Friday, May 31, 2013

"Without arms, they cannot vindicate their freedom"








Special Term, appointed by Act of Assembly, 

changing the venue from Jefferson to Mercer Circuit Court. 
Hon. John L. Bridges, Judge. 
Edward J. Bullock, Prosecuting Attorney.

 Monday, March 4th, 1839.

.Colonel Robertson then rose and addressed the court and jury as follows:--

...My object will be to present the case to you, in somewhat of a general aspect, for after all, it will be found that the great principles involved are but few, and these few are of well settled law. I that the able counsel. on the part of the prosecution, will endeavor to perplex you with almost countless cases from high authorities; but when these cases are well examined, it will be found that they are perverted and misapplied; and, in no degree, do they affect the right of self-defence, possessed by every individual in this country; and upon which we rest this cause....[Pg. 52]

...This right of self defence, is not a right derived from municipal law, it is not a thing that has been taught us, we have not learned it from books; it is principle of our nature, born with us, and has grown with us, in feeling and in strength. It is the most important right which belongs to man by the law nature; it is his birth right, of which human power cannot deprive him, and which man, when he entered into the social compact, reserved to himself to posterity--municipal law is a consequence not a cause, of the social compact. Before man entered into a state of society, each one judged of the wrongs which he supposed he had sustained, and took redress in that mode and manner which inclination and strength enabled him to do: this state things could not long endure, for the strong would soon gain possession of all that might belong to weak; and thus, all the principles of right and justice were broken down and destroyed. To remedy this, a plan was conceived by individuals of what is called the social compact. This social compact was an agreement amongst all, that the general affairs of mankind should be regulated by law-makers, chosen or appointed in such mode as might be from time to time prescribed by supreme authority. The great object in view, at the time of agreeing to this social compact was, to secure individuals in the exercise of certain great and inalienable rights which belong to man as his birth-right, and of which posterity could not be deprived. Amongst these inalienable rights will be found the right of every man to defend his person, his property, and his habitation. Hence we find that municipal law, in all civilized countries, is constantly throwing new guard's around these rights….[Pg. 55]

...The Hon: Judge Rowan then addressed the Jury

   Gentlemen Of The Jury:— 
    I solicit your already jaded patience, I will not say for a short time, for I know not how long it may employ me, to make the appropriate comments, upon the facts, the law, and the arguments of counsel in this case. I will promise you, however, not to be unnecessarily tedious. I have, in the patience and attention you have already displayed, a pledge that you will bear with me for at least a moderate length of time. My unfortunate clients, (confiding alike in their own conscious innocence, and your intelligence and unbiased state of feeling,) were willing that you might have decided their case without argument; but their will did not prevail. The Commonwealth's Attorney, Mr. Bullock, (in whom I am proud to find the son of honored parents, whose friendship I enjoyed in days past,) has evinced an entire competency to the duties of the station, with which he has been recently honored, and which, permit me to say, he honors, by the commendable candor and high talents, with which he performs his official duties. I regret that I cannot speak in the same commendatory terms of the candor of his aged and very highly talented adjunct. That gentleman represents the vengeful feelings of the near relations of the ill-fated Rothwell and Meeks, by whom he has been employed to convict, if possible, the accused. He has just closed a philippie of four hours against them, as remarkable for vigor of intellect, as for vehemence and impassioned zeal. He implores you, with great earnestness, to check (by a verdict of conviction in this case) the habit of wearing arms, and especially Bowie-knives, which has, as he says, latterly so much prevailed, and multiplied assassinations throughout our country. He considers the frequency of these melancholy incidents as infallible evidence of the growing degeneracy of public morals, indicating the rapid decline, and eventual subversion of our free institutions.

    It is the corruption of the people, he tells you, that saps the foundation of a free government; and he refers to tho history of Greece and Rome to confirm and illustrate his doctrine. He asserts that he has set, and that all good men ought to set their faces against the degeneracy of the times.

