The counsel for defense have been alluded to. I did not think, after importing a man from the vicinity of Cincinnati, in addition to the other counsel retained, to assist the officer of the State, and to make an eight-hour speech to this jury, we should hear any remarks on that point from the prosecution. The truth is, the accused expected, and it was currently reported, that some of the most distinguished lawyers in the land had been engaged to conduct the prosecution. It was said, at different times, that Rufus Choate of Massachusetts, Thomas Corwin of Ohio, John Bell of Tennessee, and other counsel of equal ability and power had been retained. It was, therefore, determined, and whether properly or not, you can judge, that men of talent and reputation should be employed in the defense, and that Greek should be met by Greek.

I have spoken of the excitement that existed and still exists in regard to this case. I do not wonder at it-I do not condemn it. When I read the first accounts of the transaction that appeared in the newspapers-very different accounts, gentlemen, from the facts that have been elicited before you— I was excited and exasperated, and I cannot blame the masses that their feelings were aroused, for it only shows that their hearts are right, and naturally revolt at scenes of outrage and of wrong. But when a man is brought to the jury box for trial, those who would endeavor to excite a feeling against him, either because he is rich or because he is poor, ought to hang their heads in shame. Who of you, gentlemen, is not striving to obtain a little of this world's goods; and what can you think of those who, when a man is charged with crime, because, by honorable means, he has succeeded in amassing property enough to support him in ease, would say: "Never mind the justice of the case-never mind whether he be guilty or not-he is rich, and let us hang him"? As the first gentleman who addressed you in this case remarked, "So long as we are true to ourselves, our country will be safe, and the tree of liberty will continue fresh and green." But those who would excite such prejudices and build up such distinctions. as these are recreant to justice and to patriotism. Here,

thank God, all men are equal, and in the exercise of their civil and constitutional rights, no one is above another.

Complaints have been made that this defendant has been living in luxury and splendor, in jail here, while others have suffered from having their absolute wants neglected. That others have suffered, there is no doubt. But after the accused was removed to this place, I visited him in jail, and found him suffering from a severe attack of neuralgia and inflammatory rheumatism-the same disease that had recently confined me to my bed, and notwithstanding all precautions, had racked my limbs with a thrill of pain, at every blast that swept over the hills. I went, hoping at least to keep this man alive until he could throw back the foul charges that have been heaped upon him-show their falsity-and vindicate his conduct, as he humbly hopes he can, in the eyes of this jury, and the people of this country. I visited him, and I had a partition and a stove put up in his cell, that his disease might not be aggravated by the inclemency of the weather; and for these precautions his own money paid, so that no wrong has been done the State.

Is it a part of your wish that men should be punished to the death before they are tried? Even if this accused was provided with the simple necessities of life, if that mother wished to go and lay her tender hand on his aching head, if that wife would seek his lonely cell, and soothe and cheer him by the light of her presence and her love, was it wrong? Who, with a heart not glutted with blood could object to it?

I know that the prisoner has much to contend with outside of this prosecution; but, gentlemen, yours is a proud position. You are placed, by the law, a firm shield before him, to protect him from all unjust and improper attacks. With no aim but to learn the truth and to do justice, I feel confident that you will stand like a rock in the midst of the ocean, unmoved by the fury of the wild waves that dash madly against it, only to be broken in pieces. We only ask that you will perform your duty, and that justice may be done, though the heavens fall.

But the gentleman tells you you have no right to retain a single particle of mercy. This is the first time in my life I have heard such a sentiment gravely announced by a man acquainted with the books.

"To err is human-to forgive, divine."

He has alluded to the first murderer. But did not God in mercy hear even his prayer, and place a mark upon his fore head that none might slay him? And when a woman was arraigned on a high charge before the Savior of the world, when none was so guiltless that he might cast the first stone at her, then there was no mercy from on high, and He sent her away with the kind injunction to go and sin no more. In the good Book, we read that we are to do justice and mercy; and shall we come to this jury box with our hearts steeled against the prisoner at the bar-as if vengeance were our purpose and join our voices in the wild murmur, "Let him die, let him die"?

