hearts, the solemn engagement his majesty is under, "to cause laws and justice in mercy to be executed in all his judgments." Now, gentlemen, if the mere forfeiture of goods calls for this merciful administration of justice if this respectable judge thus speaks of tempering the rigor of the law, think of that terrible punishment that must follow upon your verdict of conviction. Temper your verdict also by that same mercy. You are not hunting after forfeitures of goods; but you are called upon to utter a fearful sentence, far more than forfeiture of goods, far worse to an honorable mind than death itself. You are not kings, nor bound by the oaths of kings: but you are bound by the precepts of the God you worship, as much as kings can be, to administer justice in mercy. That oath of the king, is only to fix in his mind the admonition of the King of kings, and which he gives alike to kings and subjects, who are equal in his eyes. It speaks only that command of God to man which is embodied in his oath, as a divine instruction to him and his people. What is the nature then of this "due caution?" Where the lawful act is deliberately begun and carried on, there may be time for caution; and if it be possible to justify, before a jury of this country, a judgment like that against Sir John Chichester, it could be only upon this ground, that the killing was there in a dangerous kind of sport, which the parties had deliberately entered into; and then, perhaps, greater caution might be exacted. But here the circumstances were such that the mind of the defendant could not be composed, nor could he be self-possessed: the rule as to him must therefore be taken with great latitude. Let us illustrate the distinction by supposing a case. If a number of persons go on a boating party, it is a lawful act in every person: if the vessel should be overset, each would endeavor to save himself, which is also lawful. All might be saved, if all were cautions and deliberate: they cling to the keel, but one in his flurry shoves another off, who is drowned-would you sentence him to the State prison for three years, and give him as a reason that he had not used due caution in his exertions for himself? You could not do so; every merciful consideration would warn your consciences, that in such sudden emergencies no man is competent to the exercise of due caution," nor master of the ordinary powers of his mind. The conclusion from this illustration is, that where the act takes place under circumstances which naturally destroy all self-command, the rule touching observance of due caution will receive a very large and liberal construction. But here I may passingly observe, that a caution greater than perhaps would be expected on such occasions, was manifested by this unfortunate prisoner, when he took the blade in his hand, and struck with the handle of the dagger in the manner described by Mr. Cambreleng. I have now, gentlemen, stated to you the general principles of the law of homicide on which we rely; and before I examine the facts entering into the merits of this case, let me advert to a piece of testimony which, under that law of homicide, I think should not have been intro duced at all. Major Smith was examined to prove that the prisoner procured from him the cane unfortunately containing the dagger which gave the wound, but the evening before the affray. If that fact could afford any inference, it could only be to affix a charge on my client, from which the grand jury have absolved him, and which you are not to try-from which he is not called upon to defend himself, and which he may well be unprepared with evidence to explain. But, gentlemen, that inference is most strained and uncharitable, and such as should never be applied to human actions. Two gentlemen, friends from childhood, met under circumstances of conviviality well calculated to exalt their mutual attachment, and ex pected to separate again in a day or two perhaps for ever. The stick happened to catch Mr. Goodwin's eyes, as Major Smith held it on a chair, in a gay and unimportant conversation. Both had sticks not unlike each other, and my client proposed to exchange them as mutual keepsakes. Major Smith says it was done after a few words; that it was understood between them, the exchange was only made as a memento; and he did not know, that when Mr. Goodwin proposed the exchange, he was aware there was a sword in the witness's cane. If this is to be urged as a proof of deliberate and premeditated malice, what man can guard the most inconsiderate and thoughtless actions of his life from the foulest and most terrible construction? It would be unworthy of a jury to bestow on it a moment's deliberation; and particularly as it has no relation to the issue they are sworn to try. In considering the facts really connected with that issue, the first question that presents itself is, was the act of Mr. Goodwin in his confiict with Mr. Stoughton lawful? or, to continue the use of the expression