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from all but facts, remembering you are in the Holy of Holies, the sanctuary of justice. You have a great and painful duty to perform, and for its performance you are responsible to the law, your country, and your God.
This is a most extraordinary trial. You and I have never known such an one before. It is extraordinary that such a man so formed to be loved, admired, and cherished, so mild and unassuming in his manners, so averse to combat and bloodshed, so intellectually great, should have found any human being malicious enough to take his life. It is most extraordinary that such a man as the prisoner, should have killed his former friend and family benefactor. It is extraordinary in the manner in which the defense has been conducted—the number and character of the counsel—the great multitude of witnesses—some being brought from the Halls of Congress and the Cabinet, to testify to the former good character of the prisoner, a fact, which if true, an honest mechanic, or his father's gardener, all unknown to fame as they are, would have proved more satisfactorily—for men are best known by their treatment of inferiors.
Doubts have been thrown upon everything; and you would almost believe from the skeptical manner in which the counsel have interrogated witnesses, that the lamented Butler was yet alive, and that this was some tragedy enacted for the benefit of the audience; and from the querulous and peevish tone of complaint indulged in, you would suppose that some of the counsel for the State had committed some great crime, and were on trial instead of the prisoner. All that wealth, talent, and influence could do to acquit the prisoner has been done, and it is a source of gratification that it is so; for if the facts now call “trumpet tongued” for conviction, and you respond like honest men to that call, you will be sustained by the reflection that every facility has been afforded the prisoner to prove his innocence.
In addition to what has been done by the friends of the accused, American law always benignant and merciful, as expounded on this trial by a most kind-hearted Judge, has
allowed the most ample and latitudinarian range of testimony in favor of the prisoner, including statements made by him before the commission of the act, tending to rebut the proof of malice; and the evidence of his brother, who is included in the same indictment, for being present, aiding, assisting, and abetting in the murder. Not a single fact favorable to the defense, which transpired from the day before the killing to some hours after, has been hidden. Every expression, every act, has been laid before you, just as he chose they should appear. The law presumes the prisoner innocent, and you are to place yourselves upon this presumption, and recede only when driven from it by the testimony.
In the early history of society every man was his own avenger. Nature had conferred on him strength to punish wrong and defend right. As the duties and relations of men became better understood, it was found necessary for each individual to surrender some natural rights to society, and receive in return adequate protection for life, liberty, and property. This is necessary, not only to avoid anarchy and bloodshed, but to secure the certainty of punishment for crime; whether the offender be high or low, rich or poor, this is peculiarly the genius of American law. It protects all, it casts its broad ægis over the President in his chair, and ihe humble laborer upon the streets, none so high as to escape merited punishment, none so low as to be beneath its protection. It protects the innocent by punishing the guilty. Yet we find some who still shed blood for blood, and why? Because justice is sometimes bought, and juries shamefully fail to discharge their high duties. It is by such failures that reproach is cast upon our laws; and if the glorious flag of our happy country shall ever cease to wave in triumph over the fairest land of earth, and be trailed in the dust of anarchy, the cause will be found in the non-execution of the laws. Greece and Rome fell, when the people became untrue to themselves, and failed to execute justice, and this country can, if she will, profit by their sad but instructive example. It is not the degree, but the swiftness and certainty
of retribution that causes evil doers to tremble. The law has taken the prisoner from his high position in society, and placed him at this bar for trial, surrounding him with all its safeguards; let us now inquire whether he is innocent or guilty; if innocent, acquit him; if guilty, “Let justice be done, though the heavens fall.” The prisoner is charged with the murder of W. H. G. Butler, in the city of Louisville, on the second day of November, 1853. That Butler was killed, there can be no doubt, and it is not denied that the killing was done by the prisoner, and the only question for your consideration is, was the killing malicious ?
