Digitized by the Internet Archive in 2019 with funding from Duke University Libraries https://archive.org/details/trialofjohnwilliOOwill / .//.*. 75h_ — ‘fPfc ' A^.- /> ■ ' TRIAL OF JOHN WILLIAMS, FRANCIS FREDERICK, JOHN P. ROG, NILS PETERSON, AND XT NATHANIEL WHITE, ON AN INDICTMENT FOR MURDER ON THE HIGH SEAS ; BEFORE THE CIRCUIT COURT OF THE UNITED STATES, HOLDEN FOR THE DISTRICT OF MASSACHUSETTS, AT BOSTON, ON THE 28th OF DEC. 1818. BOSTON • PRINTED BY RTJSSELL AND GARDNER, PROPRIETORS OF THE WORK. 1819 , DISTRICT OF MASSACHUSETTS, to wit , District Clerk’s Office. BE IT REMEMBFRED, That on the thirty-first day of December. A. D. 1818, and of the Forty-third Year of the Independence of the United States of America, RUSSELL and GARDNER, of the said District, have deposited in this Office, the title of a Book, the Rieht whereof they claim as Proprietors, in the words following, to wit:—“ The Trial of John Williams, Francis Frederick, John P. Rog, Nils Peterson, and Nathaniel White, on an Indictment for Mur¬ der on the High Seas ; before the Circuit Court of the United £tate«, bol- den for the District of Massachusetts, at Boston, on the 28th of Dec. 1818.” In conformity to the Act of the Congress of the United States, entitled “ An Act for the Encouragement of Learning, by securing the Copies of Maps, Charts and Books, to the Authors and Proprietors of such Copies, during the times therein mentioned and also to an Act, entitled “ 4n Act, supplemen¬ tary to an Act, entitled, An Act for the Encouragement of Learning, by secur¬ ing the Copies of Maps, Charts and Books, to the Authors and Proprietors of such Copies, during the times therein mentioned ; and extending the benefits thereof to the Arts of Designing, Engraving and Etching Historical, and other Prints.” JOHN W. DAVIS, Clerk of the District of Massachusetts. CIRCUIT COURT OF THE UNITED STATES. MASSACHUSETTS, OCTOBER TERM, 1818, AT BOSTON. PRESENT, Hon. JOSEPH STORY, Associate Justice of the Supreme Court. « JOHN DAVIS, District Judge. THE UNITED STATES vs. JOHN WILLIAMS, JOHN P. ROG, FRANCIS FREDERICK, NILS PETERSON, alias nils pbterson fogelgren, and Nathaniel white, alias NATHANIEL WHITE GLASS. On the 14th day of December, 1818, the prisoners were arraign¬ ed upon an Indictment for the murder of Thomas Baynard, su¬ percargo of the schooner Plattsburgh, whilst on a voyage from Baltimore to Smyrna ; to which Indictment they severally plead¬ ed not guilty. Samuel L. Knapp and Stephen Hooper, Esquires, were assignea by the Court as Counsel for the prisoners ; and this 28th day ot December appointed for their trial. The Court was opened at 11 o’clock A. M. and the prisoners brought in. The Clerk then asked them if they had been iur- nished with a copy of the Indictment and a list of the Jurors two days previous to this ; and whether they would challenge the Jurors by themselves or their Counsel. To this they replied, that they had been furnished with the Indictment and list of Jurors, and that they would challenge by their Counsel. The Clerk then proceeded to empannel the Jury. As they were called, the Counsel for the pris¬ oners inquired of them severally, whether they had been masters of vessels, and being answered in the negative, no challenge was made, and the following gentlemen were sworn :— william farnham, Foreman, * W: ISAAC APPLETON, g- The Clerk then read the Indictment to them as follows :- NATHANIEL BRADLEE. JOSEPH CURTIS, EBENEZER GOODRICH, LUTHER EATON, ISAAC VINTON, CORNELIUS STONE, ELISHA BARTLETT, AARON BARKER, ROEERT HARRIS, AMOS ARCHER. UNITED STATES OF AMERICA, DISTRICT OF MASSACHUSETTS, SS. At a Circuit Court of the United States for the fir?* Circuit, begun and holden at Boston, within and for the aforesaid District of Massachusetts, on the fifteenth day of October, in the year of our Lord one thousand eight hundred and eighteen. THE Jurors for the United States of America, within the District and Cir¬ cuit aforesaid, upon their oath present, that John Williams, late of Boston afore¬ said, Mariner; John P. Rog, late of Boston aforesaid. Mariner; Francis Frederick, late of said Boston. Mariner; Nils Peterson, otherwise called Niis Peterson Fosrelgren, late of said Boston. Mariner; and Nathaniel White, otherwise called Nathaniel White Gla^-s, late also ol Boston aforesaid, Mariner; not having the tear of God before their eyes, but being moved and seduced by the instigation of the Devil, on the twenty-second day of July, in the year of our Lord one thousand eight hundred and sixteen, with force and arms, upon the high seas, O'.t of the jurisdiction of any particular state, in and on board of a certain vessel called the P attsburgh, w-hich said vessel then and there belonged and appertained exclusively *o a citizen or citizens of the United States, in and upon one Thomas Baynard, in the peace of God, and of the said United States then and there being, on board of the vesse aforesaid, piratically and feloniously, wilfully and of their malice aforethought, did make an assault: And that the said John Williams. John P. Rog, Francis Frederick, Nils Peterson, otherwise called Nils Peterson Fogelgren. and Nathaniel White, otherwise called Nathaniel White Glass, then and ther upon the high seas aforesaid, out of the jurisdiction of any particular state, in and on board the vessel aforesaid, then and there bel ngtng and appertaining exciusi’t eiy to a citizen or citizens of the said United States, as aforesaid, piratically and feloniously, wilfully and of their malice aforethouglu, did take the said Thomas Bavnard into both hands of them, the said John Williams, John P. Rog, Francis Frederick,' Nils Peterson, otherwise called Nils Peterson Foselgren, and Nathaniel White, otherwise called Nathaniel W hite Glass, and did then and there piratically and feloniously, wilfully and of their ma ice aforethought, cast, thr. w and pu.-h the said Thomas Baynard from on board of said vessel into the sea, by means of which said casting and throwing and pushing of the said Thomas Baynard from oi> board of the said vessel into the seo far Mr. Blake, gentlemen, and the figure with which he con- ludes, expresses with great force, our opinion of the situation of he government’s witnesses, on this occasion. If then, it be urg- d, that the witnesses have not confessed themselves guilty, we ay, there can be no stronger objection to them, than their actions how , what their words deny. But they have confessed enough to move themselves infamous; and if any transaction of that kind, aok place on board that vessel, they have witJiheld enough, to rove themselves perjured. Those who have the hardihood to ommit murder, or even to conceal it , have no compunctions in ilsely throwing the crime on others. They wish to destroy for- aer associates, for if they escape conviction they fear their ven- eance. This, they pretend, prevented their disclosure at first : irely it must now lead them to say enough to secure themselves, y putting the prisoners to death. A witness, convicted of cer- lin crimes, is not allowed to testify. Brae. 6, 4 ca 19 ; Gilb. 25b. i in what principle is this? Because, it is the probity of a witness hich we regard—his sense of shame—his moral sense—his re- ard for his fellow men—for society—his belief of responsibility »r his acts in a future life. Hence, no infidel can testify. Om- hund vs. Barker , Jltkyns 1. Hence no man, alleging or discov- ring his own turpitude, according to Lord Coke , Inst. 4, 279. one, convicted of the crime of falsifying, or petty larceny, or barratry Hence too, men and women of abandoned character, are not to be credited— Mass. Rep. —What is the difference, then i gentlemen, as to the credit of his testimony, between a man con¬ victed of a crime, and one who, by his own confession, ought to < be convicted ? It is not the conviction, it is the crime which inca¬ pacitates. They indeed, tell you, that they acted under con- i straint; but if the prisoners could go upon the stand, they might tell a very different story. If any thing of this kind, was done, • are not the prisoners equally worthy of credit, and might they I not reverse the whole affair? They might tell of confessions— who gave the blows—who shared in the plunder—who acted as first and second in command, after the affray. If a person have a promise of pardon, says Lord Hale, this disa¬ bles his testimony, Hale's P. C. 2d. 280. Why is it so, gentle¬ men ? Because, that promise may operate on his mind, as an in¬ ducement to swear falsely. Now what is the difference, as to the operation on the mind, between the certainty of a pardon, which these men have, (if they make out their accusation,') and the prom¬ ise of it. Let me again suggest to you, the many instances of false testimony and false accusations to take life, recorded of ac¬ complices. Hume, Oaic's testimony &c.; Hutchinson ; Rudd's case; Cowper; 336, See. &c. Recollect too how easily in their repre¬ sentations of the pretended conversations, “ the suppression of a word, of a syllable, of an emphasis, may change the sense. So words spoken in exclamation, conveying by sound and gesture, surprise and abhorrence, may be represented in evidence,” as the confession of guilt.—From the nature of human passions and ac¬ tions ; from the experience of all past time ; the authority of an uninterrupted series of legal decisions; and the councils of wise men; the uncorroborated testimony of accomplices, must be deemed altogether unworthy of credit. But perhaps it may be said, that their testimony is not uncorroborated. By the neces¬ sary corroboration of the testimony of accomplices, 1 understand proofs of circumstances, necessarily connected with, and making part of, the transaction charged as criminal. I do not understand it to be sufficient, to bring evidence as to facts of public notoriety, which all must agree in, because every body knew. It must es¬ tablish some essential and substantive part of the specific crime charged; some fact, which could not exist, consistently with the prisoners’ innocence. That there is such a place, as Baltimore; that it is a commercial one ; that there was such a vessel as the Plattsburgh; that she ?ailed on a voyage in 1816,—these are Dot facts, which are to satisfy you, that the five men at the bar, mur¬ dered wilfully and maliciously, one Thomas Baynard. This is not the corroboration, which the weakness of the witnesses testi¬ mony reopiires. They are not to be believed, gentlemen, swear¬ ing to their own infamy —in their own cause —for their own lives — concerning transactions, which took place, if at all, on the ocean; when no other human being is present to confront them,who was 37 on board that vessel, except the prisoners, whose mouths are shut; and who, if it were not so, mig-ht most completely contra¬ dict their story. But are there not other objections to them, be¬ sides the conclusive one of the character of accomplices, in which they appear. Consider their story, and their conduct. In some particulars they contradict each other; and in others, state what is exceedingly improbable, if not impossible, to have been true with respect to themselves. It is a rule of law by which you are bound, that if you believe a rvitness has sworn falsely in any one point, you must reject the whole.— Coke , Inst. 4. 279. If you do not know which to believe, you must believe neither. Onion says, he did not serve as seeond mate after the transaction. Samberson swears he did. Onion said, without qualification on the stand, although an attempt has been made to explain the contradiction this morning, that he took the name of Yeiser. Samberson says, Williams took it. Onion says, he took the money reluctantly. Samberson, that he took it without re¬ luctance. Do you believe that part of the black man’s story, in which he says, that he was dragged, and compelled to come on deck, just in time to witness the casting of the body of Baynard into the sea; and fearful, and suspicious of him, as he says they were, and in,his station, do you believe they made him the con¬ fidant of their secrets? Do you believe his anxiety, to diclose in Norway, when he made no attempt in Copenhagen? While he is watched, he tries to disclose ; when he is at liberty, he forgets it. He is an uninstructed man, of the lowest class in society; igno¬ rant probably in a degree of the nature ot an oath ; swearing, as he understands, for his life; a stor} r which he had ample time to agree upon with the mate. Is not the mate's evidence to be rejected, gentlemen ? He comes into the court, in the first place, to take one oath, according to his own confession, to violate anoth¬ er He comes to call his God to witness, that he has already, in the same solemn manner, taken his name in vain. He was an of¬ ficer on board that vessel, gentlemen ; bound by the most im¬ perious obligations, to good faith towards his superior officers and owners. What does he do, according to his own account ; He deserts his captain in the moment of his peril—he leagues with his murderers ; shares in the plunder, even of his captain's cloathing—associates with them; enters into speculations with them—preserves a profound silence, as to the crime ; does not write even to his friends; and confesses only, when he hopes to save his own life, by betraying his fellows. If innocent as he swears, why not reveal it? Such is his conduct. Take his story. He at first, in this scene of blood, receives a slight blow on his head, which he thought the flapping of a sail ; so gently did these ruf- fins proceed. Murder is generally made of “sterner stuff.” Did they merely give him a box on the ear, just to excite his attention to the transaction ? He is next seized by them, but no harm en¬ sues. A blow of an axe is aimed at his head, but by another miracle, 38 it does him none, or but slight injury. On finding his captain in danger, he promptly and dutifully runs away; waits patiently be¬ low, until all those who might have assisted him, and whom he might have assisted, are no more, and then joins in the plunder; and yet, he had no participation in the crime! Do you, or can you think all this is true , gentlemen ? If his conduct was what he swears it was, he is unworthy of credit in any thing else. If his story is untrue in any part of it, you are bound to reject the whole. It is not possible, gentlemen, that on such testimony,—thus pollut ed—thus discredited in its very character—thus absurd and in¬ consistent in its statements ; you can consent to take the lives of five human beings. But such, and contaminated as it is, gentle¬ men, it does not, from beginning to end, implicate White. His absence indeed from the scene, when, had he been present, even Onion says he must have seen him, unless he was hid ; his lament¬ ing constantly the transaction, and disclaiming any part in it, (for if you admit the mate’s testimony as to the others, you must as to White,) all prove his innocence. Even were it true, as the black man pretends to state ; that he was on deck after the transaction, and appearing to join them ; it is accounted for by the certainty, that if such acts were done, his opposing himself to others, thus possessed with power, would have cost him his life. If then you discredit the testimony, and history, experience, law, and jus¬ tice, show you the danger of confiding in it, you must acquit all the prisoners. If you believe it, you must at least exonerate White. The subject, gentlemen, is not exhausted ; but I am un¬ willing, in this very protracted trial, longer to detain you ; and the gentleman who will succeed me, will more than supply all my de¬ ficiencies. Permit me briefly to recapitulate a few of the sugges¬ tions which I have made. We say, that under this iudictment, the prisoners must be proved to you, each and all of them, to have committed the murder, or to have been present, aiding, assisting, and abetting in its commission. That the fact of the killing is not established. That if it be admitted to be probable, men’s lives are not to be taken away on probabilities. That there is no direct evidence which can be relied on, even if the witnesses are thought honest, that Williams and Rog had any share in the transaction ; and none at all, as to the others ; that conversations stated, are not confessions ; and if they were, would not, in these circumstan¬ ces, be evidence; and if they were both, might be accounted for by the supposition of compulsion and terror, which would take a- way the character of malice and crime, even from violence, if it had been proved to have been committed ; that it is all presump¬ tive evidence, and too weak to produce conviction, even if the witnesses were credible ; that they are not credible, because if any crime was committed, they were accomplices, and are not cx-edible, from their own conduct, as they relate it, and the in¬ consistencies of their own story. 