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Indeed, an examination of the first section of the article abore quoted will show that the legislature had probably no reference in that article to this latter class of prisoners. The first section is as follows, page 632:-
“Setox I. The common jails in the several counties of this state shall be kept by the sheriffs of the counties in which they are respectively situated, and shall be used as prisons
* 1. For the detention of persons duly committed in order to secure their atten. dance as witness in any criminal case;
“2. For the detention of persons charged with crime, and committed for trial; “3. For the confinement of persons duly committed for any contempt; and
“4. For the confinement of persons sentenced to imprisonment therein, upon conviction for any offence."
Persons imprisoned under sentence of death and awaiting execution are indeed included among those for whose custody the article makes provision, but their imprisonment is incidental, and it may well be supposed that is not regarded as a part of their punishment. From this view of the statute, I think it manifest that the spirit of the law does not apply to the prisoner confined in the county-jail under sentence of death, or of imprisonment in the stateprison, and awaiting execution or removal.
The condition of a human being under sentence of death is undoubtedly most fearful and unhappy. Our laws, content with the atonement of the prisoner's death, do not require or contemplate the addition of any circumstances of terror or unnecessary privation. They require duress only because it is necessary, and they enforce it only in such manner as is necessary to prevent the prisoner's escape or rescue. Humanity dictates that the prisoner's condition should be made as comfortable and cheerful as it can be consistently with this purpose. The chief consolation of the prisoner is derived from the visits of friends and humane individuals, and experience has shown, that of such visitation, the most consoling and most effectual in producing penitence and hope is that of ministers of religion. Hence it is that the duty of visitation is enjoined by the Christian religion itself. It is declared to be one of the grounds of acceptance by our final Judge --“I was in prison, and ye came unto me.” So far as my knowledge goes, no Christian sect has failed to enjoin the performance of this duty of visitation upon its ministers, while some of them, as the Catholics and Episcopalians, have rituals prepared for such occasions. What Christianity enjoins, our laws and customs both tolerate and encourage. From time immemo
rial, the judge has concluded the solemn sentence of death pronounced upon the prisoner, with the prayer, “And may the Lord have mercy upon your soul.” A custom as old and as uniform has sanctioned the visits of ministers of the gospel to prepare the prisoner for that “mercy” which the judge implores. Our statutes authorize the attendance of ministers at the execution; but we all know that their offices, however important, are then less desired and less important to the unfortunate convict than during the season of imprisonment which intervenes before the execution. Humanity, as well as Christianity, would condemn the sheriff or jailer who would refuse to the ministers of the gospel admittance to the convict's cell. But it
may be answered, that this privilege is not denied in the present case; that it is only insisted that it must be enjoyed in the presence of an officer who will see that it is not abused or perverted to defeat the cause of justice. And it will be asked: “Is not the precaution reasonable ?" I answer that it is reasonable where the religious faith of the convict and of the ministry he prefers does not object to such publicity. But it certainly is consistent with the spirit of toleration which pervades our free institutions, that the convict should enjoy the visits of ministers of his own faith, whatever that faith may be, whether Catholic or Protestant. It is well understood to be an article of the Catholic religion, that confession before death in order to be effectual to obtain the Divine pardon ought to be made to a priest, and that that confession must be made without witness. It seems to me that the same principle of toleration requires that the Catholics should be allowed their privilege. According to his faith, the solaces of such visitation are vain and a mockery, if they are not ministered by the functionary and in the manner which that faith prescribes. To refuse compliance with the peculiar manner which his conscience approves, is to deny the solace altogether. By the constitution, he is entitled to as free privileges in regard to creed as the Protestant, who believes that confession should be made in another form. As a Protestant, I should execrate the tyranny which in a Catholic country would deny to one of my countrymen, in a similar situation, the consolation of religion after the form approved by his own conscience; and, as an American, I should blush for the bigotry which would, upon any plea, deny to the Roman Catholic equal indulgence. It is not a sufficient reason
to say that the priest may abuse his privilege. Members of the society of Friends are permitted by law to give evidence upon their simple affirmation without an oath. It is no valid objection to that law to say that Friends, like other men, may affirm falsely.
So far as I have information, the rite of private confession has never been denied to Catholics in this country, and I should be unwilling to construe the section I have quoted as requiring such a denial. I have no belief that such a result was contemplated or foreseen by the legislature. The reason of the law does not apply, and I doubt not that the framer of the statute would be shocked by such an application of it. I do not hesitate, therefore, to say that “the presence of a keeper or inspector” herc referred to may and ought to be dispensed with, and that the prisoner ought to be permitted to make his confession and receive the solaces of religion, without being overheard by any other than his confessor and the great Judge of the living and the dead.