I have already adopted, can it come within Lord Coke's definition as "no unlawful act?" To decide this, consider it without adverting to that fatality which ought to have no influence on your minds in judging of the act itself, and which could only mislead you in determining on its legality or illegality in the abstract. Suppose the prisoner was defending himself on an indictment for a mere assault and battery, or in a civil action by the plea of son assault demesne; that is, that he was first assaulted by his adversary. This is the fair way of judging, as there is no law peculiarly applicable to manslaughter in this respect. The legality of Mr. Goodwin's act is to be judged of simply upon this ground; whether under the circumstances of the case, he could be found guilty of having committed an assault and battery. The opposite counsel endeavored to elude this test by citing authorities which are totally inapplicable to manslaughter. They refer to East's Cr. Law, vol. 1, p. 239, where, speaking of homicide from transport of passion or heat of blood, the writer says: "In no case, however, will the plea of provocation avail the party, if it were sought for and induced by his own act, in order to afford him a pretence for wreaking his malice. As where A and B having fallen out, A says he will not strike, but will give B a pot of ale to touch him; on which B strikes and A kills him: this is murder." This authority is applicable exclusively to cases of murder and has no reference to the law of manslaughter. It is grounded upon the crafty words used to evade the law, "I will give you a pot of ale if you will strike me;" that show the previous and premeditated malice which is an ingredient of murder. But it has no application to a case of manslaughter, where malice is not at all in the question, and when the act stands simple and alone. So in 1 Hale, 457: "A and B are at some distance: A bids B take a pin out of the sleeve of a A, intending thereby to take an occasion to strike or wound B, which B doth accordingly, and then A strikes B whereof he dies: this was ruled murder. First, because it was no provocation when he did it by the consent of A. Second, because it appeared to be a malicious and deliberate artifice, thereby to take occasion to kill B." I therefore, gentlemen, set aside these and any other authorities concerning previous provocation, as relating to murder only and not to manslaughter; and then I contend on the general principles of the law of assault and battery, that the provocation alleged to have been previously given by Mr. Goodwin to Mr. Stoughton, cannot make his subsequent conflict unlawful. There is no doubt but that the deceased struck the first blow; for though Mr. Clark did not see it, Weed and Cambreleng did; and the district attorney, with that candor which has marked his proceedings throughout this cause, admitted the fact. It is enough for me then to say, without coming to the express definition of a "lawful act," under the authority of Lord Coke, that the prisoner's conduct was not unlawful. Our adversaries, however, dispute this position, and contend that in the eye of the law, Mr. Goodwin committed the first assault by the pointing of his cane towards Mr. Stoughton; and for this they cite Hawk. b. 1, c. 62, §1. "It seems that an assault is an attempt or offer with force and violence, to do a corporal hurt to another; as by sticking at him with or without a weapon, or presenting a gun at him, at such a distance to which the gun will carry; or pointing a pitchfork at him, standing within the reach of it, or by holding up one's fist at him, or by other such like act done in an angry threatening manner." But, gentlemen, the doctrine there laid down is totally inapplicable to this case. The acts there specified were held to be assaults, because they were attacks upon the safety of another; they were intended for the purpose of committing personal violence, and begun and proceeding towards personal injury. | But here, the pointing of the cane was no more an assault than the pointing of the finger. It was an indication of the person, and nothing more. Let me remind you also, gentlemen, that in such a solemn proceeding as this, the defendant is entitled to the benefit of the legal definition of the offence charged upon him in all its parts and strictness. If the provocation appears to you, as I fear it must, to have been wrong, fully as I admit it, and deeply as it is regretted by my client more than by any other person, who with a contrite heart says through me, would to God it never had been given, nor the terrible consequences followed from it; yet neither that contrite admission of the party, nor the lamentable consequences of the act, are to deprive him of the benefit of the law in every shape. And the law says, that the pointing, not being with a view to a battery of the person, nor to any personal violence, was no assault; for that the intent of violence is a necessary ingredient to constitute