Year: 1859

the Jewish dspensation was it ever held that the


punishment OF adultery by death was other than a
judicial punishment


He denied that any text in the Bible countenanced


the idea that he who had been injured was authori-


sed to take the life of an adulterer DR.. Paley in


discussing this sin of adultery had referred to that


most touching of all the incidents recorded in the
| new testament-the occasion when the Scribes and


Pharisees brought to the Saviour the woman taken
in adultery


They said to him, "Master, this woman hath been


taken IN adultery, in the act the law of Moses
says that crime shall be punished with death; what
sayest thou?''


The Evangelist adds that they said this "tempt-
| ing him." How tempting him? Temptinu him to
! take upon himself some judicial authority that thew
| might have an opportunity of accusing him.


Finally he gave them that notable answer slet
| him that is without sin cast the first stone''
| Then one by one the Scribes and Pharisees skunk
away, and the Saviour turned and ask ed the woman
| "Hath any man condemned the?'


She said no man, Lord Then said He, neither
! do condemn the, go and sin no more"
l, said He, pronounce no Judgment | take
upon myself no Judicial authority, ego and sin no
more.'


If his Honor would refer to the Greek he would
hnd that the verb was catachrno. equivalent to tie
Latin 1"dico, to pass sentence against one
1t showed that at the time there was no such
thlng among the Jews as private authority to pun
| ish adultery.


What could be more shocking, what 50 irre-
concable with the existence of peace and good
government, than the doctrine that he who is grie-
vlousy wronged is to take into his own hands the
knle' and to execute summary Judgment against
the offender?


Society could not exist with such doctrine IF
it were established here in the capitol of the ma
tion the land would present great scene of vi
olence and confusion--because the principle would
not be confined to the single crime of adultery
but would extend to all other wrongs for which
the law did not give the offended party adequate
reparation.


He did not know that it was necessary for him to
argue these instructions any further.


In regard to the other instructions prepared by
his colleague he would not discuss the second third
ana fourth, because they were copied from the in
structIons OF his Honor in the case of Day
AS to the nth instruction the proposition was
although adultery did not offer legal provocation
or Justhcatlon yet If the prisoner knew, that the
deceased had had adulterous intercourse with the
prisoners wife, and if the prisoner saw the signals
ana knew their meaning, the passion excited would
make legal provocation, reducing the grade of
CRIME from murder to manslaugh er
1t merely asked his Honor to repeat in this case
the old and we'll settled law that subject. As to
the propositions offered by the defence thev were
many OF them, if not all, liable to the objection of
being abstract propositions of law and did not con
form to the practice here.


The Counsel read them. The first stproposition he
sald was an abstract proposition, and was liable to
the objection that his Honor would have to conide
to the jury the functions of the Judge.
The effect of laying down this proposition to tho
jury, without anything more, your Honor, who is
placed there for the purpose of insructing us at the
oar and the jury as to the law, and to whom the
community look for declaration of law, leaves If
to the jury to find whether there is any proof of
ailevaton, excuse or justification arising out of the
defence.


Does the alleviation mean to say in general
terms with regard to the feelings with which
men are disposed to look at the fact of killing un-
aer these circumstances that they may find some
thing of alienation eycusa or iustsfcotnn of a.
act? - Wv


1t is not as to the alienation which micht he
drawn under other and different circumstances.
there, that they find in the circumstances of the
case made by the prosecution. There is some al
levlatlon, Is it meant to say if the Jury find that
the presumption of malice is rebutted? | presume
not.


Your Honor is to say to the jury what facts
and circumstances it is competent for them if
they believe them, to consider as an alienation
excuse or justification in this case for it must be
alienation, excuse justification in the eve of the
law.


1t mus be what your Honor declares legal aller-
Vatlon, excuse in justification, and it would be- I
think taking the extraordinary not the usnaI
course, to throw the whole case before the ury
without giving instructions.


