New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1859-04-25


c0ucede for the sake Of argument, the proposition.
te denied, however, that the Divine law anywhere
Authorized the taking Of human NE Tor any yrOng,
by The person Vrouged. The Divine law did not make
adultery ~ great a crime murder That sacred
,UI4c, IT, sacred pages, bod from beginning 70
end 10 .ctar- Of living hsnt, dcuuncia:ions Of such
o. % # yiOr,e this, aud he further said, that at
no period g ti" Jewish dispensatlOn was II ever held
that the punishment Of adultery by death wa other
than judicial punishment. He denied that any text
N the Bible cOuii.nguced the idea that he who hal
been injured authorized 10 take the hle Of the
sdrlterer. DR. Paley IN discussing thls IN Of adul-
terry had referred 20 that most touching If all the
incidents recorded in the New Testament-the occa-
sion when the Scribes and PhGrsees brought To
the Savior the taken IN adultery. 1hey
said to hiIn master, this woman hath been taken
in adultery IN the very act; the law Of Moses says thai
crime shall be punished with death; what stytsl
thoul' The Evangelist adds that they sad t'i7
"tempting Him. How tempting Him Tempting
Him to take upon Himself some Judicial authority that
they might have an opportunity Of accusing MN
Finally, he gave them that notabl" answer, " l|st hun
that ~ without east the mt stone al her linen
one by one the Scrbes ard PhaTisees suuk away, and
the saviour turned ard kcd the woman Hath any
man condemned thccl' She said, "No man, Lori.
"Then,' said He, "ncither do condemn thee go
nrd sin no more" &" T. said He, "prououuce no
iatc1nent take upon myself no judicial authority;
:" 60 and san more If hi Honor would refer 10
the Greek he would find that the verb cakarhriHD,
eouvae to the Latin jB6ie0 10 pass sentence against
one It showed that at that time there no such
thing amOrg the jews as private authority To punlsh
adultery What could be more checking hat 20
irrccoucilabc with the existence Of peace and goo1
government as the doctrine that he who II grevOusy
wrouged to take into bis hands the knife, and Ia
execute summary judgment against the offender! So
Getty could exist with such doctrine. ii i were
established here IN the Capital OF the nanon, the
land would present great scene OF violence
and confusion. because the pnncipe would not
be confined 20 the single crime of adultery, but
would extend 90 all other wrongs for winch me law
did not rive the offended party adequate reparatlOn.
IIa mot n
these instructions any further. In regard to the
other instructions prepared by his colleague, he would
not discuss the second third and fourth, because they
were copied from the instructions Of his Honor in
the case Day. As to the fifth instruction the prop
ositiOn was, although adultery did not offer legal
provocation or Justification yet If the prisoner knew
that the deceased had had aduerous intercourse with
the prisoners wife and If the prisoner saw the signals
and knew their meaning, the passion excited would
make legal prOyOcatou reducing the grade Of crime
from murder 20 m0nl6ughter. IL merely asked his
Honor 20 repeat in this the old and well ettled
law on that subject. As 10 the propositions offered by
the defense they were many of them, If not all liable
to the objection Of being abstract propositions OF law,
and did not conform to the practice here. The counsel
read them. The first proposition, he said was an alb
sract proposition and liable to the objection that
his Honor would have To cOnde To the jury the tunc-
tions Of the Judge. The effect of laying down this
proposition 10 the jury, without anything more, your
Honor who is placed there for the purpose Of instruct,
ing u at the Der and the Jury a. TO the law, aud to
whom the community look for declaration Of law,
If alienation justification arising out Of The
defense Does the allevatiou mean Ia say, IN general
terms, with regard to the feelings with which men are
dsucfed TO look at the fact of killing under these cir
cuInstauces that they may find something of alieya-
ton excuse or justification Of The ac II it not a. to
the alienation which might be drawn under other
aud different ciIcums ances therefore that they find
in the circumstances of the case mode by the
prosecution. There is some alienation, II II meant
10 say. if the Jury Gnd that the presumption of
malice is rchuttcdl presume not Your Honor If To
and ..
reten for them If they believe them, TO consider an
alienation excuse justification in this case for II
must be alienation excuse justification IN the eye
Of the law /, must be what your Honor must declare
legal alienation or justification; and IT would
be- | think, taking extraordinary, not the usual
course throw the whole betorethe jury without
giving Instructions What il meant by this eluvocal
language is that the jury presumed to be acqnaint
cd with the law further than what other men know OF
IL Without the aid of your Honor it is not to be pre-
suincd what Is the law which will amount or extend 10
alienation excuse or justification. object 10 the first
lucpusition on this ground. vii say nothing about
the abstract proposition Of law, but viii add from the
fact Of killing, whenever the law pre-umes malice, II
NAV be rebutted by certain facts and circumstances
circumstance and facts of certain sort which the law
regards alienation, excuse or lnsthcaiion As to
The second the existence If malice
it is prcsumHblc in the case If, on any rational
theory consistent with all the evidence, the homicide
was either jus;ifable excusab!e, or an act OF man
slaughter. | must express my admiration al the
singular adroitness with which II has been pre-
invitation to the jury 10 consider whether, on all
they have heard in this ease the theory Of my learned
fiiend-allhOugh don't mean TO say II * his theory
alone but may be that Of the gentlemen associated
with hiu-whcther the theory OF the homicide was
excusahlc under these circumstances and whether l.
a rational theory: and that if the jury think is then
the existence of malice is not prcsuinable. While
acknowledge 10 the fullest extent. the right of the
Jury 70 give n general verdict of guilty or innocent, as
they may think the facts and the law require deny
thai is the province of this or any Court to invite the
Inry or Ia submit Ia the Jury The application Of
counsel the question whether the law BE- thus We
had better ray il with the most perfect respect
abolish the Bench entirely Il such practice Is to prevail
and trust the jury, without any interference Oi the
Judge. know Of no authority prcc dent, on the
face of H. bv express terms, which includes subms
SION TO the jury by the Court Ia what Is the law of
the case. They. and not your Honor are 10 determine
whether there be rational theory Of justification in
law in Gny view Of the evidence Of this Your
Honor j. 10 tell them what is justification in law and
it is for them to form their opinion.
As 10 the third pOut-nalney, that # there boz any
rational hypothesis, slant with the conclusion that
tie homicide wus iustihabc cxcusGble, the defend
an, must be acquitted; this substantially the same
A. the second only that it was more boldly stated.
In the fourth proposition, the defense undertake 10
save the prisoner from conviction for manSlanghter
by saying that, if the jury believe tia, hT. sckles
intended to kil Mr. Key he cannot be convicted Of
mauslaughtor. Re submitted however, that 1t did
not follow that because Nr. Sck'os intended 10 Kill
AR. Key, he could not, therefore, be convicted Of
mauslaught lie could suppose many cases where 4
party does intend 10 Kill the a-saant, and does kali
him and where the act falls short OF murder, and II
mau-'suChter.
The fifth proposition was again asking your Honor
voluntarily 10 ndor into The hands OF the jury The
functions Of the Judyethe whole iuvcsgatiOn on the
whole question Of lHw and fact. II Eis Honor did that
society would De- exposed TO those doctrines that
inconsistent With the existence of civil society. The
Jury would Be referred 10 their own conscience with