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TRIAI. 
 
 
 OF 
 
 .ROBERT M. GOOBtl 
 
 ■ 
 
 ON AN INDICTMENT OF MANSLAUGHTER 
 
 FOR KILLING 
 
 JAMES STOEEHLTGN, ESQ. 
 
 IN BROADWAY, IN THE CITY OF NEW-YORK, 
 
 On the 21st (lay of December, 1810. 
 
 TRIED AT THE COURT OF GENERAL, SESSIONS OF THE PEACE HELD. IN 
 AND FOR THE BODY OF THE CITY AND COUNTY OF NEW-YORK. 
 INCLUDING THE ARGUMENTS OF COUNSEL AND OPINIONS 
 AND ORDERS OF THE COUR.T ON A MOTION TO BAIL 
 THE PRISONER, PREVIOUS TO HIS TRIAL, AFTER 
 THE FINDING OF A COR.ONER’s INQUEST 
 OF WILFUL MURDER, AND A VER* 
 
 DICT BY A GRAND JURY OF 
 MANSLAUGHTER. 
 
 AND A FURTHER MOTION TO BAIL 
 
 | On the Petit Jury being- Polled and Disagreeing in their Verdict, and being finely 
 Discharged at the close of the Session, after a Trial which lasted 
 five days, having began on the 14th and ended on 
 the 18th day of March, 1820. 
 
 
 
 
 AND ALSO A MOTION TO BAIL 
 
 On a Writ of Habeas Corpus before His Honour the Mayor, at hi- 
 office in the City-Hall. And a like motion before flis Honour 
 Chief Justice Spencer, at his Chambers, -with 
 his Opinion and Order to admit 
 tile Prisoner to Bail. J». 
 
 —■* 
 
 TAKEN IN SHORTHAND 
 
 BY WILLIAM SAMPSON, 
 
 Counsellor at Law. 
 
 ■ -=a i«t®|®®|»l»i c= 
 
 NEW-YORK : 
 
 PRINTED BY G. L. BIRCH k CO. 
 No. 39£ Frankfort-Street, 
 
 1820. 
 
SOUTHERN DISTRICT OF NEW-YORK, ss. 
 
 BE IT REMEMBERED, that on the twenty-eighth day of March, in the fortv- 
 lourth t ear of the Independence of the United States of America, William Samjtsor:, 
 esquire, of the said district, hath deposited in this office the title of a book, the right 
 whereof he claims as proprietor, in the words and figures following, to wit: 
 
 “ The trial of Robert M. Goodwin, on an indictment of manslaughter, for killing 
 James Stoughton, esq. in Broadway, in the city of New-York, on the 21st of December, 
 1819. Tried at the Court of Gcueral Sessions of the Peace, held in and for the body of 
 the city and county of New-York. Including the arguments of counsel, and opinions and 
 orders of the court on a motion to bail, after the finding of a Coroner’s inquest of 
 wilful murder, and the verdict of a Grand Jury fer manslaughter. And a further mo¬ 
 tion for bail on the Petit Jury being polled, disagreeing in their verdict, and being 
 finally discharged ; the trial having began on Tuesday, the 1-lth of March, and ended 
 on Saturday the 18th.” 
 
 In conformity to the act of the Congress of the United States, entitled, “ An Act for 
 the encouragement of Learning, by securing the copies of Maps, Charts, and Books 
 to the authors and proprietors of such copies, during the times therein mentioned.’' And 
 also to an Act, entitled, “ An Act, supplementary to an Act, entitled, an Act for the 
 cncouragment of Learning, by securing the copies of Maps, Charts, and Books to 
 the authors and proprietors of such copies, during the times therein mentioned, and 
 extending the benefits thereof to the arts of designing, engraving, and etching historical! 
 and other prints.” 
 
 G. L. THOMPSON, 
 
 Clerk of the Southern District of New-York. 
 
+ • 
 
 ADVERTISEMENT. 
 
 his report was undertaken under the auspices of public favour* 
 compiler was desirous of making his labours serviceable to 
 profession and the public, and few cases had ever occurred 
 ch promised a more ample field of instruction and rational cu- 
 ity. 
 
 ’hat he might not be a loser of labour, time, and money, as often 
 pens to the publishers of useful works, many of the most 
 lectable of our community became subscribers in advance upon 
 credit of the author. In return for this confidence, he has 
 towed great pains upon the work, and fixed upon it (for the 
 scribers) the lowest price that it would admit of, to afford him 
 in ary indemnity. 
 
 t contains the proceedings of nearly ten days, and pa*rt of several 
 tits. What the labour and attention requisite to follow, without 
 emission, the course of so many arguments and discussions, to 
 iscribe from shorthand notes, in which no person could assist, 
 nany eloquent speeches that could not but lose by omission or 
 nge, and at the same time to correct the press ; and all this in 
 hurry and interruption of daily professional avocations, can best 
 conceived by those who have at any time engaged in similar 
 ours. Some typical errors and other slight faults in transcribing 
 1 be found, as the work was hurried at the first in order to grati- 
 (public curiosity. But as none of these materially alter the sense, 
 f intelligent reader will easily correct, and the candid excuse 
 I m. The publication has been deferred from motives that have 
 tg since ceased, since so many hasty accounts have been circula¬ 
 te!, that justice calls for the publication of a faithful history of the 
 §ole of the important proceedings. To render the work more 
 ;ful and ready of reference, an index of the principal matters is 
 ,joined, and a table of contents prefixed, by which the reader, 
 cording to his taste, may find at any time, that which he wishes to 
 ect or refer to. And a plan is added, that those who are stran- 
 rs to our city mav the readier understand the subject of so many 
 nute but essential inquiries. 
 
CONTENTS 
 
 Motion to bail previous to the trial, 
 
 page 
 
 on 
 
 the 1 Sth February, 
 
 3 
 
 M r. Price’s opening, 
 
 3 
 
 Mr. Mnnro, (same side) 
 
 5 
 
 Mr. Blake for the prosecution. 
 
 9 
 
 Mr Griffin for the prosecution. 
 
 13 
 
 Mr. Wejls for the prosecution. 
 
 20 
 
 Mr. Munroin reply, 
 
 25 
 
 Opinion of the Court, 
 
 28 
 
 TRIAL—FIRST DAY. 
 
 ’ I 
 
 .March 14,1820. 
 
 Opening; of the Court, empannelling 
 of the Jury, challenges to the polls, 
 arguments and proceedings there¬ 
 on, from page 35 to 40 
 
 Indictment, 41 
 
 Opening of the District Attorney, 43 
 
 TVitnesses sworn and examined for the 
 prosecution. 
 
 Benjamin Clark, 40. 104 
 
 Maltbie Weed, 49. 107 
 
 Valentine Mott, M. D. 52 
 
 Cyrus Perkins, M. D. 56 
 
 William Weir, 60 
 
 William G. Haycock, 62 
 
 Leonard Baker, 63 
 
 Alexander J. M‘Williams, 64 
 
 SECOND DAY. 
 
 r 
 
 Thaddcus Phelps, 66 
 
 John H. Ball, 68 
 
 Michael M'Gowan, 69 
 
 Charles L. H. Schieffelin, M. D. 70. 104 
 John Nelson, M. D. 71 
 
 Francis Eloy Berger, 73 
 
 Mr. Hoffman’s opening, Ibid 
 
 Evidence for the prisoner. 
 
 Hosea Mulder, 83. 100 
 
 Col. James Warner, (police justice) 85 
 Jacob Hays, (high constable) 86 
 
 THIRD DAY. 
 
 Witnesses for the prosecution. 
 
 Churchill C. Cambreleng, 
 
 Wright Post, M. D. 
 
 Abraham Vervalen, 
 
 Major Richard Smith, 
 
 William L. Rose, (counsellor at law) 
 James W. Lovet, 
 
 Authorities read by Air. Griffin, 
 
 FOURTH DAY. 
 
 Mr. Ogden’s summing up for the 
 prisoner, 
 
 Mr. Emmet’s summing up for the 
 prisoner, 
 
 Mr. Griffin’s summing up for the 
 prosecution, 
 
 Mr. Wells’ summing up for the pro¬ 
 secution, 
 
 Charge of his honour the Mayor to 
 the Jury, 
 
 Points of his legal advice to the Jury, 
 
 FIFTH DAY. 
 
 Jurv retire at a quarter past one, 
 A. M. 
 
 At six o’clock P. M. same day, ver¬ 
 dict of Guilty, recommending the 
 prisoner to mercy, but disagreeing 
 on being polled—again sent out to 
 consider of their verdict. 
 
 Jury sent for by the Court, at half 
 past eleven P. M. same day, (Sa- ■ 
 turday) and not being able to 
 agree, are finally discharged, I 
 
 Motion by prisoner’s counsel to bail 
 instanter—Court divided and mo¬ 
 tion lost, 
 
 Motion to bail before his honour the 
 Mayor, on Habeas Corpus, 1 
 
 Abstract of statutes conferring the 
 powers of Judges of the Supreme 
 Court on inferior magistrates, 
 Opinion of Chief Justice Spencer, 
 and his order to admit the prisoner 
 to bail, 1 
 
 Errata, I 
 
TRIAL, &c. 
 
 AT A COURT OP GENERAL SESSIONS OF THE PEACE 
 
 Held in and for the City and County of New-York, on the 1 Bti 
 day of February, 1820 ; 
 
 PRESENT, 
 
 THE HONOURABLE CADWALLADER D. COLDEN, 
 
 MAYOR OF THE CITY OF SEW-Y01IK, 
 
 ASA MANN AND GEORGE B. THQRP, 
 
 ALDERMEjr. 
 
 THE PEOPLE vs. ROBERT M. GOODWIN. 
 
 On Motion in behalf of the Prisoner to be admitted to Bail. 
 
 Mr. Stephen Price opened the motion on behalf of the prisoner. 
 He said he rose to renew the application for bail, made on an early 
 day in this term. 
 
 His honour the Mayor observed, that the prisoner was not be¬ 
 fore the court, and that he considered it as a settled principle; that 
 no motion respecting a prisoner of the court charged with a felony 
 could be made, unless in his presence. 
 
 Mr. Price observed, that from the apparent preparation, and the 
 attendance of several counsel for the prosecution, the argument 
 might probably be long, and the delay inconvenient; but that he 
 was under the direction of the court. 
 
 The Mayor called upon Mr. Munro, also of counsel lor the 
 prisoner, who admitted the propriety of sending for him ; and an 
 order to that effect being made, after a short time bestowed in the 
 j ordinary business of the court, the prisoner was brought up, ac¬ 
 companied by his brother, captain Ridgely, and stood, during the 
 argument, within the bar, in the space on the right hand of the 
 { bench. 
 
 Mr. Price then proceeded to state to the court, that the prisoner 
 was on the 7th of January last, indicted for manslaughter, but was 
 not called upon by the District Attorney to take his trial during 
 that term. That during that term, an application was made that 
 he should either be tried, or admitted to bail; and he was told by the 
 District Attorney, that he was nc ready to proceed to his trial. The 
 present application, he said, was, that he should be admitted to 
 
4 
 
 bail, merely and solely on the indictment, which was on the files of 
 this court, and of which this court had full jurisdiction. 
 
 That this court was competent to try its prisoner, for the offence 
 of manslaughter, was beyond question. The only statute which 
 speaks of the offence, calls it an offence above the degree of petit 
 larceny, and in this very term, some trials have taken place for the 
 same offence, and some of the parties been found guilty, and others 
 acquitted. The court, then, having the power to try, and to discharge 
 the prisoner, has undoubtedly the power to make all intermediate 
 orders. The District Attorney may enter a nolle prosequi, and pro¬ 
 claim the discharge of any prisoner whom the court is competent 
 to try. The act declaring the powers of the Courts of General 
 Sessions of the Peace, 1 N. R. L. K. Y. p. 151, § 7, enacts, that 
 
 the said Courts of General Sessions of the Peace may, in their dis¬ 
 cretion, let to bail, prisoners arrested and in gaol, in their respective 
 cities and counties, for suspicion of felony', to appear at the next 
 court having cognizance of the offence, and where the same ought 
 to be tried.” 
 
 It here appears then, that this court may in its discretion let to 
 bail. The prisoner has been in confinement two terms, and ready 
 for his trial, and the court has been in the practice of bailing in 
 .such cases. In the case of Bovver man and others, which must be 
 in the recollection of the Mayor, after an indictment for grand lar¬ 
 ceny was brought in, for certain goods stolen from Mr. Beach, the 
 District Attorney having some doubts, took the opinion of the court. 
 1 thiuk it unnecessary, therefore, to detain the court with any fur¬ 
 ther argument, as to their power to bail. 
 
 It is true, that in this case, a coroner’s inquest is supposed to 
 interfere ; but that inquest being by law returnable into the Court 
 of Oyer and Terminer, and not here, cannot be noticed by this 
 court. Nor is this all : by the Constitution of the United States, 
 (5th article of the amendments) it is declared, “ that no person 
 shall be held to answer for a capital, or otherwise infamous crime, 
 unless on a presentme nt or indictment of a Grand Jury, except in 
 cases arising in the land or naval forces, or in the militia, when in 
 actual service, in time of war, or public danger.” 
 
 The Mayor. You will find other words in that article which it 
 may be material to consider. 
 
 The counsel then read the remainder of the article : “ Nor shall 
 any person be subject, for the same offence, to be twice pnf in jeo¬ 
 pardy of life, or limb ; nor shall he be compelled in anv criminal case 
 to be witness against himself ; nor be deprived of life, liberty or 
 property, without due process of law.” 
 
 Now, that a coroner’s inquest is neither an indictment, nor a 
 presentment of a Grand Jury, is very evident. 1 shall, however, 
 confirm it, by two most respectable authorities : 
 
 In Bac. ,1b. title Indictment, an indictment is defined to be an ac¬ 
 cusation at the suit of the king, by the oaths of twelve men at 
 least, and not more than twenty-three, of the same county wherein 
 iiie offence was committed, returned to inquire of all offences in 
 
5 
 
 general in the county, determinable by the court in which they 
 are returned, and finding a bill brought before them to be true. 
 But when such accusation is found by a Grand Jury, without any 
 bill brought before them, and afterwards reduced to a formal in¬ 
 dictment, it is called a presentment ; and when it is found by ju¬ 
 rors, returned to inquire of that offence only which is indicted, it 
 is called an inquisition. And the compiler cites in support of this 
 definition, 2 Hale, P. C. and 2 Burr. ]0C8.* 
 
 Mr. Price also cited 1 Chilly's Cr. L. 162, to show that an inqui¬ 
 sition could not be termed an indictment ; and to.show the distinc¬ 
 tion by explaining what was an indictment, and what an inqui¬ 
 sition, and read as follows : “ Ap indictment is a written accusation 
 of one or more persons, of a crime preferred to, and presented up¬ 
 on oath, by a Grand Jury, returned to inquire of all offences in 
 general in that county. It is the most constitutional, regular, and 
 safe, as well as by far the most usual mode of proceeding upon 
 criminal charges.” > 
 
 Munro, also on behalf of the prisoner, followed Mr. Price. 
 
 I make this application, to the discretion of the court, to bail the 
 prisoner, upon the indictment found by the grand jury, for man¬ 
 slaughter. On the 7th day of January last, he was committed by 
 the Mayor for manslaughter. On the 26th he was committed by 
 the coroner for the crime of wilful murder. And 1 confine my 
 application to that particular charge, of which this court has juris¬ 
 diction ; and that only, of which he stands indicted, before this court, 
 by a Grand Jury. I move that he be admitted to hail, or put upon 
 his trial, as the public prosecutor shall think fit. And 1 shall divide 
 my argument on this motion into these two inquiries : 
 
 1. Has this court the power to hail in cases of manslaughter ? 
 
 2. Is it, under all the circumstances of this case, fit and proper 
 to exercise that power ? 
 
 If either of these be decided in the negative, my application 
 must fail. 
 
 No doubt, I think, this court has that power. The statute, as 
 well as the charter of the city, gives it jurisdiction. And when¬ 
 ever the court has.the power to try, commit, and discharge a de¬ 
 fendant, it can certainly, by the common law, bail the party ac- 
 
 * Tt is thus reported by Sir James Burrows, whoit will he remembered was masterof 
 the crown office, that in Michaelmas term, 1. G. 3. Jinno Domini 1760 : “ On ti e Grand 
 Jury day, it was intended bv the sheriff’s, and pressed by the knights of the shire for 
 Middlesex, that all the principal gentlemen of the county (not fewer than fourscore 
 in number) should be sworn of this Grand Jury, in order to their being included in an 
 address to his Majesty, from and in the name of the Grand Jury of Middlesex, upon 
 his accession to the crown. But upon the sheriff’s mention of this tome, it seemed to 
 me to be irregular and improper to swear more than twenty-three : because, if a 
 number amounting to two full juries, or more, should be sworn, it might happen that 
 a complete jury of twelve might find a bill to be a true one, though other twelve of 
 the very same jury might reject it as an untrue one ; which would be inconvenient 
 as well as contradictory', and even somewhat ridiculous. 
 
 Lord Mansfield being informed of this, said it would he monstrous to swear four¬ 
 score ; and that the officer could not swear more than three and twenty 
 
 The Reporter, 
 
(S 
 
 cased. For whence, unless from the common law, did it acquire, 
 in any case whatever, the right to bail ? This court is held, under 
 the statute concerning the Majors’ Courts in the cities of Albany 
 and Hudson, and the Mayor’s Court and General Sessions of the 
 Peace in the city of New-York, 2 AT. R. L. 503. § 10. The 
 County Sessions wre held under the act declaring the powers of the 
 Courts of General Sessions of the Peace, 2 JV. R. L. 150. The 
 statute then that regulates the County Sessions, does not apply to 
 this court, and therefore the legislature did not say to this court in 
 so many words as it did to the others, you may bail if you think 
 tit, for it would have been quite unnecessary. And if 1 can show 
 that inferior courts can bail not only for this but for higher crimes, 
 this court may surely do so if it thinks tit. The superior courts, 
 such as the King’s Bench in England, and the Supreme Court of 
 this state, can bail in all cases—and why ? Because they have ju¬ 
 risdiction over all indictable offences. The right to try confers 
 the right to bail. To show that they have that right, and do exer¬ 
 cise it, in cases of high treason, murder, manslaughter, forgery, 
 rapes, libels, and all felonies and offences whatsoever, the counsel 
 read from 1 Chitty's Cr. L. p. 80 of the American edition. This 
 power was frequently used, he said, in cases of manslaughter, 
 and he particularly referred to the case of the King vs. Alagrath, 
 (2 Stra. 1212) where the prisoner was committed for manslaughter, 
 and it appearing to be no more upon the depositions before the co¬ 
 roner, the court admitted him to bail, according to Salk. 104. 
 The counsel also read as follows, from the King vs. Dalton, (2 Stra. 
 B 11 .) 
 
 The defendant had the misfortune to kill his schoolfellow at 
 Eton. And being brought up by habeas corpus to the Chief Jus¬ 
 tice’s house, it was returned that he was committed by the coroner 
 for manslaughter. It was therefore prayed he might be bailed. 
 But the Chief Justice said that was no reason, for if the depositions 
 made it murder, he would not bail: e contra, if they amounted only 
 to manslaughter, he would bail, though the coroner’s inquest had 
 found it murder. And he said the distinction was between the 
 coroner’s inquest where the court can look into the depositions, and 
 an indictment where the evidence is secret. That Lord Mohun’s 
 case in Salk. 104, was in point, (though that was at Holt’s chamber 
 and not in court) as the book reports it, and that the lords bailed 
 him after an indictment for murder was found. He said that 
 himself refused to bail Mr. Clifton, because he thought the de¬ 
 positions made it murder, though the inquest was manslaughter only. 
 The bail was four in £4000, and the Chief Justice said it was 
 usual to take them in a sum, or body for body: and w hen they are 
 taken corpus pro corpnre, it was a mistake to imagine the bail were 
 to be hanged if the principal ran away : but that the method was 
 to amerce them. 
 
 The counsel then referred to Lord Mohun’s case, (1 Salk. 104,) 
 which is thus : “ If a man be found guilty of murder by the coroner’s 
 inquest, we sometimes hail him, because the coroner proceeds upon 
 
7 
 
 depositions which we may look into : otherwise if a man be found 
 guilty of murder by a Grand Jury : because the court cannot take 
 notice of their evidence, which they are bound by their oath to con¬ 
 ceal,” &c. The counsel then proceeded : 
 
 I admit this bail is not de jure, but that we are applying to the 
 favour of the court, which will bail or not as it thinks fit, under all 
 the circumstances ; and, therefore, having first shown that it has the 
 power to bail, the next point is, whether, having this power, 
 it will exercise it in this particular case. 
 
 We do not seek to disturb the finding for murder ; to that the 
 prisoner is bound to answer before the Court of Oyer and Terminer. 
 We wish only to be set at liberty from this charge, that we may not 
 be embarrassed with it when we apply to the superior court to bail 
 as upon habeas corpus for the charge of murder. The prisoner 
 has been already confined in close custody two terms, during which 
 the public prosecutor might have tried him if he would. The Oyer 
 and Terminer will not be till the month of April, and why should 
 he be detained till then upon, this charge ? His appearance there 
 will be secured and enforced : first, by the bail given here, and 
 secondly, upon that given upon the lrnbeas corpus, if he should suc¬ 
 ceed in that application; and if he should fail, by his remaining a 
 prisoner. As to the offence of which this court has cognizance, the 
 punishment is not greater in case of a conviction than that inflicted 
 in many cases of misdemeanor; for punishment in the state prison is 
 no necessary part of the sentence. If the court see fit, they may 
 make it simply fine and imprisonment. 
 
 I know not yet what arguments will be urged in opposition to 
 this motion ; a case has been just put into my hands, the report of 
 Mr. Selfridge’s trial, ( p . 8.) where it is said that the prisoner 
 was recognized de die in diem. So it appears that in a case of 
 great importance, and which excited such strong feelings, the court 
 nevertheless did bail the prisoner. 
 
 The Mayor here took occasion to observe, touching the punish¬ 
 ment of this offence, that it was only to be found in the 5th section of 
 the act declaring the punishment of crimes; where it is enacted that 
 persons convicted or attainted ot burning an uninhabited dwelling 
 house, or house of worship, or barn, or gristmill, or of any offence 
 specified in the first section of the act to prevent forgery, the pu¬ 
 nishment whereof is not provided for in the last preceding section, 
 or of any felony other than such as are herein above enumerated, 
 and directed to be otherwise punished, and above the degree of 
 petit larceny, &c. &c. shall be adjudged, on a consideration of all the 
 circumstances, to imprisonment in the state prison for any term not 
 more than fourteen years. (1 R. L. N. Y. 409.) By that section all 
 felonies not enumerated in the statutes or sections there specified, 
 and which are above the degree of petit larceny, are punishable by 
 imprisonment in the state prison ; for, by the 14th section of the 
 same act, we cannot imprison in the state prison for less than three 
 years : so that unless we punish him for three years sn the state 
 prison we cannot pu»ish him at all. 
 
8 
 
 Mr. Alunro acknowledging this to be so, proceeded : If it be said 
 that he stands indicted for murder, and that the coroner has certi¬ 
 fied the finding into this court. 1 answer, he has done w hat lie ought 
 not to have done. It was made his duty by the first section of the 
 act concerning coroners, (1 jV. R. L. jX. Y. 150.) to return his in¬ 
 quisition to the Over and Terminer. This court, therefore, cannot 
 take judicial notice of that inquisition. If it could, it couid go fu* tlier, 
 and examine whether it was such an inquisition as the prisoner 
 could be tried upon. And, though, in England, it may be so, and it 
 may have been done in one or two instances in this state, yet, pro- 
 babl}', this is the first time it has been questioned or examined. It 
 is not, truly speaking, either a presentment or an indictment; and, 
 I have found but one single book where a coroner’s jury is called 
 a grand jury. In Dallun's Sheriff they are called grand juries 
 or not, according to the number of which they consist: if of twelve, 
 it is called a petit jury, if of more, a grand jury. The jury, in a 
 Grand Assize, is called a grand jury. So under the statute of forci¬ 
 ble entry, or to abate a nuisance. And 1 have doubted whether the 
 legislature did not meatvto exclude a finding or inquisition of office, 
 for all the other books make a clear distinction between them. 
 
 Blackstone (4 Com. 301-2.) says, “ A presentment, generally 
 taken, is a very comprehensive term : including not only present¬ 
 ments, properly so called, but also inquisitions of office, and indict¬ 
 ments by a grand jury. A presentment, properly speaking, is the 
 notice taken by a grand jury of any offence from their own know¬ 
 ledge or observation, without any bill of indictment 1 fid before them 
 at the suit of the king : as the presentment of a nuisance, a libel, or 
 the like, upon which the officer of the court must afterw ards frame 
 an indictment, before the party presented can be put to answer it. 
 An inquisition of office is, the act of a jury summoned by the proper 
 officer, to inquire of matters relating to the crown, upon evidence 
 laid before them. Some of these are in themselves convictions, and 
 cannot afterwards be traversed or denied, and therefore the inquest 
 or jury ought to hear all that can be alleged on both sides. Of this 
 nature are all inquisitions felo tie se ; of flight of persons accused of 
 felony ; of deodands, and the like. Other inquisitions may be after¬ 
 wards traversed and examined, as particularly the coroner’s inqui¬ 
 sition of the death of a man, when it finds any one guilty of homi¬ 
 cide : for, in such cases, the offender so presented must be arraign¬ 
 ed upon this inquisition, and may dispute the truth of it ; which 
 brings it to a kind of indictment, the. most usual and effectual means 
 of prosecution, and into which we will therefore inquire a little 
 more minutely. 
 
 “ An indictment is a written accusation of one or more persons, 
 of a crime or misdemeanor preferred to and presented on oath by a 
 grand jury. To this end, the sheriff of every county is bound to 
 return to every session of the peace, and every commission of 
 Oyer and Terminer , and of every goal delivery, twenty-four good 
 and lawful men of the county, soma out of everv hundred, to in¬ 
 quire. present, do, and execute all those things which, on the part 
 
of our lord the king shall then and there be commanded them. 
 They ought to be freeholders, but to what amount is uncertain : 
 which seems to be casus omissus, and as proper to be regulated by 
 the legislature as the qualification of the petit jury ; which were 
 formerly vague and uncertain, but are now settled by several acts 
 of parliament.” 
 
 The common law then (for it is that the author here lays down) 
 defines an indictment to be the finding of a grand jury, found by 
 freeholders, though the amount of their freehold is not specified. 
 Our statute only says that the coroner must inquire by good and 
 lawful men. Whether this has been so done in this case does not 
 appear. A coroner's inquest is an inquest of office, signed by the 
 coroner and taken under trie direction of the coroner. An indict¬ 
 ment is the finding of a grand jury under the guidance and direction 
 of a court, with the assistance of the knowledge of the public pro¬ 
 secutor, and the aid of the learning and wisdom of the judges to 
 guide and direct them. The officer in this instance is not a lawyer, 
 for even with the statute before his eyes, he certifies his inquisition 
 into this court, instead of that into which the constitution requires 
 that he should certify it. When this constitution was framed it was 
 with great care. Various amendments were proposed, amongst which 
 this one was adopted : (article 5, Amend.) r I hat no person should 
 be put to answer for a capital or otherwise infamous crime, unless 
 upon a presentment or indictment of a grand jury.” And if there 
 be any doubt whether this coroner’s inquisition be an indictment 
 by a grand jury, it ought to be construed in favour of liberty and 
 in the spirit of mercy. If this be a privilege intended for every 
 citizen and for every person accused, let it not be infringed. Let us 
 not undermine the ground upon which we stand, when little good 
 can accrue to the public, but great evil to the individual. 
 
 Blake, for the Prosecution. From the various forms this applica¬ 
 tion has assumed from the beginning, I shall, instead of answering 
 every thing that has been said, simply present to the court the view 
 1 have, upon deliberation and mature consideration, formed ; and, 
 however acute my feelings may be, 1 shall treat the subject with 
 the calmness and moderation which a legal investigation requires. 
 
 The application is to bail Mr. Robert M. Goodwin, who stands 
 here indicted for manslaughter, and against whom there is also an 
 inquisition for murder, signed by twenty-four men, in conjunc¬ 
 tion with the coroner himself; which, if it be not so in the strict¬ 
 ness of the term, is at all events equivalent to an indictment by a 
 grand jury ; being that upon which the attorney-general may 
 prose<^ite the defendant before any court having competent juris¬ 
 diction. 
 
 I shall range my argument under these two propositions, of which 
 I shall endeavour to support the truth by reason and authority. 
 
 1. By the laws of England, as well as those of this country, an- 
 inquisition for murder by the coroner is equivalent to an indict¬ 
 ment by a grand jury. 
 
 2. That a party charged with two offences of different degree, 
 
 2 
 
10 
 
 oanuot be bailed for the minor offence, neither by the common law, 
 nor by any statute of tiiis state. 
 
 By the common law, no prisoner is entitled to be bailed unless 
 there has been a delay of justice, and this is the tirst session in 
 which he has ever offered himself for trial. It is so iu England, and 
 it is the same by due construction of our laws and constitution. Tor 
 1 lake this to be an unquestionable truth, that we have adopted 
 every part of the common law of England that is not n pugnunt 
 to our usages, and where neither our constitution nor any of our 
 statutes has made an alteration ; or, in other words, that the com¬ 
 mon law is the law of our land, unless where it may be contrary to 
 our constitution or our statutes. 
 
 1 also hold every state in our Union to be a distinct and separate 
 sovereignty ; and, being so, that every offence against tbe laws and 
 peace of a state must be tried by the tribunals of that state, nor can 
 any thing in the constitution of tbe United States be supposed to for¬ 
 bid it. This state tins adopted the common law, and has retained its 
 municipal code in every particular, except those where it has made 
 a precise specitic delegation of some part of it. And it cannot be 
 shown that the trial or punishment of any offences other than those 
 against the United States and their laws, can be tried or legislated 
 upon under the constitution or laws of the United States. 1 shall, 
 therefore, apply the common law and the laws and constitution of 
 this state to the case in hand, and not the law or the constitution of 
 the United States, which have no lelerence to it. And Lord Hale 
 has laid it down (2 Hale , PI. 222.) as a rule to be observed, that 
 where there is an inouest for murder, and an indictment tor man- 
 slaughter, it is usu.d to arraign him lirst for the greater and not the 
 minor offence. 
 
 And why should not this be tbe law of this state ? The constitu¬ 
 tion secures all the priv ileges of trial by jury, as amply as the Mag¬ 
 na Ckarta of England. And the laws of this st.ite, that right being 
 already secured, are silent upon the subject. Tbe framers of tbe 
 constitution of the United States had to provide for the organization 
 of the powers delegated to the general government for national 
 purposes. They had no powers but what were delegated to them, 
 nor could there be any laws but such as were made in pursuance 
 of those delegated powers. It was found that the constitution had 
 not provided ior the triai by' jury, which every one of the sever.il 
 states iiad previously derived and adopted from the common law. 
 It was to assimilate the jurisprudence of the United States, to that 
 of the individual states, in this important feature, that the amend¬ 
 ment referred to was made. 
 
 The gentlemen had said, it was to give the trial by jury to the in¬ 
 dividual states. Had they not it before ? Yes; but the United Slates 
 had it not before. They could have it only from the constitution. 
 The constitution had not established it. This omission being observ- 
 ( I, the constitution was amended in order to supply the delect. 
 The individual states never intended to give away their sovereign¬ 
 ty, nor any part of it beyond what was necessary for national 
 
11 
 
 and general purposes ; and least of all, the power of saying whe¬ 
 ther they should or should not enjoy the right of trial by jury. 
 And a principal reason for the adoption of this amendment was, to 
 prevent the use of inquisitions of office, which had been so much 
 complained of and so odious. It was, therefore, to fill up this chasm, 
 and to give the code of the United States the same advantage as that 
 of the several states always possessed, that it was adopted. 
 
 These arguments then, derived from the amendment of the con¬ 
 stitution of the United States, being refuted, we return to the ficts 
 in the cause. Here are two verdicts against the prisoner for the 
 same homicide, which no authority save the attorney-general of 
 the state is competent to sever ; nor is it competent to this cour t to 
 bail upon that for felonious homicide, whilst the other for wilful 
 murder subsists in full force. When it is laid down so clearly by 
 such an authority as Hale, that it is not competent for any court to 
 bail for the minor olfence, nor put the party on his trial for it, till 
 the greater is disposed of, will this court take such responsibility 
 upon itself? 
 
 As to the complaint of delay. The habeas corpus act has given 
 to every prisoner in custody, upon a charge of treason or felony, 
 a mode of redress, if he chooses to resort to it; w hich is, to pe¬ 
 tition the first w'eek of the term, or the first day of the sessions of 
 Oy er and Terminer or goal delivery, to he tried ; and. then if not in- 
 di ted in that term or session, to he hailed ; and if not indicted and 
 tried the ensuing term or session, to he discharged. 
 
 Now there has been no session of Oyer and Terminer, of course 
 no petition on his part, nor delay on that of the prosecutor. And 
 in this court the prisoner has presented no petition. And in no 
 case of felony, after indictment found, is the party entitled to bail, 
 unless justice has been delayed. 
 
 The counsel then read from the statute above quoted, touching 
 the duty of the coroner, (1 R. L. 160.) to show that when the inqui¬ 
 sition was returned into the Oyer and Terminer, the court were 
 bound to proceed “ thereon .” Whereon ? Why upon the inquisi¬ 
 tion, the only thing spoken of. Upon the charge contained in that 
 finding. This confirms what I say of the meaning of the amend¬ 
 ment to the U. S. Constitution, and satisfies the words of it, how¬ 
 ever interpreted : since an inquisition is, to all intents and purposes, 
 an indictment in every thing but the name. If it were not so, the 
 law would have been otherwise expressed, and it would have said 
 that the inquisition should he filed not to be proceeded upon, but 
 that an indictment might he found and proceeded upon. 
 
 There have been cases, it seems, of prisoners being bailed 
 after indictment and inquisition found ; but from the days of Alfred 
 through all the reigns of Hcnrys , Edzvards, and the rest, has there 
 been one solitary instance of any one like this where it was even 
 asked ? 
 
 In the two cases cited from Strange, and one from Salkield , the 
 judges have said they would look into the depositions upon the co¬ 
 roner’s inquest, and if they amounted to manslaughter, they would 
 
12 
 
 bail ; if to murder, they would not. And that thoughIhev could not 
 look into the evidence on an indictment, the jurors being sworn to 
 secresy, they could upon the inquisition, and would do so, and regu¬ 
 late their discretion thereby. When they bailed upon the coro¬ 
 ner’s inquest, then upon what'ground was it? Because upon that 
 evidence the charge was light and venial. Will it be found so 
 here ? 
 
 In Lord Mohun's case, the Chief Justice says he never will bail 
 where there has been a finding for murder. And certainly it has 
 beeu done in no case but where there has been preponderating cir¬ 
 cumstance* to raise a strong presumption of innocence. 
 
 The .Mayor here adverted to a case where this court did bail after 
 an indictment for felony. There the prisoi ers were brought into 
 court by their bail and delivered up by them ; or as it would be 
 termed in a civil case, surrendered, that is, brought in by their bail 
 in discharge of their recognizance. Two persons were bailed be¬ 
 cause the magistrates had thought it a tit case for bail, and the court 
 did not think proper to interfere : but there is no case where a 
 party has been fully committed for a felony, that he has been bailed 
 as of course, though there have been many applications to this 
 court. I have always said that it was not of course, but at the same 
 time, that the court have not the power to bail, is a position that I 
 deny. 
 
 Trice. In the case cited of Bowerhan and Fitzgerald , the court 
 thought proper to order one of the defendants to be bailed and the 
 other two to be committed. 
 
 The Mayor. Those two persons were merely continued over 
 upon bail, which vva* nothing more than not undoing what the ma¬ 
 gistrates had done, we conceiving that they had exercised a just dis¬ 
 cretion. 
 
 Price. Still it serves to show that the court will bail after an in¬ 
 dictment found. 
 
 Blake. There may and must have been a great many cases in 
 criminal law, where there has been little consideration. And such, 
 perhaps, was this, where the court did not so much exercise its own 
 judgment as acquiesce in what had been done, being not inclined to 
 undo what the magistrates had done. But I still maintain that there 
 has been no case where there was a finding by a coroner of wilful 
 murder, and the court have bailed without looking into the depo¬ 
 sitions upon which it was found. And if the court has looked into 
 these, what has it seen ? Was there not premeditated malice ? Was 
 there not a letter from the prisoner, when in gaol, fraught with 
 vengeance ? Was there not a challenge afterwards to fight a duel, 
 which the law', in case of death, has pronounced to be a murder? 
 Was there not an exchange of canes, and was not the deadly weapon 
 received in this exchange the same that was driven through the 
 heart of the deceased ? Was there not a parading in Broadway 
 in order to waylay him ? Was there not an assault in open day and 
 in the public street, with an upraised weapon and provoking words ? 
 And when the deed was perpetrated, did not the slayer fly 1 
 
13 
 
 Mr. Price here interposed, and appealed to the court whether 
 these topi -s were relevant to the motion, and whether the counsel 
 should be permitted to inflame the minds of the by-standers by 
 assertions that were not warranted by any thing at present before 
 the court. 
 
 Mayor. Whenever the question comes to be considered whether 
 the merits are such as to influence the discretion-of the court, it 
 may be right to examine into the merits. We will first decide the 
 preliminary point, whether by law, without entering into these par¬ 
 ticulars, the prisoner may be bailed, or whether he cannot. 
 
 Blake. This honourable court will, I trust, at all events, before 
 it will decide to bail, look into the record. 
 
 The Mayor. Supposing the court should decide that it can bail, 
 then it will depend upon the merits whether we shall think it tit in 
 this case to exercise that power : but we must first know whether 
 the coroner’s inquest is so far before us that we can look into it. 
 
 Mr. Blake proceeded no farther, and Mr. Munro begged leave, 
 before the other counsel for the prosecution went on, to submit to 
 the court the concluding phrase of the sixth section of the “ act to 
 prevent unjust imprisonment, by securing the benefit of the writ of 
 habeas corpus ,” which is in these words : And if any person in¬ 
 dicted as aforesaid shall not be brought to trial at the second term 
 of the sessions, or first court of Oyer and Terminer after his com¬ 
 mitment, he shall be discharged as far as relates to any treason or 
 felony for which he was committed as aforesaid, unless satisfactory 
 cause be shown by the public prosecutor for not bringing him to 
 trial.” (1 R. L. N. Y. p. 356.) Saying nothing of presenting a pe¬ 
 tition. 
 
 Griffin, for the Prosecution. It has been correctly decided, that 
 in felonies above the degree of petit larceny, the accused person 
 has not the right to be admitted to bail de jure. The ordinary, the 
 natural course is, not to bail when the party is committed for trea¬ 
 son or for felony. Not only it is not matter of right, but the na¬ 
 tural course is not to bail the prisoner, which is manifest from the 
 habeas corpus act itself, which goes as far as any other act in favour 
 of the liberty of the citizen. All persons committed for treason or 
 felony plainly set forth, are not however within that pale of 
 the subject or the citizen. That statute gives the right to the 
 prisoner so committed, when there has been a delay of justice, and 
 he has followed the course specifically pointed out. The onus al¬ 
 ways lies upon the applicant, who must show some strong and cogent 
 reasons why one so accused and charged should not answer in per¬ 
 son the penalties of violated law. The history of bail is this : 
 In the barbarous times of the 12th and 13th centuries, all persons 
 were admitted to bail, and the consequences were enormous ; and 
 nothmg could better prove the viciousness of that principle, than 
 the disorder of those times, till the I. Edward put an end to such 
 licentiou- impunity. In the year 1275, the statute 3 Edw. I. c. 15, 
 called the statute of Westminster 1 . was made, and soon after 
 followed by the statute 6 Edw. I. c. 9. By these statutes, the 
 
power of bailing in treason or felony is taken away, except in one 
 class of cases ; that is, where there is a reasonable presumption of 
 innocence. But where there is a presumption of guilt, the power of 
 bailing is not legally in any court, either in England or this country. 
 It in such cases courts will venture to unlock the prison doors, and 
 send torth the criminal to prowl upon the community, and perpe¬ 
 trate new crimes against society, they do that which, reasonably 
 speaking, they cannot do. They do it because they have the phy¬ 
 sical power merely. 
 
 Hawkins says, (PL Cr. b. 2. c. 15. §. 39 & 40.) that bail is only 
 proper, where it stands indifferent whether the party be guilty or 
 innocent of the accusation against him, which it often does before 
 trial ; but when that indifference is removed, it would be absurd to 
 bail him. And the 53d section of the same chapter is to the like 
 effect. And in cases of homicide, if the prisoner is clearly the 
 slayer, and not merely suspected to be so, this is said not to be 
 bailable, although it appear to the justice that the killing was in 
 self-defence ; though the latter position seems questionable. (1 Cliit- 
 ty Cr. L. 95.) And in p. 96 it is said, persons guilty of affrays may 
 be bailed or uot, at the discretion of the magistrate ; but he ought 
 to be very cautious how he takes bail, if a wound is given from 
 which death may probably ensue. And in p. 99 this author again 
 says, after recapitulating the plenary powers of the justices of the 
 King’s Bench, that it is not usual for that court to bail in cases 
 of felony, unless when, in consequence of the defect of the com¬ 
 mitment, and of the examination and depositions, it appears doubt¬ 
 ful whether any offence has been committed. 
 
 And though the statutes do not nominally reach the*judges of the 
 superior courts of Westminster-Hall, nor those of the superior 
 courts of our own country ; yet, though not expressly named, they 
 take those statutes as their rule. (Hawk. PI. Cr. b. 2. c. 15. §. 79. 
 1 Chitty Cr. L. 96.) And accordingly, in the use of their discretiona¬ 
 ry power, they bail when the statutes give the right to bail, and 
 refuse when they prohibit; for they were not intended so much to 
 abridge the power of justices and sheriffs, as to fix the principles 
 of criminal law. And the principle stated by Black stone (4 Coj/i. 298) 
 is unanswerable : that the law visits the person, and not the purse 
 of traitors or felons. And that offenders shall not substitute their 
 money for their persons, when they' have rendered their persons 
 responsible by their crimes. The majesty of the law is insulted in 
 such cases by the offer of money ; and although the statutes may 
 only speak of justices and sheriffs, and the superior magistrates may r 
 have a higher discretion, yet certainly they will never feel them¬ 
 selves less interested, or think themselves less bound to vindicate 
 the law. 
 
 And what a principle it would he to establish, that the poor man 
 should be taken, committed, tried, convicted, sentenced and punish¬ 
 ed, whilst the wealthy culprit has only to calculate how much it 
 will cost him to gratify the worst passions of his nature ! But 1 for¬ 
 bear for the present making any application of these principles. It 
 
15 
 
 may be we shall be obliged to go into the merits of Ibis particular 
 case in the course of this proceeding ; for the present I refrain. 
 
 The King’s Bench, it will appear by the reports, has uniformly 
 refused bail in all such cases ; unless where some extraordinary 
 circumstances have given them cause to believe the prisoner was 
 not guilty. 
 
 In a case where the prisoner stood committed for stealing, or re¬ 
 ceiving.stolen goods, which was by statute made punishable with 
 transportation for 14 years, where the law was not altogether free 
 from doubts whether his offence was felony, yet bail was refused 
 by the King’s Bench. (King against Wyer, 2 D. & E. 77.) The of¬ 
 fence in its worst aspect was not as grave as this manslaughter. 
 
 And in a case of still lighter character, where the principles were 
 more developed, and better defined, the case of the King against 
 Marks and others, (3 East, 157.) certain journeymen clothiers 
 were charged with administering oaths, not specifying the offence. 
 But the depositions which were returned into the King’s Bench, 
 with the writ of habeas corpus, stated the offence very fully, which 
 was not to divulge the secrets of an association, or committee, of a 
 combination to raise wages. The prisoners were not committed 
 for felony. There was much debate whether the charge amount¬ 
 ed to felony, or was within the act of parliament at all, which made 
 it an offence. The judges themselves doubted, and yet they re¬ 
 manded the prisoner, because they saw no reason to doubt the truth 
 of the facts ; and being committed for what might be a felony, 
 and no presumption that they had not done the acts charged, there 
 was not that presumption of innocence which could induce the 
 court to bail them. 
 
 I have so tar endeavoured to establish two propositions : 
 
 1st. That the British statutes which marked the transition from 
 anarchy and terror, to justice and good order, are of the essence 
 of our code. That the regulations which took from the rich the 
 power of perpetrating wickedness with impunity, were not aban¬ 
 doned by our forefathers, but that they brought them with them a* 
 [he foundation stones of their future freedom, and transmitted them 
 as a birthright to their posterity ; and that their posterity has, and 
 aurs, 1 trust, will, cling to them as to the religion in which they 
 place their hopes. 
 
 2d. That unless there has been a reasonable presumption of 
 • nnocence, even when it appeared that the prisoner had committed 
 i felony, and that felony of the lightest and most doubtful kind, bail 
 has been refused. 
 
 I then come to the cases of manslaughter.-It would be 
 
 massing strange indeed, if the law had created an exception in the 
 nstance of manslaughter, which takes in all the range between the 
 ixcusable act of self-defence and the horrid crime of premeditated 
 nurder : in its lightest degree it is a felonious homicide, and 
 :ertainly above the degree of petit larceny. In the graver in- 
 tances, ii comes so near the atrocity of wilful, deliberate, and 
 iremeditated murder, that we look in vain into the transaction, in 
 
1C 
 
 vain into the nature of the human heart, to find the shade of differ¬ 
 ence. 
 
 There are but three reported cases where the party accused ol 
 manslaughter has been admitted to bail. In the case in Massachu¬ 
 setts, it appears to have been by consent. 
 
 In Bex vs. Dalton , (2 Stra. 911) a boy at Eton school had had the 
 misfortune to kill his schoolfellow, possibly, and probably in some 
 boyish sport. By the course of the law he was arrested, and an 
 indictment was found for manslaughter : and doubtless there must 
 have been such circumstances as created a presumption of his 
 innocence. 
 
 In the two other cases from 2 Stra. 1242, and 1 Salk. 103, it 
 does not appear what the circumstances were. They may have 
 been such as to ensure the pardon of the prisoner. Can these au¬ 
 
 thorities then warrant an inroad on long prevailing and justly 
 
 cherished principles ? 1 am still going on the supposition that this 
 court has the same power as the highest courts in England possess, 
 to bail in criminal cases. In the case of the King against Keat (1 
 Salk. 103) “ the prisoner was indicted of murder, and also of stab¬ 
 bing, and the jury found him guilty of manslaughter, and as to the 
 rest, found a special verdict : and bail was denied, for he was ex¬ 
 pressly found guilty of manslaughter, and in that case bail is nevei 
 allowed till clergy had.” 
 
 By the report in 5 Mod. of the same case, it appears that it was | 
 urged to the court that the prisoner was a man of quality, which] 
 means, of the order of the nobility, or of a noble family ; some ' 
 thing above the common order ; but that went as it ought to do, foit 
 nothing. 
 
 Elementary writers, long after those loose notes were written \ 
 have deduced the true consequences, and given the doctrine asl 
 established by the decisions most approved of in their time. Anc 
 Hazvkins, speaking of the Stat. Westm. l,says, that notwithstanding 
 neither the Judges of the King’s Bench, nor those of any other su¬ 
 perior court of justice are within the purview of it, yet they nil 
 always, in their discretion, pay a due regard to the rules prescribec 
 by it : “ and therefore,” he says, “ it is difficult to find an instance 
 where persons attainted of felony, and convicted thereof by ver j 
 diet, general or special, or notoriously guilty of treason or man 
 slaughter by their own confession or otherwise, have been admit¬ 
 ted to the benefit of bail without some special motive to induct 
 the court to grant it.” 
 
 In Com. Dig. title Bail, F. 3, it is laid down that the King’s Benclj 
 will not bail tor treason or murder unless there be a reasonable 
 cause. 
 
 “ And w here a man is accused oidy of manslaughter and not, 
 liquet that he committed the fact, he may be bailed.” 
 
 How 1 far the examination of the facts in this cause, and the appli 
 cation of these principles to the case, may become our melancholy 
 duty, I do not now say. If it does become necessary, it will giv< 
 me nothing but pain and anguish. 
 
17 
 
 I have now examined the principles generally upon which bail is 
 allowed, and endeavoured to bring them home to the case of man¬ 
 slaughter ; and to show how far the King’s Bench, which has the 
 most ample range, would feel themselves empowered to bail in a 
 case like this. I have appealed to one principle which is incorpo¬ 
 rated in the very foundation of the criminal law, too ancient, too 
 good, too sacred to be disrespected. God forbid it ever should. 
 No court, however high its power, has yet presumed to take away 
 the lien which the law has on the person of the prisoner, and give 
 in its place a mere lien on his property, unless there be at least 
 some reasonable presumption of his entire innocence. The coun¬ 
 sel have not attempted to show any thing of this kind. They have 
 very judiciously precluded all inquiry into the evidence, but they 
 ask of the court to bail a prisoner who stands simply indicted for 
 unlawfully taking the life of his fellow citizen, and they offer no 
 tittie of evidence that could create in the breast of charity itself, 
 which hopeth all things and is willing to believe all things, a hope 
 that the prisoner is innocent of that charge at the least. 
 
 The argument founded upon a supposed delay of justice, I an¬ 
 swer in a word. The prisoner was arraigned on the eighth of 
 January. He was called on by the district attorney and asked 
 if he was ready for his trial : and his answer was, that he w as not. 
 
 Mr. Price. The counsel’s statement is incorrect as to this fact. 
 The prisoner, on the Monday following his arraignment, gave no¬ 
 tice to the district attorney that he was ready for his trial. 
 
 Griffin. At the opening of the session the prisoner was arraigned, 
 and asked if he was ready, and publicly announced that he was not. 
 It would be sufficient to say that he had not put himself upon the 
 right that the statute gives him, to petition for his trial and be bail¬ 
 ed, and finally discharged in failure of the public prosecutor to 
 bring on his trial- He has not put himself upon that right which 
 the statute gives him, yet asks it of the court. 
 
 Far be it, however, from me, or any person concerned in this 
 cause, or having any agency in the prosecution, to delay it for a 
 moment. We put ourselves upon the broad position, and call upon 
 the counsel for the prisoner to negative any part of it. 
 
 I might ask, would this court explore new ways, and make new 
 precedents, where courts of universal jurisdiction had never ad¬ 
 ventured ?—when a higher tribunal has jurisdiction and present 
 cognizance of the offence ?—when the attorney general has declared 
 his intention of trying this very prisoner tor the very same act, at 
 the very next ensuing court of Oyer and Terminer ? 
 
 d'he statute authorizes bail when there is but suspicion of felony; 
 so far only it goes. Does the unfortunate event here admit of any 
 uncertainty ? Does the accusation rest upon suspicion ? He 
 stands indicted by a grand jury of manslaughter : and twenty- 
 four men, by inquisition taken upon their oaths, have pronoun¬ 
 ced him guilty of murder. Is that nothing but suspicion ? Is 
 not our law the same as that of England on this point, or wherein 
 
 3 
 
18 
 
 does it differ? Does it not use the same words of exception in de¬ 
 signating the persons to be bailed, as the stnt. 1 Westm. 3 Ed. I. c. 
 15. viz. “ persons in custody on light suspicion ?” (See the act de¬ 
 claring the powers of courts of General Sessions of the Peace, 2 
 JV. R. L. N. Y. 150. § 7.) 
 
 Let us see then, whether in England the court of Oyer and 
 Terminer, extensive as its jurisdiction is, has the power to bail 
 in manslaughter, though the court of King’s Bench may do it in 
 their discretion. (Armstrong vs. Lysle, 1 Salk. 61.) 
 
 The judges of this court here, on the first day that this was stirred, 
 expressed strong doubts of their power to bail in any case of man¬ 
 slaughter. But here, at all events, is no ground whatever, no delay, 
 no presumption of innocence ; and the question is no other than this : 
 whether this court will exercise a prerogative which the Oyer and 
 Terminer in England do not assume, and which the highest court 
 of criminal jurisdiction do not exercise, except where there is evi¬ 
 dent and plenary presumption of innocence. 
 
 Thus far 1 have considered the case as of a simple indictment for 
 manslaughter, but there is another melancholy feature, which can¬ 
 not be overlooked. There is upon record an inquest found by a 
 coroner and twenty-four men on oath, that the prisoner is guilty of 
 wilful murder. To which the only answer given is, that it is not 
 officially before the court; and, therefore, that the court will not 
 take notice of it. What! in an appeal to the discretion of the court, 
 to bail a man presented for manslaughter, where the court must 
 not bail but upon the circumstances of the case, and strong pre¬ 
 sumptions that he has not committed the offence he is charged with ? 
 Are the court to shut their eyes against the evidence of a record of 
 their own, which pronounces him guilty of the same act in a still 
 more aggravated sense ? In an appeal to the discretion of the court, 
 the gentlemen are too well read in law to put their application 
 upon any other ground. Can judicial magistrates shut their eyes 
 against what all the world are bound to know and notice ? A re¬ 
 cord ' and not only that, but one filed in their own court and under 
 their own eyes. If the whole community, if the whole world are 
 bound to recognise it, can it be asked of this court, whose know¬ 
 ledge of it is most unavoidable and necessary, whether it ought 
 strictly to be filed in this court or the Oyerand Terminer, to blot out 
 all knowledge or remembrance of what they see as it were before 
 their eyes ? 
 
 Let us see how this would be considered, and how the proceed¬ 
 ings would be in England ; and it will be then only to see whether 
 in this state, or in the United States, there is any thing that has al¬ 
 tered that law or prescribed any different course. 
 
 The counsel here read from 1 Chitty's Cr. L. 163-4, to show 
 that the prisoner may be indicted upon either finding, and if acquit¬ 
 ted on the one, to plead a former acquittal when arraigned on the 
 other. And the case of Mary Cole , from 3 Camp. JV. P. 372, where 
 the prisoner was charged with concealing the death of a bastard 
 child. The bill of indictment was not found, yet the court tried 
 
19 
 
 the prisoner »n the inquisition, and inflicted the punishment due 
 to the offence. 
 
 Now, if such be the law and the practice in England, why should 
 it be different with us ? The amendments to the constitution of the 
 United States do not touch proceedings in the state courts. The 
 first article does not say that state legislatures shall not make such 
 and such laws, but only means that congress shall make none such. 
 And in the same sense is the 5th article to be understood, when it 
 says that “ no person shall be held to answer for a capital or 
 otherwise infamous crime, unless on a presentment or indictment 
 of a grand jury, except in cases arising in the land or naval forces, 
 or militia in actual service,” &c. Answerable where ? Surely in 
 courts instituted by the general government, under the powers 
 given by the constitution, and administering that constitution and the 
 laws of congress within and under the authority and jurisdiction of 
 congress, and no other where. 
 
 By the 10th article, “the pow’ers not delegated to the United 
 States by the constitution, nor prohibited by it to the states, are re¬ 
 served to the states respectively, or to the people.” And by the 
 11th, “the judicial power of the United States shall not be con¬ 
 strued to extend to any suit in law or equity, commenced or pro¬ 
 secuted against one of the United States, by citizens of another 
 state, or by citizens or subjects of any foreign state.” Thus do all 
 those provisions begin, proceed, and end, in nothing else than re¬ 
 straining and limiting the extent of the delegated powers of con¬ 
 gress ; and are intended to show the extent of what was given, and 
 what remained in the great reservoir of the state governments and 
 constitutions, and in no other manner do they concern the original 
 jurisprudence of those states. What has any state to do with the naval 
 forces ? Can the bill of rights of a state be for nothing ? Or is it not 
 there we should look to see if there be any thing confining trials 
 in all cases to indictments by grand juries ? 
 
 The 4th section of the act concerning the rights of the citizens, 
 or the Bill of Rights of this state, says, that “ no person shall be 
 put to answer without presentment before justices, or matter of 
 record, or due process of law according to the law of the land.” 
 
 The third had said before, that no citizen of this state should be ta¬ 
 ken or imprisoned for any offence upon petition or suggestion, unless 
 it be by indictment or presentment of good and lawful men of the same 
 neighbourhood where such deeds be done, in due manner or by 
 due process of law. Here is a provision that presentments shall 
 be by good and lawful men ; and that proceedings shall be in due 
 manner, and by due process of law. And the counsel have admit¬ 
 ted that convictions have taken place in this state, founded upon 
 coroners’ inquisitions. AVe cannot suppose these to have been against 
 the law. 
 
 And where is the hardship ? If he can make his innocence ap¬ 
 pear, he must be acquitted. The point upon which he will be 
 tried is not now before the court ; nor is there a wish but that the 
 most pure unmingled justice should prevail, be tried where and 
 
20 
 
 when he will. It is enough for the present, that there exists a 
 record containing a charge upon which he may be arraigned and 
 tried, and upon which this court has not jurisdiction to try, nor yet 
 to bail : tor as 1 have shown, this court in so doing would do 
 what a court of Oyer and Terminer in England would not have the 
 power to do. When this record is accompanied with another, 
 now upon the tiles of this same court, containing a charge of mur¬ 
 der in the most solemn form, can this application succeed l Sup¬ 
 pose this inquisition could not be proceeded upon, does it not at 
 least go to fortify the presumption of the guilt of manslaughter ? 
 The one instrument charges manslaughter, the other accuses him 
 of murder. Tw enty-four men on each jury would amount to forty- 
 eight, who all concur that he was at least guilty of manslaughter. 
 With these accumulated proofs, and nothing to oppose, can the court 
 be called upon, without hearing an affidavit, or being apprised of 
 any circumstance to modify or qualify the case, to deviate from the 
 regular course, and disregard that controlling principle that governs 
 in all cases of bail, and to unlock the prison doors before the day 
 when the traverse jury shall be sworn to pass upon their oaths, 
 and a fair trial be had between the people and the prisoner ? I 
 cannot for a moment believe, I say it w ith great deference, that 
 this court will adopt a proceeding, which must not only shock the 
 human understanding, but overturn principles of law and public se¬ 
 curity, hallowed and sanctified through the lapse of eight hundred 
 years. 
 
 The Mayor. I have been of opinion from the first, that the coro¬ 
 ner’s inquest was improperly put upon the files of this court ; but 
 the same officer who prosecutes here, has power in every part of 
 the state. There are statutable provisions that the party shall be 
 bailed where there has been delay, unless that delay shall be for 
 certain specified cause. Now it may be necessary for us to exa¬ 
 mine whether there has been delay ; and if so, whether it has been 
 accounted for. The public prosecutor may say, 1 have not put 
 him upon his trial here, because of the coroner’s inquest, on which 
 he is to be triad at a higher court, for a higher offence ; and this 
 inquest may be brought to our view (supposing it not a record of 
 this court) by the suggestion of the coroner himself. 
 
 Munro. If the court should determine to look into it and take 
 judicial notice of it, l should then pray that the testimony should 
 accompany it. 
 
 The Mayor wished the counsel to look into the case of the Com- < 
 mon-wealth of Pennsylvania against Oswald, where there was much 
 able discussion (if he recollected rightly) of the amendments of the 
 Constitution of the U. S. and where they were held not to apply. 
 
 N. B. The mayor afterwards recollected that the case he al¬ 
 luded to turned upon the Bill of Rights and Constitution of that state, 
 and not upon the Constitution of the U. S. or its amendments,. 
 
 Wells, for the prosecution, begged to know if it was in order that 
 he (being the third counsel) should address a few observations to 
 the court, which he said should be very brief. 
 
21 
 
 The court considering this as a criminal case of novelty and im¬ 
 portance, desired him to [Proceed. 
 
 He then stated that he had not been in the citj' when the former 
 discussions and proceedings took place, and had returned too late 
 from Albany to make any preparation for-an argument, and would 
 submit to the court, without entering into details, the view's he had 
 formed upon general principles, and the conclusions he drew from 
 the authorities which had been offered, and perhaps a few others. 
 He would ask first, under what circumstances this application was 
 made ? Was it a case of one committed upon suspicion merely ? 
 No ! that is not at all the ground ailedged. For the accusation no 
 longer rests in suspicion, hut is resolved by a regular judicial in¬ 
 quiry into a solemn impeachment, to w hich, by the law of the land, 
 the prisoner must answer. 1 mean now to view this question inde¬ 
 pendently of the coroner’s inquest, upon the ground of the in¬ 
 dictment alone. Then it stands thus : instead of its being a mere 
 case of suspicion, it is a case of one against whom an indictment 
 has been found, upon which he is to be tried for a felony of no 
 ordinary grade, which approaches sometimes so near in its charac¬ 
 ter to the atrocious crime of murder, that the shade which forms 
 the distinction is sometimes hardly perceptible. Whether the case 
 we have now in hand be a case of that kind, 1 shall not now dis¬ 
 cuss. It is enough for my argument that he stands before the court 
 charged with a felony of a very serious character, and whether, 
 upon an application lo the favour or discretion of the court, he 
 ought to be bailed. 
 
 This, which is called the favour or the discretion of a court, is 
 not an exercise of arbitrary will or pleasure. It is not enough 
 for the court to say sic volo or sic jubeo. If the term were taken 
 in that sense, it would be a word expressive of the most degrading 
 tyranny. If it was free to open the prison doors for one individual 
 under the very circumstances that closed them on others, it would be 
 either partial on the one hand, or cruel and unrighteous on the 
 other. It is only the circumstances and facts in the case, and not 
 the situation or fortune of the accused that should be the ground of 
 exemption from the ordinary rule. If the ordinary course is to 
 bail prisoners after indictment found against them for felonious ho¬ 
 micide, then all should be bailed : if it be not of course and right 
 upon that ground, it cannot be so in such a case as this or any other, 
 while sound discretion prevails and presides in the tribunals of 
 justice and of law. For where are the special circumstances! 
 where the single fact to induce the court to depart from the gene¬ 
 ral rale, and upon any principle of sound discretion to extend the 
 favours of the law towards him—that favour which only belongs 
 to cases where the matter stands indifferent, and (he circumstances 
 •raise a presumption in favour of the prisoner’s innocence ? What 
 is there here to make it stand indifferent ? What presumption that 
 the prisoner may not be guilty of manslaughter ? What of his in¬ 
 nocence ? If neither—then he is no object of that favour which is 
 appealed to on his behalf. It cannot be inferred from the oaths of 
 
22 
 
 the grand jury. Certainly, the finding of the coroner’s inquest by 
 twenty-four men upon their oattis, does not diminish the probability 
 of his guilt. What other grounds then are there upon which to 
 rest this claim to so unusual an indulgence ? In what case of a 
 similar description has the power of bailing been ever exercised ? 
 Has any such case been shown of a prisoner indicted for man¬ 
 slaughter and found guilty of murder by a coroner’s inquest, and 
 yet admitted to bail ? 
 
 Neither of the cases in Strange or Satkield, are the slightest war¬ 
 rant for such an application. They merely show that a court 
 having competent power to bail, will do so where there is strong 
 presumption of innocence ; and that, on a finding by a coroner, the 
 court will bail where it would not, were the same matter presented 
 by a grand jury; and for the reason there given, that the coroner’s jury 
 not being sworn to secresy, the court can look into the depositions 
 and see to what they amount: so that, though it be found murder, 
 they may see it not to be so and admit to bail, and though it be found 
 manslaughter, they may think it murder and refuse. But here is a 
 record which the court cannot pass over ; and, if the inquest be any 
 thing, it cannot be less than presumptive evidence of guilt, and not 
 of innocence. 
 
 I repeat it then, that what is now asked is what never yet was 
 done : that is, for the court to bail a prisoner who stands before it 
 indicted of manslaughter, without a single circumstance tending 
 either to mitigate or excuse, or any presumption whatever of in¬ 
 nocence ; nothing to mask the nakedness of the fact, or lighten the ' 
 shade of guilt. (The counsel then commented upon the cases with I 
 much acumen, and proceeded :) 
 
 The court then knows nothing, sees nothing, but an inquisition i 
 for murder and an indictment for manslaughter. But the one is 1 
 said not to be before them : and the other is certainly not bailable 
 of course. And if the inquisition be not before them, then neither 
 can the depositions that accompany it. They are indeed expressly 
 shut out by the prisoner’s counsel themselves from the view of the 
 court. 
 
 I have now argued as if the coroner’s inquest had been for man¬ 
 slaughter only. Yet, upon the finding by the coroner, and the in¬ 
 dictment together, it is settled law, that bail will not be allowed, at 
 least where there are no other circumstances to justify the mea¬ 
 sure. I shall, therefore, dismiss this point, confident that if the 
 inquest be laid out of view, and the indictment alone considered, 
 the court cannot, without violating a great principle of law, admit to 
 bail, and therefore will not do it. 
 
 2d. I will now inquire what effect this inquisition ought to hare \' 
 We are told it ought to be laid out of the case for every purpose. Thai I 
 the court should shut its eyes upon it. That it belonged to the Oyei 
 and Terminer; and if it were here, the court would take no notice 
 of it. Suppose, however, that it remained in the coroner’s hands i 
 and he stood here as a public officer, and presented it to the court 
 would they not be bound to notice him and it ? It is enough that then 
 
23 
 
 is such a finding ; what it may be, or what its effects, it is not now 
 the time for me to discuss or the court to decide. It appears suffi¬ 
 ciently and judicially, whether the court find it upon their own files, 
 or receive it from the officer in open court on behalf of the public. 
 The gentlemen admit the right to bail to be commensurate with the 
 jurisdiction to try. This court then cannot try ; and, consequently, 
 cannot bail for the offence there charged ; and to what purpose bail 
 for the minor offence, when the prisoner must remain in custody 
 upon the major ? Would it not be an idle act indeed, to inquire into 
 the merits, since this court cannot bail whether those merits be 
 disclosed or not? The lesser is merged in the greater accusation, 
 which cannot be tried here. That tribunal only can bail which ha» 
 jurisdiction co-extensive with the charge : and what is that tribunal l 
 The Supreme Court, or one of its judges, can alone bail upon both 
 offences charged, and of course upon either. Because, when they 
 exercise their power on the greater, they at the same time neces¬ 
 sity dispose of the lesser. Here it would be reversing the order. 
 But it is not only because the Supreme Court has jurisdiction to 
 ry for murder that it has the power to bail, but because it is the 
 ;reqt judiciary, the high and paramount tribunal to which the largest 
 lowers are given ; which corrects the errors of inferior courts, 
 ind to whose wisdom and scrupulous justice that great and discre¬ 
 ionary power is only confided. 
 
 The authority in 1 Salk. 60. establishes this as the true principle ; 
 lecause by that it appears that the justices of Oyer and Terminer, 
 hough they have the well known power to try, have not power to 
 i ail for murder. If this be law then, it cuts up by the root the 
 nain hypothesis of the counsel, that the right to bail is co-extensive 
 vith the right to try ; and that tribunal which can dispose of the 
 vhole subject is certainly the most proper to be applied to, because 
 t only can give effectual remedy ; whereas it is otherwise a spiff¬ 
 ing up of a motion applying to one tribunal for partial relief, and 
 or another portion to another. 
 
 It is then enough that this court knows that there is such a re- 
 ord ; it cannot both know of it, and act upon the ground of having no 
 nowledge of it ; it cannot look beyond it, and examine into 
 he evidence upon which it is founded. Indeed, it would be in vain ; 
 ince even if it should think the offence bailable, the prisoner must 
 emain in custody upon that charge on record, which rebuts all pre- 
 umption of inuocence. The most that can be inferred from any 
 f the cases cited, is to this amount : that where there is an inqui- 
 tion finding the crime to be murder, the King’s Bench, or itsjudg- 
 s, may look into the evidence and bail, if they find the offence 
 ailable ; but that no other court or judge can do so ; not even the 
 >yer and Terminer, though it has power to try the offence. As 
 lis court has neither power to try nor bail, it would be nugatory 
 > examine the inquisition or the evidence, as it would not advance 
 lem one step in deciding whether the prisoner was to be bailed 
 r not. 
 
 I have shown, that upon the indictment for manslaughter singly, 
 
independent of the inquest, there is no ground for favour, or what 
 is called discretion, to deviate from the regular course of proceed¬ 
 ing, and still less is there when the charge is coupled with another 
 beyond the reach of this court, and which must be disposed of by a 
 jurisdiction alone competetent to try or examine the merits of that 
 charge, and the amount of the presumption of guilt or innocence. 
 
