White’s yard between three and four o’clock in the morning, he answered, Frank Knapp. It is not clear that this is not true. There may be many circumstances of importance connected with this, though we believe the murder to have been committed between ten and eleven o’clock. The letter to Dr. Barstow states it to have been done about eleven o’clock; it states it to have been done with a blow on the head, from a weapon loaded with lead. Here is too great a correspondence with the reality not to have some meaning in it. Dr. Peirson was always of the opinion, that the two classes of wounds were made with different instruments, and by different hands. It is possible that one class was inflicted at one time, and the other at another. It is possible that on the last visit the pulse might not have entirely ceased to beat, and then the finishing stroke was given. It is said, that, when the body was discovered, some of the wounds wept, while the others did not. They may have been inflicted from mere wantonness. It was known that Captain White was accustomed to keep specie by him in his chamber; this perhaps may explain the last visit. It is proved, that this defendant was in the habit of retiring to bed, and leaving it afterwards, without the knowledge of his family; perhaps he did so on this occasion. We see no reason to doubt the fact; and it does not shake our belief that the murder was committed early in the night.
What are the probabilities as to the time of the murder? Mr. White was an aged man; he usually retired to bed at about half-past nine. He slept soundest in the early part of the night; usually awoke in the middle and latter part; and his habits were perfectly well known. When would persons, with a knowledge of these facts, be most likely to approach him? Most certainly, in the first hour of his sleep. This would be the safest time. If seen then going to or from the house, the appearance would be least suspicious. The earlier hour would then have been most probably selected.
Gentlemen, I shall dwell no longer on the evidence which tends to prove that there was a conspiracy, and that the prisoner was a conspirator. All the circumstances concur to make out this point. Not only Palmer swears to it, in effect, and Leighton, but Allen mainly supports Palmer, and Osborn’s books lend confirmation, so far as possible, from such a source. Palmer is contradicted in nothing, either by any other witness, or any proved circumstance or occurrence. Whatever could be expected to support him does support him. All the evidence clearly manifests, I think, that there was a conspiracy; that it originated with Joseph Knapp; that defendant became a party to it, and was one of its conductors, from first to last. One of the most powerful circumstances is Palmer’s letter from Belfast. The amount of this is a direct charge on the Knapps of the authorship of this murder. How did they treat this charge; like honest men, or like guilty men? We have seen how it was treated. Joseph Knapp fabricated letters, charging another person, and caused them to be put into the post-office.
I shall now proceed on the supposition, that it is proved that there was a conspiracy to murder Mr. White, and that the prisoner was party to it.
The second and the material inquiry is, Was the prisoner present at the murder, aiding and abetting therein?
This leads to the legal question in the case. What does the law mean, when it says, that, in order to charge him as a principal, “he must be present aiding and abetting in the murder”?
In the language of the late Chief Justice, “It is not required that the abettor shall be actually upon the spot when the murder is committed, or even in sight of the more immediate perpetrator of the victim, to make him a principal. If he be at a distance, co-operating in the act, by watching to prevent relief, or to give an alarm, or to assist his confederate in escape, having knowledge of the purpose and object of the assassin, this in the eye of the law is being present, aiding and abetting, so as to make him a principal in the murder.”
“If he be at a distance co-operating.” This is not a distance to be measured by feet or rods; if the intent to lend aid combine with a knowledge that the murder is to be committed, and the person so intending be so situate that he can by any possibility lend this aid in any manner, then he is present in legal contemplation. He need not lend any actual aid; to be ready to assist is assisting.
There are two sorts of murder; the distinction between them it is of essential importance to bear in mind: 1. Murder in an affray, or upon sudden and unexpected provocation. 2. Murder secretly, with a deliberate, predetermined intention to commit the crime. Under the first class, the question usually is, whether the offence be murder or manslaughter, in the person who commits the deed. Under the second class, it is often a question whether others than he who actually did the deed were present, aiding and assisting therein. Offences of this kind ordinarily happen when there is nobody present except those who go on the same design. If a riot should happen in the court-house, and one should kill another, this may be murder, or it may not, according to the intention with which it was done; which is always matter of fact, to be collected from the circumstances at the time. But in secret murders, premeditated and determined on, there can be no doubt of the murderous intention; there can be no doubt, if a person be present, knowing a murder is to be done, of his concurring in the act. His being there is a proof of his intent to aid and abet; else, why is he there?
It has been contended, that proof must be given that the person accused did actually afford aid, did lend a hand in the murder itself; and without this proof, although he may be near by, he may be presumed to be there for an innocent purpose; he may have crept silently there to hear the news, or from mere curiosity to see what was going on.[2] Preposterous, absurd! Such an idea shocks all common sense. A man is found to be a conspirator to commit a murder; he has planned it; he has assisted in arranging the time, the place and the means; and he is found in the place, and at the time, and yet it is suggested that he might have been there, not for co-operation and concurrence, but from curiosity! Such an argument deserves no answer. It would be difficult to give it one, in decorous terms. Is it not to be taken for granted, that a man seeks to accomplish his own purposes? When he has planned a murder, and is present at its execution, is he there to forward or to thwart his own design? is he there to assist, or there to prevent? But “Curiosity”! He may be there from mere “curiosity”! Curiosity to witness the success of the execution of his own plan of murder! The very walls of a court-house ought not to stand, the ploughshare should run through the ground it stands on, where such an argument could find toleration.[3]
It is not necessary that the abettor should actually lend a hand, that he should take a part in the act itself; if he be present ready to assist, that is assisting. Some of the doctrines advanced would acquit the defendant, though he had gone to the bedchamber of the deceased, though he had been standing by when the assassin gave the blow. This is the argument we have heard to-day.
The court here said, they did not so understand the argument of the counsel for defendant. Mr. Dexter said, “The intent and power alone must co-operate.”
No doubt the law is, that being ready to assist is assisting, if the party has the power to assist, in case of need. It is so stated by Foster, who is a high authority. “If A happeneth to be present at a murder, for instance, and taketh no part in it, nor endeavoreth to prevent it, nor apprehendeth the murderer, nor levyeth hue and cry after him, this strange behavior of his, though highly criminal, will not of itself render him either principal or accessory.” “But if a fact amounting to murder should be committed in prosecution of some unlawful purpose, though it were but a bare trespass, to which A in the case last stated had consented, and he had gone in order to give assistance, if need were, for carrying it into execution, this would have amounted to murder in him, and in every person present and joining with him.” “If the fact was committed in prosecution of the original purpose which was unlawful, the whole party will be involved in the guilt of him who gave the blow. For in combinations of this kind, the mortal stroke, though given by one of the party, is considered in the eye of the law, and of sound reason too, as given by every individual present and abetting. The person actually giving the stroke is no more than the hand or instrument by which the others strike.” The author, in speaking of being present, means actual presence; not actual in opposition to constructive, for the law knows no such distinction. There is but one presence, and this is the situation from which aid, or supposed aid, may be rendered. The law does not say where the person is to go, or how near he is to go, but that he must be where he may give assistance, or where the perpetrator may believe that he may be assisted by him. Suppose that he is acquainted with the design of the murderer, and has a knowledge of the time when it is to be carried into effect, and goes out with a view to render assistance, if need be; why, then, even though the murderer does not know of this, the person so going out will be an abettor in the murder.
It is contended that the prisoner at the bar could not be a principal, he being in Brown Street, because he could not there render assistance; and you are called upon to determine this case, according as you may be of opinion whether Brown Street was, or was not, a suitable, convenient, well-chosen place to aid in this murder. This is not the true question. The inquiry is not whether you would have selected this place in preference to all others, or whether you would have selected it at all. If the parties chose it, why should we doubt about it? How do we know the use they intended to make of it, or the kind of aid that he was to afford by being there? The question for you to consider is, Did the defendant go into Brown Street in aid of this murder? Did he go there by agreement, by appointment with the perpetrator?[4] If so, every thing else follows. The main thing, indeed the only thing, is to inquire whether he was in Brown Street by appointment with Richard Crowninshield. It might be to keep general watch; to observe the lights, and advise as to time of access; to meet the murderer on his return, to advise him as to his escape; to examine his clothes, to see if any marks of blood were upon them; to furnish exchange of clothes, or new disguise, if necessary; to tell him through what streets he could safely retreat, or whether he could deposit the club in the place designed; or it might be without any distinct object, but merely to afford that encouragement which would proceed from Richard Crowninshield’s consciousness that he was near. It is of no consequence whether, in your opinion, the place was well chosen or not, to afford aid; if it was so chosen, if it was by appointment that he was there, it is enough. Suppose Richard Crowninshield, when applied to to commit the murder, had said, “I won’t do it unless there can be some one near by to favor my escape; I won’t go unless you will stay in Brown Street.” Upon the gentleman’s argument, he would not be an aider and abettor in the murder, because the place was not well chosen; though it is apparent that the being in the place chosen was a condition, without which the murder would never have happened.
You are to consider the defendant as one in the league, in the combination to commit the murder. If he was there by appointment with the perpetrator, he is an abettor. The concurrence of the perpetrator in his being there is proved by the previous evidence of the conspiracy. If Richard Crowninshield, for any purpose whatsoever, made it a condition of the agreement, that Frank Knapp should stand as backer, then Frank Knapp was an aider and abettor; no matter what the aid was, or what sort it was, or degree, be it ever so little; even if it were to judge of the hour when it was best to go, or to see when the lights were extinguished, or to give an alarm if any one approached. Who better calculated to judge of these things than the murderer himself? and if he so determined them, that is sufficient.
Now as to the facts. Frank Knapp knew that the murder was that night to be committed; he was one of the conspirators, he knew the object, he knew the time. He had that day been to Wenham to see Joseph, and probably to Danvers to see Richard Crowninshield, for he kept his motions secret. He had that day hired a horse and chaise of Osborn, and attempted to conceal the purpose for which it was used; he had intentionally left the _place_ and the _price_ blank on Osborn’s books. He went to Wenham by the way of Danvers; he had been told the week before to hasten Dick; he had seen the Crowninshields several times within a few days; he had a saddle-horse the Saturday night before; he had seen Mrs. Beckford at Wenham, and knew she would not return that night. She had not been away before for six weeks, and probably would not soon be again. He had just come from Wenham. Every day, for the week previous, he had visited one or another of these conspirators, save Sunday, and then probably he saw them in town. When he saw Joseph on the 6th, Joseph had prepared the house, and would naturally tell him of it; there were constant communications between them; daily and nightly visitation; too much knowledge of these parties and this transaction, to leave a particle of doubt on the mind of any one, that Frank Knapp knew the murder was to be committed this night. The hour was come, and he knew it; if so, and he was in Brown Street, without explaining why he was there, can the jury for a moment doubt whether he was there to countenance, aid, or support; or for curiosity alone; or to learn how the wages of sin and death were earned by the perpetrator?
Here Mr. Webster read the law from Hawkins. 1 Hawk. 204, Lib. 1, ch. 32 sec. 7.
The perpetrator would derive courage, and strength, and confidence, from the knowledge that one of his associates was near by. If he was in Brown Street, he could have been there for no other purpose. If there for this purpose, then he was, in the language of the law, _present_, aiding and abetting in the murder.
His interest lay in being somewhere else. If he had nothing to do with the murder, no part to act, why not stay at home? Why should he jeopard his own life, if it was not agreed that he should be there? He would not voluntarily go where the very place would cause him to swing if detected. He would not voluntarily assume the place of danger. His taking this place proves that he went to give aid. His staying away would have made an _alibi_. If he had nothing to do with the murder, he would be at home, where he could prove his _alibi_. He knew he was in danger, because he was guilty of the conspiracy, and, if he had nothing to do, would not expose himself to suspicion or detection.
