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who, although dispersed and distracted, trace their history to the creation; a history that records that murder was the first of human crimes.
The first of these precepts constitutes a tenth part of the jurisprudence which God saw fit to establish, at an early period, for the government of all mankind throughout all generations. The latter, of less universal obligation, is still retained in our system, although other States as intelligent and refined, as secure and peaceful, have substituted for it the more benign principle that good shall be returned for evil. I yield implicit submission to this law, and acknowledge the justice of its penalty, and the duty of the courts and juries to give it effect.
In this case, if the prisoner be guilty of murder, I do not ask remission of punishment. If he be guilty, never was murderer more guilty. He has murdered, not only John G. Van Nest, but his hands are reeking with the blood of other, and numerous, and even more pitiable victims. The slaying of Van Nest, if a crime at all, was the cowardly crime of assassination. John G. Van Nest was a just, upright, virtuous man, of middle age, of grave and modest demeanor, distinguished by especial marks of the respect and esteem of his fellow-citizens. On his arm leaned a confiding
wife, and they supported on the one side, children to whom they had given being, and, on the other, aged and venerable parents, from whom they had derived existence. The assassination of such a man was an atrocious crime, but the murderer, with more than savage refinement, immolated on the same altar, in the same hour, a venerable and virtuous matron of more than three-score years, and her daughter, wife of Van Nest, mother of an unborn infant. Nor was this all. Providence, which, for its own mysterious purposes, permitted these dreadful crimes, in mercy suffered the same arm to be raised against the sleeping orphan child of the butchered parents, and received it into Heaven. A whole family, just, gentle, and pure, were thus, in their own house, in the night time, without any provocation, without one moment's warning, sent by the murderer to join the assembly of the just; and even the laboring man, sojourning within their gates, received the fatal blade into his breast, and survives through the mercy, not of the murderer, but of God.
For William Freeman, as a murderer, I have no commission to speak. If he had silver and gold accumulated with the frugality of Crœsus, and should pour it all at my feet, I would not
stand an hour between him and the avenger. But for the innocent, it is my right, my duty to speak. If this sea of blood was innocently shed, then it is my duty to stand between him until his steps lose their hold upon the scaffold.
"Thou shalt not kill," is a commandment addressed, not to him alone, but to me, to you, to the Court, and to the whole community. There are no exceptions from that commandment, at least in civil life, save those of self-defence, and capital punishment for crimes is the due and just administration of the law. There is not only a question, then, whether the prisoner has shed the blood of his fellowman, but the question whether we shall unlawfully shed his blood. I should be guilty of murder if, in my present relation, I saw the executioner waiting for an insane man and failed to say, or failed to do in his behalf, all that my ability allowed. I think it has been proved of the prisoner at the bar, that during all this long and tedious trial, he has had no sleepless nights, and that even in the daytime, when he retires from the halls to his lonely cell, he sinks to rest like a wearied child, on the stone floor and quietly slumbers till roused by the constable with his staff, to appear again before the jury. His counsel enjoy no such repose. Their thoughts by day and their
dreams by night are filled with oppressive apprehensions that, through their inability or neglect, he may be condemned.
I am arraigned before you for undue manifestations of zeal and excitement. My answer to all such charges shall be brief. When this cause shall have been committed to you, I shall be happy indeed, if it shall appear that my only error has been that I have felt too much, thought too intensely, or acted too faithfully.
If my error would thus be criminal, how great would yours be if you should render an unjust verdict? Only four months have elapsed since an outraged people, distrustful of judicial redress, doomed the prisoner to immediate death. Some of you have confessed that you approved that lawless sentence. All men now rejoice that the prisoner was saved for this solemn trial. But this trial would be as criminal as that precipitate sentence, if, through any wilful fault or prejudice of yours, it should prove but a mockery of justice. If any prejudice of witnesses, or the imagination of counsel, or any ill-timed jest shall, at any time, have diverted your attention; or if any prejudgment which you have brought into the jury box, or any cowardly fear of popular opinion shall have operated to cause you to deny to the prisoner
that dispassionate consideration of his case which the laws of God and man exact of you, and if, owing to such an error, this wretched man fall from among the living, what will be your crime? You have violated the commandment, "Thou shalt not kill." It is not the form or letter of the trial by jury that authorizes you to send your fellowman to his dread account, but it is the spirit that sanctifies that glorious institution; and if, through pride, passion, timidity, weakness, or any cause, you deny the prisoner one iota of all the defence to which he is entitled by the law of the land, you yourselves, whatever his guilt may be, will have broken the commandment, "Thou shalt do no murder."
There is not a corrupt or prejudiced witness, there is not a thoughtless or heedless witness, who has testified what was not true in spirit, or what was not wholly true, or who has suppressed any truth, who has not offended against the same injunction.
Nor is the Court itself above the commandment. If these judges have been influenced by the excitement which has brought this vast assemblage here, and under such influence, or under any other influence, have committed voluntary error, and have denied to the prisoner, or shall hereafter deny