A REPORT
of the
w m, a & a»
of
Michael fy Martin TooJiey,
ON AN INDICTMENT
"For t\ie MTJEDEll of
JAMES W. GADSDEN, ESQ.
Before the Honorable ABRAHAM NOTT,
One of the Associate Justices of South-Carolina;
AT THE COURT OF SESSIONS, HELD IN CHARLESTON,
FOR JANUARY TERM, 1819;
containing the whole of the testimony and the speeches
at length of william lance, benjamin f. hunt, and
william crafts, jun. esquires, on behalf of the
accused, and robert y. hayne, esq. attorney-
general, on the part of the state J"
together with the judge's charge,
8fC. #C.
BY MMITIN STBOBEL,
A MEMBER OF THE CHARLESTON BAR.
CHARLESTON:
Printed by A. E Miller, 101, Queen-Sired.
—■©•—
March, 1819.
PREFACE.
MDEUTY and accuracy are the principal, if not the sole requisites of a coin
piler. The publisher of the following interesting Trial, lays claim to no higher
commendation. As a Reporter, the accuracy with which he has transcribed what
wassaidon the occasion, may be tested, by the approbation of the Gentlemen
•f the Bar, who were engaged ; but he has to remark to the reader, that in the
long and detailed examination of witnesses, which (indeed necessarily) took
place, he has taken the liberty of compressing, not the mm but the items of the
testimony given. Repetition and tediousness were unavoidable in the trial of
so important a case ; but repetition and tedious*: ess may be avoided in a Report
intended for the gratification and use of the Public, and more particularly of
the Bar.
He has taken no such liberty with the Speeches of the Counsel, or the Judge's
Charge ; they remain an entire and fcir transcript from the original, except so
far as not quoting at length a great body of law referred to by the various Coun-
sel, simply contenting himself with a reference to the books. The principles
find cases quoted, and the points of law illustrated during the progress of this
p-eat Trial, were he conceived of a nature and bearing, too important to be
suffered to pass away, without a more permanent remembrance, than the memo,
ries of the auditors afforded. This, first incited the Publisher to undertake this
Work, to catch the passing period and gwe the words
" A local habitation and a name."
Buthe has also been particularly urged to accomplish his design, by the great
and general interest, excited in the public mind, and by the hope that this hum-
We effort may not only gratify the curiosity, and instruct the mind of the reader*
but may be of such service to the cause of law and justice and the public mo-
rals, as to induce a continuance of similar efforts, transeat in exemplum. The
principles of law and evidence exist, but lay comparatively hid and obscured;,
until brought into life and action, by the application of them to existing cases.
This Report, therefore, is submitted to the Public, and the Gentlemen of the
Bar, with every wish that it may prove an interesting and useful record of the
application of these principles as regard Murder and Manslaughter, in the case
of tin State against MaRTIs aad Michael Toohey.
THE PWBLISHER.
REPORT^ &c.
On Tuesday the 26th day of January 1819—Michael Toohey
and Martin Toohey, were put to their trial, at the Court of Ses-
iions held at Charleston, before ins Honor Judge Nott, and the
Mowing jury:—
CHARLES CLEAPOR—Foreman.
JOHN MYER,
HENRY CLIFFORD,
ALEXANDER SOLOMONS,
JOHN P. YOUNG,
JOHN JONES,
BENJAMIN MARSDEN,
STEPHEN PYE,
J. L. LAPENNE, Jun.
JAMES STILLMAN,
BURLINGHAM RUDD,
MALACHI MURPHEY,
On the following indictment:—
State of South-Carolina,}
Charleston District. $
At a Court of General Sessions begun to be-holden in and for the
District of Charleston, at Charleston, in the District and State
iforesaid, on Monday the 18th day of January, in the year of our
Lord 1819.
1st. Count.—The Jurors of and for the District of Charleston in
the State of South Carolina aforesaid, that is to say—John Cordes
Prioleau, Robert Mitchell Ludlow, John G. Wurdeman, John
L. Pezant, Thomas John Smith, Daniel James Ravenel, Henry
Lazarus, Winborn Lawton, William Thomyso%Marcus Laza-
tus, Nicholas Cobia, Peter Murphy. frfi'uiac8. sh«fgl£r, John
2
Kugley and William Wood—upon their oaths, present, that Mi*
chael Toohey and Martin Toohey, now and late of Charles-
ton, in the District and State aforesaid, not having the fear of God
before their eyes ; but being moved, and seduced by the instigation
of the devil, on the Twenty-first day of December. in the year of our
Lord one thousand, eight hundred and eighteen, with force and
arms, at Charleston, in the District and State aforesaid, in and upon
one James W. Gadsden, in the peace of God, and this State, then
and there being, feloniously, wilfully and of their malice aforethought
did make an assault, and that the said Michael Toohey with a cery
tain bayonet, of the value of one shilling, which he the said Michael
Toohey in his right hand, then and there, had and held, the said
James W. Gadsden, in and upon the left side of the belly below the
navel, of htm the said James W Gadsden, then and there felonious-
ly, wilfully and of his malice (f orethought, did strike and thrust,
giving to the said James W. Gadsden, then and, there with the
bayonet aforesaid, in and upon the left side of the belly below the
navel aforesaid, of him the said James W. Gadsden one mortal
wound ; of the breadth of one inch, and of thtf depth of six inches,
of which, said mortal wound, the said James W: Gadsden, on the
twenty-first day of December (foresaid, in the year last aforesaid,
at Charleston in the District and State aforesaid, then and there
instantly died; and that the aforesaid Martin Toohey, then and
there feloniously, wilfully and of his malice aforethought was present,
aiding, helping and abetting, comforting, assisting and maintaining
the said Michael Toohey, the felony and murder aforesaid, in man-
ner and form aforesaid to do and commit; and so the jurors afore-
said, upon their oaths aforesaid, do say, that the said Michael Too-
hey and Martin Toohey, the said James W. Gadsden, then and
there, in manner and form aforesaid, feloniously, wilfully and of
their malice aforethought, did kilt and murder, against the peace
and dignity of the same State aforesaid.
2nd. Count.—And the Jurors aforesaid, upon their oaths afore-
said, do further present, that MartinToohey and Michael Toohey
now and late of Charleston, in the District and State aforesaid, on
the twenty-first day of-December, in the year of our Lord one
thousand eight hundred and eighteen ; with force ancl arms at
Charleston, in the District and State aforesaid, in and upon James
W. Gadsden, in the peace of God, and of this State, then and there
being, feloniously, wilfully and of their malice aforethought, did
make an assault, and that the said Martin Toohey with a certain
bayonet of the value of one shilling, which the said Martin Toohey
in his right hand, then and there had and, held the said James W.
Gadsden, in and upon the left side of the belly below the navel, of
him the said James W. Gadsden, then and there wilfully,feloniously
and of his malice aforethought, did strike and thrust, giving to the
said James W. Gadsden then and there with, the bayonet aforesaid,
in and upon the left side of the belly below the navel ajoresaid, of
him the said James W. Gadsden, one mortal wound of the breadth
of one inch, and of the depth of six inches, of which said mortal
wound, the said James W. Gadsden on the day and year last afore-
3
mid, at Charleston in the District and State aforesaid, then ana
there instantly died; and that the aforesaid Michael Toohe z, tken
and there, feloniously, wilfully and, of his malice aforethought, was
present, aiding, helping, and abetting, comforting, assisting and
maintaining the said Martin Toohey the felony and murder afore-
said, in manner and form aforesaid to do and commit, and so the
jurors aforesaid, upon thair oaths aforesaid, do say that the sail t
Martin Toohey and Michael Toohey, the said James W.
Gadsden, then and there in manner and form last aforesaid, feloni-
ously, wilfully and of their malice aforethought, did kill and murder,
against the peace and dignity of the same State aforesaid.
The 3d. Count—Charges Michael Toohey with giving a
mortal wound u upon the back, between the 11th aud 12th ribs, on
the right of the spine," of the deceased ; and Martin Toohey, as
aiding and abetting.
4th Count—Is the same as the last, only charging Martin Too-
hey as principal, and Michael Toohey as aiding and abetting.
5th Count—Is the same as the first, only charging the wound to
have been inflicted with a sword.
6th Count—Is the same as the second, charging the wound to
have been inflicted by a sword.
7th Count—Charges both with inflicting the wounds, with
bayonets.
Upon the Jurors being called to the book to be sworn, William
Crafts, jun. Esq. one of the Counsel for the Prisoners, moved that
each Juror should be sworn upon his voir dire, whether he had
formed an opinion on the case against the prisoners; or had expres-
"sed one unfavourable to them, and in supporstofthe principle quoted
Burr's case—This was objected to by the Attorney General, as con-
trary to the decision made by the Constitutional Court in the case
of the State, vs. Baldwin.* His Honor the Judge said, that although
he was one who differed from the other Judges in that decision, and
that although his opinion was still in favour of the proposition, yet the
decision having been made, he did not feel himself at liberty to de-
pait from it; and over-ruled the motion.
The Attorney General, Robert Y. Hayne, Esq. then opened the
case on behalf of the prosecution.
May it please your Honor I
Never, Gentlemen of the Jury, have I been placed in a more awful
situation, than that in which I now stand. My official career, short
* This was a case of Negro Stealing tried at Georgetown, before Judge Giimke
in April term 1811—in which the prisoners was convicted, and an appeal made
to the Constitutional Court for January term 1813 The case resolved itself into
the single question, " Whether a juror being examined or his voir dire may be
asked and required to answer, whether he has formed any opinion of the inno-
cence or guilt of the prisoner whom he is called to try, or any question which
goes to shew his bias or partiality."—And alter full argument by the counsel for
the prisoner and the Attorney General for the State, the question was decided
in the negative and the appeal dismissed ; Judges :Nott and Brevard dissenting.
4
as it has been,f has more than once compelled me to bring to this
bar, men accused of heinous offences; but I am called upon, for the
jirst time, to bring to the view of a Court and Jury the circumstances
of a " foul and unnatural murder." One of our most valuable
citizens, mild and amiable in his conduct and deportment, pure in
his morals, and of the most spotless reputation, has fallen a victim
to the dagger of the assasin! cut off in the prime of life, in the midst
of his usefulness; he has been rudely torn from the embraces of an
amiable wife, and numerous and affectionate children, and consign-
ed to the silent tomb.—The tears of his family and friends, have em-
balmed his memory, and the sympathies of the whole community
attest his worth. To bring to the bar of public justice, and expose
to merited punishment the perpetrators of such a cruel and bloody
deed, is the duty imposed upon me by the State. I feel most sen-
sibly the weight of this awful responsibility. It is true gentlemen,
we cannot recal the spirit of the deceased to earth, nor fill up the
melancholy chasm created by his fall! I trust he is in another and
better world; and from " the bosom of his Father and his God," looks
down upon the unhappy prisoners at the bar, with no other feelings
than those of compassion ; but by inflicting exemplary punishment
on the guilty, we may deter others from the commission of similar
crimes.
The prisoners at the bar, will have to answer before another and
higher tribunal, (which cannot err) for the moral guilt they have
incurred. Here, we regard not the criminals, but the crime ! Ex-
ample is the only legitimate object of human punishment; the pas-
sions and evil propensities of men, would soon cover the earth with
crime, and deluge the world in the blood of innocence, if it were not
for the terrible sanctions, by which human laws restrain the commis-
sion of crimes. If he who steeps his hands in his brother's blood,
could be permitted to go unpunished, and to live! murder would
walk abroad in the face of day, and blood and destruction would be-
come familiar to our sight.
I do not make these remarks gentlemen, to inflame your passions
or to excite any indignation against the prisoners at the bar. It is
against the crime alone, I would excite your abhorrence. The pris-
oners may possibly be guiltless of the blood of the deceased, and
such is the humanity of our laws, that every man must be deemed
innocent, until he shall be clearly proven guilty.
I shall now proceed, gentlemen, to give you a definition of the
crime.—I shall explain to you so much of the law, as may be involv-
ed in this case ; and then give a detail of such facts as I am instruct-
ed will appear in evidence. In 3d, Chitty's Crim. Law, page 724,
Murder is defined to be, " When a man of sound memory and of
i( the age of discretion, killeth any reasonable creature, in rerum
" natura, and under the king's peace, by malice prepense or afore-
thought, either expressed by the party or implied by law." The
following circumstances then must concur:—The agent must be of
t This gentleman was appointed Attorney General in December 1818.—And
this was the first Court he attended as such.
5
sound mind ; that is, he must not be an infant below the years of
discretion ; he must not be a madman or lunatic. But drunkenness
is no excuse, for it is laid down in the same authority, p. 725, that
*' The temporary absence of reason produced by drunkenness, is not
" in any case, a legal excuse, for the acts which it may occasion or
'' excite, but as Lord Coke observes, ' a drunkard who is voluntari-
i( us daemon,' hath no privilege thereby, but what hurt or ill soever
11 he doth, his drunkenness doth aggravate it." " But the law of
u England (says Blackstone*) considering how easy it is to coun-
fi terfeit this excuse, and how weak an excuse it is (though real)
" will not suffer any man to privilege one crime by another."
Secondly—There ma t be an actual killing, for it is laidj down
that u To constitute murder there must be an actual killing. But
" it is not necessary that death should be caused by direct violence :
u it is sufficient if the act done, apparently endangers life, and even*
" tually proves fatal."f On this point it is not necessary to make a
remark.
Thirdly—The party killed must be a reasonable creature, in the
king's peace.
u By a reasonable creature," is to be understood a human being,
one of the human race ; in which is included a lunatic or an idiot.
" In the king's peace," bv this is meant all persons under the
government and protection of the state; all^persons indeed, except
an alien enemy in the heat of battle. t
Fourthly—There must be malice either express or implied.
As this is the point on which the present case will probably turn,
I will bring the subject fully to your view and explain the distinction
made in the books, between murder and manslaughter. Malice
does not consist, only in particular animosity to an individual, but it
is said to be an evil design in general. It may be also either ex-
press or implied—In 3d Chitty, page 717, it is laid down that " it
" is this circumstance which distinguishes murder front every other
" description of homicide, especially from manslaughter, which
" comes nearest to it, both in guilt and punishment. For the legal
sense of this term is not confined to a particular animosity to the
" deceased, but extends to an evil design in general; a wicked and
" corrupt motive, an intention to do evil, the event of which is
" fatal;" and in 1st Hawkins, page 12!, it is also laid down, " that
u any formed design of doing mischief, may be called malice; and
therefore that not such killing only as proceeds from premeditated
" hatred or revenge against the person killed, but also in many
" other cases, such as is accompanied with those circumstances, that
" shew the heart to be perversely wicked, is adjudged to be of
" malice prepense, and consequently murder." In 4th Blackstone,
" page 198, it is said—t( malice is not so properly spite or malevo -
,{ lence to the deceased in particular, as any evil design in general:
" the dictate of a wicked, depraved and malignant heart ' un dispell;
* 4th Com. p. 26.
t 3d. Chitty'sCrim Lawvp. 725.
6
At Hon a fair# urt, mal rfiose"—or as Foster, page 25 J, still more
clearly expresses it," I believe most, if not all the cases^which in our
" hooks are ranged under the head of implied malice, will, if care-
" fully adverted to, be found to turn upon this single point,- that the
" fact hath been attended with such circumstances, as carry i&
" them the plain indications of an heart regardless of social duty,
" and fatally bent'upon mischief." We may then infer, gentlemen,
malice from any circumstance, which shew the heart to be regard-
less of social dutv and fatally, bent upon mischief.
Now gentlemen, all killing is deemed in law to be murder, unless
the contrary be shewn—" but here it must be observed," (says Chit-
tv. pa ^730) " that every homicide- is prima facie murder, and
will be considered as such, until justified or .excused, and there-
"■ fore, wheh this fact is once established, it rests on the defendant
" to make out that he is justified, excused, or his guilt reduced to
" manslaughter, by some adequate provocation j for all killing is
"taken to be both felonious and malicious, until the contrary is
slmwn in evidence."
Malice then, constitutes the difference between murder and man*
slaughter—the latter is defined by Blackstone, in 4th Com. p. 191-
" to he the unlawful killing of another without malice, either ex-
" press or implied which may be either voluntarily upon a sudden
" heat, or involuntarily, but in the commission of some unlawful
" act." When death ensues, (says 3d Chitty, p. 730t) Evidently from
"heat of blood, on some grievous provocation, the law indulgent
" to the weakness and infirmity of our nature, reduces the offence
" to man slaughter."
On this I would observe—
First,—That to make the offence manslaughter, it must evidently
proceed from heat.of blood; the fury must be such as deprives the
offender of all self-command ; for if he knew what he, was about,
and had, such self command, as to be able to restrain himself, it
would be murder—and this doctrine is to be found in 1st Haw p. 123.
" That whenever it appears from the whole circumstances of the
case, that he who kills another on a sudden quarrel, was master
" of his temper at the time, he is guilty of murder.*
Secondly—To make the offence, manslaughter, it must not only
be proved to have arisen frojn heat of blood, but the " provocation
must be grievous because the law will not presume, that a slight
provocatiop, such as words of abuse or actual assault, could excite
such a fury of mind ; and if it could, it would shew a state of mind,*
regardless of social duty, the possessor of which, the safety of man-
kind would require, to be put out of existence.
Foster in his Crown Lawf lays it down, " that words of re-
" prouch, how grievous soever, are not a provocation sufficient to
" free the party killing, from the guilt of murder. Nor are inde-
" cent provoking actions or gestures, expressive of contempt or re-
" proach, without an assault upon the person. This rule will, I con-
^ reive govern every case where the party killing upon such
* Tomtin's Digest Crim. Law, page 74.
t Page 290.
7 \
"f provocation/ maketh me (if a deadly-weapirn, or otherwise ma«r»
" fiesteth an intention to kill; or to do somegreat bodily harm^Mmt,
w if he had given •the other a box dn the ear, or had struck hint
« with a stick, or other weapon not Mkelij to kill, and had tndwki*
ti iy 0nd against his intention, killed, it had been hut manslaughter,
« the-difference between the cases is plainly this:—-<Iir The former
a the malitia*, the wicked Vindictive dispoMtiorq already tbentionad,
« evidently appeareth-t-dn thn Matter it ds as rvirteufly wanting^
« The party in the first transport of his pasfcion mtenrlbd jcr* has*
a tjse> I'ojJ a pi«ce of ■itTsolence* whi» h few ispfrifK can hear**r In this
*t <>ase the* benignity of the law ictcttposetlf it* favor "of humph*
H frailty-+r*in the other^ its justice ^egtjrtkih and pui'sii«hiih<e»apA
u parcfifc malignity of the heart* ,
d And it ought to hei remembered, that in^dl ofbeffcases of Ho*
'* miride upon slight provocation, if it be reasonably Voilec ted, from1
«• the weapon made use pfr*ov < from any "othef eircumstantc, that
t( the party -intended tn -kill, or to do'some great bodily harm ;
** such homicide wilt hetifurder* The "mischief doheis irreftfnf. it*
i( and the outrage bab^dderecl aa flowing fa thet* from brutal rage,
" or diabolical fnaiigtsity tthan Creirt human-, frailty y end it is to
^ human frailty, amid** that aldne^he law igduigeth in every case
'* of felonious homicide.
(*' A ndi^. hath been adjudged, 1st. Hawk in p t2S,that ■even wppn
a s sudden quarrel^ if a mail be so fay provoked by anyfiPMe wor#
" or gestures of another^ as to make a push at hint w tfch a sword,'
'< Or strike at him, with any other sucii waaporfiws manifestly en-
l* dangers' his Iife%efofg the other's sword is drawn; and thereupon
** a fight ensued «tid he who made «u« h assault, kill the other* he is*
guilty of murder j becausey lb at by 'assaulting clie »th,ef' insdeh
u an outrageous manner; -without giving him an opportunity to
¥ defend himself* he shewed that he intended not fir fight with him*
"* but to kill himy which •violent revenge is no more ejcfis^'tl fey
fe Bucii 4 flight provocation, than if there had been ttotwal filL?*
Thirdly—I would further remark^ g<?ntlerr)uR, tftaii where ihcpm*
ty killing was armed and tM other itnarmedf. if the u caji/mtKid Was
likely to produce "death, if ope party retreat® and the btWrqd.vxHe,*
him, it is murder* 'And £ would add, tip** if % Jmanpttfisun*
my in acratel manner, and beats another inhumanly. ton any vfivau:4
stance- of crtielty •attend the transaction, it as murders find fen, stptptTfi
of this principle I Will quote $tj Chittyl* Crimu L.w,m 0,*
" if one With his sword drawn make a pass at another, whvvw*tewof<C
« is undrawn, and a combat ensues, if the forowhe kiUect it wife
« only bemanslaughter in the* latter, but if the latter fall ifiwiE b^
" murder in the farmer, for by making the pass before his adwfSttiW W
" sword, was drawn he evinced an intenthfti rot to fight but p> dfestnn
" him. tAnd where a man, npon-»occa shin, ©f 8»hho tvnyry wnrtlV
" threw a bottlejat the head of hisopponent, and immediately tfire-w,
" and when his adversary returned the • bottle stabbedhiinJi ttliiw
(<> hoi den to be murder id hhn, because he drew previous t« ithe1
u first aggression;** and the same authority continued—u But i«-
<4 case wil1 previous provocation avail, if it wui sought fbt by -lt« art
8
^ of the slayer to afford him a pretence for gratifying his own malice)
" Nor will it alter the case, that blows previously had been given,
" if they evidently left traces of a deadly revenge, which seeks an
fi opportunity of indulging itself by provoking a second contest,
*{ to cover and excuse a deliberate attempt on the life of its object,"
and in p. 732, he concludes, fi On the whole, then, though the appli-
" cation of the rule may be attended with some difficulty, we may
u conclude, that if the provocation be light; if the resentment be in-
u adequate to its cause; if dangerous instruments be used under
" pretence of correction, even where correction is lawful, or be the
" provocation what it might, if time for reflection intervened—if
" previous malice can be shewn—if there be traces of deadly ani-
" mosity, from whatever cause, the offence of homicide is murder ;
" but if the cause be but sudden passion, over-stepping its bounds,
u correction well intended though too severe, a sudden fury, blind,
" though fatal, the law reduces the crime to manslaughter." And
in ] st Haw. p. 126, it is said " That he who, upon a sudden provoca-
u tion, executeth his revenge in such a cruel manner, as sheweth a
if cruel and deliberate intent to do mischief, is guilty of murder, if
u death ensue—as where the keeper of a park, finding a boy steal-
" ing wood, tied him to a horse's tail and beat him, whereupon the
" horse ran away and killed him."
Fourthly—If several persons unite to commit a riot, assault of
other unlmoful act, and a person is killed, it is murder, in all.
This doctrine is to be found—1st. Hawkins, p. 127," That where a
" killing ensues in the execution of an unlawful action, where the
principle design was only to commit a bare breach of the peace not
" even intended against the person slain—yet is the offence murder,
" for it seems clear that regularly where divers persons resolve gen--
" erally to resist all opposers in the commission of any breach of
** the peace, and to execute it in such a manner as naturally tends to
ei raise tumults and affrays, as by committing a violent disseisin,
iK with great numbers of people, hunting in a park, &c. in so doing
u happen to kill a man, they are all guilty of murder."*
I will now, gentlemen, advert to the law on the subject of princi-
pals and accessaries, fn murder, when several are concerned, they
are all principals—of these there are two kinds—a principal in th«
first degree, is he who actually gave the 'blow, a principal in the se-
cond degree is he who is present aiding and abetting the fact—and
was formerly denominated an accessary at the fact, and he could not
be put upon his trial until the principal or perpetrator of the crime
Was first convicted. i( This distinction says, 3d Chitty p. 287, has been
a long since exploded, and now the stroke is constructively given by
" all who consent, and who are present at its infliction, and they
lX may be put upon their trial, though the actual slayer is neither
* outlawed nor found guilty,"—There are however three requisites
necessary to constitute a principal in the second degree—first, he
must be actually or constructivel y present-—and this " presence need
K not be an actual standing within sight or hearing of the fact; but
* Tomlin's Digest Criminal Law, p. 78,
9
u an active co-operation in the crime at the time of its commission,
" as where one stands to keep watch at a convenient distance,
" while another commits a felony. So, if several persons come to a
" house with intent to commit an affray, and one be killed, while
t( the rest are engaged in riotous and illegal proceedings, though
" they are dispersed in different rooms, all will be principals in the
" murder."—1st Chitty, page 256.
Secondly—They must be aiding and abetting ; for mere presence
is not enough to implicate them thus deeply in the guilt.—Thus, if
two persons are fighting, and a third comes by and looks on, he is
not guilty of homicide in any degree; but if several come with in-
tent to do mischief, though only one does it, all the rest are princi-
pals in the second degree. And where many are engaged in the
perpetration of a criminal act, and one of them is guilty of murder
in the pursuit of their common object, all who were engaged in
the riot or disorder, are principals in the second degree.—1st Chitty,
page 258.
Thirdly—But to constitute this offence, the same felonious intent
must exist in all the parties concern "1. that is, such circumstances
must exist in the transaction, as in law constitutes murder. For'it
is laid down in the same author, page 258, that to constitute a
" principal in the second degree; there must be not only a pre-
" sence, and an aiding and abetting, but a participation in the fel-
u onions design ; or, at least, the offence must be within the com-
•' pass of the original intention." And, gentlemen, all the blows
are deemed to be given by each of the parties ; and if " an indict-
" ment be framed against one for murder, as the actual perpetrator,
i( and another for aiding and assisting, as principal in the second
" degree, the latter may, it seems, be convicted, though the for-
iC mer be acquitted ; and if A. be indicted as having given the
" mortal stroke, and B. and C. as present, aiding and assisting; and
" upon the evidence it appears that B. gave the stroke, and A. and
u C. were only aiding and assisting, the evidence will maintain the
" indictment, and judgment be given against all the defendants ; for
" it is only a circumstantial variance, as, in law, the mortal blow is
H the act of all that are present, aiding and abetting—so the in-
u dictment may charge all the parties as principals in the first de-
" gree; and it was held "by all the Judges of England, that an
te indictment against three, for the single act of shooting at the
" prosecutor under the black act, was sufficient."—1st. Chitty, p.
260.—Tomlins, page 78.
Having gone through the law, I will now proceed to state the
facts; which I am instructed 1 will be able to establish.—I will prove
that the late Mr. James W. Gadsden on the night of the 21st of
December last, a little before 9 o'clock was peaceably passing up.
Market-street on his way home, when lie was assaulted without the
smallest provocation, by the prisoners of the bar. I will prove to
vou, that Mr. Gadsden was unarmed, without even a stick, and en-
tirely alone. They attacked the unfortunate deceased with the
murderous weapons charged in the indictment, and while he was re-
treating and using every effort to escape from their grasp, they in-
B
10
flicted the mortal wound, < f which he almost instantly died. This
is the out line of the testimony, the particulars of v. hich «rd ■ the
other circumstances, you will learn from the lips of the witnesses.
SAMUEL HYAMS, Sworn.
Examined by the Attorney-General.
On the 21st of December last, Michael Toohey and his wife, came
to my house early in the evening—after sitting about half an hour,
and conversing a little he went away, leaving his wife; he went over
to Mr. Galloway's, where there was a meeting of the IrishVolunteers,
of which Company, Michael Toohey is a member; he v.as in uni-
form. About 8 o'clock, Mrs. Toohey sent over to call him ; the
servant returned, and in about ten minutes afterwards, some one
tapped at the window—this was the usual manner in which Michael
Toohey called his wife when returning home ; for it was customary
for him to take hiswife along with him when he went to the meetings
of the company, and to leave her at my house, until he w as ready
to return home. I cannot say whether it was Michael Toohey or
not who tapped at the window in this instance—however, the mo-
ment the knock was heard, Mrs. Toohey got up and went out.—
The moment 1 discovered that Mrs Toohey w as gone, I observed,
" is Mrs. Toohey gone, and not bid us good night ?"—these words
were scarcely out of my mouth, before I heard the cry of murder.
Being somewhat accustomed to hear little tumults or noise occasi-
onally in that street, it being the thoroughfare for the market, I
did not instantly notice it, until Mrs. Hyams came from up stairs,
and said, you are all sitting down here so quietly, do you not hear
murder cried in thestreet? Mr. Solomon Moses, jun. who was in the
house with me, went out and I followed him—I passed through the
gateway into the street, where the noise came from.
Q—From w hat window did you hear this tap ?
A.—It was from a window in the passage-way from the gate in
Meeting-street, I am possitive it was there, for 1 could not have heard
it if it had been in Market-street; my house is situated directly on
the corner of Market and Meeting-streets. When I got to the cor-
ner of Market street, some one hallowed, it is Gadsden, for God sake
take hold of him,—I immediately took hold of him. I called to him,
Gadsden w hat's the matter ? he answered me, in these precise words;
" I am wounded, and stabbed, I am a dead man A—I immediately
called for some of my people,, to get candles, and held him against
the house, for I found him rather heavy, he sunk nearly down upon
his knees.—I had him taken into my house immediately, and laid
upon a sofa, I opened his waistcoat, felt his bosom, and plainly per-
ceived he was dead ; he gave a sigh before he expired. Ipeiceived a
blow on his temple near the left eye, as soon as he died, this wound
sunk.
Q.—What time elapsed between the tap and the cry of murder?
A—1 do not think a minute could have elapsed, though it was
impossible for me to have marked the precise time.
Q.—IIow is your house situated ?
11
A.—Mv house is situated at the S. W. corner of Market and
Meeting-streets, it is a double house, and built immediately on both
streets ; when the front doors are open, I have an entrance both
from Meeting and Market-streets ; the passage is through my store
from Market-street. There is ;) partition running in the direction
of Market-street, which divides the store from the sitting-room, when
the doors are shut, the only entrance is through the gate in Meeting-
street—which it about thirty feet from the corner.
A. G. Proceed.—When I first saw Mr. Gadsden, it appeared to
me that be reeled against a post; I am not positive as to this fact.—
Solomon Moses was there before me, he was with Mr. Gadsden when
I went up ; he left Mr. Gadsden with me, and crossed over the street.
Q.—Where was the meeting of the Irish Volunteers held that
night ?
A.—At Galloway's on the opposite corner, of Market andMeet
ing-street, from my house.
When I received Mr Gadsden in my arms, I thought that he
was only stunned, for it was very dark ; there were but few people
in the street at that time—after taking the deceased in the house,
it became immediately crowded by numbers of the Irish Volunteers,
and other citizens.
Q —What dress had Michael Toohey on, when he first came to
your house ?
A.—lie was dressed in uniform, and had on likewise a close
bodied greatcoat.
Q.— Had he any arms about him ?
A.—He had a cross belt on, under his great coat.
Q.—Was it a military belt ?
A.—It was such as is usually worn by the soldiers. I believe it
was white—It was under bis surtout.
Q.—Had he a bayonet on ?
A.—1 cannot tell ; his surtout having been buttoned below.
Q.—When he was at your house did he unbutton his surtout ?
y/.—I did not observe whether he opened his surtout coat or not;
he might have done so without my seeing it.
Q.—What time did he come to your house with his wife ?
A.—It was about six o'clock in the evening.
Q.—D.d you see him any more that night after he left your
house ?
A.—I did not.
Cross Examined by Benjamin Faneuil Hunt, Esq.
Q.—When Michael Toohey came to your house, did you observe
any difference from the usual evenness of his temper ?
A.—I did not.
Q.—Is not his wife in a situation, to require his particular atten-
tion ?
A.—She is in an advanced state of pregnancy.
Q.—Was not .Vir. Mark Marks at your house when Michael Too-
hey entered with his wife ; and had there not been some dispute,
between Marks and Tookey, that morning.
12
A.—There was some little difference about a child of Mr.
Marks'; Mr. Marks was in my house, at the time Michael Toohey
and bis wife came; after some little interval, Mr. Toohey stepped
up to Marks and said to him—I believe you are the gentleman wh<v
called upon me this afternoon ; lam come down to make a hand-
some apology to you for my conduct—I conceive you are a gentle-
man, and an apology is due to you, by me. Mrs. Marks the mother
of the child, then said, " I don't think you ought to have troubled
my child," but you ought to have complained to me, if the child
had, beheaved ill—Michael Toohey then said, he intended to have
made an apology, but as the lady had taken it up so warmly, he de-
clined. Mr. Marks, and Michael Toohey set about 15 minutes after
this, and conversed together, in very good humour.—-When Michael
Toohey rose from his seat, and said, Marks I think you are a gen-
tleman, and parted —As Michael Toohey went out, he said, Mr.
Hyams, I leave my wife in your care. Solomon Moses said, laugh-
ing—won't you leave her in miue—he replied no, in Mr. Hyams'—
and then went out.
Q,—When they parted, did Marks and Toohey shake hands ?
A.—I did not, observe.
Q.—Do you conceive that they parted in good fellowship or not ?
A.—My impression is from what passed, that they both parted on
good terms; I do not think that Michael had any grudge towards
Mr. Marks, they parted with a smile.
Q.—Do you know what the child had done to the prisoner?
Jf.—I do not.
Q.—When Michael Toohey went to the meeting, did Mrs. Too-
hey remain at your house ?
A.—She remained the whole time he was at the meeting, convers-
ing in very good humour. She sent over once for her husband, up-
on his not coming she wished to send a second time, when Mrs. Hy-
ams prevented her, by saying, that Mr. Galloway did not like strange
servants to be going in the room where there was company. She
did not send a second time.
Q —Did Marks and his wife remain at your house all this time ?
A —They did not leave the house, unless they went out when this
thing occured.
Q.—Who was about the corner when you went out ?
A—1 could not see till the light came, which was immediately on
my calling out ; the night was so dark, it was impossible to distin-
guidi any one at any distance.
Q.—At what hour was this ?
A.—It was near 9 o'clock.
Q—When you took hold of the deceased, did he say how he
came by the wounds ?
A.—lie did not, all he said was, " I am wounded and stabbed, I
" am w dead man." Several citizens came up, a number in uniform
came into the house afterwards.
Q,—Did you see any persons in uniform previous to your taking
the deceased into the house ?
t'.W-i did not see any in uniform, until Mr. Gadsden was carried in.
13
Q.—After you bad taken in the deceased and laid him on the so-
fa, di i you hear any suspicions expressed ?
A.—I did not hear any one named as being suspected, until Solp-
man Moses, jun. came in, and said, how is he; I toid him he was
dead—he pointed to a man in uniform, who was standing by the
sofa, and said you were there ? He replied I was there. He was re-
quested to stay—he said if I am wanted, my name is M'Dowall, and
asked forta pencil to write his address. After this Mr. John Horlbeck
came in, and the Coroner was sent for; Dr. Whitridge stripped him
and discovered the wounds—as soon as the Coroner came, the room
was filled ; and a Jury of Inquest formed.
Q.—Did Michael Toohey appear to be intoxicated when he came
to your house ^
A.—I do ne t think he did.
Q.—When Solomon Moses said to Mr. M'Dowall, " you were
" there,'* wh-t did he say ?
1.—He simply gave his name and asked for a pencil to write his
address, and went off.—When the evidence before the Inquest was
nearly closed he leturned, which was about two hours.
Q —How was Mr. M'Dowall dressed, when you first saw him ?
A.—He had on the uniform of the Irish Volunteers—he had on a
cross belt, but cannot say if he had a bayonet in the sheath.
Q.—Was he sober ?
A.—He appeared to be so.—There was a general cry that the
Toohey's had done it, but I do not know who made the first charge;
it appeared to be g. neral.
O How was M'Dowall dressed when he returned and gave evi-
d^..ce before the Coroner?
A.—" d'd observe particularly, but he was not in uniform.
Q.—P'd he r any thing before he went home, of his being hurt ?
M.—He did not—it was not until he returned to give testimony
before the Coroner; that he said he was hurt—some doubted bis
being wounded, until he sheved the wound.
Q.—What time elapsed between the cry of murder, and the ver-
diet of the Jury of Inquest?
A.—About three hours—the cry of murder was about 9 o'clock,
and the verdict was given in about 12 o'clock.—The prisoners were
arrested after this ; the Lieutenant of the company, in the early part
of the evening, said he would go and take them, but returned saying,
he could get none to help him.
Q.—Are you acquainted with the prisoners at the bar ?
A.—I am not acquainted with Martin Toohey—Michael Toohey
I have known ever since he has been in this country, which is about
10 years.
Q.—What is his general character ?
A.—As far as my knowledge of him goes, he was a man of up-
l ight character, honest industrious, and inoffensive.
Q.—What is his conduct, as a husband and father ?
A.—I do not know, never visited at his house ; was always in the
habit of speaking to him when we met, and enquired after each
others families.—He has always behaved himself as a peaceable
14
citizen,; I never heard any thing against him previous to this un-
fortunate transaction.
Examined by the Attorney General, in reply.
Q.—Did you observe any difference in the behaviour of Michael
Toohey towards Marks before, and after the time, when he was a-
bout making th$ apology ?
A—I did not.
Q.—Did he or not observe to Mr. Marks that if he had done the
like, he would have served him in the same manner ?
A.—He did.
Q.—What did he observe to Mrs Marks.
A.—He observed to Mrs. Marks, " now Madam I am come to
" make a handsome apology, but since you have taken it up so
^ warmly, I will make noneor words to that effect.
Q.— And did he not depart without making an apology ?
A.—He did.—He said something after this, I do not exactly re-
collect—Mrs. Marks said she did not like to have her child's ears
pulled; darks said something, but I do not remember precisely what
it was—Michael Toohey said, " if it was the queen of England's
child, he would do it."
Q.— Did he at any time say, what the child had done ?
A.—I never learned what the child had done to him.
Qc—When Solomon Moses asked M'Dowell if he was not there,
was it not in the nature of a mere enquiry.
A.—I think it was.
Q.—Did either of the prisoners come into your house, among the
other citizens ?
A.—Neither of them came.
Q —Have you not generally heard that Michael Toohey was a
violent man ?
A.—Only since this transaction.
Q.—Have you ever heard generally any thing as to his temper?
A.—I have never heard any thing good or bad, as to his temper;
only that he was a jovial man—I never visited him at his house—
I saw him often in the day.
Q—Have you had an opportunity of forming a judgment as to
his character ?
A.—1 have not—only that during the first period of my acquaint-
ance was constantly in the habit of seeing him at vendue.
Q.—Do you know any thing of his private character
A.—I do not—he was in the habit of visiting my house—perhaps
once a month ; used frequently to stop at my door, passing through
Market-street, and enquire after my family, as he would be going af-
ter his business.
SOLOMON MOSES, jun. Sworn.
Examined by the Attorney-General.
I was at the house of Mr. Hyams on the evening of the 21st of
December last; about 6o'clock, or a little after, Michael Toohey
15
and his wife entered the room—Mrs. Toohey was invited to sit down,
when Mr. Toohey turned round to Mr. Marks, who was sitting in
the room; and said to him, I presume you are the gentleman who
railed upon me this afternoon, to which Marks replied, that he was.
Toohey then said, I was a little irritated at the time, but your con-
duct hras been so much that of a gentleman, as I see you are here ; I
will give you an explanation. I then heard Mr. or Mrs Marks
ask him what the child had done, and Mrs. Marks further ob-
served, if my child had acted wrong towards you, had you behaved
like a gentleman, you would have come to me, as the mother of the
child; and I would have given you satisfaction.—Toohey replied, if
it had been the queen of England's child, I would have served it in
the same manner I have done your's; had the father done to me
what the child has, I would have treated him in the same way.—
Something further transpired, which I do not recollect; but Mrs.
Marks said, " I do not allow any one to correct a child of mine,
without telling me what it has done," or words to that efifect.
Toohey then said to her, Madam I intended to have made a
prettv apology, but as you have taken it so much to heart,I decline;
and made none. The conversation then ceased—Mr. Toohey re-
muined some minutes, then told his wife he would go to the meeting,
and that he would leave her under the protection of flyams.
I said to him, won't you leave her under my protection—he said
no, under Ilyams'.—Nothing more occurred, and he went out—Mrs.
Toohey remained in the house during the whole of his absence;
about one hour and a half or two hours after, some one knock-
ed at the window, or on the boards near the window, by the
gate ; I cannot say if it was at the window in the street, or in
the gateway. I believe the shutters to all the windows were
shut—I turned round and missed Mrs. Toohey, on enquiring
for her, some one of the ladies present, said that her husband
had called for her and that she was that moment gone. Not
more than a minute or two could have elapsed from the knocking at
the window, before Mrs. Hyams came down stairs, and said, *' don't
" you hear the the cry of murder in the street," on hearing this, I
ran to the door, thence into the gateway, and there myself heard the
cry of murder; I made my way into Meeting-street, and on com-
ing to the corner, perceived the cry to be in Market-street.—After I
got round the corner, I saw some one staggering towards the mid-
die of the street; heard him say, " murder, I am dead —and ap-
parently in the act of falling—he was coming towards meeting-street,
and probably may have been distant from 4 to 6 yards. I discovered
him on getting a few steps round the corner—I run, on hearing the
word murder ! for I knew it was the voice of Mr. Gadsden ; and o»
coming up to him, said Mr. Gadsden, is it you ?—he was then in the
act of falling; hearing my voice he threw himself into my arms, and
exclaimed murder ! I am dead. On finding him rather heavy, I en-
deavoured to support him by the house ; and in about half a minute
Ilyams came up, when I got him to the house, I said to him Mr.
Gadsden who has hurt you, when he turned round, pointed to some
16
persons at a short distance, and said " he has assaulted me."—1
then left him in the arms of Hyams, and went towards the persons
at whom he pointed. On arriving at the spot, I saw Michael Too-
hey with his back to the fence; there was some person beside him in
uniform, between the place I found the deceased, and where Mi-
chael Toohey stood.
Q.—Was that person the prisoner, Martin Toohey ?
A.—I do not know if it was.
Q.—Do you not now recognize him ?
A.—I do not—the person however was in uniform.
On the other side of Michael Toohey I discovered his wife, with
®ne arm round his neck—In front of Michael Toohey, about one or
two feet, I saw a small man standing in uniform; a little further from
him, saw Mr. Sutdiffe.—The little man, I afterwards discovered to
have been Mr. M'Dowall.—I heard Michael Toohey say, damn ras-
cal, or God damn rascal; and apparently wanted to make towards
the place where I left Mr. Gadsden, his wife was restraining him, as
well as the person between him and JY" r. Gadsden; not the little
man who was in front. 1 turned round then and said to the little
inan, there must be some mistake; not knowing at this time that
Mr. Gadsden was wounded.—I observed further, that Mr. Toohey
and Mr- Gadsden, were both peaceable men, and Toohey appears
to be in liquor.—Mr. M'Dowall asked me whether I had seen all—
My reply was I have seen enough. I advised Mr. Toohey to go
home with his wife, he took no notice however of what I said, but
seemed much agitated ; he made considerable efforts to go towards
Mr. Gadsden—I left them standing together and went back to
Mr. Hyams, saw a number of persons standing around the deceased,
who was then drawing his last gasp.
Some one in the room asked who had done it, I then related the
circumstance of what' had passed, and particularly about the small
man; and my inducement to go to the spot where the prisoner stood
when one of the byestanders asked me if I knew who that small man
was—I replied that I did not know him, but would be able to recog-
nize him.—During this conversation, three or four men in uniform,
came into' the room, among them I discovered the small man we
were speaking about; I addressed him, saying, you are the person
who was present when I came up; he answered that he was—he
walked about the room for a minute or two, when he came up
again to me, and asked if I had pencil and paper about me, that he
wished to give me his address, as he could not stay; I told him I had
none; he said he could be found at Adams & Son, or Williams & Son,
I cannot say which, if he should be wanted, as he knew something
about it.—I toid him he had better stop, as probably he might be
wanted—at that time some of the relations of Mr. Gadsden coming
in, created some little stir, so that I could not hear his reply. A
number of the Irish Volunteers came in.
Q.—Did not Mr. M'Dowall return ?
A.—He returned in about two hours afterwards, and gave testi-
Atony before the Coroner.
17
Q.—Did he Hot come in, after the testimony had closed before
the Coroner ?
A—I believe he came in after all the testimony was given; I
think he was last; either he or Cavenaugh was last.
Q.—When you went up to the spot where the prisoners were
standing, did you not say Michael Toohey was making violent efforts
to go towards the deceased; and that he appeared very much
irritated ?
A.—He was so—he called out damn rascal, or god damn rascal;
I do not think, he called out more than once.
Q.—When was it that Mr. M'Dowall asked you, if you had see*
all ?
A.—It was not until I suggested that there was some mistake.
Q.—What did you mean, by saying there must be some mistake?
A.—Seeing Toohey making away from his wife,"and in a violent
rage: I thought he had been in the affray, and thinking he was a
very peaceable man, I thought the affray had arisen through mis-
take; for I then had no idea that Mr. Gadsden was wounded.
Cross Examined by Benjamin Faneuil Hunt, Esq.
Q.—Did Michael Toohey part in good nature with Marks, when
he left Hyams' house—did he appear to bear any malice, either to-
wards Marks or any other person in the house?
A.—It did not appear to me as if there was any thing like malice
or ill blood between them, when they parted.
Q.—After Michael Toohey left the house, was there any conver-
sation relative to the dispute, amongst those who remained ?
A.—Not a word passed on the subject—all was harmony and so-
oiability.
Q.—Did not Michael Toohey wish to avoid any altercation with
Mrs. Marks ?
A.—It appeared so to me—he said that he came to make ant
apology to Mr. Marks, but as the lady had taken it so much to heart,
he would not.
Q.—Was the affair of the child of any consequence ?
A.—It did not appear so to me.
Q.—Do you know what this affair was about ?
A.—I do not—the child, it seems, complained to its mother, that
Michael Toohey had pulled its ears in the morning—I am pretty
certain it was all forgotten by Mr. and Mrs. Marks.
Q.—Do you recollect when Mrs. Toohey went away ?
A.—I do not—I missed her out of the room, and upon enquiry,
found she was gone; this was a minute or two, before the cry of
murder in the street.
Q.—Do you suppose from the time of the rap on the window, and
Mrs. Hyams' hearing the alarm of murder, that Michael Toohey and
his wife could have got round the corner ?
A.—I think they could.
Q-—Was there any person near Mr. Gadsden, when you got
round the corner ?
C
18
A.—There was no person near him, he was staggering towards
the street—discovered no person within twenty feet of him.
Q.—Who was nearest to him ?
A.—The persons who were nearest, were those by the fence.
Q.— Could vou discern their countenances ?
A. I could not at any distance, for the night was very dark.
Q.—What was the position of the persons, who were by the
fence ?
A.—The first, (whom I did not know,) was standing behind Mi-
chael Toohey.
Q.— Was that person in any attitude of offence ?
A.— He was not.— He with the assistance of Mrs. Toohey was
preventing Michael Toohey from going to the spot, where Mr.
Gadsden was.
Q.—Was Michael Toohey dressed the same as when at Hyams?
A.—He was.
Q.—How was he dressed ?
A.—He had on a grey surtout-coat—and a military belt across—
under his surtout.
Q.—Was his surtout coat buttoned up ?
A.—It was not—or I could not have seen the belt.
Q.—Did you see any bayonet in his hand ?
A.—1 did not see any weapon that night.
Q.—Had Michael Toohey any bayonet in his sheath ?
A.—I cannot tell if he had.
Q.—Was not the small man near Michael Toohey, in uniform ?
A.--He was in uniform, but had neither bayonet nor belt on ; I
am confident he had no hat on, but not so certain as to the belt.
Q.—Had he any coat on, besides his uniform ?
A.—He had on no other, but his uniform coat; and that was
unbuttoned and open.
Q.—When Michael Toohey was exerting himself to go towards
Mr. Gadsden, had he any weapon in his band ?
A.—He had nothing in his hand, he was waving it empty.
Q.—You said he was agitated—do you not believe that agitation
to have arisen from intoxication ?
A.—It did not appear to me so—he was evidently, a little intoxi-
cated in the'early part of the evening, when I first saw him ; but I
could not tell when I last saw him, whether he was so or not. He
was un- doubtedly in a great passion.
Q.—What did you say when you went up to him ?
A.—I said nothing to him, but " why do you not go home;"—of
which he took no not're. Ilis wife'was urging him also—she had
one of her arms around his neck, entreating him to go.
Q.—How did the little man you speak of, appear when you came
up ? '
A.—He appeared somewhat agitated.—He did not explain to me,
what had transpired.
Q.—When he enquired of you, if you had seen the w hole, was it
voluntary on his part ?
19
A.—Perfectly so—It was after I suggested that the affray must
have arisen through mistake; that he made the enquiry.
Q.—Where did you leave him ?
A.—I left him on the spot.
Q.—When you saw him again, did you immediately know him ?
A.—The moment he entered the house, I recognized him.
Q.—You spoke of a person between Michael Toohey and the de-
ceased—how was he dressed ?
A.—In uniform.
Q.—What was the situation and appearance of the person who
was with Michael Toohey ?
A.—He was dressed in uniform, and had his side to the fence.
Q.—Was he intoxicated ?
A.—I did not notice.
Q.—Was Mr. M'Dowall in uniform, when he gave his testimony
before the Coroner ?
A.—He was not.
Q.—Did he say any thing of his being wounded, when you first
Saw him in the evening, or afterwards ?
A.—He said nothing of his being wounded, until he came to give
his evidence.
Q—Are you acquainted with Michael Toohey ?
A.—T am.
