THE 
 
 E 
 
 ORENSIC QPEECHES 
 
 DAVID PAUL BROWN, 
 
 FROM IMPORTANT TRIALS, 
 
 AND EMBRACING 
 
 A PERIOD OF FORTY YEARS. 
 
 EDITED BY HIS SON, 
 
 ROBERT EDEN BROWN. 
 
 PHILADELPHIA: 
 KING & BAIRD, PUBLISHERS, 607 SANSOM STREET. 
 
 MDCCCLXXIII.
 
 Entered according to Act of Congress, in the year 1873, by 
 
 ROBERT EDEN BROWN, 
 In the Office of the Librarian of Congress, at Washington.
 
 EDITOR'S PREFACE. 
 
 THE following collection, or rather selection, of the 
 Forensic Speeches of the late DAVID PAUL BROWN, are 
 now presented to the legal profession and the reading 
 public, in the belief that such a compilation would ap- 
 propriately and acceptably meet the wishes of the many 
 admirers and friends of the deceased. 
 
 Although a volume, possessing the main features of the 
 present one, was in contemplation at the time of Mr. 
 Brown's death, it is a subject of regret to the compiler, 
 which will perhaps be shared by the reader, that the 
 selections embraced in the following pages, were not in 
 any way indicated by the deceased. 
 
 That responsibility, therefore, rests wholly with the 
 Editor and if these selections do not appear always the 
 most worthy of the orator or the reader, the blame 
 should attach where it properly belongs. 
 
 No excuse can be necessary for this self-imposed task ; 
 yet, if one were needed, it might be found in an earnest 
 desire to revive in some degree that love of eloquence 
 which more particularly characterized the earlier days of 
 the Philadelphia Bar, and made the name of a " Phila- 
 delphia Lawyer" proverbially synonymous with the high- 
 est excellencies of the profession. 
 
 It was this desire, combined with a devotion to his 
 
 (iii) 
 
 2083249
 
 IV PREFACE. 
 
 profession, which embraced the whole " Bar " as one 
 united family, that induced Mr. Brown to devote the 
 scanty leisure afforded by professional duties, to the 
 preparation of the "Forum," in the introduction to 
 which he says : 
 
 "I may be permitted in conclusion to say, that my 
 chief motive for engaging in this undertaking, is the 
 desire to furnish some few memorials of the legal profes- 
 sion. If this work be not attempted now;, it never will 
 be. Every hour diminishes oar recollections of by-gone 
 days ; but a few glimpses remain ; and a few short years 
 will obliterate every view and vestige of what, in the pas- 
 sing and changing pageants of life, has been so interest- 
 ing to us all." 
 
 Of the speeches that follow, a word or two of general 
 explanation is due from the Editor. This, he believes, is 
 the only volume of forensic speeches that has ever 
 issued from the American press, and perhaps the only 
 volume in the language, if we except the speeches of 
 Lord Erskine, which are mainly in " State Trials," and 
 consequently of semi-political significance. This fact the 
 Editor adverts to, to show that he has had no guide to 
 direct him in the path he treads, which, to the generous 
 reader, will be ample apology for the many imperfections 
 that a pioneers' labors necessarily exhibit. 
 
 The chief embarrassment, however, which the Editor 
 has experienced, has arisen in determining how far he 
 would be justified in altering in any particular the text 
 of the following speeches. 
 
 A forensic speech, even when it contains the very 
 highest and truest elements of oratorical effect and per- 
 haps for that very reason rarely, if ever exhibits those
 
 PREFACE. V 
 
 merits to the reader. At the same time, the trimming 
 and polishing so necessary in belle-lettre composition, 
 would take from a delivered speech one-half its force in 
 the estimation of the auditor. 
 
 Upon this subject, Mr. Brown himself thus writes, in 
 presenting an extract from the speech of William Lewis, 
 LL. D. : 
 
 " We are aware, that a speech in type is a very differ- 
 ent matter from a speech delivered. If Patrick Henry's 
 fame depended upon the report of his speeches, instead of 
 the effects which they produced, we should be at a loss 
 to conceive how he could have acquired such deathless 
 renown. This difference is attributable to various causes, 
 combining to produce dramatic effect. The court, the 
 jury, the issue, the surrounding populace, the interest of 
 the contending parties and their respective friends, the 
 presence of the bar, the natural excitement of the occa- 
 sion, all tend to impart animation and vigor to a speech, 
 and to confirm the sentiment of Cicero, that ' no man is 
 
 an orator without a multitude.' ' :I " Action, 
 
 which is said to be the essence of oratory, is utterly 
 wanting. The impassioned declamations, the varied 
 tones of the voice, the fixed and penetrating eye, the 
 spirit that displays itself ' from every joint and motive 
 of the body,' are neither to be appreciated nor imagined. 
 To be understood to be felt, they must be seen and 
 heard. Still, as we cannot revive the dead, their past 
 works must speak for them." * 
 
 Every lawyer will recognize the truth of these re- 
 marks, which are here chiefly introduced for the infor- 
 
 * "The Forum," vol. i, pp. 459-60.
 
 VI PREFACE. 
 
 mation of the unprofessional reader, and to explain to all 
 the motives which have induced the Editor to present 
 these speeches as he has found them, fresh, and almost 
 untouched, from the stenographer's notes. 
 
 As it might reasonably be expected, that some bio- 
 graphical memoir of Mr. Brown would accompany this 
 volume, it may be proper to add, in conclusion, that this 
 has intentionally been omitted for several reasons ; the 
 chief of which is the reflection that the filial tie is too 
 close a one to admit of that free and impartial criticism 
 of motives and actions, which it is the duty of the honest 
 biographer, boldly to examine and discuss. 
 
 PHILADELPHIA, June, 1873.
 
 BINNS' CASE. 
 
 COMMONWEALTH OF PENNSYLVANIA v. JOHN BINNS. 
 
 ASSAULT AND BATTERY. 1818. 
 
 This action was brought against the defendant a gen- 
 tleman of very considerable social and political influence 
 on the information of a young girl one of a family of 
 German " Redemptioners," who had lately arrived in the 
 United States. The child prosecutrix, about nine years 
 of age, had been indentured to Mr. Binns, at that time 
 Editor of the Democratic Press, and, upon a suspicion 
 of larceny, had been subjected to severe corporal pun- 
 ishment at the hands of her master. 
 
 The case presents no feature of general interest at this 
 time ; yet the argument is perhaps deserving of its promi- 
 nent place in the following series, as the first forensic 
 effort of its author. 
 
 For the Prosecution. 
 G. M. DALLAS, DAVID PAUL BROWN. 
 
 For the Defence. 
 Jos. R. INGERSOLL, JOSIAH RANDALL.
 
 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 SPEECH IN BIKNS' CASE. 
 
 IN SUBMISSION TO THE COURT, GENTLEMEN OF THE JURY: 
 
 The unusual concourse of spectators and auditors here 
 assembled the interest and anxiety expressed in the 
 countenance of every one the zeal and abilities of tne 
 gentlemen to whom I am opposed the painfully solicit- 
 ous emotions of my own bosom all, refer me to the im- 
 portance of the cause in which I am engaged. Import- 
 ant, not simply as respects this poor child, or me, her 
 humble advocate, but as regards the jury who sit here 
 to decide, as regards your honors who sit there to ad- 
 judge, and as relates to the world. I say it is import- 
 ant in relation to the world, because the principles upon 
 which this case are to be decided are intertwined, I 
 might say identified, with the nearest and dearest feel- 
 ings of the human heart. Impressed with this idea, I 
 cannot but regret the great and manifest embarrassments 
 under which I labor embarrassments not simply arising 
 from my youth and consequent inexperience, but result- 
 ing, in an eminent degree, from the magnitude of the 
 issue in which I am engaged, and the abilities of the 
 gentlemen to whom I am opposed. N"or is this wonder- 
 ful ; for such is the constitution of the human mind, that 
 our very fear frequently occasions that which we fear, 
 and in proportion as we feel ourselves called upon for 
 great exertions, in the same proportion we are frequently 
 compelled to acknowledge an utter inability to obey that 
 call. 
 
 There is also another disadvantage under which I labor
 
 BINNS CASE. 
 
 in common with my professional brethren, and which I 
 beg leave as far as possible to endeavor to remove I 
 mean the prejudice too generally entertained by jurors 
 to whom a case may be submitted, that whatever may 
 be the force or quality of the arguments of counsel, 
 they are still entitled to but little weight, inasmuch as 
 they are the offspring of the pocket, not the heart or 
 in other words, the effect of pecuniary influence, rather 
 than of any inclination to be serviceable to our fellow- 
 creatures. Whether this be just or unjust liberal or 
 illiberal, it is not necessary for me to inquire; but I 
 conceive it to be a duty which I owe to the profession, 
 to my client, to you, and to myself, here, upon the 
 threshold of this case, unreservedly and explicitly to 
 declare that I am no hired advocate ; I appear before 
 you upon this occasion without any other bribe than 
 my sympathies ; without any other object than disin- 
 terested humanity ; without any other motive than im- 
 partial justice. I have no friendship for this poor child, 
 but that which arises from her misfortunes and dis- 
 tresses I have no enmity to Mr. John Binns, but that 
 which arises from his barbarity and cruelty. " Homo 
 sum et humani a me nil alienum puto." This principle is 
 considered a sufficient inducement ; should any excuse be 
 necessary, I trust it will prove a sufficient excuse. 
 
 Having thus endeavored to remove those obstacles or 
 impediments which stood between me and the case, at 
 least so far as they were removable, let us now turn our 
 attention to the more immediate subject of the present 
 controversy. In doing this, however, I cannot, as the 
 opposite counsel have done, with perfect propriety, invoke 
 the political or social importance of my client, in order to 
 give weight to my argument. Alas ! she has neither. I 
 stand here before you not in behalf of a powerful and 
 influential citizen, supported by relatives and surrounded 
 by friends ; I address you in the cause of a helpless, hap- 
 less and unprotected child, torn by the storms of adver-
 
 10 FORENSIC SPEECHES OP DAVID PAUL BROWN. 
 
 sity from the bosom of her parents and her country ; a 
 child whose only safeguard from oppression in this land 
 of strangers, is the verdict of an American Jury ; whose 
 only unshaken hope of reliance is in the Father of the 
 fatherless. This, allow me to say, is no professional cant ; 
 it is the spontaneous effusion of the heart; the sacred 
 voice of sympathy. Indeed, I should abhor myself, could 
 I, upon an occasion like this, where the indignant and 
 impatient soul is struggling for utterance, coolly and 
 deliberately and dispassionately indulge in the vanity of 
 chosen expression. Nature requires not the aid of art, 
 and had you beheld, as I did, the lacerated, mangled, and 
 bleeding limbs of this poor helpless child ; had you seen, 
 as I did, the swollen tear of agony that trembled in her 
 eye ; had you heard, as I did, the sympathetic and im- 
 pressible groan that burst from the assembled multitude 
 in the hall of justice, in contemplating her suffering (that 
 groan which was the unerring testimony that nature bore 
 to the barbarity of this procedure), it would be a wanton 
 and an unpardonable trespass upon your time and that of 
 this honorable court, were I to occupy a single moment of 
 your attention. Nothing, says the poet, can be added to 
 perfection : 
 
 " To gild refined gold, to paint the lily, 
 To throw a perfume on the violet, 
 To smooth the ice, or add another hue 
 Unto the rainbow ; or with a taper light 
 To seek the beauteous eye of heaven to garnish, 
 Is wasteful and ridiculous excess." 
 
 Not less wasteful not less ridiculous were every at- 
 tempt of mine to unfold the horrors of this most horrible 
 transaction. The deed the blushing deed itself, dis- 
 tances every effort of speech, and baffles all attempts at 
 description. The language of man is amply adapted to 
 the common excitements of life ; but weak and cold and 
 callous must be that heart; which, upon occasions like 
 this, does not feel more than the tongue can express.
 
 BINNS' CASE. 11 
 
 This, then, is the character of the case, which the 
 counsel adopting the principles and conduct of their 
 employer have attempted stigmatizing with malice, as 
 they attempted stigmatizing this poor child with theft, 
 and both because they are fatherless.* This is the case 
 which was to have been ridiculed out of court. But it 
 will not do; thank heaven, honest nature is too true 
 to herself either to be laughed into, or out of counte- 
 nance. The smiles that mantled over their features were 
 as superficial as the artifice that gave birth to them ; the 
 heart, I am sure, had no concern in either ; it was a mere * 
 veil, thrown over their wretched cause to conceal its 
 rottenness and deformity. The convulsive laugh of des- ) 
 peration, while tottering on the brink of ruin the hectic 
 glow of health on the cheek of consumption the last 
 cheerful effort of their expiring cause. 
 
 But, gentlemen, let us not wander let us not antici- 
 pate. We owe something, it is true, to feeling, in such a 
 cause; we owe more to reason; but we will, notwithstand- 
 ing, endeavor as calmly and dispassionately as possible 
 to investigate and determine the merits of this discussion. 
 The fact of the beating being admitted, or at any rate 
 proved, beyond the necessity or reach of argument, the 
 remaining facts of the case, appear properly and natur- 
 ally to marshal themselves under these two distinct 
 points of inquiry. 
 
 1st. Was any beating deserved ? 
 
 2d. Was the beating inflicted justifiable? 
 
 If either of these inquiries be negatively decided, the 
 defendant must be convicted. If no beating was de- 
 served; then the weight of a finger in anger, is an assault 
 and battery, and we must have a verdict. Or,if the first 
 part be affirmed, and you should be satisfied that a beat- 
 ing was deserved, still if the beating inflicted was unwar- 
 rantable and unreasonable, all defence must fail. 
 
 * The defendant's counsel moved the court to dismiss the case be- 
 cause there was no prosecutor endorsed on the bill.
 
 12 FORENSIC SPEECHES OP DAVID PAUL BROWN. 
 
 Have the goodness to keep these points in view, neither 
 be driven from them by force, nor seduced by ingenuity. 
 They will serve as guiding stars to your councils. With 
 them you will steer securely to correct conclusions with- 
 out them, you will be launched at once upon the ocean of 
 investigation, without helm or rudder without chart or 
 compass to direct you in your course. 
 
 In relation to the first point, permit -me to observe, that 
 there has been no proof of theft, nor can any be pro- 
 duced. The honest, artless conduct of this poor child, is 
 " all the world to nothing " against this foul and unmer- 
 ited aspersion. They have mangled her body, and with 
 fiend-like vengeance, unsatisfied with that, they now at- 
 tempt stabbing her infant reputation. 
 
 " Spotless reputation, which away, 
 Men are but gilded loam, or painted clay." 
 
 But even this shall not avail them. I pledge myself to 
 furnish you with a clear and fair interpretation of this 
 mysterious transaction. Since the weight of shame must 
 fall somewhere, let broader shoulders bear it. For my 
 part, I have not the shade of a doubt and if you believe 
 the testimony you must concur in the opinionbut that 
 the money was really given to Anna Maria Martin, which 
 she is now charged with having stolen. Do you call for 
 the proof? Do you not see that the story of Benjamin 
 Binns corroborates that of the child in ever} 7 particular 
 except one I mean the gift ; to acknowledge this were 
 ruin. He tells you that Mr. Binns and his lady rode out 
 on Saturday that Anna Maria came for money to pro- 
 vide bread, and that she afterwards came to call him to 
 supper. This is precisely the story of the child ; but she 
 goes further, and says that when she called him to supper, 
 he gave her nine-pence, requesting her afterwards not to 
 reveal it to his brother. And why this desire of conceal- 
 ment? It is easily accounted for when we remember 
 that it is agreed on all hands that Mr. John Binns had
 
 BINNS' CASE. 13 
 
 forbidden his brother to give money to Anna Maria, as it 
 seems he had prior to this time, been in the frequent 
 habit of doing. Of this you must be fully convinced, 
 that upon a candid examination of their respective stories, 
 there is every reason to give credence to that of the child. 
 She had no inducement, she had no power to misrepre- 
 sent from the first to the last, her testimony has been 
 the same; natural, uniform, and consistent; alike free 
 from cunning and constraint. Of his testimony, on the 
 contrary, we may at least say it is suspicious. His con- 
 nection with the defendant, his dependence upon the de- 
 fendant, of necessity have some influence upon his mind ; 
 added to which, having early asserted her guilt to his 
 brother, he dare not deny it now. Having sworn to it 
 before the mayor, he dare not now forswear himself. To 
 bolster up their case as well as possible, and to withdraw 
 your attention from the proper subject of controversy, 
 they have contrived to drag in the countenance of Mr. 
 Benjamin Biuns; I presume, as a sort of rallyiug-point to 
 their defeated hopes. But, gentlemen, this is not a case of 
 countenance, and if it were, their condition is in no wise 
 improved. Come hither Anna Maria Martin, lay off 
 your hat, look at the jury, poor child, though her 
 features are dressed in sorrow, though the joyless tear 
 bedews her sparkling eye, still I may with propriety say, 
 that she suffers nothing in a comparison with Mr. Benja- 
 min Binns, nor any other member of the Binus family 
 that I have hitherto seen. This then is the relative posi- 
 tion of the prosecution and defence. Let us for a moment 
 compare the testimony ; weigh them, the one clearly pre- 
 ponderates, while the other kicks the beam; test them, 
 the one evaporates in air, the other assumes a firmer 
 texture, and lays a closer hold upon the heart ; analyze 
 them, the defendant's testimony dwindles into dross, 
 while that on behalf of the prosecution 
 
 " Like purest gold, that's tortured in tho furnace, 
 Comes forth more bright, and brings forth all its weight."
 
 14 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 The next witness in the order of merit, adduced by the 
 defendant, is Mary Caldwell, who lived with Mr. Binns, 
 when Anna Maria was bound ; and continued living with 
 him a considerable time after. What does she say ? noth- 
 ing to the purpose : " Anna Maria was not very good nor 
 very bad. I believe there were complaints, chiefly from 
 children in the family, with whom she quarrelled and dis- 
 agreed. I often saw her have money, about which she 
 sometimes told different stories. I remember no particu- 
 lar instance. There was no money in places she could get 
 it from. Her character was not good." Hence it seems 
 that Mrs. Caldwell did not entertain the most favorable 
 opinion of this child; and the next inquiry is, what opin- 
 ion shall we entertain of Mrs. Caldwell ? She comes be- 
 fore us perfectly unknown, perfectly unsupported, and for 
 what purpose? Not to testify to the general character of 
 Maria ; not to say what reputation she sustained in the 
 neighborhood, which would afford us an opportunity of 
 refutation, but to declare her individual opinion, and thus 
 to blight the opening prospects of this child, without 
 being able to supply us with a single doubtful virtue from 
 which this opinion may have been derived. This is 
 weaker than air. and lighter than vanity. Probably 
 Anna Maria has quite as unfavorable an opinion of Mrs. 
 Caldwell, and how are their respective merits to be ad- 
 justed ? It was a saying of Agesilaus, the renowned king 
 of Sparta, that " the character of an informer is as neces- 
 sary to be known, as that of the person informed against," 
 and it is a well settled maxim, both in reason and law, 
 " that the character of every one should suffer, in propor- 
 tion to the weight of his character who bears testimony 
 against it." How then, upon these principles, stands the 
 account ? what unquestionable title to belief has the wit- 
 ness produced? "What all powerful and mysterious charm 
 does she possess, that is at the same time to prostrate the 
 characters of others, and yet preserve her own unsullied 
 and unharmed? But I will press this matter no further,
 
 BINNS' CASE. 15 
 
 it is at all times painful to me to derogate in the slightest 
 degree from the reputation of any one, or throw upon them 
 a shade of imputation ; and if upon the present occasion I 
 have violated my general disposition, let the opposite 
 party remember that to them it is to be imputed, and let 
 them also remember, to use the homely but forcible illus- 
 tration of the proverb, that " those persons who live in 
 glass houses should not throw stones." 
 
 The next witness whom you have had examined, is 
 Mrs. Susan West, who occasionally nurses Mrs. Binns. 
 (This lady's testimony read.) Here there are petty child- 
 ish quarrels raked up from all parts of the house from 
 the cellar to the garret, from the kitchen to the parlor, 
 as the materials of a defence. Nothing is too trivial -or 
 minute to escape their attention cleaning the knives and 
 forks is called in to their aid; and even brick-dust itself, 
 is relied upon as giving color to this defence. She was 
 not cleanly in her person ! Have they shown that she 
 was well supplied with raiment ; that the cause was not 
 with the master ; if not, her uncleanliness does not make 
 their case the whiter. In short, the evidence of Mrs. 
 West proves no beating deserved, and if it operates at all, 
 it is unquestionably in our favor. The story of Kelly 
 fifteen years of age the chit-chat of Magdaline thirteen 
 years old ; and the say-so of young Nicholas I consign at 
 once into utter oblivion, as matter of indifference 'or con- 
 tempt. Their representations are probably strictly true, 
 but they have nothing to do with the controversy ; and 
 if they were clearly all untrue, I should pass over them in 
 silence, as my province is to defend not to ruin children; 
 to excuse, not to abuse their errors; to extenuate^ not to ag- 
 gravate their crimes. 
 
 Here ends the elaborate defence ; upon this slender 
 basis, for this is substantially all, you are called upon to 
 acquit the defendant, and destroy this child to justify 
 this barbarity, by charging her with theft. And yet all 
 the charges brought against her unable to speak and
 
 16 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 defend herself, lisping an equivocal, and to her, uncertain 
 language might with just as much probability and proof, 
 be produced against the children of any one of you. 
 
 Leaving you, then, to decide upon this testimony, with- 
 out further remark, upon the course of reflection already 
 suggested, I think you must be perfectly satisfied that no 
 theft has been proven no impropriety of conduct estab- 
 lished against Anna Maria Martin ; and consequently that 
 this beating, was as wanton and undeserved as it was 
 cruel, barbarous, and bloody. 
 
 There is one thing, however, that it may be proper here 
 to observe, and which to me is convincing and conclusive 
 as to the testimony of the innocence of this child, and 
 that is,her resolute refusal to confess her guilt, under the 
 giant arm of her cruel master. Neither fear nor hope 
 could induce it. "My brother denies the gift, confess 
 your crime, acknowledge yourself a thief, come stab your 
 soul, and I will spare your body /" This is, in effect, the 
 exhortation of the tyrant. What is her reply ? "I have 
 told the truth ; your brother cannot deny it ; let him be 
 called let me confront him." Alas, poor child, you 
 rested on a broken reed, when you leaned upon Mr. Ben- 
 jamin Binns when you trusted to the "compunctious 
 visitings" of his conscience. He appears ; again he per- 
 sists in his denial ; and again her infant limbs writhe be- 
 neath the inhuman lash. They may extort groans, but 
 not falsehoods. The flesh shrinks, but the soul still 
 stands firm. Merciful heaven ! can such things be, in a 
 charitable, Christian land ? Despots may exercise their 
 power upon the rebellious or refractory, and thereby pun- 
 ish, and subjugate them to their arbitrary will ; but there 
 is something in the female character there is something 
 in infancy something in feebleness and helplessness, that 
 should palsy or unnerve even a tyrant's arm. " How shall 
 we hope for mercy, rendering none ?" (Great applause.*) 
 
 * Stenographer.
 
 BINNS' CASE. 17 
 
 But to recur to our proposed arrangement. You must 
 be convinced, I say, tha-t the punishment was undeserved 
 and unmanly, and inflicted even without the shadow of a 
 cause ; yet that we may meet the case in every possible 
 aspect, confront it at every point of the compass, and 
 leave them not an inch of ground upon which to plant 
 their defence, let us suppose for a moment, as a matter of 
 argument, what, remember, I unequivocally deny, that 
 this child was guilty of the sin imputed to her, and pro- 
 ceed to the second proposed point of inquiry. 
 
 2d. Was the beating inflicted justifiable? 
 
 You have heard what has been uttered against her, a 
 mere "mouse from a mountain" of malice; you know her 
 fault ; what was the punishment ? Has the defendant 
 produced any testimony that can be relied upon? has 
 he produced a single witness, out of the many who 
 beheld the misery of this child, to testify to his modera- 
 tion ? Not one ! Some of the doctors who saw her 
 several clays after the beating, thought her at that time 
 not " dangerous;" and it is highly probable had they even 
 seen her before, when her back was covered with welts, 
 and perfectly discolored with extravasated blood, they 
 might have entertained precisely the same opinion. But 
 the danger is not the criterion of moderation ; had she 
 been perfectly flayed alive; had, as was supposed by one 
 of the witnesses, a red hot gridiron been applied to her 
 back, it might not in the view of those gentlemen have 
 been dangerous ; but I am certain it would have been 
 brutal ; I am certain it would have been barbarous ; I 
 am certain it would never have received the countenance 
 or sanction of a benevolent and humane American jury. 
 
 Far be it from me to impute any natural hardness of 
 heart to those medical gentlemen ; but we all know the 
 duties of their profession ; we have all felt the force of 
 habit and familiarity, and perhaps it is not venturing too 
 much to say, that men who have spent a considerable 
 part of their lives in the slaughter-house of their species, 
 
 2
 
 18 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 surrounded by all the imagery of death and disaster, are 
 at least, not those whose opinion- should govern in the 
 construction of this case. If a doctor were called upon 
 to define a "battery", he would no doubt consider it the 
 loss or injury of some vital part of the human frame; 
 whereas in certain circumstances, this would be down- 
 right murder. A lawyer, however, will tell you that 
 laying a finger improperly upon another, constitutes a 
 battery. On the other hand, a lawyer who saw the 
 operation incident to the extirpation of an eye, a fracture 
 of the skull, or a dislocation of the limbs, would pn> 
 nounce them all terrible calamities ; yet a surgeon would 
 tell you, with a face of perfect composure, with heart of 
 stone, and nerves of steel, that these are common-place 
 occurrences, mere trivial matters unattended by much 
 danger, and whisk you through the whole anatomy of 
 the human system and catalogue of physical ills, with as 
 much self-complacency and good humor, as he would 
 lead his partner down a dance. Let us shun both 
 extremes. I ask you to decide this case neither by the 
 technical absurdities of the one, nor refined barbarities of 
 the other. " Medio tutissimus ibis," the middle course is 
 safest. "Let then the testimony of your unbiassed and 
 unperverted fellow-citizens govern your deliberations; 
 they who know that a fellow creature may be injured 
 and still retain his head upon his shoulders ; and yet at 
 the same time do not carry this belief to such an extreme 
 as to lead them to consider the wind of the fist as an 
 absolute assault. 
 
 But, gentlemen, I pledge myself to show you that the 
 evidence of even the doctors themselves, and particularly 
 that of Dr. Cullen, inimical, as it intentionally was, to the 
 cause that I espouse, is for the most part illusory, falla- 
 cious, and unfounded. Dr. Cullen tells you that he 
 received a note from Mr. John Binns, requesting him in 
 company with Dr. Griffiths, to call upon Anna Maria 
 Martin, to examine her back, and afford any medical or
 
 CASE. 19 
 
 surgical aid that might be required. Is not tliis a proof 
 that Binns himself thought the child materially injured? 
 why talk of medical and surgical assistance? why send 
 TWO learned members of the faculty ? was not one suffi- 
 cient ? or did he believe the case to be so desperate as to 
 require consultation ? I leave you to divine his thoughts 
 and his motives, while I proceed to my anatomical and 
 physiological inquiries. (Reads the testimony.) 
 
 " There was," says Dr. Cullen, " no swelling at the time 
 of examination, though the flesh was still discolored." 
 Xow, gentlemen, I do not, as the doctor does, pretend to 
 be a complete surgeon or anatomist, yet those branches 
 of medical science formed one of the pastimes of my youth, 
 and although I never wrote a treatise, although I never 
 committed one to memory, although I never had occa- 
 sion to appear in the capacity of a physician before a court 
 and jury in behalf of a friend, and although I never in- 
 structed counsel to ask me questions calculated to elicit 
 my knowledge and conceal my ignorance, yet I will en- 
 deavor to rescue so much of my reading from the grasp 
 of forgetfulness, as may enable me briefly, but I trust sat- 
 isfactorily, to answer the medical hypotheses (they de- 
 serve no better name), which have beeu forced upon our 
 attention. In the first place then, the want of swelling 
 at the time of examination, as was asserted by the doc- 
 tors, was a conclusive proof of the want of severity! This 
 I deny ; and I throw myself with confidence upon your 
 own knowledge to support the denial. I refer you to 
 that book, which lies open before you all, as a refutation 
 of such doctrine I mean the book of experience. You 
 have all no doubt observed, in cases of children, where 
 they have received any very severe contusions and bruises, 
 in consequence of falls, that the swelling subsides and the 
 extravasated blood is completely absorbed in the course 
 of a very few days. The absorbents in children, particu- 
 larly in those of a vigorous constitution, arc extremely 
 powerful, and will take up large quantities of extrava-
 
 20 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 sated blood in a short time; and will, indeed, remove many 
 other obstructions to a healthy and free exercise of the 
 animal functions, such as decayed bones, &c. These ab- 
 sorbents are certain vessels connected with the internal 
 skin or cutus vera, by means of the cellular membrane, 
 and are wisely provided by nature to supply or remedy 
 the defects or injuries of the veins ; as when, for instance, 
 the blood-vessels or veins are ruptured by extreme vio- 
 lence, and are so impaired as to prevent their returning 
 the blood to the heart, here the absorbent powers inter- 
 fere, assist the wounded vein, and thus prevent mortifica- 
 tion or suppuration, which must otherwise inevitably 
 ensue. 
 
 The doctors also stated, that the bruised parts bore 
 compressing and rubbing without any symptoms of pain, 
 and this fact appeared to afford matter of considerable 
 exultation to the opposite counsel. But, gentlemen, I 
 defy them, had they ransacked all the stores of their in- 
 vention, to have produced a circumstance which would 
 militate more strongly against themselves. Why, the 
 answer is plain the parts were DEAD. The violence of 
 the beating had in some measure, at any rate, destroyed 
 their vitality ; this is therefore a proof of the severity, not 
 the mildness of the punishment. 
 
 But they say " there was no laceration or breaking 
 of the outside skin, and consequently no blood." The 
 doctrine of outside and inside, of external and internal 
 skin, upon which the doctors have dwelt with so much 
 emphasis, although by no means obscure itself, has been 
 so wrapped up in technical mysteries, as to require some 
 slight elucidation ; and as Dr. Cullen has taken some 
 liberties with the Common Law, he must in turn indulge 
 me with a few strictures upon this part of his admirable 
 thesis. The outside or visible skin is known by the name 
 of cuticle, epidermis, or scarf; and I presume is what is 
 vulgarly denominated " the scurf ;" as when the hand is 
 grazed roughly by any hard substance we might say the
 
 BINNS' CASE. 21 
 
 scurf is merely rubbed off. This skin is perfectly insen- 
 sible, and serves as a sort of protection or coat to the in- 
 side skin, which is highly sensible. It is to mankind 
 what scales are to a fish, so that you may break the out- 
 side skin or cutus vera, or true skin, without destroying 
 or removing the scarf or scales, which form an integu- 
 ment sufficiently close and firm to prevent the emission 
 of blood ; you may completely crush a fish without dis- 
 composing a single scale. 
 
 So far, then, from the blood's failing to flow, being an 
 argument for the defendant, it is subservient to the prose- 
 cution. The internal skin, I have shown you, may be 
 broken without breaking the external skin ; and if this 
 take place, the contusion is much more dangerous than 
 in cases of an incised wound, where nature is relieved in 
 a great measure without the tardy and painful process of 
 absorption. But, says Dr. Cooper,* " I do not believe the 
 scarf skin can be broken without the flowing of blood." 
 With great reverence and respect for the doctor, I must 
 be allowed to dispute this ; nay, I will go further, and 
 broadly assert, that the scarf and the true skin may both 
 be broken and still no blood emitted. As to the scarf, 
 you have often seen it rubbed off without the issuing of 
 any blood, and it therefore requires no reasoning from 
 me. In respect to the true skin, I say with perfect con- 
 fidence, that although the slightest puncture will be fol- 
 lowed by Wood, yet when the wound is extremely severe, 
 and the parts are very much bruised, the channels of the 
 blood become choked and there is little or no bleediuo-. 
 
 o 
 
 As in the case related in Chesseldenf of the unfortunate 
 miller whose arm was torn off by the cog-wheel of a mill, 
 and also in a case cited by Dr. Physick in his admirable 
 lecture, of a similar accident happening to a boy : in both 
 of which instances, though one of the most material ar- 
 teries in the human system was completely severed, yet 
 
 * Dorsey's Cooper, p. 63. 
 
 f Chesselden's Anatomy, p. 321.
 
 22 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 scarcely sufficient blood issued from the wounded body to 
 stain the linen that was bandaged around it. Go into the 
 field of battle, examine the victims of war, many of them 
 almost entirely dismembered, yet struggling in the grasp 
 of death for days their arms, their legs torn away why 
 is this? the current of life may be exhausted in a single 
 hour, why then this lingering ? because the vitality of 
 the parts is so destroyed as to prevent the exercise of 
 their function ; and bence the hopeless invalid is for some 
 time subjected to the horrors of a living death. So much 
 for the theory of Dr. Cooper; it has no foundation in 
 fact. As to the case of the dead man's mark, or the 
 appearance upon the skin of spots resembling iron mould, 
 which Dr. Cullen has adverted to, in illustration of his 
 theory of absorption and extravasation, I will venture 
 to assert that both the name and nature ascribed to them 
 are equally unknown to the medical world. Those spots 
 are not the effect of extravasated blood, but probably 
 arise from the serum, one of the constituents of the 
 blood, oozing through the veins. The case of Mrs. G.'s 
 child was also unfortunately alluded to by the doctor in 
 explanation of his -enigmas. "What I shall we suffer him 
 to tell us that the mark on the back of an infant arising 
 from a slight blow of the mother's hand, is an extravasa- 
 tion of blood. 'Tis silly, 'tis preposterous in the extreme ; 
 every child-nurse knows better ; why, according to the 
 gentleman's notion, every hectic glow of the blood 
 every fever every blush that mantles on a lady's cheek, 
 is an extravasation. But cast your eyes upon the resplen- 
 dent pages of Darwin and of Brown, of Rush and of 
 Physick, and this misty error is at once dispelled. They 
 will tell you that the discoloration is the effect not of 
 ruptured vessels but of too .much excitement ; not of 
 blood being forced out of its natural channels, but of its 
 being propelled through these channels with unusual 
 violence. Feel the pulse during a fever ; it will be found 
 much fuller and stronger than usual, and the same obser-
 
 BINNS' CASE. 23 
 
 vation will apply equally well in relation to a blush. 
 Hope, shame, anger, anxiety, almost any sudden emo- 
 tion of the mind will so affect the physical system, as 
 to throw unusual quantities of blood in the veins, and 
 thus of consequence, increase the pulse and flush the fea- 
 tures ; but no man but the learned doctor, I am sure, 
 ever dreamt of this being an extravasation. A single 
 remark and I bid farewell, a long farewell, to physic. 
 
 I have been really astonished and disgusted, to discover 
 so much madness in the sequel of that story, whose pre- 
 face promised so much wisdom. To leave now this medi. 
 cal jargon, which is as inconsistent with itself as with 
 reason, " and fall somewhat into a slower method ;" what 
 say your unbiassed and unperverted fellow-citizens? 
 
 Mrs. Maria Welsh tells you. that the beating was ex- 
 tremely severe, from the shoulders down to the waist. 
 Upon inquiring the cause, the child told precisely the 
 same story as that related in court. 
 
 What says Mrs. Brown ? "A most cruel beating ! " 
 What says Mrs. Burrows ? " The child's back exhibited 
 the most awful spectacle I ever beheld ; no welts could be 
 distinguished ; it was one entire bruise ; it resembled 
 beef's liver; the blood seemed just ready to start from 
 the skin." What says Dr. Frick ? What says his Honor 
 the Mayor, a man who for many years held the highest 
 and most responsible station of your city as a magistrate 
 and guardian", and who has discharged his various- and 
 arduous duties with credit to himself and advantage to 
 the community? He tells you that never in the exercise 
 of his functions, either in his office or in the court, has 
 he beheld so severe a beating on so young a child. It is 
 unnecessary for me to indulge in a more minute recapitu- 
 lation of the testimony. To advert to it is, I trust, in 
 itself, sufficient to destroy all the wire-drawn notions, and 
 burst all the airy bubbles, that may be blown upon the 
 case. 
 
 After such conclusive evidence, can any man seriously
 
 24 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 listen for a moment to a labored argument professing to 
 show that such beating as this is justifiable, either " in 
 foro conscientia" or " in foro humano" in the sight of 
 God, or in the sight of man ? If the child was guilty, 
 which I deny ; her guilt would not have authorized such 
 gross inhumanity. If the laws were violated ; they stand 
 their own avengers. Let her be charged with larceny 
 let her be indicted and arraigned. This respectable jury 
 shall try, and this honorable court shall pronounce 
 upon her crime ; but, thank Heaven, no man not the 
 Governor of the State, not the President of the United 
 States ; nay, not even John Binns himself, can discharge 
 in this free and happy land, the four-fold office of witness, 
 juror, judge and executioner. 
 
 In the capacity of a master, I admit he had the author- 
 ity of the law, in inflicting moderate chastisement for 
 salutary, not vindictive purposes. This is a right pos- 
 sessed by all persons standing in the relation of husband, 
 father, teacher, captain and master, and which may be 
 exercised on their wives, children, pupils, sailors and ser- 
 vants. But " in the name of all the gods at once," what 
 possible operation is the admission of this abstract principle 
 to have upon the present controversy ? In order that they 
 may enjoy its protection they must bring themselves 
 within its provision. Moderation is essential to justifi- 
 cation ; for at the very last session of the court a school- 
 master was convicted for an assault and battery upon a 
 scholar, because he had exceeded the limits of propriety 
 in punishment. Indictments and convictions of captains 
 for abuse of sailors are frequent, notwithstanding the 
 rope's end privilege ; and but a few days since a client 
 of mine was deservedly condemned and sentenced to im- 
 prisonment, merely for giving his wife a single blow, 
 though in my opinion, sex aside, she merited a dozen. 
 
 To sum up all, then, we say that in our case any pun- 
 ishment, however slight, would have been unwarrantable, 
 and an assault and battery, because there was no offence ;
 
 BINNS' CASE. 25 
 
 and we say further, that the blackest and most heinous 
 offence would have been no justification for a beating so 
 severe. 
 
 I have now done my part, feebly and imperfectly, I 
 must acknowledge, but as fully as my feelings and inex- 
 perience would permit. It remains for you to do yours. 
 The worldly destinies of this poor child are now in your 
 hands. Her character and her cause are with you ; you 
 may stigmatize her with dishonor and dishonesty, or 
 wash her white as snow ; you may either cast her like a 
 loathsome weed from the bosom of society, or exhibit her 
 as an example of suffering innocence to the philanthropic 
 and humane. Added to this, you are to-day to declare 
 whether mingled tears and blood are subjects of commise- 
 ration with an American jury. Whether .domestic ty- 
 rants are to trample with impunity upon the helpless 
 victim whom misfortune or distress may have placed at 
 their feet. "Whether your own children, or the children 
 of your friends of your fellow-citizens of your fellow- 
 creatures (for who shall control the fickle smiles of for- 
 tune ?) should they be reduced to the miserable situation 
 of this poor child, helpless, hapless and forlorn should 
 they be sundered from your fostering and protecting 
 arms, and subjected to the merciless and iron despotism 
 of men like the defendant which 'heaven forbid ! you 
 are, I say, now to declare, if such were their sad lot, 
 whether they should pour forth their infant lives in irre- 
 mediable distress, or look forward to your verdict and 
 the records of this court, as the heralds which proclaim 
 their deliverance at hand. I invoke you, then, by that 
 holy tie which subsists between parent and child; 
 by the sacred rites of hospitality; by the immutable 
 principles of justice, to redress the injuries of this in- 
 jured, friendless, stranger child. Will you hereafter 
 dare to come into this court when your own children 
 are abused, and claim the intervention of the law, and 
 yet refuse it to this friendless girl? Why, your own
 
 26 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 verdict shall be cast into your teeth; "even-handed justice 
 shall return the poisoned chalice to your own lips ;" and 
 the opposing counsel shall tauntingly exclaim, " What ! 
 are you, whose flinty hearts resisted the tears and blood 
 of the oppressed ; are you, who sanctioned unparalleled 
 severity in the case of Anna Maria Martin, the friendless 
 German child ; are you, so peculiarly sensitive and alive 
 when your own flesh and blood are concerned ? AWAY 
 WITH YOU ! " Never, until you obliterate from the pages 
 of that book, by tears of penitence, the record of this 
 day's error of this day's WRONG, can you expect an at- 
 tentive ear to the story of your own griefs. REMEMBER 
 THIS. And, above all, remember " with what judgment 
 ye judge, 3-6 shall be judged : and with what measure ye 
 mete, it shall be measured to you again." 
 
 VERDICT: GUILTY.
 
 JUDGE PORTER'S CASE. 
 
 THE IMPEACHMENT OF JUDGE PORTER, BEFORE THE SENATE 
 OF PENNSYLVANIA, 1825. 
 
 INTRODUCTION. 
 
 The argument in this case, though not strictly em- 
 braced by the .title of " Forensic Speeches," the Editor has 
 thought proper to introduce here as calculated to show 
 the rapidity with which Mr. Brown rose in popular 
 estimation; and the mark which he even at this early 
 day in his professional career made upon those high in 
 position and influence. It appears and we are indebted 
 to the Hon. Wm. A. Porter for the statement that in 
 the year 1822 Mr. Brown, with Mr. Hayes, was engaged 
 in a very important case before Judge Porter (a brother 
 of the late Governor Porter), at Reading, Pa., in which 
 they were opposed by James Buchanan, subsequently 
 President of the United States, Mr, Bai'rd, Mr. Biddle, 
 Mr. Dayton, Mr. Frederick Smith and Mr. Charles Smith, 
 the latter afterwards Judge of the Supreme Court. Al- 
 though quite a young man and naturally impressed with 
 the matured talents and character of those opposed to 
 him Mr. Brown conducted his cause in such a manner, 
 as to produce upon the mind of the Judge before whom 
 it was argued so strong an effect ; that when, some two 
 years afterwards, articles of accusation and impeachment 
 placed him in the position of a defendant, he at once 
 secured Mr. Brown's professional assistance. 
 
 The trial of Judge Porter was fixed for " Tuesday, De- 
 cember 13th, 1825,^' when the Articles of Impeachment 
 were read, and the respondent's answers filed; but, in con- 
 sequence of the absence of witnesses in support of the 
 impeachment, and other technical grounds of delay, the 
 
 (27)
 
 28 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 / 
 
 trial was not fairly entered upon until December 21st, 
 1825. 
 
 There were twelve Articles of Impeachment investiga- 
 ted, which occupied ten days; when, by an almost unani- 
 mous vote of the members of the court, Judge Porter was 
 most honorably acquitted, December 31st, 1825. 
 
 As the introduction of the several articles of Impeach- 
 ment with the respondent's answers, would occupy more 
 space than is consistent with the prescribed limits of 
 this volume; and as an attempted condensation of them 
 would require scarcely less space ; the Editor, by way of 
 presenting the main features of this investigation, takes 
 the opportunity of offering Mr. Brown's " Opening 
 Speech," which, at the same time, will elucidate the 
 points in controversy, and give a specimen (the only one 
 contained in this volume) of his style in the original pre- 
 sentation of a case. 
 
 For the Managers. 
 SAMUEL DOUGLASS, ESQ. 
 
 For the Respondent. 
 DAVID PAUL BROWN.
 
 IMPEACHMENT OF JUDGE PORTER. 29 
 
 OPENING SPEECH 
 IN DEFENCE OF JUDGE PORTER 
 
 MR. PRESIDENT AND GENTLEMEN 
 
 OF THIS HONORABLE COURT: 
 
 The evidence on the part of the prosecution being 
 closed, it becomes my duty, representing as I do the hon- 
 orable respondent, to submit ^to you the grounds upon/ 
 which, he will rely for his defence, if a defence can be 
 required in a case like the present, where the attack is 
 in itself suicidal. In doing this I should act in entire 
 accordance with precedent and example, were I to in- 
 dulge in argumentative remarks, in connection with a 
 detail of facts which the testimony will amply supply. 
 But it is my intention, as far as may be compatible with 
 the discharge of my duty, rigidly to consult the time and 
 convenience of this distinguished court, asking only in 
 requital a patient and attentive hearing. It is a subject 
 of unfeigned regret that the honorable managers should 
 have been unable, with all the indulgence which has been 
 extended to them in the prosecution of this complaint, to 
 submit the evidence in the order of the charges ; and thus 
 to impart to them, by method and arrangement, a per- 
 specuity which, under existing circumstances, is solicited, 
 and sought for, in vain. Philosophy, however, teaches us 
 not to increase our griefs by the expression of unavailing 
 regret; but rather to relieve, by boldly confronting them. 
 The respondent, who from the earliest age has enjoyed 
 the confidence of the government; and whose fair fame 
 the breath of calumny has not dared to taint, stands now
 
 30 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 arraigned before you upon charges of a highly criminal 
 character ; not by the House of Representatives ; not by 
 the people of Pennsylvania ; but, as I will show you, by 
 individuals to name even some of whom would be to fail 
 in the respect which I owe to this honorable court and to 
 myself. As, however, he has served the State with fidel- 
 ity in every situation to which he has been called, and 
 particularly in the discharge of his judicial functions, he 
 is as faithfully prepared to render an account of his stew- 
 ardship; and not only to vindicate himself from all un- 
 merited assertions, but to vindicate the source whence his 
 authority is derived. Allow me, Mr. President, with a 
 view to this object, to call your attention generally to 
 the charges preferred, in order that we may be the more 
 fully comprehended, in the introduction of the defence. 
 The evil must be known ere the remedy can be applied ; 
 the character of the poison must be ascertained, before 
 we can hope for an antidote. 
 
 The charges in their nature somewhat resemble indict- 
 ments, or counts in indictments ; certain facts are set 
 forth from which certain deductions or inferences are 
 drawn. 
 
 The first of these charges against the respondent, is for 
 corruptly denying a citizen the right to have justice ad- 
 ministered, without sale, denial or delay. 
 
 The second, for violating the personal liberty of the 
 citizen, degrading the character of the court, and bring- 
 ing the authority of the laws into contempt. 
 
 The third, for attempting to suppress and compound a 
 felony to screen the guilty from justice; and endeavoring 
 to induce a judicial officer to commit a misdemeanor in 
 office. 
 
 The fourth, for allowing a prisoner charged with lar- 
 ceny to purchase his acquittal. 
 
 The fifth, for evincing disgraceful passions and partiali- 
 ties, denying justice and bringing the administration of 
 it into contempt.
 
 IMPEACHMENT OF JUDGE PORTER. 31 
 
 The sixth, for wilfully and illegally obstructing the 
 rights of the parties. 
 
 The seventh, for refusing and neglecting to file his 
 opinions in writing. 
 
 The eighth, for unlawfully altering the valuation of 
 property, on which the assessment of road tax was made. 
 
 The ninth, tenth, and eleventh, are but specifications 
 of the twelfth article, which charges the respondent with 
 contemptuous conduct towards his associate. 
 
 These imputed offences must depend upon the specifi- 
 cations contained in the charges. We say they are 
 wholly unsupported by the facts set forth in the articles ; 
 by the facts proved ; or by the implication of law aris- 
 ing from either or both. And it is necessary to sustain 
 this prosecution, that the conclusions as well as the premi- 
 ses should be established by proof. The prosecution how- 
 ever have asked you, that if the facts should be proved, 
 you should pass upon them ; although they may not sup- 
 port the conclusion drawn from them in these accusa- 
 tions. But let us not anticipate the defence. 
 
 These are the charges in the general ; in their details 
 some of them are too odious, some of them too ridicu- 
 lous, and all of them too worthless, to be entitled to a 
 serious reply. But before this highly honorable court, 
 composed of men of character, and who therefore may 
 fairly be presumed to know the value of character that 
 jewel of the soul, which when once lost never can be re- 
 gained in its original lustre before such men, I say, the 
 respondent is willing to lay open th,e whole volume of 
 his life, and to expose all its blots and its erasures. Per- 
 fection in man is not to be expected, as it never has been 
 and never can be attained ; but so far as regards purity 
 of motive, and an honest exercise of those intellectual 
 faculties, which the GOD of nature gave him ; and which 
 should therefore be a subject of gratitude rather than 
 boast so far, through me, he challenges the strictest and 
 severest ordeal. Prior to entering upon our answer to
 
 32 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 those charges, to which I have thus generally adverted, 
 I must be permitted to observe,that there is one difficulty 
 which we would most sincerely deprecate on this occa- 
 sion ; arising from the indefinite character of some of the 
 charges, and the remoteness of time to which they relate. 
 But however embarrassing those circumstances might 
 prove against the wicked or the weak, they have no 
 terrors for us. We are so strongly armed in honesty, that 
 we defy the confederated powers of darkness (at least be- 
 fore this judicious and enlightened tribunal), to cast upon 
 the respondent a shadow of suspicion of moral or official 
 impropriety. That he may have failings we shall not 
 deny ; it is the lot of man. That he may have fre- 
 quently erred, it is not necessary to dispute ; it is the 
 privilege of nature, and by nature it shall be excused if 
 it cannot be justified. In addition to the difficulty, thus 
 merely intimated, there is another : I refer to the manner 
 in which the testimony for the prosecution has been in- 
 troduced, and the frequent interlocutory appeals on the 
 part of the honorable managers. Turn to your notes, 
 Mr. President, and you will perceive, that in the intro- 
 duction of this testimony I say not from what cause 
 no order has been consulted, except the order of inverse 
 proportion ; no consistency regarded, no legal propriety 
 respected ; but all matters have been heterogeneously 
 jumbled together in an inextricable and interminable 
 chaos, from which nothing but divine inspiration which 
 I may be permitted to say, has not been sufficiently con- 
 sulted by our adversaries in the institution of these pro- 
 ceedings can possibly redeem them. Light may, it is 
 true, issue from darkness ; order may spring from confu- 
 sion ; but the light that shall shine on the darkness of 
 guilt, would serve only to expose its horrors and deformi- 
 ties ; and the order that springs from confusion, is calcu- 
 lated to unfold that which was intended to be concealed. 
 There is still another circumstance of embarrassment in 
 this matter, although I admit it is scarcely a 'subject of
 
 IMPEACHMENT OF JUDGE PORTER. 33 
 
 complaint, inasmuch as it naturally arises from the situa- 
 tion of the respondent. I mean the fact of those persons 
 who are arrayed against him, having in the matters to 
 which their testimony mainly refers, been the losing 
 parties ; or at least having their professional feelings 
 wounded, by unsuccessful professional efforts. This, I 
 say, is natural, but it is not the less to be regretted in 
 its operation on this cause. Like the wife of the great 
 Julius, the motives of testimony should not only be spot- 
 less as for the most part, I heartily believe upon this 
 occasion they are but they should be exempt from the 
 taint of suspicion. Man, in his best estate is fallible ; 
 reason is weak ; and passion powerful ; and it requires 
 no ghost come from the grave to tell us, which is to be 
 the subsidiary of the other. "We all know that it is no 
 easy matter for counsel themselves, even in their best 
 efforts, to satisfy the desires of their clients, where those 
 efforts prove unsuccessful and it is certainly still less 
 to be supposed that a judge however impartial, or a jury 
 however just, whose duty it is to determine between con- 
 flicting parties, can afford satisfaction to both. Judges 
 tj^erefore have only to satisfy the dictates of their own 
 hearts, and whatever may be their penalties and suffer- 
 ings, the consciousness of unerring moral rectitude shall 
 bear them through them all. 
 
 O 
 
 Having adverted to the difficulty encountered from the 
 cause and character of the prosecution's testimony, I will 
 now call your attention to the remarks of the counsel in 
 his opening, and then conclude by submitting to you a 
 general outline of our defence ; reserving it for the testi- 
 mony, as connected with our answers to the charges, to 
 supply the lights and shades, and more particular features 
 of the cause. 
 
 It is said, and although not exactly compatible with 
 the character of an opening, I deem it my duty to refer 
 to it ; as, if proper to be asserted, it is worthy of notice 
 in reply; that sufficient time has not been afforded to the 
 
 3
 
 34 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 honorable managers and their counsel for that elaborate 
 preparation,which, according to his yiews,the case appears 
 to require. No! Why not? Have we not had adjourn- 
 ment upon adjournment for the accommodation of the 
 gentlemen? Were not these charges preferred twelve 
 months ago, against the honorable respondent? And 
 were not the seeds of this iniquitous harvest, sown as 
 appears by the proof nearly nine years since, by some of 
 the prosecutors ? And still is it not ripe ? But I agree 
 with the gentleman ; notwithstanding all this, the time 
 allotted them has been insufficient. But it is not the 
 fault of the Senate it is the fault of the CAUSE. 
 
 Will they ask time to reanimate the dead to impart 
 the rose of health to the wan cheek of consumption ? to 
 cause the tottering and feeble limbs of age to knit with 
 strength, and feel a second youth? In short to do any- 
 thing most hopeless and impossible? Why then they 
 may crave time to give shape and strength, and form, 
 and feature, to this ricketty and misbegotten offspring of 
 malice and persecution. 
 
 It is said too by the counsel, I quote his very language, 
 that " this trial has been urged with very considerable 
 strictness." Who talks of urgency and strictness? Does 
 the respondent ? Dragged from his peaceful fireside 
 from the bosom of an affectionate and endearing family 
 in a word, from his domestic gods; not loaded with 
 chains, it is true, like a common malefactor, but with 
 worse, an imputation of crime Does he complain of 
 strictness of urgency of severity ? No ! It is his ac- 
 cusers. Those who have thus brought him hither. 
 
 o 
 
 Thus much I owed to the vindication of this honorable 
 court to the dignity and justice of the commonwealth. 
 
 The counsel has also thought proper to speak of his 
 candor and impartiality. Alas ! with him it was but a 
 barren and a fruitless theme. For my part I profess no 
 impartiality upon such an occasion. I cannot sir, I 
 cannot be impartial when I behold an aged servant of the
 
 IMPEACHMENT OF JUDGE PORTER. 35 
 
 commonwealth buffeting the hillows of adversity, and 
 confronting the storm ; not for his life, his country shall 
 have that, but for the preservation of the pearl of great 
 price, his jewelled reputation ; without which life is a bur- 
 then, and the world a waste. I say in contemplating 
 such a scene I cannot be impartial. Nay, more, I never 
 shall envy the feelings of that man, who can patiently 
 behold a struggle so glorious as this and in the consci- 
 
 f oo c^ 
 
 ousness of his own self-security cant coldly of the sub- 
 lime virtue of inflexible impartiality. 
 
 But, sir, to return to the facts of the case. 
 
 In explanation of the defence: the lucidness, ability 
 and accuracy, with which the facts connected with this 
 case, are detailed in the answers to the charges, read to 
 you on behalf of the respondent, have left me but little 
 to say. 
 
 The first article charged, relates to the circumstances 
 attending the case of Seitzinger v. Zeller, in the Common 
 Pleas of Berks county. We shall explain and qualify 
 certain parts of this article. We will show that Judge 
 Porter was obliged to preside, in consequence of the affi- 
 nity of one of his associates to one of the -parties in- 
 terested. That Judge Witman was a relative to Daniel 
 
 o 
 
 H. Otto, one of the creditors of Zeller. We shall show 
 you that Marks J. Biddle, Esq., is in error, as to more 
 than one circumstance, in that case. That he never dis- 
 cussed the case before the referee, as he has stated he did. 
 That he did not ask the judge to retire, or say anything 
 from which it could be inferred he did not wish him to 
 sit. That at least, if he did make the observation to 
 which he has testified, Judge Porter, did not hear it. 
 That it was not heard by either Judge Witman or Judge 
 Snyder, who were on the bench ; by Mr. Smith or Mr. 
 Hayes, who were concerned in the cause, and were at the 
 council table at the time ; or by Gen. Addams, the Pro- 
 thonotar}'-, who sat at his desk between Mr. Biddle and 
 Judge Porter. But even if the observation had been
 
 36 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 heard by Judge Porter, I by no means admit that he was 
 bound to retire on Mr. Biddle's request. 
 
 In regard to the second article, relative to the lecture 
 given to the gambling-house keepers Beidleman, Young 
 and Haberacker, at Allentown ; we shall adduce but lit- 
 tle evidence, because the facts alleged, with one or two 
 exceptions, are admitted. We will prove very conclu- 
 sively that the words "villains" or "scoundrels" were 
 not applied to them by Judge Porter ; that if those terms 
 still ring in the ears of those persons, it was their con- 
 sciences, and not Judge Porter, that applied the epithet 
 to them. 
 
 As to the third article, it will appear that the facts set 
 forth in our answer are true. That so far from the judge 
 becoming a volunteer in the transaction, he was informed 
 by both parties, that it was a mere trifling matter of 
 quarrel between neighbors, as it really was. But as soon 
 as he discovered the nature of the prosecution, which was 
 disclosed to him by Justice Weygandt, he said nothing 
 more in relation to it ; and on the trial of the accused 
 before him a few days after, she was convicted and sen- 
 tenced for the larceny. 
 
 The fourth article refers to the trial of the case of the 
 Commonwealth v. John Mill. It will appear that there 
 was no ground for the prosecution. That after hearing 
 all the evidence,it was discovered by the counsel and the 
 court, that no larceny had been committed. The counsel 
 thereupon arranged the matter, by securing the prosecu- 
 tor's demand, which had been the original cause of the 
 institution of the prosecution. 
 
 The fifth article alleges improper conduct in the re- 
 spondent, in the case of Wannemacher v. Sechler. In 
 that case Judge Porter charged the jury, that as the 
 defendant had pleaded guilty and submitted in the in- 
 dictment found against him for the same assault and 
 battery the plaintiff was entitled to a verdict for some- 
 thing; but what the amount should be, was left, as it
 
 IMPEACHMENT OF JUDGE PORTER. 37 
 
 should have been, exclusively to the jury to determine. 
 The jury disregarding the charge thus given which was 
 the settled law of the land most improperly found a ver- 
 dict for the defendant ; and the court as they had a right 
 to do granted a new trial. Courts have their rights; 
 and the safety of our institutions depend on their preser- 
 vation. It would seem, however, from the doctrine now 
 advanced, that juries have a right to trample on the rights 
 of the court with perfect impunity : and if their actions, 
 no matter how improper, are attempted to be controlled 
 by the court, the judge is to be forthwith charged before 
 the Legislature, and subjected to an impeachment for 
 high crimes and misdemeanors ! "We will show that a 
 motion was made, by the plaintiff's counsel, for a new 
 trial. ,A.nd had no such motion been made, the court 
 possessed the right to grant the new trial, instanter; and 
 the judge would have deserved credit for so doing. The 
 jury have no right in civil cases to take upon themselves 
 the decision of the law. The judge did not make use of 
 the expressions charged against him, nor was there any 
 violence or impropriety in his manner. There is certainly 
 an error of impression in regard to this matter. The re- 
 spectable gentleman who was counsel in the cause for the 
 defendant, was much excited at the time, as he himself 
 states ; and is therefore unable to detail the circumstan- 
 ces with that correctness which would, under other cir- 
 cumstances, have been expected from him. 
 
 In relation to the sixth article, which impugns the re- 
 spondent's conduct in regard to the case of Hays v. Bellas, 
 we will show, that the words contained in this " article " 
 were actually used in the charge delivered to the jury ; 
 and that the judge did not know of the charge having 
 been filed, when he made the interlineation. In reference 
 to the marginal note on the bill of exceptions ; we will 
 prove, that it was written on the bill of exceptions before 
 it was signed and sealed by the judge ; that it was accord- 
 ing to the fact as it occurred ; that there was such an
 
 38 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 agreement between the counsel made, as is there stated ; 
 that it was so understood by the court : and that there- 
 fore the judge was right in making the correction before 
 he put his seal to the bill of exceptions, and would have 
 been criminal had he not done so. 
 
 The seventh article charges the respondent with a re- 
 fusal to reduce his opinions to writing when required so 
 to do. 
 
 As to the first branch of his accusation the case of 
 Helfrich and Grim v. Seip's Administrators if such a 
 request was made by the plaintiff's counsel, it was not 
 heard by the court. It was not heard by Mr. Smith, the 
 attorney general, who was concerned for the defendants, 
 who will detail certain other matters which occurred sub- 
 sequently in the case, which will put it beyond question, 
 that such an application could not have been made. 
 
 In regard to the case of Schwenk v. Ebert, it will ap- 
 pear that a mere intimation was given that the plaintiff's 
 counsel was desirous of having the case reviewed, if it 
 should be deemed necessary ; that this intimation was not 
 followed up by any subsequent application to the judge: 
 and that in truth every fact in the case, necessary to its 
 being fully understood, in the court above, had a revision 
 been had, appeared on the record of the cause. 
 
 As to the eighth article, if it should be pressed, we 
 will prove the facts averred in the answer thereto, now 
 on your desks. And upon that proof being made we 
 can have no fear as to your decision upon it. 
 
 The ninth, tenth and eleventh articles have relation 
 to the conduct of Judges Porter and Cooper towards each 
 other. In regard to the ninth, we will show that the 
 boy Smith was really sick ; that humanity called ior his 
 discharge ; that the court could not sever the sentence 
 of the two defendants ; that Judge Cooper's resistance 
 of the application was as unnatural as it was rude ; that 
 if Judge Porter was betrayed into any warmth of ex- 
 pression, it was but human nature expressing its natural
 
 IMPEACHMENT OF JUDGE PORTER. 39 
 
 feelings, and therefore is rather a matter of praise than of 
 accusation. And permit me here to observe, that this, 
 as well as some of the other articles of accusation, in- 
 stead of being matter of impeachment, are proud plumes 
 in the respondent's character. 
 
 As to the other two articles, the tenth and eleventh, we 
 shall exhibit to you the testimony of some disinterested 
 witnesses, who will detail the circumstances as they oc- 
 curred, accurately: and if they will not entirely justify, 
 they will at least fully excuse the respondent's conduct ; 
 and show you, that in pointing out the mote in our eye, 
 Judge Cooper forgot the beam in his own. We will show 
 you that a disposition to dictate and to arrogate, has uni- 
 formly characterized that gentleman's conduct on the 
 bench,. which if not submitted to, would uniformly find 
 vent, if not in paroxysms of anger, in at least rudeness 
 and ungentlemanly conduct, calculated to irritate and 
 offend his fellow judges. 
 
 In addition to all this we will show ; in answer to the 
 charge of corruption, which will be found laid in several 
 of the articles, that the respondent has uniformly main- 
 tained an unsullied reputation for honesty of motive and 
 integrity of character. 
 
 Aiid having satisfied you of these facts in way of quali- 
 fication or explanation of the charges preferred ; after 
 having briefly submitted to you our views of the case, 
 we shall rely upon this distinguished court, for a prompt 
 and honorable acquittal.
 
 40 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 ARGUMENT IN 
 IMPEACHMENT OF JUDGE POETER 
 
 WITS DEFERENCE TO THIS HONORABLE COURT: 
 
 Enfeebled and exhausted as I am, by the protracted 
 investigation of this cause, I arise to address this honor- 
 able court, not in the vain expectation that I shall be able 
 fully to discharge my duty and do justice to the subject 
 of inquiry ; but in the hope that by those efforts which I 
 shall bring to bear on the matter which has so long occu- 
 pied your attention, I shall at least partially discharge my 
 duty, and thereby facilitate the performance of yours. I 
 shall endeavor to treat the respectable counsel for the 
 managers with that courtesy which is his due; and I 
 wish in the observations which I shall make, as far as 
 possible, to separate the counsel from the case in which he 
 has voluntarily embarked. Should that, however, be im- 
 possible, if he has taken his passage in a vessel which is 
 unseaworthy, let him take his fate ; I never can nor will 
 permit my feelings, or my wishes to prevent me from a 
 rigid performance of duty. 
 
 Never, allow me to say, did a more important question 
 than that which now occupies your attention, employ that 
 of a State or Nation. The object of our convention, 
 on the question of national liberty, was not, in point of 
 importance, of greater interest than this. The achieve- 
 ment of liberty itself was not of greater moment to our 
 fathers, than its careful preservation is to us. What, sir, 
 is liberty, when it is not found on its march hand in hand
 
 IMPEACHMENT OF JUDGE PORTEE. 41 
 
 with justice? The moment you sully the ermine of jus- 
 tice you take from liberty itself, all its valuable proper- 
 ties you cease to live in a land of laws, and have no 
 more security for the enjoyment of your rights than the 
 savage who roams the wilderness. 
 
 To say, therefore, that I approach this discussion with 
 diffidence, is to say only what I am sure will be readily 
 believed. I cannot as has been done by the opposite 
 counsel, boast that I represent the majesty of the people ; 
 but I advocate the majesty of justice the supremacy of 
 the laws without which the majesty of the people is an 
 idle tale " a barren theme, an airy sceptre grasped in 
 sleep." It is not merely in respect to the honorable re- 
 spondent who is upon his trial, that this case is im- 
 portant ; but to the country at large and to posterity. 
 The example of this day shall stand recorded as a blessing 
 -or a curse, to those whom you now represent, and to those 
 who shall follow you. If you regard the welfare of the 
 public, if you desire the streams of justice to flow pure 
 and untainted, let your determination be established and 
 placed imperishably upon record, by your decision this 
 day. The cause is one of magnitude in point of princi- 
 ple. To the respondent the result of this investigation is 
 a matter of anxiety ; to the commonwealth also, although 
 in a less degree : he has suffered from being unjustly ac- 
 cused ; the commonwealth suffers in the suffering of each 
 of her citizens. "When the good suffer in the cause of 
 justice, the commonwealth Cannot be indifferent. The 
 struggle of the respondent is not for station or for life it 
 is for reputation, which although at his advanced period 
 of life, it cannot be long enjoyed yet is dear to him 
 still as a parent, descending as a rich legacy to his issue. 
 " The purest treasure mortal times afford is spotless repu- 
 tation." Character may aptly be compared to a fair and 
 fragile flower, that blooms only and exhales its fragrance 
 while surrounded by a pure and wholesome and heavenly
 
 42 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 atmosphere ; the moment it is assailed by the poisonous 
 breath of calumny it withers, pines and dies. 
 
 The respondent does not merely ask at your hands,that 
 after a lingering deliberation, he be cleared of the accusa- 
 tions ; but he asks, that this court shall join in a solemn 
 lustration of his character. For months, nay for years 
 has he been held forth to the world, as a sort of byword 
 and reproach. I have before said, and I repeat it, that 
 this is not a prosecution originated by the House of 
 Representatives, but by individuals. That it is not insti- 
 tuted upon the suggestions of public justice, but for the 
 gratification of private malevolence. I will nevertheless 
 drag these accusers from their lurking places, and exhibit 
 them to the merited contempt and abhorrence of a virtu- 
 ous community. How salutary often is the lesson to be 
 drawn from vice ! While virtue is ever open as she is 
 honest ; vice seeks the covert and concealment and would 
 cloak its cloven foot in modesty. Alas 1 the effort never 
 can avail. Mountains may cover, seas may hide the 
 guilty, but the arm of justice shall still fathom their re- 
 treat. Let them dive if they will into Tartarian dark- 
 ness ; the radiant eye of truth shall beam upon them and 
 exhibit them, in all their naked deformity, to the indig- 
 nation of a hissing world ! Such I will show you are the 
 prime movers of this nefarious scheme such are those 
 who would be prosecutors in this case, but who are now 
 in truth actually at your bar, morally at least, as respond- 
 ents these are they who, by way of promoting the equal- 
 ity of man, would reduce the respondent from the height 
 of well earned reputation, to their own vile level. 
 
 Xot to anticipate, sir, I propose in the first place to re- 
 ply to the ingenious counsel for the managers; and, 
 secondly, to call the attention of the court to the articles 
 of impeachment, having particular reference to the respec- 
 tive charges ; and here permit rne to return my thanks to 
 that learned gentleman for the many compliments, ill de- 
 served as I fear most of them are, which he has been
 
 IMPEACHMENT OF JUDGE PORTER. 43 
 
 pleased to bestow upon my humble self. If he really be 
 that admirer of eloquence which he professes, he must be 
 truly a happy man ; for he has always the source of his own 
 gratification within himself. But to return to the notice 
 of his arguments. I might admit every principle which 
 he has advanced as law ; and still stand unshaken as the 
 foundations of this noble edifice. What is the position 
 he has assumed touch it with Ithuriel's magic spear, and 
 see its character. 
 
 The gentleman has advanced as one of his principles 
 although he seemed to say that its discussion was not a 
 matter of great materiality in the present issue that 
 matters might be impeachable which would not be in- 
 dictable. It is not necessary to controvert this proposi- 
 tion for , the purposes of our defence ; but I do protest 
 against such a doctrine being established as the law of 
 the land. It is at war with the Constitution, with the 
 law, and all the decisions upon the subject. The case of 
 the Commonwealth v. Wilson, to which the counsel clings, 
 with as much desperation as does the shipwrecked mari- 
 ner to some char.ce-found plank, so far from bearing him 
 out in his doctrine, defeats him in it. Judge Duncan, in 
 fact, lays down the law, that the oifence charged against 
 the defendant, in that case, " was impeachable because it 
 was indictable." 
 
 He has, moreover, referred to cases of impeachment in 
 England. There is one important feature which distin- 
 guishes the practice in England upon these subjects, from 
 that which obtains in this country. There, the individual 
 impeached, if guilty, is subjected not only to the loss of 
 his office, but to be punished criminally for his offence ; 
 and that, too, by the same sentence. Here it is other- 
 wise. If the honorable respondent be guilty, your sen- 
 tence may deprive him of his office ; but it cannot de- 
 prive him of his liberty or inflict upon him criminal 
 punishment. The Constitution of the United States pro- 
 vides that : u The impeachment of the President, Vice
 
 44 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 President or any other officer of the United States, shall 
 not prevent, in case of conviction, their trials before 
 courts of criminal law." Con. U. S., art. 2, sec. IV ; art. 
 1, sec. Ill, 7. The authorities, therefore, drawn from 
 cases in England, are not applicable here; and they are 
 by no means calculated to prove, what the counsel en- 
 deavored to show by them, that offences which are not 
 indictable may be impeachable. The clause in the con- 
 stitution of our own State, which has been more than 
 f>uce referred to, establishes the contrary ; for if we are 
 to understand that the offences therein contemplated 
 were indictable offences, it was idle and silly and, in- 
 deed, worse than both to point out the mode in which 
 the offender was subsequently to be tried. " The party, 
 whether convicted or acquitted, shall nevertheless be 
 liable to indictment, trial, judgment and punishment, ac- 
 cording to law." But we are told that the Constitution 
 of Pennsylvania does not mean anything but a misde- 
 meanor in office granted. But what is a misdemeanor ? 
 The gentleman says it signifies misbehavior, and mere 
 misbehavior. According to his interpretation it means 
 any faux pas. In truth, he says it means any "error." If 
 this be the legal doctrine, sir, why have we courts of ap- 
 pellate jurisdiction ? To what purpose or with what in- 
 tent have we established a Supreme Court ? The law 
 knew that man, even in his judicial station, was liable to 
 err in judgment, and therefore provided courts of error 
 for the revision of judgments of inferior tribunals. But 
 if what we now hear is law, let judges beware ; for every 
 reversal of their judgment in the Supreme Court will 
 furnish ground for an article of accusation and impeach- 
 ment against them. 
 
 When I speak of a legal term I speak of it as a lawyer ; 
 and as a lawyer I understand misdemeanor to signify any 
 public offence, less than felony, for which a man may be 
 indicted. The moment you give any other than a legal 
 signification to a legal term, to suit the views of a rotten
 
 IMPEACHMENT OF JUDGE PORTER. 45 
 
 cause, there is an end to liberty and law. We should be 
 much at a loss to know to what length the doctrine of 
 the gentleman would carry us. 
 
 Misbehavior is a very flexible term you may bend it 
 to suit what you please ; it varies as the mind varies, or, 
 what is perhaps still more capricious, as the manners 
 change. Suppose any judicial oflicer, in opposition to the 
 habits of the present day, should think proper to retain 
 his hat upon his head, instead of remaining uncovered ; 
 this might not be exactly consistent with the gentleman's 
 ideas of good breeding ; this, in other words, might be 
 misbehavior, but it is not a misdemeanor. It is not in- 
 dictable ; and, therefore, is not impeachable. A misde- 
 meanor Is a criminal offence ; a criminal offence proceeds 
 from a corrupted heart ; sin is the offspring of the heart ; 
 and there is no authority to be found, either in law or in 
 ethics, to punish a man for the mere fallibility of the 
 head. Misbehavior does not mean misdemeanor. Would 
 the commission of an assault and battery by an officer, 
 during the tenure of an office, be a misdemeanor in office, 
 for which he wou'd be impeachable ? 
 
 There is a difference between the Constitution, of Penn- 
 sylvania and that of the United States, in regard to the 
 mode of removing civil officers. In the former, besides 
 the provision already stated, that " all civil officers shall 
 l)e liable to impeachment for any misdemeanor in office," 
 there is another provision which declares " that the judges 
 of the Supreme Court and of the several courts of Com- 
 mon Pleas shall hold their offices during good behavior, 
 but for any reasonable cause, which shall not be sufficient 
 ground of impeachment* the Governor may remove any of 
 them on the address of two-thirds of each branch of the 
 Legislature." In the latter there is no such provision. 
 Under it the judges hold their offices during good beha- 
 vior, and all civil officers are liable " to be removed from 
 office on impeachment for, and conviction of, treason, 
 bribery, or other high crimes and misdemeanors."
 
 46 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 Under this provision in the Constitution of Pennsyl- 
 vania, the matter is rendered perfectly plain. What is the 
 purpose of the provision for removal for reason ahle cause, 
 which shall not be sufficient ground for impeachment? 
 If the gentleman be correct in his views, they are en- 
 tirely superfluous ; since, if the first provision embraces all 
 sorts of misbehavior, from the highest crime to the merest 
 peccadilloes, there is nothing upon which the latter clause 
 can act. I tell you, sir, that removal, by address, is the 
 remedy intended for the lesser evils, and impeachment is 
 that which is designed for indictable offences ; and there 
 is no other mode in which those constitutional provisions 
 can be reconciled with each other, or with themselves. 
 The one is intended as the remedy for crime, the other for 
 misbehavior not amounting to crime, such was the in- 
 tention of the framers of the constitution ; and had this 
 not been their view of the subject, they would have made 
 the latter clause of the third section, 4th article, read : 
 " the party whether convicted or acquitted shall neverthe- 
 less be liable to indictment, trial, judgment and punish- 
 ment according to law, where the offences are indictable in 
 their character" 
 
 To show that I am not singular in my views on this 
 subject, I will cite Judge Chase's trial. Not the argument 
 of Mr. Nicholson, which is merely speculative theory ; and 
 was unsanctioned either by precedent or by the decision 
 of the court in that case : but the opinion of Luther Mar- 
 tin, that giant of the law, with whom the court accorded 
 in opinion. Mr. Martin, pages 137-40 of the trial says "I 
 shall now proceed in the inquiry ; for what can the Presi- 
 dent, Vice President, or other civil officers ; and conse- 
 quently, for what can a judge, be impeached ? And I shall 
 contend that it must be for an indictable offence. The 
 words of the constitution are, that ' they shall be liable to 
 impeachment for treason, bribery or other high crimes and 
 misdemeanors.' 
 
 " There can be no doubt but that treason and bribery
 
 IMPEACHMENT OF JUDGE PORTER. 47 
 
 are indictable offences." "We have only to inquire then, 
 what is meant by high crimes and misdemeanors. "What 
 is the true meaning of the word " crime ?" It is" the breach 
 of some law, which renders the person, who violates it, 
 liable to punishment. There can be no crime committed 
 where no such law is violated. The honorable gentle- 
 man, to whom I before alluded, has cited the new edition 
 of Jacob's Law Dictionary : let us then look into that 
 authority, for the true meaning of the word "misde- 
 meanor." He tells us 
 
 " Misdemesnor or misdesmeanour, a crime less than felony. 
 The term misdemeanor is generally used in contradistinction 
 to felony, and comprehends all indictable offences, which do not 
 amount to felony, as perjury, libels, conspiracies, assaults" c. 
 See 4 Comm. chap. 1, p. 5. 
 
 "A crime or misdemeanor " says BlacTcstone, " is an act com- 
 mitted or omitted in violation of a public law, either forbidding 
 or commanding it. This general definition comprehends both 
 crimes and misdemeanors, which properly speaking are mere 
 synonymous terms: though in common usage, the word ' crimes' 
 is made use of to denote such offences as are of a deeper and 
 more atrocious dye ; while smaller faults, and omissions of less 
 consequence, are comprised under the gentle name of misde- 
 meanor only." 
 
 " In making the distinction between public wrongs and 
 private, between crimes and misdemeanors and civil in- 
 juries, the same author observes, that 'public wrongs, or 
 crimes and misdemeanors are a breach and violation of the 
 public rights and duties, due to the whole community con- 
 sidered as a community in its social, aggregate capacity.' 
 4 Comm. 5. 
 
 " Thus it appears, crimes and misdemeanors are the 
 violation of a law, exposing the person to punishment : 
 and are used in contradistinction to those breaches of law, 
 which are mere private injuries, and only entitle the in- 
 jured to a civil remedy." 
 
 " Blackstone's Commentaries, 4 vol. p. 5th is cited by
 
 48 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 Jacob, and is as there stated. I shall not turn to it. Hale, 
 in his pleas of the crown, volume first, in his Pr&mium, 
 which is not paged, speaking of the division of crimes, 
 says, 
 
 " Temporal crimes, which are offences against the laws of 
 this realm, whether the common law, or acts of Parliament, are 
 divided into two general ranks or distributions in respect to the 
 punishments that are by law appointed for them, or in respect 
 of their nature or degree ; and thus they may be divided into 
 capital offences, or offences only criminal, or rather and more 
 properly into felonies and misdemeanors, and the same distri- 
 bution is to be made touching misdemeanors, namely, they are 
 such as are so by the common law, or such as are specially 
 made punishable as misdemeanors by acts of Parliament '." 
 
 " Thus then it appears, that crimes and misdemeanors 
 are generally used as synonymous expressions ; except 
 that 'crimes' is a word frequently used for higher offences. 
 But while I contend that a judge cannot be impeached, 
 except for a crime or misdemeanor, I also contend that 
 there are many crimes and misdemeanors for which a 
 judge ought not to be impeached, unless immediately 
 relating to his judicial conduct. Let us suppose that a 
 judge provoked by insolence, should strike a person : this 
 certainly would be an indictable, but not an impeachable 
 offence. The offence for which a judge is liable to im- 
 peachment, must not only be a crime or misdemeanor but 
 a high crime or misdemeanor. The word ' crime ' as 
 distinguished from misdemeanor, is applied to offences of 
 a more aggravated nature. The word ' high,' therefore, 
 must certainly equally apply to misdemeanors and to 
 crimes. Nay, sir, I am ready to go further, and say, there 
 may be instances of very high crimes and misdemeanors, 
 for which an officer ought not to be impeached, and re- 
 moved from office. The crimes ought to be such as relate 
 to his office, or which tend to cover the person, who 
 committed them, with turpitude and infamy: such as 
 show there can be no dependence on that integrity and
 
 IMPEACHMENT OF JUDGE PORTER. 49 
 
 honor which will secure the performance of his official 
 duties." 
 
 " But we have been told, and the authority of the 
 State of Pennsylvania has been cited by one honorable 
 manager (Mr. Eodney), in support of the position ; that 
 a judge may be impeached, convicted, and removed from 
 office, for that which is not indictable for that which is 
 not a violation of any law." 
 
 " "What, sir, can a judge be impeached and deprived of 
 office, when he has done nothing which the laws of his 
 country prohibited ? Is not deprivation of office a pun- 
 ishment? can there be punishment inflicted where there 
 is no crime ? Suppose the House of Kepresentatives to 
 impeach, for conduct not criminal; the Senate to convict ; 
 doth that change the law ? No, the law can only be 
 changed by a bill brought forward by one House in a cer- 
 tain manner; assented to by the other ; and approved by the 
 President. Impeachment and conviction cannot change 
 the law, and make that punishable which was not before 
 criminal.'" 
 
 In considering the term "high" used in the Constitu- 
 tion of the United States, the gentleman seemed at a loss 
 to understand its meaning. It is a term used by sovereign 
 governments ; and its legal effect is very satisfactorily 
 explained in the extract which I have just read. The 
 gentleman has suggested the case of "fatuity." It was 
 an unfortunate case. I meet him on his own grounds, 
 and I deny everything like authority under the laws to 
 proceed in such cases by impeachment ; for errors of the 
 head must be remedied by "address," when they will be 
 probably destructive in their consequences. Impeach- 
 ment rests upon the errors of the heart alone ; and the 
 case from 10th Sergeant & Rawle, instead of overthrow- 
 ing, supports this idea. Judge Duncan did not therein 
 determine, as he could not have determined, that the 
 offence was not impeachable. He merely decided that it 
 
 was indictable. 
 
 4
 
 50 FORENSIC SPEECHES OP DAVID PAUL BROWN. 
 
 The case of Judge Pickering, cited, is a mere abstract 
 of the proceedings referred to in an elementary treatise 
 we have not the details, nor if we had, could the decision 
 in the Senate of the United States, under the Constitu- 
 tion of the United States, alter the law or the Constitu- 
 tion of Pennsylvania. 
 
 The same observation that they are mere abstracts 
 taken in connection with the observations heretofore 
 made on the authority of British precedents in cases of 
 this kind, will apply to the cases of Lord Bacon, the 
 Duke of Buckingham and Lord Finch, with this answer 
 to the gentleman's question ; that bribery and the corrupt 
 purchase and sale of offices, charged against Lord Bacon 
 and the Duke of Buckingham, a re indictable offences. 
 
 But the opposite counsel infers from the case in 10th 
 Sergeant & Rawle, that the offences contained in these 
 articles of impeachment,~or the greater part of them at 
 least, are indictable ; and consequently impeachable : 
 which leads me to the consideration of this, his second 
 position. In reply to that, I in the first place say, that 
 the two positions of the counsel are mutually destruc- 
 tive, or at all events imply a want of confidence in the 
 mind that suggested them ; for, if the offences are im- 
 peachable, though not indictable, why occupy your time 
 in the attempt to show that these offences charged, as 
 contended, are indictable ? Why engage in a laborious 
 effort to show that, which is alone necessary to be shown, 
 in case the law were otherwise. 
 
 Let us now turn our attention to the remarks of the 
 counsel, brief as they were, upon the different charges, in 
 the order in which they are exhibited. After all the dis- 
 play which was made on the other side of professed can- 
 dor and impartiality and frankness, has a single charge 
 been abandoned, until we bearded the prosecutors in 
 their den ? True, when we were calling our witness to 
 the bar, then and not until then, was the 8th article 
 abandoned, and it is the only one which has been with-
 
 IMPEACHMENT OF JUDGE PORTER. 51 
 
 drawn. The 12th article, although not urged, has not 
 been abandoned. But, sir, as to the 1st article which we 
 have swept from its foundation, the counsel passes over it 
 simply by saying that he would not rely upon any par- 
 ticular law to support it, but upon the law generally. 
 This reminds me of what a learned gentleman once called 
 " amplifying to a point." If I understand the rules laid 
 down by the honorable court for the government of its 
 proceedings ; upon the conclusion of the testimony, the 
 argument upon the part of the commonwealth was first 
 to be made, and then the argument on the part of the 
 respondent ; and in conclusion, the reply on behalf of the 
 commonwealth. Under this view of the subject, I was 
 entitled surely, to the gentleman's argument on the case, 
 in order to enable me to answer, if necessary. He has 
 the advantage of the conclusion, and the reason why he 
 was required to sum up first, is, that he may lay down 
 the legal principles at least, upon which he rests his case, 
 that they may be open to the observation of the succeed- 
 ing counsel. I can tight a wind-mill, sir, because it is 
 visible and tangible ; but I cannot fight the wind by 
 which it is driven. If, however, upon the present occa- 
 sion, he knows no particular principle upon which he can 
 rest this part of a sickly cause, I hope I shall be able to 
 satisfy even him, that there are many principles upon 
 which it can be resisted. 
 
 In reference to the second article, we are told that the 
 rights of personal liberty are sacred. That the judge 
 had no right or authority to arrest Beidleman, Young 
 and Haberacker ; and that his having so done, was an 
 official misdemeanor. I am not now discussing these ar- 
 ticles. I am merely glancing at them in a hasty review 
 of the gentleman's arguments. But for the present, my 
 answer is, that there never was any arrest. If, instead 
 of reading authority upon authority, to show what is a 
 legal, and what an illegal arrest; the gentleman had es- 
 tablished that there had been au arrest, it would have
 
 52 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 been much more satisfactory. Everybody who invites a 
 gentleman to a party, would be guilty of an arrest, ac- 
 cording to the counsel's new version of the law. But, 
 sir, it is abusing the time and patience of the court, to 
 dwell longer upon it ; and I shall pass from it, observing 
 that the course of the opposite counsel reminds me very 
 strongly of a circumstance which is alleged to have taken 
 place in the time of Charles II. That merry monarch, it 
 is said, with a view of selecting one of the wisest rnen in 
 his kingdom for some special purpose, called together 
 most of the learned of the realm, and proposed to them 
 this question, " What is the reason, that in placing a fish 
 in a bucket full of water, the water still will not over- 
 flow ?" A variety of reasons were suggested by the can- 
 didates for royal favor, all very ingenious, no doubt, until 
 at last the King put the inquiry to a sagacious Scot, who 
 replied, " I deny the fact, your Highness ;" and the Scot 
 was right. I will leave it to my friend on the other side 
 of the question, and the members of this court, to apply 
 the story. I deny the fact, as alleged by the opposite 
 counsel, and until it is established, time is too precious to 
 discuss the empty theory alone. 
 
 As to the third and fourth articles, which have been 
 jumbled together in their consideration by the counsel; 
 and in relation to which, we have had an ingenious dis- 
 sertation upon the ancient doctrine of theft-bote ; it is not 
 necessary for me to say more at this time, than that the 
 fact of compounding, or attempting to compound a felony, 
 is not made out. In one of the articles, he is charged with 
 attempting to induce a magistrate to violate his duty. 
 Although this is also wholly unsupported by proof, it 
 would seem that in view of the prosecution, there is no 
 difference between the act itself, and the. attempt to do 
 the act. 
 
 The law in regard to these matters is well settled. It 
 is no subject of dispute. Every tyro knows what consti- 
 tutes larceny, and what is the meaning of compounding a
 
 IMPEACHMENT OF JUDGE PORTER. 53 
 
 felony. And every man who contemplates with an un- 
 jaimdiced eye, the features of this case, so far as relates 
 to those articles, must at once perceive that the case is 
 not brought within the provisions of the law. If all the 
 facts alleged in those charges were true, it would not 
 avail the prosecution. It is therefore unnecessary for me, 
 untrue as they are in all material points, to attempt es- 
 tablishing the invalidity of this portion of the accusation. 
 
 All the remaining charges appear to me to be similarly 
 circumstanced ; either the facts, if true, do not support 
 the conclusion attempted to be drawn from them ; or the 
 facts alleged are untrue, and of course the conclusion falls. 
 
