The New York Herald Newspaper, June 25, 1875, Page 4

eg ne re A 4 fm the most solemn iorm known to our laws, con- . secrated 10 the service, Bat, Without intruding upom your province, I shall be able Lo assist you matertally, and as exigencies of the case require, Ihe jearned counsel have repeated and dwelt upon the evidence, 1n your nearing, so fully that 1 need not detato you by going over these volumes oj testimony. Arepetition now, in any form, of what you Have heard trom the 111 witnesses, would send you to your deliberations, days hence, weary and perplexeu. ‘Todt 1 may Dot be performing I must assist you to so arrauge aud classily the eviaence that you can grasp und apply tt. ‘Phac Lmay not leave your minds trouvied by the con- Hicting authorities you have heard cited, | mast State the rules of law according 10 var present $$$ $$ nr rr a fruitless service, conception of them. If {cau beip you to# clear ap- prehension of the precise questions you are to ‘acter ot the evidence, amd applicable Lo eact of Those questions, you may be prepared to is by & ratioual process, through tue severa! stages of 1n- quiry to a result. ‘iat great body of testimony can only be re- solved by 4 proper arrangement and distribution, Bome of It relates to the pripetpal question 1a issue, some of it Lo the credit due to certain Wwit- hesses, some Of It to the mere question of daia- ages. erne pleadings have been stated in your hearing, and you pereeive buat the charge of adultery, de- bied by the Suswer, lies at the \eundation Of the bas e. THE BURDEN OF PROOF ON THE PLAINTIFF, Upon the issue thus joiné@ the burden of proof rests on the plaintid. You ure also to understand that the evidence shoud be such as to carry cooviction to tae minds Di just and pruden* men—shouid point to the wetual gulit more directly tuan to any other rea- Bonable Lypotnesis, The Wrong charged in this complaint might be roved by direct or by circumstantial evidence. But'suen & charge 1s nut usually proved, or 1udee provaple, by direct and positive evidence. The Teason is obvious, Iu most lustances Where, un- ger social restraints, am apparently proper int- macy degenerates into licen tous wets, the evil in- tent aud life put on the garb of imnocence. To such cases, to ull Cases of doubt and difficulty, the iaw of evidence, seaching und dexible, applies pe- culiar tests—presumpuons and inferences drawn from facts aud from conduct, according to the dictates ol eXperience, 50 that, finally, the ques- wou of guilt or innocence may be determined by ibe jury im the lignt reflected by the surrounding nreuumstances. A few siuple illustrations, stated witn reference io a case of tuis Churacver, may enavie you to un- lerstand, suficiently for our present purpose, the liMerence between direct, circumstantial and pre- Mmpuye evidence, If a Witness should testy ihat he lad seen whe actual commission of tue fexual act charged, tua: would be «hatis caled direct and positive evidence. If a wituess should testify that the wife and the paramour, defend- ant, had occupied the same room all mght in sacn luuhner as Lended to tae conclusion that they bad Slept togetuer, or if he had admitted als gant, tat woud circumstantial evidence. 1, to a | ter 1eceived by tue deiendant explicitly charg: ng him With the adwitery, he had answered, umply saying, “I am sorry, and hope to be tor- | givea,’’ or ii, on bejug tous charged 1p a couver- | sation, by Que having @b interest in the matter, | he had made no answer whatever, tuat. by a owtural process Of reasoning, would ve presump- live evidence. | CIRCUMSTANTIAL EVIDENCE, | In aeting on Circumstantial or on presumptive | pvlvence a jury Should €Xercise great care, proceed | auuously, aS Meu are Wont .o do when traveiling | fn dim twilight on nufamiiar roads, and must dis singuish the notion arising on suspicion or con- ecture Irum the relation existing between tne | observed and the imierred tacts. Within the spirit aud terms of tne ilastrations stated you Will bave occasion to consider the ex- | isting jacts and tue inferences tuat may justly ve drawn irom them. The inierences mast have « healthy growth, spring from the facts naturaily as fruit rem the vine, and although yeu cannot trace the connection a8 Vou could feel the links of the ehain Which binds material objects 1ogecner, yet, to satisfy tae rule, you should perceive and be fully convinced that the connecion does exist, The evidence bearing On the principal question, thal of aduitery, may be taken up 1» its order, tius—Pirst, as lo tae writings reierred to: sec- ond, a8 to the oral admissions: thire, a5 to the tacit or Ligplied acimissions, and lourth, 48j to; tue general conduct of the aefendant. | | purpose briefly to call your attention to some of the inore limportant watrers fwiling under each Oi tuose heads, Your conclusions, however, shouid wor be drawn from one of these classes oO! evi- | deuce, out from all the testimony on this branch | bi the case combined. | In taking cp the writings referred to you will observe that plaintif’s letter of the 26th of December, 1870, demanding that the aefenaant should leave wis pulpit and the city was the first open act of hostitity. MRS. TILTON’S CHARGE. The demand was witudrawo at the interview | Aad by the parties at Mr, Mou!ton’s house ou the tvening of December 30, 1870. ‘ine piaiatiq claims | that that Was im delerence to the wishes of nis Wie. Althat time @ paper written by Mrs. Tii- ton in respect to Wer relavions to the detendant was held by Mr. Moulton. The copy of it which the plaintiff bad was torn up after having been fread or stated to the defendant, and tne original Was ulso tera up alterward by Mrs. Tilton, with her husbapa’s assent. Proof of the comtentg of that paper was ruied out, because the wri Was @ coniidential communication by the wife to husband and because he w: aa bo charge written by Mra. been evicence against Lhe defe: tvening Mr. Beecher, with the assentof the bus | band, called on Mrs. Tilton. He then obtained tae paper commonly called “the retraction,” after- | Ward surrendered to Mr. Mouiton, | THE “LETTER OF CONTRITION."* | The pext paper in order is that of Jamuarvi, 187. It i in Mr. Moulton’s writing, except the | Was not equal to such strict adheret NEW YORK HERALD, FRIDAY, JUNE 25, 1875.—TRIPLE SHHET. ; ean may be necessary. A single word may 6 Vitai to identity the subject, and determine the effect and application of au admission, ‘The testimony as to actual admissions of gullt by tue defeudabt was given ‘oe plainud, and | by Francis , Moulton, and by Emma U, Moulton, 18 wile. ‘That testimony has been contradicted by the deténdant. | TACIT OR IMPLIED ADMISSIONS. | ‘The third class of evidence in tne arrangement stated 18 as to tacit or Muplied adipissions. ln theory tt appeals toa principle pecuitar to pre- Sumptive evidence, itis assumed that, on suit bie occasions, mosi men have such revard for tueir own interests that, on being unjustly cuarged or maligned, they will speak out in deniai or justin. catlou, ence itis that silence may oven be re- yarued a8 confession, The most obvious dificulty in applying this doc- irine arises from the consideration that all meu may not act alike in the same circumstances, and that the Jury may Possibly aserive Lo a Sense of guilt waat really Was due to mere surprise oy to | some unknown restraint, But, as commouly up- plied, the doctrive seems quite reasonavie, “1s 1t not consistent with our experience, a just inler- ence, that @ man asked to pay money not due Willacny bis indepteaness—that uf unjusily accused he will assert bis innocence t it is of the essence of the presumption arising from mere sence that tue accusation or charge | ve made in express terms. Wuen tue testimony appears to come within the rule the talerence, if apy, to be drawn from aud the excuse for sileace | are’ to be considered oy tue jury. ‘The testimony of the piaintitf and of Mr, ana Mrs, Mowitou 18 aS to tWo forms 01 admisston: the | one oral, previously noticed; the otuer tacit oF implied, Luw unger consideration, ou may not ind the application of some of | another, difficult. | may be uselul, | GREAT CAUTION ENJOINED. In considering those portions of tnat testimony | whieh relate to the welendant’s actual adi:ssions of guilt you will recall the doctrive stated under a former head, to tue effect that u reasonavie doubt as (0 & Want ol apprehension, or of memory, Or OJ fairness, In (we Witbess proving such adimis- SionS 1m poses upon the jury the exercise of great cautioa, Upon toe testimony you will whetuer tue Withesses are correct in their state- But some specitic directions that testimony to One topic, and some of it to | inquire | | ments or whether the defendant wus wisunoder- | stooa by thew. in considering the other portions of their testi- mony as tu impued admissions, also contradicted by the defendant, you mquire whether in the con- versauous had by Bim Wilk the witnesses nis udul- tery WLU, the DIMILLIM’s Wile Was spoken of in cieur aud express terms. 