Did the prisoner at the bar countenance this murder? Did he concur, or did he non-concur, in what the perpetrator was about to do? Would he have tried to shield him? Would he have furnished his cloak for protection? Would he have pointed out a safe way of retreat? As you would answer these questions, so you should answer the general question, whether he was there consenting to the murder, or whether he was there as a spectator only.
One word more on this presence, called constructive presence. What aid is to be rendered? Where is the line to be drawn, between acting, and omitting to act? Suppose he had been in the house, suppose he had followed the perpetrator to the chamber, what could he have done? This was to be a murder by stealth; it was to be a secret assassination. It was not their purpose to have an open combat; they were to approach their victim unawares, and silently give the fatal blow. But if he had been in the chamber, no one can doubt that he would have been an abettor; because of his presence, and ability to render services, if needed. What service could he have rendered, if there? Could he have helped him to fly? Could he have aided the silence of his movements? Could he have facilitated his retreat, on the first alarm? Surely, this was a case where there was more of safety in going alone than with another; where company would only embarrass. Richard Crowninshield would prefer to go alone. He knew his errand too well. His nerves needed no collateral support. He was not the man to take with him a trembling companion. He would prefer to have his aid at a distance. He would not wish to be encumbered by his presence. He would prefer to have him out of the house. He would prefer that he should be in Brown Street. But whether in the chamber, in the house, in the garden, or in the street, whatsoever is aiding in _actual presence_ is aiding in _constructive presence_; any thing that is aid in one case is aid in the other.[5]
If, then, the aid be anywhere, so as to embolden the perpetrator, to afford him hope or confidence in his enterprise, it is the same as though the person stood at his elbow with his sword drawn. His being there ready to act, with the power to act, is what makes him an abettor.
Here Mr. Webster referred to the cases of Kelly, of Hyde, and others, cited by counsel for the defendant, and showed that they did not militate with the doctrine for which he contended. The difference is, in those cases there was open violence; this was a case of secret assassination. The aid must meet the occasion. Here no _acting_ was necessary, but watching, concealment of escape, management.
What are the _facts_ in relation to this presence? Frank Knapp is proved to have been a conspirator, proved to have known that the deed was now to be done. Is it not probable that he was in Brown Street to concur in the murder? There were four conspirators. It was natural that some one of them should go with the perpetrator. Richard Crowninshield was to be the perpetrator; he was to give the blow. There is no evidence of any casting of the parts for the others. The defendant would probably be the man to take the second part. He was fond of exploits, he was accustomed to the use of sword-canes and dirks. If any aid was required, he was the man to give it. At least, there is no evidence to the contrary of this.
Aid could not have been received from Joseph Knapp, or from George Crowninshield. Joseph Knapp was at Wenham, and took good care to prove that he was there. George Crowninshield has proved satisfactorily where he was; that he was in other company, such as it was, until eleven o’clock. This narrows the inquiry. This demands of the prisoner to show, if he was not in this place, where he was. It calls on him loudly to show this, and to show it truly. If he could show it, he would do it. If he does not tell, and that truly, it is against him. The defence of an _alibi_ is a double-edged sword. He knew that he was in a situation where he might be called upon to account for himself. If he had had no particular appointment or business to attend to, he would have taken care to be able so to account. He would have been out of town, or in some good company. Has he accounted for himself on that night to your satisfaction?
The prisoner has attempted to prove an _alibi_ in two ways. In the first place, by four young men with whom he says he was in company, on the evening of the murder, from seven o’clock till near ten o’clock. This depends upon the certainty of the night. In the second place, by his family, from ten o’clock afterwards. This depends upon the certainty of the time of the night. These two classes of proof have no connection with each other. One may be true, and the other false; or they may both be true, or both be false. I shall examine this testimony with some attention, because, on a former trial, it made more impression on the minds of the court than on my own mind. I think, when carefully sifted and compared, it will be found to have in it more of plausibility than reality.
Mr. Page testifies, that on the evening of the 6th of April he was in company with Burchmore, Balch, and Forrester, and that he met the defendant about seven o’clock, near the Salem Hotel; that he afterwards met him at Remond’s, about nine o’clock, and that he was in company with him a considerable part of the evening. This young gentleman is a member of college, and says that he came to town the Saturday evening previous; that he is now able to say that it was the night of the murder when he walked with Frank Knapp, from the recollection of the fact, that he called himself to an account, on the morning after the murder, as it is natural for men to do when an extraordinary occurrence happens. Gentlemen, this kind of evidence is not satisfactory; general impressions as to time are not to be relied on. If I were called on to state the particular day on which any witness testified in this cause, I could not do it. Every man will notice the same thing in his own mind. There is no one of these young men that could give an account of himself for any _other_ day in the month of April. They are made to remember the fact, and then they think they remember the time. The witness has no means of knowing it was Tuesday rather than any other time. He did not know it at first; he could not know it afterwards. He says he called himself to an account. This has no more to do with the murder than with the man in the moon. Such testimony is not worthy to be relied on in any forty-shilling cause. What occasion had he to call himself to an account? Did he suppose that he should be suspected? Had he any intimation of this conspiracy?
Suppose, Gentlemen, you were either of you asked where you were, or what you were doing, on the fifteenth day of June; you could not answer this question without calling to mind some events to make it certain. Just as well may you remember on what you dined each day of the year past. Time is identical. Its subdivisions are all alike. No man knows one day from another, or one hour from another, but by some fact connected with it. Days and hours are not visible to the senses, nor to be apprehended and distinguished by the understanding. The flow of time is known only by something which marks it; and he who speaks of the date of occurrences with nothing to guide his recollection speaks at random, and is not to be relied on. This young gentleman remembers the facts and occurrences; he knows nothing why they should not have happened on the evening of the 6th; but he knows no more. All the rest is evidently conjecture or impression.
Mr. White informs you, that he told him he could not tell what night it was. The first thoughts are all that are valuable in such case. They miss the mark by taking second aim.
Mr. Balch believes, but is not sure, that he was with Frank Knapp on the evening of the murder. He has given different accounts of the time. He has no means of making it certain. All he knows is, that it was some evening before Fast-day. But whether Monday, Tuesday, or Saturday, he cannot tell.
Mr. Burchmore says, to the best of his belief, it was the evening of the murder. Afterwards he attempts to speak positively, from recollecting that he mentioned the circumstance to William Peirce, as he went to the Mineral Spring on Fast-day. Last Monday morning he told Colonel Putnam he could not fix the time. This witness stands in a much worse plight than either of the others. It is difficult to reconcile all he has said with any belief in the accuracy of his recollections.
Mr. Forrester does not speak with any certainty as to the night; and it is very certain that he told Mr. Loring and others, that he did not know what night it was.
Now, what does the testimony of these four young men amount to? The only circumstance by which they approximate to an identifying of the night is, that three of them say it was cloudy; they think their walk was either on Monday or Tuesday evening, and it is admitted that Monday evening was clear, whence they draw the inference that it must have been Tuesday.
But, fortunately, there is one _fact_ disclosed in their testimony that settles the question. Balch says, that on the evening, whenever it was, he saw the prisoner; the prisoner told him he was going out of town on horseback, for a distance of about twenty minutes’ drive, and that he was going to get a horse at Osborn’s. This was about seven o’clock. At about nine, Balch says he saw the prisoner again, and was then told by him that he had had his ride, and had returned. Now it appears by Osborn’s books, that the prisoner had a saddle-horse from his stable, not on Tuesday evening, the night of the murder, but on the Saturday evening previous. This fixes the time about which these young men testify, and is a complete answer and refutation of the attempted _alibi_ on Tuesday evening.
I come now to speak of the testimony adduced by the defendant to explain where he was after ten o’clock on the night of the murder. This comes chiefly from members of the family; from his father and brothers.
It is agreed that the affidavit of the prisoner should be received as evidence of what his brother, Samuel H. Knapp, would testify if present. Samuel H. Knapp says, that, about ten minutes past ten o’clock, his brother, Frank Knapp, on his way to bed, opened his chamber door, made some remarks, closed the door, and went to his chamber; and that he did not hear him leave it afterwards. How is this witness able to fix the time at ten minutes past ten? There is no circumstance mentioned by which he fixes it. He had been in bed, probably asleep, and was aroused from his sleep by the opening of the door. Was he in a situation to speak of time with precision? Could he know, under such circumstances, whether it was ten minutes past ten, or ten minutes before eleven, when his brother spoke to him? What would be the natural result in such a case? But we are not left to conjecture this result. We have positive testimony on this point. Mr. Webb tells you that Samuel told him, on the 8th of June, “that he did not know what time his brother Frank came home, and that he was not at home when _he_ went to bed.” You will consider this testimony of Mr. Webb as indorsed upon this affidavit; and with this indorsement upon it, you will give it its due weight. This statement was made to him after Frank was arrested.
I come to the testimony of the father. I find myself incapable of speaking of him or his testimony with severity. Unfortunate old man! Another Lear, in the conduct of his children; another Lear, I apprehend, in the effect of his distress upon his mind and understanding. He is brought here to testify, under circumstances that disarm severity, and call loudly for sympathy. Though it is impossible not to see that his story cannot be credited, yet I am unable to speak of him otherwise than in sorrow and grief. Unhappy father! he strives to remember, perhaps persuades himself that he does remember, that on the evening of the murder he was himself at home at ten o’clock. He thinks, or seems to think, that his son came in at about five minutes past ten. He fancies that he remembers his conversation; he thinks he spoke of bolting the door; he thinks he asked the time of night; he seems to remember his then going to his bed. Alas! these are but the swimming fancies of an agitated and distressed mind. Alas! they are but the dreams of hope, its uncertain lights, flickering on the thick darkness of parental distress. Alas! the miserable father knows nothing, in reality, of all these things.
Mr. Shepard says that the first conversation he had with Mr. Knapp was soon after the murder, and _before_ the arrest of his sons. Mr. Knapp says it was _after_ the arrest of his sons. His own fears led him to say to Mr. Shepard, that his “son Frank was at home that night; and so Phippen told him,” or “as Phippen told him.” Mr. Shepard says that he was struck with the remark at the time; that it made an unfavorable impression on his mind; he does not tell you what that impression was, but when you connect it with the previous inquiry he had made, whether Frank had continued to associate with the Crowninshields, and recollect that the Crowninshields were then known to be suspected of this crime, can you doubt what this impression was? can you doubt as to the fears he then had?
This poor old man tells you, that he was greatly perplexed at the time; that he found himself in embarrassed circumstances; that on this very night he was engaged in making an assignment of his property to his friend, Mr. Shepard. If ever charity should furnish a mantle for error, it should be here. Imagination cannot picture a more deplorable, distressed condition.
The same general remarks may be applied to his conversation with Mr. Treadwell, as have been made upon that with Mr. Shepard. He told him, that he believed Frank was at home about the usual time. In his conversations with either of these persons, he did not pretend to know, of his own knowledge, the time that he came home. He now tells you positively that he recollects the time, and that he so told Mr. Shepard. He is directly contradicted by both these witnesses, as respectable men as Salem affords.
This idea of an _alibi_ is of recent origin. Would Samuel Knapp have gone to sea if it were then thought of? His testimony, if true, was too important to be lost. If there be any truth in this part of the _alibi_, it is so near in point or time that it cannot be relied on. The mere variation of half an hour would avoid it. The mere variations of different timepieces would explain it.
Has the defendant proved where he was on that night? If you doubt about it, there is an end of it. The burden is upon him to satisfy you beyond all reasonable doubt. Osborn’s books, in connection with what the young men state, are conclusive, I think, on this point. He has not, then, accounted for himself; he has attempted it, and has failed. I pray you to remember, Gentlemen, that this is a case in which the prisoner would, more than any other, be rationally able to account for himself on the night of the murder, if he could do so. He was in the conspiracy, he knew the murder was then to be committed, and if he himself was to have no hand in its actual execution, he would of course, as a matter of safety and precaution, be somewhere else, and be able to prove afterwards that he had been somewhere else. Having this motive to prove himself elsewhere, and the power to do it if he were elsewhere, his failing in such proof must necessarily leave a very strong inference against him.