 It is said, this court will not notice this inquisition, because il 
 has no jurisdiction to try the prisoner upon it. is that a reasor 
 why this court should assume jurisdiction to decide, that notwith¬ 
 standing that instrument, the prisoner is bailable—why it sbonlc 
 determine without having jurisdiction to try, to execute a powei 
 which the court that has jurisdiction to try, would not perhaps 
 venture to assume ? Will not this court rather leave that delicate 
 question to that which has full jurisdiction to try and pronounct 
 in the first instance, leaving it still open to the party to appeal, am ; 
 be redressed if he is wronged, where all errors can be rectified 
 Is it not better than in the very incipient stage to stop the cause am 
 decide that the record is not sufficient, and that no court has powe 
 to convict upon it ? Yet so the court must decide if it looks into th 
 merits of the inquisition, and having done so, admits the prisoner t 
 bail. Of such importance to the true course of public justice, i 
 the right decision of this preliminary question. 
 
 It is enough that authorities show, and that it is admitted, thatth 
 prisoner may be tried upon that inquest in a higher court. Sup 
 pose it now called on for trial at the Oyer and Terminer, and thes 
 exceptions are not there taken; will not the trial proceed ? Be j 
 the}' will be taken ! Be it so ; and which is the most fitting, thr ; 
 they be then decided by that court that can try the cause, or her i 
 now in anticipation by this court, which has no jurisdiction ofit. Wi 
 this court run so far ahead to decide upon principles of law < 1 
 such importance, where the consequences cannot be foreseen ? 
 
 The objection founded on the amendments of the constitutior 
 bears its own death-warrant. Neither clerk nor layman can mistak 
 their interpretation, notwithstanding the doubts that ingenuity h; 
 attempted to hang upon their construction, lie that runs may reat ; 
 It manifestly refers to offences under the laws of the United State: 
 One word for all will prove it. It refers to land and naval force 
 Can that refer to any thing hut the United States ? What nar 
 force has any state ? Let that suffice, without wasting any moi 
 time to show what was the subject referred to, and meant to I 
 regulated by that amendment. 
 
 The history of the passage of those amendments forbids ar 
 other interpretation. The principles and opinions of every indii 
 dual concerned in the passage of those amendments, is know 
 They grew entirely out of the jealousies of the states which fear* 
 that congress, or the general government, would not merely exe 
 cise the power delegated to them, but exceed it and encroach upt 
 the rights and sovereignty which the states had not thought prop' 
 to commit to them, and perhaps enact laws not confined to gener 
 and national purposes, as was intended, but interfering with the 
 
 t 
 
25 
 
 respective municipal laws and constitutions, thereby altering the 
 state laws in tilings which they would not have altered, aud gradu- 
 ally abridging or overturning their sovereignty. The whole scope* 
 quality and bearing of the amendments, therefore, was to lay more 
 definite conditions and restraints upon the exercise of that limited 
 power. None of those amendments, on the other hand, were evef 
 supposed to have been for the purpose of abridging any part of the 
 sovereignty of the states. They were merely to prevent congress 
 from any act that might derogate from the state sovereignty» It 
 was speaking to congress in these words : If you proceed to esta¬ 
 blish a system of penal laws for the United States, we consent, pro¬ 
 vided you confine your operations strictly within the authority we 
 have delegated to you, that you never exceed it, nor lose sight of 
 the purposes for which it was entrusted to you ; and never attempt 
 to alter the state laws or constitutions, or abridge the state sovereign¬ 
 ties in any manner^ 
 
 If, therefore, at the time those amendments wete made, the courts 
 could proceed to try a prisoner upon a coroner’s inquest, or by 
 information, so can they now ; because no new power was given 
 by those amendments. Their language is negative : their object 
 was to prevent that very thing which they are now said to have 
 effected ; and this is so universally true, that it is impossible to use 
 any one of the amendments to any such purpose. 
 
 1 have now stated those general principles upon which I think I 
 can certainly rely ; if the court will apply them, this motion must 
 be refused. 
 
 Munro , in reply. Probably justice to myself may excuse me 
 in stating, that 1 was only yesterday retained ; I have, of course* 
 had little time for preparation. If I should reason desultorily, of 
 quote less accurately than 1 could wish, the court, 1 hope, will grant 
 me its indulgence whilst I briefly reply to the arguments of the coun¬ 
 sel for the prosecution. 
 
 It was observed by one gentlemah, that the natural course Wag 
 not to bail for felony or treason. Why is it the natural course ? Is 
 it because nature indicates that course ? If I were to consult my 
 Bature, it would tell me that the best course was to use fit and ra¬ 
 tional means to biing the accused to a fair trial ; and that those 
 means were most proper which would prevent him suffering more 
 by previous confinement than probably would be the amount of his 
 punishment even should he be convicted ; where it might happen 
 that after a punishment by imprisonment for months, the jury 
 might acquit the person so punished, of all crime or guilt. Nature, 
 and reason, and justice, are, I think, all equally opposed to such a 
 course. Despotism may prescribe such a course, but it was not 
 the course of the common law. It was not that, established by the 
 hardy sons of Germany, who delivered down to their posterity the 
 principles of the common law, which our ancestors brought with 
 them as their birthright, and which, through them, we now enjoy 
 as ours. But this is a question of dry law, and not of expediency 
 »or of speculation. The court will banish all sympathies and feel 
 
26 
 
 jpgs in such a case, and not permit counsel to harrow up the public 
 mind. 
 
 That all men were presumed innocent till they were found guilty, 
 I had supposed to be the mild maxim of our law. And therefore 
 it was, that, applying to the favour of the court, 1 hoped it would 
 rather have said to the public prosecutor, what have you against 
 the prisoner that rebuts this presumption of the law, than call upon 
 the prisoner to rebut the presumption of his guilt. And when I 
 said that the court should call for the inquest and read the evidence, 
 1 hoped that the court would have perused it silently, and pointed 
 out to the counsel in what it did or did not appear important or 
 sufficient, and that we should not have been called upon affirmatively 
 in the first instance to show our innocence. 
 
 I have not lately had occasion to examine the statutes of Edw. I. 
 But if 1 remember rightly, they only went to regulate the duties of 
 coroners, sheriffs, and justices, but prescribe no rule to the tribu¬ 
 nals that try the accused. The judges of the Supreme Courts, the 
 King’s Bench, Common Bench, and Exchequer, do not follow, and 
 are not bound by them ; because, having jurisdiction to try, they 
 have power to bail, and form their own rules. 
 
 It has been said with some triumph, that by a case which I cited, 
 (Armstrong vs. Lysle, 1 Salk. GO.) it appears that the court of Oyer 
 and Terminer have not power to bail. The counsel did not distin¬ 
 guish nor perceive that that was a case after conviction. 
 
 (The counsel read the case, concluding that the party had his clergy, 
 and teas burned, and then bailed.) 
 
 Griffin asked whether the counsel read from the text of the book. 
 
 Munro. There is not, I venture to say, such an expression in the 
 whole of the case, as that the court cannot bail because it cannot 
 try. He again read, “ In such a case as this.” As what ? Why 
 when a verdict had been pronounced finding the prisoner guilty of 
 manslaughter! And it will appear (he added) that the bail re¬ 
 quired in that case was not to the indictment, but to an appeal. It 
 was indeed urged by the appellant, that he ought not to be bailed, 
 because he was found guilty of manslaughter. But the court then 
 said, that though the Oyer and Terminer could not bail in such case, 
 that court (the King’s Bench) could, and he was bailed on the 
 crown side, and the appeal lost. 
 
 Still les9 is the King against Hunt (Salk. 103) an authority for re¬ 
 fusing bail here, for there it was the case of a man indicted of mur¬ 
 der, and also of stabbing. He was expressly found guilty of man¬ 
 slaughter, and a special verdict as to the rest. He could not be 
 bailed till his clergy was allowed. What then ? because a man con¬ 
 victed could not be bailed before he had been put to read and have 
 his clergy ; is that an argument that one committed merely for safe 
 keeping till his trial, may not be bailed ? 
 
 The case of the King vs. Dalton, (2 Stra. 911) was relied on ai 
 an authority, that it was incumbent upon the prisoner to show some¬ 
 thing in mitigation before he could ask to be bailed. Now it merely 
 shows that the court or judge will bail where a coroner’s inquest 
 
27 
 
 finds murder, if, upon looking into the depositions, it appears n» 
 more than manslaughter. Here the judge, at his own chambers, 
 for the guidance of his own conscience, looks into the depositions 
 taken by the coroner, and without regard to the signing or sealing 
 of the twenty-four men, exercises his own judgment, as all the 
 books agree that he may do. 
 
 I have expressly admitted that the statute cited by my associate 
 counsel, did not apply to this court. But I did not say that this 
 court could not take notice of the inquest. 1 meant that either 
 they ought not to look into it, since it was not before them, or 
 else if they did notice it at all, they ought to examine critically 
 whether it was such a legal instrument as they were forced to give 
 credence to, and to be bound by. And, suppose it entirely de¬ 
 fective or void : that it was a finding by eleven men, or by twenty- 
 four with the coroner, but without their seals, would this court no¬ 
 tice it ? For certain purposes they would decide upon it, but not for 
 others. They would not try nor give judgment upon it. But 
 where it was pressed upon them as a matter to influence their dis¬ 
 cretion and operate against liberty, they will then see whether it 
 be what it purports to be, or something else to which they cannot 
 give credence or weight. 1 said this court would never finally dis¬ 
 pose of it: 1 say so still. It will not quash it, it will not direct an 
 acquittal upon it, nor finally discharge from it. And in this way 
 only I meant to say that the court would examine it. 
 
 I admit it to be the daily practice in England, to try upon the 
 coroner’s inquest; and that the defendant must be tried upon it, un¬ 
 less it be illegal or defective. I admit the adoption of the whole 
 common law of England, with the exceptions of our own statutes 
 and constitution, when they differ in any part. And 1 admit that 
 our own bill of rights is the law of this state, unaltered by the con¬ 
 stitution of the United States or its amendments, the same as it 
 existed long before that constitution was made. And I admit that 
 the words, “ other due course of law,” qualify the clause that would 
 seem to exclude trials upon coroners’ inquisitions. 
 
 The case in 1 Dallas, Respublica vs. Oswald, mentioned by his 
 honour the mayor, was not a decision in the last resort, nor was it 
 upon this question. It was not a question upon the constitution of 
 the United States ; but whether the bill of rights of that common¬ 
 wealth did not preclude the trial of a prisoner on the finding of a 
 coroner ; if so, there is no American decision upon the point. 
 
 I shall now retrace the outlines of my argument. By the United 
 States’ constitution, the party can be tried only upon the indict¬ 
 ment of a grand jury, and not by any other mode, as by informa¬ 
 tion or inquisition of office. And this law is universal and para¬ 
 mount. When that constitution says, “ there shall be no ea; post 
 facto laws ; or, that persons shall not be twice tried or put in 
 jeopardy for the same offence,” may not that benefit be claimed 
 by virtue of that constitution, at the hands of every tribunal with¬ 
 in the range of the United States ? This is the universal law ; and 
 
28 
 
 courts will not be forward to beat down the protecting shield o t all 
 the citizens of every state, by dqubtful exceptions. 
 
 It was said, that the ordinary rule is, not to bail for felony ; and, 
 that it would be nugatory, since we did not ask to be discharged 
 from, the inquisition , but simply to be bailed on the indictment 
 which is before this court. Thus, putting the case upon its 
 true footing, renders an answer unnecessary to many of the points 
 urged on behalf of the prosecution. Nor will I inquire whether 
 the lesser offence be merged in the greater. The counsel was, in 
 that point, deceived by his authority ; his conclusions were, as they 
 always are, just; but, fortunately for the prisoner, his premises 
 were false. 
 
 The court took time to consider. 
 
 
 OPINION OF THE COURT. 
 
 19th February, 1820. 
 PRESENT AS BEFORE. 
 
 His Honour the Mayor this day delivered the opinion of the 
 Court. 
 
 The people of the State of New-York 
 
 vs. 
 
 Robert M, Goodwin. 
 
 On the 7th of January last, the grand jury of this court presented 
 an indictment of Manslaughter, against Robert M. Goodwin, the 
 prisoner at the bar, accusing him with having feloniously killed 
 James% Stoughton. The next day the prisoner was arraigned on 
 that indictment, pleaded not guilty, and on being asked if he was 
 ready for his trial, he answered he was not. An application was 
 then made to bail the prisoner. The court intimated their opinion, 
 that it was not of course to bail on such a charge, and the matter 
 was no further moved at that term. 
 
 At an early day in this term, the counsel for the prisoner moved 
 that his trial should be brought on in the course of the term, or that 
 he should be discharged ; and if not discharged, that he should at 
 least be bailed. \ 
 
 On that occasion, the public prosecutor stated, that an inquest 
 had been found against the prisoner for the murder of James 
 Stoughton ; the person who by the indictment for manslaugh¬ 
 ter he is accused of having feloniously killed. That the in¬ 
 quest had been by the coroner put on the files of this court, and 
 that it was intended to try him on that inquest at a Court of Oyer 
 and Terminer, which would be held in this city' for the purpose, 
 a9 soon as the duties of the judges- of the Supreme Court as mem¬ 
 bers of the Court of Errors, and of the Council of Revision, now in 
 session at Albany, would permit one of them to preside at an Oyer 
 and Terminer here. That on this account he avowed that it was 
 not his intention to try the prisoner in this Court, nor would he con¬ 
 sent to his being bailed or discharged. The court declined grant- 
 
29 
 
 ins; the application at that time, but consented, at the request of the 
 counsel, to hear the application anew. And now on the last day of 
 the next term after his indictment, the prisoner applies to be bailed 
 on the charge of manslaughter. 
 
 A court constituted as this is, ought, in my opinion, cautiously 
 to refrain from deciding any point of law in which their decision is_ 
 not absolutely necessary to dispose of the case immediately before 
 them. We may, 1 think, give our judgment on the present appli¬ 
 cation, without giving any opinion as to many of the important points 
 raised on the learned and able arguments that have been submitted 
 to the court. 
 
 1 shall, in the first instance, consider this subject as if it were to 
 be decided on the supposition that the prisoner stood before this 
 court indicted for manslaughter only ; and shall therefore for the 
 present put out of view every other circumstance. The question 
 then is, whether the court ought in this indictment for manslaugh¬ 
 ter, as a matter of course, merely on the prisoner’s application, to 
 admit him to bail. 
 
 The power of the court to bail for this offence under any circum¬ 
 stances, has been questioned by the counsel for the prosecution. 
 But it seems to me that the power to bail must be incident to the 
 power to hear and determine. We have certainly power to dis¬ 
 charge altogether. It is expressly given to us by statute, under 
 certain circumstances, and without statute, it necessarily belongs, 
 as it appears to me, to a court having the pow'er to try as in all ca¬ 
 ses to which such power extends. If we have the power to grant 
 a gratuitous discharge, it must follow, I think, that we have power 
 to discharge sub modo. If we may discharge without bail, a fortiori 
 we may discharge upon bail. The case from Salkeld, which upon 
 its being first read, I did consider in opposition to this position, I 
 think has been satisfactorily met by the observations of the defend¬ 
 ant’s counsel, and has been shown to be reconcilable with what I 
 understand to be the law. (Lord Moliun's case, Salk. 104.) 
 
 But I should wish to give this point a more deliberate examina¬ 
 tion before I venture to give a decisive opinion upon it. I do not 
 mean to give such an opinion at this time, because I believe it is 
 not necessary that I should ; for the present question does not in 
 my mind turn upon the power of the court. It is enough to con¬ 
 sider whether, supposing the court has a discretionary power to 
 bail, they ought now to exercise that power. 
 
 It seems to be admitted that where a person is charged with any 
 felon, above the degree of petit larceny, (as to which there is a 
 statutory provision) he, cannot demand bail as of course, and that 
 the co rt or magistrates, having the power, are to bail him or not at 
 their discretion. 
 
 Legs 1 discretion never means, either in criminal or civil law, 
 arbitrary will. 
 
 Legal discretion is always to be governed or directed by known 
 and established rules, and in truth cannot be otherwise applied than 
 to decide whether facts bring the case within the operation of such 
 rules. 
 
30 
 
 1 he well established rule of law applicable in this case is, that a 
 person fully and explicitly charged with a felony cannot be bailed, 
 unless there be sonrething presented in opposition to the charge, 
 which may raise a presumption in favour of his innocence ; or at 
 least it must appear indifferent to the court or magistrate called on 
 to bail him, whether he be guilty or not. 
 
 It is unnecessary to recapitulate the authorities which have been 
 cited to this effect. It has been the law of England and of this 
 country since the time of the statutes of Edward the first. No 
 case has been cited to the contrary. And I never knew of any 
 practice of this court, or any other, that violated a rule, the strict 
 observance of which appears to me to be absolutely necessary to a 
 due and impartial administration of law ; of that administration 
 which shall put the poor and the rich on an equal footing in a court 
 ®f justice. 
 
 This rule is not disputed by the counsel for the prisoner : they 
 
 contend, however, that the maxim of law that every man is to be 
 
 . . . 
 
 presumed innocent till he be found guilty, applies to this case at 
 this time. But it is obvious that this argument would lead us too 
 far—for if it would now apply it would at all times reach every 
 case. And if it is always to be adopted, then it would follow that 
 in every case the accused must be let to bail. The truth is, that 
 this just and benign principle is not applicable, except when the 
 accused is on his trial : for the purposes of securing his person to 
 answer to a direct and positive charge, made in due form, and to 
 bring him to that trial, we are bound to treat him as if he were 
 guilty : at least we must do so until some matter be presented in his 
 favour, which in the exercise of our discretion we shall judge a 
 presumption of his innocence. 
 
 In this case nothing of that nature is offered. The prisoner is 
 not only committed on a charge of felony fully and explicitly ex¬ 
 pressed in the warrant of commitment, but he stands charged with 
 a felony of manslaughter, by the indictment on the files of this 
 court. 
 
 It appears to me in vain to say that the public prosecutor is to 
 produce further evidence of the guilt of the accused, than the com¬ 
 mitment or indictment, since the law says that he must raise a pre¬ 
 sumption in favour of his own innocence. It can only mean that he 
 must destroy the presumptions which must necessarily arise against 
 him from these accusatory documents. 
 
 In some instances indeed the magistrate or court may look into 
 the testimony on which the accusation is founded; and if it affords 
 the presumption in favour of the prisoner’s innocence, he may be 
 bailed. 
 
 A second ground however of this application is, that the trial of 
 the prisoner on the indictment for manslaughter has been so long 
 delayed that he is entitled to be bailed, if not discharged. 
 
 I have no doubt if there be any unreasonable delay in the pro¬ 
 secution of an indictment which this court may try, it ought to in- 
 
31 
 
 terpose its authority and relieve the accused from the oppressioa 
 of an unnecessary and unwarranted imprisonment. 
 
 We are then to inquire whether there has been such delay in this 
 case. 
 
 As I have already stated, the prisoner was indicted and arraigned 
 the last term, that he then said he was not ready for trial, and at 
 this second term his counsel have moved for his trial, which the 
 public prosecutor has avowed he did not mean to bring on. 
 
 A statute of this state provides, that if any person indicted shall 
 not be brought to trial at the second term of the sessions after the 
 commitment, he shall be discharged as far as relates to any treason 
 or felony for which he was committed, unless a satisfactory cause 
 be shown by the public prosecutor for not bringing him to trial. 
 
 The application to the court is not to discharge the prisoner, but 
 to bail him. If the court thought him entitled to his discharge, 
 they could not refuse to admit him to bail. 
 
 Under the provision of this statute, the prisoner would be en¬ 
 titled to his discharge unless the public prosecutor has shown satis¬ 
 factory cause for not bringing him to trial. 
 
 The only cause he has shown is, that by a coroner’s inquest the 
 prisoner is charged with murder : and the public prosecutor avows 
 his intention to arraign the prisoner on that inquest in the Oyer and 
 Terminer, where by law it is returnable; and which court has 
 solely jurisdiction of the crime which it charges. 
 
 We have then to decide whether this court ought to consider 
 the existence of the inquest as satisfactory cause for not now putting 
 the prisoner on his trial. 
 
 This inquisition I have no doubt is improperly on the files of 
 this court. It ought to be in the hands of the coroner until return¬ 
 ed pursuant to the statute, to the court of Oyer and Terminer. Yet 
 I think this court is bound to take notice of it. We may consider 
 it as presented to us by the public prosecutor in the hands of the 
 coroner; or it appears to me we are bound to receive the repre¬ 
 sentation of the public prosecutor of the existence of the inquisi¬ 
 tion, and of his intention to proceed upon it. Circumstances may 
 exist when we should be obliged to accept this evidence of a no less 
 solemn and important fact, as to which I do not know how otherwise 
 we could obtain information. Suppose that the prisoner instead of 
 being now charged by a coroner’s inquest with murder, had at 
 the last Oyer and Terminer been indicted for that crime ; and that 
 the last grand jury of this court had notwithstanding presented the 
 indictment for manslaughter now on our files : how could we have 
 obtained knowledge of the proceeding in the Oyer and Terminer, 
 Out by the information of the public prosecutor ? At any rate I think 
 'his inquisition is so before us as that we are bound to take it into 
 )ur consideration. 
 
 Supposing for a moment, that this inquisition is equivalent to an 
 ndictment, and that the prisoner may be arraigned and convicted 
 ipon it in the Oyer and Terminer ; then can this court, consistent 
 vith its duty, take any step, or pursue any course which might in- 
 
32 
 
 terfcre with that jurisdiction which the laws of our country have 
 committed to a higher tribunal ? We have no cognizance of the 
 crime ol' murder. Shall we then adopt measures which will arro¬ 
 gate to ourselves the disposition of an accusation on which it be¬ 
 longs to our superiors to decide ? If we were to try the prisoner 
 on the indictment for manslaughter, unquestionably we should put 
 an end to the prosecution for murder—and is there not a great in¬ 
 consistency in saying that this inferior tribunal can or ought to pur¬ 
 sue such a course as to take to itself the decision of a matter which 
 does not beloug to it, but which, by the constitution and laws of 
 our country, is delegated to a superior court ? If the inquisition be 
 equivalent to an indictment, then, in virtue of the inquisition, the 
 case of the prisoner is as much attached to the Oyer and Terminer 
 as if there was an indictment of that court to the same effect. Sup¬ 
 pose, then, that after an indictment in the Oyer and Terminer, a 
 grand jury in this court were to find a bill on the same facts for 
 murder ; it seems to me, that every one will admit that it would be 
 absurd to say, that because the session grand jury had chosen to hod 
 a bill for manslaughter, that we could and ought to proceed on that 
 bill, and thereby oust the Oyer and Terminer of the trial and de¬ 
 cision of the cause,- If this doctrine were to prevail, it would utter¬ 
 ly confound all jurisdictions. I cannot see why the indictment for 
 manslaughter should be allowed to interfere with the inquest for 
 murder, more than if a grand jury, after having found an indictment 
 for lilrceny in this court, should afterwards land an indictment for 
 trespass or, the same facts, the latter should he allowed to interfere 
 with the former. 
 
 It is admitted, that in England, the inquest is equivalent to an in¬ 
 dictment ; hut it is said, that we ought not to consider it so. he- I 
 cause by the constitution of the United States/no man can be held 
 to answer upon it. This is a question 1 do not mean to take upon | 
 me to decide. The law of our state, w hich has been revised seve- | 
 ral times since the adoption of the constitution, not obly points it 
 out as a mode of prosecution, but provides that the justices of Oyer 
 and Terminer shall proceed thereon : and it is admitted that in seve¬ 
 ral, at least in more than one instance in this state, persons have 
 been put to answer on coroners’ inquests. Would it not then he 
 a most Unwarrantable presumption in this court to act on their own 
 opinion, when that opinion was in opposition to repeated legislative 
 acts, and to the decisions of tribunals to w hich we are unquestiona¬ 
 bly subordinate ? We have been asked if the document now pre¬ 
 sented to us, and which purports to be an inquest of the coroner, 
 were manifestly defective ; as for instance, if it should appear to 
 have been the finding of only eleven jurors, if it should want seals 
 or the name of the coroner, yet would we then suffer it to controul 
 us iu the administration of justice? I answer, certainly not. l'oi 
 then it would be no inquest. It would be only requiring us to open 
 our eyes to see that it was not; and in determining to disregard it, 
 we should not be exercising the highest judicial function, and in op 
 position to the legislature, and superior courts, deciding a grea 1 
 
33 
 
 sonstitutional question which, in my mind, belongs to another tribu- 
 nal. 
 
 I am therefore of opinion, that when the public prosecutor show- 
 ed us the coroner’s inquest, accusing the prisoner of the murder 
 of the same person whom he is charged by the indictment on our 
 files with feloniously lulling, he has shown sufficient cause for not 
 bringing the prisoner to trial, and that we ought not, whatever our 
 power may be, as to the manslaughter, at this time, either to bail 
 or discharge him. 
 
 I beg it to be observed that my opinion is, that we ought now , at 
 this time , to receive the inquest as a satisfactory cause, shown by 
 the public prosecutor, for the delay which has taken place. I by 
 no means intended to say that it should always be so considered. I 
 think this court, nor no other court, should leave the prisoner at 
 the mercy of the public prosecutor. We never will suffer the du¬ 
 ration of his imprisonment to depend on the pleasure of the attor¬ 
 ney for the people. Our laws have taken good care to guard against 
 oppression by their administrators, and it is our duty to see that 
 their provisions in favour of humanity, and the liberty of the citi¬ 
 zens, are duly enforced. If, therefore, it should appear to us that 
 there is any wanton, or even unnecessary delay on the part of the 
 public officer ; if, after there has been an Oyer and Terminer in 
 this county, no measures should be taken on the inquisition, or if 
 the prisoner could justly complain of delay in the appointment of 
 such a court, then I think an application like the present would call 
 upon us to decide as to the extent of our powers, and w hether we 
 would not exert them for the relief of the prisoner. The opinion 
 now delivered, goes no farther than to decide that if we may, at our 
 discretion, bail the prisoner on an indictment for manslaughter, we 
 do not think it would be a proper exercise of that discretion, to bail 
 him under existing circumstances. The application is therefore 
 refused. 
 
 The mayor then stated that the opinion just delivered, must be 
 no farther considered as the opinion of the court, than as it ex¬ 
 pressed a determination not to admit the prisoner to bail at pre¬ 
 sent. 
 
 * 
 
TRIAL, &e. 
 
 
 a Court of General Sessions of the Peace , hohlen in and for the 
 City and County of New-York, at the City Hall of the said City, 
 on Tuesday the 14 th day of March, in the year of our Lord 1820 : 
 
 PRESENT, 
 
 The Honourable Cadwallader D. Colden,^ 
 
 Mayor of the City of New-York ; f Justices of the 
 George B. Thorp, Esquire, ^ Aldermen oft Sessions. 
 Stephen Allen, Esquire, $ the said city; ) 
 
 John W. Wyman, Esq. Clerk. 
 
 The People of the 
 State of New-York 
 
 vs. 
 
 Robert AI. Goodwin. 
 
 On Trial, on an Indictment for Manslaugh¬ 
 ter, in killing James Stoughton, Esquire, 
 found on the 8th January last. 
 
 Counsel for the people. 
 
 Messrs. Van Wyck, Blake, Griffin, and Wells. 
 
 Counsel for the prisoner. 
 
 Messrs. Hoffman, Emmet, D. B. Ogden, S. Price, Munro, and 
 f. A. Hamilton. 
 
 At a quarter before twelve, the court was opened, with the 
 isual proclamation, and the district attorney had leave to proceed 
 vith the trial of this cause. 
 
 Clerk. Sheriff of the city and county of New-York, put Robert 
 I. Goodwin to the bar. 
 
 James L. Bell , esquire, the sheriff, then put the prisoner to the 
 a‘r; his brother, capt. Ridgely, and Samuel Corp, esq. a friend 
 f his, sitting below and in front of him. 
 
 Crier. Hear ye, hear ye, hear ye! You good men who are 
 ’turned as petit jurors at this Court of General Sessions of the 
 eace, now held in and for the city and county of New-York, 
 lswer to your names, every one at the first call, and save your 
 aes. 
 
 The Clerk then called over the panel of jurors, and all appeared 
 feept one, on whom the court imposed a fine of $25. 
 
 Clerk. Robert M. Goodwin, prisoner at the bar, those good 
 en, whose names you have just heard called, and who now appear. 
 
36 
 
 are those who are to pass between you and your country on your 
 trial. If therefore you will challenge them, or any of them, your 
 time to challenge them will be as they come to the book to be 
 sworn, and before they are sworn, and then you will be heard. 
 
 The Clerk then proceeded to ballot for the jury, and the name of 
 Charles Swan was drawn from the box before it was discovered, 
 and observed by Mr. Wyman, that proclamation for the trial had 
 not been made. And the question arose whether the ballot of 
 Mr. Swan could be returned to the box again. 
 
 Emmet. 1 humbly conceive, if the court please, that when a 
 juror’s name is drawn from the box, the ballot cannot be returned. 
 
 'Jhe Mayor. I believe you are correct. 
 
 Van Wyck. We consent that Mr. Swan be sworn one of the 
 jurors. 
 
 The Mayor. Proceed, Mr. Clerk. 
 
 Clerk. Crier, make proclamation. 
 
 Crier. Hear ye, hear ye, hear ye ! You good men who are 
 returned to inquire between the People of the State of New-York, 
 and Robert M. Goodwin, the prisoner at the bar, answer to your 
 names, every one at the first call, and save your fines. 
 
 Van Wyck suggested, as this had been a case already so much 
 agitated, and likely to be so throughout, whether it would not be 
 well to agree that the jurors should be asked, each as he came 
 severally to the book, whether he had formed any opinion upon 
 the merits of the case. 
 
 S. Trice said it was no less the wish of the counsel for the prisoner. 
 
 The .Mayor. There is a preliminary question of practice, upon 
 which I should like to hear the counsel, unless they can agree upon , 
 it. The English law and ours differ upon this subject. This is, 1 
 think, a principal challenge for cause, and the juror is called anr 
 asked whether he has formed an opinion. If it be indeed a prin 
 cipal challenge for cause, it is to be tried and decided by the court 
 It may be asked, whether a juror ought to be allowed to get rid o 
 bis duty in such a grave and delicate case by merely answering ir 
 the affirmative. I find this practice unsettled. In the case of Col 
 Burr, the jury were asked this question, but not upon oath. In th< 
 case of Fry, it was not upon oath. In the case of Selfridge, it wa: 
 upon oath. It is a sort of trial then upon testimony. If, however 
 it be a challenge for favour, how is it to be examined upon oath 
 The practice now to settle is, whether, considering it a challong' 
 for favour, the juror is or is not to be put to answer upon his oath 
 
 Emmet. It would be our wish that every juror should be exa 
 mined upon oath. If we have any objection, it is this : that w 
 might choose to try the question by testimony ; the import of tha 
 testimony would be, as to the competency of the juror, the sam 
 as his own oath : and it is proper that it should be put under oatl 
 to prevent his evading, and giving, perhaps, such an answer as 1) 
 would not give under that solemnity. Might we not make it a gf 
 neral rule, that each juror might be asked upon his oath, unles 
 
37 
 
 where the counsel on either side should say, that they wished to 
 examine witnesses. 
 
 The Mayor. This is, I think, a challenge propter affectum. If so, 
 let us first see whether it is proper to put any question to the juror 
 upon oath. 
 
 Emmet. It appears to rae, that in those cases where the oath has 
 been dispensed with, it has rather been a matter of accommodation 
 than of strict practice ; and, I think, so important a fact as the pre¬ 
 possession of a juror’s mind, ought not to be decided but upon 
 the oath of somebody. 
 
 The .Mayor. Let the juror then, be examined upon his oath. 
 
 It now became a question what the form of that oath should be, 
 and the mayor proposed this form : 
 
 “ You do swear that you w ill make true answer to such ques¬ 
 tions as shall be put to you, touching your competency as an im¬ 
 partial juror, between the People of the state of New-York and 
 Kobert M. Goodwin, the prisoner at the bar”—so help you God. 
 
 Van Wyck. 1 only require the general question, and have nothing 
 to do with consent. But the court has decided it, and it is my duty 
 to submit. 
 
 The Mayor then, at the desire of the prisoner’s counsel, asked 
 the juror if he had formed an opinion, &c. 
 
 Juror. I have formed an opinion, but from rumour merely. 
 
 Griffin. How fir can that circumstance create incompetency in 
 the juror ? 
 
 The Mayor. This is the very objection taken in the case of Fry ; 
 a new trial was there granted, because one of the jurors had said 
 that the prisoner ought to be hanged. And, it seems to me, it is all 
 one from w'hat cause he has made up his mind. The true question 
 is, is he an impartial juror? and 1 do not think he is. And after 
 consulting with the aldermen, his honour the mayor stated it to be 
 the opinion of the court that he was incompetent. And he was set 
 aside. 
 
 Then James Glass was put to the book, and asked by the mayor, 
 “ Have you formed an opinion of the guilt or innocence of this pri¬ 
 soner ?” 
 
 Juror. I have formed none. I never saw either of the gentle¬ 
 men, nor have any knowledge whatsoever of their affair. 
 
 The Mayor. It is enough, sir ; you need not go further than the 
 simple answer to the question. 
 
 Mr. Glass was then sworn. 
 
 Garrit Van Cleef was next called. 
 
 S. Price. In this instance, we will dispense with the oath ; but 
 if the juror chooses to be on the jury, we will formally challenge 
 him, and endeavour to prove his expressions. 
 
 Van Wyck. I must consider him a competent juror, knowing 
 nothing to the contrary. The gentlemen must take the one or the 
 other mode of proceeding. 
 
 The Mayor. The matter may be tried either way ; for the juror 
 is called by neither party. 
 
38 
 
 Van Wyck. I cannot agree to that. The juror comes here to try 
 the cause, by compulsion of the process of the law ; and he 
 ought not to be put to the exposure of having witnesses called from 
 every quarter to prove his partiality, after he has sworn that 
 he was unbiassed ; he being totally unprepared to vindicate his 
 own veracity by any further proof, such pretence would be 
 enough to make any juror shrink from appearing in a court. 
 
 Price. The rule adopted in the case of Thorn, was to permit the 
 question to be asked, and then the fact to be afterwards fully tried. 
 
 Htfflman. We do not wish to be precluded from testimony, and 
 if asking the juror was to preclude us, we would not have the 
 question asked. If he should admit, however, that he had formed 
 an opinion, it would save the time of the court; but if he deny it, 
 the triers appointed may afterwards try it. 1 apprehend, the juror, 
 if the question was put, would admit that he had used very strong 
 expressions of a formed opinion. 
 
 IVelis. In the case of witnesses upon their voire dire, if you once 
 ask the witness, you cannot afterwards contradict him. Yet here, 
 after the juror has said that he has no opiniou formed, nor made 
 any declarations, the gentlemen would call perhaps witnesses to 
 confront him. 1 think they must take the answer, since they ask 
 the question, and not involve the juror as a party in such a con¬ 
 troversy. 
 
 Hoffman. We all know, that in such a case as this, it is almost 
 impossible to have an indifferent jury. In Smith and Ogden, a ju¬ 
 ror was put upon his oath, touching his expressions in a tavern ; 
 two other witnesses were called, (l\Ir. Ludlow I remember 
 was one) and their testimony was submitted to the triers. The 
 objection is but visionary : we are not to inquire into the veraci¬ 
 ty of jurors, but whether they are competent. Would the court 
 ever preclude testimony to prevent a partial juror from silting on 
 the trial of a prisoner ? A juror may have an inclination to acquit 
 from favour ; he may have a corrupt desire to convict from preju¬ 
 dice or malice. Why then introduce the technical rules respect¬ 
 ing witnesses, which cannot go to the true merits of the question ? 
 The court, if witnesses should appear to contradict the assertion of 
 the juror, may put all necessary questions lo ascertain the truth. 
 
 The Mayor. It is incumbent upon the court, in every case of doubt, 
 not to decide against the prisoner. The objection is, that the ju¬ 
 ror comes not as a party to a suit, and that his character might be 
 affected by involving him in a controversy for which he was un¬ 
 prepared ; but a juror is not supposed more indifferent to the 
 parlies, than a witness is supposed to be ; yet there is no objec¬ 
 tion to the contradiction of a witness by evidence. A juror is not 
 called by either party, nor the question put by either party, but rather 
 by the court, for the fair administration of justice. As 1 have not 
 had time to examine this question, and as 1 have doubts, I would 
 take the safer course, and decide for the prisoner. And— 
 
 On consulting with the Aldermen, the Mayor declared this to be 
 the opinion of the majority of the court. 
 
39 
 
 Price than asked the juror if he had expressed any opinion. 
 
 Wells prayed that the court might itself conduct the inquiry. 
 
 The Mayor. Have you any opinion at this moment as to the guilt 
 or innocence of the prisoner ? 
 
 Juror. 1 have not. I cannot say any thing about it till I hear his 
 witnesses. 
 
 Mayor. Have you any bias or prejudice for or against him ? 
 
 The juror answered that he had none, and was thereupon sworn. 
 The next called was John Stewart , jun. who was in like manner 
 sworn to make true answer. 
 
 The Mayor. Have you made up any opinion in this case ? 
 
 Juror. 1 have, sir. I was near where the affray happened, and 
 heard all the evidence from one of the coroner’s jury ; and think 
 myself incompetent to be a juror on the trial of the prisoner. 
 
 He was set aside. 
 
 Mr. Judah now appeared, who had been excused from indisposi¬ 
 tion, and was absent when called, and was challenged by Mr. Price. 
 Fan Wyck. Let the gentlemen state the cause of their challenge. 
 Price. Have 1 not the right to ask him now whether he has made 
 up an opinion ? 
 
 Wells. This juror has been now regularly challenged, and the 
 counsel must proceed regularly. 
 
 The Mayor. These are all, I take it, principal challenges to the 
 favour. 
 
 Fan Wyck. Challenges to the favour, as for relationship or any 
 such cause, are principal challenges, and ought to be distinctly 
 stated, that they may be denied or demurred to. The counsel 
 should state his cause of challenge. 
 
 Price. We challenge this juror upon the ground of having ex¬ 
 pressed an opinion. 
 
 The Mayor. That is a proper challenge, and the question is to he 
 put to him by the court, upon oath. 
 
 The juror was sworn upon his voire dire , and the mayor asked 
 him if he had formed any opinion. 
 
 The Juror. From conversation with some of the grand jury after 
 they broke up, I was led to form an unfavourable opinion. 
 
 [Quere, whether this witness might not have meant the coroner’s 
 iury, grand jurors being sworn to keep their counsel and that of 
 their brethren !] 
 
 The proceedings were suspended for a short interval by the 
 coming of the grand jury into court. When they retired, Mr. Fan 
 Wyck observed that he would henceforth leave the gentlemen on 
 ;he other side to challenge as they chose, and should take no fat¬ 
 her exceptions. 
 
 John H. Hieman was then sworn on the voire dire, and the mayor 
 >ut the same question to him, viz. whether he had formed any 
 ipinion on the merits of the question, or the guilt or innocence of 
 he prisoner. The juror answering in the negative, was sworn in 
 hief as a juror. 
 
Israel Horsejield was sworn on the voire dire , and the same ques¬ 
 tion put to him by the mayor. 
 
 Juror. According to the out-door rumours, my opinion was un¬ 
 favourable to the prisoner, but I have formed no fixed opinion. 
 
 Emmet prayed that the question might hereafter be asked in the 
 words used in Self ridge’s trial : “ Have you made up your minds V 
 (See the trial, p. 9.) 
 
 It was then agreed that the clerk take the book and ask the tw* 
 following questions as there propounded : 
 
 1st. “ Have you heard anything of this case, so as to have made up 
 your mind ?” 
 
 2d. “ Do you feel any bias or prejudice for or against the prisoner 
 *t the bar?” 
 
 The juror answered that he had heard nothing but the out-door 
 rumours, and felt no bias for or against the prisoner. (Sworn of 
 the jury.) 
 
 Charles Gordon sworn on his voire dire to make true answer, kc. 
 to the same questions, returned the like answers, that lie had form¬ 
 ed no opinion and felt no bias ; and was sworn of the jury. 
 
 Joseph M. Clark, James Iiallet, Jason M. Bass, and Peter Crarv- 
 buck, were in like manner sworn to make true answers, and to the 
 same questions returned like answers, and were in like manner 
 sworn of the jury. 
 
 James Segoine sworn on his voire dire, and questioned, said he had 
 eertainly given his opinion. 
 
 The Mayor. This comes within the rule laid down. He has 
 given, and therefore made up his opinion. He was set aside. 
 
 John Thompson on his voire dire, answered both questions in the 
 negative, and was sworn of the jury. 
 
 John Redman was in like manner examined, and on like answers, 
 sworn of the jury. 
 
 Price now observed to the court, that if the same questions had 
 been put to Mr. Seaman, and another gentleman first sworn, they 
 would have answered as those did that had been set aside. 
 
 The Mayor. We cannot try those challenges over again, that ii 
 most certain. This rule by which we have been proceeding, was 
 laid down at the suggestion of the prisoner’s counsel. 
 
 John Redman and John Fanderpool were both sworn and examin¬ 
 ed on their voire dire, and answering distinctly in the negative to 
 both questions, were sworn of the jury. And now there was a full 
 jury sworn, and the following composed their panel : 
 
 Clerk. Gentlemen of the jury, answer to your names as they are 
 oalled. Crier, count them. 
 
 James Glass, 
 Garrit Van Cleef, 
 James Iiallet, 
 Jason M. Bass, 
 John II. Seaman 
 Isruel Horse field. 
 
 Charles Gordon, 
 Joseph M. Clark , 
 Peter Crawbuck, 
 John Thompson, 
 John Redman, 
 J«hn Fanderpool 
 
41 
 
 The jurors all answering to their names, and being duly empan¬ 
 elled, the mayor informed those of the general panel that they 
 were discharged; and stated to the gentlemen just now sworn in, 
 that the court had heard of a great number of witnesses, 40, 50, or 
 perhaps 60, that might be examined ; that it was impossible to sup¬ 
 pose they could all be examined, and the trial concluded in the course 
 of one day, and that there was reason to apprehend that several days 
 would be consumed in the proceedings : that the jurors, there¬ 
 fore, might take the opportunity of informing their families of this 
 circumstance, by means of the others of the panel, who were per¬ 
 mitted to go home. 
 
 The jurors then asked permission to go down stairs for a short 
 time, which was consented to on both sides, two officers being 
 sworn to attend them ; and on their return into court, their names 
 were again called over, and all again answered to their names. 
 
 Clerk. Robert M. Goodwin, prisoner at the bar, hold up your 
 right hand. Take it down. Gentlemen of the jury, look upon the 
 prisoner and hearken to his charge. He stands indicted as follows : 
 
 The clerk then read the following 
 
 INDICTMENT. 
 
 City and County of New-York, ss. 
 
 The Jurors of the people of the state of New-York, in and for 
 the body of the city and county of New-York, upon their oath, 
 Present : That Robert M. Goodwin, late of the first ward of the 
 citv of New-York, in the county of New-York, gentleman, not 
 having the fear of God before his eyes, but being moved and se¬ 
 duced by the instigation of the devil, on the twenty-first day of 
 December, in the year of our Lord one thousand eight hundred 
 and nineteen, with force and arms, at the ward, city and county 
 aforesaid, in and upon one James Stoughton, in the peace of God 
 and of the said people then and there being, feloniously and in the 
 fury of his mind did make an assault: and that the said Robert M. 
 Goodwin, with a certain drawn sword made of iron and steel , and of 
 the value of one dollar, which he, the said Robert M. Goodwin, in 
 his right hand then and there had and held, hini, the said James 
 Stoughton, in and upon the left side, near the ninth rib, of him, the 
 said James Stoughton, then and there feloniously, and of the fury 
 pf his mind, did strike, thrust, stab, and penetrate, giving unto the 
 said James Stoughton, then and there, with the drawn sword afore¬ 
 said, in and upon the left side of him, the said James Stoughton, 
 iear the ninth rib of him, the said James Stoughton, one mortal 
 vound of the breadth of one inch and of the depth of eight 
 nches, of which said mortal wound he, the said James Stoughton, 
 hen and there instantly died. And so the jurors aforesaid, upon 
 heir oath aforesaid, do say : That the said Robert M. Goodwin, 
 dm, the said James Stoughton, in manner and by the means afore- 
 aid, feloniously, and in the fury of his mind, did, then and there, 
 ill and slay, against the peace of the people of the state of New¬ 
 ark and their dignity. 
 
 6 
 
42 
 
 And the jurors aforesaid, upon their oath aforesaid, do farther 
 present: That the said Robert M. Goodwin, afterwards, to wit, on 
 the same day and year aforesaid, at the city and county of New- 
 York aforesaid, and at the ward aforesaid, not having the fear of 
 God before his eyes, but being moved and seduced by the instiga* 
 tion of the devil, with force and arms, in and upon the said James 
 Stoughton, in the peace ofGod and the said people then and there ; 
 being, feloniously, and in the fury of his mind, did make an assault; 
 and that the said Robert M, Goodwin, with a certain drawn dagger 
 made of iron and steel , of the value of one dollar, which he, the 
 said Robert M. Goodwin, in his right hand then and there had and 
 held, him, the said James Stoughton, in and upon the left side, near 
 the ninth rib of him, the said James Stoughton, then and there felo¬ 
 niously, and of the fury of his mind, did strike, thrust, stab, and 
 penetrate, giving unto the said James Stoughton then and there, 
 with the drawn dagger aforesaid, in and upon the left side of him, 
 the said James Stoughton, near the ninth rib of him, the said James 
 Stoughton, one mortal wound, of the breadth of one inch, and of 
 the depth of eight inches ; of which said mortal wound he, the 
 said James Stoughton, then and there instantly died. And so the 
 jurors aforesaid, upon their oath aforesaid, do say, that the said 
 Robert M. Goodwin, him, the said James Stoughton, in manner, and 
 by the means last aforesaid, feloniously, and in the fury of bis mind, 
 did kill and slay, against the peace of the people of the state of 
 New-York and their dignity. 
 
 And the jurors aforesaid, upon their oaths aforesaid, do further 
 present: That the said RobertxM. Goodwin, afterwards, to wit, on 
 the said twenty-first day of December, in the year of our Lord one 
 thousand eight hundred and nineteen, at the city and county ot 
 New-York aforesaid, and at the ward aforesaid, not having the fear i 
 of God before his eyes, but being moved and seduced by the insti¬ 
 gation of the devil, with force and arms, in and upon the said James 
 Stoughton, in the peace of God and of the said people then and 
 there being, feloniously, and in the fury of his mind, did make au 
 assault. And that the said Robert 1\I. Goodwin, with a certain 
 weapon, the blade of which was made of iron and steel , and commonly , 
 called a swordcane, and of the value of one dollar, which he, the 
 said Robert M. Goodw in, in his right hand then and there bad a«d 
 held, him the said James Stoughton, in and upon the left side, neai 
 the ninth rib of him, the said James Stoughton, then and there felo¬ 
 niously, and of the fury of his mind, did strike, thrust, stab, anc 
 penetrate ; giving unto the said James Stoughton, then and there 
 with the said last-mentioned weapon aforesaid, in and upon the let 
 side of him, the said James Stoughton, near the ninth rib of him, the l 
 Said James Stoughton, one mortal wound of the breadth of one inch 
 and of the depth of eight iuches, of which said mortal wound he I 
 the said James Stoughton, then and there instantly died. And s< \ 
 the jurors aforesaid, upon their oath aforesaid, do say : That th» 
 said Robert M. Goodwin, him, the said James Stoughton, in mannei j 
 and by the means last aforesaid, feloniously, and in the fury of hit 
 
43 
 
 mind, did kill and slay, against the peace of the people of the state 
 of Nevv-York and their dignity. 
 
 And the jurors aforesaid, upon their oath aforesaid, do further 
 present: That the said Robert M. Goodwin, afterwards, to wit, on 
 the said twenty-first day of December, in the year of our Lord one 
 thousand eight hundred and nineteen, at the city and county of 
 New-York aforesaid, and at the ward aforesaid, not having the fear 
 of God before his eyes, but being moved and seduced by the insti¬ 
 gation of the devil, with force and arms, in and upon the said James 
 Stoughton, in the peace of God and of the said people then and 
 there being, feloniously, and in the furv of his mind, did make an 
 assault. And that the said Robert M. Goodwin, with a certain 
 drawn sword, being part of a swordcane, and made of iron and steel. 
 and of the value of one dollar, which he the said Robert M. Good¬ 
 win in his right hand then and there had and held, him, the said 
 James Stoughton, in and upon the left side, near the ninth rib of 
 aim, the said James Stoughton, then and there, feloniously, and of 
 he fury of hi? mind, did strike, thrust, stab, and penetrate ; giving 
 mto the said James Stoughton, then and there, with the said last- 
 nentioned weapon aforesaid, in and upon the left side of him, the said 
 bunes Stoughton, near the ninth rib of him the said James Stough- 
 on, one mortal wound of the breadth of one inch, and of the depth 
 >f eight inches ; of which said mortal wound he, the said James 
 Stoughton, then and there instantly died. And so the jurors afore- 
 aid, upon their oath aforesaid, do say : That the said Robert M, 
 rood win, him, the said James Stoughton, in manner and by the 
 leans last aforesaid, feloniously, and in the fury of his mind, did 
 hen and there kill and slay, against the peace of the people of the 
 tate of Nevv-York and their dignity. 
 
 The clerk then said to the jury : “ Upon this indictment, gentle- 
 ien, the prisoner has been arraigned ; upon his arraignment he 
 leaded not guilty ; and for trial, puts himself on the country, 
 hich country you are. Your charge therefore will be, to in- 
 uire whether lie is guilty of the felony charged in this indict- 
 ent, or not guilty; and if you shall find him guilty, you are to say 
 >. If you find him not guilty, you are to say so, and no more. 
 
 ■ herefore, gentlemen, sit together and hear your evidence.” 
 
 Van Wyck, District Attorney. May it please the court and gentle* 
 en of the jury. The reading of the indictment has apprised you 
 ■’ the nature of the offence charged against the prisoner. The 
 ncurrence which has led to this result, was one which naturally 
 ccited a great sensation in this city, and the sensibility displayed 
 'a may take as a symptom of honourable feeling among our citizens, 
 ’he Security of life is the most important benefit that civilization 
 infers. It is the keystone of all other security : and when any 
 < mmunity, from the tyranny of its government, the want of govern- 
 iant, or the depravity of its citizens, is arrived at that stage that 
 ian cannot walk abroad in open day without, danger of assassina- 
 t n, its condition is hopeless. 
 
 It becomes my duty to state to you, gentlemen, what will he the 
 
44 
 
 evidence in support of the indictment which has been read to you. 
 The occurrence took place shortly before the new year, in one of 
 the most frequented parts of our city, about the hour of three 
 o’clock, in open da)', between two gentlemen well known to each 
 other. It will appear that the provocation was given by the de¬ 
 fendant. Some former disagreement had existed between them; 
 and as they approached each other the defendant presented his cane 
 towards the deceased, and said, there goes a coward and a scoun¬ 
 drel. They were going in different directions. The deceased 
 turned round and asked the prisoner if he would repeat these 
 words. Something was said by the prisoner, and the deceased, it 
 seems, gave him a blow, and a conflict thereupon ensued. The 
 prisoner laid hold of the deceased and struck him with a sword- 
 cane, the sheath flew off, and in the course of the conflict Mr. 
 Stoughton was stabbed with the dagger, never spoke afterwards, and 
 very shortly died. A coroner’s inquest was held upon the body 
 and returned a verdict of murder. I state that fact w ithout meaning 
 that it should have any influence for or against the prisoner. It is 
 thought to be the opinion of men more learned in the law than we 
 are, that it would be an improper practice to try a man upon a coro- i 
 ner’s inquest, when a grand jury had found an indictment for the 
 same matter. And they have doubts also whether it would not be' 
 reviving an obsolete proceeding. An article too in the constitution 
 of the United States, has been referred to, which has been thought 
 by some to w'arrant that position. The course therefore adopted, 
 has been, to try the prisoner upon this indictment, touching which, 
 there can be no doubt. You are to try him now for the crime of 
 manslaughter. And in all such cases, the killing being once estn- 1 
 blished, the question arises, whether it was a felonious homicide, I 
 amounting to manslaughter, or otherw ise excusable or justifiable. 
 It will appear that the deceased was killed in a sudden affray. A 
 sudden quarrel arose between the parties, and though there may 
 have been indecent language or insulting gestures, that is not the 
 point on which the case can turn. The true and only consideration* 
 are these two: first, whether Mr. Stoughton was killed by the de-l 
 fendant,and second, whether the defendant can show any justificatior 
 or excuse ; for if he cannot, he will be guilty of manslaughtei i 
 at the least. And though it should be thought to amount to a highei 
 crime than manslaughter, that can altei nothing in your verdict, 
 since if it amount to murder it certainly amounts to manslaughter 
 I mention this, gentlemen, to obviate certain erroneous opinions 
 that if a man has committed murder, he is not to be found guilty o 1 
 manslaughter. And though 1 propose te be very brief, gentlemeD 
 in this opening of the testimony, which you will hear in detail Iron 
 the mouths of the witnesses, yet 1 think a little time would not be 
 ill spent in reading some of the law upon this subject. 
 
 The counsel then read from 1 East's Cr. L. p. 232, 619, “ 0: 
 homicide from transport or passion in heat of blood,” as follows 
 “ Herein is to be considered under what circumstances it may b< 
 presumed the act done, though unintentional of death, or grea 
 bodily harm, wag not the result of a cool deliberate judgment, sm 
 
45 
 
 previous malignity of heart, but imputable to human frailty alone.” 
 
 “ Upon this head it is principally to be observed, that whenever 
 death ensues from a sudden transport of passion, or heat of blood, if 
 upon a reasonable provocation, or without malice, or if upon 
 sudden combat, it will be manslaughter : If without such provoca¬ 
 tion, or the blood has had reasonable time or opportunity to cool, or 
 there be evidence of express malice, it will be murder. For let it 
 be again observed, that in no case can the party killing alleviate his 
 case, by referring to a previous provocation, if it appear by any 
 means that he acted upon express malice ; it becomes then material 
 to consider what is a sufficient provocation. Words of reproach, 
 bow grievous soever, are not sufficient to free the party killing 
 from the guilt of murder ; nor are contemptuous nor insulting ges¬ 
 tures, without any assault upon the person.” 
 
 The distinction is, gentlemen, that if the killing take place upon 
 mere words, it is always murder ; if upon the provocation of a 
 blow, it may be reduced to manslaughter. But if he had given the 
 other a box on the ear, or had struck him with a stick, or other 
 weapon not Likely to kill, and had unluckily, and against his will, kill¬ 
 ed him, it had been but manslaughter ; for no malignant intention 
 can be collected from such acts. 
 
 But if any assault made with violence, or circumstances of 
 indignity, upon a man’s person, as by pulling him by the nose, 
 be resented immediately by the death of the aggressor, and it ap¬ 
 peared that the party acted immediately without heat of blood, up¬ 
 on that provocation, it will reduce the crime to manslaughter. So my 
 Lord Hale says it would be, if A. riding upon the road, B. had whip- 
 ■ ped his horse out of the track, and then A. had alighted and killed B. 
 
 Mr. Fan Wyck then passed on to page 233 of the same author, § 
 23, and read these words : “ In all the instances above enumerated, 
 the party killing is supposed to have taken all advantages in the 
 heat of blood over the person slain ; but to have received such pro¬ 
 vocation as the law presumes might, in human frailty, heat the blood 
 to a proportionable degree of resentment, and keep it. boiling to the 
 moment of the fact; so that the party may be considered as acting 
 under a temporary suspension of reason, and not from any deliberate 
 malicious motion. And it has been shown, that in the case of a le¬ 
 gal provocation, strictly so considered, this heat will extenuate the 
 guilt of the parties acting under its adequate influence, even though 
 he made use of a deadly weapon.” And in page 239, § 23, this au¬ 
 thor continues : “ In no case, however, will the plea of provocation 
 avail the party if it were sought for and induced by his own act, in 
 order to afford him a pretence for wreaking his malice, as where 
 
 A. and B. having fallen out, A. says he will not strike, but will give 
 
 B. a pot of ale to touch him, on which A. strikes, and B. kills him, 
 
 ' this is murder.” 
 
 I shall now, gentlemen of the jury, state in few’ words by way of 
 anticipation, what may possibly be set up as a defence. It will, 
 perhaps, be said that this act was done in self-defence ; but the 
 law is, that any person who sets up a plea of self-defence, must 
 show that he was so pressed as to be in danger of great bodily 
 
46 
 
 harm, for, if there were not just cause for such fear, he ought to 
 retreat, and I apprehend this case will not amount to that. 
 
 It may be further pretended, that in this sudden conflict, the 
 wound was given by accident, without any volition or purposed act 
 on the part of the defendant. I can only say, from the testimony of 
 those who saw and examined the wound, that it appeared to have 
 been no less skilful than atrocious, and that it could not be given 
 without human aid. That the deadly weapon with which it was 
 inflicted, could not have penetrated the body as it did, nor have 
 been again withdrawn, but by a human hand ; and if it was given by 
 the hand of the prisoner, it will be irresistibly conclusive that he is 
 guilty of the crime at the very least of which he now stands charged. 
 
 Here one of the jurors (Mr. Crawbuck) requested to have per¬ 
 mission to speak with his son, whom he perceived to be iu court, 
 which, upon all the counsel consenting, was allowed. 
 
 First Witness for the Prosecution—Benjamin Clark. 
 
 Was affirmed, and then examined by Fan Wyck , District Attor¬ 
 ney. Being desired to state what he saw and knew of the manner 
 in which Mr. James Stoughton came by his death, he gave his evi¬ 
 dence as follows : 
 
 On the 21st of 12th month (December) last, I saw the prisoner 
 and James Stoughton approaching each other in a hostile attitude, 
 at the southwest corner of Broadway and Courtlandt-street. The 
 prisoner struck Mr. Stoughton with his right hand on the head, and 
 knocked him down. Mr. Stoughton rose immediately, and return¬ 
 ed the blow, as it appeared to me, upon the head, or on the face of 
 the prisoner. At that time I interfered, and took Mr. Stoughton by 
 the collar with my left hand, and attempted to take the prisoner at 
 the bar by the collar with my right hand, butmissed my hold, and pass¬ 
 ed my arm across his breast. 1 looked the prisoner in the face, and 
 exclaimed to this effect: What! gentlemen fighting in the street ? 
 He replied, he struck me. I turned to Stoughton, looked him full 
 in the eye, and then first recognized him. His eye had a stern, 
 full look, for perhaps three or four seconds : then he threw up his 
 eyes, fell back, and fainted ; and the bystanders broke his fall, and 
 I let go my hold of his shoulder. I then looked at the prisoner, 
 and saw the dagger of a swordcane in his hand. I assisted to carry 
 Mr. Stoughton upon the side walk, to the store next the corner of 
 Courtlandt-street and Broadway, upon the stoop of the store. Some 
 person opened his clothes, his surtout, body coat, and waistcoat; 1 
 think his surtout coat was buttoned. It was a blue overcoat, with 
 large capes. 1 noticed that his countenance was ghastly, and sup¬ 
 posed that he w’as dying. The bystanders took him up, and carried 
 him into the store, and I followed. They laid him on the counter, 
 in the back part of the room—I took hold of his hand and called 
 him by name. I passed along by his side, raised his shirt, per¬ 
 ceived a little blood, and then discovered a wound. He appeared 
 to me to be expiring : 1 left the store, was absent about ten min¬ 
 utes, returned, and found that he was dead. 
 
47 
 
 Van Wyck. When you first saw them, how far off were you ? 
 
 Wit. As near as 1 can recollect, 1 was about fifteen feet from 
 Courtlandt-street, going down, and they were on the other side. It 
 was in Broadway, on the right hand, on the west side, on the flag¬ 
 stones. When 1 first saw them, they were on the opposite side ; 
 when Mr. Stoughton fell, he fell on the round pavement, on the 
 cartway. 
 
 Q. Would you know the swordcane again if you saw it ? 
 
 Ji. I have no particular mark to know it by. I have a recollec¬ 
 tion of the appearance of it. 
 
 Counsel. State the position of the parties when you first saw them. 
 
 Wit. The prisoner was perhaps four or five, or six feet, from the 
 corner of the sidewalk, and nearly, but not directly facing me. 
 
 Q. What was Mr. Stoughton’s position ? 
 
 A. Very near the corner of the curbstone. He was upon the 
 sidewalk when he received his deathblow ; he fell off quartering 
 with his head from Mr. Goodwin, and hiS feet towards him ; his 
 feet perhaps a foot from the sidewalk. 
 
 Q. Did you see the swordcane during the time that they were 
 fighting ? 
 
 A. I did not see it till he fainted and fell. When he fell, the 
 prisoner and 1 both stood still in the position we had been in. 
 
 Q. Did Mr. Stoughton fall on his back, or on his side ? 
 
 A. He fell on his back—his breech appeared to take the force 
 of the blow. 
 
 Q. Did any one assist him to rise the first time ? 
 
 A. The first time he rose of himself. 
 
 Q. Did he ever speak after that rising ? 
 
 A. No. I am not sensible that he spoke at all. 
 
 Q. How did he look ? 
 
 A. The look that he gave me was a full intelligent look. It ap¬ 
 peared to me that his hip received the force of the shock. 
 
 Q. When Mr. Stoughton fainted, did you make any remark to 
 Ur. Goodwin upon the matter ? 
 
 A. No. No words passed but what I have stated. I said—- 
 vhat! gentlemen fighting in the street ? and Mr. Goodwin’s reply 
 vas—he struck me. 
 
 Q. Was any thing said immediately about Mr. Stoughton’s being 
 tilled ? 
 
 A. When he fell the second time, a bystander said he had faint¬ 
 'd j and some person broke his fall, and let him down upon his seat. 
 
 Cross-examined ly Hoffman. 
 
 Counsel. You were going down Broadway, and the first thing 
 
 on saw was a blow by Mr. Goodwin with his right hand, which 
 
 rought Mr. Stoughton to the ground ? 
 
 A. It was. 
 
 Q. Are you not confident that, at that time, Mr. Goodwin had no 
 
 ane nor weapon in his right hand ? 
 
 A. I have no recollection of seeing any thing in his hand. 
 
 Q. You say that when Mr. Stoughton fell, you saw Mr- Goodwia 
 
48 
 
 having a sword belonging to a swordcane. Was it not your first 
 intention when you saw Mr. Stoughton fall, immediately to suc¬ 
 cour him ? 
 
 A. Yes, immediately. I took no longer time to loek round, than 
 the moment when I saw Mr. Goodwin standing with the sword in 
 his hand, and then I turned my eyes again upon Mr. Stoughton. 
 
 A. After you had said, What! gentlemen light in the street ?— 
 and then turned your back to Mr. Stoughton—did not you keep I 
 him in view till he fainted ? 
 
 A. I did. I kept sight of his eye till he fainted. 
 
 Q. Did you look again at Mr. Goodwin after Mr. Stoughton fell ? 
 
 A. When he fell, I turned my head again to the prisoner, and 
 saw the dagger in his right hand. This was after he had fainted 
 and fell the second time. 
 
 Q. By Van IVyck. Was a considerable crowd there at that time ! ] 
 
 A. Yes. I should suppose that in a moment or two there were 
 a hundred persons. 
 
 Q. 1 mean when you first w r ent up to them—were not some 
 gentlemen there ? 
 
 A. Yes—there were two or three a little below them, on (he 
 sidewalk in Broadway. 
 
 Q. Did vou see Mr. Goodwin go off at that time ? 
 
 A. As 1 was following Mr. Stoughton into the store, the prisonei 
 passed with another gentleman, and some bystander meutionei 
 who it was. 
 
 Q. What was his manner in passing—did he seem agitated ? 
 
 A. His gait was easy and natural, as on any ordinary occasion. 
 
 Q. Was he with or without a hat ! 
 
 A. He had a hat on. 
 
 Q,. You mentioned that you took up the hat of Mr. Stoughton 
 was it so ? 
 
 A. I supposed, when I picked it up, it was Mr. Stoughton’s, bu 
 it proved to be Mr. Goodwin’s. . i 
 
 Q. Can you recollect whether, when you first saw Mr. Goodwin 
 his hat was oft ? 
 
 A. My impression is, that when Mr. Stoughton rose and strucl 
 Mr. Goodwin, he knocked Mr. Goodwin’s hat off. 
 
 Q. By a juror. You stated that there were a few gentlemen be 
 low them ; what distance do you think they were off.? 
 
 A. 1 cannot precisely say ; there were two or three, but in¬ 
 attention was drawn to the parties — they were not so near but the 
 the parties had elbow room. They might be at a distance of lout^ 
 five, or perhaps six feet. I cannot say exactly. _ y 
 
 (j. Did they appear to be merely standing and looking at th 
 parties ? 
 
 A. It seemed so. 
 
 Q. By another juror. Did you perceive the cane at any time i! 
 the. hands of Mr. Stoughton ? 
 
 A. No. He had nothing in his hand. 
 
 Van Wyck. Have you seen the cane since so as to know it again; 
 
49 
 
 A. I saw the dagger at the time, and hare seen the cane since, 
 but have no mark upon it. I know the general appearance of rt„ 
 Q. Bija juror. When you said Mr. Stoughton returned the blow, 
 at what time did you mean ? 
 
 A. When Mr. Goodwin struck and knocked him down, he rose 
 as quick as you may suppose a man could, and returned the blow. 
 
 V'in U i/rk (showing the witness two canes) asked him whether 
 he could say which was the one. 
 
 A. My impression is (taking up that containing a dagger) that 
 ;his is the one, though it does not now appear quite so long, but my 
 mpression is that it w’as such as that. 
 
 A juror. Are we to understand the witness that that is the same 
 [j wo rd cane ? 
 
 II itness. That is either the same dagger, or resembles it very 
 nuch ; but 1 presume many others might be produced amongst 
 vhich I could not distinguish. 
 
 Second ■witness for the prosecution—Maltbie Weed. 
 
 Being sworn and desired to relate what he knew of the transact 
 ion, he stated as follows : 
 
 I was standing in the door of my store, on the southwest corner 
 fCourtlandt-street and Broadway. While there, the two parties 
 let nearly opposite the door on the corner of the curbstone. Mr. 
 coodwin was going down and Mr. Stoughton going up Broadway. 
 ,s they met, Mr. Goodwin shook his cane in Mr. Stoughton’s face. 
 Q. Did you hear any words at that time ? 
 
 A. I did not, sir ; a word or two passed, as I judged from the mo- 
 on of their lips, but I did not hear them. After they had met and 
 assed each other, Mr. Stoughton went on a few steps, and return* 
 
 1 d and stepped up to Mr. Goodwin. A word or two passed, as I 
 idged from the motion of their lips, and then Mr. Stoughton struck 
 fr. Goodwin. After that, Mr. Goodwin brought up his cane and 
 ruck Mr. Stoughton; and as Mr. Stoughton received the blow, 
 le sheahed part of the cane flew out. Mr. Stoughton then fell, on 
 te receipt of the blow. 
 
 Q. How long did the conflict last ? 
 
 A. I should think not more than four or five minutes, probably 
 i bt so long. 
 
 Q. Did several blows pass ? 
 
 A. 1 saw only two. One that Mr. Stoughton gave Mr. Goodwin, 
 id one that Mr. Goodwin gave Mr. Stoughton. By that time, a 
 imber of spectators got round them, and as I remained standing 
 . the door, I could not have a view of them. 
 
 Q. How were the parties dressed ? 
 
 A. I believe Mr. Goodwin had a drab, and Mr. Stoughton had % 
 lue great coat. 
 
 Q. Were there large capes to both their coats ? 
 
 A. I believe there were, but cannot state very distinctly. 
 
 Q. Would you know the cane ? Did you see it at the time ? 
 
 A. Yes. I saw it at the time. 
 
 Ill 7 
 
50 
 
 ($. Would you know it again ? 
 
 A. I might, perhaps. 
 
 Q. Did you see it at the grand jury ? 
 
 A. I did. 
 
 Q. Was that it ? ( showing it.) 
 
 A. According to my recollection, that is it. It was laid upon m 
 eounter ; 1 only looked upon it, and laid it down again. My lm 
 pression is, that this is the same. 
 
