Dealings With The Dead Volume I Part 17

In 1277, two hundred and sixty-seven Jews were hung, in London, for clipping the coin. Their usurious practices, at last, so highly exasperated the nation, that, according to Rapin, Lond., 1757, vol. iii.

246, 15,000 were banished the realm, in 1290. They had obtained great privileges from King Edward; but, says Rapin, "lost all these advantages, by not curbing their insatiable greediness of enriching themselves, by unlawful means, as usury, &c." I find Sir Edward c.o.ke denies the fact of their banishment. His version is this: "They were not banished, but their usury was banished, by the statute, enacted in this parliament, and that was the cause they banished themselves into foreign countries, where they might live by their usury; and because they were odious to the nation, that they might pa.s.s out of the realm in safety, they made a pet.i.tion to the king, that a certain day might be prefixed for them to depart the realm, that they might have the king's writ to his sheriffs, for their safe conduct." 2d Inst.i.tute, 507. Hume, nevertheless, Oxford ed., ii. 210, reaffirms the statement of Rapin.

Hume says, ibid., the practice of usury was afterwards carried on, "by the English themselves upon their fellow-citizens, or by the Lombards and other foreigners;" and he adds--"It is very much to be questioned, whether the dealings of these new usurers were equally open and unexceptionable with the old." Perhaps it may be questioned, whether the community would not fare better, at the present day, if some of the circ.u.mcised could be imported hither, from the Jews' Quarter, in Istampol. The following remark of Hume, on the same page, is of importance to the political economist:--"But as the canon law, seconded by the munic.i.p.al, permitted no Christian to take interest, all transactions of this kind must, after the banishment of the Jews, have become more secret and clandestine, and the lender, of consequence, be paid both for the use of his money, _and for the infamy and danger, which he incurred by lending it_." This is not from Aristotle, nor one of the school divines, but from David Hume, whose liberality is sufficiently notorious.

The English usurers, in those days, were more excusable, because they were not permitted to take _any interest whatever_, for the loan of money, while money lenders here have not the same excuse for being usurers, as they may lawfully take six per cent. per annum, or one per cent. above the legal rate of Great Britain, as established in 1714, the 13th of Queen Anne, and which has remained unaltered, to the present day.

I have heard of a fellow, who, upon being asked, after conviction of larceny, if he did not regret his conduct, replied, with an air of great sincerity, that he certainly did--for, instead of stealing a few pieces of gold, as he had done, he might easily have stolen enough, to bribe the court and jury. The Jews were wiser in their day and generation--they never suffered themselves to be placed in a predicament, which might cause them to suffer from any such regret. For many years, there subsisted a delightful understanding, between them and Edward I. Longshanks.

Longshanks granted them many and various indulgencies; by his permission, they even had a synagogue in London. On their part, they were willing to relieve the necessities of Longshanks. In short, Longshanks was, vicariously, and upon the principle, that _qui facit per alium facit per se_, the very Apollyon of all usurers. He countenanced the extortion of the Jews, and shared the spoils. Sir Edward c.o.ke, in his Second Inst.i.tute, 506, states that, in seven years, covering portions of the reigns of Henry III. and Edward I., the Crown had four hundred and twenty thousand pounds, fifteen shillings, and four pence from the Jews.

After treating of the advantages and disadvantages of taking interest, on money loans, and arriving at the sensible conclusion, that it is impossible for society to get along without them, Lord Bacon remarks, ii.

354--"Let usury (the term for interest in those days) in general be reduced to five in the hundred, and let the rate be proclaimed to be free and current: and let the State shut itself out to take any penalty for the same. This will preserve borrowing from any stop or dryness. This will ease infinite borrowers in the country, &c." Lord Bacon was therefore in favor of an universal rate of interest, established by law. Of usury, in the opprobrious sense of the word, the taking of excessive and unlawful interest, this great man speaks in his tract on Riches, ii. 340, in no very complimentary terms--"Usury is the certainest means of gain, though one of the worst, as that whereby a man doth eat his bread, in _sudore vultus alieni_," by the sweat of another's brow.