 This case is said by the opposite counsel to be in the 
 nature of a criminal prosecution. What does this mean ? 
 I understand it to signify that it is a case in which the 
 same principles and rules must govern, as in cases of in- 
 dictments at common law. I ask for nothing more. For 
 this doctrine is in the teeth of three-fourths of the argu- 
 ments to which you have listened this morning. Suppose 
 the case of an indictment for larceny, would it not be 
 necessary that the word feloniously should be introduced ; 
 or could the prosecuting counsel succeed upon merely 
 proving that the goods were taken ? Certainly not. If 
 6O, any member of this honorable court may be convicted 
 of larceny, either for taking his own hat, or that of 
 another, through mistake. It is essentially necessary 
 that the indictment should set forth the facts, and should 
 set forth the motive; and in returning your verdict, you 
 cannot find the one without the other. I lay it down 
 to be a principle, which alike governs human and divine 
 tribunals ; that no man can be guilty of a crime, where it 
 does not clearly appear, that the act from which the crime 
 is attempted to be inferred, was intentionally committed. 
 In the present case, therefore, it is not enough that facts 
 should be found, although there we are thrice armed; but 
 you must find the legal conclusion also, which goes to the 
 establishment of corruption of heart. These remarks are
 
 54 FORENSIC SPEECHES OP DAVID PAUL BROWN. 
 
 particularly applicable to the case of Hays v. Bellas, con- 
 tained in the sixth article, which imputes forgery to the 
 honorable respondent. But as it is my design fully to 
 discuss these articles in their order, I will not now occupy 
 the time of this honorable court, in more particularly re- 
 ferring to them. The system which I have prescribed to 
 myself, and which I now merely mention to facilitate the 
 comprehension of my views, is this: first, I shall con- 
 sider the case, as exhibited by the prosecution ; and sec- 
 on<Hy, by the defence. Under the former of those two 
 heads, I shall advert to the charges as contained in the 
 articles, and to the charges as established by the proof. 
 Under the latter general division, I shall refer to the an- 
 swers of the respondent, and to the evidence by which 
 they are supported. 
 
 The first article, charges the respondent with official im- 
 propriety in the case from Berks county, of Seitzinger v. 
 Zeller. And here, permit me to observe one circumstance 
 in this prosecution which is not a little remarkable ; and 
 which is calculated to excite feelings little short of super- 
 stition ; and it is this : the first name which ought to 
 have been uttered in this prosecution ; that of him who 
 has been the prime mover of all this mischief; he who, 
 to use a simile borrowed from his own vile vocation, has 
 shuffled every other witness in turn to the top of the pack, 
 and with his characteristic modesty has kept himself on 
 the back ground ; I say, this name is after a ten days' 
 investigation the last word uttered by the last of 
 the witnesses examined in the cause JACOB W. SEETZ- 
 INGER! ! ! He, sir, who battened on the public for weeks 
 during the last session ; he who has regularly been called 
 every day since this court has been in session, and regu- 
 larly answered to his name ; he, sir, who hired counsel be- 
 fore the committee of investigation, and who, it would 
 seem, was to carry counsel, committee, commonwealth, 
 and all, on his Atlantean shoulders ; who is alleged to be 
 particularly interested in the matters referred to in the
 
 IMPEACHMENT OF JUDGE PORTER. 55 
 
 first charge, never condescends to appear in person as a 
 witness : Nay, so successfully does he seek to conceal 
 himself under the mantle of ill affected modesty ; that it 
 is not until the last moment of the testimony, and then, 
 not without great reluctance on the part of his friend and 
 confidant (Mr. Bellas), that we are able to identify him 
 with this nefarious plot a plot against the respondent 
 and the State. Here then, I arraign you Jacob "W. 
 Seitzinger, Hugh Ross, and Henry Jarrett as public 
 conspirators ; the first, as principal, the two last, as 
 accessaries before the fact. 
 
 Let me, without proceeding further upon so odious a 
 theme, direct the attention of this honorable court, to 
 the more particular subject of inquiry. 
 
 The first article after setting forth the matters of com- 
 plaint, concludes: " Thus wilfully and corruptly denying 
 a citizen the right of having justice administered to him 
 without sale, denial or delay." These are very pretty, 
 specious, high sounding words, picked out of Purdon's 
 Digest for the occasion, to round off this elegant and 
 classically written specimen of legal and literary erudi- 
 tion. " Sale," of what ? " Barter ! " for what ? I should 
 like, soberly to inquire, what has appeared in the whole 
 of the evidence, like inducement to the respondent to act 
 otherwise than fairly and honestly ? I agree, if you 
 please and it is according all that can be required at my 
 hands that sacrifices are frequently made by men in 
 elevated situations, to objects altogether insignificant and 
 disproportionate in point of consequence or character. 
 Doctor Dodd, we are told, surrendered all regard for his 
 character, his family, his friends ; and meanly consented 
 to become a worshipper at the shrine of Mammon, " that 
 least erected spirit that fell ;" Lord Chancellor Bacon, 
 " the greatest, wisest, meanest of mankind," sacrificed the 
 mighty space of his large honors " for so much gold as 
 might be grasped thus!" Nay, not to confine ourselves 
 to the corrupted currents of more moderate times ; Esau
 
 56 FORENSIC SPEECHES OF DAVID PAUL BROWN., 
 
 sold his birth-right for a mess of pottage and to sum up 
 all, Judas, the traitor Judas, basely bartered the Saviour 
 of the world for "thirty pieces." But this it seems in 
 opposition to everything like reason, like reputation, like 
 example is a sale forsooth, without purchaser or price. 
 Is it, or can it be supposed, that the honorable respondent, 
 whose character for honesty and integrity has been em- 
 phatically admitted to be without spot and without 
 blemish, would immolate himself, destroy his reputation, 
 and entail infamy on his family, without motive with- 
 out inducement? 
 
 Is there " denial ? " why, the very complaint is, that 
 he adjudged the cause. Is his judgment erroneous? 
 why has it not been reviewed in the Superior Court. Has 
 there been " delay ?" the objection is, that he would not 
 delay. Let these terms then be wafted on the idle air for 
 proper company. But, take every fact alleged in the 
 article to be fully sustained by proof; admit it to its ut- 
 most extent, yet the prosecuting counsel could not sus- 
 tain it as matter of impeachment. As well might he at- 
 tempt to swim with fins of lead, or hew down oak with 
 rushes. (Here Mr. B. read the whole article.) He never 
 could have hoped to sustain it the article in its composi- 
 tion is about as legal as it is classical. There is no offence 
 or impropriety alleged, which has a particle of truth in 
 it ; and if it were all true, I care not. 
 
 I admit that he presided on the argument, upon the 
 exceptions filed to his report, in the case of Seitzinger v. 
 Zeller. I admit that he had previously, with reluctance, 
 consented to serve as a referee ; and that he reported 
 every farthing that was due to the plaintiff'. I deny 
 that he was requested to leave the bench when the 
 argument came on. Mr. Baird could not say whether 
 the expression of Mr. Biddle " that Judge Porter could 
 not sit, or ought not to sit," was intended for the ear of 
 the judge, or a mere intimation to himself. Mr. Smith, 
 Mr. Hayes, Gen. Addams, and the two associates did not
 
 IMPEACHMENT OF JUDGE PORTER. 57 
 
 Lear it. Mr. Biddle, it is true, says, " I mentioned to 
 Judge Porter that it was our wish that he should not 
 sit ; " and " I have every reason to believe he heard it." 
 But, sir, he is mistaken in saying he addressed the 
 observation to Judge Porter ; or why would not some 
 one else have heard it. If, however, he did; his enuncia- 
 tion at best is indistinct, and there is every reason to pre- 
 sume that it was not heard by the respondent. But, if 
 it had been distinctly and openly addressed to the judge, 
 and as distinctly heard by him, I care not a feather. It 
 cannot affect or injure the respondent. Has it come to 
 this, that because one of the parties, or his counsel, re- 
 quests a judge, whose integrity and stern justice do not 
 suit his views, to leave the bench, that the judge is bound 
 submissively to comply? Are your judges to be made 
 mere puppets, to be shoved on or off the scenes, at the 
 will of the counsel. Sir, had he submitted to this, he 
 would have been culpable. He would have abandoned 
 his duty. He then would not have been " administering 
 justice without denial or delay." He was not bound to 
 go ; he was bound by the law, and by the obligation of 
 his office which he has sworn to perform with fidelity, 
 to remain on the bench and fearlessly discharge his duty. 
 But it is alleged, that the judge refused to produce his 
 calculations, on which he founded his report. Suppose he 
 had; no injury was sustained by it the exceptions to 
 the report, by the rules of the court, must have been 
 filed within four days after the reading of the report. 
 The report in this case was filed, as appears by the record, 
 upon the 15th day of November, 1823. The exceptions 
 were filed upon the 17th day of the same month. The 
 judge was asked for his calculations at August Term, 
 1824. So that the exceptions had to stand on their own 
 merits ; and could not be aided or amended by any state- 
 ments or calculations produced nine months afterwards. 
 The exceptions were dismissed because thej' were defec- 
 tive and insufficient.
 
 58 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 The respondent did not, however, refuse to give his 
 calculations. Although from having been present and 
 concerned in the cause, I might, with the chaste poet of 
 Mantua, say : " all which I saw, and part of which I 
 was ; " yet I will take the evidence adduced before you, 
 as it essentially corresponds with uy own recollections. 
 Mr. Biddle does not pretend to say, that the judge re- 
 fused to give his calculations ; but that he alleged that 
 he had not kept any, or had none. Mr. Baird does not 
 say there was any refusal to explain. Mr. Hays says, 
 that " the judge stated he had not preserved his cal- 
 culations, that he had made them on slips or pieces of 
 paper which he had not kept, but that he was ready to state 
 the grounds of his report." Judge Witman says the same 
 in effect. Judge Schneider says he appeared willing to 
 give them every satisfaction ; and Gen. Addams says, 
 that when Mr. Baird said they would be under the neces- 
 sity of examining the judge, he said he was very willing 
 to be examined. 
 
 When the judge came upon the bench, he ceased to be 
 a referee. He was then a judge of the court: bound to 
 decide all questions that legally came before him in his 
 judicial character, in which he was not personally 
 interested or to the parties to which he was not 
 connected by ties of affinity or consanguinity. The case 
 before the court, to which I have been referring, was not 
 one of those exceptions ; and consequently the respondent 
 was bound to sit, and to adjudicate upon it. When a 
 judge of the Supreme Court sits at nisi prius; and tries 
 a cause ; and a motion is made for a new trial ; and the 
 case comes on to be argued in bane, the judge always 
 sits on the argument. Nay, more, he always furnishes 
 the facts on which the argument is founded. Such too, 
 was the practice on motions for new trials and appeals, 
 under the old Circuit Court system. But the respondent 
 here had an additional necessity imposed upon him to sit, 
 from the circumstance of his associate (Judge Witman)
 
 IMPEACHMENT OF JUDGE PORTER. 59 
 
 being the father-in-law of Daniel II. Otto (one of the ac- 
 tive creditors in taking defence), who had told him, that 
 in consequence of that relationship, he could not sit upon 
 the argument. 
 
 "With regard to the institution of these proceedings 
 against the respondent, it would seem that the charges 
 had been slumbering seven or eight years in the tomb of 
 the Capulets. Hugh Ross had taken notes (of that, how- 
 ever, more anon), but I am glad to find that to him the 
 obliquity of whose moral vision is so notorious the re- 
 spondent seemed to act with im propriety. For virtue 
 would not be virtue if it received the approbation of vice. 
 But, why do not these charges slumber still ? The prob- 
 lem is solved Seitzinger had obtained a judgment for 
 five or six hundred dollars more than was due him, to 
 the prejudice of the honest creditors of Zellers. This 
 judgment the respondent reduced to what was honestly due 
 him, to wit: $576.63, instead of $1,100 claimed. Seitzin- 
 ger felt his pocket touched ; he breathes revenge ; he 
 finds some kindred spirits willing, like himself, to sacri- 
 fice the respondent at an auto de fe. He communes and 
 consults with Bellas, and with him impeaches the respon- 
 dent in his absence before the committee last year ; and 
 then gets the worthies from Northampton and Lehigh' 
 to join in with him ; yet he does not now come for- 
 ward to testify before you. He has looked within, and 
 fearing that if he made his appearance, all that there 
 rose to his own view would be exposed to the world, he 
 shrunk from the spectacle. 
 
 I submit to this honorable court, that this is a trial 
 between the justice of the land, and those who would 
 wield the thunders of the commonwealth for their own 
 vile purposes; and I leave this article thus, with a full 
 conviction that there can be no difficulty in your decision 
 upon it. 
 
 The second article is worse, if worse can be, than the 
 first. Can I have read rightly ? Is it seriously true, that
 
 60 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 the respondent is impugned, nay, arraigned, for a high 
 crime and misdemeanor for doing, what? For repri- 
 manding men who had violated the law in the worst 
 form. But, says the counsel, the arrest, and not the repri- 
 mand, is the offence and is it so? What says the article, 
 " that the said Judge Porter, sitting on the bench in the 
 court, did reprimand and insult, &c., for suffering gambling 
 in their houssc." What said the counsel himself but just 
 now. He said "these persons were brought up before the 
 court in public ; and exposed to ridicule and contempt ; 
 and made a laughing stock to the whole country." And 
 is this honorable court to fight the battles of Beidleman 
 Young Haberacker Seitzinger, and every other gambler 
 in the county or commonwealth ? Suppose the respondent 
 had termed them "villains;" he would have but called 
 them by their own right names ; but he never used the 
 term. Beidleman alone, was examined as to this part of 
 the charge. He speaks and understands the English lan- 
 guage but imperfectly, and could very readily misappre- 
 hend the expressions used to him ; more especially as his 
 conscience told him that the expression was applicable. 
 He was asked before this court, whether,at the time, he 
 suffered gambling in his house ? And he answered not, 
 but shielded himself under the protection which the 
 prosecution claimed for him, from proclaiming his own 
 infamy, guilt and disgrace. So, sir, when called before 
 the Court of Quarter Session? of Lehigh county, and 
 informed of the complaint which had been made against 
 him, he denied them not ; but by his conduct, admitted 
 that he had so offended. Col. Hutter and Judge Fogel, 
 who were both present, and saw and heard everything 
 which passed, tell you that the word " villains " or 
 " scoundrels," was not used ; and they add, that it could 
 not have been used, or they, would have observed it that 
 they never heard such words from Judge Porter's lips. 
 
 Will you believe the one biassed and prejudiced wit- 
 ness, and whistle the others to the wind ? Does the
 
 IMPEACHMENT OF JUDGE PORTER. 61 
 
 Senate sit here to protect gamblers the vilest and most 
 worthless depredators that infest and prey upon society ? 
 Is this parent of all vice to receive sanction and encour- 
 agement at your hands? Are the gamblers of the land 
 to assemble and hold a jubilee on the success of this 
 cause? Are ye fathers ? Have ye children? Do ye owe 
 it to them, do ye owe it to your country to protect gamb- 
 ling ? And can it be, that the Senate of Pennsylvania, 
 sitting in sober judgment, as the highest court of judica- 
 ture known to the laws, is seriously called on to do this ? 
 It is monstrous, I cau scarcely have patience to endure 
 the thought of it. 
 
 Are not your public functionaries, your judges, to be 
 administrators of the law ? Are they not called upon by 
 every principle of duty, human and divine, to be a terror 
 unto evil doers ? Is it not in proof to you, that the vice 
 of gambling was prevalent, even to an alarming degree, 
 at Allentown ; at the times referred to? And was it not 
 necessary for those,sworn to administer the law, to inter- 
 fere and save the morals of the country from prostitution ? 
 Aye ; but says the counsel, he should have received infor- 
 mation on oath, issued a warrant, and had them, indicted. 
 This mode of proceeding would be less effectual than the 
 one adopted. Who was there willing to take upon him- 
 self the character, at all times odious, of an informer? 
 The venerable Judge Hartzel, now no more, seemed to 
 shrink from it although one of the judges of the court 
 because they were his neighbors. Should they have 
 selected, or sent for one of the clan ; he might have either 
 not sworn the truth, or like the culprit here, stand on his 
 privilege. Sir, the stand which the respondent took on 
 the side of morals and virtue, was worthy of himself, and 
 of his own fearless and exemplary character; and I should 
 have thought less of him than I do, had he failed in doing 
 what he has done. 
 
 The simple facts in regard to this article, are, that 
 gambling prevailed openly and publicly in Allentown.
 
 62 FORENSIC SPEECHES OP DAVID PAUL BROWN. 
 
 That the vice was spreading -its devastations over the 
 place ; the widow and orphan felt it ; the stranger, setting 
 his foot in the place, was liable to become the victim of 
 the sharpers who infested it. The tavern keepers, licensed 
 by the court, and necessarily under its control, gave it 
 countenance and support ; in violation of the law and 
 morality. The respondent interposed his authority, and 
 having desired those most notorious for their transgres- 
 sions, to corne before the court, they voluntarily came 
 forward ; and the respondent openly and publicly in- 
 formed them of the complaints which had come to his ears, 
 the truth of which they admitted ; and he then cautioned 
 them to beware how they again transgressed ; for if com- 
 plaints should be again preferred, they should be punished 
 with all the severity of the law. 
 
 If the respondent be censured for conduct like this, 
 instead of injuring him in the estimation of the only part 
 of mankind whose estimation is worth having the virtu- 
 ous and the good it will be the brightest gem in his coro- 
 net. And if the lawgivers of our land ; if the highest 
 and most dignified tribunal of the commonwealth, shall 
 think this a matter of accusation and of crime; why then 
 you may as well turn your hall into a gambling den; ap- 
 propriate your sacred desks to faro banks; and let jus- 
 tice depend on the hazard of the die. 
 
 In the third article of impeachment, it is charged against 
 the respondent, that he interfered to screen a culprit from 
 justice; and endeavored to induce a judicial officer to vio- 
 late his duty,in her favor. But the facts are not proved, 
 to sustain any part of this allegation. As to the evidence 
 of this man, Reese whose testimony, taken alone, must 
 have convinced you that no dependence can be placed 
 upon what he said even Ae, has not dared to say more, 
 than that the respondent told him the case could not be 
 settled before the justice, unless he could certify that 
 Mary Everhart had not committed a larceny. But it is 
 evident, from the testimony of William White and Jacob
 
 IMPEACHMENT OF JUDGE PORTEK. 63 
 
 AVeygandt, Jr., Esquires, who are gentlemen of character 
 and standing; that the respondent did not know the na- 
 ture of the prosecution or charge, until he was informed 
 of it by Justice Weygandt, who emphatically says: 
 " when I observed to Judge Porter that it was a clear 
 case of larceny, he did not press the matter." Taking the 
 facts, given in evidence, it appears, that upon a sudden 
 quarrel, and in a moment of excitement, Jacob Reese, Jr., 
 and Mary Everhart instituted proceedings against each 
 other, simultaneously. The one for larceny, the other for 
 slander. That they both repented what they had done, 
 and were exceedingly anxious to settle their disputes and 
 to pay off' their respective costs. That Reese was particu- 
 larly desirous that it should be done, although before 
 the court, he equivocated a good deal about it. That at 
 his earnest solicitation, the respondent accompanied him 
 to the office of Justice Weygandt, %yho, he represented, 
 was anxious to see him ; that the respondent did accom- 
 pany him, having been informed both by him and by Mr. 
 "White, that it was a trifling quarrel, which they were 
 both anxious should be settled. That the respondent, 
 until informed of the nature of the case, was disposed to 
 give his aid to restore peace between them ; but, that so 
 soon as he found it was a prosecution for larceny, he de- 
 clined having any thing to do with it, and said, " the 
 law must take its course." 
 
 Suppose, if you please, that the judge did what he was 
 not bound to do. Suppose he was disposed to be merciful. 
 Was there anything criminal ; was there anything 
 wrong in what he did? Are you to pass the judgment 
 of the law against a merciful judge. It is the first in- 
 stance in which I ever heard of a judicial officer being 
 criminally arraigned for possessing too much of that, 
 which is most truly styled, the divine attribute of jus- 
 tice. Judge Chase was impeached for issuing a warrant. 
 Judge Porter for not issuing one. Judge Chase for being 
 too severe. Judge Porter for being too merciful.
 
 64 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 " No ceremony, that to great ones 'longs, 
 Not the King's crown, not the deputed sword, 
 The Marshal's truncheon, nor the Judge's robe, 
 Become them with one-half so good a grace, 
 As mercy does." 
 
 But in the disposition to practice mercy, you find no 
 disposition in the respondent to interfere with justice. 
 The moment he discovers that its exercise would inter- 
 fere with the due administration of the laws, that mo- 
 ment says he, " let the law take its course." But, what 
 are we to think of Reese. He first calls upon the re- 
 spondent to do him a favor, and when he has done it, 
 with the blackest ingratitude he accuses him of crime.. 
 Ingratitude has ever been considered the parent and as- 
 associate of all other vices, and it is the worst of 
 all ; he who is ungrateful has no sin but one, all other 
 crimes may pass for virtues in him. Reese has been un- 
 grateful, and deserves the treatment inflicted by Philip 
 of Macedon upon the soldier, who, ungrateful for the 
 preservation of his life and his restoration to health, 
 robbed his benefactor of his possessions. He was branded 
 on the forehead with the words, "The ungrateful Guest." 
 
 Had the defendant, upon her subsequent trial, been ac- 
 quitted through the influence and interference of the re- 
 spondent, then indeed might some complaint have been 
 made against him. But you will find, that on her trial 
 the facts and the law are all submitted to the considera- 
 tion of the jury ; arid she was convicted and sentenced, 
 and has expiated her offence by undergoing the penalty 
 of the law. Instead, I say, of interfering in her behalf, 
 you find that the respondent says, "Let justice be done, 
 regardless of the consequences"; and the sentiment is re- 
 echoed by a member of this honorable court. 
 
 The evidence, as I have already stated, disproves the 
 charge contained in this article, and consequently there 
 can be no reason to apprehend that you will doubt in 
 relation to it. 
 
 [The court here adjourned until the next morning.]
 
 IMPEACHMENT OF JUDGE PORTER. 65 
 
 Mr. Brown, at nine o'clock A. M., resumed his argu- 
 ment. 
 
 MR. BROWN. While I gratefully acknowledge the obli- 
 gations I am under to this honorable court, for the indul- 
 gence granted me yesterday by an adjournment, I trust I 
 shall show my sincerity in expressing it, by the shortness 
 of my further trespass upon your attention. 
 
 In the course, of my observations yesterday, I observed 
 that the respondent's case was one of peculiar hardship, 
 as regarded the motives with which the prosecution was 
 instituted. In this allusion, sir, I had no reference to 
 the motives of the honorable the House of Representa- 
 tives, or those on their behalf immediately conducting 
 this prosecution. The allusion was to those who institu- 
 ted who originated, this persecution. I make this expla- 
 nation now, to correct or counteract any misrepresenta- 
 tion or misunderstanding which may have been made, or 
 entertained, in relation to that which I did say. But be 
 the motives of its originators what they may ; the pro- 
 ceeding has been instituted, and the respondent must en- 
 dure and meet it. I know y" uneasy lies the head that 
 wears a crown;" and that the stubborn and unbending 
 oak will suffer more beneath the fury of the storm, than 
 the yielding and more time-serving myrtle. But we 
 honor the scathed and riven tree for its assimilation to 
 that integrity which never yields the right, to the expe- 
 dient. 
 
 I had proceeded so far as to have concluded my obser- 
 vations upon the third article. I shall now approach the 
 consideration of those which remain, and although they 
 be great in quantity, in quality they are nothing. 
 
 The fourth article has relation to the case of the Com- 
 monwealth v. John Mill. It has relation to a transac- 
 tion which should have taken place at January Sessions, 
 1819 seven years since. There is no doubt that, in con- 
 sequence of the great lapse of time, this court are not in
 
 66 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 possession of as full and complete a history of that trans- 
 action as they might have been, had it occurred at a 
 more recent period. But who should suffer from this ? 
 I^ot the respondent, surely. He could not time the insti- 
 tution of these proceedings ; and if either party is to be 
 prejudiced, it ought to be the commonwealth ; because 
 it was at her option to institute the proceedings at what 
 period she pleased. This honorable court is not to con- 
 vict upon want of proof, when the deficiency is attribu- 
 table to the prosecution itself. (Mr. B. read the article.) 
 It concludes, " In violation of the legal and constitutional 
 right of every citizen to have justice administered ac- 
 cording to law, and against the peace and dignity of the 
 Commonwealth of Pennsylvania." Here, again, we have 
 another of the many specimens with which these articles 
 abound, of legal and logical conclusions, drawn from classi- 
 cal and grammatical premises. This, however, is the charge 
 how, and by whom is it attempted to be sustained ? It 
 is by George Levers, the prosecutor, and by Hugh Ross. 
 Levers does not support it. His recollection of the cir- 
 cumstances is at best like a dream. He no longer is able 
 to recollect the parties to the bill obligatory, the alleged 
 subject of larceny nor the amount. He says he under- 
 stood the proposition to compromise to have originated 
 with the counsel ; and that the court merely assented to 
 it. He was put, as it were to torture, by the opposite 
 counsel ; but to no purpose. All that Levers who wor- 
 shipped at the shrine of Mammon wanted, was his 
 money ; and he got it. But who is the other witness ? 
 Hugh Ross ; another member of this triple, gorgon- 
 headed, league. The judge "was very pressing," "very 
 urging," says he. He does not presume with his notes 
 and all to give the respondent's language. He is con- 
 firmed in this, his own jaundiced impression, by no other 
 witness. . I asked him what he was doing. His reply 
 was, "I am not bound to answer." "Not bound, sir! 
 Why, are you not sworn to tell the whole truth ? Your
 
 IMPEACHMENT OF JUDGE PORTER. 67 
 
 oath has been recorded here,and in heaven." He claimed 
 the protection of the court to be excused from answering. 
 It was not afforded him. He said he was " taking notes." 
 Taking notes ! For what purpose, as you were not 
 concerned in the cause ? His trembling motive skulked 
 in his coward eye. Again he claimed to be excused from 
 answering, but in vain ; again he hesitated, but at length 
 it came out " With a view to its being a charge against 
 Judge Porter, some day." Here was an occasion and an 
 employment worthy the amanuensis of Prince Lucifer 
 himself; noting down the foibles and the faults of human 
 nature. Such testimony should scarcely be adverted to, 
 much less relied on, for any purpose. But, sir, although 
 we here unveiled him, we stopped not with that. He 
 was obliged to own that he travelled miles to procure 
 signatures to the complaint against the respondent. He 
 sought a public dance house to procure signatures. And 
 then, some time after he had confessed this, he again asks 
 to be permitted to come before you, to give the reason 
 why he did so. He says that he did it, so that he could 
 send the petition by Jarrett, and save postage. Here, sir, 
 is a fellow, according to his own account, hunting down 
 the reputation of his fellow-man ; putting his hands in 
 his pockets, and coolly calculating the cost of twenty- 
 five cents postage which he might save by sending on hia 
 precious document by Jarrett, the special messenger of 
 the league. A man who has battened last year a 
 month ; and this year a fortnight, upon the coffers of 
 the commonwealth ! But, be it remembered, that this 
 saving was to be of the funds of the commonwealth, for 
 she pays the postage on all letters to the members of the 
 Legislature. 
 
 Ross is unsustained and unsupported in his evidence by 
 Mr. Levers, the other witness for the prosecution. He is 
 contradicted by James M. Porter, Esq., the deputy attor- 
 ney general at the time ; who had a right, if he chose, 
 to enter a nolle prosequi, even against the consent of the
 
 68 FORENSIC SPEECHES OF DAVID PAUL BROWN". 
 
 court ; because it was previous to the passage of the act 
 of 20th March, 1819, restraining the attorney general's 
 power, relative to the entries of nolle prosequi. (Mr. 
 Brown here read the indictment, Commonwealth v. John 
 Mill.) It appears by the indictment, that the bill obliga- 
 tory never was assigned by Mill, and from the evidence 
 before us, it is manifest, that he had merely deposited it 
 with Levers ; and had not received full consideration for 
 it ; nor parted with the property in it ; and that he took 
 it under a claim of property. But why, as this was the 
 act of the whole court, is it to be charged against the re- 
 spondent alone; both the associates, Judges Cooper and 
 AVagener concurred ; and the latter tells you that he does 
 not now recollect all the circumstances, but he remembers 
 that he did not think it was an indictable offence ; and of 
 this he is certain, that had there been anything improper, 
 he never would have consented. The jury too, concurred 
 in the opinion of the court, and without a moment's hesi- 
 tation, acquitted the defendant. 
 
 I do not apprehend that there can be a loop upon which 
 to hang a doubt, in relation to this article. 
 
 The fifth article relates to the case of Wannemacher v. 
 Sechler. In that case there had been an indictment, in 
 the sessions, for this same assault and battery, for which 
 the civil action was brought in the Common Pleas. Upon 
 that indictment, the defendant pleaded guilty. On the 
 trial of the civil action, the respondent, as every judge 
 and lawyer would have done, charged that the plaintiff 
 was entitled to recover. The amount he left entirely to the 
 jury. The jury, disregarding the law as laid down to them 
 by the court, and assuming to themselves the province of 
 the court, brought in a verdict for the defendant. If the 
 respondent had refused to receive this verdict, he would 
 have done right. But he did not refuse to receive it. He 
 advised the jury again to go out ; repeated to them what 
 the law was ; and instructed them that the law of the 
 land was part of the evidence upon which they bad sworn
 
 IMPEACHMENT OF JUDGE PORTER. 69 
 
 to decide the cause, arid that it ought not to be disre- 
 garded. The jury received the recommendation of the 
 court, and agreed to go out again, and did go out. Was 
 this an insult to the jury ? So far from it, I say, that the 
 jury in again bringing in the same verdict, nay in find- 
 ing the first one insulted the court. If the interference 
 by the courts with the rights of the jury, be an insult to 
 them ; surely, an interference by the jury with the rights 
 of the court, is an insult to the court. We are entitled 
 to the one side or the other of the argument ; for that 
 rule is a bad one which will not work both ways. Sir, 
 the jury were bound to take the law from the court, and 
 the respondent in so instructing them, acted as he always, 
 I am proud to say, acts with entire judicial propriety. 
 Kever, I trust much as I prize the inestimable right of 
 trial by jury shall we live to see the day when the jury 
 shall take the law into their own hands, in civil cases. 
 They have not, and they ought not to have, the control of 
 the law. Injury and distress beyond conception, would 
 be the result, if they had ; because, should they err in its 
 construction, the parties would be remediless. There 
 could be no revision, no correction of their errors; 
 whereas, if the judge, who decides the law, errs, the law 
 has given the means whereby you can revise his errors. 
 
 But it is alleged that the respondent set the verdict 
 aside without a motion. The fact is not so. I will grant 
 that Christian F- Beitel, the prothonotary, did say that 
 no motion was made for a new trial, and he is the only 
 witness that says so. This court will recollect, that the 
 court at which this transaction took place, was the first 
 one at which Mr. Beitel officiated as prothonotary. A 
 competent man would probably be somewhat awkward at 
 a new business ; and much more so, consequently, would 
 one who was as little qualified for the situation as Mr. 
 Beitel. He may therefore easily be mistaken, especially 
 as twelve months ago he knew nothing about it ; as ap- 
 pears by his evidence before the committee. But Mr.
 
 70 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 Smith expressly contradicts him, and says, that he did 
 move, not for a rule to show cause, but at once for a new 
 trial ; that he did it as soon as the verdict was recorded, 
 and while the jury were yet in the box ; on purpose that 
 the jury might hear him, and learn that they ought not 
 to disregard the law. Apply to this testimony the rules 
 of evidence read by the gentleman from Swift's Treatise ; 
 and where does it leave the testimony of Mr. Prothonotary 
 Beitel. 
 
 I almost wish,- however, for the respondent's sake, that 
 no motion had been made, and that he had himself set 
 the verdict aside, without request. He was sworn to ad- 
 minister the laws, to do justice without fear, favor or 
 affection ; and was he to sit quietly by and see those laws 
 trodden under foot, and that justice trampled on and dis- 
 regarded by a jury ? The greatest judge who ever sat 
 upon a bench in the United States and who still sheds 
 lustre upon the high and dignified station which he so 
 usefully fills in our judiciary has granted new trials 
 without motion, where the jury have flagrantly violated 
 the law, and usurped the province of the court. I should 
 be the last man who would encourage encroachment upon 
 the rights of the jury; while I would be the first to resist 
 an encroachment by the jury on the rights of the court. 
 Each has its appropriate sphere; each, in its own province, 
 has its exclusive and appropriate duties to perform, and 
 each should move in its own orbit. 
 
 But it is said, that the respondent used improper lan- 
 guage to Mr. King ; that he told him " not to attempt to 
 make the jury perjure themselves." Mr. King, who has 
 testified with great propriety, admits that at the time, he 
 was considerably excited ; and that, from that cause, or 
 the lapse of years, he cannot be certain even in his impres- 
 sions ; and will not undertake to say what the language 
 used by the respondent was. All that he is certain of, is, 
 that the impression upon his mind, was, that the judge 
 charged him with acting improperly, when he told the
 
 IMPEACHMENT OF JUDGE PORTER. 71 
 
 jury they had a right to persist in their verdict. Mr. 
 Beitel, who never recollected anything of this matter 
 before the committee of investigation ; and whose knowl- 
 edge has been produced by reading over the printed 
 charges and conversing about the matter, since April 
 last; tells you : " that the judge told Mr. King he wanted 
 to make the jury perjure themselves." Upon the other 
 parts of his evidence, I have animadverted sufficiently in 
 my observations on the preceding parts of this article, 
 and will therefore not observe further upon it. But the 
 attorney general, Mr. Smith, was present; he was cool, 
 and understood his business, and therefore able to give us 
 a correct statement of the facts as they occurred. He 
 tells you, that when the jury were about retiring to recon- 
 sider their verdict, Mr. King told them that they might 
 find the same verdict or persist in their verdict and 
 that the respondent observed to him, " Oh ! Mr. King, do 
 not endeavor to make the jury do what is improper 
 they are sworn to decide the cause according to law and 
 the evidence, let them do so." That there was nothing 
 remarkable in the respondent's manner that he saw no 
 passion in him that Mr. King was a little warm, and in 
 the opinion of the witness, richly deserved all the judge 
 said to him. This venerable and respected officer of the 
 commonwealth, was present, and saw, and heard, all that 
 took place ; and has related it as it occurred. 
 
 I must here be permitted to remark upon the little 
 respect or regard paid to many, if not all our witnesses 
 no matter what their age or standing by the opposite 
 counsel, in the manner of propounding his questions. 
 When they had related their knowledge, the counsel 
 chose to cross-examine them, by saying, " will you under- 
 take to say," or " will you venture to say, sir," that this, 
 or that did not take place, or was not said. The wit- 
 nesses (and I now allude particularly to the attorney 
 general ), would not undertake to say what did not take 
 place; but they undertook to say what did take place, and
 
 72 FOKENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 what the respondent did say. "With sucli witnesses, we 
 tread on holy ground. 
 
 But, sir, if the judge had said so, it is no ground of 
 impeachment ; because, if the respondent had even been 
 in error, he committed no offence, he was guilt}*- of no 
 misdemeanor. But I deny that he would have been even 
 doing wrong, had he used the language imputed him. 
 Are counsel to be at liberty to insult the court with im- 
 punity, and must your judges quietly submit, as though 
 they were tongue-tied? The judiciary is everything to us. 
 It is entitled to, and should receive our countenance and 
 support. It is easily assailed, and if its character and 
 standing be lost, your property your liberty, is gone. 
 
 The sixth article is next in order. That was the case 
 of James Hays v. Hugh Bellas ; the suit, in which case, 
 was brought to November Term, 1815, and was tried at 
 April Term, 1818. It is now ten years and upwards since 
 the suit was brought, and nearly eight years since the 
 cause was tried. And here again, I must be permitted to 
 advert to the lapse of time which has intervened, and to 
 ask you, that anything arising from want of evidence in 
 consequence of it, shall operate against the prosecution, 
 and not against the respondent. There are two matters 
 of accusation contained in this article. The first, is the 
 interlineation of the following words, in the charge of the 
 court after it had been signed and ii led ; to wit : " a man 
 may, if he pleases, buy an imperfect right, and if he is not 
 imposed upon, but buys with a knowledge of the imper- 
 fections, he shall in law be held to the performance of his 
 contract." 
 
 The second is for writing on the margin of the bills of 
 exceptions, the following words : " and the same papers 
 were objected to, for want of proof of the handwriting of 
 the said Henry L. Clark, and for other causes ; but it was 
 finally and mutually agreed, that the whole correspond- 
 ence between the parties should be given in evidence, and 
 that the third exception before mentioned, be therefore
 
 IMPEACHMENT OF JUDGE PORTEE. 73 
 
 withdrawn, and the last mentioned papers were read in 
 evidence accordingly." 
 
 Let us approach these charges boldly, and " take the 
 bull" at once, " by the horns." I will however premise, 
 that there has not been a solitary witness examined on 
 the part of the prosecution, who has not been disappointed 
 or displeased in some personal matter, or professional pur- 
 suit , and who does not come forward with all the bias 
 incident to poor weak human nature, when operated upon 
 by such causes : and this observation applies with peculiar 
 force upon the present article, as the attempt to sustain 
 this part of the case, is supported alone by the evidence 
 of Hugh Bellas, the defendant in the cause, who, accord- 
 ing to his own acknowledgment, has been reflecting upon 
 the circumstances ever since ; thus giving additional 
 strength to the original bias of his mind, in relation to it. 
 Mr. Bellas is, no doubt, a respectable man, at least, when 
 compared with the other inciters of this prosecution. 
 Yet, he is but a man, and one who has his full share of 
 personal feelings to be operated upon. That they have 
 been operated upon, is manifest from every part of his 
 testimony. 
 
 As to the first branch of the accusation the interlinea- 
 tion in the charge of the court we admit that the re- 
 spondent made the interlineation, and made it after the 
 charge was filed. But sir, we say, and the evidence bears 
 us out in the assertion, that the matter interlined was 
 actually delivered in charge to the jury, and that when 
 the interlineation was made, the respondent was ignorant 
 that the charge had been tiled. What is the evidence 
 on this subject ? Mr. Bellas says, that the words inter- 
 lined were not in the charge when signed by Judge 
 Porter; that the judge delivered the charge orally: 
 (and by the by, I never heard of one that was not so 
 delivered) that notes of it were taken down by Mr. J. M. 
 Porter, who was his counsel, that from these he wrote 
 out a charge, and the next morning handed it to the re-
 
 74 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 spondent, who read it over and signed it ; and that he 
 knows nothing of the interlineation or how it was made, 
 as he left Easton the day the charge was signed by the 
 respondent. 
 
 This is the only evidence adduced in.. support of the 
 accusation ; and Mr. Bellas on his cross-examination, says 
 he has not sufficient recollection of the charge of the court 
 to say that the judge did, or did not, use the language in- 
 terlined, in his charge to the jury. Taking it up on this 
 evidence alone, what is there in it ? That upon subsequent 
 perusal, the respondent discovered that a sound legal pro- 
 position which he had laid down to the jury, had been 
 omitted in taking down the charge; he therefore inter- 
 lined it in the charge. But when he did it whether be- 
 fore or after it was filed by no means appears. The law 
 will presume it was done before it was filed ; because that 
 is the natural presumption, and the presumption in favor 
 of innocence. For you will recollect the charge here is 
 FORGERY ; and yet we are told that the character of the 
 respondent is not assailed. 
 
 But when you come to consider the evidence of Capt. 
 D. D. Wagener, who was one of the jurors in the cause ; 
 and Mr. James M. Porter, who was the counsel of Mr. 
 Bellas ; all doubt or difficulty on the subject vanishes : 
 and we have no occasion to call in presumptions, or even 
 the bulwark of character to aid us in our defence. Capt. 
 Wagener tells you that he was a juror in the cause ; that 
 Judge Porter did use words in his charge to the jury, to 
 the effect of those interlined ; and he tells you the reasons 
 why he feels positive that the respondent did so charge 
 the jury. He says, that after having heard the evidence, 
 he and Mr. John Horn had adopted the idea that the 
 plaintiff ought to recover, as he had not deceived the de- 
 fendant ; and that the defendant had bought the patent 
 right in controversy at his own risk : and that when they 
 retired to their room to deliberate, after receiving the 
 charge of the court, he remarked to Mr. Horn, that Judge
 
 IMPEACHMENT OF JUDGE PORTER. 75 
 
 Porter had taken the same views upon that part of the 
 case, that they did ; and he adds, that it was upon that 
 very ground the jury founded their verdict. 
 
 Again ; If you examine the issues which had been 
 joined, and the points propounded to the court ; you find 
 that the matter interlined had a direct relation to the 
 cause ; and surely no one will say that it is not sound law ; 
 and thence it must fairly be inferred, that it was the sub- 
 ject matter of charge. So much then for the proof that 
 this language was actually used to the jury. Now, as to 
 the time and manner in which they were interlined. Mr. 
 J. M. Porter says, that it was the first cause he tried in 
 Northampton county ; that he labored with zeal for his 
 client, and fought every inch of ground ; that he took 
 notes of the charge as it was delivered ; that on the same 
 evening he transcribed it and on the next morning handed 
 it to the respondent, who looked over it hastily, signed it, 
 and gave it back again to him ; that before the term had 
 ended, he went off to the West-Chester court : and previous 
 to leaving Easton, he handed the charge of the court to 
 General Spering, the prothonotary. On his return to 
 Easton in June following, he was informed that the bills 
 of exceptions drawn by Mr. Bellas, were too informal to 
 be signed. That he then procured the charge of the court 
 from the prothonotary, drew up the bills of exceptions, 
 attached them and the charge of the court together ; and 
 at the ensuing August Term, handed the whole to the re- 
 spondent ; who then examined them, corrected any errors 
 which he discovered so as to make the papers conform to 
 the truth of the case; and then signed the bills of excep- 
 tions ; and they were then for the first time, as the re- 
 spondent believed, filed of record. So far, as regarded the* 
 bills of exceptions, such was the fact ; and how could the 
 judge suppose, as all the papers were appended together, 
 that part had been filed and part had not ? From all the 
 circumstances we have a right not only to infer, but posi- 
 tively to say, that the language interlined was actually
 
 76 FORENSIC SPEECHES OP DAVID PAUL BROWN. 
 
 used to the jury ; and that the judge was ignorant of the 
 paper having been filed, when he made the interlineation. 
 But had he even known it ; he did no more than the 
 Supreme Court, on a suggestion of diminution of record, 
 would have compelled him to do. He but placed the 
 truth upon the record. Truth would never tarnish the 
 books of heaven itself. The judge was bound to hold 
 the scales of justice even between the parties ; and he 
 could have had no motive but that of perfect honesty in 
 doing what he did. 
 
 But it is said, that the letter of Mr. Porter to Mr. Bel- 
 las, says " the judge's conduct was improper." You will 
 remember that this letter was written nearly eight years 
 since ; when a partial feud existed between Mr. Porter 
 and his brother, the respondent. Mr. Porter was a young 
 man just making his debut in Northampton county: it 
 was his first cause there : he and his colleague, tyros as 
 they were in the profession, had gone through a long 
 and a fierce contest with veterans of the bar : they had 
 been defeated : and under the warmth and feeling of the 
 moment he wrote the letter, which is here introduced by the 
 prosecution ; and serves, to use the beautiful and figura- 
 tive language of a distinguished author, " like a moon- 
 beam on a thunder cloud, to make the storru more dread- 
 ful." But what does this letter the writing of which was 
 far more commendable than its dishonorable publication 
 say? That "the conduct of the judge in putting it (the 
 interlineation) there, was highly improper." This declara- 
 tion is made, as I say, under the influence of irritation 
 and excitement; and the witness "expressly states "in 
 the belief on his part, that the judge knew the charge 
 had been filed." Upon mature reflection, he says now, 
 that he believes he did Judge Porter injustice in that 
 supposition, and in the consequent charge of impropriety. 
 Shall Mr. Porter not be permitted to correct his errors ? 
 Must he, like Hugh Ross and others (and I beg his pardon
 
 IMPEACHMENT OF JUDGE PORTER. 77 
 
 for even naming him with them), grow older and grow 
 worse. 
 
 As to the second branch of accusation ; I shall confine 
 my remarks principally to the allegation on our part, that 
 the marginal note to be found on the bills of exceptions 
 was according to the truth of the case; because it is per- 
 fectly clear, that the note was placed there before the re- 
 spondent signed it, and of course, before it became a 
 record. Mr. Porter tells you that the bills of exceptions 
 were handed to the respondent at August Term, 1818 ; 
 and when he next saw them, they were signed, and con- 
 tained the marginal note in question ; and the marginal 
 note, and the other corrections, must have been put on, 
 in the interim. This is also confirmed by the allegation 
 in the letter, of which, no doubt, much will be said. He 
 there acknowledges the receipt of Mr. Bellas's letter 
 (dated 22d August, 1818), a few days after its date ; and 
 says: "the bills of exceptions, were signed at -August 
 court, a few days before the receipt of Mr. Bellas's letter. 
 The August Term, 1818, commenced upon the 17th day 
 of the month : The letter might take three days or a 
 week to go from Sunbury where Mr. Bellas lived to 
 Easton ; and the bills of exceptions may have beeii signed 
 during the first week of the court." 
 
 This is all the evidence we have, as to the time when 
 the marginal note was placed there, and when the bills 
 were signed. 
 
 Then on the subject of the truth of the fact stated in 
 the note Mr. Bellas only says : " he has no knowledge 
 of any such consent, as is there stated, and he feels confi- 
 dent no such consent was given;" and here permit me to 
 say, that in this Mr. Bellas is unsupported by any witness 
 whatever, and is contradicted first by the record, and 
 secondly by the evidence of Major Hays and Mr. Porter. 
 !N"ay, the strong presumption to be drawn from the whole 
 of Mr. Bellas's own testimony, taken together, is, that he 
 is wrong when he makes that declaration: because he
 
 78 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 says, that he and his counsel were willing that the whole 
 correspondence should go to the jury, and that the reason 
 why the third exception was taken, was, that the op- 
 posite counsel would not so agree. But when he subse- 
 quently offered on his part, the remainder of the corre- 
 spondence, we find it admitted not without objection, but 
 by consent after objection taken and withdrawn ; and 
 even letters produced by the plaintiff without notice-; and 
 unproved copies received where the originals could not be 
 had. According to this statement alone, how do the facts 
 strike every member of this court ? why, that certain 
 letters passing between Henry L. Clark and Hugh Bellas, 
 were offered in evidence. They were reciprocally objected 
 to. The first one admitted, is excepted to by the defend- 
 ant ; not for want of proof of the handwriting, but be- 
 cause it was only part of the correspondence. Subse- 
 quently the defendant offers certain other of those letters 
 in evidence, to which the plaintiff objects, because they 
 were not proved. Then, how could they be admitted in 
 evidence? Mr. Bellas says he did not prove them, and 
 that he was willing to waive all objection, provided the 
 whole correspondence went to the jury. It ( did go! It 
 could go in no other way but by consent ; and if there 
 were no actual and absolute declaration on the part of 
 the defendant that the third bill of exceptions was with- 
 drawn, could the court do otherwise than suppose such 
 was the intention of the parties, and such their under- 
 standing. But the testimony of Major Hays and Mr. 
 Porter, puts the matter beyond doubt. The former tells 
 you that letters from Bellas to Clark, and from Clark to 
 Bellas, were offered in evidence ; that the attorneys on 
 both sides disputed the letters ; that they had a very hard 
 argument, and after they spent a good deal of time, the 
 judge said, " I think, gentlemen, you had better let all the 
 letters go to the jury." Finally they agreed, and he thinks 
 all the letters and papers went to the jury. Mr. Porter 
 tells you, that when the letter from Bellas to Clark (dated
 
 IMPEACHMENT OF JUDGE PORTER. 79 
 
 10th December, 1813) was offered in evidence ; the court 
 compared the handwriting: with that of Mr. Bellas to the 
 article of agreement which had been already proved 
 and said it might go to the jury for them to compare it ; 
 that Mr. Scott and he then opposed the admission of the 
 letter in evidence, on the ground of its being only a* part 
 of the correspondence. After argument, the court ad- 
 mitted the letter, and the third bill of exceptions was 
 taken. "While this matter was before the court, Mr. Bel- 
 las instructed his counsel, and they so informed the 
 court, that if the other side would agree to admit the 
 whole correspondence, he had no objection to admit this, 
 as part of it. "When the plaintiff closed his rebutting 
 proof, of which that letter was part, the defendant's coun- 
 sel offered in evidence, some letters from Clark to Bellas. 
 I presume they were those of the 2d November and 2d 
 December, 1813, and 15th and 23d August, 1814, men- 
 tioned in the bill of exceptions. To the admission of 
 these the plaintiff's counsel objected ; and Mr. Sitgreaves 
 charged the defendant with blowing hot and cold ; first 
 in denying Clark's authority; and then in endeavoring to 
 make his letters prejudice Major Hays. The judge then 
 advised both sides, to waive all captious objections and 
 admit the correspondence , and that after some observa- 
 tions by the counsel as to who was in the right as is not 
 uncommon, they agreed on both sides to admit the whole 
 correspondence, and it was accordingly given in evidence. 
 It is true, Mr. Porter says, there was no express declara- 
 tion on the part of the defendant, that this third bill of 
 exceptions should be withdrawn ; but the assent to the 
 proposition by the court, was a waiver of all exception in 
 relation to that part of the case. Shall the party be en- 
 titled to the benefit of the agreement to admit the whole 
 correspondence, and yet hold fast to his exceptions as to 
 part ? Certainly not ! But it is enough for us, that the 
 court understood such to be the intention of the parties ; 
 and if so, even if in error, there can be no impropriety
 
 80 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 imputed to the respondent for stating the fact as he 
 understood it. 
 
 The court will remember, that the charge under this 
 article, is forgery ; that it imputes to the honorable re- 
 spondent who for three score years has maintained an 
 unsullied reputation whose character, it has been admit- 
 ted, is unimpeachable and of whom the counsel for the 
 managers, has declared in relation to this prosecution, 
 " that there is not a single charge that imputes dishon- 
 esty" to him : I say, that this charge imputes to him 
 "the false making or alteration of a writing, with intent 
 to defraud another," which is the legal definition of for- 
 gery. How this charge is to be reconciled with the 
 declaration that " there is no imputation of dishonesty," 
 remains for the learned counsel to show. But this we 
 know ; that where there could be neither motive nor 
 object for so doing, it would require proof, strong, clear, 
 and undeniable upon which no suspicion could cast a 
 shade to convince any tribunal that an honest man, 
 who maintained a high and respectable standing in the 
 community, would commit a crime, which betokens a 
 total dereliction of moral rectitude, and would consign its 
 perpetrator to infamy for life. There can be no stronger 
 breast-plate than a heart untainted. 
 
 The seventh article contains two branches of accusation. 
 The first branch has relation to the two alleged cases of 
 Schwenk, administrator of Schwenk, v. Ebert in which 
 it is said : " the respondent neglected or refused to file 
 his opinions, although required so to do." It turns out 
 that there was but one case of that name in Northamp- 
 ton county, and on referring to the evidence, how do the 
 facts appear before this court ? 
 
 It appears that an appeal had been taken from the 
 judgment of a justice of the peace on the 7th of March, 
 
 1822, which was not tried in court until the 1st of May, 
 
 1823. Between the time of taking this appeal and its 
 being tried, the Legislature passed the act of 1st of
 
 IMPEACHMENT OF JUDGE PORTER. 81 
 
 April, 1823, repealing the ninth section of the act of 
 1820, which altered the rule on the subject of costs, in 
 cases of appeal. A number of questions arose under 
 these acts, in the various cases tried in Northampton 
 county ; and it would rather seem from the evidence, 
 that when the judge gave his opinion in this case a con- 
 versation took place, in which nearly all the members of 
 the bar participated, in which it was stated, that it was 
 desirable that the opinion of the Supreme Court upon 
 the construction of these acts, should be taken. In that 
 conversation, it seems to have been agreed, that a case 
 should be taken up which would embrace all the ques- 
 tions which had arisen. In the course of this conversa- 
 tion, a request was made of the judge to file his opinion 
 in this case; but it seemed agreed that the filing it in 
 any case, which would carry the question fairly up, 
 would answer. The case of Grace v. Altemus, decided 
 shortly after, did embrace all the points which would be 
 likely to arise under those acts ; and in that case Judge 
 Porter delivered and filed an elaborate opinion ; and the 
 case was removed to the Supreme Court, where it is yet 
 pending: No subsequent request ever was made of the 
 respondent, to file his opinion in the case of Schwenk v. 
 Ebert ; had such a request been made, it would have 
 been filed ; although for obtaining a rehearing, it was 
 not necessary, as all the facts appeared upon the record. 
 There,, therefore, could have been no motive for with- 
 holding it; nor was any injury sustained: because even 
 Mr. Charles Davis, himself, says that his client immedi- 
 ately abandoned all idea of removing the cause to the 
 Supreme Court. 
 
 I will merely add, that the utmost that is made of this, 
 is a mere oral request. The language of the act is not 
 request, it is require. The judge was not required here, to 
 file his opinion ; there was a mere intimation given, that 
 the party might perhaps ask a review of the decision, in 
 which case the judge was requested to file his opinion. 
 
 6
 
 82 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 This review never was had ; nor was the respondent's at- 
 tention ever again even called to the case, until it was 
 made a matter of accusation against him, by Mr. C. 
 Davis last winter. It is a miserable plan for the young 
 to attempt to build their hopes of eminence or elevation 
 upon the prostration of the aged or distinguished. It is 
 generally as unsuccessful as the snail's attempt to destroy 
 the beauty of the statue ; and has about as worthy a 
 motive for its origin, as the fable imputes to that reptile. 
 The second branch of this article, is most satisfactorily 
 refuted by the respondent's answer to it, which has in 
 every respect been sustained by the evidence. (Here Mr. 
 Brown read the answer.) The actions were instituted on 
 joint bonds against the administrators of the surety, and 
 were tried the last time in 1820 ; at least, they were to 
 be considered as joint bonds under the decisions which 
 had then been made : and in accordance with those decis- 
 ions, the respondent charged the jury in favor of the de- 
 fendant. Was the charge right, or was it wrong? I care 
 not what the decisions of the Supreme Court have been 
 since ; 1 know what the decisions uniformly were prior 
 to 1823, when the case of Geddes v. Hawk was deter- 
 mined, giving us the new law on the subject. My inquiry 
 is as to the motive. Is there anything to impeach his 
 motives in charging ? It is sought for in vain in the 
 evidence! It has no existence even in the charge! Shall 
 we be told, because a different determination has since 
 been had in your Supreme Court ; that therefore, the re- 
 spondent has been guilty of a misdemeanor in office? 
 Sir, the laws of Draco and Caligula, were humane com- 
 pared with such a construction of ours. Be it remem- 
 bered too, that Mr. Binney, who was consulted by the 
 plaintiff, concurred in opinion with the respondent. But 
 the allegation is, that the respondent did not file his 
 charge. We say, he never was requested so to do, or if 
 requested never heard the request, which is about the 
 same thing. What is the evidence on this subject ?
 
 IMPEACHMENT OF JUDGE PORTER. 83 
 
 Mr. King thinks the point in the case was, whether the 
 bonds were joint or not ; that perhaps there might have 
 been others, but that he does not recollect them ; that the 
 court charged the^jury, that the bonds were joint, and 
 therefore the plaintiff could not recover ; that it is fully 
 impressed upon his mind, that the judge was requested 
 to file his charge, but whether that request was made by 
 himself, or by his colleague, Mr. John Evans, he cannot 
 say. That having directed a writ of error to be taken, 
 he requested Mr. Binney not to issue the writ, unless he 
 thought the opinion wrong. That on examining the 
 records, he did not find the opinion filed. At the suc- 
 ceeding term, he or his colleague, Mr. Evans, mentioned 
 the matter to the court. Judge Porter did not seem to 
 have a distinct recollection of the application having been 
 made, and desired that the matter might go off until Mr. 
 Smith would be there. That at the following court, Mr. 
 Smith denied that any application had been made to file 
 the charge; and that Judge Porter having no recollection 
 himself of the request to file the charge, refused to do so, 
 contrary to Mr. Smith's consent. That upon consulting 
 Mr. Binney afterwards, Mr. B. said the charge of the 
 court was correct ; and the parties abandoned all idea of 
 taking the case up. 
 
 The testimony of Mr. Daniel Helfrich, the plaintiff in 
 the suit, amounts to nothing ; for in truth, according to 
 his own account, he knows nothing, except that he lost 
 his cause ; and he seems to think that the respondent was 
 the occasion of it. 
 
 The attorney general, Mr. Smith, to whose cool, de- 
 liberate and candid testimony, I have more than once 
 had occasion to refer with pleasure, gives us a very clear 
 and distinct account of this matter. He is able to give 
 you all the particulars in relation, as well to the nature 
 of the actions, as to the defence taken, arid the facts 
 which transpired at each trial. He tells you that there 
 were two points made : 1st. That the bonds were joint,
 
 84 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 and the defendant's intestate, a mere surety; and 2d. That 
 the plaintiff' had given time to Knerr, the original debtor, 
 without the assent of Seip. From his evidence, it must 
 be clear, that no request to file the charge was made. He 
 says he did not hear it ; that his opportunities of hearing 
 were at least as good as those of the respondent ; and 
 what induces him to believe it could not have been made, 
 is the fact, that when he cited the authority from 2d 
 Browne's Reports, Mr. J. Evans gave up the case, saying, 
 if that be the law, our case is lost ; and at the ensuing 
 May Term, 1821, Mr. Evans appealed to his liberality, 
 and requested him to consent to the charge being filed. 
 Mr. Smith refused, and the respondent not recollecting 
 either the request or the language used in his charge, de- 
 clined doing anything except by consent. Mr. King will 
 not say the respondent heard the request. He is uncer- 
 tain as to who made it, if it was made. Mr. Smith says 
 he did not hear it, and he thinks he must have heard it, 
 had it been made. The respondent says he did not hear 
 it and the subsequent conversation of the three counsel, 
 resulting in Mr. Smith's refusal to consent all show 
 that there could have been no legal right existing to 
 require it. What said Mr. Evans? He appeals to the 
 attorney general's liberality, which he need not have 
 done, had it not been a favor asked of him. 
 
 Some of the jurors, it seems, had, in one of Mr. Evans's 
 odd humors, been subpoenaed to attend at the May Term, 
 1821, to inform the court what had been given them in 
 charge, in the December preceding. The jury are to be 
 the Magnus Apollo, it would seem, throughout this busi- 
 ness. 
 
 I dismiss this subject with observing, that the facts 
 charged, have not been substantiated ; and that if they 
 had, they exhibit no wilful violation of duty, no corrupt 
 or evil motive. 
 
 The eighth article has been abandoned by the prosecu- 
 tion.
 
 IMPEACHMENT OF JUDGE PORTER. 85 
 
 The ninth article embraces all the remaining matter ; for 
 the other articles are but specifications of the general 
 charge contained in the commencement of this : " that the 
 respondent threatened, intimidated, and insulted his asso- 
 ciate, Justice Cooper, on the bench in open court." 
 
 [Mr. Brown here read the article.] 
 
 This tribunal, permit me to say, does not sit as a court 
 of etiquette, to regulate matters of form and punctilio ; 
 to settle the vain and empty, and if you please, the un- 
 courteous, or even disgraceful disputes, between men in 
 high stations. But the respondent claims, in the subject 
 matter of this accusation, to have acted with strict cor- 
 rectness of intention, and pure benevolence of motive. 
 And if a due regard for mercy is an insult to an obdurate 
 associate judge ; then indeed is the respondent guilty ; 
 and he will be found to be the first judge, that ever was 
 condemned for possessing the dearest attribute of justice. 
 
 Of what kind of stuff must this worthy associate (to 
 whom it would seem the respondent should in all things 
 submit himself with due humility) be made, who with a 
 dying boy, an aged grandmother, and a weeping mother 
 before him circumstances which should almost have 
 softened a heart of adamant pertinaciously insists that 
 the boy shall lie in jail. He wants time day after day 
 to make inquiries, and talk the matter over with Dr. 
 Swift ; in the meantime, says the respondent, the boy 
 may die, and we will then discharge him but to be 
 buried. The associate at length agreed to discharge one ; 
 which he knew, or ought to have known, could not be 
 done ; as it was impossible to discharge the one without 
 the other. Judge Cooper should remember, that he gives 
 twice who gives early ; and that reluctant charity has but 
 little to recommend it over actual refusal. 
 
 That Judge Cooper is in error in this matter, is evi- 
 dent, as well from the other evidence, as from his own 
 testimony. He admits that he was in a passion; that 
 passion too, did not vanish, when he took occasion to
 
 86 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 vanish from the court house as he saw Judge Wagener 
 coming down the street. He assails him out of court ; 
 tries to prejudice his mind, and prevent his joining in the 
 legal, humane and merciful course recommended by the 
 president. But to the honor of Judge Wagener, be it 
 told ; that, disdaining the cold hearted persuasions of 
 Judge Cooper, he came into court, and concurring with 
 the respondent, discharged the boys. The act is proud 
 and honorable in its aspect, and calculated to redeem the 
 character of the administration of justice, from the im- 
 putation of cruelty, with which Judge Cooper would 
 have stained it. 
 
 It is exceedingly doubtful from the evidence, what the 
 expression used by Judge Porter to Judge Cooper, was, 
 whether; "if the boy dies in jail, his blood be on your 
 head," or " if the boy dies in jail, I wash my hands of his 
 blood." Be it which it may, it was provoked ; as well by 
 the inhuman conduct, as by the aggravating and irri- 
 tating manner of Judge Cooper ; and it but bespeaks the 
 honest hearted integrity of a man, too noble to disguise 
 the-ordinar}'- feelings of nature : and for this, surely, he is 
 not to be arraigned as a criminal. 
 
 What then of this bushel of chaff remains ? 
 
 Article tenth. [Reads the article.] An action of eject- 
 ment between Witchell, plaintiff, and German and Levers, 
 defendants, is tried a number of legal questions arise in 
 the progress of the trial. Judge Porter, the president 
 judge, who has been a lawyer for forty years, delivers 
 the charge of the court. Judge Cooper, a practitioner of 
 medicine who perhaps understands something of frac- 
 tured bones and heads is on the bench during the trial, 
 and assents to the charge delivered by the president. The 
 jury fly in the face of the charge of the court ; and the 
 associate declines interfering when an application is made 
 for a new trial. The counsel behave indecorously to the 
 court ; and Judge Porter reprimands them for their be- 
 havior. Judge Wagener, the other associate, is sent for ;
 
 IMPEACHMENT OF JUDGE PORTER. 87 
 
 and comes into court, and concurs with, the president in 
 granting a rule to show cause why a new trial shall not 
 be granted. The case is subsequently argued, and Judge 
 Cooper assents to granting a new trial, assigning as his 
 reason for so doing, that he did not wish to give an opin- 
 ion unfavorable to Mr. Levers. 
 
 When, or where have we heard of the respondent ever 
 founding his opinion upon the effect it was to have on an 
 individual ? No, his eye has ever been steady to justice 
 knowing no distinction of persons punishing what was 
 wrong, and approving what was right, without regard to 
 the actors in the scene. 
 
 As to the second branch of this accusation, it can only 
 be heard, as this court haye decided, when taken in con- 
 nection with the respondent's answer. If the respondent's 
 answer is to be used for any purpose, it must be used for 
 all ; and taken altogether, it shows that Judge Cooper 
 deserved, upon the occasion alluded to, more than was 
 said to him. It appears that Judge Porter was holding 
 the court alone ; that the counsel concerned were about 
 adjusting a cause upon the trial list; when in comes doc- 
 tor Judge Cooper after, perhaps, a morning round 
 among his patients and without knowing what the 
 court was doing ; but disposed to display a great deal of 
 zeal for industry ; very insolently demands of the re- 
 spondent, why he did not attend to the trial list. This, 
 sir, was in effect charging the respondent who had been 
 assiduously attending to his duty with neglecting the 
 public business; and the charge made too, by one who 
 only made his appearance in court, as the intervals of his 
 own vocations gave him time to look in upon the court, 
 and take his temporary station on the bench. Why, sir, 
 had he been a master workman, and the respondent his 
 mere journeyman, he could not have assumed more au- 
 thority over him. What was the respondent to do under 
 these circumstances ? Was he to humbly submit himself 
 to Judge Cooper ; and mutely set about obeying his com-
 
 88 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 mands, no matter how injurious to the public business 
 then transacting ? Or was he to act as an honorable, high 
 minded officer, entitled to at least an equal voice in the 
 administration of justice ? He acted upon this occasion, 
 as he usually acts with propriety and becoming dignity. 
 He mildly informs Judge Cooper that " he would thank 
 him for less of his dictation ;" and the respondent informs 
 you (and Judge Cooper cannot deny it) that he (Cooper) 
 apologized for his rudeness. I know that Judge Cooper, 
 and his worthy coadjutor, Henry Jarrett who, although 
 an old man, is but a young lawyer endeavor to give 
 this matter a somewhat different coloring. Who, pray, 
 constituted Henry Jarrett a judge of manners? and 
 who, if there even were incivility or rudeness proved, 
 constituted the members of this court judges of manners? 
 But the truth to be collected from the evidence, and the 
 known urbanity and courteousness of Judge Porter's be- 
 havior, bear me out in the statement which I have given 
 you of this transaction. Judge Cooper says he was 
 abashed. I hope he was, for if so, it shows he is yet 
 capable of being convinced of error, and evincing a be- 
 coming regret for outraging the feelings of others. 
 
 The eleventh article charges the respondent with im- 
 proper conduct to Judge Cooper, while the case of Reese 
 v. Sigman was trying in the Common Pleas of Northamp- 
 ton county, at January Term, 1822. In the first place, 
 permit me to say, that the testimony of Dr. John Cooper 
 and Hugh Ross the only witnesses for the prosecution 
 on this article do not bear out the facts as charged 
 against the respondent. The amount of their allegations 
 is that Judge Porter and Judge Wagener, adopted one 
 view of the case, and Judge Cooper another. That the 
 two, being a majority of the court, the opinion delivered 
 by them was " the opinion of the court ;" and that when 
 Judge Cooper said he was of a different opinion, Judge 
 Porter observed, that what he had delivered was the 
 opinion of the court. Ross says, Judge Porter's manner
 
 IMPEACHMENT OF JUDGE POKTEK. 89 
 
 in making this observation was angry ; such as a superior 
 would use to an inferior. Judge Cooper, although no 
 doubt he and Ross have compared notes on this subject, 
 is more cautious. He says, "I think the judge rather 
 in an imperious tone in a manner that excited a little 
 awe on my mind observed, that it was the opinion of 
 the court." I should be cautious of giving much credence 
 to the evidence of these witnesses as to manner, were 
 there no other proof. We have seen them throughout 
 this cause, detailing matters of impression, seen through 
 the jaundiced medium of their own biassed feelings ; and 
 in such matters it would be dangerous to rely on either 
 of them. 
 
 But Colonel Ihrie, who was concerned for the defend- 
 ant, Abraham Sigman who was her son and agent, and 
 attending to the cause for her ; and Judge Wagoner, who 
 was on the bench during the trial, and participated in 
 the proceedings ; all tell you that there was nothing offen- 
 sive, indecorous, or improper in the manner of Judge 
 Porter to Judge Cooper; and that had there been any- 
 thing of the kind, they must have observed it. Divest 
 this matter of its false coloring, and the charge. against 
 Judge Porter is, that he had no right to deliver the 
 opinion of a majority of the court contrary to that of 
 Judge Cooper ; in other words, that reversing all the 
 principles upon which our government is founded, the 
 majority shall submit to the minority, and that Judge 
 Cooper's ipse dixit is to be the law in Northampton 
 county, no matter what may be the opinion of the two 
 other judges. 
 
 The twelfth and last article of impeachment has been 
 properly abandoned, as being too loose, vague and uncer- 
 tain ; and also, perhaps, because all the evidence that 
 could have been produced under it, has been embraced 
 under the three preceding ones. 
 
 In taking a retrospect of this cause, the circumstance 
 cannot well have escaped the attention of this court, that,
 
 90 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 with a few solitary and honorable exceptions, the wit- 
 nesses on the part of the prosecution have come forward 
 under a marked bias of feeling, which has disclosed itself 
 in almost every stage of the proceeding. 
 
 Judge Cooper, Hugh Ross and Henry Jarrett, have 
 been ringleaders of this prosecution in Northampton ; the 
 first, the party preferring the complaint in at least four 
 of the articles of accusation and impeachment ; the sec- 
 ond, disappointed in the decision of several suits ; of a 
 naturally envious and jealous disposition, and always 
 " hating that excellence he cannot reach," indulging a 
 rancorous malignity for years against the respondent 
 making and treasuring up jaundiced notes and statements 
 of transactions which escaped the observation of others, to 
 gratify the foulest feeling that disgraces the human heart. 
 The third, the messenger of the league; and in regard 
 to all the evidence he has given, I may make one passing 
 remark, and leave him to that infamy he has so richly 
 merited. By comparing his evidence with the articles of 
 impeachment, you will find that he has just taken up the 
 articles to each matter to which he has testified, and 
 sworn exactly to the matters charged ; but when cross- 
 examined, as to time or circumstances, he knows nothing; 
 and what is rather singular, no one of the witnesses on 
 the part of the prosecution or defence, saw him in court 
 at the times the transactions should have occurred to 
 which he has testified. From this, and the known char- 
 acter of the man, it is fair to presume, that the first 
 knowledge he ever had of the matters to which he testi- 
 fied, he derived from the articles of impeachment them- 
 selves ; more especially as he was in attendance last year 
 when the committee of inquiry sat, and never testified to 
 a wor"d of the kind. Much has been said of the respecta- 
 bility and so forth of Judge Cooper. For aught I know, 
 he may be considered a respectable man ; but surely it 
 can add nothing to the respectability of any man's char- 
 acter to find him the fellow laborer, associate and boon
 
 IMPEACHMENT OF JUDGE PORTER. 91 
 
 companion of Jacob W. Seitzinger, Hugh Ross and Henry 
 Jarrett ! 
 
 Mr. George Stroud and Mr. Charles Davis, were both 
 professionally disappointed : and like many others of their 
 profession, would endeavor to cast all the odium or fault 
 of their want of success, upon the judge who decided 
 against them. v 
 
 Reese need scarcely be mentioned, but he was a party in 
 Reese v. Sigman, Commonwealth v. Mary Everhart, and 
 Everhart v. Reese ; poor fellow, he is calculated to do 
 little harm to any one, no matter what his wishes may 
 be. 
 
 JBeidleman and Haberacker, are the two respectable 
 Allentown gambling house keepers ; they yet feel the lec- 
 ture they so properly received. 
 
 Hugh Bellas comes before you, as I have already had 
 occasion to observe, with all the feelings of a losing party ; 
 and has given vent to his embittered feelings to such an 
 extent, as to leave no room for candid and impartial re- 
 collections of what actually did take place. 
 
 Even Mr. King, who is not to be named with the others, 
 has had his professional disappointments and personal 
 differences. 
 
 Against this evidence we have adduced a host of candid, 
 dispassionate witnesses ; who have satisfied you, I trust, 
 as to every matter of charge, which was susceptible of 
 refutation, or necessary to be refuted. 
 
 And in conclusion : I put the character and public 
 services of the respondent from his early youth, when 
 he was found in his country's ranks fighting for that lib- 
 erty we now enjoy, to his present venerable age during 
 all which period he has been found without spot and with- 
 out blemish in opposition to charges thus made", and 
 thus attempted to be sustained. They who would grap- 
 ple with him, grapple with a brazen wall. He has dis- 
 covered throughout his judicial career nay, throughout 
 his life a steadiness of purpose and an inflexible integ-
 
 92 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 rity which never could be shaken ; and with perhaps a 
 solitary exception that courteousness and urbanity of 
 manners which is sworn by several of the witnesses 
 to be his characteristic has never been departed from in 
 sixteen years. What other judge in the State could 
 stand a similar inquiry, with equally triumphant success. 
 A firm and inflexible judge, is a blessing not to be lightly 
 prized ; for if he, who is to administer the laws of the land 
 is to be a pliant tool, have an eye to your own rights ! 
 Once establish this idea, and you infuse into the bosom 
 of society a deadly poison, which carried throughout 
 your system, relaxes, enfeebles and ultimately destroys 
 the whole. Have a care ! The decision of this cause is 
 not a mere matter between the respondent and his per- 
 secutors. Its effects will be felt upon society at large. 
 Offer up the respondent on the altar of vengeance, and 
 sate the prosecutors in their desire of his destruction ; 
 and mark me, less pernicious would be the consequences 
 to the respondent and his family, than would be the re- 
 sult upon the country and the world, which now look 
 on.
 
 CASE OF THE 
 
 JOURNEYMEN TAILORS. 
 
 COMMONWEALTH v. JNO. M. MOORE AND TWENTY-FOUR 
 OTHERS. 
 
 In the Mayor's Court for the City of Philadelphia, Sep- 
 tember Sessions, 1827, Hon. JOSEPH REED, Recorder, 
 presiding. 
 
 CHARGE CONSPIRACY. 
 
 The indictment in the ahove case contains eight counts, 
 and under each count numerous overt acts are set forth. 
 The following argument, however, sufficiently explains 
 the points of the case, to meet all the requirements of 
 the intelligent reader, without any prefatory remarks. 
 
 For the Prosecution. 
 JOHN WURTS, ESQ., JOSEPH R. INGERSOLL, ESQ. 
 
 For the Defendants. 
 WILLIAM B. REED, ESQ., DAVID PAUL BROWN. 
 
 (93)
 
 94 FORENSIC SPEECHES OP DAVID PAUL BROWN. 
 
 SPEECH IX 
 JOURNEYMEN TAILORS' CASE 
 
 WITH DEFERENCE TO TO UR HONORS: 
 
 Your time and attention have been so largely drawn 
 upon, iu the investigation necessarily incident to the trial 
 of this cause, that it can scarcely be expected, gentlemen 
 of the jury, that you should accord to me a very atten- 
 tive, much less an indulgent hearing; but I do expect 
 although I found rny claim rather on your liberality 
 than my own merits I do expect a patient and an impar- 
 tial hearing. The importance of the case, upon which 
 you are called to decide, requires it ; the interests of the 
 conflicting parties, which are committed to your charge, 
 solicit it ; the laws under which we live and of which 
 you are the well approved ministers, demand it ; and the 
 solemn obligation which you have assumed an immortal 
 tie, which at once binds you to this world and to the 
 next imperiously enforces it. In thus adverting to your 
 duties, the advocate is, not altogether involuntarily, re- 
 ferred to the discharge of his own. And I regret much 
 to add that, however safely I may speak in your behalf 
 however confidently rely upon the fulfilment of your 
 duties, I am neither willing, nor do I feel competent to 
 say without assuming that to which I am not entitled 
 that I can so securely speak of my own. The case 
 upon which you are to determine is, notwithstanding 
 all the efforts of the eloquent counsel opposed to us to 
 establish the contrary, one of great magnitude and
 
 JOURNEYMEN TAILOES' CASE. 95 
 
 importance. Its consequences are not to be decried, 
 nor its character degraded. You are not to be told that 
 the result of this case will be nothing more than the im- 
 position of a trifling, or perhaps a nominal penalty, upon 
 these unfortunate and oppressed men. Whatever may 
 be the penalty, it is unquestionably to be estimated with 
 reference to the situation and circumstances of the indi- 
 viduals upon whom it is to fall ; and we request you to 
 remember, what it appears has been forgotten by the 
 counsel, that it is " the last hair that breaks the camel's 
 back." Suppose the pecuniary penalty which the gentle- 
 man has thought proper to affix to the alleged oifence, 
 were even unimportant ; are there no other penalties ac- 
 knowledged than those which reach the purse? Is it no 
 penalty to trample on a fallen man ? Is it no penalty to 
 taunt the feelings of a lacerated and bleeding heart ? Is 
 it no penalty to take from the poor man that which is 
 the pride of the rich as well as the poor the prince and 
 the peasant his jewelled reputation ? To take from his 
 children the priceless inheritance of a good name to 
 brand him with a mark as indelible as that of Cain, 
 and to stigmatize those who shall follow him with in- 
 famy are these no penalties ? When the gentleman 
 looks to the pecuniary imposition, it may, indeed, as 
 he said, be unimportant ; but when he connects wounded 
 feeling and the destruction of reputation, dearer far than 
 life, and to the poor and the humble doubly dear; be- 
 cause with them there is no cure for a bleeding heart in 
 the weight of the purse : when the cause is considered 
 in these more extensive views, allow me to say, the pen- 
 alty so lightly anticipated, is scarcely to be borne. Let 
 us not then, have this matter undervalued. 
 
 Without treating any part of this prosecution either 
 with indifference or want of candor, allow me to say, 
 that the levity assumed on the part of the prosecution, 
 is no unusual mode of crying " peccavi" in a cause. 
 " We have," say they, " brought a case before you it
 
 96 FORENSIC SPEECHES OF DAVID PAUL BRO\VN. 
 
 has occupied your attention, and estranged you from 
 your families and your business for an entire week ; but 
 it is of little consequence, the punishment will be 
 nothing; jump at once to a conclusion, favorable, nomi- 
 nally favorable to the prosecutors and we are content 
 justice is satisfied." This is, indeed, a happy method 
 of sporting with your time, your duty, your consciences, 
 for the benefit of the commonwealth. If the case be 
 thus worthless, thus contemptible, its objects so mean 
 and disproportionate, why has it been originally wrought 
 up into such a storm ? "Why have they thus, 
 
 " ocean into tempest toss'd 
 
 To waft a feather, or to drown a fly." 
 
 "With these preliminary remarks, let us address our- 
 selves more immediately to the subject before us. 
 
 This is a charge of conspiracy, and may be divided, as 
 may most subjects, submitted to this tribunal, into, 
 
 First, Matters of Law. 
 
 Secondly, Matters of Fact. 
 
 "With reference to the first division of the subject, let 
 us briefly consider the character of the offence, the 
 principles governing in the construction of the indict- 
 ment, and the general law relating to conspiracy ; under 
 which last head, we may aptly embrace the authorities of 
 the opposite counsel. 
 
 Under the second point of inquiry, we shall discuss the 
 facts relied upon to support, and to resist the prosecution ; 
 not being unmindful in our course, of the situation of the 
 parties the consistency and veracity of witnesses, all of 
 which, as the court will tell you, are proper and legiti- 
 mate subjects of remark. It is not my intention rigidly 
 or severely to quadrate my course by these points ; but 
 merely to resort to them as stars by which to steer upon 
 this dark, and doubtful, and perilous ocean. Arrange- 
 ment and system are ever the friends of truth ; and if 
 they deserve, will secure success.
 
 JOURNEYMEN TAILORS CASE. 97 
 
 "What, then, is a CONSPIRACY ? It may be defined to be 
 " an agreement between two or more persons to do an un- 
 lawful act, or to do a lawful act in an unlawful manner, 
 or by unlawful means." And the requisites of the indict- 
 ment are implied by the definition of the offence ; and in 
 all reason, as well as all law, the indictment must con- 
 form thereto. It is not sufficient that the witnesses 
 should prove a conspiracy that conspiracy must be ex- 
 hibited upon the face of the record. Nor is it alone suffi- 
 cient that the indictment should be perfect ; the facts 
 must also be so they must mutually impart and imbibe 
 strength reciprocally borrow and reflect light. One 
 offence is not sustained by proof of another, any more 
 than it is supported by defective proof of the same. 
 When the indictment is insufficient it matters not what 
 the facts may be it may be demurred to, or taken ad- 
 vantage of upon the trial; or after the trial, upon a mo- 
 tion in arrest of judgment. 
 
 Overt acts may or may not be important, according to 
 the character of the charge ; if the offence consist in un- 
 lawful means or manner, the overt act is generally neces- 
 sary. At all events, the means and manner must^be set 
 forth. When the act alleged is clearly unlawful, unlaw- 
 ful means need not be stated ; and if the act be not ille- 
 gal, and no illegal means stated, there is no conspiracy. 
 If this doctrine requires support, it will be found in the 
 City Hall Recorder, vol. 3, page 59. 
 
 Again a conspiracy to do impossible acts is not sus- 
 tainable, unless when rendered culpable from the means 
 contemplated. Hence an agreement to extinguish the 
 stars to blow up the moon to swallow the ocean to 
 darken the sun, or to do any other impossible thing, 
 unless the means to be used are illegal, is a subject for a 
 commission of lunacy to decide upon, and not a criminal 
 court. 
 
 Further a confederacy is not necessarily criminal. A 
 conspiracy to maintain the laws to resist oppression to 
 
 7
 
 98 FOREXSIC SPEECHES OF DAVID PAUL BROWN. 
 
 protect rights, though that protection may interfere with 
 the views of thousands to discharge our duty to this 
 world and the next, is neither illegal in the act contem- 
 plated, nor, in the present case, in the means adopted. 
 
 All this even by the common law but let us recross 
 the Atlantic, and come nearer home. The common law 
 upon this subject must be received here with great cau- 
 tion with abundant allowance and so modified as to be 
 adapted to the principles and policy of our government. 
 It is part, and in criminal cases, the worst and most bar- 
 barous part of our inheritance from our parent stock. In 
 Great Britain it is a necessary engine of power. It is es- 
 sential to check and subdue their mechanics their manu- 
 facturers their artisans ; otherwise every man would 
 swell himself beyond his assigned limits. The law, in its 
 administration, is somewhat swerved to their purpose 
 " to do great good they do a little harm," and too often 
 build up the throne of the monarch upon the bleeding 
 hearts of his subjects. Upon the contrary, no such re- 
 straint is required by us here every man is a monarch 
 legitimately crowned by the laws under which he lives 
 here people of the classes referred to are rather to be en- 
 'couraged and sustained, than depressed. They are of the 
 utmost importance to the character and wealth of the 
 State of the United States. Bat what says Judge Gib- 
 son ? The authority referred to upon this subject by our 
 opponents, is exactly what we contend for. 
 
 If therefore, I say, this portion of the common law is 
 to be engrafted upon the law of this land, it must be 
 modified and regulated by the policy of the laws of this 
 land, and then it may be adopted. And when adapted 
 to the character of the people here, it may then be said 
 to be equally cogent, here as there. That reason, which 
 operates without regard to difference of circumstances 
 and situations, becomes madness. 
 
 Why, may it please your honors, conspiracy, as con- 
 sidered in England, is scarcely less grievous than impress-
 
 JOURNEYMEN TAILORS' CASE. 99 
 
 ment, and neither has anything to plead but necessity and 
 expediency neither reason nor justice will sustain them. 
 But if, as I have said, this doctrine were to be extended 
 to this country in all its force, and with all its majesty 
 and might, the defendants could not be convicted, plainly 
 for the reason suggested by my learned friend, the oppo- 
 site counsel, who has quoted Judge Gibson's opinion, from 
 the Journal of Jurisprudence. 
 
 The gentleman has turned to page 226 ; and that is the 
 page to which I will call your attention. 
 
 " In no book of authority has the precise point before 
 me been decided. Rex v. The Taylors of Cambridge is 
 found in a book (8 Mod. 10) which can claim nothing 
 beyond the intrinsic evidence of reason and good sense 
 apparent in the cases it contains. In the trial of the 
 Boot and Shoemakers of Philadelphia, there was no general 
 principle distinctly asserted, but the case was considered 
 only in reference to its particular circumstances, and in 
 these it materially differed from that now under consider- 
 ation : And in the trial of the Journeymen Cordwainers 
 of New York, the mayor expressly omits to decide 
 whether an agreement not to work, except for certain 
 wages, would be indictable per se. There are, indeed, a 
 variety of British precedents of indictments against 
 journeymen for combining to raise their wages ; and pre- 
 cedents rank next to decisions as evidence of the law ; 
 but it has been thought sound policy in England to put 
 this class of the community under restrictions so severe, 
 by statutes that were never extended to this country, 
 that we ought to pause before we adopt their law of con- 
 spiracy as respects artisans, which may be said to have, 
 in some measure, indirectly received its form, from the 
 pressure of positive enactment, and which therefore may 
 be entirely unfitted to the condition and habits of the 
 same class here. An investigation, then, of the principles 
 of the law which declares the offence, becomes absolutely 
 necessary to a correct decision in this particular instance ;
 
 100 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 and I at once proceed to it: Whether there are not ques- 
 tions of fact proper for the considerations of a jury, as 
 material to the relator's defence, may, in case I find my- 
 self bound to remand them, be a fit question for consider- 
 ation. 
 
 " The unsettled state of the law of conspiracy has 
 arisen, as was justly remarked in the argument, from a 
 gradual extension of the limits of the offence ; each case 
 having been decided on its own peculiar circumstances, 
 without reference to any pre-established principle. When 
 a combination had for its direct object to do a criminal 
 act; as to procure the conviction of an innocent man (the 
 only case originally indictable, and which afterwards 
 served as a nucleus for the formation of the entire law of 
 the subject), the mind at once pronounced it criminal. 
 So where the act was lawful, but the intention was to 
 accomplish it by unlawful means ; as where the conviction 
 of a person known to the conspirators to be guilty, was 
 to be procured by any abuse of his right to a fair trial in 
 the ordinary course. But when the crime became so far 
 enlarged as to include cases where the act was not only 
 lawful in the abstract, but also to be accomplished exclu- 
 sively by the use of lawful means, it is obvious that dis- 
 tinctions as complicated and various as the relations and 
 transactions of civil society, became instantly involved, 
 and to determine on the guilt or innocence of each of this 
 class, an examination of the nature and principles of the 
 offence became necessary. This examination has not yet 
 been very accurately made ; for there is, in the books, an 
 unusual want of precision in the terms used to describe 
 the distinctive features of guilt or innocence. It is paid 
 the union of persons in one common design is the gist of 
 the offence ; but that holds only in regard to a supposed 
 question of the necessity of actual consummation of the 
 meditated act ; for if combination were, in every view, 
 the essence of the crime, it would necessarily impart 
 criminality to the most laudable associations. It is said
 
 JOURNEYMEN TAILORS' CASE. 101 
 
 in Leach's note to Hawkins, b. 1, ch. 72, 3, that the con- 
 spiracy is the gist of the charge, and that to do a thing 
 lawful in itself by conspiracy is unlawful ; but that is 
 begging the very question, whether a conspiracy exists, 
 and leaves the inquiry of what shall be said to be doing 
 a lawful act by conspiracy, as much in the dark as ever. 
 Mr. Chitty, in his Criminal Law (vol. 3, page 1139), the 
 best compilation on the subject extant, very truly says 
 there are many cases, in which an act would not be cog- 
 nizable by law if done by an individual, that would 
 neverthe ess, be the subject of an indictment, if effected 
 by several with a joint design : yet he too, says the offence 
 depends on the unlawful agreement and not on the act 
 which is to follow it : the act when done being but evi- 
 dence of the agreement. From this it mi^ht be inferred 
 
 - d> 
 
 that the act can operate only to show that an agreement 
 of some sort has taken place, but not by its nature or ob- 
 ject to stamp the character of guilt on it ; but Chitty 
 himself admits that it is impossible to conceive a combi- 
 nation, merely as such, to be illegal. It will therefore be 
 perceived that the motive for combining, or, what is the 
 same thing, the nature of the object to be attained as a con- 
 sequence of the lawful act is, in this class of cases; the dis- 
 criminative circumstances^ Where the act is lawful for 
 an individual, it can be the subject of a conspiracy when 
 done in concert, only where there is a direct intention that 
 injury shall result from it, or where the object is to benefit 
 the conspirators to the prejudice of the public or the op- 
 pression of individuals, and where such prejudice or op- 
 pres-ion is the natural and necessary consequence." 
 
 In the trial of the Journeymen Shoemakers of Phila- 
 delphia, the recorder, a lawyer of undoubted talents, 
 instructed the jury that it was "no matter what the de- 
 fendants' motives were, whether to resist the supposed op- 
 pression of their masters, or to insist upon extravagant 
 wages ; " but this, although perfectly true, as applicable 
 to that case, where the combination was intended to
 
 102 FOKENSIC SPEECHES OP DAVID PAUL BROWN. 
 
 coerce not only the employers, but third persons is not 
 of universal application. A combination to resist oppres- 
 sion, not merely supposed but real, would be perfectly in- 
 nocent: for where the act to be done and the means of 
 accomplishing it are lawful, and the object to be attained 
 is meritorious, combination is not conspiracy. 
 
 Now I will change the sides of the question, and if I 
 do not convict Robb & Winebrener, then the defendants 
 deserve to be convicted. And we will furnish ourselves 
 with arms and ammunition out of the enemy's own camp 
 the very means which our enemies had themselves pro- 
 vided. 
 