But, Gentlemen, let us now consider what is the evidence produced on the part of the government to prove that John Francis Knapp, the prisoner at the bar, was in Brown Street on the night of the murder. This is a point of vital importance in this cause. Unless this be made out, beyond reasonable doubt, the law of _presence_ does not apply to the case. The government undertake to prove that he was present aiding in the murder, by proving that he was in Brown Street for this purpose. Now, what are the undoubted facts? They are, that two persons were seen in that street, several times during that evening, under suspicious circumstances; under such circumstances as induced those who saw them to watch their movements. Of this there can be no doubt. Mirick saw a man standing at the post opposite his store from fifteen minutes before nine until twenty minutes after, dressed in a full frock-coat, glazed cap, and so forth, in size and general appearance answering to the prisoner at the bar. This person was waiting there; and whenever any one approached him, he moved to and from the corner, as though he would avoid being suspected or recognized. Afterwards, two persons were seen by Webster, walking in Howard Street, with a slow, deliberate movement that attracted his attention. This was about half-past nine. One of these he took to be the prisoner at the bar, the other he did not know.
About half-past ten a person is seen sitting on the rope-walk steps, wrapped in a cloak. He drops his head when passed, to avoid being known. Shortly after, two persons are seen to meet in this street, without ceremony or salutation, and in a hurried manner to converse for a short time; then to separate, and run off with great speed. Now, on this same night a gentleman is slain, murdered in his bed, his house being entered by stealth from without; and his house situated within three hundred feet of this street. The windows of his chamber were in plain sight from this street; a weapon of death is afterwards found in a place where these persons were seen to pass, in a retired place, around which they had been seen lingering. It is now known that this murder was committed by four persons, conspiring together for this purpose. No account is given who these suspected persons thus seen in Brown Street and its neighborhood were. Now, I ask, Gentlemen, whether you or any man can doubt that this murder was committed by the persons who were thus in and about Brown Street. Can any person doubt that they were there for purposes connected with this murder? If not for this purpose, what were they there for? When there is a cause so near at hand, why wander into conjecture for an explanation? Common-sense requires you to take the nearest adequate cause for a known effect. Who were these suspicious persons in Brown Street? There was something extraordinary about them; something noticeable, and noticed at the time; something in their appearance that aroused suspicion. And a man is found the next morning murdered in the near vicinity.
Now, so long as no other account shall be given of those suspicious persons, so long the inference must remain irresistible that they were the murderers. Let it be remembered, that it is already shown that this murder was the result of conspiracy and of concert; let it be remembered, that the house, having been opened from within, was entered by stealth from without. Let it be remembered that Brown Street, where these persons were repeatedly seen under such suspicious circumstances, was a place from which every occupied room in Mr. White’s house is clearly seen; let it be remembered, that the place, though thus very near to Mr. White’s house, is a retired and lonely place; and let it be remembered that the instrument of death was afterwards found concealed very near the same spot.
Must not every man come to the conclusion, that these persons thus seen in Brown Street were the murderers? Every man’s own judgment, I think, must satisfy him that this must be so. It is a plain deduction of common sense. It is a point on which each one of you may reason like a Hale or a Mansfield. The two occurrences explain each other. The murder shows why these persons were thus lurking, at that hour, in Brown Street; and their lurking in Brown Street shows who committed the murder.
If, then, the persons in and about Brown Street were the plotters and executers of the murder of Captain White, we know who they were, and you know that _there_ is one of them.
This fearful concatenation of circumstances puts him to an account. He was a conspirator. He had entered into this plan of murder. The murder is committed, and he is known to have been within three minutes’ walk of the place. He must account for himself, He has attempted this, and failed. Then, with all these general reasons to show he was actually in Brown Street, and his failures in his _alibi_, let us see what is the direct proof of his being there. But first, let me ask, is it not very remarkable that there is no attempt to show where Richard Crowninshield, Jr. was on that night? We hear nothing of him. He was seen in none of his usual haunts about the town. Yet, if he was the actual perpetrator of the murder, which nobody doubts, he was in the town somewhere. Can you, therefore, entertain a doubt that he was one of the persons seen in Brown Street? And as to the prisoner, you will recollect, that, since the testimony of the young men has failed to show where he was on that evening, the last we hear or know of him, on the day preceding the murder, is, that at four o’clock, P.M., he was at his brother’s in Wenham. He had left home, after dinner, in a manner doubtless designed to avoid observation, and had gone to Wenham, probably by way of Danvers. As we hear nothing of him after four o’clock, P.M., for the remainder of the day and evening; as he was one of the conspirators; as Richard Crowninshield, Jr. was another; as Richard Crowninshield, Jr. was in town in the evening, and yet seen in no usual place of resort,–the inference is very fair, that Richard Crowninshield, Jr. and the prisoner were together, acting in execution of their conspiracy. Of the four conspirators, J.J. Knapp, Jr. was at Wenham, and George Crowninshield has been accounted for; so that if the persons seen in Brown Street were the murderers, one of them must have been Richard Crowninshield, Jr., and the other must have been the prisoner at the bar.
Now, as to the proof of his identity with one of the persons seen in Brown Street, Mr. Mirick, a cautious witness, examined the person he saw, closely, in a light night, and says that he thinks the prisoner at the bar is the person; and that he should not hesitate at all, if he were seen in the same dress. His opinion is formed partly from his own observation, and partly from the description of others. But this description turns out to be only in regard to the dress. It is said, that he is now more confident than on the former trial. If he has varied in his testimony make such allowance as you may think proper. I do not perceive any material variance. He thought him the same person, when he was first brought to court, and as he saw him get out of the chaise. This is one of the cases in which a witness is permitted to give an opinion. This witness is as honest as yourselves, neither willing nor swift; but he says, he believes it was the man. His words are, “This is my opinion “; and this opinion it is proper for him to give. If partly founded on what he has _heard_, then this opinion is not to be taken; but if on what he _saw_, then you can have no better evidence. I lay no stress on similarity of dress. No man will ever lose his life by my voice on such evidence. But then it is proper to notice, that no inferences drawn from any _dissimilarity_ of dress can be given in the prisoner’s favor; because, in fact, the person seen by Mirick was dressed like the prisoner.
The description of the person seen by Mirick answers to that of the prisoner at the bar. In regard to the supposed discrepancy of statements, before and now, there would be no end to such minute inquiries. It would not be strange if witnesses should vary. I do not think much of slight shades of variation. If I believe the witness is honest, that is enough. If he has expressed himself more strongly now than then, this does not prove him false.
Peter E. Webster saw the prisoner at the bar, as he then thought, and still thinks, walking in Howard Street at half-past nine o’clock. He then thought it was Frank Knapp, and has not altered his opinion since. He knew him well; he had long known him. If he then thought it was he, this goes far to prove it. He observed him the more, as it was unusual to see gentlemen walk there at that hour. It was a retired, lonely street. Now, is there reasonable doubt that Mr. Webster did see him there that night? How can you have more proof than this? He judged by his walk, by his general appearance, by his deportment. We all judge in this manner. If you believe he is right, it goes a great way in this case. But then this person, it is said, had a cloak on, and that he could not, therefore, be the same person that Mirick saw. If we were treating of men that had no occasion to disguise themselves or their conduct, there might be something in this argument. But as it is, there is little in it. It may be presumed that they would change their dress. This would help their disguise. What is easier than to throw off a cloak, and again put it on? Perhaps he was less fearful of being known when alone, than when with the perpetrator.
Mr. Southwick swears all that a man can swear. He has the best means of judging that could be had at the time. He tells you that he left his father’s house at half-past ten o’clock, and as he passed to his own house in Brown Street he saw a man sitting on the steps of the rope-walk; that he passed him three times, and each time he held down his head, so that he did not see his face. That the man had on a cloak, which was not wrapped around him, and a glazed cap. That he took the man to be Frank Knapp at the time; that, when he went into his house, he told his wife that he thought it was Frank Knapp; that he knew him well, having known him from a boy. And his wife swears that he did so tell her when he came home. What could mislead this witness at the time? He was not then suspecting Frank Knapp of any thing. He could not then be influenced by any prejudice. If you believe that the witness saw Frank Knapp in this position at this time, it proves the case. Whether you believe it or not depends upon the credit of the witness. He swears it. If true, it is solid evidence. Mrs. Southwick supports her husband. Are they true? Are they worthy of belief? If he deserves the epithets applied to him, then he ought not to be believed. In this fact they cannot be mistaken; they are right, or they are perjured. As to his not speaking to Frank Knapp, that depends upon their intimacy. But a very good reason is, Frank chose to disguise himself. This makes nothing against his credit. But it is said that he should not be believed. And why? Because, it is said, he himself now tells you, that, when he testified before the grand jury at Ipswich, he did not then say that he thought the person he saw in Brown Street was Frank Knapp, but that “the person was about the size of Selman.” The means of attacking him, therefore, come from himself. If he is a false man, why should he tell truths against himself? They rely on his veracity to prove that he is a liar. Before you can come to this conclusion, you will consider whether all the circumstances are now known, that should have a bearing on this point. Suppose that, when he was before the grand jury, he was asked by the attorney this question, “Was the person you saw in Brown Street about the size of Selman?” and he answered Yes. This was all true. Suppose, also, that he expected to be inquired of further, and no further questions were put to him. Would it not be extremely hard to impute to him perjury for this? It is not uncommon for witnesses to think that they have done all their duty, when they have answered the questions put to them. But suppose that we admit that he did not then tell all he knew, this does not affect the _fact_ at all; because he did tell, at the time, in the hearing of others, that the person he saw was Frank Knapp. There is not the slightest suggestion against the veracity or accuracy of Mrs. Southwick. Now she swears positively, that her husband came into the house and told her that he had seen a person on the rope-walk steps, and believed it was Frank Knapp.
It is said that Mr. Southwick is contradicted, also, by Mr. Shillaber. I do not so understand Mr. Shillaber’s testimony. I think what they both testify is reconcilable, and consistent. My learned brother said, on a similar occasion, that there is more probability, in such cases, that the persons hearing should misunderstand, than that the person speaking should contradict himself. I think the same remark applicable here.
You have all witnessed the uncertainty of testimony, when witnesses are called to testify what other witnesses said. Several respectable counsellors have been summoned, on this occasion, to give testimony of that sort. They have, every one of them, given different versions. They all took minutes at the time, and without doubt intend to state the truth. But still they differ. Mr. Shillaber’s version is different from every thing that Southwick has stated elsewhere. But little reliance is to be placed on slight variations in testimony, unless they are manifestly intentional. I think that Mr. Shillaber must be satisfied that he did not rightly understand Mr. Southwick. I confess I misunderstood Mr. Shillaber on the former trial, if I now rightly understand him. I, therefore, did not then recall Mr. Southwick to the stand. Mr. Southwick, as I read it, understood Mr. Shillaber as asking him about a person coming out of Newbury Street, and whether, for aught he knew, it might not be Richard Crowninshield, Jr. He answered, that he could not tell. He did not understand Mr. Shillaber as questioning him as to the person whom he saw sitting on the steps of the rope-walk. Southwick, on this trial, having heard Mr. Shillaber, has been recalled to the stand, and states that Mr. Shillaber entirely misunderstood him. This is certainly most probable, because the controlling fact in the case is not controverted; that is, that Southwick did tell his wife, at the very moment he entered his house, that he had seen a person on the rope-walk steps, whom he believed to be Frank Knapp. Nothing can prove with more certainty than this, that Southwick, at the time, _thought_ the person whom he thus saw to be the prisoner at the bar.
