dJnrnpU ICaui ^rl^nol iCibrary Cornell University Library KF 211.F45 Famous legal arguments :showing the art. 3 1924 022 845 113 Cornell University 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/cu31 9240228451 1 3 FAMOUS LEGAL ARGUMENTS SHOWING THE Art, Skill, Tact, Genius and Eloquence Dis- played BY OUR Greatest Advocates in THE More Celebrated Trials OF Modern Times, WITH SKVURAL KAMOUS CASUS OX CIRCUMSTANTIAL EVIDENCE BY MOSES FIELD. \ y. ROCHESTER, N. Y.: E. J. BOSWORTH & CO., PUBLISHERS. 1897. PART II. CIRCUMSTANTIAL EVIDENCE. Page. HOMICIDE— The Boorn Brothers Case, 182 HOMICIDE— Anonymous, 185 PARRICIDE— An Indiana Case, 188 MISTAKEN MEDICAL TESTIMONY— A Vermont Case 190 HOMICIDE— Giff and Lamph Case, 193 MR. HOFFMAN'S ADVICE, 196 JUDGE DONOVAN'S ADVICE, 197 PREFAaE. The author's aim in this compilation is to present to the Legal Profession, both old and young, and also tp laymen who delight to peruse legal literature, the per- suasive arguments, art, tact and skill, as used by our distinguished advocates in the more celebrated trials of modern times, selecting those which are in his judg- ment noted for their legal reasoning, quick perception of thought at critical moments and forensic power. The variety of topics covered by these speeches, their lofty eloquence, vast research and fertility of genius displayed will forever fix them in the minds of the reader as models of the subjects discussed. • In the hope that you will find herein valuable sug- gestions as well as interesting matter for legal recrea- tion the work is respectfully submitted. The Author. Famous Legal Arguments. EDWIN M. STANTON. ARGUMENT IN DEFENSE OF HON. DANIEL E. SICKLES FOR THE MURDER OF PHILIP BARTON KEY. DISTRICT OF COLUMBIA CRIMINAL COURT, WASHINGTON, D. C, APRIL, 1 859. On Sunday, Feb. 27th, the City of Washington was suddenly thrown into a state of excitement on learning that Philip Barton Key, U. S. District Attorney, had been shot by Daniel E. Sickles, a member of Congress from New York. The cause of the terrible affair was the discovery of a criminal intercourse between Mrs. Sickles and Mr. Key, a fact which had been established by Mrs. Sickles' confession to her husband. Mr. Sickles encountered Mr. Key on the street and exclaimed : " Key, you scoundrel, you have dishonored my home ; you must die.' Key instantly raised his hand to his breast for his weapon, whereupon Sickles drew a pistol from his pocket and fired. The shot took effect in the groin. This was followed by a second and third shot; he then fell and died immediately. Mr. S. then desisted firing and gave himself over to the authorities On March 24th, after a thorough examination of the facts, Mr. S. was indicted for the murder of Key. The case was ably conducted by both sides, the trial last- ing twenty days. lO FAMOUS LEGAL ARGUMENTS. The jury was out seventy minutes and returned with a verdict of " Not Guilty." Mr. Stanton, in summing up for the defense, spoke as follows : May it please your honor : It becomes my duty to present some considerations in support of the points of law which have been sub- mitted by the defense, and which points are in con- formity with those which may be given a jury. The event which has brought the jury and the prisoner at the bar into solemn relations, and made the court and counsel participators in this momentous trial, is the'death of Mr. Key at the hand of Mr. S., which took place on Sunday, the 27th of February. The occasion of this event was an adulterous intrigue between Mr. K. and the wife of Mr. S. The law arising in the case must depend on the relations each held to the other at the time the occurrence took place. Two theories have been presented — one by the prosecution, the other by the defense. Those theories, as in all such cases, are opposite ; and it will be for the court, by a comparison of those theories with the known principle of law, to give to the jury the instruction. The act of taking human life is designated in law by the general term of homicide, which may be either with or without malice. The Act of Congress, which gov- erns in this district, designates two grades of unlawful homicide, namely, murder and manslaughter. " Mur- FAMOUS LEGAL ARGUMENTS. II der," says Blackstone, " is now thus defined or rather described by Coke : ' when a person of sound memory and discretion unlawfully killeth any reasonable crea- ture in being, and under the King's peace, with malice aforethought, either express or implied'." The same author defines manslaughter to be "the unlawful kill- ing of another without malice, either express or im- plied ; which may be either voluntary, upon a sudden heat or involuntary, but in the commission of some unlawful act." In some states the law designates other grades of unlawful homicide,, but only two are designated by the Act of Congress before referred to ; but life may be taken under circumstances which the law will excuse or justify. This must depend on a variety of circumstances neither forseen nor enumer- ated, and must be judged by wise tribunals and by maxims which form the common law of the land, and are essential to peace and security. They are illustrated by examples and cases, whence the reason of the law can be derived, and by these the true rule of judgment is ascertained. There are two classes of cases in which a man may be exempted from judicial punishment for killing, namely, self protection, which is a natural right, and, secondly, the defense of one's household from the thief or robber. But there is a third class arising from the social relation, for the law holds family chastity and the sanctity of the marriage bed, the matron's honor and the virgin's purity, to be more valuable and 12 FAMOUS LEGAL ARGUMENTS. estimable in law than the property or life of any man. The present case belongs to that class. On it rests the foundation of the social system. As it in- volves the life of the prisoner, it cannot be too carefully considered. Indeed this principle has never com^ before a judicial tribunal in a form more impressive than now. Here, in the capital of the nation, the social and political metropolis of thirty millions of people, a man of mature age, the head of a family, a member of the learned profession, a high ofificer of the government entrusted with the administration of the law, and who for years at this bar has demanded judgment of fine, imprisonment and death against other men for offenses against law, has himself been slain in open day in a pub- lic place because he took advantage of the hospitality of a sojourner in this city. Received into his family, he debauched his house, violated the bed of his host, and dishonored his family. On this ground, alone, the deed of killing was committed. When the crime was committed against him by the deceased, in both points of view, the relations which the deceased and the prisoner at the bar bore to each other at the moment of the fatal act are to be observed — one, as a husband outraged in his house, his family, and his marital rights ; the other, an adulterer in flagrante delicto. While counsel for the prisoner insist that the act is justified by the law, the counsel for the prosecution assert that the act is destructive of the existence of FAMOUS LEGAL ARGUMENTS. I J society, and demand judgment of death as a fitting penalty. The very existence of civil society depends not on human life, but on the family relations, " Who knows not," says John Milton, "that chastity and purity of living cannot be established or continued, except it be first estabjished in private families, ,from whence the whole breed of men come forth?" " The family," says another moralist, " is the cradle of sensibility, •\vhere the first lessons are taught of that tenderness and l;iumanity which cement mankind together; and were they extinguished, the whole fabric of society would be dissolved." The first and most sacred tie, however, is the nuptial bond. Np man could enjoy any happiness or pursue any vocation if he could not enjoy his wife, free fronri the assaults of the adulterer. The dignity and per- manence of the marriage are destroyed by adultery. When the wife becomes the adulterer's prey, the family is destroyed, and all family relations are involved in the ruin of the wife, When a man accepts a woman's, h^and in wedlock, he receives it with a vow, that she will Ipye, honor, serve and obey him, in sickness or in health, and will cleave only to him. This bond is sancti, fied by the law of God, " what God hath joine4 together let no man put asunder." By a marriage, the woman i^ sanctified to the husband and this bond must be pre, served for the evil as well as the good. It is the blessn 14 FAMOUS LEGAL ARGUMENTS. ing of the marital institution, that it weans from their sins and draws them to the performance of their duties. This seal of the nuptial vow is no idle cere- mony. Thenceforth the law commands the adulterer, to beware of disturbing their peace. It commands that no man shall look on a woman to lust after her. The penalty for disobedience to that injunction did not originate in human statutes ; it was written in the heart of man in the garden of Eden, where the first family was planted, and where the woman was made bone of man's bone, flesh of man's flesh. No wife yields herself to the adulterer's embrace until he has weaned her love from her husband ; she revolts from her obedience and serves the husband no longer; when her body has been once surrendered to the adulterer, she longs for the death of her husband, whose life is often sacrificed by the cup of the poisoner or the dagger of the assassin. The next greatest tie is that of the parent and child. If in God's providence a man has not only watched over the cradle of his child, but over the grave of his offspring and has witnessed earth committed to earth, ashes to ashes, dust to dust, he knows that the love of parent for his child is stronger than death. The bitter lamentation — " would to God that I had died for thee" — has been wrung from many a parent's heart. But when the adulterer's shadow comes between the parent and child they cast over both a gloom darker FAMOUS LEGAL ARGUMENTS. 1 5 than the grave. What agony is equal to his, who knows not whether the children gathered around his board are his own offspring or an adulterous brood, hatched in his bed ? To the child it is still more disas- trous. Nature designs that children shall have the care of both parents ; the mother's care is the chief blessing of her child — a mother's honor its priceless inheritance. But when the adulterer enters a family, the child is deprived of the care of one parent, perhaps of both. When death, in God's providence, strikes a mother from the family, the deepest grief that preys upon a husband's heart is the loss of her nurture and example to his orphan child ; and the sweetest conversation be- tween parent and child is when they talk of the be- loved mother who is gone. But how can a father name a lost mother to his child, and how can a daughter hear that mother's name without a blush ? Death is merciful to the pitiless cruelty of him whose lust has stained the fair brow of innocent childhood by corrupting the heart of the mother, whose example must stain the daughter's life. Such are the results of the adulterer's crime on the home as it exists in the household, and as it belongs to the family of every man. They show that the adult- erer is the foe of every social relation, the destroyer of every domestic affection, the fatal enemy of the family, and the desolator of the home. This crime is l6 FAMOUS LEGAL ARGUMENTS. fraught with ruin to individuals and destruction to society. What is the act of adultery? It Cannot be limited to the fleeting moment of sexual contact ; that would be mockery, for then the adulterer would ever escape'. But law and reason mock not human nature with any such vain absurdity. The act of adultery, like the act of murder, is supposed to include every proximate act in furtherance of, and as a means to, the consummation of the wife's pollution. This is an established princi- ple in American and English law, established from the time of Stowell, as will be hereafter shown. ' If the adulterer be found in the husband's bed, he is taken in the act, within the meaning of the law, as if he was found in the wife's arms. If he provides a place for the express purpose of commftting adultery with another man's wife, and be found leading her, ac- companying her or following her to that place for that purpose, he is taken in the act. If he not only pro- vides, or habitually keeps such a place, and is accus- tomed by preconcerted signals to entice the wife froni the husband's house, to besiege her in the streets, to accompany him to that vile den ; and if, after giving such preconcerted signals, he be found watching her, spy-glass in hand, and lying in wait around a husband's house, that the wife may join him for that guilty pur- pose, he is taken in the act. If a man hire a house, furrtish it, provide a bed in it FAMOUS LEGAL ARGUMENTS. 17 for such purpose, and if he be accustomed, day by day, to entice her from her husband's house, to tramp with her through the streets to that den of shame, is an act of adultery and is the most appalHng one that is recorded in the annals of shame ; if, moreover, he has grown so bold as to take the child of the injured husband, his little daughter, by the hand, to separate her from her mother, to take the child to the house of a mutual friend while he leads the mother to the guilty den, in order there to enjoy her, it presents a case surpass- ing all that has ever been written of cold, villainous, remorseless lust. If this be not the culminating point of adulterous depravity, how much farther could it go ? There is no one point beyond. The wretched mother, the ruined wife, has not yet plunged into the horrible filth of com- mon prostitution, to which she is rapidly hurrying, and which is already yawning before her. Shall not that mother be saved from that, and how shall it be done? When a man has obtained such a power over another man's wife that he cannot only entice her from her hus- band's house, but separate her from her child for the purpose of guilt, it shows that by some means he has acquired such an unholy mastery over that woman's body and soul that there is no chance of saving her while he lives, and the only hope of her salva- tion is that God's swift vengeance shall overtake him. The sacred glow of well-placed domestic affection, 1 8 FAMOUS LEGAL ARGUMENTS. no man knows better than your Honor, grows brighter and brighter as years advance, and the faithful couple, whose hands were joined in holy wedlock in the morn- ing of youth, find their hearts drawn closer to each other as they descend the hill of life to sleep together at its foot ; but lawless love is short lived as it is crim- inal, and the neighbor's wife so hotly pursued, by tramping down every human feeling and divine law, is speedily supplanted by the object of some fresher lust, and then the wretched victim is sure to be soon cast off into common prostitution and swept through a miserable life and a horrible death to the gates of hell, unless a husband's arm shall save her. Who seeing this thing would not exclaim to the un- happy husband : Hasten, hasten to save the mother of your child. Although she be lost as a wife, rescue her from the horrid adulterer ; and may the Lord, who watches over the home and the family, guide the bullet and direct the stroke. And when she is delivered, who would not reckon the salvation of that young mother cheaply purchased by the adulterer's blood ? The death of Key was a cheap sacrifice to save one mother from the horrible fate which hung over this prisoner's wife and the mother of his child. Mr. Stanton here reviewed the celebrated " Manning case " and the authorities upon the question of adultery as a justifica- tion for homicide. FAMOUS LEGAL ARGUMENTS. . I9 There were four epochs in which killing in such cases went unpunished ; it was justified under the Jewish dis- pensation, by the law of Solon, by those of the Roman Empire, and by the Gothic institutions which have given shape to our own. From the time of Edward II. to King Charles no word is to be found in the com- mon law, no word imputing guilt to the slayer of the violator of the chastity of his wife. This .right to kill was never denied till now. The age of Charles was an age of adultery and gross corruption ; the place was filled with harlots and thronged with adulterers and adulteresses; the judges were the panderers, partakers and protectors of the corruptions of the age, and the same court which adjudged the hus- band to be a felon for slaying the adulterer in his bed, fined and sent jurors to prison for refusing to find in accordance with its instructions. It was the same court which hunted Quakers, Catholics and Noncon- formists to death and sent to the pillory and prison John Bunyan for preaching the gospel. This was the state of the laws and social life at the time the principle was introduced into the common law of England, that to kill an adulterer in the act is a crime. And when society in this district is reduced to the same condition, and when the government offices are filled by open and avowed adulterers, when the wife's purity and family chastity shall become a jest, 20 FAMOUS LEGAL ARGUMENTS. then it will be time to introduce here a principle of common law never before heard from the judgment seat ; then it will be necessary for the court to extend the shield of law over its attorneys to save their lives From the harids of the husbands whose wives they have violated, whose homes they have destroyed, and whose families they have made desolate. I claim, then, on this proposition, that the expres- sion or rule of the common law in regard to the. consent of the wife had its origin in a state of manners and of social life that do not exist in this country, and that rule is not applicable here. It is founded on the prin- ciple that the wife's consent can qualify the degree of the adulterer's guilt, and determines the husband to be a criminal. In American society, there is a freedom from restraint and supervision that exists nowhere else, and this results from various causes: husbands, fathers and brothers devote a large share of time to the cares of life and to the duties of providing for the family, during which time the female portion of the family are left to themselves without protection. The frequent 'changes of habitation and the equality of our social 'c6nditi6n lead to a frankness of- intercourse which re- quires, for the sanctity of the home and the security of the marriage bed, a rigorous personal responsibility to the death. The peculiar conditions of society in this district are also to be noted before any principle like that of social law can be introduced. FAMOUS LEGAL ARGUMENTS. 21 Familes come hither from all parts of the Union to remain for a shorter or longer period of time. To enjoy any social life here, the intercourse must be frank, without suspicion. The time which, in long established communities, may enable individuals to choose and pick out those with whom they may associate, is not had here. Besides, it has been the custom here for officers of the government, and those in the public employ- ment, to throw open their doors with a wide hospitality that exists nowhere else. This forms a peculiar feature and attraction in Washington society, and by the population that it attracts here and the stimulus thus given to business, the wealth and prosperity of the city and district are promoted. But if these social occasions are to be made the means by which the adulterer pur- sues his lust, then the doors of families must be swiftly closed. No man would be willing to have his hospi- tality made the means of an assignation, or the social occasions, when he desires to have his friend's and neighbor's pleasure converted into opportunities for corrupting the innocent wife of his friend. I repeat, then, that the doctrine on which the prose- cution rests, is founded on the Manning case, copied by Hale and Foster and Blackstone. But it is also to be observed that, from the day in which Manning's case was decided to the present hour, it has not been followed by the conviction of a husband in England. No husband since then has been punished as a felon 22 FAMOUS LEGAL ARGUMENTS. for taking the life of an adulterer. In three cases the doctrine of that case has been declared from the bench, but only by two judges : the cases of the Queen against Fisher, and another case. In the one there was no adultery of the wife; in the other, no marriage, and in the third the crime was of a totally different nature. As, from the time of Alfred to the time of Charles the Second, there is no evidence that a husband was regarded as a felon in common law for slaying an adulterer, or from the time of Charles the Second to the present hour that principle has never been en- forced by the punishment of any man in England. The case, however, which was cited from Hill's Reports, has some analogy to this case. There the adulterer slew a husband who was endeavoring to rescue his wife, and it was held that the murderer could not set up the plea of self-defense. The Ameri- can common law on this subject is shown in the cases of Mercer, Myers, Green, Stump, and the case of Jarboe, where, in each instance, the slayer of the seducer was acquitted. I also refer your honor to Smith's case and Sher- man's case in Philadelphia, Boyer's case in Virginia, and Ryan's case reported in Vol. 2, Wheeler's Criminal Cases ; where, then, I ask, does the adulterous doctrine of Charles the Second prevail in America? Not where the stars and stripes wave ; not even where the royal FAMOUS LEGAL ARGUMENTS. 23 banner of England floats ; for it was not long since in Canada, a husband had followed his wife's seducer from city to city till he found and slew him ; and there the doctrine of Charles the Second was repelled and the man instantly acquitted. By the American law the husband is always present by his wife ; his arm is always by her side ; his wing is ever over her. The consent of the wife cannot in any degree affect the question of the adulterer's guilt ; and if he be slain in the act by the husband, then it is justi- fiable homicide. I will pass, then, to the question of what constitutes the act. I understood one of the learned counsel for the prosecution to claim, in accord- ance with the very loose language of Baron Parke, that it is necessary for the husband to have ocular demon- stration. It does credit to the frankness as well as to the good sense of the counsel not to claim that doctrine, but that is the doctrine of Manning's case. The wife could not only consent to the act, but the husband, if he came in in the dark, could not lay his hands on the adulterer until he lit the candle and saw his shame ; and then if he slew the adulterer he must have the felon's branding on his hand. The object was to erect before the husband the gallows and branding iron, so that the courtiers and corrupt men of that age might pursue with impunity the wives and daughters of the people ; hence they demanded not only that the wives 24 FAMOUS LEGAL ARGUMENTS. should consent, but that the husband should see his shame. As late as within the last few years, Baron Parke, sitting in the judgment seat of England, said that the husband must have ocular inspection of the act. What is the act, and what is necessary? It is the fact of adultery that constitutes the guilt of the individual and the justification of' the husband. The fact is to be manifested according to the rules of evi- dence that apply in regard to other facts. My last ^proposition is, that the wife's consent can- not shield the adulterer, she being incapable by law of consenting to any infraction of her husband's marital rights, and that, in the absence of consent and conniv- ance on his part, every violation of the wife's chastity is, in the contemplation of law, forcible and against his will, and may be treated by him as an act of violence and force on his wife's person. The law does not look to the degree of force ; it looks to the forcible movement ; and being an act of force, it follows that the right of the husband to resist that force is clear and undoubted on the highest prin- ciples of law. By the contemplation of law, the wife is always in the husband's presence, always under his wing ; and any movement against her person is a move- ment against his right, and may be resisted as such. We place the ground of defense here on the same ground and liqjited by the same means as the right of FAMOUS LEGAL ARGUMENTS. 25 personal defense. If a man be assailed, his power to slay the assailant is not limited to the moment when the mortal blow is about to be given ; he is not bound to wait till his life is on the very point of being taken,; but any movement towards the foul purpose plainly indicated justifies him in the right of self-defense, and in slaying the assailant on the spot. The theory of our case is, that there was a man living in a constant state of adultery with the prisoner's wife, a man who was daily, by a moral — no, by an immoral power — enormous, monstrous, and altogether unparalleled in the history of American society or in the history of the family of man, a power over the being of this woman — calling her from her husband's house, drawing her from the side of her child, and dragging her day by day through the streets in order that he might gratify his lust. The husband beholds him in the very act of withdrawing his wife from his roof, from his presence, from his arm, from his wing, from his nest:; meets him in that act and slays him, and we say that the right to slay him stands on the firmest principles Off self-defense. I have endeavored, as briefly as I could, to explain the principles of social law and jurisprudence on which the defense is planted, and I trust that on examination it will not be found to be any visionary ground of defense, or any such mere theory as was apprehended by my learned friend who opened the argument. He 26 FAMOUS LEGAL ARGUMENTS. /' 3ays that society could not exist on such principles, because this was the exercise of the right of private judgment ; and if it was to be established as a principle, the land would be a scene of blood, as the punishment of adultery would be followed by the punishment of other crimes. Now, if it were so, if this land were to be a scene of blood had it not better run in torrents through the streets than that the homes of men should be destroyed by the adulterer at will ? But it is not so. Neither your Honor nor I will be frightened by any such appalling picture. Thank God, adultery is a crime that is usually a stranger to American society. It is but rarely in our history that some great event like this occurs to startle society and lead it to the -examination of the principles on which it is founded. That has been the case, and should it lead to the examination of the principles of law on which homes and family rest, should it result in planting around that home and family the safeguards of the law, in breaking through the bonds by which the adulterous court of Charles the Second undertook to bind the arm of the husband, then some good will grow out of that great evil that has been produced by this event. It is not my purpose to pursue this discussion in reference to the other points. I shall leave them to my colleague. I thank your Honor for the patience with which you have heard me in the discussion of this question. I have endeavored to discuss it on principles FAMOUS LEGAL ARGUMENTS. 2^ which I believe, as a man, as a father, and as a hus- band, to be essential to the peace and security of your home and mine. I have endeavored to discuss it on principles which are essential to the peace and pros- perity of the society in which my home is planted as well as yours ; and I hope that, by the blessing of God, as it has been your Honor's good fortune to lay down the law which secures the family, in one aspect, from the seducer of the sister ; you may also plant on the best and surest foundations the principles of law which secure the peace of the home, the security of the fam- ily, and the relations of husband and wife, which have been in the most horrid manner violated in this case. As counsel resumed his seat he was greeted with an outburst of applause which was quelled with difficulty. DANIEL WEBSTER. ARGUMENT IN THE TRIAL OF JOHN FRANCIS KNAPP FOR THE MURDER OF CAPTAIN JOSEPH WHITE, AT SALEM, MASS., APRIL, I83O. This is one of the most celebrated murder trials in our history and by far the most important one in which Mr. Webster was engaged. He appeared as counsel for the prosecution and assisted in the trial. He spoke as follows: I am little accustomed, gentlemen, to the part which I am now attempting to perform. Hardly more than once or twice has it happened to me to be concerned on the side of the government in any criminal prosecu- tion whatever ; and never, until the present occasion, in any case affecting life. But I very much regret that it should have been thought necessary to suggest to you that I am brought here to " hurry you against the law and beyond the evidence." I hope I have too much regard for justice, and too much respect for my own character to attempt either ; and were I to make such attempt, I am sure that in this court nothing can be carried against the law ; and that gentlemen, intelligent and just as you are, are not, by any power, to be hurried beyond the evidence. Though I could well have wished to shun this occasion, I have not felt at liberty to withhold my professional assistance when it is supposed that I may FAMOUS LEGAL ARGUMENTS. 29 be in some degree useful in investigating and discover- ing the truth respecting this most extraordinary mur- der. It has seemed to be a duty incumbent on me, as on every citizen, to do my best and my utmost to bring to Hght the perpetrators of this crime. Against the prisoner at the bar, as an individual, I cannot have the slightest prejudice. I would not do him the smallest injury or injustice. But I do not affect to be indiffer- ent to the discovery and the punishment of this deep guilt. I. cheerfully share in the opprobrium, how great "soever it may be, which is cast on those who feel and manifest an anxious concern that all who had a part in planning, or a hand in executing this deed of midnight assassination, may be brought to answer for their enormous crime at the bar of justice. Gentlemen, it is a most extraordinary crime. In some respects it has hardly a precedent anywhere ; certainly none in our New England history. This bloody drama exhibited no suddenly excited, ungov- ernable rage. The actors in it were not surprised by any lion-like temptation springing upon their virtue and overcoming it, before resistance could begin, nor did they do the deed to glut savage vengeance, or satiate long-settled and deadly hate. It was a cool, • calculating, money making murder. It was all "hire and salary, not revenge;" It was the weighing of money against life ; the counting out of so many pieces of silver against so many ounces of blood. 30 FAMOUS LEGAL ARGUMENTS. An aged man, without an enemy in the world, in his own house, and in his own bed, is made the victim of a butcherly murder for mere pay. Truly, here is a new lesson for painters and poets. Who ever shall hereafter draw the portrait of murder, if he will show it as it has been exhibited, where such example was last to have been looked for, in the very bosom of our New England society, let him not give it the grim visage of Moloch, the brow knitted by revenge, the face black with settled hate, and the bloodshot eye emitting livid fires of malice. The deed was executed with a degree of self-posses- sion and steadiness equal to the wickedness with which it was planned. The circumstances now clearly in evidence spread out the whole scene before us. Deep sleep had fallen on the destined victim, and on all beneath his roof. A healthful old man to whom sleep was sweet, the first sound slumbers of the night held him in their soft and strong embrace. The assassin enters through the window already prepared, into an unoccupied apartment. With noiseless foot he paces the lonely hall, half lighted by the moon ; he winds up the ascent of the stairs, and reaches the door of the chamber. Of this, he moves the lock by soft and con- tinued pressure, till it turns on its hinges without noise, and he enters and beholds his victim before him. The room is uncommonly open to the admission of light; the face of the innocent sleeper is turned from the FAMOUS LEGAL ARGUMENTS. 3 1 murderer, and the beams of the moon, resting on the gray locks of his aged temple, show him where to strike. The fatal blow is given, and the victim passes without a struggle or a motion from the repose of sleep to the repose of death ! It is the assassin's pur- pose to make sure work ; and he applies the dagger, though it is obvious that life has been destroyed by the blow of the bludgeon. He even raises the aged arm, that he may not fail in his aim at the heart, and replaces it again over the wounds of the poniard ! To finish the picture, he explores the wrist for the pulse ! He feels for it, and ascertains that it beats no longer! It is accomplished. The deed is done. He retreats, retraces his steps to the window, passes out through it as he came in, and escapes. He has done the murder. No eye has seen him, no ear has heard him. The secret is his own and it is safe ! Ah ! gentlemen, that was a dreadful mistake. Such a secret can be safe nowhere. The whole creation of God has neither nook nor corner where the guilty can bestow it and say it is safe. Not to speak of that eye which pierces through all disguises, and beholds every- thing as in the splendor of noon, such secrets of guilt are never safe from detection, even by men. True it is, generally speaking, that " murder will out." True it is, that Providence has so ordained, and doth so govern things, that those who break the great law of Heaven by shedding man's blood seldom succeed in 32 FAMOUS LEGAL ARGUMENTS. avoiding discovery. Especially in a case like this, dis- covery must come, and will come, sooner or later. A thousand eyes turn at once to explore every man, every thing, every circumstance connected with the time and place; a thousand ears catch every whisper; a thousand excited minds intensely dwell on the scene, shedding all their light, and ready to kindle the slightest circumstance into a blaze of discovery .