11 you ind that he was | thus charged, +o that, acting on the impulse com- mon to lumocent men, be Would have demied it uewithout foundation, you will consider the in- ference to be drawn from, amd avy apparent ex- cuse Jr, Dis silence. Tee remaining class of evideuce as to ine prin- cipal question 1m issue relates 10 the conduct of the ceieudan:, TESTIMONY OF MRS, TILTON’S BROTHER, AND NURSE. In the firss place, you Wilt consider bis conduct | mm his intercourse With Mrs, Tilton, a8 proved by Josep o. Kicbards and Kate Carey. he cir- cumstances stated by them are claimed to dis- close @m undue lamiliarity, Your attention as veen called to @ series of | events, to the reasons which may lave led to cer: tain modes Ol Action, Of acquiescence, Of restraint; to occasional disturbances, appreiiensions and reseutments, lapsing Into seasous of peace and patient endurance. ‘The learned counsel bave given you their Views as to the siguimecauce of each lact and circumstance. But, in and through it ail, the Vital and ab.orbing question rewains, pot whether the uelendant acted wisely and weil, DUt as he would LOL have acied if innocent Of this particalar charge, “STEP DOWN AND OU'.?? I recur to tne leiter of the 26th o1 December, de- livered by Mr. Bowen, in whica the plaiutift said | to the deiendant, which you explicitly understapd, you imme- diately cease from the ministry of Plymouth cburch, and that you quit the city of Brooklyn as uresivence.” Tue question 18 as to the mauner lo Which this demaud was received, The piain- ufl’s theory seems to bave been that, asthe | offence charged in this complainc had been per- petrated, the reasons thus geueraliy referred to would ve apprehended, UD reading the letter the desendant said, “Inis man 18 crazy.’? It ts jor you lo consider whether tat remark was or was not in the nature of a suggestion tuat there were DO sepsibie reasons for making that demand, and whether, in conversation, or im toue and manner, eg reaewae betrayed any consciousness of gut It may be observed, also, in reierence to the in- terview of December 2, 1570, at Mr. Moulton’s house, when the vopy Of the paper calles Cr Jession” Was torn Up, that tae oral presentation of the subject, Whether in the exact terms of the written paper Or not, may have een sufficient to | awaken the apprehensions of the defendant, and to enable you tw judge, upon the evia manuer. ce, Of bis THE POLICY OF SILENCE. Tue policy oi siience or suppression, as it has been called, deserves notice with rejerence to the motives Which led the deieudant to act upon it. it was adopted upon conlerence, at an eurly stage of the troupie, initiated @ system of Management and ied to many devices. In some aspects it may have been prudential; in other aspects unwise, But, whatever the “ugly circam- Stance” underlying tt mi effort. Like mauy artificial expedients, however, it failed. Mr. Beecher sn course until the com- pointed, Mr. Tilton though 1t cr 1s claimed t fitiully it may be, like in spirit, he performed some service in that cau: until service became hopeless. But there were | uncharitable whisperings in the pudic ear, their source or origin not pew material, and Mnally actual denunciation came. Your attention bas been called to the meetings jo. line at tne bottom, and the siguature, writtea by hela by Mr. Bi Mr. Moulton and otuers, to Sir. Beecher, | the discaasions bad, to the papers prepared or A question of fact in dispute as to this paper | proposed, to th t to make early auswer to deserves your attention, Mr. ailon says that the Wvodhull card Published, and to the so- t Was dictated, sentence by sentence, and thatit calied “Woodhull scandal,’’ to the ailegea dis- ag iead over. Mr, Beecher denies that dictation | 1avor with which the West charges e met and ind tuat reaaing. | As tothe degree of credit to which th wit- nesses, tuus 0 condict, may be relatively entitled, | youare toremember that tuey speak of what oc- | carred at a tame Of great excitement. Trev may not bave been equally adected, but while the one Was pouring oul his thougnts in the agony of seli- depreciation, the other may weli hav en moved in sympathy. The law has temder cousideration jor an iofirmity of memory thusinierited; tue wit | Hess Is Not expected to speak of events wita clear- hess and certainty. AS to the subjeet thus spoken to by those wit- ou suould be prudent in reserence to mere Yeu are not to indulge im speci lightly consider # watter whicn vee! uirined because it may not seem reasonavie. If You were asked to determine @ question from the character, thought, or style of one well yOu would hesitate, because no one 1s alwa! perate Or muster Of bimsell. Our moeds and freaks o/ temper mar the harmony of thougat ana utterance. Your neigubor may usually hw @ staid quality Of speech, Woich so » eli comports With fis cuaracier that you recognize him by it, Hat the sawe man, when unduly moved, may have quite another method, aud surprise you by the incongruity. You witl, taerefore, seek to be d by the evidence as given. You take, first. 8 paper, With whatever of lutent and apparemt Tuay tend to support or impeacn it; sec- the statements, eXpianations, anda deniais, | bat the paper was Lo be used in cor- fecting the plaintid’s impressions, Whie Mr. Beecner was Le eigay | Mr. Moalton 7 ‘ Was Writing, wod witn bis asseot. It may well be thal lb the absence of @ deliberate course of dic- ation be could only note, in @ hurried ana imper- ect manner, detached ama striking expressions. fon will consider whetner he did so in wood faith oF NOt, aOu Witu what degree of success. Bat if the circumstances were not favorable to | the making of a correct report, had the writer | Wished to make it, Deitaer were they faveracle to the invention of What was written. You are to consider how tuis paper, read often and erisicised ireely 1m your hearing, is te be re- garded, with esprctal reference to the contro- verted question of jact to whic. Ihave called your attention. THE DEFENDANT'S LETTERS. The other papers belonging to tuis class of evi- Cence, in whicu the deiendant takes blame to hinna- fel’, huve been read severai times, wud peed, in | tals connection, no special treatment. | AS G genera) rule it 1s the province of the to iustruct the jury as to the import of a writing inevidence. That is mere especially 86 48 to cou- tracts. Butif the Writings are ambiguous, the circumstances under which they were prepared may be resorted to, and the question of intest aud Meaning be left to the jury. 1/ it does not appear tuat words were used in a special sense, you will assume thas they were used in their ordinary sense. lt appears from the papers before you, tnat of January 1, 1871, if you adopt it, and tne defend- letters written later, that he was conscious committed some wrong or offence afect- 9 plaintid and