Tremain ties together the defense’s lines of reasoning in his concluding argument. “On the poor, feeble words that may fall from my lips,” he tells the jury, “rest not only the fate of this young man with a future opening bright and beautiful before him, but little past the age of thirty, but also whether the blow shall be struck by your hands that will place upon that innocent child of his the stigma of being denounced as the son of a murderer; and whether his wife shall be hereafter pointed out as the widow of a murderer; and finally whether the gray hairs of this old father and mother shall be brought down in sorrow to the grave.
“There is a great disparity of forces here in this struggle. The prisoner, single-handed and alone, is struggling for his life against the full power of this gigantic commonwealth. Arrayed against him stands the public prosecutor. At his beck the whole police force of the city is ready to summon witnesses. The treasury of the state, the whole taxable power, the whole taxable property, is subject to the will of the public prosecutor. He comes here clothed with tenfold more power and influence before a jury than I can possibly collect, and then, in addition to all that, he has been aided by the learning, the ability, and the wisdom of two of the ablest members of our profession. The contest is an unequal one, and unless the prisoner’s defense is one that is sustained by the power of truth, he can scarcely expect that, in such a mighty contest, he will not be driven to the wall. But if he has the truth on his side, then I care not what powers are brought against him.”
Tremain sets out a series of propositions: “That the jury should not find the prisoner guilty of murder unless they are satisfied that he killed the deceased with premeditated design to effect his death; that the deceased died from the effects of a pistol-shot wound; that there was no justifiable cause of firing the pistol; and at the time the prisoner was not insane.” If the jury entertains a reasonable doubt on any of these points, it must find Ned Stokes not guilty.
Tremain reiterates the arguments against each of these points. Stokes did not go to the Grand Central Hotel seeking Fisk; on the contrary, the meeting there was accidental. Fisk’s death was the result of an overdose of opium, not of the gunshot wounds. Stokes had ample reason to believe that Fisk intended to harm him, culminating in Stokes’s perception—whether accurate or not—that Fisk had drawn a pistol and was about to fire. Fisk’s persecutions of Stokes had driven Stokes out of his right mind.
Tremain recapitulates the testimony of Josie Mansfield about Fisk’s repeated threats against Stokes, and he asserts that the prosecution has utterly failed to rebut this testimony. So have Fisk’s friends failed to defend their deceased partner, by their conspicuous absence at the trial and from the prosecution’s list of witnesses. “Where is Jay Gould? Where is William M. Tweed? Where are those men that knew him in life and had enjoyed his hospitalities or his bounty? Where are the men who ate those splendid state dinners that he loved to give? Was there not one to be found who would say a word for their fallen chief?”
Some in the courtroom nod and exchange looks at the mention of Gould and Tweed, as if to second the query about their absence. Others stay focused on Tremain.
Tremain takes care not to assert that Fisk deserved killing, but he says that a violent death for such a man should come as no surprise. “The power of this man, through the Erie corporation, with its arms extending all over this country, with its thousands of employees and hundreds of millions of capital, and its many branches wielded by him and his associates—Rome, in the days of her decline, with all the examples of profligacy and licentiousness on the part of her nobility, never presented such instances as is shown in the life and career of this man. Do you ask me again whether I justify murder without any sense of imminent and impending danger? No. But God moves by laws. Men who live in violation of His laws, sooner or later, although they may flourish and prosper, will fail. It is well that it is so, for the successful career of a man who tramples under foot all laws human and divine would set at naught the teachings of the Bible and the instruction of father and mother around the domestic fireside. He who takes the sword shall fall by the sword. Men who live a life of violence are ever liable to fall victims to violence.”
Tremain asks the jury to do its duty, no more and no less. And part of its duty is to inform justice with humility. This is a fundamental premise of the law. “It is found in the very unanimity which requires the agreeing of all the twelve jurors before convicting. It is found in the doctrine that it is better that ninety-nine guilty men should go free than that one innocent should suffer. It is found in the rule that if there is reasonable doubt on the whole case, it is your duty to acquit. And finally, more clearly perhaps than in any other case, it is found in the great principle that he is to be tried by twelve men with human hearts and human sympathies, with that natural reluctance which exists against consigning a man to the gallows.”