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It were pitifdl Uiat he should die so young — now in the full flush: of
his early manhood — one so loved in the social circle— one looked upon
so hopefully by Uie ohurch-^one who has proved himself so glorious a
gemua and so £t to lead the young men of America — ^it were a pity that
he should die, even by the unrelenting hand of disease, and wh^ sur-
rounded by all that he loves on earth. But to be cut off thus — ^in sudi
a cause — ^to be sa<^ificed in response to such a wild, insatiate cry for
Uood as has been raised by this Prosecution — oh, it were pitiful,4t were
marvellously pitiful I

I have pleaded this case oidy by the law and the fact» ; but were I
compelled to ask mercy, was there ever a ease in which it could be shown
with more propriety ? Yet I do not ask you to pardon — there is no
oecasion for that. I ask you to do your duty, to examine the case care-
fully, to see if you discover the Commits of murder there, and then tell
vm if you can say that this young man shall dro— ^hall die a felon's death ?
I know you cannot.

When I found that there were twelve men here in ^ardin, ready to
try this stranger justly and fairly — twelve men untouched by the shafts
of malice that have been hurled at his youthful bosom— then good omens
dieered my heart And when the hcta of this case are fully made
known, when the black clouds tiiat have enveloped it are all dispersed
by the bright Sun of Truth, I am sure that the verdict of acquittid
which I anticipate at your hands, will receive the universal commenda-
tion of a great and manly people,

I have spoken l<mg, gentlemen, and perhaps have wearied you. I
need not have consumed so much time, for I feel coi^dent that the
cause of my client is safe in your hands. I know that others are to
fellow me, the latohet of whose shoes I am not worthy to unloose ; and
if I have left any chasm in. the argument of this case, I am sure they
will fill it up. I thank you gentlemen and take my leave.

At the conclusion of Mr. Marshall's argument, the Court adjourned.


The Court convened as usual

The argument was continued by Mr. Harris, for the Proseoutioni who
addressed the Jury for between two and three hour&

He was followed by the Honorable John L. Hefao, who spoke af
fbUows :

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Gentlemen ot the Jury : —

I have often addressed you in the jury box and from the rostrum t
on the stump and in the muster field. Tou are all aware that in the
discussion of any subject in which I feel a deep interest, my manner is
usually excited and earnest, but on this occasion I speak under great
disadvantage, having been confined to my bed by illness almost con-
stantly for the last two months ] and only hoping that I may be sustain-
ed and that you may bear with me, until I can discharge the solemn
duty I owe to my client.

I feel, perhaps, more deeply interested in this case than I ever have
felt in any other in which I have been engaged. I feel thus from the
nature of tiie ties that bind me to the family of this defendant.
Many years ago, when I first entered the political field, I met his fi&ther
in the Councils of the State ; and again and again have I associated
with other members of the fiimily there. And as in the beginniog of my
humble political career, these men took me by the hand and gave me
their aid and support, I have ever felt grateful to them ; and now, that
an event has unfortunately occurred by which I hope to be enabled to
do something, so far as my poor ability goes, to cancel the debt, you can-
not wonder ihat my deepest sympathies are enlisted.

The gentleman who preceded me has alluded to outside infiuences-—
to the fact that this prisoner was driven from his own home, to seek
justice here. It is true that from the moment the ev^nt occurred for
which he is now on trial, distorted and prejudiced accounts of it were
given to the public ; and, accompanied by articles of the most inflam-
matory character, were spread upon the wings of the wind by the
newspaper press. Therefore, this excited feeling was caused, and there-
fore, the prisoner asked only what the law gives — that he might be triad
in an unbiassed and unprejudiced community. There were other coun-
ties, in that circuit, much nearer Louisville than this, and no one ex-
pected this would be selected. But that judge, perhaps willing to rid
himself of the perplexity and responsibility of such an excitiDg trial, on
his own motion removed the venue here, to the great surprise alike of
'^iHi^^risoner and all his counsel. But now that his cause 'is brou^t
^^%iE%)M;^tm',1ie only asks at your hands a fair and impartial trial.
kffoij^j^^lgg^ feftfeumstance alluded to, was Hie position of Mr. Ward. .

]Q[e ^aa been held up to you as the possessor of great wealth, and re-
i4%4t^^ to invoke an improper and unmanly feci-

al ^^kidM'''^mWJHh(M^^%hete is nothing whatever in evidence
'WW ^iHi l'1^i\i4^ut^^^Mii^ the impression that has ]

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left on jour minds. Mr. Ward is the possessor of no such princely for-
tune as you have been led to believe, and the property of the family
consists of one house and lot in Louisville, a partnership in a commission
' iU)re in New Orlesins, and, by the mother of the accused, the plantation
bk Arkansas owned by him, with, perhaps, a few slaves.

