University of Virginia Library

12. CHAPTER XII.
THE DEFENCE.

Most of the third day was
occupied by the defence, in
proving the previous good
character of the accused; and
no man was ever arraigned
before a legal tribunal, that
ever had better, stronger and
warmer testimony in his favor.

The prosecuting attorney
began his summing up of the
case about three o'clock in the
evening, and closed in a couple
of hours. He went over the
evidence in a brief and pointed
manner, remarking it was
too direct and positive although
circumstantial, to admit
of any doubt as to the
actual commission of the awful
deed by the prisoner, and
therefore it would only be a
waste of time for him to dwell
upon the subject. There had
been a quarrel, he said;
threats had been used by the
prisoner; he had risen at an
early hour to seek the deceased,
evidently with a vindictive
purpose; had followed
him; the two had been seen
alive only a few minutes previous
to the finding of the
accused over the murdered
remains of the other, with his
own knife, the knife which
had done the deed, bloody in
his hands. What could be
inferred, but that he had killed
him? and if stronger evidence
than this were necessary to
convict a man, he thought that
justice might as well be set
aside as a capital farce. For
his part, notwithstanding one
witness had made herself ridiculous,
by boldly proclaiming
his innocence, for the simple
reason that the accused had
said he did not do it—as if a
man who had slain another,
would stop at a mere falsehood
to hide his crime—notwithstanding
all this, he said,
and the pain it must cost his
friends, he would state it as
his conscientious belief, that
the accused was guilty of premeditated
murder, and he felt,
he believed—in fact he knew
—that the jury, as honest
men, must agree with him.

The counsel for defence was
one of the most eminent lawyers
in the State, and it was
well known he would put
forth all his great eloquence
in behalf of the prisoner;
though what he would find to
say touching the case, was a
matter of general wonder to
every body; for that Arthur

was guilty, all were forced to
believe; and there seemed not
a single point to hang a doubt
upon.

The eagerness of the spectators,
therefore, to be present
on the fourth day, was, if any
thing, even greater than at
any time previous; and it required
the whole police force
to preserve the bar from being
encroached on during the rush.
The appearance of Arthur was
much as on the preceding
days—pale, haggard and dispirited.
It was a terrible trial
to him—for on the decision of
the jury hung more than life.
His father was present, as was
also Mr. Waldegrave and his
family, Marian still deeply
veiled as before.

The counsel for the prisoner
—a fine, noble looking man
—opened the defence, in the
cool, calm, unimpassioned tone
of one who knew his own
power, and felt confidence in
his own mental resources. He
began by saying that the case
before the court was one of
marked peculiarity—more
marked, more peculiar, than
any it had ever been his fortune
to be engaged in, and he
had been a member of the bar
for upwards of twenty years.

“And that which makes
it so strangely peculiar,” he
went on to say, “is the fact
of such a chain of damning
circumstances being
drawn around an innocent
man; for that that individual
who sits there before you, pale
and wasted with care and sorrow,
is innocent of the crime
with which he stands charged,
I as sincerely believe, gentlemen
of the Jury, as I do that
there is a just God in heaven.”

He then went over the evidence
carefully, dwelling particularly
upon that which had
been adduced to prove the
character of the prisoner—a
character, he said, for honor,
honesty, high-mindedness, nobleness
of soul, excelling any
thing he had ever heard or
read of being proved in a court
of justice; and he alluded
triumphantly to the fact, that
upon this one great and essential
point, the witnesses had
all agreed, without a single
exception.

“And now,” he proceeded,
“I will show you, gentlemen
of the Jury, what bearing this
testimony has upon the case,
which you must keep in mind
is one of presumptive, not positive,
evidence. In the first
place, there has not been a
particle of evidence brought
forward, to prove that the
accused struck the deceased;
but on the contrary, it has
been proved that the deceased
struck the accused, and that
in the most insulting manner
—a manner that could not fail
to bring disgrace upon him,
unless he resented it, as every
gentleman should. Now, gentlemen
of the Jury, had he
retaliated at the time—had he
even slain on the spot the man
who struck him—which of

you present would cry him
guilty of murder?—which of
you present, with the proud
feelings of a true man, might
not have done the same thing
under the same circumstances?
And yet, as the case
stands, you have not ever this
foundation to build upon; but
should you find him guilty,
must base your verdict wholly
upon position and supposition.
In other words, from the position
in which the accused was
found by Mr. Nixon you must
suppose he murdered the deceased;
and, merely from supposing
it, deliberately, before
God and man, declare he did.

