Page images

ertson and John Moore, two lawyers that ap- ciary has thus exercised its judgment and peared for him, came to Court and designed consigned the convict to the executive departto have him convicted. He regards them, un-ment, it can exert any other power in the case. der his delusion as his enemies.

We therefore beseech your excellency to reconsider the case of said Baker and grant him a pardon, which, we have no doubt, will meet the public approbation.


From observation and testimony, we believe every fact stated in the above petition, to be true.



[ocr errors]

In some of the States of our Union, and in
New York especially, there is statutory provi-
sion for trying the question of insanity in
just such a state of case.
But there is none
such in Kentucky. And I apprehend that
here the only object of an inquisition would
be to subserve the power of respiting or par-
doning by the Governor. The only reason
why insanity, after sentence, should suspend
execution is because the insensate is not in a
proper condition for prosecuting his claims to
a pardon.

3rd. In Kentucky, has not the Governor alone power to suspend execution after judg ment and the adjournment of the convicting court? The prisoner is then in his exclusive custody-for he is the head of the executive department, and the jailor is but his subaltern agent or minister, and is subject to his supervision and control. And who but himself can change that imprisonment, or rescue from the judgment as rendered?

LEXINGTON, 20th September, 1845. My Dear Sir-I have just received yours of this morning, informing me that the Governor had authorized you to say, upon consideration of the petition presented to him the day before yesterday by Capt. Baker and his son Hervey, he is of the opinion that he has no official authority to institute, or direct any inquisition or legal inquiry as to the sanity or insanity of Dr. Abner Baker, or to order his removal from his present place of confinement for the purpose of any such inquisition. These matters, he thinks, belongs to the judiciary, and to them must be left the duty of applying whatsoever proceeding or remedy the law allows. The Governor further says, he would be glad to hear the grounds upon which you supposed him authorised to institute such an inqui-by the court, and authorise and compel the sition, or to remove Dr. Baker."

Availing myself of this invitation by the Governor, I will, through you, as his selected organ of communication on this occasion, sug. gest the general considerations which induced me to suppose that he has legal authority to do all the petition alluded to requests him to do.

4th. As the Governor has the sole power to pardon and liberate the prisoner, either absolutely or conditionally, he surely must possess all subordinate or subservient power comprehended in, or subsidiary to the exercise of this plenary power. If he can liberate him unconditionally, he can certainly do so on condition that he be found a lunatic and be placed in the Asylum; and consequently, as the prisoner cannot be placed in the Asylum without an inquisition, the Governor can authorise the inquisition and the prisoner's removal so far as it may be proper--and if the inquisition find the lunacy, the Governor can alone remit the imprisonment and punishment adjudged

jailor to surrender the custody of him, and deliver him to a different custody. And this he can do under his exclusive power to respite and pardon.

5tth. Why, without the authorisation of the Governor, would a judge hold an inquisition, when, even if the prisoner be found a lunatic, the judge cannot remit the judgment of 1st. If a man, sentenced to death, be in-conviction, nor substitute any other custody sane after judgment, the law requires that he should be respited until he shall become compos mentis-and his execution, when insane, would be wrong and inconsistent with the policy and justice of the law.

than the legal imprisonment adjudged against him? The judiciary, in the case of Dr. Baker, has no power now to suspend or remit the punishment adjudged against him. The only constitutional power is in the Governor. It 2nd. In England, the Judge has power to seems to me, therefore, that the Governor unrespite on the ground of insanity whenever doubtedly possesses and ought to exercise the that disability can be pleaded against enter- authority to direct the inquisition which has ing judgment, because the case is still open been called for by the petition, as he alone and under the power of the court. But here can give the full and proper legal benefit of in Kentucky the judgment fixes the time and a finding of lunacy, and no one but himself can place of execution, and gives the only war-know what he will do in the event of such a rant for execution and consequently, after finding, which can have no beneficial effect such judgment and the final adjournment of unless he shall choose to grant a respite or the court, the judge who rendered the judg. pardon, and which finding may also be dement, is, as to that case, functus officii, and sired by him to enable him to decide whether has no more jurisdiction over it than any other he ought to grant a respite or pardon. circuit judge of the State. And it is worthy 6th. I apprehend that a habeas corpus from of grave consideration whether, after the judi-a judge would not be obeyed without the Go

