in the cane, where it cracked, which went about half through it. The defendant struck about as hard as he could. The defendant told witness, at the time, that when witness' back was turned, he saw Bement throwing shavings, and bowing and winking to the other convict. Defendant stood where he saw it, in the door way between the rooms.---Witness and defendant were both taking charge of the convicts in the rooms. There were sixty or seventy convicts in the two shops. Both had the general charge of the two shops; though forc onvenience they were stationed in different shops. The duty of both was to overlook the whole The defendant told witness that Bement kept his eye on witness as witness walked back and forth; and when witness' back was turned, Bement went on with the sport, and that Bement did not observe him (defendant) at the middle door. Witness was about 12 or 15 feet off. Shop is about one hundred feet long. The conduct of Bement was a violation of the rules of the prison and its regulations. They had always been the standing rules of the prison, and the keepers had always been directed to chastise the convicts when they transgressed at work. The keepers were directed to chastise, but forbidden to do it with cruelty. In the opinion of the witness, it was necessary to preserve order and to keep them at work. It was common, when a convict confessed, not to chastise him at all. It is not done to add to their punishment, but only to keep them in order. Witness don't know that defendant would have whipped Bement, if he had not lied. All the assistant keepers have the same power. There was no other witness sworn.

The following section of an act, passed April 2d, 1819, was read to the jury.

"And be it further enacted, That if any prisoner, in either of the State prisons in this state, shall refuse to comply with the rules of the institution, or refuse to perform their daily task, or shall resist any of the officers of either of the prisons in their lawful authority, or shall wilfully destroy any of the property within the said prisons, it shall and may be lawtul, and it is hereby declared to be the duty of the respective keepers, under the direction of the Inspectors, to inflict corporeal punishment on such prisoners by whipping, not to exceed thirty-nine lashes at any one time, or to confine them in solitary cells, on bread and water, or to put them in irons or stocks, as the Inspectors may deem necessary in their discretion, proportionate to the degree of offence: Provided, when corporeal punishment be inflicted on any prisoner, by whipping, it shall be the duty of at least two of the Inspectors to be present: And provided further, That no punishment, by whipping, shall be inflicted on a female."

The cause was ably argued by the Hon. Henry R. Storrs, in behalf of the defendant, and by John W. Hulbert, Esquire, in behalf of the prosecution.

Substance of Judge Walworth's Charge to the Jury.--In summing up the case to the jury, Judge Walworth commenced by remarking, that the case which they were about to decide, was of the greatest importance-not indeed as it related to the individual accused; but from

the effect which their decision might have upon one of the most im portant institutions in this country: And he regretted that the length of time already consumed in the trial, and the lateness of the hour, must of necessity confine the Court to a few remarks only, and would not permit him to go so fully into the subject as the nature and extent of the questions involved in this controversy actually demanded: That the questions which had been discussed before the Court and Jury, as well by the counsel for the prosecution as by the counsel on the part of the defendant, deeply affected the whole Penitentiary system: That, if the principles contended for on the part of the prosecution, were adopted to their fullest extent, there would be an end of all Prison discipline; and the Penitentiary system in this country would become worse than useless;-the hopes and expectations of philanthro-/ py must wholly fail; and we should be compelled again to resort to thase sanguinary modes of punishment at which humanity shuddered, or suffer the felon to go unpunished, and unrestrainedly to trample upon the rights of his fellow men, to the utter destruction of all social order. On the other hand, the absolute and unlimited power of the keepers over the convicts committed to their charge, which had been contended for by the defendant's counsel, might in the hands of rash and indiscreet, or bad men, render the Penitentiary discipline so completely odious and revolting to the best feelings of the community, as to induce the Legislature to abolish the whole system as still more sanguinary and cruel than even capital punishment, for which it had become a substitute.

