REPORT OF THE GREAT CONSPIRACY CASE. THE PEOPLE OF THE STATE OF MICHIGAN, VERSUS ABEL F. FITCH AND OTHERS, COMMONLY CALLED THE RAIL ROAD CONSPIRATORS: TRIED BRFORB HIS HONOR WARNER WING, PRESIDING JUDGE OF THE CIRCUIT COURT FOR THE COUNTY OF WAYNE, AT THB MAY TeBK, 185I IN THE CITY OF DETROIT. CONTAINING THE EVIDEN.ICE,t AUGrUJMENTS OF COUNSEL, CHARGE OF Till COURT AN.D THE VERDICT OF THE JURY. PUBLISrrED BY ATR ADVERTISER AND FREE PRESS, DETROITI. 1851. NOTE BY THE PUBLISHERS. In order to fully understand the nature and character of the following Trial, we have deemed it important that the reader should be placed in possession of a few of the leading incidents which preceded, and finally led toit. In the year 1849,'a series of assaults and depredations were committed upon the property and business of the Central Railroad Company, in and about the villages of Leoni and Michigan Centre, in Jackson County. These acts of violence, varied in their character and aggravation, were kept up and continued from time to time, increasing in boldness and frequency, until they formed a serious detriment to the business of the road, injuring not only the Railroad Company, but the public, and putting in constant danger the lives and limbs of thousands of the travelling community. This continued until the autumn of 1850, when the freight depot of the Company in Detroit, together with all its contents, was burned and totally destroyed. The depot was the largest and finest in the country, and the loss in the consumption of the building, and the property contained in it, was estimated to be near one hundred and fifty thousand dollars. Suspicion rested upon the defendants in this suit, and sufficient testimony having been found against them to justify the issuing of warrants, on the 19th of April last, Sheriff Bald win and possee proceeded to Leoni and Michigan Centre and arrested and made them prisoners. They were brought to Detroit and imprisoned in Wayne County Jail. A Grand Jury were called together, and orthe 24th day of April, indictments were found against all of them. On Thursday, the 29th of May, they were arraigned before the Circuit Court of Wayne County, a Jury was empanelled, and the trial commenced. 4 In this trial, the community at large have taken a deep interest, and the Publishers-have thought, therefore, that a full and complete history of it would not prove unacceptable. In order to get the volume out in time to satisfy the public demand, great haste and despatch have been necessary. In view of that, the publishers claim the indulgence of the public for the slight errors and;imperfections which may appear. Their sources of information have been of the highest and most authentic character, and they feel assured that the report will be found substantially correct and reliable-the testimony being compiled from the minutes taken during the progress of the trial by WILLIAM S. WOOD, and WILLIAM GRAY, Esqrs., published in the Detroit Daily;-and Weekly Advertiser, and the Daily and Weekly Free Press. RAIL-RlOAD CONSPIRACY.ICASE. THE CIRCUIT COURT FOR THE COUNTY OF WAYNE MAY TERM, 1851. HON. WARNER WING, PRESIDING. The People of the State of Michigan, versus Abel F. Fitch, Ammi Filley, Arba N. Moulton, Jacob Tyrrell, Abner Grant, Nalhan Credit, Ephraim A. Barrett, Lyman Champlin, Willard Champlin, Erastus Champlin, Hiram lay, Grandison Filley Lester Penfield, Richard Price, Eben Price, Miner T. Laycock, Orlando D. Williams, Benjamin F. Burnett, William Corwin,:Eben. ezer Farnham, William S. Warner, Napoleon B. Lemm, Alonzao Holmes, Daniel Myers, Andrew J. Freeland, Eri Beebe, John W.. Welch, Welcome Hill, Russel Stone, William W. Lang, Harvey Wakeman, Henry Showers, John Palmel, Seba Corwin, John Ackeson, Christie Blackburn, John A. Lockwood, John Ladue, John Cann, Benjamin F. Gleason, Mills Barboul, Jerome Gould, James; Champlin, George W. Gay, William Van Sickle, Erastus Smith, Aaron Mount, William Gunn, Harry Hocolm, and David Loucks, Defendants. WEDNESDAY, May 28. IRST DAY —FORENOON SESSION. This being the day to which the Court stood adjourned, it was opened at 9 o'clock. Mr. VAN ARMAN said there was a case in which he was one of the counsel, which was ready, but the Prosecuting Attorney, who'had charge of it, was not present to take it up. The Court said they could not wait for counsel. MR. VAN RMAN said that two messengers had been despatched for the Prosecuting Attorney, and he would be present in a very short time. Mr. VAN DYKE said they were ready to take up the case of the People, vs. Abel F. Fitch and others, set down for trial to-day, and they might as well call it now, before the Prosecuting Attorney arrived, and see if there were any preliminary questions to be disposed of. Mr. WmI A. HOWARD said that he had been retained by defendents, and since the adjournment of the case, had been east for the purpose of employing eminent counsel to assist trying the case-as his own health would not admit of his taking hold of it. After his return, he submitted a proposition to counsel for the People, to withdraw ap-. plication for seperate trials, providing the case could be further post-. poned to the 5th of June, which the counsel all agreed to, but the Pro — secuting Attorney. He now asked the continuance of the case until the 5th of June, for the purpose- of giving time for counsel to arrive,. (Hon. WM. H. SEWARD, of New York,) who had been employed, but culd not well be here before that time. He stated also, that since he had been retained, he had, a part of the time been sick, and that one other of the counsel, Mr.' CooE, had been sick ever since the adjournment of the Court. He withdrew the application for separate trials, and believed that by continuing the case one week, and trying the Deiendants all together, the trial would be got through with much sooner. D. STUART, Prosecuting Attorney, having made his appearance in Court, said his duly to the public forbid his giving his consent to the trial being postponed; there were very many surrounding circumstances attending the case, that made his responsibility to the public great; the case had been postponed to this day, and the prosecution had prepared for it accordingly. He did not believe that the case of the Defendants would be prejudiced in the hands of counsel now present There were several able counsel employed by defendants, and they had had ample time to procure more counsel and prepare for the trial -as much as the prosecution had. He should therefore ask that the case be taken up, unless the counsel for defendants can give satisfactory reasons to the Court for postponing it. Mr. VAN DYKE said he should be extremely happy to have Gov. SEWARD here to try the case, but the application for continuance was not based upon good grounds, under all the circumstances. After some remarks by Messrs. FRINK, WELLS, HOWARD and STUART, the Court said it wouldlike to have counsel agree upon the matter if they could, but the application was not founded upon any legal basis, upon which the case could be continued by the Court, without consent of all parties. The application for continuance was therefore refused, and the case set down for trial at two o'clock, this P. M. AFTERNOON SESSION. After-considerable consultation among counsel, a stipulation was entered into by the parties, by which much time and delay in empanelling ajury, and briging the case to trial would be saved. We understood the stipulation in effect, to be nearly as follows: A jury is to be empanelled, and a few witnesses are to be examined on certain points, when the case will be suffered to rest until the fifth of June, for the arrival of Gov. SEWARD as counsel for Defendants. The Defendants all to be tried together. The venire being returned, the following gentlemen answered to their names: B. Wight, R. C. Smith, James 0. Graves, C. G Hammond, John Roberts, Benj. Vernor, I. Goodrich, Levi Cook, J. Howard, Otis Judson, Wm. Phelps, Jno. Palmer, Alex. McFarlane, Israel Coe, John Ladue, Rodney D. Hill, A. C. McGraw, Amos Chaffee. 7 They werethen discharged until to-morrow morning at 9 o'clock The Court then adjourned. SECOND DAY. THURSDAY, May 29. The prisoners on trial, 37 in number, being in Court, the case was taken up. DAVID STUART, Prosecuting Attorney, J. VAN ARMAN) JAMES A. VAN DYKE, Hodl. JACOB M. HOWARD, ALEX. D. FRASER, DANIEL GOODWIN, WM. GRAY, Esqs., appeared for the People. HENRY FRINK, WM. A. HOWARD, WELLS & COOK, L. W. HEWITT, and N. H. JoY, Esqs., appeared for Defendants. VAN DYKE and WM. A. HOWARD stated the substance of the stipulation entered into yesterday, which was to govern the conduct of the suit, with reference to drawing jury, continuing the case until next week, &e. The Prosecuting Attorney said before the Jury were drawn he wished to arraign Arba N. Moulton, one of the prisoners, who was Sick when the others were brought out to plead. The indictment was then read to the prisoner named, to which he plead "not guilty." The-Prosecuting Attorney said the following among the Defendants originally indicted, and included in the above list of Defendants,-were not now on trial, some having been discharged, others not arrested, and one having died, viz: Alonzo Holmes, not present; Harry Wakeman, do; Seba Corwin, do; Christian Blackburn, do; John A. Lockwood, do; Joh Cann, do; Jerome Gould, do; Geo. W. Gay, dead; WWm VanSickles, to be triedin the U. S. Court; Nathan Credit, Harry Holcom, and David Loucks, not arrested. The counsel then proceeded to -draw a jury, when the following gentlemen were drawn from the regular panel, and having been thoroughly proved, were sworn as jurors in the case, the balance of the panel having been either excused for reasons offered to the Court, rejected, or absent. Rollin C. Smith, Horace Hallock, Levi Cook, Alex. C. McGraw, Amos Chaffee, Alex. McFarlane, John Roberts, Ichabod Goodrich, Buckminster Wight. The regular panel having been exhausted, the panel was filled by the following talismen: Stephen Fowler, Ralph Phelps, Silas A. Bagg. The Prosecuting Attorney announced that they would be ready to go on with the evidence at 2 o'clock, to which hour the Court adjourned. In the afternoon, three witnesses were examined, and the case continued until Thursday June 5. THURSDAY, May 29. AFTERNOON SESSION. Van Arman, for the prosecution, said, under the arrangement of counsel, it was not important to open the case at this time, farther than as relates to the testimony now sought to be introduced, leaving a more complete opening for a future time when the testimony should be nore fully gone into. 8 They sought now to show by evidence, that one Washington Gay, late of this city, was employed by the defendants to burn the M. C. R. R. depot in this city, and that he did burn it at the instigation of defendants; that subsequently, by stratagem, the said Gay was induced repeatedly to confess the said burning and all the circumstances connected with the event;that defendant's hired said Gay for $150, to burn said depot, and paid him said amount for such felonious act, that they furnished him with certain ingeniously made instruments or matches to fire said depot; should also attempt to show the object in view in burning the depot, and other depredations by aid of defendants; that the said depot could not:well be fired by accident; that Gay was acquainted with many of these defendants, and acted in conjunction with them. The testimony, at this time, under a stipulation of counsel, would be confined to the one point of burning the depot. TESTIMONY. Henry Phelps sworn —Resides in this city now; resided at Sylvan, Washtenaw Co. the past year; remember hearing of the burning of the M. C. R. R. depot last November; knew Geo. W. Gay, late of this city; formerly knew him in Oakland Co.; witness came to this city a day or two after the depot was burned; remained here some 3. weeks; saw Gay in this city at the Palo Alto saloon; had conversation with him about burning depot. Question-Will witness relate how the conversation occurred? Objected toby Mr. Frink. ist. Mr. Gay is not upon trial and his admissiois not evidence, at least at the present stage of the case; cites 1 Greenleaf's Evidence, page 187, 110 and 111; 2 Peters, page 354, 364 and 5. Must first prove the conspiracy, and the admission must be prior to the consummation of the intended object of the conspiracy. 1 Roscoes', page 60 and 324. MR. VAN DYKE said that they would now proceed to attempt to prove the conspiracy, if counsel desired, though by the stipulation entered into, they were not to do so at this time, but they wished to give certain evidence to establish the corpus de licti; they proposed to show that certain declarations were made by Gay and communicated back to these defendants, to which they made certain responses, admitting the truth of the declarations of Gay, with regard to the burning. WMr. A. HOWARD wished to know whether they sought to prove these declarations home upon each and all the defendants. MR. VAN ARMAN said they expected to bring them home to some, if not to all, individually. WM. A. HOWARD did not see the necessity for proving this point at ihis time, unless it was to prejudice this jury; there was no reason for Ieparting from the rule; the testimony must be confined to Gay alone. VAN DYKE-There are certain number of persons on trial; now any teatimonytouching any one of them isadmissable; they had just got to prove what had been said with regard to the matter, and then prove to whom it was said, and the response, and whether it implicated oneor all of defendants, it made no difference. 9 Frink, Joy and Goodwin further argued the objection. VAN ARMAN said they wished to bring home upon some of these defendants, the declarations of Gay, as to the burning and their responses to the declarations. HEWITT took the ground that under the stipulation they could not offer testimony except as to Gay's declarations of his own acts. Court-lt is charged that Gay burnt the depot, and that defendants were aiding and abetting in the act. Under stipulation of counsel they are confined to proof of one point. FRINK asks Court to instruct the witness to confine himself to what affected Gay himself, and to that there was no objection. Testimony resumed-How did the conversation between you and Gay occur? It was first introduced by speaking of some men who had been arrested for counterfeiting-one Van Sickles and Van I[oughton, and what would be the best mode of getting' Van Sickles liberated. Gay proposed-several modes, and mentioned the burning of one of three ror four of the depots of the Central Railroad, stated the mode by which he could be liberated by the burning of a depot. The plot was as follows:: Mr. Van Sickles, who was then on bail, for counterfeiting, could be placed in jail-the depot at Ypsilanti, Ann Arbor, or some other one be burned, and on furnishing information of who fired it, Van Sickles could get released, and they could also doubtless get $1,000 reward from the Railroad Company, for the information, besides getting $200 from his (Gay's) friends for setting the fire. It was suggested that the burning should be laid to Joseph Boyce. Witness asked why not predicate a similar thing, or plot upon the burning of the depot already burned; Gay replied that it would not do, "there are too many of us engaged in tie burning," and besides he rather thought Boyce was in jail at the time. I:went to Gay's house that night and found Van Sickles there. IMr. James Dodson went with me. I think Mr. Van Houghton was also there, but soon left. There were several women there too, and several persons in and out during the evening. At the first interview at the Palo Alto saloon, Van Sickles, and the defendant, Erastus Smith were present and took part in conversation. In the evening Van Sickles relatid the position in which he was situated in the arrest for counterfeiting. (ay then again stated the plan of operations. He would first get Boyce out of jail; then they would burn a depot somewhere on the road and swear it upon Boyce. Gay said he knew a first rate man and his wife who would swear that Boyce told them before the burning, that he was going to burn it, and afterwards that he had done it. Witness asked who would pay the two hundred dollars, and if it. wouldsurely be paid. Gay said it would, they had paid $150 for burning the depot in this city, and gave witness to understand he hadthe money in his bar. (Gay kept a sort of grocery in the upper part of the city.) He said he knew the man by sight who paid over the $150-it was raised by a company of men. There was considerable said by Gay and Van Sickles during the evening; witness related what 10 he had heardand learned, to George C. Bates, Esq., who advised him to return in the morning. Went back to Gay's next morning-found Smith on the road, near the Citi Hall, who went with him. Atthis meeting, was not positive whether Van Sickles was there-think he was not. Gay said him and Van Sickles left the matter in this way; they were to burn another depot, and have Van Sickles make a sham expose against Boyce, to get clear himself. Gay said he burned the depot in this city with a match placed- in the cupola; the match was in a box. Smith heard a part of conversation, and afterwards intimated that he received a portion of the $150, said Gay did not keep quite all of it. Witness and Smith left together, and went that day out to Salen, Washtenaw Co. to Van Sickles house. On the road they talked freely of the matter, and Smith said the depot was burned under an arrangement with Gay, of which he was cognizant, andalso told who paid over the$150. Defendants object to any admission of Smith that Gay burned, &c., on ground that it covers more than one point. Sustained. Next saw Gay on the 13th Feb., at Central Railroad Depot, near Johnson's Hotel and Savanack's Saloon; had a conversation relative to the burning of the Depot. Gay showed him $50 which he had received from the same man who paid him the $150 for burning the old depot-it was paid for burning the new depot-said he had been furnished with two matches for the purpose, the same as the one with which he was furnished to burn old depot, and by the same person.: Gay said the person who delivered the match was then in the city. Next saw Gay 24th February, at his house; Mr. Lake went with me. Got there about 9 o'clock P. M. Gay related tle conversation again; said he was bound to clear Van Sickles, but could not predicate it upon the burning of the old depot, because Boyce was in jail when the old one was burned. He exhibited a match which he said was like the one used in burningthe old depot. He stated in presence of Lake the amount he received for burning the old depot, and how he received it; the match exhibited was similar to one subsequently found at Gay's house; it was in Gay's chamber when he saw it; he brought it from a bed room; it was the same match subsequently seen by Clark and Van Arman. Next saw Gay in fore part of March, at "BillBrown's" house in this city-Lake was present. Gay reiterated his former story how he managed to fire the old depot. He went inwhile hands were at work, went up stairs and deposited the box in the cupola; placed the fire in the box before he left home,and when he left it,took off the cover; was a good deal of talk about burning new depot at this interview. Next saw him on the evening of April 1st, at his house; Mr. Van Arman was with me. Gay again reiterated in substance what he had before told about burning; said he could give the new depot a better scorching than he did the old one. Was next at his house on the 8th of April, in company with Darius Clark and Mr. Van Arman; had a general conversation in reference to burning the new depot, and also the old one; was there again with the same person and Mr. Lake, on the night of the 9th, conversed about burning depot. Gay said he could make more by burning depots on the railroad than by-any other way; he could get $50 more for buring the new than the old one.:Again he referred to the scheme of laying it to Boyce, and told them he would see David Stuart in the morning and find out whether Boyce was in Jail at the time the old depot was burned, and also how much the railroad company would pay to be informed who burned it; and Van Arman (who had gained the full confidence of Gay as a colaborer) was to go to Hillsdale and get "old Sile Doty" out of jail by his making the expose against Boyce, and the railroad company paying 1100 reward for the information. (We suppose Van Sickles had been liberated by some other means.) On that night, asked Gay to see the match, as witness was about to have one finished and wished to see that it was made right. Gay said there were a good many about the house, but he would get it and exhibit it up stairs. He did so, and Clark and Van Arman saw it at lhe same time, and witness at the suggestion of Clark, went up the second time alone, and placed a private mark upon it. In conversation about burning the new depot, said he had the tools in his house to do it with; the same used in burning the old one, and they would take effect. Witness introduced Van Arman under a fictitious name as a man from Indiana, who came to get Doty out of jail. He had before told him that he had a friend coming in a day or two, for that and kindred purposes. He also told Gay that Van Arman was an engraver and had got up a-plate for counterfeiting bills on the Michigan State Bank, and Van Arman showed Gay a number of genuine $5 bills in blanks, as counterfeits and a partly finished counierfeit plate,which pleased G. much especially the fives, as they were so good an intimation of the genuine. Mr. Van Arman, and also Mr. Clark, were more or less disguised by their dress. Witness introduced Mr. Darius Clark as Mr. Wolf, of Illinois, and who came well recommended as the right kind of a fellow for operations. On the first night Clark affected to be pretty drunk-witness and Van Arman excused the matter by saying he was on a considerable of a bender that day owing to a big'strike' he had recently made in some counterfeit bills on the Wisconsin Fire and Marine Insurance Bank, but he would be all right by the next day, when he became sober. Clark, during the evening, exhibited some genuine bills oin the Wisconsin BaIlk as counterfeits. In a conyersation told Van Arman in case he should be in a tight place, and wanted protection or a hiding place, he could get it any time by giving a certain signal at the door; and as for plunder he could hide more than five man could steal. He had a place under the side walk where he had hid enough to make any one rich,, and if happened to be found there he would know nothing about it-it was not in his house and that he would not be responsible for it. Darius B. Clark, sworn-Knew Geo. W. Gay for the first time two years ago. In April last went to his house in this city with Phelps and Van Arman-went disguised for the purpose of seeing a certain match which had been represented to him as being there. Went as Mr. Wolf, 12 of Illinois, engaged in counterfeiting and kindred operations, as the friend of Sile Doty, for the purpose of getting him out of jail, &c.Went to his house again the next night,, and having gained Gay's confidence, heard him say in conversation on the subject, that he burned the depot in this city, and could get $200 or $50 more for burning the new one than he got for burning the old one. Saw a curiously made match for firing buildings, &c. In conversation about Doty, Gay told the situation of the Hillsdale co. jail-that he worked upon it while building, and had left a place for himself and friends to escape, by a place in the wall, which could be easily broken through. I procured a bank note plate and bills exhibited to Gay at the State Bank in this city, for the purpose of carrying out the plot we had laid to gain G.'s confidence, and ferret out his operations and his associates. Heard Gay's plot of charging the burning of the depot upon Boyce, (as related by Mr. Phelps.) Agreed upon a plan to break open a bank in this city, and also to go to Hillsdale, break open the jail and liberate Doty-were to steal a horse on the road and enter into various and sundry like business transactions. - John Van Arman, sworn-Was in this city April 1st, and went to Gay's house for the express purpose of seeing the match spoken ofwas introduced as Mr. Johnson-of Ind.,-was familiar with Gay's and Doty's former history from having been engaged in suits in Southern Michigan, and Northern Indiana, their former field of operations. Asked Gay if he was not once at a place known as the "Tameracks," a notorious rendezvous for scoundrels in Southern Michigan, with Doty; said he was. He mentioned several other incidents with which he knew Gay- was familiar, which led him to believe he was'one of'em.' By this means and others he soon got the full confidence of Gay, when he unbosomed himself to witness and related many incidents of his formner life. in crime, including a murder by Doty, in which case Gay carried off witnesses to get him clear. Gay said he was an old friend of Doty's, and something must be done to get him out of the Hillsdale co. jail. Witness avowed:himself a friend of Doty's, and his business here to be partly for the very purpose of getting assistance for effecting that object. On the 8th of April he went to his house again with Clark, and heard conversation with Gay about burning depots at Niles and Detroit, and other schemes. Went to his house again the next night, and had aconversation with him-Gay said they could get $1000 for burning the depot at Niles, and divulged his plot for swearing it on Jo. Boyce, by a man and his. wife-fully corroborating the testimony of Phelps and Clark. G. said he was willing thus to sacrifice Boyce, because he disregarded the old motto, "honor among thieves"-he would steal from his best friends, and gave him several instances of his doing it. Another thing he charged against him was that he had gone off and left his wife-deserted her, and she was there at his house. He pointed her out to witness. Saw the match or infernal machine referred to by Mr. Phelps and. Clark. 13 It was a block of wood some 10 or 12 inches long, and 6 or 7 in di. ameter. In one end near the sides were bored three large holes nearly to the other, which met holes from the sides. The long holes were filled with cotton, stuffed in around a flue or chimney in the centre, formed by a roll of paper or pasteboard. In the centre of the block were holes which had been varnished and filled with camphene, then covered over and sealed with wax. (The operation of the instrument would be as follows: When properly loaded it was placed in a box with light shavings or combustible substance at the wax end. The fire was then communicated to the cotton by means of the side holes connecting with the flues or long holes at the base or opposite end of the block. By means of the chimneys in the centre the fire would be kept burning, either slow or fast, according to the compactness of the cotton-it could be packed so as to burn through the length of the block in one hour, or 24, or any other desired length of time up to three or four days.) Gay stated that he worked on the Hillsdale co. jail during its building, and told of a certain weak place he left in the wall, by which Doty could be got out, and agreed to go there with witness, (agreeing to steal a horse on the road,) and get him out. After agreeing upon the plan of operation for several other enterprises, among which was a plan for robbing one of the city banks,-witness suggested that in case he should get into straightened circumstances-into a tight place, he might want some safe place to hide, and receive the protecting care and attentions of a friend. Gay told him he could always find such by coming to his house and giving a certain signal on the door; and as for the plunder he might get, he could hide as much as five could steal-he had an excellent place under the side-walk, where he had enough to make one man rich, &co. Gay fully divulged all of his operations in burning the depot, and getting his pay for it, how much, and who paid him, &c., &c., and offered to go out in the country the next day, and introduce witness to his friends and co-laborers, where he could find any amount of facilities for carrying on their schemes. Witness has since been to Hillsdale and examined the jail, and found Just such a defect in the wall as described by Gay. f After Mir. Van Arman's testimony closed, the Court adjourned for one week, until June Sth. THURSDA, JuBe 5th, THIRD DAY-MORRINOG SaIasSlO The Prosecuting Attorney stated to the court that ex-Gor. Seward had been employed on behalf of the defendants, and moved that he be admitted as an attorney of record of this court for this case. Admitted. MR. FRrNE said, before proceeding to take up the case, they proposed to offer bail, from day to day, on all of the indictments, for Abel F. Fitch and Benjamin F. Burnett, and asked that the amount of bail required be now fixed. Mr. VAr DrYl would like to know who was proposed as bail. 14 Mr. FRINK offered-on behalf of Fitch, Henry S. Holcomb, Harrison F. Holcomb, James Snyder, James Videto, Jacob Crout, Alex. Ford, -AnsonH. Delemater, Sam'l Marsh, Amasa Marsh, Chauncey Hawley, R. B. Rexford, J.. SHurd, Jas. P. Elliott, Geo. Snyder.:On the part of Burnett, J. S. Brown, Uri David, Ralph Updike, Lorin C. Watkins, L. Mills, Dan'l H. Mills, E. M. Barnes, H. L Albro, Sam'l Upton anld:Geo. W. Watkins. Prosecuting Attorney STUART said the amount required would be 115,000 from each for the case now on trial, and half of that amount in each of the other indictments. Mr. FRINK submitted to the court that this was exoabitant bail; and some three or four of these indictments were only for a misdemeanor, therefore did not demand that such bail be required, and asked that the court fix the amount at a reasonable figure. COURT-The amount of bail sometimes has reference to the pecuniary condition of the defendants, and also to the nature of the offence. FRIN —Mr. Burnett was not worth over $1,000 in all, and said Fitch, he was now informed, was worth not to exceed $8,000-somewhere from'5,000 to $8,000 STUART said on several occasions defend ants had proposed bail, and always declared themselves ready to give bail in $100,000, or to an indefinite amount beyond that. All the prosecution want is that the defendants, whom it is said are able to give any amount of bail, should give such bail as will ensure their attendance from day to day. J. M. HowAED, for prosecution-Said the offence was of a very serious and aggravated nature, and no trifling bail should be thought of-or asked. He then referred in detail to the different indictments, and remarked at some lengti upon the serious nature of the charges for which they had been indicted by the Grand Jury. Mr. W. H. SEWARD, for Defendants-Said he had no knowledge of the merit of this case or the circumstances'attending it, except'what was spread upon the record, and the assertions of his associate counsel. He found 37 prisoners at a bar, all charged with the same offences; two of them ask. the boon of giving bail during the trial, that they may better defend themselves. The amount of bail required was excessive, and if it was his case he would rot in jail and rely upon the sympathies of his fellow men, before he would' submit to such persecution and oppression-his advice: therefore wonld be, if this excessive bail was persisted in, to refuse to give it. VAN DYKE thought it was not much of;a hardship to demand so much less bail than defendants had frequently announced themselves ready to give. It was an important move-if by getting this bail, any tme during the trial, one of the defendants should forfeit his recognizance, fail to make his appearance, the whole proceedings were stopped and all that had been done would be null and void. He did not believe the prosecutors were liable to the charge of oppression or persection of the defendants-its duty was plain and must be followed, in spite of all charges of oppression, and all reflections by remarks of counsel. Prosecution was ready to offer affidavits as to the necessity of this amount of bail if it was required. FRASER continued the argument for the prosecution. 