Year: 1859

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possibly might detract from the aggravated hue of
the occurrence that sought to be put upon it by
the prosecution, the learned counsel for the govern
ment stated that he put the question intending that
the witness in his answer should discriminate be.
tween what be and what he heard You will
remember that the honest Judge upon the bench
and can never forget that occurrence no. not even
to the latest hour or minute of my exstence-you
will remember his saying, not in spirit of severe
but rather of kind reproof, that when witness
was put upon the stand, no matter what he
was questioned, he put there to tell the truth
the whole truth, and nothing but the truth; and
it was the duty of the Court to see that
the witnesses were protected in stating all
the information which they may have gained
upon the occasion in question. Now, gentlemen,
ask You why is it that this prosecution is thus tech
nically managed? Is there anything behind which,
if it escaped would satisfy the jury that this is an
unhaowed prosecution-I do not mean by this to
impeach the integrity of the authorities in any way
but unhallowed in the sense that it ought not to
succeed through the instrumentality of an intelli
gent jury? Is there anything in the prosecution
which requires that this should be tried in the
way it has been-that from this jury all but proper
ty holders should be excuded-that in the opening
address of the learned counsel for the government,
the occurrence should be presented in hues which
the facts did not impart 20 it--that the aid of
extra counsel should be invoked to sustain the
prosecution, and that witnesses should be examined
In particular way, as to exclude from the minds
of the jury that fact, which, when it becomes
part of this case, must incline the scale in favor of
the defendant? 1t will be for vou under the differ
ent circumstances as have urged them to you to
account tor these extraordinary features in this
prosecution.


In relation to your province, gentlemen of the
jury as understand it, the Court has invested you
with the largest powers. | have read several of
the charges of the learned Judge upon the Bench
to luries, and find that he is imbued with spirit
which has been only eXemplified in an equal Degree
IN one instance to my knowledge, by any other
Jurist, and that is, by the great Chancellor Kent.
"a n taStn nh fhat,
country was, probably, that great and now de-
ceased Jurist; and the same spirit which seems to
nave entered into the instructions and judgments of
that learned jurist with reference to the rights of
lures seems to have entered into the judgments of
this Judge. As understand it, everything is to
passed upon by the jury-not only the facts enter
ing into the occurrence which is charged as
crime, but the state OF mind, the intention and
mot!e That influenced the conduct of the defend
ant IN the commission of the act for which he is
now arragned as criminal before you


Mr.. e. then proceeded to give the legal definition
OF murder and manslaughter, as laid down in Black
stones stone Commentaries. Murder the unlawful
killing of reasonable creature in being "under the
Kings peace" with malice aforethought, either
expressed or implied. As we live in a republic
mere 1t was under the peace of the people of the
United States. He asked whether at the time of
his death, the deceased was Gin the peace" of the
people of the United States-whether an aduterer,
when he went out upon his mission, did not cease
to be in peace of the community, and was not
making direct war upon those grand fundamental
principles upon which not only the institution of
marriage itself rises, but upon which our social
fabric is founded? He likewise quoted several ex-
tracts from Fosters Crown Law, which, although
an old treatise he regarded of the purest and
most reliable fountains from which LEGAL know ed ore
could be gained. These showed the legal definition
OF mdttce; and this was important matter, be-
cause the great question to be solved in this case was
what was the state of the defendants mind at the
time he slew the man who had contaminated the
of He had tba 6,,t
when the witnesses examined, that some of the
jurors taking notes of the evidence; but as he
understood the case, it perfectly immateral
how this death was inflicted whether it was the
result of one shot or of thirty-whether the man
who was killed stood up or lay down. What were
the provocations upon the mind of the man who
slew him, was the real question. That goes behind
the act, and brings into the case the mental condi
ton of the defendant at the time he took the life of
the deceased-whether his mind was perfectly self
possessed or not, and whether he was actuated by
malignant feelings. If it was a crime for husband
to defend his humble family altar, and if death was
to be visited upon him for defending it, then the
highest honor to be conferred upon any man was to
compel him to die such DEATH


