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in his bel.alf ; but society and mankind have the deepest interests at stake. I am the lawyer for society, for mankind, shocked beyond the power of expression, at the scene I have witnessed here of trying a maniac as a malefactor. In this, almost the first of such causes I have ever seen, the last I hope that I shall ever see, I wish that I could perform my duty with more effect. If I suffered myself to look at the volumes of testimony through which I have to pass, to remember my entire want of preparation, the pressure of time, and my wasted strength and energies, I should despair of acquitting myself as you and all good men will hereafter desire that I should have performed so sacred a duty. But in the cause of humanity we are encouraged to hope for Divine assistance where human powers are weak. As you all know, I provided for my way through these trials, neither gold nor silver in my purse, nor scrip; and when I could not think beforehand what I should say, I remembered that it was said to those who had a beneficent commission, that they should take no thought what they should say when brought before the magistrate, for in that same hour it shonld be given them what they should say, and it should not be they who should speak, but the spirit of their Father speaking in them.
You have promised, gentlemen, to be impartial. You will find it more difficult than you have supposed. Our minds are liable to be swayed by temporary influences, and above all, by the influences of masses around us. At every stage of this trial, your attention has been diverted, as it will be hereafter, from the only question which it involves, by the eloquence of the Counsel for the People* reminding you of the slaughter of that helpless and innocent family, and of the danger to which society is exposed by relaxing the rigor of the laws. Indignation against crime, and apprehensions of its recurrence, are elements on which public justice relies for the execution of the law. You must indulge that indignation. You cannot dismiss such apprehensions. You will, in common with your fellow citizens, deplore the destruction of so many precious lives, and sympathize with mourning relations and friends. Such sentiments cannot be censured when operating upon the community at large, but they are deeply to be deplored when they are manifested in the jury box.
Then again a portion of this issue has been tried, imperfectly
# John Van Buren.
tried, unjustly tried, already. A jury of twelve men, you are told, have already rendered their verdict that the prisoner is noro sane. The deference which right-minded men yield to the opinions of others, the timidity which weak men feel in dissenting from others, may tempt you to surrender your own independence. I warn you that that verdict is a reed which will pierce you through and through. That jury was selected without peremptory challenge. Many of the jurors entered the panel with settled opinions that the prisoner was not only guilty of the homicide, but sane, and all might have entertained such opinions for all that the prisoner could do. It was a verdict founded on such evidence as could be hastily collected in a community where it required moral courage to testify for the accused. Testimony was excluded upon frivolous and unjust pretences. The cause was submitted to the jury on the Fourth of July, and under circumstances calculated to convey a malicious and unjust spirit into the jury box. It was a strange celebration. The dawn of the Day of Independence was not greeted with cannon or bells. No lengthened procession was seen in our streets, nor were the voices of orators heard in our public halls. An intense excitement brought a vast multitude here, complaining of the delay and the expense of what was deemed an unnecessary trial, and demanding the sacrifice of a victim who had been spared too long already. Four hours that assemblage was roused and excited by denunciations of the prisoner, and ridicule of his deafness, his ignorance, and his imbecility. Before the jury retired, the court was informed that they were ready to render the verdict required. One juror, however, hesitated. The next day was the Sabbath. The jury were called, and the court remonstrated with the dissentient, and pressed the necessity of a verdict. That juror gave way at last, and the bell which summoned our citizens to church for the evening service, was the signal for the discharge of the jury, because they had agreed. Even thus a legal verdict could not be extorted. The eleven jurors, doubtless under an intimation from the court, compromised with the twelfth, and a verdict was rendered, not in the language of the law, that the prisoner was “not insane," but that he was “sufficiently sane, in mind and memory, to distinguish between right and wrong;" a verdict which implied that the prisoner was at least partially insane, was diseased in other faculties beside the memory, and partially diseased in that, and that, although he had mind and memory to distinguish between right and wrong in the abstract, yet that he had not reason and understanding and will to regulate his conduct according to that distinction; in short, a verdict by which the jury unworthily evaded the question submitted to them, and cast upon the court a responsibility which it had no right to assume, but which it did nevertheless assume, in violation of the law. That twelfth juror was afterward drawn as a juror in this cause, and was challenged by the counsel for the people for partiality to the prisoner, and the challenge was sustained by the court, because, although he had, as the court say, pronounced by his verdict that the prisoner was sane, he then declared that he believed the prisoner insane, and would die in the jury box before. he would render a verdict that he was sane. Last and chief of all objections to that verdict now, it has been neither pleaded nor proved here, and therefore is not in evidence before you. I trust then that you will dismiss to the contempt of mankind that jury and their verdict, which thus equivocated upon law and science, health and disease, crime and innocence.
