arV 
 
 17554 
 
CORNELL 
 
 UNIVERSITY 
 
 LIBRARY 
 
 GIFT OF 
 
 Benno Loeviy 
 
y Cornell University Library 
 
 The trial of Robert Swan 
 
 ., 3 1924 031 256 104 
 olin.anx 
 
B Cornell University 
 f) Library 
 
 The original of tliis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924031256104 
 
THE TRIAL 
 
 ROBERTSWAN 
 
 CHARGED 
 
 WITH THE MURDER 
 
 OF 
 
 WILLIAM 0. SPRIGG, 
 
 l\ • ■■■ 
 
 JN THE 
 
 biRCUIT COURT FOR WASHINGFTON COUNTY^ 
 JULY TERM, 1853. 
 
 HAGERSTOWN : 
 ilEAKD & WILLIAMS, "PEOPLE'S C*^N" OFFICE: 
 
 1853-; • ■ 
 
COPY RIGHT SECURID AGCOKDING TQ lAW. 
 
PREFACE*. 
 
 The Irial of Robert Swan, charged with the Murder of Wil- 
 liam O. Sprigg of Jos., was commenced in the Circuit Court for 
 AUpgany County at the April Term, 1852. Judge Perry — the 
 presiding judge, fefeling himself disqualified to sit in the case, 
 in consequence of the relations between himself and the prison- 
 er's family — declined to act as judge; and the counsel for thp 
 prisoner and Mr. Gordon, the State's Attorney for Allegany 
 County, by agreement, selected the Hon. Joseph I. Merrick of_ 
 H'agerstown, to preside. 
 
 On the 6th day of May — Judge Merrick on the bench — the 
 trial of this exciting, and profoundly interesting case was com- 
 menced in Cumberland. 
 
 The State's Attorney having applied to the Governor to ap- 
 point counsel to assist in the prosecution of the case, Henry 
 May, Esq., of Baltimore City was appointed, and appeared at 
 the trial iri behalf of the Stale. 
 
 Ex- Gov. Francis Thomas, William Price, George A. Pearre, 
 Daniel Blocher, Thomas Devecmon and J. P^ Roman, appear- 
 ed for the defence. On the 10th day of May, after two jurors^ 
 had been sworn, Mr. Gordon moved the Court, that the record 
 in this case be transmitted to the Circuit Court for Washington 
 County. And sustaining his motion by his affidavit, that a fair 
 and impartial trial of the cause could, not be had in Allegany 
 County, the Court ordered the record to be transmitted to 
 Washington County, and the case to be tried there. 
 
 On the following day, after considerable argument, Robert 
 Swan was admitted. to bail in the sum of $30,000 to appear for 
 trial at the Circuit Court for Washington County. 
 
 At the July term, 1852, of that Court no jury having been 
 empannelled, and no case of any kind being tiied, this case was 
 continued until the November term. 
 
 At the November term the prisoner was arraigned and plead 
 "Not Guilty." But Judge Merrick coRCeiving himself ex- 
 ofEcio in the case, he having been selected to try the case in 
 Allegany and not in Washington Coupfy, the cause stood with- 
 out a Judge to try it. Mr. Harbine, the State's Attorney for 
 Washington County, proposed to the counsel for the defence, 
 that they select a Judge to try the case as had been done in 
 Allegany. The defence refused to enter into such agreement. 
 The State then requested the Clerk to notify Judge Nelson, of 
 the adjoining Circuit Court, of the predicament of the case, 
 
IV. 
 
 ■whose duty upon such notice, under the Act p,f Assembly, l862, 
 ch. 67, is to appoint some person to try any case where the pre- 
 siding Judge is disqualified, from any cause, from sitting, and 
 ■where counsel cannot agree as to selecting another. The recog- 
 nizances were then respited, and the case continued until the 
 March tp,i:m, 1853. 
 
 '^'be qionft^el for the State and for the defence appearing at the 
 March term, it was discovered that Judge Nelson had failed to 
 secure the services of a judge in this case. The season of the 
 year being particularly unfavorable to the accomplishment of the 
 purpose, as most of the Courts in the State were either then in 
 session or had |ust closed, and the profession everywhere unusu- 
 ally pressed with business. 
 
 The case was again continued until the July term. And the 
 Hon. John S.Tyson, of Howard County, having been duly 
 appointed, appeared in Court at the July terra, 1853,, qualified, 
 and took bis seat as Judge in the case of the State vs. Robert 
 Swan. 
 
 Mr. Price, for the defence, stated to the Court that in conse- 
 quence of the uncertainties and delays attending this, pase hith- 
 erto, the witnesses were scattered, to th^ic hoines i,n various parts 
 of the Union, and the prevalence of the cholera in the immediate 
 neighborhood of Hagerstown, rendered it exceedingly improbable 
 that the attendance of those nearer at home could be had at the 
 Court at this time, and proposed to postpone the case until the 
 first Monday in September. To this the State's Attorney agreed; 
 and the case was accordingly postponed. 
 
TRIAL OF ROBERT SWAN. 
 
 MONDAY, September 5. 
 
 The Court was called at 11 o'clock, a. M., His Honor Jiidgs 
 Tyson on the Bench. On the part of the State, appeared as 
 council, Henry May, Esq., of Baltitnore city, present by special 
 appointiiicnt of the Governor, Thomas H^irbine, Esq., Prosecu- 
 ting Attorney for Wsshington county, and J. H. Gordon, Esq., 
 Prosecuting Attorney for Allegany county; on the part of the 
 defence appeared Jervis Spencer, Esq., of Baltimore city, and 
 William Price and George A. Pearre, Esquires, of Allegany 
 county. The prisoner was in the Court 
 
 The Court askerl if the counsel in the case were ready for tnal. 
 
 Mr. Harbine announced that the State was ready. 
 
 Mr. Pkice, on the part of the defence, said they were very 
 desirous to try the case, and would be read); but the appearance 
 of the cholera at Cumberland, by scattering the population of 
 that place, had rendered it impossible to gel their witnesses in 
 Court this morning. Fiom inloraiation in his possession, they 
 would arrive to-day or to-morrow. A part of the counsel for 
 the defence was also absent. Mr. Roman was sick in Baltimore, 
 but had signified his ability by letter to be present on Wednes- 
 day; Governor Thomas, also absent, li^d done the same. While 
 be assured the Court they had no desire to postpone the trial, it 
 was usual in such cases to give time to prepare, and he asked, 
 for the adjournment of the Court to give time for the arrival of 
 the absent witnesses and counsel. 
 
 Mr. Harbine replied that the State did not wish to force the 
 defence to a trial before it was fully prepared; that he was aware 
 of the facts stated in regard to witnesses, the State finding herself 
 in much the same predicament. He had no objection not to 
 take up the case till .o-morrow, but djd not wish, to see it longer 
 postponed. 
 
 Mr. Price stated he had merely appealed to the Court to, 
 postpone for several days. 
 
 Mr, Pearre said that himself had only returned to Cumber^, 
 land a couple days ago, to find nearly all the witnesses on both 
 sides absent from that place. Four or five new cases of (disease, 
 had recently appeared in that place, and the influence of such 
 news on absent witnesses might defer their return. He could 
 not, therefore, say, with any degree of certainty, when they 
 could be ready, but hoped to be so by to-morrow, or, at the farth-. 
 
G. 
 
 e§t by Wednesday. It was the anxiety and wish of the defence 
 to have the case disposed of at the present term. 
 
 Mr. Gordon disclaimed any intention on the part of the State 
 to force the defence to a premature trial. But both counsel and 
 witnesses are anxious to proceed. It was expected it would 
 take some tirae to secure a jury; many witnesses, anticipating 
 such a difficulty, had assured him they would be present about 
 the second or third day of the term, expecting the jury will have 
 been empaneled by that time. He had no objection to adjourn 
 till tp-morrow, but thought they might then proceed with the 
 trial, and doubted not that by the time the jury was full, the 
 defence would find its witnesses present. The case was one 
 attended with much expense, which they were anxious to save 
 as far as consistent with the ends of justice. 
 
 His Honor said he was aware of the peculiar circumstances 
 attending the case, and was willing to adopt their proceedings 
 to their necessity thus brought about. The Court had under- 
 stood! at the appearance of the case at the July term, that the 
 case would be certainly for trial on this day of the adjourned 
 session. No postponement could be granted, but to subserve 
 the ends of justice time would be given for the appearance of 
 witnesses. The Court would adjourn over till to morrow. 
 
 Mr. GoRDOBT asked attachments for each of their witnesses 
 that had not appeared. 
 
 Mr. Harbine moved the ndraission of Henry May, Esq., of 
 Ballinnore city, to practice at this Bar. 
 
 Mr. May was accordingly admitted, and took the usual oath, 
 
 Mr, Gordon asked for an order for attachment of such of 
 their'witnesses as did not appear, so that they could order such 
 as they chose. 
 
 The Court granted it, and a like order for the use of defence, 
 
 At the request of the counsel the names of the witnesses were 
 palled over, first for the deience, and then for the State. Very 
 few answered; but it was understood many more would arrive in 
 the course of the day. 
 
 The Court stated as there was nothing further for its consid-' 
 eralion, it would adjourn till to-morrow morning at 10 o'clock. 
 
 TUESDAY, September 6. 
 
 Court was called at 10 o'clock, a. m., Judge Tyson on the 
 Bench. 
 
 His Honor inquired if the counsel were ready to proceed with 
 the case. 
 
 Both sides answered in the affirmative. 
 
 The caunsei in the case had agreed, in the interim, upon the 
 following' questions to be asked of each Juror, as testing his 
 qualifications to sit upon the case, viz : 
 
1st. Have you any conscientious scruples in regaiu to capital 
 punish'jaent ? 
 
 2d. Would your scruples on this subject prevent your agree- 
 ing to a true and impartial verdict in this cause, according to 
 law and evidence, even although the consequence of that verdict 
 might be death? 
 
 3d. Have you formed or expressed an opinion as to the guilt 
 or innocence, of the prisoner ? 
 
 4tbB.,Have you formed or expressed that opinion from common 
 report, from witnesses, or from jreading newspaper or other 
 reporTs ? 
 
 5th. Have you deliberately formed such opinion, and is it a 
 decided one? 
 
 6tb. Will anything you have heard, said, or read, respecting 
 the prisoner, influence your mind as a juror in the determination' 
 pjf this case? 
 
 The questions were approved by the Court, whereupon the 
 members of tlie regular jury -were called, one by one, apd sworn, 
 voir dire. The abeve questioris were theii propounded to them, 
 and! from their answers the Judge decided upon their fitness for 
 jurors. 
 
 But three were chosen from the panel — Messrs. David H. 
 Keedy, John Welf and Joseph Murry. 
 
 The Sheriff was ordered to subpcEna one hundred talesmen; 
 and the Court adjourned to meet at 11 o'clock to-morrow morn- 
 ing, to give the Sheriff time to make his selections. 
 
 WEDNESDAY, Septembkr 7. 
 
 Gov. Thomas, one of the counsel for the defence, appeared 
 io Court. 
 
 Mr. PaicE asked for the balance of the day for an examination 
 of the list of talesmen, and quoted an example in the. case ot 
 Burr, in support of the request. 
 
 Mr. Habbine, upon consultation with counsel for the State, 
 was not opposed to an adjournment for this purpose, but hoped 
 the next morning would frnd all parties prepared for trial. 
 
 Judge Tyson conceded the right of counsel to demand time 
 for such an examination, and Court was adjourned accordingly} 
 until to-morrow morning at 9 o'clock. 
 
 THURSDAY, September 8. 
 
 Coiift met pursuant to adjournment; The Clerk proceeded 
 to call the list of talesmen, who were each sworn upon their t)bi** 
 dire according to the formula agreed upon by counsel, when the 
 following jurymen were qualified and sworn: — C. G. Downs, 
 Henry Landia, Andrew Brumbaugh, Win. C. Kirkhart, James 
 Kridler, Peter Eiohelberger, Pete* MiddlekauflF. 
 
 Durjng the examination a point was raised with reference to 
 ■what Gonstituted a disqualification of a juryman entertaining coo- 
 
8. 
 
 kcientious scruples with regard to capital punishment; and being 
 argued by counsel, it was decided that mere opposition to capital 
 punishment from motives of policy, and not founded upon oon- 
 soientious scruples, did not disqualify a juror. 
 
 The defence took the position, that where the juror entfer'tained 
 an opposition to capital punishment, from motives of policy, but 
 had no religious scruples, and would, if sworn, feel hou'nd,'as a 
 good citizen, ta return a verdict of guilty, .if the eyiifeh'Ce war- 
 ranted it, in a case of murder in the first degree^^death being 
 the penalty, and where he had no opinion or prejudice against 
 capital punishment rising superior to the law of the iand^ he was 
 legally Competent to serve. 
 
 A quesiion was also raised with reference to the right of the 
 State to reject a juror after the defence had accepted him, under 
 the decision of the Court, as to his qualiftcation. The counsel 
 for the prisoner cotitended that after a juror was sworn upon his 
 voir dire as to his competency, the Stale have no right to chal- 
 lenge liim.' A juror was described as one of ihat invisible tribu- 
 nal, spolcen of by Mr. Duponso, that assembles to decide upon 
 questions of right, performs its mission, and as invisibly dis- 
 perses; as one who comes up from the country as a judge in a 
 lease in which he can have no interest, and being qualified upon 
 his voir dire, the State had no right to challeilge, after the 
 juror had b^n chosen by the prisoneir. The defence, however, 
 had the right to peremptory challenge, after the qualification 
 of a juror by the Court, and accepted by the State. 
 
 The coiinSel for the State contended for their right to chal- 
 lenge the juror for favor, after such qualification; for, before 
 his acceptance, they were not aware of the intention of the 
 defence with rfigard to him. The discussion was deeined 
 tinnecessary by the Court, as the counsel for the State had not 
 determined to challenge the juror, and he was Sworn. 
 
 • Of the one hrindred talesmen, seventy-six were rejected ; 
 eieVen challenged and seven qualified. Being exhausted) a 
 new tally of thirty was ordered by the Court, with attachm&nte 
 for the jurors who did not answer, . .^l' 
 
 Two more jurors were required to complete the panel. 
 
 Court adjourned untill tomon-ow at ll o'clock, a. m, 
 
 FRIDAY, Sspiembbr' 9. 
 
 The Sheriff having returned a list of thirty talesmen ordered 
 the day previous, they were called and put upon their voir dire. 
 Twenty-five disqualified themselves by their answers to the 
 questions propounded by the Court; four were peremptorily 
 challenged by the counsel for the defence; and one (James C 
 jBowersj was chosen. 
 ■ The Sherifif was thereupon directed to summon ten more 
 
9 
 
 talesmen — there being but one more juryman wanted ; and the 
 Cpsvjrt took a recess from about 12 to 4 o'clock. 
 
 The Court again assembling, nine of the teti tal^smew 'were 
 set aside for cause, and the tenth (Jacob J. Hershberger,) was 
 selected — ^thus completing the requisite number of jurymen. 
 
 The right of counsel for the defence to challenge, was ex- 
 hausted w^ith the morning session. The jury was selected 
 oiit of one hundred and sixty-four summons, including the regu- 
 lar panel of twenty-four. 
 
 Mr. Price, one of the counsel for the defence, upon the quali- 
 fication of the last juror, remarked that " our cEeni m now in 
 the custody of the •Court," and supposed the trial wo«ld be 
 proceeded with. 
 
 Mr. Harbine, State's Attorney, said the accused womld not 
 be out of the privilege of his securities until the fiaisMng of the 
 jury by regularly calling and swearing them. 
 
 Mr. Thomas, for the defence, asked if the State inten€'ed to 
 complete the jury at this time ; and, if not, wanted*0' teio^W: of 
 the counsel for the State if it was designed to tai^e any pre- 
 liminary issue previous to going on with the triali 
 
 Mr. Harbine said it was desirable to postpone any further 
 proceedings until to-morrow ; as some casuality might intervene 
 and produce a delay. Besides no progress of importance could 
 be made to-night.. 
 
 Messrs. Thomas,. Spencer and Price, for the deftnce, pressed 
 to know wkether the State had any intention of attempiing to 
 disqualify any of the jurors, &c. But, JMessrs. Harbine, |yi,ay 
 and Grordoa declared that they had; no, determination on the 
 subject. 
 
 Tie jurors selected were put und^r charge of the SherifiF, 
 after an earnest, well-directed and appropriate charge as lift 
 their duty to. the State, the prisoner^, and themselves, from 
 Judge Tyson,, and the Court adjourned. until 9 o'clock, to-mor-' 
 row morningi. ^ 
 
 SATURPAS', St?TEM3BE 10, 
 
 Upon asseinbJittg: &f the Court it was announced tihat one of 
 the jurors was too unwell to leave- his, quarters; and another 
 was excused from attending in consequence of having received 
 announcement that Ms wife was dying., 
 
 Mr. Harbine, State's Attorney, said it was his, serious duty 
 to move the Cowrt to displace one of the jur^grs in ihe box. 
 He did so from information .received ^niCe he had been put 
 upon his voir dire, and read authorities to show the power of 
 the Court to exercisp its " sound discretion" in the premises, 
 to set aside a juror, though sworn, at any tin^e before the panel 
 , was regularly called, the prisoner arraigned, the charge 
 read, &c. _ B 
 
10 
 
 Mr. Price said counsel for the State liad licted fair in noti- 
 fyiiijg him and colleagues for the defence. He objected, how- 
 eVerj to the proceeding. 
 
 Mr. Pearre, for defence, reviewed the authorities referred 
 to, and cited others in opposition. 
 
 Mr. tjrordon, for the State, responded, and advocated the 
 right of the Judge to exercise a sound discretion in executing 
 the power prayed. 
 
 . Mr. Price said there were two modes of trial, viz : First, by 
 putting the party upon his J^oir dire ; and secondly, by triors; 
 aiid that tbe. reason of the thing justified the law in the case. 
 Referred to Wharton, 861; Pictering, 254. Had understood 
 the juror, (Eichelberger) respectable and intelligent, aiid there- 
 fore^had taken hinii. The time for testing hjm before triors 
 had past ;- that could only be done before he was sworn. He 
 recited thc/.fo^mula of interrogatories framed- lay the State's 
 counsel, and propounded by the Court, to show that the juror 
 had been fairly chosen. The State could not slipw him per- 
 jured. To one of the interrbgatories'the juror said he had ex- 
 pressed opinions ; but in answer to another,, he declared he had 
 not deliberately formed opinions, nor bad he any fixed ones; 
 aiid again, to another question, he had said, tbat nothing he had 
 heard, said or read, would prevent his giving a fair and impar- 
 tial verdict according to the evidence and law. How then 
 could- proof be adduced to. Show his mind false. It was a matter 
 between his God and, himself. Though anxious to proceed with 
 the trial, he felt bound to speak in defence of 1;he jui'or. 
 
 Mr. Spencer, on part of the defence, thought there need be 
 no doubt but- that the juror implicated could sliow a clear con- 
 science. The motion' involved a high charge against him, and 
 therefore counsel defended him. He referred to authorities 
 (quoted, and gave others in opposition. 
 
 Mr. May, on the j)art of the State, said the motion Was 
 based upon the principle of ajust administration of the common 
 law, and no course of Opposing counsel should prevent the 
 exercise of wliat was conceived a solemn duty to the State.and 
 to justice. He denied that this pi'ocedure was designed, or 
 would be so regarded, as intended to impeach the integrity of 
 the juror. Certain inforifiation as to Avhat the juror had said 
 formed grounds for investigation, which, if established by wit- 
 nessesj' would ■ prove his inability to set upon the case. A 
 , question of partiality goe§ not only to the prisoner but to the 
 State. Suppose he had said he had not formed or expressed 
 an opinion, and evidence could be produced that he had for- 
 gotten many of his expressions in the past, would it not be 
 competent to give tbe facit in sustaining the motion, and 
 to show he had indultredin preiudices V As tc hit tntertuiniiiir 
 
11 
 
 a decided opinion, the QOurt and the juror niaj differ as to their 
 undergtandingof that expression when further elucidated ; and, 
 as it is fair to presume that the court is the better judge, of the 
 legal meaning of that term, it will readily be supposed 'that 
 the court shouM inquire into and decide the matter ; and yet 
 the juror had no right to suppose iti?a,s an efflort to impesiich 
 him of false swearing. ; If the facts expected to , fee' proven 
 shpuldbcdoBe,, and .if it should be, found that. the Court Jxad 
 no power to remedy the matter, it would cast a shadow, oyer 
 the judicial machinery of Maryland^ which he, would blush to 
 a,cknowledge. . ; .; • i 
 
 The position assumed, hp rega,r,ded as fair, open, and just. 
 What happens [to work for one side to-day, might be, found to 
 operate in favor, of the other tormorrow-, . He argued in favor 
 of the Judges's taking the matter up, and of deciding upoB 
 principles of reason, justice and law. ., Ho citCid various authori- 
 ties, for the positions he assumed, in a lengthy argument, ;tp 
 show the power and the duty of tlie Judge,, to purge the jury- 
 box, of any improper person. . .■ ,■ 
 .. ., Mr. Pearre,, for the defence, argued tka,t their position was 
 shielded, by the, comi^ion law of the land..< :-,■ , ? 
 
 Mr. Harbine replied to opposing counsel. This -concluded 
 the argument.. ,.■.., ■ > ■:■; , , ■ ; 
 
 The Court, Ijavinigmet at 9,,;took a reeess from, about 1 to 
 4 o'clock. ' , : J . :.. 
 
 The Court re-assembled, when Judge Tyson responded to 
 the, motion to set aside the juror, by the delivery of the follow- 
 ing opinion : ,:,.::. ,,:;,. 
 
 , "The juror in question having niade himself prima facia 
 comp-etent by, having beeji sworn upon his noir dire-, and having 
 been immefliately sworn as :a juror in this, cause, does the fact 
 of his having beeu; sworn as .a juror make him absolutely com- 
 petent, or mayrthe fact ,of his, competency under any circum- 
 stances be jenquired into by this Court. That he was sworn 
 upon his voir dire afford^ not the_slightest'reason; why an in- 
 vestigation into the truth of his deposition- should not be had. 
 The doctrine applicable to, the, voir dire w-hef e: it; is used; as a 
 te^t.of interest in a civil .cause, has no r.cference or analogy to 
 a case like this ; the technical term; is the sameji but in the civil 
 case, other,- .imperious rules ; and principles of, law, come in,, all 
 enforcing the c,onciusiveness of the answer of the witness..-, H6 
 is the witness of the party who examines liim upon his voir 
 tfi?'e, his credibility is admitted, and the law will not therefore, 
 ailpwhim tO' be impeached. , But a juror upon his voir dire is 
 not the deponent or witness of any party ; he; is the deponent 
 of the Court, and nothing that he may say, is binding upon 
 the State or the accused. . 
 
12 
 
 '^ i3iat-q, decisive argument against the conclusiveness of the 
 voir dire in this ease is derived from the fact, that even after 
 an examination tipon the voir dire and before the swearing in 
 of the juror, either party may challenge him for favor. It 
 seems to be conceded upon both sides, that after the juror is 
 sworn it is too late to examine him by triors, and the question 
 is asked, whether there exists a power in the land strong enough 
 to eniquire into the qualifications of a juror, notwithstanding 
 his two-fold oath. 
 
 " It is alleged on the one hand, that such power belongs to 
 the Court to be exercised according to its sound discretion ; on 
 the other hand, it is said that the exercise of all such powers 
 is precluded by the swearing of the juror. I have never con- 
 sidered that the right to challenge, either peremptorily or for 
 favor, interfered in any degree with the reserved power of the 
 Court to act in any case which a challenge could not reach, or 
 to which a challenge had not (from some cause or other) been 
 applied. In a matter of so much importance as that of the 
 pure administration of justice, it Would be very extraordinary 
 if there was not some power in the Court strong enough before 
 trial, to purge the jury box when it manifestly appeared that 
 it was corrupt. 
 
 " The objections of the counsel for the prisoner being solely 
 on legal grounds, they concede the facts alleged by the State; 
 they admit for the purpose of the argument that the juror in 
 question is wholly incompetent and unworthy to act in this 
 pause. Such being the case— a juror about to be introduced 
 into an important cause, as an arbiter of life. and death, who 
 is wholly unfit for the sacred office, who might degrade and 
 prostitute it, it is of immense importance to be able to ascertain 
 whether there is any power in the land, strong enough to reject 
 ^lim. I think such power exists in this Court. If the Court 
 has not the poirer under such circumstances to preserve the 
 incorruptible purity of the jury box, if it can with its eyes 
 open see a juror walk into its sacred enclosure, with the avowed 
 intention to defeat the ends of justice, then justice is a mockery 
 ^i»d Courts and juries are but idle pagents for the amusement 
 of the multitude. The .Court, therefore, grants the motion 
 niaide on the part of the State," 
 
 Crov, Thomas suggested, that from the language contained 
 in the opinion of the Court, the public ntight suppose that the 
 counsel for the prisoner admitted in fact, that the individual 
 whose admission was in questio^j was really unfit for a- juror, 
 and he wished to say to the Court, that such was by no mearis, 
 the opinion of the counsel. 
 
 The Court replied, that the statement was made in its opin- 
 ion, upon the general ground that, when counsel raised this 
 
13 
 
 question of law in relation to the power of the Court in this 
 case, the facts Stated hy the counsel for the State were neces- 
 sarily admitted for the sake of argument. It was like a De- 
 murrer to a DeclaratioJi — where the facts are assumed to be 
 as stated, and where the decision of the Court is to be made 
 upon such assumption. 
 
 Mr, Price asked the Court to make its decision part of the 
 record in the case; which was assented to, 
 
 Mr. Thomas, on behalf of the defence, said we have a similar 
 motion as that of the State to make, in reference to another 
 juror. 
 
 Judge Tyson made some enquiry as to counsel for the 
 juror. 
 
 Mr. Thomas said it would involve counsel for the accused 
 in an indelicate position to appear in defence of the juror, as 
 among other things it might lead to the impression that they 
 were anxious to procure a juror alleged to have partialities for 
 him, &c., and thus operate to the prejudice of their client. 
 He concluded by saying he might have been hasty in mention- 
 ing a design of motive in regard to another juror. 
 
 Mr. Price said such a case had never occurred within the 
 range of his knowledge, in Maryland, and as counsel for the 
 accused, it was proper to decline acting for the juror in M^ 
 present position. But, after further remarks from counsel, 
 Mr, P. said he would act as counsel, without fee, if the Court 
 would release him from the jury box, so that he might come to 
 the counsel bench. 
 
 Mr. Spencer made some suggestions, to which the Coiitrfe 
 acquiesced. 
 
 The juror asked Mr. Price to act for him, to which he re- 
 sponded., and selected Samuel Mj Semmes,' of Allegany, to aid 
 him,. The witnesses for the motion were called, when the 
 arraigned juror asked permission t© go out to find proof for hisi 
 defence. This led to some discussion^ of no material im- 
 portance. 
 
 tjpon the suggestion of counsel, the motion to the Court was 
 hpre submitted in writing as follows : 
 
 " In this case, after the jury were sworn, and before the jurorSi 
 were counted or the indictment read to the prisoner, and after 
 the jurors were sworn upon their voir dire, and answered the 
 questions pi-ppoundtid to them by the Court, by consent of' both 
 parties as to their competency, the said questions having" been 
 SubinittSd by the counsel for the State, land agreed to by the 
 bdtins^l for the prisoner, the State, by its counsel, prays the 
 Court to set aside and remove from the jury, Peter Eichelberger, 
 a juror sworn in this case, because he has (bi^med and expressed 
 a decided opinion against the said State, and manifested prejti- 
 
14 
 
 (lice and ^ deep leeling of bias in Aivor of, Ibe .prisoner at the 
 bar — ihe same having came to the knowledge'cjf the counsel lor 
 the said State since the said juror was sworn in this case." 
 (Signed, j Thomas Harbine, 
 
 Jittorney for the State. 
 
 The following was thereupon also submitted : 
 
 " The counsel for the prisoner object^ ip the "withdrawal of the 
 juror, because the juror had been examined on'his iioir dire as 
 to his impartiality, and as to his expressing opinions as ta the 
 guilt or innocence of the prisoner at the bar^ and'because there 
 was no power in Ihe Court to order a juror to be withdrawn 
 iSfterhe was sworn, without the consent of the prisoner.". 
 (Signed,) - . ■ Gteo. A. Pearet:, 
 
 Counsel for Prisohev. 
 
 Witnesses were then summoned and exainined as to the com- 
 petency of the juror. 
 
 Robert Curiis. — Had a conyersalfon with Eichelberger on 
 s,everal occasions on the subject ,6f the prese'pt. 'tria^; did not 
 charge his mind with •Eiehelberg'er''s words ; t,he most he can 
 recollect is of Tuesday niglit last, when E. expressed himself 
 freely ; ^aid that Swan ivas justifiable fn shooting Sprigg; he (E.) 
 would have done as Swan'did five years after he accepted the 
 apology; the conversation las'ecl ten gf fiftefe'n rininutes ; E. was 
 ^xciferl ; excited, by the discussion ; was not excited when the 
 discussion comrriencied; witness had sai(2 he thought Swan would 
 have been justifiable if he had sho.t Sprigg at the time he spit in 
 his face. E. did not profess to know all the evidence; witness 
 supposed his raind made up from the representations as they had 
 come to him ; on them his mind was made up that Swan was 
 justifiable ; his expression was roade^n a moment of excitement. 
 Witness does not recollect if the conversation' was oh Monday 
 or Tuesday evening ; it was at E's store; thinks other persons 
 were in conversation with him at the time ; has heard E. say no 
 one ought to make up his mind before he hears all the evidence; 
 IS not certain that he said so on this occasion. 
 
 Daniel Giles. — Was present during part of a conversation 
 between Eichelbergef and Curtis, on Monday evening ; heard 
 E. say, " if a man spit in his face, he'd shoot him if it was five 
 years afterward, even if he had' accepted an iipology ;" di"d not 
 particularly justify Swan ; spoke of the insult if to himself. 
 
 James McGonigal. — Thinks it was on Tuesday evening las-t 
 he was sitting with E'chelberger in front of his store; E. re- 
 marked that he had been summoned a talesman and was very 
 sorry ; witness said he could easily get off, as no one was takeii 
 who had expressed an opinion ; E. said he could not, he bad 
 never expressed an opinion; had stood out against expressing 
 an opinion, and had cursed Hawthorn forexpressing his opinion, 
 
15 
 
 and ihal lie was always opposed to any one cif pressing opiniort 
 on a subject till hp had heard all the evidence. Witness lives 
 near E.'s stofe ; is there almost eVery day ; don't recollect ever 
 having heard him express an opinion oh this subject ; has heard 
 hita 5ay he would not make up his mind til! he heard the evi* 
 dence, although he had been to Cumberland and heaid that 
 Sprigg was a biiljy. and very overbearing. 
 
 ' George Lors'hbaugh. — Never heard EichelbBrget- e)£press ah 
 opinion on the subject ; liv'es'near and is often at his store, but 
 alvv'ays t3n business •, was not there on ihe evening referred to by 
 other witnesses; hiis lived neighbor to E; for eight or ten year^J 
 he is a man of'veracity. '' ' 
 
 Jphn Hawthorn.r-H.e,ard. Eichelberger express opinions bn 
 both sides of this 'cas^c ; it was an old talk at his store, where 
 they read the newspaper rumors about the affair ;-sometimesE. 
 said Swan v^as wrong ; sometimes right; just as the papers 
 changed ; witness never heard him say his mind was made up. 
 
 William Hawthorn.— Had' an argument with Eichelberger 
 sdme tiine back about this case ; E. said one ought not to ex- 
 press an opinion; he had not; witness thought he had, and said so^ 
 
 William Fceaner. — Is often in Eichelberger's store ; had sev- 
 eral conversations .with E. concerning this ease ; he said Swan 
 otight to be tried, and have ai' fair and impartial trial, and that 
 people ought nqt to raak.e.up' their inind^ till they hear all the 
 evidence ; that there might be contradictory evidence ; this Con- 
 versation was some six bV eight months ago ; the last was within 
 a couple months, byt he always held' ihe same language ; his 
 cliaracter is good ; is &n honest man. 
 
 George M. Albert. — Lives near Eichelberger's store; is bftett 
 there ; one day Swan passed by and. witness alluded to his case; 
 E. said " hold your'tongue ; people oughn't talk so miich about 
 it till they, know the evidence ," witness never heard E. express 
 an opinion as to the guilt or innocence of Swan ; character good* 
 
 John M. Hauck. — Mas his office iiear Eichelb<>rger's store; is 
 often at the sto/e ; has not often gon.yprsed on the subject ; haS 
 heard E., express dpiri'ions both ways;' can't say when 'i thinks 
 on Moridaylast, doriversed with E. about it, when he said a tsan 
 couldn't form aii opinion till he, heard the evidence of both sides', 
 he often had said the same; had always added it when speaking 
 to witness of this affair/ character is as godd a', any man'Si 
 
 H. N. Harne. — Is an did acquaintiince of Eichelberger^ gets 
 to his store about onte a week ; his character iS very gobd; has 
 heard him speak bf this case; commonly had no opinion; nevei! 
 expressed any kind of feelirie'. 
 
 James Wason. — Knows; Eichfelberger; his character is very 
 good. 
 
 The question of 'competency being submitted, the Court set 
 
16 
 
 asitle the juror as incompetent, and ordered a list of forty tales- 
 men, Cieturriable by Monday, at 11 o'clock. 
 
 The counsel for defence suggested that they had a similar mo- 
 tion to make with reference to another juror, of which the State 
 wer? already advised. 
 
 iVIr. Price asked what would be the position of the defence 
 now, after the discharge of this juror, with reference to the right 
 of chaljenge .'' When Mr. E. was sworn, the prisoner had a 
 number of challenges, which were now exhausted, and they 
 clafifned the right to stand in' the same position they <lid when 
 this juror was qualified. 
 
 The Court reserved his opinion until Monday morning. 
 
 Adjourned until 11 o'clock, Monday. 
 
 MONDAY, September 12. 
 
 With a view to the despatch of business, the court adpptecl 
 an ordpr restricting each party to two speeches — the opening 
 counsel to close. 
 
 ^r, Price again called the attention of the Cpurt to the f^ct 
 that when Mr. Eichelberger was sworn, they had four perempto- 
 ry c|iallenges remaining, and claimed [he right of occupying the 
 aame position as they did when Mr. E. was set aside, fie as]fed, 
 if the \yh^le list of jurors was set aside, and the cfaallfe^ges ex- 
 hausted — the whole to be gone over again, the prisoner was to 
 be denied his challenges, as at first. 
 
 Mr. Harbine, upon consultation with counsel, said they did 
 not recognise, but were willing to accojrd the right of the four 
 challenges to the prisoner. 
 
 The list of forty talesmen was then called, ■when the follow- 
 ing juror was qualified: — Claggett W. RandalL 
 
 ,Mr Bowers, one of the jurors announced his inability, la 
 consequence of sickness to sit as such upon the trial, and was 
 discharged by consent of counsel. 
 
 The selection of another juror being necessary, the list of 
 talesmen was again called, when Thomas Boyd was qaalified and 
 sworn. 
 
 The wi'.nesses for the State were railed and sworn. 
 
 ,^T. Grordon thpn made the ope^iing statement for the State, 
 as follows ; 
 
 (Qentlemen of the Jury : — You are no doubt much reliey^cj 
 by the termination of the tedious proceedings by which your 
 paTinel has been filled, and the tribuiial completed by which the 
 issue in this cause is to be decided. To some of you these pro- 
 ceedings, or at least some of them, may appear useless and un- 
 meaning ; but if you reflect for a moment upon the gr^ve arid 
 serious consequences of the result of tkis inquiry, as it effects the 
 life of the prisoner upon the one hand, and the administration pf 
 public justice, by which the .peace and well being of society is 
 
17 
 
 to be protected, on the other, you will ap()reciate the motives of 
 the counsel for the State, and not think lightly of their effarts to 
 secure * fair and impartial jury, as they felt themselves b'oundto 
 do, acting under a sense of duty ; and, I have no doubt, you will 
 extend to the gentlemen on the other side the same indulgence, 
 in the discharge of the daty they owe to their client. 
 
 The prisoner is indicted for murder in the first degree; but 
 under that indictment you may find him guilty of either of the 
 degrees of felonious homicide — murder of the first degree, mur- 
 der of the second degree, or manslaughter. Your verdict though 
 must fix the degree, and it is therefore my duty now to explain 
 to you the law which defines and limits the law of murder and 
 raantlaughter. 
 
 You will remember however, gentlemen, that nothing that is 
 now said to you, by counsel on either side, is to have any effect 
 upon your verdict. Their statements are not evidence, and your 
 decision must be founded upon the evidence alone as it may be 
 detailed to you by the witnesses* 
 
 The opening statements of counsel are for the purpose of in- 
 forming you of the general nature of the charge and defence, so 
 that you may understand the subject of inquiry and the applica- 
 tion to be made of the evidence as you hear it from the witnesses. 
 
 Murder, is the unlawful killing of a human being, in the peace 
 of God and the State, with malice aforethougnt. And the malice 
 may be either express, as when a man makes threats before hand, 
 or at the time of killing, of a deliberate intention to do the act / 
 or implied, as when the killing is with a deadly weapon or with- 
 out sufficient provocation. Every homicide, too, is presumed 
 to be murder, until the contrary is proved, and the burden of 
 proof is upon the prisoner, Lewis, 354, 390. In every crim- 
 inal trial of murder, the law first presumes his ir;nocence, but 
 when the killing is proved, the presumption i?, against the pris- 
 •oner, and he must show the absence of r^alice to reduce the 
 offence to manslaughter. This is the Kw of the case as it ex- 
 isted at common law; but it has becfj Somewhat changed by an 
 Act of Assembly. This Act of A'asembly though docs not change 
 the law of murder, as it existell before its passage — everything 
 that was murder then is Kiurder now. And its only effect has 
 been to distinguish between the different kinds of murder: those 
 for instance committed with poison, by lying in wait, or in the 
 attempt to commit certain other felonies, mentioned in the Act, 
 or any kind of wilful, deliberate and premeditated killing ; and 
 murder Committed in attempting to do some other unlawful act, 
 and without any intention to kill. To the first class of cases, 
 the penalty of death siil! remains ; but the second cla«s are, ac- 
 cording to its provisions, punished by confinementin the peni- 
 tentiary. G - 
 
The general language of our statute, under which we expect 
 to convici the prisoner of murder of the first degree, is a literal 
 Cflpy of the Act of Pennsylvania upon this subject. The statutes 
 of New Jersey and Virginia are also in the sarae language, and 
 as we have no decisions in our State to guide us in the interpre- 
 tation of the law, I will refer you to the authorities in those 
 Stales, to show you how they have interpreted their statutes, 
 and you wiJl then find the line which it will be your duty to draw 
 bt.t ween murder &f the first and murder of tire second degree 
 clearly defined. The first authority is from Lewis, U. S. Grim. 
 Law, 393, 394 : 
 
 "Whenever it appears from the whoI« evidence, that the crime 
 was at the moment deliberately or intentionally executed, the 
 -killing is murder of the first degree. 
 
 "In fine, whenever the deliberate intention is to take life, and 
 denth ensues, it is murder in the first degree ; whenever it is to 
 do bodily harm or other mischief (without an intention to take 
 lite) and death ensues, it i? murder of the second degree, while 
 the comraondaw definiiion of manslaughter remains unahered." 
 " — S_arae authority, page 417^ 418, and Wharton's Amer. Grim. 
 Laws, 428, 432, 3 and 5. 
 
 -We see then gentleman, that every act of homicide accompan- 
 ied with malice, is murder, and if it is deliberately inrended at 
 the time of the act done, it is murder of the first degree ; if the 
 killijig is not intended, ii is murder of tie second degree. 
 , The next thing in a trial of this kind, is to determine what 
 tvill reduce the killing to manslaughter. For this purpose there 
 must be a provocation sufficient to destroy the mental capacity 
 of the party and create a momentary madness, during which he 
 could have no control over his passion ; and the act must be 
 dpne so recently after the provocation that reason could not have 
 .time to resume her place in the mind. For no provocation, how- 
 ever great, will reduce the homicide from murder to manslaugb* 
 -ter unless it is accompanied with passion, nor will passion with- 
 out provocation. Lewis Crim. Laws, 396, '7, '8, and Whar- 
 ton, 368. 
 
 It is not every provocation either, that is sufficient in law, 
 even when accompanied, with passion, to reduce the killing, and 
 therefore,, no word of abuse, no indecent and insulting jestures 
 wilJ be si^fficient, however much the parly may be influenced by 
 them, (or the law intends to restrain jtassion and not to encour- 
 age acl« of violence by indulging it when unreasonably excited. 
 It must be so recent too, that a leasonable man would not be 
 ' .likely to have recovered from the transport of his passion and 
 commence to reflect in the interval, for if the passson is kept tip 
 an unusual length of time, this will be evidence of malice and 
 the' killing will be murder. 
 
19 
 
 • Th« next subject of enquiry is, whether the killing is justifia- 
 ble or excusable, so as to relieve the party from all punisjiraent. 
 If he would show a justification, the Idlling nnust be in accord- 
 ance with some legal authority, as a Sheriff who executes a 
 prisoner under sentence of death. If it is excusable homicide, 
 he nnust show that it was done in actual defence of his own, or 
 the life of some o^his family, or to prevent some great aad icn-, 
 inedidte bodily harm ; and the necessity for killing must be so' 
 great that nothing else could prevent it. If he had the. means 
 of escaping, the killing is not excusable, and the danger must 
 be 60 imminent, that nothing but the killing will prevent it. 
 Lewis, 998; Wharton, 386, 388. 
 
 You will find from the evidence of the witnesses in this cause, 
 that the murder, charged in (he indictment, was commilted.on 
 the 11th February, 1852. About 7 o'clock of the evening of 
 that day, the prisoner, with a friend of his, was in the billiard 
 salooQ, opposite to Heffelfiuger's Hotel, in Cumberland, engaged 
 in playing a game of billiards. Whilethey were playing, Sprigg, 
 the deceased; came in, walked past them, without saying or doing 
 anything to attract attention, to the back part of the room, where 
 his coasin, William Sprigg, and several other gentlemen were 
 playing billiards on another table. He stood there for ten or 
 ^fteen minutes looking at the game, and laughing and talkingin 
 hi«i usually sprightly manner with those gentlemen, He tbeu, 
 went out of the room into another part of the house. The 
 prisoner kept on playing until his game was ended, tlien left the 
 billiard room, went across the creek about a quarter of a mile to, 
 his office, armed himself with a double barrelled gun, a pair of 
 pistols aid a bowie knife; returned to the billiard room,, expect'. 
 ing to find Sprigg there ; looked in ; but he was not there ; then 
 went across the street to Heffelfiuger's Hottl, where Sprigg 
 boarded j- looked through the window, and saw him inside silting 
 by the stove in conversation with some strangers who were there. 
 He then went in ; opened the door quietly ; threw it open wide, 
 antJ instantly raised his gun, took deliberate aim at Sprigg, and 
 fired- without saying a word. 
 
 When Sprigg saw him raise the gun, he started to run from 
 hiffi, ajid went to the door leading into the back yard, and the 
 first load which did not prove fatal, lodged in the door. Sprigg 
 then, not being able to escape through that door, ran towards the. 
 doer af the reading room, and after adva/icingtwo or three Sjteps, 
 Swan fired the second barrel, which took effect, and he instgptly 
 dropped dead. 
 
 After firing the second lime, Swan said to the persons, who 
 ■were strangers there, " gentlemen, I am Robert Swan. I killed 
 Will Sprigg, If any body wants rae, I will be at my oiKce." A,t^ 
 this time Mr. Callen made his appearance from behind the \)^r, 
 
20 
 
 and Swan turned to hiia and said, •' Davy, jou know me, I 
 killed Will Sprigg. I done il coolly and deliberately." 
 
 By this time one of the witnesses had come in and met Swan 
 at the door, asked .vhat was the matter; Swan replied, that he 
 had killed Sprigg. Some one then proposed to go for a physician; 
 another said it was no use, that he was dead. Swan again re^ 
 plied arid said, '* yes, he is as dead as hell." Somerkarap now 
 came in from the ladies parlor, and asked What was the matter; 
 Swan said, " he had killed Will Sprigg, that he had made up 
 his mind to do it, come there to do it, and had done it with his 
 fowling piece," whicl' he then held on his arm. He also said, 
 that t^at was not all the arms he had, but had plenty more for 
 any emergency, and then took hold of hie coat and threw it open 
 to show his arras. Somerkarap then took a candle off the bar, 
 apd went to look at deceased, when Swan said, " oh, you need 
 not look at him, he is dead." Some one thevi asked where he 
 was shot. Swan replied, "he is shot in the head. I am a 
 good shot and hardly ever siiss my aim." 
 