    Gentlemen of the Jury, I concur with him in the belief, that corruption is the great destroyer of free governments; but do not believe with him, that its prevalence is so alarmingly evinced by the incidents to which he has so glowingly referred. While corruption displays itself upon the surface only of the body politic, it is, like boils on the surface of the natural body, but an evidence of the exertion of the recuperative energies to throw off the pucant matter.

    The right of the people to carry arms, is little less than identic with their freedom. Without arms, they cannot vindicate their freedom. Without the right to possess, and wear them, they will very soon be without the spirit to use them, even in defence of their liberty. I feel no apprehension for the liberty of my country from that source. I fear nothing from the carrying of Bowie knives—brave men do not fear them, and cowards seldom use them. It is wrong to reason against the use of any good thing, from its occasional, or even frequent misuse. While our institutions are pure, and especially our Courts of Justice, we have nothing to fear; they will vindicate the just use, and punish the misuse of Bowie-knives or any other arms, which our free citizens may choose to wear. But I can refer him to an instance of the growing degeneracy of morals, more recent, and greatly more alarming, than any, or than all the instances he has named. The recent instance, to which I allude, of alarming degeneracy in the public mind and morals, is the composure, and even complacency, with which we have listened in the temple of justice, to the mercenary ebullitions, and sanguinary efforts, of the gentleman himself. It is in proof that he has received from Mr. Redding, the brother-in-law of the unfortunate Rothwell, a fee of $1000, to convict, if possible, the accused....

...But they carry bowie-knives, and the blade of bowie-knife is so long, and so broad, and the edge sharp, and it has such a terrific glitter, that they must be a bloody-minded, hot headed people. Besides, they fight the most desperate duels. Gentlemen, arms of some kind are worn more or less [in] all countries. They are in all countries used by [the] coward to assassinate, and by the brave for defence against assassins. If you want to put down use of bowie-knives, extinguish robbers and assassins, and the use will fall of itself. But as long good men may be assailed in their persons or property, by dishonest and dastardly men, the latter must be allowed the appropriate means of defence--and the arms for defence cannot be considered appropriate, unless they are at least equal in efficiency, to those of the assailants.

   But the wearing of arms whether bowie-knives, pistols, or whatever else, does not at all alter the rights of the citizens. For assault they should not be wanted, for defence, when occasion requires, they are of great value. The right of self-defence remains, under all circumstances the same. It is a primary element of our identity. Nature gave it, art cannot take it away--as derived from nature, it is limited to the use of no particular species of arms, and embraces every species. It is limited only by the obligation of benevolence on the part of the assailed, towards assailant--and benevolence does not require him love his fellow man more than himself. A man's right of self-defence does not result from the degree of criminality in the one who assails him. It is personal, inherent, and inseparably with his own exclusive individuality--a person may in many instances exert this right to the destruction of an innocent man. A madman (for instance) who is incapable of crime, but capable physically, of destroying a man, may be slain justifiably, in the exertion of this right--so may a somnambulist, under the same circumstances. In the case of a ship-wreck, when two of the passengers are struggling for a plank, which will sustain but one of them; one may justifiably kill the other to save his own life. This, gentlemen, is the law of nature, in relation to all animal existences, and the municipal law, in relation to man. See Grotius, p. 25.

    Then, gentlemen, why this denunciation of bowie-knives and pistols, for it can make no odds, if the killing was done justifiably, whether it was with the one or the other, or with a simple jack-knife. The question is not, whether either, or what weapon was used, but whether with, or without weapons, the killing was justified, or excused by the law--all that has been said, therefore, by Mr. Hardin upon the subject of carrying and employing arms is foreign from this case. It must have been intended ad captandum; or rather ad exitandum. Equally foreign from the case is all that he has said about Mississippi, and the Mississippians--whether the killing was done by a citizen of Kentucky, or by citizens of any other State. The question still is was the killing criminal, or innocent? That it was innocent in these gentlemen, because necessary to protect themselves from a band of conspirators--from a mob-- we have urged, and, I am now insisting.