^_ Meantime the guilty soul cannot keep its own secret. It is false to itself ; or rather it feels an irresistible impulse of con- science to be true to itself. It labors under its guilty possession, and knows not what to do with it. The • human heart was not made for the residence of such an inhabitant. It finds itself preyed on by a torment which it dares not acknowledge to God or man. A vulture is devouring it, and it can ask no sympathy or assistance, either from heaven or earth. The secret which the murderer possesses soon comes to possess him ; and, like the evil spirits of which we read, it overcomes him and leads him whithersoever it will. He feels it beating at his heart, rising to his throat, and demanding disclosure. He thinks the whole world sees it in his face, reads it in his eyes, and almost hears its workings in the very silence of his thoughts. It has become his master. It betrays his discretion, it breaks down his courage, it conquers his prudence. When suspicions from without begin to embarrass him, and the net of circumstances to entangle him, the fatal FAMOUS LEGAL ARGUMENTS. 33 secret struggles with still greater violence to burst forth. It must be confessed, it will be confessed ; there is no refuge from confessiori biit suicide, and suicide is confession. T It seems to me, gemlemen, that there are appear- ances of another feeling, of a very different nature and character; not very extensive I would hope, but still there is too much evidence of its existence. Such is human nature, that some persohs lose their abhorrence of crime in their admiration of its magnificent exhibi- tions. Ordinary vice is reprobated by them, but extraordinary guilt, exquisite wickedness, the high flights and poetry of crime, seize on the imagination and lead them to forget the depths of the guilt in admiration of the excellence of the performance, or the unequaled atrocity of the purpose. There are those in our day who have made great use of this infirmity of our nature, and by means of it done infinite injury to the cause of good morals. They have affected not only the taste, but I fear also the principles of the young, the heedless, and the imaginative, by the exhi- bition of interesting and beautiful monsters. They render depravity attractive; sometimes by the polish of its manners, and sometimes by its very extrava- gances ; and study to show off crime under all the advantages of cleverness and dexterity. Gentlemen, this is an extraordinary murder, but it is still a murder. We are not to lose ourselves in wonder at its origin, or 34 FAMOUS LEGAL ARGUMENTS. in gazing on its cool and skillful execution. We are to detect and to punish it ; and while we proceed with caution against the prisoner, and are to be sure that we do not visit on his head the offense of others, we are yet to consider that we are dealing with a case of most atrocious crime, which has not the slightest cir- cumstance about it to soften its enormity. It is mur- der ; deliberate, conceited, malicious murder. The learned counsel of the prisoner has said truly, that it is your individual duty to judge the prisoner; that it is your individual duty to determine his guilt or innocence ; and that you are to weigh the testimony with candor and fairness. But much at the same time has been said which, although it would seem to have no distinct bearing on the trial, cannot be passed over without some notice. A tone of complaint so peculiar has been indulged, as would almost lead us to doubt whether the prisoner at the bar or the manager of this prosecution are now on trial. Great pains have been taken to complain of the manner of prosecution. We hear of getting up a case ; of setting in motion trains of machinery; of full testimony ; of combinations to overwhelm the prisoner ; of private prosecutors ; that the prisoner is hunted, persecuted, driven to his trial; that everybody is against him. In the course of my whole life I have never heard before so much said about the particular counsel who happen to be employed ; as if it were FAMOUS LEGAL ARGUMENTS. 35 extraordinary that other counsels than the usual offi- cers of the government should assist in the manage- ment of a case on the part of the government. In one of the last criminal trials in this country, that of Jack- man for the " Goodridge robbery," so-called, I remem- ber that the learned head of the Suffolk bar, Mr. Prescott, came down in aid of the officers of the government. This was regarded as neither strange nor improper. The counsel for the prisoner in that case contented themselves with answering his arguments as far as they were able instead of carping at his presence. Complaint is made that rewards were offered in this case and temptations held out to obtain testimony. Are not rewards always oflered when great and secret offenses are committed ? Rewards were offered in the case to which I have alluded, and every other means taken to discover the offenders, that ingenuity or the most persevering vigi- lance could suggest. The learned counsel have suf- fered their zeal to lead them into a strain of complaint at the manner in which the perpetrators of this crime were detected, almost indicating that they regard it is a positive injury to them to have found out their guilt. Since no man witnessed it, since they do not now con- fess it, attempts to discover it are half esteemed as officious intermeddling and impertinent inquiry. It is said, that here even a committee of vigilance was appointed. This is a subject of reiterated remark. 36 FAMOUS LEGAL ARGUMENTS. This committee are pointed at as though they had been officiously intermeddling with the administration of justice. They are said to have been " laboring for months " against the prisoner. Gentlemen, what must we do in such a case ? Are people to be dumb and still through fear of overdoing? Is it come to this, that an effort cannot be made, a hand cannot be lifted, to, discover the guilty, without its being said that there is a combination to overwhelm innocence ? Has the community lost all moral sense ? Certainly, a com- munity that would not be roused to action upon an occasion such as this was, a community which should not deny sleep to their eyes, and slumber to their eye- lids, till they had exhausted all means of discovery and detection, must indeed be lost to all moral sense, and would scarcely deserve protection from the laws. The learned counsel have: endeavored to persuade you, that there exists a prejudice against the persons accused of this murder. They would^ have you understand that it is not confined to this vicinity alone ; but that even the Legislature have qaught this spirit. That through the procurernent of the gentleman here styled private prosecutor, who is a member of the Senate, a special session of this court w^Sj appointed for the trial of these offenders. That the ordinary movements of the wheels of justice were too, slow for the purposes, devised. But does npt eyerybjody see and know, that it was a matter of absolute necessity to have a special, FAMOUS LEGAL ARGUMENTS. 37 session of the court ? When or how could the prison- ers have been tried without a special session ? In ordinary arrangement of the courts, but one week in a year is allotted for the whole court to sit in this county. In the trial of all capital offenses a majority of the court, at least, is required to be present. In the trial of the present case alone, three weeks have already been taken up. Without such special session, then, three years would not have been sufficient for the purpose. Again, it is said that it was not thought of making Francis Knapp, the prisoner at the bar, a PRINCIPAL till after the death of Richard Crowninshield, Jr. ; that the present indictment is an afterthought ; that " testi- mony was got up " for the occasion. It is not so. There is no authority for this suggestion. The case of the Knapps had not then been before the Grand Jury. The officers of the government did not know what the testimony would be against them. They could not, therefore, have determined what course they should pursue. They .intended to arraign all as principals ■who should appear to have been principals, and all as accessories who should appear to have been accessories. All this could be known only when the evidence should be produced. It is said, that " laws are made, not for the punish- ment of the guilty, but for the protection of the inno- cent." This is not quite accurate, perhaps, but if so, we hope they will be so administered as to give that j8 FAMOUS LEGAL ARGUMENTS. protection. But who are the innocent whom the law would protect ? Gentlemen, Joseph White was inno- cent. They are innocent who, having lived in the fear of God through the day, vvish to sleep in His peace through the night, in their own beds. The law is established that those who live quietly may sleep quietly ; that they who do no harm may feel none. The gentlemen can think of none that are innocent except the prisoner at the bar, not yet convicted. Is a proved conspirator to murder innocent ? Are the Crownin- shields and the Knapps innocent? What is inno- cence? How deep stained with blood, how reckless in crime, how deep in depravity may it be, and yet retain innocence? The law is made, if we would speak with entire accuracy, to protect the innocent by punishing the guilty. But there are those innocent out of a court, as well as in ; innocent citizens not suspected of crime, as well as innocent prisoners at the bar. The criminal law is not founded in a principle of vengeance. It does not punish that it ^nay inflict suf- fering. The humanity of the law feels and regrets every pain it causes, every hour of restraint it imposes, and more deeply still every life it forfeits. But it uses evil as the means of preventing greater evil. It seeks to deter from crime by the example of punishment. This is its true, and only true main object. It re- strains the liberty of the few offenders, that the many who do not offend may enjoy their liberty. It takes FAMOUS LEGAL ARGUMENTS. 39 the life of the murderer, that other murders may not be committed. The law might open the jails and at once set free all persons accused of offences, and it ought to do so if it could be made certain that no other offences would hereafter be committed, because it punishes, not to satisfy any desire to inflict pain, but simply to prevent the repetition of crimes. When the guilty, therefore, are not punished, the law has so far failed of its purpose ; the safety of the innocent is so far endangered. Every unpunished murder takes away something from the security of every man's life. Whenever a jury, through whimiscal and ill-founded scruples, suffers the guilty to escape, they make them- selves answerable for the augmented danger to the in- nocent. Gentlemen, let us now come to the case. Your first inquiry, on the evidence, will be, was Captain White murdered in pursuance of a conspiracy, and was the defendant one of this conspiracy ? If so, the second inquiry is, was he so connected with the murder itself as that he is liable to be convicted as 2. principal? The defendant is indicted as a principal. If not guilty as such, you cannot convict him. The indictment con- tains three distinct classes of counts. In the first, he is charged as having done the deed with his own hand.; in the second, as an aider and abettor to Richard Crowninshield, Jr., who did the deed ; in the third, as an aider and abettor to some person unknown. If you 40' FAMOUS LEGAL ARGUMENTS. believe him guilty in either of these counts, or in either of these ways; you must convict him. It may be proper to say, as a preliminary remark, that there are two extraordinay circumstances attend- ing this trial. One is, that Richard Crowninshield, Jr., the supposed immediate perpetrator of the murder, since his arrest, has committed suicide. He has gone to answer before the tribunal of perfect infallibility. The other is, that Joseph Knapp, the supposed origi- nator and planner of the murder, having once made a full disclosure of the facts under promise of indemnity, is, nevertheless, not now a witness. Notwithstanding his disclosure and his promise of indemnity, he now Defuses to testify. He chooses to return to his original state, and now stands answerable himself, when the time shall come for his trial. These circumstances it is fit you should remember, in your investigation of the case. Your decision may affect more than the life of this defendant. If he be not convicted as principal, no one can be, nor can any one be convicted of a par- ticipation in the crime as accessory. The Knapps and George Crowninshield will be again on the community. This shows the importance of the duty you have to perform, and serves to remind you of the case and wis- dom necessary to be exercised in its performance. But certainly these considerations do not render the prison- er's guilt any clearer, nor enhance the weight of the evidence against him. FAMOUS LEGAL ARGUMENTS. 4I And now, gentlemen, in examining this evidence, let us begin at the beginning, and this first what we know independent of disputed testimony. This is a case of circumstantial evidence. And these circumstances, we think, are full and satisfactory. The case mainly depends upon them, and it is common that offences of this kind must be proved in this way. Midnight assassins take no witnesses. The evidence of the facts relied on has been somewhat sneeringly denominated, by the learned counsel, "circumstantial stuff," but it is such stuff as dreams are made of. Why does he not rend this stuff ? Why does he not scatter it to the winds? He dismisses too summarily. It shall be my business to examine this stuff, and try its cohesion. The letter from Palmer at Belfast, is that no more than flimsy stuff? The fabricated letters from Knapp to the committees and to Mr, White, are they nothing but stuff ? The circumstance, that the housekeeper was away at the time the murder was committed, as it was agreed she would be, is that, too, a useless piece of the same stuff? The facts, that the key of the chamber door was taken out and secreted ; that the window was unbarred and unbolted, are these so slightly and so easily dis- posed of ? It is necessary, gentlemen, to settle now, at the com- mencement, the great question of a conspiracy. If 42 FAMOUS LEGAL ARGUMENTS. there was none, or the defendant was not a party, then there is no evidence here to convict him. If there was a conspiracy, and he is proved to have been a party, these two facts have a strong bearing on others, and all the great points of inquiry. The- defendant's coun- sel take no distinct ground, as I have already said, on this point, either to admit or to deny. They choose to confine themselves to a hypothetical mode of speech. They say, suppose there was a conspiracy, non seguitur, that the prisoner is guilty as principal. Be it so. But still, if there was a conspiracy, and if he was a conspirator, and helped to plan the murder, this may shed much light on the evidence which goes to charge him with the execution of that plan. We mean to make of the conspiracy ; and that the defendant was a party to it; and then to draw all just inferences from these facts. Let me ask your attention, then, in the first place to those appearances, on the morning after the murder, which have a tendency to show that it was done in pur- suance of a preconcerted plan of operation What are they? A man was found murdered in his bed. No stranger had done the deed, no one unacquainted with the house had done it. It was apparent that some- body within had opened, and somebody without had entered. There had obviously and certainly been con- cert and co-operation. The inmates of the house were not alarmed when the murder was perpetrated. P'AMOUS LEGAL ARGUMENTS. 43 Assassin had entered without riot or any violence. He had found the way prepared before him. The house had been previously opened. The window »was unbar- red from within, and its fastening unscrewed. There was a lock on the door of the chamber in which Mr. White slept, but the key was gone. It had been taken away and secreted. The footsteps of the murderer were visible out doors, tending toward the window. The plank by which he entered the window still remained. The road he pursued had been thus pre- pared for him. The victim was slain, and a murderer had escaped. Everything indicated that somebody within had operated with somebody without. Every- thing proclaimed that some of the inmates, or some- body having access to the house, had had a hand in the murder. On the face of the circumstances, it was apparent, therefore, that this was premeditated, con- certed murder; that there had been a conspiracy to commit it. Who, then, were the conspirators ? If the Knapps and the Crowninshields were not the conspirators in this murder, then there is a whole set of conspirators not yet discovered. Because, independ- ent of the testimony of Palmer and Leighton, independ- ent of all disputed evidence, we know from uncon- troverted facts, that this murder was, and must have been, the result of concert and co-operation between two or more. We know it was not done without plan and deliberation ; we see, that whoever entered the 44 FAMOUS LEGAL ARGUMENTS. house, to strike the blow, was favored and aided by someone who had been previously in the house, with- out suspicion, and who had prepared the way. If the Knapps and the Crowninshields, then, were not the conspirators, who were? Joseph Knapp had a motive to desire the death of Mr. White, and that motive has been shown. He was connected by marriage with the family of Mr. White. His wife was the daughter of Mrs. Beckford, who was the only child of a sister of the deceased. The deceased was more than eighty years old, and had no children. His only heirs were nephews and nieces. He was supposed to be possessed of a very large fortune, which would have descended, by law, to his several nephews and nieces in equal shares ; or, if there was a will, then according to the will. But as he had two branches of heirs, the children of his brother, Henry White, and of Mrs. Beckford, each of these branches, according to the common idea, would have shared one-half of his property. This popular idea is not legally correct, but it is common, and very probably was entertained by the par- ties. According to this idea, Mrs. Beckford, on Mr. White's death without a will, would have been entitled to half of his ample fortune; and Joseph Knapp mar- ried one of her three children. There was a will, and this will gives the bulk of the property to others ; and we learn from Palmer that one part of the design was to destroy the will before the murder was committed. FAMOUS LEGAL ARGUMENTS. 4$ There had been a previous will, and that previous will was more, or believed to have been more, favorable than the other to the Beckford family. So that, by- destroying the last will, and destroying the life of the testator at the same time, either the first and more favorable will would be set up, or the deceased would have no will, which would be, as was supposed, still more favorable. But the conspirators not having suc- ceeded in obtaining and destroying the last will, though they accomplished the murder, that will being found in existence and safe, and that will bequeathing the mass of the property to others, it seems at the time impossible for Joseph Knapp, as for anyone else, in- deed, but the principal devisee, to have any motive which should lead to the murder. The key which un- locks the whole mystery is the knowledge of the inten- tions of the conspirators to sell the will. This is derived from Palmer, and it explains all. It shows the motive which actuated those, against whom there is much evidence, but who, without the knowledge of this intention, do not seem to have had a motive. This intention is proved, as I have said, by Palmer ; and it is so congruous with all the rest of the case, it agrees so well in all facts and circumstances, that no man could well withhold his belief, though the facts were stated by a still less credible witness. When we look back, then, to the state of things im- mediately on the discovery of the murder, we see that 46 FAMOUS LEGAL ARGUMENTS. suspicion would naturally turn at once, not to the heirs- at-law, but to those principally benefited by the will. They, and they alone, would be supposed or seem to have a direct object for wishing Mr. White's life to be terminated. The counsel say that they might safely admit that Richard Crowninshield, Jr., was the perpetrator of this murder. But how could they safely admit that ? If that were admitted, everything else would follow. For why should Richard Crowninshield, Jr., kill Mr. White? He was not his heir, nor his devisee ; nor was he his enemy. What could be his motive? If Richard Crowninshield, Jr., killed Mr. White, he did it at some- one's procurement, who himself had a motive. And who, having any motive, is shown to have had any intercourse with Richard Crowninshield, Jr., but Joseph Knapp, and this principally through the agency of the prisoner at the bar? It is the infirmity, the distressing difficulty of the prisoner's case, that his counsel cannot and dare not admit what they yet cannot disprove, and what all must believe. He who believes, on this evidence, that Richard Crowninshield, Jr., was the immediate murderer, cannot doubt that both the Knapps were conspirators in that murder. The coun- sel, therefore, are wrong, I think, in saying they might safely admit this. The admission of so important and so connected a fact would render it impossible to con- FAMOUS LEGAL ARGUMENTS. 4/ tend further against the proof of the entire conspiracy, as we state it. As far back as January this discussion began. Mr. Webster here went into a minute discussion of the evidence in the case to prove a conspiracy. I shall now proceed on the supposition, that it is proved that there was a conspiracy to murder Mr. White, and that the prisoner was a party to it. The second and the material inquiry is, was the pris- oner present at the murder, aiding and abetting therein ? This leads to the legal question in the case. What does the law mean, when it says, that, in order to charge him as a principal, " he must be present aiding and abetting in the murder ?" In the language of the late Chief Justice, " It is not required that the abettor shall be actually upon the spot when the murder is committed, or even in sight of the more immediate perpetrator of the victim, to make him a principal. If he be at a distance, co- operating ill the act, by watching to prevent relief, or to give an alarm, or to assist his confederate in escape, having knowledge of the purpose and object of the assassin, this in the eye of the law is being present, aid- ing and abetting, so as to make him a principal in the murder." " If he be at a distance co-operating." This is not a distance to be measured by feet or rods ; if the intent to lend aid combine with a knowledge that the murder 48 FAMOUS LEGAL ARGUMENTS. is to be committed, and the person so intending be so situate that he can by any possibility lend this aid in any manner, then he is present in legal contemplation. He need not lend any actual aid ; to be ready to assist is assisting. There are two sorts of murder; the distinction be- tween them is of essential importance to bear in mind: I. Murder in an affray, or upon sudden and un- expected provocation. 2. Murder secretly, with a deliberate, predetermined intention to commit the crime. Under the first class, the question usually is, whether the offence be murder or manslaughter, in the person who commits the deed. Under the second class, it is often a question whether others than he who actually did the deed were present, aiding and assisting therein. Offences of this kind ordinarily happen when there is nobody present except those who go on the same design. If a riot should happen in the court house, and one should kill another, this may be mur- der, or it may not, according to the intentions with which it was done ; which is always matter of fact to be col- lected from the circumstances at the time. But in secret murders, premeditated and determined on, there can be no doubt of the murderous intention ; there can be no doubt, if a person be present, knowing a murder is to be done, of his concurring in the act. His being there is a proof of his intent to aid and abet ; else why is he there-? FAMOUS LEGAL ARGUMENTS. 49 It has been contended, that proof must be given that the person accused did actually afford aid, did lend a hand in the murder itself; -and without this proof, although he may be near by, he may be pre- sumed to be there for an innocent purpose ; he may have crept silently there to hear the news, or from mere curiosity to see what was going on. Preposter- ous, absurd ! Such an idea shocks all common sense. A man is found to be a conspirator to commit a mur- der ; he has planned it ; he has assisted in arranging the time, the place, and means, and he is found in the place, and at the time, and yet it is suggested that he might have been there, not for co-operation and concur- rence, but from curiosity ! Such an argument deserves no answer. It would be difficult to give it one, in decorous terms. Is it not to be taken for granted, that a man seeks to accomplish his own purposes ? When he has planned a murder, and is present at its execution, is he there to forward or to tlAvart his own design ? Is he there to assist, or there to prevent? He may be there from mere " curiosity " ! Curiosity to witness the success of the execution of his own plan of mur- der ! The very walls of a court house ought not to stand, the ploughshare should run through the ground it stands on, where such an argument could find tol- eration. No doubt the law is, that being ready to assist is assisting, if the party has the power to assist, in case 50 FAMOUS LEGAL ARGUMENTS. of need. It is so stated by Foster, who is a high authority. " If A happeneth to be present at a mur- der, for instance, and taketh no part in it, nor en- deavoreth to prevent it, nor apprehendeth the mur- derer, nor leveyeth hue and cry after him, this strange behavior of his, though highly criminal, will not of itself render him either principal or accessory." " But if a fact amounting to murder should be committed in prosecution of some unlawful purpose, though it were but a bare trespass, to which A in the case last stated had consented, and he had gone in order to give assist- ance, if need were, for carrying it into execution, this would have amounted to murder in him, and in every person present and joining with him. " If the act was committed in prosecution of the original purpose which was unlawful, the whole party will be involved in the guilt of him who gave the blow. For in com- binations of this kind, the mortal stroke, though given by one of the party, is considered in the eye of the law, and of sound reason, too, as given by every individual present and abetting. The person actually giving the stroke is no more than the hand or instrument by which the others strike." The author, in speaking of being present, means actual presence; not actual in opposition to constructive, for the law knows no such distinction. There is but one presence, and this is the situation from which aid, or supposed aid, may be rendered. FAMOUS LEGAL ARGUMENTS. 5 1 You are to consider the defendant as one in the league, in the combination to commit the murder. If he was there by appointment with the perpetrators, he is an abettor. The concurrence of the perpetrator in his being there is proved by the previous evidence of the conspiracy. If Richard Crowninshield, for any pur- pose whatsoever, made it a condition of the agreement, that Frank Knapp should stand as backer, then Frank Knapp was an aider and abettor ; no matter what the aid was, or what sort it was, or degree, be it ever so little ; even if it were to judge of the hour when it was best to go, or to see when the lights were extinguished, or to give an alarm if anyone approached. Now as to the facts. Frank Knapp knew that the murder was that night to be committed ; he was one of the conspirators, he knew the object, he knew the time. He had that day been to Wenham to see Joseph, and probably to Danvers to see Richard Crowninshield, for he kept his motions secret. He had that day hired a horse and chaise of Osburn, and attempted to conceal the purpose for which it was used ; he had intentionally left th& place and the frice blank on Osburn's books. He went to Wenham by the way of Danvers ; he had been told the week before to hasten Dick ; he had seen the Crowninshields several times within a few days ; he had a saddle horse the Saturday night before, he had seen Mrs. Beckford at Wenham, and knew she would not return that night. She had not been away before 52 FAMOUS LEGAL ARGUMENTS. for several weeks, and probably would not soon be again. He had just come from Wenham. Every day, for the week previous, he had visited one or another of these conspirators, save Sunday, and then probably he saw them in town. When he saw Joseph on the 6th, Joseph had prepared the house, and would naturally tell him of it ; there were constant communications be- tween them; daily and nightly visitations ; to6 much knowledge of these parties and this transaction, to leave a particle of doubt on- the mind of anyone, that Frank Knapp knew the murder was to be comrriitted this night. The hour was come, and he knew it ; if so and he was in Brown street, without explaining why he was there, can the jury for a moment doubt whether he was there to countenance, aid, or support ; or for curiosity ; or to learn how the wages of sin and death were earned by the perpetrator ? The perpetrator would derive courage, and strength, and confidence, from the knowledge that one of his associates was near by. If he was in Brown street, he could have been there for no other purpose. If there for this purpose, then he was, in the language of the \z.w, present, aiding and abetting in the murder. Did the prisoner at the bar countenance this mur- der ? Did he concur, or did he non-concur, in what the perpetrator was about to do? Would he have tried to shield him ? Would he have furnished his cloak for protection ? Would he have pointed out a safe way to FAMOUS LEGAL ARGUMENTS. 53 retreat ? As you would answer these questions, so you should answer the general question, whether he was there consenting to the murder, or whether he was there as a spectator only ? One word more on this presence, called constructive presence. What aid is to be rendered ? Where is the line to be drawn, between acting, and omitting to act ? Suppose he had been in the house, suppose he had fol- lowed the perpetrator to the chamber, what could he have done? This was to be a murder by stealth; it was to be a secret assassination. It was not their pur- pose to have an open combat ; they were to approach their victim unawares, and silently give the fatal blow. But if he had been in the chamber, no one can doubt that he would have been an abettor ; because of his presence, and ability to render service, if needed. What service could he have rendered, if there? Could he have helped him to fly ? Could he have aided the silence of his movements? Could he have facilitated his retreat, on the first alarm ? Surely, this was a case where there was more of safety in going alone than with another ; where company would only embarrass. Richard Crowninshield would prefer to go alone. He knew his errand too well. His nerves needed no collateral support. He was not the man to take with him a trembling companion.. He would prefer to have his aid at a distance. He would not wish to be encum- bered by his presence. He would prefer to have him 54 FAMOUS LEGAL ARGUMENTS. out of the house. He would prefer that he should be in Brown street. But whether in the chamber, in the house, in the garden, or in the street, whatsoever is aiding in actual presence is aiding in constructive presence; anything that is aid in one case is aid in the other. If, then, the aid be anywhere, so as to embolden the perpetrator, to afford him hope or confidence in his enterprise, it is the same as though the person stood at his elbow with his sword drawn. His being there ready to act, with the power to act, is what makes him an abettor. What are the facts in relation to this presence? Frank Knapp is proved to have been a conspirator, proved to have known that the deed was now to be done. Is it not probable that he was in Brown street to concur in the murder? There were four conspirators. It was natural that some one of them should go with the perpetrator. Richard Crowninshield was to be the perpetrator ; he was to give the blow. There is no evidence of any casting of the parts for the others. The defendant would probably be the man to take the second part. He was fond of exploits, he was accus- tomed to the use of sword-canes and dirks. If any aid was required, he was the man to give it. At least, there is no evidence to the contrary of this. The prisoner has attempted to prove an alibi in two ways. In the first place, by four young men with whom he says he was in company, on the evening of FAMOUS LEGAL ARGUMENTS. 