his family. With thet obser- ration as 10 the import of the papers, | submit ibem .0 your consideration, that you may, taki ihem in copnection with the proofs at large, d sermine What that wrong or offence wi Ly ‘bg to the second brance of te to tee principal charge in (be order stated, | cau your attention to the alleged oral admtssions, The consessions Of a party made deliberate: Against nis on interest, as to facts Known to an GLderstood vy idl, if clearly proved, are regarded a8 Of a Righ class of evidence, and deserveuly #0, because It is contrary to experience fur mea to ad- Tit What hurts them, if nut true, Lxperience ) Fatoer, that men evade or deny the truth When toe truth bart Court ORAL ADMISSIONS TO BE SCRUTINIZED, clearly understood, o satrly repeated what wai jon aBainst reiying on such testimony too im- pileitiy should find it# coanverpoise in the caution orahy are en orced in Courts of juste WMgagements to merry, and, with us, ma: consummation, may be proo! of Wores spokev; tout, in the abst aibie collusion, & vefoudent’s confession that OF she Was actually guilty of the act o1 adul- tery charged wiil support an action tor a divor You are #leo to remember that moat witnes: find 1% @imfeait to recall the words neard, and, HOM HECESI'Y, Are silowed ‘oO evate (ne suLstance of a conVersai:ou, Hui, i some stances, greater spirit of timidity, vacil- lution and '¥ which characterized the Mr. Beecner’s course throughout is to be aérutinized. ent to bave occurred under that arrangement are in dispu PRECAUTIONARY MEASURES. You will inquire wi rT atieniions were paid to Mrs. Woodnuli to conciliate her at the instance or with the approbation o/ toe delendaut; whetuer before Miss Turoer was sent off to school he fa- Vored that a8 @ precautiooary measure, oF contri- buted money in that view; and whether he re- id the presentation and prosecution uf the nar ‘ Mr. Beecher dia not oe act finally suppressed, those questiol you find that actions, or any of th pretension seXuai intercourse with Mrs. Tilton might be exposed, or from some otner and independent cause. You will also inquire whether the defendant re framed from puvishing @ denial or refutation of the allegations contained in the paper known as the Woodbull scandal, irom answerimg tue partic- ular inquiry made by Mrs. Bradshawin her let- ter to which he sent areply, or was held in the bondage of fear to Mrs, Morse from a sense of tne guilt now charged. ‘ “1 demand that, ior reasons | | one or two witnesses. and had robbed the plaintiff of a rich tn- heritance in the love of bis wile, and wheth: coupled with those charges, he believed that he had wronged the plaintu? by favoring @ !amil, separation and the dismissal by Mr. Bowen, an for those rea8ons spoke, wrote, acted and suifered as deacribed. If the wroug Was the adultery, the solution of What jollowed is easy. BEECHER’S ESTIMATE OF HIS WRONG DOING. But, if the wrongs or ofeu wetual or iin- puted, were of the otwer character stated, then & Just apprehension of the relation between the de- jendant’s state of ming and his conduct involves several considerations, What was bis personal | relanon 10 the Churen, to the of the reputation he estimate of bis worlt, to literature and sbould leave behind him }—what his concepuon of | the hacure and gravity o: tue churge o: impure solicitauous, Ol allehating a Wonian’s ilove trom her husband, and 1 the effect of such accusations, M publicly made ?—Wwhat bis Lotion oMtue extent | to wuich Mr, ‘Iiltom had beea injured as a journal. ist, ID DIS Jamuly, and as to tueir means of sub- sixtence ¥ The learned counsel claims that, upon the evi- dence, Mr, Beecher tad bo occasion lor griel, aa his advice that Mrs. ‘luton should separate irom her husband was pot followed, or as to Mr, Bowen's action, a8 that was not influenced by Mr. Beecher. You will consider the evidence and that view. Butdid tne deiendant, under a mis- apprehension, believe Wathe had been instru- micatal in iuflicting those tujuries upon tne plain. UM, and What, if any, effect Lad thas upon his conduct imake these suggestions that you may give them suca consideration a8 you tuink they ae- serve. ‘thus much as to the principal question In issue. Ihave now (to call your utvenuon tow quesuon woiecn, as 1 have said, Leiougs exciusively to you— numely, the credit due to Witnesses. CREDIBILITY OF WITNESSES, The statements of witnesses are to be consid- ered and weighed with @ due regard’to tmeir reia- tion to the cause, as in Interest, to the bias or prej- udice they muy Nave in respect to the parties or the subject matter under investigation, to con- tradictions, previous incousistent statements, to their knowledge of facts and the apparent dispo- sition to Make just aod true disclosures aud to | their Known or uscertainea characters. A vOod degree of respect and confidence is due to every citizen why bas occasion to Speak under outa io & Court of justice as to bis own righis or te nights of otners, But a certain degree of infirmity May and often does attacn; the memory may be defective, dat and events be copfounced. Witnesses, simple- munded anu houest, coniradict themseives and each other. On & Urlal some months ago lL re- member to have been mucti impressed by tne testimony of 4 worthy man, the president of an in- | surance company, WhO, Whe Lae Cuse Was still on, came back trom the city of New York to acknow- Jeage tis error and make a correction. He was as nouest iu lis first as to ois last alirmation; there was no actual perjury in eltuer, ‘his offence, as such, 18 the fruit of @ wicked intent, oi» wilful perversion of known facts, to work an injury to apotmer. Tue legislation of this State hus borne sUriking testimony Lo the virtue of our people, in alloWlug parties to be Witnesses in tueir own behall; even tue prisoner on trial for a crime to testily to bis innocence. But while | believe toat perjury is of less com- Mon occurrence than is imputed by tue popular view, it is acrime Of the gravest magnitude, 1s not qualilied by tu@ special Circumstances leading to its perpetrauion, de who, upon aay mi theory of honor, would be guuty of it, mignt, bad tbe temptation, commit any other crim has been sald, and upod bigh authority, that there is a distinction between % mere falsenood ana a le—the lormer an Untrue statement, made without gulle and without knowledge o1 ita want of trata, the latter w statement of wiutis Known bo be false, and Wiin intent to injure another. 1am disposed to respect the distinction. So, too, @ modern dramaust bas said, ‘fhe truch always, when it is proper to be spoken;’ a theory of value as applied to mere social Intercourse. But good men have stoog for the truch though it cost tueir hves. So, good men huve uttered falsehoods when only tacir own iuveresis were concerned. Walter Scott, as jong as he thought preper, denied that he was tae other of the Waverley Novels; it was his secret, fy CONFLICTING TESTIMONY, It is the duty of a jury, when Witnesses contra- dict each other, to seek to reconcile we conflict. ing Statements, to make allowances lur houest eirors, aud to accept tne suggestion of perjury reluctantly and from necessity. Ali testimony, as 1 e intimated, 18 at the risk of imperfect knowledge and imperiect memory. Witaesses, Who appear equally envitiea to credit, may give different accounts of (he same trausactiou; the difference going to the substance and effect, or only to the Immaterial details, In such cases you have substantial ently with circumstantial va- Tiety. Too much importance should bot ve at- uibuted to such differences, to the discredit of “witnesses, You may velieve that they intended to teil the truta, unless the contrary 1s reasonably clear, 4, 48 iar a8 you Can, seek to harmonize their testimony and discover the substantial trath. MOULTON’S CONTRADICTIONS. It is proper to rejer, in jess general terms, to Air, Moulton seems to have intervened as the open