Weekly American. [volume] (Washington, D.C.) 1858-1858, 1858-02-13

afay-that no one of them voluntarily told us that
amy person took part in the ARRAY, but those who
are called the assailants They SO shaped their
testimony In giving an account Of this afray, to
leave the impression that the assault committed
by one party without resistance from the other
side. l say that struck me, gentlemen, az some
thing most unfavorabIe TO those witnesses. We
put them through course Of cross examination.
Il might have been an omission, casual omission.
We called their attention TO it. We put the ques-
ton but could not elicit from any one of them
an admission that pistol was fired by any Of the
opposing party, that cudgel was used, stone
cast, or a blow struck. And they sought to pro-
duce the impression on this court and this Jury,
that those who were assaulted and their friends,
positively submitted to the assault without resis-
tence. Icould not believe them, nor can this jury
believe them. do not charge them with wilfully
swearing falsely. l make great allowance for JUS
tice Donn for that special challenger, and for police
justice Goddard, and would extend the mantle
Of charity over them. ! viii not follow the exam
pie of my worthy friend the District Attorney and
censoriously impute crime to error; but still say
cannot credit this statement, and In my judgment
an impartial jury cannot credit it. There stood
a column Of near hundred Irishmen, outnumber
ing the assailants and they were not alone, they
were not unsupported; Of course not As the
contest partook of party character 1t necessarily
involved in its consequences individuals OF that
party in whose i,terests those Irish were brought
to vote is It then to be believed that under cir
cumstances like these. In crowd of persons thus
promiscuously assembled Of both parties, this as
sault could have been made and not be resisted !;
that blows on one side did not produce blows on
the other? Credulity itself must reject it. The
testimony on the part of the defence comes in here
and proves what every man of rational mind would
expect to have occurred--that this rush upon the
Irish column produced fight, blows we're given
as well as received in point of facta fight in which
policeman Baggott, the Chief Of Police, is proved
If not TO have fred the first shot, ceI tany TO have
fred the two that followed the first shot Blows
were dealt on both sides, missiles few both ways,
II was free fight ending It is true in the route Of
the Irish. They had not muskets with bayonets
at the point, charged with ball cartridge and three
buck.shOt to shoot into the unarmed crowd; and
they ran. Now, gentlemen of the jury, that was
the head and front of the first offending
The District Attorney says it was riot.
say 1t was an ARRAY. 1t was an Irish shindy.
Wherever you find the sons Of Erin gathered to.
gcther, you always find these shindies. This was
produced, to some extent, by the conduct Of Mr..
Goddard; occasioned by the array of that foreign
band and their position at the polls; excited BY
the retort of the Irishman, who said that he had
not his papers in his pocket, but he had brick.
What was that but challenge to ightf Why,
the brick In the Irishman's ocket was equivalent
to the glove n the knight cast down to his adver-
sary-a challenge to q tilt at arms. With the
Irish it was at least challenge to shindy An
other fellow draws his knife, and some one ex-
claims, "there Is q knife, wade in boys-jump in,
boys; we have stood il long enough" And they
did wade in. am not here to Justify or palliate
this conduct. 1t was violation of law, and the
he r.. T.: e.,
great pity that you cannot go back and punish
the parties who collected those Irishmen and
brought them there under such circumstances.
When you come to weigh the moral guilt which
attaches in this case, the deepest stain will be
found on them. But say am not the apoogist
for the assault was wrong; it was a violation
of the peace; it was contrary to law; it was vio-
lent ARRAY, in which some were beaten and wound
ed, and it ended in general fight. II was
great outrage; agree 10 that; am not here to
defend it but the question is, can you punish
them for it 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
to law--fnd them guilty according to
law-and punish them according to law; and the
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 indct-
ment charges them with riot, and you cannot iu-
qure 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
iictment, but if the evidence proves that they
we're guilty of an ARRAY, and ARRAY be not
charged, you cannot find them guilty of that os-
fence II, then, this violation of the peace at the
polls was, in contemplation of law, an ARRAY and
not a riot, however guilty these parties may be-
however much they may deserve punishment--
and ] think they do deserve punishment-you
break the law ifyou convict them you make JUS
tee mockery; and you invade the privilege of
the defence which the law has secured to them
Now, gentlemen, propose to call your attention
10 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 ceriain--but when we
come to apply the facts TO the case IL Is often un
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 mansaughtcr;
well known settled distinctions the law books give
US; but still il Is sometimes most difficult thing
TO determine where to draw the line, and whether
a particular state Of facts makes case OF murder
or reduces it to manslaughter. The leading dis
tinction is, that murder consists Of homicide done
u,on generalization with malice; mansaughter is
a homicide committed without malice upon sud-
den beat. Here we have a rot and an ARRAY, and
the principle which distinguishes murder from
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
The generalization and concert,
which in 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
on, generalization. To make riot, parties must
assemble together unlawfully II must be an un-
awful assembly. They must assemble unlawfay
and act upon generalization. An ARRAY is where
the parties assembled, whether lawfully or unlaw-
flly, make combat out Of some sudden provo
cation.
That is the difference, as defined by law, be-
tween riot and an affrny. That I may not be
turn TO an authority which has
been referred TO by his Honor. / quote from
Russell on crimes
"a riot is described 10 be a tumultuous disturb.
arfce Of the peace by three persons or more, as