39 Gentlemen, to your hands is the fate of the prisoners consign¬ ed. It is not my intention to address myself to your feelings, on an occasion, which must itself excite them, more powerfully than language. “ Presumptions should be very warily pressed,” for said Lord Hale, (in whose character, the union of wisdom and hu¬ manity, was most eminently and benignly illustrated,) “ it is bet¬ ter that the guilty should escape, than that the innocent should suffer.” If yielding to the doubts which every where surround this cause, and uninfluenced by the ability and eloquence, with which the council for the government will address you—you pro¬ nounce a verdict of acquittal; and the innocence of the prisoners, should hereafter be made manifest; the recollection of it, will be to you forever, consolation and peace. If even, on the other hand, this deed of darkness has been perpetrated ; and the priso¬ ners should ever be proved, all or any of them to have criminal¬ ly shared in it; you will not, even then have cause for regret; you will not even then fear, that its “ Deep Damnation” will go unpunished ; or that He who hath said Vengeance is mine, will not amply repay. —Gentlemen, I have only to pray for the prisoners, “ a good deliverance ;” and for yourselves, that Almighty God may direct, and approve your verdict. Mr. Hooper was succeeded by Mr. Knapp, who thus addressed the jury in behalf of the prisoners :— May it please your Honors , Gentlemen of the Jury , It is always an unpleasant task to defend those charged with murder, or other high offences. The council for the prisoners never stand an equal ground with the officers for government. The current of public sentiment is generally with the latter, while the advocate for the prisoner struggles against power and opinion. It is a legal, not a moral truth, that a man is supposed to be inno¬ cent until he is proved to be guilty. Public opinion frequently forestalls the verdict of a jury. It is in vain to say that any man is above it. It may influence him when he is not aw r are of it. If the labors of counsel were ever hard, ours is so this day. The great commercial interests of our country, are so closely inter¬ woven with national prosperity and glory, that they must be guard¬ ed at every point. Individual human life is nothing to the secu¬ rity of maritime rights, privileges and facilities ; and every one who disturbs the regularity, prosperity and safety of navigation, is justly treated with the utmost rigor. The severity of laws is seldom to be complained of. They are commonly just, and made for wise purposes. It is the severity of public opinion that the prisoners have to fear ; but this severity of feeling should Sever enter a tribunal of justice ; there the whispers of reproach should die ; and there prejudices and partialities should cease ; for every man should be tried by the law, and the evidence in his case. It is impossible I know, not to catch something of the general sympa- 40 thy which surrounds us in favor or against the prisoners, but this feeling is a fallacious guide, and will never be followed by an up¬ right and an honest jury What must be the feelings of council, w hen they know that every eye flashes indignation on the priso¬ ners at the bar, and every breath is but a suppressed impreca¬ tion on their heads ? Should the prisoners be abandoned because the public mind is agitated, and the people ask for their condem¬ nation. The timid and the time-serving, may yield to policy or to fears in such a case ; but gentlemen it is our duty and yours to go on and search, and weigh every thing which will make iu their favor, even if public resentment should shake this hall of justice to its base, and attempt to pull down the edifice on our heads. Humanity dictates; the law allows, and this enlightened, pure and high minded court will protect us, and indulge a fair course of discussion, and even demand of us a thorough and patient investi¬ gation in this case. Freedom acknowledges, and honor sanctions theprinciple, that every human being, however wretched and fallen and lost, should find some one to plead in his favor. The world is full of examples to this effect, and the page of inspiration bears record that the father of the faithful, twice, thrice, yea, six times importuned his God to spare the accursed cities of Sodom and Gomorrah, and the Most High was not offended. The pleadings o l'dust and ashes so far gained on the clemency of Eternal Justice, that he diminished the number of the righteous, for whose sake he would spare the wicked, from fifty to ten. If it be the duty of holy men to implore mercy of Heaven for the vilest of sinners, surely the appointed advocate in a court of justice has no reason to shrink from demanding righteovis judgment from a human tribu¬ nal. However general the burst of public indignation may be a- gainst the supposed perpetrators of crimes on the high seas, I will not believe that the magnanimous citizens of my country could w ish to see them destitute of assistance. No, they would ratheF help in their defence ; for indignation among the moral and virtu¬ ous, is but a momentary feeling, while the love of impartial jus¬ tice is a permanent principle. Three out of five of the prisoners are foreigners, strangers to our laws, our forms, and, what is more, strangers to our humane feelings. They are, of course, jealous of every thing. They look, and there is no friend near, no eye to pity, and no arm able of itself to save. Their communication is cut off from their fel¬ low men, and the only kindness they have felt of late, has been from the ministars of justice,' and the only friendly salutation which has reached their ears, has come officially from the Clerk , 1,1 God send jmhi a good deliverance.” They have so long been on bond¬ age, that the earth under their feet seems to them accursed, and the Heavens over their heads are dark and cheerless, save only the vista which, through contrition and penitence, religion opens up to the forgiveness of their Maker. From the very nature of the charge, they have no witnesses; no one who knew them in 41 better days and in other circumstances, when probably their chief crime was -profusion of generosity, and their highest offence was a total disregard of self. Shrunk and blasted as they are by pub- lie abhorrence, they can confidently rely on your sense of justice, They have been so instructed by those who knew you. On fair and enlightened decisions, in courts of justice, depend the safety, stability and dignity of government. If the judge is condemned when the guilty escape, he is doubly so when the in-* nocent are convicted. The forms which wisdom and experience have settled and fixed, must be strictly guarded. A close adher¬ ence to them is the great security of human life. If they are ever infringed by the plea of supposed necessity or public excitement, all personal security is uncertain. It sometimes happens that criminals escape by a rigid adherence to these rules ; and for a moment it may be a subject of regret ; but, on sober reflection, the wise and judicious would more certainly grieve at any infringe¬ ment on their sanctity, than at the escape of an hundred criminals. One of these substantial rules is, that the prisoner should meet his accuser face to face, and that nothing of hearsay should be considered as evidence against him. Another, that the accuser’s character should lie open to the investigation of the prisoner,that the jury might know what weight to give his testimony. The witness must be under oath ; but you are to'consider how far this may be thought to bind him to tell the truth. His character, his story, his inducements to falsify, are all subjects for your discus-* sion and decision. Who are allowed to take this oath and stand before you as a witness, i^for the Court to decide ; but hove far the witness is to be believed, after he is sworn, is for you to judge. But in this, neither the court or jury are left without guides. The sages of the law have from time to time fixed wise rules, which are now considered binding as far as they go. Per¬ mit me to comment for a moment on a few of these rules, which are applicable to the case of the prisoners at the bar. As on the purity of a witness and the truth of his testimony, depend our lives, property and liberty, it is necessary cautiously to scrutinize all oral evidence, that we may get at the truth. It is painful to think how much error there is after the utmost caution, Falli¬ bility is stamped on every thing human, when men are enlighten¬ ed and governed by the purest motives, and the best affections; but to what an extravagant height it is carried, when they are weak, ignorant, passionate, revengeful and false. From honest ignorance, much error is to be feared, for the ignorant cannot dis¬ criminate accurately ; they confuse by mingling facts, opinions and wishes together, and although their statements seem full of honest candor, yet in truth, they are frequently full pf error. The weak draw improper conclusions from misunderstanding the subject ; and folly has almost always a dash of malignity in jt ; and malice easily overpowers an imbecile mind. Enthusiastic and passionate people infuse much of their feelings and wishes into 6 42 what they say, and the solemnity of an oath is forgotten in the fervid current of their emotions. It would indeed be painful to look back through the history of those who have suffered by the false and the revengeful. 1 believe there is as little false swear¬ ing in our court*, as in any in the world, but let the believer in the purity of human nature, the optimist who thinks the best of every thing, be an observer even of our courts, and he will hear so much false testimony from ignorance, pa-sion, partiality, inter¬ est and hatred, that would soon destroy his theories of perfecta- bilitv, dash his systems of purity inlo dust, and leave him in doubt, if it did not force him into the belief of total depravity. Much of this evil happens when men come forth as witnesses without any apparent cause for deviating from the truth. At all times the jury are bound to sift evidence with the most scrupulous care ; but all the might of their understandings, and all the honesty of their souls, should be summoned up to analyze and examine tes¬ timony which comes in a questionable shape and carries doubt on the face of it, particularly such as you have heard this day from the mouths of accomplices, such, by their own confession. The testimony of a confessed partner in guilt should ever be suspected. Selfishness has no moral purity. If the developements of an ac¬ complice could flow from contrition and penitence, then they might create some confidence, but not full confidence then, for he might judge of the motives of others by his orvn before he felt any compunctions. But when such developements come, as they generally do, from the low and base wish and expectation of screening one's self from punishment, they contain the villainy of crime and the moral degradation of perfidy. The communi¬ cative wretch can never forgive the man he has ruined by divulg¬ ing their mutual turpitude. To the correct statement, he adds the suggestions which his own perfidy deems necessary for his personal security. The ancient law of approvement, in some res¬ pects, was excellent; to hold the approver to the nice and entire proof of his statements,or make him suffer the punishment, which, if he had been believed, would have been inflicted on those he bore witness against. Modern policy has altered the rule, but has not changed the reason for doubting the testimony of an ac¬ complice. The moral infamy is as great in a confessed accom¬ plice as if he were convicted. If he were convicted, his testimo¬ ny could not be received, because he would be legally infamous. You and I believe a man to be no less a rogue before he is con¬ victed, than after, if he is guilty of a crime. For reasons of poli¬ cy there is a distinction, but in morals there is no difference, j The framers of this rule of distinction were fearful of going too far, and more than hinted again and again that the testimony of an accomplice must be supported by other corroborating evidence before a jury would convict a prisoner. The legal guardians de- x cided on the competency of an accomplice with great deliberation, 1 but never admitted him as a matter of course. The counsel for 43 government must move the court that he be admitted. His guilt makes him unworthy the stand, without special leave of court. The accomplice then comes before you stained with guilt, admitted from state necessity,to tell a tale of villainy in which he was an actor; and this to shield himself from punishment; not from ignominy; for every one looks on him as a felon spared, not from clemency, but necessity. The credit due such a witness is trifling indeed, when on his testimony hangs the fate of others, as good at least as himself. That excellent luminary of the law, Sir Matthew Hale, who was good and wise above|jmost other men, has left this memorable sentence on record, speaking of the tes¬ timony of an accomplice; “ and truly it would be hard to take away the life of any person upon such a witness, that swears to save bis own, unless there be also very considerable circumstan¬ ces which may give the greater credit to what he swears.” Hale, pi. cr. 305. Another part of the evidence against the prisoners at the bar, is a statement by one of the accomplices, of certain confessions made by the prisoners or some of them, in hearing of the wit¬ ness. On this, probably much stress will be laid, as affording proof, not only of the share of guilt they had in the transaction, but as shewing that they have hearts devoid of social duty, and fatally bent on mischief These confessions, I think you will see, do not amount to much, when you have thoroughly examined them. Confessions are inadmissible evidence when obtained by promises or threats, be they ever so slight. It is deemed unfair to question a prisoner when under the influence of agitation and fear. The mind, under such circumstances, is confused, and an¬ swers are returned to questions, without thought or accurate re¬ collection. Although the authorities seem not to speak out fully, yet they all favor the principle, that confessions to be worth any thing as evidence, must flow from some contrition; or the terms free and voluntary, are nugatory ; for no man would make a free and voluntary confession, except from hope, fear, or compunction of conscience. If what have been called confessions, were made as have been stated, they were made under the influence of intoxication, and as in Vaughan’s case, must be considered as a nullity. Men are answerable for their deeds when drunk, but not for their words. If any such conversation over took place, as the witness has stated, the whole crew were in high ex¬ citement,and over their grog attempting to out-swagger each oth¬ er. You will not say, even if something of this sort of boasting did occur, that men shall answer with their lives for such silly and false bravadoes. If confessions sworn to by honest men and un¬ exceptionable as witnesses, are not of much weight in the scale of evidence, how little attention should be paid to them when narrated by an accomplice. These multiplied uncertainties make what is extremely doubtful, which is nothing as evidence. Open mouthed credulity would hardily swallow such a tale from such a 44 tnan ; and common sense would spurn at it without hesitation. There is another rule and a sound one, that all confessions, what¬ ever degree of credit be attached to them, must be considered individually and not generally. A cannot confess for B, nor he for another; nor can a part of one man’s confession be taken without the other part. If this were not so, out of our own mouths might we be condemned, almost any day of our lives. This whole string of confessions are, when examined, nothing but a tale of riot and merriment, “ told by an idiot” and a knave, “ full of sound and fury, signifying nothing.” We have, gentlemen, discussed the nature of the testimony of the witnesses; it may not be improper to say a word on the character of these men. Stephen Burnet Onion, who sailed from Baltimore as second mate of the schooner Plattsburgh, is the first. Take this man's story and learn his worth. After the transaction of the 22d of July, 1816, he states he assisted as second mate ; like the Vicar of Bray, he was determined to hold his office, whoever was com- m ader, and did, until she arrived at Norway. This might all have been explained and justified, if he had done his duty after¬ wards, when he was in a Christian country, and sure of protection. When the men who terrified him so sadly, and compelled him to do duty on board, had no power to harm him, but were entirely in his hands—did he go and divulge all the secrets he had to tell? No—he kept them, and the booty likewise, and entered into spec¬ ulations with the prisoner, Williams, and purchased sugar and oth¬ er articles for shipping. He had turned merchant on his robber}", and had great hopes of making a fortune, no (joubt. Baynard, Hackett and Yeiser were only remembered by some precious ar¬ ticles he had of them in his possession. This man entered at first into Stromer’s nefarious plans, or the plunder won his heart. A few thousands had sealed his lips, and hi» conscience rested quiet on a bag of silver. Immaculate creature ! How magnanimous and just are your deeds? What unbounded confidence ought to be placed in your word ! Gentlemen, he indeed borrowed the name of Yeiser, and went under his protection , but undoubtedly all this was for public good, that he might be brought forward this day against the prisoners ! Can this man possibly forgive them he has so vilely injured by his falsehoods? Gentlemen, I am not quarrelling with nature nor her works; but 1 ask you just to turn your eyes on this witness's face, and tell me, is there one line of honesty or veracity to be found there ? Will you put the lives of men in jeopardy on such testimony ? Will you believe a wretch who had not sufficient bravery to defend himself or assist others? A man who had sneaked under a false name, and who meanly be¬ trayed those he had assisted to seduce ? Will you rest your ver¬ dict on the testimony of Stephen Burnet Onion, steeped, as be is, to the lips in guilt ? The dastard has told his tale to save his life. He may live long, but conscience, like the vulture, will tear his breast, while he drags out the remnant of his days. If it were 45 possible for him to escape the scorn of man, he never will escape from himself. Conscience will forever make a coward of him. What has been said of Onion will generally apply to the other witness, Edmund Samberson. He too, was an accomplice. He partook of the spoils, and betrayed his coadjutors in plunder. Will you believe his statements of what he saw and heard, when he was, from his own account, trembling with fear of corporeal harm ? In the darkness and confusion, could he make accurate observations on what was doing? It is too much to be believed, gentlemen. His story is composed of after thoughts, suggestions, and conjectures, and has been so often related by him, that he appears to have the confidence of a man of truth. I will now consider the facts as stated by the witnesses. The indictment alleges the death of Thomas Baynard by drowning.