vernor's endorsement-and if he have power exercise this unqualified power underthus to effectuate it, he must have power to standingly, justly, and effectually. But, if the direct the removal for the same purpose with- Governor persist in a different conclusion, we out the judicial writ, which, without his con- must try the Judiciary. And in that event, may currencey, would be ineffectual. And if a we expect an Executive order to the jailor to formal writ shall be required, (though I can- obey the mandate of the Judge? * not imagine why,) may not the Governor say These, sir, are, very hastily, my general to the jailor that, in the event of its being pre-views-and which I desire you to submit to sented to him, he shall obey it? And why, the Governor in his official capacity. I have and for what end, or with what hopes, should no other authorities than the reasons I have an application be made to a judge without the suggested and the probable and almost Governor's official sanction and co-operation? certain and very singular circumstance No judge now can have jurisdiction to hold an also that, while the Judiciary cannot act withinquisition for any other purpose than to en-out executive authority or sanction in advance, able the Governor to grant a respite or a con- if the Governor, doubting his own power, ditional pardon and change of custody. Ought shall refuse to act, a man known to be insane not the Governor then to institute this inquiry may be unjustly hung to the discredit of the -and can it be either legally or availably Commonwealth, to the mortification of its just had without his direction for the purpose of citizens, and to the disparagement either of its subserving his official action? functionaries or its jurisprudence. 7th. Having said that there is no statute of We care not about the form of the inquisiKentucky providing for a judicial intervention-whether it be by the Governor's own intion in a case of insanity after judgment of spection, or by proof, or trial. But an inquiconviction, may I not now add that our habeas sition we ask, and to one, in some form, we corpus statutes constructively deny the power are, as we humbly think, undoubtedly entitled. of a judge to issue a habeas corpus in favor of And we are sure that we cannot procure one a convict imprisoned under a final judgment without Executive sanction, and co-operation for felony, and murder especially? See act nor for any other end than Executive informaYours, &c.,

of 1797.

In such a case there is no revisory power nor any authority to prevent execution elsewhere lodged by our law than in the Executive. And should a Judge strain a point and issue such a writ, and hold an inquisition finding lunacy, what will he then do with the

tion and action.


To Hon. John J. Crittenden.
[A true copy.]

Sept. 29th, 1845.


Judge Buckner for that inquisition. The following letter will explain the purport of this petition and the response of Judge Buckner.

Dear Governor :-If you intend to permit prisoner? He cannot avert the sentence of the my son to die, for God's sake intimate it to law by depositing the prisoner in an Asy-me, and relieve me from this suspense. lum-for, by putting him there, the judgment is suspended or nullified-and the constitution concedes this power to the Governor only. As soon as it was ascertained that the GoFor what purpose then will he hold the inqui- vernor had declined extending his constitusition? Certainly there can be no other than tional power to pardon Dr. Baker, and that he to furnish to the Governor a new fact entitling had further declined issuing the writ of inthe prisoner to a suspension of the judgment quiry-alleging that this power was vested in and a change of custody, which the Go- the Judiciary only-application was made to vernor alone can order. And how does the Judge know that the Governor desires this, or will recognise, or act on it? And after the inquisition, what is he to do with the prisoner? And whence did he derive authority to take him out of jail? And suppose the prisoner shall escape. Who will be responsible? He took him from Executive custody without authority, and had no such power of safe keeping as the Executive magistracy had. But if the Governor order him to be brought out for inquisition and he escape, there can be no complaint, because he was still, as before, in the Governor's custody, and might have been constitutionally liberated by him altogether.

LEXINGTON, Oct. 1st, 1845.

Dear Sir-Application has this day been made to me on the petition of a M1. Baker, sr., for a writ of habeas corpus in favor of A. Baker, jr., now under sentence of death by the judg ment of the Clay Circuit Court. The object of the petition is to have an inquest of lunacy. The effect of lunacy at the commission of the crime has already been tried, but the petition charges that he then labored under monomania, but that it is now total mania.

I am of the opinion that I have the power to hold such inquest, and would grant the writ, if it would not interfere with the execu Ition of the sentence of another Court. If he were now of unsound mind, it could be of no avail, unless you should thereafter think proper to interfere. But if you shall think proper to

It seems to me, therefore, that the Governor now has exclusive power in the case, and cannot doubt that it is sufficient for every purpose of respite or pardon, absolute or conditional. Having the exclusive power of respite and of pardon, he must have the power to employ all non-prohibited means which may be necessary and proper for enabling him to ever came from the Governor.

