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his passion, he attempted first to take the life of his sister; then he took an oath that he would kill her seducer, and with this end in view, he watched his movements for two days, without food or sleep. Heberton probably being suspicious of his danger, at first secreted himself; but on the 10th of February he attempted to leave Philadelphia, to visit a friend in New Jersey. Mercer followed him to the boat, unseen; kept himself concealed during the passage across the river; but just as the boat touched the wharf at Camden, he suddenly appeared and discharged four pistol balls into the carriage in which Heberton was sitting, one of which wounded him fatally. Mercer was instantly arrested, and was soon after indicted for murder. His trial commenced on the 28th of March, before the Court of Oyer and Terminer of Gloucester County, New Jersey, and continued till the 6th of April, when it resulted in the acquittal of the prisoner. This result was what we had anticipated. The prosecution was conducted feebly, in respect to argument, and insolently, in respect to the examination of witnesses; the defense was specious and eloquent; the trial took place in a community strong ly prejudiced against the infliction of capital punishment, and therefore averse to the conviction of the prisoner. There was a strong sympa thy in behalf of Mercer, which plainly affected the court and the jury; they were fathers and broth ers, they had the feelings of virtu

An argument in favor of the abolition of capital punishment, is sometimes drawn from the fact that juries will often acquit a criminal, rather than expose him to the penalty of death. We should argue from this fact, the necessity of enlightening the public mind upon the subject of law and its sanctions. But the case of Mercer furnishes us with a strong argument against the abolition of punishment by death. We are told that Mercer took the life of Heberton, because he

ous men, and those feelings had been outraged by the crime of Heberton; it was impossible for them to divest themselves of sympathy for the accused, and to act with stern impartiality. Yet we are not satisfied with the verdict; in fact, we apprehend from it the most serious consequences. We are not prepared to say that the prisoner should have been found guilty of murder in the first degree. The nature of the provocation, the fact that the law afforded no means of redress for the injury received, the possibility that the strong excite ment of the prisoner had produced a temporary insanity; all these were mitigating circumstances, which might well reduce the crime to the grade of manslaughter. But neither counsel, court, nor jury took this ground, nor would popular feeling have sanctioned it. Acquitted the prisoner must be; acquitted in toto; and that not even on the pretext of insanity, so adroitly urged, but (such was the popular opinion,) on the ground that the homicide was justifiable, in view of the provocation. The decision was remarkable. We believe that, in some respects, it is without a parallel; but as it may soon become an acknowledged precedent, it deserves a careful scrutiny. Let us glance briefly at the trial.

On the afternoon of the 28th of March, the court house at Woodbury was thronged with anxious and excited spectators. A youth was to be put on trial for his life. That life he had hazarded to avenge a sister's wrongs; his hands were stained with the blood of her rav

had no redress by law. So if the only proper penalty for murder is abolished, the friends of the murdered, feeling that they have no adequate means of redress afforded them by law, will take vengeance into their own hands; each individual will become an executioner; and society will be resolved into its original elements.

isher. That sister, whose character was already the property of the world, was to appear there and pub. licly acknowledge her own disgrace, to vindicate her brother; and the aged father and mother were to be there also, to hear the story of a daughter's shame repeated, to save the life of a son. How strong was the sympathy felt for the youthful prisoner. How universal the desire that he might escape the penalty of the law. Never did a court assemble in circumstances of more thrilling interest, or of deeper solemnity.

The Hon. Daniel Elmer, one of Judges of the Supreme Court of the state, presided on the bench, assist ed by Hon. Messrs. Clement, Harrison, and Miller, of the Court of Oyer and Terminer. The counsel for the state, were George P. Molleson, Esq., attorney general, and Thomas P. Carpenter, Esq. The counsel for the defendant were numerous and able. First on the list we notice Peter A. Browne and W. S. Price, Esqs., of Philadelphiathe former of whom has been preeminently successful as a criminal advocate; then follow ex-governor Vroom, Hon. senator Wall, Messrs. A. Browning, W. N. Jeffers, J. H. Sloan, R. K. Matlack, J. B. Harrison, and R. W. Howell-among whom are some of the brightest stars of the New Jersey bar. The prisoner having appeared at the bar, a jury was empanelled without much delay, only ten of the whole number called being challenged by the prisoner. It is worthy of note, however, that the counsel for the defense would not suffer a juror when called, to be asked whether he had formed or expressed an opinion of the guilt or innocence of the pris

oner.

The case was opened for the state by Mr. Carpenter, who simply read and commented on the indictment, and then called the witnesses for the prosecution.

On the following morning the de

fense was opened by Mr. Browne. His plea displayed much ingenuity. He began by flattering the jury into the belief of their own supreme importance, and by impressing on their minds a sense of the high responsibilities which rested upon them.

