he soon returned, accompanied by his brother and Murdaugh. On
this, Redding returned to the bar-room, and accosted Murdaugh in an
offensive manner, accusing him of having drawn a bowie-knife on him
at the previous difficulty. This Murdaugh denied with an epithet,
and drew a Spanish dirk-knife, telling Redding to stand off, swearing
he would kill the first man who laid hands on him. One Meeks, at
this point, seized the wrist of his knife hand and struck him with a
cowhide, saying, " You are the d d little rascaL" Several persons
then rushed up, and one Rothwell struck Murdaugh over the head
with a hickory club, or stick, inflicting a painful wound. Murdaugh,
however, gave Meeks his undivided attention, while the latter was
industrious with the cowhide. Murdaugh changed his knife to his
left hand, and, thus using it, caused Meeks to relinquish his right and
retreat. With his right hand free, he made short work of Meeks,
who died immediately from his wounds. The witnesses attributed
one of his wounds to Judge Wilkinson. . Some one gave Judge Wil-
kinson a stab ; but the chief punishment of the Southerners fell upon
Dr. Wilkinson, who seems to have given least offense. He was
knocked down and beaten until almost senseless by Holmes and
others. Rothwell quit Murdaugh and attacked the Doctor, or, at
least, in the confusion, appeared to do so, whereupon Judge W^ilkin-
son fatally cut Rothwell, and inflicted a slight wound on Holmes.
The W^ilkinson party then made good their retreat, and the affair
ended. Meeks and Rothwell lost their lives. The other wounds
inflicted on the various combatants were not serious in their results.
Rothwell was brother-in-law to Redding. Meeks was unacquainted
with Redding, and why he foolishly took part was never explained.
The Wilkinsons and Murdaugh were arrested and committed to jail.
Excitement ran high, and apprehensions of lynching existed. A
remark of Judge Wilkinson in the outset of the fatal tragedy perhaps
enraged the populace more than the bloodshed. When Redding first
abusively accosted him, he retorted that he would not quarrel or fight
with "a man of his profession." The relative number, weight, and
influence of the artisan class in a city like Louisville has undergone
THE EXAMINING TRIAL.
291
great diminution in the last forty or fifty years. Within that period
machinery has revolutionized the pursuits of mankind. In 1838,
instead of the mammoth clothing houses found in every city, there
were numerous and extensive shops, employing great numbers of
workmen, that furnished, as ordered, raiment for the public. Other
pursuits were likewise thus filled. Judge Wilkinson had insulted the
entire guild of labor, and its voice was public sentiment. But the
excitement passed without demonstration.
An examining trial was had at Louisville, Mr. Hardin representing
the prosecution. Judge Rowan the defense. The night of the homi-
cide Redding had put a
messenger on a fleet horse
and sent him to Bards-
town, forty miles away,
to engage Mr. Hardin's
services for the prosecu-
tion. The latter came to
Louisville and stopped at
the Gait House the day
following. Dr. C. C. Gra-
ham says he expressed
to him privately a de-
sire to defend rather than
prosecute, and said that
if the prisoner wished to
employ him he would de-
cline the offered retainer
of the prosecution. Judge
Wilkinson being inform-
ed of this offer, said that he would engage Mr. Hardin if Judge
Rowan needed his services. When Dr. Graham communicated this
to Mr. Hardin, the latter responded, "It is not worth while to see
Judge Rowan; he never needed my services."
The examining trial was marked by great excitement. Public feel-
ing was at fever heat, which the zeal of counsel still further augmented.
In argument Judge Rowan was cool, collected, astute, and exhaust-
less in resources, while Mr. Hardin in some of his appeals was vol-
canic, Time after time would Judge Rowan interrupt him with objec-
tions and counter authorities. Mr. Hardin (the interruption ended)
broke away like a torrent checked awhile only to rush on more furi-
^f''/''//
Judge Rowan.
292
BEN HARDIN.
ously. Murdaugh once ventured an interruption. "Be quiet, little
chicken," roared Mr. Hardin ; " I will come to you directly, and when
I do I will not leave a feather of you."
The examining trial resulted in committing Judge Wilkinson and
Murdaugh to answer the charge of murder.