Q-—Have you ever heard of his being a quarrelsome person ?*
A.—Never, until this affair, did I conceive of him otherwise than
as a peaceable man.
Q.-—What is the general character of Michael Toohey ?
A.—He has always, as far as I know, borne the character of an
upright industrious man—I have known him for nine years, four of
them intimately.
Q—How often have you been in the habit of seeing him ?
A.—Three or four times a week.
Q.—During this time, have you not always found him a peace-
able harmless man ?
A.—I have uniformly found him so.
Examined by the Attorney-General, in reply.
Q.—When you saw Mr. Gadsden, had he any weapon in his
hand ?
A.—He had nothing in his hands.
Q.—When you saw Mr. M'Dowall, had he on a belt ?
A.—He had on no belt that I saw.
Q.—Have you never heard that Michael Toohey was a man of
violent temper ?
A.—Not before—but since this transaction, I have heard some
such character of him.
Q.—Did you visit in his family ?
A.—Not much—I am not intimate in his house.
Q.—Have you ever heard any thing against his domestic character?
A.—Only since this affair.
20
DANIEL M'DOWALL, Sworn.
Examined by the Attorney-General.
I attended a meeting of the Irish Volunteers, of which I am a
member, at Galloway's, on the evening of the 21st of December,
last.—The prisoners are also members; after being some time in the
room, I had occasion to leave it; and went down stairs in the
street, without any hat on. I there heard the cry of murder!
issuing from the opposite side of Market-street, about a perch from
Galloway's door; I immediately went across, as fast as possible—
when I saw Michael Toohey and his wife, and Martin Toohey. I
know them both—one of them, which I believe to be Michael, had
hold of a gentleman by the collar; I went to Michael to request him
to go home with his wife, and while in the act of speaking to him,
Martin Toohey stabbed me with a bayonet; the wound was a little one
side of the navel.—I felt the blow, but did not cdnceive myself cut
at that time—the blow stunned me very much. By this lime, the
gentleman became disengaged from them, and was retreating, when
they followed and struck him—I saw them both strike, Martin Too-
hey had a drawn bayonet in his hand, at the time.—The gentleman
was endeavouring to get away, when one of them, whom I believe
to have been Michael, had him hold by the coHar; I heard the gen-
tleman say, that he had never offended them—and that he did not
know them. I did not see the gentleman make any resistance.—
After they both struck him, he got away, and was retreating towards
Meeting-street, when Martin Toohey pursued him, with a drawn
bayonet.
Q.—Had Michael Toohey any bayonet in his hand ?
A.—He had not—I do not think he could have had any bayonet
in his hand without my seeing it.—I lost sight of the gentleman af-
ter this. Immediately after this, I saw Mr. Moses coming up from
the corner of Meeting-street.
Q.—What was the distance from Meeting-street, to where you
saw the scuffle ?
A.—1 think about fifteen or twenty yards.
Q.—Did you see the prisoners at the meeting ?
A—I do not recollect seeing Martin Toohey, but Michael was
there.
Q.—Had he a bayonet ?
A.—I did not observe, as he sat some distance from me, and the
company was large.
Q.—Did he appear to be intoxicated ?
A.—lie did not appear so to me.
Q.—When you went up to him in the street and advised him t®
go home, did he say any thing to you ?
A.—He made me no answer.
Q.—At what time did you receive your wound ?
A.—At the time I was persuading Michael to go home with his
wife. After Moses came up, I went across to Galloways, and men-
tioned to him what had happened ; in a few minutes after, intelli-
21
gence came over, that a man was murdered. I immediat ely told it
to the gentlemen there, and told Captain Gordon it would be right
to break the meeting up.
I remained in the room a few minutes, then went over to Mr.
Hyams, and there saw the deceased lying on a sofa. During which,
Mr. Moses stepped up and asked me, if I was not the person he had
spoken to in the street—I replied to him I was, I asked him if he had
seen how it had happened, but do not recollect what reply he made.
I then asked him if he had a pencil, wishing to give my address; he
said he had none. Finding the pain in my wound to increase, I
thought it necessary to go home and have something done for it; at
this time I was aware that I was wounded, for I had shewn it to Gal-
loway. I then went home and changed my dress—I left my lodg-
ings then with two friends, with the intention of going to f )r. Whit-
ridge, to get him to examine the wound.—I found that Dr. Whit-
ridge was not at home, but that he had gone to Hyams. I tlien went
there for the sole purpose of seeing him; and near Mr. Hy aras' gate
met Lieutenant Magwood, of the Irish Volunteers; who informed
me, that I had been called as an evidence, before the Jury of In-
quest—I then went into the Jury, and gave my testimony——after
that I went with the Doctor to his house, where he probed tLie wound
and applied some plaister to it.—Upon my return home, while re-
lating the circumstance*to Mrs. Wing, the lady with whom J board,
I became extremely ill, and was put to bed—I remained iLl for ten
days, I was under the attendance of Drs. Simons, and Whitridge.
Q.—What were you doing when Martin Toohey stabbed you ?
A.—I simply had my hand on Michael Toohey's shoulder, urging
him to go home with his wife.
Q.—You heard the deceased say, " he did not know tliem, and
" never had done them any harm."
A.—I did hear him say so.
Q.—Had you either a belt or bayonet on, on that occasion ?
A.—I had neither bayonet nor belt on, on that occasion, nor wea-
pon of any kind whatsoever; not even a penknife in my poclcet.
Q.~—You are certain the deceased had no weapon ?
A.—None at all; he was not even making resistance he was
only endeavouring to get away.
Q.—After you saw them both strike the deceased, you saw Mar-
tin Toohey only, followhim ?
A.—Martin Toohey alone followed.
Q.——When you lost sight of them, where were they ?
A.—Nearly opposite Galloway's door.
Q.—Did you see Martin Toohey afterwards ?
A.—I did not.
Q—In what manner was the deceased dressed ?
A.—He had on a close bodied great-coat.
Q—Had he a hat on ?
A.—I did not observe.
Q.—Who did you see give the blow on the head ?
A.—It was Michael Toohey who gave that blow, it was over the
left eye.
22
Q.—Were you acquainted with the deceased Mr. Gadsden ?
A.—I was not.
Q.—Upon seeing the body could you form any opinion, whether
it was the same person, whom you had seen in the gripe of Michael
Toobey ?
A.—I could form no opinion if it was the same or not, the night
was so dark.
The general appearance however was the same. It was the same
sized man, he had on the same kind of great-coat. I observed on
the deceased, a severe blow over the left eye, and such a blow I saw
given to the person in the street, by Michael Toohey.
Q.—Did you yourself strike any blow upon that occasion ?
A.—1 did not.
Q.—Have you any ill will, or animosity to either of the prisoners?
A.—I really have not.
Q.—Did you hear any exclamation, when Martin Toohey pur-
sued the deceased ?
A.—[ did not—I could not pay much more attention, I was so
much shocked and agitated, at the transaction.
Q.—Had you any reason for not further persisting in getting
them away ?
A.—:Nnne in particular, only that I considered myself in some
degree of danger; as they appeared to be very violent, and I had
already been assaulted by them.
Cross Examined by Benjamin Faneuil Hunt, Esq.
Q.—Were they all together,- when you heard the cry of murder r
A.—Thev were.
Q.—Ho w was Michael Toohey dressed, when you saw him ?
A.—He had 011 a great coat, I cannot say if it was loose or but-
toned.
Q.—Do you not tliir.lv, that if Michael Toohey had had a bayo-
net in his hand, you must have seen it ?
A.—I am positive I must have seen it.
Q.—Did you know what was the cause of the irritation on the
part of Michael Toohey ?
A.—I never discovered—they appeared very much irritated—
there was no resistance on the part of the deceased.
Q.—-Did you hear either of the prisoners make use of any ex-
press ion ?
A.—I did not.
MP.—Were not the prisoners intoxicated ?
A.-—I. saw nothing that would lead me to suppose that either of
the prisoners was intoxicated.
Q.-—What was the meeting about, at Galloways ?
A.—It was on the occasion of a treat, given by Captain Gordon,
to the company.
Q.—You saw neither of the prisoners there, but Michael Toohey?
A.—I saw only Michael. Martin Toohey is likewise a member of
the corps.
2 3
Q.—Did not the members have their side arms on, at the
meeting?
A.—Some had, but others had not.
Q.—Was it not general ?
A.—1 cannot say that it was general. Fifteen or twenty pro-
bably had them on.
Q.—Did not the company muster on that day ?
.A—They did.
Q.— Did you hear no altercation or noise, previous to the cry of
murder ?
A.—I paid no attention, my notice was not attracted, until I heard
the cry of murder.
Q.— When did the company assemble ?
A.—About 7 o'clock, and this affair occurred about half past
eight or nine o'clock.
Q.—Michael Toohey struck the blow on the head ofthedeceas-
ed, with his fist only ?—you are positive of that fact?
A.—I am.
Q.—Where were the prisoners standing ?
A.— They were standing between the lamp-post and the wall, a
little distance from the wall, near each other.
Q—Was not this transaction very sudden ?
A.—Extremely so.
Q.—Did you see Martin Toohey strike with a bayonet ?
A.—I did not—he had one in liis band, and pursued the de-
ceased with it.
Q.—Did you remark, when Michael Toohey left the room ?
A.—I did not.
Q.—Where was Mrs. Toohey standing, when you saw them in
the street ?
A.—She was standing near to Michael Toohey, endeavouring to
pull him away.
Q.—What did you say to Martin Toohey, when he stabbed you ?
A.—I said nothing—he immediately rushed past me, to get at the
deceased. He was at this time, not in their grasp; but had got
from them, and they made after him, after I was stabbed. Though
I did not know it at the time, having felt only the blow.
Q.—Did the deceased appear exhausted ?
A.—Mot at the time I went up——he did not appear as if he was
wounded ; his cry was very strong—he appeared to be endeavour-
ing to free himself from their grasp.
Q.—Did you hear the deceased say any thing ?
A.—Nothing further, than," that he did not know them, and had
u not done them any harm."
Q*—Did not the prisoners appear to be in a very great rage ?
—They did appear to be in a great passion—the cause of
wdhch, I do not know.
Q*—-Did either of them attempt to escape ?
A'—Neither of them made the attempt.
Q-—Did you converse with Michael Toohey ?
24
A.—He did not appear to know me—indeed neither of them.
Q.—Had you any coat on, capable of concealing your uniform ?
A.—I had not.
Q.—When was it that you spoke to Michael Toohey ?
A.—It was before Mr. Moses came up.
Q.—Did you see Michael Toohey follow Mr. Gadsden, after he
struck him ?
A.—I did not.
Q.—Did you endeavour to ascertain from Mrs. Toohey, the
cause of the quarrel ?
A.—I did not—I held no conversation whatever with her.
Q.—Was there any conversation between Mr. and Mrs. Toohey?
A.—There was none—she was only endeavouring to urge him
away. I do not even recollect hearing them speak.
Q.—What did you say when you first went up ?
A.—I told Michael Toohey it was a shame to make such a dis-
turbance in the street, to go home with his wife—neither of them
made any reply.
Q.—You say you are acquainted with the prisoners—-do you not
suppose that Michael Toohey would recognize you ?
A.—I suppose he would—we have been in the habit of speaking
together when we met, and I think he ought to have known me
under any circumstance.
Examined by the Attorney General, in reply.
Q.—When you say they did not know you that night, what did
you mean ?
A.—I meant that I did not know whether they knew me or not—
not that they did not know me.—All I can say is, they made me n®
reply.
Q.—You said, that you did not see Michael Toohey follow Mr.
Gadsden; but did you not see him struggling with his wife, to get
away ?
A—I did—it "was after he got away from his wife, that he
struck the deceased.
Q.—At what time did the company assemble at Galloways?
A.—About 7 o'clock, and this occurred between 8 and 9 o'clock.
Q.—Did you see any persons intoxicated there ?
A.—I did not observe at the time.
JAMES SUTCLIFFE, Sworn.
Examined by the Attorney-General.
I live in Market-street, on the same side of the street where this
riot took place; so near that I heard the alarm of murder given.—
On hearing the cry of murder, I rose up and went towards the place.
On my way to the spot, I heard the repeated cries of murder !—
When I reached the place, I saw Michael Toohey, and another pei>
son with him, in uniform; they both appeared very much irritated.
25
One of them was brandishing a drawn bayonet—the wife of Michael
Toohey had her arm around his neck, endeavouring to get him
home-'he broke from her and went to the spot where the deceased
was; and gave him a blow with his right hand. It being very dark,
myself unarmed, and having a family depending upon me for sup-
port, I did not wish to get into a scuffle ; I therefore, withdrew.
Q.—When you saw Michael Toohey break from his wife, did he
say any thing ?
A.—He gave the blow, saying, you damn rascal, or God damn
rascal; I do not know which. While his wife was ePtreating him,
some one said to him, Toohey it isyour wife ; he replied, I respect
my wife, and then gave her a blow on the neck.
Q.—Did you observe any body go up to speak to Michael
Toohey ?
A.—I saw Mr. M'Dowall, go up and speak to him.
Q.—Were there any other persons present ?
A.—I saw a small man standing between the deceased, and the
prisoners j apparently defending the cause of the deceased, calling
them cowards, and using a deal of foul language.
Q.—What further ?
A.—I saw Michael Toohey, in the act of concealing something
under his great-coat, apparently sheathing a bayonet—he put it t®
his left side, with his right hand.
Q.—Was this before or after he struck the deceased ?
A.—It was after.
Q.—Did you see the prisoner Martin Toohey ?
A.—I do not know him—it was too dark, for me to discern his
countenance.
Q.—Had Michael Toohey any thing in his hand when he struck?
A.—I cannot tell if he had—the person he struck at, was stand-
ing beside the wall, and was some distance from where I stood.
Cross Examined by Benjamin Faneuxl Hunt, Esq.
Q.—Were you examined that evening before the Jury of Inquest?
A.—I was—but at the time I gave in my evidence, I was so confu-
sed and shocked, I could scarcely keep my feet; for I held the can-
die for the surgeon whilst he was examining the wounds.
Q.—Had Mr. M'Dowall come up, when you first saw Michael
Toohey ?
A.—I do not think he had come up, for Idid not see him until af-
ter the blow was given.—The little man who was espousing the
cause of the deceased—(I heard his name is Gordon) was there,
when Mr. M'Dowall came up.
Q.—When Michael Toohey gave the blow, had he his fist dou-
bled ?—and did he strike upon the head ?
A.—I was not near enough to tell if he doubled his fist or not, or
whether he struck on the head or not 5 though I was sufficiently
near to see that he gave a blow.
D
26
Q.—When fhe struck iris wife, was it an intentional blow, #e
simply a push with his arm, to get her out of the way ?
A.—It appeared like the act of pushing one away, with the arm.
Q.—Was he not under the excite ment of great passion.
A.—He was, to su< h a degree, that in my conception, it was
dangerous to go near him.
Q.—Who else was present, besides the persons you have men-
tioned ?
A.—I saw some one, who, I suppose, was Martin Toohey, stand-
jng between my house and the lamp post.
Q.— How do you know that it was Martin Toohey ?
A.—Only from hearing that they were together.
Q.—Did you hear any expression indicating the origin of the af-
fray, or the cause of Michael Toohey's passion ?
A.—I heard nothing that gave me the least idea of it.
Q.—How long were you in getting to the spot, from your house ?
A.—Not more than two or three seconds.
Q"—Was not some person with the wife of Mic hael Toohey ?
A.—There was a person in uniform, standing with her—I be-
lieve it was Martin Toohey, but ldo not know.
Q.—How long was it after you saw the blow given, before you
heard that the deceased was carried into Hyams' ?
A.—Not more than a minute.—Immediately after 1 saw Michael
Toohey give the blow, the person whom he struck was surrounded
by others, who took him away.
Q.—Are you positive, you saw no other person give a blow but
Michael Toohey ?
A.—1 am certain of it.
Q.—At what time did your bear the expression,u damn coward ?
from the little man, who was espousing the cause of the de-
ceased ?
A.—It was before Michael Toohey broke from his wife—When
he broke from her, he left her in the possesson of the other.
Q —How many persons were there present in uniform ?
A —There were two before Mr. M'Dovvali came up, and he made
the third.
Q.— Where did the person who was espousing the cause of the de-
ceased stand—when you first saw Michael Toohey ?
A.—He stood midway between the deceased and Michael Toohey.
Michael Toohey passed him.
Q.— Are you certain that no person gave a blow after Michael
Toohey ?
A—1 am—the person stricken, was immediately surrounded and
taken off.
Q.—Did you see any other persons at the affray ?
A.— When the blow was given, several persons were coming up,
from Meeting-street, towards the spot; Solomon Moses was one.
Q —This blow then over the eye, was the oniy one you saw giv-.
en—could you not have seen other blows, if they had been given ?
A.—I saw but one blow given, and I was sufficiently near *.n
have seen others if they had been given.
27
Q.—Were yoa not as near as Mr. M'Dowall was ?
A.—I could not have been so near as Mr. M'Dowall.
Q.—Was it Michael or the other person in uniform, who exclaim-
ed " damn rascal" ?
A.—It was Michael.
Q.—Did you not hear something, that would lead you to suppose,
that Mis. Toohey may have been insulted ?
A.—There was nothing occurred that gave me any idea that Mrs.
Toohey was insulted.
q.—Was not Michael Toohey's surtout buttoned up, when he
thrust this something as you say, in his right side ?
A.—It was buttoned only with the bottom button.
Q.—How far distant were you from Michael Toohey, at this
time ?
A.—About as far as from here to the bar (about 25 feet,) it might
be a little more or less.
Q.—When you went up, were the prisoners standing together ?
A.—They were not—one was approaching the other—Michael
Toohey was standing by his wife, and Martin was approaching him
from the place, were the deceased was.
Q.—Did you hear them say any thing to each other ?
A.-—I did not.
Q.—If they had spoken, could you have heard what they said ?
A.—I think I could not.
Q—How mary persons were in sight when you first saw the
Toohey's ?
A.—There may have been four or five; others were approaching
afterwards. The Ititle man (Gordon,) was the first who came up;
next Mr. M'Dowall, and then Solomon Moses.
Q.—Did the man who was standing with Mrs. Toohey $ leave his
place ?
A.—He did not—at this time, Mrs. Toohey was urging her hus-
band home, and the person who was with her, was dissuading Mi-
chael Toohey from any further proceeding. After Michael Too-
hey had broke from his wife and returned, Mr. M'Dowall went up
to him.
Q.—Did Michael Toohey give a blow after Mr. M'Dowall came
*p ? 0
A.—I cannot say, if he did or not.
Q.—Were not the parties in a great passion ?
A.—There appeared to be no passion on the part of any, but Mi-
chael Toohey.
Q-—Are you certain you saw one of them brandishing a drawn
bayonet ?
A.—I am—It was that which induced me to withdraw.—Having
a large family depending upon me for support, I kept off, not wish-
ing to expose myself to any danger.
Q.—Are you equally positive, that it was not Michael who was
brandishing the bayonet ?
A.—I am.
28
Q.—You were very much alarmed en this Occasion ?
A.—I was—I had reason to be so.
Q.—You were examined before the Coroner—were you not?
A.—I was.
Q.—Did your alarm deprive you of the power of recollecting the
events m the order in which they occurred, at that time ?
A.—I rather think it did.
Q.—Not so much so, however, as to prevent your recollection of
seeing other blows, had they been given ?
A.—I am certain that I saw but one blow given.
Q.—You heard no talking when the blow was given ?
A.—Yes—I heard the person who was struck, say, " what have
I done}"
Q.—How far was this affray from Meeting-street ?
A.—I cannot say—1 did not approach Meeting-street until I
went to Hyams'.
Q.—Were not the prisoners intoxicated, all this time ?
A.—They appeared so to me. Those of the company who col-
ected afterwards, appeared a little merry.
Q.— Was :V,r. M'Dowall so ?
A.—I cannot say that he was.
Q —But the Toohey's were evidently so ?
A.—From the conduct of Michael Toohey, it appeared t© me as
if it w as liquor, and passion both. I don't know as to the other—
I was so excessively terrified, I could not tell distinctly ; for the
night w as dark, and the scene awful.
Q.—Do you not think Martin might have passed you, without
your discerning it? ,
A—He might have, but not without going some distance round,'
towards my back, and walking on the opposite side of the street.
Examined by the Attorney-General, in reply.
Q.—Were you so much agitated on that occasion, as to be inca-
■panic of remembering the events, in the order of time in which they
occurred ?
A.—1 think T was.
Q.— After the first person came up, where were you ?
A.—I retired to the middle of the street
Q.—Do you think Mr. M'Dowall might have been there, when
you came up ?
A.—Yes—He might have been there, without my seeing him.
Q.—You are not acquainted with Martin Toohey ?
A.—I am not.
Q-—You saw Michael Toohey strike at the person against the
wall ?
A.—I did—and immediately afterwards, the person was carried
away.
Q—What occurred afterwards ?
A—did not distinctly see—several persons, were standing be-
tween that person and myself.
to
Q.—Was the person stricken carried off, or did he go off him-
self ?
A.—He was surrounded fast, but whether he went off alone, of
was carried off, I cannot say.
Q.—Martin Toohey might have passed you, without your observ-
ing it ?
A.—He might, but it is my belief, that he did not.
Q.—You saw Mr. Gads'en, laying dead in Hyams' house. Do
you not believe from the gener d appearance, that he was the same
person, who you saw Michael Toohey strike in the street ?
A.—1 do—He was dressed precisely in the same manner with a
clo-e bodied great-coat.
q.—Did you see any one strike Mr. M'Dowall ?
A.—I did not.
At this stage of the Trial, it being 7 o'clock in the evening, and
the Court having been very closely occupied since 10 o'clock in the
morning the propriety of an adjournment was suggested, which being
acceeded to by the Counsel on both sides, the Judge consented.—
His honor took occasion to impress upon the minds of the Jury, the
great responsibility which was now resting upon them, and that it wa#
altogether a matter i.f courtesy, hat they were allowed to separate
before a final conclusion of tli. trial. He trusted that the import-
ance of the case, the lives*of two fellow creatures being at stake —
and the duty which they owed to their country, would prevent them
from conversing with any person on the subject of this trial, or list-
ening to any thing out of the precincts of the Court-room, on the
subject—or make up their minds, from the exparte testimony which
they had that day heard ; but hoped that they would keep their
minds totally unbiased, and open to all the facts of the case, as they
shall be detailed in Court, and from no other source whatever.
The Court then adjourned until 10 o'clock next day.
Wednesday morning. J muary 2 7th 10 o'clock.
Pursuant to adjou rnment, the Court met and proceeded in the ex-
amination of the witnesses :
Dr. J. B. WH1TRIDGE, Sworn,
jExamined by the Attorney-General.
On the evening of the 21st of December, I was called in great
haste, to visit the late Mr. James W. Gadsden, who was reported
by the messengers, to have been severely beaten in the street, and
to have received some wound, which they feared to be mortal.—I
immediately went with the messengers, to the house of Mr. Hy-
ams's;—where the deceased was, found him lying upon the sofa not
yet dead, but gasping. His pulse was gone, "and life was so far ex-
tinguished, as to preclude all hope of recovery.—My attention was
called by those around him, to an examination of his head; which
they supposed to be fractured, and the cause of the condition in
30
which I found him. There was a considerable contusion upon the
outer angle of the orbit of the left eye, which was visible at first
fight; a little blood was perceptible exuding from the ear, of the
same side.
Although some violent means had been used, the nature of the
injury was not known. I Was therefore, led to ascertain whether
there was any fracture of the bones of the cranium or compression
of the brain. I discovered none whatever, nor any injury sufficient
to account for the condition of the unfortunate man.
I was of course led to seek for some other cause, to account for
effects so apparent.—His clothes were forthwith directed to be re-
moved, and as soon as his back was uncovered, I discovered a wound
in the posterior part of the right hypochondrium, or dorsal region,
•? 'c' h appeared to be a simple punctured wound. Some persons
lu■».«• .li.v.tely cried out he is stabbed.—Mr. Hyams then said, he re-
c d his saying that he was stabbed, when be first received
ku.u— There was very little flow of blood from this wound—I pursu-
ed the examinination still further, and discovered another simple
punctured wound in the abdomen, in the lower part of the umbilical,
or superior portion of the hypogastric region ; three inches below,
and two on the left of the umbilicus. From this wound, there was
also hut little flow of biood—I readily passed a probe into the cavity
of the abdomen, from the wound in the umbilical region, but could
not pass one into the cavity of the thorax, through the wound in the
back.—The probe passed readily under the cellular membrane, but
would not enter the thorax; probably in consequence of the con-
tracted state of the muscles, at the time the wound was received,
which being afterwards relaxed, closed the orifice in the muscles.
It was supposed that the body had been completely transfixed by
a bayonet, that this was not the ease I infered from the circumstance
of the orifices being about the same diameter, which would not have
beew thus—if produced by a bayonet or small sword of ordinary
shape. I could not however, satisfy myself, as to the wound in the
back, without bein able to demonstrate its course—"Vir. Gadsden
being now dead, I requested permission of The Jury of Inquest, to
make an incision into the muscles of the back—which 1 did.
Q.—Wastbe wound in the back and that in the abdomen, the
same, or distinct r
A.—They must have been separate and distinct wounds, for they
both took a direction obliquely upward. The wound in the back,
was so small, that I could not pass my little finger into the orifice,
until I had dilated it—after which, my finger readily passed into
the cavity of the thorax; I then discovered one of the ribs to have
been partially fractured, by the instrument that inflicted the wound.
I think it was the 11th rib ; the instrument having passed between
the llth and 12th ribs near the spine, 1 then thought that the wound
in the thorax bad been the immediate cause of his death. I con-
eluded so, because the wound had taken a direction towards same
Hood-vessels, that were absolutely indispensible t© life.
31
"Not being satisfied with this partial examination, in order to aseec-
tain the nature and extent of the wounds with more precision, I re-
quested my friend, Doctor Waring, together with three young gen-
tlemen, my pupils) to accompany me to the house of the deceased,
(to which his body had now been removed) for the purpose of making
a more minute examination, by dissection. I first opened the cavity
of the abdomen, and after removing a quantity of blood, 1 found
several of the intestines wounded; there were at least five punc-
tures through duplicatures of the different intestines, and through
the mesentery. From the wound in the abdomen, it appeared that
the instrument had taken' a direction upward and inward, after
wounding four of the intestines and mesentery, in several places,
penetrated the peritoneum near the spine, and wounded some hnpor-
tant blood-vessel. This I inferred from the great suffusion of blood,
behind the jperitoneum, as well as from the sudden effect produced.
Q.—Did thfe instrument which occasioned this wound, penetate
through the body ?
A.—It did not—It probably was prevented from doing so by the
resistance which it met with at the lumbar vertebrae. It penetrated
obliquely upw ard and backward, about four or five inches, and after
wounding the abdominal viscera, as before mentioned, pierced the
peritoneum, and one of the emulgent veins, or the vena cava infer-
ior, probably the latter. As it was near night when we made the
examination, and the quantity of coagulated blood behind the peri-
toneum, so great as to obscure the dissection, I did not demonstrate
the particular vessel wounded, presuming it sufficient for our pur-
-pose, to ascertain that one of them.was wounded.
Q.—Would a wound of the vena cava prove immediately fatal ?
A.—Yes—a wound of the vena cava, must necessarily interrupt
the action of the heart, by preventing the return of blood to that
organ. The action of the heart by being deprived of its accustomed
and necessary stimulus, would therefore be suspended, and death
would ensue almost as soon as if the aorta, or the heart itself, was
punctured.
The wound in the abdomen, was decidedly the immediate cause of
his death.
This opinion however, is different from that which I expressed o*
the evening I was called to the deceased. In the course of the sub-
sequent examination of the body, it appeared that the lesser bran-
ches only, of the pulmonary artery, were wounded, and not the
trunk itself, as I supposed.
Q.—Do you not think the wound in the back, such a one as might
have proved mortal ?
A.—It might have proved so ultimately, but it probably would not
have done so immediately. With active and vigorous treatment
such a wound may be cured.
Q-—You then think that this wound is not necessarily mortal-—
but might prove so ?
A—I do—but have seen even worse wounds then that cured;
32
Q.——Where was the wound made ?
A.—The instrument entered the cavity of the abdomen, be
tween the 11th and 1-2th ribs, passed obliquely upward, pierced the
diaphragm just at its junction with the ribs, (costce) and entered the
inferior portion of the right lobe of the lungs, which it penetrated
from its apex about tlr.ee inches.
Q.—With what kird of an instrument do you conceive these
wounds to have been rrad" ?
A.—They must havt been inflicted by some long, narrow instru-
ment.
Q.—From such an instrument as a bayonet ?
A.—They were small wounds of a triangular form, precisely such
as a bayonet would make. I have often seen bayonet wounds in the
course of my Military Practice, and think those appeared smaller
than bayonet wounds generally do—but wounds of this kind vary ac
cording to the shape of the bayonet. and depth which it penetrates.
Q.—Which was the smallest wound ?
A.—The wound in the back—It was so small, that I could not in
troduce my little finger into it. through the skin.
Q.—-What was the depth of this wound ?
A It was about four inches deep.
Cross Examined by Eenjamin Faneuil Hunt, Esq.
Q.—Do you think the wound in the body would have enabled
the deceased to struggle with any one ?
A.—I think it would—but he certainly could not have been able
to make resistance for any length ol time.
Q.—What kind of blood did you find in the cavity of the ab-
domen ?
A.—It was fluid, and had the colour and usual appearance of ve-
nous blood.
Q.—Do you think death would have ensued, if one of the large
blood-vessels had not been injured ?
A.—I think it would not "tinmediately.
Q.—Does not a relaxation of the muscles take place immediately
upon death ?
A.—It does.
Q.—Do not wounds from this circumstance, always appear smal-
ler, than the instruments wounding ?
A.—Wounds inflicted by projectile bodies, such as bullets, buck-
shot, &c. generally appear much smaller, on account of their ve-
locity.—The same observation will, in some degree, hold good ,with
respect to punctured wounds by bayonents and small swords from
the elasticity of the muscular fibre.
Q.—Which of the wounds appeared to have been given with the
greatest forc e ?
A.—The wound in the back, as it had more resistance.
38
Examined by the Attorney-General, in reply.
Q.—I will thank you to look at this bayonet, and tell me if the
wounds you describe, are such as would be given by it ?*
A.—They are—and the wounds correspond with the shape and
size of this bayonet. If any thing, the wounds appear some what
smaller.
Q.—Is not the point of the bayonet, sharper and narrower than
those used in the Army ?
A.—I think it is.
Q.—Have you any knowledge of the difference between our bayo-
nets and those of the English ?
A.—I cannot say that I have ever taken particular notice of
the English bayonets. I have been more familiar with the wounds
•ccasioued by them, than the instruments themselves.
Dr. HORATIO S. WARING, Sworn.
Examined by the Attorney-General.
Q.—You saw the body of Mr. Gadsden—did you not?
A.—I saw the deceased as he lay dead at his own house, the
morning after he had received his wounds. He had received two
wounds—one a little to the left of the navel, entering into what is
called the umbilical region; the instrument with which this wound
was inflicted, must have passed at least six inches obliquely upward,
wounding in its course several of the intestines, viz. the duodenum,
jejunum, and some arterial branches of the mesentery; the instrument
entirely passed through the duodenum. Dr. Whitridge, in my pre-
sence, opened the body, and he found behind the peritoneal sac, ad-
jacent to the kidney, a very extensive collection of blood, a consider-
able portion of which was coagulated—this was decidedly a mortal
wound.
Q—As a medical man, do you pronounce that to have been a
mortal wound ?
A.—I do.
Q—Where was the other wound ?
A.—Between the 11th and 12th rib, on the right of the spine,
■and at their junction with it. This wound penetrated into the lungs,
from three to five inches.
Q.—Do you conceive this to have been a mortal wound ?
A.—I am doubtful, as to its being absolutely a mortal wound—
such a wound might be cured, but it is of an extremely dangerous
character.
Q-—From the appearance of the wounds, could you tell with
what instrument they were made ?
A.—I cannot—the wound on the back, was dilated by Dr. Whit-
ridge, on the night previous to my seeing the deceased. The one
* The bayonet taken from the prisoner Martin Toohey, was then handed to
the witness.
E
34
in the abdomen, must have been given by an instrument, which
being withdrawn from the abdominal cavity, and with great forbe,
brought a portion of the omental fat, that formed a plug, to the
orifice, and which may have prevented thoutward escape of blood.
Q.—Do you not think that this fat which was in the exterior ori-
fice, would have had the effect of wiping the blood from the instru-
ment, as it was withdrawn ?
A.—1 think it probable, that it would have had that effect.
Q.—What was the direction of the wound in the abdomen ?
A.—It inclined obliquely upwards, and to the right, giving to the
intestines five or six wounds.
Q.—Would you infer from the wounds, that they had been made
by a sharp pointed instrument?
A.—I should infer they were given with a long sharp instrument,
tapering considerably 5 and for this reason, that the wounds of the
intestines, were smaller than the exterior wound.
Q.—Was it such a wound as would be inflicted by a bayonet ?
A.—I think a sharp bayonet would make such a wound, though I
have never been familiar with bayonet wounds.—The injury done
to the blood-vessels behind the intestines, must certainly have been
effected with a long sharp instrument.
Q.—Did you observe any other wound ?
A.—There was a contused wound over the left eye and ear, but n«
fracture in the bones beneath appeared evident in this place. Some
blood issued from the ear, but that may have been caused by a blow
given with the fist which started blood from the vessels of the (exter-
nal) ear—I do not think that this blow occasioned the death.
Cross Examined by Benjamin Faneuil Hunt, Esq.
Q.—Was the wound in the back, a mortal one ?
A.—I do not think it necessarily mortal, such a wound he may
have recovered from, though I should have considered him in a dan-
gerous state, for months.
Q.—You did not perceive on the body any other wound, than that
in the abdomen, which you would consider necessarily mortal ?
A.—I did not—The wound over the left eye and ear, seemed t«
be external.
Q.—Could not such a wound as you describe in the abdomen,
have been inflicted with a sword ?
A.—I think not—It was evidently with a long sharp instrument,
much narrower than a sword.
Lieut. THOMAS FELL, of the City Guard, Sworn.
Examined by the Attornev-Generai,.
I went with a detachment of the City Guard, and several citizens,
on the night of the 21st of December last, about 12 o'clock, to ar-
rest the prisoners.—We went to the office of Mr. John H. Mitchell.,
to get a warrant, I had with me a serjeant and eight men—after get-
35
ting the warrant, I was deputised by the magistrate, as a. constable ?
"We then went to the house of Michael Too hey, m King-street, two
or three doors above George-street, on the right hand. We found
the front of the premises all shut, the gate was barred; by pulling
one half of the gate towards me, I was enabled to get my hand
through, and lift up the bar. The citizens entered with me, except
one, who remained on the outside.
Q.—How many citizens were with you?
A.—I do not recollect—about twelve or fifteen ; I do not remem-
ber all who were there.
I went in silently to the hack door, which I found ajar—I saw two
ladies and three gentlemen sitting around the fire ; I knocked at
the door, and Avith it entered the house. I was in uniform, one of
the gentlemen rose, stopped me at the door and asked my will.—
I believe it was the younger prisoner, Martin Toohey. Michael
Tooliey by this time, had approached towards the door also—I told
liim I wanted Michael and Martin Toohey ; they enquired for what?
—I replied, you are my prisoners, for the murder of Mr. James
Gadsden. As I said this, Martin Toohey drew his bayonet, and
said, he would kill any one, who attempted to take him—I said to
him, friend put up your bayonet, you can't frighten every body.
Q.—Did you enter the room alone ?
A.—I did—The rest of the party were not in sight of the prison-
ers j they were standing at the threshhold of the door.
Martin Toohey attempted to shut the door, which I prevented^; I
then called the remainder of the party, who came into the room 5
upon which, Martin Toohey immediately sheathed his bayonet.—
Michael said, I am an innocent man—I have done nothing—won't
it, do, if I make my appearance in the morning ? Whilst Mi-
cliael was speaking, Martin went to a door, which I thought was a
closet; but found it led to a stair-case. Martin entered it, I at-
tempted to follow him, when Michael Toohey and his wife pledged
their honour, to bring him down.
Q.—As he was going up stairs did he say any thing, or make any
threats ?
A.—I did not hear him say any thing.—He remained up stairs,
half a minute or a minute, when Mrs. Toohey wenr up; she remain-
ed some time, which creating in me some uneasiness, I went after
him; when I got partly up, Mrs. Toohey returned from the front
room—I said to her, I suppose your brother is changing his clothes ?
When I got to the head of the stairs, I saw Martin likewise come out
of the front room—I said to him, you have changed your panta-
loons; lie replied, that he had changed them at his own house; feel-
ing doubtful as to this fact, I went into the room to make an examina-
tion, but found it empty; I was certain then he had not changed
them. I ordered liirn down stairs; I said to Michael, shall I tie you,
be replied no! on the honor of a man Mr. Fell, I will go wherever
you carry me.
Q-—Were the prisoners armed ?
A.—They both had on side arms, I examined their bayonets t®
see if there was any blood 011 them ; I saw none—After they had
taken leave of their wives, we left the house. I placed a sergeant and
four men, the two prisoners in the rear of the four men ; four men
in the rear of the prisoners; myself in the centre; and proceeded
down King-street as far as Market-street, when I heard the prisoners
whispering to each other. It immediately occurred to me that they
were forming some plan of escape—I however, felt satisfied from the
force I had, that any attempt of that kind would be fruitless; I ne-
vertheless, kept my eye upon Martin, because, as I had learned from
the party that he had attempted to escape when we were at the house;
I would take care of him—I had my sword drawn, and kept near to
them. When we got opposite Clifford-street, I ordered the sergeant
to wheel to the right, for the purpose of proceeding through that
street to the gaol, when Martin Toohey, turned to the left and fled,
he ran into Cumberland street—Iimmediately ran after hiin, but find-
ing that I ran faster than he did, I turned and faced him, near a
lamp whi h was civing a faint light. As soon as I turned, the pris-
oner having struck his foot against something fell, and struck me on
the instep with his head. lie was in full speed—I was determined
to take him at all risks. As soon as he fell, I seized him by the
collar; and he seized the blade of my sword—I endeavoured to
draw the sword through his hand, but his grip was so firm, that I
could not. Mr. Cross, one of the party, came up to my assistance ;
and we succeeded in compelling him to submit. We returned to the
corner of King-street, where the remainder of the party was with
the other prisoner. They said they were innocent men ; Michael
said, I have made no resistance—I think his falling prevented me
from running him through, as I was determined to overcome hi.m at
all hazards.
Q.—How was Michael Toohey dressed ?
A.—He had on a close bodied surtout, over his uniform.
Q. Had he on a cross belt ?
A.—He had—I recollect asking him, if he had not changed his
clothes; he answered, that he was just as he was at the meeting.
Q—Had he a bayonet in his sheath ? ,
A.—He had on his belt and bayonet all the time.
Q.—What was the dress of Martin Toohey ?
A..—I am positive he had on blue pantaloons, I atn not certain as
to the coat; he said he had changed his clothes at home.
Q.--You cannot say whether Martin had on uniform, or not :
but had he not a belt and bayonet on ?
A.— He had on a belt and bayonet, his waistcoat was cassimere.
Q.—Are not the bayonets which you now see, the same that you
took from the prisoners, the night you arrested them ; and have they
not been in your possession ever since ?
A.—They are the same, and they have never been out of my pos-
session.
Q.—You said there were three men in Michael Toohey's house,
when yoti entered—who was the third man ?'
A.—I understood it was the youngest brother of the prisoners.
Q.—Was he in uniform •?
87
A.—He was not.
Q.—Were the prisoners intoxicated ?
A.—Michael Toohey appeared intoxicated, but Martin appeared
3ober.
Q.—Did Michael speak rationally, and appear to know what he
Vas about ?
A.—He did so.
Cross Examined by Benjamin Faneuil Hunt, Esq.
Q—Did you see any thing in the conduct of Michael Toohey,
that indicated conscious guilt ?
A.—I saw nothing to that purpose.
Q.—Was not his coat buttoned—how then could you see his
bayonet ?
A.—It was so buttoned, that I could see the greater part of the
belt.
Q.—Did not Michael Toohey appear, when you were at his house,
to be recovering from a state of intoxication, and not yet com-
pletely sober ?
A.—That was my impression.
„ Q.—Did he say any thing to his wife, upon leaving the house ?
A.—He composed her, said he would be home in the morning.
Q.—Did he not speak very tenderly to her ?
A.—He spoke as tenderly to her as language could express.
Q.—Did the company you found, appear to have any intimation
of what had occurred ?
A.—I infered that they had, from their being up at such an un-
seasonable hour.
Q.—Was there any sign of Martin's having been in a state of in-
toxication, and recovering from it ?
A.—I saw nothing that would lead me to suppose so.
Q.—Did any of your company think he was drunk ?
A.—None of them saw him in the house, therefore, I cannot tell,
if they thought he was drunk—I heard none of them express an
opinion on the subject.
Q. —What was the appearance of Mrs. Toohey
A.—She appeared far advanced in pregnancy, which induced
me to be more mild on the occasion, than I otherwise would have
been.
Q.—Do you really think that Martin Toohey went up stairs to
make his escape ?
A.—I do.
Q.—Did Mrs. Toohey appear much agitated ?
A—I cannot say, for I did not see her countenance.
Q.—Who was the other lady, that was sitting by the fire, when
you first entered ?
A.—I understood she was the wife of Martin Toohey-
38
ARCHIBALD LORD, Sworn.
Trammed by the Attorney-General.
Q. Were you not one of the party who went with the guard, to
arrest the prisoners on the night of the murder ?
A.—I was.
Q,—Did you see Martin Toohev, and how was he dressed ?
A.— I did see him, he had not on an uniform coat.
Q.—Did yoii see him attempt to escape ?
A.—I did not—I was in the house at the time.
Q.—Were not some of the party in the street ?
A.—Mr. Job Horlbeck, Henry Horlbeck, and Henry Cross,
were there.
Q._Did Michael Toohey appear intoxicated ?
A.—He appeared somewhat so.
Q.—Did he appear to know what he was about ?
A.—Perfect!1.
Q.—Was Mjrtin Toohey intoxicated ?
A.—I do no; think he was.
HENfRY CROSS, Sworn,
bamiued by the Attorney-General.
Q.—Were y«i one of the party that went with the guard to arrest
the prisoners, oil the night of the murder?
A.—I was.
Q.—Doyou ecoliect how Martin Toohey was dressed?
A.—I believe be had on blue pantaloons, not certain as to his
coat, but I am positive it was not an uniform coat.
Q.—Did youenter the house ?
A.—I did not. I remained in the street.
Q.—What did you see there ?
A.—I saw ill prisoner Martin Toohey, get out of the front win-
dow up stairs, on the top of the bow-window of the store, which i^
underneath—lsaid to Mr. Horlbeck, there he is !—He asked the
sentinel if he wis loaded, upon which the sentinel rattled his gun, as
if to take aim, m i cried—' who's there !' Martin Toohey immedi-
ateiy jumped iiagain.
Q.—When tie sentinel was asked if he was loaded, did he make
any reply ?
A.—tie simpy rattled his gun and challenged.
Q.—Was it wade in a voice sufficiently loud for the prisoner to
hear ?
A.—It was—it was more to frighten him into submission, than
any thing else.
Cross bamined by Benjamin Faneuil Hunt, Esq.
Q—Were'nit both the prisoners intoxicated
39
A.—I think that Martin Toohey was a little intoxicated, not very
sensibly so. I did not pay particular attention to Michael.
Q —Did he not appear as if he had come out of a drunken frolic?
A.—I think Michael was less intoxicated than Martin.
Examined by the. Attorney-General, in reply.
Q.—Did they not both appear to know very well what they were
about ?
A.—I think they did perfectly.
The Attorney-General here said, that in the course of the exami-
*ation of his witnesses, by the Counsel for the prisoners, several
questions were put to them evidently with a view to endeavour to
implicate Mr. Daniel M'Dowall, as a party in this transaction. He
therefore, felt it an imperious duty, to shield this highly respectable
and candid witness from the least imputation. He would prove from
the most respectable testimony, that the character of this gentleman
stood upon such high grounds, as to place him far above the slight-
est suspicion, of being, in any respect, a participater in the crime
•f the prisoners of the bar.
SAMUEL OSBORNE, Sworn.
Examined by the Attorney-General.
—Are you not intimately acquainted with Mr. Daniel M'Dow-
all, who gave testimony in this case; and do you not board in the
same house with him ?
A.—I am intimately acquainted with Mr. Daniel M'Dowall, but
do not board in the same house with him.
Q.—Did you see him, on the evening of the murder ?
A.—I did—I was at the meeting of the Irish Volunteers with hint.
Q.—Had Mr. M'Dowall any bayonet or belt on ?
A.—He had not—he did not turn out on that day, he went to the
meeting with a round hat on.
Q.—-What is the character of Mr. M'Dowall ?
A.—He is a man of the strictest honor and integrity.
Q.—Did you see the prisoners at the meeting ?
A.—I did.
Q.—Were they intoxicated ?
A—It struck my mind when I saw them on the stairs, that they
were a little so.
Q.—Did they appear to know what they were about ?
A.—I think they did perfectly, they went down stairs together.
Q-—Was Mr. M'Dowall intoxicated on that occasion ?
A.—He was not—He was perfectly sober.
Q.—Did you observe any thing particular in the conduct of the
prisoners, that evening ?
A.—I did not.
Q.—Were they both in uniform ?
A.—They were.
40
Q.—Had they on white pantaloons and belts F
A.—To the best of my recollection, they had white pantaloon
•n, I cannot swear positively as to belts.
Q.—You say you are intimately acquainted with Mr. M'Dowall,
what is his general character ?
A.— Mr. M'Dowall is a warm-hearted, generous, good man-—of
iihe strictest honor and integrity ; of a character that puts him be-
yond the reach of any suspicion of his having been in anywise con-
•erned in this affair.
Cross Examined by Benjamin Faneuil Hunt, Esq.
Q.—Do you recollect when Michael came down stairs that he had
on a surtout coat—was it buttoned ?
A.—I recollect his having on a surtout-coat, but cannot swear
positively that it was buttoned—it might have been buttoned low
down.
Q.—Did the prisoners when they were coming down stairs, appear
as if they were intoxicated ?
A.—They did not appear so to me.
Q.—Did they appear to be in a irritable mood ?
A-—They did not.
Q.—At what time was this ?
A.—Between 8 and 9 o'clock at night.
MR. JOHNSON, Sworn.
Examined by the Attorney-General.
Q.—Are you acquainted with Mr. M'Dowall ?
A.—I have known him in Ireland—He is a young man of the
most irreproachable character.
LAWRENCE RYAN, Sworn.
Examined by the Attorney-General
Q.—Are you acquainted with Mr. M'Dowall ?
A.—I am well acquainted with him—he is a man of unexcepti-
enable character, for honor and integrity.—This is his general
eharacter.
The Attorney-General was proceeding to call more witnesses, te
the good character of Mr. M'Dowall; when he was interrupted by
the prisoners Counsel— who stated, that they were satisfied with the
character of Mr. M'Dowall—-and did not mean to impeach his con-
duct before—and did not think there was any necessity for more
testimony on the subject. The Attorney-General said, he had a
host of witnesses, in support of the character of Mr. M'Dowall; and
also, to prove clearly, that he was not concerned in any way, and did
shew his wound, before he left the spot; but the admission of the
Counsel, rendered it unnecessary to call any other witnesses, and he
would here close his examination on the part of the Statfe; reserv-
ing to himself the right of calling witnesses in reply.
41
Benjamin Faneuil Hunt, Esq.—Then rose on behalf of the
prisoners.
May it please your Honor,
Gentlemen of the Jury.—As Counsel for the prisoners, it is my
duty to state to you succinctly the grounds of their defence, both in re-
lation to the Law, and the Evidence.
Deeply as this event is lamented, and it is mourned by none more
sincerely, than by the accused : in the course of the trial, it will ap-
pear that the death of Mr. Gadsden, was unaccompanied by any of
those circumstances, which are the essential ingredients in the crime
of murder! It will be proved that no irritation or pre-disposition to in-
jure any one, was observable in either of the accused, prior to the fatal
encounter, that tore from society so valuable and worthy a citizen.
Permit me, Gentlemen, to assure you of my heart-felt regret, for
the awful cause which has imposed on me the task of conducting
the defence of the prisoners. I knew Mr. Gadsden well—and claim
the melancholy privilege of mingling my voice, with those of all who
shared his acquaintance, in testifying how much he was beloved, and
how sincerely he is deplored.
I dare not intrude on the sorrows of his disconsolate family, or at-
tempt to analyze their poignant affliction. But I am well assured,
they will receive no consolation from the infamy ! the anguish ! or
the death of the accused.—Unappeased vengeance, forms no ingre-
dient in the bitter chalice of their woe. Nay !—They cannot but
sympathize, with the families of those wretched men; who, if they
live, cannot escape the imprecations of the world—and if they die,
will leave to their posterity no inheritance but shame ! to their
widows no consolation, but despair ! no hope but the grave !
He alone, who can heal the afflictions of the broken hearted,
and pour the balm of consolation in the lacerated bosoms of the
afflicted families of the deceased and the accused, can give to this
transaction its true complexion. You must be guided by the feeble
glimmering light of human testimony—Let not your imaginations
heighten, nor your sympathies for the deceased, aggravate the guilt
of the accused. Allow to human nature all that its infirmities plead
for, and execute even human justice in mercy.