 "Well, but, says the gentleman, certainly if you will not 
 allow us anything from Judge Gibson's opinion, you will 
 not deny us the Pittsburg case. But I will deny it; for 
 that case and ours are the very antipodes of each other. 
 They were journeymen to be sure, but they might have 
 been readily mistaken for the masters in the present case. 
 
 I say Robb & Winebrener were the men indicted there 
 virtually the men, not the men in name nor quality ; 
 but in point of principle they were the same. And to 
 show that it was the case of Robb & Winebrener, I refer 
 to the indictment. The Pittsburg indictment may have 
 been copied by our friend, but it does not follow that 
 they copied the Pittsburg facts ; for after setting forth 
 the names of some score of individuals, it proceeds: 
 *' that they unlawfully conspired and agreed together, 
 to form and associate themselves into a society or com- 
 bination, and then and there did with like force and 
 arms and in like manner, form and associate themselves 
 together, in pursuance and furtherance of said combina- 
 nation, conspiracy, confederacy and agreement, into a 
 society and combination, and did enact certain by-laws, 
 rules and regulations, by whicb it was agreed by them 
 the said conspirators, that they would not work in the 
 employment or shop of any master cordwainer in the 
 said borough, who had in his employment any journey-
 
 JOURNEYMEN TAILORS' CASE. 103 
 
 men cordwainers who were not members of their said 
 society ; and who did not conduct himself according to 
 their said by-laws, rules and regulations that they 
 would not do or perform any work as journeymen cord- 
 wainers, unless for such prices as they the said conspira- 
 tors should agree upon and regulate that they would 
 not permit any journeymen cordwainers who were mem- 
 bers of said society, to work in the employment of any 
 person, unless for such wages as the said society should 
 agree upon and regulate. And that they the said con- 
 spirators, would withdraw from the service and employ- 
 ment of any master cordwainer in said borough, who 
 would not pay them such wages as they in their said 
 society might agree upon and regulate, or who would em- 
 ploy in their shops or service, any journeyman cord- 
 wainer who was not a member of their said society, who 
 had been expelled therefrom, or did not comply with all 
 their by-laws, rules and regulations." 
 
 But, the gentlemen are so led away with the idea of a 
 society, that, finding societies in both cases, they took it 
 for granted the offence must be the same. 
 
 I think in the course of the proof it was made to ap- 
 pear, that they had changed the price of making boots, 
 from $1.75 to $3.50, thus raising the price and departing 
 from the old bill. Now will any man tell me that jour- 
 neymen entering into an agreement to do that which 
 they were legally bound to do, will meet a case of this 
 character Robb & Winebrener occupy the place of these 
 men who refused to do work, unless upon payment of 
 higher wages. 
 
 They insist on cutting these men into mincemeat 
 they insist on crushing them with the hard hand of vexa- 
 tious need. They had conformed to this agreement, they 
 had ratified it by their practice; and now they think 
 proper to depart from it, and to indict these men for not 
 submitting to their imposition. Suppose they had re- 
 duced to six cents their daily wages; these individuals, I
 
 104: FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 suppose, must either submit, or starve, or be prosecuted : 
 they would have said, " if you demand seven dollars, we 
 will pay you seven dollars, but the penalty of poverty 
 shall be your portion we will advertise you, and all mas- 
 ter tailors shall close their doors against you." The law 
 should be more severe with masters than with men, and 
 that in proportion to the means of individuals to encroach 
 upon its sacred limits. The masters are more dangerous 
 than the men, as was well observed by my respectable 
 colleague ; for although it does not bear directly upon 
 this case, it bears upon the opposite party, and is there- 
 fore perfectly apposite. 
 
 There is no resisting the groans of a wife and the cries 
 of her infants this is a law which nature has inscribed 
 on our hearts, and which it is neither in our inclination 
 nor ability to resist ; yet the counsel for the common- 
 wealth has ventured to appeal to your feeling. The 
 plaintiffs are the offenders they have conspired to re- 
 duce the wages, and nothing saves them from punish- 
 ment but the want of an indictment. 
 
 I was about to observe that combinations of this sort 
 are more dangerous in masters than in men, because 
 poverty is a law which man cannot resist. Masters have 
 the means, and though they may exact from their cus- 
 tomers any price which they please, there is never a 
 thought of their being conspirators, while they are 
 grinding down the men whom they employ, to little 
 more than nothing, and pocketing their services. They 
 can hold out, they can persist in their determinations ; for 
 they have already accumulated a sufficiency to confirm 
 them in their obduracy. And again, the effects are more 
 pernicious because they are more generally felt ; for one 
 master may perhaps, have twenty journeymen. The sug- 
 gestion of this cannot be too much dwelt upon, for even 
 journeymen will some day become masters, or they look 
 to become so, for " hope bears us through, nor quits us 
 at the last." Every journeyman expects to become a
 
 JOURNEYMEN TAILORS' CASE. 105 
 
 master it is the regular line of preferment ; but few 
 masters expect again to become journeymen. The jour- 
 neymen, therefore, having a view to their subsequent ele- 
 vation, are less dangerous in their opposition to the laws 
 they take care not to affect their character. But 
 when the masters form a combination, they have no 
 regard to the situation of their journeymen, because 
 they never expect to share with them in their perils, nor 
 pains ; nor can they sympathize with them in their lia- 
 bility to evil, or susceptibility of good. 
 
 I know, and am happy to say it, that I address those 
 who have, in all probability, many of them, passed 
 through the different grades to promotion and a pro- 
 motion which they now enjoy as they ought. But will 
 you kick down the ladder of your own greatness will 
 you turn your backs upon those who are engaged in the 
 same virtuous struggle ? Is it not much more mag- 
 nanimous for you to avow to the world, that you have 
 erected your own fortunes, and have not forgotten it, but 
 that you sympathize with those who are erecting theirs, 
 in the same laudable pursuit. 
 
 Again, we are turned to another indictment in a sister 
 State we must be assailed somewhere, and if Pittsburg 
 won't reach us, New York must. But let us see the in- 
 dictment ; what do the counts set forth ? These resemble 
 strongly the Pittsburg case but ours not at all. The 
 charge is having enumerated the persons by name of: 
 " designing and intending to form and unite themselves 
 into an unlawful club and combination, and to make and 
 ordain unlawful by-laws, rules and orders among them- 
 selves, and thereby to govern themselves and other work- 
 men in said art, and unlawfully and unjustly to extort 
 great sums of money by means thereof." Second. " That 
 none of the said conspirators, would work for any master 
 or person whatsoever in the said art, &c., who shall em- 
 ploy any workmen, &c., who shall thereafter infringe or 
 break any or either of the said unlawful rules, orders
 
 106 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 or by-laws." Third. " That they would not work for 
 any master or person who should employ any work- 
 man, &c., who should break any of their by-laws, un- 
 less such workman, &c., should pay to the club such 
 sum as should be agreed on, as a penalty for the breach 
 of such unlawful rules, orders or by-laws ; and that they 
 did, in pursuance of the said conspiracy, refuse to work 
 and labor for James Corwin and Charles Aimes, because 
 they, C. and A. did employ one Edward Whitess, a cord- 
 wainer (alleging that the said E. "W. had broken one of 
 such rules and orders, and refused to pay two dollars, &c. ; 
 as a penalty for breaking such rules and orders), and con- 
 tinued in refusing to work, &c., for C. and A. until the 
 said C. and A. discharged the said E. W.," &c., &c. 
 Fourth. " Wickedly, and intending unjustly, unlawfully, 
 and by INDIRECT MEANS, to impoverish the said Edward 
 "Whitess, and hinder him from following his trade, did con- 
 federate, conspire, &c., by wrongful and indirect means, to 
 impoverish the said E. W., and to deprive and hinder 
 him from following his said art," &c. 
 
 Thus, without a single observation, you perceive that 
 the charge there and here are of an opposite character. 
 
 Having inquired into the nature of this offence, the 
 general principles of law bearing upon it, and the particu- 
 lar character of the charge against the defendants, let us 
 next inquire, 
 
 What are the facts of this case in other words, how is 
 this volume sustained by the evidence ? For after all, 
 this is the most important branch of the cause " To this 
 complexion we must come at last." Upon casting the eye 
 here, placing the indictment out of sight, and forgetting 
 who are said to have committed the offence, honest 
 nature at once asks, who are the alleged conspirators, 
 the master, or the men ? Let us, in answering this in- 
 quiry, look to the origin of the transaction the more im- 
 mediate origin. Is this prosecution founded in the pur- 
 suit of justice, or in the gratification of avarice and
 
 JOURNEYMEN TAILORS* CASE. 107 
 
 revenge ? two of the meanest, as well as the worst pas- 
 sions that agitate the human breast. Why is it that Mr. 
 "Winebrener is thus clad in the panoply of the law, and 
 mounted upon the broad shoulders of the commonwealth ; 
 is it to spy into abuses that have been practiced upon 
 the State, or is it to convert the thunders of the law to 
 his own selfish purpose? I say it is the latter. He 
 commits an outrage upon Mr. Boner, one of the defend- 
 ants, upon a mere " cock and bull story " of the naval hero 
 Mr. Chamberlain, who permits no opportunity to escape, 
 from the beginning to the conclusion of this case, of ex- 
 hibiting his fidelity, at the expense of his courage. Mr. 
 AVinebrener is the first offender, and is bound over: then, 
 and for the first time, as his counsel admit, he thinks 
 of binding over the defendants ; he first charges six, next 
 twelve, and increase of appetite still growing by what it 
 led on, he finally charges, twenty-five. After this, al- 
 though it certainly cannot be said of him as was said of 
 Paul, that too much learning has made him mad un- 
 doubtedly,we cannot but perceive, that too much malice 
 has. 
 
 Having swayed dominion over his own shop, he en- 
 larges it to his pavement then extends it to all Chestnut 
 street ; and not satisfied with this, carries his authority 
 to assail and beat these men wherever they may be 
 found holds them all in subjugation; and emphatically, 
 at last becomes the self-created " Lord of the Bright 
 City." Chamberlain is confederated with him, as well 
 as his partner, in this assumption of authority in this 
 oppression of the defendants in this violation of the 
 laws ; and still we are told that they are no conspirators, 
 but that the offence should be charged only to these un- 
 fortunate men men who, for aught that appears, are 
 much more " sinned against than sinning." 
 
 Let us for a moment, while upon this part of the case, 
 turn our attention to the particulars of the afiair with 
 Mr. Boner. Induced, as I have said, by Chamberlain, he
 
 108 FORENSIC SPEECHES OP DAVID PAUL BROWN. 
 
 (Winebrener) approaches Mr. Boner, and tells him he had 
 better go about his business. Why do you volunteer your 
 advice, Mr. Winebrener is not Mr. Boner pursuing his 
 course home is he not engaged in his own business? 
 Certainly. Has he interfered with you or yours? No. 
 He is a poor rnan, it is true and you have wealth he is 
 a cripple, and you have not only strength, but you are sup- 
 ported by Mr. Chamberlain, who has the JSTemsean Lion's 
 nerve but still you have no right to trample upon legal 
 privileges nor personal sanctity. Mr. Boner replies, 
 you are not to dictate to me ; I am on my road home, 
 but I'll walk where I please. Upon this Mr Winebrener 
 shoves him, Boner raises his stick which he carried for 
 his support, being lame merely as a defence; upon which 
 Winebrener knocks the stick out of his hand, and as an 
 additional proof of magnanimity, strikes him over the 
 head. Well was it that night had spread her dark man- 
 tle over the blushing deed. Not contented with this 
 outrage which, remember, he relates himself he adds 
 injury to injury, by preferring a complaint, some days 
 after, against the man he had assaulted, before one of the 
 neighboring justices of the peace ; for the praiseworthy 
 purpose, no doubt, being under the direction of counsel, 
 of counteracting the testimony, which otherwise must 
 overwhelm him. The binding over of Boner bears 
 strongly upon other parts of this case it indicates the 
 disposition of the prosecution it shows an activity and 
 vigilance of spirit equal to any emergency that may be 
 encountered. The disposition and ruling passion of men 
 being once ascertained, it serves as a key to unlock all 
 the intricacies, and unfold all the mysteries of the human 
 heart. The cruelty practised upon Mr. Boner, is in ac- 
 cordance with the prosecutor's deportment toward the 
 other defendants. Having dismissed them from his em- 
 ployment, and taken measures (I mean no pun) to prevent 
 their being employed elsewhere, he is offended that they 
 should convene together in the vicinity of his shop. " I
 
 JOURNEYMEN TAILORS 1 CASE. 109 
 
 have shut you out of my house, and out of every other 
 house by my influence and now the wonder is that you 
 should be found together in the street" most reasonable 
 surprise truly ! As well mi;ht every unfortunate indi- 
 vidual, who is a disbanded officer, be indicted for high 
 treason against the country for which he bled, because 
 the United States may have left him nothing to do, or 
 to hope for, but to congregate with his former associates 
 in arms, in endless idleness, and sympathetic misery. 
 But further these men are not even permitted to as- 
 semble in the region of the post office not even upon 
 the Rialto. One is supposed to have a private pique 
 against Mr. Chamberlain, and is not allowed to speak 
 to him. They are not allowed to communicate their own 
 grievances to an individual, to whom Winebrener had 
 communicated his. He can go to Mr. O'Neil and relate 
 the story, but these men may not. That is the simple 
 explanation of this great matter ; they have character, 
 and they depend on it for employment, and when Robb 
 & "Winebrencr had been to stigmatize them with O'Neil, 
 they thought proper to vindicate themselves. But more 
 than this he will not let them stand, or walk, or speak, 
 without his leave ', but he will speak himself, and boldly 
 too! He comes to the door when Radford is walking 
 peaceably by, and commences an attack upon him; and 
 I wonder that in your attendance here, passing by the 
 residence of this gentleman, you had not been assailed 
 and indicted also. It was a public street and Radford 
 had a right to be there ; but this gentleman was not 
 satisfied with restricting them ; he claims a privilege 
 which he denies to them. He comes up to Radford, and 
 tauntingly asks him, " A'n't you tired of standing guard, 
 won't you have a chair ?" Now this is frivolous, but it 
 deserves punishment. But it is said, by way of enfeebling 
 the evidence, to which I have referred, that the witnesses 
 for the defence are all journeymen tailors except some 
 three or four ; and these we are told, although they are
 
 110 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 not journeymen tailors, are master tailors, and are sup- 
 ported by journeymen tailors and apprentices. I ask you 
 to notice the shop of Messrs. Robb & Winebrener 
 this northern hive this offidna gentium that pours forth 
 this host of witnesses. If you take the testimony of 
 those who stand in close relation to the prosecutors, out 
 of this case, it has not a foot to rest on. Mr "Winebrener 
 is the first the former prosecutor and aggressor. Mr. 
 Chamberlain, the Messrs. Robb Charles, Samuel and 
 William, the one a partner and the other his brothers 
 O'Neil, who is employed and gets the work intended for 
 these men Ramsay the runner and he follows so close 
 after his master that he brings before you, as Mr. Wine- 
 brener did, a memorandum ; and asks you to affix your 
 seal to his Scroll of Fate. There you have the most im- 
 portant witnesses in this case, every one, I was about to 
 say, from the self same shop-board nay, every witness, 
 I might almost say, is a party to this very cause. 
 
 For all the purposes of testimony, the defendants are 
 dead ; their lips are as effectually closed, as though the 
 ponderous and marble jaws of the tomb had devoured 
 them ; and nothing is to be heard but Robb and Wine- 
 brener nothing seen but that bright galaxy in which 
 they, the primary planets, are surrounded by a host of 
 twinkling satellites. All this is matter of consideration ; 
 the inconsistencies of the prosecution are to be more 
 rigidly scrutinized, their dispositions more closely ex- 
 amined, inasmuch as they have an unlimited power of 
 doing wrong, and their antagonists are debarred of all 
 opportunity of counteracting that wrong. But the prose- 
 cutors have not only sealed our lips, but they at the same 
 time complain of our want of witnesses. They say we 
 should have produced Mr. Alderman Barker for what ? 
 To establish what had already been abundantly confirmed 
 by at least three or four witnesses. Was not the tran- 
 script of Mr. Barker offered by us and opposed by them ? 
 If they did not like the act, it is not probable the man
 
 JOURNEYMEN TAILORS' CASE. Ill 
 
 would have met a better reception ; or if he were desira- 
 ble, why did not they produce him ? If he could gainsay 
 the defendant's proof, they had but to step across the 
 street, requiring no seven league boots, to secure his 
 attendance. But while upon the subject of evidence omit- 
 ted, allow me to inquire from our friend, who conducts 
 this charge where is Mr. Ross, who applied to the 
 Messrs. Watson for the price of the riding habit ? Mr. 
 Winebrener's statement unquestionably required his sup- 
 port ; he is among the missing. "Where is 5lr. Burden ? 
 a gentleman of undoubted character, and who could at 
 once have placed the impress of unequivocal truth upon 
 those transactions, in regard to^ which, we have at present 
 nothing but the scambling, scattering, and unsure obser- 
 vance, of the redoubtable naval hero, Mr. Chamberlain. 
 Mr. Chamberlain ! whose sight is so jaundiced either by 
 fear or favor, that the most common and familiar courte- 
 sies, are subject to be misunderstood by him. Shaking 
 hands, itself, with him is a badge of deliberate treason ; 
 there is not a smile but lurks a devil in it ; and in short, 
 all the charities, and sympathies, and civilities of life, are 
 dark denotements of the most deadly and destructive 
 hostility. The eloquent counsel, chiming in with the 
 witnesses, solemnly apostrophizes a pair of thread-bare 
 " breeches," in the course of his interlocutory appeal ; 
 and finally, they are by joint effort magnified into 
 something but little short of a nine pounder at least, 
 and paraded before the commonwealth upon this occa- 
 sion, with all the pride, pomp, and pageantry of a 
 military triumph. * Now, though some men, as we are 
 told, when the wind is north-northwest, may distinguish 
 between a hawk and a handsaw, I respectfully submit 
 to you, that after this, Mr. Chamberlain is not entitled 
 to rank of that number : however this may be, permit 
 
 * This refers to Mr. Chamberlain having mistaken a pair of panta- 
 loons, in the hands. of one of the defendants, for a murderous weapon. 
 ED.
 
 112 FORENSIC SPEECHES OP DAVID PAUL BROAVN. 
 
 me nevertheless solemnly to congratulate the hero upon 
 his escape from all those toils and perils past, those " hair 
 breadth 'scapes, and imminent adventures." Had it not 
 been for the timely, critical interposition of Mr. Boner 
 one of these nefarious conspirators had it not been for 
 his merciful, all-imposing, irresistible injunction, addressed 
 to Mr. Parkinson, in the mystic and magic words " NOT 
 YET" the wide world would have had to lament the 
 premature de.ath of the illustrious Mr. Chamberlain, in a 
 manner scarcely less deplorable or infamous than that of 
 suicide A tailor killed by the untimely explosion of a pair 
 of pantaloons ! 
 
 I have no more inclination, though much more cause 
 to assail. the witnesses in this case, than the opposite 
 counsel, and as much confidence may be reposed in the 
 candor of this declaration, as in his ; neither, I hope, 
 having any view to ulterior results. But allow me to say, 
 it is the policy of the commonwealth to abstain from con- 
 sidering the veracity of the evidence, and particularly 
 that of Chamberlain, as it could terminate in nothing but 
 discomfiture and disgrace. "With us, however, as 1 have 
 said, the matter stands differently. The prosecuting tes- 
 timony I will show you is assailable wherever it is tangi- 
 ble, and vulnerable wherever it is assailable. And we are 
 bound to say at the same time that no man should be 
 wantonly attacked that that delicacy which would pro- 
 tect a witness from merited odium, in a cause like this, 
 would imply an abandonment of duty, and so far from 
 being a virtue, would be a crime. Let us then, proceeding 
 upon this principle, approach somewhat nearer to the 
 witnesses, and touching them with the celestial spear 
 of Ithuriel, deprive them of their masks and exhibit 
 them to the world in their true features. First, in the 
 first rank, comes the redoubtable Mr. Chamberlain, to 
 whom I have already generally referred. The Hero 
 comes! after having sustained a friendly blank cartridge 
 fire from the gentlemen engaged for the prosecution, for
 
 JOURNEYMEN TAILORS' CASE. 113 
 
 about an hour, with most undaunted bravery ! Did you 
 observe the moment the battery of the defence was 
 brought to bear upon him, how utterly the scene was 
 changed? Upon being cross-examined, he was simply 
 asked Have you been to sea ? Do you remember how 
 at once he floundered and fluttered like a winged wid- 
 geon ; first declining, and afterwards demanding whether 
 he was bound to answer the question ? In this dilemma 
 his confusion is increased by a friendly attempt to 
 diminish it Mr. Wurts tells him he may answer it, and 
 " say also whether he had not seen Mr. Reed in South 
 America." This is too much, and everything like com- 
 posure is at once put to flight. At length, however, 
 mustering up his scattered spirits, he, after a prodigious 
 effort, succeeds in saying, he had once been on board the 
 United States ship Macedonian. The question related to 
 other matter than that but explanation on our part was 
 not allowable, and upon theirs not advisable. But was it 
 not evident to you, not only from the manner, but the 
 answer, that there was more in his recollection than either 
 reached the eye, or ear ? Why, sir, are you ashamed of 
 your naval glory, of having been defending, and defended 
 by, the wooden walls of your country why, above all, 
 would you disclaim even a single leaf of the Macedonian's 
 laurels a single ray of that lustre which she reflects upon 
 the nation? Why! there was not a splinter in the ship, 
 either considered in connection with herself, or in relation 
 to her great original, that might not have lighted up 
 more courage in your heart, than even all your imaginary 
 exigencies and impediments could possibly have required! 
 Fear, however, is always the spontaneous offspring of 
 crime " suspicion always haunts the guilty mind ; the 
 thief doth fear each bush an officer." 
 
 "But to his story having escaped the murderous weapon 
 of Mr. Parkinson, he takes shelter under the friendly roof 
 of Mr. Burden ; while here, he sees, or fancies he sees 
 enemies upon all sides ; three men nearly opposite to the 
 
 8
 
 114 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 door and several others approaching Falstaff' s men in 
 Kendal Green, I suspect buckram men, certainly, even 
 according to his own statement. To relieve him from 
 this state of incalculable peril, the magistrate and Mr. 
 Milliman who had been sent for, at length arrive ; and 
 under the charge of the latter he is induced to resume his 
 way home and what is remarkable, none of these be- 
 leaguering enemies, according to Mr. Milliman, molest, 
 speak to, or apparently notice them. When they reach 
 the vicinity of South street, Mr. "Winebrener arrives in 
 breathless anxiety calls to the constable, and then, in- 
 stead of passing on to the residence of Mr. Chamberlain, 
 which was within a short distance wonderful to relate, 
 and the more remarkable, as it is entirely forgotten by 
 the hero of this episode at the instance of Mr Winebre- 
 ner, they all three retrace their steps encounter Mr. 
 Boner and Mr. Donahue in their return, which results in 
 the unprovoked assault and battery upon Mr. Boner, to 
 which I have already adverted. Mr. Milliman, a per- 
 fectly respectable, as well as disinterested man acquits 
 the individuals accused by Mr. Winebrener and Mr. 
 Chamberlain, of everthing like impropriety ; and conclu- 
 sively shows that this most horrible and appalling scene 
 of outrage, and probable murder^ was but the sheer coin- 
 age of an over-heated brain. In short, this man appears 
 to have been wrought up, by some internal and unac- 
 countable agitation, almost to a pitch of madness or at 
 least, he centres in his make such strange extremes, as to 
 render his conduct perfectly inexplicable upon the com- 
 mon principles of human action he first flees from danger 
 either real or imaginary, with little or no apparent cause ; 
 and then, with no more cause, he voluntarily confronts 
 that danger. He sees a man at eleven o'clock at night 
 moving about his door, and is terrified at the treacherous 
 designs of which he suspects him ; and yet leaves his 
 house for the purpose of pursuing the enemy and su^ject- 
 ing himself to the very crisis that he dreaded.
 
 JOURNEYMEN TAILORS' CASE. 115 
 
 This shows the spirit of the cause, and it is for that 
 purpose mainly, that I have taken the liberty of occupy- 
 ing your attention with these transactions. And is it at 
 all extraordinary that thus situated, the opposite counsel 
 should attempt making a virtue of necessity, by profes- 
 sing a disinclination to comment upon the character of 
 the proof, when the proof which they have exhibited, for 
 the most part shrinks from the test of comment. Their 
 profession is too thin a veil to conceal the true character 
 of their liberality it resembles the kiss of Judas the be- 
 trayer the compassion of the crocodile, who mingles his 
 tears with the life's blood of his expiring victim. If men 
 are to be assailed, let it be done openly, with full oppor- 
 tunity of resistance. Why is it, notwithstanding all this 
 mercy this theoretical mercy the prosecution is still so 
 cruel, even to some of their own witnesses Saturn like, 
 devouring their own offspring. In regard to O'Flaherty, 
 who was called by them, it is plainly intimated, without 
 any inducement being suggested, that he is perjured nay, 
 more that by way of protecting himself in that perjury, 
 he had torn a leaf out of the minute book of the society. 
 Notwithstanding the witness with a promptness and 
 frankness that did him honor gave for explanation, that 
 this book had originally been appropriated to other pur- 
 poses ; and that, as he did not slumber amidst hoards of 
 gold, and had no money to lavish upon unnecessary pur- 
 chases, he converted the book to the uses of the society ; 
 having previously torn out the leaves which appertained 
 to other matter. From the severity, with which Mr. 
 O'Flaherty has been treated, we may easily preceive that, 
 whether friends or foes if the individuals who have 
 been invoked into this trial, stand in the way of Robb & 
 Wiuebrener they are equally liable to persecution. 
 
 But to return to the consideration of the prosecuting 
 testimony ; Mr. O'Neil, who follows upon the heel of Mr. 
 Chamberlain, and who was encouraged by our friends on 
 the opposite side, in rather more impertinence than be-
 
 116 FORENSIC SPEECHES OP DAVID PAUL BROWN. 
 
 came the solemnity of the obligation under which he 
 appeared Mr. O'^eil, I say, showed his disposition to 
 convince you, that, as the other was not a prepared wit- 
 ness, he at least was, and that he came purposely prepared 
 to answer me it is true he was prepared to answer me ; 
 but he was not prepared to answer himself. He should 
 have come prepared to swear to what he had sworn to 
 before to swear to the same men, and to vindicate his 
 statement before the magistrate ; while he should have 
 forgotten his studied argument for Robb & Winebrener, 
 of left that with the other unfinished garment at home. 
 He tells you at this time that Mr. Hough, the man sworn 
 to before, is the man that called at his house in company 
 with Radford ; yet at the magistrate's office, as we have 
 shown by three or four incontrovertible witnesses, he 
 swore positively to Eadford and to Miller, and to the best 
 of his belief as to Scott. What then is the argument ? 
 Without at all designing to convict Mr. O'Neil of false- 
 hood ; if at different times he swears to different men, 
 his testimony is too imperfect and unsatisfactory to fur- 
 nish anything like a basis upon which we may safely rely. 
 If Mr. Radford and two others, being participants jointly, 
 in a criminal design in pursuance of that design, called 
 at the house of the witness, we are entitled to know who 
 they were ; and that we cannot ascertain, from the evi- 
 dence of any man who swears on different days to differ- 
 ent persons. To entitle testimony to our reliance, it 
 should exhibit at least as much truth as zeal. 
 
 If you cannot rely upon Mr. O'Neil as to the person, 
 much less can you confide in his remembrance of the con- 
 versation ; but even if you could accord your belief fully 
 to both, what is to be the result ? What was the offence? 
 These men having understood that Mr. Winebrener, Mr. 
 Ramsey, and others, had related their stories to O'Neil, 
 and had also employed him ; thought proper to wait upon 
 him, and to submit an account of their grievances, and 
 concluded by asking if he thought it right to join in a
 
 JOUKNEYMEN TAILORS' CASE. 117 
 
 confederacy with Robb & Winebrener to do the work of 
 the journeymen, and thereby to deprive them of their^ . 
 wages, according to their contract. 
 
 Had not these men authority to remonstrate against an 
 encroachment upon their rights? Or is that encroach- 
 ment to be justified, and the remonstrance itself to be con- 
 sidered culpable ? O'^Teil, and Robb & "Winebrener, and 
 Ramsay, and Chamberlain were all conspirators integral 
 parts in the great scheme to reduce journeymen to sub- 
 mission or starvation. Yet they have so managed their 
 cards as to shuffle the poor and unfortunate to the top of 
 the pack, while they themselves are screened from obser- 
 vation, and protected from animadversion by the very 
 individuals whom they have abused. I put it to you, 
 without the fancy of the advocate, that these are the 
 plain, unsophisticated facts of the case. The next wit- 
 ness is Mr. Ramsay, the compeer of Mr. O'Neil. What 
 shall be done with these men though they are in gears 
 together, they refuse to pull together. Mr. Ramsay even 
 now denies that Hough was one of the companions of 
 Radford, but upon the contrary still adheres to Miller and 
 Scott. Then you have Ramsay in opposition to O'Neil. 
 There is, in short, such inconsistency and contrariety in 
 this portion of the testimony, intrinsic and relative, that 
 it is almost impossible to accord your confidence to either 
 of them. If there were any explanations that could as- 
 sist -or reconcile these statements, it was in the power of 
 the opposite party to supply them by the evidence of the 
 magistrate ; and they stand confirmed by the omission on 
 their part so to do. But there are still greater discrep- 
 ancies. Winebrener, O'Neil and Ramsay with the benefit 
 of their memoranda to boot tell you that there was never 
 any instruction to the alderman to discontinue the prose- 
 cution against a number of these men ; but that it was 
 determined to pursue it, Notwithstanding which, the op- 
 posite counsel gave you to understand that the defendants 
 were merely on their good behavior, and to be discharged
 
 118 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 or tossed in a blanket, as the whim, will, or pleasure of 
 the prosecution might suggest. Four witnesses for the 
 defendants state, that three of them were actually dis- 
 charged at Mr. "Winebrener's own request ; and we have 
 offered the records and the returns of Mr. Barker for the 
 purpose of confirmation. The same witnesses swore that 
 a commitment had been prepared for Bates, Skeegs, and 
 Scott ; and that it was only upon their counsel declaring 
 that they would not give bail, but should submit to im- 
 prisonment, and that a suit should subsequently be insti- 
 tuted against Eobb & Winebrener for a malicious prose- 
 cution that, from a fear of punishment, and not a love 
 of justice, the case against these gentlemen was dis- 
 missed, on simply their own recognizance. Notwith- 
 standing this,' they, and some dozen others, for the 
 purpose of depriving us of testimony, and transferring 
 the responsibility of this prosecution to the shoulders of 
 the grand jury, are subsequently embraced in the in- 
 dictment. If this shows nothing else, it at least betrays 
 a conscious fear on the part of our antagonist ; and dis- 
 closes the state of mind by which they have been, and 
 still continue to be influenced in this proceeding. There 
 has also been the most unnatural obliquity, not to say 
 perversion of intellect and vision, that ever crept into a 
 cause. It would appear as if every one of these gentle- 
 men had, like Foy, employed a telescope ; with this differ- 
 ence, to be sure, that it was so inverted by them, that 
 every thing appeared erroneously, and the world was 
 turned topsy turvy. Mr. Robb tells you and his testi- 
 mony and deportment are entitled to much greater re- 
 spect than some others that one of the individuals not 
 now upon trial taking the name of the Deity in vain 
 swore he would enter into the shop in despite of Robb ; 
 whereas the very individual referred to, upon his exami- 
 nation, says, that the language imputed to him was used 
 only by Mr. Robb, who .accompanied his profanity by 
 levelling a lapboard at the head of the witness, and pur-
 
 JOURNEYMEN TAILORS' CASE. 119 
 
 suing him down stairs with threats ; although he had 
 previously offered willingly and peaceably to leave the 
 premises. This man has no interest in the present con- 
 troversy, and he is strengthened by being opposed only 
 to those who have. 
 
 Last, though not least, comes Mayhew. How does he 
 stand ? He was formerly iu the employment of Robb & 
 Winebrener, and now under the promise of future em- 
 ployment from them. Heaven forbid though I am not 
 in the habit of invoking anything sacred in a cause like 
 this I say Heaven forbid, that, because he has been in 
 their employment, he should be thereby biassed, or 
 swerved from the truth. While we condemn the sus- 
 picions of others, let us not fall into the same error ; but 
 will you turn your attention to him arid examine his 
 claims to belief. He is one of those who suppose that 
 somebody always wants to buy them ; and for the very 
 reason that they are always willing to be bought. He 
 supposes that these journeymen wished to purchase him, 
 and he says they endeavored to dissuade him from going 
 to Robb & Winebrener's. Now what is the plain testi- 
 mony of those who are not journeymen tailors ? What 
 say they? Why that they endeavored to dissuade this 
 headstrong young man from getting himself into diffi- 
 culty, and adding the twenty-sixth man to this con- 
 spiracy ; but never dissuaded him from going to Robb & 
 Winebrener's. But what is very strange is, that he 
 throws up his work, not from any dissuasion of others, 
 but from some domestic broil ; and still it is imputed to 
 these men. 
 
 It seems there was some unhappy family disturbance, 
 and that disturbance was pursued by our friend, under 
 the hope that it might be traced to the defendants ; but 
 it turned out to be purely a domestic disturbance, and 
 was subsequently avoided by me, as indelicate and im- 
 proper. He states, when put to the torture, that in con- 
 sequence of this difference, he turned Pickering from his
 
 120 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 house. Pickering says he never saw him there, that he 
 never was in his house but once, and then he called to 
 mention that he had some work for him. He mentioned 
 it to his wife, Mayhew not being at home ; and the next 
 day the man came down to the shop. Do you suppose, 
 if it were true, that he expelled him as he has said, that 
 he would come down to Pickering's shop and ask his ad- 
 vice ? Does not this fact show, as well as the evidence 
 of Miller, that all this story about his wife and Mr. Pick- 
 ering (which nobody can understand), was merely resorted 
 to, to extricate him from a difficulty which he could not 
 otherwise escape ; and that it had as little foundation as 
 three-fourths of the other statements from the same 
 quarter. Mr. Mayhew is next seen at Mr. McGuire's, 
 where the society met. Here he saw some of the defend- 
 ants converses with them tells them he is willing to 
 be idle if he can get money enough to support him never 
 receives any money, and finally, finding no other bidders 
 for his services than his old employers, he communicates 
 all, and more to them ; and again enlists under their ban- 
 ner. It would be safer to rely upon the fidelity of the 
 winds and the waves, than upon testimony so loose and 
 unsatisfactory as this. 
 
 As to the charges, or rather reasons, why these men 
 should be considered conspirators. 
 
 First, because they belong to a society which has 
 adopted illegal laws. It is not so charged in the indict- 
 ment that is my answer. All the time that is employed 
 in discussing the affairs of this society amounts to noth- 
 ing. You discuss the laws of the society as if the society 
 had been indicted ; and, as if the crime consisted in con- 
 federating and forming these laws. But that is not 
 charged. It is attempting to argue that there was a con- 
 spiracy, which can amount to nothing unless embraced 
 in the indictment. For you can no more punish a crime 
 without an indictment, than you can punish upon an in- 
 dictment without a crime. But allow me to rescue the
 
 JOURNEYMEN TAILORS' CASE. 121 
 
 society though I have no interest therein but that which 
 every man should have from unmerited reproach. 
 
 We are told by the gentleman on the opposite side, in 
 relation to the book of this society, that he did not take 
 it home, because he supposed that he should be suspected 
 of taking out the leaves. He might have taken it home, 
 I assure him, without any such suspicion nay, we should 
 have rejoiced in it ; for had he known more of its prin- 
 ciples, he would have condemned them less. 
 
 If, may it please your honors, this society had been 
 indicted, the cause could not have been sustained : un- 
 doubtedly, then, the society not having been indicted, 
 the cause cannot be sustained : at least, so far as relates 
 to the proof bearing upon the society alone. There is 
 not an illegal principle in the whole book. The first, 
 however, adverted to, and that which gives a more dread- 
 ful note of treason than the rest, is an enactment, that 
 any individual who shall move to convert this society 
 into a beneficial society, shall be fined for the first oftence, 
 and expelled for the second. I have not much knowledge 
 of this subject, but I presume that most of you have be- 
 longed to societies of a similar kind. And every man 
 knows perfectly well, that this portentous and ominous 
 rule amounts to nothing nothing at least in support of 
 the gentleman's apprehension. Now what is the evident 
 object in this ? Here are men who have associated 
 together for the protection of their rights: and ever 
 since the allegory of the bundle of sticks, it has almost 
 been reduced to a proverb, that the wheat should com- 
 bine for protection against the storm. They have done 
 it, and they are bound together by a silver cord ; securing 
 the object for which they have united. Now that pro- 
 vision is to prevent lawless individuals from coming into 
 the society in large numbers, and turning the public cof- 
 fers to their own benefit ; in contravention of the design 
 which forms the basis of the institution. 
 
 Have you not been told that it is a beneficial society ;
 
 122 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 that they bury their own dead ; that they pay the expen- 
 ses of the funeral : and are not those benefits lasting 
 which survive the grave? Nay, is not one of the charges, 
 that it is a beneficial society, virtually ? I trust the gen- 
 tleman will excuse me for saying, that he has been blow- 
 ing hot and cold with the same breath ; first, it is a 
 beneficial society, and therefore to be repudiated ; and the 
 next instant to be condemned because it is not a bene- 
 ficial society. How shall we steer to catch a favorable 
 breeze ? How shall we at the same time shun Sylla and 
 Charybdis ? Let him take it as if it were not a bene- 
 ficial society, armed with lawful objects ; but if it be a 
 beneficial society, let it never be said, that the benevo- 
 lence or beneficence of its character should take from 
 its legality. But we are next exultingly turned to the 
 14th article, as the respectable counsel supposes it means 
 mischief; but neither he nor any one can tell how. At 
 the time when journeymen are standing out for their 
 rights, against the oppression of overweening masters, 
 or opposing despotism and force if any man desert his 
 brother if he desert him in a struggle like this, he is a 
 coward, and a traitor, and he deserves no better name. 
 The law says that men shall stand out for their rights 
 and it is only when they stand out for their rights against 
 the encroachment of others, that they are vindicated or 
 sustained ; and I arn willing to read the article to you a 
 hundred times if you please, as the best encomium that 
 can be pronounced upon a body of men so grossly abused 
 so miserably misunderstood. 
 
 " Article 14. Any man going to work at the time of a 
 turn out, and at a time when young men are standing 
 out for their rights in this city, or any of the principal 
 towns in the United States, if it shall come to the knowl- 
 edge of this society, the parties so offending shall pay a 
 fine of five dollars; and after paying the same, if any 
 member shall upbraid him with his former conduct, he 
 shall pay the sum of one dollar."
 
 JOURNEYMEN TAILORS' CASE. 123 
 
 Observe the justice of the law Solon himself could not 
 have framed a wiser law. And after paying the money, if 
 any man should upbraid him, that man should pay a fine of 
 one dollar. You have erred and returned again, like the 
 prodigal to your duty you have erred, and we, who are 
 all liable to err, forgive you ; "to err is human, to forgive 
 divine." 
 
 But nothing being found in the book, the gentleman 
 resorts to his fancy, to an imagination of what might be ; 
 and you are to convict upon a prospective or possible 
 evil. Although it is not contained in the book, yet how 
 do we know, that they have not made provision for it by 
 a shop rule? We offered to tell them what were the 
 shop rules ; but having shut their eyes to the light, they 
 should not now complain of darkness. We have offered 
 to show them that it was not a shop rule they refused ; 
 and we are bound to believe the truth of the case is 
 against the surmise. You have heard many instances 
 where journeymen individuals, not members of the so- 
 ciety have not been disturbed ; and you. have had no in- 
 stance in which they have. There may, it is true, be the 
 " pitcher law," governing their little convivialities ; but 
 they do not drink treason on the admission of every new 
 member ; and they are not to be convicted on mere hints 
 and innuendoes we ask for stubborn and unequivocal 
 facts. I say the witnesses, or some of them, have 
 clearly established that there was no illegal confed- 
 eracy at all. But what is the answer again ? We answer, 
 you have not charged us with the " pitcher law." We 
 have spoken to that law, not that from any interpretation 
 we can be affected by it, but to show that we ask no 
 quarters ; but are ever ready to encounter the alleged 
 charges, whether suggested by the record or imagination. 
 We come prepared to meet you, armed against the offences 
 of which y ou have accused us ; but we do not refuse to 
 meet anything and everything although it is illegal and 
 .unjust to expect it. So much then for the society we
 
 124 FORENSIC SPEECHES OF. DAVID PAUL BROWN. 
 
 will now throw out of the question that which does not 
 belong to it ; and for which our opponents must be our 
 apology if it has constituted the burthen of our song. 
 
 What, then, is the first charge in the indictment, and 
 the facts relating to that charge ? "We will endeavor not 
 again to refer to that which is not essential in this case ; 
 although it was necessary that this should be remarked 
 upon, lest the jury should suppose the subject unanswer- 
 able because unanswered. I only ask you to exercise your 
 own reason, and I will be perfectly content to leave the 
 cause to its unbiassed results. But do not understand 
 that in being somewhat unwilling to extend your time 
 and protract this case ; it is with any other disposition 
 than to abridge your labors, that I have omitted to an- 
 swer some of these arguments , but rather impute it to its 
 true source a proper regard to you, and a perfect convic- 
 tion that they are answerable, in your own unassisted 
 minds. 
 
 What, then, are the first four charges? They are 
 charges of conspiracy on the part of these men, to do an 
 unlawful act, or to do a lawful act by unlawful means ; and 
 I care not which. The act alleged to be in contemplation 
 by the conspirators, was the increase of their wages be- 
 yond the usual price of wages ; and not accepting the 
 usual price of wages which Robb & Winebrener, and 
 others, had been accustomed to pay. These are the first 
 four charges. I allege that the prosecution cannot suc- 
 ceed on the establishment of a doubtful case they can- 
 not succeed by rendering it diflicult to decide whether 
 the defendants did in fact exact more wages, or whether 
 Robb & Winebrener offered less. They must show 
 clearly the burthen of proof being with them that we 
 demanded more than the usual wages. It is not incum- 
 bent on us to show that they wished to pay less ; but we 
 intend to show that these men are the sufferers, though 
 not the complainants. Instead of their demanding more
 
 JOURNEYMEN TAILORS' CASE. 125 
 
 wages, Mr. Winebrener himself introduced the attempt to 
 reduce the wages below their proper legitimate level 
 (turns to bill). 
 
 Is this your bill, Mr. Winebrener? Yes. Is this your 
 bill, Mr. Robb? Yes. Is this your bill, Mr. Watson? 
 Yes. Well, is it the bill by which you work, or by 
 which journeymen work for you and does it govern the 
 prices in this respect ? It does. This being the bill, and 
 placed in Mr. Wiuebrener's book, and displayed publicly 
 in the shop of the journeymen now how did it become 
 the bill ? By express contract and agreement between 
 the parties. And, strange as it may seem, this is an in- 
 dictment of men for endeavoring to keep their contract. 
 You may have been led away and bewildered by the 
 learned counsel ; and they may hope to succeed by the mys- 
 tery in which the subject is involved : but stripped of all 
 its borrowed plumage, it is an indictment against twenty- 
 five men for wishing to keep their contract against I 
 do not know how many desiring to break it. This 
 being the bill, we have nearly arrived at the conclusion 
 of our labors, and allow me to congratulate you upon the 
 subject. What was the work done? It was a pongee 
 riding dress, requiring five or six men to complete it, as 
 it was wanted almost immediately, and to be finished in 
 a particular way. Well, what were the appendages, and 
 what were the extras ? In the first place, it was a dress 
 with hussar skirts in the second place, it was stuffed in 
 the breast it had wadding in the heads of the sleeves, 
 and vents at the wrists. It had hussar skirts rantered at 
 the body flies at the breast : and all this, in conformity 
 with the bill, is charged seven dollars. It is said that 
 there were no extras, but every man examined has proved 
 that there were extras ; thus making the prosecution the 
 worse, by giving them a bad habit in story telling, as well 
 as in other matters of their vocation. I put it to the 
 jury, and ask if they know any exception, besides that
 
 126 FORENSIC SPEECHES OP DAVID PAUL BROWN. 
 
 of Mr. "Winebrener. The other witnesses all stated that 
 there were extras. But the gentlemen seem to have 
 abandoned the extras, while relying on the difference in 
 price. With the extras the job amounted to seven dol- 
 lars six and a quarter cents, and what did the journey- 
 men demand? Did they demand eight dollars, or ten 
 dollars ? No such thing ; though they might have de- 
 manded something above the usual price, they demanded 
 exactly seven dollars. And what did the masters offer 
 to pay ? One dollar less than the regular price. They 
 insist on departing from the regular and usual price, 
 and turn round and indict these men because they are 
 not willing to submit to the imposition. Corrupt motives 
 are not to be causelessly assigned ; the defendants are 
 supposed to act purely, particularly as there is sufficient 
 reason here to induce us to believe they were right. The 
 price is authorized by the bill. "Were there any distinc- 
 tion designed, it is not introduced ; and when it is not in- 
 troduced, you are to take analogy for the guide. They 
 might as well say their making a blue cloth habit should 
 be but six dollars, because there is a difference in colors. 
 The question is whether the work was done, and in- 
 tended to be paid for. Thin coats, coatees, and jackets 
 are distinguished in price from thick ones, because there 
 are more seams in the one than the other ; because 
 there is a difference in the seams, and no wadding, as 
 the object of the dress is to prevent being overheated. 
 The wadding is excluded, and they are made in the most 
 simple and airy style. What is the analogy? It is 
 " marked " in one case ; and in the other the absence of 
 the mark shows that no distinction is to be made. 
 
 Now, in the first instance, how is it with a pongee 
 habit ? is it as with a thin coat ? Not at all. There is in 
 the first place a very evident distinction. But I mean in 
 point of fact, not in principle the one is intended for a 
 lady, and the other for a gentleman. But that is not
 
 JOURNEYMEN TAILORS' CASE. 127 
 
 very important. In the next place, it is made of stuff 
 half a yard wide, and contains more seams the one hav- 
 ing five, the other two or three ; but it is not necessary 
 for me to go into an actual calculation, for when I tell 
 you all, I can say no more than the witnesses have ex- 
 pressly sworn to. 
 
 The man who has been stigmatized with being a 
 gardener and sexton (I am wrong) a " clerk " of St. 
 Stephen's I beg pardon, your honors, not being so well 
 versed in church history as the opposite counsel ; The 
 clerk (it shall be) of St. Stephen's would rather make two 
 cloth habits than one pongee independently of the price or 
 profit he would rather make two cloth than one pongee. 
 And did they not all say that it was as much or more 
 
 / / 
 
 work ? But it is said, perhaps from the charge in the 
 book of Mr. "Watson a most respectable gentleman, 
 whom no man will disparage or accuse of improper par- 
 ticipation in this matter that on one occasion Mr. AVat- 
 son had paid but six dollars. 
 
 [The court adjourned till half past three o'clock.] 
 
 Upon the reassembling of the court, Mr. Brown re- 
 sumed as follows : 
 
 WITH DEFERENCE TO YOUR HONORS: 
 
 At the time of the adjournment I was about closing 
 my remarks, and of course I have but a moment to claim 
 an extension of your indulgence. 
 
 The subject under discussion at that time was the price 
 charged by these journeymen for their work. And we 
 contended, and I hope satisfactorily, that this was the 
 only matter embraced in the first four counts of the in- 
 dictment. The unlawful act with which these men are 
 charged is their having combined to enforce the payment 
 of prices beyond the usual and established wages. I had 
 proceeded so far as to invite the attention of the jury to
 
 128 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 the testimony introduced on the part of the defendants, 
 and that part of Mr. Watson's testimony, said to be sus- 
 tained by the book of original entries ; whereby it appears 
 according to his own declaration, standing aloof as he 
 does from this case and if possessed of anything like 
 sympathy, certainly that sympathy is naturally with the 
 prosecution that the amount paid by him for a bomba- 
 zett riding dress for a lady, was six dollars, which is the 
 precise sum charged by the defendants, independently of 
 the extras. The difference between four dollars and fifty 
 cents, and six dollars one third would scarcely have been 
 paid by Messrs. Watson, liberal as they are, if not sanc- 
 tioned by the bill. We are told, however, there should 
 be a difference they supposed there should, as between 
 summer and winter clothing ! But I say there should not, 
 because the bill precludes the idea the bill makes a dis- 
 tinction expressly, in cases of men's attire; and not do- 
 ing so in relation to women's attire, shows that such a 
 distinction never was intended. Six dollars, Mr. Watson 
 has told you, was paid by him for making a riding habit 
 which had flies in the breast here, say the gentlemen, is 
 an extra not charged. Grant your attention to one small 
 circumstance I desire you to bear in mind, that one of 
 Mr. Watson's journeymen was examined but a moment 
 before he (Mr. W.) was calledt This journeyman states 
 that the habit referred to, was made in his shop; and the 
 only reason there being flies in the breast that they 
 were not charged was, that not being very conversant with 
 his rights, he -omitted to charge the twenty-five cents. 
 Here is a thin habit then for which was paid six dollars ; 
 and the only reason that the journeyman did not receive 
 six dollars and twenty-five cents, was, that he did not 
 charge it ; and still he received the price for making a thin 
 habit, the same as if it had been a cassimere or broad- 
 cloth, without the extra, which he only failed to receive, 
 from omitting to mention it. But it appears on the book
 
 JOURNEYMEN TAILORS* CASE. 129 
 
 according to the testimony of the gentleman, speaking of 
 a remote period of time, that there is a charge also of six 
 dollars and seventy-five cents, for a thick riding dress : but 
 he at the same time tells you, that since this bill became 
 the law governing this establishment, he has no recollec- 
 tion of any other ; and he does not recollect whether that 
 contained extras or not. It is pretty clear that it did con- 
 tain extras, or otherwise six dollars and seventy-five cents 
 could not have been made out. There must have been 
 vents in the sleeves, and hussar skirts, which were 
 charged, and which were paid for. I claim no credit for 
 this, it is perfectly evident from the bill itself, as com- 
 pared with the book exhibited. He who runs may read. 
 Then here we have all that we contend for, ratified by 
 practice. For if the prices of summer clothing generally 
 were to govern in ladies' habits, Mr. Watson would have 
 offered some four or five dollars for that for which he paid 
 six, and for which he might have paid six and a quarter, if 
 there had been any attempt to claim it ; but he paid what 
 was on the face of the bill, without adverting to the ex- 
 tra. I apprehend the matter is perfectly clear. Nay, 
 Messrs. Robb & Winebrener themselves finally paid the 
 price as it was demanded ; and here is another confirma- 
 tion of the propriety of the charge. If they had thought it 
 really an extortion, would they have paid it? They al- 
 lowed their minds to cool, and paid the bill ; but yet 
 their malevolence remained unimpaired. This attempt 
 was an indirect mode of saying, reduce your prices we 
 have offered you six instead, of seven dollars, and we will, 
 by and by, offer you five instead of six. And still they 
 turn about in the face of all these facts, and tell you 
 that the conspiracy was on the part of these men, and rely 
 upon the master tailors to bolster them up. They invoke 
 their interposition they confederate actually, as well as 
 constructively, to bring these men into subjection to their 
 will, and for what ? For the purpose of violating an ex- 
 
 9
 
 130 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 press contract with these men, to which they were mutu- 
 ally bound to adhere ; and for departing from which the 
 law would have punished them. I say that Robb and 
 Winebrener are the men contemplated in the indictment 
 to which the counsel have alluded that they are the 
 conspirators and that they are not alone in the confed- 
 eracy. The legal offence the moral offence, if there be 
 any, as suggested, is in the defendants raising their wages, 
 and that not being well founded in fact, they cannot be 
 convicted, for the facts do not sustain the indictment. It 
 may appear monstrous on paper and nothing on proof. 
 And I shall insist on that with which I first set out, 
 namely, that the indictment without facts ; or facts with- 
 out an indictment, can claim nothing at your hands, but 
 to be considered, as specious, legal amusements and toys 
 " mere sound and fury, signifying nothing." 
 
 What then remains, but a single charge, which has 
 been exhibited in various ways, but the design, as alleged, 
 is still the same to injure Robb & Winebrener, and their 
 thrice valiant champion the peerless knight of the pan- 
 taloons who mistook a pair of simple " galligaskins " for 
 a pair of pistols just twelve inches long duelling size 
 hair triggers, doubtless percussion locks, and loaded to 
 the muzzle. horribile dictu miserabile visu! 
 
 But we design to embarrass and impoverish Robb & 
 Winebrener, Chamberlain, O'Neil and a number of oth- 
 ers 1 1 have they shown the design ? for that is the gist of 
 the charge. The defendants did assemble, it is true, at 
 the corner of Third street. This is offensive to the pros- 
 ecutors, but not to the laws of the land. Messrs. Robb & 
 Winebrener dwell at such an immeasurable distance above 
 them in point of character, that they are not allowed to 
 look at them even with a telescope. But notwithstanding 
 this prohibition, we are told that some of them did under- 
 take to look through Girard's bank with a telescope, into 
 the back window of Robb & Winebrener's shop. But
 
 JOURNEYMEN TAILORS' CASE. 131 
 
 from their location, I should have supposed, that they 
 would require a telescope that would enable them to 
 look, not only through the marble walls, but through 
 all the loaded coffers of Mr. Girard : a fine prospect 
 truly and you are asked to enjoy it in fancy believe 
 it you cannot. But why was that an offence? Did 
 they halloo ? Yes. They hallooed to Winebrener, and 
 "Winebrener hallooed to them. Is it the play of chil- 
 dren that is seriously employing intelligent men, in- 
 voking the interposition of the law, and sacrificing the 
 time of hundreds ? We are again told that they made 
 noises that are not to be described ; wonderful ! but it is 
 not for what cannot be described, but what is described, 
 that they are to answer. Did you hear them make a 
 noise ? Yes, they hallooed through the windows, and 
 looked in with a spy glass. Well, is looking through a 
 spy glass, and hallooing in a manner that can't be de- 
 scribed, a conspiracy ? Again they stood at the cor- 
 ners : they had a right to do so. It is said they inter- 
 cepted the men, and told them that if they did not con- 
 tinue in the service of Robb & Winebrener, the society 
 would support them. If they had a right to enact such 
 laws they had a right to promulgate them ; that they had 
 such a right, I trust we have shown. 
 
 It does not appear that one-half of the defendants were 
 connected with the matter at all, by the proof ; or connec- 
 ted with each other. They were shown to be members of 
 the society, it is true ; but not even shown to have been 
 on the pavement it is necessary that they should be iden- 
 tified in this transaction. I protest against doing justice 
 by wholesale ; when the facts on which it must rest have 
 been so miserably retailed from the beginning to the end. 
 Well, but Mr. Radford is certainly to blame ! This goes 
 to all the counts, and with this I conclude. He ventured 
 to pursue Mr. Ramsay or Mr. Chamberlain I don't 
 speak certainly (the argument is the same). Mr. Wine-
 
 132 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 brener followed along Third street, down Fourth street, 
 and then turned up, and then down ; thus having a real 
 wild goose chase in pursuit of Mr. Radford, while Rad- 
 ford was in pursuit of Chamberlain. But what is the 
 amount of this ? They thus pass up one street and down 
 another; and give their courses and distances, going and 
 returning: all of which serves only to remind one of 
 Goldsmith's compliment to that honor and glory of her 
 sex, Madam Blaze. 
 
 "Her love was sought, I do aver, 
 
 By twenty beaux or more ; 
 The king himself has followed her, 
 i When she has walk'd before." 
 
 "Winebrener walked after Radford, and Radford after 
 Ramsay but he stopped at a watch box, or lamp, and 
 that too is become a matter of conspiracy if so, it 
 must have shed more light than we have yet seen. 
 
 Mr. Ramsay next encountered some half dozen oppo- 
 site the post office, and was asked where he had been 
 he said in answer, what was not true I hope it was the 
 first time I am sure it was not the last. 
 
 Here were Messrs. Robb & Winebrener sending clothes 
 all over the city ; and if Radford did follow, Winebrener 
 followed also. He must not impute the consequences to 
 us when he is the cause. I don't pretend that one con- 
 spiracy justifies another ; but what I say is, that there is 
 no conspiracy but in the prosecution itself, and that the 
 means of resistance adopted were necessary ; and are sanc- 
 tioned by the opinion of the judge referred to by the 
 opposite counsel, upon the principle of self-protection. 
 
 Gentlemen of the jury, you have now the whole case 
 submitted to you : my duty is discharged, so far as my 
 ability, humble as it is, will allow. A still more import- 
 ant and responsible duty remains to you ; it is for you to 
 determine that, which it devolved upon me merely to
 
 JOURNEYMEN TAILORS' CASE. 13.3 
 
 discuss ; to determine it, even under all the influence of 
 that eloquence which you have already heard, and which 
 you will again hear from our opponents. You have been 
 told, among other appeals to your feelings, that you can- 
 not sleep soundly or safely upon your pillows, unless you 
 convict these men nay further, that it is necessary to 
 the happiness and welfare of the community. If this be 
 so, you are virtually parties to this proceeding ; and while 
 the prosecutors are to be allowed as "large a charter as 
 the wind," the unfortunate defendants are to be bound 
 hand and foot, and offered up as an atoning sacrifice, 
 upon the altar of the violated laws. Well, if you cannot 
 sleep soundly, and acquit these men ; and you dare not 
 encounter, for the preservation of your consciences, these 
 phantoms of the gentleman's imagination ; why, I suppose 
 you must sleep soundly, and the defendants must be con- 
 victed. Their conviction shall not disturb your slum- 
 bers ; the groans of these men, and of all those who 
 depend upon them, shall be uttered, but you shall not 
 hear them ; their tears shall flow, but you shall not see 
 them ; their children shall be reduced to beggary, and 
 worse than beggary, they shall be blurred and blotted 
 with inherited crime ; but still the peace and tranquillity 
 of your domestic retirement and repose shall not be dis- 
 turbed : you shall sleep soundly, and the gentleman shall 
 have his way ! Time shall roll on, until in the grave, 
 the last pillow of repose for the oppressed and the 
 wretched, the poor man at least rests from his labors, 
 and throws off" his griefs ! The earth closes over him 
 the grass springs from the kindred sod, the only monu- 
 ment of the miserable moistened by no tears, save the 
 dews from heaven ! The night wind, while it wings its 
 flight across "the narrow house," sings his last sad 
 only requiem HE WAS he is gone, and all that apper- 
 tained to him, {5 forgotten forever ! The events of this 
 cause are no longer remembered, the reproach which you
 
 134: FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 affixed to him, is no longer felt by their intended victims, 
 but you and yours, those whom you represent, and those 
 who shall come after you, shall feel it. The verdict of 
 this day, shall be imperishably inscribed upon the records 
 of this court, " and many an error, by the same example, 
 will rush into the State."
 
 CHAPMAN CASE. 
 
 COMMONWEALTH OF PENNSYLVANIA v. LUCRETIA CHAPMAN, 
 
 OTHERWISE CALLED LUCRETIA ESPOS V MlNA. 
 
 ID the Court of Oyer and Terminer ; held at Doylestown, 
 Bucks county, Pa., February Term, 1832. 
 
 SKETCH OF FACTS. 
 
 This remarkable case which excited popular attention 
 throughout the whole country, may be condensed in the 
 following statement : Mr. Chapman, a prominent school 
 teacher of great respectability, and the head of a family, 
 consisting of a wife and five children, died,' after a slight 
 indisposition, on the 23d July, 1831. Reports of foul play 
 having been extensively circulated, the body of the de- 
 ceased was exhumed some three months after its inter- 
 ment, and upon the report of medical experts engaged in 
 the post mortem examination, a charge of murder, by 
 poison, was preferred against the widow, and a young 
 Mexican, by the name of Lino Amalia Espos y Mina, 
 who had been domiciled in the family at the time of Mr. 
 Chapman's death. 
 
 Through the efforts of her counsel, Mrs. Chapman, 
 who had been jointly indicted with her alleged paramour 
 and accomplice, was given a separate trial, which re- 
 sulted in her acquittal, on the 25th February, 1832. 
 
 The following named gentlemen appeared as counsel : 
 
 For the Commonwealth. 
 Messrs. THOMAS Ross, and WILLIAM B. REED. 
 
 For the Prisoner. 
 Messrs. PETER McCALL, and DAVID PAUL BROWN. 
 
 (135)
 
 136 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 SPEECH IN CHAPMAN CASE. 
 
 WITH DEFERENCE TO THE COURT: 
 
 Laboring; as I do, and as you gentlemen of the jury 
 must perceive, under a severe, painful, and distressing in- 
 disposition, although permitted to commence my remarks, 
 it is far from being certain, that I shall be enabled satis- 
 factorily to conclude them. As respects the advocate, 
 this is a matter of indifference, compared with the all- 
 absorbing interest of the defendant. However, if fate 
 should decree this speech to be rny last, I do not know 
 that my professional or earthly career, can be more 
 happily or more honorably terminated, than in the just 
 defence of an oppressed fellow creature a woman hap- 
 less, helpless, friendless, and forlorn. 
 
 This case is one of no ordinary importance, I may 
 venture to say, even in your consideration ; and to me, it 
 is a subject of awful and overwhelming interest and re- 
 sponsibility. Your position, however irksome it may 
 be, is far less painful than mine, since it is within your 
 power to do, what I can only solicit; since you are able 
 to avoid, what I can only deprecate. 
 
 I appear before you, gentlemen of the jury, a stranger 
 in behalf of a stranger; but I rejoice in the reflection 
 that justice knows no distinction, either local or temporal 
 or personal ; but is the same at all times, in all places, 
 and to all persons. The only distinction that she regards, 
 is the distinction between virtue and vice between inno- 
 cence and crime; and it is upon justice, as thus under- 
 stood, that we confidently rely.
 
 CHAPMAN CASE. 137 
 
 If, indeed, it were necessary that your sympathies 
 should be appealed to, what subject more fruitful than 
 that which is here exhibited ; what more sorry or more 
 solemn perspective, than that by which we are now 
 surrounded and appalled? An individual who has run 
 more than half the race allotted to mankind, stands here 
 accused of the highest offence known to the laws of the 
 land ; that individual a female, with whose character we 
 are ever accustomed to associate all that is lovely in 
 tenderness, affection and fidelity. That female a wife ! 
 charged with the deliberate murder of the husband of 
 her affections the partner of her bosom. That wife a 
 mother! stigmatized and denounced as the fell destroyer 
 of the father of her infant children. 
 
 There can, I say, be nothing in reality or fancy, to add 
 poignancy to the accumulated and unparalleled afflictions 
 of such an occasion. Did I say nothing ? Alas, gentle- 
 men of the jury, there is still one step further ere the soul 
 is " supp'd full of horrors " the conviction of the de- 
 fendant. Let us pause and maturely meditate ere that 
 awful step shall be taken ere we deprive a fellow crea- 
 ture of that life which we cannot give, and which when 
 once taken, we never, never can restore. Such a convic- 
 tion completes consummates all that can be conceived 
 of anguish on this side of the grave ; and therefore it 
 should be founded upon the most indubitable proof. If 
 the evidence be questionable or equivocal, if the probation 
 bear a hinge or loop to hang a doubt on, the obligations 
 the sacred obligations of the law, throw a vast and inevit- 
 able preponderancy in the scale of the defence. I say an 
 inevitable preponderancy ; and in saying this, let us not 
 lose sight of another legitimate subject of preliminary 
 remark and reproach, which has obtruded itself upon this 
 cause ; namely, the storm, the tempest, the whirlwind of 
 prejudice, by which the unfortunate though guiltless 
 defendant, has been assailed and surrounded, from the 
 moment of these charges having been preferred. No ear
 
 138* FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 has been protected from the accursed hebanon the lep- 
 rous distilment of pernicious rumor ; of busy and active 
 fabrication presenting every variety of aspect, and unit- 
 ing only in the obvious tendency, to injure and destroy an 
 unhappy woman, whom it is our imperious duty to believe 
 to be innocent, till her guilt shall be established. That 
 storm of prejudice still rages, and still let it rage. Thank 
 Heaven, there is yet one refuge left for the innocent and 
 oppressed ; there is one arm at least that is powerful to 
 save. That refuge, is the sacred temple of justice ; that 
 arm, the omnipotent arm of the law ; directed as we are 
 bound to believe, even in its wordly influence, by a sover- 
 eign and overruling power. There is a special provi- 
 dence, we are informed by the Book of books, even in 
 the fall of a sparrow ; and it may therefore readily be 
 conceived, that the agonies, the throes, the torments of 
 the human heart, are not altogether unnoticed subjects of 
 regard, to the great Creator of earth and heaven. 
 
 Yet still, gentlemen of the jury, terrible as it would be 
 that the life of the defendant should be wantonly and 
 unjustly sacrificed, it would, nevertheless, be comparatively 
 unimportant. Time, the great physician, may heal the 
 wounds inflicted upon the bosom of social or domestic 
 peace; the life and the death of the prisoner may bo 
 alike forgotten ; but avert if you can the sacrilegious 
 blow, that is aimed at the maternal bosom of the law ; the 
 pillow where we must all repose in the hour of peril and 
 distress claim safety there, and have that claim allowed. 
 
 The life of one, or of fifty individuals, may be con- 
 sidered as a mere unit in the vast sum of human exist- 
 ence a mere pageant upon the extended theatre of human 
 action ; but beware of the corruption of the sacred sources 
 of justice, " the fountains from the which our current 
 runs, or else dries up " the streams whereof, in the cir- 
 cling eddies of life, we are at one period or another all 
 compelled to drink. Beware of this, if not for the hap- 
 less being now upon her trial, beware of it for yourselves,
 
 CHAPMAN CASE. 139 
 
 for the community, for a helpless and an endless posterity. 
 "We do not ask you to acquit an offender ; but we do ask 
 you, and the hardest heart cannot refuse us this, not to 
 substitute the charge for the offence the rumor for the 
 evidence the suspicion for the guilt. If you permit the 
 sacred ermine of justice to be once stained or polluted by 
 the blood of the guiltless, not all the spices of Arabia 
 shall ever purify it ; not all the rivers of Damascus shall 
 ever wash it clean. 
 
 That there has been a death, no man denies ; and in 
 this valley of death, no man has a right to wonder ; the 
 wonder rather is, that we should live. We appear in 
 the morning, and are cut down ; and we wither ere the 
 setting sun. But the laws of the India Empire, have no 
 existence here. The unoffending widow is not, with us, 
 dedicated or consigned to the funeral pyre, as the barbar- 
 ous penalty of survivorship. The loss of one member of 
 the community, is not diminished by the unjust sacrifice 
 of another. Absolutely the evil is doubled, and relatively 
 its consequences are incalculably increased ; as the ex- 
 ample largely contributes to enfeeble and impair the 
 general tenure and sanctity of life. 
 
 But, gentlemen of the jury, if the mere death of a 
 husband, were to subject his relict to such bodily tor- 
 tures, upon what principle is it, that her character and 
 her hopes, and the hopes and happiness of those who be- 
 long to her, are to be eternally blasted and destroyed ? 
 
 The prosecution, not content with this single victim, 
 embraces all that is dear to her "in one fell swoop." The 
 daughter who has been examined before you as through 
 the perjury of the child, the life of the mother only can 
 be reached may be considered on her trial. There is no 
 difference between extirpating the tender ivy, and hewing 
 down the parental oak, to which it clings, for its nurture, 
 its shelter and support. There is no difference between 
 sacrificing this artless and interesting girl tearing the 
 tender flower from its native stalk, and destroying a
 
 140 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 loving and beloved mother, at the very period of life, 
 when of all others, her attention and protection are most 
 required. 
 
 Nay the ravages of the commonwealth, extend even 
 further than. this. To say nothing of the aged parent, of 
 whom she so pathetically speaks in one of her letters, and 
 whom she so forcibly compares to the patriarch Jacob, on 
 the loss of his son Joseph, whose sorrows were so great 
 that he refused to be comforted ; those prattling innocents 
 whom you have here seen in their mother's arms, smiling 
 as it were, at the glittering sword of justice, suspended 
 over a mother's head, neither plotting nor fearing harm, 
 even their fate depends upon the issue of this cause. 
 
 The time shall come, and that ere long, when your ver- 
 dict, should it affix crime to a mother's name, will enter 
 deeply into their souls ; the worm that never dies shall 
 prey upon their hearts through life ; and the curse that 
 never spares, shall stigmatize their memory when dead. 
 And long long after their, bodies have quietly mingled 
 with their sister clods of the valley ; long after the eternal 
 doors of the narrow house shall have closed upon them, 
 their reputations, dearer far than life, shall be blurred and 
 blasted, by the odious, and recorded imputations of this 
 day. 
 
 But, say the learned counsel, these children are merely 
 introduced for effect. We can only say, that they were 
 not introduced by us. "We require no such aid against 
 the prosecution ; but as I have not requested their pres- 
 ence, neither have I opposed it. It demands a bolder 
 spirit than mine, to defy the laws of nature, or to stand 
 between the children and the yearning bosom of an afflicted 
 mother, at that awful moment, when you are about to de- 
 termine, whether or not, they shall be separated ay, 
 separated for ever. 
 
 I agree, however, with the learned counsel, that thus 
 horrible as the consequences would be, nevertheless, if 
 guilty, those consequences supply no defence. I advert
 
 CHAPMAN CASE. 141 
 
 to them only for the purpose of securing a becoming and 
 just estimate of the amount at stake. Though we decide 
 like fate, let us feel like men ; and if the defendant were 
 ten times guilty, where, let me ask, is the man, and who 
 would envy his feelings, that could resolutely and reck- 
 lessly pursue the prosecution of such a case, while with 
 every step he takes, he tramples upon the feelings of a 
 bleeding heart. 
 
 Having said thus much of the outlines and general 
 character of this case, and of those emotions which belong 
 to it, let us approach more nearly, and at once proceed to 
 examine its more particular and essential features, which 
 array and present themselves under the following in- 
 quiries : 
 
 I. Was the deceased poisoned ? 
 
 II. By whom ? 
 
 There was, as I have said, a death ; not sudden the 
 deceased was ill nearly a week : "Not in the prime of life, 
 he was advanced in years, and his sun was fast descending 
 to the. dark horizon of the grave: Not unexpected ex- 
 pected by himself, calculated upon, as appears by his letter 
 to the parson a short time after he was taken ill ; and 
 by his conversation with Mr. Vandegrift, a few days pre- 
 ceding his demise. 
 
 But before we enter regularly upon the discussion of 
 those inquiries, there are some other features of the argu- 
 ment or address of my ingenious adversary, to which I 
 must invite your attention. This cause has been managed 
 for the prosecution with great ability, and I am compelled 
 to add, with unexampled zeal. The gentleman closed his 
 remarks last evening, with a beautiful passage from An- 
 astasius, exhibiting the reliance of guilty parents upon 
 the pure petitions of their infant children at the throne of 
 Divine Grace. The passage was well chosen, and most 
 admirably applied. But I marvel much, that the same 
 gentleman who so strenuously deprecated the influence of 
 sympathy in behalf of the friendless prisoner, should have
 
 14:2 FORENSIC SPEECHES OP DAVID PAUL BROWN. 
 
 condescended so frequently to invoke it in support of 
 himself and his colleague. 
 
 You are told in the very outset of his discourse, that 
 unless this prosecution should prove successful, the fault 
 will be attributed, not to any deficiency of proof, but to a 
 deficiency of ability on the part of the officers of the com- 
 monwealth ; that they forsooth will suffer in public esti- 
 mation. They have given you " the ocular proof" of their 
 unquestionable capacity. But suppose it were otherwise ; 
 has it come to this, that for the purpose of gratifying 
 vaulting ambition for the purpose of inflating profes- 
 sional pride for the purpose of avoiding individual 
 mortification, the majestic bark of justice shall be driven 
 from her moorings, and the liberty and lives of the com- 
 munity set adrift? If they have harnessed themselves 
 to the car of the commonwealth, and its massive weight 
 is beyond their strength, are you to listen to their suppli- 
 cations for help ? are you to apply your shoulders to the 
 wheels ? If Phreton will assume the reins, and direct the 
 chariot of Pho3bus, he deserves, and should endure, the 
 fatal consequences of his temerity. 
 
 The counsel have not, it is true, invoked the aid of 
 little children in their distress ; it would have been wiser 
 had they followed the Egyptian example ; yet they have 
 prayed most lustily for themselves, but Justice is inexor- 
 able, and deaf to their entreaties ; entreaties, which, per- 
 mit me to say, to my untutored ear, resemble less the mild 
 and mellowed plainings of a contrite spirit, than the wild 
 shrieks of a famished vulture, just pouncing upon its 
 prey. I ask no sympathies for myself; I had almost said 
 I disdain them ; but I openly protest against their enlist- 
 ment for the prosecution. Where is the man so reckless 
 and so lost to honor, who in this momentous struggle 
 against all odds, for the life of a fellow creature, will cast 
 the sword of Brennus into the scale of the commonwealth ? 
 If there be such a man, let him deny his name, as he must 
 long since have abjured his nature.
 
 CHAPMAN CASE. 
 
 Notwithstanding this appeal, the counsel assure us 
 assure our client of their kindness, their tenderness, and 
 commiseration. Timeo Danaos et dona ferentes may it 
 please your honors : this is the kindness of Judas, kiss- 
 ing to betray the tenderness of the vulture, covering to 
 devour the commiseration of the crocodile, mingling his 
 tears with the life-blood of his expiring victim. We will 
 endeavor to protect ourselves from their open hostility, 
 but we earnestly implore you, to guard and defend us, 
 against the tender mercies of such a prosecution. 
 
 As a specimen of their deep condolence with the prisoner, 
 they at first attempt by the assistance of police officers, to 
 deprive her .of the safeguard of character ; and miserably 
 failing in this, you are next told by them, that character 
 is the very worst defence that any cause can have. "Will 
 this court and jury recognize that doctrine? Can they 
 reconcile those inconsistent attempts ? Character is always 
 a good, and sometimes an only defence, in doubtful cases ; 
 and surely it is conceding enough to our opponents, to 
 admit that this is a doubtful case. Character is a broad 
 and secure shield, against which the pointless shafts of 
 suspicion break themselves in vain. If the advantages of 
 a spotless reputation, be at all proportioned to the diffi- 
 culties encountered in its acquisition, it may be confidently 
 relied on. The attainment of character is an uphill work ; 
 the ascent is difficult, laborious, and treacherous ; but 
 when we reach the glorious summit, after all our toils and 
 perils past, Fame, with her own hand, arms us at all 
 points in celestial panoply, which, like the polished mirror, 
 reflects without retaining, the calumny, reproaches, and 
 odium that assail it. Reputation, it is true, may be gradu- 
 ally lost ; its safeguards gradually impaired; but what- 
 ever may be the particular and hackneyed exceptions 
 which human nature supplies, I hold it to be a well estab- 
 lished general rule, that it is never suddenly surrendered 
 or abandoned, without some inducement or temptation,
 
 144 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 either actual or imaginary, commensurate with the im- 
 portance of the sacrifice. 
 
 There is one other subject of comment, before I return 
 to the systematic consideration of this case, under the in- 
 quiries proposed ; and that is, the inference of crime from 
 the supposed existence of motive ; an inference from an 
 inference. 
 
 In human tribunals, we generally ascertain the motive 
 from the act, and not the act from the motive ; and this 
 improvement in moral philosophy, for which we are in- 
 debted to our learned friends, serves to remind me of a 
 story related, not of an "Egyptian," but a Turk, which I 
 may be pardoned in recounting. Conforming to the sub- 
 lime ordinances of the Koran, the Turks, it seems, had 
 forbidden under severe penalties, an indulgence in wirie, 
 or any other intoxicating beverage. An officer of the 
 government observing an individual with a jar upon 
 his head, and discovering that it contained the juice of 
 the grape, summoned him forthwith before the Mufti, 
 and there preferred his complaint. The alleged offender 
 acknowledged the wine, but denied the offence ; where- 
 upon the accuser rested his charge, as the prosecution 
 here does, upon the probability of guilt, from the strength 
 of the temptation or motive to commit it. Upon which, 
 the prisoner observing in the hand of his adversary a 
 glittering scimitar, immediately turned to the magistrate, 
 and accused the officer of murder; and when called upon 
 to sustain his charge, relied upon the reasoning that had 
 been urged against himself. "That shining blade," said 
 he, " is an instrument of death ; I find it drawn and naked 
 in your hand ; if the mere ability to commit crime, be an 
 evidence of crime committed, you stand arraigned and 
 condemned upon your own principle." It is almost un- 
 necessary to add, that the Turk was discharged. 
 
 " Man is prone to evil as the sparks fly upwards ;" but 
 we should be careful, not too far to confirm this doctrine, 
 by its unthinking application. The object of evidence is
 
 CHAPMAN CASE. 145 
 
 the establishment of facts; those facts, when established, 
 are what we denominate proof. But if from mere lia- 
 bility or inducement to evil, we are to draw satisfactory 
 conclusions of crime, why, then, to be sure, all mankind 
 are flagitious offenders, and we the most of all. You have 
 nothing to do but to read the indictment, to run over a 
 string of truisms, or popular brocards on the subject of 
 human iniquity, and the business of destruction is done. 
 Your courts of justice virtually become slaughter houses, 
 and you yourselves, the ministers of the law, instead of 
 being sacrificers, are converted into butchers. 
 
 There .is another view taken by the counsel of this 
 case, which, for its novelty, is deserving of attention. He 
 contends that you must either find the prisoner guilty, or 
 pronounce her entirely innocent. If he mean that the 
 charge contained in the indictment cannot be qualified 
 or reduced, so as to admit of a conviction for any infe- 
 rior offence, if, in other words, he meant that she must 
 be capitally convicted, or not at all, I concur with him. 
 But if he -intended to signify, and so seemed to set the 
 current of his thoughts, that you must either absolve her 
 from every act of imprudence and indiscretion, or else 
 convict her of this heinous offence, I deny it totally. 
 Even a general want of innocence would not be in itself, 
 sufficient evidence of the perpetration of a particular 
 crime. If the mysteries of the case, as is said, cannot 
 tally with the idea of innocence, they must cease to be 
 mysteries, and become self-evident facts. If they are mys- 
 teries, they may comport with either innocence or guilt, 
 and in that event, the condition of the defendant is the 
 best. 
 
 Aware of their difficulties, you are told that crimes of 
 this description are always committed in such a way as 
 not easily to be discovered. So are most offences ; but 
 does it follow therefore, that where they are not discovered, 
 we are to guess at a verdict, and thereby entail upon our 
 consciences a heavier crime thau that which we unjustly 
 
 10
 
 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 condemn? "What can we reason but from what we know? 
 It is possible, it is true, that there may be guilt even 
 where it cannot be ascertained ; but it is also possible 
 there may not be, and all that it is requisite should be 
 said, is, that the benefit of the possibility is with us, and 
 the necessity of distinct and conclusive proof, with them. 
 If they fail in this, the cause, for all worldly purposes, is 
 ours ; and the punishment of the offender must be left 
 to that omniscient Power, to whose vision all the depths, 
 darknesses, and recesses of the soul are revealed. " Ven- 
 geance is mine, saith the Lord, and I will repay." Let 
 not sublunary tribunals audaciously and impiously pre- 
 sume to invade the sacred sanctions to usurp the high 
 prerogative of heaven. 
 
 To return now, from this discursive flight of the coun- 
 sel in which I confess I have been compelled to pursue 
 him to the more essential and substantial merits of the 
 charge, I will in the first place proceed to show you 
 instead of adopting the chronological order of events 
 which probably would have been the most perspicuous ar- 
 rangement that there was no poison; and without mak- 
 ing it an independent ground of observation, I shall also 
 endeavor to satisfy you, should I even fail in my reliance 
 upon this first broad shield of the defence, that there is 
 no sufficient reason for believing that this defendant par- 
 ticipated in the offence. 
 
 It was a practice adopted by Sir Matthew Hale, one of 
 the greatest ornaments that ever adorned the criminal 
 jurisprudence of any country, never to allow any man to 
 be convicted of a murder, until it was at least distinctly 
 shown that a homicide of some one had been committed. 
 Our own experience has furnished an ample illustration 
 of the wisdom of this rule. In a sister State, two men 
 were accused of the death of a third, and upon being 
 arraigned, they both pleaded guilty 4;o the charge, will- 
 ing, no doubt, to terminate the horrors of remorse, of 
 which they had long been the prey. The plea of guilty
 
 CHAPMAN CASE. 14 I 
 
 to such a charge, is an unusual one ; the public journals 
 teemed with various accounts of the case; the day ap- 
 pointed for their execution rapidly approached, when 
 lo ! the murdered man appeared in their behalf, not like 
 " blood-bolter'd Banquo," " with twenty trenched gashes 
 on his head," but in the possession of full health and 
 vigor, and with far better prospects of protracted life, 
 than those by whom he was alleged to have been slain. 
 The explanation is this: those two men who stood ac- 
 cused, had lived in the same neighborhood with him , 
 they had encountered him in an adjacent wood ; and 
 having had an ancient grudge against him, they pro- 
 ceeded to wreak their vengeance, and left him, as they 
 supposed, lifeless. This, however, was a mistake, for 
 gathering himself up, after they had left him, and un- 
 willing again to confront them, he set out forthwith to 
 some of the Southern States, as he had previously con- 
 templated, where he remained, until apprised of the 
 peril to which his alleged murderers were subjected ; 
 when he generously presented himself, at the scene of 
 trial, and afforded the ocular proof of their innocence. 
 
 The dead body is not more necessary, than the corpus 
 delicti, I adopt Dr. Togno's doctrine in its greatest lati- 
 tude, when he says " no poison no poisoning ;" and it 
 will afford me infinite pleasure also to show, that this 
 conclusion of a most estimable man, and intelligent phy- 
 sician, is not only obviously correct in itself, but is in 
 entire consonance with undoubted authority, and with 
 the development of every feature, in the course of this 
 important and protracted investigation. 
 
 Montmahou, in his " Manuel des Poisons," page 9, says, 
 " the physician will not .pronounce that there has been a 
 poisoning, until he has found the poison, and can desig- 
 nate and name it." And again, in page 11, "all the 
 medico-jurists agree in thinking, that in order to pro- 
 nounce with confidence, it is necessary to have found 
 the poison." And further, in page 13, he observes, after
 
 148 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 stating the importance of a chemical analysis, " we ought 
 to use the greatest attention in the execution of the 
 various processes employed ; it should be severe, com- 
 plete, and have for its result the reduction of the metal. 
 Indeed, we have arrived at the present day, by rigorous 
 analysis, to discover the thousandth part of a grain of 
 poisonous substance, mixed in liquids, in solids, or even 
 combined with our own tissues. It would be criminal to 
 neglect the means which chemistry offer us, in order to 
 hold to appearances often deceitful." 
 
 The learned counsel has told you, however, that as to 
 his chemical tests, he does not rely upon them you may 
 throw them entirely out of the case Wonderful conde- 
 scension ! If you throw them out of the case, do you not 
 at once perceive, that the condition of the prosecution 
 is infinitely better, than if they are permitted to remain? 
 We insist upon them we rely upon them as a practical 
 refutation of three-fourths of the hypotheses and theories, 
 which cling around the trunk of this charge, " like ivy 
 to old oak, to hide its rottenness." The doctors all agree 
 that no arsenic was reduced, upon the great and final test 
 being applied. Every body that has written, and all who 
 have spoken upon the subject, admit, that the reduction 
 of the metal is the only infallible proof of its existence ; 
 and that it can always be reduced, even where the sixth 
 part of a grain, or one-thirtieth part of the quantity 
 necessary to produce death, remains in the system. Now, 
 as it is admitted on all hands that the chemists were skil- 
 ful, and that all proper means were resorted to by them 
 for the purpose of discovering the arsenic as it is admit- 
 ted on all hands that it might have been discovered if it 
 existed and as it is also admitted that it was not detec- 
 ted, can anything be plainer than that it did not exist 
 and that all the reasoning derived from equivocal patho- 
 logical symptoms, and an imperfect anatomical examina- 
 tion, are totally vague and visionary ? more particularly, 
 inasmuch as I shall have occasion to show you, that the
 
 CHAPMAN CASBs*,. 149 
 
 appearance of those symptoms, and the results of that 
 examination, are not peculiar to cases of poisons, but 
 belong also to many cases of death from natural causes. 
 To strike the chemical analysis from the evidence, there- 
 fore, is no stretch of magnanimity on the part of our 
 ingenious adversaries, but upon the contrary serves only 
 to show, that in the pursuit of blood, they have taken 
 one step too far one important step, and thereby re- 
 deemed us from the operation of all that had previously 
 been attempted. 
 
 But, say they, if we cannot gratify your eyes, by pro- 
 ducing the arsenic in its metallic form, we can at least 
 tickle the nose by the alliaceous odor, which one of the 
 experiments emitted. But, gentlemen, you are not to be 
 led by the nose in a case of this character ; much less are 
 you to be governed by the noses of others. Mr. Clemson, 
 the gentleman who titillated his olfactory eo often during 
 the cause, with the pungent and fragrant Natchitoches or 
 Maccouba, and who was the only individual who arroga- 
 ted to himself a superiority in the sense of smelling, did, 
 it is true, pronounce boldly upon the alliaceous odor, 
 as an infallible arsenical test; but he at the same time 
 conceded, and Dr. Mitchell proved, and we all know, 
 that the faculty of smelling is the most fallible and 
 treacherous of all the human senses, confounding dif- 
 ferent odors affected by the state of mind or body the 
 nature of the atmosphere the condition of the health 
 and an infinite variety of influences unnecessary to be 
 considered. It is admitted the world over, that the 
 sight, which even itself, as Macbeth says, ds often " made 
 the fool of the other senses," is in point of accuracy and 
 perfection, very superior to the smell. We perhaps may 
 be able, therefore, best to ascertain the value of Mr. Clem- 
 son's olfactory, by testing it by the accuracy of his vision. 
 You all remember, when asked by me, whether he could 
 tell the arsenical ring by its appearance, he answered 
 promptly, " yes." I like a prompt answer, even in a case of
 
 150 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 life and death, when it is promptly right. I immediately 
 produced the glass tube furnished by Dr. Mitchell, con- 
 taining the arsenical ring, which was as immediately de- 
 clared by the witness to contain mercury. Dr. Mitchell 
 was then called again, and explicitly stated, that it con- 
 tained no mercury ; and he had a right to know, as it was 
 his own preparation. Now after this failure of Mr. Clem- 
 son's best sense, what would you give for the rest ? I 
 oppose this dumb witness [exhibiting the tube], against the 
 nose of Mr. Clemson, and his eyes to boot. It is small, 
 it is true, but it has a giant's strength. It is mute, un- 
 questionably, yet it speaks with most miraculous organ. 
 
 But, again, suppose the alliaceous odor had been per- 
 ceived I deny its infallibility I deny its probability. 
 All writers agree, that however it may be considered 
 sufficient as a mere chemical indication of arsenic, and 
 for mere chemical purposes, it is utterly unworthy of 
 regard as a matter of conscientious reliance in a judicial 
 proceeding. Even Christison,* the god of their idolatry, 
 declares it should be utterly discarded ; and Berzelius, 
 Orfila, Montmahou, and a host of other distinguished 
 men, consider it as reproachful in the present state of 
 chemistry, that it should be quoted as a satisfactory, 
 or even a reasonable test. 
 
 In page 357 of Orfila, the most celebrated toxicologist 
 of the age, we find this language : " It often happens 
 that doctors charged with making reports before a ju- 
 dicial tribunal, affirm the existence of poisoning by arse- 
 nious acid, because they have found in the alimentary 
 canal, matter, which exhales an alliaceous odor upon 
 being placed upon burning coals. We severely condemn 
 this conduct ; in effect, the alliaceous character belongs to 
 other substances, and it is not impossible that there 
 should be developed in the stomach, during digestion, 
 
 * Christison, 184. Med. and Surg. Jour., vol page 80. Cooper's 
 Med. Jurisprudence, 424.
 