— The first question, fur you to decide is, Has the death of Thomas Baynard happened ? One of the witnesses swears, that he saw him thrown overboard, and afterwards heard his cries in the wa¬ ter, and that he never saw nor heard of him any more. I grant, gentlemen, that for all common purposes, to all civil interests, and rights, and to every common intent, his death may safely be inferred ; but gentlemen, no room should be left for inference in this case. The death must be shown to have happened, to an absolute certainty. This must be established before the prison¬ ers can be charged with the crime of murder. The death on a charge of murder is not to be proved like most other facts, by a preponderating balance of probabilities, but the testimony must be direct, positive, full and satisfactory, not leaving the shadow of a doubt on the mind. The case as stated by the judge who tried Hindmarsh, mentioned by my associate, is, that a child was thrown into the dock, where the water flowed in and out, and nothing was known of the child afterwards. On this the jury were directed, that the possibility of the child’s being alive took away the absolute certainty of its being dead, and the indictment could not be supported. Now is there more probability in the case as stated in this trial, than in the present case ? Is it not as probable that Thomas Baynard is now alive as that the child was not drown¬ ed ? Both are highly improbable, I agree ; but the law says, that it is right and just rather to reason from improbabilities, than to admit uncertainties in such a case. The difference between a certainty to a common intent,and a certainty to an absolute intent, is greater than we commonly imagine. If a man goes out to sea in a small boat,and a storm arises,and afterwards the boat is found upset,it is fair and just,to all common purposes and intents,to infer that he has perished,hut still he might notbe dead ; such instances have occured in our time, and the supposed deceased was afterwards found to be alive. Would you not say, gentlemen, that a man who was seen going ovor the falls of Niagara in a skiff, and never heard of more, was dead ? Yet men have gone over the falls safe, and it would not be impossible that he might be alive whom we thought was lost. 46 When Daniel was cast into the liorfs den, it might have been fairly inferred that he was instantly destroyed, but still that infer¬ ence would have been false, for he was not killed. The angel of the Lord shut the mouths of the famished lions. Does not that same angel walk on the waters to rescue his charge from the deep ? It was indeed a special providence, but that special pro¬ vidence which all acknowledge, but which no one can define, is constantly operating on all the incidents of life. If Baynard should at this time come into this court, it would surprise us ; but stranger things than that have happened. In this case you have no right to conjecture or reason upon his be¬ ing dead. The only question is, has his death been proved to a demonstration ? If not, then your inquiries will end here, even if you believe the witnesses. But if Baynard be dead, who killed him ? Samberson says, that Williams and Rog threw him into the sea. But allowing him for a moment to be a fair witness, how could he tell precisely who did the deed. It was a dark night. No moon rose to throw her silver mantle on the waves, and no star was seen in the Heavens that night ; all was as dark as death. It was impossible for Sam¬ berson to tell who threw Baynard into the sea. He could not have told who did it, even if he had been perfectly collected and within a few feet of them. But was he not, from his own ac¬ count, nearly frightened out of his senses ? How, in the name of truth, I ask, could this witness be so positive in such a scene of confusion and dismay ? When, if it had been open day, the hardest nerves of innocence would have trembled, and the brightest eye ol bravery have closed at such a sight. Were Peterson and Fred¬ erick there at that time ? He does not say, for he could find no¬ thing for them to do, and his tale must be told in such a manner as to bring home the murderers severally to the men, who were ta¬ ken, and get them convicted, that he might be entitled to free¬ dom, for his services to the country. Where was the arch fiend Stromcr and his hellish confederates, Smith, Stacy and Raineaux? Were they spectators of this horrid scene, so greatful to their in¬ fernal dispositions ? Had they no hand u in this deep damnation of his taking off?” They are not here, and Samberson has no ob¬ ject in charging them. He fears that if he had stated what they did that night, some of these unhappy men might escape, and that would not suit his purpose. The demons of murder always rea¬ son on such a deed, that “ If it were done , when ’tis done, then ‘twere well it were done quickly and it is not probable, that Baynard was left stretched on the deck to die, but was, like the others, thrown instantly into the sea. Diabolical as they are re¬ presented to be, they could not have wished to hear his groans ; for he had not injured them, and was lovely and amiable to all. It is said, that Frederick had a gun in his hand, in the cabin, but this was some time after the confusion on deck, when Baynard was thrown overboard. If he had taken it as an offensive wea- 47 pon, it would have been used on deck, to despatch the officers ; but neither Onion nor Samberson saw him have it there. It must therefore have been seized in a moment of agitation for self de¬ fence. This may seem doubtful if you believe the witnesses. But let us for a moment consider how this whole business was pro¬ bably managed. Stromer is represented to be a man of consider¬ able acquirements, who had been commander of large vessels, broken down and degraded by his vices ; and so reduced in his circumstances as to be under the necessity of shipping as a com¬ mon sailor. He had associated and boarded with them in Balti¬ more, and knew how to pick his men for an enterprise of u pith and moment.” Smith, Stacy, and Raineaux were well known to him ; and I think it is more than probable that this plot was en¬ gendered before they left Baltimore. They soon saw the material of the crew, and knew to whom they might apply for aid and as¬ sistance. There are always, among a number, some men who are but of trifling importance to the daring spirits in forming an enterprize. They are of too little consequence to be solicited to join a plot of magnitude, good or bad. Stromer had his secret council about him, and thought but little of such men as Frederick and Peterson. They might or might not be with him, he cared not a “ pin’s fee.” His myrmidons were sufficient for taking off the officers ; and all the small folks about the ship he was sure to awe to obedience in an instant after the legitimate officers of the vessel were gone. It was not necessary to divulge his secret ar¬ rangements, for such a man is sure of the adhesion of those who would have been base enough to have joined him, had they known his schemes. He is sure too of those who are operated upon by their fears solely, for they, poor fools, will always follow the most determined and resolute.—Frederick was an Italian sail¬ or, and passenger, working his way to his native land, and was not on the shipping paper, nor did he consider himself as one of the crew. Peterson was a boy, and would have dared to have met a shark in the water as soon as he would have ventured to have given his opinion in a council upon, the life of Onion. Peter¬ son says he was ordered upon deck by Stromer, and he obeyed. It would be wanting in knowledge of human nature to doubt his story. He who would say, “ why, Stromer was only your equal,” you need not have regarded his order, he was a sailor as you are, does not know the power of mind, and particularly its influence in a moment of anarchy and confusion. The government on board the Plattsburgh was just as good the day following these horrible events as ever it was. This shows every thinghad been arranged by a few only. I will now call you attention to the evidence in the case of White. Plis own account of himself is, that he left the deck at twelve and did not quit his birth until between three and four in the morning; that he had no participation in what transpired, eith¬ er in thought, word or deed; that he knew that the vessel was to 48 be taken from the officers, and'as he understood, they were to be put into a boat that they might reach St. Mary’s. He feared to tell the officers, thinking that it would produce not only his own death but the massacre of them. He joined them afterwards and assisted in working the vessel and shared the money with the crew to save himself. Let us look at Samberson’s testimony. He sa} r s that he saw White on deck at the braces or some other part of the rigging, assisting to work the vessel, but he was pro¬ foundly still. The next time he saw him, was in the cabin coun¬ cil upon Onion’s life, but he did not talk about Onion, but laugh¬ ed and talked about other matters—he also heard him say that coffee was unnecessary, when Stromer ordered it, and that he took a glass of whiskey with Stromer; was cheerful, gay, and full of stories all the remainder of the voyage—but never heard him boast of any share in the transaction. This is the amount of his testimony; take this alone, it is nothing, but wffien taken in connection with facts, and circumstances which have transpired, and with Onion’s testimony, all suspicions of his having a share in the villany, are gone. Onion did not see White when he came out of the bread locker at the request of the council held upon his life ; and certainly if he had been there Onion must have seen him. If he had spoken any way for or against him, his ear could not have mistaken sounds at such a moment, when his life perhaps depended on a word. White was not there ; Samberson lies. White would not have dared to counteract an order of Stro¬ mer at such a time, and therefore never said any thing about the coffee. Stromer had his first meal in the cabin in perfect order, not one of his associates was there-^—his officers only sat at the table of this demon. Onion further says, that while the crew were handling the money, White whispered in his ear his horror at such a deed, and disavowed all participation in the business. If he had been one of the fellows of Stromer, would he have dared to make such confessions? Could he have wished to make such a statement ? If Samberson is believed, the most of them on this sabbath of rapine and murder, when the money was divid¬ ed, revelled with savage joy in the recollections of their atrocity. Tne statements of Onion are all in favor of White ; his demean¬ or, his confessions, in fact, every thing Onion saw or heard, was in favor of White. Samberson says that he was full of glee. This is the strongest circumstance that can be adduced in favor of his innocence; for if he had been delighted in thinking that the vessel was taken, the very pleasure would have induced him to allude to it frequently. He would hay.e been in great fellow¬ ship with the rest of the crew upon this exploit. He was gay, precisely as any one would be, whose sincerity in the busi¬ ness was doubted. Both witnesses say they were as cheer¬ ful as they could be, and made exertions to be pleas¬ ant; and you, gentlemen, from you knowledge of mankind, will say, that it is natural for a man, under such circumstances,to put a 49 forced smile upon his countenance. Many an aching heart has been hid under a smile, and jollity and mirth have been tne necessary disguise of horror-struck minds. In days of revolution and blood¬ shed, this happens every hour. In situations of personal danger, all classes of men have nearly the same feelings, varied more by their constitutions than bv their information. The memory and invention of White, were quickened in detailing these stories to amuse the crew, for he saw that they turned their attention from him to his stories. The thousand and one Arabian tales, whose beauties have delighted children and phi¬ losophers for ages, were invented day by day, to soften the wrath and arrest the dagger of a despot. W hite’s stories were of a differ¬ ent sort, and weask no credit for their wit or delicacy. They were told to screen him from danger, and they answered his pur¬ pose ; and that is sufficient. What different conduct, gentlemen, could you have asked of a sailor ? His course was wise and prudent as to himself, and it did no harm to any one. His lamentations, however loudly uttered, could not have called from the bosom of the deep, those who were said to have been cast there. _ A word ot murmuring would have plunged him after them. Through the whole affair, he took just such a part as an ignorant, good hearted, honest but sagacious man, would have done. He regarded that law, which is said to be the first in nature—self preservation. He vtas silent when complaining would have been useless; he acquiesced when 3 osition would have been death. If his blood is wanted to satisfy iscriminate public vengeance, let it be shed ; but if you wish to raise a monument of justice amid the convulsions and throes of the public, spare him; and your children and posterity, to the latest period, shall reverence the memory of men who dared, at such a moment, to be just and discriminating. May the proud recollec¬ tions of virtuous independence, be yours ; and “that calm sunshine of the breast,” which is a foretaste of a better world. This is an important moment of your lives ; but j udge ye upon such principles as you wish to be judged by, and you cannot do wrong. “-To thine own self be true ; And it must follow, as the night the day, Thou canst not then be false to any man.” The fate of mere seamen is hard beyond that of any other class of men in the community. Their prospects are that of perpetual drudgery and privation. Their toils are endless, their hopes noth¬ ing. They are required to conform to the strictest regulations, without any moral instruction. Instead of living like other men, and having line upon line and precept upon precept, their only stimulus to do right are a few hearty curses for doing wrong. The examples before them are frequently none of the best. They endure much, enjoy but little, and,,anticipate less. Yet on this class of men much of our prospects, much of our dignity and glory depend. Our naval fame and honor rest chiefly on this hardy race of citizens. Com¬ manders may be found every where. Reputation makes officers brave and skilful, but sailors must be heroes, without the hope o'j c* i 50 individual distinction. Their only elevation rests on the reputation of all their kind. These men will be fostered with care by a nation •who knows her true interests, and their follies and errors corrected with tenderness. Those we have adopted partake of the spirit of our true born sailors. The influence of liberty, like that of magnet¬ ism, is communicated to all it touches. They fight and bleed under the Eagle of our republic.with a spirit that an imperial banner never inspired. They are held as a better class ot men among us than in other countries ; and this is the principal reason of their superiority. If you wish to break the talisman and dissolve the charm ; if you wish to blast your naval glories,and sink in infamy your naval crow n, hang and gibbet, at every corner, for the slightest offences, your bravest seamen ; treat their errors as crimes, and