I have heard it said of a rural governor of Ma.s.sachusetts, now sleeping with his fathers, that, although addicted to the practice of virtual usury, he scrupulously abstained from lending money, at any rate, beyond six per cent. It became a by-word, in his district, however, when a farmer became straitened for a little money, and was inquiring among his neighbors--_that it was quite likely his excellency might have a yoke of cattle, that he did not care to winter over_! The cattle were sold at a high price to the needy man, who sold them forthwith, at auction, or otherwise, for a small one, giving the worthy governor his note in payment, and a mortgage on his farm, if required. The note was payable in six months, or a year, with "lawful interest."

This moral manoeuvre appears to have been of ancient origin. There is the draught of a law for the punishment of it, in Lord Bacon's works, iv. 285.

The preamble runs thus--"Whereas it is an usual practice, to the undoing and overthrowing of many young gentlemen and others, that where men are in necessity, and desire to borrow money, they are answered, that money cannot be had, but that they may have commodities sold unto them, upon credit, whereof they may make money, as they can: in which course it ever comes to pa.s.s, not only that such commodities are bought at extreme high rates, and sold again far under foot, at a double loss; but also that the party which is to borrow, is wrapt in bonds and counter bonds; so that upon a little money, which he receiveth, he is subject to penalties and suits of great value." Then follows the statute, taking away legal remedy, and punishing the broker or procurer with six months' imprisonment, and the pillory.

It has been commonly understood, that, before the act of 37th Henry VIII., though Christians were forbidden to take any interest for money, the Jews were not restrained; yet Lord Chief Baron Hale, Hard. 420, says that Jewish usury was forbidden, at common law, being forty per cent. and upwards, per annum, but no other. Lea, C. J., Palm. 292, says, that the usury, condemned at common law, was the "_biting usury_" of the Jews. To comprehend this expression, it must be understood, that, among the Jews, of old, there were two Hebrew words, signifying _usury_, _terebit_, which meant simply _increase_, and _Neshec_, which meant _devouring_ or _biting usury_. Of this distinction, an account may be found in Calmet, vol. iii.

Fragment 46.

When the statute of James I. was pa.s.sed, in 1623, reducing the rate from ten to eight per cent., Orde says, in his Law of Usury, p. 5, that the Bishops "would not, at first, agree to it, for the sole reason, that there was no clause that disgraced usury, as in former statutes; and then the clause at the end of that statute was added, for their satisfaction."

Usury was punished more severely in France, than in England. For the first offence, the usurer "was punished by a public and ignominious acknowledgment of his offence, and was banished. His second offence was capital, and he was hanged." c.o.ke's 3d Inst.i.tute, 152.

No. LIII.

Our society, whose object is nothing less than the entire and unqualified abolition of capital punishment, have derived the greatest advantage, from an ample recognition of the rights of women--not only by a free partic.i.p.ation of counsel with the softer s.e.x, after the example of certain other societies, the value of whose services can never be understood, by the present generation; but by a.s.signing equally to both s.e.xes, all offices of honor and trust. We have adhered to this principle, with the most perfect impartiality, in the composition of our committees. Thus, our committee, for visiting the condemned, consists of the Rev. Mr. Puzzlepot, and the five Miss Frizzles--the committee on public excitement, prior to an execution, consists of Dr. Omnibus, Squire Farrago, Mrs. Pickett, and her daughters, the Misses Patience and Hopestill Pickett. In like proportion, all our committees are constructed.

We think proper, in this public manner, to express our warmest acknowledgments to Mrs. Negoose, Madam Moody, and Squire Bodkin, for their able report, on the iniquity of presumptive or circ.u.mstantial evidence.

The notes, appended to this report, are invaluable--their authorship cannot be mistaken--every individual, acquainted with the peculiar style of the gifted author, will recognize the powerful hand of the justly celebrated Mrs. Folsom.

This committee are of opinion, that, under the show or pretence of punishing murder, our legal tribunals are constantly committing it. They _presume_, forsooth, that is, they guess, that the prisoner is guilty, and therefore take the awful responsibility of hanging him by the neck, till he is dead! This, says Mrs. Negoose, is _presumption_ with a vengeance.