 Swan then left Heffelfinger's ; went to Cowton's, and there 
 announced the fact in the bar room, and said he had done it 
 coolly and deliberately. He next went on his way towards his 
 office, till he got to the store of Mr. Belts, where a number of 
 persons ^ere standing talking about the matter. When he came 
 up tp them he said that he supposed they were talking about it, 
 and said he had killed Sprigg; that he had done it deliberately, 
 and would do it again. Some one then asked how he did the 
 act, and he raised his gun deliberate5y and showed them how he 
 aimed at his victim, and said he shot him like a partridge, and 
 was better on the wing than sitting; alluding to the attempt of 
 the deceased to escape from him. 
 
 The evidence will show furtlier, that the prisoner had made 
 threats towards the deceased, and had said that he would kill 
 him, and afterwards^ while in jail, said that he had shot hin like 
 a damned dog, and not like a gentleman. 
 
 If these facts are proved upon the part of the State, they will 
 make a clear case of murder of the first degree, and it will be for 
 the prisoner to prove such facts and circumstances as will reduce 
 it to a less degree of homicide. If you should be satisfied that 
 tKe killing was with malice, but without the intent to take life, 
 your verdict should be for murder in the second degree. If it 
 vras without malice upon a sufficient and recent provocation, and 
 under the heat of passion, it should be for manslaughter. And 
 this is the lowest degree of homicide to which it can be reduced, 
 unless you are satisfied that Sprigg, at the time of the killing, 
 was actually assaulting Swan, and in such a violate manner that 
 he had no means of saving his own life, but by taking that of 
 his assailant. 
 
21 
 
 I forbear now from making any further statement of the facts 
 to you, believing that the inquiry cannot legally go beyond this 
 extent. If however our friends on the other side should think 
 differently, and the Court should agree with thera, we are pre- 
 pared to meet them on all the points of the case, and defend the 
 general character of the deceased, as well as his conduct in the 
 difficulty which resulted in his death. And, for the present, I 
 will leave the case with you for your calm and patient investi- 
 gation, after hearing the evidence on both sides. 
 
 Mr. Price then made the statement for the defence, as follows : 
 
STATE OF MARYLAND, V Indictment for Murder. 
 vs. c ' 
 
 ROBERT SWAN. ) Septenif^er 12th, 1853. 
 
 ME. FRIGE'i STAT ElElf FOR THE D£FENG£i 
 
 Gentlemen of the Jdey : — It now becomes my duty to 
 state the case of Robert Swan : but before I take up the facts 
 more iintnediately connected with the case itself, allow me to call 
 your attention to some of the extraordinary occurrences vrhich 
 baVe marked the history of this prosecution. 
 
 The transaction out of -which this indictment grew, arose Hi 
 Allegany County ; the case as you see is tried here. By whoiia 
 was it brought here ? Not by Robert Swan. I desire it to Be 
 distinctly understood that he has not fled from the county, in 
 which he was born, where his character was known, as also the 
 character of Wm. O. Sprigg, the deceased — where all the wit- 
 nesses and all the influences operating upon their minds, were fully 
 known to the community— to take his chances for justice among 
 strangers.. It was brought here by the State, and upon the sim- 
 ple oath of the State's Attorney, that the prosecution could not 
 have a fair and impartial trial m the Circuit Court for Allegany 
 County. 
 
 : There is an ancient and revered maxim', the establishment of 
 -which, cost oceans of blood in England, for it was built upon 
 the ruins of the bloody " star chamber," that great engine of op- 
 pression in the hands of the Stewarts and the Tudars ; a maxicii 
 which was transplanted from England into the "Colonies," and 
 which is now found in every State Constitution of the Union— 
 which was a part of the old Constitution of this State, and 
 Las been carefully transferred to the new,- — which declares, "thai 
 the trial ef facts where they arise, is one of the greatest flecuritieS 
 of the lives, liberties and estate of the people." 
 
 Now, what is the reason upon which this great maxim rests? 
 It is this, that every man has a right to be tried by his owa vi- 
 cina-ge, by those who know him, and know all persons cp^^ected 
 with '.he transaction ; and this practice of dragging a<fian froni 
 his own home to be fried among strangers is one p>'recent growth 
 in the State of Maryland; and I aver that it is -Wrong in pirinciple 
 arid oppressive in practice. > 
 
 If it be a great security of a man's life or liberty that his case 
 Shall be tried in the county where it sifses, why is it that this! 
 great security is to j?e swept away by the mere breath of a Pr6S- 
 
II. 
 
 ccuting Atlorney ? The amount of that officer's oath is nothing 
 more than that the State will have a better chance of conviction 
 where the prisoner is unknown, than where he is known, and 
 this oath no man is to gainsay or deny. The moment it is made 
 the cause is removed, and the accused, is deprived, as a matter ol 
 course, of one of the dearest rights guarantied to the citiz'en by 
 the constitution Tindj^he laws. 
 
 Again, gentlemen, that same Constitution declares, " that I'n 
 all criminal prosecutions every man bath a right to a speedy 
 trial by an impartial jury;" This is declared to be every man's 
 right, and how has that right been accorded to Robert Swann? 
 He was committed to the jail of Allegany county on the lltb 
 day of February, 1852, and we are here engaged in his trial in 
 September, 1853, afier a lapse of nearly nineteen months. Now 
 what is the sjeaning of the term " speedy .trial," or are the 
 "words in the Constitution mere verbiage without any meaning at 
 all.'' An emphatic meaning has been given to this clause of the 
 Constitution by the Act of 1809, which declares in so many 
 words, that he shall be entitled to his trial at the first term after 
 the case arises, and should the State not be ready to try him at 
 the second term, he may, in the discretion of the Court, be dis- 
 charged.. It is every where regarded as rank oppression, that a 
 man under indictment for & criminal offence, shall be kept in 
 suspense and his trial delayed beyond the second term after pro- 
 ceedings have been commenced against him, and where such is 
 the case, the Courts will release hiin from confinement and set 
 him at liberty. 
 
 Now, in this case, the first term of court in Allegany county 
 after this case arose, was that of April, 1852. At that term 
 Robert Swan came from his prison into Court, allhiswimesses 
 were in attendance, and he fully prepared for trial. After four 
 days' spent in arraigning the prisoner and swearing two jurors, 
 the State suddenly broke off the trial, fled from the State of public 
 opinion in Allegany county, and dragged the prisoner here to 
 take his chances for justice among strangers,' who had never 
 seen his face or heard his name before. 
 
 The first term occurring in this county after the removal, was 
 that of November, 1852, and then again Robert Swan appeared 
 with all his witnesses, collected at great cost and labor from the 
 four quarters of the earth, and as had been foretold when the 
 State removed the case to this county, she had no Judge to try 
 the cause, ai^] the cause was continued by the State until March 
 terra, 1853, whtn the accused again appeared, the Slate beiog 
 still unprepared for trial. Robert Swan has been ready and the 
 State has been getting ready all the time. Now, is this the 
 speedy trial which the Constitution guaranties to the humblest 
 citizen .' 
 
iir. 
 
 I feel compelled to mention another extraordinary feature 
 belonging to the history of this prosecution. The Governor of 
 the State has taken an open, undisguised and zealous part against 
 the accused. In his message to the Legislature at its last ses- 
 sion, he referred to this case by name, in terms well calculated 
 to excite prejudice against the prisoner, and recommended to the 
 Legislature to pass a law- for the purpose of strengthening the 
 arm of the prosecution. Now, it, is one of the most fundamental 
 and sacred principles of free government, that for any criminal 
 offence, the party charged has a right to be tried by the law as 
 it exists when the case occurs, and every generous and manly 
 seiiliment of the human heart rises up in rebellion against any 
 attempt either to make or to amend the law, to effect a case 
 already pending. -The Constitution of your State emphatically 
 declares, that retrospective or ex post facto laws are "oppres- 
 sive, unjust and incompatible with liberty." I was amazed that 
 gentlemen ol the Legislature, whom I know and highly esteem, 
 could be prevailed upon to give their support, to a law so unjust, 
 not to say tyrannical; but they did more, they introduced a bill to 
 lautilate the ancient and revered institution of trial by jury itself, 
 that RobertSwan might be deprived of those privileges of selecting 
 a jury, which had been enjoyed by every man accused of crime, 
 for centuries before he was born. Gentlemen of the jury, Gover- 
 nors and legislators are subject to the contagion of public preju- 
 dice, as . well as other men, and when the minds of the whole 
 people of the State were poisoned by the slanders which had been 
 spread broadcast over the land, it was hardly to be expected this 
 men in authority should escape its influence. The cause of that 
 state of public feeling against this youth is easily explained. There 
 is a low, scurrilous, cut-throat, penny-paper, published in the city 
 of Baltimore, the moral worth of which would be dearly estimated 
 at the value of a penny, which ias made it a business since the 
 commencement of this unhappy affair, to misrepresent and vilify 
 Robert Swan. While every other paper of any standing in the 
 State has had the self respect to refrain from comment upon a 
 case already committed tj the laws, and which must come before 
 a jury for trial, the "Baltimore Sun" has purposely closed its 
 columns against the truth, anct thrown them wide open to the' 
 admission of calumny upon calumny, and lie upon lie. That 
 sheet, being the only channel through which information could 
 be obtained by the public, in reference to this case, and all its 
 statements being false and fabricated, it was not wonderfiil that 
 the public mind should be poisoned against this poor boy, and 
 the people of the State be prepared to hunt him down like a 
 beast of prey. 
 
 I now proceed to lay before you the facts more immediately 
 connected with the case you have to try. Gentlemen of the jury: 
 
IV. 
 
 It is aWayS painful to speak of the dead iii any other than terras 
 of kindness, but duty to the living requires, t^iat I should refer 
 in, distinct terms to some of those unhappy traits of character, 
 by which the late Wm. 0. Sprigg was distinguished in the com- 
 munity in v?hich hi lived. Of a temper fierce and turbulent^ 
 almost beyoftd example, it seemed to be the business of his life 
 to cherish revengeful feelings against his fellow man, and to seek 
 outedcaslons for their gratification. It was almost impossible, 
 ^o what you might to avaid it, to escape a quarrel with 
 hiffl. And whoever quarrelled with Wm. 0. Sprigg, must either 
 fight or succumb. If the instincts of peace led you to conciliate 
 him by mild language, it was sure proof to his mind that you 
 ^ere a coward and afraid to fight. In which case be would 
 pursue you, in season and out of season, with the moSt unmeast- 
 ored abuse. If notbing were left you but a fight, it must needs 
 be with dirks, pistols or othgr deadly weapoiis. I forbear to say 
 more ; the testimony will go ftr beyond what I have said of him. 
 
 The very reverse of all this is the character of Robert Swan. 
 Brive generous and kind-hearted, he never harbored a feeling 
 of revenge against a fellow creature in his life. A descendent 
 of General Jshn Swan of the Revolution, 'as brave a man 
 as any in the Continental Army, the grandson is a worthy scion 
 of the old stock. But gentle and conciliating as he is known to 
 fee, there are points beyond which his forbearance will not go. 
 And the evidence will abundantly show, that do' matter how 
 much roused and exasperated he may be, one kind word, will 
 cancel all offence, and make him as docile as a lamb. 
 
 On the evening of Thursday, January 22, 1852, there was a 
 'dancing party of the ladies and gentlemen of Cumberland, at the 
 large buildin'g which was just then finished, and which is now 
 called the " Revere House." The entertainment passed off 
 iiiost agreeably, and the kindest feeling prevailed, until at a late 
 Ijour, it happened that ,Wm. O. Sprigg and Robert Swan, 
 ijeihg in the same dance. Swan in a mere spirit of playfulness 
 turned alady whom it was Sprigg's right to turn. It was noth- 
 ing at which any gentleman ought to have taken offence, and 
 certainly was not intended to give offence to Mr. Sprigg. But 
 lie was not the man to allow anything to pass, which by any 
 ingenuity could be tortured into an incivility towards himself, 
 and seizing Swan by the artn, and pulhng him around with, 
 violence, he said " what in the hell are you doing h«re." His 
 conduct was as rude and offensive as it well could be, and those 
 who witnessed it rather wondered how' Mr. Swan could submit 
 to be thus treated, and for a moment he did seem disposed to. 
 resent it on the spot, but recollecting where he was, he walked 
 tjp to Sprigg, admitted he was out of his place, and apologised 
 for it. 
 
V. 
 
 The moment the dance was over Sprigg left the ball rooaa>^ 
 passed into the relVeshraent room on the other side of the pas- 
 sage, where he poured forth a torrent of abuse against Robert 
 Swan. He spoke so loud as to be heard by the ladies in the 
 other room. A gentleman took him aside and asked him what 
 had happened; he replied, " Swan had insulted him, and unless 
 he apologised he would lick hira the next day." The gentleman 
 alludea to immeiSiately communicated what he ha'l heard to 
 Swan, who declared that he- had apologised twice to Mr. Sprigg 
 and would do so again, but was afraid ^hat Sprigg would insu^ 
 him, in which case the entertainment would be disgraced by a 
 Ipravsfl. 
 
 The next day, being Friday, the 23d of January, 1852, pass^tj 
 over, and Swan hearing ncrthing from Sprigg, supposed the. 
 thing was forgotten. 
 
 On Saturday, the 24th of January, after Swan had taken hia, 
 pinner at the " United States Hotel," and was standing on the 
 pofph in Iront of the house, and on the side of the door, in con-, 
 versatian with Mr. Earrell, Mr. Spring stepped on the poFcb, 
 and advancing toward the door as if about to enter, he suddenliy 
 stepped' opposite wh^re Swan stpod, and deliberately spit in his^ 
 face. It will be in' evidence before you, by the admission of 
 Sprigg, that having determmed to offei" this brutal indignity to. 
 Swan, he armed himself for the purpose, with a bowie knife 
 fifteen inches long, which he carried in his bosoffljstating that his 
 object was, in offering such an insult, in so public a manner, to 
 compel Swan to resent it, in which case he intended to cut his 
 damned heart out; that he met Swan in th« street previously 
 during the day, but declined spitting in his face then, because, 
 there was no one with Swan to ivitness the indignity. 
 • Swan, at th-e time of this occurrence, was wholly unarmed; 
 butif hehad'been provided with atms, he was too much aston- 
 ished and paralyzed by the shock to use them. His firstitnpulse 
 •^s.s to send a challenge to Sprigg, but 'finding no one willing to, 
 be the bearer of his message, he started down street in quest of^- 
 viitj&s, and after some trouble succeeded in borrowmg^ a revolver 
 frota a friend. This he loaded and prepared fully for use, and 
 then returned in quest of Sprigg. As he walked up one side of the 
 street he saw Sprigg coming down on the other, and steppii;ig 
 diagonally across the street to meet him, Sprigg entered the office,' 
 of Br. Dougherty and shut the door behind him. Swan hur- 
 ried to the dboc and found it was locked. Sprigg remained in 
 the office until he found that Swan was gone, then cautiously 
 unlocked the door, stepped into a sleigh which had stopped for. 
 him in the street, and drove out of town; and thus it was, that 
 the man, who one hour before, had spit in his f&cej and was pre- 
 pared if h» resented it to btitcher hiin on the spot, when now 
 
vr. 
 
 challenged to meet him. upon equal terms, took shelter behiiid 
 the luck and key. Ii, was immediately thereafter, that Robert 
 Swan passed over the bridge to the house of Judge Perry. 
 The relation existing between him and this gentleman it is proper 
 lo explain to the jury. The second wife of Robert's father lives 
 with Judge Perry, who married her daughter. This lady is, 
 therefore, the siep-mother of Robert Swan, and the moiher-in- 
 law of the Judge. ' She is the only mother Robert ever^knew, 
 and has been as kind to him and as watchful over him, as if he 
 ft^ere a child of her own. It was naiural that Robert Swan 
 should go to her and to ih-; Judge for counsel or for consolation 
 in ail his troubles. On the occasion now referred to, he told 
 what had happened to Judge Perry, who was greatly moved by 
 the intelligence, and could not refrain from expressing his indig- 
 nation in decided terms. A good deal was said before it occurred 
 to him that he held a high and responsible officii^l station, and 
 that it might be his duty to arrest the parties, in which case 
 Robert Swan must be ruined, as it would at once be said, that 
 he knew before hand that it was the duty of the Judge to arrest 
 liim, and had therefore gone to the Judge to make his complaint 
 in order that he might be arrested. You will perceive therefore, 
 that the predicament in which Ihey both were placed was suffic- 
 iently trying, and under the circumstances the. Judge felt com- 
 pelled to exact from Robert a solemn promise that he would not 
 compromise him by ihe use of violence towards Sprigg. The 
 promise was made, there being no help for it, and you will per- 
 ceive in it an answer to those who have thought, that if Robert 
 haii shot Sprigg at the time of the occurrence or immediately 
 thereafter, it would have been all right and proper. 
 
 In the evening of the same day, Robert Swan went to the 
 Hotel, and opening the bar-room door, saw that Mr. Sprigg was 
 there, and invited him to come out, that he wanted to speak to 
 bim. Sprigg did so, and shut the door after Jiim. Robert then 
 said. to him that the indignity was of too gross a character to be 
 borne, that he could not live under it, and he proposed to Sprigg 
 that they should go alone to the stable, both being armed, and 
 there fight it out. To this Sprigg would not agree. Robert 
 next .proposed that they should proceed up stairs to No. 5 in the 
 Hotel, lock themselves in, and setde the matter there. Sprigg 
 first objected, that Swann might shoot him on the way up stairs. 
 Swan said no; that if he was afraid of a.iything of the kind, he 
 would go -first, and leading the way, Sprigg followed him. 
 
 But for his promise to Judge Perry, Robert might and proba- 
 ble would have taken a different course. It was after sun-down, 
 hut light enough reroained.to see what they were about. When 
 they reached the landing of the stairs, Sprigg requested the other 
 Jo stop. He spoke of his friendship for John Swan, Robert's 
 
VII. 
 
 deceased brother, of the friendly relations always existing betweeiil 
 their families, referred to the insult he had offered Robert, and 
 expressed his willingness to apologise. According to his own 
 declarations he was so much affected that the tears catne into 
 his eyes. Robert's nature here showed itself again; a kind word 
 would always disarna him. He turned around, and the two 
 young men sat down together upon the steps above the platform, 
 and talked the matter over. Sprigg in speaking of the 
 affair afterwards, said he was afraid he would shoot hirn in going 
 up stairs, and made the damnson-of-a-bitch go first; that he had 
 po intention of fighting him in tiaat way, but that what he wanted 
 was a fight with knives, that he might cut his dainned heart out. 
 
 The same evening Robert, in consultation with some of his 
 friends, determined that the apology as Sprigg had proposed it, 
 and which it was understood contained some condition, was not 
 such as he could accept. And upon the suggestion of a gentle- 
 man, in whose opinion he had confidence, he determined to 
 follow the example of Pleasants and Ritchie, at Richmotid. He 
 accordingly penned an invitation to Mr. Sprigg to meet him in 
 Perry's meadows, opposite Cumberland, in Virginia, each armed 
 as he might think proper, the survivor to take care of the slain. 
 
 He could prevail on no one to be the bearer of this note, as no 
 one was willing to incur the penalty. It was written on Sunday, 
 the 25th of January, 185$, although it erroneously bears date the 
 24th of January, 1852.* It was left at the Hotel in a box where 
 he knew Sprigg would receive it, and appointed the meeting for 
 Monday, the 26th of January, 1852, at 11 o'clock, a. m. That 
 Sprigg received this communication we know from other evidence 
 as well as from his own declaration. 
 
 Before the hour appointed, Swan, having arpaed himsey with 
 a brace of pistols and a double barrel gun, repaired to the place 
 of meeting, but Sprig-g did not come, as he declared to oihers he 
 had no intention of meeting Swan with shooting irons, but 
 ■when he fought him it must be with knives, and then he would 
 quarter him. To show how differently Swan felt, towards Aim, 
 it will be in evidence before you, that bi-fore departing to the 
 place of meeting, he declared it as his purpose, to receive Mr. 
 Sprigg's fire, and then fire his own barrels in the air. At the 
 same time, he left directions with his friend, what disposition he 
 -should make of his watch, and some other little articles, in case 
 he did not return. 
 
 When Swan returned from Virginia, not having obtained the 
 expected meeting, he was in deep distress, and complained that 
 he could find no friend to advise or assist him in bringing the 
 jnatter to any conclusion. At length, Dr. Scolley asked him 
 what he desired to be done. Swan "said he would be m^st 
 gratified if the matter could be amicably settled, and Dr. Scolley 
 
VIII. 
 
 |ihen agreed to lake it in hand, and ascertain if the affair could M 
 'brought tq Such a conclusion. He sought out Dr. Dougherty 
 with whose assistance, aftel: some little search, they saw Mr* 
 
 , Dr. Scolley said to Mm that he came at the requeBt of Mr. 
 Swan to know what he was willing to do. He said, moreoVerj 
 that Swan would accept an apology, provided it were an 
 ample on§. The Doctor suggested, that as the indignity was 
 'of the grossest character, the apology must be full and uncon- 
 ditional. Sprigg assented to what he said, and declared his 
 .willingness to make a;n apology. It was then proposed, proba- 
 bly by I)r. Dougherty, that Sprigg himself should write such 
 ^n apology' as he 'Was willing to sigii. Sprigg did so; the paper 
 was taken to Robert Swan, ' who' promptly refused to accept it. 
 Doctors Douggrty and Scoii^y w^re present, by one of whom 
 Mr. Swan was requested to pensudha paper as he Ivould 
 deem satisfactory. He did so. ' The paper waa taken to Mf. 
 Sprigg by both of the gentlemen named, and he refused tO piiiS 
 his name to it. These gentlemen, acting as the friends of the 
 respective parties, agreed to refer the matter to Saniuel M. 
 SemnieS, Esq., and to get him to draft such a paper as he might 
 deem suitablb to the occasion. It was accordingly done. The 
 -paper So drawn was first submitted to Mr- Swan, to whom it 
 Vras acceptable, and then presented to Sprigg who refused tQ 
 sign it. Dr. Dougherty was stating*, to Dr. Scolley, in the 
 presence of Swan, the portion of the paper as drawn by Mr. 
 Semmes to which Sprigg objected, and while he was speaking, 
 Swan rose' from his chair, and taking out his watch, with great 
 emphasis said, , " Dr. Doi^gherty, that paper must be signed by 
 Mr. Sprigg in one hour froin this time," and then resumed his 
 sqat. Within the hour the paper was brought to Mr. Swaii 
 with Sprigg' s name to it. ' "^ 
 
 Swan was mpst unajBFectedly and sincerely rejoiced at the 
 settlpment of the affair. , His cguntenance- brightenedup, a 
 mountain seemed to ,be removed fro^i his spirits.. He called 
 upon his friends; told them what had ocqurred, and expressed 
 his pleasure a^it. He, carried it to Judge Perry; showed him 
 •the.paper, but was greatly mortified and distressed that it did 
 noV.iwP^^sss the Judge as an aocommodation which a. man of 
 "honor ought to accept. Se criticized some portion of th0 
 apology, and regretted that xt had not; been omitted. Rob^rtj 
 mortified and disappointed at this, opinion ;of hift friend, hw^i 
 into tears and asked the Judge to poijit out wherein he had 
 shewn himself a coward. The Judge endeavored to cals!i him, 
 and at Swann's request,, they set out to sesDr. Scolley, Who 
 will say to you, that when, they reached his office Robert was 
 
 I? 
 
IX. 
 
 ■still m tears. It appeared from the Doctor's explanations that 
 tfee clause ' -which Sprigg had objected to, but which Swan 
 -determined -Should be retained, was the verj clause the Judge 
 cendemtied, and finding this to be the case, the Judge declared 
 himself satisfied, and the advice he gave to Robert was to abide 
 by what had been done, as a final and honorable adjustment 
 of the dispute. • • 
 
 Things remained in that condition for a Week, and on Tues- 
 day, th^-Sd of February,' 1852, Swan being advised by his 
 friends, th*t as the indignity wag public, the attonement for it 
 should be so a/lso, published the apology in the form 
 «f a hand bill. There was, however, a note appead'ed to itj 
 which Stat^ that the apology had been given iti dotiseefuence 
 '6f SwaB's itivitati'on to Sprigs to meet him in Virginia. And 
 as both Spr^gg and his friends have condemned this note, as 
 the reoetf al of a quarrel which had been Settled, it is proper 
 to is&ry, that Mr. Spvigg did not ivait for this publication to 
 re-<5ommence his abuse of Stvan, and that the allegation that 
 be did so, was all a sham. On the day he signed that paper, 
 on the day following, on every day, before and after the publi- 
 cation, he was heard denouncing SwaW in oyster houses, in 
 bsif-tooms, on the streets, in every company and to every one 
 vtho would Ustea to him, as a coWard, who was afraid to sh06t 
 a (ihibken. He declared that the aciceptance of an apology 
 fi>r such an insult was proof of his cowardice. Several persons 
 attempted to cheek and warn him that Swan was no coward. 
 And one or two persons said to liim, " Sprigg, Swati ;is no 
 doward, and as Sure as you live^ if you continue to Spfiak of him 
 in this way, be will Shoot y®U." But he would neither be 
 advised nor controlled, amd contiftBed to denounce Swan in 
 tenia's more iinmeaSured than before. ^ 
 
 Robert Swan left Gumberland oa the 8d of February for 
 HagerstoWn, with a mind ill at e&,se, for he had heard of the 
 &ttg6age lyhieh the other was in the habit of uaing al)oiit'him. 
 While m HagerStown, it was rematked that he appeared tobe 
 uneasy^ his cheerfulness was gone, and he moved about fi'Om 
 place to place, discontented and unhappy, aiid returned to 
 Gumberland on Satiir'day, the 7th of February. In the even- 
 ing after his arrival, he wrote a lettet to an inttaiate female 
 friend in Hagerstown, stating that he had received sure infor- 
 eatiott that Sprigg intended to^ shoot him; that Sprigg was 
 gt^tly provoked at the publioation of his apology, and the 
 tetter cometuded by informing her Vhefe she would find a cer- 
 taia paper in the ^v%at of his sudden death. He wrote also to 
 Jadge Perfy, thbh in Hagerstown, oommuriioating to hitn the 
 information that Sprigg had thf«atened to Shoot bifli, and 
 only Wanted the bppovtunity to do so. The last letter he wtbte 
 
■was to Spi-igg himself. It was like all his other acts, a mes- 
 sage of peace. It explained to the man of violence why the 
 apology was published, and concluded by saying that when 
 they met, if it was upon friendly terms, he would explain more 
 fully the reasons of his conduct. Putting the letter in the post 
 office, he sent word to Sprigg that it was there, with the request 
 that he should get it and read it. The overture was repelled 
 with scorn and abusive language. 
 
 The next evening, which was that of Sunday, the 8th of 
 February, Swiin opened the bar-room door of the hotel, and 
 seeing Sprigg there, said to him, " come out Will, I want to 
 speak to you." The reply was a torrent of coarse and violent 
 abuse. Swan shut the door and went into an<>ther room. 
 "Now," said Sprigg to those Avho were in the bar-room, "you 
 see he is a damned coward." Sprigg became loud and fierce 
 in his abuse. The bar-keeper endeavored to still him, but it 
 only made him Worse-. The bar-keeper then went to Swan, 
 and begged him to leave the house,,to prevent blood shed which 
 he was fearful would ensue. Swan said, " no, I shall stay 
 where I am, and will act on the defensive. If there is a fight, 
 I would rather be slain than take the life of. Mr. Sprigg." 
 His whole,, power of conciliation was -now exhausted; he could 
 do no more to appease his persecutor. He went into the bar- 
 room, passed by Sprigg, heard his abusive laDgu9.ge, for he 
 never feared him or mortal man, got a cigar at the bar, lighted 
 it, and again calmly walked out of the room. 
 
 Monday the 9th came, and the fact was communicated to 
 Swan that Sprigg was preparing to put out a publication; but he 
 had no certain information of what the publication was to be 
 until Tuesday the 10th, when a messenger from Sprigg inform- 
 ed him, that he would be denounced as a liar and a coward, 
 with the additional aggravation, that it would be sent to his 
 lady love in Hagerstown, to disgrace him even in her eyes.— 
 Swan remarked, and it was the strongest expression he ever 
 i^sed in connection with Sprigg's name — ■" This man wiU drive 
 jne to desperation." - , , 
 
 Crentlemen of the Jury, we have now reached the last, tlie 
 fatal 4ay, the Jlth of Feb., 1852. I ask your particular atten- 
 tion to the events of^it in their regular succession. In the morn- 
 ing, aboiit 9 o'clock. Swan went to the of&ce of Mr. Bomjin. 
 Deeply dejected, he itook a seat and, never moved from it, nor 
 opened his lips until 1 o'clock, when seeing Mr. Romaii about 
 to leave the room, he arose and .said that he had received cer- 
 tain intelligettce that Sprigg's threatened publication was in 
 the hands of the printer., and would appear the next morning. 
 He then requested Mr. Roman to prepare a deed of trust for 
 him to execute, conveyine all his property to Roman as trustee, 
 
xr. 
 
 who in case anything happened to him, might Sell it and 
 pay his debtfi. Roman put him oiF and declined doing 
 as he -wished. During the day he receired a warning from a 
 friend to be on his guard, as Sprigg had expressed his deter- 
 mination to take his life. 
 
 In the evening Swan was at the billiard room playing a 
 game with a friend. For it was a notion he had, taken up, that 
 while out in the world, no matter what his mental pertubation 
 might be, it was not becoming in him- to show it. And at times 
 when he would lie a whole day in his mother's chamber, speak- 
 ing to no one, noticing no one, and sighing as if his heart 
 would break; when he went into the street he would key him- 
 self up, and affect the appearance of the most entire unconcern. 
 
 While at the billiard table, Sprigg came in the room, squared 
 himself — set his arms a-kimbo, and stared in Swan's face for 
 fifteen minutes in the most offensive and bullying manner. It 
 affected Swan's play and attracted the attention of the keep- 
 er, of the table. It will be in evidence to you, gentlemen, *hat 
 about half an hour before, Sprigg declared to a friend, that 
 his mind was made up, if ever Swan spoke to him he would 
 take his knife and cut his d — ^d heart out. And here you will 
 find him endeavoring to provoke Swan to say something to him, 
 that he might carry his awful threat into execution. 
 
 Swan finished his game, put on his great coat, and leaving 
 Sprigg still in the billiard room, walked to his office, a distance 
 of a quarter'of a mile, took down his gun, which contained the 
 charges he had put in it for the meeting in Virginia. He re- 
 turned immediately to the billiard room, where he expected to 
 find his adversary, and of course expected to find and to fight 
 an armed man. He looked in at the billiard-room door. — ^ 
 Sprigg was not there. He then crossed the street to the hotel, 
 but did not expect to find his adversary in that place, his be^ 
 lief being that Sprigg was at a card table. 
 
 We now approach the- last scene of the tragedy." Withhk 
 gun in his left hand he advanced to the bar-room door, ptit his 
 hand upon the latch and throwing the door wide open, neaj-ly 
 in front of him stood a large, upright sto^e; behind it^was the 
 chimney; with room for persons to sit, between the stove and 
 the fire-place. A little to the left of the stove, Sprigg was 
 seated in a chair. Swan advanced three steps into the room, 
 brought his gun up to his eye, and as Sprigg reached a side 
 door leading into the yard, he teceived a few scattering shot 
 fi*om the first barrel, the principal part of the load lodging ih 
 the style of the door. Sprigg relinquished hts purpose of 
 escaping through that door, arid made for the door of the reiad- 
 ing room, about one step from which he received thie' contents 
 of the second barrel, and fell dead on the ■ftoor. All w^s now 
 D 
 
XII. 
 
 over. On the floor lay what had been Wm. 0. Sprigg, the 
 flexed limb, the relaxed muscle, the calm peace of death, in 
 impressive contrast with the scene of violence of the moment 
 before. His spirit with eternity, ^s much as those beyond the 
 flood, and Swan standing in the smoke of his own gun which 
 he still grasped, the most miserable man among the living." 
 
 It is proper here to say, that when Swan entered that door, 
 it was with the expectation of having a contest with an armed 
 man, without the slightest reason to consider his own chances 
 of escape better than Sprigg's. Behind that stove, which Sprigg 
 might have reached in a single step from the chair he occupied, 
 with a revolver in his hand, Sprigg could have fired shot after 
 shot with fatal precision. AH it required was nerve and cool- 
 ness; while his own person would have been securely protected 
 by the interposition of an iron bulwark nearly as high as his 
 head. Again, by throwing iip his chair as a. protection to his 
 head and vital parts, and then running into the other, he could 
 have realised the desire so often expressed by him of cutting 
 Swan's heart out. Providence designed it to be otherwise, and 
 Sprigg by taking to flight threw away all chance of escape. 
 
 There is however, gentlemen, connected with this part of 
 the case, another important fact, to which I beg your particular 
 attention. When Swan raised his weapon against the life of 
 his adversary, the issue of life and death was made, and there 
 was no retreating from it, and the escape of Sprigg through 
 the door, would harve left Swan in a room as light as day, the 
 lamps blazing all around him, exposed to the fire of his enemy, 
 who would have been concealed by the darkness without, and 
 in perfect sectirity. It was fortunate that he had two barrels. 
 The first having missed, his life depended upon the other taking 
 effect. The statement which, originating in the poluted source 
 to which I have alluded, has gone the rounds of the public 
 pres, that Swan deliberately sought out an unarmed man and 
 shot him d«wn, is a sheer fabrication. 
 
 Gentlemen, it will be abundantly in proof to you, that from 
 the beginning of this unhappy affair to its close, Robert Swan 
 never uttered one discourteous expression towards Sprigg; t£at 
 he strove earnestly to get out of the quarrel upon any terms 
 which could be deemed satisfactory among respectable people; 
 that he never could either find or make the occasion of such an 
 escape^ but was forced from one degree of mortification and 
 distress to another, until finally driven to desperation. You 
 will be surprised at Ihfi deep dan^l deadly rancor manifested 
 throughout by:Sprig^ it 'waB^ofi.erce as to appear unnatural. 
 There is however an explajiatiimfbr «v«n this. 
 
 Sprigg had a ikept miBtr«ss and it was one of his fancies to 
 believe^at Swan had interfered with him ; and th^ girl her-t 
 
self, wio was in fact, common to the whole town, finding that 
 a feeling of jealousy was rising up in the iflind of Sprigg, took 
 advantage of it to tease and worry him about Swan; and 
 thus it was, that a spirit of hostility had grown up in the breast 
 of Sprigg, of the existence of which Swan was wholly ignorant. 
 It will be in evidence by the declarations of Sprigg, that the 
 occurrence at the ball was not the cause of his quarrel with the 
 accused, but that it was an old grudge. 
 
 I have not drawn a fancy sketch of the case of Swan. 
 The whole of it will be proved to you by evidence so abundant 
 that you shall not doubt a word I have said. 
 
 TUESDAY, September 13. 
 
 The case was continued, when the examination of witnesses 
 was commenced on the part of the State. 
 
 Dr. Charles H. Orr. — Testified that he made an examination 
 of the body of Wm. O. Sprigg, at the hotel where he was shot, 
 and found a fatal wound in the neck, near the spine, at the base 
 of the skutl, passing through and piercing the socket of the right 
 eye. The wound was caused by shot enveloped in a wire car- 
 tridge, causing instant death. Size of wound, about an inch 
 external in diameter, and about six and a half inches depth. 
 There were slight wounds upon the right shoulder and cheek ; 
 those on the cheek passed through and cut the tongue. These 
 seemed to be stragling shot, of the first fire, and would not have 
 proved fatal. Assisted in stripping hira. Rather think there 
 were no arms about his person; but'did'^nt e^^amiue with that 
 view. 
 
 By defence. — No great coat on. The kind of cartridge used 
 are preferred by sportsmen in shooting a long distance ; in close 
 encounter they are as deadly as bullets. Did'nt examine his 
 pockets ; knew nothing of his being armed. 
 
 By State. — The charge ased more likely to scatter and pro- 
 duce greater amount of inflation ; yet not more likely to miss 
 than a ball. The fatal cartridge, enveloped in hair and clotted 
 matter, was exhibited by th6 witniess. 
 
 George Cromwell. — Knew Sprigg ; was in the hotel when the 
 killing took place ; deceased was sitting beside a stove, about 
 thirty feet from the door which the prisoner entered ; prisoner had 
 a double barrelled gun in his left band •, as he raised it, after 
 stepping about two or three paces in the room, and whilst Sprigg 
 was trying to' escape through a door near, leadmg to the back 
 yard. Swan fired at him, but missed. The deceased then ran to 
 get out of a door on the other sideof the room from the prisoner 
 leadmg into the reading room, and as he neared it Swan fired 
 again, when Sprigg fell, and died instantly. The prisoner there- 
 upon turned around, and said to those present, that his name was 
 Robert Swan, of Allegany, and said he had dose the deed. The 
 
36 
 
 prisoner thpn seemed cool and deliberate, Sprigg fell just inside 
 the door. The bar-keep&r came froiD behind the counter, when 
 Swan said, " Davy, I killed that man, and if any body enquires 
 for me, tell them they cah find me at my office." Sprigg did'nt 
 inove a muscle after he fell. It was just. after dark j at Heffel- 
 finger's hotel, Cumberland, Maryland. Saw no arms about 
 Sprigg's body. 
 
 By defence.-^Deceased could not as easily have reached Swan 
 as the door. Sprigg was attempting to open the back door when 
 the first barrel was discharged at him. Don't think deceased 
 could have seized the gun before discharged. Thinks the stove- 
 would not have screened him. 
 
 By the State— -Thinks, they were about thirty or thirty- five feet 
 apart at the first fire ; gwan opened the door quickly when he 
 entered ; didn't hear it open ; didn't see Swan before he entered 
 the room; he need not have gone towards Swan to have got 
 Vehind, the stove. 
 
 Pavid.Callan.^ — Resided in the hotel ; was behind the bar ; on 
 coming To* vyard Swan told him he had killed Sprigg, and so to 
 tell all who inquired about the matter ; said he wanted to give 
 himself up, and asked witness to go for an officer ; knew of no 
 arms aiiout the deceased ; Swan said he wished it expressly un- 
 derstood that he had done the act coolly^and deliberately. Re- 
 marked that some one should go for doctor. Swan said, " No 
 use to go for a doctor, be is dead enough." Sprigg had just 
 come out from sapper, an4 was talking to Mr, Haskeit. Heard 
 door open with Violence ; heard report of gun. Saw nothing 
 until Swan spoke on account of the smoke. Saw Sprigg nearly 
 every day, and was intimate ; he had no arms about him as wit- 
 ness knew of. Did not examine body that night; was not present 
 when it was done. Sprigg was sitting about twenty feet from 
 the door by which Swan entertd. 
 
 By Juror — Heard no word spoken by Swan or Sprigg -at th« 
 time of the killing. 
 
 George Anderson. — Was in the neighborhood j heard guns 
 fired, and went oyer; saw Swan, who said, " I've killed' WiU 
 Sprigg; there he lays;" Swan was anxious to give himself up. 
 Swan went down to Cowton's, where witness also went. When 
 witness remarked that Sprigg was dead, Swaii said he " shot 
 him as dead as h — 1 !" (so witness understood him to say.) 
 Swan'« manner seemed to be very cool ; spoke in a mild manner; 
 did not seem to be enraged; spoke to witness as he generally didi 
 J^new Swan very well ; saw him almost every day when in town. 
 
 C. I. Sktewart.— Resident of Baltimore ; was at the hotel hang- 
 ing bells ; was sitting in the reading-room, with face toward the 
 bar-room door ; heard the firings saw Sprigg fall ; prisoner said 
 he had ciope the deed, and asked vy itpesjs tp take hi© mto cuv 
 
37 
 
 tody ; thinks Swan was calm, or at least not more agitated thaa 
 he was, and no man could have been more unnerved ; Swan 
 continued for sora& titne walking the floor and asking' to be 
 arrested ; said he came there to shuot Will Spring, and that bis. 
 name was Bob Swan. 
 
 Edward T. "Summercamp. — Was in tfif parlor of the hotel'} 
 heard firing ; went' into bar-room, asked bar keeper what was 
 the matter; Swan replied," I killed ■ Sprigg " Took candl© 
 from bar and went to examine the body ; \vent back to the bar 
 where Swan was standing, and inquired, " Why did you do 
 this ?" Swan replied, " Because I am justifiable, and came for 
 that purpose. I didn't deny it ; I was as cool and collected as i 
 ever was in my life," 'and Walked from there to the door, when 
 some one spoke of sendirig for an officer; Swan said, " that's 
 right, send, for a Judge, a Sheriff, Constable, or whom you 
 choose— I am here." While prisoner was w'alking about th& 
 room, persons gathered around the body of deceased and inquired' 
 where he was shot. Swan replied, " in the head — ^I am a good- 
 shot and hardly ever miss ray aim." Somie one spoke to him, 
 and he said, "This is not all I^ave got ; I have plenty more m 
 case of any emergency." His manner was perfe&tly cool. • Ex- 
 amined Sprigg's body, thinks he had no arms. - 
 
 Denton J. Brown. — Was on jury of inquest; thinks ihere was 
 no arms about the rorpse. -- ■■. 
 
 John Gephart —Was in froret of the hotel; and heard the first 
 gun; did'nt see prisoner booking through the windows previously; 
 went in upon second report ; heard Swan>ay he had shot Sprigg. 
 
 Daniel L. Grove. — Had been sitting with deceased at the 
 stove, just .before he was shot. A person came to Cowton's 
 tavern, and said he had killed Will Sprigg ; can't say , the pris- 
 oner is tbe person ;; don't know prisoner. The person alluded 
 to had a double barrel gun. : . , 
 
 J. W.: Stonebraker. — Had seen prisoner in the hotel ; he gave 
 no manifestations of; feeling.; be was, sitting t'&lking; saw the 
 corpse; don't know about the inq.uest. . _■,-' 
 
 J. H. Seymour.— -Had called at Swan's office a day ot two 
 previous to the affair; was fthen :told of his troubles, and prisoner 
 said one or the" other would have to die. BSwan wanted tokfi'ow 
 whether Sprigg's brother (Randolph) was offended at him. Had 
 but one conversation with prisoneri in the course of which he 
 said that he expected one or the4ither would have to di«, mean' 
 ing deceased or himself. Prisoner wished witness to see Ran- 
 dolph Sprigg and find out >vhether he was offended, and was 
 very sorry on account of the friendship^ existing between "them. 
 Said he was on friendly terms with old Mf. Sprigg, and other 
 members of the family. The Court then adjourned. 
 
 At 3 o'clock the examination of witnesses was' resumed. 
 
38 
 
 H. J. McManee.— Saw prisoner on the night of the killing ; 
 was standing in front of Mr. Betts' store, which is some distance 
 from the hotel ; prisoner came a\ong, and said, " I have shot 
 him," and added, " I am better on the wing than sitting; ('or 
 standing) I shot him as dead as a partridge." Betts invited 
 prisoner into the store,.but he declined, saying he must go and 
 tell his mother. Witness then went to HeflFelfinger's hotel; de- 
 ceased was lying on the floor; it was before the jury was there ; 
 thinks deceased was lying at the corner of the door, on his left 
 side ; witness did not see him examined, nor examine him him- 
 self; saw no arms about him. 
 
 Dr. Moore. — Was in the jail while Swan was there; prisoner 
 said to a young gentleman, " tell Davis Richardson that I did 
 all an honorable man could do to have the matter fairly and 
 honorably adjusted," that he was spit on and grossly insulted, 
 and that he shot Sprigg coolly and deliberately, and would do 
 the same thing over again, under the same circumstances ; he 
 seemed to regret that he was forced to do it from a sense of 
 honor ; he regretted it on account of the friendship that existed , 
 between his family and that of deceased ; said when he saw a 
 certain paragraph in Dr. Scolley's letter, there was no alternative 
 left ; that he shot him not as a gentleman, but a& a d — d dog ; 
 that Scollay's letter (to be published) prompted him to the act. 
 A young man unknown to witness and a person confined for 
 counterfeiting were present at this conversation. 
 
 Cross-examined. — Had never mentioned prisoner's statement 
 to any one till last summer in his store, and afterward to old Mr. 
 Sprigg zni Dr. S. Smith ; thought it of no importance. Witness 
 wanted Gov. Thomas to come in his house only that he might 
 ask him if he would have to come down to the trial ; bad a con- 
 versation with Judge Perry, and told him he knew nothing of 
 the matter, called on Mr. Roman, at his brother's house, to find 
 out whether he must stay; tried to borrow money of Mr. R., who 
 consented, but subsequently declined. In coming from Martins- 
 burg did not say prisoner was a d — d rascal, and ought to be 
 bung; in coming over witness was in a condition to know what 
 he was doing. His visit to the jail was in the morning, in the 
 latter part of March or first of April ; went to see the condition of 
 the jail and the counterfeiter ; spoke to prisoner and shook hands 
 with him ; don't know of any woman, man or child in the room 
 except the one ether person. Witness had no particular reasons 
 for wishing Thomas in his house ; spoke to all lawyers on 
 Swan's side; did not negotiate with any one. Did not volun- 
 tarily come to the trial ; was attached ; said nothing else to 
 State's Attorney than to others ; begged to get off; motive was 
 to get home ; never said deceased was a murderer, etc., never 
 entertained hostile feelings toward deceased. 
 