 CHAPMAN CASE. 151 
 
 substances which exhale a similar odor when heated. 
 Besides, does it not often happen, that we are mistaken 
 in the character of odors? Mr Yauquelin and myself, 
 were appointed reporters in a case of poison. The suspec- 
 ted matter was placed on burning coals, at four different 
 times, and twice only, we thought we recognized the 
 alliaceous smell, and we became assured soon after, that 
 it did not contain an atom of arsenic." The character 
 of which we treat, ought therefore to be considered as 
 an indication, and not as a proof, of the presence of 
 arsenic. 
 
 JBerzelius, notoriously the greatest practical chemist in 
 the world, and to whom by common consent of all the 
 most experienced and skilful manipulators either in 
 England or France the proudest distinction has been 
 accorded, thus expresses himself, in relation to this 
 subject.* 
 
 " The reduction only, is to be regarded as a certain 
 proof, and renders all other evidence superfluous. When 
 the reduction does not succeed, the result must be always 
 doubtful, even when we think or believe we recognize 
 the arsenical odor, upon heating with a blow-pipe or 
 charcoal, the calcareous precipitate, obtained according 
 to the method of Rose ; for an operator, little habituated 
 to such essays, may often imagine he recognizes in the 
 odor of animal matters contained in the precipitate, 
 the presence of arsenic, while in truth there is none." 
 
 In addition to these great authorities, you have the 
 direct testimony of Drs. Bache and Togno ; gentlemen 
 who, it is true, have in all probability, run not more than 
 half their career of professional usefulness, yet who have, 
 nevertheless, in the Spring of their fame, afforded 
 ample assurance of an abundant harvest of future emi- 
 nence and distinction. Modest, yet decided ; skilful, yet 
 cautious; they draw at once a broad and obvious line 
 
 * Berzelius, Traite de Cbemie, Tome ii, page 451.
 
 152 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 between the evidence, which will be sufficient to direct 
 their inquiries after mere medical treatment, or chemi- 
 cal results ; and that proof upon which they would be 
 disposed to rely in a solemn judicial investigation. If, 
 as medical men, or chemists, certain observations or ex- 
 periments may have regulated their practice or opinions, 
 in ordinary matters of doubt ; they prudently consider 
 them too imperfect and fallacious, to form the basis of 
 absolute and conscientious reliance, upon a subject so 
 awful and vital as this. They require, as the law re- 
 quires, that the best evidence the nature of the case 
 admits of, should be produced. They require that the 
 symptoms should be unequivocal, or that it should be 
 reasonably ascertained that no natural cause of death 
 existed before they feel themselves prepared to peril 
 the life of a fellow creature, and their own salvation, 
 upon the confident assertion of poison. " We would not 
 be willing," say both those gentlemen, " to decide upon 
 the presence of arsenic without reduction, because we 
 would not be satisfied by any evidence except what we 
 considered the best. The alliaceous odor is not to be 
 depended upon." 
 
 But further ; if the alliaceous smell indicate arsenic, it 
 must be, of course, because arsenic is there.. These fumes, 
 we are told, are the fumes of arsenic ; these fumes, we 
 know, become condensed, and form the arsenical crust on 
 the upper and cooler part of the glass. If, therefore, 
 they were sufficient to prove its existence, they were 
 sufficient, with proper process, to form the metal in its 
 crystallized shape. I agree that it is possible, that the 
 odor should be perceived, without arsenic being de- 
 tected; because it is probable that the odor may arise 
 without the presence of arsenic, and from other substan- 
 ces, as has been shown ; but I deny that the odor ever 
 arises from arsenic, so powerfully as is here described, 
 without the cause namely, the arsenic, being satisfacto- 
 rily ascertained and detected in its metallic form. Hence
 
 CHAPMAN CASE. 153 
 
 I infer, that as zinc, onions, garlic, the phosphates, and 
 other substances may produce that smell, in other 
 words, inasmuch as it is not the peculiar effluence of 
 arsenic, that it was produced from other substances, and 
 not from arsenic. 
 
 But say they there are the liquid tests, which al- 
 though all imperfect, and equivocal, still make against 
 the defendant, with the other proofs "What are these 
 tests ? Let me test them ; for without pretending to be 
 a proficient or expert chemist, I do profess to know 
 enough of the science for this case, and I should be 
 
 O ' 
 
 wanting in my duty if I did not. I have gone through 
 all those experiments myself, with my own hand ; be- 
 stowed mouths of attention and reading upon them, and 
 I can only regret, that still greater time has not been 
 allowed for my researches. 
 
 The first test applied, as an almost universal detecter 
 of metals, is the sulphuretted hydrogen. This test, in 
 arsenical cases, exhibits a flocculent appearance, and 
 throws down a light, clear, yellow precipitate. In the 
 present case, the test was very doubtful, as is stated ; the 
 yellow produced was a darkish and dirty yellow, and no 
 precipitate was perceived. The other test was by the 
 ammoniacal nitrate of silver, in other words, nitrate of 
 silver dissolved in liquid ammonia. This test should 
 have produced a still darker yellow precipitate, attended 
 by the same floccule'ncy. It failed to do either ; and 
 even if it had done both, it is allowed to be a very inse- 
 cure test, unless amply sustained by those that follow, and 
 precede it. 
 
 The third test applied, was the ammoniacal sulphate of 
 copper, which presented an olive green instead of the 
 Scheele green, which is about the color of verdigris. 
 The olive green may be obtained much more perfectly 
 by this test, from ginger, stramonium, rhubarb, chro- 
 mate of potassa, and onion juice, than it was obtained 
 in the present instance.
 
 15i FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 I conclude then, this branch of my remarks, by saying 
 again, that the restoration of the metal is the only infalli- 
 ble test I should rather say proof ; it is the corpus delicti 
 itself. The tests, as they are called, and as they have 
 been referred to, are mere presumptions ; and apart from 
 the result, are not to be relied upon. Wherever there is 
 metal enough, unequivocally, to abide those tests, the 
 metal may be restored ; and chemists have succeeded in 
 reducing less than the 300th part of a grain ; and wher- 
 ever there is not enough thus to abide the test, there is 
 not enough to guess at. The mode of restoring the metal, 
 is perfectly simple, and I will take leave to explain it to 
 you. Having evaporated the liquid containing the sus- 
 pected matter, to dryness ; the dry matter mixed with 
 pulverized charcoal, is placed in a glass tube hermetically 
 sealed at one end. To this end you apply the spirit lamp, 
 until the red heat is produced, when, if there be the 
 slightest portion of arsenic, fumes of the smell of garlic 
 will issue therefrom, and the metal itself, will, instead of 
 fusing, evaporate, and form again in a condensed shape 
 on the upper and cooler parts of the tube. 
 
 But, say the gentlemen, " even had the prosecution 
 succeeded in showing that the metal was reduced, the 
 defendant's counsel might still argue the insufficiency of 
 that fact." Reduce what metal? I agree, any metal, 
 mercury for instance, would not be sufficient, but metallic 
 arsenic would be ; and no argument, however ingenious^ 
 could possibly avail against it ; and no argument, in that 
 case, would have been attempted. We unite with him, in 
 saying, that you could not pretend to determine, because 
 you saw something glittering on the inner surface of a 
 glass tube, that it was arsenic ; for even Mr. Clemson, 
 with all his eyes about him, and after having imbibed 
 the benefit of all the schools of France, most egregiously 
 blundered in that very particular, and has thereby af- 
 forded us a salutary lesson of prudence, from a lamentable 
 example of indiscretion. But the counsel forgets, if he
 
 CHAPMAN CASE. 155 
 
 ever knew, that it is not the mere appearance of the metal, 
 upon which skilful chemists and judicious men would be 
 disposed to rely ; but that the ^netal being first detected, 
 and its general nature defined by the success of 'antece- 
 dent tests, it is upon reduction subjected to other and sub- 
 sequent tests, which present its character in a totally 
 unquestionable shape ; not dependent on the sight alone, 
 the smell alone, the original tests alone, the reproduction 
 alone, or the final tests, but upon all combined, and with 
 all the clear denotement of its deleterious and peculiar 
 arsenical properties. It is in vain, to tell us, that were all 
 these evidences united, and each perfect in itself, errors 
 might still be contended for ; since authority, experience, 
 and reason concur in the utter impossibility of such 
 errors. 1 admit, if you please, as the counsel alleges, that 
 no one chemical result would be conclusive, and it is for 
 that very reason that we require the evidence of various 
 and combined results all conducing to the same conclu- 
 sion. If, as is contended, we should dispute the evidence 
 in its aggregate, so much the stronger was the necessity 
 for sustaining its particular items. Nay, if no one 
 chemical result can form unerring proof, how much less 
 can there be unerring proof where, as in this case, there 
 was not one such result. 
 
 But we have shown, exclaim the gentlemen trium- 
 phantly, that an individual of that house purchased 
 arsenic in Philadelphia, a few days preceding the indispo- 
 sition of the deceased, and the prisoner was in town at 
 the time of the purchase. That the purchase of arsenic, 
 in relation, to this charge, is a circumstance of guilt, need 
 not be a subject of dispute, provided it be connected with 
 the present defendant. It is not so connected. The alle- 
 gation that Mrs. Chapman was in town on the day the 
 arsenic was purchased, is no evidence of participation in 
 that purchase. But the fact was otherwise. She was in 
 the city with Mina, it is true, upon two occasions, but 
 neither of those visits was on the day of obtaining the
 
 156 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 arsenic. Indeed, it was perfectly inconsistent and absurd, 
 to suppose that an individual entirely conversant as she 
 was, with all parts of Philadelphia, and embarked, as she 
 is said to have been, upon a dangerous and deadly voyage 
 should have landed, from choice, upon this perilous and 
 Ansonian shore should have selected, for the first scene 
 of iniquity, an establishment in the very centre of noto- 
 riety, and within fifty yards of the residence of an old 
 acquaintance of herself and Mr. Chapman. Was there 
 no Borneo's apothecary no caitiff wretch to vend this 
 poison to her no remote and obscure " culler of simples," 
 upon whom she could have more securely relied in the 
 purchase of this deleterious drug ? Is she to seek the 
 open and blushing face of day, for the purpose of conceal- 
 ing an object or danger ? to believe it were madness or 
 fatuity, at least. 
 
 Yet, say our opponents, "admitting even that Mina 
 purchased the arsenic without the defendant's immediate 
 participation, it was, nevertheless, in prosecution of a 
 common intent, agreed upon between them." If so, how 
 do you dispose of the argument that the forged letter, 
 written under the instructions of Mina, days after the 
 purchase, and purporting to be from that excellent and 
 accomplished gentleman, Mr. De Cuesta, was communi- 
 cated to her for the sake of whetting her almost blunted 
 purpose? Where was the necessity for it? If she had 
 been previously so ripe and ready for this fell deed, as to 
 cherish the damning thought of. taking her husband's 
 life as even to be active in procuring the means of 
 death the fallen one had already marked her for his 
 own the last feeble struggle for redemption had passed 
 and she was so deeply steeped in guilt as to require no 
 further lures to vice as to defy all further inducements 
 to virtue. If then this forged letter were intended by 
 Mina to deceive her it was not, as the gentleman 
 imagines, to confirm her in iniquity, but rather to win 
 her to iniquity ; and if thus to win her, it must have been
 
 CHAPMAN CASE. 157 
 
 because she was not already won and if not already 
 won, she could never have been a participator in thought 
 or act, in obtaining the poison, which was procured 
 several days before the letter in question was exhibited or 
 prepared. 
 
 Taking leave of this portion of the case, and glancing 
 with comparative civility at the testimony of Dr. Bache, 
 the learned counsel next springs with the fury and 
 rapacity of the hyena, upon that of Dr. Togno impugns 
 its credibility denies its modesty defames and defiles 
 its purity ; and to say nothing of unmeasured language, 
 luxuriously indulges in deliberate, cold-blooded, unquali- 
 fied, and, allow me to add, unwarranted aspersion, for 
 which the meagre apology is offered, that there is left to 
 him but this alternative, either to abandon his own wit- 
 nesses, or speak plainly of ours. As to abandonment, so 
 far as relates to the party colored crew, drawn by the 
 prosecution from the prisoner's household, they were, in 
 one sense, abandoned, before they became retainers in this 
 cause. In regard to the scientific gentlemen examined by 
 the commonwealth, they have been treated by us freely 
 and fearlessly, it is true, as became the nature of the oc- 
 casion, but, nevertheless, frankly, and fairly and respect- 
 fully, as was due to their talents and their virtues. We 
 spoke of no " volunteers " we assailed no motives we 
 impeached no principles, though we liberally discussed 
 the various opinions expressed, and the means and oppor- 
 tunities from which they were deduced. 
 
 If by " speaking plainly" the counsel mean contumeli- 
 ously, his remarks have been as plain as a sunbeam, and 
 almost as bright ; but if, upon the contrary, he would be 
 understood to signify, a just adaptation of thoughts and 
 language, to the immediate subject of discussion ; he will 
 excuse my saying, he has been guilty of a vast and un- 
 pardonable mistake a mistake in first substituting him- 
 self for Dr. Togno, and afterwards applying to that 
 highly respectable gentleman, those observations and re-
 
 158 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 bukes, which, as counsel, he himself so richly merited 
 though so sparingly received. By what principle he has 
 been influenced by what master spirits he has been 
 prompted or directed, we shall not deign to inquire, but 
 proceed to repel the attack, and, in doing so, the learned 
 gentleman must not complain if we resort to weapons 
 similar to those with which it has been made " 'tis fit 
 the artificers of death should die." 
 
 I should be a foe to fealty and to friendship, could I 
 dispassionately stand by, and complacently behold the 
 counsel glutting his vengeance upon an unassuming and 
 unoffending individual, who, actuated alone by justice 
 and philanthropy, has imparted the valuable aid of his 
 testimony to the present defence. 
 
 And is it not most monstrous and unheard of, that a 
 learned gentleman himself a volunteer in pursuit of blood 
 a soldier who has eagerly enlisted in this magnanimous 
 war, without even the temptation or inducement afforded 
 by the bounty, should for the purpose of proving his loyalty 
 and submission to the power he serves, not satisfied 
 with wreaking his wrath upon the devoted head of the 
 defendant, venture even to grapple with the integrity 
 of a highly honorable man, for no other reason, than 
 because, forsooth, his evidence presents an impenetrable 
 and insurmountable barrier, between the commonwealth 
 and her intended victim. 
 
 Dr. Togno's testimony, I cite the counsel's very lan- 
 guage, is " obtrusively adverse" and therefore, the witness, 
 we are told, shall have the melancholy consolation " of 
 dying on his own sword." Heaven save the mark ? The 
 doctor could not die upon a more unsullied sword, or in a 
 nobler cause. A sword, allow me to observe, that cannot 
 even be dignified by the illustrious hand of the distin- 
 guished advocate, by whom it is proposed to be wielded. 
 But let not the counsel talk of slaying, until he has, at 
 least, first established his lofty claims to valor, upon the 
 ruins of this wretched, persecuted, and oppressed family.
 
 CHAPMAN CASE. 159 
 
 Let him first, I say, wage a successful and exterminating 
 war, against helpless women and unprotected children. 
 " Discretion is the better part of valor." If he will play 
 the falcon, he must not only fly a "higher pitch," but make 
 his first experiment upon harmless doves, ere either his 
 beak or his talons will prove subjects of alarm to the 
 towering and majestic eagle. Enough of this I almost 
 owe Dr. Togno an apology for having breathed a word in 
 his support he is above all assault he requires no de- 
 fence, but clothed in the protection of a spotless and 
 irreproachable character stands self-dependent and self- 
 sufficient. 
 
 " The gentlemen examined for the prosecution, do not 
 remember to have seen Dr. Togno at Dr. Mitchell's labor- 
 atory." "Wonderful oversight 1 and, therefore, I suppose 
 Dr. Togno, who swears he was present upon that occasion, 
 partially describes what took place, and particularly men- 
 tions the individuals engaged in the experiments must 
 have drawn all these matters from fancy and not from 
 fact. Can any man doubt his presence if not, the cir- 
 cumstance of its not being remembered by our other 
 scientific friends, may show their own want of memory, 
 but cannot impair the recollections of his. Ah ! but says 
 Mr. Reed, he would give us to disbelieve that the 
 stomach was the seat of any inflammation at all, after a 
 very hasty and unsatisfactory examination. I put him 
 in opposition to Dr. Coates intelligent and respectable 
 as he is, who decided that the internal surface of the 
 stomach was highly inflamed, without ever opening it, 
 upon a very slight examination of the peritoneal coat, 
 and I am content to abide by your decision between 
 them. I put it in opposition to the statement of my 
 friend, Dr. Hopkinson, who was satisfied that the 
 stomach contained the cause of the untimely death of 
 the deceased without ever having seen its contents, 
 or examined other most important parts of the body. 
 T put it in opposition, even to the highly and deservedly
 
 160 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 lauded testimony of Dr. Mitchell, who, from a skilful 
 and miraculous combination Df a variety of uncertainties 
 and fallacies, rendered everything so perfectly evident, 
 " that it would glimmer through a blind man's eye." I 
 put it, in short, in opposition to everything to be derived 
 from this portion of the case, with the exception, let it be 
 always understood, of Mr. Clemson's refined and delicate 
 sense of smelling, and his unrivalled his transcendent 
 powers of discrimination, between arsenic and mercury ! 
 
 Passing from the chemical to the anatomical part of 
 the examination, we are by no means relieved from the 
 doubts and difficulties by which the understanding is 
 clouded and embarrassed. Upon visiting the grave yard, 
 what are the circumstances attending upon the exhuma- 
 tion ? The body, which was disinterred about three 
 months after its interment, was found, we are told, in a 
 state of perfect and unusual preservation. Unusual 
 how do we ascertain that ? Not a physician who has 
 been examined has ever seen a body after an interment 
 for three days, much less three months ; they have, there- 
 fore, no experience upon the subject in relation to which 
 , they speak. This preservation is imputed to the effect of 
 arsenic. Miraculous ! arsenic enough to preserve this 
 body, and yet not enough to be detected subsequently by 
 all the accomplished and skilful chemists employed ! It 
 is true, as they say, that arsenic is considered an antisep- 
 tic, and is thus used in the preparation and preservation 
 of birds after death, but the quantity thus required is 
 very considerable, small as the bodies may be, and 
 can easily be detected. It is no answer, therefore, to the 
 argument already addressed to you in relation to the 
 failure of the chemical experiments. 
 
 Further the best opinions of the ablest writers, incul- 
 cate the belief, that only that portion of the body which 
 is more immediately affected by the arsenic is liable to be 
 preserved. Yet, in this case, the whole of the human 
 frame was equally preserved. It would be useless to
 
 CHAPMAN CASE. 161 
 
 refer to authorities for this principle, as it will hardly be 
 denied. 
 
 It is unnecessary, however, to dwell longer upon these 
 theories, when the facts connected with the interment 
 sufficiently explain the phenomenon. The pastor of the 
 church has told you, that having found fault with his 
 sexton for digging his graves too shallow, the sexton 
 afterwards fell into the opposite extreme, and dug them 
 of an extraordinary depth. In addition to this, the soil 
 was of a dry, sandy character, covered with a stratum of 
 clay, which protected it from moisture, which protection 
 was increased by the declivity of the surface of the 
 ground. Now Orfila, in his treatise upon exhumation, 
 and even the scientific witnesses who have testified in 
 this cause, show conclusively, that this cause is entirely 
 sufficient to account for that preservation, which, by 
 some, has been attributed to the influence of the poison. 
 
 The next ground of reliance on the part of the prosecu- 
 tion, is the anatomical investigation. It seems that the 
 body was opened, and the stomach removed, under the im- 
 pression that " the cause of death," in the language of Dr. 
 Hopkinson, whatever it may have been, " was contained 
 therein." The lower intestines were found perfectly empty, 
 and appeared " as if they had been hung up to dry." 
 
 The rectum was not examined nor the brain nor the 
 heart and larger vessels nor the liver. I will not pause 
 to show you how essential it was, that the examination of 
 all should have taken place in a case of such vital im- 
 portance. I will not dilate upon the habits conforma- 
 tion, and constitution of the deceased, and the probability 
 or possibility of death from natural causes. I am satis- 
 fied to take the examination as it was to try it by 
 itself for " none but itself can be its parallel." The 
 stomach was removed it was not opened and yet Dr. 
 Coates, one of the physicians, from its external appear- 
 ance, ventured to pronounce upon its internal state. 
 He saw through the covering,- the peritoneal and muscu- 
 
 11
 
 162 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 lar coat, and undertakes to tell us, from this superficial 
 view, not only the character of the inflammation of the 
 mucous membrane, or lining of the stomach, but also to 
 distinguish between congestion and inflammation. I 
 aver this to be utterly impossible, and I regret exceed- 
 i n gljj that a highly respectable man, and a meritorious 
 physician, should have been betrayed by the excitement 
 of the occasion, into such unnatural perspicacity. I have 
 not the least question of the entire honesty of the 
 doctor's intention ; I can have none but he must pardon 
 me when I say, his opportunities of observation were 
 entirely too limited to be depended upon. 
 
 "While on this subject, what says Orfila? "The exist- 
 ence or non-existence of cadavaraque lesions the extent 
 and seat of disease, are never sufficient to enable us to 
 pronounce whether there has or has not been poison ; and 
 they can only serve to corroborate the conclusions derived 
 from a chemical analysis of the suspected matter."* 
 
 Nor is the testimony of Dr. Hopkinson a more legiti- 
 mate source of reliance, skilful and accomplished as he is 
 acknowledged to be, in the science which he professes. 
 He ingeniously concedes the fact, that his anatomical in- 
 quiries were very imperfect ; that it was the first occasion 
 of this nature in which he had been employed ; and that 
 supposing that the stomach contained the deleterious or 
 poisonous substance, he considered it to be useless to pro- 
 ceed any further. I wish it to be understood, once for 
 all, that I find no fault with these gentlemen, but 1 pro- 
 test 'altogether against the attempt to infer poison from 
 what did not appear, when they had it in their power by 
 sufficient care and attention, to have decided the question 
 one way or another : and having omitted to do so, we are 
 entitled to argue that a further examination, would have 
 removed, rather than confirmed, their previous suspicions. 
 
 In regard to the "herring" or fishy smell, issuing from 
 
 * Orfila (last edition), Tome, i, page 370.
 
 CHAPMAN CASE. 163 
 
 the body when opened, it is hardly necessary to say any- 
 thing. Without attempting to he witty, it affords at 
 best, but a scaly reason for a conviction. Its only recom- 
 mendation to attention, is, that the doctor never smelt 
 anything like it before. I presume he must before have 
 opened stomachs containing arsenic ; and if so, not hav- 
 ing met with a similar smell, confirms the idea that 
 this was not arsenic. But if the fact were otherwise, his 
 never having encountered a similar effluvia, assuredly 
 does not show that this smell was peculiar to arsenic. 
 There is no book that confirms or suggests that idea. He 
 never before opened a body after three months' interment, 
 and in like circumstances, and the similarity of facts fail- 
 ing, the reason also fails. Dr. Mitchell, it is true, having 
 introduced arsenic into a dead stomach, after some 
 months detected a similar odor. Yet we know nothing 
 of the state of that stomach, of the nature of the disease 
 which produced death, of its cadavaraque appearances ; 
 and therefore it affords us no scope for analogical inquiry. 
 But an answer to all this, is derived from Dr. Coates, who 
 tells us that the smell did not seem to him to resemble 
 that of herring, but rather that of tanner's oil. Now I 
 leave you to decide between the noses of these doctors, 
 while I proceed to consider the other portions of this case. 
 Inverting the natural course of things, and pursuing 
 that adopted by our antagonists, from a desire of grap- 
 pling with them on their own ground, we come next to 
 the chamber of disease and death ; and let us approach it 
 with a gravity that becomes the scene. On the night of 
 the 17th of June the deceased was first attacked. He 
 continued ill until the morning of the twenty-third, at 
 about two o'clock, when he expired. During his illness, 
 he made violent attempts at vomiting, which but partially 
 succeeded. He complained of burning pains in his 
 stomach. Towards the close of his career, he became 
 delirious, and in his last hours his pulse was feeble and 
 fluttering ; his mouth was dry, and his skin clammy and
 
 164 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 collapsed. After his death, a small quantity of what was 
 called " bloody serum " by Dr. Phillips, was found on the 
 sheets, and supposed to have been involuntarily discharged 
 per anum. Some time after his death, say three or four 
 hours, an unusual rigidity of the body was observed by 
 Mr. Boutcher, who, upon that occasion, performed the 
 last sad office of an undertaker. These are the dark de- 
 notements, which, together with the other circumstances, 
 must supply the evidence of poisou. By whom adminis- 
 tered, is another question. If there were no poison, there 
 was no poisoning, which goes to the whole charge. 
 
 Dr. Mitchell, for whom as a physician, a friend, and a 
 man, I have the highest regard, informs us that the 
 chemical tests were equivocal ; that the anatomical ex- 
 aminations were imperfect, and not to be relied upon; 
 that the preservation of the body was fallacious ; that the 
 symptoms themselves were not peculiar; but, neverthe- 
 less, that from the combination of all, he had arrived at 
 the conclusion "that William Chapman died from poison." 
 This is is a home-thrust, and we must parry it or die. I 
 deny then, in the outset, that by the combination of other 
 things, each in itself imperfect, perfect proof can be ar- 
 rived at. I deny that a chaplet of fallibilities, however 
 artfully strung together, can form an infallibility. On 
 the contrary, the concatenation renders imperfection less 
 perfect, and fallibility more fallible. " The mind," says 
 Lord Bacon, " has this property, that it readily supposes 
 a greater order and conformity in things than it finds. 
 Although many things in nature are singular and ex- 
 tremely dissimilar, yet the mind is still imagining parallel 
 correspondences, and relations betwixt them, which have 
 no actual existence." 
 
 But without being an admirer, much less a disciple of 
 the Bobadil school, let me encounter some of these 
 theories in detail. The symptoms, for instance the 
 nucleus of the whole hypothesis. They are symptoms 
 that belong to cholera morbus, to violent indigestion,
 
 CHAPMAN CASE. 165 
 
 some of them to dysentery ; none of them peculiarly to 
 poison. But, says the learned counsel, as any and all of 
 them may be found in arsenical cases, you have therefore 
 the right to presume, from their existence here, that this 
 was a case of death by arsenic. Not so, my learned 
 friend : if they are also to be found in natural diseases, 
 you are bound to presume, influenced by the benign prin- 
 ciples of the law, that they were the effects of natural 
 causes. Show us, saj r s the counsel, triumphantly, any 
 one of these symptoms, which is not to be found in cases 
 of poison. I fearlessly answer, we cannot ; for the phases 
 of arsenic are as various as the constitutions and tempers 
 of men. They put on the semblance of every disease, 
 and chameleon-like, change while you describe them. 
 But let them show ws, if they can, any symptom not to 
 be found in other cases of disease, and they will have 
 established an important point, in the detection of arseni- 
 cal poison. Nay, more not relying merely upon their 
 inability to do this, I will satisfy you, that the main and 
 characteristic indications or symptoms of arsenic, even 
 according to Dr. Mitchell himself, are wanting in this 
 case. 
 
 Dr. Mitchell has given us some of the grounds, from 
 which he deduces the notion of poison. The involuntary 
 discharge of bloody serum ; the absence of delirium ; the 
 rigidity of the corpse ; and last, but greatest, the diseased 
 rectum. When, wonderful to relate, there is no certainty 
 of any involuntary emission; and there is a difference 
 between Mr. Boutcher and Mr. Phillips, as to the bloody 
 discharge. And even had it taken place, there are vari- 
 ous complaints which would produce it. As to the ab- 
 sence of delirium, not a witness has mentioned it ; but 
 Dr. Knight and Dr. Phillips both state, that he was de- 
 lirious from time to time, for twenty-four hours before 
 his death. If, therefore, absence of delirium be an indi- 
 cation of arsenic, the presence of delirium is evidence 
 against it. The rigidity of the limbs if admitted by
 
 166 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 us is easily accounted for, the body having been per- 
 mitted to remain several hours in the bleak air of the 
 morning, before any , attempts at laying it out were 
 made. But it is still less to be regarded, when it is 
 understood, that Mr. Boutcher, so far from being, as the 
 doctor supposed, an experienced undertaker, was but 
 a neighboring individual, accidentally performing these 
 rites ; who, perhaps, had never seen a dozen dead bodies 
 in his life, and who tells you himself that although he 
 had sometimes done these things, he had ceased to do 
 them for several years before. He perhaps had never 
 performed the service in similar circumstances, and his 
 vague impressions in respect to the stiffness of the limbs, 
 are too flimsy and indefinite to be entitled to much re- 
 spect. 
 
 As I have said, the last and greatest argument for 
 poison, is the diseased rectum. This is establishing a 
 disputed fact, from an inference; when the fact might 
 itself have been ascertained, instead of drawing an in- 
 ference from facts. Nay, more and worse than that : 
 an inference of poison is derived from an inference of a 
 diseased rectum. Not a witness has proved it. Not a 
 witness who was present, has mentioned it. No com- 
 plaint was ever uttered by the deceased about it, though 
 the circumstances attending his illness, as particularly 
 described by Dr. Knight, were obviously such as to in- 
 duce complaint, had this imaginary cause actually ex- 
 isted. So that you perceive the process, by which these 
 learned Thebans arrive at the conclusion of poison, is by 
 first stating the general symptoms of poison ; and sec- 
 ondly, imagining correspondent symptoms in the de- 
 ceased, some of which never appeared ; and the very 
 opposites of others, having been abundantly established. 
 A single remark, and I bid farewell a long farewell to 
 physic. I have been surprised and astonished at the silly 
 sequel to that story, whose preface promised so much 
 wisdom ; and I think I utter your sentiments, when I
 
 CHAPMAN CASE. 167 
 
 say, that however skilful our scientific friends may be 
 in preserving life, and I know no men in whom I would 
 more readily confide, with such evidence as this, they 
 are utterly incapable of destroying it. I respect them all 
 I honor them all ; and to Dr Mitchell particularly, I 
 have confided, and would still confide, the health of those 
 much dearer to me than myself. Bu't experience has 
 taught me this salutary lesson of human nature, that 
 whatever may be the gradations in refinement, whatever 
 may be the immeasurable difference in intellect, whatever 
 may be the advantages of science, still, in the essential 
 constituents of the human character, men are at last but 
 men ; alike subject to passion, to prejudice, to error ; and 
 perhaps more strongly confirmed and sustained in all, by 
 that very refinement of reason, and expansion of thought, 
 for which, in general, they are so justly celebrated and 
 admired. 
 
 Pursuing the course marked out by our learned friends, 
 though by no means that which I had proposed myself to 
 adopt, I now pass from the pathological, anatomical, and 
 chemical inquiries, to what is termed by them, the cir- 
 cumstantial proofs in this case. Circumstantial evidence 
 it should rather be called, as the term proof implies a 
 higher claim to regard than belongs to this species of 
 testimony, even in its best estate. I will consider it in 
 the order, perhaps I should say disorder, in which it has 
 been presented. 
 
 As to Mary Ann Palethorp, the little girl of twelve 
 years of age, who served as a modest and ingenious pio- 
 neer, for the introduction of bolder and more reckless 
 spirits, scarcely anything need be said. She is a child 
 an artless and an interesting child and far, far be it 
 from me, to impugn or impeach her in the slightest par- 
 ticular. 1 believe what she has said to be as sacred as 
 though an angel spoke. But were it otherwise, my flight 
 is winged above the heads of children, whatever may be 
 their imperfections or inconsistencies, and has for its ob-
 
 168 FORENSIC SPEECHES OP DAVID PAUL BROWN. 
 
 ject and its prey, those who by the maturity of their 
 crimes, are no longer protected from impunity. 
 
 First, in the first rank of those, stands the redoubtable 
 Ellen Shaw dux foemina facti an Amazonian Queen a 
 modern Penthesilea ; sustained on the right by the peer- 
 less Fanning, on the left by the blushless Bantom, and 
 leading on a host of other worthies, in this charitable 
 crusade against a woman a mother and a benefactor. 
 It has been the melancholy fate of the defendant, to 
 nurse vipers in her bosom ; to warm them into life, and 
 to be the victim of their venom. Her verj 7 charities are 
 converted into implements of assault. The abandoned 
 profligate, Mina, the great exemplar of this wretched 
 crew, after having been discarded with revilings and re- 
 proaches from every other asylum, presents himself at the 
 door of the defendant about the middle of May, in the 
 evening, a beggar and an outcast. He solicits alms 
 he craves a night's lodging. Under the twofold influence 
 of pity, and that duty which is enjoined by divine au- 
 thority, her house and her heart are opened to him ; and 
 she contemplates with the anxious and melting eye of a 
 mother, the friendless condition of her own children, in 
 beholding that of the wanderer. In the language of di- 
 vine inspiration, as impressively quoted by my colleague, 
 " he was an hungered, and she gave him meat ; he was 
 thirsty, and she gave him drink ; he was a stranger, and 
 she took him in ; naked, and she clothed him ; sick, and 
 she ministered unto him." 
 
 But, returning from this episode, to the testimony of 
 Ellen Shaw, we find a blister on the very forehead an 
 odious blot on the very title page of her evidence, yie 
 informs you that she was in the yard when Mina first ar- 
 rived ; that " the dogs barked at him as he passed by 
 them ;" that he knocked at the kitchen door, and she told 
 him that he had better apply at the hall door, which he 
 accordingly did. That Mr. and Mrs. Chapman came out, 
 and that the former observed to him in answer to his
 
 CHAPMAN CASE. 169 
 
 inquiries, that there was a tavern a short distance below ; 
 that Mina replied he had already been refused assistance 
 at that tavern, and that Mrs. Chapman then took him 
 into the room, and began to talk to him, and that the 
 door being shut, the witness went into the kitchen. Now 
 one-half of this story is the very coinage or her brain, 
 for Mary Palethorp, another witness for the prosecu- 
 tion, distinctly says without speaking of the testimony 
 of the little Lucretia, who is worth a host of Ellen 
 Shaws that Mr. and Mrs. Chapman were tranquilly sit- 
 ting in the parlor ; that Mr. Foreman went to the door ; 
 that he returned, and told Mr. Chapman there was a 
 stranger at the door ; that Mr. Chapman requested Mr. 
 Foreman to show him in ; that he was then introduced 
 into the parlor, and there the conversation just referred 
 to, took place. 
 
 Thus, you perceive, Ellen Shaw not only states the 
 fact of Mr. and Mrs. Chapman's presence at the door, 
 which was not true ; but relates a conversation as having 
 taken place at the door, which actually took place in the 
 parlor, and with closed doors, while she, Ellen, was in the 
 kitchen. To place the mildest interpretation upon this 
 story, it is either imaginary, or she has totally con- 
 founded that which she knew, with that which she de- 
 rived from other and illegitimate sources. The incon- 
 sistency, however, does not rest here. She states to you, 
 that Mina, upon his arrival, had on a dark, or black suit 
 of clothes, and a long coat ; while Mary Palethorp says 
 he wore a light roundabout. This, though I admit it is 
 unimportant in some of its relations, still shows how little 
 dependence is to be placed upon the accuracy of the wit- 
 nesses. 
 
 But Ellen proceeds yet further, and says, preserving 
 the same spirit which she manifested in the outset, that 
 Mrs. Chapman, a day or two after his arrival, accompa- 
 nied Mina to Count Bonaparte's ; they went in the car- 
 riage in the morning, and returned in the evening. She
 
 170 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 omits altogether to mention that Mr. Ash was their com- 
 panion in the journey, and that it was with the entire 
 approbation of Mr. Chapman. That this was an inten- 
 tional omission, can hardly be denied, when we remember 
 how remarkably tenacious her memory appears to be, in 
 regard to the minutest circumstance that is calculated to 
 operate in favor of the prosecution 
 
 " It was during this ride," says the learned counsel, 
 " illicit love lighted up his unholy fires in the bosom of 
 the defendant." How delightfully or frightfully roman- 
 tic! The first attempt, evidently, on the part of the pros- 
 ecution, was to show the acquaintance between the priso- 
 ners, anterior to the arrival of Mina at Andalusia ; and, 
 therefore, was it that Mary Palethorp was asked : " who 
 appeared best to understand him when he arrived ?" to 
 which she answered : " Mrs. Chapman." But being driven 
 from this position by their own witnesses, the next effort 
 is, as I have shown you, to infer a criminal alliance be- 
 tween them, from the period of visiting Bonaparte's; 
 which was but two days after the reception of Mina, at 
 Mrs. Chapman's hospitable abode. This is a fancy, un- 
 rivalled in all the legendary lore of outrageous fiction. 
 " The Libertines," " the Monk," " the Black Forest," " the 
 Mysteries of Udolpho," and all the other mysteries that the 
 world ever heard of, saw, or wondered at, never presented 
 to the human mind so shocking a monstrosity as this. A 
 beggar " a cut-purse of the empire ;" a vagabond, who in 
 personal appearance was not the " twentieth part the tithe 
 of her precedent lord ;" a wretched tatterdemalion, fit only 
 for a scarecrow, wins at first sight the defendant from 
 her loyalty from her husband, with whom she had lived 
 in harmony for thirteen years from her children, upon 
 whom she doated nay, even from herself! Where, 
 except in the prolific fancy of the ingenious counsel, do 
 you derive support for this notion ? Even Ellen Shaw 
 tells you, that upon her return she spoke of him as a 
 son as a brother,to her children ; and I ask you whether
 
 CHAPMAN CASE. 171 
 
 it is possible for illicit love to mingle his lurid fires with 
 the hallowed flame of maternal tenderness and affection. 
 
 The next part of Ellen Shaw's testimony, is that which 
 relates to the conversation between her and Mr. Chap- 
 man, during the absence of Mrs. Chapman with Mina, at 
 the city of Philadelphia, for two or three days. Now, 
 whether any such conversation took place with her, is 
 exceedingly doubtful, as Fanning says she was not pres- 
 ent ; but take it as it is. This female lago tells you, that' 
 upon the husband's complaining of his wife's absence, she 
 hinted to him, that it was probable they had gone to 
 Mexico, as she had heard them speak of such intention. 
 Yet she never heard them, and admits she never heard 
 them ; and thereby she convicts herself in the first place, of 
 falsehood ; and secondly, she shows from what cause we 
 need not stop to inquire that her feelings towards Mrs.' 
 Chapman were of the most hostile and malignant char- 
 acter. 
 
 Without pausing to notice her various anachronisms 
 the allegations of her desire, and that of her children, 
 that she should leave the place her confounding spiritual 
 and temporal songs together her pious ejaculations on 
 the subject of family prayer her abominable perversion 
 of the true state of the facts in respect to Mr. Chapman's 
 having been compelled, by his wife, to make the beds 
 all of which matters have been brushed away from me, 
 by the friendly hand of my colleague I say, without 
 making these separate subjects of remark ; let me merely 
 ask, while thus glancing at them in rapid review, whether 
 there is a man on that jury who would be satisfied to 
 abide by that test, which worthless, discontented, and 
 discarded servants, might be disposed to apply, to the 
 least questionable, to the most laudable of all his domes- 
 tic arrangements. The language the manner the mat- 
 ter when tortured in her intellectual or moral crucible, 
 lose all their value their gold is turned to dross. 
 
 Again, in speaking of her visit to Mr. Wright's, a visit
 
 172 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 made for her own personal gratification, a few days be- 
 fore she left the house at Andalusia, she mentions that 
 Mina, " pretending to be sick, threw himself back upon the 
 lap of Mrs. Chapman, who supported him in her arms ;" 
 and yet she omits to mention altogether, that Mina also 
 rested in her lap, though it was obvious to all, that she 
 was a perfect antidote to the tender passions. Nay this 
 is not all : upon arriving at Mr. Wright's, she informs 
 you that Mina and Mrs. C. took a walk in the woods, for- 
 getting altogether the fact extracted from her upon the 
 cross-examination, that they also invited her to walk ; 
 and that the house of Mr. Wright, upon their arrival, 
 was in such a state, as to be unfit to receive them ; and 
 that, therefore, they were compelled to walk, as they had 
 no opportunity of sitting. If you choose to be suspicious, 
 why, to be sure, you may perceive impropriety in this, as 
 you may in any other step in life ; but, in itself, it is en- 
 tirely harmless, and totally consistent with the most im- 
 maculate virtue. 
 
 The malevolence of this witness towards the prisoner, 
 was clearly to be inferred, from her promptness in answer- 
 ing, whenever her answer was unfavorable to the defend- 
 ant ; and from her mental reservation her suppression 
 of the truth, in those particulars which were calculated 
 to explain what otherwise might exhibit a semblance of 
 guilt. But we are not left to mere inference of malevo- 
 lence. You have it in distinct proof in proof from Ellen 
 Shaw herself, who, if she can establish anything, it must 
 be her own unworthiness. When injudicious^ called a 
 second time by the prosecution, we took the liberty of ap- 
 plying the touch-stone " to see if she were current coin 
 or not." She was asked whether she had had no differ- 
 ence with Mr. and Mrs. C. ; she answers none. But were 
 you not dismissed from their service ? " Well," said she 
 in reply, "didn't I go? and they got an old drunken 
 wretch from the road in my place, but she did not stay 
 long." Can you have any doubt, gentlemen, after this,
 
 CHAPMAN CASE. 173 
 
 that her malice, thus engendered, has for the last twelve- 
 mooth been confined like subterranean fire within her 
 bosom, at last thus to burst forth and spread a ruin 
 around. She presents before you the shocking anomaly 
 of a human volcano, breathing nothing but flames, devas- 
 tation, and death. 
 
 Let us turn from this disgusting picture to the next 
 witness presented on the part of the prosecution Mrs. 
 Esther Bache. Her testimony is of but little importance. 
 She relates what took place between Mina and Mrs. C., 
 and says that Mr. C. having attempted joking with him, 
 he gave Chapman a very ill look. It is somewhat hard 
 to find fault with this, as he certainly had no other look 
 to give. But, says the witness, Mrs. C. apologized, and 
 laughingly said, " Mina does not understand a word Mr. 
 Chapman utters." This, to be sure, was wonderful, and 
 bears its own comment with it. I only ask Mrs. Bache 
 what she would have done, and wherein consisted the 
 supposed impropriety ? 
 
 But the witness says, that Mina sat on the right hand 
 of Mrs. Chapman at table. Where should he sit? at 
 the head ? at the foot ? If he had taken either of those 
 places, it would have been downright treason ! Which 
 side Mrs. Bache sat, we have not learned, but considering 
 she never sat down but twice at the table with Mina ; and 
 never was in the house with Mrs. Chapman beyond a day ; 
 and then in the capacity of a seamstress ; her observations, 
 critical and explanatory, of the domestic regulations of the 
 family, were truly remarkable and surprising. Mrs. 
 Bache has every appearance of a respectable woman, and 
 no doubt is so ; but she is one of those ladies with whom 
 Ellen Shaw, and Ann Bantom, have been talking, and 
 what, independently of their communications, she would 
 have considered as every day trifles ; when connected with, 
 or engrafted upon their stock of knowledge, produces to 
 her mind a ripe harvest of forbidden fruit, 
 
 " Whose mortal taste, brought death into the world, 
 And all our wo."
 
 17-i FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 Ann Bantom, who modestly takes the third place in 
 this melancholy procession, but who has strong claims to 
 be first, will now be introduced to your notice. She, I 
 suppose, has been brought forward to give some color to 
 their case. Thus it is, gentlemen of the jury, " black spirits 
 and white" are conjured and raked up, from the vile re- 
 cesses of the kitchen and the garret and arrayed here 
 before you upon this trial, like Milton's devils " fierce as 
 ten furies, terrible as hell." The day darkens at their ap- 
 proach, and the radiant smile that beams from the brow 
 of innocence, fades away beneath their withering and 
 demoniac charm. 
 
 Ann Bantom is the pivot upon which the whole case, 
 exclusive of the medical branches of it, must rest. The 
 second proposed general inquiry, relies entirely upon her 
 for its solution, at the same time that her testimony mate- 
 rially affects the first. Thus important, I fearlessly plant 
 the standard of my defence upon their own soil. I am 
 content to encounter them with their own arms, and sub- 
 mit unmurmuringly to the issue of the conflict. A word 
 or two, for the general recommendation of Ann Banjom 
 to our regard. She was employed as an out-door servant ; 
 occasionally, though not often, had attended on Mondays 
 to assist in washing; and without, for aught that appears, 
 any other connection with the family. Having generally 
 been there on Mondays, how she at this late period, iden- 
 tifies the precise day upon which the events which she 
 relates took place, I know not, and I care not ; but I will 
 consider them as they have been communicated ; and for 
 that purpose, I am sure you will accord me a patient and 
 attentive hearing. 
 
 Ann Bantom says she was at Andalusia the Monday 
 after Mr. C. was taken sick ; and it is not a little re- 
 markable, having no kind of acquaintance with Mr. Chap- 
 man, that she should have gone uninvited into his cham- 
 ber in the morning, to inquire after his health to find him 
 better ; and that she should again go up in the afternoon
 
 CHAPMAN CASE. 175 
 
 of the same day, to make similar inquiries and to find 
 him worse. I pronounce this remarkable in itself, but it 
 is rendered more so, by the recollection that it does not 
 appear she had ever spoken to him before ; and that on 
 the next day after the Monday referred to, she neglected 
 altogether paying him a visit, though she knew he was 
 worse ; and at last was urged up into his chamber by his 
 wife, for the purpose of being convinced how important 
 it was, in the helpless state of the family, that her ser- 
 vices should not be withdrawn. This may be all true, 
 but much of it is extraordinary Those two visits on the 
 morning and afternoon of Monday, bear strange denote- 
 ments. The prosecution required that somebody should 
 see him in the morning, to observe that he was better, 
 and then see him in the afternoon, to find that he was 
 worse ; while in the interim the soup is to be given to 
 the patient, and the deduction of poison is complete. All 
 these matters are derived from the witness whose testi- 
 mony we are now considering. Let us turn particularly 
 to her statement. [Notes of her testimony here read.~\ 
 
 " Mrs. Chapman," says the witness, " boiled the 
 chicken and prepared the soup." That the hand of 
 the wife should minister to the wants of the husband 
 in the hour of disease, is assuredly no subject of legiti- 
 mate complaint : yet such is the dilemma of Mrs. Chap- 
 man, if she gave her husband nothing, she is branded 
 with unparalleled cruelty, and if on the contrary, she 
 comply with the express directions of the physician, and 
 prepare his food or diet, it is only for the purpose of 
 infusing poison into it. Had she for a moment contem- 
 plated so horrible a deed, might not the soup have been 
 as well prepared by any other hand ? The introduction of 
 the arsenic, was the work of an instant ; and it is alleged 
 to have taken place some time after the soup was made. 
 There was every thing to deter her, if actuated by the 
 imputed purpose, from unnecessarily connecting herself 
 with a transaction, from which such direful results were
 
 176 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 to spring. It was not usual, we are told, however, for 
 Mrs. C. to attend to culinary concerns. It may not have 
 been, but this renders our reasoning the stronger, even as 
 applied to this condition of facts 
 
 One small circumstance, however, has escaped the 
 memory of our friends, and it almost escaped that of 
 their witness ; which is, that on this ver}' Monday, 
 Juliana, the cook, had been taken sick ; and Ann Bantom 
 being engaged out of doors, nobody remained to attend 
 to the preparation of the soup but Mrs. Chapman. Yet 
 still, perfectly as this portion of the case is explained ; if 
 you choose, as the counsel do, to take it for granted she 
 is guilty, even this circumstance makes against her. But, 
 if you are to decide upon the testimony, I will not say 
 it is irreconcilable with guilt, but I do say, it is per- 
 fectly reconcilable and consistent with entire innocence. 
 
 To resume the course of the evidence : The soup hav- 
 ing been made about dinner time, after putting salt in it, 
 it was taken up by Mrs. Chapman into the parlor, for the 
 purpose of seasoning. I cannot understand this exactly, 
 and perhaps it is not necessary that I should. Ann Ban- 
 tom follows Mrs. C. into the parlor, where she finds 
 Mina. She does not remember what she went up for, 
 but having fulfilled her purpose, she returns again into 
 the kitchen. In the afternoon of the day, the soup, or 
 what remained of it, was brought down by Mrs. C. and 
 placed upon the kitchen table; and the chicken was sub- 
 sequently taken up, and afterwards brought down almost 
 entire, if not quite, and also placed upon the same table, 
 where they both were permitted to remain, until thrown 
 out untouched, by this faithful and economical servant. 
 After this, the ducks of Mr. Boutcher, to the number of 
 twenty, died ; and the argument was intended to be 
 nay, was that the poisoned soup produced their un- 
 timely end. Now let me consider this, and if I do not 
 totally demolish the reliance of the prosecution, upon 
 their own testimony, I will never open my lips again in a
 
 CHAPMAN CASE. 177 
 
 court of justice; but ever hereafter, shroud my dimin- 
 ished head in obscurity and oblivion. This soup, say 
 they, was poisoned soup: how can you for a moment 
 reconcile with that idea, or rather with the idea of Mrs. 
 C.'s knowledge of the poison, the resistless fact of the 
 poisoned chalice having been permitted to remain for 
 nearly half a day, upon the table in the kitchen, in the 
 very centre of her children, who were there at play ; and 
 subject also to the appetites of her servants? Do you 
 can you suppose, that she designed the destruction of her 
 entire household, little ones and all ? Nay do you sup- 
 pose that she designed directly to contribute to her own 
 inevitable detection ? Both sympathy and selfishness 
 alike revolt at the idea. If poison had been infused 
 into the soup without her knowledge, she is free from 
 crime ; and if it existed at all, it is only by supposing it 
 to be without her knowledge, that you can account for 
 these extraordinary measures. For all the uses of this 
 argument, I care not whether Lino purchased two ounces 
 of arsenic, or two pounds, a day or two preceding Mr. 
 C.'s death. It may make against himself, but not against 
 the present defendant, for, whether the deceased died 
 from natural causes, or from his hand, is alike to our 
 defence the prisoner being unacquainted with the cause ; 
 and that she was a stranger to the cause, if contained 
 in the suspected soup, is perfectly manifest and unques- 
 tionable ; and if the cause were not contained in the 
 soup, then was the soup made and salted the chickens 
 died, and the ducks followed all to no possible purpose ; 
 and we have been entertained here for a half a day in 
 the examination of kitchen concerns, to be told in conclu- 
 sion, that they have nothing to do with the case. Had 
 she borne with her the consciousness of guilt, what was 
 to prevent her disposing of the soup in a thousand ways ? 
 throwing it into the fire, throwing it out of the win- 
 dow, emptying it herself in the sewer, where no human 
 power could have discovered it ? Nothing. Yet say the 
 
 12
 
 178 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 gentlemen, perceiving the force of this argument, "but a 
 portion of the soup that was taken into the parlor, was 
 poisoned, and afterwards carried up to Mr. Chapman ; 
 ai\d that which was brought down into the kitchen, had 
 not been drugged." This is ingenious ; but it has no 
 evidence to stand upon, and is self-destroyed. The only 
 soup thrown out, was the soup brought down. The soup 
 that was thrown out, is that to which the death of the 
 ducks has been attributed ; and if that did not contain 
 poison, how was the death of the unfortunate ducks pro- 
 duced ? They talk of challenges ! I challenge them to 
 reconcile these conflicting hypotheses. 
 
 Mr. Hellings, and several other witnesses, state, that 
 the death of large flocks of young ducks, is not unusual. 
 That fish water, lime water, and various other matters, 
 will produce that result ; and it deserves to be remem- 
 bered, that Mr. Chapman having been recently engaged 
 in building, large quantities of lime were scattered over 
 his little domain, and perhaps that circumstance may 
 reasonably account, for the timeless fate of these almost 
 unfledged trespassers. 
 
 A word or two more, ere I take leave of the ducks. I 
 am not fond of quackery, which must account to you for 
 a very brief obituary notice of these long lamented 
 ducks. On Monday morning, before the soup was 
 made, three of Mr. Boutcher's chickens foiled on their 
 backs and died. On Tuesday afternoon, a whole day 
 after the soup had been thrown into the aqueduct, the 
 unsuspecting .ducklings followed their example ; so that, 
 you perceive, the chickens died by anticipation and the 
 ducks forsooth by retrospection. They were all decently 
 buried, no doubt, with becoming ceremonies ; yet we 
 cannot but drop a passing tear of pity for their fate, 
 when we are told that their rights of sepulture have, but 
 yesterday, been barbarously invaded ; and their canonized 
 bones have burst their cerements, and been produced as 
 a sort of memento mori in this open court, for the purpose
 
 CHAPMAN CASE. 179 
 
 of corrupting the wholesome and heavenly atmosphere of 
 justice. I can wish the prosecution, however, no worse 
 fate, and they deserve no better, in requittal of this un- 
 hallowed deed, than to be daily haunted at the festive 
 and convivial board, with the awful apparition of a brace 
 of fat ducks. So shall they ever remember the history 
 of this day's error, and be taught a solemn and salutary 
 lesson of becoming reverence for the departed. 
 
 We have thus far contemplated the evidence of Ann 
 Bantom in itself, and found it altogether too weak to sus- 
 tain itself. What then shall become of it, when opposed 
 to the resistless current from other quarters, that sets 
 against, and overwhelms it ? The little Lucretia, with a 
 purity unsurpassed by the great original of that name, 
 and with a beauty and simplicity that won all eyes and 
 hearts, informs you, that the soup in question was brought 
 to her by her sister Mary, while she was attending at the 
 bed side of her sick father, and that she gave it to him ; 
 that the chicken was brought up at the same time ; that 
 he drank some of the soup, but ate heartly of the chicken ; 
 and not having had her dinner, at his request she joined 
 him in both, and afterwards carried the little that remained 
 into the kitchen, and placed it upon the table. What 
 now becomes of the statement of Ann Bantom, that Mrs. 
 C. brought down the chicken and the soup ? What now 
 becomes of the notion of the learned counsel, that the 
 portion of the soup that was given to Mr. Chapman, was 
 poisoned, and that that which was returned into the kit- 
 chen was not the same ? There can be no mistake in the 
 time it was on Monday, while the father was sick, and 
 Ann Bantom in the kitchen. There can be no mistake in 
 the circumstance it was the only soup administered. 
 There is no refuge left, therefore, to the prosecution, but 
 to ground their arms, and march off at once, without 
 flourish of trumpet or beat of drum. 
 
 I come now, in almost the last place, to an analysis of 
 Fanning. This eastern mountebank this peddling book-
 
 180 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 seller a fellow, vending bis salt-and- water physic, and 
 his milk-and-water literature through the land : one of a 
 
 o * 
 
 wandering tribe, as numerous as the locusts of Egypt, and 
 as great a curse. He arrives at Andalusia, a beggar, with 
 an empty head, an empty heart, an empty stomach, and 
 an empty subscription list ; and with the same generosity 
 as was displayed in the reception of Lino, she charitably 
 supplies all his wants. Her house is open to him, her 
 table is spread for him. His list of subscribers enlarge 
 daily, even beyond his hopes, under her fostering care ; 
 and in kind requital for all this, when by the death of her 
 husband, she was left without a protector or a friend, in a 
 strange land ; this viper, who had so long coiled in flow'ry 
 ambush, deliberately attempts stinging her joys to death. 
 He causes it to be rumored through the neighborhood, 
 that he is the sacred depository of some dark and dark- 
 ling mystery. He leaves word with Capt. Mcllroy, that 
 there were deadly doings in that house; and having left 
 his address, desires to be sent for, if anything of import- 
 ance should transpire. If he knew anything that his 
 conscience forbade him to conceal, why did he not speak 
 out like a man ? why shroud himself in the darkest 
 mystery? If he knew nothing and it appears he really 
 did know nothing why did he thus contribute to give 
 wings to wild conjecture and unjust suspicion, against one 
 who never harmed him? For the latter part of his cun- 
 ning, I could suggest a cause : Being about to depart for 
 some remote part of the United States, and always having 
 a crafty eye to business, he dexterously manoeuvres to be 
 conveniently recalled, and throw the expenses of his jour- 
 ney upon the broad shoulders of the commonwealth. 
 
 And now we have him here, was there ever a more 
 ridiculous faroe than that which he exhibits ? He opens 
 his pedler pack before this court and jury, and while 
 every man stands aghast, with the idea that like Pan- 
 dora's box, it will pour forth all kinds of evils to afflict the 
 human race, lo, and behold, it presents an empty void !
 
 CHAPMAN CASE. 181 
 
 From the moment of this disclosure, the flood of prejudice 
 Vegan to ebb; the thronged avenues to your court, were 
 literally deserted ; and the rapacious hounds that pursued 
 the defendant, even here to her last refuge with Blaney 
 at their head all lost the scent of blood, and sueakingly, 
 though reluctantly, relinquished their prey. 
 
 Little, however, as is derived from Fanning, it may not 
 be time unemployed as he is the Magnus Apollo of the 
 case to take a bird's eye sketch of his testimony. He 
 first introduces himself, by referring to that period of 
 time, when Mrs. Chapman, her son William, Mina, and 
 Mr. Ash visited the city, and remained absent about three 
 days. On the night of the second day, he says Mr. Chap- 
 man was much agitated, and displayed a great deal of pas- 
 sion, declaring that he had had no peace since Mina came 
 into his house, and swearing by the Deity that he would 
 shoot him. After all this storm of rage, however, accord- 
 ing to his account, Mr. Chapman quietly and tranquilly 
 retires to his repose, leaving the witness, as a sort of lies 
 perian Dragon, to guard his honor during the soothing 
 hours of slumber. What a mass of inconsistencies have 
 we here. A husband, publishing to a comparative 
 stranger, the story of his wife's dishonor raving this 
 moment in all the torments of the damned, and the next, 
 silently seeking the repose of his thorny pillow the conso- 
 lations of his violated bed. But the climax of this absur- 
 dity, is the appointment of Fanning to stand watch and 
 ward, and like night's sentinel, Silence, to challenge every 
 sound. This situation, however, was not active enough 
 for the curious and prying disposition of Fanning, and he 
 therefore soon followed the example of his commander, 
 and slept upon his post. 
 
 The next day, the plot thickens ; the wanderers all re- 
 turn ; the death of Mina's sister is communicated; and 
 Mr. Chapman accompanying Mina into the parlor, in- 
 stead of pronouncing him as an impostor, as he had al- 
 leged him to be to Fanning instead of blowing his brains
 
 182 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 out, as he had awfully threatened the night "before he 
 takes a seat with him on the sofa, embraces him, mingles 
 tear with tear, and as Fanning himself says, in the lan- 
 guage of scripture, " mourned with the mourner." This 
 is not all : Mr. Chapman immediately writes to Messrs. 
 Page and Watkinson, ordering them to prepare a splendid 
 suit of black for his faithful friend Don Lino, and to 
 charge it to him. Nor does he stop here? even a few 
 days before his sickness, he draws an order, in his own 
 proper hand, upon Mr. Fassitt, and requests him to pay 
 the balance of his account to his confidential as;ent Don 
 
 O 
 
 Lino. And when you connect with these circumstances, 
 the tender epistle written by the deceased to the parents 
 of this Don Lino, or Don Devil, you must inevitably ar- 
 rive at one of two conclusions, either that Chapman was 
 a madman, or Fanning a liar. 
 
 The pedler, having after the scenes above referred to, 
 absented himself for some days, again returns a day or 
 two before the close of his patron's earthly career namely, 
 on Monday morning, about nine o'clock. With his char- 
 acteristic modesty, he makes his way immediately into 
 the sick chamber, where he found the deceased, very ill, 
 and vomiting excessively; this, however, he afterwards 
 partially explains by saying, " he made violent attempts at 
 vomiting, but with little effect." The witness saw Mrs. C., 
 who requested him not to communicate the condition of 
 Mr. C.'s health to his brother's family. On the night of 
 the same day he is desired by Mr. Chapman to remain 
 with him "for," said Mr. C., "I am very sick; when 
 Don Lino is sick, all attention must be paid to him ; but 
 now I am sick, I am deserted." Before I turn to other 
 portions of the testimony, allow me to bestow a few re- 
 marks upon that to which I have thus adverted. Find- 
 ing the deceased very ill on Monday morning, is in the 
 teeth of Ann Bantom's testimony, who states he was 
 much better; you must decide between them. The re- 
 quest of Mrs. Chapman that he would conceal the state
 
 CHAPMAN CASE. 183 
 
 of her husband's health from his brother's family, unex- 
 plained, would operate against us. But we have shown 
 you that there was an unhappy fraternal feud that Mr. 
 C. had not been permitted to see his brother during that 
 brother's illness ; and that in consequence thereof he had, 
 on the very day preceding the pedler's arrival, written to 
 his pastor, and spoken to Mr. Yandegrift, to the effect of 
 excluding his brother's family from all participation in 
 his funeral rites. He knew that his widow would be 
 liable to reproach for this, and therefore it was that he 
 thus publicly exculpated her. As to the complaints 
 made by Chapman to Fanning of the attentions to Don 
 Lino and- the desertion of himself, uttered no doubt in the 
 way of bitterness ; even if Fanning speak gospel, how little 
 are they to be depended upon. We all know the fretful- 
 ness, the whims, the caprice, attendant upon disease ; we 
 know that shortly after this period, Mr. C. was in a state 
 of delirium and it would be cruel in the extreme, to 
 permit his loose and scattering remarks, which owed all 
 their prosperity to the ear of Fanning, to be visited against 
 his absent and injured wife. 
 
 It was said by the opening counsel for the prosecution, 
 no doubt anticipating the support of Fanning's evidence, 
 that Mrs. Chapman drove her husband's attendant from 
 the room in his last hours ; that she refused to send for a 
 physician ; and that she withheld from him the medicine 
 prescribed. How ungenerous and unjust is such an im- 
 putation, it will be for you to determine, after having 
 heard the evidence upon which it is built. How did she 
 drive the attendant from him? Her house being a perfect 
 hospital her cook sick Mina laboring under his fits, 
 either real or affected her husband dying she is even 
 compelled to assail the sympathies of Ann Bantom, by 
 describing her distress, in order to induce her to remain. 
 Whom did she drive from the room ? Not Bishop, for he 
 remained in attendance. If anybody, it must have been 
 Fanning; and how did she expel him? She came into
 
 18-4 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 the chamber about eleven o'clock, where finding Fanning, 
 she expressed her obligations to him, and told him she 
 would not trouble him to remain through the night ; and 
 this perfectly simple and usual occurrence, is distorted 
 into a glaring circumstance of guilt. 
 
 "I requested," says Fanning, "to be allowed to go for 
 a physician, again and again, and was refused by her." 
 What a cowardly concealment of the true state of the 
 facts do we here perceive. Dr. Phillips had been sent for 
 on Saturday, and visited Mr. C. on Sunday as the family 
 physician ; and upon the cross-examination of Mr. Fan- 
 ning, it appears that it was not Mrs. C. alone that declined 
 sending for another physician, but that it was also op- 
 posed by Mr. C., on the ground that it might ofiend Dr. 
 Phillips. 
 
 In regard to refusing, or omitting to give the deceased 
 the medicines prescribed ; Dr. Knight, who attended the 
 patient four or five times, gives you no reason to believe 
 it. I think he gave him some of the medicines himself. 
 The prescription of Dr. Phillips was rigidly pursued, and 
 wonderful to relate, forms part of the charge against us. 
 Even Fanning admits salt and water was promptly ad- 
 ministered ; and yet after all, as T have said, the argument 
 is, that when anything is given it contains concealed 
 poison ; and if nothing be given, it is an evidence of 
 barbarity. 
 
 In conclusion upon these points, I say, the whole course 
 of the defendant's deportment during those painful scenes, 
 was attentive, kind, and wife-like. Dr. Knight, it is true, 
 thought she was not as much in the room as she might 
 have been ; but Dr. Knight knew but little of the helpless 
 condition in which she was placed, and of the various 
 avocations to which she was reluctantly condemned. Dr. 
 Phillips, on the contrary, whose evidence was a model of 
 manliness and propriety, distinctly informs you that the 
 conduct of Mrs. Chapman was becoming and decorous ; 
 that as death approached, as they all required rest, he led
 
 CHAPMAN CASE. 185 
 
 her and the children out of the room ; that he retired also 
 himself, desiring to be called if any change should take 
 place ; that he was called about one o'clock, and that 
 Mrs. C. and the children surrounded the bed of the dying 
 man at the moment of dissolution. After this, all proper 
 and becoming measures were adopted for his interment ; 
 matters were managed in the usual way on such melan- 
 choly occasions ; the relatives and friends of the departed 
 were invited ; the curtaiu fell, and the last scene of this 
 sad drama forever closed. 
 
 The post mortem events, so far as they have not been, 
 already examined, remain to be briefly reviewed. Your 
 patience and my strength are nearly exhausted, and I 
 therefore hasten to the termination of our mutual toil. 
 
 The marriage with Lino, within a fortnight after her 
 husband's decease, is considered as a damning spot upon 
 the escutcheon of this case. If the doctrine be true, that 
 " none wed the second, but who kill the first," we are, 
 indeed, driven to despair ; for the second marriage is un- 
 questionable. But I deny the doctrine ; and although I 
 admit that there was nothing to justify this unholy haste, 
 there was, I allege, much to excuse it. The defendant 
 was left with a large family, with limited and precarious 
 means, and without a single friend upon whom to rely in 
 the hour of adversity and distress. Up to this period of 
 time, at least, she had every reason to believe in the re- 
 presentations of the destroyer. His story was sustained 
 by the information derived from the steward of Count 
 Survilliers ; it was further corroborated by his reception 
 at the abode and at the table of the Mexican Consul ; by 
 the grateful expressions of Miss "Romana Cuesta in behalf 
 of a distinguished though unhappy Mexican ; by the 
 munificence of the stranger as exhibited by his will ; the 
 promise to allow six thousand dollars for his instruction 
 in the English language, and the allegation of his immense 
 wealth, and that of his family. But above all, it was 
 confirmed by the confidence manifestly reposed in him by
 
 186 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 her husband; as is clearly established by irrefragable 
 documents, notwithstanding all that has been said or 
 surmised by some of the witnesses in this case. Connect- 
 ing with all these circumstances the declaration made to 
 her by Mina, that it was the dying request of his friend 
 that he would prove a protector to his widow, and a 
 father to his orphans ; his further declaration of his inten- 
 tion almost forthwith to return to Mexico ; of the impos- 
 sibility of their travelling except as husband and wife ; of 
 the customs of his own country in regard to disparity of 
 age ; of the importance of being.so united, that his father, 
 a proud Spaniard, should not be able to dissolve the 
 bonds, or deny to her the advantages of survivorship in 
 case of his death ; of the gratitude which he felt towards 
 one who had sheltered him in poverty and nursed him in 
 disease ; of his intention to bestow the place at Andalusia 
 upon those relatives who were most dear to her ; take, I 
 say, all these combined influences into consideration, and 
 then decide, if you can, that she was not infinitely more 
 sinned against than sinning. 
 
 It is perfectly true, that hearing, as you have done, all 
 these falsehoods exposed, it may excite some surprise that 
 they were not earlier detected. But we are to determine 
 upon her conduct with reference to what was actually 
 represented and believed, and not with regard to what 
 subsequently took place. It is the privilege of but one 
 Eye, as has been said, to dive into futurity, and to lay 
 open the dark recesses of the heart ; she was human, and 
 therefore fallible ; but there is a vast difference, in the 
 contemplation of this court, and of a higher court, be- 
 tween human error and human crime. 
 
 The marriage ceremony having been performed at JTew 
 York, on the 5th day of July, 1831, Mina returned to 
 Andalusia, and the defendant, in pursuance of the previ- 
 ous arrangement, proceeded to Syracuse on a visit to her 
 sister, Mrs. Green ; the object of which was to place that 
 sister in the possession of her establishment in this coun-
 
 CHAPMAN CASE. 187 
 
 try, while she and her children accompanied jier husband 
 in the projected voyage to Mexico. 
 
 Several letters were written by her during her absence, 
 which have been subjects of severe commentary on the 
 part of the prosecution ; and which are said to contain 
 nothing but an expression of the wildest and most irre- 
 gular passions. It is not very, easy to say exactly what 
 should be the character of a letter from a wife to a hus- 
 band ; it must depend very much upon circumstances 
 upon the age, constitution, temperament, and condition 
 of the parties. I have read those letters, private and 
 confidential as they were, and you will have an opportu- 
 nity of reading them ; and I take leave to say, that they 
 exhibit nothing that is incompatible with the most entire 
 purity of the heart, or with a judicious exercise of the 
 faculties of the head. They were not intended for public 
 exposure, and therefore, to us, who cannot enter precisely 
 into the feelings, of the parties, they may appear some- 
 what unreasonable and extravagant. But test them, if 
 you please, by letters which you have either written or 
 received in a similar relation, and you will at once per- 
 ceive that they are neither extraordinary nor remarkable. 
 It is the privilege of married life to speak and to write 
 unreservedly ; and your own experience will be sufficient 
 to satisfy yoil, that in this instance that privilege has not 
 been carried by the defendant, to a licentious or culpable 
 extreme. 
 
 There is one letter, however, written by the defendant 
 to Mina, while at Washington, which is said to contain 
 at least an equivocal passage, and to afford ground for 
 the belief, in the language of the opposite counsel, " that 
 all was not perfectly right." In passing to the considera- 
 tion of that clause,- we must be allowed to premise, that 
 it is not sufficient, that all was not perfectly right ; it is 
 incumbent upon the prosecution to show to your satisfac- 
 tion that all was perfectly wrong. I agree that all was 
 not perfectly right. It was not right that she should
 
 183 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 marry within a little month after her husband's decease. 
 It was not right that Mina should sell her jewels, her 
 plate, her horses, and her carriage, or that he should give 
 away the trunk and books of her deceased husband. It 
 was not right that he should take two ladies to the 
 United States Hotel, and that, remaining there with 
 them, he should pay their expenses and his own out of 
 his wife's honest earnings. It was not right that he 
 should squander her means in the journey to Baltimore, 
 under the false profession that it was for the purpose of 
 obtaining a legacy of forty-five thousand dollars, left by 
 his friend Casanova ; and it was manifestly wrong that 
 he should practise all sorts of frauds and falsehoods, upon 
 this unsuspecting woman, during his absence. I agree, 
 therefore, as I have said, that all was not right ; but I 
 deny that writing under the influences fairly attributable 
 to these manifold outrages, the clause referred to in her 
 letter, is to be considered as an evidence of her having 
 aided in the destruction of the deceased. 
 
 It is a well settled principle in criminal jurisprudence, 
 and it cannot be too strongly borne in mind, that where 
 the acts or language of men admit, equally, of opposite in- 
 terpreptations, that construction shall be adopted which is 
 most favorable to innocence. With the benefit of these 
 impressions, let us turn to the objectionable paragraph. 
 I quote it from memory, and shall willingly submit to 
 correction, if I quote it erroneously : " When I reflect, 
 Mina, I am constrained to acknowledge, I cannot believe, 
 that God will suffer either you or me, ever to be happy on 
 this side of the grave." Was not reflection upon the 
 events just referred to entirely sufficient to induce these 
 expressions, without imagining the perpetration of an 
 offence so heinous as that charged against the prisoner ? 
 She had been imprudent ; she had been imposed upon ; 
 she had been impoverished, together with her children, 
 to whom she was tenderly attached ; and if this were 
 not a state of circumstances, calculated to produce such a
 
 CHAPMAN CASE. 189 
 
 reflection, I am utterly at a loss to conceive what would 
 be. On this side of the grave, indicates worldly suffering 
 for worldly indiscretion. If she had been guilty of the 
 imputed crime, her fears would not have fallen short of 
 that punishment which awaits the wicked beyond the 
 grave. 
 
 Taking these letters all together, and carefully perus- 
 ing them, nothing can be found inconsistent with the con- 
 sciousness of innocence. , Can you suppose, if this woman 
 had committed so odious and hateful a crime as that im- 
 puted to her writing as she did, under the sanctity of a 
 seal, and to her partner in iniquity she never would have 
 allowed a single word to escape her, in which the lynx 
 eye of the prosecution could perceive a semblance of 
 guilty remorse or timidity. If we are determined to sus- 
 pect crime first, and then to distort and pervert every- 
 thing to the support of that suspicion ; no man, innocent 
 or otherwise, can escape punishment. I defy the counsel, 
 with all their learning, skill and accuracy, to write a let- 
 ter upon any subject, in which I cannot detect, being sus- 
 piciously disposed, either an intention to conceal some 
 motive that they entertain, or a disposition to convey 
 some idea that they do not. If their composition be 
 loose, it will be indefinite and equivocal, and admit of a 
 vast variety of constructions. If it be terse and precise, 
 we may plausibly infer, from that very terseness and pre- 
 cision, that they are anxious to guard themselves against 
 the disclosure of some lurking motive. 
 
 In reference to the letter written from Erie to Colonel 
 Cuesta, I have but a remark or two to make, carrying 
 with me the benefit of those observations upon the pre- 
 vious correspondence. That letter, be it remembered, 
 was written several months after her departure from 
 Andalusia. It contains this passage: "When I reflect 
 that it is possible that my dear husband died of poison, 
 and that I myself am suspected of being an accomplice, I 
 am shocked, I am paralyzed." Now, says the opposite
 
 190 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 counsel, " why should she dream of being suspected ?" I 
 answer, for the most obvious reason ; because the public 
 journals throughout the United States, to which she un- 
 doubtedly had reference, uttered nothing but the most 
 malevolent and unfounded reports of her participation in 
 this crime. She must have closed her eyes, her ears, and 
 her understanding, against every passing wind ; if she had 
 not discovered, long ere the date of that letter, the 
 weight of obloquy and suspicion that was heaped upon, 
 and crushed her. 
 
 In the same letter, she mentions, among various other 
 matters, the inferences that may be drawn from her 
 unfortunate flight; and although that subject is not now 
 presented in the exact order of time, I perhaps cannot do 
 better than briefly consider and dispose of it. 
 
 The reasons which she herself gives for abandoning the 
 protection of her household gods, and temporarily desert- 
 ing her children, for the purpose of avoiding the violence 
 of the gathering storm ; are such as to carry conviction 
 of their truth to every bosom. She was a teacher and 
 had been for years of a large and highly respectable 
 seminary ; her reputation was her stock in trade ; expo- 
 sure was but another word for death ; that she should 
 shrink from it, therefore, was natural was excusable. 
 That she contemplated but a temporary absence, is plain 
 from her conversation with Mrs. Smith ; from her com- 
 munication to Justice Barker at the time of drawing up 
 the power of attorney ; and from the situation in which 
 she permitted her family to remain. 
 
 But two matters remain, ere I surrender this cause to 
 you. The first is the state of things a few days after the 
 funeral ; and the second, the interview between Mr. Re- 
 corder Mcllvaine and the defendant. Let us take them 
 in their order. 
 
 Mrs. Smith, who is a lady in every sense of the word, 
 called at Andalusia, I think, the day after the funeral : 
 Mrs. Chapman, apologizing for the want of servants, an-
 
 CHAPMAN CASE. 191 
 
 swered the door herself. She was dressed in black, with 
 a white turban bearing a lilac border ; and this little 
 matter struck Mrs. Smith with some surprise ; I really 
 don't know why. Grief displays itself very differently 
 in different persons, and in different circumstances. It is 
 not in " customary suits of solemn black " alone, that the 
 heart exhibits its afflictions. Many of the gentlemen 
 whom I have now the honor to address for the first, and 
 perhaps for the last time, are disbelievers in external 
 mourning; and whether they are or -are not, they would 
 hardly convict a lady of murder, from the color of 
 her turban. Rely upon it, if she had been the wicked 
 thing they would make her, there would have been no 
 deficiency in what may be called dramatic effect ; her 
 error would have been in excess; like the Ephesian dame, 
 she would have swept the very earth with her widowed 
 weeds, and veiled her face in sorrow. Her dress was not 
 affected, her agonies were not eloquent ; but they were 
 not the less poignant or sincere : 
 
 " The grief that cannot speak, 
 "Whispers the o'erfraught heart, and bids it break." 
 
 There was one expression, however, of hers, which 
 breathed volumes that rather escaped from the labor- 
 ing soul than was uttered by it that was addressed to 
 no one, though in the presence of Mrs. Smith and that 
 sounded like the knell of departed hope ; departed, never 
 to return. Casting her eyes involuntarily upon tHe heav- 
 ens, she exclaimed in a stifled and subdued voice : " The 
 sun the sun looks gloomy." This simple touch of 
 nature unfolded more, much more, than all the studied 
 forms and ceremonies of woe. 
 
 Again: Mrs. Smith, though surprised at first, must 
 have been entirely reconciled to her deportment, as she at 
 that time placed her child under the care of the defend- 
 ant; and shortly after took up her own residence, and 
 that of her husband, under this very roof. I will not
 
 192 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 weaken these facts by bestowing upon them a single com- 
 ment. 
 
 On the afternoon of the 29th day of August, the re- 
 corder, accompanied by High Constable Blaney, and Mr. 
 Reeside, waited upon Mrs. Chapman, at her house. The 
 object, as it is stated, was to discover traces of Mina ; 
 with reference to his impositions, malpractices, and for- 
 geries while at Washington. Mrs. Chapman, at the time 
 of their arrival, was at church with her sister, but 
 shortly returned ; and the recorder being invited into 
 the parlor, immediately communicated the purpose of his 
 visit. He knew nothing at this time of her second mar- 
 
 o 
 
 riage, and therefore much of her conduct, which with 
 that knowledge he would have easily understood, ap- 
 peared to this intelligent gentleman to be extraordinary. 
 He spoke of Mina's character of his falsehoods, of his 
 frauds and inquired whether she herself had not been 
 plundered and despoiled by him. She hesitated, and de- 
 nied it until her letter, which had been intercepted, was 
 produced, recounting a long catalogue of injuries to 
 which she had been subjected. She even then rather 
 appeared to evade or to extenuate the evils she had suf- 
 fered. But will you here allow me to inquire what 
 course she should have pursued ? Irrevocably wedded to 
 a felon the officers of justice upon his crime-covered 
 track was she to join in the general cry was she to 
 hunt down one, to whom, bad as he was, she had 
 plighted her faith ? She gave no other information than 
 was extorted from her and I openly rejoice that she did 
 not. Fidelity is the brightest jewel that adorns the fe- 
 male character; it is the last that woman loses ; audit 
 would have been an eternal reproach to her sex it would 
 have been perdition to her, when her vile husband's fate 
 was poised before her, if the whole police of the city, with 
 all their mental racks and tortures, could have extracted 
 from her heaving bosom, a single groan to guess at. 
 Had she then betrayed Mina, infamous and abandoned
 
 CHAPMAN CASE. 193 
 
 as he was, it would have supplied to the prosecution the 
 most unanswerable argument of her previous guilt: to 
 betray or to destroy, is but the same principle, differently 
 developed. 
 
 Still not knowing the marriage, the recorder proceeded, 
 fixing his keen and inquisitorial eye upon her at the 
 same time, to inquire whether she had any reason to be- 
 lieve that Mina had contributed to the death of her hus- 
 band. She changed color her face assumed a livid hue 
 and she appeared for a moment as if she would have 
 sunk to the earth. She recovers, however, and replies: 
 " No he was his faithful friend ; I cannot think it pos- 
 sible he should do anything so diabolical !" And yet it 
 is thought this is not a becoming expression of surprise. 
 According to my experience in human nature, it at once 
 expressed surprise, doubt, affection, horror, and all the 
 violent and conflicting emotions which the question was 
 so eminently calculated to excite. But whether it did or 
 not, you do not sit here to decide upon comparative 
 strength of nerve upon the various results on various 
 individuals, of sudden and unexpected shocks upon the 
 change of the complexion or the still more variable 
 forms of passion or expression ; depending as often for 
 their character upon the mind of the observer, as upon 
 that of the observed. Mr. Phillips, in his valuable essay 
 upon the theory of presumptive proof, speaking in refer- 
 ence to the celebrated case of Captain Donnellan, in 
 which it was alleged that the defendant displayed more 
 uneasiness than was even natural to one in his situation, 
 makes these appropriate remarks : " It is a delicate thing 
 to decide this question ; it is a nice thing to fix the 
 standard of human feelings, and to say what degree of 
 perturbation an individual already branded with guilt or 
 conviction shall feel, when placed in circumstances which 
 make him to be suspected of a capital crime. Lawyers, 
 and those accustomed to see and advise with persons in 
 that unfortunate predicament, can only tell the terrible 
 
 13
 
 194 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 apprehension that every one feels at the idea of being 
 brought to a public trial ; it is altogether a new view of 
 human nature, and we seldom estimate rightly, feelings 
 which we have never experienced, nor expect to experi- 
 ence in our own persons, nor have witnessed in those of 
 
 others. 
 
 ' To thee no reason ! 
 Who good has only known, and evil has not proved.' " 
 
 i But I go further than Mr. Phillips, and utterly deny 
 even the competency of those who, from their office, are in 
 the habitual communion with guilt, to decide from the 
 expression of the face or the features, upon the impulses 
 of the heart. Nay, more than this, their very knowl- 
 edge of the worst part of mankind, with whom they 
 are so frequently brought into contact, imbues the mind 
 with jaundiced and unfavorable impressions of our na- 
 ture, and leads them to detect a felon in every face : 
 if you are bold, it is the hardihood of confirmed guilt 
 if you are fearful, it is the timidity of crime. I do not 
 mean to say that every judge of a criminal court may 
 become a Jeffries ; because, thank heaven, at this day the 
 moral influence of public opinion provides a salutary re- 
 straint ; but I do mean to say, that whatever may be the 
 theory of our rights, experience abundantly instructs 
 us, that the moment a charge is preferred against an 
 individual, he bears the stamp of Cain upon his brow ; 
 and inverting the best principle in criminal jurispru- 
 dence, he is almost uniformly considered to be guilty, 
 till his innocence shall be established ; and perhaps even 
 afterwards. In these remarks, no one can suppose that 
 I speak in reference to any individual, much less to the 
 highly respectable and amiable recorder, for whom I 
 entertain the sincerest personal and professional regard. 
 I speak to human nature and common experience, and 
 I do it the more confidently, as I acknowledge my own 
 liability to the influence I thus deprecate. 
 
 In further illustration of this doctrine, I need only
 
 \ 
 
 CHAPMAN CASE. 195 
 
 advert to the case introduced by my learned and eloquent 
 colleague, of the unfortunate Thomas Harris, as reported 
 in Phillips. In that case, though the defendant was 
 utterly innocent, the fact of his changing color, and 
 appearing confused, was relied upon as a strong, if not 
 conclusive evidence of crime; yet that very confusion 
 was produced, partly from the consciousness that the 
 fact referred to might operate against him, and partly 
 from the shame incident to a disclosure of his avarice. 
 If, therefore, different causes entirely consistent with 
 innocence of the particular charge, may create shame 
 and consternation and if sufficient independent cause 
 can be shown, as in the present instance ; how obviously 
 unjust must it be, that it should be construed into evi- 
 dence of the imputed crime. It is like the attempt 
 -made by the prosecution in respect to the symptoms 
 of the deceased ; inferring, as they have done, an exis- 
 tence of poison, from indications of disease, which were 
 altogether consistent with other, and natural causes. 
 
 As to the evidence of Blaney, but little need be said. 
 It would rather seem, from what he says, that Mrs. Chap- 
 man apprized him of the direction of Mina's journey, 
 though the recorder does not mention it, as Blaney, it 
 seems, soon after this conversation, wrote to Boston, and 
 succeeded in arresting the offender. But I protest, once 
 for all, against the testimony of such men as Blaney, 
 whether for or against us. He is a police officer, speak- 
 ing from police reports, or rather from the report of Mr. 
 McClean, who was here, and did not condescend to lend 
 his support to the commonwealth. It is the business of 
 a constable to suspect and no one can escape him ; 
 carrying, as he always does, suspicion in one eye, and a 
 search warrant in the other. 
 
 Thus, gentlemen of the jury, have I attempted show- 
 ing ; in the first place, that no poison was administered ; 
 and in the second place, that at all events, it was not 
 administered by this defendant; either of which is suf-
 
 196 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 ficient for the purposes of the present case. If the de- 
 fendant be innocent, it is not for me to show who may be 
 guilty ; that is the business of the prosecution. It can 
 impart no gratification to me wantonly to travel out of 
 the strict line of my duty, to load, or trample upon a 
 fallen fellow creature. 
 
 In conclusion, allow me to observe, that to those who 
 have been engaged in this discussion, and to those who 
 shall be engaged in the determination of the present 
 question, this matter of life or death may be a subject 
 of utter indifference and contempt, as it is contemplated 
 in relation to others. Clothed in our own imaginary 
 infallibility, what sympathy can be expected from us, 
 by that isolated, hapless being, upon whom your irre- 
 vocable decree is about to be pronounced. Sympathy is 
 ever the offspring of a common liability to evil, or suscep- 
 tibility of good ; and what penalty do you fear, or what 
 privilege do you enjoy, in common with an individual 
 who is presented before you, suspected and accused of 
 the most horrible of crimes. The very circumstance of 
 her being placed at that bar, is calculated to provoke 
 involuntary prejudice ; and however we may be taught 
 that both justice and mercy should incline us to the be- 
 lief of innocence while passing upon the fate of a human 
 being; experience, as I have already intimated, frequently 
 establishes a widely different practice. 
 
 The law tells us nature tells us and humanity abun- 
 dantly instructs us, that whenever a prisoner stands 
 charged with an offence, and such an offence ; instead of 
 substituting the busy rumor, the misty moonshine of 
 malice or prejudice, for the meridian light and fulness of 
 truth ; we should patiently await the disclosure of facts 
 which the evidence itself, and the evidence only, can 
 legitimately disclose; thereby placing our verdict upon a 
 substantial foundation, which, hereafter, in the hour of 
 deliberate and calm reflection, may remain firm and un- 
 shaken. Pause, now while the opportunity is afforded
 
 CHAPMAN CASE. 107 
 
 now, ere it be too late now, while reflection comes with 
 healing on its wing. Hereafter, years and floods of peni- 
 tence and remorse can never obliterate or wash away the 
 consequences of an error, which seals forever, and irre- 
 trievably, the defendant's melancholy doom. Consid- 
 erations of this kind all plead, "like angels, trumpet 
 tongued," in her behalf, and might almost " persuade Jus- 
 tice to break her sword." 
 
 The charge in the indictment is most horrible and 
 atrocious, it is true : a husband's murder ! The strength 
 of the testimony, should be proportionate to its enormity. 
 It can never diminish the horror of the charge, that the 
 innocent should suffer. The defendant, nevertheless, bows 
 submissively to your pleasure : if such be your terrible 
 decree, let the axe fall ; consign her to an ignominious 
 grave, and her children to pitiless orphanage. Return 
 then to your own domestic circle^ to your own firesides ; 
 and, surrounded by your partners and your offspring, re- 
 call and relate the lamentable occurrences of this day's 
 trial ; tell them that the popular clamor was too loud 
 and too general to be escaped the popular prejudice too 
 powerful to be resisted ; tell them, that under those influ- 
 ences you have consigned a mother to a timeless grave, 
 and her children to endless ruin ; and thereby give them 
 to understand, how frail and feeble is the tenure of 
 human happiness human character and human life. 
 
 I have now done, gentlemen of the jury, and the 
 future destinies of the prisoner are committed to your 
 charge. For herself, conscious as she is, of her own inno- 
 cence, and advanced as she is in life, she feels compara- 
 tively but little. But you will pardon a sister's and a 
 daughter's and, above all, a mother's emotions, while 
 confronting that awful tribunal, upon whose stern sen- 
 tence must depend not only her own prospects, so far as 
 they remain to her not only her own existence but, as 
 I have said, the hopes and very existence of those to her 
 more precious far than life. To your hands, however, we
 
 198 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 confidently resign her. You are the ministers of the 
 law the standard-bearers of justice and she feels as- 
 sured you will sustain the balance with a firm and 
 unwavering hand let which scale may preponderate. 
 
