XI.

(Vol. II., page 182.)

THE CASE OF WILLIAM FOSTER.

Letter of Governor John A. Dix to Rev. Stephen H. Tyng, D.D. State of New York, Executive Chamber,

Albany, March 17, 1873.

REVEREND AND DEAR SIR,-I have given to the representations contained in your letter my most earnest attention; and I have carefully examined all the testimony, the official papers, and all the statements which have been made to me in the case of William Foster, who lies under sentence of death for the crime of murder.

In a recent case, not unlike his, I said I was willing to have it understood that circumstances of a very extraordinary nature would be needed to induce me to interpose for the purpose of annulling the deliberate and well-considered determinations of juries and courts.

I find no such circumstances attending the criminal act of Foster, his trial, the verdict, or the decision of the Courts by which the record was reviewed.

The public interest which has been and is still felt in this case, the extraordinary efforts which have been made to procure a commutation of the sentence, the publicity given to these efforts, and the long period of time-now nearly two yearswhich has elapsed since the crime was committed, make it proper for me, before communicating to you my final decision, to state the circumstances and the considerations on which it is founded.

Foster and Putnam, his victim, met in a railroad car in the city of New York. The latter had two ladies in his charge; and, in consequence of certain annoyances by the former, remonstrated with him on his conduct. It does not appear that Putnam offered him any provocation. Foster, who had been on the front platform, entered the car and sat down by Putnam, asking him several times how far he was going; and when the latter declined to answer and turned away, obviously desiring to avoid a controversy, Foster said, "Well, I am going as far as you go, and before you leave this car I will give you hell."

He then returned to the front platform and asked the driver if he had a car-hook, saying "he would learn him (meaning Putnam) his business when he gets off the car; he would learn him to keep his place." When the car stopped Foster seized the car-hook, telling the driver, who tried to stop him, to "go to hell," walked the whole length of the car on the outside, attacked Putnam, who had just got out, and struck him two blows on the head, one of which was fatal.

They were together after the first conversation between them, while the car was passing from the vicinity of Twenty-ninth Street to Forty-sixth Street, not far from three-fourths of a mile, embracing too long a period of time to ascribe the criminal act to the sudden impulse of passion, or to exclude the presumption of premeditated design. The fatal blow was given with an iron rod, which was proved by the result to be a deadly weapon. It is more than two feet in length, having at one end a double coil of iron, from an inch and a quarter to an inch and a half in circumference, and is capable, in the hands of a man of ordinary strength, without any extraordinary effort, of fracturing the skull at every blow. Foster had been a conductor on one of these street cars; he must have known the capacity for injury of the weapon he deliberately chose, and the jury might rightly presume that he intended to do what he took the most effectual means within his reach to accomplish.

The murder was committed on the 26th of April, 1871; the trial began on the 22d of May ensuing; the verdict was rendered on the 25th, the sentence passed on the 26th, and the 14th of July was fixed for his execution. Early in July application was made for a commutation of the sentence, and on the 6th a writ of error was filed, and a stay of proceedings granted. On the 21st of February, 1872, the judgment was affirmed at the General Term in the city of New York, and the 22d of March was fixed for the execution of the sentence. The application for a commutation was renewed, and was denied by my predecessor on the 4th of March. On the 11th of that month a writ of error to the Court of Appeals, with a stay of proceedings, was granted; and on the 21st of January, 1873, the judgment was affirmed by the last-named tribunal.

Thus it appears that all the remedies provided by law for contesting the rulings of the Judge before whom the trial took

place have been exhausted, and that his action has been affirmed by the two judicial tribunals having cognizance of the case, the latter the court of last resort.

The question presented to me is, whether I shall interpose the executive authority of the State and commute the penalty of death, which the law awards to murder, for imprisonment for life.

In support of the application it is urged that the verdict was accompanied with a recommendation to mercy, and that it is the duty of the executive to consider the one as a part of the other. This is, no doubt, so far true, that it should commend the case to his most careful and deliberate consideration. It is an appeal which he should recognize by reviewing all the circumstances, not only with a willingness, but with a desire to find in them a justification for the exercise of his clemency. There is no responsibility under the law on the part of juries in making such recommendations. On the other hand, the responsibility of the executive, in acting upon them, is very delicate, whether they be considered in reference to the opinions of the jurors who make them, or to considerations of public policy, which, as a conservator of the good order of society, he is bound to regard in applications to mitigate penalties annexed by the statute to crimes. My predecessor, no doubt, under the influence of such considerations, or from the belief that the criminals were justly condemned to death, refused in three instances to commute their sentences, although recommendations to mercy accompanied the verdicts.