The facts which will be proved by the defendants, are—That Mi-
chael Toohey, on the afternoon of the day, on whieh the event oc-
curred, had paraded with a Volunteer corps, to which he was at-
tached, and had drunk somewhat too freely. That after the parade,
he had retired to his own house, and took tea with his family in good
spirits and temper—and in the evening requested his wife, without
whom he seldom left home after dark, to accompany him as far as
Mr. Hyams' and wait for him, while he attended a social meeting of
the Company at Galloway's tavern, to which he had been invited
by the Captain. That Mrs. Toohey being slightly indisposed, declin-
ed going at first, and her husband, rather than leave her alone, was
concluding to stay at home, when Mrs. Tooheysuggested to him, that
as he had been invited on a particular occasion, it might bethought
F
42
neglectful, if he did not attend ; and 'feeling disposed, rather than
disappoint him of his pleasure, to acquiesce in his request; she said,
at length, she would accompany him—That accordingly, she assist-
him on with his surtout, and buttoned it over his uniform and side-
arms, which were usually worn on such occasions; and they
proceeded together to the house of Mr. Hyams, where, after some
moments conversation, Mr. Toohey left his wife, and went across
the street to Galloway's. During his stay there, he continued to
drink, arid was in good humour with all around him.— That after
about two hours he retired, with his brother, and they addressed
each other in an affectionate manner, and agreed to retire.—That
Mr. Galloway buttoned the surtout of Michael, over his uniform and
side-arms, and the two brothers left his house without the slightest
appearance of passion. That Michael then called for his wife, who
being in an advanced state of pregnancy, would have been a very
unfit partner in any affray. That almost instantly after he had thus
taken his wife under his protection to return home, the cry of murder
was heard from some one. near the corner of Meeting-street. That
the first persons who came up, found Michael Toohey, the husband,
in a violent passion, apparently against some person who either at-
tacked or insulted himself or his wife. We shall thus trace him from
his departure from his own house, to the moment when the first in-
timation of any acts of violence reached any of the witnesses, and
prove him, up to that moment, to have exhibited no signs of irritation,
no pre-deterrnination of injuring any one. It will result, that some
cause unexpected and violent, had roused his anger, and excited his
resentment, which negatives the presumption of premeditation, or
malice, which is attributed by the Law, to the ac t of killing.
The real origin of the encounter, is I fear a secret, which we shall
in vain attempt to disclose. None living can be permitted to with-
draw the veil which hides it fiom your view. The death of Mr.
Gadsden was so sudden, the night was so dark, and the scene hastened
with such rapidity to its awful close, that no certain account can be
collected from any but those whom the policy of the law forbids you
to hear. But strong circumstances, leading directly to the conclusion,
will induce you to believe, that one or more persons escaped in the
darkness and confusion, who were the real instigators of the quarrel;
and that Mr. Gadsden either interfering to restore peace, or acci-
dently passing at the very instant, was mistaken for the true assail-
ant, and fell a victim to the resentment of a husband and brother,
against one, who had assaulted and insulted a lady, whose peculiar
situation induced an uncommon tenderness for her safety.
That Mr. Gadsden was mistaken for another, will appear from
there having been no previous acquaintance between him and the
prisoners; and from the improbability that a man of. his well known
mild and peaceable demeanor, could have raised the resentment of
any one. It has been proved that Michael Toohey struck only with
his fist, and it will appear that his coat which had been buttoned'be-
fore he left Galloway:s, remained so, during the whole transaction.
We shall therefore, contend that as he could not have been privy to
43
the use of a deadly weapon, he is guilty of no higher an offence, than
an assault upon the deceased. And that being heated by liquor, both
were in all probability uncommonly irritable.—It will appear also, in
relation to Martin, that Mr. Gadsden was an entire stranger to him,
and could not have been the object of his vengeance. The quarrel
was sudden, the parties unknown to each other, and the catastrophe
unpremeditated.
Tn relation to Martin Toohey, it will also appear in evidence—
That he paraded in the same Companv, and was somewhat intoxica-
ted when he went to ihe meeting. That he resides in Meeting-street,
and his brother Michael in King street, and of course, that their way
home was different That when they quitted the social board, the two
brothers were in a friendly mood to each other; wholly unruffled by
-passion, but considerably intoxicated.—A few moments only elapsed
from their being thus unprepared, and without expectation of an af-
fray,-before the fatal encounter. Circumstances will be detailed,
which will induce a belief, that hearing a cry of murder, proceeding
from the place where he knew his brother and wife were, Martin
very unadvisedly came to the spot, drew his bayonet, and gave the
wounds, which caused the almost immediate death of Mr. Gadsden.
That the night was extremely dark, and at least one person was
present other than Mr. Gadsden, when Martin came up, who had ta-
ken his side against ■Michael and his wife. You will have reason to
believe, that Martin was in the act of turning up Meeting-street,
when he heard the cry ; and that he must have been firmly im-
pressed, from the cries of the deceased and Mrs. Toohey, that his
brother and wife were attacked; for it has appeared, that he even stab-
bed a person who came to interfere. His intoxication rendered him
hasty; the darkness of the night made him liable to mistake, and fatal
as has been his interference, he manifested no malice, ;and|his crime
is rather to be attributed to the infirmity of his nature, than to a de-
praved. and wicked heart; and you will therefore, in mercy to hu-
man weakness, mitigate his offence to manslaughter.
I will now state to you those principles of law, which will be ap-
plied to the facts above stated :
First—Where a mutual contest arises, and there is no evdience of
its origin, so that the aggression in presumption of law, may have
come from either party, and one uses a deadly weapon, if the excite-
ment is so great as to indicate that a blow has been given, the law
concludes that the blood was heated, and the passions inflamed, and
the offence is manslaughter.
i,: If on a sudden quarrel blows pass, without any intention to kill
" or injure another materially, and in the course of the scuffle, after
t( the parties are heated by the contest, one kill the other with a
" deadly weapon—It is ruled to be manslaughter." 1st—East P.
C. p. 243, ch. 5, Sec 25. Rex. v. Taylor, 3, Burr, 2793.
Secondly—If the Jury should conclude from the evidence, that
the blow which proved fatal to the deceased was intended for another,
who in the darkness of the night escaped, and who had rudely as-
saulted either Michael Toohey or his wife, the unfortunate error
44
will not aggravate ihe crime. It is not the deed but the mind that
marks the character of the offence. " If the blow intended for one
" would in law only have amounted to manslaughter, it will still be
" the same, though by mistake or accident it kill another."—1st
East p. 245, ch. 5, Sec 27. See Levets case, Cro. Car. 538.—1 Hale
42, 474, where a house-keeper, hearing a cry of thieves, ran down
stairs in the dark and thrusting before him, killed a maid servant,
who had been on a visit to the maid servant of the h >use, and had hid
herself on the cry of thieves.—" The transaction is stated to have
<{ happened in the dark"—and although a defenceless woman was
killed, yet the design was to kill a burgler, for whom she was mis-
taken ; and as the intention is the criterion of guilt, it was adjudged,
a misadventure." So we contend Mr Gadsden was mistaken for
one, who had assaulted one of-the prisoners or Mrs. Toobey; and the
offence is no greater than if the real assailant had been killed.
Thirdly—Where two or more persons are engaged in a contest,
and a friend, servant or brother, either seeing a contest likely to prove
fatal in the day time, or imagining such an one, from the cries of the
parties in the darkness of the night, interferes, and death ensues, it
is only manslaughter.
" Generally speaking if there be an affray, and an actual fight-
" ing and striving between persons, and another run in and take
" part with one party, and kill the other, this is manslaughter; and
" that whether the quarrel between the two were sudden or malici-
" ous, if the party interfering, did not know it to be malicious.",—
1st East, 291, Kel. 61-62. And where the darkness of the night, in-
creases the supposed danger, and any peculiar infirmities of one of
the combatants excites more lively sympathy in the issue, or where
the party interfereing.—" A friend or servant, who have a prior in-
" terest in the safety of the person for whose sake they interfere
Kel. 136—I will add, if he be a brother, who believes his sister in
the delicate situation of Mrs. Toohey, had been rudely assaulted,
both the laws of man and nature, attribute the fatal consequence to
other influences, than t( a heart regardless of social duty, and fatal-
u ly bent upon mischief."
But the nature of the weapon, will be urged as an indication of a
deadly purpose. It will therefore, become necessary for me to bring
to your view, the law relative to the offence of stabbing; and as but
one mortal blow was given, to distinguish between the person giv-
ing the mortal blow, and the other who was present, or even engag-
ed in the contest.
I shall examine the doctrine as it stood at common law, for the
statute has made no alteration in this respect.—But the humanity of
Juries having in some measure, mitigated its rigour, it was revived
by the statute—1st Jas. 1. ch. 8, in order to meet the exigencies of
the times. Short daggers were worn by both Scotch and English,
particularly on the borders; at public-houses contests arose, in which
one of the parlies was frequently stabbed; and to repress this custom
this " Lex. Declarativa, was passed,"—1st Bullst. p. 87-
45
But the common law itself is, and always has been temporizing—
Indeed its pliability is its chief excellence, and bv looking into the
early history of the offence of stabbing, we shall find that the severi-
ty with which that species of homicide was punished, arose from the
same policy, which produced the statute of James. England, in its
earlier ages was composed of a motley population ; and if we could
obtain authentic records of the cases then tried, we should find that
the Saxons, Danes and Normans, in turn gave rise to the necessity
of repressing this mode of contest.—Daggers in former times, were
the weapons of Knights and Soldiers; now they are almost identi-
fied with assassins. But in this State, the frequency of such occur-
rences, does not call for severisy.—Policy does not require Juries,
to adopt any other measure of guilt, than thp mind of the offender.
From this view of the doctrine it will be contended, that so far from
following the sanguinary letter of'the statute, the common law itself,
when modified by the customs ami policy of our own State, doe , not
require exemplary severity against the use of the particular weapon.
But as the construction of the statute is far more severp, than even
the English common Law, it will be contended, even by its pro-
vissions :
First—That the person who actually gives the fatal blow, can
alone be guilty of murder.—" The rigour of the statute is confined
" to the very person stabbing or thrusting, and does not extend to
" others aiding and abetting him."—1st East 247.
Secondly—If the Jury are not positive which gave the mortal
blow, neither is guilty of murder.—'' And therefore, where Welch
" and five others were indicted, (Car 16,) on this statute for the
" death of Swinnerton, because it did not appear upon evidence,
,£ which of them made the thrust; they being all present, thej
li could only be convicted of manslaughter at common law, and had
" their clergy. Neither are there any accessaries within this sta-
" tute."—1st East, 247, ch. 5, Sec. 29. 1st Hale 468—2nd 344—
Fos. 355—Alleyn 44—1st Haw. ch. 30, Sec. 7»
Thirdly—If the Jury shall think from the evidence, that the blow
was given upon a sudden contest, and without any premeditated mo-
tive, then, although the deceased was stabbed, the law is the same ;
and the offence is only manslaughter. c Ail circumstances which
" at common law will serve to justify, excuse or alleviate in a charge
" of murder, have always had their due weight in prosecutions
" grounded on the statute."—1st East ch. 5, Sec. 28.
The next ground which will be taken in the defence, is—That
from all the circumstances of the case, it will appear there
was no premeditation—that there was either an actual or im-
agined injury, inflicted on one or more of the party, before the blow
was given—that the night was dark, and mistakes may have arisen,
and added to all these alleviating circumstances, that the prisoners
had in the innocence of their hearts, taken more liquor than their
heads could bear—but especially, that the excitement of a quarrel
made the fumes of wine more active, and that thus unawares, they
may have exceeded the bounds of due caution ; but neither from/
46,
malice or revenge—and that"some compassion te due to the aoci-
dental infirmity that then beset them. It will not be contended that
one who drinks to inflame his passions, and with a view to a contest
of any kind, can plead intoxication as an excuse. But only that
where one is overtaken with intoxication, and a sudden provocation
arises and he goes too far in his resentment—something is to be as*
cribed to the irritability of his temper, arid his offence partakes less
of malignitv, than if he had been perfectly sober. If one, whose
temper had already been ruffled by outrageous abuse, defamation of
his character or slander against his nearest relatives, should encouh-
ter another, and a sudden quarrel should ensue from a new arid un-
expected cause, his previous state of excitement would extenuate his
offence, if a fatal contest should ensue from what would have been
in his cool moments, a slight provocation. Because it shews absence
of deliberate vengeance, it negatives the imputation of malice, the
event is somewhat attributable to human infirmity—Much stronger
is the case of one who is unawares heated with liquor, and exceeds
the bounds of cool reason.
The law quoted in our books is founded upon a dictum of Lord
Coke, (Co. Lit. 247*)—" As for a drunkard, who is voluntarius
<e daemon, he hath (as has been said) no privilege thereby, but what
u hurt or ill soever he doth—his drunkenness doth aggravate it.—
" Omiie crimen ebrietas et incendit et detegit.—Drunkenness in-
(e flames and discovers every crime !"—It is apparent, that Lord
Coke is more quaint than wise. That drunkenness can aggravate
a crime, is saying, that a man deprived of his reason, is more guilty,
than if he acted deliberately and wilfully.—In truth, the act may be
more aggravated, but the guilt is extenuated—an idcot cannot com-
mit a crime—u furiosus furore solum puni ur"—nay not even trea-
son, guarded as is the throne, bv the bloodiest vigilance.—3 Inst. 6,
1st Hawkins P. C. 2—3 Int. -54.—A drunken man is an ideot,
while under the influence of intoxication. See Cokes 4th species of
Ideocy. Co. Litt. 247. These premises are established on his own
data, and the conclusion is inevitable, that therefore a drunken man
Cannot commit a crime. But this absurdity arises from Lord Coke's
confounding the crime, which consists of the " mala mens"—with the
act—drunkenness inflames the conduct, but it does not aggravate
the guilt—for " guiltiness is the consciousness of crime "—Sidney,
See Johns. And where intoxication is inadvertant, and comes on un-
a wares it is a misfortune, and reason and design being wanting, ma-
ike either expressed or implied, cannot be predicated of an act done
in that state.— But because it is not malicious, it is not therefore,
. justifiable. Every infirmity may more or less be corrected and re-
strained, and therefore, the law punishes only the second offence
with death—for the first it inflicts a mark, which is to be a warning
against its repetition. All then that will be contended on this head
js,t hat if the Jury are satisfied from the evidence, that the quarrel was
sudden, and the intoxication upon an occasion of hilarity, unconnec-
ted with the affray ; they are at liberty to extenuate the guilt of the
accused, from that consideration. Indeed there is no case to the con-
47
fcrary.—Lord Coke quotes Plowden, and by rpferenee to that autho-
rity }t appears to b«ve been a mere argument of counse upon al,
case of prisage. Both the authority, which he quotes, nad Lord
Coke himself, used the doctrine only—argu endo to illustrate a civil
case.
The next point of defence, will be founded on the character of the
perused.— We shall prove that Michael Toohey has for many years,
sustained an unb'e nished character, for honesty, humanity, and
ad the purest affections of the heart. That he had hitherto been an
honest man, a fond brother, a humane master, an indulgent father
and a kind husband.— And as far as his short residence among
us, enables us to prove his character, that Martin Toohey has al-
so maintained a peaceable and good character—that he has been in-
dustrious, and unconnected with riots and quarrels. We shall urge1
that in case of doubt, the former character of the accused, is a
strong circumstance to indicate the true complexion of an act, whose
origin was sudden and unknown, and whose progress is not well as-
certain ed.
To enter further into details would be to anticipate the evidence,
and the argument. Enough has been said to enable you to compre-
bend and apply the testimony to the several grounds of defence.—I
will now proceed to examine the witnesses, on behalf of the prisoners.
MISS AUSTIN, Sworn/f» behalf of the Prisoners.
Examined by William Crafts, Jun. Esq.
I live in the house of Michael Toohey, and was there on the night
and in my room when Mr. Toohey and his brother were taken.
Q.—Were you there, when Michael Toohey went out in the even-
ing ?
A.—I was—when Mr. Toohey returned from turning out, he re-
quested Mrs. Toohey to go out with him, as he wished -to go to the
Meeting—Mrs. Toohey said she did not feel well, and did not wish
to go. Mr. Toohey then said he would not go$ Mrs. Toohey after-
wards consented to go, saying, she did not wish to deprive him of
his pleasure, as it was the request of Captain Gordon, that the com-
pany should assemble at Mr. Galloway's that evening.
Q.—You said that Michael Toohey turned out that afternoon—
how did he appear when he returned home ?
A.—He appeared intoxicated—so much so, that he wa^not able
to put his great coat on, without the assistance of his wife—she was
even obliged to button it up for him.
Q.—Hq,w long have you lived in the family of Mr. Toohey ?
A.---Three years, and four months.
Q.—Is Mr. Toohey much in the habit of going out in the evening
without his wife ?
A.—Mr. Toohey never goes out of an evening without Mrs.
Toohey.
Q.—Has not Michael Toohey become more 'addicted to liquor
latterly, than before ?
48
A.—He has—particularly since the death of his child, last June.
Q.—Has not Mr. Toohey always behaved kindly, to those about
him ?
A.—He has always been mild, tender and humane, to every one
in the house.
Q.—Does he alter his conduct when in liquor ?
A.—When under the influence of liquor, he is more tender than
ever to his wife—when intoxicated, it is his habit sometimes to shed
tears, particularly when his wife is angry with him.
Q —What time did he return from the parade ?
A—About 5 or 6 o'clock in the evening, he took tea, and then
went to the meeting ; Mrs. To.»hey was with him.
Q.—At what time did they return from the meeting?
A.—About half past 9 o'clo-k.
Q.—Did Martin Toohey come with his brother ?
A.—I do not know, as I was gone to bed—when they returned
|klrs. Toohey sent for a blanket and a chair, to sit by him.
Q.—Did you see him return ?
A.-—I did not see him—I only heard him in the passage.
Q.—Mr. Toohey then when in liquor, does not become enraged,
does he ?
A.—The effect of liquor on Mr. Toohey, is to make him good
natured.
Q.—How many young ladies reside in the family of Mr. Toohey ?
A.—There are four besides myself—Mrs. Toohey keeps a millm-
ery store.
Q.—Do you know at what time Martin Toohey came to the house
•f Michael ?
A.—I do not.
Q. Was Michael Toohey intoxicated when he went to the
parade ?
A.—I cannot say—but I am certain he was so, when he re-
turned.
Cros* Examined by the Attorney-General.
Q.—Did not Mrs. Toohey usually assist her husband, in putting
on his great coat ?
A.—She assisted him particularly that night, because he was to®
much intoxicated to do it himself.
Q.—Did Mr. Toohey when intoxicated, never beat his wife ?
A.—His conduct towards his wife when intoxicated, was always
good natured—he never beat her on any occasion, to my knowledge.
Q.—You think that he is generally in better temper when intoxi-
cated,than sober ?
A.—I do.
Q.—When did you see Mrs. Toohey that night ?
A.—Not until she came to bed—I was gone to bed when they
came, I heard them speaking to each other.
Q.— How do you know that a chair was carried out ?
49
A.—I saw it go out in the entry—the chair was in the parlor, down
stairs, and was from thence carried into the yard.
Q.—You said you had gone to bed when they returned—could
you see the chair taken out into the yard, from your chamber ?
A.—I was down stairs when they came home, and when the chair
was carried into the yard.
Q.—Did you hear the voice of any other person, but Mr. and
Mrs. Toohey when they returned ?
A.—I did not, excepting that of the negro wench.
Q.—Was it not a cold night ?
A.—The night was neither very warm nor cold—there was n«
fire in the chimney.
Q.—Did you see Martin Toohey down stairs?
A.—No—I only heard him.
Q.—At what time was it that you heard Martin Toohey's voice
down stairs ?
A.—I do not know, for I had been asleep, and awake again.
Q.— Does Martin Toohey live with Michael ?
A.—He does not—he lives with a younger brother in Meeting-,
street, nearly opposite Mrs. Freans.
Q.—Where were you, when Michael Toohey and his wife
returned ?
A.—I said I was gone to bed, meaning that 1 was in my room,
when they entered the house—I was sitting in the parlour, and as
soon as 1 heard their voices, I took up the child in my arms and ran
up stairs to bed, I did not therefore, see them; but heard them in
the entry.
Q~—Did you see Michael Toohey when he went out with his wife
in the evening—how was he dressed ?
A.—He was in uniform, and had a surtout coat on, buttoned up
tight.
Q.—Did Mrs. Toohey evince any reluctance to accompany her
husband ?
A.—She did not wish to go, but went only to induce him to go.
Question by William Crafts, Jun. Esq.
Q.—What was the conversation you over-heard in the entry, when
Mr. Toohey and bis wife returned ?
A.—1 did not hear precisely, it was my impression, that Mr. Too-
hey was intoxicated, and she was urging him to go to bed.
MRS. LYNCH, Sworn.
Examined by William Crafts, Jun. Esq.
I have lived in the house of Michael Toohey for six years off and
am, five years steadily—I do not recollect the exact time I cornmen-
ced living there, but it was a short time after war was declared.
Q.—What has been the general conduct and behavior of Mr
Toohey in his family ?
<5
50
A.—T never saw anv thine* in 1 m but tenderness and humanity to
all n rlie home. bk"k and white.
O.— Was it not his custom to take his wife along with him, whe»
he spent the evening out ?
A.— He never went out in the evening, without his wife.
Q.—Do you reside there now ?
A.—I do not.
Q.— How many children has Michael Toohey ?
A.—He has had three children, two of which are dead,
Q.—Is Martin Toohev a married man ?
A.—He is also married—he has resided here, about a year and a
half, or two years.
Cross Examined by the Attorney-General.
Q.—How loner is it since you have left Michael Toohey's house f
A.— About three years and six months.
Q.— Have you had any opportunity since you left the house, of
witnessing his conduct towards his wife ?
A.— I have—for I visited them a great deal, he is the same now,
only that he takes a little too much drink, and then he is too good
natured.
MISS A. KUGELY, Sworn.
Examined by William Crafts, Jun. Esq,
I live in the bouse of Mr. Michael Toohey, and have resided
there about eighteen months.
Q.—What is the conduct of Mr. Toohey towards his family ?
A.—He is very kind to every one in the house, black and white,
very kind, and very tender to his wife and child.
Q—Were you not present when Michael Toohey went to the
meeting—what conversation passed, between Mr. and Mrs. Too-
hey ?
A.—When Mr. Toohey asked Mrs. Toohey if she would go with
him, when be ^vas going to the meeting, she declined, saying, she felt
unwell—he then said, he would not uro without her, and she, sooner
than disappoint him, went with him.
Q.—Was not Mr. Toohey in liquor when he went out with his
wife, that evening ?
A.—He appeared to he intoxicated.
Q.—Was not Martin Toohey frequently at the house of Michael ?
A.— He used to be there frequently, he worked there.
Q.—Was Michael Toohey a peaceable, or quarrelsome man ?
A—lie was a very peaceable man.
Q—Where were you, when Mr. and Mrs. Toohey returned that
night?
A.—I was down stairs, when they came, Mrs. Toohey sent in for
a chair, and desired us all to go to bed ; for Mr. Toohey did not like
to be seen by the young ladies, when he was in liquor j and that made*
me think that he was so.
51
Q.—Bid you hear Mrs. Toohey speak to her husband ?
A.—T heard her ask him to come in and go to bed, but I did not
hear him make any reply.
MRS. ANDERSON, Sworn.
Examined by William Crafts, Jun. Esq.
Q.—Have you not resided in the house of Michael Toohey; what
was his conduct generally to those around him ?
A.—I lived in the house six months, during which time, I saw
nothing improper in his character, except that he took a little too
much drink. His habits were always very domestic.
Question by the Attorney-General.
Q.—What was his general character ?
A.—His general character was that of being a mild man, only
that he took a little too much drink.
JAMES WHITE, Sworn.
Examined by William Crafts, Jun. Esq.
1 am a member of the Irish Volunteers, and was present at the
treat.
Q.—Were the Prisoners there ?
A.—They were.
Q.—Were they not both intoxicated ?
A.—My impression is, that Martin was intoxicated, and I believe
he was so when he came there.
Q.—At what time did Martin Toohey leave the meeting ?
A.—He left it about half past 8.
Q.—When did he come to the meeting?
A.—That I cannot say.
Q —Did he drink much while he was there ?
A.—I do not know ; they were both rather disorderly and intru-
sive, which induced me to tell Mr. Galloway, that as strangers were
to be introduced, they ought to be removed.
Q.—Do you not think they were in liquor ?
A.—I have no doubt of it.
Q.—What was the occasion of the meeting of the Irish Volun-
teers that evening.
A.—It was a compliment to the Captain, on his return from the
North and his marriage.
Q.—Had not Michael Toohey resigned as a member of that corps,
previous to this time ?
A.—He had; but he turned out in compliment to the captain
that afternoon.
Q.—Was the corps dismissed on the ground ?
A.—I do not recollect whether it was or not; I am under the im-
pression that it was not.
Q.—Was not Michael Toohey intoxicated that afternoon ?
52
A.—He was somewhat so, but not in a great degree.
Q.—\Vere there any others at the meeting intoxicated ?
A.—The prisoners were the only two 1 observed. I do not think
there were any others intoxicated that evening.
Q.—VVas liquor introduced early in the evening ?
A.—No wine was introduced until the business of the company
was over; and not more than one bowl of Irish whiskey punch,
to my knowledge.
Q.—Did you not meet the prisoners on the stairs, as you were
going up.
A.—I mettheto on the stairs as 1 was going up; Mr. Galloway
was helping Michael on with his surtout.
Q.—Did not Martyi fall down ?
A.—I did not see him fall.
Q.—Did not Mr. Galloway desire them to go home.
A.—I do not know ; i left them in the room; and upon my re-
turn met them on the stairs.
Q.—In what manner was Galloway assistmg Michael, in putting
on his surtout ?
A.—Galloway was holding the coat, whilst he was putting his
arm into the sleeve.
Q.—Did you address them, or hold any conversation with them?
A.—I did not; I merely passed on.
Cross examined by the Attorney General.
Q.—What was the conduct of the prisoners at the meeting ?
A.—Their conduct was intrusive and disorderly.
Q,—In what respect ?
A.—In beiug intrusive and disorderly to the Captain, giving their
opinion and making free.
Q.—Were they loud and riotous generally ? did they curse and
swear ? *
A.—They were talking loud. They were not intrusive to any
but the captain ; I did riot hear them curse and swear.
Q.—Do you think they were so much intoxicated, as not to know
what they were about ?
A.—They were certainly sober enough to know what they were
about, when 1 left them; they remained about twenty-five minutes
afterwards.
Q.—How were they, when they were going away ?
A.—They were then sober enough to know what they were
about.
Q.—Are von acquainted with the prisoners?
A.—i know Michael, but have no knowledge of Martin.
Q. —What is the general character of Michael Toohey ?
A.—I know nothing of his general character.
Q.—Have you not generally heard, that he was a violent man ?
A.—I have heard such of him: he has the character, however, of
being' an industrious man.
53
Q.—Have you not generally heard, that Martin was a man of
violent conduct ?
A.—I have not.
Q.—Haw soon after the company met, did you proceed to bush,
ness ?
A.—The company met at 7 o'clock, and did not proceed to bush-
ness until half past 7.
Q.—What time was the business of the company finished ?
A.—About 8 o'clock, when they began to drink.
Q.—Did they generally drink very freely ?
A.—Time did not allow them to drink very freely, even if they
were so inclined.
Q.—Did you see any others at the meeting, whom you supposed
to be intoxicated, except the prisoners ? •
A.—I did not.
Q.—Had not Michael Toohey resigned as a member of the Irish
Volunteers ?
A.—He had, but not Martin.
Q.—Had his six months elapsed at this time ?
A.—They had not.
Q.—Had not the company paraded before in that month ?
A.—It had ; but this was a special parade, in compliment to the
eaptain.
Q.—When the prisoners went down stairs, did they go without
assistance ?
A.— They did.
Q.—Are not the stairs at Galloway's intricate and dangerous ?
A.—Very much so; a man was killed a short timg ago, by a fall
down those stairs.
Examined by William Crafts, Jan. Esq. in reply.
Q.—What do you mean by their being intrusive ?
A.—I mean they were too good humoured; giving their opinion,
and otherwise making free with the captain.
Q.—Are not liquors very profuse at your meetings ?
A.—They were so formerly, but not so now; the bar-room is next
to the room where the meetings are held ; and any one might go
there and drink at his own expence if he chose.
Q.—Look at these bayonets; do you perceive any difference in
them from others ?
A.—I do not know them particularly from others.
Q.—Had the prisoners bayonets on when you saw them at the
meeting ?
A.—I did not observe.
Q.—What kind of bayonets are those ?
A.—They are English bayonets, such as each member of the
corps has.
Q.—Is the bayonet which you have in your hand sharper tha*
those generally worn in the corps ?
A.—I think it is; it has the appearance of being ground.
54
Q.—Have you examined the bayonets in the corps particularly ?
A.—I have never examined them particularly; only from the ap-
pearance, I would take this to be ground.
Q.—Is it sharper than the others generally are ?
A.—It is.
Q.—Where are the bayonets of the company; have you any of
them ?
A.—I have not; they are in possession of lieutenant Cassin.
JOHN TURNER, Sworn,
jExamined by Benjamin Faneuii. Hunt, Esq.
On the night of the 21st of December last, I shut up my shop at
a quarter before 10 o'clock, the drum had past. A young man came
in and told me, that there was a Mr. Cassin stabbed in the market.
I immediately said to Mr. Adicks, a gentleman who boards in the
same house with me, Mr. Adicks, as you are a sensible man, you
had better step down to the market and see what is the matter ; he
went, and it was not long before he returned and toid me, it was a
Mr. Gadsden that was stabbed, and that it was reported, that two
of the Toohevs had done it; I went next door to the house of Mar-
tin and Patrick Toohey, and rapt at the door ; Martin's wife asked
whose there, I told her it was me, John Turner ; says she, Mr. Tur-
ner, I am stript and in bed. She called to Patrick Toohey, her bro-
ther-in-law, he came to the door and asked me what was the mat-
ter; I said I have bad news for you ; what's it says he ! says I, I un-
derstand there is a gentleman stabbed in the market, and they say
two of the Too hey s hate done it; says he, it is not mc, for I have
been in mv stort* since night-hill; then savs I, it must be Michael
and M artin, and if so, he after them, and tell them to clear them-
selves if they are guilty. I went into the room and saw Martin
Toohey fast a sleep and in bed, drunk ; he looked like a sleeping
drunkard ; the room appeared as if he'had been vomiting. I saw
a bayonet on the floor, found it was Martin Toolieys, I examined it
to see if there was blood on it, but found none ; his uniform clothes
were scattered about the floor; this was just before 10 o'clock; I slapt
him on the shoulders; he felt all over soft just like an eel; his brother
said it was no use to wake him, I said I would, if he had life in him ;
I then shook him 'till the very teeth chattered in his head ; after
about five or ten minutes, he awoke ; I put my hand under his neck
and rolled him out of the bed on the floor. Pat, come here, says I, we
then held him between us, while I put on his pantaloons, it was dirty
nankeen ; says I, these are too thin for him if he has to take to the
woods to night, and I then put on a dark pair over them; when 1
roused him, I told him of the charge made against him.
Q.—Did he then make any confession ?
A.—No; he only said, if I was not the man I was, he'd knock
me down ; at last I frightened him, that he could make out to stand.
I advised him to take his gun and put on a light coat, his working
coat, and if he was guilty to clear himself, but if he was innocent to
remain where he was.
55
Cross examined hy the Attorney-General.
Q.—Did you advise him not to put on his uniform coat ?
A.—I did so ; his wife gave me a light colored waistcoat which he
put on.
Q.—Did you advise him to arm himself?
A.—I told him to take his gun and go in the woods if he was
guilty, as I did not wish to see more than one life lost.
Q.—Did he then leave his house ?
A.—He did, he said he would go to his brothers; I advised him
not to go there; he went as far as Mr. Quin's, at the corner ©f 13ou»-
dary-street, and from thence to his brothers.
Q.—Where did you leave him ?
A.—I left him at his own door.
Q —When you left him could he walk.
A.—fie could, he was quite sober.
Q.—At what hour was this ?
A.—It was near 11 o'clock.
Q.—You found great difficulty in arousing him, did you not?
A.—I did ; I shook him with great violence.
Q.—Did he first say to you, that he would go to his brothers?
A.—He muttered out something that he would go to his brothers ;
it was not decisive.
Q.—Did you not advise him to escape ?
A.—I told him if he was guilty to clear himself for the woods,
if not, to remain where he was ? at first lie did not seem to under-
stand me ; at last he did, and then asked me to drink.
Q.—Was there liquor in the room ?
A.—There was a decanter of gin on the table—I did not drink.
Q.—Did you advise him to go in uniform ?
A.—I told him, if he did go, to carry his gun with him like a
fowler, but not in uniform.
Q.—Did you advise him to carry his wife with him?
A.—I did not.
Q.—Where did you see his clothes ?
A.—They were scattered all around the room, lying in all di-
sections.
Q.—Could he stand after you rolled him out of the bed ?
A.—He could not even sit without support.
Q.—What coloured pantaloons had he on when he was going
parade ?
A.—He had on white.
Q.—Did you dress him in any of his uniform cloths ?
A.—I did not except his boots: ,his wife handed me the two pair
of pantaloons I put on him; one of them seemed nankeen, old and
dirty.
Q—Did you see his uniform pantaloons about the room.
A.—I did not.
Q.—What occurred afterwards ?
A.—His brother came to the door with me, to see if aay thing
was stirring, whilst Martin Toohey was preparing to go.
56
Q.—What preparations did he make ?
A.—He took his gun two or three times in his hand I lost sight
of him afterwards, by reason of a stairs that goes up to a school
room above, between where he and I were.
Q.—Did you not know that it was a crime to advise him to escape ?
A.—I knew it was a crime to give such advice, but as a neigh-
bour, I thought it mv duty to apprise him of his danger.
Q.—Was Martin Toohey sober when he went to the parade ?
A.—He was perfectly so j I do not know how he was when he
•arae back.
Examined by Benjamin Faneuil Hunt, Esq. in reply.
Q.—Where did you leave Martin Toohey standing when you
went away ?
A.—I left him standing at his door.
Q.—Do you know whether he went to his Brothers' or not ?
A.—I do not, I heard nothing of him until next day, I heard
he was in prison.
Q.—How did he appear, after you informed him of the charge
made against him ?
A.—It seemed to make him come too.
Q-—Did he shew any signs of conscious guilt ?
A.—None except coming too so fast.
Q.—What did you say to him ?
A.—I told him it was the public report through town, that the
man was murdered by the Tooheys : at first he wanted to strike me.
Q.—You did not see his uniform pantaloons particularly ?
A.—I did not notice them in particular.
Q.—Do you think he could have secreted any thing ?
A.—I do not think he could have had the power to have done so:
his naked bayonet lay on the floor ; there was a candle burning in
the room, and all in bed, when I went.
Q.—Do you know the character of Martin Toohey ?
A.—As long as he has lived near me, I have never seen any
thing but industry ; he lost no time, and was an industrious me-
ehanic. I was acquainted with the parents of the Tooheys in Ire-
land j they were honest industrious farmers.
Q.—Have you ever heard any thing against them ?
A. Never.
Q. Have you ever known either of them to have been in a quar-
rel or broil ?
A.—Never.
I. C. MOSES, Sworn.
Examined by Benjamin Faneuil Hunt, Esq.
Q.—Are you acquainted with Michael Toohey, and what is his
character.
A.—I am acquainted with him, and always considered his char-
acter a very good one.
Q.—Have you ever heard any thing against him ?
57
A,—I have never heard anything against him,'previous to thii
affair. He pursued his avocations with honesty and industry, a*
much so as any man in this community-,
q, Have you ever heard of his being a turbulent; boisterous; or
iii tempered man ?
A.—I have never heard suoh a character of him.
Cross emmned ty the Attorney General,
q.^IIow long have you been acquainted with him ?
A,—I have known him about three or four years j I knew him in
the way of business; having had frequent dealings with him,
Q,^\\rere you in the habit of visiting him ? Do you know any
thing of his domestie character ?
A,—I have never been in his house; and know nothing of his do«
mestic character, „
Q^llave you never heard of his being a quarrelsome man r
A,—Never; not even of his ever having had a quarrel, until this
unfortunate affair,
Examined by Benjamin Faneuil Hunt, Esq, m rephj.
J Q.—Have you not seen as much of Michael Toohey, as of any
man; whase house you were not in the habit of visiting ?
A, i have 5 and consider him a peaceable; honest, industrious
and upright man,
Q^llave you ever been at his house ?
A.—-I have been in the habit of going there to receive money j
his wife keeps a millinery store, and has several young ladies about
*ieQ,«,4lave you ever heard any thing respecting his domestic char-
ftQtQf ^
A ,.,4 have alwava heard that hi was a good father of a family,
Q.'—Aie you acquainted with his neighbours ?
A,-4 am not particularly, but I think I would as soon as any
man, henr any thing against his character,
BARTHOLOMEW CARROLL, Sworn.
Ewmimtl by Benjamin Fanewl Hunt, Esq.
Q,-~Ar@ you acquainted with Michael Toohey ?
A,—I was acquainted with him before 1812,
Q,-~What is his general reputation ?
A^yrry good j he was an "industrious man? I have never heard
any thing against hint'
Q,«™\Vhat is the general character of Martin?
A,„,yty knowledge of him is very limited \ he worked for me a
short time as a carpenter $ he appeared simple, not much acquaint-
cd with the woiid,huyiu'te industrious,
53
THOMAS NAPIER, Sworn.
Examined by Benjamin F'aneuil Hunt, Esq.
Q.-—Are you acquainted with Michael Toobey ?
A.—I have known him since 18IS, probably a little before.
Q.- -What is his general character ?
A—I have always found him a correct man in business ; I have
never heard any thing against him previous to this affair; T was not
acq 'ainted with his beginning in life, but he had gained a very re-
spectable credit.
Q.—Were you not in the habit of seeing him frequently ?
A.—I frequently saw him as a man of business, and always found
him correct and honorable; I probably saw him three or four times
a week. , .
Question by the Attorney General.
Q.—Have you never heard any thing against his character ?
A.—I have never heard his character called into question one
way or the other.
MYER MOSES, Sworn.
Examined by Benjamin. Faneuil Hunt, Esq.
Q.—Are you acquainted with Michael Too hey ?
A.—-I have known him for a length of time. At the close of the
late war, I had considerable dealings with him, and my confidence
in him was such, that I used occasionally to indorse his notes for
him.
Q.—Did he generally bear the character of a violent or turbulent
man?
A.—He did not; had he borne such a character, I must have
known it ; as he always consulted me concerning his transactions ;
I have always remarked him at vendue, as unusually mild and fond
of a joke ; and the v endue is a place, where a man would at times,
have his temper excited.
T110M AS FLEMM1NG, Sworn.
Examined by Benjamin- Faneuil Hunt, Esq.
"Q.—Ate you acquainted with the prisoners at the bar.
A.—I know them both ; I knew Michael five or six years, the
Other not so long.
Q.—What is the general character of Michael Toobey ?
A.—Hi j character is that of a peaceable citizen ; 1 live/near him
and have always found him a punctual and good citizen/
Q.—Has he not in the community always maintained an upright
character ?
A.— He has, as far as I know; I never heard any thing against
him until this affair. „
Q.—What is the general character of Martin Toohey ?
59
A.—I have always considered him a quiet industrious young
man.
Q.—Have you ever heard of either of them being in broils or quar-
rels ?
A.—Never; they both maintained the character of peaceable ci-
tizens.
Q—Did you see them frequently ?
A —I was as much in the habit of seeing them as any one: I was
in the hahit of seeing him daily. I was shocked when I heard of
this transaction, as much so, as if any other two respectable citizens
had been charged with the offence.
Question by the Attorney General.
Q.—Are you intimate in the house of Michael Toohey ?
A.-r-l have been in his house on business ; I knew his wife.
MICHAEL KELLY, Sworn.
Examined by Benjamin Faneuil Hunt, Esq.
Q.—Are you acquainted with the general character of Michael
Toohey ?
A.—I am; and always understood him to be a man of good repu-
tation, until this unfortunate transaction ; he has always borne the
character of a man who always demeaned himself well in the com-
munity; I knew him personally, he has always conducted himself
well.
Q.—Was he not a member of the Irish Volunteers, when you
commanded them ?
A.—He was.
Q.— How did he usually conduct himself at the meetings?
A.—Always well, rather playful thau quarrelsome.
Q.—How long have you known him ?
A.—About four years.
Q.—Have you ever heard any thing against his character as a
peaceable man ?
A—I never have; he bears in the community the character of an
honest man, a good father, and an upt ight citizen.
Q.—.What is his domestic character ?
A.—It has always been good ; be is considered a respectable
head of a family.
Q.—Are you acquainted with Martin Toohey ?
A.—Not at all.
Cross examined by the Attorney-General.
Q.—Do you visit in the family of the prisoners ?
A.—I am not on visiting terms with either; 1 was never in either
of their houses.
Q.—Have you ever heard any thing against the character of Mi-
chael as a peaceable man ?
60
A—Ihave never beard any thing for or against his character
in that respect.
Question by Benjamin Faneuil Hi nt, Esq.
Q—Was he ever considered a turbulent man ?
A.—He was not; he was always considered a peaceable man,
and a peace-maker in the company j he was always disposed to
conciliate the members.
FREDERICK WESNER, Sworn.
Examined by Benjamin Faneuil Hunt, Esq.
Q.—Are you acquainted with the prisoners at the bar ?
A,—I am acquainted with both ; with Michael almost since he
has been in Charleston.
Q.—What is his general character ?
A.—As far as came to my knowledge, he was a peaceable quiet
man.
Q.—Have you ever seen any thing in him, that would lead you
to suppose he was not as peaceable as people generally are ?
A.—I have not.
Q.—Are you acquainted with any one that might know hb ge-
neral character ?
A.—I am not.
Q.—Do you think he was a man of that description likely to get
into broils and quarrels ?
A.—I think not; since this affair, I beard that the loss of a child
had affected him very much. From the knowledge I have of his
general reputation, I was very much shocked at hearing of hb be-
ing charged with murder.
Q.—Are you acquainted with Martin Toohey ?
A.—I am; he worked a considerable time with me as a Journey-
man Carpenter; hb deportment was that of a quiet industrious
man.
Q.—How long have you been acquainted with him ?
A.—Since the winter of 1816.
Q.—Is he married ?
A.—I understood he married, since he came to this country.
Q.—Have you ever heard any thing against him ?
A.—Never until this affair.
Questions by Benjamin Faneuil Hunt, Esq.
Q —Have you ever heard his general character called in question?
A.—I have not.
Q.—Was lie working for you a short time previous to the mur-
der ?
A.—He left me some time before, to work for his brother; I do
not know if he lias been employed by any body since.
Questions by the Attorney-General.
Q.—How long was Martin Toohey in your employ ?
61
A.—About four or five months.
Q.—Were you in the habit of visiting Michael Toohey ?
A.-'Never; I used occasionally to meet him standing at his door ?
JOHN R. CLEARY, Esq. High Sheriff, Sworn.
Examined by Benjamin Faneuil Hunt, Esq.
Q.— Are you acquainted with Michael Toohey ?
A.—I have been acquainted with him a number of years ; his
character is that of a peaceable, upright and orderly man.
Q.—Have you not had an opportunity of judging of his char-
acter ?
A.—He resided some time in my neighbourhood, and think I
have had an opportunity of judging of his temper and character ;
I thought that he would be the last man who would ever be brought
here on such a charge.
SAMUEL OSBORNE, Recalled.
Examined by Benjamin Faneuil Hunt, Esq.
Q.—Have you not had an opportunity of judging of the char-
acter of Michael Toohey ?
A.—I have had]; he is a neighbour of mine.
Q.—What is his character?
A.—It is that of an industrious peaceable man.
Q.—Was he quarrelsome in the neighbourhood ?
A.—I have never known him to quarrel with a neighbour or any
other man.
Q.—How long have you resided in his neighbourhood ?
A.—Between three and four years.
Q.—Have you ever seen him in a passion ?
A.—I have never seen him much irritated or in a passion; I have
never seen him have any cause to be irritated.
Q.—Have you ever seen him on parade : how has he generally
conducted himself there ?
A."-1 have seen him frequently, he has always conducted himself
well, and done his duty to the letter.
Cross Examined by the Attorney General.
Q—Were you in the habit of visiting Michael Toohey ?
A.—I was not so intimate as to visit him.
Q.—Was he not sometimes quarrelsome?
A.—From what f have seen of him, he appeared uncommonly
peaceable, not quarrelsome.
Q.—Have you ever heard any thing against him ?
A.—I have not, with the exception that I did hear one person say
he was hasty, that was all I have ever heard on the subject of his
temper.
62
JOHN HEFFEI7NAN, Sworn.
Examined by Benjamin Faneuil Hunt, Esq.
q.— A re you not a neighbour of Michael T . ey's ?
A --I a in.
Q. -Do you know any thing concerning him ?
A.—He is a peaceable neighbour; he has a family consisting of a
wife a child and several young ladies, who are apprentices o Mrs.
Toohey ; she is a milliner : he has always demeaned himseii as a
peaceable good man.
Q. — Were you at the meeting of the Irish Volunteers on the
evening of the 21st of December.
A—I w as.
Q.— Did you seethe prisoners there, and what was their condition?
A.—T saw them both there ; they both appeared tipsey.
Q.—Were vou in the room when the news of the murder carne in ?
A.—I was; I immediately went down in the street; I saw Mi-
cbael Toohey and his wife standing together : she had him by the
arm; he had on a surtout coat, and was apparently in liquor.
Q.— Did you see him with a belt on?
A. ---I could not, because his surtout was buttoned close up.
Q.—What was his wife doing with her arm about him ?
A.—She was urging him to go home.
Q.—Did he recognize you ?
A.—He cid not at first, although in the daily habit of seeing me,
until his w ife told him, that 1 was a child of his neighbour, then he
knew me, audi advised him to go home.
Q.—Was he not very much intoxicated ?
A.—So much so, that his wife was obliged to lead him.
Q.—Did Michael Toohey and. liis wife appear conscious of any
thing having happened ?
A.—They did not.
Q.—Did not a number of persons gather around them ?
A.—A number of persons collected as well around them, as near
the lamp-post.
Q.—Did you see them go off ?
A.—I did ; I saw them go towards their home ; he staggered :
Mrs. Toohey was supporting him.
Q.—Did you follow them home ?
A.—I did not.
Cross examined by the Attorney General.
Q.—In what manner was Mrs. Toohey supporting her husband?
A.—She held him by the arm with one hand.
Q.—How did he walk ?
A.—Not very very well; he staggered a little.
Q.—Did he walk fast ?
A.—Not very fast, as fast as usual.
Q.—Was any one else helping him ?
63
A.—None else.
Q.—Did you hear him make any exclamation P
A>—I did noi.
Q.—.Did you see Martin Toohey there ?
A —t did ; but took no particular notice of him.
Q.—H ow did he appear ?
A.—Both of the Tooheys were intoxicated, as well in the room
as in the street ?
Q.—Were they so much intoxicated as not to know what they
were about ?
A.—They did not appear to me to know what they were about;
I think they appeared more intoxicated in the street, than in the
room.
Q.—Did Martin Toohey appear more particularly intoxicated in
the street than before ?
A.—1 did not remark.
Q.—Which of them appeared most intoxicated in the room?
A.—I do not know j one appeared as much intoxicated as the
other.
Q.—Were they noisy or riotous in the room ?
A.—They were not.
Examined by Benjamin Fane oil Hunt, Esq. in reply.
Q.—Are not the bayonets in the company generally as sharp-
pointed as these you now see ?
A.—They are.
LAWRENCE RYAN, recalled.
Examined by Benjamin Faneijil Hunt, Esq.
Q.—Are you acquainted with Michael Toohey ?
A.—I have known him for many years j I always knew him to be
a steady well conducted young man.
Q.—Have you not always known him to be a very peaceable
man ?
A.—I have considered him so$ he was not a quarrelsome or noisy
man; I knew him in the company for many years.
Q.—Was he not considered among the members, to be a very re-
gular man ?
A.- -He was always so considered.
Cross examined by the Attorney General.
Q.—Were you in the habit of visiting Michael Toohey ?
A.—I was not 5 f may have gone into his store.
Q—From whence then do you derive your knowledge of his
character ?
A—From belonging to the same company and church with him.
Q.—Have you never heard of his being a violent man ?
A.—I have not j I saw him once or twice irritated in the eompa-
nv, but it was nothing of any consequence.
64
THOMAS F. QUIN, Sworn
Examined by Benjamin Faneuiu Hunt, Esq.
Q,—Did you see Martin Toohey on the evening of the 21st
of 'December last, previous to the meeting ?
A.—I did ; I saw him standing at his own door; he bad his belts
on, and was iri uniform—He asked me if I was going to the meet-
ing. I advised him to take his belts offj he said the order was for
the members to appear in side arms.
Q.—Was he sober ?
A.—He was not.
Question by the Attortey-Gbneral.
Q.—At what hour was this ?
