Famous Legal Arguments

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FAMOUS

LEGAL ARGUMENTS SHOWING THE

Art, Skill, Tact, Genius and Eloquence Dis-

played BY OUR Greatest Advocates in

THE More Celebrated Trials OF Modern Times,

WITH SKVURAL KAMOUS CASUS OX

CIRCUMSTANTIAL EVIDENCE

BY

MOSES FIELD.

ROCHESTER, E.

J.

BOSWORTH &

y.

N. Y.:

CO.,

1897.

\

PUBLISHERS.

PART

II.

CIRCUMSTANTIAL EVIDENCE. Page.

HOMICIDE— The

Boorn Brothers Case,

182

HOMICIDE— Anonymous,

185

PARRICIDE— An

188

Indiana Case,

MISTAKEN MEDICAL TESTIMONY— A Vermont Case

190

HOMICIDE— Giff

193

and

Lamph

Case,

MR. HOFFMAN'S ADVICE,

196

JUDGE DONOVAN'S ADVICE,

197

PREFAaE. The

author's aim in this compilation

is

to present to

the Legal Profession, both old and young, and also tp

laymen who delight

to peruse legal literature, the peras used

by our

distinguished advocates in the more celebrated

trials of

suasive arguments,

modern

thought

The

and

skill,

times, selecting those which are in his judg-

ment noted of

art, tact

for their legal reasoning,

quick perception

moments and

forensic power.

at

critical

variety of topics covered

lofty eloquence,

by these speeches,

their

vast research and fertility of genius

displayed will forever

fix

them

in

the minds of the

reader as models of the subjects discussed.

•

In the hope that you will find herein valuable sug-

gestions as well as interesting matter for legal recreation the

work

is

respectfully submitted.

The Author.

:

Famous Legal Arguments. EDWIN

M.

STANTON.

ARGUMENT IN DEFENSE OF HON. DANIEL E. SICKLES FOR THE MURDER OF PHILIP BARTON KEY. DISTRICT OF COLUMBIA CRIMINAL COURT,

WASHINGTON,

D.

C, APRIL,

1

859.

On Sunday, Feb. 27th, the City of Washington was suddenly thrown into a state of excitement on learning that Philip Barton Key, U. S. District Attorney, had been shot by Daniel E. Sickles, a member of Congress from New York. The cause of the terrible affair was the discovery of a criminal intercourse between Mrs. Sickles and Mr. Key, a fact which had been established by Mrs. Sickles' confession to her husband. Mr. Sickles encountered Mr. Key on the street and exclaimed " Key, you scoundrel, you have dishonored my home you must die.' Key instantly raised his hand to his breast for his weapon, whereupon Sickles drew a pistol from his pocket and fired. The shot took effect in the This was followed by a second and third shot; groin. he then fell and died immediately. Mr. S. then desisted firing and gave himself over to the authorities On March 24th, after a thorough examination of the The facts, Mr. S. was indicted for the murder of Key. case was ably conducted by both sides, the trial lasting twenty days. ;

:

FAMOUS LEGAL ARGUMENTS.

lO

The jury was out seventy minutes and returned with a verdict of " Not Guilty." Mr. Stanton, in summing up for the defense, spoke as follows :

May It

it

please your honor

becomes

my

duty

to present

some considerations

in support of the points of law which have been sub-

mitted by the defense, and which points are formity with those which

The event which

may be

con-

in

given a jury.

has brought the jury and the

made the momentous trial,

prisoner at the bar into solemn relations, and

court and counsel participators in this is

the'death of Mr.

Key

at the

hand

of

Mr.

which

S.,

took place on Sunday, the 27th of February.

The

occasion of this event was an adulterous intrigue

between Mr. K. and the wife of Mr. in the case

must depend on the

S.

The law

arising

relations each held to

Two

the other at the time the occurrence took place. theories have been presented

— one by the prosecution,

the other by the defense.

Those

such cases, court,

are

opposite

by a comparison

;

and

it

theories, as will

be

the

for

of those theories with the

all

in

known

principle of law, to give to the jury the instruction.

The

act of taking

human

life is

designated in law

the general term of homicide, which or without malice.

The Act

may

by

be either with

of Congress,

which gov-

erns in this district, designates two grades of unlawful

homicide, namely, murder and manslaughter.

"

Mur-

FAMOUS LEGAL ARGUMENTS. der," says Blackstone, "

described

by Coke

'

:

now thus

is

when a person

and discretion unlawfully

II

defined or rather

sound memory

of

any reasonable

killeth

crea-

ture in being, and under the King's peace, with malice

aforethought, either express or implied'."

The same

author defines manslaughter to be "the unlawful

kill-

ing of another without malice, either express or implied

;

may

which

be either voluntary, upon a sudden

heat or involuntary, but

unlawful act."

in

some

In

the commission of

states

some

the law designates

other grades of unlawful homicide,, but only two are designated by the Act of Congress before referred to

but

life

law

may

will

;

be taken under circumstances which the

excuse or

This must depend on a

justify.

variety of circumstances neither forseen nor enumer-

and must be judged by wise tribunals and by maxims which form the common law of the land, and are essential to peace and security. They are illustrated by examples and cases, whence the reason of the law ated,

can be derived, and by these the true rule of judgment is

a

There are two

ascertained.

man may be exempted from

killing,

namely,

self protection,

classes of cases in

which

judicial

punishment for

which

a natural right,

is

and, secondly, the defense of one's household from the thief or robber.

But there

is

a third class arising from

the social relation, for the law holds family chastity

and the sanctity honor and the

of

the marriage bed, the matron's

virgin's purity, to

be more valuable and

FAMOUS LEGAL ARGUMENTS.

12

estimable

The

man.

the property

law than

in

or

volves the

life

considered.

of the prisoner,

Indeed

man

Here,

political

of

in

it

As

has never

it

in-

com^

more impressive

a form

in

it

cannot be too carefully

principle

this

before a judicial tribunal

than now.

and

On

present case belongs to that class.

rests the foundation of the social system.

any

of

life

the capital of the nation, the social

metropolis of thirty millions of people, a

mature age, the head

member

of a family, a

the learned profession, a high

ofificer

of the

government

entrusted with the administration of the law, and for years at this bar has

of

demanded judgment

imprisonment and death against other men

who

of fine,

for offenses

against law, has himself been slain in open day in a public

place because he took advantage of the hospitality

of a sojourner in this city.

he debauched

and dishonored deed of

killing

Received into his family,

his house, violated the

his family.

On

bed of

his host,

this ground, alone, the

was committed.

When

committed against him by the deceased,

the crime was in

both points

the relations which the deceased and the

of view,

prisoner at the bar bore to each other at the of the fatal act are to be observed

outraged rights

;

in

his

While counsel justified

house,

the other,

by the

assert that

his

— one, as

family,

an adulterer

in

and

a his

moment husband marital

flagrante delicto.

for the prisoner insist that the act

law, the counsel for the

the act

is

is

prosecution

destructive of the existence of

J

FAMOUS LEGAL ARGUMENTS.

I

and demand judgment of death as a

society,

fitting

penalty.

The very existence human life, but on the

of civil society depends not on "

family relations,

Who

knows

not," says John Milton, "that chastity and purity of living cannot be established or continued, except

estabjished in private families, ,from

first

whole breed of men

come forth?"

says another moralist,

the

•\vhere

" is the

"

be

it

whence the

The

family,"

cradle of sensibility,

lessons are taught of that tenderness and

first

cement mankind together; and were

l;iumanity which

they extinguished, the whole fabric of society would be dissolved."

The bond.

first

and most sacred

Np man

any vocation

tie,

When

The

When

a

man

it

with a vow, that she will

accepts a woman's,

honor, serve and obey him, in sickness or in

health, and will cleave only to him. This

let i^

by adultery.

family relations are involved in

all

the ruin of the wife,

fied

fronri

the wife becomes the adulterer's prey, the family

h^and in wedlock, he receives Ipye,

the nuptial

dignity and per-

of the marriage are destroyed

destroyed, and

is

is

he could not enjoy his wife, free

if

the assaults of the adulterer.

manence

however,

could enjoy any happiness or pursue

by the law

of

no man put

God,

"

is

sancti,

what God hath joine4 together

asunder."

sanctified to the

bond

By

husband and

a marriage, the this

woman

bond must be

served for the evil as well as the good.

It is

pre,

the blessn

FAMOUS LEGAL ARGUMENTS.

14

ing of the marital their sins

that

institution,

weans from

it

and draws them to the performance of their

duties.

This seal of the nuptial vow

mony.

Thenceforth the law commands the adulterer,

to beware of disturbing their peace.

no man

shall look

The penalty not originate heart of

man was

family

made bone

in

on a

woman

It

no

is

idle cere-

commands that

to lust after her.

for disobedience to that injunction did

human

in the

statutes

;

it

was written

in

garden of Eden, where the

woman was

where the

and

planted,

the first

No

of man's bone, flesh of man's flesh.

wife yields herself to the adulterer's embrace until he

has weaned her love from her husband

;

she revolts

from her obedience and serves the husband no longer;

when her body has been once surrendered adulterer, she longs

whose life

is

for

to the

the death of her husband,

often sacrificed

by the cup

of the poisoner

or the dagger of the assassin.

The next If in

greatest tie

is

God's providence a

that of the parent and child.

man

has not only watched

over the cradle of his child, but over the grave of his offspring and has witnessed earth

committed to

earth,

ashes to ashes, dust to dust, he knows that the love of

parent for his child

The

died for thee" heart.

is

stronger than death.

bitter lamentation

— " would to God that

— has been wrung from many

I

had

a parent's

But when the adulterer's shadow comes between

the parent and child they cast over both a gloom darker

5

FAMOUS LEGAL ARGUMENTS.

What agony

than the grave.

knows not whether the

1

equal to

is

who

his,

children gathered around his

board are his own offspring or an adulterous brood, hatched

bed

in his

To

?

the child

it is still

Nature designs that children

trous.

of both parents

of her child

;

the mother's care

—a mother's honor

its

shall

is

more

disas-

have the care

the chief blessing

priceless inheritance.

But when the adulterer enters a

family, the child

is

deprived of the care of one parent, perhaps of both.

When

death, in God's providence, strikes a mother

from the family, the deepest husband's heart

is

to his orphan child

and the sweetest conversation be-

;

tween parent and child loved mother

who

is

is

when they

talk of the be-

gone.

But how can a father name a child,

upon a

grief that preys

the loss of her nurture and example

lost

mother

to

his

and how can a daughter hear that mother's name

without a blush cruelty of

?

Death

him whose

lust

is

merciful to the pitiless

has stained the

fair

brow of

innocent childhood by corrupting the heart of the

mother, whose example must stain the daughter's

Such are the

home

as

it

results of the adulterer's crime

exists in the household,

the family of every man. erer

is

it

on the

belongs to

that the adult-

the foe of every social relation, the destroyer of

every domestic affection, the family,

and as

They show

life.

and the desolator

of the

fatal

home.

enemy

of

the

This crime

is

FAMOUS LEGAL ARGUMENTS.

l6

fraught with ruin

and destruction to

to individuals

society.

What to the

the act of adultery?

is

moment

fleeting

Cannot be limited

It

of sexual contact

that

;

be mockery, for then the adulterer would ever

would

escape'.

mock not human nature with any The act of adultery, like the act absurdity.

But law and reason such vain

of murder,

supposed to include every proximate act

is

in furtherance of,

and as a means This

of the wife's pollution.

ple in

American and English

is

to,

the consummation

an established princi-

law, established from the

time of Stowell, as will be hereafter shown. If

'

the adulterer be found in the husband's bed, he

is

within the meaning of the law, as

if

taken in the

act,

he was found

in the wife's arms.

he provides a

If

place for the express purpose of commftting adultery

with another man's wife, and be found leading her, ac-

companying her or following her to that place purpose, he

is

taken

in

the act.

If

vides, or habitually keeps such a place,

tomed by preconcerted

for that

he not only pro-

and

is

accus-

signals to entice the wife froni

the husband's house, to besiege her in the streets, to

accompany him

to that vile den

;

and

if,

after giving

such preconcerted signals, he be found watching her, spy-glass in hand, and lying in wait around a husband's

house, that the wife pose, he If a

is

man

taken

in

may

join

him

for that guilty pur-

the act.

hire a house, furrtish

it,

provide a bed

in it

FAMOUS LEGAL ARGUMENTS. such purpose, and

for

if

17

he be accustomed, day by day,

to entice her from her husband's house, to tramp with

her through the streets to that den of shame, adultery and in

is

the most appalHng one that

the annals of shame

;

is

an act of

is

recorded

moreover, he has grown so

if,

bold as to take the child of the injured husband, his little

daughter, by the hand, to separate her from her

mother, to take the child to the house of a mutual friend while he leads the in order there to

ing

all

mother to the guilty den,

enjoy her,

presents a case surpass-

it

that has ever been written of cold, villainous,

remorseless If this

lust.

be not the culminating point of adulterous

depravity,

how much

farther could

go

it

The wretched mother,

one point beyond.

wife, has not yet plunged into the horrible

mon

prostitution, to

which

is

which she

a

is

man

that,

is

and how

no

the ruined

filth of

com-

rapidly hurrying,

already yawning before her.

mother be saved from

When

There

?

and

Shall not that

shall

it

be done?

has obtained such a power over another

man's wife that he cannot only entice her from her husband's house, but separate her from her child for the

purpose of

guilt,

shows that by some means he

it

has acquired such an unholy mastery over that woman's

body and

soul

her while he tion

is

The

that

lives,

there

is

no chance of saving

and the only hope of her

that God's swift

vengeance

salva-

shall overtake him.

sacred glow of well-placed domestic affection,

8

FAMOUS LEGAL ARGUMENTS.

1

no man knows better than your Honor, grows brighter and brighter

as years advance,

whose hands were joined

and the

faithful couple,

holy wedlock

in

in

the morn-

ing of youth, find their hearts drawn closer to each

other as they descend the at its foot inal,

;

of

hill

but lawless love

is

life

to sleep together

short lived as

it is

crim-

and the neighbor's wife so hotly pursued, by

tramping down every human feeling and divine law, is

speedily supplanted

lust,

by the object

and then the wretched victim

cast off into

miserable

common

life

some

fresher

prostitution and swept through a

and a horrible death to the gates of

unless a husband's

Who

of

sure to be soon

is

arm

hell,

shall save her.

seeing this thing would not exclaim to the un-

happy husband

:

Hasten, hasten to save the mother

Although she be

of your child.

her from the horrid adulterer

;

lost as a wife, rescue

and may the Lord, who

watches over the home and the family, guide the bullet

and direct the stroke.

who would

And when

she

not reckon the salvation

is

of

delivered,

that

young

mother cheaply purchased by the adulterer's blood

The death

Key was

of

a cheap sacrifice to save one

mother from the horrible prisoner's wife

?

fate

which hung over this

and the mother of

his child.

Mr. Stanton here reviewed the celebrated " Manning case " and the authorities upon the question of adultery as a justification for homicide.

FAMOUS LEGAL ARGUMENTS. There were four epochs

went unpunished pensation,

it

;

by the law

was

in

which

justified

of Solon,

I9

.

killing in

such cases

under the Jewish

by those

of the

dis-

Roman

Empire, and by the Gothic institutions which have given shape to our own.

mon

From

King Charles no word

II. to

law,

no word imputing

is

the time of

Edward

to be found in the

com-

guilt to the slayer of the

violator of the chastity of his wife.

This .right to

The age

kill

was never denied

of Charles

till

now.

was an age of adultery and gross

corruption the place was ;

filled

with harlots and thronged

with adulterers and adulteresses; the judges were the panderers, partakers and protectors of the corruptions of the age, and the

band to be a fined

same court which adjudged the hus-

felon for slaying the adulterer in his bed,

and sent jurors to prison

accordance with

its

for refusing to find in

instructions.

It

was the same

court which hunted Quakers, Catholics and Nonconformists to death and sent to the pillory and prison

John Bunyan

for preaching the gospel.

This was the state of the laws and

social life at the

time the principle was introduced into the

law of England, that to crime.

And when

kill

common

an adulterer in the act

society in this district

is

is

a

reduced to

the same condition, and when the government offices are filled

by open and avowed

wife's purity

and family chastity

when the become a jest,

adulterers, shall

FAMOUS LEGAL ARGUMENTS.

20 then

it

common seat

;

be time to introduce here a principle of

will

law never before heard from the judgment

then

it

will

be necessary for the court to extend

the shield of law over

attorneys to save their lives

its

From the harids of the husbands whose wives they have violated,

whose homes they have destroyed, and whose

families they have I

sion or rule of the of the wife

had

social life that

rule

made

desolate.

claim, then, on this proposition, that the expres-

is

its

do

common

law

regard to the. consent

in

origin in a state of

manners and of and that

not exist in this country,

not applicable here.

founded on the prin-

It is

ciple that the wife's consent

can qualify the degree of

the adulterer's guilt, and determines the husband to be a criminal.

In American society, there

is

a freedom

from restraint and supervision that exists nowhere

and

this results

from various causes: husbands, fathers

and brothers devote a large share of

life

else,

and to the duties

of time to the cares

of providing for the family,

during which time the female portion of the family are left

to themselves without protection.

The

frequent

'changes of habitation and the equality of our social 'c6nditi6n lead to a frankness quires, for the sanctity of the

of-

intercourse which re-

home and

the security of

the marriage bed, a rigorous personal responsibility to

the death.

The

peculiar conditions of society in this

district are also to

be noted before any principle like

that of social law can be introduced.

FAMOUS LEGAL ARGUMENTS. Familes come hither from

21

parts of the

Union to

remain for a shorter or longer period of time.

To enjoy

any

social life here,

may

out those with Besides,

here.

which,

in

long established

enable individuals to choose and pick

whom it

the intercourse must be frank,

The time

without suspicion.

communities,

all

they

may

associate,

is

not had

has been the custom here for officers

of the government, and those in the public employ-

ment, to throw open their doors with a wide hospitality that exists nowhere

and attraction population that

Washington

in it

This forms a peculiar feature

else.

society,

and by the

attracts here and the stimulus thus

given to business, the wealth and prosperity of the city

and

district are

made

are to be

sues his closed. tality

lust,

promoted. the

made

if

these social occasions pur-

then the doors of families must be swiftly

No man would

occasions,

But

means by which the adulterer

be willing to have his hospi-

the means of an assignation, or the social

when he

desires

to have his friend's

and

neighbor's pleasure converted into opportunities for

corrupting the innocent wife of his friend. I

repeat, then, that the doctrine

cution

rests, is

on which the prose-

founded on the Manning

case,

copied

by Hale and Foster and Blackstone. But it is also to be observed that, from the day in which Manning's case was decided to the present hour,

it

followed by the conviction of a husband

No husband

has not been in

England.

since then has been punished as a felon

FAMOUS LEGAL ARGUMENTS.

22

In three cases the

for taking the life of an adulterer.

doctrine of that case has been declared from the bench,

but only by two judges

the cases of the

:

Queen

against

In the one there was no

Fisher, and another case.

adultery of the wife; in the other, no marriage, and in

the third the crime was of a totally different nature. As, from the time of Alfred to the time of Charles the Second, there

no evidence that a husband was

is

regarded as a felon

common

in

law for slaying an

adulterer, or from the time of Charles the Second to

the present hour that principle has never been enforced

The

by the punishment

of

any man

in

England.

however, which was cited from Hill's

case,

Reports, has some analogy to this case. adulterer

rescue his wife, and

it

common

law on this subject

of Mercer, Myers, Green,

where,

in

to

was held that the murderer

could not set up the plea of self-defense.

can

There the

who was endeavoring

slew a husband

shown

The Ameriin

the cases

Stump, and the case

of Jarboe,

is

each instance, the slayer of the seducer was

acquitted. I

also refer

man's case

in

your honor to Smith's case and SherPhiladelphia, Boyer's case in Virginia,

and Ryan's case reported Cases

;

where, then,

I

ask,

Vol.

in

2,

Wheeler's Criminal

does the adulterous doctrine

of Charles the Second prevail in

the stars and stripes wave

;

America?

Not where

not even where the royal

;

FAMOUS LEGAL ARGUMENTS. banner of England

floats

;

for

it

23

was not long since

in

Canada, a husband had followed his wife's seducer from city to city

till

he found and slew him

;

and there the

doctrine of Charles the Second was repelled and the

man

instantly acquitted.

By by

the American law the husband

his wife

;

his

degree if

arm

The

ever over her.

is

is

always present

always by her side

;

his

wing

consent of the wife cannot

in

affect the question of the adulterer's guilt

he be

slain in the act

by the husband, then

fiable

homicide.

what

constitutes the act.

I

will pass, then, to I

it is

;

is

any and

justi-

the question of

understood one of the

learned counsel for the prosecution to claim, in accord-

ance with the very loose language of Baron Parke, that it is

necessary for the husband to have ocular demon-

stration. It

does credit to the frankness as well as to the good

sense of the counsel not to claim that doctrine, but that

the doctrine of Manning's case.

is

The

wife could

not only consent to the act, but the husband,

came

in

in

adulterer until he

and then felon's

if

if

he

the dark, could not lay his hands on the lit

the candle and saw his shame

he slew the adulterer he must have the

branding on his hand.

The

object was to erect

before the husband the gallows and branding iron, so that the courtiers and corrupt

men

of that age

might

pursue with impunity the wives and daughters of the people

;

hence they demanded not only that the wives

FAMOUS LEGAL ARGUMENTS.

24

should consent, but that the husband should see his

As

shame.

late as within the last

few years, Baron

Parke, sitting in the judgment seat of England, said that the husband must have ocular inspection of the

What

act. is

is

the act, and

what

is

necessary?

It

the fact of adultery that constitutes the guilt of the

The

individual and the justification of' the husband. fact

is

to be manifested according to the rules of evi-

dence that apply

My

in

regard to other facts.

last ^proposition

is,

that the wife's consent can-

not shield the adulterer, she being incapable by law of

consenting to any infraction of her husband's marital rights,

and

that, in the absence of consent

and conniv-

ance on his part, every violation of the wife's chastity is,

the contemplation of law, forcible and against his

in

will,

and may be treated by him

and force on

as

an act of violence

his wife's person.

The law does not look to the degree of force movement and being an act ;

looks to the forcible force,

it

clear

is

ciples of law.

always

wing

;

and undoubted on the highest prin-

By

the contemplation of law, the wife

the husband's presence, always under his

in

and any movement against her person

ment against

We

of

follows that the right of the husband to resist

that force

is

;

it

his right,

and

may

is

a

move-

be resisted as such.

place the ground of defense here on the

ground and

liqjited

same

by the same means as the right of

— FAMOUS LEGAL ARGUMENTS. personal defense. slay the assailant

the mortal blow to wait

a

man be

assailed, his

not limited to the

is

is

his life

till

If

about to be given is

him

in

moment when he

is

not bound

man

The theory

daily,

by a moral

— no,

of

living in a constant

state of adultery with the prisoner's wife, a

was

taken,;

the right of self-defense, and

that there was a

is,

to

foul purpose plainly

the assailant on the spot.

in slaying

our case

;

power

on the very point of being

but any movement towards the indicated justifies

25

man who

by an immoral power

enormous, monstrous, and altogether unparalleled

in

the history of American society or in the history of the family of man, a power over the being of this

woman — calling

her from her husband's house, drawing

her from the side of her child, and dragging her day

by day through the streets in order that he might The husband beholds him in the very gratify his lust. act of withdrawing his wife from his roof, from his

presence, from his arm, from his wing, from his nest:;

meets him

in

that act and slays him, and

we say

that

the right to slay him stands on the firmest principles

Off

self-defense.

have endeavored, as

I

principles of social law

defense will

is

briefly as

could, to explain the

and jurisprudence on which the

planted, and

not be

I

I

trust that

on examination

it

found to be any visionary ground of

defense, or any such mere theory as was apprehended

by

my

learned friend

who opened

the argument.

He

FAMOUS LEGAL ARGUMENTS.

26

/'

3ays that society could not exist on such principles,

because this was the exercise of the right of private

judgment

and

;

if it

was to be established

as a principle,

the land would be a scene of blood, as the punishment of adultery

would be followed by the punishment

Now,

other crimes.

if

were

it

be a scene of blood had

it

so, if this

of

land were to

not better run in torrents

through the streets than that the homes of men should be destroyed by the adulterer at Neither your Honor nor

so.

any such appalling crime that It

is

like

is

will

But

?

I will

adultery

American

usually a stranger to

not

be frightened by

Thank God,

picture.

is

it

is

a

society.

but rarely in our history that some great event this

occurs to startle society and lead

-examination of the principles on which

That has been the

case,

and should

it is

it

it

to the

founded.

lead to the

examination of the principles of law on which homes

and family that

should

rest,

home and

it

result

planting around

in

family the safeguards of the law, in

breaking through the bonds by which the adulterous court of Charles the Second undertook to bind the

arm

of the husband, then

some good

that great evil that has been produced It is

not

my

purpose to pursue

reference to the other points.

my

colleague.

I

I

by

grow out of this event.

this discussion

in

them

to

shall leave

thank your Honor for the patience

with which you have heard question.

I

will

me

in

the discussion of this

have endeavored to discuss

it

on principles

FAMOUS LEGAL ARGUMENTS. which

I

2^

a man, as a father, and as a hus-

believe, as

band, to be essential to the peace and security of your

home and

mine.

I

principles which are

have endeavored to discuss essential to the peace

perity of the society in which

well as yours as

;

and

I

hope

that,

my home

is

on

planted as

by the blessing

of

has been your Honor's good fortune to lay

it

it

and pros-

God,

down

the law which secures the family, in one aspect, from

the seducer of the

sister

;

you may

also plant on the

best and surest foundations the principles of law which

secure the peace of the home, the security of the family,

and the

been

in

relations of

husband and

wife,

which have

the most horrid manner violated in this case. his seat he was greeted with an outburst which was quelled with difficulty.

As counsel resumed of applause

DANIEL WEBSTER. ARGUMENT IN THE TRIAL OF JOHN FRANCIS KNAPP FOR THE MURDER OF CAPTAIN JOSEPH WHITE, AT SALEM, This

is

one

MASS., APRIL, I83O.

most celebrated murder

of the

trials in

history and by far the most important one in which

our Mr.

Webster was engaged.

He the

appeared as counsel for the prosecution and assisted in

trial.

He

spoke as follows:

am little accustomed, gentlemen, to the part which am now attempting to perform. Hardly more than I

I

once or twice has

it

happened

to

on the side

government

in

of the

tion whatever in

;

and never,

any case affecting

But

I

to be concerned

any criminal prosecuthe present occasion,

until

life.

much

very

me

regret that

it

should have been

thought necessary to suggest to you that

I

am

brought

here to " hurry you against the law and beyond the evidence."

I

hope

I

have too much regard for

and too much respect either

;

and were

I

to

for

my own character

make such attempt,

that in this court nothing can

law

;

and that gentlemen,

are, are not,

evidence.

by any power,

Though

this occasion,

I

I

I

am

sure

be carried against the

intelligent

and

to be hurried

you

just as

beyond the

could well have wished to shun

have not

professional assistance

justice,

to attempt

felt at liberty

when

it is

to withhold

supposed that

I

my

may

;

FAMOUS LEGAL ARGUMENTS. be

some degree

in

useful in investigating and discover-

ing the truth respecting der.

29

most extraordinary mur-

this

has seemed to be a duty incumbent on me, as

It

on every

my best

do

citizen, to

and

my

utmost to bring

to Hght the perpetrators of this crime.

prisoner at the bar, as an individual,

Against the

cannot have the

I

would not do him the smallest

slightest prejudice.

I

injury or injustice.

But

I

do not

affect to

be

indiffer-

ent to the discovery and the punishment of this deep guilt.

I.

great "soever

it

may

be,

which

how

the opprobrium,

cheerfully share in is

cast

on those who

and manifest an anxious concern that

all

feel

who had

a

part in planning, or a hand in executing this deed of

midnight assassination,

enormous crime

their

Gentlemen,

some

it

respects

may be brought

answer

for

at the bar of justice.

a most

is

to

extraordinary crime.

In

has hardly a precedent anywhere

it

certainly none in our

New

England

This

history.

bloody drama exhibited no suddenly excited, ungov-

The

ernable rage.

any

lion-like

actors in

it

were not surprised by

temptation springing upon their virtue

and overcoming

it,

before resistance could begin, nor

did they do the deed to glut savage vengeance, or satiate long-settled •

calculating,

and

salary,

money

and deadly hate.

money making murder. not revenge;"

against

life

of silver against so

;

It

It It

all

cool,

"hire

was the weighing of

the counting out of so

many ounces

was a

was

of blood.

many

pieces

FAMOUS LEGAL ARGUMENTS.

30

An own

aged man, without an enemy

house, and in his

own

bed,

is

the world,

in

made

in his

the victim of

a butcherly murder for mere pay.

Truly, here

new

Who

lesson

and poets.

for painters

as

has been exhibited,

it

last to

have been looked

New England

for, in

ever shall

he

if

will

bosom

the very

him not give

society, let

visage of Moloch, the

a

show where such example was

hereafter draw the portrait of murder, it

is

of our

the grim

it

brow knitted by revenge, the

face

black with settled hate, and the bloodshot eye emitting livid fires of malice.

The deed was executed with

a degree of self-posses-

sion and steadiness equal to the wickedness with which it

The

was planned.

circumstances

now

evidence spread out the whole scene before

clearly in us.

Deep

sleep had fallen on the destined victim, and on

beneath his roof.

was sweet, the

him

A healthful old

to

whom

all

sleep

sound slumbers of the night held

first

in their soft

man

The

and strong embrace.

enters through the

assassin

window already prepared, into an With noiseless foot he paces

unoccupied apartment. the lonely

hall, half lighted

the ascent of the

chamber.

Of

this,

tinued pressure,

stairs,

he moves the lock by

till it

turns on

and he enters and beholds

room

is

by the moon

;

he winds up

and reaches the door of the

its

soft

and con-

hinges without noise,

his victim before him.

uncommonly open

The

to the admission of light;

the face of the innocent sleeper

is

turned from the

1!

!

FAMOUS LEGAL ARGUMENTS.

3

murderer, and the beams of the moon, resting on the

gray locks of his aged temple, show him where to

The

strike.

fatal

blow

is

given, and the victim passes

without a struggle or a motion from the repose of sleep to the repose of death

pose to make sure work

though

;

obvious that

is

it

the blow of the bludgeon.

arm, that he replaces finish

He

it

may

not

has been destroyed by

life

He

even

raises the

in his

aim

at the heart,

again over the wounds of the poniard

it,

and ascertains that

accomplished.

The deed

retraces his steps to the as he came

No

and he applies the dagger,

in,

is

it

secret

To

He

retreats,

window, passes out through

and escapes.

is !

his

own and

it is

He

it

has done the murder.

The

safe

gentlemen, that was a dreadful mistake.

a secret can be safe nowhere.

God

!

and

beats no longer!

done.

eye has seen him, no ear has heard him.

Ah

aged

the picture, he explores the wrist for the pulse

feels for

It is

fail

the assassin's pur-

It is

!

The whole

Such

creation of

has neither nook nor corner where the guilty can

bestow

it

and say

it is

which pierces through

safe. all

Not

to speak of that eye

disguises,

and beholds every-

thing as in the splendor of noon, such secrets of guilt are never safe from detection, even is,

generally speaking, that "

it

is,

murder

by men. will out."