 Q. Did you see the position in which Mr. Stoughton fell ? 
 
 A. He fell back from Mr. Goodwin. 
 
 Q. How long was it after the tirst blow till Mr. Stoughton fell ? 
 
 A. One or two minutes, perhaps, before he fell tirst; rathe 
 more before they were parted and he fell the second time. 
 
 Q. After Mr. Stoughton rose, did any more blows pass betwee 
 them ? 
 
 A. 1 did not see Mr. Stoughton rise, except with the aid of som 
 of the spectators. 
 
 Q. Do you mean after he fainted ? 
 
 A. It was after he fell ; I did not know that he had fainted. Bi 
 it appeared to me, that after he fell he was raised by some of th 
 spectators. 
 
 Q. Was he wounded at the time you speak of ? 
 
 A. I do not know, sir, indeed. 
 
 Q. Was he not, after he fainted, carried into the store ? 
 
 A. He was carried to Mr. Van Antwerp’s stoop, and lay son 
 time there. 
 
 Q. Did you see the dagger in the prisoner’s hand after the d 
 ceased fell ? 
 
 A. I did not, sir. He stepped into my store and out again. 
 
 Q. Might Mr. Stoughton have been stabbed in this conflict ai 
 you not see it ? 
 
 A. I think he might. 
 
 Q. Had Mr. Stoughton any stick or weapon in his hand ? 
 
 A. I did not see any. 
 
 Q. Which appeared to have the advantage in the conflict at firs I 
 
 A. I thought they appeared to have equal advantage at the tig' 
 I saw them, and I could see no advantage until Mr. Stoughton fell 
 
 Q. Did you know the person of Mr. Stoughton ? 
 
 A. I knew him by reputation and by sight. 
 
 Q. Did you know Mr. Goodwin at all ? 
 
 A. No farther than by seeing him then and hearing him named i 
 
 Q. Did Mr. Stoughton usually pass that way about that tii 
 of day ? 
 
 A. I do not know. 
 
 Q. Who was with Mr. Goodwin ? 
 
 A. A persou who 1 was told was Mr. Cambreleng. 
 
 Cross-examined by Hoffman. 
 
 Q. When Mr. Goodwin passed Mr. Stoughton, you say he cc 
 tinued on. What distance had he passed before Mr. Stougkli’ 
 turned. Was it not to the opposite side of Courllandt-street '! 1 
 
51 
 
 A. I think it was. They were nearly opposite my store when 
 they passed at the southwest corner of Courtlandt-street. Mr. 
 Goodwin continued his walk down Broadway. 
 
 Q. Did he continue on his way without halting, stopping, or look¬ 
 ing back ? 
 
 A. He did. 
 
 The Mayor. You think, sir, it was on the southwest corner of 
 Courtlandt-street where they passed each other? 
 
 A. It was above my stoop a little, but nearly opposite my door, 
 where they first passed. The affray took place just above, on the 
 lower corner. After a few words had passed, Mr. Stoughton struck 
 him on the shoulder. 
 
 Q. Were there any intermediate blows after Mr. Goodwin struck 
 with the cane and the head flew off? 
 
 A. No, sir. 
 
 O. Did you ever see Mr. Stoughton rise after the first blow ? 
 
 A. I did not see him rise. 
 
 Q. You say Mr. Goodwin came into your store. Had he a hat 
 «n at that time ? 
 
 A. I did not take notice. I cannot recollect. 
 
 Q. When he left your store, did he walk leisurely away ? 
 
 A. I did not see him after that. 
 
 Q. Did he not come in to wait for his hat, and was he not stand¬ 
 ing there waiting till they could find it ? 
 
 A. I cannot, indeed sir, recollect, 
 
 Q. When he lifted this cane and the sheath flew off, had he hold 
 of the end or small part of the cane ? 
 
 A. He held it so, (taking it by the large end.) 
 
 Q. Did Mr. Stoughton, upon that blow, immediately fall ? 
 
 A. He did. I saw no blow whatever given by Mr. Goodwin after 
 that. 
 
 Q,. Did you see him even approach to strike him after that ? 
 
 A. After that 1 had no distinct view, because of the crowd. 
 
 Q. By a Juror. Did you not see him after the sheath parted or 
 flew off, or when Mr. Clark laid hold of him ? 
 
 A. I did not see him then, for the spectators gathered about them. 
 
 Hoffman , producing a ground plan, asks witness whether, when 
 they first met, they were not near the corner of the curbstone, and 
 whether Mr. Stoughton did not afterwards advance near to the 
 other corner before he turned round. 
 
 The Mayor then put other questions to the witness to fix the 
 respective positions of the parties more definitely, to which he 
 answered that the witness was accidentally at his door, he did not 
 see Mr. Clark at all, he saw nobody join in the conflict, and saw 
 no other weapon. Mr. Goodwin held the cane in his right hand, 
 and stood nearly with his back towards the witness ; his left side to 
 the northward, but something obliquely ; his right arm must have 
 been visible to the witness. 
 
 Q. by a Juror. You say the sheath flew off when he struck, and 
 
52 
 
 you saw no dagger; how do you know there was a dagger or a 
 sword ? 
 
 A. Immediately after Mr. Goodwin gave the deceased the blow, 
 I saw the two parts of the cane on the cartway. The sword lay 
 there immediately after Mr. Stoughton fell. 
 
 Van Wyck then produced a blue coat with capes, brought in by 
 Mr. Stoughton’s servant, which the witness supposed to be the same 
 he had on, though he did not notice it particularly. (It was pierced 
 at the part corresponding with the situation of the wound as de¬ 
 scribed.) 
 
 Third witness for the prosecution — Dr. Valentine Mott. 
 
 Q. Did you examine Mr. Stoughton shortly after this happened ? 
 please to state what you saw and heard. 
 
 fVitness. 1 should beg the permission of the court to look at the 
 evidence I gave on the coroner’s inquest, which l signed my name 
 to, as something may have escaped my memory. 
 
 The Mayor. I think this would not be right. It is not like the case 
 where a party makes a memorandum for his own use in a civil case, 
 and is allowed to refresh his memory as to some particular facts ; 
 the reason then is different. The witness then proceeded. 
 
 Witness. I was requested, but on what day of the week or month 
 I cannot remember, to go and see a person said to have been killed 
 in Broadway ; when I arrived at the house, I found Mr. James 
 Stoughton lying upon a counter dead. He was said to have been 
 wounded, which led necessarily to the examination of his body. 1 
 found on the left side a wound, about an inch in length, perhaps 
 less. From this wound had issued a little blood, which appeared 
 particularly upon his linen. 1 introduced a probe into the wound, 
 and" found it went the whole length of the probe. I laid open his 
 body for the purpose of ascertaining the extent and nature of this 
 wound. And upon close inspection, I found that the wound passed 
 through the lower part of the left lung, through the bag which sur¬ 
 rounds the heart; and through the point or apex of the heart itself, 
 transfixed the heart through the bag on the opposite side. And, I 
 believe, the point of the instrument was arrested by the breastbone. 
 In its passage through the heart, it opened the left ventricle or great 
 cavity of the heart ; and from the oblique direction which it took, 
 it passed nearly through the right cavity or ventricle, but did not 
 open it, passing only through the fleshy part. I should have stated 
 that it passed between the ninth and tenth ribs, rather nearer the 
 backbone than the middle of the body, and the violence with which 
 it entered split off a portion of the lower or tenth rib ; there was 
 considerable blood, as of course, poured out into the chest near the 
 heart. It was doubtless made with a pointed instrument. 
 
 The sword was now produced. 
 
 Q. Van Wyck. Do you suppose that instrument would have in¬ 
 flicted such a wound ? 
 
 A. Such an instrument as that (if not that very instrument) 
 would have produced such a wound. From the direction of the 
 
53 
 
 wound, and its termination, it would have required an instrument 
 of eight inches. 
 
 (Here the witness showed the district attorney, with the weapon 
 in his hand, how it entered, about the middle of the line between 
 the sternum and the backbone.) There is no doubt it occasioned 
 his death. It was clearly a mortal wound. 
 
 Van Wyck. Could any kind of wound have occasioned death 
 quicker than that ? 
 
 A. It might be that other wounds would cause more instan¬ 
 taneous death. 
 
 Q. What other wound ? 
 
 A. A wound made by such an instrument going into the right 
 or principal artery of the system, called the Aorta. 
 
 Q. Would it not, if given with such force, have penetrated 
 the breastbone ? 
 
 A. It would have required very great velocity to have pene¬ 
 trated the breastbone. 
 
 Q. Could that wound have been given without a stroke ? 
 
 A. Certainly it might by a fall, if a man fell upon it. 
 
 Q. If such a wound was given by a fall upon such an instru¬ 
 ment, would the instrument fall out of itself ? 
 
 A. 1 think not, unless it was drawn out. 
 
 Q. Could a person, having received such a wound, have strength 
 enough immediately afterwards to rise ? 
 
 A. Undoubtedly. 
 
 Q. How long might a person live after such a wound ? 
 
 A. A very short time perhaps, or perhaps a number of hours, 
 or even days. And persons have been known to live fourteen or 
 sixteen days after a musket ball having passed through the heart, 
 and opened one of the great cavities I have mentioned. 
 
 Q. If Mr. Stoughton had fallen upon the instrument, would it 
 have fallen out again of itself ? 
 
 A. Upon feeling this handle I perceive it is very heavy : it 
 might have been extracted by being shaken, or caught, or brought 
 out partly by its own weight and partly by the movement of the 
 clothes, without being pulled out with the hand of any person. 
 
 Q. YVhat clothes had Mr. Stoughton on ? 
 
 A. A great coat, tight coat, and other usual clothing. 
 
 Q. Had he a flannel shirt ? 
 
 A. I did not examine whether he had. 
 
 Q. Would it have fallen out if it had been struck through all 
 those clothes ? 
 
 A. It would have fallen more probably, because of those clothes 
 moving about him. 
 
 Cross-examined by Mr. Emmet. 
 
 Q. You mention that it passed through all those clothes that 
 you have named. Now I ask you whether, to inflict such a 
 wound and pierce through so many obstacles, would not require 
 more than ordinary strength ? If you were not inclined by other 
 circumstances to draw a conclusion, would you not think it more 
 
54 
 
 likely to have happened from the weight of a person falling upon 
 
 the weapon ? 
 
 A. I have reflected a good deal, and am of opinion that the 
 wound was more probably inflicted by a fall upon the instrument 
 than by the hand of any person. 
 
 Q. Considering the entrance of this wound aod its internal di¬ 
 rection, do you think it likely to have been given by a man standing 
 in front of another, and that other in the act of falling away from 
 him ? 
 
 A. 1 should not think it likely. 
 
 Q. One question more, doctor, if you please. The difficulty of 
 its coming out unless drawn by the hand has been mentioned. Now 
 if the weapon had entered thus, (showing) is there any improba¬ 
 bility that it might have come out by the persons’ lifting the de¬ 
 ceased, or the motion of his clothes ? 
 
 A. it might he so. 
 
 Van Wyck. Might not this have happened from a blow given with 
 the force of a man in a scuffle ? 
 
 A. It would then have been with more than ordinary violence, 
 by a very strong person, with unusual effort. 
 
 Van Wyck. Might it have come out by means of the person 
 who gave the blow still holding it, and the other falling off from 
 it, or falling down. 
 
 A. 1 can conceive that the instrument may have been entered 
 first bv a blow' or stab, and then that the person falling on it 
 may have pushed it farther in : but it would not be a man of 
 ordinary strength that could have given that wound with a blow 
 simply. It would not be a man of our times. It may, however, 
 have been it) the hand, and the person killed by falling upon it. 
 
 Q. Must not he have fallen at the same time with the de¬ 
 ceased ? 
 
 A. That is the more probable way, for the instrument will not 
 stand upright of itself. The body must, of course, in that case, 
 have fallen upon it accidentally. It must have entered very 
 violently and very suddenly. I he weight of the deceased’s body 
 coming upon an instrument of that kind, might very easily occa¬ 
 sion the wound. 
 
 Q. Is it not then probable that the weapon has first entered 
 bv a blow, and t^en the fall pressed it further into the body ? 
 
 A. 1 think not, for the stroke of a person’s hand would not pro¬ 
 bably have split the rib. 
 
 Q. Might not a man of considerable force, an athletic man, have 
 struck hard enough to have split the rib ? 
 
 A. 1 do not think it so likely to happen that way. 
 
 Q. Is that rib peculiarly strong ? 
 
 A. No, the ribs are nearly of the same strength till you come 
 lower down than the ninth or tenth. 
 
 Emmet. As the steel part of it is very small and light, and the 
 handle large and heavy, might it Dot have possibly fallen with the 
 
55 
 
 head downwards, and by meeting with some oblique surface con¬ 
 formable to its shape, have stood upright ? 
 
 (N. B. The head of this dagger was not quite square or trans¬ 
 verse, but somewhat bevelled and tipped with silver.) 
 
 A. Certainly it might. 
 
 Emmet. 1 observe that the edge towards the point of it is a little 
 turned. Would it not have required great force to turn the edge in 
 that way ? 
 
 A. Certainly. 
 
 Emmet. Would it not have required more than superhuman 
 force to have inflicted such a wound upon a man who was at the 
 moment falling away from the person striking ? 
 
 A. 1 think such an effort of muscular strength would have been 
 required at least, as would have made the action by which it was 
 exerted very manifest. 
 
 Van Wyclc. Might not such a number of wide capes have still 
 prevented the action or motion from being distinctly seen ? 
 
 A. If it had been a simple or ordinary wound, they might : but 
 not, 1 think, so violent an exertion as this must have been. Both 
 suppositions are possible, but the other is more probable. 
 
 A Juror. Could a person standing face to face with another, in¬ 
 flict a wound in the place where this was given ? 
 
 A. I think it might be done : but it must have been dune very 
 deliberately and designedly, and by a man of very extraordinary 
 strength 
 
 The .Mayor. If the two parties stood opposite each other, it could 
 only be done by stretching the arm and reaching with the hand 
 round the body of Mr. Stoughton ? 
 
 A. In order to pierce the body as it did, it must have been en¬ 
 tered with the hand very far behind. 
 
 Here Mr. Van Wyck stood up to give the witness an opportunity 
 of demonstrating his opinion. And Mr. Emmet in like manner beg¬ 
 ged of Air. Ogden to stand in the position supposed to be that of 
 the deceased. Air. Wells also stood up, and placing himself a little 
 sideways, asked, whether it might not have been easily done with 
 the arm, supposing the party so far turned. Air. Emmet ask¬ 
 ed, in that case, whether it would not have rather passed straight 
 through the body, and not upwards. To ascertain the relative po¬ 
 sitions of the parties, and their attitudes, Griffin begged to call Mr. 
 Clark again ; he was accordingly called and further examined. 
 
 Witness. I came up when Mr. Stoughton was about to give Mr. 
 Goodwin a blow, and I took Stoughton by the collar with my left 
 hand ; Mr. Goodwin’s face was then on my right hand. They were 
 [standing nearly fronting each other, with about the breadth of my 
 body between them. 
 
 Messrs. Van Wyck and Griffin then stood up, that Mr. Clark might 
 place them before the court and jury in the manner the parties 
 were,in respect to each other. 
 
 Emmet. If Mr. Goodwin had inflicted the wound, he must have 
 
5(j 
 
 stretched not only round the body of the deceased, but across a 
 space equal to yours. . 
 
 It being; now 5 o’clock, the mayor, after cautioning the jury not 
 to talk upon the subject so as to make up their minds, till they had 
 heard the rest of the testimony, observed that some refreshment 
 was prepared for them, lest the fatigue they were likely to under¬ 
 go might overcome their strength, and render them incompetent to 
 their duties. . 
 
 The jury were then committed to the charge of several of the 
 offtcers duly sworn for that purpose, and the court adjourned till 
 6 o’clock. 
 
 At 6 o'clock P. M. the court met. 
 
 PRESENT AS BEFORE. 
 
 The jury were called over, and each answering to his name, the 
 trial proceeded. 
 
 Fourth witness for the prosecution — Dr. Cyrus Perkins. 
 
 Witness. I examined the body of Mr. Stoughton, and observed a 
 wound through the skin about half an inch long, between the ninth 
 and tenth ribs, somewhat nearer the back than the breastbone. It; 
 direction was upwards, and probably touched the breastbone ; which 
 however, w T as not examined to see whether it was wounded. The 
 instrument passed through the left lung, and through the heart anr 
 the sack which contains it. In passing through the heart, it open¬ 
 ed one of its principal cavities. I suppose the instrument penetratec 
 about ten inches. 
 
 Q. Did yon see the instrument ? 
 
 A. I saw that which it was said made the wound. (Mr. Van Wycl 
 shows the witness the sword.) I examined the instrument at th( 
 time ; this appears to me like it. 
 
 Q. Did you examine the clothes to see if they were perforated? 
 
 A. 1 did not. This was at the dissection by Doctor Mott. 1 did no 
 examine the wound, I only judged from the size of the body, an 
 the direction in which the wound was traced, and had no doubt tha 
 the wound occasioned the death. Mr. Stoughton was dead when 
 came there. 1 perceived that the lower edge of the ninth rib wa 
 wounded where it was very thin, and the edge was split off. 
 
 Q. Could a man of ordinary strength have given a blow wit 
 such an instrument, so as to split the rib, and then penetrate th 
 body as was done ? 
 
 A. It is my belief that it wrnuld not have required very grei 
 
 force. 
 
 Q. Are you very certain as to the rib which was wounded ? 
 
 A. 1 have no doubt. 
 
 Q. How vras the direction of the wound ? 
 
 A. Forwards, upwards, and inwards, towards the centre of th 
 body. 
 
 Q. If the instrument had entered by a blow, would it probabl 
 have fallen out of itself ? 
 
57 
 
 A. I think it doubtful; I could not give a confident opinion upon 
 that point. 
 
 Q. Is the interior part of the .body and the substance through 
 which it passed, such as would probably retain it ? 
 
 A. The skin itself would retain it, more than any other part through 
 which it passed, from its elasticity. The instrument had only one 
 cutting edge, so that the skin must have closed round, and adhered 
 strongly to the instrument. 
 
 Q. VVould that part of the heart through which it passed hold it ? 
 
 A. More closely than any other through which it went, being a 
 strong muscular part. 
 
 Q. Supposing two persons in close conflict, would it have been 
 possible for one to have struck the other in this way ? 
 
 A. It would depend upon their relative situations. 
 
 Q. If they stood front to front ? 
 
 A. If they did, and were near enough, there would be no diffi-* 
 ;ulty in inflicting a wound of that kind. 
 
 Q. Could it have been given by a person holding the dagger that 
 way ? (holding it after the manner of a hand and dagger in he¬ 
 raldry.) 
 
 A. If the two persons were of equal height, it would be hard, 
 mless one stood in some way higher than the other. 
 
 Q. Suppose they stood on equal ground, and the party struck 
 inder the arm of the other ? 
 
 A. It ought then to be done this way : (turning the instrument 
 he other wav.) 
 
 .Mr. Wells : and Mr. Van Wyck again stood up, that the witness 
 (light explain his exact meaning. 
 
 Q. Supposing the parties to be clinched at the time ? 
 
 Witness. I think any man may tell just as well as I can. 
 
 Griffin. Would you have personal strength enough to force that 
 ito the body oi a man to its whole extent ? have you any doubt 
 f your power to plunge it ten inches into a human bodv ? 
 
 A. 1 have not. 
 
 Alderman Allen. Standing right front to front, it could only be 
 one m this way : (with the arm round, and the point returning.) 
 .ould you employ your whole strength in that way ? 
 
 A. Not so well as in other ways of using it. 
 
 Q. At what angle with the vertical line do you think it entered 
 le body ? 
 
 A. I think about forty-five degrees, or not far from that. 
 
 Q. Have you any doubts that you would have strength enough to 
 ve such a blow ? ° & 
 
 A. 1 should not have any doubt that any person could do it : for 
 understood Dr. Mott to speak of the edge of the rib Now the 
 pper edge of the rib is thick, but the lower is thin, and would re- 
 (it but bttie, and it was the lower edge that was splintered. 
 
 Have you reflected on the circumstances of probability, how 
 f thls might be by a fall or-by a blow ? 
 
 8 
 
A. 1 have heard it suggested, and therefore have reflected. There 
 is but one way with any probability that it could have happened 
 from a fall. The range of possibility indeed is very wide ; but if 
 it was from a fall, 1 think the instrument must have been held in 
 the hand this way, (as last described) and the other party then 
 have fallen upon it, and both have fallen together. 
 
 Q. Is there any probability of its having fallen upon the head 
 and stood up ? 
 
 A. It is possible, but not at all probable. 
 
 Q. Which is most probable, the blow or the fall ? 
 
 A. I would rather not answer that question, il it is not necessary. 
 
 Q. The question is, whether you think it most probable that it 
 was by a blow or by a fall ? 
 
 A. As there is only one way in which it could be inflicted by a i 
 fall, and many by a blow, I must think it was more probably by a 
 blow. 
 
 Q. Might it probably fall out of itself? 
 
 A. 1 should not expect that it would fall out instantly, but it 
 might. 
 
 Q. Suppose it to have passed through the coat, great coat, waist¬ 
 coat and shirt ? 
 
 A. I think the skin alone would make more resistance than all 
 the rest. 
 
 Q. Could the party, in your opinion, who inflicted the wound, 
 when the deceased fell off from him, have parted with and left it in 
 his body, and it then have fallen out of itself ? 
 
 A. I think the one who inflicted the wound must rather have 
 fallen with the other. He must eitiier have left it, or used some 
 exertion to withdraw it. 
 
 Q. How long do you presume the party could have lived aftei 
 receiving this wound ? 
 
 A. It is not possible to say with certainty. There are some ex 
 traordinary cases ; but I should not think that one so wounded couk 
 live above five minutes—1 judge from other similar cases. 1 have 
 known instances of men who have inflicted very heavy blows aftei 
 receiving such death wounds. 
 
 Cross-examined by Emmet. 
 
 Q. Was it not Dr. Mott that performed the operation ? 
 
 A. It was. 
 
 Q- You say it struck the lower part of the ninth rib—would no 
 that change its first direction ? 
 
 A. It would in some degree. 
 
 C. Would the striking upon the upper part of the tenth rib, havt 
 changed it so as to make it take a more horizontal direction ? 
 
 A. Striking the lower part would have deflected it perhaps, ant 
 brought it nearer to a horizontal course. 
 
 Q. You stated several wavs in which the wound might have beei^ 
 given by one person to another. If they were clinched together 
 you say, it could be done thus : (over 1 ms shoulder.) But is not tha 
 a way that would much diminish the force of the party striking ? 
 
A. Unless he stood a good deal higher than the shoulder of the 
 other, it would. 
 
 Q. Must he not stand so much higher as that his breast would be 
 higher than the shoulder of the other ? 
 
 A. 1 doubt whether he need be so much higher. 
 
 Q. Must he not then be so much above as to be able to stretch 
 over till hia arm could reach nearly the length of the instrument 
 below the wound ? 
 
 A. Half the length of the instrument would suffice if I was right 
 in saying that it entered at an angle of 45 degrees. 
 
 Q. Must not the parties have been quite close to render this 
 possible : so close that lie could have the length of his arm in¬ 
 creased by his body leaning over ? 
 
 A. Certainly, they must have been close to each other. 
 
 Q. He must then have his arm raised and passed over the shoul¬ 
 der of his adversary ? Could that have been done in the public 
 street before crowds of spectators, and not one see it ? 
 
 A. 1 can conceive nothing but the capes of the coat to prevent 
 its being seen. I think it extraordinary that no one should have per¬ 
 ceived such a movement as that. 
 
 Q. Then if the wound was inflicted in that way, how must the 
 instrument have been withdrawn ? 
 
 A. It must have been over the shoulder or by the side. 
 
 Q. The arm then must have descended again in the same diago¬ 
 nal direction in order to draw it out, and to the extent of its whole 
 ength ? 
 
 A. I cannot say, sir. 
 
 Q. We must take the case as proved by the witnesses. Both were 
 itanding on the pavement opposite each other; Mr. Stoughton 
 icing as tall or taller than Mr. Goodwin, and it is to be determined 
 vhich of the two ways is most probable, the blow or the fall ? 
 
 A. I think it quite improbable, if they stood equally high, that 
 he wound could have been given over the shoulder. 
 
 Q. If they were fronting each other, like men in close conflict, 
 vould it not be more probable that it should have happened by the 
 ailing on the instrument ? 
 
 A. I think it would. 
 
 Van Wyck. If they were upon even ground in close conflict, and 
 le arm of the party receiving the blow raised, would there have 
 een any difficulty then ? 
 
 A. I think not, if they were close to each other. 
 
 Q. Supposing it not over the shoulder, and the two parties mere- 
 r struggling, do you see any real difficulty ? 
 
 A. If the back of one was bent down 1 should not. 
 
 Q. In a common and ordinary scuffle, would there not be a va r 
 ety of situations where it could be done ? 
 
 A x No doubt: in such scuffles, men foil into almost all possible 
 tuations. 
 
 Q. If so. might not this blow have been given and not seen ? 
 
 
60 
 
 A. I think the dagger would be seen, unless the capes of the coat 
 prevented it. 
 
 Emmet. It is now mentioned that the wound might be given under 
 the arm ; if so, and it struck against the lower part of the ninth rib, 
 would it not glance and take a more horizontal direction ? 
 
 A. That is the way it would be. 
 
 Emmet. Though the cape might hide the point, could it also 
 have hid the hand ? 
 
 A. It could not well hide the.hand. 
 
 Emmet. Would not all the spectators then have seen the hand, 
 since the whole could not have been concealed under the cape ? 
 
 The Mayor now observed, that when physicians were called, it 
 was on professional questions ; that the knowledge of a physician 
 was not at all preferable to that of any other man in answering the 
 inquiries now made ; and appealed to Mr. Emmet himself, whether 
 the jury were not as good judges how blows could be given, as the 
 most learned physicians, who are only experts in their own science. 
 
 Emmet. They are, however, used to judge of wounds, and their 
 direction and effects. 
 
 Van Wyck. Would not a fall have the same effect as to changing 
 the direction ? 
 
 A. 1 think so. 
 
 Emmet. That calls for another question. If the wound was by the 
 freight of the body falling, would it not equally have changed the 
 direction ? 
 
 A. If he had fallen, I think the point of the instrument woulc 
 have penetrated the breastbone, where it appears it stopped. 
 
 The Mayor. You mean, that a body moving with velocity, is noi 
 so easily deHected from its course ? 
 
 Witness explained, that it would if it had velocity, more easily 
 split the rib, and more distinctly follow its course. 
 
 Emmet. If the person fell upon it, would it not be more likely t< 
 break the rib and pursue its direction ? 
 
 No answer. 
 
 Fifth Witness for the Prosecution—William Weir. 
 
 I was coming up from the customhouse, after three o’clock, op 
 posite Courtlandt-street. on the Maiden-lane side ; I saw two gen 
 tlemen scuffling in the street, about the centre of Courtlandt-street 
 I staid ten or fifteen seconds, and saw them closed ; and Mr. Good 
 win repeating several blows on the head of Mr. Stoughton, upoi 
 which he fell. After he fell, I perceived Mr. Goodwin making se 
 veral blows at him when he was down ; upon which 1 crossed th> 
 street, and by the time l arrived about the head of Courtlandt 
 street, they were both on their feet. I saw a number of peopl 
 about Mr. Stoughton, and very few about Mr. Goodwin. At th 
 same time, I saw Mr. Stoughton make an effort to meet Mr. Good 
 win again ; the people present immediately rushed in betwee 
 them, and 1 went towards Mr. Goodwin. Mr. Goodwin had walke 
 back towards the southwest corner of Courtlandt-street. I turne 
 
61 
 
 round and saw Mr. Stoughton apparently fainting, which drew my 
 attention towards him, and he almost instantly fell ; 1 thought he 
 appeared to be dying. I then turned to Mr. Goodwin and saul, you 
 have lulled the man. At the time 1 saw Mr. Stoughton fall, I saw 
 the dagger part of a swordcane in Mr. Goodwin's hand, ’it was 
 about that time, 1 am not sure whether before or after, that some 
 @ne made the observation that he had killed the man, and he said 
 he did not intend to have drawn that. Shortly after that he held a 
 hat, whether he had taken it olf his head 1 cannot say, but he held 
 it belore him and said, this is not my hat. Jt was, perhaps, a mo¬ 
 ment after, that some one observed it was of no consequence, he 
 had better take it, very soon alter, he went away with another 
 gentleman down Broadway. 
 
 Q. How soon did you observe the swordcar.e in the hands of Mr. 
 Goodwin ? 
 
 A. I observed him at the first strike with something that I took 
 io be a cane, but 1 did not know : I had no idea that it was a 
 swordcane. 
 
 Q. How far in the street did Mr. Stoughton fall ? 
 
 A. Near the centre of the street—clear of the curbstone, and 
 ■ather without the crossing stones, his head towards Broadway. 
 
 Q. Did Mr. Goodwin make any reply to the observation, you 
 tave killed the man ? 
 
 A. 1 heard him say to some one that Stoughton struck him first, 
 was asked before the grand jury how Mr. Goodwin looked when 
 ie said those words. I answered, that I thought he looked sur¬ 
 prised on seeing the dagger. 
 
 Cross-examined by Hoffman. 
 
 Q. I understand you were on the right side of Broadway. Were 
 here any persons between you and them when you first discovered 
 hem ? 
 
 A. None. Mr. Stoughton seemed rather retreating, and Mr. 
 loodwin pressing him, and their arms were flying about. 
 
 Q. What was Mr. Goodwin,, striking Mr. Stoughton with when 
 ou saw them ? 
 
 A. I took it to be a cane. I did not see any thing like a sword. 
 Q. Did not you before say that he had the blade in his hand ? 
 
 A. I said I thought it was a cane he was striking with. 
 
 The Mayor. Where were they at the first ? 
 
 A. Rather on the lower side. At the curb Mr. Stoughton fell 
 ither more towards the upper or northern side. 
 
 Q. Are you sure you saw him strike him when he was down ? 
 
 A. I am. 
 
 Q. Are you as sure of that as of any thing you have testified to ? 
 A. I am. 
 
 Q. Did you see any blows behind his head ? 
 
 A. I thought he struck him upon his head. 
 
 Q. Were there not many persons near them ? 
 
 A. There were some nigh, and at the time I saw him strike him. 
 
\ 
 
 &2 
 
 a great many ran across the street. When I got there they were 
 both on their feet. 
 
 Q. Did you see Mr. Clark and Mr. Cambreleng there ? 
 
 A. 1 did not see Mr. Clark—l saw Mr. Cambreleng. 
 
 Q. Was you standing near Mr. Cambreleng at this time ? 
 
 A. 1 did not see him for-some little time. The first time I saw 
 him, he was standing on the curbstone at the corner of Courtlandt- 
 street. 
 
 Q. Did you assist in carrying Mr. Stoughton ? 
 
 A. I did- 
 
 Q. Did much confusion arise ? 
 
 A. A great deal. 
 
 Q. Who was in company with you when you went up Broad 
 
 way ? 
 
 A. Mr. Haycock, of the customhouse, and Mr. Ball. 
 
 Q. How much time was consumed in the whole of what yoi 
 saw ? 
 
 A. 1 cannot positively say. 
 
 Q. Have you said, on a former occasion, that the whole did no 
 exceed thirty seconds ? 
 
 A. 1 think not more 
 
 And during that time you crossed over from the east to thi 
 west side of Broadway ? 
 
 Q. By a Juror. Did you see the sheath fly out of his hand ? 
 
 A. No. 1 thought it was nothing but a cane, till I saw the dagge 
 afterwards in Mr. Goodwin’s hand. 
 
 Q. By a Juror. Was Mr. Goodwin all the time on his feet ? 
 
 A. He was. 
 
 Sixth Witness for the Prosecution—William Haycock. 
 
 Witness. I saw the affray. I was passing up Broadway at tlire 
 o'clock, on the right side, near the corner of Maiden-lane, 
 heard somebody call out, a fight. I looked over and saw two gen 
 tlemen fighting, and making at one another. One had a cane, an 
 the other w'as apparently using his arms. After two or three blow 
 had passed with the cane and the arms, one of the gentlemen fel 
 About a second afterwards I saw Mr. Goodwin jump along side < 
 him and strike him several blows with the head of the cane—thre 
 or four blows—he had a white glove. 1 saw nothing but the hat 
 die of the cane. He struck him several blows when he was dowr 
 f ran over, and Mr. Stoughton was raised up by one or two portei 
 and other people. There was a crowd collected. Mr. Goodwi 
 put his head in and looked over my shoulder at Mr. Stoughtoi 
 They looked at each other. Mr. Goodwin looked at him, app; 
 rentl v with the intention of commencing the battle again ; and som I 
 person observed that he had done enough, and that he had betft 
 be off. Mr. Stoughton, immediately after that, fell; and it w; 
 observed by some one that he had a fit. I then assisted, with son 
 others, to raise him out of the street, and he was brought on tf 
 sidewalk. He never spoke at all after he was raised up. I w 
 
63 
 
 With him from the time he was raised, after his first fall, till near 
 the moment of his death. I never saw the swordcane in Mr. Good¬ 
 win’s hand after he had been raised up the first time. But some 
 person called out, here is a dagger found, and it was held up (I 
 believe) by Mr. Weed : and somebody' said, the man has been stab¬ 
 bed. Mr. Stoughton was then removed, and was lying on the plat¬ 
 form in front of Mr. Weed’s store. When he was carried into the 
 ’tore, some one (I think Mr. Clark) asked me if I did not see some 
 hood. This was the next store to the corner of Courtlandt-street 
 —I believe it was at Mr. Van Antwerp’s store. I there assisted 
 n taking off his clothes and opening his shirt neck. I undid one 
 if his braces, and lowering his pantaloons, observed some blood 
 There came several doctors in : Doctors Cooper, Mott, Perkins 
 
 nd Dr. Nelson was the last. The wound was verv small 
 
 •• j ‘ 
 
 Cross-examined, by Hoffman. 
 
 Were you no nearer than the opposite side of the street when 
 le blows were given ? 
 
 A. 1 ran over upon seeing the blows. 
 
 Q. Did you see Mr. Clark then ? 
 
 Jl. 1 saw a quaker gentleman whom I suppose to be Mr. Clark 
 Q. When you first saw this gentleman, had not Mr. Stoughton a 
 jld of Mr. Goodwin by the collar ? 
 
 f - l^ ould not tel1 5 tlie arms both appeared to be in motion. 
 H- When did you first see the dagger ? 
 
 A. I had a very transient view of it at any time. When it was 
 ;;ld up by Mr. Weed, 1 supposed that he had found it on tie ground 
 car the spot. 
 
 Q- Was Mr. Goodwin gone before you saw the dagger ?- 
 A. I do not know when he went. 
 
 Q. Was the body lying on the stoop when you saw it ? 
 
 A. 1 believe not 1 think not: it was when he was on the nave- 
 ijint. 1 
 
 Mayor. Do you think, when you saw the dagger, the body was 
 c the sidewalk ? 
 
 No answer. 
 
 By one of the Aldermen. Where did he fall ? 
 
 A. Near the gutter, 1 think ; three or four feet from the lower 
 3 e of Courtlandt-street. 
 
 Seventh Witness for the Prosecution—Leonard Baker. 
 
 Witness was standing on the stoop of the stage office, between six 
 ail seven yards from where the affray happened—was looking di¬ 
 rt tij into Broadway—saw two gentlemen meet : one with a blue 
 Cat, the other with a light drab. They closed immediately—the 
 mi with the blue coat struck the one with the light coat. It was 
 v<y near the south corner—some blows ensued, and very soon J 
 the man in blue fall on his back, in Broadway. 
 
 !• What took place after that ? 
 
 ' 1 next 1 saw Mr. Goodwin seemed to be standing 
 
 
64 
 
 \ 
 
 over Mr. Stoughton, who was down on the ground, and Mr. Clark, 
 was holding him with his arms round him. I next saw Mr. Good¬ 
 win on the sidewalk ; he had something in his hand like a sword- 
 cane—he threw it down—some gentleman put a hat upon his head, 
 and he walked away. He was much surprised, apparently, at the 
 dagger, as it’ he did not know what he had in his hand. 
 
 The Mayor. Did you see him strike Mr. Stoughton when be was 
 down ? 
 
 A. I thought he was slapping him in the face—I did not see any 
 cane at all. 
 
 Cross-examined by Hoffman. 
 
 Q. Was it merely with his open hand that he struck? 
 
 A. It appeared so. I saw no cane at that time. I will not be 
 sure whether he threw it down, or some person tflok it out of hi* 
 band. I did not see the cane in his hand at any time before Mr 
 Stoughton fell. 
 
 Q. Were there not blows with the fists between these gentlemen 
 
 A. 1 thought so. 
 
 Q. Did you see what took place on the flagstones or in th< 
 street ? 
 
 A. They met on the walk, and when Mr. Stoughton fell, it wa 
 with his head towards Maiden-lane, and his feet two or three fee 
 from the curbstone. 
 
 Q. Did you hear Mr. Goodwin say these words : “ this is not in 
 hat ?” 
 
 A. I did not hear him say one word. 
 
 Q. Did he go away very hastily. or how did he appear ? 
 
 A. He seemed in a very great passion. 
 
 Q. When you first saw him, had he his hat on ? 
 
 A. He had not. 
 
 Q. by Griffin. When you saw him throw away the dagger, did h 
 then seem in a violent passion ? 
 
 A. He did. 
 
 The .Mayor. Did I understand you that you never saw the dagger c 
 cane until after Mr. Stoughton had fainted ? 
 
 A. It was so, sir ; I neither saw the cane nor the dagger. 
 
 Eighth Witness for the Prosecution—Alexander J. M ‘ Williams. ' 
 
 Witness being desired by Air. Van Wyck, as the other witness! 
 had been, to state what he knew, said : On the 31st of last Decembt 
 I was corning up Broadway, and saw two gentlemen fighting; 
 was on Maiden-lane side. By the lime 1 came to Maiden-lane, 
 saw Mr. Stoughton down, and Mr. Goodwin over him as if strikii 
 him, or going to strike him. This was near the centre of the he; 
 of Courtlandt-street. I went over then and saw Mr. Stougith 
 lying in the street, and got hold of him and asked him to gel up. f 
 did not speak, and with the assistance of another person, we raise 
 him up—Mr. Goodwin was on the sidewalk when he got on 1 
 feet; he stood about six minutes alone—he seemed as if he wish 
 
 
65 
 
 to speak.but could not. Mr. Goodwin was looking at him and he al 
 Mr. Goodwin. I saw neither the sword nor the sheath ; he rested 
 his head upon me about fourteen seconds, and as he was falling, I 
 with some other person recovered him ; at that time Mr. Goodwin 
 was not doing any thing, but after Mr, Stoughton fainted, he went 
 into the corner store. 
 
 Q. Did you hear Mr. Goodwin say any thing ? 
 
 A. I did not; 1 never heard him say any thing at any time. I did 
 not see him get a hat. They carried Mr. Stoughton to the second 
 stoop from the corner : and 1 afterwards saw Mr. Goodwin going 
 quite deliberately down Broadway with another gentleman, while 
 the deceased was on the stoop. 
 
 Cross-examined by Hoffman. 
 
 Q. Did you see any cane or stick at any time when they w§re 
 fighting ? 
 
 A. No, sir; it appeared to be with their fists. When I crossed, 
 :he prisoner was in the act of striking, or just going to strike, with 
 ^iis fist. 
 
 Q. Was his fist clenched, or was it with the flat hand ? 
 
 A , I think it w’as with the flat hand. 
 
 Q. Did you see him give any blows ? 
 
 A. No. I saw him attempting it. He had neither cane, nor stick, 
 or any thing of that kind in his hand at that time. 1 never saw 
 word, stick, or cane, until after Mr. Stoughton was raised the se- 
 ond time, nor then, till after he fainted. When they looked at each 
 ther after we had raised him the first time, there was a space of 
 bout five feet between them : Mr. Goodwin was on the sidewalk, 
 nd Mr. Stoughton in the street. 
 
 Q. Did you distinctly see Mr. Goodwin ? 
 
 A. I saw him, certainly. 
 
 Q, Had he any thing in his hand then, as you recollect? 
 
 A. I cannot say, whether he had any thing at that time ; it was 
 fter Mr. Stoughton fainted that 1 saw the thing in Mr. Goodwin’s 
 and. 
 
 Q. After you had raised up Mr. Stoughton the first time, were 
 ley near enough to give each other blow's ? 
 
 A. They were near enough to reach at each other ; but there 
 ere several persons between them, and no blows passed. 
 
 Q. Did you see Mr. Clark, the quaker gentleman ? 
 
 A , I do not know Mr. Clark, but I believe it was a quaker gen~ 
 jman that helped me to raise him up. 
 
 Q. Did Mr. Stoughton offer to make any blows after he rose up ? 
 A. O no, sir, he was not able, 
 
 Q, by a Juror. If Mr. Goodwin had any thing in his hand, would 
 mi not have seen it ? 
 
 i A. I think I should have seen it, if he had. 
 
 Q, Did you see Mr, Goodwin go back to the sidewalk ? 
 
 A. I did. 
 
 Juror., Did the deceased speak after the time he was lifted up? 
 
 9 
 
66 
 
 A. He did not. 
 
 It was now 9 o’clock, and the court was adjourned until* 11 next 
 morning. It was ordered that the jurors should be kept by two mar¬ 
 shals and a deputy sheriff; these officers were duly sworn to keep 
 them, &c. and they were taken to the District Court Room, where 
 they were accommodated with supper and beds. 
 
 SECOND DAY.—WEDNESDAY, MARCH 15th. 
 
 At 11 o'clock A. M. the Court met . 
 
 PRESENT AS BEFORE. 
 
 • 
 
 The jury were called over, and all answered to their names. 
 The prisoner being again put to the bar, the jurors on the gene¬ 
 ral panel not empanelled in this cause, were informed, that they 
 had permission to withdraw until the following morning, at the 
 usual hour. 
 
 Ninth Witness for the Prosecution—Thaddeus Phelps. 
 
 On the day of the conflict between Mr. Goodwin and Mr. Stough¬ 
 ton, about three in the afternoon, as I was coming down Broadway, 
 my attention was arrested by a conflict near the southwest corner of 
 Courtlandt-street. When I first saw them, they were opposite 
 King and Mead’s store, the same side where I was passing—the 
 west side. I was between thirty and fifty yards above King and 
 Mead’s. When I arrived on the ground, there were but four or 
 five persons present. AVhen I first saw the parties, there were 
 but three. I am not confident, though under the impression, that 
 I helped Mr. Stoughton up. At all events, I was there at the time 
 of his getting up. After he was placed in an erect posture, he re¬ 
 clined upon the shoulder of a gentleman. Here I wish to correct 
 a part of my testimony before the grand jury and the inquest, where 
 I stated that it was upon the arm of Mr. Clark : but upon seeing Mr. 
 M‘Williams yesterday, I was undeceived, and am now sure it was 
 upon his arm. I had never seen either of those gentlemen before. 
 The first I discovered of Mr. Goodwin was, he was in a stooping pos¬ 
 ture, on the confines of the curbstone, and apparently taking up his 
 hat. He was on the sidewalk, and Mr. Stoughton on the paved 
 way', from five to eight feet off. Mr. Stoughton getting up a mo¬ 
 ment after, and reclining upon Mr. M‘Williams,looked with a greal 
 deal of passion, as I observed, at his opponent, who had turned 
 round, which led me to attach no great importance to any thing 
 that had taken place : for from the manner and attitude of both the 
 parties, my impression was that it was the intention of both to re¬ 
 new the fight, and that Mr. Stoughton was only recovering himsell 
 for the purpose. I stood perhaps about four feet from Mr. Stough¬ 
 ton, with a full view of his countenance, and my attention was alter¬ 
 nately directed to the countenance of both. In this position I re¬ 
 mained till Mr. Stoughton fell, or fainted. The change of his coun¬ 
 tenance was sudden and instantaneous, from life to death. He wai 
 
67 
 
 caught by one or two of the bystanders, when the first impulse of 
 my feelings directed me to Mr. Stoughton's relief. According to 
 my impression, f assisted in carrying his body to Mr. Van Ant¬ 
 werp’s store, the second store, I think, from the corner. We at 
 first thought of taking him into that next the corner. At the time 
 of conveying the body, 1 saw Mr. Goodwin in the crowd. We made 
 all haste, after laying him down, to take off his nfickcloth, and open 
 his clothes, to give him a chance of respiration. I assisted in keep¬ 
 ing the crowd back, to prevent their pressing too much upon him. 
 While we were engaged in getting off his clothes, a person came up 
 to me and asked me to look and see if Mr. Stoughton had not been 
 stabbed. I requested the person near Mr. Stoughton to look, and 
 another person said, 0 no, the wound is in his head. I saw no 
 mark or contusion on the head, only a small scratch a little over the 
 temple. Mr. Stoughton at that time appeared to be in the last ago¬ 
 nies of death, lying on the threshold of the store. Some one came 
 up whom 1 believe to be Mr. Cambreleng, and I said, he is a dead 
 nan. At that moment I perceived Mr. Stoughton to open his eyes, 
 md thought that if a vein was opened, he might get relief. 1 had 
 isked several persons to go for a doctor, but nobody would. I 
 raw Mr. Goodwin with Mr. Cambreleng, who went away. When I 
 eturned with the doctor, Mr. Stoughton was dead. 1 saw a cane 
 vhen my attention was first arrested. It appeared to me that the 
 larties were all contending for it, for I thought there were three in 
 he struggle : but I saw nothing of the cane after my arrival on the 
 round. I afterwards understood that the third person was Mr. 
 'lark. I cannot say I saw Mr. Stoughton fall, and as to Mr. 
 roodwin, he seemed quite composed. Mr. Stoughton seemed to look 
 ttentively at Mr. Goodwin, and Mr. Goodwin at him, but notparti- 
 ularly agitated. Mr. Stoughton never uttered a word, nor Mr. Good¬ 
 in neither. 1 never thought of any wound havingbeen inflicted, nor 
 id I see the cane after the first sight of it, when they were brandish- 
 ig it among them ; and then it appeared to me to be simply a cane 
 p in the air, and some persons striving for it, I paid little attention 
 i it. I am not certain whether Mr. Stoughton had risen at the mo- 
 ent I came, or whether I helped him. I know he had been down, 
 :>d stood after he got up for 30 seconds, or from that to a minute, 
 a his feet. 
 
 Cross-examined by Hoffman. 
 
 Witness said, that when he saw these gentlemen, they appeared 
 1 be in a scuffle—that there were three persons. But he cannot, 
 1pm any subsequent circumstances, say whether Mr. Clark was 
 lie third or not. He had no recollection of seeing Mr. Stoughton 
 11, but he must have fallen, of course, as he approached, for the 
 j rties appeared to be all on their feet when he came up. He saw 
 r blows given after Mr. Stoughton was down, nor after he came 
 v. The situation of the parties was such, that there could not 
 five been any blows, for Mr, Goodwin was not, at any time, within 
 a Or eight feet of Mr. Stoughton. Goodwin was within the curb. 
 
sind Stoughton outside, from five to seven feet. I saw no blow on 
 either side ; but there seemed to be a scramble for the cane. 
 
 Q. Was there any thing to prevent you, as you approached, to 
 see whether Mr. Stoughton was down or not ? 
 
 A. I think not. 1 was the fifth or sixth person that came ; and 
 had as good a view, I think, as any one there. As 1 apprehended 
 they were about renew the fight, 1 turned my eyes upon them 
 alternately. After Mr. Stoughton got upon his feet he never 
 changed his position at all. If there had been blows given when 
 he was down, l should think it very strange that I should not have 
 seen them. 
 
 Q. Did Mr. Goodwin appear to be composed after that ? 
 
 A. He appeared very composed indeed, considering his situ¬ 
 ation. 
 
 Mr. Phelps was about retiring, when the ma 3 r or asked whether 
 he could recollect if the third person was Mr. M'Williams, but he 
 could not, having paid little attention, except to the combatants. 
 
 Tenth Witness for the Prosecution—John H. Ball. 
 
 Witness. I was going up Broadway, w’hen I observed a scuffle be¬ 
 tween Mr. Stoughton and Mr, Goodwin, and immediately crossed 
 over. Mr. Stoughton was then down ; Mr. Goodwin stood on the 
 edge of the curb : I was immediately before him. Mr. Stoughton 
 rose and leaned on a gentleman's shoulder, and after a short time ij 
 fell backwards suddenly. Mr. Goodw in held the sword part of the 
 swordcane, swinging it by the head between his thumb and fingers, 
 the blade dangling down. This was at the time Mr. Stoughton was 
 down the second time. Mr. Goodw in said some words, which I 
 did not exactly hear. I observed the cane while I was on the op¬ 
 posite side of the street. I saw Mr. Goodwin strike at Mr. Stough¬ 
 ton, holding it by the but end. Mr. Goodwin had a large cape coat i 
 on, and Mr. Stoughton also : I saw him strike Mr. Stoughton over J 
 the head, holding it short. 
 
 ■ Q. By Van Wyck. Did you perceive any particular blow, which 
 caused him to fall ? 
 
 A. I did not. I was surprised to find he did fall from the blow, 
 which did not appear to me very violent. I did not observe Mr. 
 Goodwin change the direction of the instrument. I did not ob¬ 
 serve whether he dropped the swordcane, but when Mr. Stough¬ 
 ton was lying down the second time, I saw it swinging in his fingers. 
 
 I was going home in company with Mr. Haycock and Mr. Weir. 
 
 Cross-examined by Air. Hoffman. 
 
 Witness says he does not know Mr. M‘Williams, but that h« 
 thought and is sure he saw Mr. Goodwin strike when Mr. Stough¬ 
 ton was falling the first time. 
 
 Q: Did you see him strike after that fall ? 
 
 A. No. 1 saw him strike when he was falling, but not after. 1 
 crossed with Mr. Weir and Mr. Haycock, and assisted in carrying 
 
 
him into the house. When I came up I saw the prisoner ea 
 the curbstone. The whole did not last longer than five minutes ; 
 I cannot say how long from the first time I saw them, until Mr. 
 Stoughton lay on the ground. It could not be more than four or 
 five minutes, as I walked fast across. 
 
 Juror. When you saw the prisoner strike Mr. Stoughton with the 
 cane, was the sword sheathed or naked ? Had he hold of the cane 
 or the sword ? 
 
 A. I thought it was a cane at that time, and that he held it near 
 the handle, but the large capes prevented me from seeing more. 
 
 Juror. Where did he appear to strike him'when he was falling ? 
 
 A. All the blows appeared to be aimed at the head. 
 
 Eleventh Witness for the Prosecution—Michael M l Gowan. 
 
 Witness. I had been for a long time past an orange seller. I was. 
 standing at the lower corner of Courtlandt-street and Broadways 
 where Mr. Weed lives, when I saw a gentleman coming down 
 facing towards the battery. I stooped to move my oranges and 
 shift them in the basket ; and when I looked up, I saw two gentle¬ 
 men engaged, just on the curbstone, close by me. Mr. Goodwin 
 happened to be next to me, and the other facing me ; and he struck 
 at him with a sword or dagger. I believe it was a dagger with the 
 butt end foremost. I did not se@ the other part of the cane ; he 
 held the blade and struck him on the back of the head with the 
 handle. Mr. Stoughton was going back and he after him, till they 
 came to the middle of Courtlandt-street. Shortly after that Mr. 
 Stoughton fell before him, and Mr. Goodwin came up to him and 
 struck him in the same manner after he fell, and when he was on 
 the ground. 
 
 Q. Had he still the dagger in his hand, and did he still strike him 
 with that ? 
 
 A. It appeared to me to be so. While Mr. Stoughton was up, 
 he was making resistance, with his hands up to save his head. I 
 cannot say whether Mr. Goodwin had hold of him. I did not ob¬ 
 serve him strike him anywhere but on the head, as long as he was 
 up. He retreated four or five yards before he fell. 1 did not see 
 Mr. Stoughton give any blows as he was retreating. 
 
 Q. Did you see Mr. Goodwin immediately after Mr. Stoughton 
 fell ? 
 
 A. There came a gentleman forward in quaker’s apparel, and 
 took hold of Mr. Goodwin; I cannot say whether the swordcane 
 was still in his hand. After Mr. Stoughton was down, Mr. Goodwin 
 went back on the curbstone—a moment or two after. At the time 
 he struck him, he was on the pavement. Mr. Stoughton fell on his 
 rump ; I had no thought of his falling when he did fall. They were 
 so near hand, that it appeared to me he could not knock him down. 
 Mr. Stoughton’s heels flew up, and he went on his back ; I saw him 
 as he was helped up. Whether he was able to raise himself I da 
 not know, nor do I know who helped him. I remarked six or seven 
 men and boys wh© came from the opposite side of Broadway and 
 
70 
 
 Courtlandt-street: I do not know exactly where they came from. 
 The gentlemen staid till they saw him struck, and then came to his 
 assistance. 
 
 Cross-examined by Hoffman. 
 
 Witness did not see Mr. Stoughton strike Mr. Goodwin at all at 
 any time—both their hats fell off. The quaker gentleman took 
 hold of Mr. Goodwin ; the people came up, and I don’t know whe¬ 
 ther Mr. Clark helped Mr. Stoughton up or not. The people that 
 were coming along stopped at both sides. At the time of the first 
 fall I did not observe many people. 
 
 Q. Why did you not go to his assistance, seeing him so ill used ? 
 
 A. I would have gone to the gentleman’s assistance, but because 
 of the basket 1 had in my care, and that 1 thought the others would 
 go, and I was surprised they did not interfere. 
 
 Twelfth Witness for the Prosecution — Dr. Charles L. H. Schifffelin. 
 
 Witness being asked, stated that he was a physician and surgeon, 
 and proceeded : 1 was going down Broadway on the 21st of De¬ 
 cember, about half past three ; Mr. Vanderbilt (the coroner) asked 
 me to stay till he formed his jury ; 1 was not willing to take the re¬ 
 sponsibility. and I came up to the Hall and found Doctor Mott, who 
 went down to the store, and after fie had got a case of instruments, 
 we examined the body. The external wound was about an inch in 
 length, about the ninth and tenth ribs ; its direction was inward, 
 upward, and forward. There was a rib wounded, 1 think the tenth ; 
 a very small part of it was fractured off—a very small splinter. 
 There was a dent in the lower part of the breastbone. The wound 
 entered about two inches from the backbone, and went in about nine 
 or ten inches. I am not certain as to which rib was wounded, I ra¬ 
 ther think it was the tenth rib. I was on the right side of the body, 
 and I think, when I introduced my linger, it was the lower rib. 
 
 Here the testimony of the witness ended, and some conversation 
 took place between the members of the court, when the mayor 
 spoke to the jury, observing to them, that from the great length of 
 the examinations and variety of testimony, and number of witnesses, 
 it would be impossible to get through the trial without further ad¬ 
 journments ; and it wmuld be difficult to keep so good order among 
 so great a crowd, if they continued sitting through the night. He 
 thought, however, that the jury were, and ought to be consulted, 
 and the court were willing to yield to their convenience. If, how¬ 
 ever, it was no greater hardship to them to continue sitting till day¬ 
 light, and then to adjourn, it would give the court a better oppor¬ 
 tunity of considering the mass of testimony offered, and assisting the 
 jury in their enquiries. 
 
 To this the jurors all readily assented ; and the mayor then men¬ 
 tioned that an attempt had been made to get a letter in to one of the 
 jurors, which was an act of great impropriety. The sheriff stated 
 the difficulty if the jury were at liberty to prevent communications 
 
71 
 
 with them. The mayor observed, that he was willing to trust 
 much to the discretion of the jury, for we were all equally inte¬ 
 rested in the administration of justice, and an impartial trial in every 
 case. 
 
 One ofthe jurors observed, that it was the particular wish ofthe 
 ury, that the strictest care should be taken, and guard kept. 
 
 Thirteenth Witness for the Prosecution — Dr. John JVelson. 
 Witness. On the day when Mr. Stoughton received the wound, 
 was called on by Mr. Phelps, to go with him to a person that had 
 eceived a wound. I saw Mr. Stoughton lying in a store, and my 
 rst impression on seeing him was, that he was mortally wounded ; 
 nd I.at once expressed that opinion to Mr. Phelps, for the counte- 
 ance of the deceased rvas fully indicative of the fact; and he in- 
 eed died a few moments afterwards. It was a w-ound about half 
 n inch in length, given by some penetrating instrument. 
 
 Van Wyclc. Suppose a wound between the ninth and tenth ribs, and 
 lat the instrument should take the rib so as to penetrate it a little, 
 id afterwards to pass through the heart and reach the breastbone, 
 )uld all that be done by the strength of an ordinary man ? 
 
 A. I think a man of ordinary strength, in a paroxysm of rage, 
 hich adds much to muscular force, could with such an instrument 
 ■ that penetrate to the breastbone. 
 
 Q. Would it vary your opinion if the instrument touched the up- 
 ]:r side ot the ninth, or the lower side of the tenth rib ? 
 
 A. It would not. I think a man of ordinary strength could give 
 ;ch a blow. 
 
 Q. If the instrument was lodged in the body, in that direction, 
 f d to that depth, would it be likely to fall out of itself? 
 
 A. If it was not fixed in the breastbone it might. The adhesion 
 t the skin would oppose the principal impediment to its falling out, 
 btthe head of the instrument I perceive is heavy. There is very 
 lile between the rib and the breastbone to prevent it. 
 
 5- Would not the heart retain it ? 
 
 d. The heart is a fleshy substance, and might cause some re- 
 si ance, but I did not make any particular observation : my hurry was 
 Uget away ; the man being dead, I could be of no further use ; I 
 s 'j must die in a few minutes. My first inquiry was about the 
 P' son who killed him. 
 
 * 
 
 Cross-examined by Emmet. 
 
 left him alive. I did not stay more than two or three minutes, 
 i appeared to breathe with very great difficulty, like a man who 
 ia both the lobes of the lungs perforated. When Mr. Phelps 
 
 ; ae to my office, I went immediately with him, and found him in 
 h state. 
 
 mmet. When you talk of a man in a passion acquiring strength 
 o npel a weapon, does not that strength consist in the increased 
 e city ? 
 
 m I 
 
72 
 
 A. The velocity increases the force. 
 
 Q. In order to give that force, must not the velocity be first ac 
 quired, and to acquire that, must there not be some space ? 
 
 A. Undoubtedly. 
 
 Q. Then there must have been room for that projectile force t< 
 be acquired, before the point met the rib ? and if there had beei 
 no reach to acquire momentum, would not the rib then resist ; 
 mere push, or would it readily be splintered by that action ? 
 
 Hie Mayor. Do we understand Mr. Emmet’s question to be this 
 Suppose the instrument met the rib before it had acquired motior 
 whether it would have so much force ? 
 
 Witness. I understand the question to be, whether if the first irr 
 pression is without any range, but merely applied as a push, 
 would splinter the bone as readily ? 1 think, in that case, the fore 
 would be much less effective. 
 
 Emmet. Notwithstanding the impediment which the skin an 
 the heart might oppose to its disengaging itself, would not th 
 wedge form of it be an impelling power to incline it to descend, pai 
 ticularly when lubricated by the juices of the body and the blooi 
 and influenced by the weight of this handle ? 
 
 A. I think its form would aid in throwing it out. 
 
 Emmet. The position given to the parties is opposite one to th 
 other. Would it not be hard, face to face—would it not be vei 
 difficult, if held thus, (with the blade downwards) to inflict th 
 wound ? 
 
 A. If it was held that way, I think it would he nearly impossibl 
 
 Q. How would you apply it near the backbone, and force it uj 
 
 A. It was not near the backbone. 
 
 Mr*Fan Wyck here stood up, and the doctor taking the weapi 
 for the purpose of illustrating. 
 
 Witness. That position given, and the direction of the wound. . 
 do not think it could reach the breastbone. 
 
 Q. Is there any way, in standing face to face, that it could 
 done ? * I 
 
 A. If the instrument was held this way, (in the manner of 
 sword) it would be very possible. 
 
 Q. Would there not have been a want of strength from the ws 
 of room to draw the blow, as the arm would be at its lull extent b 
 fore the point could enter the body? 
 
 A. I think it might be done holding it in that way, if there w 
 strength enough. 
 
 Q. By the Mayor. Suppose the back of the adverse party w 
 exposed by stooping, would it not facilitate that direction ? 
 
 A. If the instrument was held this w r ay, (downwards, the butt nr 
 the thumb) it would, no doubt, be more easy. 
 
 Q. If the wound was given when a person was falling back wan 
 instead of forwards', would not the direction be altogether diflerer 
 Would it touch the breastbone ? 
 
 A. It would be different. 
 
73 
 
 Thirteenth Witness for the Prosecution—Doctor Francis Eloy Berge , 
 
 Van Wyck. Suppose a wound given with this instrument, com¬ 
 mencing between the ninth and tenth rib, rather towards the back, 
 and hen through the apex of the heart till it touched the breast¬ 
 bone—could it have been done, do you suppose, by the force of 
 an ordinary man ? 
 
 A. I think it is possible. 
 
 Cr^ss-examined by Emmet . 
 
 Q. Would not that depend upon the position of the parties ? 
 
 A. Yes, sir, much would depend upon the position of the parties, 
 
 Q. If they were directly opposite to each other ? 
 
 The Mayor. I now submit my opinion to the good sense of Mr. 
 Emmet. A physician is very properly called in a court of justice 
 to tell the nature and direction of a wound, and its consequences. 
 'But to enquire of him how muscular strength may be applied, how 
 men can use their limbs, and touching the position of parties in a 
 fight, is what, I think, the jury will not pay much attention to, being 
 equally capable of judging themselves. 
 
 Emmet. The question touching muscular strength was first pufc 
 by the other side, and therefore I continued the inquiry. I feel, 
 the weight of what the court has said, and bow with respect: but 
 ;he direct examination has been at least as improper as the cross. 
 
 The Mayor. You will find that in the case of Selfridge this very 
 question frequently came up, and it was decided to be the province 
 of the jury, and that it did not belong to the examination of doc¬ 
 tors. 
 
 Emmet. Let no conclusion then be drawn from my not asking 
 such questions, and I am content. 
 
 The Mayor. It would be very unreasonable that th^re should, for 
 ill such matters of argumentation are subjects of reasoning for 
 he counsel to remark upon, but not for witnesses to argue, who 
 ire called merely as experts. [See Self ridge's Trial, p. 59, 60, 61.) 
 
 Tere the Prosecutor rested his case, and Mr. Hoffman opened the case 
 of the Prisoner, as follows : 
 
 rlffman. —May it please the Court. 
 
 I do not know, gentlemen of the jury, that ever I was concerned 
 in a cause of deeper interest than the present. With every mem- 
 ter of this community, with the prisoner himself, 1 do most sin- 
 erely lament the occasion that brings me here. Mr. Stoughton, a 
 oung gentleman of great professional promise, who had every rea- 
 on to count on length of prosperous days, is unfortunately cut off in 
 he flower of his age. by an untimely death. A father deprived of a 
 hild on whom he fondly floated ; and a mother of a son, in whom 
 /ere placed her dearest hopes ! Can a case be imagined more cal- 
 ulated to awaken our sympathy ? Turn to the situation of the pri- 
 oner: a man in the same grade of society with the deceased ; 
 
 10 
 
son equally dear to a parent, a brother to a sister. Like the 
 mother of the unfortunate Stoughton, so is the mother of the unfor¬ 
 tunate prisoner ; so is that sister, who clings to him with the mos; 
 dev oted affection ; and so are the feelings of that brother, whose life 
 has been passed in the service of his country, and who now anxious¬ 
 ly watches the progress of this trial. Perhaps a trial thus deeply 
 interesting to the public, to the friends and relatives of the one, 
 and of the other party, has never been brought before a jury of oui 
 country, I approach this case with the m^re diffidence, because 
 we cannot be ignorant of the extreme prejudices which have beet 
 iucited. God forbid I should charge them to the affectionate paren 
 of Mr. Stoughton. But rumours, newspapers, even pamphlets have 
 all been used and busy to inflame public sentiment, and to create ; 
 premature judgment against my unfortunate client; thus prostrating 
 the first principle of our law, by making the presumption of guilt t( 
 precede the investigation of a judicial tribunal. Is there a mai 
 who hears me, and who did not yield his judgment captive to the firs 
 rumours, and believe that a wilful assassination had been commit 
 ted ? and has not the testimony even for the prosecution silencec 
 such rumours forever ? The conduct of the prisoner, as well be 
 fore as immediately after the conflict, evinces his ignorance even o 
 the existence of a wound ; and you will find in his subsequent cod 
 duct, confirmation strong of his entire innocence. 
 
 Indignant at the charge, he willingly surrenders himself to thi< 
 judgment of the law, for he would rather suffer death, than liv<l 
 under the aspersion of being a deliberate murderer or an assassin 
 He felt the full force of his own misfortune, and wept in his hear 
 at the fatal catastrophe. He knew his own innocence, and he a 
 once decided, to encounter public prejudice at the hazard of cha 
 racier, imprisonment, nay, life itself. 
 
 Gentlemen, you are not only to ascertain facts, but it is your dot; 
 to understand the principles of criminal law applicable to thi 
 transaction ; for, in every criminal case, the jury are empbaticall 
 judges of law as well as of fact. It is the duty of the court to ad 
 vise you as to law, but the decision must still be your own, accord 
 ing to your best judgments and the dictates of your own consciences 
 
 Hereafter, 1 shall offer to your consideration the law on the sub 
 ject, but I first call your attention to a brief review of the testiinon 
 already given for the prosecution. It must have created some sur 
 prise and much doubt in your minds, to perceive that all the wit 
 nesses materially differ in their relation ; and yet, upon proof s< 
 contradictory, you are to find the deceased came by his death in- thi 
 manner charged in the indictment; that is to say, that Mr. Goodxi 
 did slab, penetrate , and thrust the dagger, which he held in his hanc 
 into the body of Mr. Stoughton, and so did kill him. Admitting a 
 that has been testified, can you pronounce that Mr. Stoughton cam 
 to bis death in the manner charged ? If not, the prisoner is entitle 
 to acquittal. Suppose the sword became entangled in the clothes ( 
 the deceased, or was dropped by the prisoner, and in either case th; 
 Mr. Stoughton fell upon it, the indictment is unsupported. 1 sail 
 
ihat I should call your attention to a brief review of" the testimony, 
 because it will assist you the better to understand and apply the 
 principles of law, as 1 shall hereafter urge them. 
 
 The first witness was Mr. Clark, a gentleman of strict probity, 
 and careful and anxious to be accurate in his testimony. He was 
 near the parties, and states, that Jie distinctly saw the blow which 
 occasioned the fall: and no other witnesses except two, who were 
 at a distance on the opposite side of Broadway, have pretended to 
 have seen that blow. Mr. Clark states, that it was the last blow 
 previous to the fainting of Mr. Stoughton, and that if. was given 
 with the right hand, without any weapon being then in it; and that 
 10 other blow was given by Mr. Goodwin while the deceased was 
 an the ground, after he rose, nor when he fainted. Unless this 
 ;>ositiv«Mestimony is rejected, we must believe that this blow was 
 >iven after the sword was dropped by Mr. Goodwin. It is impos- 
 lible that the blow could be given, and the sword thrust at one and 
 he same instant of time. Mr. Clark was nearer than any other 
 witness, and had the best opportunity to see all the circumstances. 
 
