Washington October 23rd 1802.
I am conscious that little attention on ordinary occasions are due to annonomous writers, yet the importance of the subject, aided by a belief that the writers name if known would add little (if any) weight to the Arguments proposed, induced the adoption of the present mode without the fear of incurring Censure, because I am sensible truth will never be disagreeable to you in whatever manner it shall be conveyed—If the subject should be deemed by you unworthy of your further Notice, I retain too exalted a sense of your character to believe any Name, however high on the list of fame would divert you from the Strict line of your duty.—Under these impressions I approach the Threshold of the organ of a Government, founded on the purest principles of Justice, an organ faithfull to the cause of humanity in general and the distressed in particular—I say Sir, I approach You in behalf of James McGurk now under the dreadfull sentence of death, in doing which, let me be permitted to believe that the subject is not one of the least which occupies daily your time and care, let me be permitted to hope that your decision on this important case will be favourable to humanity, finally let me be permitted to hope that the infliction of a sanguinary punishment will be averted.—Your penetration and sound Judgment, has I am persuaded long since taught you to contemn the savage Cruelty of Laws founded during the Ages of Gothic ignorance & barbarity, Laws which in this Age of reason and experience ought to be expunged from the Codes of Civilized nations—The Crime of which this unhappy man is convicted is confessedly of the first Magnitude, Murder, by the Most eminent civilians has long since been defined, to give a definition here, would be both superfluous and Presumptuous—I shall content myself, with merely stating facts, by which with the force of your own Judgment you will readily perceive that his crime has been mistaken.—from the Testimony of every Witness it appears that death was occasioned by a-buse and ill-treatment at various times yet from no one Witness nor from their Testimony Collectively can there be found a single circumstance which would lead to a belief that the death occasioned was intended, in his most unguarded moments, when rage had full and unrestrained controll of his mind, such a Wish or such an intention never escaped him—How widely different is a death thus occasioned from one premeditated and intended, the latter alone constitutes the Horrid Crime of Murder, the former assumes both in Law & equity a milder term, and it follows of course a different Punishment.—It is not denyed but that punishment severe and exemplary is due to the offense, and it is by no means contended that his ignorance as to the extent and consequences of his cruelty should be plead in Justification.—yet I shall ever hold it absurd to say that his punishment ought to be equal to that inflicted for a Crime committed intentionally and with malice aforethought.—If therefore from any cause Whatever, it has been neglected by those whose duty it is to guard by equal Laws the rights of the Citizen & thereby has placed him who commits a Crime by accident, on the same footing with him who commits a Crime intentionally, the Organ of the Constitution wisely placed to correct errors of the kind, is doubly bound to prevent the evill, he is bound to interfere for the preservation of the injured rights of the Citizen, and he is equally bound to use his endeavours to cause the enacting of Laws more congenial to reason & Common sense, Laws in which crimes are recognised in their various grades and punishments prescribed adequate to their extent.—
It is not a novell thing to deny the right of any human authority to deprive a fellow creature of Life on any pretence whatever, the folly cruelty and injustice of such a measure, has by many able and wise men been often and fully proven, both from reason & its ablest coadjutor Religion—nay so powerfull and unanswerable are the arguments in favour of the principle, that the most strenious advocates for sanguinary Punishments, have been obliged to excuse themselves for a continuation of the Horid practice, with alledging, that others are detered from the Commission of similar Offenses, this poor attempt at a Justification, like all others in support of any cause opposed to Humanity & sound reason, will be found futile and untenable.—for let me ask, does the frequent and sanguinary Punishments in Europe, lessen the number or limit the extended catalogue of Crimes? rather let me ask if they are not Multiplyed.—Permit me to claim for a moment your attention to the Penal Code of Pennsylvania, the Mildness of which, was considered by some of the first characters of that State as the production of a few Visionary Philanthropists, and misguided Legislators, and for some time were treated as such, till at length reason dawned, and what was considered folly and Weakness after being submitted to a fair trial the wisest of her citizens, acknowledged with a Candor that will ever do them honor, their ignorance of human nature, they saw at once, that violent and oppressive Laws had numerous victims, and it was found to be a Melancholly truth, that the more sanguinary the punishments, the more numerous & attrocious were the Crimes.—Murders of the most agravated nature were committed in the streets of their most populous Cities, under the Rigid system—while similar crimes under their present code are scarcely known, and it is a fact which will be recorded to the praise of Pennsylvania in the fair page of faithfull history, that Ten Executions has not taken place in the whole state for Ten Years last past.—Ignorance alone will inquire the cause.—
