not introduced it at all. This count states, as I have said, that the death was produced in some way or manner, and by some means, to the jurors unknown.

Now, we shall submit that there is no precedent whatever for any such count; and if there is no precedent for it, the precedents are all against it. There is no authority for it which we have been able to find anywhere; and the authorities are directly against it.

I will cite, may it please your Honors, in the first place, from Hale's Pleas of the Crown, p. 185: "An indictment of murder or manslaughter hath these certainties or requisites to be added to it, more than other indictments. For it must not be only felonicé, and ascertain the time of the act done, but must also declare how and with what it was done. Yet, if the party were killed with another weapon, it maintains the indictment; but if it were with another kind of death, as poisoning or strangling, it doth not maintain the indictment upon evidence. The same doctrine is laid down in Hawkins' Pleas of the Crown, Book 2d, 84, 23. The doctrine is laid down in these words: "If the killing were with a weapon, the count must show with what weapon in particular; and yet, if upon the evidence it shall appear that the killing was not by such weapon, but by some other, the variance is immaterial, and the appellee ought to be convicted, as shall be shown more at large, under the Chapter of Evidence. And if the killing were not by a weapon, but by some other means, as by poisoning, drowning, suffocating, burning, or the like, the count must set forth the circumstances of the fact as specially as the nature of it will admit." East's Pleas of the Crown, c. 5, sec. 107: It is essentially necessary to set forth, particularly, the manner of the death, and the means by which it was effected; and an omission in this respect is not aided by a general conclusion from the evidence that he was murdered," ctc.

The count, may it please your Honors, now under consideration, is clearly distinguishable from the count made use of in the case of Colt. There is one of the counts

which charged that the crime was committed, in the first place, by striking the deceased with a hatchet; and another count charged it to have been committed by striking and cutting him with a certain instrument to the jurors unknown. This case comes nearer to disproving my position than any before the Court. But the means of death are stated; and the means are, to-wit, striking with the instrument which is alleged to be unknown to the jury; and the instrument is immaterial, if it be a striking instrument. He might have struck him with a ramrod, and it would make no difference.

The distinction between our case and that is, that the means of death are clearly stated, but the instrument is stated to be unknown. And we apprehend, may it please your Honors, that this mode, which the government have adopted in the fourth count, of alleging an indictment, would give rise to great confusion. We apprehend that it might contravene many established rules. Why, under a count of this kind, may it please your Honors, there may be an indefinite number of issues tried. Killing in every possible way in which human life may be taken, may be tried under an issue of this kind.

We submit, then, so far as one of these counts is concerned, that it is imperfect and insufficient, for the reasons that I have stated to the Court. In regard to the three others, the first two allege a death by striking; the third, a death produced by striking with hands and feet, and beating against the floor. Now then, gentlemen, the question presented to you is this: Has the government proved, beyond reasonable doubt, that Professor Webster destroyed George Parkman by striking him with a weapon? weapon? That is the point. The government must prove the killing by the means stated. That is the first proposition. And if the killing is proved by the government to be in any other mode, then they fail upon their own proof. And if the jury, upon the evidence, are left in doubt, whether the killing was produced by the means stated, or by some other means, then they are bound to acquit, under their oaths; because it is the right of the defendant-it is his right and privilege, and it is every man's right and privilege-to

have the government held strictly and distinctly to prove what they allege, in all its material particulars. Here they allege, in these two counts, a striking by a weapon. If they fail in this, there is an end of the case. If you are left in doubt, there is an end of this case. If you believe that he killed him in this way, but you are left in doubt, then you are bound to acquit him.

This is no hardship upon the government. The government may allege as many counts as they choose. They may bring forward charges of death committed by burning, strangling, poisoning, or in any other way. They never need suffer from the privilege which they have to give in stating the means. But then the law holds them to prove some one of the means alleged; and if they fail in that, they fail in their case.