 When the gentlemen on the opposite side of Broadway spoke of 
 he blows indicted upon Mr. Stoughton while on the ground, they 
 vere certainly mistaken. Mr. Clark was near him—saw him fall— 
 dvanced directly towards him—saw no weapon used, nor blows 
 ;iven when he was down. It is owing to that error and mistake so 
 aturally to be expected in human testimony, on occasions like the 
 ■resent, and in moments of great surprise, that we must impute the 
 ontradiction in the statement of the witnesses. I admit that two 
 f the customhouse clerks say, they saw the prisoner strike the 
 eceased while tying on the ground, several times, with the handle 
 f the swordcane. Mr. Ball, another witness, thinks it was only 
 nth the hand : but if we believe Mr. Clark, not only was no blow 
 iven while the deceased was on the pavement, but none could 
 ave been given with the cane, as is testified by two witnesses, be* 
 ause at that time Mr. Goodwin had not a cane in his hand. The 
 :stimony of Mr. Clark too, in every essential point, is corro- 
 orated by that of Mr. Weed. He was standing on the platform of 
 is store door; saw the cane pointed towards Mr. Stoughton ; saw 
 lr. Goodwin proceeding down, and Mr. Stoughton up Broadway, 
 fter passing each other at some distance, saw Mr. Stoughton re- 
 irn, and the first blow given by him was returned by the prisoner 
 ith the small end of his cane : the scabbard flew off, and the wit- 
 ess thinks that blow knocked Mr. Stoughton down. The witness 
 this is mistaken ; and it will be recollected, that he stated that a 
 1 owd collected, and that persons were between him and the de¬ 
 based ; and that he saw no other blows, although near half a mi- 
 nte elapsed before Mr. Stoughton fell. Now if the cane had 
 ] locked him down, he would have fallen instantly- Mr. Clark 
 tys the blow which felled Mr. Stoughton was given by the hand ; 
 
 < course there must have been intermediate blows between the 
 s’oke with the cane spoken of by Mr. Weed, and the blow with 
 
76 
 
 the hand testified to by Mr. Clark; and all the other witnesses de¬ 
 clare that several and mutual blows passed between the parties. 
 
 But (tutting the testimony of Mr. Clark and Mr. Weed out of the 
 question, how stands the testimony of the other witnesses ? Mr. 
 Haycock saw a scuffle, two gentlemen fighting, mutual blows pass¬ 
 ing, and whilst Mr. Stoughton was down Mr. Goodwin struck him 
 several times on the head with the but end of the cane. This is a 
 palpable error. Besides the positive testimony, the intrinsic evi¬ 
 dence of the case proves it so. The prisoner could not strike 
 such blows with so great force, nor could any human being receive 
 such blows with the but end of that cane, on the face or on the 
 head, and yet no mark or contusion appear. And we find that 
 when the deceased was examined, the effect of such blows was not 
 discovered, and no bruises or contusions appeared on th^ face 01 
 on the head. In the very nature of things, therefore, it is impos¬ 
 sible that such blows could have been given. 
 
 The witnesses then who have thus testified, are mistaken. Thej 
 do not mean to deceive or misrepresent ; but they were under ; 
 delusion of mind, occasioned by the agitation of the moment, am 
 their imagination has given body and shape to circumstances whicl 
 never existed, but which they honestly believe to have taken place 
 And so it will always be in affrays like the present, and in trials o 
 this nature. Errors, mistakes, and contradictions, will ever occur 
 
 Look at the case of Mr. Selfridge—the most remarkable one ii 
 the annals of our criminal jurisprudence. 
 
 He went armed, at noonday, in the public streets. He used 
 pistol to kill Mr. Austin, who had assaulted him, or was ap 
 proaching so to do—yet that transaction, thus exposed to publi 
 view, was stated by the witnesses in the most extraordinary man 
 ner. Conjecture usurped the place of fact; and, amid the conflic 
 of oaths, the honest juror was left without a resting place for hi 
 judgment. Men of as high honour as any in the town of Bostoi 
 swear positively to circumstances in direct contradiction to on 
 another. In such a chaos of proof, there was no testimony on tl 
 accuracy of which the jury would safely repose their conscience? 
 they were left to the internal evidence of the transaction to fir 
 out the truth. The jury in that case knew, that a public proseci 
 tor must fasten the charge upon the accused, by positive and ce 
 tain proof; and they wisely and justly concluded, that it was r 
 reason, because Austin had lost his life, that they should, of nece, 
 sity, deprive Selfridge of his liberty and character. Could v 
 indeed, in this case, restore the dead to life, by inflicting punisl 
 rnent on the survivor, there would be a motive for convictio 
 Would to God your verdict of guilty would create this miracle 
 Then would the unfortunate prisoner submit without a mnrmui 
 nay, he would rejoice at his own condition, and willingly suffer t! 
 punishment, how'ever severe, inflicted by the laws of liis count: 
 for the crime of manslaughter. 
 
77 
 
 J assume then the fact, and with confidence, that, at the time of 
 the blow which felled the deceased, the prisoner had no weapon 
 in his hand : and it is not pretended, nor can it be, that before Mr. 
 Stoughton thus fell, he received the mortal wound : and it is cer¬ 
 tain, that after he rose, and before he sunk to rise no more, the 
 distance between the deceased and the prisoner rendered it impos¬ 
 sible for the latter to give the wound, even if the sword had been 
 in his hand. 
 
 To proceed—Mr. Weed says, after Mr. Stoughton fell, he saw 
 both parts of the cane on the ground ; and after Mr. Stoughton had 
 fainted, the witness saw the blade part in the hands of the prisoner. 
 And Mr. Clark establishes, as I have before shown, that it was not 
 in the hand of the prisoner when the blow was given, nor until 
 after the fainting. 
 
 How came he in possession of it after the contest ? The answer 
 is obvious—it was picked up by some bystander and handed to him. 
 He looks at it with surprise, but manifests no symptoms of con¬ 
 sciousness that he had, in any manner, used it. If he had felt any 
 self-accusation of having used it, he would have retreated without 
 receiving it, or have concealed from every accusing eye, its size, its 
 shape, and its deadly power. But he seeks no concealment—lie 
 leaves it in the store of Mr. Weed, or delivers it to some person 
 near him ; and its very production in this court, proceeding from 
 his own voluntary act, is the strongest proof of his own ignorance 
 of the cause of this fatal accident, and disproves every presumption 
 of design or of intentional guilt. 
 
 After the delivery of the dagger, what was his conduct? Does 
 1 he fly precipitately ? No—He deliberately seeks for his hat, which 
 had been knocked off in the scuffle, as a man unconscious of having 
 mortally wounded a fellow-being, and calmly walks off with his 
 friend. Firm and confiding in the innocence of hisowm heart, and 
 even ignorant of any serious injury sustained by Mr. Stoughton, he 
 leaves behind him this very instrument of death, as testimony 
 against him on this day’s trial. Let us proceed a little farther into 
 the testimony i The more witnesses the prosecutor produces, the 
 greater will appear the contradictions in the evidence. The orange- 
 man agrees with Mr. Clark, as to the fall near the curbstone, but 
 contradicts him in stating, that blows were struck when the de¬ 
 ceased was on the ground. But the most palpable and manifest 
 contradiction is, that he states all the blows to have been on the 
 part of Mr. Goodwin, and not a single one by Mr. Stoughton—that 
 he did not offer to strike, and was the whole time retreating and 
 warding off the blows. He stands alone. Every other witness 
 testifies to the contrary. The hat of Mr. Goodwin was knocked 
 off by a blow from the deceased, and a respectable witness has 
 sworn, that it was difficult to say who had the best of the battle—Is 
 he not correct ? 
 
 Mr. Stoughton, a young man of great activity, in stature and in 
 strength equal to his adversary, after passing him, returns, pursues 
 him, and commences the attack, by giving the first blow. What 
 
78 
 
 confidence can there be placed on the accuracy of a witness who 
 swears Mr. Stoughton never struck a blow, and that the violence 
 was all on the part of Mr. Goodwin ? It is impossible that the re¬ 
 lation of this witness can be true. 
 
 In what way then did this misfortune happen ? I call it misfor¬ 
 tune, or accident, for the testimony already produced, leaves no 
 doubt that the prisoner never plunged the sword into the body of 
 Mr. Stoughton ; and lor the purpose ol the defeuce, it is immaterial 
 ' how otherwise the wound was received. That the deceased fell 
 
 on the sword, is almost morally certain, from the testimony of Dr. 
 Mott, who swears that in the situation of the parties, he judged it 
 nearly impossible the wound could have been given by Mr. Good¬ 
 win ; and from its direction and course he concluded Mr. Stough¬ 
 ton must have fallen ou the weapon. Dr. Mott’s character is known ; 
 he ranks at the head of his profession as a surgeon ; his talents and 
 judgment are confessed by all, and his integrity and candor are 
 questioned by none. 
 
 I have thus, gentlemen, attempted fairly and candidly to present 
 to you the substance and character of the testimony already given, 
 and my view of it will be greatly strengthened by adverting lor a 
 few minutes to the situation of the parties from their first meeting 
 until Mr. Goodwin freely surrendered himself to the officers of our 
 police. In no part of his conduct will you find him suffering under 
 a sense of guilt, or apprehension of punishment, or fearing a full 
 and complete investigation. He even courts a public trial. Can 
 it be true, therefore, that he sought a quarrel, or began an affray, 
 as has been represented, in our public streets ? 
 
 Of the causes or merits of the former disagreement between the 
 parties, 1 say nothing. They are not evidence on this trial, and it 
 will not be permitted that we enter into them ; our attention must 
 be confined to the transactions of the day. The parties passed 
 each other, and it is clear, that whatever then took place, did 
 not provoke the immediate resentment or excite the anger 
 of Mr. Stoughton : he crossed a whole street before he returned 
 and assaulted Mr. Goodwin. It was not then the pointing of the cane 
 that called forth his wrath ; if it were so, the moment of the insult 
 given, w'ould be the moment of the insult resented. Mr. Stoughton, 
 therefore, had not the excuse of acting upon the provocation pre¬ 
 tended. Suppose one of you had been insulted by contemptuous 
 language or other indignity, would you have pursued your way 
 step after step, yard after yard, before you noticed the offence ? 
 No, gentlemen : such insult, by every law and principle of our na¬ 
 ture, if noticed at all, would produce sudden retaliation ; and there¬ 
 fore I am constrained to say, it was the bitterness of previous quar¬ 
 rel that occurred to the mind of Mr. Stoughton, aroused his re¬ 
 sentment, and occasioned his return and deliberate attack. The 
 opportunity seemed to invite it, an excuse was given, and he glad¬ 
 ly embraced it. After thev had passed, Mr. Goodwin proceeds di¬ 
 rectly towards his place of residence, and without looking back as 
 if wishing or expecting an attack. Mr. Stoughton returns, and 
 
79 
 
 commences the affray by a blow. Can it then be said, as it has 
 been said, published, and circulated, for the purpose of pressing 
 down the prisoner by a load of prejudice, that he commenced the 
 affray? No. Stoughton passed on—Stoughton returned—Stoughton 
 began the attack, and his was the first unlawful act. 
 
 Suppose death had not ensued, and you were now trying an ac¬ 
 tion against Mr. Goodwin for an assault and battery. Upon the 
 evidence now produced, his defence must have beeu sustained, and 
 his whole conduct would have been justifiable, as long as he con¬ 
 fined himself to repel the attack biow for blow ; and the use of his 
 cane would not have rendered it less so. But mark me—I am not 
 justifying the intentional use of the weapon ; for if he did stab with 
 it, although death did not ensue, then I admit he pursued the com¬ 
 bat for the purpose of deadly revenge. But fortunately for his own 
 reflections, the tranquillity of his own heart, and his just acquittal at 
 :his time, no such motive existed, and the charge of stabbing is 
 baseless and untrue. 
 
 I shall now, gentlemen, call your attention to the law. I know 
 hat to examine law cases and authorities, is ever irksome to a jury: 
 /et, give me a patient hearing, and I do not despair of imparting to 
 mu a clear and distinct knowledge of the principles of criminal law, 
 tpplicable to the interesting question you now have to decide. I 
 tave already stated, that as far as the blows were returned, they 
 rere not unlawful ; and I assert, if death ensued in a way not con¬ 
 noted with the act of Mr. Goodwin, nor with his intention, it wa9 
 n accident, and an homicide by misadventure, for which he is in no 
 use responsible. 
 
 You are trying Mr. Goodwin on an indictment for manslaughter, 
 nd it is your duty to understand the nature of this crime, to enable 
 ou justly to decide on his guilt or innocence. 
 
 Perhaps in no trial in England or this country', has the learning 
 pon homicide been displayed with more ability than in the case of 
 Ir. Selfridge, already alluded to ; a case in many respects resem- 
 ling, and some of its striking features similar, to the present one. 
 here too parents wept over the untimely end of a promising son, 
 ablic sympathy was equally great, prejudices were strong and ex- 
 nsive, and like the present case, were excited by the aid of partial 
 id illiberal publications ; crowds assembled during the trial, but 
 ie jury dared to acquit Mr. Selfridge. All outdoor rumours were 
 irgotten in the jury-box ; no former impressions were suffered 
 (ere to prevail and to bias the judgments of the jury ; they heard 
 ie testimony calmly', and judged the transaction as it then appear- 
 « ; not as calumny and passion, or even honest error and mistake 
 Id before represented it. Their verdict was the triumph of jus¬ 
 te over public opinion hastily formed; it was the dispassionate 
 J Igment of the mind, uncontrolled by the influence and clamours 
 '•ignorance and passion ; unmoved by the heartfelt commiseration 
 f the bereaved parents, relatives arid friends, of the deceased. 
 
80 
 
 What 1 ? the crime of manslaughter ? It is not every killing of i 
 human being by the act of man that incurs the guilt of this crime 
 Nor am 1 prepared to admit as an universal principle of our law 
 that if death ensues by accident and unintentionally, trom the com 
 mission of a mere civil ( trespass, however slight and excusable 
 such death must be adjudged manslaughter. I am aware that man; 
 authorities in the English courts seem to carry the doctrine ol ho 
 micide to this severe extent. In this state we ought to adopt thi 
 principle with great eare and discrimination, and with such mercilu 
 qualitications, as the different degrees of punishment in the tw 
 countries justly require. In England, the crime ol manslaughtei 
 in its mitigated form, carries with it no infamy. Its punishment i 
 almost nominal—seldom more than a tine ol a lew shillings, follow 
 ed by a pardon. Even in its most aggravated character, when 
 approaches more to the crime of murder, the punishment is tint 
 and not exceeding a year’s imprisonment. Hence it is, that th 
 tribunals of England have always been inclined to consider ever 
 species of homicide, below wilful murder, as manslaughter. 1 h 
 same inducements to fritter away the solid distinction betwee 
 active guilt and an unfortunate accident, exist not with us. llei 
 the punishment must be at least three years’ imprisonment in tl 
 state prison : and whatever may. have been the cause, howevi 
 pure the heart and unintentional the act, there can be no gradu, 
 tion of the offence : it must be considered as a crime of a heino: 
 dye, and the unfortunate victim of accident and chance must 1 
 ruined, degraded, and rendered infamous. H we adopt, in tl 
 whole extent, the English doctrine of manslaughter, in the la 
 guage of Mr. Justice Foster, “we may even aggravate the loss 
 a brother, a parent, a child, or wife.” “ Because,” says h 
 treating of incautious conduct occasioning death, “ accidents 
 this lamentable kind may be the lot of the wisest and best of mn 
 kind, and most commonly fall out among the nearest friends and rel 
 tives.” And the same humane judge admits the rigour ot t 
 English law “ to border upon injustice, in cases where the het 
 is free from guilt.” 
 
 Let me state a case, well calculated to impress your minds wi 
 abhorrence at the cruelty of a verdict, which in this state wot 
 recognise the law of England on the subject of manslaughter, 
 husband finds a man in the act of adultery with his wife, and in t 
 first transport of passion, kills him. In England, it would be ip; 
 slaughter, and a few shillings would be the punishment. 1 mista 
 the character of an American jury, if for this violation ol all inoj 
 principle and duty, if for an offence so grievous in the sight ot GU 
 and man—and if for an injury so lasting and irreparable, to » 
 happiness and peace of an individual—1 say, I mistake the feeliit 
 and character of you, gentlemen of the jury, if, in such a 
 you would adopt the English law, and by your verdict, find S 
 killing of the adulterer, a crime. Would you, in such a case. c<-| 
 demn to the state prison a husband who slew the robber, caughty 
 the very act of prostituting, and bearing away the richest prizeftj 
 
domestic happiness, the chastity of a wife. It cannot be. Such 
 killing, in the judgment of heaven and ot man, would be excusable 
 homicide. 
 
 I shall now, gentlemen, examine the English authorities on this 
 subject, and admitting their full force and application, I assert with 
 confidence, that, governed even by these, the prisoner is to be 
 acquitted. 
 
 First, I remark as an universal proposition, and supported by 
 svery law case, that the blow, or other act causing the death of a per¬ 
 son, must have been a voluntary act. I do not intend to assert that 
 he act must be intended to cause death, but that the act itself, which 
 mwever unexpectedly did cause the homicide, must have proceeded 
 rom the will and design of the person committing it: as, if two men en¬ 
 gage in a fight, and, in the moment ofheat and passion, a blowis given 
 vhich proves fatal. It was notthe intentofthe party to kill jbutyet, he 
 utended to give the blow, the effects of which, unfortunately, proved 
 nortal. Again, a person shoots at the poultry of his neighbour, the 
 )all glances and kills a bystander ; the firing was a voluntary act— 
 >ut it was an unlawful act; and, therefore, the accidental Idli¬ 
 ng was adjudged manslaughter. 
 
 Now, before you can apply the English law in its greatest strict¬ 
 ness to the present case, you are to be satisfied that Mr. Goodwin 
 id actually inflict the wound. I admit, that it is not necessary he should 
 iave meditated the death of Mr. Stoughton : but I repeat, that to con- 
 titute the crime charged in the indictment, the prisonermustbe found 
 p have used the dagger, and in its voluntary use to have given the 
 lortal stab. 
 
 The counsel then read to the jury the definition of manslaughter, 
 y Chief Justice Parsons. (Selfridge's Trial, p. 6. Ibid. Charge of 
 ’ourt, fol. 158.) He also cited, 4 Black. Corn. 182-11. 2 Chi tty's 
 'riminal Law, 729. Foster's C. L. 261. 1 East's C. L. 244. 
 
 'aylor's case, 5 Burrows, 2793, Snow's case, 1 Leach, 176. And 
 ir John Chichester's case, from Foster. On all these authorities he 
 unmented at length, and enforced his first position, that in all of 
 lem there was a wilful act on the part of the killer, and which, al- 
 lough unintentional, produced death. He applied the principle of 
 ie,e cases by pressing the fact, that there w'as no evidence that 
 !e prisoner ever gave the blow with the sword ; nay, the testimony 
 ghtly considered is, that he had it not in his hand whan the wound 
 as received. Suppose he had, yet, if not directed by him, he must be 
 quitted. (1 East, p. 6. 269.) “ Though the weapons be of adanger- 
 is nature, yet if they be not directed by the persons using them 
 ■ ainst each other, and so no danger to belreasonably apprehended, if 
 ■ath casualty ensue it is but misadventure.” “ So, if A assaults B, 
 ho flies to the wall, or falls holding a sword, knife, or pike, in his 
 and ; A runs violently, or falls upon the knife of B without any 
 trust or stroke offered at him by B and dies ; this is death per in - 
 Jrtunium." (1 Hale, 480.) Again, in the same book, page 493, 
 ‘b having a pitchfork in his hand, A assaults B so fiercely that 
 f runs n P 01 * the pitchfork of B andilies, B offering no thrust at 
 
 11 
 
82 
 
 all against A, it seems B forfeits no goods, because it was the act 
 of A himself.” 
 
 Gentlemen, I have read these cases to you, that you may ex 
 tract from them some principles strongly applicable to the fact) 
 of the present case, even if you should, from the discordan 
 evidence offered, be able to infer or collect, that at the time o 
 the wound received, the prisoner had the sword in his hand. Un 
 derstand me, gentlemen, for it is my object to address you candidh 
 and frankly, and not to attempt to mislead your judgments, or ti 
 press any doctrine of law, beyond its fair and legitimate applica 
 tion. If, therefore, the deceased did not commence the affray b; 
 the first personal violence, or if the prisoner was not justifiable i: 
 resistfng such violence, then the principles of those authorities d 
 not apply ; but if the unlawful act commenced with the deceased 
 and death casxiallij ensued, without intentional use of the weapon, i 
 is but misadventure ; or if the prisoner held it in his hand passively 
 and without any thrust on his part, and the deceased, by closing in 
 or otherwise presses or falls on it, comes to his death, it is still 
 casualty or misadventure. Gentlemen, 1 have finished my remark 
 on the law. I have not entered into the nice distinctions which pre 
 vail in England between the different kinds of excusable and jus 
 tillable homicide, because they are inapplicable to the criminal cod 
 of our country. Excusable homicide, in England, is followed b 
 forfeiture. We have no forfeiture here, and the distinctions in th 
 English authorities, on this branch of the subject, serve tobewildei 
 and not to enlighten us. My object has been to confine my remark 
 to the crime now under consideration, that your attention may b 
 fixed to a single point, and your minds not perplexed by a display < 
 learning, which belongs not to the immediate' subject of your inve; 
 ligation. 
 
 Gentlemen, we shall now produce the testimony on our part; an 
 if you have any doubts remaining, they will be removed. And n 
 man, who attends this trial, will hereafter regard the unfortunal 
 prisoner without feelings of sympathy and commiseration. Evei 
 prejudice will be dissipated, and every heart will acquit him fro 
 deliberate and wilful crime. We shall prove to you his proud coi 
 duct at Elizabethtown, his voluntary surrender, his boldness 1 
 encounter the force and influence of public clamour and private n 
 senlment; relying on the consciousness of his own heart, which fe 
 no guilt ; and feelingly alive to his own character and reputatioi 
 be would not, by flight, confirm the calumny of his being an assa 
 sin or murderer. 
 
 He sought, therefore, this day’s investigation, and threw bimse 
 on the decision of a jury of his country, as the protecting shield 
 his reputation and innocence, in his future walks through life. T 
 your magnanimity,justice and firmness, he then appeals: by tl 
 ties of filial attachment, which bind him in reverence to an almoi 
 broken-hearted parent, who mourns in deep affliction over tl * 
 event, which, at this hour, darkens the destiny of her son : by tl | 
 fraternal love which unites him to a sister, whose sighs and sornn 
 
83 
 
 have reached him from afar, and whose only hope of happiness 
 hangs on the restoration of this brother, with a character purified 
 and acquitted of the foul charge of assassination, he makes this 
 appeal: not to your sympathies, but he conjures you to forget every 
 former prepossession, and resisting public clamour, public preju¬ 
 dice, and whatever may be the voice and opinion of the multitude, 
 that you will dare to do your duty, and to render a verdict of ac¬ 
 quittal. 
 
 In doing so, I am not asking you to suppress the best feelings of 
 our nature. Let us weep for the death of Stoughton. 1 knew 
 him well. Let us mingle our tears with the tears of his deeply af¬ 
 flicted parents. And whilst with j'ou, and with me, the prisoner- 
 sheds a tear over the untimely and unforeseen end of the son of their 
 promise and their hopes—whilst with poignant regret he will ever 
 remember the disaster of that day, and deplore the misfortune of 
 the aged and comfortless parents—still he claims his acquittal of 
 being the willing instrument of death and misery. 
 
 He calls upon you to restore him with untarnished reputation to 
 the embraces of a wbdowed parent. He calls upon you to wipe 
 away the tears of an affectionate and afflicted sister ; and to give 
 him up to that brother, who has been to him a companion in im¬ 
 prisonment, and is now his anxious attendant during the progress 
 of this trial. He boldly deposits in your safe keeping his innocence, 
 his freedom, and his future fate. 
 
 EVIDENCE ON BEHALF OF THE PRISONER. 
 
 First Witness for the Prisoner—Flosier Wilder. 
 
 EXAMINED BY JAMES A. HAMILTON. 
 
 _ Witness. I was walking up Broadway on the eastern side of the 
 street; and after I had got nearly to the corner of Maiden-lane, in 
 casting my eye across the street, I saw two persons on the pave¬ 
 ment. The first thing that struck my view was, the one over, or on 
 the top of the other ; Mr. Stoughton was lying on his back. I did 
 not then know either party. Mr. Goodwin was in the act of striking 
 him when I first saw them, and repeated his blows two or three 
 times with his hands, whilst Mr. Stoughton was on his back, striking 
 with both hands, first one and then the other. I could not distin¬ 
 guish whether the hands were open or shut. On observing this, 
 I immediately ran between them: my intention was to part them. 
 It was the natural impulse of my mind on seeing an affray, to en¬ 
 deavour to make peace. I approached very near them, say within 
 a yard or two, or perhaps half the breadth of the street: when 
 some gentlemen who had got there sooner, perhaps two or three, 
 were nearer than me. I did not know these gentlemen at the time. 
 I then observed one gentleman take hold of Mr. Goodwin, who was 
 then in an inclining posture over Mr. Stoughton, whether on his 
 feet or on his knees I could not see. Some gentleman then took 
 hold of him and said, you seem to be a gentleman, I am surprised 
 1 to see you in that situation ; or, perhaps, not quite so many words. 
 
84 
 
 He took hold of Mr. Goodwin, and lie rose from over Mr. Stough* 
 ton, and got upon his feet and stepped back. At the same instant, 
 either this gentleman or another, took hold of Mr. Stoughton and 
 lifted him up, by means of his own strength added to that of the 
 person who helped him. He rose on his feet and stood against a 
 person, leaning on his shoulder a moment or two ; he then fell 
 back, and I perceived an instantaneous change in his countenance, 
 «nd a cast in his eye. Somebody said, a doctor should be sent for, 
 and that he should be bled ; 1 think it was Mr. Clark, or the same 
 gentleman that raised him up ; it might have been another. I had my 
 eye constantly upon him whilst this was passing. In a very short 
 time he settled down like one crippled, about half way down to the 
 pavement, from the shoulder of the person that he had leaned on. 
 He was then taken up and carried to an adjacent store. After Mr. 
 Goodwin was taken off him, or rose from over him, three or four, 
 or half a dozen people, had come from every direction. Mr. Good¬ 
 win stood and looked for his hat. When he was taken off, he 
 had nothing on his head. 
 
 Hoffman. Did you see the weapon, or the cane, on the ground ? 
 
 A. I saw it afterwards, when Mr. Goodwin was looking for his 
 hat. I recollect seeing the weapon somewhere, but whether in the 
 hands of any person, or before it was picked up from the pave¬ 
 ment, I cannot determine. From the time I saw him till the affray 
 Was over, I had a full and distinct view, and there was nothing to 
 intercept my sight. Whether the blows were with the open or 
 closed hands I cannot say. They seemed to be always at the head. 
 They were repeated quick. If I can believe my own senses, 1 think 
 I should have seen the weapon, or any thing he could have in his 
 hands, from the time I lirstsaw him. 
 
 Cross-examined by Wells. 
 
 Q. You say the first you saw of these parties, was one over the 
 fcther. Was the prisoner on the ground ? 
 
 A. I cannot say whether he was on his feet, or leaning on his 
 knees. The first motion 1 perceived was the giving of those blows. 
 
 Q.. Might not he have that dagger in his hand, and you not see 
 it, supposing he held it in that manner ? (showing.) 
 
 A. It appears to me next to impossible. 1 took it to be an ordi¬ 
 nary affray, and thought it of little consequence. 
 
 Q. Then not considering it a serious affair, Mr. Goodwin might 
 have had that in his hand, or a stone, for aught you knew ? 
 
 *A. I saw the motions, and could see quite plain across. I was a 
 little below Maiden-lane, when 1 first saw them. 
 
 Q. AVas there any blow after the prisoner was raised from Mr. 
 Stoughton ? 
 
 A. No, sir. They were not in such a position that they' could 
 come together. They were not near each other. 
 
 Q. Did you see Mr. Stoughton when he fell ? 
 
 A. No. The first thing l saw was when he was lying on his 
 back. 
 
35 
 
 The Mayor . 1 wish the counsel would interrogate the witness so 
 as to identity the part of the street where this happened. 
 
 Witness. I should say that probably Mr. Stoughton’s body lay 
 from 10 to 12 feet from the corner of the curbstone ; his feet were 
 next to the curbstone. He lay obliquely, or diagonally, his feet 
 pointing to the southwest corner, or angle of the curbstone. 
 
 Q. Do you know who those persons were that came up to them ? 
 
 /I. I did not know a single person on the ground. I saw Mr. 
 Wier a few steps from me. I think he was ahead of me. They 
 were all strangers to me that came first on the ground. 
 
 The Mayor. You say there were one or two persons before you—- 
 did Mr. VVier cross over before you ? 
 
 A. I think there was not much difierence. He may have been a 
 little before me. 
 
 Second witness for the Prisoner — Col. James Warner , Police Justice. 
 
 Witness. At the request of the mayor and general Bogardus, I 
 went over to Elizabethtown in pursuit of Mr. Goodwin, on the eve¬ 
 ning of the 21st of December last. I took with me two police offi¬ 
 cers ; Mr. Hays, the high constable, and Mr. Raymond. We 
 crossed the river in a rowboat, got a carriage at Jersey, and drove 
 rapidly to the Point, to ascertain if he was there, and inquired if 
 such a gentleman had crossed. They told me that gentlemen of the 
 description had crossed. 1 next inquired whether any measures 
 had been taken to obtain a carriage. They told me not, and that 
 all the gentlemen had gone up to the town. I inquired of the per¬ 
 son who had gone down with him, (the proprietor I think he was) 
 and he informed me the passengers were all at the same house. 
 Finding they were all gone to the same public house, (Rivers’s) 
 we went directly there. When we came to the stoop, as Mr. Ray¬ 
 mond knew him, I desired him to look into the window, which 
 he did, and said he was not there. I then said I must see the 
 landlord, to ask if all the passengers were there. Mr. Goodwin 
 was in the bar-room smoking a segar, or had one in his hand. 
 Mr. Raymond addressed him; for he was to speak to him, that I 
 might by that means know which of the gentlemen was he. Mr. 
 Raymond asked him how he did, and told him he was sorry for 
 what had happened. Mr. Goodwin answered, how do you do, 
 Mr. Raymond ? how is Mr. Stoughton ? I then told him I was 
 sorry to inform him he was dead, and that I was come from 
 New-York, to take him to answer for the act of killing him, 
 ©r some such words. He expressed his sorrow, and observed 
 that he was ready to go ; that he never would fly from the 
 laws of his country ; that he had not come there to avoid the 
 charge ; that he had no idea of such a thing taking place, and 
 declared his willingness to go with me. He came out with me, 
 and then expressed a desire to speak to a gentleman who was 
 in the room 1 had first looked into. 1 told him that he might. 
 He then opened the door, and called a gentleman by the name 
 of Judge Butler. The gentleman came out into the entry. He 
 
86 
 
 observed to him that he was arrested, or taken, and had to go 
 back to New-York. The gentleman then addressed himself to 
 me, and inquired by what authority I took him. I answered, 
 by no written authority. He observed that the authority of the 
 mayor did not reach there. I told him 1 knew that: that it was 
 for Mr. Goodwin to say whether he would go or not. He re¬ 
 plied that he was ready to go, and would submit. Mr. Butler 
 approved that course, and said it was very proper. The car¬ 
 riage was then standing at the door. He jumped in, and we 
 drove on to New-York. The prisoner expressed his wish to 
 be taken to the mayor, immediately on his arrival; and 1 told 
 him if the mayor was up, he certainly should. 
 
 Cross-examined, by Hoffman. 
 
 Q Did he say, you have no right to take me, but I will go ? 
 
 A. After Mr. Butler spoke about the authority of the mayor, he 
 mentioned that he would not object. 
 
 Q. You admitted you had no right to take him ? 
 
 A. I said I had no written authority. But I was myself deter¬ 
 mined to have made a hue-and-cry, though I did not tell him that. 
 He was very courteous and complying, and there was no occasion. 
 He was taken to the mayor that night, and committed to the Bride¬ 
 well. 
 
 Q. Do you know who Mr. Butler is ? 
 
 A. I have heard he was one of the members of congress for 
 Louisiana—he was called Judge Butler. 
 
 Third Witness for the Prisoner—Jacob Hays. 
 
 Witness. I can say nothing but what Mr. Warner has said. Some¬ 
 body asked what authority we had, immediately on our going in ; 
 and the prisoner at once said he would go. 
 
 Emmet. I find myself under the necessity of stating, that Mr. 
 Hoffman, who has charge of the testimony of the prisoner, is ex¬ 
 tremely indisposed. I shall request, as a favour, that the court 
 adjourn. It is now nearly five o’clock, and perhaps it would not 
 be, at any rate, a very improper time to adjourn. 
 
 The Mayor . I feel very much for this jury. It is hard to keep 
 so many citizens from their families. The}' are entitled to be con¬ 
 sulted on this point. His honour further stated that he had received 
 a note for one of the jurors : that it only regarded his family 
 affairs, and he presumed it could not be any prejudice to either of 
 the parties. The counsel on both sides consented, and it was given 
 to the juror. 
 
 And then one of the jurors asked on behalf of himself and his 
 fellow-jurors, whether they might not be allowed to communicate 
 with their clerks. Which the mayor said could not be permitted, 
 unless it were in open court. 
 
 The oppressive heat of the court from the continual crowd which 
 had so long filled it, had exhausted all concerned, and the jurors 
 asked whether they might not, during the recess of the court, be 
 
87 
 
 indulged to walk in the Park, adjoining the Hall, to take the fresh 
 air ; which, after some deliberation, the court seemed disposed to 
 comply with. But the sheriff observing that he could give the 
 jurors the same recreation, and a very agreeable walk on the top 
 of the building, that was thought more suitable. The mayor also 
 pointed out the governor’s gallery, where they might have as much 
 air and exercise as their health required, and be as sequestered as 
 in the jury room. 
 
 Then Mr. Crawbuck, one of the jurors, asked for permission to 
 communicate with one of his sons, or with a clerk—to which the 
 mayor answered, that it must only be in court, and that the court 
 would now wait, if it was necessary, to give him time to come, or 
 that he might come to-morrow morning. And the court then ad¬ 
 journed till the following morning, at the usual hour of eleve&i 
 o’clock. 
 
 THIRD DAY.—THURSDAY, MARCH 16th. 
 
 At 11 o’clock A. M. the Court met. 
 
 PRESENT AS BEFORE. 
 
 Tile court being met, the jury was called over, and each answered 
 o his name. The mayor told the petit jurors not empanelled in this 
 ;ause, that it appeared quite unlikely that this trial should be 
 inished before to-morrow. And Saturday being appropriated to the 
 naking up and pronouncing the sentences of the convicts, and n« 
 ury day, they were therefore discharged for the term. 
 
 Fo urteenth witness for the prosecution—Churchill C. Cambreleng. 
 
 EXAMINED BY GRIFFIN. 
 
 <$. Were you in company with Mr. Goodwin on the 21st of De¬ 
 ember last ? 
 
 A. I was, sir. 
 
 Q. At what hour did you and he come together ? 
 
 A. About three o’clock. 
 
 Q. Where did you first come together ? 
 
 A. At the City Hotel. 
 
 Q. Where did you then go? 
 
 A. We walked up Broadway as far as the Church, and then re- 
 irned. 
 
 Q. Upon your return did you meet Mr. Stoughton ? 
 
 : A. We did. 
 
 Q. Where ? 
 
 A. Nearly at King and Mead’s store, on the northwest side of 
 bo ad way, next Counlandt-street. 
 
 Q. How long before you passed him did you see him coming ? 
 
 A. About thirty or forty seconds. 
 
 Q. Did you make any observation to Mr. Goodwin ? 
 
 A. 1 think I said, there is your friend coming, or something of 
 I tit kind. 
 
88 
 
 Q. Did Mr. Goodwin make any reply ? 
 
 A. He said nothing at all. We then walked on to the northwest 
 corner of Courtlandt-street and Broadway, opposite to King and 
 Mead's store. When we approached w ithin about six paces ot Mr. 
 Stoughton, Mr. Goodwin and he being in front of each other, Jlr. 
 Goodwin pointed at him with his cane, and said, there is a coward 
 and a scoundrel, or such words, I cannot exactly say, pointing 
 his cane as if indicating that he was the man. This was on the side¬ 
 walk, on the southwest corner. 
 
 Q. What occurred when you passed Mr. Stoughton . g 
 
 A. Mr. Stoughton passed on without saying any thing ; they look¬ 
 ed at each other; Mr. Stoughton passed on about two paces and 
 then turned quickly round.—t think I should get through more re¬ 
 gularly, if the gentlemen would allow me to tell the story as it hap- 
 
 ^ Griffin. I wish to direct your attention to this : I want to know 
 whether Mr. Goodwin repeated these words as he passed him l * 
 A. He merely pointed and repeated the words as lie passed. ^ 
 
 Q. Be good enough, sir, to mention what occurred afterwards. 
 
 A. After Mr. Stoughton passed on a few paces, he turifled partly 
 round. Mr. Goodwin"turned facing him. Apprehending an affray, ij 
 pulled Mr. Goodwin by the arm, and advised him to go on, whiclj 
 he did readily. We crossed the head of Courtlandt-street, from thr j 
 northwest to the southwest corner, and l supposed that Mr. Stough , 
 ton had continued his walk. When we had reached the southwes j 
 corner, Mr. Stoughton, who had followed, came up and accoste. 
 Mr. Goodwin. Mr. Goodwin turned quickly and answered, 
 cannot precisely repeat his words, 1 think they were these : “ Vifil 
 you repeat what you said?” The answer was, l will, sir: that a 
 least was the import. The question and answer were very short an- 
 quick. It was next to impossible for a bystander to understan 
 them. Mr. Stoughton strurk him, and after that blow, Mr. Goodwt 
 struck Mr. Stoughton with his cane, holding the but end ot it m hi 
 hand : the blow followed immediately. Mr. Stoughton struck Mi 
 Goodwin near the left shoulder, pretty high up on the breast; 
 could not tell exactly, Mr. Goodwin being at that time turned rouni 
 The blow of Mr. Stoughton was with his list. I saw the motion c 
 the. hand, but could not see distinctly, as Mr. Goodwin’s back w? 
 to me, and he was between me and Mr. Stoughton. (The cane w< 
 now shown to the witness.) This is, 1 presume, the same. I 
 striking the blow with this cane, the dagger Hew partly out of ft) 
 sheathT The attention of both parties seemed directed toward th 
 part of the blade which was exposed. Mr. Goodwin, howeve 
 seized the dagger by the handle, and put the blade in Ins right ban 
 The first stroke was with the but of the cane. In doms; that tl 
 sheath was off it, about so far, (showing a few inches) Mr. (too., 
 win then seized the blade, and in that manner followed up his bloy 
 The .Mayor. I should like to know precisely where the parti- 
 were at this stage of the transaction ? 
 
89 
 
 A. At the moment the blow was given with the carte, both pas¬ 
 ties were on the sidewalk. It appeared to me that Mr. Stoughton, 
 on retreating, placed one foot upon the pavement of the cartway. 
 The battle between them was quick and sudden. 1 should suppose 
 three or four tdows were given on each side, and I think they re¬ 
 treated (one retreating and the other advancing) about eight paces 
 across,! but not quite as far as the middle of Courtlandt-street, and 
 rather into Broadway. Mr. Goodwin held the sword close by the 
 handle, which 1 think took from it part of the force and impulse it 
 would have had if held more at length. 
 
 Q. When you say the one was retreating and the other advan¬ 
 cing, you mean that Mr. Stoughton was retreating and Mr. Good¬ 
 win advancing 1 
 
 A. I do. 
 
 Q. Where were you situated at the time of that retreat ? 
 
 A. I waS on the sidewalk. 
 
 Q. Was the prisoner’s back or face towards you ? 
 
 A. I could see the right arm of Mr. Goodwin, and the left ofMr. 
 5toughton. I could see the blows that were given, being high, in 
 the way they were fighting. Mr. Weed was then standing not far 
 From us, on his own stoop. 
 
 Q. Who was the first person that came to interfere between the 
 combatants ? 
 
 A. I think Mr. Clark and myself arrived about the same time, 
 de came from the northeast side, and I of course from the south- 
 vest. Mr. Stoughton had fallen before either of us came up. I 
 :annot tell whether he fell from the blow, or tripped in re- 
 reatiug, or what produced his fall ; for the further they went 
 rom me, the less I could see. Another reason was, that each 
 tarty had on one of those fashionable surtout coats, with large 
 :apes, so that it was difficult for me to see what was passing 
 between them at the moment. 
 
 Q. Please to go on sir, and mention what else took place. 
 
 A. Mr. Clark called out from the other corner, and we went up 
 o them. 1 was behind Mr. Goodwin, and took hold of him, and 
 eparated them. 
 
 Q. What was their precise situation at that time when you came 
 o them ? 
 
 A. I think Mr. Stoughton Was lying on the cartway. Mr. Good- 
 vin had fallen nearly down upon him, but not so far as to lose his 
 alance,but as near as he could well be, without being on the body 
 jf the other. It is difficult to describe their situation with exactness. 
 
 Q. When Mr. Clark came up to separate them ? 
 
 A. There was another gentleman, whom I have supposed was 
 Ir. Clark, but who 1 now believe was Mr. M‘Williams. 
 
 Q. What was the first act of Mr. Clark;—who first took hold of 
 ae parties ? 
 
 A. The back of Mr. Goodwin was to me, and prevented my 
 seing him. 
 
 Q. Be so good then to state, sir, what next occurred, 
 
 12 
 
90 
 
 
 A. The parties were separated, Mr. Stoughton was raised; ll 
 think he got up with very little assistance from Mr. M'Williams, ' 
 They stood looking at each other like two persons that had been 
 engaged, and were ready to begin the battle again, if we would let 
 them. While they were so standing, three or four other persons 
 came up. in about half a minute Mr. Stoughton rested his arm oi 
 hand upon the shoulder of Mr. M‘ Williams, 1 thought till lately it 
 was Mr. Clark ; and gradually reclined his head upon his hand, 
 jesting it upon Mr. M* Williams’ shoulder: and, as 1 thought at the I 
 time, fainted away. 
 
 Q. Was there any explanation made before Mr. Phelps at the i 
 time ? 
 
 A. Mr. Phelps came up just before he fainted, and looked him in I 
 the face, and said : “ this is a dead man.” 
 
 Q. Did Mr. Goodwin leave the ground then, and what passed ? 
 
 A. Mr. Stoughton, when he swooned, was supported by those i 
 that were near him, so that he did not fall at all: and he was taker 
 into a neighbouring store and the door locked. This might probabl) 
 have occupied a minute. The door was locked almost immediately 
 to prevent the crowd from rushing in and taking the goods in the 
 drygoods store. Mr. Goodwin observed to me, that he had lost hi: 
 hat, but had got Mr. Stoughton’s ; I told him he had better keej 
 that till he had found his own : that probably the person who hai 
 that, had exchanged. 
 
 Q. Where did he go then ? 
 
 A. We walked together down Broadway, leisure!}', as we hae 
 been walking before. 
 
 Wells. What was your conversation then ? 
 
 A. Mr. Goodwin asked me if 1 thought he had better leave thi 
 city. 1 told him no, it was unnecessary ; that Mr. Stoughton hai 
 fainted, and would undoubtedly recover. Mr. Goodwin then re 
 minded me of the expression of Mr. Phelps, “ That is a dead man.’ . 
 I then told him that, perhaps, he had better quit the city till he hai 
 ascertained whether be recovered or not. 
 
 Q. Where did you part with him ? 
 
 A. 1 parted with him near the City-Hotel, and returned througl 
 the crow'd. 
 
 O. Did he lodge at the City-Hotel ? 
 
 A. He did. 
 
 Q. Did Mr. Goodwin go in then ? 
 
 A. Mot while l was there. (Witness being asked, stated tin 
 manner of Mr. Stoughton’s fall as before.) 
 
 The Mayor. I understand you saw Mr. Goodwin using the dagger 
 by striking with the but end, and holding the blade, when Mr 
 Stoughton was retreating : and that you saw him have it when In 
 fell, or immediately before. When did you see that dagger again ? I 
 
 A. I have an impression that I saw it a minute after the affray t 
 was over ; but I did not see it in his hand at the time they stooi | 
 looking at each other : and I have the impression on my mind, tha 
 
91 
 
 somebody picked it up and gave it to him when the affray vras over, 
 perhaps a minute after the time he was looking for his hat ? 
 
 Q. Do you mean, sir, to state that as your positive testimony ? 
 
 A. I do not state it as a matter of fact of which 1 am positive : it 
 was a moment of confusion, and it is a very vague impression upon 
 my mind. 
 
 The Mayor. What did you mean by “ when the affray was over, 1 ' 
 was it after he fainted, or after he was carried into the store ? 
 
 A. After he was carried into the store. But it is a very vague 
 impression. 
 
 Griffin. When was Mr. Goodwin looking for his hat—at what part 
 of the transaction, or how long ? 
 
 A. I cannot say how long, for the moment Mr. Stoughton fell, 
 my attention was more towards his person. 
 
 Q, If you saw the dagger then at all, it must have been after he 
 was carried on the stoop ? 
 
 A. It must have been so, if I saw it at all. The period of the 
 transaction and the time are equally uncertain. 
 
 Q. Your attention was directed to Mr. Stoughton w'hen in thq 
 act of fainting ? 
 
 A. Yes, sir. 
 
 Q. And while he was removing to the stoop ? 
 
 A. Yes, sir. 
 
 Q. During that time you have no impression that you saw any 
 body handing the dagger to Mr. Goodwin ? 
 
 A. It may have happened w’hile they were taking him to the 
 stoop ; but it could not well have been then, as my attention was 
 directed to Mr. Stoughton. 
 
 Cross-examined by Hoffman. 
 
 Q. At the moment the deceased fainted, did you see both the 
 hands of the prisoner ? 
 
 A. Yes, sir. I was standing close by his side. 1 saw both his 
 hands, and no dagger. 
 
 The Mayor. I wish to understand precisely what you intend by 
 “ the moment after he fainted ?” 
 
 A. The moment when he was supported by the persons who 
 stood near him, and was carried towards the store. The moment 
 immediately after, is more properly the moment when he was so 
 supported. At that moment when the parties were both standing 
 up, looking at each other nearly half a minute. 
 
 Q. When you were assisting to separate them, had Mr. Goodwin 
 then the dagger in his hand ? 
 
 Q. I was behind and might not have seen : but I suppose if he 
 bad had it in his hand I might have seen it, as his right hand was 
 all the time exposed to my view. 1 was just behind Mr. Goodwin 
 at that time—whether I took hold of him or not, 1 cannot say. I 
 think I took hold of him by the collar : to say 1 saw his right hand, 
 might be too particular : but that I saw his right arm, I can say with 
 certainty, 
 
92 
 
 Q. Was Mr. Goodwin’s right hand or right arm in such a way, 
 at any time, that you could not have a distinct view of it ? 
 
 A. No : for the right side of his body, during the whole contest, 
 was next to me, and 1 could, during the contest, see the right arm ; 
 but after I came directly behind him, I could not. 
 
 Q. At the moment of Mr. Stoughton’s fall, could you see the 
 prisoner’s right hand ? 
 
 A. 1 think I could, but not after that, when I came immediately 
 behind him. 
 
 Q. At this very moment of the fall, might you see his right 
 hand ? 
 
 A, I might, but I do not positively undertake to say that I did 
 see it. 
 
 (Here the mayor deliberately read over to Mr. Cambreleng his 
 testimony as he had minuted it down, and the witness said that it 
 was all correct.) 
 
 Q. Did you hear any dagger fall on the pavement, at the time 
 of Mr. Stoughton’s rising ? 
 
 A. No, sir. 
 
 Q. Did you during any part of the whole of this conflict see Mr. 
 Goodwin give a blow with the but end of the instrument? 
 
 A. I never did. 
 
 Q. Do you think he could have made the thrust and you not see it ? 
 
 A. 1 think not. It would be very improbable. 
 
 By a Juror. At what part of Mr. Stoughton's person did the 
 blows appear to be directed ? 
 
 A, I never saw any blows made with the dagger, except with the 
 handle, and at the head. He sepmed to be very cautious of using 
 the blade, and appeared to me to have received one or two 
 blows during the time he was shifting the dagger in his right 
 hand ; he was then entirely exposed to his antagonist. 
 
 The Mayor. Do you state it as a matter of fact or belief that he re¬ 
 ceived blows when he was changing the instrument ? or is it an in¬ 
 ference of your own ? 
 
 A. It is an inference I drew from the situation of the parties. 
 
 Hoffman. According to the best of your recollection, did he not 
 receive one or two blows while he was changing the instrument ? 
 
 A. I did not see them, but I am almost certain it was so : which 
 I conclude from the time he remained exposed by that and by the 
 dropping of the scabbard, and changing the instrument. 
 
 (The witness here described and showed how the dagger flew 
 halfway out, and how he took the handle and let the sheath drop, 
 placing the dagger in his right hand.) 
 
 Q. Was there any intermission of the blows ? 
 
 A. No. The battle seemed to me to be very nearly equal ; 
 and I thought from the time lost in changing the instrument, 
 that Mr. Stoughton had the advantage, but the moment after, Mr. 
 Goodwin had it.. 
 
93 
 
 Q. Do you mean to be understood, by Mr. Stoughton’s retreating, 
 that he did not seem to wish to continue the fight ? 
 
 A. I saw no such disposition on Mr. Stoughton’s part. The 
 whole of the controversy did not last 16 seconds. It was so quick 
 that no one interfered. 
 
 Q. Did you then consider the retreating of Mr. Stoughton to be 
 for the avoiding of the fight ? 
 
 A. No, sir. I thought both parties seemed disposed to fight, 
 and I believe the number of blows were about equal on both sides. 
 
 Q. Did they appear to be of equal, or nearly equal strength ? 
 
 A. Mr. Goodwin appeared to be the most active man. Mr. 
 Stoughton I supposed to be the strongest. He was rather taller 
 than Mr. Goodwin, perhaps two or three inches. 
 
 Q. While Mr. Stoughton was retreating, did he not give blows 
 with as much severity as during any other part of the contest ? 
 
 A. I think he did, but could not well judge of their severity. 
 
 Q. Did he only defend himself, or did he strike ? 
 
 A. He struck. 
 
 Q. Had a great crowd assembled there before you and Mr. Good¬ 
 win left the ground ? 
 
 A. A considerable crowd, about forty or fifty people. 
 
 Q. Did he discover any haste to be off? 
 
 A. None at all. I believe he went off with my approbation. The 
 crowd was gathering every instant, and there was a natural excite¬ 
 ment among them. 
 
 Q. Did you know any thing of his stopping to buy a hat ? 
 
 A. 1 heard from Mr. Shelton, that he stopped at Mr. Brewster’s. 
 I left Mr. Goodwin in company with Mr. Shelton, near the City 
 Hotel, when 1 returned to the crowd, where I was very much 
 surprised to hear— (witness was stopped by an objection to his testify¬ 
 ing from hearsay .) 
 
 Witness. I was going merely to repeat what formed a part of my 
 testimony before the inquest and the grand jury. It was natural 
 for me to repeat it, not knowung it was objectionable. 
 
 The Mayor. Describe how it passed after Mr. Goodwin had be¬ 
 gan to use the instrument. 
 
 A. 1 think, after that, he had the advantage, but not by the use 
 of the instrument, rather by using both his hands. 
 
 Q. What was the reason did you think of his going back ? 
 
 A. It appeared to me that Goodw'in W’as the best fighter, and 
 knew more about it than Mr. Stoughton. 
 
 Q. Did you consider the having of this cane as any advantage in 
 giving the blows ? 
 
 A. I think not. If he had held it nearer the end of the blade it 
 might. 
 
 Q. Which hand of the prisoner seemed to do most execution ? 
 
 A. I thought I perceived a bruise upon the right cheek, which 
 must have been given with the left hand, and which seemed to have 
 had the greatest effect. 
 
94 
 
 <5. From all you saw of the situation of the parties, and of the 
 circumstances connected with it— 
 
 Griffin. Let the witness be asked as minutely as possible, touch¬ 
 ing all the relative situations ofthe parties ; but having told all the 
 iacts he knows, his opinions are not to be appealed to as evidence. 
 
 Emmet. J he learned counsel forgets that we are now cross-ex¬ 
 amining the witness, and have a right to his belief. 1 contend, that 
 for the enlightening ot the jury, who could not see the facts with 
 their own eyes, they should know the opinion of the witness who 
 did see them, whether the accident could take place otherwise than 
 by the fall. There will always be circumstances that cannot be 
 translated, or rightly rendered to the juror by words, and the jury 
 being to judge of the circumstances, ought to be acquainted with 
 the conviction of the witness from all he saw and observed, and 
 w ith the character of the transaction from the impressions it made 
 upon him : for instance, whether it was accidental or otherwise. 
 All this is necessary to lead the mind of the jury to the truth, and, 
 perhaps, to prepare them forjudging of other truths that may fol¬ 
 low. And, indeed, unless you get rid of the cardinal rule, that on 
 cross-examination you are entitled to a witness’s belief, you cannot 
 shut out this testimony. 
 
 The Mayor. The court think the question is not proper. It is 
 the province of the jury to say whether the fact took place by acci¬ 
 dent or otherwise, and it would be substituting the witness in the 
 place of the juror. It would be as competent to call any other 
 witness and ask his inference. It is here said that there may be 
 certain circumstances which might influence his conclusions, but 
 that is a reason for not asking his opinion. Many circumstances 
 may transpire to influence a witness to draw a conclusion that he 
 ought not to draw, and therefore he should be confined to stating 
 the facts, and not put himself in a situation to draw one conclusion, 
 while the jury, from the same facts, might draw a different one. 
 The argument of its being a cross-examination, cannot extend so 
 far as to the asking of every question ; on all cases and circum¬ 
 stances, the discretion of the court must govern, and counsel is not 
 to examine how, and how long he pleases. The court, in its dis¬ 
 cretion, may interpose. I think the rule goes thus far, that you 
 may test the witness by questions that are not even relevant; but 
 suppose a witness gives an opinion, how shall you contradict him ? 
 You cannot bring other witnesses to contradict his opinions ; there¬ 
 fore, though a counsel may travel out of the case to test his credit, 
 it does not follow that you can ask his opinion. We should have 
 made the same decision touching the opinion of the doctors, if the 
 objection had been made by the opposite counsel. 
 
 Q. Do you know whether that was the cane Mr. Goodwin used 
 to walk with ? 
 
 A. 1 do not know, I never saw r it before. 
 
 Q. Do you know whether Mr, Goodwin has ever been a military 
 man ? 
 
95 
 
 A. I never saw him until this last summer. But I have heard, 
 hat he had been a military man. 
 
 Q. Did you see any marks of blows upon Mr. Goodwin ? 
 
 A. None that 1 recollect. 
 
 Juror. Was the fall a severe one ? 
 
 A. It appeared to me that Mr. Stoughton fell upon his hip; his 
 egs appeared to fly up, and his head upon the pavements. 
 
 Q. YVas the blade of that instrument concealed ? 
 
 A, It was apparent all the time. 
 
 Q. Might not that have been the cause of his retreat? 
 
 A. I think it probable that it was. 
 
 Emmet. Is not this asking opinions of witnesses ? 
 
 The Mayor. \ ou have all along, upon that point, been asking 
 (pinions. The whole cross-examination has been to that effect. 
 Juror. What was the cause of Mr. Stoughton’s falling ? 
 
 A. I cannot say. 
 
 Juror. We w’ish to know, whether at the same instant that Mr, 
 itoughton fell, Mr. Goodwin fell also ? 
 
 A. It was at the same instant: but Mr. Goodwin was not down so 
 s to lose his balance. 
 
 Q. Were there blows just at the time of the fall ? 
 
 A, There were. 
 
 The Mayor. Was Mr. Goodwin off his feet at any time ? 
 
 A. He was not. 
 
 Hoffman. Where did he serve as a military man ? was it not with 
 en. Jackson at New-Orleans ? 
 
 Some debate arose upon the propriety of this question. 
 
 The Mayor. I do not see that this question is improper. If you 
 iter into such inquiries on the one side, it is open to the other ; 
 ough I cannot see what it has to do with the case. 
 
 Juror. Did vou see Mr. Goodwin give Mr. Stoughton any blows 
 'ter he fell ? 
 
 A. 1 did not see any blows. 
 
 Q. Did you see him slap him on the cheeks, as another witness 
 lis said ? 
 
 A. 1 did not see it. 
 
 Q. If he had struck him with the head of the cane, would not you 
 1 ve seen it ? 
 
 A. I must then, I think, have seen it, for he could not have drawn 
 1; hand to strike with the dagger without my seeing it. At least, I 
 sapose, I must have seen it. 
 
 Fifteenth Witness for the Prosecution — Dr. Wright Post. 
 
 EXAMINED BY WELLS. 
 
 Witness. I was called to see Mr. Stoughton, but he expired the 
 nment I arrived : I approached the counter on which he lay, and 
 so' the wound. 
 
 Did you probe it ? 
 
 I. I did not examine it, 
 
96 
 
 Q. Suppose that wound had been indicted with an instrument oi 
 this kind, (showing it) and passed through the breastbone, could 
 that have been done by a man of ordinary strength ? 
 
 Emmet. 1 object to that, not only as a master of opinion, but as a 
 matter which cannot be answered, but with reference had to the 
 circumstances and relative position of the parties ; and, skilful as 
 Doctor Post may be in anatomy, he cannot tell what the musculat 
 force of a man can effect, till he knows and considers in what posi j 
 tion he stands, and in what manner it is to be employed. 
 
 Wells. They have led the way to these inquiries, and set us tin 
 example : when it was for their advantage, the gentlemen found i 
 proper ; when it turns against them they think it improper. I onhl 
 ask, whether there is any thing to prevent that instrument Iron 
 producing that effect ? 
 
 Emmet. It cannot be necessary to ask a doctor whether a dagge 
 can penetrate into a man’s body. There has been too much expe 
 rience of that. 
 
 Hoffman. The testimony of Dr. Mott came out from the exami 
 nation of Mr. Van Wyck. (Mr. Hoffman here read from his note 
 to confirm the assertion.) After he had given this testimony o. | 
 his examination in chief, we only pursued the inquiry. 
 
 The Mayor. We may call physicians to tell us, if it become 
 material, what obstruction the weapon would meet with in takin 
 its course through a rib, breastbone, &c. ; that depends upon tech 
 nical knowledge, and falls under their province. If they conli 
 tell us the force by mechanical calculation, as so many pound; 
 &.c. it might lead to the solution of a problem. But we have n 
 such measure. But when we ask an anatomist whether the ord 
 nary muscular force of a man would be capable of driving 
 given instrument through a given part or parts of the human bod* 
 it seems to me a technical question. When 1 spoke of the court 
 interposing, it was when the counsel were placing the parties i 
 certain situations, and raising suppositions of what the parties migl 
 have done, if placed so and so, to answer which a fencing mash 
 would be fully as competent, or indeed any other person. And 
 matters not who began it, or upon whose side it came out. It hi 
 gone on by consent, neither party objecting ; and it was impossib 
 to stop what was but an answer to the opposite party. 
 
 Q. What impediment then, Doctor Post, might an instrument 
 that kind meet with, passing between the ninth and tenth rib, ar 
 splintering a part of one of them, and transfixing the heart, and ii 
 denting the breastbone ? 
 
 Jl. The difficulty would be very little, except in touching the ri 
 All the other parts are soft and yielding, and very easily separate 
 There is little resistance except by the bone. 
 
 Q. Could the resistance of the rib be overcome by the force of 
 man of ordinary muscular strength ? 
 
 The Mayor. Suppose there should prove to be a small fracture 
 passing, and the lower end of the rib broken off ? 
 
97 
 
 fl. I should suppose the point of the instrument might take off a 
 small part and penetrate the breastbone. There would be little re¬ 
 sistance by the rib, and not much obstruction from the breastbone, 
 which is of a much softer texture. 
 
 Emmet. If you took away a part of the rib, would not that create 
 a constant or continuing impediment ? 
 
 Jl. If it was only upon the side or edge of the rib, the moment 
 She part is detached, it is, as to any further resistance or to any new 
 force, as if it had not touched it at all. 
 
 i Q- Would it not make a groove through which it must run ? 
 
 A- I think the difficulty is so little as not to be computed. 
 
 Q. Where was the wound, was it not near the backbone ? 
 
 A- I saw him expiring, and looked little further ; a person un- 
 ;overed the wound, it was nearer the back than the exterior part, 
 )ut the moment the clothes were raised, the wound presented itself 
 ,o me, so that it did not require any moving of the body. 
 
 Q. Would not one who examined it have been better able to de¬ 
 scribe the situation of it ? 
 
 A. I think not, I had a very distinct view of it. 
 
 Sixteenth Witness for the Prosecution—Abraham Fervcden. 
 
 Being desired by Mr. Fan Wyck to relate what he knew, this 
 fitness stated that he lived in Bergen county ; that he accident¬ 
 ly saw the afiray ; that when he first saw the parties meet 
 le was right opposite in Broadway, on the east side. He saw- 
 hem meet each other and take a round or two, and saw one gentle- 
 lan fall. * 
 
 Q. Did you see any thing in the hand of either J 
 A. Yes. 
 
 Q. What did it appear to be ? 
 
 A. It appeared first to be a cane. 
 
 Q. In whose hand was it ? 
 
 A- It appeared to be in Mr. Goodwin’s hand. 
 
 By a member of the Court. How do you know it was Mr. Good- 
 fin ? 
 
 A. The man who had it went away, and the other who was killed 
 was told was Mr. Stoughton. 
 
 Q. Did the cane separate ? 
 
 A. I do not know whether it parted, or whether he drew it, but 
 separated, and the dirk part he kept in his hand. 
 
 Q. Did he continue striking after he had the dirk part in hi® 
 
 land ? 
 
 A. He did. 
 
 Q. Did he strike with the dirk part at all ? 
 
 A. Yes. 
 
 Q. Show how ? 
 
 i Witness. (Clubbing it and striking over hand) This way, 
 
 Q. Did 3 'ou see when Mr. Stoughton fell ? 
 
 A. Yes, I saw him fall. 
 
 Q* Did you see the dagger thrown away ? 
 
 13 
 
98 
 
 A. I saw it fly out of his hand. 
 
 Q. Where did it go to ? 
 
 A. It flew oft' some distance, perhaps eight or ten feet. 
 
 Q. At what time, or in what part of the controversy was that ? , 
 
 A. It was after Mr. Stoughton fell. 
 
 Q. Do you recollect which way it flew from him ? 
 
 A. They were then in Courtlandt-street. It’flew about a north¬ 
 west course from where they were, pretty near the centre of the 
 street ? 
 
 Q. Was this after Mr. Stoughton got up ? 
 
 A. Yes, it was after he made the attempt to rise. 
 
 Q. Had he got up before Mr. Goodwin threw away the dagger* 
 
 A. He had made an attempt. 
 
 Q. Was there any one then helping him ? 
 
 A. Not at that time. 
 
 Q. Where did you see these two gentlemen first ? 
 
 A. On the walk in Broadway. 
 
 Q. Did you go over, and were you with them all that time ? 
 
 A. I stood by. I went as soon as 1 could get across the street. 
 
 Q, Were there many persons ? 
 
 A. A great many. I did not know any of them, except onfl 
 Briggs, from our place, who was with me. 
 
 Q. Did you see that gentleman ? (showing Mr. Clark.) 
 
 A. I do not know. 
 
 Q. Did you see the prisoner strike Mr. Stoughton when he wa- 
 down ? 
 
 A. I did. 
 
 Q. In what manner did he strike him ? 
 
 A. That way. (holding by the handle.) 
 
 Q. You never then saw him hold the blade and strike him with it 
 
 A. No, sir, I did not. 
 
 Q. Were you not sorry-to see a man so struck and beaten—Di< 
 not you interfere at all ? 
 
 A. I did not interfere. 
 
 .Here one of the jurors (Mr. Seaman) asked leave to speak witl i 
 his clerk, w hich was by consent of parties granted ; but his clerl ! 
 came to the bos, and spoke in the hearing of his fellow jurors an' 
 others present, Mr. Seaman not leaving the jury box. 
 
 The Alayor here called the attention of the counsel, before th 
 cause proceeded farther, to the point, whether, supposing the jur 
 vhould believe that this wound was not given by a stab, but by con 
 sequence of some violence after the contest began ; as from a fal : 
 occasioned by a blow or other violent act of the prisoner ; an 
 taking it for granted that such an act would be manslaughter, ye 
 would such proof support the allegation in this indictment as to th 
 manner of the death ? In the case cited yesterday, of the on 
 holding the pitchfork and the other rushing on it, it is presume 
 ble the manner of the death w'as laid as it was proved. 
 
 The cause then proceeded. 
 
99 
 
 Seventeenth Witness for the Prosecution—Major Richard Smith. 
 
 Emmet desired to know what it was intended to prove by this 
 witness. 
 
 Van Wyck. To identify the swordcane and show how the pr; 
 soner came by it. 
 
 Q. By Van Wyck. Do.you know that swordcane, sir? 
 
 A. Yes, sir, it was once in my possession. There was an ex¬ 
 change of sticks between Mr. Goodwin and myself. I was dining, 
 accidentally, at the City-Hotel, on the Monday preceding this affray. 
 Not being there with any person in particular, 1 discovered, during 
 dinner, that Mr, Goodwin was at the table, but ten or twelve from 
 me, on my right, sitting at the eastern end of the table, next to 
 Broadway. As the company went off during the afternoon, whilst 
 1 was sitting with a bottle of w'ine before me, Mr. Goodwin and his 
 friends collected towards the end of the table where I was sitting. 
 During the afternoon we sat and drank, Mr. Goodwin and several 
 other gentlemen. We drank about half a dozen bottles of wine 
 between four or five of us. A variety of conversation took place 
 at table, and about candlelight, or after sundown, some gentlemen 
 talked of going to the Theatre ; and Mr. M‘Crea came in and sat 
 between me and Mr. Goodwin. I got up and had my hat in my left 
 hand, and my stick in my right. 1 had my foot up on the chair. We 
 proposed meeting at the Theatre at nine o’clock. Whilst standing- 
 in that position, and laughing at some little conversation that passed 
 about the dinner table, Mr. Goodwin, probably from seeing this 
 stick, proposed an exchange of sticks, to which, after some tri 
 fiing observation, such as that it was a favourite stick, I assented. 
 Mr. Goodwin, on seeing it, had held out his hand for it, so i 
 passed it to him. lie said, there is my stick on the sideboard, and 
 I will keep yours as a keepsake. 1 observed that it opened too 
 easily, and that he should keep the string tight round it. The one 
 I had from him was smaller, but it had no sword in it ; it was a 
 common walking stick, with a head mounted pretty much like this. 
 Having exchanged canes, we all got up and separated. We left 
 the dining table ; myself, Mr. M‘Crea, Mr. Goodwin, and Mr. 
 Sheldon. The whole of this conversation took but little time, 
 perhaps four or five minutes, and it was a mere accidental c ire urn 
 stance, little thought of by me, or, as I believe, by Mr. Goodwin, 
 
 Cross-examined by Hoffman. 
 
 Q. You have known Mr. Goodwin some time, sir? 
 
 A. I have known him from his infancy : I have been acquainted 
 with his family as well as with himself. 
 
 Q. This cane, you say, was asked of you merely as a memorial 
 or a keepsake ? 
 
 A. Entirely so. It was as unthought of till the moment by him 
 as by me. 
 
 Q. When he asked you for it first, did he know it was a sword- 
 cane ? 
 
100 
 
 yt. I have visited him frequently 'when he was confined ; he 
 might have seen the cane, and he might or might not know it had a 
 sword in it. 
 
 Van Wyck. Had he any opportunity of knowing that there was a 
 sword in it ? 
 
 A. I have frequently visited him, but I do not know that he ever 
 law the sword, or that it ever was in his hands before. 
 
 Here the prosecution rested. 
 
 EVIDENCE FOR THE PRISONER. 
 
 On behalf of the prisoner was sworn — Win. L. Rose. 
 
 Mr. Rose stated that he had seen the cane produced at the in¬ 
 quest of the coroner; that it had leather strings attached to it, 
 which this has not. But after a short explanation, the identity of 
 the instrument was admitted. 
 
 Mr. Wilder recalled , and examined by Emmet. 
 
 Q. Have you any recollection of having seen a dagger like that, 
 lying on the ground near Mr. Stoughton where he lay ? 
 
 A. I did see a dagger similar to this, within a moment or two after 
 they were separated, and my impression is that it was upon the 
 ground. If I did see it on the ground, it was near where the 
 parties were. It is possible it may have been in some person's 
 hapd; but my impression is, that it was on the pavement. That 
 is my prevalent impression, that I saw it on the pavement after the 
 parties had risen, and after they were separated, after Mr. Stoughton 
 was raised up, and, I think, when he was leaning on the person’s 
 shoulder* 
 
 The Mayor. I think you said, when you was examined before, 
 that you could not tell whether it was in the hand of some person, 
 or on the ground ? 
 
 Emmet. Can you answer with more precision now, whether you 
 saw it in the hands of the prisoner ? 
 