an assault. But that transaction, whatever may have been its character, was ended. Mr. Goodwin had gone on his way, as also had Mr. Stoughton; and with respect to the consequence of that act, all was past and over. The returning and following of Mr. Goodwin by Stoughton, was a new and distinct act, which should entirely be separated from the former in your consideration. If Mr. Goodwin had been the person slain, and Mr. Stoughton the person upon trial, he never could have availed himself of the defence, that his striking Mr. Goodwin was lawful; and if he could not so avail himself, though the calamitous accident has changed the situation of the parties, the act of Stoughton must continue unlawful; it therefore follows of necessity, that the resistance to it, and the conflict ensuing upon it, was "not unlawful." And, in truth, that case, where one said to the other, as an excuse, "take this pin out of my sleeve," would apply to Mr. Stoughton with all its severity, if he were upon trial, and not to Mr. Goodwin. I should be sorry to see such severity of construction administered at all; but, if it were, it could be only in respect to Mr. Stoughton. It has been intimated that Mr. Goodwin's continuing the conflict after the deceased began to retreat, was unlawful, and gave that character to the subsequent events. I cannot, however, conceive that your verdict will ever sanction this doctrine. In East's Crown Law, v. 1, p. 239, the author, after observing that the punishment inflicted on any sort of provocation must not greatly exceed the offence received, adds, "This has been urged with caution, because in cases where the mercy of the law interposes in pity to human frailty, it will not try the culprit by the rigid rule of justice, and examine with the most scrupulous nicety, whether he cut off the exact pound of flesh." What was the duration of this affray, which, it has been intimated, Mr. Goodwin continued too long? Perhaps not half a minute at the utmost. Two or three blows passed on each side in an | valor and honor that he could acquire the disuninterrupted scuffle. Mr. Stoughton retreated, position of an assassin? Did he learn to be sc not because he wished to give up the contest, in the battle of New Orleans, in that conflict, but because he found his adversary somewhat so glorious to our warriors, and fatal to their stronger than himself, and, perhaps, in order foes? Did he learn it fighting any where in to regain a vantage ground. Is such retreating, the defence of his country, as our soldiers alaccompanied with preserving assaults and ways did openly and face to face with their blows, sufficient to prevent a man from using enemies? Was it in any of those exertions of violence to repel the continued violence of an body and of spirit, by which a foreign foe was aggressor, and for the purpose of self-defence? gallantly combated, and nobly driven from our Where was the disposition of Mr. Stoughton to shores? What could he have learned in that discontinue the conflict? When did he cease to school inconsistent with the character of a genattack the prisoner, or renounce the original tleman, and the honor of a soldier? He cerpurpose with which he commenced the assault, tainly would have learned there to meet his while he had the capacity to carry it into enemy in the most deadly combat, and face to effect? Mr. Clark says, though perhaps some- face, whenever the necessities of his country what mistakingly, that after the deceased rose and the duties of his calling should require; np, he actually struck the prisoner. Mr. Phelps but if he is a military man, there is a nobleness and Mr. Cambreleng say, he appeared deter- in his occupation, which, in itself, should check mined to renew the attack; and Mr. Weir the surmise, and silence the whisper, that he says, he made an effort to do so. This evi- could be an assassin. It may, indeed, have dence is, I trust, sufficient to prevent the in- given him too exalted notions of what are ference that Mr. Stoughton had given up the called the laws of honor, and may have led to conflict, or that the prisoner was bound to sup- his using those words of provocation, and those pose he intended doing so. slaps of insult, which both he and I deplore; but most assuredly, it never taught him to use a sword or dagger in any secret, base, or hidden manner, to work the death of an unarmed adversary. Mr. Goodwin is further charged with striking Mr. Stoughton when he was down. Permit me to say, that fact has no relation to what you are to try, unless so far as it affords an inference favorable to my client. Favorable indeed it is, because, as I shall hereafter show, it proves how both his hands were employed at the time he is said to have stabbed his adversary; and also, because it shows an unconsciousness of what had taken place. But remember, gentlemen of the jury, you have no evidence before you, and, I trust in God, the wide range of this earth could not produce the evidence, that Mr. Goodwin