Year: 1859

to which he can look forward except death, an
then say, If you can, that man shall not strike
blow In vindication of his honor. Mr. Carlisle ha
alluded to the code of the duello; but Mr. B. had We
to learn thata man was bound to stand up and ALLOW
the man who had so grievously wronged him t
terminate his existence. As he understood tha
code, the aduerer was bound to receive the fire o
his adversary and not return it, and thus he woult
stand chance to meet the fate'that befell Key
With regard to the question of doubt as to in
sanity, he cOntended that the instruction for whcl
the defence prayed was in conformity to the pre-
Vlous ruling OF this Court in the of Devln, bu
ne had not that case before him.


The Court stated that his decision in that case a
the June term last year, was that the question o
DOUBT belonged much to insanity as to any othel
portion OF the case. That decision would be ad
Vertee to, IN granting the instructions in the pres
ent case, and he thought that it would be found tina
there was authority for it.


Mr Brady was gratifed to find that the Cour
sustained their views in regard to this subject Ht
took occasion to cite Humes Criminal Law, seconC
edition, page 451, and Bishops Criminal Law
sections 639 and 294 In the closing portions of bi
remarks, he illustrated the condition of Mr. Sick
les mind on the Saturday and Sunday by reading
sketch furnished by T. F. Meagher, in which thu
eXhl6tion OF feeling on the part of Mr. Sickles il
TINS Court room, on Tuesday, the 18th of April wa
eloquently described Mr.. B. said that had Sickle
quietly submitted to this dishonor he might have
gone anywhere else the face of the earth bu
never could have returned to New York


o"S S"hSiusiOu vi his remarks, the Jury tOOE
a short recess


AT two o'clock


Mr.. Ould, the district Attorney, commenced hi
reply. He admired the candor, brilliancy, power
ana pathos OF the argument of his learned brother
on Saturday last The prosecution took no such
ground here as had beeen attributed to it, of de
lending adultery. The case under consideration
now was not as to adultery, but murder; ant
sense detracts from the Condemnation that shoulc
be bestowed on the higher crime of murder Tn
question now was not to the family or socia
relations, but it was question far down underlyin!
al tnoSe relations 1T was the question of the sa
credness OF human life. Human life is the CRANE
trunk which supports the blossoming glories o
tne family relation There never has been a cod,
OF laws human divine, where the sacredness O
human lie did not receive all the sanctions tha
could be placed around it, so as best to secure il
preservation. 1t is true that the offence of adul
terry desolates the hearth-stone; but the takino
away OF human life does the same thing
Whatever may be said against one does il
no degree detract from the enormity of the
other.


1t had been said that adultery was NAHUM in &c
put he had seen no book where it was go registered
Ii 1t was n'at"m an Sc, the right of Furnishing il
"ould belong to any person who might become
witness OF 1t, as much as to the injured husband
win regard to the case cited in st. Johns gospel
there was no proof in Scripture that the adultereI
had been put to death by the enraged husband
Ihe power of administering punishments upon the
auuleerer or adulteress, according to the Jewish
coue was confined to a judicial tribunal after in
dlclal determination Of their guilt He quoted from
deuteronomy and also from Job XXI IL in prooI
OF this. Adultery, styled an iniuuity, fto be pun-
ished by the Judges" While adulterers were al
lowed the protection of the cities of refupe mur
uerers were not; showing that the latter crime
was regarded as the most heinous of the two Mr.
v. made several other quotations from Scrip
ture IN elucidation of his argument The very same
chapter which said that the adulterer should bt
tO 1pat Wis al h.
ards and witches; and yet he had heard from the
other side severe denunciatons against WISE able
and incorruptible judge because when sittingon thu
BENCH IN England, he carried out laws both hu
man ana divine, and visited the penalty upon Ger
tan witches who were brought up before him fol-
Judgment. The defence had quoted the conduct o
simeon and Levi, in visiting with death the ravshel
OF their sister Dinah, and had evidently cited i
win appreciation But when the venerable patri
arch was about to die and appear before the fipa
Judge, he spoke in prophetic utterance. as if hi.
lips had been touched with coal from off the holy
altar, and said of this very act of violence "CurseG
De thelr anger, for it was fierce and their wrath
for it was cruel" This would be found in the 49tf
chapter of Genesis, verse T.


Mr.. Ould quoted from Blackstone, book fourth
page l4o, to show what punisbmen ent had been visit
ed upon aduterers in other countries. He did moi
thlnK the statements of the paper furnished by Pro
lessor Dlmltry was entirely accurate although thai
gentleman bore a deservedly high reputation He
knew of no code where the husband was allowed tc
pursue the adulterer and slay him. He had founG
no such principle asserted anywhere. But we were
not now under the of SolOn or Lycurgus or under
the Roman or Saxon code; we were under the com
mon law.