Subsequently indictments were found accusing all three of the mur-
der of Rothwell and Meeks. They were admitted to bail which was
given. They petitioned the Legislature for a change of venue, that
department alone exercising this prerogative at that time. In the
January following, the venue was changed from Jefferson to Mercer
circuit court, and the trial fixed for March following. In the mean-
time, the marriage so rudely interrupted was quietly celebrated.
Mr. Hardin, in his argument on the trial, sarcastically observed
that Mr. Prentiss spoke of Judge Wilkinson's engagement and mar-
riage as a special honor conferred by the latter on the State. It will
not escape the professional eye that the Kentucky woman's uncalcu-
lating devotion at that juncture was an auspicious circumstance for
the defense. Immediately after the tragedy Mr. Hardin was employed
by Redding to assist in the prosecution. He appeared at the exam-
ining trial, and by his zeal so stirred public feeling that a change of
venue was inevitable. That change lost the prosecution its strongest
ally, public sentiment.
Referring to Mr. Hardin's speech before the examining court,
Judge Rowan said:
" But let me tell him if he hopes to gain anything by exciting the passions
of the jury he miscalculates. He is not now amid the fervors which this
case excited where it happened. He can not here produce the volume of
passion which the false and erroneous misrepresentations of the conspirators
produced there, and to the propagation and extension of which he, by the
force of his acknowledged talents before the examining court, contributed.
Here he can not, as there he did, to a considerable extent, excite the
mechanics and working classes against the gentlemen slave-holders and cotton
planters."
In Mercer county, when the trial came on, public feeling was on
the side of the defense.
The case was called for trial at Harrodsburg by Judge Bridges, on
the day fixed by the legislative act, March 4, 1839. On the day fol-
lowing a postponement was granted the prosecution until the i ith.
On that day the trial began. The prosecution was represented by
Edward I. Bullock, prosecuting attorney, and Mr. Hardin. For
EVIDENCE AND ARGUMENT. 293
defense appeared John Rowan, S. S. Prentiss, Colonel Robertson,
Samuel Davis, John B. Thompson, Charles M. Cunningham, James
Taylor, and C. M. Wickliffe. Prentiss was not present when the
case was called for trial, but was expected from Washington where, as a
member, he had attended the session of Congress then just adjourned.
During this delay "great was Wilkinson's anxiety," observed Pren-
tiss' biographer, "the more especially as Ben Hardin, the Achilles of
the Kentucky bar, had been engaged to prosecute. He feared Hardin's
power over a Kentucky jury. '' Prentiss only arrived in court after the
jury was completed — but his fame had preceded him. Crowds lined
the streets to catch a glimpse of him. When Hardin saw him alight
from the hack in which he came he remarked: "I know now what
I've got to meet."
The trial occupied five days — the evidence being completed in three.
Mr. Hardin examined the witnesses for the prosecution and Colonel
Robertson for the defense, except a few examined by Judge Rowan.
Sav^e a single objection at the beginning of the trial by Colonel Robert-
son, to a part of Redding's testimony, its progress was notably free
from those interruptions whereby zealous counsel but too frequently
and needlessly protract trials. W^itnesses were passed back and forth —
examined, cross-examined, re examined, and re-cross-examined — with-
out objection. The counsel on either side manifested the greatest equa-
nimity of temper on all occasions during the trial. The theory of
defense in evidence and argument was that Redding and others had
formed a conspiracy to slay or injure the accused, that the attack at
the Gait House was the result of that conspiracy ; and that defendants
acted in self-defense. The prosecution- denied this conspiracy and
insisted that defendants had themselves conspired. The result of the
evidence was manifestly in favor of the theory of the defense.
The argument was conducted in the following order: Mr. Bullock
opened for the prosecution ; he was followed by Messrs. Robertson,
Prentiss, and Thompson, in the order named. Mr. Hardin next
spoke; Judge Rowan followed, and Mr. Bullock concluded. Bullock
was a young man " much respected for his private worth, as well as
his promising professional abilities." He made a sensible speech
without effort at display. Colonel Robertson was sixty years of age,
or more, a native of Virginia, and of polished manners. His oratory,
it was said, partook more of studied propriety than fervid eloquence.
Of that brilliant child of genius, Sergeant S. Prentiss, so much has
been said, and so extravagantly, that it is impossible to give the piti
2QA BEN HARDIN.
of it. His speech on this trial was one of the happiest forensic efforts
of one of the most brilliant orators that has Hved in any age. John
B. Thompson was a bright and genial man, then in the outset of a
career that led to the United States Senate, but still fell short of what
his talents and genius might have achieved.
