we must all appear as suppliants for mercy.

I am very sincerely, my dear sir, your friend and obedient

servant.

TO THE REVEREND MICHAEL GILBRIDE

THE CASE OF WILLIAM L. M'KENZIE.

STATE OF NEW YORK, EXECUTIVE DEPARTMENT,
Albany, January 27, 1840.

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DEAR SIR: I have received a petition from William Lyon M'Kenzie, Esq., a prisoner in your custody under a conviction. in the circuit court of the United States. The petitioner sets forth that he is deprived of the privilege of exercise, and suffers other inconveniences, as a prisoner, and he appeals to me to meliorate his condition. It is my opinion that the sentence under which he is imprisoned, is subject to the absolute control of the president of the United States, not only in relation to the power of pardon, but to any melioration of his condition as a prisoner. And I am certain that no power is reposed in me in such cases. Nevertheless, regarding the prisoner's offence as a political one, I am of opinion that a distinction ought to be made as far as possible between his treatment and that of criminals convicted of crimes, involving moral turpitude. I know that the constitution of our jails, and the system of government prescribed in them, do not admit of carrying this distinction to the extent which humanity would dictate. It must rest chiefly in the kindness, humanity, and discretion of the sheriff and jailer. I commend the prisoner's condition to your careful attention, desiring that it may be made as comfortable as possible, not doubting that the sentiments I have expressed would be approved by the president of the United States, and your conduct in accordance with them would receive his sanction.

I am, very respectfully, your obedient servant.

TO THE SHERIFF, &c.

THE CASE OF JABEZ FULLER.

STATE OF NEW YORK, EXECUTIVE DEPARTMENT,
Albany, April 30, 1840.

JABEZ FULLER was convicted at the last oyer and terminer, in Westchester county, of the murder of Sally Masten, and was sentenced to be executed on the 22d of May next. An application has been made to me, to commute his punishment to that of imprisonment for life in the stateprison.

The pardoning power is vested in the executive, for the purpose not of enabling that department to dispense with the laws, but to secure the more effectual execution of them. It does not rest with the executive to question the wisdom of the law which denounces capital punishment against the crime of wilful murder. It is obvious that mitigation of such punishment, when adjudged by the courts, would be inconsistent with the policy of the law, unless in cases of doubtful guilt, or of circumstances peculiarly commending the convict to executive clemency.

The prisoner had a fair and impartial trial, and the verdict of the jury was approved by the court. I have submitted the proceedings to three of my legal advisers: his honor the chancellor, the honorable Samuel Nelson, chief-justice of the supreme court, and the honorable Greene C. Bronson, a justice of the same court. They have given me their opinion, that the conviction was regular and upon sufficient evidence. A more brutal murder than that exhibited in the testimony before me, has seldom been committed in this state. The prisoner had lived for many years in unlawful intercourse with the deceased, knowing her to be the wife of another. Degraded as she was by this connection, and in her general conduct, she was, nevertheless, a defenceless woman, whom the prisoner had made dependent upon him for protection. The family in which they lived, were alarmed on a Sunday morning, in May last, by the cries of the deceased, and

the prisoner was found endeavoring to strangle her in bed. The prisoner was separated from her, but soon renewed his assault. Having provoked her into an altercation, he followed her intoanother room, and while she was sitting down he kicked her in the face. The prisoner walked out. The deceased prepared breakfast, and went to call him. He seized her, threw her upon the ground, kicked her, and stamped upon her with such violence as to extinguish the sight of one eye, break her bones, and deprive her of speech. She died within a few days afterward, of the injuries thus received. During all this brutal violence, his language evinced a murderous intent. When it was shown to him that he had rendered one of her eyes sightless, he swore he would stamp the other eye out of her head. He threatened that he would break every bone in her body, and that he would be the death of her. While the bystanders were assisting her into the house, the prisoner, unmoved by the pain he had inflicted, exclaimed that he wished she might die, and he hoped she would die. When the victim of his brutality lay helpless before him, he said, "Anybody who would do as she did, ought to die." These outrages were committed while his brother and the prisoner's child were present, but neither their presence nor persuasion nor remonstrance had influence upon him.

The apology for this barbarous murder is, that both the deceased and the prisoner were drunken and depraved persons, and were in some degree intoxicated, when the murder took place. I confess that these circumstances seem to me not to commend the prisoner to executive clemency. If the maintenance of justice ever requires the example of capital punishment, this seems to me to be, of all others, a case in which public sympathy ought not to save the offender.

The sheriff will make this decision known to the prisoner, so that false hopes may not interfere with his preparation for the great change before him.

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