menu_book Chapter 25

Section 25 of American State Trials, Volume 1. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. American State Trials, Volume 1, by John D. Lawson. Trial of Judge Wilkinson, Dr. Wilkinson, and John Murdow

for the murder of John Rothwell and Alexander H. Meeks, Kentucky, 1839, Part 10. As the accusation is more gravely urged against Judge Wilkinson than the other defendants, I will now advert to his conduct. Suits to obtain personal satisfaction for assaults and batteries they never committed are pending against the doctor and Murdow for the affair at the shop.

An indictment is also pending against them for that violation of the public peace. This attempt to immerse the doctor and hold him pecuniarily responsible for an injury he never committed is like to those indictments against him for the murder of men he never before in his dream had thought of, much less of violence towards them. This persecution is perhaps on the ground that he was the judge's brother.

Murdow, too, shares in all this legal persecution. First, because he is in bad company, and secondly, because, say, defendendo, he slew a man so vile that the prosecution would discredit and render infamous the only man, Oliver, who seems disposed to recognize him as an acquaintance. The violation of the public peace at the shop is an injury that another jury will pass upon

and, by their verdict, avenge the insulted majesty of the law. Another jury will meet out to the prosecutor's satisfaction for the injury received on that occasion. You are now, gentlemen, called on in the name and on behalf of the Commonwealth to convict Judge Wilkinson of the murder of John Rothwell, a worthier and less offending man in the affair than Meeks, as it is insisted. And because, however excusable the other

defendents may be, the judge at least, as the Commonwealth's attorney contends, did not act in necessary self-defense. In addition to the authorities already alluded to, relative to the doctrine of self-defense, the following positions upon the law of homicide are, I believe, sustained by reason and deducible from the text and reasonings of standard authors. When a retreat would not diminish but increase the danger of a person under the imperious

necessity of exercising his right of self-defense, he may, without retreating, oppose force to force and even pursue his adversary unto death if his own preservation require it. And such killing is justifiable. See Foster C.L. page 273, 1 Criminal Law page 80. The right of self-defense is not confined to the party endangered. It is not only an individual but a social right. It embraces the principal civil and natural relations. Husband and wife, parent and child, master and child,

not only may but in duty are bound to protect one another, and holds good between citizen and citizen in the spirit of the law according to the reciprocal duties they owe one another. A servant or any other person, when a felony is attempted, may interpose and justifiably slay the aggressor. A person in possession of a tavern room, although no injury be intended him, may, against burglars or incendiaries, oppose such force as may be requisite to prevent the felony.

To protect against murder, robbery, or enormous bodily harm, servants of the party attacked, or inmates of the house about to be robbed, may justifiably take the life of the assailant or robber. See Archbold page 121, Foster pages 273 to 4. I quote almost literally from the best law writers, these cases are but examples to illustrate rules. The law is more palpably embodied and distinctly presented to the understanding when exemplified by a case than when presented as an

abstract rule of action without reference to circumstances. Homicide is justifiable or excusable when committed upon compulsion and ex necessitate, because the party does it not from choice as a free agent, but his action on the matter is constrained, his volition controlled by external circumstances. The concurrence of his will to the deed is absent. When there is no freedom of action, no voluntary assent of the mind, there is no moral and should be no legal accountability.

When it is practicable with safety, the law to eschew the shedding of blood requires the party should retreat in cases of mutual conflict, but this requirement is only when he may be stationary or advance with as much propriety as it is consistent with his safety, and if his safety requires it, recede. How flight would have affected the judge's personal security is now a matter of pure speculation. If, for his own personal safety, he was constrained to act as he did,

or if in the exercise of a social, not a selfish, privilege and duty, he succored his brother, Anne Murdaugh, to preserve their lives or protect them from great bodily harm, he, in law, is excusable. Society and mutual companionship justify such interference, as is happily illustrated by the case of the three men walking in a field, and one is assailed, the others may interpose to prevent a felony being committed, and may interpose to any extent to make their interposition effective,

as you've already learned from the case so aptly quoted by Colonel Robertson. The reason of the law is this. The life of a citizen is, in its contemplation, dear, his person sacred. Against assaults, injury, or destruction, he may defend them to the last extremity. If the exigency of the occasion demands it, that right is not altogether personal to him, but it is a social right, and it is not only the right of any person to interfere to prevent the perpetration of a felony,