and avowed friend of Mr. Tuten. He appears to have underta! ate between ne parties, te recon as lar 48 possivie, to prevent the ler of their differences from ovtainimg pubiicity, | He states that euch was the real purpose and You will rememoer, in this connection, that, as | to ine several acts of repr defendant on his examis in, t#O Views, tives of action, are put jorth, the one, agreea with Mir, Moulton, to whose deferred, tnat silence suoula be merely acted on tha ue other, that in those ta. Stances le was governed by sympathy for the plaintif and Bis fauiiy. PLYMOUTH CHURCH COUNSELLED SILENCE. The jearned counsei sought to qualify some- what the pressure resting upon the defendant from tus policy of silence, a8 applied to tue Wood- bull scandal, by showing that the charch snared that view. Jthougnt that due to the dereudant, and it appeared toat af a stated meeting oO! the official representatives of tue church, held soon alter th ne subject Was mentioned, and tb should be beem the opinion ofthe Rev. Mr. Halliday, @ gen- teman entitled to great consideration in nis re- lations vo the churcu. HE MIGHT HAVE TRAMPLED IT You bave beiore you the eviden was done and suffered by the defendant under toe policy of slience and suppression, aud the ques- tion 14 a8 to Bis motives, Theinlerence you might be justified in drawing could be readily applied it the Wreng he Wus conscious o/ having comuitced, and which he sought to concea\, was av clearly identified as to exclude the iden of any otner wrong, But if toere we! series of wrougs other than that Row © to some one or more of which he might Court concealment, the applica tion Of the principle requires serious attention. If & person to Whom several crimes are ge Mg that Kullty of One offence, and, ole of Seeks [0 escape and avoid Treat it would be @ perversion if tne inierence or Suspicion which would attach were used to eke cumstantial evidence, to convict lig: of her crimes imputed. You mush’ meretricious lover, who, on ¥! iting his mistress, is caught at night hiding und ber Fy) Would not, vecuuse offenders are ght thus conceaied, convict him of burg: a oiten lary, With intent to steal. indicate the care with which tue real question beioré Us should be considered, They are the more proper because, in any View of the case, ou may be disposed to ask Way Mr. Beecher, if Qnoceent, should wave garnered up io Dis weart all that pam and fearro jong When be might have madé prociamatioa to te world and trampicd out 4nd4i a# With iron boots. Bat, gent and coastens distingui nh preval forme of pudlic inqniry ana deoat standing allt aig you have bi you should not adopt Conclusions as readily, When you ai Ou repent sad take up th it we negiigentiy commit an error here we may repent, but the Wrong remains ivreparaoie, WAS HE CHARGED WITH ADULTRUY The quesiiou Gpon ali the prools is whetner the deiendunt understood that he Was charged with the adultery and spoxe, wrote, acted aud suffered from and If consequén-e of tbat, or whether, lay- ing (hat out of view, he andersiood the charges to be (bat he had mace the improper propo or i bese suggestions may | character of his imtervention, and the deiendant, in bis letters and oiberwise, has borne large and geperous testimony ‘to that emect. Moulton on various occasions, tesiifes, and as other ed that the defen xual intercourse Which he bow Yet Mr. he himseir how Jar the inconsistency in his statements g to diseredit him. If you shall ve of he iuteuded to state the tratu fi here, and that bis previous dec! spired by @ epirit of loyalty to the defendant’sre- pUcation, and to tha: of Mrs. Tilton, and from an earnest Wisu to divert the minds of o:hers irom the suoject, in carrying out the pelicy of sup- pression adopted, you are at liberty to make Bucu allowance for that as shail seem proper. TILTON’S PECULIAR STATEMENTS. As to Mr. Tilton, you will consiger wuetuer his testimony to the Confession of the deenuant’s gulit can be recoucied with bis previt deciar: Uons thal Wile Was ippocent. the peculiar theory which he bas explained to you bas bee: sum ly illustrated by counsel, and may be ac- cepted a3 jar as you think proper, Ir his purpose Was to protect the fame of is wife aud not to injur unduly or maliciously anotaer—is im the fwui con- ficts and emotions Which may have possessed him—you disco a moral purpos with a depraved spirit, you Will give him tue ven- eit of tase view. ‘The general rule as to persons who have wil- fully testified, wader Oath, to waat ts false, on any material point, 18 that their testimony is dis- ereaited, You are not bound todisregardit ali, The witness, to be entirely discredited, must bave given the false testimony witn reference to @ fact as to which he could not be presumed liable to mistake, and given it with knowledge thatit was faise, You are to apply the rule cautiousiy and discreetly, The maxim, wilfully fsise in one Jaise in all, 18 Sound, subjecs to the caution 8 + aad to your right to deciue huw mucu credit you Will give the witnes: 13 MRS. MOULTON DISCREDITED ? ‘The testimony Of Emma CU. Mouton is sought to be discredited on quite diferent ground, It is claimed (bat there is an iuherent improvavility in the supposition thata lady of her coufessed re- finement and delicacy would have conversed #0 freely wich the defendant as to his aduitery, or undertaken to advise him on that subject It said tuat on tne occasion when wo ve had an important in- with the deiendant he was not ber house. You will eonsider and apply the t at proof Which stands in confict and in corrobora: tou. Im the diseu cited avd iiustracea s ions that proo! has been re- freely that | nave but to commend it to your careiui consideration. Did she, at or about the time stated, Dave that in view, and wus the conversation sub: tially given by her? If 80, and she were in error as the length of the inrerview, that mere inetd Would not be conciusive. 4 question, gentie- meu, rests with you. , Two otner ooservations may be proper. Had Moulton got the impression that the defemd- ant’s guilt was aduitery and in ser conversation r jel that as the subject in bis mind as it Was her mind? Do you believe that, whetuer mis- taken or not, she testi jonestiy? Hi oD the stand «nd the opinion whico the mseli bad of her moral caaracter and ted in bis Jetters, comme: SHE 18 SUSTAINING HER HU I bad occasion to state in your bearing m: of the suggestion that this witness testi atthe will or on the instruction of the husband, IJ still hold tothe opinion then expressed. There is no proof o/ artifice, or coercion, or undue infuence. Tae fact, however, that her husband is deeply concerned in this controversy aud that ber te mony, Without repeating, concurs with his, 16 to ve considered on the mere question of bias, In sustaining te piaintid’s cause she is sustaining her jusband a8 4 witness. KATE CAURY'S IMPEACHMENT. to the witness Kate Varey, is prevails ia traced to special di OBNERAL TRACY EXONSHATE! As to another witness suggestions have been made—i‘ne first, t a ing acted as counsel jor (he deendant he should Hot bave been calles asa Witness Jor nim im the case; toe second, that owing to 8 arraugement ‘with Or promise to the plaintifi he should not have acted as such counsel. It appears from the teslimony that vefore accepied tie revation of counsel for the defend- t conanited the other cistinguisued gentie- on retained and pa’ ed Tow, and inocu trial fe suomitl question to ols counsel, and acted on their advice in coming to Ward to testiuy. Th both a thug s.rongly contr: jomal men, acting upon t enter soto improper relations. The principie Which restrains counsé) irom acting In & litigation inet by Whow é had been Consuited, ana from bemg & onges whe ir own notions, or attol itis for you to cousider | witness for his client on the trial of @ cause Is sal- utary and should be respected. But in cases where the practice of acting in tl douvle capacity of counsel