The most rash acts have been performed in the midst of such excitements. We read in Ancient History, of the banishment of Aristides, by his own people from their borders, on a charge of defalcation: but when the public mind grew calm, and reason resumed its sway, they examined more carefully the evidence on which they so hastily acted; they recalled that banished man and made him their treasurer and their ruler. Even the Father of your Country, who bared his noble bosom to the sword of defense of your liberties, did not escape the shafts of calumny; and you remember that the Redeemer of the world, was spit upon and rebuked and buffeted, and put to death, in obedience to the wild cry: "Crucify him, crucify him, whether he be guilty or not."

But you, gentlemen, I firmly believe, will not allow yourselves to be influenced improperly. Come, then, give me your ears to hear and your judgment to understand, and let us reason for a while together. I have no desire to appeal to your sympathies; but I have an abiding conviction that when you hear the law expounded and the facts of this case applied, you will have no alternative but to acquit the prisoner. But

I will not follow the example of others and say that if you do not find as I believe, and as I direct, you must, therefore, be guilty of the vile crime of perjury.

In the feeble state of my health, I shall not endeavor to do anything more than discuss the case in plain, familiar language, which you can all understand, with no attempt at rhetorical display. And I do it with but the single purpose of rescuing my client from the fate which impends over him, if it may be done consistently with justice and honor.

I am ready to meet the gentlemen in regard to what they have said of mercy. The law makes it your duty to hear a case fairly, and where the evidence is such as to justify the act for which a prisoner is arraigned, or to satisfy you of his innocence beyond a reasonable doubt, to return a verdict of acquittal. It is an old maxim of law, that it were better for one hundred guilty men to escape than for one innocent man to be punished; and I lay it down as another proposition not to be controverted, that in criminal cases, where your mind is in a state of oscillation, and you are compelled to weigh carefully and consider nicely before you can come to a satisfactory conclusion, that very fact implies doubt on your part, and you are bound to acquit.

The gentleman has read to you that where a man is killed and there was no malice expressed, the law considers it implied. But if their own testimony has been such as to deny that implication, it must at least raise a doubt in your minds, and all doubts inure to the benefit of the prisoner. I contend the prosecution have brought proof to deny that presumption of malice. They have shown that the parties met politely; that the manner of the prisoner was mild, bland and gentlemanly, and that in conversation hot words were given—a scuffle ensued, and blows were struck, even according to their witnesses the first being struck by the deceased. Does not this effectually disprove the implication of malice?

Malice is a necessary ingredient of murder, and if you doubt that it existed, you must fall back on manslaughter. If you then doubt whether the act for which this prisoner is

on trial was manslaughter or justifiable homicide, you must acquit him; for to give him the benefit of every reasonable doubt is emphatically a part of the duty you are sworn to perform.

It is my rule before examining the testimony of a case, first to read the law applying to it, that I may afterwards present the facts, and show the bearing of the law upon them. And on this occasion the first point for us to ascertain, is, what constitutes murder. In Russell on Crimes, Vol. I., p. 482, it is defined as "The killing of any man, under the king's peace, with malice aforethought, either express or implied by law."

Malice, you will observe, is a necessary and very important ingredient of the crime; let us, therefore, look a little further, that we may fully understand in what it consists. It is very clearly defined, in McNally's Evidence, pps. 378, 379, from which I will read you an extract. Russell (482) also speaks of it as follows: "It should, however, be observed that when the law makes use of the term 'malice aforethought,' as descriptive of the crime of murder, it is not to be understood merely in the sense of a principle of malevolence to particulars; but as meaning that the fact has been attended with such circumstances as are the ordinary symptoms of a wicked, depraved and malignant spirit, a heart regardless of social duty and deliberately bent on mischief."

The heart, you will observe, is here looked upon as the great motive power that prompts men to commit a crime and do a wrong. This is an important fact for you to bear in mind in this case; for I think we have clearly proven by the testimony as to his character and disposition from infancy-his proverbially gentle and unoffending nature, and numerous circumstances surrounding the case, that this prisoner could not have been prompted by "a heart bent on mischief, and regardless of social duty, and a wicked, depraved and malignant spirit." If you are convinced that he was not prompted thus, it is your duty to acquit him of the charge of murder. The difference between malice express and implied, and the circumstances under which it may be implied, are pointed out