hold their crimes as unpardonable ; keep them from the common indulgences in fa¬ vor of human life, and hunt them down with unsparing vengeance, and you will easily effect your wishes. It requires but a short time to destroy the heroic spirit which it cost ages to rear. The protec¬ tion of seamen is one of the safeguards of commerce. Wholesome restraint is a part of protection, but severity is not. Of the impor¬ tance of our commercial relations, there is now but one opinion ; all agree that no nation can be great and powerful and happy without commerce. Commerce is not only the golden chain which binds to¬ gether the world, but it is also the golden mean to all noble ends; the patroness of agriculture and the arts. Our nation has felt its rapid and cheering influence. Two centuries have changed the skiff and the canoe, whose freight was muscles and shrimps, to numerous fleets, laden with the wealth of the world, and tall navies, riding triumphant in victory. “ Our merchants are princes, and our traf¬ fickers the honorable of the earth ” They extend their influence not only to arts and agriculture, but to science and letters. They rival the proud munificence of the Medici, in lavishing their wealth on seminaries of learning and institutions of charity. But afterev- ery praise, it is the nature of our existence, and the fate of man, that every excellence has some concomitant evil, and every pur¬ suit some bias or prejudice. That which arises from a crowded population and an extended trade, is a too great susceptibility of feeling, on subjects nearly or remotely connected with its interests. This not unfrequently misleads the judgment of the best of men. The larger the commercial city, the more inflammable is public feeling. A single rumour has agitated Venice in her most pros¬ perous days ; and a single stockjobbing story on the exchange ol London has carried consternation, confusion and ruin to thousands. It is impossible for the wisest and firmest to resist a general im¬ pulse. These stories generally soon evaporate, but sometimes citizens are called to decide as jurymen, on subjects connected with the excitement before it has entirely passed away. Then comes the struggle. The great and fair mind divests itself of all impressions, and comes into the hall of judgment in the hallowed nakedness of truth. The feeble mind and dependant spirit catch opinions as they float on the breeze, and of course frequently 51 form such decisions as sober and mature reflection condemns, and the innocent suffer with the guilty. Murder by violence and fury is a heinous offence, but legal mur¬ der by incorrect verdicts, is infinitely worse. The slightest sacri¬ fice made to public opinion, can never be wiped away in a case of this kind. The damned spot can never be washed out. It will go down to the latest period without atonement. Time will point his finger at such a stain in every hour of his existence. The Brit¬ ish Admiral Byng fell a victim to a momentary spasm of public in¬ dignation ; and his ghost enters to mar the joy of every festival instituted to commemorate the naval glory of Britain. He did not fall by intrigue or malignity, but by an extraordinary impulse of public resentment. Gentlemen, the advocate for government will follow us. His talents and experience will be set in array against the prisoners. From the nature of his office, he holds the flaming sword of power, which turns every way to destroy, and when such an instrument is wielded, as it now is, by the hand of genius and learning, what unfortunate wretch can escape, unless tne justice and mercy in your breasts turn its edge and ward off the blow. The prisoners are in your hands, gentlemen, under the instructions of a humane and a wise court, who individually could say, “ have I any pleas¬ ure at all that the wicked should die?” Men not wavering “at opinion’s shock ;”but men, who, from Christian mercy and philan¬ thropic tenderness, love, when possible, to save. The counsel in behalf of the prisoners having concluded their defence, George Blake, Esquire, the District Attorney, address¬ ed the Jury, on the part of government, in the following terms :— May it please your Honors, Jlnd you, Gentlemen of the Jury, Having entertained the belief, at the commencement of the present interesting prosecution, that it might possibly be necessary for the prosecutor to bring to its support a degree of learning and talent, in some measure proportionate to the public expectation, and to the importance of the cause, in every point of view, I am not ashamed to avow the fearful apprehensions I had felt of my in¬ ability to perform the duty in a manner suitable to the occasion, I scarcely dared presume that the measure of strength which I posses?, either of body or mind, would enable me to endure, singly and albne, the weight of responsibility which was about to devolve upon me. I will, however, frankly confess to you, gentlemen, that upon further consideration of the testimony, and upon a more full and deliberate view of the whole merits of this cause, every apprehen¬ sion of the kind before mentioned, has been completely dissipated ; and in every thing but the power of depicting, with sufficient force and strength, the deep malignity of the crimes imputed to these defendants, I have the confidence to believe myself as vveli quali¬ fied, as though I were a much abler advocate, to do every thing that can be necessary in vindicating, upon the present occasion, the cause of justice. It is a consideration which has afforded much relief to my mind, on this occasion, and which to you. also, must, I am persuaded, be a source of no inconsiderable satisfaction, that whatever may be the magnitude and the importance of the cause now on trial, it is one of no real, intrinsic difficulty ; that it is a cause upon whose merits, cither as to the law or the fact, it would seem scarcely possible that an upright and intelligent jury, such as I well know vou are, could be brought to pronounce an unjust or erroneous decision. The nature of this indictment,and of the crime therein describ¬ ed, has already been fully stated to you at the opening of the pro¬ secution. The question which arises upon it is, whether the de¬ fendants at the bar, or which or either of them, are guilty of the murder of Thomas Bavnard. in manner and form as alleged against them. In the examination of this question, although many other mortal murders and misdeeds have, necessarily, been opened to your view, in the course of our evidence, yet I am bound to agree with the learned counsel for the prisoners, that it is the specific crime alone, which is charged in this indictment, that must be re¬ garded as the only proper object of your present enquiry. I agree, also, most fully, with the gentlemen on the other side, that it is incumbent on the government, if they would claim your verdict of conviction against all or either of the prisoners at the bar, to sub¬ stantiate the accusation, by clear and indisputable evidence : and t hat if a reasonable doubt shall, after all, be perceived to exist in the case, it ought to be considered, upon the humane principles of our law, as affording most unquestionable grounds for an acquittal. It is, bow'ever, gentlemen, a very erroneous and unfounded posi¬ tion which has been assumed and pressed upon you, with so much confidence, by the learned counsel for the prisoners, and which in¬ deed appears to be the basis of all their refined and ingenious speculations on this occasion,that the bare jmssibility of innocence, can be sufficient in a legal point of view, to counteract, even in a capital trial, all the fair and ordinary presumptions of guilt. If such a doctrine were to hold good, it is easy to perceive, that the whole system of criminal jurisprudence, and every salutary regu¬ lation by which are governed the minds and morals and actions of man, as a member ot society, would, at once be overthrown. I need not remind you that, in the administration of justice by any earthly tribunal, it is obviously impossible to arrive at any certain and infallible results. It is by the aid of that science only, whose employment is confined to the actual numbering and mensuration of its subjects, that w e can ever hope to establish the truth of any proposition, however plain or simple, with absolute, unerring cer¬ tainty, and without leaving upon the mind a possibility of doubt. With regard to every thing pertaining to the science of law, the affairs of civil government, as well indeed as all the common am! 53 ordinary concerns of life, if we act at all, we must be content to proceed without the aid of demonstration, and upon the ground of mere probabilities and presumptions. So true is this, that I will venture to pronounce that, upon the principles which have been ad¬ vanced by the counsel for the prisoners, it would be utterly impos¬ sible, in any case of murder that can be imagined, to bring the of¬ fender to conviction, unless every member of the jury itnpannelled for the trial of the cause, should happen to have been himself an eye witness of the deed, and could therefore found his decision on the evidence of his own senses and perceptions. Let us sup¬ pose a case where the death of the party slain, as in the instance now before us, appears to have been instantaneous A man is found dead in our streets, and from an examination in the body, it appears that the death may have been caused by a gun shot wound. Several, if you please, a half a dozen witnesses were present at the death,and were produced in court,to testify relative to its cause and the circumstances attending it. They are all men of credibil¬ ity and their respective statements of the transaction are clear, and consistent. By the united testimony of these witnesses, it would appear that the party accused of the murder, had, in their presence, leveled and discharged a musket upon the deceased; that he fell and expired in their presence ; and that the firing of the gun, as far as they could judge, must have been the immedi¬ ate cause of the catastrophe. Here, gentlemen is presented to you a case, where the evidence is clear, and what the law would denominate positive. Yet even here, and it is one of the strongest examples that can be stated, a moment’s consideration will con¬ vince us that a verdict of conviction could never be pronounced, but upon the strength of that evidence after all, which results from mere analogy and deduction, and which is not positive, but merely circumstantial or presumptive. Suppose in the case I have ima¬ gined the fact of discharging the musket were admitted ; that the evil and deliberate intention were avowed ; but that some higher degree of proof than that which is derived from mere analogical reasoning, and the opinions of frail, and fallible men, should be de¬ manded at the trial, by way of establishing, beyond all possible doubt, that the act complained of, was the cause of the death ? Is r,t not manifest, that, as to the cause of the death , in the case here supposed, which, on every indictment for homicide, is no less a leading and principal question than the evil intention of the party accused, the evidence would be derived only from the opin¬ ions and judgment of men, and would therefore belong to that same species of presumptive proof, which has been deemed so inconclu¬ sive on the present occasion ? But, gentlemen, the difficulty, the impossibility, indeed of de¬ monstrating, by means of mere direct* and absolute proof, every fact which is essential to constitute the crime of murder, may be still more strikingly exemplified, in a case where the death, in¬ stead of being sudden, shall appear at the trial, to have been pro¬ tracted and lingering. We will suppose the case, when the charge 54 m the indictment is for killing, by the application of poison. It is proved before the jury that when the deleterious drug was ad¬ ministered to the deceased, he was in the full vigour of health, but immediately afterwards, exhibited the usual symptoms which might be expected in such a case. “ He languishes, yet lives,” for weeks and even for months, but dies at last, from the apparent effects of the fatal draught. What man is there upon eartn, who without a doubt, I will not say a reasonable doubt, upon his mind, could pro¬ nounce, in such a case, a conviction of murder ? The poison may be proved to have been deadly, and infallible in its consequence ; but who could have the presumption to declare without a doubt, that it was the efficient cause of the death that ensued ? Who would venture to pronounce, with that entire certainty , which seems to be considered so essential on the present occasion, that the intended victim may not, after all, have perished by the su¬ pervention of some other mortal disease ; that the man whose breath “ w'as in his nostrils,” who at every moment of his exist¬ ence was subject to the sudden and awful visitations of Provi¬ dence, may not have been thus snatched by the express decree of his Maker from the fell purpose of the murderer ? Gentlemen, in this and in other countries, the cases of the description here alluded to, are not by any means of unfrequent occurrence ; and yet it was never imagined that the reputed mur¬ derer could escape from justice upon any doubts or speculations of the nature here described. In the case just supposed, the judgment of the jury is aided at the trial by the skill, and experience of the physician ; the nature of the poison is examined, its usual effects on the human constitu¬ tion explained, and by this mere process of deduction from rea¬ soning aod analogies, the mind becomes as fully convinced, (not however without the possibility of error,) as to the cause of this death, as though the evidence of the fact were direct and positive. In a word, gentlemen, the legal principles of evidence, in crimi¬ nal and even capital causes, notwithstanding the multitude of cases which have been read to you from the books, and all the ingenious reasoning of counsel, with the view of intimidatingyou on this sub¬ ject, are by no means, essentially different from such as are ap¬ plicable to mere questions of property, or any common Concern between man and man. In all cases, whether civil or criminal, the decision of a jury should be the result of careful consideration, the expression of a clear, honest, unhesitating opinion, according to a manifest preponderance of the evidence ; and more than tliis, cannot be expected of those to whom belongs the determination of any fact before an earthly tribunal. Gentlemen, 1 have heard it stated, and from my own observa¬ tion of the visionary scruples, which have sometimes been excited by the power of eloquence in a capital trial, I am induced to be¬ lieve the fact, that a juror has been known to favour an acquittal in such a case, not because he could doubt the guilt of the accused but because, as every thing was uncertain, he had distrusted his 55 own capacity to form a correct judgment upon the question.—^- Permit me to say, that, however chimerical and preposterous a hesitance on such grounds, may seem to be, it is not more so, in my own view of the subject, than that a doubt should be enter¬ tained, with regard to most, and indeed all the material facts which I have attempted to establish before you, on the present occasion. Having submitted to you these preliminary observations, which in reference to the whole scope and bearing of the arguments on the other side, have appeared to me, if not necessary, yet as being seasonable and appropriate, I will now proceed to the immediate consideration of the evidence which has been adduced in support of the present indictment. No witnesses have been sworn and no evidence adduced in behalf of the prisoners ; but the grounds as¬ sumed by their counsel, are— First, that it has not been proved before you, beyond all doubt, that Thomas Baynard, whose murder is charged upon the pri¬ soners, is certainly dead ; that the body of this man not having been found since it is supposed to have been cast into the sea, affords legal ground of doubts as to the fact of his death. Secondly, that from all the evidence in the cause, it is appa¬ rent that the principal witnesses for the prosecution, namely, Onion and Samberson, were accomplices in the crime, if any were com¬ mitted ; and that the testimony of such witnesses is insufficient to justify a conviction. Thirdly, that neither of the prisoners, and particularly Nathan¬ iel White, had been sufficiently identified as principals in the death of Thomas Baynard. Gentlemen of the jury, it will be my endeavor, in the course of my remarks upon the evidence, to refute each of these objec¬ tions ; and I shall be much disappointed indeed, if I do not succeed in this attempt, to your entire and most perfect satisfaction. At the very presentment of the case, as 1 have just stated it to you, it is obvious that the questions which have arisen, are prin¬ cipally, if not entirely, questions of mere fact, upon wffiich it is the peculiar and exclusive privilege of a jury to determine. With re¬ gard to the principles of law which are applicable to the case, I am not aware that there is any material disagreement be.tw'een myself and the learned counsel for the defendants ; and I would take occasion here to repeat, that if you rightly understand, as no- doubt you do, that little portion of law, those few plain and very familiar principles laid down in the half dozen lines that were read to you from one book of authority, at the opening of this cause, you are in possession of all the law that can be necessarv to lead you to a just and correct decision. Are you then convinced, from the evidence which has been giv¬ en you ; are you convinced, beyond any reasonable doubt , that Thomas Baynard the person mentioned in this indictment, was ac¬ tually “ killed and murdered on the high seas, by ail or eitherof the defendants at the bar ? 