It is undoubtedly true that the sheriff may and ought to deny access to a priest, if he has good ground to suspect that it is his purpose to abuse it by enabling the prisoner to escape, and therefore it is that the law confers a discretion on the sheriff; and in cases where he has doubts, though upon insufficient grounds to justify a refusal of private conversation, he should adopt such other precautions as may be necessary to counteract the supposed design of the priest. In the present case, I am not informed that there is any such pretence. Mr. Gilbride comes recommended to me as a respectable, upright, and pious man.
It is chiefly for the purpose of affording opportunity for repentance and preparation for death, that our laws, unlike those of most other countries, prohibit the execution of the prisoner within a shorter period than four weeks after his conviction. That intervening period is expected to be devoted to preparation for death, and the instances are so rare as to excite astonishment where the prisoner does not invoke the spiritual aid of the ministry of his religion.
If Mr. Gilbride has misunderstood your views on the subject, as is not impossible, this communication is unnecessary, and I excuse myself for troubling you with it only upon the ground of solicitude that the prisoner may not, through any fault of the government, be deprived of the religious privileges he desires and needs. If, on the other hand, you have, as he supposes, decided that Mr. Gilbride can not be permitted to administer the appropriate rites of his church, I respectfully recommend that
Ι you reconsider the subject, and grant his application.
I am, very respectfully, your obedient servant.
TO THE SHERIFF OF THE COUNTY OF LEWIS.
RECEPTION OF PRESIDENT VAN BUREN.
STATE OF NEW YORK, EXECUTIVE DEPARTMENT,
Albany, June 30, 1839. Sir: I have this evening received your letter of yesterday, in which as chairman of a committee of the common council of the city of New York, you in vite me to participate with the common council and their fellow-citizens in the reception of the president of the United States in that city.
I might perhaps be content with declining to accept the invitation, upon the ground of other engagements, and the duties which will not permit me to be absent from this place. But as this would leave me liable to be misapprehended, I am obliged to add an explanation. I desire to do so without disrespect to the president, and with the highest respect for the common council.
Should the chief-magistrate of the Union favor the place of my residence with a visit, or should my duty call me into his vicinity, I should with cheerfulness and pleasure pay him all the respect called for by his public station, or properly due from mine. Nor do I intend to say or imply that the demonstrations of respect proposed by the common council are not justly due to him, both in his public and personal character. I can not consider the question of acceptance of the invitation tendered me, without reference to the public station I have the honor to hold; nor can I have misunderstood my fellow-citizens so much, as not to know that, whatever other circumstances may have moved their favor toward me, every public demonstration of their confidence I have had the honor to receive during my life, has proceeded in some measure upon the ground of my avowed disapprobation of his political character and his public policy. By no means intend
ing to express a doubt of the sincerity of his motives, and entertaining, as is most just, entire confidence in the purity and disinterestedness of the large body of my fellow-citizens who admire his character and approve his measures, I can not forget, in deference to his elevated station, that with a desire no less sincere than his to advance the best interests of the country, I have regarded his policy and measures as injurious to the prosperity and welfare of his native state, and that that state has honored me for firmly and frankly maintaining those opinions.
Nor can I forget that in carrying out the policy which has crowned, with imperishable honor, the name of one who was his and my most illustrious predecessor in the station assigned to me
a policy which is destined to extend the fame, enhance the wealth, exalt the condition, and immeasurably increase the happiness of the people of this state—the state administration at every step encounters an uncompromising hostility, proceeding from that powerful administration of which the president of the United States is the chief. While on the one hand the dictates of my judgment, and the conscientious desire to discharge faithfully my official obligations, enforce my adherence to that policy, and while on the other there exists no ground to anticipate an abatement of that hostility, it is manifest that my relations to the president can undergo no change. It would at any time, and under any circumstances, be an extraordinary demonstration of respect on the part of the chief-magistrate of this state toward any public functionary, were he to leave his duties at the capital to receive such functionary in your city; and such a demonstration by me, while those relations exist, would afford evidence of inconsistency and insincerity.
I could have wished, either that the invitation of the committee had been informally made, or had been communicated to me on an early day, so that I might have advised its withdrawal; and thus the necessity for this explanation would have been avoided. But I can not bring myself to regret that I am obliged to decline the invitation.— Our republican institutions can never be more safe than when the discussion of public measures, and of the character of public men, is so vigorous as to bring into the offices of the general and state governments individuals whose relations prevent the possibility of combination between them to perpetnate power conferred only for the public good.