Mr. Bray is an acknowledged accurate and intelligent witness. He was highly complimented by my brother on the former trial, although he now charges him with varying his testimony. What could be his motive? You will be slow in imputing to him any design of this kind. I deny altogether that there is any contradiction. There may be differences, but not contradiction. These arise from the difference in the questions put; the difference between believing and knowing. On the first trial, he said he did not know the person, and now says the same. Then, we did not do all we had a right to do. We did not ask him who he thought it was. Now, when so asked, he says he believes it was the prisoner at the bar. If he had then been asked this question, he would have given the same answer. That he has expressed himself more strongly, I admit; but he has not contradicted himself. He is more confident now; and that is all. A man may not assert a thing, and still may have no doubt upon it. Cannot every man see this distinction to be consistent? I leave him in that attitude; that only is the difference. On questions of identity, opinion is evidence. We may ask the witness, either if he knew who the person seen was, or who he thinks he was. And he may well answer, as Captain Bray has answered, that he does not know who it was, but that he thinks it was the prisoner.
We have offered to produce witnesses to prove, that, as soon as Bray saw the prisoner, he pronounced him the same person. We are not at liberty to call them to corroborate our own witness. How, then, could this fact of the prisoner’s being in Brown Street be better proved? If ten witnesses had testified to it, it would be no better. Two men, who knew him well, took it to be Frank Knapp, and one of them so said, when there was nothing to mislead them. Two others, who examined him closely, now swear to their opinion that he is the man.
Miss Jaqueth saw three persons pass by the rope-walk, several evenings before the murder. She saw one of them pointing towards Mr. White’s house. She noticed that another had something which appeared to be like an instrument of music; that he put it behind him and attempted to conceal it. Who were these persons? This was but a few steps from the place where this apparent instrument of music (of _music_ such as Richard Crowninshield, Jr. spoke of to Palmer) was afterwards found. These facts prove this a point of rendezvous for these parties. They show Brown Street to have been the place for consultation and observation; and to this purpose it was well suited.
Mr. Burns’s testimony is also important. What was the defendant’s object in his private conversation with Burns? He knew that Burns was out that night; that he lived near Brown Street, and that he had probably seen him; and he wished him to say nothing. He said to Burns, “If you saw any of your friends out that night, say nothing about it; my brother Joe and I are your friends.” This is plain proof that he wished to say to him, if you saw me in Brown Street that night, say nothing about it.
But it is said that Burns ought not to be believed, because he mistook the color of the dagger, and because he has varied in his description of it. These are slight circumstances, if his general character be good. To my mind they are of no importance. It is for you to make what deduction you may think proper, on this account, from the weight of his evidence. His conversation with Burns, if Burns is believed, shows two things; first, that he desired Burns not to mention it, if he had seen him on the night of the murder; second, that he wished to fix the charge of murder on Mr. Stephen White. Both of these prove his own guilt.
I think you will be of opinion, that Brown Street was a probable place for the conspirators to assemble, and for an aid to be stationed. If we knew their whole plan, and if we were skilled to judge in such a case, then we could perhaps determine on this point better. But it is a retired place, and still commands a full view of the house; a lonely place, but still a place of observation. Not so lonely that a person would excite suspicion to be seen walking there in an ordinary manner; not so public as to be noticed by many. It is near enough to the scene of action in point of law. It was their point of centrality. The club was found near the spot, in a place provided for it, in a place that had been previously hunted out, in a concerted place of concealment. _Here was their point of rendezvous._ Here might the lights be seen. Here might an aid be secreted. Here was he within call. Here might he be aroused by the sound of the whistle. Here might he carry the weapon. Here might he receive the murderer after the murder.
Then, Gentlemen, the general question occurs, Is it satisfactorily proved, by all these facts and circumstances, that the defendant was in and about Brown Street on the night of the murder? Considering that the murder was effected by a conspiracy; considering that he was one of the four conspirators; considering that two of the conspirators have accounted for themselves on the night of the murder, and were not in Brown Street; considering that the prisoner does not account for himself, nor show where he was; considering that Richard Crowninshield, the other conspirator and the perpetrator, is not accounted for, nor shown to be elsewhere; considering that it is now past all doubt that two persons were seen lurking in and about Brown Street at different times, avoiding observation, and exciting so much suspicion that the neighbors actually watched them; considering that, if these persons thus lurking in Brown Street at that hour were not the murderers, it remains to this day wholly unknown who they were or what their business was; considering the testimony of Miss Jaqueth, and that the club was afterwards found near this place; considering, finally, that Webster and Southwick saw these persons, and then took one of them for the defendant, and that Southwick then told his wife so, and that Bray and Mirick examined them closely, and now swear to their belief that the prisoner was one of them;–it is for you to say, putting these considerations together, whether you believe the prisoner was actually in Brown Street at the time of the murder.
By the counsel for the prisoner, much stress has been laid upon the question, whether Brown Street was a place in which aid could be given, a place in which actual assistance could be rendered in this transaction. This must be mainly decided by their own opinion who selected the place; by what they thought at the time, according to their plan of operation.
If it was agreed that the prisoner should be there to assist, it is enough. If they thought the place proper for their purpose, according to their plan, it is sufficient. Suppose we could prove expressly that they agreed that Frank should be there, and he was there, and you should think it not a well-chosen place for aiding and abetting, must he be acquitted? No! It is not what _I_ think or _you_ think of the appropriateness of the place; it is what _they_ thought _at the time_. If the prisoner was in Brown Street by appointment and agreement with the perpetrator, for the purpose of giving assistance if assistance should be needed, it may safely be presumed that the place was suited to such assistance as it was supposed by the parties might chance to become requisite.
If in Brown Street, was he there by appointment? was he there to aid, if aid were necessary? was he there for, or against, the murderer? to concur, or to oppose? to favor, or to thwart? Did the perpetrator know he was there, there waiting? If so, then it follows that he was there by appointment. He was at the post half an hour; he was waiting for somebody. This proves appointment, arrangement, previous agreement; then it follows that he was there to aid, to encourage, to embolden the perpetrator; and that is enough. If he were in such a situation as to afford aid, or that he was relied upon for aid, then he was aiding and abetting. It is enough that the conspirator desired to have him there. Besides, it may be well said, that he could afford just as much aid there as if he had been in Essex Street, as if he had been standing even at the gate, or at the window. It was not an act of power against power that was to be done; it was a secret act, to be done by stealth. The aid was to be placed in a position secure from observation. It was important to the security of both that he should be in a lonely place. Now it is obvious that there are many purposes for which he might be in Brown Street.
1. Richard Crowninshield might have been secreted in the garden, and waiting for a signal;
2. Or he might be in Brown Street to advise him as to the time of making his entry into the house;
3. Or to favor his escape;
4. Or to see if the street was clear when he came out;
5. Or to conceal the weapon or the clothes;
6. To be ready for any unforeseen contingency.
Richard Crowninshield lived in Danvers. He would retire by the most secret way. Brown Street is that way. If you find him there, can you doubt why he was there?
If, Gentlemen, the prisoner went into Brown Street, by appointment with the perpetrator, to render aid or encouragement in any of these ways, he was _present_, in legal contemplation, aiding and abetting in this murder. It is not necessary that he should have done any thing; it is enough that he was ready to act, and in a place to act. If his being in Brown Street, by appointment, at the time of the murder, emboldened the purpose and encouraged the heart of the murderer, by the hope of instant aid, if aid should become necessary, then, without doubt, he was present, aiding and abetting, and was a principal in the murder.
I now proceed, Gentlemen, to the consideration of the testimony of Mr. Colman. Although this evidence bears on every material part of the cause, I have purposely avoided every comment on it till the present moment, when I have done with the other evidence in the case. As to the admission of this evidence, there has been a great struggle, and its importance demanded it. The general rule of law is, that confessions are to be received as evidence. They are entitled to great or to little consideration, according to the circumstances under which they are made. Voluntary, deliberate confessions are the most important and satisfactory evidence, but confessions hastily made, or improperly obtained, are entitled to little or no consideration. It is always to be inquired, whether they were purely voluntary, or were made under any undue influence of hope or fear; for, in general, if any influence were exerted on the mind of the person confessing, such confessions are not to be submitted to a jury.
Who is Mr. Colman? He is an intelligent, accurate, and cautious witness; a gentleman of high and well-known character, and of unquestionable veracity; as a clergyman, highly respectable; as a man, of fair name and fame.
Why was Mr. Colman with the prisoner? Joseph J. Knapp was his parishioner; he was the head of a family, and had been married by Mr. Colman. The interests of that family were dear to him. He felt for their afflictions, and was anxious to alleviate their sufferings. He went from the purest and best of motives to visit Joseph Knapp. He came to save, not to destroy; to rescue, not to take away life. In this family he thought there might be a chance to save one. It is a misconstruction of Mr. Colman’s motives, at once the most strange and the most uncharitable, a perversion of all just views of his conduct and intentions the most unaccountable, to represent him as acting, on this occasion, in hostility to any one, or as desirous of injuring or endangering any one. He has stated his own motives, and his own conduct, in a manner to command universal belief and universal respect. For intelligence, for consistency, for accuracy, for caution, for candor, never did witness acquit himself better, or stand fairer. In all that he did as a man, and all he has said as a witness, he has shown himself worthy of entire regard.
Now, Gentlemen, very important confessions made by the prisoner are sworn to by Mr. Colman. They were made in the prisoner’s cell, where Mr. Colman had gone with the prisoner’s brother, N. Phippen Knapp. Whatever conversation took place was in the presence of N.P. Knapp. Now, on the part of the prisoner, two things are asserted; first, that such inducements were suggested to the prisoner, in this interview, that no confessions made by him ought to be received; second, that, in point of fact, he made no such confessions as Mr. Colman testifies to, nor, indeed, any confessions at all. These two propositions are attempted to be supported by the testimony of N.P. Knapp. These two witnesses, Mr. Colman and N.P. Knapp, differ entirely. There is no possibility of reconciling them. No charity can cover both. One or the other has sworn falsely. If N.P. Knapp be believed, Mr. Colman’s testimony must be wholly disregarded. It is, then, a question of credit, a question of belief between the two witnesses. As you decide between these, so you will decide on all this part of the case.
Mr. Colman has given you a plain narrative, a consistent account, and has uniformly stated the same things. He is not contradicted, except by the testimony of Phippen Knapp. He is influenced, as far as we can see, by no bias, or prejudice, any more than other men, except so far as his character is now at stake. He has feelings on this point, doubtless, and ought to have. If what he has stated be not true, I cannot see any ground for his escape. If he be a true man, he must have heard what he testifies. No treachery of memory brings to memory things that never took place. There is no reconciling his evidence with good intention, if the facts in it are not as he states them. He is on trial as to his veracity.
The relation in which the other witness stands deserves your careful consideration. He is a member of the family. He has the lives of two brothers depending, as he may think, on the effect of his evidence; depending on every word he speaks. I hope he has not another responsibility resting upon him. By the advice of a friend, and that friend Mr. Colman, J. Knapp made a full and free confession, and obtained a promise of pardon. He has since, as you know, probably by the advice of other friends, retracted that confession, and rejected the offered pardon. Events will show who of these friends and advisers advised him best, and befriended him most. In the mean time, if this brother, the witness, be one of these advisers, and advised the retraction, he has, most emphatically, the lives of his brothers resting upon his evidence and upon his conduct. Compare the situation of these two witnesses. Do you not see mighty motive enough on the one side, and want of all motive on the other? I would gladly find an apology for that witness, in his agonized feelings, in his distressed situation; in the agitation of that hour, or of this. I would gladly impute it to error, or to want of recollection, to confusion of mind, or disturbance of feeling. I would gladly impute to any pardonable source that which cannot be reconciled to facts and to truth; but, even in a case calling for so much sympathy, justice must yet prevail, and we must come to the conclusion, however reluctantly, which that demands from us.