True

it

True

that Providence has so ordained, and doth so

govern things, that those who break the great law of

Heaven by shedding man's blood seldom succeed

in

FAMOUS LEGAL ARGUMENTS.

32

avoiding discovery.

Especially

covery must come, and

in a

case like this, dis-

come, sooner or

will

A

later.

thousand eyes turn at once to explore every man, every thing, every circumstance connected with the time and place; a thousand ears catch every whisper; a thousand excited minds intensely dwell on the scene,

shedding

all

and ready to kindle the

their light,

slightest

circumstance into a blaze of discovery .^_ Meantime the guilty soul cannot keep itself

or rather

;

feels

it

science to be true to possession, and •

human which

secret.

is

made

It finds itself

devouring

assistance, either

and

it,

It is false

to

under

its

guilty

to do with

it.

The

It labors

itself.

for the residence of

it

such

preyed on by a torment

dares not acknowledge to

it

vulture

own

knows not what

heart was not

an inhabitant.

its

an irresistible impulse of con-

God

A

or man.

can ask no sympathy or

from heaven or earth.

The

secret

which the murderer possesses soon comes to possess

him

;

and, like the evil spirits of which

we

read,

overcomes him and leads him whithersoever

He

feels

it

demanding it

become

down

it

will.

beating at his heart, rising to his throat, and

He

disclosure.

in his face,

workings

it

in

reads

thinks the whole world sees

in his eyes,

it

and almost hears

the very silence of his thoughts.

his master.

his courage,

It it

betrays his discretion,

conquers his prudence.

it

It

its

has

breaks

When

suspicions from without begin to embarrass him, and

the net of circumstances to entangle him, the fatal

;

FAMOUS LEGAL ARGUMENTS. secret struggles with forth.

It

there

is

greater violence

still

must be confessed,

no refuge from

is

suicide

confession.

33 to

burst

be confessed

will

it

suicide,

confessiori biit

and

T

seems to me, gemlemen, that there are appear-

It

ances of another feeling, of a very different nature and character; not very extensive there

is

human

too

much evidence

nature, that

of

Ordinary vice

tions.

its

some persohs

of crime in their admiration of is

would hope, but

I

still

Such

existence.

is

lose their abhorrence

magnificent exhibi-

its

reprobated by them, but

extraordinary guilt, exquisite wickedness, the high

and poetry

flights

crime, seize on the imagination

of

and lead them to forget the depths admiration of the excellence of the unequaled

of the guilt in

the performance, or

There are

atrocity of the purpose.

those in our day

who have made

infirmity of our nature, and

injury to the cause of

by means of

I

it

done

They have

good morals.

not only the taste, but

great use of this infinite

affected

fear also the principles of the

young, the heedless, and the imaginative, by the exhibition of interesting

and beautiful monsters.

by

render depravity attractive; sometimes of

its

gances

manners, and sometimes by ;

and study to show

off

very extrava-

its

crime under

advantages of cleverness and dexterity. an extraordinary murder, but

this

is

We

are not to lose ourselves in

all

the

Gentlemen,

it is still

wonder

They

the polish

a murder.

at its origin, or

;

FAMOUS LEGAL ARGUMENTS.

34 gazing on

in

its

We are to

cool and skillful execution.

detect and to punish

it

and while we proceed with

;

caution against the prisoner, and are to be sure that

we do not

visit

on

head the offense of others, we

his

are yet to consider that

we

are dealing with a case of

most atrocious crime, which has not the cumstance about der

slightest cir-

to soften its enormity.

It is

mur-

deliberate, conceited, malicious murder.

;

The that that

it

learned counsel of the prisoner has said truly,

it

your individual duty to judge the prisoner;

is

it is

your individual duty to determine

innocence

his guilt or

and that you are to weigh the testimony

;

with candor and

But much

fairness.

at the

same time

would seem to have

has been said which, although

it

no

cannot be passed over

distinct bearing

on the

trial,

without some notice.

A as

tone of complaint so peculiar has been indulged,

would almost lead us to doubt whether the prisoner

at the bar or the

on

case

manner ;

testimony

;

of

against him.

combinations to

driven

hear of getting up a

motion trains of machinery; of

of private prosecutors

persecuted,

We

of prosecution.

of setting in

to

;

that the prisoner his

trial;

who happen

much

to be

full

overwhelm the prisoner

In the course of

never heard before so counsel

now

of this prosecution are

Great pains have been taken to complain of

trial.

the

manager

said

hunted,

everybody

that

my

is

whole

life I

is

have

about the particular

employed

;

as

if

it

were

FAMOUS LEGAL ARGUMENTS.

35

extraordinary that other counsels than the usual

government should

cers of the

ment

of a case

offi-

assist in the

manage-

on the part of the government.

In one

of the last criminal trials in this country, that of Jack-

man

for the "

Goodridge robbery,"

so-called, I

remem-

ber that the learned head of the Suffolk bar, Mr. Prescott,

came down

government. nor

aid of the

The

as

far

carping at his

counsel

were

they

as

in this case

when great and Rewards were offered

made

is

of

that

and temptations held

and every other means taken

lance could suggest.

The

fered their zeal to lead

them

in

instead

committed

the case to which

offenders, that ingenuity or the

manner

answering his

able

secret offenses are in

in

Are not rewards always

out to obtain testimony. oflered

alluded,

the

of

prisoner

the

Complaint

presence.

rewards were offered

for

themselves with

that case contented

at the

officers

This was regarded as neither strange

improper.

arguments

in

?

have

I

to discover the

most persevering

vigi-

learned counsel have sufinto a strain of complaint

which the perpetrators of

this

crime

were detected, almost indicating that they regard

it is

a positive injury to them to have found out their guilt. Since no fess

it,

man

witnessed

it,

since they do not

attempts to discover

it

now

con-

are half esteemed as

officious intermeddling and impertinent inquiry. It is said, that

was appointed.

here even a committee of vigilance

This

is

a subject of reiterated remark.

FAMOUS LEGAL ARGUMENTS.

36

This committee are pointed at as though they had

been officiously intermeddling with the administration

They

of justice.

months

"

we do

in

still

are said to have been " laboring for

Gentlemen, what must

against the prisoner.

such a case

Are people

?

through fear of overdoing?

Is

it

come

discover the guilty, without

is

a combination to overwhelm innocence

its

moral sense

all

lifted,

being said that there

to,

lost

to this,

hand cannot be

that an effort cannot be made, a

community

dumb and

to be

?

Has

Certainly, a

?

the

com-

munity that would not be roused to action upon an occasion such as this was, a

community which should

not deny sleep to their eyes, and slumber to their eyelids, till

they had exhausted

detection,

must indeed be

all

means

lost to all

of discovery

and

moral sense, and

would scarcely deserve protection from the

laws.

The

learned counsel have: endeavored to persuade you, that there exists a prejudice against the persons accused of

They

would^ have you understand that

this

murder.

it is

not confined to this vicinity alone

the

Legislature

have

qaught

this

;

but that even spirit.

That

through the procurernent of the gentleman here styled private prosecutor,

who

is

a

member

of the Senate, a

special session of this court w^Sj appointed for the trial

of these offenders.

That the ordinary movements

the wheels of justice were devised. it

too,

of

slow for the purposes,

But does npt eyerybjody see and know, that

was a matter

of absolute necessity to

have a

special,

FAMOUS LEGAL ARGUMENTS. session of the court

have been

When

?

or

how

37

could the prison-

without a special session

?

In

ordinary arrangement of the courts, but one week

in a

ers

year

tried

for

the whole court to

trial

of all capital offenses a majority

allotted

is

county.

In the

of the court, at least, trial of

is

sit

this

in

required to be present.

In the

the present case alone, three weeks have already

been taken up. Without such special

session, then, three

years would not have been sufficient for the purpose.

Again,

it is

said that

it

was not thought

Francis Knapp, the prisoner at the bar, a till

of

making

PRINCIPAL

after the death of Richard Crowninshield, Jr.

the present indictment

mony was There the

no authority

is

is

an afterthought

got up " for the occasion. for this suggestion.

Knapps had not then been

The

officers of the

is

The

not

They .intended

case of

They could

who

not,

what course they should

to arraign

all

as

principals

should appear to have been principals, and

accessories

so.

government did not know what the

therefore, have determined

who

It

before the Grand Jury.

testimony would be against them.

pursue.

;

that

;

that " testi-

all

as

should appear to have been accessories.

All this could be

known only when

the evidence should

be produced. It is said, that "

ment cent."

laws are made, not for the punish-

of the guilty, but for the protection of the inno-

This

we hope they

is

not quite accurate, perhaps, but

will

if

so,

be so administered as to give that

FAMOUS LEGAL ARGUMENTS.

j8

would protect

They

cent. of

Gentlemen, Joseph White was inno-

?

God through

established ;

the law

are innocent who, having lived in the fear

the day, vvish to sleep

through the night,

quietly

whom

But who are the innocent

protection.

their

in

own

His peace

in

The law

beds.

is

who live quietly may sleep who do no harm may feel none. The

those

that

that they

gentlemen can think of none that are innocent except the prisoner at the bar, not yet convicted. conspirator to murder innocent

?

Are

proved

Is a

Crownin-

the

What is innocence? How deep stained with blood, how reckless in crime, how deep in depravity may it be, and yet retain innocence? The law is made, if we would speak with and the Knapps

shields

innocent?

by punishing

entire accuracy, to protect the innocent

the guilty. But there are those innocent out of a court, as well as in

;

innocent citizens not suspected of crime,

as well as innocent prisoners at the bar.

The

criminal law

vengeance.

It

every pain

does not punish that

it

evil as

of the

causes, every

and more deeply

still

every

hour

law

it

^nay

feels

is

its

true,

not offend

it

imposes,

But

evil.

it

It

uses seeks

by the example of punishment.

and only true main object.

strains the liberty of the

who do

inflict suf-

and regrets

of restraint

life it forfeits.

the means of preventing greater

deter from crime

This

not founded in a principle of

The humanity

fering.

to

is

may

It re-

few offenders, that the

many

enjoy their liberty.

takes

It

FAMOUS LEGAL ARGUMENTS. the

life

of the murderer, that other

once set free

all

ought to do so

and

at it

if it

could be

made be

the

jails

certain that no other

committed, because

punishes, not to satisfy any desire to

When

purpose

;

the safety of the innocent

Every

the

law has so far

guilty, therefore, are not punished, the

endangered.

it

pain, but

inflict

simply to prevent the repetition of crimes.

failed of its

not

persons accused of offences, and

offences would hereafter

far

may

murders

The law might open

be committed.

39

is

so

murder takes

unpunished

away something from the security of every man's life. Whenever a jury, through whimiscal and ill-founded scruples, suffers the guilty to escape, they

selves answerable for the

make them-

augmented danger

to the in-

nocent.

Gentlemen,

let

us

now come

Your first was Captain White

to the case.

inquiry, on the evidence, will be,

murdered

in

pursuance of a conspiracy, and was the

defendant one of inquiry

is,

this conspiracy

is

liable to

defendant

is

indicted as a principal.

be convicted as

you cannot convict him.

in

2.

principal?

If

itself

The

not guilty as

The indictment

tains three distinct classes of counts. is

the second

was he so connected with the murder

as that he

such,

If so,

?

In the

con-

first,

he

charged as having done the deed with his own hand.; the second, as an aider and abettor to

Crowninshield,

Jr.,

who

aider and abettor to

did the deed

;

in

Richard

the third, as an

some person unknown.

If

you

FAMOUS LEGAL ARGUMENTS.

40'

him guilty

believe

in

may

these counts, or in

be proper to say, as a preliminary remark,

two extraordinay circumstances attend-

that there are

ing this

of

you must convict him.

either of these ways; It

either

One

trial.

is,

that Richard Crowninshield,

the supposed immediate perpetrator of the since his arrest, has

committed

suicide.

He

Jr.,

murder, has gone

to answer before the tribunal of perfect infallibility.

The other

Knapp, the supposed

that Joseph

is,

nator and planner of the murder, having once full is,

made

a

disclosure of the facts under promise of indemnity,

nevertheless, not

his disclosure

and

Defuses to testify. state,

now

a witness.

promise of indemnity, he now

He

chooses to return to his original

and now stands answerable himself, when the

Your

decision

this defendant.

If

These circumstances

trial.

you should remember,

case.

Notwithstanding

his

time shall come for his fit

origi-

in

may

it is

your investigation of the

affect

more than the

life

of

he be not convicted as principal,

no one can be, nor can any one be convicted of a participation in the crime as accessory.

George Crowninshield

will

The Knapps and

be again on the community.

This shows the importance of the duty you have to perform, and serves to remind you of the case and wis-

dom

necessary to be exercised in

certainly these considerations er's guilt

any

clearer,

evidence against him.

its

performance. But

do not render the prison-

nor enhance the weight of the

FAMOUS LEGAL ARGUMENTS.

And

now, gentlemen,

examining

in

us begin at the beginning, and this

And

circumstantial evidence. think,

are

and

full

it is

assassins take

The

in

this

case

we

mainly

that offences of

Midnight

way.

The evidence

no witnesses.

a case of

is

of the facts

on has been somewhat sneeringly denominated,

relied

by the learned such

This

common

kind must be proved

this

what we know

these circumstances,

satisfactory.

depends upon them, and

this evidence, let

first

independent of disputed testimony.

4I

stuff as

rend this stuff

He

winds?

counsel, "circumstantial stuff," but

dreams are made ?

Why

letter

Why

stuff,

from Palmer

and try

at Belfast,

it

It shall its is

it is

does he not

does he not scatter

dismisses too summarily.

business to examine this

The

of.

to the

be

my

cohesion.

no more

that

than flimsy stuff?

The and

fabricated letters from

Knapp to

the committees

to Mr, White, are they nothing but stuff

The

circumstance, that the housekeeper was

at the time the

murder was committed, as

agreed she would be,

same

?

away was

it

that, too, a useless piece of the

is

stuff?

The

facts, that

the key of the chamber door was

taken out and secreted

;

that the

and unbolted, are these so posed of It is

window was unbarred

slightly

and so

easily dis-

?

necessary, gentlemen, to settle now, at the

mencement, the great question

com-

of a conspiracy.

If

FAMOUS LEGAL ARGUMENTS.

42

there was none, or the defendant was not a party, then

there

no evidence here to convict him.

is

a conspiracy, and he

is

If

there

was

proved to have been a party,

these two facts have a strong bearing on others, and

sel

take no distinct ground, as

to

themselves to

confine

They

speech.

But

was

may

still,

if

a conspirator,

shed

much

have already

said,

on

They choose hypothetical mode of

a

suppose there was a conspiracy,

say,

non seguitur, that the prisoner so.

I

admit or to deny.

this point, either to

it

The- defendant's coun-

the great points of inquiry.

all

is

if

and helped to plan the murder,

light

Be

guilty as principal.

there was a conspiracy, and

he

this

on the evidence which goes to

charge him with the execution of that plan.

We

mean

to

make

of the conspiracy

defendant was a party to

it;

and that the

;

and then to draw

all

just

inferences from these facts.

Let

me ask your

attention, then, in the

first

place to

those appearances, on the morning after the murder,

which have a tendency to show that

it

was done

suance of a preconcerted plan of operation

they?

A

man was found murdered

in his

in pur-

What

are

bed.

No

stranger had done the deed, no one unacquainted with

the house had done

it.

It

was apparent that some-

body within had opened, and somebody without had entered. cert

and

There had obviously and certainly been conco-operation.

The inmates

of the house

were not alarmed when the murder was perpetrated.

P'AMOUS LEGAL ARGUMENTS.

43

Assassin had entered without riot or any violence.

He

The house The window »was unbar-

had found the way prepared before him. had been previously opened. red from within, and

its

fastening unscrewed.

was a lock on the door of the chamber

White

slept,

away and were

but the key was gone.

secreted.

The

visible out doors,

in

There

which Mr.

had been taken

It

footsteps of the murderer

tending toward the window.

The plank by which he entered the window still remained. The road he pursued had been thus prepared for him. The victim was slain, and a murderer had escaped.

Everything indicated that somebody

within had operated with

somebody without.

Every-

thing proclaimed that some of the inmates, or some-

body having

access to the house, had had a hand in

the murder.

On

the face of the circumstances,

it

was

apparent, therefore, that this was premeditated, concerted murder; that there had been

commit If

the

a conspiracy to

Who, then, were the conspirators ? Knapps and the Crowninshields were not

it.

conspirators in this murder, then there of conspirators not yet discovered.

is

the

a whole set

Because, independ-

ent of the testimony of Palmer and Leighton, independent of

all

disputed evidence, we

know from uncon-

troverted facts, that this murder was, and must have

been, the result of concert and co-operation between

two or more.

We know

and deliberation

;

we

it

see,

was not done without plan that

whoever entered the

FAMOUS LEGAL ARGUMENTS.

44

house, to strike the blow, was favored and aided

someone who had been previously out suspicion, and

Knapps and

by

in the house, with-

who had prepared

the way.

the

If

the Crowninshields, then, were not the

Joseph Knapp had a motive

who were?

conspirators,

to desire the death of Mr. White, and that motive has

He was

connected by marriage with the

family of Mr. White.

His wife was the daughter of

been shown.

who was the only child of a sister of the The deceased was more than eighty years

Mrs. Beckford,

deceased. old,

and had no children. His only heirs were nephews

and

nieces.

He was supposed

which would have descended, by law, to

large fortune, his several

to be possessed of a very

nephews and nieces

there was a

will,

in

equal shares

then according to the

had two branches of

heirs,

Henry White, and

of Mrs. Beckford,

branches, according to the

or, if

;

But as he

will.

the children of his brother,

common

each of these

idea,

would have

shared one-half of his property.

This popular idea

is

not legally correct, but

common, and very probably was ties.

According to

this idea,

White's death without a to half of his ried

will,

is

entertained by the par-

Mrs. Beckford, on Mr.

would have been entitled

ample fortune; and Joseph Knapp mar-

one of her three children.

There was a

will,

this will gives the bulk of the property to others

we

it

learn from

;

and and

Palmer that one part of the design was

to destroy the will before the murder was committed.

FAMOUS LEGAL ARGUMENTS. There had been a previous

was more, or believed

will,

and that previous

So

and destroying the

last will,

testator at the

will

to have been more, favorable

than the other to the Beckford family. destroying the

4$

same time,

either the

that, by-

life

of the

and more

first

favorable will would be set up, or the deceased would

have no

more

will,

which would

favorable.

ceeded

obtaining and

in

be, as

was supposed,

destroying

the

though they accomplished the murder, that found

still

But the conspirators not having

in existence

and

safe,

and that

the mass of the property to others,

it

suc-

last

will,

will

being

bequeathing

will

seems at the time

impossible for Joseph Knapp, as for anyone

else, in-

deed, but the principal devisee, to have any motive

which should lead to the murder. locks the whole mystery tions

of the

is

the knowledge

conspirators

derived from Palmer, and

The key which

to sell it

the

explains

much

This

will.

all.

motive which actuated those, against

un-

of the inten-

It

is

shows the

whom

there

is

evidence, but who, without the knowledge of

this intention,

intention

is

do not seem to have had a motive.

proved, as I have said, by Palmer and ;

congruous with in all facts

the rest of the case,

it

it is

so

agrees so well

and circumstances, that no man could well

withhold his still less

all

This

belief,

though the

facts

were stated by a

credible witness.

When we

look back, then, to the state of things im-

mediately on the discovery of the murder, we see that

FAMOUS LEGAL ARGUMENTS.

46

suspicion would naturally turn at once, not to the heirs-

by the

at-law, but to those principally benefited

will.

They, and they alone, would be supposed or seem to have a

direct object for wishing

Mr. White's

to be

life

terminated.

The

counsel say that they might safely admit that

Richard Crowninshield,

was the perpetrator

Jr.,

of this

murder.

But how could they safely admit that admitted,

everything else would

should Richard Crowninshield,

He was

What

Crowninshield,

could Jr.,

be

killed

who

one's procurement,

his

nor was he his

;

motive?

Richard

If

Mr. White, he did

is

shown

it

at

some-

And

this principally It is

had any

to have

intercourse with Richard Crowninshield,

prisoner at the bar?

Mr. White?

kill

himself had a motive.

who, having any motive,

Knapp, and

were

For why

follow.

Jr.,

not his heir, nor his devisee

enemy.

If that

?

Jr.,

but Joseph

through the agency of the

the infirmity, the distressing

cannot

difficulty of the prisoner's case, that his counsel

and dare not admit what they yet cannot disprove, and

what

all

evidence,

He who

must

believe.

that

Richard Crowninshield,

immediate murderer, cannot

Knapps were sel,

admit

doubt

Jr.,

that

conspirators in that murder.

therefore, are wrong,

safely

believes,

this.

I

on

both the

The coun-

think, in saying they

The admission

so connected a fact would render

might

of so important it

this

was the

and

impossible to con-

FAMOUS LEGAL ARGUMENTS.

4/

tend further against the proof of the entire conspiracy, as

we

As

state far

it.

back as January

this discussion began.

Mr. Webster here went into a minute discussion of the evidence in the case to prove a conspiracy. I

shall

now proceed on

the supposition, that

it

is

proved that there was a conspiracy to murder Mr. White, and that the prisoner was a party to

The second and

the material inquiry

is,

it.

was the

pris-

oner present at the murder, aiding and abetting therein

This leads to the legal question does the law mean, when

in

says,

it

that,

in

?

What

the case.

order to

charge him as a principal, " he must be present aiding

and abetting

in the

murder ?" " It

In the language of the late Chief Justice,

is

not required that the abettor shall be actually upon the spot

when the murder

sight of the

to

ill

committed, or even

more immediate perpetrator

make him

operating

is

a principal.

If

in

of the victim,

he be at a distance, co-

the act, by watching to prevent

relief,

or

to give an alarm, or to assist his confederate in escape,

having knowledge of the purpose and object of the assassin, this in the

is

being present, aid-

make him

a principal in the

eye of the law

ing and abetting, so as to

murder." " If he be at a distance co-operating."

distance to be measured by feet or rods

This ;

if

is

not a

the intent

to lend aid combine with a knowledge that the

murder

FAMOUS LEGAL ARGUMENTS.

48 is

be committed, and the person so intending be so

to

situate that he can

by any

any manner, then he

He is

is

possibility lend this aid in

present in legal contemplation.

need not lend any actual aid

;

to be ready to assist

assisting.

There are two tween them

is

Murder

I.

sorts of

of essential

in

an affray,

expected provocation. deliberate,

importance to bear

mind:

in

upon sudden and un-

or

Murder

2.

predetermined

Under the

crime.

murder; the distinction be-

with a

secretly,

intention

to

commit the

the question usually

first class,

whether the offence be murder or manslaughter,

who commits

person it

is

often

Under

is,

the

in

the second

class,

a question whether others than he

who

the deed.

actually did the deed were present, aiding and assisting therein.

there

is

Offences of this kind ordinarily happen

when

nobody present except those who go on the

same design.

If

a riot should happen in

the court

kill another, this may be murmay not, according to the intentions with which

house, and one should der, or it

it

was done

;

which

is

always matter of fact to be

lected from the circumstances secret murders, premeditated

at

the

is

a person be present,

;

knowing

is

a proof of his intent to aid and abet

he there-?

there can a

murder

His being

to be done, of his concurring in the act.

there is

if

in

and determined on, there

can be no doubt of the murderous intention

be no doubt,

col-

But

time.

;

else

why

FAMOUS LEGAL ARGUMENTS.

49

has been contended, that proof must be given

It

that the person accused did

actually afford aid, did

lend a hand in the murder itself; -and without this proof, although he

sumed

A man ;

is

he

may from

what was going on.

Such an idea shocks

!

all

it

;

he has assisted

time, the place, and means, and he

and

at the time,

and yet

might have been there, not rence, but from curiosity

no answer.

It

decorous terms.

man

Preposter-

common

sense.

Is

it

it

is

arranging the

in

found

is

and concur-

Such an argument deserves difficult to

give

it

one, in

not to be taken for granted, that a

seeks to accomplish his is

own purposes present at

?

its

When

assist,

or there to prevent?

there from mere " curiosity "

!

!

The

Is

?

He may

be

Curiosity to witness

the success of the execution of his

der

he

execution,

he there to forward or to tlAvart his own design

he there to

the

in

suggested that he

for co-operation

!

would be

has planned a murder, and is

;

found to be a conspirator to commit a mur-

he has planned

place,

be pre-

silently there to hear the news, or

curiosity to see

ous, absurd

der

may

be near by, he

to be there for an innocent purpose

have crept

mere

may

own

plan of mur-

very walls of a court house ought not to

stand, the ploughshare should run through the ground it

stands on, where such an argument could find tol-

eration.

No is

doubt the law

assisting,

if

is,

that

being ready to assist

the party has the power to

assist, in

case

FAMOUS LEGAL ARGUMENTS.

50

It is so stated

of need.

A

" If

authority.

by

who

Foster,

a high

is

happeneth to be present at a mur-

and taketh no part

der, for instance,

deavoreth to prevent

it,

in

nor en-

it,

nor apprehendeth the mur-

derer, nor leveyeth hue and cry after him, this strange

though highly

criminal, will not of itself

behavior of

his,

render him

either principal or accessory."

amounting

fact

"

But

prosecution of some unlawful purpose, though

but a bare trespass, to which

A

in

had consented, and he had gone ance,

if

need were, for carrying

would have amounted

to

murder

the case

in it

in

in

were

it

stated

order to give

assist-

into execution, this

him, and

every

in

" If

the act

prosecution of the original purpose

which was unlawful, the whole party in the guilt of

a in

last

person present and joining with him.

was committed

if

murder should be committed

to

will

him who gave the blow.

be involved

For

in

com-

binations of this kind, the mortal stroke, though given

by one and

of

of the party,

considered in the eye of the law,

is

sound reason, too, as given by every individual

The person

present and abetting. stroke

is

actually giving the

no more than the hand or instrument by

which the others strike."

The

author, in speaking of being present,

means

actual presence; not actual in opposition to constructive, for the

law knows no such distinction.

one presence, and or supposed aid,

this

may

is

There

is

but

the situation from which aid,

be rendered.

1

FAMOUS LEGAL ARGUMENTS.

You

5

are to consider the defendant as one in the

league, in the combination to

commit the murder.

If

he was there by appointment with the perpetrators, he is

The concurrence

an abettor.

his being there

is

the conspiracy.

If

Richard Crowninshield,

pose whatsoever, made that Frank

Knapp

Knapp was an aid was, or

even

if it

Now

sort

it

when the

give an alarm

if

any pur-

should stand as backer, then Frank

no matter what the

;

was, or degree, be

it

were to judge of the hour when

go, or to see

for

a condition of the agreement,

it

aider and abettor

what

of the perpetrator in

proved by the previous evidence of

lights

ever so it

little

;

was best to

were extinguished, or to

anyone approached. Frank Knapp knew that the

as to the facts.

murder was that night to be committed he was one of ;

the conspirators, he

He had

knew

that day been to

the object, he

Wenham

knew the time.

to see Joseph,

and

probably to Danvers to see Richard Crowninshield, for

he kept

his

motions

secret.

He had

that day hired a

horse and chaise of Osburn, and attempted to conceal the purpose for which left

it

was used

;

he had intentionally

th& place and the frice blank on Osburn's books.

He went

to

Wenham by

the

way

of

Danvers

;

he had

been told the week before to hasten Dick he had seen ;

the Crowninshields several times within a few days

;

he

had a saddle horse the Saturday night before, he had seen Mrs. Beckford at Wenham, and knew she would not return that night.

She had not been away before

FAMOUS LEGAL ARGUMENTS.

52

for several weeks,

He

again. for the

and probably would not soon be

had just come from Wenham.

week

Every day,

previous, he had visited one or another of

these conspirators, save Sunday, and then probably he

saw them

in

town.

When

he saw Joseph on the 6th,

Joseph had prepared the house, and would naturally

him

tell

of

it

;

there were constant communications be-

tween them; daily and nightly

visitations

knowledge of these parties and

this

mind

leave a particle of doubt on- the

;

much

to6

transaction,

to

of anyone, that

Frank Knapp knew the murder was to be comrriitted

The hour was come, and he knew it if so and he was in Brown street, without explaining why he was there, can the jury for a moment doubt whether he this night.

;

was there to countenance, curiosity

how

or to learn

;

aid,

were earned by the perpetrator

The

or support

or for

;

the wages of sin and death ?

perpetrator would derive courage, and strength,

and confidence, from the knowledge that one associates

was near by.

If

he was

in

Brown

could have been there for no other purpose. for this purpose, then \z.w,

in

he

If there

the language of the

present, aiding and abetting in the murder.

Did the prisoner der

he was,

of his

street,

?

at the bar

Did he concur, or did he non-concur,

perpetrator was about to do? shield

countenance

him

protection

? ?

in

this

what the

Would he have

Would he have furnished Would he have pointed out

mur-

tried to

his cloak for

a safe

way

to

FAMOUS LEGAL ARGUMENTS. retreat

?

As you would answer

53

these questions, so

you

should answer the general question, whether he was there consenting to the murder, or whether he was there as a spectator only

?

One word more on this presence, called constructive What aid is to be rendered ? Where is the

presence. line to

be drawn, between acting, and omitting to act

Suppose he had been

in

the house, suppose he had

?

fol-

lowed the perpetrator to the chamber, what could he have done?

This was to be a murder by stealth;

was to be a

secret assassination.

pose to have an open combat their victim unawares,

But

if

he had been

and

in the

;

It

was not

What

and

ability

silently give the fatal blow.

chamber, no one can doubt

to

his retreat,

on the

first

;

if

if

there?

Could he have

alarm

?

needed.

Could

facilitated

Surely, this was a case

where there was more of safety with another

because of his

Could he have aided the

to fly ?

movements?

silence of his

;

render service,

service could he have rendered,

he have helped him

their pur-

they were to approach

that he would have been an abettor presence,

in

going alone than

where company would only embarrass.

Richard Crowninshield would prefer to go alone.

knew

his

errand too well.

collateral support.

him

He was

He

His nerves needed no not the

man

to take with

He would prefer to have He would not wish to be encumHe would prefer to have him presence.

a trembling companion..

his aid at a distance.

bered by his

it

FAMOUS LEGAL ARGUMENTS.

54

He would

out of the house.

Brown

in

prefer that he should be

But whether

street.

in

the chamber, in the

house, in the garden, or in the street, whatsoever aiding

in

actual presence

anything that

is

aid in

then, the aid

If,

his

act,

is

aid in the other.

him hope or confidence

in his

the same as though the person stood at

it is

elbow with

ready to

one case

be anywhere, so as to embolden the

perpetrator, to afford enterprise,

is

aiding in constructive presence;

is

his

sword drawn.

with the power to

His being there

act, is

what makes him

an abettor.

What are the facts in relation to Frank Knapp is proved to have been

this

presence?

a conspirator,

proved to have known that the deed was now to be done.

Is

concur It

in

not probable that he was

it

the murder?

the perpetrator. ;

Brown street

to

There were four conspirators.

was natural that some one

perpetrator

in

of

them should go with

Richard Crowninshield was to be the

he was to give the blow.

There

is

no

evidence of any casting of the parts for the others.

The defendant would probably be second part.

He was

tomed to the use

the

man

fond of exploits, he was accus-

of sword-canes

and

dirks.

was required, he was the man to give there

is

The ways.

whom

to take the

no evidence to the contrary

it.