was that abandoned wretch who could have continued beating a man in the face, to whom he had already given a mortal wound. Would to God it had not-that no part of this tragedy had taken place; but it must at least serve to show that he never could be conscious of having stabbed his antagonist before that moment; and then, or after that, he certainly could not do it, since whilst his hands were both employed about his adversary's face, he could not then plant a dagger in his heart. This brings me to the notice of a question asked of a witness, as if to make it testimony in the cause perhaps without intention. But it was asked, "Is not Mr. Goodwin a military man?" For what was that asked? Was it to exhibit him to you, gentlemen of the jury, as a skilful asssassin ? Is that an attribute belonging to your army? Was it in that quality your soldiers marched against your enemies, and fought the glorious battles of their country? Is that sarcasm applicable to your forces by sea or land? Does it come properly from one who owes, perhaps his existence, certainly his safety, and his present tranquil enjoyments, to the fatigues, the privations, the sufferings, the virtues and heroism of that army? If my client was a military man. was it in that school of Let us now, gentlemen, examine into the circumstances of those blows. I have said they were only intended to affront or degrade, and not to inflict any injury by personal violence. I need not give a stronger proof than the bare fact, that Mr. Stoughton was lying on the ground when he received them, and not in the attitude of defence, and yet they did not leave a mark or bruise. If the prisoner struck with force, when no blow he struck was returned or parried, the marks would have testified to the atrocity of the act. Whatever blows then were given, when Mr. Stoughton was on the ground, as they left no trace, so they were intended to leave none. But it is alleged, these blows were given with a cane, from which a dastardly intention of personal injury is inferred. On this subject there is a direct contradiction of the witnesses. Those who testify to that fact, and those who disprove it, however honest they may be, cannot both be correct, and you must, therefore, decide between them. In doing so, I think I can give you one unerring rule; wherever there is a contrariety of evidence, that statement cannot be believed, which leads to an impossible or an absurd conclusion. And I hope to satisfy you, that believing Mr. Goodwin struck Mr. Stoughton when on the ground, about the head, with the handle of the dagger, would necessarily lead to the absurd conclusion that Mr. Stoughton was not stabbed at all, and did not die of any wound; while believing that the blows were given only with the hand, leads to an easy and natural explanation of his calamitous death. So far, however, as relates to the acquittal of my client on this indictment, it seems to me, that in whatever shape this fact is put before you, it equally leads to the con- | hand, and of the arm itself, to give any thing clusion that Mr. Stoughton's death was acci- approaching to such wound; and by the acdental, and not effected by the voluntary act of knowledgment of all the witnesses that no one Mr. Goodwin. If these blows were given by saw any such movement made. Besides, if the the hand only, either open or clenched, they deceased had fallen, because his limbs and show that the dagger was then out of his hands, strength failed him in consequence of the stab, and give great probability, if not certainty, to the fact would have been immediately obvious the conclusion which I am sure you are in- to the spectators. If the wound had produced clined to draw, that the death was occasioned its effect upon his system, and his muscular by that dagger, when it was out of the prison- strength had been so entirely prostrated, he er's hands. But, suppose those blows to have would not have risen and stood as if about to been given with the handle of the dagger; the renew the combat till another syncope or faintwitnesses who attempt to testify to that fact, ing seized him. When the true cause that the agree that when they were given in the face the consequences of his wound on his frame became prisoner held the dagger (as he had done during obvious and caused the failure of his strength, the conflict, when standing up) by the blade, he fainted, and never opened his eyes but for a and struck with the handle. When then was moment with a glare of fury, and then closed the stab of the depth and direction described them for ever. Returning then to my arguto you, given with the point? That he had the ment on the conclusions to be drawn from the blade in his hand, both before and after the fall, contradictory statements of the witnesses, I reall the witnesses agree who testify to that fact, peat my assertion; beyond a doubt the wound except Vervalen, who probably saw nothing; was not given when both parties were engaged, for he deposed to things