It is said, Phippen Knapp was probably correct, because he knew he should probably be called as a witness. Witness to what? When he says there was no confession, what could he expect to bear witness of? But I do not put it on the ground that he did not hear; I am compelled to put it on the other ground, that he did hear, and does not now truly tell what he heard.
If Mr. Colman were out of the case, there are other reasons why the story of Phippen Knapp should not be believed. It has in it inherent improbabilities. It is unnatural, and inconsistent with the accompanying circumstances. He tells you that they went “to the cell of Frank, to see if he had any objection to taking a trial, and suffering his brother to accept the offer of pardon”; in other words, to obtain Frank’s consent to Joseph’s making a confession; and in case this consent was not obtained, that the pardon would be offered to Frank. Did they bandy about the chance of life, between these two, in this way? Did Mr. Colman, after having given this pledge to Joseph, and after having received a disclosure from Joseph, go to the cell of Frank for such a purpose as this? It is impossible; it cannot be so.
Again, we know that Mr. Colman found the club the next day; that he went directly to the place of deposit, and found it at the first attempt, exactly where he says he had been informed it was. Now Phippen Knapp says, that Frank had stated nothing respecting the club; that it was not mentioned in that conversation. He says, also, that he was present in the cell of Joseph all the time that Mr. Colman was there; that he believes he heard all that was said in Joseph’s cell; and that he did not himself know where the club was, and never had known where it was, until he heard it stated in court. Now it is certain that Mr. Colman says he did not learn the particular place of deposit of the club from Joseph; that he only learned from him that it was deposited under the steps of the Howard Street meeting-house, without defining the particular steps. It is certain, also, that he had more knowledge of the position of the club than this; else how could he have placed his hand on it so readily? and where else could he have obtained this knowledge, except from Frank?
Here Mr. Dexter said that Mr. Colman had had other interviews with Joseph, and might have derived the information from him at previous visits. Mr. Webster replied, that Mr. Colman had testified that he learned nothing in relation to the club until this visit. Mr. Dexter denied there being any such testimony. Mr. Colman’s evidence was read, from the notes of the judges, and several other persons, and Mr. Webster then proceeded.
My point is to show that Phippen Knapp’s story is not true, is not consistent with itself; that, taking it for granted, as he says, that he heard all that was said to Mr. Colman in both cells, by Joseph and by Frank; and that Joseph did not state particularly where the club was deposited; and that he knew as much about the place of deposit of the club as Mr. Colman knew; why, then Mr. Colman must either have been miraculously informed respecting the club, or Phippen Knapp has not told you the whole truth. There is no reconciling this, without supposing that Mr. Colman has misrepresented what took place in Joseph’s cell, as well as what took place in Frank’s cell.
Again, Phippen Knapp is directly contradicted by Mr. Wheatland. Mr. Wheatland tells the same story, as coming from Phippen Knapp, that Colman now tells. Here there are two against one. Phippen Knapp says that Frank made no confessions, and that he said he had none to make. In this he is contradicted by Wheatland. He, Phippen Knapp, told Wheatland, that Mr. Colman did ask Frank some questions, and that Frank answered them. He told him also what these answers were. Wheatland does not recollect the questions or answers, but recollects his reply; which was, “Is not this _premature_? I think this answer is sufficient to make Frank a principal.” Here Phippen Knapp opposes himself to Wheatland, as well as to Mr. Colman. Do you believe Phippen Knapp against these two respectable witnesses, or them against him?
Is not Mr. Colman’s testimony credible, natural, and proper? To judge of this, you must go back to that scene.
The murder had been committed; the two Knapps were now arrested; four persons were already in jail supposed to be concerned in it, the Crowninshields, and Selman, and Chase. Another person at the Eastward was supposed to be in the plot; it was important to learn the facts. To do this, some one of those suspected must be admitted to turn state’s witness. The contest was, Who should have this privilege? It was understood that it was about to be offered to Palmer, then in Maine; there was no good reason why he should have the preference. Mr. Colman felt interested for the family of the Knapps, and particularly for Joseph. He was a young man who had hitherto maintained a fair standing in society; he was a husband. Mr. Colman was particularly intimate with his family. With these views he went to the prison. He believed that he might safely converse with the prisoner, because he thought confessions made to a clergyman were sacred, and that he could not be called upon to disclose them. He went, the first time, in the morning, and was requested to come again. He went again at three o’clock; and was requested to call again at five o’clock. In the mean time he saw the father and Phippen, and they wished he would not go again, because it would be said the prisoners were making confession. He said he had engaged to go again at five o’clock; but would not, if Phippen would excuse him to Joseph. Phippen engaged to do this, and to meet him at his office at five o’clock. Mr. Colman went to the office at the time, and waited; but, as Phippen was not there, he walked down street, and saw him coming from the jail. He met him, and while in conversation near the church, he saw Mrs. Beckford and Mrs. Knapp going in a chaise towards the jail. He hastened to meet them, as he thought it not proper for them to go in at that time. While conversing with them near the jail, he received two distinct messages from Joseph, that he wished to see him. He thought it proper to go; and accordingly went to Joseph’s cell, and it was while there that the disclosures were made. Before Joseph had finished his statement, Phippen came to the door; he was soon after admitted. A short interval ensued, and they went together to the cell of Frank. Mr. Colman went in by invitation of Phippen; he had come directly from the cell of Joseph, where he had for the first time learned the incidents of the tragedy. He was incredulous as to some of the facts which he had learned, they were so different from his previous impressions. He was desirous of knowing whether he could place confidence in what Joseph had told him. He, therefore, put the questions to Frank, as he has testified before you; in answer to which Frank Knapp informed him,–
1. “That the murder took place between ten and eleven o’clock.”
2. “That Richard Crowninshield was alone in the house.”
3. “That he, Frank Knapp, went home afterwards.”
4. “That the club was deposited under the steps of the Howard Street meeting-house, and under the part nearest the burying-ground, in a rat hole.”
5. “That the dagger or daggers had been worked up at the factory.”
It is said that these five answers just fit the case; that they are just what was wanted, and neither more nor less. True, they are; but the reason is, because truth always fits. Truth is always congruous and agrees with itself: every truth in the universe agrees with every other truth in the universe, whereas falsehoods not only disagree with truths, but usually quarrel among themselves. Surely Mr. Colman is influenced by no bias, no prejudice; he has no feelings to warp him, except, now that he is contradicted, he may feel an interest to be believed.
If you believe Mr. Colman, then the evidence is fairly in the case.
I shall now proceed on the ground that you do believe Mr. Colman.
When told that Joseph had determined to confess, the defendant said, “It is hard, or unfair, that Joseph should have the benefit of confessing, since the thing was done for his benefit.” What thing was done for his benefit? Does not this carry an implication of the guilt of the defendant? Does it not show that he had a knowledge of the object and history of the murder?
The defendant said, “I told Joseph, when he proposed it, that it was a silly business, and would get us into trouble.” He knew, then, what this business was; he knew that Joseph proposed it, and that he agreed to it, else he could not get _us_ into trouble; he understood its bearing and its consequences. Thus much was said, under circumstances that make it clearly evidence against him, before there is any pretence of an inducement held out. And does not this prove him to have had a knowledge of the conspiracy?
He knew the daggers had been destroyed, and he knew who committed the murder. How could he have innocently known these facts? Why, if by Richard’s story, this shows him guilty of a knowledge of the murder, and of the conspiracy. More than all, he knew when the deed was done, and that he went home afterwards. This shows his participation in that deed. “Went home afterwards”! Home, from what scene? home, from what fact? home, from what transaction? home, from what place? This confirms the supposition that the prisoner was in Brown Street for the purposes ascribed to him. These questions were directly put, and directly answered. He does not intimate that he received the information from another. Now, if he knows the time, and went home afterwards, and does not excuse himself, is not this an admission that he had a hand in this murder? Already proved to be a conspirator in the murder, he now confesses that he knew who did it, at what time it was done, that he was himself out of his own house at the time, and went home afterwards. Is not this conclusive, if not explained? Then comes the club. He told where it was. This is like possession of stolen goods. He is charged with the guilty knowledge of this concealment. He must show, not say, how he came by this knowledge. If a man be found with stolen goods, he must prove how he came by them. The place of deposit of the club was premeditated and selected, and he knew where it was.
Joseph Knapp was an accessory, and an accessory only; he knew only what was told him. But the prisoner knew the particular spot in which the club might be found. This shows his knowledge something more than that of an accessory. This presumption must be rebutted by evidence, or it stands strong against him. He has too much knowledge of this transaction to have come innocently by it. It must stand against him until he explains it.
This testimony of Mr. Colman is represented as new matter, and therefore an attempt has been made to excite a prejudice against it. It is not so. How little is there in it, after all, that did not appear from other sources? It is mainly confirmatory. Compare what you learn from this confession with what you before knew.
As to its being proposed by Joseph, was not that known?
As to Richard’s being alone in the house, was not that known?
As to the daggers, was not that known?
As to the time of the murder, was not that known?
As to his being out that night, was not that known?
As to his returning afterwards, was not that known?
As to the club, was not that known?
So this information confirms what was known before, and fully confirms it.
One word as to the interview between Mr. Colman and Phippen Knapp on the turnpike. It is said that Mr. Colman’s conduct in this matter is inconsistent with his testimony. There does not appear to me to be any inconsistency. He tells you that his object was to save Joseph, and to hurt no one, and least of all the prisoner at the bar. He had probably told Mr. White the substance of what he heard at the prison. He had probably told him that Frank confirmed what Joseph had confessed. He was unwilling to be the instrument of harm to Frank. He therefore, at the request of Phippen Knapp, wrote a note to Mr. White, requesting him to consider Joseph as authority for the information he had received. He tells you that this is the only thing he has to regret, as it may seem to be an evasion, as he doubts whether it was entirely correct. If it was an evasion, if it was a deviation, if it was an error, it was an error of mercy, an error of kindness,–an error that proves he had no hostility to the prisoner at the bar. It does not in the least vary his testimony, or affect its correctness. Gentlemen, I look on the evidence of Mr. Colman as highly important; not as bringing into the cause new facts, but as confirming, in a very satisfactory manner, other evidence. It is incredible that he can be false, and that he is seeking the prisoner’s life through false swearing. If he is true, it is incredible that the prisoner can be innocent.
Gentlemen, I have gone through with the evidence in this case, and have endeavored to state it plainly and fairly before you. I think there are conclusions to be drawn from it, the accuracy of which you cannot doubt. I think you cannot doubt that there was a conspiracy formed for the purpose of committing this murder, and who the conspirators were:
That you cannot doubt that the Crowninshields and the Knapps were the parties in this conspiracy:
That you cannot doubt that the prisoner at the bar knew that the murder was to be done on the night of the 6th of April:
That you cannot doubt that the murderers of Captain White were the suspicious persons seen in and about Brown Street on that night:
That you cannot doubt that Richard Crowninshield was the perpetrator of that crime:
That you cannot doubt that the prisoner at the bar was in Brown Street on that night.
If there, then it must be by agreement, to countenance, to aid the perpetrator. And if so, then he is guilty as PRINCIPAL.
Gentlemen, your whole concern should be to do your duty, and leave consequences to take care of themselves. You will receive the law from the court. Your verdict, it is true, may endanger the prisoner’s life, but then it is to save other lives. If the prisoner’s guilt has been shown and proved beyond all reasonable doubt, you will convict him. If such reasonable doubts of guilt still remain, you will acquit him. You are the judges of the whole case. You owe a duty to the public, as well as to the prisoner at the bar. You cannot presume to be wiser than the law. Your duty is a plain, straightforward one. Doubtless we would all judge him in mercy. Towards him, as an individual, the law inculcates no hostility; but towards him, if proved to be a murderer, the law, and the oaths you have taken, and public justice, demand that you do your duty.