If

any aid

At

least,

of this.

prisoner has attempted to prove an alibi in

In the

first

two by four young men with company, on the evening of

place,

he says he was

in

FAMOUS LEGAL ARGUMENTS. the murder, from seven o'clock

55

near ten o'clock.

till

This depends upon the certainty of the night.

In the

second place, by his family, from ten o'clock

the night.

These two

tion with each other. false

classes of proof

One may be

may both be

or they

;

shall

examine

this

cause, on a former

have I

it

more

come now

and the other

true or both be false.

trial,

it

I

made more impression on

my

carefully sifted and compared, in

have no connec-

true,

testimony with some attention, be-

the minds of the court than on

when

after-

This depends upon the certainty of the time of

wards.

mind.

it

will

think,

I

be found to

of plausibilty than reality.

adduced by

to speak of the testimony

the defendant to explain where he was after ten o'clock

on the night of the murder.

This comes chiefly from

members

his father

of the family

;

from

and brothers.

Mr. Webster here went into a minute discussion of the testimony, tending to show where Knapp was on the night of the murder.

Then, gentlemen, the general question occurs satisfactorily

proved, by

all

:

Is it

these facts and circum-

was

in

and about Brown

on the night of the murder?

Considering that

stances, that the defendant street

the murder was effected by a conspiracy

;

considering

that two of the conspirators have accounted for themselves on the night of the murder,

Brown account

street

;

and were not

in

considering that the prisoner does not

for himself, nor

show where he was

;

consider-

ing that Richard Crowninshield, the other coTispirator

FAMOUS LEGAL ARGUMENTS.

56

and the perpetrator, be elsewhere

is

not accounted

considering that

;

it is

nor shown to

for,

now

past

all

that two persons were seen lurking in and about

much

watched them

Brown

and ex-

street at different times, avoiding observation,

citing so

doubt

suspicion that the neighbors actually-

considering that,

;

if

these persons thus

lurking

in

Brown

derers,

it

remains to this day wholly unknown

street at that

hour were not the mur-

who

they were or what their business was.

By laid

much stress has been whether Brown street was a

the counsel for the prisoner,

upon the question,

place in which aid could be given, a place in which actual assistance could be rendered in this transaction.

own

This must be mainly decided by their

who

selected the place

;

opinion,

by what they thought

at the

the time, according to their plan of operation. If

it

was agreed that the prisoner should be there

to assist,

it is

enough.

If

they thought the place proper

for their purpose, according to their plan,

it is

sufficient.

Suppose we could prove expressly that they agreed that Frank should be there, and he

should think abetting, I

it is

;

it

is

there,

and you

not a well-chosen place for aiding and

must he be acquitted

think or you

place

was

?

No

!

It is

not what

think of the appropriateness of the

what they thought at

the

time.

If

the

prisoner was in

Brown

ment with the

perpetrator, for the purpose of giving

assistancffe,

if

street

by appointment and

assistance should be needed,

it

agree-

may safely

;

FAMOUS LEGAL ARGUMENTS.

57

be presumed that the place was suited to such ance as

If in

was supposed by the parties might chance to

it

become

requisite.

Brown

he there to

street,

aid,

was he there by appointment

favor, or to thwart

was

To concur,

?

?

Was

he there

or to oppose?

Did the perpetrator know he

?

there, there waiting

then

If so,

?

it

He was

he was there by appointment.

was waiting

half an hour; he

Was

were necessary?

aid

if

the murderer

for, or against,

To

assist-

for

follows that at the post

somebody.

This

proves appointment, arrangement, previous agreement

then to

it

follows that he

embolden the perpetrator

he were

was him

upon

It is

for aid,

Besides,

there.

if

much

is

enough.

aid, or that

If

he

then he was aiding and abet-

it

may

be well

aid there as

said, that

he had been

if

he could in

Essex

he had been standing even at the gate, or

the window.

power that was done by

and that

encourage,

enough that the conspirator desired to have

afford just as street, as

;

aid, to

such a situation as to afford

in

relied

ting.

at

was there to

It

to be

stealth.

was not an done

The

aid

;

it

act of

was a

power against

secret act, to be

was to be placed

tion secure from observation.

It

in a posi-

was important to the

security of both that he should be in a lonely place.

Now,

it is

obvious, that there are

which he might be I.

in

Brown

many

purposes for

street.

Richard Crowninshield might have been secreted

in the garden,

and waiting

for a signal.

FAMOUS LEGAL ARGUMENTS.

58

Or he might be making

2.

to the time of

Or

3.

in

Brown

him

as

to favor his escape.

5.

Or to see if the street was clear when he came out. Or to conceal the weapon or the clothes.

6.

To be

4.

ready for any unforseen contingency.

Richard Crowninshield lived retire If

street to advise

his entry into the house.

by the most

you

find

him

Gentlemen,

fairly

spiracy

I

He would

Danvers. street

is

that way.

you doubt why he was there

?

have gone through with the evidence

before you.

be drawn from doubt.

there, can

in

Brown

and have endeavored to state

in this case,

and

I

secret way.

it,

I

it

plainly

think there are conclusions to

the accuracy of which you cannot

think you cannot doubt that there was a con-

formed

murder, and

who

for the

purpose of committing this

the conspirators were.

That you cannot doubt that the Crowninshields and the

Knapps were the

parties in the conspiracy.

That you cannot doubt that the prisoner

knew

that the

murder was

to be

at the bar

done on the night of

the 6th of April.

That you cannot doubt that the murderers of Captain

White were the suspicious persons seen

Brown

street

in

and about

on that night.

That you cannot doubt that Richard Crowninshield was the perpetrator

of that crime.

That you cannot doubt that the prisoner was

in

Brown

street

on that night.

at the bar

FAMOUS LEGAL ARGUMENTS. If there,

then

59

must be by agreement,

it

And

nance, to aid the perpetrator.

if

to counte-

then he

so,

is

guilty as principal.

Gentlemen, your whole concern should be to do

your duty, and leave consequences to take care

You

themselves.

Your life,

verdict,

but then

will receive the

is

it

it is

true,

law from the court.

may endanger

to save others' lives.

the prisoner's the prisoner's

If

been shown and proved beyond

guilt has

able doubt, you will convict him.

doubts of

guilt

still

If

all

reason-

such reasonable

remain, you will acquit him.

are the judges of the whole case.

You owe

Doubtless we would

a plain straightforward one.

judge him

in

mercy.

You

Your duty

cannot presume to be wiser than the law.

all

You

a duty to

the public as well as to the prisoner at the bar.

is

of

Towards him,

the law inculcates no hostility

;

as an individual,

but towards him,

if

proved to be a murderer, the law, and the oaths you

have taken, and public

justice,

demand

that

you do

your duty.

With consciences

satisfied

with the discharge of duty,

no consequences can harm you.

we cannot

is

no

evil that

either face or fly from, but the conscious-

ness of duty disregarded. us ever.

There

It is

omnipresent

A

sense of duty pursues

like the Deity.

If

we

take

to ourselves the wings of the morning, and dwell in the

uttermost parts of the sea, duty performed, or duty violated,

is still

with us, for our happiness or our misery.

FAMOUS LEGAL ARGUMENTS.

6o If

we say

the darkness shall cover us, in the darkness

We

as in the light our obligations are yet with us.

cannot escape their power, nor

They

are with us in this

fly

life,

dose; and

in

which

yet farther onward,

lies

pain us wherever

Verdict

will

God

it

we

shall

by the consciousness

its

still

find our-

of

duty, to

has been violated, and to console

has given us grace to perform

it.

— Guilty.

Richard Crowninshield committed

Thus ended one

of the

George CrowninJohn Francis Knapp

suicide.

shield proved an alibi and was discharged. and Joseph J. Knapp, Jr., were executed. history.

be with us at

that scene of inconceivable solemnity,

selves surrounded

us so far as

from their presence.

most cold blooded murders

in our

WILLIAM PINKNEY. SPEECH IN THE DEFENSE OF JOHN HODGES FOR CONSTRUCTIVE TREASON REPORTED IN 2 wheeler's CRIM. CASES— TRIED AT BALTIMORE, MAY, 1815.

—

One

of

the most remarkable arguments in our history, and

forever abolished the idea that such an offense could exist

under our government. Mr. Pinkney addressed the court as follows

May

it

please your

prayer, for offense

it

Honor:

— There

excludes that which

—intention

;

and

is

has no right to instruct the jury as

No

case.

instance has occurred in

attempt to bind the jury of the court.

you true

err?

We

hanged and your judgment

if

this

is

and others

The

No

;

it

is

?

found

in the

by

if

it

is

The man

is

reversed. in this

mode

Home, Tooke

would not have been endured.

best security for the rights of individuals trial

civil

of an

a higher tribunal,

the celebrated cases of Hardy, and ?

were a

there for the party

In England, did their courts interfere in

in this

modern times

the consequence

is

no law

such a case by the opinion

What remedy may appeal to

but what

;

in

is

the essence of the

were otherwise, the court

it

if

:

jury.

institution consists in its exclusive power.

are here judges of law

is

to be

But the excellence of

and

fact,

The

this

jury

and are responsible

FAMOUS LEGAL ARGUMENTS.

62

own conyou may indeed

only to God, to the prisoner, and to their sciences.

After the case

is

closed

they ask

it,

or

advise the jury,

if

you think proper to

if

do so without being asked by them. the progress of th^

not submit to

shall

will,

on the contrary,

my

is

right to

do

so,

the jury that

it is

and

in a case of

blood

whose

life is in

tribunal.

on

I

in the It

my

will

trust

not law.

be placed

my duty to a man my respect for this

thus set

charge against

customary and afifirmed as

criminal intention

is

;

manner.

legal

an universal proposition, that

the essence of every species of

All indictments

of corrupt motives

and

overt acts laid are to

commence with an in

assertion

indictments for treason, the

show the manner

in

which the

wicked intention was carried into execution. speeches of Lord Erskine, to largely indebted for a correct ples of civil liberty find

It

dare not

I

shall not

I

I

pray your honor to suffer this cause to go

may be

crime.

I

it.

predicament which

direction,

as the prisoner's counsel.

it

tell

forego the exercise of in a

But to interrupt

way proposed would be

Suppose the court to give the

monstrous. I

the

trial in

whom

In the

the world

knowledge of the

is

so

princi-

and the law of treason, you

will

him perpetually contending, and contending with although the Crown had proved the facts

effect, that

charged,

it

had not shown the

evil design, the

corrupt

purpose, without which the facts are nothing.

Take the

case of a

man who,

in

time of war,

is

FAMOUS LEGAL ARGUMENTS.

63

charged with the defense of an important fortress or

when he

castle,

What more aid the

books

surrenders to an incompetent force.

will tell

is

own means,

traitor.

if

he did

if

if

The

with a view to benefit the

it

But

if

pusillanimity

arose from a false calculation of

it

or the force of the enemy, he

You may

?

to

he was bribed to this deser-

guilty of treason.

was the cause, or his

the delivery of this fortress

you, that

tion of his duty,

enemy, he

means could he have adopted

effectual

enemy than

is

not a

banish him with ignominy from the

ranks which he has disgraced, or try him by martial law as a

coward or a

fool

but he has committed no treason.

;

Suppose a powerful force to invade the country, to which resistance

is

They levy

hopeless.

they do not proclaim that they

comply with

neglect to

plunder and desolation. to

this order I

;

contributions

hang me

I

if

;

I

but they threaten

know they have

execute that threat, and

Now

will

the power

comply accordingly.

the paying of money, or the furnishing of pro-

visions,

is

an assistance

much more

;

it is

"giving aid and comfort"

effectually than the delivery of a few pris-

oners or a deserter.

because there

is

of the country.

Yet no man

will call this treason,

no evidence of hostility to the interests

The

authorities say

it is

not treason.

In Stone's case, the indictment charged as an overt act of adherence to the

enemy, that the prisoner con-

spired with others to collect intelligence within Eng-

land and Ireland, of the disposition of the King's sub-

FAMOUS LEGAL ARGUMENTS.

64

jects, in case of

an invasion of either country, and to

communicate such

intelligence

to

The

enemy.

the

tendency of parts of the correspondence which was given in evidence was to advise the

enemy

against an

invasion of England by representing the improbability of its being attended with

any success from the general

disposition of the people.

Now

it

was scarcely possible that such a

corre-

spondence could have been opened and maintained with other than corrupt motives.

Yet the counsel

were allowed to argue that the

were transmitted

with good intent

letters

in order to avert the danger of so

great a calamity as an invasion, and the court said the

jury were to judge from

all

the circumstances whether

the intelligence had been sent with that view.

My

client is charged, as

being an adherent sheltered

The

;

and

Stone was charged, with

like

him

is

by his motives from the imputation

district

admit that

df treason.

attorney confounds the indictment which

you are now trying with an indictment I

entitled to be

it

has been decided, that

if

for levying war.

a

man becomes

an integral part of the enemy's force, and acts with

he necessarily levies war and it

is

appears that he did so pro terrors mortis.

will

excuse

gentlemen that

if

The law

no other exculpation of such conduct:

will suffer

it

upon no other motive.

refer us to

it,

guilty of treason, unless

But some authority which

a man, without joining the

enemy

will

it

the

declares,

so as to levy

FAMOUS LEGAL ARGUMENTS. war, does,

upon virtuous or even pardonable induce-

ment (having no reference

to the promotion of the

enemy's views), that which happens or be advantageous to the enemy, he

What

is

Such, at ;

least, is

is

calculated to

therefore a traitor?

is

Can he be anything

an adherent?

less

corrupt auxiliary of the

willing partisan, a

word

6$

than a

enemy?

the natural and ordinary import of the

and you cannot

strain

it

beyond that import by

the refinements of construction, to the prejudice of the accused, without reviving the ferocious and appalling doctrine of constructive

England bleed

treason,

at every pore,

and the cottage with

which once made

and stained the palace

judicial murder.

Unlike the conduct of Stone, the conduct of Hodges presents

nothing

ambiguous

to

the

most

zealous

scrutiny.

His honorable feelings and intentions are acknowl

edged by

whom pathy to

all

all

;

he was urged by the

he respected

for the situation of

who know him

solicitation of those

he was led by a generous sym-

;

;

one who

is

deservedly dear

he was actuated by an appre-

hension by no means unreasonable, for the quiet and safety of the affrighted of the neighborhood,

and

women and

helpless children

for the security of the persons

and property of the whole

district.

The

treason of

adherence cannot be committed by one whose heart

warm with the patriot.

all

the honorable feeling of the

is

man and

FAMOUS LEGAL ARGUMENTS.

66 This

the master key which lets you into the whole

is

secret of this title of the criminal law. Tyrrell,

who,

shooting at a deer killed the King,

in

The

could not be convicted of treason.

per infortunum.

another designedly, is

no malignity

it is

killing

still

he

is

innocent, because there

So

his heart.

in

in

every homicide

felonious, justifiable or excusable, according to the

purpose with which the act was perpetrated.

murder when if

was

So, where a person non compos slays

it is

without malice

or self-defense,

when done

in

;

done through malice where

advancement

ence to the laws.

If

manslaughter

it

justifiable

is

of public justice, in obedi-

the heart be uncontaminated

corrupt intentions the

is

done through misfortune,

it is

excusable, and

is

it

;

It

man

is

innocent, for

it is

by

motive

that qualifies actions.

Look

at the locus in

of this treason

before,

quo

— the

—a

scene where the plot

hostile force, but the

had traversed the country

The jus

victory.

army,

laid

is

if

belli

such a force

been relied upon

in

all

day

the pride of

was lord of the ascendant. The

may

deserve the name, which had

for the defense of the capitol, has

been broken up and dissipated to every quarter of the

The country was menaced by an enemy with whom, to adopt the language of Caesar, it was compass.

easier to I

do than to

say.

If

I

were addressing the jury

might appeal to their love of country.

remind them that they are administering law

I

might for pos-

FAMOUS LEGAL ARGUMENTS. But

terity as well as for us.

I

am

where these considerations add

6"]

addressing a tribunal

and

their full weight,

expect with confidence the court will vindicate the

I

doctrines which

At

I

have had the honor to advance.

The ered

with the Chief Justice.

opinion which the Chief Justice has just delivnot,

is

and

I

you have the

If

Hous-

this point Duvall, C. J., delivered his opinion, but

ton, J., did not entirely agree

thank God for slightest

undertake to remove

to

it,

it,

the law of the land.

doubt on the subject,

I will

show you that the cases

have been misconceived, and that

the

conclusions

drawn from them are erroneous.

No man

can

feel for

the learned judge

who

has just

given you his instruction, a reverence and affection

more for

sincere than

him

which

I

I

But reverence and affection

do.

way of citizen who

the great duty

shall not stand in the

owe

to a fellow

relies

on

shield his innocence from the charge of guilt, life

from an attainder

for treason.

I

since his motives were admitted on

me

had hoped all

entitled to praise, since the grand jury

to

and his that,

hands to be

had associated

with their indictment a certificate of the purity of his views, and a solemn recommendation that the prosecution should be abandoned, he left

by the

from you

district attorney,

at least

have been

and the court, to obtain

as he could, a deliverance from the danger

that encompassed him.

appointed.

would

In that hope

I

,

have been

dis-

FAMOUS LEGAL ARGUMENTS.

68

As

if

the state depended upon the conviction of this

unfortunate man, whose situation, one would think, an

might deplore, the

inquisitor

out of his

way

to bring

district

attorney has gone

down vengeance upon him

and one of the court has told you that he and that you ought to

find

him

is

;

a traitor,

so.

In a case where justice might be expected to be

softened into clemency and even to connive at acquittal,

where every generous sentiment must take part with the accused, and law might be thought to fear the

reproach of tyranny,

him

;

in

if

it

,should succeed in crushing

such a case the established order of

is

called

upon

to

mix

trial

is

is

introduced, the court

itself in

your deliberations, to

deserted, a pernicious novelty

mutilate the defense of the prisoner's counsel, to harden

your consciences against the ened mercy, and to

solicitations of

sacrifice a prisoner to

an enlight-

gloomy and

exterminating principles which would render the noble

and beneficent system of law

for

which we are

dis-

tinguished, a hideous spectacle of cruelty and oppression.

For the sake of the country to which

as well as

my

client,

I

will

belong,

not only protest before you

against these principles, but will

them with freedom,

1

examine and speak

restrained only

of

by decorum which

this place requires.

In

my argument to the court, I showed that if it be done

treacherously

it is

any motive not

treason; but

corrupt-,

if

the commander act from

no indictment can touch him.

FAMOUS LEGAL ARGUMENTS. In the case of Stone, which point, the court said expressly,

matters not

how

was

parallel with the

the heart be pure

if

it

So the counsel Has any answer

incorrect the conduct.

argued and Stone was acquitted.

been given that attempted

69

Has any been even

authority?

?

This indictment charges Hodges with having done certain things wickedly, maliciously

and

traitorously.

Must not the United States prove what they

When

allege

?

the law allows even words to be given in evi-

dence as explanatory of intention to exculpate, admits that exculpation

may

be made

it

out by proof of

innocent motives; that overt acts alone do not furnish a criterion

;

that concomitant facts, illustrative of the

state of the heart,

On

must not be neglected.

this occasion the

enemy were

in

complete power

the district where the transactions occurred which

in

are

complained of

in

They were

the indictment.

unawed by the thing which we

called an army, for

it

had Hed in every direction. They were omnipotent The law of war prevailed, and every other law was silent. They menaced pillage and conflagation and, after ;

they had wantonly destroyed edifices which warfare had hitherto respected, was

it

all

civilized

to be believed that

they would spare a petty village which had renewed hostilities before the seal of its capitulation

There was

menace —^power to

— nay, certainty, that

it

execute

was dry

?

— probability

would be executed.

FAMOUS LEGAL ARGUMENTS.

70

How, motive

then, can

you

find a

my

the breast of

in

wicked and treacherous

There

cUent?

is

the absence of any wicked motive but there

which are laudable

ble presence of those

ment

;

not only

is

the

visi-

and attach-

to Dr. Beanes, anxiety for the defenceless people

about him, a desire to preserve the country from the

which hung over

afflictions

we

acterized, so produced,

In conduct so char-

it.

discover the operations of

an excellent heart upon a mind which virtuous induce-

ments could betray into distort

into treason

it

error,

but what way

we can

have not yet been able

I

dis-

tinctly to learn.

The conduct justice,

it

is

in itself treasonable, says the chief

necessarily

imparts the wicked

The

charged by the indictment. it

treason because

it

intention

makes

construction

and comforts the enemy.

aids

These are strong and comprehensive positions; but they have not been proved until

we

and they cannot be proved

;

relapse into the gulf of constructive treason,

from which our ancestors

in

other countries have long

since escaped.

Gracious

God

In the nineteenth century to talk of

!

Gontructive treason

land

—this

last

!

Is

it

asylum of liberty —blest with all that can

render a nation happy at this should

cue

my

possible that in this favored

be law

?

No.

home and I

stand up as a

country from this reproach.

color for this slander

respected abroad,

I

man

to res-

say there

upon our jurisprudence.

is

no

Had

I

FAMOUS LEGAL ARGUMENTS. thought otherwise for law.

the

should have asked for mercy, not

I

would have sent

I

President,

have

not

to confront

defiance,

7I

my

client to the feet of

brought

his accusers,

with bold

him,

and demand your

verdict.

He in

could have had a nolle prosequi,

not

resolution

his

to

that he was safe without

stances

may

I

claim

some

ask

by

Under

it.

am

him

telling

these circum-

My

my opinion.

respect for

upon

opportunities for forming a judgment ject, I

confirmed him

I

it,

this sub-

compelled to say, by the strange turn which

this cause has taken, are superior to those of the chief justice.

I

say nothing of the knowledge which long

study and

me

extensive practice enable

the consideration of the case.

I

to bring to

upon

rely

this

;

my

opinion has not been hastily formed since the com-

mencement

of the

examination of

all

trial.

It is

the result of a deliberate

the authorities, of a thorough inves-

tigation of the law of treason in leisure

all

its

and under a deep sense of a

bility to

my

client.

It

depends upon

forms,

fearful

made

at

responsi-

me whether he

should submit himself to your justice or use with the chief

magistrate the

which could not have

You

intercession of failed to

are charged with his

life

the grand jury,

have been successful.

and honor, because

I

assured him that the law was a pledge for the security of both. life for

I

declared to him that

the safety of

his,

and

I

I

would stake

my own

declare to you now, that

FAMOUS LEGAL ARGUMENTS.

72

you have

much power

as

harm the

as to

client

to shed blood of the advocate

whom

he defends.

the mere naked fact of delivery constitute the

If

why

crime of treason,

under a

flag of truce to return or

equally guilty with him

are

man

justice, this

stands at the bar,

if

you

forbidden to examine his mind, they are com-

manded by

the law to look only to his acts. this in the spirit

to consider doctrine,

ask you

I

of Stone's case.

That

pledge myself, goes through every nerve

I

and artery If

who

goes

exchange prisoners?

According to the doctrine of the chief is

man who

not hang the

of the law.

the doctrine of the chief justice be the law of the

man concerned

land, every

in

the deeds of blood that

were enacted during our recent war, was a murderer.

Our step

gallant soldiers

whenever

who

it

who had

repulsed the hostile

trod upon our shores; our gallant tars

unfurled our

flag,

acquired for us a

name and

rank upon the ocean which will not soon be obliterated

—these are men have the foe

all liable

carried

blood

;

Gentlemen,

to be arraigned at this bar.

dismay and death into the ranks of

calls for blood.

this desolating doctrine

from the face of the earth. to be

crowned with

a gibbet.

when

I

I

ble tenets

laurels

tremble for

reflect

These

would sweep us

Even when we deserved we should be stretched on

my

children, for

upon the consequences

my

country,

of these detesta-

which reduce indiscretion and wickedness

FAMOUS LEGAL ARGUMENTS. to the

same

level.

Which

unguarded moment may

Which

imprudent?

of

of

you

is

may

some

there that in

not, with honest motives,

you can hope

without the imputation of crime,

life

73

be

to pass through

your motives

if

may

be separated from your conduct, and guilt

be fastened upon your actions, although the heart be innocent?

Gentlemen, so deeply do principle, that I

I

know not how

you, although at the present

mind it

in so clear a light that I

more

feel

impressed with this

to leave the case with

moment it strikes my know not how to make

clear.

If this

damnable prosecution should

be the duty of the Bowie, than

whom

district

prevail,

would

it

attorney to arraign Gen.

Nay,

a purer patriot never lived.

half Prince George's country

would come within

its

recommends

to

baleful influence.

Yet such

is

the law the chief justice

His associate does not concur with him.

you.

I

but

upon more exalted grounds.

I

rest the case

upon you

as honorable

value your

say

—and

The

it

In this

should be entitled to your verdict,

conflict of opinion

liberties, as

promptly

men, as you are

you

prize

I call

just, as

you

your constitution, to

—that my client

is

not guilty.

jury immediately rendered a verdict of not guilty.

JOHN PHILPOT CURRAN, SPEECH IN THE CASE OF EGAN

KINDILLAN FOR

VS.

SEDUCTION. Miss Egan was a young lady of acoomplisliments, and great beauty. Mr. Kindillan was a young officer in a dragoon regiment and was first prosecuted for the offence in a criminal court and escaped through, the exertions of Mr. Curran. Mr. Curran was not entirely successful in this case. The

damages, however, were brought down to £500. Mr. Curran closed for the defense as follows :

My lords I

am

and gentlemen of the jury

ples of law

;

of

by a that,

Every

defendant.

in this case counsel for the

action to be tried

:

must be founded on

jury,

princi-

however, the court only can

determine, and upon the judgment of the court, you,

gentlemen,

may

foundation of this action law,

and

The

repose with great confidence. is

upon

built

this principle of

this only, that the plaintiff suffered special

damage by

losing the service of his daughter,

been taken away from him err egregiously,

;

for you,

and the court

will

who

has

gentlemen, will you,

tell

if

you

imagine that the law has given any retribution by way of

damages

for the

agony which the father may

from the seduction

mean

to

make

of his child.

However,

light of the feelings of a

would be a strange character, and

little

I

suffer

do not

parent

;

he

deserving the

;

FAMOUS LEGAL ARGUMENTS. attention of a court,

who

could act in that manner;

to see his gray hairs brought with grave, and yet hold

contempt.

and

I

him out

whatever

calamity to the

as a subject of levity or

do no such things

quietly, that,

75

but

;

I tell

his feelings

you soberly

may

be,

it

a

is

kind of misery for which the law does not provide any'

No

remedy.

action

lies for

debauching or seducing a

daughter, but only for the loss of her service

same time over and over

;

at the

ground

again, that the only

the special circumstance of the loss of her service the same time, gentlemen,

I

man

has been stated

in

Miss Egan has

—

story^

I

I

you.

to

In it is

which either aggravate or

go to the jury.

This case

evidence by two persons.

most extraordinary

told, I think, the

do not allude

heard

never

it,

large

sustains from another,

right to let all circumstances,

diminish the weight of

—at

agree implicitly in the

go at

idea of letting the case

every injury which one

is

to her credit

extraordinary

so

never heard of an instance

;

I

only say

I

because

a

story,

a

young woman,

of

decently bred, arrived at eighteen, going away with a

man,

after a single conversation

acquaintance

— no

and

father's house, protection,

versations, in riage

;

;

having no previous

express promise

;

care,

abandoning her after

two con-

which there was not one word of mar-

without a previous opportunity of engagement

without a possibility of engaging her affections or seducing her

from

her

father

;

she

embraces

the

first

— ;

FAMOUS LEGAL ARGUMENTS.

•j6

opportunity which was given to her; therefore, indeed I

am

astonished.

I

gentlemen, the case ought

said,

go before you

rightly to

—

tell

I

you why

—circum-

stances which compose the enormity of an offense of this

kind can be judged by you.

If

you receive a man

into

•your house, give him access to any female in your family, and he converts that privilege virtue, I

know nothing

of greater enormity.

admit a man to your house and your avails himself of that confidence to

your daughter or your

wife,

I

which the just indignation of a ried.

But

if

if

the

it

transaction,

Mr. Kindillan

?

you

abuse the virtue of

know of no length to jury mightnot be car-

his

cannot be condemned.

even as stated by the witness seducer

If

and he

he was rather the follower than the

defendant,

palliated,

table,

there be no criminality on the part of the

mover

of

abuse her

to

conduct

Look

herself.

Where was

!

may be

at this case,

Who

was the

the single act

to inspire her with a single hope, that he intended to

marry her

why go

?

Why

steal

away from her father's house

to a public inn, at a

common

seaport, even at

that age, and with that degree of understanding

see her possess

was no design spent

?

you

She confesses she suspected there

of marriage

a night with her,

;

that at Aungier street

h-e

and no design of marriage

they cohabitated week after week, and no conversation of marriage

till

they leave their mother country, and

arrive at the Isle of

Man — and

then from

whom

does

FAMOUS LEGAL ARGUMENTS. it

move?

Not from her who might have talked even

with a degree of pride,

from her father

" ;

she though he took her away

if

you have robbed me

my

the promise of becoming protector his

TJ

!

"

No_;

you

find

husband

— give

received

?

what kind

She throws

officer she ever

me

that

moving from him, from

it

apprehension of her dissatisfaction.

believe that,

under

of a father

herself into the

you can

If

must she have

of education

arms

of the first

saw; fhes into a hackney coach and

goes to another country, and never talks of marriage till

To

she arrives there.

a very invidious

subject

argument of that kind.

talk of the loss of a father ;

every father must

But

it is

feel

is

an

not because that one

man suffers, another must pay. It is in own guilt that he must be punished,

proportion to

his

therefore

it is

that the law denies the right of the father to receive com-

pensation.

It is

an injury which can rarely

when

arise,

the father has discharged the precedent part of his duty. its

It is wise, therefore, that

the law should refuse

sanction to an action of that sort, because

upon the father to guard against that event, he knows he can have no reparation. against

the -injury by

which may give to reward his

it

birth

;

would be the consequence

am

not here

to.

calls

which

guards more

discountenancing the neglect

own breach

to an action of this sort.

It

it

for

of if

compensation

refuses a

it

duty.

Only

the law gave

This

man

is

in

to preach about morals

;

see

its

what

sanction

the army. I

am

I

talking

FAMOUS LEGAL ARGUMENTS.

78

men who may

to

perfect than

human nature is not more who must take men as they are.

regret that

it is,

but

This man goes to a watering place

woman,

he sees

;

and levity

of giddiness

full

— no

short

"

;

"

conducts herself. ?

but the second conversation, and she

;

young

see how she in any fetpale Have you considered the pro"No," says she, "our acquaintance is too

but certainly not excusable

posal

.this

vice possibly,

is

gone.

How

would any of you, gentlemen, think of your

child,

if

she picked up a

saw before

young buck whom she never

What would your

?

wife say

if

she was

man she did not know ? But you know mankind — you know the world. What would you think of a woman, unmarried, who told her daughter

had picked up a

on these terms?

held a conversation

If

borough you addressed a young woman,

at

Philips-

with"

whom

not a word of marriage passed, and yet she accompanied you without hesitation, would you suppose her a

girl of

family and education, or would you not rather

suppose her to be one of those unfortunate, uneducated creatures, with

whom

from

marriage

is

that

of

the situation of the

seduced than seducing. to

you

for

damages

a conversation

takes

defendant It is

very different

place?

upon

;

This,

then,

he yields, more

this the father calls

!