and witness on tne trial Of @ Cause has been most strougly reprooated, | | an exception io the rule has been recog- nized, Had such an exception arisen in this instance = =The conversution which | took pixce between himself and others | in an imterview at Mr. Moulton’s house, having | been recetvea in evidence, that fact mas weil have | iimposed upon him the duty of becoming a witness, | If that was bis view, and Was the opinion of his | associates, to waom he deterred, you Will not pe duly perceive any substantial ground of criti- | cism. The other suggestion, as to his not being at lib- erty to uct as counsel for the defendant, assumes that he had been 10 prolessional relations to the piaiwtif, or 1m their confidential intercourse had | learued bis secrets or Obtained Information which wave an advantage to the party afterward repre- | | semted by him. | NO RELATION OF ATTORNEY AND CLIENT. | No sea relation existed; Mr, Tracy had not been the attoruey or counsel or adviser of this blaintitt, At tae interview at Mr. Moulton’s house the paper, dated January 1, 1571, Was shown vo aud | eXamiped by Mr. Tracy. Aiter that Mr, Tilton was called in, and, veiore proceeding farther, asked Mr. ‘Tracy wilether if uificulty suould arise | between him and Mr, Beecuer he would act for the jatter, and Mr, ‘tracy said tukt ke would not, Mr. Titon then made explanations. Did he com- municate to Mr, ‘tracy and the other persons | present any matter nov previously known and | that would enable him to serve Mr, Beecher better tuan he could otherwise have done ? Jn testifying to conversations with the defend. | ant, @nd thus what tarvugh him Mr. Tracy bad | Known, Mr. Moulton stated to Mr, Beecher that he bad told Mr. Tracy “the truth of the matter. told him the fact of the case agit was.” ‘*Tueo- dore Tiitou bad denounced me for so doing, and | | had said tome that! had no business to reveal the guilt of Elizabeth to Mr, Tracy without his consent.” You will therefore observe that, before the promise made by Mr. Tracy, be had become pos- sessed of the case, and taat Mr. Tilton censured Mr. Moulton for making the communication. What confidential communication could Mr, Til- ton kave made beyoud the information which Mr. | Moulton hud already given’ You may also cone | Sider, Low that the whole case 1s before you, whether any tact or secret that Mr. Tilton would bave wituheld was transierred over as a benefit to Mr. Beecher, Moreover, at that interview, as Mr. Tracy under- Stood the conversation, Mr. Tilten’s com) laint Was 10 @ matter Which could not become tue sub- Ject of litigation, that is, the mnproper advances. I have only to add that my own View of the pr priety of tne course pursued by Mr. Tracy agrees ‘with that of his associate counsel in the cause, 1 tuk, With them, taat there has beea no violation of duty on bis part, persoual or protessional. THE QURSTION OF DAMAGES. ‘The third branch of tne general division of evi. denee relates to damages, 1 call your utteution to it simply that you may Te ae of the evidence peculiar to that suv. ec ‘The gist of the action being the loss of the so- ciety, Comfort and as-istance Of his wie, evidence as to their condition, 0! love and harmony, or the contrary, becomes material. The letters of the | | wife, written Leiore the alleged offence, have been | read. 1 mention this that you may understand | Why the voluminous correspondence between plaintuf and his wife was received. A acfendant could put injevidence the letters of the piaintiff, as he could any Other declarations of his toucaing @ matter in dispute, But neither party couid ue the letters of the Wife, except a) tu the damages, You perceive that the rule is jounded in good | sense. Tbe action is not to punish the devendant, but to imdemnuly the plaiowif. Ii the wite, lovin; und worthy, be misied, the home, in comtort ani harmony, be mvaded, the loss of the plaintil is greater than under less favorable conditions. 0, foo, to reduce the amount of recovery, the defendamt may show that the plaimuit was unfaithful to hik marriage vows, the theory | being that a busband consorting with lewd wom- en sufers irom the invasion uf his Own house- hold less than he would have suffered if pure in heart and ile. TILTON’S CHARACTER. But the impure association of the plaintim with other women ig no d@lence to the action. It was heid, as early as 1801, by Lord Keuyon, that suc conduct went to the husband's rigut of action; but, in 1803, Lord Alvauley ruled otherwise, and is view has since prevailed. But, without pursuing the subject, you will per- ceive that we have here a large amount of evi- dence, ineluding plaints alleged misco! duct, at home and abroad, peculiar to this mere question of damages, Some other features of the case remain to be noticed. “EXTREME IMPROBABILJTY.” Upon principie and authority, and also wito ref- erence to our accepted rules 01 social order, the in- Umacy and intercourse which are allowed between @ married Woman and her legal adviser, puysician | Or pi yr, are greaier than those whica would be cousidered proper or becoming between the wo- Mau and aman holding no such special reiation. ‘That principle applies here, and the defendant 13 entitied to the benefit of it, Lord Brougham, in considering case where a clergyman coucerned, dq im repelling tion of t of chastity, term “extreme improbability.” jurist was given to strong expressions, and the term thus id Was eXtravagant. What can be claimed is @ mere presumption of innocence. in this connection lied a at to observe that after many years spent in religious teacting and intel- lectual service, the defendant comes into court with @ character Which, until proof given against him, offers a shicia of protection. We are wont and in of this 0 say that ali suitors are treated alike, charact MONEY CONTRIBUTIONS. Mr. advau ft through Mr. Moulton, w Tilton and family, appear to have been mere acts | Of generosity, ‘That money was not extorted by | Mr. Moulvon, nor does it appear to have been the | Srait of improper artifices. Altnough it is of no | Special moment, I think it proper to say that the | uncontradicted evidence shows that Mr. Tilton did not know that he was thus benefited by Mr, | eee! er, 4 CONSPIRACY AND BLACKMAIL. I sald, carly in my remarks, that, except on points of slight importance, I did not express upinions to jurors upon comtroverted questions of fact. 1 regard the Re god and a to blackmail suggested ag of that character. Those able as such, Dot to ve pred ‘© suspicion, We belore us no | evidence woich could support charges; and | if we had, the defendant's position would rema v if innooent, to be 80 declared tnde- | ces, | ndently of such art fhe nearest approach to blackmall would seem to have arisen between Mr. Tilton Mr. Bowen, it the former did threaten to puvlish a card inju- rious to (he latter uoiess the money were paid. But We have no interest im that question. More- over, he did not pubitsh the card, nor Was he paid | until after due course of investigation, It seems | Uthat the covenant of Mr. Bowen and Mr. Titon | in respect to compensation jor vice ou the two papers provided ior certain payments ona termination of the employment betore ti Ld of the term, and the Claims or disput suould be determined by arbitration. tices Of dismissal put evidel P broposed that mode of a fie did so, and the ar- gentlemen acting as rer and integrity, f.und | toat was paid. No spi Cial purpose could led such men to that de- termination if the money had not, in their judg. ment, been actually due. THE INVESTIGATING COMMITTER. It seems proper to refer to two subjects of con- sideravie importance, which, to some extent, have | been brought into the case. Tue one, tue proceed- u and report of the Investigating Committ poiuted by Mr. Beecher, after tue defeadan ter to Dr. Bacon had been publisned. That wi | Tight to stand op th bitration was bad, Ti bitrators, men of ch: that $7,000 was da ie proper, was in favor 6 imply to remind you t that aid Bot have any Weight or influence with you | THE CONGREGATIONAL COUNCIL. 