What is meant by this equvoca language is that
the jury are presumed to be acquainted with the
law further than what other men know of it. With
out the aid of your Honor it is not to be presumed
what is the law which will amount or extend to al
deviation, excuse or Justification


object to the first proposition on this ground:
Will say nothing about the abstract proposition of


law, but will add, from the fact of killing whenev
er the law preSumes malice, it may be rebutted bv
certain facts and circumstances, or circumstances
and facts of certain Sort which the law regards
as alienation, excuse or justification.
Mr.. Carlisle could not but compliment the
singular adroitness displayed in drawing up
their propositions by the defence; for the
second proposition was nothing more or less than
an invitation to the jury to consider that the theory
OF Mr.. Graham in the opening of this case was a
rational theory, and if they think it is rational
then the existence OF malice is not presumable-
This was to place the jury in the awkward position
that they must either say that Mr.. Graham's the
ory Is not rational one, or they must find that
there was no malice in this case. Nobody could
consent to such proposition unless he wished to
abolish or nullify the office of Judge.
The third proposition but a variation in
terms OF the same thing embodied in the two pre-
cedng ones; but the fault takes entirely different
ground. Having guarded the prisoner from con-
vction OF murder by the first three propositions
the defence now proceed to guard him against
conviction of manslaughter and thev take step
backward in substance. They admit that Sckles


intended to kill Key, and say that it was not man
slaughter The prosecution agree tothat: if he in
tended to kill him it was not mansaughter, but it
was murder. They do not say that it was murder
but only that it was not manslaughter In one
sense this was very similar to of the proposi-
tons OF the prosecution, but it was not true as an
abstract proposition. 1t did not follow that be-
cause Sickles intended to kill Kew he could not be
convicted of mansIaughter May not a man intend
to kill another and neither be justifable guilty
of murder?


suppose the DfSt assault made by the deceased:
suppose under the circumstances of sudden atfray
the party being hard pressed, does intend kill his
assalant and draws deadly weapon and kills him,
but the case falls short of necessary killing for
selfdefence, could not the be manslaug hter?
Yet this proposition Abstract and unqualified
assertion that if the prisoner intended to kill the
deceased the existence of such an intention without
lnqulring into any of the circumstances, secures
him against conviction for manslaughter
The fifth proposition was asking the court vol
unfairly to surrender into the hands of the jury
its functions as judge of the law, and to allow
them to determine under the circumstances of the
case, whether upon any theory the act might not
be jusifable irrespective of the law If the jury
should believe that on Mr.. Grahams theory the
deceased deserved his fate, it would be their duty
| to acquit the prisoner. He would not take up
| the valuable time of the court by arguing such a
| proposition that.


The sixth proposition contained the doctrine
| of divine justice boldly put forth, and asked the
court to instruct the jury that it was lawful and
! Justlhable for a man to kill another if that
other has at any time had criminal intercourse
with his wife. 1t unnecessary to spend any


time in arguing that either.


The objection to the seventh proposition was
Its llablilty to mlslnterpretation. Mr. G. said he
| did not remember whose language it was that
was quoted, although he had seen it before
| Mr.. Brady.-The language was Mr.. Bradley's
in Days case, and the Judge granted the instruc-
| tions.


Mr.. Carlisle-The Judge understood what was
meant, and granted it with that understanding; but
glad to lind that the language was not his own


1t spoke of ''diseased mind, which bv slight
| change would be described as ''mind diseased -
and lead his brother Graham, who had the great
dramatist at his tongues end to paint the case in
| glowing colors-


"Canst thou not minister to mind diseased
Pluck from the memory rooted sorrow
Raze out the written troubles of the BRAIN &c.
The instruction asked, when taken in connection
with the argument of the defence, was tantamount
to request that the court would instruct the iury
| that Staying in anger, and under the influence oil
passion, amounted in law to Staying under the in
huence of insanity. That most dangerous
| doctrine, and involved confusion of ideas, and a


confounding of right and wrong, which it was the
| duty of the court to guard against. A mans mind
| was always influenced when he was in passion,


or when he was in great grief but the fact that the
| prisoner in this case "mentally incapable of


governing himself,' in the language of the eighth


instruction, (Which in fact the same as the sew


enth, differently expressed,) justification of


satisfaction of the jury. But the court was asked


to instruct the jury that if the prisoner had worked


himself up to such state of mind that he was un-


conscious that he committing a crime, or if he
had taken legal advice and had been assured that


he had right to kill the deceased then such kill


ing would be justiable. He hoped no such instruc-


tion as that would be granted.


The ninth instruction prayed for by the defence


referred to the state of the prisoners mind at the


time the homicide was committed With the most


that he should find fault. 1t embraces re-


statement to the jury that they to find out


what was the state of Sickes' mind, and decide


upon that question involving the guilt or nno-


cence of the prisoner. Under some codes the life