 My duty is at last discharged feebly and imperfectly, 
 I acknowledge; but as fully as my health and limited 
 abilities will allow. It remains for you to fulfil yours. 
 In doing so, let not, I again beseech you, the client suffer 
 for the faults and deficiencies of her counsel ; but gen- 
 erously incline your ear to the pleadings of your hearts, 
 and ever bear in dear and sacred remembrance that 
 " mercy is twice blessed it blesses them that give, and 
 them that take."
 
 DR. FROSTS CASE. 
 
 THE PEOPLE OP THE STATE OF NEW YORK v. 'RICHARD 
 
 K. FROST. 
 
 In the Court of Sessions for the City and County of New 
 York, held December 13th, 1837. 
 
 CHARGE MANSLAUGHTER. 
 
 Present, Recorder RIKER, and Alderrneii ACKER and 
 TAYLOR. 
 
 Counsel for the Prosecution. 
 Mr. PHENIX, District Attorney, and Mr. GRIFFIN. 
 
 For the Accused. 
 
 JOHN A. MERRILL, ESQ., of New York; DAVID PAUL 
 BROWN, of Philadelphia. 
 
 INTRODUCTION. 
 
 This case, which occupied ten days in the trial, excited 
 great interest, not so much from its intrinsic importance, 
 as through the intense feeling and bitter animosities which 
 it engendered between rival schools of medicine, viz. : be- 
 tween the Medical Faculty and the Thomsonians. 
 
 Each system had its advocates and organs, and the 
 battle between them raged even more fiercely in the 
 journals of the day both medical and miscellaneous 
 than in the court room. 
 
 The facts were simply these: Tiberius G. French a 
 young man of promise being slightly indisposed placed 
 himself under the care of Dr. Frost, who was at the head 
 
 (199)
 
 200 FORENSIC SPEECHES OP DAVID PAUL BROWN. 
 
 of the Thomson Infirmary in New York City. After 
 being subjected to the Thomsonian treatment for five 
 days, a " regular" physician was called in, at the suggestion 
 of a brother of the deceased ; but despite every effort, 
 the young man died on the night of the fifth day after 
 his entrance into the infirmary. 
 
 It was alleged by the prosecution that the accused had 
 no medical education, and was ignorant of the nature and 
 operation of remedial agents, that he had administered 
 deleterious herbs, and poisonous decoctions made of lo- 
 belia, &c. 
 
 The defence, on the other hand, advocated the treat- 
 ment according to Thomsonism ; denied the use of de- 
 leterious drugs ; and very strongly intimated that the 
 introduction of the "regular" physician (Dr. Cheeseman) 
 was the immediate cause of the death. 
 
 The trial resulted in a verdict of " Guilty of man- 
 slaughter in the fourth degree." 
 
 Motions in arrest of judgment, and for a new trial, were 
 made, and the accused was allowed to go at liberty until 
 these rules were disposed of.
 
 DOCTOR FROST'S CASE. 201. 
 
 SPEECH IN 
 DOOTOE FKOST'S CASE. 
 
 WITH DEFERENCE TO THE COURT: 
 
 After a long and perilous voyage, gentlemen of the 
 jury, we have at length steered our little barque into a 
 safe harbor, where we may venture to cast anchor 
 where, with your favor, we may ride securely laugh at 
 the billows and defy the storm. If, may it please your 
 honors, my learned colleague has felt himself called upon 
 to express his gratitude to the court, for favors conferred 
 upon him ; what must be my obligations, for the kindness, 
 the courtesy, the unmerited distinctions, bestowed so 
 freely, upon a comparative stranger, in my person ? My 
 acknowledgment shall consist, not in vain thanks, but in 
 acceptance bounteous in other words. I shall endeavor to 
 discharge the debt by facilitating the labors of the court, 
 and requiting benefits by desert. 
 
 In approaching the consideration of this cause, I must 
 be allowed to congratulate my brethren of the bar, here 
 and elsewhere, upon the certainty that their professional 
 engagements and emoluments shall never cease, so long as 
 medical science and its professors shall continue to flourish 
 may they, therefore (I say it with all my heart), be 
 immortal. From the time of Hippocrates down to this 
 moment, the feuds and bickerings, the private quarrels, 
 and open hostilities among the medical family, have been 
 such as to form a proverb a by-word and reproach. If 
 such be their intestine dissensions and divisions ; you may
 
 202 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 readily imagine how deadly and destructive must the 
 conflict be, when the whole of this irritable race, in their 
 aggregate of fury, come into direct collision with an 
 opposing system. How terrible the concussion ! how ap- 
 palling the result ! 
 
 Some opinion may be formed of the relentless nature 
 of this strife, from the daily display of vindictiveness to 
 which you have been the unwilling witnesses. " The trial 
 by wager of battle," now grown obsolete even in England, 
 where it so long prevailed, however brutal in its char- 
 acter, was less offensive to the eye of justice, than the 
 course here adopted by these " potent, grave and reverend 
 seignors." Their business, rightly understood, is to cure, 
 and not to kill ; but they have inverted, by practice, the 
 philosophy of their science, and here magnanimously 
 unite (almost the only union they have ever been guilty 
 of) for the philanthropic and generous purpose of offering 
 up an unoffending victim upon the altar of vengeance. 
 "We are informed upon classic authority, which the ripe 
 and ready memory of the court will at once recognize I 
 think the account is contained in Herodotus, though it 
 has also found its way into other authors that a won- 
 derful artist, of Greece, constructed a brazen bull, of 
 such curious and exquisite workmanship as to astonish 
 every beholder. This bull he presented to Phalaris, his 
 sovereign, assuring him at the same time, that if heated, 
 and a human being placed within it, the dying groans of 
 the victim would resemble the roaring of a bull, and thus 
 render the illusion complete. " It is well," said the mon- 
 arch, even more shocked at his cruelty than delighted 
 with his skill, " it is well the bull shall be heated, and 
 you yourself shall be placed inside of it, for it is most fit 
 that the artificers of death should die." Shall I point the 
 story can you not make the application ? This prosecu- 
 tion is the brazen bull the medical faculty are the inven- 
 tors you, gentlemen of the jury, are the sovereign the 
 defendant is the intended victim, and I boldly ask you to
 
 DOCTOR FROST'S CASE. 203 
 
 imitate the example of royal justice to which I have re- 
 ferred to protect the innocent, and doom the artificers 
 of death to death. 
 
 Why should they thus attempt hunting down a fellow 
 citizen struggling in self defence, in a tribunal of justice ? 
 Why should the defendant's rights be entirely disre- 
 garded, and the adherents of these opposing systems be 
 permitted to " hack each others' daggers in his breast ?" 
 Does such a course, to say nothing of justice or charity, 
 redound to the credit of the medical faculty? Does it 
 improve our estimation of their learning or their talents ? 
 " Dwells there such rage in heavenly minds ?" Persecution 
 ever defeats its object the bruised and broken flower is 
 more redolent than when flourishing on its parent stem ; 
 and the virtues of the Aloe tree are rendered more appar- 
 ent by the perfume which it imparts even to the axe that 
 fells it. The glorious temple of Christianity is founded in 
 persecution ; and its fabric is cemented and sustained by 
 the blood of martyrs, and of the Prince of Martyrs, the 
 Redeemer of the world. Still how natural does it seem 
 to oppress the humble, to trample upon the fallen how 
 tempting to the foot of arrogance and ambition is every- 
 thing that may form a ladder to their lofty hopes. 
 
 The struggle in which the medical faculty is here en- 
 gaged is not regulated by sympathies, or charity, or 
 humanity it is a struggle for self they are determined 
 to bear no rival near their throne whole hecatombs shall 
 perish that they may prosper ; and when they have once 
 succeeded in obtaining a sort of sovereign sway in the 
 land, "Wo unto all who shall oppose resistance to their 
 overweening strength. 
 
 Having thus adverted to what must have forced itself 
 upon the attention of the most casual observer; and 
 which, in the temple of justice, should not be allowed to 
 pass without remark and unqualified reprobation ; we 
 come now to the consideration of these points in this 
 cause, which, although much more pertinent to the issue,
 
 204 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 will, I fear, exert a less vital influence, upon its decision, 
 than those subjects which I have thus briefly adverted to, 
 and unhesitatingly condemned. Let it be established 
 I say it once for all that a body of physicians are the 
 only individuals authorized to prescribe to cure or to kill 
 and you create a despotism, the pernicious results of 
 which exceed all imagination. They shall make their 
 own terms with you the rich and the poor shall be alike 
 subjects to their sway ; and the instance which the testi- 
 mony has exhibited of a physician who exacted from a 
 patient racked with disease and pain and balancing as 
 it were upon the pivot of destiny a fee of five dollars as 
 an inducement to a visit, will not be a solitary or a start- 
 ling instance, but be rendered familiar from its frequency, 
 and almost laudable from its moderation. 
 
 Without further prelude, let us inquire what is the in- 
 dictment. It contains three counts. The first, charging 
 the defendant with having produced the death of the 
 deceased, wilfully, maliciously and feloniously, by admin- 
 istering a certain drug or herb, called lobelia ; and by 
 also administering cayenne pepper, and applying the 
 steam bath. 
 
 The second count, charges the defendant with produc- 
 ing death by the medicines. 
 
 The third count, charges him with causing death by 
 the bath, and some of the medicines comprised in the prior 
 counts. 
 
 The law of New York, under which this indictment is 
 framed, provides for four degrees of manslaughter; and 
 to which particular degree this prosecution is directed, it 
 is our business to ascertain, and no information has been 
 given. 
 
 Such, then, is the indictment the chart by which we 
 have steered. It charges the defendant, you perceive, 
 with felonious homicide ; and it is founded upon statu- 
 tory provisions, upon the subject of manslaughter, con- 
 tained in the revised code of the laws of New York. For
 
 DOCTOR FROST'S CASE. 205 
 
 what earthly purpose those provisions were framed, I 
 confess my inability to perceive: at common law, all the 
 offences embraced by them are clearly prohibited and 
 punished ; and that which was plain before, is rendered 
 somewhat doubtful and mysterious, by this legislative 
 effort to improve it. Philosophy, however, teaches us 
 not to increase evils by unavailing regret, but rather to 
 'overcome by boldly confronting them: I, therefore, ad- 
 dress myself to my task. 
 
 The district attorney unwilling to rely upon any one 
 degree of manslaughter has converted this act, embrac- 
 ing four degrees, into a sort of sweep-net ; in some one of 
 the meshes of which he expects to ensnare, or entangle, 
 and secure the defendant. I have called upon him, as I 
 had the right to do, to state his specific charge, in order 
 that time might not be unprofitably employed in attack- 
 ing where there is no resistance, or resisting where there 
 is no attack. This he has declined, as he had no right 
 to do, and thereby subjected me to the necessity of trav- 
 elling through the four orders of manslaughter, for the 
 purpose of showing the defendant's entire innocence of 
 all ; or rather, to speak more technically and critically, 
 for the purpose of showing that he has not been proved 
 guilty of any. (Mr. Phenix here rose, and said that he 
 should rely upon the nineteenth section of the law, and 
 maintain that the defendant had been guilty of man- 
 slaughter in the fourth degree.) 
 
 The iourth degree of manslaughter is embraced in the 
 general clause ; it is all that the defendant can be guilty 
 of, and I deny that he is guilty of that. This, therefore, 
 forms the only legitimate issue between the common- 
 wealth and myself. 
 
 We set out on the part of the defendant by averring 
 that no act of mankind can be criminally punishable, 
 without being accompanied, either actively or construc- 
 tively, by a corrupt motive. In other words, that the 
 heart is alone the abode of crime ; that the act and the
 
 206 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 motive must cohere ; and that in no case is the act alone 
 punishable : and there is but one class of cases in which 
 the motive or agreement to do an unlawful act, or to do 
 a lawful act in an unlawful manner, is subject to the 
 criminal penalties of the law, and that is the class to 
 which conspiracies belong. The law there interposes, as 
 it were, by anticipation, to forestall the offender ere yet 
 he come to fall. To crop crime in its germ or in its very 
 bud, and thereby to prevent its growing into a luxuriant 
 and pernicious harvest, and finally spreading ruin and 
 disaster around. This is the doctrine in regard to illegal 
 combinations but as respects individuals, the maxim is 
 u l^"on est crimen voluntas sine perpetratione." 
 
 In saying that there must be an actual or constructive 
 corruption of design, we may be inferred to mean, that 
 where there is a culpable negligence, or a gross want of 
 skill, in a case like the present, the law may imply an 
 evil design, and thereby render it criminal. If, therefore, 
 in the present case it should appear that the ingredients 
 as charged in the indictments were not administered ; or 
 if administered that they did not produce death; or if 
 they did produce death, that there was no criminal ne- 
 glect or culpable ignorance : the prosecution rests with- 
 out its pillow, and the defendant must be acquitted. 
 
 This is certainly presenting the question in the most 
 favorable shape for the commonwealth. 
 
 The defendant hereby assumes upon the evidence 
 to negative, or disprove the charge : whereas he has the 
 right to call upon the district attorney to establish 
 clearly and beyond the reach of a reasonable doubt the 
 allegation of guilt ; and without this the case can neither 
 be embraced by the statute, nor the common law. 
 
 In 1 Hale's Pleas of the Crown, 429. this doctrine will 
 be found no higher authority can be required " If a 
 physician give a poison without intent of doing any 
 bodily hurt, but with intent to cure or prevent disease, 
 and contrary to the expectation of the physician, it kills
 
 DOCTOR FROST'S CASE. 207 
 
 him, this is no homicide and the like of a surgeon and 
 I hold their opinions to be erroneous that think, if he be 
 no licensed surgeon or physician that occasions this mis- 
 chance then it is felony ; for physic and salves were be- 
 fore licensed physicians and surgeons, and therefore, if 
 they be not licensed according to the statute, they are 
 subject to the penalties of the statute, but God forbid, 
 that any mischance of that kind should make any person 
 not licensed, guilty of murder or manslaughter." Sir 
 "Wm. Blackstone concurs in the doctrine and in But- 
 chell's Case, 2 C. & P. 632, it was ruled, that it made no 
 difference whether the party was a regular or irregular 
 physician ; Baron Hallock adding, that in remote parts 
 of the country many persons could be left to die if irregu- 
 lar surgeons were not allowed to practice and in Long's 
 Case, 4 C. & P. 398, Parke, J., observed, " that whether 
 the party was licensed or unlicensed, is of no consequence, 
 except in regard to his liability to pecuniary penalties for 
 acting contrary to acts of Parliament." 
 
 It is not my intention here to discuss the merits of the 
 indictment they are subjects of law, and belong to the 
 court. For although it is perfectly true as the court has 
 taken occasion to tell you, that you are the judges both 
 of law and fact ; it never yet has been necessary for me, 
 in the course of my humble practice, to enjoin upon the 
 jury the propriety of disregarding the opinion of an en- 
 lightened judicial tribunal and I trust it never will be. 
 I have no greater fears of the court than I have of the 
 jury, upon this or any other subject when rightly under- 
 stood ; and I trust therefore you will listen with all 
 proper attention to the learning and wisdom which may 
 fall from the bench yielding to it not a servile, but a 
 rational and conscientious obedience ; not surrendering 
 the exercise of your own mental faculties, but allowing 
 them to be enlightened, invigorated and enlarged by the 
 genial influence of superior science and experience. 
 
 The court and the jury appear to the greatest ad van-
 
 208 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 tage, and best discharge their respective duty, while 
 mutually borrowing and imparting aid to each other 
 and it is thus, and thus only, that the advantages of 
 criminal jurisprudence can be fully enjoyed or preserved. 
 
 Let us concede for the sake of the argument, that the 
 ingredients as specified in the indictment were adminis- 
 tered by the defendant to the deceased in the manner and 
 form as charged. The proof scarcely warrants the con- 
 cession ; but I wish to avoid all higgling and chaffering 
 about trifles, and to come at once to the attractive metal 
 of this case. The only two inquiries then will be 
 
 First. Did the medicines thus administered produce 
 death ? 
 
 We have no wish to charge others with that offence, of 
 which we deny our guilt. But if regular phj^sicians are 
 not to be considered the only class privileged to kill, it 
 really would appear that Dr. Cheeseman one of the wit- 
 nesses, most earnest and eager in this prosecution can 
 hardly escape censure. I know that when the patient 
 dies, the doctor is generally in the wrong ; as when a 
 cause is lost, its loss is often attributed to the lawyer ; 
 but making all allowance for this want of generosity or 
 charity on the part of those who are writhing under the 
 affliction of a painful bereavement or remediless injury, 
 there is still much to condemn, even with an impartial ob- 
 server, in the deportment of Dr. Cheeseman, as unques- 
 tionably established by the evidence. He is certainly en- 
 titled to no favorable consideration from us ; as his mind 
 peems to be imbued and embittered with the most extra- 
 ordinary prejudice from the first to the last against the 
 individual now upon his trial a man who had never 
 done him any wrong ; who cheerfully relinquished the 
 patient into his hands and who prudently communicated 
 or caused to be communicated to him the course of treat- 
 ment previously resorted to. In requital for all which, 
 without any personal knowledge of the defendant, the 
 doctor expresses the opinion that he has fallen into
 
 DOCTOR FROST'S CASE. 209 
 
 dangerous hands ; and leaves the patient to die while he 
 runs after a consulting physician to serve him (Dr. 
 Cheeseman) in the amiable capacity of a witness, rather 
 than an adviser. What cause had he for suspicion un- 
 conscious of wrong, what should alarm him 
 
 Why should the innocent 
 
 Tremble and quake with fear, the guilty fear, 
 For cowardice and guilt appall each other, 
 But virtue ever wears a lion's heart 
 Beneath the downy plumage of the dove. 
 
 Dr. Cheeseman is, I understand, a physician of some 
 eminence he is a man of unquestionable respectability 
 but the current of prejudice has with him overcome all 
 the kindlier feelings of his nature ; and induced him in 
 this case, in which a young man is engaged in a holy 
 struggle, not for life, it is true, but for liberty and reputa- 
 tion without which life is nothing to volunteer as un- 
 generous and pernicious a sentiment, as ever tainted the 
 atmosphere of justice from the lips of a witness. I re- 
 gret to speak harshly of this gentleman. I regret more 
 that he should deserve it ; but I trust I shall ever ad- 
 vance fearlessly against any opponent, where duty points 
 and leads the way. It has fallen to my lot, in the course 
 of my professional career, to examine many distinguished 
 physicians, and to be present at the examination of more ; 
 and, although there may have been some exceptions, I am 
 proud and happy to say, that their testimony has gener- 
 ally been characterized by a tenderness and humanity 
 towards the accused, which would naturally be inspired 
 by a science, which necessarily and daily, enlists all the 
 sympathies and charities of the human heart. 
 
 Dr. Cheeseraan, called in, as he says, while the patient 
 was in "articulo mortis" never having seen him before, 
 without making inquiries into his complaint or his treat- 
 ment, ventures unhesitatingly to say, that the disease of 
 which he died was not typhus fever, although he cannot 
 
 14
 
 210 FORENSIC SPEECHES OF DAVID PAUL BROWN 7 . 
 
 tell what it was ; and pretty plainly implies, that the 
 medicines administered by the defendant caused the 
 death of the patient. How ungenerous! how unjust! 
 The patient dies under the assiduous efforts of the de- 
 fendant to restore him ; gentlemen adopting an opposite 
 system are employed ; they reject everything that is 
 incompatible with what is called regular practice; and 
 the enemy, becoming the judge, Dr. Frost is to be con- 
 demned. Why, upon this principle, the good Samaritan 
 himself might have been indicted, had the wounded trav- 
 eller died upon his hands. How would Dr. Cheeseman, 
 or any other of this learned faculty, be content to abide 
 by such a test. In the most successful practice some 
 will be lost. The doctor's " prescription" cannot with- 
 stand ihejiat of fate. The disease may be mistaken; the 
 remedies of course misapplied ; the calculations of the 
 physician defeated by latent and adverse causes ; the con- 
 stitution misunderstood a thousand accidents or contin- 
 gencies may operate to resist the most consummate skill. 
 What then ! is a medical gentleman, entertaining oppo- 
 site, or different views of practice, to pronounce condem- 
 nation upon the course thus adopted. Some physicians 
 resort to bleeding in almost all cases others, in scarcely 
 any : some administer calomel freely others, not at all : 
 some refuse cold drinks to a patient under the parching 
 influence of a fever- others, stuff, and surround him 
 with ice : some in cases of cholera, particularly, intro- 
 duce foreign substances into the veins others, hold it 
 to be certain death: some adopt cathartics others 
 emetics. Each, in short, has his favorite mode of ex- 
 pelling disease, and each, to a certain extent, at, least, 
 condemns the other. Is it then fair, is it honorable, 
 that the temple of justice should be converted into a 
 bloody arena ; and that the dignified professors of an 
 illustrious science should here publicly engage, in osten- 
 sible support of their several theories, but actually to 
 the destruction of them all?
 
 DOCTOR FROST'S CASE. 211 
 
 But to return to the inquiry. Did the intended remedy 
 produce or cause death ? 
 
 Before we examine the treatment, let us turn our 
 attention to the state and circumstances of the deceased 
 for a few days prior to his entering the infirmary of the 
 defendant. On the evening of Monday, preceding the 
 Thursday on which he applied to Dr. Frost for it was 
 his own voluntary application Tiberius G. French was 
 engaged at a convivial party where he indiscreetly, I 
 do not say improperly, indulged himself. Next morn- 
 ing while at breakfast with Mr. Whiting, he complained 
 of serious indisposition and spoke of his imprudence the 
 night before. His disease still continued, and on Thurs- 
 day morning had very considerably increased. The cause 
 of its exacerbation, as was stated by himself to Mr. 
 Whiting, was his having been employed on Wednes- 
 day night till midnight in drawing a will for a dying 
 man, in a cold chamber; which had affected him so much 
 that in his own words "he was only able to write a 
 few lines at a time." On Thursday afternoon he resolved 
 to go to the infirmary the disease no doubt having 
 taken a deep root in his system : for when he left Mr. 
 Whiting's he was almost unable to walk, and appeared, 
 as the witness said, to " drag himself along." He seemed 
 to have inherited a preference for the Thomsonian sys- 
 tem, as his mother it appears in her lifetime entertained 
 very favorable impressions of it. He consulted his brother 
 left his brother's office and on the evening of Thurs- 
 day we find him at the infirmary. In what condition 
 is he there ? In the presence of the sister of the defend- 
 ant, he draws nearer and nearer to a large coal fire ; 
 and finally to express the severity of the chill under 
 which he labors, he tells her, that it appeared as though 
 if he were to lay himself upon the coals they would 
 scarcely heat him. This is the individual who -was said 
 to be the picture of health. At that time, at least, it 
 was a melancholy picture. The icy fingers of disease,
 
 212 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 if not of death, were already grappling with his vital 
 energies. 
 
 I have said that it was his own voluntary choice to 
 place himself at this infirmary that no inducements 
 were held out and no persuasion resorted to: and I 
 turther maintain it was a most judicious choice. He left 
 his boarding house, where he could have had but scanty 
 attendance ; with an occasional visit from a physician 
 of five or ten minutes in a day ; with no nursing, or per- 
 haps what is worse, bad nursing ; and he places himself in 
 an establishment where he is the very focus of attention, 
 and has nurses around him of whom an emperor might 
 be proud : the mother of Mr. Frost, Mrs. Rae, Mr. 
 Roleston, and last and most important, Miss Frost 
 herself. 
 
 " Oh ! Woman, in our hours of ease, 
 Uncertain, coy, and hard to please, 
 And variable as the shade 
 By the light quivering aspen made ; 
 When pain and anguish wring the brow, 
 A ministering angel thou." 
 
 This is the lady to whom Ulysses French expressed 
 such unbounded gratitude, and whom he has attempted 
 so abundantly to requite by the conviction of her brother. 
 This is what I suppose they call paying a debt in kind 
 she watches night after night in sleepless anxiety on the 
 pillow of anguish and subsequent death and to repay 
 these attentions, Ulysses D. French watches day after 
 day, with equal vigilance, to convict the defendant of 
 gross ignorance or culpable neglect. 
 
 I entertain the kindest feelings towards the witness, 
 Mr. French; his deportment towards his brother was 
 every thing it should have been. I speak its true charac- 
 ter when I say it was fraternal ; it is at the same time a 
 consolation and an honor to him, and he may rejoice in 
 its remembrance, when the vanities of this world shall
 
 DOCTOR FROST'S CASE. 213 
 
 have passed away. Still, it is a subject of unfeigned re- 
 gret though certainly not without its excuse that he 
 should so far have permitted the storm of feeling, or of 
 passion, or of prejudice, to sway or swerve his mind from 
 its true moorings, as to compel him, apparently at least, 
 to unite with this prosecution, and to join in that hue 
 and cry which has for its object the destruction of the 
 defendant. 
 
 I have shown you the condition in which the deceased 
 came into the infirmary ; and suggested the reasons by 
 which he was probably influenced. It has been said from 
 the symptoms described, that Doctor Frost was^ doubtful 
 whether he labored under an idiopathic, or symptomatic 
 fever ; in simple words, whether the fever was of that 
 character which precedes small pox, or was typhus 
 fever ; he, however, settled down upon the opinion that 
 it was typhus, that " ungenteel disease," which, as Doc- 
 tor Manly says, never assails the aristocracy but riots 
 alone among poverty and rags. The learned professor, 
 therefore, I suppose, infers, that as Mr. French was a gen- 
 tleman, Dr. F. must have been mistaken. It is true Dr. 
 M. never saw the patient in his life, and therefore, merely 
 relies upon a sort of sweeping theory ; and even in that 
 theory, I will show you, runs a-foul of some of his pro- 
 fessional brethren. Dr. Smith, of Rochester, who ap- 
 pears not to know that there is more than one class of 
 typhus fever according to modern science, and who 
 would seem to consider it rather a genteel and gentle dis- 
 ease says that in its ordinary course, it would not kill 
 under one month, and in .many cases not under three 
 months. And when I asked him to explain how it hap- 
 pened that in the year 1812, the typhus fever devastated 
 the United States from Maine to Georgia, and almost in- 
 variably terminated life in less than a week ; he chival- 
 rously got rid of the difficulty by declaring the disease 
 then so called, was not typhus fever ; thereby routing 
 the whole phalanx of regular physicians.
 
 214 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 Dr. Manly does not exactly concur in this particu- 
 larly in regard to the grades or classes of typhuB. He 
 acknowledges the typhus mitior, and the typhus 
 gravior under which head he ranks what he calls the 
 congestive typhus ; and the latter or severer disease, 
 according to his experience, might kill a man in from 
 three days to a week. The disease of which Tiberius G-. 
 French, died, was exactly what Dr. Manly calls conges- 
 tive typus Dr. Rogers, who conducted the post mortem 
 examination, establishes this almost beyond question. 
 When, after four days, he raised the body not as that 
 of Lazarus was raised, to reanimate it but to furnish 
 evidence against the living, he says : " I found that the 
 internal parts exhibited great vascularity the right lung 
 was ruptured a quantity of serous fluid was effused 
 through that lung, and the appearance of the external 
 coats of the stomach was more vascular than ordinary," 
 &c., &c. all evidence of congestion. The ingenious mode 
 of reasoning, by which the medical faculty support this 
 charge is, first, to deny that it is typhus fever at all, 
 without being able to say what was the technical charac- 
 ter of the fever having never, let it be remembered, 
 seen the patient until the disease and the victim were 
 both spent, and, in the second place, they attempt show- 
 ing that typhus fever would require from one to three 
 months to destroy life. What is the corollary of such 
 reasoning ? certainly not that the patient necessarily died 
 of the treatment ; but that the disease, whether typhus 
 or not, was of a graver order than the common typhus ; 
 and therefore probably embraced by the class of cases re- 
 ferred to by the venerable Dr. Gilbert Smith and Dr. 
 Manly as speedily terminating life. 
 
 If these views be sound, everything is left in doubt as 
 to the cause of death. There is not a physician out of 
 the many examined already always excepting the per- 
 spicacious Dr. Cheeseman who pretends to the ability to 
 determine upon the specific character of the disease, from
 
 DOCTOR FROST'S CASE. 215 
 
 only seeing a patient in the last hour of his life much 
 less, four days after death. Dr. Joseph Smith, the con- 
 sulting physician (who, as a witness, was a model of 
 manliness and propriety), repudiates and rejects the idea 
 altogether, except in certain cases where the fever is 
 merely symptomatic ; as in cases of small pox, measles, 
 &c. ; and where the exact character of the disease is 
 rendered manifest by cutaneous eruptions, and by other 
 unequivocal signs. 
 
 To strengthen the suggestion, that not the disease but 
 the treatment produced the death, two other witnesses 
 were called Dr. Rogers, a distinguished surgeon, and 
 Mr. Chilton, a chemist who is also dignified by the title 
 of Doctor. Indeed, it is worthy of remark, in passing, 
 that while these learned pundits are so frugal in dispens- 
 ing medical honors even in name to the Thomsonians ; 
 there is scarcely a private in their battalion that you 
 would not take for a " field-marshal " at least. Titles are 
 squandered with the most lavish and unsparing hand. 
 Every dentist among them every chemist every bleeder 
 is a doctor ; and those only who are among the obscure 
 and the missing, are their patients. For those, gentlemen 
 of the jury, we have looked, and looked in vain. How, 
 and why is this ? On one side we have given you the 
 ocular proof of the beneficial results attendant upon our 
 practice. "We have examined scores of living witnesses, 
 all of whom have been reclaimed from the jaws of the 
 tomb some, after an express abandonment by the regu- 
 lar physician by the botanical system. We have given 
 them practice, they have answered by theory. We have 
 produced our patients where are theirs ? Am I not 
 authorized to conclude that they are beyond the reach 
 of a subpo3na ; and, that before they can be produced, the 
 doctors must condescend to dig aye, to DIG for them ? 
 
 Well, still let us hear the doctors: Dr. Rogers, as I 
 have said, conducted the post mortem examination. He 
 removed the stomach and part of the intestines, with the
 
 216 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 liquid they contained ; which he subsequently confided to 
 the analysis of Dr. Chilton. This learned and scientific 
 gentleman, so far as it appears in testimony, never exam- 
 ined the brain, or the heart ; those two great seats and 
 citadels of life. His search is directed only to lobelia ; 
 and accordingly the stomach is his spoil. Well, sir, what 
 did it contain ? The answer is, " I handed it over to 
 Dr. Chilton, and he detected lobelia " Heaven save the 
 mark! But let us turn to Dr. Chilton, and look to his 
 account: What did you do, sir? "I applied tests to 
 the contents of the stomach, after having first evaporated 
 the liquid to dryness." Well, sir, what did you find? 
 " I found about seventy-five grains of vegetable matter ; 
 arid, I think, but am not prepared to swear, there was 
 lobelia among it." What test did you apply? "I tasted 
 it, and I thought it tasted like tobacco." Mirabile dictu! 
 Such is the evidence upon which this prosecution is to 
 be sustained. 
 
 It is perfectly well settled, that of all earthly tests the 
 vegetable tests are the most imperfect ; and that of all 
 vegetable tests, that through taste is the most illusory and 
 fallacious. Supposing the chemist to speak sooth in this, 
 why, the extract from a quid of tobacco ; or the mere 
 decoction of a pinch of snuff; or the saliva from a segar, 
 would settle the fate of a physician, if found in the stom- 
 ach of his patient. 
 
 But we are told by these learned Thebans and that 
 too with a sneer that we pursue a system laid down by 
 one Sam Thomson, who sprung from an obscure corner 
 of the State of Massachusetts, and whose father was a 
 farmer. Why, gentlemen, who was it that shed the 
 brightest lustre upon the vast science of astronomy ? 
 one Dave Rittenhouse, a native of Pennsylvania, who 
 followed the plough. Who was it that tore the light- 
 ning from heaven, and the sceptre from tyrants? one 
 Ben Franklin, a printer's boy, who protected himself 
 against the inclemency of the winter by exercise alone,
 
 DOCTOR FROST'S CASE. 217 
 
 and lived upon a single roll of bread a day. Who was 
 it when the veteran armies of Great Britain faltered 
 and fled, in the Indian war safely conducted the re- 
 treat, and secured the remnant of the army, though he 
 had " never set a squadron in the field, nor the division 
 of a battle knew, more than a spinster?" one George 
 "Washington, a Virginia planter. Who was it that shed 
 the brightest halo around the brightest reign that the 
 world ever knew the reign of Elizabeth the age of 
 the Raleighs the Burleighs the Bacons and the Syd- 
 neys? why it was one Ben Jonson, a quondam ap- 
 prentice to a bricklayer; and one Will Shakspeare, a 
 peasant boy, and shrewdly suspected of poaching upon 
 his neighbor's deer. Or passing from* astronomy, phil- 
 osophy and poetry, to law : Who was it that rose from 
 low beginnings to be Lord Chief Justice of England? 
 one Charley Abbot, whose father was a barber. Who 
 was it that rose to be Lord High Chancellor of Eng- 
 land ? one Jack Copley, whose lather was an American 
 painter. Who was it that became the brightest star in 
 the judicial constellation of Great Britain? one Phil 
 Yorke, whose father no man knew. Or passing to a 
 still further illustration Who was it that subjugated 
 three-fourths of Europe, and confident against the world 
 in arms, made the autocrat of all the Russias tremble 
 upon his throne? one Napoleon, who rose from the 
 station of a corporal to such consummate power to 
 such dazzling heights as to enable him to look down 
 upon emperors, kings, princes, and the potentates of the 
 earth while he unmade .them. Let us hear, therefore, 
 no more of one Sam Thomson for although I do not 
 mean to say that there never was a great man among the 
 " wealthy, curled darlings of the nation," yet I do mean 
 to say and all history sustains the assertion that lux- 
 ury and affluence are calculated to enfeeble the mind ; 
 and that those therefore who are great in despite of 
 them, would probably be much greater if removed from
 
 218 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 their influence. It is a well known fact among- gentle- 
 
 O O 
 
 men of the turf, that blooded horses, who for years have 
 been permitted to browse and career on broken, irregular 
 and mountainous pastures, have acquired a much greater 
 muscular strength, and in sportsmen's phrase, better 
 bottom, than those who are fed upon a level surface : the 
 application of this, although a physical illustration, is not 
 difficult. Men whose lives have been an uninterrupted 
 course of difficulty a perfect up-hill work, acquire in 
 time a self-dependence, a self-sufficiency, and a prompti- 
 tude in every emergency, which those who have been 
 accustomed to stand for fame on their forefather's feet, 
 or to lean for all pleasure upon another's breast, never 
 have known and 'never can know. 
 
 I throw out of consideration, therefore, the name and 
 the birth-place of the founder of this system, and proceed 
 to inquire into his works. By his fruits you shall know 
 him " Do men gather grapes from thorns, or figs from 
 thistles ?" His notion is, that all disease is the result of 
 a want of vital power, producing or allowing obstructions 
 in the system, which nature cannot, from her weakness, 
 without assistance, remove. He further contends that fever 
 is not disease, but the effort or to speak more accu- 
 rately the evidence of the effort of nature to expel dis- 
 ease ; and he strengthens this position by alleging that 
 chills are the enemies of man resulting in death, unless 
 superseded or overcome ; and that they invariably precede 
 a fever, which fever at the same time manifests the se- 
 verity of the attack, and the power and extent of natural 
 resistance; that by the relief or diminution of obstruc- 
 tions you aid the fever and assist nature, and in the same 
 proportion diminish the power of the disease: until finally 
 the obstruction being entirely removed by the reproduc- 
 tion of vital power, and the restoration of the equilibrium 
 of the system, the body is restored to a sound and pris- 
 tine state. 
 
 Now you may call this Thomsonism, or what you
 
 DOCTOR FROST'S CASE. 219 
 
 please, it smacks much of philosophy ; and it has been fol- 
 lowed by practical results of the most beneficial nature to 
 which it may triumphantly appeal. The only objection 
 to it seems to be that it is new. 
 
 Why this extraordinary objection to everything like 
 innovation ; as if nothing could prove good unless it is 
 encrusted or sanctioned by time? The celebrated Dr. 
 Harvey, one of the most distinguished of the medical 
 school, uses language upon this subject which is particu- 
 larly applicable. Thus he speaks : " By what unaccount- 
 able perversity in our frame does it appear, that we set 
 ourselves so much against anything that is new? Can any 
 one behold without scorn, such drones of physicians, who, 
 after the space of so many hundred years' experience and 
 practice of their predecessors, have not detected one single 
 medicine that has the least force directly to prevent, to 
 oppose, or to expel a continued fever ? Should any by & 
 more sedulous observation, pretend to make the least 
 step towards the discovery of such remedies, their hatred 
 and envy would swell against him as a legion of devils 
 against virtue. The whole society will dart their malice 
 at him, and torture him with all the calumnies imagi- 
 nable, without sticking at anything that would destroy 
 him root and branch ; for he who professes to be a re- 
 former of the art of physic, must resolve to run the haz- 
 ard of the martyrdom of his reputation, life and estate." 
 
 It is a mistake, sir, to suppose as the court seem to 
 suppose, from their course of inquiries that according to 
 this system, there is but one remedy for all diseases. 
 
 There is one remedy for the root or trunk of all dis- 
 eases ; and as when the axe is applied to the body of the 
 tree, the branches share in the fate of the parent stock, 
 and are felled with it: so when the obstruction from 
 which diseases in their various phases and branches 
 spring is eradicated from the system, nature again as- 
 sumes her empire, and peace and harmony and salubrity 
 prevail where rebellion and discord and disease had pre-
 
 220 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 viously existed. But there are seventy different kinds of 
 medicine embraced by the Thomsonian materia medica 
 possessed of emetic, diaphoretic, stimulating, sedative and 
 other properties all of which may be applied in judi- 
 cious adaptation either severally or in compounds, ac- 
 cording to the nature of the disease or the constitution or 
 necessities of the patient. 
 
 This is a plain, rational, common sense theory ; and 
 with the practical illustrations of its utility which we 
 have supplied from thousands of living witnesses, it is 
 neither to be contemned or rejected. The Thomsonian 
 system is not to be put down by the sneering system and 
 especially by those who are paid for sneering. It was 
 never the design of the great Creator of Earth and 
 Heaven if such a worm as I am may be allowed to 
 imagine what were the inscrutable designs of the Om- 
 niscient that recourse should be had to the vast and in- 
 numerable compounds of mineral, vegetable and poison- 
 ous substances, embraced by the materia medica of the 
 regular faculty, in order to effectuate the cure of his 
 creatures. 
 
 Indians live to a great age, even though subjected, as 
 they are, to the greatest exposure. Their only medicines 
 are herbs. Sickness with them is less fatal than with us ; 
 and this would appear to lead to the conclusion that 
 more patients die of the doctor than the disease. But if 
 this were not true, if death were more rife among them, 
 they at least are not subjected to a living and prolonged 
 death ; as is the result of calomel, arsenic, antimony, and 
 other mineral poisons. 
 
 But, say our adversaries, if the system of Thomson be 
 good, yet "lobelia" is possessed of poisonous properties; 
 and therefore may be supposed in this instance to have 
 caused death. This is strange and" inconsistent doctrine, 
 coming from that quarter. But it is as unsound and 
 untrue, as st'range and inconsistent; there is not a man 
 of them that has ever known it to produce death ; and I
 
 DOCTOR FROST'S CASE. 221 
 
 challenge the district attorney, and his colleague to 
 boot, to turn to any portion of the testimony by which 
 it so appears. Doctor Smith, of Rochester, is the only 
 one of all the witnesses who approaches anything like 
 such a result, and he states that he knew it to have 
 killed a lady who at first had a slight fever, and who 
 told him she took lobelia from a bottle, which he, the 
 doctor, saw on the table. 
 
 In the first place this is no testimony at all, as the 
 court intimated, being mere hearsay at the best. In the 
 second place, it was the communication of a deranged 
 woman, though in a supposed lucid interval ; and in the 
 third place, the doctor saw the patient in the close of her 
 life ; appears to know very little of her disease ; and, of 
 consequence, relies more upon fancy than upon facts for 
 his conclusions of all medical or judicial tests the most 
 feeble and unsatisfactory. 
 
 Now, having shown the state of the patient and the 
 probable nature of the disease : what were the prescrip- 
 tions and the course of treatment adopted by the defend- 
 ant, as in distinct proof upon this occasion ? For the 
 regular consecutive course let us refer to that testimony 
 to which we must all delight to turn the testimony of 
 Elizabeth Frost. [A portion of the testimony of Miss 
 Frost, describing symptoms and applications was here 
 read.] 
 
 Thus it appears, that repeated doses of " composition 
 tea," as it is called, made up of harmless ingredients, 
 were administered to him on the evening of the day 
 upon which he entered the establishment, and that he was 
 then put to bed. The next day he took more tea, and 
 took a vapor bath, which was continued for about ten. 
 minutes, tea being administered during its continuance ; 
 then he was carefully covered with blankets conveyed 
 to the bed, and shortly after took a dose of lobelia, and 
 in fifteen or twenty minutes after that, another dose. 
 Occasionally he seemed relieved, and then again re-
 
 222 FORENSIC SPEECHES OP DAVID PAUL BROWN. 
 
 lapsed. On Monday " a powerful dose," as it has been 
 called, of lobelia was given ; this for a time relieved 
 him. On the evening after the arrival of Dr. Davids 
 and Ulysses French, he got worse ; and it would seem 
 from that time until Tuesday evening, when he died, 
 the disease continued to increase. On the afternoon of 
 the last clay, the symptoms seemed, however, more favor- 
 able, and a gentle perspiration suffused the whole frame. 
 There seemed to be a point where nature made one final 
 effort to throw off disease with some signs of success 
 when, unluckily, owing to the fears of the brother, 
 Dr. Cheeseman was called in. If the course pursued 
 by Dr. Cheeseman has been correctly stated by the 
 witnesses ; and if my views of medical treatment be 
 correct ; there was much in it to condemn. 1 will con- 
 sider its excuse presently. The clothes were thrown off ; 
 the last applications removed ; the fire extinguished ; the 
 windows thrown open ; the doors fanned ; and an instan- 
 taneous and violent change thus produced in the tempera- 
 ture the body exposed to the influence of the air the 
 night damp and bleak. 
 
 "We do not mean to say that this course was adopted 
 by Dr. Cheesemau from any malevolent or uncharitable 
 purpose. Heaven forbid ! But I will ask whether the 
 sudden check of perspiration, attendant upon such treat- 
 ment, and operating upon a weak frame already having 
 suffered from two relapses, must not necessarily have 
 been followed by pernicious effects. I have always 
 been so taught, and appeal to the medical faculty, for 
 the correctness of the instruction. Dr. Manly, however, 
 informs us, that although ordinarily the check of per- 
 spiration may be dangerous, yet it is not so much so, 
 if at all so, while the patient is under the influence of 
 medicine ; inasmuch as I understood the learned doc- 
 tor as the medicine forms a counteracting power, which 
 resists external attacks upon the system. There is some 
 philosophy in this but might not even the conflict be-
 
 DOCTOR FROST'S CASE. 223 
 
 tween the medicine and the atmosphere prove fatal to 
 the patient, where life is reduced to so low an ebb, as in 
 the case of Tiberius G. French ? in such a condition 
 
 "That death and nature did contend about him, 
 Whether he lived or died." 
 
 They say, however, that the facts were not so that 
 Dr. Cheeseman did not expose the body, and subject 
 it to the influence of a chilly atmosphere. It is true 
 there is some slight variance in the testimony ; but there 
 is substantial consistency, with circumstantial variety, 
 which ever characterize the highest order of evidence. 
 Dr Metcalf, Miss Rae and Mrs. Frost, although they 
 refer in their testimony to different parts in this last 
 sad scene (each one having witnessed but a portion of 
 it), in the effect of their combined testimony leave no 
 question upon this subject. Pardon me while I show 
 you how entirely they agree. Dr. Metcalf says, that 
 when Dr. Cheeseman came in first, he threw off the 
 coverlet, opened the doors, and went away after exam- 
 ining the patient's tongue ; that when Dr. Cheeseman 
 returned with Dr. Sweet, he threw off all the bed cover- 
 ing, raised the sheet to examine the stomach of the 
 patient, and permitted him so to remain for an improper 
 length of time the windows were opened front and 
 back, as were the room doors and hall doors. Before 
 Dr. Cheeseman came in, the witness examined the patient 
 and found him in a gentle perspiration equally diffused 
 all over and thinks, to check a perspiration in this way 
 must prove fatal. 
 
 Miss Rae states, that when the bell rang she let in Dr. 
 Cheeseman and Mr. French she opened the chamber door 
 half way Dr. Cheeseman opened it all the way went 
 to bedside, said he was afraid the patient was too warm 
 threw off the top comforter. Dr. Cheeseman then 
 went for Dr. Smith, and in about fifteen minutes they 
 came in. Dr. Cheeseman then took all the clothes off
 
 224 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 of patient down to the feet the sheet was then raised 
 and the chest of patient was exposed. Dr. Cheesemau 
 then ordered witness to put out the fire ; he then 
 ordered the windows to be let down, which was accord- 
 ingly done. Dr. Sweet, and Dr. Cheeseman then re- 
 tired, and subsequently Dr. C. came in and ordered the 
 warm applications to be removed from the feet the 
 back and front windows were open. The witness then 
 withdrew, and upon coming in again found the patient 
 in a chill, and in a few minutes after he was seized 
 with convulsions of which he died. 
 
 Mrs. Phebe Frost, states, that she was present on 
 the evening French died found him, upon examina- 
 tion, in a moderate perspiration that after Dr. Cheese- 
 man came in the room was cool the doors were opened : 
 they appeared to be about to strip the patient and the 
 witness turned her back. It was a damp, foggy evening 
 the room was made too cool for a person in health 
 shortly after patient went into spasms. 
 
 Some attempt, it is true, has been made to contradict 
 these witnesses, but unavailingly. It will be found that 
 they are entirely corroborated by those who profess to 
 oppose them. 
 
 One thing is certain from the testimony and it ac- 
 cords with my theory, and with the Thomsonian system 
 that a chill immediately followed this exposure, and that 
 chill terminated in death. This, at least, is a fact ; and 
 facts are said to be stubborn things. You have here pre- 
 sented to you, cause and effect a cause that ceases to be 
 doubtful from the nature of the effect, and the rapidity 
 with which it followed. The abstract hypotheses, there- 
 fore, of distinguished members of the faculty, though re- 
 spectable for their authority, lose all their charm, when 
 tested by actual observation and experience yet who 
 shall say, notwithstanding these facts, that Dr. Cheese- 
 man killed the patient.
 
 DOCTOR FROST'S CASE. 225 
 
 We say that he acted up to the best of his skill and 
 ability. If mistaken, the motive should justify the 
 means. It would indeed have been a proud triumph of 
 science, had the learned physician redeemed the deceased 
 from the cold embrace of death. But is he to be cen- 
 sured or indicted for his failure certainly not. " In 
 great attempts 'tis glorious e'en to fail." And what 
 attempt is greater than that which is directed to the 
 preservation of human life. 
 
 But do you not perceive, gentlemen of the jury, that 
 all that is thus justly said in behalf of Dr. Cheeseman, 
 operates equally in defence of Dr. Frost. No man doubts 
 but that his remedies were prescribed with a view to 
 the restoration of his patient. Suppose those remedies 
 failed ; suppose even they produced death ; is there 
 nothing (in a criminal case) in the motive, in the design, 
 with which they are administered, calculated to protect 
 the defendant. If not, wo be unto all the professors of 
 the healing art. The terrors of their responsibility shall 
 unfit them for its due discharge, and they shall either in 
 spite of fate, save the life of their patient, or sacrifice 
 their own. Let that be once understood to be the law, 
 and whole hecatombs shall perish, without one helping 
 or alleviating hand. Let that once be understood to be 
 the law, and then show the diploma, that shall prove a 
 panoply against indictments like this. Upon this branch 
 of the argument I am the advocate of all physicians, 
 without regard to systems. Syslems, will ascertain their 
 respective levels, from unequivocal manifestations of pub- 
 lic opinion but the principle I here contend for, is salu- 
 tary, and necessary to all is salutary and necessary to 
 the public, upon which all must depend for support. It 
 is not as I have said, by persecution, that the one is to 
 be exalted or the other degraded. When did genuine 
 talent, or conscious worth descend to means like this ? 
 During the trial of this very cause ; one of the brightest 
 luminaries of medical science, in the person of the ven- 
 
 15
 
 226 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 erable and lamented PHYSICK, has sunk beneath the hori- 
 zon of the world, to rise, it is to be hoped, in brighter 
 and in purer realms. Whence, while among us, was his 
 lustre derived ? not from breaking down, but from build- 
 ing up not from crushing his supposed inferiors (for if 
 that were the case, his foot would have been planted 
 upon the necks of nine-tenths of his profession), but from 
 assisting and stimulating and enlightening all, and bor- 
 rowing assistance and stimulus, and light from all. The 
 truly great man becomes " in men's despite a monarch." 
 He is not merely illustrious from the insignificance of 
 those by whom he is surrounded ; but he shines in re- 
 flected as well as original brightness. 
 
 If the medicine produced death which no 'human 
 being has said, or can say, though you are asked to 
 draw that inference from the evidence then and then 
 only arises the question 
 
 Secondly. Was there gross ignorance or culpable 
 neglect on the part of the defendant Lata culpa or 
 Crassa negligentia in the language of the law. 
 
 If the medicine did not produce death or expedite 
 death ignorance in administering it, is no subject of 
 punishment under this indictment ; and if it did pro- 
 duce death, and there was competent skill in adminis- 
 tering it, it is but mischance, and certainly no felony ; 
 the design being salutary. I repeat it, this doctrine is 
 essential not only to the doctor but to the patient - 
 it is doctrine founded in universal policy. If a physi- 
 cian is to answer for the effect of his medicines ; and if 
 his skill is to be determined by the life or death of his pa- 
 tient ; medical science, as it has always been admitted to 
 be the most uncertain of all sciences, so will it be the most 
 dangerous ; and not a man among the regular or irregu- 
 lar practitioners, is safe. This is a subject to be reflected 
 upon : no man will be willing to place his reputation and 
 liberty in jeopardy, however urgent the occasion, by pre- 
 scribing in a dangerous disease in which prescriptions
 
 DOCTOR FROST'S CASE. 227 
 
 are most required, if this is to be the standard by which 
 his practice is to be tested and adjudged. It is, to be 
 sure, the case only of Richard Frost to-day ; but it shall 
 exhibit a more shining mark to-morrow. The result is 
 that patients will be allowed to die without an effort 
 to save them ; unless the law shall be considered as 
 involving the further absurdity of coercing medical at- 
 tendance, at the same time that it punishes its want of 
 success. The pernicious operation of this doctrine would 
 be measureless: in future no old woman will dare to 
 give a dose of camomile tea, for fear, that by the re- 
 motest probability it may produce death or death may 
 ensue. Nay, it would to refine upon the doctrine be 
 tantamount to suicide to take medicine yourself, without 
 the intervention of medical aid : if death were to be the 
 consequence, it would be felo de se ; and the rites of 
 Christian burial should be withheld, and in the place 
 thereof 
 
 " You should in ground unsanctified be lodged 
 Till the last trumpet." 
 
 I have contended under the first proposed point of 
 inquiry, that the medicine did not produce death ; and 
 if it did, I contend under the . second head of my argu- 
 ment, that it was administered with competent skill, 
 and care. Not skill and care according to an opposing 
 system ; which deems nothing skilful without a diploma 
 nothing careful that does not conform to its own 
 practice. To be skilful, according to the views of some, 
 you must give poisons ; and to be careful, you must pay 
 your patients flying visits only and, at least, be cer- 
 tain to be paid beforehand. In this sense Dr. Frost has 
 neither skill nor care. His medicines were harmless 
 he remained almost constantly by the bedside of his 
 young friend, and so far from exacting payment in ad- 
 vance, the only compensation or reward for his services 
 that he has ever received is THIS PROSECUTION ! It is,
 
 228 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 to be sure, more than he expected, but gratitude is boun- 
 tiful ! it is more thau he deserved, but generosity is 
 munificent ! 
 
 To resume the consideration of this point there was, 
 I maintain, neither ignorance nor neglect. His educa- 
 tion and his prior practice were such as to authorize a 
 conscientious man to administer medicine. No, say our 
 adversaries, " he was originally a locksmith !" Suppose 
 he was, does that render him less competent with fair 
 opportunities of instruction of understanding the wards, 
 and intricacies and mysteries of the physical system? 
 Many a locksmith might make a physician, though, from 
 the specimen afforded, it is certainly not every physi- 
 cian that would make a locksmith. " Honor and shame 
 from no condition rise." No rational man will pretend 
 to compare the science of medicine with that of the law, 
 in point of the requisite diversified accomplishments ; and 
 yet I can recall to your honor's memory one of many 
 instances in which a poor unlettered country boy, hav- 
 ing driven his load of hay into the city of Philadelphia, 
 and being attracted by youthful curiosity or driven by 
 force of character, into the courts of justice, was so cap- 
 tivated by forensic eloquence as to abandon his rustic 
 vocation and devote himself at once to the law. In a 
 few short years where do we find him ? On the very 
 pinnacle of professional glory, looking down upon those 
 who, standing for fame on their forefather's feet had, 
 presumed to look down upon him. That man was Wil- 
 liam Lewis a profound lawyer an unequalled advocate. 
 
 Recorder. I knew him well, and he merited all you 
 have said. 
 
 Well then, sir, let us not be taunted with the lock- 
 smith. Upwards of five years ago, Dr. Frost commenced 
 his preparatory studies. He directed his attention to 
 various medical authors, and at length became a student 
 under Dr. Sweet, an experienced physician connected 
 with the Thomsonian system. After continuing in the
 
 DOCTOR FROST'S CASE. 229 
 
 office of his preceptor for about a year, he opened an in- 
 firmary himself; and for three years and more has been 
 in an active and successful practice I think I may say 
 successful, for it does not appear that he has lost a single 
 patient. How many he has saved, this court room shall 
 testify. Ignorance is not to be inferred from the want 
 of a diploma, or the limited extent of a library. His 
 great study was the book of Nature 
 
 An institute 
 
 Of laws eternal whose unaltered page 
 No time cau change no copier can corrupt. 
 
 Practice and observation were his study, experience his 
 preceptor and are all these to be broken down, in order 
 that mere theory may be kept up ? But let us cast an 
 eye at the evidence his career affords. 
 
 Dr. Metcalf, who has been a physician for upwards 
 of ten years, is of opinion that the course pursued by 
 Dr. Frost, as he understood it, was judicious; and he 
 also states the character of Dr. Sweet (with whom Frost 
 studied) for skill and science ; and the course of examina- 
 tion to which candidates for admission to practice are 
 subjected before the board of medical censors. 
 
 Leonard Kirby states the case ot several cures of scar- 
 let fever in his family by Dr. Frost, some years ago. 
 
 Andrew Lockwood lost two children by measles and 
 scarlet fever, while under the treatment of regular phy- 
 sicians. Subsequently two others were taken with the 
 same diseases, and despairing of the regular practice, 
 Dr. Frost -was sent for, and both the little sufferers were 
 speedily restored to health. 
 
 Valentine Kirby testifies, that he has employed Frost 
 repeatedly in his family for his wife, his children and 
 himself. In one instance Dr. Anderson attended a child 
 for inflammation of lungs it got worse he thought it 
 would not live, and called in Dr. Frost. Under Frost's 
 treatment the child got better. The regular physician
 
 230 FORENSIC SPEECHES OP DAVID PAUL BROWN. 
 
 afterwards called and said "continue the drops." He 
 didn't know Frost had l>een there. Instead of continu- 
 ing the drops, he continued the Thomsonian system, 
 which cured the child, and the regular physician took: 
 the credit of it. 
 
 I say then, there is no manifestation of culpable neg- 
 lect, or gross ignorance. The suggestion of rashness 
 which may be embraced either by the term " neglect," or 
 " ignorance," should be weighed with great caution in 
 the language of Judge Brice in the Maryland trial, 
 which has been more than once referred to : " Physi- 
 cians are often obliged to exercise a discretion which to 
 by-standers and unskilful persons may appear rash and 
 unfeeling; but which may, nevertheless, be dictated by 
 the soundest judgment and the kindest feelings toward 
 the patient, and an anxious desire to promote his re- 
 covery. To use the language of Lord Hale, ' God forbid 
 that a failure should subject the unfortunate practitioner 
 to a criminal prosecution, when he has done the best he 
 could to effect a cure.' * 
 
 Thus, sir, I have considered : first, the question, 
 whether the medicines, or the course of treatment 
 combined, produced the death of the deceased ; and 
 in the second place, I have bestowed some attention 
 upon the allegation of gross ignorance and culpable 
 neglect. If the prosecution has not succeeded in es- 
 tablishing to the entire satisfaction of the jury, the 
 affirmative of both propositions, it is impossible, legally 
 speaking, that the defendant can be convicted : that is, 
 if the treatment did not produce death, however ignorant 
 or unskilful or neglectful it may have been, no conviction 
 can ensue. For let it be remembered, that the ignorance 
 and neglect are connected with the treatment ; and not 
 relied upon as substantive or independent grounds of 
 accusation. 
 
 There is another matter, that although I trust it is not 
 necessary to be enforced upon your minds, in a case like
 
 DOCTOR FROST'S CASE. 231 
 
 this, yet it is never utterly to be lost sight of in any 
 criminal case. It is this. That in order to render a ver- 
 dict of conviction, your minds must be relieved from 
 everything like reasonable doubt ; and that doctrine is 
 applicable, not only to the interpretation of the facts, but 
 to the conclusions of law. It is founded in mercy, it is 
 true, but is not unmixed with justice, and a due regard 
 to the protection of the community. It is better, much 
 better, that ninety-nine guilty men should escape, thau 
 that one who is innocent should suffer. 
 
 The law does not require a sacrifice : it punishes, it is 
 true, where guilt is clearly shown ; but it is not that jus- 
 tice delights in the groans of the victim, but that society 
 may be preserved from the influence of evil example, and 
 protected from the encroachments of vice. With the 
 benefit of these reflections, it will be for you, the sworn 
 twelve, to say how far it comports with your sense of 
 duty to pronounce a verdict of guilty against the defend- 
 ant, now upon his trial. My task is accomplished. 
 Yours, and it is a much more important one, as it 
 affects the character and condition of the defendant, 
 remains to be fulfilled. It is for you to restore him to 
 his reputation, to his family, to his hopes neither of 
 which he has justly forfeited. It is for you to return him 
 to the affection of a sister ; to the arms of an aged and 
 respectable mother; or -to consign him to the cells of a 
 penitentiary, and thereby not only blast his reputation, 
 but also to destroy all those who cling about him, for 
 their consolation and support. This, I may therefore be 
 allowed to say, is a momentous question. It is jonr pro- 
 vince to decide it and for its decision, you are responsi- 
 ble to yourselves, your country and your God. 
 
 During the trial of the preceding case, in which all the 
 medical faculty of New York were enlisted against the 
 professors of the Thomsonian system, the newspaper re-
 
 232 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 porters took a very active part in behalf of the prosecu- 
 tion, and carried their zeal so far as to supply questions 
 to the district attorney and his colleagues, and thereby 
 interfered most improperly with the propriety and dignity 
 of a judicial tribunal ; this interference at last became so 
 gross as to compel Mr. Brown, though most reluctantly, 
 to bring the subject to the public notice of the court, 
 which he did in the following: brief address : * 
 
 Pardon me, may it please your honor, for interrupt- 
 ing the proceedings I must be pardoned for I speak 
 under an irresistible impulse, which would seem to carry 
 with it its own excuse. I trust I am neither "splenitive 
 nor rash ;" but that man who can endure the indecorum 
 of such an examination as this, in a court of justice, 
 must be lost to all sense of right to all obligations of 
 duty, to all professional or personal respect. I have en- 
 dured it until patience is no longer a virtue; and now I 
 feel myself imperatively called upon to express my un- 
 qualified reprobation of the course thus pursued. "What 
 a scene is this ! what a sorry sight is here presented ! a 
 respectable young man placed at your bar upon a charge 
 of felonious homicide, surrounded by his parents, by his 
 relatives, his anxious and sympathetic friends, all ab- 
 sorbed in speechless anxiety ; while arrayed on the side 
 of the prosecution, stands the district attorney, aided 
 by his learned associates, and supported by hosts of 
 willing and eager witnesses, standing, as it were, " like 
 grayhounds in the slip." To all this, sir, I take no objec- 
 tion ; it is sanctioned by the law ; and the legitimate ter- 
 rors of the law, we must be, and we are prepared to meet. 
 Yet is not all this enough ! not only is the witness com- 
 pelled to submit to a rigid examination by the counsel ; 
 but scores of learned and medical professors, desert for a 
 time their own science, and here publicly enlist them- 
 
 From Report of the Trial.
 
 DOCTOR FROST'S CASE. 233 
 
 selves, to the disgrace of justice, beneath the bloody flag 
 of this prosecution. From every quarter of this vast hall, 
 the constables and the tipstaves, and the bystanders are 
 put into requisition, for the purpose of forwarding written 
 communications and interrogatories to the law officers of 
 the district. Is this dignified ? is it decent ? is it 
 honest ? Nay, more, sir, following up this iniquitous 
 example, and converting the liberty of the press, into the 
 licentiousness of the press, (the heart speaks, and I will 
 not restrain it) the very stenographers and reporters to 
 whose industry and skill the community is indebted for 
 the daily notices of this trial losing sight of the limits 
 of their privilege, also lend their important aid to the 
 learned counsel, and supply them with new inquiries 
 when their own genius may flag. This is bad very 
 bad, but it is not the worst feature in this anomalous 
 course. Those stenographers are to report their own ques- 
 tions they are to report the answers to those questions ; 
 both questions and answers are subject to the influence of 
 preconceived partizan opinions upon the subject of in- 
 quiry ; and thus in to-morrow's account of this trial in 
 the public journals, every thing will be exhibited in the 
 most unfavorable light for the defendant: the printer is 
 the opposite counsel. If the prisoner is to be offered up 
 as a victim, commit him at once to the mob ; hand him 
 over to his concealed or avowed enemies ; and, instead of 
 subjecting him to these lingering torments, let the work 
 of destruction at once be accomplished. But if this be a 
 trial if these be the hallowed precincts of justice if the 
 law, or life, or liberty be more than a name ; let not, I be- 
 seech you, let not the record of this important issue be 
 stained and blotted by irregularities like these at all 
 events, may it please the court, their history shall bear 
 upon its face my humble, but prompt and unequivocal 
 protest. 
 
 I am aware, may it please the court, that this is a bold 
 step upon my part : in behalf of an innocent, and an op-
 
 234 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 pressed man, it becomes me to be bold and I should be 
 a traitor to my trust to myself and to my God, were I 
 capable of weighing mere considerations of personal favor 
 or advancement, in opposition to the solemn convictions 
 of conscientious duty. If I enjoy the applause of my 
 own feelings, I shall not require that of the world if I 
 am free from self-reproach the reproach of others will 
 lose all its terrors. 
 
 Here Mr. Phenix rose and contended that he not only 
 had the right to the assistance of the medical gentlemen, 
 and the reporters, but of every individual in the room, 
 who might think proper to communicate information 
 upon the subject of the trial, or to propound inquiries 
 and he concluded by observing, that the objection of the 
 defendant's counsel arose from fear that the imperfections 
 of the Thomsonian system, and the guilt of the defend- 
 ant, should become matters of notoriety. 
 
 Mr. Brown resumed Sir, I am not afraid of any legal 
 course it is a departure from the law that I deprecate, 
 and fear. There is nothing in the talents of the counsel, 
 great as they are there is nothing in the prosecution 
 rightly conducted, or in "twenty times its stop," that 
 can appall me. Far, very far from it ; and I beg leave to 
 tell the learned gentleman, who taunts us with our fears, 
 that he will find much more serious cause for alarm, by 
 looking closely at home. And I tell him further, sir, so 
 far am I from deeming this cause in peril, that I possess 
 the power at any moment here in the city's eye, of 
 strangling, *|yes strangling this fondly cherished offspring, 
 of whose infallibility he boasts. 
 
 The court decided that the district attorney had a 
 right to call in the aid of scientific men, but that it would 
 be a most indecent exhibition for any one to pass a writ- 
 ten question that " such a proceeding would be a most 
 improper administration of justice." The recorder spoke 
 with considerable warmth, and indirectly rebuked the 
 medical faculty for their disgraceful conduct.
 
 HOLMES' CASE. 
 
 COMMONWEALTH v. WILLIAM HOLMES. 
 SKETCH OF FACTS. 
 
 At the April Sessions of the Circuit Court of the 
 United States, a case of absorbing interest was brought 
 to trial it was a prosecution against William Holmes, 
 for the murder of Francis Askin, and arose out of the 
 following circumstances: The American ship, William 
 Brown, "left Liverpool on the 13th of March, 1841, 
 bound for Philadelphia, with 'a crew of seventeen, and 
 sixty-four passengers Scotch and Irish emigrants. 
 
 About ten o'clock of the night of the 19th of April, 
 when distant two hundred and fifty miles southeast of 
 Cape Race, the vessel struck an iceberg, and filled so rap- 
 idly that it was evident she must soon go down. The 
 "longboat" and "jolly boat" were lowered; the cap- 
 tain, second mate, seven of the crew, and one passenger, 
 got into the jolly boat ; and the first mate, eight sea- 
 men [of whom the prisoner was one,] and thirty-two 
 passengers, got indiscriminately into the long boat ; the 
 remaining thirty-one passengers were obliged to remain 
 on board the ship, which in an hour from the time she 
 struck went down, carrying with her every person who 
 had not escaped to one or other of the boats. The long- 
 boat leaked, and all on board were in great jeopardy. 
 The gunwale was within from five to twelve inches of 
 'the water, and she was supposed to be too unmanageable 
 to be saved ; in a moderate blow she would have been, 
 swamped very quickly. 
 
 On the following night (Tuesday), after experiencing 
 great hardships and perils, the mate finding the boat 
 unmanageable, and being in immediate danger from the 
 
 (235)
 
 236 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 heavy sea and floating ice gave the order, which con- 
 signed fourteen of the passengers to a watery grave ; 
 among whom was Askin, to whom this indictment re- 
 lated. Holmes, the defendant, assisted in the execution 
 of this order, and his participation in the deed was the 
 subject of the indictment. 
 
 The trial commenced on the 13th April, 1842, and 
 terminated with a verdict of guilty on the 23d of April. 
 The defendant was sentenced to six months' imprison- 
 ment and fine which latter was^ remitted by the Presi- 
 dent, and the defendant discharged November 14th, 
 1842. 
 
 For the United States. 
 
 Messrs. OLIVER HOPKINSON, GEO. M. DALLAS, WM. M. 
 MEREDITH. 
 
 For the Defence. 
 
 .Messrs. EDWARD ARMSTRONG, ISAAC HAZLEHURST, DAVID 
 PAUL BROWN.
 
 HOLMES' CASE. 237 
 
 SPEECH J]ST HOLMES 1 CASE. 
 
 WITH DEFERENCE TO THE COURT: 
 
 How wonderful and mysterious, gentlemen of the jury, 
 are the vicissitudes of human life. How frail and pre- 
 carious are our best holds upon human happiness. Man, 
 the boasted lord of creation, is the sport of every wind 
 that blows of every wave that flows. He appears like 
 the grass of the field, flourishes and is cut down and 
 withers ere the setting sun like the dews of the morn- 
 ing he sparkles for a brief moment and is exhaled. 
 There is nothing earthly certain but uncertainty there 
 is nothing true-, but HEAVEN. 
 
 What a salutary practical commentary,is supplied 'by 
 the present intensely interesting occasion, upon the truth 
 of this melancholy doctrine. On the thirteenth day of 
 March,in the last year, a staunch and gallant ship, with a 
 competent commander and a noble crew, with sixty-five 
 passengers on board, sailed from the port of Liverpool, 
 destined for that of Philadelphia ; a destination, alas ! 
 which was never accomplished. 
 
 For more than a month, notwithstanding she encoun- 
 tered storms and tempests, she outrode them all ; and like 
 a thing of life, held on her way rejoicing. 
 
 On the 19th of the succeeding; month she arrived in 
 
 O 
 
 fairer climes and enjoyed more propitious gales: but 
 even then, when every heart throbbed with the antici- 
 pated joy of a speedy arrival, the angel of destruction 
 spread his broad black wings above her, and while
 
 238 FOKENSIC SPEECHES OP DAVID PAUL BROWN. 
 
 traversing the ocean with all sails set, at the rate of 
 ten knots an hour, she came into collision with an island 
 of ice, and in a moment her pride was prostrate, and the 
 doomed ship was reduced to an actually sinking condi- 
 tion, affording scarcely time for her unhappy inmates, in 
 the moment of their extremest need, to cry GOD BLESS 
 us. The ocean, her favored element, of which for years 
 she had been the pride, became her sepulchre and the 
 winds that had borne her upon many a prosperous voy- 
 age, sung her last sad, only requiem. Here is a scene 
 strikingly presented, in which the theories of philosophy 
 are reduced at once, to a frightful reality. 
 
 But there is still another picture to which I would 
 invite, and upon which I would fasten your attention. 
 On that dreadful night the crew and half the passengers 
 having taken to the boats the agonizing voice of a 
 mother is heard even beyond the tumult and the clamor, 
 calling for the preservation of her daughter, who in the 
 consternation of the moment had been forgotten, and re- 
 mained on board the fated ship. In an instant, you may 
 see a gallant, athletic and powerful sailor, passing hand 
 over hand, by dint of a slender rope, until he regains the 
 vessel. And you may further behold him upon the 
 quarter deck in the depth of the night, surrounded by 
 the wild and wasteful ocean with one arm entwined, 
 around a sickly and half naked girl, while with the 
 other, he bravely swings himself and his almost life- 
 less burthen by means of the " boat tackle falls" from 
 the stern of the sinking ship into the boat below ; and at 
 once restores the child to the open arms and yearning 
 heart of the mother. Yet to-day, I say it to the disgrace 
 of the law, after months of solitary imprisonment, you 
 here see that self same heroic sailor arraigned upon the 
 odious charge of having voluntarily and wantonly de- 
 prived a fellow creature of his life ; and THAT, gentlemen 
 of the jury, is the charge that I am to argue and you 
 are to determine.
 
 HOLMES' CASE. 239 
 
 I say this is what you are to determine. It may 
 not be inappropriate, however, though certainly not 
 vital to this cause, that I should ask your attention, in 
 passing to the real subject in controversy, to two other 
 indictments which stain the records of this court, re- 
 ferring to portions of the same transaction ; the first 
 charging the defendant with murder, which the grand 
 jury promptly ignoramused and the second, in the 
 impotency of disappointed revenge, accusing him of lar- 
 ceny in having stolen a quilt, of the alleged value of three 
 dollars, which charge shared the same fate. You can 
 
 ' O 
 
 form some idea of the dignity of the United States and 
 its value, while observing how it has been cheapened 
 by itself. This very quilt, permit me to remind you, 
 is that which was converted by Holmes into a sail for 
 the boat, in a moment of the extremest peril, in order 
 that he might save the lives of those very beings who 
 gratefully appeared before the grand jury upon the 
 first opportunity, in order to convict their benefactor of 
 these imputed crimes : I shall speak of this hereafter 
 for the present I merely advert to it, and pass at once 
 to more important matters. 
 
 In approaching the consideration of this case, which 
 I do with pride, and pleasure, and confidence, I cannot 
 but express my regret, to adopt a military phrase, that 
 I am called into conflict, not only with the regular 
 troops of the United States, but with her recently 
 enlisted volunteers. I am sorry that my gallant friend* 
 who led on the attack so boldly yesterday and who is 
 a legitimate leader everywhere should so far have re- 
 turned to his first love, as to desert the white banner 
 of innocence (under which he has lately so successfully 
 fought) to engage once more beneath the bloody flag of 
 such a prosecution as this. Since it is so, however, 
 let him nail that flag to the mast. We should be 
 
 lA. Dallas.
 
 240 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 happy to abide by every principle of civilized warfare ; 
 but in a mortal controversy in a death struggle like 
 this we shall neither ask nor will we receive any 
 quarter. 
 
 This case, in order to embrace all its horrible rela- 
 tions, ought to be decided in a long boat, hundreds of 
 leagues from the shore, loaded to the very gunwale 
 with forty-two half naked victims ; with provisions only 
 sufficient to prolong the agonies of famine and of thirst ; 
 with all the elements combined against her ; leaking 
 from below, filling also from above ; surrounded by ice ; 
 unmanageable from her condition, and subject to de- 
 struction from the least change of the wind and the 
 waves the most variable and most terrible of all the 
 elements. Decided at such a tribunal, nature intui- 
 tion would at once pronounce a verdict, not only of 
 acquittal, but of commendation. The prisoner might, 
 it is true, obtain no outward atonement for nine months 
 of suffering and of obloquy ; but he would at least enjoy 
 the satisfaction always to be derived from a conscious- 
 ness of rectitude, in which the better part of the world 
 sympathize, and in which it confides. 
 
 Alas ! how different is the scene now exhibited. 
 
 You sit here, the sworn twelve, the centre of that 
 society which you represent, surrounded by the sanc- 
 tions of those laws which for a time you administer 
 reposing amidst the comforts and delights of sacred 
 homes directed and instructed by a judge, who, being 
 full of light himself, freely imparts it to all he ap- 
 proaches to decide upon the impulses and motives of 
 the prisoner at the bar, launched upon the bosom of 
 the perilous ocean surrounded by a thousand deaths 
 in their most hideous forms, with but one plank between 
 him and destruction. What sympathies can be inspired 
 by relative positions, so remote, so opposite as these ? 
 
 Translate yourselves, if you can, by the power of 
 imagination, to those scenes, those awful scenes to 

 
 HOLMES' CASE. 241 
 
 which this proceeding refers. Fancy yourselves in a frail 
 barque, encompassed by towers of ice Olympus high, 
 and still magnified by the fear natural to man ; exposed 
 to the bleak and pitiless winds, surrounded by forty 
 wretches as miserable as yourself deepening your own 
 afflictions by the contagion of grief; removed a hundred 
 leagues from land, and still further removed by a des- 
 titution of those means by which alone it could possibly 
 be reached. 
 
 ISTay, further, superadd to these horrors the apprehen- 
 sion of famine of storm bearing assured destruction 
 on its wing ; and connect all these with the scenes and 
 terrors of the night just past enough to appall the 
 stoutest heart and overthrow the firmest brain and 
 then tell me, not what the defendant should have done, 
 but what the most severe and rigid would have done, in 
 trials and perils and calamities like these. It is easy 
 to scorn the tempest while sporting with the zephyr 
 to laugh at the ocean while secure from its ravages and 
 horrors to expatiate upon the harmlessness of ice, 
 while indulging in it, perhaps as a luxury or to un- 
 derrate famine in the abundance of your supplies but 
 may that Power that " rides on the whirlwind and 
 directs the storm," protect you against the sad reality 
 of those afflictions which in their mere theory are often 
 so readily overcome by your self-secure, cold blooded 
 and reckless philosophy. Philosophy readily triumphs 
 over past and future and remote ills; but present and 
 immediate ills grapple closely with the heart, and tri- 
 umph over philosophy. 
 
 Let us now come to those facts which distance and defy 
 all the powers of fancy. Before doing this, however, you 
 will pardon me in examining the legal character of his 
 charge: First, as relates to the act of Congress. Sec- 
 ondly, as regards the inherent defects of the indictment. 
 Thirdly, as respects its inconsistency with the evidence in 
 
 the cause. I have for the present but a word to say upon 
 
 16
 
 242 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 each of these subjects, rather to show that they have not 
 been overlooked, than with any intention elaborately to 
 discuss them. 
 
 The act of Congress leaves manslaughter where it was 
 at common law, so far as regards its definition it only 
 modifies its punishment. The punishment is not more 
 than three years, with a penalty not exceeding one thou- 
 sand dollars. You hare been truly told by the opposite 
 counsel that the court may reduce their sentence to a 
 merely nominal punishment. That is the business of the 
 court, however, and after your verdict is found, your in- 
 fluence is extinct. "Whether the punishment is to be an 
 hour or a year, it is an infamous punishment ; and you 
 should be equally cautious in resting your verdict upon 
 unquestionable and satisfactory proof. I marvel, indeed, 
 that my learned friend, while haranguing you upon the 
 enormity of this offence, should attempt soothing you 
 into a verdict by the suggestion that it would probably 
 be attended with no evil to the defendant. Allow me 
 to deprecate this questionable mercy it is calculated, if 
 not designed, to seduce you from allegiance to your du- 
 ties. If the defendant be guilty, he should meet the 
 rigor of the law ; if innocent, his rights should not be 
 compromised by the imaginary insignificance of his an- 
 ticipated punishment. I make no claims upon your 
 charity my appeals are to your justice. 
 
 Now, as to the internal defects of the indictment. The 
 indictment contains four counts for manslaughter. That 
 is, for unlawfully, but without malice, depriving a fellow- 
 creature of his life. Malice would elevate what would 
 otherwise be manslaughter, into murder. 
 
 The first count charges the homicide on board of the 
 ship "William Brown, belonging to Stephen Baldwin. 
 
 Th$ second on board of a vessel, name unknown, be- 
 longing to Stephen Baldwin. 
 
 The third and fourth are the same, with the exception
 
 HOLMES' CASE. 243 
 
 of Thomas Vogel's name being substituted for that of 
 Stephen Baldwin's. 
 
 Now, these charges are incompatible with each other, 
 and are calculated to bewilder the prisoner in his defence. 
 They cannot all be true, and as there has been no election 
 on the part of the prosecution, a verdict upon all will in- 
 volve an inconsistency obviously illegal, if not utterly 
 fatal. The doctrine of Milton, as applied to angelic ex- 
 istences, that, vital in every part, they cannot, but " by 
 annihilation, die," is not true in its application to indict- 
 ments. They are mortal in every part, and the destruc- 
 tion of one part of a count, is the destruction of all parts 
 of the same count. One count, it is true, does not destroy 
 another when they are at all compatible with each other, 
 and when an election has been made ; but when the 
 charges contained in an indictment are, as in this case, 
 totally inconsistent, if the jury should find a verdict of 
 guilty upon the indictment generally, it will be subject to 
 a motion in arrest of judgment, and it can never stand. 
 
 Lastly, I say, if the indictment were unquestionable in 
 itself, it is not supported by the proof. I say nothing in 
 regard to the error in the time stated, which, in some 
 cases might be fatal, but probably not in this. The ship, 
 as appears by the evidence, neither belonged to Baldwin 
 nor Vogel, but to McCrea, who is not even referred to. 
 Baldwin, however, it is said, held a claim to her a mort- 
 gage upon her as collateral security. That does not im- 
 prove the case of the prosecution. Special property may 
 be sufficient, but it must be special property accompanied 
 by possession ; or at all events possession itself, actual or 
 constructive. Suppose a person were indicted for com- 
 mitting a burglary upon the house of A. B., and upon 
 the trial it appeared that the house was the dwelling of 
 E. F., and that the person whose name was introduced 
 into the indictment was merely the mortgagee, certainly 
 the charge could not be sustained for a moment. I 
 merely, for the present, hint at, rather than press these
 
 244 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 objections. I shall, if necessary which it probably will 
 not be have the benefit of them hereafter. 
 
 We pass now to the law more immediately connected 
 with the facts of this case. Russell, Paley, Rutberforth, 
 Blackstone, and, above all, Lord Bacon, are the authori- 
 ties upon which the entire law of the case rests. 
 
 As to Puftendorf, Grotius, Heineccius, and others who 
 have been quoted, with all their lofty pretensions, they 
 do not contain as much wisdom or light as may be found 
 upon each and every page of " the wisest and brightest of 
 mankind." So far as regards the present subject, they 
 exhibit more pedantry and casuistry than either learning 
 or common sense. 
 
 [The books referred to and the doctrine of self-defence, 
 &c., were here discussed at length.] 
 
 I have thus given you the law. There is but little difii- 
 culty between us in regard to it. The labor is in the ap- 
 plication of the law. 
 
 I maintain that a well-founded apprehension of peril to 
 life, justifies self-defence to the extent of destroying the 
 adversary. The opposite counsel maintain that the peril 
 must be actually inevitable. This I deny, and say that it 
 is enough if it be honestly and reasonably supposed to be 
 so. An inevitable danger I don't understand. 
 
 They maintain that the peril must be not only inevi- 
 table, but immediate. I answer, it need be neither ; bat 
 it must reasonably be supposed to be both. 
 
 Suppose upon an indictment for manslaughter a plank 
 be measured in court, with square, rule and compass, and 
 it be found that it would have sustained two persons; 
 still, is he, who in his terror, supposes it would not, to be 
 liable to conviction ? Certainly not. 
 
 The prosecution contends that if there be a doubt as 
 to the inevitable peril, the defendant is to be convicted. 
 I say it is presumed to have been considered inevitable, 
 from the fact itself; there being no pretence of animos-
 
 HOLMES' CASE. 245 
 
 ity, but clear evidence of the greatest kindness and sym- 
 pathy. 
 
 They say that if the danger were inevitable, still the 
 defendant had no right to make selection. To this I re- 
 ply, that this argument involves the necessity of throw- 
 all overboard. 
 
 The selection would have been just the same, if they 
 had destroyed those who are living now, and permitted 
 the others to remain. 
 
 But say they, lots might have been cast. If the peril 
 were inevitable and immediate, that could not have been 
 done. We hear for the first time of casting lots in a 
 sinking boat where the question is whether any can be 
 saved, rather than who shall be lost. Lots in cases of 
 famine, where means of subsistence are wanting for the 
 number of the crew, are matters which, horrible as they 
 are, are comparatively familiar to us. But to cast lots to 
 see who shall go first, when all are going, is reserved for 
 the ingenuity of the counsel, who constructs a raft on 
 board of ship, in the depth of the night, with the pros- 
 pect of her going down before he drives the first nail, or 
 plies the first rope. 
 
 Now I have shown, if these views be sound, that apart 
 from the preservation of the rest of the passengers, and 
 themselves, these men could have had no inducement to 
 take life. That the magnanimity, gallantry, and tender- 
 ness of Holmes, utterly forbid the idea. That therefore 
 it is honestly and fairly to be inferred, that they appre- 
 hended immediate peril, and were sustained by the laws 
 of nature in acting accordingly. 
 
 As to the circumstance of Frank Askins offering five 
 guineas to preserve his life till morning, and its being re- 
 fused ; that so far from making against us, makes for us. 
 If they had complied with that request, they must either 
 have sold the lives of all on board for five sovereigns ; or 
 have offered conclusive evidence that they did not con- 
 ceive the peril to be immediate. If they had even re-
 
 246 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 ceived the money, and afterwards deprived him of life ; 
 the money itself would have been an indication, either 
 of a corrupt motive, or a reliance on their own security, 
 incompatible with the doctrine for which I contend. It 
 was a terrific deed, to be sure, consider it which way you 
 will ; and the very horror of the deed constitutes part 
 of its defence : as it is fairly to be presumed it would not 
 have been resorted to, except in a case of a horrible neces- 
 sity. 
 
 The fate of the two sisters, is spoken of with peculiar 
 pathos. I maintain their lives were never sacrificed by 
 the crew. 
 
 1st. Because there is no positive proof to that effect 
 mere loose suggestions or inferences. 
 
 2d. Because there was not a hand laid upon any other 
 woman in the boat. 
 
 3d. Because never mentioned by witnesses upon pre- 
 vious examinations. 
 
 4th. Because the conduct of the sisters shows that it 
 was an act of self-devotion, which is almost admitted 
 indeed ; and which adds another bright page to the re- 
 cords of time, exhibiting the fidelity, affection and devo- 
 tion of a woman's heart. 
 
 Considering it in this point of view, its glory is almost 
 equal to its horrors neither of which is attributable to 
 the defendant. 
 
 But it is said, that if the passengers had been allowed 
 to live until the next morning, a ship was at hand. 
 
 First I answer, that the probability was, that they 
 could not have survived the night. 
 
 And secondly that without prescience, they could not 
 know of the ship being at hand. 
 
 Now let us look to the next morning. The boat is still 
 filled with water the peril is not abated, and two more 
 half frozen wretches are removed some few hours after 
 this, the vessel is discerned, and Holmes, and the passen- 
 gers, through the instrumentality of Holmes, are saved.
 
 / HOLMES' CASE. 247 
 
 As to the notion that there is any distinction between, 
 sailors and other men, in their natural rights of self-de- 
 fence, it is not to be tolerated. If the peril were not 
 imminent, no man has a right to destroy the life of 
 another for the preservation of his own. If it were im- 
 minent and apparently inevitable, any man, without re- 
 gard to condition, vocation, or degree, had that right. 
 A state of nature implies the absence of all but natural 
 law ; and natural law is not to be affected by artificial 
 distinctions. A sailor is upon equality with passengers 
 nay he is upon an equality with his captain in emergen- 
 cies like this. 
 
 With these views of the law let us turn to the facts. 
 
 On the 13th March, 1841, as has been said, the ship 
 sailed from Liverpool for Philadelphia she came in con- 
 tact with the ice on the 19th of April and in one hour, 
 and less, was reduced to a sinking condition. 
 
 The captain having unavailiugly attempted the pumps, 
 ordered the boats to be launched from the ship. Thirty- 
 three passengers and nine sailors entered the long boat, 
 and the captain, seven sailors and one passenger entered 
 the jolly boat. The boats were moored at the stern of 
 the ship,by dint of a ten fathom rope, attached to the 
 vessel. And in a few minutes the ship sunk forever ; the 
 rope being severed at that very moment by Holmes, who 
 was posted for that purpose. 
 
 The counsel at this point of the case indulged in a 
 severe and unmeasured attack upon Captain Harris, for 
 having deserted the vessel ; maintaining that he was 
 bound to have sunk with her that he has disgraced the 
 American name by not having dope so and that he 
 presents by his conduct a shameful contrast to Grace 
 Darling, who placed her life in peril, to redeem the passen- 
 gers and crew from a wreck, in the neighborhood of a 
 light house, of which her father was the keeper. 
 
 Now this is all very poetical, very beautiful, and what 
 embraces both, very gallant on the part of my learned
 
 248 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 friend. Rather than take the laurel from the brow of 
 Grace Darling or any other darling, I would wear the 
 cypress round ray own; but you will still allow me to say, 
 there is a vast difference between an experiment in a life 
 boat and almost within hail of the shore, and the scene to 
 which our attention is here called one hundred leagues 
 from land in the darkness of night and surrounded by 
 icebergs : the captain was not bound to do more than he 
 did he was bound to do all that he did. His calmness 
 and composure in the midst of these horrible scenes 
 contributed to save the lives of upwards of fifty human 
 beings ; although it is true, that he was not enabled to 
 rescue those who remained on board of the ship. Their 
 temporary rescue would have resulted finally in the loss 
 of all. 
 
 As to his sacrificing his own life, sympathy for others 
 forbade it. If he and all of the sailors had perished, so 
 far from its operating to the benefit of the passengers, it 
 would have proved their inevitable and total destruction. 
 
 But say the gentlemen, why didn't he construct a raft 
 he had an hour to do it in. He had no assurance of a 
 moment the ship was laden with iron two columns of 
 water of the thickness of a man's body, were pouring 
 through the stem of the ship into her very vitals. And 
 although nearly an hour elapsed after leaving her, and 
 before she sunk, how was he to determine upon the prob- 
 ability of her surviving the shock. The learned counsel's 
 argument* is quite consistent throughout the case. He 
 says a raft should have been constructed because it turned 
 out that the vessel did not sink for an hour as he says 
 that the men should not have perished, because a ship 
 afterwards hove in sight. 
 