The committee refer to the statement of Sir Matthew Hale, as cited by Blackstone, iv. 358-9, that he had known two cases, in which, after the accused had been hung for murder, the individuals, supposed to have been murdered, had re-appeared, in full life. Upon this, the committee reason, with irresistible force and ac.u.men. How many judges, say they, there have been, since the world began, we know not. _Two cases_, in which innocent persons were executed, on presumptive or circ.u.mstantial evidence, are proved to have occurred, within the knowledge of _one judge_. It is reasonable, say the committee, to conclude that, at a moderate calculation, _three cases_ more, remaining undiscovered, occurred within the jurisdiction of that _one judge_. Now, we have nothing to do, but to ascertain the number of judges, who have ever existed, and then multiply that number by _five_; and thus, say the committee, "by the unerring force of figures, which cannot lie, we have the sanguinary result." "Talk not of ermine," exclaims Mrs. Negoose, the chairwoman of the committee, in a gush of scorching eloquence, "these blood-stained judges, gory with the blood of the innocents, let them be stripped of their ermine, and robed with the skins of wild cats and hyenas."

It has excited the highest indignation in the society, that Sir Matthew Hale, who has ever borne the name of a humane and upright judge, should have continued to decide questions, involving life, upon circ.u.mstantial evidence, after the cases, referred to above, had come to his knowledge, and in the very same manner, that he had been accustomed to decide them, in earlier times. Mrs. Moody openly expresses her opinion, that he was no better than he should be; and Squire Bodkin only wishes, that he could have had half an hour's conversation with Sir Matthew. The only effect, produced upon the mind of Sir Matthew Hale, by these painful discoveries, seems to have been to call forth an expression of opinion, that circ.u.mstantial evidence should be received with caution; and that, in trials for murder and manslaughter, no person should ever be convicted, till the body of the individual, alleged to have been killed, had been discovered.

An opinion, often repeated, as having been expressed by Chief Justice Dana, after the conviction of Fairbanks, for the murder of Miss Fales, at Dedham, in 1801, has frequently been a topic of conversation, among the members of our society, and Mrs. Negoose is satisfied, that if Chief Justice Dana expressed any such opinion, he must have been out of his head. Fairbanks was convicted and hung, on circ.u.mstantial evidence entirely. The concatenation, or linking together, of circ.u.mstances, in that remarkable case, was very extraordinary.

The sympathy for Fairbanks was very great, and began to exhibit itself, almost as soon, as the spirit had fled from the body of his victim. After his condemnation, his zealous admirers, for such they seemed to be, a.s.sisted him successfully, to break jail. He was retaken, on the borders of Lake Champlain; and, as the jail in Boston was of better proof, than the jail in Dedham, he was committed to the former. The genealogy of Fairbanks was shrouded in a sort of mystery. Ladies, of respectable standing, visited him, in his cell, and one, in particular, of some literary celebrity, in our days of small things, was supposed to have supplied him with a knife, of rather expensive workmanship, for the purpose of self-destruction. This knife was found upon his person, after her visits. There was no positive proof, to establish the guilt of Jason Fairbanks--not a t.i.ttle. Yet a merciless jury found him guilty, by a process, which our society considers mere _guess work_,--and after the execution, Judge Dana is reported to have said, that he believed Fairbanks murdered Miss Fales, more certainly, from the circ.u.mstantial evidence, produced at the trial, than if he had had the testimony of his own eyesight, at a short distance, in a dusky day. What sort of a Judge is this? cried Mrs. Negoose--sure enough, exclaimed Madam Moody.

I have no objection to give our opponents all the advantage, which they can possibly derive from a full and fair exposition of their arguments.

When a witness, for example, swears, directly and unhesitatingly, that he saw the prisoner inflict a wound, with a deadly weapon, upon another person--that he saw that other person instantly fall, and die shortly after, this is _positive evidence of something_. Yet the act may be murder, or it may be manslaughter, or it may be justifiable homicide.