For an injury committed

— by

whom?

From what

cause?

From

the indiscreet behavior, the defective educa-

— ;

FAMOUS LEGAL ARGUMENTS. tion,

and neglected mind

79

He

of his daughter.

can

have no feeling or he would not have exposed both her and himself; or

he have any feelings, they are such

if

by you, gentlemen

as can be gratified

of the jury

He

they are such as can be calmed by money! find in

more enjoyment

in

can

pecuniary compensation than

other species of retribution. I

am

speak harshly— I

It is to

obliged to do so

;

I

feel

it.

be decided by you with liberality and justice

between such a father and the defendant. I

Her if it

am

stating these things, supposing

story

is

well delivered

were not, when

—

their oaths acquitted

was sworn

to

you believe

life,

him

by

The

and twelve men upon

though the

of the charge,

Her

her.

her.

would be extraordinary

has been so often repeated.

it

defendant was tried for his

fact

it

suffering

and her

beauty may make an impression upon your minds, but

you

are not

come here

to pity, but to give a verdict

not from passion, but which

may

be the^alm result of

There

deliberation between party and party.

of false determination of mind, which judicial

men upon

than speculation.

cases which involve If

you can

feel

more sentiment

any such sensation

which reason may be consumed,

to guard against

not to suffer. sighs, that

its falling

It

is

a kind

makes dupes of

your mind, glowing and heating to a degree in

is

let

me

in

of violence

entreat

you

upon the head which ought

not her tears, her heavings, her

must influence your sentence.

She has been

FAMOUS LEGAL ARGUMENTS.

8o

brought up a second time by her father and exhibited

unhappy object

before you, the

of vice and of wanton-

She has thus been exhibited by that

ness.

whose bition

feelings are represented as so tender

father,

—an

exhi-

which ought to have been avoided by a sincere

parent.

But

let

me expose

be the dupes of such

the

silly trap,

It

artifice.

that

you may not

was a simple case

could have been proved without her testimony leaving her father's

many; and

home

it

could have been proved by

of the finding her in the defendant's pos-

session there

was

sufficient evidence,

and the service

could be proved as well by any person as herself his

;

the

;

;

conduct was appears by her own evidence

goes away with a

man

—he

is

seized and called

what ;

she

upon

to marry her under the terror of a prosecution for his life,

a species of inducement such as

Let

it

was never heard

not be told that a case of this kind

of.

—that the woman

unsolicited elopement of a young, unfortunate

yielding to criminal desires, going off with an officer

upon a

first

acquaintance,

by a court and that a loose

is

an example to be held up

jury, or to be sanctioned

girl,

by a verdict;

coming back from the cloyed appetite

of her paramour, should

make welcome her

return to

her father's house by the golden showers of compensation.

If

you wish

to

hold up examples to

elopements of your children, establish dict

and be answerable

for the

it

justify

by your

ver-

you

will

consequences

;

FAMOUS LEGAL ARGUMENTS.

8l

resolve yourselves into a fund for unportioned wantons,

whose fathers will establish

am

I

you

tell

for fortunes

you

;

an example.

not ashamed to be

warmth though to

draw upon you

will

may my

I

warm — I do not talents

;

me

but give

my

sell

leave

that an example of this kind, where

no

abuse of confidence can be pleaded, nor treachery alleged,

would go thus

far that

every miserable female

that paiades about your streets in order to

make a

miserable livelihood by the prostitution of her person, will

come forward under the imposing

witness, because there

not a father that

may

is

father

them who has

of

Let

me warn

:

an example by which the needy

will establish is

any

bring an action.

you against another case

You

scarce

character of a

encouraged,

first,

to force the

man

into mar-

riage under the apprehension of a prosecution, or after-

wards to compel him from the dread of a

verdict, unless

you think that the man could be reconciled a girl he

is

tired of,

marry

and who has added perjury to the

rest of her conduct. will

to

It is

hard to talk of perjury

they answer for the verdict of twelve honest

upon

their oaths

?

Impeach her

swearing this day to the fact verdict of twelve

men

;

but

;

men

credit because she is

in

she swore to

opposition to the it

upon the prose-

cution, because of terror from her father, expecting to

receive death from his hands unless she

by

perjury.

warded

Have you not Heard her swear

it

off

that he

FAMOUS LEGAL ARGUMENTS.

82

forced her into the King's

hand

Bench with

a knife in his

After he had failed to affect the

?

of the

life

defendant, he makes a desperate attempt at his property through the

means

of a jury

—

is

this a case for a

jury?

She gdes off unsolicited, she seeks the oppor-

tunity,

and yet Mr. Kindillan

is

to be the victim

young man who meets a woman, goes indulges his appetite at the expense quietness, and happiness of a family,

see reformed

be punished

;

A

!

and

to a tavern, of

the

peace,

you may wish to

but be he whose son he may, he cannot

in this

way

for

Will you

such conduct.

lay your hands on your hearts and say whether the

defendant has been more to blame than Miss Egan herself? it

at

;

She has suffered much

first

— her

from her terror of her

evidence shows

father,

now

in pre-

serving her consistency, to see her exposed as she was

on the

But has the defendant suffered nothing?

table.

Is suffering

nothing to be put

have the horrors of a prison to encounter? ing,

what he must have suffered

He comes now

in point of

Is

it

him by robbing

marry the daughter.

Would

it

boldly to you verdict.

— answer

it,

all

the

of his property, to

you, gentlemen, advise

your sons to marry under such circumstances? your

noth-

property?

to resist the last attempt, after

others, to drive,

To

in fear of his life?

and your answer

put

I

shall

be

After ten weeks' voluntary cohabitation

would you advise him to marry, or would you ensure a reasonable prospect of conjugal fidelity afterwards

?

FAMOUS LEGAL ARGUMENTS. Let

me

not take up your time

to discredit what she has sworn for her, for

what she

;

;

we

will call witnesses

let

me

upon her

said

83

say in excuse

oath, that shp

forward under the terror of her father's power. it

came

Certain

that a sense of female honor should not have

is,

had more influence upon her when

where she was vindicating

comes to put money

The consequence encourage every child

;

herself,

the other courts,

into her father's pocket.

damages

of large

man

in

than here where she

is

mind

will

to neglect the education of his

making a fortune by dropping a seed

ality in the

You

this:

of the female,

which

may

of

immor-

ripen into

that tree of enormity, that will be cut down, not to be cast into the

A girl table,

fire,

but for the father's benefit.

of eighteen,

whose

whose father forced her upon

sufferings have

the leprosy of her morals, If

been brought upon her by

is

not to be countenanced.

you wish to point out the path

dishonor, and you think

it

this

to

matrimony, though

better that your daughter

should be led to the altar from the brothel than from the parent's arms, you

you think

may

verdict.

If

author of

her own misery

may

it

hold up, you will do

establish that

by your

better to let the unfortunate benefit it

by the example she

by such a verdict

understanding, not your passion,

dictates.

as

your

:

DANIEL WEBSTER. ARGUMENT

IN THE CASE OF OGDEN VS. SAUNDERS, UNITED STATES SUPREME COURT, JANUARY TERM, 827. 1

This case is not selected for its rhetorical display, nor is it aa famous as his wonderful argument in the Dartmouth College case, which we take for granted every reader of this is familiar. But the chain of argument leading up to the conclusions reached indicates the perfect reasoning and clear statements and the magnificent power and force of his understanding. Mr. Wehster closed the case for the respondent as follows :

May

it

The

please the Court

question

arising

in

case

this

important, nor so important even, in

its

dividual cases of private right, as in

its

public political question.

The

tended to accomplish a great design was not so in

one

make

much

salutary

political

object

provisions,

among

and their own

course with each other.

;

inits

all

all

The

was to

it

which,

in

their

contracts, stability

the states

things which materially concern the foreign of the country,

was

to prevent injustice or injury

operation, should give security to

to credit, uniformity

in-

character of a

Constitution

case, or in successive single cases, as

general

more

not

is

bearing on

credit, trade, real question

in

those

commerce and is

inter-

whether

the Constitution has not, for general political purposes,

ordained that bankrupt laws should be established only

FAMOUS LEGAL ARGUMENTS. by

We contend

national authority?

of the Constitution

intention

,

that such was the

an intention, as we

think, plainly manifested in several of

The Act arises, all his

of

New

debts,

its

York, under which

provides that a debtor

upon assigning

for the use of his creditors.

8$

may be

provisions. this

question

discharged from

his property to trustees

When

applied to the dis-

charge of debts contracted before the date of the law,

Act

this court has decided that the

Act

itself

makes no

The

invalid.

is

between past and

distinction

future debts, but provides for the discharge of both in

the same manner. existing,

it

is

In the case, then, of a debt already

admitted that the Act does impair the

obligation of contracts.

It

is

not merely that the

Legislature of the State cannot interfere by law, in

the particular case of A., or rights it is

B.,

to injure or impair

which have become vested under contracts

but

;

that they have no power by general law to regulate

the manner in which subsisting contracts

all

in

;

debtors

may

be discharge^ from

other words, they cannot pass

general bankrupt laws to be applied in prcesenti.

we know the when bankrupt laws are

contrary,

general practice to be, established, they

tinction between present and future

agree that are unjust,

cases

may

special all

Acts,

made

for

politic.

the

that,

make no

debts, while

disall

individual cases,

admit that a general law made

be both just and

It is

On

not said that they are unwise or impolitic.

The

for all

question,

FAMOUS LEGAL ARGUMENTS.

86

then, which meets us on the threshold,

is

If

this:

the

Constitution meant to leave the State the power of

upon future

establishing systems of bankruptcy to act

what great or important object of a

debts,

nature

is

systems

such

applicable

argument used least,

political

answered by denying the power of making

in

Sturges

debts

The

to

existing

vs.

Crowninshield was, at

a plausible and consistent argument.

?

main-

It

tained that the prohibition of the Constitution

was

leveled only against interferences in individual cases,

and did not apply

to general laws,

were retrospective

in their operation.

rejects that conclusion.

tion

It

was intended to apply

of bankruptcy

;

that an

was

of

But the court

decided that the Constituto general laws or

Act providing that

might be discharged from conditions,

whether those laws

all

creditors,

all

upon

systems debtors certain

no more validity than an Act provid-

ing that a particular debtor. A, should be discharged on

the sajne conditions from his particular creditor, B. It

being thus decided that general laws are within

the prohibition of the Constitution, in error

now

to

it is

for the plaintiff

show on what ground, consistent with

the general objects of the Constitution, he can establish a distinction which can give effect to those general laws in

their application to future debts,

them

while

it

effect in their application to subsisting

denies

debts

;

the words are, that " no State shall pass any law

impairing the obligation of contracts."

The

general

;

\

FAMOUS LEGAL ARGUMENTS. operatkpn of that

is,

This

is

all

such laws

8/

to impair that obligation

is

to discharge the obligation without fulfilling

admitted

;

and the only ground taken

distinction to stand on

is,

for the

when the law was

that,

;

it.

in

existence at the time of the making of the contract,

the parties must be supposed to have reference to

law

or, as it is usually expressed, the

the

Before

contract.

considering

argument,

may

is

made

it

a part of

what foundation be well to inquire

there

is

for the

what

is

that obligation of contract of which the Con-

stitution speaks,

The "

and whence

definition given

Crowninshield

A contract,"

it

is

it is

sufficient

particular thing

form

this

;

in

Sturges vs.

our present purpose.

for

say the court, "

some

derived.

by the court

is

an agreement to do

the law binds the party to per-

agreement, and this

is

the obligation of the

contract." It

is,

words

indeed, probable that the Constitution used the

in a

somewhat more popular

sense.

We

speak,

for example, familiarly of a usurious contract, and yet

we is

say,

speaking technically, that a usurious agreement

no contract.

But the obligation

of a contract,

we should under-

stand the Constitution to mean, the duty of performing

a legal agreement. is

bound

is it

to perform

that binds

him

If it.

?

the contract be lawful, the party

But bound by what

And

this leads us to

?

What

what we

regard as a principal fallacy in the argument on the

88

FAMOUS LEGAL ARGUMENTS.

Other side.

That argument supposes, and

the whole obligation of a contract has

This position we contract.

municipal law.

be a lawful contract doubtless allowed

that

;

contracts, as well as all such actions, as

But

mischievous or injurious.

as the law of society tolerates

lawful

if

—

this

is

must

It

all

such

deems to be

it

the contract be such

in

other words,

— then, we say, the duty of performing

from universal law, and

the

permitted and

is,

because society has a right to prohibit

;

that

insists,

its origin in

it

if it

be

springs

the concurrent sense of

the writers of authority.

all

The duty rest

of performing promises

on universal law: and

established principle,

is

thus shown to

departing from this well

if,

we now

origin in the law of a particular state, and

cases what that law

makes

it,

who

follow the teachers

instruct us that the obligation of a contract

has is

its

in all

and no more, and no

less,

we" shall probably find ourselves involved in inextrica-

A

man promises, for a pay money in New York.

ble difficulties. sideration, to

tion of that contract it

by the laws

performing

for

its

We

independent of those laws?

subsist

subsist,

Is the obliga-

of that state, or does

that the obligation of a contract, that

lar place

valuable con-

is

it

existence

;

made, and dependent on that law

but that

it

may

subsist,

without that law and independent of

obligation

is in

contend

the duty of

not created by the law of the particu-

it, is

where

is,

the contract

itself, in

and does it.

The

the assent of the

FAMOUS LEGAL ARGUMENTS. And

parties,

89

This

in the sanction of universal law.

is

the doctrine of Grotius, Vattel, Pothier and Rother-

The municipal law

forth. is

made, to compel

But

violation.

its

this

same law being the Let us

acts

ties

This

remain

in

is

New York for the

New

York, But,

to Peniisylvania, there

is

it is

far

society.

if

a

if it

But suppose the same

is

still

subsists,

to be enforced

made has or the

and

go together

parties to

beyond the

a right to take

weapon

that

York; but

it

obligation of

whom

is,

and

the law

the promise was

by force the animal, the uten-

was

were created by the laws its

The

as perfect as ever,

was promised him.

The

in Pennsylvania, or

this could not

ent on that law for

is

by another law, that

and the party to

as perfect here as

New

be broken.

the remedies are furnished by the laws of

the contract

sil,

article

new law comes to act upon the

reach of the laws of any society.

now

by the

they remove with the

to a savage wilderness, or a desert island,

of nature;

weapon

to be enforced

contract, and to apply other remedies

is

(^livery,

a lawful contract, and, while the par-

laws of the State.

Thus

Two

matter by an example.

illustrate this

it

for

the contract.

(f(

to the other, of a domestic animal, or a

of war.

after

damages

a very different thing from the

is

origin or fountain

persons contract together in

by one

on the contract

execution, or give

its

of

be so

if

New York,

right

even

in

the obligation or were depend-

existence, because the laws of

that State can have no operation

beyond

its territory.

FAMOUS LEGAL ARGUMENTS.

90

Let US reverse

Suppose a contract

example.

this

made between two persons There are such

extends.

on an uninhab-

cast ashore

ited territory, or in a place over

to be

which no law of society

places,

and contracts have

been made by individuals casually there, and these contracts have been enforced in courts' of law in

Whence do such

ized communities. their. obligations,

not from universal law?

if

these considerations

If

show us that the

obligation

of a lawful contract does not derive its force

particular law of the place

where that law does not

exist,

and be enforced where it

follows,

we contend,

any statute which diminishes or lessens

tion does impair

it,

whether

the contract in date.

pendent

together with say,

did not ;

owe it

its

own

its

obliga-

precedes or succeeds

contract having an inde-

and interferes with

and impairs,

obligation.

York

it,

The

it

comes

whenever the law

origin,

from the

where made, but may exist

that law has no validity, then that

civil-

contracts derive

original

it

it,

to

exist

lessens,

we

and independent

In the case before the court, the contract its

existence to the particular law of

New

did not depend on that law, but could be

enforced without the territory of that State, as well as within

it.

Nevertheless, though legal, though

thus

independently existing, though thus binding the party everywhere, and capable of being enforced everywhere, yet the statute of

New York

charged without payment.

says that This,

we

it

shall

be

dis-

say, impairs the

FAMOUS LEGAL ARGUMENTS. obligation of that contract.

been legal

in

its

It

admitted to have

is

inception, legal in

9I

its full

extent, and

capable of being enforced by other tribunals according to

its

An

terms.

without payment its

purporting to discharge

act, then,

as

is,

we

it

contend, an act impairing

obligation.

Here, however, we rheet the opposite argument, stated on different occasions in

summed up

usually

.

in

this,

different

terms, but

that the law itself

is

a

party of the contract, and, therefore, cannot impair

it.

What

It

does this mean

Let us seek

?

for clear ideas.

does not mean that the law gives any particular construction to the terms of the contract, or that

it

makes

the promise or the consideration, or the time of performance, other than It

can only

is

mean

expressed

that

the instrument

in

itself.

to be taken as a party of

it is

the contract, or understanding of the parties, that the contract

itself shall

lations, as are in

be enforced by such laws and regu-

being

in

the State where

adjudged cases

There

is

made,

is

no authority

for the plaintiff in error

but the State

at the time of entering into in

it

it.

decisions which have been cited, and, as has already

been stated, they is

all rest

part of the contract.

That,

if

on

this

Against

reason, that the law

this,

we contend

:

ist.

the proposition -were true, the consequence

'would not follow.

2nd.

That the proposition

itself

cannot be maintained. If it

were true that the law

is

to be considered as

FAMOUS- LEGAL ARGUMENTS.

92

part of the contract, the consequence contended for

would not follow the contract, so

;

is

because,

this statute be part of

if

every other legal or constitutional

provision existing at the time which affects the contract, or

this

which

capable of affecting

is

very article of the Constitution of the United

States

is

to have

The

part of the contract.

argues in a complete

law,

and especially

it;

He

circle.

had reference to

and yethe proves

it

supposes the parties

because

it

unconstitutional

us the law inquire

if

it

was a binding

upon

to be a binding law only

the ground that such reference was

Gome before the

plaintiff in error

made

to

We

it.

court alleging the law to be void, as

they stop the inquiry by opposing to

;

Is

itself.

this law

is

We

this logical?

propose to

of force to control our contract, or

whether, by the Constitution of the United States,

such force be not denied to

one if

it.

"

This contract," says

of the authorities relied on, "is to

the law were specially recited in

for the sake of

strued as

if

were recited

it

is

Let

also to

be so

it

be con-

the prohibitory clause of the Constitution in

it,

and

this brings us

precise point from which

The

But

argument.

be construed as

it."

back again to the

we departed.

constitution always accompanies the law, and

the latter can have no force which the former does not allow to

it.

If

the reasoning were thrown into the

form of special pleading, plaintiff declares

it

on his debt

;

would stand thus

:

The

the defendant pleads his

FAMOUS LEGAL ARGUMENTS. discharge under the law unconstitutional existence

its

the plaintiff alleges the law

but the defendant says, you knew of

;

to which the answer

knew

sistible, I

New

;

;

its

York, but

93

I

is

obvious and

irre-

existence on the statute-book of

knew,

same

at the

time,

was

it

null

and void under the Constitution of the United States.

The language

of a leading decision

''

is,

a law in

making the contract does not

force at the time of ;

violate that contract " but the very question

there be any such law "in force;"

is

whether

the States

for, if

have no authority to pass such laws, then no such law can be

in force.

tract as

much

The

Constitution

contemplation of the parties. if it

be admitted that the law

leaves us just where

it

is

and was

as the law,

a part of the con-

much

as

in

the

So that the proposition, is

a part of the contract,

found us; that

is

to say, under

the necessity of comparing the law with the Constitution,

be is

and of deciding by such comparison whether

it

the law be unconstitutional,

it

valid or invalid. void,

If

and no party can be supposed to have had

reference to a void law.

But the proposition

The law is

itself

promise? The consideration it

is

neither of these.

It acts

?

It is

What

municipal law

is

its

part

is it?

The condition?

The

Clearly,

no term of the contract.

upon the contract only when

discharge the party from

The

cannot be maintained.

no part of the contract.

it is

broken, or to

obligation after

it is

broken.

the force of society employed to

FAMOUS LEGAL ARGUMENTS.

94

compel the performance

ment

in

In every judg-

of contracts.

a suit on contract, the damages are given, and

the imprisonment of

awarded, not

the person

goods

or sale of

performance of the contract, or as part

in

of the contract, but as an indemnity for the breach of

the contract. contracts,

;

what

well consider both

their liabilities will

broken

when they

.Doubtless, parties,

may

be by the law,

if

enter into

their rights

and

such contract be

but this contemplation of consequences which

can ensue only when the contract of the contract

the contract

itself.

till it

is

broken,

The law has nothing

be broken

;

is

no part

to do with

how, then, can

it

be said

to form a part of the contract itself?

But there are other cogent and more against considering (i)

the:

specific reasons

law as part of the contract,

the law be part of the contract,

If

repealed or altered

;

it

cannot be

New York,

the insolvent law of

for

example, authorizes the discharge of a debtor on the

A

consent of two-thirds of his creditors.

Act requires the consent existing law be part of

would be

of three-fourths

;

but,

if

the

the contract, this latter law

In short, nothing which

void.

subsequent

is

part of the

contract can be varied but by consent of the parties; therefore,

the argument

runs

in

absurdum ;

for

it

proves that no laws for enforcing the contract, or giving remedies upon If the

law

in

of assent to

it,

can be changed or modified.

question binds one party on the ground

it,

it

binds both, and binds them until they

FAMOUS LEGAL ARGUMENTS.

9$ «

agree to terminate

operation.

its

bound by an implied making the law a it

be

if

the

If

(2)

the party be

assent to the law, as thereby

the contract,

part of

had

parties

expressly

how would and

dissented,

agreed that the law should make no part of the contract

Suppose the promise to have been that the

?

promisor would pay at tage of the statute

would not the statute operate

still,

;

And

on the whole?

events, and not take advan-

all

does not this show that the law

no part of the contract, but something above

it ?

the law of the place be part of the contract,

how

it

be enforced, as we

all

know

it

might

(3)

is

If

could

another

be, in

jurisdiction,

which should have no regard to the law of

the place

Suppose the

?

remove to another

them not.

state,

parties, after the contract, to

do they carry the law with

as part of their contract

Or, take a

common

We

?

Some

case.

abolishing imprisonment for debt

ing to the argument, are then, can the party,

all

all

;

know they do

states have laws

these laws, accord-

parts of the contract

when sued

in

another

imprisoned contrary to the terms of the contract

The argument

proves too much, inasmuch as

founded on a supposed assent to the exercise lative

authority,

without

considering

The

illegal.

the control of legislative power strong

when

that

power

is

is

?

be (4)

applies

it

as strongly to prior as to subsequent contracts.

exercise be legal or

how,

;

state,

It is

of legis-

whether that

implied reference to as reasonable

dormant, as while

and as it is

in

FAMOUS LEGAL ARGUMENTS.

96

In

exercise.

existed is

;

one case the argument

you knew

"The power

:

it

and acquiesced."

There

matter

is,

in

that every

man

is

;

you knew

it it,

true view of the

presumed to submit to exercised, over

him

all

or his

and no one should be presumed to submit to acts

illegal (5)

The law

as clear an assent in

The

the other.

power which may be lawfully right,

is

"

:

In the other

to pass the law existed

and took your chance."

one instance as

is

whether actual or contingent.

of power,

But a main objection

argument

to this

is,

that

it

would render the whole constitutional provision idle and inoperative

;

and no explanatory words,

words had been added

The

of the contract tract, if

;

it

law,

it is

said, is part

cannot, therefore, impair the con-

because a contract cannot impair

this

such

could have

in the Constitution,

prevented this consequence.

if

argument be sound,

the

itself.

Now,

would have

case

been the same, whatever words the Constitution had used.

But, further, this idea,

if

well founded, would enable

the states to defeat the whole constitutional provision

by a general enactment. declare,

by

law, that

all

Suppose a

state

should

contracts entered into therein

should be subject to such laws as the legislature, at

any time, or from time to time, might see

fit

to pass.

This law, according to the argument, would enter into the contract, become a part of interference of the legislative

it,

and authorize the

power with

it;

for all pur-

FAMOUS LEGAL ARGUMENTS. poses, wholly uncontrolled

97

by the Constitution

of the

United States.

So much

for the

argument that the law

is

a part of

the contract.

The

inquiry, then, recurs,

whether the law

be such a law as the legislature of

The

authority to pass.

question

is

in

question

New York had

general.

We

differ

from our learned adversaries on general principles.

We

differ as to the

main scope and end

They

stitutional provision.

we

regard

as preventive.

it

entirely remedial;

think

it

They

think

secure redress for violated private rights

intended

to

They argue

it

guard against as

if it

great

of this con-

it

adopted to

to us

;

it

seems

public mischiefs.

were designed as an indemnity or

protection for injured private rights in individual cases

of

meum and tuum ; we

look upon

it

as a great political

provision, favorable to the

commerce and

whole country.

we do not deny

Certainly,

credit of the

tion to the cases of violated private rights.

are clearly and unquestionably within

And

this is

applica-

Such

cases

operation.

proved by reference to the history of the

Commerce,

country.

its

its

credit,

and confidence were the

principal things which did not exist under the old Confederation,

present

and which

Constitution

it

to

was a main object of the create

and

establish.

vicious system of legislation, a system of paper

and tender

laws,

A

money

had completely paralyzed industry,

threatened to beggar every

man

of

property,

and,

;

FAMOUS LEGAL ARGUMENTS.

98

ultimately, to ruin the country.

debtor

and

always

creditor,

dangerous whenever

it

The

between

relation

and

delicate,

always

divides society, and draws out

the respective parties into different ranks and classes,

was

in

such a condition

in the years

1788,

1787,

1789, as to threaten the overthrow of

and

government

all

and a revolution was menaced, much more

critical

and

alarming than that through which the country had recently passed.

was to

The

arrest these evils

security to

property

;

new

object of the ;

to

Constitution

awaken industry by giving

to establish confidence, credit,

and commerce, by salutary laws, to be enforced by the

power war

of the

was

whole community.

over;

the

domestic tranquility

;

country, had it

enjoyments, and none of

peace, but little

had

liberty,

its

security.

tion was, therefore, framed, as

more

The revolutionary

it

but few of

The

its

Constitu-

professes, " to form a

perfect union, to establish justice, to secure the

blessings of liberty, and to insure domestic tranquility." It is

not pertinent to this occasion to advert to

all

the means by which these desirable ends were to be

Some of them, closely connected with the now under consideration, are obvious and prominent. The objects were commerce, credit, and obtained. subject

mutual confidence required,

value

or

in

matters of property

;

and these

among other things, a uniform standard of medium of payments. One of the first

powers given to Congress, therefore,

is

that of coining

FAMOUS LEGAL ARGUMENTS.

money and of the

99 ;

and one

is

the total

fixing the value of foreign coins restraints

first

imposed on the states

prohibition to coin money.

These two provisions are

industriously followed up and completed by denying to

the states

all

power

to emit bills of credit, or to

anything but gold and of

debts.

standard of

The whole control, therefore, over the value and medium of payments is vested in

And

the general government. stantly suggests

itself,

why

here the question

and

fixing on a standard of value, in

which debts

in-

should such pains be taken

to confide to Congress alone this exclusive

medium

make

tender in the payment

silver a

shall

power

of

of prescribing the

be paid,

after

if it is,

all,

may be how they may be dis-

to be left to every state to declare that debts

discharged, and to prescribe

charged, without any payment at that the Constitution has not left

We contend that for

two

and

apparent

it

We

work

contend

unfinished.

was intended to provide

things, intimately connected with each other.

These are 2

it is

all ?

its

—A

:

i

—A

medium

for the

payment

of debts

;

uniform manner of discharging debts, when

they are to be discharged without payment.

The arrangement

of the grants

tained in the Constitution occasion.

The

enumerated one

powers

is fit

and prohibitions con-

to be regarded on this

granted

after another in

to

Congress

are

the eighth section

;

the principal limitations on those powers, in the ninth section

;

and the prohibitions to the

states, in the

tenth

;

FAMOUS LEGAL ARGUMENTS.

lOO section.

Now,

particular

power be exclusively vested

order to understand whether any

in

Congress,

in

it

is

necessary to read the terms of the grant, together with the terms of the prohibition. that

power

of

Here the grant

age power.

Take an example from

which we have been speaking, the cointo

Congress

is

:

"

To

coin money, regulate the value thereof, and of foreign

Now, the

coins."

though found

in

correlative prohibition on the states,

another section,

is

undoubtedly to be

taken in connection with the foregoing, as it

in

The only

reading of these

this

fore, is

just :

"

Congress

money, regulate the value

shall

as

if

thereof,

make anything but gold and

provisions, there-

power to coin

have

and of foreign coins

but no state shall coin money, emit

payment

much

the same clause.

had been found

of credit, 'or

bills

silver

coin a tender in

of debts."

These provisions respect the medium

of

payment, or

standard of value, and, thus collated, their joint result is

clear

We

and decisive.

think the result

clear, also, of

those provisions

which respect the discharge of debts without payment. Collated shall

in like

manner, they stand thus

:

"

Congress

have power to establish uniform laws on the sub-

ject of bankruptcies

throughout the United States

but no state shall pass any law impairing the obligation of contracts " if

This collocation cannot be objected

to,

they refer to the same subject matter; and that they

FAMOUS LEGAL ARGUMENTS. do

refer to

lOI

matter we have the

the same subject

authority of this court for saying, because this court

solemnly determined, this

Sturges

in

vs.

on the states did apply to systems

prohibition

of bankruptcy.

must be now taken,

It

state bankrupt laws were in the

tion

when the

Crowninshield, that

mind

therefore, that of the conven-

prohibition was adopted, and, therefore,

the grant to Congress on the subject of bankrupt laws,

and the prohibition to the states on the same subject, be taken and read together; and being

are, properly, to

thus read together,

is

not the intention clear to take

from the state the power of passing bankrupt laws, since, while

enacted by them, such laws would not be

uniform, and to confer the power exclusively on Congress,

by

whom

The words

uniform laws could be established

The

are general.

impairing contracts

;

that

nature of things, a law

is,

may

and, therefore, such contract

the other side to

no law

any contract.

In

show a

the

impair a future contract, is

within the protection of

The words being

the Constitution.

?

states can pass

limitation

;

general,

and

it is

this, it is

for

sub-

mitted, they have wholly failed to do, unless they shall

have established the doctrine that the law of the contract.

It

may

is

is

worth regarding. The

called a law, not an act.

the general acceptation,

part

be added that the particular

expression of the Constitution

thing prohibited

itself is

is

A

law, in

a rule prescribed for future

conduct, not a legislative interference with existing

FAMOUS LEGAL ARGUMENTS.

102 rights.

The

framers of the Constitution would hardly

have given the appellation of law to violent invasions

by

of individual rights, or individual property,

acts of

Although, doubtless, such acts

legislative power.

fall

within this prohibition, yet they are prohibited also by general principles, states, and,

acts

and by the constitutions of the

therefore, further provision against such

was not so necessary

The most

as against other mischiefs.

conclusive argument, perhaps, arises from

the connection

in

The words

which the clause stands.

of the prohibition, so far as

that " no state shall coin

it

applies to civil rights are,

money, emit

bills

of credit,

make anything but gold and silver coin a tender in the payment of debts, or pass any law impairing the

The

obligation of contracts."

and ex post facto laws, ceedings,

and,

standing by

itself

;

to criminal pro-

refers entirely

therefore,

tion are connected

prohibition of attainder,

should

be considered as

but the other parts of the prohibi-

by the subject matter, and ought

therefore, to be construed together.

