Gentlemen of the Jury:-I shall detain you no longer. It was, in fact, a matter of supererogation for me to address you at all, after the lucid and powerful exposition of the case which has been given by my respected friend, Col. Robertson. It was doubly so when it is considered that I am to be succeeded by a gentleman (Judge Rowan), who, better perhaps than any other man living, can give you, from his profound learning and experience, a just interpretation of the laws of your State; and in his own person a noble illustration of that proud and generous character which is a part of the birthright of a Kentuckian.

It is true I had hoped, when the evidence was closed, that the commonwealth's attorney might have found it in accordance with his duty and his feelings to have entered at once a nolle prosequi. Could the genius of "Old Kentucky" have spoken, such would have been her mandate. Blushing with shame at the inhospitable conduct of a portion of her sons, she would have hastened to make reparation. Let your

Gentlemen:-Let her sentiments be spoken by you. verdict take character from the noble State which you in part represent. Without leaving your box, announce to the world that here the defense of one's own person is no crime, and that the protection of a brother's life is the subject of approbation rather than of punishment.

Gentlemen of the Jury:-I return you my most profound and sincere thanks for the kindness with which you have listened to me, a stranger, pleading the cause of strangers. Your generous and indulgent treatment I shall ever remember with the most grateful emotions. In full confidence that you, by your sense of humanity and justice, will supply the many defects in my feeble advocacy, I now resign into your hands the fate of my clients. As you shall do unto them, so, under like circumstances, may it be done unto you.

The jury returned a verdict of not guilty as to all of the defendants.

IMPORTANCE OF THE DOCTRINE OF STARE DECISIS

LUTHER BRADISH.

The people, in forming the organic law of the government of this State, very wisely foresaw that, in its action and progress, questions of interpretation of the settlement of legal principles, and of their application, would frequently arise; and thence the necessity of constituting some tribunal with general appellate and supervisory powers, whose decisions should be final and conclusively settle and declare the law. This was supposed to have been accomplished in the organization of this court. Heretofore this court, under the Constitution, has been looked to by the people as the tribunal of the last resort in the State; and it has hitherto been supposed, that when this court had decided a case upon its merits, such decision not only determined the rights of the parties litigant in that particular case, but that it also settled the principles involved in it, as permanent rules of law, universally applicable in all future cases embracing similar facts, and involving the same or analogous principles. These decisions thus became at once public law, measures of private right, and landmarks of property. They determined the rights of persons and of things. Parties entered into contracts with each other with reference to them, as to the declared and established law; law equally binding upon the courts and the people. But the doctrine recently put forth would at once overturn this whole body of law founded upon the adjudications of this court, built up as it has been by the long continued and arduous labors, grown venerable with years, and interwoven as it has become with the interests, the habits, and the opinions of the people. Under this new doctrine all would again be unsettled— nothing established. Like the ever returning but never ending labors of the fabled Sisyphus, this court, in disregard to the maxim of "stare decisis," would, in each recurring case, have to enter upon its examination and decision as if all were new, without any aid from the experience of the Fast, or the benefit of any established principle or settled law. Each case with its decision being thus limited as law to itself alone, would in turn pass away and be forgotten, leaving behind it no record of principle established, or light to guide, or rule to govern the future.-[Hanford v. Archer, 4 Hill, 321.]

[124]

SPEECH OF DAVID PAUL BROWN,

IN DEFENSE OF ALEXANDER WILLIAM HOLMES, INDICTED FOR MANSLAUGHTER ON THE HIGH SEAS.

[1 Wallace, Jr., 1.]

AT A CIRCUIT COURT OF THE UNITED STATES, HELD AT THE CITY OF PHILADELPHIA, APRIL TERM, 1842.

LAW OF THE OCEAN. It is a sailor's duty to protect persons intrusted to his care, not to sacrifice them; and this obligation rests upon him at all times, in every emergency of his calling. He must expose himself to every danger, and protect the life of the passenger to the last extremity.

Where two persons who owe no mutual duty to each other, are by accident placed in a situation where both cannot survive, neither is bound to save the other's life by sacrificing his own; nor would either commit a crime in saving his own life, in a struggle for the only means of safety. In applying this principle, therefore, not only the jeopardy, but the relations in which the parties stand, should be considered, because the slayer must be under no obligation to make his own safety secondary to the safety of others. [United States v. Holmes, 1 Wall. Jr.]

The circumstances surrounding the remarkable case of the United States v. Holmes, present the melancholy romance and painful details which invariably attach to stories of marine disaster. It is, we believe, the only case on record in which the rights of sailor and passenger, and their relative duties and obligations in the hour of peril and shipwreck, have come directly under judicial consideration. It would seem at first blush as if the old maxim, that self-preservation is the first law of nature, a principle enunciated by Lord Bacon and

approved by elementary and speculative writers for nearly three centuries, had been disregarded here. The familiar illustration given by the high authority referred to, is that of two persons being shipwrecked and getting on the same plank, one of whom, finding it not able to save both, thrusts the other from it, whereby he is drowned. And this is declared to be excusable homicide. A careful examination of the case, however, shows that Mr. Justice Baldwin has adopted this rule, so far as it applies to those who are under no legal obligations to each other. But where such obligations exist, as between sailor and passenger, they remain in force at all times and under all circumstances. The facts of the case are as follows:

On the 13th day of March, 1841, the good ship "William Brown" left Liverpool, bound for Philadelphia. She had on board sixty-five passengers, mostly Irish and Scotch emigrants, and a crew of seventeen, including officers and seamen, making a total of eighty-two souls. On Monday night, the 19th of April, while about two hundred and fifty miles southeast of Cape Race, off the coast of Newfoundland, the vessel struck an iceberg and began to sink. The life-boats were launched. The first mate, eight seamen and thirty-two pas. sengers were crowded into the long boat; the captain, second mate, six of the crew and one passenger got into the jolly boat. The ship went down an hour and a half after she struck, carrying with her thirty-one passengers, who, being unable to get into the boats, perished. At the last moment, just before the wreck disappeared, the frail shells, burdened to the water's edge with human freight, were cut loose and set adrift upon the trackless waste of waters. The boats remained together during the night, and parted company Tuesday morning. Before separating, the mate in the long boat, realizing the extreme peril in which he was placed, tried to prevail on the captain to take some of the passengers from the long boat into the jolly boat, as the former was unmanageable, and said that, unless he did so, it would be necessary to cast lots and throw some overboard. "I know what you'll have to do," said the captain; "don't speak of that now. Let it be the last resort." As a parting injunction he directed the seamen in the long boat to obey the orders of the mate as they would his own.

The long boat was 22 feet long, 6 feet in the beam, and from 2 to 3 feet deep. She had provisions for six or seven days, close allowance, consisting of 75 pounds of bread, 6 gallons of water, 8 or 10 pounds of meat, and a small bag of oat meal. The boat, however, was leaky; the plug in the bottom was insufficient for the purpose, and it became necessary to commence bailing the moment she touched the water.

During the forenoon of Tuesday it began to rain, and the rain continued during the remainder of the day and night. The sea was quite calm, however, until towards evening, when the wind freshened and it became rough, and at times washed over the sides of the boat. Great masses of ice were floating about, and during the day icebergs had been seen. As the shades of night began to thicken, the ocean became more and more tempestuous, and the peril of destruction became imminent. The gunwale was within from five to twelve inches of the water. The crew rowed turn-about, and the passengers bailed. About ten o'clock Tuesday night, as the sea grew heavier and the chances of keeping afloat began to diminish, the mate, who had been bailing steadily, cried out: "This work won't do. Help me, God! Men, go to work." No attention was paid to

this order. Some of the passengers then exclaimed. "The boat is sinking. The plug's out. God have mercy on our poor souls!" In a few minutes after, the mate again said: "Men, you must go to work, or we shall all perish."

ALEXANDER WILLIAM HOLMES, one of the crew to whom these orders were addressed, was a Finn by birth, and had followed the sea from his youth. He was the last man of the crew to leave the sinking ship, and had become conspicuous for courage and daring in his endeavors to rescue the passengers from the wreck. The following incident will illustrate: A widowed mother and three daughters got into the long boat, but just as it was about being cut loose from the sinking hulk, to escape going down in the vortex, it was discovered that one of the daughters, who was sick and helpless, had been left behind. The mother, half distracted, called the child's name. "Isabel! Isabel! Come! Come!" she cried, but the poor creature was too feeble to stir. William Holmes heard the mother's grief, and climbing up the ship's side, at the peril of his life, he rescued the sick girl, and placing her on his shoulder, swung himself with one arm by the tackle into the boat. This scene is vividly portrayed by his counsel in his address to the jury. He had also parted with nearly all his clothing to protect the shivering women in the boat. Nevertheless, Holmes, the hardy and courageous sailor, in response to the command of the mate to "go to work,"

assisted in throwing the passengers into the sea. No lots were cast. The pas

sengers were not consulted, the only orders were not to throw over any women, and not to separate man and wife. Holmes and his associates threw overboard fourteen males and two women.

After three persons had been thrown out, Holmes came to FRANCIS ASKIN, who offered him five sovereigns to spare his life till morning, saying: "If God don't send us help by morning, we'll draw lots, and if the lot falls on me, I'll go over like a man." Holmes answered, “I don't want your money, Frank,” and cast him into the sea. There was a violent struggle, but the boat did not sink. The two women above referred to as having been thrown over, were the sisters of Askin, and there was some doubt as to whether they were thrown out or voluntarily sprang into the water, choosing to share their brother's fate.

The murder of Askin constituted the offense for which Holmes was indicted and brought to trial in the Circuit Court of the United States, on the 13th day of April, 1842.

The sequel of the catastrophe is soon told. Holmes was the ablest and most experienced seaman on board, and the mate concluded to take his judgment entirely as to what course to pursue. He advised not to make for Newfoundland, that it would never be reached, but to steer south where it was warmer, and take the chances of being picked up. He encouraged everybody, and bade them not despair. He tried to make a sail with a quilt, but the wind was too strong. On Wednesday morning the weather cleared. Holmes kept a sharp lookout, and long before any one else saw it, his trained and experienced eye descried a sail. He at once raised a sign of distress. The approaching vessel proved to be the ship Crescent, which, seeing the signal, put about and picked up the survivors. The captain and second mate with the persons in the jolly boat, after beating about for six days, were rescued by a French fishing lugger.

Holmes was indicted under the act of April 30th, 1790, entitled "An Act for the punishment of certain crimes against the United States (1 Story's Laws U. S.