A.—About half past 7 o'clock.
It being now after 7 o'clock at night, at the request of the gen-
tlemen concerned in the case, the judge adjourned the court until
10 o'clock the next morning, after recapitulating to the jury the
observations he had made to them the day previous.
Thursday Morning, January 28, 1819—10 o'clock.
The Court met pursuant to adjournment and proceeded in the
cause.
PATRICK TOOHEY, Sworn.
Examined by Benjamin Faniuil Hunt, Esq.
I am the brother of the prisoners, and reside with Martin \ I
was at home on the night of the 21st of December last.
Q—Were you at home when Martin returned that evening ?
A.—I was—lie was very much intoxicated when he returned, be-
came very sick before he went to bed j so much so, that I was
obliged to undress him, and put him to bed. i
Q.—What did you do with his military pantaloons you took off
him ?
A."-1 threw them on the floor with the rest of his clothes, as I
stript him.
Q.—Did he give you any account of his having been in an affray ?
A.—He did not—he did not appear to have been in one.
Q.—Did he sit up any time after he carne home?
A.—He did not; I took off his clothes, put him to bed, and then
went t.j bed myself.
Q.—Where was Martin's wife ?
A.—She was in bed.
Q—7)id you leave a light burning in the room.
A.-~I did ; because Martin and his wife were both sickj Martin
was s Mek m to he continually vomiting.
Q —V-' .-at occasioned you to get up. ?
A.—l wrj called by Mrs. Toohey, Martin's wife.
65
Q.—Did you hear Turaer knock at the door ?
A.—I did not hear when he first knocked at the door; Mrs. Too-
hey called to me, saying, some one was at the door wishing to see
me.
Q.—Had you any suspicion at that time, that your brother had
done an3r thing ?
A.—I had not the least; the first intimation I had, was Mr. Turner's
coming in and saying there was a man killed in the market, by the
Tooheys. Mr. Turner immediately came in and attempted to
awake my brother; he told me first to wake him ; I replied to him
that he was too drunk, he could not stand. He insisted on his be-
ing awaked; he then went and shook him very hard, he was very
fast asleep. Mr. Turner took him by the legs, pulled him out of
bed, and told him he was charged with murder; my brother first
got up as well as he could ; Mr. Turner put on his pantaloons and
a grey coat.
Q.—What coloured pantaloons were they ?
A.—The same he had worn the day before; they were perfectly
black.
Q.—Had he his belt and bayonet on when he came home ?
A.—He had.
Q.—Did you take them off, and what did you do with them ?
A.—I took them off and threw them carelessly together with his
clothes on the floor.
Q.—Was the bayonet in the sheath, when you took it ofif?
A.—It was.
Q.—Did you pull the bayonet out c^the sheath ?
A.—I did not; Mr. Turner brought to the gate, and then went
to his own house.
Q.—Did your brother leave his house armed ?
A.—He brought out his musket and and bayonet with him ; the
belts were put on by Mr. Turner, before he left the house ; his wife
and myself went with him; after he got a few paces from the door,
he wanted to go back again, saying that Turner was only making fun
of him; I induced him to proceed; he went up as far as Boun-
dary-street; he would not jgo further,, said he would return and go
to Michael's ;-we then went up Boundary-street and turned down
King-street to Michael's ; we found Michael in the yard by himself,
his wife in the house, and a wench making fire.
Q.—In what state did you find Michael ?
A.—He was tipsey ; I was at him a long time to arouse him.
Q.—Had he a blanket around him ?
A.—He had not; he had his uniform clothes on under his surtout;
I got him into the house, and all of us sat around the fire ; I then
told them what Mr. Turner had said ; none of them would believe
it, which made me quite easy on the subject. After telling them
the whole, they said, it was no such thing; we then dropped the
conversation, and talked about something else.
Q.—-Did Michael continue in the same dress you first saw him
in ?
I
66
A.—Yes he did; and Martin remained in the same dress Mr-i
Turner put on,at his own house ; he continued to wear his belt and
bayonet.
Q.—When the officer of the guard knocked at the door, did it not
occasion considerable alarm to all the company ?
A.—It did so.
Q.—Were you there any time before the guard came ?
A.—We had sat a considerable time before they came.
Q.—Were your brothers still intoxicated ?
A.—They had recovered very considerably from it.
Q—When the officer knocked, who went to the door ?
A.—1 went—when the guard came with the papers, I was so
agitated, I could not tell what they said—the Lieutenant then read
the paper to them, Michael stated precisely to Lieutenant Fell, what
he has deposed in evidence.
Q.—Did you see Martin go up stairs ?
A.—I did.
Cross Examined by the Attorney-General.
Q—How long after you got to the house of Michael, was it be-
fore the guard came ?
A.—More than an hour.
Q.—When did you leave your own house ?
A.—Immediately after Mr. Turner left us at the gate.
Q.—Was Martin armed, when he went to Michael's ?
A.—He was—he carried his musket with him, the same one he
always paraded with.
Q.—Did he take any amunition with him ?
A.—He did not—he had none.
Q.—Did he load the musket ?
A.—He did not.
Q.—Was the wife of Martin with him ?
A.—She was—she went with us to Michael's.
Q.—Where did you all intend to go?
A.—We were going into the woods, but when we got as far as
Boundary-street, he would not be persuaded to go any further ; we
then went round to Michael's.
Q.—What did you intend toN3o ?
A.—His wife and myself, intended to stay with him that night.
Q.—Where was he to go after that night ?
A.—I do not know—I intended to have left him in the woods, re-
turned to town and hear what was said next day.
Q.—Was your brother Martin, when he returned home, able to
stand ?
A.—He was so intoxicated I had to lift him off his chair, to un-
dress him.
Q.—When you got to Michael's, where was he.?
A.—He was in the yard lying on his face.
Q —Where was Michael's wife ?
67
A.—She was in the house, getting a fire to warm herself ; she wa£
sick.
Q.—Had Michael a blanket over him?
A.—He had not—he had a great-coat buttoned up, he was fast
asleep.
Q.—Did you awake him ?
A.—I did-—but with great difficulty.
Q.—Was it a cold night ?
A.—The night was not very cold, though it was very dark.
Q.—Did you hear Martin ask Turner, to drink gin with him ?
A.—I did not-—-I saw no gin there, there was no liquor any where
but in the store.
Q.—Did Martin go into the store ?
A.—He did not.
Q.—Are you positive of that fact ?
A.—I am—he did not go into the store, after his return from the
meeting.
Q.—Do you keep liquor no where else but in the store ?
A,—There was no liquor in any part of the house but in the store.
Examined by Benjamin Faneuil Hunt, Esq. in reply.
Q.—Did you see any cause why Mrs. Toohey did not remain
with her husband in the yard ?
A.—I saw none, unless she got too cold and went in to warm her-
self—she was just making up a fire.
Q.—Did Martin drink after he returned home ?
A.—He did not drink a drop.
Q.—Did he walk into the house ?
A.—No-—he staggered in.
Q.—Did you see him in the yard ?
A —I did not.
Q.—When did he get sick ?
A.—While I was pulling off his clothes.
Q.—Did Mr. Turner offer to go in the woods with you ?
A.—He did not—he only advised Martin to go.
Q.—Did Martin after he left his hoqse, appear to go willingly r
A.—Quite the contrary—he was very refractory ; and persisted
In returning; on getting to Boundary street he would go no further;
We went to Michael's to see if he knew any thing about it.
JAMES GALLOWAY, Sworn.
Examined by Benjamin Faneuil Hunt, Esq.
Q.—Do you recollect the 21st of December last, when Michael
and Martin Toohey left your house ?
A.—I recollect assisting Michael in putting on his surtout.
Q.—Was it buttoned ?
A.—It was buttoned up close.
Q.—Did you not send a message to him, that his wife wanted hiai?
68
A.—I do not recollect, whether I sent the message or carried it
myself.
Q.-—Was he so much intoxicated as to require your assistance in
putting on his surtout ?
A.—I think he was.
Q.—Did they appear to be irritated when they left your house ?
A.—By no means—they appeared directly the contrary ; they
were very affectionate, calling each other brother—an appellation I
never heard them make use of before.
Q.—Was Martin intoxicated ?
A.—He was—he staggered down stairs ; I cautioned him about
Hie stairs, as they were very bad.
Cross Examined by the Attorney-General.
Q.—Do you think Martin was so intoxicated as to need your
caution ?
A.—I do—that was my reason for cautioning him.
Q.— Did you assist him in getting down stairs ?
A.—1 did not—I was very anxious to get rid of him, as he was.
rather troublesome, being the most tipsey of the two.
Q.-—Was Michael very tipsey ?
A —He was more so than usual.
Q.—Do you think they were so much intoxicated as not to know
what they were about ?
A.—I think they both knew very well what they were about—
I was the last person that addressed them, on leaving ' the
door.
The testimony here closed on the part of the prisoners.
ROBERT WALL, Sworn—on the part of the State, in reply.
Examined by the Attorney-General. ,
Q.—Are you a member of the Irish Volunteers, and did you pa-
rade with them on the afternoon of the 21st of December last ?
A.—I am—-and paraded that afternoon.
Q.—Were you placed in the ranks near the prisoners ?
A.—I was, part of the time.
Q.— Did you hear Martin Toohey say any thing?
A.—I heard him utter some imprecations.
Q.—Against whom ?
A.—Against no one in particular 3 it was general—he swore an
oath.
Q.—What did he say ?
A.—I heard him say, some one had come to the right place to be
served.
Q.—Did Michael say any thing ?
si.—Fie said something about some person demanding satisfac-
tiou, and then going av/ay—Martin replied the man was right in
going away.
69
Q.—Did their manner attract your attention ?
A.—It did.
Q.—Were they angry ?
A.—I cannot say if they were so or not—one of them said a man
had come for satisfaction, and had gone awav : the other said he
was right, he could not have come to a better place to be served.
Q,—Did you hear Michael swear?
A.—I do not recollect that I did, I only heard Martin swear—
positively. '
Q.—Were they speaking loud ?
A.—Not very loud—they were in the ranks.
Cross Examined by Benjamin Faneuil Hunt, Esq.
Q.-—Did you conceive, that they were conversing as if they had
revenge, or intended to execute it against any individual in the
world ?
A.—That was not my impression ; it appeared to be nothing but
a mere narrative from one brother to the other, about the affair
with Mr. Marks.
Q.—Did it make any impression upon you that either of them in-
tended to get satisfaction from Marks ?
A.—It did not—It simply appeared, that Marks had come to them
for that purpose.
Q.—Did you see the face of Martin Toohey ?
A.—I did not.
Q.—Did it appear to be a private conversation between them ?
A.—Not at all, it was an open conversation.
Q.—Was there any thing in their conduct that attracted particu-
lar attention towards them, from any other part of the ranks ?
A.—Nothing.
MRS. NICKS, Sworn.
Examined by the Attorne y-General.
Q.—Are you acquainted with Michael Toohey?
A.—lam—I have been a neighbour of his in King.street, three
or four years.
Q,—Do you know if he is a vindictive, turbulent man ?
A.—I do not—1 have no acquaintance with him.
Q.—Do you know any thing of his domestic character?
A.—As far as I know, he was always considered a quiet, peacea-
ble man j I know nothing to the contrary.
JAMES BEGGS, Sworn.
Examined by the Attorney-General.
Q.—Are you acquainted with Michael Toohey ?
A.—I am—he has been a neighbour of mine for some years.
Q-—Do you know whether Michael Toohey is a violent, vlnclio
live man or not ?
TO
A.—I do not—I have heard it reported so.
Q.—rWhen ?
A.—Both before and since the murder.
Q.—Was this a general report ?
A.—It was not—It was only whispered about.
Q.—Is Michael Toohey a good neighbour ?
A.—He is as good a neighbour, as I would wish to live by.
Q.—What character does he bear in his family ?
A.—I believe he bore a good character in his family, I never
heard any thing to the contrary ; he^appeared always kind to his
wife and children.
Q.—Do you know any thing to the contrary of his being kind to
his wife ?
A.—I do not—I heard it reported that he was not kind to his wife.
Q<—Was it generally reported so ?
A.—I don't know, whether it was general or not; I heard of only
one particular act, which Mrs. Toohey denied.
Q-—Was it a general report in the neighbourhood ?
A.—I can't say—I heard it from more than one, but not from more
than two or three.
Cross Examined by Benjamin Faneuil Hunt, Esq.
Q—What is his general reputation, as the father of a family ?
A.—As good as any man in the community—except one surmise
or two against it; he is reported a mild, peaceable man, and very
kind 10 his children.
WILLIAM GILLILAND, Sworn.
Examined by the Attorney-General.
Q.—Are you acquainted with M ichael Toohey ?
A.—I am—he has been a neighbour of mine, seven or eight
years ; I have known him perhaps four or five years.
Q.—What is his general character ?
A.—I do not know, I never made a neighbour of him j I always
thought him a man of hasty temper.
Q.—Did you ever see him engaged in any broils or quarrels ?
A.—Never—In all my dealings with him, I have always found
Itim an honest, upright and industrious man.
Q.—Had you many transactions with him ?
A.—I had not—I did not wish to have much to do with him.
Q.—Why ?
A.—On account of some rumours against his domestic character.
Q.— Was this a general report ?
A.—It was generally reported in the neighbourhood, that his do-
rnestic character was not good.
Cross Examined by Benjamin Faneuil Hunt, Esq.
Q.—What did the report you speak off, relate to ?
A.—It related to two or three particular domestic transactions.
71
Q.—Was his general character such, as to render him remarkaoie
for being a quarrelsome man ?
A.—Not more so, than any other man in the community.
Q.—Were not some of his neighbours fond of him ?
A.—I cannot say whether they were or not.
Q- Were such reports you speak of, confined to circumstances
arising within his own house ?
A.—They were.
Q.—Were you ever in his house ?
A —Never.
Q.—Do you know any thing of the truth, of those domestic
reports ?
A.—I do not.
ELEAZER REED, Sworn.
Examined by the Attorney-General.
Q.—Are you acquainted with Michael Toohey ?
A.—I am—he has been a neighbour of mine, about a year.
Q.—Had you any opport unities of observing him, during that time?
A.—I had frequent opportunities—I saw him almost every day ;
and many times during the day. From my own observation, I have
always supposed him to be a hasty man—not a quarrelsome one.
Q.—Have you not heard that opinion generally expressed in the
neighbourhood ?
A.—I have.
Q.—Have you not heard it reported in the neighbourhood, that
he was not kind in his domestic concerns ?
A.—I have—but had no opportunity of forming an opinion on this
point, from personal observation.
Q.—From your own observation, you obtained the knowledge
of his being a hasty man ?
A.—From that and from general report in the neighbourhood
also.
Cross Examined by Benjamin Faneuil Hunt, Esq.
Q.—Did you think that he was not an amiable man jn his family;
from your own observation or from general report ?
A.—From the report of a few persons.
Q.—Did you ever hear of his being a vindictive, violent man ?
A.—-Never.
Q.—What do you mean by his being hasty ?
A.-—I mean that he was apt to get into a passion for trifles.
Q.—From your observation, was his character for irritability more
remarkable than that of other persons ?
A.—Not more than people ordinarily are—-Mr. Croft has descri-
bed Michael Toohey to me as an irritable man.
Q.—-Had he any quarrel with him ?
A.—I do not know.
Q.—Who else did you hear it from r
n
A.—I heard it also from Mr. Swift.
Q.—Do you know if those two gentlemen got their information
from the same source ?
A.—F cannot say.
Q.—Have you ever heard any thing that would iead you to sup-
pose, that he was a vindictive, revengeful man ?
A.—I have never.
WILLIAM SWIFT, Sworn.
Examined by the Attorney-General.
Q.—Are you acquainted with Michael Toohey ?
A.—I am—he is a neighbour of mine in King-street, where I
have resided a number of years, before he came there.
Q.—How long has he resided near you ?
A.—Four or five years.
Q.—What is his general character ?
A.—Report says, he is a little hasty at times; I have heard it
spoken of by several persons, I never saw any thing of it myself.
Q.—What is his domestic character ?
A.—I have heard two or three of the neighbours say, that he had
not conducted himself in his family as he ought to have done j I saw
nothing of his conduct myself in this respect.
Q.—Did you visit in his family ?
A.—I did not—I have had some dealings with him, and always
found him upright,
Cross Examined by Benjamin Faneuil Hunt, Esq.
Q.—How did you obtain the knowledge of his general and domes-
tic character?
A.—From general fame, and the statement of particulars ; I do
not remember from whom.
Q.—Has he not always conducted himself well ?
A—He has.
Q.—Was he particularly reported to be a vindictive, revengeful
man?
A.—I should say not.
Q—Have you ever seen him in a quarrel or broil ?
A.—Never.
Lieutenant Cassin of the Irish Volunteers, being put upon his-
oath, produced to the Court a dozen bayonets, selected indiscrimin-
ately from the members of the Company; in order to compare them
with the bayonets of the Prisoners, and ascertain whether they were
more sharp, than those of the members generally. He stated that
he had the charge of the arms of the corps, which he delivered
out as the members would require, upon obtaining their receipts; and
that while the arms were in his possession, he had placed them in the
hands of a gunsmith, to be putin order and to grind the bayonets,
which was accordingly done.
Here the. Testimony closed on both sides.
73
WILLIAM LANCE, ESQ.
Counsel in behalf of the Prisoners,
MAY IT PLEASE YOUR HONOR.
Gentlemen of the Jury,
IS there a principle of human nature in it's civilized state, known
to us from experience, which can authorize us to believe, that man
would murder his fellow-creature, without a motive ? Can it be
possible, that members of an enlightened community, would com-
mit a crime of the deepest dye, without any inducement whatever,
•with not the remotest prospect of temporal advantage, with ill-will
towards no one, without hostility to the slain, without even a personal
acquaintance with him, from whom they had received no injury,
whose existence was no obstacle to their own advancement, and
whose death was to bring them no benefit ? Will you listen with a ere-
dulous ear, to the story of our citizens passing by a rapid transition,
from the mildness of humanity, to the blood-thirstiness of tigers ?
Are you prepared to give faith to the account of such a sudden mo-
ral transfiguration ? Do you think that they, who before possessed
the ordinary disposition and tempers of men, could " in a moment,
in the twinkling of an eye," have their whole natures revolutionized,
their characters metamorphosed, their noble sensibilities changed
for the murderous fury and the diabolical hearts of assassins ? Gentle-
men, I asic these questions, and with a perfect confidence, anticipate
that your reply to them is JNo; men do not violate the laws either
of heaven or earih without tempiation. Our feelings are good,
though our passions may be seduced; our propensities are amiable,
but powerful allurementand imaginary interest may divert them from
their course. Why do we pray daily, not to be tempted, and for
our deliverance from evil ? Because we are conscious of security,
when not encompassed by the enticements of vice; we feel safe in
our innate inclinations, wliiie sin keeps at a distance. The ap-
proach and fatal influence of this enemy, we anxiously shun, as our in-
firmity cannot at all times combat with it: in the conflict we may be
overwhelmed and vanquished. If we enquire for the impulse which
actuates to the slightest transgression, shall we not expect and de-
maud, that in a charge of the most atrocious offence, at the very
mention of which our nature shudders and revolts, the accuser
should assign some probable cause, which may have instigated it's
perpetration, before he can rightfully claim our belief of it? From
the history of the first murder recorded in the oldest annals of our
race, we are justified in the pronenessof the mind, to a sceptki m of
wanton wickedness; even the narration of the sacred scripture seems
to exhibit the necessity of satisfying this natural curiosity, to be in*
74
formed of the motive of an heinous action. When Cain rose upon
Abel, and imbrued his hands in his blood, what are we informed,
provoked him to the stroke ? Jealousy of the heavenly partiality
Which had been shewn him.
When a king of Tyre, even at the altars of the gods, slew his
brother, what prompted him t.» the deed ? Envy of his riches, and
tlm accursed avarice to seize upon them. What urged the daughter
of a king of Rome to despatch her husband, to marry the murdcref
of her sister and his wife, then to conspire with him the destruction
of her own father, and to drive her chariot in triumph over his dead
body in the streets ? Ambition to obtain the throne. When that
monster in human shape, the infamous and execrable Caesar Bor-
gia, was accused of assassinating his brother, though the age was
familiar with the crime, and the wretch wa« capable of any thing,
however shocking to humanity, to gain the world to condemn him,
a reason for the charge was suggested, almost worse than the crime
itself? a rivalship in incestuous intercourse with their own sister.—;
When he who is now an exile in a remote island in the ocean ; but
who shortly ago was the mas e; of the greatest empire on the eivi-
lized globe, was arraigned before the tribunal of universal opinion,
as instrumental to the assassination of a member of the royal family
of France, was it not imputed to him, that he dreaded the life of
one who might endanger the continuance of his power ?
Within the very walls of this temple of justice, where you are
assembled on the most awful occasion, on which human beings are
called on to act, when Dennis was judged by his country for shoot-
ing down a citizen in the broad day walking the streets of the city;
before the sentence of guilty was pronounced against him, was it
not clearly seen, that he had deep resentments to gratify : and that
he deliberately planned the redress of his wrongs, by cutting olF hit
enemy? When at the same period, Nettles paid the forfeit proclaim-
ed against murderers; was not the state convinced, ere it con-
signed him to his fate, that a bestial ferocity had driven him to ac-
celerate the exit from this transient scene, of the object whose re-
main here might prevent the gratification of his adulterous lust?—
Was it not proved that in a spirit of concupiscence and barbarity;
he, like David, sacrificed the husband, in order to possess the wife ?
Gentlemen of the Jury, I trust, that if in the investigation of the
charge against my clients ; no motive can be divined or discovered
why they should have perpetrated such a deed, all the emotions of
charity will prompt you to attribute the calamitous event to acci-
dent. Should you be obliged to consider these unfortunate prison-
ers, or either of them, as causing the death of the deceased, you will
not imagine that to be design, which every rule of reasoning on the
actions of our species, must incline us to presume the unluckiness
of chance. The maxim has been transmitted through all ages, and
received universal adoption ; because founded 011 the law of our na-
lure, and the expensive observation of the wisest, that no man he-
comes a finished villain at once. The advance of our steps towards
crime is gradual. We do not hastily, or readily abandon the grand
principles of morality imperiled in us by the Creator, and impres-
sed strongly in our bosoms, by the precepts of our education, and the
excellent examples of those who are around us. Virtue has too
much beauty and majesty in her, for us easily to divest ourselves
of her delightful power. Conscience, when overcome by the reite-
rated attacks of vicious fascinations, when deserting the post she is
placed to guard ; even then casts many " a longing lingering look
behind." With reluctance she is reconciled to what at first she was
abhorrent. Oh ! Gentlemen,! do hope, that the defendants who are
arraigned as murderers, will be allowed to appeal to these leading
truths, and fundamental articles in the judging of the conduct of
mankind, for protection against any pre-conceived opinion of their
guilt; against any prejudices which may pervade the public mind
indignant and agitated as it is. When you are required to act
contrary to all the dictates of experience, and the lessons taught yon
f^om infancy, justice imperiously calls on yon to beware of a preci-
pitate decision. She cautions you to deliberate long and calmly,
and coolly, ere you admit an exception to the established rule of
human actions.
Never gentlemen, have I entered on the defence of prisoners, with
a more perfect assurance of a jury of mv country discharging their of-
fice, impartially,and conscientiously. The earnest attention, and im-
partial solic itude, the honorable interest in the cause of truth, and of
truth only, which your countenances have displayed throughout the
whole of this laborious, but ne<:e>sary examination, of the evidence;
enab >lden me with the certainty that my clients will be afforded at
your hands—every benefit to which the laws and reason entitle them.
Our duty is indeed a painful one, for in the performance of it, the suf-
ferings of the unhappy family, who have been suddenly deprived of
their head and support, are constantly in our view. 1 here is no man
in this room, who commiserates their fate, and sympathizes with thgir
agonizing afflictions, more than S do. The measure of their distress
is indeed full—these feelings for others woes, manifest the amiable
characteristic of our society ; but they cannot enter these walls to
the injury of the accused. This Court has no feelings, but in their
favour; the1 prisoners themselves, participate deeply, in the general
commiseration of the catastrophe, which has befallen this wor-
thy and respectable family.—They are botli husbands, and the elder
is a father ; they know too w ell, and have felt too warmly, the affec-
tions of nature, and'of love, to be insensible to the misfortune, and
not to compassionate the mournful situation, of the widow and chil-
dren of the decease d.
Gentlemen of the Jury, with the firm conviction that you are aware
of the immense responsibility, under wbi< h you are acting; when the
lives of the defendants are at stake—with a reliance on your attach-
ment to the laws of your country—and with the pledge which your
conduct has given, that no considerations will operate here, to make
you forget for a moment the eternal principles of justice ; I will pro-
ceed to discharge the duty which the engagement of my professional
services imposes on me.
76
If Mr. Gadsden fell by the hands of the defendants, or either of
them, the offence is either manslaughter,or killing by misadventure.
It cannot be murder—The two principal features of this greatest
crime, are here wanting. To constitute it, there must be a oombi-
nation of will and malice, without these ingredients, the alledged
offence is not consummated, but extenuated. In 3d Chitty's Crim.
Law, p. 724, it is laid down that—" The agent must be of sound
" memory and discretion and in p. 72?', there must be " malice
u either express or implied " See 1st Hale p. 451 Lord Coke in
1st Inst. p. 287-6, defines murder to be—" When one is slain with
" a man's will, and with malice; prepensed or forethought/' Homi-
cide, he says, is " with a man's will, but not with malice prepensed."
In 3d Inst. p. 54 and 5b, he says—" There is an homicide, that is
" neither forethought nor voluntary, but casu or per infortunium
and in 1st Inst. 282, a.—" If A be appealed or indicted of murder,.
viz. that he of malice prepensed, killed I; A pleadeth,.that he is not
er guilty modo and forma, yet the Jury may rind the defendant guil-
" ty of manslaughter, without malice prepensed, because the killing
" of I is the matter, and malice prepensed is hut a circumstance."—
"You will perceive from ever)' authority we shall quote, that this
circumstance," is so important in the eye of the law, that without
it every idea of murder is but a " baseless fabric of a vision." In
discussing the first requisite of murder, that the volition of the par-
ty must accompany the act of killing. Your own sagacity gentle-
men, must have made you remark, that from the direction of our tes-
timdny pointedly to the condition of the defendants, on the night of
this tragical event their counsel meant to draw from it an • argu-
ment favourable to their cause. Perhaps you may have been some-
what surprised, at our treading on such ground-—as drunkenness is
commonly thought to be an aggravation of the offence. I request
you to obliterate from your minds, any impression which you
may have received from the currency of this saying. However no-
vel the doctrine may seem to you, I am prepared to shew that the
law maintains no such position. Y our own good sense, after due
reflection, will discern, that it is as absurd when canvassed by the
test of reasoning, as it would be unjust in its consequences were an
effort used, practically to enforreMt. The author generally cited in
support of this legal notion, (for it becomes the epithet J is Judge
Backstorie. In the 4th Vol. p. 25 and 26, of his Commentaries: he
declares that the '* law looks upon artificial, voluntarily contracted
" madness, by intoxication , as an aggravation of the offencej ra-
" ther than as an excuse for any criminal misbehaviour." Now
from what sources does this distinguished writer draw his information?
The imposing names ot Coke and Plowden, are referred to, as if
sufficient to silence any further enquiry of the student. " A drunk-
6i ard, says Sir Edward Coke, who is voluntaries daemon, hath no
il privilege thereby ; but what hurt or ill soever he doth, his drunk-
•' emiess doth aggravate it; nam omne crimen ebrietas et incendit
Ci el detegii." if we consult the passage in 1st Inst. 247, relied
upon by Biackstone, we shall be satisfied that Lord Coke does not
77
intend to announce himself as the oracular promulgator of such &
legal tenet, and was probably at the moment he wrote the sentence
unsuspicious that it would ever be circulated among lawyers or pro-
fessional writers, as his golden maxirn. In the chapter on descents,
(a singular and strange pla^e to meet with a principle of the Crimin-
al Code, so important to all who are under its sanction ; and which
fact itself should have induced the auth r of the Commentaries to
pause before he introduced it into his work) Lord Coke casually
says, that " a drunkard (as hath been said) hath no privilege thereby,
but what hurt or ill soever he doth, his drunkenness doth aggravate
it." He is speaking of the power, (which he denies to exist) of a
non compos, avoiding a descent, &c. And after enumerating the
different species of derangement of intellect, in the love of quaint,
remarks, which is very predominant in his writings, alludes to the
opinion he had seen, entertained of the acts of a drunkard. The
expnsdon he employs, viz. "It hath been said" excludes th*
idea of it's being the language of the law. He refers the reader to
Plowden, p. 19. which when examined, is found to contain only the
argument of Serjeant Pollard, in a case relative to the condemna-
tion of goods. This Serjeant makes a very long speech, beginning
from p. 14, in which the assertion of" drunkenness aggravating an
offence," is his dictum, not the de; ision of the court. This con-
firms what I have advanced, that Lord Coke did not contemplate in
repeating this dictum, a solemn declaration of the law on the subject.
So venerable an expositor o£ the institutes of justice,would never have
seriously rested an axiom in his science, on such a slight foundation.
But on whose authority does Sargeant Pollard rely ? On Aristotle's.
And can it be possible, that the lives of our citizens are in jeopardy,
from the ipse dixit of a cold philosopher ? Is this community aware,
that our laws are derived from such an origin ? Is Carolina willing
to compel the observance of the mandates, and anxious to adopt'the
conceits of an ancient writer of ethics ? The very views taken by
Blackstone, in illustration of his theory, glaringly displays it's ridi-
cuious tendency. On the temperature of the climate, he makes
the abuse of strong liquors to depend. He compares the different
faculties and motives in drinking, of a Norwegian, an Italian, a
German, and a Spaniard, and describes the various effects of in-
temperance on their minds and constitutions ; so that in this land of
equal rights, a foreigner who has done wrong when intoxicated, is
to be tried, not according-to the real nature'of his offence; butac-
cording to the proportion of what he has drunk. We are to try an
Englishman by one rule, a Frenchman by another, and an Irish-
man by a third. The attention of the court is to be occupied by a
calculation, how far either of them has exceeded the quantity,
which his habits formed in a particular clime, has enabled him
with safety to take.
I beg leave to notice, that the learned commentator in the close
pursuit of a favorite thought, has uncandidly mistated, and given too
deep a colouring to the expressions of Puffendorf, whom he has
called to his assistance. This writer does not say that the law of
73
Pittacus punished doubly a crime committed by one when drunk,
(terms,the strength of which conveys a different impression from what
he intended,) but that, by that law, he who in a fit of ebiiety abmea(•"
another (by words) should pay two fines, one for the abuse, and the
other for his frolic. My understanding has never been able to ac-
quiesce in the generally received principle, on which I have been
commenting. From the commencement of my studies, it present-
ed itself to me as wild and unreasonable. Apply it to the case of
murder. Can this crime be more or less than murder? Yet agreeably
to the precept of Judge Blackstone, muider by a drunken man,isa
higher degree of criminality, than murder by a sober one; an absur-
ditv so apparent in the conclusion, by all the laws of logic, must de-
monstrate how fallacious are the premises. In a production enti-
tied " Principles of the Penal Law," p. 228 and 229, this sihgu-
lar doctrine is very severely animadverted on. The author with a
sarcastic humor, compares it to the solemn judgment he had some-
where read to have been passed on a statue, that it should be thrown
into the sea, for having in it's fall crushed a man to death. While
lie satirizes what was believed to be the sentiment of the common
law, he quotes with a seeming eulogy, the declaration of the civil
law. that no offence committed by a drunken man, should be capi-
tally punished. But it is said by Blackstone, that it is easy to eoun-
terfeit this excuse; my reply is, that such a fiction is as much a
matter for the consideration of the jury, as any other fact, and
when proved to he practised, can of course be no shelter to a de-
fendant. I readily admit, that if a man intends to kill another,
and purposely becomes intoxicated, with a view either of disguising
his project, or of arming himself w ith an additional fortitude to exe-
cute, and actually does effect his object, on the proof of these cir-
cumstances, lie is guilty of murder: and tins is really the law as
laid down in very high authoiity, 4th Com. Dig. 449—"If a man
upon mat we, kill another, if is murder, though he was drunk." In
Foster's C. L. 278, tlx- defendant who when drunk, had quarrel-
led with his brother and stabbed him, was found guilty only of man-
slaughter. I think then gentlemen, that both from fair reasoning,
and an examination of the law, I have clearly shewn, that the idea
of drunkenness being an aggravation of an offence, is unfounded
and untenable ; it is an error, w hich if not exposed, might have pre-
judiced your minds against the defendants.
The testimony, gentlemen, has established indisputably, that
borh M ichael and Martin Toohey, were exceedingly inebriated,
when thev left Galloway's house. It is also to be recollected, that
before they went to the meeting of the company, in the evening,
they were not sober. They had paraded with their corps in the
afternoon, by the captain's request, and after being discharged,
had indulged too much when they were refreshing themselves.—
Michael's situation has been distinctly proved to you. by the young
ladies of his family. Whet) he returned home in the early part of
the evening from the muster, he was evidently, very much dis-
guised. Mr. Quia ts positive that Martha was drunk when fee met
79
him at liia own door, whence they proceeded together to the enter-
tainment, to which the company had been invited by their captain.
Gentlemen, we wish you clearly to understand, that we do not
present to you this prominent feature of our case, as a justification
of a crime. The aim, (and I venture to assert, it is a fair and legi-
mate one,) is to expel from your bosoms, even the shadow of a sus-
picion, that either of the prisoners intended a second before this
occurrence happened, to injure any person whomsoever. The state
of mind in which you must now be convinced, they were on leaving
the hilarity of the convivial hoard, where they had been partaking of
the hospitality of their commander, and celebrating his return to
the state, and wishing him all the felicity attendant on the interest-
ing scene of life, into which he had lately entered ; such a state of
mind, I say, must forbid the supposition, that there was discretion
enough in them, to discern the consequences of an act, and falsifies
any insinuation of evil, lurking in their hearts. In assemblies of
any kind, where the spirit of association and harmony convenes our
citizens, in commemoration of pleasing events,we do not stigmatize
the out-stepping the limits of temperance. These occasional aber-
rations from the strict line of prudence, the sternest moralists
would not condemn, nor the severest law-giver prohibit. On the
birth day of our republic, how often in the exhilirated zeal of our
enthusiasm, and in the amusements and joys of the festival, do we
forget the ordinary transactions of life, and exceed the exact mea-
sure of indulgence! The season and the occasion call for pleasure,
and we do not chill the genial warmth of the soul, by the constant
remembrance, that we may be overtaken by wine.
If broils sometimes arise among those under the influence of such
an excitement; if a riotous mirth leads them into a rencounter, or
stimulates them to some mischievous pursuit, do we in practice
or in opinion visit on them, as if they were malefactors, every eftect
of their imprudence ? Do we not know, that the best tempered,
most cautious and particular man, may under such circumstances,
commit an act, of which on the return of his reason, and on the in-
formation of his folly, he grievously repents, though, perfectly un-
conscious of his conduct at the moment ?
Drunkenness in such a case cannot he properly said to be " vo-
luntary." It's gradual advancement is unperceived, and cannot
be guarded against. And can we possibly admit, that what a man
does in such a temporary absence of his senses, without any previ-
ous determination in his sober moments, is accomplished " with his
will and " of his sound memory and discretion ?" Justice almost
frowns disdainfully on the mere idea of guilt being attached to such
a deed. Her everlasting rules in awarding punishment, never se-
parate the mental movement, from the consequence, and perpetu-
ally remind us, that the chief and indispensible element of which
crime is composed is will. The law in it's wisdom re-echoes this
sentiment, when it avows, that " actus non reus nisi mens sit reaP
But has the prosecution shewn in the defendants, that " malice"
which the law requires, in a conviction of murder ? It has not. In
80
this it has egregiously failed. Express malice is out of the quea
tion, either against the deceased or any other person. The only
incident on which the penetrating and watchful astuteness of my
friend the Attorney-General, could ground even a hint of actual
malignity, is the altercation between Michael and Mr. Marks re-
specting the child. But this had terminated amicably. The child
had been impertinent; and were it not for the hasty asperity of the
ihother, Michael was preparing at the house of Mr. Hyams, even
to apologize to the parents, for the very lenient manner in which
he had manifested to the child his displeasure. Though the apolo-
gy was not made, they yet parted in good fellowship; without the
slightest symptom of animosity ; and with the understanding that
the business was buried in oblivion, as it would have been, I am
certain, if on the evening of the same day, the event which we all
deplore, had not unfortunately occured. Putting aside then, every
thought of expresg malice ; let us turn our consideration to that
malice which the law implies. And here, gentlemen, I must warn
you, that you are not authorised to permit such an implication to
govern your judgment, unless it grows necessarily out of every as-
pect of the case. The law does not allow, of an unlimited exercise
of the fancy ; it excludes the whims of capriciousness, in making the
discovery of a bad heart, from all the various circumstances attend-
inga human being, at the instant he commits an act charged against
him as criminal. Foster in page 257, of his Crown Law, says, ma-
lice is implied from " such circumstances as carry in them plain in-
ideations of an heart regardless of social duty, and fatally bent on mis-
chief." In p. 138, he says, they must be " circumstances of deli-
beration and cruelty" and in page 291, it must " reasonably be
collected, that the party intended to kill." (See also 5th Bac. Ab.
126, new American Edition.) Lord Ilale, in 1st vol. P. C. 455,
following the division of Sir Edward Coke, in 3 Inst. 51, 52, speci-
fies but three kinds of implied malice. First—when the homicide
is voluntarily committed without provocation. Second—when done
upon an officer of justice. Third—when done by a person that in-
tends a theft or burglary, &c. The first is murder, for the law pre-
sumes it to be malicious; and that he ishostis humani generis.
Even a justling of A. by B. is a sufficient provocation, to reduce
killing to manslaughter, p. 455, 456. And so tender is the law o£
the lives of men, who are under it's safeguard, that the great oracle
of its precepts, declares in 3d Inst. 137, "incase of life, the evi-
dence to convict him, (the accused) should be so manifest, as it could
not be contradicted.
Respecting the third species of malice, implied in the person
killing ; the design or act in pursuance of which death ensues at
his hand, must be illegal. 3d Chitty, 732. Foster, 261, 262.—
1st Hale, 465. It must be an " act unlawful in itself," 3d Chitty,
727, the death must be " in pursuance of an unlawful design," and
the " killing in prosecution of the original intent and not collateral
to it." So far from the prisoners planning or designing any illicit
project, which they were to carry into execution that night; so far
§1
from having premeditated an injury or offence ; that you are in-
formed Michael would not have left his home, but at the pressing
solicitation of his wife, who insisted, that it would be a disrespect to
the captain for him to be absent from the assembly of the company,
on an occasion so particular. On her offering to accompany him,
though she was not well, and, to stay with Mr. Hyams' family,
(whose house is opposite Galloway's,) till he should leave the meet-
ing ; he consented to go. Is this the conduct of a man actuated by
a murderous intent? To wish or even suffer the partner of his bo-
som to be a witness of his atrocity ? You cannot, you will not be-
lieve it. In the demeanor of the brothers at the meeting, there
was nothing which indicated a disposition to be quarrelsome. They
were more frolicksome than some of the company7; but they were
neither boisterous nor obstreperous ; much less did they behave in
any way which could have awakened a suspicion, that malevolence
predominated, or even existed in their minds. You will particularly7
remember, that a message from Mrs. Toohey, was the cause of
Michael's retiring from the meeting, as her request had been the
reason of his attending it. She communicated her wish to be at
home, the hour becoming late, and that she was waiting for him.-—
Martin came out with him ; and it is unquestionable that they were
both then considerably under the influence of liquor. Mr. Gal-
lowav assisted in putting on-and buttoning Michael's great-coat.
No man in his senses can imagine, that, at that moment, these bro-
thers contemplated tiny outrage in the streets ; Michael affection-
ately offered to see Martin home ; ■ love and good will seemed to
occupy their souls ; though they were not as serene and as tranquil,
and as mild as the zephyrs; yet their countenances were not low-
ering or gloomy ; their tempers were not irascible or morose; an-
ger, hatred and malice were the remotest passions that appeared to
inhabit their bosoms. They had drowned the common cares of
life in the bowl; they were going to join their families at their fire-
sides. It is hard indeed to harbour; it is unjust certainly, to encou-
rage the thought, that two good men, fond brothers, and excellent
husbands, should at such a* time from no impulse, but the fanciful
one " of being moved and seduced by the instigation of the devil;"
thirst for the blood of a fellow-man. The tax on your faith is too
heavy and oppressive for you, to tolerate it with patience. You must
oppose it with all your might. Gentlemen, on the signal given by
which Mrs. Toohey was to know that her husband had left Gallo-
way's, (I mean the tapping at Hyams' window) she hastened to
meet him in the street. Scarcely had she gone, when the cry of
murder was heard by Mrs. Hyams, who gave the alarm to her
friends, then sitting in her parlour. Mr. Moses was the first who ran
out. Recognizing the voice of Mr. Gadsden, he asked him, what
was the matter ? The deceased replied," 1 am wounded, I'm a dead
man." To Mr, Moses enquiring who had done it, he replied," he
has done it," pointing towards some person in Market-street, and
he fell expiring, into the arms of Moses. Whatever may have con-
duced to this melancholy end of the deceased, it is beyond all
L
82
douht, that the scuffle in which the blows at him were seen to pass
from the prisoners, was a very sudden one. The interval between
the time they left the tavern, and the instant when the blows were
observed, was a mere punctmn temporis, in which they could not,
even if they had been in perfect possession of their faculties, have
arranged any system, or concerted any stratagem for the attack or
surprise of a supposed foe. You are not at liberty to presume what
there is not a tittle of proof of, that they purposed through sport or
enmity, assailing some person in the streets. It is idle to imagine
that Michael would have willingly, and through amusement, con-
seated to commence a broil, knowing that his wife was anxiously
expecting him ; and it is equally absurd and extravagant to believe,
that men whose ruthless and savage nature, delighted in slaughter
and massacre, would have selected a spot so public, before the very
doors of a house, in which a large party was assembled, and chosen
an hour when the citizens had not yet sought repose in sleep, for
the accomplishment of their infernal schemes, and the gratification
of their sang Hilary appetites. i\o, they would have skulked in some
hidden corner, till the darkness and stillness of midnight, " when
church-yards yawn, and hell itself breathes out contagion to this
world," and then ushered forth, prowling like the wild and feroci-
on» beasts of the forest, insatiate after gore, and seeking whom
they might devour. Who is here so ignorant and unthinking as
not to know, that the fear of detection, and the dread of immediate
punishment have power to withhold the murderer's arm, when his
breast is destitute of every particle of moral emotion, his heart
steeled against ail the assaults and compunctious scruples of con-
science, and his affections, (if such a term can belong to his sensa-
tions) engrossed in viilany ? Who does not know, that the coward-,
ice of the cut-throat and ruffian, shunning the day-light, when foul
deeds would he revenged, as soon almost as they are perpetrated;
is a mighty buckler to the great body of society ?
lu these instantaneous conflicts arising out of some momentary
excitement; the law considers killing, if not as accidental, as no
more than manslaughter. 4 ill. Coin. p. i(jr, " if upon a sudden
<( quarrel two persons fight, arid one of them kills the other, this is
" manslaughter ; and so it is, if they, upon such an occasion go out
" and light in a fieid : for this is one. continued act of passion, and the
" law pays thai regard to human jravty, as not to put a hasty and
" deliberate act upon the same f Ming with regard to guilt"—1
Ilawk, P. C. 81, 82, 3 Bac. Ah. 123. in the last hook is reported
the case of the three Scotch so'diers, who were drinking together
at a public house. On an alter cation which ensued, in consequence
of their national charac ter being reviled by a stranger in the room,
one of the soldiers stabbed him to the heart, and this was adjudged
manslaughter. Brown's case in Loach 135, is also there quoted,
" a quarrel arose between several soldiers ana a number of keeimen:
" one of the soldiers, to protect himself and his comrades from the
" assaults of the mob, drew his sword, and mistaking a person pass-
" ing by for one of the keeimen, struck him on the head with his
83
sword, of which blow he died." This was adjudged manslaugh-
ter. This last case not only fully elucidates the principle 1 con-
tend for, (that in the sudden scuffles where death happens, the law
looks on the offence as of a minor degree than murder,) but con-
tains a circumstance which you will find to bear a strong resem-
blance to an incident in the case you are deciding ; 1 allude to
the stroke given by Martin to IVi'Dowall, who must evidently have
been mistaken by him for somebody else, with whom the prisoners
must have been contending in a very sudden affray. In the same mar*
tier as M'Dowall was mistaken for another person, it is highly pro-
bable, that Mr. Gadsden was, who was passing by at the instant, he
must either have received an accidental blow not meant to be aimed
at him, or he must, in the confusion attending these unfortunate ren-
counters, have been mis-conceived for the individual by whom the
prisoners, or one of them had been insulted. Undoubtedly there
was a quarrel between the defendants and some other person, who
I believe was Gordon. It is in evidence that Michael Toohev,
though generally good natured in his cups, was violently agitated
hv the combined influence of drunkenness and indignation at that
moment. He was beard to call out " you damned rascal," ai d
Gordon was at the same period in a tone of recrimination, abusing
the prisoners, accusing them of being cowards, and asking them " is
that the way you Jig Id"—now, why has this man Gordon, not been
brought forward on behalf of the prosecution ? If his examination
in court could contradict the inference I draw, would it not be the
duty and interest of the state to have him here r It is also remarka-
ble, that this man, (who is desciibed as the litjJe mao,) was nearer to
the deceased than the prisoners, when he /xclaimed against tiiem
as 1 have just mentioned; if he has fled, br can be iniroduced here,
and is not by the state, either alternate® corroborates my conclu-
sion. He either is apprehensive ol>'anger to himself from a consci-
ousness of being a busy actor inyte scene, or has informed the pro-
sedition that his testimony w^id be serviceable to the defendants,
tie"tiemen, let us now revest to the narration given us by the two
witnesses, M'Dowall ai*f Sutciiffe. It is ail-important that you
should weigh their sf/*ement very maturely, as it is the only positive
evidence of what passed between the defendants and Mr Gaosden.
The state has pl'oved but tu a blows to have been aimed at the
deceased, one by Michael, merely with his fist, the other by
Martin, with a bayonet in his hand. The medical gentlemen
who saw the body of the deceased, explicitly state, that it had
two bayonet woundsy and one bruise on the forehead, and that
the blow w hich ruflicted tne latter, must have been trifling. There
is then no doubt that as far as Michael is implicated in this transac-
tion,if you think tire hurt on the forehead was his act, lie could not
have contributed to Mr. Gadsden's death. He may have on a mo-
mentary provocation only intended to strike him in that manner,
w ithout designing seriously to injure him. If to kill was his motive,
what preveuted him from drawing and using his bayonet ? Gentle-
men, I c*uld here cease the defence of Michael, were he alone con-
84
concerned, with an honest belief, that to proceed further would be
an unnecessary consumption of your time, as you cannot do other-
wise than declare him innocent. You have the highest evidence by
which the human judgment can be directed; the dying exelama-
tion of the deceased himself, that but one individual laid violent
hands on him. The words " he has done it," pronounced at the
awful moment of passing into eternity, preclude your resorting to
any enquiry, whether another person had given a deadly blow, or
had assisted in mortally wounding the deceased. The prosecution
itself has satisfactorily convinced you, that Michael could not be the
person whom the deceased meant to designate, inasmuch as he
struck him with no weapon. Michael's asseveration of his inno-
conce, you are also bound to regard; you have been made acquaint-
ed with it, not by the witnesses produced for the defence, but those
summoned and examined by the state. So conscious was he, that
a human being had not met death at his hands ; so guiltless
was he in his own eyes, that when the guard came at midnight to
arrest him, he made no resistance, but unhesitatingly consented to go
with them ; he several times repeated ids unconsciousness of having
done any wrong; betrayed not a symptom of alarm ; and when re-
proached by Lieutenant Fell, for having, as he thought, broken his
engagement, to give the guard no trouble by an attempt to escape,
in the purity of virtue he replied, there is 110 reason why I should
deceive you, 1 have done nothing which should induce me to violate
the honor I have pledged. 11 is behaviour throughout was so meek
and gentlemanly, as ts impress the witnesses with a firm belief of his
integrity, and the veriegy of his assertions. When -1 state, that
Michael struck without a >espon, I attach no credit to the insinua-
tion of the contrary by Mr. -Muddie, who says he thought he saw
Michael concealing something under his great-coat. By his own
acknowledgment lie was terribly•• frightened. So formidable did
Michael appear to him in the atthyUe of brandishing about his
arm, su much like an enraged fury, breathing out tremendous veil-
geauee and threatening universal siaughtth that the witness fearful
of coming within the sphere of impending "instruction, and think-
ing " discretion the better part of valour," did not venture to ap-
proach him. Though he keeps at a respectable distance, seeing
. no glory to be acquired, and no laurels to be gathered by mingling
in such a battle ; though the night was very dark, yet he can distill-
guish Michael as if in the act of hiding something. Teivor must
have operated on the imagination of the witness, as the horrors of
remorse did on that of Macbeth, when he exclaimed,
" Is this a dagger that I see before me,
The handle towards iny hand—come let me catch thee ;
" I have thee not—and yet I see thee still!
