The American. [volume] (Washington [D.C.]) 1857-1857, 1857-08-26

defend il; but the question is can you punish
| them for IL under this indictment? ! make that
question; for, no matter how wrong they may have
| acted no matter what turbulence was manifested
what law they infracted, you can only try them
according to law--fnd them guilty according to
law--and punish them according to law; and the
moment you overstep the limits Of the law, and
visit them with punishment not according to the
law you break the law disregard the solemn oath
under which you sit in that box, and set an exam
pie fatal to security. We want the law executed
fairly and impartially: we ask no more. If these
men were proved guilty Of murder, or Of larceny,
or robbery, can you find them guilty under this
Indictment? No. And why? Because the ndict-
ment charges them with riot, and you cannot in
quire into an offence that is not charged in the
Indictment. That have attempted already to
explain to you. Now, gentlemen, can you find
them guilty of riot A riot is charged in the in
dictment, but If the evidence proves that they
were guilty Of an ARRAY, and an affray be not
charged, you cannot find them guilty Of that Of
fence. If then, this violation of the peace at the
polls was, in contemplation of law, an ARRAY and
not riot, however guilty these parties may be-
however much they may deserve punishment
and think they do deserve punishment-you
break the law If you convict them; you make JUS
tice mockery; and you invade the privilege OF
the defence which the law has secured to them.
Now, gentlemen, propose to call your attention
to the distinction between a riot and an ARRAY
Offences are divided into various classes, and some
times the line of demarcation is difficult to ascer-
tain. The definition is certain--but when We
come to apply the facts to the it is often una
certain to what class of offence the particular case
belongs. Thus we have homicide divided into
felonious homicide, justi6able homicide and ex.
cusable homicide. Where the excuse is, where
the justification is, and where they separate, it is
often difficult to determine. A felonious homicide
is divided again into murder and manslaughter
well known settled distinctions the law books give
US; but still it is sometimes most difficult thing
to determine where to draw the line, and whether
a particular state of facts makes a case of murder
or reduces it to nanslaughter. The leading dis
tinction, sthat murder consists Of homicide done
upon generalization with malice; manslaughter is
a homicide committed without malice upon sud-
den heat. Here we have a rot and an ARRAY and
| the principle which distinguishes murder from
| manslaughter, now points us to the distinction
between riot and an ARRAY. Murder must be
upon generalization; manslaughter is killing
without generalization, from sudden heat. A riot
is disturbance Of the peace upon concert, upon
reconciliation. The premedtation and concert,
which in a case of killing, makes MURDER in case
Of the disturbance OF the peace, makes riot. An
ARRAY is disturbance Of the peace where persons
engage in fight upon sudden occasion with
out premeditaton. To make a riot, parties must
assemble together unawfully. It must be an un-
] lawful assembly. They must assemble unlawfully
and act upon premedtation. An ARRAY is where
the parties assembled, whether lawfully or unlaw-
| fully, make combat out of some sudden provo
| cation
! That is the difference, as defined by law be-
tween riot and an ARRAY. That l may not be
misunderstood, turn to an authority which has
been referred to by his Honor | quote from
| Russell on crimes:
H.. st.al@ lk4,s
ance Of the peace by three persons or more, as
sembling together Of their own authority, with an
intent mutually to assist one another against any
who shall oppose them in the execution of some
enterprise OF private nature-and afterwards,
actually executing the same, in violent and
turbulent manner, to the terror Of the people,
whether the act intended we're Of itself lawful OF
unlawful"
A riot then is an assembling together on their
own authority with foregone intent. Now,
what is an ARRAY?
ARRAYS are the fighting of two or more per-
sons in some public place. to the terror of his Ma
jesty's subjects. The derivation of the word ARRAY
is from the French, efrayer, to terrify and as in
u legal sense, it is taken tor public offence to
the terror Of the people, it seems clearly to follow
| that there may be assault which will not
| amount to an ARRAY; as where it happens in a
private place, out of the hearing or seeing of any
except the parties concerned; in mich case it
cannot be said to be to the terror Of the people.
And there may be an ARRAY which will not amount
! to riot, though many persons be engaged in it
as if number Of persons, being met together at a
fair or market or on any other lawful or innocent
occasion, happen on sudden quarrel to fall to-
gether by the ears it seems to be agreed that they
will not be guilty of riot, but only Of a sudden
ARRAY, Of which none are guilty but those who ac-
tually engaged in it; and this on the ground OF
| the design of their meeting being innocent and
! 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 are necessary to consti
tute riot" '.....
Now, II this definition had been written for this
case, it could not have fitted better. riot is
where people come together to execute foregone
intent condemned by the law. An affray is where
people assemble together on a lawful occasion,
| and disturbance arises out Of sudden heat and
| provocation. Now, then, was this riot or an
ARRAY? Gentlemen, 1t is principle OF the crimi-
nal law, that l am afraid my worthy friend, the
Prosecuting Attorney has altogether forgotten in
the zeal he manifests TO obtain a conviction but
il is principle as old as the law itself, commend
cd 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 unmpaired in all its force, and principle
which is existing here and is part of the law that
Is, that in criminal 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 if 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 "a
vorable to the accused is the conclusion that the
jury is bound to draw. Here il 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 Irishman, 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 II was lawful for them to
be. l say, then, that no impartial mind can look
at this evidence and that there is at least
probability that such was the origin Of the diff.
Guilty The censorious mind, biasesd by party
feelings, party preiudices party hatred-or it has