Again. An inferior standard of intelligence has been set up here as a standard of the negro race, and a false one as a standard of the Asiatic race. This prisoner traces a divided lineage. On the paternal side his ancestry is lost among the tiger hunters on the gold coast of Africa, while his mother constitutes a portion of the small remnant of the Narragansett tribe. Hence it is held that the prisoner's intellect is to be compared with the depreciating standard of the African, and his passions with the violent and ferocious character erroneously imputed to the aborigines. Indications of manifest derangement, or at least of imbecility, approaching to idiocy, are therefore set aside, on the ground that they harmonize with the legitimate but degraded characteristics of the races from which he comes. You, gentlemen, have, or ought to have, lifted up your souls above the bondage of prejudices so narrow and so mean as these. The color of the prisoner's skin, and the form of his features, are not impressed upon the spiritual, immortal mind which works beneath. In spite of human pride, he is still your brother, and mine, in form and color accepted and approved by his Father, and yours, and mine, and bears equally with us the proudest inheritance of our race—the image of our Maker. Hold him then to be a Man. Exact of him all the responsibilities which should be exacted under like circumstances if
he belonged to the Anglo-Saxon race, and make for him all the allowances, and deal with him with all the tenderness which, under like circumstances, you would expect for yourselves.
The prisoner was obliged—no, his counsel were obliged, by law, to aocept the plea of Not Guilty, which the court directed to be entered in his behalf. That plea denies the homicide. If the law had anowed it, we would gladly have admitted all the murders of which the prisoner was accused, and have admitted them to be as unprovoked as they were cruel, and have gone directly before you on the only defence upon which we have insisted, or shall insist, or could insist—that he is irresponsible, because he was and is insane.
We labor, not only under these difficulties, but under the further embarrassment that the plea of insanity is universally suspected. It is the last subterfuge of the guilty, and so is too often abused. But however obnoxious to suspicion this defence is, there have been cases waere it was true; and when true, it is of all pleas the most perfect and complete defence that can be offered in any human tribunal. Our Saviour forgave his judges because “they knew not what they did.” The insane man who has committed a crime, knew not what he did. If this Leirg, dyed with human blood, be insane, you and I, and even the children of your affections, are not more guiltless than he.
Is there reason to indulge a suspicion of fraud here? Look at this stupid, senseiess fool,
almost as inanimate as the clay mouided in the brick-yard, and say, if you dare, that you are afraid of being deceived by him. Look at me. You all know me. Am 1 a man to engage in a conspiracy to deceive you and defraud justice? Look on us aii, for although I began the defence of 1.8 cause alone, thanks to the generosity, to the magnanimity of an enlightened profession, I come out strong in the assistance or counsel never before attached to me in any relation, but strongly grappled to me now, by these new and endearing ties. Is any one of tis a man to be suspected? The testimony is closed. Look through it all. Car suspicion or malice find in it any grourd to accuse us of a plot to set up a false and fabricated defence ? I will give you, gentlemen, a key to every case where insanity has been wrongfully, and yet successfully maintained. Gold, influence, popular favor, popular sympathy, raised that defence, and made it impregnable. But you have never seen a poor, worthless, spiritless, degraded negro like this, acquitted wrongfully. I wish this trial may prove that such an one can be acquitted rightfully. The danger lies here. There is not a WHITE man or While woman who would not have been dismissed long since from the perils of such a prosecution, if it had only been proved that the offender was so ignorant and so brutalized as not to understand that the defence of insanity had been interposed.
If he feign, who has trained the idiot to perform this highest and most difficult of all intellectual achievements? Is it I ? Shakspeare and Cervantes only, of all mankind, have conceived and perfected a counterfeit of insanity. Is it I? Why is not the imposition exposed, to my discomfiture and the prisoner's ruin ? Where was it done? Was it in public, here? Was it in secret, in the jail? His deafened ears could not hear me there unless I were also overheard by other prisoners, by jailers, constables, the sheriff, and a cloud of witnesses. Who has the keys of the jail ? Have I? You have had sheriff, jailer, and the whole police upon the stand. Could none of these witnesses reveal our plot ? Were there none to watch and report the abuse ? When they tell you, or insinuate, gentlemen, that this man has been taught to feign insanity, they discredit themselves, as did the Roman sentinels, who, appointed to guard the sepulchre of our Saviour, said, in excuse of the broken seal, that while they slept men came and rolled away the stone.
I advance towards the merits of the cause. The law which it involves will be found in the case of Kleim, tried for murder in 1844, before Judge Edmonds, of the first circuit, in the city of New York, reported in the Journal of Insanity for January, 1846, at page 261. I read from the report of the judge's charge :
“ He told the Jury that there was no doubt that Kleim had bee' guilty of the killing imputed to him, and that under circumstances of atrocity and deliberation which were calculated to excite in their minds strong feelings of indignation against him. But they must be ware how they permitted such feelings to influence their judgment. They must bear in mind that the object of punishment was not vengeance, but reformation ; not to extort from a man an atonement for the life which he cannot give, but by the terror of the example, to deter others from the like offences, and that nothing was so likely to destroy the public confidence in the administration of criminal justice, as the infliction of its pains upon one whom Heaven has already afflicted with the awful malady of insanity.'
These words deserve to be written in letters of gold upon tablets of marble. Their reason and philosophy are apparent. If you send the lunatic to the gallows, society will be shocked by your inhumanity, and the advocates for the abolition of capital punish