Mr. Sutchf'fe was panic struck, and his diseased fancy pictured an
image of which there was no reality—It was " a false creation pro-
eeeding front the heat oppressed brain." ;
Gentlemen of the Jury, if your minds balance for a moment, as
to the destiny which you should injustice assign to Michael Toohey,
85
it is a sacred obligation cast upon you by the law, to appreciate
his character, and to allow it to preponderate. Fortunately for hirn,
no than who has been necessitated to put his reputation in issue, in
repelling a charge so criminal as the present, ever adduced more
incontestible proof of a good and honest fame, fie does not glitter
in the splendid and polished circles of society—he does not figure
in the " fashion of this world which soon passeth away," but he is
an humble and plain citizen, who places his supreme earthly bliss
in the indulgence of the social virtues, and of his affectionate fond-
ness for his family—content with his lot in the walks of private life,
he is unambitious of any (station which would draw him from the
sweets of domestic retire in ent. That he has every inducement to
attach him to his home, ail must be persuaded, whose notice has
been attracted by the emiheiit worth of his companion for life, so
conspicuously brought to our view in the progress of this cause.
Throughout the whole of the very trying scene in which she was
placed on the night of the lamentable subject of our enquiry; this
excellent woman and affectionate wife, exhibited a fortitude, self
command, and patien: endurance of her distress, which justly en-
title her to be ranked amongst the ornaments of her sex; and fur-
nish the strongest evdence of her devotional stuly to consult the
happiness, and prouote the prosperity of her husband. Several
ladies, intimately acquainted with the character of Michael Too-
hey, from a residuce for a number of years in his family, have
declared to you tht he is tender and amiable; of a cheerful and
easy temper, and erv kind to all who are around him. Gentle-
men of the first r»;pectability have proved that he is industrious ;
a most peaceable quiet and unoffending citizen. Some of the
witnesses emphfically state, that he is the last man they would
have suspected c being guilty of the crime of murder ; and they
express their aiazement when informed of the charge against
him. With thimass of testimony in his favour, collected from the
inmost recessesf his domestic life into which we have penetrated ;
and from the gieral tenor of his conduct in society, I do repeat
that under all e circumstances of this case, I could safely rest his
defence here, id demand his acquittal at your hands. The law
is peremptorvthat " an affectionate and warm evidence of char-
" acter, whe£ollected together, should make a strong impression
" in favour f a prisoner, and when those who gave such char-
" acter in edence, are entitled to credit, their testimony should
vf3Vegre: weight with the jury."—McNally, p. 223.
which Hp'tnen of the Jury, there is another theory of the law,
and vsT1 hbmy friend, the Attorney-General will comment upon,
He wfontend iiTutn/ittsly urge, should affect both the prisoners,
equafprhicipals with him'^re present, aiding and assisting, arc
died. This seeming difficulty Iv£ifie stroke whereof the party
amjitosay, I shall surmount it. 1 fnlv■ *? encounter ; an
consideration, will be found perfectly inappn^^ ° ° Jt
Before you. Lord Hale, in vol. 1st. p. 437, adnn^L anc®
86
" ently, he that struck the stroke whereof the party died, was only
the principal; and those that were present, aiding and assisting,
" were but in the nature.of accessaries, and should not' he put up-
t( on their trial, until he that gave the stroke were attaint by out-
u lawry or judgment." Continuing his view* of the subject, he
Jays down the doctrine which will be insisted on by the State, that
" at this day and long since, "the law hath been taken otherwise,
" &c." But in page 438, he unequivocally allows that there are
exceptions to the latter general rule, .i'f Yet, the circumstances of the
" case may vary the degree of the offence in those that ar> in- this
" kind, parties to the homicide." Apd to support this position, he
quotes Salisbury's caso, reported in Ijlowden, froth p. 97 to p. 102.
You will excuse me from dwelling somewhat minutely on the par-
ticulars of this case, as we shall find in it the first instance in which1
the ancient rule was departed from; dndf do say, we should ex-
tend this deviation no further than the authority of this case will
justify us in doing. The general principle settled in it has thy full
concurrence, with the understanding I lave of it.—-Towards the end
of page 100, to a question demanded by the inquest, the court an-
swered, "if John Vane Salisbury had not nalice prepense,, but'
" suddenly took part with them who had maice prepense, this is.
" manslaughter in him, and not murder, because he had not ma-
" lice prepence."
The reporter calls the attention of the reader,particularly to thai
decision, and after saying, that he bad heard thenrmciple " greatly
doubted," he concludes, " but this is by thp aboe rule of the court
put oni- of doubt, viz. that it shall only be manslughter, &c." In
page 101, we see the result of this case, the jury >und three of the
party guilty, (who were executed) one not guilti and J. V. Sal is- y
bury, guilty of manslaughter. In page theprinciple is laid
down by ail the justices (after advising two days © a question mov-
ed by Biomley ;) to be this : " when many come tdo an act, and
only one does it, and the others are present abettingnmi or ready to
did him in the fact, they are principals to all intentaS much as hp
that does the i'aet,&c." In page 90 and 100,-the auior reviews the
general doctrine, and particularizes as follows: 'it appears that
Hussey put this question, whether he, that is presenttthe*death of
a man and encourages another to strike and kill th person) is a.
principal; and it was holden by the justices that he i'&c."—" and
the blow of him tirat struck,"is the blow of him th commanded,
him, &c."f This is liord Hale's distinct conception olhe law.
page 440, vol- 1, he says, " if many be present, and ov on&£'hey 1
the stroke, whereof tile party dies ; they are all princi#^.^^ '
come for that purposeIn page 443 it must be n.lg}. Ive 444
of thai unlawful act, that they were alt Account, and a -j< fife-
" yet if many be together upon a jpgfiy. particular abate.,n 0f
aiflother of m adverse partv^ W they are not all guilty ,t are
the rest, to this fact of J 1 y 1 dl
of the those »*» «"»*the Hp*" 'My
abetted him- *- ^ page 446. .In page 44.*, he oitfiat
87
gave the stroke, had judgment and was executed"—see also Foster
C. L. 354.
A late writer seeming to question altogether the propriety of the
rule, which involves many in the act of one, considers the doctrine
" as almost anomalous in law." 3d Chitty, page 741.
Gentlemen, with this correct information of the law as to the abett-
ing in homicide; let us proceed to apply it to the facts of our case.
For the sake of argument, I admit for a moment that Martin did
give the mortal stroke, but is this necessarily murder in him ? The
whole history of the conduct of the brothers which I have detailed
to you ; and all the maxims of the law which I have as yet brought
to your view, preclude a reply in the affirmative. Unless the inten-
tion to kill, and malice are shewn to you, you cannot call it murder.
But if Martin wounded the deceased with a deadly weapon, you
will be told, that this circumstance is in itself evidence of malice ;
and that the law under this penalty forbids the use of such instru-
ments in a fight, as would probably cause death. The policy of
this rule is confined only to the punishment of cruel and barbarous
men, where there is very reasonable ground to believe from the
testimony,, that the weapon was carried for the express purpose of
committing violence. It never could be the meaning of the law,
to say, that killing in a conflict with a deadly weapon, is conclusive
evidence of murder. That it is not so, I have already proved "to
you, by the cases of the soldiers who in a drunken froliek, and sud-
den altercation, happened to kill with weapons then worn by them.
This is precisely the case of Martin Toohey. He and his brother
had carried their bayonets by an express order, or request of the
captain, that the company should attend in uniform and with their
side arms ; they were both very much intoxicated, when they left
Galloway's room, and must have fallen into an almost instantaneous
fray, arising from an insult offered to one of them, or possibly to
Mrs. Toohey after she left Hyams' to meet her husband. That
there was a quarrel with somebody, 1 have clearly demonstrated.
A soldier using a weapon on such an occasion, to resent an affront
offered either to himself, his brother and his sister, being at the same-
time under the additional excitement of liquor; the weapon beingr
about him in consequence of his commanding officer having so di-
rected, is a very different case from that, which the law desires to
punish ; the case of the villain apprehended in killing in cold-blood,
or without provocation, with such an instrument, when no reason
for his having it about him appears, and when we are obliged to
presume he armed himself with it for a murderous object.
But if Martin did give the mortal blow with a deadly instrument,
and should be conceived for these reasons a murderer, how can
you possibly transfer to Michael a portion of the guilt of this crime?
I assert, you cannot. If you regard, as is incumbent on you to do,
the sound doctrine of the law, which I have read and explained t©
you, how can Michael be viewed as a participate!' in the violence
offered to the deceased, and as a partaker of the supposed guilt,
unless he and his brother were " in pursuit of an unlawful act£
88
and " came, for that purpose ? Is it possible, that when, by the strict,
hypothesis of the law, the nature of the weapon used supplies the
want of proof of malice, you would extend this theoretical guilt be-
yond the person who actually killed ; when even, in a case of ex-
press malice, a person present at the killing of another, and even
taking a part with the slayer, but ignorant of his intent, and " not
privy to his malic#" is decided, by Salisbury's case, to be innocent of
murder ? You can no otherwise think of convicting Michael, but
by believing him implicated in the deed done by his brother—yon
eannot reconcile it to your consciences, to common sense, to de-
clare to the world, that two men acted in conspiracy and in unison,
who, in the moment of action were not possessed of their facul-
ties, who were not proved to have previously plotted injury to any
one, who had assembled with other citizens, not only for a lawful,
but a very laudable purpose who, by accident, had fallen into a
sudden combat in the streets with some person passing by, and
who, without time for reflection, and on the emergency of the rno-
ment, were the unintentional cause of the death of a fellow being,
I have argued, gentlemen, on the supposition that Martin did
give Mr. Gadsden the wound of which he instantly died. Now the
State has not brought to your view irresistible proof Of this very ma-
terial circumstance in a charge of murder. The indictment must
alledge that a mortal wound was given by the defendant and this
allegation must be proved, 3d Chitty, 704. Two bayonet wounds
have been proved to you by the physicians; and they state-their
professional opinion to be, that only one was necessarily mortal.—-
What reason or right have you to set down that blow to the account
of Martin Toohey ? Can you say, that without doubt, he inflicted
it, when you are compelled to confess yourselves at a loss, as
to the person who was the author of the other wound ? Presunip-
tions are illegal, unfair, and inequitable in a case of life and death.
Neither Martin nor Michael, can be presumed by you to have
stabbed mortally with a bayonet. Martin was only seen to strike
with one in his hand; the witness cannot swear that he wounded
Mr. Gadsden with it. As to the necessary mortality of the wound,
you eannot dispense with the requisition of the law—that the
proof of the fact must be certain, in order to affect the life
of the person accused of giving it. Lord Bale, in vol, 1st. page
428, says, " if a man gives another a stroke, which it may be, is not
" in itself so mortal, hut that with good care, he might be cured,
" yet if he dies of this wound within the year and day, it is hor.ii-
a cide or murder, as the case is, and so it hath been always ruled.
" But if the wound or hurt be not mortal, but with ill applications
(i by the party, or those about him ; the party dies ; if it can clearly
appear that this medicine, and not the wound was the cause of his
a death, it seems it is not homicide, but then that must appear clear-
i(. ly and certainly to be so. But if a man receives a wound, which
<e is not in itself mortal; but either for want of helpful applica-
(t tions, or neglect thereof, it turns to a gangrene or fever, and that
a be the immediate cause of his death; yet this is murder or man-
89
a slaughter in him that gave the stroke &c." See also 1st Chitty,
jp. 258.—As you have not positive proof that Martin did give the
mortal wound, the presumption in common reasoning is, to say the
least, equally against his doing so, as that he did—and the rule of
law, that in all cases cc presumptive evidence of felony should be
admitted cautiously," ought to incline the scale in such an equi-
poise of circumstantial testimony, ©n the side of the prisoner.—
Gentlemen, by the great pole-star in judging of the motives of
mankind, their conduct on the particular occasion, you must be
guided in your consideration of Martin's guilt or innocence. He
returns to his home, the last place, a man conscious of such a cry-
ing offence as murder, would have thought of going. He falls into
a deep sleep, when we know that guilt " doth murder sleepand
when with great effort, roused from his lethargic repose, and drunk-
en forgetfulness, and informed of the report prevailing against
him, he attaches so little belief to the truth of it, as to think it a
story invented by his friends for their amusement. Mr. Turner's
testimony on this point is convincing and interesting. I had re-
marked, when he stated his advising Martin to fly, if he was guilty,
and his concern for him as a young friend and neighbour, and an
old acquaintance of the family, that his feeling was an honorable
one* My worthy friend, the Attorney-General, expressed some
surprise at hearing me avow such an opinion—he had considered^
Mr. Turner, as guilty of an offence against the laws, in counselling
a felon to escape; but my friend is mistaken in his views of Mr.
Turner's conduct—misprision of felony is only where the party ac-
cused of screening the offender, " knows that he has committed fe-
lony." It is not pretended that Turner knew any thing about the
transaction, but from heresay, and he certainly was free to act, as
the warmth of his friendship for a young countryman dictated at
the moment.
By the over persuasion of Mr. Turner, Martin who had been
but little removed from a state of stupefaction, agrees to attempt
his flight. Scarcely had he left his house, when he insisted on re-
turning, the idea still recurring to his mind, that Turner was jest-
ing with him. Never was there a more undisguised manifestation
of conscious innocence. Finally he consents to go with his brother
Patrick, who informs you, that when they arrived at Boundary-
street, Martin refused to go any further, until he had an interview
with Michael, as to the story of what was related to have passed.
You will not permit to escape from your memory what Patrick
Toohey states, as to the condition of Martin when he came home
that night. He was completely drunk—so much so, that Patrick
undressed him and put him to bed; a light was kept burning in the
room; certainly, gentlemen, very contrary to what would have
been permitted by a man, who knowing that he had committed
murder, must have had some fears of being pursued. After Mar-
tin and Patrick had come to the house of Michael, who by this
time had considerably recovered his recollection, they repeated
what Turner had said, and all of them conversed on the subject.
M
80
So little consequence, did they attach to it, that the discourse soon
turned on some different topic, until they were interrupted by the
arrival of the guard. Such a series of incidents from the begin-
ning to the end, perfectly irreconcileable with the known and
common conduct of guilty men, cannot but create a strong
bias in behalf of these hapless defendants. On your judgment is
devolved the duty of weighing all the circumstances of this, indeed
most singular case. The law arms you with a power of giving
either a general verdict of acquittal, or of awarding a sentence of
manslaughter. 3d Chitty, p. 739—Foster, p. 297, 280, 283—2d
Hale, p. 304:—And its merciful tenderness prohibits you from sus-
peering men of being accomplices in a crime, who could have had
no time for contrivance. Lord Hale, in p. 615 and 6l6says:—
i( those offences, which in the construction of the law are sudden
" and unpremeditated cannot have any accessaries before, as killing
" a man per infortunium, se defendendo, or manslaughter.'" .
The exalted station which Carolina holds in our country, the
proud and elevated character of our city, (identified with the re-
iinement and elegance of manners, the diguity of sentiment,
and the nobility of principle,) should make you, gentlemen, timid
of taking a step, which may degrade the one, and throw a stain
oh the other. Let it not be noised abroad, by your hazarding a
condemnation of the defendants ; that it is unsafe to walk the
streets of this celebrated capital of the south, even at an early hour
of the evening. If we become depreciated in the estimation of the
worjd, the rapidly increasing prosperity of our city, will soon be on
the decline. The illustrious Roman orator, even at the instant of
pronouncing a most bitter and vehement invective against the trai-
tor, who plotted a conspiracy to overthrow the liberties of the re-
public, abstained from bringing into public discussion, his foul and
secret crimes, since the very mention of them must reflect disgrace'
on the country, in proportion to the atrociousness of the offence,
ought to be the strength of the evidence, to substantiate the charge
of it. You should be satisfied with no less than moral certainty.
This species of incredulity, displays the wisdom and justice of a
jury. It is the aegis winch shields the accused from the shafts of
calumny, and the effects of popular rage. It saves him from be-
ing immolated on the altar of vindictive prejudice. It is the great
palladium of a fair trial.
I am certain you will be glad, if you can preserve the honour of
our State unstained, by conscientiously absolving these men from
the accusation, under which they have laboured. When we read
that Alexander the Great, caused the death of his beloved friend,
in a frantic moment of ebriety, we are not accustomed to say that
he murdered him.
In a case like the one before you, the defendants being in com-
parisou with the deceased, unknown in society, and being held
up to public scorn, as the exterminator of the support of a large
family, have to encounter perils and difficulties, from which only
the courageous independence, and magnanimous impartiality of a
91
well-informed jury can extricate them. Odium attaches to the
very name of murder, and we cannot more forcibly express our
detestation of a fellow-creature, than by declaring him capable of
that unnatural crime. When the barbarians were gazing at St.
Paul, after his ship-wreck on their island; and saw a serpent wind-
ing itself round his arm, with a momentary conviction, that this
was a supernatural punishment sent upon him, they uttered their
aversion of him, by saying, " this man is a murderer."
Gentlemen of the'Jury, I do think that in the mystery and
cloud which envelope this calamitous event, you are justified in
attending seriously to the strong claims, which the defendants have
on your pity and humanity. The law permits the indulgence of
these emotions. All it exacts, is the arraignment of men accused
of its infraction, and a vigilant scrutiny into the charge. If the
jury on their oaths, still doubt the guilt of the prisoners, they are
bound to acquit. Recollect too the very interesting situation of the
wife of the defendant, Michael. Would you place her existence
in jeopardy, by the shock which a sentence of guilty and it's exe-
cution must create? Are you for extending the severest chastise-
ment of the law, to what is not yet under it's dominion ? Even the
the law of heaven requires but a life for a life. Would you make the
temporal code more cruel than the eternal ? To revenge the ghost
of the deceased, are you to sacrifice two brothers, one of whom is
almost a stranger on your shores, an innocent female, and an
immaculate spotless victim not on the confines of this earth ?
If the prisoners are guilty, they cannot escape punishment. It
awaits them here in the torments of conscience, and, if we have
faith in what we profess, they must undergo sufferings hereafter.
This certainty should make you less unwilling to yield to the doubts,
which after all, acting under the solemnity of your oaths, you can-
not but entertain. The preservation of our laws is more beneficial,
than the occasional impunity of guilty men can be injurious. The
protection of the innocent, by a strict observance of what Cicero
esteemed the richest inheritance we derive from our ancestors, is
more important to the safety of government and social order, than
a relentless prosecution of offenders. You have it in you power,
to gratify the best earthly feelings, if not inconsistent with an itn-
perious sense of your duty. There is nothing in the lavv^which
directs you to " shut the gates of mercy on mankind."
92
When Mr. Lance concluded his speech, the day being far spent;
the remaining Counsel requested the Judge to grant the same in-
dulgence, which he had previously extended to them, of adjourn-
ing the court until the next day. From the immense concourse of
people who thronged the Court-House, during this important and
interesting trial, and the excessive and unseasonable heat of the
weather, all the parties concerned were so exhausted, that the
Judge acquiesced. His Honour, previous to the anjoUrnment,
called the attention of the Jury, to the substance of the chargej
which he had, upon the same occasion for the two days previous^
impressed upon their minds. The Court was then adjourned until
next morning 10 o'clock.
Friday Morning, January 19, 1819—10 o'clock.
The Court met pursuant to adjournment, and the Jury being
called over, the trial proceeded
S3
BENJAMIN FANEUIL HUNT, ESQ.
Counsel in behalf of the Prisoners.
MAY IT PLEASE YOUR HONOR,
Gentlemen cf the Jwy.
IN the prosecution of my professional avocations, never till this
moment have I felt ready to sink under the weight of responsibility ;
1 can discuss questions of property, and anticipate any result with
equanimity. But I now see two of my fellow citizens, hitherto es-
teemed upright, honest and humane, exhibited to the community as
malefactors. I see their wives and children waiting with agonizing
anxiety your verdict, which may make them widows and orphans. I
am sensible how inadequate are my powers, to the momentous task
of shielding them from a catastrophe so awful! I feel appalled at the
undertaking, and could I consult my inclination, instead of my duty,
I should be silent.
The sensibility of the community is roused to a pitch, bordering
on frenzy ; public feeling and private prejudice are to be combated.
Sympathy is confined to the family and friends of the deceased. The
accused have to struggle against the over-whelming influence of pub-
lie accusation, and private malice. Falsehood with her envenomed
tongue, has usurped every avenue to truth; and respect for the de-
ceased, and indignation at his supposed murderers, have closed the
doors of mercy. Justice is all they can hope for, and all they dare
to ask. A good man has been torn from his family !—A fatal blast
has withered the heart of the disconsolate widow and chilled the
current of domestic joy.—That vengeance should be awakened by
the cries of innocence, is both just and natural.—The same God who
mingled in the elements of man his tenderest feelings of mercy, taught
him to pursue the guilty with a just measure of punishment; jus-
tice and mercy are the offering of a common parent. But the
victim must be proved to have merited his fate, before either can
sanctify the sacrifice. Vengeance has already marked the unhappy
prisoners as her prey; facts, which have no existence but in the brain of
the narrator,have been circulated with all the exaggeration of vicious
fancy ; and a morbid appetite for whatever is monstrous and cruel,
has anticipated with fiend like delight, the ignominious death of the
accused. But mankind has suffered so much from the unbridled pas-
sions of each other, that they have found it essential to the protecti-
on of the innocent, as well as the punishment of the guilty, that
none should be condemned without a full and impartial trial, by men
w ho are, as far as human frailty will admit, un-influenced by any pas-
sionS repugnant to equal justice. For this purpose you are selected
from your fellow citizens, and when you enter the walls of the
Courts of Justice, the world and all its idle rumours must be forgot-
ten. Your minds should be hallowed for the solemn office—for von
N
94
are to pass upon the life and death of two of your fellow beings.*™-
Upon an occasion so awful, let me conjure you in the lan uage of
heaven—"put off your shoes from off your feet., for thepla e where-
on you stand is holy ground purify your minds and hearts, and
regard only the approbationof that inward monitor, whose reproaches
none can stifle, whose voice is truth
It is not my intention, for I have not the talent to rouse your feel-
ings, for the purpose of misleading \our understandings; and 1 re-
spect you too much to make the attempt. Mine will be the humbler
task of convincing your judgments that all I ask for my clients, is
consistent with the law and the evidence; I cannot even hope to
enlighten your minds, by a flame kindled at your hearts. But once
more let me implore you not to suffer yourselves to be biased by any
evidence not sanctioned by the law ; distinguish between rumour
and testimony in its legal acceptation. The first is often circulated
from feelings unsanctified by a regard to truth, or humanity No
oadi solemnizes it, and it is often prostituted to gratify the malignant
workings of private hostility. Where is the man who has merit
enough to deserve friends, and is not watched by foes, who embrace
every opportunity to blacken his character, mis-represent his motives
and aggravate his faults. None are without foibles, and when the
slanderer is irresponsible, envy and hatred magnify them to crimes.
But a few short months have passed, since the prisoners had spirits as
light and hopes as brilliant as any of you. They were brothers, hus-
bands—fathers! Now they are dragged from the dungeons to which
they have been chained, to meet the curses of the cruel, the re-
proaches of the unfeeling, and even the pity of the vilest wretch
that crawls the earth.
Prosperity, which allures false friendship, kindles the enmity of
those who do not merit success themselves; and the slightest reverse
is the signal for wreaking their mean but fatal revenge. Fallen as are
my clients, from the height to which their industry and honesty had
raised them ; every reptile brandishes his forked and slanderous
tongue against men, who, a few days since, would have crushed thera
under their feet. But the evidence on which you are sworn tode-
cide, is given in the presence of the accused ; sanctioned by the re-
sp? t due to the courts of justice, and by an appeal to the God of
truth.
The wisdom of ages has collected rules of law according to which
this testimony is received and weighed ; these rules are the result of
long experience, and although they may sometimes prove a san< tu-
ary for guilt, they are the sure refuge of innocence. Listen then on-
ly to the evidence which comes to you from so pure a source, and
guarded with so much caution and humanity ; and if from such tes-
timony you are satisfied of the guilt of the accused, discharge your
duty to your country, your conscience and your God. But if, uncon-
netted with what you have heard from the busy rumour of the world,
the crime is not clearly and fully proved ; fearlessly render to the
accused that measure of justice which you would expect, were you in
their situation. You have heard men say that ii the prisoners escape,
95
no one is safe ! That the fate of Mr. Gadsden might have been yours.
But remember also, that if the prisoners were actually assailed and
mistook the deceased for the aggressor, if there are circumstances
of palliation or excuse, the fate of the prisoners might also have been
yours. A short time since, and they stood as fair as any of you ; you
too may have a wife under your protection, or hear the cries of a
sister in distress; and if you do nut graduate your resentment bv the
scale of cold calculation, you may be led to commit a similar
offence. Imagine yourselves to have been heated with wine, el- ihed
in a military garb, which excites that sensibility to insult, which is a
kin to honour and patriotism ; suppose a wile and unborn child, lean-
ing on you for protection, and put the question to your own hearts,
might not any one of you have acted rashly ? Nay ! Might you not
like the accused, have done a deed at which cool reason shudders?—
If much is due to the public, erring humanity has her claims. If it
be painful for you to take the lives of the prisoners, how delightful
will be your task if you feel it your duty to give such a verdict as
will at once acquit your own consciences, and spare them. But the
expectation of those who indulge a malignant pleasure in witnessing
scenes of human woe, will be disappointed; those who, from an im-
perfect knowledge of the fact, have formed a hasty and unadvised
opinion upon the guilt of the prisoners, will reproach you. You must
prepare fur the sneers and curses of the ignorant, 'he prejudiced and
the unfeeling. But you can turn to the sunshine, which a clear con-
science will beam on your own bosoms, and thus defy the paltry ma-
lice of mankind. But if you would sacrifice your peace of mind, to
a momentary excitement—if you would yield yourselves to influences
which are as transient as they are unfounded ; if you would lay per-
jury on your souls, then and then only, shrink from the firm dis-
charge of your high trust.
I well know that even the counsel of the prisoners have shared the
indignation of the public ; they have been threatened, that to under-
lake the defence of the accused, would be to seal their professional
ruin and draw nown upon their heads, the curses of the community.
In the name of God, why are the altars of justice guarded with such
sacred vigilance ! why does she try in her unerring scales, the weight
of accusation, before she lifts the avenging sword. Why are my
wretched clients mocked with the forms of trial!—Why not tear
the bandage from her eyes, convert justice into a fiend, and in-
fuse into her all the infernal passions which inflame an unthinking
world. Better to break at once the bonds of social union, and bid
revenge stalk uncontrolled, throughout the State, than, under the
solemn farce of legal trial, execute her direst purposes. No, gen-
tlemen, if there was not an individual else, who would bear me com-
pany, and I were called on to afford to the vilest offender, an im-
partial trial according to all the rules of law, I should curse my
coward heart if I flinched from it. I respect the deliberate voice of
my fellow citizens, but they will despise us, gentlemen, if we are swept
away like chaff by every varying blast!—If the prisoners must fall,
96
they shall fall just sacrifices to the offended majesty of the laws—
Xiot victims to fear, prejudice, or vengeance. Permit me then, to
prove to you, from a comparison of the law and the evidence, the
two grounds which I assume.
First—That Michael Toohey is not guilty of the felony charged
against him.
Secondly—That Martin Toohey is guilty only of manslaughter.
To establish either of these propositions, it is first necessary to en-
quire if the killing Mr. Gadsden, in the manner and under the cir-
cumstances detailed in the evidence, amounted to the crime of mur-
der or manslaughter. I contend that it is manslaughter only—and
the better to distinguish between the two offences, I will premise, by
saying that homicide even when designed, is not necessarily murder;
but tbe degree of guilt is decided bv the intention of the agent.—
For " murder is the voluntary killing any p< rson of malice pre-
" pense, or aforethought, either express or implied by law." 1st East
142—3d Inst. 47, 51. From this definition it appears not only that
there must be malice to constitute murder, but that such malice must be
prepense or aforethought; in other words that the blow must be the
result of a pre-determination to do some mischief to the deceased or
some other person. This malice is express where there has been
former grudges or lying in wait, which indicate the premeditation
required by law; and where the blow is given with a deadly wea-
pon, under such circumstances as to indicate that the party must
have foreseen and designed the consequences ; the law presumes that
some prior operation of the mind has induced the blow, and it is ex-
press malice. But where, from the suddenness of the provocation,
and the circumstances under which the blow is given, such premedi-
tation is wanting, the mind is not guilty of murder; and although
the consequences are equally fatal, yet as punishment and guilt
must be proportioned, the law excuses the first offence, and consi-
ders the punishment as a warning so solemn, that for the second
offence it inflicts the same punishment as in case of murder, because
the repetition argues that implied malice aforethought, which marks
that crime.
In the case before you, no antecedent grudges, no lying in wait,
no plain indications of premeditated violence exist. If then the kil-
ling, in this case, amount to murder, it must be from malice pre-
sumed from the circumstances, &c.
In the enquiry if there was malice implied by law, you must
consider ail the circumstances under which the act was committed;
and the most distinct mode of examining the legal ground of pre-
sumed malice, will be to define manslaughter, and investigate those
circumstances of extenuation which distinguish it from murder.
I will not attempt to weary your patience by along detail of cases,
but only mark the genera! principles established in law; and then
apply the circumstances of the present case according to the weight
of testimony.—Indeed the old cases are so miserably reported,
4hat it is wholly impossible to ascertain upon what fact they turned.
97
The gratification of the reporter, his anxiety to support his own,' or
the opinion of a favorite advocate or judge; an affectation of bre-
vity and a didactic style, have all combined to render the reported
cases but feeble and glimmering lights to direct us in our enqui-
ries. As an exmample—Rowley's case, where a father killed a
child who had fought with his son—Lord Coke says, the father
li took a cudgel, ran three quarters of a mile, struck him upon the
head, upon which he died."—12 Rep. p. 87- Croke reports the
same case, and says, « Rowley struck the child with a little cudgel
of which stroke he afterwards died."—Cro. Jac. p. 296. And in
the same case. Godb. 182, it is said he struck with " a rod." From
all these accounts of the same trial, no one can tell whether the blow
given, was with " a cudgel, a little cudgel, or a rod ;" and yet to
strike a child with a cudgel likely to kill, indicates infinitely more
malice than to give an unlucky blow wih "a rod," not likely to do
much harm. In the one case the death must have been designed,
in the other, somewhat attributable to misfortune. This will show
you how little faith is to be put in maxims drawn from cases which
are more venerable from their antiquity than their wisdom ; like
many old medals, which only retain the reputation of intrinsic
worth, because few hsve-courage to rub off the rust that conceals
the baseness of their metal.
In cases affecting property it is more material that rules should
be known, than that thev should be wise, for w hen known, individuals
can accord to them. But criminal law is founded upon the immu-
table basis of moral right, in its most enlarged and comprehensive
sense. Punishment is an evil and should never be inflicted, but to
prevent a still greater mischief. Moral guilt in the individual, and
the safety of society when united, form the true criterion of punish-
ment. Acts so universally ruinous as to produce evil under all cir-
cumstance, are considered from their general bad tendency to be mo-
ral crimes. Those which produce only partial ills, being founded
upon the policy of the particular society which prohibit them, are
considered rather as crimes by enactment ; but, in reality, common
Consent has made the former, and particular convenience consti-
tutes the latter, crimes. It betrays as much moral depravity to vio-
late laws essential to the lives, liberty and property of one's fellow
men, as to destroy their lives, their liberty or their property by di-
rect means. The effect is the same, and moral guilt is the wanton
production of evil. Both betray a " heart regardless of social duty
and fatally bent upon mischief." Without entering, therefore, too
minutely into the attempts of the learned, to make distinctions where
no actual difference exists—without wearying you with argument
more weighty than sensible ; I will only draw the great out lines,
leaving you in your wisdom to supply the rest. It is remarkable,
that no part of our law is so full of contradiction, as that which re-
gards the lives and liberty of the citizen. There ought to be a mark-
ed difference between the crime of murder and manslaughter. Yet
from perusing our law books, you will find it as impossible to
98
distinguish them, as to define the point of contact in the hues of the
rainbow.
I have already defined murder. By " manslaughter is to be
u understood, such a killing of a man as happens either on a sudden
iC quarrel, or in the commission of an unlawful act, without any
t( deliberate intention ojf doing any mischief at all." 1 Hawk, 76.
cc There is no difference between murder and manslaughter, but
(i that murder is upon malice aforethought, and manslaughter upon
lc a sudden occasion." See 3d Inst. 53. These are definitions, long
since established, and the only question for you to determine, is whe-
ther u malice aforethought" can be predicated of the act of killing
in this case: if not, no murder has been committed. It constitutes
tfm very essence of murder, and is presumed to be wanting in man-
slaughter; and the act being imputed to the infirmity of human na-
lure, the correction ordained for it is proportionately lenient. This
is just, for although society suffers as much from the loss of a citizen,,
whose killing amounts to manslaughter, as if he had been murdered,
yet policy must be tempered with justice. It is the result of human
imperfection.- Our greatest virtues and our basest crimes, are but
the extremes of identical passions, and to attempt entirely to eradicate
the latter, would prove destructive to the former: even the pirates
of Barrataria shared in the victory of New-Orleans. All that hu-
man law (an effect, is to apply punishment in such just proportion as to
repress the exorbitant growth of crime, without crushing the germs
of virtue. This is the reason, that sudden contest and heated pas-
sions, are suffer ed to palliate the offence of taking the life of man.
It is necessary to preserv* in the community a sensibility to wrong,
and a readiness to chastise insult and injury: for when duly reguiat-
ed, these propensities direct the destinies of our fleets and armies.
A tame and harmless people woidd be the prey of every marauder.
God made man to protect himself, and even when congregated into
large societies, he still retains his native impulses ; without them he
would be more or- less than man Do not then suppose I plead for
the excuse of deliberate wrong. I only ask allowance for unpremedi-
la ted injury, resulting from the infirmity incident to human nature.
Perhaps the true reason why th j authorities are so indeterminate
upon the distinction bet\ve<.. murder and manslaughter, is the.in-
trinsic difficulty in drawing from facts partially developed, or of
doubtful character, the true moral intention of the agent; and at
last it must be left to the good understanding and humane views of
an enlightened jury. The general design of the agent must he col-
lected from his whole conduct, and I will accordingly investigate
the tendency of the prominent features, and then combine them in a
general view
First:—The nature of the weapon is the strongest indication o«
a prior disregard to social duty, or of implied malice.
But the nature of the weapon must also be taken in combination
with the former habits of the party, as shewing more or less , wan-
tonness in its use, and with the circumstances accompanying the
99
transaction, as proving more or less deliberation. One who is in
the c onstant habit of using an instrument likely to produce death,
has habitually in view iis mortal tendency, and although he use it in
haste, he is not likely even for an instant to forget that it will pro-
duce death. He, on the contrary, who happens, upon an occasion
no way connected with the cause of excitement, to have a deadly
weapon in his hands, and upon a sudden provocation uses it, does
not at the instant reflect upon the consequences, and betrays less of
that malice which distinguishes murder. Indeed one in the habitu-
al use of dangerous weapons, is always on his guard. For example,
a soldier in the habit of wearing a sword, calculates on its deadly
effects, and never uses it, however sudden the occasion, without in-
tending great bodily harm. But a person, unused to it, would re-
quire some small interval, some momentary reflection, to distinguish
bet ween it and any ordinary weapon. Also in the case of the black-
smith, who struck his apprentice on the head with an iron bar, he was
adjudged guilty of murder, for being used to feel its weight, he re-
quired no reflection to apprise him of its fatal effect. Kel. 64 and 65.
Yet ifon a like sudden provocation, a different person had seized a
bar lying accidentally in his way, it would have indicated less deli-
berate cruelty; and (i barbarity makes malice." Keates Case,
Comb. 408.
Upon this ground, it was that the shepherd who threw a hedge stake
at his bov and killed him, was adjudged guilty only of manslaughter,
1st Leach, 378 ; for although a fatal weapon with which to strike
a child, yet the occasion was sudden. He did not reflect on the
consequences.
But where a servant tied a boy to the tail of a horse, to chastise
him, not intending the horse to run off, yet, as he must, from his ha-
bit of life, have known the extreme danger, it exhibited a deliberate
wantonness of human life, and the boy being killed from the horse's
taking fright, it was adjudged murder. Hale 454, Cro. Car. 131.
A mother-in-law threw a three-legged stool at her child and kill-
ed it; but as she could not have reflected on the consequences, it
did not indicate " malice aforethought," and it was manslaughter.
1st Leach 368. See also, 3d Ld. Ray, 1498. From this view of the
law, it results that you must enquire whether, considering the oeca-
sion on which it was worn, the peculiar character of the weapon so
seldom used, and the suddenness of the affray, there could have
been any deliberation upon the fatal consequences of the blow ; if
there was not, then however deplorable the loss of a good citizen,
the offence is not murder. If guilty only of manslaughter, the pri-
soners have not shewn themselves unworthy of continuing in society;
public safety does not require, or moral depravity justify, the inflic-
lion of a disgraceful and violent death. They are not deliberate
murderers. Particular cases have been classed, so that principles
have been deduced from them, according to which every new case
must be decided. Lither actual deliberation or such cruelty as im-
plies a disregard to human life, is absolutely essential to constitute
murder.
100
Next to the nature of the weapon, I will advert to the, suddenness^
©f the affray, as a circumstance to give character to the act.
The case commonly put in the books to illustrate this point is, the
one where two persons strive for the wall. The occasion is wholly
unexpected, and if, from one step to another, the contest increases,
Jblows pass and death ensues, the law presumes that the fatal blow
was given under such sudden excitement, as to preclude any delibe-
ration, and the offence is manslaughter. 1st Hale, 56, 3d Inst. 55.
So in the case of the soldier, who even pursued a woman and stab-
bed her in the back, yet there being a sudden provocation, he was
adjudged only guilty of manslaughter. He was hastening to the as-
sistance of a friend engaged in a quarrel, and the woman attempting
to stop him, struck him on the face with a patten, he returned the
blow with the pummel of his sword, but the excitement of the provo-
cation, made him forget even his manhood, and he, a soldier too, fol-
lowed her when she run from him and stabbed her, but he did it
without reflection—without malice aforethought—it was the infir-
mity of his nature.
It is wholly immaterial whether the original provocation was
real or imagined, if it finally extend to an actual excitement so as
to disturb the operation of cool reason. The guilt depends not up-
•n the reality of thex provocation, but upon the want of deliberation.
Here the law is in unison with sound sense. " And here it matters
" not what the cause be, whether real or imagined, or who draws
" or strikes first, provided the occason be sudden, and not urged as a
Ct cloak for pre-existing malice." 1st East 241. Compt. 28,1st Kel.
17-
And if the contest did not promise at first to be deadly, yet after
the passions are excited, one use a deadly weapon, there can be no
deliberation, and it is manslaughter only.
" The case will not be varied, if on any sudden quarrel blows pass,
(i without any intention to kill, or injure another materially, and in
u the course of the scuffle, after the parties are h'eated by the con-
^ test, one kill another with a deadly weapon," 1st East. 243. As
where, in a scuffle, one man pushed another out of a house, " where-
s< upon the latter instantly turned round, drew his sword and stabbed
& the deceased to the heart, adjudged manslaughter." Rex v. Tay-
lor, 3d Burr, 2793. Thus I have considered how far the sudden-
»ess of the transaction indicates a want of deliberation.
But murder must be committed by a man of sound memory, and
therefore if the prisoners were heated with liquor, although it be not
an excuse, it is certainly a palliation. You will hear it read to you, that
drunkenness is an aggravation of the offence. This cannot be law,
for it is not good sense. In truth, the principles of the law, are the
application of sound sense to the circumstances of the case, and po-
licy enters deeply into the composition of the law, for policy and
good sense are synonymous. The common law of England is but
the judicious application of sound sense to existing circumstances,
and therefore it is, that the real motto of the great common law,
101
judges has been u tempora mutantur at nos mntamur in Wis." The
decisions of Mansfield, would have been legal heresy in the days of
Coke. u For that which we call common law, is not a word new and
« strange, or barbarous and proper to ourselves, and the law that
« we profess as some unlearnedly would have it, but the right term
" for all other laws." So Euripides mentioneth the common law
of Greece, &c.—" and anon he nameth it the golden and sacred
" Rule of Reason." And again—" it teacheth common law to be
■il nothing else but common reason—but what reason ? Not that
" which every one doth form unto himself, but refined reason."—
See Finch 74, 75.
It is on this ground I shall venture the attempt of proving to you,
that " refined reason" does hold it a greater crime to commit a deli-
berate cold-blooded murder, than in the heat of wine and passion to
do a deed, at which the agent shudders in his moments of reflection.
The best man in society may innocently indulge in the social glass,
and not even suspect he has exceeded his strength, and yet the very
exercise of a scuffle, will throw the fumes of the liquor upon his
brain, and cloud his reason ; but none but the vilest, can deliberate-
ly wash his hands in his brother's blood. The one may be guilty of
manslaughter, the other must be a murderer. Taking sound rea-
son as my guide, I lay it down, that if you think the authority in
the books repugnant to that principle, you are at liberty to deeideby
the light of your own minds, for if a jury is not to exercise its own
mind upon questions of moral guilt, there is no safety in our judicial
appeals. Common sense is common law>—" therefore laws posi-
u tive, which are directly contrary to the former are no laws at all."
Finch 75. Nay," all men must agree, that laws, indeed repugnant
to the laws of reason, are as well void as those that cross the law of
" nature."—Id. 76. Having the most venerable authorities of the
law as my apology, I shall even approach the great hierarch of the
law, Lord Coke, and without ado try his doctrine by the only ge-
nuine talisman. He states that drunkenness aggravates crime, and
at the same time admits, that a man, under the influence of intoxi-
cation, is it on compos. The real offence is in getting drunk, in de-
stroying the checks of reason—but then even this offence is height-
ened or extenuated by the mode and mamier. One man may design-
edly drink a large quantity, and still remain tolerably steady ; a no-
ther by drinking half the quantity becomes a madman—nay, the
same quantity which would be harmless at one time,would at another
if the stomach were disordered, affect the head and destroy self-poss-
ession. One may be deceived by the badness of the liquor, for bad
liquor disorders the stomach, and produces delirium, when the same
quantity if good, would be harmless. One maybe insensible of
approaching inebriety until he stir about; yet, Lord Coke without
any distinction, makes the moral guilt and civil punishment the
same. Is this reason ? if not, it is not law, and the authority is not
obligatory on you. One man, expecting to have an affray, inflames
his courage by drinking, another leaves the festive board in peace
with every one, and an unexpected quarrel arises, Lord Coke
O
102
knows no shade in their guilt—vet what man can hesitate? in con-
sidering the voluntary act of one, an aggravation, the misadven-
ture of the other, a paliation. , But policy is said to forbid these
distinctions—death is no less bitter, because inflicted by the hand
of a drunkard ; the loss to society is as severe, the loss of the fa-
mily of the deceased is as much bereaved, as though a dark as-
sassin had deliberately aimed the blow. But policy would eijual-
ly call for the punishment of a lunatic. It is not the consequence,
but the design that graduates the punishment. The best man in
society has been overcome with wine, and fortune may have led
him into some desperate act, wholly repugnant to his natural pro-
pensities. The worst only can be guilty of deliberate murder.—.
Take for example, two friends, who on some occasion of hilarity
drank glass for glass. They quit the scene at the same moment,
equally inebriated, the one in his way home meets with a person,
who being himself sober, makes no allowance for any one else, and
a conflict ensues upon some imaginary cause—passion and intoxi-
cation combine to inflame him, and at length some unlucky blow
terminates the existence of his antagonist. He is arrested, conveyed
to prison, and awakes in a dungeon, bound with chains and exe-
ecrated as a murderer—his friend, equally liable to have encountered
the same fate, and not more conscious of the bloody deed, recovers
from his inebriety surrounded by the comforts of home. The former
suffers an investigation before the tribunals of justice, is condemned
and executed; his name becomes a dishonor to his posterity, and
is branded upon the calendar of infamy. The latter lives a happy
father, husband and friend; dies peaceably amid the sorrows and
lamentations of those who remember him with fondness, and inscribe;
his virtues on his tomb. In the eye of morality they are equally
guilty, but one is unfortunate; both were intoxicated, and there-
fore incapable of deliberate action; yet one retains the respect of
the community, the other is a felon. Do' we not by this decision,
disregard all the dictates of justice and humanity ? Do we not pun-
ish a man for his misfortune ? Bring the instance home to your-
selves, and ask your own hearts, if you would not rather pity than
censure the offender—have you no dear friend, who in the deliri-
um of intoxication, may inflict one fatal blow? Consider what
would be your feelings, if his life rested on your verdict, and de-
cide now as if the accused were that friend ; do to them as you
would wish others should do to yourselves, and you will not fail to do
right. Again, the caution of the law replies, that drunkenness is
a cloak which every villain may put on, and to allow it to give se-
curity to one, would be to encourage its assumption by the vtiest
murderer—the answer is, construe it strictly, look upon the plea
with a suspicious eve, but do not on that account deride that no
man can commit an offence of which he is unconcious from inad-
vertent intoxication. The evidence is conclusive that both the pri-
soners were intoxicated—Michael Toohey was somewhat so, be-
fore he went to the meeting, there, he became garrulous, and when
he left f he room, it is directly proved by Galloway that he was
103
intoxicated. The operation of the liquor was quickened by his
passion and the excitement of the affray. Martin Toohey was al-
so inebriated before he went to the meeting, and considerably so
after he catne out. Three hours elapsed before they were taken>
and the one was in bed, and could not be persuaded even that he
had been in a quarrel; and when roused he refused to escape,
but returned to his brother's house, who had fallen inside of his
own gate. The conversation having induced them to think that the
charge was only intended to frighten them, they had turned their
thoughts to other subjects when they were alarmed by the appear-
ance of the officer of the guard. Had they been conscious of
crime, thev had time to fly. 'Tis true Martin Toohey did, when
his fears were again revived, obey the first impulse of nature, but
this may as well be the result of fear as of conscious guilt; and it
would be rigid to judge him by the severest rules. But Michael
never gave the slightest evidence that he doubted his entire inno-
cence. Whatever then may be his fate, his act, not his intention
can be censured.
The death of Mr. Gadsden was occasioned by a stab, or wound
with some sharp instrument. I have already shown you, that
this mode of producing death, has been viewed with peculiar seve
verity in England, owing tp the political situation of that country;
and as policy enters more or less deeply into the common law of
that country; you are not te suffer its decisions to direct you, ex-
cept their policy coincides with the habits and manners of our own
country. The same intelligence which dictated the early decisions
of the English common law, now exist, and can be applied to pre-
sent circumstances as judiciously. If stabbing was viewed with
peculiar hostility by the old common law, and the reason of this
severity no longer exists, we are not bound by it; and in adopting
the common law of England, we have expressly, although with
somewhat an unnecessary caution, reserved such modifications as
the habits and customs of this state demand. The nature of the
common law includes this reservation ; for it has always changed
with the manners of the age, and when necessary, to meet a re-
lapse to ancient policy, declaratory laws have been enacted. Now
the frequency, of an occurrence is the cause of its prohibition; if
theft, robbery; or even murder itself were rare, a mild punishment
would be sufficient to repress these crimes; but forgery, and crimes
merely of positive criminality, when easy of commission, are re-
pressed by the highest punishment. In fact, the offence of stab-
bing is so rare, that until you entered the walls of this court, I veil-
ture to assert that you never heard that it was peculiarly penal.—
But even under the statute, he alone who gives the mortal blow, is
guilty of murder ; and when there is no unequivocal proof who
gave' the blow, both are guilty only of manslaughter. Iftherefore,
from the testimony, you conclude, that Martin Toohey gave the
mortal blow, and that the quarrel was sudden, so that had the death
been inflicted by other means, it would have been manslaughter;
then Michael Toohey is not guilty at all, as there can be no acces-
104
saries; and it will "be then for you to say, if Martin be guilty of
murder or manslaughter.
If from the circumstances, you are lead to believe there was some
contest, the origin of which is unknown, you are bound to make
such conclusion, the ground of decission. Circumstances it is said
will not lie, that is, facts, all pointing to the same conclusion, are
the. surest ground on which juries can decide even against life ;
much more are they conclusive in favour of life. In the ease be-
fore you, there are strong circumstances all inducing the belief, thai
Martin Toohey was not privy to the origin of the encounter ; but
only interfered upon hearing the out-cry. The true reason why
circumstances are received as strong evidence is, that if the circum-
stances would not m all probability have existed, without the fact
had happened, the existence of the fact, results from the proof of
the circumstances. Apply this reasoning to the case. An actual con-
test, strong irritation and deadly blows are proved; almost instantly
before, the parties were placid and unruffled ; these circumstances
directly lead to the fact, that some unexpected cause of quarrel,
not now known, provoked the contest. The deceased was a quiet
man, and wholly unknown to the prisoners; this circumstance proves
he was mistaken for'the real author of the first aggression. Martin
Toohey in his way home, would not have crossed the street where he
was found, unless some cause had induced him. The cry of murder
was after Michael had called for his wife, and taken her under his
arm. These circumstances prove that Martin must have rushed in
on hearing cries of distress ; Mrs. Toohey was peculiarly unfit, both
as a female, and from her situation to witness an affray. This also
proves that it was sudden and unlooked for. The prisoners were
intoxicated, and the night was dark. These account, both for their
rashness and their mistake. These curcumstances lead to just and
natural conclusions, and when they tend to extenuate the offence
of the accused, their effect is not impaired by being weighed in the
scale of mercy. Then, on the ground that MartmToohey interfer-
ed. in an actual.affray, although he killed one of the parlies, his of-
fence is only manslaughter, (Kel. 61,62,1st Hawk. F.C. SI, sec. 33,
50, 1st East P. C. 291.) The reason why a friend or servant inter-,
feting in an actual contest is excused, if he exceed the bounds of
due caution, is .obvious to every one who ever felt the ties of duty
or affection.