56 I have perceived, gentlemen, with some degree of surprise, that the very intelligent counsel who have displayed so much tal¬ ent and eloquence in behalf of their clients, have nevertheless, throughout the whole scope of their remarks, entirely miscon¬ ceived my views of the evidence in this cause, by supposing that the fate of this indictment were entirely or materially dependant upon the uncorroborated testimony of the two supposed accom¬ plices, whose credibility, and even competency has been considered so extremely questionable. That the testimony of these witnesses may be important, by way of explanation and confirmation of the presumptions naturally arising from other evidence which has been adduced, I certainly will not, for a moment, deny ; but that it is not the basis of all the proof which has been exhibited in support of the prosecution ; that it is not. indeed, the main and most es¬ sential branch of that proof, will be made I think, to appear to you, in the sequel of my remarks, as clear as a sun beam. The truth is, gentlemen, that from my first acquaintance with the cir¬ cumstances of this cause, I have always considered that the evi¬ dence which would be derived from the testimony of Mr. M’Kim, the owner of the schooner Plattsburgh, and from Captain De la Roche, the gentleman who was despatched to bring that vessel home from a port in Norway, as being the evidence that lie at the foundation of the cause ; and every thing else might be regarded as collateral, and merely auxiliary. In place, therefore, of rest¬ ing upon Onion and Samberson for my principal proofs, as the gentlemen on the other side seem throughout to have considered it to be my intention, I shall be disposed to resort to their state¬ ments merely for the purpose of ascertaining the particular inci¬ dents and circumstances attending a transaction, the reality of which will, in my opinion, be sufficiently established, not indeed with absolute certainty , but upon the strongest probabilities and presumptions arising from the testimony of the other witnesses. In a word I think I shall be able to satisfy you, by the testimo¬ ny of M’Kim and Ue la Roche, that the murder complained of, must undoubtedly have been committed by the prisoners at the bar, and hence, that the testimony of Onion and Samberson are no otherwise essential than as serving to shew the time when , man¬ ner how , and other particular circumstances attending the perpe¬ tration of the deed. So strong, indeed, is this impression upon my mind, with re¬ gard to the nature and bearing of the evidence first alluded to, that I declare to you, gentlemen, that were it not for the tremen¬ dous responsibility which rests upon me ; w r ere it not for the deep interests which you, and every other man in the community must feel, in the cause of public justice, and as to the result of the present trial, I should not, by any means, have considered it an act ot presumption, had I consented to go on with the cause, w ith¬ out the aid of a single word of testimony from either of the two reputed accomplices. 57 Let us then examine the evidence that has been adduced, inde¬ pendently of these men. What is its import, and what the con¬ clusions which, almost necessarily result from it ? From the tes¬ timony of Mr. M’Kim, (one of the most distinguished and respec¬ table citizens of Baltimore,) we learn, that he was the unfortu¬ nate owner of the schooner Plattsburgh ; that in the summer of 1816, she was laden at the port of Baltimore, with a valuable cargo, consisting of about an hundred and twenty or thirty thous¬ and pounds of coffee, and specie, in gold and silver, amounting to upwards of forty thousand dollars, and destined for a voyage to the port of Smyrna, in the Mediterranean; that the command of this vessel, for the voyage, was confided to a Capt. Wm. Hackett; that a person, by the name of Frederick E. Yeizer was her first officer; and Stephen B Onion, one of the witnesses for the pro¬ secution, the second mate ; that the trust of subercargo for this voyage, was confided to an amiable and deserving young man, whom the owner of this vessel had patronized, and befriended, by the name of Thomas Baynard ; the same who is referred to in the indictment, as the’ victim of these murderers !—That this ves¬ sel was, originally, built by Mr. M’Kim ; was an excellent vessel, and unusually well found, and provided for the contemplated voyage That the captain, both mates, and supercargo, were all of them, natives and residents in the state of Maryland ; for a long time, therefore, had been well known to Mr. M'Kim ; that all had sustained unblemished reputations, and that the families and connexions of each of these individuals, were decent and respectable. It appears also, from the testimony of Mr. M’Kim, and from the voluntary concessions of the prisoners, by their counsel, on the trial, that the entire crew of this vessel, at her departure from Baltimore, (including the cook, whose name is not remembered, and Samberson, the cabin steward,) made up the number of fourteen men ; and, that the five prisoners at the bar, together with a person by the name of Stromer, were of this number ;—That the vessel, thus provided and manned, took her departure from the port of Baltimore, apparently, with every circumstance auspicious, on the first of July, of the year before mentioned ;—That Mr. M’Kim, the owner of the schooner had received a letter from his captain, a few days subsequently, ad¬ vising him of the departure of his vessel from Cape Henry, upon the contemplated voyage ; that from that period, to the present day, neither he, Mr. M’Kim, nor any person, so far as he could say, had even seen, either Captain Hackett, Baynard or Yeiser, nor received from either of them, by letter, or otherwise, a syl¬ lable of intelligence. It appears, however, from the statement of this gentleman, that having been apprised, by information received from abroad, of the fate which had befallen his vessel, and of her arrival at an obscure port in Norway, he despatched a messenger, Captain De !a. Roche, whose testimonvis also in the case, for the purpose of 8 58 looking after the property, and bringing it home to Baltimore. The vessel, with some small part of the property on board, was brought back in safety, to Baltimore, by Captain De la Roche, in the summer of 1817 ; and it is testified by Mr. M’Kim, that he received at the same time, or at some time subsequently, from a Mr. Isaacson, the American Consul, at Christiansand, in Norway, remittances of divers sums of money ; amounting to several thousand dollars, purporting to be portions of specia, which bad been found in the possession of the fugitive crew of the schooner Plattsburgh, and taken from them, for the benefit of the owner. Thus far the testimony of Mr. M’Kim, as entirely unconnected with that of the other witnesses. By Capt. De la Roche, we are informed, that he was appoint¬ ed, at the time and in the manner stated by the preceding wit¬ ness, to go in pursuit of this property ; that he arrived in Nor¬ way in the month of April, 1817, and immediately found the ves¬ sel at the port of Christiansand, in the custody and possession of a Mr. Isaacson, the American Consul at that place ; that some small portions of merchandize, together with a few empty coffee bags, were the only articles then remaining on board. He testi¬ fies, also, that the vessel was sound and in good order at this time, having, indeed, undergone, apparently, some very trifling re¬ pairs, but to have sustained, as far as he could judge, no material injury from any marine disaster; that he brought this vessel home to the port of Baltimore, together with a remittance to Mr. M’Kim, of several thousand dollars,from Mr. Isaacson, purporting , according to the statement of this gentleman, to be money, taken from the reputed crew of the Plattsburgh, or resulting from the sale of certain portions of the cargo on board at the time of her arrival in Norway. Such, gentlemen, is the testimony of these two highly respec¬ table and impartial witnesses ; and you will perceive, that it is altogether unmixed with any thing which they, or either of them, could have derived from mere rumor or hearsay, either here or in Norway. The statements they have given you (being indeed the only kind of statement they could ever be permitted to make, in any case, civil or criminal, according to the familiar rules and principles of law) comprise such facts only, as were within their own personal observation and knowledge. What then, gentle¬ men of the jury, is the inference which naturally results, may I not say which necessarily results, from this presentment of the subject ? In my own view of the circumstances, the conclusion is unavoidable, and w’ould so be considered by any reasonable man, not acting in the capacity of a juror, and upon the tremulous res¬ ponsibility of his oath, that a most flagrant act of piracy had been committed on board this vessel ; and further, that several foul murders must, necessarily, have been the precursors of the piracy. We have it from the owner of the vessel, that she was almost new, well provided, and in excellent order, at the time of her de¬ parture from Baltimore ; that her cargo was valuable ; and, mo*! 59 unfortunately, as this may probably have been the root of all the evils which succeeded, had a large amount of specie on board. The vessel was bound to Smyrna, and took her departure from port with every fair prospect of reaching, in safety, the place of her destination. Here let me ask, why she did not arrive there ? Through what fatality has it happened, that instead of proceeding to the Mediterranean, she is first discovered near the Categat; in place of delivering her valuable merchandize and money at Smyr¬ na, why is she found deserted and abandoned at an obscure port in the kingdom of Norway ? That she had met with no marine disaster, nor was compelled by any stress of weather thus widely to diverge from her proper course, is most perfectly apparent from the whole scope of this evidence. The deviation then was voluntary, unauthorized, criminal! It must have been no other than a piratical “ running away n with this vessel, by some per¬ son or persons ; and whether any murders were or were not, su- peYadded to this piracy, it is most certain, that the agents in the transaction, whoever they may have been , were guilty of a high and most horrible offence. Who then, are the offenders ? The com¬ pass of this inquiry is extremely narrow and limited : it is not like the case of some murder which has been committed on land, where we are obliged to proceed in the midst of clouds and dark¬ ness, and to look over the wide world, in pursuit of the offender. If any crimes have been committed, it is to the vessel, to the peo¬ ple on board of her, consisting of precisely seventeen individuals, we must look, in order to detect the authors of the mischief; for it is repugnant to every circumstance in the case, that, while tra¬ versing the ocean, she was overcome by assailing thieves from without, and by them taken, and so suddenly and mysteriously abandoned, with most of her valuable cargo on board, in an ob¬ scure port in Norway. From my own view of the subject,it results then very naturally, almost inevitably, I may say, either that the three officers, Hack- ett, Yeiser, and Baynard, who were on board this vessel, at her de¬ parture from Baltimore; who have never since been heard of, and are not now supposed to be existing on the face of the globe, were principals in the piracy alluded to, or that they were destroy¬ ed, and the whole or part of her crew were, in reality, the pi¬ rates and the murderers. It is, I admit, gentlemen, within the sphere of bare possibility, that the first of these hypotheses is the true one ; it is, indeed, physically, though I should scarcely admit it to be morally possible, that Captain Hackett, his mate, Yeiser, and the other gentleman I have named, all of whom were resi¬ dents in Baltimore, who had there, their families, connexions,and home; who, more especially, were in some measure, the confi¬ dential friends of the respectable owner of this vessel,and bound to him, at any rate, by every tie of gratitude, as well as honor, for the faithful performance of the important trust reposed in them, may, nevertheless, all at once, in some evil hour, without any 60 competent motive, or inducement, indeed, with no motive at ail, that can be imagined, have concerted the base project of betraying the confidence of their friend and employer, and thereby,of commit¬ ting an offence, whose least injurious consequence to themselves, must have been,most inevitably,perpetual exile from their country, their families and friends. It is possible, that these three men, whose character and standing in society, were so respectable at the time of their departure from Baltimore, may, notwithstanding, (such is the depravity of our nature,) in less than one short month thereafter, have corrupted the morals of the honest and harmless men, who were subject to their control, on board this vessel, may have prompted them to co-operate in a foul scheme of piracy,and by word of reward for their services, should have surrendered to their possession, in Norway,the vessel, and the money, and every thing which could have been the motive or object of all this com¬ plication of crime. It is within the sphere of possibilty, ^lso, proceeding upon the unassisted testimony of M’Kim and De la Roche, that the three men 1 have alluded to, instead of having been murdered on the fatal night which has been spoken of, are yet in full life ; that, ashamed of their excessive folly and crimes, they may still be groping in some obscure, inscrutable corner of the earth, from whence their voice has not been, nor ever will, again, be heard, by those with whom they were once acquainted and connected. All this 1 admit, gentlemen, is barely possible ; and if mere possibilities are to have influence against the evidence in this case, it is, undoubtedly, an hypothesis which is deserving of consideration. Permit me,however,to inquire,if there be in it any thing natural or probable ? From the testimony of M’Kim and De la Roche. I feel myself warranted in saying, that the vessel in question, together with all the cargo and all the money on board of her at the outset of this voyage, are fairly, and very satisfactori¬ ly, traced to the possession of the prisoners at the bar, and their comrades of the crew, after her arrival at the port of Mandahl, in Norway. The vessel, most certainly, was found there ; and that the prisoners were there also, is sufficiently manifested in this cause by the circumstance, that they were all speedily apprehended in the vicinity of that place, after the arrival of the vessel. Under these circumstances, I submit to you, gentlemen, if it be not suffi¬ ciently apparent, upon the legal principles of evidence, that the schooner Plattsburgh, with her cargo, found her way to Norway through the voluntary agency of her crew, and that, on the other hand, notwithstanding the promptitude and facility with which information of every sort, and, more especially, the tidings of any marine or commercial disaster are, at this day, wafted from one extremity to the other of the commercial world, never since has there been received, from Norway or elsewhere, a single lisp or intimation tending to shew that the three individuals, who had originally the charge and custody of this very valuable property, may yet be in existence. Upon such a state of the 61 'evidence, I submit to you, gentlemen, if it be not suffi¬ ciently apparent that this vessel, with her original cargo and specie on hoard, must have found her way into Norway through the voluntary agency of her crew ; and that, Hackett, and Yeiser, and Baynard must, by some means, foul or /air, have been disposed of or removed from on hoard, in the course of the voyage. It does seem to me, gentlemen, that this inference is ir- resistable, Consider that there are, at this moment,in this court¬ house, and now before your eyes, not less than seven individuals, more than a moiety of the crew who sailed in this vessel from the port of Baltimore, upon this disastrous expedition ; and who, of course, must be perfectly well acquainted with every incident and circumstance of the voyage. Upon the clearest principles of law and common sense, have I not, then, a right to demand of these men, and of the prisoners at the bar in particular, •where are your officers? Where are the three who embarked with you, whom you engaged to serve and obey, and whose absence is now so mys¬ terious and unintelligible? You are found, virtually at least, in possession of this vessel, of part of the property which was on board of her at your shipment; she was bound to the Mediter¬ ranean—by what disastrous circumstance has it happened, that she is found, and in your possession, at a place so wide of her des¬ tination ? If your officers and your supercargo have, by any ac¬ cident, perished on the voyage, how happens it, that more than two years should have elapsed, and yet not an intimation should be known to have proceeded from you, respecting such a casualty ? It is true, indeed, gentlemen, that the prisoners now standing at the bar, are no longer at liberty to make answer to these ques¬ tions. Their own mouths are now closed; they cannot he per¬ mitted now to speak but by the mouths of their witnesses. It is, however, not less true, that abundant time and opportunity have been afforded them to make the necessary explanations. If, by any peril of the sea, they had been driven,involuntarily, from their course; if, more especially, so singular and uncommon a series of disasters had occurred on the voyage, as the death, by natural causes, of the three principal personages who had so lately the charge of this vessel; how happens it that we hear not a word of the public protests , of the customary statements and declarations being made on her arrival in JN orway, by way of proclaiming and perpetuating the truth of events of so rare and unusual occur¬ rence ? How happens it, that these unfortunate, and bewildered mariners, having been driven by dire necessity and distress, upon the coast of a civilized and hospitable people, were not cherished and protected, instead of being pursued and imprisoned, as fugi¬ tives and felons ? To questions like these, as well as to the many others of like import, which might be put, and which I have a right to put to these men, the answer is obvious ; they were found, on their arrival in Norway, as they are now seen here at the bar, utterly destitute of all those usual means of explanation, which, if innocent, would there , as well as here , /rave been most unques¬ tionably within their power. 