Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-12-06
REMARKS OF COUNSEL FOR THE PROS
ECUTION.
Remarks of Attorney General Bate.


l doubt not to the counsel for defence that this
court has given all the opportunity for investigation
that the nature Of the case requires. am obliged,
as one for that courtesy which has been extended
20 the counsel and public officer, for the patient
hearing given the trial growing out OF this unortu
nate transaction.
/ know it is expected of this court as gentlemen
as citizens who owe high behest to'publlc morals
as conservatOrs of the peace, on whom the mantle
of Justice has been placed bya generous public that
in the further deberatiOn of this case you will give
it that Just and proper consideration that your oath
demands that the law and justice requires and that
the country expects. / have such reliance IN tins
court that believe its judgment, when 1t Is pro
nounced, will be gwen regardless alike OF eXtISneous
influences and that doctrine of higher-lawism APP
pealed to. If did not so believe, would take my
seat in very shame for the honor of the State anc
would feel like writing ''mockery" on the altar OF
this Temple of Justice We ask fair just and lni-
partial Judgment and such we have an earnest will
be given with becoming dignity by those who repre-
sent the majesty of the law, and the moral Jewelry
that clings to it, upon question of such awful I'M
port
1t is probable that trial of this kind before a
committing court. such latitude has been extend
ed either TO tae State the deence and but for its
extraordinary features would have been willing
submit il to the court, upon the conclusion OF the
testimony. without argument 1t Is ordinary IN 2,
case of this kind where person has been kllled
and the party killing identified TO give bond Tor a
pearance If bailable, TO higher tribunal either
upon an er pdTte, or without any examination; but
this has taken different turn, and | am glad for
the sake of the country for the sake OF the deten-
dant and for the memory of the deceased, that 1t
has.
Mr.. Hall has been defended ably and powerfully
by counsel without equals in defence Of criminals
There is Gov. Brown, upon whose lips the mystic
bee hath dropped the honey Of persuasion and
whose clarion notes pealed forth in accents clear,
and musical. invoking and warming the sympathy OF
the coui t-whle his exclusive fancy gathers and
clusters the flowers of rhetoric with which 10 regae
his audience Judge Bren, too, the Harry Percy OF
our bar who, with his hot spur. would ride down
all opposng forces and lash into fury the tide of JUS
tice: and next comes the Hon. Z. H. Ewing, who by
choice an untrequent visitor of our forum. like H.
gils Neptune lifts his serene brow above the pillows
and Gains their fury with glance whose: subtle logic
and refined distinctions oft makes the worst appear
the better cause'-he musters up, by legal nvoca-
ton principles and rules of practice which, with
his power Of application. are dangerous 10 an ad-
versary-and fain would uemble, but for the con-
scOus justice of my cause.
Srs. / could not say too much for Messrs- kela
and Andrew Ewing with whom am associated. II
leaves me a hard task TO perform in attempting TO
gather even respectable sheaf from field already
reaped by such blades.
But sirs, what is the case which yOu sit in sol
emn inquest,
this christian people who daily answer the call of
the church bells and knee the altar of Our God;
in the open day, upon public highway OF the town;
in the face of this hall of Justice and IN violation OF
the law citizen has beer shotdown And for what:
Shot down by one in sudden brOn, in the flush Of
passion one whose blood is youthful and fiery.
and not subdued by the experience of age and the
admonition of years. No, sirs; but shot down by
a man whose history and whose life should have
taught him better: bv who has gray hairs aboIt
his temples; by one who has clustering around HIM
all the aft ctioEs of family, Of home and ITS en-
dearments BY a man ncautiOus as 10 consequences,
or inexperienced in the worlds ways. and who Is
alike destitute of character and family! Nc. srs
But by a man of experience, of character. who has
been long upon the editorial tripod in our State,
seeking to exercise an influence over the morals OF
the country and of whom better things shoIld have
been expected.
And who mas been slain? A man. young in years,
but pjpe in mind ana fG of hope and vlgor; daunt-
less bold honorable; possessing all the admirable
traits of character which csd ~ gtqPy the knights
of old: not as has been insinuated. bIAt&l bully
ready and eager to trampe under foot the fehBt-
ments of society and the rights Of man; not an out
law or a vagabOnd; out bland. affable gallant gen
temGE the rose and expectancy OF our talr STATE
n poet a scholar. and phianthropist lie mas beeh
! cut down ~ a nEi! blown rose in an untmely mo
| ment in the morning sfa ~ the prime OF NE WIel
the laurel wreath was just e4swining about ms
| brow Has he fallen by the rules which govern the
/ .pode of bonor'-which has been so mucas tfe
subject for T3diCple and philippe by the defence!