15 FRINK did not know the counsel for the defendants had offered bail io'the amount of $100,000-there had been some reference to the subject in conversation among counsel. But it was immaterial what had thus been said. It did not touch this application. He denied the right of prosecution to offer affidavits to influence ths amount of bail. STUART, Prosecuting Attorney, hoped nothing in this case would assume a personal character by insinuations and inuendos of counsel.Defendants' counsel had repeatedly declared their ability to give bail in the amount of $100,000, and if necessary, to the amount of a million-they had represented that nearly all Jackson county, were ready to come here and bail these defendants; and now they thought it exorbitant to demand: less than one half that amount. There were insuperable objections to allowing bail, as they were liable to be arrested and taken out of the jurisdiction of this court to another county where they had also been indicted. SEWARD said he would submit to this court; that this was a court of justice, and that these defendants were prisoners at the bar, and that the constitution of the country was not a fiction; that they had constitutional rights, and that in all cases where they were entitled to bail, there were no insuperable objections to giving such bail in a reasonable amount. Theountunt demanded was $45,000 for eachamounting in the aggregate to nearly two millions of dollars —($1,665, 000.) It was beyond the ability of most of them to procure-it was exorbitant.. Mr. VAN DYKE said if the court thought fit to overrule the amount of bail required, they wished to prepare specific affidavits upon this point, that at least this amount should be required in the case of these two defendants, as they were looked upon as the head and front of the whole gang In the case of some of the defendants this amount of bail would not be required. The Court said, to give counsel time to prepare affidavits, the Court. would adjourn till afternoon. THIRD DAY. TEURSDAY, JUNE 5th. Afternoon. Session. Pending Mr. Frink's objection to the amount of bail required, the Prosecuting Attorney read the affidavit of Darius Clark, setting forth that he has been employed as agent of the M. C. R. R. Co. for the past eighteen months, in ferretting out the persons who committed depredations upon the railrood; that he was familiar with proofs to, be adduced on this trial, and that from information within his knowledge he believed Abel F. Fitch to have been the leader of a combination of men who committed the various offences on the road in Jackson Co., and instigated them to the said unlawful acts, and that had it not been for his shrewdness and cunning, the gang would long since been detected and brought to fustice. Affidavit of G. V. N. Lothrop.-The affidavit of ex-Attorney General Lothrop was read, setting forth that while he was acting in his official capacity as Attorney General of the State, he was called to 16 Jackson Co. to investigate certain depredations upon the road, at the time one Lester was arrested for placing obstructions upon the track at Leoni; that during the year he was frevuently called to Jackson Co. to ferret out the authors of the depredations, and that during his invesiigations of the subject, he became convinced that Fitch was at the head of an organized body of men for injuriug the road,: and the chief instigator of the offence, and believe that had it not been for his management, the offenders would long since have been discovered. Affidavit of Geo. C. Bates read-Stated that the Grand Juty had recently found two bills of indictment against Abel F. Fitch and others, in the U. S. Dist. Court, one for counterfeiting U. Si coin. and one for obstructing the U.S. mail on the M. C. R. R. Affidavit of L. Baldwin, Sheriff, read-The sheriff of Berrien Co. and also the U. S. Marshall, had placed in his hands warrants against Abel F. Fitch for various offences against the railroad, and for counterfeiting U. S. coin. Affidavit lof James F. Joy read-Has for some years past been the attorney of the M. C. R.: R. Co.; been engaged in investigating the cause of the depredations upon the road in Jacksorr Co.; from the best information in his power, he believes there has been an organized body of men, who were bonded together for the purpose of committing depredations upon said road, and mutually pledged to defend each other in such acts and the consequences thereof; that Abel F. Fitch was the leader and guide to said body of men for such purposes, and that had it not been for his shrewdness the offenders would long since been detected and brought to justice. Counter affidavit of Abel F. Fitch, and B. F. Burnet-they deny being guilty of any of the charges against them in any of the indictmnents. The affidavit of Fitch sets forth that he is innocent of the charges against him in the U. S. District Court, for counterfeiting, referred to in the affidavit of George C. Bates, U. S. Dist. Att'y, or of the charges upon which they have been indicted in Berrien Co., or of any other offence of which they are charged in these indictments; that said Fitch is not worth to exceed $8,040 above his liabilities-of Burnet that he is not worth to exceed $1,000. Van Dyke said he was glad they were to have a legal discussion upon this legal question. After having read many authorities, and argued the question at colnsderable length.:Hon. Jacob M. Howard:said he-would add a word as to the liberal provisions of the statutes in providiig for the attendance of witnesses on the behalf of prisoners-teey had the power to call witnesses from any part of the State at the public expense. He did not think-the bail required was excessive-they only wanted such bail as; would ensure the attendance of these defendants at the bar of this court. Look at the magnitude of the crime. A vagabond who passed a $5 counterfeit bill was required to find bail in the amount of $1,000 or $1,6 J, and if he could not get it, he must go to jail, and nobody complained. The offences here charged were of a much more aggravated nature, involving millions of property, and thousands of lives of innocent persons. 17 W. H. Seward said he was glad that this court had some other guide than the popular opinion of the people of Michigan-it was to be governed by that "higher law," to which the gentleman referred-the constitution of the State, and he hoped also it would be governed by that still "higher law," than the constitution of the State-a proper sense of its obligations to God and humanity, and love of liberty for the oppressed, under all circumstances. Court-So much has been said on this subject thut I propose to say but little. It does not depend precisely upon the amount of property a man possesses-If a man should steal one hundred thousand dollars, it would be competent to require at least, that amount of bail, for otherwise if only ten thousand was required, he might furnish that amount of bail-forfeit it, and step out with the balance, making a fair speculation. It makes but little difference of what the aggregate bail would amount to, in case all the defendants offered to give it. In-this particular case the bail should be fixed at a much higher sum than in some of the other indictments. I have in my own mind fixed the amount of bail, though I do it under great responsibility. The prosecution may think it too light, and the defendants too heavy. In the case of Fitch, the amount in this case is fixed at $10,000, in the next case 2,000, next case 1,000, 4th case 5,000, 5th case 2,000, making in all 20,000. In the case of Burnett, in the first indictment, the amount is fixed at 5,000, in the second case, at 1,000 in the 3d case at 1,000, in the 4th case at 2,000, and in the5th case at 1,000, making in all 10,000. The defendants then presented their sureties, who were sworn and severally examined as to their ability to go bail-first for Mr. Fitch, and answered as follows: John S. Hurd, of Jackson, occupation farmer, have property there, and in Ingham, consisting of land, don't know how much I have without figuring it up-it is worth over 10,000-it is in my own name — all unincumbered except some 200-owe in all some 600-am worth over and above all liabilities 10,000 am worth in all, real and personal, above debts, at least 20,000. Henry S. Holcomb-am worth 5,000, property consists mostly of real estate, in Jackson and Ingham Cos. owe five hundred and seventfive dollars in all-own 6,000 acres of land and 1,000 dollars personal property, and some bond and mortgages-is surety for Co. Treasurer, on bonds of 30,000. Jacob B. Crouse-Property consists of bonds and mortgages and real estate, clear of incumbrances, have 5,000 dollars in money at interest, am worth in all from 10,000, to 12,000, over and above debts. Lewis Snyder-Consider my property worth 5,000 oiver and above all debts, have no liabilities on my farm except my old woman, hate been offered 5,000 for my farm. Lewis Snyder, Jr.-Own farm worth 6,000, have 350 acres in Spring Arbor-incumbered.for some 200 dollars only, consider it worth 5,000, above debts and liabilities. The above gentlemen then acknowledged themselves as suretie~ for Fitch on the second indictment, to the amount before named by'the Court. 18 For Benj. F. Burnett, the following were sworn and answered as to their ability to become bail as follows: HoldenL. Albro-am worth $5,000, have a farm of three and a half lots in Rives, Jackson Co.-went to New York, bought a bill of goods and mortgaged my farm, in all for about $2,100. Bought a bill of goods in Buffalo of $1,300, and owe $700 on them-owes about $1,700, besides $1,100 mortgages. Ralph Updike-have a farm of 39 acres, which is encumbered $1,400-worth $4,000 above all liabilities, have taken security on a mill in-Waterton for the $1,400 mortgage-owe no other debts, am security for no other debts. Edward M. Barnes-property consists of lands, stock, &c., have 100 acres of land, 70 improved, and encumbered $500, which is all -owe some $15 to stores, &c.-am worth $2,000. Geo.. W atkins-am worth $4,000-iu real estate and personal property, incumbered $400-have stock on farm to the amount of.600 dollars-am security for 200 dollars-am worth $4,000 above all liabilities. Stephen Mills-worth 3 or 4000 dollars in 93 acres of land, near Ann Arbor, where I live, nearly all improved, no incumbrance, owes about 250 dollars, have 60 acres of land in another place-have owing to me some 8 or 9f0 dollars, am security for no one, consider my homestead near Ann Arbor worth 35 dollars per acre. Daniel H. Mills-reside in Pittsfield, Washtenaw County, own one lot of land worth $30 per acre to me; 75 acres improved; owe about $50 in all, and not security to any one-no incumbrance on land, and worth, above all debts, $2,500. S. Updike-live in Jackson county, am a farmer, have one, hundred and thirty acres of land, ninety improved, worth $20 per acre to me, mortgaged for $200, only owe besides some $70, am not security for any one, have cattle and sheep to the amount of $150 worth, in all some $2,100. J. R. Brown-am worth $2000 above liabilities and exemption law, that amount is money at interest. Uri David, consider myself worth $2000, owe no one, am security for no one, own eighty-nine acres of land at Grass Lake, seventy improved, worth $80 per acre. Lorenzo C. Watkins, live at Grass Lake, owe about $100 aside from $500 mortgage, am worth, above all debts, $1000, own the life lease of one hundred and thirty acres of other lands. The above persons then recognized in the sum before mentioned with Mr. Burnett for his daily appearance at this court during the trial, to answerto the various indictments. The Proaeuting Attorney said in the matter of the 5th indictment it was not pending in this court, but in the County Court, and therefore any action kere did not ffect that, and they did not seek to take iuretiao a:s to that one. The foregoing persons might enter their currtie. with Burnett, and the prosecution would examine the itt? tht~i etviing. They didn't now deem them sufficient,under the -empt'io lat. The prisoner could not now be diacharged as there'wert otW aiw a iviil Witt in rhi 1 0.h $,Q00 bail Aw rsquired 19 and still others pending, to prevent it. The prisoners were remanded to jail, and the court adjourned until to-morrow morning at 9 oclock. FOURTH DAY. FRIDAY, June 6th.. The Court met at the Circuit Court room, and by consent of alP parties, adjourned to the City Hall. Mr. Frink said, they were ready to take up the motion to quash, capias. Mr. Joy said, the notice was not served upon him until last evening, as the court adjourned, and he had not had time to examine thematter; therefore he was not ready to take it u'p at this time. Court, one day will be allowed to take up the motion, in the meantime other matters may be taken up. Stuart, Pro. Atty., submitted the result of investigation, as to theability of bail offered in case of Burnett. As to Albro, who swears be is worth'4000, his own showing makes his debts $3,500, 2,100 in mortgage. After referring in detail to the several affidavits of sureties for Burnett, and referring to the exemption law, he suggested that bonds. against them all could not be negotiable for $3000; and therefore he did not consider them good to the people of this County for $10,000. Wm. A. Howard, for Defendants, claimed that Albro was competent bail for several thousand dollars, he had goods enough on hand to cover his indebtedness. Court, would consider Albro good for $2000, and from the showing of others, in consideration of the exemption law, the bail should'. be somewhat increased. It was out of the county, and should be, therefore, of the most substantial character. Frink, said, they would withdraw these sureties on the first, andoffer them the remaining three indictments; and would offer on Wmi. A. Howard as surety in the one now pending; accepted. Mr. Howard acknowledged in a recognisance of $5000 on the pending indictment, and said he wanted the entire control of the prisoner, and asked a bail piece. Van Dyke said the clerk would give, a bail piece if he thought it his duty, that matter could be settled hereafter. Frink wished the amount of bail fixed for Gleason. Wm. A. Howard would like to have the amount of bail fixed for each of the defendants, as cthers duringt the rial might offer bail Wells read the afidavit of Gleason, setting forth sickness, &c &e,, for the purpose of getting amount of bail reduced. Court~.-Tha court will meet at any time in the afternoon, after the Jury are discharged, to take up any of these questions, so that the Jury may not be detained during the discussion of them. The Court will fix the bail at 10,000 dollars for any of the other def'ts unless some showing i. made, which was agreed to. Mr. VAN ARMAN proceededto open the case to the Jary. Caid he should confine himself to facts, and avoid making an exaggerate showing alculated to prejudice their minds on the case. Heie tate 20 the nature of the iudictment. Should show the burning of the Railroad depot in this city, by one Gay, and that he was acting in convcert with and at the instignation of these defendants-that they paid him for the act. Should prove that the depot could not well be burned, but by design. Should show the organization of a conspiracy among the defendants at Michigan Centre and vicinity, for the.purpose of committing depredations on the Michigan Central RailToad. Should not not be able to prove a conspiracy by written contracts-the law did not require such proof; but should establish it by'competent and satisfactory proof. Could not show that all of the defendants were always present at the meetings they frequently held to concoct their plans of operations; but should show their threats and ~acts. Should beable to show them in the act of placing abstructions on kthe track, and boasting of unlawful and murderous designs. Should show their numerous secret meetings, and by almost providential means were able' to give the conversations there-the plots formed to destroy life and property-the manufacturing of various infernal machines for the purpose —that they were leagued together and bound to assist and defend each other in crime, if necessary, by perjury,that they boasted they could impeach any witness brought against them, &c. Mr. Van Arman referred to the means employed to ferret out the offenders, by spies —referred to many of the henious acts with which the defts stand charged,and the proof by which theywould be established,which it is needless to publish now, as the testimony will more clearly showthe facts in theematter. He closed with an eloquent and beautiful allusion to the spirit of this age of improvement. The prosecution then proceeded to call witnesses. Gilbert B. Avery.-Am a carpenter and joiner;reside in Detroit; was and am acquainted with the machinery in the old Central Railroad depot; the depot was 800 feet long and 100 feet wide; near the centre was a cupola that rose over the building, in which was the machinery for raising and lowering wheat, flour, &c.; the engine was on the north side, a little more than half way down the building, with brick partition all round the engine, separating it entirely from the rest of the building. The machinery was worked with belts; the main shaft run nearly the whole length of the building, a few feet over the 2d floor; the machinery run in cast-iron boxes; was soft metal (Babbit's) to prevent friction; the most friction was on a belt in the second story, (a leather belt,) which ran faster than the other belts and was more tightened; this belt, between the shafts was 24 feet or so-40 feet long in all; the belt made about b5 revolutions in a minute, usually; the shaft on which it moved was iron; the pulleys also iron. I am a machinist and have seen and run a great deal of machinery. Question: What amount of heat would be produced by the friction of this belt at 85 revolutions a minute? Objected to. Argued by Frink, Seward, Van Arman and T'an Dyke. Objection withdrawn. I examined it- several times and never found the journals warm m 21 the journals are the ends of the shaft that rest in the box; it had been in operation two or three years. There might be weight enough put on to generate fire, but with the weight on this, I deem it impossible. One shaft was about twelve feet lower than the cupola, the other shaft was on the south side of the building, a little over the floor, about four feet from the main floor. In the upper part of the building, beneath the cupola, the floors were two thicknesses; rafters of white-wood and pine shingles on the roof; the the main shaft was directly below the cupola on the north side, running the whole length; to communicate fire to wood in which they set, the whole iron boxes should be w.ell heated; the nearest wood had three inches between it and the friction, that is, the thickness of the iron boxes; the wood in which the boxes set were mostly oak, but a few intermediate ones were pine; the first pulley was.three feet in diameter, the other that worked above was two feet in diameter; there was no friction to cause heat, save in the journals; the belt below ran faster, and the machinery as it ascended worked slower; the most friction was below, near the. engine; the engine was calculated at seventy revolutions; the pulley direct from the engine and below moved one hundred and fifty to two hundred revolutions a minute; there was a pulley in the cupola, but run slower; the pulley below was fixed in boxes; during the three years it run I had repeated opportunities and never knew of any of the journals getting hot or'setting fire to anything; I have known shafts with the same weight to be driven on wood; know one of the same size that run on basswood six hundred revolutions and never took fire; I mean the shaft lies on wood; do not think even on wood there would be any danger at one hundred and fifty revolutions. The belt in the second story had its pulleys about eight inches from the ceiling of a wheat bin. From your knowledge of that machinery and from a general knowledge of such machinery, was there, in your opinion, any liability of fire being occasioned by the friction of that machinery, under the given circumstances? Objected to and objection overruled. I should think it was not possible for it to have taken from fiiction; that is now my opinion and I thought so from the first. I was in the city at the time of the fire; the depot was built and owned by the Michigan Central Railroad Company; it was situated in this city and county. At the time of the fire 1 was 20 or 30 rods from the building, where I live; when I first saw the fire it extended about 3-4 the length of the building; the fire was on the morning of the 19th November, 1850; don't know what hour exactly; there was broad stairs up by side of office to 2d floor, and thence to cupola; the access was generally open to persons to go up; there was nothing in cupola but machinery, and the wood connected with it; there never was any means to prevent persons passing up to cupola to my knowledge; have often gone up there in the evening, and never saw any person to watch or prevent persons going up; the outside doors are also open generally; if the fire had taken, below it would have to burn the floor before getting up to cupola;'the 2d floor was filled in with brick and mortar to prevent fire pas Sing up; when I arrived I think the fire was too far along to prevent any one's going into the building; never before was any fire there to my knowledge; the building was and is used as a Railroad depot; the building and machinery must have cost $80,000. Cross Examined-I helped to build the depot and also helped to repair the machinery; never repaired pulleys, but have seen them taken out and overhauled; don,t think the pulleys were ever changed -by new ones, but additional ones were put in at one time; there were wheat bins in same room with machinery, but space between; overhead all was one room; the bins for wheat were of wood; think of pine; there were about five bins. Mr. Seward here states the grounds of his objection to the question allowed, ie, that it called for opinion, and asks to note excep-tion. Witness resumes-Bins were used for storing wheat and grain; my impression is there was wheat in them that night; they were of stud-.ding, 4 by 6, and rough boards nailed on; don't know that there were nmen at work at bins the night of the fire; I should think at time of fire there were about forty men employed by the company about the whole building; these men were not employed all of night and day; I understood that those who were employed elevating wheat, worked till 12 at night; they used to have lights on the 2d floor where the bins were, but never saw any in cupola; they generally used common tallow candles I think; they were in tin sconces, generally hung up on one of the back:posts; don't recollect ever seeing the candles car-.Tied about below; I have seen lamps andlanters carried about; don't recollect ever having seen' candles on inside of bins; building was,ised for storing, forwarding, &c., and they received all kinds of mierchandize; don't recollect, but think at time of fire Mr. Stewart.had charge of receiving wheat; don't know that there was turpentine.and such things there at that time; have seen such below, but never:above; don't know what hour they generally closed doors, have sometimes gone in as late as 9 P. M., andlater through the yard from my toom; the engines sometimes ran into the building, but generally was put back of train when going in; used wood fuel on locomotives; at that season a good deal of freight coming in, but not so much as earlier in season; freight trains every day, sometimes came in at seven or eight in the evening, and sometimes were later; to my knowSedge never used matches; don't know how they were in the habit of striking their lights; there was no other building nearer than fifty feet; the machine shop was twelve or fifteen rods off; engines were an the habit of running into the depot to draw trains out. The cupola was not ceiled or plastered; it was covered with fireproof paint on the inside, and the roof on the outside; cupola was about thirty by thirty-three feet; the machinery stood in centre, and:ould pass all around it; cupola was about twenty-two feet higher than the ridge of the main building; it was about eight inches from the shaft to the studding of the bin; the roof of the depot was part white wood and part oak; don't know how many men were generally employed in elevating; unless when loading a vessel don't think im.en would be in the bins; the bins were of two sizes, some twenty 23 five feet and some thirty-five feet by fourteen feet; Mr. Hawes had charge of putting up the machinery. Re-exemined. From the ridge to the second floor is about twenty-five feet; don't know much about the spark-catchers of the engines. There was a stairway and hatchway every fifty or fifty-five feet, but no aperture over the engine track in the floor; at night have seen a man who said he was a watchman. Abraham C. Frazier.-Reside in Detroit; was acquainted with the construction of the depot, and the character of the machinery in it; am a mill-wright and acquainted with machinery of that kind; have follodwed that business for about fifteen years; I worked on the machinery in this depot about three months; I worked mostly putting up the shafting; know of the velocity and'situation of said machinery. There was a large band that run horizontally and drove the main shaft; this band run from sixty to seventy revolutions a minute; this shaft run in the centre in brass boxes, the rest cast iron; some may have had Babbitt's metal; the boxes in pulleys were in iron boxes, about one and a half inches in diameter; one of the pulleys ran from two hundred to two hundred and ninety revolutions; this was the fastest in the building; considerable weight on it; main belt ran over it; the boxes were in wood; some oak. I have known the boxes to get a little warm, but never enough so to create any danger of fire. In my opinion there was no danger of fire from the friction of the machinery; seen similar machinery run with greater velocity with safety. With proper care this machinery might be run one thousand revolutions with safety. From what I know of that machinery and machinery generally, think, placed as it was, there was no danger of fire from its friction. I left the city about three weeks before the fire; during the time I was employed on the building, never knew of fire taking; roof was painted with fire-proof paint;'walls of building were of brick. Cross examined.-This machinery was put up with more than'ordinary precaution against fire-the boxes were of the ordinary metal; the wood at the pully of greatest velocity was perhaps within an inch, and was, I think, of white ash, a small frame made for the purpose. The shaft I spoke of was about seven hundred feet; there were a great many pulleys connected with it; the pulley I have spoken of revolved considerably faster than any other connected with the elevator; one of the pulleys is very near one of the bins; this is the pulley I have spoken of, it was ten inches in diameter; never saw any merchandize on second floor, only saw flour and grain there; generally had lamps to carry about; I have been in the upper part in'evenings when men were at work there; don't think the depot was extra hazardous; I assisted in putting up some of the machinery-a man named Tower also and Buaty; It had been commenced by Hawes, but he left before I came. The elevators were up when I came. Chas. H. Tower-Reside in Detroit; did not reside here at the time of the fire; was acquainted with the Depot and its machinery; am a mill-right; have been for 10 years and have had charge of conduct and running of such machinery as was in said depot; I work 24 ed on the depot about three months at the machinery, putting up shafting, &c.; know the situation, construction and mode of running that machinery; recollect the band that turned the main shaft; it was not connected with the elevator; recollect the pulleys used to tighten the band; the pulleys ran at different rates; some ran two hundred and fifty; no part of the machinery ran more rapidly than those pulleys that I know of. In my opinion the machinery and fixtures connected with it were not liable to take fire from friction; in my opinion there was no possibility of it so taking fire; the fast pulleys I have spoken of were about ten feet from the nearest part underthe cupola, not estimating the perpendicular which is some thirty feet. The Cupola was based on beams that were above the second floor. The wheat bins were nearer pulleys than was the Cupola; one pulley was eight or ten feet from the bin; this pulley was in castiron boxes set in wood, four by six, of either oak or ash; at the time of the fire I was at iM'ichigan City-had been absent about six weeks; the moveable lights generally used in the upper part, were lanthorns, and stationed ones were candles set up on the oak posts; the posts were about one foot square; in the centre the floor was twenty-eight or thirty feet; in the way it, was kept access was free to persons from the street to go up to the second floor: the stationed lights were the ordinary tin sconces with long tin backs. Cross examined-'Don't know that they kept a watch to keep strangers from going up; the lowest pulley on the main shaft was about forty inches diameter; -here was one of that size on the main shaft, and one on the intermediate shaft; the tightening pulleys were ten inches in diameter; one of the latter was the one near the bin; there was a floor and only one to the cupola; that floor was about two feet above the ridge of the main building; some ot the machi= nery was above this floor; some of the pulleys were; there was a tightening pulley fixed on the floor the same size as the others, and with the same kind of boxes; it was fastened on a frame and the frame fastened on to the floor; the velocity of that pulley was from one hundred and sixty-five to one hundred and ninety; it was near one side of the cupola, perhaps two feet from the side north; there was also a couple of wheels and shafts above said floor, iron wheels, one shaft extended nearly across the room; it was three inches in diameter. The cars used to go in and out occasionally in the evenings. Don't know that the Company were in the habit of storing goods extra hazardous, I think not; dont think there is any probability of fire having taken from friction; were it not properly taken care of I don't think it could have taken fire from the machinery; don't think it could under any circumstances. Direct resumed-Generally passed from the second story to the cupola by stairs; no door between the second floor and the cupola; usually freight trains were pushed out and drawn in by locomotives; frequently trains were longer than the building; was often there after the machinery was put up; never knew of fire taking, or of dan 25 ger from sparks; roof inside white-washed so that would be protection from sparks; on engines they have spark catchers of fine wire with openings less than a sixteenth of an inch square; never knew of anything in the depot taking fire from those sparks; the apertures were not over the track, and they had trap doors with which they were usually closed; whenever cars come in employers were round. Re-cross examined-Don't remember the boxes ever getting heated; I frequently examined the machinery after it had run some time and never found them warm: have so examined the pulleys in the cupola. Francis Mahew sworn-Reside in Detroit and am a carpenter and joiner; have worked for the Railroad Company about four years; I assisted to put up the machinery in the old depot; I know the construction of the shaft-its journals were in composition metal; mostly all were in composition boxes; the evening before the fire I was at the depot; I was at work at the wheat house; vwas there till six P. M. the evening before the fire; I was not in the depot but was round the premises; I should judge the machinery did not run fast enough to heat the boxes; I have put my hand upon them when running to ascertain, and they were not heated. Cross examined-I so examined them two or three days after they first run, and it had been running an hour; I examined them again a day or two after when it had been running one or one and a half hour; I examined for curiosity to see if it got hot; did not examine it after; don't know how many pulleys there were; I helped to put up three; guess there was only one pulley in the cupola; cupola was oak iu the big timbers; boards were plank; floor in the cupola was pine; think two I inch boards; was there the morning after the fire; the second floor was burned up; went there about seven A. M. the next morning. Resumed-Mostly left but the naked walls and a few big timbers at one end; all the beams of the second floor were gone. Edwin Ives sworn-Reside in Detroit; am a a mill-wright; worked in repairing the old depot machinery. was here at the time of the fire; was then employed on the machine of the lower wheat house; have worked at mill-wright business eight or nine years; had been frequently in and knew somewhat of the machinery of the old depot; have had charge of such machinery, flouring mills and elevators in my business; as far as I looked the boxes were of cast iron. Supposing the pulleys to revolve two hundred and fifty, I should think from my experience that there was no possibility of the fire taking from them; I think they could not generate fire whether oiled or-not; I consider it one of the safest I ever was acquainted with; have put up three sets of elevators in Buffalo myself: not positive but think I have seen sconces hung up on posts; never knew of fire having caught in the building; never heard any of the hands say aught of heat in the journals. Was at the fire; when I saw it the cupola was just tumbling in, about two or three A. M.: when I first looked out the fire was in 26 the cupola and beginning to extend; I went down and went into the lower part of the building; no fire below, only smoke from above; I went on the lower floor near to the centre of the building under the cupola; the fire was all above; no fire below at all that I saw; I entered the building at the lower end; it seemed to me to burn slow. The building was white-washed inside; I think that would be some protection from sparks. Was in the building sometimes at night: don't know that I ever saw a watch. Cross examined-Don't know whether they had been elevating wheat the night of the fire, nor what hour the doors were closed that night: was not first at the fire: wasat my boarding honse a quarter of amile from the depot: was asleep and awoke by the cry of fire: fire had not commenced on the roof when I first saw it: from outside it appeared to be entirely in the cupola; I don't know but I could have gone farther than the center of the building if I tried; I went in to get out the cars, &c.; helped to get out the cars; they seemed load-.ed; don't know if this night there was any thing but machinery in the cupola. Resumed-When I went into the building if the hatches had been open I would have seen the fire through them, but saw none. The examination of witnesses, in court adjourned till the 7th at 9 A. M., and the Jury discharged till then, for the purpose of hearing an application for bail in the case of Gleason. No application having been made for the bail, Court adjourned to the 7th of June at 9 A. M. FIFTH DAY. SATURDAY June 7. Solmon Wood-I Reside in Detroit; I run a stationary engine; that is my occupation. I remember the fire at the depot; was then employed running the engine in said depot. I run the engine at night. That night it stoQiped a quarter before 12 at night. Thefire, before I left, was let run down; the engine eg was pumped out or up and every-.thing secured. To my knowledge, it was not run again that night. Do not recollect that any locomzotive came into the building that night. Cross examined.