With consciences satisfied with the discharge of duty, no consequences can harm you. There is no evil that we cannot either face or fly from, but the consciousness of duty disregarded. A sense of duty pursues us ever. It is omnipresent, like the Deity. If we take to ourselves the wings of the morning, and dwell in the uttermost parts of the sea, duty performed, or duty violated, is still with us, for our happiness or our misery. If we say the darkness shall cover us, in the darkness as in the light our obligations are yet with us. We cannot escape their power, nor fly from their presence. They are with us in this life, will be with us at its close; and in that scene of inconceivable solemnity, which lies yet farther onward, we shall still find ourselves surrounded by the consciousness of duty, to pain us wherever it has been violated, and to console us so far as God may have given us grace to perform it.
[Footnote 1: Chief Justice Parker.]
[Footnote 2: This seems to have been actually the case as regards J.F. Knapp.]
[Footnote 3: And yet this argument, so absurd in Mr. Webster’s opinion, was based on the exact fact.]
[Footnote 4: He did not.]
[Footnote 5: 4 Hawk. 201, Lib. 4, ch. 29, sec. 8.]
THE REPLY TO HAYNE.
SECOND SPEECH ON “FOOT’S RESOLUTION,” DELIVERED IN THE SENATE OF THE UNITED STATES, ON THE 26TH AND 27TH OF JANUARY, 1830.
[Mr. Webster having completed on January 20th his first speech on Foot’s resolution, Mr. Benton spoke in reply, on the 20th and 21st of January, 1830. Mr. Hayne of South Carolina followed on the same side, but, after some time, gave way for a motion for adjournment. On Monday, the 25th, Mr. Hayne resumed, and concluded his argument. Mr. Webster immediately rose in reply, but yielded the floor for a motion for adjournment.
The next day (26th January, 1830) Mr. Webster took the floor and delivered the following speech, which has given such great celebrity to the debate. The circumstances connected with this remarkable effort of parliamentary eloquence are vividly set forth in Mr. Everett’s Memoir, prefixed to the first volume of Mr. Webster’s Works.]
Mr. President,–When the mariner has been tossed for many days in thick weather, and on an unknown sea, he naturally avails himself of the first pause in the storm, the earliest glance of the sun, to take his latitude, and ascertain how far the elements have driven him from his true course. Let us imitate this prudence, and, before we float farther on the waves of this debate, refer to the point from which we departed, that we may at least be able to conjecture where we now are. I ask for the reading of the resolution before the Senate.
The Secretary read the resolution, as follows:–
“_Resolved_, That the Committee on Public Lands be instructed to inquire and report the quantity of public lands remaining unsold within each State and Territory, and whether it be expedient to limit for a certain period the sales of the public lands to such lands only as have heretofore been offered for sale, and are now subject to entry at the minimum price. And, also, whether the office of Surveyor-General, and some of the land offices, may not be abolished without detriment to the public interest; or whether it be expedient to adopt measures to hasten the sales and extend more rapidly the surveys of the public lands.”
We have thus heard, Sir, what the resolution is which is actually before us for consideration; and it will readily occur to every one, that it is almost the only subject about which something has not been said in the speech, running through two days, by which the Senate has been entertained by the gentleman from South Carolina. Every topic in the wide range of our public affairs, whether past or present,–every thing, general or local, whether belonging to national politics or party politics,–seems to have attracted more or less of the honorable member’s attention, save only the resolution before the Senate. He has spoken of every thing but the public lands; they have escaped his notice. To that subject, in all his excursions, he has not paid even the cold respect of a passing glance.
When this debate, Sir, was to be resumed, on Thursday morning, it so happened that it would have been convenient for me to be elsewhere. The honorable member, however, did not incline to put off the discussion to another day. He had a shot, he said, to return, and he wished to discharge it. That shot, Sir, which he thus kindly informed us was coming, that we might stand out of the way, or prepare ourselves to fall by it and die with decency, has now been received. Under all advantages, and with expectation awakened by the tone which preceded it, it has been discharged, and has spent its force. It may become me to say no more of its effect, than that, if nobody is found, after all, either killed or wounded, it is not the first time, in the history of human affairs, that the vigor and success of the war have not quite come up to the lofty and sounding phrase of the manifesto.
The gentleman, Sir, in declining to postpone the debate, told the Senate, with the emphasis of his hand upon his heart, that there was something rankling _here_, which he wished to relieve. [Mr. Hayne rose, and disclaimed having used the word _rankling_.] It would not, Mr. President, be safe for the honorable member to appeal to those around him, upon the question whether he did in fact make use of that word. But he may have been unconscious of it. At any rate, it is enough that he disclaims it. But still, with or without the use of that particular word, he had yet something _here_, he said, of which he wished to rid himself by an immediate reply. In this respect, Sir, I have a great advantage over the honorable gentleman. There is nothing _here_, Sir, which gives me the slightest uneasiness; neither fear, nor anger, nor that which is sometimes more troublesome than either, the consciousness of having been in the wrong. There is nothing, either originating _here_, or now received _here_ by the gentleman’s shot. Nothing originating here, for I had not the slightest feeling of unkindness towards the honorable member. Some passages, it is true, had occurred since our acquaintance in this body, which I could have wished might have been otherwise; but I had used philosophy and forgotten them. I paid the honorable member the attention of listening with respect to his first speech; and when he sat down, though surprised, and I must even say astonished, at some of his opinions, nothing was farther from my intention than to commence any personal warfare. Through the whole of the few remarks I made in answer, I avoided, studiously and carefully, every thing which I thought possible to be construed into disrespect. And, Sir, while there is thus nothing originating _here_ which I have wished at any time, or now wish, to discharge, I must repeat, also, that nothing has been received _here_ which _rankles_, or in any way gives me annoyance. I will not accuse the honorable member of violating the rules of civilized war; I will not say, that he poisoned his arrows. But whether his shafts were, or were not, dipped in that which would have caused rankling if they had reached their destination, there was not, as it happened, quite strength enough in the bow to bring them to their mark. If he wishes now to gather up those shafts, he must look for them elsewhere; they will not be found fixed and quivering in the object at which they were aimed.
The honorable member complained that I had slept on his speech. I must have slept on it, or not slept at all. The moment the honorable member sat down, his friend from Missouri rose, and, with much honeyed commendation of the speech, suggested that the impressions which it had produced were too charming and delightful to be disturbed by other sentiments or other sounds, and proposed that the Senate should adjourn. Would it have been quite amiable in me, Sir, to interrupt this excellent good feeling? Must I not have been absolutely malicious, if I could have thrust myself forward, to destroy sensations thus pleasing? Was it not much better and kinder, both to sleep upon them myself, and to allow others also the pleasure of sleeping upon them? But if it be meant, by sleeping upon his speech, that I took time to prepare a reply to it, it is quite a mistake. Owing to other engagements, I could not employ even the interval between the adjournment of the Senate and its meeting the next morning, in attention to the subject of this debate. Nevertheless, Sir, the mere matter of fact is undoubtedly true. I did sleep on the gentleman’s speech, and slept soundly. And I slept equally well on his speech of yesterday, to which I am now replying. It is quite possible that in this respect, also, I possess some advantage over the honorable member, attributable, doubtless, to a cooler temperament on my part; for, in truth, I slept upon his speeches remarkably well.
But the gentleman inquires why _he_ was made the object of such a reply. Why was _he_ singled out? If an attack has been made on the East, he, he assures us, did not begin it; it was made by the gentleman from Missouri. Sir, I answered the gentleman’s speech because I happened to hear it; and because, also, I chose to give an answer to that speech, which, if unanswered, I thought most likely to produce injurious impressions. I did not stop to inquire who was the original drawer of the bill. I found a responsible indorser before me, and it was my purpose to hold him liable, and to bring him to his just responsibility, without delay. But, Sir, this interrogatory of the honorable member was only introductory to another. He proceeded to ask me whether I had turned upon him, in this debate, from the consciousness that I should find an overmatch, if I ventured on a contest with his friend from Missouri. If, Sir, the honorable member, _modestiae gratia_, had chosen thus to defer to his friend, and to pay him a compliment, without intentional disparagement to others, it would have been quite according to the friendly courtesies of debate, and not at all ungrateful to my own feelings. I am not one of those, Sir, who esteem any tribute of regard, whether light and occasional, or more serious and deliberate, which may be bestowed on others, as so much unjustly withholden from themselves. But the tone and manner of the gentleman’s question forbid me thus to interpret it. I am not at liberty to consider it as nothing more than a civility to his friend. It had an air of taunt and disparagement, something of the loftiness of asserted superiority, which does not allow me to pass it over without notice. It was put as a question for me to answer, and so put as if it were difficult for me to answer, whether I deemed the member from Missouri an overmatch for myself in debate here. It seems to me, Sir, that this is extraordinary language, and an extraordinary tone, for the discussions of this body.
Matches and overmatches! Those terms are more applicable elsewhere than here, and fitter for other assemblies than this. Sir, the gentleman seems to forget where and what we are. This is a Senate, a Senate of equals, of men of individual honor and personal character, and of absolute independence. We know no masters, we acknowledge no dictators. This is a hall for mutual consultation and discussion; not an arena for the exhibition of champions. I offer myself, Sir, as a match for no man; I throw the challenge of debate at no man’s feet. But then, Sir, since the honorable member has put the question in a manner that calls for an answer, I will give him an answer; and I tell him, that, holding myself to be the humblest of the members here, I yet know nothing in the arm of his friend from Missouri, either alone or when aided by the arm of _his_ friend from South Carolina, that need deter even me from espousing whatever opinions I may choose to espouse, from debating whenever I may choose to debate, or from speaking whatever I may see fit to say, on the floor of the Senate. Sir, when uttered as matter of commendation or compliment, I should dissent from nothing which the honorable member might say of his friend. Still less do I put forth any pretensions of my own. But when put to me as matter of taunt, I throw it back, and say to the gentleman, that he could possibly say nothing less likely than such a comparison to wound my pride of personal character. The anger of its tone rescued the remark from intentional irony, which otherwise, probably, would have been its general acceptation. But, Sir, if it be imagined that by this mutual quotation and commendation; if it be supposed that, by casting the characters of the drama assigning to each his part, to one the attack, to another the cry of onset; or if it be thought that, by a loud and empty vaunt of anticipated victory, any laurels are to be won here; if it be imagined, especially, that any or all these things will shake any purpose of mine,–I can tell the honorable member, once for all, that he is greatly mistaken, and that he is dealing with one of whose temper and character he has yet much to learn. Sir, I shall not allow myself, on this occasion, I hope on no occasion, to be betrayed into any loss of temper; but if provoked, as I trust I never shall be, into crimination and recrimination, the honorable member may perhaps find, that, in that contest, there will be blows to take as well as blows to give; that others can state comparisons as significant, at least, as his own, and that his impunity may possibly demand of him whatever powers of taunt and sarcasm he may possess. I commend him to a prudent husbandry of his resources.
But, Sir, the Coalition! The Coalition! Ay, “the murdered Coalition!” The gentleman asks, if I were led or frighted into this debate by the spectre of the Coalition. “Was it the ghost of the murdered Coalition,” he exclaims, “which haunted the member from Massachusetts; and which, like the ghost of Banquo, would never down?” “The murdered Coalition!” Sir, this charge of a coalition, in reference to the late administration, is not original with the honorable member. It did not spring up in the Senate. Whether as a fact, as an argument, or as an embellishment, it is all borrowed. He adopts it, indeed, from a very low origin, and a still lower present condition. It is one of the thousand calumnies with which the press teemed, during an excited political canvass. It was a charge, of which there was not only no proof or probability, but which was in itself wholly impossible to be true. No man of common information ever believed a syllable of it. Yet it was of that class of falsehoods, which, by continued repetition, through all the organs of detraction and abuse, are capable of misleading those who are already far misled, and of further fanning passion already kindling into flame. Doubtless it served in its day, and in greater or less degree, the end designed by it. Having done that, it has sunk into the general mass of stale and loathed calumnies. It is the very cast-off slough of a polluted and shameless press. Incapable of further mischief, it lies in the sewer, lifeless and despised. It is not now, Sir, in the power of the honorable member to give it dignity or decency, by attempting to elevate it, and to introduce it into the Senate. He cannot change it from what it is, an object of general disgust and scorn. On the contrary, the contact, if he choose to touch it, is more likely to drag him down, down, to the place where it lies itself.