If there exists in your minds a reasonable doubt of the malicious intent, you cannot find the prisoner guilty of murder as charged in the indictment. Such is the law. But such doubt must appear in the case as shown by the whole testimony. If from the evidence, acts, looks and appearances of the witnesses the doubt exists, the prisoner must be acquitted on that charge. What is a reasonable doubt! It is a doubt, under all the evidence, of the prisoner's guilt. To illustrate the nature of such a doubt: on taking your seat as jurors, you were sworn upon the Holy Bible, to well and truly try the issue before you, and by that oath recognized the existence of the Deity as revealed in the Bible. Have you never had a doubt as to the existence of such a Being! Has the sky of your mind ever been unclouded, so that you could gaze with the bright eye of belief upon the unveiled throne of Divinity? No; you have had doubts, but were they reasonable, founded on the evidence? Had you, in connection with your doubts, communed with the calm, still hour of night, with no companion save silence, the winds, and stars; the rosy dawn, the rising of the majestic sun, the waking of a world; earth, sea, and sky all glittering on the gladdened vision of stirring and delighted mankind; had you observed the decline of day, the lengthened shadows, the setting of the sun, the rise of the silvery moon, and the sparkling stars; each ray of light, as it proceeded from them to you, illumining the soul ;-or had you viewed through the tele
seope the belts and rings of old planets and newly discovered ones,-resolved the nebula into splendid systems of glorious suns with their circles of flame: had you listened to the "small, still voice” of the sighing zephyr, beheld the opening flower, the tinted shell, the butterfly's wing, the majestic mountain; had you stood upon the brink of the mighty Mississippi, and watched its liquid wave roll ever on, towards old ocean, no mean emblem of eternal power! Or gazed with wonder and awe upon the great falls of Niagara gliding over the rapids, under the rainbows ever singing God, God, God. The land and ocean, storm and tempest, all proclaim that “The whole earth is full of his glory.” If you look within your own minds you find still clearer manifestations of almighty wisdom and power than elsewhere in the universe. The mind so strong and yet so weak, so intelligent, comprehensive, and grasping, with all its mysterious operations, plunging now into the bowels of earth, now exploring and analyzing its surface; then leaving it, and holding converse with the heavens; listening to the “music of the spheres," again descending to the abodes of men, tracing effect to cause, following all the meanderings of passion and will, exclaims in the fullness of its admiration, “There is a God, for I am fearfully and wonderfully made.” It cannot be denied that the evidence is full, ample, and complete, and no reasonable doubt can hover around the mind.
With these general principles to govern us in our investigation, let us examine the law as applicable to this case.
The authorities will show :
1. The malice necessary to constitute the crime of murder is not confined to the intention to take the life of the deceased, but includes an intent to do any unlawful act, which may probably end in depriving the party of life. 2. If an action unlawful in itself be done with the intention of mischief, and death ensue, it is murder. 3. When death issues from sudden passion upon reasonable provocation, it is manslaughter. If without such provocation, or if the blood has time to cool, it is murder. 4. When the provocation is sought by the prisoner it cannot furnish any defense against the charge of murder. 5. If a prisoner uses a weapon that was likely as used to produce death, the law presumes he used it with the intention of killing.
These propositions contain the law, gentlemen, as laid down by the most eminent jurists of this country and Great Britain. What are the facts? The witnesses for the prosecution, on motion of the prisoner, were separated, neither hearing the testimony of the other. The facts as to Ward's visit to the house of the deceased, and the murder, are proved by young men from eleven to nineteen years of age, all of whom reside in Louisville, and are members of the most respectable families in the city. They are all unimpeached, and unimpeachable. Though separated, they have ah, without exception, related the same facts, differing only as their relative posi. tion to the parties in the school room enabled them to see and hear, more or less of what transpired.
(Mr. Carpenter here exhibited the diagram of the school room, showing the relative position of each witness, as detailed in the examination.)
The youthful mind is fresh and pure, averse to falsehood and dissimulation, and always disposed to speak the truth. The pure waters of truthfulness and sincerity, well up, naturally, from the untroubled fountains of their hearts. How unfortunate, that men so soon forget these early impressions, and pass through life in masquerade. Of all testimony, that of these young men, trained up at the feet of their deceased teacher, who loved and adored truth and hated falsehood, is the most reliable. The facts, as related by them, all corroborating each, and each in turn strengthening all, are unanswerable. It is as though an angel had dipped his pencil in a beam of light issuing from the eternal Throne, and cast this murder upon the canvas with such startling correctness, that while you gaze, you know the prisoner set for the picture. Efforts were made by the learned counsel to impeach, indirectly, these young men, by asking them, did you not tell Dr. Caspari and others that Butler struck Ward first?