62 I feel, gentlemen, that I am warranted in stating to yon, and with no small degree of confidence, that, from the views I have taken of this evidence, it must be sufficiently apparent to every reasonable and unprejudiced mind,even enough so,I think,to justify a juror under oath, to predicate his verdict upon the fact, that neith¬ er Hackett, nor Baynard, nor Yeiser, were on board the vessel at her arrival in Norway; for it is utterly incredible ; it is at va¬ riance, indeed, with every thing we know of nature, or the char¬ acter of man, that if such were the case, not a syllable should ever have been heard of these men, within the compass of the almost three years which have intervened, either in that country or this. Does it not,then,result as a necessary conclusion from the prem¬ ises, that the unfortunate men alluded to, were removed from on board their vessel by foul and unnatural means ? That a flagrant piracy, at least, which stands next to murder on our catalogue of crimes, was committed; and that some, or all of the ship’s crew, must have been concerned in its perpetration ? To my mind, gentlemen, the inference is irresistable. Considering, moreover, the nature of this offence, the place where it occurred, and the physical force which must have been employed in its execution, we have but little less ground for the inference, that a majority, if not the whole of this crew, must have been the parties con¬ cerned. It would be unnatural, it would be preposterous to sup¬ pose, that even the fearless Stromer, or the active and sanguinary Williams, would have had the rashness to attempt, single and alone, an open and murderous assault upon all the officers of the vessel. Bold and intrepid as they are, they would not have adventured on so hopeless, so fearful an enterprise on the ocean, without a pre¬ vious knowledge, and assurance of the general co-operation of their comrades. All this, 1 admit, however, gentlemen, is but mere inference and presumption; and that it differs in denomination, though not, 1 think, in force, from that positive evidence , which the learned counsel for the prisoners, have considered to be so essential to produce a conviction. On the whole, gentlemen, I do contend, that the testimony of the two witnesses, M’Kim and De la Roche, connected as it is, with the intrinsic evidence which is to be found in every part of the case, is abundantly sufficient, in law, to shift the burden of proof upon the prisoners, and to authorise my calling on them, peremptorily and loudly, for satisfactory expla¬ nation of every thing in their case, which may now seem doubtful or mysterious. A piracy, if not a murder, and more than one murder, is brought home to their very door; and it remains for them to show that other wretches, not they, were the perpetrators of the deed. Thus far, gentlemen, my observations have been directed to the mere circumstantial evidence fvhich exists in this cause. By way of demonstrating to you, that the inferences 1 have deduced 03 from it, are correct and irrefragable, I will now proceed to show you, by that direct and positive proof, which has been so frequently demanded by the counsel for the prisoners, in the course of their argument, the time and place, and every circumstance of the murder, which is described in this indictment. With this view, gentlemen, I must call your particular attention to the testimony which was delivered to you by Onion and Sam- berson. First, however, it may be useful, in order that 1 may follow the learned counsel for the prisoners, in the course of their observa¬ tions, that 1 should consider, for a few moments, the question of credibility , and even competency which has been so much agitated in relation to these witnesses. It has been contended, and with a degree of emphasis which may have made some impression upon your minds, that if any crime were committed, the witnesses themselves must have been accomplices in its perpetration; that being accomplices , they have kept back the confession of their guilt; and hence, that the entire mass of their evidence must be rejected. Gentlemen, it is extremely easy to advance, but it would be difficult indeed, to substantiate, in point of fact, by the slightest color of evidence which has appeared in the cause, the truth of this position. With regard to Onion, it has been proved to demonstration, not by his own single testimony, but by the evidence also of Samber- son, and by every circumstance in the case, that in place of being confederate, he was marked out by the murderers to be one of their victims. He was an officer of the vessel, and it is evident that at least every officer on board, was included in the death roll of these murderers! It is not from the declaration of Onion alone, that we derive the proof of the deadly assault that was made upon him, or the wounds he received. It is not from his Single statement, that we are informed of the almost miraculous manner of his escape, the singular place of his concealment, his supplication for mercy, and the terms upon which the prayer of the petition was, at last, granted by these assassins. It is not upon the strength of his testimony alone, we are to believe, that while yet trembling in his hiding place, with the most fearful ap¬ prehensions of his fate, one of the prisoners at the bar, was standing sentinel, with his musket, by way of guarding every avenue against escape; nor that the same inhuman monster was heard to call on his comrades “ for the halliard to rouse the bugger” from his position. Permit me to remind you, gentlemen, that all the circumstances I have enumerated, with many more which I might mention, of like signification, although they were stated by Onion, were also stated by Samberson, whose innoeency and credibility, as I shall presently attempt to convince you, is absolutely beyond the reach of all suspicion. It is also in evi¬ dence, from the testimony of both the witnesses, that it was the watch of Onion below, and be was sleeping in his birth, when the 64 false alarm was given by Williams, to serve as a signal for com¬ mencing upon those scenes of blood and slaughter, which so spee¬ dily ensued. Are there then, gentlemen, any, and what other circumstances in evidence before you, that should lead you even to suspect this man, of confederacy in the murders ? It is stated to you, and in¬ deed, the fact is openly avowed by himself, that he received, not however without some degree of hesitancy, his full share of the booty which was divided among the crew; that in obedience to the suggestion of Stromer and of Williams, who were now his superiors, he was compelled to act in his former capacity of second mate, under the newly organized government which suc¬ ceeded the insurrection ; that he continued to assist, as heretofore, in the navigation of the vessel; that he altered the papers, and acted with the others in attempting to deceive the officer by whom she was first boarded, at the first moment of her arrival at the obscure port of Norway, With regard to the circumstances of the voyage, he has also confessed to you without reserve. But all this, to take the whole of his confession , (if so it may be deno¬ minated,) together, appears, most obviously, to have been but in compliance with the dictation of those who had spared his life, on condition of his secrecy and obedience. What then, gentlemen, is there in all this, which can authorize you to infer, nay even to suspect, that he may have been confederate with the cut throats ? Had all this apparent subserviency to their purposes been volun¬ tary, even after the fatal deeds were consummated I will have the frankness to admit, that it would have affected, very deeply, his credibility, on the present occasion. As being accessary after the fact , his offence, in such case, would indeed have amounted to no more, by the laws of this land, than a mere misdemeanor; yet I will admit that even a connexion like this, with the princi¬ pal offenders, in relation to crimes of such atrocity, might very properly be considered as the evidence of such degradation, both of feeling and principle, as to render him, in any case, unworthy of your confidence. But, gentlemen, I beg you to recollect that all these injurious suppositions with regard to the standing of this witness, are mere¬ ly gratuitous, and scarcely to be indulged, even in the way of hy¬ pothesis. He tells you, gentlemen, and from every thing which appears in the history of this case, l submit to you if the declara¬ tion be not, in every respect, probable and consistent with human nature, that from the bloody night of the 23d of July, until the moment of his imprisonment at Copenhagen, and his subsequent deliverance from the fends who had surrounded him, the whole course of his conduct had been influenced by the terror of their displeasure. But it is objected, that he participated in the plun¬ der. Berrnit me to. inquire, w hich of you, gentlemen, under the circumstances that have been described, would have dared to do otherwise ? From the testimony of the witness, it would, how- 65 ever seem, that he did not omit to express his scruples on the oc¬ casion alluded to ; and even had the indiscretion to propose, as a testimony of his thankfulness for the life that had been spared him, to surrender his portion of the booty, for the benefit of others, whose crimes had acquired it, and who, therefore, had higher claims to its enjoyment. Permit me to ask again, which of you, gentlemen, with the bloody Stromer and the eagle-eyed Williams perpetually before your eyes, and standing as the inquisitors of your very thoughts as well as actions ; subject as a slave to their control, and upon the wide and trackless ocean, would have had the fortitude, may J not say the rashness, to betray such misgivings ? For my own part, I am not ashamed to avow, in the presence of this honora¬ ble court, in your presence, and before the multitude who hear me, that on the occasion alluded to, and in the midst of all the terrors of such a scene, as has been described, I should not have had the courage to manifest the slightest symptom of repugnancy. I should, seemingly, have gone all lengths with these blood hounds ; I would have protested,again and again,my allegiance to their cause,and not until I found myself completely beyond the reach of their daggers,should I have had the heart to proclaim their male- factions. With the exception of that single jnstauce of indiscre¬ tion, that has been alluded to, which serves but to shew that the witness had as much honesty of intention, and a little more forti¬ tude than most men would have manifested on a simdar occasion, he appears to have acted throughout, on the principles I have spoken of, on the principles, in fact, which are implanted in our nature, and which no man could disregard, who is concerned for the preservation of his own safety and existence. The same ob¬ servations are applicable to the conduct of this man, after his ar¬ rival in Norway, and when, (judgiug from what would have been his condition, under similar circumstances, in a country like this,) it may possibly be supposed, that he could no longer have been actuated, or restrained, by the influence of fear. On this head, gentlemen, it is of some consequence, that you should again call to mind, the explanation of this witness. The arrival of the vessel was at an out port, but very thinly inhabited. He was a stranger to its population, its language, its laws, and its govern¬ ment. He was once only on shore, and then he was accompa¬ nied,and every footstep was traced,by the same ferocious assassin, who had spared his life, on the express condition of secrecy and fidelity. Here then, gentlemen, it would have been evidence, rather of madness than honesty, had he proceeded, even if he had the physical power of doing it, (which is not a little question¬ able) to the disclosure of his secret. He might, indeed, have made his declaration, with less dread of the consequences, during his fortnight’s residence in the city of Copenhagen. Even here, however, he was a stranger to the government and the laws. Still he was accompanied, and, without doubt, carefully overlook- 9 66 ed, by two at least, of his most savage and vindictive associates. If he were here, beyond the reach of immediate assassination, may it not also be said, that he had yet reasonable ground of ap¬ prehension, that lie might suffer from conspiracy and contrivance ? Had he entered his complaint before the magistrate, the truth of his statement might, and perhaps must have been left to depend on the faith of his own uncorroborated testimony. A plurality of voices would have been against him, and it was by no means im¬ probable, indeed the subsequent proceedings at Copenhagen, have shewn the correctness of the supposition, that the accusation he should make against others, would instantly be retorted, and, perhaps, fastened upon himself. Under all these perplexities, I submit to 3 - 011 , gentlemen, if the resolution which this witness as¬ sures you he had formed, of reserving the promulgation of his secret, until his return to America, is a circumstance in any degree unnatural, or inconsistent with the purest intentions? It may not, indeed, have heen the course which a man of much more intel¬ ligence, and in a higher grade of life, would have pursued on the occasion; but does it necessarily imply, in this case , a disposition to favor the commission of crime, or to screen the perpetrator from detection ? In my own view of the subject, the situation of this witness, even when certain protection would, as we know , have been afforded him in the great capital of Denmark, was, nevertheless, for the reasons l have stated, in no small degree, critical and embarrassing ; this also entitles him to the most favor¬ able interpretations of his conduct. It is, moreover, a circumstance, much in favor of this witness, that upon his first examination, before the magistracy of Den¬ mark, his disclosures were voluntary, full, and without the least appearance, (as far as we are informed) of a disposition to con¬ cealment ; and still, more especially, that all this occurred, when he had reason to suppose that he was the first to disclose the hor¬ rible scenes of which he had been a witness. Where, then, gen¬ tlemen, is the ground of that position which has been so confident¬ ly assumed by the counsel for the prisoners, that the principal witness to convict them, is an accomplice in their guilt ? With re¬ gard to the remaining witness, Samberson, whose testimony you have heard, little has been urged, and most surely, nothing has been proved, that can lead you to suspect, that he, also, could have been confederate with these pirates and murderers! That he was onboard the vessel, and bv construction, therefore, pres¬ ent. at the commission of the crimes; that he was permitted to live, and (most fortunately for the cause of public justice) to re¬ tain the power of telling his artless story before you, on the pres¬ ent occasion, when his life was once at the mercy of these wretch¬ es, and was spared, seem to be the only circumstances to counte¬ nance the supposition, that he may, possibly, have been accessa¬ ry to their crimes. But, gentlemen, how happens it that this man yet lives; that his body also was not mingled with others 67 which were committed to the waves ? With reference to all tln^ evidence in the case, the answer to this question is plain and ob¬ vious. He was viewed on board the vessel, as you must have re¬ garded him here, a humble, harmless, inoffensive man. I must not, however, pay such unmerited compliment to the heart of these monsters, as to admit for a moment, even in the way of supposi¬ tion, that it could have been for their regard to any qualities like these, that his lips also, were not sealed in death on the fatal night Be assured, gentlemen, it was not for his innocence, nor for his harmlessness, but for his utility and future services, that the life of this man was neither threatened nor assailed. He was, it seems, the cabin steward, a mere servant to the officers, on board thisyessel. His birth and place of residence was the cabin ; and the attendance of such a man would be useful, and almost indispen¬ sable to the murderers, who were, now, in stately authority over the ship. He belonged to no watch, and had no intercourse with the mariners, either in relation to their labors or their pastimes. On the other hand, in regard to the officers of the ship, he was “in double trust,” as their servant and their friend, “ who ’gainst their murderers would have shut the door, not be(ir the knife himself. ” He was precisely where he should have been, in his birth, and asleep, (if you believe the testimony of Onion) at the dread hour of mid¬ night, when the scene of foul murder was commenced. Gentlemen, with circumstances like these before us, permit me to inquire, would it not be an outrage upon the very front of truth, were we to believe, or even to imagine, that this humble man may have concurred in thought, or in deed, with the views of these as¬ sassins ? The idea is monstrous and cannot be endured. With respect to this witness also, it has been urged upon you, that his acceptance of a share in the common plunder of the ves¬ sel, is evidence at least, of his disposition to sanction and conceal the crimes by which it was acquired. On this head, gentlemen, I have nothing to add to the explanations which have already been givqn you in my answer to ;a similar suggestion, (I will nof call it argument) which was pressed against Onion. I must pray you, however, to remember, that if Onion, a man, evidently of some strength and intelligence, be excusable, on the ground of terror and duress, how much more forcible is the apology for the shiver¬ ing, powerless mortal, who was the mere slave of the monsters. It is, moreover, a circumstance which must not escape notice, that the imputation of any improper concealment of the crimes, is entirely inapplicable to this case. From the whole course of the evidence, it is clear, beyond doubt, that the first develope- ment of the bloody scenes on board the Plattsburgh, proceeded from him, and that there never was a moment that the disclosure was kept back, when it could have been made, but at the peril of his life. What then, gentlemen, is the ground, upon which both or eith¬ er of these witnesses, can fairly be treated in this cause, as ac~ V> 68 complices or accessaries, before or after the murders were perpe¬ trated ? I answer with confidence, there is not a pretext, founded upon the evidence, for doing them such injustice. But, gentlemen, if, in opposition to every presumption in the case, I were to admit in its utmost latitude, the position which has been assumed, that both of these witnesses were, in truth, leagued in voluntary confederacy with the murderers, so far only as to secure the booty, and to screen them from detection ; still 1 should have authority to say, and to predicate the assertion, upon the clearest principles of the law, that the circumstance could not, essentially impair, much less destroy, as has been contended, the credibility of their testimony. If they are accomplices, they are, nevertheless, accomplices who are testifying, in this court , upou very different terms and conditions , from those which are required by that musty and exploded doctrine of approvement, which has been so largely explained to you, from the books, by the gentle¬ men on the other side. It is surely, not in this case, as in the case of the approver, that the remuneration of his testimony, is the forgiveness or remission of his own transgressions ; and, that his own life may be spared, if by any means, foul or fair, by his truths or his perjuries, he can make sure of an equal victim, by way of feeding and appeasing the vengeance of the law. Gentlemen, we have much reason to be thankful, that this vile and most mischiev¬ ous course of procedure ; this barbarous remnant of antiquity, was long since dismissed from the code of the nation which engender¬ ed it; and still more, that it never did, and never will, find a place in our own. To you, gentlemen of the jury, who are men of information and intelligence, it may be superlluous to remark, that there is no branch of our government, however elevated in power, which has the prerogative to make any previous stipulation with a witness ; to give any assurance of pardon or indulgence, by way of consider¬ ation for his testimony ; of course, no such assurance can have been hdlden out! to the witnesses, on the present occasion. It is, therefore, most certain, and I have authority for saying, that they have, themselves, perfect knowledge of this fact, that their fate is as entirely unconnected with the presefit trial, or its results, as is yours or mine, or anj' other individual's in this court house. What then, gentlemen, is the predicament of these witnesses ? If they are accomplices, it is, nevertheless, clearly the law of this land, that they are still competent to give testimony. There is, indeed, a sentiment, which has frequently been expressed by judges, in trials of this nature, that it would be “ unsafe to convict the accu¬ sed upon the uncorroborated testimony of a single accomplice.” I admit, without hesitance, the soundness of this principle, and am entirely content, that it should prevail, and have its full force and effect in application to the cause now on trial. But it must be remembered, that this is not a case of a single accomplice ; much less is it a case, wherein the testimony of any single -witness is without corroboration. 69 Touching this subject of accomplices, there is yet another posi¬ tion which has been advanced by the counsel for the prisoners, to which also, I will yield my entire approbation ; and would have done so, indeed, if the gentleman had even omitted to remind me of a few observations, in relation to this subject, which I had the honor to submit, at an early period of my life, to another jury, on an occasion, similar to the present. It is a position, which I agree to be correct, and which appears to be perfectly well founded in reason and common sense, that when a witness, in the course of his examination, shall have disavowed all participation in the guilt of a principal offender, and shall afterwards be proved, by other evidence than his own, to have been, in reality, an accom¬ plice in the crime, the entire mass of the testimony, thus mixed, and contaminated with a falsehood, ought, unquestionably, to be rejected. But, gentleman, let us consider, for a moment, if it be possible that the credibility of Onion or Samberson can suffer deterioration from the application of this principle. With reference to every known fact and circumstance in this case, I would ask, if there be the slightest ground for suspicion that these men were more deep¬ ly or intimately connected with the murderers, than they were willing, frankly and openly to avow from the stand. Were they, or either of them, voluntary agents in the horrible scenes of the 22d July ? In a former part of my argument, I have already at¬ tempted to shew you, and I flatter myself I must have done so, effectually, that this is not only improbable, but scarcely within the sphere of moral possibility. What, then, is the full amount of their offending ? They were, in some measure, the partakers of the spoil. This they have avowed, confessed if you please, and at the same time have ex¬ plained to you the motives, by which they were actuated. It is always to be remembered, moreover, as incontestible proof of the fullness of their declarations, that the only evidence of this last mentioned circumstance has been derived, and could alone have been derived from the voluntary confessions of these wit¬ nesses. Admit, therefore, for the sake of the arguments, that both these witnesses have, in reality, appeared before you on the footing of accomplices ; that such is the natural and necessary conclusion, resulting from their statements.; yet it must never be forgotten, that it is from their own free , unsolicited , voluntary declarations, that you have derived, or ever could have derived, this knowl¬ edge of their guilt. What then, gentlemen, in a legal or moral point of view, is the predicament of these witnesses, on the score of credibility ? In the very fullness of their heart, they have con¬ fessed to you every fact and circumstance, which was necessary to unfold to you the whole extent of their criminality. Gentle¬ men, I do contend, in behalf of these men, that, in the sight of Heaven, they are by that confession, and by the contrition of 70 which it is the evidence, completely re-established in all the or¬ iginal purity and innocence of their character. We have it, from much higher authority than the mere speculations of frail and fal¬ lible man, that the confessing and repentant transgressor, stands at least upon a level, in point of moral excellence, with him who hath not offended. The very thief on the cross was forgiven: and from the word of truth itself, it is delivered to us, that “joy shall be in Heaven over one sinner that repenteth, more than over ninety and nine just persons who need no repentance.” If then, gentlemen, you are satisfied, and it appears to me im¬ possible that you should entertain a doubt of this fact, that Onion and Samberson have fully and honestly stated to you, the whole extent of their connexion with the prisoners, after the tragical scenes on board the vessel were closed, I repeat, with confidence, that there is nothing in the case to impeach their credibility, or to justify a suspicion, as to the truth of other parts of their state¬ ment. But, gentlemen, the counsel for the prisoners have slightly touched upon some other grounds against the credibility of these witnesses, which I will barely notice, but will not consume the time in commenting upon minutely. Not only the matter of their testimony, but the very manner of delivering it, has been the theme of some comment and objection. With regard to both, it is sufficient that I appeal to vour recollections, in reference to the mere question of their veracity. It lias however been objected, that several discrepancies and contradictions have appeared from a comparison of these two witnesses; it is unnecessary for me to advert to the particular instances that have been mentioned. "W ith respect to them all, it is sufficient to remark, that they re¬ late, without an exception, to some trifling, immaterial circum¬ stance of the cause; that they are such as are always to be ex¬ pected iu the course of human testimonju In fine, that they are such as only serve to shew that there can have been no concert or combination between the narrators ; and, concurring as they do, most perfectly,in their respective statements of the principal facts, the circumstances alluded to, serve to shew',that they must,necessa¬ rily, have been both guided in their course by the light of truth. It is furthermore to be remembered, that since the first appre¬ hension of these two witnesses, in Denmark, nearly three years ago, they have seldom, perhaps never, had an opportunity of con¬ versing together. Here, also, they have been confined in sepa¬ rate apartments; they have been examined and rigorously cross questioned, here, in this court, separately, and not in the pres¬ ence ot each other. I appeal to you, gentlemen, under all these circumstances, if any litile variances which may have appeared in their statements, ought rather to go to their discredit, than to be received as affording additional confirmation of their truth and veracity ? 71 What, then, gentlemen, if you have confidence in the truth of these witnesses, is the substance and effect of their testimony ? What is it, indeed, but the most complete and perfect confirma¬ tion of all those presumptions which had already arisen in this cause, from the statements of M’Kim and De la Roche, upon which I have heretofore had occasion to comment so largely ? You are, however, now relieved from the necessity of resting solely upon presumption; the evidence is now direct and positive, that Thomas Baynard, the person mentioned in this indictment, was most basely murdered, at the time and in the manner therein alleged; and secondly, that one and all of the prisoners, were most unquestionably concerned in the perpetration of this foul and most nefarious deed. It is my business to establish, to your entire satisfaction, by force of all the evidence which is before you, the truth of these propositions. First, then, gentlemen, is it true that Thomas Baynard, the person alluded to, is actually dead; for even this point, which in its order, stands at the very threshhoid of this cause, is deemed by the counsel for the prisoners, as being not entirely exempt from its difficulties and its doubts. What, then, is the evidence, in relation to this subject ? With regard to that portion of the proof which is founded on the presumptions here¬ tofore alluded to, it cannot be necessary for me again to remark. Without the aid of inference or presumption, the fact is now es¬ tablished, that the body of this supposed victim was seen upon the deck of the schooner Plattsburgh, breathless, and to all ap¬ pearance lifeless, on the night of that day which is mentioned in the indictment. That while lying in this situation, it was taken from the deck by two of the prisoners at the bar, Williams and Rog, and thrown into the sea. He was never afterwards seen on board the vessel; nor does it appear that, from that day to this, any man has seen or heard from him, as being alive on the face of the earth. The vessel, at the time of this occurrence, was upon the ocean, and at the distance of several hundred miles from any land. No other vessel was then in view, nor was any one seen for several days preceding or subsequent to the period al¬ luded to. Such, gentlemen of the jury, are the circumstances, upon which the allegation is founded that this man is dead. Per¬ mit me to inquire, can there be a doubt of the fact ? It is true indeed, that the body of the sufferer was not followed to his death bed in the ocean, by either of the witnesses, who have spoken on the occasion. No one has declared to you, upon the sanctity of an oath, that he watched the process of that suffocation which is described in the indictment, or witnessed the very last gasp of the deceased. It has, therefore, been insisted on by the counsel in the defence, and with a degree of earnestness that would denote their sincerity in the objection, that our evidence of the death is yet incomplete. The wide ocean must be ransacked, the dead body must have been discovered, or it would be unsafe and presumptu¬ ous to convict for the murder. Such, gentlemen, is the argumen 72 of counsel in the defence; and they have gravely opened their books of authority, and almost overwhelmed you with their pre- cedents and their cases, in order to establish the validity of this doctrine. Gentlemen, the occasion is too solemn to admit of any pleasantries in replying to such arguments. I must, however, be permitted to remark,that if the gentlemen had undertaken to recite before you,from any of the mere tales of romance, some marvellous instances of perils and escapes, their quotations would have been quite as appropriate, and to my view, of precisely as much weight and import in the cause now on trial, as those they have cited from the folios of the law. It is to be observed, moreover, that mere cases , which result in no decision of a principle , however they may be interspersed with solemn sayings and suggestions from the bench, are altogether useless, and worse than useless, on an occasion like the present. They may serve, indeed, to inform you, that a man has been cast into the sea, and was not drowned ; that many men have been lost , and were found , even after all rea¬ sonable hopes of their existence were extinguished; but, they can afford you no light, and no information on the question, whether the man raferred to in our indictment be living or dead. But the learned counsel for the prisoners, aware of the almost insurmountable difficulties, and pressure of their case, have at¬ tempted, in the loftier flight of their imagination, to bring into exercise still more extraordinary means of stirring up a doubt in your minds, concerning the reality of the death here alleged. They have even reminded you of the miraculous escape of the great prophet of antiquity from the fury of the lions; and have ventured to suppose that in the instance before us, the same “ pre¬ serving angel may have walked forth upon the face of the wa¬ ters, and snatched a drowning man from the deep.” Alas, for such examples, the age of miracles has ceased ; the messengers of God do not now, as in 41 olden time,” descend from their celes¬ tial abode, to mingle in the concerns of man here below. In latter times, the laws of nature are left with us, undisturbed, and causes and effects flow on regularly, with undeviating order and certainty. So sure, then, as that the life of Thomas Baynard , was not pre¬ served by a miracle ; if his body as well as spirit, as, in one memo¬ rable instance that might be mentioned, w r ere not literally trans¬ lated, that fatal night, from its abiding place on earth, to another and a brighter world, so certain is the conclusion, that he is not now existing. Presuming then, gentlemen, that the death of Thomas Bay¬ nard has been entirely established before you; and that he was killed on the night before mentioned, 1 will now proceed through the remainder of the observations which I am to submit to you, to demonstrate, as 1 have confidence 1 may do very clearly, that one and all of the prisoners at the bar, were his murderers. 