CONKLING AND FOLGER-1867-1868 137 



you, Senator Conkling." A most hearty response 

 followed, and so began my closer acquaintance with the 

 new senator. 



Mr. Conkling's election followed as a thing of course, 

 and throughout the State there was general approval. 



During this session of 1867 I found myself involved in 

 two rather curious struggles, and with no less a personage 

 than my colleague, Judge Folger. 



As to the first of these I had long felt, and still feel, that 

 of all the weaknesses in our institutions, one of the most 

 serious is our laxity in the administration of the criminal 

 law. No other civilized country, save possibly the lower 

 parts of Italy and Sicily, shows anything to approach the 

 number of unpunished homicides, in proportion to the 

 population, which are committed in sundry parts of our 

 own country, and indeed in our country taken as a whole. 

 In no country is the deterrent effect of punishment so 

 vitiated by delay ; in no country is so much facility given 

 to chicanery, to futile appeals, and to every possible means 

 of clearing men from the due penalty of high crime, and 

 especially the crime of murder. 



It was in view of this fact that, acting on the advice of an 

 old and able judge whose experience in criminal practice 

 had been very large, I introduced into the Senate a 

 bill to improve the procedure in criminal cases. The 

 judge just referred to had shown me the absurdities 

 arising from the fact that testimony in regard to charac- 

 ter, even in the case of professional criminals, was not 

 allowed save in rebuttal. It was notorious that profes- 

 sional criminals charged with high crimes, especially in 

 our large cities, frequently went free because, while the 

 testimony to the particular crime was not absolutely over- 

 whelming, testimony to their character as professional 

 criminals, which, in connection with the facts established, 

 would have been absolutely conclusive, could not be ad- 

 mitted. I therefore proposed that testimony as to char- 

 acter in any criminal case might be introduced by the 

 prosecution if, after having been privately submitted to 