The Oouncral for Befoase 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 mc^t distinguished lawyers
in the land had been engaged to conduct the Prosecution. It was said,
at different times, that Bufus Choate of Massachusetts, Thomas Oorwin
of Ohio, John Bell of Tenntosee, 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 re-
gard to this case. I do not wonder at it — I do not condemn it. When
I read the first accounts of the transaction that appei^ed in. the news-
papers — ^very different accounts, gentlemen, from the facts that have
been elicited before you — /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 pro^
perty 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 wo are true to ourselves, our coun-
ty will be safe, and the tree of liberty will continue fresh and green."
But those who would excite such prejudices and build up such distino-
tions as these> are recreant to justice and to patriotism. Here, thank God,
all men are equal, and in the exercise of their civil and constitutiomd
rights, no one is above aiM)ther.

Complaints have been made that this defendant has been living in
luxury and splendor, in jail here, while oUiers have suffered from
having their absolute wants neglected. That others have suffered,

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(THB WABI> TB^AXi. ' ^

; ti^re is no dou]>t. Bat after the accused was remay^ to dijff plaee^.I
Tisited him in jail, and found him suffering from a severe attack fd
neuralgia and inflammatory rheumatism — the same disease that had re-
cently 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 tiie 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 bo punished to the death
before they are trjed ? Even if this acqased was provided witii the
simple necessities of life, if that mother wished to go and lay her t«idcr
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 un-
just 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

But the gentleman tells you you have no right to retain a single par-
ticle 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, diviiie."

He has alluded to the first murderer. But did not God in mercy hear
even his fMrayer, and place a mark upOn his forehead 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 mercy from on hi^, 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

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—HIS if yefigeance 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 excite-
ments. 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 in defense of your liberties, did not escape the
shafts of calumny ; and you remember that the Bedeemee 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 to-
gether. I have no desire to appeal to your sympathies ; but I have an
aSiding 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 any
thing 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 ever him, if it may be done consistently with justice and

I am ready to meet the gentlemen in regard to what they haye 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 arraign-
ed, or to satisfy you of his innocence beyond a reasonable doubt, to re-
turn 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 con-
troverted, 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


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their own testimony has been such as to deny that implication, it mnat
at least raise a doubt in your minds, and all doubts inure to the benefit
of the prisoner. I contend the Prosecution hare 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 gentle-
manly, and that in the conversation hot words were given — a scuffle en-
sued, 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 & 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 Bussell on
Crime, 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. 37§, 379, from which I will read you an
extract. Russell, P. 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 hav#
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
be^n prompted by "a heart bent on mischief, and regardless of sociid
duty, and a wicked, depraved and malignant npirit." If you are oon-

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ViMed^Umi bs WM not{iramp(ed,thaa, Uiay^ur ^u^jtpi^guj^ bi^
diarge of murder.

The diffarenoe between mftUee ^q>resa^u:^ Impjiied; a^d the cirqvqir
(rtanoeft under whicdi it may be implied, are ^pQinjbed, out in Buasell, P.
4d2« It may be eiUiat expresMd-or implied £ro^ pertain, reasons^ but
Ais impUcatiim is mer^y an inferenoe^rronly a^ p^supiption» ai^d if X
Mm able to meei it mth facta that oombat and destroy that.preaupaption,
of course it can have no effeet*

With a view to fasten upon your minds the distinctions between
mmpder) manslaughter and juiatifiable homicide, I will r^ad yoiji a few
eases. (The principal cases cited by Gov. Helm on these pointy, wore
fixim Wharton, Pp& 224, 284, 285; and Bussell, 513, 514, 515.)

It must be remenLbered; that we have no written law in Kentucky
velat^ to these pmnts^ and that the authorities from which I have been
reading are English authorities. ' Many of these old books, being coi^a-
piled from vartons sources, ooUeeting here one. maxim of law and there
another, contain many in^etusistenci^ and contradictions ; andmoreoyer,
^ir tenor is mudi more stringent than the decisions which usu^ly are
and idways have been made in the United States.

As an illustration of this, when in this case we made a motion for a
separate trial, His Honor remarked that according to the rules of British
law it was doubtful whether it could be granted. . But the custom to
grant a severance when desired has prevailed so long in ]S!entucky that •
it is the rule and the law as propounded here, and among th^ counsel of
high eharacter and ability who were present, not one ventured to deny or
objeet to the proposition.

And if the gentlemen design in this {prosecution to rely on the rigid
and stringent rules of British laWj we can readily show yqu how much
that law has been liberalized and luneliorated here. They read from the
books that a man when attacked must retread to the wall, and Uiat his
life must be in imminent danger before the law would justify him in
killing his adversary. But I can point out to you American authorities,
and decisions, showing that he is justified in taking the life of his Qppo*
nent, not only where his own life is in danger ; but where he is jm dan-
ger of great bodily harm, or has reasonable grounds to apprehend: that
be is in such danger. This is an important fact ; it is right and, proper
that weshould eome home to our own manner of modifying and adnunister-
ti^ the laws, and so His Honor decided.