Taking the words

thus together, according to their natural connection,

how

is it

more limited construction

possible to give a

to the term " contracts," in

sentence, than to the diately preceding?

word

Can a

gold and silver a tender in

This nobody pretends. distinction

?

the last branch of the " debts,"

in

that

imme-

make anything but payment of future debts? state

But what ground

Now, by what reasoning

is

is it

there for

made out

FAMOUS LEGAL ARGUMENTS.

IO3

that the debts here spoken of are any debts, either existing or future, but that the contracts

Such a

subsisting contracts only?

We

us wholly arbitrary.

pose the

article,

where

spoken of are

seems to

distinction

see no ground for

it.

Sup-

uses the word debts, had used

it

the word contracts, the sense would have been the

same then that

it

now

is

but the identity of terms

;

would have made the nature

of the distinction

contended for somewhat more obvious.

Thus

the clause would read that no state should

now

altered,

make any-

thing but gold and silver a tender in discharge of contracts,

nor pass any law impairing the obligation of

contracts ; yet the

of these expressions

first

been held to apply to

This shows the consequence of

sisting contracts only.

what

is

now contended

for in a strong light.

would not

alter the sense

could not be sustained,

if

may

tender laws

;

and an argument that

such substitution were made,

We maintain, therefore, that

cannot be sustained now. if

not be

neither can bankrupt laws be

made for future debts, made for future contracts.

All the arguments used here

may

be applied with

equal force to tender laws for future debts. said,

for instance, that,

It is cer-

the word contracts for

tain that the substitution of

debts

would have

contracts, and the last to sub-

all

when

it

It

may

be

speaks of debts, the

Constitution means existing debts, and not mere possibilities of future

vested rights

;

debts

and

;

that,

that the object if

a

man,

was to preserve

after a tender law

FAMOUS LEGAL ARGUMENTS.

r04

had passed, had contracted a debt, the manner which that tender law authorized that debt to be

in

dis-

charged became part of the contract, and that the

whole debt, or whole obligation, was thus qualified by the pre-existing law, and was no more than a contract to

much paper money, or whatever other article might be made a tender, as the original bargain expressed. Arguments of this sort will not be found deliver so

wanting

We great

tender laws,

in favor of

arguments

similar

in favor of

if

the court yield to

bankrupt laws.

have already endeavored to maintain that one political

object

would be defeated

As

prevail.

if

intended by the Constitution

were allowed to

this construction

an object of political regulation,

it

was

not important to prevent the States from passing bankrupt laws applicable to present debts, while the power

was

left to

them

in

regard to future debts: nor was

it

at all important, in a political point of view, to prohibit

tender laws as to future debts, while

it

was

yet, left to

the States to pass laws for the discharge of such debts, which, after

tender laws. view. offer,

It

all,

are little different in principle from

Look

provides that,

if

law before the court

in this

the debtor will surrender,

or tender to trustees, for the benefit of his cred-

itors, all his estate

from

at the

all

and

his debts.

If

effects, it

he

shall

be discharged

had authorized a tender of

anything but money to any one creditor, though

it

were of a value equal to the debt, and thereupon pro-

:

FAMOUS LEGAL ARGUMENTS. vided for discharge,

Yet

is

it

made

would have been

it

clearly invalid.

maintained to be good, merely because

for all creditors,

lent to a shilling in the

shows again, very failed of its

pound

if

having

uniform medium of payment,

it

recapitulate

First.

and lish

its

This

terms prohibited

in

all

pains to establish a

has yet

left

the power of discharging debts as they

without any payment at

all

not be equiva-

the Constitution has

much

tender laws, and taken so

may

of these debts.

how

clearly,

purpose;

it is

and seeks a discharge from

debts; although the thing tendered

To

105

the States

may

see

fit,

all.

what has been

said,

we maintain

That the Constitution, by its grants to Congress prohibition on the States has sought to estab-

one uniform standard of value, or medium of pay-

ment.

That by

Second.

like

to provide for one uniform

when they Third. first

loses

are

to

means

mode

it

has endeavored

of discharging debts,

be discharged without payment.

That these objects are connected, and that the

much

of

its

importance

if

the last also be

not accomplished. Fourth.

That reading the grant

to Congress

prohibition in the States together, the

and the

inference

is

strong that the Constitution intended to confer an exclusive power to pass bankrupt laws on Congress. Fifth.

reaches to

That the prohibition all

in

the

tenth section

contracts, existing or future, in the

same

FAMOUS LEGAL ARGUMENTS.

Io6

way

that the other prohibition in the

extends to Sixthly.

all

same

sectiort

debts, existing or future.

That upon any other construction, one

great political object of the Constitution will

accomplishment.

fail

of its

:

CHRISTOPHER GORE. SPEECH IN DEFENSE OF THOMAS O. SELFRIDGE FOR MANSLAUGHTER, IN KILLING CHARLES AUSTIN ON THE PUBLIC EXCHANGE IN BOSTON, AUGUST 4th, l8o6^MASS. SUPREME COURT, DEC. 23rd, 1806.

Mr. Gore addressed the court as follows

May

:

please your honor, and you, gentlemen of the

it

jury

me

Permit

ant at the bar, manslaughter. so far as

ask for your candid attention and

to

indulgence, while

I

who

addre.ss

you

in behalf of the defend-

stands charged with the crime of

A patient investigation of the evidence,

necessary to the attainment of the truth,

it is

a strict observance of the law of the land as

from the natural character of man, as laid

down

in

our books, as

and practiced own, and as

it

it

in all civilized

shall

it is

it is

derived

recorded and

has been invariably

known

countries as well as in our

be pronounced to you by the court,

with a due regard to such arguments and observations as

may

be founded

in

reason and

common

sense, un-

biased by any previous impressions, but what shall be

imposed by the law and the testimony, constitute have a

right to expect,

and be assured

all I

that, notwith-

FAMOUS LEGAL ARGUMENTS.

I08

standing the solicitude feel

on

this occasion,

I

may

it is all I

justly

After the most mature reflections give to this cause, and as

when the whole vail on my mind

transaction

cannot but

I

have been able to

will

appear to you

exposed,

may

1

cannot pre-

how-

issue,

be to the public justice

freedom and character of

feel

my client;

provided

own real and intrinsic merits. some apjirehension from the vari-

the cause be decided on I

is

it

however interesting to the prop-

of the country, and

Yet

trust

doubt as to the

to raise a

ever important the event

erty, the

I

be presumed to

have even a wish to obtain.

its

ous measures taken to preoccupy the public mind, nor is it

surprising that

I call

to

mind the

should be thus apprehensive,

I

cruel, unjustifiable

and

when

illegal

con-

duct which has been resorted to through the newspapers, to influence the judgment, to inflame the passions,

and cause such an agitation through the whole

community, that where the

its

rights of

effect

all

might be

felt

even here,

require that justice, assisted

the calmest deliberation, should alone preside.

should be banished everything that can tend to

move

by

Whence stir

or

the passions, where every feeling which can dis-

turb the judgment or influence the imagination ought to be extinguished, and no impression admitted but

from the unerring voice of truth and of law, which are the same to

all

men and on all

to the supplications of

mere

occasions, which bend not distress,

because extreme

or deplorable, nor the clamors of the few, or the

many.

FAMOUS LEGAL ARGUMENTS. however .overbearing

power or

in

IO9

how-

terrific in threat,

ever eager and violent in their calls for the sanction of

own

judicial authority, or their

wild and intenfiperate

decrees. It will

not be strange that

like apprehension,

I

something

should

something

dismay when

like

hold the effect of this incitement

feel

in

the

immense

I

be-

multi-

tude that throng around, and the crowd assembled this court.

IVlany,

in

no doubt, are brought here by the

most laudable motives, on a case the most solemn, affecting an individual in the

most tender

ing every interest that can be dear to man.

here with other views,

am

I

part, involvIf

any be

sure they have seen,

I

am

sure they will see nothing in the conduct and decision of this cause, but

what

convince them of this

will

fragable truth, that the liberties,

life,

irre-

reputation and

property of every man, essentially and mainly depend

on the impartial administration of justice; and this true at

all

times and on

all

is

occasions, whatever passion

contrary, or urge as an

may whisper to the exception. On the impartial

administration of justice,

I

or prejudice, or party spirit

and on

all

itself,

repeat,

depends

occasions the liberties,

property of man, and

in

life,

at all times

reputation and

the very best of times,

it is

the best reliance, and only solid foundation for the rights of all

men.

In evil times, which

comniunity,

it

will

sooner or latter befall every

be found the only protection

for the

no

FAMOUS LEGAL ARGUMENTS.

possessions of the rich against the grasp of

and the violence and shield

of the profligate

for the

tjie

;

poor and oppressed

rights of the

may we

against the insolence of wealth and power; therefore indulge the hope, that

needy,

the only safeguard

all

not

men, of whatever

sect or party, persuaded of this truth, which will be

found the more apparent, the more

it

is

reflected on,

will bring to the altar of public justice their passions

and prejudices however warmly they may have excited the one, or closely they

may

have clung to the other,

as a tribute and willing sacrifice for their

own good

and that of their country.

From the nature and circumstances of this case, known as they were or would have been, at the moment of this dreadful catastrophe, which we all deplore, from the age and relation of the deceased to the cause which

produced inquiry against

the, fatal event, the subject of

— the most my

our present

made The deceased was young, just

unfavorable conclusions were

client.

emerging from a state of pupilage, to a state of manhood, glowing

in all

strength, to behold

the

bloom

of

youth and pride of

him of graceful and

well propor-

tioned form, of athletic muscle and of nervous arm, in a

moment

stretched lifeless on the ground, his heart's

blood gushing

in

copious streams from his manly face

and heart, called forth the commisseration and regret of every beholder.

These

feelings almost as instantly

changed to resentment against him who was supposed

;

FAMOUS LEGAL ARGUMENTS. to have done the deed

thousands,

who saw

—

Ill

hundreds,

for of the

may

I

say

the last part of this tragic scene,

there are not ten, perhaps not

who saw

five,

the whole

imposed on

transaction, and witnessed the necessity

the defendant, with which he could neither equivocate

nor compromise, of preserving his own

expense of him who assailed

instant,

of

the

and catching the contagion of other men's pas-

may have

sions,

even of

yet,

some hurried away by the impulses

these,

every

at

life

And

it.

surrendered their judgment to their

emotions, and have joined with others

in

the general

execration of the deed, and blaming the conduct of the

defendant, have found

apology

for this strange

by assuming the spill

they found

thought

or

an

abandonment

of their reason,

man

can innocently

doctrine, that no

This

the blood of another.

a position unsup-

is

human or divine contradicted by man and the very purposes of his creation. contend, and I have too much respect for those

ported by any law,

;

the nature of I I

shall

address, to doubt of proving, that every individual

has not only the right, but his

own

life

assaults him. in

is

at every hazard

The

in

duty bound to defend

and expense of him who

principle of self defense

the nature and the constitution of man.

pensable

to,

and inseparable from

is

founded

It is indis-

his character.

It is

not derived from books, nor from the institutions of civil

society,

created with

though they confirm us, co-existent

with the

it.

It is

first

born and

germ

of

life

FAMOUS LEGAL ARGUMENTS.

112 conceived,

felt,

and apparent

dawn

in the first

and continues the same through

all

the stages, relations

Without

and conditions of human existence. right,

and without

of being,

this

exercise, whenever the occasion

its

arises,

man

could perform no duties and enjoy no

rights.

He

could not discharge even those duties

imposed on him by a state of nature, neither could he perform those duties created by, and incurred in a state of society.

If this

self-evident that

none

quence indisputably a right, but self,

be true, and that

will or

own

life

by

all

so

the conse-

has not only

bound

to defend

and pro-

the means in his power, at every

hazard and expense of the

and that whatever the able not to

it,

man

is, is

duty, a duty which he owes to him-

is in

society and his maker,

tect his

can deny

follows, that a

it

life

results

of

him who

may

institutions of civil society are

they are imput-

be,

him who imposed the

assaults him,

necessity.

made

The

not only for the

whole, but for every part, as well as the whole, and to confirm those rights derived from nature, and which are necessary for the performance of those duties im-

posed on man by the laws of that

The

first

ernment

civil

and fundamental principle is,

that

in

society itself.

every free gov-

obedience to the government and

protection to the subject are reciprocal, and whenever statutes are

made

to abridge so essential

and natural a

right as that of self-defense, they are on this condition

implied, as strongly as

if

expressed

in

language the

^

most

FAMOUS LEGAL ARGUMENTS.

II3

government can and

forcible, that the

laws afford complete and perfect protection.

and subordinate defend by restoration

rights

the subject

by

its

The civil

forbidden to

is

because the laws of society hold out

force,

deprived of them, or a

if

will

the injury sustained by their

full

indemnity for

Now

loss.

life

once

taken away cannot be restored, and for the privation of being there

is

no indemnity.

follows, therefore,

It

man

that society acknowledges that every

and bound to protect cannot do

it

the

him who

life

of

his

assaults

impracticable would

demand

of a

when the

own

life

for him, at every

man

uplifted

his days, to sink

it.

be that

ordered

the government

hazard and expense of

Vain and absurd, nay, statute

which would

to wait decision of a court of law,

hand

him

of violence

was ready to end

beyond the

into the earth, far

reach of any earthly tribunal.

laws of

when

is

I

have said that the

society admit and confirm this right of

civil

self-defense.

They

stop not here

tions of civil

taking the his

house

life

of

life

in the

night. shall

mite of property. life

institu-

man in who shall attempt to enter They justify the taking the

attempt to rob of the smallest

The law excuses

the

man who

of another on an apparent,

real necessity of I

The

they go further.

of another,

him who

take the

;

society authorize and justify a

shall

though not

defending his own.

wish to bring before you the single

fact,

the circum-

FAMOUS LEGAL ARGUMENTS.

114

Stance of wearing a pistol, distinct from any relation to

the particular state of the defendant, or the reason

which, had the law been as

would have this sort.

There

man

is

pretended, might and

wearing an instrument of

in

no law, written or unwritten, no part

is

common

of the statute or

denies to a

him

justified

law of our country which

the right of possessing or wearing any

kind of arms.

I

free society a

man

say there is

is

no such law, and

every

in

do that which the

at liberty to

law does not interdict, nor can the doing that which not forbidden be imputed as a crime. again said, as pistol

is

it

else,

it

may

evidence of malice.

make

it,

be lawful to possess

If

it

it

would be unjust

in

into an act criminal in the

a justifiable

the

unconnected with anything

evidence to change another act, lawful in

ought not,

be

has been already, that possessing a

and wear such an instrument, highest degree to

But

is

and unlawful.

itself,

For instance,

it

opinion of any court or jury, change

homicide

into

manslaughter,

man-

or

slaughter into murder. I will

cases.

attempt to

of every sort

them.

illustrate this

Every man has

by putting one or two

a right to possess military

and kind, and to furnish

his

rooms with

Suppose a man occupying a house thus

nished, a neighbor

comes

in,

arms

fur-

and from some warm con-

versation an affray ensues, the owner glances his eye bn his sword, snatches his neighbor.

But

it

from where

it

hung and destroys

for this possession

it

would,

I

pre-

;

FAMOUS LEGAL ARGUMENTS.

IIS

sume, under such circumstances, be manslaughter

;

can

that possession be so tinctured with criminality as to

render this crime of manslaughter, murder?

If.so,

do

but alter the case.

Suppose the

visitor,

not the occupier of the house,

same

to cast his eye on the sword, and to use the

strument

in the destruction of his

be guilty of manslaughter only? mitted by one

man would

in-

opponent, would he

The

like

fact

com-

then, be murder, and

by

Can the mere circum-

another only manslaughter.

stance of the not being owner of the instrument used,

change the act from murder to manslaughter? Further, a

man about knowing

robbers, and

who attempts

to travel a road infested with

it is

lawful for

on the road he

is

him

to

kill

another

arms himself with a

to rob him,

attacked,

pistol

by a person who means to

rob him, on which, in the exercise of his right, he uses his pistol

and destroys the

life

of the aggressor;

if

the having

a pistol with him be an argument against him, will not that which was a lawful act

prove

it

tion to supply himself with

him

become an argument

to

unlawful, and merely from having the precau-

to carry

?

what the law authorizes

Again, suppose a

man having

occasion

to travel a road infested b^ robbers, and, for the pur-

pose of defending himself and his property, that he provides himself with a pistol

;

on the way to the road,

or on the road, or on his return from

person

who

it,

he

is

met by a

attacks him" without any intention of rob-

FAMOUS LEGAL ARGUMENTS.

Il6

bing, but with a view of assaulting his person only,'

makes an attack with

so

much

violence that his

brought into imminent hazard, on pistol

and destroys

this,

Shall

his assailant.

life

is

he uses his

you draw, from

the fact of his having a pistol; for the just and lawful

purpose of defense against one sort of violence, and using

it

to another equally just

and

lawful, although

not the object of his being so provided, an argument to

A

turn justifiable homicide into the crime of murder?

doctrine which leads to such absurd consequences can-

not be founded in truth or justice, and principles that this cause

quality of every act

and design

So says our

is

on these

The

must be determined.

must be according to the intention

of the agent at the

intention and design that you of the act, not

it

by the manner

moment.

It is

by

this

must decide the quality doing

of

it,

or

its

event.

and so say the laws of God and of

law,

For should a man have an instrument of death

reason.

for an unlawful purpose,

and be compelled to use

it

for

one lawful and

would be the extreme of

in-

by an unlawful

in-

just, it

justice, so to tincture this lawful act,

tention,

which was never executed,

as to render that

criminal which was just and right in

itself.

For

in-

man armed for the purpose of a duel; way to the place of appointment a per-

stance, suppose a

he meets son

who

in

the

attacks him, and in defense of his

the pistol would

make

own

life

Can you say that the having

destroys the assailant. it

a crime

?

If

you can say so

it

FAMOUS LEGAL ARGUMENTS. would be to confound every principle

II/

law and

of

you would decide a lawful and

just act

to

be criminal merely because an unlawful act was

in-

justice

;

tended, which could at the worst be but a misdemeanor. I

draw from these premises

from the circumstance of him.

had

with an intention that was lawful,

an unlawful quality to possessed it

Mr. Selfridge

against

having a pistol about

his

For

cannot be of the smallest weight.

It it

it

for

it

will

it

if

he

cannot give

homicide.

this act of

any other purpose not

for a lawful end,

you

this inference, that

cannot make any conclusion

lawful,

If

he

and used

not alter this lawful act.

If

then you shall be satisfied that the homicide committed was either

justifiable, or excusable, self defense, all

presumptions which

having a

may

arise

from

Mr. Selfridge's

pistol with him, are totally destroyed, for pre-

sumptions are resorted to only

in

Wherever there

press testimony.

the absence of exis

express evidence

presumptions are necessarily excluded will

go into the wide

from

all

otherwise you

uncertainty,

field of

have certainty to rely on.

;

when you

then you are satisfied

If

circumstances which happened at the

of acting, that

it

further inquiry

was a lawful act is

moment

of self defense, all

much more

precluded, and

presumption or conjecture of unlawful motives,

any preceding act. This is a day of anxiety and and

of interest to his counsel

;

solicitude to

yet

I

my

can say that

so

all

from

client, it is

a

FAMOUS LEGAL ARGUMENTS.

Il8

day

of

humble hope and

tranquility

;

day

a

con-

of firm

fidence in the truth and justice of his case, for

it is

on

these that he must depend for his acquittal, and on these alone does he wish to depend. I

should say, this was to him, a day not only of con-

sideration, but of joy,

enter the heart of a

if

joy could be presumed ta

man who

for

more than four

months has been immured within the damp walls of a

when his constitution demanded free and open air, who required liberty for the discharge of the usual duties of life, but who felt himself at that time subject prison,

to the most unfounded calumny, yet would not from his respect to the laws of his

country reply

he could have replied, he did not.

No

;

for though

speeches were

made, no observations were addressed to the public, except to request that they would not prejudge hi& cause, but wait patiently for the time

have

and

it

in his

power

facts of his case

by

trial

his country,

the jury, are

;

and

ing to depend for it is it,

my

duty, and

to state ;

fa-irly

when he might

to the world the

which country, you, gentlemen of

now on that law that he is acquittal. With respect to the it is

I

when

that

is

;

to ascertain

what

done, to state the

it is

in the case,

facts, that

apply one to the other, and come to a just

law that

I

will-

law,

have no disposition to go beyond

to state the principles as they have been read to

from the books

law

when he would put himself on

read to you

is

you

issue.

you and

may The

not of this day or of recent

FAMOUS LEGAL ARGUMENTS. date.

founded

It is

Grotius says that

consequence, and loss,

the principles of

in

could not exist.

a person be in danger of

if

be even doubtful

it

may be

or

life,

especially one of the highest

and there be no probability

criminal person

We

man

it

member,

losing a limb, or a

the

nature and

in

and without

society,

II9

if

he can survive

of avoiding

the

it,

lawfully and instantly slain.

then come to Judge Foster, one of the ablest

judges that ever sat on a British bench

may

that the injured party

:

He

tells

you,

repel force with force, in

defense of his person, habitation, or property, against

one who manifestly endeavors, with violence and prise, to

cases,

he

commit

felony

upon

not obliged to retreat, but

is

adversary,

known

a

till

may

pursue his

he find himself out of danger; and

the conflict he happen to

kill,

sur-

either; in these

such killing

is in

if

,in

justifiable

self defense.

You have the same who was one of

doctrine laid

down by Lord humane of

the best and most

Hale,

judges, as well as one of the most devout Christians

that ever appeared.

the same doctrine

;

Both he and Hawkins support

and

in

Hawkins

it is

further said,

if

the party assaulted can not conveniently and safely retreat, it

is

and

if

he

kill

the assailant to avoid this beating,

justifiable homicide.

This

is

the law from those

writers.

The next been

is

Blackstone, whose doctrines have never

controverted.

He

tells

you,

that

the

party

FAMOUS LEGAL ARGUMENTS.

120

assaulted must

as

flee,

far

assault will permit him, for

to allow

him

his

or enormous

life,

he

is

fiable

of

is in

not to wait

right to

may

bodily

fierceness of the

be so

fierce as

harm, and then

He

kill his assailant.

on the question where a man

as the

not

to yield a step without manifest danger of

may

defense he

it

being

life

in

in

his

does not put

it

danger, but says, that

danger of any enormous bodily harm,

till

the case has happened, but has a

This forms the law of justi-

kill his assailant.

homicide, and

is

the doctrine of universal justice,

as well as of our municipal law.

Thus, gentlemen,

I

have shown from the books the

principles that govern in relation to justifiable homicide.

Having stated the law reflection

it

as

I

conceive

which have been read, and as given to you by the court, facts, for

it is

my

have appeared In doing critical

in

this,

I

will, I

presume, be to state the

it

duty only to state the

facts as

they

evidence, without arguing upon them.

although

I

do not mean to go into a

examination of the testimony you have heard

their veracity, yet there

I

on

now come

from some of the witnesses, nor

some

to be, as

it

be found to be supported by the books

will

of

is

in the least to question

a fitness and propriety that

them should be

laid

mean Mr. Lane. And though

I

out

of

the

way.

have not the slightest

intention of impeaching his character, yet

it is

manifest

from the whole current of the testimony delivered, that

;

FAMOUS LEGAL ARGUMENTS. Mr. Pickman must have been well as the other witnesses

121

and Mr. Lane, as

right,

who were exarhined

in

sup-

Because Mr. Lane

port of his evidence, mistaken.

says that the transactions he testified to were on the brick pavement, as Mr. Pickman in the

when all the other witnesses, as well who was with him, say the scene was

middle of the

this point.

It

street.

I

shall say

no more on

would be wasting time to suppose you

can attach the least weight to the testimony of Mr,

Lane. At

this point

Mr. Gore reviewed very minutely the testimony

of the various witnesses in the case. I

now come

to the motives and to the conduct of

defendant on this unhappy day.

you are

If

of opinion

that there was no felonious intent on his part, at that

him guilty

time, then

you cannot

because

must be committed with

If

it

find

of manslaughter,

a felonious intent.

there were no felony in his mind, no crime in his

heart, he

must be decided by your verdict

to be an

innocent man. I will

You

now

trace the conduct of Mr. S. on that day:

find there

had been a

which he was by the desire

suit

out an execution, and deliver Capt. Ingraham

is

prosecuted by him,

of Capt. it

to

positive that he

in

Ingraham to sue

him on 'Change.

told the defendant

on Saturday or Sunday evening to get the execution and that he himself went twice to the Exchange for the purpose of receiving

it

from Mr. Selfridge.

You

;

FAMOUS LEGAL ARGUMENTS.

122

why

have therefore the very reason

went

there;-

fession,

it

when

in

common

the

defendant

the

practice of his pro-

would be natural to go on the Exchange

the general course of business

but here

;

is

in

a particular

by appointment

piece of business to meet a person

there can therefore be no doubt that he went there for that purpose, and for that only.

From

the testimony offered you will further find,

and particularly by the evidence of Brooks, that he clear Mr. Selfridge's in

his

observed

.and

hands were behind him, and not

Mr. Brooks stood at Clark's

pocket.

Mr.

from

Selfridge

He

of his entering State street.

shop,

moment

the

therefore must have

Some

seen the position of his arms best.

of the wit-

nesses suppose that his hands were in his pocket

was a mistake that might easily a full

view of

his

is

body.

It

;

this

from not having

arise

would be

difficult in

some

kinds of coats which have the pockets behind, to ascertain

whether the hands were actually

but Brooks, then

in

who saw him

him

;

first

in

them or not; the front, and

the rear, must be the best qualified to deter-

mine what was the actual hands.

pass

in

Irwin

tells

of the defendant's

situation

you that

that in this position he

his

hands were behind

came down the

street,

but that when Austin came out from the sidewalk, Mr. Selfridge held up his

left

hand

as

if

to

guard

took his right hand from behind him, put

it

his head,

into his

pocket, drew out a pistol, extended his arm, and fired.

FAMOUS LEGAL ARGUMENTS. It is

but

fair to

draw

1

when

this conclusion, that

23

wit-

nesses testify positively to a fact, which other persons

might not have seen, but which

is

neither contradicted

by

by, nor contradicts the testimony given

might have escaped the observation of Because

you do

if

others, to

what was seen by some of the witnesses

believe that

this,

you give

the others.

credit to each party

without supposing either to have sworn

falsely.

The defendant was going down State street, not only on his own business, but on a special engagement meet a

to

True, he had notice that some per-

client.

son was to be hired to destroy or attack him.

It

may

have been said that he could have gone to a magistrate

and obtained the protection security

keeping the

for

would have been a could he do?

you,

it

done

If

fair

of the law,

peace.

I

and have taken

agree that

answer to the question

Mr. Cabot had said, Austin

is

of,

this

what

to attack

was, under such a circumstance, his duty to have

so.

But

it

was not so

said to him,

it

was merely

mentioned to him that some person was to be employed to destroy or beat him.

He

had

it

not then in his power to avail himself of

the protection of the law by taking security, for he did

not

know by whom he was

to be assailed.

It

became

then, as the laws of his country could not afford protection, a duty in

the means

in his

him

power.

which he had the

to protect his

The

pistol in

own

life

him

by

all

particular purpose for

his

pocket

I

know

not.

FAMOUS LEGAL ARGUMENTS.

124

What fact

was

it

that the defendant with a pistol in his

this,

is

But the plain

not fully in evidence.

is

down to the Exchange on business, and was met by a man coming upon him like a person pocket was going

attacking a wild beast

a blow was struck on his head

;

which would have fractured his skull had for the hat

What

which he had on.

not been

it

did nature, what

did law and reason prompt to do on such an occasion?

Was

it

not to

make use

defend himself?

Let

You have

means?

state, his total

means

of every

me

want

of

here ask what were these

muscular strength.

have got out of the way

run;

it

he could

in

to

heard accounts of his debilitated

not have defended himself by his hands

You have

power

in his

;

He

could

he could not

;

he was unable to

for

fly.

evidence that Austin was on the

not then

have even turned

without receiving two or three

round

perhaps

blo\vs,

fatal

ones.

What do

in

then could_hedo?

defense of his

life.

That'only which he could

The only remaining

thing he

He

had to do was what he was compelled to do.

took

his pistol

from

one blow,

killed, as

assailant,

who would have killed him. This is the make to the charge against Mr. Selfridge.

his pocket,

and

after

having received

he was receiving another from the

defense^ we

This we contend to be the legal and proper one, of justifiable

homicide to preserve his own

be unwarrantable, our defense

is

gone.

life.

But

if

If this

nature,

FAMOUS LEGAL ARGUMENTS. reason,

if

defend his

make use

of

every one, that

in

assailed

is

by a After

say he struck it it

his pistol

;

I

me

appears to

this

was

must

true

dreadful

he did not.

by

Mr.

done,

his hands.

from the

say, that

testi-

But allowing that

was natural that he should do it is

this to

of violence, or

by holding up

Selfridge defended himself

did,

power to

in his

ruffian, to this

by the hand

the verdict of a jury.

mony,

means

the defendant, without reducing

alternative, of perishing

he

the

all

and person, you cannot adjudge

life

have been unlawful

Some

when

instinct impel every created being

if

attacked, to

I25

He

so.

threw

but whether at the deceased or not,

;

does not appear.

The

conflict over,

like

no violence was seen on the part

Nothing barbarous, nothing even

of Mr. Selfridge.

He went

anger or rage.

forward as

out,

who

is

defendant,

know what

I

I

have done, and

to the laws of

When

the man.

my

mean not

am

Some

cried

?

" I," said the

to

go away.

the rascal that has killed him

"am

exhausted,

if

and leaned against Mr. Townsend's shop.

I

ready to answer for

it

country."

other persons, seeing a crowd assembled, and

violence talked

of,

sending for the

advised him to

retire.

officers of justice,

He

ready to answer to the laws of his country, offended against them. Bell be informed

He

guilt,

off,

if

he had

desired Mr. Bourne to let

where he was to be founds

the conduct not of

went

that he might be

This was

but of conscious innocence.

FAMOUS LEGAL ARGUMENTS.

126

attempted to be done away by saying, that he was

It is

have dined with Mr. Bell

to

especially a

but could

;

lawyer, after an

of

act

any man,

this sort,

have

without

inter-

imagined that he might take

his dinner,

ruption, in a public house

There can be no doubt,

therefore, that he told

?

where he was to be found by True, he went away, but

the sheriff of the county.

not to

fly.

It

was

in

that awful

moment,

as in this, that

he appealed from the passions of the people to their

judgment, from their imagination to their reason, from their

feelings,

to

their

sense of justice,

from their

You, gentlemen of the

violence, to his country.

jury,

are that country.

not possible to conceive any motive to do this

It is act,

but what arose from necessity, imposed at the very hardly

evidence, that Mr. Selfridge

instant.

It is

knew

unfortunate young man.

If

this

in

there had been any feelings of revenge to gratify,

would he have gone on the Exchange to indulge them ? No, he would have sought some other opportunity.

And what was and calm.

his behavior there

Look

?

He was

at his after conduct.