No siTs but by biooGg assassination lie mas gone
buyt
nv hesrt 60 do it. for he was my iEiend my school
mate have known him for years. ana k4QWn MN
/ but 20 love him. hiR memory suH lives ~ ite
minds and hearts Of his epuntFymep; and nov:
while pail Of gloom hangs over tier healis. ana
they mourn him. they look with Pflae 70 ihe char'
acter and reputation he has left. lie has heeh c9t
down uutimely and you are here 20 investigate INC
vTby and the wherefore, l am not here now TO scat
ter the iscepse Of affection over his cold, cold ashes
nor wouid-i now. if | could weave garland 81
I pale flowers to entWin' about MS tomo-iS neeus
bone-its halo CT glory is brighter and better His dis
embodied spirit has leaPed info rs realms OF eter-
/ nal space!
Who has taken upon himself the right Q. bis
/ Creator, thus To hanish him from all the cluster
ing loves Of his Young and hopeful life? The right
1 TO loose the silver chord and bPeak the golden
bowl and the pitcher at the fountain? Who has ar
! rogated to himself in defiance of that sacred edot
Thou shalt not kill" the right to blot out life
bright shark from that manly, noble breast. and to
send it hura.9g in the boundess bosom of eternity
ENr f. IIl Ewing has with his usual skill and ability
/ and with more than has ordinary zeal argued the
dutV of magistrates actins as en- examining court
and i1sists that you compeeaEg decide as jury
would decide and that the same proof iLLSt be be-
fore YOU TO authorize the commitment OF the aeioG-
,Dt that ,yould be necessary to convict him before
A Jury on the trial in cblef apd spstanS ms position
bV citing tie fth division u section 49'o OF the
Code Now assume that tins 6eeuoh 81 the Code Is
| merely synopsis Of the duties ane powers OF a
! trate. auu nor q A0EuAtlOh anu NNsNt APNAsu
thereof 1t is true il says that magistrates are ap
thorized and empowered. among otseT things, Ito
/ bind defendant over 10 court II gGnty{ pBt sec
/ tons O63 AMI 1904 describe and set forth %hsi
evidence of guilt is sufficient to justify sueh emqtFs
/ over explanatory of the section 1870. Ara Blll
! now proceed TO show, that by the common law. by
the practice OF all she courts in England. by the Uni
ted States counts. &nd by the decision Of cur SUI
prone Court. as we'll as w the express provision OF
the Code that ps 5G5te cause tqT belief IN the gmlt
-, IL, a.p-EiLg
any court Of examination. to bind the defendant
/ over | will first cite sou 10 the common taF, IS
declared in blackstone by which 10 viii be seen thai
the suspicion entertained Of the prlsnRGF must be
uhogy gyolu,dleSS to authorize his discharge lie
SAYS
The ;ustos before which such prisoner is
brouobt is hound Immediately to examine the cir
cumstance of the crime 2nGged; ana TO TINS end ny
statute and Phi. ard NJ c. w. tc Is TO take IN VIII
ting tie examination OF such prls9neS %Aq ulT IN
formation Of those who bring HIM; which Ai'' lam
bard observes was the first warrant given Tor tie
examination cf felsn in tie English law for AT
! the common law memo tsGeF2tag, proasre SelpS1a'
/ and his fault not 60 be wPURg 09l 81 unsSi'
but rather TO he discovered by OtleP feSHS shF ""-
err men If upon this inquiry 1t manliestly aPpV$Fs
tbsa either no crime was committed. or that the sas
pciou eepained of the prisoner was 'ohoNg groe'H'
SS IN suc eGsz only it lawful totally to discharge
/ him Otherwise Sc Wust either he commltteu "
nyison or give bail. e4sii'y's Blackstone, al.
And again in Chttys ca7ul.I-7l law, when Is a
standard authority in this county, IS wen as IN
! Englapd. e will be that unless II spears IN
tbc ciealest SauDer that the charge is malicious -
welIas groHnslegs The defendant will not be dis
charged .,.,.I ,,,o++o. !,
manifestly appears, that either Ee such crime was
conmitted by any person. th2t ite Suspicion en-
teeined of tbe missioner was loL0Ey gromdeSs it Is
swf5 foy the the Magistrate totally 10 discharge
HIM. A magistrate is clearly bound In the exercise
Of sound discretion not to commit any one pnl'sS
prinG free ease is made out against him, by VIZ
nessess entitled 20 reasonable degree OF credit Du
if there be an express charge 81 felony on oas
against the prisoner though his guilt appear DOUBT
! fui the Justice cannot wholly disehaEge Pun pu'
must bail or commit him; and Il is SAID t4fat y =
person hey killed by another though t pc ~
iatortrni,uR, even dgeRdendO which Is 40. Plo
perly felony yet ths Justice ought not to dsciasse
him, for be must undergo his trial; and therei1r
must be sent 10 prison, or admitted to bail ANU ~
! modern practice, though excUlpGtQry evidence y
received al TIE instance of the prisoner Snd certhe
with the other depesitiops, unless il appears m inc
cearestmanner that the charge is malicious, as wei
as grOundless, 1t is not usual fOr the Magistrate 10
discharge him. even when he believes him to be al
Together innocent" Chittys Criminal Law, p IS.
! will further show from late edition of Arch
holds Criminal Practice and Pleading, with very
copious notes 10y Waterman, that If the evidence
given raise probable presumption OF the guilt the