-The engine was run for elevating wheat and flour that night from the cars. The engine had run from 7 in the morning to6 in the evening, and then from 7 P. M. till a quarter before 12;.stopped one hour at noon: I left depot a quarter before 12: think the outer doors of depot were not closed when I left: I was not about the 2d story that night, Daniel Stewart had charge of the men elevating that night: can't call the men by name: don't know whether cars came in or went out that night: know what lights were used up stairs: when I speak of elevating, I mean from the cars to the bins. I believe they were not loading a vessel that night nor during the day that I recollect: was not my business to do sueh: they may have been loading a vessel during the day. Re-examined. —Engine was near centre of building, and to one 27 side, enclosed by brick wall: was north side of building: engine about 18 horse power; I had been runing engine about 3 months: over engine was lath and plastered: had no call at all in the upper rooms: I went up once or twice to see how journals worked: when I looked engine had been running 2 or 3, hours, or more: would not go for such purposes till the engine had run enough to create heat, if at all: if at all, it would be in 6 or 8 hours it would create heat: when I so examined, the boxes were not hot: think journals were in soft metal boxes; (Babbitt's,) no part of building was ever on fire while I was there: I was about 3 months there: I was some distance away and was not at fire till about 6 A. MI.; from 6 to seven the engine was still: if the journals had been heated, an hour would be very nearly sufficient to cool journals of their size. To Jurors.-Wheu I examined, it was a month before the fire, or more: I was not sent to examine by any one ajar in the engine was the moving cause for me to go up to make it run smooth: from my examination did not apprehend the least danger. John W. Brooks. —Reside in Detroit: am Superintendent of the M. C. Railroad, and have been since the fall of 1846: I drew plans of said depot: the building belonged to M. C. R. R., and was directed by them under my supervision: not all detail under me but general outline was: I have been acquainted with such machinery for 8 or 10 years, and have attended to and put up such machinery: I have superintended and changed the speed of this machinery: at time of fire this machinery had been running about two years: during said time my practice was to go through the building four or five times a week: I often calculated the speed, my familiarity with such machinery enabled me to so calculate; the velocity of the greatest speed was on small tightening pulleys, which ran 240 to 265, but its journals being smaller, did not traverse more or make quicker motions, or more friction than any other part of the machinery: the frictions in the journals of this pully was less than others, because smaller and less weight than others; the journals were of Babbett's in harder metals: the quality of Babbett's metal is to prevent heat: in my experience never knew it to heat: it was the intention to have all journals in Babbitt's, but can't say from actual knowledge that all were. To Jurors. —From my experience the Babbitt metal will melt and run out before it will heat the journal: we never had one melt so, therefore cannot speak with certainty, but this is expected to be the first sign. of failure. To counsel. —The machinery was ordinary with very little weight: the friction would be in proportion to weight: I have examined the journals several times: can't remember their being ever heated: when I made my examinations it was at times when it had been running sufficient time to heat, if at all: I usually examined late in the afternoon or evening: never found them heated at all: from my knowledge of machinery, don't think they would have heated, even if not oiled: were slow moving journals: value of building and fixtures about $80,000: I refer to what was destroyed, not including foundation: I should certainly know if fire to any extent had ever been communicated from engine sparks: never knew of any such: from my knowledge of this and other machinery, think not the least danger of fire from friction: have put it up again in the same way, as to the upper part of the building: up stairs used ordinary sconces and glass lanterns: latter were used for moving, the former stationary: nothing to prevent egress of persons up stairs and to cupola. I got to fire when it was in the second story under cupola: there was no fire below: I was in the lower part till almost every thing was cleared out: think I got there about 3 or 4 o'clock, but this is mere opinion: when I arrived the cupola was all on fire: saw this before I got there: the hatches were open on second floor: they are over the platform: don't suppose the sparks from engines could get up there, they are about 20 feet from centre of track to one side, and about 6 feet higher than engine chimney: the cupola was not over hatches, should not think possible that sparks could go from engines to cupola: engines do not throw as much sparks in depot as when in the country running. Never knew of fire from sparks in a depot, have heard of sparks setting fire when running before spark catchers were invented, they are a great protection: the building was whitewashed inside, some inches of mortar on inside of roof, and outside of roof fire proof paint. Do not know if a train came in that night, no regular train did: at that season the trains were usually longer than building and engines pushed them in. There were a number of cars in at the time of fire from the West. I am satisfied no train came in. Our hands varied from 20 to 50: at time of fire there must have been a watchman and some men who slept in the building. Along the road we have 7 setts of elevators of similar character and that move with as much velocity: never had fire from friction in them: some used as long, some less time than this. 1 never knew of fire from such machinery. We have some that run 3500 and some 4000, I have known them run 5000. Most of our depots are lighted in the same manner as was this. Van Arman states letters were received and witness will have to be recalled as to the other letters, &c. I received the letter in my hand, signed Abel F. Fitch, dated October 29, 1848, Michigan Centre; think I received it from PostOffice, it is post marked. Cross examined-There were side windows in the cupola, about four. We did not insure it, never insure any of our buildings. I had a conversation with some agents of Insurance Companies at one time. From my own knowledge I think this building would have been regarded as less than hazardous: wooden buildings generally would be more hazardous: if the machinery made any change it would be to make it more hazardous, such is generally the effect of machinery in a building. We took all the precaution we could to diminish the hazard. The locomotive round building would also be regarded as increasing hazard. I never insured for the Company: about 50 lights, 8 by 10 in each window of the cupola: no lights in roof of the cupola. 2nd story of main building lighted by lights in roof, more than 20 of them, less; than 40. Cupola not plastered inside; floor of cupola was above ridge of main building, do not know what it was of. The main wali. 29,of the building were from ground eighteen, or seventeen and a half, to eaves, the ridge, perhaps twenty-six or seven higher; cupola was about thirty feet square, boarded up outside with pine boards, I think about one and one fourth inch boards. I was not there late in the evening before the fire, do not remember how late. The depot" at Ann Arbor, I have heard was burned before tie Company bought the road. I may be mistaken as to size and number of lights in the cupola. I think they were high and above reach from the roof outside: do not know if they were fastened. I do not recollect of any fire at the depot at Jackson in'47: any slight fire might be without my knowledge if no material damage was done. Resumed-Engines increase hazard, but we took such precautions as to avoid the extra hazard we undertook to and I think did so. I do not think the locomotives materially increased the hazard: I -think it was much safer, engines, locomotives and all than if cut up into stores and each with a fire. Witness identifies the Co. as same mentioned in the act of 1846, and now put in evidence. At time I went in where the fire was going, saw no fire below or about the engine. the ceiling of the engine room was one foot thick, and filled in between joice with brick, and grouted; generally win. dows in cupola were kept closed, but if much dust, when men were there, somtimes opened. To Jurors —The hatches were open: the custom was to leave them open: I looked through them and saw fire, perhaps fifteen minutes after I got in: when I first saw fire it was in the interior of the cupola. To counsel —I think for goods the rates were lower for insurance n the depot than any store in town, save the fire proof one at the foot of Woodward avenue. To Jurors —In some cases locomotives ran into the build.ng but, not ordinarily; ordinarily would not go in to within 300 fee't of under cupola. Hallock, juror, asks —Did you express any opinion at times as to origin or cause of fire. Seward objected. Van Arman argues juror or court has a right to put any question competent on chief or cross examination. Fraser, for prosecution, waives insisting on the question. Cross examined —Don't know whether vessels were loaded or not that night: would not know: windows to 2d floor were on both sides of roof alternating. SIXTH DAY. MONDAY, June 9th, 1851, Capt. James W. Turner —I reside in Oswego, New York: I am a sailor: recollect the burning of the depot of Central Railroad last fall: I was laying in front of depot at time with schooner Odd Fellow, of which I was master; was lying in front of depot at the Railroad wharf: I saw the fire: I had been taking in flour, and had dropped down there to takein flour: I went on board my vessel and read 80 newspapers till about 10 P. M. evening of fire, then slept on settee till 11 P. M., then went to state room: about 2 A. M. waked by vessel touching us, and went up on deck: some were talking of fire: I looked up and saw fire then very small: some said that it was not fire: I said it was, and roused up my hands: I:saw a few buckets would pnt it out: looked, but saw no way of getting up on building. than ran up to Johnson's Hotel and called fire: then went to Savinac's, who I heard was a fireman, and I roused him: when I first saw it, the fire was in cupola, and about the size of a half bushel: think it was higher up than the ridge of main roof: smoke was small, and fire seemed confined to one small point: afterward extended very fast: about 2 A. M. when I first saw it: my 1st mate was ashore and came on board and turned in about 12 o'clock. Cross examined-Had not been loading my vessel at Railroad depot: there were vessels below me, but don't know if they had been loading: fire was I think above roof of building in cupola: there were 5 or 6 men on deck when I saw the fire: depot is about 40 or 50 feet from water, and no building between. To Jurors —Think fire was inside of cupola; I lay about one-third way down the building: my stern was not quite down to cupola, but. nearly so: I did not go into depot, it was closed and I could not get in: would if I could: after people came, went in below and saw no fire below: then I went in at another end. To counsel-Also went in after people came, and doors were opened to get things out. John B. Cochran-Reside at Marshall, Calhoun Co.: my occupation has been on Railroad several years: season of 1850 lived with a man named Holden, one mile or three-fourth south of Michigan Centre; I lived there from 20th August to 20th October: day time worked on farm; my object in going there was to act for Railroad, protect its property, and try to find out who caused engines to be thrown off track, &c. W. H. Seward objects, and asks that portion of the answer struck out which shows engines to have been thrown off. Van Arman contends that the Prosecution can show acts of destruction of the Railroad property, in accordance with the general intent and combination to destroy the property of the Railroad Company. Seward-Don't intend now to discuss the general question raised by Mr. Van Arman. Van Arman-We agree for the present to strike out the part as to the cars having been thrown off. Witness —I remained off and on to the 20th of October about the Centre; my business was to protect property of the Road; my nights I spent where I thought I could learn the most; sometimes at one fence and sometimes at another; I was three or four times a week at Filley's tavern; I saw persons there, the number generally varied from six to twenty; among those I was in the habit of seeing, I have heard their names called there;, seldom was light in the bar-room where I saw them sometimes there would be more and sometinme less of them the e; I heard some of their ren arks. 31 What were they talking about? The question was objected to by defendant's counsel. Van Arman for the Prosecution states that they will proceed to show that the persons who so met were some of the defendants, and that their conversation was about the Railroad Company; and will show by other witnesses that what they said was that they had banded together for the purposes stated in the opening, i. c. for the destruction of the Railroad, and to burn their depots if they could not otherwise effect their object; an agreement to pursue a series df offenses of which the burning of the depots was the last. Mr. Frink argues that the indictment is for a single offense, and the prosecution cannot prove other offenses, or go beyond proof of an agreement to hire Gay to burn the depot mentioned in the indictment, and cites, Roscoe p. 81, 2 Russell on crimes, p. 701. Mr. Van Dke for prosecution-The indictment now before the court is for the single offense of burning the depot at Detroit; but it is competent to introduce evidence tending to show the existence of a conspiracy generally to injure and molest the Michigan Central Railroad Company; and embracing within it the design to do this particular act now charged. The fact that the proof of such conspiracy embraces other facts and offenses is no objection-if they all spring from a common design a grand concert and plan-and are continuous in their nature. Wherever principal and accessories are charged with a crime, it necessarily involves the existence of a combination and conspiracy among them. And the doctrine of conspiracy here is applicable and competent to prove the design of the defendants, to raise a legal presumption against them, to show the possibility that they are the guilty parties, and to give the full history of the whole transaction, from the beginning of their design to the consummation of the act for which they are now indicted. Cited the following cases: 1 Greenleaf on evidence, 54a58; Starkie, 51, 56a58; 1 English Crown cases, 531-375; 13 Cuy C. L., 123; 4 GreenleaFs Rep., 172; 4 Boss and Puller, 20; 12 English C. L., 105; 25 English C. L., 343; 6 City Hall Recorder, 43; 1 Starkie on evidence, 499; 2 Starkie on evidence, 222. Mr. Fraser, on the same side-It is competent to show the original combination, and acts in furtherance of it down to, the burning of the depot, to give a full and complete history of the entire. To show the character of the transaction, to prove the identity of the prisoners and connect them with the coimmission of the crime. Also, to corroborate the testimony already produced, and to establish the hostile feelings of the defendants. All these tend to prove the issue in the couse. And cites: 2 Hawkins, 619; McNally's evidence, 346; Boss and Puller, 93; Archibald's crim., p. 110-109; 1 Philips' evidence, 180; 3 English C. L.,:282400; 24 English C. L., 253: 9 Pick., 518; B. & A., 573; Al Wend, 73. Mr. Seward, for the defence-To the general rule that proof cannot be given of other offences than the one charged, there are but two exceptions, 32 1st. Where the acts offered to be proved are a part of the Res gesta, not remote and distinctly referrable to the matter in issue. 2d. When introduced to show scienter, or intention. I" All the casess cited by the prosecution come under one or the other of these exceptions. The acts offered to be proven occurred at different times and places, and under different circumstances, and cannot come in until they are shown to have been done in furtherance of a design to burn the depot mentioned in the indictment. Cites Roscoe, 88; 2 Burr's trial, 426. Court-As submitted by the argument, the main question is whether the prosecution can show repeated and separate acts done under a general scheme to compel the Railroad Company to comply with the terms of the defendants. I am of the opinion that it is competent to prove all acts done under the general scheme, and in furtherance of its designs. Under the supervision of the counsel and the direction of the court the case will not be prejudiced by allowing all acts done under the general scheme to go to the jury. SEVENTH DAY. TUESDAY, June 10th, 1851. Witness Cochran resumes-I have stated I was in the habit of going to Filley's and meeting and seeing persons there. Mr. Seward objects to this witness telling what was said unless he can identify the persons who were there. Mr. Van Arman pledges himself he will identify the persons by another witness, though this witness cannot identify them, and urges the convenience, almost necessity, of taking the proof a little out of regular order in a case like the present. The Court —The great necessity upon which courts take testimony out of the regular order does not appear to exist in the present instance. To witness-Did you see Mr. Wescott at these meetings? Objected to as leading. Van Dyke and Van Arman argue names are an exception to the general rule. C. and H. Notes to Philp. Ev., 722, 3 and 4. Court-The question is leading. Witness-I was there from the th of A the 2 0th Athe 20th of October, 1850. I have seen Mr. Wescott, Mr. A. F. Fitch and Ammi Filley at those meetings; don't know as I could recognize any others, but heard persons there called by name Heard the name of Williams called there; can't say if any one answered to it; it was in Filley's bar-room, and there was a good deal of talking and drinking. Those I have named, save Williams, I have seen more than once there; used to see them three or four times a week there. On one occasion I was refused a light. I called for a glass of liquor, it was set on the bar for me, I asked if they couldn't afford a light, some one replied they could not. There were half a dozen of them there then. 33 I was a stranger, not acquainted wfth the people of the neighborhood; don't recollect who was there that night; I could not tell one from another, not even the one who handed me the liquor; I cannot specify any one meeting at which Fitch and Filley were present; I don't know that I can state particularly the matter of any conversation while I remember Fitch and Filley to have been present. The meetings when Fitch and Filley were there sometimes broke up in good season; sometimes they held till 11 o'clock; sometimes they assembled early in the evening; I never could get near enough to them to get the run of their conversation; generally talked low when I was around; have seen Wescott at the meetings. fiequently; don't know that I ever saw Wescott with any of defendants, save round Michigan Centre; have seen him in the streets evenings with a crowd of citizens round the Centre, and at the meetings at which the defendants were present; the persons there talked in clusters; I never could get near enough to tell what was said; when I approached they talked some nonsense, yarn or other; theXacted cool and quiet and started some subject when I approached. I have at nights watched along line of Railroad track, and have seen persons approach at night; frequently have seen persons walking along and beside the track. One evening during the time of State Fair at Ann Arbor, in the forepart of the evening, I placed myself where I could see" the movements round: I saw a couple of men come out of Filley's bar-room and cross over the track, and as they crossed over they spoke of widening the track; they crossed over and came down east side and went out of my sight: I lay there about two hours and saw another man coming from the north; he walked back and forth over twenty or thirty rods, and after a while a second man joined him, (this was 9 or 10 P. M.,) as they came near me heard them speak of a certain whcat buyer, and walked back again out of hearing: I heard cars coming from the east; when I first heard the cars the two men walked back north; when cars passed, they came back again, and a third man with them, who came from Filley's ball alley or orchard with a gun and bayonet,and all three came up to the track; one of them said'they run so slow we can't do any thing." Another replied, if we can't do any thing else we can stone them like hell; then the one with the gun said if I could see one of the d-d railroad spies I would spear him d - d quick. There was not much of any thing more said that I heard until we heard the cars get into Jackson 3 or 4 miles off: heard the cars leave Jackson and cross over the bridge, then one of them said the cars from the west are behind, and I will go home: then the one with the gun and one of the others crossed over the track and went east, and the other went back north perhaps 30 or 40 rods when I heard report as of two pistols: I was within about seventy or seventy-five feet of them when I heard the conversation: I was on south side of track, in corner of lot where there is an old house near Filley's: I could not recognize the persons. This was in September, 1850. I have seen persons at other times along line of road; I know some and most of those who were grading the road; have seen others besides them; have seen them along in thq 3 34 evening near Michigan Centre and down to the marsh: have not seen them late in the evenings: did not see them do more than pass along on line of road; once (but can't say if it was intended for signal or not) the night I saw the man with the gun, the first one gave a whistle very peculiar,began with a sort of tune and ended with a sharp and shrill whistle: there was no reply that I heard,but at once after it the -second man came up. Cross examined —I have been on the road 8 years last month, save a short lapse of three months. Re-examined by Pros.-There never were threats to me personally, nor did I hear any save the night I saw the man with the gun, against 4spies generally. Cross-examined-I am engaged at present on the road by contractors, but not directly by the Company: before I went to Michigan Centre, as above, I was employed in a gravel pit; I boarded about a mile or three-fourths mile from Filley's, with Holden: I think Sylvester; boarded there most of the time I was a watch on the road: I:made it a habit to lie in watch every night on road, unless too tired: about 20th of August to 1st September, I first knew what was Wescott's business there; I can't say how many of us were employed vwatching there: Filley's was a public tavern, and the only one I knew there; there was a store and a post office there; I saw persons -round the post office, as in other places; think I have seen unusual -crowds at Filley's, and they centered there every evening as is not Msual il such places: I do not profess to know all who were employ-'ed by Railroad Company as spies or otherwise round there: can't say I know the persons who made the meetings, were citizens of that place: a man named Dixson was in the employ of the Company; don't know his:given name: I was a spy, and so was Dixson: I also saw a man there from Jackson, in the employ of Company, and another from Jackson with him; and others who were off and on; one was named Van Allen. The night I called for liquor, can't say how long I had been there; it was a man who gave it to me: can't say who was in that night, could not distinguish any one, it was dark. All that was ever said to me about compensation, was, I was to have the same wages as I had on the road,,12s. per day; don't know that-Filley had some men employed building ball alley: one Dexter;il his son were the only men I knew around there: during day I worked on the farm with Holden; I had hired out to Holden by the amonth; it was my business to learn all I could; never received any.edirect instructions to watch any one in particular; I watched Fitch:and any one I suspected; my attention was directed to no one in particular; I watched any one I suspected or even heard of being aeonnec.ted with injuring the Road: Fitch, Filley, Corwin and Williams, were ones I so heard of and watched. The night I saw the man with the gun was not the first night of the fair, but the fair had not closed; can't say that it was second night of the fair; don't know when any of defendants resided at Centre; Fitch and Filley lived there, and Corwin a part of the,4time; don't know where Williams lived; Fitch's business I can't 35 estate with certainty, think he pretended to be a former; heard he was one, but don't know of my own knowledge; the place where.the three men were is where the highway crosses the track; the railroad runs east and west, the highway north and south. When I saw Fitch the first time to know him it was at Filley's, where a letter that made some fun round was by request read by him; saw him afterwards perhaps eight or twelve times; Fitch lived across the street from the tavern; the night I first saw the men the moon was not up, but afterwards it was bright moonlight. Re-examined-Witness recognizes Filley and Fitch among prisoners; -does not, and would not if I saw him, recognize Williams; it was over one hour after the first man came before the three finally.separated. To juror-Filley kept public house; it was a frame house; don't know the number of rooms; the first time I went tothe Centre I was, and save then never was in any part save the bar-room; it is a large house; more than one room on first floor; never saw these persons save in the bar-room; never found or knew anything of the pistols I heard fired that night. Peter E. Demill-Examines the letter shown him, and says he is acquainted with the hand writing of A. F. Fitch, has'seen him write, this letter is in in his hand writing. Van Arman proposes to read the letter. Seward objects on the ground that the cvrpus delicti is not proven. Court —Letter may be read. Seward-Note exception, and also exeeption to each portion of the testimony of the last witness. The letter is read to jury, and is as follows: "Michigan Centre, Oct. 29, 1849. "J. W. BROOKS: DEAR SIR:-Almost every day some persons wish to take passage on the cars at this place, but the trains refuse to stop for them. Yesterday Mr. G. C. Chatfield, mother and sister, wished to take the cars for Detroit, and gave the usual signal, but no notice was taken of them. Now if this policy comes from you or your legal advisers, as did the insulting half pay proposition for killing cattle, if serious accidents do occur on the road, on your head, and yours alone, must rest the responsibility. "Yours, &c,, ABEL F. FITCH." George W. MeMichael-Resides at Spring Arbor; knows Wm. Corwin, who, before his arrest, resided some where near Leoni; Leoni is about twelve or fourteen miles from Spring Arbor: he had some conversation with me about the property of Michigan Central Railroad first in the month of September last, in the village of Jack-,son, back of Morrison's grocery; he wanted I should go in with him and help to tear up the railroad track; he also wanted I should help him to set fire to the depot of the railroad at Jackson; he said we should be well paid for doing it; he said Fitch would pay us; he said he wanted to injure the company all he could, that they run,over cattle and would not pay for them; did not state if any others were engaged with him; he spoke to me of it three different times, 36 each time soliciting me to go in with him to do it; he said we would make more at that than at working; once or twice he wanted I should go with him to his home; I have known him three or four years have known him intimately; no one right by at either of the conversations, but think they were heard, as a man subsequently spoke to me of the conversations. Cross examined-Have lived at Spring Arbor about seventeen years; am a fnrmer: carry on a farm with my father; am twentyfour years of age last September; can't say what day in September I had conversation with Corwin; don't know what brought me to Jackson that day, think I went after iron; I lived once at Jackson,. lived there about three weeks a year ago last fall; was selling liquor on my own account at the Astor House; don't recollect when I first become acquainted with Corwin; have known him three, four or five years, or more. The first conversation was, I think, in the afternoon, about two.or three o'clock; don't remember where I first met him that day; I had seen him round at different places and had been with him that day; we met in Morrison's grocery, and he asked me to go out with him, and we went back of the grocery; have no means of fixing the precise day; I saw no one present; the man who subsequently spoke to me of the conversation is Wescott, Morgan Wescott; don't know as I ever had any confidential dealings before with Corwin; it is seventeen years since we moved to Spring Arbor, but I have been away sometimes; think in the spring of 1848 I was in Mexico; I was gone nearly two years; went in the spring of 1846; after my return I saw Corwin within a few days. Our second conversation was in October: in reply to the first I said I did not know, I would see about it: we went back of he grocery talking of one thing or