It

tranquil

was not the

result of hardness of heart, but of that conscious inno-

cence which protects the

man

from him

unpolluted with

sin,

when

every friend

terror

and dismay whispers comfort and consolation to

his soul

;

flies

for the heart

;

which

in the

hour of

which knows no crime, can be

tormented with no remorse

FAMOUS LEGAL ARGUMENTS. This, gentlemen, I

am

is,

believe, the

I

12/

whole of our

story.

not permitted, by the rules of the court to go into

argument on the

my

not what are

facts.

I

have barely stated the law

notions of

but from the books.

it,

;

I

took special care not to state the case before the wit-

For

nesses were examined.

it

my

was not

meant

to exaggerate or diminish.

I

the ground of the evidence

itself,

to

and to

wish either

place

any appeal to the passions, your minds open the

fair

impressions from the testimony

tempted to what they

Having

recapitulate.

testified, I

this state of the case

have done I

am

said

all^the

on

it

leave, without

to receive

I

have

at-

nothing but

duty which

at liberty to perform.

in I

therefore leave the defendant with you, barely stating

my own

conviction, as a lawyer, a Christian,

that he has committed

no

law of society, of religion, or of nature. not, against the law of society,

I

laws of religion,

the

I

That he has

bottom myself on the

That he has not

authorities which have been read.

against

and a man,

offense, either against the

infer

from the duty

which every created being owes to Him, who

in his

beneficence, brought us into existence, to defend

by

all

means

in

his power.

Not

nature, for whatever theorists, or speculative

say to the contrary, yet,

whether a man must

fall,

when

him whether he must

God, to

religion,

;

men may

the alternative arises,

or whether

assaults

life,

against the law of

it

must be he who

sacrifice all his duties to

and to society, or put to death the

FAMOUS LEGAL ARGUMENTS.

128

man by whom he

is

assailed, nature

would

assert her

prerogative, the aggressor must die, and the innocent

man remain Verdict

alive.

—Not guilty.

JAMES SULLIVAN. SPEECH OF THE ATTORNEY-GENERAL IN THE TRIAL OF T. O. SELFRIDGE FOR MANSLAUGHTER IN KILLING CHARLES AUSTIN ON THE EX-

CHANGE IN BOSTON, AUGUST 4TH, 1806— MASS. SUPREME COURT, DECEMBER 23D, 1806. Mr. Sullivan spoke as follows

May jury

it

:

please your honor, and you, gentlemen of the

:

It is

my

official

duty to close

of the government.

If

this cause

can perform

I

on the part

this

duty by a

simple, accurate and intelligible arrangement facts,

of the

and a just and pertinent application of the legal

principle I will

make

by which they are governed,

shall be satisfied.

I

not play the orator before you, or pretend to

a speech.

If I

were capable,

I

would not do

it

on

this occasion.

Circumstanced as induce

me

to

I

am, nothing but

undertake

reward could engage repeat

it,

but the sense

me I

the in

task.

my No

the cause.

have of

my

duty could pecuniary

Nothing,

official

I

duty and

a compliance with the public expectation, could induce

me

to appear this day before

But

I

you on

this

occasion.

thank God, that through a course of what

nt^

FAMOUS LEGAL ARGUMENTS.

I30

be called a long

my

have had firmness to do

life, I

when 1 had a duty The prosecution

of this cause on the part of the gov-

ernment has been conducted

in

every respect similar to

prosecutions in other cases on like occasions. it

was

at

street, life

one of our fellow

said that

he-

citizens, in

When

the open

noon-day, had undertaken to destroy the

of another,

was necessary

it

What

authority he did it?

law

duty

to do.

had

by what

to inquire

legal process or warrant of

conduct of such consequence to the

for

public, as well as to an individual citizen? Is there

any cause

of

happened, he should

this particular as it

be

who

before a magistrate,

wonder that on the day apprehended

it

and carried

exercised the same power in

he would have been obliged to do had

been the case of either of you, gentlemen of the jury,

or of any other

The

member

of the

community.

magistrate found the killing to have been volun-

tary and not occasioned by any accident; what ought

the magistrate to do

?

Was

he to undertake to decide

the difficulties which you have to encounter in this

cause

?

killing

Was

he to undertake to say that the act of

amounted

cusable homicide

The

or

ex-

?

magistrate was bound to commit him, to take

his trial, to

which he

thing wrong in his

to murder, or to justifiable

in this

own power.

?

is

now If

brought.

Was

there any-

there was, he had the remedy

The Supreme Court upon

a habeas

FAMOUS LEGAL ARGUMENTS. him

corpus might have set

at liberty

a writ of

is

it

;

13I

and would have been granted, as by law

right,

of course,

he had applied for

if

If

it.

it

ought,

he chose to

decline the application and lay in prison, he had his

reasons for

He

it.

as a lawyer

Would

consequences.

community have had

must have known the

not every other suffer a like

to

man

in

inconvenience

with that sustained by the defendant under similar

cumstances

warm and

— certainly

Why

they would.

the

cir-

then this

eloquent address to the passions and feelings

Do

of the public?

they expect to influence you, gen-

jury,

and divert your attention from the

justness of the case

by an appeal to the feebleness of his

tlemen of the

health and the weakness of his person

the reputation of the

commitment sel it

officer,

who, ex

?

Is

it

to injure

moved the

officio,

of the defendant to prison, that his coun-

apply to your compassion and tender feelings but

so,

I

hope that

I

?

Be

shall continue conscientiously

my

to discharge the duties of

public function, regard-

less of

every other consideration, than that of the duty

which

I

It

is

owe

to the

said that a

during this

trial,

commonwealth. crowd attended the court

great

and we are asked the reason

suppose, attend from curiosity. at that a

crowd attended

Is

it

also at the

— many,

to be

wondered

Exchange on the

day that the defendant shot the young man street

?

The human mind

and when a man destroys

I

in

State

naturally shudders at death,

his fellow citizen,

it

naturally

FAMOUS LEGAL ARGUMENTS,

132

draws the attention of

men

all

to the fact.

The

in-

sinuation respecting a crowd in this court room, seems to glance at party spirit, but to

had party

spirit

anything

do with the crowd that assembled on the Exchange?

When

one

man

has struck another out of being, so far

depends upon

as being

his existence in this

world

?

Is

it

marvelous that the public attention should be on tip toe on this occasion

Is the agitation

?

than the effect of nature's law? than the

uniform

religion

Is

?

It is true,

it

principle

Is

our

of

not the voice of

anything more anything more

it

God

holy

revealed

?

when the crowd assembled in State street, made who was the man. that did this?

—

an inquiry was

The defendant boldly stood forth, and said, " I am the man " and it appears that he raised himself in the middle of the crowd to make the declaration. He had courage in the midst of this universal cry of who is the man that has done this, to stand forth and avow him;

self

the perpetrator.

But courage

is

not the criterion

unexampled bold-

of truth, this firmness of nerve, this

ness has not changed the nature of the crime, nor can it

give

us the law to govern

the

definition of offense or the rights of

depend on the character ent constitutions of

The question

men

Does the

in civil

society

of individuals, or the differ?

before you

produced evidence

fact.

men

is this,

to convince

has the government

you beyond a reasonable

doubt, that the defendant killed Charles Austin, in the

FAMOUS LEGAL ARGUMENTS.

1

manner and form as set forth in the indictment ? you are satisfied of this question, then the burthen

33 If

of

the cause has devolved upon you, and you must undertake If

it,

whatever

you are

may

be the consequences.

not satisfied of this fact, there

inquiry to be made, but

if

you

are,

is

then there

no further is

a second

Has the defendant shown you beyond a

question.

reasonable doubt, that the fact

o'f

independent

killing,

of

any previous circumstances against him, attached to

it,

was done

lawful,

The

in

such a manner as will render the killing

and excuse him from any share of

guilt

question you have before you

whether the

is,

?

defendant has proved either accident or necessity, as fully as the If

government has proved the

he has not, he

is

fact of killing?

guilty of homicide as charged.

Aas he proved circumstances

that will reduce

it

to

excusable homicide, or that he has done nothing but

what he had a tation a share

though

it

right to

of

do?

there was any premedi-

blame attaches

were but momentary

crime in that case, and slaughter, but

if

it

;

cannot be

manner

it

it,

to the

less

makes

fact, it

a

than man-

offered, that the

fact of kill-

was committed, independent of

any previous circumstance attached of

itself

the law

the defendant has proved beyond a

doubt by the evidence ing, in the

If

was excusable homicide, yet

to, if

or explanatory

the government

has given convincing proof of a premeditation his excuse cannot avail him.

;

FAMOUS LEGAL ARGUMENTS.

134

have we proved the

First,

Secondly,

fact of killing ?

has the defendant given evidence to justify what he has done, or to show necessity

it

to be excusable from a legal

Thirdly, you will inquire whether

?

we have

given evidence of such facts and circumstances previous to the transaction as will take from the defendant

all

excuse and render him guilty of a felonious

his claim of

homicide?

These three questions include every ple of

law that can arise

embrace and

the cause.

and

princi-

They

will

examination every circumstance

call into

which has been given

in

fact

in

evidence by the witnesses and

every principle involved.

This cause

is

an important one, and presents to our

discussion a question of principles.

Without Morality

fixed principles, religion itself

is

a cheat.

is

a delusion.

Politics are a source of oppression

and cruelty, and the forms of law but the vehicle of corruption, the

mask

Principles are

and

of chicane

injustice.

no other but the primordial nature of

things upon which systems are predicated for the use

and happiness of rational nature without those, ;

security and confusion

a curse, and

While

life itself

religion,

;

the world

is

all is in-

a waste, society

is

but a dream of misery.

founded on the

man

Deity, and the relation of

self

existence of the

to the Divine nature

while morals, predicated upon the connection between

man and man, as

brethren while stubborn nature, fixed ;

FAMOUS LEGAL ARGUMENTS.

1

35

on eternal and unchangeable laws, denies to yield to men the inflexibility of their principles, he himself those systems of

for

and jurisprudence, and

is

civil social

left

to raise,

government

in this society is left to

decide

for itself.

When

the sovereign will of the

civil

member

to sub-

becomes a moral obligation, crime

results

arranged these, the obligation of each mission,

community has

from disobedience

to disobedience penalties

;

must be

attached. In a

free

founded

government only,

in the

decision of

is

it

that

principles,

nature of social virtue, can claim the

what

is

right

between man and man, or

between an individual and

civil society,

without the

corruption arising from the destruction of rights and privileges,

from party distinctions, from the frauds of

chicanery, incident to fictitious morals, and cunningly

devised systems of religion and policy. I will

not spend any more of your time by such an

appeal as has been

who have preceded me.

I

put aside your prejudices,

if

ant,

to

made by the counsel

appeal on this head will not

is

will

for the defend-

not invoke you

you have any

altogether nugatory, for

if

;

an

you

obey the obligation, which devolves upon you

from your

situation, resting

on your consciences by the

sacred solemnity of an oath, you are not to be reasoned into it

as

it,

by the powers

of rhetoric

improper to attempt

it.

I

;

I

therefore consider

conceive that

it

must

'

136

FAMOUS LEGAL ARGUMENTS.

necessarily

follow

from the

circumstances

of your

be given upon the facts

situation, that a verdict will

To

according to the rules of law.

a jury, acquainted

with the obligation of an oath, a caution against being led

by

astray

their

prejudices,

against acting corruptly

wrong;

if

is

them

to caution

and against doing

willfully

their oath cannot guide their consciences, I

should despair of guiding them by anything that say. as

can

I

should have spared myself these observations

I

altogether

irrelevant

the issue, had not the

to

defendant's counsel gone largely and learnedly into the subject,

and urged you to do your duty free from the

influence of party prejudices, regardless of the clamors of

newspaper

In

writers, or addresses to the people.

government heartily

this caution, the counsel for th.e

concur.

The misconduct

of newspapers, in publishing mat-

ters relative to a trial while

deprecated false

;

reports

so ;

is

it

is

pending,

yet such are the feelings of mankind talk

will

print on such subjects where the press of those alloys,

metals

;

better

it is

though

attended

restrain

it

and also It is

free.

is

which mingle with the precious

to enjoy the

by

The

are very inconsiderable

freedom of the

inconvenience,

this

by governmental

every other country.

way

be

conversation tending to spread

all

throughout the world, that they

one

to

is

laws,

as

is

impressions ;

press,

than

to

the case in

made

in

that

the enlightened minds of

FAMOUS LEGAL ARGUMENTS. above

this jury are

source, whatever

137

considerations, arising from that

all

you may have heard out

of doors,

is

at the threshold of this sanctuary of justice, and

left

passes

by

like the idle wind,

and

no more regarded

is

than the whistling of a school boy, trudging along with

As

his satchel in his hand. will

far

the report of this cause

probably be published, the world

your decision

have heard

will

judge

how

made up from the testimony you bar they will know how to estimate

is

at this

;

the various reports you have heard, and the newspaper clamors, and artfully devised handbills

;

these, with the

papers themselves, will be consigned ultimately to the neglect they deserve.

One man

has killed another; the laws of God, and of

upon you to

our government

call

excuse himself.

There

whose on

seat

we

shall all

purity and integrity,

ment pronounced tribunals of

human

if

if

he can

appear to answer for our conduct

We

solemn day.

this

inquire,

an omniscent judge before

is

must, therefore, decide with

we expect

against

to avoid the judg-

those

who

corrupt

the

justice.

Suppose the slander, which

is

said to

be traced to

the father of the deceased, was correct, and suppose B. ,

Austin to have gone forth armed with a deadly weapori in

expectation of an assault from

Selfridge,

or his

made an

attack on

him

friends

;

that Selfridge had

young Austin did on

Selfridge,

as

and Austin the father

had, with the weapon (carried as Selfridge carried his)

FAMOUS LEGAL ARGUMENTS.

138

noon-day

killed hifn, at

a

in

crowded

would be your verdict on such a case

will give in this cause.

this the solid tenure,

This

is

mywhich you

I flatter

?

your verdict w6uld be same as that

self,

what

street,

the standard of security,

by which our fellow

citizens hold

by our

their equal right to public justice, ensured to us

Constitution and our laws. If

you think

relations, as

of our union at

home, and our foreign

Washington thought, and

as he has writ-

ten in his farewell address to our citizens, you will

engrave

your

it

on the tablet of your memory, teach

children,

and bind

it

order to perpetuate the freedom of our Is there in foreign

it

to

as a talisman to your heart, in

common country.

one of you who would engage your country

men

wars, in order to benefit a few great

who would become

the leaders, as they have been the

agitators of such a desperate

quences of war are known to never more do

I

measure

The

?

many who

conse-

me

hear

wish to see the parched earth of

country drenched with the blood of

my

fellow

;

my

men

;

the tender mothers, wives and children, flying from their dwellings into the wilderness, to

escape the foe

You, gentlemen of the jury, are friends to the peace of your country, and therein

I

cordially join with you.

address you as the lovers of your country, and there

no difference

To

in

I is

our opinions.

return again to the cause in question,

whether Selfridge's

killing

Austin

is

I will

inquire

proved by the gov-

FAMOUS LEGAL ARGUMENTS. That has been

ernment.

The second

testimony.

clearly

139

made manifest by the

question

has the defendant

is,

shown you, beyond a reasonable doubt, that the killing was done under circumstances which made it lawful, and

must have some guide, some

known

sorfie

In this inquiry

he excusable of blame?

is

longer exists.

established

A

or

confused state

and every man

his

is

the avenger of his

is

law,

society

no

nature reigns,

of

every man's arm, his art or his cunning safety,

some

settled rule,

principles,

we

own own

wrongs.

Had

I

the sentiments expressed by

brother, feeble as

day

in

aid

of such

I

am,

arms, trusting in

weapons

I

my

learned

would go forth from day to

my own arm alone, with the as my strength would bear.

Magistrates should become avoided, and the volumes of laws

become pavements

Many feelings

for the soles of

my

shoes.

things are said by professional men, in the

and warmth of debate which,

moments, they would gladly

retract.

ner and measure of resentment or

no law fixed but the there men,

nay,

a

self

in their

Upon

cooler

the

defense,

is

manthere

men ? Are men, who have a

different feelings of

multitude of

natural right, from their feelings, and a high sense of

honor to defend themselves, when and where others of less feelings is

could not do

it

this the voice of nature,

Is this sense of honor,

in

the same

manner? And

which makes the exception

and those

?

feelings, a privileged

FAMOUS LEGAL ARGUMENTS.

I40

exception to those individuals, above the rules of the

gospel?

the rule, do to others as you would be

Is

done unto, reduced

to the standard, that a juror shall

acquit the defendant,

if

he believes he should have

acted himself by the same motives, or been seduced by

the same temptation

?

a distinction

then,

Is there,

between the would-be nobleman and sweeper?

Is there a distinction

chimney

between them as to

And

the privilege of self defense?

the

the push of the

is

sweep, at the head of his comrade, to be murder in him, whilst

would-be

the

noble shall

allowed

be

with his gold hilted cane, or his elegantly mounted pistol,

in

defense of his honor, to play a secure but

mortal game, and be justified

in killing,

on a

like provo-

cation, either his friend or his foe, or, as in this case, a

man

he

is

said hardly to

know?

You

are not, then, to

determine his case by the circumstances attending

it,

but by the nice sense of honor of the gentlemen, or the distinction and

We are who

will

digi;iity

of his station in

told that there are a

with their

number

own arm vindicate

of

life.

men in

society

their rights,

and

own honor. There may be do not know them. I hope I shall not meet with any citizen who does not rely for safety on stand the guardians of their

such men, but

I

the laws of the government, and the justice of

civil

society.

Gentlemen, not being able to fathom troubled waters

;

this

abyss of

not having the courage and firmness

— FAMOUS LEGAL ARGUMENTS. to cast

away the guardianship

the laws

:

of social protection,

beyond those of the

government,

civil

yet believe the laws to be fully adequate, where

we have time

them and

to apply to

;

I

will

pose that. I am, to every possible purpose, civil

society and social security.

imperfect, for

may

and

not having an imagination that can show the

lines of security I will

I4I

human

nature

my

be slow, and below

claim to be

my own

judge

right to appeal to this

me

the law affords

ant's counsel asks

wife and

;

arm

is

so,

wishes will

I

to

The

fondly sup-

in a state of

laws

may

remedy

that the ;

but

I

not say that

avenge an

be so

will

not

have a

I

injury, whilst

The defendhome to his honor stained, by the

a complete remedy.

how he

could have gone

with his

children,

blow he had received on the public exchange from

young Austin.

man

I

of honor

put a case hypothetically

and great

irritability of nerves,

:

If

a

should

have received a blow, could he appeal to the laws of his

country without tarnishing his honor, or injuring

his family?

If

would applaud teaching

her

a'

virtuous

woman, she

his moderation, and be gratified in

children

through their future disgraced

was

his wife

to

lives;

pursue

a

similar course

no person would deem him

by the blow, though he had not destroyed

his adversary.

Should we lower our notions of honor,

and condescend to bring our feelings to the rules of

we should then have to inquire, Whether the defendant has proved beyond

law,

a reason-

FAMOUS LEGAL ARGUMENTS.

142

able doubt, that the fact of killing was committed in

such a manner as to render all

In this the tary killing?

inquiry

first

— that

Was

manner.

an accident? it

lawful,

it

and excuse him of

blame.

it

is

— Was the

to be decided

is

by justifiable

Was

it

or legal warrant?

on a sudden provocation?

Or was

on a sudden combat?

it

done

itself,

established laws of our

government?

fired before

;

but

if

whether the

you

will

pistol

was

then have to inquire

Was the assault previous to the Was it at the same instant, or Was it after the mortal stroke.

mortal wound,

In these inquiries, what shall guide you left to

Jae

of no

that fact should be considered

as important in the case,

3rd.

is,

it is

a blow was given by the deceased, you will

be much relieved

1st.

pursuance

Should you

from the opinion of the Court, that

consequence as the evidence

2nd.

in

Was it Was

and unjustifiable by the

of a design unlawful in

satisfied

death a volun-

by the weapon and

the nice feelings of a

man

?

Are you

of honor, to be decided

on his apprehensions of the moment, and to make a separate law in each case as established laws to guide fixed a system

governed:

it

you

?

arises?

The

by which the courts

— or

are these

constitution has

of justice are to

be

— these books which have been cited contain made made by the

those laws, which are laws, though they were not

by the

legislative authority

voice of the people

;

and

;

they were

this,

which

is

the highest

;

FAMOUS LEGAL ARGUMENTS.

I43

authority, has said that these books shall be the law of

For

the land.

this

I

refer

you to the sixth section

the sixth chapter of the constitution, where that

it is

of

declared

the laws, rules and practices in the judiciary

all

department, which have been heretofore adopted, shall continue to be law, until they shall be altered by the court

general

of

this

They were

commonwealth.

brought by our ancestors from the land of slavery they have been wet with the mist of the red sea, washed in

now

the waters of Jordan, and are

comfoit

in

the promised land; yes,

You young men, who have may smile at the simile,

land!

revolution,

and aged members of I

see around me,

this

know what

;

in

the promised

only heard of the but the venerable

community, many of it

through the wilderness, through almost unparalleled

our garments of

whom

was to have passed

difficulties

and dangers

those will not willingly relinquish

their principles.

Now we come to which has been will

an examination of the testimony

laid before

you and from which you

have to determine the degree of guilt incurred by

the defendant. Mr. Sullivan here went into a minute discussion

mony I

of the testi-

of the various witnesses.

now come

to a question

which

will

fit

the different

shades of guilt on the various views of the fact

;

was

the defendant in nothing to blame in this unfortunate affair?

Was

he or was he not the provoker of this

FAMOUS LEGAL ARGUMENTS.

144 quarrel? respect,

If all

he was

in

any wise to blame

the books concur, that he cannot avail him-

any circumstances, that may be

self of

up

set

cation or excuse under pretense of necessity.

there nothing to

What

that

in

show that he promoted

in justifi-

And

is

this quarrel?

the nature of the advertisement he published

is

That

a

combat of some

kind was intended by the defendant

is

very apparent.

but to provoke an assault

Several of the witnesses

?

have told you that they

expected an attack by Austin upon Selfridge as the

consequence of that publication. in

provoking

it, if

he went out unlawfully armed with

weapon concealed

a deadly

he was to blame

If

in his

pocket expecting to

be assaulted, and thereupon was assaulted under a determined resolution to shoot the person whoshould assault

him and did actually

kill

the deceased the

instant the assault was made, pusuant to a premedita-

ted but concealed design; where is his ground of excuse or justification

?

If

he has not

made out

to

you beyond

any reasonable doubt, that he was compelled to

young Austin

in his

own defense

you are bound by your oath is

guilty.

If

he

is

it is

to return a verdict that he

not guilty of manslaughter, he

guilty of nothing on this indictment of

murder cannot excuse him on If

man

;

his

being guilty

trifling assault, a feet,

what

are under a necessity to be

com-

has a right to lay another dead at his

we

is

this issue.

on every small misadventure, or

nice calculations

kill

your duty, and

FAMOUS LEGAL ARGUMENTS.

A

pelled to make.

man

145

desirous of killing another

should only go to a lawyer and inquire the degrees of assault that

would bring down murder

and manslaughter to

to manslaughter,

One man

justifiable homicide.

has a higher notion of honor than another; and the

must be the graduated

various notions of honor

upon which

a jury

This cannot be the law of our

on homicide.

guilt

country

;

some

yet

scale

to determine the true degrees of

is

by the

authorities have been read

thought

defendant's counsel, to give

it

when they were

were but partially quoted.

read, they

this coloring.

I

Grotius has been cited, to show that the right of defense

self

is

what nature has implanted

creature, without

aggressors.

some

I

in

any regard to the intention

every of

the

suspected that this gerieral rule had

qualifications,

and a

further on

little

I

find,

that

the danger to which the person that of losing a limb, or his

no

possibility

life,

is exposed, must be and that there must be

of avoiding the misfortune otherwise.

These are the circumstances that authorize him lawfully

and instantly to

kill

In 4 Blackstone, 184, that the person

should have

who

kills

the aggressor. it

upon the

assailant.

laid

another

retired as far as

can, to avoid the violence

turns

is

down in his

as a principle,

own

of

the assault, before he

There

is

a distinction in the

law between a combat and a sudden affray is

defense,

he conveniently or safely

when two men meet by agreement

a

combat

to fight.

In the

;

FAMOUS LEGAL ARGUMENTS.

146

present case the defendant appears to be within the

meaning

of the

told that there

word combat

would be an

;

for

appears he was

it

assault,

and to make

combat he went armed with a loaded same author proceeds to fictitiously

appear to

it

a

The

pistol.

say, that the person shall not

retire or to

avoid the affray, in

order to catch his opportunity of killing the assailant,

but from a

real tenderness of

Apply

blood.

shedding his brother's

this doctrine to the present case,

and

examine whether the evidence has shown to you thar the defendant entertained this tenderness in shedding

the blood of self

young Austin.

When

he armed him-

with a deadly weapon, and concealed

it

in

his

pocket, in order to

shoot down anyone who should

assault him, can

be thought he had a tenderness

against

it

shedding human blood

?

When

he declined

having a recourse to the laws of his country tection

—

for pro-

when he chose to take vengeance into his

own hands and

perpetrated this

act,

can

it

be thought

he had that tenderness which the law requires in him

who

shall unfortunately

be driven from necessity to

shed his brother's blood? If

the defendant had not written the advertisement,

this quarrel

would not have taken place

which produced

it.

It

were produced exactly

—

it

was that

appears that the consequences as

he intended they should be.

Retrace the whole of the transaction, and you

will see

the defendant bent on a bloody purpose.

But

his

FAMOUS LEGAL ARGUMENTS. counsel

tell

you that he was provoked

I47

to take these

measures, on account of injurious words spoken by B.

Suppose

Austin.

respectfully

true that Austin had spoken dis-

it

the defendant, would

of

it

the

justify

defendant's going around with a loaded pistol concealed in his pocket

The law holds that words

?

spoken or written can never

justify

either

an assault; whether

Austin was to blame or not, the defendant ought not to

have defended himself

himself,

way.

in this

the reputation of a lawyer

is

It is true

and of some to the community.

the profession,

I

that

of great importance to

As one

of

wish the order was more respectable

its members have lately rendered we should not at this day have heard

than the conduct of it

in that case

;

the outcry against

which

them,

seems

to

prevail

throughout the United States. If

any of you,

nate as to it,

kill

in firing a

gun, should be so unfortu-

one of your neighbors without intending

your hearts would be too

full,

affected, to vaunt in a confident

the

man who had done

it

;

that

more than what you intended. killed

young Austin by

some degree lected,

of

?

you had done nothing If

the defendant had

accident, he

agitation

;

must have shown

but he was cool and col-

and did no more than what he intended to do.

This was true, or pistol

and you would be too

manner that you were

If'there

why is in

did he carry with him a loaded

your opinion, any degree of pre-

meditation, he must be at least guilty of manslaughter.

FAMOUS LEGAL ARGUMENTS.

148

have,

I

think, candidly

I

examined

do.

I

my duty

so

there

;

mony

is

ought on every principle to have been

It

The

no precedent to the contrary.

had

I

to

would have been

did expect that the indictment

for murder."

and

this case,

have done only that which appeared to be

rendered

heard,

proper; not that

I

testi-

an indictment

such

wished that he should have been con-

victed of that offense, but because

I

thought

it

would

furnish an opportunity for a full examination of the

The Grand Jury having found a manslaughter only, have, in some measure,

unfortunate event. bill for

restrained us from such an inquiry, and the opportunity

we might have had

of

conducting the

bench of the Supreme Court.

Honor, the Judge who presides,

his

rect

directions in his charge

charge of a

full

factory, as

it

but

;

trial

before a

full

have no doubt but

I

you

will give still

it

is

bench, and therefore cannot be so

might have been.

I

cor-

not the satis-

ought to have no

expectation either that a wrong verdict will be given,

what

or that the verdict, be

community

into convulsions.

an inadmissible principle

in

it

may,

will

throw the

Fear of consequences

is

our judicial proceedings

;

higher motives must urge us to our duty, and the base principle of fear can If

have no

effect in the trial.

the defendant has suffered, or must

the consequence of his that one

should

who avowedly

suffer, rather

own

fault

?

And

raises himself

suffer, is is it

it

not

not right

above the laws,

than that the essential laws of

FAMOUS LEGAL ARGUMENTS. society, the first law of natural reason,

I49

and the law of

God, promulgated by the highest sanctions, set at defiance

shall

be

?

Gentlemen,

I

consign this cause to

you

to be

;

decided according to the laws of our country, which

Honor

laws his

will state to

you from the bench

Him who knows whom we must all soon

will decide in the presence of

motives,

and before

and have to answer and ;

human

race, for the

guilty.

all

you our

appear

the presence of the whole

motives on which the present

decision shall be formed.

Verdict—Not

in

;

:

:

JOHN PHILPOT CURRAN. SPEECH IN DEFENSE OF WILLIAM DRENNAN FOR THE PUBLICATION OF A SEDITIOUS LIBEL, JUNE, 1 794, Mr. Curran addressed the court as follows

My I

and gentlemen

lord,

am

of the jury

of counsel for Dr.

my

the sake of

me

prevents the court

;

Drennan, and

my

client, regret that

I

do

not, for

state of health

trespassing long on your time, or that of

for

my

heart

to stand in need of

any

me, that

tells

effort

from

if

he

is

reduced

talent, that

it

is

impossible, under the circumstances of the case, that

he can hope for any assistance from an advocate, where,

if

there

is

any danger

from what passes

in

of conviction

the minds of

from anything which has passed

him by

habit of

am

a person

I

never, to

my

life

not

;

who

to

him

his

is

am

I

and not It

may

not aided by the

are connected with

Such

a perfect stranger.

I

I

I

know

never was under the of

;

and the reason

yielded to the ordinary application to

counsel,

arise

knowledge, exchanged a word with him,

same roof with him that I

a jury,

and uniformity of pursuits.

save once in the public street.

why

must

in this court.

be a loss to the traverser that he personal exertions of those

it

was,

because

I

had

been

become

personally

FAMOUS LEGAL ARGUMENTS. defamed

for acting as counsel

who was charged

character in the world, to

my

little

professional talents

;

as

defense of another,

in

with the same

libel.

it

and

ISI

may

I feel

felt

I

be,

that

my

was owing all

that,

if

a barrister

can act so mean and despicable a part as to decline

from personal apprehension, the defense of any

man

accused, he does not deserve to be heard in any court of justice.

The indictment libel,

the base and this

is

that Dr.

Drennan did publish the

and that he did print and publish the paper with intentions there

seditious

he has pleaded

;

did he, in point of fact, publish the paper

The next upon which little is

I

shall trouble

as to the nature of the paper

seditious libel or

not

?

The law

To

stated.

and one question to be

tried

is,

?

you but very

— whether

it is

a

of libels in this country

has lately, (by the perseverance and exertions of two

men — Mr. Fox and

Mr. Erskine

—being at

last

crowned

with success), undergone a most fortunate change?

For part finite

of the court

regard and esteem.

which

I

address

To extend

would, perhaps, be as presumptious, as

my

vanity

;

but

let

me

have

in-

it

would

flatter

not by this be understood to

profess any contrary feeling.

arrogance of affecting to

any

I

that profession

feel,

I

merely disavow the

where

I

have no claim to

interest.

But, gentlemen, the law has taken

the power of

decision in those cases from the court, and vested

it

in

FAMOUS LEGAL ARGUMENTS.

