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THE CASE OF BENJAMIN RATHBUN.

STATE OF NEW YORK, EXECUTIVE, DEPARTMENT,
May

THE application for the pardon of Benjamin Rathbun is supported by the petition of several thousand citizens of this state, who certify their personal acquaintance with the prisoner, and express a warm and generous sympathy in his favor. It would be quite unnecessary on such an occasion to acknowledge a respectful deference to the wishes of the petitioners, since an unjust and unreasonable denial would expose the executive to the loss of a large portion of the public confidence.

It is not contended that the conviction of the prisoner was unjust or erroneous. He exercised freely the right of challenge to his jurors. He was defended with zeal, ability, and learning. Sympathies such as no other offender has ever awakened in this country, held public opinion in suspense, until the result of his trial was known, and the same sympathies agitated the community with hopes of his deliverance, while the proceedings on that trial were under review in the supreme court. The question now is whether he is a proper subject for executive clemency. Its decision necessarily requires a consideration of the circumstances under which his offence was committed. I am especially desirous to perform that duty, without misapprehensions of facts, as I certainly shall, without prejudice against the prisoner.

He was for many years engaged in mercantile transactions, banking, building, common carrying, and in the purchase, improvement, and sale, of real estate. He had in his employ in 1836, two thousand laborers, besides ninety-seven agents, assist ants, cashiers, superintendents, firemen, measurers, clerks, and Overseers. His daily disbursements exceeded ten thousand dollars. He had the control of several banks, and kept a financial agency in Buffalo, and another in the city of New York.

In carrying on this extensive business, the practice of forgery was adopted, at first, in a very small way, to save the protest of some important paper. Afterward his cashier, Lyman Rathbun, emboldened by success, resorted to similar proceedings as often as he became straitened for funds, making sometimes false checks, and sometimes false endorsements. Sometimes quite an amount of spurious paper accumulated in the brokers' offices, and at other periods all was taken up. The necessity for forged paper increased so much, that Lyman Rathbun Howlett, and Rathbun Allen, the prisoner's nephews and clerks, were initiated, and were all busily employed in making, selling, and negotiating forged paper. The extent of these forgeries is not known, but it is notorious that the names of thirty-five persons and firms were habitually used as drawers and endorsers, and that it was impossible for the prisoner himself to distinguish between his genuine and spurious paper, without referring to private marks in his books. It is now well understood that the amount of forged paper remaining unpaid when the prisoner was arrested, exceeded one and a half millions of dollars. Including what was issued for the various purposes of renewal, postponement, and payment, the whole amount forged must have been more than twice that sum. It is believed that these forgeries surpassed in boldness and perseverance all similar offences in this and every other country. It was alleged in behalf of the prisoner, that he had necessarily devolved the exclusive management of his financial concerns upon his cashier, Lyman Rathbun, and that he was entirely ignorant of these forgeries, until about the time of his failure. Extraordinary as it would have been if these transactions had been carried on so long for the prisoner's advantage, and by his confidential agents, and without his knowledge or participation, yet it is certain that these allegations were received with favor by the community, and that he enjoyed so far as public opinion was concerned, the benefit of the humane principle, that the accused shall be presumed innocent until his guilt is established. I have examined the record of the trial, and have discovered, with much regret, that it leaves no possibility of doubt of the prisoner's agency and participation in carrying on the great system of forgery which it describes. Three notes of five thousand dollars each, with the forged endorsement of eleven citizens of Buffalo, were enclosed in a letter written by himself to

the prosecutor. This letter contained the request that the notes might be laid away in a private desk, and assigned a false reason for asking that extraordinary favor. Admissions of the prisoner were proved entirely inconsistent with the ignorance he pretended. He admitted to a witness, that when he came to a knowledge of the forgeries, his business was so extended that it was necessary to continue them-that he could not control them-that he had been in the expectation of withdrawing the forged paper from the market, but that the thing grew worse instead of better, and it was too late to stop it. He spoke also of the distress of mind he had suffered while the practice was going on, from constant apprehension that the forgeries would be discovered. His nephew, Rathbun Allen, acknowledged to have been a confidential assistant of his cashier, and to have been one of the persons by whom the forged endorsements for the prisoner's benefit were made, testified that he forged the signature of the prosecutor as the drawer of several notes, in the prisoner's presence, and by his direction, and gave the paper thus signed to the prisoner himself. It is true that this is the testimony of an accomplice, to be received with caution, but it bears the evidence of candor and truth, and is corroborated by circumstances, by the prisoner's admissions, and by his memoranda and letters. Papers were found in the prisoner's handwriting, containing copies of spurious notes, with remarks showing that he had put the originals in circulation. His letters show a familiar acquaintance with his financial concerns, and great energy in their management. In these letters he repeatedly gave his agents instructions as to the form of spurious paper required for use, and advice how to avoid detection, and urged them to greater exertion in carrying the perilous business to a successful termination. The allusions in his correspondence to the forgeries are, as might be expected, obscure, yet admit of no other application.