0 subject he advisory convention held at the instance of two of our prineipal cnurches, The question presented bere 4 no relation to the subject there involved. The West | | charges, whica are in evidence oefore you, not | berg been prosecuted Ly the Plymouth churen, and Mr, Tiiton’s name having been dropped } & member without censure, notwith- anding the charge of slandertag ‘the pastor | d nm made by Mr. West, the advisory i had cognizance cf that as « question of discipline and church polity. You will aliy | that proceeding did not ai or oh Mr. Beecher, You are not to ac- two powerful churen t suffer irom any miseonception aw ‘ound Of Which that council Was convened. iT RESTS WITH YOU.’ Jemen, the caxe is DOW submitted to you. It ts of a nature to call for the exere.se of your Dighest intelligence and mort scrapalous care, | You will retire to your deliberations with an im: | | partial a4 Gurnest purpose to be juat to the wit- | Meases, just to the parties; and to render a verdict | which you may taiuk of hereatrer with sati Uo, a# a duly honestly performed in the presence | of God and of men, THE REQUESTS TO CHARGE, You will give me your patience & lew moments, jentiomen. In reapect to thexe requests which 1, Abbott handed up last ig and which read in your hearing. | Wil make some gestions in regard to them, Mr, Spauiding court oficer), step down to Parker's and were sug (the it they will send dinner ap to the jurors, or what eau be done about it. otiemen, tae third of vu requests isi— She detendan: is mot required to provo his insooenees, He is to br med ianooent Whit his guilt is amMrma- tively established by a ciear preponderance of evidence. That #80, My charge indicates that, The jury must find for the defendant unless convineed, by thie prooty of actual adultery, beyond all reasounbié jou I decline to modtiy my charge in that respect. tually to the Bate t or by Circumstantial or presumptive @ dence, iu Order to see Where the proof really 1) | any other way'that will | minds and the consciences of tae jury. | nothing that Mrs. Morse or those otuer persons | wod character to the conduct of | ti deal With intellectual qu covers whatever direction mignt be necessary as a rule of evidence, In a civil case, this being an action for damages, a civi! action and this propo- Sltion Of the charge neing proved beyond 4s reason- abie doubt, ts peculiar to a crimimal case, and, our books show, it does not apply here, 1don’t | jee) it to be of any real moment. | VI. The verdict must be tor the defendant, unless the | result ot the whole evidence on both sides be such as to | produce in the deliberate conclusion of the jury 4 legal | certainty of guilt. sen @reasonabdle certainty means a legal cer- Ye VIL The charge of adultery is oue that net merely tn- volves a pecuniary vlan agaitst the defendant, but crimimates the plaints wife and teuds to diserace her children and threatens the marriage relation itselt; and itit proper for the jury to consider these ordinary and natural consequences of a convieton, in scrutulz- ing the evidence and exacting adequate prot to estab- lish an wecusation involving such grave, permanent and Temediless consequences to others. Very early in the case I threw out some sugges- tons to you then about this being a question be- tween plaintiff’ aud defendant, not baving regard 10 mrs, Tilton a8 upon trial, although in a certain sense, of course, yOu know thut the effect of the determination does lap over and reflect upon her; but still ib 1s too remote for us to judge by. The Cag od of adultery is one not only of pecuni- ary claim, but of grave’ and moral considerations affecting him. That 18 all I feel mysell called upon to say in regard to this request, ViIL If, on weighing the evidence on both sides, there reuiaing in the mind of the jury doubt or per: blexity as to the actual adultery they must find for the defendant Well, If that means, after consideriag and hear- ing al! the testimony, you are as prudent men | convinced in heart and “mind that tie adultery Was committed you should find for the plaintut, IX. the higher the crime or the graver the wrong sought to be established the more stringently the rule: of evidence should be enforced, and a charge of criminal conversation Js not to be fixed upon @ person but by the Rignest evidence. A That is correct, gentlemen, We are not dealing with evidenc if action on & promissory note, or ifit were an action for slan- der, or of one gentieman calling another # liar. X. If there were any evidence in the case pointing to adultery at any specific time nnd piace the defendant might liave some meai other wit- 8 but upon the evidence adduced by the plaintiff the defendant is the only witness who bas any actual knowledge of what the reletions between himself and Mrs. ‘Tilton were, and 18 the only person whom the law permits to speak a Wiloess a3 w tose relutions, Doubtless that ts so. XI. Circumstantial evidence, to establish guilt, must be such as to exclude to moral certainty every I pothesis but that of guilt; in other words, the’ facts proved must uot only ail be consistent with and point to ult, but tuey must be inconsistent with innocence. That is 80, gentlemen, of course, XLIL The law does uot dispense with the direct proof of the sexual act and accept circumstantial evidence of inumacy in lieu thereof, unless there 1s actual proof of conduct of the paries deviating from open and honor- able adherence to the proprieties of chaste society, and showing a lustful disposition and purpose on their part, and the opportunity by their resorc to seclusion and security, No evidence of mere intimacy of course would Tot be substituted in place of actual evidence. [ don’t see there 18 any Substanual value in that part ol the request commencing ‘‘uniess there is tual prool,” vecause I madicated in the general charge an offence of this character 13 not prove- able by direct pvidence, and may be proved in be #atisiactory to the ye XIV, The circumstances mast be such as would lead the gdarded discretion of a reasonable and just man to the conclusion of actual guilt. For itis not to lead a harsh and intemperate Judgment moving upon appear- ances that are equally capanie of two interpretations: neither iy it to be a matter of artificial reasoning, ju ang upon such things differently trom what would strike te careful and cautious consideration of a discreet m Tadd, ‘a reasonable and prudent man.’ Well, “to the conclusion of guilt,” because guilt 1s ac- tuul gullt, and when you have a question of guilt or fact of guilt, it 19 not well to load it down with adjectives or expletives. It ts a question o: guilt or 4 question Of innocence Which you are to de- vermine. It 18 uot to be a matter of artificial reasoning, and 1s not to lead to w harsh or tntem- perate judgment. I have tried to illustrate that, and it does not require me to say anytiing in ad- ditlon to what I have said in th mage ios charge. ‘This proposition is very clearly worded, but somenow there 1s a special property in it whico L do not approve. ‘The mere proof of au opportu- nity to comune aduitery 18 no proof whatever of guilt, but you don’t need to be told that, for there Must be evidence of otver circumstances coupled Wito it at the same time. XVILL When, in addition tothe oven relation of inti- mate triendship, there 1 superadded the pastoral rela- tion, no intendinent against the chastity or propricty of that intercourse» can be drawn, except upon proof of actual lusttul deviations from the intercourse of society appropriate to sucir relations. i explained to you the theory of that, XiX. Where a party bas destroyed a paper material to tus case and the contents of the paper are disputed, toe Ppp yee arises that, ir it had been produced, it would bave