 But, it is further said by the learned gentleman, that 
 the captain might have taken oft* more of the passengers. 
 That suggestion is in direct opposition to the evidence. 
 The gunwales of the boat were within six or tight inches 
 of the water; a single additional person would have
 
 HOLMES' CASE. 249 
 
 swamped them and thus all must have perished, per- 
 haps, from an ill-judged effort to save one. The conduct 
 of the captain was not only judicious, but humane. If 
 he had returned alongside of the ship he would have been 
 ingulfed by the vortex, produced by her sinking or, sub- 
 jected to a calamity scarcely less terrible, by some of the 
 inmates of the ship jumping into the boats. As to the 
 suggestion that he might have at least rescued the child- 
 ren in the ship, that attempt would have resulted in the 
 same consequences even supposing that the perishing 
 parents would have been willing to sever themselves in 
 this moment of direst emergency, from offspring more 
 precious than even life itself. 
 
 I have dtemed it my duty to say this much in behalf 
 of an absent man, and a most meritorious and exemplary 
 officer ; not that it was by any means essential to the de- 
 fence, but simply because it was an act of justice. If the 
 captain is so disgracious now in the eyes of the prosecu- 
 tion so culpable in the eye of the law, why have not our 
 learned adversaries instituted legal proceedings against 
 him, instead of attempting to transfer the burthen of his 
 imputed guilt to the shoulders of the prisoner. The cap- 
 tain's deposition was taken ; he was examined in the 
 office of the attorney for the United States he was 
 within the very jaws of the Royal Tiger, yet those jaws 
 did not close upon him, with all their thirst for blood. 
 Now, however, that his march is o'er the mountain wave, 
 the counsel speak of his escape from justice, and the hor- 
 rible retribution that awaits his return. This is the 
 thunder without the bolt, or the power of Jove to wield 
 it. 
 
 We pass now to other scenes. In the morning of the 
 20th of April, which was ushered in in darkness and in 
 gloom, the two boats separated from each other the cap- 
 tain and eight others directing their course, in the jolly 
 boat, for Newfoundland, and the mate and thirty-three 
 passengers and crew remaining in the long boat. At the 

 
 250 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 time of the separation, which was on Tuesday morning, 
 the captain directed his first officer, who had left the jolly 
 boat for the long boat, to endeavor to steer for the nearest 
 point of land, which was two hundred and fifty miles oif; 
 and th3n having taken a list of those on board of the long 
 boat, he bade them a melancholy adieu. In parting, the 
 mate begged him to take some of the passengers into the 
 jolly boat ; the captain refused it as a matter of impos- 
 sibility ; the mate declared that his boat would sink, or 
 they should have to cast lots ; and the captain, clearly ac- 
 quiescing in that probable necessity, begged that it might 
 be the last resort. 
 
 Shortly after the departure of the jolly boat, the sad 
 series of disasters commenced, which terminates in the 
 lamentable catastrophe in which this trial originated. 
 Nothing before this point of time bears directly upon 
 this question, although there is much in the scenes re- 
 ferred to, calculated to touch* the most callous heart. 
 
 At the time the boats parted company, or shortly after, 
 it was raining heavily the air was very cold, from the 
 proximity of the ice ; and the miserable, half naked pas- 
 sengers were benumbed by exposure and hardships, to 
 which they had been subjected the preceding night. The 
 long boat had leaked from the time she left the ship ; the 
 plug had, in some way, been removed, and another was 
 substituted. The second plug was lost, and a variety of 
 expedients were from time to time resorted to to supply 
 its place, as well as to stop the other leaks. Added to 
 this, the long boat was, in her situation, entirely unman- 
 ageable. The testimony of the mate and captain, which 
 is not contradicted by any of the witnesses, places this 
 beyond the reach of doubt. Parker, the mate, says " I 
 have followed the sea for twenty-one years. I think the 
 long boat was too unmanageable to be saved, from the 
 experience I have had. If there had been no leak, I do 
 not think they would have been able to save themselves." 
 Again, upon the cross-examination " The long boat
 
 HOLMES' CASE. 251 
 
 being.' unmanageable, I thought she would have sunk the 
 first night. By unmanageable, I mean they could not 
 put her head from one point to another she was going 
 round like a tub ; she was like her own mistress they 
 could not keep her head any one way, not even for a 
 minute." 
 
 And Captain Harris is equally clear and explicit upon 
 the subject, when he informs us " That the long boat 
 leaked, that they attempted to bail, but could not make 
 out anything ; they were so thronged in the boat. She 
 would not have supported one half she had in her, had 
 there been a moderate blow, even without a leak. The 
 gunwale was about twelve inches above the surface of 
 the sea." 
 
 Again, speaking on the same subject, the captain sa} T s 
 " I found she was unmanageable, and that it was use- 
 less for me to waste further time with them they could 
 not use the oars they could not steer the boat," &c. 
 
 And further " A very little irregularity in stowage 
 would have capsized the long boat ; a moderate flaw 
 would have swamped her very quickly." 
 
 On Tuesday it rained heavily all day ; the sailors were 
 employed in rowing at times ; the passengers took their 
 turns in bailing, and it is perfectly apparent from the 
 proof, that this course continued, with but little inter- 
 mission or relaxation, until the dreary night closed in. 
 At this time the wind increased, the waves ran high, at 
 times dashing into the boat depositing ice upon the 
 already half frozen passengers and crew ; and at the same 
 time calling for renewed exertion, while impairing the 
 ability to make it. At length, abandoned to despair, the 
 water increasing in the boat, and the peril of death being 
 imminent, and apparently inevitable, a cry of horror is 
 heard from various quarters, exclaiming, "We are sink- 
 ing! We are sinking!" Then it was that the mate 
 who, unmurmuringly, had taken his post in the very 
 throat of death, at the command of the captain, per-
 
 252 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 ceiving that everything was reduced to a state of utter 
 hopelessness, and unable longer to repress his emotions, 
 cried out " Help me God this will not do men, go to 
 work." The witnesses all agree in regard to these ex- 
 pressions of the mate ; some, however, say they were 
 thrice repeated before they were obeyed and finally, the 
 obedience of the crew was the death of sixteen of the 
 passengers ; by which, alone, in all human probability, the 
 remaining seventeen passengers and nine seamen were 
 saved. 
 
 Here let us pause, to ascertain, if we can, what were 
 the impulses, the secret impulses, the direct impulses that 
 led to this deplorable catastrophe. I deny, emphatically, 
 the correctness of the doctrine of the prosecution, that if 
 there be any doubts of the sufficiency of the cause which 
 led to the death, the defendant should be convicted. 
 This inverts the whole current of the philosophy of 
 criminal jurisprudence. Doubts of motive doubts of 
 acts are always doubts of guilt ; and reasonable doubts 
 of guilt must result in acquittal. I am strengthened in 
 this position by the indisputable fact that Holmes, the 
 prisoner, during the whole voyage, was upon the kindest 
 and most harmonious terms with all the passengers ; 
 that he preserved the same friendly relation to them after 
 the loss of the ship ; that he had perilled his life more 
 than once to preserve them ; that he had literally 
 stripped himself of his apparel for their comfort: in 
 short, his desire to save them, seemed to absorb all con- 
 sideration of mere personal or individual safety. In 
 these circumstances, to suppose anything cruel or wanton 
 upon his part, is to run counter to everything that is pos- 
 sible or natural. I infer, therefore, that he supposed the 
 peril to be imminent and instantaneous, or he never 
 would have complied with the orders of the mate and 
 that the mate who gave the order, did it under the im- 
 pression of direct necessity, is too obvious to require or 
 admit of argument.
 
 HOLMES' CASE. 253 
 
 On Tuesday night, I say, about 10 o'clock, the 
 boat filled with water from above and below ; the 
 wind having risen ; the waves ' having increased ; the 
 ice accumulating, and the passengers shrieking with 
 horror at the prospect of drowning; the final, fatal 
 order was given. It is not to be supposed that these 
 hardy sons of the sea were unnecessarily alarmed. That 
 Holmes, particularly, was a brave, resolute and deter- 
 termined seaman, as well as a most humane man, no one 
 will venture to deny : that he had but one supposable 
 object, which was to save such as might be saved, is 
 equally clear. I maintain therefore, that the most favor- 
 able construction is to be placed upon his motives ; and 
 it is justly to be inferred that he acted upon the impres- 
 sion that the danger was imminent, and that death was 
 inevitable to all, except by resorting to those means 
 which he actually adopted. "We are told however, that 
 he is not the judge. I ask, who is the judge? There is 
 a vast deal of difference between judging in a storm, and 
 judging of a representation of a storm; and therefore it 
 was that I said, that in order to a righteous determina- 
 tion of this case, your verdict should be rendered in the 
 midst of perils such as have been described, instead of 
 being pronounced while surrounded by all the securities 
 and sanctions of the law. I agree that if you can conceive 
 of any other inducement than the desire of self-preserva- 
 tion, and that of the majority of the passengers, inducing 
 this act which I defy you to do you may then imagine 
 that that inducement led to the act, and thereby divest 
 the prisoner of his present defence ; but even taking all 
 the statements of the witnesses for the prosecution, highly 
 colored I will not say disclored as they are, and torture 
 them as you may, it is impossible for you to arrive at any 
 other conclusion, than that Holmes was actuated by the 
 kindest and most generous influences ; and certainly I 
 need not say that kindness and generosity are opposed to 
 wantonness and barbarity. I repeat, then, that in these
 
 254 FORENSIC SPEECHES OP DAVID PAUL BROWN. 
 
 circumstances of terror, men are left to their honest de- 
 terminations. They are not to resort to mere imaginary 
 evils as a pretext, nor are they to be supposed to resort 
 to them as a pretext. If they err in their determination, 
 according to the rules adopted by a cold system of reason- 
 ing, their error, as thus detected, is not to be visited upon 
 them as a crime. 
 
 Suppose two men, occupying perfectly friendly relations 
 to each other, should be cast away, and both seize the 
 same plank (to me the favorite illustration), and one 
 should thrust the other off; would it not be monstrous, 
 upon the trial of the alleged offender, that the plank 
 should be brought into court and submitted to some men 
 
 O 
 
 of approved skill, and measured and examined by square, 
 rule and compass its specific gravity ascertained, and the 
 possibility of its sufficiency to sustain two men discussed 
 and decided and upon the basis of such calculation as 
 that, the prisoner should be deprived of his liberty or his 
 life; when, if you had placed the witnesses in his precise 
 situation, and they had been called upon to act upon a 
 sudden emergency, they would have done precisely what 
 he did, and what every principle of natural law abund- 
 antly warrants. It is worse than idle to suppose that in 
 such a critical juncture as this, men are to cast lots or 
 toss up for their lives. In such peril a man makes his 
 own law with his own right arm. 
 
 But, say the learned counsel, had the passengers been 
 permitted to remain until the morning, they might have 
 been saved by the Crescent. I answer, had they remained 
 a single hour, they would have never seen the morning 
 every man, woman and child, would have weltered in the 
 coral caves of the ocean. The approach of the Crescent 
 could not, even in point of fact, have operated to alleviate 
 their fears without prescience, they could have antici- 
 pated no such relief. Men are to act upon the past and 
 the present the future belongs to God alone. 
 
 You are told, however, that the condition of the boat
 
 HOLMES' CASE. 255 
 
 was not hopeless that she was on " the great high road 
 of nations," and that there was every prospect of her being 
 picked up. The gentleman speaks of the great high road 
 of nations over the pathless ocean, as if it were the Chesa- 
 peake and Delaware canal, in which two vessels could 
 scarcely pass abreast. The " President " steamer, sunk 
 probably upon this great high road, leaving no voice to 
 tell her fate. Surrounded, as the boat was, by mountains 
 of ice, no ship would probably ever have reached her, if 
 steering in that direct course. Fate itself seemed to for- 
 bid it nay, no vessel, says the captain, would have ven- 
 tured among the ice, had the position of the boat been 
 known ; as no commander, however philanthropic, would 
 have so far perilled his own hopes in order to redeem the 
 lives of others. The chances of rescue were entirely too 
 remote then, ninety-nine chances against one, say the 
 witnesses, to enter into the calculation of the mate and 
 crew, had their circumstances even been such as to allow 
 them dispassionately to reason upon the subject but as 
 it was, terror had assumed the throne of reason, passion 
 became judgment, and you know the sequel. 
 
 I have now briefly and imperfectly passed over that 
 part of the case upon which your decision must mainly 
 turn ; but before I close, let me direct your attention to 
 another circumstance which casts a reflected light upon 
 the matters already adverted to. I refer to the occur- 
 rence of the next day and this leads me to present to 
 your view another picture in this nautical gallery. 
 
 On Wednesday, the 21st of April, the morning dawns ; 
 yet the sun still shrouds his face amidst shadowy clouds 
 and darkness, from the traces of horror which the past 
 night had left. You may see, gentlemen of the jury, 
 without any extraordinary stretch of fancy, on that awful 
 morning, a small boat, in the centre of the ocean, with a 
 single sailor, apparently engaged in an effort to rig out a 
 sail baring his brow and his breast to the bleak winds 
 that howl around him, with no one to impart encourage-
 
 256 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 ment or aid deserted by earth and frowned upon by 
 Heaven. That man was Holmes, the prisoner at the bar. 
 His mess-mates have sunk exhausted into the bottom of 
 the boat the mate is lost in dismay the passengers are 
 buried in hopelessness and horror 
 
 Silent they sit 
 
 All faculties absorbed by black despair ; 
 The world is banish'd, and the soul is dead 
 To earthly sympathy to earthly care, 
 Brooding alone on its eternal fate, 
 And prostrate in the presence of its God. 
 
 And there amidst this solemn and harrowing scene the 
 defendant stands, toiling and struggling to the last, not 
 for himself, but for those very persons who, having for- 
 gotten their gratitude with their danger, now appear 
 before you to pay for their own life, by depriving their 
 preserver of his. Whether this mode of discharging 
 obligations shall meet with your approval, it will remain 
 for your verdict to decide. 
 
 I have now done. I am perfectly sensible of the power 
 of the learned counsel opposed to me ; and if this case is 
 to be determined by the comparative strength or skill of 
 the advocates, I have much cause for alarm. My gallant 
 friend who opened the conflict, appeared like Apollo, ra- 
 diant in his glory balancing his body, adjusting his bow, 
 and directing his shaft his golden pointed shaft at the 
 very heart of his intended victim. By and by, his col- 
 league, who may be compared to Hercules, will take the 
 field with his club, and exert all his stupendous powers 
 to demolish this defence. Still, armed in the panoply of 
 justice, I entertain no fear, for after all, gentlemen of the 
 jury, what is a giant when wrapped up in a QUILT? 
 Against all these odds therefore I stand firmly by the 
 side of that man, who always stood firmly by others. 
 The destiny the worldly destiny, of the prisoner, is now 
 confided to your hands. Do with him as you would be 
 done by.
 
 HINCHMAN CASE. 
 
 Supreme Court. July Term, 1848. No. 87. 
 MORGAN HINCHMAN v. SAMUEL S. RICHIE et al. 
 [EXTRACT FROM "THE FORTTM."] 
 
 " The case of Morgan Hinchman against sixteen de- 
 fendants persons all of great respectability, and some of 
 them of wealth and influence was tried in the Supreme 
 Court of Pennsylvania, in March, 1849. The case awak- 
 ened great attention ; it commenced on the ninth of March 
 and continued until the seventh of April. 
 
 " Morgan Hinchman was a young man of respectable 
 connections, a member of the Society of Friends, residing 
 with a wife and young family of children, in a neighbor- 
 ing county, apparently prosperous and happy. On the' 
 evening of the tifth of January, 1847, he left his farm to 
 attend the market in Philadelphia. Before his departure 
 he arranged many little domestic affairs with regularity 
 and care ; and when in Philadelphia, after disposing of 
 his produce, attended to some business relating to a loan 
 of money, by a mortgage on his farm. On the morning 
 of the seventh, the transactions occurred which gave rise 
 to the subsequent suit. At the same hour of that morn- 
 ing the hour previously fixed upon by Morgan Hinch- 
 man for concluding the negotiation about the mortgage 
 several of the defendants assembled at the same place, 
 and arrested Morgan Hinchman, after informing him 
 that they were about to take him to the Frankford Luna- 
 tic Asylum. Without repeating the details of the case, 
 it is sufficient to state, that in pursuance of the plans pre- 
 viously laid, and in spite of the resistance of the alleged 
 lunatic, he was carried to the asylum and restrained of 
 his liberty for several months. 
 
 17 (257)
 
 253 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 " It was for a conspiracy, accom pained by the overt act 
 of his imprisonment, that an action for damages was 
 brought ; the parties charged being not only those ac- 
 tively combined in the arrest, but others, by whom it 
 was alleged, a less active, but equally culpable part, was 
 taken in the proceeding against the plaintiff. It is just, 
 to this statement of the case, to remark that the defend- 
 ants, one and all, denied, in every way and form, 
 the charge against them. They alleged that Morgan 
 Hinchman was taken to the asylum at the request of 
 his wife and mother ; upon the certificate of a very com- 
 petent medical adviser ; and that he was at the time of 
 his arrest, and had beeu for a long time previous, a 
 lunatic." 
 
 The trial of this cause took place before Judge Burn- 
 side, one of the judges of the Supreme Court, sitting at 
 Nisi Prius ; and although the sessions of the court fre- 
 quently continued until after eight o'clock p. M., the 
 testimony and speeches of counsel (as has been stated) 
 occupied nearly a month. 
 
 After a very able charge from the judge, the case was 
 given to the jury, who, after being " out " five days, found 
 a verdict in favor of the plaintiff, against Samuel S. Richie, 
 Edward Richie, John Li ppincott, George M. Elkinton, John 
 M. Whitall, John L. Kite, and Elizabeth R. Shoemaker, 
 and assessed the damages at TEN" THOUSAND DOLLARS ; and 
 a verdict in favor of the defendants, Philip Garrett, 
 Joshua H. Worthington, Benjamin H. "Warder, Thomas 
 "Wistar, Jr., William Biddle, John D. Griscom, and Anna 
 W. Hinchman. 
 
 Dr. Evans had been previously acquitted at the close of 
 the plaintiffs evidence. 
 
 The case was removed to the Supreme Court, in bane ; 
 but was subsequently settled, without any action by that 
 tribunal. 
 
 Counsel for the Plaintiff's. 
 
 Messrs. WILLIAM B. REED, SAMUEL H. PERKINS, DAVID 
 PAUL BROWN. 
 
 For the Defendants. 
 
 Messrs. J. WILLIAMS BIDDLE, CHARLES GIBBONS, GEORGE 
 GRISCOM, HENRY J. WILLIAMS.
 
 HINCHMAN CASE. 259 
 
 SPEECH IN HINCHMAN CASE. 
 
 [Delivered on GOOD FRIDAY, 1849.] 
 
 MAY IT PLEASE TOUR HONOR: 
 
 Upon this day, gentlemen of the jury, this HOLT clay, 
 while the great masses of the Christian community are 
 devoutly engaged in a public manifestation of pious grati- 
 tude for the priceless and free sacrifice which redeemed 
 the fallen family of man, from the miseries of eternal 
 death ; it is a melancholy and painful duty, to be com- 
 pelled to force upon your attention, the persecution and 
 oppression the cruelty and barbarity practised, or al- 
 leged to be practised (for I take nothing for granted), by 
 a body of professing Christians, lovers of peace, and 
 followers of a meek and lowly Saviour, against an unof- 
 fending fellow man. 
 
 My learned friend, though professional adversary, has 
 ventured, in the close of his remarks, to appeal to you, 
 and to attempt to enlist your sympathies, in behalf of the 
 defendants in this case, closely connected together as they 
 have been from the first to the last, as a solid phalanx, in 
 an unsparing opposition to Morgan Hinchman. Instead 
 of casting an eye of pity or commiseration upon the 
 helpless condition of the plaintiff upon his destitute 
 and forlorn, degraded and disgraced condition all his 
 humanity seems to be absorbed by a sympathetic regard 
 for those, whom he professionally represents, and who are 
 the actual offenders. 
 
 When Pilate (and, it is an apt illustration upon the
 
 260 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 present occasion) meanly yielded to the clamors of the 
 multitude, and washing his hands in their presence, sur- 
 rendered the Saviour of mankind to an unholy and in- 
 furiate combination, consoling himself by exclaiming, 
 "I am innocent of the wrongs of this just person;" he 
 adopted by anticipation some portion of the argument 
 resorted to by this defence. He only stood by, forsooth, 
 and did nothing! He was innocent of the blood of the 
 accused ! But let me tell you now, and it will be a sub- 
 ject for elaborate descant hereafter let me fell you now, 
 that that man, however elevated or respectable, who 
 stands by patiently and acquiesces in a wrong that is 
 about to be, or has been committed; imparts to the 
 wrong-doer the aid and support of his presence, and 
 thereby participates in- the offence,. Although, like 
 Pilate, he may console himself with the operations of 
 washing off external guilt ; he shares in that evil, shares 
 in that crime, which he neither endeavored to prevent, 
 nor was disposed to resist or redress. That is my doc- 
 trine, and we shall soon see how it will abide the test, 
 when I come to apply it in requisite connection with the 
 different portions of this case, in which that point of in- 
 quiry is involved. 
 
 May it please your honor, I never had more occasion 
 to entertain confidence in a judicial officer than I have 
 now. I never felt more distinctly or more deeply the 
 necessity for entire reliance upon the integrity of a judge. 
 I think during the progress of this case, however your 
 honor's mind may have wavered as it is proper it 
 should do in relation to certain legal points ; yet I have 
 not observed, and I am certain in relation to the dis- 
 charge of your duties I never shall observe, the slightest 
 vacillation or unsteadiness, in regard to the immutable 
 principles of justice. 
 
 It will be my duty, so far as it may be within my 
 power, to relieve you of any doubts hitherto entertained ; 
 and if I do not settle beyond cavil or question the entire
 
 HINCHMAN CASE. 261 
 
 fallacy of the whole doctrine of the defendants' counsel ; 
 and show that at most it is a mere castle in the air, 
 resting upon no other foundation than fancy, or error ; 
 then I will submit as a philosopher ought to do, and 
 calmly encounter the consequence. 
 
 Gentlemen of the jury, the extraordinary and unex- 
 pected remarks of my learned friend, have forced me 
 somewhat from the order of my proposed argument, but 
 that's not much I can readily return and pursue it. 
 
 I am not, ; allow me to say and perhaps it may be some- 
 what gratifying to you to learn I am not, may it please 
 your honor, as I presume you know, one of that class of 
 advocates, though I speak in no disparagement of others, 
 who seem to conceive the length and the strength of a 
 speech to be synonymous. I shall therefore, if I have 
 measured myself rightly, occupy comparatively but a 
 short time in discharging the duties that have fallen to 
 my allotment. If my argument be to the purpose if it 
 be efficient, with relation to the nature and results of this 
 case it cannot be too short ; and if it be not appropriate 
 to the cause, and calculated to aid you in your delibera- 
 tions, and secure your arrival at just results, it must cer- 
 tainly be too long. 
 
 Now, gentlemen, to set out deliberately and composedly 
 upon our journey, in order to proceed regularly through 
 its progress, I take leave simply to make one or two 
 additional observations. My learned friends and col- 
 leagues have already prepared the coloring, and sketched 
 with a master hand the different figures in this sad pic- 
 ture, and it only remains for me [and in that I have been 
 somewhat assisted by the last counsel who addressed you 
 for the defendants] to group those figures together ; to 
 impart to them the benefit of light and shade, and leave 
 it to your verdict to complete the work, and then submit 
 it to your honor as the judge and a ripe and good one 
 to ratify and approve that which shall have been done. 
 
 This, as my learned friend has justly told you, is a most
 
 262 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 important case. Not as you will perceive at a single 
 glance, with reference to the stupendous magnitude of 
 the pecuniary amount involved ; not that it emhraces 
 any considerations directly affecting human life ; but be- 
 cause it is unparalleled by any proceeding recorded in the 
 annals of American jurisprudence ; and because it com- 
 prehends those momentous principles without the sanc- 
 tity, protection and vindication of which even life itself 
 would be a burthen and the world a waste. Let me con- 
 jure you to think well of this don't suppose that the 
 question here is merely whether forty thousand dollars 
 are to pass from the pockets and coffers of the wealthy and 
 respectable into the pockets and coffers of the poor and 
 destitute. I scorn to put this case on any such footing. 
 I am not here as a pauper to BEG ; and if I were, the last 
 men to whom I would apply to relieve the wants or the 
 necessities of the plaintiff, would be his heartless persecu- 
 tors and oppressors. 
 
 I am here for justice. Answer shall I have it ? That 
 is the question. I don't come to steal it. I don't intend, 
 borrowing an example from the defendants, to take it by 
 force. I don't come with my corporal's guard or armed 
 myrmidons, for the purpose of wresting it from you. I 
 come here to demand it ; here in this court of justice, and 
 I present to you the basis upon which I build my claims. 
 My learned friend has said, and whatever he says, he says 
 well and skilfully too that if you give a verdict for the 
 plaintiff", you deeply affect these defendants in the estima- 
 tion of the community. These respectable men ! I dare 
 say you will suppose it rather strange to call them so in 
 connection with this case ; but whether they are respect- 
 able, powerful, wealthy, or otherwise, matters nothing to 
 me and should matter nothing to you. Those are not 
 the vital considerations here. I don't ask them to share 
 their wealth unless we are entitled to it as an idemnity 
 for our wrongs. I invoke no prejudices. I don't desire 
 to oppress them ; on the contrary, the whole philosophy
 
 HINCHMAN CASE. 263 
 
 of this case is reared upon a very different doctrine. If 
 instead of a legitimate defence, they talk of respecta- 
 bility, I give my answer in the words of Samuel Beans, 
 the venerable individual who has been so much censured 
 here, because he venturec^P encounter this self-created 
 autocracy, if I may call it so,- I answer them in his sim- 
 ple though powerful language ; " Your characters must 
 be very good, if they will resist the flood and current of 
 proof in regard to this transaction, which sets against 
 and overwhelms them." Why, these sage grave men. 
 attempt to make character a mere marketable com- 
 modity ; not that priceless jewel that my learned friend 
 has spoken of. It" is to be a mere shield and protection 
 for iniquity and outrage; for that is what I understand 
 to be the practical end and application of the argument. 
 I agree that character is everything. I agree that the 
 human frame is but a tawdry, empty, worthless casket, 
 when that jewel's gone. But where shall this doctrine 
 land us? That's' the point. Had Lord Bacon no charac- 
 ter ? " The wisest, brightest, meanest of mankind ? " 
 Had he no intellectual, no moral, no national, no univer- 
 sal character? broad and expansive as nature itself 
 yet all this did not save him, when he had committed 
 an atrocious wrong, and sullied the pure ermine the 
 judicial and national glory of his country. Was not 
 Dr. Dodd a man of high character ? Yet all his character 
 could not save him from the gallows. Nay, if you will 
 pardon me, it is pertinent to the time, and I introduce it 
 with becoming reverence for its associations was not 
 Judas, one of the disciples, a man of character, until he 
 traitorously betrayed his master with a kiss and basely 
 sold the Redeemer of the world for " thirty pieces." 
 
 Character, so far from being a defence, so far from 
 being matter of vindication or protection ; where the tes- 
 timony is calculated to enforce the claims of the plaintiff, 
 is matter of aggravation, disgrace, and confusion. What 
 is there while I admit and maintain the elevated position
 
 264 FORENSIC SPEECHES OP DAVID PAUL BROWN. 
 
 in which character places man what is there, I say, that 
 degrades him, even below the lowest deep of odium and 
 contempt, more than its willing and wanton sacrifice? 
 Why, was not Lucifer surnamed the Morning Star be- 
 fore his fall, one of the brightest spirits among the angelic 
 hosts ? He that then stood the highest and the purest ; 
 for that plain reason now stands the lowest and the black- 
 est. I wish this subject of character distinctly under- 
 stood. It is a sort of mawkish sentimentality too often 
 introduced, to lend grace to a desperate defence. It is 
 like a moon-beam on a thunder cloud, making the gloom 
 more dreadful. I repeat it, I am disposed to pay as 
 warm a tribute to the regard in which reputation is held, 
 as any man. But I have no notion, no idea, sir, that 
 gentlemen like these, or any other persons, should imagine 
 that there is any personal hostility on my part towards 
 them, because I take leave to speak of them as they de- 
 serve. 
 
 When the principles of this case are fully understood 
 you will find little or no trouble in disposing of all its de- 
 tails; and, therefore, I shall address myself to principles 
 rather than details. It is not necessary for me to apply 
 chemical process, or a microscope, to analyze or detect 
 every freckle in a man's face, in order to identity him. 
 So, if I show you the principles that embrace the diversi- 
 fied facts, that have been brought out during the progress 
 of this laborious and protracted investigation, and which 
 bear essentially upon this case ; and show you, also, that 
 the grounds that we occupy, and profess-to stand upon, 
 are sound and unshaken ; and that our learned friends in 
 their attempted assaults upon us, labor under a delusion 
 to borrow a phrase from Horace, through the quotation 
 of Mr. Gibbons " a dear delusion of a raptured mind ;" 
 you will pardon me, when I say that will be abundantly 
 sufficient. 
 
 Really, these men must consider that a very slight 
 matter is a basis for issuing a commission of lunacy, if
 
 HINCHMAN CASE. 235 
 
 their doctrine be correct ; and, if the commission be 
 irregularly issued, I suppose it is perfect indemnity , ac- 
 cording to their creed, that comfortable quarters in a 
 mad-house are supplied for their victim. 
 
 Let us turn to the beautiful picture, prefixed to the 
 accompanying history written by Dr. Evans upon the 
 moderate compensation of six hundred dollars a year, for 
 one or two flying visits a week. That history has been 
 read here by the counsel, almost in extenso; and certainly 
 " ad nauseam." He tells you that it is a perfect paradise; 
 don't let him ensnare you with "mere springes to catch 
 wood-cock." Would you not now suppose from this 
 poetic, and romantic, and rapturous description of the 
 Frankford Asylum, that it was a perfect Arcadia? See, 
 how well it appears in the engraving, and in print! Only 
 behold the terraces, the lawn, the gravel walks, the flower 
 gardens, roses, deer parks, and everything of the most 
 attractive and alluring character! And all these luxuri- 
 ous indulgences, says our learned friend, are supervised 
 and secured without even the equivalent of a salary. 
 Amazing Philanthropy ! How is this ! It seems very 
 wonderful ! That wonder disappears when you are told 
 that it is not the fact. Philip Garret, l)r. Worthington, 
 Dr. Evans, and a whole retinue of keepers are all abun-' 
 dantly paid. I don't mention this as a matter of com- 
 plaint ; but in refutation of their pretensions, which have 
 been introduced as a part of the defence. And I bee 
 
 * o 
 
 leave to say, with all respect and deference to the learned 
 counsel, that it was an abuse of the patience and time of 
 the court and jury, to press so elaborately upon us, the 
 very equivocal and somewhat meretricious attractions of 
 a private mad-house. I wish when you can be brought to 
 think yourselves insane (though, according to the doctor's 
 notions, you will never be sane, until then), you would take 
 up your lodgings in this most magnificent boarding house 
 making, however, the special provision that you shall 
 have the benefit of the habeas corpus act, in case it so
 
 266 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 turns out that you should be awakened from your slum- 
 bers every hour of the night, or nearly beaten to death 
 by some of its civil and courteous inmates. Why, gentle- 
 men of the jury, this outward parade of comfort is only 
 calculated to sharpen the agony of the sufferer. Do you 
 can you, suppose, that the free bird, that has been accus- 
 tomed to scale the blue vault of heaven, when entrapped 
 and consigned to a costly cage, is consoled by the consid- 
 eration, if I may ascribe consideration to a bird rather 
 let me say its instinctive emotional feelings ? (to borrow 
 something from the doctors.) Do you suppose, I say, it 
 is comforted by the fact of the cage being of gold ; or, 
 will it not rather beat its fluttering little life out against 
 those golden bars, that shut it in from liberty ? It is use- 
 less, therefore nay, worse than useless to resort to these 
 empty lures. I don't care if this asylum were made of 
 " one entire and perfect chrysolite." What does it come 
 to? What is all that to the famished soul, the degraded 
 
 ' O 
 
 and debased spirit, the humiliating sense of a two-fold 
 bondage bondage of the body, attended with imputed 
 bondage at least, of the immortal mind. 
 
 With these views thus generally expressed while, as 
 I have said, I shall not wantonly trespass on your pa- 
 tience, I shall still devote so much time to the proper ex- 
 amination of the essentials of the subject before us, as 
 may be commensurate with its importance, and a becom- 
 ing respect to this tribunal. It is my duty to discuss it 
 fairly, though freely and fearlessly ; and it will then be 1 
 your duty to determine upon its merits. 
 
 I had spoken, gentlemen of the jury, of the general 
 outlines of this case ; and I am sure you will not deem it 
 improper that I should return, for a moment, from a 
 slight wandering into which I have been seduced by the 
 example of others to its individual and relative conse- 
 quences. It is important to the plaintiff' as an unau- 
 thorized and cruel abridgement of his liberty liberty 
 without which " life grows insipid and has lost its
 
 HINCHMAN CASE. 267 
 
 relish ;" it is important as it bears upon the bodily 
 and mental sufferings to which he was subjected the 
 exposure and disgrace to which he was causelessly con- 
 demned ; it is important as it regards the arbitrary as- 
 sumption and waste of his little property the result of 
 the honest earnings of a life of toil ; but it is infinitely 
 more important in its relative Affects sundering him 
 from the affections and consolations of a beloved wife, to 
 whom my learned friends wish to transfer all responsi- 
 bility in this case to the wile, and to the mother! a 
 fine specimen of professional gallantry ! in order that 
 they might fight under a woman's 'kerchief, and convert 
 it into a shield. I will show you that this cannot avail 
 them. I wish you to stand upon your guard in relation 
 to this ingenious suggestion ; and not to suppose, t.hat it 
 originates in anything else than the anxious desire of 
 these defendants to escape just retribution. There sit, 
 sir, the master spirits, who, while they stood behind the 
 scenes and governed others at their will, never, from 
 first to last, have been able to show that the wife of the 
 plaintiff voluntarily threw off her allegiance to her hus- 
 band. And if they had been able to show it, what can 
 it avail : how does it diminish the horrors of this scene, 
 that the plaintiff, like the wounded bird, should discover 
 upon the shaft by which he perished, a feather from his 
 own wing. This slander upon the wife is an additional 
 aggravation of the outrage upon the husband ; and should 
 be so considered and punished by you. This is a sad 
 though an awful mode of getting rid of a prosecution for 
 a conspiracy. The wife of course cannot be questioned 
 she cannot be a witness : they have nothing, therefore, 
 to do but to throw out such suggestions against a broken- 
 hearted woman broken-hearted by them in order to 
 escape responsibility for the ruin they have caused. For 
 I aver, that all the difficulties between this husband and 
 wife, have been produced by them, or some of them. I 
 charge upon them, that it was by their injudicious inter-
 
 268 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 meddling, or interfering between two hearts, that Heaven 
 is presumed to have formed for each other, that a para- 
 dise of conjugal love and affection was converted into a 
 desert. I wish them to bear in mind, if they can derive 
 no other benefit from these admonitions, the salutary 
 doctrine, that those whom God unites, man should never 
 attempt to sunder. Why, sir ! I profess to have some 
 pretty extensive knowledge in respect to matters of this 
 kind, though, thank Heaven, no experience ; and 1 take 
 leave to say, that in *iine instances out of ten of family 
 discord, the disunion produced between husband and 
 wife, is attributable to some cogging, cozening knave, 
 who, with or without other motives than the mere dispo- 
 sition to do evil and render others as unhappy as himself, 
 spreads a ruin round : or perhaps, it may be sometimes 
 properly ascribed to some gossipping old women, who 
 exercise the prescriptive right of sacrificing human hap- 
 piness by the decrees of the Areopagus of the tea-table. 
 They arise in this case irom some such causes. And 
 their authors must be gratified in having succeeded in 
 dividing the interests and joys of husband and wife, who, 
 in the pithy language of the law, have " two bodies, 
 though but one mind." Only sever that mind the im- 
 mortal portion of human beings what confusion, deso- 
 lation, distress, and destruction, must inevitably be 
 produced ? All this, shocking as it may appear, is to 
 be traced to the defendants in this case, and their con- 
 federates. 
 
 You will find, all these deplorable consequences are 
 really attributable to these defendants. "Why what is 
 the meaning of Samuel Richie's having been out to the 
 farm a year or two before which he himself expressly 
 .admits? Has your honor lost sight of that? Richie 
 and others have pursued this unhappy plaintiff, like a 
 vulture who never loses the scent of blood. What does 
 he find when he reaches the farm ? He finds Morgan as 
 eane as he, or any man in this community. He finds him
 
 HINCHMAN CASE. 269 
 
 deeply seated in the respect and affections of a large sur- 
 rounding neighborhood. And he finds, also, that that 
 was neither the time nor the place to attempt an aggres- 
 sion on the plaintiff 5 s rights. He therefore returns to the 
 city, and waits for a more favorable opportunity to renew 
 his attempt. Opportunities will always be afforded, 
 where there is a disposition to embrace them, however 
 they present themselves. 
 
 I say, then, that relatively the effects upon the plaintiff 
 have been ruinous in sundering him from the affections 
 and consolations of his wife ; and that these effects are 
 attributable to these defendants. His wife, has been really, 
 bodily, taken from him ; and my respectable friend, Mr. 
 Griscom, professionally imbued with his client, seems ac- 
 tually astonished that the husband, to use the counsel's 
 own language, " should require his wife for his own pur- 
 poses !" Heaven save the mark ! whose purposes should 
 he want her for? Is it not wonderful that a man 
 should be taunted in a court of justice, for desiring his 
 own wife? And was it extraordinary that he should not 
 consent to live with a sister-in-law subject to her direc- 
 tion and control, and liable to be whisked off, at any con- 
 venient season, to the asylum again? The plaintiff had 
 never used his wife for any other than a kind and a noble 
 purpose; and therefore he was entitled to her confidence, 
 and I have no doubt, really enjoyed it ; for I maintain 
 that you cannot find in any portion of this case, from 
 unquestionable evidence, that she ever complained or 
 murmured against him. 
 
 But we are referred to this flighty matter of his at- 
 tempting to hang himself, as related by old Mrs. Clark ; 
 who admitted herself to be insane once or twice during 
 
 o 
 
 her deposition, and who proved herself to be insane in 
 every part of it ; and who seemed to consider the magis- 
 trate insane, for correctly reporting her testimony. 
 
 "We find that when Mrs. Hinchman was spoken to, and 
 the various slanders against her husband repeated, she
 
 270 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 promptly and utterly denies them, and avers that they 
 are without the shadow of a foundation. And this, too, 
 in the presence of her sister, one of the defendants ; and 
 yet, in spite of this denial, Samuel Richie, in speaking 
 to Samuel Beans, repeats them again. 
 
 [The opposite counsel here remarked, that the story of 
 the alleged hanging was not alluded to by Mrs. Hinch- 
 mari.] I did not say that it was expressly alluded to ; but 
 I do say that so far as the slanders related to misconduct 
 or personal violence, she promptly and with a womanly 
 spirit utterly denied them. 
 
 I have already said that the course of these defendants 
 was obstructive to the happiness of the wife, as well as 
 the husband ; but it is still more to be deplored in its 
 effects in separating him from the innocent embraces of 
 his prattling children one of whom, at least, he was 
 doomed never again to see. Indeed no humane man can 
 listen to the simple history of the wrongs he has sus- 
 tained, the penalties he has endured, and the sufferings 
 he has borne, without being convinced of the total inade- 
 quacy of language to embellish or exaggerate it. The 
 plain statement presented to you in the most undisguised, 
 and unadorned shape for truth like beauty when least 
 adorned, is most adorned would be sufficient to bring 
 you, if my sympathies instruct me rightly, to a conclu- 
 sion which would sweep away at once all the defendants' 
 testimony so transitory in point of character, and so 
 unsubstantial in point of worth. 
 
 Allow me in the next place, as a matter of vindication 
 of what both my learned friends, in their nice sense of 
 morality, have considered as an anomaly in Ethics to 
 refer to the remark of my friend and colleague that " the 
 effect of insanity in this world's view, absolutely and re- 
 latively, was as much to be deplored as even that of 
 crime itself." You must have observed, gentlemen of the 
 jury, that Mr. Gibbons occupied a considerable time upon 
 this subject. It is no doubt, convenient to the defend-
 
 HINCHMAN CASE. 271 
 
 ants' cause, to throw the deformities which it exhibits 
 into the shade, by presenting some collateral subjects on 
 which the mind may more agreeably rest. Both of my 
 opponents tell you, that the remarks of my colleague are 
 utterly incomprehensible, if not reprehensible, in implying 
 the doctrine, that the existence of crime in a parent was 
 not more to be deprecated than imputed insanity. Now, 
 may it please your honor, you seemed rather to adopt 
 the views of the opposite counsel; but if you will hear 
 me for a moment I will satisfy you of their entire fallacy. 
 
 My learned friend told you only a melancholy truth : 
 for although, when your honor said there is no crimi- 
 nality in insanity you spoke only the sentiment of your 
 own excellent heart let us apply the head to it. There 
 is no criminality in insanity, it is true, and there ought to 
 be no disgrace ; but the question is not what ought to be, 
 but what there z's, in this unkind, unsympathetic, and slan- 
 derous world. The mere absence of crime is no protec- 
 tion against imputed insanity ; which may be called the 
 curse of the burning brow the curse of the sleepless eye 
 " to have no creature love you living, nor your mem- 
 ory when dead." 
 
 Gentlemen of the jury What man among you can 
 look at the plaintiff and behold his destitute and forlorn 
 condition, and listen to the simple story of his sufferings, 
 caused by the acts of these men, and can safely return 
 to his avocations till he performs a solemn lustration 
 through the instrumentality of their hoarded gains? 
 What has been his portion ? Shrunk from like a pesti- 
 lence. How has he been treated by these pious defend- 
 ants, though certified to be sane ? Who has taken him 
 by the hand ? None but his " paternal relatives " I bor- 
 row the word. What has been the effect of the course 
 pursued towards him by these defendants? The effect 
 has been to defame, to destroy him. I agree there is no 
 crime in insanity ; but there is obloquy, worse than crime. 
 For although a son may not wash white the crimson gar-
 
 272 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 ments of a father, yet he is not compelled to wear them ; 
 and he may at least preserve his own unspotted and un- 
 stained. 
 
 But in such a case as this, a case of alleged insanity, 
 do you forget you poison the very fountain of a man's 
 blood nay, you corrupt the blood of all united with 
 him ; his children and his children's children, have that 
 for an assured inheritance! Speak not tome in regard 
 to this being no disgrace. They all derive it from him, 
 though it should be their only legacy. He does not, 
 Saturn-like, devour his own offspring; but he desecrates 
 them, and deprives them of all honorable and reputable 
 association. I speak to experience. Why, has not your 
 honor adverted to the fact, that although our learned 
 opponents deny the doctrine of my colleagues ; they prac- 
 tically adopt it, while they maintain its fallacy. Have 
 not the counsel even inquired, upon this trial, in the 
 cross examination of our witnesses, whether there was 
 not insanity among the ancestry or relatives of the plain- 
 tiff? [Defendants' counsel here interrupt and assert 
 the question was from the jury.] Mr. Brown replies. 
 "Well it was pursued and followed up by the counsel. If 
 it came from the jury, so much the better; they have 
 practically adopted my doctrines before they were men- 
 tioned. So may it also be in after days with his helpless 
 and innocent children and his children's children and 
 his name shall be quoted as a living and hereditary curse 
 a curse that more than kills down to the last syllable 
 of time. 
 
 I speak of this, and I speak of it emphatically, for it 
 is like the iron that enters the soul like the worm that 
 never dies. 
 
 Interrupt me gentlemen I shall be happy to answer 
 any suggestion it throws me into no confusion. I will 
 be happy to hear any intimation that may relieve our 
 "friends " from their uncomfortable position ; and I wish 
 to contribute to the benefit of these defendants them-
 
 HINCHMAN CASE. 273 
 
 selves, by teaching them a salutary lesson of future for- 
 bearance. Is further proof required ? Does not Edward 
 Richie mark me and refer to your notes if necessary 
 Does not Edward, in a conversation in relation to putting 
 property in trust with the plaintiff's " paternal relative" 
 I thank you for teaching me that word give as a rea- 
 son for the plaintiff's executing a deed of trust or for 
 his permitting L. Mifflin, whom they had caused to be 
 created a trustee of his person and estate, to remain in 
 control of matters that Morgan Hinchman would hence- 
 forth be suspected and mistrusted, and thereby rendered 
 virtually incompetent to transact his own business. That 
 must not be lost sight of. Does he not give as a reason, 
 the very argument that his counsel have condemned ? 
 Does he not say, when the plaintiff comes into the world 
 nobody will trust in him will confide in him? He will 
 be a mere object of scorn and reproach. But his friends 
 will be able to manage his property, take care of his wife 
 and children, and do all for him. Do you remember that? 
 
 " They pluck out his beard then throw it in his face." 
 Extraordinary sagacity admirable charity unparal- 
 leled friendship ! ! 
 
 Again, my learned antagonist, denying my colleague's 
 doctrine, still tells you : " after the decision of Dr. Kite 
 and committee the plaintiff no longer walks the streets 
 untainted." Will that do? That comes from the very 
 counsel. "Well what has that to do with the argument ? 
 their own report ? Does that justify themselves in tramp- 
 ling him into his original earth? That's a hard doc- 
 trine! That's a monstrous doctrine ! May it please your 
 honor, it is a doctrine that you will never sanction. It's 
 a doctrine this jury will never be inclined to approve. 
 Tainted how ? Why, by the opprobrium of insanity. 
 Thus you perceive while they deny the position assumed 
 by my colleague, they essentially adopt it, as their excuse, 
 for exacting from an alleged lunatic a deed of trust. I am 
 
 amazed ! Brought up and educated among them know? 
 
 18
 
 1274 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 ing as I supposed much about them it seems to me that 
 this is a strange state of things. I am not speaking, let 
 it be understood, of the whole body now ; but they talk of 
 the Pope why the Pope's a fool to a Quaker overseer! 
 Does your honor know how the vote is taken in matters 
 connected with Friends' Discipline ? It was indicated in 
 the progress of this cause: There are, say 150 persons 
 present at a meeting 147 vote one way, the three over- 
 seers vote the other way the clerk has nothing to do but 
 put down, that the weight of the meeting is against the 
 majority a perfect autocracy, if it was not for its num- 
 ber it is a divided though reserved power possessing 
 great and illimitable authority. But your honor remem- 
 bers they did give him a certificate of good standing, 
 recommending him to their unsuspecting brethren of 
 Bucks County whom you have seen here as witnesses 
 on his behalf so you see it was the weight of one meet- 
 ing, against the weight of another meeting. 
 
 With your permission, I will now endeavor (having 
 vindicated those united with me professionally) to pre- 
 sent to you, under a hasty but orderly argument, some of 
 the characteristic and controlling principles and facts in- 
 volved in the consideration of this case. 
 
 Before I proceed to discuss the question of sanity in its 
 application to the present case, it is necessary that we 
 should understand rather better than the doctors appear 
 to do, some of those metaphysical principles, not to say 
 refinements, which are most intimately connected with 
 the immediate subject of our inquiries. Now I do not 
 profess to be more than a mere purveyor of secondary 
 supplies to your honor ; but nevertheless, I will give the 
 result in fifteen minutes of what a personal examination 
 in detail, would occupy as many months. 
 
 It is unnecessary to remind the court nevertheless it is 
 not unworthy of your regard that " man," as the Bible 
 truly and divinely tells us, " is fearfully and wonderfully 
 made." He is composed of qualities somewhat opposite
 
 HINCHMAN CASE. 275 
 
 nay, directly so, if you please. He consists of different 
 natures, marvellously mixed. In his best condition with 
 a sound mind every way considered, in a sound body, 
 every way considered a sound mind in regard to moral 
 influences, and in regard to its intellectual power and a 
 solid, substantial, and vigorous body man is very little 
 short of an angel. If the opposite exist in his constitu- 
 tion, he is very little short of a demon. 
 
 MIND, as I understand it, and as I took leave to say in 
 the course of my examination of Dr. Evans, in reply to 
 his question (when he turned cross-examiner, and I 
 turned witness) MIND, is a term applied to the aggregate 
 of man's intellectual mental powers and faculties. When 
 we speak of the body, we speak of the aggregate of his 
 physical functions, organs, and faculties. And it is, 
 though I cannot dwell upon it, undoubtedly a most in- 
 teresting portion of this discussion. It is a subject, per- 
 haps, in reference to which there is more anxiety than is 
 occasioned by any other in the entire scope of what may 
 be called metaphysics. Mind is sometimes confounded 
 with the soul ; but, sir, it is not the soul. Let us dis- 
 abuse ourselves on these matters. Mind is not the soul. 
 It is one of the qualities or attributes or constituents of the 
 soul. It belongs to it, it is of it. It no longer, or no further, 
 belongs to the body, than as it employs the body as a me- 
 dium of communication with external things in this 
 nether world otherwise our virtues or vices would not, 
 to any extent, depend upon our intelligence. The mind's 
 own direct communication is with its great Creator. The 
 mind is never diseased ; and here I differ from Dr. Wood, 
 and I trust it is the last occasion that I shall have for a 
 difference with a physician in that respect. A physician 
 knows nothing more about the mind, except through the 
 medium of the body, than he does about the moon. But, 
 nevertheless, in the line of his duty like a lawyer it is 
 scarcely possible for him to have intercourse with men in 
 their various and different relations, without forming
 
 276 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 some conclusions on the subject. Yet Dr. Wood tells 
 you that the mind, he thinks (though he does not know), 
 can be diseased, and the body be sound. May it please 
 your honor, that can never be. The mind is a ray or 
 emanation of the Deity himself. It is His miniature re- 
 semblance, impressed on man ! " Tis the Divinity which 
 stirs within us." If the mind could be diseased, it fol- 
 lows, of course, it could die ; and what then becomes of 
 the sublime doctrine of the immortality of the soul? In- 
 fidelity and the notion of total annihilation must take its 
 place. Nay, further, if the mind can be diseased, even 
 angels may go mad. This doctrine, impious as the 
 thought may be, does not stop short of the derangement 
 of the Sovereign Ruler of the Universe ! Omnipotence 
 himself could not escape ; for He created man in his own 
 image, and imparted to the creature a ray of his own 
 mind. He is the only perfect mind. If the mind the 
 immortal part of man can be affected with insanity ; in- 
 sanity shall spread undivided, and extend through the 
 whole celestial system and Heaven itself might be con- 
 verted into a lunatic asylum. 
 
 The soul, of which I have said the mind is a constitu- 
 ent, is the immortal principle which is connected for a 
 time with the material world, by means of our physical 
 organization. We can have, sir, no knowledge of the mind 
 or soul, of ourselves ; I mean of its source or origin tor 
 how can finite measure infinite : You might as well 
 attempt to measure the ocean with a thimble. Our reason 
 cannot comprehend it: it can only be conceived of 
 through revelation and faith. The only perfect mind, as 
 lias been said, is God himself: that great Mind, the source 
 and support of all. "To see ourselves," in the language 
 of Lord Bacon and this should be written in characters 
 of gold ; " we must not look up ; we must look down." 
 The mind is like the eye, which sees not itself, but by 
 reflection by its action on external objects ; by its power 
 of receiving impressions through the physical faculties.
 
 HINCHMAN CASE. 277 
 
 There is, sir and it is very strange, passing strange 
 there is a class of materialists who have no notion but 
 that the pineal gland which is in the centre of the struc- 
 ture of the brain, of the form of a pine apple, and about the 
 size of a pea inasmuch as it is a solitary organ or gland, 
 and all the other organs of the brain are coupled as all the 
 senses are ; that, therefore, I say, having as far as they 
 can discover, with all their ingenuity, no obvious con- 
 nection or communication with the rest is the peculiar 
 abode or tenement of the soul. How preposterous! 
 When once we get among these scientific enthusiasts, they 
 play hocus pocus with natural simplicity. Though Shak- 
 speare says " the times have been, that, when the brains 
 were out, the man would die :" yet since his time, science 
 has discovered that a great part of the brain may be re- 
 moved, and even the pineal gland itself, yet the mind or 
 soul remain perfect ! Certainly that goes to show that it 
 is not destroyed by mere physical influences alone. The 
 brain, it is true, is the organ of sensation ; the channel of 
 communication between the physical and intellectual 
 powers of man. But the brain, though the organ of sen- 
 sation, is in itself perishable, and insensible. Its wounds 
 are attended with no pain ; and yet the sensibilities to 
 pain in any other part of the system depends upon the 
 brain itself. Only sever the nerve which leads to it, from 
 the injured part, and all consciousness of suffering is lost. 
 Remove the brain, or a large portion of it, the creature 
 may still live, the soul still exist ; but the mind is unable 
 to act upon external objects, as the physical medium of 
 communication is gone. In short, I sum up this doctrine 
 by saying that all minds, as minds and this is consola- 
 tory, sir all minds originally, are in their capacity alike. 
 The Hottentot, or the idiot, has as much mind as Bacon, 
 or Newton, or Milton, or Shakspeare or even Dr. Wood, 
 or Dr. Evans. But your honor perceives what I am coin- 
 ing at ; they have not the same physical susceptibilities ; 
 the warder is asleep at the portal of the castle, and makes
 
 278 FORENSIC SPEECHES OP DAVID PAUL BROWN. 
 
 no announcement to the immortal part of man, of the 
 approach of friend or foe. The mind has no sentinel, no 
 outposts, no communication with the external world, from 
 which instruction may be derived as far as regards the 
 temporal concerns of life. It is like, in short what is it 
 like? It is like (though it is somewhat degrading to be 
 sure), like Morgan Hinchman within the melancholy walls 
 of the Frankford Mad house. It cannot communicate 
 with anything outside ; nothing outside can communicate 
 with it. It is locked up within its cell in Tartarian dark- 
 ness ; it is not susceptible of instruction ; it is not suscep- 
 tible of the heavenly light of liberty ; it is not sensible of 
 anything but the vacuity of its own solitary immortality. 
 To give a simple illustration of the perversion of thought, 
 by diseased physical functions, I can refer to a case which 
 your honor has been familiar with a remarkable in- 
 stance. A man who has had a paralysis, will either not 
 know men with whom he has been familiar, or will call 
 men by wrong names ; say yes, when he means, no ; as was 
 tbe case with a very learned and estimable friend of 
 yours, who when he meant to affirm anything, said " no ;" 
 and when he would deny a thing, said "yes." Do you 
 suppose his mind was changed ? Not at all ; the func- 
 tions or faculties that joined him with external matter 
 were destroyed or perverted. [Judge Burnside remarks, 
 I made his will for him, and a very good will it was. 
 Mr. Brown replies, he was a man, sir, not only good in 
 WILL, but in DEED ; it is well he did not fall into the 
 hands of the defendants.] In the case of persons affected 
 with paralysis, the functions of the body, instead of fur- 
 nishing the facilities for intercourse between the soul and 
 this external world, are perverted, obtunded, or destroyed ; 
 "and the state of man, like to a little kingdom, suffers 
 then the nature of an insurrection." Not that those 
 persons have lost their mind, but that their mind is mis- 
 represented by the imperfect or diseased, organs of the 
 body ; which communicate false impressions, or convey
 
 HINCHMAN CASE. 279 
 
 impressions falsely. The communication with the gov- 
 erning principle being lost or perverted, every function or 
 faculty runs into licentiousness and confusion ; and all the 
 harmonies of the mental, moral, and physical structure 
 become, 
 
 " Like sweet bells jangled 
 Out of tune, and harsh " 
 
 But I pass on. I have a word to say as to moral insanity. 
 It is a new theory who understands it emotional in- 
 sanity ! Has not your honor been astonished by this doc- 
 trine ? Why it is like some of the French dancing ; it 
 is like what Addison calls a " regular confusion ;" it is 
 like the polka ; it is like all the frippery, sir, of the 
 French schools though I am an admirer of them full 
 of phantastic inventions ! They are full of jimcrackery 
 moral insanity! Our friends, are plain citizens, grave 
 men they ought to look before they leap, or they will 
 fall into mazes, from which even Ariadne's clue could 
 never extricate them. Why it's neither fish, flesh, nor 
 red herring ! but something among them all ! I will tell 
 you what moral insanity is it is that corruption of the 
 moral faculties which is the result of long continued 
 crime, becoming, by habit, too strong for rational or con- 
 scientious control. That's what it is ; and that is not a 
 matter which puts a man in the mad-house, it puts him 
 in the penitentiary. I believe Dr. Wood said that moral 
 insanity often exists without intellectual and without 
 the body being diseased. How can that be? there is no 
 moral insanity, unless it affect the immortal mind : talk- 
 ing of morals without mind is ridiculous perfectly ri- 
 diculous. You might as well talk of the morals of a 
 dead body. Moral insanity is nothing more than a di- 
 vision formed by metaphysicians, of intellectual insanity. 
 They place it in the heart, because the heart is termed 
 the throne of the passions ; they don't allow it to be at- 
 tributed to the head or the mind, without which man's
 
 280 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 affections or passions are nothing at all ! I have thought 
 proper to advert to these things, because they are inter- 
 esting ; and not altogether unimportant in the use that is 
 given them. I must shortly advert to a more admirable 
 science, which I trust we understand quite as well. 
 Though before passing on, permit me to say I have 
 been disappointed ! surprised ! confounded ! at the sequel 
 of that magnificent volume whose preface promised so 
 much wisdom. I did suppose, that the gentleman who 
 could write such a romantic history of the deer parks 
 and flower gardens of an asylum, might have devoted 
 some portion of his leisure to metaphysical pursuits 
 "utile cum dulce" which would have appeared to much 
 better advantage when exhibited on this occasion. 
 
 Having thus cursorily discussed the metaphysical por- 
 tion of this question, the next subject in order, and more 
 important, though not more interesting, is THE LAW the 
 greatest of all earthly sciences, and embracing quite as 
 much metaphysics, quite as much of the important rela- 
 tions of every earthly science, as any other. It is the 
 QUEEN of the temporal sciences ; those that are directed 
 to explain the knowledge of the Creator, are above com- 
 parison above ROYALTY. 
 
 Now, it will be my duty, and I hope my learned oppo- 
 nents will pardon me, to show not that they are quite 
 as much misled as the doctors themselves, in what they 
 deem their peculiar province, but that they are very 
 egregiously mistaken. Indeed I thought they might for 
 a time, have led your honor into their views, until by 
 accident they stumbled upon the case reported in Binney 
 which promulgated the doctrine of want of probable 
 cause and malice which doctrine I aver to you has, so 
 far as the purposes of our present inquiries go, no more 
 to do with it than the Copernicau system. They make 
 that their defence their turning point ; and if I take 
 that poor refuge away dispel that delusion they have 
 no pillow upon which to rest their disconsolate heads.
 
 HIKCHMAN CASE. 281 
 
 Didn't you observe that our learned friends " caught a 
 Tartar," in reading the authority referred to. It was read 
 for one purpose, but unfortunately it has in it a principle 
 which destroys the whole defence. Now, sir, although the 
 observation is not remarkable for its modesty for which 
 lawyers you know are remarkable ; nevertheless, I may 
 be permitted to say, that I profess t<? understand the doc- 
 trine which has been applied to this branch of the case 
 as fully as it can be understood for that requires no 
 Solomon. I understand it, and your honor understands 
 it; and by comparing notes we shall all understand it 
 better. Now, sir, what is a conspiracy? because we 
 must begin here there is no managing an argument by 
 jumping into the middle of it. A conspiracy, gentlemen 
 of the jury, is not half so complicated as you might sup- 
 pose. It is the agreement of two or more persons to do 
 an unlawful act; or it is an agreement of an equal num- 
 ber of persons that is, two or more to do a lawful act 
 in an unlawful manner. To show you what is necessary 
 to establish a conspiracy, though I don't wish to pause to 
 read books, I refer you to 2 Russell, p. 697, edition of 
 1845. I don't intend to read it, because your honor un- 
 derstands it as well as Mr. Russell ; but it is sometimes a 
 facility to give you the page, which may save you the 
 trouble of research. Now allow me to tell you that any 
 person who is art or part, either in doing, or conspiring to 
 do, an unlawful act; or is art or part in adopting an un- 
 lawful manner of doing a lawful act, is a conspirator. 
 
 It is not necessary, as his honor will tell you, that an 
 act should be done. I am now speaking of the criminal 
 character of conspiracy. It is not necessary that an act 
 should be done at all. Nay, if the act be a felony, the 
 conspiracy is lost utterly ; for being but a misdemeanor it 
 is merged in the graver offence. It is the agreement to do 
 the act which constitutes the crime. Your honor will 
 perceive the beautiful philosophy of the law not like 
 the metaphysical moonshine that is introduced here.
 
 282 FORENSIC SPEECHES OP DAVID PAUL BROWN. 
 
 The whole law, and especially the criminal law, consists 
 of a system of checks and safeguards. It is the protec- 
 tion of the community against vice and subserves the 
 daine law in forming, guarding and inducing virtue, in 
 man. That is the basis of it build upon that the ob- 
 ject is not to punish ; the object is to prevent or reform. 
 What does it do ? As long as man keeps his design 
 within his heart within his breast though it be of de- 
 moniac gloom and blackness, of course human tribunals 
 cannot suspect it, and cannot affect it. He is left to the 
 punishment of the Omnipotent ; " for darkness and light 
 are both alike to Him." He alone can pry into the deep 
 recesses of the sinner's bosom ; drag forth the secret mo- 
 tive from its hiding place, and expose it to the reproaches 
 of an affrighted and horror-stricken world. What can 
 man do in such a case? I can tell you what he can do, 
 and what he does do. The moment that, by the slightest 
 whisper, the inward workings and purposes of the culprit's 
 mind are communicated to the officer of justice, he be- 
 comes amenable to justice. Beautiful system! Here is a 
 man who intends to take the life of another ; his motive 
 and his purpose are known only to that powe,r that can 
 fathom the ocean. The motive there is equal to the act 
 it is the act itself. The motive here is nothing, till it be 
 accompanied by the act ; because it cannot be detected. 
 If a man having the design, simply say, I will take the 
 life of A. B. (though he may have been plotting it 
 for years), he is taken before a judicial officer and is 
 bound over ; the incipient impress of the devil is detec- 
 ted in him. .Upon this system of checks, the guilty pur- 
 pose is noticed, and he is prevented from sinking lower in 
 the gulf of crime. He is not punished, for he cannot 
 be indicted ; he has done no act ; he cannot be indicted 
 for saying he will do a thing; he is only bound over to 
 keep the peace ; no laws go farther. But still observe 
 the admirable system of the law.: the moment he com- 
 municates that design to Mr. Richie; and Mr. Richie
 
 HINCHMAN CASE. 283 
 
 unites with him in the design ; and that becomes known 
 though they do not take a single step towards it they 
 are both subject to be indicted and punished for an infa- 
 mous crime. See how the law checks the downward 
 course of guilt. 
 
 The action on the case, in the nature of a writ of con- 
 spiracy, is one of our ancient inheritances. It has noth- 
 ing to do with the doctrine of criminal conspiracy. 
 
 !Nbw, sir, to the difference which your honor has some- 
 what anticipated. In a criminal court, the mere agree- 
 ment, without any act, can be punished and has been 
 punished a thousand times. In a civil court, the mere 
 agreement without any act, cannot be noticed. I ask 
 your ratification (his honor nods), you will give it ; I 
 have only to suggest it. How can you punish it in a 
 civil court ? You proceed for damages, if a man has con- 
 spired in malice. If two persons have agreed corruptly 
 together, and institute proceedings before a magistrate, 
 that is the overt act. They may be punished in a civil 
 court, because it produces injury ; but as long as the con- 
 spiracy rests as a naked conspiracy a mere agreement so 
 long it is not punishable in any way by a civil tribunal. 
 It is not there actionable at all. But to make it so, it is 
 necessary some injurious act should be done. Now, sir, 
 what is the force of the case of Munns and Dupont, and 
 the two cases quoted by my learned opponent, Mr. Gris- 
 com who certainly said as much as could have been said 
 in a bad cause. They have no importance at all, permit 
 me to say. They have not a particle more to do with 
 this issue, than with the law in relation to ejectments ; or 
 any other utterly irrelative matter. 
 
 I say, may it please your honor, that the whole of this 
 doctrine is settled in a work adverted to, but not fully 
 read, by my learned friend, Mr. Perkins the best work 
 known to the law I refer to, 1st Williams' Saunders, page 
 230. If your honor will permit it to be handed to you, 
 you will tind at page 230 (in the notes which consist of
 
 284 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 some two or three pages in the case of Skinner v. Gunton 
 and Lyon), the whole doctrine most admirably laid down, 
 with all the necessary references and authorities. There 
 is one feature that may strike you, as a little remark- 
 able: though your honor is a ripe and experienced law- 
 yer, these things do not always occur in the practice of 
 one short life. You know that in an action on the case, 
 in the nature of a writ of conspiracy, you can convict 
 one person, where there are but two charged. Go into a 
 criminal court, indict two persons for a conspiracy, for 
 the purpose of testing this matter acquit one and you 
 acquit the other. Does not that satisfy any man of the 
 distinction between the character of the two cases ; and 
 to show your honor the soundness of the doctrine, I pre- 
 sent to you a very brief reference to Buller's iftsi Prius, 
 page 14: k< If the action be brought against several, and 
 one only be found guilty, it is sufficient. There is con- 
 siderable difference between this form of action on the 
 case, and the old writ of conspiracy." If I were to read 
 all day, I should only come to the same result. I'm not 
 in favor of reading books in public places ; a man's study 
 is perhaps the best place ; but I'll just' refer to page 230 
 of the same book, which has been alluded to Williams' 
 Saunders, page 230 in refutation of their entire doctrine 
 in respect to civil actions for conspiracy, sounding in 
 damages. In criminal cases, the conspiracy to do a wrong 
 is punishable, although the wrong be not accomplished ; 
 but in civil cases, twenty thousand conspiracies amount 
 to nothing, without positive, or constructive injury, to the 
 party. The injury, therefore, is the ground of the action, 
 although the confederacy may be matter of aggravation. 
 
 In a criminal case, I repeat it, at least two must con- 
 spire, and one cannot be convicted without the other. In 
 a civil case, a verdict may be found against ,any one, or all 
 of the defendants. 
 
 This is " Crowner's Quest Law," and every tyro, or neo- 
 phyte, is bound to know it.
 
 HINCHMAN CASE. 285 
 
 But they contend we are obliged to prove malice, and 
 want of probable cause, as well as 'confederacy. That I 
 will defeat just as readily as the other position they have 
 ventured to assume. Not, that it is very important, for 
 they are both proved here, as I shall satisfy you, ere I 
 have done with the case. But it is not necessary that 
 either should be proved, as they are. inherent to the act 
 itself. 
 
 The act itself sufficiently implies malice. The operation 
 of the theory as your honor will perceive with your per- 
 spicacity is that these defendants cannot get relief from 
 rumors that they themselves put in circulation. Malice 
 is no where more necessary than in murder; yet, if ac- 
 cording to the Spanish custom in some of the West India 
 Islands a felon runs a muck; and strikes dead any or 
 every other man in his way, for the gratification of some 
 demoniacal principle, or some fanatical impulse, and he is 
 arrested and brought before a judicial tribunal to answer 
 for his deeds must I prove malice ? Why, sir, I have 
 nothing to do but to point to the dead body to hold up 
 the bloody dagger and all nature with her thousand 
 voices exclaims, malice ! malice ! ! malice ! ! ! and the 
 matter's done the question's settled. It is no answer to 
 say one of the victims was his twin brother, sprung from 
 the same loins, with whom he had always been on the 
 most intimate terras ; and another was a man he never 
 knew or saw and could he entertain malice? The law 
 says your acts and it is not necessary to go beyond them 
 speak of malice, " and manifest a heart regardless of 
 social duty and fatally bent upon mischief." It's no an- 
 swer to say he was ignorant of the law. Ignorance of the 
 law excu=es no man. Malice is not always confined to 
 the blood-thirsty, or hasty in disposition. It sometimes 
 contrives its snares in secret, and watches long years for 
 its opportunity to revenge some fancied slight or unfor- 
 given oft'ence ; and sometimes it is a reckless, careless in- 
 difference to the just rights of our fellow men. In some
 
 286 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 instances this may be culpable ; and the law says to the 
 culprit your felon hand was directed against all laws, 
 human and divine, as well as against the ordinary light 
 of reason, and you must expiate your offence upon the 
 gallows ! 
 
 There is a wide distinction between the case cited by 
 our learned opponents, and the case we are engaged in 
 adjudicating: a difference very interesting, very import- 
 ant, and easily distinguished. The case they quoted, was 
 an action for malicious prosecution ; to which the doctrine 
 of malice, and want of probable cause, is applicable. Here 
 it is not necessary to be proved. Why, your honor knows 
 it is not necessary to prove anything in connection with 
 slanderous words in themselves actionable. The action 
 for malicious prosecution (to which their argument is 
 solely applicable), is brought against those, who have 
 sought to punish the plaintiff, by resorting to legal pro- 
 cess. Then the law takes care of its own. In the case of 
 Munns and Dupont and a thousand other cases that 
 might be mentioned the law says : you have appealed to 
 the law you have made oath you have issued your 
 warrant you have arrested this man brought him to 
 trial, and it happens either by mischance, accident, or in 
 some way, the charge fails, and he escapes ; but it is con- 
 trary to the policy of the law that he should turn upon 
 his pursuer. In such a case the law presumes there was 
 no malice. I won't allow says Justice my temple to 
 be converted into an arena, for conflict between a man 
 who has prosecuted, according to law, from good and al- 
 lowable motives, and the person who for want of proof, 
 has escaped by the clemency or charity of the law. I 
 won't says Justice raise a presumption against an indi- 
 vidual who has resorted for protection to my hallowed 
 temples. We presume everything in favor of the man who 
 confides in the law. Now I am sure I make myself under- 
 stood. But, may it please your honor, it is a widely dif- 
 ferent matter, when ^instead of proceeding under the law, a
 
 HINCHMAN CASE. 287 
 
 body of men take the law info their own hands. It is only 
 the man who wields the SWORD of the law, that enjoys protec- 
 tion from the SHIELD of the law. That is the sum total of 
 the whole doctrine. The men who employ their own 
 swords, or their private daggers, for their private purposes 
 defying the law, and trampling upon it appeal in vain, in 
 their extremity, for the application of those principles, 
 that they only are entitled to, whose resort has been to legal 
 means. Show me a case, sir, in which the want of prob- 
 able cause, or malice as being necessary to be proved 
 ever arose, where the original arrest was an illegal one ! 
 Shall it be tolerated, may it please your honor to bring 
 this suggestion closely upon the heels of these defendants 
 that half a dozen men shall seize you, without oath or 
 warrant, with impunity (while half a dozen of their con- 
 federates shall watch for you in the neighborhood) and 
 bear you away to a private mad-house ? Why, what said 
 Mr. Allen, one of these managers, produced here as a wit- 
 ness for these defendants and who, by-the-by, seems as 
 cold and heartless as the marble mortar he has so long 
 pounded with his pestle ? Having been brought up in 
 his drug shop among preserved reptiles, and " alligators 
 stufted," he seems to have imbibed some portion of the 
 venom, that once actuated his companions. He says, in 
 answer to your honor's inquiry, that on the mere certifi- 
 cate of any doctor whatever, no matter how obtained, he 
 would consign me, or any one of the hundreds in this 
 court room, to incarceration in this private prison near 
 Frankford. Yes, on his affirmation, he declares he 
 would ! He did not blink the question take us all ! 
 Remember this, gentlemen of the jury. (Defendants' 
 counsel remind Mr. Brown that the witness said he 
 would require a bond.) Mr. B. continues: Yes, a bond 
 of indemnity a bond to pay three or six dollars a week. 
 What do they care for the law ? All he cares for is the 
 bond ; that's right, old Shylock, stick to " the bond." 
 And shall we now be told will any man maintain,
 
 288 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 when such men are brought into a court of justice that 
 they may fold their arms and say, " Well, here we are, 
 now you must prove a want of probable cause, and malice ; 
 you never saw some of us before ! No ! (says the law) I 
 don't know you ; you are outlaws ; you are not the chil- 
 dren of the law : the presumptions of the law are not 
 in favor of you, but they are against you and all your 
 kith, kin, kidney, and companions. That, I understand, 
 is the doctrine to be applied to this arrest ; which was 
 not committed under authority, but in open, direct, 
 bold, barefaced violation of that law, which is your pro- 
 tection and mine nay, which is also the protection of 
 these very defendants ; resembling, in that respect, the 
 beneficence of the sun of Heaven, which smiles alike upon 
 the poor and the rich, the weak and the powerful, the 
 oppressed and their oppressors. The law is the protec- 
 tion of the very men who have ventured to violate it ; 
 and it will be a dark day for them if the principles could 
 be established that they now contend for. They would 
 be among the first to feel the effects of that whirlwind of 
 passion, that would inevitably break forth. Let them be- 
 ware how they ask your sanction to a doctrine that will 
 destroy those great ties, that bind together and protect 
 society. They know not how soon, in the circling 
 changes of life, they may be subject to its application. 
 The prosperous of to-d;iy pass but a few years are 
 oitimes the lowly : seeking the shelter of that very law 
 which throws its impartial protection over its meanest 
 subjects. Such is the beneficence, the wisdom of the law 
 such the justice of the law ; which is but the handmaid 
 of that divine law whidh flows from the throne or seat 
 of God himself. 
 
 Now, sir, I will show you with a single authority, that 
 the decision is as I have stated ; and that is the one which 
 my friend ran afoul of. It is the opinion of one of the 
 best men that ever sat on the bench ; and perhaps as 
 bright as any other. It will be found page 172 of 1st
 
 HINCHMAN CASE. 289 
 
 Binney. "It seems that in an action on the case in the 
 nature of conspiracy, it is not necessary to declare, that 
 the conspiracy was without probable cause." Here, too, 
 was a regular and formal charge, preferred in the form 
 of an affidavit, in a legitimate tribunal. I ask them to 
 
 7 O 
 
 show me any case, where the arrest was without au- 
 thority, in which anything was said about probable 
 cause. It would be converting the temple of justice into 
 a private arena for gladitors, " The defendant's counsel 
 have based their arguments on the first point (i. e., in re- 
 gard to probable cause), on this position, that the analogy 
 between actions for a malicious prosecution and the pres- 
 ent action is so great as to warrant the conclusion that 
 the declarations should be alike, in alleging the want of 
 probable cause. There is, however, a considerable differ- 
 ence between these actions. The action for malicious 
 prosecution being founded on a malicious proceeding by 
 the defendant in a court of justice, there is more reasou 
 for alleging and proving in that action, than in this, that 
 there wa^ no probable cause for the prosecution ; for 
 where legal process is issued, the presumption, prima 
 facie, must be, that the proceeding was proper." 
 
 We presume malice, prima facie, and put it upon the 
 opposite party to remove the presumption, by proving 
 probable cause, and want of malice. There is no use of 
 a man's enjoying the benefit of the presumption of the 
 law, if he is bound to prove it. The character of the pre- 
 sumption throws the necessity for exculpatory proof on 
 the opposite party. What they have to do is, not to 
 call on us to prove all that took place in their orgies ; in 
 their different meetings ; in their grand divans, in which 
 the plot to cleave down this man's liberty was laid. Let 
 them show anything calculated to justify them ; for noth- 
 ing short of justification answers in the pleadings of this 
 case. Let them even show anything to mitigate the 
 offence, and not resort to matters of this sort. They 
 presume their victim insane, and want us to prove all 
 
 19
 
 290 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 that took place in their secret meetings. It is out of the 
 question. It cannot be. 
 
 (Judge B. Suppose the jury be of the opinion that the 
 man was in a state of partial insanity, and this man was 
 arrested from pure motives, and not with a view to pe- 
 cuniary gain?) 
 
 My answer is this (because it must ba qualified) if 
 that partial insanity were of such a character as to render 
 the arrest imperative, in order to the protection of life or 
 limb ; or to forestall impending danger ; then I hold them 
 excused. But would your honor apply it to the case of 
 a harmless- and unoffending citizen, who for seven years, 
 under the very eyes of these men, and from their bands, 
 receives certficates of competency and sufficiency ? Why 
 they never doubt his sanity, until he gets money ; until 
 the trust was revoked. I do not mean to say that where 
 the man is raving, you should not be permitted to arrest 
 him, for his benefit or for the safety of the community ; 
 nor do I mean to say that it necessarily follows that you 
 do a wrong act where you arrest him without a warrant ; 
 but I do mean to say that when you do arrest him, you 
 must make good the charge. If you do it, you do it at 
 your peril. Do it in a legal mode, the law is your shield 
 but don't go into the highways and by-ways, to seek 
 evidence, which, if true, was utterly unknown to you at 
 the time. "What your motives are, you best know : 
 prove that yourselves! Show there was an actual neces- 
 sity. Show the man was guilty show he was insane 
 show why the character of his guilt, or insanity, required 
 this disregard of the law. Show that there was no time 
 
 o 
 
 to take him with authority. All these enter into the ap- 
 plication of the principle. One of these points is decided 
 in the case at p. 452, "Watt's Reports ; where the doctrine 
 is fully laid down. But where the man has a known 
 residence where he may be found ; shall he be waylaid and 
 arrested, without authority ? Why, may it please your 
 honor, this would be the most hazardous doctrine that
 
 HINCHMAN CASE. 291 
 
 ever was known. You may not arrest a man without 
 cause. 
 
 A police officer may arrest ; but let him look to the bill 
 of rights, and not break down the constitutional protec- 
 tion of the citizens, for the purpose of meeting fancied exi- 
 gencies. If, on the contrary, you proceed, on your own 
 responsibility with the intimation *that you must abide 
 the consequences must doit at your peril then you will 
 do it only when you feel secured. Why, sir, the king of 
 England himself I don't know what the queen might 
 do, for women assume many responsibilities, the king 
 would not dare to do what our puritanical and peace- 
 ful Friends have done. Does it not strike you all with 
 astonishment, that the descendants of Penn as Mr. Gib- 
 bons called them and the great-grandfathers of Perm 
 as my friend Griscom has considered them (Mr. Griscom 
 interrupts, and says it was great-grandchildren) no let 
 it be grandfathers, for the other is not ancient enough 
 for prescription is it not wonderful, sir, that the first 
 offence of this kind (for aught we know) should be perpe- 
 trated by the peaceful the pious the professed lovers of 
 the meek arid lowly Saviour ; and that Mr. Gibbons, who 
 seems to misunderstand the application of the doctrine to 
 this case 
 
 (" Hear it, ye heavens, and wonder while ye hear it,") 
 
 should compare these gentlemen to the good Samaritan, 
 who found a wounded traveller upon the wayside, and 
 poured oil and balm into his wounds? He made a mis- 
 take ; they were the highwaymen that wounded the travel- 
 ler. There is the difficulty, and all the trouble we have 
 is in the proper application of the text. Who wounded 
 him but themselves? What oil and balm did they pour 
 into his lacerated heart ? Was it balm, to withdraw him 
 from his children's consolations ; to sever him from his 
 wife; to imprison him, and doom him night after night
 
 292 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 to his melancholy cell ; to interrupt him hour after hour 
 during the period allowed to sleep if such a man could 
 sleep in such a situation ? They tell you in the next 
 breath that he requires repose ; and for that purpose they 
 put him in a cell where he is awakened every hour! 
 Admirable consistency ! 
 
 First impressions are correct : and when your honor 
 said you could not trust yourself to speak of this case as 
 ybu felt, you could hardly restrain your indignation it 
 was your first impression. Resort may be had to ingeni- 
 ous suggestions, and escape may be hoped for ; but when- 
 ever you find them ensconcing themselves behind the 
 arras, there is some mischief! According to the Spanish 
 proverb: when you find a man who wears a long cloak 
 you cannot tell what it conceals, it is true, but you may 
 know from the cloak itself that it is evil. That is sound 
 reason here they all are cloaking together. When I 
 come to another part of the case, I will show you that 
 there never was a more fantastic defence, than that which 
 was exhibited here, if I understand it. Why, don't you 
 perceive that this defence never existed even in fancy 
 until after the action was brought ? 
 
 The defence, in order to exist availingly, should have 
 existed before look at that. By sounding the trumpet 
 of a retreating army, they can gather all the stragglers. 
 Notwithstanding they fought him out of his pocket, they 
 did not stop there thus showing their malice and hatred 
 they fought him after he was declared to he sane. 
 They pay a lawyer for resisting him in getting his own 
 property out of his own funds. My learned friend says 
 that Philip Garret, in taking Morgan Hinchman in, and 
 then confining him, had no art or part in the concern. 
 May it please your honor, when does a defendant partici- 
 pate I may as well dispose of that now. Men may con- 
 spire together; and if a man come in at the eleventh 
 hour, he is answerable for all done before. (Judge. Sup- 
 pose he is not in the conspiracy, but does some collateral
 
 HINCHMAN CASE. 293 
 
 act not of a nature to prove part of it he is not answer- 
 able at all.) I know your honor likes fairness and open- 
 ness, and I am not going to strain any point. It comes to 
 this ; if he was not one of them he is not answerable. 
 But your honor will see that if two men, or twenty men, 
 in different parts of this wide-spread city are all doing 
 similar acts at the same time, against the same individual, 
 who lives in the centre ; when the law comes to try them, 
 their simultaneous acts prove their guilt : because the 
 law cannot understand how twenty men, twenty miles 
 asunder, could act exactly alike, with reference to the 
 same person, unless by concert. Your honor will per- 
 ceive, that I have said when a man comes in at the elev- 
 enth hour he is a conspirator; but if a man come in at 
 the first hour, and with others concoct and concert a plan 
 of injury; and then he is not seen till after its comple- 
 tion, he is answerable for all that takes place. It is the 
 same heart, the same motive ; and whether he raises his 
 hands to carry out the motive or design, is of no consid- 
 eration or regard. So of a man who lives in California ; 
 he may be, though out of the jurisdiction of this court, a 
 conspirator with a man here. Men in different countries 
 may be conspirators. It does not matter where they re- 
 side when they come in what portion of the wrong 
 has been done by them they are answerable from the 
 beginning to the end. Those who come in last, adopt the 
 acts from the beginning; and constructively conform to 
 the motives of others, and are answerable, i^ay, more 
 than that, sir, I take leave to say, that if a dozen men 
 assemble around three armed men ; and these armed men 
 present their weapons to the breast of an intended vic- 
 tim ; and the other twelve do nothing say nothing 
 and harm nobody ; they may wash their hands as they 
 please, the law makes them guilty : for their physical 
 force operates to destroy or defeat the intention of self- 
 defence, that may, of right, exist in the other party. It 
 is not necessary the men should act. If you had thought
 
 294 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 of defending yourself against one man, what hope have 
 }~ou against such a number? Though they do no act, 
 they promote the aggression. They were bound to pre- 
 vent it, and he who does not is answerable. 
 
 These men have trampled upon the bill of rights, and 
 violated constitutional protection ; they are all implicated ; 
 whether all were present and all united in the immediate 
 design, as is undoubtedly the case, it matters not. It is in 
 vain they refer to the wife and mother ; it is in vain they 
 attempt to screen themselves behind a petticoat (for that 
 is part of their valor, and it is admirable to be sure) ; it is 
 in vain they assert their ignorance of the law. No man 
 is permitted to be ignorant of the law, and of the rights 
 of individuals. With three counsel in Doylestown, and 
 one in Philadelphia four lawyers and still be ignorant, 
 almost passes belief. These men seize me ; take me to the 
 asylum ; keep me there for six months ; allow my child to 
 die ; sell my property, and then say " we were ignorant /" 
 Who is to pay for your ignorance ? You must pay for it 
 yourselves. There are no excuses, except the proof of 
 their insanity, or that of the plaintiff. I could prove them 
 insane more clearly than they prove Morgan Hinchman 
 to be so ; sending Mr. White a respectable man ; impos- 
 ing on him, and making him the wretched pander of a 
 lie, to deceive a man, who they say was insane, by mak- 
 ing an appointment with him to buy his property. Are 
 these the characteristics of just men ? It appears to me, 
 that it is an extravagant notion, to say the least of it. 
 Although ignorance is poetically said to be " bliss ;" it will 
 be found in point of law, to be a troublesome companion. 
 It is certain that so far from justification, it is in many 
 instances, a gross aggravation of the offence. Now, sir, I 
 say, for the purpose of meeting the gentlemen ; if Mor- 
 gan Hinchman were in a deluded or doubtful state, they 
 had no right to arrest him in this manner away from his 
 friends, away from his home, in another county than that 
 of his residence, without any legal authority, and without
 
 HINCHMAN CASE. 295 
 
 actual necessity which is the only substitute for au- 
 thority. The law utterly abhors a proceeding like this. 
 If he were a criminal, they would not dare to arrest him 
 in this way ; and to say that they heard slanders about 
 him; and to bring such a man as Matlack a living 
 anachronism who cannot correctly remember anything 
 within five years, and who forgets v the time of his own 
 marriage for the purpose of swelling the slanders. He 
 finds Mr. Hinchman always sane when he wants him to 
 lend him $1,250 ; but not sane when he requires him to 
 pay it back again. 
 
 I don't wish to travel out of this case for the purpose 
 of dragging in these matters ; there is, heaven knows, 
 enough to do, in what belongs to the case. I say, if he 
 were a criminal, they would not have dared to arrest him 
 in this way ; making themselves magistrates, witnesses, 
 bailiffs, judges, executioners everything. Let me 'test 
 it. This will be a fair test to you : suppose when they 
 came to arrest Morgan Hinchman even with Mr. George 
 M.Elkinton, the Napoleon of this train-band ! who speaks 
 " true cannon powder," when he says " There is no use 
 of talking any longer, if thee is not going, we will 
 force thee," suppose, notwithstanding this leader of the 
 Spartan band so " bloody, bold, and resolute," Morgan 
 Hinchman had said, " G-entlemen, I don't understand 
 this ; I shall not go ;" and he had felled each one of the 
 six, successively to the earth, and they had prosecuted 
 him ; what would be the result ? His honor would tell 
 you that after he had knocked them down, he ought to 
 have kicked them out. It may have been sport to them, 
 but to the plaintiff it was death. Suppose you should be 
 awakened from your slumbers as by a thunder-clap from 
 a cloudless sky, and find yourself surrounded by your 
 hunters, and told that you are sick you think you are 
 well, and say, " I am not sick, and I am the best judge 
 of the matter." " Well, but we shall give thee repose," 
 and yet you were interrupted every hour of the night.
 
 296 FORENSIC SPEECHES OP DAVID PAUL BROWN. 
 
 " Well, but I don't want to go I have business to attend 
 to." And I'll show you at a proper time, how beauti- 
 fully the business of Morgan Hinchraan was arranged. 
 
 Can any one contend, that you may be violently seized, 
 and remorselessly and legally borne away, to the melan- 
 choly cells of a common mad-house ? It is madness to 
 assert it. 
 