Neither any such order nor any answer

respite the execution of the sentence, I will grant the writ and direct the inquest as a means of ascertaining a fact to satisfy your mind. The object of the suspersion, at this time, is only to give time to hold an inquisition. Yours, &c.


the prisoner in time to suspend the execution, if he delayed granting the respire until the next day. He then remarked he had decided the case and would not take it up again-and when he was informed that the friends of Dr. Baker had been induced to believe that he intended to grant a pardon or further respite, from the impressions made by him on Dr. Baker's friends and his own relatives-and that When the above letter was presented to the he was awaiting the arrival of General DudGovernor, he observed that he would consider ley before he could decide upon the case-the of it by morning, (Thursday one day preced- Governor replied that he had "never intended ing the execution.) It was represented to pardoning Dr. Baker," that he had "no idea of him that it would be impossible to reach turning him loose upon the community,”

Gov. Owsley, Frankfort, Ky.


The wreck of God's image now before you, under trial for murder, entered the threshold of manhood with hopeful prospects of a long, useful and honorable life. Richly blessed with personal graces and mental gifts, he cast his lot among you, and commenced his professional career, as you all know, under a clear sky, beaming with gilded promises. But how deceitful often are the brightest hopes of men. Already he, whose young horrizon was so recently bright and promising, trembles on the precipice of a yawning gulf, under a black cloud that hangs portentous over his destiny. Doomed to the greatest of earthly calamities —an eclipse of mind—and, as a consequence of that tremendous misfortune, doomed to be the blind instrument of a brother's death-he is now also doomed to an ordeal rare, if not unexampled, in a land of justice, liberty, and law.

believing that no honest and enlightened jury
can, after a full hearing, feel authorized to
find him guilty of murder, as charged.
But the legacy of blood must do its full
work-and as one of its fruits, we behold the
appalling spectacle of four able counsel all
zealously seeking, in the name of the Com-
monwealth, the life of the accused. Appre-
hensive that the official organ-though known
to be faithful and competent-might not exert
a moral influence sufficient to insure the object
of the legacy, the prosecutors have employed
the celebrated gentleman of Madison-not still
sure of their victim, they also employed the
eloquent gentleman of Knox-and, “to make
assurance doubly sure," they have added to
this formidable array the shrewd and dexter-
ous gentleman of Laurel. Having already
the prepossessions of the county of trial, they
have thus secured, as far as they could, the
combined influence also of Madison, Knox, and
Laurel. And you have seen this four-horse
team pulling, as for their own lives, the heavy
load of this prosecution, and, at every up hill
step of the hired three, you might have heard
the whip of the $10,000 crack over their

We do not complain that the Commonwealth is represented by extra counsel-nor do we object to the unusual number. But we do rightfully complain that the hired supernumeraries have argued this case-not soberly and solemnly on the law and the testimony-but, by leaving the field of legitimate argument, and, by assumption and declaration, struggling to inflame your passions and deceive your judgment. It is a melancholy truth that, in some respects, they have all argued as if they were speaking to earn contingent fees and please their clients, instead of faithfully and candidly representing the commonwealth.— And, thus seeing money in one scale and blood in the other, we have cause to fear that the money will outweigh the blood, and that our cause may sink under the weight of a combination unsurpassed in activity and wealth.

The man he killed, influenced on his deathbed by a strange spirit of revenge, bequeathed $10,000 to insure his conviction and execution, promised freedom to a slave on condition that he would slay him, and, as a legacy to his own infant son, charged him to see that his victim should certainly fall by the hand of vengeance. Although he was tried and acquitted by an examining Court on the ground of insanity, and was then sent by his friends to a southern climate for the improvement of his health, yet the Governor of Kentucky, at the instance of some of the kindred of the deceased, issued a proclamation advertising him as a fugitive from justice, and the prosecutors offered a high reward out of this legacy of $10,000 for his apprehension. As soon as his honorable father saw that proclamation, he brought his unfortunate son to the jail of your county, in which he has ever since been most uncomfortably imprisoned at the peril of his life. But here he is, voluntarily surrendered for trial in the midst of a high and pervading excitement against him, produced, we know not how, in the county of his numerous, wealthy, and influential prosecutors-relatives of the deceased, and one of them the husband of a sister of the The gentleman from Madison, who opened accused. And to such an extent have this ex- the argument, devoted at least one hour to citement and prejudice run that it is not possi- the irrelevant purpose of proving the alarming ble to be sure of a sober and impartial trial; prevalence of crime and immunity, and the for you know that even cach of you avowed on importance of convicting and hanging "one of examination, that you had formed an opinion the ruffle-shirt gentry," and especially "a Docas to his guilt, and we all behold armed men tor or a Lawyer." Was he then representing wherever we turn our eyes. the Commonwealth? Does she desire unjust Yet, confident that the law and the facts conviction by such appeals? And when the ought to insure his acquittal, his friends deter-law and the facts require conviction, is it ever mined to hazard a trial even here and now-necessary and proper for her to make the

demagogue's harangue?