89 
 
 J. Davis Richardson.— Saw prisoner in jail at Cumberland; 
 had a conversation with hitn; he said he had shot deceased ; nev- 
 er made up his mind to shoot him till that day ; from the facts and 
 circumstances that reached his hearing that day, there was noth- 
 ing left for him but to kill deceased ; prisoner said he went to 
 his office, got his gun, walked down street, loqked into billiard 
 room, went to hotel, did not expect to find deceased there ; ex- 
 pected to find him at a card table ; walked in the passage, put 
 his hand to the latch and pushed the door open, walked several 
 steps into the room, and fired two barrels in succession ; said he 
 passed one person on the street; it was a dark, damp night; held 
 his gun up and down his person ; went to billiard room looking 
 for deceased as he had left him there ; said he intended to kill 
 him wherever he found him. Prisoner expressed a great deal 
 of regret that the affair had occurred, as he had the best feelings 
 for the whole family ; Sprigg's sister especially ; he never con- 
 templated any thing of the kind until the day it happened. Mr. 
 Purvay brought a message to witness, but he had forgotten it. 
 Prisoner said he felt confident that he would be honorably acquit- 
 ted by a jury, as he was justifiable, and that all would be known 
 on the day of trial. Prisoner did not speak harshly of deceased, 
 but kindly of the family and not unkindly of deceased. Witness 
 and prisoner exchanged cartridges often ; can shoot twice as far 
 with shot thus enclosed than otherwise ; a cartridge will pass 
 through the air fifteen or twenty yards without scattering ; not 
 as deadly as a baU, outside of twenty yards ; said his gun con- 
 tained the same load in one of the barrels that had been there 
 some time. Witness thought a cartridge would be more likely 
 to kill than a ball within a certain distance^ 
 
 WEDNESDAY, Septembee 14. 
 
 The case was continued. The counsel for the State, after 
 recalling Mr. Brown, for the purpose of showing the distance 
 from Swan's office to where he went to get his gun, and the 
 billiard room, where he had left deceased, and the hotel where 
 he shot him, ^^ome six hundred yards distant,) announced that, 
 in the absence of other witnesses, the testimony on the part of 
 the State, in chief, was concluded. 
 
 The witnesses for the defence were then called, and those in 
 attendance sworn. 
 
 John Gephart, one of the State's witnesses, was re-called.—^ 
 Had said that . deceased was cool and calm immediately after 
 committing the act. He was walking the floor, with the giin in 
 his hand ; his face was pale ; his hands trembled ; and he seemed 
 agitated — considerably excited. 
 
 Geo. W. Clabaugh. — The defence put the following question: 
 " Were you present at th4 evening entertainment, in Cumberland, 
 on the 22d of January, 1852. [This alluded to the ball at which 
 
Missing Page 
 
41 
 
 it was the design of counsel on the other side to raise the issue 
 Bs to the right of this Court to decide thie question inasmuch as 
 it went to the power of the Court itself. He then went into a 
 succinct history of the practices and rules of evidence as long 
 established. Reviewed the debates in the Convention which 
 framed the present Constitution, to show that it was not designed- 
 to change the old system, which he regarded as eminently con- 
 servative of justice and incontestibly sustained by (he highest 
 authority and ei'ery principle of reason and ri^ht. He pictured 
 a scene of multiplied inconveniences and perplexities probable 
 to such a position as claimed by the other side, and spoke at 
 length in favor of the right of the Court to decide in the premises. 
 The Court took a recess from 1 to 3 o'clock. 
 
 Mr. Price, for the defence, followed, declaring his surprise, 
 that after one aide had been heard, through witnesses-^the 
 killing proven — in the coiirse of which the defence offered no 
 impediment — it was now gravely moved that his client should 
 not produce evidence of provocation — should not have told his 
 grievances ; thus warning the prisoner's counsel that thei* was 
 a settled purpose to interrupt them at ^very stage of the inves- 
 tigation. The prosecution, he characterised as Unrelenting 
 from its early start. 
 
 In reviewing the proceedings of ihe Convention-, and that 
 article of the Constitution, whiehdeclares that the ".jury shall 
 be the judge of the law and the facts/' in criminal cases, he 
 eontended that as the terms are general, the application thereof 
 must be general also. He denied that it was calculated to 
 work inconveniences ; but intended to set aside mere legal 
 technicalities and to secure justice upon the broadj plstin, just 
 principle of right and reason. He made numerous references, 
 arid defended that feature of the Constitution under which they 
 based their claim. He thought if the Couirt should decide that 
 the witness should not be interrogated so as to allow the defence 
 to begin with the first step in the chain of aggravatitig cif cam* 
 stances which led to so fatal a termination^ and they should bo 
 thus followed up, the juty would have to render a veirdiot simply 
 finding the prisoner guilty of the killing, without designating 
 the de^ee of the crime, and to this pointy he read a case, 
 before Justice BuUer, in which- Lord Erskin was engagett as 
 counsel ;; and wound up with an appeal to the Court, against 
 perpetrating what he conceived would be a great error, nftmtly, 
 the sustaining of the objection raised by the counsel f^r the 
 prosecution. 
 
 The argument concluded, Judge Tyson said he wftuld give 
 his decision to-morrow, to which time the Cburf (at 6 firelock,) 
 adjourned. 
 
42 
 
 THURSDAY, September 15. 
 
 The Court met at 9 o'clock, A. M., and responded to the 
 motion and argument of yesterday. 
 
 Judge Tyson delivered the following opinion : 
 
 "In the interpretation of a Constitution, or a'ny clause 
 thereof, we should first look to the Constitution itself. Every 
 clause of a Constitution ought to be so plain as to preclude all 
 doubt, when considered by itself, in connection, with other 
 clauses, or in relation to the scope and object of the instrument. 
 All previous debates on the formation of the instrument, and 
 every thing ^K wnde, should be excluded from our inquiries, 
 unless the clause is so ambiguous, as of necessity to require 
 them. Otherwise, we virtually make 4;he debates and matter 
 ali unde parts of the Constitution. I think the clause in ques- 
 tion is too plain to require such adventitious aid; 
 
 " If it were not, I have seen nothing in the -slightest degree 
 calculated to make it plainer, or to show us the intfint of the 
 framers of the Constitution. A proposition is made in convene 
 tion to incorporate into the Constitution a clause making the 
 jury in criminal cases judges of the law and the fact; an addi- 
 tion is offered to this clause, providing that there shall be a 
 bill of exce|)tions, and an appeal to the ruling of the iCoTirt, as 
 to the admiBsibility of evidence, the same as in civil- cases. 
 The pihrase, "the same as in criminal cases," implies that the 
 judge-would continue to decide upon the admissibility of evi- 
 dence, and that his absolute power to control the law of evidence 
 should be curtailed by appeal in addition to the destruction of 
 all his power over the law of the case. This addition tothe 
 original clause was rejected, leaving the clause itself to stand 
 as it did l)efore, and as it now stands, thus clearly to my mimd 
 evincing that the convention would not further control the 
 power of the Court ; but would leave them stiH'their old autho- 
 rity of determining absolutely the law of evidence. 
 
 " One member, and only one, alledged as a reason why be 
 opposed the amendment "that, the jury were already -absolute 
 judges of the law of evidence, and that the amendmeat would 
 curtail tlieir power. His opinion of the power of the jury was 
 not "sustained by a single member of the conventiouj but was 
 repudifited by some of the most enlightened of that body ; and 
 the remarks of those talented and experienced individuals— all 
 of them distinguished jurists— clearly show that in voting for 
 the origiDal clause, and in voting against the amendment, they 
 desired and intended to keep the law of evidence where it had 
 always been — under the control of the Court. The. debates, 
 therefore, in the convention, so far from showing an intention 
 in the mind of that body to give to the jury in criminsl oases 
 the power of Ridging of jthe law of evidence, do in fact show 
 an entirely contrary inteAti c 
 
48 
 
 . "The provision contained in the 5th section-, 10th article of 
 the Constitution ever was, and still is, a part of the common 
 k.w of the land, and -was, in the very form in which it there 
 exists, adopted into the Constitution. Grentlemen ask, with 
 earnestness, why was it adopted there, if it was no i to give 
 some additional powers to juries ? — arid as they had not, under 
 the common law the power of judging of the la^ of evidence 
 in criminal cases, they conclude that that is tlie power now 
 ciaiferred upon them. Some reason must have opera,t%4 in this 
 case on the mind of the convention; and as no other is obvious, 
 this must be the reason. But is there no oth«r obvious reason 
 for the ardoption of this section. To my mind, the debates and 
 proceedings connected with the introduction of tliia very clause 
 illustrate the reason Mr. Constable moved the following; 'That 
 the trial by jury, of all issues of fact in pivil proceedings in t^e 
 several courts, &e., where the amount in controversy exceeds 
 the sum of -five dollars shall be inviolably preserved.' Mr. 
 Constable said that, ' there was no guaranty in the Constitution 
 for the trial by jury in civil cases.' Mr. Spencer moved to 
 amend the amendment, by adding at the end thereof, the fol-. 
 lowing : ' And in the trial of all criminal cases, the jury shall 
 be the judge of the laW as well as of the fact.' Mr, Sp,enceF 
 said that he understood that there had been a xecent decisioH, 
 that the jury were bound by the opinion of the judge in matters 
 of law in criminal cases, &c. 
 
 '' Here we -see at once the very reason why this clause wa? 
 ado-pted — it was to guarantee in the Constitution of Maryland 
 the common law right of judging of the law and fact in criminal 
 cases. Mr. Spencer had understood that the right had been 
 iayaded, and he wished to put it under constitutional protection. 
 It was mere law and might, be legislated away ; it wa? subject 
 to the influence of Courts, and might be trenched upon till it 
 was worn away ; the Convention saw that invasion upon it had 
 fcomtnenced, and. therefore resolved to place it above, the reach 
 of time and chance, and clothe it with the imperishability of 
 the Constitution. It does not, therefore, cease to be common 
 law. It still stands upon the.anci«at records of our rights, but 
 it stands there guarded by the segis of the Constitution. 
 ' <' Being thus a part of the common law, and only protected 
 by the Constitution, it etands unchanged, and clothed with the 
 predate meaning which the common law and common under- 
 standing t)f the people had given to it for centuries. That 
 meaning is, that in criminal causes the jury shall judge of tha 
 law and facts of the caee, but th^t the court alojje shall judge 
 ttftlie law 'of evidence. 
 
 . ".{There is, geailemes, in my humble apprehension, a dis- 
 tinction b«tw©eji &« htw of » case and the law; ©f tbe eYi,4e&?9 
 
44 
 
 of a case. The law of a case — of a criminal case — is th6 law 
 which enacts the crime and specifies the ingredients which shall 
 enter into its composition. It is specific, and it is necessarily 
 applicable only to that particular case. The law of the evi- 
 dence of a criminal case is not particularly confined to that 
 case'-^is general in its character, and applicable to all criminal- 
 cases coming within its principle — as applicable to larceny as 
 to murder, to arson as to treason. The special law^ — the law 
 of the case^~the jury are, by the common law and the Consti- 
 tution, presumed to understand. The ^eneraHaw — the law of 
 the evidence of the Case — they are not presumed to understand 
 no more than they are presumed to know the universal law in 
 all its comprehension. 
 
 <' r will not attempt reasoning, ali inconvenienta, to describe 
 the consequences, certain and probable, which might result 
 from placitig this dangerous power in the hands of th« juries. 
 I would have to describe Pandora's box, open and in full and 
 deadly operation throughout the State. In my view, unregu- 
 lated as it would now be by any law providing for its definite 
 exercise, it would suspend for a time our criminal jurisprudence. 
 That no such law has been enacted, is sure evidence, to my 
 mind, that the enlightened gentlemen who framed our Gonsti-> 
 tution did not intend to confer this power. 
 
 *' Bat even if tbeire were doubts in my mind, on this subjeet, 
 although I am willing on all occasions to meet responsibility^ 
 yet I would deem it presumptuous to adopt an opinion not 
 entertained, as far as I can discover, by a single judge in 
 Maryland. A very able judge, formerly Chief Justice of this 
 State, and while so acting, after the adoption, of the Constitu- 
 tion, and before the expiration of his term of service, (I mean 
 the Hon. Thomas B. Dorsey,) had this very subject before him, 
 and after argument, decided expressly that the court only and 
 not the jury, were constitutional judges of the.law of evidence. 
 Judge Dopsey was a member of the convention, and the journal 
 of debates shows that he was not only aware of, but partici- 
 pated in, the discussionon the subject of the 5th section of the 
 10th article of the Constitution. The case to which I allude 
 was the case of the State vs. Stewart, for murder. 
 
 t* The court, for these reasons, overrule the proposition." 
 
 A question then arose as to the privilege of counsel for the 
 defence or the State, in opening and closing argument before 
 the court as to the admissibility of the evidence proposed to 
 be given, viz : The difficulty between Swan and Sprigg at the 
 ball, alleged to be the origin and starting point in the traiifof 
 circumstances that led to the killing. There being no general 
 rule, nor special rule of this court, the common practice of the 
 eourt, as stated by Messrs. Roman, Alvey, Sye8ter,Motteif 
 
45 
 
 and others, was adopted, and counsel spoke to tbe point in the 
 order given below : 
 
 Mr. Price said the defence had called a witness to show the 
 commencement of the wholetransaction, beginning on the 22d 
 of January, and fatally terminating on the Hth of February, 
 1852. This was desirable to show a chain of circumstances to 
 take one link of which away, would weaken the force of evi- 
 dence as a whole. He held this to he essential to the formation 
 of a just judgment of the jury, and a privilege which his client 
 could not be either legally or reasonably deprived of. , He 
 referred to the incidents, (as given in his op«-ning address,) to 
 show th&t the prisoner had been tortured to desperatnion. He 
 referred to authorities, (Eoseoe, p. 22 ; 1st Starkey, p. 11 j) 
 and intimated that a denial of the right claimed, would be' a 
 ground for carrying the matter to a higher tribunal. 
 . Mr. Harbine, State's Attorney, said he felt it a duty to, 
 interpose against the introduction of testimony which he did 
 not believe pertinen^t or material to the cause. The mere 
 killing, he regarded the only issue; otherwise a party might 
 BO time his actions and give utterance to ex^pressions^ as to sttit 
 his purpose of defence in a case of killing. (1st Greenleaf, p. 
 136, sec. 108.) Nothing that took place prior to^the day of 
 killing, could be given in mitigatioa — (1st Russell, p. 113 ; 
 Wharton, p. 368 ; Greenleaf, p. 113, 116, 125 ; 2d Starkey, 
 p. 724.) There being time to cool, antecedent circumstances 
 could avail him nothing^(lst. Russellj p. 483 ; Wharton, 376, 
 377, 378, 428; Wharton, 125. 
 
 Mr. Thomas, on behalf of the defence, argued the question 
 as coming within the privilege of the jury, and not. the Court. 
 He w^ent into a review of the authorities, to show that the evi- 
 dence proposed to be given was part of the res^^esia. Starkey, 
 p. 12; Gill and Johnston, 210. He depicted the cause of the 
 deceased, and in regard to his client, immediately after the 
 killing, said that " hie who bravely stormed the batteries of 
 Mexioo, wept and blubbered like a boy ;" and urged the just- 
 ness of allowing an opportunity to show that he had committed 
 the act under a frenzied state df inind, growing out of a train 
 of aggravating circumstances. '" 
 
 The Court took a recess from 1 to 3 o'clock. Upon again, 
 assembling. Gov. Thomas concluded his arguments. 
 
 Mr. Gordon followed in behalf of the position assumed by 
 the State. 
 
 Mr. Spencer commenced an argument on the other side, but 
 had not concluded when the Court adjourned. 
 
 JPRIDAY, Septembbb 16, 
 
 There was but little progress miade in the triaKof this cas« 
 to-day. 
 
46 
 
 Mr. Wolf, foreman, of the jnry, was absent, by general con- 
 sent — a bailiff attending him — in consequence of the death of 
 one of his children. . ' - 
 
 The argument as to the admissibility of certain testimoriy 
 was continued. . - 
 
 Mr. Spencer concluded his argumeiit> commenced yesterday. 
 He said it was proposed to prove the occurrence at the ball on 
 the 2l8t of January, as the beginning of a series of ruffianly 
 and provoking acts and threats, by the deceased, followed up 
 and uuintermitted to the time of the catastrophe, which ia 
 GOnnefition with antecedent acts on that day and immediately 
 preceding the event, justified. Swan in believing that be was 
 6bliged to kill Sprigg in order to save his own life,: and that 
 the killing was not through malice. It was proposed to prove 
 a series of ruffianly and harrassing acts by the deceased, which 
 deprived Swan of his reason, and rendered him irresponsible. 
 ' He- maintained that the applicability of the testimony was 
 a question for the Court ; but it was for the jury to weigh the 
 testimony. He understood the other side in objecting, to the 
 testimony, to take ground, that the Court must weigh the wholes 
 testimony and ascertain its Buftciency to prove an instigation 
 or jtistification, before any part should be admitted — to this 
 the defence took issue, and say, such a principle would: make 
 the Court heirs of both la^^ and fact, and supersede, the powers 
 of the jury, leaving them nothing, but to decide upon the 
 <jredibility of the witnesses. The effect of the proof he main- 
 tained is exclusively for the jury -^and ought to be admitted 
 upon the assurance of the counsel of the purpose for which it 
 was offered. . 
 
 t Mr. May, on behalf of the State, spoke at leagA in eppoeffi- 
 tion to the ground aasuined by the other side, 
 
 Mr. M. having concluded, the Cpurt took a recess from 1 
 to 3 o'clock. 
 
 The Coruf t having again met, Mr. Pearre, for the defenfle^ 
 ^ke until near 6 o'clock ; and having concluded, tiie Court 
 ftdjtmrned. - 
 
 ■ •: V ; „ SATURDAY, Septkmbbr 17. 
 
 Court met, when Judge Tyson proceeded to deliver the fol' 
 lowisg decision : ' ' - ' "'■■' 
 
 " The State of Mai?y;Iaa]td,.by its witnesses, having made out 
 K p/Smo/octa case of murder, in the first xiegEee, it is incumbent 
 on the prisoner, if he can, to offer in evidence circumstances 
 isf juetjfitjaiio'n, excuse or parlliation. For this purpose lis 
 counsel have brought to the stand a witness by whom they 
 expfeotto prove, that on the night of the 22d of January — 19 
 d»y8 before the di^ath'of the individual alleged to have been 
 murdered— an outrage was committedupon the prisoner \fikA 
 
4? 
 
 deceased; tLat this outrage was followed by anofJier, ainl 
 grosser outrage; and that this was followed by a succession of 
 provocations and indignities, up to the very day of the alteged 
 killing. That these outrages and provocations, operating with 
 consecutive and combined force upon the mind of the prisoner, 
 aroused his passions beyond tne point oS human endurance, 
 dethroned his reason, and led him, in this condition, of mental 
 distraction, disorder, to kill the deceased. The object tif the 
 defence being to show a succession of provocations up to the 
 period of the catastrophe, it will be unnecessary to injquireiiiito 
 tliie.' point raised by the counsel, with r«gard to the 'tepgtb of 
 time necessary to make ajny fact a part of the res gesttB, or into 
 the question whether the fact to whieh Mr. Clabaugh is to 
 testify, was or was not too remote to form a part of the trans- 
 action. Continuous action, or rather a series of actions, mhe^. 
 brought down to the period of the main transaction, !$.nd con- 
 nected with it, are tantamount to a single action, or event 
 occurring at the tim«,'anddo unquestionably constitute a part 
 of the res gestis. Although composed of separate Knbsj- th^ 
 form one chain. 
 
 " Every case of lioaaieide is a tragedy in real life of one |ict, 
 and wijih severalT-rsometimies many scenes. It rhas its exists 
 and its entrances, its catastrophe and its unity.. Its character 
 sail be impisrfectly understood, if , any scene be omitted Thesa, 
 altogether, constitute the res gestce — the unity Df the pieeje. 
 Whether the catastrophe ends in murder or excusable huoiinlcidie, 
 is generally illustrated by what goes before, and sonietimes by 
 whatjfoWaios the fatal deed. Erom the statement made by tjie 
 jRrisoaer's counsel, it would seem S;hat the fiust scene in diip 
 drama was the affair at the ball room. The flpittiijg in ihe 
 prisomer's face was the second ; and then follt),wed in ordiex the 
 eabseqneBi avents which arose in successiah out of thart ^sgault; 
 What effect the conduct of the deceased towards the ^iso^xer 
 ia l^eae scenes may have bad upon him-^hofir 'fa«F itbey raaij 
 haiv^ipperated in law attd fact to jststi%, excuse, onpaliate ihb 
 horainidie,. or whether they had any su,Qhe£^t, is a matter '£or 
 the exclusive coiiBid6ration;,df the; jury. The constitixtioiafaas^ 
 m a ia«st esEtphatie manner, inade them jadge3'x)f 'the law ^ and 
 facts of the case, and it is the dut^ of the'iGcw^t to guacdthts 
 power with dragon rwateh against their own iand ^etveiiy other 
 encroachment. I can easily see t^at the imost ready meaps by 
 which Ihe iGTourt can trench upon -thiB*ighti are through its'own 
 power of deciding upon the ^admissibiiil^ of evidence. Undflr 
 cover t)f'exeirei^ing that poWier,iitiiaayitake the law /df'tihie case 
 0ii>t of to hands of l^e jury; one innovation mayl«aditd 
 another, until at length the whole power vanf' be tqijien^iwagf. 
 Ijam ^aftisfied 'that I co^ldnuri; n^eot^ithejendeuee noiWioffiet^ed, 
 
48 
 
 vrithout deciding the law of this case, and thus depriving the 
 jury of their constitutional privileges. UnderNOur law of 
 homicide which requires that a killing shall be not only wilful, 
 but deliberate and premeditated, to constitute it murder in the 
 first degree, and which denominates all other murder, murder 
 in the second degree ; a wide door is open for the enquiries of 
 the jury. The character of the accused, his metaphysical nature, 
 his susceptibilities, his temperament, the nature of the provo<- 
 cation, its actual effect upon him, whether he had a reasonable 
 time to cool, or was sufficiently cool to have commanded his 
 actions ; all these may enter into the consideration of the jury. 
 Let it not be understood that, in thus permiiling this testimony 
 <o go before the jury, th»t I endorse it — that is, that I pronounce 
 it caoclusire for the object for which it is offered, even in sup- 
 posing the testimony to be in its fullest extent, what the counsel 
 for the prisoner avow it to be. All the Court tloes, is to permit 
 it to go to the jury, weak or strong as it may be ; when there, 
 it is their constitutional right to judge af it according to law; it 
 is their moral and religious, as well as constitutional duty, to 
 judge of it according to their oatbs." 
 
 The examination of Mr. Clabaugh was cominenced, who de- 
 posed that he was present at the evening entettainment given in 
 Cumberland, at Mr. Heffelfinger's hotel, on the 23d of January. 
 Late in the evening, whilst dancing perpetual motion, wiiness 
 standing aside, Sprigg caught Swan violently by the arm, fling- 
 ing him off, saying "Get out of the way, you are out of yeur 
 place." Swan said, "Will, I am wrong, I was out of my place " 
 Sprigg's manner was very rough ; he gave prisoner a heavy jerk; 
 prisoner's manner was very humble; didn't hear Sprigg say any- 
 thiflg of prisoner's courage ; can't say what prisoner bad pre- 
 viously done; didn't see prisoner turn the lady; was not no- 
 ticing ; it was late in the evening, such time as parties are apt 
 to get excited s described the dance as quick; and any inter- 
 rupton unusual,but no iiesessity for rudeness ; thinks Sprigg must 
 have heard the apology; deceased, at the time it was given, 
 riiook his head, seemingly in anger; had never said deceased 
 didn't hear the apology; had told James Sprigg of the matter, 
 who said, " Will didn't hear it ;" am positive I never saii he 
 didn't hear ; Swan's lady was t^en seated ; if my partner had 
 retired I shouid have done so alsoj was surprised at the manner 
 that prisoner received the repulse. 
 
 Dr. Charles L. Scolley. — Was present at the ball; heard a 
 difficulty had occurred ; went to prisoner, who said it had hap- 
 pened in the dance ; that he had apologised to deceased twice ; 
 had communicated to deceased what prisoner had said ; prisoner 
 bad apologised twice, and he believed deceased had heard him ; 
 aiksd prisoner to accompany him to deceased, supposing 
 
49 
 
 deceased might not have heard the apology ; acted voluntarify ;' 
 vrent afterward to the supper room ; took deceased asule, com- 
 municated to him the fact of prisoijer apologising, and saying^he 
 had no ill feeling; deceased denied that prisoner had apologised; 
 wanted deceased to gb to pfisoner; that he wou}d be a witnes«' 
 to a verba] apology ; iS>prigg declined, and said Swan must coihe ' 
 to him ; whilst talking, Wm. O. "Sprigg, of Michael, his cousin, 
 came up and said to deceased, you are makingafool of yourself; 
 deceased said he would not allow any lelative to make use of 
 any such language to him ; Mr. Spriggthen left them ; deceased 
 uttered oaths; was much excited, and evidently under the influ- 
 ence of liquor; he was much more excited after his relative left,, 
 and said he would take the first opportunity to insxilt Swan, 
 either by boxing his ears or sp\tling in his face ; witness returned 
 to prisoner, found him more excited than previously ; prisoner' 
 said he bad been informed by a servant, that Sprigg intended t& 
 shoot him ; and he had concluded to let matters take their course; 
 had not communicated to prisoner deceased's threats ; consider- 
 ing they grew out of his excited state ; didn't communicate to" 
 prisoner what he had said to deceased. 
 
 Wm. B. Barrel!. — On the 24th of January, after dinner, was 
 standing with prisoner at the door of the U. S. Hotel, where 
 prisoner takes hi"? meals ; deceased came up the street, crossed 
 over to the porch in front of prisoner and aiyself ; halted ', delib- 
 erately spit with force in jirisoner's face; witness received some 
 of the spray in his own face; witness asked deceased what he 
 meant ; deceased, turning, waved his hand towards prisoner, 
 satisfying witness it was intended for prisoner; witness had heard 
 nothing previously of the quarrel; deceased, a short time after, 
 turned and went away ; witness asked prisoner what it meant, 
 but he did'nt say what led to it; but said^ what shall a man' do, 
 I am calm and collected ; but he was, really^ any thing else ; 
 prisoner further said, " I have but one thing to do." Prisoner 
 did not say what the one thing was, but witness thought he 
 understood him ; about five minutrs afterwards, prisoner inquired 
 if he could get any friend t* take a challenge. Witness told 
 him no one would carry a challenge. 
 
 Cross-examined. — Saw deceased next at Dr. Dougherty's 
 office, about two hours after ; on first going to the door, witness 
 found it locked ; called to Dr. Atkinson, who he supposed was 
 inside ; Sprigg, from the inside,. asked " who is there .'" witness 
 informed htm; deceased asked if any body was with him; ha 
 informed hiin there was not ; was admitted, .when deceased agaiir. 
 locked the door ; about five or ten minutes after, decea«ed le/% 
 in a sleigh ; bad told deceased h« was safe, and on goin|«,out, 
 h< looked up and down the st.Tet, got into a sleigh and d/ore 
 
 F 
 
5Q 
 
 off; witness, Henry R. Atkinson, and two or three others, were 
 in the Doctor's office ; don't recollect who was' in the- sleigh ; 
 thinks this was about two hours after Ihe pccurrence ; deceased 
 said he had understopd Swan was armed with a revolver, and 
 that he had been at the door, and that he, deceased, was waiting 
 for a pistol; don't know that he was armed ; this all occurred on 
 the same day ; when prisoner was spit upon, deceased walked 
 axay at his usual 'gait; did'nt stop to answer my question, and 
 walked away so quick, that deceased could not have struck him; 
 was waiting for arras, that he tnight meet hira on fair terms ; 
 heard nothing, at that time, of deceased's being armed. 
 
 . J. Philip Roman. — ^Met prisoner and Barrell in Ihe afternoon, 
 on the corner of Centre and Baltimore streets ; prisoner called 
 bim aside ; after a few moments' conversation, prisoner passed 
 across the street; and turning, saw deceased coming up the 
 street ; witness turned his I'ace aside, \n going off, expecting a 
 rencontre. Deceased was outside the office when prisoner went 
 over. This was about 2 o'clock ; witness walked to the corner 
 of Baltimore and .Liberty streets, when prisoner came over to 
 him ; Saw nothing of deceased then ; had turned his back because 
 he did not wish to be a witness ; prisoner joined him again about 
 four buildings off. 
 
 Cross-examired. — Knew nothing of the spitting, when he met 
 Barrel! and prisoner; had stopped to speak to Barrell, when 
 prisoner called him'aside, and said Will Sprigg had spit in his 
 face; witness said, "is it possible." Swan replied, it is; wit- 
 ness said •' why did'nt you shoot him ?" iSwan said, " yonder 
 he is now," and passed over in the direction of deceased. Wit- 
 ness then turned his back ; prisoner had not said he was going 
 to shoot him ; Barrell could not have been far off; when prisoner 
 returned, he said " see that, he locked t-be door;" and said he 
 wanted to converse with witness, but nothing further took place 
 then; thinks- prisoner told him Sprigs; had" spit in his face, 
 without saying -i word ; had heard of the ball-ioom affair before 
 saying, " why don't you shoot him ?" 
 
 Mr. Barrell, recalled. — Prisoner asked me to cross the street 
 wiih bim, to meet Miss Molly iSprigg, sister to the deceased : 
 when prisoner told her that Will had spit in his face, and there 
 was only one thirigleft, which he was sorry for, from his respect 
 for her and family ; he did'nt say what that one thing was. 
 
 Crdssexarained.-^He saw Miss Sprigg home ; met prisoner 
 again about half an hour after; corner of Baltimore and Mechanic 
 streets; prisoner said be was going to Dr. ScoUay's office; can't 
 sav whether he had arms then; had heard him regret not havipg 
 arms when spit upon. 
 
 Henr_y H. Ain&worth. — Deceased said he Was prepared at the 
 
51. 
 
 time of spittiog, and showte^ a bowie knife, wbich he then had ; 
 deceased asked witness if he had hi^a^rd of the difficulty^ replied, 
 "yes, you have spit in -iSwan's face ;" told him he shouid noi 
 have done so, that prisoner had been in Mexico,' and was a brave 
 man ; deceased said that he had given him a chance to show his 
 bra-very ; thai he had insulted a lady., and he would have cut his 
 damned heart out if he had moved his hand when he spit in his 
 face ; the knife was the largest size bowie knife. 
 
 Cross-examined. — Sprigg said he .had seen a friend who 
 a(Jvised him to spit in Swan's fa«e. 
 
 In chief. — iSprigg at another time, when asked, " Suppose 
 any one should spit in your face, what would you do ?" Ha 
 jeplied, " I'de like to see any d — d man spit in my face^ if I 
 could not shoot him down, I'd strike him any how." 
 
 Judge Perry. — "Whilst at dinner, prisoner called him out and 
 said, " Will Sprigg has spit i-n my face;" spoke to him, and 
 alluded to a similar indignity that had been offered our Saviour 
 as the highest insult that could be offered ; Mr. Van Lear was 
 there, a-ndsaid it was not a case of challenge. [After narrating 
 •cireuinstances of iSwan's intimacy and cnnn'ection with the family, 
 his affected manner during his vi«il at leaving, Judge Perry put 
 him under promise that he would not comproniise him as a judi- 
 cial officer by any disturbance of the peace.] Thinks prisoner did 
 sa'y that evening it would be arranged ; had no knowledge of his 
 being armed. Court adjourned. 
 
 3 o'clock, P. M. 
 
 Mr. Barrell, recalled. — Had conversation with deceased soon 
 after the spitting in his face ; said he did not apprehend danger 7 
 his object was to get prisoner to challenge him; would then have 
 choice of weapons; would not fight with pistols or rifles, but 
 would choose butcher knives, and would cut him to pieces; 
 tieceased said he had been insulted very grossly at the ball. 
 
 Arthur Johnston. — Lived at Cowton's hotel.; about 'g^sk on 
 the evening of 4th February, was standing with deceased at the 
 door; prisoner came over, and said, "Will, I wish to speak to 
 you ;" deceased ran his hand into his side pocket, and walked 
 towards the door; prisoner wanted him to walk on the commons 
 with him ; he declined, but afterwards went up stairs to fight it 
 out; as they came down, deceased said it is iir the hands' of 
 friends — let th6m settle it; they then separated. iSwan boarded 
 at the house. They were up stairs ten or fifteen minutes. On 
 the 8tb, was reading a letter to deceased ; prisoner came to the 
 door, and said, "Will, I wi.ih to .'■peak to youi" Deceased 
 remarked, " clear out, you G — d d — d cowardly, lying son of ;i 
 b — h ; you are one, and I will prove you such to the v?orld." 
 Piisone; turned and went into the dining room. -.(Spiigg said, 
 
5Z' 
 
 '«'to show he is a d — d coward, let him. resent that if he dare." 
 While prisoner was at dinner, deceased was still abusing hitn. 
 Prisoner was" asked how he could stand such^abusej to which he 
 replied, he wished to act on the defensive. Prisoner came int> 
 the Bar while deceased was cursing hira; lit a cigar and passed 
 out. Next day, witness remarked to deceased that prisoner 
 would be apt to chaWenge him ; deceased said if he did, he would 
 have the choice of' weapons ; witness said he of course would 
 not use any weapon not used in the duellist's code; deceased said 
 he would choose bowie. knives, ground as sharp, as a razor ; - 
 would knock-'him down with his left hand^ and cafv« him up 
 with his right. Beceasedcame-to me- before publishing letter in" 
 Cumberland paper, saying he intended doing so, stating that he- 
 had called Swan a coward, a scoundrel andliar, and wished me- 
 to be witness to that fact, the reason-tor this was, 'leceasedsaid' 
 he did noLbeara very good character in Cumberland, and wanted- 
 witness to sustain him. 
 
 Cross-examined. — Did not say that deceased jumped up, and ' 
 said, " I. know 'What you are after ; I am ready for you," or tha5 
 Swan threw up;his arms and said, "Will, I came for a different pur- 
 pose." Didn'lhear-Swan ask-<Jecease(l what he would do, if he 
 would apologise for his conduct at the ball, or hear deceased say he 
 •i.ould make such apology as any gentleman ought to make. 
 
 William P. Wood; — Had some conversation with deceased ■ 
 relative to the occurrence ; deceased spoke of being called out 
 by Swan to the meadow, and-to go up stairs. He said he had ' 
 made the d — d son of a b— h go before him ; be narrated (h-^ 
 invitations of Swanto fight it out, and said he proposed settling- 
 it by friends, and would make any amends any honorable man 
 coultt make, but from Swan's continuing-the annoyance to his 
 sister and family, and saying he would shoot him, deceased con- 
 tinued hisdenunciations. While speaking of Swan's cowardice, 
 vvitness^^marked to him that he might be mistaken in his man, 
 that Swan had be'en tried;' and he had not. Swan h^d proved • 
 himself a brav« man in Mexico, and witness said, " if youcross- 
 his path, he'll shoot you, iy G^-d ;'' deceased said he had' pot 
 received the-ch8J'^"g^ ^° g° '" ^^^ meadow in time ; told Sprigg 
 ficrliting was like small "poxy after through the first attaekit was r 
 not so bad", -that Swa« h^d been- through it, and h6 had net. 
 
 Cross-examined.— Told- Swan what deceased had told him ; 
 dun't knOTv that I toldhimall^only the substance. Tibld^Swan ' 
 ta be Off his guard, that deceased was still threatening him. 
 
 Court aifijourned. , „ „ 
 
 MGNDAYj September 19.'. 
 
 Xhe Co»tt raet ; when ,. ^ u , 
 
 Mn.ptrilBsprQceeded-ito readithe pjip«rs which had passed 
 
58 
 
 'between Sptiggaiid Swan. These papers consist of the chal- 
 lenge from Swan, with the note appended — ^Ifae statement of 
 Sprjgg ; the letters of .Dr. Scollay, Dr. Dougherty and Mr. 
 Serames. The exan^ination of testimony was then resumed, by 
 the recalling of 
 
 Dr. Scollay^ — ^Who testffied that his first* kno\^ledge of the 
 , affair afrer the ball, was on Saturday, the 24th of January; pris- 
 oner and Barrell dined with aie at Cowton's.; Swan and Barrell 
 had finished dinner and walked out ; I joined them shortly after, 
 - when Swan said to me, " Sprigs has 8pit"in my face;" I turned 
 to Barrell for explanation, who said he had asked deceased what 
 it meant, whf»i Swan answered that it was intended for him : 
 rSwan then said if he could gel a friend to carry a challenge, he 
 would challenge him to fight him with rifles at ten paces ; did'nt 
 see Swan again for fifteen minutes*, Swan asked him togo with 
 him into Mr. Tnber's store, to get a revolver; saw nothing moie 
 ■of him until late in the evening of that day.; I was at Belt's 
 store; Swan came in and took a seat, he said he had jusi seen 
 Wra. O. Spngg, had an interview with him ; that he called on 
 Jiim ; Sprigg drew a revolver ; Swan said that was not the 
 proper place to -settle the difficulty; Swan then invited him to 
 ■go either to the stable or No. 5; deceased objected to going up 
 stairs before him, for fear Swan would take advantage of him ; 
 Swan disavowed any such, intention, and ofifered to precede hira, 
 which he did ; he then staled that after they got upstairs Sprigg 
 began protestations of friendship for his brother John Swan; that 
 Sprigg did this with tears in his eyes,; that he expressed regret 
 at spitting in Swan's face, arjd that he believed Swan did not 
 intend to insult him ; that deceased had offered to give him a 
 written apology if Swan would say, verbally, that he did not 
 intend to insult him. Swan then asked witness if he did not 
 think deceased had acted cowardly; didn't see Swan until next 
 day, at a late hour of the night.; he then informed me that he 
 had challenged Sprigg to meet him at the meadows, in Virginia, 
 at 11 o'clock, and asked me to .lend him my pistols; prisoner 
 stated that he intended to go to tht; ground armed with a double 
 barrelled gun and pjstols ; if Sprigg came with pistols only, he 
 would throw aside his gun ; that he would endeavor to draw 
 Sprigg's fire, and if he succeeded,, would discharge his in the 
 air; that he ^ould do so, not so much on account of Sprigg, 
 as on account of his, regard for Sprigg's sister and the family. 
 He took the pistols and left my oJSce — they were the old-fash- 
 ioned duelling pistolg. .Next saw him on the day of proposed 
 meetipg; came into my office about 10 o'clock, wrote a letter to 
 Captain Archer, requeslitjg him to have it mailed in case of 
 jKtcidexit to himself.; left his watch, seals, &c., with a request as 
 
54 
 
 iff their disposkien in case of his death ; he lett shortly before 
 11 o'clock. About 11 o'clock I Jiad rny horse saddled^ rode 
 dawn oppiosiie Perry's raeadow'sJ; saw Swan sitting on the fence 
 near the orchard ; Swan hailed him ; about 1 o'clock Swan-came 
 to ray office; I to\d him I thought there was some misunder- 
 standing ; Swaa thought so too ; he remarked that he didn't 
 know how to proceed ; that deceased had failed to give him 
 satisfaction, &c.', and fbat'he had no friend to give him advice. 
 Witness said if he wan-ted a friend, he was willing to make a r. 
 effort to bring the matter to some/settlement ; asked him what 
 he wanted a friend to do ; 'said he wanted: some one to go to 
 ^pngg-and ascertain what he was willing to do-; Swan said he 
 J would be sa-tisfiea with a full and unequivocal apology. Having 
 learned this, I went in se'arehof deceased ; went to Dr. Dough- 
 erty's office, and. got him to go in search of him ; found hira, 
 and left Dr. Dougherty with hihi'to explain what I wanted; 
 preceded them to Dr.' Dougherty's office, where he was soot. 
 joined by themi Told' deceased^ 1 wanted to see if the matter 
 could not be amicably settled, and it so, to report to prisoner. 
 Then spofee of the insult offered to prisoner as of the grossest and 
 most degrading character ; deceased replied that he was well 
 aware of it, and was sorry for it ; that he had been advised by 
 A. J. Ogle, of Pa., to box his jawsor spitiin his faee ; regretted 
 prisoner's conduct at bait,- as bethought he had acted in a childis-h 
 manner. Deceased said that on the evening previous he had met 
 Swan ; seeing hrm advance he drew his revolver to meet hira ; 
 informed prisoner that he had received his note, and told him 
 any man who would write such a note was no better than a 
 midnight robber or assassin ; deceased said iSwan wanted to 
 withdraw the challenge, and settle the matter bet >veen themselves 
 amicably:; parted soon after, with no understanding that there 
 was to be a meeting on the meadows ; deceased said he refused 
 to giTe up the challenge ; he then tamed to Dr. Dougherty, and 
 said he would trust the matter in his hands ; he then left th« 
 office, saying that he reserved the right of signing or rejecting 
 such apology as we might agree u-pon j I reserved same right 
 for iSwan ; Dr, D. drafted an apology, when- we proceeded to my 
 office, where we found Swan, and told hira we had brought an 
 apology, which I wished him to examine and modify as he 
 thought fit ; Swan said it was not such ah apology as he woulfi 
 receive; he then drew up an apology himself, which I copied, 
 and handed to Dr. D. to take to deceased ; Dr. D. returned it to 
 me on Tuesday morning unsigned ; I took the piiper and about 
 noon went to the offices of Mr. Van Lear and Mr. iSerames ; 
 showed Mr. Semraes the apology ; he erased a portion, and 
 substituted another; met Dr. D. after (yards ; handed hira the 
 
65 
 
 apology, and toid him i't AVas modified by^Mr. Semmes'.dpsired 
 him to copy it off and get deceased to sign it ; Dr. 15. ent(e|-e(d 
 my office shortlyiafter witii the apology unsigned, saying iSprigg 
 btjected to a certain clause ; prisoner was present; the clause 
 was put in by prisoner, who objected to having it struck out ; 
 Dr. Dougherty then wished me to copy it off as modified by 
 Mr. Semmes ; that he thought he had. influence enough with 
 deceased to get him to sign it Prisoner remarlied in presence 
 of Dr. D. that that apology must be signed, and no other; that 
 unless signed within an hour, he would walk up street, and 
 deceased must defend' himself. Dr. D. took the apology to 
 deceased, and returned with it in less than hour, signed, without 
 any aheration. I handed the apology to prisoner and told hira 
 to remain as quiet as possible, and bring it out in case of neces- 
 sity. Piisoner appeared pleased to deceive the apology. Some 
 one came in while this occurred, and said deceased was out on 
 the corner, when prisoner wer.t out to him, and extended his 
 hand to him He afterwards commenced writing to deceased, 
 saying that after receiving the apology he could explain matters 
 with reference to the offence offered at the assembly, which he 
 Souid not do before. Afterwards Swan came to ray office, 
 accompanied by Judge Perry ; Swan approached me and said in 
 ft whisper, that Judge P. hatl accused him of acting cowardly, 
 I turned to the Judge and asked him wherein the cowardice was 
 manifested. He took the apology and pointed out the clause 
 which had been objected to by deceased, but which iSwan had 
 insisted on retaining. Witness explained this to Judge P. who 
 tben expressed himself satisfied. About a week after, prisoner 
 told me he thought of publishing the apology ; 1 advised him not 
 to do so. While Swan was absent at Hagerstown, was advised 
 by deceased that the apology had been published, with a note 
 appended; deceased was very angry, and used very violent threats 
 towards Swan. On Sunday the 8th of February, saw Swan in 
 front of Cowton's hotel ; afterwards learned of a difficulty in the 
 bar-room, and asked why he had not resented such language on 
 the spot? his reply was, that seeing Sprigg was angry he had 
 turned upon bis heel, and walked into dinner ; next morning 
 received a letter from deceased, asking me for a statement of my 
 knowledge of the occurrence between, himself and Swan, which 
 I gave ; heard of deceased's proposed publication, and fold Swan 
 if the publication was of the character it was said to be, he ought 
 to have it arrested ; told him I understood deceased was going 
 to publish him as a liar, a scoundrel and a cpward; told him ther»i 
 was no aiternative but a fight; never heard Swan indulge in 
 violent language towards deceased ; spoke of his family in the 
 kindest terms, and said if the controversy went on, deceased 
 
S6 
 
 would seal his own fate ;. Swan spoke at this time rath&r incolie- 
 .rently; said that his hands were tied, but would not disclose 
 trhal he meant. 
 
 Cross-examined.— Did not understand apology as an answer 
 to Swan's challenge, or dictated by fear ; Swan said the note Was 
 written in such a hurry that he was not aware of the interpretation 
 likely to be given toit.by thepubHc ; understood from ^'wan that 
 the note was not for the purpose of braving deceased, but to 
 show that he had not remained passive under the insult. 
 