But, Sir, the honorable member was not, for other reasons, entirely happy in his allusion to the story of Banquo’s murder and Banquo’s ghost. It was not, I think, the friends, but the enemies of the murdered Banquo, at whose bidding his spirit would not _down_. The honorable gentleman is fresh in his reading of the English classics, and can put me right if I am wrong: but, according to my poor recollection, it was at those who had begun with caresses and ended with foul and treacherous murder that the gory locks were shaken. The ghost of Banquo, like that of Hamlet, was an honest ghost. It disturbed no innocent man. It knew where its appearance would strike terror, and who would cry out, A ghost! It made itself visible in the right quarter, and compelled the guilty and the conscience-smitten, and none others, to start, with,
“Pr’ythee, see there! behold!–look! lo, If I stand here, I saw him!”
THEIR eyeballs were seared (was it not so, Sir?) who had thought to shield themselves by concealing their own hand, and laying the imputation of the crime on a low and hireling agency in wickedness; who had vainly attempted to stifle the workings of their own coward consciences by ejaculating through white lips and chattering teeth, “Thou canst not say I did it!” I have misread the great poet if those who had no way partaken in the deed of the death, either found that they were, or _feared that they should be_, pushed from their stools by the ghost of the slain, or exclaimed to a spectre created by their own fears and their own remorse, “Avaunt! and quit our sight!”
There is another particular, Sir, in which the honorable member’s quick perception of resemblances might, I should think, have seen something in the story of Banquo, making it not altogether a subject of the most pleasant contemplation. Those who murdered Banquo, what did they win by it? Substantial good? Permanent power? Or disappointment, rather, and sore mortification,–dust and ashes, the common fate of vaulting ambition overleaping itself? Did not even-handed justice erelong commend the poisoned chalice to their own lips? Did they not soon find that for another they had “filed their mind”? that their ambition, though apparently for the moment successful, had but put a barren sceptre in their grasp? Ay, Sir,
“a barren sceptre in their gripe, _Thence to be wrenched with an unlineal hand, No son of theirs succeeding_.”
Sir, I need pursue the allusion no farther. I leave the honorable gentleman to run it out at his leisure, and to derive from it all the gratification it is calculated to administer. If he finds himself pleased with the associations, and prepared to be quite satisfied, though the parallel should be entirely completed, I had almost said, I am satisfied also; but that I shall think of. Yes, Sir, I will think of that.
In the course of my observations the other day, Mr. President, I paid a passing tribute of respect to a very worthy man, Mr. Dane of Massachusetts. It so happened that he drew the Ordinance of 1787, for the government of the Northwestern Territory. A man of so much ability, and so little pretence; of so great a capacity to do good, and so unmixed a disposition to do it for its own sake; a gentleman who had acted an important part, forty years ago, in a measure the influence of which is still deeply felt in the very matter which was the subject of debate,–might, I thought, receive from me a commendatory recognition. But the honorable member was inclined to be facetious on the subject. He was rather disposed to make it matter of ridicule, that I had introduced into the debate the name of one Nathan Dane, of whom he assures us he had never before heard. Sir, if the honorable member had never before heard of Mr. Dane, I am sorry for it. It shows him less acquainted with the public men of the country than I had supposed. Let me tell him, however, that a sneer from him at the mention of the name of Mr. Dane is in bad taste. It may well be a high mark of ambition, Sir, either with the honorable gentleman or myself, to accomplish as much to make our names known to advantage, and remembered with gratitude, as Mr. Dane has accomplished. But the truth is, Sir, I suspect, that Mr. Dane lives a little too far north. He is of Massachusetts, and too near the north star to be reached by the honorable gentleman’s telescope. If his sphere had happened to range south of Mason and Dixon’s line, he might, probably, have come within the scope of his vision.
I spoke, Sir, of the Ordinance of 1787, which prohibits slavery, in all future times, northwest of the Ohio, as a measure of great wisdom and foresight, and one which had been attended with highly beneficial and permanent consequences. I supposed that, on this point, no two gentlemen in the Senate could entertain different opinions. But the simple expression of this sentiment has led the gentleman, not only into a labored defence of slavery, in the abstract, and on principle, but also into a warm accusation against me, as having attacked the system of domestic slavery now existing in the Southern States. For all this, there was not the slightest foundation, in any thing said or intimated by me. I did not utter a single word which any ingenuity could torture into an attack on the slavery of the South. I said, only, that it was highly wise and useful, in legislating for the Northwestern country while it was yet a wilderness, to prohibit the introduction of slaves; and I added, that I presumed there was no reflecting and intelligent person, in the neighboring State of Kentucky, who would doubt that, if the same prohibition had been extended, at the same early period, over that commonwealth, her strength and population would, at this day, have been far greater than they are. If these opinions be thought doubtful, they are nevertheless, I trust, neither extraordinary nor disrespectful. They attack nobody and menace nobody. And yet, Sir, the gentleman’s optics have discovered, even in the mere expression of this sentiment, what he calls the very spirit of the Missouri question! He represents me as making an onset on the whole South, and manifesting a spirit which would interfere with, and disturb, their domestic condition!
Sir, this injustice no otherwise surprises me, than as it is committed here, and committed without the slightest pretence of ground for it. I say it only surprises me as being done here; for I know full well, that it is, and has been, the settled policy of some persons in the South, for years, to represent the people of the North as disposed to interfere with them in their own exclusive and peculiar concerns. This is a delicate and sensitive point in Southern feeling; and of late years it has always been touched, and generally with effect, whenever the object has been to unite the whole South against Northern men or Northern measures. This feeling, always carefully kept alive, and maintained at too intense a heat to admit discrimination or reflection, is a lever of great power in our political machine. It moves vast bodies, and gives to them one and the same direction. But it is without adequate cause, and the suspicion which exists is wholly groundless. There is not, and never has been, a disposition in the North to interfere with these interests of the South. Such interference has never been supposed to be within the power of government; nor has it been in any way attempted. The slavery of the South has always been regarded as a matter of domestic policy, left with the States themselves, and with which the Federal government had nothing to do. Certainly, Sir, I am, and ever have been, of that opinion. The gentleman, indeed, argues that slavery, in the abstract, is no evil. Most assuredly I need not say I differ with him, altogether and most widely, on that point. I regard domestic slavery as one of the greatest evils, both moral and political. But whether it be a malady, and whether it be curable, and if so, by what means; or, on the other hand, whether it be the _vulnus immedicabile_ of the social system, I leave it to those whose right and duty it is to inquire and to decide. And this I believe, Sir, is, and uniformly has been, the sentiment of the North. Let us look a little at the history of this matter.
When the present Constitution was submitted for the ratification of the people, there were those who imagined that the powers of the government which it proposed to establish might, in some possible mode, be exerted in measures tending to the abolition of slavery. This suggestion would of course attract much attention in the Southern conventions. In that of Virginia, Governor Randolph said:–
“I hope there is none here, who, considering the subject in the calm light of philosophy, will make an objection dishonorable to Virginia; that, at the moment they are securing the rights of their citizens, an objection is started, that there is a spark of hope that those unfortunate men now held in bondage may, by the operation of the general government, be made free.”
At the very first Congress, petitions on the subject were presented, if I mistake not, from different States. The Pennsylvania society for promoting the abolition of slavery took a lead, and laid before Congress a memorial, praying Congress to promote the abolition by such powers as it possessed. This memorial was referred, in the House of Representatives, to a select committee, consisting of Mr. Foster of New Hampshire, Mr. Gerry of Massachusetts, Mr. Huntington of Connecticut, Mr. Lawrence of New York, Mr. Sinnickson of New Jersey, Mr. Hartley of Pennsylvania, and Mr. Parker of Virginia,–all of them, Sir, as you will observe, Northern men but the last. This committee made a report, which was referred to a committee of the whole House, and there considered and discussed for several days; and being amended, although without material alteration, it was made to express three distinct propositions, on the subject of slavery and the slave-trade. First, in the words of the Constitution, that Congress could not, prior to the year 1808, prohibit the migration or importation of such persons as any of the States then existing should think proper to admit; and, secondly, that Congress had authority to restrain the citizens of the United States from carrying on the African slave-trade, for the purpose of supplying foreign countries. On this proposition, our early laws against those who engage in that traffic are founded. The third proposition, and that which bears on the present question, was expressed in the following terms:–
“_Resolved_, That Congress have no authority to interfere in the emancipation of slaves, or in the treatment of them in any of the States; it remaining with the several States alone to provide rules and regulations therein which humanity and true policy may require.”
This resolution received the sanction of the House of Representatives so early as March, 1790. And now, Sir, the honorable member will allow me to remind him, that not only were the select committee who reported the resolution, with a single exception, all Northern men, but also that, of the members then composing the House of Representatives, a large majority, I believe nearly two thirds, were Northern men also.
The House agreed to insert these resolutions in its journal; and from that day to this it has never been maintained or contended at the North, that Congress had any authority to regulate or interfere with the condition of slaves in the several States. No Northern gentleman, to my knowledge, has moved any such question in either House of Congress.
The fears of the South, whatever fears they might have entertained, were allayed and quieted by this early decision; and so remained till they were excited afresh, without cause, but for collateral and indirect purposes. When it became necessary, or was thought so, by some political persons, to find an unvarying ground for the exclusion of Northern men from confidence and from lead in the affairs of the republic, then, and not till then, the cry was raised, and the feeling industriously excited, that the influence of Northern men in the public counsels would endanger the relation of master and slave. For myself, I claim no other merit than that this gross and enormous injustice towards the whole North has not wrought upon me to change my opinions or my political conduct. I hope I am above violating my principles, even under the smart of injury and false imputations. Unjust suspicions and undeserved reproach, whatever pain I may experience from them, will not induce me, I trust, to overstep the limits of constitutional duty, or to encroach on the rights of others. The domestic slavery of the Southern States I leave where I find it,–in the hands of their own governments. It is their affair, not mine. Nor do I complain of the peculiar effect which the magnitude of that population has had in the distribution of power under this Federal government. We know, Sir, that the representation of the States in the other house is not equal. We know that great advantage in that respect is enjoyed by the slave-holding States; and we know, too, that the intended equivalent for that advantage, that is to say, the imposition of direct taxes in the same ratio, has become merely nominal, the habit of the government being almost invariably to collect its revenue from other sources and in other modes. Nevertheless, I do not complain; nor would I countenance any movement to alter this arrangement of representation. It is the original bargain, the compact; let it stand; let the advantage of it be fully enjoyed. The Union itself is too full of benefit to be hazarded in propositions for changing its original basis. I go for the Constitution as it is, and for the Union as it is. But I am resolved not to submit in silence to accusations, either against myself individually or against the North, wholly unfounded and unjust,–accusations which impute to us a disposition to evade the constitutional compact, and to extend the power of the government over the internal laws and domestic condition of the States. All such accusations, wherever and whenever made, all insinuations of the existence of any such purposes, I know and feel to be groundless and injurious. And we must confide in Southern gentlemen themselves; we must trust to those whose integrity of heart and magnanimity of feeling will lead them to a desire to maintain and disseminate truth, and who possess the means of its diffusion with the Southern public; we must leave it to them to disabuse that public of its prejudices. But in the mean time, for my own part, I shall continue to act justly, whether those towards whom justice is exercised receive it with candor or with contumely.