1 have already stated, that where a mortal blow is,given,the per-
son who strikes the blow, alone is answerable if there was no prior
poncen, no mutual design. I admit, that if the result is determined
upon, it matters not who aims the blow. But, where a contest is
sudden, and there can be no concert, the malice which is impli-
ed by the use of a deadly weapon, can only be imputed to him who
employs it: His associates not being privy to it> could not consent
to its use, and the whole reason, why one present, and aiding in the
contest is equally implicated with the actual slayer, is, that he is
presumed to have consented to the death-blow. But as in this case,
the unexpected quarrel and the time and circumstances, all prove a
105
want of concert, and neither could have known what weapon was
used by the other, therefore, they are not to be implicated by each
other's acts; only one mortal blow was given, and its author is alone
responsible for it. If you cannot ascertain him with certainty, you
ought not to secure the real offender by punishing both, one of
whom is innocent. In order to constitute a person present an aid-
er and abetter, it is requisite he should know and consent to the in-
tended violence ; but bare presence does not implicate one, who is
not aware of the force intended to be employed. If two persons
consent even to a fight with fists, where no fatal consequences could
he reasonably apprehended, and one in the heat of the affray, should
draw a knife, and unknown to his companion, inflict a mortal blow,
it wouuld be the height of cruelty to take his fife, for this unexpect-
ed act of cruelty in his companion. The law indeed does not
adopt so inhuman a principle, but requires that the person present,
should also aid and abet in the very act, either actually, by advising
and assisting, or virtually, by foreseeing and consenting to it. Mere
presence is not sufficient; tbi3 point has been long since solemnly
decided in the case of Ilex v Iluggins.—f itzgibbon's Rep. In that
case the accused was present, and even consented in part to the
causes which occasioned death, but not being fully aware of the
whole transaction, he was not involved in the guilt of the principal,
a bare presence without some degree of concurrence in the act,
" will not make a man an abetter"—Kd. 113, Fitz. 186.
Indeed, how can there be malice in one, who although engaged in
the contest, does not even anticipate a deadly blow ? Yet without
malice no one can be guilty of murder.
Rut it may be urged that whoever gave the mortal blow, still they
both afterwards acted in concert, and were accessaries each to the
other. The rule of good sense and sound law is, that if the mortal
blow is already given, no one interfering can be guilty, because he
was not aiding and assisting at or before the blow. " A consent by
" B to a trespass already committed by A, will not make B a trespas-
a ser; and in every felony, a trespass is implied ;—(Cro. Car. 377.
8 Co. 146.)—and, therefore the defendants consent to the acts al-
a ready done by Barnes, and which had then completely constituted
(i the felony, would not make him guilty of the felony." Fitz. 185.
Now, in a sudden affray, the fact of the mortal blow being given, can
only be known when the felony is complete, and this is the reason,
that none but the agent is implicated under the statute of stabbing,
A further illustration is given in the same book :—u it is not to be
" thought but that the cause of his death was before the defendant
" saw him, for he lived but a short time after that; suppose then a
{< mortal wound given, and then a second wound given not mortal,
" the second person connot be guilty of murder"—Id. 183. Again,
consent, which (in' this case makes the defendant's crime) is the
" act of the mind, and so it ought to be made out by facts."—Id.
These authorities fully support the doctrine, that a party is not
guilty as accessary, unless he consent to the cause which produced
the death.
106
I have thus, f fear, tediously discussed the principal doctrines
which apply to the case before .you, and will now with all the brevi
ty the cause admits, comment on the testimony. Before I proceed
to state such parts as 1 intend to apply to the legal grounds, it be-
comes requisite to point out the nature of one species of evidence,
and the extent of credit to which it is entitled. The dying decla-
rations of the deceased are given in evidence, although not given
upon oath in the presence of the court. This departure from the
law,-which governs the admission of testimony, has been accounted
for very unsatisfactorily by most writers. They say, that the solemn
impression which approaching dissolution makes upon the con-
science, is equivalent to an o^th administered in the courts of jus-
tice. This is not the reason of the exception, and were it the only
-one, the law would be absurd. Those who are killed in most en-
counters, are partizans heated with passion, and often the real ag-
gressors. Under those circumstances, even death itself loses its
terrors. The ruling passion is sometimes strongest at that moment,
and the deceased is often under all the prejudices of interest, feeling
pride and revenge, when he delivers that testimony which is suffer-
ed to be ranked with solemn declarations on oath. This species of
evidence wants most of the requisites of legal testimony. It is not
given under oath, nor in the presence of the accused, or of the
judge, no opportunity is afforded for cross-examination, so that
even if it be true, it is of no more weight than a mere affidavit.—
.The only rational excuse which can be given for this departure
from all the safeguards, by which the purity of testimony is secured,
is necessity. But then justice demands, that such evidence should
he cautiously received and scrupulously weighed, and every inter-
pretation favourable to the accused given to it. In the present in-
stance, Mr. Gadsden said " there is the man who assaulted me."
Death then sealed his lips forever. But had the accused an oppor-
tunity of asking the questions—and had Mr. G. answered that he did
see some one strike Mrs. T. and grossly insult her—and when her
husband with the indignation which would, fire the bosom of every
man of common feeling, attempted to rescue his wife and unborn
babe from the ruffian grasp of the assailant, that he saw the brother,
hastening to the spot, and that the offender made his escape at the in-
stant, when he pressed forward generously intending to offer his
assistance. That both brothers, misconceiving his motives, fell
upon him, and that in the contest, there was not time for explana-
tion, and in the darkness and confusion of the scene he received
the mortal blow ; that the whole transaction was so rapid, that even
he saw and remembered it indistinctly. Had Mr. Gadsden lived
long enough to have made these explanations, which are not in-
consistent with what he did say, could you fmdit inyour hearts to
condemn as cold blooded murderers, the husband and the brother,
who with such motives and such feelings, were the ill-starred agents
in his death. Dying declarations may be the truth, but they are
not the whole truth; and to garble the truth is as conducive to error,
as to assert falsehood. Without supposing the declaration^ of the
107
deceased to contain oracular disclosures of the whole transactions;
you are still left to the great enquiry,—what was the origin and
cause of the fatal affray ?
Having endeavoured to develope the principles by which the facts
must be tested, I will proceed to discuss such points of the evidence
as seems to me most material. The transactions of that day which
have proved fatal to the peace of so many innocent persons, are all
essentially connected. You cannot judge of its tragic close, with-
out adverting to all that occurred. It was a day of rejoicing, the
citizen assumed the garb of the soldier; no feelings but those of joy
and honorable pride, agitated the bosoms of all interested. After
the military services of the day, Michael Toohey returned to his
home, and only quitted it again, to comply with the obligations of
courtesy. Tt was his custom not to leave his house at night unless
accompanied by his wife. This habit proceeded from his love of
domestic peace, his affection to the inmates of his home. Pardon
me, if I urge to you this, as a trait in his character, wholly incon-
sistent with the charge of wilful murder; and I feel that the argu-
ment is doubly powerful to a jury selected from a community where
private virtues are so much respected, and so justly appreciated.—
There is a charm in the halkswed scenes of home, that appals the
heart of the sturdiest villain. He who can sooth his bosom with
domestic enjoyments, is incapable of harbouring malice and re-
venge. Love, like a guardian angel scares intrusive vice from the
retreat sacred to virtue and to peace. You must search for
malefactors amidst the haunts of vice, rioting in licentiousness and
debauchery—perhaps they may be found usurping the retreat of
those whom they imitate in ferocity without the excuse of imperii
ous instinct. But, that a good husband and a kind father, should
be converted in an instant to a remorseless butcher, is repugnant
to every principle of human action. Vice is progressive, and in
the untutored mind, excites only abhorrence and contempt. Time
and habit alone render it tolerable, and even the most callous of-
fender shudders at her horrid rites; would he then celebrate them
in the presence of his wife, and at the hazzard of his unborn
offspring ? From his own house, he went to Mr. Hvams', and tho'
some.evidence has been given of his altercation with Mr. Marks, I
cannot offend your understandings so far, as to suppose that you
can connect that trifling occurrence, with the transaction under in-
vestigation. He must have been a vidian of no common t stamp,
to give his hand in friendship to one, whom he quitted with a de-
sign to waylay and murder. It was a paltry affair, and, but for the
subsequent circumstances, would have been forgotten. This is
confirmed by the testimony of all who were present. Mr. Hyams
expressly swears, he sat the whole time with his infant in his arms,
and had any thing serious occurred he would have noticed it. Nay,
Mrs. Toohey remained in social conversation the whole evening,
with those very persons, whom it is pretended her husband wa?
watching to murder. But the fact which conclusively proves that
Marks was not the object, is, that Mrs. Toohey, the very instant
108
Before the cry of murder, had left Marks and his wife in conversa-
tion in Hyams' house, and could easily have communicated
that fact to iler husband, who very naturally would have enquired
for him, had he been the destined victim. At the meeting, ail the
witnesses testify, that the brothers gave no indication of harboring
any evil design. Indeed, had they been hatching murder, they
would have been retired and cautious; but in fact, they were ob-
trusive and noisy, like men merry with excess of drinking. If any
design had been formed, Michael Toohey would never have suf-
fered Mr. Galloway to button his surtout close, so as to impede the
use of his sitte arms. If he ever drew a bayonet, which is not
proved and highly improbable, his surtout must have been forced
open previously; for if he was too tipsey to button it, he would
scarcely have been able to have unbuttoned it in the midst of a
scuffle.
The language of the prisoners to each other is a strong evidence
that no design existed. When they left the room, one brother cau-
tioned the other that he was tipsey ; the other replied,—" I know
it brother, will you see me home ?" This did not look like pre-
concerted assassination. No man could harbour in his bosom at
one moment, the affection of a brother and a thirst for innocent
blood. After we trace the prisoners to the threshhold of Galloway's
door, we have no distinct evidence until the rap at the window. By
connecting the testimony of Mr. Hyams we find that his wife heard
the cry first, and called to those below ; and that even they heard
it so soon after Mrs. Toohey left the room as to excite a strong
suspicion that the affray had commenced before Mrs. Toohey had
got round the corner. It may be, there was a quarrel, and that Mr,
Toohey and his wife were unawares surrounded by the combatants;
the circumstances point to this conclusion. A strong reason to
believe there was some quarrel, besides the one which resulted in the
death of Mr. Gadsden, is, that a person was present who has not
'been accounted for ; and, who was plainly exasperated. He spoke of
fighting. He asked, if that was the way they fought ? This im-
plies that he expected and was himself ready for a different mode
of contest. It amounted to a challenge, to renew the riot. This
circumstance, though trifling in itself, becomes momentous when
connected with the other facts. A man with his wife, and she par-
ticularly unfit for scenes of tumult, his brother just parted in good
nature from his company, and a stranger, whose evidence might
have cleared the whole transaction, found in a violent rage, calling
the prisoners, cowards I rascals!—bantering them with not fight-
ing fairly. The conclusion, from all these facts, seems inevitable
that that man knew more than it was prudent to disclose. The
prisoners did not know him, and could not have called him as a wit-
ness. He was unembarrassed and willing for a contest. The pri-
soners had no inducement for one. This mysterious stranger might
have answered the question of Mr. M'Dowail—" Who began it ?"
" Did you see the begining of it ?"—-The presence of this unknown
character is distinctly proved, and no reason has been assigned fot
109
his absence at the trial. Immured, as were the prisoners, from the
period of their arrest, it was impossible for them to secure his testi-
mony. If it be true, as the circumstances strongly indicate, that
he was the author of the quarrel, his pwn safety will keep him
silent 5 could he have been brought before a court of justice, he
might, from the reproaches of a guilty conscience, have been induced
to reveal the true character of an encounter, whose mystery is on-
ly equalled by its fatality. The conduct of this unknown indivi-
dual, can only be reconciled by the supposition, that he had been
engaged in some contest, prior to the approach of Michael Toohey
and his wife ; and being violently resisted, he protested against the
mode of fighting. And his cautious avoidance of any judicial in-
vestigation, is a strong circumstance to induce the belief, that he
dreaded to disclose his own agency in the afifair.
The testimony of Mr. M'Dowall, has been given with so much
candour, and his character is so perfectly fair and unimpeached,
that the most implicit confidence iste be placed in all he has stated.
He simply tells yeu, that he saw Mr. Gadsden and both of the pri-
soners, that Michael Toohey could not have had a weapon in
his hand, and that he saw Martin Toohey strike and pursue the
deceased with his bayonet in his hand. He saw only one blow which
could possibly have been fatal, for the one given by Michael was
with his fist, and the mark of the blow was evident upon the de-
ceased. Thus his testimony does not prove who gave the mortal
blow. But if there is any doubt upon that point, I have already
shown that neither can be convicted of murder. Mr. Sutcliffe is a
witness who would willingly tell the truth,but his fears had so complete*'
ly got the better of him, that he saw things which never happened,
and confounded those, which were distinct. A conclusive probf that
his memory is confused, is drawn from the fact, that he stated he
saw a number of persons coming up at the moment he saw Michael
Toohey strike a man leaning against the fence 5 when in truth Mr.
M'Dowall proves that Michael gave but one blow, and that with his
fist, when Mr. Gadsden was near him. Mr.M'Dowall was there before
Mr. Sutcliffe, beyond all doubt, for he was at Galloway's door, not
twenty yards from the spot when the first cry of murder was given.;
and he crossed instantly; whereas Sutcliffe was sitting in his own
house when he first heard the cry, and heard it repeated from
thence, 'till he came to the spot, where he saw a number of men
approaching. Mr. Sutcliffe pretends to have seen Mr. Toohey iff
the act of sheathing his bayonet, at a moment when Mr. M'Dowall
held him by the arm, and says he could not have had a weapon
without his having seen it. Mr. Sutcliffe ran out in his night-cap
and slippers, and tells you he kept at a respectful distance from the
scene. Fear, not only magnifies, but actually creates objects of
terror. And a jury can as illy depend upon the testimony of one
so entirely the dupe of his fears, as upon the stories of the good
old dame, who mistook in the dark, the bright eyes of her favourite
puss for tjbe devil himself. He saw every thing through the false
medium of his own frightened imagination. A drawn bayonet?,
F
110
men in uniform, a confused assemblage, and the cry of murder, is
all he can pretend to relate with certainty. But to state the order
of time, or designate with precision the parties present, is wholly
out of his power. It would be trifling with justice, to affect the life1
of a fellow-being, from such imperfect evidence. But perhaps it
may be retorted, that if he is not to be relied upon, there is no
evidence of the presence of the third person, who was heard re-
proacliing the prisoners and inviting the contest. It is, however,
easy for a man to confound and to exaggerate what he sees under the
influence of terror, but even his state of alarm, great as it was,
could not have induced him to imagine expressions so wholly un-
connected with what he saw. He states that the little man re-
proached the prisoners, calling them rascals and cowards. There
must then have been some foundation for this part of his testimony.
Objects of sight may be magnified and distorted, but the ear would
not hear what was never uttered. Some one must have used ex-
pressions similar to those deposed by the witness; M'Dowall says it
was not be; and neither of the prisoners could have said any thing
of the kind ; their author then was the secret cause, or at least the
witness of the first onset, and could alone explain the motive and
cue to action, which led the accused to the fatal encounter.
I have already proved that if one of the prisoners ,did not con-
sent, or abet the other in giving the mortal blow, he is not equally
guilty. I will now establish from the evidence, that Michael Too-
hey could not have anticipated or known of the use of a deadly
weapon ; and that he is, consequently, not implicated in the guilt.
All the facts before adduced to show, that the occasion was sudden
and the encounter unexpected, establish that there was no precon-
cert. *If deadly weapons were to have been used, Michael would
have had his surtout unbuttoned. He himself struck with his fist ;
this proves he intended only to beat, not to kill. The night was
proved, by all the witnesses, to be so dark, that a white man could
not be distinguished from a black, at a distance of a few feet. Mi-
chael Toohey was in a violent passion and somewhat intoxicated,
he would not, therefore, have observed his brother, or have expect-
ed him to use so unusual a weapon; not even thinking to draw his
own, he never could have expected his brother would use his bay-
onet. All this proves he did not consent, (for hedid not know of it)
to the use of a deadly weapon. His anxiety to repeat his blow with
his fist, precludes the supposition of his having before known, that
a mortal wound had been given. lie could not wish to mangle,
whom he bad murdered. This then is the case of two persons,
mutually engaged in a contest not possible to result fatally; one un-
known to the other, draws a deadly weapon and gives a mortal
thrust; the combatants are separated, and then, (ox the first time,
the other ascertains that his companion used a weapon of death ;
are both equally guilty ? Put the question home to your own bo-
soms ; had either of you been concerned in an affray, and bad your
associate without your knowledge used a mortal weapon, would
your conscience have reproached you as a murderer? A man who
Ill
would abhor the shedding of human blood, might be thus unfortu-
nate.
The attempt to escape will be urged as a proof of conscious
guilt. If it be one, then the neglect to do so, is an indication of
conscious innocence. The evidence proves, that after the encounter,
Michael and his wife returned to their home, and that Michael was
so intoxicated as to fall inside of his gate, and continued there some
hours. His wife shewed no signs of having witnessed a murder. No
attempt was made, no preparations on foot for an escape, although
from three to four hours had elapsed before he was arrested.
When taken by the guard, he behaved peaceably, asserted his
innocence, and to this moment has conducted himself like a man
accused of a crime, of which he was wholly unconscious.
Martin Toohey is also traced to his own home in a state of com-
plete intoxication. He was put to bed, and found by the witness
in a sound sleep. As this was immediately after the fatal occur-
rence, it proves he must have been so far inebriated as to have been
ignorant of the deed he had perpetrated. When roused, he could
with difficulty be persuaded to escape ; and like one actually awak-
ened from a drunken sleep, he struck at his neighbour, who came
to apprise him of his danger. Thefe is some discrepancy in the
testimony relative to his putting on his belt and leaving the house,
but this shows that the witnesses have not concerted a story fitting in
every minute incident, but speak from the best of their recollection.
After he had left his house, he still was unwilling to fly from a
crime of which he had no knowledge. Arriving at Boundary-street,
he refused to proceed and returned down King-street to his brother's,
to enquire if he had committed a murder. After the younger bro-
ther had communicated the story of the death of Mr. Gadsden, the
prisoners could not be persuaded of their agency in it, and had
turned their conversation to other topics. They had ample time to
escape, but they thought the charge only made in jest, till their ap-
prehensions were revived by the arrival of the officer with the war-
rant of arrest. Then, it is true, nature did prompt Martin to escape.
For the first.time.he thought the charge serious. His mind afforded
him no evidence of it. His attempt to escape then, was the power-
ful impulse of self-preservation, not the suggestion of conscious
guilt. All that can be inferred from it, is, that he is a man, urged
by the strongest instinct God has implanted in the human breast.
As long as humanity is weak and erring, innocence will afford but
an imperfect shield. The innocent, in ail ages have been the vie-
tims of unfounded accusation. Therefore it is, that nature prompts,
even the innocent to fly from the danger of unmerited punishment*
It is fearful even to be charged with crime.
There is much doubt as to the real complexion of this case. We
have no facts which point to the motive of the accused. In this
suspense, they have resorted to the testimony of a well spent life.
The character of the elder brother has been given by eight or ten
witnesses, all of whom knew his general character, and many
were intimately acquainted with the whole tenor of his conduct.
112
He arrived in this country with nothing but health and industry.
He has now a wife and family, and has amassed the means of bring4
ing up his children with decency and credit. His integrity has ser
cured to him, the confidence of men of business. But he was not
satisfied to enjoy the fruits of prosperity alone. He called, from the
land of oppression, that brother, whose unhappy destiny is now so
awfully united with his own. He has felt a husband's love, a fa-
ther'sjoy. The inmates of his home, where his temper is undis-
guised, unite in confirming the correctness of those who have testi-
fied to his general character. One of the witnesses said emphati-
callv, he believed he knew him well, " and he was the last man
u who he should expect, would be charged with taking the life of
u his fellow-citizen." The witnesses on behalf of the prisoner, and
those called by the State, agree in stating', that Michael Toohey
has never exhibited any traits of malevolent or vindictive temper.
It is true, some have added that he was hasty and easily excited;
but this only comfirms his general'character." Men of quick
temper are never malicious. The dark passions of the soul are
implanted in the bosoms of the cold-blooded and phlegmatic. The
poisonous vapour is exhaled from the still and mantling pool. The
best men are led astray by the "hasty spark of passion; none but the
worst can take the life of man with malice aforethought.' But an
attempt has been made to cast a shade upon the character of Mi-
chael Toohey. Some neighborhood reports have been whispered
about, that he has been unkiud to his wife. She denied it, and his
whole household confirmed her. Do not listen to such surmises.
Where is there a family, whose summer of happiness is forever un-
disturbed by a storm, whose sun is never clouded; and if tatling
gossips prate of every domestic feud, no man or woman would be
sure of an unblemished reputation. ■
In regard to Martin Toohey, all that his short residence among
us enabled him to prove, was, that he has always been industrious
and peaceable ; let me add, he too is a husband.
In prosperity, surrounded by friends, whose interest prompts them
to defend us from'accusation, character is considered so common
an appendage, that its value is not duly appreciated—but in the
dark scenes of adversity, when friends forsake us, and the storms
of misfortune* thicken to a tempest, then, like the beacon to the sea
tossed mariner, an unblemished character, will sometimes direct
us to the haven of safety. 'You will turn from the perplexity, in
which the origin of the contest is involved, to find an inducement
sufficient to have prompted the accused to the encounter ; and if
you find them men, not'eager for quarrel, not habituated to riot,
but on the contrary quiet, industrious, domestic characters, you will
naturally indulgeyour candour and humanity in divining some other
impulse, than the workings of a wicked and depraved heart. I
have now discharged my duty to my clients ; 1 am sensible how in-
adequate have been my efforts, but I have the consolation of being
conscious, that they have been made with sincerity. From the
whole I conclude, that Michael Toohey was not privy to the death
113
of Mr. Gadsden; and, that Martin Toohey acted with precipitation,
but not maliciously, and his offence is only manslaughter. I freely
admit that this, like all questions of guilt, proved by circumstantial
evidence, may be variously interpreted; but you are but men and
should judge with lenity the offences of erring mortals. If you can
in mercy take a favourable view of the case of the prisoners—imi-
tate him before whom you must stand in judgment—send them once
more into the world; if they are innocent, you but do them justice,
if guilty, with all their sins upon their heads, it will prove to them
but a dreary wilderness.
WILLIAM CRAFTS, JUN. ESQ.
Counsel in behalf of the Prisoners.
may it please your honor,
Gentlemen of the Jury.
We approach the catastrophe of this laborious and interesting
trial. The fate of the prisoners, so long held in agonized suspense,
will speedily be determined. The whirlpool is near, which, if they
pass it not in safety, must engulph them forever. They are literally
at sea in a storm—the current drives them on the rocks—you must
extricate them or they perish.—Who but a stoic can behold with
apathy, who but a misanthropist regard without emotion, a scene
so awfully and distressingly peculiar?—Two brothers dread at your
hands a common grave—two sisters implore you, not to doom them
to a common widowhood—two infants, yet unborn, your verdict
may compel to open their eyes, if ever, on infamy and blood. Surely
in this jeopardy of life—this family affliction, there is enough of
calamity without the aid of popular passion, which comes to excite
the fires of justice, and breathe revenge upon them. Sometimes
in the defence of a citizen, charged with violating the laws, I have
had the good foi tune, to find public opinion embarked in the same
current with myself, and have been cheered in my exertions by
surrounding sympathy. Generally I have found it in a state of
evetmess and tranquillity, which perhaps is the situation, most fa-
vourablefor the cause of truth and justice: never, on any occasion
have I known it so hostile, so clamorous and so resentful, as against
the prisoners at the bar.—It is not confined to them. Their coun-
sel, who dare not honestly refuse their defence, share in the odium
which they have incurred. We hear in the streets, imprecations
against our clients with sorrow, for we know how contagious and
how unreflecting is public sensibility, and yet without surprise, for
with such a cause of excitements, we cannot wonder at its violence.
114
There is a poison in the atmosphere—it indicates like other poisons,,
the extreme fertility of the soil—it results from the benevolence of
the heart, and its inherent aversion from blood and crime—It is na-
tural that all our sensibilities should rise en masse, at the melon-
choly occurrence/ which produced this enquiry. Whata peaceful,
unoffending citizen torn suddenly and violently out of life—all his
hopes prostrate—all his powers cancelled—without time for prayer,
or penitence—his wife plunged instantaneously into widowhood, and
his children into orphanage—parted forever, without a blessing or
an adieu; and this not in time of war, in an unfrequented wood—
but in profound peace, in the market-place of a civilized city, with-
out any known cause too, for he had no enemy ! When ! when did
death, awful as he is, in his mildest form—when did he come upon an
unhappy mortal, so cruelly, so suddenly, with such afflicting asso-
ciations ? we should be less than human not to feel horror at such a
transaction, so destructive of the peace and character of our city-
But gentlemen, public feeling and prejudice have their appropri-
ate sphere, where they may expand into giant size, and rail with
relentless fury. Here, they have nothing to do. When you begin
to investigate, you must cease to feel—the calumnies that are pant-
ing for admission into this tribunal, must waste themselves in im-
potent rage against its walls—in vain would they deprive the ac-
cased of an impartial trial—in vain do they arraign the counsel who
defend them—in vain do they censure the court for granting them
the miserable privilege (never before denied) of communing with
their counsel during this investigation.* You will—you must con-
scientiously disregard them :—You will listen not to popular clam-
ours, but to Goo and your consciences; you will accord to the pri-
soners all they ask.—justice.
If, in the remarks, it is my duty to make to you, I should be tedi- .
ous, think of the importance of the issue to the prisoners, and
consider the responsibility of those, who stand between their
clients and the grave.
We have to contend with prejudices in law, as well as fact. The
course of the trial has already shewn to you, that we intend to rely
on the drunkenness of the prisoners as destructive of the deliberate
intention, necessary to constitute murder; and as a mitigation of
the homicide, if they committed it—But we are met at the thresh-
hold, with a dictum of law, which every body appears to know,
and no body appears to have examined, that drunkenness is an ag-
gravation of crime. That murder committed by a sober man, with
the worst motives and the greatest deliberation is only murder—but
that murder committed .by a drunken man, although incapable of
reflection, is more than murder. It is but fair to test this proposi-
tion by the converse—if there be more of crime in the crimes of a
* The Bar, in which the prisoners are placed during trial, is elevated and
some distance from the seat occupied by the counsel, which precludes them
from the opportunity of conferring with the one on trial. On this occasion, at
the solicitation of their counsel, the Judge permitted the prisoners to ^slt behind
them, which circumstance created much public disapprobation.
115
drunkard, there must be, it would seem, more of virtue in hisvir-
tues—but he would deserve ridicule, who should attribute superior
merit to acts done in intemperance, over those in sobriety—the truth
is, the position is not law, as has been already shewn, but a quaint
conceit, possibly of some efficacy in guarding public morals, but
totally misapplicable, in the administration of justice.—And this is
obvious to every man of common sense \ for what are the usual ef-
fects of drunkenness ? To dismantle the mind and the body—to ren-
der us impotent either for good or ill—to destroy the judgment—
to defeat the will—to inflame the passions—to render us ignorant
of what we do or suffer—to stupify the present—to confuse the fu-
ture and to annihilate the past. A drunken man is not a free agent—
and actions are fairly imputable to men, only so far as they are free
to do or avoid them.— How then can a crime, whose essence is a
sane and sound memory and discretion, be imputable in a higher
degree, where liquor has deprived a man of discretion and memory ?
How can deliberation and reflection be predicated of an individual,
who has not even the use of his external senses ? How can wilful-
ness of intention be ascribed to him, whose passions and infirmities
have thrown over himself and his actions, an inextricable mist. The
truth is (I say it not to palliate drunkenness) it renders the perpe-
trator of an offence less criminal, because it disproves, according to
the degree in which it exists—criminality of intention, which is the
essence of crime—with the exception however, of the case of him
who inflames his system with liquor, to find courage or excitement,
or excuse for any previously existing malicious design. This, I
understand to be what is meant by Burlamaqui, when he speaks of
voluntarily contracted drunkenness.
In the rule which I lay down, I am supported by Dr. Paley.
This distinguished writer on Ethics and Theology, in page 249 of
his Moral Philosophy, discusses the question, u how far drunkenness
" is an excuse for the crimes which the drunken person commits ?"
And makes the following remarks : " In the solution of this ques-
" tion, we will first suppose the drunken person to be altogether
" deprived of moral agency, that is to say, of all reflection and
" foresight. Iq this condition, it is evident, that he is no more ca-
" pable of guilt, than a madman, although like him, he may be ex-
t£ tremely vicious. The only guilt for which he is chargeable, was
u incurred at the time, when he voluntarily brought himself into
tl this situation. And, as every man is responsible for the conse-
<( quences, which he foresaw or might have foreseen, and for no
ie other; this guilt will be in proportion to the probability of such
" consequences ensuing. From which principle results the follow-
" ingrule;—that the guilt of any action in a drunken man, bears
" the same proportion to the guilt of the like action in a sober man,
" that the probability of its being the consequence of drunkenness,
" bears to absolute certainty. By virtue of this rule, those vices
ec which are the known effects of drunkenness, either on general or
" upon particular constitutions are in all, or in men of such consti-
" tutions nearly as criminal, as if committed wjth all their facilities
116
t( and senses about them. The guilt of a crime, if a sober man
*l had committed it, is the whole guilt. A person in the condition
<£ we describe, incurs part of this at the instant of perpetration,
et and by bringing himself into such a condition, incurred that frac-
u tion of the remaining part, which the danger of this consequence
t(> was of an integral certainty. For the sake of illustration, we
(t are at liberty to suppose that a man loses half his moral faculties
tl by drunkenness. This leaving him but half his responsibility, he
(( incurs, when he commits the action, half of the guilt. This
<l makes him chargeable with half of the remainder, so that alto-
" gether he is responsible in three-fourths of the guilt which a sober
M man would have incurred by the same action.''
Nor is this graduation of criminality with drunkenness, peculiar
to this learned author, for it has not escaped the notice of Black-
stone himself, who quotes and adopts the remarks of Montesquieu,
shewing the relative guilt of inebriety in Italy, Germany and Spain.
And it is observable, that the English commentator agrees with
complacency to ihe dictum of the French casuist, that a German is
entitled to drink more than a Spaniard, but if the reason be correct,
not a drop more than an Englishman.—4, Bl. Com. p. 26.
The Romans regarded drunkenness as a mitigation of criminal acts
committed under its influence—and the punishment in some cases
was wholly remitted, " per vinum delapsis capitalis poena remit-
titur
If then the facts in this case shall satisfy you, that the prisoners
at the bar, in the perpetration of the act alledged against them, were
in a state of extreme intoxication, so that their senses were lost or
greatly impaired, their reason prostrate, and themselves entirely
ignorant of what they did or said, then in such degree as the facts
will authorise, you are to believe them, the unconscious and unwil-
ling instruments of wrong or violence, and are to regard them with
the commiseration which human nature asks for its infirmities, and
®f which it stands, alas! too much in need—for " the law (says
" Blackstone) pays that regard to human frailty, as not to put a
<l hasty and deliberate act, upon the same footing with regard to
" guilt." This position, gentlemen, is all that I ask you to adhere
to, in the investigation of this case—but you will be told in the bad
Latin of Sir Edward Coke, that a drunkard is, '{voluntarius dee-
mon." This, if it mean to specify any particular class of drunk-
ards, means I presume, those who get drunk on purpose, with a
particular malicious design—of these I have spoken before, and if
you can discover any evidence of this kind against the prisoners,
you may convict them of murder. But it will not be denied that
drunkenness is frequently, nay, in most cases, accidental; and " the
law distinguishes (says Blackstone) between a hasty and a deliberate
act. Liquor overtakes sometimes the most cautious; its effects are
Uncertain and unexpected—there is no reasoning either with or about
it. Its power depends on the nerves, on the stomach, on the passions,
on the constitution, and, as Montesquieu observes, on the climate.
With some it is omnipotent, with others harmless—it would be more,
117
frequently avoided if it could be foreseen; but, as a man's being
caught in a shower, is no proof that he designed being wet, so,
becoming tipsy, on a festive occasion, is no proof that a man de-
signed to be drunk.
Now. gentlemen, you have observed, perhaps, the process of in-
toxication. It resembles somewhat the launching of a ship—as in
the latter case, shore after shore is knocked away and the fabric
remains erect and motionless, until the last being removed, it is seen
reeling among the winds and waves—so glass after glass is exhaust-
ed, and a man retains his equanimity until one more is drunk, and
this highly gifted being slides from his moral and intellectual ele-
vation, and sinks into a brute. But, as there are some vessels which
anticipate the design of the architect and rush into the waves with
premature velocity—so, there ^re some men, who, with less than
usual stimulus, are dismantled of their reason ; and, as others again
sometimes resist all attempts to move them and remain on the
stocks, in spite of all the skill and labour of the artists—so, there
are some men so happily constituted, that they survive without in-
jury all attacks upon their temperance. But, whatever be its pro-
gress or its power, the effects of intoxication are universally such as
I have described them.
Now let us revert to the legal definition of murder, and then ap-
ply it to the facts in the case :—" Murder (4th Bl. Com. 194) is
when a person of sound memory and discretion, unlawfully killeth
" any reasonable creature in being, and under the king's peace,
" with malice aforethought, either express or implied." The kill-
ing must be " wilful, deliberate and malicious"
To make the intent deliberate, all required is, that the offender
have an opportunity to recollect the nature of the offence he intends
to perpetrate.—Beviile, page 25. Another author explains delibera-
tion to be " an act of reflection with a view to a choice." "Deliberate
" killing-, without passion, is murder. After the intent is formed, if
" the offender have time to reflect, &c.it is murder."—Beviile p. 34.
The act being ascertained to be wilful and deliberate, it remains to
be proved malicious, for this is an essential ingredient in murder.—
1st Hale P. C. 454. Malice express, is where there is a formed de-
sign of taking away another man's life, or of doing some great
mischief. " Which formed design is evidenced by external circum-
" stances, discovering that inward intention, such as lying in wait,
" antecedent menaces, former grudges, and concerted schemes to
" dohim some bodily harm."—4th Bl. Com. 199- " Malice im-
(i plied, imports such wickedness, which includes a circumstance at-
" tending an act which cuts off all excuse."—2d Ld. Ray. 1487.—
Implied malice depends on circumstances, and these must be such
as are the ordinary symptoms of a wicked, depraved and malig-
xiant spirit.
Now, keeping in view these legal definitions and regarding the
evidence, you are to determine, whether the homicide, if any
committed by the prisoners, be the crime above described or ano-
ther, and a lesser offence, namely manslaughter, to, which I shall
Q
118
presently turn your attention. And in this enquiry, you are not to
forget the humane presumption of innocence, which the law raises
in behalf of the accused, and which should continue until their
conviction.
What are the circumstances, which have been given in evidence ?
Where is the proof of wilfulness—of deliberation—of malice ex-
press or implied—of antecedent threats or grudges—of general or
individual revenge and hostility ? Where the proofs of design and
preconcert r It is not pretended that either of the prisoners, ever
had any quarrel or even acquaintance with the deceased—that they
were actuated by any motive, such as ordinarily impels the assas-
sin—revenge or plunder, or jealousy. Nor is it alledged that ei-
therof them cherished resentment ^against any individual, unless
the circumstance of the dispute with Mr. Marks' child, be relied
on for that purpose—although it is obviously inadequate thereto,
and indeed if it proves any thing, shows perhaps some cause for
resentment 011 the part of Mr. Marks.—The prisoners meeting at
Galloways' was fortuitous—Mr. Gadsden's passing there was still
more so—neither could have been foreseen—neither could have been
preconcerted. The conduct of Michael Toohey on that evening
disproves all malicious design. It appears that he paraded with
the Irish Volunteer Corps in the afternoon as well as his brother;
that he returned home intoxicated—that there was to be that even-
ing a meeting of the Corps at Galloway's, where they were to be
treated by their captain, who had recently returned from the north.
That he wished to attend the meeting, but said he would not, as his
wife, who was accustomed to accompany him on all occasions in
the evening, declined doing so. That she, finding he would not
go alone, and fearing that liis absence might appear disrespectful
to his captain, then agreed to accompany him as far as Mr. Hy-
ams' opposite to Galloway's and persuaded him to go—that she
assisted him in putting on his surtout, which became necessary
through his inebriety—that he left her at Hyaras' as was his custom
and.went to Galloway's—that while at Hyams' he offered to apolo-
gize to a Mr. Marks, who was there, on account of some little dis-
pute with his son; but that Mrs. Marks appearing unsatisfied, he
withdrew the apology. That they parted quietly and in apparent
friendship, and he went to Galloway's. That after awhile, he and
lii» brother became conspicuous for their noisy familiarity with the
officers and others, and being evidently drunk, it became advise-
able to persuade them to leave the room. That they had been
there sometime and drank freely, that they were drunk when they
went there—that in leaving the room Mr. Galloway buttoned the
surtout of Michael Toohey for the reason before mentioned, and
that his bayonet was under his surtout. That he did not leave the
room until twice sent for by his wife—that he and his brother were
in perfect good humor with each other, and that Michael addressed
Martin in terms of strong affection—that Michael when intoxicated
is more good natured than at other tunes, frequently shedding tears,
and tha| his habit,(if it be one) of intoxication, was consequent upon
119
the calamity of the sudden death of one of his children—that he
knocked at the window of Mr. flyams' house, which was the usual
signal for his wife to come out; that she did so it appears, rather
abruptly, and in two minutes afterwards the cry of murder was
heard in the street. That the night was unusually dark, so that a
clearsighted man could scarcely see: and there is almost an equal
obscurity in the testimony relating to the transaction.—The cries of
murder—the alarm—the drawn weapons, and the suddenness of
the affray naturally threw the spectators into confusion, and defeat
that clearness and certainty in their evidence, which the law re-
quires previous to conviction. Hence it is that Mr. M'Dowali and
Mr. Sutcliffe differ materially in their testimony, and you cannot
believe them both. The Attorney-General, sensible of this, has
selected the witness on whom he intends to rely, supporting the
character and evidence of Mr. M'Dowali by new testimony, and
leaving his other witness to shift for himself—hence it is too, that
the testimony of Mr. Sutcliffe, given before the jury of inquest,
immediately after the transaction, differs with that given on this
trial—for his terror was so great that he could scarcely stand on his
feet—and I doubt not, gentleman, that his head was equally affect-
ed—we do not believe that either of the witnesses would state an
untruth, but we attribute to them, only the common infirmity of
not being able to see clearly in the dark, when both were under the
influence of terror, and one had received a wound. If it had been
in the day time they would doubtless have seen and testified the
origin of the affray, which arose as we are informed, from the vio-
lent and no doubt unintentional jostling of Mrs. Toohey by Mr.
Gadsden, or some person by design, for whom he was mistaken—
That there was an affray, in which there were other parties, than
the accused and the deceased, appears from the testimony of Sut-
cliffe. He heard the prisoners abused, called cowards and rascals;
and asked, do you fight in that way by " a little man" named Gor-
don, who therefore must have commenced the affray himself, or
been concerned in it, or at any rate a witness. Now, gentlemen, of
his being there, we.are entirely ignorant until this moment—but it
is fair to presume, that it was known to the prosecution. Where is
he ? If he could have convicted the accused, he would doubtless
have been brought here ! If he could have confirmed the testimony
of M'Dowali and Sutcliff, why not bring him ? And is it not a
fair inference that he could do neither ! Otherwise why withhold
or omit to bring forward any light that could possibly reveal this
mysterious transaction. So, too, with Mr. Cavenaugh, another wit-
ness, where is he ? Will you be satisfied with this partial elucidation
of the quarrel ? Four persons are alledged to have been present.
Two only appear before you. The state has lawful and physical
means to produce them all—two of them are not produced. You
have then only one half of the evidence; that half, contradictory—
and you are left almost wholly in the dark. You have a right to
hesitate and to doubt—you cannot avoid it—it is your duty.
There is another embarrassment m our defence, arising from the
rule of law, which requires us first, to prove all extenuating circum-
stances, and another, which prohibits a wife from being a witness
for her husband. She might be, you will be told, for her brother;
but their cases are so blended together and indeed identified, that
momentary objections would arise in her examination, and the
strong influence of sisterly affection might, perhaps, destroy the
benefit of her evidence. But, will you believe, therefore, that there
were no extenuating circumstances—that there was no quarrel—
no excitement—no injury, real or imaginary—that these brothers
designed to commit murder on Mr. Gadsden, whom they had not
seen ?—that they lay in wait for him, inhere they had no right to ex-
pect him^—and that one of them, not content with the bloody spec-
tacle, carried his wife to share its horrors, and baptize her unborn
babe in blood ?—No ! you are happily relieved from so dreadful a
conclusion, by the testimony of the prosecution itself.
It is proved that both Michael and Martin Toohey were in a
violent passion, and that one of them, after the blows were struck,
was anxious to pursue Mr. Gadsden; and you remember they both
left Galloway's a little while before, in good humour, without any
indication of malice. You have ample evidence that they were
much intoxicated. So much for their situation. With regard to
their actions, it appears that Michael Toohey(acting as we contend,
under the impression, that his wife had been struck, or violently jos-
tied by Mr. Gadsden) struck him with his fist—that his bayonet was
at his side, and that he made no use of it. Now, if he had used his
bayonet, the Attorney-General would have said—why use the
bayonet if he did not intend to kill ? We answer, why not use the
bayonet if he did intend to kill ? The affray commenced, therefore,,
with Michael Toohey, and he neither inflicted a mortal blow, nor
indeed any blow of violence. Martin coming up, seeing his bro-
ther in a quarrel, having his bayonet in his hand, struck the deceas-
ed. This we contend to have been done in sudden heat, and there-
fore not to amount to murder. After the melancholy transaction
you do not see the prisoners flying as if conscious of guilt ; but
Michael reels home, supported by his wife, and falls down drunk in
the passage way of his house where he remained sometime. Mar-
tin also goes home, where he is found by Mr. Turner, in a state of
beastly intoxication and insensibility. He is roused with great diffi-
culty—Mr. Turner puts on his clothes and informs him that he is
accused of murder. He ridicules the idea, and not even the horror
of the charge awakens his recollection of the occurrence. He
threatens Mr. Turner, if he should repeat the story. At length he
is dressed, and, following the advice of Turner, leaves his house with
his wife and brother Patrick. Turner, it appears, advised him to
Secret himself until the morning, when enquiry might be made into
the matter. He had got a little way, when he determined not to
leave town, as advised ; but went to his brother's to ask about the
the business. Here,, if he had been conscious of his guilt, he must
have known he would have been detected ; and here accordingly
121
he was found and taken—still denying his guilt however, and de-
claring up to the present time, his entire unconsciousness of the
transaction.
Now, gentlemen, are you not satisfied that the prisoners were so
intoxicated as to be ignorant of what they were doing. That the
tide of their hilarity had overflowed its banks and swept away their
reason. And will you visit the undesigned acts of unreflecting in-
dividuals, with the same penalties that you regard the mature and
consummated designs of full grown villainy ? . Yes—even with
greater penalties—if you regard the dictum of Sir Edward Coke—
<( who could behave on some occasions neither like a man of quali-
ty, nor a man of virtue," sanctioned, unreflectingly by Blaekstone.
Of which unadvised and unfounded opinion I will only observe, that
" Imperfect reports of cases and decisions are the bane of all science
that depends upon the precedents and examples of former times."
" Father, forgive them, for they know not what they do," was
the kind intercession of our Saviour for his enemies. The law,which
assumes to itself all perfection, and is certainly entitled to this, that
it never made a bigot nor a persecutor, regards with commiseration
and tenderness the acts of lunatics and idiots.. But aware, that
drunkenness afforded the same ground in substance for the appli-
cation of the rule, it contrives to exclude that offence, alledging
with some plausibility, that one crime is no excuse for another, and
that lunacy and idiotism are acts of God, whereas drunkenness is
not. Where shall we commence or terminate the applicability of
this mysterious phrase? So fully ami convinced of the universa-
lity of the divine presence—so visible is it in the smallest blade of
grass, and in the structure of majestic worlds—so audible in the
deep toned thunder and the linnet's note, that I have always,che-
rished with delight the impression, that God is every where. Nor
can I offer the family of the deceased any more cheering consola-
tion than this, that the Almighty, who suffers not a sparrow to fall
to the ground without his leave, has thought proper in his infinite
wisdom to afflict them with the calamity of death, and the ac-
cused with the greater calamity of having been instrumental in the
sad catastrophe.
Drunkenness stands 011 a different footing in Great Britain and
in this country. There, a statute exists against it, here, there is
none. And the prisoners on their arrival might regard that as in-^
nocent which was no longer forbidden them. In Ireland too, they
were denied the use of arms. We put them in their hands. These
are circumstances in their case, entitled possibly to some weight.
And it would be inexcusable to omit a solitary circumstance, which
may enlighten the cause of justice and serve humanity.
The English doctrine, even if it were correctly reported in Black-
stone, would not be law in this country„ nor have our courts so re-
garded it. The crime of homicide committed by a drunken man,
has been uniformly, I believe, regarded by juries as manslaughter.
It was so in the case of Dougherty, tried in Pennsylvania, (Smith's
trial, p. 88) with circumstances of greater atrocity by far than this
122
case, and hi opposition to the charge of the judge, who quotes
Blackstone and Coke, and illustrates the position by the remark,
that historians had always considered Alexander the murderer of
Clytus. It would have perhaps been advisable to refer to some
later period, than the time of the Macedonian madman $ and, to
define the sin of Alexander, was, for a judge, only to remember the
definition of manslaughter. In this court, Berg who killed a boy
on the fourth of July, in a drunken state; and Solin, who in a si mi-
lar situation, was found to have killed his partner, were also con-
victed of manslaughter. But. you will be warned of the evil effects
of such an example. That drunkenness will increase, that assassi-
nations will be frequent, and liquor a common excuse. That
there should be a statute against drunkenness, I readily admit, but.
such apprehensions are unreal. Our country is young and fresh
and virginal. It has not yet, 1 trust it never will attain that un-
happy maturity in crime, which characterizes the older world.
There is no need here of those manifold and bloody snares, with
which the Parliament of Great Britain has beset that country, to
entrap the dexterous practitioners of crime. Our lives do not re-
quire so much vigilance to preserve, nor admit of so much prodi-
gallty in wasting them. Our codes and decisions are christian and
humane—and if those of South-Carolina be more severe than
others, it is because our lawgivers in former times were unfortunate-
ly educated in England.
In Pennsylvania, the law requires malice to he proved. In
England, the law infrs it without proof , and it must be disproved.
Yet in England, the accused are presumed innocent, and no man is
required to prove a negative. Reconcile, if you can, these jarring
inconsistencies, and if you cannot, get rid of a position at war with
tiie humane principles of our nature.
It will be a forced construction of the circumstances in this case,
which shall induce you to believe any preconcert of mischief be-
tween -die accused. Their being together was accidental, it was
perfectly natural from the connection subsisting between them;
and their being armed was no more than the common usage of
their corps. Therefore you have no right from the weapon alone
to infer malice.
There was only one mortal blow given to the deceased, and his
dying declaration pointed to one individual, as having inflicted it ;
what then is the offence of Michael Toohey ? It cannot be man"
slaughter for he did not kill at all—much less can it be murder
which is killing with malice. lie committed only a trespass, and
even this without any preconcert now the law is laid down in
Foster, p. 3o3, that where two join to commit a trespass and one
commits murder—he only is answerable. And- in 1st H'ale, p. 442,
under the statute of stabbing, " he only that gave the stroke had
judgment." Such also was the judgment of this court under an
indictment at common law in the case of Matereau, who was one
of a gang of rioters by whom Chambers was killed—and who alone
\yas punished. It is not a bare presence, altogether accidental as
12$
in this case, that shall implicate one man in the crime of another;
but a common design and a mutual execution. And you cannot
believe that Michael Toohey had any design to commit homicide.
But if you convict Michael Toohey at all, you must convict him
of murder—because only one blow was given, and that not by him—
if then he be guilty it must be as accessary,and he can only be acces-
sary to a murder. Now, you can at most convict Martin of murder,
and cannot avoid seeing the wide distinction between the criminality
of the two. Whatever offence Martin has committed—Michael's has
been a lesser offence—the punishment therefore must be less; and
as you cannot convict him of manslaughter, you will acquit him
altogether.
Again, suppose Martin Toohey absent, Mr. Gadsden not to have
been wounded, and Michael to have struck him, as he did with his
fist—could Michael have been convicted of an assault with intent
to kill ? It will not be contended. He cannot consequently be con-
victed of murder—Now, on the other hand, suppose Michael to have
been absent, would it have altered the fate of Mr. Gadsden ?. I ap-
prehend not—how then can he be deemed an accessary ? seeing,
that neither present, did he procure, nor absent, could he have hin-
dered the death of Mr. Gadsden.