been agaiast his interest. or in some essen- tal partioglar Vorable to his representation ot its contents. ES EE I LA said enough to you about the per proposals and the quesvea dant was conscious of vcimg thos charged, ther that led to his emotion, sorrow, trouble and tending to lead him to the @X« ressions, Verbal or written, Which you may ind je made, As matter of law, the paper of January 1, 1871, called the apolugy or letter of vamtrition tlexiibit No. 3), does not on its face import any act of adultery or sexual in~ dclicacy, and is no proof of either, Thatis so. It is proper only to uscertain what it does refer to im connection with the circum~ tances, None of the defendant’s letters and writings put in evi: dence, upon their face a8 matter of law, import adultery or sexual indelicacy, or Surmsh any pivot of either, DY themselves. The ivet of either wust be supplied by other legitimate proof, before the law allows the inter= ence that such fact prompted the expressions of the yetters and writings. Tt think 1 question of imp: whether the det 8 & question of fact. Those letters, like the paper catied the letter of contrition, do not specily tha act or Wrong, real or supposed, the parties had in view, it makes but a matter of act to you, None of the defendant's letters or writings put in gyidence asvertaln or declare the tact of ‘adultery, ‘They ouly declars and express the emotions of the de- teudant, of cemmiseration and selt-reproach at the broken jortunes ot the pluntiit and domestic unbapple hess of his family, as presented to the detendants appreciation aud detailed by himself. Certainly not, Fey ony, declare or express the emotions of the defendant of commiseration and self-reproaca at the broken fortunes of oe pe ud, and the domestic unhappiness of his family as detailed by nimseif. They only declare or ex- press the emotions of the defendant, and it is for you to Say what those emotions meant, and by What they were excited or extorted, XLV.—-if the jury find that the pisinhts wife left Dim in December, 1670, on account of his treatment at couduct and with a view to separating trom him, and: that the defendant in December, 1870, gave, informution of the factsto his wife and to an otiicer of his church, ana to the plaintit’s employer, and advised @ separa- tion of the wife from her husband, these facts must considered by the jury as corroborating jetendants testimony and discrediting thatof the plainti on the main issue. 1 bave sald to you in effect that those facts must be considered by you imtuterpreting, and as you may interpret, in corroborating or disproving the delendant’s declarations, or illustrating or inters pretiug what he may have said, ‘That is ail FE tulnk that Lought to say, ltis@ matter lor you to consider, XLVI.—The fact that the plaintiff continued to cohabit with his wite, after her alleged communication to hig of the charge, and up to July, 174, is cogent evidence against the truth of the preset charge. ition, and in actions of divorce on account adultery where the wife is a plaintiff or detendant in questions between the husbaid und wife, that proposition 18 covered ; itis a sound rule, The fact that @ plainui’ who ts aiterward the plaintiff in an action seeking a divorce continued to conavis with bis wife alter or long after her guilt had been communicated to tim, isa proper matter, pecullar to such an action, because in that action the husband may be charged with having com doned his wife’s offence, and bec:use, also, the man who finally comes into court seeking & divore¢ is the same man Whose coaducs, aiter living with his wile ulter his Knowledge of her guilt, involved an incongruity, Tue same spirit that leads him to prove nis aetion for a divorce, would lead him toa separation from bis wie as soon as ne learned her guilt, But in this action tt doca not apply; 1 do nos think itis ofany moment what ever. XLVIL. The silence ot the plaintiff toward the dow fendant, for nearly six months alter he says he was in possession of the’ fact that aduitery had been commit fed. cogent evidence against the truth of the present charge. Upon the mere face of this proposition that would be so, And it is sO here, unless you také into consideration, as you should, tae question Whether, upon the coniession of that by his wife, if sne did coniess, or taking into view the con+ duct of the piaintit, on the assumption that ne had the confession, did the wife influence bim ta silence ana peace, and did he yield to that Infla- ence, and does that account for the circumstance that pot until so long after the supposed aod al. leged coufessiou, did ne make any distinctive avowal of bis grief? Thats tor you to consider, and I think that you ought to look" at it in taal light, either to accept or reject the suguestioa. XLVIIL—The testimony of the plaintiff that be first disclosed any charge against the deieudant to lus gwo employer, im connection with business arrangemchts, aud united with him in an effort te drive deteadant trou Brookiyn, and that he made no disclosure of the cuarge to the defendant until tis effort failed are coent evi dence against the truth of the present charge. x fhe facts that after making the charge, an Jearning that it was retracted by his wife, the pluinti became reconciled with the defendant and restored the social reiations ot himself and wite with him, are cogeat evidence against the trata of the present charge. L. The four years’ delay of the plaintiff in making any open cuarge of adultery against the detendant, and we bringing of such open charge only in consequence of irritations and reseutments proceeding trom othe: causes, are cogent evidence against the truthiulaess Kood faith of the preseut charge. Aseach of those propositions, gentiemen, are questions of fact lor you to cousider, and, accord- ing us you may interpret the acts and conduct of XX1. In considering whether the testimony ot the alieged verbal admussions is corroborated, the jury must look ut the whole course of the plaints? uad his wit- nesses, in their intercourse with the detendant since the cugrge was frst mase and consider whether it is possi- Dielor provable tat this conduct aul social intercourse could have taken place if the defendant was charged or believed by them be an adulterer. That in #0. were in evidence jor 80 much oF so litte, and it is 4 question ior you to deci Theu you seo how sensible that is, for 1f you have @ contro- versy with respect to dealings with your neigh- bor anditis certaim there would be litigation, and you have the only copy Of @ contract alter- ward introduced imto evidence and its terms there, and the law is very jealous a8 about the party who bears it. Here 18 a paper which Mrs, ‘ton put in and was desirous of reciaiming. She writes to Mr. Beecuer to use his ivfueace with “Gear Frank” (0 wave that paper destroyed, and writes aiso to Mr, Moulton. Her tmportunity was Tespected, and that paper was destroyed. If you Should think that was done when there was no jaw sult in prospect you could apply the proojslkave just read. That as what pe @ little pias ter of evidence, Weight and such construction in connection with bis conduct as you think ft aud proper. It is mot @ fair wubject tor & legal proposition to be statea me, Letters written to any person other than thedetendant are not any evidence Whatever against him except for the fact that their contents were brought to his nouce. ‘That is correct so far agit goes. I did say that not sta uch might wriie would ve evidence against tue de- | feudant, and cid say so in reierence to the letters | ot Elizabeth Turner which were put in evidence, Bus u ‘euson why any lecter like Mrs. Morse’ tor example, and like the ‘ed by Mr. Bowen is received in evidence isto give point | he defendant, OW in what spirit and with What conscious- is guilty may thos i03e & Seuse oj bis gulit when ‘nds bimseli suddealy confronted with a verval accusation or with @ communication whicu ex- tracts Irom him some expression of manner and Speech. That observation was made by the learned counsel at the time sully when Mrs. Morse’s letter Was received inevidence. I think Mr. Evarts assented to that or stated that proposition, XXAXV.