55 the murder, from seven o'clock till near ten o'clock. This depends upon the certainty of the night. In the second place, by his family, from ten o'clock after- wards. This depends upon the certainty of the time of the night. These two classes of proof have no connec- tion with each other. One may be true, and the other false ; or they may both be true or both be false. I shall examine this testimony with some attention, be- cause, on a former trial, it made more impression on the minds of the court than on my mind. I think, when carefully sifted and compared, it will be found to have in it more of plausibilty than reality. I come now to speak of the testimony adduced by the defendant to explain where he was after ten o'clock on the night of the murder. This comes chiefly from members of the family ; from his father and brothers. Mr. Webster here went into a minute discussion of the testi- mony, tending to show where Knapp was on the night of the murder. Then, gentlemen, the general question occurs : Is it satisfactorily proved, by all these facts and circum- stances, that the defendant was in and about Brown street on the night of the murder? Considering that the murder was effected by a conspiracy ; considering that two of the conspirators have accounted for them- selves on the night of the murder, and were not in Brown street ; considering that the prisoner does not account for himself, nor show where he was ; consider- ing that Richard Crowninshield, the other coTispirator 56 FAMOUS LEGAL ARGUMENTS. and the perpetrator, is not accounted for, nor shown to be elsewhere ; considering that it is now past all doubt that two persons were seen lurking in and about Brown street at different times, avoiding observation, and ex- citing so much suspicion that the neighbors actually- watched them ; considering that, if these persons thus lurking in Brown street at that hour were not the mur- derers, it remains to this day wholly unknown who they were or what their business was. By the counsel for the prisoner, much stress has been laid upon the question, whether Brown street was a place in which aid could be given, a place in which actual assistance could be rendered in this transaction. This must be mainly decided by their own opinion, who selected the place ; by what they thought at the the time, according to their plan of operation. If it was agreed that the prisoner should be there to assist, it is enough. If they thought the place proper for their purpose, according to their plan, it is sufficient. Suppose we could prove expressly that they agreed that Frank should be there, and he was there, and you should think it is not a well-chosen place for aiding and abetting, must he be acquitted ? No ! It is not what I think or you think of the appropriateness of the place ; it is what they thought at the time. If the prisoner was in Brown street by appointment and agree- ment with the perpetrator, for the purpose of giving assistancffe, if assistance should be needed, it may safely FAMOUS LEGAL ARGUMENTS. 57 be presumed that the place was suited to such assist- ance as it was supposed by the parties might chance to become requisite. If in Brown street, was he there by appointment ? Was he there to aid, if aid were necessary? Was he there for, or against, the murderer ? To concur, or to oppose? To favor, or to thwart ? Did the perpetrator know he was there, there waiting ? If so, then it follows that he was there by appointment. He was at the post half an hour; he was waiting for somebody. This proves appointment, arrangement, previous agreement ; then it follows that he was there to aid, to encourage, to embolden the perpetrator ; and that is enough. If he were in such a situation as to afford aid, or that he was relied upon for aid, then he was aiding and abet- ting. It is enough that the conspirator desired to have him there. Besides, it may be well said, that he could afford just as much aid there as if he had been in Essex street, as if he had been standing even at the gate, or at the window. It was not an act of power against power that was to be done ; it was a secret act, to be done by stealth. The aid was to be placed in a posi- tion secure from observation. It was important to the security of both that he should be in a lonely place. Now, it is obvious, that there are many purposes for which he might be in Brown street. I. Richard Crowninshield might have been secreted in the garden, and waiting for a signal. 58 FAMOUS LEGAL ARGUMENTS. 2. Or he might be in Brown street to advise him as to the time of making his entry into the house. 3. Or to favor his escape. 4. Or to see if the street was clear when he came out. 5. Or to conceal the weapon or the clothes. 6. To be ready for any unforseen contingency. Richard Crowninshield lived in Danvers. He would retire by the most secret way. Brown street is that way. If you find him there, can you doubt why he was there ? Gentlemen, I have gone through with the evidence in this case, and have endeavored to state it plainly and fairly before you. I think there are conclusions to be drawn from it, the accuracy of which you cannot doubt. I think you cannot doubt that there was a con- spiracy formed for the purpose of committing this murder, and who the conspirators were. That you cannot doubt that the Crowninshields and the Knapps were the parties in the conspiracy. That you cannot doubt that the prisoner at the bar knew that the murder was to be done on the night of the 6th of April. That you cannot doubt that the murderers of Captain White were the suspicious persons seen in and about Brown street on that night. That you cannot doubt that Richard Crowninshield was the perpetrator of that crime. That you cannot doubt that the prisoner at the bar was in Brown street on that night. FAMOUS LEGAL ARGUMENTS. 59 If there, then it must be by agreement, to counte- nance, to aid the perpetrator. And if so, then he is guilty as principal. Gentlemen, your whole concern should be to do your duty, and leave consequences to take care of themselves. You will receive the law from the court. Your verdict, it is true, may endanger the prisoner's life, but then it is to save others' lives. If the prisoner's guilt has been shown and proved beyond all reason- able doubt, you will convict him. If such reasonable doubts of guilt still remain, you will acquit him. You are the judges of the whole case. You owe a duty to the public as well as to the prisoner at the bar. You cannot presume to be wiser than the law. Your duty is a plain straightforward one. Doubtless we would all judge him in mercy. Towards him, as an individual, the law inculcates no hostility ; but towards him, if proved to be a murderer, the law, and the oaths you have taken, and public justice, demand that you do your duty. With consciences satisfied with the discharge of duty, no consequences can harm you. There is no evil that we cannot either face or fly from, but the conscious- ness of duty disregarded. A sense of duty pursues us ever. It is omnipresent like the Deity. If we take to ourselves the wings of the morning, and dwell in the uttermost parts of the sea, duty performed, or duty violated, is still with us, for our happiness or our misery. 6o FAMOUS LEGAL ARGUMENTS. If we say the darkness shall cover us, in the darkness as in the light our obligations are yet with us. We cannot escape their power, nor fly from their presence. They are with us in this life, will be with us at its dose; and in that scene of inconceivable solemnity, which lies yet farther onward, we shall still find our- selves surrounded by the consciousness of duty, to pain us wherever it has been violated, and to console us so far as God has given us grace to perform it. Verdict — Guilty. Richard Crowninshield committed suicide. George Crownin- shield proved an alibi and was discharged. John Francis Knapp and Joseph J. Knapp, Jr., were executed. Thus ended one of the most cold blooded murders in our history. WILLIAM PINKNEY. SPEECH IN THE DEFENSE OF JOHN HODGES FOR CONSTRUCTIVE TREASON — REPORTED IN 2 wheeler's CRIM. CASES— TRIED AT BALTIMORE, MAY, 1815. One of the most remarkable arguments in our history, and forever abolished the idea that such an offense could exist under our government. Mr. Pinkney addressed the court as follows : May it please your Honor: — There is no law in this prayer, for it excludes that which is the essence of the offense — intention ; and if it were otherwise, the court has no right to instruct the jury as if this were a civil case. No instance has occurred in modern times of an attempt to bind the jury in such a case by the opinion of the court. What remedy is there for the party if you err? We may appeal to a higher tribunal, it is true ; but what is the consequence ? The man is hanged and your judgment is reversed. In England, did their courts interfere in this mode in the celebrated cases of Hardy, and Home, Tooke and others ? No ; it would not have been endured. The best security for the rights of individuals is to be found in the trial by jury. But the excellence of this institution consists in its exclusive power. The jury are here judges of law and fact, and are responsible 62 FAMOUS LEGAL ARGUMENTS. only to God, to the prisoner, and to their own con- sciences. After the case is closed you may indeed advise the jury, if they ask it, or if you think proper to do so without being asked by them. But to interrupt the progress of th^ trial in the way proposed would be monstrous. Suppose the court to give the direction, I shall not submit to it as the prisoner's counsel. I will, on the contrary, tell the jury that it is not law. It is my right to do so, and in a case of blood I dare not forego the exercise of it. I trust I shall not be placed in a predicament which will thus set my duty to a man whose life is in my charge against my respect for this tribunal. I pray your honor to suffer this cause to go on in the customary and legal manner. It may be afifirmed as an universal proposition, that criminal intention is the essence of every species of crime. All indictments commence with an assertion of corrupt motives ; and in indictments for treason, the overt acts laid are to show the manner in which the wicked intention was carried into execution. In the speeches of Lord Erskine, to whom the world is so largely indebted for a correct knowledge of the princi- ples of civil liberty and the law of treason, you will find him perpetually contending, and contending with effect, that although the Crown had proved the facts charged, it had not shown the evil design, the corrupt purpose, without which the facts are nothing. Take the case of a man who, in time of war, is FAMOUS LEGAL ARGUMENTS. 63 charged with the defense of an important fortress or castle, when he surrenders to an incompetent force. What more effectual means could he have adopted to aid the enemy than the delivery of this fortress ? The books will tell you, that if he was bribed to this deser- tion of his duty, if he did it with a view to benefit the enemy, he is guilty of treason. But if pusillanimity was the cause, or if it arose from a false calculation of his own means, or the force of the enemy, he is not a traitor. You may banish him with ignominy from the ranks which he has disgraced, or try him by martial law as a coward or a fool ; but he has committed no treason. Suppose a powerful force to invade the country, to which resistance is hopeless. They levy contributions ; they do not proclaim that they will hang me if I neglect to comply with this order ; but they threaten plunder and desolation. I know they have the power to execute that threat, and I comply accordingly. Now the paying of money, or the furnishing of pro- visions, is an assistance ; it is "giving aid and comfort" much more effectually than the delivery of a few pris- oners or a deserter. Yet no man will call this treason, because there is no evidence of hostility to the interests of the country. The authorities say it is not treason. In Stone's case, the indictment charged as an overt act of adherence to the enemy, that the prisoner con- spired with others to collect intelligence within Eng- land and Ireland, of the disposition of the King's sub- 64 FAMOUS LEGAL ARGUMENTS. jects, in case of an invasion of either country, and to communicate such intelligence to the enemy. The tendency of parts of the correspondence which was given in evidence was to advise the enemy against an invasion of England by representing the improbability of its being attended with any success from the general disposition of the people. Now it was scarcely possible that such a corre- spondence could have been opened and maintained with other than corrupt motives. Yet the counsel were allowed to argue that the letters were transmitted with good intent in order to avert the danger of so great a calamity as an invasion, and the court said the jury were to judge from all the circumstances whether the intelligence had been sent with that view. My client is charged, as Stone was charged, with being an adherent ; and like him is entitled to be sheltered by his motives from the imputation df treason. The district attorney confounds the indictment which you are now trying with an indictment for levying war. I admit that it has been decided, that if a man becomes an integral part of the enemy's force, and acts with it, he necessarily levies war and is guilty of treason, unless it appears that he did so pro terrors mortis. The law will suffer no other exculpation of such conduct: it will excuse it upon no other motive. But will the gentlemen refer us to some authority which declares, that if a man, without joining the enemy so as to levy FAMOUS LEGAL ARGUMENTS. 6$ war, does, upon virtuous or even pardonable induce- ment (having no reference to the promotion of the enemy's views), that which happens or is calculated to be advantageous to the enemy, he is therefore a traitor? What is an adherent? Can he be anything less than a willing partisan, a corrupt auxiliary of the enemy? Such, at least, is the natural and ordinary import of the word ; and you cannot strain it beyond that import by the refinements of construction, to the prejudice of the accused, without reviving the ferocious and appalling doctrine of constructive treason, which once made England bleed at every pore, and stained the palace and the cottage with judicial murder. Unlike the conduct of Stone, the conduct of Hodges presents nothing ambiguous to the most zealous scrutiny. His honorable feelings and intentions are acknowl edged by all ; he was urged by the solicitation of those whom he respected ; he was led by a generous sym- pathy for the situation of one who is deservedly dear to all who know him ; he was actuated by an appre- hension by no means unreasonable, for the quiet and safety of the affrighted women and helpless children of the neighborhood, and for the security of the persons and property of the whole district. The treason of adherence cannot be committed by one whose heart is warm with all the honorable feeling of the man and the patriot. 66 FAMOUS LEGAL ARGUMENTS. This is the master key which lets you into the whole secret of this title of the criminal law. Tyrrell, who, in shooting at a deer killed the King, could not be convicted of treason. The killing was per infortunum. So, where a person non compos slays another designedly, still he is innocent, because there is no malignity in his heart. So in every homicide it is felonious, justifiable or excusable, according to the purpose with which the act was perpetrated. It is murder when it is done through malice ; manslaughter if without malice ; where it is done through misfortune, or self-defense, it is excusable, and it is justifiable when done in advancement of public justice, in obedi- ence to the laws. If the heart be uncontaminated by corrupt intentions the man is innocent, for it is motive that qualifies actions. Look at the locus in quo — the scene where the plot of this treason is laid — a hostile force, but the day before, had traversed the country in all the pride of victory. The jus belli was lord of the ascendant. The army, if such a force may deserve the name, which had been relied upon for the defense of the capitol, has been broken up and dissipated to every quarter of the compass. The country was menaced by an enemy with whom, to adopt the language of Caesar, it was easier to do than to say. If I were addressing the jury I might appeal to their love of country. I might remind them that they are administering law for pos- FAMOUS LEGAL ARGUMENTS. 6"] terity as well as for us. But I am addressing a tribunal where these considerations add their full weight, and I expect with confidence the court will vindicate the doctrines which I have had the honor to advance. At this point Duvall, C. J., delivered his opinion, but Hous- ton, J., did not entirely agree with the Chief Justice. The opinion which the Chief Justice has just deliv- ered is not, and I thank God for it, the law of the land. If you have the slightest doubt on the subject, I will undertake to remove it, to show you that the cases have been misconceived, and that the conclusions drawn from them are erroneous. No man can feel for the learned judge who has just given you his instruction, a reverence and affection more sincere than I do. But reverence and affection for him shall not stand in the way of the great duty which I owe to a fellow citizen who relies on me to shield his innocence from the charge of guilt, and his life from an attainder for treason. I had hoped that, since his motives were admitted on all hands to be entitled to praise, since the grand jury had associated with their indictment a certificate of the purity of his views, and a solemn recommendation that the prosecu- tion should be abandoned, he would at least have been left by the district attorney, and the court, to obtain from you as he could, a deliverance from the danger that encompassed him. In that hope I have been dis- appointed. , 68 FAMOUS LEGAL ARGUMENTS. As if the state depended upon the conviction of this unfortunate man, whose situation, one would think, an inquisitor might deplore, the district attorney has gone out of his way to bring down vengeance upon him ; and one of the court has told you that he is a traitor, and that you ought to find him so. In a case where justice might be expected to be softened into clemency and even to connive at acquittal, where every generous sentiment must take part with the accused, and law might be thought to fear the reproach of tyranny, if it ,should succeed in crushing him ; in such a case the established order of trial is deserted, a pernicious novelty is introduced, the court is called upon to mix itself in your deliberations, to mutilate the defense of the prisoner's counsel, to harden your consciences against the solicitations of an enlight- ened mercy, and to sacrifice a prisoner to gloomy and exterminating principles which would render the noble and beneficent system of law for which we are dis- tinguished, a hideous spectacle of cruelty and oppres- sion. For the sake of the country to which 1 belong, as well as my client, I will not only protest before you against these principles, but will examine and speak of them with freedom, restrained only by decorum which this place requires. In my argument to the court, I showed that if it be done treacherously it is treason; but if the commander act from any motive not corrupt-, no indictment can touch him. FAMOUS LEGAL ARGUMENTS. 69 In the case of Stone, which was parallel with the point, the court said expressly, if the heart be pure it matters not how incorrect the conduct. So the counsel argued and Stone was acquitted. Has any answer been given that authority? Has any been even attempted ? This indictment charges Hodges with having done certain things wickedly, maliciously and traitorously. Must not the United States prove what they allege ? When the law allows even words to be given in evi- dence as explanatory of intention to exculpate, it admits that exculpation may be made out by proof of innocent motives; that overt acts alone do not furnish a criterion ; that concomitant facts, illustrative of the state of the heart, must not be neglected. On this occasion the enemy were in complete power in the district where the transactions occurred which are complained of in the indictment. They were unawed by the thing which we called an army, for it had Hed in every direction. They were omnipotent The law of war prevailed, and every other law was silent. They menaced pillage and conflagation ; and, after they had wantonly destroyed edifices which all civilized warfare had hitherto respected, was it to be believed that they would spare a petty village which had renewed hostilities before the seal of its capitulation was dry ? There was menace — ^power to execute — probability — nay, certainty, that it would be executed. 70 FAMOUS LEGAL ARGUMENTS. How, then, can you find a wicked and treacherous motive in the breast of my cUent? There is not only the absence of any wicked motive but there is the visi- ble presence of those which are laudable ; and attach- ment to Dr. Beanes, anxiety for the defenceless people about him, a desire to preserve the country from the afflictions which hung over it. In conduct so char- acterized, so produced, we discover the operations of an excellent heart upon a mind which virtuous induce- ments could betray into error, but what way we can distort it into treason I have not yet been able dis- tinctly to learn. The conduct is in itself treasonable, says the chief justice, it necessarily imparts the wicked intention charged by the indictment. The construction makes it treason because it aids and comforts the enemy. These are strong and comprehensive positions; but they have not been proved ; and they cannot be proved until we relapse into the gulf of constructive treason, from which our ancestors in other countries have long since escaped. Gracious God ! In the nineteenth century to talk of Gontructive treason ! Is it possible that in this favored land — this last asylum of liberty —blest with all that can render a nation happy at home and respected abroad, this should be law ? No. I stand up as a man to res- cue my country from this reproach. I say there is no color for this slander upon our jurisprudence. Had I FAMOUS LEGAL ARGUMENTS. 7I thought otherwise I should have asked for mercy, not for law. I would have sent my client to the feet of the President, not have brought him, with bold defiance, to confront his accusers, and demand your verdict. He could have had a nolle prosequi, I confirmed him in his resolution not to ask it, by telling him that he was safe without it. Under these circum- stances I may claim some respect for my opinion. My opportunities for forming a judgment upon this sub- ject, I am compelled to say, by the strange turn which this cause has taken, are superior to those of the chief justice. I say nothing of the knowledge which long study and extensive practice enable me to bring to the consideration of the case. I rely upon this ; my opinion has not been hastily formed since the com- mencement of the trial. It is the result of a deliberate examination of all the authorities, of a thorough inves- tigation of the law of treason in all its forms, made at leisure and under a deep sense of a fearful responsi- bility to my client. It depends upon me whether he should submit himself to your justice or use with the chief magistrate the intercession of the grand jury, which could not have failed to have been successful. You are charged with his life and honor, because I assured him that the law was a pledge for the security of both. I declared to him that I would stake my own life for the safety of his, and I declare to you now, that 72 FAMOUS LEGAL ARGUMENTS. you have as much power to shed blood of the advocate as to harm the client whom he defends. If the mere naked fact of delivery constitute the crime of treason, why not hang the man who goes under a flag of truce to return or exchange prisoners? According to the doctrine of the chief justice, this man is equally guilty with him who stands at the bar, if you are forbidden to examine his mind, they are com- manded by the law to look only to his acts. I ask you to consider this in the spirit of Stone's case. That doctrine, I pledge myself, goes through every nerve and artery of the law. If the doctrine of the chief justice be the law of the land, every man concerned in the deeds of blood that were enacted during our recent war, was a murderer. Our gallant soldiers who had repulsed the hostile step whenever it trod upon our shores; our gallant tars who unfurled our flag, acquired for us a name and rank upon the ocean which will not soon be obliterated — these are all liable to be arraigned at this bar. These men have carried dismay and death into the ranks of the foe ; blood calls for blood. Gentlemen, this desolating doctrine would sweep us from the face of the earth. Even when we deserved to be crowned with laurels we should be stretched on a gibbet. I tremble for my children, for my country, when I reflect upon the consequences of these detesta- ble tenets which reduce indiscretion and wickedness FAMOUS LEGAL ARGUMENTS. 73 to the same level. Which of you is there that in some unguarded moment may not, with honest motives, be imprudent? Which of you can hope to pass through life without the imputation of crime, if your motives may be separated from your conduct, and guilt may be fastened upon your actions, although the heart be innocent? Gentlemen, so deeply do I feel impressed with this principle, that I know not how to leave the case with you, although at the present moment it strikes my mind in so clear a light that I know not how to make it more clear. If this damnable prosecution should prevail, it would be the duty of the district attorney to arraign Gen. Bowie, than whom a purer patriot never lived. Nay, half Prince George's country would come within its baleful influence. Yet such is the law the chief justice recommends to you. His associate does not concur with him. In this conflict of opinion I should be entitled to your verdict, but I rest the case upon more exalted grounds. I call upon you as honorable men, as you are just, as you value your liberties, as you prize your constitution, to say — and it promptly — that my client is not guilty. The jury immediately rendered a verdict of not guilty. JOHN PHILPOT CURRAN, SPEECH IN THE CASE OF EGAN VS. KINDILLAN FOR SEDUCTION. Miss Egan was a young lady of acoomplisliments, and great beauty. Mr. Kindillan was a young officer in a dragoon regiment and was first prosecuted for the offence in a criminal court and escaped through, the exertions of Mr. Curran. Mr. Curran was not entirely successful in this case. The damages, however, were brought down to £500. Mr. Curran closed for the defense as follows : My lords and gentlemen of the jury : I am in this case counsel for the defendant. Every action to be tried by a jury, must be founded on princi- ples of law ; of that, however, the court only can determine, and upon the judgment of the court, you, gentlemen, may repose with great confidence. The foundation of this action is built upon this principle of law, and this only, that the plaintiff suffered special damage by losing the service of his daughter, who has been taken away from him ; for you, gentlemen, will err egregiously, and the court will tell you, if you imagine that the law has given any retribution by way of damages for the agony which the father may suffer from the seduction of his child. However, I do not mean to make light of the feelings of a parent ; he would be a strange character, and little deserving the FAMOUS LEGAL ARGUMENTS. 75 attention of a court, who could act in that manner; to see his gray hairs brought with calamity to the grave, and yet hold him out as a subject of levity or contempt. I do no such things ; but I tell you soberly and quietly, that, whatever his feelings may be, it is a kind of misery for which the law does not provide any' remedy. No action lies for debauching or seducing a daughter, but only for the loss of her service ; at the same time over and over again, that the only ground is the special circumstance of the loss of her service — at the same time, gentlemen, I agree implicitly in the idea of letting the case go at large to you. In every injury which one man sustains from another, it is right to let all circumstances, which either aggravate or diminish the weight of it, go to the jury. This case has been stated in evidence by two persons. Miss Egan has told, I think, the most extraordinary story^ — I do not allude to her credit ; I only say I never heard so extraordinary a story, because I never heard of an instance of a young woman, decently bred, arrived at eighteen, going away with a man, after a single conversation ; having no previous acquaintance — no express promise ; abandoning her father's house, protection, and care, after two con- versations, in which there was not one word of mar- riage ; without a previous opportunity of engagement ; without a possibility of engaging her affections or seduc- ing her from her father ; she embraces the first •j6 FAMOUS LEGAL ARGUMENTS. opportunity which was given to her; therefore, indeed I am astonished. I said, gentlemen, the case ought rightly to go before you — I tell you why — circum- stances which compose the enormity of an offense of this kind can be judged by you. If you receive a man into •your house, give him access to any female in your family, and he converts that privilege to abuse her virtue, I know nothing of greater enormity. If you admit a man to your house and your table, and he avails himself of that confidence to abuse the virtue of your daughter or your wife, I know of no length to which the just indignation of a jury mightnot be car- ried. But if there be no criminality on the part of the defendant, if he was rather the follower than the mover of the transaction, his conduct may be palliated, it cannot be condemned. Look at this case, even as stated by the witness herself. Who was the seducer ? Mr. Kindillan ! Where was the single act to inspire her with a single hope, that he intended to marry her ? Why steal away from her father's house — why go to a public inn, at a common seaport, even at that age, and with that degree of understanding you see her possess ? She confesses she suspected there was no design of marriage ; that at Aungier street h-e spent a night with her, and no design of marriage ; they cohabitated week after week, and no conversation of marriage till they leave their mother country, and arrive at the Isle of Man — and then from whom does FAMOUS LEGAL ARGUMENTS. TJ it move? Not from her who might have talked even with a degree of pride, if she though he took her away from her father ; " you have robbed me of a father under the promise of becoming my husband — give me that protector ! " No_; you find it moving from him, from his apprehension of her dissatisfaction. If you can believe that, what kind of education must she have received ? She throws herself into the arms of the first officer she ever saw; fhes into a hackney coach and goes to another country, and never talks of marriage till she arrives there. To talk of the loss of a father is a very invidious subject ; every father must feel an argument of that kind. But it is not because that one man suffers, another must pay. It is in proportion to his own guilt that he must be punished, therefore it is that the law denies the right of the father to receive com- pensation. It is an injury which can rarely arise, when the father has discharged the precedent part of his duty. It is wise, therefore, that the law should refuse its sanction to an action of that sort, because it calls upon the father to guard against that event, for which he knows he can have no reparation. It guards more against the -injury by discountenancing the neglect which may give it birth ; it refuses a compensation to reward his own breach of duty. Only see what would be the consequence if the law gave its sanction to an action of this sort. This man is in the army. I am not here to. to preach about morals ; I am talking 78 FAMOUS LEGAL ARGUMENTS. to men who may regret that human nature is not more perfect than it is, but who must take men as they are. This man goes to a watering place ; he sees .this young woman, full of giddiness and levity — no vice possibly, but certainly not excusable in any fetpale ; see how she conducts herself. " Have you considered the pro- posal ? " "No," says she, "our acquaintance is too short ; but the second conversation, and she is gone. How would any of you, gentlemen, think of your child, if she picked up a young buck whom she never saw before ? What would your wife say if she was told her daughter had picked up a man she did not know ? But you know mankind — you know the world. What would you think of a woman, unmarried, who held a conversation on these terms? If at Philips- borough you addressed a young woman, with" whom not a word of marriage passed, and yet she accom- panied you without hesitation, would you suppose her a girl of family and education, or would you not rather suppose her to be one of those unfortunate, uneducated creatures, with whom a conversation very different from that of marriage takes place? This, then, is the situation of the defendant ; he yields, more seduced than seducing. It is upon this the father calls to you for damages ! For an injury committed — by whom? From what cause? From the indiscreet behavior, the defective educa- FAMOUS LEGAL ARGUMENTS. 