"We are assembled," said he, "to perform a solemn and arduous duty. My part, it is true, is humble; but yours is of the highest and most dignified character. Courts and jurors represent on earth what the Deity is in heaven-justice. And this is emphatically the case, when the decision involves the mighty question of life or death.' It behooves us, therefore, on this solemn occasion, to pay as strict attention to the prisoner's defense, as has been bestowed upon his accusation; and then endeavoring to strengthen our minds by reliance upon Divine support, to do him impartial justice. And as of all the attributes of the Almighty, there is none so divine, or so estimable, none which shines with such transcendent splendor as his infinite mercy, you may be well assured that you will lose nothing, in His eyes, by ad ministering that justice in mercy."

Here we behold the very perfection of rhetorical art. How adroit is the compliment to the dignity and integrity of the court! How modest and reasonable the request that the prisoner's defense should be heard as attentively as his accusation! How specious the reference to the divine example! No wonder that these words uttered in the sol emn and impressive manner for which Mr. B. is distinguished on such occasions, riveted the attention of the court, and secured a patient hearing for a plea eight hours in duration. Yet after all, how fallacious is the idea that human tribunals can administer "justice in mercy." Under the divine administration favor is shown to the guilty, because the law of God is fully sus tained by the sufferings and death

of Christ. But human governments have no such provision. No Savior has appeared to "magnify the law and make it honorable," whilst he purchased pardon for the guilty, with his own blood. To speak, therefore, of mercy in the decisions of a human tribunal, is to speak of that which is impossible, in the very nature of things. That which some call mercy, in such circumstances, is but the sacrifice of law, the approbation of crime, the reckless hazarding of the peace and property and lives of the community. Courts and jurors, indeed, should give the utmost weight to all that can be alledged in favor of a prisoner, but their duty is to maintain the law, by administering impartial justice.

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After this exordium, Mr. Browne proceeded in a very graphic man ner, to delineate the characters of those concerned in the fearful trage dy under review. "The duty has devolved upon me," he continued, as junior counsel, to open the facts and the law upon which we rely for the prisoner's defense; but before I proceed to this duty, I must introduce to you the dramatis personæ of this awful tragedy. The prisoner at the bar is, as you perceive, a mere youth-I might almost say, a mere boy, who has not yet ar rived at that age at which the law considers a male possessed of sufficient understanding to manage his estate and property-or to make such contracts as are binding between man and man;-a note of hand given by him, would, for want of legal capacity to sign it, be of no avail-his bond, or other sealed instrument, would, for the same reason, be null and void; he is, in fine, what in law is called an infant,' being under twenty-one years. But he has arrived at that age when we feel keenly, perhaps most keenly, any insult offered to ourselves or those we love. The young blood warms more rapidly and cools more slowly, than that of maturer years.

The prisoner is, as you perceive, of a slight, fragile form-of a bilious habit-of a nervous temperament— and subject to great constipationall of which predisposed him to insanity. He was mild, gentle, sincere, and courteous-nothing vindictive. I use the very words which will be used by the pastor of his church." After alluding briefly to the character of the parents of Mercer, he proceeds; "Of Sarah Gardner Mercer, the next in point of age, it is my duty to speak more at large. She is a mere child, being only a few days turned of sixteen. You will find (from the testimony of her pastor and teachers,) that she was a mild, amiable, modest, and retiring child; but not possessed of much strength of mind. That having herself no guile, she confided too easily in others. She had been brought up very tenderly and affectionately. Before the present occurrence, she had never deviated from the path of virtue, nor done any thing to compromit her character. She was never at a ball, play, or any other public place of amusement. Her acquaintances were virtuous girls, and they were limited to two, or at most, three families."

"I regret that I am obliged to speak of the deceased, but justice and truth demand it, and I must obey. The deceased, Hutchinson Heberton, was an ABANDONED LIB. ERTINE by profession and practice. But he was an accomplished one. He was handsome, well-made, and of fascinating manners. He followed no honest business or calling for a livelihood. His counting-house was the brothel; his companions libertines and harlots; his merchandise was lust; his commerce was seduction. These were the principal characters-next as to the facts."

He then labors to show that Heberton "spirited away" Miss Mercer from her father's house, and "committed a rape upon her," in the manner already described. We

have rarely seen a more sententious, murder. Blackstone, IV, chap. xiv, graphic delineation of character- p. 191. 3. If the assault with inespecially for the purpose of ex- tent to ravish had been made, and citing prejudice-than that given of instead of Sarah killing Heberton, Heberton in the few words just quo- her father or brother had come into ted; and we have little doubt that the room and taken his life, he had the jury been called upon to would have been guilty of no crime render their verdict under the influ- whatever. 1 Hal. P. C. 486. This ence which it produced, they would also is looked upon as homicide se have acquitted the prisoner without defendendo. (In England, however, hearing the testimony; for it seems this species of homicide is regarded to have been under such influences as manslaughter in the lowest dethat they did finally acquit him, and gree.) 4. If the prisoner (who had not in view of evidence. he been present when the attempt to ravish was made, would have had a right to take the life of Heberton,) was absent at the time of provocation, but as soon as the cir cumstances were made known to him, in a transport of passion, sought out the offender, and as soon he found him, and before time to cool, took away his life, he was not guilty of murder. The case mainly relied on here was that decided in 1612, (vide Rowley's case, Cro. Jac. 296,) in which "a boy having fought with another and been beaten, ran home to his father, all bloody, and the father, presently, took a cudgel, ran three quarters of a mile, and struck the other boy upon the head, upon which he died. It was ruled to be manslaughter done in sudden heat of passion."