“Now, as we are supposing,
let us suppose a little further.
Suppose the prisoner, when
found, had declared he had
overtaken the deceased, they
had again quarrelled, and in
the heat of excitement, he had
killed him—which of you,
gentlemen, would doubt this
story, knowing as you do his
unblemished character for
truth and veracity? Not one;
for each would say to himself,
`It is reasonable—it is natural—and
as the man never told
a falsehood in his life, as far as
we can learn, we are bound to
believe him—and believing
him, can not, of course, convict
him of wilful murder.'
Again, let us suppose the
prisoner did kill him in the
manner I have stated, and
there were witnesses to the
fact: what then? There is
not a man within the sound
of my voice, but could tell you
there is no law under heaven
that could convict him of wilful
murder; and the very extent
to which the crime could
be stretched, would be manslaughter,
and that, perhaps,
in a qualifying degree. Thus,
you see, gentlemen of the Jury,
that should you dare to bring
him in guilty on the evidence
before you; I say dare, for it
is an awful sin to doom a
fellow creature to death, as in
this case, without positive
knowledge of his guilt; and
God, who sits in high heaven
above, before whom you are
sworn, will hold you responsible
for your verdict; I say
should you dare to bring him
in guilty, as the case stands,
you would do what you
could not do were there witnesses
to the deed; and therefore
you would be actually
giving more weight to circumstantial,
than to positive evidence.

“But let us go further,
gentlemen of the Jury, and
suppose the accused did not
kill the deceased; and you
cannot say he did; there is
not a man among you can say
he did; because you do not
know he did; and you would
be charging him with direct
falsehood at the same time,
which, by every witness called
to that stand, it has been
proved he never uttered. Were
he himself called upon to testify
in any other case, you would
be bound to believe him; then

why not generously extend
the same faith to his declaration
on the present occasion?
—more especially, when I solemnly
repeat, you do not know
to the contrary.

“But perhaps you will
think, or be told, that should
juries take the word of those
they are called upon to try,
there would be no conviction
—which, even if true, has
nothing to do with the case
before us; and, gentlemen of
the Jury, I repeat, this is a
very marked and peculiar
case; and unless looked into
very closely, and one part
considered with another, is
very likely to be misjudged.
Now if you convict the prisoner,
you must reconcile yourselves
with several inconsistencies;
and yet every man is
so far consistent with himself,
that, by knowing his character,
we can form a very correct
idea of what he would do under
known circumstances.

“Gentlemen of the Jury, I
charge you bear this in mind,
and mark what follows!

“It has been proved on trial,
that the accused is a generous,
noble, upright man, who never
uttered a falsehood. Now
mark! He is found with the
murdered man—solemnly protests
his innocency of the deed
—at the same time admitting
that the knife is his own. Is
it through fear of conviction
for murder that he does this?
No! for in that case, with such
evidence against him, he would
have owned up to the deed—
but pleaded that he did it in
the heat of a quarrel—whether
he did or not—and this, you
must admit, would have placed
his case in much better light
than it now stands. Again, if
he were guilty, and stood in
fear of the law—and this,
mark you still! is the only
reason you can have for doubting
the truth of his denial;
would he not have fled when
urged to do so by Nixon,
knowing that he could escape?
Would he, if guilty, have
gone home, and been the first
to break the news to his parents—upsetting
the reason of
his mother with the shocking
intelligence—and there quietly
have waited for the sheriff
to come and take him? Is this
the conduct of a man base
enough to do a murder? and
a premeditated murder at that.
And, at his examination, would
he have refused, if guilty, to
take bail, and be at liberty to
make his escape, instead of
insisting on a trial, like an
honorable man? These are
facts, gentlemen of the Jury,
and strong facts, that must be
duly weighed and considered.
You cannot say it is a case of
conscience—for if so, he would
have acknowledged to the
deed; and yet he denies it;
but denies it in such a way,
mark you! as to make it tell
most against him. How then
are you to reconcile these
facts with his guilt? You
cannot do it.