79 tion, and neglected mind of his daughter. He can have no feeling or he would not have exposed both her and himself; or if he have any feelings, they are such as can be gratified by you, gentlemen of the jury — they are such as can be calmed by money! He can find more enjoyment in pecuniary compensation than in other species of retribution. I speak harshly— I am obliged to do so ; I feel it. It is to be decided by you with liberality and justice between such a father and the defendant. I am stating these things, supposing you believe her. Her story is well delivered — it would be extraordinary if it were not, when it has been so often repeated. The defendant was tried for his life, and twelve men upon their oaths acquitted him of the charge, though the fact was sworn to by her. Her suffering and her beauty may make an impression upon your minds, but you are not come here to pity, but to give a verdict ; not from passion, but which may be the^alm result of deliberation between party and party. There is a kind of false determination of mind, which makes dupes of judicial men upon cases which involve more sentiment than speculation. If you can feel any such sensation in your mind, glowing and heating to a degree of violence in which reason may be consumed, let me entreat you to guard against its falling upon the head which ought not to suffer. It is not her tears, her heavings, her sighs, that must influence your sentence. She has been 8o FAMOUS LEGAL ARGUMENTS. brought up a second time by her father and exhibited before you, the unhappy object of vice and of wanton- ness. She has thus been exhibited by that father, whose feelings are represented as so tender — an exhi- bition which ought to have been avoided by a sincere parent. But let me expose the silly trap, that you may not be the dupes of such artifice. It was a simple case ; it could have been proved without her testimony ; the leaving her father's home could have been proved by many; and of the finding her in the defendant's pos- session there was sufficient evidence, and the service could be proved as well by any person as herself ; what his conduct was appears by her own evidence ; she goes away with a man — he is seized and called upon to marry her under the terror of a prosecution for his life, a species of inducement such as was never heard of. Let it not be told that a case of this kind — that the unsolicited elopement of a young, unfortunate woman yielding to criminal desires, going off with an officer upon a first acquaintance, is an example to be held up by a court and jury, or to be sanctioned by a verdict; that a loose girl, coming back from the cloyed appetite of her paramour, should make welcome her return to her father's house by the golden showers of compensa- tion. If you wish to hold up examples to justify elopements of your children, establish it by your ver- dict and be answerable for the consequences ; you will FAMOUS LEGAL ARGUMENTS. 8l resolve yourselves into a fund for unportioned wantons, whose fathers will draw upon you for fortunes ; you will establish an example. I am not ashamed to be warm — I do not sell my warmth though I may my talents ; but give me leave to tell you that an example of this kind, where no abuse of confidence can be pleaded, nor treachery alleged, would go thus far that every miserable female that paiades about your streets in order to make a miserable livelihood by the prostitution of her person, will come forward under the imposing character of a witness, because there is scarce any of them who has not a father that may bring an action. Let me warn you against another case : You will establish an example by which the needy father is encouraged, first, to force the man into mar- riage under the apprehension of a prosecution, or after- wards to compel him from the dread of a verdict, unless you think that the man could be reconciled to marry a girl he is tired of, and who has added perjury to the rest of her conduct. It is hard to talk of perjury ; but will they answer for the verdict of twelve honest men upon their oaths ? Impeach her credit because she is swearing this day to the fact in opposition to the verdict of twelve men ; she swore to it upon the prose- cution, because of terror from her father, expecting to receive death from his hands unless she warded it off by perjury. Have you not Heard her swear that he 82 FAMOUS LEGAL ARGUMENTS. forced her into the King's Bench with a knife in his hand ? After he had failed to affect the life of the defendant, he makes a desperate attempt at his prop- erty through the means of a jury — is this a case for a jury? She gdes off unsolicited, she seeks the oppor- tunity, and yet Mr. Kindillan is to be the victim ! A young man who meets a woman, goes to a tavern, and indulges his appetite at the expense of the peace, quietness, and happiness of a family, you may wish to see reformed ; but be he whose son he may, he cannot be punished in this way for such conduct. Will you lay your hands on your hearts and say whether the defendant has been more to blame than Miss Egan herself? She has suffered much — her evidence shows it ; at first from her terror of her father, now in pre- serving her consistency, to see her exposed as she was on the table. But has the defendant suffered nothing? Is suffering nothing to be put in fear of his life? To have the horrors of a prison to encounter? Is it noth- ing, what he must have suffered in point of property? He comes now to resist the last attempt, after all the others, to drive, him by robbing of his property, to marry the daughter. Would you, gentlemen, advise your sons to marry under such circumstances? I put it boldly to you — answer it, and your answer shall be your verdict. After ten weeks' voluntary cohabitation would you advise him to marry, or would you ensure a reasonable prospect of conjugal fidelity afterwards ? FAMOUS LEGAL ARGUMENTS. 83 Let me not take up your time ; we will call witnesses to discredit what she has sworn ; let me say in excuse for her, for what she said upon her oath, that shp came forward under the terror of her father's power. Certain it is, that a sense of female honor should not have had more influence upon her when in the other courts, where she was vindicating herself, than here where she comes to put money into her father's pocket. The consequence of large damages is this: You will encourage every man to neglect the education of his child ; making a fortune by dropping a seed of immor- ality in the mind of the female, which may ripen into that tree of enormity, that will be cut down, not to be cast into the fire, but for the father's benefit. A girl of eighteen, whose father forced her upon this table, whose sufferings have been brought upon her by the leprosy of her morals, is not to be countenanced. If you wish to point out the path to matrimony, though dishonor, and you think it better that your daughter should be led to the altar from the brothel than from the parent's arms, you may establish that by your verdict. If you think it better to let the unfortunate author of her own misery benefit by the example she may hold up, you will do it by such a verdict as your understanding, not your passion, dictates. DANIEL WEBSTER. ARGUMENT IN THE CASE OF OGDEN VS. SAUNDERS, UNITED STATES SUPREME COURT, JANUARY TERM, 1 827. This case is not selected for its rhetorical display, nor is it aa famous as his wonderful argument in the Dartmouth College case, which we take for granted every reader of this is familiar. But the chain of argument leading up to the conclusions reached indicates the perfect reasoning and clear statements and the magnificent power and force of his understanding. Mr. Wehster closed the case for the respondent as follows : May it please the Court : The question arising in this case is not more important, nor so important even, in its bearing on in- dividual cases of private right, as in its character of a public political question. The Constitution was in- tended to accomplish a great political object ; its design was not so much to prevent injustice or injury in one case, or in successive single cases, as it was to make general salutary provisions, which, in their operation, should give security to all contracts, stability to credit, uniformity among all the states in those things which materially concern the foreign commerce of the country, and their own credit, trade, and inter- course with each other. The real question is whether the Constitution has not, for general political purposes, ordained that bankrupt laws should be established only FAMOUS LEGAL ARGUMENTS. 8$ by national authority? We contend that such was the intention of the Constitution , an intention, as we think, plainly manifested in several of its provisions. The Act of New York, under which this question arises, provides that a debtor may be discharged from all his debts, upon assigning his property to trustees for the use of his creditors. When applied to the dis- charge of debts contracted before the date of the law, this court has decided that the Act is invalid. The Act itself makes no distinction between past and future debts, but provides for the discharge of both in the same manner. In the case, then, of a debt already existing, it is admitted that the Act does impair the obligation of contracts. It is not merely that the Legislature of the State cannot interfere by law, in the particular case of A., or B., to injure or impair rights which have become vested under contracts ; but it is that they have no power by general law to regulate the manner in which all debtors may be discharge^ from subsisting contracts ; in other words, they cannot pass general bankrupt laws to be applied in prcesenti. It is not said that they are unwise or impolitic. On the contrary, we know the general practice to be, that, when bankrupt laws are established, they make no dis- tinction between present and future debts, while all agree that special Acts, made for individual cases, are unjust, all admit that a general law made for all cases may be both just and politic. The question, 86 FAMOUS LEGAL ARGUMENTS. then, which meets us on the threshold, is this: If the Constitution meant to leave the State the power of establishing systems of bankruptcy to act upon future debts, what great or important object of a political nature is answered by denying the power of making such systems applicable to existing debts ? The argument used in Sturges vs. Crowninshield was, at least, a plausible and consistent argument. It main- tained that the prohibition of the Constitution was leveled only against interferences in individual cases, and did not apply to general laws, whether those laws were retrospective in their operation. But the court rejects that conclusion. It decided that the Constitu- tion was intended to apply to general laws or systems of bankruptcy ; that an Act providing that all debtors might be discharged from all creditors, upon certain conditions, was of no more validity than an Act provid- ing that a particular debtor. A, should be discharged on the sajne conditions from his particular creditor, B. It being thus decided that general laws are within the prohibition of the Constitution, it is for the plaintiff in error now to show on what ground, consistent with the general objects of the Constitution, he can establish a distinction which can give effect to those general laws in their application to future debts, while it denies them effect in their application to subsisting debts ; the words are, that " no State shall pass any law impairing the obligation of contracts." The general \ FAMOUS LEGAL ARGUMENTS. 8/ operatkpn of all such laws is to impair that obligation ; that is, to discharge the obligation without fulfilling it. This is admitted ; and the only ground taken for the distinction to stand on is, that, when the law was in existence at the time of the making of the contract, the parties must be supposed to have reference to it ; or, as it is usually expressed, the law is made a part of the contract. Before considering what foundation there is for the argument, it may be well to inquire what is that obligation of contract of which the Con- stitution speaks, and whence it is derived. The definition given by the court in Sturges vs. Crowninshield is sufficient for our present purpose. " A contract," say the court, " is an agreement to do some particular thing ; the law binds the party to per- form this agreement, and this is the obligation of the contract." It is, indeed, probable that the Constitution used the words in a somewhat more popular sense. We speak, for example, familiarly of a usurious contract, and yet we say, speaking technically, that a usurious agreement is no contract. But the obligation of a contract, we should under- stand the Constitution to mean, the duty of performing a legal agreement. If the contract be lawful, the party is bound to perform it. But bound by what ? What is it that binds him ? And this leads us to what we regard as a principal fallacy in the argument on the 88 FAMOUS LEGAL ARGUMENTS. Other side. That argument supposes, and insists, that the whole obligation of a contract has its origin in the municipal law. This position we contract. It must be a lawful contract doubtless ; that is, permitted and allowed ; because society has a right to prohibit all such contracts, as well as all such actions, as it deems to be mischievous or injurious. But if the contract be such as the law of society tolerates — in other words, if it be lawful — then, we say, the duty of performing it springs from universal law, and this is the concurrent sense of all the writers of authority. The duty of performing promises is thus shown to rest on universal law: and if, departing from this well established principle, we now follow the teachers who instruct us that the obligation of a contract has its origin in the law of a particular state, and is in all cases what that law makes it, and no more, and no less, we" shall probably find ourselves involved in inextrica- ble difficulties. A man promises, for a valuable con- sideration, to pay money in New York. Is the obliga- tion of that contract by the laws of that state, or does it subsist independent of those laws? We contend that the obligation of a contract, that is, the duty of performing it, is not created by the law of the particu- lar place where it is made, and dependent on that law for its existence ; but that it may subsist, and does subsist, without that law and independent of it. The obligation is in the contract itself, in the assent of the FAMOUS LEGAL ARGUMENTS. 89 parties, And in the sanction of universal law. This is the doctrine of Grotius, Vattel, Pothier and Rother- forth. The municipal law acts on the contract after it is made, to compel its execution, or give damages for its violation. But this is a very different thing from the same law being the origin or fountain (f( the contract. Let us illustrate this matter by an example. Two persons contract together in New York for the (^livery, by one to the other, of a domestic animal, or a weapon of war. This is a lawful contract, and, while the par- ties remain in New York, it is to be enforced by the laws of the State. But, if they remove with the article to Peniisylvania, there is a new law comes to act upon the contract, and to apply other remedies if it be broken. Thus far the remedies are furnished by the laws of society. But suppose the same parties to go together to a savage wilderness, or a desert island, beyond the reach of the laws of any society. The obligation of the contract still subsists, and is as perfect as ever, and is now to be enforced by another law, that is, the law of nature; and the party to whom the promise was made has a right to take by force the animal, the uten- sil, or the weapon that was promised him. The right is as perfect here as it was in Pennsylvania, or even in New York; but this could not be so if the obligation were created by the laws of New York, or were depend- ent on that law for its existence, because the laws of that State can have no operation beyond its territory. 90 FAMOUS LEGAL ARGUMENTS. Let US reverse this example. Suppose a contract to be made between two persons cast ashore on an uninhab- ited territory, or in a place over which no law of society extends. There are such places, and contracts have been made by individuals casually there, and these contracts have been enforced in courts' of law in civil- ized communities. Whence do such contracts derive their. obligations, if not from universal law? If these considerations show us that the obligation of a lawful contract does not derive its force from the particular law of the place where made, but may exist where that law does not exist, and be enforced where that law has no validity, then it follows, we contend, that any statute which diminishes or lessens its obliga- tion does impair it, whether it precedes or succeeds the contract in date. The contract having an inde- pendent origin, whenever the law comes to exist together with it, and interferes with it, it lessens, we say, and impairs, its own original and independent obligation. In the case before the court, the contract did not owe its existence to the particular law of New York ; it did not depend on that law, but could be enforced without the territory of that State, as well as within it. Nevertheless, though legal, though thus independently existing, though thus binding the party everywhere, and capable of being enforced everywhere, yet the statute of New York says that it shall be dis- charged without payment. This, we say, impairs the FAMOUS LEGAL ARGUMENTS. 9I obligation of that contract. It is admitted to have been legal in its inception, legal in its full extent, and capable of being enforced by other tribunals according to its terms. An act, then, purporting to discharge it without payment is, as we contend, an act impairing its obligation. Here, however, we rheet the opposite argument, stated on different occasions in different terms, but usually summed up in this, that the law itself is a party of the contract, and, therefore, cannot impair it. . What does this mean ? Let us seek for clear ideas. It does not mean that the law gives any particular con- struction to the terms of the contract, or that it makes the promise or the consideration, or the time of perform- ance, other than is expressed in the instrument itself. It can only mean that it is to be taken as a party of the contract, or understanding of the parties, that the contract itself shall be enforced by such laws and regu- lations, as are in being in the State where it is made, at the time of entering into it. There is no authority in adjudged cases for the plaintiff in error but the State decisions which have been cited, and, as has already been stated, they all rest on this reason, that the law is part of the contract. Against this, we contend : ist. That, if the proposition -were true, the consequence 'would not follow. 2nd. That the proposition itself cannot be maintained. If it were true that the law is to be considered as 92 FAMOUS- LEGAL ARGUMENTS. part of the contract, the consequence contended for would not follow ; because, if this statute be part of the contract, so is every other legal or constitutional provision existing at the time which affects the con- tract, or which is capable of affecting it; and especially this very article of the Constitution of the United States is part of the contract. The plaintiff in error argues in a complete circle. He supposes the parties to have had reference to it because it was a binding law, and yethe proves it to be a binding law only upon the ground that such reference was made to it. We Gome before the court alleging the law to be void, as unconstitutional ; they stop the inquiry by opposing to us the law itself. Is this logical? We propose to inquire if this law is of force to control our contract, or whether, by the Constitution of the United States, such force be not denied to it. " This contract," says one of the authorities relied on, "is to be construed as if the law were specially recited in it." Let it be so for the sake of argument. But it is also to be con- strued as if the prohibitory clause of the Constitution were recited in it, and this brings us back again to the precise point from which we departed. The constitution always accompanies the law, and the latter can have no force which the former does not allow to it. If the reasoning were thrown into the form of special pleading, it would stand thus : The plaintiff declares on his debt ; the defendant pleads his FAMOUS LEGAL ARGUMENTS. 93 discharge under the law ; the plaintiff alleges the law unconstitutional ; but the defendant says, you knew of its existence ; to which the answer is obvious and irre- sistible, I knew its existence on the statute-book of New York, but I knew, at the same time, it was null and void under the Constitution of the United States. The language of a leading decision is, '' a law in force at the time of making the contract does not violate that contract ; " but the very question is whether there be any such law "in force;" for, if the States have no authority to pass such laws, then no such law can be in force. The Constitution is a part of the con- tract as much as the law, and was as much in the contemplation of the parties. So that the proposition, if it be admitted that the law is a part of the contract, leaves us just where it found us; that is to say, under the necessity of comparing the law with the Constitu- tion, and of deciding by such comparison whether it be valid or invalid. If the law be unconstitutional, it is void, and no party can be supposed to have had reference to a void law. But the proposition itself cannot be maintained. The law is no part of the contract. What part is it? The promise? The consideration ? The condition? Clearly, it is neither of these. It is no term of the contract. It acts upon the contract only when it is broken, or to discharge the party from its obligation after it is broken. The municipal law is the force of society employed to 94 FAMOUS LEGAL ARGUMENTS. compel the performance of contracts. In every judg- ment in a suit on contract, the damages are given, and the imprisonment of the person or sale of goods awarded, not in performance of the contract, or as part of the contract, but as an indemnity for the breach of the contract. .Doubtless, parties, when they enter into contracts, may well consider both what their rights and their liabilities will be by the law, if such contract be broken ; but this contemplation of consequences which can ensue only when the contract is broken, is no part of the contract itself. The law has nothing to do with the contract till it be broken ; how, then, can it be said to form a part of the contract itself? But there are other cogent and more specific reasons against considering the: law as part of the contract, (i) If the law be part of the contract, it cannot be repealed or altered ; the insolvent law of New York, for example, authorizes the discharge of a debtor on the consent of two-thirds of his creditors. A subsequent Act requires the consent of three-fourths ; but, if the existing law be part of the contract, this latter law would be void. In short, nothing which is part of the contract can be varied but by consent of the parties; therefore, the argument runs in absurdum ; for it proves that no laws for enforcing the contract, or giving remedies upon it, can be changed or modified. If the law in question binds one party on the ground of assent to it, it binds both, and binds them until they FAMOUS LEGAL ARGUMENTS. 9$ « agree to terminate its operation. (2) If the party be bound by an implied assent to the law, as thereby making the law a part of the contract, how would it be if the parties had expressly dissented, and agreed that the law should make no part of the con- tract ? Suppose the promise to have been that the promisor would pay at all events, and not take advan- tage of the statute ; still, would not the statute operate on the whole? And does not this show that the law is no part of the contract, but something above it ? (3) If the law of the place be part of the contract, how could it be enforced, as we all know it might be, in another jurisdiction, which should have no regard to the law of the place ? Suppose the parties, after the contract, to remove to another state, do they carry the law with them as part of their contract ? We all know they do not. Or, take a common case. Some states have laws abolishing imprisonment for debt ; these laws, accord- ing to the argument, are all parts of the contract ; how, then, can the party, when sued in another state, be imprisoned contrary to the terms of the contract ? (4) The argument proves too much, inasmuch as it applies as strongly to prior as to subsequent contracts. It is founded on a supposed assent to the exercise of legis- lative authority, without considering whether that exercise be legal or illegal. The implied reference to the control of legislative power is as reasonable and as strong when that power is dormant, as while it is in 96 FAMOUS LEGAL ARGUMENTS. exercise. In one case the argument is : " The law existed ; you knew it and acquiesced." In the other it is : "The power to pass the law existed ; you knew it, and took your chance." There is as clear an assent in one instance as in the other. The true view of the matter is, that every man is presumed to submit to all power which may be lawfully exercised, over him or his right, and no one should be presumed to submit to illegal acts of power, whether actual or contingent. (5) But a main objection to this argument is, that it would render the whole constitutional provision idle and inoperative ; and no explanatory words, if such words had been added in the Constitution, could have prevented this consequence. The law, it is said, is part of the contract ; it cannot, therefore, impair the con- tract, because a contract cannot impair itself. Now, if this argument be sound, the case would have been the same, whatever words the Constitution had used. But, further, this idea, if well founded, would enable the states to defeat the whole constitutional provision by a general enactment. Suppose a state should declare, by law, that all contracts entered into therein should be subject to such laws as the legislature, at any time, or from time to time, might see fit to pass. This law, according to the argument, would enter into the contract, become a part of it, and authorize the interference of the legislative power with it; for all pur- FAMOUS LEGAL ARGUMENTS. 97 poses, wholly uncontrolled by the Constitution of the United States. So much for the argument that the law is a part of the contract. The inquiry, then, recurs, whether the law in question be such a law as the legislature of New York had authority to pass. The question is general. We differ from our learned adversaries on general principles. We differ as to the main scope and end of this con- stitutional provision. They think it entirely remedial; we regard it as preventive. They think it adopted to secure redress for violated private rights ; to us it seems intended to guard against great public mischiefs. They argue it as if it were designed as an indemnity or protection for injured private rights in individual cases of meum and tuum ; we look upon it as a great political provision, favorable to the commerce and credit of the whole country. Certainly, we do not deny its applica- tion to the cases of violated private rights. Such cases are clearly and unquestionably within its operation. And this is proved by reference to the history of the country. Commerce, credit, and confidence were the principal things which did not exist under the old Con- federation, and which it was a main object of the present Constitution to create and establish. A vicious system of legislation, a system of paper money and tender laws, had completely paralyzed industry, threatened to beggar every man of property, and, 98 FAMOUS LEGAL ARGUMENTS. ultimately, to ruin the country. The relation between debtor and creditor, always delicate, and always dangerous whenever it divides society, and draws out the respective parties into different ranks and classes, was in such a condition in the years 1787, 1788, and 1789, as to threaten the overthrow of all government ; and a revolution was menaced, much more critical and alarming than that through which the country had recently passed. The object of the new Constitution was to arrest these evils ; to awaken industry by giving security to property ; to establish confidence, credit, and commerce, by salutary laws, to be enforced by the power of the whole community. The revolutionary war was over; the country, had peace, but little domestic tranquility ; it had liberty, but few of its enjoyments, and none of its security. The Constitu- tion was, therefore, framed, as it professes, " to form a more perfect union, to establish justice, to secure the blessings of liberty, and to insure domestic tranquility." It is not pertinent to this occasion to advert to all the means by which these desirable ends were to be obtained. Some of them, closely connected with the subject now under consideration, are obvious and prominent. The objects were commerce, credit, and mutual confidence in matters of property ; and these required, among other things, a uniform standard of value or medium of payments. One of the first powers given to Congress, therefore, is that of coining FAMOUS LEGAL ARGUMENTS. 99 money and fixing the value of foreign coins ; and one of the first restraints imposed on the states is the total prohibition to coin money. These two provisions are industriously followed up and completed by denying to the states all power to emit bills of credit, or to make anything but gold and silver a tender in the payment of debts. The whole control, therefore, over the standard of value and medium of payments is vested in the general government. And here the question in- stantly suggests itself, why should such pains be taken to confide to Congress alone this exclusive power of fixing on a standard of value, and of prescribing the medium in which debts shall be paid, if it is, after all, to be left to every state to declare that debts may be discharged, and to prescribe how they may be dis- charged, without any payment at all ? We contend that the Constitution has not left its work unfinished. We contend that it is apparent it was intended to provide for two things, intimately connected with each other. These are : i — A medium for the payment of debts ; and 2 — A uniform manner of discharging debts, when they are to be discharged without payment. The arrangement of the grants and prohibitions con- tained in the Constitution is fit to be regarded on this occasion. The powers granted to Congress are enumerated one after another in the eighth section ; the principal limitations on those powers, in the ninth section ; and the prohibitions to the states, in the tenth lOO FAMOUS LEGAL ARGUMENTS. section. Now, in order to understand whether any particular power be exclusively vested in Congress, it is necessary to read the terms of the grant, together with the terms of the prohibition. Take an example from that power of which we have been speaking, the coin- age power. Here the grant to Congress is : " To coin money, regulate the value thereof, and of foreign coins." Now, the correlative prohibition on the states, though found in another section, is undoubtedly to be taken in connection with the foregoing, as much as if it had been found in the same clause. The only just reading of these provisions, there- fore, is this : " Congress shall have power to coin money, regulate the value thereof, and of foreign coins ; but no state shall coin money, emit bills of credit, 'or make anything but gold and silver coin a tender in payment of debts." These provisions respect the medium of payment, or standard of value, and, thus collated, their joint result is clear and decisive. We think the result clear, also, of those provisions which respect the discharge of debts without payment. Collated in like manner, they stand thus : " Congress shall have power to establish uniform laws on the sub- ject of bankruptcies throughout the United States ; but no state shall pass any law impairing the obligation of contracts " This collocation cannot be objected to, if they refer to the same subject matter; and that they FAMOUS LEGAL ARGUMENTS. lOI do refer to the same subject matter we have the authority of this court for saying, because this court solemnly determined, in Sturges vs. Crowninshield, that this prohibition on the states did apply to systems of bankruptcy. It must be now taken, therefore, that state bankrupt laws were in the mind of the conven- tion when the prohibition was adopted, and, therefore, the grant to Congress on the subject of bankrupt laws, and the prohibition to the states on the same subject, are, properly, to be taken and read together; and being thus read together, is not the intention clear to take from the state the power of passing bankrupt laws, since, while enacted by them, such laws would not be uniform, and to confer the power exclusively on Con- gress, by whom uniform laws could be established ? The words are general. The states can pass no law impairing contracts ; that is, any contract. In the nature of things, a law may impair a future contract, and, therefore, such contract is within the protection of the Constitution. The words being general, it is for the other side to show a limitation ; and this, it is sub- mitted, they have wholly failed to do, unless they shall have established the doctrine that the law itself is part of the contract. It may be added that the particular expression of the Constitution is worth regarding. The thing prohibited is called a law, not an act. A law, in the general acceptation, is a rule prescribed for future conduct, not a legislative interference with existing 102 FAMOUS LEGAL ARGUMENTS. rights. The framers of the Constitution would hardly have given the appellation of law to violent invasions of individual rights, or individual property, by acts of legislative power. Although, doubtless, such acts fall within this prohibition, yet they are prohibited also by general principles, and by the constitutions of the states, and, therefore, further provision against such acts was not so necessary as against other mischiefs. The most conclusive argument, perhaps, arises from the connection in which the clause stands. The words of the prohibition, so far as it applies to civil rights are, that " no state shall coin money, emit bills of credit, make anything but gold and silver coin a tender in the payment of debts, or pass any law impairing the obligation of contracts." The prohibition of attainder, and ex post facto laws, refers entirely to criminal pro- ceedings, and, therefore, should be considered as standing by itself ; but the other parts of the prohibi- tion are connected by the subject matter, and ought therefore, to be construed together. Taking the words thus together, according to their natural connection, how is it possible to give a more limited construction to the term " contracts," in the last branch of the sentence, than to the word " debts," in that imme- diately preceding? Can a state make anything but gold and silver a tender in payment of future debts? This nobody pretends. But what ground is there for distinction ? Now, by what reasoning is it made out FAMOUS LEGAL ARGUMENTS. IO3 that the debts here spoken of are any debts, either ex- isting or future, but that the contracts spoken of are subsisting contracts only? Such a distinction seems to us wholly arbitrary. We see no ground for it. Sup- pose the article, where it uses the word debts, had used the word contracts, the sense would have been the same then that it now is ; but the identity of terms would have made the nature of the distinction now contended for somewhat more obvious. Thus altered, the clause would read that no state should make any- thing but gold and silver a tender in discharge of con- tracts, nor pass any law impairing the obligation of contracts ; yet the first of these expressions would have been held to apply to all contracts, and the last to sub- sisting contracts only. This shows the consequence of what is now contended for in a strong light. It is cer- tain that the substitution of the word contracts for debts would not alter the sense ; and an argument that could not be sustained, if such substitution were made, cannot be sustained now. We maintain, therefore, that if tender laws may not be made for future debts, neither can bankrupt laws be made for future contracts. All the arguments used here may be applied with equal force to tender laws for future debts. It may be said, for instance, that, when it speaks of debts, the Constitution means existing debts, and not mere possi- bilities of future debts ; that the object was to preserve vested rights ; and that, if a man, after a tender law r04 FAMOUS LEGAL ARGUMENTS. had passed, had contracted a debt, the manner in which that tender law authorized that debt to be dis- charged became part of the contract, and that the whole debt, or whole obligation, was thus qualified by the pre-existing law, and was no more than a contract to deliver so much paper money, or whatever other article might be made a tender, as the original bargain ex- pressed. Arguments of this sort will not be found wanting in favor of tender laws, if the court yield to similar arguments in favor of bankrupt laws. We have already endeavored to maintain that one great political object intended by the Constitution would be defeated if this construction were allowed to prevail. As an object of political regulation, it was not important to prevent the States from passing bank- rupt laws applicable to present debts, while the power was left to them in regard to future debts: nor was it at all important, in a political point of view, to prohibit tender laws as to future debts, while it was yet, left to the States to pass laws for the discharge of such debts, which, after all, are little different in principle from tender laws. Look at the law before the court in this view. It provides that, if the debtor will surrender, offer, or tender to trustees, for the benefit of his cred- itors, all his estate and effects, he shall be discharged from all his debts. If it had authorized a tender of anything but money to any one creditor, though it were of a value equal to the debt, and thereupon pro- FAMOUS LEGAL ARGUMENTS. 