The grounds of defense then urged by Mr. B., and subsequently enlarged upon by his colleagues, were two-the provocation given by the deceased, and the insanity of the prisoner. The first of these is deserving of our notice. The ground assumed was, "that the homicide having been committed during the heat of the prisoner's passion, roused by the enormous provocation of the deceased, the prisoner was not guilty of murder." The provocation relied upon was, that "the deceased having spirited away the prisoner's sister, and hav. ing by fraud and falsehood, decoy ed her to a place where she was within his power, had there com. mitted a rape upon her."

The successive steps in the argument were as follows. 1. "Upon a bare assault, with intent to commit a rape, the female assailed is justified in killing the assailant; it is se defendendo." (1st Hall, V, p. 485.) This principle of law is based on the natural supposition that to any virtuous female defilement is worse than death. 2. If Heberton had actually ravished Sarah Mercer, and she immediately afterwards had killed him, she would not have been guilty of murder, since there would have been no previous malice. The law allows a much lighter indignity than this (even pulling one's nose) to be such a provocation, that the immediate killing of the offender is regarded as manslaughter instead of

At this point the defense turned entirely upon the question whether the prisoner had sufficient time to cool. The law says that "in every case of homicide upon provocation, if there be a sufficient cooling-time for passion to subside, and reason to interpose, and the person so provoked afterwards kills the other, this is deliberate revenge and not heat of blood, and accordingly amounts to murder." Black. IV, 191. Mr. Brown argued that “the question whether the prisoner had sufficient cooling-time,' resolves itself into this-did he cool?' If he did not cool, the time was not sufficient." The fallacy of this reasoning is too apparent to need ex

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posure. On the same principle, if Mercer had cherished his hostility toward Heberton for years, and then taken his life, the act would have been vindicated. True, indeed, he was infuriated by passion; true it may have been, that as "for thirty or forty hours he wandered through the streets, day and night, without food, without sleep, and without one visitation of the usual calls of nature, a voice seemed to follow him from house to house, from place to place, night and day still ringing in his ear, KILL HIM!' KILL HIM!' whilst every one he met echoed the words kill him!' 'kill him!" Yet if we are to admit that a man may pursue one against whom he is enraged, with deadly weapons, night and day, until he finds an opportunity for taking his life, and still be exculpated on the ground that he had not sufficient time to cool," we are establishing a most dangerous precedent, especially for those who know no other distinction between right and wrong than that which is made by precedents in courts of law.

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The second ground of defense was insanity. It was argued that "Mercer was a monomaniac when the homicide was committed, to such a degree that, as respects this homicide, he was unable to discrim inate between right and wrong." Though this part of the defense was exceedingly labored by all the counsel, it was impossible to make it a strong point. All that the testimony went to establish was the momentary insanity of passion-so that this ground of defense did not differ in fact from the former, viz. that the act was committed in a highly excited state of mind, without sufficient time to cool. It is to be regretted that the plea of insanity is so often abused. Wood was acquitted on the ground of insanity, and his case was quoted as a precedent in the trial under review; and

now Mercer is acquitted likewise, and we have another precedent, which is to stand as a shield for future murderers who may be seized with the mania of passion or of rum.

After Mr. Brown had closed, the examination of witnesses for the defense was entered upon, and continued during nearly five days. Much of this time, however, was consumed in hearing the conflicting testimony of physicians on the vexed subject of insanity, and in discussing the question whether any but a medical man was entitled to express an opinion concerning the insanity of the prisoner.

The method of conducting the examination of Miss Mercer, in our view demands the severest reprehension. She was called to the stand when the court-room was crowded to suffocation, and compelled to narrate the disgusting details of her intercourse with Heberton, and then to submit to a crossexamination of the most indecent character by the attorney general, who disgraced himself and the court by proposing questions which were altogether irrelevant, as well as grossly indelicate. Her testimony was taken down verbatim by the reporters, and afterwards published in several of the newspapers of New York and Philadelphia. The public morals are tainted when such a pestilential odor issues from the halls of justice.

When the examination of witnesses was closed, Mr. Carpenter, in behalf of the State, summed up the case, and entered into an argument to show that the prisoner was stimulated by passion and the desire of revenge; and was neither insane nor provoked to such a degree as to justify the act of homicide. He was replied to by Hon. Messrs. Vroom and Wall, who assumed the same grounds of defense which had been taken by Mr. Brown, and evinced much ingenuity and

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