152

And you

you.

are not only to inquire into the fact of

publication, but into the question of " libel or not."

Upon

the latter question

if

fact

I

fatal facility

paper

is

For

you believe

if

I

will

would advise the traverser to prepare

with a

mind

would make a

I

you have any disposition to believe the

of publication,

of

have said

will

;

say, that

I

be frank with you, and

few observations but

to receive

your opinion that the

whatever the prosecutors please to it, it

call

must be from some perversion

—some gangrene of principle, with which

dain to hold parlance or communication say, from a

it.

proud conviction, that there

;

and

will

I dis-

this

I

be no law

in this country,

when such monstrous

lowed by

and the country disgraced by such con-

juries,

facts are swal-

viction.

As

to the liberty of the press,

have heard and

I

have read of some things relative to I

am

The

truly astonished.

for expressing

it

lately, at

liberty of the press

that the passions of the governors if

bound

anyone

which is

not

merely argument, but to convey the

feelings of personal discontent against the

and

I

is

bold enough to

their duty, they

by being held up

may

government,

may be checked

tell

them they

;

over-

be tortured into rectitude,

as objects of odium, abomination,

honor, or ridicule.

Every man knows what

is

a

public

crime

;

the

maliciously pointing out grievances so as to disturb the quiet of the country

;

such a crime will never find pro-

;

FAMOUS LEGAL ARGUMENTS. tection from a court or a jury.

among

tend to "diffuse

If

the traverser did

subjects of

tfie

53

1

in-

realm, dis-

tfiis

content, and suspicions of our sovereign lord the king,

and

his

government

;

and government

his person

and

disaffections

and to

;

disloyalties to

very danger-

raise

ous seditions and tumult within this kingdom," &c., he

ought to be found guilty to acquittal.

because,

Having

ties of this

he did not, he

if

said this,

God

trust in

I

—

I

so fatal an

is

entitled

dismiss the subject

example to the

liber-

country, as a condemnation upon such evi-

dence, will never be given.

What

has Carey sworn

?

— that he was

at a

meeting

on the 14th of December; that Dr. Drennan was that the question self

was

desired

there.;

was put on ^n address; that he himpublish

to

that address

;

the

that

manuscript could not be given him, but that he should take

it

from the Dublin Journal of the next Monday.;

that he sent for that paper; a great deal of his evidence

went to proving the

Star, but that

out of the question.

rowed

to the

publication in the

there any evidence that this

society?

No.

What

was not

The question

is it ?

in

the paper

read,

and

is

therefore, nar-

Dublin Journal

was the paper read

in

Carey has told you

deed he told you the impossibility of read the address

is,

his swearing

is

;

the

— it

in;

I

— he could not swear even

to the substance, he could not tell that

it

was the same.

Coiling and twining about me, as

you saw that wretched

man, he could not prove

therefore,

this

;

all

the evi-

FAMOUS LEGAL ARGUMENTS.

154

dence on

this part

comes to

produce some address

this, that

Dr. Drennan did

meeting, but of what

in that

contained you have no evidence before you.

And,

to the publication in the Hibernian, the evidence

vague that proof

;

it

is

it

as

so

can give no aid whatever to the former

so that the evidence stops at the meeting in

Blacklain. I

asked Carey what address he was desired to pub-

lish?

He

answered, that agreed to by the society;

what proof have you that he did so?

be

will

It

in-

geniously endeavored to impress upon your minds that a general

power

traverser to Carey,

was given by the

to publish

and he thereby made himself per-

sonally liable for Carey's acts.

The consequences

man made

of such a doctrine as that a

could commit himself for any future publication,

without his privity, would be so wild and desperate, that

unnecessary to do more than offer

it is

it

you

to

in its true light.

But Carey has pinned the authority to a particular

What

publication of the particular paper read. tion are

you trying?

Are you trying the

ques-

traverser for

every possible publication which might have been sent to McDonnell's paper?

Do you

where such unlimited power

Suppose Carey

is

live

in

—

is

it

?

McDonnell's paper

—he

responsible

country

given to informers

to have taken from

a libel which Dr. Drennan never saw doctrine,

a

is,

by

not too ridiculous

;

this

and

— FAMOUS LEGAL ARGUMENTS. does

it

come

not

to this, that Carey

was

I

55

down

tied

to

publish that particular paper read in the society, and no

other

has he said then that

;

it

was the same paper

Where

which appeared

in

evidence that

was the same paper, and where

and that purpose guilty

;

I ;

the Dublin Journal

Drennan

guilt of Dr.

Suppose

it

is

the

is

the

?

were charged with committing murder,

I

had employed the

crier of the court for the

he did the act by

if

?

my

but no confession of his

So the publication

against me.

of

directions,

can

be

he

evidence

McDonnell, with

the authority of Dr. Drennan, might be evidence

that

is,

McDonnell admitted the

giving the paper to the stamp officer

admission on oath?

Is

what he

stamps to be evidence against

of

McDonnell does not not,

on

;

said' to

my

The

fact,

by

but was this a petty ofiGcer client

recollect this transaction

his oath, confirm the statement

but

;

no declaration of McDonnell's can be evidence.

argument

is

?

But

— he does

by Lestrange

and yet you are desired to take Lestrange's evidence of

what McDonnell This

may

did.

be policy, to keep the abandoned informer

haunting the slumbers of the innocent for it.

you to consider,

;

but

it is

such' a time as this proper for

In the present melancholy of the public mind,

far will it heal it

is

man

the grief which

afiflicts

society

?

how

Or, will

not rather answer the immediate and selfish objects of

those

whom

a small gale

may

waft to that point, where

;;

FAMOUS LEGAL ARGUMENTS.

156

the recollection of the country and

never

assail their ears

The

its

situation will

?

declaration that the paper would appear in the

Hibernian Journal stands on the single evidence of Carey.

he did not appear to you upon that table a

If

perjured man, believe every word he said.

was under two prosecutions charge

this

credit.

He

to rest as well on

is

summons

received a

Chief Justice of Ireland

Do you

!

What

Kemmis.

the answer

is

man, who comes to

makes

ago,

name.

this silly

Again,

not

" I

I

That he thought

?

as

to

my

he did not

next,

;

have

I

you

"

?"

Three

name

and, last of

two years

was

I

:

— he

all,

a conviction on the

not,

did

whose

tell.

evi-

Scarce ever

mere evidence

this

if

he

recollect

he could not

to be convicted?

But see what motives

under

— "I do

different things

that kind of man, on

man ought

known

informer.

it

And

was.

it

would have prosecuted or

lord's

Does he not appear dence no

sure

of words spoken

are

they had kept their word."

swore

his

Examine Mr.

was a member of the society"

know whether

as

by the Lord

mistake about the Chief Justice's

who

"

prosecution" —

tell

libel

believe, gentlemen, it?

—he could not answer — he was

this

memory

signed

Lord Clonmel's name was to

that

was

!

his

man

This

and another

for this

man has:

of an

Under

prosecution for the same crime, he has not only his

own

safety to consult, but the most

corous malice to Doctor Drennan.

avowed and

ran-

FAMOUS LEGAL ARGUMENTS. If

you give

man, you make a

credit to this

harvest for informers

1

57

fine

a fine opportunity you give to

;

every ruffian in society

and you

;

comfortable conviction, that

it

may go home far

is

the

in

from impossible

that the next attack shall be on yourselves.

Did you

ever, gentlemen, hear of a point in

perjured witness might be believed?

one

— when he says he

is

strong in our hearts as that

finger of

false witness."

the

man once

principle

God who said, " thou shalt The law of the country has

;

and

it is

not bear said that

court of if

a

not yet marked out by the law as

have soiled

commission of

a

the very essence of a jury, that

man 'appears (though a perjurer) to

is

as

convicted of false swearing shall not a

second time contaminate the walls of justice

is

had been written by the

it

if

Yes, there

The

perjured.

which a

his nature

this crime, that

cease with the jury

—his

by the

moment

deliberate

his credit shall

evidence shall be blotted

from their minds, and leave no trace but horror and indignation. 1 feel

the hardship of their situation,

and learned men a proposition. of

them

I

I

have great respect

have had

it

for

state, their private

— for some days — but

them

my from boyish my saying, that,

respect does not prevent

is

when grave

are brought forward to support such

worth

is

not to weigh with you.

for their credit to deceive you.

to control a prosecution

—

this

as officers of

if

one

It

They have no power is

commanded, they

.

FAMOUS LEGAL ARGUMENTS.

IS8

must carry ter,

it

on

and when they

;

what do they say

?

take a Httle of our dignity to eke feelings are

is

talk of their charac-

" If the evidence it

insufficient,

is

out."

nothing to you, gentlemen

What

their

they

may

;

have feelings of another kind to compensate

As

to the Society of United Irishmen,

the misfortune, from

conduct, to incur

But where it

is

my

show

much contumelious

animadversion.

their desperate purpose to be found

arm f

horrible blasphemy of their case

But

it

Is

Does

comes down to the

To make

reviling the police.

more hideous and more aggravated, you

told of their blaspheming holy,

?

their design to pull the king from the throne,

or to separate countries? ,

have had

strong reprobation of their

in the rejection of Carey's proposal to

this

I

them.

for

are

the sanctified police-=-the

prudent and economical police.

Did they suppose that they were addressing the liquorish loyalty of

a guzzling corporation

you suppose, gentlemen, that there

is

?

Or do

a collation of

custards prepared for

you when you leave the jury-box,

when they wish

excite your compassion for the

abused police?

to

But

it

is

said,

that they not only

attack existing establishments, but sully the character of the unborn militia, that they hurl their shafts against

what was to be

raised the next year.

says the flatterer to Timon.

not

know you had

shortly,

and

my

children."

first

"

What " "

"

So Gossip,"

says he, "

Nay, but

child shall be called

I will

I

did

marry

Timon, and

— FAMOUS LEGAL ARGUMENTS. then

we

So

be gossips. "

shall

159

Drennan,

this wizard,

found out that a militia was to be raised the next year,

and he not only abused the corporation but the police

and

militia.

this bar,

I

protest

and never,

have been eighteen years

I

until

this last year,

have

I

at

seen

such witnesses supporting charges of this kind with such abandoned profligacy.

were on

In one case, where

trial for their lives, I felt

men

myself involuntarily

shrinking under your lordship's protection, from the

miscreant

who

leaped upon the table, and announced

himself a witness

have remained

where it

it

in

had hoped the practice would

I

those distant parts of the country

began, but

I

was disappointed.

parading through the

capital,

and

night of unenlightened wretchedness

I is

have seen

I

feel that

fast

the

approach-

when a man shall be judged before he is tried — when the advocate shall be libeled for discharging his duty to his client, that night of human nature, when a ing,

man nal,

shall

be hunted down, not because he

but because he

obnoxious.

is

is

Punish a

a crimi-

man

in

the situation of Dr. Drennan, and what do you do

What will

will

become

of the liberty of the press?

have the newspapers

tions of

sions in

filled

with the drowsy adula-

some persons who want benefices or commisthe army here and there, indeed, you may ;

chance to see a paragraph of this kind " Yesterday

a

?

You

seditious

came on

libel,

Dr.

to be tried,

Wm.

:

for the publication of The great law

Drennan.

;

FAMOUS LEGAL ARGUMENTS.

l6o

of tHe crown stated the case

officer

in the

most temperate

and candid manner. During his speech every man in court was in an agony of horror; the gentlem^en of the jury many of them, from the rotation office, were all staunch whigs, and friends to government. Mr. Carey

—

came on

and declared he had no malice

the table,

the traverser,

and most honorably denied the

against

assertion in

his next breath.

The jury listened with great

Mr. Curran, with

his usual ability, defended him..

attention.

Mr.

Wright was produced, a bloody minded United Irish-

man

—he declared he could not say but that Dr. Drennan

was

the author of the libel;

like each other in the face.

and that

An

reply by his majesty's counsel.

He

knew

little

propriety that the jury

posed him

to prosecute

traverser's guilt, that

the types

able speech

were very

was made

in

said with the utmost

of

him., if they sup-

without a perfect conviction of the

Mr. Curran

s

great

abilities

had

been spent in jest upon the subject; that the perjurits

were mere

much

inconsistencies, the

little

gentleman having

The jury — a most worshipful, wor-

on his mind.

few minutes, and returned with a much to the satisfaction of the public."

thy jury, retired for a verdict

To

of guilty,

this sort of

language

will

you reduce the freedom

of public discussion,

by a conviction

and

if

the liberty

destroyed for a supposed abuse,

this

is

the kind of discussion you will have.

Verdict

is

—Not guilty.

of the traverser

WILLIAM

BEACH.

A.

ARGUMENT FOR THE PLAINTIFF

IN

THE CELEBRATED

TILTON-BEECHER CASE.

This famous argument lasted ten days.

His oratory

stirring passages, wtiioh are delivered in a

is full

of

manner that seldom

Regret fails to stir enthusiastic interest among his hearers. that for want of space we are only able to give his opening and closing remarks. The jury in this case after eight days deliberation failed to agree.

Mr. Beach began his argument as follows

May At

it

please your honor

last,

:

:

gentlemen, Theo. Tilton has the opportunity

of a vindication

opportunity.

in

upon by a tempest leled in severity

man whom

a court

of

Environed with

and

of (falumny in effect,

law.

It is

difficulities,

the

first

and beaten

and reproach, unparal-

pursued by the power of a

the genius of Samuel Wilkeson has discov-

ered to be the greatest

man on

all

the earth, aided

by

the organized persecution of a great church, Theodore Tilton was hounded to his ruin

The only judgment

ever passed upon his case, the only hearing ever given to

it,

was before a tribunal selected from Plymouth

Church by

this defendant, with

great care, with great

perception, with great regard to the qualities and the relations of those judges,

and before them the cause of

FAMOUS LEGAL ARGUMENTS.

l62

Theodore Tilton was

And

it

and he was condemned.

tried,

was imagined that that condemnation would be

Henry Ward Beecher.

the permanent acquittal of

It

was supposed that a private tribunal thus constituted of the friends of the accused, instructed

throughout accused

—

all its

deliberations

of the

was supposed that that judgment would be

it

and permanent.

decisive

and guided

by the counsel

But every

one saw that

Theodore Tilton was deprived of a hearing before that investigating committee,

his evidence

shut out, the

testimony of important witnesses evaded, those known to have the material and intimate acquaintance with

the merits of that controversy unsummoned, a hasty

and a snap judgment pronounced character,

and between men

in

a case of this

Henry Ward Beecher

like

and Theodore Tilton. It is isfied

;

not wonderful that public judgment was unsatit

demanded

was not surprising that the public clamor a

more thorough and complete

investiga-

tion of this

most unfortunate transaction;

and the

result has been,

gentlemen, this

trial

;

and

in

ment the great and important question upon is,

my

judg-

this trial

whether the system of influence and denunciation

and clamor which

year has invested this case,

is

upon the deliberations The question is whether here,

of

for a

to intrude itself with success a court this,

and a jury.

what

is

called the

ence of that pure

temple of

spirit of

right

justice, in

in

the pres-

and equity which

is

FAMOUS LEGAL ARGUMENTS. supposed to prevail

presence

in this

—the

163

question

is

whether the organized power of Plymouth Church,

by ingenuity

aided sel, is

to

which

is

eloquence

the

arrd

overcome that sense of

coun-

of

play and equity

fair

the spirit of our administration of the law.

this cause

by bold

to be won, gentlemen,

is

If

assertion

and clamorous appeal, and by confident and insulting predictions, If

I

yield the

palm to

my learned

adversaries.

the judgments of this jury are to be controlled by a

stream of invective and vituperation, by a repetition of scandalous and dishonoring epithets, repeated until

they have pained the ear and sufeited the taste,

I

have

neither hope nor care to influence your deliberations. I

suppose that

I

speak to men properly estimating the

and

prerogatives

responsibilities

their position.

of

Believe me, gentlemen, this power of judgment great and responsible power. control, as

my

friends

tinies of the greatest

you hold

in

To-day you hold

upon the other

preacher

in all

in

is

a

your

side say, the des-

To-day

the world.

your hands the destiny and the reputation

of this plaintiff

;

and more than

that,

you hold

in

your

hands the power of vindicating the witnesses produced

upon

this witness stand, or consigning

ishable dishonor and infamy.

whence do you derive judgment. ton, to

What

it?

It

is

them

a great

to imper-

power and

Not by any natural

right of

enables you to say to Theodore Til-

Frances Moulton, to Mrs. Moulton, "you are

perjurers;" to the two

first,

"you

are adulterers

and

;

FAMOUS LEGAL ARGUMENTS.

164

You have no place in a court of justice. man in this broad community has

infamous.

Although

no

impeached your character honored of

this

of

and veracity

the most reputable and

community, yet by verdict you

be scouted from

judgment

for integrity

among

although you stand

infamy

shall

court room, branded with our

this ?

A

"

responsibility to

fearful

such a power.

The law

has selected you as twelve intelligent, honest

and lawful men, to decide the great question involved in

this

controversy, and to

cause, freighted with these interests.

You have been

personally

by

my

you has committed this immense and permanent

appealed

to,

Mr. Foreman,

He

friend Mr. Porter.

has assumed

He

has

assumed to say that he knows what the verdict of

this

to

know

the sentiments of this jury-box.

jury will be.

I

know

the power and the influence of

the organization which has surrounded this defendant

during this

trial.

My

friend Mr. Evarts wished for the

hundred eyes of Argus; he has them, and more,

And

too.

the hundred arms of Briareus; he has them, and

has had them, and more, too. of his wishing for the gold of

And

there was no need

Midas; he has had that

too, dispensed with great liberality, with

generosity, and always placed where

best effect.

But

it

seems to

me

a

it

unbounded

will

have the

most astonishing

assumption of prophetic power upon the part of learned friend that

in a

my

court of justice, before gentle-

FAMOUS LEGAL ARGUMENTS.

men sworn

to be impartial

and

l6$

honored and

true, an

distinguished counselor, before the plaintiff

should assume to say, " gentlemen, verdict will be."

heard,

is

know what your You

I

you occupied that stand.

Sir,

avowed that you had formed opinions favorable to the defendant

in this case,

but you said

God whom you worship and

that

the presence of

in

you

that

revere,

could nevertheless decide this case impartially upon

Are you

the evidence.

to prejudge it?

who

counsel in this case

and say he knows what the verdict of Aye, that

it

will

this jury will

be ?

be acquittal of Mr. Beecher without

leaving your seats.

By what

tleman speak?

am

character,

any

Is there

can appeal to you personally,

If I

authority does the gen-

addressing gentlemen of that

gentlemen whose judgments

be carried

will

by epithet and calumny and abuse, unsupported by evidence can

;

move

if

the eloquence and the oratory of counsel

the conclusion of this jury,

of success before you, gentlemen. as Brutus

is.

I

If

to present to

I

have a

have no hope not an orator I

;

have no

plain, simple, logical argu-

you upon the proof

there be not evidence enough,

facts

I

am

have no calumnies to utter

epithets to apply.

ment

I

if

in this

enough under the ordinary administration

rules of evidence, abiding

by those lessons

and of truth come to us from the past

enough

to satisfy the

twelve impartial and

case.

there be not proven

—

if

of

of the

wisdom

there be not

minds and the consciences unprejudiced men,

I

of

want no

FAMOUS LEGAL ARGUMENTS.

l66

verdict in this case.

of the law.

if I

ask for no perversion

intelligent

judgment

of this jury.

bring to them those proofs approved by the

by the history

Jaw, justified

which

I

ask for no surrender of '^the consciences

I

and the pure and

But

want no untruthful judgment

I

Henry Ward Beecher.

against

the

of the law, those evidences

law pronounces as

even of guilt

in

the presence of

sufificient

all

convict

to

charitable presump-

name of that law, and its demand a verdict. And, gentlemen, I have to demand it. I have a right to ask you, before

tions of the law, then in the justice, I

a right

Tilton shall be disbelieved, before' Moulton shall be discredited, before Mrs.

Moulton

shall be defamed by Henry Ward Beecher

your

verdict, before the letters of

shall

be misconstrued, before the confession of Mrs.

Tilton shall be disregarded, accepted and approved as it

was by the defendant

in this case

—before

prominent and convincing elements of be disregarded sideration far

— I have a

right to ask from

more elevated and

been given to these evidences.

power have

of

my

felt its

learned friends

influence.

yet relieved, with

upon

my mind

in

all

you a con-

truthful than has yet I

know

the wonderful

upon the other

cannot say that

I

the

all

this proof shall

I

side.

am

I

even

the firm convictions impressed

regard to this case.

Where, gentlemen,

in

the history of the justice of

this country has there ever

has been presented

in this

been such an exhibition as court

room within the

last

FAMOUS LEGAL ARGUMENTS. thirteen days?

167

Have you ever heard such a storm of ? Have you ever heard a loftier

invective and abuse

exhibition of the powers of oratory than has been given

my

by both

any cause yet

my

efforts so

there

there ever been in

Why, my

"

:

The

Mr. Beecher.

there was no

;

all

Why, when

the plaintiff rested

proof

;

my

and

days to convince you of

They have given you very strong ;

he had no

;

learned friends,

the arts and the powers of oratory, have spent

thirteen

cerity

you

friend Mr. Evarts says to

he ought to have been turned out of court cause

never had

plaintiff

not the slightest evidence in this cause of the

is

guilt of

with

And

extended and so marvelous ?

learned friends say

any case."

Have

learned friends?

that,

gentlemen.

proof of their

sin-

they have given to you very strong evidence

of their

conception of this case.

adroitness

unexampled

in

our

With courts,

a

skill

they

endeavored to escape the consequences of that

and have evi-

They have resisted it by but one witness, and is Henry Ward Beecher. The amazing declarawas made by my learned friend, Mr. Porter, that

dence. that tion

Tilton and Moulton were contradicted by thirty-four witnesses.

Why, gentlemen,

it is

declaration which could have been

And it can be met only by a On the contrary, I hope to

clear

the most astonishing

made and

in

this case.

explicit denial.

demonstrate to you that

Tilton and Moulton, upon any of the material facts in this case,

have been contradicted by no single witness

FAMOUS LEGAL ARGUMENTS.

pes

except Henry

Ward

been occupied

in this case

and unimportant

terial

that

Most

Beecher.

collateral questions.

we have occupied your

recollect that

this

all

of the time has

by the examination

time,

of

imma-

It is said

when you must

long investigation, a hundred of

days, has been directed, not to the question of the

or the innocence

guilt

Mr. Beecher, but to an

of

unsustained and abusive attack upon the character of Tilton and Moulton, and the other witnesses upon the part of the plaintiff.

Gentlemen, this case

address

cannot pass to the consideration of

I

without a single further remark upon the of

remarkable

my

friend

Mr.

Porter.

and myself have practiced together

There

is

whom

I

none

in

no gentleman, feel

him

most

in

the

courts.

out of the profession, for

in or

more unfeigned esteem and respect

a

the profession whose qualities as a lawyer

more admire and see

was a

It

For thirty years that gentleman

effort.

in

respect.

I

;

I

have been accustomed to

the fore rank of professional controversy,

claiming and maintaining the loftiest honors of our profession.

And

I

am

pained and grieved that upon this

occasion he has lost that position, and appears here as

a subordinate and secondary adversary. is

no humiliation, gentlemen.

fession,

No

In that there

lawyer of our pro-

eminent even as Mr. Porter

is,

would be

dis-

graced by following the leadership of a gentleman as

eminent as Mr.

Evarts.

It

is

not that.

But the

FAMOUS LEGAL ARGUMENTS. humiliation

consists

and unworthy-

the ignoble

in

service he has undertaken, to abuse and

by

calumniate, and,

169

denounce and

and furious

fierce

from the consideration of this court. said to be theatric

was the

terrh

comes from

;

— " hollow

and

Mr. Tilton

theatric,"

who

friend Mr. Porter,

most distinguished evidences

I

is

think,

has given the

of the possession of the

Why, you remember,

gentle-

men, with what violence of gesture, with what temperance of speech Mr. Tilton was

somewhat alarming

b,e

and

and singularly enough that accusation

my

highest histrionic ability.

began to

to

epithets,

drive this plaintiff from the respect of this jury,

friend Mr. Porter

his

It

my learned

when

for,

;

was flourishing

in-

assailed.

so furiously in

fist

the face of Mr. Tilton, and in his sonorous and impressive tones crying out, " I

sent thee there,"

of

my

client,

and

I

Down, down, down I felt

me

alarmed,

to find

him there

rather

amused

of him. sitting

Porter thought of himself.

mine

this case of

was very gratify-

It

composed and unwhat

really

Well,

sir,

are

upon such arguments?

justice appealing

to the

consideration of his claims ?

And by

and

Is a

friend

to deter-

party

men

his rights, to

epithets

my

you

impartiality

equity of the law, asking from his fellow

from court

safety

at the grotesqueness of the

performance, and wondering

court

for the

looked around with some amaze-

ment to see what had become ing to

to hell, and say

some anxiety

in

a

and

a legal

be hunted

and denunciation

!

FAMOUS LEGAL ARGUMENTS.

I70

What sort of a cause is it which demands this advocacy? And how happens it that a gentleman capable of the loftiest legal efforts, a

gentleman claiming more than a

due share (and deservedly too) of professional renown, instead of a temperate, logical

argument upon the

evi-

dence, spends five days in a violent assault upon the

opposite party and his witnesses

Beecher

If

?

Henry Ward

innocent he needs no such clamorous and

is

foul defense.

If

Theodore Tilton

a perjurer and an

is

adulterer, a cold and shameless debauchee,

proven from the evidence I shall

and where

;

can be

it

gentlemen

is it,

But

question. proof, find

if

let

your recollection run, over

presence of his

demonstration

upon the

court, can stand an instant against the

honesty of defense.

this

you can the evidence which thus im-

peaches the moral character of Mr. Tilton, which

his character.

But

it is

in

the

stand in

open honor and

the necessity of this

Tilton must be destroyed, Moulton must be

discredited, Mrs.

Moulton be struck from the ranks of

honorable womanhood, Mrs. Bradshaw must be believed, Richards

others

?

have occasion to ask you more particularly that

who

must be calumniated, and

all

dis-

the

have uttered a syllable of reproach or of

fact against the character or

Beecher must be destroyed

standing of Henry

;

plished, this defense fails and

the effort of both of them

and

if

this

is

Ward

not accom-

my friends know

it.

And

— with persistent eloquence,

with an ingenuity almost devilish in

its

conceptions.

FAMOUS LEGAL ARGUMENTS. both of them have striven

171

days not to

for thirteen

demonstrate the innocence of Mr. Beecher, but to

demand

destroy his accusers, and from that

from the hands of Well, there of

a verdict

this jury.

a singular inconsistency in the

is

argument and

in

the conceptions which

man

learned

Tilton

friends indulge in regard to this case.

only a perjurer and an adulterer, a

my

of

Mr. Porter, he

who

is

not

is

most base and

infamous character, the seducer of a young trusted to his honor and care

modes

girl in-

by his wife, but according to

the cunning, adroit, subtle conspirator

has organized this deep-laid and long-prosecuted

conspiracy against the pocket and character of

Ward

And my

Beecher.

contrary,

Tracy, on the

friend Mr.

has a very low opinion

of

his

sagacity and forecast.

He denounces him

genius for blundering.

All admit that he

intellect.

My

rhetorician

him

praises

mends " the

learned

and elocutionist. his

for

Beecher says.

editorial

chair

You have

There has been no

.seen

irritation,

and

having a

is

a

man

he

is

of

a

Henry Ward Beecher

intellectual powers,

that genius which, early in loftiest

skill

as

agree that

friends

Henry

in

life,

rather comlifted

America,"

him as

to

Mr.

him upon the stand.

no malevolence, there has

been no departure from the demeanor which becomes a

man

say,

sir,

of intelligence

and honesty.

that his relation of his

by the searching

life,

as

inquiries of counsel,

I

undertake to

it

was examined

and the history

FAMOUS LEGAL ARGUMENTS.

172

which he gave

and of

of that life

attracted your confidence and

history of his acts with

this episode in

In the whole

belief.

reference

it,

to

this

domestic

tragedy, he has never uttered a word of reproach or of

censure against the

woman who

To

betrayed him.

the honor of manhood, to the honest emotions and love of his

own

nature he has been true, even under the

With

temptation of this case.

a fidelity unexampled,

with an exercise of Christian magnanimity and forgiveness which has been ridiculed in this c6urt of justice,

and before Christian men, he forgave what Henry

Ward Beecher

swears he believed he thought was the

grossest outrage that could be practised against a hus-

band and a

you that

father.

in all

If I

am

not mistaken,

I

will

show

the emergencies and vicissitudes of this

strange case, Theodore Tilton has never departed from his

manhood, from the

sincerity of his forgiveness, as

toward his wife and Mr. Beecher his

honor and

stance, until

his plighted

;

that he adhered to

word under every circum-

goaded and driven by wrongs which could

not be endured, to the presentation of this case to this court and this jury.

And why

slandered as he has been slandered

terms of the justice

done

vilest vulgarity

is ?

that

Why

and abuse

heaped upon Theodore Tilton?

?

Fabricated a charge

;

man

to

be

are all the

in this

What

court of

has he

organized a conspiracy

;

himself sunk into the lowest depths of depravity hoping to

raise

himself to

position

and character

by the

"

FAMOUS LEGAL ARGUMENTS.

1

73

destruction of Mr. Beecher, subsidizing the honesty of his friends, corrupting

womanhood,

the integrity of

suborning perjury, marshaling the hosts of perjurers into

court

this

ing to

my

— this

learned friends.

clamations

"

:

I

with devilish

of justice,

unprincipled purpose

wonder

ous Theodore has been can again be reunited

if

? "

Will you remember his ex-

how generpossible that we three

Elizabeth knows " Is

it

Theodore

?

and

skill

Theodore Tilton, accord-

is

have the worst

will

to bear.

"The

hardest part to bear."

with the

until

letters,

And

through

Beecher

Mr.

fatuity of guilt

these

all

reached the position where by his church he was driven into active hostility, through

all

the letters and declara-

Henry Ward Beecher, he bore

tions of

truthful and

honorable testimony to the manhood and sincerity of

Moulton

Theodore

Tilton.

range

friendship,

the

of

philosophers

noblest

anything equal

to

— where,

celebrated

and

I

ask

Henry Ward Beecher

women whom

loudly denounced. culty in this case.

nated

in

the

first

I

his counsel

by

Henry Ward

shall ask

your atten-

But

in passing,

testimonials

originat-

in favor of the

men

have so bitterly and

Ah! gentlemen, there It is just

whole

has been

can you find

poets,

particularly.

you to consider these

ing from

and

by and by

the

in it

the tributes which

Beecher has paid to Moulton? tion to that

as

is

the

diffi-

the difficulty which origi-

place the charge of blackmail.

I

FAMOUS LEGAL ARGUMENTS.

174

Henry Ward Beecher

agree that

in intellect,

qualities,

and great

and

many

in

shall not

I

is

a great man, great

noble and distinguished

attempt

at all to

reduce the

estimate of him by his counsel, by this jury, and by

when my

the world, except that

learned friends elevate

him

to that degree of perfection that he

and

sinless, I

shall

attempt to show you

ment are

some exceptions

good I

the course of the argu-

in

to

be taken to the character of

For however great and good he may be,

not yet sinless and perfect, and the whole argu-

is

ment tion,

utterly

have the honor to present to you, that there

I

Mr. Beecher.

he

is

take exception to the statement, and

of our learned friends

is

based upon that proposi-

and that proposition alone, that he

and good,

his

life

is

too elevated

too pure and stainless, the law of his

nature too pious and worthy to permit the imputation of sin

and

offense.