 John W, McNeille called. — Heard a .conversation on the day 
 of Sprigg's death between Sprigg and Kennedy ; Kennedy was 
 trying to pursuade him not tojnake the publication in the paper,; 
 deceased used very profane language, and said he would publish 
 Swan as a liar and coward, and that he would cut his heart out; 
 Kennedy told deceased if he did. Swan would shoot him; 
 deceased said he would'nt shoot a, chicken.; noticed the bearing 
 of Swan daily while he was fn town, he went with his head 
 ^own,iand looked dejected ; would not engage in conversaiicnj 
 had previously appeared differently ; know Swan well ; knew no 
 one more respectable and affable; don't know of any one more 
 quiet and peaceable ; know deceased ; have heard that a person 
 ■was really in danger of coming in contact with him;. have thought 
 that if he met him in a passion would begin to look out for a 
 .tnife. Adjourned. 
 
 3 o'clock, P. M. 
 
 Mrs. Conner called. — Her husband is keeper of the jail at 
 Cumberland ; knows Dr. Moore, (a witness examined on part of 
 the State,) never invited him to go into see Swan or other pris- 
 oner; never saw Dr. Moore in jail ; might have been; a great 
 many persons go in j am confident never saw him go ; have no 
 sister «r daughter about the jail; no one but herself and husliand; 
 never let anybody in Ike private way through which Moore says 
 he passed out ; it is forbidden to all persons. 
 
 Wm. Baird called. — ^^On .night of shooting was in Mason 
 Piice's ofSce; Sv?,an came in about 7 o'clock; said he had been 
 .compelled to do a very serious and disagreeable act; he had 
 killed Will Sprigg; he was much agitated ; his voice and limbs 
 tremulous ; left in a short time, saying he wanted to go and see 
 bis mother.' 
 
 Cross-examined. — Can't say there was anything in his manner 
 exhibiting a want of reason. 
 
 Wm. P. Wood, recalled. — In regard to .difficulties at the ball, 
 deceased had told witness that Swan had interrupted the dance 
 by mispalling the figures ; iipop deceased's speaking to him, 
 telling him he was wrong and out of place, Swan repJied by 
 telling deceased he was biit of place also ; deceased further said 
 
57 
 
 that Swan had interrupleil (he dance twice, by turning a lady he 
 was dancing \fith ; don't know what he meant by saying Sprjgg 
 was out of place; deceased said if he had had Swan out, be 
 would have whipped him. 
 
 Cross-examined.— Deceased bore ihe character of being des» 
 perate. Wept into Unionist office about two weeks after con- 
 versalion, and found a communication from deceased was being 
 -put in type — this was oUithe evening of the night deceased was 
 killed; told Mr. Roman of the intended -publication, and.hfl 
 •went to see about it ; did'nt see deceased again until ho was 
 filled. 
 
 J. Heffelfinger called. — Deceased had boarded with him ,; 
 considered him passionate and disagreeable ; never he,ard of his 
 -character as a peaceable man. [Gave a description of room, 
 position, &c., in which Sprigg was shot.] 
 
 Daniel Wineour called. — Was in the cellar when deceased, 
 and Wood had some words ; heard McDermet say, " Will, I 
 thought that matter had been settled between you and Swan;" 
 Sprigg said, " he had signed some sort of an instrument, writ- 
 ten by Sam Semmes, and if it was to go over again, he would 
 not do it ; that he had only done so to gratify his own friends." 
 Wood said, " it was well you did not meet Swan, for if you had, 
 he would have Wiled you ;" deceased said he had no fears, for 
 he had tried him, and h.e was a d^d coward; didn't believe 
 he would shoot a cat." Deceased asked Wood to step out. 
 Witness said to Wood, "be careful;" had told Sprigg, was 
 sorry the difficulty could not be settled ; Sprigg said, " Swan 
 was a d — d cowardly son of a b — h ; he had been in Hagers- 
 town, publishing lies about him, and he'd cut his heart out ;" 
 witness told Swan of this, and that he had better be careful ; 
 Swan said, " he was not afraid," Never heard Swan speaking 
 harsh of deceased. The day before or on the day of killing, 
 had told Swan of this. Had understood deceased to be a vio- 
 lent man, and that in quarrels he would most likely shoot or 
 rcut, had never seen him carry arms ; Swan is regarded as mild, 
 amiable, gentlemanly and courteous — remarkable for his amia- 
 , ble qualities. Knew him from his infancy. 
 
 Charles Brace called. — Passing out of Devecmon's store, 
 saw persons standing on corner, heard deceased say, "d — n 
 him, if he^on't take care I'll kill him yet;" went into the 
 store and stated the fact ; knew it was deceased bj his voice, 
 though it was night ; also saw his person ; knew Swan for ten 
 years— pever knew anything sjaid agajnst him. 
 
 Charles Howell called. — Sunday before killing,, deceased 
 said Bob STTan was a " d— d liar, and eoward ; an4 he could 
 ;prove him so in any court of justice;" had passed over to 
 
5S 
 
 tfeoeased, from seeing iiim agitated. Swan 'tad jtiSt passed 
 down the street; can't' say -whether deceased sawhim ; nev#f 
 heard any body say "aifiy thing algainst Swan • there lyas a 
 difference of opinion in i;egard to deceased's cTiaractmv 
 
 Jas. W. Stoddard called.— Is mail agept between Baltiinoro 
 and Cumberland ; in passing down, Swaii came into mail car, 
 and gaVe him a copy of the printed apology, . saying "he ha^ 
 a few copies printed for friends, to show how the matter had 
 been settled, and that' ho was glad there was iiii end of' it, for 
 if he ha=d gone to the field, he would rather Sprigg would kill 
 him, than he should kill Sprigg ; Swan spoke of his regard for 
 deceased's family ; said he was on his way to Sagerstown. On 
 return of witness to Cumberland, deceased asked witness if he 
 had seen the' circular ; said he had ;' deceased said he had heard 
 that Captain Davis had said Swan had acted like a 'man — had 
 proved himself such ; that if he said so, he' would slash him. 
 Witness advised deceased to drop it, as He had the better of 
 it ; meaning he had spit in Swanks face, and Swan was satisfied 
 with an apology ; Said he would not ; he would publish him ; 
 witness said he will shoOt you; deceased said he was'rit afraid; 
 he was a d — d coward, and would'nt shoot a chicken ; never 
 saw him again ; was in Baltimore Avhen he was killed. 
 
 Cross-examined'. — Suppose that deceased Was angry at Da,- 
 vis, because he took sides with prisoner. 
 
 Joshua Johnson called. — Knew deceased from boyhood' ;: 
 general character is that of a desperate man ; people generally 
 avoided his company ; if insulted, he would use his knife; knew 
 prisoner from childhood ; his character is very fair ; civil, kind, 
 courteous, and gentle ; after the killing, prisoner's manner was 
 dejected and downcast. 
 
 Cross-examined — Can't say am an enemy of deceased ; had 
 a difficulty with him ; never come back to friendly intercourse; 
 he struck at me with a knife, when I struck at him ■\vith a 
 hammer- Deceased had pretended friendship, but he had 
 found him out, and always avoided his company, for merely 
 contradicting him, he aimed a blow with a knife ; witness struck 
 at Mr. Fell for arresting the blow at deceased ; was a rival of 
 deceased's in business. Adjourned. 
 
 TUESDAY, Septembeji 20. 
 The examination of witnesses on behalf of the defence, was 
 continued. 
 
 Wm. B. Barrel, recalled — On Sunday hight, after the Insult 
 by spitting, met Sprigg at Heffelfinger's hotel," who spoke of a 
 challenge ; did not state terms but said he could not notice a 
 challenge sent in that way ; it had been left for him at the 
 bar ; said he had been out of town, at his father's" all day ; 
 
59 
 
 and the bar-keeper had handed him the letter upon' his return, 
 after hight.' ' ' ' ' • 
 
 Geo. W. Blocker, called — As 'sheriff of Alleghany, had vis- 
 ited Swan in jail; the morning after he was committed; ho 
 seemed somewhat excfted'; he'is "natiirally quick; he talked 
 rational ; spoke with him about shooting Sprigg, and he said 
 h& had' done the act in justificationof his honor ; 'that he w3s 
 sorry for it, but haying done all he could, there was no_ other 
 alternative left. The funeral was expected to pass, and wit- 
 ness asked Swan if he would like, to see- it ; he said he did not 
 know ; iiivited him to do so ; Swan said he would, if not ex- 
 posed to the public gaze ; witness told Irim he could avoid thai, 
 and placed him in a position to do so. Upon seeing the cof- 
 fin and the friends of the deceased, as the funeral passed, 
 Swan's head fell, and he cried, and continued downcast, — 
 Swan's general character was that of a quiet peaceable boy, a 
 gentlemanly and inoifensive man, very polite and kind, and 
 had never heard anything to the contray. Soon after Swan's 
 commitment, had given orders not to admit any person in the 
 jail except having a note from himself, and witness said he 
 had never given a permit to Dr. Moore, (a witness on part of 
 the State.) 
 
 . Cross-examined. — Dr. Moore has a good general character; 
 Would believe him on oath. 
 
 James C. Magraw, called — Late Postmaster at Cumberland, 
 and fornierly head of an Academy in Allegany county. Sprigg 
 bore a bad character; was regarded as a desperado : often 
 heard it remarked that he would never die in his bed. Swan 
 seemed greatly changed after the insult; seemed depressed 
 and undetermined ; previously very cheerful. 
 
 Cross-examined. — Never had any difficulty with Sprigg — he 
 seldom came to the post-office; often sent him word when let- 
 ters were there for him. 
 
 George S. Evans, called — Sprigg bore the character of be- 
 ing abusive, and when excited would cut or shoot. Knew 
 Swan from his childhood ;' he was peaceable, clever, and a 
 general favorite with all. 
 
 Cross-examined. — 'Sprigg was naturally excitable— quick to 
 resent or forgive an inj,ury ; generous, open hearted. Can't 
 say that Sprigg carried arms. 
 
 John F. Fetterman called. — Sprigg's character was bad'; 
 passionate, desperate and irretable. 
 
 John White, called — Justice of the Peace ; resides in Cum- 
 berland. Sprigg was excitable and violent ; never heard any- 
 thing dero.gsrtory 'of Swan's character. 
 
 Michael Triber, called — Sprigg was a violent man ; Swaa 
 
^60 
 
 sociable and peaceable; Swan's appearance and deportment 
 much changed after the insult ; he seemed greatly depressed, 
 and in a deep study as to what to do. 
 
 Wm. K. Newman, called— Sprigg was a quanrefeome, des- 
 perate man; Swan's character good ; never beard any .thing 
 against it; after the insult there was a marked change in 
 Swan's appearance andTmanner, especially on the day of killing. 
 Francis Donnelly, called— Spxigg coming into witness's cel- 
 lar, McDermott. accosted him as a duelist ; Sprigg said no, 
 (Swan) had not pluck enough to kill a cat, or challenge him, 
 and if he should, he would cut his d-d head off; Sprigg's 
 general character was not good. 
 
 James Eurgeson, called— Sprigg was a man of violent tem- 
 per ; never heard anything disrespectful in regard to Swan,; 
 had talked with him after the insult; found his mind disturb- 
 ,ed and unsettled ; offered to sell the store witness was occupy- 
 ing, and said he would take it out in smoking ; his conduct 
 was so remarkable as to cause witness to speak of it ; saw 
 Swan soon after the killing, he was greatly agitated. 
 
 John M. Buchanan, called — Sprigg was of excitable and vio- 
 lent temper; Swan mild, amiable, and courteous; knew him 
 from childhood, and have never heard any thing against him. 
 Norman Bruce, called — Sprigg was of a desperate, quarrel- 
 some disposition ; Swan just the contrary. 
 
 Wm. B. Barrell, re-called — Sprigg was quarrelsome and 
 would use a knife in a quarrel ; Swan peaceable and quiet. 
 
 Andrew E. Kennedy, called — The first knowledge I had of 
 the difficulty, was derived from Sprigg, a short time after he 
 had spit into Swan's face. About an hour after this, was in 
 a sleigh with Mr. Roman, vi'hen Swan jumped into the sleigh, 
 :and had some conversation with Mr. Roman, some parts of 
 which I could not avoid hearing.; from this conversation I in- 
 ferred that Swan had placed :the matter in the hands of Mr. 
 Roman, and so I said to Sprigg a few minutes after, when I 
 stopped at Dr. Dougherty !s office to see him. My reason for 
 telling this to Sprigg was the fact of Sprigg's requesting me 
 to come into the omoe and lock the door, as he (Sprigg) was 
 without arms, and Swan had already been there to seek him.^ 
 lOn Monday, January 24th, Sprigg accompanied me to my 
 office, when he gave me a history of the whole difficulty up to- 
 that time- :Sprigg spoke of the occui'renee at the balltroom, 
 and said that he would not have deemed Swan's conduct as 
 insulting, and would not have taken notice of it, but for the 
 fact that Swan refused to apologise for it to him, but had done 
 80 to the ladies present at the time. From Sprigg's own state- 
 ment I thought hiiP the 6|fending party, and so told him. Sprigg 
 
61 
 
 was at a loss how to act under the oircumstatfcfeSi aid consult^ 
 ed with A. J. Ogle, of ]^enna., Who, Sprigg said, advised him 
 to spit into Swan's face* I told Sprigg that it was fortuiiat© 
 for him that Swan was' not armed at the time, when Spring 
 said that Swan was " too damned a coward to shoOt a chick- 
 en ;" that if he (Swan') had resisted him -he would have "cut^ 
 his damned heart out with a knife" which- he had with him at 
 the time. I declined acting inanybther capaoitythan as ad- 
 Yiser,in consequence of my then unfriendly relations with Swan. 
 
 During this conversation'' Sj)rigg. frequently spoke of Swan 
 as a coward ; and, also, frequently said-th'atf he would have' 
 cut his damned heart out, in case of any resistenee. He, also, 
 often expressed his regret at having spit into Swan's face, and 
 that he had been badly advised. His conduct was very strange' 
 — one moment violently abusing'- Swan, and in the next ex- 
 pressing his deep regret at his own conduct. 
 
 On the evening of that day, about 7 o'clock, I met Swan, 
 who spoke to me for the first time for several months. He said : 
 "Kennedy let us forget whatever unpleasant has occurred be- 
 tween us ; I am in a most horrible condition, and do not know 
 what to do ; Sprigg has spit upon me, and I am entirely with- 
 out friends to act for me." Supposing that he wished me to 
 act as his friend, I at once declined, and spbke of what had 
 passed between Sprigg and myself. Swan then left me and 
 went over to Dr. Scoliay's office. • 
 
 On Tuesday Sprigg had another conversation with me, dur- 
 ing which he was violently excited and made use of the very 
 harshest expressions towards-Swan. -"Either just before dinner, 
 or immediately aftfer, upon the same day, Sprigg came again 
 to see me and intimated that Swan would accept an apology 
 for the insult.' I did not think this could be true, but on 
 Sprigg's assurance that it was, I advised him to give an apol- 
 ogy — no matter how broad and ' thorough it might be. In 
 speaking of the insult, with reference to an apolbgyi I char- 
 acterized the act as" " an uilgeritlemanly one,'-' when- Sprigs 
 jumped up and said that no oneshould^talk to him in that man- 
 ner. I then remarked, "I did not m€an to offend ybu; but 
 if you cannot'take my advice in Such- way. asF choose to give ' 
 it to you, you had better go to some-bne'else-." Spiig^ tbeii ' 
 said, "Oh! I am -making a daamedfool of myself again.'' He 
 was reluctant to give an apology-^^bufeaftep being urged most 
 earnestly by me, ta do so,, he left"' the ' office, saying that he 
 would give it. That night I met Swan, -at Dr. Scoliay's office, 
 when he showed me the apology, and expressed himself ae 
 g;reatly gratified in having the difficulty thus amicably adjiigtdd. 
 
 Ill the conversation had with me no Monday, 26tfl January, 
 
62, 
 
 •Sprigg g^^e an account of the interviews between Swan' and 
 Limself on the previous Satupday and Sunday nights. On 
 S^tui-day night when prisoner called him out of the bar-room 
 of Cowton's hotel, he drew his pistol and -said to prisoner " I 
 am ready for yon in any way ;" that prisoner proposed to go 
 into the slable and talk the matter over, but, on deceased's ob- 
 jecting, they went up-stairs to No. 5. The particulars of this 
 conversation I do not remember, but the impression left upon 
 my mind, by deceased's statement, is, that it was of an ami- 
 cable character. Deceased then spoke of his interview with 
 prisoner on the next Sunday night, after he had received pris- 
 oner's challenge to meet him on Perry's Meadow ; That on 
 nieeting prisoner, he (deceased) instantly drew his revolver 
 and said "Bob, you, are no better than an assassin and you 
 had better change the hour to 6 o'clock in the morning instead 
 of 11 o'clock," Avhen prisoner said " Will, I was just coming 
 to ask you to .lefrme withdraw, that -challenge ; I think the mat- 
 ter can be settled in some other way;" that deceased refused 
 to allow him to withdraw the challenge. His reason, as men- 
 tioned to me, was that he would :not accept a challenge sent 
 in that way ; and that he wanted to show his friends that pris- 
 oi;ier had sent him a challenge of that horrible character. 
 Deceased -then said, that at prisoner's instance they went over 
 to the steps of the Mineral Bank, and there talked the matter 
 over ; that prisoner said he wanted to withdraw his challenge 
 on- account of his intimate friendly relations with Miss Molly 
 Sprigg, , and the .Sprigg family generally ; that when they par- 
 ted, that night it was with no,iyjiderBtanding that they were to 
 meet on the Meadow the next morning. 
 
 ,_0n either Friday or Saturday, (the ,6th and 7th of February,) 
 d^ppased told me thatheihad heard that Swan had published 
 the apology with some, charges appended, and that "if 'it was 
 so^ he would publish Swan as a liar, a coward and a scoundrel. 
 I advised him -not to act in any way till he. had received some 
 definite information inregardto the publication. Onthe next 
 day, (Saturday,) .'deceased told me that he had seen the note 
 appended to the .published, apology, and that Swan was a liar, 
 a jfipward and, a scoundrel, and that he would publish him as 
 such, to the world. On that, /Saturday- night, prisoner came 
 tcfc,roy' office, when I told hini that deceased was much excited- 
 and enraged in consequence of the publication, a.nd asked him 
 what had induced him to make it. . Prisonersaid that the insult 
 wa? public, and the apology ought to have been made- equally 
 80^,. Surmising that he was not satisfied with himself for having 
 accepted iin apology, I rem§,rked to him that I' was afraid that 
 he. had appended the note to his publication of the apology for 
 
68 
 
 the purpose, of renewipg the quarrel, yljen^he, instautly, and , 
 io tjie Very strongest terms, asserted that he ha.d no sucji inten- 
 tioni.'' He was so very earnest in his, denial, that he convinced 
 me that he had not had any such intention. He said that he 
 did not mean to call deceased's courage into question ; that he 
 had >Yritten the note in a hurry and in the printing oflSce; that 
 the only object was to remove the impression existing in the 
 comnjunity that he, prisoner, had apologised to deceased, and 
 not decea,s6d to him. Prisoner then; sat down at my oflSce- 
 table, and wrote a note to .deceased,, which he handed to mo 
 to read, and which I thought, under the circumstances, was 
 too subinissive and rather too truckling. Prisoner thqn wrote 
 anothei:, which he requested, me to convej' to deceased. [The 
 letter is here shewn to witness who reads it to the jury .J I 
 took the letter, but not finding deceased, I put it in the post» 
 office. In a few moments after, I met deceased and told him 
 that the letter was in, the office. Deceased refused to go for 
 it, and denounced prisoner in the most violent terms. I repeated 
 to deceased the contents of the'letter, and all' that had just 
 passed between prisoner and myself ; of his strong assertions 
 that his only intention in making the publioq.tion was to cor- 
 rect the erroneous reports in circulation, and with no idea of 
 denying his bravery. Deceased said that prisoner was a liar; 
 that he understood his motives ; and that he would proclaim 
 him not only a liar, but a coward and scoundrel. 
 
 On the next day (Sunday) while I was at the dinner tabic, 
 prisoner came and took his seat near me, looking very pale 
 e:?:cited. He eat his dinner very rapidly ; got up and came 
 and' asked me to hurry through my meal, that he wanted to 
 see me. In a moment or too, I went out upon the portico of 
 the hotel, when I saw prisoner standing at one end of it, and 
 deceased at the other. I went up to prisoner, who told me 
 that just before going into his dinner he had seen deceased in 
 the bar-room, when he went to the door and said " Will, come 
 here, I want to speq-k to you," and that deceased replied "go 
 to hell, you damned lying, cowardly son of a b~ b; I want 
 nothing to do with you- I advised prisoner to go down street; 
 that I was afraid that there would be a fight ; he said that ho 
 meant to act on the defensive entirely ; to make no attack upon 
 deceased. I then went over to deceased, jind' begged him to 
 gp away. He said that he WQuld not go ; that prisoner wouljd 
 attaclj, I told him that he peed pot fear an attack, and 
 mentioned what prisoner had just said to me. Deceased cursed 
 prisoner violently, and I suppose that prisoner heard him. I 
 again urged deceased to get the letter .which prisoner had 
 written the night before, This ho refused^ to do, but, aJi«r 
 
64 
 
 aome persuafiiou agreed to read it if I wbtild bring it to Him; 
 I went, in company with Mr. Kehiler, for the letter, but found 
 the post-office closed. When I returned to the hotel, deceased 
 and prisoner were still there. I told deceased that I was 
 unable to get the letter, and he replied "never mind, I would 
 not read anything from him." 
 
 On Monday we had a long conversation, in which he reiter- 
 ated his intention of publishing prisoner as a liar, a coward, 
 and a scoundrel; and that he would " degrade hiin in quarters 
 where he would least wish it." He requested me to say so to 
 prisoner ; and to tell him that he was armed. I refused to bear 
 any such message. He said " then I will get some one else 
 to do it." I urged him not to make any such publication as 
 that he intended, but he left me^sayingthat he was determined 
 to do it. That evening I' met prisoner at Dr. Scollay's office. 
 He told me that he had heard that deceased intended to pub- 
 lish him in a very offensive mode, and asked me if I knew 
 anything of such- intentioni I told him that deceased and 
 myself had had a talk about it; ^and then, at prisoner's request, 
 mentioned all that had passed- between deceased and myself. 
 Prisoner then said that if he (deceased) did publish him in such 
 manner, that it" woUld make him desperate, and force him to 
 attack rather than defend. The next morning I told deceased 
 what prisoner had" said ; he laughed at the idea; and reit- 
 erated his charges of cowardice against prisoner. I told him ■ 
 that he had mistaken prisoner's character; that I did not 
 believe- he was a coward. This conversation occurred while 
 walking to my ofiBce. After we arrived at the office, I again ■ 
 most earnestly urged decease not to make an offensive publica- 
 tion, but confine himself to a simple statement of all the'facts;,- 
 that it was not necessary to prefer charges of any kind ; that 
 the facts would vindicate his honor. Deceased, after some 
 time, consented to follow my advice ; and, at his request, I 
 agreed to revise his statement for the hands of the printer. 
 That afternoon I met him on the street ; he told me that he 
 had again determined to make the offensive publication ; that 
 be would make it at all risks. I told him -that I regretted it,, 
 and begged him to go with me" to see Mr. Semmes and advise 
 with him. He refused to do this. I saw deceased again about, 
 I suppose, twenty minutes before his death,- at Mr; Betts' 
 store; but We hiid no conversation. I saw no more of him till 
 after his death ; nor did I ever see his publication till it ap; 
 peared in the- Unionist' of the next morningv Prisoner knew 
 from me that deceased was "armed and al\f ays ready for him, " 
 Deceased having requested me to tell him so. Deceased's coat 
 breast-pockets looked to me as if they had arms within them ;^ 
 
S5 
 
 ttey-,]^??ked^8o when I saw jfc^im'^, JJett> atpxe, r I ,^|^k ^he 
 had an oveccpat on at -that time. When speaking to nie of 
 the fact of Jhtis having gone ipJPerry'sirieadows to meet, Sprigg, 
 prisoner said that if either jraa to h^ve heen killed, he woul4 
 rather have been slain th^ to haye killed deceased j that h^ 
 Tvould luye endeavored to have drawn Sprigg's fire, and would 
 then have discharged his own.arms i^ the air ; and assigned as 
 hj^ reasojn.his attachment tp Ajr. Joseph Sprigg, the father of 
 the deceased, and his regard- for Miss Sprigg, whom he lovecj 
 as, a sister. Prisoner ,denied deceased's statement of th^ii" 
 interviews of , Saturday and Sunday night, ^the 24th and 25th 
 of January,") and particularly that part of it'thatsaid there was 
 to bo no meeri^ng on the next day on.the meadows. , Charles 
 Newman came into.Bett^'s store, and'said that prisoner had 
 killed deceased, I immediately ran Tip steeet anid.met Swan 
 near Mr. Bpall's house, and said, " Great jGrOf^J . 33ob, what i<5 
 this I hear ?" He replied, "Kennedy, go and see the last of 
 poor Will, I have killed hip." 1 next saw prisoner under 
 nrrest, in the SherilT's office. , lie was in cqn;versjation with. Mr. 
 Pe^rre and Air. revecinon'; he spnke in excited. and tremulous 
 tones,, but was subdued. , I never heard prisoner u^e any harsh 
 language of deceased, suve in one instance, when he said that 
 deceased was attempting tn bully bitn. Prisoner always spok« 
 as if he was anxious to settle the difficulty amicably. Deceased 
 said to me, that if Roman had-broUght a challensje, he would 
 not have fought prisoner, but would have fought Roman ; and 
 that the fight wouldhave been with knives. I do not remember 
 whelhcrhe said butcher or bowie knives. 
 
 Cross-examined.— After deceased's knp>vledge of prisoner's 
 publication, I do not know how often they met. My own 
 knowledge extends only to the meeting at Cowton's Hotel on 
 Sunday, lhe-8ih February. I did not entertain the idea that 
 deceased really meant to seek prisoner, and . never supposed 
 that lie would attack him ; and regarded as idle talk his threat 
 to "cat his heart oiit." There was a very decided change in 
 prisoner's manner and deportment. I coidd not say whether 
 hin mipd was right or not. I did not think him responsible. He 
 toid me that he eoidd not hold his head up in the comm«ni'fy ; 
 thit he felt di«graced ; and ihat it seemed to him that when he 
 was Walking the streets, the boys seemed lo be laughing at him 
 and spitting in his face. I do hot think the unlawfulness of the 
 act ever occurred to prisoner.- He never spoke to me about 
 killing deceased; or about the legal (ight and' wrong of an attack. 
 On the day he killed deeeasecj, immediately after dinner, he 
 came to my office in company with Capt. Thomas, ofthe Army, 
 He was disconnected in his topics of conversation. 
 o 
 
66 
 
 By Go*'.' Tbotnas.-^A man's mind may see the difference 
 between the right and vrro;ig of an isct, anuyef his will be too 
 strong to permit him to piu-stie the right. Prisoner is a very 
 inapuhive man. Hif impulses have prompted him Id say and 
 do thihfgs which he i'Miyratds regretted. 
 
 Judge Perry, recalled. — He testified to a letter he had received 
 whilst in Hagerstown, from prisoner, dated Cumberland, Februa- 
 ry 7th, informing him of deceased's being annoyed at his publish- 
 ing the apology, and of deceased's declaration to shoot him. 
 
 Dr. Maegdl, called. — ^Testified'to a letter having been received 
 in his family from prisoner, of the same date, conveying similar 
 information, etc. 
 
 Judge Perry, recalled.— Prisoner showed %vhathesaid wasaa 
 apology ; witness told him his being seen so much in company 
 with deceased's relations, it might lead him and others to believe 
 that he had been over anxious to procure it; had advised Swan 
 to furnish his friends with a cop v of the apologyto enable them \o 
 i:orrect false impresMons; had told him that a man vi-ho Would spit 
 in another's face, though he might apologise for Ft, was not a fit 
 associate; had told htm after hearing the explanation in reference 
 to the laflgsage oflhe apology, that it was all right and proper. 
 
 Ci'oss examined.-^Didn't return to Cuir.berlund until after the 
 kifling ; there vvas no postscript attached .to the copy of the 
 apology Swan showed me. 
 
 Frederick Minky, called.— Saw S'wan on the nigtit of the 
 killing; he 'said he had made up his mind to- kill him ; vi-as 
 bound 16 do it,- felt justified in so doing ; and did kill him : 
 p.risoner sajd he .w^s not excited, was calm, but he looked pale 
 and his voice indicated excitetrient. 
 
 Mr. Cutter, called. — Was at the Iloiel; heard the firing ; saw 
 Nht- man fall ; prisoner said to him, " I've kil'lt'd Will <Sprigg; I 
 <;ame for that purp6se, and am glad of it ;" thought prisoner not 
 in his right tuind ; 'had never sCen him before; advised his arrest. 
 CrosS'-exattjitied — rOpinion as. to, his mind resulted from the 
 circumstances atteivding Ahekiiiing;, sine* hearing of all the cir- 
 ,^umstanccs am of the same opinion; believe ihp killii/g the result 
 ol" excitement, and not the cxcilement .l.he result of the killing. 
 
 ; paniel Dudley, called.— Testified, to prisoner's silling in Rq- 
 'majn's office for an ^.pur anc| ii half pn the day of tie killing 
 .\y lihout: speaking i) \v.or|,-j deceased rtdogmzed as reckless find 
 jiery ; prispne; very ped^^^b!e ;' 5i^ceV>s,e,|i's fault consisted iii a 
 quiiiUess of teinpei-. , - ,, '. ., 
 
 y J ,'P, Eoman, t.ecalied,— Prispner assigned as a reason,, wish; 
 
6?, 
 
 hy deceased^;, wUaess ascertained >t;to be true, Itut, did^nt $ee 
 prisoner in t'lin^e to te^l him before t,he killing; never heard iSprigg 
 eoteitained ,iU W:il) for nie until after his death y they frequ^^tjy 
 cpn versed together; prisoner assigned anticipated publiuatioQ as 
 the cause of his desperate st^te of nijnd. > :. .. ; 
 
 Daniel C. Bruce, called by State. — Saw prisoner at Cp-wton's 
 afier the spilling ; lopk,ed melancholy; deoej^fed. came up; seemed 
 agitated ; caught prisoner by the arms and said " Bob I owe you 
 ten thonsand pardons; I thought you intended to insult me at 
 ihe ball, but from what my friends tell me I am satisfied you did 
 not ;'\not, having heard, oJ the difficulty, J was surprised ; they 
 cro^seid^. the ..street, tb talk the aiaiterover; next saw, deceased 
 again; asked him about the matter, apd he told me about the 
 spitting and apology ; witness said is, i^ possible; deceased rcr. 
 plied it vyas, and that he knew it was a d — d bad act ; witness 
 said, '' Will, I, have often told you that yo-ur bad temper would 
 get you into trouble, and i,f noi careful be your ruin;" deceased 
 said, Bob insulted roe grossly at the balli and said, " Dan, 1 
 know you well enough to believe if ;it had been your case, you 
 would have knocked him down even in the presence of ladies ;" 
 deceased was very pr^ifane and expitable. • 
 
 Cross-examined. — Deceased, after what had previously taken 
 place, unider my knowledge, gave the impression th-at he was net 
 sincere ; can't say what day it was, but it must have been before 
 the 1st qf February. . ■ 
 
 By the Slate. — Gan't say what passed at the conversation 
 across the- street, to lead to ^ oJiange of fc^e] ng and opinion ; 
 dpceasedj seemed jsincere, when he first met prisoner and cordiatUy 
 grasped hint; believed deceased to be a candid man, and wliat 
 be had to say generally came out ; heiwas of <]uick,imgasjB}oned 
 temperamentjitrujhful apd bra'ye.; he would resent in suchmiaH- 
 ner as to suit ihe, insui^., Adjnurneil, - !• i, • 
 
 :;.. ' ,;,,;, Wednesday, SB'PTEMBEa.21.;.' 
 
 ^^The evidence on iheLpart of th^e defence wassonlinued. 
 James Hand, callFd— rOn the 24tb of January, after tea, at 
 Heffeifinger's? hotel, saw Sprigg,3and asked him about the diffi- 
 culiyibetween him and prisoner; he said he was .d=anx:ing with 
 bis sist'iT-,. auriti aad. two):sitrartge' ladies; prisoner, in danctag, 
 turned'on^.Otf tboj latlsi|?s;! deceased to.ki him. ihp was wrong; pris- 
 oner said, -'No Willj;I am all'ri.ght,";an^„tijrneJ another lady ; 
 tlec^eased told him if he mad.e anc^her step ;he.v>'ould knock him 
 down; prisoner then stopped^ after the^ dance, prisoflpr was go- 
 ing around jtheropqi., laughing .f^ud talking. tP ,^he. ladies; de- 
 feased tolcl witness, that prisoner S3id lie could not apologise to 
 jleceased,t;bi»i could jt^o the hdies; said he had given prisoner 
 time to apologise, and was" detertnined to"insu!t him; that ha 
 
68 
 
 had w^lkpd down street, used some insiilting language, jher» 
 spit in his face; said he had understdodprisonerhad armed him- 
 self, a.id was waiting in 'the barber-^hbp below, to see himpasjj 
 80 as to shoot him through the window ; that h^e was'ht afraid 
 of him, for he was too d^d a cow?id to shoot anybody! de- 
 ceased said the report was correct that prisoner had met his sis- 
 Ier, and told her he was in search of her brother WilJ, to kill 
 rirh, as he bad spit in his face. She said if it had beeji any- 
 body but Swan, she would have had him arrested; deceased 
 said prisoner had called on him at one of tfie hotels, and said to 
 him, "Will, I want this matter settled," deceased put his ^arid 
 in his breast pncket and either drew a weapon, or was about to 
 do so, and said "draw;" prisoner threw up both arms and said 
 "Not in that way, I wish it Settled amicably." Witness then 
 aske'l him how the matter stood ? <Sprigg said he had apologis- 
 ed to prisoner, and said; "I am all right; Swan may wipe' the 
 spit out of his fiice the best he can." The next' conversaiinn 
 was between witness and prisoner, on the 4ih of February, the 
 (?ay prisoner carae'in the cars on his way to Hagerslown; saw 
 him 1(1 mail car, when Stoddard said to -him, "show Jim one of 
 those apologies;" prisoner did so; had often spoke of prisonrr 
 in Baltimore and elsewhere as a coward, and wished an apolnay 
 to show- his friends, and correct himself wiih regard to it. Wit- 
 ness told prisoner what deceased had told bitn, nnd that from 
 his story he had said he was a coward; prisoner told him anoth- 
 er story; thiit the matter .Tas settled and be ^\\ as glad of it; that 
 deceased had said .-nany hasd things again'st him, but he forgave 
 Eiira ; that if deceased had met -him when he called hiiij eut, he 
 would have rfH'her had deceased kill- him tharr he s^hould kill de- 
 ceaseJ; that he had eaten at his father's table, slept in his bed, 
 and had great respect for the family; Ifrat b's sister was his friend 
 and confidant; he respected her as a sister, arid how could he 
 do otherwise ^ Spring's story had induced me not to speak to 
 Swan previjus to "this conversation, because I supposed him to- 
 be a coward. Decea'sed was considered very hotheaded and 
 a-uarrelsome; as a man who would, in a quarrel, use anything 
 he got in his hand* He was quick to receive an injiry, ared 
 quick to resent it, and to«»k ofFencs at trifling causes, often b*- 
 ibre be gave himself time to reflect whether he had cause or not. 
 J.P.Roman, recalled— Was in Curaderland at the Assem- 
 bly; next Wednesday night saw Mr. Wood on the corner. Next 
 Wednesday was on way to New York. Prisoner asked me to 
 aet »s his friend, told him I could not^ that a man's own nature 
 ougbt to suggest the remedy; that he didn't want any friends, 
 and sutr^estel to him the case of Ritchie and Pleasatits; told 
 Him he ttwldn't compel Spriggto fight him a duel— that he had 
 
6d 
 
 S|Jlt 
 cod 
 
 It 'in His face a'ffd! (legr^ded tiim, and vrouli( refuse 1q ^g^Bl Miif' 
 naWfRBg his tri'ehd to figiii for him. iSv^an't'^ankeif nie fo'/the 
 
 pMsaher s mend, iri .bringing aboot theseUlemcnt, but tno t 
 iHere could be nb'atoni^m'ept for tliie in.iignity. 
 
 ,, Henry H. Ainsworlh recalled^^HeaTd of the challenge; wen| 
 to the JSlayor's office, ,>^'hoi said I pught to ^rtest ibem; l.o|4 hiin 
 1 couldn't jdo iti unless affidavit were made; saw Sprigg,ispok« 
 to tiin al^flut; the challenge, apd jbat I was going to hjave Ihem 
 both ijaken up; Jie said, "don't, do that, I era, aboiit tpsictlle it;'' 
 said he wouldn'^ have spit ij^ Swan's face, But he wag advised 
 to.jdo;|j|)y a friend; 'f i he ^^ad' it to do over, lie \youIdn't do il; 
 but would kick his d — d a—; said it was a d— d dirty tnck So 
 spit in a man's face; Jiad heard; noihing for a^jay b,r tw;0. De- 
 ceased came dnwn street and said to witness: "I have settled 
 that matter." Some one saw a button hple of his over-coat 
 torn," and asked him if Swan had shptthat. Deceased flu^lied 
 up and said, "No, he is t"" d — d a coward to shoot any thing." 
 Deceased said he had received a kind of challenge, leit for hitn 
 in the Bar-room; spoke of going to Perry's meadows; said he 
 wasn't d — n fool enough fb do that; that Sv.ari might shool hiiu 
 before- lie got on the mBadow; said he? didn't, fight duels that 
 way. if he had seiit a friend to him, he could chdpse hispwa 
 weakens; said he wished he had sent a friend, thai he would like 
 to get hold of. his friend, for he believed his' friend had nibifci to 
 do v^ith it.tiian prisoner. lieceased said he thought the insult at 
 the bair was' an old affair^ Saw him a few everiiriu^s after; wlis 
 in an bysfer-Hbuse, when deceased canae in. A!f., Kline said to 
 him', "My honey, if you'd spit in my face, I'd hiive brought you 
 to the scratch:." Deceased said^ I doh^t khibw whiV ybii would 
 do, but Bob 'Swan is ton d— d a coward to bring a/iy body to 
 the' scratch." This wasaftpr he said the riiatler was settled.— 
 dri.the iSunday before deceased's death, saw hjra in Cowtoii's 
 hotel; was very dngry and' said, ''Gentiiemen, I'prorioUnciB, Bob 
 i^wan to be 'a d^-^d scoundrel, liar, and coward, and I arti ^blnc; 
 to puWlsh him to the world'." S'aw hiin afteirwaids on the s^itie 
 eviehing,, uhen deceased 'us6d th'e same a,b6sivc language '16- 
 \vaif(ts |)ri"soner.' V ; '. "',"■' 
 
 ■ The'deJioSitidn of Hem-|;lG, Wo^^^ 
 
 was then readj detailing cpnye^satipns wiin'dfec'eaisfed; iii Svniiih 
 dtceasfd's abusive laiigdaee''"arid'l'hreal^, as di^taifed bV btlier 
 Witnejsse^, was ^ven, , ^ .,, ' , . 
 
 ' Jamfei Firirfega*!! vpas (hen Called, and was lAtj^rrogafed with 
 ^tfel'^n'cl tt^ a dcStfV^ei'saiibn with deiea^ed'four'ori^vtf; Ve'afif agQ. 
 tliis- v/a«' 5B|Mfe(l't6'by fcbuti^ll fbr th^ State,' and* Ili-e*p6ilit dr- 
 
giictl before the Court. The ars^jiment occupied ^jOnsider^We 
 lime, and the Court adjo;irned before the poihrwas'Vlecided. ^ 
 
 3 o'cLock, 
 
 Court met.T-Mrs, Swan testifiedas to the;state'of mind of the 
 prisoner soon after the killing. Robert came t€>,her ptace of 
 dwelling— entered her apartment with hat and coat off; said • 
 ** Mother, how can you iiye insuchahot room as this;" he 
 seemed much agitated; witness was pre^Sring her grand cTiildren 
 for bed ; the children were saying their prayers ; Roiert said : 
 " Mother, may Ilcneei and pray with iheth ?" Witness replied, 
 *' cerfSitily,iny child ;" he knelf, seemed engaged in prayer, and 
 wept. Upon rising, he caught hold of one ofthe children, Snd 
 said, "Oh, 5'ally, you will stHI love me, let the world say arid 
 do what it may." Robert laid himself down on a sofa, and 
 appeared very unhappy. ' ■ ■ . •; 
 
 The' Court here decided the point raised this naorning as fol- 
 lows : ' ' ' ' ' "' ■ 
 
 •' The admission of this testiraohy, is rendered proper by the 
 wide scope of evidence conceded in this controversy. 
 
 " The Sjtate have allowed the general character of the deceased 
 for peace and ;qiiietness' (o be giyeti in evidence, and both the 
 Slate and the prisoner's counsel, haVe allowed the declarations 
 of the deceasecf and the prisoiier yithout exception, to go to the 
 jury. Much of this testimony goes to show the character of the 
 transactions /between the parties ;,biit 'much also, very much, 
 goes' and. is irilended to show only the characfer of the individ- 
 uals. Strong expressions, bitter epithets, oii the part of "the 
 deceased, not legally cbhnected with atiy action, have been 
 offered in evidence to shew his viridir4i'veness of character. The 
 door being thij-? opened, the Court thiriks that evidence of an 
 old grudge, .continuing in 'the, breast of the" deceasea towards the 
 prisoner, until the death of the fcirraer, may fcr lijce reasons be 
 admiited. An.old grudge stifi subsisting in the, mind, is certainly 
 evidence of present ill- leeling, and illustrates as.rauch as ariy 
 declaration' could do, the general character of the individual for 
 W'^ht of forgiveness and forbearance. But the prisoner's couii- 
 «eTi bel'ore they offer this testimony, must be satisfied that they 
 wjll be able to prove the continuance of this old giudge in the 
 mind of the deceased up to the period of his death Also, that 
 he was injflufnced by it, in his,late>condu^t to the prisoner, and 
 that the prisoner knew that it existed in the bosom of ihe de: 
 ceased at that time. For wilhont' the knowledge of its existence 
 on the part of ihe prisoner at the time of killitig, he cannot pos- 
 sibly r be supjioFcd to, have been affected by it. This testimony 
 has nothing to (foVilh the isssue in this cause, except so far as 
 thegeneral character hasj^o cjo with.U. The Court expect thj^t 
 
71 
 
 Ihc counsel /o^ the prisaaer wjll,nptgo into unnecessary detail, 
 or fiirthe'r thanto shew ^that there had. been a gtudge ; that it 
 continued to exist, and that its existence was kiiown to the 
 prisoner at the lime of the kiilihg/' 
 
 Mr. Priee Safd he Wrtuld not call the witnesses to the sf^nd 
 ftl this i\me, but would wait to he certain of other testimony, Xa 
 carry out the views of the Court. » 
 
 'J'he deft^nce then presented the deposition of A. J. Ogle, in 
 dehal ot the advice alleged by deceased, to have been gi'^erf to 
 Itini.^ • ' , r '-J 
 
 After argument^by counsel, the Court refused to admit it iii 
 evidence, \ ,'' - '; ,_ '" ' '; , : , J 
 
 Mrs. "Anne M, Ndrris, calted. — Testified as to having heard 
 deceased u'tfer threats of violence against prisoner, in the event 
 of catching him wjjh his girl, or ^bouthjg premises. 
 
 ; Archibald Carey, called.— Prisoner came to witness* priming 
 office, abouf the 1st o;l Februaiiyj-, showed a letter of apology; 
 penciled a few jines on ^^ piece of paper, in much haste, and in 
 ^uch a bad hand that witness ,had to^transrribe it ; he askedithat 
 the note be appended at the bottom of the apology ; said hft 
 ■wanted it^ published ; said the jnsult was universally known, and 
 hcrWanted the apology published, as (a,nuftiber of his, friends in 
 the lower par,t f){ Maryland'would neyer hear of it, unlejss he sent 
 them a copy ; witness .advised hjiivto put it in 3 circular form, 
 to be sent through fhe mail ; he ordcrecl, the- printing of two 
 quires — about forty copies ; prisoner was not m"pje that five min- 
 utes in the office; in copying the no.te, witness gave prisoner's 
 ovFn language and meaning, hanaelj prisoner the printed , and 
 manuscript" copies next day; the hand preceding the note was 
 not on the original; manuscript ; it was placed there as, a, custom 
 in' the offire ; prisoner did not see the hand on the printed copies 
 when receivings thein ; no. copy vvas retained in the qffiqe,; wit- 
 ness %yas not certain about prisoner, cautioning him nptto let 
 ihein get out', but seeing that it was an important personal mat- 
 ter, he so instructed the ham's in the, office ; prisoner did'nt 
 examine the printed, copies, and ha« not since said anythin.g 
 about the hand being appended. 
 
 GeoTfff B. M. Price.'F— On the night of the killing Swan canic 
 to his office; said he harl killed Sprigg; seemed mucl^ agitated; 
 looked as though he was ready to cry. Witpess, with others, 
 went to. see the corpse. J)ecea«ed was cpnsic^rpd a desperate 
 and d'ingerous man ; prisoner a very clever fellow. 
 