—The letters and oral sustements that have beeu addu-ed, as in sidered in their Jong, period, of » w together covering a jury are to consider ther it Is efedibi lefendant could have made such oral statsinents of guilt as are attributed to him aud demed by itn, ana whether 4 is credible that such letters ceuld have been written by him with ref. erence to gulit of adu: ‘That corresponds, I think, with the instructions Ihave given you, and are covered by the charge. | XXXVi.—Tbe expressions of compunction and remorse iu the defendant's writings and alleged conversaions bel to the Ciass of merely moral ev or neitl port, nor capable of sup} | ony al Certainty as to th imputed culpability Lhave dealt with taatsubdject. Moral evidence O! great Value, especially when you ict, nature or With @ man’s consclousue deuly charged, accused or coufroated with some- Using whiew brings up velo which he has been guilty of, emotions aad sensibilities excite makes a revelation, and thus you real evidence Wiich otherwise would not be als. | covered, They belong undouotediy to the Class — of moral evidence, aud the question is whetner | they tend to support or are capable of supporting | any legal certainty as to tue facts, nature and de- gree of imputed cuipaoiity. cussed in the Cuarg ist correctiy. XXXVIL.—Testimony of witnesses tha eraation aduitied bis gal, s Ad Most dengerous evid by law.~ ihave stated toy the preposition 84 to ad. | are aud scrutiny that that kind of evidence should rece aud { think i have stated | It suMiciently ‘or that puryone, | XXXVILL—The testimony of witnesses Conumitted adultery, bes $ 4 party charged, uitery, Is the that is received ot LY his sworn root of his walle, | all, Mr, Moulton’, md | stan (aveu Mf full dak Su gonversadlon adits | the party, the evidence will be more or leas strong, ft being, 1p a large degree, circumstantial or presumptive, it talis withio your province ene tirely. 1am indisposed to speak of the evidence of what you may draw or Dot draw as being cogent. “You will consider and satiaty yourseiv: as to the motives which led the plaintiff to frat disclose the tact to Mr, Bowen, if he did do so— led him to remain in association with his wife— led him to renew the friendly intercourse with the deiendant, and led him to whatever characters ized lis conduct and course in any degree. Li. Where, oa « material question of fact, the piaintif swears oue way and the efendant directly stemeat 0 anu the defendant puts in evidence 4 written statement made by the plaintiff before the action was commen (ho matter whether it was beiore the action was com oF not). Hat tradi ‘his testimon: Tee yeey crc ostid to cousider his tesuusouy on tue point as conclusively discredited. Well, that is true as properly applied. If & bring dn action against B on @ claim r is parole, a claim for work and labor or money len and now being allowed to be @ witness testitl on the trial to the fact thas the defendant w: indebied and denies that ne has been paid, an the deiendant produces 4 letter written oy him Stating tmat the claim had been settled and paid, that would be coaciusive of course in connection with delendant’s denial. That isthe application of that proposition. I have explained to you already how you should consider the previous inconsistent deciarations you may find to have been made by plaintig, whether before the acti Was commenced or afverward, characterizing ¢ offence, 1t 1s for you to interpret and apply it. thimk 10 18 & matter Of inct for you. LIL The unequivocal admissions of seifand of Mr. Mouiton, that they lainti® him. iiberatly aud to the contrary now give! id requires its rej the jary as wholiy wuteustworthy. lexplained to you, gentlemen, the theory of duty toat I supposed you would respect iu that re- gard. [admonish you to consider how tar, if at previous contradictory state: ments could be ascribed, and an honorable pur- pose to suppress the scandal and protect the de jendant and protect Elizabeth, and the same sug. gestion applies to Mr. Tilton. You are at liberty to consider the motive and should consider tne motive which led them to do one thing or tue other, and Whether they did 80 honestly or dis- honestly, and then determine the effect either in rue or less degree or no degree. LIL. It the jury believe that the pleintiff or wicness of his has wiltully sworn falsely on @ material = they should disregard the whole testimony of such witness. 1 have stated the rule on that subject. That ts the general rule, but is not imperative where any | part of the testimony thus affected is corroborated, LIV, When a witness testifies toa conversation of the defendant at which no other person Was present there are no means of direct contradiction except by the oath f the jury find & train of circum inconsistent with the ‘alleged conversation and the conversaticn Is tully denied by the detendant they May reject (he testimoay to such alleged conversation. Certainly you mqy, because the whole matter be} 8 tO You, and sone of tue circumstunces ould on your part procure patient atten Geutiewen, are you content aulding and Clare, Judge Neilson- Step forward, if you pl Jaryman Davis—Your Honor, may we bi original documents aod papers to take with ua (¢ tue Jury room ? Judge Nedsoa—fhat is & matter for the counsel to consider. It is not usual jor the jury to taxe | out auy papers, and the question rests entirely with the counsel, @ have no objection on our side, sir. Mr. Evarte—It is @ question in this case, sir, without reference to its nature, to determi! Wat are ald What are not papers in evidence tnis case. Some papers are not in existence ond in evidence, o—There is an embatrassme: ge mea. ithink Uf any specific qa tion Wii arise about any paper, aud you se ID(OriHAioD, 16 Wil be given as far ae ‘We aro abio to do. Mr. Beach—Toas might produce some incon- venience, Your Houor, in the absence of parties eid counsel, Judge Nevison—| should not do it in the absence it. ‘Phat is & qu jah you to be prudent in respect to i ao | conceive it to be & proposition of law but Of fact. Well, 1 bave explained that, J think. I have juily admonisned you to a @ motives wo aod th ee. 4g col i led to the suppression, 7 prehending anuoyance or disturoaac Innocent of aot, might well Wisa to avol puolicicy. In consi ering the testim a i mast look at the whole course of conduct of the if and hie wit iF inte with the deiendant since the whether it is posicle social intercourse janc bad comiuitted | Its a question of fact, Take it into considera. tion. Tho plaintit’s offence of dant was the making of improper ropes, and that deiendant Lye) tae obeere, aliet gi te a0 ‘or tesumony of & didlerent 0 over’ brows by direct it eanpot th written statement, that the imputed | of the counsel, | never answer any questions sent down by juries unt submitted, | Mr. Beaca—i do not think ti | Pers handed them whica are | (laughter) —bar Lunders: to them to mi will ve no | wtanoe, alr, in | 1b 18 called, wh | sudject, | Mr #—They can take them all. Dierk (to Olivers W. Doyle, T. Spanidn , Ulare)You and each of you solemul swear that you Wili well and traly guard every persoa sworn on this jury in some private ani convenient place, without meat or drink, water excepted. You sail pot suffer any person speak to them, nor 4; to wl ourselves, without leave of tue ( except it be to sag them whethor they @ ear Oo their verdics, gue ey have agreed Oo their verdiot, #0 help you od. ‘The oMvers having been sworn ia the jury re tied suurty aiter one v'clock, “in 1 have put that to you, gentlemen, in the charge \ Several cases are cited In support of that propos - 7 LS a a ee Me SN Sa ee Tr |