    But, gentlemen, as Mr. Hardin has spoken so much at large upon the depraving consequences of the habit of carrying arms, let me give you my opinion upon that subject. I am now an old man--I was in this country when every man carried his rifle and his tomahawk, and his knife, wherever he went. He carried his arms to defend himself against the Indians, whose incursions were constantly apprehended--and during all that time there were no homicides, no man killed by his fellow--no man apprehended danger from his fellow-man. How happened this? The rifle, the tomahawk, and the scalping-knife, were, at least, as formidable instruments of death, and as depraving as the bowie knife and pistol--yet it never entered the mind of any one that men were more depraved, or more ferocious by the practice of carrying arms. The true reason is that there was not then in Kentucky a single coward. The men, aye, and women too, were all brave--a coward could not remain in Kentucky. The danger from the Indians was too continuous, imminent and proximate. He could not breast it. He could not bear the scorn and derision of the men and of the women, and children too, and had to leave the country.
    After the Indian war had closed--which was in 1794--the people of Kentucky laid aside their arms. People from every quarter rushed in crowds into Kentucky, and jars and bickerings resulted for a time, from the intercourse of people of different habits. They were settled, mostly, by an appeal to the prowess of pugilism. There were some suits of slander, and of assault and battery. Kentuckians gradually amalgamated with the immigrants, and we got along very well for many years--among the professional men, there was occasionally a duel.--There were no homicides, no assassinations, until the Legislature of Kentucky, in an evil hour, influenced, unconsciously, by a mistaken policy, enacted what is generally denominated the anti-dueling law. That law required every officer in the State, civil and military, from a constable up to the governor, including members of the legislature, and lawyers, and from a sergeant to a major-general, to swear solemnly that he would neither give nor accept a challenge to fight with any deadly weapon within, or out of the State of Kentucky. It was a law most evidently for the benefit of cowards-- who, without the oath, would never have fought nor accepted a challenge to fight a duel. But who by the administration of the oath were palmed upon the community, and upon themselves too, as men of spirit. Before the passage of this law, a man who might chance to be irritated with another, would, before he published a libel, or slander against him, pause and reflect, that if he persisted, he would be challenged, and must either fight, or be disgraced, and would wisely desist. He knew that the same consequence would follow from any personal violence to which his irritation might prompt him, and the effect was the same. But upon the passage of this law, dastards, when they had taken the oath, or aspired to offices which they could not fill, without taking the oath, filled their bosoms with dirks and their pockets with pistols, annoyed society with the insolence of mock heroism, insulted their brave competitors, and when about to be chastised, retreated to the wall, and killed the gentlemen they had wantonly insulted, a-la-mode Mr. Hardin's law. The vicious and depraved portion of the people having thus licensed to wear arms, the remaining portion were constrained to wear them in self-defence. The consequence is, that the community has been very much annoyed, and vulgarized by the short sighted policy of the Legislature. Sirs, the pistol was in the times I speak of, and had been ages throughout the civilized world, not only most effectual polisher of manners and morals, but a most efficient, though sad peacemaker. It held all who aspired to be gentlemen, and were of amenable to its tribunal, under a strong recognizance for their good behaviour. It is a tribunal instituted by nature, as an auxiliary, to the political institutions of society. It was a misdirected humanity, which influenced Kentucky, and States of the Union, who following her example, have attempted to suppress it. The object was to prevent the effusion of blood. The effect has to increase it tenfold. Just as the legislation to repress gaming by fines and penalties, has it one hundredfold, when a short act, making all sums fairly won, recoverable by law, would have diminished the evil, and improved the morals the people. Do not mistake me gentlemen, as to dueling; I am no advocate for it, I would not sanction it by law--but I would reluctantly connive at it, as an evil less, greatly less, than that legion evils which supply its place. As I prefer a high honorable, to a low and degraded spirit--fair, open, manly, and honorable conflict, to dastardly and cruel assassination, so I would leave it, as and all wise nations have it, by reluctant connivance. Perhaps my notions upon these are erroneous, but they are my deliberate views, and I do not wish to conceal them. Every duel is a lesson, more or less impressive, as it shall in favor of good morals, and polished manners--and although the fall of one, or both of the combatants must inflict pain and sorrow upon their immediate connexions, yet the effect is beneficial to the community in every view, and strengthening to virtue. The price paid by the community is very great, but the purchase is inestimably valuable. The good effects of this lamentable practice, cannot be obtained at a less price, nor in any other known mode--nor can it be suppressed by human legislation...."[Pgs. 106-123]