1t was particularly to be noticed-lst, that hu-
man laws did not shelter in the endowment of all
our rights; I'd, that right created bv divine law
was perfect, though not re-created bv human laws:
and third that to certain relations the divine law
has attached responsibilities to execute which is
not an act of crime. These two first considerations





system did not reach the case of every wrong that
could befall us. There were certain wrongs that
we were not protected against BY human laws at
all, and therefore the only law that protected us
against them was the law which was traced in tie
human bosom By the finger of God-the law of hu-
man nature, the law of human instinct; and when
human laws do not protect us against Injuries
which appeal to our instincts, then we are thrown
upon the law OF our instincts, and have to defend
ourselves against these wrongs. There was no law
which says that the man has right to protect him
sell against attack except the law of nature; it
would be folly to pass such a law. Selfpreserva-
tlon Is natures great law, and it overrides all other
laws. If two men were floating on plank which
could only sustain one, one of them would have a
right to drown the other to save his own life But
is man to have right merely to save himself and
not to protect his wife and little ones? Is he to
be governed by such selfish considerations as that


BY the'Bible the right of to protect his wife
against contamination is made a natural right and
both by divine and human laws the defendant was
to be Justified. Human legislation could neither
add to the guilt of those crimes which the divine
law condemned nor could it take away those rights
which the divine law granted. No protection had
been provided against the adulterer by human
laws; and unless man was to protect himself he
would not be protected at all, He must defend
himself and his own-not defend himself merely
and let his own be taken from him. Ought not a
man to have as much protection against an aduter
er as against ahousebreaker? Has society redeem
ed Its compact when it protects your property
against the burglar and even gives you the right to
say him. but yet, when you leave your house dur
ing the day to pursue your honest toll, allows it
to be polluted by the tread of the adulterer p
Inc reason why society has not provided
penal legislation against the aduterer, is that ii
considers the right of a man to defend himself
against the aduterer perfect under the divine
law, which confers upon him the right to defend
himself against that malefactor just as against any
other violator of his natural rights There Is
nothing in this doctrine revolutionary, or subver.
sve of the peace and good order of society," because
where society has protected US, we are not thrown
upon the law of selfdefence. Where society has
not done 1t, we are thrown upon that law. In this
District there is no law to protect man against the
aduiterer except that law implanted in his heart
by the Great Being who made him. The
law allows man to take the life of a
burglar who is caught in the act; and if
human law can give you the right to take the life
OF man while committing an offence, which it ha,
made an offence, why have you not the same right
under the divine law to take the life of a man who


IS committing an offence which that law has con-
demned? By tbe divine law it is Just as aggrava-
ted an offence to contaminate the wife of youl
neighbor as it is to enter the house of your neigh
Dor by night. If human law can confer upon YOU
the right to XII the burglar, divine law impar
the right to kill the adulterer. He would not as
sumo that man had right to do this in cool
blood, because this not that case. The de-
ceased was caught, if not in the very act, of adul
terry, at least so the act as to leave not the
least doubt of his guilt and he had committed the
act before


Here the Court took a recess for few minutes.
Mr.. Graham continued-This was an important
point say if society does not protect YOU in the
enjoyment of your wives, your right remains to yor
as at nature, and you have the right to assert it
the extent of killing This action is based on tn,
principle of sefdefence, which extends not merely
to yourself but to your own. He would show by
the Bible that adultery was one of the most serious
and heinous crimes that could be committed
might be said that Sickles had civil remedy anC
could have brought an action for damages WoulC
this have staunched his wounds? Could the purit,
OF his wife be paid for by few paltry dollars p
Could that course afford any adequate satisfaction
| for the injury inflicted? If a man comes into YOU
| house and lies your bed, he commits trespass
and you can repel him by force. If man come
into your house and lies with your wife, and rob
her of that which cannot be restored and for whcl
! no recompense can be made; can you not repel thi
| invasion bv force?


Lastly, there certain relations involving thu
greatest responsibility and investing you with com
mensurate powers for their protection. These ar,
the relations of husband and wife, and parent ant
| child. The brother may not avenge the wrongs o


his sister, unless he is present when the offence i
| attempted, because his attachment is only that O


blood; but the relation of parent and child HUSBAND
and wife, is not only one of love but OF protection
and in the discharge of that duty the right to xii
is given. The child and the wife are the inferior
! OF the parent and father, and claim protection O


the Others as their superiors. This idea of inferi


orty on the part of the wife gave rise to the tern


of petit treason, applied to the act of the wife


rebelling against her husband, and assimulated t.


the act OF the subject in rebelling against the soy


ereign, which was called high treason The hus
| band had the same right to kill the wife for an &C


OF rebellion as the sovereign to punish his subject
| for the same offence This principle rested upo,


the divine law. The husband the master AM