Murder consists of three parts, the malice prepense, the blow inflicted or means employed, and the death ensuing, within a time prescribed by law.

There can be no _murder_, if either of these parts be absent. Now, it is contended, by such as deem it lawful and right to hang the unfortunate, misguided, upon circ.u.mstantial evidence, that, however _positive_ the evidence may be, upon the two latter points--the act done and the death ensuing--it is necessary, from the nature of things, in every case to depend on _circ.u.mstantial_ evidence, to prove the malice prepense.

One or more of the senses enable the witness to swear positively to either of the two latter points. But the malice prepense must be _inferred_, from words, deeds, and _circ.u.mstances_. Upon this Dr. Omnibus sensibly observes, that this very fact proves the impropriety of hanging upon all occasions: and Mrs. Negoose remarks, that she is of the same opinion, on the authority of that ancient dictum, the authorship of which seems to be equally ascribed to Solomon and Sancho Panza--that "_circ.u.mstances_ alter cases."

It is really surprising, that so grave and sensible a man, as Mr. Simon Greenleaf, should have made the remark, which appears on page 74, vol. i., of his Treatise on Evidence,--"_In both cases_ (civil and criminal) _a verdict may well be founded on circ.u.mstances alone; and these often lead to a conclusion far more satisfactory than direct evidence may produce_."

Mr. Greenleaf refers, for ill.u.s.tration of this opinion, to the case of Bodine, N. Y. Legal Observer, vol. iv. p. 89, et seq. Lawyer Bodkin's work on evidence will, doubtless, correct this error.

Let us reason impartially. Compunction, in a dying hour, we cannot deny it, has established the fact, that innocent persons have been hung, now and then, upon _positive_ evidence, the false witness confessing himself the murderer, _in articulo mortis_. Well, says Madam Moody, here is fresh proof of the great sinfulness of hanging.--To be sure.--But let our opponents have fair play. A. is found dead, evidently stabbed.--B. is seized upon suspicion.--C. heard B. declare he would have the heart's blood of A.--D. saw B. with a knife in his hand, ten minutes before the murder.--E. finds a knife b.l.o.o.d.y, near the place of the murder.--F.

recognizes the knife as his own, and by him lent to B. just before the time of the murder.--G. says the size of the wound is precisely the size of the knife.--H. says, that, when he arrested B. his hand and shirt-sleeve were b.l.o.o.d.y.--I. says he heard B. say, just after the murder, "I've got my revenge." In the case supposed, C. D. E. F. G. H. and I.

swear _positively_, each one to a particular fact. Here are seven witnesses. Here then is a chain of evidence, whereof each witness furnishes a single link. It is the opinion of Peake, Chitty, Starkie, Greenleaf, and all other writers, on the law of evidence, that this chain is often as strong or stronger, than it would be, were it fabricated by one man only. I will not deny, that Dr. Omnibus and Mrs. Negoose think differently.

An extraordinary example of circ.u.mstantial evidence, in a capital case, was related by Lord Eldon. A man was on trial for murder. The evidence against him, which was wholly circ.u.mstantial, was so very insufficient, that the prisoner, confident of acquittal, a.s.sumed an air of easy nonchalance. The officer, who had arrested the prisoner, and conducted the customary search, had exhibited, in court, the articles, found upon his person, at the time of his capture--a few articles of little value, and, among them, a fragment of a newspaper. The surgeon, who examined the body of the victim after death, produced the ball, which he had extracted from the wound, precisely as he found it. Enveloped in a wrapper of some sort, and with the blood dried upon it, it presented an almost unintelligible ma.s.s.

A basin of warm water was brought into court--the ma.s.s was softened--the wrapper carefully detached--it was the fragment of a newspaper, and fitted like the counterpart of an indenture to the fragment, taken by the officer from the prisoner's person. He was hung. Dear me! says Mrs. Negoose, what a pity!

I regret to learn from the late London papers, that Mr. Horace Twiss is recently dead. No one, I am confident, will fail to join in this feeling of regret, who has enjoyed, as I have done, the perusal of his truly delightful work, "The Public and Private Life of Lord Chancellor Eldon."