 I say, gentlemen of the jury and we move step by 
 step, desiring at the same time some little impress may be 
 made in the progress of the journey, suppose they had 
 gone there armed with the law with a warrant, accom- 
 panied by a police officer, acting under a regular deputa- 
 tion ; and then had arrested him he would not have dared 
 to lay his finger on them. That goes to strengthen the 
 opinion previously suggested, that the law protects those 
 acting in the name of the law ; and punishes those who 
 attempt resistance to its authority. It is true that indi- 
 vidual oppression is rarely so abhorrent, rarely so odious, 
 as when it stalks forth decorated in the sacred habili- 
 ments of the law. But still there is one condition of 
 things more odious than that where it is perpetrated 
 without the sanction of the law where it not only does 
 injury to the individual, but exhibits and furnishes an ex- 
 ample to the community, which teaches them to imitate 
 the outrage, instead of adopting virtue and the law as 
 their standard. It is, therefore, important (I can't refer 
 to it too often, for I consider it a vital matter) that you 
 should distinguish, between what men do of themselves, 
 against the general principles of civil society ; and what 
 they do under the law with the law's authority, and with 
 the law's shield. I cannot exhibit it more strongly, than 
 by showing, that in one case he would be justified in 
 kicking them down stairs; and in the other case, they 
 would be justified in taking him, whether he was right or 
 wrong, in obedience to their official mandate. They may 
 kill him if he resist. But if they had killed this man, he 
 resisting, there is but one result it would have been
 
 HINCHMAN CASE. 297 
 
 murder " murder most foul as in the best it is, but this 
 most foul, base and unnatural." Your honor says truly, 
 it would have been murder, simply because it was not 
 under authority ; and he was authorized to resist, if they 
 were not authorized to punish. If he had died in resist- 
 ing these unauthorized attacks, they would have been 
 malefactors, and must swing for it. I don't know that I 
 shall have occasion to return to this, but I wish it to be 
 impressed upon your minds, in order that you may know, 
 when you hear the law spoken of, that it is your protec- 
 tion, only while acting in obedience to it. The shield is 
 turned into a sword, when you become violators of public 
 peace, order, and law. I say then, summing this up : it is 
 plain, if this doctrine be sound, that the proceeding was 
 wrong from the beginning, being founded in wrong ; and 
 I say further that no subsequent proceeding, could make 
 it right. This is another point that runs counter to our 
 friend's position. You cannot impart life to a dead body. 
 There is no Promethean spark that can revivify that 
 frame, in which life is once extinct. An act that is void 
 (not merely voidable), an act that is void as this was 
 an act that is worse than void that is criminal, as this 
 was can never be restored to pristine health and purity. 
 But if it could and here is another point I further say, 
 that every subsequent step was as illegal as the first. If 
 the wholesome ear cannot impart life to a blasted brother : 
 certainly the corrupt ear cannot restore health. The peti- 
 tion was all wrong the commission was all wrong the 
 inquest was all wrong. The mode of summoning the 
 jury, I will show you at a future time, was wrong I use 
 no harsher term. All contributing to show how strong, 
 operative, and diffusive were the principles of this con- 
 spiracy. The want of a seal was defective the affidavit 
 was defective ; and the continued confinement in the 
 asylum was a superadded outrage. 
 
 Why, if we had even admitted that be was insane did 
 your honor not observe a peculiarity here : Dr. Evans
 
 298 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 says, the plaint.ff was convalescent early in February 
 that was before some of the letters were written. Then 
 why did they keep him there till the 7th of July ? Now, 
 that is the doctor's evidence. What is the object of it ? 
 There is no other mode of accounting for the sanity of 
 the letters, than by his being convalescent in February? 
 Why is he kept live months afterwards ? Do you. mark 
 that I only ask the question now I will answer it 
 by and by. 
 
 The learned judge, to whom I bow with deference, has 
 said : " that as the inquisition has been set aside, it is as 
 though it had never be^n." It will be a dark day when 
 the opposite doctrine shall be tolerated when original 
 wrong may, under the wing of the law, be purged into 
 pristine health and soundness. Once wrong, it is always 
 wrong. Its foundation is too weak, to sustain any de- 
 fence, however light and serial, that is built upon it. It 
 has been quashed and set aside for original defects. It is 
 as though it had never been, so far as regards the defence. 
 They can have no protection from it. But it is not as 
 though it had never been, so far as regards the plaintiff's 
 case. The very machinery that they have resorted to, for 
 the purpose of imparting vigor to their puny bantling, is 
 evidence of their malice of their connection with the 
 transaction; and their connection with subsequent mat- 
 ters is a proof of original combination. Still they recur, 
 (whenever they are hemmed in by difficulties of this char- 
 acter) to the old suggestion, so well argued by my friend 
 Mr. Williams " that they performed different parts, and 
 came in at .different times." I answer, they came in : it 
 does not matter when they came in, or what part they 
 acted. It does not matter whether in this drama they 
 were stars or supernumeraries kings or servants they 
 all contribute to swell the dramatic personce they all per- 
 form their respective parts all contribute to disturb 
 domestic sanctity, and must all bear the penalty. Now, 
 gentlemen of the jury, after discussing almost every priu-
 
 HINCHMAN CASE. 299 
 
 ciple that is embraced, or can be embraced in this case 
 though not applying it, because that must be reserved for 
 the minute consideration of facts after all this, we come 
 to what is considered the essence of the cause. My learned 
 friend and professional antagonist, Mr. Gibbons invert- 
 ing the natural order of things has commenced with his 
 conclusion ; and has concluded wher^e, I think, he would 
 have more properly commenced. That however is a mat- 
 ter of choice a matter of judgment. He may be right. I 
 shall take another course, and shall ask you to ratify it, and 
 unite with me in its pursuit, beginning with the unlawful 
 arrest, the character of which I have shown, and tracing 
 the plaintiff' by the current of time down to the period 
 when the proceedings against him, under the commission 
 of lunacy, were quashed. Having gone over this part, I 
 shall next examine the alleged ground upon which the 
 arrest was made, and on which the confinement was con- 
 tinued down to the 7th of July, 1847. You will bear in 
 mind that the confinement would have continued until 
 this day heaven knows how much longer if it had not 
 been for the interposition of Benjamin Hinchman, and 
 the subsequent escape of Morgan Hinchman he having 
 withdrawn his parole. They tell you they never allowed 
 patients to go, until the parties that placed them there, 
 came for them. You know that the mother, herself, 
 differed from Dr. Evans ; and entered into an argument 
 to show that her son should not be set free the first in- 
 stance on record, established against this most estimable 
 lady : equal to the Countess ot Macclesfield herself, who 
 pursued her own child to death, dooming him to famine, 
 while she was rolling in the luxury and opulence of 
 Eastern magnificence. This lady, whose heart should 
 have overflowed with joy, and who should have been the 
 first to suggest that it was probable her son was recovered 
 when Dr. Evans said he was about to be discharged ex- 
 presses doubts whether it was proper. Now while the tears 
 of a paternal relative flow down manly cheeks and while
 
 300 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 no man that listens can fail to feel, where was the glist- 
 ening moisture of the eye exhibited -by a mother, in the 
 attempt to demolish the character of her own child. I 
 suppose " Grief drank the offering ere it reached the eye." 
 There is no other mode of accounting for it. Ao;aiu, the 
 
 O O ' 
 
 fair sister smiles looks on and smiles and enjoys this 
 proceeding, under the protection of the adversaries of her 
 brother ; and never sheds a drop of sympathetic dew from 
 her bright eyes, to improve the roses on her cheek. Look 
 at these things. And then another sister, condoling with 
 him : Heaven spare me and mine, from such condolence, 
 should condolence be required. "There is a cant condo- 
 lence that gives more pain to the afflicted mind than open 
 scorn !" Such was the character of her letter. I think 
 I never knew more obduracy, in a matter calculated to 
 enliven and invigorate all the springs of the human heart 
 than was exhibited there. My learned friend, Mr. Gib- 
 bons, complains of an honorable, high-minded man, who 
 has dune nothing but venture to stem the torrent of per- 
 secution in behalf of a brother's son ; and turning upon 
 him, stigmatizes him as a "paternal relative, who shed his 
 dramatic tears." It comes well from that quarter. There 
 was not a man in this assembly that was not more moved 
 by the plaintiff's injuries, than the mother that bore him 
 K"ot one. I am perfectly willing to pay all homage to the 
 feelings of a woman's breast that it is entitled to ; and 
 remember I say nothing against her it is not my busi- 
 ness. I know nothing of her character. A woman may 
 have a marble heart ; and yet may be an honest, prudent, 
 careful woman, in good standing. I should be mad, and 
 put in a mad-house, if I were to create an issue of that 
 kind. But I will venture to say, that the course pursued 
 by these persons whether stimulated by affection or fear 
 or hatred, I don't care which operated, like thrusting an 
 ice-bolt through your hearts. Theory is one thing ; wo- 
 mau's love is a delightful theory ; but inverted love love 
 sprung from hate that is engendered by the dislike of
 
 HINCHMAN CASE. 301 
 
 relatives for nearly eighteen years; these things corrupt 
 the genial current of a woman's affections. When she 
 owing a divided duty comes to be supported by her 
 daughters, in opposition to her son ; it is only a compari- 
 son of relative affections. In addition, she was endorsed 
 by the whole confederacy. To manifest some regard for 
 their authority, she burns his letters. . Is this fair? Burn- 
 ing them within one week, since the cause came on ! I 
 am not going to say that she is guilty of treason ; but I 
 do say, when you put all these things together, you must 
 perceive that there is a most unkind, not to say cruel, 
 disposition towards Morgan Hinchman; occasioned either 
 by alienated affection ; by his having lived apart from her 
 after the miserable affair of the apple tree ; or by a pre- 
 ference for her other children, or a stronger adherence to 
 the monthly meeting and board of managers of the asy- 
 lum. It is plain for no man denies it no cloak can 
 cover it, the evidence proclaims it that she acts in con- 
 cert with the avowed adversaries of her son. 
 
 I wish, as I have said, to pursue the chronological order 
 of events, in the discussion of facts. Time is said to be 
 the discoverer of all things: and the most judicious mode 
 that can be adopted, where you have a case of any en- 
 tanglement, is to take it up in the order of time, and each 
 successive step will be explained by that which precedes ; 
 and thus you will have a regular course of deduction. 
 Your honor knows, we all know, let a man be embar- 
 rassed in investigation, if he has the dates, and order of 
 the events, it is a perfect Ariadne's clue, that enables 
 him to escape without difficulty. That's my practice it 
 answers me and I presume it answers others. 
 
 In the result of the course which is thus proposed, I 
 shall show you, that this is a most wanton and high- 
 handed attack upon the plaintiff's rights ; further aggra- 
 vated by the obdurate character and course of the defence, 
 and those engaged in it further aggravated by mental 
 reservations at which you were astonished! further
 
 302 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 aggravated by the concealment of papers, and the denial 
 of well-known and important facts, by these reputable 
 men ! honorable men ! 
 
 No man that has any pretensions to respectability, de- 
 nies his own hand. Any one that wears a clean shirt, 
 would scorn such quibbling and evasion, as have been 
 exhibited here by witnesses on the part of this defence ! 
 "Why, I assure you, there never was such an opportunity 
 for a cross-examination; your honor has perceived it, but 
 not wishing to weary you, I have sometimes passed it by. 
 The evasive character of the whole defence signatures 
 denied^-orders denied minutes kept back records viti- 
 ated and altered burning letters aye, our letters which 
 would have proved our sanity burnt during the progress 
 of this very case ! And such testimony ! On the surface 
 it is smiling and beautiful, but, when you dive below I 
 won't say it is " filled with dead men's bones," but it still 
 resembles very much " a whited sepulchre." 
 
 Let me give an instance. There was a reputable gen- 
 tleman as high as the highest, Mr. Scattergood one of the 
 managers of this asylum and as respectable as any man 
 among them. Your hon >r will remember that Mr. 
 Warder had put himself upon the court for a discharge, 
 upon the inability on our part to prove, that he signed 
 the order by virtue of which the plaintiff was confined; 
 and the ground of his application was that he never signed 
 the order! That I say nothing about. But gentlemen 
 of the jury, when Mr. Scattergood was called on the 
 other side ; and, by a mere random shot for I assure you, 
 I had no idea what would be the answer I happened to 
 ask, "Sir, do you know who signed the order of admis- 
 sion ? " He said, " No, I do not." I then proceeded, 
 "Did you ever speak to Benjamin H. Warder on that 
 subject ?" Says he to the judge, " Am I bound to answer 
 that question ? " " To be sure you are." " Well, yes I 
 did." My next question was, " Did he not admit to you 
 that he signed the order?" "Am I bound to answer
 
 HINCHMAN CASE. 303 
 
 that question?" "To be sure you are," replies the court. 
 " Well he did." Now you can see the difficulties we 
 have to wade through in regard to the snow-bank, &c. 
 (Though that melted some half dozen years ago, it is 
 treasured up to swell the catalogue of this man's eccentri- 
 cities.) And here, I may as well remark, in all my expe- 
 rience I never knew equal mental reservation. Here is 
 an honorable, high-minded man, who tells me he does not 
 know, when he does know ! That would be nothing ; but 
 by refusing or declining the questions that followed, it is 
 evident he knew what was required from him ; and when 
 driven to the wall, he confesses that Benjamin Warder 
 himself, told him that he had signed that very order. 
 "Well, now, what do you say. A man affirmed to tell the 
 whole truth! a strict professor! So with Dinah Taylor 
 I wish you would call her Diana a beautiful name, and 
 a beautiful woman, and all the most beautiful things 
 should be put together. "Well, what does Diana do? 
 "Why she gives you a terrible account ; making this man 
 out to be mad, because he drove h6r through a snow- 
 bank. "When she was examined here, as to where the 
 snow-bank was ; it was in the middle of the street, 
 or on the side of the street. What did he drive you 
 through for ? Why to bring me to the curbstone. Fire 
 and fury ! is this the manner in which we are to be baf- 
 fled ? This is all true, no doubt. I do not impute any 
 direct falsity to it Heaven forbid! but it is given in such 
 a sly manner which, I know, his honor abhors. There 
 is no moral difference between purposely evading a ques- 
 tion, and a positive untruth. So again, I could go 
 through a dozen occurrences of' a similar nature. This 
 shows why letters were burnt ; it shows why certain por- 
 tions of the correspondence can be got, and others not. 
 It is a very extraordinary case, let men speak of it as they 
 will. I don't think this system of strategy belongs to the 
 original school of Friends ; or else I do not understand its 
 character.
 
 304 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 Having exhibited a brief summary of the grievances 
 and wrongs of the plaintiff; I shall leave it to you, 
 through the medium of your verdict, to indemnify the 
 plaintiff to teach the defendants a lesson of obedience 
 to the law, and exhibit an example to benefit others. 
 
 Now, sir, I go to the evening of the 5th of January, 
 1847. On that evening, neither dreading nor thinking 
 harm, in pursuance of his ordinary business, the plaintiff 
 leaves his farm in Plumstead, in a neighboring county, 
 to attend the market in this city. Before his departure 
 and all this must be noted having recently employed 
 some new hands, he gave directions to his agent or super- 
 intendent to keep them closely to work ; to give proper 
 attention to the cattle for the righteous man is merciful 
 to his beast, and with his ordinary kindness, and with 
 the expectation of returning in forty-eight little hours, he 
 bade a tender farewell to his innocent children one of 
 whom, he was destined never again to see. Look at that 
 first stage in our progress. I will not embarrass or per- 
 plex you, by introducing anything that does not relate to 
 the subject. He left upon the farm, an affectionate wife 
 and three prattling infants those for whose comfort and 
 prosperity, in his own language in the language of his 
 letter, which speaks with the most miraculous organ of 
 his sanity those for whom he had endured privations, 
 those for whom he "would freely have borne all his toils." 
 That is the language of his letters. Could he at that 
 moment, carry your mind back to that point of time 
 could he at that moment, have entertained any presenti- 
 ment of what was about to befall him, within forty-eight 
 little hours, the echo of that simple word FAREWELL, 
 wou!d have sounded like the knell of departed joys de- 
 parted, never, never to return. Farewell, he might have 
 added, for six long, lingering months, to be spent in the 
 gloomy recess of a mad-house, where he could never get a 
 glimpse of liberty. As to his family, that is too tender a 
 subject to speak of now. It is the last touch of this pic-
 
 HINCHMAN CASE. 305 
 
 ture, of almost unparalleled woe. Bring it to yourselves ! 
 that is the test ? Place yourselves in his position, if 
 imagination can reach as far; or does it distance the con- 
 ception of your minds ? 
 
 He arrives at Philadelphia ; attends to his duties faith- 
 fully ; disposes of his produce ; regularly collects his rents ; 
 prepares to see his agent, Mr. Saurman ; and renews a ne- 
 gotiation with Ezra Smith with regard to a loan of $3,000, 
 which was to be procured for him at an interest of 5 per 
 cent., for the purpose of relieving his farm. There is no 
 act without its reason and a consistent, proper and judi- 
 cious one. Do not all these facts, corresponding and con- 
 curring, make out the perfect sanity of the plaintiff? 
 Does he borrow money at an excessive interest ? No he 
 borrows like a prudent man, like an honest man, to meet 
 an approaching debt due in April ; with an eye to thrift 
 he borrows it, at one per cent, less than his former con- 
 tract. Pie makes his arrangements in a formal, profit- 
 able, orderly, and discreet way. Where is the man here, 
 who could have done it better ? If a man act appropri- 
 ately in the business in which he is concerned in all its 
 branches, and never fails to indicate a just comprehension 
 of his position : what other evidence can you have of his 
 sanity than that ? I don't mean a single instance, in all 
 its instances in all method in all his relations. If any 
 man if Morgan Hinchman is to be declared a lunatic 
 on such evidence ; there is not a man in Bucks county, 
 says one of the witnesses (John Rich), that cannot be de- 
 clared insane. There was nothing insane in this step : 
 there was no '* wasting " of his estate, as they have sworn. 
 If there were any fault in him at all, it was rather too 
 much nicety, too much calculation, but no " wasting ;" on 
 the contrary, as I have said, his course was characterized 
 by ordinary intelligence, thrift, prudence, and precaution. 
 Whatever little anxiety he exhibited, may it please your 
 honor, about this time, was perfectly natural. These things 
 explain each other. All of these matters, which have 
 
 20 
 
 I
 
 306 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 been conjured up for the purpose of indicating insanity, 
 are perfectly natural and rational. There was a judgment 
 of $1,000, in favor of Heston falling due the 1st of April, 
 1847 ; and the mortgage to Brown, which he desired to 
 pay at that time. Is it unnatural that he should show 
 some little ordinary anxiety ? Is that evidence against 
 his reason ; or is it not evidence in support of it? They 
 will give you these detached matters without any circum- 
 stances of explanation. Most men can be proved mad 
 by such means. I say, he must be a madman, or worse, 
 who will endeavor, on such a basis, to build up the sus- 
 picion of insanity. 
 
 The conversation Tield with Michener (I don't speak of 
 recantation Michener I speak of lawyer Michener), a 
 short time before the plaintiff left his quiet home, showed 
 clearly what were his means of payment ; and whatever 
 fears were, entertained, as to the payment by Hinchman, 
 were dispelled. He explained satisfactorily the sources 
 of his getting money ; and satisfied the claimant by an ex- 
 hibition that has never been denied corresponding with 
 the statement, since verified that he was perfectly com- 
 petent to pay the original sum owed by him ; and Mr. 
 Michener being satisfied, would never have pressed it, but 
 for this calamity, which brought ruin upon his house. 
 But they say, what did we get of his property did we 
 not give it back to him? Aye ! you fought to the last 
 you fought and paid lawyers oat of his estate to keep 
 him out of his estate. Is that giving back his property is 
 that a matter of mere dollars and cents. You have sold 
 his entire property and stock ; as well as broken him up 
 root and branch : and do you talk about giving him back 
 his property ; you might as well give him back the body 
 of his child, robbed of life, and ask him to console him- 
 self in the contemplation of his own irremediable loss. 
 This is an abuse, an aggravation of the offence. 
 
 Then the ridiculous matter, that is brought into the 
 case! selling two pounds of butter, because he wished to
 
 HINCHMAN CASE. 307 
 
 collect money to pay a bond (every little helps) ; and taking 
 the clover seed to Dr. Noble which Mrs. Noble did not 
 understand ! These are wonderful indications of the want 
 of sanity : clover being scarce with the doctor, who was 
 on a farm, and money being scarce with Morgan, it was 
 natural for one to wish to sell it, and I don't know 
 whether it did not turn out that the other bought it. 
 This is a very dangerous scheme to cast your drag-nets 
 over eight years of any man's life. 
 
 Then, again, his desire to make sale of his Marshall 
 street property, to pay off his mortgage! His great pas- 
 sion was his farm. Collecting every jeent that was due, 
 is reconcilable with a correct and sound view of his pecu- 
 niary condition at that time. Well, then again, please 
 to call to mind Mrs. Wright's testimony a harmless, 
 unoffending, estimable woman, I have no doubt ; I have 
 not a word to say in regard to that. She says he came 
 hastily into her house. To be sure he did ; he was in a 
 hurry to leave town ; he had business to do ; he had seen 
 Mr. Bispham ; he was going to Mr. Pepper's, still bent on 
 that one absorbing object. Mr. Pepper is not in ; and he 
 returns and takes his dinner at Mrs. Wright's, and there 
 ventures to count his money there is certainly no harm 
 in that. He was a young man ; he was just about de- 
 parting to the farm, and there were a thousand matters 
 to induce him to count his money at all events, it was 
 entirely consistent with sanity. All these matters belong 
 to the same category, and receive the same explanation. 
 He expects, as you remember, to overtake Mr. Smith at 
 Jenkintown ; and, with a prudence that is remarkable, so 
 arranges it, that, if he does not happen to overtake him 
 at Jenkintown, Mr. Smith and the lender of the money, 
 are to meet him at his place in a few days ; when the 
 money is to be loaned, the circumstances are to be ex- 
 plained, and the security is to be given. Can there be 
 anything more regular or right ? This is on the 6th, the
 
 308 FORENSIC SPEECHES OP DAVID PAUL BROWN. 
 
 day before the eventful morning when he was robbed of 
 every object dear in life. 
 
 I may mention, properly, in this connection, that this 
 was no hallucination. The lender, by this very appoint- 
 ment, came down with the money ; and the whole pro- 
 jected scheme would have been accomplished (it being 
 some eight or ten days after the period that -I have re- 
 ferred to), when he is met with the astounding intelligence 
 that Morgan Hinchman is a madman. Now, sir, bring- 
 ing these matters to a focus, you will understand what 
 their bearing is. The plaintiff could have paid off his 
 mortgage ; he could have relieved himself from his anx- 
 iety ; his money was all ready ; he had but a thousand 
 dollars to take care of. He would have gone on prosper- 
 ously, and been a blessing to his family ; and having his 
 liberty, would have still toiled, at the expense of every 
 possible earthly convenience to himself, for the benefit of 
 his wife and little ones. 
 
 After these events of the afternoon of the 6th, new 
 actors present themselves on the stage the scene shifts. 
 A grand divan is to be held at Mrs. Hinch man's on the 
 night of the 6th. The mother, Elizabeth Shoemaker, 
 Anna "W. Hinchman, Edward Richie, Samuel Richie 
 and Mrs. Hinchman, were there. Bear that in mind the 
 number of six is a fatal number here, it seems they have 
 moved in sixes altogether six when they arrested him 
 six in the inquisition six everywhere an even number, 
 but an odd undertaking. Of the particulars of their de- 
 liberation we are not distinctly informed ; and we must 
 therefore look to the practical results, to understand what 
 they determined to do, from what they have done. I can 
 only say for the honor of the wife, and woman's love, 
 that when Margaretta Hinchman was subsequently asked : 
 u did she ever consent in word, thought or deed to the 
 perpetration of this outrage upon her husband" the 
 father of her children she said " she never did." It runs
 
 HINCHMAN CASE. 3C9 
 
 counter to the current of the feelings of every noble 
 woman. 
 
 Elizabeth Shoemaker says that Morgan lost his mem- 
 ory : he was one entire memory. He seemed to concen- 
 trate all that ever passed under his knowledge ; and he 
 acted correctly with reference to it. That is the reason 
 why I asked Dr. Evans the question will not a man who 
 has a delusion, as you say, gambol from his subjects ; mis- 
 conceive or misrepresent what he has done or said, just 
 before? "Yes, that is considered the great test." Sirs, 
 no physician ever supplied that test. Shakspeare supplied 
 the test ; a man whose mind embraced all things whose 
 genius pervaded everything, who was a better chemist 
 a better metaphysician a better lawyer a better doctor 
 a better gardener a better everything than almost any 
 man, nay not almost, that is short justice, than any 
 other man. What does he say ? He gives two tests. I 
 will not go to Horace, for he is not fit to hold a candle to 
 Shakspeare. He gives you two tests. The first is, quick- 
 ness of pulse. Hamlet's mother plays the same prank 
 that is played here, and sends her son not to the asylum, 
 but to England for his insanity. See how he answers 
 when accused by his mother, of ecstacy which signifies 
 insanity 
 
 " Ecstacy f 
 
 My pulse, as yours, doth temperately keep time, 
 And makes as healthful music, it is not madness, 
 That I have uttered : bring me to the test, 
 And I the matter will reword ; which madness 
 Would gambol from." 
 
 Two of the best tests known to metaphysicians one a 
 strictly medical test the great excitement of the pulse 
 the other re-wording of the matter. And sir, there is a 
 remarkable case which I know your honor will take 
 pleasure in referring to, or in allowing me to refer to re- 
 lated by Sir Henry Halford, physician to George III, 
 and the head of the medical faculty, at one time, through-
 
 310 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 out the world. He tells you that he never would have 
 been able to detect insanity, if he had not applied the test 
 that Shakspeare gives. He begins it, by the by, with 
 this very quotation from Shakspeare. (Reads from Hal- 
 ford's Essays.) 
 
 Saturday. May it please your honor: the time allotted 
 to complete, or rather to terminate for it may scarcely 
 be considered, complete the course of the investigation 
 originally proposed to you, is too short, to tell you how 
 short it is. And, therefore, gentlemen of the jury, with-, 
 out resuming the former course of observations except so 
 far as it may be absolutely necessary in order to its con- 
 tinuance without attempting to review it in any way 
 (considering that " by gone is by gone") ; I shall address 
 myself to that which remains. I have but a single re- 
 mark to make and that rather in the way of apology 
 and that is,that you must not suppose that I have over- 
 looked many matters to which I may not particularly ad- 
 vert ; but that you should be inclined to excuse the omis- 
 sion, when you bear in mind that it is attributable in a 
 great measure, to the desire to contribute to your comfort 
 or convenience. The time is short, sir, as has been said ; 
 but I am not certain that it is not adequate to the neces- 
 sary purposes of the argument. 
 
 You may remember, gentlemen, I took leave of you 
 yesterday, after having adverted to the grand divan, as- 
 sembled at the house of Mrs. Eliza Hinchman upon the 
 night of the 6th. I only recur to that as a sort of start- 
 ing point for the course I am now about to pursue ; and 
 for the purpose of asking you to bear in mind that of the 
 six assembled at that time, there were Edward Richie, 
 Samuel Richie, Anna W. Hinchman, and Eliza aeth Shoe- 
 maker, four defendants. The mother was there ; she ia 
 not one of the defendants ; and the wife was there she 
 is not embraced. 
 
 Now, gentlemen, the next stage in our journey presents 
 a new scene. Immediately from the house of Eliza Einch-
 
 HINCHMAN CASE. 311 
 
 man, where these four persons were assembled, Edward 
 and Samuel Richie proceeded to the house of Mr. White ; 
 and they induce Mr. "White to join with them in the effort 
 to secure Morgan Hinchman, although as Mr. White him- 
 self says, he " never saw anything irregular in Morgan 
 Hinchman in his life." They induce him to call at the 
 house of Robert Richie, the father. He does not suc- 
 ceed in finding him. Edward and Samuel Richie, who 
 figure at every point, go with him next to the tavern. 
 Now where there are bad beginnings where there are 
 hypocritical schemes resorted to depend upon it, in nine 
 instances out of ten, the sequel will be worthy of the in- 
 troduction. 
 
 They build the whole proceeding upon his sanity, while 
 they accuse him of insanity. Well knowing that there 
 had been a negotiation between Mr. White and Mr. 
 Hinchman, months before, in relation to the house in 
 Marshall street, they suggest to Mr. White to make that 
 the basis for the postponement of Mr. Hinchman's depart- 
 ure to the next morning ; in order that they may then ar- 
 rest him. What do you say to this ? There is no mental 
 reservation about it : I will venture to go so far as that. 
 But, is not there a scheme, a plot, a combination ; or indi- 
 cation of pre-existing conspiracy? Mr. White goes in, 
 sir, and comes out, and does not find Morgan Hinchman. 
 It is the night before poor Morgan's departure exhausted 
 and worn out with the course of the day's events, or loss 
 of rest the preceding night, incurred in his line of duty, 
 he is reposing upon a buffalo skin, which rests upon a bench, 
 and Mr. White did not perceive him. Then comes in Mrs. 
 Richie, while the other Mr. Richie, being a sentinel, ia 
 looking in at the window just recall this scene. Mr. 
 Richie discovers him; and instead of going up like a 
 man and a Christian, and employing some measures for the 
 purpose of ascertaining whether the suggestions that had 
 been made in relation to his sanity, were well founded for 
 it does riot appear that he had had any intercourse with him
 
 312 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 for months instead of going up and saying, " Morgan, I 
 wish to have some conversation with you," and then talk- 
 ing over matters to satisfy his mind ; he skulks and shrinks, 
 and dare not encounter the eye of his victim. Thus 
 " consicence doth make cowards of us all." Mr. White 
 is to do the work ; for being innocent, he is bold. He 
 acts upon the suggestions of Samuel Richie who figures 
 most unfavorably in every branch and scene of this trans- 
 action, from beginning to end. Mr. White rouses Mr. 
 Hinchman, shakes hands with him the old habit of be- 
 traying with a kiss, having grown into disuse. How did 
 he look ? Perfectly well. Was there anything irregular 
 about him? Nothing at all. Did he talk rationally? 
 Entirely so. When you spoke of the house, did he re- 
 member the arrangements previously suggested ? Yes, sir^ 
 he told me I had better buy the house. Now, may it 
 please your honor, you may make any man crazy when 
 the wind is north-nortnwest ; but when it is southerly, he 
 may distinguish between " a hawk and a handsaw." Still, 
 there is not a man that 1 have the honor to address, that, 
 embracing eight years of his life, can exhibit a course of 
 character more consistent with honesty ; and one portion 
 more consistent with another ; and more entirely adapted 
 to right reason, than the plaintiff has done. Well, he 
 makes the appointment, and what does our friend, Mr. 
 Williams, say to this? for whatever he says is entitled 
 to regard but this is rather an astonishing manifesta- 
 tion of candor ! He says they don't deny that this was a 
 contrivance a scheme. No ! they don't deny it ; because 
 we have Mr. White to prove it. This is another specimen 
 of liberality. So, Mr. Scattergood doesn't deny that Ben- 
 jamin Warder signed the order after we had got the fact 
 Irom him. Mr. Benjamin Warder doesn't deny it after 
 Mr. Scattergood proved it. I want you to understand 
 this. If you once understand it, you will have no diffi- 
 culty in relieving yourself from embarrassment. 
 Now does the gentleman ask me for a motive ? Why
 
 HINCHMAN CASE. 313 
 
 the very lust of power, in little men, is a sufficient motive 
 for nine-tenths of what they do. Has that never struck 
 you ? their very desire of playing the despot the desire 
 for notoriety in consigning a fellow man to a public or any 
 other institution the desire of notoriety in a profession of 
 charity, in interposing to assist the wife as they would 
 have us to understand the wife who had not one pirti- 
 cle to do with the matter ! But there are other motives 
 that, in the progress of my remarks without making 
 them now distinct and independent subjects of inquiry 
 will present themselves clearly to the mind. 
 
 The next morning, who comes ? Why they were drum- 
 ming up all the recruits. You ask me to show that there 
 was a combination. By some strange influences, at all 
 events some sullen influences, as they will prove to be 
 these six men all assemble punctually at eight o'clock. 
 How do they come together ? Do you want me to prove 
 that they sat in conclave that they pre-arranged that 
 Mr. Elkinton was to play the Napoleon of this iron band 
 that he was to be the leader that when force was 
 necessary, he was to suggest it that Mr. Whitall was to 
 play police officer, assisted by Mr. Edward Richie, who 
 was posted inside of the prison ? We are forced to sup- 
 pose, from all this, that it was well understood by the 
 friends it was very systematic either for good or evil. 
 There they were I have gone through with what was 
 said, and I mean to go through with it again. The re- 
 marks of Morgan Hinchman, his remonstrance, his desire 
 to settle up some pending transactions in relation to 
 property nothing will do you must go; and if you 
 won't go willingly, you must go by force. One takes him 
 on one side, another on the other, and drag him down 
 stairs there, says my learned friend, " he placed his hand 
 upon the bar ;" that is very true. But he seized the bar, 
 and attempted resisting as far as he could with propriety ; 
 because, let the battle end as it would, he would be the 
 sufferer in public estimation he would have cloven down
 
 314 FORENSIC SPEECHES OP DAVID PAUL BROWN 1 . 
 
 his own character ; for come what must, the people would 
 understand that he was an alleged madman. He was 
 sensible enough for that ; besides he was in the hands of 
 the overseers that was enough ; he was " cribb'd, cabin'd, 
 and confined." Well, what do they do? They wrench 
 him away with violence ; they force him into what ? Into 
 his own carriage, says our learned friend. Is that a miti- 
 gation of the offence ? A man's carriage is valuable only 
 to him, if I understand it rightly, because he goes in it 
 when he pleases, and comes out when he pleases. Does it 
 diminish the enormity of the crime, sir, that at the same 
 time they control his person, they exercise control over 
 his property ? Is it not rather an aggravation of the 
 original offence ? Why, allow me to say, gentlemen of 
 the jury, that those horses, had they been sentient beings, 
 would have blushed at the occupation in which they 
 were engaged. Yet these gentlemen, said to be respect- 
 able, and to a certain extent entitled to regard by virtue 
 of the power which they had been accustomed to exercise 
 and in the reliance that they had been accustomed to 
 repose upon the confederated strength of the institution, 
 or its character, if you please actually do such things in 
 public view and in broad, blushing daylight, as any ruf- 
 fian in the land, would shrink to look upon. 
 
 They take him, sir six of them (Mr. "Whitall and 
 Mr. Richie are charioteers by turns) and they deposit 
 him in the asylum ; which has been so beautifully depicted 
 to you with deer parks, delightful grounds and gravel 
 walks, its springs and fountains, and all that a course 
 of exhibition that has been resorted to for the purpose of 
 seducing you from your fealty to the law. This is very 
 captivating it resembles the beautiful plumage of the 
 peacock ; but when you come to the substantial portion 
 of the argument, and the ground upon which it rests, 
 you will be disgusted with its odious and abhorrent legs. 
 A beautiful paradise ! a paradise surrounding, or enclos- 
 ing, if you please, Hesperian fruit ! All this is charming!
 
 HINCHMAN CASE. 815 
 
 but, do you see the dragon beneath it ? Do you look into 
 the cells and see the wreck and ruin of the human mind ? 
 Do you see the course of treatment, or confinement, calcu- 
 lated to produce results with any man who is sane; as 
 terrifying as those produced by a visitation of Providence ? 
 
 However, I come there. Now fancy to yourselves the 
 condition of this man within twenty-four, or forty-eight 
 short hours, translated from his happy home, without pre- 
 monition, or even implication of notice deceived, deluded 
 and betrayed, by craft, artifice, and hypocrisy in every 
 shape. Imagine if you can, for a moment, that condition 
 to be yours. What have you to say to it ? 
 
 When the curtain next rises where, alas ! do you find 
 him ? The inmate of a melancholy mad-house ! He goes 
 into the day-room, buffeted, tortured in body and in 
 mind. The very first thing that he does, as if the fates 
 were pouring all their quiver on him he seeks to rest 
 himself; to remove his boots ; when the gruff keeper tells 
 him it is contrary to rule within one hour after he is re- 
 ceived in this hospitable receptacle. What does he do ? 
 He mildly excuses himself by stating his sufferings. 
 Why, says Mr. Biddle, he does not rave, or break out, as 
 was natural, into any storm or tempest of fury. No, they 
 had put him past that. It is lucky that he does not. 
 Suppose that he had shown excitement, what would have 
 been the result? They say when he does anything he 
 must be mad ; when he does nothing, he must be mad ; if 
 he is quiet, he is moody ; if he talks, he is excited ; if he 
 is inclined to sleep after a day of toil, that is an indication 
 of his insanity ; if he wake up and looks a little wild, he 
 is stark, staring mad. Look at these things, once for all. 
 I cannot pause to go over them. Nay, more than that, 
 if he make a speech in Quaker meeting if he has the 
 hardihood to speak for one minute (the shortest speech, I 
 believe, on record) before these anointed elders and over- 
 seers, and looks frightened and Heaven knows he had 
 cause Ezra Comfort doesn't understand him, and thinks
 
 316 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 it was very incoherent and wild. I should like to see the 
 incoherency of a speech of one minute. As to looking 
 wild, I have no doubt any man summoned before such a 
 tribunal as that, would look wild where they don't decide 
 according to the views of the majority, though there 
 should be one hundred and fifty to three ; but according to 
 the weight of the meeting, that is in favor of the three ; thus 
 inverting the whole republican order. That is not all. 
 Look at Priscilla Jones, a tower of strength in herself, 
 and an old maid I don't speak of it as a reproach, but 
 for the purpose of explaining some of her fantastic 
 notions. She goes to meeting, and sees Morgan going 
 there also. He picks up his boys in the fields, and they 
 have no hats on. That is a most extraordinary and un- 
 pardonable offence. If each of them had come with 
 twenty hats on like Knickerbocker's Heroine, with 
 twenty petticoats it would have been all right, no doubt; 
 but to come without is unpardonable. He proposes to 
 take her home ; she does not seem much inclined, but at 
 last concludes to go with him. Then, because there is 
 something refractory in the horse, on account of some dis- 
 arrangement in the harness, he gets out on one side to 
 arrange it ; and as might have been expected, she gets out 
 on the other. This is most ridiculous; but it is not my 
 fault. And this forms one of the items, which contribute 
 to make up the sad melancholy insanity of Morgan 
 Hinchman. What else ? Why, says my learned friend, 
 he goes to Mrs. Jones' house at ten o'clock. Now, gentle- 
 men of the jury, are all the acts of his life to be tortured 
 in this way perverted and misconstrued for the purpose 
 of extorting proof against this unhappy man ? Where 
 else should he go? He was remote from a tavern; and 
 besides being a sober man, he does not wish to go there > 
 and if he had, that would have been considered a strong 
 mark of insanity, for there is no escaping them it is 
 impossible. 
 
 Well, he goes there and takes his supper I shall be
 
 HINCHMAN CASE. 317 
 
 careful not to take my supper in Bucks county, out of a 
 tavern. He goes to bed. Wonderful to relate! He gets 
 up in the morning, and rises before any other one in the 
 house ; then this good lady I won't call her old, that is 
 an unpardonable sin,- too hearing him walking about, 
 takes for granted there is something wrong. When he 
 came she was given to understand, that he, fully intent 
 upon speculation, was desirous to see Mr. Brown in regard 
 to a purchase. Perfectly reasonable and right! And 
 being desirous of seeing him ; before beat of drum, in the 
 morning, after having enjoyed the hospitality of the 
 family, he anxiously moves back and forth until this lady 
 comes down, when he declares his design. Then what 
 does he say ? u I should have gone away without waiting for 
 you, but I thought you would think me. crazy" a very ordi- 
 nary phrase " and therefore I have remained." Gracious 
 powers ! if that is to be the course by which insanity is to 
 be established, good-bye to security in man. I am not 
 going through all these matters I merely cursorily advert 
 to them. I ask you to examine them, and carry out the 
 thought I suggested in the former part of my argument, 
 which is this ; that none of these things were known or 
 thought of, at the time this arrest was made ; but having 
 by a false step involved themselves in difficulty irremedia- 
 ble, they have sounded their trumpet through the ranks 
 of their confederates, and brought forward a sort of ex 
 post facto history of the transaction, upon which they 
 attempt to sustain a most flagitious course, adopted by 
 them in regard to this plaintiff. That is the true inter- 
 pretation. I will not return to it again. My object is 
 now to interweave into the web of this case every one of 
 these defendants ; without making the inquiry as to their 
 identification with the primary outrage, a subject of inde- 
 pendent consideration. 
 
 He is consigned to a maniac's cell. There are special 
 orders for his strict confinement he is not left upon the 
 general rules of discipline he is not left in the ordinary
 
 318 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 way he is not left upon the certificate of his phj'sician. 
 Don't be led astray, and induced to believe that Dr. Kite 
 was ever his physician. Dr. Kite was one of his persecu- 
 tors. Dr. Kite was the man who united with the mother 
 in the original communication to the meeting, with regard 
 to the aft'air of the apple tree. Dr. Kite was the man, 
 together with Mr. Willits (the tall gentleman whom you 
 may remember), who waited upon Morgan over and over 
 again. Mr. Willits stated, as the result of the conversa- 
 tion he had with Morgan, that he was refractory and 
 would palliate that is he would not confess ! He would 
 not confess (most extraordinary system of jurispru- 
 dence!) because he would not confess the crime, but 
 would deny it, they thought he was incorrigible. " He 
 said he was to blame, and regretted it ; but what they 
 charged was not right." They reported, in a prejudicial 
 state, to the meeting ; but strange to say, the meeting 
 certify, subsequently, that he was a member in good 
 standing. What is the meaning of this? They are not 
 " tricks upon travellers," but tricks of one meeting on 
 another. Don't let us be misapprehended. They certify 
 him to be a member in good standing ; which they never 
 should have done if they had not thought him so. How- 
 ever, Dr. Kite prepares his certificate. Under that, Mor- 
 gan Hinchman is confined as an insane man. Now this 
 certificate of Dr. Kite has no bobtail no such appendage 
 as is required, setting forth residence, age, disease, symp- 
 toms, &c. It shows a most unholy haste. There is that 
 in it which is most truly extraordinary. He knows Mor- 
 gan Hinchman to be insane he knows it ; and yet he has 
 not seen Morgan Hinchman for four months, as he subse- 
 quently confesses. When he was called upon, and was 
 asked to explain how he could sign a certificate of that 
 character, stating u that he knew Morgan Hinchman was 
 insane," he says he knew perfectly well six months ago 
 that he would become mad just about that time. Look at 
 this. It is a very serious matter, gentlemen. It is
 
 HINCHMAN CASE. 319 
 
 nothing to be certified into a mad-house in our present 
 condition ; but to be certified by anticipation or prospect, 
 or even retrospect, is a little too much. Suppose they al- 
 leged what was the condition of his body ; then we should 
 have had something to have laid our fingers upon, in- 
 stead of engaging in metaphysical discussions. But to 
 this moment nobody has shown that he was ever sick. 
 Perhaps that was a crime that he never had occasion for 
 the doctors. It is true, they made him sick, as well they 
 might, after he was confined in the asylum ; but until he 
 got there, I ask any one to show me where is the human 
 being, medical or otherwise, who has ever rendered him 
 a service as a physician. 
 
 They take the plaintiff's account in the hospital, for 
 the purpose of showing the state of his body ; and at 
 that time they contend he was mad. When you under- 
 stand that he was appealed to (towards the close of his 
 confinement), to acquiesce in the views of the doctors 
 " that the moment he admitted that he was insane, they 
 would consider him sane," you may suppose Morgan 
 Hinchman was sane enough to know, that if he did not 
 comply with .their theory, he never would be released at 
 all. Here is Dr. Kite's certificate ; and where Benjamin 
 Warder signed it, Heaven only knows. Mr. Bettle never 
 saw that order until it was brought to town. There is 
 much mischief here. Mr. Bettle says he has no recollec- 
 tion of ever having signed such an order of admission. 
 Now observe the management. He is not brought in, as 
 long as the question could be agitated whether Mr. 
 Warder signed it or not. But the moment Mr. Scatter- 
 good puts it beyond the necessity or reach of argument, 
 they introduce Mr. Bettle. And it is most remarkable 
 that Mr. Bettle, who appears to have signed it, did not 
 remember that he ever signed it at all ; or that Mr. 
 Warder had anything to do with it. I don't consider 
 that an overruling circumstance. But I want to show 
 you what the memory of man is. After the lapse of two
 
 320 FORENSIC SPEECHES OP DAVID PAUL BROWN. 
 
 years while he professes to state words and minute cir- 
 cumstances he forgets that he signed his name to the 
 paper in question, when it makes adverse to the interest 
 of the cause. Benjamin Warder undoubtedly signed it ; 
 and Benjamin "Warder is not to escape. He is one of the 
 persons to whom Mrs. Hinchman sent an invitation to 
 the grand divan. If you will connect probable cause 
 with the actual effect, you will have no difficulty in un- 
 derstanding it. The agent of Elizabeth Clarke, a woman 
 who has figured in another scene the individual who 
 interposed to rescue Mrs. Dinah Taylor from the terrors 
 of a snow bank. 
 
 They seem to suppose that in the establishment of con- 
 spiracy, it is necessary that we should bring every man 
 in contact with another, to show joint guilt. It is no 
 such thing. I will convict six men of conspiracy, and 
 never show that they were together that they ever 
 actually communicated one with another. Your honor 
 may perhaps remember the famous case, decided by Lord 
 Mansfield, where a family of card makers was in a pros- 
 perous business ; and it happened that some rival artisans 
 in their line, regularly had glue put into their paste pot. 
 Each one of the six was shown to have been separately con- 
 cerned ; but no man knew of any correspondence between 
 them. The relationship that existed in this case was 
 manifested by the consistency of the conduct of the 
 whole six. They were all engaged in the same medium ; 
 prosecuting the same purpose ; although they were 
 never seen together ; being of the same family, engaged 
 in the same trade ; and in the same rivalry: when you 
 combine all these together, you cannot fail drawing the 
 inference that they were combined together. So it is in 
 respect to this case. We are not to be eluded in this 
 way. 
 
 But to return. The plaintiff is, as I have said, deposi- 
 ted in a mad-house by this certificate by this interfer- 
 ence on the part of the gentlemen, in the way that I havo
 
 HINCHMAN CASE. 321 
 
 stated and there he remains for six long months. He is 
 kept in strict confinement more strictly confined than 
 any other man in that house. Eemember that. Mr. 
 Garrett says, in excuse for that strictness, that such were 
 the orders of his friends. This is a matter my learned op- 
 ponent seems to have forgotten. Undue strictness un- 
 usual severity, applied to a man in his condition, by the 
 order of his FRIENDS. This is the declaration of Mr. Gar- 
 rett, one of the agents, binding upon him ; and showing 
 the general character of the transaction. And when you 
 come to the admission, " that it had been a mere family 
 quarrel, and if he would arrange his property, there 
 would be no more of it," or something to that effect ; the 
 secret is all out. Here he remains night after night, 
 month after month, as I have said, in worse than a char- 
 nel house ; surrounded by the fragments, if I may use the 
 phrase, not of the body, but of the immortal mind. His 
 condition rendered more intolerable from his not sharing 
 in any of the delusions of those by whom he was sur- 
 rounded. He, a sane man, encompassed by gibbering 
 idiots and raving maniacs enough to drive any man rnad 
 for there is something contagious in moral insanity, as 
 in other diseases. There, alas ! he sits 
 
 No pleasing memory left forgotten quite 
 
 All former scenes of dear delight. 
 
 Connubial love parental joy, 
 
 No sympathies like these his mind employ, 
 
 But all is dark within all furious black Despair. 
 
 Let us step out of the mad-house for a moment, and 
 see how his mother is engaged. She goes on the 8th, in 
 the evening (the day after he was confined), to Mr. Eli K. 
 Price. (Interrupted by opposite counsel.) " The petition 
 was sworn to on the 9th." That will do. That is coming 
 to the "chalk." I only want something definite. Does 
 not your honor remember that it was part of the argu- 
 ment, that the wife, accompanying Mrs. Hinchman, went 
 
 21
 
 322 FORENSIC SPEECHES OP DAVID PAUL BROWN. 
 
 to Eli K. Price, and there witnessed the oath to the peti- 
 tion, thus making herself guilty of moral perjury? Mrs. 
 Morgan Hinchman was safely at Morgan Hinchman's 
 farm on the 9th, in company with Mr. Richie. (Inter- 
 rupted by counsel for defendants.) I have no wish to 
 steal any conquest. I wish to come at it fairly. I say 
 that Forkner and his wife, and Hall, all say, that Samuel 
 Richie, Mrs. Hinchman, and Elizabeth Shoemaker, 
 arrived on sixth day (which is the 8th of the .month) ; 
 and that Samuel Richie remained there until the next 
 Monday, or second day. How could Mrs. Morgan Hinch- 
 man be present with Mrs. Eliza Hinchman at the time of 
 taking this oath on the 9th, at Philadelphia, when she 
 was at Doylestown, which is twenty miles off'? It was 
 executed on the 9th. (Discussion between the counsel.) 
 The argument of my learned friend was, that Mrs. Mor- 
 gan Hinchman was guilty of moral perjury, because she 
 stood by and approved of it. Now Mrs. Morgan Hinch- 
 man was twenty-five miles oft' on the 9th. How then 
 could she approve of it on the 9th? That was the bulk 
 of his argument. If this can be answered, I am ready to 
 hear the answer now, or at any time. And yet she is said 
 to be guilty of moral perjury for joining in an oath an 
 oath which she never knew of. There is nothing that 
 can be relied upon, in this inconstant, transitory world. 
 See what memory is, when it comes to words and to 
 dates. All that argument, goes for nothing. She never 
 did approve of it. I am anxious to retrieve an honest, 
 artless woman from the imputations of injustice. These 
 things were carried on in secret covertly carried on. 
 
 "When they arrive at Plumstead, what else takes place ? 
 "Why, do you forget? They say that Elizabeth Shoe- 
 maker had nothing to do with it. I will show you that 
 she was as active as almost any other person engaged in 
 the matter. Don't you remember the whispering con- 
 versation between Elizabeth Shoemaker and Samuel 
 Richie ; in which she objected to sending Forkner to
 
 HINCHMAN CASE. 323 
 
 the almshouse, because it might lead to disclosures? Do 
 you remember that ? You see I aru interweaving these 
 people as I proceed. When Forkner and Richie go to 
 the asylum, Forkner asks Samuel Richie to be permitted 
 to see Morgan. Richie told Forkner that he was " down 
 there," whether he pointed to the south, or in a more 
 dangerous direction, I do not know. But, when ques- 
 tioned more particularly, he said he was in the asylum 
 that Morgan was to be considered a dead man. I was 
 about to say, I almost wish he could have been so con 
 sidered. Death would have been a blessing to him. 
 " That he was to be considered as though his horses 
 had run away with him and killed him;" and the infer- 
 ence was that Mr. Richie was to be the executor. He 
 was certainly consigned to a living death. How far he 
 would be justified in being executor, I will leave to 
 others. 
 
 Well, sir, they go to the asylum ; there a very touching 
 scene is presented. Jesse asked to be permitted to see 
 him. What harm could there have been, according to 
 the strictest discipline ? No, he cannot be allowed to see 
 him. Why not? because "he has got his head shaved, 
 or he may be having it shaved now." Look at this 
 very insignificant, to be sure, but making against them, 
 when it tends to show what were the motives, and what 
 the direction of these motives. Well, while they were 
 talking, this man, Forkner, not being allowed to go in, 
 looking up into the second story, saw poor Morgan, look- 
 ing, not through an iron grating, but through panes of 
 glass with iron sashes. I give you this as the most fa- 
 vorable exhibition you can have of the institution. Mor- 
 gan signified that he would like him to go round and 
 come in at another gate. Just then -Mr. Richie came 
 out ; and poor Forkner says be was moved to tears in 
 seeing Morgan appearing exactly as he always had. That 
 is his simple mode of expressing it. He said to Samuel 
 Richie, in the fulness of his heart, "I would give ten
 
 324 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 dollars, poor as I am, to have one minute's conversation 
 with Morgan." 
 
 There is a manifestation, not of the feelings of a culti- 
 vated man, but of an unsophisticated man, retaining 
 those warm emotions that were infused into him by his 
 Creator. "No, you cannot do that;" and he is car- 
 ried off. 
 
 Next, the defendants go through all this machinery in 
 relation to the sale of his property killing the hog, not 
 the fatted calf returning and disposing of the property 
 with an unholy haste. There is an entire mastery exer- 
 cised over that farm by Samuel Richie and the rest 
 every thing meddled with and. managed by them ; this 
 poor, heart-broken woman scarcely comprehending what 
 had been done or what was about to be done, could not 
 oppose any resistance to the power by which she was con- 
 trolled. Here they are acting upon remember that the 
 supposition that " Morgan's horses had run off with him, 
 and killed him," instead of their running away with him 
 and horses and they go on using the property as if it were 
 their own. But that is not all after, may it please your 
 honor, they have got the affidavit that has been made so 
 much of by Mr. Williams it is forwarded to Doylestown ; 
 and Mr. Du Bois, in the month of February, obtained 
 from the court the appointment of John D. Miche- 
 ner as the commissioner. John D. Michener, as that 
 commissioner, received the commission, on the night it 
 was granted, from Samuel .Richie himself. Don't you 
 see how they are connected ? we cannot move an inch 
 with one, without running foul of another. I cannot 
 trace all their dark and secret meanderings ; but what 
 they do in public is what we can trace and there is no 
 room for any other inference than that they were asso- 
 ciated, soul and body, in this case. What does Mr. Miche- 
 ner do ? He comes down immediately, and arrives upon 
 the evening of the 4th, and takes up his lodgings at the 
 house of Mrs. Hinchman ; and in the morning she accom-
 
 HINCHMAN CASE. 325 
 
 panies him to Mr. Wm. Biddle, one of her friends and one 
 of these defendants and Wm. Biddle accompanies the 
 commissioner, with that commission in his hand, down to 
 Eli K. Price, and there he takes leave of them. Now they 
 say Wm. Biddle had nothing to do with it that is some- 
 thing to do with it. But if you will look to the language 
 of Mr. Biddle, when the certificate of the recantation of 
 John D. Michener was read in the house of Elizabeth 
 Shoemaker, you will bear in mind that he says and 
 nothing is stronger than a man's own declaration : " I 
 would have thee," resuming the character ot the INQUISI- 
 TOR, and turning to Morgan, who had just escaped from 
 his confinement in the asylum " I would have thee and 
 thy uncle" (this respectable man, Mr. Samuel Fisher, 
 who has not escaped them), " I would have thee and thy 
 uncle understand that 1 have been concerned in this matter 
 from beginning to end" will that do ? " And I would 
 have thee iurther understand that lam determined to see 
 it out" Now the only question is, whether you will let 
 him see it out. This is no imagination, there is his own 
 testimony ; there is his own avowal. Well, sir, what 
 then ? Why, they say, that Wm. Biddle was not im- 
 properly placed upon that inquest ; I only say to you 
 that Mr. Thomas Wistar said that tliey had appointed 
 Mr. Wm. Biddle, Mordecai L. Dawson, and Edward Bon- 
 Ball, three of their own friends ; and that the list had been 
 handed to the deputy sheriff I suppose Mr. \Volf. I 
 say to you further, that Edward Richie stated, Wm. 
 Biddle had drawn up the list, and that he (Richie) car- 
 ried it to John L. Wolf. I hope that has not escaped 
 your honor's attention. Upon the result, produced by 
 the concentration of ail these facts upon the point under 
 consideration not taking any insulated circumstances 
 into consideration what question can there be ? But I 
 will show it to you besides. There is no man who has 
 more respect for the word of a respectable man, than I 
 have, and the sheriff is a respectable man. They bring
 
 326 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 the sheriff not the deputy sheriff for the purpose of 
 showing that he appointed Wm. Biddle, Mordecai L. 
 Dawson, and Edward Bonsall, without any suggestion 
 from any body ; and yet, as you will find from his testi- 
 mony, he thinks Mr. Wolf did recommend Mr. Bonsall, 
 as being the sou of an old superintendent but when he 
 is called upon two years after the event, how can you ex- 
 pect any officer, who has been but two months in his post, 
 surrounded with diversified scenes and cases, to remember 
 exactly what took place in the course of that morning, 
 when he -was first called to make an inquisition? He 
 gives you nothing explanatory of the case, but refers you 
 to John L. Wolf, with whom this paper, as I suppose, 
 had been left the day before. 
 
 I come to another topic. Is it not perfectly certain 
 that the sheriff said, he never appointed those gentlemen 
 upon any inquest, before ? Is it not equally certain that 
 he never appointed them on any inquest after ? Is that 
 denied ? No ! How is that ? Is it not a little remark- 
 able ? Is it not wonderful ? Is it not miraculous, that 
 never having been appointed before, and never after- 
 wards, his mind should fix upon Bonsall, Biddle, and 
 Dawson, the very names designated by Thomas Wistar 
 and Edward Richie ; and that he should travel the dis- 
 tance of half a mile for the purpose of selecting them; 
 and that he should select among them the very man that 
 fifteen minutes before had gone down to the office of the 
 counsel for the petitioner? 
 
 (The sheriff's cross-examination and examination was 
 here read.) 
 
 Well, now, you observe exactly what is the operation 
 of this reasoning. I said that it was probable that Mr. 
 Wolf made the suggestion to Mr. Lelar, and my friends 
 sustain that view ; for the sheriff himself says after two 
 years have elapsed, he can remember enough to say that 
 he thinks it probable Mr. John L. Wolf suggested to him 
 that " there was Mr. Bonsall." Is not this a most extra-
 
 HINCHMAN CASE. 327 
 
 ordinary chapter of accidents? Edward Richie stating 
 that he had served this list upon Wolf; and that list con- 
 sisting of men who were never selected before or after ! 
 But what is a little more extraordinary it is proved that 
 William Biddle expressed some surprise at his appoint- 
 ment I What is the meaning of this ? What is the 
 meaning of moral acquiescence, and moral perjury ? 
 What is the meaning of the suggestion that Mrs. Hinch- 
 man was guilty of moral perjury when in Doylestown, 
 while the mother took the affidavit ? What is the mean- 
 ing of Mr. Biddle being surprised at being called upon, if 
 he had written out the list, or if he had been named on it 
 before, or when in Price's office, on that particular busi- 
 ness ? If you can attribute this to the " error of the moon," 
 and result of chance ; you can go further in credulity than 
 any twelve men I have ever known. Remember that, 
 and see whether you believe that this was all news to Mr. 
 Biddle ; go further, and inquire whether you are to be- 
 lieve Mr. Biddle or not, when he said he had been en- 
 gaged in the business from beginning to end. 
 
 But, however this inquisition was formed, is there not 
 an obvious omission here upon so critical a turning point? 
 Where is Mr. Wolf? He is within trumpet sound of this 
 place. He is probably within the hearing of my voice at 
 this time. He is the deputy sheriff ; he is one of the in- 
 dividuals who, it is thought, made the suggestion : he 
 could answer at once whether he received such a com- 
 munication from Edward Richie. They very conveni- 
 ently shove by him, arid shuffle up the sheriff, to the top 
 of the pack of their witnesses. 
 
 (Mr. Williams interrupts.) " Why did you not produce 
 him?" (Mr. Brown continues.) Why did we not pro- 
 duce him I We had been already sufficiently in your care 
 and keeping ; we had no idea of going into the enemy's 
 camp to gather up recruits. Why did not you bring him? 
 it was necessary to himself it was necessary to the char- 
 acter of his office it was vitally necessary to the support
 
 328 FORENSIC SPEECHES OP DAVID PAUL BROWN. 
 
 of the defence ; and with all these inducements I marvel 
 much that you could resist them. They can't answer 
 that, it is impossible and thus, it is therefore sustained 
 abundantly by proof, as it was originally asserted, to be a 
 combination extending so far as not only to corrupt every 
 generous feeling, but sap the sacred foundations of the 
 law. Men who are to sit as judges, creating themselves 
 I have not a word further to say to that. You shall 
 speak for me. 
 
 (Mr. Biddle interrupts to say that there are seven depu- 
 ties, and that Mr. "Wolf is not the only one.) Bring the 
 seven deputies ; and there are seven reasons why you should 
 bring them. I supposed when you said, " deputy," you 
 meant Mr. Wolf. There are sub-deputies that is not 
 what I speak of I mean the acting deputy. Mr. Lelar 
 speaks of Mr. Wolf as his deputy he says he was his 
 factotum Mr. Wolf himself had deputies. Some of his 
 deputies were Mr. Richie and Mr. Biddle. Now, gentle- 
 men, whether rightly or wrongly, they have got their 
 
 They call it an INQUISITION. How appropriate, though 
 how terrible the name. MERCIFUL HEAVEN ! Let Spain 
 no longer be abused no longer revile that benighted 
 region for her folly and fanaticism no longer reproach 
 her for her chains, her racks, and her tortures, and all the 
 accursed machinery of human wretchedness, and human 
 degradation since here, in this boasted land of equality 
 here, in this hospitable asylum from persecution and 
 oppression here, in this thrice glorious and sacred sanctu- 
 ary of enlightened liberty and equal rights if principles 
 like these are to be tolerated, advocated, or allowed, every 
 doctor is a spy every lawyer an inquisitor every super- 
 intendent a jailor every citizen a victim, and every domi- 
 cile a dungeon. (Loud applause, which his honor could 
 scarcely restrain.*) 
 
 * Reporter.
 
 HISCHMAN CASE. 329 
 
 An INQUISITION, sir ! Let us see how conformable were 
 its proceedings to its character. How conformable to its 
 title, was the nature of its principles. They are, partly, 
 self-constituted judges. Sir, this is a matter of concern 
 a matter of deep concern. They go out in their carri- 
 ages a sort of triumphal parade to determine upon the 
 destiny of a fellow man, professedly a friend. Three, as 
 we say, self-constituted three, if you please, chosen by 
 the sheriff attended by counsel, and prepared for an ex- 
 parte hearing, preparatory to an auto-da-fe ; and wonderful 
 to relate, according to the evidence of some of the wit- 
 nesses, the two Richies, Dr. Griscom, Dr. Worthington, 
 are all examined ; and they then resort to the form of send- 
 ing for the poor victim ! This is worse than the inquisi- 
 tion it surpasses it in injustice and cruelty ! when you 
 have one- half of the judges made up of the prosecutors, 
 it's rather strange they should be unwilling to face the 
 man they came to condemn. 
 
 You may remember, yesterday I stated to you, that his 
 honor was perfectly right, in saying that " the inquisition 
 was dead and gone." And you may remember also, I 
 suggested, that it was dead and gone so far as it was cal- 
 culated to supply aid to the defence but it is living and 
 operative against these defendants. "Well, they have all 
 been examined, as I stated Edward Richie, Samuel 
 Richie, Dr. Griscom, and Dr. Worthiugton and then 
 Morgan Hinchman was sent for. 
 
 In broken-hearted obedience he enters. Now what 
 does he do ? He asks for counsel. Is it conceded to him ? 
 No! He is away from hundreds and thousands of those 
 who knew him he is in a comparatively strange county, 
 surrounded by his spoilers by those very men who had 
 arrested him, and they acting as witnesses. What he 
 said, no man can know ! One of my learned friends, Mr. 
 Price and it is remarkable has given in evidence what 
 took place when they got the account of his property 
 he got it from Morgan, when Morgan comes out 1 He
 
 330 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 talks of his property, and they make that evidence of his 
 insanity at the same time that they incorporate his 
 statement, as evidence,' in their report! [There is no get- 
 ting clear of these people, who involve in the proof of 
 insanity, exhibitions of great absurdity.] It is perfectly 
 obvious that Morgan Hinchman was apprised that they 
 inquired after his property, and he could not do less than 
 speak of his property. He speaks of it as it is they act 
 upon his information, which is true, and then urge the 
 information against him, as evidence of madness. If he 
 were mad in giving it, they were mad in taking it. ' 
 
 He says, " what is this about ?" Why ! says Eli K. 
 Price, " a number of the friends have come to inquire" 
 (not to hold an inquest) " as to thy health." There is not 
 a man that has the hardihood to tell him, candidly, what 
 they are assembled for 'Surrounded as they are with keep- 
 ers. At last he says, " I think it seems to be an inquisi- 
 tion of lunacy" he understands it, taken suddenly as he 
 was "and I would like to have counsel," "but ain't I 
 thy friend ?" " Certainly ; but you are the counsel of the 
 opposite party, and I cannot put friendship in opposition 
 to professional interest, I want my own counsel." " Art 
 thou not satisfied with me ?" " Yes, I have been, except 
 in one instance, and that was in a case in which thee com- 
 promised a debt, instead of getting the whole debt." "What 
 more can you want ? wherever you touch him he is sane. 
 They can't answer him, so they turn him out of the room 
 the best mode of getting out of a bad argument. They 
 disgrace even the inquisition. Look well to it they pass 
 judgment. Look at that record look at the words: 
 " Moro-an Hinchman is a lunatic, and has, been a lunatic 
 
 o 
 
 f or last past." Mr. Price tells you it was drawn 
 
 up in this city. I only revert to it to show the precon- 
 ceived intention. He was declared a lunatic in Mr. Price's 
 office. What is judgment, after execution ? What, to 
 kill a man first, and then try him afterwards ! I don't 
 wish to pause upon this ; but I ask you to turn your at-
 
 HINCHMAN CASE. 331 
 
 teution to it, and to remember that you and yours, hold 
 your liberty, your life, your sacred reputation more 
 valuable than both by the tenure of a spider's web, if 
 this doctrine is to be tolerated or indulged. You will 
 have no protection ; the charter of your rights is an empty 
 boast, and in the hour of trial your imaginary security 
 vanishes. 
 
 After this, they pass back to the farm ; sell out his 
 property ; account with the commissioner ; and subsequently 
 appoint Mr. Lloyd Mifflin committee of his person and 
 estate : they dispose of his property, and rend and deraci- 
 nate him! pay counsel fees out of his own estate a 
 matter totally unnecessary and having conveyed his 
 person to captivity, they sell out his last hopes. 
 
 Well, there he slumbers; no, not slumbers decays in 
 the asylum ; nobody interposes ; nobody knows of his con- 
 dition. His uncle knows nothing about it his uncle, 
 who had been seven years in the Legislature, and was 
 well known to Mrs. Hinchman and others of the party. 
 And Samuel Fisher, and Samuel Webb and wife Samuel 
 Webb, with whom he served his apprenticeship nobody, 
 relative or friend none of his neighbors no human 
 being is called, or allowed, or noticed, to interpose in his 
 behalf; sacrificed as he was in the morning of his days, 
 and doomed to eternal shame. Even Charles Shoemaker 
 was not informed. It however happens that Mr. Hinch- 
 man is apprised of his nephew being in the asylum at 
 Frankford. Then, with all the promptitude of a man of 
 business, he goes himself to the asylum, and inquires in. 
 relation to the matter ; and in the course of his conversa- 
 tion with the defendants, ascertains that it is the result 
 of a mere contrivance. He subsequently gives the deiend- 
 ants to understand that this cannot be continued that 
 he will try the potential efiect of the habeas corpus. Now 
 it is their turn to be taught something like reason ; they 
 seemed to consider it previously a mere matter of despot-
 
 332 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 ism. Look to this ; take notice here, for I cannot dwell 
 upon it ; my allotment of time will not permit it. 
 
 Well, when the property is sold, what then ? Thomas 
 Wistar is at the place he was there only for the sale 
 when Miss Shoemaker came, they carried away a part of 
 the furniture, and distributed this poor man's garments, 
 and they leave nothing to be found. They make a sale 
 upon his farm take an inventory, and do everything, af- 
 fectedly with form pay all expenses for what the}* have 
 done, or what was done for them, out of the estate. But 
 what more ? Morgan Hinchman subsequently escapes 
 from the asylum, and applies to the court for the purpose 
 of having the original commission against him rescinded, 
 and the whole proceeding quashed. Was not he sane 
 then? They say they had cured him? What do they 
 do? They thrust Lloyd Mifflin into the forefront of the 
 battle ; and in pursuance of their design to have the con- 
 trol of his property, they attempt resisting the application 
 of a sane man to rescind a commission of lunacy. You 
 ask for motive! Can it be stronger? [Favor me with 
 the testimony of Mr. Benjamin Hinchman.] 
 
 It was also argued by Richie, that Morgan having 
 been in the asylum as a lunatic, he could do nothing with 
 his property ; and he had better make a deed of trust, or 
 leave it in the hands of Lloyd Mifflin, the present com- 
 mittee. Mr. Hinchman said, " Why, if he is a sane man, 
 I don't, see why he should not have his property ; if in- 
 sane, what is your deed of trust good for ?" Well, says 
 Richie, either let him make a deed of trust, or let it re- 
 main in the hands of his committee, Lloyd Mifflin. (Mr. 
 Benjamin Hinchman's testimony was read.) 
 
 I connect that matter with Dr. Worthington's remark 
 in relation to his property. I connect it with the fact of 
 Wistar being Mifflin's security. I connect it with Mr. 
 Garrett's declaration, and I show that the object was to 
 keep the property from Morgan. What is plainer, when 
 Edward Richie distinctly states, " if you do that, you
 
 HINCHMAN CASE. 333 
 
 may come out, and be a sane man." It is as plain as it 
 can be. They follow that up until he regains his liberty 
 from the asylum ; and even afterwards, they still hold 
 on to his property, and take his money to pay counsel, 
 to keep him out of it. Can you look upon these things 
 and misunderstand them ? 
 
 Mr. Richie paid all the expenses, board, counsel and 
 all, out of the plaintiff's own money ; but Mr. Duboissays, 
 apart from the money he received from Mr. Mifflin, or 
 Mr. Richie, he received a fee from Mr. Wistar in the 
 whole matter. Then comes Mr. Lloyd Mifflin, and tells 
 the uncle that he (the plaintiff) had better not attempt 
 reclaiming his property, but leave it with him ; because 
 they would either prove him insane, or so blacken his 
 character that he could not walk the streets. Can they 
 account for that ? Does it not indicate the nature of the 
 whole transaction ? Does it not unfold the motive much 
 more clearly than I could ? It is plain and obvious, and 
 cannot be denied, or misunderstoood. 
 
 I leave you, gentlemen, to do the rest of this work. 
 Take the notes Think of them. Judge of men's thoughts 
 by their actions, the only earthly test ; and tell me whether 
 a doubt can remain upon your minds. Take what they 
 themselves have said; take what they have done. They 
 were all influenced by the same motive and same spirit, 
 from first to last. Tell me, if you can, when was it that 
 the occurrences of life involved a more unnatural con- 
 federacy, or produced worse consequences ? Don't mis- 
 take this case. It is not merely the case of Morgan 
 Hinchman ; you may blot his unit out of the sum of 
 life ; but do not stab society ! Do not immolate the laws 
 under which you live, which protect you, by which you 
 are protected, and to which you are to turn for security. 
 Look well to that. You are the guardians of it. Don't 
 suppose, because time is not allotted to discuss it, that 
 every portion of this case is not attributed to the same 
 design. You shall discuss it for me. It is a work of
 
 334 FORENSIC SPEECHES OP DAVID PAUL BROWN. 
 
 justice. It is a work of mercy, too, and upon its accom- 
 plishment depend the interests of the land. 
 
 There are a few isolated remarks of the defendant's 
 counsel (which, in my rapid flight, have not been dis- 
 tinctly noticed), that before I conclude, demand a mo- 
 ment's attention. I hasten to the period when our joint 
 labors are to be terminated ; and to be crowned, I hope, 
 by the consciousness and consolation, of having faithfully 
 discharged our duty. 
 
 The learned gentleman says, we must show the defend- 
 ants knew him (the plaintiff), to be perfectly sane at the 
 time of the capture. Not so. That refers as much to 
 the condition of their minds as to his. The defendants 
 must show that they at least had satisfactory evidence, or 
 knowledge, of his insanity. That is the only mitigation 
 of their offence. They know upon what grounds they 
 acted they can show what were their inducements ; and 
 if they show unreasonable, or inadequate inducements, 
 wo betide their defence. 
 
 Again, he says : " that if there was reasonable ground 
 to suppose that the plaintiff required medical treatment, 
 none of the defendants can be guilty." He forgets that 
 the illegality of manner in the arrest, as well as the arrest 
 itself, may be the subject of conviction for conspiracy 
 and he further forgets that they have not shown consis- 
 tently with a fair view of the evidence that the defend- 
 ant required such medical treatment as they have thought 
 proper to apply. 
 
 It is said they had the opinion of a reputable physician : 
 the report of Friends : the finding of the inquest : the 
 consent of Warder and Biddle. Why, some of these are 
 the grounds of complaint ; and others were the mere mea- 
 sures resorted to, ex post facto, for the purpose of giving a 
 semblance of justification for the original outrage. But 
 we have included Dr. Evans and Anna Hinchman, and 
 Benjamin Warder. They were properly included. Ap- 
 parently at least, they were parties. Suppose we had sued
 
 HINCHMAN CASE- 335 
 
 one, then we should have been told, according to their 
 doctrine, that a conspiracy required more. Suppose only 
 two then we should be told, it is a great hardship, that 
 others were as guilty as they. Why didn't we include 
 "White ? Because it was ascertained that he was imposed 
 upon did nothing but make the appointment and ob- 
 viously disapproved of that; and was necessary as a wit- 
 ness in order to explain the treachery resorted to. 
 
 But we give Morgan Hinchman's letter and statements 
 in evidence ! " only in rebuttal" Which was perfectly 
 right. They attempt proving him insane by his letters. 
 He burnt none ; but exhibits all in his possession for 
 your candid examination. 
 
 I set aside the settlement in 1840, or consultation with 
 Judge Stroud. What has that to do with the issue ? 
 You are not to settle mere questions of property indi- 
 vidual or domestic controversies or difficulties. The appli- 
 cation to my distinguished and excellent friend, Judge 
 Stroud, certainly implies no want of sanity ; nor was the 
 object of that application incompatible with sound reason, 
 or the exigency of the occasion. 
 
 I have now considered the more prominent arguments 
 of my learned friend. I have vindicated, as far as neces- 
 sary, the views of my respected colleagues. I have dis- 
 cussed the doctrine of insanity as relates to the mind, or 
 as connected with the diseases of the body and I have 
 endeavored to show you that in reference to neither, had 
 the defendants any sufficient ground for the course they 
 have adopted. 
 
 In addition to this I have shown that we are not called 
 upon to prove the existence of malice, or the want of 
 probable cause, in a case of this character ; that if we were, 
 they are both fairly to be inferred from the nature of the 
 aggression ; and that the absence of the former and the 
 existence of the latter, must be subjects of satisfactory 
 proof, by the defendants themselves. 
 
 I have further briefly glanced at the defendant's testi-
 
 336 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 mony, in order to prove its inadequacy to such proof, 
 when justly examined. And I have now to say, in con- 
 clusion, as I have said before, that these defendants can- 
 not escape, by showing that there were others concerned, 
 as guilty as themselves, though not embraced in this suit. 
 That they cannot escape by their character by the im- 
 portance of the lunatic asylum by the prospective liabili- 
 ties which it may incur by the rumors in regard to the 
 plaintiff, which may have either been set afoot by them, 
 or otherwise originated by the gossip of old maids, or 
 the phantasies of married women by the report of Dr. 
 Kite, or the endorsement of Dr. Worthington or Dr. Gris- 
 com by a commission irregularly issued, or an inquisi- 
 tion illegally executed by a secret conclave at the farm 
 of Mrs. Eliza Hinchman, nor by skulking behind the 
 mother and wife for protection. J^one of these resorts 
 will afford them any aid ; and all that remains, therefore, 
 to be determined, is the amount of the damages and 
 upon that, gentlemen of the jury, it is your peculiar and 
 exclusive province to decide. 
 
 But a few words on the subject of damages, and I have 
 done. You shall adjust the amount. I take leave to say, 
 sir, that after having examined the account, you will find 
 that when Morgan Hinchmaji married Miss Margaretta 
 Shoemaker, his fortune was equal to hers in every respect. 
 They make it less, because they take the price of the 
 stocks at their quoted rates originally ; whereas it was 
 much less\ and they remained in the hands of a trustee, 
 and there diminished, until they had been reduced one- 
 fifth of their original value. That is called his wasting 
 it had been wasted before it came into his hands. This 
 was a most artful course to establish incompetency. 
 What do his neighbors think of Morgan Hinchman ? 
 Do they think him an incompetent man ? They thought 
 he was a f cute " man. He drew up the instruments for all 
 the neighbors. He was a gem, in that neighborhood 
 everybody relied on him. But because he could not cal-
 
 HIXCHMAN CASE. 337 
 
 culate farther than any other man ; because he could not 
 " look into the womb of time, and see which seed would 
 grow, and which would not ;" he must be considered a 
 madman. Look at that marble palace down the street,* 
 with able, sagacious and distinguished men at its head. 
 What did they foresee? You all relied upon them. Yet 
 they, and you and all, were deceived ! Why, vicissitude 
 is the lot of human transactions that which seems the 
 most prosperous, is often our ruin. Our penalties are 
 often our blessings. So does Providence dispense all 
 things " man proposes, and God disposes." 
 
 But what are his damages ? Why, says my learned 
 friends, didn't they restore the property that fragment 
 that remained with them after the sale after all these 
 expenses, after all these liabilities were deducted, after 
 the breaking up of his household didn't they restore the 
 remnant except the farm, which they still hold. What 
 does that come to ; when a man's farm and house have 
 been stripped and desecrated ? They take the jewel, and 
 cast the empty casket at our feet, and say, take that 
 and rejoice. Is the restoration of the dead body a conso- 
 lation when the life is torn away ? Is the brand of im- 
 puted insanity resting upon his brow, like the mark of 
 Cain, to travel with him through life ; to be compensated 
 by figures ? Well, look to that ? Is that the mode in 
 which they account ? I consider the pecuniary amount 
 as comparatively nothing. How do they account to you 
 for the months of solitary imprisonment ? How do they 
 account to you for the present sufferings of this man? 
 How do they account for the continued estrangement 
 of his wife ? How do they account for robbing him of 
 his children for staining his character, making him a 
 figure for the hand of scorn " to point his slow unmoving 
 finger at ?" Are these nothing ? How for the nights of 
 torture, waking him hourly, though he stood in want of 
 
 * Formerly the United States Bank. 
 22
 
 FORE^ T SIC SPEECHES OF DAVID PAUL BROWN. 
 
 sleep ? How for the restraint upon his liberty, in refusing 
 communication with the external world ? They say he is 
 insane even now I Take his letters, written at the very 
 witching time (I have not time to read them) and 
 tell me if the whole college of physicians could write or 
 reason more soundly take them all and tell me what 
 they come to. Nay, take the testimony of the defend- 
 ants themselves. They resemble men who walk back- 
 wards to destruction ; and who look upon the sun or stars, 
 to the last. 
 
 I ask you to indemnify him to signify your sense of 
 the wrongs and injuries to which he has been wantonly 
 subjected by the character of your verdict. I ask you 
 only to indemnify him as far as you can ; because entire 
 indemnity never can be reached. A cureless wound has 
 been inflicted ; for which " there is no balm in Gilead ; 
 there is no physician there," speaking in the temporal 
 application of the phrase. But do what you can the 
 law demands it from you individual right appeals to 
 you for it, and every consideration it awakens, in the 
 minds or consciences of men, imperiously lays claim to it. 
 But it is not only in regard to him that you are called to 
 give it : I ask for it in regard to the defendants them- 
 selves. It is not more necessary in the dispensations of 
 justice, may it please your honor, that the injured should 
 be indemnified, than that the offenders should be pun- 
 ished. I ask you, then, to teach them a lesson ; if not 
 through their hearts, through the salutary medium of 
 the pocket, which is a little lower. Bo as you would 
 wish to be done by. All these matters enter into the 
 consideration of this case. Give them to understand that 
 a harmless, helpless, inoffensive individual may not in 
 broad blushing daylight, as I have said, be arrested 
 either by a military band or by friends, more remorseless 
 than a military band and taken to a mad-house, and 
 there incarcerated. Let them understand that this enor- 
 mity, continued for six long, lingering months, shall es-
 
 HINCHMAX CASE. 339 
 
 cape, uncondemned ; and you establish an example in the 
 contemplation of which the community shall be cor- 
 rupted, and the whole world may weep tears of blood. I 
 leave this matter to you : I don't ask you to bring it 
 home to yourselves and look at it through the painful 
 medium of your wives, and with reference to your chil- 
 dren ; but to regard it with respect to blighted prospects 
 in times to come, and blighted fortunes in times past. I 
 ask you to look at it as calm dispassionate men will do, as 
 adjust men must do, determined that "JUSTICE SHALL 
 
 BE DONE THOUGH THE HEAVENS SHOULD FALL."
 
 SMITH'S CASE. 
 
 COMMONWEALTH OF PENNSYLVANIA v. THOMAS WASHING- 
 TON SMITH. 
 
 In the Court of Oyer and Terminer, held at Philadelphia. 
 January Sessions, 1858. 
 
 CHARGED WITH MURDER. 
 
 INTRODUCTION. 
 
 The history of this case is one of the most painfully sad 
 records of human suffering and human wrong culmi- 
 nating in a terrible human sacrifice that the annals of 
 any time can furnish. The material facts, however, are 
 so clearly set forth in the following pages, that it is only 
 necessary here to state, that after a trial that lasted two 
 weeks, the defendant was " acquitted." 
 
 For the Commonwealth. 
 
 District Attorneys J. P. LOUGHEAD and WM. B. 
 MANN. 
 
 for the Defendant. 
 Messrs. M. RUSSELL THAYER and DAVID PAUL BROWN. 
 
 (340)
 
 SMITH'S CASE. 841 
 
 SPEECH IN SMITH'S CASE. 
 
 WITH DEFERENCE TO YOUR HONORS, 
 
 GENTLEMEN OF THE JURY: 
 
 After a painful, deeply interesting, and unusually pro- 
 tracted course of investigation, you and I are about to 
 separate. Your time has been well employed ; and that 
 patience and attention which you have exhibited from 
 the commencement of this cause have been well bestowed. 
 Time and toil, properly considered, are of little value 
 when they are compared with the importance of eternity. 
 Time is nothing -justice is all. 
 
 Justice is much talked of, but not always well under- 
 stood. Her temperament has been resembled to that of 
 the lamb rather than that of the lion to the dove rather 
 than the vulture. In her human administration to say 
 nothing of her celestial properties she is dignified, calm, 
 mild, moderate, and even merciful. She bears a sword, 
 it is true, which indicates that offenders against her holy 
 edicts must be punished ; but even when she inflicts the 
 blow, she does it reluctantly, and for salutary, and not for 
 vindictive purposes. She mingles her sighs with those of 
 her victim, and returns him groan for groan. While 
 bearing the sword in one hand, she holds the scales in the 
 other, wherein to weigh the actions, the vices, the vir- 
 tues, and the motives of men. When those scales are 
 equiponderant, she drops a tear into that of the accused, 
 and the commonwealth's kicks the beam. 
 
 Some thirty-five years ago perhaps before your honors 
 were born I had the distinction, being then a very 
 young man, to discuss an important case of homicide (in-
 
 342 FORENSIC SPEECHES OP DAVID PAUL BROWN. 
 
 deed every case of homicide is important, whether it in- 
 volve the fate of the low or lofty), in this very court. 
 At that time, I observed an emblematic figure or effigy 
 of justice, placed immediately over the judgment seat. 
 In the left hand she bore uneven scales ; and in the right, 
 an equivocal sort of implement, which appeared to resem- 
 ble a trowel, or a butcher's cleaver! Instead of wearing 
 her white and immaculate robes, it struck me as most re- 
 markable, particularly in a court of criminal jurisprudence, 
 that she should be covered from head to foot with GILT 
 (guUf). That figure, I find, still remains ; but in looking 
 at her now, I perceive the scales are gone, the cleaver has 
 also been removed and if I were suspicious, bearing in 
 mind the sanguinary doctrines of the commonwealth, I 
 might readily suppose that it had been transferred, to- 
 gether with the notes of Mr. Bulkley, to the tender mer- 
 cies of the prosecuting counsel. 
 
 In a case like this, allow me to observe, there has rarely 
 been exhibited such undue severity against a defendant 
 engaged in a struggle for his life, as has marked the 
 course of the prosecution. Nevertheless, we guard the 
 citadel of human life, and we will maintain our -.posts 
 until the last, even though our own lives should be the 
 forfeit. 
 
 Permit me further to say, that if I had changed places 
 with the officers of the State, I would at once, with my 
 views of this cause, after hearing the testimony as I 
 should answer to the JUDGE of judges have promptly 
 abandoned the prosecution, and that too, if urged on by 
 twenty commonwealths. No commonwealth should stand 
 between my conscience and myself: no commonwealth 
 can stand between my conscience and my God. 
 
 In the course of this trial too, the State, not depending 
 alone upon her own strength, or that of her official func- 
 tionaries, has been surrounded by a trio of herculean rep- 
 resentatives from Tamaqua ; so that at one time we were 
 almost appalled at the anticipation (knowing our friend's
 
 SMITH'S CASE. 343 
 
 fondness for the antiquities of the law) that he was about 
 to revive the ancient and obsolete mode of trial, called 
 "the wager of battle:" in such a physical rencontre the 
 defendant would have had as much to fear, as he now 
 has to hope, in his legal and moral defence. 
 
 The public prosecutors, I repeat it, while they have 
 conducted this case with great ability, and I am com- 
 pelled to add, with unexampled zeal, have, it is true, pro- 
 fessed some sympathy for the defendant, and spoken of 
 their own impartiality. Professions are nothing to me, I 
 look to the action of men. 
 
 The counsel may have bedecked their brows with 
 laurels ; but it is the business of my colleague and myself, 
 with your aid, gentlemen of the jury, to prevent these 
 laurels from being imbued or nurtured by the blood of an 
 innocent man. The honors that spring from cruelty or 
 severity, are ever questionable in their birth, and at the 
 best but of a precarious and short duration. But one 
 thing at least is true, their remembrance shall be perpetu- 
 ated in the groans and agonies of those whom they have 
 oppressed. Power is desirable, it is laudable, when used 
 for a laudable purpose ; but it is most pernicious, not to 
 say culpable, when applied to unjust ends. 
 
 "It is excellent to have a giant's strength, 
 But it is tyrannous to use it like a giant." 
 
 "We now take leave, for a time, of the commonwealth 
 and its officers, and turn to a more agreeable subject. 
 My learned friend and colleague, in the discharge of his 
 duty, has reflected great light upon this cause and great 
 honor upon himself. By his industry and talents he has 
 removed all impediments (there were no obstacles) which 
 had been temporarily thrown in our 'way ; and almost all 
 that remains to me, is to deepen the impressions he has 
 made, by treading in his footsteps. It is .certainly no dif- 
 ficult task, to pursue any path in which he has been the 
 pioneer.
 
 344 FORENSIC SPEECHES OF DAVID PAUL BKOWN. 
 
 A single other preliminary word to you, gentlemen of 
 the jury : However this case may eventuate, you will 
 bear with you, in withdrawing from your present public 
 functions, not merely the thanks of this honorable 
 court for your patience and attention during this impor- 
 tant and vital trial, and the thanks of the humble advo- 
 cate who now appeals to you ; but you will bear with 
 you, what is beyond all praise and all price, the grate- 
 ful acknowledgments of lacerated, bleeding and broken 
 hearts. You will bear with you, also, what the world's 
 applause cannot give, nor its censures take away the 
 consolatory consciousness of having faithfully and fear- 
 lessly performed your duty. 
 
 For myself, allow me to say, if I should close a forensic 
 career of more than forty years, by the successful vindi- 
 cation of the prisoner at the bar ; if not the crowning 
 glory better than the crowning glory it would be the 
 crowning happiness of an arduous, laborious, and diver- 
 sified professional life. But the mind of man is so mys- 
 teriously constituted, that in moments and matters of the 
 deepest interest and anxiety, it often becomes impaired in 
 its exercise and efforts, in the very consciousness of its 
 responsibility ; and in its desire to do most, it accomplishes 
 the least. In the language of the unhappy prisoner, our 
 very " hopes are hopeless" our very wishes give us not 
 our wish. 
 
 When I look at the unfortunate defendant, blasted, as 
 it were, in the very prime of his life, the spring-tide of his 
 existence when I behold his pale, fragile, affectionate, 
 and self-devoted sister clinging to him, as the tendril 
 clings to its support, beautifying it with its verdure, and 
 refreshing it with its shade when I cast a retrospective 
 view over all that he has suffered, and all the sufferings 
 in which she has shared ; and when I bear in mind that 
 all this load of grief appeals to me, at least in part, for 
 alleviation ; you must pardon me for saying, that I almost 
 shrink from the appeal. " I tremble, and confess myself
 
 SHITH'S CASE. 345 
 
 a coward" not, heaven knows, from a want of sym- 
 pathynot from a want of will but from the fear that 
 the warmth of that sympathy, and the earnestness of that 
 will, may defeat the exercise of those abilities which are 
 so urgently and imperatively demanded. 
 y( Your condition, however, gentlemen of the jury, pain- 
 ful as it is, is far more enviable than mine. To you is 
 delegated a portion of the attribute of Omnipotence: 
 you are his Fates : you hold his life in your hands : you 
 control his temporal, if not his eternal destinies : you can 
 avoid what I can only deprecate his condemnation : 
 you can secure what I can only solicit his acquittal. 
 Upon you, therefore, the hopes of this unhappy man must 
 mainly rest, and to you we solemnly and confidently com- 
 mit the result of this deeply interesting and most mo- 
 mentous cause; at the same time earnestly beseeching 
 you ever to bear in mind, that N 
 
 " Human power doth then ?eem likest God's, 
 When mercy seasons justice." 
 