73 Here, gentlemen of the jury, it must be remembered, that, virtually at least, there are now upon trial before you, not one only, but five distinct indictments. The prisoners having pleaded severally , each has the privilege, without doubt, to demand that his own case shall be considered upon separate and independent grounds; and it is equally clear, that by your verdict, you may convict, or acquit, one or all, according to your views of the evi¬ dence. Hence it has become necessary, that I should present to you, in some degree, an analysis of the principal and most material evi¬ dence in the cause, in order to shew you such parts of it, as are more particularly applicable to the individual case of each of the defendants. Having availed myself of the little leisure, which was allowed me, during the short interval since the adjournment, in selecting and arranging some of the most prominent circumstances which have appeared in the case, 1 am now enabled to perform this task, in a manner, which may, I hope, be clear and satisfactory. In this last stage of my observations, it would not be less tedious than useless, were I to attempt a recapitulation of all that evidence, by means of which you have been led to a knowledge of the horrible and most diabolical scenes which occurred on board the schooner Plattsburgh, on the fatal night which is re¬ ferred to in the indictment. That three foul murders, attended with circumstances of most unparalleled atrocity, were actually perpetrated on that occasion, by some person or persons belong¬ ing to the vessel, I will assume as a position, which, by this time, is placed beyond the reach of incredulity. It only re¬ mains for me, therefore, to point out to you, which 1 shall endeavor to do, with as much brevity as the nature, and great importance of the subject will admit, a few particular facts and circumstances in evidence, as applicable to the case of each of the prisoners separately, tending to confirm the strong presump¬ tions of guilt, which have heretofore been considered as existing against him. With this view, gentlemen, 1 shall consider the case of each individual, in the order in which they are named in the indict¬ ment, and which, upon examination, will not, improbably, be found in conformity with their respective degrees of turpitude, or, rather, of activity, in the perpetration of these crimes. First, then, let us look at the predicament of John Williams. That this man was on board the vessel on the occasion alluded to, is beyond all controversy; that he was a considerable person¬ age on board, in point of standing and influence with the crew, would be sufficiently obvious, from what you must have remarked of his appearance and deportment at the bar, even if you were without that entire confirmation of the fact, which is afforded you, by the whole course of the evidence. To go back to the driarin of his connexion with the vessel. I shall presently have 10 74 occasion to remind yon, that, from several circumstances in the cause, there is no small ground for the belief, that the very pur¬ pose and object of his shipment on board, was to commit the crimes of which he stands accused, and thereby to possess himself of the plunder, which unhappily, was eventually obtained. There is, at any rate, much cause to suspect, from several circumstances in the case, that the horrible project was engen¬ dered by Stromer and Williams. It was Williams, most certainly, as you learn, distinctly, from both Onion and Samberson, who, in the early part of this voyage, if he did not project, was, at any rate, the principal agent in at¬ tempting the execution of the hellish design, of killing, by poison. It was Williams, who, with the thongs and ropes in his bosom, would have been the executor, not, / / resume, the inventor , of that milder form of piracy, which was once in contemplation, to bind the officers, and leave them upon an island. Above all, gentlemen, and here I must desire you to rivet your attention upon the circumstance I am about to mention; it was this same Williams, who, on the night of the massacre, according to the explicit testimony of Onion, gave out the false alarm of “ sail ahoi!” thereby, to bring his victims into one group upon the deck, for the obvious purpose of a more easy and convenient immolation ! It was Williams, (if you confide in Samberson,) who was one of the two, who were specially employed, in consigning the wounded , and half mordered body of Baynard, to the mercy of the waves! Still thirsting for more blood.it was this same sanguinary mon¬ ster, who, in the midst of that scene of horror, which has been described to you by the witnesses, seized Onion by the breast, “ and called to his comrades , come kill him and who, at the same moment, breathed forth his dreadful imprecations, and threatnings of death upon Samberson, as the penalty of disobe¬ dience. It was Williams, moreover, who, in consideration, no doubt, of his superior pretensions, on account of his services and activity', in putting aside the lawful authority of the ship, assumed, or was assigned, to be second in command, under the newly acquired government; and, that his influence, at least, at the first moment of the achievement, may even have been superior to that of the nominal commander, Stromer himself, we have much reason to infer, from the circumstance, that it was the voice of Williams, which pronounced the decision, the ship is ours, “ We'll stick her for A'orwat/ /” It was Williams also, who directed and assisted in the altera¬ tion of the papers, and for the residue of the voyage, assumed the name, and caused it to be inserted, of the murdered Yeiser. Lastly, it was Williams, who, when the “ garments were part¬ ed,” that had belonged to the three victims, shared them with Stromer, the only man on board, whose claims to these spoils of 75 rapine and blood, were deemed to be on an equality with his own.! Thus far, gentlemen, it will be perceived, if you remember, minutely, the evidence in the case, that I have proceeded in my enumeration of circumstances, as applicable to this man, upon the most direct and positive testimony of Onion or Samberson; and in most instances, both ; and that all 1 have yet stated, has refer¬ ence only, to such of his acts , as happened to have occured with¬ in the immediate sphere of their personal observation. It is, however, fit and proper, before I dismiss from my mind the con¬ sideration of the evidence, as it bears upon this ringleader of the ruffians, that I should call to your remembrance, some of his say¬ ings , or rather boastings , subsequent to the catastrophe, in relation to the fell deed he had achieved. You must remember, gentlemen, I, surely, shall not forget, the circumstances which were related by Samberson, of that horrible repast , that festival of death , where all the fiends were gathered together, on the first morning which had yet shone upon the dark deeds of the preceding night. You will remember the course of conversation, and remark, which prevailed on the occasion ; when each man was amusing his comrades, with as much humor and pleasantry, as he would have shewn, in recounting his sports and his pastimes, by recitals of the hellish exploits he had so recent¬ ly performed. It was a meeting indeed, resembling more a congregation of devils, than an assembly of beings wearing the form and feature of man. Gentlemen, it is to the remarks, which were made on this horrible occasion, or rather, to what fell from the unhallowed lips of Williams, in particular, (for I would not stir up your feelings of abhorrence, by a repetition of more, on this subject, than may be useful, with a view to public justice, and the merits of this cause,) that I am now desirous, for a single moment, to call your attention. With regard then, to Williams, it will be recollected, that he boasted , not confessed , that it was he who first levelled the captain upon the deck ; and he also, who threw the body into the sea. It is also to be noticed (though the circumstance is almost too monstrous to be endured, even in imagination,) that the compan¬ ions of this ruthless savage, were regaled, on this occasion, not merely with the fact of this achievement, but with descriptions also of the piteous look and supplications of the victim, and other horrid incidents which accompanied its execution. I could re¬ mind you, also, of several other circumstances of not much less horrid aspect ; such as the history he gave to his companions of his former life and experiences; his murders,his trials and escapes ; but I forbear. Nothing surely need be added to show you the deep, unparalleled, unfathomable wickedness of this man. 1 have been thus minute, in remarking upon the circumstances which relate only to the case of Williams ; not because I could imagine that any single item, in the black catalogue which has been presented to you, would have been deemed insufficient to 76 render certain his conviction ; but because I have supposed it might be salutary,in reference to the end of all public prosecution and pun* ishment, to exhibit the odiousness of crime, by an example almost without a parallel in judicial history. With regard to the circumstances which have appeared in ev¬ idence, as applicable to three of the remaining prisoners, I shall be extremely brief; contenting myself, indeed, with a simple statement of the fact which I would have you consider , and leave you to make your own inference and comment. The person, next in the indictment to Williams, and next to him in guilt also, as I have supposed, is John Peter Rog. With respect to this man, the circumstances which l have to mention are few. comparatively in number, but, to my view, they are preg¬ nant with much import and signification. You will remember the circumstance which was stated to you, by Onion, as to an as¬ semblage of the assassins which was convened in the cabin, and which the witness has denominated a council of war, on the night of the insurrection, when the subject of the deliberation was the life or death of this witness. 1 pray you, also, to recollect, that John Peter Rog was one of these fratricide judges , who, in less than half an hour after three foul murders were committed upon the decks, sat and deliberated and gave his voice in the sentence which was passed on the occa¬ sion. It was Rog also, let me remind you, who according to the dis¬ tinct declaration of Samberson, was the only assistant of Williams, in throwing overboard the body of Baynard ! You will remember, also, that it was this same Rog who boast¬ ed of having assisted in the captain’s death, by an implement pro¬ bably of his own device, a stone in a stocking. It was,Rog, more¬ over, who, “skipping with exultation upon the docfc; boasted of the great exploits which the “ little yankee” had ^achieved.” Such, gentlemen, are the mere auxiliary proofs against this pris¬ oner, as they have been stated or corroborated by the testimony of both Samberson and Onion. As to Frederick, the next in order upon the indictment, it must he noted, that, according to the explicit declaration of Onion, it was this man, most particularly, whom he distinguished close be¬ hind him on the deck, at the moment of receiving the first blow upon his head, as he has described; and, except that this stroke was not fatal, have we not imuch reason to infer, that it was occa¬ sioned, not bv the “ flapping of the boom” as was supposed, but by no other implement than that same “s/Mie in the stocking,” which, in the perpetration of one other murder, this wretch was heard to boast of having employed so dextrously. It will also be recollected, who it was, and that it was no other than Frederick, who gave the word that first led to the lurking place of Onion ; and that it was he also,who called “ for the hall¬ iard to rouse the bugger' 1 from his concealment: that he demanded 77 ihe keys of Samberson, 'at the very moment when the work of desolation was completed; that Frederick, moreover, was one of the judges, who sat in consultation upon Onion's fate, and stood sentinel , with his musket , before the bread-locker, until the sen¬ tence of acquittal was pronounced ! To cap the climax of this evidence, we have authority to be¬ lieve, if we can rely on the veracity of our witnesses, that this was not the first instance of murder and piracy in which he had been engaged. That in a moment of triumph and exultation at the recent victory, he had the effrontery to boast, that this was only the fifth enterprize of the kind, to which he had been a party. As to Peterson, I have but little more than a single observation to submit to you; that he was on deck, and upon his watch,when the scene of blood was commenced, is manifest upon the evidence ; that there is not a single circumstance of alleviation in his case is not less apparent. This would be enough to establish the guilt of this man, as a confederate. But, alas, there is one damning circumstance in the cause, which must give to this monster, even a pre-eminence in cruelty over all the rest of his vindictive as¬ sociates. He, also, was a member of that infernal tribunal in the cabin,who were to adjudicate upon Onion,and it was his voice alone , which was in favor of his death !! I come now, gentlemen, to the case of Nathaniel White, the last named of these defendants ; and here, I will have the frankness to admit that his case is, undoubtedly, entitled to separate, and very careful consideration. It cannot be denied, that much of the evidence which has already been commented upon, and which, in every possible view, must be considered so conclusive, and so fatal in its operation upon his associates, is, in some measure, lost in its application to him. So true is this, gentlemen, that upon my first, which was, however, a very cursory view of the force and bearing of the testimony, as it was delivered in by the wit¬ nesses, at the opening of this cause, I had even entertained some portion of doubt as to his full participation in the guilt of those with whom he is associated, on this trial. Had such an impres¬ sion still continued upon my mind, 1 do protest to you, in the most solemn manner, and in the presence of that God, who searcheth and who knoweth, the hearts of men, that I would as soon take the station of any prisoner at that bar, as I would do aught against the life of that man. But, gentlemen, I have since perceived, that the scruples I had entertained, were merely owing to the very limited and imper¬ fect estimation I had formed of the weight and bearing of the ev¬ idence, at the mere opening of this cause. On further and more critical examination of that evidenee, 1 am now entirely satisfied myself, and I think you, also, will be convinced, that there are certain circumstances in the case of this man, also, which are en¬ tirely irreconcileable with the supposition, or even the possibili¬ ty of his innocence. Indeed, it does appear to me, from several 78 facts, which have been disclosed in the cause, that there is much ground for the supposition, that being a s/y, cunning man, to use the language of one witness, especially, who has testified respect¬ ing him, he may have been, and was, in all human probability, a principal agent, and even a prompter in all the dire scenes which have been described. The first observation which 1 have to sub¬ mit to you, in relation to this man, and his connexion with the murderers, is that throughout the whole course of the evidence of Onion and Samberson, there is not a single circumstance, (ex¬ cept the mere absence of direct and positive proof of his immedi¬ ate agency in destroying the lives of the three victims who were slain on the fatal night,) tending to favor the supposition that he was not concerned with his comrades in the perpetration of the deed. What, then, gentlemen, let me a