Year: 1859




prisoner at that time which he could lose by the
repetition of the offence? Do they mean to say
that he would have been willing to take his wife
back to his arms after adultery for months, and
would have done it, had it not been for the discove-
ry Of the intention of the deceased to repeat the
act? He fanced not. 1t is contended on the
other side, not merely that killing the deceased
was not high crime, but that it was no crime,
at all. So far from that, it is called an act of
piety. 1t is said that unless he had right
to kill Key, the compact between him and So
ciety would be broken. He is regarded in the
light of person coming from some other sphere,
and saying he would enter civilized society nro
vided they would protect his wife from adul
terry, and they agreed to do it, whereupon he con-
descended to take up his abode among u.s. The
compact having been broken by the failure of the
benighted inhabitants of this District to pass laws
inhicting suitable punishment for adultery; then
we are told that he had right to fall back on the
higher law. They tell us that woman must be pro-
tected from hersef-from her own frailty; or else
from the well-known character of woman, an adul-
terer has only to beckon to her and wave his hand
kerchief at her, and she will yield herself willing
victim; not this woman in particular-but all
women! He would not trust himself to refer to
this doctrine as it ought to be referred to. They
say that adultery is no crime in the eye of the law
and on that ground how man be justified in
taking the life of an adulterer to prevent crime
But it was not so. Adultery is crime, and has
been regarded a crime by this very Court But
1t is not such crime as to authorize any man to
take the life of person meditating that crime


Mr.. Brady-Was this an indictment under statute?


MIR. Carisle-Law writers have differed on that
point 1t is crime according to an old statute OF
Maryland.


Mr.. Magruder-The punishment is fine of three
pounds sterling or twelve hundred pounds of tobac-
CO; that is all.


Mr.. Phillips thought the labored effort of the
counsel to conceal from the jury, rather to ex-
clude from their consideration, the ground of prov
ocatlon which induced the commission of this act
was rather worthy of the hustings than the har
There is not in this broad land spot where jury
can be found who can render a verdict such as the
prosecution demand. The gentleman regards it as
case of murder and nothing else, and if it is mur-
der the Judge who administers the law will so de-
clare it.


Mr.. Carlisle interrupted to explain the position
OF the prosecution, which, he thought, was misun-
derstood on the other side. He had said that, as a
man and Christian, he would not seek to exclude
any legal evidence that could be offered in behalf
OF the prisoner; he said so STILL


Mr.. Phillips resumed.-While in this matter he
telt as father and a husband-a feeling which he
had no doubt was shared by every man present-he
had come into the Courthouse endeavoring to sup-
press those feelings and to think and speak as a


lawyer. The evidence offered in this case is offered
as bearing on four points: lst, justification; 3D.
provocation; Sd, insanity; and 4th as explaining
the words uttered by the defendant at the time of
the homicide and proved by the prosecution
How lar this evidence was proper, to show the
upon which the passion in this case
was to be Justified excused, was the only point
to which he now proposed to speak.