What is the offence of Martin Toohey ? Is there any evidence
of malice ? None, more than, from the circumstances, may be in-
ferred—and what are these? Why—that there was an affray, in
which his brother was concerned and his brother's wife—that blows
were passing—that lie came up to his brother's assistance, and
struck the deceased, as it is said with a bayonet—not sought for
by him, not sharpened (for if either was sharper than usual it was
Michael's although that was not uncommonly sharp) of which
wound Mr. Gadsden unfortunately died.
Now, my friend, the Attorney-General, has shewn me a passage
in 3d Chitty, inferring malice from the weapon used ; but even in
that authority, it is stated in the case of the Shephered, who
killed a boy with a stake which lay near him—that this circumstance
disproved malice. Men in anger and under sudden excitement,
take the first weapon they can lay their hands on, which very cir-
cumstance puts out of the question that deliberation and choice essen-
tial to murder. The use of the weapon then does not make it mur-
der in Martin Toohey. It was used in anger under the bewildering
influence of liquor and passion, and is at least as favourable a case
as the following. If you regard these, you can only find Martin
guilty of Manslaughter.
In the case ofBuckner—(Beville, p. 79.)—u Two men came to
" Buckner's lodgings, and when they got in, one of them took down
" a sword in the scabbard, which hung there, and drew it, and
" stood at the door to keep Buckner from going out, while the
" other, who was his creditor, might go and fetch a bailiff to arrest
him. Upon this there was some conversation between Buckner
" and his creditor, and Buckner took a dagger out of his pocket
124
" and stabbed him. He was tried at the Old Bailey, King's bench,
" 1695, and it was held to be manslaughter."'
Here there was only a conversation alledged between the prison-
er and the deceased, no provocation whatever, and, not, as in this
case, an affray between the deceased and some person else, and the
brother to whose assistance Martin Toohey is proved to have come
up.
" Williams, a Welchman, on St. David's day, having a leek in
" his hat, a certain person pointed to a Jack of Lent that hung up
" hard by, and said to him look at your countryman ; at which
" Williams was much enraged and took a hammer that lay on a
" stall hard by and flung at him, but it missed him and killed ano-
" ther—this was held to be manslaughter."
Give us, gentlemen, only the benefit of this decision, and allow
as much latitude to fraternal affection as to local or national feelings.
In that case the deceased had given no provocation, either by
actions or words. Yet because of the irritation on the mind of the
prisoner he was deemed guilty only of manslaughter. Here too
an innocent ulan suffered unintentionally, as in this case of Mr. Gad-
sden.
So again, (1st Hawk. P. C. 31 & 36)—" He who happens to kill
another in a contention for the wall is only guilty of manslaugh-
t{ ter." Now this is almost proved, it is inevitably inferred to have
been the case here. Not because the privilege of walking next the
wall is deemed by the law of any importance, but that (even though
men quarrel sometimes about trifles) yet the existence of this sud-
den quarrel disproves the charge of malice and therefore of murder.
In Brown's case, reported in 1st East 245.—It appeared, " that
" a quarrel arising between some soldiers and a number of keelmen
at Sandgate, a violent affray ensued, and one of the soldiers was
" very much beaten. The prisoner, a soldier, who had before driven
part of the mob down the street, with his sword in the scabbard,
il on his return seeing his comrade thus used, drew his sword, and
t( bid the mob stand clear, saying, that he would sweep the street;
" and on their pressing on him, he struck at them with the flat side,
" and as they fled pursued them. The other soldier in the mean
" time got away, and when the prisoner returned, he'asked whe-
" ther they had murdered his comrade; and being several times
" again assaulted by the mob, he brandished his sword and bid them
" keep off. At this time, the deceased, who from his dress might
t( be mistaken for a keelman, was going along about five yards
Ci from the prisoner; but before he passed, the prisoner went
*( up to him and struck him on the head with the sword, of which
" he presently died. This was holden manslaughter."
Now, gentlemen, compare Brown's case with that of the prison-
ers at the bar. In both cases there is an affray. Brown comes to
the assistance of a fellow soldier—Martin Toohey comes to the as-
sistance of his brother—a fellow-soldier—and his brother's wife.—
Brown believes his comrade to be in danger. Toohey believes his
brother and his wife in danger—Brown mistakes an innocent man
125
and kills him—this is in the day time, and he is sober. Toohey mis-
takes an innocent man and slays him—but he is intoxicated aud it
is in a dark night. Brown was deceived by the dress of the de-
ceased. Toohey could not perceive his dress at all. Which is the
stronger case?—why, unquestionably, ours—and what is the use of
recorded cases if they be not regarded as authority ?
A stronger ease, if possible, is that of Mary Adey, reported in
Leach, 189. The accused was a courtezan who put to death an
officer of justice, while he attempted to arrest one Farnello her
paramour, who made no resistance himself. Yet was it not deemed
murder, but the judges being divided she lay in gaol eighteen
months and escaped punishment. I will not stay to compare the
sacred ties of blood with the meretricious obligations of lewdness ;
but I ask only the same indulgence to the one which was accorded to
the other.
In the case of Tooley—2d Lord Raymond, 1296. It appeared,
that Bray, a constable, (but not in his own parish) arrested a girl as
disorderly without any warrant. That while he had her in custo-
dy, Tooley and others, who did not know the arrest to be illegal,
assaulted the constable with swords, and slew one Dent, who came
to his assistance, but had used no violence whatever. Seven judges
thought it manslaughter, it being a sudden action without any pre'
cedent malice. Five judges thought it murder, because the accused
was a stranger to the girl, and not a relation or friend. And
yet, in that case there was a knowing resistance of an of-
ticer of justice without a knowledge of his defective authority.—
And the judges would have been unanimous in deciding it man-
slaughter, if Tooley had been a relation. Now, gentlemen, here
is exactly the case, in a stronger degree j Martin Toohey is the
near relation of Michael, whom he came to assist, not against an
officer of justice, but against a stranger, whom at that time in the
confusion of darkness and drunkenness, he mistook for the assailant
of his brother and wife—and his was " a sudden action without any
precedent maliceGive us the same justice as was awarded in this
trial. We ask no more.
The general pririciple pervading these cases is, that the law ex-
cuses in some measure the interference in another's quarrel, by his
servant—his friend—and especially by his relation, acting under
sudden excitement, and the impression of an injury done or threat-
ened. It is but listening to the voice of nature, which pleads for
the preservation of the original elements of society. Ilence the
father, who ran three quarters of a mile, and then beat to death a
child who had beat his own, was not deemed guilty of murder.—
We are so fearfully made, that our observance of one rule is too
often evinced by the violation of another—and here parental affec-
tion ran counter to the peace of society. Sometimes, too, so little
can we controul events, that our actions are susceptible of a variety
pf motives, and sometimes they cannot be analyzed at all. But
whenever the motive can be ascertained, it determines the criminality
and in inferring a motive we should be charitable. Now, which of
R
126
you believes that if Michael Toohey had not been present, Martin
Would have slain Mr, Gadsden ? Or, that he would even have as-
sailed him. No, gentlemen, he would doubtless have passed him
in security—and why did he interfere, du you imagine ? Does not
the motive occur to you instantaneously? Was it not to assist
and to defend Michael and his wife ? And who were they ? His
brother and his brother's wife. But his brother was wrong
perhaps, and Mr. Gadsden innocent. Who, in a dark night,
in a state of inebriety could ascertain the conduct of the parties?
Who would stay to enquire before he interfered ? Why I think not
his brother. He erred, it is true, fatally and dreadfully erred—but
brotherly affection led him into it—and it was, in the words of the
judges in Toolev's case, " a sudden action without any precedent
malice." For since the melancholy occurrence, he has uniformly de-
elared that he had never seen Mr. Gadsden, and had no enmity
with any one. And whatever be his fate, this is a consolation
which never soothed the bosom of a murderer.
Out of the relations of society grow many exceptions to the ge-
neral rule in criminal cases. They are protected even in their
odious and unamiable features. Thus in the case of Sarah Hasell,
whose child, only ten years old, having spun some yarn badly, the
mother threw a four legged stool at the child, and struck her on
the temple, and she died—a special verdict was found, acquitting
her of malice, and consequently of murder. No doubt, because
it was regarded as an unintentional abuse of parental authority.
How much better if she had killed another in defence of her child,
and had to plead in her behalf the charities of nature.
I will not trouble you with further quotations, and if I allude to
the case of Snow, who in an affray, being a shoemaker, and having
a knife in his hand stabbed his antagonist; or to that of three Scotch
soldiers (1st East. 244.) who having arms by their sides drew them
in an affray—it will be only to show as these cases clearly do, that
the use of his bayonet by IVi artin Toohey the accused does not ren-
der his crime murder.
There is an undefined mystery about the circumstances of the af-
fray which leaves too much room for conjecture,and affords little of
that certainty which the law requires, to satisfy the consciences of
humane men. In doubtful cases, the character, of the accused
weighs much in the scale of justice. A charge can scarcely be true,
which is inconsistent with the long and uniform tenor of life, "we-
mo repente jit turpissimm." The good deeds of she past do not
sleep in oblivion, they rise to redeem the pseo lit. and to vindicate
the future. What a sweet enco uagement to virtue, the reflection,
that in every human0, pious, or benevolent act, we plant a senti-
nei for our future safety. Let it not be said, that not until a future
world does the Almighty reward innocence—seeing that even on
earth—when beset by cruel fortuner—when entrapped by hidden
snares—when assailed by storms, and all around is black and
threatening and deathful—even then in the mid-ocean of calami-
fy, the good actions of the past appear again like so many delightful
127
eminences, where the exiled and forsaken bird may fly for refuge
and repose in security. It is not in vain, then,that Michael Toohey,
was kind and dutiful to his parent, who yet subsists upon his boun-
ty—that he was industrious in his habits—quiet in his disposition—
honest in his dealings—orderly in his deportment—and in his in-
tercourse with his wife, his children, and his domestics, affection-
ate and tender. All these things have been proved, and they shall
all avail him. His character was thrown into the breach—we left it
there—the State assailedit—it is not injured—it cannot be. Few of
our citizens could pask with less injury such a fiery ordeal, especi-
ally when it is considered how fertile is resentment—how defence-
less misfortune. And yet you are to believe, that all these kind
affections were instantaneously destroyed, and the place where
they'flourished, converted into the den of sanguinary malice. Im-
possible! 1
For Martin Toohey, unhappily we are unable to raise such an
ample defeuee. He has been but two years in this country—and
character is the growth of time. In a humble occupation he has
only been noticed for his uncommon industry. He is a native of
Ireland, that afflicted land, doomed to shine and to suffer—the first
to achieve, and the last to enjoy;—invited here by his brother—the
misfortunes of his country accompanied him—poverty made him
an exile-pi imprudence makes him a criminal.
Gentlemen, 1 am aware, that in legal investigations, no feeling
should be allowed to intervene. Yet the picture of the deceased
weltering in his blood, and of his wretched family, is it not constant-
Jy before your eyes ? And is the situation of the accused wholly
without mourners, melancholy and innocent ? Their name, it is
true, is not like that of the deceased, identified with the liberties
of our country, nor conspicuous in the annals of our glorious revo-
iution. There is not- around them a deep and wide channel of af-
fection, pervading this whole city, bearing on its ample bosom the
tide of resentment, and echoing the murmurs of grief and despair.
But, is there no fear, that you will yield to this overwhelming tor-
rent, and allow it to sweep you unconsciously away ? I trust not, I
trust that you will not, in the loud and deep lamentations for the de-
ceased, overlook the sorrows of the wretched wives of the accused,
who, in accents too humble to be heard—from the depth of humi-
lity and affliction, implore you to save their husbands and their
brothers from death—their children from orphanage—and their
name and th^ir lives from infamy.
I have now, I believe, exhausted the few topics that have occur-
red to me in the defence of the accused. I know not how to ac-
quit myself of the great responsibility, which is attached to me. I
would not willingly omit an effort. I dread the imputation of ne-
gligence or error, in a case so momentous. And yet the errors of
counsel may be reviewed—those of juries and courts are final.
Aware of the odium which the counsel have incurred in this de-
fence, through excessive popular phrenzy, I here state, that
it there be'any narrow minded individual, who thinks ill of us for
128
the exercise of our professional duties, I would rather die in his
displeasure, than live in his esteem. I hope there are not many
such, not on my account, but their own. And numerous as they
may be, .let them know, that if the threshold of this court-house
was to be my grave, I would walk into it fearlessly in performance
of my duty.
You will act, I am sure, with the same conscientious regard to
the high obligation imposed upon you. With you rests the respon-
sibility of awarding justice. There is nothing in the plaudits of
an unreflecting crowd that can atone to you for a precipitate
or erroneous verdict. It is your duty to save the lives of your
fellow-creatures, if you can do so lawfully. You are criminal
if wrongfully you take them away. From time immemorial, there
has been interwoven in legal codes the humane maxim, which allows
the guilty to escape, rather than the innocent to suffer. And it is
only an extension of that benign principle, which regards the guil-
ty with compassion. I am in love with Justice, as she is painted in
poetry and fable, and as she is supposed to exist above. Firm,
dauntless and unbending, forever pursuing the right, and careless
of the expedient, she holds her balance in the heavens, and rules
the blissful abodes of eternity. But when J ustice came upon earth,
she was oppressed by its impurities—the atmosphere was too
cloudy for her vision—the passions were too strong for her equani-
mity—her knees trembled—her balance became unsteady-—and she
had nearly fallen a prey to anger and revenge. For it is the nature
of these to hide their own deformities under the mantle of Justice.
But the Almighty thus addressed his daughter, who was flying for
refuge to the mansions of heaven. Repair again upon the earth,
relax thy severity—mortals cannot endure thy frown—yield to the
soft influence of compassion, and take up thy abode with Mercy.
They met and kissed each other. Thus God maintained the em-
pi re of Justice, and man rejoiced in the triumph of Mercv.
The defence of the prisoners being closed, and it being late in
the day, the Attorney General stated, that being obliged to answer
so many Counsel, he must necessarily occupy much time, that it
would be impossible for him to conclude his argument until a very
late hour, that he felt himself much exhausted, and that it was
impossible for him to discharge his duty to the State, as he desir-
ed, in the course of that day ; he therefore, hoped, that the
Court would indulge him until the next morning—which being
granted, the Court adjourned.
129
Saturday Morning, January 30, 1819—10 o'clock.
The Court met pursuant to adjournment, when
ROBERT Y. HAYNE, ESQ. Attorney-General,
Rose in behalf of the State in reply.
MAY IT PLEASE YOUR HONOR,
Gentlemen of the Jury.
THE Counsel for the prisoners at the bar have deplored in the
most pathetic language, the unfortunate situation in which their
clients are placed. They have told you, that popular prejudice has
been so "Strongly excited, that, it has dared even to assail thecoun-
sel for their laudable exertions on this occcasion : The gentleman
who last spoke, among the eloquent and touching appeals he has
made to your feelings, has described his clients, as exposed in a
frail bark to the fury of a troubled ocean—tossed by the winds
and the \vaves, without a compass—and on the edge of a whirlpool,
from which nothing can save them butyour friendly aid. It is, gentle-
men, too true; and I have no doubt, you feel every disposition to save
them from destruction. But, it must not be forgotten, that these unhap-
py men have voluntarily placed themselves in this perilous situation ;
and in so doing, they have disregarded their most solemn obliga-
tions to society—they have violated the laws of man, and have
turned a deaf ear even to the voice of God. You will yet save
them gentlemen, if you can do so consistently with your duty to
yourselves, to society and to heaven—if you cannot save them with-
out the violation of all these solemn obligations, then they must
meet their fate. Let me intreat you gentlemen, not to yield an
easy credence to the suggestion, that the prisoners are the victims
of popular prejudice. This is the sacred temple of justice, into
which nothing impure can ever enter. Public opinion must not be
mistaken for popular prejudice—the first, acts on known facts, and is
generally built on a substantial foundation—the latter rests on con-
jecture only, confounds truth with falsehood, virtue with vice, and
finally, crushes all that is excellent or commendable. In the case
now before you, a worthy citizen has been killed in the face of the
community—every fact that has appeared in evidence, has been
for several weeks before the public—it has been all along manifest
to them, as it must now be to you, that the act could admit of no
excuse—can it be expected therefore, that public opinion would be
with the prisoners ? or, is it not natural that the general sentiment
should have been against them ?—The prisoners, lam sure, ho we-
ver, have had a most fair and impartial trial; and I am well satisfied
that you gentlemen of the jury, when you took your seats in
130
that box, discarded all impressions unfavorable to them, and
left your minds open to conviction ; firmly resolving to be gov-
erned by the law and the evidence alone. The compassion
which the counsel have endeavoured to enlist in behalf of the pri-
soners, I am willing you should indulge; but if you suppose, that
the indulgence of sentiments of pitv is necessary to enable you to
do them justice, you deceive yourselves greatly. The sympathies
of the community are always with the accused, at least on their trial}
and in every contest between the state and a citizen the former is
weak and the latter strong. I know that among our earliest asso-
ciations, is the idea of strength in the government, and weakness
in tlm individual. In Europe, where the government is encircled
by all " the pomp and circumstance" of power, this may be true ;
but in America, where the government is in the hands of the peo-
pie—where the state, " palpable neither to feeling nor to sight," is
like the air around us, giving life and vigour; we know not how
exactly the reverse is the truth—whether we view the subject philo-
SophicaKv or practically, we must arrive at the conclusion, that no
man can be convicted of a crime in this country, who is not beyond
all question guilty; while hundreds escape, who are worthy of
punishment, indulge me for a few moments, wffiile I establish this
position:— It is a principle deeply rooted in human nature, to be
more affected by individual distress, than by general calamity. The
feeling and inimitable Sterne, when he desired to impress on the
mind the horrors of slavery, " takes a single captive, and having
first shut him up in a dungeon," calls upon us " to look thiouarh the
twilieht of his grated door, to take his pictureand I venture to
afFirm, that when in " our mind's eye," we behold that captive with
his crust of bread, and hear the bitter sigli burst from his anxious
bosom, we feel ourselves more disposed to pity, than from any
general survey which could have been taken of the subject- I fear
therefore, gentlemen, that at this moment, you feel more for the
prisoners, than you do for the community—1 know it is quite natural
for you to do so—you behold them as men in misfortune, struggling
with difficulties ; and I am not without my fears, that with one of the
counsel, you regard the state u as coldly seeking for the blood of the
prisoners." But, however this may be, of one thing I am certain,
that in other respects the prisoners iiave greatly the advantage of
the state—they are surrounded by numerous and active friends, who
leave nothing undone to effect their acquittal—witnesses come in
crowds to testify in their favor, and every one who can say a word
in their behalf urge their way hhher, at least to gratify their kind
■feelings. Very different is the situation of the State. The
state has no friend—with it we can indulge no sympathies.-r-
lkuow from mv experience in this very case, and can truly say,
that in a criminal prosecution the state is friendless—all who
know the facts of the case avoid the court, and testimony is col-
lected and brought forward with the greatest difficult}'. In another
respect, the contest is still more unequal. You see the prisoners
defended by three gentlemen, all respectable for their virtues, of
131
approved talents, and of no ordinary eloquence. But where are
the counsel for the state ? I stand alone—unaided—feeble and ex-
bausted by the length of this trial; and in every way unequal to
the task. To rny friends all the fields of eloquence are open, they
can cull their choicest flowers and strew them in your way. Theirs
is the office, and happily they possess the power to touch the master
springs of human feeling—they well know how to lead the hearts of
all men captive—very different is my lot. If I possessed the
power, my duty would not demand, nor perhaps permit me to follow
the brilliant course of my friends. My situation, gentlemen, is ap-
palling ; mo4 sensibly do I at this moment feel the weight of res-
ponsibility which is thrown upon me—my duty is indeed a painful
one, but it must be performed. I am under the deepest conviction,
that the welfare of this community is in some measure at stake, and
under that solemn impression, I cannot allow rny feelings to influ-
ence my conduct.
Gentlemen, I shall bring the circumstances of this case fairly and
fully to your view. If, on the evidence adduced, and conformably
with the principles of law, you can acquit, the prisoners do so—but
etnie remind you, that no false sentiments of compassion must in-,
fluence you on this occasion—it has been well said that " pity to the
guilty is cruelty to the state."
The first position I shall establish is, that the late Mr. James W.
Gadsden, was killed by the prisoners at the bar, and I will then pro-
ceed to shew the nature of the offence which they have committed.
It is a melancholy fact, not disputed by the counsel, that the un-
fortunate deceased, about 7 o'clock on the night of the 21st of De-
cember last, was suddenly killed near the corner of Meeting and
Market-streets; and\the testimony is so conclusive to shew that
he was killed by the prisoners, that I did hope the fact would have
been at once admitted. The gentleman who stated the defence, seem-
ed to yield the point, but in the subsequent arguments, the fact ap-
pears to be denied ; or at least it is required to be proved—I will
now give you the proof. You will recollect that Michael Toohey,
the elder of the prisoners, had left his wife at the house of Mr.
Hyams, which is situated at the south west corner of Market and
Meeting-streets—the house you will remember gentlemen, is di-
rectly on both streets ; the gateway is at the south, and 30 feet from
the corner of Market-street. It was the habit of the prisoner t»
leave his wife there, when he attended the meetings of the Irish
Volunteers, of which he was a member; and it is proved to be his
habit also, to call for his wife by a tap at the window. Mrs. Too-
hey had sent a servant, says Mr. Hyams, to call her husband, and
a little before 9 o'clock, the signal tap is heard at the window; Mrs.
Toohey immediately went out—their way home lay round the cor*
ner, and through Market and King-streets. That way it is very
certain they went; and it is very certain also, that the other pri-
soner, Martin Toohey, was with them, for he was found with them a
very few minutes afterwards—scarcely had sufficient time elapsed for
the parties to get 15 or 20 yards roundjthe corner, when the cry of
132
murder was heard by Mrs. Hyams, and then by her family, in Mar-
ket-street, and exactly in the direction to which the parties had
gone. Both Mr. Hyams, and Mr. Moses, who was at his house,
agree, that this cry was heard in one or two minutes after Mrs. Too-
hey went out. These gentlemen ran out immediately towards the
place from whence the cry proceeded—Mr. Moses was the first ;
and when he had got about six yards round the corner, he met the
deceased, who was staggering towards him, and who exclaimed,
" murder, I am dead !" and pointing towards some persons on
the same side of the street nearer King-street, said " he has assaulted
me." Mr. Gadsden was then surrendered into the arms of Mr.
Hyams, and Mr. Moses ran on towards the persons to whom Mr.
Gadsden had pointed, and from whom he was evidently retreating.
There was not a human being between the spot, where Moses received
the deceased, and that where the group stood; and this distance
could not have been more than ten or fifteen yards. Moses came
up, and there saw the prisoners at the bar, Mrs. Toohey, and Mr.
Daniel M'Dowall—these comprised the whole party. Now it is
obvious that the deceased was killed by some one of the party, or
by some one in their sight. Let us next advert to the situation in
which the parties were found by Mr. Moses—Mr. M4 Do wall was
standing in front, off of the pavement—Martin Toohey was nearest
the deceased—Michael was close by his side, in a great rage, ex-
claiming the "rascal—the God damn'd rascal," and endeavouring
to break away from his wife (who had her arms around his neck)
and to go towards the deceased. If the evidence stopped here it
Would be sufficient to establiffi the guilt of the prisoners, or at least
of one of them. But the testimony of Mr. M'Dowall does not al-
low a shadow of doubt to rest on the transaction—he tells ydn
that he was a member of the Irish Volunteers, and met them on
that evening at Galloways, (which is situated at the opposite corner
©f the street)—that having come down stairs without his hat, while
standing at the street door he heard the cry of murder, he ran over
immediately and saw Michael Toohey engaged with a gentleman
whom the witness did not then know—that the prisoner had the
gentleman by the collar, who was making no resistance, but en-
deavouring to get away—Martin Toohey was then standing near
his brother. The witness tells you he went up to Michael and en-
deavoured to persuade him to go home, when Martin Toohey came
up to the witness and struck him a severe blow in the stomach; and
as it afterwards proved, inflicted a severe wound with a bayonet—-
tho' the witness was not at the time sensible of the wound. He tells
you that Mr. Gadsden had at that time got away from Michael Too-
hey, and had retreated a few steps, when he saw both of the pri-
sonersfall upon him—he sa w them both strike him, and that Martin
had at the time a drawn bayonet in his hand. He did not it is true
see the bayonet enter the body of the deceased, but, the witness
was himself stabbed by Martin Toohey, and instantly afterwards
he flew on the deceased, and with the same hand, and his bayonet
still drawn, was seen to strike him.
m
The witness saw Michael Toohey at the same time strike the d«-
ceased a blow over the left eye ; the deceased again escaped from
them, and retreated toward the corner of Meeting-street, and Mar-
tin Toohey followed with the bayonet in his hand ; he soon re-
turned, and then Moses came up. The deceased when met by
Mr. Moses, had received two bayonet wounds, one in the abdomen,
and one in the back; the first necessarily mortal, (say the surge-
ons) and the second though not necessarily mortal, yet probably so.
Mr. Hyams on receiving Mr. Gadsden in his arms, immediately
perceived the wound over the eye ; and when Mr. M'Dowall saw
the body in the house, he recognised at once the wound over the eye,
which he had seen inflicted by Michael Toohey, which, with the cir-
cumstance of the general appearance, as well as dress being the
same, connected with the other circumstances of the case, can
leave no doubt, that the person whom the Toohey's assaulted, was
Mr. Gadsden. Indeed after he escaped from the sight of Mr. M'-
Dowall, the deceased could not have gone five steps, before he was
received into the arms of Mr. Moses. You will recollect, gentle-
men, the nature of the wounds. They were smaller than bayonet
Wounds in general, (says Dr. VVhitridge, a gentleman who has serv-
ed in the army, and who is familiar with such wounds.) You have
seen the bayonets of the prisoners, they are unusually small and sharp,
precisely such instruments, says Dr. Whitridge, as would have in-
flicted such wounds. The counsel have argued, that Mr. M'Dowall
must be mistaken in his testimony, because Mr. Sutcliffe differs
from him in some particulars. I admit there is a difference be-
tween these witnesses, in some unimportant particulars. But with re-
gard to Mr. M'Dowall, I would say that a more respectable or
consistent witness, I have never heard examined in a court of jus-
tice. Every word that fell from his lips, carried with it the force
of truth. You will recollect, that I called witnesses to testify as to
the character of this gentleman, and I had many more in reserve, had
not the counsel precluded me from calling them, by their voluntary
admission of his excellent character. You must not suppose, gen-
tlemen, that I deemed it necessary to support the character of this
most respectable young man. Wherever he is known, he is be-
loved and respected, but you will recollect the attack made upon
him. You cannot have forgotten the mysterious questions put to
the two first witnesses,nor their still more mysterious answers. Mr.
M'Dowall, it was said, asked one of them " if he had seen all"
—he went away suddenly-—he came back to the jury of inquest the
very last—" be had changed his clothes," and last, though not
least, he never told of his wound. The tendency of this testimony,
most clearly was, to show that M'Dowall himself had given the
wounds. But how wonderful is the force of truth ! It came out that
Mr. M'Dowall, though in uniform, was unarmed, and he had shewn
his wound to Galloway before he left the ground. The attack on
Mr. M'Dowall was then abandoned ; an attack, which I must con-
fess, chilled my blood, and almost stopped its current, and he is
now admitted to be spotless. Let us hear n© more then of any in*
S
134
consistency between M'Dowall and Sutcliffe. 'The truth is, that
Stitcliffe, is also a very respectable witness—but he is obviously mis-
taken in supposing he came up before M'Dowall. There is no
doubt that he came up after M'Dowall; it is clear also, (and indeed
he tells you so) that he was very much agitated at the dreadful scene
before him. fife has, therefore, very naturally confounded the
order of events j but facts he has not, and could not have forgotten^
He says he saw the prisoners strike the deceased—that there could
be no deception, nor can he be mistaken when he says he saw Michael
Toohey after striking the deceased, put something under his coat,
as if returning a bayonet to its sheath. He described the gesture
and motion of the prisoner, and said he could not have been but-
toning up his coat. It is true, this witness tells you, that there
was a little man (Gordon) between the prisoners and the deceased
when he came, and that he was abusing the prisoners," as cowards
for fighting in that way." This is partly true, and partly an obvi-
ous and natural error. Tire witness did see Gordon no doubt,
and heard him so abuse the prisoners—but he has mistaken the
time—Gordon certainly came up after Gadsden had been carried
into the house—for you find him abusing the prisoners for their
cowardice in fighting in that way j obviously alluding to their
having stabbed the deceased with bayonets. M'Dowall tells yon
neither Gordon nor any other person was present when he came upr
but the prisoners and the deceased; and Moses after receiving the
deceased, found no other persons there but M'Dowall and Sutcliffe.
The counsel very adroitly endeavour to persuade you, that Gor-
don may have committed the murder himself. But where is the
proof? Who saw him strike the deceased ? He was not in uniform—.
he was not armed—he had no quarrel with any one, or at least
with none but the prisoners; and them he upbraided for their con-
duct. But the gentleman who last spoke, tells you that Gordon
was in court—that he answered to his name, and his not being call-
ed as a witness for the State, authorises the presumption, that his
testimony was against the State. It is true, gentlemen, Gordon
was here, and did answer to his name—nay, I saw and conversed
with him—but I found as the whole testimony clearly proves that
he came up after the affray, and, therefore, knew nothing of the
transaction, and could not be a witness. I assure the gentleman,
however, that if I had discovered any testimony, which could have
proved the innocence of the prisoners, I would have felt myself
morally bound to furnish them with it. I do not stand here to
condemn the innocent—but the guilty. But why did the gentle-
men not produce Gordon—if they intended to rely on him, they
were bound to produce him—he was here, and they could have pro-
duced him. They did not I presume for the very same reason that I
did not, because he came up after the transaction, and knew nothing
about it. I have now, I trust, most clearly established the propo-
sjtion, that the deceased was killed by the prisoners. I proceed,
therefore, to enquire what ofjrenee'have they committed. The first
position I lay down is, that where a man is killed by-another, such
135
killing is in law deemed to be murder, unless the contrary be clearly
proved. And this principle you will find laid down in 3d Chilly's
Cr. Law, p. 730, " that every homicide is prima facie murder, and
" will be considered as such, until justified or excused, and, there-
" fore, when this fact is once established, it rests on the defen-
ee dant to make out that he is justified, excused, or his guilt re-
t( duced to manslaughter, by some adequate provocation ; for all
" killing is taken to be both felonious and malicious, until the con-
" trary is shewn in evidence."
So likewise Foster in his crown law, p. 255, lays it down, " that
" in every charge of murder, the fact of hilling being first proved
<e all the circumstances of accident, necessity, or infirmity, are to
t( be satisfactorily proved by the prisoner, unless they arise out of
li the evidence produced against him ; for the law presumeth the
" fact to have been founded in malice, until the contrary appear-
" eth. And very right it is, that the law should so presume. The
" defendant in this instance standeth upon just the same footing
" that every other defendant doth; the matters tending to justify,
(t excuse, or alleviate must appear in evidence before he can avail
" himself of them."
I next proceed to enquire into the law, in relation to principals
and accessaries—I shall prove presently, that both of the prisoners
actually struck the deceased with a bayonet, though Martin gave
the mortal blow, but before I apply the facts to the law, I will
shew what the law is. In murder, all who are present aiding and
abetting, are principals—he who gave the mortal blow in the first
degree, and the others in the second degree—but the legal guilt as
well as the punishment, is the same*—to constitue a principal in
the second degree, he must.
1st. Be present,—-and such presence may be actual or construe*
tive. Chitty in his Criminal Law, p. 256, says that this " pre-
" sence need not be an actual standing within sight or hearing of
<£ the fact! but an active co-operation in the crime at the time of
" its commission, as where one stands to keep watch at a convenient
" distance, while another commits a felony. So, if several persons
u come to a house with intent to commit an affray, and one be
u killed, while the rest are engaged in riotous and illegal proceed-
" ings, though they are dispersed indifferent rooms, all will be
" principals in the murder."
2d. He must be aiding and abetting and with a felonious intent.
On this point, I will dwell more minutely, because great stress has
been laid on it by the counsel, and because I readily acknowledge,
that it is by far the strongest ground taken in the defence. I lay
down the following rules.
1. If a man merely stands by, and takes no part either to sepa-
rate or assist the combatants, he is not an aider and abetter, though
he is guilty of a misdemeanor, for not commanding the peace*
* 1st Chitty's Grim. Law, 256, 259,260.
136
2. But should he do any act to assist or encourage the assaulter,
or to induce him to calculate on his aid, he is guilty—for such en-
couragement may embolden him to make the attack.
3. If by his acts, he induces the person assaulted, to look upon
him as one of the party of the assailants, he is equally guilty—be-
cause such conduct, impresses the person assailed with fear, and by
discouraging him from making a manly defence, may lead directly
to his destruction.
4 Wherever parties are thus aiding and abetting, every blow is in
construction of law, given by each of them, and they are all equal-
ly guilty.
" If A comes and kills a man, and B runs with an intent to be
" assisting to him, if there should be occasion, though defacto he
" doth nothing, yet he is principal being present, as well as A."—
Again—-i( A comes in company with B to beat C, and B beats C
" that he die, A is principal; but then, according to those elder
" times, the indictment must not be only, that he was present,
" aiding and assisting ; for that, as the law was then taken, makes
** him only accessary, but the indictment must shew the special
matter, that they came to that intent; but now that course is
li altered, and the indictment only runs, that A was present, aid-
" ing and assisting; and that is sufficient to make him principal
1st Hale, I*. C. p. 440.
u Antiently, he that struck the stroke whereof the party died,
" was only the principal, and those that were present, aiding and
" assisting, were but in the nature of accessaries, and should not
V be put upon their trial, until he that gave the stroke was attaint
by outlawry or judgment. But this day and long since, the
" law hath been taken otherwise, and namely, that all that are
11 present, aiding and assisting, are equally principal with him
that gave the stroke whereof the party died—4 II. f. 18, a per
il omnes,. jusTiciARios utrinsque baisci, for though one gave the
u •troke, yet in interpretation of law, it is the stroke of every per-
" son that was present, aiding and assisting ; and though they are
" called principals in the second degree, yet they are principals, and
(i the law wa saltered herein, in tempore—H. 4—-Plow.Com. p.lQO^
u and therefore,, if there be an indictment of murder or man-
i( slaughter against A felonice, et peramit B, whereof he died,
<< and that C and, I) were present, abetting, aiding and assisting
" to A, adfelcmiani et murdrum^ Sfc.modo et forma prcedicla fa-
li ciend, and A appears not, but B and C appear ; they shall be
" arraigned aud receive their judgment , if convict, though A
^ neither appears, nor be outlawed—1st Hale, p. 437.
" If A be indicted as having ghten the mortal stroke, and B
" and Cas present/ aiding and assisting, and upon the evidence it
" doth appear, that B gave the stroke, and A and C were only
*e aiding and assisting, it maintains the indictment, and judgment
" shall be given against them all; for it is only a circumstantial va-
" rience, for in law, it was the stroke of all that were present, aid-
" ing and abetting" Id—p. 438.—And in Foster 351* the same
efctrine is laid down.
337
Sl If a fact, amounting to murder, should be committed in prose-
" cution of some unlawful purpose though it were but a hare tres-
" pass, to which A had consented, and he had gone in order to
" give assistance, if need were, for carrying it into execution; this
" would have amounted to murder in him and every person pre-
" sent and joining with him. The law would be just the same
" though the party slain had been an utter stranger and had
" taken no part on either side, but had come with a friendly inten-
" tion towards both, and to accommodate matters between them."
" It is true, here might be no special malice against the party
" slain, nor deliberate intention to huit/tm; but if the fact was
" committed in prosecution of the original purpose, which was un-
" lawful, the whole party will be involved in the guiii of him who
gave the blow. For, in combinations of this kind, the mortal
" Stroke, though given by one of the party, is considered in the
" eye of the law, and of sound reason too, as given by every indi-
" vidual present and abetting. The person actually giving the
" stroke is no more than the hand or instrument by which the others
" strike.
" And therefore where the indictment chargeth, that A gave the
" mortal stroke, and that B and C were present aiding and abetting,
" if it cometh out in evidence, that B was the person who gave the
" stroke, and that A and C were present aiding and abetting, they
" may be ail found guilty of murder or manslaughter at common
" law as circumstances may vary the case. The identity of the
" person supposed to have given the stroke is but a circumstance,
" and in this case, a very immaterial one ; the stroke of one is in
" consideration of law the stroke of all."
And Chitty, p. 287, speaking of the ancient doctrine respecting
principals, in the first and second degree, which was, that the for-
mer, the one who actually gave the mortal stroke, must first be
convicted, outlawed, or attainted before the latter, who was called
an accessary at the fact could be put on his trial, observes—" this
" distinction has been long since exploded, and now the stroke is
" constructively given by all who consent, and who are present at its
infliction." And in the first volume of the same author, page 256,
he says—" this presence need not be an actual standing within
" sight or hearing of the fact; but an active co-operation in the
" crime at the time of its commission, as where one stands to keep
" watch at a convenient distance, while another commits a felony.
" So, if several persons come to a house with intent to commit an"
affray, and one be killed while the rest are engaged in riotous and
" illegal proceedings though they are dispersed in different rooms,
" all will be principals in the murder."
The counsel have laboured to establish some distinctions, under
which they endeavored to bring the present case. All their ar-
gumenis may be reduced to this single proposition, " that to make
all the parties guilty of murder, they must" come together"—
there mtlst have been " a previous concert," and murder must be
138
the mutual object of all." I will answer each branch of this
broad proposition separately:
1. The parties must " come together"—-and here I will prove
that acting together is sufficient.
2. There must be "previous concert"—this I will shew to be un-
necessary, provided the circumstances of the transaction, are such
as in law constitutes murder, and not manslaughter—as where, for
instance, on a sudden affray, deadly weapons are used.
3. There must be a common felonious intent. The rule on this
point will be found to be this, the felony must arise from, or spring
out of the common object, and must not be merely collateral to it j
and if4he object be unlawf ul, all are guilty of murder if death ensue.
Several come to commit a trespass j in the course of the trespass
one who opposed them is killed—all are guilty of murder, because
this arose out of the common object, to wit, the trespass. But if in
the commission of that trespass, one of the parties turns aside apd
commits a theft, he only is guilty, as in the case before us. The
prisoners assault Mr. Gadsden, in that assault he was killed, both
are guilty; but, if on M'Dowall's coming up to part them, Martin
Tooliey turned aside and struck him without the consent of the
other, had M'Dowall been killed, Martin only -would have been
guilty of murder ; but if they had both struck M'Dowall, both would
have been guilty.
In elucidation of these points I will read a few authorities,—the
first is a case mentiond in 1st Hale's P. C. p. 443, where he says,—
" It must be a killing in pursuit of that unlawful act, that they were
" all engaged in, as in the case of Lord Dacre, (who with divers
" others came to steal deer in the park of one Pelham, Rayden
" one of the company killed the keeper in the park, the Lord Da-
" ere and the rest of the company being in other parts of the park,
" it was ruled it was murder in them all and they died for it." 1 Hale
P.C. 439.)—Theyjall came with intent to steal deer, and consequent-
" ly the law presumes they all came with intent to oppose all that
" that should hinder them in that design and consequently when
" one killed the keeper, it is presumed to be the act of all, because
" pursuant to that intent, but suppose that A. B and C and divers
" others come together to commit a riot, as to steal deer, or pull
" down enclosures, and in their march upon the design A meet
" with D or some other with whom he had had a former quarrel, or
" that by reason of some collateral provocation given by D to A.
" A kills him without any abetting by any of the rest of the com-
" pany, this doth not make all the party of A. though present, to
" 'be therefore aiding and abetting, and consequently principals in
" this murder or manslaughter, which was accidental and not within
" the compass of their original intention.
" But if when they had .come to steal the deer, or throw down
" the enclosure, any had opposed them in it, either by words or
" actual resistance, aud A had killed him, it had been murder in all
" the rest of the company that came with the intent to do that un-
" lawful act, though there were no express intention to kill any
139
" person in the first enterprize, because the law presumes they
<( came to make good their design against all opposition."
Another high authority (1st East P. C. 257)—" In all such in-
" Stances whether the breach of the peace were sudden or preme-
" ditated, not only officers but even private persons may interfere
" to suppress the riot, giving notice of such their intention; and
" much more may they defend themselves; and if in so doing, they
e< kill any of the rioters, if they could not otherwise accomplish.
" their purpose, it will be justifiable. And the killing of any per-
" son interfering by any of the rioters, would be murder in all
" who took part in the factor abetted thereto.
" Several persons were engaged in a smuggling transaction, und
" upon an attempt to oppose their design, one of the smugglers
u fired a gun and killed one of the accomplices. It was agreed by
" the court, that if the gun was discharged at the kings officers, in
" the prosecution of the original design, which was a fact to be
" found by the jury, it would be murder in them all, although one
" of the accomplices happened to be killed—but if done intenti-
(( onally and with deliberation against the accomplice, from anger
tl or some precedent malice in the party firing, it would be murder
in him only. In order therefore, to affect the particular by the
" general purpose in view at the time the death happened, the
" killing must be in pursuance of such unlawful purpose and not
" collateral to it.*
The counsel have here introduced the statute of stabbing, and
have said, that the statute was only declaratory of the common
law, and yet if several persons are indicted under it, he only who
gave the mortal blow can be convicted—1st East. 247. This is all
very true, but when we look at the statute, and find that it's provi-
sions extend only to the person who actually gave the mortal blow j
the words are " such person"—and the decision quoted by my
friends, are made on an indictment under the statute, and arise out of
the words of the statute. This is not an indictment under the sta-
tute, but at common law.f
I have now most clearly proved, that the deceased was killed by
the prisoners, and that whatever may be the nature of the offence,
they are both equally guilty. I proceed next to the important ei>
quiry, what is the offence they have committed ? I have shewn that
all homicide is murder, unless the contrary be proved. It is for
the prisoners therefore to excuse the act, or reduce it to manslagh-
ter. Three grounds have been taken in defence of the prisoner^
as affording an excuse for their act.
1. That it is excusable homicide, at least in Michael Toohey.
, * In support of the points laid down, the Attorney-General quoted further,
Foster, p. 350, 352—1st Hale, p. 441 442,443—1st Hawkins, p. 123 -2d Haw-
kins, p. 441, 442, 443—1st East, P. C- p. 258, 259—and Tomlin's Dig. Criin.
Law, p. 78, 79.
t This position was established by an examination of the statute, and the de-
eisions made in relation to it.
140
2. That at most it can be but manslaughter.
3. That the prisoners were drunk, and are therefore excused. I
will examine each of the excuses, and prove, I think, beyond all
question—they cannot avail the prisoners, and if so, they must be
guilty of murder.
First Point.—Excusable homicide—this must either be "per
infortunium," or " se defendendo,"
Let us test this position by a reference to 4, Bl. Com. p. 182,
" Homicide per infortunium, or misadventure, is where a man
<e doing a lawful act, without any intention of hurt, unfortunately
c< kills another : as where a man is at work with a hatchet, and the
" head thereof flies off and kills a stander-by; or where a person
tf< qualified to keep a gun, is shooting at a mark and undesignedly
" kills a man; for the act is lawful, and the effect is merely acci-
" dental." And in, page 184, on the subject of self-defence,
he says—" But the self-defence which we are now speaking
" of, is that, whereby a man may protect himself from an as-
(i sault; or the like, in the course of a sudden broil or quarrel, by
" killing him who assaults him." Pursuing the subject, the author
observes:—" This right of natural defence does not imply a right
'<■ of attacking : for instead of attacking one another for inju-
" ries past or impending, men need only have recourse to the pro-
" per tribunals of justice. They cannot, therefore, legally exer-
" cise this right of preventive defence, but in sudden and violent
" cases ; when certain and immediate suffering would be the conse-
" quence of waiting for the assistance of the law. Wherefore to
" excuse homicide by the plea of self-defence, it must appear, that
" the slayer had no other possible (or at least probable) means of
Ci escaping from his assailant." And in the same page—" The
" law requires, that the person, who kills another in his own de-
" fence, should have retreated as far as he conveniently or safely
" can to avoid the violence of the assault, before he turns upon his
" assailant$ and that, not fictitiously, in order to watch his opportu-
" nity, but from a real tenderness of shedding his brother's blood.^
This is the doctrine of misadventure and self-defence.
It is not pretended to be the first, and as to its being " homicide
in self-defence" the conjectures of the counsel as to what may hate
occurred is the only foundation on which the argument rests. The
evidence is, that no attack was made by the deceased, but that, on the
contrary he was assaulted by the prisoners and was killed when re-
treating, making no resistance and calling for help, lie never
struck either of the prisoners a single blotv. It cannot be necessary
to add a word on this point.
Second Point.—Was this offence manslaughter ?—This is the
point on which the defence now seems to turn—it is the last hope-
of the prisoners. Manslaughter, gentlemen, is defined to be " the
unlawful killing of another without malice either express or implied"
and in general is by " sudden heat and passion,"—4 Bl. 190.
Malice, as 1 before very fullv explained to you, does not consist
in malevolence towards an individual, but it is "a general evil in--
141
tent," and is to be inferred from any circumstances, " which show
the heart to be regardless of social duty and fatally bent on mischief.'7
(Foster 256 & 7.—4th Bl. 198.—1st Haw. 121.) The gentleman
who first spoke has told you that murder cannot be committed with-
out some powerful motive, and he has traced the operation of the
various causes which usually produce it, such as, ambition, avarice,
jealousy, &c. ; and he has then called upon you to acquit the prison-
ers because they have killed Mr. Gadsden without a cause. That is
their condemnation, gentlemen ; and the fact proves most clearly,
a total disregard of social duty. They have not been tender of a
brother's blood ; but, without any provocation, or, according even to
the conjectures of the gentlemen, a very slight one, (they suppose a
struggle for the wall) they have executed a deadly revenge in the
niost savage manner. Now, the life of a rational creature is of so
much account, that the laws of God and man denounce the severest
punishments against those who take it away without a justifiable
cause. In the sacred volume we find, among the commandments
given to us by our Creator, "thou shalt not kill." And we are
told "whoso sheddeth.man's blood by man shall his blood be shed."
And in language yet stronger it is said, " Moreover ye shall take no
satisfaction for the life of a murderer who is guilty of death, for the
land cannot be cleansed of the blood that is shed therein but by the
blood of him that shed it." And in conformity with these com-
mands, and indeed with the principles and feelings common to hu-
man nature, has the murderer in all countries and all in ages been
put to death.
But the counsel for the prisoners tell us that this killing was in a
sudden affray and proceeded only from heat of passion,, and there-
fore it is manslaughter. Admitting this unfortunate transaction to
have occurred suddenly, yet to reduce the offence to manslaughter,
the wounds must have been inflicted in heat of passion—on some
grievous provocation—no advantage taken by the prisoners—and no
circumstances of cruelty or barbarity have attended it. Unless all
these circumstances of palliation concur, it is murder, and on each
of them I will dwell somewhat minutely.
1st. Killing in a sudden affray is not regarded as proceeding from
heat of passion, unless the fury of the mind is so great as to deprive
the party of all self command, for the law in reducing the offence to
manslaughter is indulgent to the frailty and not to the corruption of
our nature. (1st Haw. 123.—Tomlin's Dig. 74.) What was the fact
in this respect in relation to the prisoners ? Michael Toohey was in-
deed in a rage,but Martin was perfectly cool. He made no exclama-:
tions of any kind, he spoke not a word, but acted his part in this hor-
rid tragedy in dumbshew; and I think it very clear, that both of them
well knew what they were about, and had sufficient self command to
have avoided the deed..
2nd. The killing must not only proceed from heat of blood ; but
the provocation must be grievous. The law will not presume that any
man can be transported beyond all reasonable bounds by a slight
provocation—arid if the fact were so, it would only shew a temper
T
142
and state of mind which would constitute the possessor " hostis
hiimani generis," and make him unfit to live. The case, put by the
counsel, of two striving for the ^vall, and other cases of a similar na-
ture, where one happened to be killed—you will observe, gentle-
men, are cases where death ensued unexpectedly from an unlucky
blow—in none of them, were murderous weapons used, except per-
haps where there was a mutual contest, both parties being so arm-
ecT. (3d Chitty, 730.—Foster, 290.—1st East, 293.)
3rd. Though the killing be in a sudden affray—though it be
done in heat of passion—though the provocation be grievous, yet
if the assailant be armed and the other party unarmed, or if both be
armed, and one draw and make a pass before the other draws—it is
murder.—A useth provoking language or behaviour towards B.
" B striketh him, upon which a combat ensueth, in which A is kill-
" ed. This is holden to be manslaughter, for it was a sudden af-
" fray and they fought upon equal terms; and in such combats upon
" sudden quarrels it mattereth not who gave the first blow.
" But if B had drawn his sword and made a pass at A, his sword
u then undrawn, and thereupon A had drawn and a combat had
" ensued, in which A had been killed, this would have been mur-
" der; for B by making his pass, his adversary's sword undrawn,
" sheweth that he sought his blood; and A's endeavour to defend
u himself, which he had a right to do will not excuse B; but if B had
" first drawn and foreborne until his adversary had drawn too, then
" it had been no more than manslaughter."—Foster, 295. Chitty,
730,731,732.