 .N~ow, gentlemen of the jury, to come to the case: 
 This indictment charges Thomas Washington Smith with 
 the murder of Richard Carter, on the 4th day of Novem- 
 ber, 1857. The ordinary defences of murder, generally 
 consist in the denial of the act of homicide ; or in the 
 denial of the death, as the consequence of the act ; or the 
 mitigation of the alleged degree of felonious homicide, 
 arising from the cause that produced it ; ,or the allega- 
 tion of mental irresponsibility, in excuse of the crime 
 charged, whatever may have been the imputed offence. 
 
 Such, I say, are the ordinary defences. Jn this case, 
 however, we do not deny the act, nor do we deny that it 
 produced death. Both of these are fatal and unques- 
 tionable truths. Except, therefore, for the sake of ad- 
 herence to formal and technical propriety, no proofs thus 
 far, would have been required by us from the common- 
 wealth. Our defence rests on widely different grounds.
 
 346 FORENSIC SPEECHES OF DAVID PAUL BROWX. 
 
 If we were astute, and it were necessary, we might show 
 you that, if the defendant were as sane as Solomon (I 
 don't mean as wise), this could be no more, according to 
 the evidence, than the very least degree, of the least and 
 last order, of felonious homicide. I shall just intimate a 
 thought on that subject, rather to show that we might 
 rely upon it, if necessary; though at the same time disa- 
 vowing all such intention. I shall skim over, rather than 
 argue it, and then come to the main ground of our reli- 
 ance. 
 
 There are three kinds of felonious homicide in Penn- 
 sylvania : 
 
 Murder in the first degree. 
 
 Murder in the second degree ; and 
 
 Manslaughter. 
 
 Prior to the year 1795, there were but two grades of 
 felonious homicide as the English law then existed in 
 all its rigor, in this State. At that time, William Brad- 
 ford immortalized his name, by the amelioration of this 
 portion of the criminal code, whereby the second degree 
 of murder was introduced ; and in the introduction of 
 which the Legislature provided : "That all murder perpe- 
 trated in the commission, or attempt to commit robbery, 
 rape, burglary, or arson, or by poison, or lying in wait, or 
 an^v wilful, deliberate, and premeditated killing, shall be 
 deemed murder in the first degree ; and all other murder 
 shall be murder in the second degree. 
 
 Remember, it is all other murder, not all other killing. 
 If it were all other killing, it would render our code 
 more sanguinary than the British code ; and elevate the 
 crime of manslaughter into, murder of the second degree. 
 The intention of this law was clearly (as both murder in 
 the first, and second degree, require malice), to discrimi- 
 nate between the grades or species of malice ; and to 
 regulate the offence accordingly. 
 
 The terms " wilful, deliberate and premeditated/' 
 particularly when we associate with them, as connected
 
 SMITH'S CASE. 347 
 
 with, and as illustrative of, their character, the terms 
 " poison and lying in wait," can leave no doubt as to 
 the truth of my position ; and I take leave, therefore, to 
 say, that when Dougherty was convicted of murder, 
 upon the plausible doctrine of Chief Justice McKean ; 
 and also when Lieutenant Smith was convicted by the 
 same doctrine of Judge Rush that, " as he struck the 
 blow, it must therefore have been wilful ; and if it was 
 wilful, and he intended to kill, it must have been deliber- 
 ate ; and if the deliberation was for a single moment, it 
 amounted to premeditation " so that the act became 
 " wilful, deliberate, and premeditated !" I take leave to 
 dissent, toto coclo, from the law and the logic of those dis- 
 tinguished jurists. Again : " If the defendant has time 
 to think, and did intend to kill, for a moment, as well as 
 an hour or a day, it is a deliberate, wilful and premedi- 
 tated killing, and murder in the first degree, within the 
 act of Assembly." 
 
 Now, if it were not for the high authority of this doc- 
 trine, I should hold it to be sheerly absurd, and utterly 
 opposed to the humane spirit of the enactment in ques- 
 tion. First : What is meant by a moment ? It is an in- 
 definite lapse of time. Horace speaks of " a moment of 
 an hour." Legal matters should be definite, particularly 
 when life depends upon the construction. What might 
 be wilful, deliberate and premeditated in one man, might 
 not be so in another. Are the workings of the mind of 
 an excited man, and the limit allowed to cooling time, to 
 be fixed by a learned judge, who is never permitted to 
 become excited who is calm and dispassionate from 
 habit and necessity? Is he to determine when reason 
 resumes her throne when, with him, she has never been 
 known to lose it ? If this be the case, why then, a man 
 who, at one moment has his nose pulled, and the next 
 moment kills his assailant (which can amount to no more 
 than manslaughter), upon this dicta of the judges that 
 " as he had the will to do it, he had the thought to
 
 348 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 prompt the will and if he could think one moment be- 
 fore the blow, he premeditated the blow" every man- 
 slaughter would be at least, murder in the second degree. 
 In short, there could be no manslaughter ; unless you 
 take from the alleged offender, at the same time, the will 
 to strike and the ability to think that is, unman him 
 entirely, and deprive him of the powers of a sentient 
 being of which, let me say, if he were thus utterly de- 
 prived, he could commit no oft'ence at all, as he would no 
 longer be a responsible being. 
 
 My notion is, then, that in order to murder, there must 
 be such manifestations as clearly imply a " heart regard- 
 less of social duty, and fatally bent upon mischief." I 
 do not mean to say, that the plan of destruction shall 
 exist for a day, or even for an hour ; but I do mean to 
 say, that it is incumbent upon the commonwealth clearly 
 to show its pre-existence, in order to establish what the 
 law calls malice. Poison requires the preparation or con. 
 coction, and administration of the destructive drug ; it is 
 for the most part prepared in the absence of the intended 
 victim ; it is an evidence of will, deliberation, and premedi- 
 tation, that cannot be disputed. Lying in wo.it, belongs 
 to the same category of offences ; the very term wait, im- 
 plies time for will, deliberation, and premeditation ; and 
 as "all other kinds of wilful, deliberate, and premedi- 
 tated murder," clearly refer to the motive and malice of 
 the cases adverted to; it of course follows that a sudden 
 exigency, producing an instantaneous excitement of 
 mind, whether it be in the shape of a blow, a wrong, or 
 an insult, or whatever you please, is not embraced by 
 those terms which designate murder in the first degree. 
 
 The law of England describes murder as the " taking the 
 life of any reasonable creature, with malice aforethought, 
 either express or implied" Our law does not recognize 
 this doctrine. Implied malice with us, is never more 
 than murder in the second degree ; and although express 
 malice amounts to murder in the first degree, the Legis-
 
 SMITH'S CASE. 349 
 
 lature has taken care to define what shall constitute 
 express malice, by the terms " wilful, deliberate and pre- 
 meditated." 
 
 Now, may it please your honors, do not encounter 
 me, by telling me how you have decided ; or what pre- 
 conceived notions may have taken lodgment in your 
 minds; but comj to the question with your best reason- 
 ing, and with all the lights you can bring to bear upon 
 it ; and before you break into the " bloody house of life," 
 be conscientiously and well assured that you do so upon 
 the warrant of the law. 
 
 It matters not what has been decided if erroneously 
 decided : you are not the scapegoats or pack-horses to 
 carry off all the errors that may have crept into the ad- 
 ministration of justice : let those who have committed 
 them answer for them. We are engaged in the case of 
 The Commonwealth v. Smith you are the judges this 
 is the jury in his case I am the counsel this is the law 
 and I ask your decision on this law, derived directly 
 from the Legislature, and especially applicable to this 
 case. Do not, by imaginary analogies, or supposed simi- 
 larities in other cases, as decided by other judges, be 
 betrayed into errors upon the subject which is now imme- 
 diately before you. No two cases exactly alike or to 
 which the law equally related were ever yet known ; 
 and therefore by confounding one case with another the 
 past with the present and applying the same law 
 equally to both, you may do great and irremediable 
 wrong. 
 
 I say, then, that if this defendant was perfectly him- 
 self, it is legally impossible, even if the provocation was 
 not the tithe of what it is and what I shall show it to 
 have been to convict him of more than murder in the 
 second degree. 
 
 And I will show you with regard to the exact state 
 of the provocation though he was as sane as any judge 
 or juryman, that I address that the offence, at most was
 
 350 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 but MANSLAUGHTER. And further I will show you, with 
 reference to the state of his mind at the time ; and 
 the cruel injuries and outrages he had sustained ; and. the 
 peculiar sensibilities of the man^ and his inherited infirm- 
 ities ; that he is totally irresponsible to the law for the 
 death of his betrayer. 
 
 But to resume having marshalled you the way that I 
 am going how is it worse than manslaughter apart 
 from the alleviating features suggested in my third point ? 
 
 A man, returning to his home, detects an adulterer in 
 the "manner" he immediately rushes forth for a wea- 
 pon and strikes him dead he thinks he knows it is his 
 wife he knows the betrayer he knows it is his own house, 
 and his own rights that are violated : he wills he delib- 
 erates he premeditates. According to the judicial no- 
 tions referred to, he is guilty of murder ; yet that has 
 never been held to be more than manslaughter, even if he 
 kill both. And if it were a rape, and the ravisher were 
 slain, it is excusable homicide on the principle that the 
 wife and the husband have reciprocal rights of defence ; 
 and that in defending her he defends himself. 
 
 "Well, then, as slaying the adulterer in the act of crime, 
 can be no more than manslaughter and as it is reduced 
 to that third grade of felonious homicide, by the excite- 
 ment if we show you a state of excitement produced in 
 the human mind, equal and greater than that of a hus- 
 band who detects his wife with the adulterer: does it re- 
 quire an argument from me to show, that the greater the 
 excitement the greater the mitigation of the crime ? Let 
 us, in this part of the case, suppose (as has been said) 
 Mr. Smith to be as sane as any man I address, and as 
 composed as any man could be who had been subjected 
 to the same injury; and I will show, that time, which 
 heals slight wounds, causes those that are deeper and 
 more mortal in their character, to gangrene and destroy ; 
 in other words, that excitement arising from some inju- 
 ries is aggravated by every succeeding day and hour.
 
 SMITH'S CASE. 351 
 
 Anger, is said to be "a brief madness," and it is upon 
 that hypothesis that the law mitigates homicide from 
 murder to manslaughter, where the fatal blow is pro- 
 voked by the original assault or provocation. Should not 
 that excuse be at least equally available when the party slain 
 having originally assumed the mask of a friend, and un- 
 der that disguise utterly ruined the hapless defendant 
 induced him to marry his offcast mistress ; concealed the 
 connection for months ; allowed it to burst upon him 
 and to burst upon a censorious world of a sudden in the 
 midst of . his hopes in the very bloom of his affec- 
 tions ; and thus consign him at once, while surrounded 
 with all the charms of life, to worse than annihilation, to 
 remediless and fathomless ruin. Ruin to him to his 
 to every one who clung to him, or to whom he clung. 
 
 The man who strikes an adulterer dead, is partially ex- 
 cused for the deed, by the enormity of the offence thus 
 punished. He is not excused because he is insane, but 
 because even sanity itself would prompt the blow. But 
 suppose the blow were not inflicted at the moment, that 
 the unhappy husband buried for a time his griefs and 
 his wrongs in his own bosom, like a pent. up earthquake 
 or volcano, brooded upon it in ceaseless agony saw it 
 in every human face saw it in his blasted hopes 
 inhaled it in the air he breathed felt it in his " heart 
 of hearts," month after month, and hour after hour, 
 until it utterly absorbed or enthralled his better nature 
 gaining strength with progress, and finally over- 
 powering all mental resistance his one, sole, fearful, 
 fatal inseparable thought. Is that man sane can he 
 be sane. "Would not the imagination of such a picture 
 almost drive a sensitive man mad. What think you, 
 then, would be the effect of this sad reality of woe ? 
 What law would you apply to it ? by what law was it 
 contemplated ? What human law punishes this manifold 
 wrong, or redresses this unparalleled injury? There is but 
 one law, which, while it prompts, sanctions the vengeful
 
 352 FORENSIC SPEECHES OP DAVID PAUL BROWN. 
 
 blow the great universal and irrevocable LAW OF NATURE. 
 A law which even religion seems to recognize, when 
 
 ~ O 
 
 we are told in Proverbs, that " Jealousy is the rage of 
 a man, therefore he will not spare in the day of ven- 
 geance." 
 
 This leads me to consider the facts of this case, as bear- 
 ing upon the state ot the defendant's mind on the 4th 
 day of November, 1857, when this offence is alleged to 
 have been committed ; and as also, at the same time, im- 
 parting aid to the defence, by reflecting light upon the 
 legal positions that have been already assumed. 
 
 It has been truly said, gentlemen of the jury, that 
 there is nothing in the romance of the drama that can 
 compare with the sad realities of human life. Look, now, 
 at this case, which is at once an illustration and an en- 
 forcement of these doctrines. Why the fates and the 
 furies combined, could never weave a blacker or a more 
 terrific web than that which is here presented ! a horri- 
 ble pall, which seems to shroud all the actors in this 
 bloody tragedy ! But let me not anticipate, but turn 
 your attention to the lamentable story. 
 
 Richard Carter arrived in this country, from England, 
 some twenty-five years ago. He took up his residence in 
 the neighborhood of Tamaqua, where he continued for 
 many years. The district attorney has told you, that 
 by a course of successful industry he acquired a large for- 
 tune ; that he had many excellent qualities, and an ex- 
 tensive circle of friends. Let us see how he deserved 
 these commendations. The fortune he had made, instead 
 of being applied to virtuous purposes was dedicated to 
 vice and to come to this very case, was the means relied 
 upon to procure the prostitution of the daughter of his 
 friend, his partner, and I might almost say his brother, 
 John McCauley. 
 
 In the year 1856, this man, who had acquired his 
 wealth among us, applies to Mr. McCauley for the privi- 
 lege of adopting or taking charge of his daughter, at
 
 SMITH'S CASE. 353 
 
 that time a budding girl, unpolluted even by the atmos- 
 phere of a corrupt and corrupting world. The father, 
 relying upon his honor, complies with his request. Car- 
 ter assumes to himself, ostensibly, the paternal duties in 
 relation to her ; and upon leaving her father, promises to 
 make her a " finished lady ; " and so he DID that promise 
 he kept literally she is finished for all the valuable pur- 
 poses of this life finished, almost, in regard to the hopes 
 of future salvation such being the influence which tem- 
 poral ruin sometimes produces upon our eternal hopes. 
 
 He places her at a respectable female college in an ad- 
 joining State. She remains there some months. In the 
 month of July he sends his summons to those in charge 
 of the college, to permit her to visit the city of Philadel- 
 phia ; she accordingly arrives, and he receives her at 
 Jones' Hotel. There, this man a professed father, having 
 adopted this child, and having refined her sensibilities 
 through instruction, and thereby rendered the crime into 
 which he betrayed her doubly deplorable, in the night 
 time, at the hour of midnight, the poor girl being un- 
 well, and the door left open for the use of her nurse (as 
 no man can doubt, except the district attorney) this 
 modern Tarquin, " this remorseless, lecherous, treacher- 
 ous, kindless villain " approaches, and finally enters her 
 chamber, and there commits merciful heaven, what 
 shall I call it? It is adultery, at the least; it ap- 
 proaches a rape- indeed, it is almost an incest ! This is 
 the man who is eulogized and applauded to the very echo 
 by the district attorney. This is the man over whose 
 ashes the commonwealth weeps ; and to conceal whose 
 crimes the commonwealth spreads her immaculate and 
 impervious mantle I wish I could plant flowers on his 
 grave, but they would only wither. If a man forty-eight 
 years old ; holding the position of a father ; professing to 
 be a guardian and a benefactor ; receiving an innocent girl 
 
 into his charge, in double trust from her parent, can be 
 
 23
 
 354 FORENSIC SPEECHES OP DAVID PAUL BROWN. 
 
 capable of committing such a crime as tbis ! he exceeds 
 all limits of penitence, all hope of mercy ! Let him 
 
 " Never pray more : abandon all remorse ; 
 On horror's head ! horrors accumulate ! 
 Do deeds to make Heaven weep, all earth amaz'd. 
 For nothing can he to damnation add 
 Greater than that." 
 
 The defendant's acquaintance with Miss McCauley, or 
 rather his first interview, took place some time in the 
 spring of, I think it was May, 1856. It was then, as you 
 will remember, that he said " She was a girl that filled 
 his eye." He had been a traveller North and South, 
 and, as he expressed himself, had determined that, in 
 choosing a help-mate for life he would neither take a 
 Northern nor a Southern lady, but one from the Key- 
 stone State, as combining the warmth of the South with 
 the strength of the North. Well, as we have said, he sees 
 Miss McCauley, and she makes an impression upon his 
 too sensitive and susceptible heart. He is, however, soon 
 drawn away by his occupation and perhaps time might 
 have obliterated this impression, but that in the month 
 of August, 1856, while employed in pursuit of his busi- 
 ness in New York, he is visited by his sister, who in- 
 forms him that Miss McCauley had written to him, and 
 had requested her to inquire whether he had received the 
 letter. This, let it be remembered, was after the inter- 
 course with Carter, at Jones' Hotel. Time is the great 
 discoverer. It is but a month after she has been deflow- 
 ered. This poor, unsuspecting young man is overjoyed at 
 the idea of having captivated a blooming young girl, by 
 whom he had been so deeply impressed at a first and 
 single interview. He has never received the letter, but 
 the recollection of her beauty is agreeably brought back 
 to his mind by this indication that there is at least one 
 person in the world besides the sister who now clings 
 around him to whom his welfare is not indifferent.
 
 SMITH'S CASE. 355 
 
 IvTow observe the delicacy, the respect, the inborn gentle- 
 ness of the prisoner he does not write directly to Miss 
 McCauley, but addresses his letter to Tamaqua, to the 
 care ot Richard Carter. 
 
 After this, in the month of December, Carter, Miss 
 McCauley, Miss Smith and the defendant are found in 
 Philadelphia, at the Madison House. At this period she 
 is nearly five 'months gone with child a matter perfectly 
 well known to Carter, and of course to her. At this 
 very time she exhibits the engagement ring, and apprises 
 Mr. Carter of her intention to be married to the defend- 
 ant. In addition to this, it is clearly established by sub- 
 sequent interviews and conversations, that he had full 
 knowledge of it, and that it met his approval. What is 
 the meaning of Carter's coming to town to dine with 
 Smith going to church with him and the ladies asking 
 for the postponement of the marriage for a few days, in 
 order that his presence might give it more form, cere- 
 mony and sanction ? And yet the district attorney says 
 that he, Carter, never knew of it, and considered it as a 
 joke. I should consider an argument of this character, 
 in the face of such facts as these, and the subsequent 
 ratification of the marriage, as the worst sort of a joke, r 
 a joke calculated to bring into ridicule both truth and 
 justice. 
 
 Smith does not postpone the marriage ; he did not feel 
 bound by the suggestions of Mr. Carter in relation to it. 
 To use his own language, he did not marry her for pecu- 
 niary advantage, or in reference to Mr. Carter's wealth 
 he married her for her own wealth, and as the daughter of 
 a poor man. But, we are told, Carter wrote a letter to her, 
 intimating, that she had better not get married, knowing 
 her " situation.' 1 This shows two things : First, that he 
 was the father of her child, as we aver. Secondly, that 
 he knew of the intended marriage, which they deny. The 
 writing of that letter clear, y confirms the paternity of the 
 child, and as clearly shows his knowledge of the intended
 
 356 FORENSIC SPEECHES OF DAVID PAUL BROWN. . 
 
 marriage. This letter is shown to the defendant while in 
 the full tide of hope and happiness. Surprise has been 
 expressed that it did not put him on his guard ; there are 
 many reasons why it should not put him on his guard. 
 In the first place, nothing is so blind as love. In the 
 second place, its very exhibition by his betrothed, would 
 have closed his eyes, if they were as keen as an eagle's. 
 In the third place, if he had been lynx-eyed, what could 
 he have seen being innocent himself incompatible with 
 the innocence of the woman of his affections, in the terms 
 " your situation ?" Certainly, that does not imply an 
 adulterous connection. "Well, then, in these circumstances, 
 no human voice forbidding, and all apparently approving, 
 on the 16th day of December, 1856, they were married. 
 Was ever matrimony, for a time, more blessed with seem- 
 ing happiness ; and on his part, with more pure and noble 
 kindness of heart, or more marked devotion to the part- 
 ner of his bosom ? Certainly never. At home or abroad 
 he is still the same. You may remember, that while on 
 a brief sojourn in New York whither his business had 
 drawn him he spoke rapturously of his conjugal bliss 
 of his having brought all his wanderings to a close ; that 
 he was about now to settle down in domestic peace, and 
 in companionship with a virtuous woman, and his first 
 love You .will remember, gentlemen of the jury, the 
 touching little incident of his removing the miniature of 
 his wife from beneath his pillow, and repeatedly and 
 rapturously kissing it ; and then, when detected in this 
 spontaneous manifestation of his feelings, by one of his 
 friends who was present, concealing it in his bosom, to 
 rest upon his heart. 
 
 " If Heaven had made him such another world, 
 Of one entire and perfect chrysolite 1 
 He'd not have sold her for it." 
 
 Permit me now to present to you, gentlemen, as the 
 shadow to this bright picture, a scene of misery, of con-
 
 SMITH'S CASE. 357 
 
 jugal and domestic misery such as you have rarely, if 
 ever, beeu condemned to witness. 
 
 He at length returns from New York, ajid scarcely re- 
 turns, when he is suddenly informed that his wife is in 
 the peril incident to a premature birth. This is on the 
 10th of April, 1857. Full of anxiety, he rushes to Mrs. 
 Leonard and her husband, to inquire what is to be done 
 with the embryo-birth. He wishes also to know the pro- 
 bable extent of his wife's danger ; his anxieties and his 
 sensibilities are excited to the highest possible degree ; all 
 his hopes are centred in her ; all his fears relate to her ; 
 he prepares the nurse ; introduces Mrs. Leonard ; rushes 
 for the doctor ; congregates around him almost all that 
 he knew.; summons them for what; to relieve his beloved 
 wife from peril ! and there they stand, living witnesses 
 to her unsuspected degradation, and his undying infamy ! 
 There they stand, to prove his wife a wanton; and him- 
 self a wretch, unfit to crawl upon the earth ! There are 
 the Leonards the nurse the doctor the sister and the 
 domestics of the establishment all witnesses of this most 
 deplorable scene 1 
 
 When he goes for the doctor and consults him, he in- 
 quires, after what period of gestation a child might be 
 born alive? "Well," replies the doctor, "it might live 
 possibly at six months ; but at seven or eight months its 
 living would be quite probable." " Alas ! then," says 
 Smith, " I am childless, and there is no hope, as I have 
 been married less than four months." The doctor goes 
 to the room of the patient, prepared for an abortion ; and 
 upon examination ascertains, to his surprise, that she has 
 reached her full term ! He returns home. In a few 
 hours poor Smith rushes again after him, and upon the 
 doctor's second visit, this faithless woman is delivered of 
 a child of full nine months' gestation ! Look, for a 
 moment, at this melancholy picture ! Look at the accu- 
 mulated horrors which distract his brain ! Look at the
 
 358 FORENSIC SPEECHES OF DAVID PAUL CROWN. 
 
 publicity which he, himself, has contributed to give to 
 this story of disgrace and woe ! 
 
 The doctor attempts to cheer him, by saying "you are 
 not the first man who has been presented with a child in 
 so short a time after marriage." "But," says Smith, 
 fully comprehending this insinuation, " I tell you, I have 
 been married less than four months, and I never knew my 
 wife until after the sanctions of my marriage. Indeed, 
 whatever may have been my faults through life and they 
 may have been many I can truly say, t have never been 
 guilty of illicit intercourse." Thus circumstanced, tell 
 me, ye severest, what could he have done ? 
 
 " Had it pleased heaven 
 To try him with afflictions ; had it rained 
 All kinds of sores and shames on his bare head 
 Steep'd him in poverty to the very lips 
 Given to captivity him and his utmost hopes ; 
 He should have found, in some part of his soul, 
 A drop of patience : But, alas ! to make him 
 A fixed fi<rure for the time of scorn 
 To point his slow unmoving finger at ! 
 Yet, could he bear that too well, very well ! 
 But there ! where he had garnered up his heart- 
 Where, either he must live or bear no life ! 
 The fountain, from the which his current runs, 
 Or else dries up ; to be discarded thence ! 
 Turn thy complexion tJiere, 
 
 Patience, thou young and rose-lipp'd cherubim 
 Aye 1 there look grim as hell !" 
 
 Do you remember the description of the nurse? Do 
 you remember how he fell, in an instant, from the top- 
 most to the lowest round of ambition and love? Still, 
 his gentleness and his kindness, in this terrific shock, at 
 least, partially remained. When about to desert these 
 scenes of his former joy ; upon being asked by his wife, 
 if he would take the wedding-ring he had given her, and 
 the Bible, which he had presented to her, " No," was the 
 reply, " I leave the former as a memento of my afi'ection,
 
 SMITH'S CASE. 359 
 
 and I leave the latter for the improvement of your future 
 life, and your consolation for what has passed." Call to 
 mind, if you please, the description of the scenes trans- 
 acted in that room. He threw himself across his trunk, 
 while preparing for his departure, and wept as no man 
 ever wept. The nurse says : " In all her experience, she 
 never witnessed, before, such a scene of sadness, agony, 
 wretchedness, and horror !" This untutored description 
 was the very perfection of eloquence, springing sponta- 
 neously from the heart. 
 
 Almost immediately after this appalling discovery, the 
 defendant forwards a letter to his sister, that lovely and 
 devoted girl, who now clings so closely to him, in his hour 
 of extremest need. He beseeches her to come up, for 
 God's sake ! Immediately, upon the wings of affection, 
 she flies to him. She finds him in the lowest depths of 
 grief he embraces her weeps upon her bosom begs of 
 her to control him, and to act for him ; and being totally 
 incapable of self-government, he relinquishes himself en- 
 tirely to her guidance. He tells her he has been most 
 grossly deceived ; that his honor is in the dust ; that he 
 would as soon have suspected the angels of heaven of a 
 wrong, as his wife. " Oh, God ! how I loved her, how I 
 worshipped her, and this is my reward !" His sister 
 endeavors to console him, telling him he must rise in his 
 manhood and strive to outlive his difficulties ; that there 
 was seldom a life pictured so dark as to admit of no ray 
 of hope. She refers him to the only source of true conso- 
 lation, to which he replies : " Would you not have a man 
 feel when he has his heart taken from his living body ?" 
 and then, in broken sentences, adds, through his sobs and 
 groans. " I was born to misery my life has been one of 
 continued sorrow I have known what it was to be a 
 fatherless boy I have known the sorrows of orphanage 
 I have been a houseless wanderer in a strange land I 
 have buried most of my kindred I have stood by the 
 grave of my mother one of the purest spirits ever lent
 
 360 FORENSIC SPEECHES OP DAVID PAUL BROWX. 
 
 to earth no son ever idolized a mother as I did mine 
 but all my life-sorrows are nothing to this ! This is the 
 grave of all my hopes ah ! merciful God, why was Inborn 
 to such a fate ! This grief, says the witness, continued 
 with little abatement until the evening of the day, when 
 he tore himself away from this scene of his agony, and 
 disgrace. 
 
 Where do we find him next ? It would, indeed, be 
 difficult to trace him in his erratic course he passes back 
 and forth in his devious career sometimes in Washing- 
 ton then among the mountains of Virginia then at 
 Baltimore then at North-east then at New York. 
 Wherever he went, he fancied he moved with the in- 
 delible mark of Cain upon his brow ! like Cain he wan- 
 dered a vagabond and a fugitive upon the face of the 
 earth like Cain he sought death, while death seemed to 
 flee from him. 
 
 He seeks, at length, relief from Mr. Townsend ; but 
 even there he finds that the law affords no relief for one 
 in his hapless condition. He grows daily worse and worse. 
 His constitution is ruined, his nervous system destroyed 
 his heart is broken and he resigns himself to one horri- 
 ble and absorbing thought, which sways the entire em- 
 pire of his mind. He conceives that he is hunted where- 
 ever he goes, by his betrayer and his spies surrounded 
 by them in Washington pursued by them in Baltimore 
 and threatened by them in Philadelphia. All these 
 scenes and circumstances have been minutely related by 
 the witnesses examined in this cause. Finally, laboring 
 under this delusion a delusion arising from the actual, 
 the unparalleled sufferings to which he had been doomed 
 for the last six months he again reaches this city in the 
 latter part of October, 1857. 
 
 The state of his mind, as manifested by his conduct, 
 produced directly by the wreck which his sorrows had 
 made has been so graphically described by Murphy, 
 Davis, Campbell, and others who speak of his condition,
 
 SMITH'S CASE. 361 
 
 within less than three days of the time of this lamentable 
 catastrophe, as to leave uo doubt upon the mind of any 
 man who is not himself mdd, that the prisoner was, at 
 that period, an irresponsible agent. The voice of reason 
 was either no longer heard, or heard through a false and 
 perverted medium. The will, which may appropriately 
 be called the executive officer of reason, had lost its power 
 and control. It was overthrown or so subjugated, as to 
 play the pander to those delusions of mind, which it was 
 utterly unable to resist. 
 
 We do not contend for the exemption of intensity of 
 passion, from punishment though there might be some- 
 thing in the horrors of this case to excuse even that : 
 what we contend for, is simply this, that where passion 
 and delusion too (whether that delusion arise from actual, 
 or imaginary, suffering), combine together against the 
 reason and the will, and thereby overthrow all mental 
 government and moral restraint, that there is no respon- 
 sibility for anything that may be done under the impulses 
 arising from this deranged condition of both body and 
 mind. There is not a madman, in a lunatic asylum, whose 
 insanity is not to be referred to this disorganization to 
 this revolution in the moral and mental structure to this 
 rebellion, as it may be called, of a man against himself: 
 his reason is not extinct ; but instead of swaying the gov- 
 ernment, it becomes subordinate ; and passion and illusion 
 usurp its sceptre. This is what I call insanity ! Do you 
 ask me for its manifestations? I will answer you for I 
 profess to know as much upon that subject as any of the 
 witnesses ; or as any of the books exhibit that have been 
 presented here before you. If I show you a man, who 
 has lived the consistent and holy life of a professor of the 
 gospel ; at peace with all mankind, and what is better, at 
 peace with heaven full of warm affections, and lively 
 sensibilities meek and modest as it becomes the vicege- 
 rent of the Lord to be ; and all of a sudden or after 
 having passed through the heaviest of all earthly afflic-
 
 362 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 tions you see that selfsame man playing the recreant 
 and the ruffian ; profaning the Almighty ; trampling upon 
 his laws, and cursing and swearing without excuse 01 
 apparent provocation ! What would you say of that 
 man? Would you pronounce him sane or insane? These 
 are manifestations of insanity: the sudden, total and 
 anomalous transition from all that was moral and vir- 
 tuous, to all that is vicious and devilish ! 
 
 " Now look upon that picture, and on this ;" compare 
 them and see whether they correspond or differ. The 
 mind, of all wonders, is the most wonderful; and the 
 complicated machinery of the body through which it 
 operates, and by which it manifests itself, is scarcely less 
 wonderful the former is of Heaven, the latter of earth 
 the former is immortal ; but by that very immortality it 
 dignifies its tenement of clay. Where they act in con- 
 cert where the emotions of the heart and the dictates of 
 the head are in unison entire and perfect harmony pre- 
 vails ; but in the conflicts of the passions of the human 
 heart with the intellectual government, disorder and mis- 
 rule in both, are the terrible result both are consequently 
 enfeebled : or if, finally, the morbid affections of the 
 heart should acquire the ascendancy over the intellectual 
 powers, reason, as I have said, must necessarily be over- 
 thrown. 
 
 But again : so fearftilly and wonderfully are we made, 
 that by the excessive indulgence of an unrestrained, mor- 
 bid passion; or by an insurmountable obstacle suddenly 
 checking that indulgence, insanity is equally likely to en- 
 sue. A check to the ruling passion of pride, of love, of 
 hope, of patriotism, of ambition an utter check, when 
 those passions are at their highest tide will cause them 
 (to use a strong figure) to overflow the banks of reason, 
 and spread around them destruction and desolation ! 
 This is what is called monomania and is characterized 
 by the ruling, or despotic propensity. Why did Lord 
 Castlereagh destroy himself? Why did Mr Whitbread
 
 SMITH'S CASE. 363 
 
 destroy himself? both prime ministers of England be- 
 cause they were so ensnared by political wiles as to be 
 defeated in the objects of their ambition ; they became 
 mad ; and suicide was the result. Why did Sir Samuel 
 Romilly take his own life ? a man of the highest intellect 
 and the warmest heart who was at once a public and a 
 private example while revelling upon the very summit 
 of distinction, and professional honor : he was bereft of 
 the partner of his bosom. His ruling passion was re- 
 sisted ; life became no longer of any value ; and he termi- 
 nated it with his own hand. The coroner's inquest placed 
 all these deaths to the account of insanity. 
 
 Come we now " to the last scene of all, that ends this 
 strange, eventful story." On the fourth day of Novem- 
 ber, 1857, at about five o'clock in the afternoon, Smith 
 presents himself at the parlor of the St. Lawrence Hotel. 
 At half past four, of the same day, you find him at the 
 store of Mr. Davis, in Walnut street, below Fourth. 
 There is nothing from which we could infer that he 
 visited the hotel with any design, or that he even knew 
 that Carter was there. The weapons were not prepared : 
 it has been proved they were generally worn, almost as a 
 part of himself, in his travelling agencies. Those, let it 
 be remembered, were the very weapons that, out of dis- 
 trust of his own self-control, he had, sometime before this, 
 deposited with Mr. Brinton ; expressing the desire that 
 he should hold them in safe keeping, and not surrender 
 them again to the owner even if he should beg and pray 
 for them as he was afraid mark that word, that if he 
 should encounter the man who had betrayed and ruined 
 him, he might be impelled, resistlessly, to commit some 
 act of violence. Possessed of these weapons, as I have 
 said, he encounters his adversary a powerful, bold, bad 
 man. As he approaches him, in a mild and modest way 
 according to the statement of the nephew Mr. Carter 
 " seemed not to know him : " seemed not to know the wretch 
 he had made 1 1 He must have known him, notwithstand-
 
 364 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 ing the change, perfectly well. He knew him well in 
 December ; he knew him well on Good Friday, but a little 
 week before the birth of the child ; and he must have 
 haunted his sleeping and his waking thoughts ever since, 
 if he had any conscience to influence his dreams, or to 
 stimulate his reflections. This very cold-blooded inso- 
 lence and cruelty, was enough to rouse the lion in any 
 man, sane or mad ! They are seated on the sofa beside 
 each other, conversing in a subdued tone ; so as to render 
 it impossible for the defence to extract from any of the 
 inmates of the hotel, who were present at the time, even a 
 single word, from which we might guess at the nature of 
 their conversation. We are merely told, by the nephew, 
 that Carter " smiled" Gracious Heavens ! could that man 
 smile amidst the wreck and ruin he had made ! 
 
 Exactly what took place between them none shall say, 
 but you may imagine nay, you are bound to infer, from 
 the affected want of recognition, and that lurid smile, 
 that he taunted the man he had betrayed. . Was this, 
 think you, a smile of benevolence of sympathy of con- 
 dolence ; or was it the smile of a demon in contemplating 
 the agonies of his victim. You may judge of it partly 
 from the result that follows. Had he denied had he ex- 
 plained his iniquities had he poured balm into the heart 
 he had lacerated, this deplorable event might not have 
 taken place. Everything tends to show that his conduct 
 opened the wounds which time had scarcely cicatrized ; 
 and produced an impulsive and involuntary act, which 
 deprived him of his life, and has brought the defendant, 
 borne to the earth, with unmerited odium and grief, to 
 abide this fearful charge. There is, however, a Provi- 
 dence even in the fall of a sparrow ; and we are relieved 
 from all doubt, upon that subject, by the unintentional 
 disclosures derived through the commonwealth itself. 
 The district attorneys, perhaps, will hardly choose to 
 remember a fact, which had been brought out not by the 
 will, but by the blundering, of the prosecution. It was
 
 SMITH'S CASE. 365 
 
 the very important fact testified by Lieutenant Deckhart 
 their own witness (while they endeavored to extract 
 from him the confessions of the prisoner, in order to a 
 conviction), that the prisoner in his conversation re- 
 marked, he " had done justice between God and man ;" 
 and then added, referring to the conversation with Carter 
 on the sofa, " he had even the audacity to tell me he was going 
 to see my sister /" Do our friends on the other side now re- 
 member this? Do the jury remember this ? That is the 
 spark that exploded the magazine ! If he had been ten 
 times sane; excited by his past wrongs, it would have 
 driven him mad; but being mad, and this being connected 
 in his distracted thoughts, with the monomania under 
 which he labored, it tended directly to that catastrophe 
 which is the subject of this indictment. [Here, District 
 Attorney Mann, interrupting the speaker, observed, " There 
 was no such evidence given, as I remember." Mr. Brown, 
 " Look to your notes, it will be found in the evidence of 
 the lieutenant of police, who conveyed the defendant to 
 prison." The counsel, examining their notes, admit it is 
 there.] 
 
 Immediately after the threat of Carter to visit the sis- 
 ter of the defendant (showing that my view of its effect 
 is right), they simultaneously spring to their feet and in- 
 stantly Carter receives a ball in his heart. Then, turning 
 from his victim, with that glaring and remarkable ex- 
 pression of the eye which was noticed by all the wit- 
 nesses, the prisoner declares that he " will surrender to no 
 one but an officer of the law." No doubt that even here, 
 he was governed by the illusion that he was surrounded 
 by Carter's spies. This is just the conduct of a maniac. 
 If this had been the act of a calculating avenger, would 
 it have been suspended or deferred for six long months ? 
 Would he not have gone to Tamaqua ? Is Tamaqua at 
 the opposite end of the world ? Could not the act have 
 been perpetrated there, without the probability of affect- 
 ing his own life ; in the by-ways of the country, in the
 
 366 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 concealments of ravines and coal-pits? Is it to be doubted, 
 that a man who had even a malicious mind to direct him, 
 would have sought his own destruction ; when it might 
 have been readily avoided, and his vengeance rendered 
 equally sure ? To say that he was bent upon a double- 
 death, is to give up one-half of the argument of his 
 sanity. In short, it is almost conclusive, with the other 
 proofs, of his total insanity. But they tell us that we are 
 bound to prove insanity to prove it clearly and to show 
 it existed on the 4th of November and at the very mo- 
 ment of the commission of this act. We have done so. 
 We have shown it, in its incipient stages, months prior to 
 the act. We strengthened that proof, by evidence of the 
 ancestral taint of insanity in the mother's, and in the 
 father's line. We have traced him down to the very 
 day, almost the very hour, when the act was perpetrated. 
 We have shown you that his monomania culminated at 
 that time and that his reason was dethroned ; and we 
 have given you the immediate, proximate and exciting 
 cause of that dethronement. Our defence then is, that 
 he was morally and mentally irresponsible and that this 
 irresponsibility was produced by the very man who was 
 its victim ! 
 
 Allow me here to say, that I am utterly amazed that 
 the commonwealth's counsel should have been so puzzled 
 and perplexed with the doctrines of monomania; and 
 that they should have conceived, that because insanity is 
 exhibited in reference to one illusion, it follows that that 
 illusion does not indicate a general unsoundness of mind. 
 The human mind is not like a piece of mechanism, 
 wherein one wheel may turn the wrong way, without 
 impairing all the others. In the mind, it may be said, if 
 the expression be allowable, that the one wheel turns 
 wrong, because all the others are more or less out of har- 
 mony or order. It is, in short, from the general infirmity, 
 that monomania is produced ; which, in its turn, re-infects 
 the rest, and at times would seem to transfer its own de-
 
 SMITH S CASE. 
 
 367 
 
 ranged character, if we may use the phrase, to the entire 
 mental machine. "When a mortification is detected at 
 the extreme end of the finger, a skilful pathologist 
 knows at once that there is danger to human life that 
 the disease is not merely local, but is, or will become, con- 
 stitutional ; and when a cancer, in the smallest shape, 
 presents itself on the surface of the human frame, it loses 
 its insignificance when it is remembered as a denotement 
 of its having spread its destructive fibres through every 
 portion of the vital system, riding as it does, upon the 
 blood which is the life of man. 
 
 The most clear, simple, and beautiful illustration of the 
 doctrine for which we contend and it is marvellous that 
 it was overlooked by the learned gentlemen is derived 
 from the loftiest human intellect the world ever knew, 
 and presented in the insanity of King Lear ; to which, at 
 the risk of being considered too poetical, and too enthu- 
 siastic in my admiration of the author, I shall take leave 
 to refer. There are two books which I shall never be 
 afraid or ashamed to quote, and which are worth more 
 than all the authorities whether bound in calf or lined 
 with calf that have here been arrayed in support of the 
 prosecution. The first is the Bible the foundation of our 
 eternal hopes: the second is Shakspeare the great ex- 
 pounder of all the springs and motives of human action. 
 
 The earliest indication of the approaching mental in- 
 firmity of the aged king, is in the interview with his 
 daughters, in which he discards Cordelia from his heart, 
 from her supposed want of filial affection ; and then 
 divides his kingdom between Goneril and Regan, as a 
 reward for their professions of devoted love. When, 
 subsequently, these ungrateful daughters lop off their 
 father's retainers, abridge his comforts, deny his au- 
 thority, and punish his friends ; then it is that the 
 whole current of his feelings, or his passions, is turned 
 back upon itself ; and his insanity is displayed more fully 
 than as originally exhibited. He becomes, then, a mono-
 
 363 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 maniac, tinder the direct influence of the rebellion of his 
 children : the unexpected discovery of which, is the im- 
 mediate and exciting cause. We have neither time, nor 
 disposition, minutely to trace the progress of his mental 
 alienation ; but in support of the theory assumed in this 
 part of our argument, and in refutation of the fallacies 
 of the commonwealth, let us refer to his language while 
 indulging in his maniacal ravings, and when exposed to 
 the peltings of the pitiless storm. 
 
 " Spit fire ! spout rain ! 
 
 Nor rain, wind, thunder, fire, are my daughters; 
 I tax not you, you elements, with unkindness, 
 / never gave you kingdom, calVd you children; 
 You owe me no subscription; why then let fall 
 Your horrible pleasure; here I stand your slave, 
 A poor, infirm, weak, and despised old man : 
 But yet I call you servile ministers. 
 That have with two pernicious daughters joined 
 Your high engender'd battles, 'gainst a head 
 So old and white as this. O ! O ! 'tis foul !" 
 
 What say our learned friends now? Do they maintain 
 that there can be no illusion growing out of facts ? Do 
 they say that there can be no reason iij madness ? " !N"o 
 matter and impertinency mixed ?" If they do, they have 
 my answer as thus derived from the knowledge of one, 
 whose authority has never been disputed. 
 
 But they tell us that he was not so mad but that he 
 knew RIGHT from WRONG. We do not utterly deny 
 that. He may have known right from wrong, as respects 
 matters not connected with his monomania ; but you 
 must remember that he conceived he " was doing God a 
 service" in ridding the earth of his betrayer in his own 
 language that, " God would smile upon it" Now, this, our 
 learned friends will not say, is a discrimination between 
 right and wrong: and as concurrent and coincident with 
 this, you will bear in mind, that he was perpetually 
 haunted by the notion that Carter had united with spies
 
 SMITH'S CASE. 369 
 
 for his .destruction, and was ruthlessly attempting his life. 
 That may have been all an erroneous fancy or an illu- 
 sion ; but what then becomes of the prosecution : they 
 maintain that the illusion is necessary in order to exempt 
 him from punishment ; and the only way in which they 
 attempt to extricate themselves from this dilemma is, by 
 suggesting that all his sufferings were real, and therefore 
 not illusory. Have the gentlemen forgotten that illu- 
 sions may spring out of realities ? Does not their Bible 
 teach them that *' persecution will make even a wise man 
 mad ?" Suffering was the cause, and delusion was the 
 effect; and the two combined produced this fearful result. 
 The doctrine of right and wrong, however, is exploded \ 
 and I am inclined to believe that those who originally 
 adopted it, could hardly have discriminated between 
 them. 
 
 In the Monograph on " Mental Unsoundness," by Dr. 
 Morton Stille* and Mr. Wharton, this test is laid down to 
 be absurd, and almost impossible and in this doctrine, 
 the highest psychological, and physiological authorities 
 concur. 1st. " The right and wrong test," say they " can 
 never be rightly applied, because it rests in the conscience, 
 which no human eye can penetrate. 2d. It is useless, 
 even if possible, as almost every case of decided insanity 
 is accompanied with a moral sense." In illustration of 
 this doctrine, a man named John Billman, confined in 
 the penitentiary for horse stealing, murdered his keeper 
 in circumstances of great brutality, and with so much in- 
 genuity as to elude suspicions of his intention, and almost, 
 concealed his flight : he hung a noose on the outside of 
 the small window, which is placed in the door of the cell 
 to enable persons to look in ; he then induced the keeper 
 to put his head entirely through, in order to look at some- 
 thing on the floor directly at the foot of the door ; the 
 noose was then drawn, and but for an accident, the man 
 would have been suffocated. Notwithstanding this at- 
 tempt, the same keeper was inveigled into the cell, alone, 
 
 24
 
 370 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 a few days afterwards, on the pretence of Bill man being 
 sick, and was then killed. Billmau then undressed him 
 changed clothes with him placed him on the bed in 
 such a position as to present the appearance of his being 
 there, himself traversed, in his assumed garb, the corri- 
 dor with an unconcerned air, addressed a careless ques- 
 tion to the gate-keeper, and sauntered listlessly down the 
 street, on which the gate opened. He was, however, soon 
 caught ; but his insanity was so indisputable, that the 
 prosecuting authorities, after having instituted a careful 
 and skilful examination, became convinced of his irre- 
 sponsibility, and united, upon the trial, in asking a ver- 
 dict of acquittal. He afterwards disclosed the fact, of his 
 having several years back murdered his father ; in cir- 
 cumstances which he detailed with great minuteness, and 
 which, upon inquiry, were found to be true. The father 
 had been strangled in his bed the son was arrested for 
 the crime, but so artfully had he contrived the homicide, 
 that by means of an alibi got up by a rapid ride at mid- 
 night, and a feigned sleep in a chamber, into which he 
 had clambered by a window he was acquitted. Here 
 there was not only a sense of guilt, but a keen apprecia- 
 tion of the consequences of exposure, and an abundance 
 of evidence of a long harbored intention, and intelligent 
 design. 
 
 Again, when Martin set fire to Yorkminster, a conver- 
 sation took place at a neighboring lunatic asj-lum, in 
 reference to this topic. The question was, whether Mar- 
 tin would be hanged ; and in its discussion, one madman 
 announced to the others, a position in which they all ac- 
 quiesced, that Martin would not be hanged, because he 
 was "one of themselves." 
 
 It certainly will not be maintained, that the conscious- 
 ness of the legal relations of crime, such as these cases 
 exhibit, confers responsibility, where it does not otherwise 
 exist. 
 
 There is one other case, with which our illustrations on
 
 SMITH'S CASE. 371 
 
 this subject will close, and which, perhaps, is more extra- 
 ordinary than either of those referred to, the case of 
 "Wiley Williams, which is to be found in the second vol- 
 ume of the " Forum," page 477. 
 
 Williams was a gentleman from the South, and had 
 been about a year in the Blockley Asylum ; having made 
 his escape, he wrote to counsel, wishing to know what 
 legal redress could be obtained for his unjust confinement, 
 ruined prospects, &c. In his letter he thus reasons : " If 
 I cannot obtain redress I will shoot Dr. Kirkbride for 
 having imprisoned me ; and should I be tried for murder, 
 my defence will be this if I am mad, as he said, I can- 
 not commit a crime ; if I am not mad, the deceased de- 
 served death for having deprived me of liberty, and 
 blighted my hopes." Following up this design, he shortly 
 after introduced himself into the enclosure of the garden 
 of the asylum, mounted into a tree, and as Dr. Kirkbride 
 passed, shot him in the head ; but happily the contents of 
 the gun lodged chiefly in the rirn of the doctor's hat, and 
 the result was comparatively harmless. Williams was 
 afterwards tried in this very court, for an assault and 
 battery with intent to kill ; but his insanity being estab- 
 lished, as he predicted, he was acquitted, and ordered 
 into strict custody in the penitentiary where he shortly 
 after died, having never been restored to reason. 
 
 But the counsel have further expressed their surprise, 
 at what they call the suddenness of this monomania. 
 1st. Let us inquire was it so sudden? Remember, he 
 was prepared for it it run in his very blood ; he had 
 reached the very time of life when it disclosed itself in 
 his father ; his predisposition ; his age ; the exciting 
 cause ; all cohered and united together to bring upon 
 him " the curse of the burning brow, and the sleepless 
 eye." For six month he had labored under the influence 
 of his afflictions ; his deplorable condition could, there- 
 fore, scarcely be said to be sudden, though the act might 
 be sudden that eventually arose from it ; and the cause
 
 372 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 might be sudden that impelled the act, which was directly 
 connected with his monomania. Talk of suddenness 
 read your books meditate upon human nature its frail- 
 ties and its weaknesses. Did you never hear the only 
 case that I think it necessary to refer to of the unfortu- 
 nate young man who, being engaged in a sporting expedi- 
 tion, shot his nearest and his dearest friend, and went 
 mad upon that subject on the instant; and ever after spoke 
 of little else than the calamity which brought him to this 
 most unhappy condition. According to our friend's no- 
 tion, he could not have been mad: first, because it was 
 too sudden ; secondly, because the origin of his madness 
 still dwelt deep in his memory. 
 
 The best view of the character and causes of insanity, 
 is to be found in Dr. Burrows' Commentaries, page 9, 
 which runs thus : " Every impression on the sensorium, 
 through the external senses, and every passion in excess, 
 may become a moral cause of insanity. Thus, all, how- 
 ever opposite, act as exciting causes, and will produce 
 this result. Joy and grief, pleasure and pain, love and 
 hatred, courage and fear, temperance and ebriety, may 
 have the same effect. Vices, also, which occasion changes 
 in the physical constitution. All impressions that affect 
 the feelings are conveyed to the sensorium, and operate 
 according to the degree of constitutional susceptibility, 
 and the nature and force of the impression. The action 
 of the heart is correspondent with the impression, and 
 reacts upon the brain and nervous system. Hence there 
 are two impressions ; the one primitive, affecting the sen- 
 sorium ; the other consecutive, but simultaneously affect- 
 ing the heart. Thus the nervous and vascular systems 
 are both implicated ; and in this manner moral impres- 
 sions become causes of insanity. The moral cause is, 
 therefore, always the remote cause; the physical, the 
 proximate or that state of the cerebral functions, which 
 immediately precedes, the peculiar action denominated 
 maniacal. A frequent cause of madness, is suffering the
 
 SMITH'S CASE 373 
 
 mind to dwell too long on one particular train of thought, 
 whether the subject be real or imaginary" 
 
 You will perceive, by a retrospect of the evidence, that 
 we have shown clearly, hereditary insanity, in the pris- 
 oner's family. We have shown also, that the physical 
 conformation and keen susceptibilities of the defendant, 
 rendered him peculiarly liable to the influence of exciting 
 causes, calculated to develop this disease. We have shown 
 you, that in his happiness, his joy became transport 
 that his whole soul seemed to be occupied by the object 
 of his affections ; that his prospects were not clouded by 
 a single anticipation of sorrow ; that his imaginary bliss 
 was perfect ; and that such continued to be his condition 
 of unalloyed happiness down to the 10th day of April, 
 1857. We have shown you that by the occurrences of 
 that dark day, all his enjoyments and bright prospects 
 were swept away, like the beams of the morning, by the 
 wings of the tempest ! That the revulsion, the shock, 
 was so great, as to change from that moment the entire 
 character of the man. His nervous system is utterly de- 
 stroyed the generosity of his nature is converted into 
 hatred and suspicion he becomes moody, morose, and 
 misanthropic all his thoughts are concentrated upon one 
 idea the betrayer of his confidence, which, " like the raven 
 o'er the infected house, bodes ill to all." For six long 
 months he finds no relief to this torture relief did I say, 
 his torments are rather increased, and every additional 
 hour is freighted with superadded horror ! 
 
 During his sad and wayward course, the very sympa- 
 thetic efforts resorted to by his friends in vain endeavors 
 to administer to his relief, defeat their own purpose, and 
 serve only to probe the wounds of his bleeding heart to 
 remind him of what he was, and of what he is. 
 
 There are afflictions for which there is no consolation 
 u no balm in Gilead no physician there :" their only 
 temporal cure is the grave. We are told that he sought 
 that grave, and that even, was denied him ! In this con-
 
 374 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 dition of mind and body, of brain and heart ; do you re- 
 quire an elaborate argument from me, to satisfy you that 
 he was utterly irresponsible for any act committed by 
 him, having a direct connection an almost immediate 
 connection with the great source of his controlling 
 griefs. The argument that should satisfy any man upon 
 this subject, is that which is abundantly supplied by the 
 conduct of the defendant, from the day of this disaster 
 down to the catastrophe which is the subject of this 
 charge. You can have no difficulty, assuredly, in finding 
 that he was a monomaniac on the 4th of November, 1857. 
 But, say the opposite counsel, you must show that he was 
 such, at the very time of the perpetration of this deed. 
 How do we show that ? for I agree we are bound to show 
 it. We clearly prove by Albright, their own witness, and 
 I am happy to say, a man of unquestionable veracity, by 
 whom the prisoner was arrested within five minutes of 
 the perpetration of the fell deed say at five o'clock that 
 at the time of the arrest " the prisoner looked very wild 
 out of the eyes was apparently very nervous his frame 
 shook his agitation continued, and he looked like an in- 
 
 O ' 
 
 sane man." Now, on the night of the same day, and on 
 the very next day, in his cell, both of the doctors speak of 
 him as being of an unsound condition of mind ; and one 
 of them refers, if not both, to physical symptoms, which 
 unerringly contribute to support that opinion. 
 
 Now, if we prove a man to be insane an hour before 
 the commission of an act ; and then prove him to be in- 
 sane within an hour after the commission of the act ; and 
 then follow that up, by showing that the unsoundness of 
 his mind continued for several consecutive days : do we 
 not prove as clearly, as though an angel spoke, that he 
 was insane at the time of perpetrating the injury ? Then, 
 having done all that, it is conclusive ; and we may now 
 turn triumphantly to the opposite counsel, to whom we 
 have thus transferred the laboring oar, and call upon 
 them to show which they are bound to do that at the
 
 
 SMITH'S CASE. 375 
 
 \ 
 
 time of the offence complained of, the prisoner enjoyed 
 an unclouded lucid interval, if they fail in that, there is 
 no hope in them. 
 
 They seem to acknowledge that this obligation rests 
 upon them, for they have made an effort and heaven 
 and earth shall witness a most wretched effort to dis- 
 charge it. They offer what they call rebutting evidence 
 for that purpose. What is their rebuttal ? It seems to 
 be a farce, tacked to a tragedy. They have called some 
 half dozen witnesses, to whom the prisoner was utterly 
 unknown ; who had never seen him before, much less 
 been acquainted with his habits, his sensibilities, his 
 general demeanor. No one of them having observed him, 
 more than five minutes, and even then, with the most un- 
 favorable opportunities for judgment or opinion, they 
 state what ! " that they did not see he was insane," and 
 with a little more conversation than "yes " or " no," they 
 observe nothing remarkable in the state of his mind! 
 Why, if these men will visit Dr. Kirkbride's asylum 
 even with ten times the opportunities which they have 
 enjoyed in this instance, and with a very natural suspicion 
 of insanity they would mistake every madman, proba- 
 bly for a superintendent, or a profound philosopher ; and 
 turn them all loose again upon the world. Men who 
 judge thus, or men who confide in such judgment, may 
 be congratulated upon the improbability of ever becoming 
 insane themselves, " folly, folly, is only free I" 
 
 Having thus briefly and imperfectly endeavored to es- 
 tablish our positions, and to overturn those of the prose- 
 cution with what success you shall determine I have 
 now done. The prisoner is in your hands. I ask no 
 mercy for him. I had almost said I disdain it but be 
 merciful to yourselves. By his conviction, it is true, you 
 abridge his sufferings, but may you not promote and ag- 
 gravate your own. Can you reflect upon such a verdict, 
 without being hereafter haunted by the "compunctious 
 visitings of conscience." If you think you can, why
 
 376 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 strike at once his unit out of the sum of life. And when, 
 after your labors are terminated, you return again to your 
 firesides to enjoy the charms of your domestic circle the 
 blessings of your household gods ; then tell your anxious 
 wives and children, who assemble around you, while you 
 relate the lamentable history of this triaK-tell them of 
 " one who loved not wisely but too well ;" tell them of 
 the pollution of female innocence the betrayal of confid- 
 ing friendship;' tell them of the prisoner's blighted hopes 
 his wounded honor his ruined fortunes and his shat- 
 tered reason ; tell them how he trusted, and how he was 
 deceived ji^and when your hearers, with tearful eyes and 
 trembling lips, earnestly inquire what relief you afforded 
 for all these monstrous and most unheard of wrongs ; tell 
 them if you dare, that to requite him for all these suffer- 
 ings, for all these shames, YOU ! YOU ! ! CONSIGNED HIM TO 
 A FELON'S IGNOMINIOUS GRAVE.
 
 WEAVER'S CASE. 
 
 THE STATE OF DELAWARE v. ISAAC H. "WEAVER. 
 CHARGED WITH MURDER. 
 
 The trial of this case lasted nearly a week, and resulted 
 in a verdict of " not guilty." 
 
 For the State. 
 
 Attorney General GEORGE P. FISHER. 
 
 For the Defendant. 
 
 Messrs. GEORGE B. RODNEY, of New Castle, Delaware, 
 and DAVID PAUL BROWN. 
 
 (377)
 
 378 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 SPEECH IN WEAVEK'S CASE. 
 
 WITH SUBMISSION TO THE COURT: 
 
 This case, gentlemen of the jury, has been so elabo- 
 rately and ably argued by the learned gentlemen who 
 have preceded me, that if you will give me your patient 
 attention, so as that which I say may be clearly under- 
 stood and properly applied, I will promise you, in the out- 
 set, not to trespass unnecessarily on your time. Indeed 
 the exhaustion of this protracted trial, would almost seem 
 to forbid it ; yet, notwithstanding that exhaustion, in 
 approaching this case I may truly say, that I feel just as 
 I desire to feel, in addressing a body of men, in relation 
 to whom I occupy the position I now do in regard to 
 you that of a comparative, if not an utter, stranger. I 
 have no apprehensions of the result ; for, with an enlight- 
 ened court, an honest jury and a good cause, what scope 
 is there for fear ? Still, the fatigues of such a trial as 
 this, and the natural influence of advancing years, ad- 
 monish me of the prudence and propriety of withdrawing 
 from deeply interesting and absorbing questions of this 
 character, and leaving the turbulence and anxiety of the 
 forensic field to younger, and abler, and more aspiring 
 men to battle and to bustle in. Yet, may it please your 
 honors, I do not know that a professional man can die 
 better than in harness in the faithful fulfilment of his 
 duties to his oppressed fellow-creatures ; which duties, we 
 are divinely taught, largely contribute to the discharge 
 of those obligations which we owe to a higher and heaven- 
 lier sphere.
 
 WEAVER'S CASE. 379 
 
 I do not forget, sirs, in speaking thus, that I am not 
 here to speak of myself, or for myself, but of and for the 
 unhappy prisoner at the bar unhappy, even if innocent 
 for his future life, unjust as it would be, will still be 
 blurred and blasted by the recorded imputations of this 
 day : doubly unhappy, if guilty for your verdict must 
 then consign him either to an ignominious death upon 
 the gallows, or a protracted, lingering, living death, during 
 the whole course of his temporal career, within the mel- 
 ancholy cells of a common jail. Were the choice mine, 
 the speedier the termination of existence, the better 1 Life 
 is only desirable, so long as it remains uudivested of all 
 that makes life precious. Death is a blessing, when it 
 terminates the scene of infamy and hopeless suffering, 
 and transfers a man to that tribunal which is omnipotent, 
 and that judgment which is infallible where his actions 
 and his motives can never be misinterpreted or misunder- 
 stood. 
 
 )( All that I can expect from you, gentlemen of the jury, 
 /as human agents, is to exercise human intelligence, and 
 to give me a fair and impartial hearing ; and, while you 
 decide like fate, to feel like men. But how can you com- 
 meusurately feel for the condition of this boy for his 
 father, now hanging over him for, I almost am afraid to 
 mention it for that absent mother, in her condition of 
 insupportable suspense ; while the hope of that father, and 
 the joy of that mother's heart, are awaiting the impending 
 blow which must consign them all to one common ruin ? 
 Your sympathies never can appreciate justly the agonies 
 of this scene. You may be fathers, it is true, and feel like 
 parents ; but you regard the prisoner as a child of others, 
 not as your own. Sympathy falls far short of that actual 
 experience, the lessons of which are only to be taught 
 through the medium of selfish sufferings ; and heaven 
 forbid that you should ever be subjected to such experi- 
 ence. 
 
 How precarious, gentlemen of the jury, how dangerous
 
 380 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 is the condition of youth puzzled with mazes and per- 
 plexed with errors with none of those safeguards to 
 rely upon, which age and experience alone can supply 
 launched like a skiff upon a stormy ocean, with full sail ; 
 without helm or rudder, chart or compass, star or pilot, 
 to enlighten or direct it in its course. This simple case 
 furnishes a fearful, practical and painful commentary on 
 the truth of this doctrine. 
 
 But, to approach the cause. Who is the defendant, 
 and what is the case ? You see before you, a youth of 
 eighteen summers just budding into manhood a father's 
 hope and a mother's joy charged with precocious guilt 
 with having imbrued his almost infant hands in the blood 
 of a human being a class-mate a friend and a brother ; 
 one with whom he had lived for years upon terms of 
 familiarity, harmony and affection ; and one, the untimely 
 loss of whom, no one can mourn more than himself. Such 
 then is the prisoner. Such the charge which this indict- 
 ment prefers against him. 
 
 Now, what is the lamentable history what the melan- 
 choly facts of this case, which call for discussion by the 
 counsel, and which must finally appeal to you, the sworn 
 twelve, for a decision ? At the age of fourteen, in the 
 year 1854, the prisoner at the bar, a native of Maryland, 
 was placed by his parents at the Newark College of this 
 State, for moral and literary instruction. Passing through 
 the usual gradations of college life, we find him on the 
 30th day of March, 1858, in the junior class, rapidly ap- 
 proaching his matriculation. At this time, in the various 
 classes of this institution, there were some thirty or forty 
 other students; all, or nearly all, older than himself; 
 among whom was the deceased at that period a member 
 of the senior class. These two young men had their 
 chambers at the college, but boarded, together with some 
 fifteen others, at the house of Mr. Platt, a respectable 
 gentleman, and one of the trustees of the seminary. 
 There, and thus, they lived, on kind and friendly terms,
 
 WEAVER'S CASE. 381 
 
 down to the fatal day to which our attention is more 
 especially to be directed, the 30th day of March, 1858. 
 They were members of the same society, inmates of the 
 same house, ate at the same table, and lived like brothers ; 
 notwithstanding the feeble and cruel effort on the part 
 of the State and which recoiled upon the State to es- 
 tablish animosity between them. 
 
 Before considering the events of that day, it is proper, 
 and may be profitable, that we should advert to some 
 antecedent matters introduced by the evidence, having 
 relation' to this charge ; and tending to show that evil 
 may sometimes spring from the mere sportiveness and 
 impulsiveness of the young, who, in the exuberance and 
 excitement of their feelings, too often overlook or disre- 
 gard the restraints of reason. 
 
 It would seem that for many years it had been usual 
 (a usage certainly " more honored in the breach than the 
 observance") at the periods allotted for public exercises, 
 for the excluded students by way of raillery, or amuse- 
 ment, or satire, to resort to sham programmes, ridiculing 
 the pretensions of the different candidates for public 
 favor. This, though certainly rough sport, had always 
 previously been taken in good part, and seemed to serve 
 chiefly to relieve the monotony of college life. Certainly, 
 no one ever imagined that any evil would result from it ; 
 and yet, as you will find, DEATH attended the sequel. 
 
 A public exhibition by a portion of two of the classes, 
 was appointed for this eventful this fatal day. The 
 programme and announcement of the performance were 
 made public, and a sham or burlesque programme was 
 also prepared for distribution, and deposited in the room 
 of Mr. Harrington, under double lock and key. About 
 twelve o'clock of this day (the existence of these sham 
 programmes having been- discovered), those who were 
 opposed to them, determined to destroy them ; and while 
 the others were absent from the college, at their respec- 
 tive boarding houses, the work of destruction commenced
 
 382 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 commenced only to end in the loss of life, and in the 
 consequent institution of those proceedings, which have 
 occupied our anxious attention for the last four days. 
 
 On that day in those circumstances while Hazel, one 
 of the students, stood sentinel, a committee of five of Mr. 
 Roach's party, suddenly present themselves at the door of 
 Mr. Harrington's chamber. They first attempt picking 
 the lock, that not succeeding, they violently burst open 
 the door ; then break open the bureau drawer, and finally 
 prize open and rifle the- trunk, where the offensive pro-, 
 grammes were found. These programmes are forthwith 
 conveyed, first to Miles' room on the third story, then 
 to Higgins' room on the second story, the door of which 
 they locked and barricaded. In the meanwhile, these 
 proceedings are reported to the absent students, of both 
 parties, who immediately and in great haste repair to 
 the scene of outrage and conflict. Mr. Roach, appears 
 to have been the leader of those opposed to the sham pro- 
 grammes ; and it will be remembered, as stated by one of 
 the witnesses, that the very morning before, he showed 
 great excitement, and prophetically declared, that if he 
 once got possession of the programmes, they only should 
 be taken from him over his dead body : this suggestion, 
 as we have seen, became a prediction. One might almost 
 see the finger of Providence in every page of human life, 
 but we do not seek for it, and either it is not seen or not 
 regarded. 
 
 But to resume. Friends and foes having reached the 
 college, rush into Higgins' chamber, Roach and Harring- 
 ton entering abreast : a conflict, a scuffle, a row or an 
 affray was the result, in which Harrington, Roach, 
 Miles, Giles and Frazier became most conspicuous. 
 
 A mass of the programmes was thrown into the stove, 
 saturated with camphene, or other inflammable fluid ; the 
 can was cast upon the floor ; a part of the burning papers 
 was rescued from the flames and trampled under foot ; 
 the fluid took fire ; the combustibles in the room were in
 
 WEAVER'S CASE. 383 
 
 flames, and the whole college edifice was in danger ; and 
 here, in the midst of this outrageous scene, in a room 
 fifteen feet square, are some twenty belligerent young 
 men, divided into parties and struggling for mastery. 
 
 This scene of commotion lasts from two to five minutes 
 no one pretends that it continued longer and towards 
 its close, Mr. Roach leaves the room, and is traced to the 
 front door, where he faints from the loss of blood, and in 
 less than an hour, he expires. These are the melancholy 
 outlines of this sad story. 
 
 Mr. Harrington, Mr. Giles, and young "Weaver are 
 charged with the homicide ; the two former have been 
 released under the habeas corpus, and the last is now upon 
 his trial, and awaits his doom from your hands : THE 
 
 CHARGE IS MURDER. 
 
 We are thus brought, before entering more particularly 
 into the facts at present, to a brief consideration of the 
 law ; and you will allow me to say in the outset, that 
 there is one matter, which, unless it be established beyond 
 the reach of a reasonable doubt, there is nothing for any 
 branch of the law to take hold of, under this issue I 
 mean the fact of the prisoner having struck the fatal 
 blow : unless that be ascertained, there can be no neces- 
 sity for discussing the degrees of guilt. "We are not 
 called upon, on behalf of the defendant, to show who did 
 strike the blow ; that is the business of the State, which 
 they cannot transfer to us ; and if they fail in it, your 
 verdict belongs to the defendant. 
 
 I repeat, then, if Weaver did not strike the blow, it is 
 nothing ; if that fact is even doubtful, it is nothing ; but 
 let me further say, if he undoubtedly did so strike, it is 
 not murder ; and that I will maintain until my dying 
 day. 
 
 This brings us at once to the attorney general's argu- 
 ment upon the law. He begins, as the prosecution always 
 begins, with the common law ; it is the most serviceable, 
 because it is the most bloody ; yet, surely, it has not much
 
 384 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 to do with the present question, except that the decisions 
 under it have been resorted to for the purpose of interpre- 
 ting the provisions of your statute, which, according to 
 my view, could have been readily understood of them- 
 selves. And, indeed, in regard to the statute, there ought 
 to be no difference of construction between us. Murder, 
 is killing with express malice aforethought. Murder in 
 the second degree, is killing with implied malice afore- 
 thought. Manslaughter, is killing from provocation or 
 hot blood, which implies a want of malice. 
 
 Now, what is malice aforethought? it is a preconceived 
 and express intention to kill that is to say, the facts 
 must show, or in other words express, that the defendant, 
 at the time of perpetrating the act, harbored the design 
 to take life, clearly and beyond all reasonable doubt. If 
 that be not clearly and conclusively shown, no killing can 
 be more than murder in the second degree a conviction 
 of which, substitutes for death upon the gallows, imprison- 
 ment for life in the penitentiary. Remember, murder in 
 the second degree also requires malice aforethought ; but 
 it differs from murder in the first degree, by excluding the 
 intention to kill. As regards this point in our case, we 
 shall contend that upon the facts of the case, there was 
 not only no intention to kill, but no malice ; and we shall 
 further contend, that if there was no malice, but if a blow 
 was struck in an affray or in the heat of blood, or in a 
 quarrel or struggle that lasted but two minutes, the of- 
 fence can in no possibility exceed manslaughter. Bear in 
 mind, I am speaking of it now upon the strained pre- 
 sumption that the defendant struck the blow, which the 
 prosecution has not shown, and cannot show ; and the 
 omission or inability to show which, entitles the prisoner 
 to an entire acquittal. 
 
 Pardon a few words more in regard to the law, as ex- 
 planatory of what I have said, and as addressed directly 
 to the court. First, then : a mere homicide is but murder 
 in the second degree. If the prosecution would elevate it
 
 WEAVER'S CASE. 385 
 
 
 
 to murder in the first degree, it must establish former 
 threats or grudges, or unequivocal attendant circumstan- 
 ces, showing a predetermination to kill ; or if the defend- 
 ant would reduce it to manslaughter sudden impulse 
 arising from a sudden fight or provocation, producing hot 
 blood, and evincing want of premeditation and want of 
 malice, must be shown by him. 
 
 Having thus given you a general outline of the circum- 
 stances, and presented the principles of the LAW which 
 must govern the results of this trial ; in order that those 
 principles may be legitimately brought to bear upon the 
 salient and vital points of the evidence, I must beg you 
 to indulge me, while, for your instruction and the benefit 
 of the prisoner, I again, and somewhat more particularly, 
 crave your attention to the testimony. 
 
 The whole time essentially embraced in this case, so far 
 as regards the perpetration of the offence, is from two to 
 five minutes ; and the whole space to which our attention 
 is to be directed during that time, and with reference to 
 this offence, is the chamber of Higgins. Now, within 
 that time and place, who ever saw Weaver ? Miles is the 
 only witness who saw him ; and he states that when he 
 saw him coming into the room, he, the prisoner, was from 
 four to six feet from Roach with other persons between 
 them and without any weapon that was seen. That 
 from that time, considering Weaver but a small boy, who 
 could do no harm, no further attention was paid to him, 
 nor was it known at what time he withdrew. Although 
 then it was supposed that Weaver could not do much 
 harm, it is now attempted to transfer to him all the harm 
 that was done to make him, in short, the scape-goat to 
 bear away all the offences of the college. 
 
 He was not intimately connected with either of the 
 parties : it is not shown that he was even concerned in 
 the concoction of the programme, or that he felt more 
 than a boyish interest in the agitations of the moment. 
 
 We do not impute falsehood to those witnesses who have 
 
 25
 
 386 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 testified against him, certainly ; but let it be remembered 
 that they were all swearing themselves out of a scrape, 
 and although they would not voluntarily perjure them- 
 selves for the whole State, yet, when their own feelings 
 were interested, and their own positions affected, it was 
 very natural, I do not say commendable, that they should 
 favorably incline to themselves each one being desirous 
 to clear his own skirts. 
 
 But, as has been said, after the lapse of two minutes, 
 Roach leaves that room, wounded and bleeding. No man 
 living contends, or no man living proves, that Weaver 
 was there then nor that he came out of the room after- 
 wards nor that he was in the room for a single minute. 
 Still, the State alleges he was guilty of murder they 
 substitute fancy for fact they look 'upon this scene with 
 jaundiced eyes ; nay, not jaundiced eyes, for that would 
 exhibit yellow tints, but with cruel, gloating, and blood- 
 shot eyes ; and they cry out before you with united voice, 
 blood, blood hot, reeking, youthful blood ! and they call 
 upon you to play the panders, or the butchers, to cater to 
 their sanguinary and depraved appetites. "Well, if they 
 must have blood, and you cannot resist their appeals, let 
 them prove the prisoner's guilt, and then gratify their 
 desires to their heart's content. 
 
 Poor Roach passes, or was taken, as has been said, to 
 the front of the building, and in an hour was no more. 
 
 One of the witnesses tells us, that he saw young Weaver 
 at that time do what, allow me to say, he never would 
 have done, if guilty kneel down by the side of the dying 
 victim, and in a mournful and peculiar voice, speak to 
 Roach, and ask him if he was dead ; and this young scion 
 of a witness, also testifies, that there was something very 
 remarkable, at that time, in the tone of the prisoner's 
 voice that it was mournful. Why ! what, let me ask, 
 should it have been ? What could it have been ? when 
 contemplating a youthful companion, his associate for 
 years while in the agonies of departing life.
 
 WEAVER'S CASE. 387 
 
 But to turn to another, yet closely connected portion 
 of this case : The KNIFE is a great scare-crow. Had it 
 not been for the knife this knife which has been flour- 
 ished about by the prosecution from the first to the last 
 of this drama Weaver would never have been thought 
 of, certainly never would have been suspected ; but be- 
 cause he had been in possession of this knife for several 
 months, it is now supposed or contended that he must be 
 the guilty actor in this bloody scene. Yet, strange to 
 say, the other knife the anomalous knife the myste- 
 rious knife, that was present at the witching time and 
 place, and has never appeared since but when last heard 
 of, was thrown into the coal-box in Higgins' room the 
 learned counsel for the State thinks, is of no consequence 
 whatever. Be this as it may, that knife, at least, was 
 never in Weaver's hands, and I shall not, therefore, dwell 
 upon it. It is not my business to convict the guilty but 
 to acquit the innocent. 
 
 But when enthusiastic, and learned young men, become 
 enlisted under the flag of the commonwealth, as adjuncts 
 of the attorney general, they see but one side of the ques- 
 tion, and rush onward under the influence of excitement 
 and strong impulse, aided, as in the present instance, by 
 distinguished talents, to the accomplishment of the work 
 of death. When my young friend, who opened the argu- 
 ment on the part of the State, shall bear upon his brow 
 the impress of a few additional years, his enthusiasm will 
 grow cooler his arguments become more liberal though 
 certainly never better. Thank heaven ! I never occupied 
 the same relative position to a prisoner that he does. I 
 cannot, therefore, perhaps, justly sympathize with him; 
 but I must say, that with my views, I would not, if I 
 could, have prosecuted this case as it has been prosecuted, 
 for the value of the entire State of Delaware. 
 
 But, to return again to the melancholy details : after 
 the deceased had remained bleeding for the space of thirty 
 minutes, he approaches the last confines of life, in tech-
 
 388 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 nical language, he is in articulo mortis. Dr. Cooper, Dr. 
 Ferris, Professor Porter, and other estimable persons are 
 surrounding him in his last agonies and then it is as 
 Dr. Cooper says, and he is supported by all the rest in 
 full consciousness, that the " dying declarations " were 
 made. Those were fearful declarations, undoubtedly. I 
 am among those, however, who do not accord to ordinary 
 dying declarations that full faith which I am disposed to 
 repose upon testimony when it undergoes the various and 
 severe tests, to which a living and present witness is sub- 
 jected. I have no doubt but that the dying man spoke 
 the truth, that is to say, that he believed all that he said ; 
 but I much doubt the accuracy of what he said. Judging 
 from the uncertainty of all that took place in the room 
 the clouded or smoky memories of all who testified the 
 suddenness, the confusion, the irritation, the complication 
 that existed at the time ; I should deem it very hazardous 
 to rely upon the statement of any man, living or dying. 
 I do not incline, therefore, to adopt this implication of 
 Harrington nor do I use the dying declarations for any 
 other purpose than to show, that while Roach designated, 
 according to his impression, the perpetrator of the deed, 
 he never referred to the prisoner in any manner ; and vir- 
 tually negatived the idea that Weaver was the perpetra- 
 tor. If Weaver ever stood before him (and it is said he 
 was wounded in front), would not the accused have been 
 seen ? or if Weaver stood alongside or in the rear of him, 
 would not the, weapon have been so seen, as to refer to 
 the party that held it ? I pass from this painful portion 
 of the subject, simply strengthening my position, by re- 
 ferring to the testimony of Dr. Cooper, who says, that 
 Roach being a very tall man, and the youthful prisoner 
 but little over five feet in height, he did not think it 
 probable that the latter could have inflicted the wound 
 upon the former, without, in some way, elevating him- 
 self above his natural height. It is clear that Mr. Roach
 
 WEAVER'S CASE. 389 
 
 never saw Weaver in the room and I summou him from 
 his grave as a witness for this defence. 
 
 But the counsel for the State object to these dying de- 
 clarations, because the victim was so near his death this 
 is strange doctrine ! that if I understand the matter 
 rightly is the very time when such declarations are alone 
 valuable. It is not in health, or in hope, that they are to 
 be taken. It is when a man is dying, or he thinks it, 
 that they alone become evidence or in the language of 
 Chief Baron Eyre, " when every hope in this world is 
 gone when every motive to falsehood is silenced, and 
 when the mind is induced by the most powerful con- 
 siderations to speak the truth a situation so solemn and 
 so awful, is considered by the law as creating an obliga- 
 tion equal to that which is imposed by a positive oath, 
 administered in a court of justice." 
 
 But they further say, that the deceased, at the time, 
 had not sufficient possession of his mental faculties. That 
 is an extraordinary argument, and directly opposed to the 
 medical evidence and tends only to show, that they are 
 willing to make one man mad, in order to convict another 
 of murder. 
 
 What next still "Weaver and the knife ! this is the 
 whole burthen of the charge. It is said, that Weaver 
 went to his room and washed his knife but again, I ask 
 where is the evidence of it ? There was no unquestion- 
 able blood in the room, anywhere no mark no " damned 
 spot." One witness, it is true, says, there was what 
 he supposed to be blood on the towel : that might all 
 have been, consistently with the ordinary accidents or 
 incidents of life, even if it had actually been blood. 
 But why was not that supposed blood analyzed, or ex- 
 amined microscopically, chemically, or otherwise that 
 it might have been ascertained whether it was or was not 
 blood ? 
 
 Again, as regards the knife: it has been said it was 
 found in Weaver's trunk. If you are going to make the
 
 390 FORENSIC SPEECHES OF DAVID PAUL BROWN". 
 
 defendant out a felon by forced construction, give him at 
 least the benefit of the ordinary craft and cunning of a 
 felon. If he had used that knife to kill Roach, would he 
 have taken the dagger to his own room, to marshal his 
 pursuers the way to his detection ? would he have left it 
 there exposed in an unlocked trunk ? would he not have 
 thrown it into the creek that ran near by ? or would he 
 not have concealed it in some one of a thousand ways, or a 
 thousand places, where it never could have appeared in 
 evidence against him ? It has not been proved that the 
 stain on the guard of the knife, was blood at all ; and it 
 has certainly not been proved that it was human blood : 
 and if both had been proven, Mr. Wilson has shown you, 
 that it must have been produced by having been handled 
 by Mr. Evans, after having first been seen spotless, by 
 himself. The language of the witness runs thus : " I am 
 positive, that, when after the death of the deceased, I 
 looked at the knife, there was no blood on the guard ; 
 but subsequently Mr. Evans handled the knife, his hand 
 being then bloody and I then saw blood on the guard, 
 and I am positive that the blood on the guard came 
 off of Mr. Evans' hand. There is no kind of doubt 
 in my mind, that the blood was not on the knife when 
 I first took it in my hands, nor is there any kind of 
 doubt in my mind, that the blood on the guard came off 
 of Evans' hand." 
 
 Then, as to the SHEATH, the inside of which is said to 
 exhibit traces of blood that is not denied, but it is ex- 
 plained by us, by showing that prior to last Christmas, 
 that knife was used by Wm. Adams, a young man of 
 Baltimore, in killing a ferocious dog; and that after 
 having been imperfectly wiped, it was thrust into this 
 sheath, and thereby left those stains, which the Common- 
 wealth's counsel have made so much of. They could 
 readily have tested the accuracy of that evidence, with- 
 out following poor Adams from one end of Baltimore to 
 another, up and down and crosswise, iu a sort of wild
 
 WEAVER'S CASE. 391 
 
 /joose chase, in order to overtake him in falsehood. Why 
 did not they prove it human blood ? It could easily have 
 been done ; for in this enlightened day, science can 
 readily discriminate between the blood of brutes and the 
 blood of man. 
 
 But there is another word I have to say in regard 
 to this matter, to show that it was neither the hand of 
 the prisoner, nor the prisoner's weapon, that produced 
 this fatal wound; and I infer that from the character 
 of the wound itself, such a knife as this might have 
 produced death, but it did not produce the wound in 
 the present instance, inasmuch as the form of the knife 
 is totally inconsistent with the character of the wound. 
 Dr. Cooper says, that he probed the wound to the 
 depth of two inches, with his finger, and that the 
 wound was of equal width : now look at that knife for 
 more than two inches above the point, it diminishes 
 gradually more than one-half the width of the blade 
 so that the wound inflicted would have gradually nar- 
 rowed, until it reached its termination. And it is not 
 straining a point, to say though I no not rest upon it 
 that it is quite as probable that the knife which was 
 thrown into the coal pit in Higgins' room, produced the 
 wound, as that this is the guilty instrument. 
 
 The jury will have observed, that in the discussion 
 of this case, I have made no reference whatever to the 
 very doubtful and equivocal confessions of the prisoner, 
 as testified to by Hudders and Bradley bearing relation 
 as they do, of father-in-law and son-in-law and neither 
 recommended by that relation by their own characters, 
 nor by the character and nature of their statement^ 
 to favorable consideration, or reliance. One of them 
 seems to be contradicted by others ; and it would rather 
 appear that he has contradicted himself. At all events 
 he professes motives, which are not in entire consistency 
 with his conduct upon the present occasion. He was 
 directly contradicted before the coroner's inquest, by
 
 392 FORENSIC SPEECHES OF DAVID PAUL BROWN. 
 
 the defendant himself; who stated to his teeth, that 
 the witness had misunderstood or misrepresented what 
 he, the prisoner, had said. Nor was this all: this 
 young man, without friends or advisers, immediately 
 calls upon Hudders, and boldly states to him, that the 
 language used " that he believed he had struck the 
 deceased with a knife," was not a true representation of 
 what took place ; but that the language actually used 
 was, " that he feared the possession of the knife would 
 be calculated to implicate him in the affair." Without, 
 however, pausing upon this branch of the subject, I 
 simply refer you, in relation to it, to what has been 
 said, and so well said, by my learned and able col- 
 league, Mr. Rodney. He has presented it so clearly, 
 so fully, and so cogently before you, as to obviate the 
 necessity for any further remarks of mine. A strong 
 man strikes a strong blow, and one that generally 
 serves its turn, without occasion for repetition. I have 
 no disposition to travel over the same field that has 
 already been so fully beaten. If you think that the 
 flimsy statements made by these men, or the imagina- 
 tive account given by Constable, are sufficient to resist 
 the reasoning that has been urged against them, and to 
 induce you to convict the prisoner, nothing that I could 
 say would be calculated to forestall his doom. 
 
 In my argument, as you must have perceived, I have 
 avoided as far as possible, those points of discussion 
 which I conceived to have been satisfactorily disposed of. 
 The case is almost too narrow, perhaps, in its essentials, 
 for two, to move abreast ; and I have therefore satisfied 
 myself with the humble task of a gleaner, collecting 
 the scraps, or the grain, which may have fallen by the 
 way-side so that nothing may be lost that may prove 
 available to the defendant in this death-struggle. 
 
 My humble task is now done however feeble it may 
 be, it at least possesses the merit of frankness, of can- 
 dor, and of brevity. I have urged nothing upon you,
 
 WEAVER'S CASE. 393 
 
 but what my own feelings and my own reason have 
 urged upon me, under the deep responsibilities imposed 
 by the investigation of this case. I pray you not to 
 resist that which has been said, from the notion, I fear 
 too generally entertained, that counsel often act under 
 influences inconsistent with impartiality or sincerity: 
 this, let me tell you, is an erroneous notion. There is 
 no class of citizens, not even excluding the clergy them- 
 selves, that are more faithful to their duties, or more 
 sensible to the high obligations of moral honesty and 
 professional honor, than an approved and well deserving 
 member of the bar. His duties are often of the loftiest 
 and most momentous character. They involve property, 
 liberty, reputation, and as in the present case, life 
 itself. And in relation to the discharge of all those ob- 
 ligations, a lawyer, as properly understood, never proves 
 recreant to his trust. 
 
 \/ The case is now in your hands. Having been es- 
 /franged from your families, probably for more than 
 the usual length of time ; after pronouncing your ver- 
 dict upon this fearful issue, you will return to them 
 again again to enjoy their smiles, and to share in their 
 consolations and their happiness ; and when you shall 
 retire to your repose, after the labors, and toils, and 
 privations you have passed through, that repose, we 
 trust, will be sweetened by the consciousness of having 
 this day faithfully fulfilled the pledges, which you have 
 solemnly assumed, by pronouncing the verdict . of " 
 GUILTY."
 
 PAGE. 
 
 Frontispiece. Photograph of David Paul Brown taken by F. 
 
 Gutekunst, Philadelphia, in the year 1868. 
 Speech in the case of John Binns, charged with Assault and 
 
 Battery. A First Speech 1818 7 
 
 Opening Speech, and Argument in the Impeachment of, Judge 
 
 Porter before the Senate of Pennsylvania 1825. ... 27 
 Speech in the case of the Journeymen Tailors, on a criminal 
 
 charge of Conspiracy 1827 93 
 
 Speech in the case of Lucretia Chapman, otherwise called Lucretia 
 
 Espos y Mina, tried for Murder 1832 135 
 
 Speech in the case of Dr. Frost on a charge of Manslaughter, 
 
 tried in New York City 1837 199 
 
 Speech in the case of A. W. Holmes, before the U. S. District 
 
 Court, on a charge of Manslaughter on the high seas 1842. 235 
 Speech in the case of Morgan Hinchman v. Samuel S. Richie et 
 
 al. : Civil Suit Conspiracy 1849 257 
 
 Speech in the case of Thos. Washington Smith, charged with 
 
 Murder 1858 340 
 
 Speech in the case of Isaac H. "Weaver, charged with Murder, tried 
 
 at New Castle, Delaware 1858 377 
 
 (395)
 
 A 000048129 1