The guilty should such a course of argument as this should be be punished, and I know that too many have answered in a manner more light and ludicrous; escaped. But it is the art of lawyers, chiefly, and I will, in that way, give it and much else and not so much the ignorance and compas- like it, the finishing blow by an appropriate sion of juries, that has paralyzed the criminal anecdote. When the steam locomotive first law. And my friend from Madison must al- began to run from Lexington to Frankfort, a low me to remind him that no criminal advo- little curly-headed and horned animal with a cate within his range of practice has been more bobbed tail, while grazing on the poor lands instrumental than himself in preventing the near the latter place, seeing a car approaching condign punishment of the guilty. And I am him with its accustomed force and velocity, not sure that his resort, in this instance, to and thinking that this great "Lexington" mahis accustomed arts in defence of criminals, chine was no better than himself-though only may not do for the Commonwealth what he a scrub of the Franklin hills-fixed himself in has so often done against her-produce an un- the track and, drawing himself up for battle, just verdict. I am for upholding and enfor- gave it a triumphant butt as it approached him; cing the law. But does not this gentleman and, as might have been expected, he was know that the law is made for the protection of thrown several rods and effectually "used up;" the innocent even more than for the punish- at the sight of which a venerable gentleman ment of the guilty? We too invoke the law-exclaimed, that he admired the animal's courand in its name, and under its panoply, we ask for an acquittal; for we feel that nothing but God or the law can save the accused from the powers of destruction that are combined against him. It is not mercy so much as money that has effected the escape of criminals, and thereby encouraged crime. And the only danger now is, that money may produce the opposite result the condemnation of a guiltless man. And does the gentleman, suddenly changing from the advocate to the prosecutor, expect

age, but thought very badly of his discretion. Now, whoever has the temerity to butt against the Lexington Doctor and ridicule the facts and the law on which we rely, should remember the doom of the short-tailed bull. On this subject let the counsel take this coup de grace.

But the gentleman from Knox, after pouring alarm you by telling you that, like Hannibal, on you floods of eloquence, endeavored to young Bates had made to his deceased father, a solemn pledge to avenge his wrongs-and

to restore the law he has so much helped to paralyze, by hanging an insane man? And why does he so wish? Why now shall insani-that, as Hannibal had sworn that he would



ty be hung? And why has guilty sanity so that he would kill the prisoner at the bardestroy Rome, this youth had asservated often escaped the gallows through the gentle- thereby intimating that you ought to hang him, man's influence? "The love of money is the root of all evil!" It is this, more than anything come from the mouth of the Commonwealth? to prevent his being shot! And does this, too, else, that saves the guilty-and it is this, too, It is not only extraneons but signally unlucky. that the accused in this case has most to fear. Let it be remembered that, after the battle of The same counsel, not being able to meet Canna, Hannibal was compelled to desert Italy fairly the conclusive testimony of Dr. Richard-Scipio carried the war into Africa, vanquished son, assumed that he is himself rather insane him at Zama, drove him to inglorious exile on the subjects of phrenology and mesmerism and death, and destroyed Carthage-and that, -and told you that these "Lexington Doctors," years afterwards, Caius Marius of Rome, sat one of whom was brought here "to enlighten and astonish ignorant mountaineers," could look a hopeless exile, on its melancholy ruins. at you and through you, and feel your pulse have been war and bloodshed enough. But peace. We appeal to the law. There and your head, and "then tell you all you are, if the menaced crusade against the life of the and all you think and feel." Is this a grave accused shall be lawlessly waged, then, too, argument of our just mother, the Common- the war may be carried into Africa, and a wealth? Was there any testimony which could give even a color to these improper as-fall never to rise. proud Carthage, instead of devoted Rome, may sertions? I know that. Dr. Richardson has no faith in mesmerism, and but little in phre- The gentleman from Laurel also has gone nology. And, though he is a Lexington Doc-out of the way to excite and deceive. He has tor, I presume that truth from his lips will be read to you the Mosaic law on homicide, and as true in the mountains as in his own city. shown you that, by that law, the manslayer But he is "an enemy to free government," said could legally escape the avenger of blood the gentleman. And what if he be? Does only by fleeing safely to "a city of refuge." this impair the force of his evidence or tend to And does he wish you to understand that such prove the guilt of the accused? I will tell the is law here? If it be, the accused has reached accuser that Dr. Richardson is as devoted to a city of refuge. His country is that city, and the free institutions of his country as he him-you are that country and that refuge? And if self, and was risking his life in the North- you will determine his doom from the law, western army, in the year 1813, when we were and the testimony alone, we feel that he both at home learning or practising law. But is safe, and fear not the avenger of blood.

« PreviousContinue »