another: he introduced the subject: wanted I should go home with him, tear up the track, burn the depot, and we should be paid for it, &c.: he then lived somewhere near the Centre: I said I was busy and could not go home with him: I was busy in my blacksmith shop: I did not ask Corwin how much money he would give me: don't know how long we were back of the'grocery, not over half an hour, I think: have given all I recollect of that conversation, but we talked first of unimportant matters, did not say when I would answer him: don't know as I gave him any encouragement: I did not say I would or not: said I would see about it: don't know where he went when we separated: think I went home coming out by the side of the building, and think he went into the grocery: the conversation was close by the side of the building in the rear: the building extends I think six or eight rods back: did not notice a fence round the yard: I think there was none: think there is a barn down back of it: did not notice it particularly, think it is boarded up and unpainted; we went out of the front door and down the alley to the rear of the building; I was from home pretty much all that day; think I took some iron home with me; think the grocery is painted green or, brown; know it is not white; don't know that we went to the rear of the building more than once; can't tell but I think it was the last of September; am not certain but I think 37 itwas Saturday; I bought iron of Degraff, if any: my residence is about seven and a'half miles from Ann Arbor; don't recollect but I think I got a ride home as I generally did; there are teams from Spring Arbor there nearly every day; during forepart of September was engaged in the shop rented by me near father's place. From this to the time of the second conversation I was round Spring Arbor. The second conversation was in the same place as the first, back of the grocery in October, in the fore part of the month, I think before the 10th; can't tell the day of the week nor the time of day, somewhere about the middle of the day; went this time also out of the front door of the grocery and down the alley to the rear; same said as first time; he began by asking what I thought about what we had been talking of before; I said I didn't know, I would see about it; we were not this time more than eight or ten minutes there; we were before this a little while in the grocery together; he had no other business with me either of these times:; don't know what was my business in Jackson this time, think I was after groceries; sometimes I bought groceries of Williams, but don't know as I did this day; can't recollect my business this day, generally went after groceries or iron; think I rode down but don't recollect with whom; I got to Jackson at nine or ten A. M.; don't know what time I left or got home; think I got a ride home but don't recollect with whom; Corwin had on a straw hat, don't recollect his other dress; generally was in his shirt sleeves; didn't see any one else at either conversation; don't recollect that we talked of any think else that day; don't remember if I drank with Corwin that day. The third conversation was a day or two after the second; I saw him by Van Allen's grocery in Jackson; don't recollect my business there that day or who went with me to Jackson; our conversation was inthe back room of the grocery; there was a number in the grocery when we went into the back room; Van Allen and Pearson, I think, were in the grocery when we went into the back room; he said he wanted to know "if I was going into that with him," that was the first of the conversation; I said I thought I had better not, I was going away, and he told me to keep it still; did not tell him where I was going to; I was going to Brooklyn in the same County: don't recollect but think we were not over five or ten minutes in the room: I met him at Van Allen's, and it was not more than a few minutes till we retired to the back room.'Westcott spoke to me of the conversation with Corwin; Westcott now lives near Clinton; the next who spoke to me of it was Mr. Holden. Westcott wanted to know who it was that was talking to me; -this was in Jackson and before the second and the last conversations, and within a day or two after the first; my memory is pretty clear that the second and third conversations were in the fore part of October; Henry Holden is the one I mean; It was about three weeks since he spoke to me of it; I had never talked to any one but Westcott about the conversation till then; Westcott began by saying he had heard it and I had better get Corwin not to go into it; I didn't 38 tell Corwin anything of what Westcott said or that he had overheard;I said to Westcott I wasn't going into it and it was not worth na — ming; don't remember when I was first notified that I was needed as a witness, but it was by Holden; I first told the conversation toHolden about three weeks ago; never have been and I am not now in the employment of the Railroad Company; Holden is the man. who sent for me-no subpoena; did not pay my expenses or promise, nor did any one else; don't recollect of being out of Jackson till I came here since my return from Mexico, save last winter when I was in Tecumseh. I know Wm. Gunn, one of the defendants. Seward notes exceptions to the testimony of the last witness on thegeneral ground decided yesterday, and also on the ground that the corpus delicti is not proved. AFTERNOON SESSION. Henry Brown sworn-Reside in Jackson: know Abel F. Fitch Ammi Eilley, O. D. Williams, E. & R. Price, Lyman, Willard and Erastus Champlin, Wm. Corwin, Jack Freeland, Ephram E. Bennett, Dr. Moulton, Jacob Tyrrell, Grandison Filley, Abner Grant, Lyster Penfield, Wesley Walsh, Minor Lacock, and John Ack rson. Witness here identifies the prisoners as the persons he has named. In April, 1850, became acquainted with the most of them; was, then living with Ammi Filley at Michigan Centre; now reside in Jackson village; went to live with Ammi Filley in April, 1850; I lived with him about two months: was employed to work generally for him; he then kept public house; frequently saw those personsmeet at Filleys; could not identify the times, but they met often; snmetimes in the day time and sometimes at nights; at uights they' would generally stay till 10, 11 or 12 o'clock, and some would stay all nights at times; Fitch never stayed all night; Welsh I have seldom seen at Filley's; Moulton and Penfield were not so often thereas the others; Ackerson was not there generally at the time of meetings; came as any other person; the others met there habitually andi often. There was a general topic of conversation. What was that topic? Seward asks to confine the answer to some particular meeting. Question withdrawn. Have heard Filley speak of R. R. Co. at these meetings; have' heard Filley say that he could have no feeling or sympathy for this. company; heard him say that people who traveled on it had better be cautious, they had been warned not to travel on it; have heard threats that they would let them (the company) know there was a God in Israel; they did not say particularly how they would let them know it; have heard Jack Freeland, Mr. Fitch, and Mr. Filley say something about God in Israel; have aiso heard them speak of the dry marsh; have heard them say, Mr. Filley in particular, that the dry marsh would be a good place to let them off the cars; they allowed. it would be a good place to let the cars run off. 39 Freeland, Fitch and Filley said they had warned persons not to. travel on the road; don't recollect they said anything in particular of hand bills, but said they had warned them; they said they wanted the road pay up for cattle killed, &c. The persons I have named, talked the above matters freely among themselves, but shut up before strangers; when they have been talking so and have seen others coming they would not continue the conversation if the new comers were not connected with them. Did not hear Fitch or any one say the lengths they would go if the company did not come to terms. Have heard Filley say, as far as they were concerned together, it was their wishes not to reveal the secret; his words were thus: If any one of them should betray them or come out from them, they meant to stick together, and if they found aly spies they would move him so he could not watch as spy or anything else; heard this two. or three different times; have heard the same threat from Freeland, Jack and Ammi Filley; others were present; recollect Fitch was. present at one time, but did not say anything about the largest num-. ber assembled; don't recollect, sometimes seven or eight, sometimes nine present at a time of thesethreats; there were generally more in evenings than in day time; have heard Filley say he had tools calculated to tear up the track; one time, speaking of the road, Filley said (alone) to me, if we were a mind to go to work, he had the tools; one time in the evening he proposed to me we might go down and:go to work on the track below his house, east of his house; did not say more particularly than to work on the track. This was late on Saturday night, ten o'clock or after; my reply was,'I had no interest in it; he then said to me to say nothing about: it. While at Filley's I found a couple of bars under the stable floor,, one a claw bar used to draw spikes out of tire, the other a heel bar for prying up anything, used on Railroad to lift bars in taking up track. I after saw the same or similar bars on the edge of marsh, (dry marsh); they were close by the fence, under grass, on Filley's land, same kind: can't say if they were the same; first found them concealed under the floor of the stable; those under the stable floor were moved before I found those near dry marsh, heard Jack Free-. land once say there could be a plan fixed to blow the cars up; this was when he was dropping in clover seed on Filleyys hill. Joseph Wells and I were together when he said so. It was thus: To conceal powder so fixed it would explode when the cars run over it; he said this was a plan talked of, and thet it could be done at the dry marsh; he said he knew it would work, and when they passed there it would blow them off the track. Cross examined-Began to work for Filley on the first of April, 1850, and quit last of May; by meetings, I mean they gathered at Filley's; they met -in number from-five to six, not always the same men- bar room open to all; it was there I generally heard the conversation; can't say how often Fitch was there; it was frequently; Filley is his brother-in-law; have known Fitch to stay to ten or eleven o'clock; I can remember instances of his staying over a fewminutes; can't state the evenings, but several times he stayed till 40 ten o'clock; Filley's house has several rooms below; a bar room, kitchen, two parlors, dining room, several rooms in the second story, some large; neuer saw them assemble in the second story; the lights used in the house generally were tallow candles; sometimes the bar room was lighted, sometimes not; as a general thing when I was there the bar room was lighted. I never had any conversation with Filley about the bars I found in stable and near fence, not with any one else until sworn in Detroit to-day, before coming on the stand, when I made an affidavit at the request of Esq. Wood. Filley had Wolliver, Wells, and Freeland to work while I was there. I have never worked on track and never knew Filley to do so. Am sure it was Freeland who made observations about blowing up the track. Wells said nothing. He said they had a way fixed toblow up the cars as they passed over. I was keen to hear, to see what might be done in such a case. Filley had a large farm, don't know how many acres, he was a good deal engaged in hunting birds, and had men engaged preparing them for the Detroit market; some of these men were at the meetings; Filley never offered me tools to injure the railroad, or told me where to find them, nor did any of the defendants. Don't know how far Williams lived from Filley; it is three and a half miles; can't say who was present when Filley said he had no sympathy for the railroad; he and I were there, and others whose names I can't call, as I don't recollect particularly. Can't say if it was that or another time, it was said, they would let them know there was a God in Israel; three of them said the last thing at different times; did not hear all say it any one night; the remark of God in Israel was made in the bar room; heard Freeland make that remark in a number of different places; can't specify that Freeland, Eben Price, or Williams was there when Filley made that remark, or Richard Price, or L. Champlin; can't name any one who was prseent save Filley and myself. It was on the track where we sat down when tired, that Filley said the dry marsh world be a good place to throw the cars of. Heard Fitch say one evening in the house, that people had been warned not to travel on the road; not many there at that time, Joseph Wells, Filley, myself and others whom I can't remember were there. I have seen Freeland there different evenings, more than once; but can't specify the evenings. The first to whom I mentioned what I knew of any particular occurrence was this morning; before I told them they did not know any thing about it; was supcened to come here by Mr. Wood; I came, here, (to Detroit,) not expecting to be supcened; I came to see and trade a littte; I have received money from Clark since subpened; received three dollars. did not want to stay. Jacob Wolliver-Reside in Marshall; have resided there since the seventh of September last; before then resided at Concord, 41 Jackson County; I once resided at Leoni, in the summer of 1850; resided in Leoni for about eight months, or near that. I worked for Ami Filley most of the time; I was there some on his farm, part of the time grading on the railroad, and part of the time catching pigeons; know Moulton, Jacob Tyrrell, Abner Grant, Eitch, Barett, three Champlins, Hiram Hay, Grandison Filley, two Prices,, M. T. Laycock, 0. D. Williams, W. Corwin, E. Farnham, W. S. Warner, N. B. Lemn, (by sight,) Jack Freeland, Eii Beebe, J. W. Welch, Russell Stone, Henry Showers, John Ackerson, John Ladue, J. Cann, Benj. F. Gleason, and who are the same on trial; some I knew before I went to Michigan Centre, and some I did not; Corwin, Farnham, and Warner I knew before I went to Michigan Centre; I went to work in May, 1850; but have been there often during the preceding winter. Remember the Fair at Ann Arbor; during that time I lived at Filley's; some of the defendants were in the habit of meeting there; most of them were there often; some of them most every day or evening; sometimes twelve, sometimes nine; outside of defendants, persons seldom called; think the tavern did little outside of the custom of defendants; they came at times three or four together, sometimes more; generally occupied the bar-room; have seen them go in and out of the kitchen; have seen Fitch there generally every day and evening while I was there; they talked a good deal in relation to the Railroad Company; that was the general conversation; not very public before strangers; when no strangers, openly before themselves. Their conversation was as to taking up the track, injuring the road; that people had no business to travel on the road; they had their-property injured, cattle killed, &c.; and if they could not get revenge in one way, they would in another; that the people in this and Eastern States knew of the trouble on the road; they would never give up till perfectly satisfied for damages done the inhabitants of that place; would carry out their object; their object was to injure the Railroad all they could; would stone them, and throw them off the track, and have revenge in some shape or other. Have seen all the defendants, I have named, at meetings, and where there was such conversation as I have stated; have heard all I have named make such remarks. They appeared to be pretty well agreed as to the matters. Have heard them call Capt Fitch's name often; but do not say they were a band, or he their Captain; but heard most of them say they would aid and assist each other; heard Filley, Corwin, Prices and O.D.Williams, and most all I have mentioned say so; it was a general every day remark; heard them say they could not convict them; they were too strong, and would swear for each other and get them clear; heard Corwin, Win. Price and Filley say they would swear as above stated; this was said in the presence of the others, and all decided they would stand by it and swear each other clear; also heard them say what they would do with the Railroad spies; they considered Wescott and Dixson spies, though not at first; by Railroad spies they mbant any one who was watching their movements; if certain of it, they would put them out of the way; knock them over; heard 42 Corwin, Filley and Wm. Price say so; it was generally talked among themselves, and in the presence of pretty much all I have mentioned; don't know if Palmer or Warner were present, or Wash when this was said; believe it was said in the presence of Barrett, and he did not appear to make any reply; Doct. Moulton told them to look out for the Railroad spies, for they were watching; have heard him say so often; have heard Chaplinss say to the same effect, that defendants must keep a good look out to see who was watching them, and Dixson and Wescott were suspected by them; heard Gleason, defendant, speak of a letter that had been received, containing intelligence that Wescott was a spy; he said there had been a letter written that W. was employed by the Railroad to watch and detect persons living in MichiganCentre; I forget who he said wrote the letter; think he said he saw the letter; said he saw the letter at the State Prison, I think, and from it gathered W. was a spy; don't know that in consequence they took any more measures than to watch him; he, Wescott, was at the tavern almost every day while there; he was not there a great while before they began to suspect him, perhaps a couple of weeks; I recollect on a Sunday I first heard of the letter: Gleason came down in a buggy from Jackson; think some one was with him; don't know who; I was at Filley's when hecame up; Eben Price, Jack Freeland, Barrett, Nathan Credit and others were there when he came; it was then I heard from Gleason that W. was a spy; before that some said he.was, some that he was not; heard Fitch before then say they had best look out for W.; he thought he was watching the movements of the people; after Gleason came down, heard Fitch say they would have-to look out for W.; he believed he was a damned Railroa spy; heard Fitch after Gleeson came, say any damned Railroad spy ought to be shot; heard all the others named,say the same, save Warner, Walsh, Farnham, Grant, Lang, Stone, Hill, Lemn, Myers, Burnett, M. T. Laycock, Grandison Filley, Jacob Tyrell, Barrett, Erastus Champlin, Hay, (not) L. Champlin. All the other defendants I have named I have heard say so. Those I most saw were Fitch, Filley, Corwin, Wm. Price, Champlins, at meetings. Heard Lemn say it was too bad people got property destroyed,they should get compensation, and he would aid them in suits for compensation; don't think he was present when they talked over depredations on the Railroad, but Fitch was, and 1 heard him (F.) say what he would do if he was in the place of the people who had cattle destroyed; that he would tear th9 track up; and if he could not get satisfaction in one way, he would in another; heard him say so before others often; lit was the great talk in the meetings. EIGHTH DAY. WEDNESDAY, June 11th, 1851. Court opened and prosecution announced the sickness and absence of Fitch, one of the defendants, and enquired whether the trial could go on in his absence. Mr. Seward, for defendants, said they would consent to have the case proceeded with until the examination of Woliver, the last wit 43 ness called, was concluded, and pledged himself that no advantage would be taken of it in case it was an error. Mr. Van Dyke said they did not doubt the good faith of counsel in giving their consent, but the question was whether the case was not beyond the reach of counsel and court, whether it would not be a fatal error in case of a verdict. Mr. Seward said that technically he had no doubt but it would be an error, but he supposed a stipulation of the party and counsel, placed on record, would obviate the error. Mr. Frazer said if the party, Fitch, and counsel would stipulate and place it on record, as that the record could be made up as though he was personally present, they would go on with the case; which was agreed)to, and a stipulation was accordingly drawn up, sent to the jail for Fitch's signature and placed on file. Mr. Erastus J. Smith; one of the defendants, gave bail in $3,000 to appear from day to day, on account of the severe illness of his family.' James Champlain, not on trial, also entered his own recognizance in $2,000 for his appearance at the next term of court, Jacob Woliver on the stand, proceeded with his testimony-On the Sunday Gleason came down he said he came to notify them Wescott was a spy; Freeland, Fitch, Filley and others were by when he said so; Burnett was also present; am not acquainted with Miles Barbor; I think Joshua Wells was there that day; whether present when Gleason said so I don't know; Gleason said he wished to notify them so they might look out; Filley said he was a railroad spy and ought to be knocked over; heard Filley repeat the same remark after, and have also heard most of those I have named say the same, that Wescott ought to be knocked over and got out of the way; I know plans were laid for that purpose; it was talked among the men there; they asked me if I thought he was a spy, I said not; some thought he was, some not; they proposed to get him down at a card table in the right position, and dash something through the window at him; at the tavern at Michigan Centre this was to be done; this talk was in Filley's bar-room, and was by the Prices, Corwin, Filley and 0. D. Williams; the plan was laid and talked over; I told them they had better let it alone; don't remember that he was invited there for that purpose. I have known of some of the defendants putting obstructions on the track of the road; recollect when engine Gazelle was run off the track, about 19th or 20th of last August; I was up to Mr. Price's haying for Filley; we boarded at Price's, and Ammi Filley came up and made proposals that we must throw the cars off that night; we went over to Penfiield's saw mill and took an axe from Price's; started about dusk from Price's; Ammi Filley, myself and two Prices (defendants) were the party; we went to the railroad; got there about nine o'clock-; about one-half or three-fourths of a mile west of Leoni, at a culvert, a mile post near by; we broke the chairs that confine the bars, and moved the track to one side; the train from the east was expected first, we supposed a passenger train; a good deal of travel on the road then; we did it to throw 44 off the train from the east; there is a high bank there; the train from the east would fare hardest if it came along; the bank six feet highor more; we then went off forty or sixty rods and laid down; a pretty dark night; we were in sight of train when it ran off; the train from the west came first, a passenger train, and ran off; I did not see the train after it was thrown of, but Filley and Price went over next day and said there was a good deal of damage; after train ran off we went back to Price's; after It ran off Filley and the two Prices said to me, now no matter how many we have killed, don't you speak of it or we will, kill you; they have threatened me repeatedly that if I said anything toward detecting them they would kill me; that all could,not be taken up, and some would be left to follow me, go where I would, Recollect law suit at Leoni in Sept. 1850, vs. Company, by Barrett, I think; once went up there on foot with Ammi Filley, and he returned with me on foot also; I then lived two miles west of Centre; I was at work for Filley; after we got back from the law suit, Filley and I went down to a culvert west of Fitch's, and put a tie into culvert so as to strike the train expected from the west; fastened stick so it would strike about the lamp of the engine; the train expected-was a freight train; also placed a mud sill near by across the track; it was 12 inches wide, 7 or 8 inches thick, and about 12 feet long; we then went back to Mr. Filley's. I heard Fitch afterward say that he and Filley went down there when the cars came along; this conversation with Fitch was next morning; Fitch said they went down while the cars were stopped, and asked one of the hands what the matter was, the man answered nothing; that he asked another, who said you d- d hounds, every one of you should be hung up; and that while they were remaining there to remove obstructions, he and Filley got on to the train and reversed the breaks; Fitch said to me that was a pretty good trick you and Ammi playea last night; he said his object in reversing the breaks wasto hinder them getting along; said it did hinder and bother them getting up the grade till they found out what it was; I was not out that night when the cars came along, and don't know what train did pass. Recollect in September last an attempt was made to obstruct the cars near the marsh east of Filley's. Ammi Filley said to me I want you to go along with me; I am going to give them hell to-night at the east end of the switch; he took his axe and we went up to the east switch at Michigan' Centre, at west end of the marsh; this was almost an hour after dark; he said to me you must watch, and he went and tried to get the switch bar loose, but it was spiked so firm he bould not get it out; he then pounded it with his axe till one T rail passed the other about two inches; he said if they passed it was far enough, they would go off anyhow, could not get rid of going off; and we went home. The cars did not run off that night, struck rail and sprung back and saved them; bank there four to six feet high; the rail was set for freight train from the west; that night Filley said his design was to injure the company all he could, and d-d if he would'nt. 45 Recollect one night an ironispindle beinglaid on the track in the forepart of September, 1850, at night, at the first switch west of'Michigan Centre; Mr. Corwin and myself went over to Fitch's and got the bar, it sat up against his door yard fence, it was pretty heavy,. five feet long, about as big around as a mans' arm; we laid it in the. frog, frog is a little open space where tracks cross each other; placed no other obstruction that night; the bar filled up the frog so as to throw up the cars; cars did not run off that night, were thrown up a little but came back on the track again; we calculated to throw off freight. train that night; Corwin said to me we will get the bar and run them off and stop them here to-night.' Wednesdasy about 8 or 9 o'clock, A. M.:, I saw Fitch; he said you must not take any thing from my house to run off cars with, for they will suspect.me; he said take any thing else you find, but take nothing from my house; don't know how he knew what we had done; Corwin and I were talking, and he came out and spoke as above; Josh Wells was absent that morning, don't know if Sherman was, don't know that I know of any other attempt to throw off or obstruct by any of the defendants. I know of the cars being stoned once, west of Michigan Centre, near Mr.Fitche's, about fore part of September, 1850; just before the passenger train from the west came, the two Prices, Wm. Corwin and myself went toward Fitch's garden, and we throwed stones at the cars,I heard them strike the cars and saw the glass there next day;a good number of stones thrown, heard people in the cars cry and halloo; this time I went at the instigation of the two Prices and Corwin who proposed to go and give them a few stones. Recollect similar occurrences at Filleys in September some days after the two Prices, Wm. Corwin and myself were there; some of them said the cars are coming near, let us go and stone them; Corwin said we will give them hell again to-night. We went out and stoned them; Richard Price threw out of Filleys orchard, the rest went up the track higher: it was a passenger car, I think it was hit, as there was glass along the track next morning. Remember another time along in the same month, between Leoni and Michigan Centre. Ami Filley and I were up there and met Corwil and Williams, we went to Leoni and met there on our way home, about half way between the two places, After we met there he said hold on, the cars will be soon along, we will get our pockets full of stones and give them hell to-night. We all went up to the track and waited untill the train came along. Williams and Corwin stayed more East than Filley and I; Williams and Corwin were in the bushes near the track. Filley and I went farther West and stopped; when cars came along, threw stones, and the cars slacked up near Filley and I, and then went on again and were stoned again, and slacked up; heard people halloo in the cars, it was a passenger train going East. I afterwards spoke with Fitch about these several stonings; he said it was right to give them hell, that was his general conversation in. talking these matters over, have heard him say so a number of times. Do not think I ever threw or knew of stones being thrown at freight. 46 trains. The object in stoning passenger cars was to make people afraid to travel over the road and go the other way, i. e. round the lake. It was so talked, and I have heard Fitch state that as the object, also, I have heard Fitch say it was well known from one end of the road to the city of New York, of the trouble on the road, that it was in print. Have vheard him say he did not care whether people were killed on theroad or not. He-saidhe didn't care a damn how many were killed on the road, they were aware of, and had no business on it. People knew what the trouble was and had no business on the road to risk their lives, they had warning enough. I recollect a ball at Leoni, I was there, it was I think on the 8th of July, 1850; the cars were stoned that night. I was in the ball room, Lyman Champlin, Eben.Price, Hewitt and Davis were there. Price came and said the cars are, coming, let us go and stone them, and we four went out. Davis and Champlin went down a little ways farther than Price who stayed with me. I saw Price throw two or three stones, heard stones strike the cars, and people in the cars hallooed; did not throw myself or see Davis and Champlin throw, they were a little ways off; a passing train. Have heard some of the defendants speak of having witnesses to swear them clear if accused or arrested' for any of these things.Have heard the greater number of these I have first named say so. I have heard Filley, Corwin, O. D. Williams, two Prices, Fitch, Gleason, Lyman Champlin and those I don't'recollect speak on the subject of witnesses as above to swear them clear. Fitch I heard say they could not convict them, they would all hang together, could not get a court that would convict them, they could get witnesses enough to swear them clear if taken; all the others at different times have said the same thing to me. They said they could not get a court that would convict them in the County. I have heard Corwin and Williams speak of Lesters case. When speaking of swearing people clear, they named those who would do it; they nrmed John Ladue, Wm. Dunn, John Cann or McCann, Wm. Jenkins. Corwin Williams and Prices mentioned these men for that purpose. Had conversation with Fitch relative to revealing what I knew of the transactions of defendants in relation to the road at his house just after the State Fair, about the time 1 left there. He knew I was going; he called me in and said he did not want I should go off dissatisfied, if I was not satisfied, would satisfy me; did not want I should reveal anything, as it would be the ruin of him and the rest of them. He said if not satisfied to go to his barn and take wheat until I was satisfied; he wanted I should go off satisfied and not expose them. I was about leaving the neighborhood, I was going toAlbion to work for Railroad Company; he knew I was going to work for Company. Previous to this I had expressed dissatisfaction to Corwin, Fitch and others. I went, in a short time after; said to him he owed me nothing and I did not want his wheat or property without paying for it. When I went to throw off the Gazelle, Filley had whiskey along; I was thenin the habit of drinking; usually got liquor at Filleys, most 47 of it was not paid for; they used to call one another up to drink and seldom paid, but sometimes did. After I left the neighborhood I worked at Albion and lived about four miles from there. When there a few weeks, Filley came up to seeme and, as he said, to caution me against saying anything of the ~operations at the Centre; if I exposed them they would kill me; they could not all be convicted if exposed them, and some would be left to kill me. He appeared quite friendly; he had a double barrelled gun and large knife; this was Ammi Filley; this was at Albion, he said his business was to talk to me on this subject, had brought his gun as he might see something to shoot: Fitch had said to me I would be lkilled if I should ever reveal anything, Frink asks note of exception to the testimony of witness on general grounds before discussed. AFTERNOON SESSION. Cross examined.