No. LIV.

A pleasant anecdote is related by Nichols, of Dean Swift, who, when his servant apologized for not cleaning his boots, on a journey, because they would soon be dirty again, directed him to get the horses in readiness immediately: and, upon the fellow's remonstrance, that he had not eaten his breakfast, replied, that it was of little consequence, as he would soon be hungry again.

The American Irish are, undoubtedly, a very sweet people, when they are thoroughly washed; but they rarely think of washing themselves or their children--they are so soon dirty again. Hydrophobia is an Irish epidemic; and there are also some of the Native American Party, I fear, who have not been into water, since the Declaration of Independence.

When Peter f.a.gan applied to me, a few days since, to read for him a letter, from his cousin, Eyley Murphy, of Ballyconnel, in the county of Cavan, he was so insufferably filthy, that I gave him a quarter of a dollar, to be spent in sacrificing to the graces, that is, in taking a warm bath. While he was absent, I examined the letter; and found it to be a very interesting account of the execution of f.a.gan's fourth cousin, Rory Mullowny, for murder. As I thought its publication might be of importance here, at this time, I obtained Mr. f.a.gan's permission to place it before the community. I was, at first, disposed to correct the spelling, and give it rather more of an English complexion, but have, upon the whole, decided to publish it, as it is. f.a.gan tells me, that Eyley Murphy was the daughter of the hedge school-master, at Ballyconnel. The letter is written in a fair hand, and directed, "For Misther Pether f.a.gan, these--Boston, Capital of Amerriky."

Ballyconnel, Cavan, March 19, 1849.--f.a.gan dear, bad news and thrue for ye it is; Rory Mullowny, your own blood cousin o' the forth remove, by the mither's side, was pit up yestreen for the murther o' Tooley O'Shane, and there was niver a felly o' all that's been hung in Ballyconnel, with sich respictable attindance. The widdy Magee pit the divle into both the poor fellies, no more nor a waak arter the birril o' her forth husband, and so she kipt a flarting wid the one and the t.i.ther, till she flarted um out o'

the warld this away.

Poor Rory--what a swaat boy he was--jist sax foot and fore inches in his brogans--och, my G.o.d! it's myself that wush'd I'd bin pit up along wid im.

But he's claan gane now; whin we was childer togither how we used to gather the pirriwincles by the brook, and chase the fire-flaughts in the pasture o' a June evening--och my G.o.d--Pether--Pether--but there's no use waaping anyhow, so I'll be telling ye the shtory.

Poor Mullowny was found guilty o' what they call sirc.u.mstanshul ividunce.

A spaach it was he made whin the cussid sherry was pittin im up, and he swore he died more innisent o' the crime nor the mither o' G.o.d, and he called G.o.d to witness what he sed. Himself it was that was rather hasty onyhow, in makin a confission to father Brian Bogle o' this very murther, and some other small mathers, a rape or too, may be, and sich like.

But the socyety that's agin pittin a body up--G.o.d bliss their sowls--they perswaded im to spaak at the gallows, and till the paaple how it was, and they rit im a spaach, in wich he toult 'em a body's last wull was the only wull that was gud in the law, and sure it was a poor body's last words and dyin spaach that was gud anunder the tree. And whin he had dun, the cursed divelsbird o' a sherry, wid a hart as coult as bog mud, swung im off in a minnit. It was himsilf was spaakin; and I jist pit my apurn to my face to wipe aff the saut wather, whin I heerd a shreek and a howl, louder and wilder nor ten thousand keenas at a birril, whin I lookd up and saw poor, daar Mullowny a swingin in the air. The like o' that yersilf niver saad, Pether f.a.gan, nor the mither that brot ye into this world o' care and confushon. The wimmin scraamed loud enuff to friten the little childer claan away in Ballymahon. The min swung their shillalies owr their heds.

Father Brian Bogle was crossing himself, and a stone hurld by Jimmy Fitzgerald at the infarnal sherry, knocked father Bogle's taath down his throte. By the same token ye see, they was pit in for im the dee afore at considerable cost. Father Brian fell back, head foremost, ye see, on top o' Molly Mahoney's little bit table o' refrishments, and twas the wark o'

a minnit.