 Thomas Devecmori.— Was called and asked to narrate certain 
 declarations made to him by Dr. .Monre, who bad formecly been 
 examined, to which the State objected, and after some argument 
 nnd coDsuItatton as' to whether Dr. I)|'Oore.shoul4.be,.r9-ca]led, 
 
^2 
 
 (he having gnhetb Cumjberland, by permission, in consequence 
 of "a death in his family,)' the Court adjoun.ed. 
 
 THURSDAY, Septbmber ^2, 
 
 The evidence on the part of the dclence was continued. 
 
 Thomas Devecmon, re called— About half an hour alter the 
 killing saw the' prisoner at the magistrate's o^ice, he was in a 
 bdck.rooin, was vomiting.. 
 
 A discussion arose at, this point, growing out of intimation 
 froiu counsel for the defence of a design to prove by the vvitaess 
 a stat^naent qjade t» hjro by Dr. Moore, of whai he had heard 
 prisoner say in the jail of Cumberland, in regard to rhe affair, 
 which resulted in an agreement to recall Dr. Moore, (who had 
 been allowed to return home in consequence of a death in his 
 family.^ 
 
 Mrs. Cowton, called — On. the night of the killing, having 
 heard of it, started to go over the Street lo'het brother's (HeBel- 
 finger's) hotel, where it occurred, and met prisoner near his own 
 door; caught him by the arm, and enquired, "My God, Robert, 
 what have you done .'"' to which prisoner replied that he had 
 killed Will Sprigg; asked him to go in the house, but he declin- 
 ed; and then told him he had better go tell his poor mother all 
 about' it; he went off ; was much agitated, and seemed greatly 
 distressed; witness was well acquainted with prisoner. 
 
 Mrs. Norman Bruce, called — Was at the assembly on the 
 night of the 22d January; saw nothing of the difficulty between 
 prisoner and deceased; knew only from what. they had told her, 
 soon after. Deceased said he had been made very angry by 
 prisoner, who had turned his pattnfr in a dance; said he thought 
 prisoner had done so with an intention to insuH hiin. \Vitness 
 told hi'ji she thought different. Deceased said he should expect 
 prisoner to apologise for it, that he would not have noticed 
 such a matter except done by Robert and brie other person in 
 the ball-rbdiri; «aid there Was an old gtudge between prisoner 
 and himself, and therefore believed prisoner meaiit to insult hitti. 
 Swan next spoke of the affair; 6aid there, was a difficulty be- 
 tweep deceased" and hiinself 'hat night. Witness asl^ed prison- 
 er if he in_ean.t to jns^iiU deceased by turning his partner He 
 said he did not. Asked him if. he would go to" deceased and 
 apologise, when he'.s'aid he would hot; that he woultf se6 h'm in 
 Hell before he would do so; Prisoner was much excited, at ihef 
 time. Hesaid the reaton why he would not apologise was that 
 deceased had threatened his life in the presence of per'sehSi in 
 the hall. Said his servant bo,y had tcild" him so. Some clays 
 aftei* the ball — ahd t,hinks aftirr tfie spitting — prisoner came (b_ 
 '.b^ house of withess, w^eti fhe ask^a him what was thei old 
 grudge against Kiib; he knew nothing of if. The everting of the 
 
73 
 
 day he was oiffered tKe indignity, Swan look le<^, with others, at 
 witness' house; he took witness, from ,the pmloK'to the hall to 
 talk about the mailer; asked him why he did not inake the ex- 
 planation required by deceased, arid thus save all this difflculty. 
 He sai« he hiid twice gone to deceased to do'sd, but that he 
 would not hear him. Can't say whether nj)ology was made at 
 this ball or riot. Prisoner took a pistol oiit or his [locket, showed 
 it to witness, and said, " I was caught without this thing once, 
 but [ shall nev-er be again ;" and further reiij;irked, " this pistol 
 will send one or the otfier of us to Hell." This was about 7 or 
 8 o'clock in the evening of the day he was spit upon. Swan 
 was cotistatitty visiting the house of witness pending these 
 difficulties; had been intimate for years; sometimes two Orihree 
 times a day at her house ; generally talked about the matter; was 
 generally under excited feelings'; sometimes ahriost fraritic, which 
 increased towards the final ierminatidti. The day before the 
 killing saw prisoner for the last time beToTc the event ; he thei» 
 came to her house, and commenced talking 6t the matter in a. 
 wild and frenzi.id manner, when witness said, "Robert, I wish 
 yoii would not come to talk about this affair, for you have almost 
 driven me crazy ;" at which prisoner ihrevV lip his hands, fex- 
 cKtiming, " My God, Mi's. Bruce, I came here to avoid the 
 wo.-ld,. and if you drive me out, where shall I.go? I feel as 
 though I can't look a negro in the face, and.a'S iT the fiiiger of 
 scorn was pointed at ine, when upon the street." He was very 
 intimate, and when coming to the house, and finding me' out of 
 the parlor, he would seek me in the kitchen, to talk of the mat,-' 
 ter, and spoke, freely of his affairs and his nttachtnent ; more i.x- 
 cited the day before the killing than ever befo^e seen ; talked sen- 
 sibly, but in a (earful State of excitement ; was liiuch distressed. 
 By defence,- — One week after the first diffipulty, witness was 
 at another of thje, assetphlies, whjen. deceased asked her if she 
 knew anything of Swan, and whether he would be at the ball; 
 told him she . had left Robert at her house, playinsj; ^ guine, of 
 whist with spine Jadies. Deceased said he hoped Robert would 
 Come ; that he had treated Robert badly; was^orry fi.T it, and 
 ashamed of it ; that'he w-ould be sorry if what' he had (Jone to 
 Robert, should be the cause of keeping him away ; said itwas 
 an act of hisii''e he'd regret as long as he lived ; that it would 
 be a lesson^o,hiin, and hoped that it would be to Robert. Asked 
 him what had' induced him to offdr stjch an .insult o Robert, 
 and; whethfe/^he was advised to dp so. Jie spid.Jie had not 
 Seen advised to spit in his face ; that Ogle 'had ad\ised' hi'm to 
 slap him in the face-, said, that in spitting, in his fare, he in- 
 tended ihe gro.ssest insult x)iie man\ coiild of!er afiolher^ so as to 
 force him'io ffghf, and in tlie cveivt of a chall^n^e; he' AVcfuld 
 
hare choice of weapons, wjjuld choose Ii;pives,,and a bloody 
 battle it would be. ' ' * 
 
 7i 
 
 uld 
 
 Cross-examined. — Had hel(l other convprsalions wnh iS'wafi!, 
 M,hich were olthesame character. When visiting wilhess, and 
 taikinf; about the affair, other persons should come in, he wouJd 
 be silent lor some time, and ihen join in other conv.ersaiipns ; 
 talked sensibly. No other person pi-'e'sent during the conversa- 
 tion on the day belore the kilKng ; did'nt try to divert the con- 
 versation ; did'ot hear Swan threaten iSprigg's life in any of 
 these conversations, as remembered. 
 
 Crflss-examioed. — Whilst lalVing with deceased of Ihe ball 
 on the 29th, one week after the bail' at which the difficulty oc- 
 ciirred. Swan came into the hall. ' Witness rrrentioned it to 
 deceased, who vyent promptly up to Swan, put his hands on hi$ 
 shoulders, and asked him to dance opposite him in the next 
 cotillion. Swan said he'd do so ; went and procured a partner, 
 and dancecl accordirig'Iy. Saw deceased the evening before the 
 killing; he hnd eome across from the post riffice ; said noihing 
 about the difficulty Deceased wa'ihever but once at. witness' 
 house, as reinemjbered, and that was before the difficulty. De- 
 ceased knew of the friendly relations between Swan and witness. 
 Swan's general manner of ,cnn^^ersation waS excited ; xathcr 
 boyish sontflimes. , = . 
 
 3y State. — Nothing' to show insanity of mind; thdjlhought 
 never occurred of his being in.sgne. ', 
 
 By defence. — Thinks had heard him talk disconnected on 
 other suhjects ; at last conversation on the subject, he walked ibo 
 floor and wept ; had seen him weep before. 
 
 By Slate, — At tue seconcl hall, two days after the apology, 
 Sivan seemed calm. Sprigg and Swan seeijiingly acted upon 
 friendly terius. Thinks Swan came to this ball about 11 o'clock, 
 and remained until it was ended. ' They conversed Iriendly in 
 the dance; but can't say they Conversed otherwise. No recrl- 
 leclion nf seeing them together after fhe ball. 
 
 Arthur J'lhnstort, recalled, and cross-examined by the Stale,. 
 Had read the publications by Sprigg . after , the killing; never 
 saw it before; denied having heard and seen certain i.ransacMons 
 to which Sprigg in the publication alleged he was witness ; had 
 no recollection of conversing with Colonel McKaig, or of saying 
 to him that Sprigg's publication was all Iriie. 
 
 By defence. — Had'nt denied tlie truthfulness of the publica- 
 tion because he had not seen it yntil after Sprigg was deid. 
 
 By Stale.-r^Din'tihink ever told Willison that Sprigg drew 
 ; pistol ; could not say so because did not see him draw a pistol; 
 only saw him, ptit his hand in his breast. ' 
 
 JTamcs Finnegan, was again called to the stand ; whsn, Mr. 
 
Pcjc^ijftUmatingTthftt^i^, wail noyr (Jesigned t^o -elicit <m4««^i!e of 
 ?^ grudge;" o4, the pai*t of Sprigg of years ^standing. , , '^," 
 
 Mr." May objected, and pending argument thereon, :J^ 
 Court at 1 o'clock adjournfid. 
 
 The Cfturt, again met at 3 o'cloct, After further, argunjent 
 on the above pOint^" the Court sustained ihe objection, 'assigii; 
 ing siroilar reasons ,tQ those given when this, same witness was 
 interrupted. / i , 
 
 Denton B'^'o^R recalled. — Saw prisoner at the magistrate's 
 sodii after his arrest on the night of the killing; ho was great- 
 ly excited; remarked to him I had thought the a,ffaii: ;8e,ttled. 
 Prisoner replied that it. had bepn, but Sprigg would nQt 
 let him alone; he was sick, and vomited. Dr. Scollcy said 
 somathing to prisoner which witness could not hear, prisoner 
 said Tie'supposed he'd have to go to jail, and asked, the, doc- 
 tor to get him a bottle of brandy and a copy of the .]?ickwick 
 Papers, as it wpuld be very dull there. 
 
 By State — Knew Dr. Moore; never heard anything against 
 him, except that he drinks; would' have no hesitation in be- 
 lieving him oh his oath. 
 
 The general character of Spriggwas that of a hot-headed 
 man, easily excited and when so, violent; never heard of his 
 being a dangerous man; hevejr hoard tjs character for veraci'r 
 ty' questioned; ho was ready to forgive'an injury upon an, apol- 
 ogy; knew him for twenty years. Nev^rgaw him carry arms. 
 Didn't think prisoner deprived of reason, but.neyer saw a man 
 more excited. Thinks there are one or two other persons in 
 Allegany as quarrelsome as deceased. Had heard persons 
 say deceased was generous and kind-hearted. _ 
 
 Daniel B. Cramer called — Was in t.ho' billi3'i'4 room when 
 prisoner was playing a, game, and deceased came in|, and stood 
 steadily looking at the game, with his hands in his trowsers 
 pockets; prisoner seemed engaged; can't say whether decoa'e- 
 cd was gazing specially at prisoner; deceased had visitedj the 
 room only about six. or seven times during the month witness 
 had the, room previous to the killing; never saw deceased strike 
 a ball. Had spoke to WilTison al^buf th,e matter of his visits, 
 and corrected his first impressions; thinks hp had seen deceas- 
 ed two of three times in the room when prisoner was there, 
 after' the" spitting; deceased's manner in the billiard room look- 
 ied like bullying prisoner; offered Swan a glass pf brandy as 
 he paisifed'oUt of the room, but he declined it; prisoner camo 
 back, a short time after — lopened the door and looked in, 
 and passed off: witness heard report of a gun, s^nd remarked 
 that either Sprrgg or <Swan were shot; went over to see about 
 it. when Wrabher said. '^1 haVe killed Bill Snrigg, and if there 
 
Y6 
 
 kte" siSy of his friends who want to^feseriit it, I am ready fo de- 
 fend myself;" prisoner said he ■\ras cool, l)ut seemesd grieatly 
 excited; he looked wild— pale in the face— red spbt^ oil' his 
 cheeks; took. him out of the hotel; had expected a fight in the 
 billiard room; didn't .Remember telling counsbl* (Mr, Price) 
 certain things. ' 
 
 John Anderson recalled— Had seen deceased between the 
 periods of the insult and the death, and took a pistol out of 
 deceased'ls pocket about three or four days after the spitting. 
 
 Mr. Price said the defence were nearly through with its tes- 
 timony; that there' was anot'her aspect of the case which re- 
 qiiirdd the examination of medical gentlemen, which would be 
 commenced to-morrow. 
 
 ■. MlbAY, SeptembEK 23. 
 
 .The Court met and proceeded with the examination of wit- 
 nesses on the part of the defence. ; 
 
 Arthur Cowtan, called— Lives in Cumberland ; prisoner 
 boarded at my house ; heard of the shooting ; prisoner soon 
 thereafter came over with a gUn in his hand, and said "I have 
 shot Will Spriggj and I want you to bear witness to it," and 
 passed out. Witness remarked at the time that he thought 
 prisoner was crazy ; nothing unusual in his voice ; his face was 
 very white. Deceased was irritable iii temper, violent in a 
 quarrel, easy to take offence, rather dangerous when in a quar- 
 rel, would use any thing he could get hold' of in a quarrel. 
 
 Cross-examined— When generally under pressure of high 
 temper, looked pale and changed in the appearance of the 
 eyes; thought his reniark singular ; was uiider unnatural ex- 
 citement. Deceased bore the character of being generous, 
 kind hearted, quick to resent an insult and to forgive. 
 
 Andrew E. Kennedy recalled. —When I saw prisoner in the 
 sheriff 's office, after his arrest, he was very much excited; he 
 spoke in very tremulous tones; when it was suggested to him 
 that he would haVe to go to jail, he seemed utterly prostrated; 
 so much so that ho vomited. The idea that he had committed 
 ail act for which he was legally responsible, s6emed to occur 
 to him for the first time. ' I never thought that he had ever 
 before conteinplatcd the legal rfght or wrong of killing dec'd. 
 Prisoner, during the whole difficulty, seemed tp suffer intens.e- 
 ly; and from this fact, and the 'others which came under my 
 cognizance,' I did not consider him responsible for any acts 
 'jommittedVeyefa'the killing of deceased. 
 
 CVoss examined,— I never approved of the acceptance of 
 ihe a;pology by prisoner, and so told deceased, but never said 
 ii'o to prispiier. There were some peculiar circumstances siir- 
 voiinditig' this particular case that mightj had I kiioVfe of them 
 
before, have induced me to modify my opinion that, ?o dcera- 
 dtii^ ap insTilt as spitting in the face of a ipari could only 'be 
 atoned' foif by a fight. i 
 
 Dr. Scollay recalled, find testified that he was a practising 
 physician, and has beeii since 1848 ; has ^ot ™ado medical 
 jurisprudence a particular branch of study ; was in the,mji- 
 gistrate^' office after prisoner's arrest^ and shortly after he 
 had an attack of v.onijting; continued thought upon any One 
 disagreeable subject may afi"ect ■.he mind— may make a man 
 neglectful of his diities to society, and in a great measiite^ re- 
 gardless of hiB other' external relations. I'here are ciases of 
 monomania, which are produced by some disagreeable subject 
 continually preying upon the mind- l*'rom the facts arid cir- 
 cumstances to which witness testified, and which came under 
 his knowledge, his opinion of the mental condition of prisoner 
 at the time of the occurrence, is that he was morally and in- 
 tellectually incompetent to form a correct judgment in regard 
 to the act. The expression of his eye after the killing, and 
 his manner, induced me to mentally exclaim, "my God, is 
 Bob crazy !" Powerful action on the brain wilt Often produce 
 vomiting. There have beeii cases of delirium tremens in which 
 the nervous system is deranged, where sickness of the stpm- 
 ach is an attendant symptom. Vomiting will relieve the. brain 
 when derangement has been produced by strong, nervous ex- 
 citement. Vomiting is a symptomatic attendant of derange- 
 ment of the nervous system, of which the brain, is the centre. 
 Fear, anger, or any high nervous excitement may produce 
 vomiting in a man whose mind is perfectly sound. Prisoner 
 would often come to my office, sitting for hours with his head 
 down and whittling; sometimes talking incoherently to him- 
 self. 'I did not consider hini exactly a proper person to judge 
 as to what was necessary for the protection of his honor. I 
 have said that prisonei* was acting very fciolishly m this mat- 
 ter. Think at that ^tim.e he was not capable of deciding in his 
 own mind whether his act was right or wrong, but think be 
 was under the impression that he was right. At the, time he 
 committed the act, do not think that he was capable of deci- 
 ding whether he was doing an act that was right or wrong. 
 His expressions tha-t night, after the occurrence, led me to be- 
 lieve that he was sorry he was compelled to commit the act. 
 Think that he was incompetent, at the time of killing, to judge 
 of the legal or moral wrong he was committing. 
 
 Dr. Macgill testified that any one thing continually acting 
 on the mindi8a,pt to dethrone reason, and liable to mate the 
 individual reg3,rdless of other Qutward considerations. Ho 
 then went on to cite numerous eases in illustration of his po- 
 
18 
 
 eltion. He had heard all the teatinjonj with regard to pris- 
 oner's condition of mind, previous and subsequent rto the kil- 
 ling,- and Is of the opinion that he was Iqiboring under a species 
 of jBoral mania which totally unfitted him to judge as:tothe 
 right or wrong of his action at the time he committed the 
 deed. . ^ 
 
 \ Major Archer was in command of the company in Mexico, 
 of which prisoner was lieutenant, and had, an, opportunity of 
 studying his character. Ilia character was that of ' a brave, 
 impvilsiye, generous young man, and not quarrelsome. Among 
 men .who conform to the coder of honor, it. has been my opinion 
 that a mere apology for the insult of spitting in the face was 
 not considered sufficients Swan Was in ,the battles of Con- 
 treras, Cherubusco, Molina del Rey and Chepukepec- . : , 
 
 The testimony, of the defence was here closed, counsel re- 
 serving the right of introducing rebutting testimony. 
 
 The State then proceeded with rebutting testimony, calling 
 
 Samuel M. Semmes, who testified that about the 27th Jan- 
 uary, 1852, Dr. Scollay called at his office and showed a letter 
 of apology, dated, the day previous. It was drafted bypris- 
 9n^r for the purpose of procuring. Sprigg's signature, but he 
 had' refused to sign it. Dr! Scollay said he had taken up 
 Swan's case from motives of compassion, and had engaged in 
 a mission of peace ; that Swan for some days had been pass- 
 ing- from one person to another, could find no friends, and he 
 had taken hold of the, matter to bring it to an end. Witness 
 thereupon took hold of the matter under ^similar motives, to 
 settle the quarrel between them ; witness read th^ letter and 
 said he did not think, it was suited to the occasion ; did'nt 
 think it was such a, letter as Swan ought to receive.; .could'nt 
 see any reas,on why Sprigg should refuse to sign it ; did not 
 regard it sufficiently strong to sa.tisfy prisoner. ; Dr. Scollay 
 had said the first paragraph prisoner had insisted on inserting, 
 and to that very paragraph Sprigg had objected, The para- 
 graph alluded to was as follows : 
 
 "Having conceived myself insulted by you, which I now 
 .say, upon information which came to my ears after the insult 
 wag^ffered by me, I am fully confident was not intended as 
 an insult by you, I, in return, offered you the.grpsa , insult, for 
 which Xhave since felt the deepest regfet, it, being ngt only, a 
 gross outrage to you, for which no .suitable apology, can be 
 made, but an act unworthy of myself, as a gentleman." , 
 
 Witness said it flashed uponjiis mind, upon seeing thcstatc- 
 ment, t^t dece;a.sed^ ought to bo, sfitisfied, as prisoner had" fa- 
 vored itfi and ( £^t oja.ce concluded it should stand ;,^.4-t>''' ^"hse- 
 quSnt period, and before I was aware that deceased had sfgn- 
 
79 
 
 ed tfie apology, I met him in the street ; told him what Lad 
 transpired, and thinking some explanation necessary to ^et 
 him to sign it, told him that instead of refusing, he ought Jo 
 bo glad to do ao, to secure the admission that wlien he offered 
 the insult he did it under provocation. 
 
 Witness expressed himself io the strongest terms as to the 
 character of the insult, as being one which gentleman could 
 not fettle by mere apology, and that he would be justified in 
 the eyes of men of honor in giving his hand and making any 
 atonement for what he.had done, even if it were to allow pris- 
 oner to spit in his face ; that such an offence was never heard 
 of, and no rule in the code of honor could settle it. Whilst 
 talking I thought a tear came to deceased's eye j he then said 
 to m6, "Mr. Semmes, I have signed the apology you havo 
 drafted." Witness took him by the hand arid expressed his 
 great gratification to hear it. Heard no more of this matter 
 between these two young men until the 8th or 9th of Februa- 
 ry, when Sprigg called his attention to Swan's circular ; he 
 seemed much excited upon i-eading^the note appended to it, in 
 the following words : . "The above letter of apology was writ- 
 ten in answer to a written invitation from Robert Swan to 
 meet him on Charles Perry's meadows, armed as each of the 
 parties might think proper, without friends on- either side, the 
 survivor to take care of the slain." The note conveying the 
 idea that deceased had 'sighed it from fear, witness expressed 
 great surprise and indignation that such a note should have 
 been put but, and told hiin it was inconsistent with the terms 
 of settlement ; that Swan wa^ not authorised to publish other 
 than the simple apology. Told Sprigg he was sure Swan had 
 been Ted to do so from the advice of some indiscreet friend ; 
 that I thought him a man of too m;uch honor to publish such 
 a circular. Sprigg said, "I think so too, and that I know 
 who the d— d scoundrel is." He was much excited, and I used 
 words of peace, insisting that he should not suffer passion to 
 lead him astray, but to place the matter in the hands' of some 
 discreet friend. ".He spoke about making a publication, and 
 asked nao to give him a letter. . '■ ■ 
 
 ' I wanted to know whether it was not possible to settle it by 
 cxpranatiori. ' Sprigg' said Swan had called to explain, but he 
 had repelled him, and denounced him as 'a liar and a coward. 
 The morning before the publication, Swan came into my office,; 
 and \^ithout saying, "how do you do?" said, "Mr. Semmes, 
 I am A fraid.I shall be.drive|i to extremities yet." Without 
 waiting to hear another word, I pointed him to be seiited, afad 
 called iiis attention to, the circular or postscnpt, and expressed 
 great surprise at his publishing it; told him whether it wit's 
 
80 
 
 true or false, ;wjbe.thcr,3p.rigg-gaye the ajjology throagh foi^r or, 
 ijpt, ,the circular would , do him vnorfi injury among noiMJxable. 
 meu thp.'h jt would Sprigg ^ that the n^te D?ii'de the, whole a,f- 
 fair a puerile matter. Swan replied, " It strikes : me ^n that 
 light now, but 1 never so regarded it before." He said he 
 ditl^ not attribute it, to Sprigg's fears, but merely to let his 
 friends know he had not r,e?ted quietly under the insult. Ho. 
 then left caljiij and collected, to seek a friendly jntervjew with. 
 Sprigg. The- morning after the sighing of the. apology, Swan 
 came to my office and remained there two hours. He express- 
 ed himself highly gratified at the amicable settlement, an.d 
 seemed as though a load had been, taken off his mipd. 'He 
 spoke of his previous anguish, aii£i,a}dhe had^felt.ililje'a per- 
 son cast upon ;the waters, floating ,9,boP-' as chance might carry 
 him; he had sought a fight^friends had declined aiding, and 
 was deeply distressed up tQ the time ;of apology ; that he 
 could'nt see how ,,Sprigg x;ouId sign.it; rather than do so, un- 
 der the circumstances, he would have descended to his grave 
 alive. He talked in a more reasonable manner than I had 
 ever heard him before, about the present and the future ; I told, 
 him he was at liberty to publish the apology, but advised-him 
 not to do so, as he could show thp writteji one. tp any frjend 
 who wished to see it. , From Sprigg's character and temper, I 
 advised him, to avoid him, but to treat him courteously. I did 
 not think. the^- suitable companions. In telling Swan that ho 
 had dishonored himself by the publication of the note, he re- 
 marked, "Mr. Semmes, you would, be surprised to know who 
 advised me to dp it." , - 
 
 Cross-examined. — Swan.'s remai'iks throughout never mani- 
 fested sj, hostile feeling toward Sprigg, but impressed me that 
 he was under a sense of what was due me in terminating an 
 Ugly quarrel. It is due tpjustice to explain my letter to Srigg. 
 I am going home, and do not want that letter, which was pub- 
 lished with his card, to Be misunderstood after Jam gone. I 
 believe that letter has, among honorable, men, done more to 
 prejudice Swan'^s case than any thing else. Had 1 known that 
 Sprigg had said one word inconsistent w'it;h the apology, as has 
 beentjesitjfied here, I never woul.d have given him such a letter, 
 but .would ha,ve considered him totally unworthy to have re- 
 ceived any letter at, my hands, and shoujd have advised Swan 
 to tear up the apology as though it never had been given, to 
 treat him as a blackguard and a m£^n out of the pale of honor- 
 able men, and tp have taken no further notice of him. I should 
 not have coixdeUjn^fi Svan for what he did. As to deceased's 
 character, he was quick apd violent, ^apd covetous of that prow- 
 ess which gives men eclat froia conquest in fighting, Adj'd. 
 
61 
 
 9!he Cottrt metk 
 
 Rev. Mr. Seiss, called.— Day after the killiiig was sent for 
 fcy Swan ; went to see him at jail ; he seemed under some «!■» 
 citeraient ; nothing remarkable about his mind ; Dr. ScolleT and 
 Mr. Kennedy had just left him ; asked him if he had any 
 hesitation in conversing about his difficulties ; he said he had 
 none ; appeared conscious of the nature of the act ; 'said he 
 did'nt think he could realize it as fully as he ought ; he ex' 
 hibited a paper containing Sprigg's publications, and com- 
 mented thereon ; said he knew I would not justify him from 
 the nature of the principles I preached. Don't know that he 
 spoke particularly of the motives, but said he was placed in & 
 trying position, and knew not as a man of the world how h« 
 could else have got rid of it ; said various things in the publica- 
 tion of deceased Were falsehoods ; that he knew Sprigg to be s 
 mean fellow from previous occurrences ; made an allusion to 
 Sprigg's conduct in regard to his late brother, John Swaa, in 
 a. political contest. 
 
 , Cross-examined. — Manifested no bitterness of feeling to- 
 wards deceased ; gave as reason for sending for me he wanted 
 a copy of a sermon I preached on Sunday ; the sermon was on 
 the subject of forgiveness 5 gave him a copy of the sermon. 
 Witness said he held it as unfair, under the circumstances, (his 
 being a minister) to compel him tp testify in the matter* 
 
 By State. — Did not consider the conversation as confiden- 
 tial; but as his ministerial character went with him everywhere, 
 witness thought prisoner likely to talk with him more freely 
 than other persons, and it would be unfair to the prisoner to 
 extract it from him ; had looked into the books and taken advice 
 as to his right in assuming a position ; had learned there was 
 no law to sustain him— no special privileges recognised or 
 allowed. 
 
 J. H. Seymour, recalled. — Had transacted business with 
 Swan about the 9th or 10th of February ; he acted as usual ; 
 he became excited when talking of the difficulty with Sprigg ; 
 was frequently in my store ; when talking about the matter, 
 Wonld walk the floor whittling a stick ; thinks he was mortified 
 at what had occurred, and didn't know how to get rid of it. 
 Knew deceased for about three years ; he was rather violent 
 when excited ; never heard him spoken of as a desperado ; 
 Qever heard his character for truth called in question. 
 
 By defence. — Never heard Swan spoken of as being quiiixel- 
 some ; but as courteous and gentlemanly. 
 
 Alpheii^ Bell, called.— 'Knew deceased for twenty years, and 
 for five or six years intimately ; he was hasty ; would resaafc 
 vo. iasolt on the spot ; of a fbrgiving disposition ; not a dee^ 
 
perado by any means ; bore a good character for truthfulness. 
 
 By d©fenee.— Deceased was in the employ of witness as a 
 ooach agent; didn't know that he assumed a, better behavior 
 :!7hen witness was about than when he was absent ; heard no 
 complaints about him, except what grew out of his rivalry in 
 business; he was industrious, and attentive to business ; never 
 had a better agent; claims no relationship. 
 
 Dr. Howard Kennedy, called. — Knew deceased for eight or 
 nine years ; never intimately ; he was agent for a business in 
 which witness was interested ; never heard of him as a despe- 
 rado, or his character for veracity doubted. 
 
 By defence —Never heard him speak an unkind word of 
 Swan as a gentleman. 
 
 David Callan, recalled. — Sprigg was regarded as a respect- 
 able man ; knew him about eight or tep years ; he would strike 
 quick. 
 
 Pending further interrogations and answers, a debate arose, 
 growing out of an effort to ascertain whether witness spoke 
 from personal knowledge or from local or general knowledge, 
 upon the conclusion of which the Court adjourned. 
 
 SATURDAY, September 24. 
 
 The Court met. The issue pending at adjournment, was 
 considered. 
 
 To the question put by prisoner's counsel, to David Callan,- 
 viz: " Do you know of any other quarrel ?" and objected to by 
 the State, Judge Tyson, in effect, decided that as the witness 
 had not rested satisfied with testifying generally to the good 
 character of the deceased for peace and quietness, but had 
 further declared that he had never heard of his having had a 
 quarrel, and as he had further testified, in answer to a general 
 question, " that he remembered one quarrel in which the de- 
 ceased had been engaged," he had enlarged the issue beyond 
 that of mere general character, and that to such issue an en- 
 quiry into the mere fact of the past existence of other quarrels 
 between the deceased and others was not irrelavent and might 
 undoubtedly be made in cross-examination. 
 
 Mr. Callan was then again called to the stand, deceased's 
 gerieral character was that of a kind-hearted man ; quiet, im- 
 pulsive, generous ; had heard more against him in Court, than 
 ^ver before ; had lived in and about Cumberland for five or six 
 years, as clerk in a store and bar- keeper; had never been before 
 a magistrate or a Court before ; deceased had come into bar- 
 room the morning of the shooting, and after starting the 
 66 aches, laid his over-coat on a table, and witness h,ung.xt-up, 
 (yver a place where he slept, and thinks it remained there until 
 taken icvm by Mr. Willison on next morning; knew of no arms 
 
Missing Page 
 
84 
 
 ; By defenoe.—If J had known of any friendly approachefl by 
 prisoner, should have attempted an adjustment. 
 
 By State. — Believfed deceased penitent and anxious to relieve 
 prisoner ; deceased felt he'd done wrong, and said he had given 
 the apology cheerfully to relieve prisoner. 
 
 George M. Schroyer, called. — Knew deceased from boyhood; 
 he was inpetuous ; quick to resent, ready to forgive ; not given 
 to bloodshed ; never heard his veracity questioned. 
 
 By defence. — Deceased was very sensitive ; never heard of 
 his resenting an imaginary insult. 
 
 Andrew Green called. — Knew deceased ; never coiisidered 
 him a desperate man ; he was impetuous ; ready to resent an 
 itofeult, and ready to make up ; never heard of his disposition 
 to shed blood, nor of his being quarrelsome ; he. bore a good 
 character as to truth ; saw prisoner about the time of the pub- 
 lication of the apology, with the note appended ; he shqwed me 
 a, copy across the dinner table, about the middle of the weet 
 before the shooting; asked him if Sprigg'had signed it with 
 thfe note attached, and he said he did ; afterwards saw them 
 pass each other on the street, but heard nothing said by themi; 
 nig'ht of the shooting, was in at Cowton's Hotel, when Swan 
 came in and said, " I want it distinctly understood that I have 
 killed Will Sprigg, and want you all to bear testimony;" didn't 
 appear to be crazy; looked as usual ; this was about twentj' 
 minutes after seven o'clock ; the printed circular was not given 
 confidentially ; had remarked, when Swan said Sprigg had 
 signed it with the note appended, that it was very strange. 
 Had never seen arms about deceased. 
 
 Cross-examined. — Can't say. that the i establishment I was 
 interested ih furnished coaches for deceased's stables ; lives in 
 Baltimore now. 
 
 A. B, Willison called — For three or four years associated 
 "with deceased in his business; never heard of his being a ,dan-» 
 gerous man, or his truthfulness doubted; after his death, on. 
 5ext morning, in searching for papers of the business, took a 
 quantity from the breast pocket of his over-coat, found hang- 
 ing in the hotel, and in various drawers in his chamber and 
 in the office; never came across any weapons, pistols, &c. It 
 ba4 been supposed his effort to get out the back door, when 
 prisoner came upon him, was to get arms from the office, but. 
 he had none there. Never heard of his carrying arms, except 
 ■wh^D he once went to aid in arresting some slaves runaway 
 from Virginia; ^here was little difference in the size of prMon.^ 
 er and deceased ; thelatter had a crippled foot ; an Sunday 
 saw deceased and prisoner near Oo.wton's door, apart; decbasn 
 •d narrated the affair; said prisoneir had said he wasnot phys^ 
 
86 
 
 ically strolig enough to fight him, but he intended to challenge 
 him, and not receiving it, he had spit in his face, and then 
 went down the street and armed himself, having heard that 
 prisoner was armed; that prisoner came afterwards to the ho- 
 tel,. called to him to come out, when deceased said, "I'm ready 
 for you. Bob," and prisoner said, "don't shoot, I'm come to 
 have a talk about the matter;" said prisoner wished him to go 
 to the stable, but refused; went up stairs; had no intention of 
 meeting prisoner, for the reason that he had spit in his face, 
 and was sorry for it. Prisoner asked if he apologised what 
 course he would pursue, and deceased told him he would do 
 any thing an honorable man could do; that when they parted- 
 he understood it was to be left with friends to settle, Sunday 
 evening deceased got a note from prisoner; they met after 
 supper and deceased told him of it; and that prisoner said he 
 had come to withdraw it; they crossed the street and convers- 
 ed till about 11 o'clock at night. On Tuesday the draft of 
 an apology was brought, which Sprigg refused to sign, because- 
 he had heard prisoner had written it; another was brought;, 
 naderstood to have been written by Mr Semmes, which he 
 signed, and appeared glad to do so. Sprigg met prisoner af- 
 terwards at a second ball, and treated him. kindly; deceased 
 said prisoner had published the apology, as he had a right to.. 
 do, but that he had appended a note which he could not stand; 
 spoke of his intention to prepare a publication in response,- 
 denouncing prisoner as a coward and a liar, and that he would 
 have no more to do with him, as he had acted so cowardly; 
 that he laid aside his arms after the apology, considering the 
 matter adjusted.- Deceased had tears in his eyes when re- 
 hearsing the matter. Knew Dr. Moore ; bore a good charac- 
 ter for truth and morals. 
 
 Wm. Neal called.— Knew deceased for about twelve years;. 
 he was courageous, quiet, not a desperado ; never heard hia. 
 veracity questioned ; not a malicious man. 
 
 Oroas'examined. — Sprigg was quicker to take offence than 
 men generally ; no reputation as a quarrelsome man ; he'd, use 
 any th-ing in a fight he could get hold on. On day of the 
 shooting, was in the house where prisoner took his meals ; he 
 seejfted greatly distressed ; he invited me to dine with him; told 
 him I hoarded in the house ; he asked me to take a seat beside.- 
 hiva ; did so ; I made some remark to him at dinner, but hie 
 never answered it, or spoke at all. 
 
 By State.— Didn't think from what he had seen of Swam, 
 thjat he was insane ; had heard of the difficulty, and thought it 
 was Oitscapying hia mind. 
 
 GflBQ!). Anderson tecalled.— 'Knew deceased; he was hightem- 
 
pered ; would promptly resent an insult ; didn't think him a 
 dangerous man. Knew Dr. Moore ; never heard any thing 
 against him as a man of truth ; would believe him on his oath. 
 
 Cross-examined. — Sprigg was quickj deceased rather stouter, 
 more compact than the prisoner. 
 
 Charles A. Mudge called. — Was associated in the stage 
 office with deceased ; never heard of his being a dangerous man; 
 he was of quick temper ; never heard his veracity doubted ; 
 never heard of his carrying arms until the day of the spitting 
 in prisoner's face ; Dr. Dougherty asked me if I had pistols ; 
 showed him my single barrel pistols ; went to his office ; saw 
 deceased, who said he heard prisoner was armed for him^ with 
 the intention to shoot him ; deceased said he would not venture 
 his life with single barrel pistols, and wanted a revolver ; de- 
 ceased .weighed one hundred and thirty-eight pounds; saw 
 deceased the morning after, and he said the matter had been 
 settled, and could'nt talk about it ; had been shown the letters 
 deceased published, which he said he intended to vindicate 
 himself against Swan's note ; never heard him abuse prisoner. 
 
 James Evans called. — Knew deceased ; was a good, clever 
 fellow, generous, spirited; would promptly resent an insult,' 
 but not considered dangerous ; knew Dr. Moore ; never heard 
 his veracity questioned ; an honorable, high-minded man. 
 : Cross-examined.— Deceased was quick to resent; use any 
 thing to defend himself. 
 
 Wm. 0. Sprigg, of Michael, called. — Was at the ball on the 
 22d January, as a chief manager ; when about taking his wife 
 home. Swan came out and told her what had happened during 
 the ball; she asked him if he had apologized; he said he 
 thought he had;. she said probably Will might not have heard 
 you ; you'd better go and see him again ; prisoner said he could 
 ijot, for fear Will would strike him ; witness was afterwards in 
 the refreshment room, and saw Will and Dr. Scollay in earnest 
 conversation; asked Will what was the difficulty between him 
 and Bob ; he was very excited ; he said Bob had insulted him 
 in the dance, and he believed intentionally ; prisoner had been 
 drinking and was also excited; told them if they raised any 
 muss I would put them out ; witness said he was a cousin of 
 Will's, and married a daughter of Swan's mother-in-law; after 
 the spitting, Will had tried to get a revolver of him, and put- 
 ting him off, he said Dr. Dougherty had gone to get him one; 
 said he must defend himself if attacked; after the settlement 
 asked Will as to Ogle's advice. Witness censured him for the 
 act ; told him it was a wonder Bob had not blown his brains 
 out ; Will said, if he had, it would have served him perfectly' 
 right ; but he thought the matter could have been settled but 
 
87 
 
 for the advice of one or two pretended friends, and if a few 
 others had let them alone. 
 
 The hour of one arrived, and the Court adjourned. 
 
 3 o'clock, P. M. 
 ' The court met. — Wm. 0. Sprigg continued — He (Will) ex- 
 pressed regret at what he had done, and said he could never 
 forgive himself. On ihe day of the killing, it was at the bil- 
 liard room; prisoner was playing; about candle-light "Will came 
 in; stood near the table at which witness was playing; Mr. 
 Cochran was jesting about Will's appearance, when he put his 
 arms a'kimbo and straightened himself up; observed Will par- 
 ticularly for some time from having heard of his difficulty with 
 prisoner; there was nothing menacing about him to 'prisoner; 
 observed no embarrassment in prisoner's play; he was at an- 
 other table; Will was pleasant, and witness dismissed all ap- 
 prehension; Will had declined carrying arms, fearing in a pas- 
 sion he might use them; Will was about 30 or 33 years of age; 
 prisoner about 24 or 26. 
 
 Horace Resley, called. — Knew deceased since 1843; rather 
 impetuous, quick to resent an insult; never heard of his wear- 
 ing pistols; was regarded as truthful; prisoner gave witness a 
 printed circular about three days before the shooting; asked 
 him if deceased had seen the postscript when he signed; said 
 he thought not; that it was done to satisfy his friends in an- 
 other part of the State; prisoner told him of the insult, of hist 
 getting pistols to shoot deceased; told of deceased going info 
 Dougherty's to avoid him; of his invitation to the stable and 
 into a room; of his challenging deceased to the meadow. Wit- 
 ness asked prisoner why he did not shoot when spit upon; he 
 said he was takeirty surprise, he didn't know what to do; wit- 
 ness told him he would have struck him; prisoner told him he 
 was not able to £ght him that way; then observed, that as 
 both were pretty high mettled, he (witness) was very glad the 
 matter was adjusted; he replied that it was a wonder he had 
 not shot him down at the first meeting; prisoner left the print- 
 ed apology witk me, but gave no directions as to whether it 
 was to be kept private; don't think he spoke harsh of deceas- 
 ed; don't think he mentioned deceased's having -spoken of 
 him in harsh terms. Nothing peculiar in prisoner's appear- 
 ance; no indications of want of mental capacity at that time; 
 not aware of any letter having been written in explanation. 
 
 James Sprigg called. — ^^Heard of a difficulty between Swan 
 and Sprigg, whilst at the ball ; heard prisoner remark, " No, 
 I'll be damned if I do; I'll die first;" he was talking with. 
 Dr. Scollay. On Saturday met Swan at a store ; said he had 
 beard of Will's threat to chastise him ; advised prisoner to 
 
as 
 
 apologise ; he said he would, but was afraid of a difficulty ; h* 
 said he had acted badly, but he meant no harm by it ; Doctor 
 Scollay then came up, and he and prisoner, and myself, went 
 to the hotel to dinner ; Barrell and prisoner left the table 
 together ; soon after went out, .when prisoner said deceased had 
 Spit in his face ; prisoner said he'd give a thousand dollars if 
 Captain Archer was in town ; deceased was witnesses cousin, 
 and did not like to interfere ; about 3 o'clock deceased called 
 me over to Dr. Dougherty's office ; can't say whether he locked 
 the door ; said he'd heard prisoner purposed to shoot him, and 
 Dougherty had gone out to get him a pistol ; as we went to 
 the door, on leaving, saw prisoner and Koman on corner of 
 Baltimore and Seventh streets. Prisoner came over towards 
 the doctor's office, and then came up to me ; can't say whether 
 he tried the door ; said he had pistols — one for Will, and one 
 for himself; told him Will was waiting for a pistol ; he said) 
 <' Ah, I didn't know that." 
 
 I went to Keeler's store and proposed to him they ought to 
 be arrested, to prevent a street fight ; we went in search oi 
 them ; later in '.he evening prisoner was in a billiard rooni) 
 and Will was starting the coaches ; prisoner afterwards came 
 in a great hurry, took Betts and Keeler in the back room ; 
 thought^it was settled; jaw prisoner next day, (Monday,) when 
 he asked where he could find Mr. Roman ; invited him to dine 
 with me, but he declined, saying he wanted to see Roman. On 
 Monday, met Swan, told me if I saw Will to say there must 
 have been some mistake as to the place of meeting ; next saw 
 Will near the stage office ; prisoner had told me not to say 
 any thing to him unless he first asked ; Will inquired what 
 prisoner had said ; told him Swan had spoke about their meet* 
 ings across the river ; said he had received a note from him^ 
 which either proved him to be a fool or a coward, and he wouM 
 wait to see whether Swan was disposed to act manly, and 
 Spoke of the light manner in which the matter had been con* 
 ducted and blamed some of Swan's friends. 
 
 On Tuesday morning saw Will, who asked me to go down 
 to Dr. Dougherty's office; that he and Dr. ScoUey were about 
 to settle it, and he was tired of it; shortly after Dougherty 
 brought a written apology for deceased to sign, but he refused) 
 saying it was written by Swan; said he was willing the Doc* 
 tor might call in a third person, (naming Mr. Price and otln* 
 ers,) and whatever was agreed upon he would sign; told Dr. 
 Dougherty to say to prisoner it must be settled at once, no 
 matter how; went with Dougherty to ScoUay's office; found 
 prisoner there; prisoner was told Will would not sign the apol* 
 pgy; when prisoner said he must sign that^ for no other voidd 
 
89 
 
 do; Dougherty asked if he should tell prisoner what Will had 
 said; and told him he had said if not settled soon he would not 
 receive an apology or a friend from him; to which Swan replied, 
 " What, must there be a murder !" Dougherty said there was 
 no necessity for that. I advised a settlement, and he said he 
 would reserve the privilege of rejecting any draft of apology ; 
 told him he was safe in doing so, as neither of the gentlemen 
 would do anything wrong ; Swan said if he met Will unarmed, 
 he'd fire his pistol in the air ; met Dougherty in the evening, 
 and he said the matter had been settled; saw deceased and 
 Swan on Thursday following at the next ball ; on . Saturday 
 Swan and deceased were at witness' mother's evening enter- 
 tainment ; can't say as to their conversing ; they both appeared 
 to enjoy themselves; Will left before Swan ; some person spoke 
 of a bottle in Will's overcoat pocket, in the entry hall and 
 upon searching, found a pistol there ; I hid it ; didn't say he 
 would not go home unarmed ; he came next day, dined, and 
 got his pistol ; on next Thursday, 5th February, went with 
 Will to his father's; when speaking about the apology, said 
 Swan was a man of too much honor to abuse the apology ; 
 thinks he returned to Cumberland same night, and went again 
 to his father's on Friday, and we all came to Cumberland on 
 Saturday ; heard of apology having been published ; saw Will, 
 and told him to keep quiet ; on Tuesday morning, he came to 
 me, asked me to carry a letter to Mr. Semmes ; did say he was 
 sorry to trouble him again, but he thought Swan had treated 
 him very badly, but wished to take no advantage ; he only 
 wanted a plain, simple statement of facts from Mr. Semmes; 
 went to Mr. Semmes, and he told me to call again ; when he 
 gave me a letter, which I took to Will, with which he seemed 
 much pleased ; didn't hear Will denounce Swan, but spoke in 
 terms of regret, between the period of the insult and" the apol- 
 ogy. The prisoner is near twenty-six years of age ; never 
 heard or knew of the deceased carrying arms. 
 