hat is the inquiry? because that lies at the basis
ofthis discussion. The indictment sets out what
the inquiry is. 1t sets out that the defendant in
committing the act was moved or instigated bv the
Devll-by which Mr.. p. understood nothing more
than that he was instigated by his own evil heart
or his passions, following an old form of phraseolo-
gy whlcn would be more ''honored in the breach
than in the observance. That same evil spirit was
set out in more legal and technical language in the
the conclusion of the indictment, in which are
found the words, "murder' and ''felonousy''
all these words and descriptions imply the malice,
or premedltation upon which the law alone will rest
an accusation of murder. The distinction between
murder and manslaughter was here alluded to, as
being well defined and established. To sustain this
Indictment, the existence Of malice must be proved.
In reference to this question of malice, so necessa-
ry Is 1t to constitute murder and to sustain an indct
ment for murder that in cases where there has
been express malice shown, old grudge, or
threats, and there was killing subsequently, yet if
fresh proyocatiOn calculated to excite the passions
had interVened between that old grudge and tina
commission of the act the law refers the killing to
the new provocation and not to the old grudge or
threat In order to rebut the presumption of NAL
Ice In this case they had already shown the kindly
relations which existed between these parties for a
long period, dating down about to the time of the
commission Of the homicide. Now, they proposed
to use the other mode of rebuttng the presumption
OF malice by showing the passion and the provocation
which led to that passion. In reference to the first
mode, the rule was well laid down that expressions
OF good will and acts of kindness on the part
OF the prisoner towards the deceased were always
CO nsidered important, as evidence showing what
was his general disposition towards the deceased
from which the jury might be led to conclude that
his intention could not have been what the charge
imputes That doctrine had been recognized by
this Court. Then they come to the second mode of
rebuttng the presumption, by showing the provo
cation and passion connected with that provoca-
ton; but here they met with an objection on
the part OF the prosecution and were told that no
matter how true or how great that proyoeaton
been there n bTil nv tha
law which excluded it from the consideration of
the jury. He referred to the case of the State rs
Bell IN Addlson's REPORTS, page lG2, where the
decision Is given that ''passion arising from sutl-
cieDt provocation is evidence of the absence of
malice" The defence thought they had proved the
passion, and all that remained was to show that
tins passion arose from sufficient provocation,
In order to rebut the presumption of malice
and change the character of the offence. In
a case already cited, father who killed the man
who had beaten his was indicted for murder
and was allowed to show the prOvocaton, in miti-
cation OF the offence; but yet in a case where a
man who commits adultery with the wife of the
prisoner is slain in consequence of the SLAYER was
to be forbidden to show that the passion under
which he Killed was produced BY that provocation
That was the proposition. A clause read by one of
the counsel described the provocation of adultery
as the greatest provocaton which could be inflicted
upon human being the language of the Judge be-
ing that 1t was more than human nature could bear.
Ii adultery be the greatest provocation other pro-
Tocat0ns must be lesser-the killing by father of
one wEo had beaten his son was not done under the
greatest provocaon. 1t is therefore contended that
Thlie we can show the less provocation we cannot
show the greater! That was the argument fairly
stated, without any gloss whatever.


Then gain they We're told that if the husband
sees his wife in the act of adultery, such provoca-
ton and such passion induced by the provocatiou
would mitigate the offence of murder; but if he
did not see it, the case is different and all the ag-
gravation that the mind can conceive forms not the
slightest nrovocation in the eye Of the law for the
lct of killing. The word laid down in most of the
books is 'fHdS and not sees: but the counsel in
,erprets it to mean to He must see with his
own eyes the act of adultery Now, what is the eye?
We have the eye, the and the touch all of them
we're messengers to the mind, which is the seat of
Consciousness and arbiter of the human will Why
it that if the mind directs the body-for it is in
he mind that the knowledge is obtaned-why is it
hat it is only through one of these messengers of
The mind, the eye that the knowledge which is de-
'Iyed Is to be proper subject of human ac-
Ion 7 In many cases there might be a knowl-
edge derived with just much accuracy
md dehniteness through the ear. What if a
husband, having seen a man enter into his
oed chamber where his wife was, should apply his
ear to the key hole and hear those evidences which
could be indicative but of one act, which it was
Unnecessary to describe or paint? What if he
hould then slay the adulterer? Would gentlemen
lrgue that that was provocation because he new
r saw the thing and it only through his ear
hat his mind obtained knowledge of the aduterY2


lie also referred to where neither the eye
u IhC car, uuI Oily Lne bOuCH ndu Detu lnNONeu
Is messengers of the mind In the course of his ex-
'erience he had been engaged in three cases
,t homicide under these circumstances. In one of
hem the facts would serve to illustrate the point
lie was now considering. A stevedore, whose busi-
ness it was to be with the shipping in the lower
part of the bay of Mobile, where Mr.. P. then resd-
I'd, after absence of some weeks returned to his
nome. He arrived about midnight and went to his
house. On entering his bedroom, he nothing-he
heard nothing. He advanced to his bed, and on put
ing out his hand he felt man there. He drew his
inife and killed him on the spot, and then went to
he door and called for neighbor to bring a light.
\ light was brought and placed to the dead mans
ace and he then found what has been found in this
ase, that the who had grievously wronged
i'm the man whom he had held most dear to
is bosom his friend. In this case (Which would
e equally good for an illustration were it not
act) it was the touch that communicated the know
edge of the fact to the mans mind. Where was
he of the idea upon which we were
old that provocation of this kind is worth any,
hing in Court OF Justice except it be presented TO
be eye?


The usual hour for adjournment having arrived,
lr Phillips gave way at this point of his argu-
lent, and the Court adjourned.


MASSACRE OF 800 MES-The Co,rr;o. d.. H..