“But now, gentlemen of the
Jury, I will place the case before
you in such a way that
you can find no inconsistencies.
Let us suppose the accused
innocent of the crime;
and we have as good a right
to suppose that, as the contrary.
Well he comes to the
road, following the deceased,
who was far enough in advance
of him to give another,
if lying in wait, time to do the
deed and escape—so that there
is nothing impossible in this
surmise:—Well, he comes up,
and finds him stretched on the
ground, weltering in his own
blood. He is horrified and bewildered;
and acting on the
impulse of the moment, without
a thought of any serious
consequences, he bends down
to examine him, and finds him
dead—and what is more, his
own knife sticking in the heart
of the deceased—at least he
thinks it is his own knife—
one he had lost—and he naturally
draws it forth to see;
and while examining it, and
wondering how it got there,
he is surprised by Mr. Nixon.
Does not this supposition reconcile
you to the exclamation,
`O, merciful heaven, look here?'
words expressive of astonishment
and horror, but not of
fear nor guilt, nor such as a
guilty man would utter? And
then when Nixon said he
feared such a catastrophe, the
accused, without once thinking
of himself, which he would
have done had he been guilty,
naturally rejoined, `Then you
knew something of it?' and
when the other finally points
to his hands, and the accused,
looking down in wonder, sees
the blood upon them—sees
from that he is himself suspected—and
foresees at the
same time what must follow;
is it not perfectly in keeping
with his innocence, that he
should let the knife fall in
horror, and shriek forth, `Merciful
God! what have I done?'
and declare himself ruined?
Which of us, placed under
the same circumstances, would
not have acted in a manner
similar? He could not say he
killed the deceased in the heat
of passion, because he had not
killed him at all, and it would
be speaking falsely, and he
would not deny the ownership
of the knife, because it
was his own, and this would
be an untruth also. You see,
gentlemen of the Jury, this
supposition—I may say this
reality—destroys all inconsistencies
in the conduct of the
accused, and places him before
you, not only an innocent
but a most high-minded, and
honorable man.

“And now, gentlemen of
the Jury,” proceeded the
learned counsel, “having
shown you the improbabitity
of the fatal deed having been
committed by the accused—
and believing as I do that the
deceased was murdered—I
will state an event that may
tend to fix suspicion in another

quarter, and finally, under
God, lead to a clearing up
of the mystery.”

He then clearly, and in detail,
narrated the circumstance
of Arthur and Ernest finding
a man in the wood where the
murder had been done; what
had passed between them;
how Ernest had abused the
man, and Arthur given him
money; how the stranger had
warned the accused against
his friend; in fact, laid the
whole scene before the jury,
as we have previously done
before the reader.

What had become of this
man, he said, was not known;
but he, at least, with the sole
motive of revenge, might have
laid in wait, day after day;
and finding at last the long
wished-for opportunity, might
have killed the deceased, and,
on hearing some one approach,
might have fled in time to
secrete himself. As to the
knife, he said, he would note
it as a singular coincidence,
that the accused lost it on the
day he saw the stranger, and
saw it not afterwards till he
found it in the heart of the
murdered man; and it was
reasonable to suppose, that
when the accused drew forth
his purse, the knife came out
with it, and, falling on the
ground, had subsequently been
picked up by the stranger.
This he said had not been
proved on the trial, because
there was no one witness to
the fact; but it was a fact,
nevertheless, and as such he
wished the jury to consider it.