 I. D. Richardson, recalled. — Conversing with Swan at thfe 
 hotel after the difficulty, when deceased came up and invited 
 us out to take a drink ; they seemed friendly ; saw deceased 
 and prisoner again at an entertainment at Mrs. Sprigg's, (rela- 
 tion of deceased.) Thinks prisoner had said he carried his gun 
 under his coat in passing Clabaugh, on his way to the hotel, 
 where he shot Sprigg. Knew Sprigg's character — he was 
 violent, but quick to forgive. 
 
 ■R. E. Hall called. — Knew Sprigg ; never heard of his being 
 bloodthirsty ; he was quick ; never heard his veracity doubted. 
 
 Cross-examined. — Lived only about one year and a half in 
 Camberland previous to the affair. Adjourned. 
 
m 
 
 MONDAY, September 26. 
 
 The Couft me(, and the State continvied its rebutting testi- 
 tnonj'. 
 
 Dr. Everett, called.-rr-Knew Wra. O. Sprigg; he was quick to 
 resent an insult; never heard of liis being a dringerous man, or 
 tfiat he carried weapons ; never heard his character for truth 
 questioned ; knows Dr. Moore ; never heard his veracity doubted; 
 'yritness had seen prisoner shortly after being sent to jail; Swan 
 said he had killed Sprigg, and deliberately ; and that if it was 
 to be gone through with again, he would not hesitate to do it 
 oyer; said that the gun used had been loaded to meet Sprigg on 
 the meadow ; he seemed quite excited ; lie talked rational ; said 
 it was the result of something contained in a letter by Dr. Seol- 
 ley, (the last paragraph;) witness, from his professional knowl- 
 edge, did not consider prisoner insane when he was talking to 
 him ; fegar<Jed the excitement he was under as a natural result 
 of the killing, 
 
 By defence. — Piisoner said the gun had been loaded by Gapt. 
 Thomas, with cartridges, bought by him for the purpose of 
 $ghting deceased, whom he had challenged. Deceased was 
 quick in a quarrel, and prompt to resent an insult. Witness 
 never entertained a particle of feeling against Swan ; had, and 
 now felt deep sympathy for him ; had said that violated law 
 should be vindicated ; would fc^el sorry at prisoner's being exe- 
 cuted ; was absent at the time of the killing, attending '.he Leg- 
 islature. 
 
 Orlando D. Robbins, called.^— About a week after prisoner 
 being in prison, visited him ; told him it was reported that he 
 was either crazy or drunk when he committed the deed ; to 
 yrhieh prisoner replied, that he was n^iiher. 
 
 Wm. Weber, called. — Knew deceased ; his character was that 
 of being easily excited, and when so he .might be called a vio- 
 lent man ; to get in^o a quarrel with him would likely lead to a 
 fight, as he would strike quick; he'd strike and readily make up; 
 of ? forgiving disposition ; never heard his veraeiiy questioned; 
 knows Dr. Moore ; his character for truth is good. 
 
 James W. Jones, called. — Saw two persons on the Mineral 
 Bank steps on Sunday night ; supposed it was deceased and 
 prisoner; the night was very dark; about nine o'clock ; had 
 never said positively it was them ; judged of them from their size. 
 
 By defence. — It was so dark could't tell whether the persons 
 were white or black; had told Mr. Jorden, next morning, of 
 having seen these two persons, whom I suppq$Gd to have been 
 deceased and prisoner. 
 
 John Lingo, calletJ.^r-Knew deceased ; he was quick to resent 
 an insult; never heard bis character for veracity doubted, but 9 
 
91 
 
 man who would doubt his word had better be getting out of his 
 way. Knows Dr. Moore; never heard his character for veracity 
 doubted. 
 
 Dr. Dougherty, called.— Was at the ball on 22d January; did 
 not see any difficul y between deceased and prisoner ; Saw de- 
 ceased next S.ilurdHy ; he said he had gotten himself into a 
 scrnpe ; asked ine io act as his friend ; said he had spit in pris- 
 oner's face, and some friend had told hira prisoner had armed 
 himself to shoot him ; said, "you know I never carry arms, not 
 even a penknife, and I wish you to get me a double barrelled 
 pistol ;" told him I would do so ; took him into my office ; I 
 then locked the Iron) door and went out the back door; Sprigig 
 told me if I saw Henry Atchirson, to send him to him ; whilst 
 out, saw prisoner going up the street ; witness watched him, 
 saw him go into a barber's shop under Barnura's hotel, (kept by 
 Heffelfinger;) got a single barreled pistol from Mr. Kennedy ; 
 showed it to deceased, who said it would'nt do ; went out to get 
 a revolver; went to Triber's siore, who said Swan had been 
 there, and borrowed one ; went to Devecmon's store, and got 
 one of Allen's revolvers; got buck shot at Norman Bruce's store; 
 toid Kennedy he'd procure a revolver, who said I could find 
 powder at his office; loaded the pistol at Kennedy's, in presence 
 of deceased, and gave it to hira, telling him it was merely for 
 defence. Deceased said he'd heard of prisoner's intention, and 
 had " no idea of being shot down like a dog ;" he said he had 
 insulted prisoner, and he waned him to challenge him, and 
 " they'd fight it out in the usual way." Went up the sti¥et 
 before deceased to see prisoner, and tell him deceased was armed; 
 deceased said I cuuld do so ; saw deceased opposite my office 
 as I went to it ; crossed over to him, and we walked to the hotel 
 together. A sleigh drove up, deceased having promised to take 
 some ladies out, but he sent it off, snying he didn't want te leave 
 town until he heard from prisoner; that if he challenged he 
 wanted to be there to receive it ; when seen again, soon after, 
 deceased said some person hatj told him that Swan had put the 
 matter in the hands of Mr. -Roman lor settlement. Witness aftel'- 
 wartjs got a sleigh, and deceased got m ; deceasea said he had 
 seen prisoner, and the thing was likely to turn out ridiculously; 
 it was before sun down ; said he would tell all about it after 
 returning ; and when back, he said he had met prisoner, and 
 seeing him cominff up, deceased drew his pistol, and prisoner 
 said, " My God, Will, don't shoot — I came to see if this thing 
 ► coulJ'nt be settled ;" that he put up his pistol and went up stairs 
 with him, when prisoner asked if he should say he did not intend 
 to insult him at the ball what he'd do — to which deceased re- 
 plied, " I will do anything any gentleman will say is right ;" 
 
92 
 
 thinks he said they then went and drank together. Did not see 
 him again until Monday night, and then met him on the corner 
 of Centre and Baltimore streets; deceased was alone, it was 
 about 9 o'clock ; was going to my office ; Dr. ScoUay came in 
 about half an hour after, Sprigg was not there ; Scollay enquired 
 for deceased, told him likely find him at Norman Bruce's or Dr. 
 Perry's : we found him at Perry 's ; arranged to have an inter- 
 view with him at my office ; told him for what we came ; said 
 he'd go up stairs to excuse himself to the ladies, to prevent 
 alarm ; met us at ray office; he expressed regret at having spit 
 in Swan's face; said he'd be satisfied with whatever we would 
 do, but if not agreeing to terms, we might call on Mr. McKaig, 
 Mr. Semmes, and Mr. Thurston, to prepare seme plan of adjust- 
 ment, reserving to himself the right to accept or reject whatever 
 might be proposed ; Dr. Scollay said he reserved a similar right 
 for prisoner; it wsis understood \hat these reservations were right; 
 there was an understanding as to the mode of giving apologies, 
 ' as to which should make the first ; deceased said the last insult 
 must be first apologised for. Witness drew an apology; saw 
 prisoner, told him he had seen deceased ; prisoner flung the 
 draft of apology aside, wrote one himself, part of which was in 
 the original; prisoner directed that deceased should be told that 
 he had written it, so as to relieve Scollay of the responsibility ; 
 went to hotel, found deceased was not there. Next morning 
 told. them I had not seen deceased ; this was Tuesday morning, 
 after breakfast found deceased with his cousin at ray office ; he . 
 refused to sign, and suggested referring it to the three gentlemen 
 above named ; showed him an apology I had drawn, and he said 
 he would sign that without hesitation, and requestedtme to tell' 
 prisoner if he did not: settle it promptly, as between the friend.* 
 then, acting, he would not receive another friend ; said he was 
 sorry for the insult, and that he wondered he didn't strike him 
 It the time of the insult ; went to Scollay's office, where Swan 
 was walking the floor; told him that deceased would not sign it, 
 and prisoner said "does he want me to commit murder;" he, 
 deceased, objected to that portion of it, in which Swan claimed 
 the right to do as he pleased with it ; that he expected Swan to 
 give him a written statement as to the ball room affair; after din- 
 ner met Scollay, who showed an apology altered by Mr. Semmes; 
 the objectional part was still there, but said I should take it to 
 deceased ; did so, and deceased said he .would not sign it whilst 
 it was there, though he said it was a gross insult he'd given; saw 
 prisoner again at Scollay's office, and prisoner said, " Will must 
 sign it, for I'll take no other apology from him." 
 ■ Witness suggested taking out the portion objected to; Mr. 
 Geo. Neil came in, on business ; after a while witness again 
 
93 
 
 proposed erasing that part about the ball room affair, to whiih 
 Scollay objected ; witness asked Swan so to alter it, and he 
 thought he could influence Sprigg to sign it ; -was asked So 
 copy it, and see Sprigg soon, and pulled out his watch to see 
 what time it was, giving the impression that he was under an 
 engagement to go somewhere ; took the apology to Sprigg, and 
 advised him to sign it with the objectionable part in it, left him 
 for a short time to think of it, whilst I attended to some busi- 
 ness ; upon retiring, Sprigg said he would sign it, provided, 
 Swan would give him a written apology about the ball-room af- 
 fair; told iS^prigg that I had assurances from friends that Swan 
 would do so ; did not tell Swan of this, as Scollay said it was 
 not official ; Sprigg signed it, and said '" I suppose the matter 
 is settled now, and I am glad of it ;" told him I was too ; 
 Sprigg expressed his gratitude for my action in the matter ; we 
 walked down the street, and I left hira at the post office; met 
 Swan going to the post office, and told him of the apology, and 
 he asked me to go to Scollay's office ; Swan came, told him, 
 and he asked assurance of it's being unaltered ; he said he had 
 met Sprigg at the post offire, but did not speak to him ; Swan 
 went out, and he and Sprigg met; can't say what was said be- 
 tween them, and returnmg. Swan sat down to write, what he 
 said, was a letter to explain bis conduct, to Sprigg ; next saw 
 liim at dinner, and coming out, called Sprigg to him at the door, 
 when he said Swan had published the apology, with a postscript 
 holding him up to the world as a coward ; Sprigg said he inr 
 tended to publish him, and he should want a letter from me^^^x- 
 plaining the matter ; asked me to see Swan and get a copy of 
 the publication, and seeing Swan, he asked me to go now and 
 get it; Sprigg was much excited ; said he had left it to his friends 
 long enough, and Swan had put him in an ugly predicament ; 
 went to Swan, told him he had placed me in a bad position, in 
 getting iS'prigg to sign the apology ; he said he would give me 
 a written statement relieving me of a!l difficulty ; told him it 
 was too late, that Will had determined to make a publication, 
 and told him I should be compelled to say ihe note was not 
 true, when Swan remarked, he thought it was unnecessary for 
 me to do so ; told him his publication was wrong ; he said he 
 had done it under advice of several of the best heads about town; 
 told him I did not care who they were, they had advised him 
 wrong ; he said he did not think so ; asked him for a copy of 
 the prmted circular ; said he had none about him, but, if I'd go 
 to bin office he'd give me one; afterwards went (o Swan's 
 office ; he gave me a copy and showed me a rough copy of a 
 challenge, as I suppose, for the purpose of convincing me he 
 had sent a challenge — it was a long letter, and written on the 
 
94 
 
 back " corrected by J. P. Roman ; never heard from Spngg 
 that Swann liad sent It ; told Swan that Spriggf had paid no 
 attention to his chullen^e ; Swan went to post office ivith' me ; 
 he showed me an unfinished ieiter, intended for Sprigg, explain- 
 ing ihe bill room afT.iir; witness gave S'prigg a rough copy of a 
 Statement ot the affrtir on Wednesday; saw Swan on Wednes- 
 day, and told him of having given the letter to Spring, and that 
 the riole was pronounced untrue; iS*an said I need not have 
 done 'so, and he wanted to satisfy me he bad been to the 
 meadow to meet Sri^rg; he said anybody who said be had at- 
 tempted to sviibdraw^lhe apology lied; never saw him in jail. 
 Had met Spri'gg; asked him if he had seen "that fellow," 
 ^meaning SwahJ and he said he bad not ; meant no disrespect 
 to Swan ; it was on Wednesday, and never saw him agrin until 
 dead. Had never seen or head anything of Swan, that gave 
 the impression of insanity. 
 
 By defence — Before the affair was considered adjusted, Swari 
 was greatly excited ; had acted with a view to adjust the diffi- 
 culty, not considering duelling a test o( courage ; had never 
 beard Sprigg speak harsh of Swan ; had told Sprigg that Swan 
 had backed out, when Sprigg said it had been settled and it did 
 not become him to speak of the matter; did not mean that 
 prisoner had backed out from the fact of his accepting an apolo- 
 gy ; but from his not resenting the insult at the time of bein^ 
 spit upon ; when locking my office, whilst deceased was iii 
 there, I intended to go and see prisoner and tell him of having 
 giv%n deceased the revolver, and supposed that would do away 
 with fears of a street fight; intended by locking the doortokeep 
 any and everybody out ; and doing so had no idea of prisoner's 
 coming there, but did so to keep deceased in; had no reason 
 for believing thai prisoner knew deceased was in my office ; had 
 been told that prisoner had been at the door ; bad tt)kl deceased 
 that prisoner had gone into a barber shop and that he would 
 probably shoot him through the window; prisoner said he had 
 gone to the ground, but that deceased had not met bim, and 
 that if they had fought he would rather have been «.hot himself 
 than to have killed deceased; thinks deceased never mentioned 
 having received Ihe challenge until Tuesday; did not think 
 prisoner .vould fight; had assisted in geltingprisoner out of the 
 difficulty; had heard ot prisuner's being engaged in a due! in 
 Mexico, and of his having a difficulty with a Mr. Mercer, 
 which was settled after challenge, and had formed an opinion of 
 prisoner's courage ; deceased never told me he had beeii told 
 he bnght to beg for his life ; had no refcollection of prisoner's 
 saying the apology must be signed within an hour; prisoner did 
 not say he had an engagemement to attend to, when asking that 
 the challenge might be signed. Adjourned. 
 
96 
 
 3 o'clock, p. M. 
 
 The Court raet. — Charles B. Thurston, called — Was in the 
 billiard room on the afiernoon of the night ofihe killing ; played 
 a game with prisoner ; whilst pinyinp;, dereased came into the 
 room, walked around, and entered into ii'loud laiigliing conver- 
 sation with Dr. Cochran ; deceased remained in the room abciut 
 fiil'leen minutes, and ivent oiil ; whilst (here, Cochran was talk- 
 ing to deceased ol his size; It'll jjrisoner in the room ; afier- 
 wards heard of the shnniinj; ; there was nothing in prisoner's 
 conduct or manner different Irom what was common to him. — 
 Saw nothing on the part of deceased indicatinfi; defiance or 
 threatening. Deceased was quick to lake ofl'ence ; impulsive, 
 though not desperate; would rely with the ulmost confidence 
 upon his. word. Knows Dr. ' Moore ; never ht'ard '^ny doubt as 
 to his veracity ; believed he 'j^re a Kiir reputation; had seen 
 prisoner in jail, when he Pfiquirnd after Mr. iS'prigg's family, and 
 expressed much sympathy for ihem. 
 
 By defence. — Never had any conversation with Kramer, tak- 
 ing sides as to the parties; positive as to having left Swan in the 
 billiard roono. 
 
 The State here announced its having concluded its testimony. 
 
 The defence thereupon culled its lebutiing evidence. 
 
 Andrew J. Kennedy, recalled. — Capl. Thomas came to Cum- 
 berland OR Wednesday or the day before the liillmg, and thinks 
 he left that night. Witness went to Dr. Dougherty's office, 
 when deceased said "come in and lock the door," saying that 
 Swan had already been there ; deceased a^ked witness for. a pis- 
 tol ; cant say where Dougherty was then. 
 
 Mr. Price said the delence had concluded its testimony. 
 
 Mr. Harbine, State's Attorney, suggested the propriety of 
 adjourning unlill to-morrow, to aliow counsel to arrange the mass 
 of testimony, the better to subserve what was due alike to the 
 State and the prisoner. There being seven counsel, and all 
 probably anxious to speak, the policy of an adjournment would 
 recommend itself to the sound discretion of the Court. Adj'd. 
 
 Note. — As Mr. Roman was deemed an important witness in 
 the cause, he declined to participate in the arguments either be- 
 fore the Court or jury. 
 
SPEECHES OF COUNSEL 
 
 IN IHB CASE OF 
 
 STATE vs. ROBERT SWAN. 
 
 September 27, 1853. 
 
 The Court having met, Mr. Harbine, prosecuting attorney for this 
 County, announcing that since the adjournment of last evening, a 
 witness early summoned in the case had arrived, 'asked that his tes- 
 timony be admitted, (understood to be touching the sanity or insanity 
 of the prisoner.) Mr. Price, on behalf of the defence, said two wit- 
 nesses on that side had also arrived, and he should oppose the opening 
 of the door for the admission of other testimony ; or else, their evi- 
 dence would be pressed for admission, and by the time of getting 
 through with these witnesses others might arrive, and thus no one 
 could tell when the testimony would be concluded. The Court de- 
 clined opening the case for admission of additional testimony. 
 
 Mr. Harbine tli«n commenced the argument before the jury upon 
 the law and the testimony in the case: 
 
 He said that the Counsel who made the opening statement to the 
 jury on the part of the defence, had spoken of the history of this 
 case and charged the State with delaying the trial. Now, although 
 this had nothing whatever to do with the issue the jury had sworn to 
 try, yet being intfoduced, he would speak of the facts as they exist- 
 ed, since the removal of the case to this Court. He did not desire 
 to speak of the causes of the removal, for his colleague, (Mr. Gordon) 
 at whose instance it was done, would fully vindicate that act ; nor 
 yet did he propose to say aught in regard to the presence of his col- 
 league from Baltimore City, (Mr. May) for he was yet to speak, and 
 was able to satisfy the most skeptical as to the propriety of'the course 
 of the Executive, in commissioning him to assist in this prosecution. 
 The Counsel for the State had not caused any delay in this Court. — 
 kX every term since the removal of the case from the Circuit Court 
 for Allegany Count}', he- had proffered to the prisoher, through- his 
 Counsel, a trial, and each time, except the last, they had refused. — 
 Judge Merrick, who presided in Allegany County, was not authorized 
 by law to act here, anjf filed his written declaration with the Clerk 
 of this Court. Believing that Counsel were authorized by the act of 
 Assembly of 1852, chapter 68, to appoint a proper person to preside, 
 he had twice prior to the November term, 1852, and once at that 
 term, asked the Attornies on the other side to'agree with him in. the 
 appointment of a Judge. They refused. Again, at March Court, 
 1853, he made them the same proposition, and again they refused. 
 The power to notify the Judge of the adjoining circuit of the inabil- 
 
98 
 
 ity of Counsel to agree upon a proper person to preside, as provided 
 by the act of Assembly referred to, did not arise until the last named 
 term, when the notice was given, and the services of his Honor Judge 
 Tyson were procured, but not in time for that Court. The case then 
 stood for trial at last July term, when by agreement of Counsel on 
 both sides, this time was assigned for taking it up. From thesefacts 
 it would appear that the Slate is not justly chargeable with delaying the 
 trial. Had the prisoner consented to the appointment of a Judge, 
 it would have taken place at November term, 1852, or March term, 
 1853'. If, then, the witnesses lor the prisoner had scattered far and 
 wide, and he had been prejudiced in any manner by the delay, the 
 simple and conclusive answer was that it was his own fault. The 
 Counsel on the other side contended that the act of Assembly referr- 
 ed to gave them no further power to agree — that having agreed in 
 Allegany County to the appoinlnient of Judge Merrick, that power 
 was exhausted. He did not think so. This was a new case in the 
 Circuit Court of thjs County, and as such the same power that exist- 
 ed there to agree exists here. If, however, that power was exhaust- 
 ed, surely the Counsel for the Slate could not justly be charged with 
 delaying the trial. It was not in their power to make the law, or to 
 alter it, arid it was certain that so soon as the contingency happened 
 authorizing the appointment of a proper person to sit in the case, by 
 the judge of the adjoining circuit, he was ealled upon to act, and did 
 act. 
 
 The prisoner was indicted for murder in the first degree. To that 
 indictment he had pleaded not guilty, and the jury were to try the 
 issue. They must understand that the issue joined was not confined 
 to murder in the first degree, but equally related to murder in the sec- 
 ond degree, and manslaughter, either of which they could find, accor- 
 ding to their views of the evidence. In the progress of this trial 
 much had been said about the jury being exclusive judges of the law 
 in criminal cases, and in support of that view section 5, of article 10, 
 of the new constitution of Maryland had been cited. That section 
 only affirmed what was the law before. The jury had no new pow- 
 ers given by it, but were acting wilh the same power as other juries 
 had in criminal cases both before and since the adoption of the new 
 constitution. They could judge of the law of the crime, and decide 
 what facts amounted to murder in the first or second degree, or man- 
 slaughter, but at the same time they must remember and confine 
 themselves to the law as it is,, for tliey could set up no other rule or 
 standard in its place. They were not law-makers, and therefore all 
 that was said by the defence about the code of honor, ai^d the proof 
 they ofl^ered from a^gentleman distinguished in the army, in regard to 
 the principles of that code, was entirely irrelevant. At best it was 
 but an arbitrary standard, that each person set up for himself. Duel- 
 ling was part of that code, yet so far was it from being recognized as 
 law, that he who killed another in a duel at common law was guilty 
 
99 
 
 of murder, wliile in addition to the severe penalties of our Statute, 
 according to the 36th section of the 3rd article of the new Constitu- 
 tion of this Slate, any person who fought' a duel, or sent or accepted 
 a challenge to do so, was rendered incapable of holding any office of 
 trust or profit under the laws of Maryland. He would say to the 
 jury in the language of Judge Parker when delivering his charge at 
 the trial of Selfridge's case, that these were "principles which you 
 as jurors cannot recognize. The laws you are sworn to administer 
 are not founded on them. Let those who choose such principles for 
 their guidance erect' a court for the trial of points and principles of 
 honor, but let the courts of law adhere to' those principles which are 
 laid down in the books and whose wisdom ages of experience have 
 sanctioned." Noi yet had the jury any right to decide this case by 
 the verdict in Stump's case, or Mercer's case, or Myers' case, or 
 Seiders' case, or of any of the other cases named by the Counsel 
 who called these cases the common law of this country, and argued 
 that the jury should be bound by them. How was it possible for 
 them to be a guide for the jury when they had not the data upon 
 which they were decided? They could not, therefore, tell what 
 facts had influenced the minds of the jurors in determining these ca- 
 ses. But besides this; the cases themselves differed widely. They 
 established no rule, and if juries followed them the law would be 
 most arbitrary, uncertain and unjust. Such doctrine might do forthe 
 advocates of " higher law" or no law, but sworn jurors must look to 
 the law of crime as established by the Legislature of Maryland and 
 by the common law of England in force here. They could make no 
 exception of this case. That law was simple and easily understood. 
 The 3rd section of the act of 1809, chapter 138, after enumerating 
 particular cases, declared that any murder which shall be committed 
 " by any kind of wilful, deliberate and premeditated killing" was 
 murder in the first degree, " and all other kind of murder shall be 
 deemed murder in the second degree," while the Statute did not de- 
 fine manslaughter, which therefore remained as at common law. — 
 The difl^erence between murder in the first and second degree lies in 
 the intent with which the act was done. When one person liilled 
 another with a deliberate and premeditated intention of taking life, it 
 was murder in the first degree, but if death ensued from such an in- 
 tention of doing great bodily harm or injury only, then it was murder 
 in the second degree. Manslaughter differed from murder princi- 
 pally because there was no malice in that crime. It was defined to 
 be the " unlawful killing of another without malice either express or 
 implied." Bearing in mind these distinctions between the general 
 grades of homicide, the question for the jury to determine was, do 
 the facts in this case come within any of them, and if so, of which ? 
 He had said that the prisoner was indicted for murder in the first de- 
 gree, and thought the facts and law would show him to be guilty of 
 that crime. To make good that position it was necessary to show 
 
100 
 
 in the language of the act of Assembly that the killing was " wilful, 
 deliberate and premeditated." 
 
 He would first address himself to this enquiry, was the killing in 
 this instance wilful ? 
 
 In the absence of all proof of coercion that would be the legal 
 presumption. The rhanner of killing, the weapon, the destructive 
 load in it, and the discharge of the second barrel of the gun after the 
 first had failed to. take effect, all proved that it was intentional and 
 wilful. To th*se facts might be added the prisoner's declarations to 
 Stewart, to Callan, to Somercamp and Gephart that he " came to 
 shoot and did shoot him," and that he "intended to do it, and did do 
 it." But the Counsel for the defence had alleged that at the time of 
 the killing the prisoner's mind had given way, — that he was then 
 governed by an irresistible and uncontrollable impulse, — was not a 
 voluntary agent, and if so, the killing was not wilful and he was not 
 punishable. He would examine their plea of insanity. Where that 
 plea had been successful the jury would generally find proof that the 
 prisoner had previously been in bad health, — was subject to epilepsy 
 or some other disease conducing to insanity. But few cases were on 
 record where its existence had not been traced in the subject long an- 
 terior to the commission of the act, or had not perhaps in generations 
 gone by existed in the blood kin of his family. No such fact, had 
 been shown in this instance, aind he had a right to infer that had any 
 existed, the able Counsel for the defence would have made it part of 
 iheir case. If true, this was a most strange case of insanitj'. No 
 symptoms of that disease were shown to exist until a few days before 
 the horrid deed was done, and after that it disappeared entirely. Was 
 it not wonderful that the mind had left its moorings for so short a time, 
 and since had been sane as ever ? Yet such was the case. 
 
 He read sections 372-73 of the 2nd volume of Greenleafs Evi- 
 dence, and section 5, note 4, of the 3rd volume, and contended that 
 they most clearly expounded this subject. From these authorities 
 he would deduce the following legal principles : 
 
 First. The barbarity of a deed afforded no presumption of insani- 
 ty, ff, indeed, that were proof, few could be convicted of the high- 
 est grade of crime. That principle disposes of Cutter's testimony, 
 who gave as a reason for supposing the prisoner insane, thai no sane 
 person would commit such a crime. 
 
 Second. The burden of proof, when that plea was set up, lies on 
 the defence, and unless the jury were satisfied of the sufficiency of 
 the proof to establish the insanity, they were not to regard it. 
 
 Third. The jury must believe the prisoner insane at the time the 
 act was done. 
 
 To show that, evidence of his insanity before the act is admissible, 
 for if it is once proven to exist, -the law presumes its continuance, 
 but evidence after the act should have little or no weight, for it may 
 be simulated, or be caused by the crime itself. Hence the proof of 
 
101 
 
 the desire of the prisoner to sleep, his thirst, his vomiting, all which 
 occurred in the Justice's office when he was about being committed 
 to Jail, were entitled to no consideration. These acts were but the 
 eflect of the excitement caused by the killing, and were not by any 
 means evidence of the cause that led to the perpetration of the deed. 
 By the testimony of. the physicians examined, thej' could be caused 
 by a high degree of excitement. That was a natural and proximate 
 cause, and to it, and-not to insanity, ought they to be attributed. The 
 jury would remember the intense excitement that immediately fol- 
 lowed this lamentable tragedy, pnd it was not going too far to say 
 that the prisoner, who beheld his victim dead before him, should 
 have became so much excited that after it began to subside, and his 
 system relaxed, the causes detailed naturally followed. 
 
 Fo'irlh. To excuse crime on the ground of insanity, the prisoner 
 must not be able to distinguish right from wrong, with reference to 
 the act done. 
 
 The question then for the jury to determine under this plea was, 
 did the prisoner at the time of the commission of the .offence charged, 
 know that he was doing wrong? The insanity mustgo to that extent 
 which he thought the proof was very far from doing. There was 
 testimony to show that he was troubled, melancholy, in apparent, 
 doubt what to do, would become excited when talking of his difficul- 
 ties with the .deceased, and sometimes neglected speaking to an ac- 
 quaintance whom he met. But that did not make out a case. Who 
 had not thus acted when troubled or deeply absorbed in thought? If 
 such proof was sufficient, half of the community were insane. It 
 was true that two physicians had given it as their opinion, that from 
 the evidence in the cause, they did not think the prisoner at the time 
 he done the act' capable of distinguishing right from wrong. But 
 some, perhaps the strongest proof that went to make up that opinion, 
 occurred after the killing, and therefore ought not to have been con- 
 sidered. Exclude it, and we have a right to suppose their opinions 
 would be different. On the contrary the State had proven sanit)' by 
 the previous acts, as well as by witnesses, equally . respectable and 
 reliable with those of the defence, and with equal opportunities of 
 observation. This proof began with his letters to Judge Perry on 
 the 7th of February, continued day by day, until the night of the 
 11th, when the deed was committed, and ended with his confinement 
 in the Jail of Allegany County. Seymour proves that one or two 
 days before the killing the prisoner transacted business as usual. — 
 Thurston was playing billiards with him only about half an hour be- 
 fore the fatal deed, and said he played his ordinary game, and seem- 
 ed as pleasant as usaal. When on the hunt of the deceased, he con- 
 cealed his gun from a gentleman he met, and again when he looked 
 into the billiard room. The man who does not know right from 
 wrong would not conceal the weapon by which he expected to com- 
 mit such an act. He was aware that much of the State's evidence 
 
102 
 
 on this question was of a negative character, but if the parties had 
 equal opportunities of seeing a state of mind asserted to exist, and 
 did riot see it, there was room to doubt the correctness of that asser- 
 tion. However, tlie State had produced afBrraative proof that Swan 
 knew he was doing wrong when he iiilled the deceased. To three 
 witnesses, immediately after the deed was committed, and without 
 their solicitation, he spoke of delivering himself up to the officers. — 
 Now why propose to do so unless conscious that he had violated the 
 law and done wrong? The man who was not aware of the moral 
 quality of his actions would certainly not condemn himself. To 
 another witness who said, "send for an officer," the prisoner replied, 
 "that is right, send for a Judge, Constable, or who you choose, I am 
 here." Why was it right in his opmion, if he did not know right 
 from wrong? Nor in this connexion was the exclamation of the 
 prisoner to one of the children of Judge Perry to be forgotten. It 
 was on the same night, and shortly after the perpetration of the hom- 
 icide. He had united with them in prayer, and when it was over 
 said to one of them, "Oh ! Sally, you will think well of me i( no 
 one else in the world does." Was not that language directed to the 
 act he had just committed, and did it not refer to the condemnation of 
 the world that would be visited upon him, and thus proved that he 
 was conscious of the moral quality of that fatal deed. 
 
 Having then shown that the prisoner was not insanfe, and that the 
 homicide was wilful, he would proceed next to prove'tbat it was 
 "deliberate and premeditated." 
 
 The words "deliberate and premeditated" went far towards mak- 
 ing up our Statute definition of murder in the first degree. Without 
 them the homicide would only amount to manslaughter. But though 
 it was essential that the killing, to become murder in the first degree, 
 must be characterized by both, yet it was established that "the length 
 of time between the design formed and its execution is immaterial." 
 Wharton's cr. law, 435. It had, therefore, been said by the. learned 
 author just quoted "that if the party killing had time to think, and 
 did intend to kill for a minute as well as an hour or a day, it i? delib- 
 erate, wilful and premedi^tejd killing, constituting murder in the first 
 degree." This was the le-gal meaning of these words in our Statute. 
 Was then this homicide deliberate and premeditated? 
 
 Cramer testified that almost half an hour elapsed from the time 
 Swan left the billiard room until his return, and during this time he 
 walked about three quarters of a mile to get his gun from his office. 
 Now it was clear to his mind that the prisoner had determined 
 upon his course before leaving that room, and during the intervening 
 time was deliberating upon it. To two of the witnesses he declared 
 at diflMsrent times, that "he had made up his mind to kill him." — 
 What stronger language could be used to express deliberation and pre- 
 meditation? "Made up his mind" certainly means that he had re- 
 flected and came to a deliberate conclusion before acting in the prem- 
 
103 
 
 ises. To another witness he said "he had shot the deceased, came to 
 shoot him, and did shoot him." Why come to shoot him unless it 
 was pre-determined and considered heforehand? To anolher witness 
 lie said, that he never determined to kill him until the day he did. — 
 One day before the commission of the offence he said to Scollay that 
 "if the publication went on Spfigg would seal his own fate." The 
 day before that he declared, that if a publication was made of the 
 character he had Understood it would -be, it would make him desper- 
 ate, and force him. to attack the deceased. Thesp threats clearly show- 
 ed his determination, at least one or two days before the fatal deed. 
 They were hypothetical, it is true, but that, did not make the act less 
 deliberate and 'premeditated. When the prisoner knew that the pub- 
 lication would be issued from the press, he acted like a person who 
 had made up his mind to revenge him.self.' The jury would remem- 
 ber his conduct at Roman's office on the 11th of February. He sat 
 there and said nothing for several hours. His mind was then busied 
 in the"scheme so fatally carried out on that night. He then spoke of 
 his kind feeling for the family of the father of the deceased, — referred 
 to his relations in Hagerstown, and deprecated the effect any further 
 difficulty with the deceased would have in breaking those relations, 
 and alienating the-Sprigg family from hhn, yet concluded by saying 
 that the deceased was going to make his publication, and he was de- 
 graded any how. On the afternoon of the same day he told Roman 
 that the piibliCatlon would be out the next morning, and was then ,in 
 type, and left him under the impression that he was going to seek a 
 street fight with the deceased. From that evidence it was easy to 
 trace the workings of the prisoner's mind. He had declared that the 
 publication would seal Sprigg's fate, and novv knowing when it would 
 appear, he was weighing matters pro and con. On the one side 
 he did not wish to incur the displeasure of those he respected and 
 the one he loved, on the other was passion goading him on to re- 
 venge. Thus stood the scale in equal poise, until he bethought him- 
 self that the deceased had already degraded him, and then his mind 
 was no longer in doubt, but determination fixed and fatal was his. — 
 Did not this weighing of matters, this arguing within himself, prove 
 deliberation and premeditation? The prisoner's declarations while 
 in Jail sustained this position. To Everett, who visited him while 
 there, he said he had killed the deceased deliberately, and under the 
 same circumstances would do it again. To the same witness and 
 and Moore, who seen him there at different times, he said he had 
 killed the accused because of the winding-up paragraph of ScoUay's 
 letter. The part of the letter he alluded to was that he (Scollay) did 
 not regard the apology as having been written in answer to the chal- 
 lenge addressed by the prisoner to the deceased. That was in con- 
 flict with the note appended by the prisoner to the printed apology or 
 circular, which stated that the apology was in answer to the challenge. 
 Now this letter which called in question the correctness of the priso- 
 
104 
 
 iier's note to the circular, was shown to him by the author one day at 
 least before the murder, and he desired soraetlting to be added to it. 
 That was refused. The prisoner was then left to reflect on the po- 
 sition that letter and Doiigherties' would place him in before the com- 
 munity, and no doubt in accordance with his threat, resolved upon 
 the course he afterwards pursued. Knowing then that the publica- 
 tion would be out in the newspaper the next morning, and true to 
 his deliberately formed and pre-determined purpose, that night he 
 killed the deceased. 
 
 Having established this to be a case of murder in the first degree 
 by showing that it was "wilful, deliberate and p~remeditated," he 
 would proceed to inq^uire if there were any facts in the case that un- 
 der the well-known principles of law would reduce the grade of the 
 crime. It was well established by the best writers upon criminal 
 law, that no words of reproach, how grievous soever they may be, 
 or indecent, provoking actions, or gestures expressive of contempt 
 or reproach, without an assault upon the person, will free the party 
 killing from the guilt of murder, if he used a deadly weapon. He 
 read from Wharton's cr. law 36S, 3rd Greenleaf's Evidence, sections 
 132-24. In this case a deadly weapon had been used,, and there 
 was no provocation to the fell deed but words. The fact that the 
 statement of the deceased had been published did not take the cabe 
 out of that legal principle, for the law recognized no difference be- 
 tween words printed or spoken. Nothing short of an assault would 
 mitigate or reduce the offence. The parties, after the publication of 
 the prisoner's note, had met at Cowton's Hotel, and at the billiard' 
 room, on each of which occasions there was ample opportunity for 
 Sprigg to attack him, but no witness had testified that there was even 
 a desire manifested, much less an assault made on him. 
 
 The prisoner had, however, been twice assaulted by the deceased. 
 The first time it occurred iij the Assembly Room, on the night of the 
 22d of January, the other time was when his face was spit upon, on 
 the 24th of the same month. But neither of these could, under the 
 law, constitute the provocation that led to the fatal catastrophe. No 
 principle was better established by the books, than, if between the 
 provocation receivedj no matter how great it may have been, and'lhe 
 mortal blow given, there was sufficient time for passion to subside 
 and reason to interpose, and the perspn provoked afterwards killed, 
 it was murder in the first degree. He cited Wharton's cr. law, 375- 
 7-8, 3rd Greenleafs Evidence, 125, 4th BJackstone, 191. Now 
 from the first assault to the 'night of the killing, it was twenty days, 
 and from the second assault it was eighteen days. Was not that suf- 
 ficient cooling time? Could there be a doubt upon that point, when 
 in this long interval the prisoner in very many ways must have had 
 his attention called to other subjects ? 
 
 But not only was there time to cool, but the prisoner did cool be- 
 tween these assaults and the killing. Scollay testified that the apolo. 
 
105 
 
 gyvvas by both parlies considered a fiill settlement of the difficulties 
 existing between Ihera. The jury would remember the gratification 
 expressed by Swan at the reception of the apology, as tesiified to by 
 Kennedy, and that ha went and met Sprigg, and' they shook hands 
 together, as proven by Dougherty. Now this apology was given on 
 the 27th of January, or two days after. the last assault, and was for 
 the very purpose of atoning for that gross outrage. Two days after 
 that apology was given there was another assembly at which the par- 
 ties met, and at Sprigg's request danced opposite each other in the 
 same coiillion, drank together, and acted as sincere friends. Two 
 more days pass and they are again found at another parly together, 
 and enjoying themselves in the same social circle. Here ihen be- 
 yond doubt was a reconciliation between the prisoner and the deceas- 
 ed. The blood had cooled. The insults of the past, though never 
 so grievous, were blotted out, and enemies became friends. There- 
 fore lo kill for an assault happening anterior, would be the highest 
 grade of homicide, if done as this was, with the deliberate purpose 
 of taking life. 
 
 There were two disputes or difficulties between these parties, to 
 one or the other of which belonged all the facts pertinent to this case. 
 The first originated at the assembly, on the night of the 24th of Jan- 
 uary ; the second was caused by the printed circular, consisting of 
 the apology, with the note of the prisoner appended. In both in- 
 stances Swan was the originator, and was in fault. That assembly 
 found them friends. The prisoner interfered with the dance after his 
 "partner had taken her seat, and that gave rise to the first difficulty. 
 What right had he to act thus ? Had he taken his seat as he ought, 
 they would doubtless have been on good terms to this hour. For 
 that conduct Sprigg spit in his face, was challenged, and after an in- 
 terview, the friends of the parlies came forward, and an amicable set- 
 tlement of their difficulties was effected, the deceased giving to the 
 prisoner an humble apology. Their past difficulties settled, they 
 were friends again, and attended the same convivial parties, and join- 
 ed the same merry dance. Who was the first again to break these 
 relations? It was the prisoner. He did it by publishing the note 
 appended to the printed apology. That note in efl^ect called the de- 
 ceased a cosyard, and was inconsistent with the terms of the apology. 
 It was just cause for his indignation, and induced him to make the 
 publication that led to his deatfi. He had a right to vindicate himself 
 from the aspersion of that note. It was true, that the prisoner sought 
 an interview, and sent him word that he did not intend to call his 
 bravery in question. But he had given out copies of that*circular, 
 where that explanation could never reach, and even after he was told 
 of its objectionable feature, gave Ressley a copy. How otherwise 
 than by a publication could he correct the impression drawn from 
 the printed circular, which had been scattered where and to whom 
 the deceased knew not ? 
 
106 
 
 Thus twice were they friends and twice became enemies by the 
 acts of the prisoner, and if the deceased retorted upon him with 
 great severity, the latter .should ever have remembered that his own 
 conduct gave rise to it all. 
 
 The State had most fully proved its case, and he would say no more. 
 
 Mr. Gordon, prosecuting attorney of Allegany followed. He re- 
 ferred to the extraordinary circumstances altendihg this cause, from 
 its commencement to its being ultimately brought to trial ; defended 
 the Governor in his course in regard to the case, as a duty imposed 
 upon him under the Constitution; referred to the act of the Legisla- 
 ture of April 1st, 1853, providing for the disqualification of judges, 
 and the selection of special judges to try causes, and said that the 
 distinguished gentleman (Mr. May) appointed to aid in the prosecu- 
 tion, had been chosen upon his (Mr. Gordon's) direct request and 
 recommendation. This, he said, he felt called upon to say in an- 
 swer to remarks contained in the opening address by the counsel for 
 the defence. He then went into a review of the testimony, and after 
 speaking about an hour, the Court took a recess from about 1 to 3 
 o'clock. 
 
 The Court again met. Mr. Gordon continued his argument before 
 the jury, and spoke until the hour (6 o'clock) of adjournment, 
 
 September 28, 1853. 
 
 The argument in this case, on the part of the defence, .was com- 
 menced this morning before the jury by Mr. Pearre: 
 
 He said that though his client was here among strangers, his char- 
 acter unknown to the jury, and the jury unknown to him, yet he felt 
 no apprehensions on that account. He was sure that the same hon- 
 orable sentiments that animated the breasts of the juries of Allegany, 
 beat in the hearts of the men of Washington County, and that the 
 avenues to their hearts were the same as to those among whom the 
 prisoner at the bar had been brought up. He knew that the very 
 fact that the prisoner had .thrown himself with generous confidence 
 upon the purity and integrity of a Washington County jury, would 
 lead them to extend to him more than ordinary sympathy, in the try- 
 ing position in which he now stood. The sentiment that "stranger 
 is a holy name," was one that would touch a chord that would Vi- 
 brate to the heart of every juror. 
 
 But, while the jury knew that the prisoner was satisfied that they 
 had given and would continue to give to the end, his case a fair and 
 impartial hearing, he desired it to be distinctly understood that it was 
 not by the prisoner's act that the case was not tried in Allegany, where 
 the trag^y occurred ; that he did not shun a trial among those who 
 knew him and knew the deceased, and knew the characters of each 
 of them, and of the witnesses on both sides ; that the Stat^ of Mary- 
 land and not the prisoner had removed the trial here. That inas- 
 much as the attorney for the State (Mr. Gordon) had seen fit to give 
 his version of the occurrences in Allegany, before its removal.fo this 
 
107 
 
 County, he would be indulged for noticing some errors into which he 
 had fallen, and stating some facts altogether omitted. Mr. Pearre 
 here went into a statement of facts, showing 
 
 1st. That the attorneys for the State had, in Allegany, endeavored 
 to establish the doctrine that a juror was a competent juror, who had 
 made up his mind that the prisoner was guilty, if he would say that 
 he had not come to that conclusion out of malice to the prisoner, and 
 to establish that doctrine, one of the Slate's counsel (Mr. May) came 
 to Allegany armed with a volume of New Jersey reports, from the 
 Library of Congress, to establish a doctrine that would put twelve 
 men, whose minds were made up against the prisoner, into the jury- 
 box as his judges. 
 
 2d. That with a view to prevent two jurors upon the regular panel 
 from serving upon the jury, the attorney for the State, the day before 
 the panelling of the jury commenced, had them summoned as wit- 
 nesses for the Slate, and when interrogated by the counsel for the 
 prisoner whether these jurors were really expected to be made wit- 
 nesses, would not upon their honors say they expected to examine 
 them as witnesses ; that when one of these jurors was called to the 
 book, he was objected to because he was summoned as a witness. — 
 The Court decided he was a competent juror though he might be ex- 
 pected to be a witness. He was then sworn on his voir dire, and 
 qualified himself as a juror. The Stale then objected to him for fa- 
 vor, and at its instance triors were appointed by the Court, and the 
 juror was declared competent, and sworn. 
 