To recapitulate that point. To convict on these first two counts, you must be satisfied, beyond reasonable doubt, that the death was produced by the means of striking: under the third count, that it was produced by means of striking with the hands and fists, and beating against the floor. And we shall submit to you that, with regard to that point, there is not a tittle of proof. I do not suppose that the government will contend that the death was produced in that way. And I apprehend that we might pass from that, and carry you more particularly to the first two counts, of death by striking, because on those the government have produced some apparent proof.

I say that these counts are to be proved here, and proved beyond reasonable doubt. And this brings me to the third statement which I intended to make-what it is that the government must do, to entitle themselves to a conviction, supposing the defendant introduces no proof whatever. What are the government to do, under any circumstances, to produce a conviction? They are to prove that Professor Webster destroyed Dr. Parkman, according to the allegations read over to you, and that he destroyed him by means of striking with a deadly weapon; and if they fail, beyond reasonable doubt, there is an end to the government's case. I say, be

yond reasonable doubt; and, as I am upon that point, I should like to dwell upon it for a moment.

I am perfectly aware, gentlemen, that there is an idea abroad, that this matter of reasonable doubt is something that the law accords to the prisoner as a gratuity; something that he is not entitled to; something by which guilty men sometimes escape punishment. But there never was a greater mistake in the world. This matter, that the government are to prove a man guilty beyond all reasonable doubt, is no privilege to the individual, for which he does not have to give full compensation. It is not accorded to him as a gratuity. And the examination of our criminal system shows that I am right here.

Under different systems of law, different criminal codes are adopted. I have no doubt but that ours is as perfect as any. Look at it, and see how imperfect it would be, if it were not for the checks put upon it. Every man must be proved to be guilty.

What is our system? We take a man from his family. We arrest him upon the charge of a heavy, heinous offense. We lock him up in a jail. And while his mind is paralyzed by his position, he is told to procure a defense-to proceed and prepare for his defense. What next? Why, ex parte proceedings go on. The matter is tried and adjudicated before a Coroner's Jury, where he is not present. It is afterwards tried before a Grand Jury, where he is not represented. An indictment is found; and then, with all this accumulation of public opinion necessarily formed upon these proceedings, he is brought into court, and put upon his trial.

How, then, is he placed? I am now taking the general position of a party; I am not referring to particular instances. How, then, is he placed, and what is his position? Why, he is placed at the bar; his mouth is shut. If he opens it at all, what he says is to go for nothing. And then witnesses are let loose upon him by the government. And who are they? In many instances, they are malicious, swearing on account

of some old grudge. In many cases, they are interested: sometimes for rewards and property; interested sometimes, in swearing of crimes, from themselves; sometimes interested for still worse motives. Now, in this situation, thus placed, and thus presented before a jury, what chance would many and many an innocent man have of an acquittal? It would be very small indeed, were it not for checks and counterbalances which we have provided in our system for him; and one of them is this same matter of reasonable doubt. The law says you may take a man in this way; you may lock him up; you may try him over and over again; you may put him upon trial; you may close his mouth; you may produce your witnesses against him: but here you shall stop. And if, with all this, you cannot prove him guilty beyond reasonable doubt, he is to be acquitted. This is all the protection that an innocent man has.

You may, any one of you, be charged with an offense done when you are alone. You cannot prove that you did not do it. Persons will be mistaken about identity. But you can prove your previous character, and that there is a reasonable doubt. You are, we say to the government, to prove your murder by your means, and beyond all reasonable doubt. And this is as much my privilege, as you have the privilege of trying me, and at your particular leisure. And, therefore, it is most certain and true, that this matter of reasonable doubt, so far from being a gratuity to a defendant, is his right. It is what the law has provided for him as his shield; and though it may be that guilty men may occasionally take shelter under that shield, what does the motto say, but "that a hundred guilty would better escape, than that an innocent man be punished"? The government are to prove it beyond reasonable doubt. And if they fail, there is an end to their case.

It may be asked, What is a reasonable doubt? The answer is well stated in the first volume of Starkie: "A juror ought not to condemn, unless the evidence exclude from his mind all reasonable doubt as to the guilt of the accused. And as