The application is supported on another ground, which is more embarrassing, and which has been to me a source of great anxiety in coming to a right decision. A large majority of the jurors, part of them by affidavit and others by written statements, declare that some of their number did not believe Foster intended to kill Putnam; that they thought imprisonment for life as great a punishment as he deserved, and that they would not have agreed to render the verdict of murder in the first degree, involving the penalty of death, if they had not been assured by one of their associates, who professed to have a knowledge of the law, that such a verdict, accompanied with a recommendation to mercy, would insure a commutation of the sentence. With two exceptions, these statements are all recent;

and the two exceptions bear date more than ten months after the murder was committed. Two applications, as already stated, were made to my predecessor for a commutation of the sentence, one as late as March, 1872; and there is no evidence that any such statement was presented to him, nor is there any reference to one in his letter denying the latter application.

It is a settled principle in this State that ex parte affidavits or statements by jurors, impeaching the verdicts they have rendered under the responsibility of their oaths, will not be received by the courts in support of applications for new trials. Indeed, I believe it may be stated as a rule far more widely accepted, that the courts will not suffer a jury "to explain by affidavit the grounds of their verdict to show that they intended something different from what they found." Whether the rejection of such affidavits and statements be founded upon the belief that, by reason of the protracted deliberations of juries in many cases, and the differences of opinion to be reconciled in coming to the requisite unanimity, they could be easily procured; or whether they be rejected upon the ground that statements made under no responsibility cannot be permitted to overthrow adjudications made under the highest, it can hardly be doubted that they would tend, if admitted, to unsettle the administration of justice, and render executions under capital convictions nearly impossible. Some of the reasons which govern courts in refusing to receive such statements in support of applications for new trials ought, in my judgment, to govern the executive in applications for the commutation of sentences. In the Judge's charge to the jury he said, "Before you can convict the prisoner of murder in the first degree you must be satisfied from the evidence, not only that Foster killed Putnam, but that he did so with a premeditated design to effect his death;" and he was thus convicted by the jury upon the responsibility of their oaths. Ought the same persons to be permitted nearly two years afterward to show by ex parte affidavits and statements, made under no legal responsibility, that their verdict was untrue?

The precedent of admitting after-revelations of the secret consultations of the jury-room, for the purpose of annulling verdicts rendered as true under the solemnity of an oath, would be perilous in any condition of society; and, in the present de

fiant reign of crime, such a precedent would be fraught with infinite danger to the public order.

Every proper appliance which wealth and the influence of a most estimable family could command has been employed to save Foster from the scaffold. The case has been carried through all the courts by eminent counsel; the opinions of gentlemen learned in the law, and earnest applications from respected clergymen and citizens in good standing, have been brought before me; and the widow of the victim has come forth from her solitude to plead for the life of her husband's murderer. I have given to these appeals my most thoughtful consideration. If there were any reason to doubt that the law was rightly ruled at the trial, or that the evidence fully warranted the jury in rendering the verdict of murder in the first degree, I would give the criminal the benefit of that doubt. But, with a firm conviction that there was no error in either, and that there is nothing in his case which can justly commend it to executive clemency, I cannot interpose to mitigate his punishment.

I am pained to say this to you, appreciating as I do your sincerity and the purity of your motives; and I desire to announce my decision to yourself and the other respected clergymen who have joined in interceding for him, in the spirit of kind consideration due to those whose sacred vocation teaches them to look with tenderness upon the frailties of others.

To the representations of the gentlemen in secular occupations who have appealed to me in his behalf I have paid the same respectful consideration; but I am constrained to think that they have neither given sufficient forethought to the consequences of what they ask, if it were granted, nor considered that with the best intentions we may, by misdirected sympathy, contribute unconsciously to endanger the public safety and our own. I am asked, in disregard of the evidence and the judg ment of the highest judicial tribunal in the State on the law, to set aside the penalty awarded to the most atrocious of crimes. It seems to me that the inevitable effect of such a proceeding on my part, under the circumstances of this case, would be to impair the force of judicial decisions, and to break down the barriers which the law has set up for the protection of human life. To this act of social disorganization I cannot lend the