He then proceeded to warn
the jury that they could not
be too cautious in receiving
presumptive evidence; and
cited several instances of innocent
persons having been
condemned by this means,
two of whom had actually
been executed for murder, and
afterwards the real authors had
been discovered and brought
to justice.

Having now brought the
minds of the jury and spectators
to the point desired, he
put forth all his energetic and
powerful talent in a strain of
pathetic eloquence never surpassed.
He drew a truthful
picture of the quiet valley of
Walde-Warren, and the happy
home of the accused, ere this
cruel blow, as unexpected as
a thunderbolt from a cloudless
sky, fell upon them, crushing
them to the dust. He drew a
truthful, pathetic, and painful
contrast between the past and
the present; and portrayed the
condition of the family of the
accused—the maniac mother,
the broken-hearted father—in
a manner so affecting, that
there was scarcely a dry eye
in the house.

“And now, gentlemen of
the Jury,” he said in conclusion,
“I am about to close—
about to leave in your hands
the life of a noble young man,
whom, before high heaven, I
believe guiltless of the deed
with which he stands charged

Did I say his life? I should
have said many lives; for on
your decision regarding him,
hangs the fate of many more.
Bear this in mind, I charge
you! and forget not the awful
responsibility you take upon
your souls, if you pronounce
against him! As ye judge, so
shall ye be judged, and if ye
wrongly judge, ye may cry
for mercy and find it not.
Should you be tempted to find
against him, remember the
desolation and wo that will
follow! Think of the maniac
mother, shrieking in anguish
for her first born, and, like
Rachel of old, will not be
comforted, because he is not!
Think upon that kind father,
now sitting there; pale, haggard,
and grown old with sorrow;
his hair made gray by
affliction, not by time; and
behold him sinking under his
new woe to the cold, dreary
grave of the broken-hearted!
Think of that young, innocent,
and lovely maiden—whom,
may heaven bless, for her confiding
trust in him to whom
her heart is given; and remember,
if ye doom the accused,
ye doom her also to a woful
death, and perhaps with her
another fond father and mother!
Think of all these
things, I solemnly charge you!
and remember that ere long,
each and all of you must severally
stand arraigned before the
awful bar of the great Jehovah,
there to be tried and judged
for the deeds done in the body;
and may ye so act in the eventful
present, that you will have
nothing to regret, when the
Recording Angel of God's
High Court shall unroll to your
spiritual view the hand and
heart record of your mortal existence!
May the angel of mercy
be with you in your deliberations,
and heaven aid you to
the right!”

The close of this speech was
greeted with a storm of applause
that shook the building;
and hundreds who, the day
previous, had regarded the
prisoner as guilty, now looked
upon him as a man by far
“more sinned against than sinning.”

The prosecuting attorney
now made a brief reply, telling
the jury not to let the fine,
moving eloquence of his talented
opponent cause them to lose
sight of the facts of the case,
which facts he recapitulated.

This reply concluded, the
Judge proceeded to deliver his
charge to the jury, remarking
with the learned counsel for
defence, that it was a peculiar
case, one involving great consequences,
and one therefore
that should not be hastily decided
upon. He would say
nothing to influence the decision—it
was not his province;
the jury were by law in
this case the judges; and to
lay down the law as a guide
to them, was all he had to do
in the matter. Having done
this, he went over the evidence,
briefly, on both sides; and

concluded by saying, that if,
from the testimony before
them, they conscientiously believed
the accused guilty of
premediated murder, they
could render their verdict accordingly;
but if they had any
doubt in the matter, they were
bound to give that doubt in
favor of the prisoner. “For
it is better that ninety-nine
guilty men should go unpunished,
than that one innocent
man should suffer.”

The Jury now retired, amid
the most intense excitement
among the spectators. It being
about three o'clock in the
afternoon, the court decided to
remain till night, in the hope
of receiving the verdict before
adjournment.

Reader, can you picture to
yourself the feelings of Arthur
and his friends, during
that awful suspense? But we
are privileged to follow the
jury—to hear their deliberations—to
see in what manner
they arrived at their verdict
—and we will do so.