, 1859-04-18
BY TELEGRAPH.
THAI Of Dan. Il. Rlekles for the XIII.
ing of p. MnYf0n Key

deliberattion or 1nalice prcpense; 4th, that the
malice Of the law implied wicked, dcpraved
7aad malignant spirit-a heart regardless of So
cial duties, and fatally bent on mischief; 5th,
out OF q pnst grudgc, If there had been new
provocation intervening, il was not 10 be pre-
suned the killing WINS on the old grudge; 9Th,
TINT in cases where the law presnmes mAlite
from, the act Of killing, this presumption may
be rebutted by expressions Of good will and
ward the deceased, always considered important
evidence as showing what was his general dis
position toward deceased. from which the jury
may be led to conclude that his int ,ntion
could not have been what the charge imputes;
quoting I'd Russell, p. 6ae; that this prcsump-
killing was in passion-for passion arising from
sufficient provocation, is evidence Of absence Of
malice Quoting from the Commonwealth eersus
Ball, p. lfo} 1th, that MS the Law declares adult
cry to be the greatest Of nll provocations, there
could be no such legal absurdity as permitting
evidence Of the greater; sth,, this brought nc
10 the consideration Of the admission Of the pro-
sccutlon, that if the nccused had seen with his
own eyes the very fact Of the adultery, then the
prosocation could be giyen in evidence, not
otherwise. This he demonstrated to be wholly
unreasonable and fallueiou:s, BY proving that the
eye, the ear and the touch were but mediums
through which facts were transmitted to the
brain, and Tint this governed the will and de-
cided the action BE WINS illustrating the position
that the knowledge Of the adultery at the time
Of its commission could be as definitely conveyed
to the mind BY the ear or the touch, as by the
eye, and cited examples to this end, wien the
adjournment Of the Court took place.
AE. Philips closed between one and two. lie
demonstrated that the dictum Of Lord Hale in
the 1addy case applied only to the specific
facts in that case TINT it is antiquatcd and fails
fk,s L. nF Ear Hfy-
and that OH no reasonable ground can it be made
to operate on the court here. That dlctum re-
duced the offcnse Of q man who killed the
seducer Of his wife, having caught him in the
very act, from murder to manslaughter. But in
that trial there was q special jury, which was
=, permitted to enquire into the prisoners intent
lie had yesterday presented L case in illustra-
tion Of the falsity md absurdty Of the
doctrine that man must see tie
act Of adultery to cntit!e him to
set it up in justification. he might also illus
trate the same idea Of blind man. He had
scene Mt an English hustings, where m old man
with the SHOWS Of many winters on his head,
and without his right arm, which he had lost iu
the service of his country, came up to vote.
The old man was challenged, and the Judge
declared TINT inasmuch US the form of oath re-
hund upon the book, and Us this man had no
right hand, he wns not competent yoter.
That doctrine was about Us absurd as the doc
trine Ibid down By the prosecution, that the
husband must find the adultercr in the very
act,
Suppose the husband found the adu!tcrcr in
his wiie's bed, in state of Quicsrtncr, Or found
lin disrobing or clothing himself in the bed
room Of his wife. would il be held that that fact
would not be legal Justification.
The District Attorney did not know TINT there
was any well-dcfned line in this matter.
Mr. Phillips replied that there was no reason
for this rule, as in the nnture Of things it would
be impossible to make the proof; aud when the
reason Of the law does not apply, the law itself
ii at IN end. Did not tue adulterer invariably
endeavor to shield himself from detection: Be-
sides. if the husband did find the PARTIES in the
act, how was it to be proved The league o.
the ndultcreT is palsied; the tongue Of the wifi
is silcnced by the law, md the prisoner canno
give cvlden& in his nwn case. 1t WAS not
therefore, the mere witness If tho fact, hut tht
knowled &c of il, however derived, which sting.
the human passions utd lashcs 1ilcm into fury
and it the adultercr is killed in the transport O
passion thus aroused, the law which is u ruiz
for the government OF mau, has regard to tht
trailtlcs which hung around the human heart
Tho most liberal Interpretation Of the laN
docs not require that the killing should be con
current with the net If adultery The couuse
referred to lst Russell, pages i and s. 10 sllow
That though tue killing may be subsequent, i
and upon revenge. Counsel also discussed thu
case Of manning, in which he said this prosccu
tlan entirely rested, and even there the Judge.
unanimously declared that the killing was bu
1nanslauEalter, and the prisoner having clergy a
the bar, the sentence was that he be burned ii
the hand; and the Court directed the execution
cr to burn the land very slight1y-as adultcr,
WIS the ereatcst proyocation that man coult
receive, and too much for him to bear.
With view Of testing this matter still further
suppose they were to convert this judicial reso
lut'on OF the Judges in Manning's case into :
statute ng!'nst adultery; that any person fount
III the act should suffer such and such punish
mcnt: and Il person we're indicted under thn
ssatntc. what amount Of EVIDENCE, he would ask
would be necessary to convince the Jury thu
1hc offence had been committed! Would it bt
Tor moment commended that thu Witnesses mus
utes OF massachusetts, declared lint any part,
who had been guilty Of the crime Of adultery
should $Ntter SO and so, and then what evidenc'
was necessary to convict man under it. H.
Tnuld read some Of the decisions.
The cn,lnsef referred to tlle caec Of the Com
tnonwcalth vs: Norris. lst yol Gushing, p 3a4
and alsu to vol. IA Pickering. r. ,ls, in the cas-
nf the Commonwealth rs. Morrow. The rnl
was tho same in ether :Statcs and in the EnglsE
Courts. lie referred 10 thu case Of the Stale rs
WALLACE, y IL. fcpurs, and to a case in Ala
1ama, lie also referred to the opinion Of Lore
";'""e', ~ :, Hitet'ea' seslocnce, "here II J
declared tha, it is not necessary 10 prove til
fact Of adultery, but to pruvt such fac,
ais led IL the inevitable inference TINT the cenc
had been committed. The circumstances mus
be such us III lead the guarded opinion Of dis
Greet man 10 such conclusion. Counsel wouls
ask whether the knowledge on the part of iii
husband of adultery is required 10 be- greate
and 1nore complete, in order to justify tn
pr>vucafion. tllun would be required bv
Jury Of twelve deliberate aud impartia
n'cn tu convince tllcn, il they wer,
tryin, the very issue Of adultery. 7,
:ask that, would be to reverse all our notions j,
reference 10 the principles Of law and in refer
cnec 10 thu principles Of humanity. In 1hc cas-,
OF John, reported in Ircdcll. ,Iolln WIS n aiaye
aud there being no marital rights recognized u
Between S1uvcs, there could be no adultery bu
the eannscl the other side had said that thcr,
WIS no distinction in law between slaves ak
trrrIuvn.