...He cannot hope to disparage the accused before any rational tribunal by inveighing against the habit of wearing arms. Strangers and travellers have been allowed, in all countries and by all people, to wear them--and even citizens of the meekest and purest characters have worn them in their own country, aye, and used them too, upon occasions far less urgent than that of the accused. It is wise sometimes to wear them in large commercial cities. Even in Louisville it is prudent for strangers to wear arms. The knives of the defendants saved their lives at that place beyond all doubt. Now the resident population of that city is as worthy, as peaceable, and as orderly as the people of any place whatever; but there is there, as in all other commercial cities, a floating mass of people who prowl the streets, especially at night, from whom all who
might be supposed to have money or other valuables have much to apprehend. When I say the wise and meek have carried arms, and used them too, I allude to the Apostles: you all remember that the apostle Peter drew his sword and smote the ear of off the high priest. This is an instance in which arms were not only worn, but used to protect a friend.

   Gentlemen of the Jury--I repeat what I said before, that the wearing of arms by citizens within the jurisdiction of their state, and in the bosom of society, is an evidence of the weakness and degeneracy of their government. The object of government is to protect the good and the virtuous against the bad and the vicious portion of mankind. When the good wear arms it is evidence that they cannot confide in the government for protection, and are obliged to rely upon their own vigilance and energies to save themselves from the bad. And whenever good men use their arms efficiently and successfully, and tragically if you please, against the mob or a conspiracy by which they are assailed, instead of the animadversion of the government they are entitled to its thanks and its gratitude. Sirs, I speak the language of soberness and truth when I tell you that the fall of Meeks and Rothwell, (which we all deplore,) by the arms of the assailed, has done more, by ten-fold, to repress and put down mobs and conspiracies in Louisville, and throughout the state of Kentucky, than the execution of those ill fated men by the government for the killing of one or all of the accused, had the accused fallen by their hands. There would be no mobs if it were certain that one or more of those who form the mob would certainly be killed. The principle of combination in a mob is, as I have before told you, COWARDICE. Each would fear that he might be slain, and thus, and for the same reason, every other man of them would abstain from the combination. Those assailed therefore by a mob should be considered by the people of every state as authorized by the government to kill as many as possible of the assailants; and so indeed they are to be considered, under a wise and just interpretation of our laws, which, when they cannot protect the citizen leave him to protect himself under the paramount authority of the law of nature....[Pg. 130]

 (John Rowan, (July 12, 1773 – July 13, 1843), was a 19th-century politician and jurist from the U.S. state of Kentucky. In 1802, Governor Christopher Greenup appointed Rowan Secretary of State, and he went on to serve in the Kentucky House of Representatives and the U.S. House of Representatives. In 1819, Rowan was appointed to the Kentucky Court of Appeals, serving until his resignation 1821. He was again elected to the state legislature in 1823. With the state reeling from the Panic of 1819, Rowan became the leader of a group of legislators dedicated to enacting laws favorable to the state's large debtor class. He believed the will of the people was sovereign and roundly denounced the Court of Appeals for striking down debt relief legislation as unconstitutional. He led the effort to impeach the offending justices, and when that effort failed, spearheaded a movement to abolish the court entirely and replace it with a new one, touching off the Old Court – New Court controversy. New Court partisans in the legislature elected Rowan to the U.S. Senate in 1824. After his term in the Senate, Rowan returned to Kentucky, where he served as the first president of the Louisville Medical Institute and the Kentucky Historical Society. In 1840, he was appointed to a commission to prosecute land claims of U.S. citizens against the Republic of Mexico, but resigned his commission in 1842 because of failing health.)

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