that could not possibly face to face, in the conflict, before Mr. Stoughhave happened, and in contradiction to every ton's fall: and they continued in that attitude other witness. Indeed, I observed a smile on until he fell. When that event took place, Mr. every countenance, and yours amongst the rest, Goodwin lost nearly his balance, and almost fell when he related his extraordinary vision. But, with him. If the witnesses are to be believed, putting him aside, and reasoning on the testi- who assert that while Mr. Stoughton lay on the mony of the witnesses who say my client struck ground, Mr. Goodwin was using the dagger, the with the handle of the dagger when Stoughton same evidence states that he held it in the same was on the ground, let me ask when was that position, and used it in the same way over the wound given which penetrated through the head of the deceased. Most assuredly also it ninth and tenth rib, forward and upward, was not then the wound was given. The dethrough the heart to the breast-bone? If it ceased lay upon his back, rather than inclining were possible to conceive that fact to be estab- to the left side. Where was the space (even if lished, it would put the acquittal of my client the prisoner's hands had not been otherwise past all doubt, for it would place it upon the employed) to permit the placing of the dagger very extraordinary, but very solid ground of under the deceased, the driving of it in that certainty, that Mr. Stoughton was not stabbed part of his body that most particularly rested with that dagger. on the ground, and withdrawing it again? Now, gentlemen, see how the evidence | The motion of the arm requisite for such an stands. The opposite counsel must either re-operation, must have been extremely conspicunounce that part of their own testimony, on ous, and yet nobody saw it. Mr. Cambreleng which they seem mainly to rely, or abandon the saw his arm, and yet saw no thrust. If then I conviction of my client; for they are met by am correct that the wound could not have been an insuperable difficulty arising from that very given while the parties were standing engaged testimony. The prisoner held the dagger by in conflict-nor yet while the deceased was the blade, while standing face to face engaged lying on the ground, you are inevitably brought in the conflict, and using it upon the head of to the time-the only time when the wound the deceased. Beyond a doubt, it was not then could have been received: namely, as Mr. the wound was given. I anticipate, indeed, Stoughton was falling, or fell; and then it could that you will be urged to believe the deceased not have been inflicted by the voluntary act of fell because he had been previously stabbed to Mr. Goodwin. the heart. This supposition, however, is not only entirely gratuitous, sufficient causes being otherwise assigned to the fall, but it is repelled by the constant employment of the prisoner's hands in fighting about the head of the deceased, by the impossibility of his inflicting the wound described, situated as the parties are proved to have been in respect to one another, by the position in which the prisoner held the dagger by about the middle of the blade; by the great notoriety and conspicuousness of movement which would have been necessary for changing the position of the dagger in the The prisoner, though he did not entirely lose his balance, yet still was falling along with Mr. Stoughton. Now let any man show me, how the prisoner, holding the dagger by about the middle of the blade, always in front of the deceased, who was falling off from him backwards, and he himself staggering or falling forwards, could have inflicted a wound beginning near the back, splintering off part of one of the lower ribs, and penetrating ten inches forward and upwards, even to the breast bone, which it injured; and that without any of the spectators having seen the necessary change of the posi tion of the dagger in the prisoner's hand, or of his arm, to inflict the wound! Let any man, even standing firmly, place himself in that position, opposite another, and try with a weapon of that length, and held in that manner, to inflict such a wound, and he will immediately perceive it is impossible. But when it is further considered that both were falling, and of course, that the necessary physical force and firmness of position were wanting, it is, to say the least, incredible that the prisoner should not only have inflicted such a wound at that moment; but also have withdrawn the instrument again (the deceased being on his back on the ground), regrasped it by the blade, and recommenced his blows about the head of the deceased, thus twice changing the position of the dagger in his hand, and the position and direction of his right arm; and all this unperceived by any of the surrounding witnesses. I have said that under those circumstances, the necessary force and firmness of position for the voluntary inflicting of such a wound, were wanting. Evidence