but such interference to intercept the commission of a crime is enjoined as a positive duty. The natural relationship between the judge and his brother, the mutual ties of friendship between him and Murdow, his duty as a citizen, justified him in interfering in the conflict to defend them. By the spirit of the law for the purpose of defense, he is identified with them. Their necessity and justification is his. Their right of self-defense is transferred to him,

or is rather common to all. If the judge has not malignantly transcended the degree of violent interposition necessary to save his brother and friend's life, he has but fulfilled his duty as a citizen. I do not desire to be understood that officious meddling in broils is countenanced by law, nor do I mean to assume the position that where combatants are struggling in an affray to prevent mischief or keep the peace, extreme violence is proper. No such licentious

latitude of action is even permitted to those engaged in the conflict. I limit the right by the wholesome restrictions imposed on willful, wanton killing in other cases. Before I call your attention to the evidence, I will merely advert to another principle of law which is sound and doctrine and applicable to this case. In treating of justifiable homicide in the due advancement of public justice, and in allusion to what killing is justifiable for that purpose,

the opinion is intimated as correct by the author, 1 Hawkins, PC 107. The killing of dangerous rioters by any private person who cannot otherwise suppress them or defend themselves from them is lawful inasmuch as every private person seems to be authorized by the law to arm himself for the purpose of foresaid. This doctrine seems so near akin to lawful killing in the execution of public justice by hanging or in the arrest of felons who cannot

be apprehended alive by those who pursue them that I cannot question its correctness. The law to maintain itself and be respected must tolerate the means to suppress rebellious contempts of its authority and such means should be proportioned to the exigency of the occasion and consistent with the safety of the orderly and law-abiding citizen. Rioters assembled in force like rebels against the government when they condemn the supremacy of the law and spurn its commands

should be regarded as outlaws and traitors. The law surely cannot cherish any such suicidal and disorganizing principles as a favorable regard for those who have forfeited all claims to be within the pale of its protection by their disrespect for its principles and the institutions of their country. Without a labored analysis of the testimony the prominent facts are few and substantially as I shall recall them to your minds. I have but little to say of the scuffle

in the evening at the shop. The occurrence itself is quite impertinent to the matters now in issue as I conceive. The defendants were staying at the Galt House in Louisville. Judge Wilkinson was to be married in a few days at Bardstown in the interior of the state. Whilst in Louisville the wedding day being just at hand it was thought by them that the operatives of one shop could not in time finish the necessary equipments in the way of dress. The judge and Murdaugh applied to Davey,

one of the witnesses, to make their clothes. Dr. Wilkinson engaged Reading to construct for him a coat to wear to his brother's wedding. Dr. Wilkinson, to ensure promptness and satisfy any misgivings Mr. Reading might entertain of him, a stranger, deposited with him a $100 Mississippi note. The money was appreciating. The doctor did not wish to lose the exchange in converting it into Kentucky money just at that time, nor did he desire to incur a possible suspicion on the part of Mr.

Reading that the garments would not be paid for. The judge and Murdaugh obtained their clothes and went to Reading's shop with the doctor, accompanying him as is usual with comrades in strange places. The fit of the doctor's coat did not please him. Alteration was suggested. The doctor was for throwing the coat on Reading's hands as an article he was not bound to receive. Some chaffering took place. The $100 was not surrendered, and that was the whole cause of the difficulty. Reading

retained the money and insisted that the coat was or could be made to fit as such an article of dress ought. The judge, who was in the room, gave his opinion of the coat. It is probable Reading was not apprised that he was a brother of the doctors. He spoke so harshly and insultingly that the judge rose from the stove where he was sitting and struck Reading with the little iron rod used for stirring coal. The judge may have been too hasty, but insulted by being told he was a meddling busybody

or substantially that, as you no doubt recollect the testimony, did no more than almost anyone might be provoked to do. A scuffle ensued in which neither the judge nor Reading nor anyone else was hurt. The parties got from the shop into the street, were separated and departed when? Just as soon as Dr. Wilkinson got his money. Had the money been surrendered, as it should, there would have been no difficulty. But for the occurrences happening since, the affair at the shop would

have passed off, as it was in reality a slight casual fracas not worthy of notice. The attempt to swell it into an important fight is ridiculous, and the expression of my opinion about the $100 is the most aid I can give you in your deliberations upon that mass of immaterial testimony from the shop and about the shop. After the parties separated, the Wilkinsons and Murdow go to their boarding houses ashamed of what had happened, I have no doubt. Or rather, not thinking

of it at all, in the preparations making for their trip to Bardstown. Not so with the other party in the quarrel. Menacing speeches and hostile movements characterize their deportment. In Reading's coffee house adjoining his shop, Meeks, Johnson and his friends are seen. The affair which had taken place is talked of and discoursed, and the proposals and propriety of going to the Galt house to give the Mississippians hell is mentioned. Warns and blank against the defendants were offered Reading.