It will be perceived from the authorities adduced, that mere words
of abuse, and not even a trivial assault, can reduce the killing to
manslaughter; and if on such provocation the parties fight an un-
equal terms it is murder. 1st East, 234, 5 &6. Id 240.
4th. If from the whole circumstances of the case the " mala mens"
the evil intention—" and disposition regardless of social duty" can
be collected—the killing will be murder;—as where circumstances of
barbarity or unfairness attend the transaction, such as shew the party
meant not to fight, but to kill.—1st Haw. 126.—4B1. 198 & 9.—
The fact that a man killed one who came to part the combatants
is held conclusive of this evil disposition ; because a man must be
lost to every sentiment of duty who can be so indiscriminate in his
rage.—1st Ilaw. 127. You see Martin Toohey attempting to kill
"M'Dowall—his mind therefore was precisely that which constitutes
the murderer.
5th. Whenever men intend to commit an unlawful act, and in the
prosecution of that act death ensues, it is murder—as where men
commit a riot, a trespas, or an assault. I have already dwelt some-
what at large on this point, and I trust proved, that in such cases
all who act together on such unlawful occasion, are guilty of mur-
der ; and they are all principals.—See also 1st Haw. 127.—1st Ch.
257—Tomliirs Dig. 78.
From every view therefore, which can be taken of this subject, it
appears most manifestly that this offence is not manslaughter, nor
143
excusable homicide—it must therefore be murder* Let me recal a
few of the facts and apply them to the rules of law I have laid down.
I am inclined to believe that this assault arose suddenly—how, we
know not. Gentlemen have indulged themselves in fanciful con-
jectures on that subject—they suppose that Mr. Gadsden may have
assaulted or abused the prisoners. But they tell you be was a most
amiable and peaceable man—the head of a large family, with cbil-
dren grown up. Is it at all likely therefore, that he would assault the
prisoners?—He alone, and unarmed—they, together, in uniform, ard
with arms in their hands r—Impossible !—How then, say the coin>
sel, did the assault begin ? If I am at liberty to conjecture, I would
say that it is not improbable that Mr. Gadsden arrived at the
corner a little after the prisoners, and, as they were all going
the same way, walked behind them or attempted to pass them.
The prisoners probably took offence at some trifling circumstance,
and in the insolence of power, and with the brutality often found
among the lower classes of society, abused, cursed or perhaps
struck him. The deceased probably retorted their abuse, and then
they fell upon and killed him. The secrets of that fatal night can-
not be disclosed to us. But two other conjectures present themselves
either of which might account for this affair. You remember the
dispute between Marks and Michael Toohey—the latter had in-
jured the former, and went away refusing to make an apology—in
little more than an hour afterwards he called at the house of Hy-
ams (where Marks was) for his wife—she came out, and perhaps
as soon as they had turned the corner, he saw Mr. Gadsden com-
ing behind him—he may have taken him for Marks, and at once
supposed he came to ask an explanation. The assault originating
in mistake, may have been prosecuted in revenge. I will in-
dulge one other conjecture—you remember the witness tells
"you he made it a rule " never to go out of an evening with-
out his wife," he may have been jealous, and if so, the con-
versation he had with Moses, as to leaving his wife in his care,
may furnish a clue to the transaction. I repeat however, these
are conjectures merely, which like those of the counsel for the
prisoners are not entitled, to the smallest weight—we must judge of
the affair only from the evidence. From this it is clear that Mr.
Gadsden did not assault the prisoners—they attacked him—they
had no provocation—he was wholly unarmed and alone—they were
armed with deadly weapons—he retreated, and they pursued him
—he endeavoured to escape—made no resistance, called for help,
and was heard to ask them " what he had done, that they should
treat him in that manner." The prisoners both struck him, Mar-
tin certainly with a bayonet, Michael with his fist (and as I shall
presently prove with his bayonet also.) They were both on him at
the same moment, and under these circumstances he was killed. IF
these circumstances do not constitute murder, then all the law I
have read must be blotted from the books.
I come now to consider the last excuse offered by the counsel for
the prisoners—they tell you they were drunk; and this they con-
144
tend is a legal excuse. I am indeed astonished at the position—if
there be one principle of law so settled and firmly established, as
to admit of no dispute, it is this, that drunkenness shall in no case
excuse a man for the commission of an offence. I have read to you
the law from 3d Chitty, p. 725, and 4th Bla. p. 26—I hold in my
hand an edition of Hale, upwards of 100 years old, and in p. 43
you find it written—" a man when drunk killeth another, this is
felony and indeed all the books ancient and modern, without a
single exception, agree that drunkenness is no excuse—there is not
a case, nor even a dictum to be found to the contrary. But this is
not only a settled rule of law, but it is a rule of right reason, nay,
of absolute necessity. If drunkenness were a legal excuse for
crime, then it would be in the power of all men to commit every
crime with impunity—how easy to pretend drunkenness ! (in this
very case it was pretended, as I will prove to you, and witnesses
have been found to swear that it was a reality.) How much easier
for a man to become drunk in order to commit crimes ? How are
you to discover the fact ? You will only know that the man was
drunk, and that the crime was perpetrated. Suppose a man to
resolve on murder, he knows that drunkenness is an excuse—he
drinks, and then say the gentlemen, he is no longer restrained, but
may walk forth and wreak his vengeance. This doctrine would at
once authorize the commission of every crime with impunity, and
would desolate the world—civilization would be at an end—all go-
vernment would be subverted, and men would be reduced to a state
of nature-—A man may be so drunk as not to know right from
wrong, and in such a case, I admit, that his whole moral guilt was
incurred when he voluntarily placed himself in that situation—yet
Still, policy would require that even such a man should be punished
for every offence he might commit while in that condition. Judge
Jleeves, in his work on the " Domestic Relations,''p. 431, very
properly states this to be the reason of the rule, and adds that the
rule is so necessary that it could only be dispensed with " by making
drunkenness, itself a capital offence." But the counsel tell us, that
Blackstone quotes Lord Coke; and he, refers to Plowden,and when
we look to Plowden, we find the rule to be merely staled by counsel
in argument--Blackstone states it to be a settled rule of law—he
quotes Coke, he, also states it as a rule, and though Plowden is
mentioned in the margin, yet I presume that was by the publisher:
But when we refer to Plowden, we find the rule alluded to, by way
of argument, and stated to be a settled rule of law, and a number
of very ancient authorities are quoted in support of it, the very
names of whom are almost lost in the mists of time.
It matters not. however, how the rule originated, it has been set-
tied for hundreds of years; it is law, and 1 add reason and policy
also. The counsel have said, that every man in this community
can tell you that drunnkenness is no excuse for an offence—he la-
ments their error, and wishes them to be undeceived. In such a
delusion, (if it were one) may they forever remain—but I have no
fears on this subject—his honour will tell you, gentlemen, and the
145
community'will this day learn, that drunkenness is in no case an ex-
cuse for crime. I confess I cannot regard drunkenness in itself, in
the same favourable light in which it has been viewed by my friends;
it is not only in itself a crime, as it reduces man to a level with the
beasts of the field, and deprives him of reason, the best gift of
God—but it is forbidden by all laws human and divine, and worst of all
it brings in its train a host of evils and unnumbered crimes. Look
abroad in this community and see how many widows and orphans
it has made—see how many estimable men have suuk by the ope-
ration of this single vice, to ruin and infamy. I have not time to
trace its dark and devastating course.. That unfortunate man who
now stands at your bar, awaiting the awful sentence of the law,
could perhaps tell a tale on this subject, which would be tiie best
answer to the arguments of his counsel. He was once, say the
witnesses, an amiable man, of good temper, of mild manners—he
has latterly become intemperate—he has lost in some measure his tem-
per and his character; and though he was not drunk when the
bloody deed was done, he was under the influence of liquor: and
perhaps but for that, the murder would not have been committed
which he is this day to answer with his life. Oh! let all who hear me
take warning from his melancholy fate—let them shun as they would
a pestilence, that fatal cup which destroys at once, both body and
soul.
But neither of the prisoners was in fact drunk when this murder
was committed. They came down most intricate and dangerous
stairs, without the least assistance, and all the witnesses, (except
their brother, Mr. Turner, and Mr. HefTernan) agree, " that they
knew perfectly well what th y were about." Patrick Toohey and
Turner speak only of Martin, when he got home after the murder,
and where he certainly feigned drunkenness—and IlefTernan is a lad
who saw them after the murder, but for a moment, and was not
very likely to form a correct opinion. Ail the witnesses who saw
the prisoners when they were arrested, agree they were not drunk,
and the conclusion is therefore inesistabie—that though they had
been drinking, they were not drunk, but knew very well what they
were about. But I will prove to you, that both of the prisoners pre-
tended drunkenness after the commission of tiie crime—remember
M'Dowall tells you they were not drunk when the crime was com-
mitted. They went home without assistance, and this was a little
after 9 o'clock. The moment Martin came into his house, says
his brother, he could not stand, he had to be put to bed, and
when Turner arrived there an hour afterwards, (with the virtuous
intention to aid him in making his escape) he was as heavy as a log—
he drew him out of bed by the feet—he shook him violently for ten
minutes, till his teeth chattered in his head—he could not be stirr-
ed. At length, alarmed by Turner's threats, he awoke, and in a
very short time we find him on his feet, and seeking his safety in
flight. Turner himself was surprised at his very sudden recovery.
But, it is said, he must have been drunk, because he had been vo-
miting—this was a part of the plan of deception—and the means
146
©f producing it were certainly in his power, for he might have drunk
the gin which Turner saw on the table, till the effect was produc-
ed. But it is not likely after vomiting, that he would have remain-
ed so drunk. Now remember Michael's situation, and you will see
most clearly, that this drunkenness was at least concerted between
them. lie got home also, with no assistance but that of his wife,
(whose feebleness has been described to you.) But in his yard he
lay down upon his face, as if he were dead, and there he was found
at eleven o'clock, (two hours afterwards) when Martin and Patrick
Toohey arrived. He too was roused with great difficulty, and yet in
one hour and a half afterwards, both of the brothers are surprised
by the guard, seated round a fire, and neither of them drunk. It
is strange, indeed, that Michael Toohey should just find strength
to reach his door, and then should lay down insensible—that on a
winter's night he should lay in his yard, and his wife should suffer
him to remain there for two hours. Strange, that Martin also should
become drunk the moment he got home—that both of them should
be so very insensible, yet, that both should recover the moment
they thought pursuit was at an end. This drunkenness, gentlemen,
was most manifestly a pretence, preconcerted between the prison-
ers, hhd has a close connection with their pretended ignorance of
all that had passed.
I will now, gentlemen, very briefly notice some of the cases quo-
ted by the counsel—I cannot advert to all of them, it would ex-
haust your patience, as well as your time. The case of the Scotch
soldier, was referred to from 1st East, 244. In that case he was ao
tually assaulted, thrown against a settee, and finally thrust out of
the room, under such circumstances the killing was deemed man-
slaughter; but there is not a single circumstance here of a si-
tniiar nature. The next case is quoted from the same book, and is
that of a shoemaker who stabbed a man with a knife—but there
you will see from ah examination of the case, that he had been
abused by the deceased, and had returned home, and was quietly
seated at his own door, with his knife in his hand cutting a piece of
leather. The deceased came by, abused1, and then took hold of
him and threw him on the ground. In that situation the shoemaker
stabbed him with the very knife he had in his hand when assaulted.
John Brown's case is next quoted from Leach 135. There, he was
assaulted by a mob, and the witnesses swore that he must have lost
his life, had he not drawn his sword. You see in that case how out-
rageous was the assault—he thought his companion murdered—
you see his forbearance, and that he killed the keelman, under such
circumstances as justified his believing him one of the mob. Mary
Jdeyh case from the same book, you see was never decided by the
Judges, though even there, the man she lived with, was forcibly seiz-
ed by persons who refused to state their object, and as it turned out
had no lawful warrant. The cases of the man Who threw a hammer,
and the shepherd who threw a stake, were decided on the ground,
that such an assault was not likely to kill—but had the parties with-
out throwing them, dashed out the brains of the deceased, it must
J 47
have been murder. In the case quoted from Smith's trial, the pan-
ty killing was actually assaulted, and the killing was almost acci-
dental, yet it was deemed manslaughter, and that too, though the
man was very drunk. The case quoted from Fitzgibbon, p. 177? is
no way analogous to the present. There, a prisoner was killed by
the ill-treatment of a gaoler—and it was merely decided that the
sheriff was not an aider and abetter. In the opinion of the court in
that case, we find these words, " the verdict finds that the sheriff
" saw the deceased during his imprisonment j but that does not im-
Cl ply that he knew his condition, and the seeing him could be no
" crime—the verdict should have found that the sheriff was aid-
i! ing and abetting." The case of the father who killed the boy
that had beaten his son, was decided, says East on the ground, that
he struck him with a small stick, not likely to kill. In Naylor's
case quoted from Foster, 278, a man when drunk was fallen upon,
thrown upon the ground and beaten there, and while in that situation
stabbed the assailant with a penknife, yet it was held t» be man-;
slaughter. The gentlemen have referred to several cases which
have occured in this court—the first is Berg's case, there, in a sud-
den affray, a man was killed by an unlucky blow with the fist. The
case of Hurst's child (in which I was one of the counsel) was a
mere accident—a gun went off in the hands of the prisoner, that he
had no reason to believe was loaded. In Matterau's case—the
gentleman is mistaken, when he says the aiders and abetters were
acquitted—they all escaped and were never brought to the bar. A
man named Chocolate was indeed tried with Matterau, but the
evidence against him was not sufficient—and Matterau was execu-
ted on evidence by no means as strong as that against the prisoners.
The case of the unfortunate Dennis, is the last I shall notice.
That young man saw Shaw beating his father, and on interfering to
rescue him (as he was bound to do) was himself cruelly beaten.
He sent Shaw a challenge, (winch was at that time scarcely deemed
an illegal act)—Shaw gave him no answer, but met him in the
public market, kicked him, and then declared that he would
do the same whenever he should meet him. Dennis shot him—
and inasmuch as he had time to cool before the deed was
done, he was found guilty of murder and was executed. Now
if Dennis, under such circumstances, was deemed worthy of death,
what must be the fate of the prisoners ! I shall hasten, gentlemen,
to a conclusiou—you must clearly see, that all the cases quoted by
the counsel, are widely different from that of the prisoners. You
must see that none of the legal excuses offered for them, can avail
any thing—you cannot shut your eyes to the fact, that they are
legally and morally guilty of murder.
Bear with me, gentlemen of the jury, for a few moments longer,
while 1 endeavour to present in one view and in a condensed form,
the evidence against each of the prisoners. What then is the evi-
dence against Michael Toohey whose case has been presented in so
favourable point of view by his counsel, and who, we are told, must
at all events escape, though his unfortunate brother should perish.—
148
Gentlemen, he began the affray—when M'Dowall came up he had
the deceased by the collar. M'Dowall saw him strike the blow over
the left eye. You remember his violence—his attempts to break
away and follow the deceased—his exclamation, " the rascal—the
Ged-damned rascal." You remember the frame of mind in which
he was—His conduct towards Marks evidenced a very bad heart,
and you see him in the ranks boasting of his conduct, and his bro-
ther also approved of it, and saying of Marks, '' he canae to the
right place." Gentlemen, I will prove to you clearly that Michael
Toohey not only struck the deceased with his fist over the eye, but
he also struck him with a bayonet; and [ do verily believe, gave the
wound in the back. At first I supposed that wound had been given
by Martin, when he followed the deceased with a bayonet in his
hand ; but Moses, probably, came up too soon to enable him to ex-
ecute his purpose; and the fact, 1 think is, that Michael stunned
the deceased by the blow over the eye, and as he turned from him,
gave the wound in the back. And now for the proof of this—You
recollect M'Dowall saw the blow over the eye given by Michael—
he did not see a bayonet in his hand, it is true ; but his eve was rivet-
ted on Martin Toohey. Now, Sutcliffe also, saw a blow given by
Michael, where, he did not notice—but immediately after that
blow, he saw Michael Toohey in the act of hiding something under
his coat, as if he was returning his bayonet into the sheath. You
recollect the gestures used by Sutcliffe—they are stronger than
words. If Sutcliffe speaks truth, Michael Toohey did return a bayo-
net into its sheath; and if he had a bayonet drawn he must have
given a wound with it—and that wound was the one in the back.—
It was denied that Michael had a bayonet-—that ground, however, is
abandoned—He was found with one by the guard. I will mention
but a single other fact—When Michael Toohey left Galloway's
he buttoned up his great coat close over his belt. Heffernan tells you
that when he saw him a few minutes after the affray, it was button-
ed up in the same way Rut it was open when Sutcliffe and M'Dovv-
all saw him during the affray. For what purpose, but to get at his
bayonet ? Now connect these fa< ts with those already relied on,
particularly his laying in the yard m his face, and his being found
up at half past twelve o'clock, and say if his guilt is not established
beyond all question.
I come now to sum up the evidence against Martin Toohey,
which I am sorry to say is still stronger. He was not drunk dur-
ing the affray, he was perfectly cool, he spoke not a word—the
moment M'Dowall came up, lie went up to him, and stabbed him
in the stomach, just below and a little to the left of the navel—with
the same bayonet in his hand, he instantly flew upon the deceased
and struck him—and where did the deceased receive a mortal
wound ? In. the stomach, just below and a little to the left of the
navel, in the identical spot, in which the prisoner had the moment
before stabbed M'Dowall. Is there a shadow of doubt left that he
gave the mortal wound ? And these facts sufficiently manifest his-
murderous intention. Let us follow Martin a little further—he'-*
149
goes home, and there pretends to be drunk—Turner comes in and
tells him if he is guilty to escape, if innocent to remain. He is
very suddenly sobered, and agrees to go, by which (according to
Turner's account of it) he certaintly admitted his guilt - after
going sOme distance, he finds he is not pursued, and there-
fore returns to his brother's. There they sit up till past mid-
night, waiting no doubt to see if they were pursued. The front
door was locked and the gate bolted, but the back door was open
and nothing prevented the escape of Martin at last, but
the silence with which the guard came. The moment Lieutenant
Fell came in, Martin drew his bayonet, and said he would not be
taken, and the party then coming in, alone prevented his attempt-
ing to kill Fell. Finding himself surrounded, he ran up stairs and
attempted to escape out of the windo w—here he was stopped, by the
guard being asked if he was loaded, and hailing him. We next
see him, after whispering with Michael, making the desperate at-
tempt to escape from the guard—he ran off in the face of eight
men, all of whom he supposed had loaded muskets. How strong
must have been the weight of his guilt, to induee him to make so
desperate an attempt. These circumstances, together with others,
on which I have already said enough, establish the guilt of Martin
Toohey, beyond all controversy.
Gentlemen, there is one species of evidence in this case, on which
I have as yet said nothing; I mean the dying declarations of the.
deceased—this is evidence of a very high nature—(Phillips on Ev.
page 200,) lays it down iC that the dying declarations of a person
" who has received a mortal injury, are constantly admitted in
" criminal prosecutions, and are not liable to the common objec-
" tions against hearsay evidence. The principle of this exception
" to the general rule is founded partly on the awful situation of the
u dying person, which is considered to be as powerful over his
t( conscience, as the obligation of an oath; and partly on a supposed
" absence of inlerest on the verge of the next world, which dis-
" penses with the necessity of cross examination. But before
<e such declarations can be admitted in evidence against a prisoner,
u it must be satisfactorily proved, that the deceased, at the time of
if making them, was conscious of his danger, and had given up all
et hope of recovery—this consciousness of approaching death may
" be collected either from the circumstances of the case, (as from
(i the nature of the wound and the state of the body) or from expres-
" sions used by the deceased. And it has been decided by all the
i( judges, that the question, whether the deceased made the de-
" clarations under the apprehension of death, is a question for the
i( judge to determine, not for the jury."
This evidence, gentlemen, goes to confirm all the prominent facts
of the case—if you credit these declarations, and you must give
them almost the same credit " as if an angel spoke," the prisoners
are without excuse—all the witnesses agree that the deceased cried ,
murder" repeatedly—" murder—I am dead, he has assaulted
" me," were the words he used to Moses—" I am stabbed, I am
150
wounded, I arn a dead man," were his exclamations to Hyams—
and M'Dowall tells you, that when in the grasp of the prisoners,
he exclaimed, " he did not know them ana never had done them
any harm or words to that effect.
I hav<* done gentlemen, with the law and the evidence, in this
most painful case—I did intend to dwell on the character of the un-
fortunate Mr. Gadsden, but I must wave the subject—I fear it
might enkindle feelings towards the prisoners, which I would not
wish to exist. There is one topic however, introduced by one of the
counsel for the prisoners, on which I must make a few remarks—he
tells you that the character of this city is at stake, and that you
must not by your verdict, declare to the world, that there exists
among us, men who could commit so cruel a deed. Gentlemen,
let me tell you, it would be a much deeper stain on the character
of our city, if the perpetrators of so foul a murder, could escape
unpunished—-ami let me tell you also, that the peace, the safety,
the weli being of this community, all require that the prisoners (if
guilty) should suffer the penalties of the law. If these men escape,
no individual in this community, is safe from the dagger of the as-
sassin. Seldom indeed are such acts, shrouded as they are by the.
mantle of night, brought before the eyes of a court and jury, with
half the evidence adduced in this case; and if these men are ac-
quitted, there can no man be condemned.
1 have now performed, gentlemen of the jury, the painful task
imposed on me bv the State. If I have displayed any zeal, it has
been elicited by the great efforts of the counsel for the prisoners—
acting under the most solemn conviction of the guilt ot the prison-
ers at the bar, I could not do less, without betraying my trust.—
I entertain for those unhappy men, no feelings but those of com-
passion—to stifle those feelings has cost me a painful effort—I thank
God, I have been enabled to perform my duty (however feebly)
with firmness and fidelity—I know that you will also perform yours.
The Arguments of the Counsel being closed, his Honour JUDGE
NOTT, delivered the following Charge to the Jury :
Gentlemen,
WE have now arrived at that stage of this important and inter-
estir.g case, which makes it my duty to give you the view I have
taken of it, as far as it becomes me to express an opinion; in the
performance of which duty, I shall not travel over again the mass
of evidence which you have heard, nor lead you through the laby-
rir th of law and learmng v ith which yon have been entertained,
by the ingenuity and research of the counsel. ■ .
151
I have already taken occasion to caution you against permitting
your minds to be influenced by the excitement, under which it is
Said public opinion is now labouring; or to suffer your judgments to
be led astray by any thing which you may have heard without the
walls of this house—public report is the most fallible of all evidence.
It has been said to creep at first upon the ground like a serpent, in
its progress it rises to the size of a giant, and ultimately hides it
head in the clouds. You have but one duty to perform, move di-
rectly on with firm and steady resolution to the object of your en-
quiry, directed alone by the law and the evidence, and adopt
that conclusion to which they shall lead; and if you shall find that
the prisoners are not guilty of the charge alledged against them, it
will be your duty to acquit them—but if, upon the other hand, you
shall find they have come into court, with hands stained with crimes,
and clad in garments dipped in blood, it is equally your duty to find
them guilty.
The very patient attention with which you have listened to this
long and laborious investigation, the harmony and candour with
which the cause has been conducted by the counsel on both sides,
(which is equally honorable to themselves, and beneficial to thepri-
soners) have relieved me from the necessity of taking up the evi-
dence in detail; or of noticing particularly, the numerous authorities
which have been referred to. I will only bring the most prominent
features of the case to your view, and lay down a few simple prin-
ciples, by which I think it ought to be governed.
Taking the life of a man in any manner, is denominated homi-
cide. Under this geperal term -re embraced, murder, manslaughter,
and, that, which for want of a better name, we call lawful homicide.
For although by the English law, there are several species, such
as excusable homicide, justifiable homicide, homicide in self-defence,
by misadventure, &c. yet by our law, unless the killing amount to
murder or manslaughter, it is no offence, and may be conisdered
lawful.
Murder is defined to be taking the life of any reasonable' being
with malice aforethought, either express or implied ; but the word
malice, is not here taken in its common acceptation, to mean a hostili-
ty against a particular individual; but where the act is attended with
those circumstances, which are the sure indications of a heart void
of all social duty, the perpetrator will be looked upon as the enemy
of all mankind—and therefore, if a person"by firing a gun into
a crowd, should kill his nearest friend or brother—or, if a person
should wantonly throw any heavy thing from the top of a house
where many people are walking in the street below, and one should
be killed—or, where a husband gave a poisoned apple to his wife,
who not knowing that it contained poison, gave it to her child who
was killed by eating it; although the object nearest his heart, the
child of his affection, had falien the victim of his wickedness, and
not the person whom he intended, it was nevertheless murder.—
Malice may be either express or implied—express malice is
manifested by former grudges, antecedent menaces, laying in wait,
152
&c. malice will be implied, where one takes the life of another
without any provocation—Hale, p. 445 ; and from various other cir-
cumstances, as the weapon used, &c.
, It is admitted in this case, that a person has been killed ; and the
first question will be, did he come to his death through the instru-
mentality of the prisoners at the bar. To determine that question,
it. will be necesssry to call your attention to the evidence which has
been given. M'Dowall who appears to .have been the first person
present at the scene of action, says that he was one of the compa-
ny at the festival that night; having occasion to step put of the
door, he heard the cry of murder across the street opposite to him ;
he stepped immediately across to the place from whence the cry
proceeded, when he saw the prisoner Michael Toohey, having a
person whom he did not know, by the collar, and the other pri-
spner standing by him. The person thus attacked, afterwards
turned out to be the deceased. Michael Toohey's wife at the same
time had him by the arm, endeavouring to pull him away—Witness
then stepped up to him and requested him to go with his wife; and
while thus peaceably persuading him to desist from the assault, Mar-
tin Toohey stubbed him (witness) with a bayonet, which he had
drawn in his hand. The deceased about this time broke from him-
and the prisoners both followed after and struck him. He did not
see Michael Toohey have any weapon iti his hand, and he thinks
he should have seen it if be had bad one; but he saw him strike
with his fist. Sutdiffe, the next witness, says, he was drawn to
the spot by the cry of murder; he saw no body there on his arrival
but the two prisoners and the deceased ; the prisoners were in a
great rage; Martin had his bayonet unsheathed in his hand, bran-
dishing it; he saw no weapon in the hand of Michael, but saw him
strike the deceased. He thought he saw him put his hand to his
side as if in the act of returning his bayonet to the sheath. Moses,
the next witness, was also attracted by the cry of murder; upon
his arrival, he met the deceased, who threw himself into his arms,
saying he was murdered; and pointing to the prisoners, said there
is the man who has assaulted hie, or he is -the man. There were
then no other persons present, excepting the two witnesses, M'Dow-
all and Sutcliflfe—Sutciiffe says that h. did not see M'Dowall when
lie first came up, but he saw directly after, another person (whom
he does not know) between the prisoners and the the deceased, who
appeared in a great rage, abusing the prisoners, and espousing the
cause of the deceased.
Here then appears to be the united testimony of M'Dowall, Sut»
clitie and Moses, all tending to fix the fact upon the prisoners, to
winch may be added, the dying declarations of the deceased, and
the corresponding evidence of the facts themselves. With such a
concatenation of facts, and circumstances all tending to the same
point, it is impossible from any view that 1 have been able to take of
the case, to come to any other conclusion, than that the prisoners
were the perpetrators of the deed.
153
It has been attempted to shew, that the testimony was contra-
dictory. The witnesses have varied a little in some immaterial
circumstances—but they agree remarkably well in all the essential
points. Sutcl'ife does indeed say, he saw another person, whom
he did not know, between the prisoners and the deceased, from
whence, it is inferred, that that person may have given the mortal
blow—but he was defending the cause of the deceased if there at
at all—but Vi'Dowall and Moses saw so such person. And Sut-
clifFe himself says, he was so alarmed and agitated, that he has no
distinct recollection of the order in which the facts occurred, for
to use his own words, u the night was dark and the scene awful."
It is also further contended, that as there is no proof that the mortal
wound was given by either of the defendants, it must be presumed to
have been given by some other person. But since it has been pro-
ved that two out of three of the wounds which were found on the body
of the deceased, were given by the prisoners, it would be contrary
to all probability to suppose that the third was given by any other
person, when it does not appear that any other was present.
The next question is, was the act committed under such circum-
stances as to constitute murder. The rule of law is, that where the
killing is proved, malice is presumed, unless a contrary presump*
tion arises out of the circumstances which go to establish the fact,
or unless the accused shew some evideuce in palliation or excuse.
I do not observe any evidence of express malice in this case—it is
only to be inferred from the circumstances of the case. I have al-
ready shewn, that where a person is killed without any provocation,
malice, which is a necessary ingredient in murder, will be impli-
ed. If a person who has heard this case, were to give an account of
the transaction, would he not be almost reduced to the necessity of
saying in the words of Lord Hale, that the prisoners " had taken
the life of the deceased without any provocation." The want of a
motive enters into the very essence of the crime—and we are not
to go into the boundless field of conjecture, in search of an excuse
for the defendants, which the evidence does not authorize. If any
cause did exist, which could either palliate or justify the act, and
you can penetrate the veil by which it has been hidden from my
view, you are not only authorized, but it is your duty to give the
prisoners the benefit of it.
Much reliance has been placed on the good character of the de-
fendants—but I can see nothing in this case to make it an excep-
tion to other cases of ordinary good character. In cases of a
doubtful nature, character will avail much ; but it will not exempt
a man from punishment where a crime is clearly and unquestiona-
bly proved upon him.
Another, and which seems to be thought a formidable ground of
defence, is, that the prisoners were intoxicated at the time. It is
now contended for the first time, that the maxim of Judge Blackstone,
that drunkenness is rather an aggravation than an excuse, is founded
in error. The counsel have traced it up to Aristotle, and have
come to the conclusion, that it was a mere theory of that philoso-
154
pher, suited perhaps to the times in which he lived, but not calcu-
lated for the present refined state of society. But the argument
has not been sufficient to satisfy my mind, that all the cases of an-
tiquity from Aristotle down to Lord Coke, and from him to the pre-
sent day, all the judges and commentators on the common law,
have adopted the visionary speculation of a heathen philosopher,
as an axiom of jurisprudence, without, examining the correctness
of the principle which it contained—1 should conclude, rather that
it had been considered in all ages, an equally sound principle of
philosophy, morality and law.
The counsel then resort to principle, to shew that intoxication
must necessarily be an excuse. And the whole argument resolves
itself into the following syllogism A man deprived of his reason,
cannot commit a crime. A drunken man is deprived of his reason,
and therefore a drunken man cannot commit a crime. It the pre-
mises were universally true, the conclusion would be inevitable.
But the sophistry is in the first proposition. A voluntary depriva-
tion of reason, is a universal exception to that rule. It is only
where the loss of reason is by the visitation of God, that it exempts
the perpetrator from punishment. It is admitted in the argument,
that, where a person becomes intoxicated with a view to commit a
crime, it is no palliation of his offence—but that is an admission of
ail that is contended for. We cannot look into theshearts of men,
to see the secret springs and motives of their conduct. It is only
by their acts that we can judge of their motives. Let the mantle
of drunkenness be a shield to protect offenders from justice, and
the tipling shop a sanctuary to protect its votaries from the arm of
justice, the cry of murder will become familiar to your ears, and
the basest of crimes stalk unrevenged through the streets of your city.
It is not contended that drunkenness changes the nature of the trans-
a ction. The same act w hicli was committed by a sober man, would
be murder or manslaughter—would constitute an offence of the
same grade if committed by a person in a state of intoxication.
And the same circumstances which would be a justification in one
case, would be equally so in the other. But if this is the strong
ground of defence on which the prisoners rely, their fate is inevi-
table I'he failure of this, however, will not weaken any other, if
they have any other, that can avail them. I have now gone through
the evidence of the case, and made all the observations which ap-
pear to me necessary, to enable you to come to a correct con-
elusion as to the principal question submitted to your consideration.
I have not touched on all the cases which have been read in the pro-
gross of the trial, because they appeared to me calculated rather
to perplex and embarrass t he case than to throw any light upon it.
i have endeavoured to bring the most essential parts of the evidence
to your view, and to lay down the principles of law, by which the
case ought to be governed in such a manner, that I apprehend you
cannot be mistaken in the application of them.
I shall now take my leave of the case, after noticing one other
question to which it is my duty to call your attention; and that is whe
155
ther, if you should find one of the prisoners guilty of murder, you
can, under the circumstances of this case, acquit the other, or find
him guilty of manslaughter. I take the law to be, that if two or
more come together to commit murder, and the mortal stroke is
given by one, it is murder in all. So if several associate them-
selves together, to commit a riot or trespass, and in the prosecution-
of that unlawful act, one of .the party commits murder, the law
adjudges them all guilty; and so also, if two or more simultane-
ouslytall on another and beat him, and one give him a mortal
blow with a deadly weapon, the law will presume them all guilty/
although there be no proof of previous malice or concert. The-
same circumstances from whence malice would be inferred, would
furnish an implication of concert also. But I consider, that a tech-
nical and rigid rule of law, which transfers the actual guilt of
one to another by implication, is one which ought to be cau-
tiously received, and never to be admitted where it is rebutted by a
contrary presumption. Thus, if one man suddenly fall upon ano-
ther, upon a slight provocation, or even without any provocation
and beat him, and a friend standing by, step immediately up and
give the person assailed a mortal wound with a deadly weapon
without the knowledge or consent of the person who commenced
the affray, it would be murder in him only who gave the mortal
blow. Where a master attacked a person for whom he was lying in
•wait, and a servant came up and assisted the master, and the per-
son assaulted was killed, it was adjudged murder in the master/
and only manslaughter in the servant, because there was no malice
aforethought in him—-Plow. p. 100. ISiowlet us apply the law as thus
laid down to the circumstances of this case. If you should be of opi-
nion that Michael Toohey had a drawn bayonet in his hand, I
think it will be difficult and perhaps impossible to separate one from
the guilt of the other. If you should be of a different opinion, I
think the case may admit of a different view. M'Dowall says he
saw no weapon in his hand, and he thinks he should have seen it
if he. had one. Sutclifie says he saw none And Moses says
he is sure he had none when he came up. For he stood near
the lamp post, and he saw him raise his hands in such a manner,
that he must have seen it, if he had had one; Sutcliffe does indeed
say, he thought he saw him put his hand to his side, as if in the act
of returning a bayonet. But that is too equivocal to deserve much
attention. From all the circumstances, I think it is fair to conclude
that his bayonet was not drawn ; and not having drawn his bayo-
net when he had one by his side, 1 think, authorizes a favorable in-
ference in his behalf. If therefore, you feel authorized to believe
that Michael Toohey intended only to beat the deceased, and that
his brother interposed without his knowledge or consent, and gave
the mortal blow; 1 think you ought not to consider him a partaker
in his guilt. His case would appear still more favourable, if you
can suppose^ that in the darkness of the night, and the confusion of
the scene, when the witnesses could not see very distinctly, and
not recollect precisely the order of time in which the several strekes
156
were given, it may be doubtful whether he followed up his blow
after Martin gave the mortal stroke. I must confess however, that
I think it would be taxing your charity to its utmost extent, to ex-
pect you to take such a view of the case. Perhaps the shade of
difference in their guilt, if any exists, is too small to be distinguished.
But the humanity of our laws makes it a duty, where a rational
doubt exists in the minds of the jury, or when the evidence of inno-
eence and guilt is equally balanced, to let mercy turn the scale in
favour of the accused. I cannot in any point of view, think either
of the prisoners entirely guiltless. If you find one guilty of mur-
der, you will not probably feel authorized to do less than find the
other guilty of manslaughter. And if after the most impartial and
dispassionate consideration you can give their case, you should be
of opinion that either or both are guilty of murder, it is as much your
duty to say so, as to acquit them, if you think they are not guilty.
It is a mistaken sympathy which extends mercy to those, who have
shewn no mercy to others.
I commit the prisoners to your hands, with but one more obser-
vation—give your verdict such shape as to do justice to them, to
your country, and your own consciences, and to meet the most fa-
vourable view of which their case is susceptible.
The Jury retired, and after a deliberation of three hours and a
half, returned with the following Verdict " We find Martin
u Toohey guilty of Murder—Michael Toohey guilty of Man-
" slaughter. CHARLES CLEAPOR, Foreman »
The Court then adjourned.
Friday Morning, 12thFeb. 1819—10 o'clock.
This being the day appointed by the Judge, for passing sentence
•n the various criminals, who were convicted during the Term,
Martin Toohey and Michael Toohey were brought to the bar, the
first, on being asked if he had any cause to shew why sentence of
death should not be passed upon him, one of his counsel rose and
interposed a notice of a motion for a new trial, on the following
grounds :
1st.—Because the evidence proved a sudden affray, without
malice, aud therefore the homicide amounted to no higher offence
than manslaughter.
2nd.—Because the deceased received two blows, only one of
which was mortal; and the evidence proved but one blow inflicted
by the appellant—therefore, as two persons were engaged in the
assault and no positive evidence adduced by whom the mortal blow
was inflicted, both were guilty of manslaughter.
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3rd.—The Jury,by their verdict of manslaughter against Michael
Toohey, have established—That there was no previous concert be-
tween the assailants ; and there was no evidence that the appellant
gave the mortal blow. He could not, therefore, be convicted as the
real slayer, or as one present, aiding and abetting him.
4th.—Because the presiding Judge refused to permit the jury to
be interrogated, either on oath or without oath, whether they had
formed or expressed any opinion-upon the guilt of the prisoners,
which might affect an impartial hearing of tire cause
5th.— Because the Judge was mistaken in charging the jury, that
the intoxication of the prisoner was not a circumstance to rebut the
presumption of " malice aforethought," and such a one as ought
td be weighed by the jury.
6th.—Because one of the jury had expressed his determination to
hang the prisoner before he was sworn of the pannel, which fact
was unknown to the prisoner at the time, and prevented his chal-
lenging him.
These several grounds will he argued before the Constitutional
Court, consisting of all the Judges, in May next; and with them
it rests either to grant or refuse the motion.
On the Clerk asking Michael Toohey, why sentence should not
be passed upon him, William Crafts, jun. Esq. rose and said—
The prisoner Michael Toohey, about to submit to the laws of
his country, lias requested his counsel to state, for the relief of his
mind, and with the hope, though scarcely with the expectation,
of appeasing the feelings of an incensed community, that in the
melancholy catastrophe in which he bore a part, he was entirely
unconscious of what he did, and even now retains no recollection
of the affair*—that he had no enmity towards Mr. Gadsden, nor
any other person—that he had no acquaintance with him, and
mourns the calamity that has befallen his family. That he was
under the strong excitement of liquor, and his actions under the
influence of its sad infatuation.
In these circumstances, is it not charitable to hope, that some-
thing of the detestation which his crime has caused, may be allevi-
ated into pity for his misfortune. What a warning against intern-
per&nce, that it should so alter a man's nature and constitution, that
lie should be found violating all the pledges of virtue and peaceful-
ness, which his former conduct had given to society. So it is, alas!
• with him who yields to this degrading propensity j
" The pilot reason overboard is tost,
And man adrift, is in the tempest tost.'"
The prisoner has inflicted no injury, that has not recoiled with
tenfold violence on himself. His brother to die and himself to live
at the expeVice of happiness and honor. I know not which of
them is the more wretched. Between such a death and such a life,
I know not what there is to choose. And for their relatives, theirs
X'
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is 110 common grief—it is wretchedness steeped in infamy—it is sor-
row aggravated by despair.
The prisoner has no reason to question the verdict of the jury,
nor to delay the sentence of the court, to whose mercy, and to the
divine compassion of the Almighty, he submits himself with resig-
nation and penitence.
His Honor, thereupon, addressed all the prisoners, in the follow-
ing words:—
It now becomes my duty to make known to each of you, the pe-
naity which the law has annexed to the offences for which you have
been indicted, and of which you have respectively been convicted.
And, perhaps, it is thought not to be less a part of my duty, in con-
formitv to custom, to preface the sentence which I am required to
pronounce, with such observations as appear to me proper on such
an occasion. Perhaps, indeed, this duty is enjoined by considera-
tions of a higher nature, than mere custom. For I am willing to
believe, that it is as much the duty of the ministers of justice, to
irsr-stleate the principles of morality, as to announce the terrors of
the law.
i do not know, however, that I am authorized, from experience,
to indulge the expectation, that any benefit will result from the
oi crvations which I shall make.
In a country w here the means of obtaining a living by honest in-
dustry are easy an ample—where justice is administered with equal
and impartial hands to all classes of the community—wherejthe rich
and the poor, the high and the low, the haughty and the humble,
and the great and the small, (if such terms are applicable to our
state of society) are equally entitled to the protection, and sub-
jeet to the sanctions and penalties of the law, one would suppose
there could be little temptation to depredate on the property of
others, or to indulge in those crimes which flow from the worst of
passions, and are the mere indications of a heart void of all social
duty. If the object of punishment is to reform those on whom it
is inflicted, and to deter others from the commission of crimes by
their example, we ought to expect much from the lesson which this
day affords. Contrast the situation in which you lately were, with
that in which you are now placed, sitting each under your own
vine and fig-tree, having none to molest or to make you afraid, en-
joying all the blessings which could be derived from a free andhap-v
py government—surrounded with all the pleasures which a social
intercourse with the society most congenial to your wishes and dis-
positions could afford—you left that happy state to become the te-
nants of a loathsome gaol, almost excluded from the light of hea-
veil, and deprived of those comforts which are even allowed to
slaves—when permitted to behold the cheering light of day, it is
to be exhibited to the gazing crowd, a public spectacle of pity and
contempt—if permitted to mingle again with the world, you are
doomed to carry engraved upon your flesh, an indeK> e mark of
infamy or some other badge, which renders you equally the living
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monument of shame and disgrace—if these are not inducements
for you to turn from the error of vour ways if are not ev-
amples sufficiently impressive, to deter others from treading in your
steps, 1 despair of producing any good effect by any tiling which
I can say.
I wiil, nevertheless, not withhold my feeble efforts to fulfil in any
manner, all the duties which may be supposed to belong to my
station.
It is now too late, perhaps, to advise those of you, over whom
are impending the heaviest punishments known to our laws, to ah-
stain in future from those transgressions, for which you have hereto-
fore been distinguished. For although you may he looking forward
to some fortunate event, by which the threatened calamity may be
averted let me recommend to you, not to be deluded by the flat-
tering prospect of a new trial, pardon, or escape. The multiplies-
tion of crimes, the frequent violation of the laws of your country,
of which this court has furnished melancholy proof, require that
examples should be made. The Governor may think that the pe-
riod has arrived, when the hand of executive mercy ought to he
stayed, and make you the unfortunate victims of that rigid, but
just and necessary policy.
Let the precious time then, during which the forms of law per-
mit to you live, be employed in preparing for your fate. If death
in its mildest aspect, is an awful enemy, whose near approach appalls
the heart of the christian, whose life has been devoted to religion,
and spent in the service of his God, how must it appear to you,
who are destined to meet it in its most terrible form, polluted with
crimes, and with hands stained with blood.
But awful as it is, turn not away from it—you cannot elude its
grasp—look it in the face, and endeavour to soften the asperities of
its countenance, by fervent supplications to the Throne of Grace!
And by throwing yourself at the feet of that Saviour, who alone
can disarm it of its terrors ! ^
To those of you, to whom the boon of life is still extended, ihe
warning voice of wisdom calls aloud to change your course of life.
If the mercy of the jury has redeemed you from the severe penal-
ties of the law, to which your offences might have subjected you.
If through defect of evidence, some of the most prominent fea-
tures of your offence have been kept out of view—or, if by the
darkness of the night, in which the scene has been acted, they have
been disguised; you must recollect, that the day will come when
you must appear before a more awful tribunal, than that before which
you now stand; and before a Judge who cannot err—whose all-
seeing eye can pierce the sable cloud which veiled your ciime from
human sight, and who requires not the aid of human testimony to
develope the true character of your offence—who will not judge of
it by the opinions of men, nor measure your punishment by that
which human laws inflict. Let me recommend to you then, in fu-
ture, to follow that course of life which shall be calculated to pro*
pitiate the feelings of those, whose happines 5 you have invaded or
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destroyed—to conciliate the friendship of the community, whose
good opinion you have forfeited, and to make your peace with that
God, whose laws you have also offended. Let even the mark which
you are destined to wear throughout life, be a beacon to warn you
of vour danger—let it be a cloud by day, and a pillar of fire by
night, to lead you along the path of virtue, by which you may be
happy in this world, and to conduct you ultimately to that haven
of happiness, where " the weary are at rest, and the wicked cease
from troubling."
The Judge then sentenced Michael Toohey " to be branded in
the brawn of the left thumb, with the letter M. in the view of the
Court."
To witness this ridiculous ceremony, an immense concourse of
persons thronged the court, and all the avenues leading to it.—
The prisoner was placed in an elevated frame, and his arm and
hand pinioned to a projection adapted to the purpose. By some
carelessness on the part of those who were to act in thisyarce, the
brand melted, and separated from its handle; it became therefore,
necessary to procure a new one; the prisoner was remanded to the
bar, where he remainened for about three hours, until another wag
procured. In the mean time the populace were amused, by witness*-
ing the process in the case of several prisoners who were convicted
of grand larceny. Michael Toohey was then elevated to his form-
er situation, and the brand was inflicted. But by the clumsy ope-
ration of the hangman, who officiated on this occasion, the impres-
sion was inverted—thus To those who have no physical know-
ledge of this branch of our jurisprudence, it may be desirable for
them to have a description of this little instrument of justice. It is
made of silver, the letter is an open one, of about an inch long,
and formerly it was heated in a cup containing spirits of wine, in
a sate of inflamation, though latterly, burning coals have been
subsituted.—Thus has Michael Toohey expiated his crime.
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APPENDIX.
—*<&>—
U*N the evening of the Seventeenth, of March, through the bribery
and corruption of the turn-key of the prison, (one Eyre or Eery)
Martin Toohey effected his escape. As soon as a discovery of it
was made known to his Excellency, the Governor, he, with a
promptitude and alacrity highly honorable to his character, took
measures to apprehend the culprit, caused sentinels to be posted
across the bounds of the city to intercept his passage out, in the
event of his still being in the city. On the next morning, he issu-
ed a Proclamation, offering a reward of one thousand dollars
for his apprehension, and ordered out the Charleston Riflemen,
and Northern Volunteers, under the command of Captains Payne
and Skinner, to scour the country; while the Washington Light
Infantry, under Capt. Miller, performed patrol and guard duty in
town.—The order was immediately obeyed, and these corps, partly
mounted, left the city, about mid-day, and discharged their duty un-
remittingly during a very stormy night. The next morning, between
10 and 11 o'clock, Mr. Hoffman, a member of the rifle corps, dis-
covered Martin Toohey concealed in the top of a tree, which had fal-
len in a low swampy place, near the Four-Mile-House. Upon per-
ceiving that he was discovered, he fled with the utmost precipita-
tion, throwing off his great coat in the flight. Mr. Hoffman and
another member of the corps, discharged their rifles at him.—
Mr. Edward Morris, a young gentleman, only nineteen years
of age, another member of the corps, being mounted, was the
first to over-take him, the fugitive knelt down, and very deli-
berately discharged a pistol directly at him. One ball or slug,
passed through his coat and slightly wounded his breast, ano-
ther went through his sleeve and passed off under his arm,
without doing further injury. Mr. Morris, although in this
perilous situation remained undaunted, he immeaiatley made a
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blow at his head with his sword, which brought him to the ground,
when others of the corps coming, up he was secured. A courier was
immediately dispatched to the city, with the intelligence to the
Governor. The news soon spread throughout the city, and it being
understood that the Prisoner would be brought down Meeting-street
road, a great number of citizens went out to meet the procession.—
About 2 o'clock it entered the city—the prisoner being exhausted
by the wound he had received, was placed in a cart j to the tail of
which the turn-key, (who had been discovered in an adjacent wood
by a negro) was tied. The concourse of people which had collect-
ed on the occasion was immense ; and the dejected and abject ap-
pearance of the miserable victim, as he was carried through the
streets to the prison, did for the first time, seem to elicit some coin-
passion ; and of itself afforded a lesson, which cannot fail to make
a lasting impression upon the public mind.
" Although the Charleston Riflemen, (says the 1 Charleston Con-
" tier') were the fortunate instruments in aiding the cause of jus*
i( tice, and restoring the character of our community, deserve the
" thanks of all—and the Washington Light Infantry and Northern
" Volunteers, who joined in the pursuit, although not equally for-
t( tunate, will receive the credit they so justly merit. The lively
" interest displayed by the great body of our citizens, for the de.-
a tection of these culprits, .evinces a correct and laudable spirit j
" and we doubt not, that the ^culpable negligence, which caused
" this excitement, will be properly appreciated."
Great credit is due to Mr. Morris, for the cool and deliberate
courage he manifested on this critical occasion ; and his conduct is
a pledge of what his country may expect from him, whenever she
may have occasion for his services.
The promptitude, and zeal, with which his Excellency John
Geddes, met the wishes of the community, in the energetic me a-
sures he pursued, have received the most decided public approbation,
arid justly entitle him to the thanks of his fellowTcitizens.
FIN! <8.