Much had been said about Mannings case anC
the correctness of that adjudication seemed to bt
called IN question by the learned gentlemen upor
the other side, but it has been considered as pooC
law oy the various authorities who have quoted it
IL Is said that it was decided in the time of Charles
the Second, and that it is the first recorded case
where the punishment of the aduterer, whether
caugnt IN the act or not caught in the act is to be
FOUND IN any books, and that new law was made
then and there. Now, this, said Mr. o. | mos
gravely dispute; think can show to the salts
faction OF your Honor that so far from being tn
institution OF new law to govern the case of a.
adulterer, it alienation of the law so far
1t had been universally recognized and adopted b,
the sages of the common law and preceded thos
days. lay it down here as a rule of the common
law Whlch no one can gainsay, that the rule of com
mon law before Mannlng's case, as far back as re
corded traces exist, was that under no circumstan
ces was murder to be alleviated to manslaughte1
except there was an actual assault made upon z
man person or property, and especially so wher
the slayer himself resorted to the use of deadly
weapon. The most that it was ever extended fine
recited in Blackstone, that in some cases where nr
deadly weapon is used, and where the proyocatio1
given to the slayer is other than an actuaI assault
upon ms person or his property, the offense nigh
De mlugated from murder to manslaughter; bu
there Is no solitary recorded, before Manning
time, at least, where the doctrine was extendef
further than the particular | have stated But ir
every case where the slayer resorted to deadly
weapon, nothing could extenuate the oflense from
murder to manslaughter except there had been an
actual assault upon the person or property of the
party.


Now, in the time of Charles the Second, this
other case came up, as to the provOcation of adu
terry. The reason why this question had never
before been reported in the books-the reason why
no such question occurred, that up to the time
OF Henry the Eighth there was no distinction be
tween murder and manslaughter both of them be-
ing considered as clergyable offences. From the
time OF Henry the Eighth up to the time Of
Charles the Second, it appears that no case came
for adjudication before the courts in which thi.
princlPle was involved, that being established
fundamental principle of the common law-that
being case where there was great and grievous
provocatlon, according to the law as laid down in
the law books but where there was no assault upor
the part OF the person who was slain. Now Twis
den had to decide that question for the first time
lu the history of English Jurisprudence.


What did the common law say to those Judges
who were solemny sitting there for the purpose Of
deciding these principles The common law said
that technically and strictly it was case of mur
der, although the party was caught in the act; fol
the common law said that nothing should amount
to provocation, so as to reduce the offence from
murder to manslaughter, except there was an as
saut, accompanied with some degree of violence
Now say that Twisden, in adopting this rule, al
W extent the principles OF the common
law which had been recognized from time imme
morlal 1t was in the same light that it was re
garded by Russell, East, and the other humane
writers on criminal jurisprudence in England i
vas considered an aeviation of the principle O
the common law.


The learned gentleman on the other side is mis-
taken, therefore, in supposing that this rule, witt
reference to the staying of the adulterer, had it
origin in corrupt age and before a corrupt Judge
Not only did that judge mercfully interpret tn
principles which he was sworn to interpret, an
which would govern the case but he carried hi
merciul principles further, because after pronounc
ing Judgment he ordered that the punishment
which was prescribed should be administere
gently.


Mr.. o. said it was not his purpose to defend tn
English judiciary; it did not fall within the lin
of his duty to defend the principles which ha
been recognized by that judiciary; but he wou
say that the history of the English people showet
that the Judiciary had been their great bulwark.-
That Judiciary-with solitary exception tina
starts up here and there in its iniauity-stood u
for centuries it like an Ararat of the delug
the last point that submerged beneath tn
waves of either tyranny corruption, and tn
very first that lifted itself into the light Of day.
But suppOsing that he was mistaken on thi
point, suppose, because it happened to be the frs
case that came up for judicial Interpretation, ths
the law was then first proclaimed that properly be
longed to it the material question was whethe
this rule, that was then and there adopted, hat
been confirmed by subsequent judicial interpreta
ton The prosecution had already challenged tn
gentlemen upon the other side to show sotar,
English case where it has been questioned. TIL
reports that have come down to us show that il
every case where decisions have been given on thi
point, the same doctrine has been subsequently ap
proved.


He referred here to Fishers case, in England il
lS45, and also to Kelly's and Pearson's cases. a
bearing upon this point. There were two Ameri
can cases that had likewise been cited from tn