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whose pardon would so much impair the public confidence in the firmness, impartiality, and energy of the administration of justice. His conviction was necessary to maintain the sway of the laws, and the rights of citizens, and to vindicate the dignity and honor of the state. I reluctantly add, that it seems to be a case in which the effect of that conviction must not be impaired by the exercise of executive clemency.



Albany, July 22, 1840.


APPLICATION has been made for executive clemency in favor of Michael Vail, who was convicted, on the 15th of October, of the crime of an assault and battery upon his wife, with an intent to kill her. He was sentenced to be imprisoned in the stateprison five years. The prisoner was convicted upon his own confession.

There are no minutes of testimony, and I am left without any information concerning the crime, except that it was committed in a fit of intoxication, by firing a loaded pistol with intent to kill. It is not alleged that the prisoner fired the deadly weapon in self-defence, in a sudden burst of uncontrollable passion, or even upon great provocation. I am left therefore to infer, that if the prisoner's fatal purpose had been accomplished, he would have been guilty of murder.

The petition is signed by his wife and children, and sets forth that the prisoner became intemperate a short time before he committed the fearful crime; that he was a very worthy, respectable, wealthy man, a kind husband, and indulgent father; and that he committed the crime in a state of intoxication.

The petitioners assure me, that if their application shall be successful, they will provide a comfortable home for the prisoner in one of the western states. The gentlemen who constituted the court join in the application, on the ground that the wife has forgiven the prisoner, and that he is now more than fifty years of age. The prisoner's previous respectability and wealth, aggra

vated rather than extenuated his offence. No previous good conduct can be received to excuse murder, or an intent to commit that dreadful crime. His intoxication would not have been received by the court as an excuse, if the prisoner's fatal purpose had been accomplished. The wife's forgiveness of such an unnatural and inhuman crime is honorable to her and to her sex; the solicitude of the prisoner's children for his freedom is natural and praiseworthy. I am not unmoved by sympathy for them, and for the prisoner. But it can not be safe or wise to publish in this community, that five years imprisonment is too severe a punishment for the man who, respectable or otherwise, drunk or sober, discharges a deadly weapon with intent to murder his wife. I doubt not that a pardon would increase the happiness of the prisoner's family, but the peace and security of many families would be put in jeopardy by such ill-considered clemency.




Albany, November 18, 1840.

SIR: Many engagements have prevented my reading until to-day your letter of October 26, which arrived here during my absence from the city.

A very imperfect view of the conduct of public men is generally obtained from the newspapers, especially during a political canvass. It is a fundamental principle of law and of the constitution, that no citizen shall suffer in his person but upon conviction of a capital crime by due course of law. The executive alone possesses the power of staying execution in capital cases.

Let me ask you to imagine that you had a son convicted of murder; that a judge of the supreme court should allow a writ of error, and should certify to the executive that there was prob able cause to believe that the judgment was erroneous, and would be reversed upon a review of the record. What would be your opinion of the executive who should refuse to stay execution until the record could be reviewed? Writs for review in the forms of appeals, certioraris, and formal writs of error, are

allowed in all cases involving property, no matter of how small a value. Is the life of a citizen to be held less sacred?

Let me ask you to imagine again that the same cause having been reviewed by the supreme court, all the judges of that court certify that although they have confirmed the conviction, yet that the question is so grave and doubtful, that they deem it their duty to grant a writ of error to carry the cause to the court of dernier resort for its decision, and they desire a stay of execution for that purpose. What would you say of an executive, who, assuming in a case of life and death to be confident when the court doubted, should send your son to the grave unheard? What would be the measure of public execration due to such a tyrant? What his reproach of conscience?

Would either be diminished by the circumstance that any portion of the public clamored for the blood of the victim, or that a party press imputed his just interference to political or unworthy motives?

In the cases I have presented to you, you have that of Ezra White. He is unknown to me but by his conviction, and the consequent proceedings of the courts. No petition for his pardon has ever been presented to me, nor a request of that kind made. His trial has never been read nor considered by me, because I would have no prejudice for or against him to sway me from the impartial justice I owe all the citizens of the state. The blood that flows under the executioner's axe, without the full and perfect conviction of the offender prescribed by the constitution and laws, will stain the magistrate in the day when he shall stand before the same tribunal with his victim.

Whenever the courts of law shall deliver Ezra White into my hands, with their record of his conviction, his crime, its motives, its aggravations, and its mitigations, will be considered, and such a decision will be made as is required by a due sense of the responsibilities I owe to God and my country. In the meantime, I should be very unworthy of those responsibilities, if I were capable of listening to the intimidations of the press, or the persuasions of partisans.

I remain, sir, very respectfully, your obedient servant.



Albany, December 2, 1840.


SIR: I have received and have duly considered the petition of my fellow-citizens of Albany county, praying for a commutation of the sentence of Jacob Leadings, who was convicted on the 12th day of October last, of murder, and was sentenced to suffer death on the fourth day of December instant.

The petitioners admit the justice of the verdict rendered against the prisoner; but they submit as a reason for the appeal in his behalf, that they entertain conscientious scruples of the right of the community to inflict capital punishment.

The opinions of those who deny that right are entitled to very great consideration, as well from their respectability and intelligence, as from the grave importance of the subject. Nevertheless, it seems to me that the question belongs to the legislature. Whatever might be my own doubts, I am charged with the execution of the laws as they are, not with the responsibility of making them, as I suppose they ought to be. The power of pardoning criminals is confided to me, for the purpose of maintaining the laws, not to repeal them or set them aside. A pardon granted upon the ground I have mentioned, would involve the obligation to pardon in all other capital cases, and thus the laws, solemnly established by the legislature, would be virtually repealed by the executive authority. The prisoner is represented to me by the petitioners as illiterate and ignorant, and, when not intoxicated, an inoffensive person. The report of the trial is before me. The prisoner, in his own dwelling-house, with deliberate intent, without provocation, killed his wife, the mother of his thirteen children. Can any man in this Christian land be so ignorant as not to know that such an act is a crime against the laws of God and man? The evidence is not conclusive that he


was intoxicated when the offence was committed; but let that fact be admitted, can intemperance excuse so horrible a crime? The law forbids that he should live to destroy the lives of others. The law adjudges that when one member of society thus takes the life of another, he shall be cut off, as an example to deter others from similar transgression.

It does indeed happen occasionally that without impairing the salutary force of example, a victim may be rescued from the gallows; but who shall be left to the murderer's fate, if it be not he who slays the mother of his children.

The petitioners further represent, that notwithstanding the Christian counsel and faithful attendance of the prisoner's religious friends and the clergy, it is to be feared that if his sentence should be carried into effect, he would pass from time to eternity entirely unprepared, to appear before the bar of God.

It is a fearful, and I earnestly hope it may be a mistaken, apprehension. But I can scarcely conceive the obduracy which the petitioners describe. However this may be, the plea, nevertheless, can not be allowed; for it would be to execute the judgment of the law upon the penitent and broken-hearted, and save those whom neither conscience nor the fear of death, or of the tribunal beyond the grave, can soften and subdue.

I have answered the application with as little delay as was consistent with due deliberation, in order that the few hours, which yet remain to the prisoner, may not be misspent, under a delusive hope of executive clemency.

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