-In May, think 15th, first went to work for Ami Filley. Before then had no particular acquaintance with any of the defendants, but had seen and knew most when I saw them. To Van Arman —Know Wm. Wescott, saw him frequently around the Centre while with Filley and Fitch. Have seen him at Fitch's house and around with him, appeared intimate, for part of the time was at Fitches almost every day, spent much of his time with Fitch, and have often seen them talking together privately. Cross examination resumed Saw defendants, some of them at Filleys before I went to: work for him, think I saw some of them there the very'day I went to work, and right along after. Think the first day I met them, saw E. Champlin there and also Doctor Moulton; Moulton was a practicing physician, don't know what his business was there this first day, also saw Tyrrell there first day' cannot say if he was there the same time as Moulton, also saw Hiram Hay there, think he boarded there; cannot name any others I saw the first day. Tyrrell boarded there part of the season, don't know if he did that day., Name the first time you saw any considerable number together there. They were there often; it was not very seldom that I saw considerable number of them together. Those who came most frequently were Champlins, Tyrrell and Barrett; Tyrrell was at work for Mr. Shoemaker in a cooper shop; Shoemaker had a flouring mill; Tyrrell continued to work there most of the summer; Barrett was working at making waggons most of the time; Harry worked at the same'place and business as Tyrrell; Credit and Grant both lived in the place where Corwin did; have.seen Corwin there very frequently; lived one and a half miles or so ~from tavern; the two Prices who lived three miles off; they were there very frequently in the evenings, they lived east of tavern; when I saw these men at Centre, it was in bar-room I used to see them; -used to be in and out a good deal in bar-room; used to do chores around. 48 There are several rooms on first floor; think four besides bar-room, some large; have seen these men in other rooms than the bar-room;. but generally were in the bar-room; the door of bar-room opened from the street; while I was there Filley sometimes had eight or ten men. to work for him, not a great many of defendants; don't count the others among those who made up the meetings; for some four weeks he had eight or ten men to work for him while building side track which he commenced in June; Fitch I saw there almost every day and almost every evening; sometimes he did not stay a great while, and sometimes he stayed till nine or ten P. M. The railroad was the general subject of talk; the cattle killed by it, and the injury to the inhabitants. Heard Filley say he never meant to give up; also heard Fitch. say they should never run over in peace; heard Corwin, Williams, and two prices say it at the same time; that they would stone cars. &c.; I have heard it said by Corwin, Filley, Williams, and Prices, that they were determined to carry out the preparations they had commen'ced, till the company came to terms and paid in full for thee cattle; heard this every few days, it was the general talk,; Corwin never told me that railroad had injured him; never said they did or didn't; bvt said he meant to have the ethers c,ary out their plans; don't know that Williams or tha Prices ever suffered any injury from the road: did not see the sameindividuals every evening; sometime some of them and sometimes others; Filley's -is the only tavern in the place; there was very little travel there, and strangers seldom came there, though sometime a stranger did stay there at night; there are mills there; some,but not a great many ofthose who came to the mill, came up to the tavNern. Name those who made threats;? L.'Champlain said they would have no peace running over the road till they gave satisfaction; this was at the tavern where threats were made, they were often speaking of what had occurred on the road. David Moulton I have heard speak with the rest and say they had better pay for property destroyed, if they wanted to run there; with safety; it was in the bar room he said so: E. Champlin had a horse killed by the railroad after I went there. Stand by each other." Have heard that said by Corwin, Fitch, Filley, Williams, &c. Heard Fitch say so in the street, and in'the bar room. Don't know that I can state the first time I saw Williams at the tavern. When I first heard any thing said ahout spies, I had been there a month or six weeks; have heard all of those mentioned speak of spies: think it was Filley first spoke of it: he said they were afraid some men were watching them; Fitch told me the same when I had been there five or six weeks; don't know as Fitch named who he suspected, but in September he alluded to Westcott said he believhe (W.) would not stay with his father-in-law, who was poor, unless for some object, 49 The time when Gleason came down, the conversation was outside Filley's door; Filley,E. Price, Fitch, Freedland and myself, were there; it was Sunday, and Freeland was there; I was not there when Gleason first came up, but was soon after. LAW SUIT AT LEONI." I was not subpoenaed as a witness, but they thought they would want me as a witness to prove about killing of cattle by the railroad; don't know if it was return day of process that I walked there with Filley; think it was adjourned day; saw Fitch there; think it was on second adjourned day that the tie was first put upon the t rack at culvert; the day the tie was put up Filley and I got home about dark don't know that it was the day a circus was at Leoni; don't remember if that day any one went home with F. I.; don't remember if Mr. Joy, of Jackson was at Leoni that day; think Lem. was; don't know whether Fitch had returned home before F. and myself; think I saw Fitch at his house that night after tie was set; don't recollect if Jack Freeland was at Leoni that day; Filley proposed putting down the tie; the tie lay close to the culvert: culvert not deep; end of the tie was fastened against some of the timbers underneath; culvert not very wide, less than ten feet; I retired before Filley that night: about ten o'clock next morning told him in substance that we had been down and obstructed the track, he said Filley and he had been down after and told about the breaks, <4c.; Filley was present: don't know if any one came home from Leoni and stayed at Fitch's that night: Fitch stated to me the object of putting breaks on. Obstructions attempted by Filley's, in September, close by the tavern. Corwin was one who attempted it: put iron in frog: got the mill iron at Fitch's: took it without leave. Recollect distinctly that Filley came up to Prices: that was about the 20th of August, one half or three-fourths of a mile west of Leoni, we obstructed the Gazelle, and threw her off: it was pretty late when we returned to Prices, we slept in the barn; Filley returned with us from Prices where we went, about three miles: after that time have been with Filley to Leoni once, twice or three times: sometimes came on track, sometimes not: remember coming home on track after the Gazelle affair. After that, Corwin, Filley, Williams, and myself stoned them, as told, when we werecoming from Leoni; did not see Williams or Corwin throw stones; I know Filley threw, I did also; this was near Freelands, as the train was going east; I think I told Fitch of this stoning; he said it was right, give them hell; he used that expression, have heard him use it often; don't know I stated to him the object; but he often told me the object was to make people afraid to go over.the road; we generally talked it over together; dont know who was' present at the time; it was out in the street, opposite Filley's; has said the same in the tavern, at his own house and on the road. Ball at Leoni, I was at it; I went, towards night, with a man who worked for Filley; Geo. Filley went with me; not positive, but think the ball was on the 8th of July; was at Coykendall's; don't recollect 4 50 if Samuel Brick or Updyke was there, nor Darius Davis; don't know him, don't know Mr. Jackson, know Taylor, dont know if he was there; attended other balls there, was there on the 4th of July, but didn't wait for the ball; some of the Champlins was at the ball cf the 8th, Lyman C. was;it was almost 11 o'clock when we went out to stone the train, I think it was going east. Have heard Gleeson speak more than once about railroad; Gleeson came to Centre about once a week,generally on Sunday; heard Gleeson say at Filley's they would stand by each other as witnesses; cant say if this was same time as speaking of letter; don't remember who he spoke to, but Filley and Fitch and others were present. Gleeson arrived at Filley's along in the forenoon,about two weeks or so after Wostcott came to the Centre: he said he had seen the letter; don't recollect if he said who wrote it; he said the letter satisfied him Westcott was a spy; don't know he said who it was directed to; W. said he saw it in prison at Jackson; he said he came to tell of it; I think the person who came in the buggy with him was presents don't remember who that person was; I went in the employ of Filley in October; the day I was leaving, Fitch told me to come into his house; I was in the road; this I think was the day I left; the cause of my dissatisfaction was, I didn't think Filley paid me as much as he ought for my labor, and he charged me six or eight dollars for liquor, and I didn't think I had so much; I drank every day while there. Price one day gave me a key that unlocked the bar, and told me to keep it; I expressed my dissatisfaction to Fitch that day in the house; I did not claim pay for the obstructions from Filley. I did not send word by Mr. Dexter to Filley to come out to Albion to Centre; I know a man named Dexter who worked with me at Filley's, and also at Albion; if I had so sent him I think I would have remembered it; do not recollect sending him word that I had baited for ducks and geese, but did tell F. so after he came; I had been baiting for them; 1 lived about four miles from Albion at the time Filley came; he came to me at Albion; I had not been in the employ of railroad before I went to Filley's; don't know I ever proposed to any of them to stone or obstruct; think I never did so without the assistance of some of them; I let off the water spout one night at-the Centre; Cawell was with me: I have made an affidavit at Marshall as, to what I have testified to last winter, Mr. Clark wrote it; I made more than one as to these matters, some three or four: they were made at Marshall; first was made about November, the last, the last of January; I have seen them since, since 1 came down here; have read them over once since I came here; have not seen them to read since I commences being examined; read them yesterday morning; am now at work for railroad company; have not had frequent conversations with Clark about what I'd sworn to, nor particularly with counsel; believe Clark had the affidavits last; yesterday got them from Clark, when I read them. As to what I know about the matters, I first talked with Charles White,agent of the railroad; after,with Clark Spaulding and others,told them what I knew, and as much as I have sworn to here. One time Fllley and I met Williams and Corwin; cant describe the dress of Williams; it was a pretty dark night in September; was: a suit at Leoni that day; think it was Barrett sued; am not very positive, but think it was one of the nights returning from the suit I met them; that time we came down on and met the.n on the wagon track; wagon road not far from railroad; met them about half way: W. and C. were on foot; it was about or a little after dark; they appeared to be going the sameway as we were; learned they were coming across from their own place; Filley and I were not going to, but w re coming from Leoni; have not said otherwise to any of them; don'trecollect the day of week; don't recollect that any one save Filley started' from Leoni with me; we picked up our stones along by the railroad; think some were picked up before we got to the railroad; don't know who picked up the first one; we all picked up, I picked up some in the wcod,we put stones in our pockets; I had a coat on; don't remember what kind of a coat. Know two roads near Bakers; it was about half way from Leoni we met; it was nearer the Centre than the roads, the roads cross nea Barkers; Some trees, not many along there; don't remember if we got over fences going to the Railroad. Filley and I went to Leoni; think we were alone; do not think Fitch or Burnett either went or returned with us; did not pick up stones till after we met; I did not throw all I picked up, threw two or three; can't say but think Williams and Corwin were standingstill when we met; can't say from what direction they came. Heard Lyman Champlin say any Railroad say ought to be shot. Sometimes there was light in the bar room, sometimes not. Can't say how often Williams was in the Tavern, more than once; presume he has more than ten times. When Champlin said Railroad spy should be shot, we were talking of Westcott. Defence reserve the right of further examination as to statements as to Fitch hereafter. To Frazer-I read my affidavits yesterday; but have a distirct recollection beside them; do not testify from them but from recollection. To Juror-I never had horses or cattle killed upon the road; got the bar for obstruction at Fitch's; he lives opposite Filley; Corwin said I would get it there; did not myself know it was there; the several acts were proposed to me and no reward offered me to do them. Court adjourned to 12th at 9 A. M. NINTH DAY-MORNING SESSION. TUESDAY, June 12. Hiram Sherman, sworn —Lives at Marshall; have worked for Railroad company since last fall; know three Champlins, 0. D. Williams, Barrett, Fitch, Burnett, Barbour, A. Filley, G. Filley, Wm. Corwin, Tyrrell, Dr. Moulton, A. Grant, Penfield, M. T. Laycock, the Prices, Dr. Farnham, Wm. S. Warner, (not present,) N. B. Lemm, Myers, Jack Freeland, Eri Beebe, J. N. Welch, R. Stone, B.F. Gleason, the defendants; have lived one mile south of Michigan Centre, in 1850; 52 ~ae there'about one year; have lived in Leoni mostly for 14 years; lie'ugan Centre is about four miles west of Leoni village, both in t~m of Leoni; lived on the farm of Delos J. Holden, farming; knew B. Cochran at Holden's; he worked there in August, 1850, he.yed there about a month and a half, more or less; while he was'ieee I went to the railroad with him four times-went to watch the Erlyadin the night; first night, went into Fitch's park near the corTr lpposite Fitch's; Fitch and Filley live on four corners, north side t railroad; Filley lives on the N. E., and Fitch on W. corner, Park s'SN W. corner, opposite Fitch's house; we did not discover any-'&ug that night; next night went to the S. E. corner in Gleason's yrhzd e where Corwin lived; were concealed there about two hours; saw +ree men on the track; don't know whether one or two came first; by -d by another man came and joined them; the two first came out of,ey6s house; don't know whether they first went in or not; think it wsiabetween 9 and 10; think the house most of the time was dark; w'y were about there some time, and I heard a whistle; pretty soon.e third man came up from the north. T- Te whistle appeared to be a signal-one shrill whistle. One of X men had a gun and a bayonet; don't know whether it was one of',e two first, or the last one who came up; they walked about there, - trd them say something about tearing up the track and stoning the zears;, tdon't know that I heard them speak of a wheat buyer; heard',ine n a while, a word about railroad spies, but could not understand ie whole conversation.:-he cars came along, and soon after, two of them went west and one at',rl; I heard the report of what I supposed to be two pistol shots.-'Wts'there two nights after, but saw nothing in particular. This was "aptember, about the time of the State Fair at Ann Arbor. Soon after art about the 4th'of October, at Jackson, 1 was employed by Darius'I^m4 to4 watch the road. I went to the Centre the next day, and was'rh-e' nearly every day for a week; was employed about a month. Saw e-:gad many around the Centre. Generally saw Woliver, Corwin,.thi, A. Filley, Wescott and Dixon. Woliver was not there long sr { fi rst went there. Corwin told me he had gone to near Albion. Fitch and Woliver together a day or two before Woliver left; saw VS Gand Corwin talking privately; saw Fitch doing the same; think it:wv:a day or two before W. went away, and saw them talking in this "y;,everal times; when he was talking with any one else, they would k-e him one side to talk with him; did not hear what was said by remember a fight in the ball alley some two or three weeks after Waiver left. During the two or three weeks saw numbers of meetagsk n the evening, at Filley's house, and at the ball alley. Saw Fitch,.4 D. Williams, E. Champlin and his two boys, Corwin, Price's boys,:;ia, Stone, A, Filley, Barrett, Hay, Penfield, and others there, whose aes I cannot recollect. Wirk I saw N. B. Lemm there once, also Beebe and Freeland.Mwirg the two or three weeks saw them there at these meetings six sewnveia times; were not all there every time; saw as many as twen-. kere one meeting; I most always went home before the meetings 53 broke up. One night after they had rolled a while, Fitch and othei went into the house and went to playing cards; don't know that I evesaw Freeland there at evening meetings. At the largest meetirng they rolled on the alley and played cards; stood in squads and talked privately together. Did not say much to me; they appeared rather to avoid me and Cochran at that time. Saw Fitch and Corwin go u and talk together. At one time I spoke of quittingHolden's, and GCowin said, "I suppose you think you can make more by laying out A night." Strangers came there whom they appeared to be acquaintel with. Others also came, and Corwin asked me if I knew the rm — Champlin also asked me, and said they were some d —d railrca spies. I told him 1 did not know who they were. At the meetings they appeared to be friends, sociable and tre. generally called each other by familiar names, such as "Eb,"'Jacl:", "Ammi," "Dick," &c., and Fitch they called "Captain." The fight in the ball alley was in October; we were rolling onthB alley; Beebe, Corwin and a Mr. Palmer came; we rolled till nearly sunset; (Jorwin and Palmer got into a dispute about the rolling and began to twit each other, and finally had a clinch. Palmer backed Corwin against the wall. I interfered and look Corwin's part; when I stepped out doors, saw Fitch,Wescott and Welch; heard some'talk. between Fitch and Wescott. Corwin and I went out to an old car, and told him I knew he thought I was watching for the railroad; told him I was watching for the roadn> but that whatever he said to me, he need not fear me going to thei road with it, that he knew me well enough for that; that I could watch, on his side as well as for Mr. Clark and the road, and could tell him what the Company were doing; told him I watched for money an. did not care anything for the road more than to get their money; toad him I would do anything I could for them (the people at the Cent'b, He said that was all he wanted; said he did not care how much mHey I got out of the Company; all he wanted was to tell them what the road was doing, and be on their side. I told him I did not want him to mention what I had told him toA Clark, as he would discharge me and refuse to pay for what I had done. He said he would tell no one but Capt. Fitch, and he wondl treat the next time he met me. Said he was satisfied now that I hb.d come out and told them what I was doing, as they had suspected I was watching for the company. Next day Corwin asked me into Filley's to drink, and then we wean out by the road, and talked about an hour. He told me that Fitch. told him that if he (Fitch) had known I was on their side the night be. fore at the fight, he (Fitch) would have pushed Wescott into the room> and locked the door, and we might have hammered him to, deatiL-,_ Corwin asked me if he and I could not go that night and, trim th.. switch, and said we could run the train off there, and in a night or twa go and do it at Leoni, and in about a week go to Grass Lake and dd,. it there; was speaking ofthe passenger train. I told him the switch^ was locked. He said they could do it with a crowbar, and told how i. could be done. Had talk about Woliver; think he told me that he had received a letter from him, and meant to go out and see him. 54 -told him I was afraid they were trying to get Woliver for a witness against them. He said he would go and see him and caution him —a ittle caution went a d- d ways sometimes. Told me I must not reveal what he told me; and as for Woliver, he did not care for him-they could swear him to hell-there were bet-. ter men than I thought, engaged with them. They could swear each other clear, and spoke of Lester's case, who was arrested for obstructing the track. He said they could clear any man if he was caught; that there were respectable men engaged among them, and a great many more of them than I thought-they attended to Lester and said they got him -lear. I told him to wait two or three days, until I moved to the Centre, before we went to throw off the train. Soon after that I was _going from my father's, and saw Fitch, Corwin and two Credits standi:ng and looking at Fitch's door; went to them, and saw Penfield and two or three others come up to Filley's house; heard P. ask if that'was -Sherman, and some one said it was. P. said he could tell by talking with me whether I was with them on the road or not; he came and talked with me awhile, but he did not mention the road; I then went to my house-the next morning I wanted to go to Jackson. Saw Corwin at Shoemaker's warehouse, helping Dixon to load wheat; Dix-oil went over to the store, and C. said to me, whar, d —d fools we.have been that we have not got a load of this wheat, he said if they ltoaded it, and the cars did not go out we could take it that night-said Dixon was the Railroad spy, and bought the wheat for the road; thought it would be no harm in taking it fromt the railroad company. Next morning saw Corwin, Filley, Fitch and \Velch at the Centre. I went there to get a team to move to the Centre; Corwin said he -could get Welch's team for me. The passenger train, going West, -had run off the night before: think it was the engine Rocket or Comet "that had run off. Corwin and me walked along together; he said he had seen Capt. Spauldingthat morning, and Spaulding said "well Bill, you have got us off;" said it was -well done; Corwin said he would earn old Spaulding not to insult him; they had thrown them off last night, "and meant to give'em hell right along for a month;" not cerain whether he said "we" or "I" had done it —said he would let old Spaulding know there would be more done for the next month, than for a year past —it was a passenger train from the east. A day or two after I rode up to Price's with Chomplin at his request; after we got out a little way Champlin said Corwin had to]d him that X was watching the railroad for them too, and that he need not be afraid of me, that whatever I told him I would do, that was the reason lie asked me to ride, as he wanted to talk with me. On the road he old me about a spy being then watching, and said they chased him wvith Fitch's dogs across Wolf Creek, where he jumped in, and they iost track of him. He told me as long as I kept on their side I would be safe, but if I turned against them they would shoot me, and if they could not do it at any other time, they would do it when I came on the stand to tesify against them. At Price's we all went into the shop, and Champlin told them I was 55 watching the road, and was hired by the Company; and that Corwin told him he was acquainted with me, and I could be depended upon; that I was watching on both sides, and would let them know what the company were doing; that I was "all right." Price brought out a bottle, and we all drank. Eb. Price told me in presenice of his brother and Champlin, that as long as I kept on their side I would be safe, and they would stand by me; but if I betrayed tiem, they would shoot me; would follow me to the end of the earth to do it: asked if I knew anything about Wescott being a spy; I told him I did not think he was; and Price said he would be d-d if they could fool him, for he had seen a letter that convinced him Wescott was a spy; said he saw the letter at the Centre. Price told of a plan laid for Wescott; said Wescott had been in the habit of coming to the Centre and playing cards; the plan was to place a seat so that Wescott would sit at the window, and they would stone him through the Window from the outside; those inside, at a signal, were to blow out the lights and jump away, when they were to smash Wescott's head with stones from the outside; this was told in presence of Champlin and the other Price; said they knew he was a spy; and he ought to be killed; this was the plan they had laid, and saidif he had come again, they would have killed him; I spoke to Wescott and warned him; had also heard Corwin threaten to shoot Wescott if he had come down at night. On the road home with Champlin, talked about getting Fitch's farm to work; he said I could get it, for Fitch thought a d-d sight more of me now since I had come out and told what I was doing; he now had confidence in me. About the 7th of Nov., Corwin wanted me to go with him and make a switch: the way he told me they made it was to take an axe and break the bars and fix them so the cars would run off. I told him I would go that night; he said he would go and see Filley, and find where the iron bars were for the operations; I went over to Filley's and found Corwin there; I staid a while and went to the ball-alley; Fitch, Filley, Credits, Harry and E. Champlin were there, and the two Prices came there afterwards; some went back to Filley's:Filley came out soon and told them to blow out the lights and close the alley: the key was gone, and he said some d-d railroad spy had stolen it; met Corwin and Champlin as I was going to the tavern, and they asked me if I knew the two strangers in the house: told them I did not: they said they were some d-d spies, some went to the tavern and some to Lull's store; saw Corwin again, and he said nothing would be done that night. A freight train came along slow, and Corwin proposed to cut offpart of the cars and the next train would run into those that were left. We went up to the train and saw the conductor sitting on the top when we were going to cut off the train by taking out the coupling pin. Corwin said, "G —d d-n him, let us knock him off with a stone," and looked for one but could not find one; he said next time we would godown to the old tavern house, where there were plenty of bricks, and give'em hell. Think it was the next morning I saw Corwin leading one of his horses to water from Filley's stable, and asked him if he was going to Jackson that 56 day; had some talk about the road, and he said it had never injured him any, but what he done paid for all his horse keeping, as he hall kept his horses there some months and had all the oats he wanted to feed them, and besides that it paid for all the liquor he drank, and that was considerable, and thought we had better go in and take a nipper. He spoke of his trading off one of Fitch's harnesses without his knowledge, and said he asked Fitch what he was going to charge him for it, and Fitch told him he would say nothing more about the harness if he (Corwin) would not; he also said he had got five dollars that morning. I went to Jackson on a hand car that came along pretty soon, that morring. At Jackson I was standing on the sitle walk near Morrison's grocery in Jackson, and saw Corwin and'Dudd" Holcomb come up in a wagon; C. came to me and wanted to see me alone; he told me they had been laying a plan to get some flour, but did not know as I would fall in with it, but if I did not, I must keep still; he said they would do it that night and take at least three barrels of flour out of the cars; but before doing it they were going to set fire to a large wood pile up the track, to attract attention; said the way bills would be made out and the company would have to lose the missing flour, and not Mr. Shoemaker. During the afternoon it was again talked over; 1 rode home with them; in the evening Corwin went over and examined the cars, and came back and said it was "all right," the cars were loaded and the doors not locked. I got my supper and went to Lull's store; Corwin told me Eb. Price was going with him to fire the wood; Price was present; we were going over to Filley's from Lull's store; Price went to Filley's to get a place to stay all night after they got back; Filley came out and wanted to know if we were going a fishing. While we were there C. asked Filley for an old axe; Price said-" I have not the first d-d thing to fight with il case of trouble." Filley gave him a large knife and said he hoped we would have good luck, and said if we wanted anything to drink after we got back, there was the bottle. Corwin, Eb. Price and myself started out and went about a mile west: Corwin proposed stopping to make a switch, but we had no tools. Price said, "One thing at a time: we will burn the wood to-night; we went to the wood pile, two went on one side and one on the other, and went around to see if any one was about. They thought we had better wait until passenger train passed, as they would stop and put the fire out. Price said he thought it would be, behind time that night-that he and Williams had been on the track towards leoni that night. Price said that if any one comes we will run to the woods. Corwin said he would be d —d if he'd run, and Price must stick by, him and fight it out. Price took out some matches and Corwin gave me an axe to fight with in case of discovery. They then set the fire; 1 was looking about expecting somebody, as I had before given notice to the road. I walked off, and saw several men crawling upon the ground. I went back to Corwin and Price and stood still; they soon came up and arrested us. Price afterwards, while we were in jail at Jackson, said at first he did not know but it was me or Corwin who caught him;. but he used the knife to the best advantage when they arrested him, 57 but found so many men around he threw it away and gave up. Herethe Court took a recess for 15 minutes. AFTERNOON SESSION. In coming home from Jackson it was agreed to take the flour we were to steal that night to Corwin's barn, and Corwin said he was not afraid to let as big a man as Capt. Fitch know they were a going to steal it, and he would help them cut of it in case of difficulty. While in jail at Jackson, they said if they made a State Prison offence of burning the wood, they must put off the trials, get bail and worry them out. At the time the Goliath run off, Corwin said they had "done it up brown;" she was smashed, but he went home trembling the evening before, for fear it was not fixed right. Heard Filley say he should have to give the company credit for another dollar on account of the smash of the Goliath, as he had done so every time a large accident had happened. Was at Filley's in Oct. or Sept. in ball alley, and asked him where his wheelbarrow was, as I wanted to borrow it; he answered rather ~short that he did not know, and turned away. I told Corwin I wanted it to wheel some wood home, that I did not mean to buy wood as long as the Road had it piled up there. C. told Filley what I wanted to do with the wheelbarrow and Filley asked me to take something, and told me where the wheelbarrow was. Eb. Price said he had made a couple of bars to take up the track. Saw Wescott about the Centre when I first went there; he was familiar with Fitch and seemed to be intimate,walking with him, and some two weeks afterwards, I heard threats against him, and doubts expressed as to his being true. Cross Ex.