Those, however, he did not accept to insert the names when ascertained. Reading, however, must go to the Galt house to procure the names. The Pacific, Johnson, Reading's legal advisor, had made the proposal to give them hell. Upon this steak cutter, immortal celebrity has been conferred by the roasting he has received at the hands of the gentleman, Mr. Prentice, who preceded me. Meeks gets his knife ready, is under the persuasion, yes, a sort of religious obligation rests upon his

conscience that he is bound to have a fight that night. He seemed, however, to have loaned his knife and gotten in instead a cow skin. Oldham, who goes around for any chance, is up in blood for a fight on his own hook. At the in-gathering, Rothwell, Reading's brother-in-law, and Holmes congregate with others. The concert of action, the hostile intentions, the conspiracy to inflict grievous injury on the defendants, is so obvious from the testimony and has been so clearly enforced and

happily commented on by others, Colonel Robertson and Mr. Prentice, that I will not fatigue you with its repetition. When the combined forces had convened, according to the plan of concert, allow me, gentlemen of the jury, to ask your marked attention to the manner of conducting the battle. Several hours had elapsed since the skirmish at the shop. The names had been obtained. Reading awaited, it is said, the coming of a peace officer to serve the process. The names, when procured,

like the rejected blank process, did not satisfy him. Staying for the marshal of the city or other peace officer at that place, an hour or more getting a memorandum of their names, are but flimsy afterthoughts to cloak another arrangement. Reading and his friends, picked men of Herculean strength and statue, are accidentally in the bar room about the time the boarders and lodgers at the house assemble to catch the news or be ready for supper. Judge Wilkinson, who I venture had

scarcely thought of the battle of the shop, came into the public room alone. If Reading did not recognize the judge, and if curious about his identity, why did he not address his inquiry to some third person? Why address himself to the man he had fought with only about four hours before? As if ignorant, why insultingly inquire of him, quote, Are you the gentleman that struck me in my shop? end quote. The judge very calmly and readily replied, quote, I am, end quote. This conversation

thus commenced, and the torrent of vile abuse from Reading instantly following, I take it was intended to provoke an assault from Judge Wilkinson. Had he resented by an attack the approprious epithets so lavishly bestowed upon him, Reading and company, as the assaulted party, would have shielded themselves under it, as a legal justification to have inflicted upon him a most grievous battery. This finesse to bring on the fight failed, and Judge Wilkinson returned

to his room. Great forbearance had been exercised by Judge Wilkinson. He claimed to be protected from insult and violence, and requested of the proprietor of the house, Mr. Everett, to furnish him with pistols at his room. No arms were brought to him, and after remaining in his room about a quarter of an hour, he again came down to the bar room. In the diagram shown you to point out the localities of the house, you recollect in descending the stairs just at the

foot, there is a window overlooking the bar room. Time for Reading to depart had intervened since the recent quarrel, and in passing the window by the stairway, if Judge Wilkinson had thought of it and passed into the public room, he would not have discovered Reading there. The witness Rayleigh informs you that when Judge Wilkinson, at Everett's instance, returned to his room, Reading and some of his friends also left the public room and went into the entry or across the passage into the

reading room. The judge came into the room in company with the other defendants, or they were immediately in his rear. Up to this time, no intimation had ever been given to the defendants that Meeks or Rothwell were enemies. Reading was the only one of the conspirators personally known to them. The existence of such conspiracy they were as ignorant of as they were of the individuals who composed it. The judge, it is true, was armed with a bowie knife, but Murdaugh and the doctor were not

equipped for fight. Reading again came into the room. He had been foiled in his effort to bring on a fight by the patient forbearance of the judge. During the interval, the judge was upstairs. It is more probable that Reading left the public room to rearrange his plan of attack than for any other purpose. Whether Judge Wilkinson's knowledge of the topography of the house would have enabled him to sneak to supper by the way back of the bar room designated in the diagram, we do not know.