But

man, so

this

great, so good,

has borne invariable testimony to the integrity and fidelity

counsel.

of the persons assailed in this court

And

Henry Ward

the

diilficulty, as

Beeclier

I

said,

by

his

has been that

surrounded by the influences

which envelop him, governed by the interests which control him, not his own, influenced by considerations

which spring not from consciousness

his

— the difficulty

were interested

in

own

nature, and his

has been that those

own who

Henry Ward Beecher have been

continually fighting against the generous and magnani-

mous impulses

of

his

nature.

Why, you remember

FAMOUS LEGAL ARGUMENTS. that

by Mr. Beecher

description

17S

of the controversy

between him and Mr. Tracy and Mr. Shearman upon the question of blacltmail, a most amusing but an trative

example

Beecher

in

the

of the influences

illus-

which controlled Mr.

place in his prosecution of Mr. Til-

first

*******

ton before the Examining Committee, and

unworthy and

now

in his

insincere defense against this action.

MR. beach's peroration.

My

argument now, gentlemen,

finished.

is

disagreeble topics have passed, and I

am

relieved,

I

hope

me a few words muned together a long suffer

in

I

am

rejoiced that

from them

forever,

conclusion.

All these

;

but please

We

have com-

time upon great themes, lifting

us above the littleness of

common

They

controversy.

are associated with the highest interests of humanity,

they

affect the civilization of the age.

religion, divine stir

and human law, all the great topics which

the enthusiasm of our nature, have mingled with

our deliberations. feel

Truth, morality,

It is

we should not The

impossible that

something of their purifying inspiration.

selfish

and petty struggles of ordinary

life

often tram-

mel and debase our thought, chaining our souls to mercenary calculation and sordid desire. If

anything can exalt us to a higher

spirituality, to

a nobler conception of truth and duty, like

this,

so

responsibility.

full

of

We

dignified

must

rise

interest

it

is

a scene

and weighty

to this great occasion or

FAMOUS LEGAL ARGUMENTS.

176

we

our ourselves and dishonor our

belittle

Most sensibly have meet the duty

my

of

I

felt

my

position,

own

nature.

inability worthily to

and struggle with the

perplexities of this wide debate, in the face of adver-

cunning of defense, so powerful and skilled as

saries so

my

eminent

But the race

friends.

is

not always to the

The

swift nor the battle to the strong.

sling of the

shepherd very often vanquishes the might of the giant.

Weakness

strong in the energy of truth.

is

faith in

my own

supreme

justice

sparrow as

skill,

but

I

I

have no

have abiding hope

in

the

which governs the world, marking the

it falls.

On

the great seal of your city

is

engraved the noble motto, "right makes might," and

on any day which It is

of public celebration

flung out from the

is

it

dome

in its

contests with arrogant strength.

the sentiment which has sustained difficulties

will

and discouragements

and eventually,

sustain

because never

long

upon the flag

your City Hall.

of

the sentiment which encourages and strengthens

weakness

men,

shines

it

association,

me

each of you.

bringing

in

it

him,

this trial, gentle-

us

into

daily

Our

intimacy,

with kindly sympathies and interest for

We

have stood together before this com-

munity animated by a common the right

redeem

from you with respectful regret.

shall part

impresses

trust,

and

Him whose words shall

Wearied and worn with

fail. I

client in all the

of this contest, I

bears the promise of

my

It is

honest sincerity.

object,

seeking after

The distempered

plea of

FAMOUS LEGAL ARGUMENTS.

1

77

turbulent passions has been against the altar at which

we

The

serve.

boisterous interests and sympathies of

an interested people have tried the firm foundation of this temple,

but the

spirit

of justice sees nothing of

Calm and

the tumult, hears nothing of the uproar.

she leans trustingly upon a juror's oath.

confident,

Your consciences uphold the shaking temple and the If they weaken and fail, if the strong tottering altar. pillars of

honesty and truth give way, temple and altar

and God sink to a is

common

The

ruin.

struggle this day-

between the law and a great character and a great

church.

If

the latter triumph, and the law

down, woe unto him who

May

calls evil

please your honor,

it

common we recall the

express the myself, as

it

needs not

sentiment of

learning, with

trodden

is

good and good

my

I

should

associates

intelligent dignity

and

evil.

and

fearless

which you have guided us through the

tangled mazes of this

trial.

tribute than that offered

You

by our

can receive no nobler Contest-

adversaries.

ing every position with animated zeal, and sprinkling this

record with objections, they acknowledge with

inimitable candor the entire accuracy of your

Your Honor,

decisions.

to

know

that

defendant.

therefore, has the gratification

you have worked no

Sir, I

numerous

injustice to this

indulge the hope that the friendly

regard with which you have honored me, like

warm

my own

respect for yourself, will be deepened

remembrance

by the

of those toilsome but pleasant days.

FAMOUS LEGAL ARGUMENTS.

178 I

cannot part,

edging If

my

sir,

with this occasion without acknowl-

my noble and tried associates. attended my efforts it is due to their

obligations to

any merit has

sagacity and wise prom'ptings.

Posting

of this battle, they have yet stood

champions.

its

me in

true leaders and

has been a regret and

It

the front

a

unavoidable circumstances have withdrawn

loss that

my

learned and accomplished friend, Mr. Pryor, so

he has not struck so

very

much

many blows

from our

side.

the

he has nevertheless been the wisdom of our

field,

cabinet.

If

Deeply are we

all

in

indebted, and especially

myself, to his ready and large learning and judicious counsel.

You duty

I

will credit

sir,

when

I

again declare that the

have performed has been most unwelcome and

painful. this

me,

I

case

have not spoken aught without

toward any,

filled

in malice.

I

leave

the slightest asperity of feeling

with unaffected admiration for the

transcendent qualities and generous courtesies of distinguished antagonists.

No man

my

venerates more

profoundly than myself the magnificent genius of this defendant.

His large contributions to the literature of

the times excite the sentiment of which Macaulay

spoke is

in

in his

essay on the Life of Bacon.

Rich as he

mental endowments, prodigal as his labors have

been, they can shelter no offense against the law.

Genius as lofty, learning more rare and profound, could not save Bacon.

He

sinned and

fell.

Upon

his

mem-

— FAMOUS LEGAL ARGUMENTS. ory history has written the epitaph, "

Toward

the meanest of mankind."

who

grace, like those

fall,

gifted poet, writes in his

He

The

men

New

entitled "

79

greatest and

great

Whittier,

poem

1

in dis-

England's

Ichabod

" :

then recites this familiar poem.

Gentlemen,

I

commit

this case to

language of the great orator grave at Marshfield

"

:

you

in

the sublime

who speaks to you from

With consciences

satisfied

his

with

the discharge of duty, no consequences can harm you.

There

no

is

we cannot

evil that

either face or fly from

A sense

but the consciousness of duty disregarded.

duty pursues us ever. If

we take

dwell

in

It is

of

omnipresent, like the Deity.

to ourselves the wings of the

morning and

the uttermost parts of the earth, duty performed

or duty violated

misery.

And

if

is still

with us for our happiness or

we say the darkness

shall cover us, in

the darkness as in the light our obligations are yet with us.

We

cannot escape their power nor

presence. its

close,

which

lies

They are with and

in that

us wherever

it

life,

will

from their

be with us at

scene of inconceivable solemnity

yet farther onward,

selves surrounded

far as

us in this

fly

we

shall

still

find our-

by the consciousness of duty, to pain

has been violated, and to console us so

God may have

given grace to perform

it."

F^RT

II.

Circumstantial Evidence.

The fully

following five selected cases will illustrate quite

the uncertainties of merely circumstantial evi-

The

dence.

ancient

Romans were

so sensible of the

uncertainty of evidence that their form of judgment,

merely expressed, that he appeared to have done

it.

Various cases are shown herein where the discovery of the fatal error

came too

late to

be

rectified, to

say

nothing of the thousands of cases where the mistake has never been discovered.

what extent

this

It is

impossible to say to

dangerous doctrine

may have been

carried.

Proof by presumption

and

conjecture cannot be

called a true and proper proof.

The

writer feels free to confess that he considers

it

highly improper, unjust and entirely wrong to convict

any person on circumstantial evidence penalty for which trust that the

abolished.

is

day

of a crime the

capital punishment, is

not far distant

and

when

I

sincerely

it

will

be

HOMICIDE. CASE OF THE BOORN BROTHERS. The

principal points o! this peculiar case were taken from

pamphlet published by the Journal,

There

lived in

had two

all

living with him.

supposed to be

away

for

i8i2 one Boorn,

in

sa

Manchester, Vt.

who

and Stephen, and a son-in-law,

sons, Jesse

Russell Colvin, tric,

Manchester

of

at

Colvin was eccen-

times deranged, and was often

days without giving

any account of his

At last he was absent so long that people began to make inquiries, and suspicions of foul play were in the air. Months and years passed, and whereabouts.

yet there was no explanation of his absence.

Some

of

the neighbors remembered that the Boorn brothers,

very

shortly, after his disappearance,

had declared that

Colvin was dead, and that they had "put him where

They had not been on

potatoes would not freeze."

good terms with him, and

this

added to the prejudice

against them.

Other circumstances began to accumulate against the Booms.

Some

children found a dilapidated hat,

which was recognized time

of

for the

his

as the

disappearance.

one Colvin wore

at the

Search was then

made

bones of the supposed murdered man.

afterwards a dog uncovered old stump, which were at

first

Soon some bones beneath an said to be

but were afterward found not to be.

human

An

bones,

uncle of the

CIRCUMSTANTIAL EVIDENCE. boys had a dream

in

1

which Colvin came to

A

and told him he had been murdered.

83

his bedside

barn

neighborhood was mysteriously burned, and

the

in

was

at

once conjectured that Colvin had been buried under

it,

and that the

fire

the Boorns.

told

all

traces of

All these added to the excitement against

the crime.

arrested.

was intended to destroy

it

Stephen was out of the

He

state,

but Jesse was

confessed that his brother Stephen had

him that he and Colvin had quarreled, and that

he had

killed

for miles

him by

a

The people

blow on the head.

around spent the next few days

in

another

search for Colvin's bones, but were unsuccessful.

Stephen Boorn was brought home.

He

denied the

satement of Jesse and asserted his innocence.

The

brothers were imprisoned to await the action of the

Grand Jury. The principal witness before that body was a forger, who had been confined in jail at the time of the Boorns.

by

Jesse,

He

gave

in detail a

confession to him

and both boys were indicted.

This was

September, 1819, more than seven years after the

The

appearance of Colvin. ber.

trial

took place

in

in

dis-

Novem-

Meanwhile Stephen was induced by the hopeless-

ness of their case to confess the crime, in the expectation of

mercy from the

court.

This confession was the chief evidence against them.

Notwithstanding that

it

was drawn out by the hope of

obtaining a more favorable verdict, and that nobody

had been found as proof

of the murder, or even that

1

CIRCUMSTANTIAL EVIDENCE.

84

Colvin was dead, they were convicted and sentenced^ to be

banged January 28th, 1820.

The proof

against

them appeared

so decisive that the

poor old mother was expelled from the Baptist Church in

upon suspicion

the village and the father arrested

and imprisoned

A

petition

as

an accessory to the murder.

was passed and signed by many

leading citizens,

praying for a commutation

The legislature voted

sentence.

of the

of Jesse to imprisonment for

of the

to change the sentence

but refused to

life,

in-

terfere with that of Stephen.

One morning,

in

an interview

occurred to Stephen that advertise

Colvin

for

it

would be a good idea

the

in

with, his counsel, it

His

papers.

to-

counsel

believed him guilty up to this tirne, but he assured

them

that he

was innocent, so accordingly the follow-

ing notice was printed in the Rutland Herald, Burling-

ton Free Press, and a St. Albans paper " Murder.

— Printers

United States

newspapers throughout the

of

are desired

Boorn, of Manchester,

in

:

to publish

Vermont,

is

that

executed for the murder of Russell Colvin,

been absent about seven years. give

the

information of said Colvin

Any may

Stepher>

sentenced to be

person

who has who can

save the

life

of

innocent by making immediate communication.

Colvin

is

about

five feet five inches high, light

com-

plexion, light colored hair, blue eyes, about forty years of age.

Manchester, Vt., Nov. 26, 18 19."

CIRCUMSTANTIAL EVIDENCE. Stephen's friends had but

little

1

hopes that

this

85

would

save him, and newspapers travelled very slowly those days.

Three days afterwards

copied

it,

was read

York Post

and the next day

it

happened that the notice

one of the hotels

in

New York. Another man

in

standing near,

named Whelpley,

and related many anecdotes and

A Mr.

cerning him.

had formerly

said he

and was well acquainted with Col-

lived in Manchester, vin,

New

the

peculiarities con-

Chadwick of Shrewsbury, N. J., was

also standing near, listening to the conversation,

made

a deep impression

upon

home

the matter over after he returned

man then

On

his mind. it

which

thinking

occurred to

him that

a

William

Polhemus, of Dover, answered exactly the

description as given

he wrote a

living with his brother-in-law,

by Mr. Whelpley, so accordingly

letter to the Post giving his

Whelpley saw

it,

Mr.

went to Dover,

after great effort induced

him

There was great rejoicing

Boorn was brought from the

in

conclusions.

identified Colvin,

and

to return to Manchester.

the town, and Stephen

jail

to

fire

the cannon that

celebrated his deliverance.

HOMICIDE. Living just on the edge of the in

little

Chittenden, Co., Vermont, was a

who had

M

town

of

man

of wealth,

,

a grand old house, occupied only by himself

and servants.

There were various

stories

about

how

CIRCUMSTANTIAL EVIDENCE.

186

he was, and what large amounts of money he

rich

always kept near him, but he was never disturbed until

one night, shortly after midnight, there was a disturbance in the old house, accompanied

by

pistol

and when the people who came to see what the

shots,

matter was got

in

they found the owner dead with a

through his eye, and the butler, with his hands

bullet

of jewelry

full

terrific

and watches, lying

in the

doorway

somewhere

old gentleman's room, with a bullet

of the

the

in

head, but he wasn't dead.

His revolver lay by his

side,

and

as far as could

The

seen the whole story was told right there.

who had been

butler,

the house only about six months, had

in

attempted to rob his master, had been caught act

be

and shot, but had

That was the only

killed the old

translation of

man

in

in the

the fight.

and there was no

it,

other for several days, because the butler had a very serious

wound, and was delirious

k was not fatal, and made a statement to awakened

in

However,

he was himself he

the effect that

he had been

the night by footsteps and had taken his

which had only two

pistol,

for a week.

as soon as

and gone down to the

hall

'loads in

it

out of the

five,

below to see what the noise

was.

He

noticed that his master's door was partly open

at the far

end of the

he approached asking

it

who was

hall,

and hurried toward

it.

As

he heard his master speak to some one

there,

and with that there was a

pistol

CIRCUMSTANTIAL EVIDENCE. shot,

and he jumped into the room, grabbing a burglar

as he did

so,

head from

and

at the

Beyond

that he

in the

remem-

His story was generally disbelieved,

no

was

there

house with

in the

same time getting a shot

his master's pistol.

bered nothing. for

187

evidence

evil designs,

he had not caught

of

and

any all

other person

the plunder that

hands was lying on the

in his

about him, so that there was no apparent reason

floor

why

a

burglar should

be there.

All the doors were found

locked by those

who came

in

response to the alarm,

and there were absolutely no signs

of burglarizing

from

the outside.

Another strong point was that the

was found

in the butler's

head exactly

bullet

which

fitted the pistol

of his master, showing conclusively that

it

was the

who shot him. This was when the lawyer took charge

master and not the burglar the condition of the of

it,

affair

and, though he really believed the butler's story,

and

tried to prove

was

finally

it,

he couldn't do

it,

and the man

hanged.

A year later

a burglar

was shot by a policeman

in

the city near by, and he confessed on his deathbed that

he was the murderer of the rich man.

hidden all

in the

house early

in

He had

the evening, had collected

he could of jewelry and other portable valuables,

and was about getting out when he was caught both by the old gentleman and the butler, and that the butler

had got the

bullet intended for him, as

he had run into

CIRCUMSTANTIAL EVIDENCE.

l88

man

the room just as the old

Dropping every-

fired.

thing in his sudden surprise, he had rushed

and hidden

in

down

stairs

the hallway, from where he had slipped

out as soon as the front door was opened.

In the

excitement he was not observed, and he got away without any trouble at

and

waterfalls, for

common

ers so

all,

as the nearness to the springs

which

M

is

noted,

made

that their presence excited

strang-

no sus-

picion.

PARRICIDE.

A

young man was

50's,

tried

in a rural

The evidence

father.

town

and convicted

along in the

murder of

his

own

him was purely circum-

against

stantial, the principal witness

in Indiana,

for the

being his

sister.

She proved that her father possessed a small income, which, with his industry, enabled him to live in comfort

;

that her brother, the prisoner,

at-law,

who was

his heir,

had long expressed a desire to come into pos-

session of his father's

effects

;

and that he had long

been an undutiful son, wishing, as the witness believed, to put a period to his existence

vexation

;

by uneasiness and

that on the evening the murder

was com-

mitted the deceased went a small distance from the

house to milk a cow, and that the witness also.went out to spend the night, leaving only her brother in

house

;

that, returning

home

the

early in the morning, and

finding that her father and brother were absent, she

CIRCUMSTANTIAL EVIDENCE. was much alarmed, and sent

189

some neighbors

for

to con-

and to receive advice as to what should be

sult with,

done that ;

in

company with these

neighbors, she went to

the shed in which her father was accustomed to milk,

where they found him murdered ner, his

an inhuman man-

in

head being almost battered to pieces

suspicion falling

;

that a

upon her brother, and there then being

snow on the ground, being were observed,

in

which the footsteps of a human

it

was' agreed to take one of her

brother's shoes and to measure therewith the impressions in the

snow

;

this

was done and there did not

remain a doubt but that the impressions were made with his shoes. Thus confirmed

went immediately to the

in their suspicions,

prisoner's room,

diligent search, they found a

hammer,

and

they

after a

the corner of a

in

private drawer, with several spots of blood

upon

and with a small splinter of bone and some brains

it,

in a

crack which they discovered in the handle.

The circumstances .

hammer, fully

of finding the deceased

as described

by the former

proved by the neighbors

and upon

whom

About tremely

four years afterward ill,

she had called

;

was convicted and

this evidence the prisoner

hanged, but denied his guilt to the

and the

witness, were

last.

the

witness was ex-

and understanding that there were no

possible hopes of her recovery, she confessed that her father

and brother having offended

her, she

was deter-

mined they should both die and accordingly when the ;

:

CIRCUMSTANTIAL EVIDENCE.

190

former went to milk the cow, she followed him with her brother's hammer, and in his shoes

it

was found

;

that she beat

hammer and laid it home to make

out her father's brains with the

where

;

that she went from

matters appear better for the wicked business and that

her brother was innocent of the crime for which he

had

suffered.

She survived her

was imme-

sickness,

diately taken into custody, tried, convicted and hanged, all

within seven weeks.

MISTAKEN MEDICAL TESTIMONY. This case

illustrates the necessity of

procuring the

highest medical talent in criminal cases relating to injuries of the person, as well as the uncertain nature

of circiimstantial evidence.

The

following statement was sent

by a surgeon

to a

leading medical journal not long since

Some

thirty years ago, while passing the village of

Ferrisburg on the

way to my home

attention was attracted

by a mob

in

Vergennes,

of persons

my

of the

who were some person who

lowest order around the door of a tavern,

very loud

in their

was suspected

execrations against

of having

roboration of which,

I

murdered

was

his brother

told that his

;

in cor-

bones were

found near the premises where he formerly resided, upon view of which a jury was then

ment from the day preceding.

sitting, after

an adjourn-

CIRCUMSTANTIAL EVIDENCE. I

I9I

found that two surgeons had been subpoenaed to

inspect the remains, and

I

had no doubt but that every

information as to their character had been obtained

me

curiosity alone, therefore, induced

the room, where

to

make way

;

into

found that the coroner and jury

I

were sitting for the second day, and were engaged

in

an investigation which tended to show that a farmer

and market gardener, had, a few years before, a brother living

with him

who was engaged on

whose conduct was so often

the farm, but

and irregular that

it

provoked the anger of his elder brother, and

sometimes ended

temper trol

dissolute

in violence

of the elder brother

between them

was

as little

;

that the

under con-

as the conduct of the younger, and that they lived

very uncomfortably together.

One

winter night,

when

the ground was covered with

snow, the younger brother absconded from the house letting himself down from his chamber window and when he was missed the ensuing morning, his footsteps were clearly tracked in the snow to a considerable dis-

by

;

tance, nor were there

Time passed

on,

any footsteps but

and after a lapse

tidings were heard of his retreat,

there ever been since.

Some

of

his

own.

some

years,

no

nor perhaps have

alterations in the grounds

surrounding the house having been undertaken by a

subsequent tenant a skeleton was

dug

(for the

brother had

left

the house),

up, and the circumstances appeared

so conclusive that one brother had murdered the other,

CIRCUMSTANTIAL EVIDENCE.

192

that the popular clamor was raised to the utmost, and a jury impaneled to investigate.

After listening attentively to these details,

I

ven-

tured to request of the coroner to be allowed to ex-

amine the bones, which

hamper basket felt

much

by

sheriff,

them upon the them

found were contained

at the further

flattered

he desired the

I

table

his

in

a

end of the room, and

I

immediate compliance,

who was ;

for

attendance to place

in

and having himself disposed

in their natural order,

I

found that they repre-

sented a person of short stature, and from the obliteration

of the sutures of the skull,

state of the teeth,

son, but

what was

and the worn-down

must have belonged

my

when

surprise

to an

aged per-

reconstructed

I

the bones of the skeleton, and found the lower bones of the trunk to be those of a female.

communicated the the two medical

fact to the jury,

men who had

I

immediately

and requested that

before given their opin-

ions might be sent for, one of

whom

attended, and

without a moment's hesitation corroborated I

my report.

need not add that the proceedings were instantly at

an end, and an innocent able, in

man

the shape of an apology, from

which the coroner joined.

beyond

all

It

amende honor-

all

present, in

has since been proved

doubt that the spot where the bones were

found was formerly the

which

received the

hordes

of

site of a large

gypsies

gravel

pit,

in

not only assembled, but

occasionally buried their dead.

HOMICIDE. Reuben in

Giff,

man

an elderly

Vermont, was

visited

residing in a

town

little

one day by an old acquaintance

named Mo. Lamph whom he had not seen for some time. They went across a square to a hotel, and after drinking together Giff asked to be excused as he had an important errand, which was to receive

him, but

made him promise

Giff returned insisted that

They

some money owing

to await his

coming back.

and they drank together again.

Lamph accompany him home

Giff

now

to dinner.

dined, drank and shook hands again and again,

until in fact

they were pretty well intoxicated.

The room they

sat in

was backwards, detached

as

it

were from the house, with a door opening into a yard,

and had access to the

street

without passing through

the house.

As

grew

it

late Mrs. Giff

came

and not

into the room,

made inquiry after him of Lamph being much intoxicated, all she could

seeing her husband there,

Lamph.

get out of him was. that G. had gone out in the yard

some time called,

before,

and had not returned.

was searched

after

neither answering, nor being to be as well as he Giff,

was able

not coming

met

for intoxication,

home

with,

went

was

Giff

by the whole family

;

but

Lamph,

his

way.

that night, and several days

passing without his returning or being heard cions arose, in the minds of many, of

some

of,

suspi-

foul play on

194

CIRCUMSTANTIAL EVIDENCP:.

the part of

Lamph

;

and these were not a

little

creased on the thought that he had received a

money

that

him

manner, which

at the

being

Lamph had

and that

day,

inquiries after

in a

sum

replied

in-

of to

very incoherent, unintelligible

time had been attributed to his

in liquor.

These suspicions went abroad, and took place

belief

murderer

many

in

at length a full

Lamph was

that

really the

had gone out with him, robbed and mur-

;

dered him, disposed of the body, and

slid

back again to

the room where they were drinking, unseen.

The

officers

were sent to

arrest

Lamph, and he

giving, before the magistrate,

a very unsatisfactory

relation of his parting with Giff,

which he affirmed was

owing

to his having

been intoxicated when Giff went

out of the room, but which the magistrate ascribed to his guiltiness,

While to

he was committed to the county

in

jail

for trial.

confinement, reports were spread, tending

warp the minds

of the people against him.

Super-

natural as well as natural reasons were alleged as proof of his guilt.

Giff's

house was declared to be haunted

;

frequent knockings were heard in the dead of night,

and ghosts were seen. of the deceased,

that

And

crown the whole, a son

to

Henry by name,

once, at midnight, his

positively affirmed,

curtains

ghost of his father appeared,

all

flew

open, the

bloody, and, with a

piteous look and hollow voice, declared he had been

murdered, and that

Lamph was

the murderer.

CIRCUMSTANTIAL EVIDENCE.

Under these superstitious,

prepossessions amongst the

and a general prejudice

Mo. Lamph was brought

Reuben

to trial

weak and

in stronger

minds,

the murder of

for

Circumstances upon circumstances were

Giff.

deposed against him

was with

I95

and as

;

appeared that

it

Lamph

both before and after his receiv-

Giff all day,

ing the money, and that they spent the afternoon and

evening together, the jury,

found

on

Lamph guilty,

his defense, of

executed It

innocence

happened

that,

and the parties to

making some

neighbors of

Giff's,

notwithstanding his protestations,

public on

in

who were

C

;

and he was shortly after Green.

some time

whom

after,

Mrs. Giff died,

the place was sold, were

repairs about the house, in

emptying the

necessary, which was at the end of a long dark passage,

the body of Giff was discovered.

In his pockets were

found twenty ten dollar gold pieces, from whence

was evident he had not been murdered,

was the

ascribed to

Lamph's evident

Lamph

for

it

The

murdering him.

robbing

be and was truth of

and defense now became doubly

assertions for

;

as the

circumstance that could

sole

it

was recollected that the

floor of

the

necessary had been taken up the morning before the

death of

Giff,

of boards

and that on one side of the seat

had been

he must have

commonly

left

fallen

up

into

;

a couple

so that being intoxicated,

the vault,

which was un-

deep, but which, unhappily, was not adverted

to at the the time of his disappearance.

MR. HOFFMAN'S ADVICE. The eminent American law

writer and

Mr. Hoffman, in giving advice to

young lawyers

proper studies to be pursued, says: larly

authority, as to

am particucommon error

"I

sedulous to guard against the too

of calling students to the commentaries of Sir William

Blackstone, before they have laid a solid foundation in requisite preliminary studies.

It

to suppose that, because that

work

outline of English jurisprudence,

once "

I

in their

an elementary

hands.

scarce ever

saw a student well grounded

believe the mistake of which either

is

should be placed at

it

commentaries who had pursued

often

a serious mistake

is

occasioned

I

this

now

course

the

and

I

them has

appraise

despondency,

;

in

or

induced

students to rely on repeated readings, with the vain

hope

We

of mastering the difficulties.

the contrary, that,

if

are assured on

they carefully study what has

been pointed out as preliminary, they

will

study this

admirable work with understanding and alacrity, and eventually save time, as they

will, after

work

scarce have occasion to regard the light than for occasional revision

one perusal, in

any other

and reference.

Let

him, while reading the heavy works of solid law-learning such as

Blackstone,

Kent,

etc.,

make frequent

excursions to actual cases themselves and study the

speeches of our leading advocates."

JUDGE DONOVAN'S ADVICE. Judge

W. Donovan,

J.

his

in

admirable

little

work, "Tact in Court," concludes with the following excellent advice to

young

with by his permission

Look

1.

handy

in

lawyers, which

:

Bring

less suits

many

and

Counsel

less

tell

falls

too

it.

with clients and more with wit-

much and

less

know human

jury

the timidity of

;

with honest witnesses

misplace

it

nature

is

they

;

so recklessly.

Claim not too much perfection

6.

a few, well

short of truth.

Cross-examine

5.

;

more, even by splitting

nesses; the bias of the one overreaches

the other

is

remote bearing.

of

settle

differences; but charge for 4.

money

law business.

sorted, are better than 3.

given here-

at the profit side of the ledger;

Rely on a personal study of cases

2.

is

ugly

;

they

the

in clients;

will

be jealous

of half angels in lawsuits. 7.

too

Demand less and be believed, rather than claim much and let the jury halve it they may give the ;

big half to your adversary.

Use others

8.

as

you hope

chances of gain and loss are this

in

method, and a good name

easy.

to be used

by them

;

the

favor of the gain side will

be a fortune

by

made

judge DONOVAN'S ADVICE.

I'QS

Carry your heart into court

9.

—

nothing heedlessly; juries are more fair

everything

in

in

;

do

sympathy with

play every year, and no theory will stand testing

like honesty.

Don't forget the boy lawyers, struggling up the

10.

steep

hill

from college to We'oster's top story.

long way up now. courage.

name

a

Cheer them and they

will

brighten your

hereafter.

Judge Donovan, now on the bench, author on this subject, says "

It's

to cheer than to dis-

It is better

More could be

said

in writing to

the

:

now

as

I

look

down from the

bench on struggling young men, and see them contend and hear them wrangle and know that feeling often takes the place of argument. is

The

the court room."

PREPARE

Gtt the case well

in

knows

and

jury.

greatest law school

the great word.

hand and see that the lawyer

his case fully, so fully that

to court

is

he can make

it

clear

INDISPENSABLE T O EVERY STUDENT.

STUDENT'S REVIEW OF

LAW AND

EQUITY,

EMBRACING

QUESTIONS AND ANSWERS BY L. O.

C. E.

MURRAY,

LL. M., of the

RIORDAN, LL. M.,

New York

Bar, and

of the Bar of District of Columbia.

Answer

book ever pubthe most complete Question and be found indispensable to the student in time of preparation for examination; and of great value to the profession as a convenient book of reference. It covers the entire ileld, and contains answers to This

lished.

is

It will

2271

QUESTIONS

lu the preparation of the book the following standard authorities have not only been cited, but the work is especially prepared for use in connection with them:

CONTRACTS— Anson, Bishop, Hare, Parsons, Ralston and Smith; 161 Questions and Answers. Bishop, Browne and May: U7 Questions and Answers. CRIMINAL DOMESTIC RELATIONS— Browne and Schouler: 82 Questions and Answers. EQUITY— .\dams, Smith; 289 Questions and Answers. EQUITY PLEADING AND PRACTICE— Adams and Smith; 96 Questions and Answers. EVIDENCE— Greenleaf: 474 Questions and Answers. MISCELLANEOUS— AU law writers; 414 Questions and Answers. NEGOTIABLE INSTRUMENTS— .\mes, Byles, Chalmer; J7.t Questions and Answers. PLEADING— Stephen; 321 Questions and .\nswers. REAL PROPERTY— Tiedeman, Washburn, Williams; 69 Questions and Answers. TORTS— Addison, Bigeiow, Cooley; 43 Questions and .Answers. Total Questions and -Vnswers, 2,271. The volume is 8vo. in size, contains 316 p^.ges. and is bound in full law sheep for $3.00; and in half sheep back and corners, and sides in marbled paper for $2.50. Sent to any address, charges prepaid, upon receipt of price.

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