That before going more fully into this subject, it would be proper to observe, it was true as suggested by the counsel for the prosecution, « that in criminal cases, the jury were judges both of law and fact, but not to the extent contended for by the counsel. That the proper and legitimate province of the jury, was to determine the facts of the case; leaving it to the court, whose special duty it was, to determine all questions of law which might arise. That in civil cases, the jury were bound by the law, as delivered to them by the court: and it would be a violation of their oaths, if in making up their verdict in a civil case, they went contrary to the decision of the court, on a question of law. But if they differed in opinion from the court, they might always leave the questions of law upon the record, for the decision of a higher ribunal, by finding the facts, only in the form of a special verdict. That in criminal cases, it often happened that the law was so intimately blended with the facts, that it was impossible to separate them upon the record: And that so tender were the courts of the rights of the accused, that in all such cases, the jury were at liberty to find a general verdict of acquittal; and thus to determine the haw as well as the fact. That in such cases, the court, under its oath of office, must honestly state to the jury the law, which was applicable to the case; and they were bound to give that decision all the weight to which it was entitled, as coming from the bench. But still in favor of the accused, and especially in favor of life, in capital cases, the jury had a right to find a general verdict of acquittal, even against the

opinion of the Court, on a question of law, if they were fully convinced the decision of the Court was wrong. Ihat if the decision of the Court was in favor of the accused, the jury could never be justified in finding a general verdict of guilty, contrary to the law as delivered from the bench. But even in that case, if they doubted the correctness of the decision of the Court, they would be at liberty to find the facts, by a special verdict: That the reason or this distinction was obvious. If the jury erred in pronouncing a verdict of acquittal, they crred on the side of mercy and it was better that many guilty should escape, han that one innocent man should be punished. And that the policy of the law would not suffer any man to be condemned, except by the concurrence, both of the Court and the jury. That if the jury gave a general verdict of guilty, under a mistaken notion of the law, and in op. position to the declared opinion of the Court, their decision could not be reviewed by a higher tribunal; and in such a case the i ocent must inevitably suffer, unless the facts of the case were so clear plain, as to authorize the Court to set aside their ver ict, as being contrary, both to the law and the evidence.

The judge then took a general view of the penitentiary system of this state, and of the necessity of rigid prison discipline, for the reformation of offenders, or to restrain the commisso. of crime. He observed that imprisonment in the penitentiary or State Prison, had been adɔpted, in lieu of that sanguinary mode of punishment which was derived from our English ancestors; and which was still considered unavoidąble by most civilized nations. That by the laws of this state, for many years after the revolution, all the crimes now punishable with imprisonment for life, and many which are now punished only by impris onment for a term of years, were punished with death, for the first offence. All other felonies above the degree of petit lare ny, were, on a, first conviction, to be punished by fine, imprisonment, whipping, or other corporeal punishment, and with death for the second offence. That the effect of this system was that a very great proportion of the guilty escaped all punishment whatever. It was found that jurors would not convict on the ordinary evidences of guilt; or where they could find the slightest excuse for an acquittal That even the Judges, whose feelings revolted against the sanguinary code of laws which they were compelled to administer, constantly sought some excuse, from defect of form or otherwise, to save the life of the prisoner. And under such circumstances, if the law and the evidence was so perfectly clear, that neither Court or jury could prevent a conviction; and when the dreadful sentence of death had been pronounced against the guilty, it was still found that the feelings of the community would not suffer it to be executed. And there being no other mode of punishment devised, an executive pardon set the offender again at large, to renew his depredations upon society. That hence it was that crimes continued to multiply: and offenders, so far from being restrained by the terror of capital punishment, were only the more encouraged to persevere in their villanies, from the well founded belief that the nature of the threatened punishment was such, that there was little or no