 3rd. That the counsel for the prisoner warned the counsel for the 
 State, that if the case was removed to Washington County, there 
 would be no Judge to try it, but they still persisted in its removal, and 
 when we came to this Court in November term, then the counsel for 
 the State admitted, as we had predicted, that there would be no Judge 
 to try it. 
 
 But the counsel for the State made the affidavit, and the cause was 
 removed 
 
 Mr. Pearre then went fully into the law of this State as applicable 
 to this case, and contended that the several grades of homicide, as de- 
 fined in the English books, had not the same definitions in Maryland. 
 
 Murder in England was a general word, the punishment for which 
 was death in all cases. 
 
 That the people of Maryland, seeing the impropriety of awarding 
 the punishment to all sorts of cases, classed by the Judges in Eng- 
 land under the generarterm of murder, had as early as 1809 by leg- 
 islative enactment, divided the term "murder" into two different de- 
 grees, awarding different punishments; making deliberate, wilful and 
 premeditated killing, and killing w'hich occurs in the perpetralion of 
 certain specified felonies, murder of the first degree, and all other 
 kinds of killing, murder of the second degree, 
 
108 
 
 In England if a man was doing a felonious act, and accidenfcdly 
 killed anolher, it was punished by hanging. 
 
 This is not so in Maryland. He cited 4 Blackstone for the defin- 
 ition of. Marder in England — the killing of a reasonable creature, 
 with malice aforethought, express ox implied. 
 
 That malice was iJMp/ied in England incases where the killing 
 was accidental, if the slayer at the time was engaged in any felonious 
 act. That in Meryland nothing short of cases where there is express 
 malice can be murder in the first degree. 
 
 He further cited 4 Blackstone to show that express malice is only 
 shown by proof of " antecedent grudges," "former menaces," or a 
 fixed design to take away life. 
 
 He said the State in its opening had promised to prove threats, 
 and then analyzed the testimony to show it had signally (ailed. As 
 to former grudges, the only proof upon the subject, the testimony of 
 Mrs. Bruce, shew that in the mind of Sprigg alone was there any 
 former grudge, as he had declared to Mrs. Bruce the existence of 
 such a thing, and when she mentioned it to Swan, he declared he 
 knew nothing of any old grudge, or the reason for any : he had none 
 — Sprigg alone must have had it. 
 
 And that there was no proof to show any fixed intent or any intent 
 in Swan to take Sprigg's life. 
 
 He further contended that Swan's whole character, as testified to 
 by every witness upon the stand — civil, amiable, gentlemanly and po- 
 lite to all classes, was conclusive proof that he was not a man to con- 
 ceive or bear malice — that his entire conduct in the whole affair shew 
 how anxious he was to avoid difficulty with Sprigg — his declarations 
 made over and over again, that if they had met,on the ground under 
 the challenge given by Swan, he would draw Sprigg's fire and shoot 
 his gun into the air — that he would rather Sprigg would kill him than 
 he Sprigg. 
 
 That so far from the State proving malice in the part of Swan, the 
 whole evidence in the case negatived malice and shew it did not ex- 
 ist, and that in place of malice, Swan had the most kindly feelings. 
 
 The malice was on the part of Sprigg, for by the testimony of Ains- 
 worth, Kennedy and Barrell it is' proved that Sprigg at the time he 
 spit in Swan'-s face, intended, if Swan offered the slightest resistance 
 for the insult, to have cut him down with a bowie-knife with which 
 he had armed himself, and with which he declared he meant to kill 
 Swan if he raised his finger when he spit in his face — and that he 
 spit in his face with a view to make Swan resent it on the spot, that 
 he might" cut his heart out." 
 
 There being no evidence of express malice, there is no murder in 
 the first degree. 
 
 Then as to murder in the second degree. It might be admitted 
 that some of the cases where in England malice would be implied, 
 might be murder in the second degree. 
 
109 
 
 But malice cannot be implied, except in cases where there is a to- 
 tal absence of testimony as to intent and malice ; but where, as in this 
 case, there is strict positive testimony negating alt manner of malice, 
 it cannot be implied. There can be no implication where there is 
 express proof to the contrary. Implication is made in the absence of 
 proof. 
 
 We then come to manslaughter. What is manslaughter in Eng- 
 land is not manslaughter in Maryland. The punishment is totally 
 different. In Englaijd the punishment ranged from death down to the 
 smallest fine. In Maryland there is but one punishment for man- 
 slaughter — confinement in the Penitentiary. 
 
 Now in England if the husband slew him whom he caught in 
 adultery with his wife, it was manslaughter, and the Judges ordered 
 the punishment to be a slight burning ou the hand, on account of the 
 great provocation. 
 
 Is it law in Maryland that for such an offence a man must go to 
 the penitentiary? Surely not; otherwise the punishment here would 
 be more severe than in the blood-stained code of England. The re- 
 sult must therefore be that the term manslaughter as known and un- 
 derstood at the time of the passage of the act of 1809, was not un- 
 derstood or intended to include many acts deemed manslaughter in 
 England. 
 
 Who would dare tg say in the face of a Maryland jury that to kill 
 a man caught in the act of adultery with a wife, would subject a 
 man to imprisonment in the penitentiary; perhaps for ten years ? 
 
 We are told by the counsel on the part of the Stale, that the Penn- 
 sylvania, Virginia and New Jersey statutes are similar to our act of 
 1809, and that the decisions of the Courts in those States are binding 
 authority to guide a Maryland jury in construing our own act in re- 
 lation to what particular facts constitute one or the other grade of 
 homicide. 
 
 Upon an examination of these statutes^ they are totally dissimilar 
 from the Maryland acts. In those States manslaughter is divided into 
 voluntary and involuntary manslaughter, and the punishment gradua- 
 ted according to the class of manslaughter to which it belongs. In- 
 voluntary manslaughter is punished in some cases as a misdemeanor, 
 by a fine. Now in Maryland there is but one punishment for man- 
 slaughter, voluntary or involuntary^— confinement in the penitentiary. 
 Therefore it never was the intention of the Maryland Legislature to 
 punish so heavily that which in our sister States is punished so light- 
 ly. The conclusion is therefore irresistible-, that where they used the 
 term manslaughter in the Maryland act, it was not intended to em- 
 brace all such cases as in those States would be termed manslaughter. 
 The terms have a different meaning in the two States. 
 
 Mr. Pearre contended that there was a common law in Maryland, 
 and indeed throughout this entire Republic, which from the origin of 
 the government to the present day, has been growing, and which 
 
110 
 
 common law, so far as Maryland was concerned, has been created 
 and settled by the verdicts of juries. 
 
 Every lawyer in Maryland knows that even before the adoption 
 of the new constitution, that the juries were the judges of the law 
 as well as of the facts in criminal oases, and by innumerable cases it 
 had been settled as the common law of the State, that in certain ca- 
 ses where the party slain had done an irreparable injury to the slayer, 
 for which the laws of the land gave no redress, or could from the 
 very nature of the thing, give no redress, that .in such cases a man 
 may redress himself. 
 
 Mr. Pearre said he referred to such cases as these — where a party 
 seduces and commits adultery with another's wife — or seduces his 
 daughter or sister — or uses means purposely intended to degrade and 
 disgrace another, to take away his character among his fellow men, 
 and render him forever after a useless member of society. 
 
 The common law of a country is nothing more than the opinions 
 of Judges, delivered from time to time upon cases coming before them, 
 and where by law they are entitled to give opinions upon the facts 
 stated hypothetically. 
 
 In England, in criminal cases, the practice was very common for 
 the juries to find, in a short mode, certain facts, and the Court would 
 then declare the degree of the crime. Hut in this State, from its ear- 
 liest settlement, the Court never undertook to charge a jury, and in do- 
 ing so, lo define what would constitute one or the other degrees of 
 homicide. 
 
 The jury being judges of the law as well as of the fact, their ver- 
 dicts in such cases as those I have mentioned, have given a common 
 law of this State, applicable to all cases — have defined the law of 
 such cases, and exempted them from the penalties of the statute. 
 
 This common law has been established by the constant and unva- 
 rying opinions of juries, as evidenced by their verdicts, as rendered 
 in all cases coming within their principles ; and being, in criminal c&- 
 sea, judges of the law, their verdicts are the opinions of judges on the 
 cases decided by them, and such opinions have settled the law. To 
 discover what these opniions are, it is only necessary to know the 
 facts in the case and the verdict of the jury. 
 
 This was the common law of the State even before the act of 
 1809, and therefore it may be fairly presumed that that act was passed 
 with a full knowledge that such was the existing law of the State, 
 and that the act of 1809 would not be construed by the juries as ab- 
 rogating the common law. 
 
 For instance, could it be for one moment contended, that the Leg- 
 islature by the act of 1809 meant to inflict upon him who should slay 
 another caught in the act of adultery with his wife, so severe a pun- 
 ishment as confinement in the penitentiary, for, it might be, ten years; 
 and yet this offence is manslaughter in England, if the gentlemen who 
 represent the State are correct — that manslaughter in England is man- 
 
Ill 
 
 slaughter in Maryland — such must be the punishment here; though in 
 England the slayer would only have been burnt slightly in the hand. 
 
 In criminal cases it is most fit that the jury should be the judges of 
 the law as well as the fact, in a country where the juries are men of 
 intelligence, having and feeling a deep interest. in the good order and 
 peace of society. 
 
 They hear the facts of each case — they know the respective pen- 
 alties to be aiSxed to each grade of homicide or other offence, and 
 they render such a verdict as will impose upon the offender a pun- 
 ishment proportioned to the oflfence he has committed. 
 
 The learned counsel for the State declare to the jury that if A spits 
 in B's face and B slays him on the spot, thfit in England and IVfary- 
 land it would be manslaughter. Where is the man who is bold 
 enough to stand up before twelve spirited and high' minded men and 
 solemnly contend that such is the law of Maryland. No sir ; the 
 law of this State will never punish a man who slays him who with 
 malice aforethought attempts to degrade him. If a man attempts t& 
 chastise you or to punish you, it is nothing if done with an instru- 
 ment or. in a manner by which your, life could not be endangered; — 
 you would not be fully justified in taking his life; but when becomes 
 to spit in your face, with the fixed purpose to degrade and disgrace 
 you, your honor is your life, and that life you may defend. 
 
 We are told that if a father or a brother slays the seducer of his 
 daughter or sister, that this is murder by the common law of England 
 and by the law of Maryland. The cold-blooded reason assigned in 
 the Englishjaw-books is, that the killing is not done in self-defence, 
 or in defence of one's house or family — and th»t such provocation 
 cannot reduce the killing below the crime of murder. 
 
 Such is not the law of Maryland — such is not the law of any other 
 State in this Union where twelve free American citizens in a jury-box 
 have a chance to decide upon, the law. 
 
 See the case of Stump, who killed Hammond for the seduction of his 
 sister, and who killed him afterlyingin waitforhim. He was acquitted. 
 
 Look at the case of Myers, who killed Hoyt, in Richmond, for the 
 seduction of his wife, calmly, and for a long space after the knowl- 
 edge of the fact came to his ears. He was acquitted. 
 
 See the case of Mercer, who slew the seducer of his sister, in 
 Philadelphia. He was acquitted. 
 
 The case of Wise, in Missouri, who slew the seducer of his wife 
 — followed him to Palmyra, and killed him on the porch of the hotel. 
 He was acquitted. 
 
 There was also a similar case in Indiana. 
 
 Then there is the case of the young girl in Wisconsin, who was se- 
 duced by a man under promise of marriage, and who wrote to him 
 after she was enciente, time and again, and begged, him to repair the 
 injury he had done her by an honorable marriage* When she found 
 all her letters of no avail, and having no father or brother to 
 
112 
 
 avenge her wrongs, deliberately provided herself with a pistol, had 
 it loaded, went out upon the street, walked up behind her destroyer 
 while looking into a shop-window, and shot him dead. The jury 
 that tried her refused to convict her. 
 
 There are hundreds of similar cases all over the, country, which 
 have established a common law, administered by juries in such cases, 
 for the benefit of society. 
 
 A man may defend his body from an assault, and yet he may not 
 defend his honor. The casket that holds the jewel of his honor he 
 may defend, but the jewel itself he dare not. 
 
 This is not law in this land. 
 
 The argument on behalf of the defence was continued by Mr. 
 Spencer, who said: — 
 
 This is a prosecution for murder, a crime which is attributed to un- 
 mitigated malice — the most marked passion of the human heart. — 
 The first fact that strikes us as remarkable in such a case, is the gen- 
 erous, amiable and forbearing character of the accused — a- character 
 not only proved by his general reputation and deportment, with all 
 classes of men — but conspicuously shown by the facts and history 
 of this case. It is proved by the tender interest he discovered in the 
 sister, brother and other members of the family of the deceased. — 
 Young, generous, sentimental and brave, with the fragrance of the 
 highest sensibility around him — with continual anxiety to appease his 
 adversary, he seems never to have forgotten that " a soft answer tur- 
 neth away wrath," and never was betrayed into the expression of a 
 resentful thought. Hear his kind and palheli& words to Kennedy, 
 after he had committed the fatal act — " Oo and see the last of poor 
 Will." See the bitter tears of anquish streaming from his eyes.— 
 When a brave man weeps, terrible are the emotions of the soul. See 
 hira in the room with his step-mother and the little children, at the 
 hour of prayer, before they knew what he had done, kneeling with 
 the children at the bed-side, making himself a little child in the pres- 
 ence of his God, praying and weeping bitter tears of regret. With 
 a kind of involuntary inspiration, he was doing what G^d says is 
 needful to pardon — "Unless ye be as one of these little children ye 
 shall in no wise enter the kingdom of Heaven." Let no profane 
 voice violate the sanctity of those prayers and tears — ihey were fer 
 God — let God judge. But, gentlemen, it was not the spirit of a 
 murderer that brought Swan upon his knees, with those children, and 
 wrung the tears from his eyes. 
 
 Mr, Spencer here reviewed the testimony of Dr. Dougherty and 
 Mr. Willison, for the purpose of showing its inconsistent and irrecon- 
 cilable character, and as illustrative of the whole evidence on the 
 part of the State, and proceeded : 
 
 Let us HOW take up the incidents of this unhappy tragedy. We 
 begin at the ball-room. Who there was the aggrieved party ? ■ Sup- 
 pose Swan, in the jollity of the moment, did turn Sprigg's partner ? 
 
113 
 
 c!id so. trifling an act justify the violent ;ru^deiiess of Sprigg; his seiz- 
 ing. the person of Swan, jerking him violently around in the presence 
 of the company, and his rude, menacing nods, as testified .to by Mr* 
 (Mabaugh ? Sprigg said ^fiervv^rds to Kennedy that 'he should have 
 thought nothing of it if Syyan had npt considered it of sufficient conr 
 sequence to apologize to the ladies, and admitted that he was himself 
 the" offending party. Sprigg's act was an actual assault lipon Swan. 
 He seized him, jerked him around violently, and told him to get out 
 of the way ; and his looks and manner were so grossly iiispltuig that 
 Cl.abaugh was surprised Swan should bear it so humbly. Swan, 
 however, in. thp gentleness of his nature, apologised— he admitted ha, 
 was wrong. Could the most jealous spirit, uniufluenced by personal 
 malevolence, haVe demanded more ? Still Swan was willing to apol- 
 gi^e, but he, dared not approach Sprigg in his rage. Scqllay asks'him 
 to go to. Sprigg; Jie says he cannot, for Sprigg is angry with' him, 
 and he has already apologised twice.. Scollay goes then to Sprigg, 
 and tells hjm what Swan had said ; Sprjgg becomes more exasperat- 
 ed, ancT* swears he will either box Swan or Spit In his face; again 
 SooUay goes to Swan, and he says he cannot go to Sprigg to apolo- 
 gise, for he is informed that Sprigg has threatened to take his life. 
 Swan tells .Mrs. Sprigg, the wife of the cousin of the deceased, that 
 he could not go to Sprigg to apologise, for he was afraid he would 
 strike hiin — and to James Sprigg, another cousin, he said he could 
 not do it, for fear of a dlfficulij'. Swan could, at that time, no more 
 have approached the deceased than he could have approached a tiger. 
 The treatment he would have received is illustrated by the fact that, 
 when Scollay told Sprigg that Swan had apologised twice, he swore 
 hewould box him or spit in his face, and by the conduct of Sprigg 
 afterwards, at Cowton's Hotel, when Swan asked him to come out, 
 that he might explain fhe/J<>«/scnp/ to the printed apology of Sprigg,, 
 Spr.igg.said to himi "go outyyoti G — d d — d lying son of a bitch." 
 The language of this, man was alinost too viilgar for decent ears. 
 
 Sprigg's intoxication at the ball might have bsen some excuse for 
 his dempniac fury"; iiijt he brooded upon and nursed it, when he 
 should have repenlpd of his passion. He permits Friday to pass, 
 and on Saturday he seeks the man whom' he had; already'insuUed 
 and assaulted, and plpTere.] hini the grijssest" indignity that can be offer- 
 ed to man — an insult ien-fold more aggravating to a young man fresh 
 from an association with, all the chivalry of the Anjerican Army in 
 Mexico— ail indignity which subjects the object of it to universal 
 scorn, and contempt. , 
 
 This indignity was offered to an unarmed man — ^Sprigg himself be- 
 ing armed< as he expressed, it- to AinsWjOrth, "tpcut put Swanks heart 
 if he xaised his' hand." Swan, astounded and taken off his guard 
 by the suddenness of the attack, and the retreat of Sprigg so 
 quick, — according to the testimony of Mr.' Barrel!, — tha,t he couldn't, 
 strike without running after him. The instant impulse of Swan was 
 
 8 
 
114 
 
 to fight Sprigg- a duel. From the beginning to the end of this distres- 
 sing, drama, he scorned to have any advantage. He applies to Bar- 
 rell to act as his friend — afterwrards to Roman, Scollay, Kennedy and 
 Van Lear — they all declined, because they thought it not a case ior a 
 duel, and they were not willing to' incur the penalties of the act. — 
 Whilst he is talking to Roman, perhaps art hour after the spitting, 
 depairing of getting any one to take a challenge, they see Sprigg in 
 the street, near Dougherty's offic6. Swan starts in pursuit, having in 
 the meantime obtained his arms. Sprigg, who was so brave agaitist 
 an unarmed man, with his big bo|wie-fcnife (the largest the witness 
 ever saw) prepared to cut out Swan's heart, flies fpr refiige tO' the of- 
 fice. We are told the wicked flee when no man pursnelh ; but 
 here was a pursuer — and is was not only to fly, but to lock himself 
 in — to put himself under lock and key. Swan goes, to the door to 
 obtain admittance, but is excluded. Soon after Barrell goes to the 
 same place and finds the door locked. He is only admitted when 
 Sprigg is assured Swan is not there; i00lK 
 
 Balked in this ejBFort to wipe out his disgrace, the prisoner again in 
 the evening seeks out the deceased at the hotel,, and invites him to go 
 to the stahle or to No. 5, the largest room in the upper story of the 
 house, and fight it out — the deceased refused to go to the, stable, 
 but agreed to go to No. 5 ; he is afrdid, however, to gO- in advance^ 
 lest Swan should shoot him. He says "Re made the d — d rascal go 
 hefore." Swan, with a manly tread,, goes in advance. When they 
 got to the upper landmg, ipiear the door of No, 5, Spiigg's nerve gave. 
 Way; he feigns sentimentality, and is. as tender as a maid; ajjd he 
 whose habitual conversation vras of blood and cutting out hearts ; who 
 could not speak witliout oaths and imprecations, is melted to tears. — 
 He thinks of their old associations, and the intimacy of their fkmi- 
 lie3; he appeals to ^wan, and agrees to inake any amends an honora- 
 ble man could. He subdues by such a display of emotion, the re- 
 rentment of Swan, and he agrees to apologise for what took place in 
 the ball-room, if Sprigg would apologise for spitting in his face. 
 
 Mark now the art and treachery of this proceeding, which had 
 averted the danger of the .fight, and but Swan in a fStlse position. In 
 his next conversation with Dougherty, Sprigg tells him that Swan is 
 about making himself ridiculous by taking an apology under such cir- 
 cumstances, viz : fir^t by giving an apology as a condition of his get- 
 ting one for an act which honorable men say cannot be atoned fot . 
 by apologies. Sprigg was charmed at the success of his ai'ts, which 
 he believed would more effectually degr£^de the man he pursued with 
 such unrelenting ha,te. 
 
 But the prisoner, as soon as he was left to hjs, own reflections, sees 
 the absurdity of his own position. He knows that something more 
 was necessary to re-establish him in the respect of his friends. Ro- 
 man suggests to him the example of Ritchie and Pleasants, af Rich- 
 mond. He sends the challenge to meet in Perry's meadows, alone. 
 
115 
 
 and fight it out. This appears to have been a game that by no means 
 suited the disposition of the deceased. He told Barrell that " he did 
 not mean to fight with gun's and pistols." " jHe would take b tcher^ 
 Jcnives when he /ought, and would not run much risk." He always 
 had .special regard to his own safety. Though deceased is proved by 
 every witness, both for the State and defence, never to have had' a 
 thought of meeting the prisoner in the meadow, in the swelling style 
 of a bully he intimates in his publication that he was eager to meet 
 the prisoner there, and his onlj' objection to it was that the prisoner 
 had not named 6 o'clock in the morning, instead of 11 o'clock, as the 
 hour of meeting. ■ ; , 
 
 But the deceased thought it was necessary, in order to maintain his 
 character as a bully and fighting man, that he should explain his fail- 
 ure to meet th*e prisoner, and he afterwards invented the story about 
 the prisoner's wanting to' withdraw" the challenge, in an interview on 
 the Bank steps, on Sunday night. This invention was palpably an 
 afterfihougjit', and utterly false. If, however, it had been true^ it 
 would not have relieved him from the obligation to meet the prisoner ; 
 it would have increased it. He said he reftised to let the prisoner 
 withdraw the challenge ; the challenge was therefore not only subsist- 
 ing, but he had virtually accepted it-rand if the prisoner had not 
 gone to the ground, might have published him as a coward. But we 
 have the concurring statements of the prisoner and deceased both, as 
 to this affair, made at or about the time — one to Soollay by the pris- 
 oner — the other by deceased to Wood — correspondiiig in all their es- 
 sential features, and demonstrating that deceased's subsequent account 
 was a sheer fabrication. We have not only these,' but the testimony of 
 Barrell, that on the same Sunday night on which deceased said the 
 prisoner had desired to withdraw the challenge, at ll o'clock, he 
 talked with deceased on the subject — that he told him of the chal- 
 lenge, took it out and sho\fed it. to him, and said his objection to it 
 was as to the manner in which it was left at the Bar of the Hotel. — 
 Can any rational man believe that if such an interview with the pris"- 
 oner had taken place, as was described by deceased only a few minutes 
 before, he whose whole soul seems to have been occupied with but one 
 degire— ^wholly to disgrace the prisoner— would have forgotten' an oc- 
 currence which rendered the prisoner so trifling and ridiculous. But 
 we do iiot stop here. After the prisoner had returned from the mea- 
 dow, on Monaay, meeting James Sprig^, the cousin of deceased, he 
 told him "if he shoul? s'e Will) to teU him he had heeri o the mead- 
 ow, and as he did twt meet him, he supposed there was some mistake" 
 James Sprigg says ne did meet the deceased immediately after, and 
 told him what the iprisoner said. What was his answer ? Did he 
 then pretend that the prisoner had withdrawn the challengCj or that 
 ifwas understood they were not to meet? No such thing. He an- 
 swered " that Swan had sent him a iwte which .proved Mm either a 
 fool or a coward." He did not pretend that it was withdrawn, or 
 
116 
 
 intimate any thing of the sort. This is the evidence of James Sprigg, . 
 the State's witness, and cousin of deceased; and I ask, first, is it 
 ptobable. the prisoner would have sent such a message : and second,, 
 would deceased have made such a reply if the , challenge had been 
 AvithSrawn or abandorJed? No — the story was therefore a mere sub- 
 terfuge to cover the recreancy of a bully. 
 
 Prisoner heard; noimore of deceased that dayi He goes to Scol- 
 lay in the evening. He has lost every chance of wiping out his deep 
 degradation. He says : to ScoUay that " he is now ai his wit's end." 
 He cannot get an ordinary duel. He has made effort after effort for a 
 personal contest ; he cannot induce the man who wounded him so 
 deeply to meet him — what shall he do ? He tells ScoUay to go to the 
 deceased and ascertain "whether. -he intends to give him, any satisfcu:- 
 fiQti." Soollay says, " can it he settled amicably ? — prisoner says, "I 
 loin he satisfied with an v,nqualifited apohgyJ' ScoUay goes to 
 Dougherty's ; they go in search of Sprigg, and find him at Dr. Per- 
 ry's ; prisoner draws up an apology, which is modified by Mr. Semmes; 
 deceased says h§ will not sign it as long as a certain portion written 
 by the prison^ is retained; prisoner says he must sign that or none— 
 and takes out his watch and says to Dougbferty, "lUiless it is brought 
 back signed in one hour, 1 10111 walfe up the. stre^lj and Mr. Sp.igg 
 must defend himself." The apology is brought back s^aed in the 
 hour. 
 
 All this was done by the prisoner in the^ spirit of a brave and manly: 
 soldier. , But how with the deceased ? You will observe he was all 
 the time blaspheming ; uttering to Kennedy, Ainsworth. and others 
 the most horrid- epithets and imprecations ; swearing to cut out the 
 prisoner's heart, and showing the horrid bowierknife with which Ee 
 would do it. He takes tefugeunder lock; and key in the ofl&ce when 
 pursued by the prisoner ; when invited to No. 5 to fight it out, he 
 escapes under a fejgued Sentimentality. He bullies about the meet- 
 ing, at the meadow, and iprdfessSsto desire to meet at 6 o'clock instead 
 of 11, and at. last will not meet at all; and when the alternative is 
 presented of a street-fight, or signing the apology in an hoiir, it is 
 promptly signed. . , ' 
 
 But what was his. deportment then ? . The scene described by Dan- 
 iel Bruce must ihave takea place on this day after the apology was 
 si^ed ; it could: not have been on Saturday, for that was the day of 
 the spitting, and the scene at the hotel, when the prisoner invited the 
 deceased to No. 5; it could not have been on Sunday, for that was the 
 day of the challenge to the meadow ; it could notiiave been on Mon- 
 day, for that was the day for the meirting at the meadow, and in the' 
 evening Scollay a,nd Dougherty were negotiating the settlement. It 
 must therefore have been. on Tuesday,; after the signing of the apolo>-! 
 gy, and when the prisoner went out with so gratified' a feeling: — with 
 so frank, hone^Ji^d generous a sensibility to take ■ Sprigg's hand. — 
 Mark the perfidy of . the deceased in this interview. He says to the 
 
117 
 
 prisoner, '^ I owe you a thousand apologies-" but^s soon as his back 
 is turned lie resorts to his habitual oaths and epithets, and leaves 
 Bruce under the impression that his professions to Swan were not 
 sincere. On the next day, before the ink is fairly dry Upon the apol- 
 ogy, his soul seems to have been infused with greater gall and bit- 
 terness ; his fury seems to have increased from having been pent up 
 for a single day; he appears to have had a sense of a loss Of conse- 
 quence by the apology, and that an extraordinary effort was necessary 
 to restore his 'distinction as a bully. He goes in the oyster-houses 
 and drinking rooms and declares the pyisoner a, coward ; "Tie hadn't 
 •pluck to shoot a chi&hen.": At Donnelly's, in the presence of Wood, 
 Donnelly, Wineour and otbers, he asserts, " he signed the apology he- 
 cause Swan teas too big a coward to ask any other satis/action, and 
 to satis/// his (^Sprigg" s) fiiends." The apology W^s a mere gratuity, 
 proceeding from the magnanimity of deceased. This was kept up 
 from day to day in the presence of Kennedy, and in all the public 
 houses about town, as testified to by Ainsworth and others. ' 
 
 Swan in the meantime was acting with the reserve and dignity of 
 a gentleman. He indulged none but kind words towards the deceas- 
 ed. He was occupied with but one thought — a thought that springs 
 spontaneously -in the mind of every true soldier of his country — it 
 was *'to save his honor," as expressed by Kennedy. That honor had 
 been deeply wounded ji the story of his disgrace had gone abroad ; 
 •his friends had been induced by the representations of the deceased to 
 «corn and; despise him : they had actually-refused to speak to him. — 
 Hpw should he retrieve his character^ but by letting his friends at a 
 distance know that he had not been submissive under the gross indig- 
 nity thafcihad'been offered him? And how could he let- them know 
 it, but by sending . them a- copy of the apology,- and informing them 
 he had done what is expected of ^Soldiers in such cases ? Judge Per- 
 ry and others adtise him to send a copy of ithe apology to his'friends. 
 They are too numerous, and the trouble would be too great to copy 
 them by hand for each one. He has it printed in the form of a cir- 
 cular, on a letter sheet — ^onlj forty copies. It is necessary also that 
 his friends should know he had challenged Sprigg. ; How should he 
 do it?- Should he publish the challenge with th^ a,pology ? This 
 would have been more exceptionable -to Sprigg than the course that 
 was adopted. Should he get the statements of ScoUay andDougher- 
 ty and Judge Semmes., who were engaged in the affaii- ? This would 
 have been giving the matter an impbrtance that wo'uld probably have 
 produced another agitation, and would onlyhave been suitable for an 
 actual and full publication. But this was not the object of Swan. — 
 He was preparing a communication for his friends only;; not for the 
 public. And, remember, when ■ the deceased afterwards got one of 
 them, he had to send Dougherty to the prisonei' for it. liecovldnot 
 obtain one in the tdwn of Cumberland; so distant was :iti from the 
 mind of the .'prisoner to prejudice deceased. 
 
118 
 
 But the gentlemen on the other side say the prisoner was guilty of 
 a grievous sin in publishing the postscript. What was ;the post- 
 script ? That deceased had. written the apology in answer to the chal- 
 lenge. ' I have already shown the diflSculty d putting the circular in 
 any other shape, unless the prisoner had given mp the idea altogether 
 of letting his friends know he had challenged. Let us now inquire 
 whether, according to the common understanding of meti^ the post- 
 script was not, true — not only in spirit^, but in ■ fact. The ,■ challenge 
 wag dated the 24th of January by' mistake — it should have been the 
 25th. On the 2,7th, two days sifter, _ the aipology was received ; no 
 Communication between the parties being proved to have taken place 
 in the meantime. If a letter had been written on any ordinaty busi- 
 ness to any of the gentlemen of the Jury, and two days after he had 
 received another, relating to the same subject, would' he not have call- 
 ed it an answer, even though it had been procured by the agency of 
 others ?- ; This was ^probably the relation in which the prisoner viewed 
 it. But, it is said, it admitted of the construction that the apology 
 had been extorted through fear. - But it never occurred to the priso- 
 ner in that light: — and no man could havo been more deeply afflicted 
 than he, when it was so explained to him. He protested to Kennedy 
 that his only object was to put himself right, and ■ he had not the 
 least idea ofi calling Sprigg's courage in question. When Dougherty 
 called to get a copy of the circular, and spoke of the postscript^ he 
 offered to give him a letter explaining it, as Dougherty say's, to exoner- 
 ate him (D.) from blame j^rbut is evident from D.'s answer, to eocon- 
 erate Sprigg. D.'s answer was, "it is too late, for Sprigg has deter- 
 mined to publish." If the offer was to exonerate D., there was no 
 sense in his answer. But this was not all ; to exonerate and put de- 
 ceased right, the prisoner sent him a message by Kennedy; wrote 
 one letter to deceased which Kennedy would not suffer to be sent, be- - 
 cause, as he expressed it, "it was too truckling;" and afterwards 
 another, which was approved by Kennedy, in which, he requested a 
 friendly interview, and offered to explain. Whilst that letter was at 
 the Post Office, the prisoner met deceased on Sunday the Sth of Feb- 
 ruary, at Cowton's Hotel, and asked him in a friendly mailner to 
 come out, when he could have flo other object but to explain'the post- 
 script to the circular, and deceased repelled him -with a gross and vul- 
 gar violence that is scarcely human, " Go out, you O — d d^-d lying 
 son of a Utah," ■ < 
 
 Not only this, deceased knew the prisoner was willing to explain — 
 he told Semmes that the prisoner had approached him for the purpose, 
 " hut he had repelled Jthe d — d lying scoundrel." He also said that 
 he did not believe the prisoner had published the postscript of his 
 own motion, and that; " he thought he knew iJw d — d scoundrel who 
 told him to do it." But his will was formed as inexorable as fate, to 
 consign the, prisoner to everlasting disgrace, or to have the savage sat- 
 isfaction of cutting out his:d — d heart, over which idea he seemed to 
 
119 
 
 gloat wUt as k?en an appetite as a cannibal. He will publish him as 
 " a coward, a liar and a scoundrel •" he .will make all bonqrable. men 
 • despise him ; he will send it to his love, and poison the bosom in 
 which he (Swan) has garnered up his heart and all his h^^^J^t's dearest 
 treasures. ; The soul sickens in contemplating the cold, fierce and un- 
 relenting malevolence of a. man who could thug make up his mind, to 
 destroy one who was anxious to do him justice, and whose offence was 
 " not the result of his own feelings, but prompted by another. 
 
 Now it is that the deceased determined to have bloqd, or, the last 
 remnant (jf the prisoner's honorable name. So [bitter was his passion 
 and animosity, that, he would not even suffer ?tny oneto speak well of 
 Swan. He asked Stoddart if it was true that Davis, had saidthatthe 
 . prisoner had .actes^ like. a man, and ,if hes had, ',' he would slagh him 
 out of his boots." He arms hioigelf, for .the strife of death. The 
 State have attempted to' prove tiat he was not armed — they have tried 
 ,to9 much. ' Such an assumption is against the admissions of his own 
 card, and contradictory of the whole , history; of the case. The bow- 
 ie-knife and the revolyerj which, have never been heard of since his 
 death, were evidently clandestinely abstracted from his pocket. The 
 rogue ,wh(? overlooke4 the ram-rpd, left, irrefragible proof that the pis-, 
 tol was there.. He tells Kennedy of his unrelenting purpo'se to pub- 
 lish the prisoner; that, he is armed; that he, should go to the prisoner 
 and signify, to him that he expected the^aitaek, and was armed to meet 
 it. ; He does this every day up to the fatal act, He tells Worthing- 
 ton, not more than half an hour before his death, if the prisoner ap- 
 proaches him he will cut out his heart with his knife. Kennedy 
 meets the prisoner, and tells him what deceased had said. Now; what 
 occasion could there have been for the prisoner to send a message to 
 the deceased of' the intended attack, when deceased had sent him word 
 he expected it, and was armed to m^et him ?, :Men who wish to con- 
 demn. Swan may. say that chivalry would have prompted it; but un- 
 prejudiced minds will not go regard it, even though they should make 
 no allowance for the strong emotions which necessarily rendered the 
 r^eetioB of the prisoner ^t that moment incoherent. 
 
 At this juncture — the message of deceased having been received — 
 the publication actually in type, haying been seen by Swan's friends, 
 and communicated to him-r-Sprigg comes into the billiard jroom, and 
 takes a bullying, defiant attitude. Cramer was the only witness pre- 
 sent who W3.S not engaged in play, consequently the only one who had 
 an opportunity of seeing what was going om He only could see the 
 eeowling, defying looks; thei insulting, sneering aspect, of the counte- 
 nance; the menatiiAg glances. , They 'could only be seen by the pris- 
 oner himself, from time to time,, as he pa.ssed. around the table. No 
 man engaged in play could have seen them, if it had not been the re- 
 sult of accident. The testimony of Messrs. Thurston and Sprigg, I 
 consider as amounting to nothing. 
 
 Now was the time for the prisoner toact^ or never. He was taunt- 
 
120 
 
 ed for permitting Sprigg to escape at the spitting. No sitch occasion 
 as this had occurred, siiice that day. ' He had heenhaffled in every ef- 
 fort to get an honorable fight from Sprigg. He mnst submit to ever- 
 laisting degradation, or hunt the wolf where he could find him. No 
 bceasibn— nio circumstances, had occurred like these; to stir the 
 tempest of his soul, and swell an uncontrollable emotion, which over- 
 came the natural repugtiance of his heart for such a struggle. He 
 was stung like a ,wild beast in . the amphitheatre — pierced and goaded 
 by his tormentor— ^baffled at every turn. Would it not bave been 
 surprising, if in such an agony, he had not' struck ? From the testi- 
 mony of Dougherty, who seems to have so small an appteciation of 
 the sentiments of a brave heart, he and Sprigg, regarding Swan as a 
 coward, were amusing themselves, like vicious, wanton boys, with a 
 beetle or a grasshopper; pulling off its wings, and piercing it with 
 pins. But even a grasshopper may bite.' 
 
 Swan was no coward. He was gentle and forgiving. These senti- 
 ments cannot be appreciated by bullies; they always regard them as 
 evidence of cowardice. His unshrjnking spirit- in the bloody fights 
 of Cpntreras, Churubusco, Chapultepec and Molino del Eey establish- 
 ed his reputation among those who were eye-witnesses of his courage 
 —a reputation worthy of his .descent from General'Swan of the Rev- 
 olution. The' gentlfemen on the other side s£iy Swan should have had 
 recourse to the law' for his protection. But with the ardent feelings 
 of a soldier, what did he kno'w of the' law, except that it would more 
 fatally degrade him. Our eloquent friends, ' who prosecute with so 
 much zeal in this case, though they may now pCrstiade themselves 
 otherwise, I am persuaded would have pointed with contempt at Swan 
 if he had subinitted longer. 
 
 Let us now for a few moments consider the law of this case. I shall 
 assume that the facts have satisfied ybu that Swan believed, and had 
 good occasion to believe, that Sprfgg had resolved on his destruction. 
 T?hat in the hellish passion ; the persevering, unrelenting malignity of 
 Sprigg ; his arming, and his threats of cutting out Swan's heart, down 
 to one half hour beforehis death,' justified Twan in the opinion thatth« 
 only way of saving his own life was by taking the life of his persecu- 
 tor. If you agree me in this opinion, it was a case of excusable hom- 
 icide, and the prisoner must be acquitted. — Selfridge's trial, page 7, 
 1 East's crown law, 271, Wharton's crim. law, 258-59^0. 
 
 The learned gentlemen for the State have read you the stern prin- 
 ciples of the common law, and insist that you are bound by the inexo- 
 rable character of those principles. They would allow no distinction 
 between the poisoner and the man who kills from the influence of the 
 highest sentiments of the heart; between the midnight robber and the 
 man who slays the rayisher of bis 'wife or daughter. They speak to 
 you of the criminal code as if it were as inflexible as some iron mon- 
 arch of the middle ages, who with his grim visage and his savage, un- 
 relenting will, ordered the executioner to let fall the bloody axe when- 
 
121 
 
 ever hjs passions or his caprice migkt prompt, -without any respect for 
 
 virtuous sentiments; cr as if it were some unrelenting rock of the 
 
 " ocean, which consigned to intvitahle and indiscriminate fate, every soul 
 
 tossed there by the stormy passions of the world. Gentlemen forgpt 
 
 that these principles were written' in ages of dcspotitm, when allruks 
 
 were adapted for the oppression of the commonpeople. They applied 
 
 only to the vulgar and ignorant. They did not apply to gentlemen 
 
 ^ho could read and write; Even if convicted, a man whocculd write 
 
 "bis name could claim' the "benefit of clergy,'' and they dar^ not touch 
 
 a hair of his head. In this^day, when no distinctions are made be- 
 
 ■ tween the rich and the peer, -the learned and the unlearned; when we 
 
 all occupy the satne platform of equal rightg,-^no jury could be found 
 
 that' would not make the proper discrimination. ■ ' 
 
 But under the Constitution of ^Maryland you^are "j'ud es of both 
 law and fact." Gentleman say you must take the law as it is writ- 
 ten in the books ;' we say not so. The judges know what is written 
 in the books, and if it had been intendedto hold rigidly to that, the 
 Constitution would have given the exposition of the law to the judg- 
 es. It could have been given to the jury for no other purpose but to 
 divorce them from the harsh features ©f the common law, and enable 
 them to bi'ing the moral ielements into the decision of the cause. Ju- 
 ries, from the instincts of humanity, would do this before the Consti- 
 tution was adopted. Now ihey are relieved from every difficulty. — 
 If the principles of the common law are harsh andcruel — if they 
 are not adapted to the spirit of the age in which we live — it is your 
 right to modify and even change them. The system of laws under 
 which we now live, has been moulded by the judges. ■^Changes have 
 been made from time to time by the Courts, to suit the chahging 
 temper and condition of society. Almost the whole commercialcode 
 of this country and England, has been given us by Lord Mansfield. 
 It is the mind,'lhe morals,' the temper, the intellect, and the circum- 
 stances of a nation which make, modify and alter its system of juris- 
 prudence. The learned gentleman who will conclude this cause 
 may tell you that the judges have built up systems, and not pulled 
 down ; butl say to yoii, they could not have built up new principles 
 as applicable to any subject, without pulling down and abolishing the 
 old ones. It is as much ypui; right to modify- the princiiples in this 
 case, as it was the right of Lord- Mansfield to deny to the jury the 
 consideration of the question of malice in actions of libel, of which 
 we have already heard something in the progress of this case. It is 
 equally your right to say, that as malice is an'essential ingredient of 
 •murder', and' as the heart of the prisoner was as free from malice as 
 the heart of a child, he must be acquitted. You are as much judges 
 in this case as my Lord Mansfield ever was. 
 
 I am happy to say, gentlemen, that the juries of this country have 
 acted upon ray construction of their powers. They would not be 
 restricted in the performance of what hjiraanity told them was right. 
 
.122 
 
 Look at the case of ^ young Singleton Mercer, who followed day after 
 day, the seducer of his sister; watched for him on the streets ; fol- 
 lowed his carriage to a siteara'boat, watched his opportunity when the 
 person who was riding with him had got out, and shotHeberton, the 
 seducer, through the curtains of the carriage, and called for a fiddle 
 to dance over his corpse. This was acase of deliberate murder, ac- 
 cording to Lord Hale ; but Mercer was saved by the more beneficent 
 jury law of this country, which is nothing less ihanthelaw of hu- 
 manity, planted by God in the hearts of civilized men. See the case 
 of Stump, in this Stale^ who watched in the igarden for days to. slay 
 the seducer of his niece — and was acquitted by the jury under the 
 same law ; the case of Seiders, in , this County, , who shot the man 
 who had years before corrupted his wife ; of Myers, in Rictimond, 
 who shot his victim in his bed ; of the woman in Milwaukie, who fol- 
 lowed her betrayer to Cincinnati, and shot him deliberately in the 
 street. All these, according to the principles relied upon by our 
 learned friends for the State, were cases of wilful murder; but they prove 
 that those principles do not govern in the administration of the crimi- 
 nal law of this country. They were all ,acq.ultted of any crime what- 
 ever. If you will permit a hair of Swan's head to suffer, it will not 
 be for malice, for of this you must acquit him, but for a jealous and 
 anxious solicitude with regard to his honor. 
 