After having thus far trespassed on your time, I hope you still have patience to travell with me onward to the point. After denying the Policy and proving the injustice and Cruelty of inflicting death for any Crime, after admitting the unhappy McGurk deserved punishment, let us see if his Sufferings already are to be disregarded, let us examine them and I am pursuaded little more if any thing is due to society—On the 15th. day of January last the unhappy man was committed to the Jail of this City—. Am I to expose to the World the situation of this place, am I to tell the Chief Magistrate of the United States what a confinement he has endured.—ye Religious, ye humane and benevolent inhabitants of Washington have ye subjected yourselves to the just reproaches of insulted humanity—ye have—the extreeme sufferings of a human being imperiously demand it—the violated rights of humanity require it—the unhappy prisoner is now numbering the 10th. Month of his sufferings and at this moment confined in a Room scarcely seven feet square, loaded with near 60 ℔ of Irons—his Ears assailed every hour of the day, nay momently with the most obscene expressions and horid Imprications & his small appartment where he breaths a little air, covered with filth issuing from an adjoining apartment* (fill’d with Criminals and runaway Slaves) under these disadvantages & under an accumulation of poignant distress, he has to prepare for the great and awfull change, with Death staring him in the face, its terrors momently increased as with hasty strides it approaches his dreary Cell.—Where is the man who views this picture, the faithfull representation of the original whose heart does not relent, is there a man so callous to the dictates of Humanity, that does not pity,—that does not forgive—Parents Brothers, Kindred and friends, of ever rank and station in life let me call to your recollection, that the victims destined to drink the very dregs of the bitter cup of affliction is as uncertain as death itself; no case ever called more loudly for the exercise of this unerring rule, “—do to others as you would wish others do unto you,” than the present.—Were I to address myself in such terms to the ignorant and thoughtless I should receive their well deserved ridicule. but in addressing the Chief Magistrate of the United States I feel a confidence that they will be duly appreciated.—the truths here unfolded and exposed to view will be regarded—the attempt to save a fellow Creature from a Horrid & violent death by the unering rules of Reason & candor, deserves and will receive due attention—no subscription have been asked for, or raised to aid in deceiving the President, no Quibbles have been resorted to in support of this Cause, Justice and humanity Pleads—Under these impressions I have volunteered my humble efforts, they are feeble indeed yet still may aid in prolonging the days of McGurk.—they may afford the means of our beholding him a good Citizen and a reformed man,—Will the Sacrifice on the Alter erected by Ignorance and dedicated to false prejudices obtain more—It will not.—and I am pursuaded should the sufferings of this unhappy man be made known, and sufficiently promulgated there will be found few indeed who would resist the pleasing Satisfaction of eagerly embracing the opportunity of remitting the cruell sentence—To Conclude—Thursday next is the day appointed; the period is fast approaching and before this reaches you another day will be taken from the few that now remains—Let not the clamors of the Idle and disolute. (who had rather witness the dreadfull scene of an Execution than be the bearers of a Pardon) be heard by you, let the Still voice of reason, still retain her influence over your mind, and I feel assured that the issue will be favourable to cause of humanity—
With a well founded hope that you will Pardon me for the trouble I shall give you, I wish you every blessing which it is possible for the good and virtuous to enjoy and with sincerity subscribe myself your,
RC (DNA: RG 59, GPR); at head of text: “To The Pressident of the United States”; endorsed by TJ “Anon.” and “Mc.Gurk’s case,” and so recorded in SJL with 26 Oct. as date of receipt; also endorsed by TJ “Woodward”; with clerk’s endorsement for TJ’s 21 Aug. stay of execution to 28 Oct.
Deeming it “the wish of every good government to reclaim rather than to destroy,” the PENNSYLVANIA legislature reduced the number of capital crimes in 1786, and, by a statute of 1794, divided the crime of murder into two degrees. Under the 1794 law, first degree murder had to involve premeditation or be committed in conjunction with another serious offense, and was the only crime punishable by death. During the nineteenth century, other states followed Pennsylvania’s example in reforming their systems of punishment (David Brion Davis, “The Movement to Abolish Capital Punishment in America, 1787–1861,” American Historical Review, 63 , 23–46; James T. Mitchell and Henry Flanders, comp., The Statutes at Large of Pennsylvania from 1682 to 1801, 16 vols., [Harrisburg, Pa., 1896–1911], 12:280–90; 15:174–81).
VOLUNTEERED MY HUMBLE EFFORTS: although the letter printed above is not in Augustus B. Woodward’s handwriting, TJ’s endorsement associated Woodward with the document. Some of the phrasing used by “Friend” is similar to wording in documents that Woodward composed. For example, Woodward’s letter to TJ of 16 Aug., the petition of Woodward and others printed at that date, a letter from Woodward to the editors of the Washington Federalist, and “Friend” all described James McGurk as “unhappy.” The petition and “Friend” said that McGurk was “loaded” with irons, mentioned “humble” efforts to aid the condemned man, referred to “rigid” penal systems, and argued that McGurk’s killing of his wife was not “premeditated and intended” (“Friend”) or “premeditated and intentional” (the petition). In the Washington Federalist, Woodward advanced an argument against capital punishment that foreshadowed the reasoning of “Friend” in the letter above. In that discussion, Woodward, like “Friend,” called the death penalty “sanguinary” and pointed to Pennsylvania as a model of reform. In a second piece for the newspaper, Woodward argued that the president must be able to grant clemency “unbiassed by clamor and dissention,” a sentiment echoed by “Friend” at the end of the letter printed above (Washington Federalist, 1, 8 Sep.).