Molly, who jist afore was wall to do in the warld, was a brukken marchant, immadiately, all claan gane; tumblers o' whiskey, cakes, custards, and cookies was all knocked in the shape o' bit o'chalk; and all the pennies she had took since bick o'dee--for more nor ten thousan was on the spot to see poor Rory pit up afore dee--was scattered and clutched up, by hunders o' little childher that was playing prop and chuck farding anunder the gallus. A jug o' buthermilk was capsized ower the widdy Magee's bran new dress, that was made for the hanging precesely, and ruinated it pretty considerably intirely. It was not myself that pittied the hussy--she to be there, as naar to the gallus as she could squaze hersel, and the very cause o' the dith o' poor Rory, and Tooley O'Shane into the bargin.

Och, f.a.gan, niver ye see was the likes o' it in Ballyconnel afore. Whin the sherry was for cuttin the alter and littin the corps o' poor, daar Mullowny down into the sh.e.l.l, that was all riddy below, the Mullownys swore they would have the body, for a riglar birrill, and a wake, and a keena, ye see--and the O'Shanes swore it should go to the risirictioners, to be made into a menotomy. Then for it, it was--sich a cursin and swaring and howling--sich a swingin o' shillalies, sich a crackin o' pates, sich callin upon Jasus and the blissid mither, sich a scramin o' wimmin and childer, niver was herd afore in county Cavan. The sherry he gat on Molly Mahoney's little table to read the ryot act, and whin he opunt his mouth Phelim Macfarland flung a rottun egg atwaan his taath preceesly, and brot im to a spaady conclushon.

Poor Rory's vinrable oult mither was carried aff and murthered in the side o' the hid, wid a stone mint for the sherry, o' which she recovered diricly. They tried to kaap her quiet in her shanty, but she took on so gravous, that they let her attind the pittin up--poor ould sowl--she sed she had attinded the last moments o' her good man, and both her childer, Patrick and Pether, whin they wur pit up the same way, and it was not the like o' her to hart poor daar Rory's faalings onyhow.

Dolly Macabe was saved by a myrrikle, ye see. She took out wid her her siven childer, leading little Phelim by the hand, wid her babe at the brist, and hersilf in a familiar way into the bargin. She was knocked ower and trampled under the faat o' the fellies as was yellin and fitin, and stunted out o' her raason intirely. Only jist think o' it, f.a.gan daar, when she kim too, not one o' the childher was hart in the laast, nor Dolly naather; and the first thing she asked wos, whose was the two swaat babes, lyin together, and they toult her they war her own. Ye see, Patrick O'Shane and some more trod upon Dolly Macabe and hastened matters a leetle, and she was delivered o' twins, widout knowin anything about it.

They gied her a gla.s.s o' whiskey, and O'Flaherty, the baker, pit the swaat babes in his brid cart, and Dolly, who priffird walking, wint home as well as could be expected. All the Macabes have ixcillint const.i.tushons, and make no moor o' sich thrifles, than nothing at all.

But its for tellin the petiklars I'm writin. As I toult ye, twas about the widdy Magee. Rory toult more nor fifty, for a waak afore, that he'd have Tooley's hart's blood. When Tooley was found, it was ston ded he was, and his hed was bate all to paces, and Rory was o' tap o' im houltin im by the throte, wid a shillaly nigh by, covered wid blud, and the blood was rinnin out o' his eyes, and nose, and aars. Lawyer McGammon definded Rory, the poor unfortunit crathur, and he frankly admitted, that it was onlocky for him to be found jist that away, but he toult the jewry, that as he hoped for salvashun, Rory was an innysunt man, and he belaaved the foreman as guilty nor he. He brot half Ballyconnel to prove that Tooley was liable to blaad fraly at the nose, and was apt to have a rush o' blood to the hed, and he compared Rory to the good Summeritan, and sed he was there by the marest axidunt in the warld, and was tryin to stop the flow o' blud by houltin Tooley by the throte.