The premonition he had already received would have induced a prudent man to arm himself. He came into the bar room the usual route to the supper table. His right to wear arms for his defense is as unquestionable as his privilege to come into the room. About the time of Reading's re-entry into the room, Mr. Pearson, just when Murdaugh was attacked and the remarks were made which I will presently attend to, accosted Judge Wilkinson, to whom he had been passingly introduced the

previous summer and told him it would be better to leave the room. This suggestion from Pearson he acceded to and was about leaving when the quarrel and fight arrested his attention and checked his exit from the room. The admonition from Pearson and the testimony from the other witnesses are replete with proof that however secret to the defendants, it was apparent to others they were to be attacked. The remarks made in their absence upstairs, the mysterious presence

of unusual personages about the house, fighters all, but too clearly foretold the impending danger. At the shop Murdaugh had displayed hastiness of temper. He was young. With him a fight might be provoked. He would possibly answer their purpose. The judge had been insulted but declined battle. Just before Murdaugh was angered by a provoking falsehood as to his drawing his knife, etc. at the shop, Reading is heard to say, quote, these are the three men, end quote, or, quote, here are the

three men, end quote. Mark the words. They are of ominous import. To whom were they addressed? The words, quote, the one whom I shall kiss is he, end quote, did not more significantly mark the object of treason than Reading pointed out the defendants. When the conversation commenced, the conspirators at the signal, like Caesar's assassins when the petition for the recall of Metellus from exile was presented to him in the Senate chamber of Rome, gathered around the intended victim. The murmurs

that in whisper had presaged the storm. The growling muttering broke into open violence. The onset is made upon Murdaugh in one part of the room as we have before stated. At the same instant the doctor is stricken down. Proximity to Pearson, an esteemed citizen of Louisville, perhaps saved the judge. About the time Murdaugh stabbed Meeks from the testimony of General Chambers and Montgomery, you cannot but be satisfied that Rothwell with his cane or bludgeon

was also inflicting violence on him. Then reeling and almost bound to the floor by severe blows on the head. The severity of the blows is evident from the scars left and Meeks could not and did not inflict them. At this crisis, the judge did inflict with his boy knife a wound upon Rothwell in the side or back. Murdaugh extricated seems to have gotten from the room and in that part of it where Holmes had the doctor down prostrated and lifeless. Rothwell hard by is again stabbed by the

judge. As soon as disengaged, the defendants retreat to their room upstairs. When Rothwell received the second stab, a futile attempt is made to show and Johnson swears he was performing the office of pacificator. He was one of the conspirators, was present, engaged in the fight, had come to the Galt House for the purpose of abetting the lawless violence and it would be as miraculous if any such instantaneous revulsion of purpose seized him as it is wonderful that no

one present heard the pacific exclamation quote peace for god's sake peace end quote about the time of the second stab except this redoubtable and veritable Billy Johnson. This sketch of fancy is no doubt of a piece with much of the testimony of the conspirators in relation to the matter. Pride of character if any they have tempts them to extenuate their conduct for their own exculpation. Chagrined by defeat, burning for vengeance, they testify with all the feelings

a party could in his own cause. Their account of the occurrence should be discarded because others present were disinterested lookers on whose recollections are not warped by bitter prejudices. The testimony of persons not of the party is every way less exceptional, less suspicious, and more satisfactory. In scanning the testimony of various witnesses to the same occurrences, enlightened reason teaches the propriety of not rejecting what one testifies because another did

not see or hear the same thing. That you did not see or do not know what I have seen or what I know is no reason even to doubt the detail of facts I may make. When within the range of human probability a credible witness attests the existence of a fact, it outweighs the negative testimony of the whole world. What you know to be true is not the less so because others do not know it. Now rejecting altogether the testimony of the conspirators or in charity permitting it to prevail

when not contradicted by the unenlisted lookers on, the brief narration of the matter up to the stabbing of Rothwell is a succinct history of facts. To reconcile apparent clashings or rather to fill up omissions in detail which may seem to occur, apply the rule just suggested and you may well credit and reconcile all that those gentlemen have testified to. What Tribu saw may have escaped the observation of Graham or Rayleigh and so of others. The testimony of one cannot be impugned

because another did not see or may not recollect what he sees. Of the wounds inflicted by the judge and a wound inflicted in the breast by an unknown hand, Rothwell died. By collateral remarks foreign to the cause I am unwilling to detain you. The severity of the conflict is too well attested by the death of two and wounds of others of the assailants. The peril of the conflict to the defendants is too well attested by the still visible marks of violence on their persons.

