The Sun. — 1846-08-28 (London, England)

SMITH. We conceive that a very great distinction exists between his case and those in which the extreme penalty of the law should be enforced. Wherever it is clearly and distinctly proved that the murderer perpetrated his offence in cold blood, that the crime was the result of premeditation, and that he had coolly and deliberately made up his mind to take away the life of a fellow-creature, and had carried into execution a previously planned intention, we should not come forward as the advocates for the extension of mercy, or interpose ourselves between the criminal and the punishment demanded for the blood of his murdered victim ; but in the present instance we think that every circumstance indicates in the clearest manner that the act was not one of premeditation, but the impulse of the moment ; that the unfortunate man, goaded to the utmost extent of passion, and excited to madness by the reproaches of the girl, the provocation offered, the abuse so freely poured forth against him by one who was indebted to his recommendation for her employment, committed the rash act that may lead to his ignominious and untimely end ; that under the most favourable circumstances must change the character of his future life, and make him a wretched exile from his native country, his family, and friends, expiating his offence by the heaviest secondary punishment known to or sanctioned by our law. One of the points that must be alleged in an indictment for murder, the gist of the offence, without which a conviction cannot take place, is " that it was of the malice aforethought of the prisoner." The law has humanely made allowance for acts committed in the heat of passion, and without premeditation, and provided that when upon a sudden quarrel two persons fight and one of them kills the other, the offence shall be .considered manslaughter only. In like manner, if one greatly provokes another, and that other thereupon instantly kills him, it will also only be manslaughter. Many subtle refinements and nice distinctions have, however, from time to time been introduced, and malice will frequently be implied, and the offender found guilty of murder, although no malice may have been expressed or openly indicated. In such cases the French law permits the addition of guilty with extenuating circumstances, and in such cases the extreme penalty of death is never inflicted. The English law, however, does not sanction such finding ; in such cases, the only prospect of mitigation of punishment consists in the extension to the prisoner of the prerogative of mercy by the Crown. But the jury have the constitutional privi:ege of ncominending him to that mercy—a recommendation to which much weight is invariably attached, and which is most frequently attended to. In the present case the jury exercised that privilege in the strongest manner; they did so in consideration of his previous good character maintained during a service of no less than seventeen years in the same situation, where he had continued respected and esteemed by his master and associates, from the time he was fifteen years of age; and, secondly, on the possibility there was of provocation having been given, when none but the deceased and the prisoner were there. The Learned Judge who tried the case did not, however, hold out the slighest hope of that mercy being extended. This, perhaps, may not be his feeling to the fullest extent. He might have thought it an act of humanity not to permit the unhappy man to indulge in a feeling of hope, which possibly might not be realised, to induce him to devote that which might be the short remainder of his existence to an earnest repentance, a zealous preparation for the awful change that awaited him, and to awaken his mind to a deep sense of the magnitude of the crime he had committed. That Learned Judge could not speak with certainty as to the course that would be adopted by the Executive on a full and attentive consideration of the case ; and it therefore became his duty to address the prisoner in the disheartening and hope-effacing language used by him on the occasion of passing sentence. A similar course is invariably pursued by his judicial brethren when pronouncing a doom that may possibly be carried into execution. 'We cannot, therefore, consider the address of Baron PLATT as conclusive : he only discharged the painful duty imposed upon him by his high and important office, and we hope that he may be found aiding by his influence the recommendation so earnestly offered by the jury.  One of the benign principles of the English law is, that it is better that ninety-nine guilty men 51490