105 vided for discharge, it would have been clearly invalid. Yet it is maintained to be good, merely because it is made for all creditors, and seeks a discharge from all debts; although the thing tendered may not be equiva- lent to a shilling in the pound of these debts. This shows again, very clearly, how the Constitution has failed of its purpose; if having in terms prohibited all tender laws, and taken so much pains to establish a uniform medium of payment, it has yet left the States the power of discharging debts as they may see fit, without any payment at all. To recapitulate what has been said, we maintain : First. That the Constitution, by its grants to Congress and its prohibition on the States has sought to estab- lish one uniform standard of value, or medium of pay- ment. Second. That by like means it has endeavored to provide for one uniform mode of discharging debts, when they are to be discharged without payment. Third. That these objects are connected, and that the first loses much of its importance if the last also be not accomplished. Fourth. That reading the grant to Congress and the prohibition in the States together, the inference is strong that the Constitution intended to confer an exclusive power to pass bankrupt laws on Congress. Fifth. That the prohibition in the tenth section reaches to all contracts, existing or future, in the same Io6 FAMOUS LEGAL ARGUMENTS. way that the other prohibition in the same sectiort extends to all debts, existing or future. Sixthly. That upon any other construction, one great political object of the Constitution will fail of its accomplishment. CHRISTOPHER GORE. SPEECH IN DEFENSE OF THOMAS O. SELFRIDGE FOR MANSLAUGHTER, IN KILLING CHARLES AUSTIN ON THE PUBLIC EXCHANGE IN BOSTON, AUGUST 4th, l8o6^MASS. SU- PREME COURT, DEC. 23rd, 1806. Mr. Gore addressed the court as follows : May it please your honor, and you, gentlemen of the jury : Permit me to ask for your candid attention and indulgence, while I addre.ss you in behalf of the defend- ant at the bar, who stands charged with the crime of manslaughter. A patient investigation of the evidence, so far as it is necessary to the attainment of the truth, a strict observance of the law of the land as it is derived from the natural character of man, as it is recorded and laid down in our books, as it has been invariably known and practiced in all civilized countries as well as in our own, and as it shall be pronounced to you by the court, with a due regard to such arguments and observations as may be founded in reason and common sense, un- biased by any previous impressions, but what shall be imposed by the law and the testimony, constitute all I have a right to expect, and be assured that, notwith- I08 FAMOUS LEGAL ARGUMENTS. standing the solicitude I may justly be presumed to feel on this occasion, it is all I have even a wish to obtain. After the most mature reflections I have been able to give to this cause, and as I trust it will appear to you when the whole transaction is exposed, 1 cannot pre- vail on my mind to raise a doubt as to the issue, how- ever important the event may be to the public justice of the country, and however interesting to the prop- erty, the freedom and character of my client; provided the cause be decided on its own real and intrinsic merits. Yet I cannot but feel some apjirehension from the vari- ous measures taken to preoccupy the public mind, nor is it surprising that I should be thus apprehensive, when I call to mind the cruel, unjustifiable and illegal con- duct which has been resorted to through the news- papers, to influence the judgment, to inflame the pas- sions, and cause such an agitation through the whole community, that its effect might be felt even here, where the rights of all require that justice, assisted by the calmest deliberation, should alone preside. Whence should be banished everything that can tend to stir or move the passions, where every feeling which can dis- turb the judgment or influence the imagination ought to be extinguished, and no impression admitted but from the unerring voice of truth and of law, which are the same to all men and on all occasions, which bend not to the supplications of mere distress, because extreme or deplorable, nor the clamors of the few, or the many. FAMOUS LEGAL ARGUMENTS. IO9 however .overbearing in power or terrific in threat, how- ever eager and violent in their calls for the sanction of judicial authority, or their own wild and intenfiperate decrees. It will not be strange that I should feel something like apprehension, something like dismay when I be- hold the effect of this incitement in the immense multi- tude that throng around, and the crowd assembled in this court. IVlany, no doubt, are brought here by the most laudable motives, on a case the most solemn, affecting an individual in the most tender part, involv- ing every interest that can be dear to man. If any be here with other views, I am sure they have seen, I am sure they will see nothing in the conduct and decision of this cause, but what will convince them of this irre- fragable truth, that the liberties, life, reputation and property of every man, essentially and mainly depend on the impartial administration of justice; and this is true at all times and on all occasions, whatever passion or prejudice, or party spirit itself, may whisper to the contrary, or urge as an exception. On the impartial administration of justice, I repeat, depends at all times and on all occasions the liberties, life, reputation and property of man, and in the very best of times, it is the best reliance, and only solid foundation for the rights of all men. In evil times, which sooner or latter befall every comniunity, it will be found the only protection for the no FAMOUS LEGAL ARGUMENTS. possessions of the rich against the grasp of tjie needy, and the violence of the profligate ; the only safeguard and shield for the rights of the poor and oppressed against the insolence of wealth and power; may we not therefore indulge the hope, that all men, of whatever sect or party, persuaded of this truth, which will be found the more apparent, the more it is reflected on, will bring to the altar of public justice their passions and prejudices however warmly they may have excited the one, or closely they may have clung to the other, as a tribute and willing sacrifice for their own good and that of their country. From the nature and circumstances of this case, known as they were or would have been, at the moment of this dreadful catastrophe, which we all deplore, from the age and relation of the deceased to the cause which produced the, fatal event, the subject of our present inquiry — the most unfavorable conclusions were made against my client. The deceased was young, just emerging from a state of pupilage, to a state of man- hood, glowing in all the bloom of youth and pride of strength, to behold him of graceful and well propor- tioned form, of athletic muscle and of nervous arm, in a moment stretched lifeless on the ground, his heart's blood gushing in copious streams from his manly face and heart, called forth the commisseration and regret of every beholder. These feelings almost as instantly changed to resentment against him who was supposed FAMOUS LEGAL ARGUMENTS. Ill to have done the deed — for of the hundreds, I may say thousands, who saw the last part of this tragic scene, there are not ten, perhaps not five, who saw the whole transaction, and witnessed the necessity imposed on the defendant, with which he could neither equivocate nor compromise, of preserving his own life at every expense of him who assailed it. And yet, even of these, some hurried away by the impulses of the instant, and catching the contagion of other men's pas- sions, may have surrendered their judgment to their emotions, and have joined with others in the general execration of the deed, and blaming the conduct of the defendant, have found or thought they found an apology for this strange abandonment of their reason, by assuming the doctrine, that no man can innocently spill the blood of another. This is a position unsup- ported by any law, human or divine ; contradicted by the nature of man and the very purposes of his creation. I shall contend, and I have too much respect for those I address, to doubt of proving, that every individual has not only the right, but is in duty bound to defend his own life at every hazard and expense of him who assaults him. The principle of self defense is founded in the nature and the constitution of man. It is indis- pensable to, and inseparable from his character. It is not derived from books, nor from the institutions of civil society, though they confirm it. It is born and created with us, co-existent with the first germ of life ; 112 FAMOUS LEGAL ARGUMENTS. conceived, felt, and apparent in the first dawn of being, and continues the same through all the stages, relations and conditions of human existence. Without this right, and without its exercise, whenever the occasion arises, man could perform no duties and enjoy no rights. He could not discharge even those duties imposed on him by a state of nature, neither could he perform those duties created by, and incurred in a state of society. If this be true, and that it is, is so self-evident that none will or can deny it, the conse- quence indisputably follows, that a man has not only a right, but is in duty, a duty which he owes to him- self, society and his maker, bound to defend and pro- tect his own life by all the means in his power, at every hazard and expense of the life of him who assaults him, and that whatever the results may be, they are imput- able not to him who imposed the necessity. The institutions of civil society are made not only for the whole, but for every part, as well as the whole, and to confirm those rights derived from nature, and which are necessary for the performance of those duties im- posed on man by the laws of that civil society itself. The first and fundamental principle in every free gov- ernment is, that obedience to the government and protection to the subject are reciprocal, and whenever statutes are made to abridge so essential and natural a right as that of self-defense, they are on this condition implied, as strongly as if expressed in language the ^ FAMOUS LEGAL ARGUMENTS. II3 most forcible, that the government can and will by its laws afford complete and perfect protection. The civil and subordinate rights the subject is forbidden to defend by force, because the laws of society hold out restoration if deprived of them, or a full indemnity for the injury sustained by their loss. Now life once taken away cannot be restored, and for the privation of being there is no indemnity. It follows, therefore, that society acknowledges that every man is ordered and bound to protect his own life when the government cannot do it for him, at every hazard and expense of the life of him who assaults it. Vain and absurd, nay, impracticable would be that statute which would demand of a man to wait decision of a court of law, when the uplifted hand of violence was ready to end his days, to sink him into the earth, far beyond the reach of any earthly tribunal. I have said that the laws of civil society admit and confirm this right of self-defense. They stop not here ; they go further. The institu- tions of civil society authorize and justify a man in taking the life of another, who shall attempt to enter his house in the night. They justify the taking the life of him who shall attempt to rob of the smallest mite of property. The law excuses the man who shall take the life of another on an apparent, though not real necessity of defending his own. I wish to bring before you the single fact, the circum- 114 FAMOUS LEGAL ARGUMENTS. Stance of wearing a pistol, distinct from any relation to the particular state of the defendant, or the reason which, had the law been as is pretended, might and would have justified him in wearing an instrument of this sort. There is no law, written or unwritten, no part of the statute or common law of our country which denies to a man the right of possessing or wearing any kind of arms. I say there is no such law, and in every free society a man is at liberty to do that which the law does not interdict, nor can the doing that which is not forbidden be imputed as a crime. But it may be again said, as it has been already, that possessing a pistol is evidence of malice. If it be lawful to possess and wear such an instrument, it would be unjust in the highest degree to make it, unconnected with anything else, evidence to change another act, lawful in itself, into an act criminal and unlawful. For instance, it ought not, in the opinion of any court or jury, change a justifiable homicide into manslaughter, or man- slaughter into murder. I will attempt to illustrate this by putting one or two cases. Every man has a right to possess military arms of every sort and kind, and to furnish his rooms with them. Suppose a man occupying a house thus fur- nished, a neighbor comes in, and from some warm con- versation an affray ensues, the owner glances his eye bn his sword, snatches it from where it hung and destroys his neighbor. But for this possession it would, I pre- FAMOUS LEGAL ARGUMENTS. IIS sume, under such circumstances, be manslaughter ; can that possession be so tinctured with criminality as to render this crime of manslaughter, murder? If.so, do but alter the case. Suppose the visitor, not the occupier of the house, to cast his eye on the sword, and to use the same in- strument in the destruction of his opponent, would he be guilty of manslaughter only? The like fact com- mitted by one man would then, be murder, and by another only manslaughter. Can the mere circum- stance of the not being owner of the instrument used, change the act from murder to manslaughter? Further, a man about to travel a road infested with robbers, and knowing it is lawful for him to kill another who attempts to rob him, arms himself with a pistol ; on the road he is attacked, by a person who means to rob him, on which, in the exercise of his right, he uses his pistol and destroys the life of the aggressor; if the having a pistol with him be an argument against him, will not that which was a lawful act become an argument to prove it unlawful, and merely from having the precau- tion to supply himself with what the law authorizes him to carry ? Again, suppose a man having occasion to travel a road infested b^ robbers, and, for the pur- pose of defending himself and his property, that he provides himself with a pistol ; on the way to the road, or on the road, or on his return from it, he is met by a person who attacks him" without any intention of rob- Il6 FAMOUS LEGAL ARGUMENTS. bing, but with a view of assaulting his person only,' makes an attack with so much violence that his life is brought into imminent hazard, on this, he uses his pistol and destroys his assailant. Shall you draw, from the fact of his having a pistol; for the just and lawful purpose of defense against one sort of violence, and using it to another equally just and lawful, although not the object of his being so provided, an argument to turn justifiable homicide into the crime of murder? A doctrine which leads to such absurd consequences can- not be founded in truth or justice, and it is on these principles that this cause must be determined. The quality of every act must be according to the intention and design of the agent at the moment. It is by this intention and design that you must decide the quality of the act, not by the manner of doing it, or its event. So says our law, and so say the laws of God and of reason. For should a man have an instrument of death for an unlawful purpose, and be compelled to use it for one lawful and just, it would be the extreme of in- justice, so to tincture this lawful act, by an unlawful in- tention, which was never executed, as to render that criminal which was just and right in itself. For in- stance, suppose a man armed for the purpose of a duel; he meets in the way to the place of appointment a per- son who attacks him, and in defense of his own life destroys the assailant. Can you say that the having the pistol would make it a crime ? If you can say so it FAMOUS LEGAL ARGUMENTS. II/ would be to confound every principle of law and justice ; you would decide a lawful and just act to be criminal merely because an unlawful act was in- tended, which could at the worst be but a misdemeanor. I draw from these premises this inference, that you cannot make any conclusion against Mr. Selfridge from the circumstance of his having a pistol about him. It cannot be of the smallest weight. For if he had it with an intention that was lawful, it cannot give an unlawful quality to this act of homicide. If he possessed it for any other purpose not lawful, and used it for a lawful end, it will not alter this lawful act. If then you shall be satisfied that the homicide commit- ted was either justifiable, or excusable, self defense, all presumptions which may arise from Mr. Selfridge's having a pistol with him, are totally destroyed, for pre- sumptions are resorted to only in the absence of ex- press testimony. Wherever there is express evidence presumptions are necessarily excluded ; otherwise you will go into the wide field of uncertainty, when you have certainty to rely on. If then you are satisfied from all circumstances which happened at the moment of acting, that it was a lawful act of self defense, all further inquiry is precluded, and much more so all presumption or conjecture of unlawful motives, from any preceding act. This is a day of anxiety and solicitude to my client, and of interest to his counsel ; yet I can say that it is a Il8 FAMOUS LEGAL ARGUMENTS. day of humble hope and tranquility ; a day of firm con- fidence in the truth and justice of his case, for it is on these that he must depend for his acquittal, and on these alone does he wish to depend. I should say, this was to him, a day not only of con- sideration, but of joy, if joy could be presumed ta enter the heart of a man who for more than four months has been immured within the damp walls of a prison, when his constitution demanded free and open air, who required liberty for the discharge of the usual duties of life, but who felt himself at that time subject to the most unfounded calumny, yet would not from his respect to the laws of his country reply ; for though he could have replied, he did not. No speeches were made, no observations were addressed to the public, except to request that they would not prejudge hi& cause, but wait patiently for the time when he might have it in his power to state fa-irly to the world the law and facts of his case ; when he would put himself on trial by his country, which country, you, gentlemen of the jury, are ; and it is now on that law that he is will- ing to depend for acquittal. With respect to the law, it is my duty, and I have no disposition to go beyond it, to state the principles as they have been read to you from the books ; to ascertain what it is in the case, and when that is done, to state the facts, that you may apply one to the other, and come to a just issue. The law that I read to you is not of this day or of recent FAMOUS LEGAL ARGUMENTS. II9 date. It is founded in nature and in the principles of society, and without it man could not exist. Grotius says that if a person be in danger of life, or losing a limb, or a member, especially one of the highest consequence, and it be even doubtful if he can survive the loss, and there be no probability of avoiding it, the criminal person may be lawfully and instantly slain. We then come to Judge Foster, one of the ablest judges that ever sat on a British bench : He tells you, that the injured party may repel force with force, in ■defense of his person, habitation, or property, against one who manifestly endeavors, with violence and sur- prise, to commit a known felony upon either; in these cases, he is not obliged to retreat, but may pursue his adversary, till he find himself out of danger; and if ,in the conflict he happen to kill, such killing is in justifiable self defense. You have the same doctrine laid down by Lord Hale, who was one of the best and most humane of judges, as well as one of the most devout Christians that ever appeared. Both he and Hawkins support the same doctrine ; and in Hawkins it is further said, if the party assaulted can not conveniently and safely retreat, and if he kill the assailant to avoid this beating, it is justifiable homicide. This is the law from those writers. The next is Blackstone, whose doctrines have never been controverted. He tells you, that the party 120 FAMOUS LEGAL ARGUMENTS. assaulted must flee, as far as the fierceness of the assault will permit him, for it may be so fierce as not to allow him to yield a step without manifest danger of his life, or enormous bodily harm, and then in his defense he may kill his assailant. He does not put it on the question of life being in danger, but says, that where a man is in danger of any enormous bodily harm, he is not to wait till the case has happened, but has a right to kill his assailant. This forms the law of justi- fiable homicide, and is the doctrine of universal justice, as well as of our municipal law. Thus, gentlemen, I have shown from the books the principles that govern in relation to justifiable homi- cide. Having stated the law as I conceive it to be, as on reflection it will be found to be supported by the books which have been read, and as it will, I presume, be given to you by the court, I now come to state the facts, for it is my duty only to state the facts as they have appeared in evidence, without arguing upon them. In doing this, although I do not mean to go into a critical examination of the testimony you have heard from some of the witnesses, nor in the least to question their veracity, yet there is a fitness and propriety that some of them should be laid out of the way. I mean Mr. Lane. And though I have not the slightest intention of impeaching his character, yet it is manifest from the whole current of the testimony delivered, that FAMOUS LEGAL ARGUMENTS. 121 Mr. Pickman must have been right, and Mr. Lane, as well as the other witnesses who were exarhined in sup- port of his evidence, mistaken. Because Mr. Lane says that the transactions he testified to were on the brick pavement, when all the other witnesses, as well as Mr. Pickman who was with him, say the scene was in the middle of the street. I shall say no more on this point. It would be wasting time to suppose you can attach the least weight to the testimony of Mr, Lane. At this point Mr. Gore reviewed very minutely the testimony of the various witnesses in the case. I now come to the motives and to the conduct of defendant on this unhappy day. If you are of opinion that there was no felonious intent on his part, at that time, then you cannot find him guilty of manslaughter, because it must be committed with a felonious intent. If there were no felony in his mind, no crime in his heart, he must be decided by your verdict to be an innocent man. I will now trace the conduct of Mr. S. on that day: You find there had been a suit prosecuted by him, in which he was by the desire of Capt. Ingraham to sue out an execution, and deliver it to him on 'Change. Capt. Ingraham is positive that he told the defendant on Saturday or Sunday evening to get the execution ; and that he himself went twice to the Exchange for the purpose of receiving it from Mr. Selfridge. You 122 FAMOUS LEGAL ARGUMENTS. have therefore the very reason why the defendant went there;- when in the common practice of his pro- fession, it would be natural to go on the Exchange in the general course of business ; but here is a particular piece of business to meet a person by appointment ; there can therefore be no doubt that he went there for that purpose, and for that only. From the testimony offered you will further find, and particularly by the evidence of Brooks, that he is clear Mr. Selfridge's hands were behind him, and not in his pocket. Mr. Brooks stood at Clark's shop, .and observed Mr. Selfridge from the moment of his entering State street. He therefore must have seen the position of his arms best. Some of the wit- nesses suppose that his hands were in his pocket ; this was a mistake that might easily arise from not having a full view of his body. It would be difficult in some kinds of coats which have the pockets behind, to ascer- tain whether the hands were actually in them or not; but Brooks, who saw him pass first in the front, and then in the rear, must be the best qualified to deter- mine what was the actual situation of the defendant's hands. Irwin tells you that his hands were behind him ; that in this position he came down the street, but that when Austin came out from the sidewalk, Mr. Selfridge held up his left hand as if to guard his head, took his right hand from behind him, put it into his pocket, drew out a pistol, extended his arm, and fired. FAMOUS LEGAL ARGUMENTS. 1 23 It is but fair to draw this conclusion, that when wit- nesses testify positively to a fact, which other persons might not have seen, but which is neither contradicted by, nor contradicts the testimony given by others, to believe that what was seen by some of the witnesses might have escaped the observation of the others. Because if you do this, you give credit to each party without supposing either to have sworn falsely. The defendant was going down State street, not only on his own business, but on a special engagement to meet a client. True, he had notice that some per- son was to be hired to destroy or attack him. It may have been said that he could have gone to a magistrate and obtained the protection of the law, and have taken security for keeping the peace. I agree that this would have been a fair answer to the question of, what could he do? If Mr. Cabot had said, Austin is to attack you, it was, under such a circumstance, his duty to have done so. But it was not so said to him, it was merely mentioned to him that some person was to be em- ployed to destroy or beat him. He had it not then in his power to avail himself of the protection of the law by taking security, for he did not know by whom he was to be assailed. It became then, as the laws of his country could not afford him protection, a duty in him to protect his own life by all the means in his power. The particular purpose for which he had the pistol in his pocket I know not. 124 FAMOUS LEGAL ARGUMENTS. What it was is not fully in evidence. But the plain fact is this, that the defendant with a pistol in his pocket was going down to the Exchange on business, and was met by a man coming upon him like a person attacking a wild beast ; a blow was struck on his head which would have fractured his skull had it not been for the hat which he had on. What did nature, what did law and reason prompt to do on such an occasion? Was it not to make use of every means in his power to defend himself? Let me here ask what were these means? You have heard accounts of his debilitated state, his total want of muscular strength. He could not have defended himself by his hands ; he could not have got out of the way ; for he was unable to fly. You have it in evidence that Austin was on the run; he could not then have even turned round without receiving two or three blo\vs, perhaps fatal ones. What then could_hedo? That'only which he could do in defense of his life. The only remaining thing he had to do was what he was compelled to do. He took his pistol from his pocket, and after having received one blow, killed, as he was receiving another from the assailant, who would have killed him. This is the defense^ we make to the charge against Mr. Selfridge. This we contend to be the legal and proper one, of justifiable homicide to preserve his own life. If this be unwarrantable, our defense is gone. But if nature, FAMOUS LEGAL ARGUMENTS. I25 if reason, if instinct impel every created being when attacked, to make use of all the means in his power to defend his life and person, you cannot adjudge this to have been unlawful in the defendant, without reducing every one, that is assailed by a ruffian, to this dreadful alternative, of perishing by the hand of violence, or by the verdict of a jury. After this was done, Mr. Selfridge defended himself by holding up his hands. Some say he struck ; I must say, that from the testi- mony, it appears to me he did not. But allowing that he did, it was natural that he should do so. He threw his pistol it is true ; but whether at the deceased or not, does not appear. The conflict over, no violence was seen on the part of Mr. Selfridge. Nothing barbarous, nothing even like anger or rage. He went forward as if exhausted, and leaned against Mr. Townsend's shop. Some cried out, who is the rascal that has killed him ? " I," said the defendant, "am the man. I mean not to go away. I know what I have done, and am ready to answer for it to the laws of my country." When other persons, seeing a crowd assembled, and violence talked of, advised him to retire. He went off, sending for the officers of justice, that he might be ready to answer to the laws of his country, if he had offended against them. He desired Mr. Bourne to let Bell be informed where he was to be founds This was the conduct not of guilt, but of conscious innocence. 