K

danger that it ever would be executed. That such was our situation about thirty years ago, when that portion of the members of the legislature, who believed that society had a right to resort to any means, which were necessary to protect itself against the wickedness and depravity of its worthless members, but whos judgment condemned, and whose feelings revolted against the ineffectual and bloody code of laws which then existed; united with those who doubted the right to inflict capital punishment in any case; and adopted the penitentiary system, which had ever since been continued in this state. That a general prison for the state was then directed to be built; and those offenders who were before punishable with death, with few exceptions, were doomed to imprisonment for life: and other felonies, for the first offence, were punished by imprisonment thercin for a term of years. That for a short time after the erection of the first prison, it seemed to have the desired effect; it was confidently believed that the hopes of the friends of humanity were about to be realized; and that capital punishments might be dispensed with in all cases short of murder. But it was soon found that this new mode of punishment had lost all its terrors: that it neither restrained the cammission of crimes, or afforded any adequate punishment for the guilty: And that the numbers of the convicts, and the expenses of the institution, were rapidly and fearfully iucreasing. The vile and hardened offender there found himself surrounded by most of the comforts and enjoyments which he possessed while at large, and that his daily task of labor, was even less than that of most of our enterprising mechanicks and farmers. And relieved from all the cares of providing for himself or his family, and supported by the hard earnings of the virtuous part of community; the incorrigible felon had full leisure to concert with his companions in infamy, new schemes of mischief: or still further to corrupt the minds of those who were not so completely hardened in guilt. That the expiration of sentences, and the 'necessity of exercising the pardoning power, to make room for new convicts, daily turned loose upon society a gang of hardened villains, properly instructed and fully qualified, to become master spirits in iniquity. And it was even ascertained that crimes were sometimes committed for the express purpose of enabling the offender to get back to the state prison, that he might there enjoy the comforts of a home and the society of his old companions in vice and infamy. That such was the penitentiary system, until a very few years since. The once ardent hopes of the friends of the system had nearly failed, and even those to whose feelings the idea of capital punishment was the most revolting, feared we should again be compelled to resort to the bloody code, when the present system of prison discipline, which had been gradually improving under the authority of the legislature, was fully adopted by the Inspectors of the Auburn state prison.

His Honour remarked that confinement, with labor, merely, had no terrors for the guilty. That the labor which the human body was capable of performing, without endangering its health, was but little more than many of the virtuous laboring class of community daily and volntarily performed for the support and maintenance of their families.

That to produce reformation in the guilty, or to restrain the vicious. from the perpetration of crime, by the terrors of punishment, it was absolutely necessary that the convict should feel his degraded situation : should feel that he was actually doing penance for his wilful violation of the laws of his country. That he must, in his own person, be made to feel the difference which should exist between the situation of the upright and honest freeman, who labors for his daily bread, and the vile and degraded convict, wh by fraud or robbery, has deprived that. honest freeman or his family, of the hard earned rewards of his industry. That mistaken or misapplied sympathy for such offenders was injustice to the virtuous part of community. That the system of discipline adopted by the Inspectors of this prison, under the sanction of the laws, was well calculated to have the desired effect, of reforming the less vicious offenders, and of deterring others from the commission of crime, by the severity of punishment inflicted; and that too, in the best possible way. A mode of punishment, where compari ively little bodily suffering is felt, and the greatest severity of the punishment is inflicted upon the culprit, thro' the medium of the mind That it was however, thro' terror of bodily suffering alone, that the proper effect upon the mind of the convict could be produced: And thence the necessity of a rigid enforcement of the prison discipline upon every convict, by the actual infliction of bodily suffering, if he would not otherwise submit to the rules.

in

That it was impossible for the legislature to foresee every case which might arise, in the government of such a prison. The punishment was to be inflicted on men who had already become expert evading the laws of society. They would soon find means to evade any general provisions enacted by the legislature for their government while in prison. And it was for that reason, the legislature had delegated to a board of inspectors, in the vicinity of the prison, the power of making such regulations as from time to time they might find necessary. That the rules of the prison, which had been referred to by the witness, had undoubtedly been adopted by the inspectors, under that authority. That these regulations, if not repugnant to the constitution or laws of the state, had the binding force of a statute: and neither the court or jury, had any right to judge of their necessity, or their expediency. And the turnkey, under his oath of office, was bound to carry them into effect. But the judge observed, even the regulations made by the inspectors, must be general; and much discretionary power must still be vested in the superintendent and the assistant keepers, who had the direct and immediate charge of the prison

ers.

Cases must and would constantly occur, which did not come within the letter of any written law, or regulation: and where it might be necessary and proper to enforce obedience on the spot, in order to carry into effect the sentence of the law, and the general principles of the system. But notwithstanding these powers were necessary; and although the welfare of the state, the peace and happiness of society, and the hopes of the friends of our present mild code of criminal , all depended upon the success of the present system of disci