 A. I am by no means positive. But I think not. The most I 
 saw of the prisoner was when he was looking for his hat. He had 
 then a hat in his hand. 
 
 Witness for the Prisoner — James W■ Lovett, one of the keepers of 
 
 the Prison. 
 
 Witness stated that he saw the prisoner the next morning after 
 his commitment, and that there was a mark under his eye, which 
 seemed swollen and bloodshotten. 
 
 Van Wyck now offered testimony to prove the declarations of the 
 prisoner, that he intended to insult Mr. Stoughton ; and that if Mr. 
 Stoughton attacked him in consequence of that insult, he should use 
 his cane to him. 
 
 Hoffman. As 1 understand the testimonj r offered now, we object 
 to it: because it would lead to inquiries that would be endless, d he 
 court will see that the previous declarations, even if once made, 
 may have been afterwards abandoned ; and ii they should come now 
 before the court isolated, they might fix upon the prisoner inten- 
 
101 
 
 !$ons which he had explicitly disavowed : but which disavowal and 
 change of intention, he could not be prepared to prove. The gen¬ 
 tlemen offer to show antecedent expressions ; if they may prove 
 -expressions of yesterday, they may prove by the same rule, others 
 ever so remote. 
 
 Griffin. We here offer to show certain declarations not longer ago 
 than the day before, as to what he intended to do in case he met 
 Mr. Stoughton, 
 
 Hoffman. The charge is manslaughter, which in itself must be 
 considered to arise on a sudden from the immediate provocation and 
 the heat of passion at the moment. Now to give a new character 
 to this act, and try us upon a charge of murder, which we cannot be 
 prepared to meet, is against the first principles of law. We come 
 here to answer to the transactions of that day and that hour, not to 
 rebut other charges. We were obliged to meet the witness as to 
 what happened at the time he struck with the sword blade, because 
 it made part of the transaction. But if these declarations amount to 
 any thing, it must be where the charge is murder, and the malice 
 prepense is essential. If the prisoner had been indicted for murder, 
 we might have been prepared to obviate all possible charges of 
 malice aforethought. In Selfridge's Trial, Chief Justice Parker 
 confined the prosecutor to the very transaction, and it was by con¬ 
 sent that they went into the circumstances between the parties. 
 Suppose, for argument, that Mr, Goodwin had first expressed an in¬ 
 tention to insult Mr. Stoughton, and had insulted him, and Mr. 
 Stoughton had declined going into explanation or giving satisfaction, 
 anti then the prisoner had said, 1 will now have no more to do 
 with him. It would be hard that his first declarations should be pro- 
 vedj when his after declarations could not, because ofthe surprise. 
 
 Wells. As this appeared before the inquest, we thought it our 
 duty to offer it, but we do not mean to press it. 
 
 The Mayor. Then if you do not think it material, I would rather 
 not give an opinion upon it. A court should be cautious in such 
 cases of volunteering opinions not called for. 
 
 Van Wyck. I would willingly waive the testimony if it depended 
 entirely upon me : although I must say, that it will have some 
 bearing on the question, and I cannot waive it so as to admit, that 
 the intent is immaterial to this cause. 
 
 Emmet. I do not deny, that if a party is indicted of manslaughter, 
 and in the course of the trial the facts growing out of the transac¬ 
 tion would make it murder, inasmuch as they are part of the res 
 gestae, they must be given in evidence ; but when they attempt to 
 give matters not growing out of the transaction, nor essentially 
 characterizing it, I conceive they are irrelevant and inadmissible. 
 What is the prisoner to be prepared to meet ? The facts stated 
 in the indictment. He is not supposed to be gifted with the 
 spirit of prophecy, nor to conjecture or foresee things not in the 
 indictment, which is the textbook. If it is stated that he, of malice 
 aforethought, did the act, then that word would apprise him that 
 malice aforethought was charged against him. When the indict 
 
102 
 
 ruent is without that, he dismisses from his nund all consideration 
 relating thereto, and all evidence touching that takes him by sur¬ 
 prise : he finds a ueiv character, and a different one, in the middle 
 of the trial, given to the otle'nce, which of course he is unprepared 
 to rebut. It is a rule held sacred, that a man in the situation of my 
 client is to be apprised of every thing that he is bound to answer to, 
 and not when his person is imprisoned and his mind ruffled and 
 troubled, to be called upon on a sudden, to rebut, by evidence, 
 facts of which he had no notice. He should know every thing 
 that is to be brought against him before he comes to trial, when 
 his mind is cool, and when he can weigh the matter and collect 
 his thoughts ; and not be attacked, if I may use the phrase, by an 
 ambuscade of evidence not appearing on the record. There is no 
 question that the testimony now offered, if it can have a bearing on 
 the act of the party, can only be to change manslaughter into mur¬ 
 der ; for it can have no bearing to alter the offence charged if it was 
 accidental, and the antecedent quarrel cannot alter the matter one 
 way nor the other, as long as it is a trial for manslaughter. 
 
 Mr. Emmet enlarged upon this, and spoke particularly of one wit¬ 
 ness who had gone upon pressing business to the Havana, as soon 
 as it \yas known that the prisoner was only charged with manslaugh¬ 
 ter, and was told that his evidence would be unnecessary ; but who 
 would have staid, at every risk and loss to his own private fortune, 
 had not this been understood : that the court knew, also, that in 
 this case, the witness could not be examined out of court. If a 
 declaration of a day before would alter the transaction, so would 
 one of a year before, and my client must be prepared for all ; and 
 from the oracular language of the counsel, this appears as but an 
 entering wedge. A day, a month, a year, are all equal upon prin¬ 
 ciple, and then we see what a floodgate is thrown open to let in 
 charges impossible to be answered. Whatever makes a part ol'the 
 crime charged is evidence; and though.it tends to convict, we 
 cannot object to it. But w here the matter is not a necessary in¬ 
 gredient to make it either manslaughter or any other kind of homi¬ 
 cide, it is inadmissible. I invoke the salutary principles and rules 
 of law laid down in the trial of Selfridge, ns the shield with which 
 the law protects the accused, when his life, his liberty, or his cha¬ 
 racter is attacked. 
 
 The Mayor . I have given a previous intimation on this point: hut 
 made up no opinion, being free to alter my views upon hearing 
 sufficient argument. But 1 must regret that 1 am obliged to differ 
 with the counsel ; l must say that 1 do not find this decided in .S cl- 
 fridge's case. The matter was talked over by the court and the, bar, 
 and the court gave no opinion. The counsel agreed upon condition 
 that the evidence should go no further than to the point in discus¬ 
 sion, and there was no other decision. I can find no direct autho¬ 
 rity, and I think the counsel must have found none. We must 
 then go upon general principles. It is impossible, in a court con¬ 
 stituted like this, to have consultations upon every point. 1 there¬ 
 fore give my opiniou : 
 
103 
 
 The prisoner is indicted for manslaughter, and here has been 
 ■ompetent evidence to prove the fact, that the deceased came by .his 
 ieath through the instrumentality of the prisoner. The charge is 
 manslaughter, and when the death is proved to be by his agency, 
 t is for him to bring forward his justification or excuse. The def¬ 
 ence here must be, either excusable homicide per infortunium , oc 
 hance-medley, or self-defence. All the testimony must go to the. 
 ne or the other of these. And such must be the testimony offered 
 y the prisoner, if it be once admitted that he killed the deceased, 
 r if there be evidence enough to put him upon his defence on that 
 oint. Then he says : “ True it is I killed that man, but it was the 
 esult of a sudden affray in which 1 was attacked.” The prosecu- 
 >r rebuts this defence, by showing that it was a premeditated one ; 
 nd to this end, they offer the prisoner’s conversation of the day 
 ,efore : and I do not think it makes much difference whether if 
 as a day or a week before. If it is to be determined by dividing oi 
 me, the jury must say what will be the effect of the distance of 
 le time, as they judge of all other circumstances. But I cannot, 
 anceive that, because this gentleman is not indicted for murder, 
 ley may not show that it was in consequence of a premedita- 
 d design. Suppose, for argument sake, the fact to be, that the 
 ■isoner prepared himself for this rencounter ? Suppose Mr. Stough- 
 n should have told irs that the night before, or only a few hours 
 ifore, the prisoner had obtained this cane, telling the witness that 
 3 wanted to chastise Mr. Stoughton with that very instrument: 
 it possible that such declarations could not be received when tlu- 
 :fence set up is, that it was a sudden affray ? If they can show that 
 : had prepared himself for this thing, and had armed himself for 
 <e purpose, 1 cannot conceive the evidence to be improper, merely 
 1 cause it is an indictment for manslaughter. I think the indictmenr 
 apprise him of his defence, though it did not put him upon trial 
 ir murder ; he knew that he was charged with feloniously killing, 
 id that he was to rebut that charge. The distinction cannot be 
 s strong as the counsel insist: for, supposing the charge to be 
 nrder, it would not of necessity follow even then, that he was to 
 ibut the allegation of malice prepense ; it would depend upon hi? 
 cm knowledge of the facts. And it did not follow that the prose¬ 
 ctor would, or would not, produce evidence of the aforethought 
 cilice, for it might or might not be implied from the nature of the 
 t.nsaction, and evidence of premeditation might or might not be. 
 g en. He therefore was to be prepared or not, as he thought fit 
 tconsider his own case; and it wbuld not surprise him less or 
 n re than this does now. My individual opinion is, that the offer 
 nde is proper : that is, to show by his declaration of the daj r before, 
 ti t he had contemplated a rencounter with Mr, Stoughton. 
 
 Emmet referred to several passages in the trial of Mr. Selfridge , 
 al expressions used by Chief Justice Parker. 
 
 The Mayor understood those expressions as applying to the con- 
 hversy beteveen Mr. Selfridge and Mr. Benjamin Austin, and not 
 allying to this question. But after consulting the other members 
 
104 
 
 of the court, he said, it was the opinion of the court that this evf 
 dence would be improper. 
 
 Griffin then offered evidence of declarations and acts of the pri 
 soner on the day of the rencounter, hut was overruled, because it fel 
 under the same principle on which the former had been refused. 
 
 Doctor Schieffelin w as called again to show that he had, when try 
 ing the wound with the instrument, cut off the leather strings. Thi 
 was to obviate any objection as to its identity. 
 
 Mr. Clark was also recalled and asked at what precise momcr 
 he saw the cane. 
 
 Witness. 1 came in between them and separated them, and tbl 
 other person, as I have said, caught the deceased as he was aboi 
 to fall. It was at that time when Mr. Goodwin and I stood side b 
 side, that I saw the dagger in his hand. When Mr. Stoughton fe 
 back I kept my position long enough to exchange looks with th 
 prisoner. I did not see the dagger afterwards till the time the bod 
 was examined. 
 
 The Mayor. In what manner did he hold it ? 
 
 A. Carelessly, thus, (showing.) When Mr, Stoughton faintei 
 and I saw another person catch him, l turned to Mr. Goodwin 
 my right shoulder near to his left ; and that was the only time i 
 saw it. I should be willing, if it be proper, now to add anotln 
 circumstance that escaped my recollection. When the prison! 
 knocked the deceased down, he followed, from the force of h 
 own blow', as it appeared to me, bending from his hips, and wept c 
 the sidewalk, stooping with the blow he had given with his rigl 
 hand. 
 
 A Juror. You saw no dagger then in his hand at the time of b 
 first fall ? 
 
 A. No. The first time I saw it, was after Mr. Stoughton ros 
 when Mr. Goodwin stood beside me. The weight of his own bio 
 forced him forward so that he stepped into the gutter. My impre 
 sion is distinct that the blow was with the right hand. And my r 
 collection is pretty clear that it was a blow on the head with the li: 
 
 I was then about as far distant as the width of Courtlandt-stre! 
 
 I was upon this corner and they on the other. The only twobloi 
 that 1 saw, were, first a blow from Mr. Goodwin to Mr. Stoughto 
 which knocked him down, and that which Mr. Stoughton returm 
 when he rose. Mr. Stoughton fell nearly at full length, but 1 thii 
 he saved his head by taking the force of the blow upon his liij 
 His second fall was not far from where we stood. Whether on 1 
 second fall they let him dow'n at full length, or his knees only ga 
 way, I cannot say. Nor can I recollect the very spot in which ’ 
 fell the second time, but by conjecture from where he fell the til 
 time. For at the moment of his second fall my attention nfl 
 first turned to Mr. Goodwin, and afterwards, when Mr. Stought " 
 fell, 1 thought more of his condition than his position. 1 shou j 
 suppose it was eight or ten feet from the corner of the curbston 
 
 The Mayor. Do you speak of his feet being so far distant ? 
 
105 
 
 A. I have no recollection of his body lying at full length the 
 second time. The first time he fell at the angle of about fo°rty de¬ 
 grees over towards the opposite corner. 1 do not think they suffered 
 him to lie down the second time. The second time he was facing 
 the corner opposite which he fell. I think the second time when I 
 turned trom Mr. Goodwin, he was raised, or attempted to be raised. 
 But he was never on his back the second time. 
 
 Mr. Griffin. Before the counsel for the prisoner proceed to ad¬ 
 dress the jury, 1 will read, from books of authority, some further 
 principles and cases upon which we expect to relv. 
 
 Fosters Introduction to the Discourse on Homicide , § 1. p. 255^ 
 In eveiy charge of murder, the fuct of killing being first proved, all 
 he ciicumstances ot accident, necessity, or infirmity, are to be 
 satisfactorily proved by the prisoner, unless they arise out of the 
 Bvidence produced against him ; for the law presumeth the fact to 
 lave been founded in malice, until the contrary appeareth. And 
 'ery right it is that the law should so presume. The defendant, in 
 his instance, standeth upon just the same foot that every other de¬ 
 fendant doth : the matters tending to justify, excuse, or alleviate, 
 ,iust appear in evidence before he can avail himself of them.” 
 
 To show that wherever the defence of accident is relied on in a 
 ase of homicide, it must appear that the person committing the 
 omicide was not engaged in an unlawful act, or using an unlawful 
 weapon. I will read to you from 1 Hazvkins, 111. ch. 29. § 1. “ And 
 rst of homicide per infortunium, or by misadventure, which is, 
 /here a man in doing a lawful act, without any intent of hurt, un- 
 irtunately chances to kill another.” 
 
 East, in treating upon homicide in the prosecution of some act or 
 urpose, criminal or unlawful in itself, wherein death ensues, col- 
 iterally to or beside the principal intent, vol. 1. ch. 5. § 31, 32, 
 bserves : 
 
 1 say, collaterally to or beside the principal intent, in order to 
 istinguijo this kind of homicide from that before treated of Hnder 
 le general head of malice aforethought, where the immediate and 
 ading purpose of the mind was destruction to another.” 
 
 And first, it is principally to be observed, that if the act on 
 hich death ensue be malum in se, it will be murder or manslaugh- 
 r, according to the circumstances : if done in prosecution of a 
 lonious intent, however the death ensued against or beside the 
 tent of the party, it will be murder; but if the intent went no 
 ither than to commit a bare trespass, it will be manslaughter. As 
 here A shoots at the poultry ot B, and by accident kills a man : if 
 s intent were to steal the poultry, which must be collected from 
 ircumstances, it will be murder, by reason of that felonious intent; 
 lit if it were done wantonly and w-ithout intent, it will be barely 
 linslaughter. A whips an horse on which B is riding, whereupon 
 fe horse springs out and runs over a child and kills it: this is man* 
 Jiughter in A, but misadventure in B.” 
 
 14 
 
, “ He who voluntarily, knowingly, and unlawfully intends hurt t» 
 the person of another, though lie intend not death, yet if death en¬ 
 sue, is guilty of murder or manslaughter, according to the circum¬ 
 stances, As, if A intending to beat B, happen to kill him, if done 
 from preconceived malice, or in cool blood upon revenge, it will 
 be no alleviation that he did not intend all the mischief that follow¬ 
 ed.” 
 
 Foster, Disc. 2. ch. 1. s. 1, 2, speaking of homicide occasioned 
 by accident, says : “ In order to bring the case within this descrip¬ 
 tion, the act upon which death ensueth must be lawful. Foi if the 
 act be unlawful, 1 mean if it be malum in se, the case will amount 
 to felony, either murder or manslaughter, as circumstances may 
 vary the nature of it. If it be done in prosecution of a felonious 
 intention, it will be murder ; but if the intent went no farther 
 than to commit a bare trespass, manslaughter. Though 1 con¬ 
 fess Lord Coke seemeth to think otherwise. “ He (saith the 
 learned judge) that voluntarily and knowingly intends hurt to the 
 person of a man, though he intend not death, yet if death en¬ 
 sues, it excuseth not from the guilt of murder, or manslaughter 
 at least—as if A intends to beat B but not to kill him, yet il 
 death ensues, this is murder or manslaughter, as ihe circumstance! 
 of the case happen.” 
 
 1 East, ch. 5, § 42. “ And therefore in Ward’s case, who wai 
 
 challenged to tight by his adversary for a public trial of skill in box 
 ing, and was also urged to engage by taunts, although the occarioi 
 were sudden, yet having killed his opponent, he was holden guilt) 
 of manslaughter.” 
 
 Wherever a person uses an unlawful weapon or instrument, thi 
 law considers him as doing it at his peril. 
 
 1 East, ch. 5, § 37. “ Thus parents, masters, and other person 
 having authority in foro domestico. may give reasonable correctioi I 
 to those under their care ; and if death ensue from such correction I 
 it v.’ill be no more than accidental death. But if the correction ex 
 ceed the hounds of due moderation, either in the measure of it, o 
 in the instrument made u.-e of for that purpose, il will be eithe 
 murder or manslaughter, according to the circumstances. If don 
 with a cudgel, or other thing not likely to kill, though improper fo 
 the purpose of correction, it will be manslaughter: if with a dac i 
 gerous weapon, likely to kill or maim, as a pestle or great staff, 
 will be murder : due regard being had in both instances to the ag 
 and strength of the party. Grey, a blacksmith, struck his servai 
 with a bar of iron, by way of correction for improper behavioui 
 bv which lie was killed ; held murder. A woman kicked an 
 stamped on the belly of her child ; and ruled the same.” 
 
 “Yet though the correction exceed the hounds of moderation 
 yet the court will pay a tender regard to the nutnre of the pri * 
 vocation, when the act is manifestly accompanied with a good inten 
 and the instrument not such as must, in all probability, occasic 
 death ; though the party were hurried to great excess. As wi J 
 the case of a father, whose son had frequently been guilty of stea 1 
 
107 
 
 ing, complaints of which had come to the father, who had often 
 corrected him. At length the son being charged with another 
 theft, and resolutely deriving it, though proved against him, the 
 father, in a passion, beat his son with a rope by way of chastise¬ 
 ment for the offence so much, that he died. The father expressed 
 the utmost horror, and was in the greatest affliction for what he 
 had done, intending only to have punished him with such severity 
 a* to have cured him of his wickedness. The learned judge who 
 tried the father; consulted his colleague in office and the principal 
 counsel on the circuit, who all concurred in opinion that it was 
 only manslaughter : and so it was ruled.” 
 
 1 East, ch„ 5. § 41. “ Upon this distinction as to the nature of 
 the weapon, Sir John Chichester's case seems to have turned, who 
 unfortunately killed his man-servant as he was playing with him. 
 Sir John passed at him with his sword in the scabbard, which the 
 latter parried with a bed-staff. In the heat of the exercise the 
 chape of the scabbard Hew off, and the servant was killed by the 
 point of the sword. Mr. justice Foster thinks, in conformity with 
 Lord Hale, that there was evidently a want of common caution in 
 making use of a deadly weapon in so violent an exercise, where it 
 was highly probable that the chape might be beaten off, which 
 would necessarily expose his servant to great bodily harm. It was 
 therefore rightly adjudged to be manslaughter.” 
 
 Wherever a person designedly provokes a quarrel, he will 
 be considered the aggressor in that quarrel, though he may 
 have induced the other party to strike the first blow. (1 East, 
 ch. 5, § 43.) *• In no case, however, will the plea of provocation 
 avail the party, if it were sought for and induced by his own act, in 
 order to afford him a pretence for wreaking his malice. As where 
 A and B having fallen out, A says he will not strike, but will give 
 B a pot of ale to strike him ; on which B strikes, and A kills him : 
 this is murder.” 
 
 “ And in all cases of provocation, in order to extenuate the of¬ 
 fence, it must appear that the party killing acted upon such provo¬ 
 cation, and not upon an old grudge, for then it would amount to 
 murder.” 
 
 To the same purport is 1 Hale's Hist. P. C. p. 457. 
 
 When Mr. Griffin concluded, some discussion took place about 
 the propriety of adjourning ; but one of the jurors requested that 
 Mr. Maltby Weed should be recalled, and that he might be asked 
 a few questions ; which was granted. 
 
 Juror. When Mr. Stoughton was lying on the ground, and you 
 saw the dagger on the ground, how far was it from him—was it a 
 foot ? 
 
 A. My memory does not serve me exactly. It was very near 
 him when he lay the first time on the ground. 
 
 The Mayor wished it to be understood, that when the court ad¬ 
 journed the testimony should be closed, otherwise the court would 
 
103 
 
 ait till twelve o’clock, or till it was gone through. It being so un¬ 
 derstood by both parties, the court adjourned at 5 o’clock, P. M. 
 
 FOURTH DAY.—FRIDAY, MARCH 17, 1820. 
 
 The Court met at half past 11 o'clock A. M. 
 
 PRESENT AS BEFORE. 
 
 Proclamation being made, and the jury called and answering to 
 their names, the counsel for the prisoner proceeded to sum up the 
 evidence. 
 
 Ogden, for the Prisoner. 
 
 1 rise, gentlemen of the jury, to sum up the evidence in this 
 cause, overwhelmed with such feelings as I never before experi¬ 
 enced. The circumstances of the case are so extraordinary, and 
 the fact laid to the charge of the unfortunate young gentleman who 
 stands accused before you, and whom 1 stand here to defend, was at¬ 
 tended with circumstances so shocking and so horrible, so calcula¬ 
 ted to make a deep impression upon the hearts and minds of every 
 citizen in this community, that rising to address you on behalf of 
 the accused, 1 should be inexcusable if I did not feel the weight of 
 my task, and the possibility that, however innocent the prisoner 
 at your bar, yet that he might be convicted. 
 
 You are all but men, and in a case too well calculated to inflame 
 the passions and prejudices of men, what man can say that his judg¬ 
 ment will remain clear, unclouded, or unbiassed ? I own that, 
 though I believe this defendant innocent, I fear that he may be con¬ 
 victed ; because I know, from my own feelings, and from sad ex¬ 
 perience, that when my passions, prejudices, or feelings, have been 
 once strongly excited against an individual, I cannot afterwards con¬ 
 template his case with candour. 
 
 1 can only therefore call upon you by all that is most precious to 
 you, to keep a watch on your own frailty, and to decide between 
 the people and the prisoner with impartiality. The fact which 
 gave rise to this prosecution, the dreadful consequences of that 
 fact, the manner in which the unfortunate man met with his end, 
 are such as to arouse the strongest feelings in the mind of every 
 one who has heard the story fly from mouth to mouth. It is impossi¬ 
 ble it should be otherwise. 
 
 Gentlemen, it is not for me to pass an eulogy on the character of 
 the deceased, and it is far from my intention to say any thing against 
 him : he is gone, I hope, to a better and a happier world. For his 
 parents 1 feel every thing: would it were possible for me to pour 
 the balm of consolation into their almost broken hearts. But I 
 shall never cease to regret that the misfortune of Mr. Stoughton s 
 family had not given rise to better feelings down to the present 
 moment. I shall ever regret that their hearts, softened by their 
 sufferings, had not sought consolation where it was to be found, ra¬ 
 ther than in vengeance against this unhappy man who stands before 
 you at your bar ; for no effort has been omitted to excite the pub- 
 
109 
 
 lie indignation against my client, to hold him up to the world as a 
 murderer, and take his life through the instrumentality ol a court 
 of justice. 
 
 Can it afford any comfort to the friends of Mr. Stoughton that 
 this young man should be convicted ? Will it restore him to their 
 arms ? Will they feel his loss the less ? No, gentlemen. But this de¬ 
 fendant has parents and friends also ; an ancient, venerable, respect¬ 
 ed, and beloved mother: must her heart too be broken ? will that 
 relieve the feelings of Mr. and ofMrs. Stoughton ? Their son is gone 
 with a character unblemished and undisgraced ; they can still de¬ 
 rive consolation fro#i the knowledge that he died undegraded. 
 Convict this defendant, send him to the state prison, and to his mo¬ 
 ther’s heart the hand of an assassin would be that of a beneficent 
 deliverer. But 1 fear my feelings are leading me further than l 
 ought to go, and further than 1 intended. 1 shall, 1 hope, be able to 
 take a candid, /'air, and impartial view of the testimony in this 
 cause. 1 wish to assist you in the consideration of that testimony, 
 by such arguments as I can offer, and it is not my intention, if it 
 were in my power, to stir your passions. 
 
 Permit me here to ask, what is the question you are to decide upon ? 
 Because, before we proceed to examine the evidence, it is neces¬ 
 sary you should have a clear view ol the question to which it is ap¬ 
 plicable. The grand jury have found a bill against this defendant, 
 for that he with a certain drawn dagger or sword, which he held in 
 his right hand, in and upon the left side, near the ninth rib of Mr. 
 Stoughton, did thrust, stab, and penetrate, giving the deceased a 
 mortal wound. To this charge, the defendant pleaded he was not 
 guilty, and the only question is, whether the prisoner at the bar did, 
 holding that dagger in his hand, stab the deceased ? In this case, as 
 in all other criminal cases, you the jury are to judge of the law as 
 well as the fact: and you will, no doubt, take advice from the court. 
 But after all, it is you that are to decide both law and fact, and I 
 arn happy to tell you, that after a review of all the cases upon the 
 principles here to be decided, and from the gravest authorities of 
 the law, you will be enabled to decide without much difficulty : and 
 I shall refer to some authorities, which seem to contain w ithin them¬ 
 selves every principle useful or necessary for your consideration^ 
 Whilst I state them to you, I am to be understood at the same time, as 
 submitting them to the court, in the hope that both court and jury will 
 agree, that this is not to be considered as manslaughter. The law 
 is without mystery, and founded upon clear principles of common 
 sense. Some cases render it less clear, and there are some which 
 the looking into will rather perplex than enlighten the judgment 
 of a jury. The indictment does not charge manslaughter, by that 
 general term, for such an indictment would not be good. The 
 overt act must, upon principles of common justice,' always be set 
 forth, that the prisoner may know precisely what he is charged to 
 answer. That course has been properly pursued in this indict¬ 
 ment, and the charge here is, substantially, that the prisoner, with a 
 
110 
 
 dagger in his hand, struck the deceased, and gave him that mortal 
 wound of which he died. 
 
 The booxs say, and the court will so advise you, that the manner 
 of the death is an essential part of the charge in all cases of man¬ 
 slaughter. in 1 East's Crown Law, 341, this doctrine is cleany ex¬ 
 pressed : and if the indictment states the death to be by a blow, the 
 manner of the blow must be stated. And there, though the blow was 
 alleged to De with a staff, and the proof was of a blow with a stone, 
 it was held good proof, on the ground that it was the same kind of 
 woundhig, viz. by a blow. If, However, gentlemen, you should be of 
 opinion mat Air. Stoughton fell upon this dagger, even though the 
 defendant had it in his hand, he cannot be conv icted under tnis in¬ 
 dictment, for that would not be the charge we came to answer to. 
 lu order then to convict, you must be convinced, first, that the fatal 
 wouud was given by the dagger held in his hand ; and secondly, 
 that it was by a thrust with that dagger he caused his death ; and if 
 we are wrong here, you must he of opinion that the killing in the 
 way 1 shall snow he was killed, amounted to manslaughter. And this 
 leads us to cou.-ider what manslaughter is. It is not every killing of 
 a man : the killing may be murder, which is the highest crime by 
 our laws next to treason, or it may be in self-defence and justiiiable, 
 or by accident and then excusable ; and whether it amount to a crime 
 at all, must depend on the nature of the case and the intention of 
 the party. If 1 kill a man with malice aforethought, as if, in con¬ 
 sequence of any offence, I go deliberately with premeditation and 
 kill him, it is murder : because 1 did it with a lirm and fixed design, 
 and full intent to kill him. Iff kill a man unlawfully and wilfully, 
 but without malice aforethought, it is not murder, but manslaugh¬ 
 ter ; lor example : if 1 unexpectedly get into a quarrel, and in a 
 sudden passion, having a stick in my hand, 1 kill my adversary, it is 
 not murder, but manslaughter, because there was no malice nor no 
 previous intent; but because it shows an unjustifiable degree of 
 passion it is manslaughter, it being a necessary principle upon which 
 the peace of society depends, that men must be taught to curb their 
 passions, and not be hurried by their intemperance to the de¬ 
 struction of a fellow creature. 
 
 If on a sudden atfray, without any unlawful act of mine, my ad¬ 
 versary is killed, it is accidental death : and if it be accidental, it is 
 no crime ; for no man can be made to answer criminally for the 
 consequences of a mere accident. So if a man attack me in the 
 street, and 1 have just reason to believe that he intends to kill me, 
 1 have a right to take away his life, because it is an act of self de¬ 
 fence, and self-defence is the first law of nature, and always ad¬ 
 mitted by the common law. These form the substance of the 
 cases in the Books. The gentlemen caij find none, however varied 
 in circumstances, that do not turn upon the principles 1 have now 
 laid down ; for in homicide, as in all other cases, it is the intent 
 that constitutes the crime. If no intent, there is no crime ; nor is 
 there, nor should there be punishment. If, therefore, from a 
 careful examination of the evidence, 1 shall be able to show you 
 
m 
 
 hat this misfortune proceeded from no evil intent, you are bound 
 to acquit, and never can convict. 
 
 Permit me now to beg your patient attention while I go through 
 he evidence, which I mean to do carefully and candidly, i mean to 
 •tate every thing that makes either for us or against us, and if I 
 unit any thing, it will not be for want of intention to give you a 
 air and candid statement. 
 
 Before 1 proceed to dissect the evidence, let me ask if it has not 
 lready left doubts upon your minds. Is there a man who does 
 iot doubt, at this moment, whether this act was committed by ac- 
 ident, or by design 1 and if such doubts exist, you are bound to 
 cquit. All we have to do, is to show the evidence to be doubtful, 
 nd claim the merciful principle of the law, which would rather 
 iventy-mne guilty should escape, than one innocent be punished, 
 he mayor has told you, in the course of the cause, that where 
 here was doubt touching the admissibility of evidence offered by 
 le prisoner, he was bound to admit it rather than refuse it, the 
 iw always inclining to the side of mercy. So if you have any 
 oubts upon the whole evidence, you cannot take upon you to con- 
 ict. 
 
 Let me make another general observation. This affray happened 
 1 one of our public streets, and the most public in our city. These 
 ivo men are found in a scuffle—all such things as happen m an or- 
 nary scuffle, would pass without much observation by any witness, 
 2 cuuse nobody notices common and passing events. But if any thing 
 nusual occurs ; if the assault was committed with an unusual weapon, 
 i an unusual way, it is likely to fix the attention of every man ; and 
 the dagger was used to stab, it could not be that not a single man 
 srceived it. This alone ought to acquit the defendant, lor it is im- 
 issible, that amongst all who were looking on, no one should take 
 >tice of it. 
 
 But, gentlemen, we do not rest upon these general observations, 
 r. Cambreleng tells you he saw the right hand of Mr. Goodwin 
 e whole time of the conflict, and till Mr. Stoughton was on the 
 round. Is it possible the stab should be given and he not see it ? 
 on have heard of the nature of this wound, the course the in- 
 'rumerit took, and the violence with which it entered the body of 
 e deceased between the ninth and the tenth ribs, with so much 
 rce that it splintered off a part of one of those ribs. Dr. Mott, 
 ■bo examined it, thinks it was part of the tenth, the other doctor 
 links, of the ninth rib. Dr. Mott tells you that, in his opinion, 
 i was beyond the strength of any ordinary man to have inflicted 
 hit wound ; that no man of ordinary muscular strength could have 
 hit power. We are not told how much was splintered off; but 
 ir. Mott saw the rib and had ocular demonstration, and is the 
 loperest person to judge of the force required. Dr. Nelson tells 
 i that, in his opinion, it might have been given with a dagger in 
 te hands of a man. But he never saw the wound ; never ex- 
 nined more than the orifice merely. He did not know how much 
 Y s splintered off, nor search into it, but he thinks a man could 
 
J12 
 
 have inflicted it. He goes farther and says, that not only was it in the 
 power of a man to inflict it by mere muscular strength, thus forcing 
 it into the body, but he has given us a fact as conclusively demon¬ 
 strating that it could not be given in that way, and 1 think he has 
 given an opinion not founded by the fact. He tells us these are 
 called false ribs, and are very elastic. Now, gentlemen, if the 
 point of this instrument was pressed upon my linger, it being 
 an elastic bod}', would yield to the weapon ; which shows that 
 the wound could not have been given by mere pressure. But 
 this rib was beyond question splintered : to take a piece off an I 
 elastic body, it must have great velocity as well as force ; there¬ 
 fore, the very fact he states, will show that it could not have been 
 given but where velocity and force were combined. Dr. Post thinks; 1 
 man bolding this dagger with the hand, might have given this wound 
 but does not say that strength alone, without velocity, could hav< 
 effected it. He thinks a man of ordinary force might give it, bu 
 the gentlemen did not ask the question whether, without a quick 
 ened motion, mere strength could have achieved it. If, therefore 
 it was given at all by the hand, it must have been given with mucl 
 force and an extended arm ; and how can you think he brandishei 
 it in his right hand, extending his right arm to acquire that accele ! 
 rated motion, and ot twenty or thirty standers-by and lookers-or, 
 not one pretends he saw it ? Is there a man among you then wh<i| 
 will undertake to say, upon his oath, that this was so, and that h. 
 has no doubt it was so ? If not, and you have doubts, you mus 
 acquit. If you are not positive he did inflict the wound, you neve 
 can convict him. 
 
 But now I may be asked to say, how was this wound given ? T 
 that 1 say, first, that it is not material to our defence to show hoi 
 it happened. 1 am prepared by the cases cited by the gentlemen,! 
 admit that, the killing being proved, the showing of an excuse be 
 longs to the defendant. But 1 maintain, that they must first begi 
 by showing that the prisoner killed the deceased, that lie did sta 
 him ; when that is done, we are bound to show either that it w; 
 upon a sudden quarrel, or that we did not intend to kill ; and the 
 it will be either murder or manslaughter, unless it were in self-dt 
 fence, in which it would be neither, hut an act entirely innocen 
 It is in vain-then to say that we must make out our excuse, for, 
 they do not make out the fact they charge us with, the prosecutic ] 
 must fall to the ground. 
 
 Permit me now to take a view of the evidence as to the probab’ 
 manner in which this wound was given. My own opinion is, that ft 
 most probable, and certainly a possible way, is, that when M 
 Stoughton was filling, by some accident or other, this dagger inn 
 have got out of the hands of Mr. Goodwin, entangled probably i 
 Mr. Stoughton’s capes, and he must have fallen upon it. And til 
 gains probability from the position in which he fell. Mr. Canibr 
 leng tells you he fell on his left hip, and the w'ound was nearer tl 
 backbone than the side. Mr. Clark says that he fell on his breer , 
 M‘Gowan says on his rump. And these are the only witnesses tl 
 
113 
 
 speak as to the manner of his fall : and they agree with the manner 
 in which Dr. Mott thinks it must have happened : namely, by his 
 falling on the dagger. 
 
 Thus, gentlemen, if the wound was given by Mr. Goodwin with 
 •hat dagger, it must have been either the instant after Mr. Stoughton 
 fell, or after he was on the ground. Now the physicians one and 
 all agree, that it was impossible to have inflicted it as he was fall¬ 
 ing, for then it must have taken a different course. He could not 
 have given it when he was on the ground lying upon his back, for 
 it was then impossible to wound him in the hack. It must then 
 have been while he was standing up, and before he fell. 
 
 Now what is the evidence on the subject of this fall ?' Mr. Clafk 
 says he saw the defendant hit the deceased upon the head, and 
 with his hand, and so knock him down, and he saw nothing in Mr. 
 Soodwin’s hand at that time. If he is to be believed, then the blow 
 that knocked him down was not given with the dagger at all, nor at 
 he time it was given had he the dagger in his baud. Mr. Weed 
 ;ays it was given with the cane ; he saw but one blow, and it was 
 that which knocked Mr. Stoughton down, and with it the sheath 
 dew off. Mr. Weir saw several blows all given with the cane, but 
 ie never saw the blade till after all was over. Mr. Haycock says 
 le struck him with the head or handle of the cane. Mr. Ball says 
 ae held it by the blade, and so does M‘Gowan, and that he struck 
 him with the butt end foremost. 
 
 I am bound to admit, from a view of all this evidence, that Mr. 
 ifoodwin had this stick in his hand at the time Mr. Stoughton was 
 smocked dowm, though Mr. Clark states he had no stick in his hand 
 ff that time. But I am compelled to admit that he had it in his 
 land, and held it in this way : (showing) and the probability is, that 
 vhile Mr. Stoughton was in the act of falling, this dagger, by some 
 infortunate accident, must have fallen from the hands of Mr. 
 loodwin, become entangled in the clothes of Stoughton, and he 
 lave fallen upon it. 
 
 If then I shall be able to satisfy you that Mr. Goodwin had the 
 agger in his hand before the fall, and that immediately after he had 
 t not, the conclusion is irresistible that he must have lost it just as 
 dr. Stoughton fell. Mr. Clark was close to them at that moment, 
 ind immediately interfered between them. The deceased was 
 iown, the prisoner was leaning over him : if Goodwin then held a 
 lugger in his hand, Clark must have seen it ; and yet he tells you 
 he first he ever saw of it was after Mr. Stoughton had risen up, 
 ind struck a blow at the prisoner, then stood a while, and finally 
 linted away. The inference is clear, that at that moment the prison- 
 ;r had it not. 
 
 Mr. Weed did not see the prisoner have the dagger after Mr. 
 itoughton fell. Mr. Baker says, that when he was down, he saw 
 dr. Goodwin strike him several blows on the head with his open 
 rands. It is impossible that he could then have held the dagger, 
 dr. M‘Williams tells you, that when Mr. Stoughton was down, the 
 efendant, was striking with his fists, and he was the first that came 
 
 15 
 
 
114 
 
 upon the ground after Mr. Clark. He never saw him have a stick 
 or any weapon till after Mr. Stoughton fainted. He came up when 
 he was on the ground a::d saw every thing that passed, and was 
 confident he had not the dirk, and never saw it till after he had 
 risen and fallen again. Mr. Phelps, who thinks the deceased must 
 have fallen as he was crossing the street, never saw cane nor dag¬ 
 ger at all. M‘Gowan says he thinks it appeared to him that he 
 saw the dagger on the ground, hut he is not certain, and the time he 
 speaks of was when Mr. Clark was there, and at that time the evi¬ 
 dence of Mr. Clark shows he had no dagger. Mr. Wilder says he I 
 struck him first with the one hand, and then with the other : he ' 
 hrffl a direct view of him all the time, and Mr. Goodwin had no 
 weapon in his h ind. Mr. Cambreling says that Mr. Goodwin did 
 not, nor could not have struck him with a dagger when down, or 
 he must have seen it. 
 
 If these were all the witnesses to show that the prisoner had the 
 dagger when the deceased was on the ground, is it not conclusive 
 that he had it not ? True, Mr. Weir says that when he was down, 
 the defendant was making blows at him with the stick ; hut where 
 was that witness at the time ? Was he close by as were the other 
 witnesses? No! he was at the opposite side of. Broadway, either 
 coming up or crossing, hut still at a considerable distance. Is it 
 likely that he saw as clearly as the others, who were close beside 
 the parties? Mr. Weir saw him strike before the deceased fell 
 down, and confounds, that epoch with the lime when he was down. 
 Mr. Haycock was walking up Broadway wifii two customhouse 
 clerks, who were going to their dinner ; they were on the opposite 
 side of that wide street ; and can you conclude from their testimo¬ 
 ny, that what those immediately present tell you is not true ? 
 
 I have now stated all the evidence as to that fact. Six ol these wit¬ 
 nesses. equal at least in intelligence to those opposed to them, 
 whose "opportunities ot seeing were much better, swear positively, 
 that when Mr. Stoughton was down, Mr. Goodwin had not the dag¬ 
 ger in his li Hid. One witness is doubtful , and two say he hod it. 
 Will you rely upon those two who were running across Broadway, 
 and disbelieve the six who stood close by ? 1 have, 1 think, fairly 
 stated all the testimony. 1 have wished to disgui-e nothing, to con¬ 
 ceal nothing ; and l ask you now, as honest conscientious men. upon 
 which side you rind the weight of evidence ? Before the fall of the 
 deceased, 1 admit the prisoner had the dagger, hut immediately af¬ 
 ter he had it not. No doubt, then, it got entangled in the clothes 
 of Stoughton, he fell upon it, and to that was ow ing the unfortunate 
 catastrophe. » 
 
 One witness only (Mr. Haycock) pretends lo say, that ns Mr. 
 Stousjhtcn was falling, Mr. Goodwin continued striking him with the 
 handle. If that witness was to be believed, still it would follow 
 that he never could have given the wound. He was holding Ihe 
 dagger this way : (with the point towards his own body.) He must 
 then have put it out of his hand when he was about to fall upon the 
 top of the deceased. If he did that, and Stoughton fell upon it, 
 
115 
 
 cither in consequence of his so dropping it to secure himself, or if 
 it was in some other manner that none of us can clearly explain, 
 you are bound to acquit, for you should never convict of so griev¬ 
 ous a charge upon uncertain testimony. 
 
 But, gentlemen, two, 1 think, of the witnesses say, that in their 
 opinion, they saw the blows that Mr. Stoughton received from Mr. 
 Goodwin ; that they were not heavy enough to knock him down, 
 and that they were surprised to see him fall ; from which it will be 
 inferred, that this wound was the cause of his fall, and was given of 
 course before lie fell. I have shown that it must have been given, if 
 th.it were so, before numerous spectators, who could not but have 
 seen it ; but remember the testimony of Mr. Cambreleng, that the 
 instant before the deceased fell, he had stepped back off the curb¬ 
 stone and tripped, and Coodwin, following close and quickly after 
 him, may have occasioned the fall. If Mr. Cambreleng is to he be¬ 
 lieved, and no man is entitled to more credit, Mr. Stoughton must 
 have tripped, and that, together with the strokes, must have caused 
 him to fall down. 
 
 And, gentlemen, as it is my wish to give you a full and fair view of 
 all the evidence, without the least inclination to mislead your judg¬ 
 ments, 1 feel it my duty to observe upon the testimony of Mr. 
 Weed, when called up yesterday. He says, that before Stoughton 
 got up, he saw the dagger lying about a foot from his body ; from 
 which it will be argued, that inasmuch as he was then lying upon 
 his back, he could not have fallen upon this dagger, it lying then at 
 some distance from him. This 1 must endeavour to explain and get 
 rid of. That witness says, that the crowd collected, and he could 
 not afterwards see distinctly. He may then well be mistaken. It 
 shows, at all events, that the dagger was on the ground, and did not 
 remain constantly in his hand, and renders the subject only more 
 doubtful and perplexing : and if a doubt once rises in your minds, 
 whether Mr. Weed may not have been mistaken in this evidence, 
 instead of weighing against, is in favour of the defendant. The 
 whole thing did not last half a minute. Mr. Weed thinks he saw the 
 dagger, when Mr. Stoughton lay upon his back, upon the pavement. 
 But from the time when he first fell, and even before it, Mr. Wee.d 
 tells you himself, that he had not a distinct view of the parties. Is it 
 not then possible that he may have seen the dagger on the ground 
 the last time, it being then more likely to impress him ? and he has 
 transferred the epoch by effect of his imagination, and mistaken one 
 moment for another. But Mr. Clark stood between the combatants, 
 exactly alongside ; must he not have seen the dagger if it was there '{ 
 Is it not then possible that Mr. Weed may he mistaken, but mis- 
 ’.aken merely and only as to the period when it rvas visible to 
 aim? Allow, then, that he may have been mistaken as to the mo- 
 nent of time, and then the fact of the dagger being seen on the 
 ground, gives strong probability to its having happened as 1 state : 
 >ecause it shows at least, that the dagger was certainly, at one time, 
 ;>ut of the prisoner’s hand, however it came into it again. 
 
116 
 
 I have n«w, I think, noticed the testimony of every witness ex¬ 
 cept Mr. Vervalen, a man produced here yesterday, and swearing 
 to facts which 1 am sure no gentleman on that jury can believe. 1 
 do not mean to go over his evidence, 1 shall pass it by, merely ex¬ 
 pressing a hope that he was not improperly brought to testify to 
 things that never happened. 
 
 You will be told that you are. bound to convict, because the pri¬ 
 soner acted unlawfully, and committed the first assault. The coun¬ 
 sel on the other side have cited cases to show that the first assault 
 being unlawful, the defendant must abide the consequences of it. 
 But vvhat is au assault? It is “ an attempt or offer to beat anothei 
 wituout touching him, as aiming at him in an angry manner, bu> 
 missing him.” Now, he held up that stick neither in an angry man¬ 
 ner, nor vet with an attempt to strike him ; he held it, indeed, in ; 
 scornful manner, but tiiat was no assault, nor would it justify an as 
 6ault on the part of Mr. Stoughton, no more than words would 
 Then tne first assault was by the deceased, und it was not unlawfu 
 in the prisoner to repel i . 
 
 But, gentlemen, you will be told, in all probability, that thougl 
 Mr. Goodwin did not commit the first assault, or commence thi 
 affray, yet that the words spoken by him were intended to provok 
 it, and that the night before, he possessed himself of this swordcane 
 and that you must presume he did so with intent to use it as it wa 
 used. It these facts were true, if he did procure it for that purpose 
 if being so possessed of it, he spoke those words for the purpose c 
 bringing on this affray, to the end that he might take Mr. Stough 
 ton's life, I have no hesitation to pronounce him a foul and a 
 atrocious murderer ; and that his indictment and trial should hav 
 been for wilful murder. But he is no murderer! he is an unfortu 
 n.ite, ill-fated, indiscreet young man ; and, therefore, every thin 
 that he has said or done, is to be brought, however casual, howevc 
 indifferent against him, to convict him. A mere casual intercoun 
 of friendship between him and his intimate acquaintance, Majc 
 Smith, is made an instrument for his destruction. It is not true th; 
 he intended to bring on this affray ; it is not true that he has bee 
 so foul a murderer; and that, notwithstanding the caution tJ 
 fasteu the string, he loosened it, the better to accomplish his belle 
 purpose. He is not a guilty, he is an injured man ! He did notsiq 
 pose that Mr. Stoughton would have returned and commenced Ih 
 battle. He pointed the ringer of scorn as at a man whom rightful 
 or wrongfully he believed to be a coward : one that would not, as! 
 thought, turn upon him. Mr. Stoughton continued several paces, ai 
 the prisoner stopped and looked at him. If he had intended an ? 
 fray, he would have returned and repeated what he had said in pas j 
 ing ; but at the desit - e of his friend, he proceeded deliberately < 1 
 bis way. If he had sought a quarrel, he would have rejoiced to si 
 his adversary turn about, and would have seized the opportunity 
 making good his purpose. 
 
 If, Gentlemen, it had been as he thought, this fatal occurren 
 had never taken place. He will never cease to lament it; he w 
 
117 
 
 aver regret the day he got that cane. It was, indeed, to him, an 
 Unusual arm ; not being accustomed to walk with such a stick, not 
 recalling what had passed between him and his friend, he did not 
 even remember that it had a sword. J he moment he saw it drawn, 
 he used every possible caution to avoid the mischief it might do. 
 He held it short by the blade and struck with the handle. Would he, 
 if his intent was murder, have held it so ? iN’o, he would not have 
 taken it by the blacfe to avoid what, it is now cruelly insinuated, 
 he did with a felonious purpose. 
 
 Again, gentlemen, if the prisoner had intentionally given this stab, 
 would he not have gone oil’ the moment the deceased fell down ? 
 would he not, if he had intentionally killed him, have taken the 
 first opportunity to make his escape ? But he remains on the spot, 
 ill Mr. Stoughton gets up and faints away. He then hears Mr. 
 Phelps say, “ he is a dead man and yet he remains stationary 
 .ill the body is carried into the adjoining store, till the door is lock¬ 
 ed ; and then you find him deliberately looking for his hat. It 
 s impossible then that he either intended, or knew that he had in- 
 licted this wound. If he was constious that he had already given 
 he deceased a fatal stab, would he have continued striking him 
 ifter he was down ? There is no man bad enough to do that; none 
 io base, or shameless, or depraved, or even so foolish, as, before 
 he eyes of the public, to continue heating and insulting the lifeless 
 corpse of one he had murdered by a hidden stab. He would, 
 n the language of Macbeth, “ have been afraid to look on what he 
 lad done.” This proves, 1 trust, that he never did, intentionally, 
 :ommit this act. 
 
 And what was the nature of these blows when he was down ? 
 They were not given in anger ; they were mere slaps, denoting not 
 nger, but scorn and contempt—not the ferocious purposes of a mur- 
 erer, who had no remorse, no other fear, but that be had not done 
 nough. But since of all those blows upon the head of Mr. Stough- 
 on when he was down, not one left any mark, the testimony of that 
 witness is confirmed who says they were given with the flat hand, 
 without intent to do a serious injury. 
 
 And again, when the prisoner was first seen with this dagger, 
 fterthe deceased got up, every one agrees that he looked at it with 
 urprise. “ 1 did not intend to draw this,” were his words, hold- 
 pg it forth. If he was conscious that he had stabbed Stoughton to 
 eath, would he have held up to public view the evidence of his 
 uilt ? If he knew that he had murdered Stoughton, would he have 
 roclaimed his own crime arid insured his own conviction ? 
 
 His whole conduct shows that he was unconscious of any crime, 
 'here was nothing hurried in his manner, no desire to escape, 
 ou find him cool, deliberate, and collected. If he felt the guilt 
 f murder on his soul, he must also have felt the fear of human 
 istice ; and in that state of mind he could not have been calm ; or 
 he had such presence of mind, it would have urged him to escape, 
 ut he knew his own innocence : he hurried riot away. He was 
 iirprised at the injury which he was, unconscious of having done. 
 
118 
 
 He remained for a time, not knowing what had happened. I 
 walked down Broadway, and not ■till it is reported to him that! 
 adversary was a dead man, or said to be so, does he think of sti 
 ring; and then he consults his friend, who advises him to withdra 
 himself from the scene. Mr. Cambreleng tells him at first that 
 is not necessary to leave the city, for he does not think that M 
 Stoughton could be materially hurt. But “ did you not hear 
 person say he was a dead man ?” Yes, says his friend, and perha 
 therefore )ou had better go. He tlien walks to the Elizabethtov 
 steamboat. He arrives at that place about five o’clock, and co 
 tinues there, in a public house, two, three, or four hours, witho 
 any attempt to get away. 
 
 Now, gentlemen, he was in a post-town, through which the m 
 travels. He might have gone in it to Philadelphia, and it wol 
 have been impossible ever to have taken him. When the ofiice 
 came, his first question is 1,1 how is Mr. Stoughton?” They tell him 
 is dead, and that they are come to take him. He knows they ha 
 no power to take him out of that state ; but he says, I willsurrend 
 myself to the laws of New-York, and depend upon a jury to acq 
 
 me. Was this the conduct of a murderer ? Or is it not the strongi 
 
 evidence that he did not know or think he had done the act ? 
 
 It may be asked, doyou not then attribute blame to this man ? Id 
 But is there no difference between the want of discretion, and t 
 guilt of a felon' between thoughtlessness and crime ; between tl 
 blame which attaches to every act of imprudence, and that gi 
 that consigns a gentleman to the state-prison and to infamy ? i 
 ought not to have uttered the words he spoke. He ought not 
 have done the act he did. But neither should you send him to t 
 state prison, if he is not guilty of the felony of which he he 
 stands charged. He has done vvhat was wrong, it is true. ButGi 
 knows he has suffered enough. For three months he has lain, 
 gaol; his reputation blasted in the eyes of many, and of some, p> 
 haps, forever. 1 say nothing of the many sleepless nights that i 
 imprudence has caused to a venerable parent and a lovely sist, 
 whose hearts have, and do still cling to him, as the object of llr 
 tenderest affection and their fondest hope. God knows he bass- 
 fered abundantly, and he must be relentless indeed who wod 
 make him suffer more. 
 
 You are told this crime has been committed in the public strei,. 
 and that it is du6 to our community to make of’its author an e, 
 ample! But 1 entreat you that you do not immolate an innoct 
 victim for the sake of an example. And I trust you will not. I 
 will hope that notwithstanding every effort out of doors to prejudl 
 the individual, and forestall the opinion of his jurors, that not!>a 
 has found its way into that box where you are arrayed but rigby 
 ousness and mercy : that you will proceed, regardless of all tt 
 you have heard, but from the sworn witnesses: that you will set p 
 other, since you can set no better example, than that of adminUtv 
 ing pure and impartial justice. 1 cannot but hope, what I so e- 
 nestly desire, that the history of this cause may rectify the pule 
 
119 
 
 eling, and give a useful lesson to prevent in future such practices 
 are disgraceful to us all, and amongst others, that of holding 
 man up in public papers as a culprit or a convict, before he has 
 :en tried. This ought to be put down, or no man in our commu- 
 ty is safe. Mark, gentlemen, how these abuses operate. In the 
 ;st moment of excited feeling, a coroner’s jury found this wilful 
 ■irder. When the public opinion bad but a little time to cool, and 
 jn could form a more deliberate judgment, a grand jury, hearing 
 t the inculpatory side, found it manslaughter. And now, 1 hope, 
 len all these prejudices have passed away, from the minds at least 
 those who have heard the testimony, you will not shrink from 
 ur duty ; but that you will have nerve to say, the prisoner is in¬ 
 dent, and to acquit him altogether. I ask you not for mercy. I 
 is justice, and cannot brook the thought of as! ving it in vain. 
 
 Emmet followed Mr, Ogden in Summing up for the Prisoner. 
 
 Gentlemen of the jury, if I could entertain a thought, that 
 ) any thing which may fall from me on this occasion, I might 
 ranee my personal reputation, I should only cherish a vain and 
 (3 expectation : if my mind were occupied with any thing so 
 iit, I should shrink from a comparison with those able associates 
 so have preceded me. Still I am not discouraged from entertain- 
 r the hope, that in the exercise of my professional duty, 1 shall 
 ' able to add some observations, though not of equal force, yet 
 oewhat conducive to the success which we all desire ; but which 
 3sire with different expectations from those which have been 
 aressed by one of my associates, i know and feel that there is 
 ttake in this trial, that, which if lost, will bring ruin on my client, 
 i spread desolation over a numerous, amiable, and respectable 
 aily. But whether it be that nature has given to me a more san- 
 tie and enthusiastic disposition than to others, L know not: I 
 a't confess, however, that I address you with strong and ardent 
 ices. And if I can instil into your minds but half the conviction I 
 e of my client’s innocence, his acquittal is secure. 
 
 he district attorney, in stating to you this case on behalf of the 
 Tsecution, said, that the excitement produced by the lamentable 
 vnt which has caused this trial, did honour to our city. He 
 P> e truly; but he must admit that it has formed a frightful im- 
 ,e ment to the due administration of justice. It was honourable to 
 u community, because it bespoke universal horror at the atro- 
 M* crime imputed to my client: but there is another feeling 
 a ible of doing still greater honour to this city, the noble renun- 
 iaon of prejudices and antipathies, formed with precipitation and 
 Tit, and discarded under the influence of cool investigation and 
 eaerate inquiry. I rejoice to perceive how rapidly they have 
 isapeared amidst the vast assemblage who have listened to this 
 rii, as the testimony became developed ; and assuredly it will re¬ 
 nt d to the honour of this community, to find that an unprotected 
 tr ger, against whom every arm was nerved, and every' voice was 
 an d under a belief of hie guilt, can safely commit his dearest in- 
 
 ■ 
 
 j 
 
120 
 
 terests (unknown and unprotected as he is) to a jury, taken from tin 
 incensed community, and receive from their patient attention an 
 examination of his case, his own acquittal, and a recantation ot tLos 
 preconceived opinions, which seemed calculateu to overwhelm hu 
 in disgrace and ruin. 
 
 And indeed, gentlemen of the jury, I should not indulge in th 
 expectations 1 have avowed to you, if I did not believe 1 was ai 
 dressing men wnu will not suffer any thing to sway their minds b: 
 the testimony and the merits of the cause ; who, when placed 
 that seat of justice, will shake off and cast behind them all thos 
 rumours and prejudices which have hitherto preoccupied the pu 
 lie mind : and which, 1 must confess, took possession even of m 
 self. For when 1 first heard of the dreadful calamity which closi 
 the life of Mr. Stoughton, 1 partook strongly of that exciteme 
 which agitated the whole city : but l had not conversed one n; 
 hour with my unfortunate client in his prison, till 1 felt a convictio 
 which has ever since continued gaining strength in my mind, tb 
 he is free from reproach as to all criminality of act or intentit}: 
 And it is, because I think it impossible an intelligent jury can’I 
 lid, on due consideration of the evidence, to arrive at a differe 
 conclusion, that 1 so confidently hope that the hour of his delm j 
 ance is at hand. 
 
 ' Gentlemen of the jury, as by the constitution of this state it j| 
 your part and your duty to form your own conclusions of law * 
 well as of fact, in every criminal case, so it is my duty, with the nr 
 entire confidence nevertheless in the court that presides, to 1 
 down the law applicable to the evidence, as well as to comtni 
 upon the authorities cited by my adversaries. And in doing so, 
 prepare your minds for a more accurate examination of the e 
 dence which I have to discuss. 
 
 The first doctrine 1 have to remark upon, is the position insist 
 on by our adversaries, that the burthen of the proof is placed up 
 the prisoner. This position is founded upon an authority whip 
 shall endeavour to explain, and to repel its application to this ca 
 It is found in Foster's Crown Law, p. 255, as follows : “ In eve 
 charge of murder, the fact of killing being frsl proved , all the c 
 cumstances of accident, necessity, or infirmity, are to be satis) 
 torily proved by the prisoner, unless they arise out of the eviden 
 against him : for the law presumes the fact to have been foundeci 
 malice, until the contrary appeareth.” That, gentlemen, is ad’ 
 trine I do not mean to question ; but the application of it seem:> 
 me to be strangely misunderstood. The rule of law' supposed 
 thing which the writer intended not to be overlooked, for he I 
 caused it to be printed in italics, “ the fact of killing being jl 
 proved." It is not because a death is proved to have taken pla. 
 that any man who is accused is put to the necessity of proof, ul 
 the act of killing by him is first established : and why? ‘for e 
 law presumeth the fact to be founded in malice till the contrary • 
 peareth that is, the fact which the evidence establishes to be* 
 act. 
 
121 
 
 But before the law will raise any presumption against any flrao 
 ’or any act, the doing that act must be first proved against him. 
 
 There is also another qualification : “ unless the circumstances, 
 ic. arise out of the evidence produced against him.” 
 
 We have examined but one witness as to the facts ; he has not 
 ;iven a new character to ttie circumstances which were detailed by 
 hose of the prosecution. On that ground, therefore, no burthen 
 f proof is thrown on us ; but you are to draw the natural infer- 
 nces from the facts stated. But what is the true meaning of the 
 'ule itself ? An indictment avers facts, and states an inference from 
 dese facts : when it says that a man committed the crime of killing 
 person with malice aforethought, then it is an indictment for mur- 
 er ; and in that case you are not bound to prove the malice afore- 
 rought, if you prove the killing by the party accused. Then it is 
 lat it lies upon him to prove the circumstances not averred, but 
 hich, when proved by him, are competent to rebut the first 
 resumption, and to alter the character of the transaction—* 
 ut the law never intended to say that any part of this pre- 
 imption or of tills rule, is to dispense with clear, sufficient, 
 pd adequate proof of the facts laid in the indictment. And, gentle- 
 en, the first ground we take is, that the evidence did not warrant 
 e conclusion that the death of Mr. Stoughton was occasioned by 
 iy act of the prisoner ; however unexplained it may be by him, 
 r inexplicable by those witnesses who, though they were present, 
 ;:t were too much agitated to see distinctly. But till the killing is 
 t'st proved by competent testimony, in the manner laid in the in- 
 ictment, a jury is not warranted in drawing any inference. My 
 fsociate counsel has truly told you, all that you are to try is to be 
 f ind in the indictment: it is your text book : it was, therefore, read 
 t you when the prisoner was given to you in charge. Let us there- 
 f’e refer to it: it states that Robert M. Goodwin, in the peace of 
 (>d and the people, in the fury of his mind made an assault, and 
 tit he made that assault with a certain drawn sword, which he 
 i his right hand then and there held, and that he ga e him with 
 tit instrument so held in his right hand, a mortal wound near the 
 mth rib. It states that he with the said sword did thrust and pene- 
 t te his body. 
 
 Mow, gentlemen, there may be, and there are averments in that in- 
 d tment, which are not essential to constitute the crime, and their 
 pj'iof rnay be dispensed with ; but the truth of every fact material 
 tfconstitute the crime must be proved as laid, or must be a neces- 
 s;y consequence from facts which are proved. You have no 
 ri it to extend the accusation, and say that he is guilty of any other 
 tbg but that which has been given to you in charge. Letfis then 
 S( what averments in that indictment are essential and necessary. 
 
 ! ) not mean to mislead you by saying that certain parts of this re- 
 C(d may not properly be considered as mere formalities ; but I 
 m;;t confidently say, that these parts are essential, and the proofs 
 otthem indisputable : first, that he made an assault upon James 
 St jghton : and that term assault is to be understood in the legal ac= 
 
 Ifi 
 
1<V>- 
 
 X w 
 
 captation of the word. I admit that if cv.e commits an excessive 
 outrage upon another who has tirst assaulted him, and kiil» him 
 that is an assault within the term ol the indictment ; hut if there is 
 not an excess on the part of the prisoner, nor any other act, such as, 
 if he were indicted for an assault, would be sufficient to convict him, 
 the averment that he made an assault is legally falsified. Secondly .this, 
 also, is essential in the framing of toe indictment g. that he, with a 
 certain drawn sword or dagger, which he in his hand then and 
 there ,eld, him the said James Stoughton did stab, thrust and pene¬ 
 trate, giving to him a W'ound on some part of the b<Jdy that will cor¬ 
 respond, or nearly so, with the description in the indictment. Bv 
 taking this indictment therefore as your guide, you will distinguisl 
 what you are to find and pass upon ; but observestill further, jot 
 are not to rind any of those facts, however properly charged, ot the 
 certainty of which you have a reasonable doubt ; and .,s it is the bu 
 siness of the prosecutor to establish with certainty every fact he ha 
 averred, doubt alone gives to my client the right to his acquittal 
 Yon cannot satisfy your consciences by finding something, i knot 
 not what, but something that you should suppose nearly allied t 
 the offence given you in charge. Exceptions to this rule wer 
 staled and referred to, in hopes of inducing you so to do. All th 
 authorities relied on by our adversaries, are to be found in 2 Chill, 
 Cr. Lair, 734. From them we can collect that an allegation of or 
 kind of death is never supported by evidence of another essen ial! 
 different; so that if it be alleged that the murder was committed t 
 stabbing, and it be shown to have been by drowning or poisonin 
 the prisoner must be acquitted. This is the general doctrine :’tl 
 exceptions are, that the particular species of weapon need not t i 
 ways be exactly proved : for instance, the allegation of assaultr I 
 with a staff, is proved by evidence of violence offered by striki 
 with a stone in the band ; and an indictment for murder by o 
 sort of poison, is supported by proof of murder by poison of anoth • 
 kind. But the act of the party is alzvays material, and so far as t •. 
 Jates to that, the cause which conduced to the death, must be , 
 ways proved as laid. The instrument or the poison may be irau ■ 
 terial, because ft makes no. act of the par ty. and therefore soi 9 
 certain act done by him, if proved as stated, w il! maintain the indi- 
 merit, though done with a different w eapon : but in every install] 
 the act of the party which caused the death must he proved! 
 charged. Take the first instance, of the m n charged with strika 
 with a stick, and proved to have struck With a stone : In recnrrB 
 to the original authority in 1 East, P. C. 341, it is manifest that | 
 was a stone not thrown as a missile weapon, but held in the ha Jj 
 and used as a staff to strike Willi. The act of the party is the sun 
 in both c -os ; and 1 may confidently siv, there is no case wh# 
 a conviction was ever had. ir it was proved lie struck with a si, 
 and it was charged to he a ti, atli occasioned by the thronin '^rd 
 stone. It has been only when the manner of using the thing, or e 
 nature of the killing, was identically the sftme. So it would in * 
 eo difference if it were charged to be a poisoning with arsenic, d| 
 
123 
 
 proved to be with sugar of lead, or corrosive sublimate. It is his 
 act that must be proved, and ins act is the same in both. 
 
 The counsel here referred to several approved precedents of 
 indictments, and read from them to show with what particularity 
 the manner of the death, and the act of the defendant, was always 
 laid, being the most material part of the indictment. See Mary 
 Bluady's case, Or. Cir. Ass. p. 2U3, which was a charge ot poison¬ 
 ing, and the manner and contrivance of the defendant in laying the 
 poison for the deceased, that he might take it in ignorance, is stated 
 with great particularity ; and see-other precedents of like nature, lb. 
 
 Now it fs manifest that if the prisoner can be indicted at all, 
 the only way in which this fatal accident can have taken place was, 
 by the knocking or throwing of Mr. Stoughton down by Mr. Good¬ 
 win, when the dagger was on the ground. Let me then illustrate 
 my position from the indictment just read. Suppose a man gives a 
 shove to another, by no means calculated to cause bis death, but 
 th.it in consequence of that sho.ve, he falls into a cellar and frac¬ 
 tures his skull, or into a pound where he is drowned : would it be 
 correct in either case, to say he gave him a mortal wound ? Neither 
 would it in this case. 1 repeat it, you may lay the act as far as con¬ 
 cerns the weapon, with a certain latitude : but the act of the party 
 from which death has ensued, must be described truly without any 
 latitude whatever. 
 
 This principle then, if -I -have established it, is, in my judgment, 
 entirely applicable and fully sufficient tor the acquittal of my client, 
 even though it should be believed that a homicide was commitied 
 by an unlawful act of bis. Even supposing, for argument sake, that 
 he was responsible for the act of shoving or casting the deceased on 
 the ground, yet the indictment should state that the death resulted 
 from that casting on the ground. 
 
 It follows, therefore, that under this indictment, Mr. Goodwin 
 cannot be convicted, though you should believe that death was 
 caused by the fall of Stoughton on the weapon, and that such fall 
 was produced by an unlawful act of Goodwin, unless you believe 
 he gave a thrust or actual stab. For though the law might, in that 
 case, visit upon him the consequences of the illegal act, yet, under 
 this indictment, he cannot possibly be convicted. 
 
 There is a doctrine which stands upon ancient and venerable au¬ 
 thority, which has been in some respects questioned ; but which for 
 the purpose of my argument is, 1 think, established even from the 
 discussions it has undergone : (2 Hale , 184.) where it is laid down that 
 if the indictment charges that the prisoner gave a mortal wound, 
 without saying that he struck, it would not be sufficient. A later au¬ 
 thor, Mr. Hawkins, seems to doubt of this, but let us see upon what 
 authority : (Hawk. Pl. Cr. b. 2. ch. 23. § 82.) It is not safe, he 
 says, to omit the word percussit: (that he struck) and by the au¬ 
 thority of some books, he says, it cannot be supplied by stating that 
 he gave a mortal wound : ( dedit mortale vulnus ) yet, in Coke's Re¬ 
 ports, he adds, this doctrine seems to be questioned, neither do £ 
 find any particular reason why the word percussit should be of sue% 
 
I 
 
 124 
 
 absolute necessity ; for it is not pretended in the case [Long's cose) 
 which is the chief foundation of this opinion, that it is a word of 
 art appropriated to this use : but all that seems contended for there 
 is, that where the death was occasioned by any external \iolencc, 
 coming under the notion of striking, it must expressly appear that a 
 stroke was given.” It is, therefore, clear, even from Hawkins' au¬ 
 thority, that when a stroke is laid as the cause of the death, proof . 
 of a stroke is indispensable. The using of the words strike or stab 
 imy, perhaps, sometimes be dispensed with ; but never the proof 
 of a stroke or blow, if the death be charged to have proceeded 
 from a stroke or a blow. And 1 therefore contend, that if the fact 
 of the defendant’s striking the deceased with that dagger, and there¬ 
 by giving him a mortal wound, be not here proved, then this in¬ 
 dictment is not proved, and no conviction can follow, even though 
 the prisoner should be guilty of some other act which might, per¬ 
 haps, be construed into an act of manslaughter. Until some act of 
 striking is proved, either by direct evidence, or such combination 
 of circumstances as make it a necessary inference, we are not 
 obliged to take the burthen of the proof upon us. The public pro¬ 
 secutor has never reached that goal he proposed to arrive at, when 
 he put that averment upon the record ; and if he only left a 
 doubt upon your minds, whether there was a stroke, and has not 
 altogether satisfied your judgment and your merciful consciences, 
 and your oaths, on that subject, then he has not yet put us on our 
 defence. 
 
