his passion, he attempted first to ous men, and those feelings had take the life of his sister; then he been outraged by the crime of Hetook an oath that he would kill her berton; it was impossible for them seducer, and with this end in view, to divest themselves of sympathy he watched his movements for two for the accused, and to act with days, without food or sleep. He stern impartiality. Yet we are not berton probably being suspicious of satisfied with the verdict; in fact, his danger, at first secreted himself; we apprehend from it the most sebut on the 10th of February he at. rious consequences. We are not tempted to leave Philadelphia, to prepared to say that the prisoner visit a friend in New Jersey. Mer should have been found guilty of cer followed him to the boat, un- murder in the first degree. The seen; kept himself concealed dur. nature of the provocation, the fact ing the passage across the river; that the law afforded no means of but just as the boat touched the redress for the injury received, the wharf at Camden, he suddenly ap- possibility that the strong excitepeared and discharged four pistol ment of the prisoner had produced balls into the carriage in which He- a temporary insanity; all these were berton was sitting, one of which mitigating circumstances, which wounded him fatally. Mercer was might well reduce the crime to the instantly arrested, and was soon grade of manslaughter. But neither after indicted for murder. His trial counsel, court, nor jury took this commenced on the 28th of March, ground, nor would popular feeling before the Court of Oyer and Ter. have sanctioned it. Acquitted the miner of Gloucester County, New prisoner must be ; acquitted in toto; Jersey, and continued till the 6th of and that not even on the pretext of April, when it resulted in the ac. insanity, so adroitly urged, but (such quittal of the prisoner. This result was the popular opinion,) on the was what we had anticipated. The ground that the homicide was justiprosecution was conducted feebly, fiable, in view of the provocation. in respect to argument, and inso. The decision was remarkable. We lently, in respect to the exam. believe that, in some respects, it is ination of witnesses; the defense without a parallel ; but as it may was specious and eloquent; the trial soon become an acknowledged pretook place in a community strong. cedent, it deserves a careful scrutily prejudiced against the infliction ny. Let us glance briefly at the of capital punishment, and therefore trial. averse to the conviction of the pris. On the afternoon of the 28th of oner. There was a strong sympa. March, the court house at Woodthy in behalf of Mercer, which bury was thronged with anxious and plainly affected the court and the excited spectators. A youth was to jury; they were fathers and broth. be put on trial for his life. That ers, they had the feelings of virtu- life he had hazarded to avenge a isher. That sister, whose charac. fense was opened by Mr. Browne. ter was already the property of the His plea displayed much ingenuity. world, was to appear there and pub. He began by flattering the jury into licly acknowledge her own disgrace, the belief of their own supreme imto vindicate her brother; and the portance, and by impressing on their aged father and mother were to be minds a sense of the high responsithere also, to hear the story of a bilities which rested upon them. daughter's shame repeated, to save “We are assembled,” said he, the life of a son. How strong was " to perform a solemn and arduous the sympathy felt for the youthful duty. My part, it is true, is hum. prisoner. How universal the de. ble; but yours is of the highest and sire that he might escape the penalmost dignified character. Courts ty of the law. Never did a court and jurors represent on earth what assemble in circumstances of more the Deity is in heaven-justice. thrilling interest, or of deeper so- And this is emphatically the case, lemnity.

when the decision involves the The Hon. Daniel Elmer, one of mighty question of life or death.' Judges of the Supreme Court of the It behooves us, therefore, on this state, presided on the bench, assist. solemn occasion, to pay as strict ated by Hon. Messrs. Clement, Har- tention to the prisoner's defense, as rison, and Miller, of the Court of has been bestowed upon his accusaOyer and Terminer. The counsel tion; and then endeavoring to for the state, were George P. Molle- strengthen our minds by reliance son, Esq., attorney general, and upon Divine support, to do him im. Thomas P. Carpenter, Esq. The partial justice. And as of all the counsel for the defendant were nu- attributes of the Almighty, there is merous and able. First on the list none so divine, or so estimable, none we notice Peter A. Browne and W. which shines with such transcendent S. Price, Esqs., of Philadelphia- splendor as his infinite mercy, you the former of whom has been pre may be well assured that you will eminently successful as a criminal lose nothing, in His eyes, by ad. advocate ; then follow ex-governor ministering that justice in mercy." Vroom, Hon. senator Wall, Messrs. Here we behold the very perfecA. Browning, W. N. Jeffers, J. H. tion of rhetorical art. How adroit Sloan, R. K. Matlack, J. B. Harri. is the compliment to the dignity and son, and R. W. Howell—among integrity of the court! How mod. whom are some of the brightest stars est and reasonable the request that of the New Jersey bar. The pris- the prisoner's defense should be oner having appeared at the bar, a heard as attentively as his accusajury was empanelled without much tion! How specious the reference delay, only ten of the whole num- to the divine example! No wonder ber called being challenged by the that these words uitered in the sol. prisoner. It is worthy of note, how. emn and impressive manner for ever, that the counsel for the de- which Mr. B. is distinguished on fense would not suffer a juror when such occasions, riveted the atten. called, to be asked whether he had tion of the court, and secured a pa. formed or expressed an opinion of tient hearing for a plea eight hours the guilt or innocence of the pris. in duration. Yet after all, how fal. oner. The case was opened for the lacious is the idea that human tristate by Mr. Carpenter, who simply bunals can administer “justice in read and commented on the indict. mercy.” Under the divine admin. ment, and then called the witnesses istration favor is shown to the guilty, for the prosecution.

