Burlington free press. [volume] (Burlington, Vt.) 1827-1865, 1859-04-15
MR.. SICKLES'DEFENCE.
ne E,I,,or If ybo ~ V Trib,i,s

great difficulty in fixing upon any particular
limo Of defence, plansihlv consistent with the
established principles Of law.
Mr. Graham begins with insisting that the
prosecution has not made out prima facic
case. The doctrine hitherto uniformly re
ccivcd in all criminal courts has been that
the act of killing being proved, the party
who kills shall he presumed to have done the
vet Intentionally and mnlcously. and that
it rests upon him to show the contrary Mr..
Graham insists on the other hand that when
one man kills another, the lcga presumption
is that he did it either unintentionaIlv, ius-
tfahlv or insanely, and that it rests with the
prosecution to negative all these rrcsump-
tons II must be recollccted that Mr.. Grn-
ham is member Of our New York bar. He
has got his idea Of modern law, we presume.
from the decisions Of our Court Of Appeals
Even that Cou't, however, has not vet gone
quite so far MS this, though the recent Police
case seems to be II decided step towards it.
The next point set up by Mr.. Graham is
that it is no otfense to kill mn adultcrcr. Be-
fore acqnittng the prisoner on this ground.
it would seem to be rather important that
the Jury should be satisfied that Mr. Kew
was an adulterer. But here Mr. Grahams'
idea about the presumption Of innocence
seems to undergo a com plete and total change.
Some of tho witnesses to the killing testified
that when Sickles was appealed to not to
continue shooting the PROSTATE and dying
Key, he replied Il" He has violated my bed"
and this hare declaration of Scklcs must.
according to Mr.. Graham, be taken as true.
unless the prosecution show to the contrary
and having closed the case without showing
it. they are bound by Sickles' declaration
md bo 81 hot
adultcrer. Taking this fact as thus estah-
lshed, Mr.. Graham goes on to insist that
adultery is n very hcinous and aggravated
crime. Yet the law, except in few States.
docs not punish it. and even in those States
the punishment is inadequate. Mr. Graham
insists that the true, proper. rightfnl and on
y adequate punishment Of this offense is that
prescribed by the Mosaic law---the death Of
the aduterer; and, MS the law Of the land
| has not adequately provided for this case. the
| higher law, the divine law, the law Of hui
man nature and of instinct intervenes and
it becomes not merely tho right but the duty
| Of the injured husband to inhict this punish
| ment Of death.
IF Mr.. Graham should succeed in estab-
fishing the principle that in all cases in
which the laws failed to provide an adequate
remedy for wrongs inflicted, the suffering
party has legal right to resort to the law
Of human nature and INSTINCT very re-
| markabe change might be expected in the
criminal Jurisprudence Of some Of the States
Husbands are not the only persons for the
invasion Of whose rights the law has provi1-
ID no remedy or none ut all adequate. The
| legislation Of the Southern States and of the
| District Of Columbia fails to give the ave
any protection whatever against any wrong
| however great, which his master may be i'm
| PEELED by rage or passion to intlict upon him
| According to the doctrine above stated, in
defect of human law, the suffering party in
these cases has right legal as well as n
moral right. to throw himself on his instincts
and to punish the aggressor.
| Mr.. Graham seems to esteem it the great
if not the only duty Of n husband to guard
the purity of his marriage bed Nor does he
seem to think that any other adequate means
for so doing exists, except that of putting
the adulterer to death. The wife being the
weaker vessel, it is, he tells us, the duty of
the husband to protect her against fiailtv as
much as against the violence OF the ravishcr.
lie does not appear to place much confid ncc
| in the power Of women to protect themselves.
1t has been u common idea that the purity
| Of women is mainly to be secured hv their
|
| opinion that but tor the guardianship OF
husbands. not in keeping these frail wives
ont of temptation. hut in furnishing adulter-
crs with death, female virtue would totally
| TAIL of adequate security. and it is in this
character of Il guardian Of female purity
that he especially commcnds M. Sckles to
| the favorable consideration of the jury.
| From the extreme length at which he read
| from the Old Testament and the New-rath-
er an unusual feature in forensic eloquence-
| there seems reason to conclude that in the
volumes more usually cited by lawyers he did
not find anything 10 his purpose yet, how
ever strong his Bible quotations might
he in favor of severe law for the
punishment Of adultery they do not
seem to - very far to establish the proprietv
Or expadiency of allowing private ven
geance to take the place of public Justice. -
| Indeed at the conclusion Of his Scriptural
citations he himself strongly illustrates the
dangers which attend upon this method Of
preceding, since his argument seems to 90
the length of subecting to the punishment
OF death by the hand of the husband not
merely the actual odulterer, but every man
who may have looked on that husband S
wife with eyes of desire, or, in the language
OF Scripture, may have committed adultery
with her IN his heart.
Having established, as he seems to think,
that the killing of an adulterer by the iniur-
ed husband is not only justified by the nLtu-
raj instincts of the human soul, but is an ex-
press duty of revealed religion, Mr.. Graham
proceeds to argue that the law will not in
teriere to punish n man for yielding to this
instinct, and fulfilling this religious duty.
The doctrine is laid down in some law books
that for husband to kill an adulterer taken
in the fact is not murder, but manslaughter,
and that of the least criminal description.
To this doctrine Mr.. Graham undertakes to
give new extension. Iio argues that the
provocation and excitement are what the law
looks to, and that these are Just rs great
| where the husband is satisfied Of the nfdeli-
ty of his vito by other evidence, as where he
reaches that conclusion of tho testimony of
his own eyes. This seems plausible, but
Mr.. Graham's tOndness for quoting Shake
spear betrays him forthwith into an answer to
his own argument. He cites with approba-
ton. and as showing the ahsurdity of de-
handing ocular testimony, lagos speech to
Othello, the very speech by listening to which
OthelO was put up to the murder of an in
nocent woman. However we'll it may an
swer to allow Courts, proceeding cautiously
and deliberately, weighing every piece of
testimony, to base their decision on circum-
stantial evidence. it will hardly do to con-
cede the same privilege to Mr.. Graham's
selEconstituted defenders of female purity
and sclf-appointed instruments of divine VEN
geance, who, beside these high motives OF
the defence Of woman and the performance of
religious duty, may be apt to he carried
away, not only by their own passions, but
by the instlsation of misunderstanding adj
yisers,
Toward the conclusion Of his first days
speech, Mr.. Graham substantially abandons
all the lofty grounds which, at the beginning
of it, he had undertaken to occupy in his
clients behalf. The scene changes. Mr.
Sickles no longer appears in the difficult and
heroc character Of a defender OF femnle nmri.