126 FAMOUS LEGAL ARGUMENTS. It is attempted to be done away by saying, that he was to have dined with Mr. Bell ; but could any man, especially a lawyer, after an act of this sort, have imagined that he might take his dinner, without inter- ruption, in a public house ? There can be no doubt, therefore, that he told where he was to be found by the sheriff of the county. True, he went away, but not to fly. It was in that awful moment, as in this, that he appealed from the passions of the people to their judgment, from their imagination to their reason, from their feelings, to their sense of justice, from their violence, to his country. You, gentlemen of the jury, are that country. It is not possible to conceive any motive to do this act, but what arose from necessity, imposed at the very instant. It is hardly in evidence, that Mr. Selfridge knew this unfortunate young man. If there had been any feelings of revenge to gratify, would he have gone on the Exchange to indulge them ? No, he would have sought some other opportunity. And what was his behavior there ? He was tranquil and calm. Look at his after conduct. It was not the result of hardness of heart, but of that conscious inno- cence which protects the man unpolluted with sin, when every friend flies from him ; which in the hour of terror and dismay whispers comfort and consolation to his soul ; for the heart which knows no crime, can be tormented with no remorse FAMOUS LEGAL ARGUMENTS. 12/ This, gentlemen, is, I believe, the whole of our story. I am not permitted, by the rules of the court to go into argument on the facts. I have barely stated the law ; not what are my notions of it, but from the books. I took special care not to state the case before the wit- nesses were examined. For it was not my wish either to exaggerate or diminish. I meant to place it on the ground of the evidence itself, and to leave, without any appeal to the passions, your minds open to receive the fair impressions from the testimony I have at- tempted to recapitulate. Having said nothing but what they testified, I have done all^the duty which in this state of the case I am at liberty to perform. I therefore leave the defendant with you, barely stating my own conviction, as a lawyer, a Christian, and a man, that he has committed no offense, either against the law of society, of religion, or of nature. That he has not, against the law of society, I bottom myself on the authorities which have been read. That he has not against the laws of religion, I infer from the duty which every created being owes to Him, who in his beneficence, brought us into existence, to defend life, by all means in his power. Not against the law of nature, for whatever theorists, or speculative men may say to the contrary, yet, when the alternative arises, whether a man must fall, or whether it must be he who assaults him ; whether he must sacrifice all his duties to God, to religion, and to society, or put to death the 128 FAMOUS LEGAL ARGUMENTS. man by whom he is assailed, nature would assert her prerogative, the aggressor must die, and the innocent man remain alive. Verdict — Not guilty. JAMES SULLIVAN. SPEECH OF THE ATTORNEY-GENERAL IN THE TRIAL OF T. O. SELFRIDGE FOR MANSLAUGHTER IN KILLING CHARLES AUSTIN ON THE EX- CHANGE IN BOSTON, AUGUST 4TH, 1806— MASS. SUPREME COURT, DECEMBER 23D, 1806. Mr. Sullivan spoke as follows : May it please your honor, and you, gentlemen of the jury : It is my official duty to close this cause on the part of the government. If I can perform this duty by a simple, accurate and intelligible arrangement of the facts, and a just and pertinent application of the legal principle by which they are governed, I shall be satisfied. I will not play the orator before you, or pretend to make a speech. If I were capable, I would not do it on this occasion. Circumstanced as I am, nothing but my duty could induce me to undertake the task. No pecuniary reward could engage me in the cause. Nothing, I repeat it, but the sense I have of my official duty and a compliance with the public expectation, could induce me to appear this day before you on this occasion. But I thank God, that through a course of what nt^ I30 FAMOUS LEGAL ARGUMENTS. be called a long life, I have had firmness to do my duty when 1 had a duty to do. The prosecution of this cause on the part of the gov- ernment has been conducted in every respect similar to prosecutions in other cases on like occasions. When it was said that one of our fellow citizens, in the open street, at noon-day, had undertaken to destroy the life of another, it was necessary to inquire by what authority he did it? What legal process or warrant of law he- had for conduct of such consequence to the public, as well as to an individual citizen? Is there any cause of wonder that on the day it happened, he should be apprehended and carried before a magistrate, who exercised the same power in this particular as he would have been obliged to do had it been the case of either of you, gentlemen of the jury, or of any other member of the community. The magistrate found the killing to have been volun- tary and not occasioned by any accident; what ought the magistrate to do ? Was he to undertake to decide the difficulties which you have to encounter in this cause ? Was he to undertake to say that the act of killing amounted to murder, or to justifiable or ex- cusable homicide ? The magistrate was bound to commit him, to take his trial, to which he is now brought. Was there any- thing wrong in this ? If there was, he had the remedy in his own power. The Supreme Court upon a habeas FAMOUS LEGAL ARGUMENTS. 13I corpus might have set him at liberty ; it is a writ of right, and would have been granted, as by law it ought, of course, if he had applied for it. If he chose to decline the application and lay in prison, he had his reasons for it. He as a lawyer must have known the consequences. Would not every other man in the community have had to suffer a like inconvenience with that sustained by the defendant under similar cir- cumstances — certainly they would. Why then this warm and eloquent address to the passions and feelings of the public? Do they expect to influence you, gen- tlemen of the jury, and divert your attention from the justness of the case by an appeal to the feebleness of his health and the weakness of his person ? Is it to injure the reputation of the officer, who, ex officio, moved the commitment of the defendant to prison, that his coun- sel apply to your compassion and tender feelings ? Be it so, but I hope that I shall continue conscientiously to discharge the duties of my public function, regard- less of every other consideration, than that of the duty which I owe to the commonwealth. It is said that a great crowd attended the court during this trial, and we are asked the reason — many, I suppose, attend from curiosity. Is it to be wondered at that a crowd attended also at the Exchange on the day that the defendant shot the young man in State street ? The human mind naturally shudders at death, and when a man destroys his fellow citizen, it naturally 132 FAMOUS LEGAL ARGUMENTS, draws the attention of all men to the fact. The in- sinuation respecting a crowd in this court room, seems to glance at party spirit, but had party spirit anything to do with the crowd that assembled on the Exchange? When one man has struck another out of being, so far as being depends upon his existence in this world ? Is it marvelous that the public attention should be on tip toe on this occasion ? Is the agitation anything more than the effect of nature's law? Is it anything more than the uniform principle of our holy revealed religion ? Is it not the voice of God ? It is true, when the crowd assembled in State street, an inquiry was made — who was the man. that did this? The defendant boldly stood forth, and said, " I am the man ; " and it appears that he raised himself in the mid- dle of the crowd to make the declaration. He had courage in the midst of this universal cry of who is the man that has done this, to stand forth and avow him- self the perpetrator. But courage is not the criterion of truth, this firmness of nerve, this unexampled bold- ness has not changed the nature of the crime, nor can it give us the law to govern the fact. Does the definition of offense or the rights of men in civil society depend on the character of individuals, or the differ- ent constitutions of men ? The question before you is this, has the government produced evidence to convince you beyond a reasonable doubt, that the defendant killed Charles Austin, in the FAMOUS LEGAL ARGUMENTS. 1 33 manner and form as set forth in the indictment ? If you are satisfied of this question, then the burthen of the cause has devolved upon you, and you must under- take it, whatever may be the consequences. If you are not satisfied of this fact, there is no further inquiry to be made, but if you are, then there is a second question. Has the defendant shown you beyond a reasonable doubt, that the fact o'f killing, independent of any previous circumstances against him, attached to it, was done in such a manner as will render the killing lawful, and excuse him from any share of guilt ? The question you have before you is, whether the defendant has proved either accident or necessity, as fully as the government has proved the fact of killing? If he has not, he is guilty of homicide as charged. Aas he proved circumstances that will reduce it to excusable homicide, or that he has done nothing but what he had a right to do? If there was any premedi- tation a share of blame attaches itself to the fact, though it were but momentary ; the law makes it a crime in that case, and it cannot be less than man- slaughter, but if the defendant has proved beyond a doubt by the evidence offered, that the fact of kill- ing, in the manner it was committed, independent of any previous circumstance attached to, or explanatory of it, was excusable homicide, yet if the government has given convincing proof of a premeditation his ex- cuse cannot avail him. 134 FAMOUS LEGAL ARGUMENTS. First, have we proved the fact of killing ? Secondly, has the defendant given evidence to justify what he has done, or to show it to be excusable from a legal necessity ? Thirdly, you will inquire whether we have given evidence of such facts and circumstances previous to the transaction as will take from the defendant all his claim of excuse and render him guilty of a felonious homicide? These three questions include every fact and princi- ple of law that can arise in the cause. They will embrace and call into examination every circumstance which has been given in evidence by the witnesses and every principle involved. This cause is an important one, and presents to our discussion a question of principles. Without fixed principles, religion itself is a delusion. Morality is a cheat. Politics are a source of oppression and cruelty, and the forms of law but the vehicle of corruption, the mask of chicane and injustice. Principles are no other but the primordial nature of things upon which systems are predicated for the use and happiness of rational nature ; without those, all is in- security and confusion ; the world is a waste, society is a curse, and life itself but a dream of misery. While religion, founded on the self existence of the Deity, and the relation of man to the Divine nature ; while morals, predicated upon the connection between man and man, as brethren ; while stubborn nature, fixed FAMOUS LEGAL ARGUMENTS. 1 35 on eternal and unchangeable laws, denies to yield to men the inflexibility of their principles, he is left to raise, for himself those systems of civil social government and jurisprudence, and in this society is left to decide for itself. When the sovereign will of the civil community has arranged these, the obligation of each member to sub- mission, becomes a moral obligation, crime results from disobedience ; to disobedience penalties must be attached. In a free government only, it is that principles, founded in the nature of social virtue, can claim the decision of what is right between man and man, or between an individual and civil society, without the corruption arising from the destruction of rights and privileges, from party distinctions, from the frauds of chicanery, incident to fictitious morals, and cunningly devised systems of religion and policy. I will not spend any more of your time by such an appeal as has been made by the counsel for the defend- ant, who have preceded me. I will not invoke you to put aside your prejudices, if you have any ; an appeal on this head is altogether nugatory, for if you will not obey the obligation, which devolves upon you from your situation, resting on your consciences by the sacred solemnity of an oath, you are not to be reasoned into it, by the powers of rhetoric ; I therefore consider it as improper to attempt it. I conceive that it must 136 FAMOUS LEGAL ARGUMENTS. necessarily follow from the circumstances of your situation, that a verdict will be given upon the facts according to the rules of law. To a jury, acquainted with the obligation of an oath, a caution against being led astray by their prejudices, is to caution them against acting corruptly and against doing willfully wrong; if their oath cannot guide their consciences, I should despair of guiding them by anything that I can say. I should have spared myself these observations as altogether irrelevant to the issue, had not the defendant's counsel gone largely and learnedly into the subject, and urged you to do your duty free from the influence of party prejudices, regardless of the clamors of newspaper writers, or addresses to the people. In this caution, the counsel for th.e government heartily concur. The misconduct of newspapers, in publishing mat- ters relative to a trial while it is pending, is to be deprecated ; so is all conversation tending to spread false reports ; yet such are the feelings of mankind ' throughout the world, that they will talk and also print on such subjects where the press is free. It is one of those alloys, which mingle with the precious metals ; better it is to enjoy the freedom of the press, though attended by this inconvenience, than to restrain it by governmental laws, as is the case in every other country. The impressions made in that way are very inconsiderable ; the enlightened minds of FAMOUS LEGAL ARGUMENTS. 137 this jury are above all considerations, arising from that source, whatever you may have heard out of doors, is left at the threshold of this sanctuary of justice, and passes by like the idle wind, and is no more regarded than the whistling of a school boy, trudging along with his satchel in his hand. As the report of this cause will probably be published, the world will judge how far your decision is made up from the testimony you have heard at this bar ; they will know how to estimate the various reports you have heard, and the newspaper clamors, and artfully devised handbills ; these, with the papers themselves, will be consigned ultimately to the neglect they deserve. One man has killed another; the laws of God, and of our government call upon you to inquire, if he can excuse himself. There is an omniscent judge before whose seat we shall all appear to answer for our conduct on this solemn day. We must, therefore, decide with purity and integrity, if we expect to avoid the judg- ment pronounced against those who corrupt the tribunals of human justice. Suppose the slander, which is said to be traced to the father of the deceased, was correct, and suppose B. , Austin to have gone forth armed with a deadly weapori in expectation of an assault from Selfridge, or his friends ; that Selfridge had made an attack on him as young Austin did on Selfridge, and Austin the father had, with the weapon (carried as Selfridge carried his) 138 FAMOUS LEGAL ARGUMENTS. killed hifn, at noon-day in a crowded street, what would be your verdict on such a case ? I flatter my- self, your verdict w6uld be same as that which you will give in this cause. This is the standard of security, this the solid tenure, by which our fellow citizens hold their equal right to public justice, ensured to us by our Constitution and our laws. If you think of our union at home, and our foreign relations, as Washington thought, and as he has writ- ten in his farewell address to our citizens, you will engrave it on the tablet of your memory, teach it to your children, and bind it as a talisman to your heart, in order to perpetuate the freedom of our common country. Is there one of you who would engage your country in foreign wars, in order to benefit a few great men who would become the leaders, as they have been the agitators of such a desperate measure ? The conse- quences of war are known to many who hear me ; never more do I wish to see the parched earth of my country drenched with the blood of my fellow men ; the tender mothers, wives and children, flying from their dwellings into the wilderness, to escape the foe You, gentlemen of the jury, are friends to the peace of your country, and therein I cordially join with you. I address you as the lovers of your country, and there is no difference in our opinions. To return again to the cause in question, I will inquire whether Selfridge's killing Austin is proved by the gov- FAMOUS LEGAL ARGUMENTS. 139 ernment. That has been clearly made manifest by the testimony. The second question is, has the defendant shown you, beyond a reasonable doubt, that the killing was done under circumstances which made it lawful, and is he excusable of blame? In this inquiry we must have some guide, some settled rule, some law, sorfie known established principles, or society no longer exists. A confused state of nature reigns, every man's arm, his art or his cunning is his own safety, and every man is the avenger of his own wrongs. Had I the sentiments expressed by my learned brother, feeble as I am, I would go forth from day to day in arms, trusting in my own arm alone, with the aid of such weapons as my strength would bear. Magistrates should become avoided, and the volumes of laws become pavements for the soles of my shoes. Many things are said by professional men, in the feelings and warmth of debate which, in their cooler moments, they would gladly retract. Upon the man- ner and measure of resentment or self defense, is there no law fixed but the different feelings of men ? Are there men, nay, a multitude of men, who have a natural right, from their feelings, and a high sense of honor to defend themselves, when and where others of less feelings could not do it in the same manner? And is this the voice of nature, which makes the exception ? Is this sense of honor, and those feelings, a privileged I40 FAMOUS LEGAL ARGUMENTS. exception to those individuals, above the rules of the gospel? Is the rule, do to others as you would be done unto, reduced to the standard, that a juror shall acquit the defendant, if he believes he should have acted himself by the same motives, or been seduced by the same temptation ? Is there, then, a distinction between the would-be nobleman and the chimney sweeper? Is there a distinction between them as to the privilege of self defense? And is the push of the sweep, at the head of his comrade, to be murder in him, whilst the would-be noble shall be allowed with his gold hilted cane, or his elegantly mounted pistol, in defense of his honor, to play a secure but mortal game, and be justified in killing, on a like provo- cation, either his friend or his foe, or, as in this case, a man he is said hardly to know? You are not, then, to determine his case by the circumstances attending it, but by the nice sense of honor of the gentlemen, or the distinction and digi;iity of his station in life. We are told that there are a number of men in society who will with their own arm vindicate their rights, and stand the guardians of their own honor. There may be such men, but I do not know them. I hope I shall not meet with any citizen who does not rely for safety on the laws of the government, and the justice of civil society. Gentlemen, not being able to fathom this abyss of troubled waters ; not having the courage and firmness FAMOUS LEGAL ARGUMENTS. I4I to cast away the guardianship of social protection, and the laws : not having an imagination that can show the lines of security beyond those of the civil government, I will yet believe the laws to be fully adequate, where we have time to apply to them ; and I will fondly sup- pose that. I am, to every possible purpose, in a state of civil society and social security. The laws may be so imperfect, for human nature is so, that the remedy may be slow, and below my wishes ; but I will not claim to be my own judge ; I will not say that I have a right to appeal to this arm to avenge an injury, whilst the law affords me a complete remedy. The defend- ant's counsel asks how he could have gone home to his wife and children, with his honor stained, by the blow he had received on the public exchange from young Austin. I put a case hypothetically : If a man of honor and great irritability of nerves, should have received a blow, could he appeal to the laws of his country without tarnishing his honor, or injuring his family? If his wife was a' virtuous woman, she would applaud his moderation, and be gratified in teaching her children to pursue a similar course through their future lives; no person would deem him disgraced by the blow, though he had not destroyed his adversary. Should we lower our notions of honor, and condescend to bring our feelings to the rules of law, we should then have to inquire, — Whether the defendant has proved beyond a reason- 142 FAMOUS LEGAL ARGUMENTS. able doubt, that the fact of killing was committed in such a manner as to render it lawful, and excuse him of all blame. In this the first inquiry is — Was the death a volun- tary killing? — that is to be decided by the weapon and manner. Was it by justifiable or legal warrant? Was it an accident? Was it on a sudden provocation? Was it on a sudden combat? Or was it done in pursuance of a design unlawful in itself, and unjustifiable by the established laws of our government? Should you Jae satisfied from the opinion of the Court, that it is of no consequence as the evidence is, whether the pistol was fired before a blow was given by the deceased, you will be much relieved ; but if that fact should be considered as important in the case, you will then have to inquire 1st. Was the assault previous to the mortal wound, 2nd. Was it at the same instant, or 3rd. Was it after the mortal stroke. In these inquiries, what shall guide you ? Are you left to the nice feelings of a man of honor, to be decided on his apprehensions of the moment, and to make a separate law in each case as it arises? — or are these established laws to guide you ? The constitution has fixed a system by which the courts of justice are to be governed: — these books which have been cited contain those laws, which are laws, though they were not made by the legislative authority ; they were made by the voice of the people ; and this, which is the highest FAMOUS LEGAL ARGUMENTS. I43 authority, has said that these books shall be the law of the land. For this I refer you to the sixth section of the sixth chapter of the constitution, where it is declared that all the laws, rules and practices in the judiciary department, which have been heretofore adopted, shall continue to be law, until they shall be altered by the general court of this commonwealth. They were brought by our ancestors from the land of slavery ; they have been wet with the mist of the red sea, washed in the waters of Jordan, and are now our garments of comfoit in the promised land; yes, in the promised land! You young men, who have only heard of the revolution, may smile at the simile, but the venerable and aged members of this community, many of whom I see around me, know what it was to have passed through the wilderness, through difficulties and dangers almost unparalleled ; those will not willingly relinquish their principles. Now we come to an examination of the testimony which has been laid before you and from which you will have to determine the degree of guilt incurred by the defendant. Mr. Sullivan here went into a minute discussion of the testi- mony of the various witnesses. I now come to a question which will fit the different shades of guilt on the various views of the fact ; was the defendant in nothing to blame in this unfortunate affair? Was he or was he not the provoker of this 144 FAMOUS LEGAL ARGUMENTS. quarrel? If he was in any wise to blame in that respect, all the books concur, that he cannot avail him- self of any circumstances, that may be set up in justifi- cation or excuse under pretense of necessity. And is there nothing to show that he promoted this quarrel? What is the nature of the advertisement he published but to provoke an assault ? That a combat of some kind was intended by the defendant is very apparent. Several of the witnesses have told you that they expected an attack by Austin upon Selfridge as the consequence of that publication. If he was to blame in provoking it, if he went out unlawfully armed with a deadly weapon concealed in his pocket expecting to be assaulted, and thereupon was assaulted under a determined resolution to shoot the person whoshould assault him and did actually kill the deceased the instant the assault was made, pusuant to a premedita- ted but concealed design; where is his ground of excuse or justification ? If he has not made out to you beyond any reasonable doubt, that he was compelled to kill young Austin in his own defense it is your duty, and you are bound by your oath to return a verdict that he is guilty. If he is not guilty of manslaughter, he is guilty of nothing on this indictment ; his being guilty of murder cannot excuse him on this issue. If on every small misadventure, or trifling assault, a man has a right to lay another dead at his feet, what nice calculations we are under a necessity to be com- FAMOUS LEGAL ARGUMENTS. 145 pelled to make. A man desirous of killing another should only go to a lawyer and inquire the degrees of assault that would bring down murder to manslaughter, and manslaughter to justifiable homicide. One man has a higher notion of honor than another; and the various notions of honor must be the graduated scale upon which a jury is to determine the true degrees of guilt on homicide. This cannot be the law of our country ; yet some authorities have been read by the defendant's counsel, to give it this coloring. I thought when they were read, they were but partially quoted. Grotius has been cited, to show that the right of self defense is what nature has implanted in every creature, without any regard to the intention of the aggressors. I suspected that this gerieral rule had some qualifications, and a little further on I find, that the danger to which the person is exposed, must be that of losing a limb, or his life, and that there must be no possibility of avoiding the misfortune otherwise. These are the circumstances that authorize him law- fully and instantly to kill the aggressor. In 4 Blackstone, 184, it is laid down as a principle, that the person who kills another in his own defense, should have retired as far as he conveniently or safely can, to avoid the violence of the assault, before he turns upon the assailant. There is a distinction in the law between a combat and a sudden affray ; a combat is when two men meet by agreement to fight. In the 146 FAMOUS LEGAL ARGUMENTS. present case the defendant appears to be within the meaning of the word combat ; for it appears he was told that there would be an assault, and to make it a combat he went armed with a loaded pistol. The same author proceeds to say, that the person shall not fictitiously appear to retire or to avoid the affray, in order to catch his opportunity of killing the assailant, but from a real tenderness of shedding his brother's blood. Apply this doctrine to the present case, and examine whether the evidence has shown to you thar the defendant entertained this tenderness in shedding the blood of young Austin. When he armed him- self with a deadly weapon, and concealed it in his pocket, in order to shoot down anyone who should assault him, can it be thought he had a tenderness against shedding human blood ? When he declined having a recourse to the laws of his country for pro- tection — when he chose to take vengeance into his own hands and perpetrated this act, can it be thought he had that tenderness which the law requires in him who shall unfortunately be driven from necessity to shed his brother's blood? If the defendant had not written the advertisement, this quarrel would not have taken place — it was that which produced it. It appears that the consequences were produced exactly as he intended they should be. Retrace the whole of the transaction, and you will see the defendant bent on a bloody purpose. But his FAMOUS LEGAL ARGUMENTS. I47 counsel tell you that he was provoked to take these measures, on account of injurious words spoken by B. Austin. Suppose it true that Austin had spoken dis- respectfully of the defendant, would it justify the defendant's going around with a loaded pistol con- cealed in his pocket ? The law holds that words either spoken or written can never justify an assault; whether Austin was to blame or not, the defendant ought not to have defended himself in this way. It is true that the reputation of a lawyer is of great importance to himself, and of some to the community. As one of the profession, I wish the order was more respectable than the conduct of its members have lately rendered it ; in that case we should not at this day have heard the outcry against them, which seems to prevail throughout the United States. If any of you, in firing a gun, should be so unfortu- nate as to kill one of your neighbors without intending it, your hearts would be too full, and you would be too affected, to vaunt in a confident manner that you were the man who had done it ; that you had done nothing more than what you intended. If the defendant had killed young Austin by accident, he must have shown some degree of agitation ; but he was cool and col- lected, and did no more than what he intended to do. This was true, or why did he carry with him a loaded pistol ? If'there is in your opinion, any degree of pre- meditation, he must be at least guilty of manslaughter. 148 FAMOUS LEGAL ARGUMENTS. I have, I think, candidly examined this case, and have done only that which appeared to be my duty to do. I did expect that the indictment would have been for murder." It ought on every principle to have been so ; there is no precedent to the contrary. The testi- mony I had heard, rendered such an indictment proper; not that I wished that he should have been con- victed of that offense, but because I thought it would furnish an opportunity for a full examination of the unfortunate event. The Grand Jury having found a bill for manslaughter only, have, in some measure, restrained us from such an inquiry, and the opportunity we might have had of conducting the trial before a full bench of the Supreme Court. I have no doubt but his Honor, the Judge who presides, will give you cor- rect directions in his charge ; but still it is not the charge of a full bench, and therefore cannot be so satis- factory, as it might have been. I ought to have no expectation either that a wrong verdict will be given, or that the verdict, be what it may, will throw the community into convulsions. Fear of consequences is an inadmissible principle in our judicial proceedings ; higher motives must urge us to our duty, and the base principle of fear can have no effect in the trial. If the defendant has suffered, or must suffer, is it not the consequence of his own fault ? And is it not right that one who avowedly raises himself above the laws, should suffer, rather than that the essential laws of FAMOUS LEGAL ARGUMENTS. I49 society, the first law of natural reason, and the law of God, promulgated by the highest sanctions, shall be set at defiance ? Gentlemen, I consign this cause to you ; to be decided according to the laws of our country, which laws his Honor will state to you from the bench ; you will decide in the presence of Him who knows all our motives, and before whom we must all soon appear and have to answer ; and in the presence of the whole human race, for the motives on which the present decision shall be formed. Verdict— Not guilty. JOHN PHILPOT CURRAN. SPEECH IN DEFENSE OF WILLIAM DRENNAN FOR THE PUBLICATION OF A SEDITIOUS LIBEL, JUNE, 1 794, Mr. Curran addressed the court as follows : My lord, and gentlemen of the jury : I am of counsel for Dr. Drennan, and I do not, for the sake of my client, regret that my state of health prevents me trespassing long on your time, or that of the court ; for my heart tells me, that if he is reduced to stand in need of any effort from talent, that it is impossible, under the circumstances of the case, that he can hope for any assistance from an advocate, where, if there is any danger of conviction it must arise from what passes in the minds of a jury, and not from anything which has passed in this court. It may be a loss to the traverser that he is not aided by the personal exertions of those who are connected with him by habit of life and uniformity of pursuits. Such a person I am not ; to him I am a perfect stranger. I never, to my knowledge, exchanged a word with him, save once in the public street. I never was under the same roof with him that I know of ; and the reason why I yielded to the ordinary application to become his counsel, was, because I had been personally FAMOUS LEGAL ARGUMENTS. ISI defamed for acting as counsel in defense of another, who was charged with the same libel. I felt that my character in the world, little as it may be, was owing all to my professional talents ; and I feel that, if a barrister can act so mean and despicable a part as to decline from personal apprehension, the defense of any man accused, he does not deserve to be heard in any court of justice. The indictment is that Dr. Drennan did publish the libel, and that he did print and publish the paper with the base and seditious intentions there stated. To this he has pleaded ; and one question to be tried is, did he, in point of fact, publish the paper ? The next upon which I shall trouble you but very little is as to the nature of the paper — whether it is a seditious libel or not ? The law of libels in this country has lately, (by the perseverance and exertions of two men — Mr. Fox and Mr. Erskine — being at last crowned with success), undergone a most fortunate change? For part of the court which I address I have in- finite regard and esteem. To extend that profession would, perhaps, be as presumptious, as it would flatter my vanity ; but let me not by this be understood to profess any contrary feeling. I merely disavow the arrogance of affecting to feel, where I have no claim to any interest. But, gentlemen, the law has taken the power of decision in those cases from the court, and vested it in 152 FAMOUS LEGAL ARGUMENTS. you. And you are not only to inquire into the fact of publication, but into the question of " libel or not." Upon the latter question I have said I would make a few observations ; but I will be frank with you, and will say, that if you have any disposition to believe the fact of publication, I would advise the traverser to prepare with a fatal facility to receive your opinion that the paper is whatever the prosecutors please to call it. For if you believe it, it must be from some perversion of mind — some gangrene of principle, with which I dis- dain to hold parlance or communication ; and this I say, from a proud conviction, that there will be no law in this country, when such monstrous facts are swal- lowed by juries, and the country disgraced by such con- viction. As to the liberty of the press, I have heard and I have read of some things relative to it lately, at which I am truly astonished. The liberty of the press is not for expressing merely argument, but to convey the feelings of personal discontent against the government, that the passions of the governors may be checked ; and if anyone is bold enough to tell them they over- bound their duty, they may be tortured into rectitude, by being held up as objects of odium, abomination, honor, or ridicule. Every man knows what is a public crime ; the maliciously pointing out grievances so as to disturb the quiet of the country ; such a crime will never find pro- FAMOUS LEGAL ARGUMENTS. 