because the law of God is fully susOn the following morning the de- tained by the sufferings and death

of Christ. But human governments The prisoner is, as you perceive, of have no such provision. No Savior a slight, fragile form--of a bilious has appeared to “ magnify the law habit--of a nervous temperament, and make it honorable," whilst he and subject to great constipationpurchased pardon for the guilty, all of which predisposed him to inwith his own blood. To speak, sanity. He was mild, gentle, sin. therefore, of mercy in the decisions cere, and courteous—nothing vinof a human tribunal, is to speak of dictive. I use the very words which that which is impossible, in the very will be used by the pastor of his nature of things. That which some church.” After alluding briefly to call mercy, in such circumstances, the character of the parents of Mer. is but the sacrifice of law, the ap- cer, he proceeds ; “ Or Sarah Gard. probation of crime, the reckless haz- ner Mercer, the next in point of age, arding of the peace and property it is my duty to speak more at and lives of the community. Courts large. She is a mere child, being and jurors, indeed, should give the only a few days turned of sixteen. utmost weight to all that can be al. You will find (from the testimony of ledged in favor of a prisoner, but her pastor and teachers,) that she their duty is to maintain the law, by was a mild, amiable, modest, and administering impartial justice. retiring child; but not possessed

After this exordium, Mr. Browne of much strength of mind. That proceeded in a very graphic man. having herself no guile, she confided ner, to delineate the characters of too easily in others. She had been those concerned in the fearful trage. brought up very tenderly and affecdy under review. " The duty has tionately. Before the present oc. devolved upon me,” he continued, currence, she had never deviated “ as junior counsel, to open the facts from the path of virtue, nor done and the law upon which we rely for any thing to compromit her characthe prisoner's defense ; but before ter. She was never at a ball, play, I proceed to this duty, I must intro- or any other public place of amuse. duce to you the dramatis persone ment. Her acquaintances were vir. of this awful tragedy. The pris. tuous girls, and they were limited oner at the bar is, as you perceive, to two, or at most, three families.” a mere youth-I might almost say, “I regret that I am obliged to a mere boy, who has not yet ar. speak of the deceased, but justice rived at that age at which the law and truth demand it, and I must considers a male possessed of suffi- obey. The deceased, Hutchinson

a cient understanding to manage his Heberton, was an ABANDONED LIB. estate and property—or to make ERTINE by profession and practice. such contracts as are binding be. But he was an accomplished one. tween man and man ;-a note of He was handsome, well-made, and hand given by him, would, for want of fascinating manners. He fol. of legal capacity to sign it, be of no lowed no honest business or calling avail-his bond, or other sealed in for a livelihood. His counting-house strument, would, for the same rea. was the brothel ; his companions son, be null and void ; he is, in fine, libertines and harlots; his merchan. what in law is called "an infant, dise was lust; his commerce was being under twenty-one years.

But seduction. These were the princi. he has arrived at that age when we pal characters-next as to the facts.” feel keenly, perhaps most keenly, He then labors to show that He. any insult offered to ourselves or berton “spirited away” Miss Mer. those we love. The young blood cer from her father's house, and warms more rapidly and cools more “committed a rape upon her,” in slowly, than that of maturer years. the manner already described. We

5

have rarely seen a more sententious, murder. Blackstone, IV, chap. xiv, graphic delineation of character, p. 191. 3. If the assault with in. especially 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. i 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 de. that they did finally acquit him, and gree.) 4. If the prisoner (who had not in view of evidence.