The brutal and merciless beating inflicted on the doctor, the attempt not only to chastise but to take the life of Murdaugh as manifested by the cuts with a deadly weapon through his hat, the assassin stab the judge received when the combat was being declined by returning to his room, a retreat itself by brave men too clearly proves that enormous bodily harm and impending hazard of life had placed the defendants in the attitude justifiable of self-defense. By the jointer of

the defendants in the indictments they are identified in the proceedings as one individual. If for the purpose of accusation the crime of one is the crime of all, the right of defense should be deemed the right of all to defend. Are good citizens to stand by and let a lawless band of ruffian conspirators slaughter them one by one? Must each run as far as he can and if overtaken fight if he can? The prosecuting attorney Mr. Bullock seems to insist that unnecessarily in

their malice Judge Wilkinson stabbed an unoffending man in the back and thereby caused his death. The nature of the offense is not affected by the part of the body the blow may happen fortuitously to alight upon that the blows were inflicted maliciously or even willingly except so far as constrained ascent of the mind constitutes such willingness cannot be believed. Suppose gentlemen of the jury any three of you were to go to the state of Mississippi and land at Vicksburg

or Natchez. Whilst temporarily at a tavern in one of those places before proceeding to the interior on your business you have a difficulty with citizens of the place and killed two of them. When the news reached your friends here in Kentucky a thousand miles from the scene would they not be willing to swear that necessity and necessity alone induced you to kill strangers you never before saw men too with whom neither from business nor acquaintance you had ever before had intercourse.

Judge Wilkinson with his brother and friend had come to Kentucky on an embassy of love so near the consummation of his nuptials he would not desire the comeliness of his person nor the integrity of his attendance to be soiled by a fight. At such a time distant far distant from his thoughts would be meditations upon bloodshed and murder. As a visitor to our state he was entitled to our hospitality. We do not as the wandering Arabs of the desert seize and prey upon the confiding traveler.

Surely we are too civilized to regard all strangers as enemies and like the paratical barbarians of northern Europe in the dark ages consider as lawful booty all who unfortunately or accidentally are cast upon our shores. To our state as the abode of hospitality Judge Wilkinson had come to contract the tenderest of human relations with one of the daughters of your land. A distinguished citizen of his own state and known throughout the union as a valued and honored

citizen a pacific man at such a time is it consistent with reason to believe that he would but by constraint have involved himself in so disagreeable a difficulty. The language and the deportment of the judge his retiring the motives of action that would influence any man's circumstance as he was evidences how studiously and consistently with self-respect he avoided a conflict. Now permit me to ask you when at last a fight was forced upon the defendants

what should Judge Wilkinson have done? Ought he to have stood calmly by until at leisure they were all lynched or slain in detail? Should he if practicable have run until caught and then have fought? No no as a true man against them lawless rioters he had a right to defend his companion and brother. A mob arrayed in numbers with force were inflicting ignominious and grievous hurt upon his companion and friend men whom he had never wronged unmerciful in their wanton riotousness

of superior brutal force were mangling Murdaugh with bludgeons and instruments of death were savagely playing about his person. The doctor his brother whom he loved with a brother's heart was overpowered Don Trotin they were crushing the life from his body as he lay prostrate on the floor. Ought the judge to have refrained from interfering? Who could refrain? Does reason or law require any such degree of high and impracticable philosophy as apathy and indifference under such

circumstances? He that would not rescue a friend or brother never deserved the fidelity of the one or the affection of the other. Had the doctor or Murdaugh been murdered and the judge had not interfered a voice of execration against his faithlessness and cowardice would have rung over the whole state that could only have been equaled by the deep tone denunciation that would have resounded through the length of the land if the mob unharmed had succeeded in their bloody and

murderous purpose. The revolutionary and disorganizing proceedings of mobs in New York, in Mississippi, and at other points in a few years past have tarnished the fair character of our country. These lawless conspirators have imprinted on the escutcheon of our state the first foul blotch of lynchism. Contaminers of the law, signally foiled by the resistance of their victims, in the name of the law they now ask you to perform an act of vengeance for them. Rebuke them from

this place. Repudiate their claim to be avenged through your instrumentality on men whose lives they have attempted by violence, whose characters they have traduced, whose liberty they have infringed by incarceration in a common felon's jail and whom they would now doom to felon's graves. By your verdict, proclaim to the world that our state, in bygone times known as the dark and bloody ground, is now a land of civilization where peace and good order in society are respected

and the laws revered. Gentlemen, any inaccuracy of statement as to the evidence I have fallen into, your memories will correct. The further defense to be made by an older and abler advocate will more than supply all admission on my part. As to myself, the fate of the defendants is in your hands. I thank you for your polite attention. End of section 25, read by Martha Weller, Champaign, Illinois, June 13, 2023.