has been produced that muscular strength would be adequate to the giving of that wound-but it is idle to talk about the sufficiency of muscular strength in the abstract. It can only be applicable to this or any particular case, by taking into consideration the position of the parties and the situation of the part, the strength of which is to be exerted. In this case (if the wound be supposed to have been given by the dagger in the prisoner's hand), no momentum could have been given to the weapon, by imparting to it a velocity, before the point was made to touch the body. The shortness of the human arm, the length of the blade, and the position in which the dagger must have been held and driven, to inflict, by a person standing in front of his adversary, a wound beginning near the back, between the ninth and tenth ribs, and going upwards and forwards through the heart to the breastbone, show that if it could have been given at all, the point must have been applied to the back of the deceased without any antecedently acquired momentum or velocity, and forced through a part of one of the ribs, and into the body to the length of ten inches, by mere muscular exer*ion, commencing from a state of rest. The very skilful physician who examined the wound and dissected the body, influenced by these considerations, testified, that under all the circumstances of the case, he thought the muscular strength of a man would be inadequate to the giving of such a wound, and that it must have been caused by the fall, which alone could impart the force and velocity necessary for overcoming the difficulties. Other physicians, having no respect to the circumstances of the case, said they thought the strength of a man would be adequate to drive the dagger in so far, and to illustrate their opinion, you must have observed them drawing back their arms, and then thrusting the dagger forward, with the utmost velocity and force. I was stopped in the cross-examina | tion of those witnesses, by which I wished to fix their minds on the situation of the parties, and the impossibility that the weapon could have been driven with that velocity and force; and, perhaps, I was rightly stopped; for I was told that it was your province to draw these conclusions. I ask you then to draw them now, and I entreat you to consider whether it can be supposed, or rather taken for granted, against evident presumption, against mercy, against the character and reputation of the prisoner, that he exerted a force, to which a very competent judge thinks, and I trust you will think, the muscular strength of any man would be under those circumstances, unequal. I therefore say, and insist, gentlemen of the jury, that whichever set of witnesses you give credit to, you must arrive to the conclusion that my client must be acquitted. If his hands alone were employed about the head of the deceased, when he was on the ground, the dagger was then out of the prisoner's hands, and the natural conclusion is, that the wound was received by falling on it, or with it, on the ground. If you can believe it was still in his hands, and held thus by the blade through all the progress of │the affair, Mr. Goodwin cannot be guilty of the crime charged in this indictment, for the death cannot have been occasioned by a stab with that dagger. Extraordinary and absurd as this certainly appears, yet it is a necessary conclusion, that the whole of the allegations about the mortal wound must be untrue, if this part of the testimony be taken as the truth. But in this very singular case, more abundant in contradictions amongst honest men than I ever knew before, where witnesses speaking of the same thing differ so entirely one from the other, on what are you to rest? I might rely for my client, on the uncertainty of proof on behalf of the prosecution. I might tell you that where you were in doubt, you were bound to acquit. There is, however, a surer and a safer guide for you, than the tongue of any witness. The senses of men may deceive them, their memories betray them, their feelings, passions, and apprehensions, may mislead them. But if there be any unerring fact, not to be altered by misapprehension or mistake, adopt that for your guide, and it will be a clue to lead you through the labyrinth. That fact exists, and though one rib may be mistaken for another, the wound itself, its situation, depth, direction, and nature, are certain. On them I have endeavored to fix your attention, and if you keep them steadily in view, they will give you as much certainty as the nature of this case can possibly admit. That the cane was used in the conflict, there can be no doubt; the weight of the evidence, however, is, that the blow after which Mr. Stoughton fell was given with the fist. Mr. Clark clearly says so; Mr. McWilliams speaks as decidedly to the same fact, and says that when he was running up, before the knocking down, the battle was with their hands. Mr. Baker also says the same thing. There is therefore |