-I have made a statement ill writing of this matter before I came here; have never been sworn in relation to it before; I wrote it down at the time, as the incidents progressed. I gave the written statement to Mr. Clark about the 1st of January last. I left there about Nov. and wrote some things after I left, which I omitted..1 next had it in my possession, since I came here; I told Mr. Clark I wanted it to look over for the purpose ef refreshing my memory as to dates, &c. Have looked it over twice, the last time last night-my wages were $25 per month while I was a watch, until I went to work out west on the Road; since then I have had $1 per day at the warehouse at Mar. shall. The writing I read over is the one I made, and not a copy; have made one or two additions to the writing since I first wrote it out. I wrote down the names of those 1 knew were operating against the Road at the time, what they said, and when. I noted the date 1 hired to Clark; cant tell the day of the month I went with Cochran, but it was the week of the State Fair; it was in the last of September; did not know the men 1 saw while watching in the park; one had on, a black hat, and think he had the gun and bayonet: think we were about 40 feet from them part of the time; think the moon shone part of the time, and one night it rained some; don't know who whistled; they were three or four rods from the track when the whistle was, 58 -made; should think the gun was a musket; heard only one whistle; could not hear all their conversation; they were talking of tearing up the tra(k; two of them had been there about an hour when the cars came; the third one not as long; he was some 10 rods when I first saw him:coming up. After they left heard the report of two pistols some,distance off. My first talk with Corwin about the matter was after the fight at the ball alley. I commenced the conversarion and told him I,was watching them; did not say I had been sent to watch Fitch in par-ticular; did not tell Corwin my pay had been kept back because I had been unable to make discoveries, and solicit him to go in with me and commit depredations on the road; did not tell Gregory I was to have:1000 for each man I detected; my wages were only $25 per month. Don't know that I ever had any conversation with Fitch about rail road on the night of the fight. The night Fitch went from alley to the house to play cards with others, don't know whether they played or not-that was what they talked of when they left the alley; never laid any plots to obstruct the road; never carried out any plots of any agent of the road to obstruct it. I acted in concert with Wescott when he was there; after I commenced watching, spent most of my Lime at the Centre. Had known Eb. Price 6 or 7 years, was a blacksmith; sure I saw Williams at Filley's in Oct.: am positive I saw the Champlins there in Oct. To Seward-Had no part in throwing the Goliath off; have told no'one that I did, or that I and Corwin did it; no one present when Corwin told me what Fitch said about crowding Wescott into the room, and having him hammered to death. Corwin's habits were not the most temperate; he drank a good deal. I had instructions from Clark to go in and pretend to join them, get their confidence, &c.; Clark told me to spend as little money with them, and have as little to do in committing acts, as possible; but if it -was necessary to pay out any money in the matter it would be re-imbursed to me. I told Spaulding they were going to fire the wood; I was going with them; he told me to go. I laid in jail part one night and one day. 1 was bailed out by a man named Eaton. Henry Martin, Johnson, Burch and White, made the arrest. I was not personally acquainted with Mr. Eaton when he came to bail me. I am 32 years old. Direct Ex.-My recollection of the facts stated are from my memory independent of reading the written statement I read to Clark. Asa Wyman sworn —Knew Dr. Moulton, on trial; had a talk with him about railroads; he said he had heard they were going to blow up railroad; don't know whether he said a road or the road, or if he said either "a^' or "the;" don't know what road he referred to; the conversation was at Rome. Question-Where is Rome-is it in Lenawee, on the Southern R. R.? Ans.-No, I hope not. We were speaking of the difficulties about killing cattle. He said they we:'e going to blow up railroad, we were talkingof all railroads;,can't say we were speaking of railroads in Michigan. I said a cousin of mine, Martin, said the company would pay the value, and the farmers thought the cattle worth more than the company. 59 Cross Examined.-Have never made an affidavit about this matter. The witness said he wished to be discharged so he could go home. The counsel on both sides said let it be done by all means. Joshua Wells was next called, but the hour of adjournment having nearly arrived, the court adjourned to 9 o'clock, June 13. TENTH DAY-MORNING SESSION. FRIDAY, June 13. Joshua W. Wells sworn-Formerly lived at Mich. Centre; know Fitch, A. and G. Filley, the Prices, Barrett, E. and L. Champlin, Jack Freeland, Bill Corwin, Laycock, L. P. Penfield, Dr. Moulton, Tyrrell, Grant, Williams, Ilay, Barrett, (by sight,) Holmes, Myers, Beebe,' Welch, Stone, (by sight,) Seba Corwin, Dr. Farnham, John Cann,'Gleason, Stone. Those persons live on Railrod track; have known some of them 12 or 14 years; my age is 23; I am a farmer; have worked for Fitch,and:somefor A. Filley; worked for Fitch 22 months, from Dec. 1st, 1847; left him in Oct.'49; when I left Fitch's, went home, south of Mich. Centre, three-quarters of a mile, staid 4 weeks, and went to L. Penfield's and remained there till January, 1850, then went hoale and worked on farm; staid there until 11th Nov. last, when I came to this city, except some of the time that I worked for Filley, and some at Holme's; worked at Freight-house before it was burned, in this city. While at Fitch's, saw Williams, Filley, Fitch, Eb. Price and Corwin; he was not there so often during the 22 months; the others I saw often, did not know much of meetings during that time. Heard them talk of Central Railroad; the most was said the latter part of the time i was there; it was mostly by those I last named. Can you tell what you heard said by them during that time? There was something said about its being a monopoly; that a feeling'was getting up against the railroad company, that would hold against them for a long time, because they hired help very cheap; did not pay wages enough; it had a tendency to render wages low; heard not,much said about cattle being killed. Heard Fitch make such remarks at several times; heard Fitch mention a letter he wrote to Brooks about the cars not stopping to take on Mr. Chatfield and family; he manifested some feeling; this is about all I heard while there; while at Penfield's was at the Centre occasionally in the evening; was tending saw-mill for P.; there was some feeling against the road about iron; at the mill one day I told P. they would rhave him up for having his sled shod with Railroad iron; he said he was not alarmed about that, for they never could prove any thing against them; they had tried several times and failed; said Fitch had a long head, and they never could do any thing whith them; he was always on hand for them, and, therefore, he was not afraid; this was in Jan.,'50. During fall of'50 was off and on at Filley's tending bar when he was absent; tended bar some when he was there; I was there twothirds of the time evenings; saw most of the defendants there togeth. er, occasionally; sometimes only a part and sometimes most of them there; they met at Filley's; saw some of them at Fitch's; they gen. 60 erally met evenings; have frequently seen as many as 20 there on occasion of balls; generally 5 or 6 would stay after the rest had left, and talk of road; saw Fitch, Filley, Bill Corwin, Jack Freeland, Eb. Price, E. and L. Champlin, Barrett the oftenest; when they were thus together, they talked nuch of railroad matters; they generally talked among themselves; can't remember any particular time, the meetings were so frequent; at some of the meetings, heard Fitch say he had written letters to his friends, telling them not to come over the Central road, because there were daily obstructions placed on the road which endangered their lives if they came that way; said he did it because they would not pay full price for cattle killed; spoke of handbills, and said he had friends at Buffalo and Chicago, and talked of going to advise people to go round the lakes. The matter was talked over at Filley' s tavern once, Williams, Gleason,Filley and others were present,they talked all about it; Fitch said they never could convict any one-because they could not get a jury that would bring them in guilty, as he had two many friends. Filley said at the same time they could get witnesses to prove they were some where, else-said they could prove it at Bean Creek, they had been there, and had witnesses to prove they had been there; heard this remarked several times; Fitch said they could get what witnesses they wanted down there. Heard Fitch boast of having many friends everywhere, and his great influence; heard others brag of their safety be. cause Fitch had so many friends —heard Price and Filley say Fitch had many friends and would stick by them as long as he had any blood left in his body. When on the track with Filley one Sunday heard Fitch describe how by placing a wedge on the track the cars could be run off-said it would bother and annoy the company; another time heard Fitch,Filley and Eb. Price talk of a plan to place a rail in the track to strike the lamp; a few days afterwards heard Fitch say such a thing had happened toward Leoni; this was after he suggested the plan; Fitch also spoke of breaking the chairs and prying the rails aside. Corwin, Eb. Price, A. Filley, Gleason, Williams and others were present, they all had more or less to say about it; the subject was introduced by Fitch; afterwards heard the plan had been adopted; think some of the defendants told me so next day, that it had been tried about half a mile east of the Centre; Fitch was present when they told it. The cars did not run off: they said if they had run off they would have run 30 feet into the mud. Remember the law suit between Barrett and the company at. Leoni; heard Fitch mention the time Spaulding run on to a log near the Centre. It appeared Spaulding had said something to offend Fitch, and hesaid he told Spaulding he had two double barrel guns at the house, and could get as many more as he wanted,and was prepared to: meet the whole d d Company. Was at Jack Freeland's one Sunday, and he told me about a plan for placing powder under the road and placing a train to the track,so as to explode when the cars went over, and blow up the tack-this was a plan he suggested to get pay for some sheep they had killed. He at another time mentioned the same plan when we were on the hill 61 with Brown, a colored man, sowing clover seed; once heard guns fired; and heard Fitch say they were fired by Elder Limbacker; he laughed about it afterward, and said one engineer had quit the road because the balls came so close to his head,he dare not run longer. One night I, Horace Coswell, and Laycock went round to Fitch's bed room window, and Fitch handed out a pair of horse pistols; never spoke to him about them before; we went through the shed. Fitch came in and gave Coswell a small rifle pistol, and said they were loaded-he told lme to go down towards the dry marsh, and get as close to the track as possTble, and shoot through the engineer's house when the cars came along, at any rate give'em hell-think this was in the fall of the year. The pistol I had was loaded; the rifle pistol belonged to Dr. Moulton; heard Mynor Lacock say he got it of Moulton; heard Fitch speak of having spike bars made, don't know whether he did or not. One Sunday morning Williams and Wescott were at Filley's. Filley and Williams went out of North door and talked; Wescott at same time went out of the front door; I heard a part of the conversation; they spoke of the "Gazelle;" they all came in; Filley asked Wescott to change a $5 bill, and he paid Williams 3. Filley told Williams he understood that Fitch had paid him $10, and he now paid him the balance, and thought he ought to be satisfied. Heard Fitch tell Wescott that it would not be healthy for any one to come out as witness against him in railroad matters, for he would shoot him down from the stand; they frequently all drank at Filley's, but never saw any bills paid; heard Bill Corwin say it was all paid for; Filley kept Bill Corwin's horses, and Bill Corwin said it never cost him any thing; heard Bill say he traded off Fitch's harness, and said Fitch would not dare say anything if he traded off his twin cattle;don't know what he got for the harness; it was a good one; have seen some of defendants in private intercourse with Fitch —mostly with Williams, Freeland, Price, Corwin and Filley; Mrs. Fitch is Filley's sister; Fitch and Filley are brothers-in-law: saw Wescott about three; knew him to come down and see his wife occasionally, while he was tending bar at Jackson; Wescott's wife is my sister. After Wescott came to the Centre to live he and Fitch were intimate; afterwards they became jealous of him. Wescott was frequently at Fitch's house and have seen them in private conversation frequently; he was on good terms with Corwin and Filley until they became jealous of him; this was after Gleanson came from Jackson on Sunday, and said Wescott was a spy. Gleason said Mr. Goodwin (agent) had a letter from Mr. Brooks, saying Wescott was in the employment of the R. R. company. Mills Barber, I think, came with Gleason; they came in a horse and buggy, and stopped at Fitch's and Fiiley's; Gleason told the news to Fitch; heard them talking about it as they were walking towards Fitch's deer park; Fitch in the afternoon asked me if I thought W. was a spy? I told him I thought not, but if he was I would find out: filley asked me if Wescott paid anything for riding on the cars;thought something was not right. Afterwards I noticed they were less intimate, and friendly towards Wescott; I heard a plan to dispose of Wescott, and saw the stones.at the window with which they were to do it; there was also a piece of 62 railroad iron about 3 feet long there; they had recently been placed there. I heard they were placed there for the purpose of assassinating Wescott; they were two or three feet from the house, on the south side, near the stoop and kitchen window; heard them say if they could catch a spy they would kill him; they knew I was Wescott's brother-in-law; heard this mostly from Fitch and Filley, O. D. Williams and Bill Corwin; I knew Jacob Woliver about the Centre; heard Filley say something about his turning State's evidence; Filley said he went out to Albion to see him; heard others say Woliver was straight and right and would not divulge anything; this was before Woliver went away; about the time he went I heard something about his being dissatisfied about a settlement with Filley, in which Filley charged hitn with some whiskey; heard Filley called it a barrel and then paid him a dollar as balance he owed him; heard Filley once ask Fitch what kind of a time he had last night; he replied first rale-that they chased one of them through deer park over the fence where the dogs could not get over; he was speaking of a spy. Filley said he got over the park fence and followed him and fell over a brush heap, and by that accident the spy got away and went through Wolf Creek, or they would have got him. Have heard Filley and Fitch talk about Wescott taking Filley's tavern; they said in effect Wescott objected as long as Mrs. Filley remained there. Fitch asked me if VWescott would take the house, and I said he did not want to do it as long as Mrs. Filley was there; he said Mrs. F. could go east. He said Wescott was the right sort of a fellow to have it, as he could make money. Heard Fitch say they believed Holmes and his wife were spies, and there was an excitement got up, and they talked of tarring and feathering them; the excitement was got up by myself, Fitch, Filley, Barrett, Laycock and Williams. Laycock proposed to tar and feather them at Fitch's dinner table; Fitch spoke and' said the boys were going to have some fun with Mrs. Holmes. Filley said she sat on the fence one night and watched the track, and he knew she was a spy. Filley said he had watched around Holmes' house. when the railroad hands were boarding there,to see if they were watching nights. Heard them say they were in a majority, and had friends everywhere- Have heard something said by them about their being the "Leoni Band." Think I should know the pistols Fitch handed from his window.(Here two fine trooping pistols were shown to the witness, and he recognized them as the ones handed out of the window by Fitch.) They were not fired, because we did not get to the cars in time. Cross-examination-I commenced working for the co. 11th Nov. last; they asked me some questions and I answered them. Wescott firsttold about these operations. Wescott told me I should have a good situation if I would come out and be a man; I was introduced to Mr. Hurd, and he said I could go to work in freight house at 7 shillings per day; did not engage for any definite time. Was there at the time of fire; never talked, of this to any one before I came to Detroit; Wescott said there had been a good deal of difficulty, and that something would be up by and by; did not say whatk 63 After I came here, about the 1st of Dec., Wescott questioned me. about the Road: Joy was present: I made an affidavit of what I knew:: I have since seen it but not readit; Van Arman asked me some ques — tion about it last night; have made two affidavits in this matter. The first talk I heard about Road at Michgan Centre, was by Fitch, in'47 or first of'48; first conversation about firing pistols towards Leoni, was in July or August of'49; when we got the pistols Laycock asked me to go round to the window with him; I did not speak to Fitch: Laycock did not say what he wanted of them; I tried the one I had and found itloaded; Fitch told Horace Caswell they were loaded: the intention was to shoot them into the cars: all I knew was what they told me: I was going to shoot because Fitch told us to do so when we got down to the marsh. Fitch told us to get close up to the cars, and shoot through the engineer's house at the engineer, at any rate give'em helli there was something said about my shooting on the way down: don't think I was dissuaded from shooting by the others: my intention was to shoot according to directions, if I had shot I should not have killed any one. but did not say to any one I would not shoot to kill: the reason I did not shoot, was because we did not get on the spot in time to shoot. After the cars passed, it was said, if we meet any spies now, we areprepared for them: don't remember it being said among us that there was nothing but powder in the pistols: did not hear Laycock or Caswell say there was no ball in them: we carried them back to Fitch's house that night: when we went round to the window after them,nothing was said: Fitch was there and handed them out: I think Laycock took them when we returned to the house: when Fitch said,'shoot at the engineer's house:' think I said'well:' we got back about 10 o'cl'k:think we did not go to any other place that night: don't rememberwhere Fitch was when we came back: I worked there at that time. I once laid a bar of iron across the track to see the fire fly: several men, were standing by, watching. Fitch spoke of the fire: it was not expected it would throw the cars off, only to make the fire fly in the evening: I put no other obstruction on the track. I did not in June 1849, pile ties or iron on the track west of Fitch's near the white bridge, tothe best of my recollection. Here the court took a recess of 30 minutes for lunch. AFTERNOON SESSION. J. W. Wells cross-ex. continued.-Dont remember of placing obstructions on track, when 2 or 3 men came up from towards Jackson, and I run from them. Did you at any other time procure a pistol for the purpose of shooting at the cars? Question objected to as only relating to collateral facts. Frink claimed the -right to show that witness had been guilty of aggressions the same as he had sworn others had committed. FRASER-said they had ro right to go beyond matters drawn out in the examination in chief. SEWARD-It remains to be seen whether the testimony thus far taken this week is not all collateral unless they be brought to bear upon the charge in the indictment; the burning of the depot in Detroit —if 64 there was a grand plot, this witness confesses himself as one of the actors, we have a right to know all he did in connection with the plot. FRASER —They have no right to show, on cross-examination, that the witness and not the defendants committed the offence. If they wish to establish that another set of men did the acts, or that another conspiracy exists, they can make the witness their own; but on a crossexamination they should be confined to the examination of the matter in chief. Court-sustained the objection. The defendants have a right to give the testimony as evidence, but it is not legitimate cross-examination, according to any rule known to the court., Witness-I passed the time of day with A. H. Delamaterwhen he came in the other day. I talked with him on the cars; I did not say to him I was sorry I had ever said anything about these railroad matters. I told him I was sorry I ever knew any thing about it. I did not tell him I did not know any thing about these defendants or any of them; I did not tell him in that conversation that I knew nothing against Mr. Fitch. When I tended bar for Filley I never took pay for liquor of these men, or charged it; have seen them round at Filley's on Sundays and at different times; don't know all the exact days, think most of them were there at different times during the month of August; saw half a dozen of those men there most every day. Filley at one time had about a dozen men at work for him; at the meetings have known half a dozen men to go into the kitchen and stay an hour or two. Fitch, Prices, Corwin, Barry, Filiey and Williams went in often; sometimes they played euchre in the kitchen; no one told me to call these assemblages meetings. Heard Bill Corwin and others say, "boys we must all meet" at such a time, and all be on hand; don't know what else to call them but meetings; they were talked of as meetings; in July, September and October, was most of the time at the Centre, at Filley's, off and on; Gleason usually came on Sundays, but sometimes in the evening. Heard Fitch say it was rather hard to throw the cars off in the dry marsh, but never heard him generally discountenance placing obstructions upon the track. Heard Fitch speak of going to Chicago or Buffalo to turn travel off the road; said it in presence of Wescott, Williams, Corwin and one or two others. If any stranger came up when they were talking about these matters, they always changed the conversation while they were present. Have known this several times; Holmes' boy, Hart, and Filley's boys were sometimes about the bar room. The meetings were sometimes in the bar room and sometimes out doors-think Wescott told me of the stones under the window were common cobble stones, about a dozen of them; heard Corwin speak of going to see Woliver; did not say he had sent for him. 1 went home from Detroit 6th of December, and was sick at my father's house; Eb. Price came to see me; I did not say to him in presence of father, brother, and sister, H. & A. Holmes,that I never heard Wes. cott say any thing about such a plot to kill him, or that I never heard of such a plot; I told Price there had been a plot laid to take Wescott's life, and that I knew something about it, and left Mich. Centre mostly on that account. 65 I heard Fitch say to Wescott, at Filley's, that he would shoot a spy if he could find him out: think he said at the same time something -about spies making false statements against him for the purpose of implicating him with obstructions, &c.; spoke of theirswearing false in the Lester case. Bill Corwin and others said they would "shoot a spy as quick as they would a dog.' Heard Fitch say they had a majority with them. Seward here interrupted the examination, and said as the Court had intimated a desire to hear authorities as to the admissabilityof testimony for defence on crossrexamination, not brought out, byxamiamination in chief,(as proposed and overruled afew minutes since,) he had turned to a case or two in the books before him, and would read them at this time, and then leave:it for the present; he cited Cowen& Hill's notes on Phillips, p. 396,419; 2nd Russell on crimes, pp. 926 and 938; Roscoe',p. 129.; Van. Dyke said he did'notunderstand the question to be whether a witness was obliged to implicate or degrade himself-it was whether evidence might:be offered of a collateral nature, of his distinct acts,separate from the charges in the indictment; whether, on cross-examinaiaon, parties,couldenter upon a distinct matter of reference not touched,on in the examination"in chief.. Aft'er some conversation among the counsel as to the scope of the.question asked and overruled, the question was repeated, " Did you not on any other occasion get a pistol to shoot at the cars?'' Vail Dyke objected, and proceeded to argue the objection, and cited Russell on crime, 935; 1st Starkie 41; Cowen& Hill 726; Roscoe, 169: 14th -Peters, 7th May. Now, as to. evidence to impeach or contradict a witness, he cited ist Cowen and Hill, notes 745. Mr. Seward said-he insisted on putting the question, 1st, as proper cross-examination; 2d, as proper, ifanswcred in the affirmative, to impair the credit of witness. The hour of adjournment having arrived, the Court deferred its de-'cision and adjourned to the 14th at 9 A. M. ELEVENTH DAY —- ORNING SESSION. SATURDAY, June 14th. Frink said one of the prisoners, Wm. Gleason, being indisposed, wished to return to the Jail, and consented to have the trial go in his:absence. The court said the matter could be arranged by stipulation, which was accordingly'done. COURT —In looking over the books on the point discussed lass evening, touching the course of cross-examination, the court find the opinions it entertained at the time are not admissable; but may be sustained touching collateral testimony, if the questions asked be for the purpose of impairing the credibility of thewitness: citing Greenleaf, p. 435,;nd some other cases to show the rules. J. W. Wells' examination continued by Frink-Did you not, oa at Jackson, only four or five miles off, should be found sleeping with the Prices several times during the season. What was he there fort Why this close intimacy between them? Would you, 54 X I, or any honest man, with innocent purposes have acted thus?And what he told Mr. Chamberlain was true. The deadly plot existed. Plans of general destruction and indiscriminate slaughter were matured, and those who formed them were only waiting a favorable niornity to carry them into fearful effect. Now, gentlemen, contemplate this state of things? What an insult t the loyalty of the people of Michigan, that a band of ruthless villens in the centre of the State should thus boldly endanger the lives d.f our citizens who might pass over this road-of the strangers within..r borders-of the emigrants whom we have invited to come among s, unless the company would succumb to the demands, of this lawless and of ruffians. I doubt not what your course will be. Although'verv house from Lake Erie to Lake Michigan shall be burned —alibough corpses may be strewed along the whole line of that road, the law will be executed-the ministers of justice, unawed, will be faithfu ito their high duties and solemn obligations. But they threatened it, and the threat is over us still. A spy is to be shot-a lawyer who rosecutes the cause of public justice is to be hunted down as long as he lives. The agent who is chosen for his talent, and capacity, for his high standing among his fellow men, is to be defamed, vilified, pursued by thisband of villains. and for what? The testimony of the witnesses 1ells you. The history of this trial is but an appropriate sequel to the testimooiy in this case. The attacks upon counsel in the court room-ceaseess, groundless attacks, for merely discharging an imperative public duty is but an appropriate sequel to the state of facts revealed by the 4estimony. But I apprehend that they have mistaken their men, as hey mistook their man in Chamberlain. I apprehend that every man il the whole State out of this gang, will see this question as I have attempted to state it out before you-no one but who would peril his Al to see the laws faithfully executed. aMr Chamberlain has told you of the character of Mr. Lemmn's doc-,ine. It shows a complicity unfavorable to Lemm. How did he Inow that the company would suffer if'Corwin and Price were conweted? How did he become acquainted with plans to throw the cars.ff the track at the dry marsh and elsewhere. It is easily explained. We find him at Fitch's. We find him at Price's repeatedly —going ere, it is true, under the pretence of fishing, but what of that? In ursuing a course of justice probabilities are to be loehed at. In treating of suspicious persons, we are allowed to bring in all the circumbtaices having a bearing upon their actions. How happened it that he.lways staid at Price's? Did he ever staywith any one else? I asked the witness the question, and he did not rcollect that he had. No, gelilemren, Lemm was with the Prices so frequently for no other purpose but-of mischeif-plotting and convening with them in their grand purpose of destruction. Gentlemen of the jury, I will now proceed with some more of these.nteresting little incidents: (See Doudle's testimony) Here you see again what was to he done at the dry marsh.- Then,i&e speaks of another convqrsation he had with him at a different time. Mr. Rogers says: (See Rogers' testimony.) 