 Mr. Spencer here drew a contrast between the conduct of Sprigg 
 and Swan, during the pendency of theirquarrelj and cited a number of 
 instances in which Sprigg had made contradictory statements of the 
 same facts, to illustrate that no statement he had made was; to be re- 
 lied upon. He also. reviewed Sprjgg's publication, showing by ithe 
 evidence on both sides it was nearly all untrue. He then said : 
 
 We come now to the conditioti of Swan's raind at the lime of the 
 killing. Remember he was a young man — ardent, enlhnsiasiic. We 
 must not compare him with ourselves. He was proud of having as- 
 sisted to exalt the flag of hig country in so many glorious bali,les. — 
 He was of a military family; his grandfather was an, officer of the 
 Revolution ; one of that band of patriots to whom the country owes 
 so great a debt of gratitude. He had been taught, in his association 
 with the chivalry of the army, to value his honor vastly higher than 
 his life. He was insulted and spit upon; called a liar and a scoun- 
 drel; He had been baulked in every effort to meet his adversary in 
 an honorable way. His acquaintances looked upon him with con 
 tempt, and would not recognize him. Cast down, overwhelmed — 
 seeing the dreadful fiend of public scorn scowling upon him — is it 
 surprising that the mind of a young and sensitive man should have 
 given way ? A contiriual anxiety fretted him; "he thought the lit- 
 tle boys were spitting on him." He was haunted day and night by 
 the spectre of a never-dying scorn. Sprigg had planted a thorn in 
 his soul — it festered — ^the inflammation reached the heart — it spread 
 to the brain — the rational organs were implicated and rendered irreg- 
 
123 
 
 ular in their operation^-the moral senlimertts lost their regpralion ; — 
 when the ulcer broke it discharged itself upon the head of him wllo 
 had made the wound. • ■ 
 
 Mr. Spencer here, referred to Ray's Medical Jurisprudence, piages 
 27-28, for the purpose of showing that persons are frequently in- 
 sane upon a pari-iciilar subject, when they are in full possession of 
 ihsir faculties on all other subjects; and to 2 Greenleal's Evidencie, 
 section 372, to show that i( iSwan could not at the lime distinguish 
 between right and wiong with, regard to the act, he was: insane, and 
 not responsible ; and proceeded : 
 
 Let us examine the .evidence, and see if Swan comes under the 
 principle of these authorities. : ■ 
 
 See the while and livid aspect of -his face — his great agitation — his 
 tremulous hands and limbs — his tears. He vomits at the Jiistice's of- 
 fice, which the physicians- tell you frequently proceeds Irom a blow 
 on the head, and is a symptom of a pressure on the brain. He de- 
 clares to every one he is calm, whilst he is wild, perplexed and in- 
 coherent. He remembers his sentimental attachment to his step- 
 mother, a feeling perfectly incompatible with a murderer's malice, and 
 ■says he is goirig to tell liis ma. He wants every one to arrest him — 
 yet persists he has violated neither the law of God nor man. In his 
 innocence, at the Justice's office, he wishes -to go to sleep at Judge 
 Perry's or his own office, and is shocked when they tell him he has 
 logo to Jail. He laughs when they put the hobbles on hirn, and is 
 unconscious he has to meet the consequences of a crime. The 
 State's witnesses say he was more excited than any dn'e they ever 
 saw, who was not crazy. He prays and weeps with the children, 
 and in a few moments after, he asks for brandy and the Pickwick pa- 
 pers. ■ The next morning he sends for a clergyman, and asks him for 
 a sermon he preached a few days before. His conduct to Mr. Neill, 
 one of the State's witnesses, was altogether irrational. He boarded 
 in the same house with Swan ; Swan meets him and asks him to go 
 and dine with him ; he had forgotten they lived together, and Neill 
 reminds him of it ; he ihen says, come and set along side of me ; 
 Neill does so ; and Swan, ordinarily a sprightly, affable young man, 
 never saysi.a word to him dui-ing the dinner. He lays for hours up- 
 on the sofa at his step-mother's, day after day, not saying a word to a 
 human being. On the day of Sprigg's death, he sits at Roman's of- 
 fice all the mornmg, with his head over the back of the chair, taking 
 notice of no one. He writes to Hagerslown that Sprigg is goirig to 
 kill him, tells Roman the same thing, and asks him to draw up a deed 
 of trust, conveying all his property to Roman, to pay his debts, de- 
 claring he did not care what became of the residue of it. There is 
 not a gentleman on that j ury who would not consider one of his neigh- 
 bors crazyj who should make such an application to him ;— art appli- 
 cation to appoint a trustee to pay his debts because he was going to 
 killed^-the very thing the law would do, as soon as he should die. — 
 
124 
 
 -Swan Was a lawyer, and. in the exercise of his mental faculties, knew 
 it well. His indifference as to the residue of his property also show- 
 ed a wild despair, irreconcilable with mental discretion^ 
 
 With such wild, inconsistent, incoherent -anti irrational conduct, 
 who c«n doubt that at the time he had not the proper exercise of his 
 mind') with regard to the act he was committing ? — th^t the continual 
 anxiety and intense solicitude bad dethroned his reason? It was like 
 the case spoken of by Dt. McGill, in^his testimony, of a lady whose 
 virtuous reputation had been.tEjrnished by the- breath of scandal, and 
 who had no means of vindication. It preyed upon her peace, until 
 the .canker eat into her brain — her rational powers: were destroyed, 
 and she died a maniac. There is a case now in this town of a lady 
 who became insane from: intense anxiety in, nursing for two weeks a 
 -favorite child ; the Ifender cords of the heart and mind giving way 
 under the intensity of care and anxiety. Billingham, who killed the 
 -Hon. Spencer Percival, a distinguished member of the British Cabi- 
 -net, became deranged; by anxiety and disappoiiitment at the refusal 
 of a claim he had against the governnoient, and imagined that by-kill- 
 ing the Minister he would secure his demands. This goes: much be- 
 yond our ease, but the writers upon medical jurisprndence say it was 
 a clear case of insanity. Such cases are continually occurring. The 
 gentlemen on the other side tell us they must, proceed from delusion. 
 They have all proceeded from stern, heart-breaking realities. 
 
 But what do the medical gentlemen say in this case? .!Dr. McGill, 
 a physician of great experience, says he heard the;ev-idence, and con- 
 -eiders that " Swan was laboring under partial insanUy—tbat he 
 could not distinguish betiveen right .and wrong as to'thitt actJ' — 
 Scoliay says, ''he did not consider- his mind in a proper state." * * 
 "tie did not know at the time he was doing a thing: that was 
 wrong; He was unable to distinguish between right and.wrong'^ 
 »r-rand they both say, "any one thing, acting intensely upon tJie 
 mind continually is apt to dethrone it.'^ 
 
 I have observed the name of Dr. Frederick Dorsey, an old and dis- 
 tinguished-physician, of almost unprecedented experience, whose 
 practice has gone, through better than half a century, among the wit- 
 nesses summoned by the State, upon the"; question of insanity. He 
 washere in attendance, but not examined. Wihatare we to conclude? 
 That his testimony would have corroborated the testimony of the 
 medical gentlemen sworn on the pact of the defence.- , And how could 
 it have, been .otherwise ? The experiencci not only of every doctor 
 corroborates it, hut of every man., How many cases bf.insanity are 
 continually occurring, the results of misfortune and distress. One 
 man becomes insane from the loss of fortune — another from the 
 treachery of friends, and the slights of the world — another from the 
 disgrace and dishonor of his wife or children — and another because 
 the unsparing hand of death, has taken away the consolation of his 
 life. Some -go to the mad-house, others, sometimes after dreadful 
 
125 
 
 deed^ of violence, will resort to suicide. These are the lamentable 
 illustrations of the frail texture of man's moral and intelleclual nature. 
 The pressure is too great to be borne-^the temple of' the mind is 
 crushed and broken. All such persons if relieved might' be restored ; 
 so it is with Swan. You can conceive no case in which a greater men- 
 tal anquish was suffered than in bis case. 
 
 Before I conclude, gentlemen, allow me to say a fewwords in ref- 
 erence to the present position' and history of this case. The case 
 originated in AUegaiiy County, and is now being tried in Washington. 
 Who moved it? The State. Swan has been willing and anxious to 
 submit the case to a jury of the County in which both he and the de- ■ 
 ceased were born, and have always lived. But the State has said, 
 that community had too much 'partiality for Swan, sindhave moved 
 the case here. 
 
 This, gentlemen, in my judgment, ought not to have been , il is not 
 consistent with the beneficence of a just government ; and that it 
 should be allowed, I regard as a stain upon the Constitution of the 
 State. You very well remember that when this Country was a Col- 
 ony of Great Britain, it whs the habit of the British Government to 
 carry our people to England, to be tried by strangei-s, and this was 
 one of the grievances set forth prominently in the Declaration of In- 
 dependence. If it was wrong then, to take men among strangei's to 
 be tried, it is. wrong now ; what was despotic in the English Govern- • 
 ment, is equally despotic' in our own. 
 
 The jury trial, when first established, was intended to secure good 
 and faiihful men of the vicinage, who were supposed to know some- 
 thingof the parties— of their past lives— of the nature oHlhe transac- 
 tion — and of the witnesses, and were therefore thought niofe capable 
 of rendering a just verdict. That a man should be permitted- to re- 
 move his case away from the prejudices of his enemies; is just and 
 merciful ; but that the Slate should assume to move a case because 
 the community love the accused too well, is -depriving him of the ben- 
 efits of agood name and a virtuous life, and is nothing less than per- 
 secution and tyranny. 
 
 Does the State attempt to justify itself upon the- ground of the un- 
 fair sumraonins of .th€ jury ? The jurors are summoned by its own 
 officer; and if he be treacherous to the interests of the State, let the 
 law be passed to punish him ;, and let not the Stat& justify so great 
 an abomination, as to deprive a- man of the benefits of an honest life' 
 and a kind heart, upon the ground that it is too feeble to keep its own 
 officers under regulation. . 
 
 This case originated nearly two years ago. During all the time 
 Swan has beenofliering himself for triaL He was ready in Allegany 
 at the first term of Court. He has been ready here at every suc- 
 ceeding Court; The order of things has been reversed ; Swan has 
 all the time been pursuing the law 5 the law commonly pursues crim- 
 inals. The law, or the officers of the law, have been pulling back, 
 
126 
 
 and procrastinating, and have been endeavoriug to strengthen their 
 hands, in order to striiie poor Swan the more fatally. They have 
 gone to the Legislature to procure acts to operate on his case ; and 
 during the pendency, of these proceedings, the wliole course of the. 
 criminal, law has beeji sought to be changed-. An attempt has eyen 
 been made to give the State a right of peremptory challenge — a. thing 
 which' would not have been borne in the days of the greatest despo- 
 tism in England. During all this time — the State having dragged 
 Swan from those who knew and respected him, and who 
 knew ^e deceased, and the witnesses, for trial among strangers — 
 every delay has been tortured into an occasion of deeper prejudice 
 againsihim. He was expected to consent to every step in this course 
 of despotism. Whatever the law could not do ofitself, they expect- 
 ed hira to agree should be done. There was scarcely anything they 
 did not seem to expect him to consent to, short of building a gallows 
 to hang himself. 
 
 If there was any difficulty in, the case, gentlemen, it was occasion- 
 ed by the Stale's officers. They ought to have known what was 
 lawful, and ilis hardly expected, even in civil cases, that men should 
 agree to illegal proceedings agsfinst themselves. As to the special 
 appointment, by the State, of the able and eloquent prosecutor in this 
 case. I have nothing to say, further, than that poor Swan has to suf- 
 fer disadvantages, novel and unprecedented in this portion of Mary- 
 land. The distinguished gentleman who comes here tb assist the 
 prosecutors for this County and Allegany, and the power that sent 
 him here, are the best judges of their own acts — I will not attempt to 
 criticise them. 
 
 But I do think Swan has a substantial grievance to complain of, 
 under a Constitution which guarantees to every' man a speedy trial, 
 that he should have been kept for twenty months under the mark of a 
 murderer; deprived of those years of his' life, when men are com- 
 monly laying the foundations of future comfort. 
 
 I should entertain no fears of this case, gentlemen, upon a fair con- 
 sideration of the facts — for you are men of fair, impartial and die- 
 criminating tninds — but it would be affectation for me to say I do not 
 fear the eloquence of the-gentlemen who has the great advantage of 
 closing this case ; I know his ability to "make the worse appear the 
 better reason;" I know the winning powers of his address ; but[ 
 trust to your sound judgment and virtue to resis^his fascination, 
 is as dangerous as " the lips Of the strange woman ; sweeter than 
 the honeycomb, but the end thereof is bitter as wormwood, for it 
 leadeth unto death." ' , 
 
 What could the State gain, or the friends of Sprigg gain, if yoit 
 should make another victim ? What has society to gain by consign- 
 ing to the gallows, or penitentiary, a man of so kind and inoffensive 
 a character as Swan 1 Is it the mere vengeance of the law that would 
 punish a man thai never had a drop of malice in heart ? His broth- 
 
127 
 
 ere and sisters have all fallen around him during the last few years — 
 he alone remains ; and is justice so fierce that it would briiiu; to an 
 ignominious grave the last solitary scion of that glorious stock of the 
 Revolution. 
 
 Gentlemen I say again, if you permit a hair of his head to suffer, 
 he will be a victim to the malice of his enemy, and to his chivalrous 
 regard for his own honor. 
 
 September 29, 1853. 
 
 The argument on behalf of the defence was continued. 
 
 Mr. Thomas expressed the deep feeling with which he came to a 
 review of the case and spoke of the doubtful propriety of taking human 
 life, either legally or morally ; he deprecated the idea of prejudice' as 
 between the trial of a rich and a poor man, which his opponents had 
 sought to create, and declared his unfortunate client as without the 
 means of adequately compensating his counsel ; he' referred to a let- 
 ter of General Washington, to show that his grandfather. Gen. Jolin 
 Swan, served as ah officer' in the- Revolutionary Army, and adverted 
 to his client's brave acts through all the battles of the Valley of 
 Mexico; he regarded the train of circumstances to which Swan was 
 subjected, dilring this affair, as inevitably calculated to derange, un- 
 settle, prevent, and so to subvert reason, as to give his client the mer- 
 ciful provisions of the law. He held it to be due to himself to say 
 that he regarded the trial of this cause as before a tribunal not com- 
 petent to try it ; and referred to the circumstances attending the com- 
 mencement, theselection of judges, removal, and present trial, in expla- 
 nation of his opinion. He reviewed the testimony with a view to 
 rid the case of such of it as he regarded irrelevant — in showing its 
 discrepancies as against his client — and proving hi* whole course as 
 manifesting a sole desire to sustain his honor and his fame against the 
 machinations of ill-advised opponents ; this portion of his speech 
 was followed by a reference to the law and authorities bearing up- 
 on the matters ait issue. In rfegard to the plea of partial insan- 
 ity, or monomania, he cited several cases in which he had been 
 professionally engaged, viz^ A man addicted to appropriating hor- 
 ses belonging to others to his own use; another, .who, 'under 
 certain opinions of a teligious character, held himself justified in 
 taking a second wife, whitst a former one, with a family, was living ; 
 and of , others in disposing of their property under strange fan- 
 cies ; all of whom were sane on other subjects except the one 
 specially engrossing their mind, and all of whom had been acquitted 
 of the special charges upon which they were arraigned. To main- 
 tain his position be read authorities and law. He arranged the train 
 of incidents in )he affair, to Exhibit the force of the provocation, ulti- 
 mately leading to the cor»h>ission of the fatal deed, in such a graphic 
 style, and flung info the argument so much of pathos and feeling as 
 to give the most decided proof of his having touched a sympiithefi® 
 chord in the breast of many of those who heard him^ 
 
128 
 
 Mr. Thomas having eoncludedj after speaking nearly four/ hours, the 
 Court took a recess. 
 
 Mr. Price, upon the re-assembling of the Court, followed on the 
 same side. 
 
 He said that the jury would do him thejustice tosay that his opening 
 statement was no exaggeration of the truth of the prisoner's! case, bu> 
 had been fully and even abundantly supported by the evidence. — . , 
 That if the case iiad been permitteti to take the ordinary course of 
 criminal trials, if no extra efforts had been deemed necessary to con- 
 vict him, Robert: Swan would have been tried and, acquitted eighteen 
 months ago. It would not,: he hoped, be de&ined out of place if he 
 said further, that knowing, as be did, that the prisoner's ca^e was one 
 which neither the prosecution nor the public had ever, dreamed -of, he 
 had expected that when that case came to be laid before the jury in 
 all its power, the State would without a word surrender this prose- 
 cution and submit to a verdict of not guilty. But after the vigorous 
 attempt of' the prosecution to sliut out the whole pfthe prisoner's de- 
 fence and allow him no hearing at all, not even the poor privilege ot 
 moving his hand in defence of his life, he knew that every inch of 
 groundwas to be contested, and the, case pushed with a sternness 
 never witnessed, in Western Maryland before.' 
 
 Mr. Price said thai: it gave him no pleasure to bring into this dis- , 
 cussion the character of the deceased, and if he shooild be compelled , 
 in his defence of his client to say things which, must give pain to 
 many an aching heart, it was because Ire felt compelled to do it. — 
 One of the learned Counsel for the Slate had spent a considerable 
 time in endeavoring to prove-that the prisoner was both a liar and a 
 coward, and harshness and vigor on the one side must lead to harsh- , 
 ness on the other. God knows, said he, how willingly he would 
 avoid an exposure which must give pain to his sorrowing mother, 
 whose acquaintance in early life, he often remembered with pleasure, 
 —to his sister, one of the loveliest of her sex ; but he had no choice. 
 May God comfort 'them in their prolonged afil,iction and give them 
 that consolation which the world cannot give. This is. all, however, 
 he could say.. His path of duty led him far away from all their sym- 
 pathies and affections, and that path he must pursue. 
 
 He next called the attention of the jury to the case made, by the 
 State. What was it? The, prosecution first proved the killing, and, 
 next proved the intention to kill, and then stopped,, That's enough, , 
 said the learned Counsel. That was murder of the first degree, and 
 the jury had no choice but to convipt tt^e.- prisoner of that high and* 
 heinous offence. The apt of the prisoner by which the deceased 
 came to his death was the whole case; we were told; and the .qir-, 
 cumstances of provocation and outrage out of w!iich> that act grew, 
 we were gravely informed had nothing to do wi^h- the case;this jury 
 were to try. , . 
 
 But the case, thus proved by the State, was never denied; by the 
 
129 
 
 defence. They did not come here to controvert the fact of either 
 the killing, or the intention to kill. They admitted them both. The 
 case therefore proved by the State, and the facts and circumstances 
 proved by the prisoner as constituting his defence, stood well together. 
 They might both.:be true, and a verdict of not guilty,; be in no wise 
 Intionsistent with the Whole case relied upon by the prosecution. 
 
 To the case relied upon in chief by the State,, the prosecution in- 
 trouucedi, in the. form of rebutting testimony, a sort of supplement to 
 that case— consisting of the declarations and admissions o'f the pris- 
 oner, both: at the time of the act and subsequent to it, from which a 
 character Was sought .to be given to the actrenderihgit murder in the 
 first degree. It was true that when acts were unknown, the admis- 
 sions of the accused were received as evidence to prove them, but 
 when' you had, as in this case, all the; facts and circumstances of this 
 case distinctly proved by Witness after witness, coveriilga period of 
 more than twoi weeks ; when the.piisoner had passed under the 
 eye of the jury from the beginning of this unhappy affair to the close 
 of it, the testimony bein^ f\ill to overflowing upon every point and 
 tiirn in the case, what did they want with the declaration of the prisoner? 
 Swan had said he was calm and cool, therefore he must have been 
 calm and cool, no jpatter how the feet may have been, upon the tes- 
 timony of those; who- witnessed the act^ and gave to the jury in terms 
 which could not be missippreliended the real state of his mind on the 
 occasion referred to. 
 
 Mr. Price next proceeded to comment upon the case rriade by the 
 evidence for the prisoner. Mr. P. said he would begin with one fact. 
 The deceased spit in the prisoners's face ! He did it without cause 
 or provocation of any kind— the little occurrence in the ball room 
 being all a pretence. The deceased admitted that he was moved to 
 conimit the outrage by an oldlgradge;^ which the prisoner had never 
 heard of before. He spit in the prisoner's face and armed himself for 
 the occasion,' that if Swan moved his hand towards resenting it,, he 
 might butcher him on thfi spot. 
 
 Where did we find the deceased next? Iia a room^ with Swan 
 on the outside endeavoring to get inland. himself in the inside with 
 the door locked to keepihiiiijaut. . After Swaa had left the spot, and 
 Barrell came to the door and deniaWed entrance, the deceased with 
 cautious circBiHspection caJled through the key-hole to know who 
 was there, aiidifany one was with him ; and upon being fully satis- 
 fied there was no dangetyunlocked the door, adiriitted Barrell and im- 
 mediately locked* it again. 
 
 Where did we find him next ! At Cowton'iS hotel; onth« evenitog 
 of the same Way. Mr. Price here read fronr the evidence Swan's 
 statement to Dr.Scollay, and also Sprig^'s statement to Wood! of the. 
 occurrence alluded to. The jury had, therefore, both Swan's story 
 and Sgrigg's story, and thej" both agreed in every particular. Now 
 what was the transaction ? Swsin had gone there in quest of Sprigg. 
 
 9 
 
130 
 
 Opening the door of the bar-room, he requested Sprigs to come out, 
 that he wished to speak with him. As Sprijrg went out of the door 
 he drew his revolver, at which Swan raised his hand and said, not in 
 this place. He told him that the indignity put upon him was too 
 grievous to be borne, that he could not live under rt, and that it must 
 be settled. At first proposed that they should go ! together to the 
 stable, and as each were armed, fight it out there. This Sprigg :de- 
 clined. Swan next invited him to go up stairs to No. 5, a large room 
 in the hotel, lock the door and, selUe it there. Sprigg objected that 
 in going up stairs Swan might take some advantage of him. Swan 
 said if such were his apprehensions he would go first, and he led the 
 way. Here was an issue tendered on the one side<and accepted on 
 the other, well calculated to put a man's- bravery to the test. It was 
 to go by themselves into a room, and after locking out all the world, 
 then join in deadly conflict, the result of which must be that the 
 mangled corps of one or the other, it might be of -each, would be left 
 on the floor to be taken thence only to be borne to the grave. Swan 
 marched ahead with as firm a step as he did in storming the hill of 
 Chapultepec. Sprigg followed as far as the landing and then stopped 
 to'cslll a parley. He spoke of the friendship which had always ex- 
 isted between their families — the first time perhaps he ever spoke 
 upon such a subjebt. Mentioned his love for Robert's deceased 
 brother, John Swan, whom he had spoken of in disparaging terms to 
 Ainsworth. The tears came to his eyes, and yet he told Wood that 
 Swan acted like a baby. He adtnitted the enormity of the outrage 
 and promised to apologize. Swan was disarmed, as he always was 
 by a soft word. The tvvo young men set down upon the steps and 
 talked the matter over, but, as subsequent events showed, nothing 
 was definitely settled. ' 
 
 Mr. P. then referred to the proposed meeting in Yirginia, and of 
 Sprigg's diflerent statements and prevarications in regard to it ; also 
 of the apology, and the manner it was brought aboutti;''. of Sprigg's 
 unwillingness to sign it, until Swan took his stand and! gave him one 
 hour to determine what to do ; and of the paper being brought to him 
 with Sprigg's name to it within the hour. 
 
 Mr. P. then spoke of the publication of this apology, with the at- 
 tendant circumstances, and showed by a detailed reference to the evi- 
 dence, that the publication of the apology; with the note appended, 
 was not the real cause of offence to Sprigg, that it was not published 
 with any view of exhibiting Sprigg to disadvantage, and in point of 
 fact, was not published at all. He showed that Sprigg was in the 
 habit of denouiicin^ Swan as well before as after the publication, in 
 public as well'ais priviitte places, as a liar and a coward. He had been 
 warned, frequently warned, that Swan was no coward and would 
 certainly shoot him. The only efleot of the publication was to give 
 him some sort of pretext for what he determined to do: at all events. 
 
 Mr. P. then spoke of Sprigg's publication, and referred to the evi- 
 
131 
 
 dence of Messrs. Kennedy, Semmes and MoKaig, showing his de- 
 termination to make the publication, right or wrong. He referred 
 with emphasis to the message sent by Sprigg on the day of his 
 death, through Mr. Kennedy, informing Swan that the publication 
 denouncing him as a liar, coward and scoundrel was then in the 
 press and would appear the next day, and that he, Spriggi was armed. 
 Mr. P. maintained that all the circumstances gave to this message the 
 character of a defiance, and an invitation to a fight, especially when it 
 was considered that it was a part of the same message, that the paper 
 containing the publication was to be sent .to Hagerstown, where Swan 
 would least like it to go. 
 
 He next referred to the statement which first appeared in the news- 
 papers, and again in Court, that the prisoner had sought out and shot 
 down an unarmed and defenceless man. Swan, he said, had expect- 
 ed, and had every reason to expect, that whenever he met Sprigg it 
 would be to encounter a man, with arms in his hand and a determin- 
 ation in his heart to fight to. the last extremity. The circumstances 
 attending the last awful scene, as proved by the State's witnesses, 
 abundantly prove this; according to Somercamp, he held up his gun 
 after shooting Spi:igg, and declared that he had more arms about him 
 for other emereencies. Cresswell swore that as soon as he fired his 
 gun he drew a revolver, and immediately returned it. These facts 
 proved the case. If Swan's expectation had been to shoot an un- 
 armed man, a double barreled gun was sufficient ; but as he had ex- 
 pected a fight in which the chances of escape were not greater on his 
 side than the other, he provided himself with other arms for other 
 * contingencies. And why, asked Mr. P., did he draw his revolver 
 after firing his gan ? "The question could only be answered in one 
 way — that not seeing, owing to the smoke of his gun, the effect of the 
 last fire, he drew his revolver to continue the fight if his adversary 
 should turn upon hira. But immediately after seeing Sprigg on the 
 floor, he returned his revolver. Again on that very morning Sprigg 
 sent him word he was armed. Wood and Wincour had both inform • 
 ed hioi of Sprigg's threats, and warned him to be on his guard. On 
 that morning, also, he applied to Mr. Roman to prepare a deed of trust 
 providing for the sale of his property and payment of his debts, de- 
 claring that he eared not what became of the surplus, it being evident 
 he was looking to the event of his sudden .death. Dr. Scollay told 
 him there was no alternative under Heaven but to fight. In his let- 
 ter to his female friend in Hagerstown,he stated that he had received 
 certain information of Sprigg's inlention to shoot hitii, alluded to the 
 probability of his sudden death, and concluded with a request that the 
 letter should be burnt immediately. We know, moreover, tha^Sprigg 
 was armed, and it was not the least mysterious circumstance in the 
 ease, that these arms had suddenly disappeared after Sprigg's death, 
 and had never been seen to the present hour. The ramrod in his 
 pocket, however, like the track in the sand, showed pretty distinctly 
 
132 
 
 whence they had been-" taken from, when- they were concealed. 
 
 In reterence to the law Mr. P. said, his colleagues had ably ex- 
 plained the law of the case according to our views of it, and he wish- 
 ed to be understood aa-endOrsing all they had said upon that subject. 
 He, however, had some opinions of his own upon the legal branch of 
 the argument, which were very simple — a child might uhdefstand 
 them. You sometimes find in society a man whose violent passions 
 and vindictive feelings render hira dangerous, and you therefore strive 
 to avoid him. But do what you will, he fastens a quarrel upon you . 
 Without offence or provocation of any kind, he spits in your face, and 
 is armed at the time to butcher you on the spot if you ijut raise your 
 hand. What are you to do ? You procure arms, go in immediate 
 pursuit of him, drive him into the nearest house, where he locks him- 
 self up. You afterwards compel him, against his \vill,i to give you 
 an apology of your own dictation, or in the terms recommended by a 
 mutual friend. The next moment he disclaims it, and denounces you 
 in all public places as. a liar and coward. What are yoii-to do with 
 such a man ? ■ If you appeal to the law, you are disgraced. You 
 knowthat men would despise you, and women treat you with scorn. 
 The law therefore affords you iio protection. You cannot, you 
 dare not, appeal to it. He again asked, what are you to"do? 
 
 Gentlemen of the jury, nations go to war upon the most trivial pre- 
 tences. Hostile armies encounter each other and the earth drinks 
 the warm blood of numbers almost without number. Widows and 
 orphans are made by thousands and tens of thousands, in a day — an 
 hour. And yet bonfires blaze on- a hundred hills to hail the vic- 
 tory. This is public war. There is also a private ri^'t of war. — 
 When God put man into the world, he gave Kim the tight of self-pro- 
 tection, and human laws have not abrogated that right, except in 
 so far as human -laws: are competent to piroyide a protec- 
 tion co-extensive with that right. Protection by the law and obedi- 
 ence to the laWj are reciprocal, and concurrent as duties and rights. — 
 They exist in conjunction, or tbey do nai exist at all. If, the law 
 cannot p;"otect you, what right has the law to punish you ? No man 
 is bound to be treated like a dog. ' He next posts you as a coward 
 and a liar, and sends you word that he is well armed and ready for 
 you. Your friends warn you of your danger. Emboldened by 
 by your long forbearance, you feel that your life is no longer safe. — 
 The law can afford no redress, and you are thrown uponthe natural 
 right alluded to. You have but one course, and you would be a 
 craven if you did not pursue it promptly. Gentlemen of the ju- 
 ry, if an unchained tiger is- upon your track, are you to sit un- 
 til he springs upon your back and his claws are tearing your limbs 
 asunder? What are you to do, but shoot him? There is no 
 help for it., Such is the advice be would give his own son ; 
 and he would ask the blessing of Heaven upon the advice. Yom are 
 not bound to see the fruit of your own loins a dishonored thing, fit 
 
133 
 
 only to be spit upon, or dragged in the mud. Public meetings may 
 assemble in the dark, to arraign these principles ; the press may issue 
 its extras, denouncing them to the world ; yet he claimed them as his 
 pripciples still, and should not cease to avow them before the face of 
 the sun in Heaven. He got them from a source above all human 
 law ; and sanctioned, as he believed them to be, by the seal of God 
 himself, let the laws and the statutes of man be silent before them. 
 
 Mr. Price then examihed the evidence in regard to the prisoner's 
 declarations, previous to, at the lime of, and subsequent to the act of 
 killing, and insisted that they neither made a fact, nor altered a fact,* 
 proved in this case — that they amounted to nothing. And in conclu- 
 sion, Mr. P. spoke as follows: 
 
 Gentlemen of the jury, you have heard of the distinguished brav- 
 ery of the prisoner in the great battles of Mexico, but it was after he 
 returned homfi, ashejiadwell hoped, to the enjoyment of the blessings 
 of peace, and the endearments of home, that trials were in store for 
 him, better fitted to test his manhood, than the terrors of war in their 
 most appalling realities. Forced into a quarrel for which he had no 
 taste ; striving to escape from it, but no means of escape allowed him. 
 Pursued, exasperated beyond all human endurance, and at last im- 
 pelled, against every instinct of his nature, by indignity and outrage, 
 to the shedding of blood, of which no man had ever felt a deeper hor- 
 ror. Thus escaping from, one great trouble, it was only to find him- 
 self the victim of a varied but more prolonged persecution. The 
 public press, thundering its anathemas at his head, and holding him 
 up to universal execration, as a murderer and a felon. Avoided, 
 shunned as a moral pestilence, by the virtuous and good everywhere. 
 His trial removed by the State upon the simple affidavit of a prose- ' 
 cuting attorney, and then delayed beyond all reason. A super-serv- 
 iceable Governor putting his hand into the public treasury, and em- 
 ploying Counsel from abroad, to strengthen the arm of public justice, 
 and allow him uo mercy. Waiting and waiting, from time to lime, to 
 obtain a hearing. His witnesses, after each postponement by the 
 State, scattering over the face of all the earth, to be collected together 
 at the next term, at great trouble and greater cost, only to be dismissed 
 and scattered again. -His little patrimony wasted by fees to Counsel 
 and preparations for his trial, and yet all the blame of the delay, by a 
 irefinement of cruelty of which his case is the only example within 
 my knowledge, laid at his doof and- charged to liis account; what man', 
 old or young, in this community or any other, has ever borne him- 
 self through it all, even up to the present hour, with a braver or more 
 manly fortitude than Robert Swan? No sense of wrong, however 
 galling — no distress of mind, however acute— has ever impelled him 
 into a momentary departure from the most delicate proprieties of life. 
 There is a bravery of action, and a bravery of endurance ; and 
 where have either been displayed in brighter perfection than by this 
 boy ? 
 
134 
 
 Mr. P.'s address before the jury occupied three hours, and was a 
 full examination of the facts of the case. 
 
 September 30, 1853. 
 of theCourt met at 9 o'clock, Mr. May closed the case on thB part 
 
 The State: 
 
 He began by stating he would entirely remove every statement and 
 argument that had been advanced by all the Counsel in the way of 
 throwing prejudice over the prosecution. He declared it had been a 
 valid and just pursuit of a criminal, and that he would show that the 
 prisoner had received more favor than any one in his situation had 
 ever received in Maryland. He vindicated the removal of this case 
 from Allegany, and slated the grounds of it very fully. It was done, 
 he said, to prevent " a packed jury" from discharging the prisoner. 
 
 He explained how the delay of the case had happened, and charg- 
 ed that it was solely due to the prisoner and his Counsel ; that he 
 could have been tried long ago if he had only consented to it — but he 
 refused when applied to three several times for the purpose. 
 
 He denied that an application for an " ex post facto" law had been 
 made, and explained the nature of an "ex post facto" law. He quo- 
 ted the decision of the Supreme Court and the Bill of rights in sup- 
 porfof his views. He read the report made to the Governor by W, 
 Brent, touching the proposed legislation, and showed how fair and 
 just it was, and how it had been made necessary by the imperfect 
 law passed to gratify the feelings and relieve the situation of Judge 
 Perry, and which, though after the fact of the murder, had not been 
 considered ex post facto. It-only became so when it was needed to 
 cover a technical defect in favor of the administration of the laws. — 
 He read the Governor's Message to the Legislature on the subject, and 
 commended it in the strongesl terms. 
 
 He declared his high personal respect for the Governor, and said 
 he was entitled to the respect and confidence of every good citizea 
 for the firm part he had taken in this aifFair ;^ he vindicated Gov. 
 Lowe in a very conclusive way, and passed an earnest tribute of 
 praise upon him. He said the proposed law had passed the Senate 
 yp,animously and was only defeated in the House of Delegates by 
 the interest and influence of the friends and Counsel of the prisoner. 
 He then pronounced a strong condemnation on those members of the 
 House of Delegates who had been so weak and false, to their public 
 duty, and hoped he would y6t see the day when some man of nerve 
 would be found among our State Legislators to denounce and break 
 up the disgraceful system of lobby intrigueing, which had so long 
 prevailed at Annapolis. 
 
 He proceeded to inquire if he was in a Court-House, or 
 a place dedicated to the administration of the laws? He had heard 
 such extraordinary doctrines of repudiation and nullification from all 
 the Counsel, that he was in some doubt on the subject. 
 
135 
 
 He then proposed to inquire : Firstr— if there was any law to gov- 
 ern the jury, and if so, secondly— what law ? 
 
 The first Counsel for the defence had taken the position that the 
 only law was what he called " Jury common law," and had sta- 
 ted the verdicts of some, juries in very extraordinary cases, viz: 
 Stump's case, Mercer's case, &c., as evidence of what such law was. 
 
 The second had said public sentiment, or public opinion, was the 
 the only law since the new Constitution was adopted. 
 
 The third, that only the statute of 1809 was to be looked to, and 
 no common law ; no English law, nor any exposition of the statutes 
 was to be consulted, except reason and philosophy. 
 
 The fourth, that laws were only binding so long as, they gave pro- 
 tection, and as they could give no protection to the wounded honor of 
 his client, they could not be allowed to govern him. , 
 
 Mr. M. proceeded to consider and analyze their positions. He ex- 
 amined them very critically and severely, and declared they were he- 
 retical, monstrous, and subversive of all law and Government — such 
 sentiments and opinions were contrary to professional duty, and a vi- 
 olation of the oath of oflace, sworn at the Bar, 
 
 He could not believe it necessary to argue against the absurdity 
 of calling the attention of jurors to public opinion, for the jury-box 
 must be regarded as closed to all the world beside, and each juror 
 sworn to render a just verdict according to the law and the evidence, 
 without fear, favor, aflection, or his peculiar feelings — all else was 
 superfluous. The defence had conducted this trial as making an is- 
 sue between the prisoner and the deceased, and not upon its just 
 ground as between ihe State and the prisoner. They claim to estab- 
 lish the degrees of merit and demerit between the prisoner and the 
 deceased ; as though the State (representing the people) had nothing 
 to' do with the matter. He went into an examination of the law, as 
 applicable to the case, in contra-distinction to the doctrine of oppos- 
 ing Counsel, as derived from cases to whiqh they had referred ; du- 
 ring which Messrs. Price and Pearre interrupted him by way of ex- 
 planation. To which Mr. M. replied, that the cases upon which the 
 gentlemen found their theory goes upon the doctrine of the "higher- 
 law;" that principle by which an individual claims the right of dis- 
 solving his connection with society, assuming the position of a statq 
 of nature, and forming for himself whatever rules of action might be; 
 most coBffpalible with his feelings, inclinations, passions; for whiicK 
 doctrines he had no kind of respect. ; , 
 
 He insisted he had utterly rfefnted ,such views, and had ascerlained 
 that there was a law for the jury, — as in the new Constitution it is in 
 terms-expressed, and that "the law" was the law of Maryland. 
 
 He then stated the law very precisely, and read from the Statute 
 Book, and from American treatises and reports ; he principally used 
 the books referred to by the defence. He very clearly staled the 
 
136 
 
 law of the c^se of homicide, its degrees, &c., and impressed on the 
 jury the distinctions. . - 
 
 He next examined the evidence which could only apply to the" law 
 of the case, and stated the conclusion was irresistible that it was a 
 case of murder in the first degree. He explained at great length the 
 law of naurder, manslaughter, and of. self-defence — self-defence was 
 only allowed in defence of lite, and not, of honor. What, he as^ed, 
 caused the deed! There was no violation of the sacredness of, the 
 domestic circle — no putting of the prisoner's life, at hazard' — which 
 form reasons of justification. It was a case of mere personal pride, 
 of wounded honqr. Whoever heard pf the acquittal of a person 
 killing another for being spit uppn, or threatening to denounce in a 
 publication. The case of Sharaberg had been cited as in point by 
 opposing Counsel, but it did not hold good. The defence had' pro- 
 posed to kick all law out of the case, and try it upon precedents. — 
 The cocje of honor had been invoked in aid of the course of the pris- 
 oner ; vifhom Counsel had pictured as the pink of chivalry and hon- 
 or. He was here to vindicate the law. 
 
 He then considered the defence as set up : First — under the plea 
 of justification ; and, second — under the plea of insanity. 
 
 He reviewed the whole evidence, and examined all the arguments 
 and views of the defence under the first plea. He warmly vindicat- 
 ed the memory and character" of the deceased ; and drew a parallel 
 between him and the prisoner. He stated the appaHing facts of the 
 murder, and in turn applied the features of the shacking- catastrophe, 
 to falsity the elements of character for which the prisoner had been 
 praised. He declared in most emphatic terms, that it was "a cold- 
 blooded, deliberate, cruel, and cowardly deed." 
 
 He gave the jury some rules of law to aid them in weighing the 
 evidence, and explained how they ought to be applied. 
 
 He then examined the plea of insanity ; and read from law books 
 and from medical writers ; read and expounded the rules applying to 
 this most intricate subject. He fully examined the evidence apply- 
 ing to it, and answered' the vi&ws of the defence and the opinions of 
 the two Physicians who had testified. He warned the jury of this 
 plea, afid said it had only been set up after the other had failed. Af- 
 ter his critical examination of both the evidence and science applying 
 to it, he declared that it was a plea without any foundation wtealever 
 in this case. 
 
 He exhorted the jury to support the law, and strongly insisted that 
 the prisoner was entitled to no privilege ; that even-handed justice 
 must be done ; that sympathy was only due the poor, the friendless, 
 the ignorant; and not to those vrho possessed every advantrage of life. 
 There was no special law for one case different from that of anotlier 
 —no special privileges. Gentlemen talk' of oppression to their cli- 
 ent, whilst he is here surrounded by warmly attached friends, andhav- 
 ing the benefit of eminent Coimsel ; and no man, charged with such 
 
137 
 
 a high offence,/ ever enjoyed more privileges prior to and du- 
 ring the trial.' He called on the jury to do their dmy under 
 their oaths ; to guard society and human life ; and wound up with a 
 strong appeal to their responsibility here and hereafter. He then ex- 
 plained the form of their verdict, and concluded. 
 He spoke 8 hours- and 18 minutes. 
 
 NOTE. 
 
 Mr. Pearre, who made the closing argument for the "prisoner upon 
 the question raised on page — , as to the admissibility of Mr. Cla- 
 baugh's testimony in particular, and generally as to all testimony of 
 acts occurring between the deceased and the prisoner, prior to the 
 killing — and whose argument was omitted m its proper place — con- 
 tended : — 
 
 That the facts now offered to be proved, were acts which occurr- 
 ed between the prisoner and deceased before the killing ; that these 
 acts were an assault made by the deceased upon the body of the pris- 
 oner ; and that although some time had intervened between these 
 acts and the killing, yet the Court had no authority to take into con- 
 sideration the character of those acts, or how far they acted as a pro- 
 vocation upon the mind of the prisoner. The principle contended 
 for by the State will exclude evidence from the jury, even of the fact 
 of spitting in the face, and confine the evidence alone to the circum- 
 stances immediately surrounding the act of killing. 
 
 Upon what ground is it that the Court can say, these acts are no 
 provocation or excuse ? It must be that the acts offered to be proved 
 are no palliation, or are not sufficient iji law to afford any palliation 
 or excuse. But this a question for the determination of the jury — 
 they are the judges of the law in the case, — and the sufficiency of 
 the provocation is for their decision. Any act that affords to the jury 
 theslightest evidence ofprovocation, should be given to them to consider. 
 Even in civil cases the Court cannot take away from the jury an)' 
 evidence that tends to prove the issue. 
 
 In cases of homicide, the killing is not the sole issue; and in such 
 a case as this, where the killing is admitted, it is no part of the issue. 
 The issues are various under our Maryland law. 
 
 As to murder in the first degree-^one issue is,' whether there was 
 such malice as would constitute that crime; So as to murder in the 
 second degree. And as to manslaughter, which is killing without^ 
 malice express or implied, the great issue is, what were the provocar 
 tions, and how far they go to negative malice aUogethfer. 
 
 Novir here was a provocation. But we are told it was too long be- 
 fore the killing to evideiice to the minds of the jury the want of mal- 
 ice. Whether that be so or not, is for the jury to determine. If the 
 time that has intervened be sufficient to have allowed the prisoner to 
 entirely cool, in the opinions of the jury, then the provocation Will 
 not negative the malice. The length of time in which a man's pas- 
 
 10 
 
138 
 
 sions may cool, is not a question of law, as contended by the State ; 
 it is a question of fact to be decided by the jury — iRoscoe, 739, 1 
 Kussell, 527, 
 
 Cooling time is dependent upon the circumstances of each case. — 
 Wharton, 244. 
 
 Any question that is to be decided according to the state of facts of 
 circumstances of each case, is most appropriate for the decision of a 
 jury. The line which distinguishes between those provocations 
 which will and which will not extenuate an ofience, jcannot certainly 
 bedefined — Wharton, 237. 
 
 It is no law line, certain gnd fixed, to be decided upon by the 
 Court. In all cases in which human passion, and the emotions of 
 human mind, enter into the elements of a crime, the jury are always 
 more competent to act upon it than the Court. Mingling as jurors do, 
 with the mass of mankind, they are better qualified to form a correct 
 opinion as to the natural effect produced upon, the minds jpf men by 
 provocations, than a Judge, who, in contemplation of law, Jives a more 
 secluded life. To decide correctly upon the effect any provocation 
 will have upon any particular individual ; to what extent has passions 
 will be aroused thereby ; and how long before those passions will 
 cease, in some degree, to influence Jiis conduct and .actions, can only 
 be done by an examination into his temperament, his moral nature, 
 and all the circumstances surrounding him — thctnatureof his associa- 
 tions, and the opinions he had adopted. To spit in one man's face, 
 would drive him to desperation, and there are men in wh(>seface you 
 may spit all day for a, five dollar note. 
 
 AH this is for the jiiry, not the Court. la Maryland, where the 
 jury decide what constitutes the different grades of homicide, it is for 
 them to tlecide upon every element that enters into, or makes up, the 
 crime. 
 
 How can a jury decide whether or not a man is guilty of man- 
 slaughter, unless they decide whether any provocation offered by the 
 prisoner in extenuation of the k-illing, is or is not sufficient to reduce 
 it to that grade of crime. To decide upon any such provocation, it 
 must belaid .before them. The question is, then open for argument 
 before the jury, as to whether the ^provocation is sufficient or insuffic- 
 ient for that purpose— the jury hear it and decide upon itssuffipLency 
 in rendering their verdict. j 
 
 In England, even, all pirovocations were adjnditted in evidence be- 
 fore the jury,, however slight an,d remote they .might be; and the 
 Court, when they charged the jury, told them what weight, if any, 
 they should give to the evidence on that .point, in rendering their ver- 
 dict, — and to what extent it palliated or, excused the crime.. But in 
 this State, where the Court has no power to charge the jury,. t,he eyi- 
 dence must siill be given, and the jury. give to it such weight as they 
 think it entitled to, in palliating or excusing the offencp. 
 
 Mr. Pearre said that the eSOrt now made upon the part of the 
 
139 
 
 State, was intended to effect, by ruling out testimony, the same result 
 as would be produced in England by charging the jury ; or in other 
 words, to procure the Court to charge the jury, by ruling out the tes- 
 timony for the defence. 
 
 Mr. Pearre argued this question at length, taking many positions 
 and citing man)' authorities which we have not space to give. 
 
 On Wednesday morning, October 5th, at 7| o'clock,the jury came 
 in, and being asked if they had agreed upon a verdict, answered that 
 they had. The prisoner was then directed to stand up and hold up 
 his right hand, when the Clerk asked, "Do you find the pris- 
 oner guilty or not guilty of the murder of Wra. O. Sprigg, as 
 charged in the indictment?" to which the jury, through their foreman, 
 auswered "not guilty." 
 
 Mr. Harbine then moved that the "jury be polled, which being 
 done, they each responed "not guilty." 
 
 The verdict was hailed by a shout from Swan's friends, and after 
 order had been restored, an interchange of compliments took place 
 between the Court and Counsel, after which the prisoner was dis- 
 charged and the Court adjourned.