 But, gentlemen of the jury, there are other principles more im¬ 
 portant to the character and reputation of my client, which also 
 conduce to his acquittal. 1 began by saying, that in every act of 
 manslaughter, the act of the party causing the death must be a vo- 
 luntary one. And I wish this position to be accurately taken down, 
 and marked and understood by you all, because to me it seems clear 
 as demonstration can make it, that manslaughter cannot be com¬ 
 mitted, unless the act which caused the death was voluntary. If 1 
 doubted as to my own correctness on this position, I should derive 
 infinite confidence from the definition given by Judge Parker , on the 
 trial of Selfridge, p. 158, that the crime of manslaughter consists in 
 the unlawful and wilful killing a reasonable being, without malice 
 express or implied, and without any reasonable cause. The act 
 then must be wilful as well as unlawful. One may kill another wil¬ 
 fully and be innocent : the act occasioning the death may be un¬ 
 lawful and he may be innocent : but this definition so coupling these 
 term*. is one that is perfect and never can be shaken. 
 
 But let not the word wilful be misunderstood. What then, it 
 may be asked, is its meaning ? 1 say, proceeding from the will of 
 the party. I admit the death may be manslaughter, though it hap¬ 
 pened in consequence of an act by which the accused did not mean 
 to cause death ; but it must be a voluntary act, whatever its conse¬ 
 quences may be, before it can render the party guilty of man¬ 
 slaughter. Where any part of the system of our law has a rela- 
 r.on to, or connection with another, the parts so connected are mu- 
 
125 
 
 tually strengthened and confirmed ; I therefore support this doc¬ 
 trine by recurring to an authority I have already cited. When it 
 said that the words strike or stab must be laid in the indictment, it is 
 meant that it may be put in issue whether the defendant did that un¬ 
 lawful and -wilful act of striking or stabbing. That, then, is the mean¬ 
 ing of the definition by Mr. Justice Parker, in which the law is thus 
 briefly expressed, that manslaughter is the unlawful and wilful 
 killing, &c. though without malice either express or implied. And 
 1 go farther and say that this is, without exception, the doctrine 
 which must be deduced from every English case that has or can 
 be referred to. J o prove this, 1 the rather take the cases which 
 the learned counsel opposed to me have cited, because 1 am bound 
 to presume and do presume that they are selected with the greatest 
 care and judgment in their own favour. 
 
 (Here the mayor asked Mr. Emmet whether he had found in any 
 book of authority that the word wilful was held essential in the de¬ 
 finition of manslaughter—to which Mr. Emmet replied that he had : 
 he cited the words of Judge Parker, and only added this commen¬ 
 tary of his own, on the word wilful, that it must be the voluntary 
 act of the party killing. He then proceeded.) 
 
 The first case cited merely went to the distinction between mur¬ 
 der and manslaughter. It is said in 1 Hale, P. C . 475, that if A 
 throw a stone to kill the poultry or cattle of B and the stone hit 
 and kill a bystander, it is manslaughter, because the act was unlawful, 
 but it is not murder. God forbid, I may add in passing, that it should 
 be held so here, where it would inflict upon the party the dreadful 
 penalty of the law ; and I must confess that from my earliest stu¬ 
 dies in the profession, 1 have never ceased to regard this doctrine 
 with horror, when such a case is put as that of a boy shooting 
 playfully at a bird on the road, and unintentionally killing a man, a 
 stranger against whom he could have no malice, or his playmate, or 
 his brother, and he is adjudged to have committed manslaughter. 
 Though I admit it to be the law of England, yet 1 have never read 
 the position without shrinking into myself. In that case, however, 
 the act of the boy was voluntary—he intended to shoof; the killing 
 was by an act he intended to commit, though he never calculated 
 the consequences of that act to be the death of another. In the 
 case of Ward, the boxer, (1 East, 270.) Ward intended to hit the 
 blow, although he never thought that death would follow from it. 
 So in Sir John Chichester's case, fencing in sport with his servant, 
 who probably might have been reared up with himself in habits of 
 familiarity from early youth, and whom, to use Lord Hale's words, 
 he very well loved, from the accident of his scabbard’s being strick¬ 
 en oil by his' servant, the point of his rapier accidentally' wounded 
 his groin and Sir John was found guilty of manslaughter. This, to 
 all human feeling, must appear one of the harshest cases in which 
 technical subtlety ever prevailed to overwhelm a wretched man, 
 and afflict the afflicted. But still it confirms my position : for there 
 the defendant intended to make the thrust; and though he did not 
 intend the death, it was his undoubted apd voluntary act that caused 
 
12(5 
 
 it. In Sno-v's case, the boy who committed the crime had come 
 home intoxicated and insulted his fither. His brother threw him 
 down and gave him some blows ; he drew his penknife, and with¬ 
 out intending to cause his brother’s death, but indulging his pas-ion, 
 he intentionally used bis knife for the purpose of making a stab at 
 his brother. Indeed, without going through the tedious range of 
 all the authorities in the English books, l will venture to affirm, that 
 there is not one where the wilfulness of the act did not enter as art 
 ingredient into the crime of manslaughter. 1 shall now allude, in 
 confirmation of this position, to two cases stated by Hale, referred 
 to by .Mr. Hiffirian, and also cited by the opposite counsel ; but 
 which did not, according to the intimation of the court on yester¬ 
 day’s argument, go as far as we could wish. While I now read the pas¬ 
 sage in 1 Hale, P- C. 4t!0,1 request you to observe that there are two 
 situations contemplated in this statement: First, A assaults C, who 
 flies to the wall, holding his sword, knife or pike in his nand ; or tails, 
 holding his sword, knife or pike in his hand ; A runs violently upon 
 the knife of B, without any thrust or stroke offered at him by B, 
 and thereupon dies : this is death by misadventure, (per unforiunium .) 
 Where 'is the difference of principle, or even of circumstances, 
 between one of the alternatives put by Lord Hale and this case ? A 
 assaults B, who falls, holding his sword, knife or pike in his baud, A 
 falls on it without any thrust or stroke offered at him by B, and 
 thereupon dies : this is death by misadventure. The principle 
 does not depend upon B’s actually failing; but upon A’s falling on 
 the sword, without any thrust or stroke offered at him by B. Nei¬ 
 ther does the principle of that case in any respect turn upon any 
 part of the law of self-d-fence ; for then Lord Hale would have 
 said it was a c use of justifiable homicide, and of a nature entirely dis¬ 
 tinct from misadventure, which is only excusable. The falling of 
 B is only mentioned to manifest that the wound must have been un¬ 
 intentional ; and (lie lirst assault bv A, and B’s retreating to the wall 
 are only mentioned to show that B was doing no wilful act ; but the f 
 true state of the case was, that the one party merely held the wea¬ 
 pon on which the other fell. And it proves all 1 say, that if in a 
 casual rencounter one party meets his death, but without thrust or 
 stab iflven by the other, or voluntary act causing the death, it is 
 misadventure. To say that one held the sword and the other ran 
 on it, is no more than to say, that if there is no intent in the party % 
 to do that very act which caused the death, it ceases to be man- ( 
 slaughter, and becomes misadventure. It is true it is the person 
 assaulting that has met with the misfortune, and such was also the 
 fact in that instance ; hut on the subject of manslaughter it stands on 
 equal footing in the law, whether the assaulter or the assaulted fell, 
 though in murder it is different: the making of the assault is then 
 material ; but when the thrust or stab has never been given, nor the 
 death arisen from a voluntary act, it cannot be manslaughter, and 
 must he misadventure. So in page 493 of the same book ; if B 
 having a pitchfork in his hand, A assaults him so fiercely that he 
 runs upon the pitchfork, B offering no thrust at all against A j though 
 
127 
 
 his be .a very difficult matter to suppose, yet, if the fact be suppl¬ 
 ed to be so, he says, B forfeits no goods, because it was the act of A 
 rimself; and some have said rather that in that case A is felo de se r 
 Phis case also keeps up the uniformity of the principle, that man* 
 laughter must be by a voluntary act; and though for every voluntary 
 ict lie must abide the penalties of unforeseen and unintended consc¬ 
 iences, yet he is not to answer for a misfortune not occasioned by 
 ny aetofhis. Bow let us see (the cases being disposed of) whe¬ 
 ther 1 am not based upon a still more solid principle than book au- 
 hority. Does not justice require that the act causing the death 
 hould be voluntary ? For God forbid that he who had no criminal 
 ntention should suffer for a crime. If the words found in the in- 
 liclment, “ in the fury of his mind,” are meant to distinguish the 
 ct from a mere casualty, surely the construction should be at least 
 hat the act should be voluntary. 
 
 The doctrine 1 am contending for is the law of England, and de¬ 
 uced from English authorities ; but it is infinitely more important 
 d insist on it here, than it could be in that country, for there the 
 uriishment of manslaughter is discretionary with the court ; but 
 ere it must be at least three years imprisonment in the state pri¬ 
 on. If I were pleading for my client at an English bar, I should 
 robably not deem it material to his interests, that 1 should dwell 
 pon the position 1 have just advanced ; because from the gradual 
 Iteration of times and opinions, which would protect him from a 
 irfeiture of goods, it would be little worth the pains of any English 
 iwyer, having once established that the casualty was not imputable 
 > him, to cite cases or argue very strenuously for an acquittal. His 
 lient would, upon conviction, be fined perhaps one shilling, con¬ 
 ned one day, and then discharged. For what reason I do not know, 
 ut the fact in this state is, that all discretion in the punishment 
 taken from our courts of justice; and myr client must, if con- 
 icted, inevitably be sentenced to a punishment more bitter than 
 eath to a man of lofty feelings and honourable character, nurtured 
 ad bred with sentiments worthy of his station in life. 
 
 When it appears from certain acts of the legislature, that every 
 lan found guilty of manslaughter should be sentenced to the state 
 Fson for tliree years, should it not also be inferred, that the. legis- 
 aure meant nothing inconsistent with reason and justice, and that 
 lose were not to go for three years to the state prison, whose of- 
 rnce was not deserving of such a punishment. If it made the law, 
 gave the construction, and must have meant that no man should 
 8 so ivu- ir h 'd for an act free from criminal intent. Even in England, 
 i those cases where the degree of the offence is regulated by the 
 andard of property, you will find the most austere judges instruot- 
 '•g the j nr-, that they are authorized to find the property of less value 
 i:;n even living being knows it is, and they thus rescue the victim 
 om a punishment which their humanity tells them is beyond his 
 hit. Am 1 s', rong then in s u ing that your oaths should bind you to 
 |e very strictest invesiig • < -a .ff .the evidence according to my 
 incipies ; and your consciences should not yield to any tiling tha& 
 
128 
 
 does not bring demonstration home ; and that therefore you mil 
 stop and see whether the testimony compels you to believe that the 
 dagger was not on the ground at the time of the fatal mishap ; and 
 that the prisoner did more than hold it in his hand, without the 
 slightest intention of doing an act that could contribute to the death 1 
 But if you should go farther and believe with me, that in truth the 
 weapon, at the time of the accident, was lying on the ground, and i 
 that in the course of the conflict Mr. Stoughton tripped or fell, ant * 
 in so doing received the mortal wound, how much more conclusive 
 are my arguments! 
 
 These considerations, if you feel them with the force that 1 do 
 will supersede the necessity of all further discussion, and put at 
 end at once to the prosecution, whether Mr. Goodwin’s conduct it 
 the conflict was unlawful or not: for if the essential thing is wanting 
 if it was not a voluntary act , then the unlawfulness alone can nevet 
 make it amount to manslaughter. 
 
 The definition of manslaughter cited by the opposite cottnse 
 from Hawkins, b. 1, c. 20, § 1, is, in a technical sense, correct 
 but I shall render it more exact to the minds of men notaccuslomei 
 to legal discussions, by recurring to Lord Coke himself for the de 
 finition. (3 Inst. 56.) He says: “ There is a homicide which is nei 
 ther aforethought nor voluntary , as if a man kill another by mis 
 adventure or accident.” d here let me, in passing, remark, tha 
 the very division of his subject adopted by Lord Coke, “ homicide 
 which is neither aforethought nor voluntary ,” (i. e. which is neithe 
 murder nor manslaughter ) very strongly justifies the insertion o 
 the word wilful, by Mr. Justice Parker , in his definition of the lat 
 ter offence, and exceedingly fortifies the position on that snbjec 
 which I have already discussed. But to return to my argument 
 Lord Coke in the same passage proceeds : “ And homicide by mis 
 adventure is, when a man doth an act that is not unlawful, which 
 without any evil intent, tendeth to a nun’s death.” Now Serjean 
 Hawkins has substituted for these words, “ without arty evil intent, 
 the words “ without any intent to hurt.'''’ And he has, with littl 
 necessity, substituted the words “lawful act,” for '•'■act not union 
 ful." They surelv mean the same tiling, though the latter expre. 1 
 siori may convey the idea more accurately to your mind. Then t i 
 this definition of Lord Coke I will adhere, and to avoid the confu i 
 sion that arises out of these words, without any intent to hurt, 1 sha i 
 say with Lord Coke, without any intent tending to the man’s dead. | 
 And then if the intention be not to do the art. and if the act be notour 
 lawful,death arising from the tw r o combined togethercan aloneamom 
 to manslaughter. The counsel on the other side mav, perhaps, insi- 
 that to either of these definitions should he added this phrase. vi> 
 without due caution. This has been often said, and I do not think it nt 
 cess ary for us to contend against it ; hut in admitting it. let me appri- 
 you how vou should receive it, by reading a passage from a most ah! 
 criminal judge, ( Foster , 263.) who says, “ I cannot help saving tin 
 the rule of law I have been considering in this place, touching th| 
 consequence of taking or not taking due precaution, doth not see: 
 
12 $ 
 
 iently tempered with mercy. Manslaughter was formerly a capi- 
 al offence, as I shall hereafter show. And even the forfeiture of 
 oods and chattels upon the foot of the present law, is an heavy 
 troke upon a man, guilty, it is true, of an heedless incautious con- 
 uct, but in other respects perfectly innocent. And where the rigour 
 f law bordereth upon injustice, mercy should, if possible, inter- 
 ose in the administration. It is not the part of judges to be per- 
 etually hunting after forfeitures, where the heart is free from guilt. 
 'he)' are ministers appointed by the crown for the ends of public 
 istice ; and should have written on their hearts, the solemn en- 
 rgement his majesty is under, to cause law and justice in mercy 
 • be executed in all his judgments.” 
 
 Now, gentlemen, if the mere forfeiture of goods calls for this 
 erciful administration of justice ; if this respectable judge thus 
 >eaks of tempering the rigour of the law, think of that terrible 
 mishment that must follow upon your verdict of conviction. Tern- 
 sr your verdict also by that same mercy. You are not hunting 
 iter forfeitures of goods ; but you are called upon to utter a fear- 
 1 sentence, far more than forfeiture of goods ; far worse to an 
 mourable mind than death itself. You are not kings, nor bound 
 l the oaths of kings ; but you are bound by the precepts of the 
 'od you worship, ks much as kings can be, to administer justice in 
 ercy. That oath of the king, is only to fix in his mind the admo- 
 tion of the King of kings, and which he gives alike to kings and 
 ibjects, who are equal in his eyes. It speaks only that command 
 i God to man which is embodied in lhs oath, as a divine instruc¬ 
 ts to him and his people. 
 
 What is the nature then of this “due caution ?” Where the 
 lvful act is deliberately begun and carried on, there may be time 
 T caution; and if it be possible to justify, before a jury of this 
 dun'.ry, a judgment like that against Sir John Chichester, it could 
 1 only upon this ground, that the killing was there in a dangerous 
 kid of sport, which the parties had deliberately entered into ; and 
 tin. perhaps, greater caution might be exacted. But here, the 
 c cumstances were such that the mind of the defendant could not 
 l composed, nor could he be self-possessed ; the rule as to him 
 mst therefore be taken with great latitude. Let us illustrate the 
 dtinction by supposing a case. If a number' of persons go on a 
 biting party, it is a lawful act in every person ; if the vessel 
 s iuld be overset, each would endeavour to save himself, which is 
 ao lawful. All might be saved, if all were cautious and delibe- 
 re; they cling to the keel, but one in his flurry shoves another 
 o who is drowned—would you sentence him to the state prison for 
 tlee years, and give him as a reason, that he had not used due 
 cation in his exertions for himself? You could not do so ; every 
 n rciful consideration would warn your conscience^, that in such 
 si den emergencies no man is competent to the exercise of “due 
 cition,” nor master of the ordinary powers of his mind. The 
 ■delusion from this illustration is, that where the act takes place 
 u ler circumstances which naturally destroy all self-command, the 
 
 T7 
 
130 
 
 rule couching observance of clue-caution will receive a very larg 
 and liberal construction. But here 1 may passingly observe, tb; 
 a caution greater than perhaps would be expected on such occasion! 
 was manifested by this unfortunate prisoner, when he took th 
 blade in his hand, and struck with the handle of the dagger in th 
 manner described by Mr. Cambreling. 
 
 I have now, gentlemen, stated'to you the general principles ( . 
 the law of homicide on which we rely ; and before I examine th 
 facts entering into the merits of this case, let me advert to a piec 
 of testimony which, under that law of homicide, 1 think should nt 
 have been introduced at all. Major Smith was examined to prov 
 that the prisoner procured from him the cane unfortunately coi 
 tabling the dagger which gave the wound, but the evening befoi 
 the affray. If that fact could afford any inference, it could only l 
 to affix a charge on my client, from which the grand jury have al 
 solved him, and which you are not to try—from which he is n 
 called upon to defend himself, and which he may well be unpn 
 pared with evidence to explain. But, gentlemen, that inference 
 most strained and uncharitable, and such as should never be applii 
 to human actions. Two gentlemen, friends from childhood, met ui 
 der circumstances of conviviality well calculated to exalt their m 
 tual attachment, and expected to separate again in a day or ttv 
 perhaps for ever. Th.e stick happened to catch Mr. Goodwill 
 eyes, as Major Smith held it on a chair, in a gay and unimporta 
 conversation. Both had sticks not unlike each other, and my die 
 proposed to exchange them as mutual keepsakes. Major Smi 
 says it was done after a few words ; that it rvas understood betwe- 
 them, the exchange was only made as a memento ; and he did n 
 know, that when Mr. Goodwin proposed the exchange, he was awa 
 there was a sword in the witness’s cane. If this is to be urged a* 
 proof of deliberate and premeditated malice, what man can gus 
 the most inconsiderate and thoughtless actions of his life, from t 
 foulest and most terrible construction ? It would be unworthy o 
 jury to bestow on it a moment’s deliberation ; and particularly as 
 has no relation to the issue they are sworn to try. 
 
 In considering ihe facts really connected with that issue, t 
 first question that presents itself is, was the act of Mr. Goodwin 
 his conflict with Mr. Stoughton law-ful ? or, to continue the use off j 
 expression I have already adopted, can it come within Lord Coki I 
 definition as “ no unlawful act ?” To decide this, consider it wi | 
 out adverting to that fatality which ought to have no influence i | 
 your minds in judging of the act itself, and which could only m 
 lead you in determining on its legality or illegality in the abstra 
 Suppose the prisoner was defending himself on an indictment fo; 
 mere assault and battery, or in a civil action by the plea of son •• 
 sault demesne : that is, that he was first assaulted by his adversa 
 This is the fair way of judging, as there is no law peculiarly app 
 cable to manslaughter iu this respect. The legality of Mr. Goo 
 win’s act is to be judged of simply upon this ground ; whether, i-| 
 der the circumstances of the case, he could be found guilty of h; 
 
131 
 
 mg committed an assault and battery. The opposite counsel endea¬ 
 voured to elude this test by citing authorities which are totally in¬ 
 applicable to manslaughter. i hey refer to East’s Cr. Law. vol. 1, 
 p. 239. where, speaking of homicide from transport of passion or 
 heat of blood, the w riter says, “ In no case, however, will the plea 
 of provocation avail the party, if it were sought for and induced by 
 his own act, in order to afford him a pretence for wreaking his 
 malice. As where A and B having fallen out, A says'he will not 
 strike, but will give B a pot of ale to touch him ; on which B strikes, 
 and A kills him : this is murder.” This authority is applicable 
 exclusively to cases of murder, and has no reference to tiie law of 
 manslaughter. It is grounded upon the crafty words used to evade 
 the law, “I will give you a pot of.ale if you will strike me,” 
 that show the previous and premeditated malice which is an in¬ 
 gredient of murder. But it has no application to a case of man ¬ 
 slaughter, where malice is riot at all the question, and where the act 
 stands simple and alone. So in 1 Hale, 457 : “ A and B are at some 
 distance : A bids B take a pin out of the sleeve of A, intending 
 thereby to take an occasion to strike or wound B, which B doth ac¬ 
 cordingly, and then A strikes B, whereof he died : this was ruled 
 murder. First, because it was no provocation when he did it by the 
 consent of A. Second, because it appeared to be a malicious and 
 deliberate artifice, thereby to take occasion to kill B.” I there¬ 
 fore, gentlemen, set aside these and any other authorities concern¬ 
 ing previous provocation, as relating to murder only, and not to 
 manslaughter; and then l contend, on the general principles of the 
 law of assault and battery', that the provocation alleged to have 
 been previously given by Mr. Goodwin to Mr. Stoughton, cannot 
 make his subsequent conflict unlawful. There is no doubt but that 
 the deceased struck the first blow ; for though Mr. Clark did not 
 see it, Weed and Cambreling did ; and the district attorney, with 
 that candour which has marked his proceedings throughout this 
 cause, admitted the fact. It is enough for me then to say, without 
 coming to the express definition of a “ lawful act,” under the au? 
 thority of Lord Coke , that the prisoner’s conduct was not unlawful. 
 
 Our adversaries, however, dispute this position, and contend, 
 that, in the eye of the law, Mr. Goodwin committed the first assault 
 by the pointing of his cane towards Mr. Stoughton ; and for this 
 they cite Hawk. b. 1. c. G2, § 1. “It seems that an assault is an at¬ 
 tempt or offer with force and violence, to do a corporal hurt to 
 Another ; as by striking at him with, or without a weapon, or pre¬ 
 senting a gun at him, at such a distance to which the gun will 
 carry ; or pointing a pitchfork at him, standing within! the reach 
 of it, or by holding up one’s fist at him, or by other such like act 
 done in an angry threatening manner.” But, gentlemen, the doc¬ 
 trine there laid down is totally inapplicable to this case. The acts 
 there specified were held to be assaults, because they were attacks 
 upon the safety of another ; they were intended for the purpose of 
 committing personal violence, and begun and proceeding towards 
 personal injury. But here, the pointing oi the cane was no 
 more an assault than the pointing of the finger. It was an ip- 
 
dicati'on of the person, and nothing more. Let me remind you also, 
 gentlemen, that in such a solemn proceeding as this, the defendant 
 js entitled to the benefit of the legal definition of the offence charg¬ 
 ed upon him in all its parts and strictness. If the provocation ap¬ 
 pears: to you, as 1 fear it must, to have been wrong, fully as I admit 
 it, and deeply as it is regretted by my client more than by any other 
 person, who with a contrite heart says through me, would to God it 
 never had been given, nor the terrible consequences followed from 
 it ; yet neither that contrite admission of the party, nor the lamenta¬ 
 ble consequences of the act, are to deprive him of the benefit of the 
 law in every shape. And the law says, that the pointing, not being 
 with a view to a battery of the person nor to any personal violence, 
 was no assault ; for that the intent of violence is a necessary ingre¬ 
 dient to constitute an assault. 
 
 But that transaction, whatever may have been its character, was 
 ended. Mr. Goodwin had gone on his way, as also had Mr. Stough¬ 
 ton ; and with respect to the consequences of that act, all w as past 
 and over. The returning and following of Mr. Goodwin by Stough¬ 
 ton, was a new and distinct act, which should be entirely separated 
 from the former in your consideration. If Mr. Goodwin had been 
 the person slain, and Mr. Stoughton the person upon trial, he never 
 .could have availed himself of the defence, that his striking Mr. 
 Goodwin was lawful; and if he could not so avail himself, though 
 the calamitous accident has changed the situation of the parties, the 
 act of Stoughton must still continue unlawful ; it therefore follows 
 of necessity, that the resistance to it, and the conflict ensuing upon 
 it, was not util (ireful.” And, in truth, that case, where one said to 
 the other as an excuse, “ take this pin out of my sleeve would 
 apply to Mr. Stoughton with all its severity, if he were upon trial, 
 and not to Mr. Goodwin. I should be sorry to see such severity of 
 construction administered at all ; but, if it were, it could be only in 
 respect to Mr. Stoughton. 
 
 It has been intimated that Mr. Goodwin's continuing the conflict 
 after the deceased began to retreat, was unlawful, and gave that 
 character to the subsequent events. 1 cannot, however, conceive 
 that your verdict will ever sanction this doctrine. In East's Croren 
 Laze, v. 1 . p. 239 , the author, after observing that the punishment 
 inflicted on any sort of provocation, must not greatly exceed the of¬ 
 fence received, adds: “This has been urged with caution; be¬ 
 cause, in cases where the mercj' of the law interposes in pity to 
 human frailty, it will not try the culprit b}' the rigid rule of justice, 
 and examine with the most scrupulous nicety, whether he cut off 
 the exact pound of flesh.” What was the duration of this affray, 
 which, it has been intimated, Mr. Goodwin continued too long? 
 perhaps not half a minute at the utmost. Two or three blows pass¬ 
 ed on each side in an uninterrupted scuffle ; Mr. Stoughton re¬ 
 treated, not because he wished to give up the contest, hut because 
 he found his adversary somewhat stronger than himself; and, per¬ 
 haps, in order to regain a vantage ground. Is such retreating, ac¬ 
 companied with persevering assaults and blows, sufficient to pre- 
 
133 
 
 vent a man Irom using violence to repel the continued violence of 
 an aggressor, and for the purpose of self-defence ? Where was the 
 disposition of Mr. Stoughton to discontinue the conflict ? When did 
 he cease to attack the prisoner, or renounce the original purpose 
 with which he commenced the assault, while he had the capacity to 
 carry it into effect? Mr, Clark says, though perhaps somewhat 
 mistakenly, that after the deceased rose up, he actually struck the 
 prisoner. Mr. Phelps and Mr. Cambreleng say, he appeared deter¬ 
 mined to renew the attack ; and Mr. Weir says, he made an effort to 
 do so. This evidence is, 1 trust, sufficient to prevent the inference 
 that Mr. Stoughton had given up the coniiict, or that the prisoner 
 was bound to suppose he intended doing so. 
 
 Mr. Goodwin is further charged with striking Mr. Stoughton 
 when he was down. Permit me to say, that that fact has no rela¬ 
 tion to what you are to try, unless so far as it affords an inference 
 favourable to my client. Favourable indeed it is, because, as 1 shall 
 hereafter show, it proves how both his hands were employed at 
 the time he is said to have stabbed his adversary ; and also, be¬ 
 cause it shows an unconsciousness of what had taken place. But 
 remember, gentlemen of the jury, you have no evidence before 
 you : and, 1 trust in God, the wide range of tnis earth could not 
 produce the evidence, that Mr. Goodwin was that abandoned 
 wretch who could have continued beating a man in the face, to 
 whom he had already given a mortal wound. Would to God it had 
 not—that no part of this tragedy had taken place ; but it must 
 serve at least to show that he never could be conscious of having 
 stabbed his antagonist before that moment ; and then, or after that, 
 he certainly could not do it, since whilst his hands were both em¬ 
 ployed about his adversary’s face, he could not then plant a dag¬ 
 ger in his heart. 
 
 This brings me to the notice of a o,uestion asked of a witness, as 
 if to make it .testimony in the cause, perhaps without intention. But 
 it was asked, “ is not Mr. Goodwin a military man .?” For what was 
 that asked ? Was it to exhibit him to you, gentlemen of the jury, as 
 a skilful assassin ? Is that an attribute belonging to your army ? Was 
 it in that quality your soldiers marched against your enemies, and 
 fought the glorious battles of their country ? Is that sarcasm appli¬ 
 cable to your forces by sea or land? Does it come properly from 
 one who owes, perhaps his existence, certainly his safety, and his 
 present tranquil enjoyments, to the fatigues, the privations, the 
 sufferings, the virtues and heroism of that army ? If my client was 
 a military man, was it in that school of valour and honour that he 
 could acquire the dipositions of an assassin ? Did he learn to be so 
 in the battle of New-Orleans, in that conflict so glorious to our war¬ 
 riors, and fatal to their foes ? Did he learn it fighting any where 
 in the defence of his country, as our soldiers always did, openly 
 and face to face with their enemies ? Was it in any of those exer¬ 
 tions of body and of spirit, by which a foreign foe was gallantly com¬ 
 batted, and nobly driven from our shores ? What could he have 
 learned in that school, inconsistent with the character of a gentle- 
 
134 
 
 man, and the honour of a soldier ? He certainly would have learned 
 there to meet his enemy in the most deadly combat, and face to 
 face, whenever the necessities of his country and the duties of his 
 calling should require ; but if he is a military man, there is a noble¬ 
 ness in his occupation, which, in itself, should check the surmise, 
 and silence the whisper that he could be an assassin. It may, in¬ 
 deed, have given him too exalted notions of what are called the 
 laws of honour, and may have led to his using those words of pro¬ 
 vocation and those slaps of insult, which both he and 1 deplore ; 
 but most assuredly, it never taught him to use a sword or dagger in 
 any secret, base, or hidden manner, to work the death of an unarm¬ 
 ed adversary. 
 
 Let us now, gentlemen, examine into the circumstances of those 
 blows. I have said, they were only intended to affront or degrade, 
 and not to inflict any injury by personal violence. I need not give a 
 stronger proof than the bare fact, that Mr. Stoughton was lying on the 
 ground when he received them, and not in the attitude ofdefence, and 
 yet they did not leave a mark or bruise. If the prisoner struck with 
 force, when no blow he struck was returned or parried, the marks 
 would have testified to the atrocity of the act. Whatever blows then 
 were given, when Mr. Stoughton was on the ground, as they left no 
 trace, so they were intended to leave none. But it is alleged, these 
 blows were given with a cane, from which a dastardly intention of 
 personal injury is inferred. On this subject there is a direct contra¬ 
 diction of the witnesses. 'J hose who testify to that fact, and those 
 who disprove it, however honest they may be, cannot both be cor¬ 
 rect, and you must, therefore, decide between them. In doing so, I 
 think I can give you one unerring rule ; wherever there is a con¬ 
 trariety of evidence, that statement cannot be believed, which leads 
 to an impossible or an absurd conclusion. And I hope to satisfy you, 
 that believing Mr. Goodwin struck Mr, Stoughton when on the 
 ground, about the head, with the handle of the dagger, would ne¬ 
 cessarily lead to the absurd conclusion that Mr. Stoughton was not 
 stabbed at all, and did not die of any wound ; w hile believing that 
 the blow r s were given only with the hand, leads to aji easy and na¬ 
 tural explanation of his calamitous death. So far, how'ever, as re¬ 
 lates to the acquittal of my client on this indictment, it seems to me, 
 that in whatever shape this fact is put before you, it equally leads 
 to the conclusion that Mr. Stoughton’s death was accidental, and 
 not effected by the voluntary act of Mr. Goodwin. If these blow's 
 were given bj the hand only, either open or clenched, they show 
 that the dagger was then out of his hands, and give great probabili¬ 
 ty, if not certainty, to the conclusion which I am sure you are in¬ 
 clined to draw, that the death was occasioned by that dagger, w'hen 
 it w’as out of the prisoner’s hands. But, suppose those blows to 
 have been given with the handle of the dagger ; the witnesses who 
 attempt to testify to that fact, agree that when they were given in 
 the face, the prisoner held the dagger (as he had done during the 
 conflict, when standing up) by the blade, and struck with the handle. 
 When then was the stab of the depth and direction described to 
 
135 
 
 you, given with the point ? That he had the blade in his hand, botb 
 before and alter the fall, all the witnesses agree who testify to that 
 fact, except Vervalen, who probably saw nothing ; for he deposed 
 to things that could not possibly have happened, and in contradiction 
 to every other witness. Indeed, 1 observed a smile on every coun¬ 
 tenance, and yours amongst the rest, when he related his extraor¬ 
 dinary vision. But, putting him aside, and reasoning on the testi¬ 
 mony of the witnesses who say my client struck w'ith the handle of 
 the dagger w'hen Stoughton was on the ground ; let me ask when 
 was that wound given which penetrated through the ninth and tenth 
 rib, forward and upward, through the heart to the breastbone ? 
 If it were possible to conceive, that fact to be established, it would 
 put the acquittal of my client past all doubt, for it would place it 
 jpon the very extraordinary but very solid ground of certainty, 
 hat Mr. Stoughton was not stabbed with that dagger. 
 
 Now, gentlemen, see how the evidence stands. The opposite 
 ;ounsel must either renounce that part of their own testimony, on 
 vhich they seem mainly to rely, or abandon the conviction of my 
 client ; for they are met by an insuperable difficulty arising from 
 ;hat very testimony. The prisoner held the dagger by the blade, 
 vhile standing face to face engaged in the conflict, and using it upon 
 he head of the deceased. Beyond a doubt, it was not then the 
 vound was given. 1 anticipate indeed that you will be urged to 
 believe the deceased fell, because he had been previously 
 itabbed to the heart. This supposition, however, is not only en- 
 irely gratuitous, sufficient causes being otherwise assigned for the 
 all, but it is repelled by the constant employment of the prisoner’s 
 lands in fighting about the bead of the deceased ; by the impossi- 
 lility of his inflicting the wound described, situated as the parties 
 ire proved to have been in respect to one another; by the position 
 n which the prisoner held the dagger by about the middle of the 
 ilade ; by the great notoriety and conspicuousness of movement 
 vhich would have been necessary for changing the position of the 
 lagger in the hand, and of the arm itself, to give any thing ap- 
 •roaching to such a wound ; and by the acknowledgment of all the 
 vitnesses that no one saw any such movement made. Besides, if 
 be deceased had fallen, because his limbs and. strength failed him 
 i consequence of the stab, the fact would have been immediately 
 bvious to the spectators. If the wound had produced its effect 
 pon his system, and his muscular strength had been so entirely 
 rostrated, he would not have risen and stood as if about to renew 
 le combat till another syncope or fainting seized him. When the 
 me came that the consequences of the wound on his frame became 
 bvious and caused the failure of his strength, he fainted, and never 
 pened his eyes but for a moment with a glare of fury, and then 
 , iosed them for ever. Returning then to my argument on the ccn- 
 usions to be drawn from the contradictory statements of the wit- 
 1, asses, 1 repeat my assertion ; beyond a doubt the wound was not 
 ven when both parties were engaged, face to fate, in the conflict, 
 afore Mr. Stoughton’s fall : and they continued in that attitude un- 
 
136 
 
 til he fell. When that event took place, Mr. Goodwin nearly los 
 his balance, and almost fell with him. If the witnesses are to h 
 believed who assert that while Mr. Stoughton lay on the ground 
 Mr. Goodwin was using the dagger, the same evidence states tlm 
 he held it in the same position, and used it in the same way over tin 
 head ot the deceased. Most assuredly also it was no. then the woun 
 was given. The deceased lay upon his back, rather inclining to tli 
 left side. Where was the space (even if the prisoner’s hands had no 
 been otherwise employed) to permit the placing of that dagger unde 
 the deceased, the driving of it into that part of his body that most par 
 ticularly rested on the ground, and withdrawing it again l The me 
 tion of the arm requisite for such an operation, must have been ix 
 tremely conspicuous, and yet nobody saw it—Mr. Gambreleng sail 
 his arm and yet saw no thrust. If then 1 am correct that the woun 
 could not have been given while the parties were standing eng .gc 
 in conflict—nor yet while the deceased was lying on the grount 
 you are inevitably brought to the time— the onhj time when th 
 wound could have been received : namely, as Mr. btoughton w, 
 falling, or fell; and then it could not have been inflicted by the vc 
 luntary act of Mr. Goodwin. 
 
 The prisoner, though lie did not entirely lose his balance, y< 
 still was falling along with Mr. btoughton. Mow let any man s? ho¬ 
 me how the prisone:, holding the dagger by about the middle of th 
 blade, always in front of the deceased, who was lulling off from hii 
 backwards, and he himself Staggering or falling-forwards, could Inn 
 inflicted a wound beginning near the back, splintering ofl' part i 
 one of the lower ribs, and penetrating ten inches forwards and iq , 
 wards even to the breastbone, winch it injured ; and that uitlioi 
 any of the spectators having seen the necessary change of tht pi 
 sition of the dagger in the prisoner's hand, or of his arm, to infli< 
 the wound ! Let any man, even standing firmly, place himself 
 that position, opposite another, and try with a weapon of that lengil 
 and held in that manner, to inflict such a wound, and he will iuimi 
 diately perceive it is impossible. But when it is further consideft 
 that both were falling, and of course that the necessary physic * 
 force and firmness of position were wanting, it is, to say the leas ^ 
 incredible that the prisoner should not only have inflicted such 
 wound at that moment: but also have withdrawn the instruine 
 again, (the deceased being on his back on the ground) regr.isped 
 by the blade and recommenced his blows about the head of the d 
 ceased, thus twice changing the position of the dagger in his Inn 
 and the position and direction of his right arm ; and all this unpe 
 ceived by any of the surrounding witnesses. 
 
 I have said that under those circumstances the necessary for 
 and firmness of position for the voluntary inflicting of such a wou. 
 were wanting. Evidence has been produced that muscular strene. 
 would be adequate to the giving of that wound — but it is idle f 
 talk about the sufficiency of muscular strength in the abstract. • 
 can only be applicable to this or any particular case, by taking in 
 consideration the position of the parties, and the situation oft; 
 
137 
 
 ■art, the strength of which is to be exerted. In this case, (if the 
 pound be supposed to have been given by the dagger in the prison- 
 r’s hand) no momentum could have been given to the weapon, by 
 npurting to it a velocity before the point was made to touch the 
 ody. The shortness of the human arm, the length of the blade, 
 nci the position in which the dagger must have been held and dri- 
 en, to inflict, by a person standing in front of his adversary, a 
 ound beginning near the hack, between the ninth and tenth ribs, 
 htl going upwards and forwards through the heart to the breast- 
 one, show that if it could have been given at all, the point must 
 ave been applied to the back of the deceased without any ante- 
 sdently acquired momentum or velocity, and forced through a part 
 f one of the ribs, and into the body to the length of ten inches, by 
 iere muscular exertion, commencing from a state of rest. The 
 en- skilful physician who examined the wound and dissected the 
 ody, influenced by these considerations, testified, that under all the 
 rcunjstances of the case, he ’ thought the muscular strength of a 
 an would he inadequate, to the giving of such a wound, and that 
 most have been caused by the fill, which alone could impart the 
 rce and velocity necessary for overcoming the difficulties. Other 
 lysieinns, having no respect to the circumstances of the case, said 
 ey thought the strength of a man would be adequate to drive the 
 igg t in so far ; and to illustrate their opinion you must have ob- 
 rved them drawing back their arms, and then thrusting the dagger 
 rward with the utmost velocity and force. I was stopped in my 
 oss-examination of those witnesses, by which I wished to fix their 
 inds on the situation of the parties, and the impossibility that the 
 eapon could have been driven with that velocity and force ; and 
 rhaps I was rightly stopped ; for I was told that it was your pro- 
 nce to draw these conclusions. I ask you then to draw them now, 
 d I entreat you to consider whether it can he supposed, or rather 
 Ken for granted against evident presumption, against mercy, 
 
 • ainst the character and reputation of the prisoner, that he ex- 
 ■ ted a force to which a very competent judge thinks, and 1 trust 
 ; u will think, the muscular strength of any man would he, under 
 lose circumstances, unequal. 
 
 I therefore sayr and insist, gentlemen of the jury, that whichever 
 it of witnesses you give credit to, you must arrive at the conclu- 
 f n that my client must be acquitted. If his hands alone were 
 uployed aboutthe head ofthe deceased when he was on the ground, 
 ty dagger was then out of the prisoner’s hands, and the natural 
 nclusion is that the wound was received by falling on it, or with 
 i on the ground. If you can believe it was still in his hands, and 
 Md thus by the blade through all the progress of the affair, Mr. 
 Godwin cannot be guilty of tiie crime charged in this indictment, 
 f the death cannot have been occasioned by a stab with that dag¬ 
 s’. Extraordinary and absurd as this certainly appears, yet it is a 
 T:essary conclusion, that the whole of the allegations about the 
 r rtul wound must be untrue, if this part ofthe testimony be taken 
 a the truth. 
 
 18 
 
But in this very singular case, more abundant in contradictioi 
 amongst honest men than 1 ever knew before, where witnesst i 
 speaking of the same thing differ so entirely one from the othe 
 on what are you to rest ? 1 might rely for my client on the unce 
 tainty of proof on behalf of the prosecution. 1 might tell you tli 
 where you were in doubt you were bound to acquit. 
 
 There is, however, a surer and a safer guide for you than tl 
 tongue of any witness. The senses of men may deceive tlier { 
 their memories betray them, their feelings, passions, and appr 
 hensions may mislead them. But if there be any unerring fac | 
 not to be altered by misapprehension or mistake, adopt that f , 
 your guide, and it will be a clue to lead you through the labyrint 
 That fact exists, and though one rib may be mistaken for anothe i 
 the wound itself, its situation, depth, direction and nature, are ce 
 tain. On them I have endeavoured to fix your attention, and if y<|j 
 keep them steadily in view, they will give you as much certainty 1 
 the nature of this case can possibly admit. 
 
 That the cane was used in the conflict there can be no doubt i 
 the weight of evidence, however, is, that the blow after which il i 
 Stoughton fell was given with the fist. Mr. Clark clearly sa 
 so ; Mr. M‘Williams speaks as decidedly to the same fact, and sav* 
 that w hen he was running up, before the knocking down, the batt 
 was with their hands. Mr. Baker also says the same thing. The 
 is therefore much reason to doubt whether the prisoner had tl 
 dagger in his hand, even when Mr. Stoughton fell. But the alleg I 
 tion that Mr. Stoughton was struck with the handle of the daggl 
 while lying on the ground, is much more incredible, according | 
 the evidence. It is only stated by Weir, Haycock, and M‘Go\va 
 Mr. Ball, though he speaks of blows w-ith the cane, does not co 
 firm them. He only says that the prisoner struck Mr. Stought* 
 while falling , two or three blows with the cane, but not after I . 
 fell. Mr. Clark saw no such blows—Mr. Phelps did not see ther 
 Mr. M‘Williams says the prisoner was striking, or going to strii 
 the deceased with his fists, and that he had no cane in his ham 
 Mr. Baker denies that the prisoner had the cane in his hand ; so <4 
 Mr. Wilder and Mr. Cambreleng. 
 
 Further, Mr. Wilder says his impression is, that he saw the da i 
 ger on the cartway, immediately after Mr. Stoughton was raise 
 and on the spot where they were, and that he did not see it in M 
 Goodwin’s hand. Mr. Weed says-he saw the two pieces of the cai 
 on the cartway : he however adds, that this was while Mr. Stoug 
 ton was down. On this latter point I doubt his accuracy as to tl | 
 exact time ; as 1 am also compelled to think him mistaken abo 
 the number of blows which he says were struck before Mr- Stoug 
 ton fell. Indeed the whole affair took place so rapidly, that sho i 
 spaces of time might easily be confounded, and the facts which a 
 certain, show he must have erred in point of time. The dagger, 
 have been lying on the ground by the side of Mr. Stoughton win 
 he was down, must have been drawn ton inches out of the wou 
 and placed Beside him. Mr. Stoughton's f.dl was oi. his back, ai 
 
J 39 
 
 •ather on the left, which was the wounded sideband he lay in that 
 >osition : Mr. Goodwin’s hands are said to have been active from 
 he moment of the fall about the face of the deceased. The wound 
 have already shown, and 1 think it is certain, could not have been 
 ;iven in the conflict before the fall, but must have been received 
 ,uring or by the fall. How then could the hand of Mr. Goodwin 
 tave drawn the dagger out from the back of a man lying on his 
 iack, and on the wounded part, for such a length as ten inches, and 
 otbe observed, and his hands stated to have been constantly active 
 bout his adversary’s face ? Is it not more likely that Mr. Weed is 
 aistakenas to a few seconds than that impossibilities have happened? 
 le certainly is mistaken as to the number of blows which passed 
 efore Mr. Stoughton's fall. Although looking on from the very 
 rst, be saw but one blow given by Mr. Stoughton, and one by Mf. 
 ioodwin, which knocked the former down. Every other witness 
 resent at that part of the transaction, (for Mr. Clark was not) agree 
 lat there were several blows given by each of the parties before 
 Ir. Stoughton fell. In this respect as well as about the dagger, if 
 Ir. Weed had not been disturbed and agitated, he would not have 
 een mistaken. But he could not have seen the dagger lying by 
 Ir, Stoughton on the ground ; for in another part of his testimony, 
 e said that when Mr. Stoughton fell, owing to the crowd, he could 
 ot see him, and he did not go off his stoop to help him up ; he 
 lerefore could not have seen the dagger at that time. No doubt 
 e saw the dagger on the ground, but it was at the time that 
 Ir. Stoughton fainted, and was again near falling; and now to his 
 lind’s eye it appears as if he saw it when the deceased had fallen, 
 e is only wrong in the appropriation of a small portion of time in 
 very rapid transaction ; and if so. he was right in all the rest. 
 
 It appears from the testimony of some witnesses, that the prison- 
 [• had the dagger in his hand after the affray ; but none of them 
 av it there till after Mr, Stoughton fainted. Mr. Clark, who goes 
 rther in this respect than any other, only said he saw it in Mr. 
 oodwin’s hand while the deceased was fainting, and he yesterday 
 id it was after Mr. Stoughton had hunted. As to a small portion of 
 ne or minute fact, his accuracy also may well be questioned, for 
 3 is doubtless inaccurate in his account of the scuffle, and of Mr. 
 oughton’s striking after he was raised up. Surely then, no witness 
 ho is incorrect in prominent transactions, can be implicitly^ relied 
 i for small portions of time, of which he now speaks only from 
 stant recollections. Neither Weir, Baker, Ball, nor McWilliams, 
 fw the dagger in Mr. Goodwin’s hands after the affray and before 
 r. Stoughton had fainted. M‘Williams was peculiarly well situa- 
 td for seeing every thing, and is pe'rhaps the most consistent and 
 irrect of all the witnesses in his whole story. M-Gowan cannot 
 iiy whether the prisoner had the dagger in his hand when sepa- 
 J|ted from Mr. Stoughton. Mr. Wilder denies it, and so does Mr. 
 •imhreleng. The only explanation which can reconcile this tes- 
 laony is, that the dagger was. picked up and given to the prisoner ; 
 :d Mr. Cambreleng says his impression is that such was the fact. 
 
140 
 
 Iffy client, a stranger, and knowing nobody who was there, either 
 by name or person, except Mr. Cambreleng, and not having beei 
 himself observant of incidents, at the time apparently immaterial 
 cannot designate by whom this was done, nor produce him as i 
 witness ; but the probability of the fact, its tendency to reconcile 
 apparently contradictory evidence, and the impression of Mr. Cam 
 breleng, must be enough to induce a jury to believe that it tool | 
 place. 
 
 I think the observations I have submitted to you, are sufficient tc 
 make you reject that statement, upon which there is so much con 
 tradictory testimony, that the prisoner had the dagger in his hand 
 and was using it about the head of the deceased w hile he was ly ins 
 on the ground. If that be not the fact, and that my client had be 
 fore that parted with the dagger, let us see whether an explanatioi 
 of the fatal accident does not naturally present itself. The prisone 
 was himself in danger of falling, and if he had retained the daggei 
 in the position in which he was holding it, he himself would h.iv< 
 been the person to have fallen on it and to have received th( 
 wound. From a vague apprehension of this danger, or in the strug ' 
 gle to save himsell from losing his balance, he parted with the wea 
 pon. While it was falling to the ground, the deceased was falling also 
 the point may have entangled in his outer coat, and the weight ofthi 
 handle may have brought it to the position capable of giving b 
 the wound the direction which has he- n sworn to, or Mr. Stougbtoi 
 may have fallen on the dagger as the handle reached and rested 01 
 the ground, before it could acquire an horizontal position ; and af 
 tenvards, when Mr. Stoughton was raised up, the action and motioi 
 in rising, or tj)e weight and shifting of his clothing, or accidenta 
 rubbing against some of those that were iu contact with him, ma; 
 have contributed with the weight and bulk of the handle, and th 
 slender and tapered form of the blade, to make it fall out, unob 
 served and unnoticed in the hurry of the transaction. 
 
 Our adversaries have no right to object against this explanatio 
 of the melancholy catastrophe, that it is unproved. The burthen c 
 proof, as 1 have already slated, still rests on the prosecutors; an 
 it is incumbent on them to show a state of tacts, fixing with reason 
 able certainty the infliction of the wound, on a voluntary act of th' 
 prisoner, and irreconcilable with any supposition of misadventure 
 It may be said, that the casualties which i contend for are nc 
 likely to occur, and are in themselves extraordinary. To that 
 answer, that stronger objections lie against the supposition of 
 voluntary stabbing by the prisoner, for it is in itself nearly if nc 
 entirely impossible. The range of chances is almost incalculable an 
 infinite, and every one the least conversant with the accidents c 
 life, knows that most extraordinary results in appearance, frequent 
 ly happen fortuitously. There is scarcely a man who has not ofte 
 seen things happen by accident, which he could not accomplish b 
 any effort of dexterity or skill. And 1 do not hesitate to say, th; 
 an impartial reflector on this subject, will he much more incline 
 to believe that unexplained and perhaps unnoticed casualties cor 
 curred to cause the intliction of. the fatal wound, than that it we < 
 
141 
 
 he result of a voluntary act of the prisoner, which could not bat 
 iave engaged the attention of all the spectators, and which was ot>- 
 erved by none of them. 
 
 It is true, that from the contradiction of the witnesses, nothing 
 :xcept the wound itself, and its direction, can be syid to be proved 
 vitli certainty ; and the unfortunate man who stands accused before 
 on knows nothing of the fatal misfortune, nor could he without 
 mowledge of what was to be proved, either instruct or guide us. I 
 ini therefore obliged to reason in the alternative, and to show, that 
 rom no statement of the facts can an impartial jury derive suffi- 
 ient evidence of his guilt: and in making inferences for or against 
 he prisoner, justice and mercy should go hand in hand. 
 
 The conduct of the prisoner after the fact, shows he was not 
 onscious of the fatality, and that it was entirely a misfortune. The 
 urprize he manifested when the unsheathed dagger was given to 
 dm : his deliberately remaining on the ground until Mr. Stoughton 
 vas carried into the neighbouring store, and his only then retiring 
 >y the advice of Mr. Cambreleng : the open manner in which lie 
 tept the dagger in his hand, without disguise, after it had been 
 ;iven to him : all these things show that he had not knowingly given 
 . wound. Had he been conscious of killing the deceased with that 
 ame dagger, would he not have thrown or given it away ? Would 
 le not have disappeared among the crowd and flung it into some 
 rea as he passed. He did not believe that Stoughton was a dying 
 nan ; but when he saw the situation in which Stoughton was car- 
 ied into the store, and heard the expression of Mr. Phelps, it first 
 ccurred to his mind that some unfortunate accident had happened 
 f'hich he was unable to explain ; and then for the first time he asks 
 fhether it would not be more prudent to pass over to Jersey for a 
 ime, than to remain exposed to the threatening hostility of the 
 rowd. 
 
 He arrives safely in Jersey ; would not conscious guilt, if he 
 pere guilty, (for conscience will make cowards of us all) have 
 ounselled flight ? On the contrary, he walks with company to the 
 avern, where he remains two or three hours, at liberty to dispose of 
 imselfas he may think best. He seeks no opportunity' to escape ; 
 nd when the officers of justice at length come over and intimate 
 3 him their purpose, though he was apprised they had no legal 
 uthority to touch him, and full well knew the spirit and ariijry 
 ?alousy of that stale, against what they consider as the usurpations 
 nd encroachments of New-York ; though he had every reason to 
 elieve that an army would have turned out to oppose any persons 
 'ho would dare to take a prisoner from among them, and convey 
 im back to this city, in violation of their state authority ; yet he 
 t once expressed his determination and readiness to accompany 
 iem. And notwithstanding the courage and address of Col. War- 
 er, if my client had raised that hue and cry, he w; uid have exci- 
 ;d a host that would have made a bloody catastrophe to the expe- 
 ttion of Col. Warner and his officers. 
 
 But no he resisted the opiuion intimated by a man of the first 
 
142 
 
 legal information. He told Judge Butler, I know my rights, bit I «vi 
 make no resistance. 1 will not withdraw myself f rom the laws n< 
 from the jurisdiction of New-} ork. In all tiiis transaction do yo 
 not find a steady calmness, and an absence of all self-reproacl 
 which must powerfully weigh on his side in the scales of justice '! 
 
 Gentlemen of the jury, 1 am the last to address you on behalf (J 
 my client, and 1 must now commit his worldly prospects, his ch; j 
 meter, his happiness and fate on earth, to the adverse observatioi 1 
 of most able counsel, and to the deliberations of your judgment 
 At the time of life to which most of you are arrived, 1 cannot ho pi 
 successfully to call on you, as perhaps 1 might on younger men, ar 
 entreat you to commune with your own hearts, and to consider th 
 failings and the frailties of youth. I scarcely dare say to you, that th 
 indiscretions of a young man often result from the noblest clemen 
 of our nature ; that God has given to him warm blood, a s iiiguin 
 temperament and ardent spirit ; that nature will occ. sionall 
 have its course, and that the workings of nature must be indulgent!" 
 and mercifully viewed by all who are made by Nature’s God. 
 fear your opinions may be too severe for such an appeal, and thil 
 there is no point of contact between you and the unfortunate prf 
 soner at tiie bar, by whicii 1 can hope to awaken your sympathies! 
 
 But there surely i-some of you must be fathers. Has any on 1 
 
 among you a son, noble, brave and generous, whom you love wit J 
 ail a father’s fondness, who is the delight and pride of bis mother! 
 heart, and lovely in the eyes of his sisters ? Think on hint. He mad 
 be involved by the hasty error of a moment, or by the precipitanc! 
 of another, in one of those terrible conflicts which the noblest ar. I 
 the bravest cannot always avoid. Jfyou havesuch a sou, my eloqueijl 
 adversaries, who are to speak when 1 must be silent, may perha|! 
 place him before your eyes, and make a parallel between his fat t ! 
 and that of Stoughton. If so, 1 must submit to it. But let me cor* 
 jure you, that even the tender feelings they may excite, may tn 
 estrange your lie arts from mercy. Remember also, that if he .-houl 
 be engaged in such a deadly contest, lie may not be so fortunaUj 
 as to close his eyes, and escape from the sorrows, the calamities, th jj 
 miseries, and the agonies of life. He may be the wretched surv I 
 vor : though guiltles* of any evil intent, he may be doomed to nou: 
 ish in his bosom a never-ending pang ; you may hear l.im exclaii *1 
 to yon in the depth of grief, as that young man has to mysel a 
 “ Would to God I were in Stoughton's place!” He may stand a> e 
 cased in that very box, surrounded by the fears and anxious wishe 
 but 1 trust in God, protected bv the prayers, of a denting and da 
 traded mother, and of 1 1 is agonized sisters. He may stand in th. | 
 box, and you may occupy from day to day, that seat of torturin' ] 
 suspense which the gallant brother of my client has filled for nod 
 so many days. A jury may be called to pass upon his actions, ariw 
 to devote to ignominy, one intended by nature to be an ornament t 
 the community in which he lives, and whose heart is guiltless < 
 any criminal design. By what rules wrnuld you wish that son to f 
 judged ? Would it be by those rules, if any such there be of hum. 
 contrivance, which are reckless of the innocence of man’s iutei 
 
143 
 
 ion, which adjust offences by artificial reasonings, and constitute 
 rimes from a guilt created by themselves ; or by that rule which 
 onies direct from God, and by which he administers justice in 
 lercy to all his creatures ? Would you not entreat that his fellow 
 len might deal with him, as you trust the great Searcher of Hearts 
 ill deal with him on the final judgment of us all? So do you by 
 ry client. If his intentions were base and wicked, 1 do not seek to 
 iv'e him ; but 1 entreat you, try him by his intentions, as that 
 udge will do who regards net technical distinctions, which are the 
 ffspring and the proof of human weakness ; whose all-seeing eye 
 ioks into the heart of man, and if that heart is guilty will condemn ; 
 ut if innocent, will acquit. I call upon you now, and I only ask 
 ou to act with the prisoner, as 1 hope the God of mercies will, 
 hen you and he shall stand before that awful presence; you to 
 lswer for your verdict, and he for his indiscretions. Let your 
 idgments be tempered by a portion of the Almighty’s loveliest and 
 finest attribute. The rule by which he will judge us sinners, 
 reds a light of justice for your guidance, compared with which, 
 ie learning of these books is darkness, and wherever they blindly 
 epart from it, they are only filled with technical subtleties and 
 etapbysical error. Like the God of wisdom and benevolence, at- 
 ch crime to the intention, and to nothing else—absolve the inno- 
 ■nt of heart; and when you return to the bar with your verdict, 
 y to my client in the blessed words of the Redeeming Son of that 
 od—“ Go, and sin no more.” 
 
 There was now a short recess—the jury were permitted to take 
 me refreshment, and being again called over and answering, Mr. 
 riffin, on the part of the prosecution, then addressed the jury as 
 Hows : 
 
 Gentlemen of the Jury ; 
 
 We have now reached the period of this interesting trial when 
 : becomes my duty as one of the counsel to whom the cause of the 
 ople has been committed, to address you. The event which 
 :ve rise to this trial was one calculated to make a deep arid lasting 
 impression. The fatal 21st of December, 1819, is a day long to 
 1 remembered. On that day our city was alarmed, not with the 
 <y of fire, to which our ears are accustomed, but with the cry of 
 nrder i Nor was it a causeless alarm. An interesting young man 
 ■ one who had already become the idol of his relatives, and who 
 ]omised to become an ornament to his profession, and a blessing to 
 ii country, lay in our most public street, writhing in the agonies 
 < a violent death, his heart perforated with a dagger. The grand 
 j y of our city have found that the prisoner at the bar was the 
 tthorof this appalling scene; and that the homicide was commit- 
 tl under such circumstances as rendered it felonious. Upon this 
 c ^rge, the prisoner, has been brought to his trial; and surely n6 
 caused person ever appeared before a more humane court, or a 
 fre patient and indulgent jury. If according to the most charita- 
 i!j: construction of the law and of the evidence, the prisoner can 
 1 found innocent, then in the sincerity of my heart 1 say, “God 
 
144 
 
 send him a good deliverance.” And even the afflicted parents < 
 the deceased, the sanctuary of whose broken hearts one of th 
 counsel for the prisoner has so needlessly violated by most unjust! j 
 imputing to them efforts to poison the public mind and pollute th 
 streams of justice —even these agonized and traduced parents, fro 
 the depth of their sorrow, will also say, if it be possible that th , 
 prisoner is innocent, “ God send him a good deliverance.” But j 
 the pri'Oner is beyond peradventure guilty —if he has wanton! . 
 imbrued his hands in human blood, audMared to commit this outraj 
 in the midst of a populous and peaceful city, and in the open face i 
 day, then, gentlemen, not only the laws of earth and of heavei i 
 but even the dictates of humanity, demand his condemnation. T i 
 turn him loose again upon an injured community, unpunished at 1 
 unreproved, perhaps to march in triumph over the very spot whei j 
 Stoughton fell, would be an event not only repulsive to justice, b | 
 an event at which mercy herself, angel-eyed and heaven-hearted;^ 
 she is, would drop an indignant tear. 
 
 In trials for homicide, the first inquiry that presents itself i j 
 whether a homicide has in fact been committed. In the prese I 
 case, tnis point unfortunately admits of not a shade of doubt, 
 is hut too true that the lamented Stoughton sleeps, never more | 
 this world to wake. In the morning of life, with an horizon befo 
 him as broad and as brilliant as ever gladdened the eye of an Am 
 rican youth, he has been suddenly consigned, by a violent death, 1 
 the <1 irk and silent tomb. 
 
 The next question in the order of inquiry is, whether the pi •. 
 soner at the bar committed this homicide. The counsel for t , 
 prisoner have relied with great emphasis on the supposed confusi > 
 of the testimony. The occurrence to which the testimony refei 
 was calculated to produce confusion and dismay among those wj 
 beheld it ; and it would be passing strange indeed, it in the history' 1 
 such a scene all the witnesses should recollect alike. But it w 
 be found that the great features of the testimony, in substance, h, 
 inonize. Nor is it surprising that there is no witness who saw t* 
 mortal wound inflicted. The confusion of the moment, and til 
 dress of the deceased and the prisoner, both of whom had co<| 
 with large capes descending nearly to their elbows, afford a su- 
 cient explanation. If the wound was given by an underhand bio, 
 it was indeed scarcely possible tlpit any of the spectators shod 
 have seen it. That no eye beheld the mortal stab, is not, therefo, 
 a circumstance from whence any inference in favour of the p- 
 soner can be correctly drawn. The law does not require that mi- 
 sure of evidence. Positive proof is never indispensably requisil 
 A radical error upon this subject sometimes obtrudes itself into I; 
 minds of jurymen, especially upon trials for homicide. Permit 5 j 
 to say, that it is a dangerous error ; an error which, if indulged , ' 
 must always embarrass, and may often totally obstruct the admi- 
 stration of justice. Adopt the position that positive proof is a i* 
 cessary prerequisite to conviction in cases of homicide, and yout • 
 once throw the mantle of impunity over that dark department f 
 
145 
 
 rime where poison is the instrument of murder. Who that is bent 
 n this foulest of offences, calls in a witness to see him administer 
 he fatal drug ? Adopt this position, and assassination may prowl in 
 riumpb through the land, and deal his deadly blows in safety, if he 
 nly deals them unseen. But this is not a position sanctioned by 
 ur law. Many a culprit has been consigned to the gallows and the 
 ibbet, and that too through the instrumentality of the most intelli- 
 ent and humane jurors and judges, upon the strength, the over¬ 
 whelming strength of mere circumstantial evidence. Facts and 
 ircumstahces are nature’s testimony ; and they ofltimes speak a 
 lore authoritative and convincing language than that of the most 
 ositive witness. Witnesses may be depraved, witnesses may de¬ 
 rive ; but facts and circumstances are incapable of corruption, 
 icts and circumstances never lie. 
 
 And do not the circumstances connected with this transaction 
 iree upon the most reluctant mind the melancholy conviction, that 
 le prisoner at the bar is guilty of the homicide wherewith he is 
 harged ? In the front of these circumstances stands the prominent 
 nd conceded fact, that the death of the deceased was occasioned 
 y the prisoner’s dagger. Now, either the deceased fell upon that 
 agger when it was upon the ground, or else^ it was held in the 
 risoner’s hand when it gave the mortal wound. If I am not mis- 
 iken, the evidence must convince you beyond the reach of doubt, 
 pat the first of these suppositions is utterly impossible. Look at 
 le handle of that dagger. You perceive that its end is not square 
 f flat, but oblique. Nothing but a miracle could make it stand ora 
 s end, unsupported as it must have been by any stone, ice, or 
 her contiguous substance lying in the street 5 and the conjecture 
 sat the dagger might have been upheld and directed to the heart 
 the deceased by being entangled in his garments, is scarcely 
 ithin the range of possibility. Again, the witnesses inform us 
 at the deceased fell on his back. Then how could the dagger, 
 us standing on the ground, have entered his side, and perforated 
 ijs heart ? The dagger thus situated, even if you suppose that by 
 me magic power it could have sustained itself On its end, must 
 ive entered the deceased through the back, and not through the side, 
 isides, it is at least difficult to suppose that the dagger would have 
 1 tricated itself from the body of the deceased without extraneous 
 i !, and without being seen. But why waste time in this process of 
 lasoning, when the proof is positive and clear, that from the com- 
 ipncement of the affray, until death concluded it, the dagger never 
 I t the prisoner’s hand ? When death had closed the scene, and not 
 1i then, the prisoner threw the dagger away. As this appears to me 
 the a controlling point in the cause, I beg the favour of your pa- 
 t nt attention while I proceed step by step in the examination of 
 tj evidence hearing upon it. That the dagger was in the prison- 
 <l’s hand at the commencement of the affray, that he used it in the 
 embat, and that it continued in his hand down to the time when 
 ywghton fell, appears from the testimony of Weed, Weir, Hay- 
 rik, Ball, Phelps, M'Gowan, and Vanvalen. If the testimony of 
 
 19 
 
 
146 
 
 these seven witnesses needed any confirmation, you have it froi 
 the lips of Mr. Cambreling. He has testified before you under t 
 common circumstances. He was the companion, and is the frier 
 of the prisoner ; and yet we ventured to appeal to him on the pa 
 of the prosecution l We were not ignorant of the force of h 
 friendship : even in the course of the present trial, we had seen 
 filling his sympathizing eye, sometimes with the tear of hope, ai 
 sometimes with that of concern. We knew which way his hea 1 
 would lead him, but we also knew that his conscience would 1 
 stronger than his heart. Nor has he disappointed our confidenc 
 Though he has clung close to his friend, he has adhered still clos> 
 to his own integrity. Even from him we have extorted decish 
 evidence of the important fact, that down to the time of Stoughton 
 fall, the prisoner still retained the dagger. And after such ev 
 dence, we need not wonder that one of the prisoner’s own conns 
 found himself obliged in the course of his argument to concede tl 
 fact, that the dagger wa3 thus retained by the prisoner. 
 
 But the evidence does not stop here : Weir, Haycock, M'Gowa 
 and Vanvalen, inform us that while the deceased was down, the di ( 
 tinctly saw the dagger in the prisoner’s hand. Even if you disr 
 gard the testimony of Vanvalen on account of his misconception 
 to the manner in which the dagger was held, you have still the p 
 silive testimony of three witnesses as to the prisoner’s possessi f 
 the dagger while the deceased was down. It is true that the oth 
 witnesses did not then see the dagger in the prisoner’s hand. But 
 the negative circumstance that the last mentioned witnesses c . 
 Dot happen to see the dagger at that time, to controul and outwei: jj 
 the positive oaths of the witnesses who testify that they then d ■ 
 tinctly saw it ? Does not the plainest understanding recognize a 
 sanction the well known rule of our law, that the positive testinc 
 ny of even a single witness counterbalances and overrules the tes 
 mony of many negative ones ? 
 
 But we have reached another epoch in the history of this transi¬ 
 tion. The deceased has risen on his feet. For a moment, he assurn 
 the attitude of defence, but he assumes it fora moment only. T;. 
 paleness of death is seated on his brow, and in an instant he f:u 
 into the arms of a bystander. At this period the fatal dagger is s,' 
 seen in the prisoner's right hand. Mr. Benjamin Clark tells you, tl: 
 he then saw it there. And you may readily conceive that the vie 
 of it, under those circumstances, was well calculated to make a dei 
 and permanent impression on his memory ; an impression whit, 
 perhaps, no change of place or lapse of time will ever obliterate : 
 impair. M‘Williams, who received the deceased in his arr, 
 
 and M‘Gowan, who had witnessed the transaction from an ear < 
 period, confirm in substance the testimony oi Mr. Clark ; andt | 
 further confirmation is wanted, you have it from Mr. Leonard I- 
 ker, who testifies that after the final fall of Stoughton, he saw u 
 prisoner throw away the dagger. 
 