Having had occasion to recur to the Ordinance of 1787, in order to defend myself against the inferences which the honorable member has chosen to draw from my former observations on that subject, I am not willing now entirely to take leave of it without another remark. It need hardly be said, that that paper expresses just sentiments on the great subject of civil and religious liberty. Such sentiments were common, and abound in all our state papers of that day. But this Ordinance did that which was not so common, and which is not even now universal; that is, it set forth and declared it to be a high and binding duty of government itself to support schools and advance the means of education, on the plain reason that religion, morality, and knowledge are necessary to good government, and to the happiness of mankind. One observation further. The important provision incorporated into the Constitution of the United States, and into several of those of the States, and recently, as we have seen, adopted into the reformed constitution of Virginia, restraining legislative power in questions of private right, and from impairing the obligation of contracts, is first introduced and established, as far as I am informed, as matter of express written constitutional law, in this Ordinance of 1787. And I must add, also, in regard to the author of the Ordinance, who has not had the happiness to attract the gentleman’s notice heretofore, nor to avoid his sarcasm now, that he was chairman of that select committee of the old Congress, whose report first expressed the strong sense of that body, that the old Confederation was not adequate to the exigencies of the country, and recommended to the States to send delegates to the convention which formed the present Constitution.
An attempt has been made to transfer from the North to the South the honor of this exclusion of slavery from the Northwestern Territory. The journal, without argument or comment, refutes such attempts. The cession by Virginia was made in March, 1784. On the 19th of April following, a committee, consisting of Messrs. Jefferson, Chase, and Howell, reported a plan for a temporary government of the territory, in which was this article: “That, after the year 1800, there shall be neither slavery nor involuntary servitude in any of the said States, otherwise than in punishment of crimes, whereof the party shall have been convicted.” Mr. Spaight of North Carolina moved to strike out this paragraph. The question was put, according to the form then practised, “Shall these words stand as a part of the plan?” New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, and Pennsylvania, seven States, voted in the affirmative; Maryland, Virginia, and South Carolina, in the negative. North Carolina was divided. As the consent of nine States was necessary, the words could not stand, and were struck out accordingly. Mr. Jefferson voted for the clause, but was overruled by his colleagues.
In March of the next year (1785), Mr. King of Massachusetts, seconded by Mr. Ellery of Rhode Island, proposed the formerly rejected article, with this addition: “And that this regulation shall be an article of compact, and remain a fundamental principle of the constitutions between the thirteen original States, and each of the States described in the resolve.” On this clause, which provided the adequate and thorough security, the eight Northern States at that time voted affirmatively, and the four Southern States negatively. The votes of nine States were not yet obtained, and thus the provision was again rejected by the Southern States. The perseverance of the North held out, and two years afterwards the object was attained. It is no derogation from the credit, whatever that may be, of drawing the Ordinance, that its principles had before been prepared and discussed, in the form of resolutions. If one should reason in that way, what would become of the distinguished honor of the author of the Declaration of Independence? There is not a sentiment in that paper which had not been voted and resolved in the assemblies, and other popular bodies in the country, over and over again.
But the honorable member has now found out that this gentleman, Mr. Dane, was a member of the Hartford Convention. However uninformed the honorable member may be of characters and occurrences at the North, it would seem that he has at his elbow, on this occasion, some high-minded and lofty spirit, some magnanimous and true-hearted monitor, possessing the means of local knowledge, and ready to supply the honorable member with every thing, down even to forgotten and moth-eaten two-penny pamphlets, which may be used to the disadvantage of his own country. But as to the Hartford Convention, Sir, allow me to say, that the proceedings of that body seem now to be less read and studied in New England than farther South. They appear to be looked to, not in New England, but elsewhere, for the purpose of seeing how far they may serve as a precedent. But they will not answer the purpose, they are quite too tame. The latitude in which they originated was too cold. Other conventions, of more recent existence, have gone a whole bar’s length beyond it. The learned doctors of Colleton and Abbeville have pushed their commentaries on the Hartford collect so far, that the original text-writers are thrown entirely into the shade. I have nothing to do, Sir, with the Hartford Convention. Its journal, which the gentleman has quoted, I never read. So far as the honorable member may discover in its proceedings a spirit in any degree resembling that which was avowed and justified in those other conventions to which I have alluded, or so far as those proceedings can be shown to be disloyal to the Constitution, or tending to disunion, so far I shall be as ready as any one to bestow on them reprehension and censure.
Having dwelt long on this convention, and other occurrences of that day, in the hope, probably, (which will not be gratified,) that I should leave the course of this debate to follow him at length in those excursions, the honorable member returned, and attempted another object. He referred to a speech of mine in the other house, the same which I had occasion to allude to myself, the other day; and has quoted a passage or two from it, with a bold, though uneasy and laboring, air of confidence, as if he had detected in me an inconsistency. Judging from the gentleman’s manner, a stranger to the course of the debate and to the point in discussion would have imagined, from so triumphant a tone, that the honorable member was about to overwhelm me with a manifest contradiction. Any one who heard him, and who had not heard what I had, in fact, previously said, must have thought me routed and discomfited, as the gentleman had promised. Sir, a breath blows all this triumph away. There is not the slightest difference in the purport of my remarks on the two occasions. What I said here on Wednesday is in exact accordance with the opinion expressed by me in the other house in 1825. Though the gentleman had the metaphysics of Hudibras, though he were able
“to sever and divide
A hair ‘twixt north and northwest side,”
he yet could not insert his metaphysical scissors between the fair reading of my remarks in 1825, and what I said here last week. There is not only no contradiction, no difference, but, in truth, too exact a similarity, both in thought and language, to be entirely in just taste. I had myself quoted the same speech; had recurred to it, and spoke with it open before me; and much of what I said was little more than a repetition from it. In order to make finishing work with this alleged contradiction, permit me to recur to the origin of this debate, and review its course. This seems expedient, and may be done as well now as at any time.
Well, then, its history is this. The honorable member from Connecticut moved a resolution, which constitutes the first branch of that which is now before us; that is to say, a resolution, instructing the committee on public lands to inquire into the expediency of limiting, for a certain period, the sales of the public lands, to such as have heretofore been offered for sale; and whether sundry offices connected with the sales of the lands might not be abolished without detriment to the public service. In the progress of the discussion which arose on this resolution, an honorable member from New Hampshire moved to amend the resolution, so as entirely to reverse its object; that is, to strike it all out, and insert a direction to the committee to inquire into the expediency of adopting measures to hasten the sales, and expend more rapidly the surveys, of the lands.
The honorable member from Maine[1] suggested that both those propositions might well enough go for consideration to the committee; and in this state of the question, the member from South Carolina addressed the Senate in his first speech. He rose, he said, to give us his own free thoughts on the public lands. I saw him rise with pleasure, and listened with expectation, though before he concluded I was filled with surprise. Certainly, I was never more surprised, than to find him following up, to the extent he did, the sentiments and opinions which the gentleman from Missouri had put forth, and which it is known he has long entertained.
I need not repeat at large the general topics of the honorable gentleman’s speech. When he said yesterday that he did not attack the Eastern States, he certainly must have forgotten, not only particular remarks, but the whole drift and tenor of his speech; unless he means by not attacking, that he did not commence hostilities, but that another had preceded him in the attack. He, in the first place, disapproved of the whole course of the government, for forty years, in regard to its disposition of the public lands; and then, turning northward and eastward, and fancying he had found a cause for alleged narrowness and niggardliness in the “accursed policy of the tariff”, to which he represented the people of New England as wedded, he went on for a full hour with remarks, the whole scope of which was to exhibit the results of this policy, in feelings and in measures unfavorable to the West. I thought his opinions unfounded and erroneous, as to the general course of the government, and ventured to reply to them.
The gentleman had remarked on the analogy of other cases, and quoted the conduct of European governments towards their own subjects settling on this continent, as in point, to show that we had been harsh and rigid in selling, when we should have given the public lands to settlers without price. I thought the honorable member had suffered his judgment to be betrayed by a false analogy; that he was struck with an appearance of resemblance where there was no real similitude. I think so still. The first settlers of North America were enterprising spirits, engaged in private adventure, or fleeing from tyranny at home. When arrived here, they were forgotten by the mother country, or remembered only to be oppressed. Carried away again by the appearance of analogy, or struck with the eloquence of the passage, the honorable member yesterday observed, that the conduct of government towards the Western emigrants, or my representation of it, brought to his mind a celebrated speech in the British Parliament. It was, Sir, the speech of Colonel Barre. On the question of the stamp act, or tea tax, I forget which, Colonel Barre had heard a member on the treasury bench argue, that the people of the United States, being British colonists, planted by the maternal care, nourished by the indulgence, and protected by the arms of England, would not grudge their mite to relieve the mother country from the heavy burden under which she groaned. The language of Colonel Barre, in reply to this, was: “They planted by your care? Your oppression planted them in America. They fled from your tyranny, and grew by your neglect of them. So soon as you began to care for them, you showed your care by sending persons to spy out their liberties, misrepresent their character, prey upon them, and eat out their substance.”
And how does the honorable gentleman mean to maintain, that language like this is applicable to the conduct of the government of the United States towards the Western emigrants, or to any representation given by me of that conduct? Were the settlers in the West driven thither by our oppression? Have they flourished only by our neglect of them? Has the government done nothing but prey upon them, and eat out their substance? Sir, this fervid eloquence of the British speaker, just when and where it was uttered, and fit to remain an exercise for the schools, is not a little out of place, when it is brought thence to be applied here to the conduct of our own country towards her own citizens. From America to England, it may be true; from Americans to their own government, it would be strange language. Let us leave it, to be recited and declaimed by our boys against a foreign nation; not introduce it here, to recite and declaim ourselves against our own.
But I come to the point of the alleged contradiction. In my remarks on Wednesday, I contended that we could not give away gratuitously all the public lands; that we held them in trust; that the government had solemnly pledged itself to dispose of them as a common fund for the common benefit, and to sell and settle them as its discretion should dictate. Now, Sir, what contradiction does the gentleman find to this sentiment in the speech of 1825? He quotes me as having then said, that we ought not to hug these lands as a very great treasure. Very well, Sir, supposing me to be accurately reported in that expression, what is the contradiction? I have not now said, that we should hug these lands as a favorite source of pecuniary income. No such thing. It is not my view. What I have said, and what I do say, is, that they are a common fund, to be disposed of for the common benefit, to be sold at low prices for the accommodation of settlers, keeping the object of settling the lands as much in view as that of raising money from them. This I say now, and this I have always said. Is this hugging them as a favorite treasure? Is there no difference between hugging and hoarding this fund, on the one hand, as a great treasure, and, on the other, of disposing of it at low prices, placing the proceeds in the general treasury of the Union? My opinion is, that as much is to be made of the land as fairly and reasonably may be, selling it all the while at such rates as to give the fullest effect to settlement. This is not giving it all away to the States, as the gentleman would propose; nor is it hugging the fund closely and tenaciously, as a favorite treasure; but it is, in my judgment, a just and wise policy, perfectly according with all the various duties which rest on government. So much for my contradiction. And what is it? Where is the ground of the gentleman’s triumph? What inconsistency in word or doctrine has he been able to detect? Sir, if this be a sample of that discomfiture with which the honorable gentleman threatened me, commend me to the word _discomfiture_ for the rest of my life.
But, after all, this is not the point of the debate; and I must now bring the gentleman back to what is the point.
The real question between me and him is, Has the doctrine been advanced at the South or the East, that the population of the West should be retarded, or at least need not be hastened, on account of its effect to drain off the people from the Atlantic States? Is this doctrine, as has been alleged, of Eastern origin? That is the question. Has the gentleman found any thing by which he can make good his accusation? I submit to the Senate, that he has entirely failed; and, as far as this debate has shown, the only person who has advanced such sentiments is a gentleman from South Carolina, and a friend of the honorable member himself. The honorable gentleman has given no answer to this; there is none which can