Judge Rowan, in the course of his argument, having stated that his
colleagues, who had preceded him, had "reaped the f^eld," said : " I
feel that I have been irregular and discursive, much more so than had
been my wont in years gone by, and I ascribe it in some degree to
the causes I have named. You, perhaps, may ascribe it to the grow-
ing weakness of senility, and to guard against further exposure of
weakness, from that or any other cause, this shall be my last forensic
effort." And so it was, Messrs. Robertson, Prentiss, and Rowan,
all gave Mr. Hardin special consideration in their speeches. Judge
Rowan, indeed, referred to the facts of the case only incidentally—
his whole effort being devoted to an arraignment of Mr. Hardin for
engaging as prosecuting counsel. Colonel Robertson, in concluding
his argument, thus referred to Mr. Hardin :
" The distinguished gentleman who aids in this prosecution has furnished
us with some proof of the corroding influence upon the human heart caused
by a long indulgence in prosecution for alleged crimes. I am sure that
nature gave him a kind and generous disposition, and that he is still pos-
sessed of these amiable qualities. I do not doubt but he has so long lent his
aid in prosecutions of this kind that he has brought himself ' to look on
blood and carnage with composure.' He will doubUess make, as he has
heretofore made, a bold and mighty effort to convict the accused, though in
my judgment such convicdon would be against both the law and evidence.
"Neither the shrieks nor tears of the lovely Andromache, nor the groans
and lamentations of the aged Priam, can stay him in his fierce pursuit ; the
wife and the father sink into nothingness when compared with the glittermg
fee that awaits his efforts ; he has bargained for conviction, and he goes for
his bond. Give it to him, gendemen. Tell him to take his pound of flesh,
but tell him at the same time that if in cutting it he spills one drop of blood,
Shylock himself shall be the only victim of the law."
The speaker refers to the fact developed in the evidence that Mr.
Hardin was paid for his services a fee of one thousand dollars by Red-
ding. Mr. Prentiss also deemed it worth while to allude to this fee
in his mention of Mr. Hardin:
" One of the ablest lawyers of your country, or of any country, has
been employed to conduct the private part of this prosecution ; employed,
I
ORATORY OF PRENTISS. 295
not by the Commonwealth, but by the real murderer; him whose forehead
I intend, before I am done, to brand with the mark of Cain, that in after
life all may know and all may shun him. The money of the prosecutor has
purchased the talent of the advocate, and the contract is, that blood shall be
exchanged for gold. The learned and distinguished gentleman to whom I
allude, and who sits before me, well may excite the apprehension of the
most innocent. If rumor speak truth he has character sufficient, even
though without ability, and ability sufficient, even without character, to crush
the victims of his purchased wrath.
"Let not the learned counsel who conducts the private part of this
prosecution act the necromancer with you, as he did with the populace in
the city of Louisville, when he raised a tempest which his own wizard hand
could not have controlled. Well may he exclaim in reference to that act,
like the foul spirit in Manfred :
' " I am the rider of the wind,
The stirrer of the storm;
The hurricane I left behind
Is yet with lightning warm.'"
As a fair specimen of Mr. Prentiss' oratory, and of the felicity of
his appeals to the jury, and especially that most susceptible of all
auditories — a Kentucky jury — the following extract is given :
" But Judge Wilkinson had no right to interfere in defense of his
brother; so says the Commonwealth's attorney. Go, gentlemen, and ask
your mothers and sisters whether that be law. I refer you to no musty
tomes, but to the living volumes of nature. What ! a man not permitted to
defend his brother against conspirators, against assassins, who are crushing
out the very life of their bruised and powerless victim ? Why, he who
would shape his conduct by such a principle does not deserve to have a
brother or a friend. To fight for self is but the result of a natural instinct,
which we have in common with the brutes. To defend those who are dear
to us is the highest exercise of the principles of self-defense. It nourishes
all the noblest social qualities, and constitutes the germ of patriotism itself.