 From this review of the testimony, it clearly appears that l 
 prisoner held and used the dagger until Stoughton fell; that wh- 
 
147 
 
 Stoughton was down, the prisoner retained it stiil ; and that after 
 ;he deceased had risen, and finall y relapsed into the arms of death, 
 :hen, even then, the prisoner continued to wield in his right hand 
 :be fatal weapon! And are we now to be told that the dagger was 
 )n the ground, and that unfortunately the deceased fell upon it there? 
 How came the dagger on the ground, and in the very track in 
 which Stoughton was retreating, and how came it back again into 
 he prisoner’s hand ? If it was thrown or fell from him before the 
 'atal deed was done, why did no person, not even Mr. Cambreleng, 
 iee or hear it fall ? And who restored it to the prisoner ? Not even 
 Mr. Cambreleng has ventured to swear that any person restored it. 
 \nd had such a person existed, would he not have announced him- 
 ;elf as a witness, or at least have been discovered by the industry 
 )f the prisoner’s friends ? The visionary theory then, that by per- 
 idventure the dagger was on the ground, and the deceased fell on 
 it there, is dissolved by the stubborn fact, that until after the work 
 if death was accomplished, the dagger never went out of the pri- 
 ioner’s hand. Nor has the prosecution any difficulty to encounter 
 rom the alleged want of power in the human arm to inflict such a 
 vound, in the then situation of the parties. The situation of the 
 >nrties was constantly varying, and therefore forms a ground for 
 to definite theory. Sometimes the deceased presented his front, and 
 n his retreat, he no doubt sometimes presented his side to the as- 
 ailant. The supposed lack of power in the human arm to inflict 
 uch a wound, rests on no other basis than the solitary unsupported 
 ipinion of Dr. Mott. Opposed to his, stand arrayed the opinions of 
 bur surgeons as respectable as himself. That the arm of an athletic 
 nan, invigorated with rage, is unable with such a weapon to inflict 
 uch a wound i To refute this supposition, we need not travel back 
 o the times of Sampson or Achilles, nor need we have resorted to 
 he learned gentlemen of the faculty. Contemplate for yourselves, 
 he prowess of a vengeful right arm at the present day ; mark its 
 perations during a single campaign, or even a single battle ; see it 
 evering limbs from their trunks, and cleaving heads asunder ! An ( d 
 hen judge for yourselves, in what estimation you are to hold the 
 iypothesis of the learned Doctor Mott. Nor was the arm of the pri- 
 oner an inexperienced one. To show this, a witness was asked 
 ffiether the prisoner had not been a military man. The object of 
 he question was not, as the adverse counsel have most unjustly in- 
 inuated, to cast indirect reproach upon the military and naval 
 eroes of our country. Its object was simply to show, that from his 
 ursuits in life, the prisoner must have been expert in the use of 
 mis. 
 
 The supposition of the dagger’s being on the ground, and that 
 le deceased fell or was thrown upon it, being thus excluded by the 
 vidence, it will be useless for me to follow the learned counsel for 
 le prisoner, in the ingenious inferences which they have attempt- 
 d to deduce from that supposition, or to inquire whether or not 
 eath thus occasioned would be manslaughter, and manslaughter 
 iabls under the present form of indictment. Willing as I 
 
148 
 
 should be, to assume the affirmative of each of these questions, 
 am relieved from that duty by a mass of evidence, clearly showir 
 that the dagger was grasped in the prisoner’s hand when it pent 
 trated the heart of the deceased. If this is indeed the necessai . 
 inference from the testimony, it follows, of course, that the impor 
 ant point has been established, even according to the very letter i 
 the indictment, that the prisoner committed the homicide. And tt 
 establishment of this point, places the case within the range of tk 
 principle of criminal law, which 1 submitted to you in an early stag 
 of the trial : That in every charge of homicide , the fact of killing beir, 
 first made out , all the circumstances of excuse or justification are i 
 be satisjactorily proved by the prisoner.*' Has the prisoner, in tb 
 case before you, satisfactorily prov ed any circumstances of justit 
 cation or excuse? The justification of self-defence i3 scarcel 
 pretended. The excuse of accident is relied on. One pretence ( 
 accident has already been exploded. Other modes of accident ar 
 suggested ; but has any of them been satisfactorily proved ? It i 
 not for us to disprove these suggestions, but for the prisoner cleai 
 ly to establish them. Without, however, further pressing the prir 
 ciple which devolves upon the prisoner the burden of the proo 
 vve will proceed to show that the excuse of accident, even it it e^ 
 isted in point of fact, could not, under the circumstances of th 
 present case, afford the prisoner any legal defence. And here t 
 must invite your attention to another principle of law, which l pr< 
 sented to your consideration at an early stage of this cause. Th 
 principle here alluded to is this : That wherever the defence of acc 
 dent is relied on, in a case of homicide, it must appear that the perse | 
 committing the homicide was not engaged in a violation of the law 
 If the shedder of human blood expects to escape with impunity, h 
 must show that though his hands are stained, his heart was pun 
 and that his feet were not treading in forbidden paths. The c.asi 
 which have been read to you from the books, (here the couns' 
 went at large into the cases which he had before cited) show th 
 antiquity, the universality, and the sacredness ot this great princ 
 pie of the common law. The counsel for the prisoner, aware ( 
 the tremendous bearing of this principle upon their client's casr 
 have intimated to you, in a way not to be misunderstood, their wis 
 that you should expunge from the common law this ancient and vit 
 principle, or that you should at least modify, impair, and cramp i 
 operation. In reply to this intimation, 1 might remind you of yor 
 oath. But cancel that oath, and I trust that your decision would t 
 the same. It must be the same, if you have duly considered th 
 utility and majesty of that venerable system ofjurisprudence, know 
 by the name of the common law; a system which our forefatkei 
 brought with them to this country, and which they hugged to the 
 bosoms with almost as much ardour as they did their religion, 
 was at the altar of this very common law, that the spark of 17" 
 
 * Seepage 105. f See pages 105, 10S. 
 
S49 
 
 ras kindled. And if our revolution differed from all other revolu- 
 10 ns that preceded, or have followed it—if it differed from that 
 rhich is now working its convulsive course in the southern part of 
 bis hemisphere—if our infant independence was not baptized in 
 ivil blood, it was because the common law “rode on the whirl- 
 /ind and directed the storm.” This common law has been our 
 ountry’s earliest, best, and may it remain its latest friend. Vene- 
 ate, and teach your posterity to venerate its transcendent virtues ; 
 espect even its foibles ; and let no rude hand pluck a hair from 
 is hoary bead. 
 
 Nor is this principle of the common law harsh or unreasonable, 
 f a man will engage in an unlawful enterprize, or pursue any eu- 
 arprise whatsoever by unlawful means, or with unlawful weapons, 
 e must be contented to do it at his peril ; and if a homicide oc- 
 urs, he ought not to expect that the law will hold him guiltless. 
 ,et us apply this principle to the case under consideration. On the 
 1 st of December, at the hour of three o’clock, the deceased w’as 
 oing up Broadway, probably with an intention of proceeding to 
 is father’s house. The prisoner at the bar, in company with Mr. 
 •ambreleng, met him. The deceased was unarmed ; the prisoner 
 'as armed with a swordcane. As he approached the deceased, 
 te prisoner pointed at him with his cane. Perhaps this pointing 
 f the cane was of itself a consummated offence, 
 
 (The Mayor here observed, that he did not consider the pointing 
 f the cane, under the circumstances, as coming within the legal 
 otion of an assault.) 
 
 Mr. Griffin proceeded.—The pointing of the cane was the light- 
 st circumstance of the aggression. it was the outrage of the 
 ingue that gave to the transaction its character. The words, 
 there goes a scoundrel and coward,” accompanied the pointing of 
 le cane, and the words were reiterated by the prisoner as he pass- 
 d the deceased. The pointing of the cane was seen, and the in- 
 ilting appellations were heard by the person for whom they were 
 itended. The deceased instinctively paused. But he remembered 
 hat was due to the laws of his country : he communed with his indig- 
 mt spirit, and for a moment impressed upon it the mighty resolution 
 ’ risingabove the insult. He proceeded towards home, but the load 
 as heavier than he could bear ; reflection goaded him to frenzy. He 
 id been pointed at in our most public street, and, in the presence of a 
 itness, branded with the appellations of scoundrel and coward. He 
 It himself to be an outlaw in the universe. Hapless youth! 
 ’hither could he go ? Could he enter the presence of his venera- 
 e and revered mother, branded with the appellations of scound- 
 1 and coward ? Could he proceed to the house of a father of Cas- 
 ian honour, branded with the appellations of scoundrel and cow- 
 d ? Where, oh where could he spend his hours of conviviality, 
 ■anded with the appellations of scoundrel and coward ? The 
 iceased returned ; he gave a blow. Had he done otherwise, 
 i must have been something more or less than human. He 
 ust have had much of the brute, or something of the divinity 
 
160 
 
 about bun. He must have been sunk below the level of the Ho 
 tentot, or else he must have taken deep lessons in the school < 
 him, who spoke as man never spoke, and whose kingdom is not • 
 this world. But the deceased did not begin the affray. It is 
 mockery on his memory to say that he began the affray. The fir 
 blow was the blow of the tongue; a blow more piercing than th: 
 which the 1 dagger gave. 
 
 But the second act of the tragedy is at hand. Upon receiving 
 slight blow, which he himself had provoked, and indeed, calculatin 
 upon the common principles of our nature, rendered inevitable, tb 
 prisoner strikes the deceased with his swordcane. The daggf 
 immediately becomes separated from the sheath, and is retained b 
 the prisoner. At the sight of the deadly weapon, the decease 
 begins to retire. With this deadly weapon in his right hand, tb 
 prisoner pursues his unarmed and retreating victim, striking hi ' 
 with the dagger until he fell, and, as man}' of the witnesses testifi 
 after he had fallen. Was the use of such a weapon, uuder sue 
 circumstances, lawful ? If its use was unlawful, then the prisone 
 according to the principle heretofore stated, and the cases read 1 
 you as elucidating that principle, used it at his peril, and must t 
 responsible for the consequences.* Ia what code of laws is tb 
 justification of such an use of such a weapon to be found ? Is { 
 contained in the law of self-defence ? It is a kind of impiety to a 
 tempt to apply that great and hallowed principle of nature’s juri 
 prudence to such a case. Is it to be found in the laws of chivalry 
 Do the rules of the school of honour indeed sanction the positio i 
 that a soldier prepared with a swordcane, may by gestures ar 
 words insulting beyond forbearance, tempt an unarmed citizen l j 
 strike him, and that he may then pursue the unequal combat wii 
 the drawn dagger? Is the justification to be found in the law of tl 
 land ? To you, gentlemen, as the sworn administrators of that lav 
 the question is solemnly propounded; and your answer, your m> 
 mentous answer, is presently to be registered on the records • 
 this court. Say that the conduct of the prisoner was lawful, pn 
 nounce that the venerable law of the land will henceforth sam 
 tion such transactions, and your verdict will form an era in tl 
 moral history of this community, of portentous and awful bearin 
 Yes, gentlemen, the prisoner’s acquittal might accomplish moi 
 mischief than his dajrger wrought; it would be planting a dagger 
 the heart of our criminal jurisprudence. Will you plant that daggf 
 there ? No, gentlemen, I am persuaded, that arduous and heart-tryii 
 as are your obligations, you will perform them faithfully. And, t 
 pursue the case so pathetically supposed by the counsel who la 
 addressed you, I trust, that even were the prisoner at the bar yoi 
 own son, you would triumphantly rise above the yearnings of n 
 ture, and that, like a jury of Roman fathers, you would do yoi 
 duty. 
 
 See pages 106,10". 
 
151 
 
 But upon what basis rests the supposition that the wound was in- 
 licted by accident ? How accidental ? He upon whom the duty of 
 xplaining devolves, has given us no satisfactory explanation. The 
 rysterious exchange of canes the very evening before the fatal 
 encounter ; the prisoner’s ramble in Broadway, armed with a 
 eadly weapon, at the hour when the deceased was known to be in 
 ae habit of proceeding through that street from his office to his 
 ither’s house ; the unprovoked outrage of the tongue, succeeded 
 y the use of the swordcane, are circumstances fraught with awful 
 idications of design. And when the swordcane becomes separated, 
 ffiy is the sheath thrown away, and the dagger deliberately re- 
 'lined ? The sheath, by itself, is a formidable cane, better calcu- 
 ited than the dagger for striking or any other ordinary purposes 
 f combat. But the dagger is best fitted for a deadly thrust! It is 
 stained ; it is used ; and the deceased falls. The fall was a pecu- 
 ar one, and filled the spectators with surprise. They saw no 
 low given adequate to produce such a fall. The dagger, could it 
 leak, would solve the mystery. But the prisoner was cool and 
 dm over the scene of death ; and therefore, say his counsel, he 
 mst be innocent. A bystander pronounced his victim “ a dead 
 ian.” These words were heard by the prisoner, and made such 
 1 impression on his mind, that he afterwards repeated them to his 
 impanion, Mr. Cambreleng, as an excuse for his flight. He well 
 aevv the truth of the words. He knew 1 the energies of his own 
 ght hand, and the paleness of death which had seated itself upon 
 >e face of his victim, assured him that the dagger had not missed 
 3 aim. But amidst the general perturbation he was cool and calm ! 
 o tear of sympathy softened his eye ; no pang of regret moved 
 s heart. lnnocencj r , gentlemen, never, in any age or clime, stood 
 us composed and indifferent over a dying man, whom it had by 
 isadventure slain. The coolness and calmness of the prisoner, 
 ere the coolness and calmness of stern, and ruthless, and inflexible 
 mgeance. He was unmoved, because no event had happened but. 
 ■ at which he desired and purposed ; he pressed the call of no me- 
 >cal aid, for he well knew that there was only one Physician who 
 
 < uld cure, and not even He without the performance of a miracle. 
 :it the prisoner returned from Nevv-Jersey without resisting the 
 ] lice officers who had been sent after him ! And is this evidence 
 
 < innocency ? What benefit wmuld have resulted from his resist- 
 fee ? It might have gathered around him an assemblage of people ; 
 
 I t let me assure the learned counsel, that the good people of New- 
 -,rsey would have assembled, not to aid the escape, but to secure 
 i safe custody, the shedder of human blood fleeing from justice. 
 
 Had the prisoner been indicted for murder, his trial might have 
 fen more perilous to him than “the imminent deadly breach.’' 
 
 II the grand jury have kindly mitigated the offence to the grade 
 t manslaughter ; and you, gentlemen, are urged with all the power 
 H pathos of impassioned eloquence to whiten it info innocent' 1 . 
 r -’ make a lodgment in your hearts, the gallant brother, and the 
 y ithfuj and lovely sister, and the venerable mother of tbe prisoner. 
 
152 
 
 have been arrayed before you. The syren voice of pity has bee 
 sounded in your ears in behalf of the prisoner’s youth. And vt 
 have been invoked as you value your own salvation, to temperju 
 tice with mercy. Mercy is indeed an heavenly attribute—it is tl 
 very attribute of the Godhead, to which we erring mortals will me 
 ardently cling in that day of retribution, when we must all appe 
 before the judgment seat, not as judges, or jurors, or counsel, b 
 as prisoners at the bar. Nor is this favourite of the skies a stra 
 ger to our system of juri-prudence. Our constitution has provid- 
 a place for it to dwell in, even the mercy-seat of the executiv 
 But jurors may not. must not tamper with it ; an oath enjoins the 
 to forbear. It is chiefly because the law knows jurors to ha 
 compassionate and erring hearts, that it for’ifies them by an oatl 
 compelling them to lay their hands upon the word of life, and to c; 
 upon God to help them, or not to help them, as they decide accor; 
 ing to the law and the evidence. Awful alternative, cleaving unll 
 or renouncing the help of (Jod! And yet, gentlemen, this oat j 
 with all its sanctions, rests upon yrnur souls. Keep your eye ste 
 fastly fixed upon it, as the polar star to direct you in all your d 
 liberations. That solemn oath requires you to do your duty. T 
 blood of Stoughton, from his new-made grave, demands you to { 
 your duty. And as one of the ministers of the law, 1 call up^ 
 you, in the name of the ever-living God, to do your duty. 
 
 Emmet. Before Mr. Wells goes on, l beg leave to refer to t 
 testimony of Mr. Cambreleng, that the facts may not be left in douH 
 He says, that in striking the blow, the dagger flew out of the sheath 
 and was partly exposed to view. 
 
 The. Mayor. Mr. Emmet, do you’not omit a part of that evidence 
 that it came out about four or five inches; and that he changed 1 
 hold, and took the dagger part in his right hand by the blade ? 
 
 Emmet read a passage from his own notes, not materially var 
 ing, but that he should ask when it came to his turn, upon wlj 
 ground it could be expected of the prisoner to abandon the point." 
 weapon to his assailant, keeping only the sheath in his own hands > 
 
 Mr. Wells then summed up on behalf of the Prosecution. 
 Gentlemen of the Jury : 
 
 In discharging the duty which it remains for me to perforr 
 which I owe to public justice—to the memory of a man who w 
 my friend—whom 1 knew and esteemed—whom 1 loved in life, ai 
 lamented in death ; 1 shall have much more need to struggle wi 
 my own feelings than to endeavour at exciting yours. 
 
 1 do not seek to gratify vindictive passions. 1 will not appeal' 
 your passions, nor to your prejudices if any you can have : 1 d 
 claim every attempt of that kind, nor would I triumph over guilt- 
 self, by any other ways than those of truth and justice. 
 
 The counsel for the prisoner have treated with some respect t: 
 memory of the deceased. Why did they not also respect the pare# 
 who Jiave lost for ever their beloved son ? Why drag them in 
 
153 
 
 otice ? Why charge them with attempts to irritate the public feel- 
 ig, and prepossess the judgment of a jury ? What has transpired to 
 warrant such insinuations, as cruel as unfounded? Why no. rather 
 leave the stricken deer to weep ?” Why rudely profane the sane- 
 iary of a father’s and a mother’s sorrow ? Why not permi them in 
 ecret to bewail their loss, to mourn for their child, to commune 
 'ith their God, who alone can solace their affliction ? 
 
 It will not be expected of me at this late hour, fatigued as we all 
 re, and 1 particularly so, to enter into the long details of all the 
 vsticnony. This is less necessary, since it has been put before yon 
 etter than I am capable of putting it. I shall retrace the bold out- 
 nes of the case, and nothing more. I shall present the facts in such, 
 onnfection as in my judgment will lead you to the necessity of pro* 
 ouncing a verdict of guilty, i[ your verdict is to be “ according to the 
 vidence.” And I beseech you, gentlemen, let no considerations 
 ffluence your minds, but those derived from truth and justice, and 
 om the evidence on which you have sworn with such solemnity 
 i find your verdict, I ask for that much at your hands, I ask for 
 othing more. 
 
 Look at the circumstances which led to this unhappy tragedy, 
 ee with what characters they are marked throughout—whether 
 ley do not clearly evince a settled and deliberate purpose of the 
 ind. Walking in Broadway from the City-Hotel to the Park and 
 ick again, at an hour when it was almost impossible but the de¬ 
 based should pass, since at that hour he daily passed that way—do 
 )u believe that this was purely accidental ? If it were so, how dif- 
 rent would have been the prisoner’s conduct. Mr. Stoughton was 
 :en at the distance of forty or fifty paces. Mr, Cambreleng names 
 in, saying, there is your man, or, there is your friend Stough- 
 n. What does he then ? If his intent had been merely to convey 
 his friend the opinions he had formed of the deceased, why not 
 en reply? Instead of that, his lips are closed. No word escapes 
 1 it can reach the ear of Mr. Stoughton—calmly and deliberately 
 aking up his mind, during an approach of thirty or forty paces, 
 r that insult which he proclaims as soon as he comes within 
 iaring distance. Then he raises his cane, and in words loud 
 aough to be heard by the deceased, he says, there goes a cow¬ 
 'd and a scoundrel.” And lest this should not be enough, the 
 ords are again repeated as he passes by his elbow. And why 
 lint at him with his cane, why put it in his face, if his design was 
 lerely to indicate the person to his friend, whom that friend had 
 ie moment before mentioned to him by name? No, gentlemen, there 
 ’ uld he no other motive than to provoke a quarrel. There is no 
 fier design imputable to words and gestures of this kind ! He must 
 live known that Stoughton, bold, manly, and high-spirited as he 
 vis, could not but resent an insult so gross, proclaimed in open day, 
 ; d in the public streets. But if his opinion was such, if he did think so 
 v ely of him as that he would submit, then there might have been 
 vieed another motive, but one so mean and dastardly, as I would 
 
 20 
 
154 
 
 not Impute to the prisoner : because of all species of cowardice,, 
 would be the most odious and contemptible. 
 
 This language, this pointing then, was clearly with the view < 
 provoking his resentment and bringing on the affray. And t’noug 
 at that moment he might have no definite intention of taking Mi 
 Stoughton’s life, yet when such provocation was given, it was to b 
 followed by its natural and necessary consequences—the quam 
 that was looked for. I speak from my own knowledge, what a 
 who knew Mr. Stoughton must have known, that he would rathe 
 have stepped into his grave than not resent an insult which th 
 tamest and the meanest of mankind could not endure. And yet be 
 cause he did not submit to this treatment, he is called the aggressi 
 and provoker of that quarrel in which his life was taken so ut 
 worthily, which ended in a tragedy that has caused tears that w; 
 flow while life shall last. 
 
 Yes! he provoked an unarmed man, holding in his own hand 
 stick, but what is worse, a stick in which a dagger was concealed 
 a stick which but the night before he had been told it was unsa 
 to use even to walk with. You all remember, gentlemen, that M 
 jor Smith, when pressed to the exchange, cautioned him that tl 
 dagger was loose and apt to slip, and that the string that fastened 
 was old and short, and to be careful in the use of it. That vvitne| 
 told you that when he had his foot upon a chair, tapping with th, 
 cane upon his boot, the blade exhibited itself to view. He mu| 
 have known that when he attacked his adversary with it the shea 
 would fly, and the first blow showed that Major Smith had not ca ( 
 tioned him without good reason. 
 
 There , was a moment that might have appealed to his manhood -1 
 to his honour—that might have warned his conscience, and adm 
 nished him anew that he held that instrument which it was ungen 
 rous and inhuman to make use of, and which he should have i 
 stantly cast from him. Not so ! he seizes the blade, anil the on 
 notice he takes of it, the only idea it conveys to him, is, that it 
 better for his purpose than the cane, which he might have retain' 
 with equal ease, had his intentions been less merciless. And ti 
 moment after the catastrophe in which this combat ended, whii 
 lasted but some moments, he stands w ith this dagger in his hand, and 
 that same instant we find his adversary closing i is eyes in everl.i: 
 ing darkness. Is not the conclusion irresistible, that Mr. Slough; 
 came to his death by this weapon, thus in the prisoner’s hand, a; 
 used by him ? 
 
 Here the prosecution might have rested. Here was a case 
 unequivocal homicide made out. And it w'ould then have been I 
 ihe prisoner to have shown his excuse, and explained the part 
 took or did not take in this affray. It was for him to show that l 
 deceased was slain from some excusable or justifiable cause. Ji 
 tifiable they' do not pretend it was : the boldness, the ingenui 
 of his counsel has not ventured to assume that ground : hut th 1 
 have said it was excusable by misadventure. Why was not tlj 
 
155 
 
 ccident or misadventure shown ? Who was to account to the jury 
 nd to the law for the stab and for the death ? Can you believe the 
 iw so inefficient ? True, it excuses accident, for it is merciful, and 
 unisnes no guilt but of intention. But can it so far ally itself with 
 centiousness, so far encourage audacity and embolden crime, as 
 fiat a man may sally forth in open day, a deadly instrument about 
 is'person, vengeance in his heart, and insult on his tongue, seek- 
 ig a conflict, ending it in death, and then satisfy an injured com- 
 lunity and violated law by saying, 1 did not intend what I did, I 
 id not know what I was doing, I am innocent, 1 am persecuted, 1 
 annot say how this thing happened, 1 only know it was by acci- 
 ent; and since it is doubtful how it happened, a jury must ac- 
 uit me ? 
 
 Why carry, why use this deadly weapon ? Why was the deceased 
 /aylaid on his accustomed path, provoked with the tongue, and 
 tabbed to the heart with that very weapon which the prisoner 
 sed, and which we here produce? Was all this misadventure ? 
 tffiy not rather throw it away, since he stood not in any need of it 
 ir his defence ? for no one will pretend that in strength, still less 
 i skill infighting, the deceased was his superior. Why not, if he 
 as so high spirited, throw away his dagger and attack without arms 
 man that was unarmed ? 
 
 Let me, gentlemen, propose a parallel case by way of illustra- 
 on. Suppose a man to walk the streets carrying a loaded gun, and 
 ) provoke a quarrel ; the gun is discharged, the adversary falls ; 
 !1 this is proved by many witnesses, he stands by the party slain, 
 le gun still in his hand, but nobody has seen him pull the trigger— 
 tall such a one say in a court of justice to a jury, the law is with 
 ic ; I ask no mercy of you, I call for justice : if no man proves 
 e saw me pull the trigger of that gun, the case is not made out: 
 aless you prove that I held the gun, presented the muzzle to the 
 ead of my antagonist, and some one saw my finger act upon the 
 igger, I claim my right to go acquitted of the charge, and to go 
 rth again to-morrow, armed for destruction, to deal death at my 
 ensure ; and I defy the vain efforts of man to bring me to atone- 
 ent ? 
 
 Gentlemen, this is not the misadventure that the law contem- 
 ates. That must be an accident in the pure and ordinary accep- 
 tion of the word, growing out of a lawful act or lawful pur- 
 it, uncoupled with any intent of mischief, and where all neces- 
 ry caution has been used. Was it then a lawful act to pro¬ 
 die an affray, commence it, continue it, and end it with a deadly 
 eapon ; and when you find the deceased slain with this weapon in 
 is affray, are you to be told it was a lawful act, without intent of 
 idily harm ? For what other purpose can you suppose than to do 
 ;dily harm of some kind to his adversary ? Where was the due cau- 
 m that the law requires ? The first and best precaution would have 
 ten, to have left his dagger at home : and the next, when he saw 
 ) unsheathed, was to throw it from him, and not continue to use it 
 : rough the whole of the conflict, as it is proved he did. 
 
156 
 
 And what is the amount of this pretended accident? That th' 
 prisoner held this dagger and the deceased rushed on it; that h. 
 made no use of it but for self-defence! Where is the particle o 
 evidence that he otdy maintained his ground and stood on self-de 
 fence ? Not only is there none, but it is clearly proved that Mi 
 Stoughton was the retreating, the prisoner the pursuing party 
 that the deceased gave way, the prisoner pressing upon him. An l 
 if in thus pressing him, the dagger ran into his body, 1 ask you i 
 the name of common sense, was that an accident? 
 
 But it i- said he fell upon this dagger, or peradventure he fe 
 upon this dagger. And you are to screen him from the just punish 
 meat due to his offence, because peradventure it fell from his hanc 
 and peradventure the deceased fell upon its point? 1 think this w; 
 matter for the prisoner to show, and where is the witness who pr< 
 tends to have seen this dagger on the ground when Mr. Stoughto 
 fell, or at any other time in such a way as that it could penetrate hi 
 body ? The intrinsic evidence shows it neither did nor could occu 
 that way. 
 
 I ask you, gentlemen, if you have doubts upon that subject, t 
 take this instrument: take it in your hands, and try whether you ca 
 put it in any situation where it could pierce the body of a man fal 
 ing directly backwards. There is not only no evidence to support { 
 presumption so extravagant, but controlling evidence of the coi 
 trary : evidence so strong and cogent, that argument and dispute 
 tion could but weaken it: and which cannot be resisted unless vo 
 are pleased to let your feelings of mercy overshadow and obscur" 
 your judgments, and breakdown every principle of law, which,; 
 wise men and goo 1 citizens, you should ever venerate and upholt 
 If, unfortunately, jurors should be so far led astray as to turn ash! 
 from ihe evidence and from the obligation of their oaths, to make 
 false display of mercy, I can only say, that what was Stoughton 
 fate, may soon be yours or mine. 
 
 The only evidence to give any colour of support to this strang 
 supposition was, that unaccountable opinion drawn from Doctc 
 Mott. You must have seen the glow of exultation which spread i 
 self over the prisoner’s countenance, when that w itness said th; 
 no man of modern days could have pow-er to inflict that wound ; a 
 opinion put down by the experience of every man who has but con 
 mon sense, and knowledge of the use of this or any other instn 
 meat, or even of his own limbs. And all the other physicians, ( 
 the most respectable in our city, unite in saying that the arm of a 
 ordinary man, especially when impelled with rage, would with thsi 
 instrument penetrate the boldest heart that ever was enclosed i 
 human bosom. 
 
 The evidence, gentlemen, has been spread out before you i 
 such deta l, and commented upon so much at large, that you cannc 
 fail at lea;t to have a good general recollection of it. 1 shall finis 
 with a mo-e condensed review of it: which will be, dphink ,enoug 
 to show, t.iat if any proposition was ever maintained in a court 
 justice by human testimony, so is this : that that wound could n(t 
 
157 
 
 e inflicted upon the body of Mr. Stoughton by means of any acci- 
 ent whatever. 
 
 It is proved that the prisoner commenced this affray with a 
 mdly weapon in his hand ; and had no other witnesses been call- 
 1 than his friend Mr. Cambreieng, to whose regard for truth it is 
 y duty to pay just tribute, his testimony would have been conclu- 
 ve. He shows that this dagger was used by him—that after the 
 fray began, there was some struggle to get possession of it—that 
 e let go the sheath and changed his hold, and took the steel into his 
 o-ht hand—that till that moment Mr. Stoughton had the best of the 
 fair. Now mark the fatal moment that changed the fortune of the 
 >mbat. No sooner was the dagger fairly in the prisoner’s right 
 and, than it finds its way into the heart of the deceased. A blow of 
 10 more and he is levelled to the earth to rise but for a moment, 
 id sink again to everlasting rest. 
 
 Mr. Cambreieng saw his right arm, but he does not tell you that 
 * saw his right hand. Where then was the difficulty, covered as 
 ; was with capes down to his elbows, to use the dagger and Mr. 
 umbreleng not see it ? Mr. Cambreieng has distinctly informed 
 iu, that when standing on the curbstone, he could see the right 
 ;m of the prisoner, but that it would be too much to say he saw 
 is hand. Nor does he pretend that his eye pursued him through 
 ‘•ery varying movement and alteration of position, that must have 
 ken place throughout the stcnggle. That, then,was the moment of 
 r. Stoughton’s fate, when Goodwin seized the dagger in his hand; 
 ien it was he received his death wound ! The blows that follovv- 
 <1 were but auxiliary to the blow that reached his heart: for. it is 
 ;11 proved that they were not of themselves sufficient to bring him 
 i the earth so suddenly. 
 
 (Emmet begged leave to interrupt the counsel a moment, con¬ 
 niving that Mr. Cambreleng’s testimony did not altogether war- 
 int this statement or these comments, and read from his notes 
 ;d appealed to the court; but the mayor observed that he had 
 (refully read over Mr. Cambreleng’s testimony as he had minuted 
 idown, and he had agreed to its correctness, and it did not vary 
 !)m Mr. Wells’s statement. Mr. Emmet referred, he said, to what 
 Jr. Cambreieng had afterwards spontaneously said, which was not 
 ] rhaps noted.) Mr. Wells proceeded. 
 
 I appeal, gentlemen of the jury, to your own recollection. I 
 fll recollect, and I doubt not it made the same impression upon 
 ]u, the candour of that witness. His desire to serve his friend 
 vs strong, but it was not strong enough to conquer his integrity ; 
 < l! ;he answers to the questions asked him, were not what were 
 fped for by the gentlemen who interrogated him. But had it 
 fjen otherwise, supposing he could all the time have seen the 
 f soner’s right hand, if, as they say, the prisoner threw away the 
 dgger, where were his eyes and ears that neither saw nor heard it? 
 Nor does Mr. Cambreieng stand alone in this. He is confirmed 
 t four or five others, all speaking to the same effect, that he held 
 t?i dagger and continued the conflict with it until Mr. Stoughton 
 
138 
 
 fell. Then you must, before you can acquit the prisoner, be will 
 ling to believe that just as the deceased was falling the dagger slip * 
 ped out of the prisoner’s hand in such a manner as to combine mi 
 raculou.-ly with the fall, and cause the death. But if you are ob 
 servant of your duty and attentive to the evidence, as I know yoi i 
 are, you will find that from indulging in such conjecture you ar 
 absolutely and utterly precluded. 
 
 Witnesses, whom you cannot disbelieve, have sworn to you tha 
 when the deceased lay on the ground, this dagger remained still i 
 the prisoner’s hand : that even when the most angry passion migb 
 have been appeased ; the most malignant vengeance glutted ; a fe» 
 moments of life remaining ; a few short moments yet to pass an 
 he to be no more, you find that prisoner using it inhumanly upo 
 • he head and face of his prostrate adversary ! And now' they ar 
 driven to their last entrenchment. They say if he did not let it g< 
 but still held it fast, Mr. Stoughton must have fallen upon it whe 
 it was in his hand. This i 3 what you must believe before you C 3 
 acquit. You are brought to this, and it is the only ground on wliic 
 it is now possible for you to rest a verdict of acquittal ; for since h 
 held the dagger at the moment of the prisoner’s fall and at the m< 
 xnent he rose, it is trifling too far with justice to say it ever was ot 
 of his grasp. And I refer you confidently to the witnesses wh 
 have sworn that he not only held it at that moment when he fel 
 but that he had it and used it too when he was down, and had it als 
 at the moment when, with the aid of some kind stranger, he ros ■ 
 again, and finally when he swooned away never to look on his d> , 
 stroyer more, when that tongue that could have silenced all coi 
 jectures was silenced, and forever. 
 
 And will you push this supposition so far, as that he held th 
 weapon whilst it killed a man, and was unconscious of what he w 
 doing with it ? for if that be not what the counsel mean, it is sonr 
 tiling bordering upon it, though the ground was rather too bold 1 
 be openly maintained. In a word, gentlemen of the jury, can yc 
 doubt that the-deceased came to his death by that dagger, wield( 
 by the hand and arm of the prisoner at the bar ? That his fixi 
 determination from the first was to kill, I will not take upon me > 
 pronounce ; but that he did provoke the conflict, and use tl 
 deadly weapon, and that by means of it Mr. Stoughton came b ) 1 h 
 death, are facts about which there is nor can be no dispute. B r 
 if you give ear to the strains of fervent and impassioned eloquent 
 in which the prisoner’s counsel have declaimed, you may as wt}j 
 believe there was no dagger, that it is but delusion, prejudice, ai 
 calumny ; that Stoughton never was stabbed, but is still living, 
 say it ns the true conviction of my own senses, that it would be i j 
 less violent to say there was no dagger used at all, than to say ■ 
 was not in Mr. Goodwin’s hands when it caused the death of tl 
 deceased. Three witnesses at the least have sworn that they s? 
 it : and in the face of all this testimony, with every circumstan 1 
 to give it confirmation, you are asked to substitute for truth •* 
 palpable, conjectures incredible, if not impossible. 
 
159 
 
 If he had fallen upon it and been transfixed by it, it would have 
 :mained in his body at least as long as he lay upon his back ; it 
 >uld not have fallen out until he was raised Irom the ground ; 
 here was it then ? How did it comeback into the prisoner’s hands 
 ever it was out ot them ? 
 
 Mr. Weed alone, and he is the least distinct of all the witnesses, 
 ys he saw the dagger on the ground at some little distance from 
 e deceased, when he was down. If this were so, it is equally 
 tal to the hypothesis that the deceased tell on it, since the dullest, 
 .prehension will perceive that it must have continued in his body 
 : least till he rose up. 
 
 But no witness, you are told, has given evidence of the blow' that 
 lied the deceased : and you must acquit the prisoner, for he is 
 <iar°ed with killing by a blorv, and you have not proved that blow. 
 .re we to bind fact to fact by links of steel ? Will nothing serve 
 it adamantine chains ? Are you to make that ungrateful return for 
 ; a t precious gift of reason which your God has given you, that 
 mi will not use that reason, that you will not compare, that you 
 ‘,11 not combine, that you will adopt conjectures, however extra- 
 igant, rather than draw conclusions the most obvious and inevi- 
 tde? If, gentlemen, you sanction this doctrine, that nothing shall 
 ! proof of manslaughter but direct evidence of the immediate 
 bw, you blot a great part of your criminal jurisprudence out of 
 jurcode. 
 
 And for what are you thus called upon so earnestly to surrender 
 Mir reason and your judgment, and to tamper with your conscience 
 rd your oaths? Because, forsooth, the punishment of killing a 
 flow-creature, and a fellow-citizen, is too great tor the oflenee— 
 tit it is disproportioned, because it is humiliating and degrading: 
 ad therefore a jury is to dispense with the law and follow a new 
 ce of their own making. It is then in vain that we have laws ; in 
 v n that we have juries and judges sworn to administer the law, if 
 t: mere caprice of a jury is to countervail the solemnity ot the 
 hv, leave guilt to triumph with impunity in a commonwealth em- 
 patically called the country—the government of law—whose pe- 
 c iar boast and happiest privilege is the universal security and 
 pitection of the law. The law is that which guards your lives, 
 al watches over your liberty, your fortune, and your honour.. 
 Ad if you have any interest more precious than another, the law 
 a uresyou the free enjoyment of it. And will yon trample on it, 
 oijwill you reverence and maintain it ? If the punishment of this 
 o mce be too severe, the legislature of the state must alter that. 
 
 I there be hardship in the particular case, the governor may miti- 
 g 2 the punishment, or pardon altogether. But every rational mo- 
 ti:, every moral tie, and every binding sanction of religion, imposes 
 oyou the duty to carry the law into its full and due effect. 
 
 • shall now, gentlemen, conclude. I proposed to myself no 
 naVe than to present to you a brief and simple view of the true 
 hints of this cause—which 1 think is enough to ensure the con - 
 1 Vi ion of the prisoner beyond the possibility of escape. And I 
 
160 
 
 sincerely hope I have brought you with me to the same conclusn 
 It is not from any vindictive teeling towards that man that I say tl 
 I can conceive his situation. I can imagine the sorrow and c< 
 trition of his heart, if he has a heart capable of any feelings 
 contrition. He has entered deeply into the happiness of tin 
 who, but for his intemperate conduct, to call it by no bars! 
 name, had still been happy ; but whose affliction is now beyc 
 all earth!}' cure. You owe it to your country to punish 
 offender, if he be guilty. You owe it to the peace and hone 
 of your city, if he has been a violator of your law and a c 
 turber of }*aur peace. You owe it to your families, to vi 
 friends, and to yourselves.- The midnight assassin may be avoii 
 by the precaution of staying within doors, but nothing but i 
 certainty of punishment and the efficacy of the law can prott 
 you from the stiletto brandished in open day. And distress 
 as the case may be to the guilty individual, or to those connec 
 with him, it would be more distressing to the community a nr 
 the peaceful citizens, that an offence so enormous should go • 
 terly unpunished. Still, gentlemen, if you can find any groil 
 of reason, which I cannot, to doubt of the guilt of the pi iso | 
 at your bar, why then acquit him. But let it not be, 1 besci 
 you, from a false sentiment of mercy ill applied; nor from 
 rash encroachment on the office of other constituted authorit , 
 equally acknowledged by our law and constitution ; nor fn 
 an unbecoming disposition to make the law rather than to fol i 
 and observe it. If, l repeat it, gentlemen of the jury, you I 
 in the evidence enough to satisfy your reason and convince yar 
 judgment that the prisoner is guilty, 1 do entreat you by all the ll< 
 lowed ties that 1 have mentioned, let no consideration but that of dj 
 sway you ; let nothing induce you to defeat the ends of justice ! 
 prevent the uplifted arm of the law from failing on the guilty mil 
 
 (At the close of Mr. Wells’s speech there was some movetrl 
 of applause and clapping of hands, as there had been before at < 
 conclusion of Mr. Emmet’s, but it was instantly repressed byH 
 authority of the court. 'Before the mayor proceeded to deli:i 
 his charge, Mr. James Glass stated that there was some, differed 
 amongst the jury as to Mr. Clark’s testimony, w hether it was, d 
 the prisoner had knocked the deceased down with his hand merp 
 or whether he had any thing then in his hand. The mayor nc 
 that part of the testimony over, and then proceeded to chargeM 
 jury to the following effect :) 
 
 CHARGE OF HIS HONOUR THE MAYOR. 
 
 The Mayor said that he should at all times rise to charge a_rj 
 in a cause of this nature with the greatest concern. But in iii 
 case, after a triad which had lasted five days, and after having <t 
 been on the bench nearly fifteen hours, he could not but fee! g*i 
 apprehensions as to his powers to discharge the arduous task isl 
 
161 
 
 gained to him. That a consideration of the fatigues of the jury, 
 iweil as his own, would induce him to observe all the brevity con¬ 
 tent with his duty. He would not trust himselt for a moment to 
 [Vert to the particular circumstances on the one side or the other, 
 iich had rendered this case so interesting to the jury, the court, 
 t! to the multitude, which had da)' and night crowded the hall. 
 
 The prisoner at the bar was indicted for manslaughter. The 
 Iiaition of this crime was unlawfully killing a human being with- 
 > malice either expressed or implied, 
 t must be observed, that this definition excludes the necessity of 
 1 killing being wilful. Nor does the word wilful appear in the 
 I iuition of manslaughter, in any book or authority that has been 
 vd, except in the charge of Chief Justice Parker of Massachusetts, 
 r lie case of Selfridge, who was tried before him, on a charge of 
 ring feloniously killed young Austin. But it is not doing justice 
 .the acknowledged ability and learning of Chief Justice Parker, 
 c onsider him as giving in this instance an abstract definition of the 
 ;ine of manslaughter. In that case there was no question as to 
 killing having been wilful; it was acknowledged to have been 
 ic The accused, when the deceased made an attack upon him; 
 dt Austin with a pistol, wilfully discharged, with an intent to kill, 
 jnt least to wound : and the defence was, that the accused was 
 ??usable in doing so, because it was necessary for his self-defence. 
 Wether the killing must be wilful or not to constitute the crime ol 
 mslaughter, was not in that case argued by the counsel or pre- 
 ! eled to the consideration of the court. We may therefore con- 
 i« r the judge as giving a definition of the crime as applicable to 
 hi particular circumstances then in controversy, and not an ab- 
 it ct definition that should be applicable to all cases. Or in other 
 .v ds, we rnay suppose the Chief Justice as giving the jury all the 
 n rmation it was necessary for them to have in such case, as to the 
 laire of the .crime. He therefore tells them that unlawfully and 
 vfully to kill is manslaughter: but we never can, in opposition to 
 :vry other authority, and to every author who has given us an ab- 
 tr:t definition of manslaughter, suppose that the judge meant 
 o-e understood that a party could not in any case be convicted 
 This crime, unless he had an intention to kill. It is true, the 
 vi of the party, in most instances, must necessarily co-operate 
 n he perpetration of the crime. That is, the act which is 
 hi mediate cause of the death, must generally be a wilful act ; 
 >u if that act was unlawful, the party may be guilty of nmn- 
 laghter, though death or even bodily harm was not intended. 
 Si to say as has been said by the prisoner’s counsel, that the lm- 
 nciate net which occasions the death, must in all cases be volun- 
 |i to constitute the crime of manslaughter, I am sure is a mistake, 
 ’o suppose the pistol of a burglar, while he is robbing a house, 
 hi Id be accidentally and involuntarily discharged, and thereby one 
 « e. inhabitants of the house be killed, can it be doubted but that 
 |i would be a felonious homicide ? 
 
 21 
 
 ■1 / %■ 
 
i 62 
 
 The authority of Chief Justice Parker has been so much rei f 
 upon and so earnestly pressed on your consideration by the coun| 
 tor the prisoner, that I have thought proper thus far to notice it• 
 this early stage of my address to you, though it is not my intent (j 
 just now to direct your attention to the law of homicide, necessaiJj 
 involved in the verdict you are to pronounce. 1 shall, in theseqij 
 again refer to the case of Selfridge. 1 think you will better undid 
 stand my observations on the law of this case when you shall h i 
 heard those I mean to offer to you on the evidence. 
 
 To support this indictment, the death of the person alleged! 
 have been killed, must be proved : and it must be proved that* 
 was killed by the instrumentality of the prisoner at the bar, p 
 means at least of the nature of those charged in the indictment. 
 
 As to the first point, it is not necessary that 1 should detain yu 
 moment. It is too true that the unfortunate Stoughton is no mor< 
 
 The next question is, when and how did he come by his deatl 
 
 I shall not attempt to recapitulate particularly the testimony oft 
 many witnesses who have been examined, or to assist you in J 
 deavouring to reconcile the many apparent contradictions of « 
 witnesses. They seem calculated to shake our faith in all human ► 
 limony. I am sensible that 1 have not now strength for a task wlh 
 would require so much time and labour. Were 1 to endeavouio 
 perform it, I fear my omissions or mistakes might do injustice to t 
 one side or the other. 
 
 I shall, therefore, only ask your attention to certain promiril 
 facts, which I think may be considered as incontestibly pro'll 
 They are testified by most of the w itnesses, and are not posith.ji 
 or affirmatively contradicted by any. 
 
 It is proved by the testimony of Major Smith, that the prise» 
 possessed himself of the fatal weapon the evening before his meal 
 rencounter with the deceased. That at the earnest solicitation 
 the prisoner, the witness gave it to him in exchange for a ue 
 that the prisoner before carried, which had no sword in it. II 
 testimony was introduced on the part of the prosecution, unq $• 
 tionably to show that the prisoner had premeditated an affray ■ 
 the deceased, and had armed himself w ith this instrument wi I 
 view to it. But the testimony of Major Smith is in opposition 
 such an inference. He says the prisoner was" going to Baltin* 
 the next day, or soon thereafter : and that he expressed a desiil 
 have it from the witness as a keepsake. In the absence of alia 
 timony to the contrary, we are bound to believe he had no o« 
 motive. And the affray and the obtaining of the weapon ann» 
 otherwise connected than in point of time. I only advert to ■ 
 corroborative evidence of what has been show n by the lestinnjf 
 of several other w itnesses, that is to say, Carnbreleng. Weed Ofl 
 M‘Gowan, that the prisoner had the weapon in his hands imiidij 
 ately before, and at the commencement of the affray, the lVi.il 
 the prisoner after he saw' that the dagger had w ith the first I % 
 been forced partly out of the cane, either drew off the sheaf W 
 suffered it to fall off, and took the blade in his hand, has beeudf 
 
163 
 
 ii'ted to by the counsel on both sides. It will evidently admit of 
 ■o interpretations : it may either be considered as indicating a 
 ution in the prisoner to guard against the mischief likely to en- 
 : e, if he had continued to use it as he then held it; or it may be 
 :cen as indicating a design in the prisoner the more effectually to 
 ail himself of this mortal weapon. I shall leave the jury to draw 
 :eir own conclusions from what they may recollect of the testi- 
 ;iny in this point. It must be remembered, that Mr. Weed testifies 
 iry positively that the sheath flew off by the force of the first 
 bw. 
 
 It is also proved by the testimony of those three last named wit- 
 rsses, and also by the testimony of most of the other witnesses in 
 l> cause, and certainly by the testimony of Weir, Haycock, Ball, 
 al Phelps, that tiie prisoner used the cane either sheathed or un¬ 
 scathed, during the affray and up to the moment when the deceased 
 fil the first time. 
 
 And lastly, it is proved by several of the witnesses, that after the 
 d;eased fell the first time and had risen, or been raised by the 
 aistance of the bystanders, the prisoner had the dagger unsheathed 
 n his hand. After the deceased had tainted, Mr. Leonard Baker 
 s;y the prisoner looking at the dagger, he thought, with much sur- 
 pse, and thinks he saw him throw it away, or give it away. Mr. 
 V'irsaw him have it in his hand, and heard him say, “1 did not 
 rx an to draw this.” Mr. Ball saw the prisoner swinging the sword- 
 ci e between his thumb and finger after the deceased had fallen. 
 A. Clark saw the weapon in the hand of the prisoner, while he 
 vvs standing between him and the deceased, immediately after he 
 a separated them and the deceased had risen. He did not see 
 tl sword or cane in the hand of the prisoner at the commence- 
 mat of the affray or during its continuance. Indeed, according to 
 in testimony, we could hardly believe that the prisoner had this 
 svjfrd in his possession at the onset, because Mr, Clark says he gave 
 tb blow which knocked the deceased down with his right fist. We 
 alknow the high respectability of Mr. Clark, and how impossible 
 it that he can intend to represent any thing otherwise than as he 
 breves to be true. He supposes that he saw all that passed from 
 h very commencement to the end of this unhappy rencounter. 
 
 \ it is manifest that he did not, or Mr. Weed, Mr. Cambreleng, 
 M M‘Gowan, and most of the other witnesses, must be mistaken, 
 injed it must be very unfavourable to the prisoner to suppose that 
 M Clark cannot be mistaken as to the commencement of the 
 athy, for if he were not, then the prisoner commenced the affray 
 byi violent and totally unjustifiable assault and battery on the de¬ 
 eded. 
 
 here is one part of the transaction to which there is a contra- 
 ci«/ in the testimony of the witnesses, and that is as to the prison¬ 
 er having beat the deceased about the head with the but end of 
 thfdagger after the deceased fell the first time. This is a matter 
 svlbh, if you should think it important to your final decision, 1 
 ih; leave entirely to your consideration and determination. 
 
164 
 
 From tlte testimony on these points, anil from that to whic! 
 shall presently more particularly direct your attention, you w 
 have to decide, if you should think it necessary for you to do < 
 whether the deceased received his mortal wound from a bit 
 with the dagger voluntarily given by the band of the prisoi 
 during the allray, or whether the deceased was accidentally press 
 upon the dagger while the parties were up and the contest ci 
 tinned ; or whether in consequence of the prisoner’s having drt 
 ped or thrown away the dagger before the deceased was knocli 
 down, the deceased, by a blow or violence from the prisoner, i 
 upon the dagger and so received the mortal wound. 
 
 It is my painful duty to say, that if you come to a conclusion t 
 the death of the deceased was occasioned by either of these me; 
 or in either of these ways, you may tind the prisoner guilty of • 
 crime of which he is accused. ' Whether the death occurred ini 
 or other of the w’ays I have mentioned, is, as to the question w! 
 ther the killing be manslaughter or not, in my judgment, tot; 
 immaterial. 
 
 Whether the prisoner intentionally planted the dagger in 
 heart of his adversary, or whether the deceased came by his del 
 by being cast on the dagger by the prisoner, w ithout any design i 
 his part to inflict a wound, unquestionably makes a vast cl i tie re;; 
 as to the moral guilt of the prisoner; and so it does as to his lei 
 guilt. For if lie intentionally stabbed the deceased under the <■ 
 cumslances of this case, then, gentlemen, he is undoubtedly guf 
 of murder. It is only the supposed want of this evil and felonis 
 intention that could, under the circumstances presented by a 
 testimony we have heard, have mitigated the accusation to that f 
 manslaughter. 
 
 1 feel myself bound to say, that the opinion I give that the j- 
 soner may be guilty of manslaughter, although the deceased rj 
 have received the mortal wound in one or other of the ways 1 be 
 mentioned, is an opinion in which, after all the research and coi- 
 deration 1 am capable of, 1 give with confidence. I do not n d 
 with an assurance that 1 cannot be mistaken, but I use this leno 
 signify to you that now there are no doubts in my mind on the m- 
 ject. If 1 were to tell you that 1 had doubts when 1 harbonl 
 none, it would be as criminal as if I were to advise you that ft 
 law was one way when I believed it to be another. 
 
 I shall yet forbear to present to your consideration the view lh 
 tend to offer you of the law applicable to this case. I shall f't 
 merely premise,that the question whether the prisoner has bft 
 guilty of manslaughter or not, may depend upon your deriuj 
 whether, when the mortal wound was received, the prisoner at 
 acting lawfully or unlawfully. This will necessarily lead to ae- 
 view and consideration of the circumstances of the case in s ;e 
 detail and with some particularity. 
 
 But here again I shall avoid adverting to any facts as to wl:b 
 I think it can be justly said there is any positive contradiction I 
 mean to refer only to the testimony of Mr. Cnmbreleng, and Ijh 
 
 
165 
 
 o such material facts of his testimony as are corroborated by other 
 vitnesses. It is true that he was called on the part of the prosecu- 
 ion, but it is obvious that he was the friend or intimate of the 
 wisoner. It is also obvious that the affray was not a matter for 
 vhieh he was so entirely unprepared as the other witnesses evi- 
 ently were. The expression he used, and those he heard from 
 he prisoner before any blows were given, must have led him to ex- 
 >ect an affray. We must therefore believe that he observed what 
 assed with more attention and calmness than any other witness, 
 tnd I must add, gentlemen, that the candid, cautious, and consist- 
 ut manner in which Mr. Cambreleng has delivered his testimony, 
 vill, 1 presume, impress you, as it has me, with a perfect confidence 
 hat he means to represent what he believes to be the truth. 
 
 He states that between two and three o’clock of the afternoon of 
 1st of December last, he and the prisoner left the City-Hotel 
 i Broadway, where the prisoner lodged, to take a walk. That 
 ley walked up as far as Park Place, and then went back. That 
 men they had arrived near the upper or northwardly side ofCourt- 
 mdt-street, the witness perceived Mr. Stoughton below Court- 
 mdt-street, coming up on the same westwardly side of Broadway, 
 n which the witness and the prisoner were walking down. That 
 re witness said to the prisoner, there is your friend Stoughton, or 
 ou will meet your friend Stoughton, (meaning his enemy, or at 
 ;ast his adversary no doubt) or words to that effect. That they 
 'ere then forty or sixty yards from the deceased. The witness 
 as walking on the inside next thefiouses, and the prisoner by him 
 n the outside. That the prisoner took no notice of what the 
 itness said to him ; but when the deceased and the prisoner had 
 rrived within about six yards of each other, the prisoner lifted his 
 me, not in a threatening manner as if he was going to strike, but 
 mrnfully pointing the small end at the deceased, and said, “ there 
 res a coward and a scoundrel,” or words to that effect. That the 
 jeceased took no notice of this, but continued his course till he 
 ime on a line, or nearly so, with the prisoner and the witness, 
 hen the prisoner again raised his cane in the same w'ay, and re¬ 
 lented the same words, “ there goes a cowmrd and a scoundrel.” 
 he deceased passed on about two paces, and then turned and 
 une towards the prisoner. The prisoner turned and faced him. 
 he witness fearing an affray, to prevent it, took the prisoner by 
 ie sleeve, and desired him to go with him, or to go off, or to that 
 feet. The prisoner turned to do so ; the deceased followed 
 em, and when they had moved a few feet, the deceased came up 
 the prisoner, accosted him, and asked him if he would repeat his 
 ords ; to which the prisoner answered, “ I will :” upon this 
 e deceased made a blow at the face of the prisoner which took 
 feet on his shoulder. The parties had at this time reached the 
 wer or southerly side of Courtlandt-street, and were on the side- 
 alk, near the curbstone, at the corner of Weed’s store, which 
 rms the southwest corner of Courtlandt-street and Broadway', 
 pon receiving the blow from the deceased, the prisoner return- 
 
 | . 
 
1(56 
 
 ed it by a blow with the but end of the swordcane at the head oi 
 the deceased. The prisoner had the cane in his right hand, an* 
 held it by that part which made the scabbard of the sword. As th< 
 stroke was made with the swordcane, the sword flew out so at 
 to show some part, three or four inches of the blade. The exposure 
 of the blade seemed to attract the attention of both the combatants 
 The prisoner then took the hilt or handle of the swordcane in hie 
 left hand, and having let go the scabbard which he had held in hi< 
 right hand, the scabbard came off; the witness supposed it droppec 
 off vvheu the prisoner let go his hold of it. The prisoner then shiftei 
 the sword from his left to his right hand, taking it in his right hant 
 by the blade near the hilt or handle, so that the point and a grea 
 part of the blade was below his hand ; while the prisoner was doinj 
 this, the witness thinks the deceased gave the prisoner severs 
 blows, but of this he would not speak with certainty. He spoke h< 
 said as to this fact, rather as of an inference which he drew fron 
 the situation of the parties, than from any positive recollection 
 As soon as the prisoner had taken the sw'ord by the blade with hi; 
 right hand, he struck the deceased over the head with the butt 01 
 handle. The first blow the deceased received from the cane it 
 this way, caused him to give back, so that he stood with one foo 
 down on the street or carriage way, and the other resting on the 
 curbstoue at the corner. The prisoner continued to strike, ane 
 gave the deceased several blow's with the head of the sword in the 
 same way ; and the deceased to retreat about eight paces, till he 
 arrived nearly at the middle of Courtlandt-street, and rather it 
 Broadway, when he fell. The prisoner at the same time wat 
 in an incumbent posture over him. He seemed partly to fall, bu 
 did not lose his balance, and was not off his feet. The witness 
 till this time remained on the sidewalk, on the southerly side o , 
 Courtlandt-street, and as the parties went from him, the distanct i 
 between them and him was increased, and he could not so well $e< 
 what passed. As the deceased retreated, he made use of his hands 
 not only to ward off the blows, but offensively, and to strike tht | 
 prisoner, and manifested no intention or desire to give up the con 
 test previously to his fall. 
 
 When the deceased had fallen, and the prisoner was over him it 
 the incumbent posture described, the witness went up to them with 
 an intention to separate them. But going up directly behind th< 
 prisoner, who had on a box coat with large capes, he could no 
 well see what was passing on the ground. He saw no dagger in tht 
 hand of the prisoner. To say he saw the hand of the prisoner a 
 this time, would be too particular, it might have been concealed b\ 
 the capes of the prisoner’s coat; but he is certain that he saw hi; 
 right arm, and does not think he could then have been using the 
 sword or dagger in any way. Mr. Cambreleng further stated, tha 
 he had a vague impression that about a minute after the deceaset 
 fell, he saw some one pick up the dagger and hand it to the pri 
 >oner. 
 
167 
 
 Mr. Cambreleng also states, that in the first of the affray, and wuue 
 he prisoner was changing the dagger from the one hand to the 
 ther, lie thought also he had the best of the battle ; but af- 
 erwards, and as soon as the prisoner began to use the butt of the 
 ane, it appeared to him that the prisoner had decidedly the ad- 
 antage, not because he was stronger in person than the deceas- 
 d, they were nearly of equal strength, but because the prisoner 
 eemed to know more about it. 
 
 It is a rule of law, founded upon reasoning which must be 
 bvious to every one, that witnesses swearing affirmatively may 
 e believed, although they should be opposed by a greater number 
 f witnesses equally entitled to credit, swearing negatively ; or in 
 ther words, where a person swears positively that a fact did exist, 
 e may be believed, though many other witnesses may swear they 
 id not see it. There are abundant instances in this case for the 
 pplication of this rule. Take for example the testimony of Mr. 
 'lark, to which I have before adverted. He did not see the first 
 low given by the deceased ; he did not see the cane in the pos- 
 ;ssion of the prisoner at the commencement of the affray, nor did 
 e see it used during the contest. And yet we cannot doubt but 
 lat, as to these particulars, he did not see what really occurred. 
 
 1 think, gentlemeu, you must believe from the testimony of Mr. 
 ambreleng, corroborated as it is by the testimony of other wit- 
 esses in the cause, that from the moment the prisoner began to 
 rike with the head of the cane after it was unsheathed, he had 
 le advantage of the deceased : that though the deceased return- 
 1 the blows with his fist, he was from that moment retreating, and 
 iat while he was retreating, the prisoner continued to use the 
 eapon by striking the deceased with it till he fell. 1 shall refrain 
 otn making any observations on the testimony of the physicians, 
 you take the testimony of Doctor Mott, then it follows that it was 
 lpossible the deceased could have received the wound otlier- 
 ise than by falling on the dagger. But you will recollect the 
 unions of several other medical gentlemen in opposition to that of 
 octor Mott; and 1 must leave you to draw such conclusions from 
 is conflicting testimony as you may think proper. It is a little 
 igular, that the two medical gentlemen who were called to exa¬ 
 mine the body, with a view to their being witnesses on this occa- 
 :m, should differ even in their descriptions of the wound. 
 
 With these observations on the testimon ,, 1 shall now endeavour 
 state and explain to you so much of the law of homicide as it 
 i pears to me necessary you should understand, to enable you to 
 nder, as you are bound to do, your verdict according to law. You 
 ve been reminded with great earnestness, that you are in this 
 :d every criminal case, judges of the law as well as the fact. It is 
 1 th great satisfaction that 1 can charge you that this is your pro- 
 nce. You are sworn (o render your verdict according to the 
 <idence as applied to the law. You must be as conscientiously sa¬ 
 llied as to the law as to the fact. In this respect, the members of 
 tp court are but vour constitutional advisers : and if you do not 
 
believe the law to lie as it is stated to you by the court, if you can 
 not assent to the reasoning of the court as to the law, or are con t 
 vinced by the reasoning of the counsel that the bench is mistakei 
 with respect to the law, it is your duty to act according to the con 
 scientious convictions ofyour own understandings. I should not ii , 
 this case, as I seldom do in any case, have failed to have stated thi 
 to the jury. It is a consolation to me to think that any errors 1 ma 
 make either as to law or fact in the discharge of the duty 1 amnov , 
 performing, may be corrected by your good sense and discretion, j 
 
 The law of homicide, and of course the law of manslaugh 
 ter, is the same that it was in this country on the 19th o 
 April, 1775. By the constitution of our-state, it is declared tha \ 
 such parts of the law of England and of the then province as forme ' 
 the law of the colony on that day, should continue to be the law 
 unless it was altered by' the legislature. The legislature has mad' 
 no alteration in the law of homicide, except in respect to th 
 punishment. As the law now stands, the crime of manslaughte 
 must be punished in all cases with at least three years imprisonmer 
 in the state prison. I have no hesitation to say, that I do belicv 
 this never was intended by the legislature, but that it is the reap! 
 of careless revisions of several sections of different laws to wliic 
 we must refer to ascertain what is the punishment prescribed fc 
 this crime. 
 
 As the crime of manslaughter may on the one hand be so near) 
 allied to the crime of murder that there may be but little diffei 
 ence between the moral guilt of the one and the other, so on th 
 other hand the crime of manslaughter may approach so nearly t 
 excusable homicide that there may be but a shade of differenc 
 between them. It is lor this reason that the punishment of th 
 crime was by the English law, when we adopted it, left almost er < 
 tirely to the discretion of the judges, and the court might pass i 
 sentence which was in fact but a nominal punishment. 1 canir 
 believe, therefore, that the legislature of our state have foresee f 
 that their enactments would oblige their courts in all cases of mat S 
 slaughter to pronounce a judgment which must subject every pe 
 son found guilty of this crime not only to a severe, but a disgrace! 
 punishment. 
 
 But it is not our province to inquire what the law oug 
 to be, but what it is ; and we are bound to administer the la I 
 as it is. You are to say on your oaths whether or not, accordir 
 to the law as it exists, the prisoner has been guilty of the crin | 
 with which he is charged, and your verdict never can in the leu .1 
 depend on the consideration of what will be the consequences » 
 him if you should find him guilty. 
 
 We having adopted that part of the common law' of Englai 1 
 which relates to homicide, must resort to that law for a defir j 
 tion of the crime of manslaughter. We must resort to this law 
 our ancestors not only in this instance and for this purpose, b 4 
 without it we should, in every stage of judicial proceedings, I n 
 without a guide. We have no other authority by which we c 1 
 
189 
 
 istablish what shall and what shall not be considered as murder 3 
 ve cannot ascertain what constitutes a felony or a larceny without 
 ippealing to the common law of England. I am not an eulogist of 
 his law, but 1 may say that we derive from it our most sacred and 
 'aluable institutions. It is the common law of England that has 
 established the trial by jury ; it is under that law that the prisoner 
 low appeals to you as to his country, as to his guilt or innocence ; 
 md it is under that law that you are authorised to determine that 
 ppeal as you may believe the law and fact to be. 
 
 By the common law of England, which is now our common law, 
 nanslaughter, as I have before represented to you, is defined to be, 
 unlawfully killing a person witiiout malice expressed or implied.” 
 f there be malice, then the crime is murder. What constitutes or 
 3 evidence of malice, would be, when the prisoner is only charged 
 vith manslaughter, foreign to our present inquiries. 
 
 If it has been proved that the prisoner killed the deceased, or in 
 he words 1 have previously adopted, if it has been proved that the 
 eceased came to his death by the instrumentality of the prisoner, 
 hen the killing will be at least manslaughter, unless the prisoner 
 an show by testimony that he has himself produced, or by the 
 estimony brought forward on the part of the prosecution, that the 
 ailing was not unlawful. He has not done this, unless the testimony 
 as satisfied you that, in taking (he life of the deceased, he was either 
 ustitiable or excusable. And this leads us to a consideration of 
 aese two species of homicide. In other words, we are to consider 
 'hen, according to law, a homicide shall be considered as justifiable 
 r excusable. 
 
 A homicide is justifiable when a person is put to death either by 
 he command of the law, as when an officer duly inflicts a capital 
 ■uiiishment, or bv permission of the law'. 
 
 Homicide permitted by law, is for the advancement of justice, as 
 o prevent an escape, quell a riot, &c.—or for the prevention of 
 rime. If an attempt is made to perpetrate a crime which in itself 
 as capital, and punishable with death by the common law, if the 
 ccomplishment of that crime cannot otherwise he prevented, the 
 tw permits it to be done by slaying the offender. 
 
 I shall not, gentlemen, dwell on this branch of the subject, be- 
 mse it has not, l believe, been suggested by the counsel for the 
 risoner that the killing of Mr. Stoughton was a justifiable homi- 
 de, according to the legal acceptation of these terms. Indeed 
 iere could be no ground for such a suggestion, because there is 
 othing that would for a moment lead us to believe that the deceased 
 fended to commit a felony. No one can believe that when, un- 
 "med as he was, he struck the prisoner and engaged with him in 
 e fatal affray, armed as the prisoner was, that the deceased could 
 ive contemplated the possibility of his taking the life of the pri- 
 ner ; or that the prisoner could have had any just fears of such 
 i event. 
 
 The counsel for the prisoner have put his defence, as it appears 
 i me, on other grounds : they have endeavoured to convince you 
 
that the killing ol' the deceased was not justifiable, but that it wai 
 excusable. 
 
 This requires of us a more careful and particular consideration 
 of this species of homicide than 1 haye thought it necessary tc 
 bestow on those kinds of homicide 1 have already noticed. 
 
 Excusable homicide may be where the killing is either withou 
 the will of the slayer, or it may be where the killing is intentional 
 
 Involuntary excusable homicide is where one who is engaged it , 
 a lawful act, in the execution of that lawful act, happens, by men 
 accident and without any intention oh his part, to kill another. Thi 
 is also called homicide per infortunium, or misadventure. It is ai 
 essential quality of this species of homicide, that the act vvhicl 
 immediately caused the death was lawful ; if it were otherwise 
 then the killing cannot be excusable homicide. As an exemplitica 
 tion of the law on this branch of our subject, let us refer to sonv 
 of the very numerous cases which have been read to you. A per 
 son was chopping with an ax ; the iron flew off and killed a by 
 stander. This was excusable homicide, because chopping the woo 
 was a lawful act, and there was no intention to kill. But if th 
 slayer had been chopping at his neighbour's door to get into hi 
 house to commit a felony, or even a trespass, no doubt the killin 
 would have been at least manslaughter, because the slayer was en 
 gaged in an unlawful act. So a person shooting at a mark on hi 
 own ground, happened to kiil another, and was held excusable 
 But if he had been trespassing on bis neighbour when he cause 
 the death by' this means, he could not have been excused. 
 
 A parent correcting his child with u fit instrument for chastise 
 ment, with moderation, would be excused, though by some impre 
 bable accident, as hitting the child on the eye or on the temple i 
 death were to ensue, because it was lawful for him moderately t j 
 correct his child. But if he had given the child blows with an in f 
 proper instrument, such as a bar of iron, a heavy rope or a clui 1 
 and the child died in consequence, the parent would be guilty eij 
 manslaughter at least ; because it was unlawful for him to strike <1 
 child with such an instrument. 
 
