The American. [volume] (Washington [D.C.]) 1857-1857, 1857-09-05


And there may be an ARRAY which win not amount
10 a riot though many persons be engaged in il
as if number Of persons, being met together al a
fair or market, or on any otEer lawful or innocent
occasion, happen on sudden quarrel 10 iaii TO-
gether by the ears il seems to be agreed that tney
will not be guilty of riot, but only OF sudden
ARRAY, OF which none are guilty but those VINO &C,
tually engaged in IL; and this ON the ground o.
the design of their meeting being innocent anu
lawful, and the subsequent breach OF the peace
happening Unexpectedly without any previous in
tention An ARRAY differs also from riot IN this;
that two persons only may be guilty OF It, Where
as three persons at least necessary to constl-
tute q riot" w s
Now, If this definition had been written for this
case it could not have fitted better. A riot is
where people come together to execute a foregone
intent condemned by the law. An aftray is where
people assemble together on a lawful occasion,
and disturbance arises out of sudden heat and
provocation. Now, then, was this riot oran
affrayi Gentlemen, it is principle Of the crimi-
nal law, that I am afraid my worthy friend, the
Prosecuting Attorney has altogether forgotten in
the zeal he manifasts to obtain conviction; but
it ia principle as old as the law itself, commend
ed to US by the highest authority, enforced in the
country from whence We sprang and from whose
institutions we derive our law, existing there at
this day unimpaired in all its force and principle
which is existing here, and 10 part Of the law, that
is that in criminal cases the accused is entitled to
the benefit Of every rational doubt. The prose-
cution can never ask conviction in criminal
case, till he makes clear the guilt Of the party ac-
cused, free from all reasonable doubt; and il the
result Of the testimony on both sides, or on one
side is to leave the scales of probability on bal
ance; to excite doubt, or stop short OF certain
proof the conclusion from the testimony most ia
yorabe to the accused, is the conclusion that the
Jury is bound to draw. Here it is unquestioned
that there is abundant proof to show, that the
fight in the morning at these polls sprung from the
challenge OF the one IrisEman, and the production
Of knife or dirk by the other. The gage was
thrown down and taken up. The fight sprung
from that, the parties being at public place, at
the polls, voting, where it was lawful for them to
be. say then, that no impartial mind can look
at this evidence and not that there is at least
probability that such was the origin Of the diff
Guilty. The censorious mind, biased by party
feelings party prejudices, party hatred-for it has
come to this, that men of opposing parties now
hate each other; lamentable as it is, the evidence
Of this has been too manifest in the testimony
drawn from your witness-box during this trial.
say, q man prejudiced by party or blinded by hate
and rancorous feeling, may shut the eyes to all
the defence, and looking exclusively to the testi
mony on the other side, conclude that there is
proof Of riot and not of an affray. ! do not say
how an impartial and intelligent mind is necessa.
rily to Judge or determine whether the probabili-
ties preponderate on the one side or the other !;
what / say is, and maintain it confidently, that
every impartial and intelligent mind must see and
admit that there are probabilities On both sides.
Now, my proposition is, that though in civil
cases juries may weigh probabilities and decide
according as they preponderate, that is not al
lowed in criminal cases; there, certainty is re;
CURED 1t will not do to hang man because he
is probably guilty of murder, or to put man in
the penitentiary because probably he is guilty oil
stealing, nor to exhaust mans pecuniary sub
stance by fine because he probably committed a
riot nor If there be probability that he com
mitted an ARRAY can you convict him of a riot.
You cannot act on probabilities in criminal case
and It results from that benignant principle OF
the law to which / have already adverted, which
declares that it is better that ninety-nine guilty
men should escape than that one innocent man
should suffer. Il is that principle of law which
commands juries who sit in criminal cases to
resolve every doubt, mean rational doubt,
arising on the testimony, in favor of the accused.
If you are political jury, and are trying this case
by party tests it being proved that these defend
ants are Americans, or Natives or Know
Nothings, or whatever else you may call them.
you may find them guilty; but IL you are jurors
with the intelligence which belongs to your office,
jurymen impartial fair, and just submit il to-
your honor, submit it to your justice, when you
bring your minds to the consideration Of the proof
regarding the morning affair, according to the
principles / have explained to you, and which
cannot be controverted; whether, upon this evil
dence, you can, upon your conscicnces find any
of these parties guilty Of riot, when, according
to all reasonable probabilities, il amounted To-
nothing more than to an affray.
Gentlemen of tho Jury shall proceed now to
call your attention to those parts Of the which
concern the disturbances which occurred after the
military were brought upon the ground.
The Indictment is general one, and Of course
gave no notice to the parties accused Of the pre-
else offence for which they were TO be tried.
They learned that for the first time, from the
witnesses who were examined in court It is gem
eral charge Of riot and disturbance Of the peace
I have attempted to explain to you, and trust
successfully, that under this indictment which
charges one offence, IL Is not competent for the
United States to inquire into, or prove, or submit
to your consideration any other offence; and that
whilst latitude of choice is permitted amongst
various offences, whenever the prosecution makes
rs selection and it does that by the first witness
he calls to the stand; whenever he makes an cleo
ton to prove against the party charged special
offence, he is confined afterwards to that, and he
is not at liberty TO go into an investigation of any
other offence, having connection with the first;
so that If be right In that proposition of law, and
lift be contested, you may call upon his Honor to
pass upon the question. say if be right in that
proposition of law, unless some connection is es-
fablished by the evidence between the morning
disturbance, and that which occurred upon the
marching of the Marines, as he first undertook to
give evidence of the morning ARRAY, he selected
that his case for prosecution, and IL was trans
cending the legitimate privileges of the prosecu-
ton to 90 further and enquire into those other
matters Of subsequent occurrence. 1t may be said
that the counsel for the defence, If this was the
law, might have interposcd and arrested the ex-
animation Of witnesses, and made the point to the
court Ny answer is, that we had no right TO