55 Now, gentlemen,'the same season that Mr. Filley said this, Mr. Clark tells you that obstacles were placed between the hand-car and the locomotive. Although they took every precaution to prevent accidents, by going slow, and sending a hand car ahead of the train, yet, notwithstanding all this vigilance, they succeeded in placing obstructions upon the track after the hand car had passed. Mr. Fitch said he wanted it done, and Mr. Filley said it would be done, and, gentlemen, it was done. What is the natural- the inevitable conclusion then, as to the parties who did it. We can arrive at but one, and that points to these defendants, or some of them, as the guilty parties to these transactions. What induced Mr. Filley's mind to be continually bent upon these schemes? Why was he continually talking about what would happen to the cars? And what induced Mr. Fitch's "grand invention" the time spoken of to throw off the cars, and which he wished secured when used once, that it mightbe used again? Did any honest man ever continually revolve such schemes in his mind? Did you, gentlemen ever thinlk of the manner in which the cars might be thrown off the track, and the property of the company destroyed. No, gentlemen, there is something at the bottom of all this-some secret moving impulse governing the action of these men. And if such things are done-if the cars are thrown off in the manner that Fitch desired and Filley predicted, is there any doubt in your minds who threw them off- Filley saidit would be done. It was done. What is the inferenee-the legal implication. J ask you, gentlemen, what led Mr. Fitch to speak of placing a keg of powder under the track? What led his mind to think of it? Mr. Rogers tells you that Mr. Fitch explained how the keg of powder might be placed, so as to blow up the cars, which, had it been effected, might have killed hundreds. In concluding, he said he wanted it done. What could have been his object? Most plainly to ruin the road-blast its reputation-drive business from it and render it desolate. He had no general animosity against man-kind. He could not have wished to involve innocent passengers in the catastrophe, unless his heart was filled with passion from the lowest depths of hell. What, then, prompted these measures but hatred and hostility to the Railroad? And you may judge of the fixedness of the purpose of the man by the consequences he was ready to incur-the crimes he was willing to commit. It was not to commit murder against the public that he resorted to these measures. It was, I repeat, hatred of the road and its agents that prompted him. I will now read you the testimony of William Dobbs. (See Dobbs' testimony.) In regard to this Mr. Dobbs, I have not much to say. I do not know him-perhaps some of you do. But we must take his testimony as corroborated by coincident circumstances. On his first appearance on the stand, he struck me as a hard case. But he has told you a fair, probable story-a story that is strongly sustained by others. Do gentlemen tell us we ought not to call him? I reply, not so. If we wish to get at the daily acts of men-of Mr. Fitchwe must get it from such men as they daily associate with. Do they 56 tell us Dobbs is not to be believed. We reply that he was the constant boon companion of Mr. Fitch. And so of Wescott, and Caswell, and others whom they have sought to depreciate. Do they object to Mr. Dobbs. I reply that from under their own roof we got him-from their embrace we brought him here. His testimony, such as it is, we present to you. If you believe it, and it is a probable story, what a state of things it presents. His testimony establishes the facts in relation to planking over the track at Leoni. The proposition is distinctly made to him. I will read his testimony up — on this point. (See Dobbs' testimony.) And imagine to yourselves, gentlemen, the rapidly approaching train. There is seated the mother with the infant in her bosom - its own proper home; there is tottling age-the tender maiden dreaming of nothing but pleasure, and whose hopes are high-there are youth, and vigor, and manhood-there are talent and worth-thereis a father returning to family beloved-there'is a child hastening to the embrace of devoting parents-they are huried onward, right onward. These men, emerging from their secret hiding places, have nailed planks over the track at this fearful pass-a crash is heard, and groans, and shrieks break in upon the stillness of the night. This is the masic that sounds sweetly in the ears of the conspirators. But is it true? Would they do it? Would they be guilty of the indiscriminate slaughter of innocent men, women, and children?: Well may you pause, gentlemen, to ask these questions. But look at the dry marsh. Look at the obstructions that Spaulding run over. Look at Mr. Fitch handing pistols to these boys-and to his "great invention" —of placing powder under the track. Look at the attempt'to kill Wescott, and then is it possible that Dobbs tells the truth? I know that it startles you, and well it may. Such crimes, thusstrongly brought home to the defendants, are examples to startle any man. But, gentlemen, before this trial concludes, you will be compelled to believe worse things than these. I Will, in this connection, barely allude to the proposition to Dobbg to burn steamboats, as evidence of the general plans of destruction of the property of the Company which these men had matured. But this, like the burning of the depot, is' but a mitigated circumstance compared with other of their acts which involved the destruction of life as well as property. Again, I offer to the complexion of this whole case to sustain Dobbs. I insist that he stands uncontradicted. It was at Mr. Kirkendall's tavern, at Michigan Centre-that centre of pollution-over a whiskey bottle-a favorite resort-that these men attempted to enlist Dobbs in their schemes of vengeance. They were excited-they spoke freely, and all the circumstances render the testimony of Dobbs probable. e He was a man of the same character as the rest. What though he gambled with them-it matters not. He is just the man they would want for their purposes. Now we will see what Mr. Nichols has to say. I will read a portion of-his testimony, (See Nichols' testimony.) This man, you see, gentlemen, is no friend of ours. He is a respectable farmer, whose mind has become roused against the Company by the misrepresentations of these men, and who sympathized somewhat with them. Gentlemen-The testimony in relation to Mr. Fitch's estimate of the company's losses has become important as corroborating the teatimony of WestGott, and we hare several other witnesses swearing to the same effect. What caused Mr. Fitch to make this estimate? Why did he take so much-interest in the company's losses? Did it give him pleasure to know that losses had been sustained by the company? Yes, gentlemen, he took pleasure in it, he gloated over it, and carefully carries it in his mind. I will now introduce to you Mr. Burnett. (See testimony.) This, you will perceive, is equivocal testimony. I do not ask you to put a criminal construction upon it. I present it merely in connection with other circumstances, and ask that it may only have that weight in your minds to which it is entitled. Gentlemen-As tending to show the existence of some fatal secret-something which the defendants greatly feared to have revealed, I shall allude to the testimony of Dr. Hahn. On the day oftheir arrest and on'their journey to Detroit, he sat next Jack Freeland and some others in the cars, I will read what he says: (See Dr. Hahn's testimony.) Now, gentlemen, I quote this in this connection, as evidence that they had something that they did not wish exposed. You will observe that they said nothing about Phelps accusing them falsely. They talked about treason and traitors. Now when there is a traitor, there is something to betray. The term treason indicates confidence. What was there in this case. Henry Phelps' name was in the warrant as informer-they had seen it there. Had the charges upon which they were arrested been false, they would have said so. But, no-one says to the other, " if we could get hold of Hank Phelps we would make mince-meat of him." This is in perfect correspondence with the whole train of testimony in relation to their threats against traitors and railroad spies. What explanation will the counsel give of this? Will they put any construction upon it different from what I have done? I wish Dr. Hahn was as well known here as in the community where I reside. Then, gentlemen, there would not be a particle of doubt in relation to the truth of his testimony in the minds of any. And I-am assured that there is none in yours now. I allude to it here in connection with the burning of the depots in Detroit and Niles, to show that all these things were but parts of one grand whole, the details of a comprehensive scheme of destruction. Now, gentlemen, under the head pf threats, I wish to allude to what the witness English told you. He says that Fitchremarked in his hearing, that before another year expired, the company could not get an engineer to run the road. And being asked why, Fitch remarked that they had a plan by which the engineers would be driven off. Mark-English was not connected with the road; he is as 58 independent of the company as you are. What did he understand Fitch to mean? That there was a plot that would endanger the lives of the engineers, and thus drive them from the road. Now, gentlemen, this is a most important piece of evidence. Do counsel pretend that these are mere isolated facts, merely casual coincidences of time and place? I allude to the testimony of Fnglish as conclusive upon this point. Is there any doubt that English heard-it? that Fitch said it? that Burnett said it? I again allude, gentlemen, as sustaining English, to the general texture and circumstances of this case. Does he not give you the best reason for remembering it-that every time a casualty occurred, it brought the circumstance fresh to his mind-and casualties were quite frequent about that time. I shall now allude, gentlemen, as I pass along, to other testimony ~under the head of threats, as indicating the intention of these de-,fendants. I'refer to the testimony of Mr. Huntingdon relating to Jack Freeland. (See Huntingdon's testimony.) Isn't strange that the neighbors down there, when anything of this kind occurred; knew so well who did it? Does not also the letter of Mr. Goodwin indicate this? Here Mr. Huntingdon says to Corwin, "You fellows down there at the Centre have done enough." Did ~Corwin turn round and say-" Me, sir! you accuse me of crime!" as an honest and innocent man would have done? No-but he says, "it is quiet now, but we are fixing for them." When was it that it was quiet? Last fall. Well, were they fixing for them? Were they preparing some plot? Had you been in this city, and seen the flames issuing from the cupola of the fairest structure in Detroit, lighted' by a match applied by the hands of Washington Gay, you would have been convinced that they were indeed fixing for them, and that they would soon catch it! And this was Mr. Corwin,who is justly entitled to the bad eminence of being called the First Lieutenant ofthis band of conspirators. Gentlemen-I have now passed over most of the direct testimony which tends to fix upon these defendents the commission of the long catalogue of outrages that took place last season along the line of the Central Railroad. I will now proceed briefly to review this part of the evidence. Are you not satisfied that these things were done? Are you not satisfied that these men did them? Did they not plot them? Did they not talk them over? Did not Price and Corwin burn the wood pile? Did not Filley burn the lumber? Was not the Gazelle thrown off the track? Did not Fitch repair to the scene of the accident with the knife? Did not Filley propose to Brown to take up the track with the bars? Where not obstacles placed upon the road at various points? Where not the cars stoned and fired into? These facts are established by at least fifty witnesses who tell you of the meeting at Filleys. But do they tell the truth? Are they sustained by coincident circumstances? Gentlemen, have you any doubts upon these points? Can you have? I have none-not the least and no impartial man can have. And what is the defence? They have attempted to prove an alibi. It is weak, vain and futile. What though our witnesses might have been mistaken upon a single point, or in relation to a single individual. The mass of testimony which the nature of the case has compelled us to produce, is overwhelming upon the material and essential points we set out to establish. How is it met? Why Mr. Howard in his openingfor the defence, told you on his honor as a Counsellor of this Court, and with a most triumphant air, that he would show you a conspiracy on the part of the prosecution. That the.witness Phelps Wescott and others laid these plans to destroy property and endanger life and then come up here and attempt to fasten them on to the defendants. I do not doubt but that he at the time believed he could do it-could perform all he promised in his opening. If he had not, the announcement would have been bad policy, and still worse morality. He knew by whom he expected to prove these things. He knew that they relied upon Jack Adams and a certain Mr. Billings. What was the result? When Phelps was upon the stand, they asked him did you not tell Mr. Hawley, of Indiana, that you intended to throw the cars off the track? Did you not attempt to hire him to burn the Depot? Phelps looked cooly at Mr. Hawley who sat in the court room near him, and replied that he did not even know Hawley-tl at he had no recollection of ever having seen him. The same answer was returned to the questions, in relation to Dyer. We watched anxiously for the appearance of Jack Adams upon the stand, but he did not come. We wanted them to bring him into court, but they dare not do it. They had learned that there was a mine under Jack Adams, and that we held the torch to blow this miserable subterfuge of a defence sky high. And Mr. Cooper, by whom they were going to prove so much, where was he? We hunted him through Michigan and Upper Canada, and brought him here. They had an opportunity to ascertain what he knew of this fearful conspiracy on the part of the prosecution, but they dare not embrace it. And Jack Adams has been permitted to pursue his usual avocations in the service of the state, and I will not say what those avocations are-unmolested by the counsel for the defence. Here we have been for weeks, but they dare not call him; who was their main reliance on the opening of the case by Mr. Howard. And they sealed Cooper's lips and would not let him say a word. Ominous silence Why this change? Where the evidence of this conspiracy which they were so confident of establishing?-vanished-vanished into the air. And how have they proved that our witnesses, Phelps, Wescott, and -the others, put these obstructions upon the rail road track? Where is the evidence of this? Like Jack Adams, it has not been forthcoming. We have looked for it in vain. They have not produced it. I conclude here, gentlemen, this part of my argument. I insist that these defendants have been proved guilty of the charges preferred against them. It has been proved that these are the very men who committed that long series of crimes against law-against the peace of the people of Michigan, and against the interests of the 60 west, which form the ground work of this prosecution. It has been proven as clearly as human testimony can prove it. There is no avoiding this conclusion. The testimony of our witnesses has been sustained by every circumstance that has been developed during the progress of the trial. You will have noticed that I have but simply alluded to the testimony of Wescott. I contend that the first part-conspiracy-has been proved beyond a shadow of doubt. The evidence of Wescott, I shall urge, proves the existence of the conspiracy. I will read in relation to the extent of the conspiracy: [See in relation to agreement.] In brief, I would say that the understanding among these defendants, was, that they should, as physicians say, pursue their measures to the point of relief. You know what that is. When a physician has a desperate case, he resorts to a desperate remedy,,and pursues it to a point of relief. That is until relief comes, or the patient dies. Such appears to have been the measures resorted to by these men. Unless the Railroad came to their terms, they were to be pursued to the point of relief. I will not say what those terms were; but we insist that the understanding-the bond between these men, was that the Railroad should come to their terms, or they would continue indefinitely to pursue their measures of general destruction. There are different modes, gentlemen, in which agreements may be entered into. When a man goes to your store and procures an article, the presumption is, that he agreed to pay for it. The act is prima facia evidence, which only can be met by positive proof that he received the article as a gift. The law presumes it, and the contract is construed according to his actions. The criminal and civil law are alike upon this point. A man is presumed to consent to a crime, if it is committed in his presence. And the presumption becomes much stronger when he afterwards speaks approvingly of it and justifies it. Such acts are made the grounds of evidence against him. This is a general principle, and we propose to apply it to the conduct of these defendants-to their acts-their threats-and the coincident facts and attendant circumstances. We contend that the evidence shows a close, an intimate, and inevitable connection between their actions and threats and the outrages and crimes which have been committed, and to punish which, this prosecution was commenced. What object, gentlemen, could these men have had in developing their plans of destruction, if they did not mean to carry them out? And then they had the means-all the means that the ingenuity of thirty or forty men could invent. There were guns fired into the cars-ties removed-obstructions laid upon the track-wood burned-murder plotted and contrived-embracing, to be sure, gentlemen. a beautiful category of crimes, running up from the lowest to the highest known to our laws. Their means were the most fiendish human ingenuity could invent. They made them public-they proclaimed them far and wide. From these means, so well adapted to accomplish the outrages which were actually committed, we have 61 a right to infer, even in the absence of any corroborating testimony, that all this was in pursuance of a general understanding. If the cars had been only stoned, we should infer that they only mneant to stone them. If they had only been fired into, that they meant only to fi e into them. If they had only run them off the track, that this was all they had covenanted to do. And so through the whole series. But when we find the acts exactly corresponding with the threats all the way through, and with the means provided, we cannot avoid the conclusion that one line of action was pursued throughout. I might, but it is not my intention to carry this illustration farther at this time. But we have seen that every possible mode of destruction that could be invented by the ingenuity of these thirty or forty men, were resorted to. We see that the facts transpired exactly as they threatened, and as they predicted. What is the inference? What is the presumption upon this state of facts? I stab a man to the heartkill him. The law justly infers that I meant to kill him. I used the means. This is just the case with these defendants. They used exactly the means necessary to produce the results which were pro: duced. I contend that this is established beyond doubt or controversy. It is established that they were prepared to use fire-one of the most destructive of all.elements. They did use fire-they burned a culvert, and those who went to extinguish the fire could not get a pail in all Michigan Centre. Fitch told them sneeringly that they would have to go elsewhere to procure pails to save the property of the railroad. It is shown that combustible matter-logs, &c., was placed in the culvert, to ensure its destruction. It is proved too, that they proposed to use gunpowder to blow up the track, and they spoke boastingly of what they were going to do, and approvingly of what had been done. And now I proceed further. I insist that they proposed to go further. They proposed to burn up the structures along the line of the railroad, including the Depot in Detroit. A depot was attempted to be burned at Jackson; read the testimonyof four or five witnesses upon this point. Does what they tell you leave any doubt in your minds. And I will ask, does this startle you? Does it startle you at this stage of the proceedings? Does it startle you that such things could be in a civilized community. Mr. Van Arman here, remarked that he felt himself getting hoarse, and as it was half-past eleven o'clock he asked as a favor of the:court, that it would now adjourn. He would endeavor to conclude his remarks in the afternoon. Mr. Van Dyke hoped the Court would adjourn without any intimation on the part of Mr. Van Arman, when he would conclude; he hoped he would take his own time, as the subject was far from being,exhausted. The Court then adjourned to two o'clock, P. M. FRIDAY AFTERNOON. Mr. Van Arman resumed. The arguments I have addressed to you thus far, has been direct" 62 ed to the purpose of convincing you that the defendats were the persons who committed the outrages enumerated; and further that they acted in concert-that there was understanding and concert amongst them-that all their acts indicated a joint secret purpose of hostility to the Central R. R. All their acts were directed to the accomplishment of this purpose. I have stated to you that they threatened to burn the depots belonging to the Company at different points, and stated that they had actually employed fire as a means of destruction; and it now becomes my duty to pursue this line of argument, to show that they did attempt to employ fire in the destruction of the dopots at different points. The enormity of this charge may at first startle you. In human society nothing so excites the execration of all men alike as the exhibition of wanton malignity and revenge. No crime is so odious, few so dangerous as arson. It is prompted by pure malice, no other passion seems to enter into the motive as a general thing. The man who robs you may be guided by motives of a mixed nature. Something good, something human may enter into his motive; but the incendiary is influenced by motives drawn from the very lowest and darkest depths of our nature. But I would ask you if the motive which prompted the outrages I have enumerated, upon the public, was not fully adequate to induce the commission of the crimes which we charge these defendants with having attempted, or even the very crime charged upon the record in this case. Do these Grimes require or indicate any additional or different motive from that which induced the destruction of the R. R. The wilful destruction of property is not mitigated by the addition of murder. If these men would destroy property, and in so doing would jeopardise life, not of a few but of a multitude, would they require any additional inducement to commit this crime. Can you conceive. anything more atrocious than the spirit manifested by their conduct. But without dwelling upon the motive, I shall insist that such destruction was attempted by these same men, and it was an act better caculated than any other to effect their ends. Such attempts, if proved, will weigh strongly in your minds in favor of the testimony upon the subject of the burning the particular depot in question. I do not insist that because they destroyed property they burnt the depot; but if we show them possessed of a malignant motive and prove that the burning of depots-was a part of the general design, we prove much; for then it is only a particular embraced within a general. Their general plan or design is destruction until they can bring the company to terms. Wholesale destruction-is not that their own admission. From such a design we derive a strong argument to support the evidence which charges them with burning the particular depot in question. Their general motive is injury to the reputation and interests of the railroad. And what would more seriously affect those interests, and the reputation of the Company, than the destruction of the depots. 63 There was stored the property of hundreds of people from every part of the Union. From the Green Mountains, from New York, and from the fertile plains of the west;-here was stored the property, the chattels and effects of the emigrants —the poor man's means of livelihood, the rich man's hoarded wealth. Business in every part of the Union would be affected-confidence would belostthe security of property would be shaken. A more effectual mode of injury and annoyance could not be devised by them. Now examine the evidence? can they be shown to have omitted any opportunity of destroying the property of the Company. If:they destroy property in one way would they not in another.. When a rational man proposes a given object, no matter what the object may be, his likeliest course of conduct will be to employ thereadiest means, and if this means was certain and ready to effect the purpose.of. these men, would they not employ it? It may not be conclusive, but if a man threatens to destroy your property, even though it may be only in an unguarded moment, and your building is burnt, you have right to suspect and arrest that man, and charge him with the crime, on the principle that we have a right to takemen at their word. Authorities'will be read on this point. Courts have instructed Juries that where buildings have been burnt or murder committed,. and threats have been made, it required but slight evidenceto convict the party making such threats of their execution. This rule is based upon the plain,obvious and.rational grounds that a man's words furnish some, if not conclusive evidence of his purposes and intentions. This rule obtains even in case of mere threats, though perhaps hastily uttered. How much stronger, gentlemen,. does the probability of the execution of these threats become, when we find them reiterated through the space of two years on numerous. and divers occasions. Plans and schemes deliberately formed for their execution; the sincerity and dangereus reality of these threats and plans, proved and established beyond the probability of a doubt, by the preparation of tools and instruments for their execution. Nay, by the actual execution and accomplishment of these plans, by the perpetration of crimes of a much deeper dye than the one now charged. The law on this point will be read to you, and you will hear the. instructions of the Court. I shall call your attention to the testimony of Wescott, and shall now speak of his credibility. An attack upon him was expected, because it was in accordance with the base conduct and general plans of these defendants, as often avowed by them, and eminently necessary to their defence. The attack has been made in every possible mode. The counsel heaped upon him every epithet that hatred could supply or language express. Attempts were made to taint his character, but no attempt was made at general impeachment. After. all this storm of abuse and calumny which has beat unceasingly and with pitiless violence on his head for three months, how does he stand in your judgment? The grounds of belief or disblief of human tes — 64 timony, we can scarcely explain. The manner, bearing and general deportment of the witness upon the stand furnish a general reason why we believe or disbelieve him. So it must be with your judgment of Wescott. But some considerations are capable of being stated. If a witness comes upon the stand and relates his story, if it be long and embraces a multitude of particulars, and if upon a cross examination the witness repeats the same story, if his testimony remains unshaken it is much, very much; for I venture to assert that no man lives who can come upon the stand and relate a falsehood twelve hours in length, no matter how ingenuous he may be, but under cross examination he will be detected. A skillful counsel will never fail to detect the falsehood in a shorter time than was required to relate it. Human ingenuity cannot sustain the trial of a close, searching cross examination. How did Wescott stand this ordeal. Men thoroughly practiced in the first courts of law in the Union for years, men who have been trained in all the artifices and the subtilities of the law, unsurpassed for skill and ingenuity, have for many hours exercised upon aim their utmost skill. Did they shake him? Not at all. I refer you to his testimony to see if they have succeeded in drawing him into even apparent contradiction. I will leave you to judge of the manner in which he acquitted himself himself as it must be fresh in your recollection. Two facts only sworn to. by him, they attempt to contradict. He said he went to Fitch's window; they say he did not. Fitch did not sleep therehe went through a picket fence, they said he could not. You have seen the fence, whether he could or could not you must judge-have no doubt that he got through, perhaps not at that precise point, but he might not remember the exact place. What was the material fact? that he heard a conversation at Fitch's window. The time-the darkness of the night being taken into consideration. I ask you, might he not have been innocently mistaken? Might it not be true that he went six or eight rods further up from the house, than he from recollection stated to you. That he could have got through at a different point, a little further west is evident. The fence itself bears evidence that some one had there gone through; it is plain that he might easily have done so, and if you should be convinced that he did not go through at that point, would that convict him of perjury? They say Fitch did not sleep below at that time; they have brought up witnesses to prove it. Do you believe that Mr. Fitch slept in that bed-room from the 6th of July until after the State Fair. What testimony have they brought first, the hired girl? Do you recollect the confused manner in which she swore-but it appeared she had lived there but nine weeks, and that would not cover the time. She was a servant to Fitch-had been in the charge and keeping of Mrs. Fitch. Every influence had been brought to bear upon her. Take the testimony of Mr. Burr, who came here under as favorable circumstances as any other witnesses, he was no enemy to Fitch and a stranger to the prosecution. He swears positively and distinctly that he was there on the 29th day of August, early in 65 the morning and he found Fitch sleeping in the bed room belowfurther, that two or three times just previously he remembers that he had seen him coming from that bed room in the morning with his clothes in his hand-Fitch was in bed and came out partly dressed, with his clothes in his hand. Mrs. Fitch contradicts him, and I have not a word to say as to her testimony. Dr. Backus says he was the family physician till within the last three years, and he never knew them to lodge any wvhereelse except in the bed room below. We proposed to give Fitch's admission, that he lodged there and heard the spies under his window and to fix it to the time Wescott was there. In consequence of Fitch's death his admission was overruled, but I am convinced that you will regard the testimony of Mi.. Burr with confidence. Next they say he could not have got under the house and they brought a little boy to testify that he could not crawl under-that the hole was too small. Wells tells you that he helped to make an aperture last fall, and it was then as large as it is now. I ask you for what purpose it was enlarged since? Was there any reason for it? not the slightest I If they wished to get under the house it was the easiest thing to take up a board to get downn-but Mr. Clark tells you that immediately after the time Wescott mentions, his attention was called to the aperture by Wescott, he examined the hole and it was precisely the same then that it is now. I need not speak to you of the credibility of Darius Clark, for all know him, and he says there appears no trace or appearance to show that it has been enlarged. This is clearly true, either Mr. Clark has stated falsely or that poor little boy has been trained to commit perjury, for the hole is now so large that the largest man in this court room might go in, turn round, and come out again with ease. Whether the statements of Wescott on these two points, sustained as he is on both of them by other credible witnesses, has been successfully contradicted, I shall leave you to judge, without further comment at present. The efforts of counsel to disgrace and discredit this and some other witnesses have been unwearied and persevering They have tracked them through the whole course of their lives, seizing with avidity and appropriating to their purpose, with malignant ingenuity, every act which could support an accusation, or point a sarcasm. Their faults and follies have been rehearsed, their very misfortunes paraded before you, and not a suspicion or accusation ever conceived by human malignity or uttered by the tongue of calumny against them, but has been revived, collected, and laid before you. Indifferent to the virtues or merits of these unfortunate witnesses, they treasure their faults and vices, and from them alone erect a standard by which they ask you to judge of their character. So the scavenger, as he creeps with bended back and earthward eye along your city thoroughfares, shuns habitually every pleasant spot; your spacious, cleanly avenues, your swept and shaded walks, with senses perverted by his foul calling, he visits only the shunned and loathsome 5* 66 places, the foul receptacles of useless and rejected matter. The narrow and filthy alley, reeking and noisome, disgusting to every sense, attracts him, and with nice and eager scrutiny, he traces its slimy labyrinths, exploring every half-filled ditch, sounding each stagnant pool, seeking (nly what others shun, selecting and treasuring only what is foul and odious. And would any man have you judge of the police of your city and the cleanliness of the inhabitants, by the foul accumulations thus collected. As with the habitations of men, so is it with their lives. Every man has his vices and his virtues, and his conduct and course of life is never of even and consistent tenor, and he who plays the scavenger can find in the path of any man, many a choice morsel for malignity to gloat over, will find enough-indeed, too much-to gratify the depraved and perverted feeling which can alone induce the search. But what, after all, have they been able to discover, with all their malignant diligence and'zeal, in the course and current of Mr. WAescot's life, which tends to his disgrace and discredit? What crime, what disgraceful act (for these are