" Why is the step of the Kentuckian free as that of the bounding deer;
firm, manly, and confident as that of the McGregor, when his foot is on the
heather of his native hills, and his eye on the peak of Ben Lomond? It is
because he feels independent and proud ; independent in the knowledge of
his rights, and proud in the generous consciousness of ability and courage to
defend them, not only in his own person, but in the persons of those who
are dear to him. It was not the blood that would desert a brother or friend
which swelled the hearts of our fathers of the ' olden time,' when in defense of
those they loved, they sought the red savage through all the fastness of his
native forest. It was not such blood that was poured out, free as a gushing
2q6 ben HARDIN.
torrent, upon the dark banks of the melancholy Raisin, when all Kentucky
manned her warrior sires. They were as bold and true as ever fought
beneath a plume. The Roncesvalles pass, where fell before the opposing
lance the harnessed chivalry of Spain, looked not upon a braver or better
band."
Said one who witnessed the trial, the whole interest centered in
Prentiss and Hardin. Large numbers attended from the surrounding
counties. The court-house was crowded during their arguments with
the beauty and intelligence of the State. But the tide all flowed
toward the defendants. If anything were lacking to their acquittal,
the oratory of Prentiss more than supplied it. Said an eye-witness :
"Great excitement prevailed during the trial. Feeling was strong
both ways. But Prentiss' speech melted things down wonderfully. "
The prosecution had been literally overwhelmed before Mr. Hardin
came to speak. He did not entirely conceal the consciousness of this
fact, yet in the report of his speech unmistakable evidences of his
genius and power appear. During the adjournments of court, and
even the night preceding his address to the jury, Prentiss had been
at the card table and indulging in deep dissipation. On the contrary,
all his odds and ends of time Mr. Hardin devoted to laborious research
and preparation. His speech occupied parts of two days. He slept
none the intervening night — (as one described it) through the long
hours " like a Corypheus he worked with the facts and law of his case,
consulting authorities, arranging his matter, leaving its dress alone for
the sure inspiration of the moment." The reporter found it " neces-
sary" to "compress his exhaustive and masterly speech of five hours.
The "compressing" process denuded it of many of those idiomatic
phrases and witty sallies that lent it pungency and charm. Others
who spoke in the trial, notably Mr. Prentiss, afterward carefully
revised the report of their own speeches. Mr. Hardin declined
making any revision. He coinplained of the great injustice done him
in the report. The following is the speech as reported :
"I shall, gentlemen, very humbly and very cordially congratulate you
u])on having this case brought so near a close. It has already been protracted
beyond the usual limits of criminal trials by the extraordinary ingenuity and
uncommon array of talent enlisted on the occasion. The gentlemen on the
opposite side have felicitated you upon the i)oliteness of your patience, and,
among others, I too return you my thanks for your attention.
"I litde expected when I engaged in this cause in Louisville last winter
iliat I should ever hav» to address you on the subject. Although T have
SPEECH IN THE WILKINSON CASE. 29/
been fifty years practicing at the Kentucky bar, this is the first time I ever
had to address a jury in this place, and I can not help feeling that I am as
much a stranger here as any gentleman who has addressed you. I shall,
however, in speaking to you, apply myself to an exposition of the facts and
of the law bearing upon them ; and whatever may be your feelings, you will,
I am sure, keep in mind that you are bound to exercise your reason, and
that you owe a duty of no ordinary responsibility to yourselves, your char-
acters, and your country. That duty is a sacred trust reposed in you which
you can not weigh lightly without injury to yourselves as well as wrong to
others. Nor must you surrender up your reason to your passions, and allow
yourselves to be carried away by the shouts of applause from a fashionable
audience, as if you were in a theater where a Junius Brutus Booth and a Miss
Ellen Tree exhibit the practiced arts of controlling the feelings and success-
fully eliciting the noisy plaudits of excitement. This is not a theater; this
trial is not a farce; nor are you seated on those benches for amusement.
This, gentlemen, is a solemn court of justice, a solemn tribunal in which
your judge, presiding with becoming dignity, represents the majesty of the
law, and in which you are expected to deliberate with becoming gravity upon
circumstances of awful import. The appalling death of two fellow-creatures
is the occasion of your being here assembled, and the guilt or innocence of
those at whose hands they fell is the object of your solemn investigation.