he been present when the attempt The grounds of defense then to ravish was made, would have urged by Mr. B., and subsequently had a right to take the life of Heenlarged upon by his colleagues, berton,) was absent at the time of were two—the provocation given by provocation, but as soon as the cir. the deceased, and the insanity of cumstances were made known to the prisoner. The first of these him, in a transport of passion, is deserving of our notice. The sought out the offender, and as soon ground assumed was, “ that the he found him, and before time to homicide having been committed cool, took away his life, he was not during the heat of the prisoner's guilty of murder. The case mainpassion, roused by the enormous ly relied on here was that decided provocation of the deceased, the in 1612, (vide Rowley's case, Cro. prisoner was not guilty of murder.” Jac. 296,) in which “a boy having The provocation relied upon was fought with another and been beaten, that “the deceased having spirited ran home to his father, all bloody, away the prisoner's sister, and have and the father, presently, took a ing by fraud and falsehood, decoy. cudgel, ran three quarters of a mile, ed her to a place where she was and struck the other boy upon the within his power, had there com. head, upon which he died. It was mitted a rape upon her.”

ruled to be manslaughter done in The successive steps in the argu- sudden heat of passion." ment were as follows. 1. “Up

At this point the defense turned on a bare assault, with intent to entirely upon the question whether commit a rape, the female assailed the prisoner had sufficient time to is justified in killing the assailant; cool. The law says that“ in every it is se defendendo." (1st Hall, V, case of homicide upon provocation, p. 485.) This principle of law is if there be a sufficient cooling-time based on the natural supposition that for passion to subside, and reason to any virtuous female defilement is to interpose, and the person so proworse than death. 2. If Heberton voked afterwards kills the other, had actually ravished Sarah Mercer, this is deliberate revenge and not and she immediately afterwards had heat of blood, and accordingly killed him, she would not have been amounts to murder." Black. IV, guilty of murder, since there would 191. Mr. Brown argued that “the have been no previous malice. The question whether the prisoner had law allows a much lighter indignity 'sufficient cooling-time,' resolves it. than this (even pulling one's nose) self into this— did he cool?' If to be such a provocation, that the he did not cool, the time was not immediate killing of the offender is sufficient.” The fallacy of this rearegarded as manslaughter instead of soning is too apparent to need ex

posure. On the same principle, if now Mercer is acquitted likewise, Mercer had cherished his hostility and we have another precedent, toward Heberton for years, and which is to stand as a shield for then taken his life, the act would future murderers who may be seizhave been vindicated. True, in- ed with the mania of passion or of deed, he was infuriated by passion; rum.. true it may have been, that as

for

After Mr. Brown had closed, the thirty or forty hours he wandered examination of witnesses for the through the streets, day and night, defense was entered upon, and conwithout food, without sleep, and tinued during nearly five days. without one visitation of the usual Much of this time, however, was calls of nature, a voice seemed to consumed in hearing the conflicting follow him from house to house, testimony of physicians on the from place to place, night and day vexed subject of insanity, and in still ringing in his ear, KILL HIM!' discussing the question whether any • KILL HIM!' whilst every one he but a medical man was entitled to met echoed the words • kill him !' express an opinion concerning the • kill him!'" Yet if we are to ad. insanity of the prisoner. mit that a man may pursue one

The method of conducting the against whom he is enraged, with examination of Miss Mercer, in deadly weapons, night and day, our view demands the severest repuntil he finds an opportunity for ta. rehension. She was called to the king his life, and still be exculpa. stand when the court-room was ted on the ground that he had not crowded to suffocation, and com“ sufficient time to cool,” we are pelled to narrate the disgusting deestablishing a most dangerous pre- tails of her intercourse with Hebercedent, especially for those who ton, and then to submit to a crossknow no other distinction between examination of the most indecent right and wrong than that which is character by the attorney general, made by precedents in courts of who disgraced himself and the law.

court by proposing questions which The second ground of defense were altogether irrelevant, as well was insanity. It was argued that as grossly indelicate. Her testimo“ Mercer was a monomaniac when ny was taken down verbatim by the the homicide was committed, to reporters, and afterwards published such a degree that, as respects this in several of the newspapers of New homicide, he was unable to discrim. York and Philadelphia. The public inate between right and wrong.” morals are tainted when such a pes. Though this part of the defense tilential odor issues from the halls of was exceedingly labored by all the justice. counsel, it was impossible to make When the examination of witit a strong point. All that the tes. nesses was closed, Mr. Carpenter, timony went to establish was the in behalf of the State, summed up momentary insanity of passion-so the case, and entered into an ar. that this ground of defense did not gument to show that the prisoner differ in fact from the former, viz. was stimulated by passion and the that the act was committed in a desire of revenge ; and was neither highly excited state of mind, with insane nor provoked to such a deout sufficient time to cool. It is to gree as to justify the act of homibe regretted that the plea of insan- cide. He was replied to by Hon. ity is so often abused.

Wood was

Messrs. Vroom and Wall, who asacquitted on the ground of insanity, sumed the same grounds of defense and his case was quoted as a prece. which had been taken by Mr. Brown, dent in the trial under review ; and and evinced much ingenuity and