 Blit as strong a case as can be put to illucidate that branch of th 
 law which I am now endeavouring to explain to you, is that of tt. 
 boxing match. Two farmers, prizefighters, according to the iff 
 human practice of I-Tngland, fought for a purse. The one, with • 
 blow of the fist given in the course of the fight, killed the other. \ 
 was convicted of manslaughter ; because, however the art of pugi i 
 ism may be sanctioned by the barbarous fashion of the country, 
 was against her laws. 
 
 It seems to me that these, and indeed all the other numerous a 1 
 tliorities which have been cited, establish, that a man cannot av< j 
 himself, when charged with a homicide, of the plea of misadventu fc 
 or accident, if it appear that the misadventure or accident happen' I 
 when he was engaged in an unlawful act. 
 
And this brings us to consider more particularly the question l 
 ave before surmised : that is to say, whether the prisoner, when 
 he mortal wound was received, was acting lawfully or unlawfully. 
 
 Notwithstanding the testimony of Mr. Clark, l presume, gentle, 
 sen, you cannot hesitate to believe that the deceased gave the lirst 
 low, but it does not follow that it was lawful for the prisoner to 
 eturn that blow. It does not follow that it was lawful for him to 
 eturn it with the formidable weapon which the prisoner held in 
 is hand ; the sword was then unsheathed. And much less does it 
 blow that it was lawful for the prisoner to follow with repeater] 
 lows, with the h.utt end of the drawn dagger, his retreating adver- 
 ary, till he had felled him to the earth. But I shall have occasion 
 lore fully and particularly to discuss the lawfulness of the prison- 
 r’s conduct under the next division of the subject, as 1 shall sub-, 
 lit it to your consideration. In the mean time allow me to notice 
 n argument which has been suggested by the prisoner’s counsel : 
 lat it was lawful for the prisoner to return the blow of the de- 
 eased ; because, if the deceased had survived, and had instituted 
 civil action of assault and battery against the prisoner, he could 
 ot have recovered in such an action, however he might have been 
 ljured, if it appeared yhat the deceased struck first. The law is 
 ertainly so ; but the inference, that therefore it was lawful for the 
 risoner to return the blow, is in my mind totally incorrect. If ;i 
 lan brings an action of assault and battens the defendant may plead 
 m assault demesne; which is, that the plaintiff committed the first 
 ssault ; and if he can prove or maintain this plea, the action will 
 e dismissed ; not because the defendant may not have returned 
 le assault unlawfully, but because the just policy of the law will 
 rt suffer a party in a civil suit to receive pecuniary damages for 
 1 injury which he himself invited, or for violence which was oc- 
 isioned by his own wrongful act or provocation. 
 
 But, that a first assault will not always justify a consequent assault 
 id battery, is established by the well-known and well-established 
 axim of criminal courts, that every assault will not justify every 
 ttery. It is upon this principle that we here frequently eonvict 
 >th parties to an afiray, in what are called cross indictments of an 
 sault and battery. That is, we convict both the person who 
 ■mmitted the first assault, and he who was first assaulted, if he 
 1 at his antagonist with more violence than was necessary to pro- 
 t’t himself and repel the attack, it is true, courts and juries are. 
 ;t very nice in measuring the force that may be lawfully used in 
 ipelling a first aggression of this nature ; but nevertheless it is well 
 itablished, that no more is lawful than is absolutely necessary for 
 df-defence. It is manifest, that if the law were not so, the most 
 I'uta! violence might go unpunished, if the slightest insult, by lay- 
 k hands in ever so light a manner, might be returned by unmerciful 
 lows and wounds to any extent; the law. instead of sanctioning 
 s f-protection, would countenance malice and revenge. 
 
172 
 
 With these observations on this point, I submit it to you,gentle 
 men, to determine whether the deceased can be said to have coun 
 to his death by misadventure. 
 
 The second species of excusable homicide is, where the killin: 
 may be intentional or voluntary, but is excused, because it wa 
 necessary for the slayer to take the life of his antagonist, to pre 
 serve his own life, or to protect himself from bodily harm. Thi 
 is what is called in law language chance-medley, or homicide se defer, 
 dendo. 
 
 But to render this plea availing, the slayer must show that he ha 
 at least probable grounds to believe that the attack of his adversar 
 put his own life in danger, or that it exposed him to great bodil 
 harm; and that he had no probable means of saving the one, c 
 avoiding the other, without putting his assailant to death. 
 
 Butso cautious is the law in admitting this plea of self-defence, th: 
 it recpiires that the slayer, before he resorts to these fatal means' 
 protecting himself, should manifest the necessity of doing so, l 
 retreating so far as the fierceness of the attack, and a due regard t j 
 his own safety, will permit. It is true that the assault may be i 
 sudden, violent and dangerous, as not to leave the parly a moment 
 time for reflection or retreat; and a blow returned under such ci 
 cumstances, though it proved fatal, might fie excusable. But u 
 fortunately we have not here to consider how far a single retui 
 blow might be lawful ; but we are to inquire whether it \gas lai 
 ful for the prisoner, armed as he was with that dangerous weapo i 
 which has been so often exhibited to you, to follow up his retreatii 
 and unarmed adversary with blow after blow. You will have i 
 decide, gentlemen, whether the prisoner had any reason to fearti i 
 loss of life, or even bodily harm, from the attack of the deceasei 
 and whether if he had, he showed any disposition to save himse 
 or to avoid a contest, by retreating. Upon these points 1 must i 
 feryou to the testimony of Mr. C'ambreleng; who, so far as it i 
 lates to these questions, is, in my opinion, uncontradicted and uni 
 peached. 
 
 1 shall, gentlemen, read to you some passages from a hook, whi 
 I believe lias not been ciled by the counsel on either side, and yl 
 mine is of higher authority : and no author has, in my opinion, giv 
 us the law on this subject more amply or more perspicuous 
 Researches have been made in writers of the most distant times' 
 the law of homicide, while, in my.opinion, all that we can desire ill 
 th is occasion, might be drawn in its utmost purity from this modu I 
 source. You wili find the author stating with the utmost exactne, I 
 that the circumstance which makes the distinction between excu" j 
 Me homicide in self-defence and manslaughter is, whether i:»I 
 slayer was combating or not when he occasioned the death ; if 1J 
 were combating and not necessarily for his ow n defence, then its^J 
 not excusable homicide, but is manslaughter. I refer to the 4th bicj 
 ol Blackstune's Commentaries, pages 103, 104, 105, 190, 191, MM 
 
173 
 
 1 2. Homicirle in self-defence, or se defendendo, upon a sudden 
 ,'ray, is also excusable rather than justifiable by the English law. 
 bis species of self-defence must be distinguished from that just 
 5 W mentioned, as calculated to hinder the perpetration of a capital 
 <une ; which is not only a matter of excuse, but of justification, 
 lit the self-defence which we are now speaking of, is that whereby 
 rnan may protect himself from an assault or the like, in the course 
 i a sudden brawl or quarrel, by killing him who assaults him. And 
 t s is what the law expresses by the word chance-medley, or (as 
 s ue rather choose to write it) ckaud-medley; the former of which 
 i its etymology signifies a casual affray, the latter an affray in the 
 lit of blood or passion : both of them of pretty much the same im- 
 jrt; but the former is in common speech too often erroneously 
 iiplied to any manner of homicide by misadventure. This right of 
 rtural defence does not imply a right of attacking : for, instead of 
 sacking one another for injuries past or impending, men need only 
 Ive recourse to the proper tribunals of justice. They cannot 
 t;refore legally exercise this right of preventive defence, but in 
 slden and violent cases ; when certain and immediate suffering 
 v uld be the consequence of waiting for the assistance of the law. 
 therefore, to excuse homicide by the plea of self-defence, it must 
 apear that the slayer had no other possible (or, at least, probable) 
 nans of escaping from his assailant: 
 
 ‘ It is frequently difficult to distinguish this species of homicide 
 (aon chance-medley in self-defence) from that of manslaughter, in 
 t: proper legal sense of the word. But the true criterion be- 
 t sen them seems to be this : when both parties are actually com¬ 
 bing at the time when the mortal stroke is given, the slayer ig 
 t m guilty of manslaughter ; but if the slayer hath not begun t® 
 fht, or (having begun) endeavours to decline any farther struggle, 
 ail afterwards, being closely pressed by his antagonist, kills him to 
 and his own destruction, this is homicide excusable by seif-de- 
 fice. For which reason the law requires, that the person who 
 Ms another in his own defence, should have retreated as far as he 
 c iveniently or safely can, to avoid the violence of the assault, be- 
 fie he turns upon his assailant; and that not fictitiously, or in order 
 tnvatch bis opportunity, but from a real tenderness of shedding 
 h brother’s blood. And though it may be cowardice, in time of 
 w between two independent nations, to flee from an enemy ; yet 
 bween two fellow subjects the law countenances no such point of 
 hiour; because the king and his courts are the vindices injuria- 
 ru, and will give to the party wronged all the satisfaction he de- 
 s< ves. The party assaulted must therefore flee as far as he con- 
 v liently can, either by reason of some wall, ditch, or other im- 
 p liment; or as far as the fierceness of the assault will permit him : 
 fc| it may be so fierce as not to allow him to yield a step without 
 mifest danger of his life, or enormous bodily harm ; and then in 
 h defence he may kill his assailant instantly. And this is the 
 di trine of universal justice, as well as of the municipal law. 
 
*■ And, as the manner of the defence, so is also the time to ] 
 considered : for if the person assaulted does not fall upon the si 
 gressor till the affray is over, or when he is running away, this 
 revenge, and not defence. 
 
 “ 1. Manslaughter is therefore thus defined, the unlawful killi t 
 of another, without malice either express or implied : which m , 
 be either voluntarily, upon a sudden heat; or involuntarily, butl 
 the commission of some unlawful act. And hence it follows, that < 
 manslaughter there can be no accessaries before the fact; becau t 
 it must be done without premeditation. 
 
 “ As to the first, or voluntary branch : if upon a sudden quari , 
 two persons fight, and one of them kills the other, this is ina I 
 slaughter ; and so it is if they upon such an occasion go out a 1 
 fight in a field ; for this is one continued act of passion : and t 
 law- pays that regard to human frailty, as not to put a hasty and ci 
 liberate act upon the same footing with regard to guilt. So also' 
 a man be greatly provoked, as by pulling his nose, or other gn 
 indignity, and immediately kills the aggressor, though this is i 
 excusable se defendendo , since there is no absolute necessity i*j 
 doing it to preserve himself; yet neither is it murder, for there 
 no previous malice ; but it is manslaughter. 
 
 “The second branch, or involuntary manslaughter, differs a 
 from homicide excusable by misadventure, in this : that misadvt 
 ture always happens in consequence of a lawful act, but this sj 
 cies of manslaughter in consequence of an unlawful one. Af 
 two persons play at sword and buckler, unless by the king’s co 
 rnand, and one of them kills the other, this is manslaughter: 1 
 cause the original act was unlawful ; but it is not murder, for 
 one had no intent to do the other any personal mischief. So wh(< 
 a person does an act lawful in itself, but in an unlawful manner,? 
 without clue caution and circumspection : hs when a workman lliii 
 down a stone or piece of timber into the street and kills a man ; t: 
 may be either misadventure, manslaughter, or murder, according 
 the circumstances under which the original act was done: il 
 were in a country village where a few passengers are, and he c; 
 out to nil people to have a care, it is misadventure only ; but il 
 ■were in London, or other populous town, where people are co 
 tinually passing, it is manslaughter, though he gives loud Wir¬ 
 ing ; and murder if he knows of their passing, and gives no wa- 
 ing at all, for then it is malice against all mankind. And, in u 
 neral, when an involuntary killing happens in consequence of# 
 unlawful act, it will be either murder or manslaughter according* 
 the nature of the act which occasioned it. lf.it be in the proseel 
 tion of a felonious intent, or in its consequences naturally tended# 
 bloodshed, it will be murder; but if no more was intended than 
 mere civil trespass, it will only amount to manslaughter.” 
 
 The case of Mr. Selfridge, who was tried before Chief Just^j 
 Parker, has been referred to by the counsel for the prisoner, w» 
 high and just commendations on the learned judge who presided* 
 
175 
 
 i t occasion. I shall read you some passages from the report of 
 I t case, that you may the better understand it. 
 
 The mayor read the following passage from the charge of the 
 ef justice :) 
 
 ‘ The counsel for the defendant seem to deem it of little 
 nortance to ascertain whether the blow was given before the 
 :ol was discharged or not, as there is evidence from all the wit- 
 i.ses, that an assault, at least, was made by the deceased, before 
 : pistol was fired. I think differently from them upon this 
 <nt. When the defence is, that the assault was so violent and 
 <ce that the defendant could not retreat, but was obliged to kill 
 r deceased to save himself, it is surelyof importance to ascer- 
 i whether the violent blow he received on his forehead, which 
 the same time that it would put him off his guard, would satisfy 
 i of the design of the assailant, was struck before he fired or 
 
 I doubt whether self-defence could in any case be set up where 
 h killing happened in consequence of an assault only , unless the 
 siult be made with a weapon which, if used at all, would proba- 
 1 produce death. 
 
 When a weapon of another sort is used, it seems to me that the 
 Act produced, is the best evidence of the power and intention of 
 s assailant to do that degree of bodily harm, which would alone 
 uiorize the taking his life on the principles of self-defence. 
 
 But whether the firing of the pistol was before or after a blow 
 lick by the deceased, there is another point of more importance 
 nyou to settle, and about which you must make up your minds, 
 xi all the circumstances proved in the case ; such as the rapidi- 
 f id violence of the attack, the nature of the weapon with which 
 as made, the place where the catastrophe happened, the mus- 
 u r debility or vigour of the defendant and his power to resist or 
 ) k The point I mean is, whether he could probably have saved 
 inelf from death or enormous bodily harm, by retreating to the 
 M, or throwing himself into the arms of friends who would pro- 
 ?chim. This is the real stress of the case. If you believe, under 
 Hie circumstances, the defendant could have escaped his adver- 
 ar’s vengeance, at the time of the attack, without killing him, the 
 eJnce set up has failed, and the defendant must be convicted. 
 
 If you believe his only resort for safety was to take the life of 
 is ntagonist, he must be acquitted, unless his conduct has been 
 k prior to the attack upon him, as will deprive him of the privi- 
 -g of setting up a defence of this nature. It has, however, been 
 ugjjsted by the defendant’s counsel, that even if his life had not 
 ec in danger, or no great bodily harm, but. only disgrace was in- 
 : n ;d by the deceased, there are certain principles of honour and 
 at al right, by which the killing may be justified, 
 
 ‘These are principles which you as jurors, and I as a judge, can- 
 ot ecognize. The laws which we are sworn t« administer, are 
 otlrunded upon them. 
 
 I 
 
170 
 
 “ Let those who choose such principles for their guidance, eij 
 a court for the trial of points and principles of honour ; but let I 
 courts of law adhere to those principles which are laid down in i 
 books, and whose wisdom ages of experience hare sanctioned,! 
 therefore declare it to you as the law of the land, that unless j 
 defendant has satisfactorily proved to you, that no means ot sail 
 his life, or his person from the great bodily harm which was :q . 
 rently intended by the deceased against him, except killing his . 
 versary, were in’his power, he has been guilty of manslaughl 
 notwithstanding you may believe with the grand jury w ho found j 
 bill, that the case does not present the least evidence of malice! 
 premeditated design in the defendant to kill the deceased or i 
 other person. - 
 
 “ 1 ought not to rest here ; for although I have, stated to you j 
 when a man’s person is tiercel}' and violently assaulted, under 
 cumstances which jeopardize his life or important members, 
 may protect himself by killing his adversary ; yet he may from 
 existence of other circumstances proved against him, forfeit 
 right to a defence which the laws of God and man would other' 
 have given them. 
 
 “ If a man, for the purpose of bringing another into a qua: 
 provokes him so that an affray is commenced, and the person cau 
 the quarrel is overmatched, and to save himselffrom apparent 
 ger kill his adversary, he would be guilty of manslaughter ifn* 
 murder, because the necessity being of his own creating, shall! 
 operate in his excuse.” 
 
 I had intended, gentlemen, to read you other passages from* 
 book, but I find myself so fatigued and exhausted, that 1 mustl 
 deavour, as far as I possibly can, to abridge the task in which I 
 engaged. I shall, therefore, trust to my memory to give youl 
 outlines of that case, that you may see that it was as different, 
 this as almost any other case could be. 
 
 Mr. Selfridge had been offended with Mr. Benjamin Austin 
 father of the young gentleman who was killed, in consequenc 
 which, Mr. Selfridge posted the father, by publishing in the pa 
 an advertisement in very harsh terms. Mr. Selfridge learned 
 the father had said that he wmuld not have any altercation with 
 Selfridge himself, but that some one would take him in hand 
 could handle him. Mr. Selfridge considered this as an intitn 
 that he was to be attacked ; and when he went out on his ordi 
 business, he put a loaded pistol into his pocket. Mr. Selfridge wi 
 feeble man. As he was going to the exchange, he was attaclu 
 the street by young Mr. Austin, who suddenly rushed uponfl 
 with a cane with which he made a blow at the head of Mr. 
 fridge, on which Mr. Selfridge drew his pistol and shot the ia-iil- 
 ant. There was some contradictory testimony whether Mr. #1 
 fridge received the blow on his head before the pistol was 
 or whether he tired as Mr. Austin was striking the blow. MrJB 
 fridge, how'ever, received a large contusion on his forehead, aull 
 
177 
 
 \)\v was with so weighty an instrument and with such force, that 
 made a considerable opening in his hat. It was left to the jury in 
 at case to determine whether the attack was not such a one as 
 jit the slayer in danger of life, or of great bodily harm : and whe- 
 :er it was not so sudden as to render a retreat impossible, consist- 
 itly with the safety of Mr. Selfridge./ The jury must have found 
 irmatively on these points, and therefore acquitted Mr. Selfridge, 
 i tiie ground that the homicide was excusable in self-defence. 
 ie same points are referred to you now, gentlemen, but I regret to 
 ■y, upon a totally different state of facts. 
 
 There is one other rule of law which, anxious as I am to conclude, 
 hei myself bound to notice : it is, that the slayer shall not be per- 
 rtted to avail himself of the plea of self-defence, if he designedly 
 pvoked the deceased to make the first assault. To this point 
 jveral authorities have been read to you. You have already 
 hird the opinion of the court, gentlemen, that the prisoner did not 
 enmit an assault by pointing his cane at the deceased when they 
 aproached each other, because there was nothing in that action 
 rich indicated that the prisoner had an intention to strike the de> 
 cised at that moment : but nevertheless, when the prisoner ac- 
 enpanied that scornful action with the reproachful and insulting 
 wrds, “ there goes a coward and a scoundrel”—when he repeat- 
 3 this action and these words at the very side of I he prisoner, can 
 a say he did not provoke the deceased to assault him ? 
 
 f, gentlemen, the principles of law be as 1 have stated them to 
 yi. then it is immaterial as to the verdict )ou are now to render, 
 rvetherthe wound was given while the deceased held the dagger in 
 h hand, or whether during the affray the prisoner dropped or threw 
 juy the sword, and the deceased, in consequence of a blow or 
 vdcnce from the prisoner, fell upon it. 
 
 say, in my opinion, it will make no difference whether the de- 
 :(sed came by his death in the one or the other of these ways ; 
 si e the question is, whether the slayer be guilty of manslaughter, 
 uiot guilty, and not whether he be guilty of manslaughter or mur- 
 lf. If killing without an intent to kill, in the execution of an un- 
 aful act, be manslaughter, then it is immaterial by what means 
 h death is produced, so it immediately proceeds from the unlaw- 
 uuct. Suppose two men were fighting, and oneshould knock ihe 
 st rdown, and by his fall on a stone be should fracture his skull, 
 in he thereby lose his life, can it be douhted but that it would be 
 n; slaughter ? One man knocks another off a stoop, or out of a win- 
 lo, and death ensues in consequence of the fall : no question but 
 t jpuld he manslaughter, although it should ever so manifestly ap- 
 ae- there was no intention to kill. 
 
 at if you Should be of opinion that the deceased came to his 
 le h 1 >v filling on the dagger, then, as you heard me state in an 
 stage of this cause, there is a technical question whether the 
 arimer can be convicted on this indictment, though he should have 
 ihi comojilted the crime of manslaughter. 
 
17cJ 
 
 This indictment, in every count, charges that the prisoner ii 
 dieted the wound with a sword or dagger held in his hand, and th 
 question is, whether the testimon} will support the indictment, it' 
 proves that the wound was not given by the prisoner’s hand, bui ri 
 ceived in the fall. 
 
 After the best consideration I have been able to give this subjec 
 the doubts I had have been removed, and l now believe the indie 
 merit may be supported by such proof. The rule oflaw is, that tl 
 indictment and proof must correspond as to the nature or kind i 
 death. variance as to the particular manner is immaterial. Thus,; 
 you may have learned from the authorities which have been re; 
 to you, where the indictment charged the wound to have bee 
 given by a sword, it was considered as supported by testimony, 
 it was given by a staff. So where the indictment charged the dea 
 to have been occasioned by the administring of one kind of poiso 
 and it was proved that the poison was of a different kind, the slayi 
 ivas convicted. But if the indictment charged the death to be 1 
 stabbing, it would not be supported by evidence that the deceasi 
 was drowned : nor if the charge was that he was drowned, wou 
 it be supported by evidence that he w'as poisoned : because the 
 means of death are of a different kind or nature. In this case, ti 
 death is charged to have been occasioned by a wound w ith a swo 
 or dagger, and as it is not disputed but that the deceased came 1 
 his death by such a wound, I think it immaterial whether the" pi 
 soner held it in his hand or not, provided his unlawful act occasio 
 ed the wound. 
 
 I have given my opinion or advice to you on the law poir 
 which have arisen in this interesting cause, without hositalii 
 or reserve : I have felt myself bound to do so, when 1 in fa 
 entertained no doubt as to the law. But that the prisoner m 
 have the full benefit of the errors I may have committed, I havei 
 duced to ivriting the legal advice I have given you, in the form 
 points, that my opinions may with the more facility be reversed 
 a higher tribunal. These 1 will now read to you : 
 
 POINTS. 
 
 1. The law of homicide, and of course the law of manslaughti 
 is the same as it was in this state on the 19th of April, 17' 
 so far as it has not been altered by acts of the legislature, sub: 
 quent to the adoption of the state constitution. And the legislating 
 has passed no act on the subject that can affect this case, except 
 relation to the punishment, which the jury ought not to take ii 
 consideration. 
 
 2. If the prisoner intentionally gave the mortal wound while | 
 was fighting with the deceased, and the prisoner was not in dang 
 of life or great bodily harm, the killing may be manslaughb. 
 though death was not intended, and though the deceased struck h 
 first blow. 
 
 3. If the dagger fell from the hand of the prisoner, or he thr ' 
 it down after it was unsheathed and he had used it to beat the.*1 
 
179 
 
 (•eased, and while the prisoner was fighting with the deceased ; and 
 jf while the prisoner continued t.o fight with the deceased, and the 
 prisoner was not necessarily defending himself from loss of life or 
 great personal harm, or just apprehension thereof, the deceased fell 
 upon the dagger in consequence of a blow or violence offered by 
 the prisoner, and so received the mortal wound, it may be man¬ 
 slaughter. 
 
 4. That although the wound be charged in the indictment to have 
 been given with a weapon held in the hand of the prisoner, yet he 
 ma}' be convicted of the offence charged in the indictment, though 
 the jury should believe he came tp his death in the manner last 
 supposed. 
 
 Testimony has been introduced as to the prisoner’s conduct after 
 the affray, and when he was arrested and brought for examination 
 before me. 1 can only say, that 1 have perceived no evidence of 
 any thing in the prisoner’s expressions or behaviour subsequent to 
 the death rf the deceased, inconsistent with the defence now set 
 up for him, that the wound was given without his intention or know¬ 
 ledge. And I feel it incumbent to state to you, that in all my official 
 intercourse with him, he has conducted himself with great propri¬ 
 ety : he has manifested a manly firmness, and at the same time a 
 manly feeling. I have never, gentlemen, been able to look upon 
 him, and cannot now look upon him, without the most sincere re¬ 
 gret that he should be placed in the situation in which he Stands. 
 
 I have now, gentlemen, nearly concluded the anxious and pain¬ 
 ful task I have had to perform. I will only add, that if you have 
 any rational doubts as to the law or facts, you ought to acquit; but 
 if you have not, you are bound to say, whatever pain it may cost 
 you, that the prisoner is guilty. In the one case an offender may 
 escape unpunished, in the other, you may have tearful eyes, but 
 you will have peaceful hearts. 
 
 It was now a quarter past one o’clock ; and as from the time the 
 ury were to be given in charge to the officers sworn to keep them, 
 hey could not have any refreshment, the court proposed waiting till 
 hey should partake of something prepared for them by the care of 
 he sheriff. They accordingly retired under the charge of two 
 narshals, and returned at two o’clock, the court still waiting to re¬ 
 vive them ; aod their names being again called over, the same two 
 officers, together with Mr. Abraham Aston, one of the deputy she- 
 'iffs, were sworn, and their oath was this : “You shall go out with 
 he jury who are sworn in this cause ; you shall keep th,em toge- 
 her in some private and convenient place, without meat or drink ; 
 :'ou shall suffer no person to speak to them or either of them, nor* 
 peak to them yourselves, nor to either of them, until they shall 
 gree on their verdict, unless it be to ask them if they have agreed 
 n their verdict, without being otherwise directed by the court.” 
 
 The jury remained out till six o’clock of the following (Saturday) 
 fternoon, when they announced to the court by one of the offi- 
 
130 
 
 te rs, that they were agreed on their verdict. The pressure and 
 anxiety of the crowd was such, that the court took precaution to 
 prevent my indecorous expression of feeling ; and the mayor ad¬ 
 monished the audience of the necessity of observing good order and 
 silence. 
 
 The jury being now returned to the jury box, their names were 
 called over, and they all answered as before. 
 
 Clerk. Gentlemen, have you agreed on your verdict ? 
 
 Mr. Gordon, ilie Foreman of the Jury. YVe have. 
 
 Clerk. Robert M. Goodwiu, prisoner at the bar, stand up ; pri¬ 
 soner, look upon the jurors ; jurors, look upon the prisouer. IIow 
 say you, gentlemen, do you find Robert M. Goodwin, the prisoner 
 at the bar, guilty or not guilty of the felony with which he stands 
 charged ? 
 
 Foreman. Guilty. But we beg leave to recommend him to the 
 mercy of the court. 
 
 Before the verdict had been received and recorded, Mr. Hoff¬ 
 man, on behalf of the prisoner, prayed that the jury might be polled ; 
 and further, that they might be instructed by the court, that al¬ 
 though they had joined in the general verdict given in by their fore¬ 
 man, they were still at liberty to dissent from it. 
 
 The Mayor. Gentlemen, what the counsel has said is (rue, and I 
 will further add,that unless your consciences will justify you in the 
 verdict given in by the foreman, it is not only your right, but your 
 4uty, to dissent, which you may do as you shall be separately asked. 
 
 Clerk. Gentlemen, you will have the goodness to pronounce 
 your verdict separately, whether guilty or not guilty, as your names 
 shall be called. 
 
 James Glass, how say you ? 
 
 Mr. Glass answered, Guilty, but recommended the prisoner to 
 the mercy of the court. 
 
 Clerk. Garrit Van Cleef, how say you ? 
 
 Mr. Fan Cleef —Guilty. 
 
 Clerk. John M. Seaman, how say you ? 
 
 Mr. Seaman, (after mine pause) — Mot Guilty. 
 
 Mr. Href man. That is sufficient, sir. 
 
 The jury were then desired to retire, and reconsider of their 
 verdict. 
 
 Air. Ballet then asked, on behalf of himself and his fellow jurors, 
 ■whether the jury might not have with them a correct minute of 
 the testimony, either from the counsel or the court, as there were 
 some points respecting which there were doubts among them : to 
 which it was answered by the mayor, that the court would assist 
 them as far as it could, but that they could not have recourse to 
 the minutes of the counsel, which might differ one from the other. 
 
 The juror also requested a further explanation on these two points: 
 1st. As the indictment charged the death to have been caused by a 
 thrust, and there was some evidence from which it might be infer¬ 
 red that it happened by the deceased falling on the weapon, if the 
 jury shoulJ be of opinion that it happened so, or in any other way 
 
181 
 
 than by a thrust, whether that would be a variance in the proof; and 
 whether, taking that as the fact, it would sustain a verdict of guilty 
 of the crime charged in the indictment ? 
 
 2nd. Whether the prisoner was acting unlawfully when he re¬ 
 turned the blow of the deceased ; and whether they were so to un¬ 
 derstand the charge. 
 
 The Mayor. You are right, sir, in so understanding it: I did so 
 charge you, gentlemen. The law in a criminal indictment is, that 
 unless a man is assaulted so sev erely as to think himself in danger 
 of life or great bodily harm, it is an unlawful thing to return the 
 blow, as his recourse should be to the laws of his country for re¬ 
 dress. But I do not think the case turned upon that ; for however 
 the Jaw might be as to the returning a single blow, it was not lawful 
 for the prisoner to follow up the blow when the deceased was re¬ 
 treating. 
 
 Mr. Hoffman wished to know whether that was the opinion of the 
 ;ourt, or only of his honour the Mayor. 
 
 The Meyc~ requested the other members of the court to give 
 '.heir opinion. 
 
 Alderman Allen. I do not agree with the Mayor entirely. I do 
 lot think Mr. Goodwin was acting unlawfully in returning the blow, 
 mt 1 do think it was unlawful, when the deceased was retreating, to 
 ollow it up as he did. 
 
 Alderman Thorp assented to this opinion. 
 
 The Mayor. I do not see that we differ very materially. 
 
 The jury thereupon retired ; the same marshals, together with 
 Ur. Jacob Hays, the high constable, being sworn as before to take 
 :harge of them. 
 
 SATURDAY, MARCH 18th, 1820, 
 Half past 11 o'clock, P. M. 
 
 It being now within half an hour of the legal termination of the 
 sessions, the court sent to know whether the jury were agreed ; 
 nd being informed they were not, they were sent for, and return- 
 d into court, and were again called over by their several names, and 
 1 ! answered. 
 
 The Mayor. Gentlemen of thejurj', the court have received in- 
 irmation that you are not yet agreed on your verdict: is it likely 
 lat you will be able to agree within half an hour, which is the la- 
 jjst period to which the court, according to law, can prolong its 
 tting ? 
 
 A juror. There is not the least possibility of our agreeing. 
 
 11ie Mayor. Are we to understand that sentiment to be unani- 
 tous ? 
 
 A juror. In that, may it please the court, we are all of one opin- 
 
 The Mayor. Gentlemen, this is an unfortunate circumstance : the 
 nirt, however, think that they have exercised their power of 
 eeping you together as long as it is necessary or right; for this 
 
182 
 
 power must have some limit, and the court some discretion in tli 
 exercise of it, otherwise it might sometimes prove intolerable t 
 jurors. 1 his court has its authority now but for a few minutes 
 and considering the multitude of anxious spectators, and the time c 
 the night, it might not be prudent to suspend this proceeding til 
 the very last moment. The court regret that they have bee 
 obliged to keep you so long, and in discharging you, think it a dut 
 to thank you for the attention you have shown, and the services yo 
 have rendered during this painful session. Your present disagree 
 mcnt is no doubt honest, since no man has been willing to sacritic 
 his duty to his conscience. 
 
 The jury were now discharged. 
 
 MOTION TO BAIL. 
 
 Mmro. May it please the court. I now renew my former appli 
 cation that the prisoner be admitted to bail, and 1 hope there cai 
 be no doubt that he is entitled to it. The whole evidence hasbeei 
 before the jury, and the}' cannot, upon that testimony, find bin 
 guilty. I pray, therefore, that he may be bailed, and in a very mi 
 tigated sum. 
 
 Fan JVyck. I cannot consent to this application, not only bccaus 
 it is a surprise at this moment when there is no time to discuss thi 
 merits of it, but because it is founded upon what has just nov 
 passed in the court ; whereas it appears to me, as far as any con 
 elusion can be drawn from the circumstances, it must be rathe 
 against than in favour of the prisoner. The jury came into cour 
 with a verdict of guilty : upon a scrutiny, however, it appeared tha 
 thev were not unanimous, and because they could not agree, the} 
 were finally discharged. It would lead the court too far at this lab 
 hour to go into the arguments and objections upon which we an 
 certainly entitled to be heard. 
 
 The indictment shows that there is a probability of guilt. Cat 
 the court now say that there is any strong probability that this de 
 fendant will be, or ever ought to be, acquitted by a jury ? The 
 death of the man, the conflict with the deceased, the means of hi. 1 
 coming by his death, alf this is before the court, and upon sue! 
 ample proof, that if it acts upon the principles which have alway 
 governed courts, it will not, I think, admit this prisoner now t< 
 hail. The court has already heard and examined all the authorities 
 it would be supererogation to repeat them, and needless to ciU 
 ethers. 
 
 Griffin. At this late hour, and fatigued as the court has been, 1. 
 should not willingly enter into any discussion that would enhance 
 the difficulty either of the court or of the counsel. On the formei 
 motion for bail I cited authorities establishing this general posi 
 tion, that in all cases where the prisoner was charged with felony o 
 any description, he could not, by the law of the land, be bailed 
 unless circumstances existed that created a reasonable presumptioi 
 of his innocence, and that the law required his person for security 
 and that money could not be substituted. I established that posi 
 
183 
 
 h upon authorities going back above two hundred years, and upon 
 mciples that must operate in all civilized communities. The 
 • ijcl jury have found this prisoner guilty of a felony. Has any 
 lag which has since passed negatived that charge ? 
 
 I'he Mayor. It is too late to open this wide field of dicussion : if 
 t your part you go into the merits and the evidence, the other side 
 rst have liberty to answer, and the night is too far spent. 
 
 Jriffin. I will then submit it upon this single inquiry : where will 
 1 court find one circumstance tending to show that the prisoner 
 siot guilty ? If the presumption of his innocence does not nutu- 
 ry'grow out of the testimony, nor can be inferred from no one 
 rt of it, then the great principle must govern. There is no 
 [■■son for letting him to bail. 
 
 Veils. I have no wish to prolong this discussion, but I will state 
 ,vat I think conclusive, that the application was refused the last 
 :ttn, upon deliberate argument and more deliberate adjudication : 
 tin what has happened since 1 ***** * 
 ioffman. Will the court hear more than two counsel on a side ? 
 Veils. I only want to state one or two positions, and argue no 
 ,'t.her. I should have finished by this time if the counsel had let 
 ai proceed. The causes of the former refusal are in the recollec* 
 tin of the court. Has any thing happened to change the grounds ? 
 Te prisoner has been brought to his trial, and the jury have not 
 muitted him. At the very least then, it remains as indifferent as 
 bore :ffhe presumption of his guilt is not diminished, nor that of 
 hi innocence increased ; and this trial cannot operate in his favour. 
 
 1 ress it no further than to say, that it is as if no trial had taken 
 pke : and then how does this application differ from that made be- 
 i’oi the trial, when upon the most mature deliberation the motion 
 w refused ? This then being, as to the present question, a mere 
 nijity, what other reason is there? where is the delay or default 
 or.he part of the people ? where any new merits on the part of the 
 proner, that should give him any new advantage ? 
 
 lunro. The case certainly stands very differently now before 
 li court, from what it did the last time it was moved. I then 
 Tvved, and the court then decided, that it had power to bail : but 
 it d not think proper to exercise that discretion, because the pi i- 
 *o?r was charged with murder by a coroner’s inquest. I then cited 
 auiorities to show, that where there is no charge but that of man- 
 dighter, the court that has power to try or discharge, would not 
 ■n uch a case refuse to bail. Now, that the coroner’s inquest is 
 gi n up, that objection falls to the ground. 
 
 (Vie Mayor. With respect to the law, I should be very sorry 
 no to recommence an argument of 12 or 14 hours duration. Wo 
 hay the statute for our guide, that wherever a man is committed 
 foipetit larceny, or merely on suspicion of a felony, this court 
 in; admit him to bail. And further : this court has heretofore ex¬ 
 posed an opinion, that where a prisoner of this court is charged 
 wi any felony which it is competent to try, it will use its discre¬ 
 dit) in granting or refusing to bail. But this discretion is not ar 
 
181 
 
 bitrary : it would be then despotism and tyranny. There must 
 circumstances to justify the court in the exercise of that discrete 
 ary power. Where there is a positive charge of felony, the co 
 or judge may look into the testimony which has been given pi 
 licly to a jury, and if there appears a legal, probable, presumpti 
 of his innocence, they may bail him. Now it is said, that the prisi 
 er is to be bailed in consequence of the proceedings of this jury 
 think, however, that they do not alter the case ; and it would 
 extraordinary that we should, from what has passed here before 
 draw a different inference from what we did antecedently. Wi 
 1 to give an opinion now, 1 could only say, that consistent-with ( 
 principles of law which ought to govern the case, 1 never coi 
 consent. But 1 think it is loo unreasonable at this moment, f 
 under this pressure of time and occasion, to call upon the cour t 
 a decision which might oblige them to enter into another Inborn 
 investigation. There is the less necessity for it, as the prisoner 
 entitled to his habeas corpus before a judge of the Supreme Cot 
 or before any officer or commissioner representing a judge of t 
 Supreme Court. The depositions now before the court may be p 
 duced before the magistrate to whom this application may be mai 
 I therefore give my opinion, that this application ought not to 
 complied with. 
 
 Alderman Allen. I differ with the Mayor. I think we are co 
 petent to bail. I view this case as I would one of petit larcen 
 and being competent to bail, 1 consider the case so far altei 
 since the last application, as that we may change our former det< 
 ruination, though I do not wish to draw any pointed inference as 
 the guilt or innocence of the prisoner. 
 
 Alderman Thorp. I consider the cause of our former refusal, 
 not now existing in the same extent. The reason of our Join 
 refusal was a coroner’s inquisition, which is no longer in the w 
 since the district attorney has declared that he does not mean 
 try the prisoner upon it : and since we before refused to bail i 
 prisoner, he has been a month longer in gaol : for these reason 
 am of opinion that he should now be admitted to bail. 
 
 Alderman Morss, who had taken his seat this day on the ben< 
 was of opinion with the Mayor. The court being thus divided, ti 
 motion was lost. 
 
 And the court was adjourned till the first Monday of April 1 
 lowing. 
 
 MONDAY, MARCH 20, 1820. 
 
 .Mayor's Office, City Hall 
 
 This day the prisoner was brought before his honour the May 
 at his public office, on a writ of habeas corpus, allowed by i 
 honourable Peter A. Jay, Recorder of the City of New-lork, 
 turnable before the honourable Cadwallader D. Golden, Mayor, lj 
 And the writ being produced by the officer, the Mayor observ, 
 that there was no return endorsed upon it. He suggested the fc( 
 
185 
 
 I the return, and the keeper of the City Prison, Mr. Garrit Sickles, 
 line and endorsed his return thereon, that the cause of the deten- 
 tm of the prisoner appeared by the schedules annexed : which 
 fhedules were, the commitment by the Mayor, on the 21st of 
 hcembor, for the murder of James Stoughton, and that of the 
 (n oner on the 24th of December, on the same charge ; and the 
 vit was marked “ By the statute .” 
 
 Tlie Mayor then observed, that the writ being thus marked by 
 tb statute, appeared not to be a common law writ ; and suggested 
 nether, as the return showed that the prisoner was committed 
 p felony plainly expressed in the warrant of commitment, the ex- 
 |[)tion iii tlie statute did not apply, and forbid his further inter¬ 
 fence ; which must depend upon his having power to reject the 
 vrds “ by the statute and consider it as having issued at common 
 1:/, which he seemed inclined to think he might do. 
 
 Another question was, whether the Mayor of the city of New- 
 irk had those powers which are given to judges of the common 
 ) as, by the act passed April 20, 1818, vesting certain powers in 
 | judges of the courts of common pleas. (L. N. Y. vol. 4. c, 173.) 
 And supposing the Mayor had by that act the powers of a judge 
 o he supreme court, whether he coulJ, in vacation, hail a person 
 Cinmitted for felony, on a habeas carpus issued at common law. 
 
 And lastly, whether the Recorder, or any other magistrate, could 
 sie a habeas corpus at common law, returnable before any other 
 Bjistrate than himself. 
 
 The counsel professing they were not prepared to discuss these 
 •j -.stions, the Mayor said he would adjourn the hearing till tlie 
 art morning ; and in the mean time examine the law on these 
 pints, and be better prepared to derive assistance from the argu- 
 b its the counsel might then think proper to offer. 
 
 ’he prisoner’s counsel said they wished, as far as it could be 
 iciplied with, to dispense with forms, and have a decision on the 
 ■i it. They also asked whether his honour the Mayor would ex- 
 fat all the evidence of what passed before him at the trial to be 
 lg n submitted to him. 
 
 he Mayor. I should wish every question decided on its merits ; 
 Hi though I might despise mere forms, yet l must be responsible 
 o my acts: and if it be inquired hereafter why I bailed or refused 
 Ojiail, it may be asked upon what evidence 1 proceeded. Now 
 Emmet’s notes may be one way, those of another counsel may 
 Indifferent—mine may be one way, and those of the Aldermen 
 m her ; and a judge might as well tto at once upon his own recol- 
 Ilon. 
 
 p\ Munro proposed that the counsel on both sides should con¬ 
 ic to take the mayor’s notes as the true statement of the facts. 
 he Mayor said he would have the less objection if the statute 
 rs the matter to the district attorney, and he consents. 
 
 "\an Wyck, District Attorney. This depends upon a preliminary 
 Eftion suggested by tlie mayor ; and I must first know whether 
 ■presence is necessary. If this he a proceeding before a judge, 
 
 24 
 
as a commissioner, I have no business here; I am only e 
 filled to notice, in cases under the statutes which give the pmv • 
 • it bailing to the lirst judge of the county, (see the habeas corp 
 act, 1 R. L. 356, and the act concernin'! the Courts of Comm' 
 I'leas and General Sessions of the Peace in the several counties 
 this state, 2 R. L. 148.) 
 
 The motion was adjourned until the following morning. 
 
 It being thus adjourned, the mayor rose frouf his chair, wishing 
 to be understood that he no longer spoke as a magistrate acti 
 otiiciallv, and suggested whether it would not be more advisabl 
 under all the circumstances, to go to Albany and apply to a jud 
 of the supreme court ; which was approved of by the counsel, a 
 the motion discontinued. An application was accordingly made I 
 lus honour Chief Justice Spencer, at Albany, who, as the report 
 has been informed, recommended the deferring of the application I 
 bis arrival in the city of New-York, where he was to hold the S 
 tings before May Term, on the first Monday of April.* 
 
 The prisoner was accordingly brought before him, at his Chai 
 bers in Broadway, on Monday the third day of April, whe 
 
 *The following abstract of the several statutes conferring the povet 
 of Judges of the Supreme Court of the State of Next'- York on in 
 rior magistrates, may throw light upon the ubove discussion, a 
 be useful to the students of our laws. 
 
 Hu the “ act concerning the Supreme Court," (1 P. /,. 518. § 11.) ltecorden 
 New -York, Albany and Hudson, are equally empowered with Justices ofthe Supre 
 Court, lo act in all cases, both civil and criminal, in like manlier as the said Justi 
 may do out of coui t. 
 
 jty Section 1C —Any Judge of any court of Common Pleas, and any Mayor, n 
 take affidavits to be read in the Supreme Court. 
 
 By Section 13.—A Judge of the Court of Common Pleas mar take recognixanc j 
 
 bail. 
 
 !?v an “act to prevent unjust imprisonment, by securing the benefit of the tori I 
 habeas corpus (I It. T,. 354. see u 2 ) the First Judge of the Court of Conm j 
 Pleas of am county of this state, has power, w ith the corsent of the Attorney ( j 
 neral or District A ttorney, to let to bail as a Judge of the Supreme Court might ] 
 and for such purpose, to grant writs of habeas corpus. 
 
 The “act concerning the Courts of Common 1‘teas and General Sessions of I 
 Peace,in the several counties of this State,” (1 It L. 14.. sec. 14.) contains j 
 like provision in the same terms. 
 
 Uv the “ret to vest certain powers in certain Judges of the Courts of Comr.' 
 Pleas, and for other purposes,” (4 L JV*. 1". c 173 see. 1 ) any Judge of the Co;' 
 of Common" Pleas in this stale of the degree of Counsellor, may exercise all the pej 
 ers of commissioners appointed pursuant to the act to appoint commissioners to r >J 
 form certain duties of Judges of the Supreme Court, passed 25th February, IS,; 
 and all other duties which the Commissioners, by any subsequent act, are autbori l 
 :o perform. * 
 
 The act to appoint Commissioners to perform certain duties of Judges of'j 
 Supreme Court, (1 Jl T. 32'..) being the act referred to in the foregoing scctioii 
 i In' a" of 1818, authorizes the appointment of a Commissioner lor each of the Co J 
 ties ot Oneida and Ontario, who are authorized to perform all the duties of a Judpfl 
 tli.’Supreme Court which, according lo the practice ol the said Court, the Jmlll 
 thereof may perform out of Court in all cases, both civil and criminal ; to allow « " 
 of habeas corpus, and certiorari ; to execute the absconding and absent debtors’ J 
 and tiie insolvent act, in like manner as the Judges ofthe Supreme Court might a! * 
 execute tlie sume. 
 
187 
 
 Messrs. Munro, Hoffman, Ogden, and W. Price, appeared on be¬ 
 half of the prisoner, and Messrs. Wells, Gridin and Blake, on be¬ 
 half of the people ; and his honour the Chief Justice delivered the 
 following opinion : 
 
 CHIEF JUSTICE SPENCER’S OPINION. 
 
 The People 
 vs. 
 
 Robert M. Goodwin. 
 
 Habeas Corpus—at Chambers in the 
 Citij of New- York. 
 
 The return to the writ sets forth two causes of detention ; hut it 
 has been admitted by the district attorney, that the prisoner is to be 
 considered as detained only on a charge of manslaughter. It ap¬ 
 pears that he has been indicted lor that offence, and has been 
 brought to trial in the Sessions in this city : that the trial was con¬ 
 tinued for five days, and that the jury, after having had the cause 
 under consideration for about twenty-two hours, wer<? finally dis¬ 
 charged by the court, the jury declaring it as their unanimous 
 opinion, that there was no expectation of their being able to agree. 
 It appears that after the jury had been out about seventeen hours, 
 they came into court, and by their foreman, declared themselves 
 agreed on their verdict, and that they found the prisoner guilty, and 
 recommended him to the mercy of the court; but on being polled, 
 the third juror dissented from the verdict. 
 
 The district attorney avowed his readiness to proceed to trial 
 again in the Sessions, within two days ; but stated, that if it was the 
 wish of the prisoner, he would remove the indictment and proceed¬ 
 ings by certiorari into the Supreme Court. The prisoner’s coun¬ 
 sel declared their desire that the certiorari should issue ; and also 
 stated it to be their intention to insist before that court, that the 
 prisoner could not be tried again for the same offence, the jury hav¬ 
 ing been discharged without their consent. These are all the facts 
 to guide my discretion in determining the question whether the 
 prisoner is entitled to be bailed or not. And in deciding this ques¬ 
 tion, little or no aid can be derived from the course of proceedings 
 in this state ; the point has never been discussed or decided at the 
 bar, and the proceedings before the judges at Chambers, have never 
 been collected or preserved. 
 
 With regard to the power of a Judge of the Supreme Court, to 
 allow the writ of habeas corpus ad subjiciendum in cases not within 
 ji the 31 st Charles 2d, ch 2d. (of which our statute is nearly a tran¬ 
 script) and to bail ; the counsel for the prosecution distinctly ad¬ 
 mitted the existence of such a power. But I am unwilling it should 
 rest on admission—the opinion of the twelve judges in England, on 
 questions propounded to them by the House of Lords in 1757, is the 
 best and highest evidence of this power. And as I understand their 
 opinions, which will be found in Gwiliim’s Bacon, Title Habeas 
 Corpus, they were unanimously of opinion, that since the statute of 
 31 Charles 2d, ch. 2d, and as the law then stood upon the practice 
 of the King’s Bench, writs of habeas corpus ad subjiciendum might 
 
Issue m all cases by a flat from a judge oil the King’s Bench, *e- I 
 turn able before himself. Seven of the judges are explicit on the j 
 question, that t he power of a judge of the King’s Bench, in award- I 
 ing the writ, extends to all cases not within the statute. The doubts 1 
 which have been entertained, whether, on the return of the writ, 1 
 the judge was not bound by the return, so that the facts anil cir- * 
 cuinst inces of the case were not examinable beyond the return, 
 have been removed by the act amending the habeas corpus act, pass- > 
 ed the £lst of \pril, 1818 ; and it cannot now be doubted that a 
 judge in vacation may examine into the facts contained in the re- 1 
 turn, and into the cause of the confinement and restraint. 
 
 Manslaughter is a felony, and it is punishable, on conviction, by | 
 imprisonment in the state prison for a term not less than three years, I 
 nor more than fourteen years. And it has been argued, that it being 
 a felony thus punishable, it is a case in which the party accused | 
 ought not to be hailed, unless it he shown that there is a strong pre- " 
 sumption of innocence. 1 am snii-fied that the prisoner cannot de- ; 
 aiand it as a matter of right, to be admitted to bail, and that it is a 
 question resting iu the sound legal discretion of the judge awarding 
 the. writ. 
 
 Hawkins, b. 2d, ch. 15. § 40 and 80, lay's down the law to be, j 
 that if it stands indifferent whether a person charged with a felony 1 
 Is guilty or not, he ought to be bailed ; and that even in capital cases', i 
 Where there is any circumstance to induce the court to suppose he 
 may be innocent, they will bail— and that the judges will in general 
 exercise the power of bailing in favour of a prisoner in every case 
 not capital, though they will not exercise it when the pri-oner is 
 notoriously guilty, by his own confession or otherwise, without the , 
 existence of some special causes to induce it. 
 
 There are several cases in which persons charged with man¬ 
 slaughter have been bailed, where there has been no presumption ■ 
 of innocence. Thus in Rex v. Dalton, (2 Str. 911) the defendant 
 was committed on a coroner’s inquest for manslaughter, and was 
 brought before Lord Raymond, chief justice, on habeas corpus, at 
 his chambers. He held that if the depositions show that the offence i 
 was murder, he would not bail ; but if it amounted only to man¬ 
 slaughter. he would bail; and he bailed the prisoner. So also in 
 Rex v. Magrath, 2 Sir. 1242, the defendant was committed for 
 manslaughter, and it appearing to be no more upon the depositions 
 taken before the coroner, the Court of King’s Bench admitted him 
 to bail. In Lord Mohnn's case, which was before Lord Holt, at 
 Chambers, (1 Salk. 104) lie held, that if a man he found guilty of 
 murder by the coroner's inquest, he is sometimes bailed, because 
 the coroner proceeds upon depositions taken in writing, which may 1 
 be looked into ; otherwise, if a man be found guilty of murder by 
 a grand jury, then the court cannot take notice of their evidence, 
 which they are bound to conceal ; and it appears by the cases be¬ 
 fore cited from Strange, that Lord A'lobun was bailed first by IlolR 
 and afterwards by the Lords, after an indictment for murder. 
 
180 
 
 !n some later cases, bail has been refused when the offence was a 
 felony, punishable with transportation ; as in 2d D. and E. 77, and 
 3d East, 157, and there is therefore no fixed or certain rule in cases 
 of felony, each particular case depending on its peculiar circum¬ 
 stances. The object and end of imprisonment before trial and con¬ 
 viction, is to secure the forthcoming of a person charged with the 
 commission of a crime ; and it is never intended as any part of the 
 punishment; for until the guilt of the party be legally ascertained, 
 there is no ground for punishment, and it would be cruel and un¬ 
 just to inflict it. The laws of every free government estimate per¬ 
 sonal liberty as of the most sacred character, and it ought not to be 
 violated or abridged before trial; but in cases where there are 
 strong presumptions of guilt, and although the nature and kind of 
 punishment which awaits those whose guilt is legally established, 
 does not alter the turpitude of the offence, it must enter into the 
 consideration of the question of bail ; for if the punishment would 
 be a pecuniary infliction, then bail in more than the amount of the 
 probable fine, answers every purpose : if the punishment be death 
 or corporal imprisonment, a consciousness of guilt would probably 
 induce to flight, and an evasion of the punishment ; and in admitting 
 to bail, therefore, regard must be had to the probable guilt of the 
 party, and the nature of the punishment denounced. 
 
 It appears to me, that from the facts before me, the conclusion is 
 inevitable, that it is quite doubtful whether the prisoner is guilty ; 
 and I think it stands indifferent whether he is so or not. After a 
 long and laborious trial, the jury have not been able to agree, and 
 what proportion of them were for convicting, and what for acquitting, 
 has not been shown. No inference can be drawn from the fact that 
 the foreman pronounced a verdict which was dissented from by the 
 third juror, that all the other jurors were for convicting the prison¬ 
 er ; and it may well be that a bare majority of the jury agreed to 
 the verdict as announced by the foreman ; and I perceive that all 
 the jurors viewed the case as of a mitigated character, by their re¬ 
 commendation of the prisoner to mercy. I must presume that the 
 jurors were impartial, and that their final disagreement proceeded 
 irom a conscientious difference in opinion as to the prisoner’s guilt; 
 and 1 am therefore bound to conclude, that the prisoner may be in¬ 
 nocent of the offence. In such a case, as I understand the law, he 
 is entitled to be bailed, if he can give it in an amount, and by persons 
 of sufficient ability, affording a reasonable expectation, from the im¬ 
 pending forfeiture of the recognizance, that he will appear and 
 stand trial. 
 
 It was urged that the adoption of such a principle would, in its 
 operation, induce to the bailing of such persons as were either af¬ 
 fluent themselves, or had rich and influential triends ; whilst it would 
 leave those who vvere poor and friendless in prison. Such may be 
 the consequence, but it by no means proves the impropriety of the 
 procedure. The rule is adapted to all who can comply with its 
 terms ; and it is the misfortune of those who cannot give the neces¬ 
 sary security. |n arrests for debt, bail must be given, or imprison- 
 
190 
 
 ment is the consequence : and, although we may regret the inahiii 
 ty to give it, we nevertheless approve of the law requiring security 
 1 abstain from expressing arty opinion on the suggestion of tin 
 prisoner’s counsel, that he is not liable to be tried again for th< 
 offence imputed to him ; that question will hereafter be consideret 
 by the Supreme Court. 
 
 On the whole, I think this a case in which it would be a discree 
 and sound exercise of the powers with which 1 am invested to ad mi: 
 the prisoner to bail ; himself in $20,000, and four sureties of com 
 petent ability, in $5000 each, for his appearance at the next Maj 
 term of the Supreme Court. 
 
 The bail was accordingly given, and the prisoner was discharged 
 
 The prisoner was recognized to appear in the Supreme Couri 
 on the first Monday of May, himself in $20,000, and four sureties, 
 to wit. Commodore Chauncey, Commodore Evans, Thomas Morris, 
 Esq. Marshal of the Southern District of New-York, and Edward 
 Price, Esq. in $5000 each, 
 
 MONDAY, MAY 1, 1820. 
 
 Supreme Court. 
 
 This being the first day of the term of the Supreme Court, the 
 defendant appeared there pursuant to his recognizance. It was 
 understood that his counsel meant to move for his discharge, and 
 those for the prosecution to move for his trial at the bar of the 
 <sourt. 
 
 Mr. Van Wyck, district attorney, moved for a day to bring on the 
 argument, it being proposed to bring it on upon a case to be made. 
 It appeared that there were other cases in which indictments had 
 been removed into this court by certiorari. 
 
 His honour the Chief Justice wished the counsel to consider 
 
 whether this court had not power to send this cause to be tried at 
 the Oyer and Terminer, by the judge who was to hold the sittings, 
 as the public expectation would be much disappointed if a great 
 part of the term should be taken up with a trial at the bar. And if 
 this could be done, that the papers need not be filed till new recog¬ 
 nizance be taken to appear at the Oyer and Terminer. 
 
 The court appointed Monday the eighth inst. for the hearing of 
 the motion. 
 
 
191 
 
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INDEX. 
 
 assault. 
 
 A mere assault* unless with a weapon 
 ely to cause death, will not justify or 
 Meuse, homicide, 175. 
 
 Where the party assailed could have 
 japed, the killing though nnpremedita- 
 vl, will he manslaughter, 175. 
 jS'ott assault demesne .—Why it excu- 
 in civil actions, and not on indiet- 
 rnts, 171. 
 
 IvVhat amounts to an assault, 13. 
 
 When it is unlawful to return the blow, 
 
 1U 
 
 AVERMENT. 
 
 —Material must he strictly proved on 
 i ictment for homicide, 121. 
 
 That Prisoner gave the first assault is a 
 rteria! averment, 121. 
 
 \n allegation of a stab or thrust not 
 s ported by proof of another kind of 
 d th, 122. 
 
 n the “ fury of his mind,” how far it 
 inlies voluntary-action, 127. 
 
 'he words, “ strike or stab,” how far 
 n:erial, 124. 
 
 fercussit how far a word of art and 
 n.erial, 122. 
 ee Evidence. 
 
 How far it controuls the laws or con¬ 
 stitutions of the States, 10, 11. 19 24. 27. 
 
 Tenth and eleventh articles of amend¬ 
 ments considered, 19. 
 
 CORONER. 
 
 Inquisition of—defined, 9. 
 
 Where his inquisition to be returned, 
 4. 8. 20. 
 
 How far considered as an indictment, 
 4, 5. 8. 32. 
 
 How far the Court of Sessions can no¬ 
 tice it when wrongfully returned there, 
 or otherwise, 27 31, 32, 33. 
 
 Whether a defendant can be tried on 
 it, 27. 
 
 Whether the Court where it is returna¬ 
 ble, is bound to proceed on it, 110. 
 
 Course of proceeding where there is 
 both an inquisition and indictment, 10. 18. 
 20. 22. 32. 44. 
 
 Judges will look into the depositions 
 with a view to bail, 12. 20. 23. 
 
 The reasons thereof, 22. 
 
 DOUBTS. 
 
 —In criminal cases, how far they should 
 acquit. 111. 122. 
 
 BAIL, 
 listory of, 13. 
 
 'n a charge of manslaughter not de 
 ,?/ \ 7. 13. 29. 
 
 Iliscretion of the Judge, 14, 15. 21, 22. 
 2-29. 
 
 loney not a substitute for the person, 
 1417 See Chief Justice’s opinion, 187. 
 
 — Authorized by statute, where the 
 eli-ge is for felony, 27. 
 
 lower to bail, incident to that of try- 
 inpr discharging, 29, 30. 
 
 elay of the prosecutor, when it enti- 
 dc he prisoner to be bailed, 30 to 33. 
 
 lisagreementofthejury on being poll- 
 edifter a verdict, with recommendation 
 to jercy, delivered by the foreman, but 
 no-ecorded—how far it may- influence 
 tli liscretion of the judge ou application 
 to til, 182. 
 
 e habeas corpus. 
 
 ii 
 
 me 
 
 St: 
 
 CONSTITUTION, 
 bether the fifth article of atnend- 
 s to the constitution of the United 
 is excludes trials on inquisitions, 4. 
 
 EVIDENCE. 
 
 In homicide, the manner of the death 
 to be proved as laid, 98. 121, 122. 162. 
 
 An allegation of striking, slabbing, &c. 
 must be proved by a stroke or blow of 
 some kind. Ibid. 
 
 Of a slab with a sword, supported by 
 proof of prisoner’s having used a sword 
 unlawfully, and death occasioned by it, 
 though not in prisoner’s hand at the mo¬ 
 ment of the death, 178, 179. 
 
 Whether proof of previous malice ex¬ 
 trinsic, and not, part of the res ffesta, is 
 admissible on indictment for manslaugh¬ 
 ter, 100—1, 2, 3. 
 
 Positive testimony of few witnesses, 
 outweighs negative of many, 167. 
 
 Witnesses, to relate facts, not give opi¬ 
 nions, 94. 
 
 Physicians examined as experts, their 
 opinions only regarded when within the 
 scope of professional skill, 60. 73. 96. 
 
 bee Averment. 
 
 HABE\S CORPUS. 
 
 When a writ is marked, “by the 
 statute,” whether those words can be re- 
 
194 
 
 INDEX. 
 
 jected, and the judge consider it as issued 
 at common law, 185. 
 
 Whether the Mayor of New-York has 
 the power given bv statute to Judges of 
 Common Pleas Ibid. 
 
 Can he on habeas corpus, at common 
 law, in vacation, bail one committed lor 
 felony. Ibid 
 
 Can the Mayor, Recorder, or other 
 Magistrate, issue a habeas corpus at com¬ 
 mon law, returnable before any other 
 Magistrate. Ibid. 
 
 When District Attorney to have no¬ 
 tice, 186. 
 
 See Bail. 
 
 HOMICIDE. 
 
 When justifiable—when excusable, 109, 
 170. 
 
 Law of—same as before April 19th, 
 1775, and as at common law, 178. 
 
 The killing once proved, defendant 
 must show his justification or excuse, 44, 
 103. I t5. 120. 148. 
 
 If the act be malum in se, murder or 
 manslaughter, according to the circum¬ 
 stances, 105. 
 
 If the prisoner wasengagaged in a mere 
 trespass, manslaughter, lfin a felonious 
 act, murder. Ibid. 
 
 If w anton, without design, manslaugh¬ 
 ter. Ibid. 
 
 If from preconceived malice or revenge 
 in cold blood, murder, 106. 
 
 If from sudden transport of passion, or 
 heat of blood, or upon sudden combat— 
 manslaughter, 106 . 
 
 If with intent to beat, but not kill, mur¬ 
 der, or manslaughter, according to cir¬ 
 cumstances, 106. 
 
 Party using an unlawful w eapon, does 
 it at his peril, ibid 
 
 Accident no defence, if the slayer was 
 acting in violation of the law. 148. 
 
 Chance-medley, or se defendendo, only 
 available when there is great bodily fear, 
 172. 
 
 And the party should, w here possible, 
 retreat, 172—3. 
 
 Where the combating is other than in 
 self-defence, the killing not excusable, 
 but held manslaughter, 110. 
 
 Self-defence, first law of nature. Ibid. 
 
 Where it justifies. Ibid. 
 
 How far there can be crime without 
 latent. Ibid. 
 
 Upon provocation by mere words, al¬ 
 ways murder, 45. 
 
 See Provocation and A ssault. 
 
 -Justifiable by command, or per¬ 
 mission of the law, 169. 
 
 By permission for the advancement of 
 justice—as to prevent escape, quell a 
 riot, or prevent certain causes not other¬ 
 wise to he prevented, 169. 
 
 Excusable—with or without the will of 
 the slayer, 170. 
 
 If involuntary and by misadventur 
 the act must he lawful, 170. 
 
 Misadventure always6'ipposes the pa 
 tv engaged in a lawful act. Where it 
 unlawful, tliough the death be uninte 
 tional and accidental, it is manslauglitc 
 Necessity no excuse, where it is of il 
 party’s own creating, 171. 
 
 INDICTMENT. 
 
 Defined, 8. 
 
 Rule of proceeding where there is : 
 inquisition of murder, and indictment t 
 manslaughter, 10. 
 
 — Must stale the manner of the death,11 
 
 See Averment. 
 
 INQUISITION. 
 
 See Coroner. 
 
 JUSTIFIABLE. 
 
 See Homicide. 
 
 JURY AND JURORS. 
 
 A ballot once draw n cannot be retur 
 
 ed, 36. 
 
 Challenges to the polls for favour 
 practice relative to, from 36 to 41. 
 
 Jurors allowed to communicate 
 emergencies with family orclerks in op 
 court, by consent of parties, 86. 89. 98 
 
 In criminal cases, judges of law a 
 fact, 168. 
 
 Not allowed a copy of minutes of t 
 testimony 180. 
 
 Discharged after a trial of five days, a 
 being out 22 hours, it being within a fi 
 minutes of the legal termination of t 
 Session, 182. 
 
 MERGER OF A CRIME. 
 
 Whether manslaughter is merged 
 the charge of murder, 2.f. 
 
 MANSLAUGHTER. 
 
 -Definition of—must be looked 
 
 iu the common law, 168, 169. 
 
 -Defined, 81.110.125.12S.16U 
 
 -Nature and extent of, 15. 21. 
 
 - Punishment of, 7. 
 
 -How punished here and in Ei 
 
 land, 80. 127. 
 
 Argument therefrom, and observata 
 thereon, 80. 168. 
 
 - On indictment of—-jury may 6 
 
 manslaughter, though the evidence sin 
 it murder, 44. 
 
 Whether the killing must be volur 
 ry, 81. HO. 1.4. 
 
 That it need not, 161. 164. 
 
 —Is either voluntary, upon sudden lit. 
 or involuntary, but in commission of i 
 unlawful act, 174. 
 
 Whether it must he wilful as well 
 unlawful, 124. 140. 
 
 English law thereon, applied and • 
 served upon, 195. 127, 128, 129. 
 
 If the slayer was acting unlawfully 1 
 is manslaughter,though unintentional, 1* 
 
INDEX. 
 
 195 
 
 OYER AND TERMINER. 
 
 Its jurisdiction, 18. 23, 26. 
 
 PRESUMPTION. 
 
 Of innocence, when and how applied, 
 26. 30. 
 
 PRISONER. 
 
 Charged with felony, should be pie- 
 sent at all proceedings in his cause, 3. 
 
 PROVOCATION. 
 
 —What will extenuate to manslaughter, 
 45. 
 
 Killing upon mere words always mur¬ 
 der, 45. 
 
 Will not excuse if sought for, 107. 131. 
 
 Contemptuous insulting gestures, with¬ 
 out an assault, will not excuse, 45. 
 
 Nor a challenge, though accompanied 
 with taunts, and the occasion sudden, 
 106. 
 
 Pulling by the nose will not reduce it 
 below manslaughter, 45. 
 
 See Assault. 
 
 SESSIONS, COURT OF. 
 
 Its power to bail for manslaughter, 4. 
 
 Where there is also an inquisition for 
 wiurder. Ibid. 
 
 Its jurisdiction, 5. 
 
 Its power to bail in general, whence 
 derived, 6. 
 
 STATUTES CITED. 
 
 Act concerning the Supreme Court, 
 186. 
 
 -Declaring the powers of the Courts 
 
 of General Sessions of the Peace, 4. 
 
 -Concerning the Mayors’ Courts 
 
 in Albany and Hudson : and the Mayor’s 
 Court and General Sessions of the Peace 
 in New-York, 6. 
 
 -Declaring the punishment of cer¬ 
 tain crimes, 7. 
 
 -To prevent unjust imprisonment, 
 
 by securing the benefit of the writ of 
 habeas corpus, 11 13. 186. 
 
 ^* tat 6 Edw. 1. ch! 'q ( <3.16. IS. 26. 
 
 Bill of Rights of New-York, 19. 27. 
 
 Act concerning the Courts of Common 
 Pleas and General Sessions of the Peace, 
 in the several counties of this state, 186. 
 
 -To vest certain powers in certain 
 
 Judges of the Courts of Common Pleas, 
 186. 
 
 - To appoint certain commission¬ 
 ers to perform the duties of Judges of the 
 Supreme Court, 186. 
 
 ERRATA. 
 
 Page 5, line 22, for “26th,” read 24th of December. 
 
 Page 26, line 12 from the bottom, for “ Hunt,™ read Keat. 
 
 Page 40, at the bottom, strike out the part repeated. 
 
 Page 121, line 32, after “ Goodwin,” insert, upon James Stough¬ 
 ton. 
 
 Ibid, line 2 from the bottom, for “ indisputable,” read indispen¬ 
 sable. 
 
 The following incident was omitted. (See p. 181.) 
 
 Before the jury retired to reconsider their verdict, the prisoner, 
 in person, requested permission of the Court to have his examina¬ 
 tion tajren before the Mayor previous to his commitment, read, as he 
 hoped it would explain the mystery that hung over the transaction.. 
 But the Court said it was too late now, and moreover, that it could 
 not have been read on the trial, unless the prosecutor had introdu¬ 
 ced it. 
 

T v i & 1 fi. ---1 
 
 
 L99146 
 
 
 Vol.21 
 
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