1 53 tection from a court or a jury. If the traverser did in- tend to "diffuse among tfie subjects of tfiis realm, dis- content, and suspicions of our sovereign lord the king, and his government ; disaffections and disloyalties to his person and government ; and to raise very danger- ous seditions and tumult within this kingdom," &c., he ought to be found guilty — if he did not, he is entitled to acquittal. Having said this, I dismiss the subject ; because, I trust in God so fatal an example to the liber- ties of this country, as a condemnation upon such evi- dence, will never be given. What has Carey sworn ? — that he was at a meeting on the 14th of December; that Dr. Drennan was there.; that the question was put on ^n address; that he him- self was desired to publish that address ; that the manuscript could not be given him, but that he should take it from the Dublin Journal of the next Monday.; that he sent for that paper; a great deal of his evidence went to proving the Star, but that was not read, and is out of the question. The question is, therefore, nar- rowed to the publication in the Dublin Journal ; is there any evidence that this was the paper read in the society? No. What is it ? Carey has told you — in- deed he told you the impossibility of his swearing it ; I read the address in the paper — he could not swear even to the substance, he could not tell that it was the same. Coiling and twining about me, as you saw that wretched man, he could not prove this ; therefore, all the evi- 154 FAMOUS LEGAL ARGUMENTS. dence on this part comes to this, that Dr. Drennan did produce some address in that meeting, but of what it contained you have no evidence before you. And, as to the publication in the Hibernian, the evidence is so vague that it can give no aid whatever to the former proof ; so that the evidence stops at the meeting in Blacklain. I asked Carey what address he was desired to pub- lish? He answered, that agreed to by the society; what proof have you that he did so? It will be in- geniously endeavored to impress upon your minds that a general power to publish was given by the traverser to Carey, and he thereby made himself per- sonally liable for Carey's acts. The consequences of such a doctrine as that a man could commit himself for any future publication, made without his privity, would be so wild and desperate, that it is unnecessary to do more than offer it to you in its true light. But Carey has pinned the authority to a particular publication of the particular paper read. What ques- tion are you trying? Are you trying the traverser for every possible publication which might have been sent to McDonnell's paper? Do you live in a country where such unlimited power is given to informers ? Suppose Carey to have taken from McDonnell's paper a libel which Dr. Drennan never saw — he is, by this doctrine, responsible — is it not too ridiculous ; and FAMOUS LEGAL ARGUMENTS. I 55 does it not come to this, that Carey was tied down to publish that particular paper read in the society, and no other ; has he said then that it was the same paper which appeared in the Dublin Journal ? Where is the evidence that it was the same paper, and where is the guilt of Dr. Drennan ? Suppose I were charged with committing murder, and that I had employed the crier of the court for the purpose ; if he did the act by my directions, he is guilty ; but no confession of his can be evidence against me. So the publication of McDonnell, with the authority of Dr. Drennan, might be evidence ; but no declaration of McDonnell's can be evidence. The argument is, that McDonnell admitted the fact, by giving the paper to the stamp officer ; but was this admission on oath? Is what he said' to a petty ofiGcer of stamps to be evidence against my client ? But McDonnell does not recollect this transaction — he does not, on his oath, confirm the statement by Lestrange — and yet you are desired to take Lestrange's evidence of what McDonnell did. This may be policy, to keep the abandoned informer haunting the slumbers of the innocent man ; but it is for you to consider, is such' a time as this proper for it. In the present melancholy of the public mind, how far will it heal the grief which afiflicts society ? Or, will it not rather answer the immediate and selfish objects of those whom a small gale may waft to that point, where 156 FAMOUS LEGAL ARGUMENTS. the recollection of the country and its situation will never assail their ears ? The declaration that the paper would appear in the Hibernian Journal stands on the single evidence of Carey. If he did not appear to you upon that table a perjured man, believe every word he said. This man was under two prosecutions for this and another libel ; this charge is to rest as well on his memory as his credit. He received a summons signed by the Lord Chief Justice of Ireland ! ! Do you believe, gentlemen, that Lord Clonmel's name was to it? Examine Mr. Kemmis. What is the answer ? That he thought it was — he could not answer — he was sure it was. And this man, who comes to tell of words spoken two years ago, makes this silly mistake about the Chief Justice's name. Again, " who are you ?" " I was under prosecution" — " I was a member of the society" — "I do not know whether I would have prosecuted or not, if they had kept their word." Three different things he swore as to my lord's name : — he did recollect ; next, he did not ; and, last of all, he could not tell. Does he not appear that kind of man, on whose evi- dence no man ought to be convicted? Scarce ever have I known a conviction on the mere evidence of an informer. But see what motives this man has: Under prosecution for the same crime, he has not only his own safety to consult, but the most avowed and ran- corous malice to Doctor Drennan. FAMOUS LEGAL ARGUMENTS. 1 57 If you give credit to this man, you make a fine harvest for informers ; a fine opportunity you give to every ruffian in society ; and you may go home in the comfortable conviction, that it is far from impossible that the next attack shall be on yourselves. Did you ever, gentlemen, hear of a point in which a perjured witness might be believed? Yes, there is one — when he says he is perjured. The principle is as strong in our hearts as if it had been written by the finger of that God who said, " thou shalt not bear false witness." The law of the country has said that the man once convicted of false swearing shall not a second time contaminate the walls of a court of . justice ; and it is the very essence of a jury, that if a man 'appears (though not yet marked out by the law as a perjurer) to have soiled his nature by the deliberate commission of this crime, that moment his credit shall cease with the jury — his evidence shall be blotted from their minds, and leave no trace but horror and indignation. 1 feel the hardship of their situation, when grave and learned men are brought forward to support such a proposition. I have great respect for them — for some of them I have had it my from boyish days — but this respect does not prevent my saying, that, as officers of state, their private worth is not to weigh with you. It is for their credit to deceive you. They have no power to control a prosecution — if one is commanded, they IS8 FAMOUS LEGAL ARGUMENTS. must carry it on ; and when they talk of their charac- ter, what do they say ? " If the evidence is insufficient, take a Httle of our dignity to eke it out." What their feelings are is nothing to you, gentlemen ; they may have feelings of another kind to compensate for them. As to the Society of United Irishmen, I have had the misfortune, from my strong reprobation of their conduct, to incur much contumelious animadversion. But where is their desperate purpose to be found ? Is it in the rejection of Carey's proposal to arm f Does this show their design to pull the king from the throne, or to separate countries? But it comes down to the , horrible blasphemy of reviling the police. To make their case more hideous and more aggravated, you are told of their blaspheming the sanctified police-=-the holy, prudent and economical police. Did they suppose that they were addressing the liquorish loyalty of a guzzling corporation ? Or do you suppose, gentlemen, that there is a collation of custards prepared for you when you leave the jury-box, when they wish to excite your compassion for the abused police? But it is said, that they not only attack existing establishments, but sully the character of the unborn militia, that they hurl their shafts against what was to be raised the next year. " So Gossip," says the flatterer to Timon. " What " says he, " I did not know you had children." " Nay, but I will marry shortly, and my first child shall be called Timon, and FAMOUS LEGAL ARGUMENTS. 159 then we shall be gossips. " So this wizard, Drennan, found out that a militia was to be raised the next year, and he not only abused the corporation but the police and militia. I protest I have been eighteen years at this bar, and never, until this last year, have I seen such witnesses supporting charges of this kind with such abandoned profligacy. In one case, where men were on trial for their lives, I felt myself involuntarily shrinking under your lordship's protection, from the miscreant who leaped upon the table, and announced himself a witness I had hoped the practice would have remained in those distant parts of the country where it began, but I was disappointed. I have seen it parading through the capital, and I feel that the night of unenlightened wretchedness is fast approach- ing, when a man shall be judged before he is tried — when the advocate shall be libeled for discharging his duty to his client, that night of human nature, when a man shall be hunted down, not because he is a crimi- nal, but because he is obnoxious. Punish a man in the situation of Dr. Drennan, and what do you do ? What will become of the liberty of the press? You will have the newspapers filled with the drowsy adula- tions of some persons who want benefices or commis- sions in the army ; here and there, indeed, you may chance to see a paragraph of this kind : — " Yesterday came on to be tried, for the publication of a seditious libel, Dr. Wm. Drennan. The great law l6o FAMOUS LEGAL ARGUMENTS. officer of tHe crown stated the case in the most temperate and candid manner. During his speech every man in court was in an agony of horror; the gentlem^en of the jury — many of them, from the rotation office, were all staunch whigs, and friends to government. Mr. Carey came on the table, and declared he had no malice against the traverser, and most honorably denied the assertion in his next breath. The jury listened with great attention. Mr. Curran, with his usual ability, defended him.. Mr. Wright was produced, a bloody minded United Irish- man — he declared he could not say but that Dr. Drennan was the author of the libel; and that the types were very like each other in the face. An able speech was made in reply by his majesty's counsel. He said with the utmost propriety that the jury knew little of him., if they sup- posed him to prosecute without a perfect conviction of the traverser's guilt, that Mr. Curran s great abilities had been spent in jest upon the subject; that the perjurits were mere little inconsistencies, the gentleman having much on his mind. The jury — a most worshipful, wor- thy jury, retired for a few minutes, and returned with a verdict of guilty, much to the satisfaction of the public." To this sort of language will you reduce the freedom of public discussion, by a conviction of the traverser ; and if the liberty is destroyed for a supposed abuse, this is the kind of discussion you will have. Verdict — Not guilty. WILLIAM A. BEACH. ARGUMENT FOR THE PLAINTIFF IN THE CELEBRATED TILTON-BEECHER CASE. This famous argument lasted ten days. His oratory is full of stirring passages, wtiioh are delivered in a manner that seldom fails to stir enthusiastic interest among his hearers. Regret that for want of space we are only able to give his opening and closing remarks. The jury in this case after eight days delib- eration failed to agree. Mr. Beach began his argument as follows : May it please your honor : At last, gentlemen, Theo. Tilton has the opportunity of a vindication in a court of law. It is the first opportunity. Environed with difficulities, and beaten upon by a tempest of (falumny and reproach, unparal- leled in severity and in effect, pursued by the power of a man whom the genius of Samuel Wilkeson has discov- ered to be the greatest man on all the earth, aided by the organized persecution of a great church, Theodore Tilton was hounded to his ruin The only judgment ever passed upon his case, the only hearing ever given to it, was before a tribunal selected from Plymouth Church by this defendant, with great care, with great perception, with great regard to the qualities and the relations of those judges, and before them the cause of l62 FAMOUS LEGAL ARGUMENTS. Theodore Tilton was tried, and he was condemned. And it was imagined that that condemnation would be the permanent acquittal of Henry Ward Beecher. It was supposed that a private tribunal thus constituted of the friends of the accused, instructed and guided throughout all its deliberations by the counsel of the accused — it was supposed that that judgment would be decisive and permanent. But every one saw that Theodore Tilton was deprived of a hearing before that investigating committee, his evidence shut out, the testimony of important witnesses evaded, those known to have the material and intimate acquaintance with the merits of that controversy unsummoned, a hasty and a snap judgment pronounced in a case of this character, and between men like Henry Ward Beecher and Theodore Tilton. It is not wonderful that public judgment was unsat- isfied ; it was not surprising that the public clamor demanded a more thorough and complete investiga- tion of this most unfortunate transaction; and the result has been, gentlemen, this trial ; and in my judg- ment the great and important question upon this trial is, whether the system of influence and denunciation and clamor which for a year has invested this case, is to intrude itself with success upon the deliberations of a court and a jury. The question is whether here, in this, what is called the temple of justice, in the pres- ence of that pure spirit of right and equity which is FAMOUS LEGAL ARGUMENTS. 163 supposed to prevail in this presence — the question is whether the organized power of Plymouth Church, aided by ingenuity arrd the eloquence of coun- sel, is to overcome that sense of fair play and equity which is the spirit of our administration of the law. If this cause is to be won, gentlemen, by bold assertion and clamorous appeal, and by confident and insulting predictions, I yield the palm to my learned adversaries. If the judgments of this jury are to be controlled by a stream of invective and vituperation, by a repetition of scandalous and dishonoring epithets, repeated until they have pained the ear and sufeited the taste, I have neither hope nor care to influence your deliberations. I suppose that I speak to men properly estimating the prerogatives and responsibilities of their position. Believe me, gentlemen, this power of judgment is a great and responsible power. To-day you hold in your control, as my friends upon the other side say, the des- tinies of the greatest preacher in all the world. To-day you hold in your hands the destiny and the reputation of this plaintiff ; and more than that, you hold in your hands the power of vindicating the witnesses produced upon this witness stand, or consigning them to imper- ishable dishonor and infamy. It is a great power and whence do you derive it? Not by any natural right of judgment. What enables you to say to Theodore Til- ton, to Frances Moulton, to Mrs. Moulton, "you are perjurers;" to the two first, "you are adulterers and 164 FAMOUS LEGAL ARGUMENTS. infamous. You have no place in a court of justice. Although no man in this broad community has impeached your character for integrity and veracity ; although you stand among the most reputable and honored of this community, yet by verdict you shall be scouted from this court room, branded with our judgment of infamy ? " A fearful responsibility to such a power. The law has selected you as twelve intelligent, honest and lawful men, to decide the great question involved in this controversy, and to you has committed this cause, freighted with these immense and permanent interests. You have been appealed to, Mr. Foreman, personally by my friend Mr. Porter. He has assumed to know the sentiments of this jury-box. He has assumed to say that he knows what the verdict of this jury will be. I know the power and the influence of the organization which has surrounded this defendant during this trial. My friend Mr. Evarts wished for the hundred eyes of Argus; he has them, and more, too. And the hundred arms of Briareus; he has them, and has had them, and more, too. And there was no need of his wishing for the gold of Midas; he has had that too, dispensed with great liberality, with unbounded generosity, and always placed where it will have the best effect. But it seems to me a most astonishing assumption of prophetic power upon the part of my learned friend that in a court of justice, before gentle- FAMOUS LEGAL ARGUMENTS. l6$ men sworn to be impartial and true, an honored and distinguished counselor, before the plaintiff is heard, should assume to say, " gentlemen, I know what your verdict will be." Sir, you occupied that stand. You avowed that you had formed opinions favorable to the defendant in this case, but you said in the presence of that God whom you worship and revere, that you could nevertheless decide this case impartially upon the evidence. Are you to prejudge it? Is there any counsel in this case who can appeal to you personally, and say he knows what the verdict of this jury will be ? Aye, that it will be acquittal of Mr. Beecher without leaving your seats. By what authority does the gen- tleman speak? If I am addressing gentlemen of that character, gentlemen whose judgments will be carried by epithet and calumny and abuse, unsupported by evidence ; if the eloquence and the oratory of counsel can move the conclusion of this jury, I have no hope of success before you, gentlemen. I am not an orator as Brutus is. I have no calumnies to utter ; I have no epithets to apply. I have a plain, simple, logical argu- ment to present to you upon the proof in this case. If there be not evidence enough, if there be not proven facts enough under the ordinary administration of the rules of evidence, abiding by those lessons of wisdom and of truth come to us from the past — if there be not enough to satisfy the minds and the consciences of twelve impartial and unprejudiced men, I want no l66 FAMOUS LEGAL ARGUMENTS. verdict in this case. I want no untruthful judgment against Henry Ward Beecher. I ask for no perversion of the law. I ask for no surrender of '^the consciences and the pure and intelligent judgment of this jury. But if I bring to them those proofs approved by the Jaw, justified by the history of the law, those evidences which the law pronounces as sufificient to convict even of guilt in the presence of all charitable presump- tions of the law, then in the name of that law, and its justice, I demand a verdict. And, gentlemen, I have a right to demand it. I have a right to ask you, before Tilton shall be disbelieved, before' Moulton shall be discredited, before Mrs. Moulton shall be defamed by your verdict, before the letters of Henry Ward Beecher shall be misconstrued, before the confession of Mrs. Tilton shall be disregarded, accepted and approved as it was by the defendant in this case — before all the prominent and convincing elements of this proof shall be disregarded — I have a right to ask from you a con- sideration far more elevated and truthful than has yet been given to these evidences. I know the wonderful power of my learned friends upon the other side. I have felt its influence. I cannot say that I am even yet relieved, with all the firm convictions impressed upon my mind in regard to this case. Where, gentlemen, in the history of the justice of this country has there ever been such an exhibition as has been presented in this court room within the last FAMOUS LEGAL ARGUMENTS. 167 thirteen days? Have you ever heard such a storm of invective and abuse ? Have you ever heard a loftier exhibition of the powers of oratory than has been given by both my learned friends? Have there ever been in any cause efforts so extended and so marvelous ? And yet my learned friends say : " The plaintiff never had any case." Why, my friend Mr. Evarts says to you there is not the slightest evidence in this cause of the guilt of Mr. Beecher. Why, when the plaintiff rested he ought to have been turned out of court ; he had no cause ; there was no proof ; and my learned friends, with all the arts and the powers of oratory, have spent thirteen days to convince you of that, gentlemen. They have given you very strong proof of their sin- cerity ; they have given to you very strong evidence of their conception of this case. With a skill and adroitness unexampled in our courts, they have endeavored to escape the consequences of that evi- dence. They have resisted it by but one witness, and that is Henry Ward Beecher. The amazing declara- tion was made by my learned friend, Mr. Porter, that Tilton and Moulton were contradicted by thirty-four witnesses. Why, gentlemen, it is the most astonishing declaration which could have been made in this case. And it can be met only by a clear and explicit denial. On the contrary, I hope to demonstrate to you that Tilton and Moulton, upon any of the material facts in this case, have been contradicted by no single witness pes FAMOUS LEGAL ARGUMENTS. except Henry Ward Beecher. Most of the time has been occupied in this case by the examination of imma- terial and unimportant collateral questions. It is said that we have occupied your time, when you must recollect that all this long investigation, a hundred of days, has been directed, not to the question of the guilt or the innocence of Mr. Beecher, but to an unsustained and abusive attack upon the character of Tilton and Moulton, and the other witnesses upon the part of the plaintiff. Gentlemen, I cannot pass to the consideration of this case without a single further remark upon the address of my friend Mr. Porter. It was a most remarkable effort. For thirty years that gentleman and myself have practiced together in the courts. There is no gentleman, in or out of the profession, for whom I feel a more unfeigned esteem and respect ; none in the profession whose qualities as a lawyer I more admire and respect. I have been accustomed to see him in the fore rank of professional controversy, claiming and maintaining the loftiest honors of our pro- fession. And I am pained and grieved that upon this occasion he has lost that position, and appears here as a subordinate and secondary adversary. In that there is no humiliation, gentlemen. No lawyer of our pro- fession, eminent even as Mr. Porter is, would be dis- graced by following the leadership of a gentleman as eminent as Mr. Evarts. It is not that. But the FAMOUS LEGAL ARGUMENTS. 169 humiliation consists in the ignoble and unworthy- service he has undertaken, to abuse and denounce and calumniate, and, by fierce and furious epithets, to drive this plaintiff from the respect of this jury, and from the consideration of this court. Mr. Tilton is said to be theatric — " hollow and theatric," I think, was the terrh ; and singularly enough that accusation comes from my friend Mr. Porter, who has given the most distinguished evidences of the possession of the highest histrionic ability. Why, you remember, gentle- men, with what violence of gesture, with what in- temperance of speech Mr. Tilton was assailed. It began to b,e somewhat alarming ; for, when my learned friend Mr. Porter was flourishing his fist so furiously in the face of Mr. Tilton, and in his sonorous and impressive tones crying out, " Down, down, down to hell, and say I sent thee there," I felt some anxiety for the safety of my client, and I looked around with some amaze- ment to see what had become of him. It was very gratify- ing to me to find him there sitting composed and un- alarmed, rather amused at the grotesqueness of the performance, and wondering really what my friend Porter thought of himself. Well, sir, are you to deter- mine this case upon such arguments? Is a party in a court of justice appealing to the impartiality and equity of the law, asking from his fellow men a legal consideration of his claims and his rights, to be hunted from court ? And by epithets and denunciation ! I70 FAMOUS LEGAL ARGUMENTS. What sort of a cause is it which demands this advocacy? And how happens it that a gentleman capable of the loftiest legal efforts, a gentleman claiming more than a due share (and deservedly too) of professional renown, instead of a temperate, logical argument upon the evi- dence, spends five days in a violent assault upon the opposite party and his witnesses ? If Henry Ward Beecher is innocent he needs no such clamorous and foul defense. If Theodore Tilton is a perjurer and an adulterer, a cold and shameless debauchee, it can be proven from the evidence ; and where is it, gentlemen ? I shall have occasion to ask you more particularly that question. But let your recollection run, over this proof, find if you can the evidence which thus im- peaches the moral character of Mr. Tilton, which in the presence of his demonstration upon the stand in court, can stand an instant against the open honor and honesty of his character. But it is the necessity of this defense. Tilton must be destroyed, Moulton must be discredited, Mrs. Moulton be struck from the ranks of honorable womanhood, Mrs. Bradshaw must be dis- believed, Richards must be calumniated, and all the others who have uttered a syllable of reproach or of fact against the character or standing of Henry Ward Beecher must be destroyed ; and if this is not accom- plished, this defense fails and my friends know it. And the effort of both of them — with persistent eloquence, with an ingenuity almost devilish in its conceptions. FAMOUS LEGAL ARGUMENTS. 171 both of them have striven for thirteen days not to demonstrate the innocence of Mr. Beecher, but to destroy his accusers, and from that demand a verdict from the hands of this jury. Well, there is a singular inconsistency in the modes of argument and in the conceptions which my learned friends indulge in regard to this case. Tilton is not only a perjurer and an adulterer, a man of most base and infamous character, the seducer of a young girl in- trusted to his honor and care by his wife, but according to Mr. Porter, he is the cunning, adroit, subtle conspirator who has organized this deep-laid and long-prosecuted conspiracy against the pocket and character of Henry Ward Beecher. And my friend Mr. Tracy, on the contrary, has a very low opinion of his skill and sagacity and forecast. He denounces him as having a genius for blundering. All admit that he is a man of intellect. My learned friends agree that he is a rhetorician and elocutionist. Henry Ward Beecher praises him for his intellectual powers, rather com- mends that genius which, early in life, lifted him to " the loftiest editorial chair in America," as Mr. Beecher says. You have .seen him upon the stand. There has been no irritation, no malevolence, there has been no departure from the demeanor which becomes a man of intelligence and honesty. I undertake to say, sir, that his relation of his life, as it was examined by the searching inquiries of counsel, and the history 172 FAMOUS LEGAL ARGUMENTS. which he gave of that life and of this episode in it, attracted your confidence and belief. In the whole history of his acts with reference to this domestic tragedy, he has never uttered a word of reproach or of censure against the woman who betrayed him. To the honor of manhood, to the honest emotions and love of his own nature he has been true, even under the temptation of this case. With a fidelity unexampled, with an exercise of Christian magnanimity and forgive- ness which has been ridiculed in this c6urt of justice, and before Christian men, he forgave what Henry Ward Beecher swears he believed he thought was the grossest outrage that could be practised against a hus- band and a father. If I am not mistaken, I will show you that in all the emergencies and vicissitudes of this strange case, Theodore Tilton has never departed from his manhood, from the sincerity of his forgiveness, as toward his wife and Mr. Beecher ; that he adhered to his honor and his plighted word under every circum- stance, until goaded and driven by wrongs which could not be endured, to the presentation of this case to this court and this jury. And why is that man to be slandered as he has been slandered ? Why are all the terms of the vilest vulgarity and abuse in this court of justice heaped upon Theodore Tilton? What has he done ? Fabricated a charge ; organized a conspiracy ; himself sunk into the lowest depths of depravity hoping to raise himself to position and character by the FAMOUS LEGAL ARGUMENTS. 1 73 destruction of Mr. Beecher, subsidizing the honesty of his friends, corrupting the integrity of womanhood, suborning perjury, marshaling the hosts of perjurers into this court of justice, with devilish skill and unprincipled purpose — this is Theodore Tilton, accord- ing to my learned friends. Will you remember his ex- clamations : " I wonder if Elizabeth knows how gener- ous Theodore has been ? " " Is it possible that we three can again be reunited ? Theodore will have the worst to bear. " "The hardest part to bear." And through all these letters, until with the fatuity of guilt Mr. Beecher reached the position where by his church he was driven into active hostility, through all the letters and declara- tions of Henry Ward Beecher, he bore truthful and honorable testimony to the manhood and sincerity of Theodore Tilton. Moulton — where, in the whole range of friendship, celebrated as it has been by the noblest philosophers and poets, can you find anything equal to the tributes which Henry Ward Beecher has paid to Moulton? I shall ask your atten- tion to that by and by particularly. But in passing, I ask you to consider these testimonials originat- ing from Henry Ward Beecher in favor of the men and women whom his counsel have so bitterly and loudly denounced. Ah! gentlemen, there is the diffi- culty in this case. It is just the difficulty which origi- nated in the first place the charge of blackmail. I 174 FAMOUS LEGAL ARGUMENTS. agree that Henry Ward Beecher is a great man, great in intellect, and great in many noble and distinguished qualities, and I shall not attempt at all to reduce the estimate of him by his counsel, by this jury, and by the world, except that when my learned friends elevate him to that degree of perfection that he is utterly good and sinless, I take exception to the statement, and I shall attempt to show you in the course of the argu- ment I have the honor to present to you, that there are some exceptions to be taken to the character of Mr. Beecher. For however great and good he may be, he is not yet sinless and perfect, and the whole argu- ment of our learned friends is based upon that proposi- tion, and that proposition alone, that he is too elevated and good, his life too pure and stainless, the law of his nature too pious and worthy to permit the imputation of sin and offense. But this man, so great, so good, has borne invariable testimony to the integrity and fidelity of the persons assailed in this court by his counsel. And the diilficulty, as I said, has been that Henry Ward Beeclier surrounded by the influences which envelop him, governed by the interests which control him, not his own, influenced by considerations which spring not from his own nature, and his own consciousness — the difficulty has been that those who were interested in Henry Ward Beecher have been continually fighting against the generous and magnani- mous impulses of his nature. Why, you remember FAMOUS LEGAL ARGUMENTS. 