They show that he was for a long period, if not from the commencement, the master-spirit in the conduct of the forgeries, as well as the only party benefited by them. They leave no doubt that, if he did not initiate his younger brother and nephews, he led them deeper into crime, and continued to avail himself of all their plans, skill, management, adroitness, and deception, until the sudden exposure rendered these unavailing. I confess the prisoner's guilt seems to me much aggravated by the ruin in

which he has involved three persons, who, from their youth, their relationship to himself, and their dependence upon him, it is so natural to suppose were the instruments employed by him in carrying out his desperate plans, to maintain an impracticable credit and retrieve ruined fortunes.

There are six indictments against the prisoner remaining untried. Whatever charity others may indulge, as an executive officer, I am bound to assume that these prosecutions rest upon sufficient grounds. The constitution gives the executive no power to pardon, or to suspend criminal proceedings, before conviction. If a pardon were granted in the present case, it would, nevertheless, be the duty of the public prosecutors to cause the prisoner to be brought to trial upon the other indictments, and they have the right to invoke my aid if deemed necessary. It would certainly be an extraordinary spectacle, if the civil authorities should be found acting in opposition to each other in the administration of justice, or if a prisoner should one day be pardoned from a conviction for forgery, and the next be brought to trial for other similar offences upon indictments, pending at the time such pardon issued.

Extraordinary as are the circumstances of Benjamin Rathbun's conviction, the sympathy of the petitioners in his behalf is by no means without cause. He has been for more than twenty years a citizen of Buffalo. While living there, he rose by industry and energy, from an humble condition, to wealth, respectability, and extensive usefulness. The wharves, streets, and institutions of that flourishing and beautiful city, furnish many evidences of his enterprise and public spirit. He was, until the forgeries were discovered, generous in all his transactions, courteous and kind in all his relations, munificent to the public, and charitable to the poor. Aged and respected parents, and a wife, even more eminent for her virtues than for her misfortunes, are involved in the consequences of his conviction.

The occasion does not require me to controvert the opinion expressed by the petitioners, that the punishment the prisoner has already suffered, by being arrested in mid-career, suddenly stripped of his dazzling honors, torn from his family, cast out of society, degraded to the companionship of vileness and crime, and finally stamped indelibly as a felon, is enough, without prolongation of his imprisonment, to reclaim him from his dangerous

ways and effect his reformation. The criminal code has one purpose more important than the reformation of the offender. That purpose is the prevention of crime, by the example of punishment. The prisoner's offences exceed in magnitude, and in injurious consequences, those of probably all the convicts, for similar crimes, in the stateprisons. His education, intelligence, experience, condition in life, associations, and relations, exempted him from the necessities and temptations which palliate, if they can not excuse, the transgressions of more ignorant and humble offenders. Assuming, as is suggested by the petitioners, that he acted under great excitement, and without sordid motives, it is by no means certain that it would be safe to extend a pardon on that account. In the first place, such a refinement would hardly be comprehended by those who are to be affected by the example of punishment. In the second place, if the crime of forgery more rarely proceeds from ambitious than from sordid motives, the present case shows, at least, that it is more bold and dangerous when it does thus occur. In instituting the comparison there is also much danger of judging uncharitably those to whom sordid motives are imputed. The first crime is almost always committed under the pressure of some real or supposed necessity, and under the influence of a delusive hope of future ability to make restitution. If there is one department in the administration of government, where impartiality ought to be maintained more rigidly than in any other, it is in the exercise of the pardoning power. The plea which prevails in favor of one whom the world has esteemed and respected, and in whose behalf thousands address the executive, ought to be equally efficacious when offered by the most obscure prisoner in his solitary cell. It would be altogether inconsistent with the public welfare to grant pardons to all those for whom an excuse could be offered, at least as plausible as that so prominently presented in this case. And yet if such considerations are suffered to prevail in behalf of Benjamin Rathbun, it would be cruel injustice to deny them force in any other instance. The very circumstances which have induced so much exertion in his behalf, have excited public attention in regard to his case, which is well understood throughout the whole community, and has unfortunately become a part of the history of the

state.

For this reason I deem it certain that there is no other offender

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