" Even though I knew I should have to address a jury of strangers, and
an assemblage to whom I am personally unknown, I litde anticipated that I
should have to make a speech to any other audience than that usually to be
found in our halls of justice. But my friend, Colonel Robertson, whose
youth and warmth, in that way, urge him to precedence, has taken me by
surprise, and placed before me a galaxy of beauty and fashion, which might
well deprive me of my presence of mind if I were not fortified with less of
the ardor of youth in my veins than himself, and were I not less practiced
in those graces of person and manners which he can so successfully play off
to woo and win their fascinating smiles.
" By law, and in conformity with the original institutions upon which all
law is founded, this trial was to ha\e taken place where the occasion of it
occurred — in the county of Jefferson. The Legislature, in its wisdom, has
thought fit to change the venue from Jefferson to Mercer county; but why,
I am unable to say. For even Colonel Robertson, the very able counsel for
the defense, has admitted that, although for a time great excitement existed
in Louisville, yet, after the investigation at the examining court, that excite-
ment was altogether allayed. In this country experience has always taught
us that when a change of venue is sought, the object is not to obtain justice,
but to evade it. The object is to thwart and embarrass the prosecution ar.d
multiply the chances of eluding the responsibility of the law. How is this
effected ? Is it not by a removal to some place esteemed favorable to the
2g8 BEN HARDIN.
accused, by a removal so distant from the scene of action that the expense
and inconvenience render it probable that but few of the witnesses can
attend ? Bv a removal to where witnesses of a character dubious, if not infam-
ous, where known, may find credit because they are unknown ? Here we are
some seventy or eighty miles from the stage on which this tragedy was acted,
vet we are asked why we did not bring the stick and the cowhide, and Bill
Holmes, the pilot, as if we would be afraid to produce them were they
within our reach. I would ask the opposite side, in my turn, why gentle-
men have brought us eighty miles from the scene of action where we could
have elicited the truth in every particular? I listened yesterday with great
p easure to Colonel Robertson, whose speech was very good, and evinced as
much of the fire of youth as the flowers of rhetoric ; but I can not say it
was much calculated to convince the understanding that the ' worse can be
made to appear the better cause.'
" I also listened with great pleasure to Mr. Prentiss, who addressed you
yesterday, and in part to-day, and I must say that, although there were in
his speech some things which I could not approve and many deductions
which I could not admit, yet, on the whole, it was an oratorical effort which
I could not help admiring. I am even disposed to go farther, and to say
that I am utterly astonished that such forensic powers, so ably wielded, did
not prove less abortive, -but I must attribute the feebleness of the effect more
to the weakness of the cause than to the want of genius in the advocate.
However, Mr. Prentiss really astonished me with one proposition he laid
down with respect to the common law of this country, that every man is to
judge for himself where the jjoint of danger lies that entitles him to disable
another, or to kill him, lest he might, in turn, by possibility, become the
killed ; so that, in fact, if it were so, the point of danger could never be
defined by law, because what a brave man would consider no danger at all,
a timid man would consider the point of danger bristling with a thousand
dentils AVas there ever such a monstrous doctrine recognized by the laws
of any community ?
"(Here Mr Prentiss interrupted Mr. Hardin to say that he had only
urged that what might be consiilered by a man, from apparent circumstances,
the point of danger, where resistance was necessary for his own preservation,
would in the law be grounds for justifiable homicide.)
"Mr. Hardin : I will come to that in due time. The dilemma can not
be removed, that the same point, according to this doctrine, is, and is not,
the point for resistance contemplated by the law. No, gentlemen; the law
recognizes no such absurdities. The law was laid down yesterday correctly
by the district attorney, that when the killing of a man has taken place, it is
murder in the eyes of the law, and must be pronounced by the law to be a
murder till the contrary is shown. What, then, becomes of this new doc-
trine, unknown to the law, that the slayer, and not the law, is to judge and
SPEECH IN THE WILKINSON CASE.
?99
presume the justification ? The law itself says all killing of one man by
another is murder. The slayer, according to Mr. Prentiss, says: 'Oh, no,
I killed my man because I fancied he would kill me ; it is not murder, it is
justifiable homicide ! ' Yet, the law again says, if a sheriff, who hangs a
man by lawful authority, in doing so commits only a justifiable homicide,
should, even for the best of motives, instead of hanging the man, as bound
to do, chop his head off with a sword, though death must necessarily follow
either way, yet he is guilty of murder, and liable to the punishment for the