17S that description by Mr. Beecher of the controversy between him and Mr. Tracy and Mr. Shearman upon the question of blacltmail, a most amusing but an illus- trative example of the influences which controlled Mr. Beecher in the first place in his prosecution of Mr. Til- ton before the Examining Committee, and now in his unworthy and insincere defense against this action. ******* MR. beach's peroration. My argument now, gentlemen, is finished. All these disagreeble topics have passed, and I am rejoiced that I am relieved, I hope forever, from them ; but please suffer me a few words in conclusion. We have com- muned together a long time upon great themes, lifting us above the littleness of common controversy. They are associated with the highest interests of humanity, they affect the civilization of the age. Truth, morality, religion, divine and human law, all the great topics which stir the enthusiasm of our nature, have mingled with our deliberations. It is impossible that we should not feel something of their purifying inspiration. The selfish and petty struggles of ordinary life often tram- mel and debase our thought, chaining our souls to mer- cenary calculation and sordid desire. If anything can exalt us to a higher spirituality, to a nobler conception of truth and duty, it is a scene like this, so full of dignified interest and weighty responsibility. We must rise to this great occasion or 176 FAMOUS LEGAL ARGUMENTS. we belittle our ourselves and dishonor our own nature. Most sensibly have I felt my inability worthily to meet the duty of my position, and struggle with the perplexities of this wide debate, in the face of adver- saries so cunning of defense, so powerful and skilled as my eminent friends. But the race is not always to the swift nor the battle to the strong. The sling of the shepherd very often vanquishes the might of the giant. Weakness is strong in the energy of truth. I have no faith in my own skill, but I have abiding hope in the supreme justice which governs the world, marking the sparrow as it falls. On the great seal of your city is engraved the noble motto, "right makes might," and on any day of public celebration it shines upon the flag which is flung out from the dome of your City Hall. It is the sentiment which encourages and strengthens weakness in its contests with arrogant strength. It is the sentiment which has sustained my client in all the difficulties and discouragements of this contest, and it will sustain and eventually, I trust, redeem him, because it bears the promise of Him whose words shall never fail. Wearied and worn with this trial, gentle- men, I shall part from you with respectful regret. Our long association, bringing us into daily intimacy, impresses me with kindly sympathies and interest for each of you. We have stood together before this com- munity animated by a common object, seeking after the right in honest sincerity. The distempered plea of FAMOUS LEGAL ARGUMENTS. 1 77 turbulent passions has been against the altar at which we serve. The boisterous interests and sympathies of an interested people have tried the firm foundation of this temple, but the spirit of justice sees nothing of the tumult, hears nothing of the uproar. Calm and confident, she leans trustingly upon a juror's oath. Your consciences uphold the shaking temple and the tottering altar. If they weaken and fail, if the strong pillars of honesty and truth give way, temple and altar and God sink to a common ruin. The struggle this day- is between the law and a great character and a great church. If the latter triumph, and the law is trodden down, woe unto him who calls evil good and good evil. May it please your honor, it needs not I should express the common sentiment of my associates and myself, as we recall the intelligent dignity and fearless learning, with which you have guided us through the tangled mazes of this trial. You can receive no nobler tribute than that offered by our adversaries. Contest- ing every position with animated zeal, and sprinkling this record with objections, they acknowledge with inimitable candor the entire accuracy of your numerous decisions. Your Honor, therefore, has the gratification to know that you have worked no injustice to this defendant. Sir, I indulge the hope that the friendly regard with which you have honored me, like my own warm respect for yourself, will be deepened by the remembrance of those toilsome but pleasant days. 178 FAMOUS LEGAL ARGUMENTS. I cannot part, sir, with this occasion without acknowl- edging my obligations to my noble and tried associates. If any merit has attended my efforts it is due to their sagacity and wise prom'ptings. Posting me in the front of this battle, they have yet stood its true leaders and champions. It has been a regret and a loss that unavoidable circumstances have withdrawn my very learned and accomplished friend, Mr. Pryor, so much from our side. If he has not struck so many blows in the field, he has nevertheless been the wisdom of our cabinet. Deeply are we all indebted, and especially myself, to his ready and large learning and judicious counsel. You will credit me, sir, when I again declare that the duty I have performed has been most unwelcome and painful. I have not spoken aught in malice. I leave this case without the slightest asperity of feeling toward any, filled with unaffected admiration for the transcendent qualities and generous courtesies of my distinguished antagonists. No man venerates more profoundly than myself the magnificent genius of this defendant. His large contributions to the literature of the times excite the sentiment of which Macaulay spoke in his essay on the Life of Bacon. Rich as he is in mental endowments, prodigal as his labors have been, they can shelter no offense against the law. Genius as lofty, learning more rare and profound, could not save Bacon. He sinned and fell. Upon his mem- FAMOUS LEGAL ARGUMENTS. 1 79 ory history has written the epitaph, " The greatest and the meanest of mankind." Toward great men in dis- grace, like those who fall, Whittier, New England's gifted poet, writes in his poem entitled " Ichabod : " — He then recites this familiar poem. Gentlemen, I commit this case to you in the sublime language of the great orator who speaks to you from his grave at Marshfield : " With consciences satisfied with the discharge of duty, no consequences can harm you. There is no evil that we cannot either face or fly from but the consciousness of duty disregarded. A sense of duty pursues us ever. It is omnipresent, like the Deity. If we take to ourselves the wings of the morning and dwell in the uttermost parts of the earth, duty performed or duty violated is still with us for our happiness or misery. And if we say the darkness shall cover us, in the darkness as in the light our obligations are yet with us. We cannot escape their power nor fly from their presence. They are with us in this life, will be with us at its close, and in that scene of inconceivable solemnity which lies yet farther onward, we shall still find our- selves surrounded by the consciousness of duty, to pain us wherever it has been violated, and to console us so far as God may have given grace to perform it." F^RT II. Circumstantial Evidence. The following five selected cases will illustrate quite fully the uncertainties of merely circumstantial evi- dence. The ancient Romans were so sensible of the uncertainty of evidence that their form of judgment, merely expressed, that he appeared to have done it. Various cases are shown herein where the discovery of the fatal error came too late to be rectified, to say nothing of the thousands of cases where the mistake has never been discovered. It is impossible to say to what extent this dangerous doctrine may have been carried. Proof by presumption and conjecture cannot be called a true and proper proof. The writer feels free to confess that he considers it highly improper, unjust and entirely wrong to convict any person on circumstantial evidence of a crime the penalty for which is capital punishment, and I sincerely trust that the day is not far distant when it will be abolished. HOMICIDE. CASE OF THE BOORN BROTHERS. The principal points o! this peculiar case were taken from sa pamphlet published by the Journal, of Manchester, Vt. There lived in Manchester in i8i2 one Boorn, who had two sons, Jesse and Stephen, and a son-in-law, Russell Colvin, all living with him. Colvin was eccen- tric, supposed to be at times deranged, and was often away for days without giving any account of his whereabouts. At last he was absent so long that peo- ple began to make inquiries, and suspicions of foul play were in the air. Months and years passed, and yet there was no explanation of his absence. Some of the neighbors remembered that the Boorn brothers, very shortly, after his disappearance, had declared that Colvin was dead, and that they had "put him where potatoes would not freeze." They had not been on good terms with him, and this added to the prejudice against them. Other circumstances began to accumulate against the Booms. Some children found a dilapidated hat, which was recognized as the one Colvin wore at the time of his disappearance. Search was then made for the bones of the supposed murdered man. Soon afterwards a dog uncovered some bones beneath an old stump, which were at first said to be human bones, but were afterward found not to be. An uncle of the CIRCUMSTANTIAL EVIDENCE. 1 83 boys had a dream in which Colvin came to his bedside and told him he had been murdered. A barn in the neighborhood was mysteriously burned, and it was at once conjectured that Colvin had been buried under it, and that the fire was intended to destroy all traces of the crime. All these added to the excitement against the Boorns. Stephen was out of the state, but Jesse was arrested. He confessed that his brother Stephen had told him that he and Colvin had quarreled, and that he had killed him by a blow on the head. The people for miles around spent the next few days in another search for Colvin's bones, but were unsuccessful. Stephen Boorn was brought home. He denied the satement of Jesse and asserted his innocence. The brothers were imprisoned to await the action of the Grand Jury. The principal witness before that body was a forger, who had been confined in jail at the time of the Boorns. He gave in detail a confession to him by Jesse, and both boys were indicted. This was in September, 1819, more than seven years after the dis- appearance of Colvin. The trial took place in Novem- ber. Meanwhile Stephen was induced by the hopeless- ness of their case to confess the crime, in the expecta- tion of mercy from the court. This confession was the chief evidence against them. Notwithstanding that it was drawn out by the hope of obtaining a more favorable verdict, and that nobody had been found as proof of the murder, or even that 1 84 CIRCUMSTANTIAL EVIDENCE. Colvin was dead, they were convicted and sentenced^ to be banged January 28th, 1820. The proof against them appeared so decisive that the poor old mother was expelled from the Baptist Church in the village and the father arrested upon suspicion and imprisoned as an accessory to the murder. A petition was passed and signed by many of the leading citizens, praying for a commutation of the sentence. The legislature voted to change the sentence of Jesse to imprisonment for life, but refused to in- terfere with that of Stephen. One morning, in an interview with, his counsel, it occurred to Stephen that it would be a good idea to- advertise for Colvin in the papers. His counsel believed him guilty up to this tirne, but he assured them that he was innocent, so accordingly the follow- ing notice was printed in the Rutland Herald, Burling- ton Free Press, and a St. Albans paper : " Murder. — Printers of newspapers throughout the United States are desired to publish that Stepher> Boorn, of Manchester, in Vermont, is sentenced to be executed for the murder of Russell Colvin, who has been absent about seven years. Any person who can give information of said Colvin may save the life of the innocent by making immediate communication. Colvin is about five feet five inches high, light com- plexion, light colored hair, blue eyes, about forty years of age. Manchester, Vt., Nov. 26, 18 19." CIRCUMSTANTIAL EVIDENCE. 1 85 Stephen's friends had but little hopes that this would save him, and newspapers travelled very slowly those days. Three days afterwards the New York Post copied it, and the next day it happened that the notice was read in one of the hotels in New York. Another man standing near, named Whelpley, said he had formerly lived in Manchester, and was well acquainted with Col- vin, and related many anecdotes and peculiarities con- cerning him. A Mr. Chadwick of Shrewsbury, N. J., was also standing near, listening to the conversation, which made a deep impression upon his mind. On thinking the matter over after he returned home it occurred to him that a man then living with his brother-in-law, Mr. William Polhemus, of Dover, answered exactly the description as given by Mr. Whelpley, so accordingly he wrote a letter to the Post giving his conclusions. Whelpley saw it, went to Dover, identified Colvin, and after great effort induced him to return to Manchester. There was great rejoicing in the town, and Stephen Boorn was brought from the jail to fire the cannon that celebrated his deliverance. HOMICIDE. Living just on the edge of the little town of M , in Chittenden, Co., Vermont, was a man of wealth, who had a grand old house, occupied only by himself and servants. There were various stories about how 186 CIRCUMSTANTIAL EVIDENCE. rich he was, and what large amounts of money he always kept near him, but he was never disturbed until one night, shortly after midnight, there was a terrific disturbance in the old house, accompanied by pistol shots, and when the people who came to see what the matter was got in they found the owner dead with a bullet through his eye, and the butler, with his hands full of jewelry and watches, lying in the doorway of the old gentleman's room, with a bullet somewhere in the head, but he wasn't dead. His revolver lay by his side, and as far as could be seen the whole story was told right there. The butler, who had been in the house only about six months, had attempted to rob his master, had been caught in the act and shot, but had killed the old man in the fight. That was the only translation of it, and there was no other for several days, because the butler had a very serious wound, and was delirious for a week. However, k was not fatal, and as soon as he was himself he made a statement to the effect that he had been awakened in the night by footsteps and had taken his pistol, which had only two 'loads in it out of the five, and gone down to the hall below to see what the noise was. He noticed that his master's door was partly open at the far end of the hall, and hurried toward it. As he approached it he heard his master speak to some one asking who was there, and with that there was a pistol CIRCUMSTANTIAL EVIDENCE. 187 shot, and he jumped into the room, grabbing a burglar as he did so, and at the same time getting a shot in the head from his master's pistol. Beyond that he remem- bered nothing. His story was generally disbelieved, for there was no evidence of any other person in the house with evil designs, and all the plunder that he had not caught in his hands was lying on the floor about him, so that there was no apparent reason why a burglar should be there. All the doors were found locked by those who came in response to the alarm, and there were absolutely no signs of burglarizing from the outside. Another strong point was that the bullet which was found in the butler's head exactly fitted the pistol of his master, showing conclusively that it was the master and not the burglar who shot him. This was the condition of the affair when the lawyer took charge of it, and, though he really believed the butler's story, and tried to prove it, he couldn't do it, and the man was finally hanged. A year later a burglar was shot by a policeman in the city near by, and he confessed on his deathbed that he was the murderer of the rich man. He had hidden in the house early in the evening, had collected all he could of jewelry and other portable valuables, and was about getting out when he was caught both by the old gentleman and the butler, and that the butler had got the bullet intended for him, as he had run into l88 CIRCUMSTANTIAL EVIDENCE. the room just as the old man fired. Dropping every- thing in his sudden surprise, he had rushed down stairs and hidden in the hallway, from where he had slipped out as soon as the front door was opened. In the excitement he was not observed, and he got away with- out any trouble at all, as the nearness to the springs and waterfalls, for which M is noted, made strang- ers so common that their presence excited no sus- picion. PARRICIDE. A young man in a rural town in Indiana, along in the 50's, was tried and convicted for the murder of his own father. The evidence against him was purely circum- stantial, the principal witness being his sister. She proved that her father possessed a small income, which, with his industry, enabled him to live in com- fort ; that her brother, the prisoner, who was his heir, at-law, had long expressed a desire to come into pos- session of his father's effects ; and that he had long been an undutiful son, wishing, as the witness believed, to put a period to his existence by uneasiness and vexation ; that on the evening the murder was com- mitted the deceased went a small distance from the house to milk a cow, and that the witness also.went out to spend the night, leaving only her brother in the house ; that, returning home early in the morning, and finding that her father and brother were absent, she CIRCUMSTANTIAL EVIDENCE. 189 was much alarmed, and sent for some neighbors to con- sult with, and to receive advice as to what should be done ; that in company with these neighbors, she went to the shed in which her father was accustomed to milk, where they found him murdered in an inhuman man- ner, his head being almost battered to pieces ; that a suspicion falling upon her brother, and there then being snow on the ground, in which the footsteps of a human being were observed, it was' agreed to take one of her brother's shoes and to measure therewith the impress- ions in the snow ; this was done and there did not remain a doubt but that the impressions were made with his shoes. Thus confirmed in their suspicions, they went immediately to the prisoner's room, and after a diligent search, they found a hammer, in the corner of a private drawer, with several spots of blood upon it, and with a small splinter of bone and some brains in a crack which they discovered in the handle. The circumstances of finding the deceased and the . hammer, as described by the former witness, were fully proved by the neighbors whom she had called ; and upon this evidence the prisoner was convicted and hanged, but denied his guilt to the last. About four years afterward the witness was ex- tremely ill, and understanding that there were no possible hopes of her recovery, she confessed that her father and brother having offended her, she was deter- mined they should both die ; and accordingly when the 190 CIRCUMSTANTIAL EVIDENCE. former went to milk the cow, she followed him with her brother's hammer, and in his shoes ; that she beat out her father's brains with the hammer and laid it where it was found ; that she went from home to make matters appear better for the wicked business and that her brother was innocent of the crime for which he had suffered. She survived her sickness, was imme- diately taken into custody, tried, convicted and hanged, all within seven weeks. MISTAKEN MEDICAL TESTIMONY. This case illustrates the necessity of procuring the highest medical talent in criminal cases relating to injuries of the person, as well as the uncertain nature of circiimstantial evidence. The following statement was sent by a surgeon to a leading medical journal not long since : Some thirty years ago, while passing the village of Ferrisburg on the way to my home in Vergennes, my attention was attracted by a mob of persons of the lowest order around the door of a tavern, who were very loud in their execrations against some person who was suspected of having murdered his brother ; in cor- roboration of which, I was told that his bones were found near the premises where he formerly resided, upon view of which a jury was then sitting, after an adjourn- ment from the day preceding. CIRCUMSTANTIAL EVIDENCE. I9I I found that two surgeons had been subpoenaed to inspect the remains, and I had no doubt but that every information as to their character had been obtained ; curiosity alone, therefore, induced me to make way into the room, where I found that the coroner and jury were sitting for the second day, and were engaged in an investigation which tended to show that a farmer and market gardener, had, a few years before, a brother living with him who was engaged on the farm, but whose conduct was so dissolute and irregular that it often provoked the anger of his elder brother, and sometimes ended in violence between them ; that the temper of the elder brother was as little under con- trol as the conduct of the younger, and that they lived very uncomfortably together. One winter night, when the ground was covered with snow, the younger brother absconded from the house by letting himself down from his chamber window ; and when he was missed the ensuing morning, his footsteps were clearly tracked in the snow to a considerable dis- tance, nor were there any footsteps but his own. Time passed on, and after a lapse of some years, no tidings were heard of his retreat, nor perhaps have there ever been since. Some alterations in the grounds surrounding the house having been undertaken by a subsequent tenant (for the brother had left the house), a skeleton was dug up, and the circumstances appeared so conclusive that one brother had murdered the other, 192 CIRCUMSTANTIAL EVIDENCE. that the popular clamor was raised to the utmost, and a jury impaneled to investigate. After listening attentively to these details, I ven- tured to request of the coroner to be allowed to ex- amine the bones, which I found were contained in a hamper basket at the further end of the room, and I felt much flattered by his immediate compliance, for he desired the sheriff, who was in attendance to place them upon the table ; and having himself disposed them in their natural order, I found that they repre- sented a person of short stature, and from the oblitera- tion of the sutures of the skull, and the worn-down state of the teeth, must have belonged to an aged per- son, but what was my surprise when I reconstructed the bones of the skeleton, and found the lower bones of the trunk to be those of a female. I immediately communicated the fact to the jury, and requested that the two medical men who had before given their opin- ions might be sent for, one of whom attended, and without a moment's hesitation corroborated my report. I need not add that the proceedings were instantly at an end, and an innocent man received the amende honor- able, in the shape of an apology, from all present, in which the coroner joined. It has since been proved beyond all doubt that the spot where the bones were found was formerly the site of a large gravel pit, in which hordes of gypsies not only assembled, but occasionally buried their dead. HOMICIDE. Reuben Giff, an elderly man residing in a little town in Vermont, was visited one day by an old acquaintance named Mo. Lamph whom he had not seen for some time. They went across a square to a hotel, and after drinking together Giff asked to be excused as he had an import- ant errand, which was to receive some money owing him, but made him promise to await his coming back. Giff returned and they drank together again. Giff now insisted that Lamph accompany him home to dinner. They dined, drank and shook hands again and again, until in fact they were pretty well intoxicated. The room they sat in was backwards, detached as it were from the house, with a door opening into a yard, and had access to the street without passing through the house. As it grew late Mrs. Giff came into the room, and not seeing her husband there, made inquiry after him of Lamph. Lamph being much intoxicated, all she could get out of him was. that G. had gone out in the yard some time before, and had not returned. Giff was called, was searched after by the whole family ; but neither answering, nor being to be met with, Lamph, as well as he was able for intoxication, went his way. Giff, not coming home that night, and several days passing without his returning or being heard of, suspi- cions arose, in the minds of many, of some foul play on 194 CIRCUMSTANTIAL EVIDENCP:. the part of Lamph ; and these were not a little in- creased on the thought that he had received a sum of money that day, and that Lamph had replied to inquiries after him in a very incoherent, unintelligible manner, which at the time had been attributed to his being in liquor. These suspicions went abroad, and at length a full belief took place in many that Lamph was really the murderer ; had gone out with him, robbed and mur- dered him, disposed of the body, and slid back again to the room where they were drinking, unseen. The officers were sent to arrest Lamph, and he giving, before the magistrate, a very unsatisfactory relation of his parting with Giff, which he affirmed was owing to his having been intoxicated when Giff went out of the room, but which the magistrate ascribed to his guiltiness, he was committed to the county jail for trial. While in confinement, reports were spread, tending to warp the minds of the people against him. Super- natural as well as natural reasons were alleged as proof of his guilt. Giff's house was declared to be haunted ; frequent knockings were heard in the dead of night, and ghosts were seen. And to crown the whole, a son of the deceased, Henry by name, positively affirmed, that once, at midnight, his curtains flew open, the ghost of his father appeared, all bloody, and, with a piteous look and hollow voice, declared he had been murdered, and that Lamph was the murderer. CIRCUMSTANTIAL EVIDENCE. I95 Under these prepossessions amongst the weak and superstitious, and a general prejudice in stronger minds, Mo. Lamph was brought to trial for the murder of Reuben Giff. Circumstances upon circumstances were deposed against him ; and as it appeared that Lamph was with Giff all day, both before and after his receiv- ing the money, and that they spent the afternoon and evening together, the jury, who were neighbors of Giff's, found Lamph guilty, notwithstanding his protestations, on his defense, of innocence ; and he was shortly after executed in public on C Green. It happened that, some time after, Mrs. Giff died, and the parties to whom the place was sold, were making some repairs about the house, in emptying the necessary, which was at the end of a long dark passage, the body of Giff was discovered. In his pockets were found twenty ten dollar gold pieces, from whence it was evident he had not been murdered, as the robbing was the sole circumstance that could be and was ascribed to Lamph for murdering him. The truth of Lamph's assertions and defense now became doubly evident ; for it was recollected that the floor of the necessary had been taken up the morning before the death of Giff, and that on one side of the seat a couple of boards had been left up ; so that being intoxicated, he must have fallen into the vault, which was un- commonly deep, but which, unhappily, was not adverted to at the the time of his disappearance. MR. HOFFMAN'S ADVICE. The eminent American law writer and authority, Mr. Hoffman, in giving advice to young lawyers as to proper studies to be pursued, says: "I am particu- larly sedulous to guard against the too common error of calling students to the commentaries of Sir William Blackstone, before they have laid a solid foundation in requisite preliminary studies. It is a serious mistake to suppose that, because that work is an elementary outline of English jurisprudence, it should be placed at once in their hands. " I scarce ever saw a student well grounded in the commentaries who had pursued this course ; and I believe the mistake of which I now appraise them has often either occasioned despondency, or induced students to rely on repeated readings, with the vain hope of mastering the difficulties. We are assured on the contrary, that, if they carefully study what has been pointed out as preliminary, they will study this admirable work with understanding and alacrity, and eventually save time, as they will, after one perusal, scarce have occasion to regard the work in any other light than for occasional revision and reference. Let him, while reading the heavy works of solid law-learn- ing such as Blackstone, Kent, etc., make frequent excursions to actual cases themselves and study the speeches of our leading advocates." JUDGE DONOVAN'S ADVICE. Judge J. W. Donovan, in his admirable little work, "Tact in Court," concludes with the following excellent advice to young lawyers, which is given here- with by his permission : 1. Look at the profit side of the ledger; money is handy in law business. 2. Rely on a personal study of cases ; a few, well sorted, are better than many of remote bearing. 3. Bring less suits and settle more, even by splitting differences; but charge for it. 4. Counsel less with clients and more with wit- nesses; the bias of the one overreaches ; the timidity of the other falls short of truth. 5. Cross-examine less with honest witnesses ; they tell too much and misplace it so recklessly. 6. Claim not too much perfection in clients; the jury know human nature is ugly ; they will be jealous of half angels in lawsuits. 7. Demand less and be believed, rather than claim too much and let the jury halve it ; they may give the big half to your adversary. 8. Use others as you hope to be used by them ; the chances of gain and loss are in favor of the gain side by this method, and a good name will be a fortune made easy. I'QS judge DONOVAN'S ADVICE. 9. Carry your heart into court — in everything ; do nothing heedlessly; juries are more in sympathy with fair play every year, and no theory will stand testing like honesty. 10. Don't forget the boy lawyers, struggling up the steep hill from college to We'oster's top story. It's a long way up now. It is better to cheer than to dis- courage. Cheer them and they will brighten your name hereafter. Judge Donovan, now on the bench, in writing to the author on this subject, says : " More could be said now as I look down from the bench on struggling young men, and see them contend and hear them wrangle and know that feeling often takes the place of argument. The greatest law school is the court room." PREPARE is the great word. Gtt the case well in hand and see that the lawyer knows his case fully, so fully that he can make it clear to court and jury. INDISPENSABLE T O EVERY STUDENT. STUDENT'S REVIEW OF LAW AND EQUITY, EMBRACING QUESTIONS AND ANSWERS BY L. O. MURRAY, LL. M., of the New York Bar, and C. E. RIORDAN, LL. M., of the Bar of District of Columbia. This is the most complete Question and Answer book ever pub- lished. It will be found indispensable to the student in time of preparation for examination; and of great value to the profession as a convenient book of reference. It covers the entire ileld, and contains answers to 2271 QUESTIONS lu the preparation of the book the following standard authorities have not only been cited, but the work is especially prepared for use in connec- tion with them: CONTRACTS— Anson, Bishop, Hare, Parsons, Ralston and Smith; 161 Questions and Answers. CRIMINAL LAW— Bishop, Browne and May: U7 Questions and Answers. DOMESTIC RELATIONS— Browne and Schouler: 82 Questions and Answers. EQUITY— .\dams, Smith; 289 Questions and Answers. . EQUITY PLEADING AND PRACTICE— Adams and Smith; 96 Questions and Answers. EVIDENCE— Greenleaf: 474 Questions and Answers. MISCELLANEOUS— AU law writers; 414 Questions and Answers. NEGOTIABLE INSTRUMENTS— .\mes, Byles, Chalmer; J7.t Questions and Answers. PLEADING— Stephen; 321 Questions and .\nswers. REAL PROPERTY— Tiedeman, Washburn, Williams; 69 Questions and Answers. TORTS— Addison, Bigeiow, Cooley; 43 Questions and .Answers. Total Questions and -Vnswers, 2,271. The volume is 8vo. in size, contains 316 p^.ges. and is bound in full law sheep for $3.00; and in half sheep back and corners, and sides in marbled paper for $2.50. Sent to any address, charges prepaid, upon receipt of price. E. J. BOSWORTH & CO., Publishers, ROCHESTER, N. Y.