But genttemeii, I think we now fully understand what is meant by
tnalice ; and let os proceed to i^e testimony of jth^-oase. Let us first
endeavor to asoertain the motive. . How do we find this defendant — ^bo^
had hia mind and heart heea engaged, wheitbe^dsited the sqhQO^ coanji

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clfPfot .Butler ? He kas been employed, with his yooQg wife^in maliiiig
pr^paratipQ to depart, m a few days, for his plantation in Arkansas.-*-*
Be had been. making purohases with that view, and their . passages by
steamboat were already engaged. Now if the heart and mind seemed
ei^grossed by proper and natural subjects^ it is reasonable to presume
that Ijiey were engaged on nothing foreign and, wrong. Two witnesses
who sj^w him-^the one on the evening previooa «Lnd the other on th^
yery moniing of this transaction, tell you that he was ei^^ed in ordina-
ry busioess and that they noticed in his appearance nothing different
from his usual bl^nd, quiet and courteous manner. This certainly would
seem to indicate a mind freet from malice, and I appeal to your sense of
reason whether it would m^turally ha¥e been the case, if he were cherish*
ing the intention to do an fU3t which must result in the dei^th of a man
who had resided in his father's family for two years-~a man with whom
he never had a single word of difficulty but whom he esteemed $& a gen-
tleman and loved as a social friend.

Up to Uiis time, there can be no presumption pf malice ; on the con-
trary, eyery thing indicates quite another state of mind. But,^ while
his father and mother wore both away, Willip, returned from school,
|tnd sidd to him : " See how I have been whipped ; but I dpn't so much
miud the sting of the lash^ as being called a liar in the presence of the
whole school. I would rather have died than that.'' Then what did
the pTisoner do ? In all the e^Lan^pl^es tjxe gentlemen lukve r^ad here,
firpn^ fij^t to last, the stimulating cau^e of the homicide was brought
hon^e to the man himself.^ But this defendant had no grievance of his
own to redress ; he had not been insulted — he had not been struck

What said the little bpy to him ? " Brother, I wist you would go
arou^ to the s^hoolhouse, and have this explained." And, just at this
ppint, let us ^top; to inquire wl^o that brother was. The gentleman who
opened the. case for thp Prosecution has objected to our course in luring-
ing, among others, men ^ho hold high rank in public life, to show his
disposition and previous life ; and asks triumphan% why we did not
produce Tom, J)ick and Harry, from the city of Louisville, to prove his
(diaraptar. But I. ^k you, gentlen^en, if we havo not established it
beyond t^e ^hadow of a doubt, and thi^t, too, by witnesses of aU ages,
.pirounxstances and positions in life? T^e have traced )^m from the
tune when he prattled, an infi^ntjin hi^ mover's arm^, throng the try-
ing days of boyhood and youth, — ^in school,^-in college,— an»id the
temptations that surround young manhood, — in the 80^§1 cirde, and
in travels on foreign shores, — and, under aU thesa oircjiunstances,
we $nd him ever the warm, faithful and affectionate brother and son^
firiend ^ sehoolmi^^— and, in itfteryeara^ still the sapie iisiipixfixiki

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srnd genial genileman. Free from the vices of youth and of mtm^
hood, wherever he has gone, he has left behind the same impress, by
the mildness and gentleness of his demeanor — the kindness and warmth
of his heart.

This is the man whose little brother, in the absence of his father,
besought him to go and ask an explanation, and of whom you are to
judge whether he was actuated by bad and malicious motives, when he
complied with the request. But they contend that he bought the pistol
for the very purpose of shooting Professor Butler. I teply, that unless
the manner in which he used it afterwards was unlawful and wrong, and
sufficient to produce conviction, the fact of the purchase can have no
bearing upon the case. Every doubt must be in his favc^; the fact of him
procuring arms was not remarkable, for we have shown that he was about
to leave, in a few days, on a long journey to his plantation in the South.

Well, he bought the pistol, and what next ? Three doors above,
we find him making arrangements, in an interview not sought by him-
self, for the repair of a little musical box, to while away some of her
winter hours, and afford pleasure to his young wife in her new South-
ern home. The circumstance may seem a trivial one, but I think, as it
{^ows how the heart and mind of the prisoner were occupied, it will
give us some indication whether they were under the influence of malice
and malignity, or not.

We have seen what took the prisoner to the school-house ; you have
heard his declarations both on the way and before he left home, imd .
you are able to determine his motives, as ^ as we may judge of human
i/ciotives from human actions. '* But,'' say the gentlemen, " he had his
pistol in his pocket, and, therefore, he must have gone with a heart
bent on mischief.'' Did you notice, gentlemen, the confb(»on of one of
their own witnesses on the stand — Dr. Thomson — ^when asked if he had
any weapons on his person ? You know the only natural inference to
be drawn from his manner, and his refusal to answer the question,
unless compelled to do so, as well as I. And even my fHend who pre-
ceded me, and was so horror-struck at the idea af a weapon in the pes*
session of this prisoner, according to the best of my recollection, was in
such condition during the whole of the last political campaign, that if a
little boy had chanced to approach too near his person', with a lighted -
stick, he would have been sure to go off tX once !

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Online LibraryLeague for the Revolutionary Party. City Workers CSocialist action : bulletin of the City Workers Committee of the League for the Revolutionary Party → online text (page 9 of 20)