the only acts they would allowto be proved) has been shown? His history of his life since his boyhood has been spread out before you, his life to all practical purposes has been passed in your State and within a few hours ride ofyour city; his reputation for truth and veracity was open to attack; he had his last residence in Jackson County, where certainly, if it were bad, they would have found little difficulty in establishing the fact. Yet they have not seen fit to attack it. He was the chosen friend and intimate associate of Mr. Fitch, who introduces him on all occasions to his friends, attempts. to procure him to locate next to him, and up to the time when We.scott became suspected of being a traitor tothese railroad secrets, neither Fitch nor any of these defendants ever uttered anything but praises of him. But what, according to the evidence, has been the course of his life? Have his occupation and associations been reputable or disreputable? IHe was engaged in the mercantile business and failed; many an honest man has done it-it is an incident that occurs to a great portion of the mercantile world at one period or other of their lives, not only in the west, but throughout the world-it cannot efect his credibility. But they say he was indicted, at Mackinaw. Was he guilty? The indictment was discontinued, there was no instigatioh. It was pending for a sufficient length of time to bring it to trial, and it was not (lone. The presumption must bethat the man was innocent notwithstanding the indictment, until proved guilty, this would be the rule if he were on trial. When a man is unfortunate it takes but a small measure of proof to procure an indictment against him; unheard as he was, this was easy, and the fact can show nothing against him. Is there anything in the history of his life to effect his credibility? He has been trusted by men of business, he has been the confidential agent of men of sagacity aud prudence. Property has been placed in his hands, and their interests confided to him. He has managed for others, he has been in the mnrcantile business for himself. Have they shown him guilty of misconduct? What room is there to suppose that he would basely perjure himself? They may say he was a spy, so was Dixon, so were other men. The merits of this and every other act is measured by its utility. And no matter whether it is the Irishman, shovelling in the ditch, the merchant behind the counter, or the statesman in the Hall of Legislation; their acts and conduct must be judged by the same standard, their'utility necessity-are they promotive of the public welfare. If they acted as spies from necessity, from regard to human life, then their services were meritorious, and I claim it as, a merit that they so acted. No inducement was offered for perjury or falsehood, he was paid by the month, not according to his success. The very imputation,of any other arrangement would tend to disgrace the character of the man who employed him. That the agent would make any arrangement to induce this man to perjure himself, is an insinuation which will fall perfectly harmless. Where is their motive-? That they would wish to protect the property of the railroad, to detect and prevent depredations on it, is certainly, reasonable. But they could have no motive to punish innocent men. They said to the persons they employed go and make the best ex6rtions you can. A specified price was agreed upon or no price at all. But the compensation in no-way depended upon the success of the persons so employed. Wescott is a man of intelligence, would he basely perjure himself without. a motive? But while there is nothing to impeach his character and little to discredit his story, there is much to support and corroborate it. Dixon tells you he was there at the time he states he was, and tells of their change of manner towards him after they discovered he was a spy. All who testify on this subject, say that he was at Filley's frequently, was intimate with Fitch, that the intimacy continued as long as he describes that Fitch had him by the arm, sought his society, was intimate with him as long as he describes. Again, his life was threatened; and he tells you that he heard threats against his life, uttered by the defendants, in Filley's barroom; and it is confirmed by Sherman. Westcott subsequently tells you that he heard they regretted they had riot put their threats into execution. Tlhe very language they used, could be recognized as coming from the lips of these very men. We answered promptly he could not have invented it. He related natural circumstances that go to corroborate his story. The general tenor and effect of his testimony is confirmed and corroborated by all thb other witnesses, as to the plans of defendants. Mr. Westcott's testimony was here read as to the stating a converation between Fitley and Corwin at Filley's, about burning the depot at Jackson. How readily and naturally the idea, of being sued for the timber, would give rise to the remark that they would want more timber before long. How natural and probable the remark, that the shavings would render it easy to burn; but he does not stand alone. Mr. Caleb Lowd's testimony shows that they had a design to burn these buildings, and that Corwin was acquainted with the fact. Caleb Laud is a man of veracity, living in Jackson, no friend of ours, an independent witness. What does he say? Mr. Caleb Laud's testimony was read, showing that Corwin stated to him, in March, 1851, that the depot at Jackson would be burned before long. Now turn to the testimony of Mr. Lake, who swears that at this very time they had hired Mount and Jackson to burn it. Mr. McMichal, a man who is unimpeached, tells you that Corwin tried'tohire him to burn it, and said that Fitch and others would pay him. P. Moran says that he (McMichal) and Corwin were together at that time, at his grocery. Mr. McMichael had kept the Astor House a Jackson; and a man who would retail liquor at the Astor House, was doubtless thought by Corwin, a fit man to burn buildings. He was, however, mistaken. Morgan Westcott tells you that he was acquainted with MeMichael, and not with Corwin. He says that he heard the conversation, and was afraid that Mr. McMichgel would be induced to do it Hle conversed with Mihl, McMihl a McMichel told him that he did not intend it. I can find nothing to discredit the testimony of these two men; and [ insist that every thing supports their testimony —nothing disproves it. What does it prove-that in the fall of 1850, a design to burn the depot was entertained by Corwin and Filley, at least. Corwin says that Fitch and others would pay for it, and this tends to implicate them. It goes far to support the testimony of Mr. U. D. Wescott, when he swears that Fitch told him of a design to burn several depots about the same time: that they would run the cars off' at four or five different points, duing the time of the State Fair. He tells you the number that Fitch thought it would be necessary to murder, before he could bring the Co. to terms; and at the same time he tells him that if the vigilance of the guards and the precaution taken should prevent this, he would burn the depots. Wescott communicated the startling fact to the Co., and they promptly acted upon the suggestion; and it is highly probable that the safety of the public and of the property of the Co. was preserved by their immediate action. One hundred men were sent on to the line of the road, and these men were compelled to abandon their designs. We attempted to prove the identity of men who were overheard by Mr. Dyer, of Jackson, arranging a similar plan, in a back alley, one night in Jackson. At that time, from the darkness of the night, it was found impossible to identify the persons, and the testimony was necessarily excluded. I ask you whether this testimony of Mr. Wescott, being true, the purpose and design of burning was not as general and as sweeping as their other purpose of destruction and revenge? 69 While under this head, it may be proper to call your attention to the tst.mony of Phelps and Lake, as to the burning of the d pot at Niles. Did these defendants, or any of them, attempt to pocure Phelps and Lake to burn the depot at Niles? Did they know of the match delivered to them at Filley's, and to what purpose that match was tobe applied? No matter who madethe matches or which of the depots were to be burnt-did they know what was the object? did these men know what was intended, or did Phelps deceive them? Let us look at the evidence.' John Faulkner's testimony read, showing the delivery of amatch to, Phelps and Lake, at Michigan Centre on the evening of the 11th of April and the conversation about the job at Niles, &c.' One of the counsel admitted that Faulkiner told the truth, that there was a manner about him that carried conviction that he was a man of veracity. Mr. Seward would wish the counsel to refresh his memory. Mr. Van Arman.-I think that Mr. Seward said so, at any rate, Mr. Howard did. If the counsel wish to withdraw the admission I have no objection- his veracity rests upon a much surer foundation than the admission of the counsel. The counsel said that he had been the dupe of Phelps, but there are four men less liable to be duped than John Faulkner, and when he knows anything few can state it more understandingly, as the counsel found to their discomfiture when they utterly failed to dupe him themselves. You will believe him honest I am certain, and if so, you must believe that what he said is literally and accurately true. He was certain of what he heard —he was positive as to what he saw. When a person hears a conversation without any particular motive for recollecting it, he may pay so little attention to it as not to understand it, or if he understands he may forget it, and except recalled by other circumstances, it may never recur again to his memory. But when John Faulkner went from Marshall to Michigan Centre and put up at the tavern of Filley with the express and special design and purpose of noting each particular that occurred there, and the next day came and stated to me what he had seen and heard. He could not well be mistaken, and he could not see and hear as much as he wished, but what he did see cannot be disputed. John Faulkner's testimony read about what occurred the night of the 11th of April, at Filley's. I would enquire of you if Mr. Corwin and others knew what use was to be made of that box? It is proved that Phelps and Lake took the box, went to Dexter and to Niles upon Saturday. Upon Monday following Darius Clark and myself were coming to Detroit and saw Mr. Ammi Filley at the Depot in Jackson evidently waiting for Phelps. Spaulding tells you that the moment Phelps got from the cars, Filley came up. Phelps says he told him he had not made more than nine times. This expression was overheard by myself. Filley tells him to hurry to the Centre for the boys were waiting for him. What impression does it make upon your minds? These de 70 fendants say they went to Filley's on the night of 11th to roll nine pins. Why, then, if that was the purposedid they not roll nine pins? They utterly forgot the object of their meeting-nothing was ever said about rolling? other interests occupied them, when they arrived there. Take Faulkner's evidence and you will perceive that they had some secret design-some plot that was to be kept amongst them. He was a stranger, and pretended to be half asleep,. some one said he was a stupid Irishman,-still they talked privately, they had conversations they did not want any one to hear. What was this matter of privacy? It was something that was to be done, at some place other than where they then were. Phelps was to go somewhere, a job was to be done by him, the performance of which would cause mirth and exultation amongst these men; it was to form an epoch in their lives. Phelps was to do it —it was to be done before he cameback. Their words were, " when he gets back we'll have a time." What could give these demons more pleasure —what would furnish more cause for rejoicing than such a job as he was about to do? And the ground of probability is that these men were accustomed in this place to talk upon this subject a hundred times;'they have consulted there upon similar schemes. It was to be at Niles, Phelps was paid partly in advance, the rest was to be paid when he came back. Does it not fully confirm the testimony of Phelps. What did he mean by saying to Filley that he did not make more than nine times? Why were fifteen or twenty men waiting iinpatiently for his return? Why was his success to be celebrated by mirth and revelry. But the counsel have offered a compromise, they suggested that it was a meeting for the purpose of arranging a scheme for passing counterfeit money. Could that box, the size it was, have been believed to contain false coin. Corwin had it in his hands, he dropped it and caught it when near the floor. If filled with coin, Corwin could not lift it, if half filled he scarcely could,. and could not have caught it up when he dropped it. Again it would have gingled so as to have been heard all over the house. Neither could that explain the conversation that passed that night.' If these men had been, counterfeiters, and were arranging to pass their spurious coin, they would have gone into and examined the money. What would be the main question that would arise? Clearly its quality.' Lake brought the box there, it is said that day, they would have been eager to test its quality. They would have examined, counted and discussed its quality, and judged of the probability of passing it. Was that done t Not a man entered the room-it was not examined. Again, if Phelps and Lake were the men who were appointed to pass it, why should they be paid in advance? why, they were the men who should have paid the others, they had the funds they should have paid each his proportion. There is no reason to believe that these men were on an expedition to pass counterfeit money-no proof, and the hypothesis is absurd. Various other considerations occur to my mind to disprove 71 it, but 1 will not trouble you with them now, it will be time enough when the counsel have settled upon what theory they will adopt. I ask you if it is not conclusive that the persons in the room knew what was in the box., Who manufactured it, is another question, which I shall not shrink from meeting at a proper time. Now I say that upon the authority of this evidence, and that of Phelps and Lake on this point, I have proved that these defendants, or some of them, did talk of and intend burning the depots and property of the Central Railroad Company, that they attempted it at Jackson and Niles at least. Suppose Phelps and Lake made the match and left it there, though this is utterly denied, if they knew and consented, it is as much an attempt as if they made it themselves. It is a matter at present of no.importance who made the match, the only question I ask at present is, did they know and consent to it. Mr. Hudson for the defence admits the fact; Mr. Hay admits the fact that he saw the box delivered, but pretends he did not know what it meant; and you will remember that the attempt to burn the depot at Niles was subsequent to the bnrning the depot at Detroit. I next insist that it is proved that the depot in Detroit was burned by an incendiary. You have heard the testimony of a multitude of witnessess as to the origin of the fire. Some have stated that it originated in the cupola, others that it did not. You have heard the testimony of thirty or forty witnesses, and you will, I doubt not, come to the conclusion that the relation of Capt. Turner is correct. He was laying along'side the wharf, about two or three o'clock he was aroused from his sleep by a boat grazing against the side of his ship. His attention was directed to a light in the cupola, small at first but clear, so that he thought it was a lamp; it turned out to be a fire. I believe that this is the earliest knowledge of the fire that we have. Where did the fire commence? Giving equal credit to all the evidence, most unquestionably in the cupola. Is there any machinery there? Yes the head of the Elevators, and they had been working them until half-past eleven o'clock the same night, while at the very earliest the fire broke out at two o'clock. Some of you are acquainted with machinery-its velocity-its arrangement —and are better able to judge of its liability to take fire by friction than I am, perhaps than the witnesses. You have had the testimony of numerous machinists, men skilled in their profession, and not a man pretended that there was any liability to a fire from friction. The testimony is that the machinery could not take fire by this means, and the persons in the employ of the railroad tell you that it never was found to heat, never got warm to any extent. There was no light that evening in the cupola at all. One witness stated that he blew out the last lamp at half-past eleven o'clock that night.. There was no candle carried thropgh the building. The candles. 72 were fixed in tin sconces, and lamps alone allowed to be carried through the building. Did it burnlike a fire occasioned by accident? You will see in an accidental fire a dense volume of smoke, then flame involved in smoke. This burnt with a clear light, like a lamp, and then burst forth in a column of bright flame. Brut it may be said that you have not proved certainly that it did not occur by accident. There never was a case of burning where the proof was certain that it did not take place by accident. The crime of arson is peculiar in this respect, there is always a bare possibility that it may be accidental. But I ask you, was this fire not as unlikely to have occurred by accident as if the building had been uninhabited. There was niothing there but the head of the elevators in a hopper, and to suppose that it could fire the cupola is an utter absurdity. My next proposition is that Gay burnt it. Speaking of Phelps as a man who is involved to a deep extent in this trial, I have to say that one of two things is true: he is either the most execrable villain that ever has appeared in modern times, either the vilest and the most abandoned wretch that Providence has ever permitted to pollute the earth, he is all and more than all counsel have declared him, or he is the most deeply wronged man upon the face of the earth. If he has deceived us there is no penalty too heavy for his crime: he has imposed upon the court, the community and his employers. Death would be a mitigated penalty for such an act, if guilty no human law could find an adequate punishment for his offense, if for any sinister motive whatever he has plotted the ruin of thirty or forty individuals. If he has woven his snares of falsehood and perjury around them, the plot has no parallel in history since the days of T'itus Oates and the Popish plot in England. If he has done this he is the most miraculous man of whom history has published any account. Possessed of ingenuity and skill the most consumnate and unparalleled. If this is deception, he has not only deceived me, (that many a,man might do), but much wiser men than myself. The agent of the Central Railroad, Mr. Brooks, who is reputed to be possessedof at least ordinary sagacity, and the four or five able counsel who stand beside me are equally deceived. For none of us could have thought it consistent with our duty or our interests even to have commenced these proceedings upon doubtful testimony, or even that which we conceived to be doubtful. You must see that we all have fully believed it, or we had not dared to commence these proceedings. That Mr. Brooks believed it, that we all believe it, you must readily perceive. For it would be too absurd for belief to suppose that we would prosecute these men upon a mere fabrication. His story, they say, is mere falsehood and deception. Such an unparalelled villain would be a worthy and desirable auxiliary to the devil'himself! He stands before you, gentlemen, as a witness load 73 ed with every epithet of abuse showered upon his head, looked down frowned at, scowled at, howled at, stamped on, thrust down; bellowed at-yet still he lives and stands before you, and it is for you to examine his testimony. I shall endeavor to drag him from the mire into which he has keen thrust, and see if any proportions or features of humanity can be discovered in him. In all my experience I have never seen a man so treated. If he had been as guilty as he has been represented, then is the penalty well nigh paid by what he has been subject to in this prosecution. Death by slow torture, by crucifixion, by fire, the sharpest torments, would be pleasure compared with what he has suffered. For a man'to set here and have publicly showered upon his head every curse and epithet, and charged with every species of infamy, without the power to reply-is a doom from which humanity shrinks. It is wonderful that the man is alive. It seemed to me that he must cease to exist. If the counsel who opened for the defence had had the look of a Gorgen or the eye of the Basilisk, he would have been turned into stone or perished before his gaZe-that look had every element of hell and malice concentrated in it. If he had the power he would have annihilated him. That he thought he. was the wretch he painted him, it will do us no harm to admit; that he thought he should prove it, I have no doubt. But has he done it? They have pursued him with an industry that is most praiseworthy. They have endeavored to impeach him by showing contrary statements of his own elsewhere, they sought to lead or drive him into contradictions. Next to impeach his general character for truth, and they followed it up with theutmost persevereance. They said he had been to State Prison, that we must admit; but you must recollect he went from Jackson Co., and that it has been testified by every witness that there was a great question in the minds of the community whether he was guilty or not. But admit that he ought to have gone, that he did go to State Prison, and was pardoned out, as the fact is, when the question of the impeachment of this witness arose, we threw the door wide open, we did not confine the counsel to such questions as the law allows, had we done so, they could not have sworn ten witnesses. I have the utmost confidence in his credibility, and had no objection that every single act of his life should be fully and fairly brought before you, and it would gratify me if every thought and impulse of his heart, from childhood to the present hour, could be brought and spread out before you. If his tale be worthless and false, I have no desire to induce you to believe it, and to test his credibility we allowed them to follow him through every, part of his life, trace him from childhood to parade before you the misfortunes with which Providence has afflicted him-nnot alone what was true, but what was false; through every labarynth of life they hunted him. There is a class of men to whom this human hunt is pastime, unfortunately a large class, to whom this is a nost exciting game. There is a kind of ferocity in human nature, a sort of blood-thirstiness, which prevails in mankind, there are a class of men who are too conscious 74 of weakness to attack the vigorous and strong; but no sooner is a man down than they will fall upon, and tear him, a sort of carrion birds and human vultures-too cowardly to prey upon the living, but they will descend into the grave, drag out the carcass from its mouldering cerements and feed upon its festering remains. Let a man be unfortunate, let him be down, and this class of vermin hasten to their natural repast. They scent their prey with the samecertainty that the beast of prey does, these human hounds have been after this man in full cry for the last three months. I have seen them here with their gloating countenances as they fastened them upon him with the malignity of fiends, and when he quivered in every fibre from the torture inflicted by their serpent tongues, you have seen the smile of gratification upon their lips. That is the spirit in which these men have hunted him. Still he is alive and beset around by enemies as he has been. Everything that could tend to degrade, dishearten and discourage him showered upon his head, yet he is alive and he has hopes, fears, human feelings like the rest of us, he can still' suffer and enjoy. Human ties and sympathies still surround him, he has a wife, children, they have shared likewise in his bitterness of spirit. Nor is this trial to be the end of his misfortunes. In your presence he has been forewarned that he has awakened the vengance of those who will never leave his track until he leaves the earth. So be it. They may hunt him again to the prison, from which he has just emerged, they may murder him, as every thing in this case shows they would gladlyido. But after all, the facts which he has related and your verdict upon then'will not perish with him. Mr. Lake is another witness, and they tried to attack him. He went to prison; by the rule of law it is not imprisonment but the crime that disgraces the man, and that is the rule of reason. Mr. Lake was a young man. A friend of his went tojail and was likely to be punished, he caused to be handed to him a file or instrument by which to escape from jail, no more or less. I am not going to discuss its effect upon your mind whether this indicates a degree of depravity, disqualifying him for telling the truth: From that time his conduct has been regular. The question is, does the handing of that file disqualify him for the rest of his life for telling the truth. The testimony of these men embrace a multitude of particulars, extending over four or five months of time, and I ask you if human ingenuity could devise such a story, so perfect that it could not be shaklen by the severest cross examination. I have made the same remark with regard to Wescott; the most searching and protruded cross examination I think I ever witnessed failed to shake their testimony. I have this general remark to make, if you believe their testimony and give them credit, it is an end of this case.- It would not have become necessary if their story received perfect credence to have investigated other facts as thoroughly as we have. I could then have taken up their testimony and asked your verdict, without the long list of witnesses who have given evidence as to the depredations on the rail road. It may be asked, why, if I so relied uponitheir credibility, we did not rest upon their evidence alone? I will tell you, with all frankness, they had both been in States Prison; and although I had never doubted their credibility, and found them faithful and true, strictly true, yet I was aware that you had not the same means of judging their credibility that I possessed, and I thought it necessary to fortify the statement of those witnesses, by showing the strong probability of their truthfulness, by coroborating circumstances. This was the reason, and the only reeason,, that induced the plaintiffs to enter into the history of the long catalogue of crime that we have been so long investigating, to establish the probability of the truth of the statements of Phelps and Lake. SATURDAY MORNING, Sept. 6. Gentlemen of the Jury: I had proceeded.in my discussion of this case to that portion of the evidence that preceded the burning of the depot in this city. The proposition I was endeavoring to prove when the court adjourned, was, that George Washington Gay was the person who burned it. In the course which I have adopted in this argument, I now beg your attention solely to this question, to confine your minds to this and this alone. I do not at present in luire whether he was hired, or if so, who hired him; I inquire what is the evidence to establish the fact that he burnt it, and I ask you to exclude every other inquiry from your minds, that you should direct your attention to the single question-whether Gay burnt it or not? The argument that I have used, the disposition of the defendants and the probability of their being instrumental, has nothing to do at present, as far as this question is concerned. The question is now, was Gay the person who committed the crime with his own hands? We have been warned by counsel that the fact of Gay's instrumentality in burning the depot rests upon the evidence ofP. and Lake. A glance at the evidence will enable you to see that there is much more reliable evidence than the un supported statements of any one man to establish the fact. That it was burned by one incendiary, I have heretofore argued; what is the proof'against Gay? We have in the commencement that kind of evidence which, both in law and reason, is the most conclusive against any one accused of such a crime, short of testimony of an actual eye-witness of the fact. What have we then to implicate him? Some doubtful expression of his-something that may be construed one way or the other-a conversation partly heard, perhaps partly remembered and the rest forgotten? It is said that admissions are the worst kind of evidence; This must be taken with a qualification. The reason why admissions are to be received with caution, is: witnesses maybe mistaken in the meaning of the men who made them. The recollection of the witness may be imperfect; he may have heard a part, not enough to obtain the full meaning'of the person; a subsequent portion may have qualified the preceding, may have shown that it related to a 76 difierent subject; but I submit and this court will instruct you that, when an admission is clearly and distinctly proved, when it was deliberately made, not only is it admissible, but in point of fact it is most conclusive kind of evidence, as it excludes every objection against this kind of evidence generally, and particularly where admissions are made against a man's own character and conduct; still more, if it seems to have been made under circumstances which lead you to know that the man was expressing the exact truth of the matter. This is the kind of evidence I wish to submit; it is not the testimony of Phelps and Lake, but of a different man against whom, for the ten years he has resided in the State, there has never been a single word uttered imputing to him an act of dishonor-I mean, Darius Clark —a man of most blameless life, a man whose kind and obliging disposition and urbane manner has conciliated the good will of all who know him —a man who has not an enemy upon the face of the earth, except made in the course of this trial, in the firm and faithful discharge of a most holy duty —a man who stands as fair as any man in the limits of your State, and a man who will never be attacked except for sinister purposes. I have watched his ( ourse in prosperity and adversity, I have, throughout the vicissitudes of a life in Michigan, known him well and intimately, and say fearlessly that a more high-minded, honorable man has never taken up a residence in Michigan. Well and wisely did the agents of the railroad select, when they employed him to protect their best and dearest interests-when they enlisted him in an enterprise both important to them and the public-and well has he performed that duty. He has fully justified the confidence reposed in him and sustained the high opinion which the public previously entertained. Many of you have known him, and it will take a legion of such men as those called by the defendants, to cast the slightest shade upon. his fair name.- His own fellow-citizens have elected him to posts of trust and honor, and such a post he holds now, which is a better commentary than anything I can utter in his behalf, if anything were requird. If there is a man who deserves the public gratitude, by sleepless nights, personal risks and hazards, he is the man, and it will be worse and more than vain and useless for counsel here, upon mere assertion or any other foundation they can erect, to assail him. Upon the word of this gentleman, I allege that Gay admitted that he was the author of the conflagration, not doubtfully, not in terms that might be construed one way or the other, but repeatedly, deliberately and distinctly, he admitted it. I need not read his testimony, it is unnecessary, you remember it-he told Mr. Clark upon two different and seperate occasions that he burnt it. Now do you believe it; was he the man likely to do it? Could Gay from all you knew of his character be hired to do such an act? The counsel upon the other side will not deny that he lived in this city-that he was engaged in a course of vice and infamy that should render him the most likely person, that he had ingenuity and the skill to do it, all the evidence strongly shows. Take the scenes that occurred at his house, upon the testimony of Clark. I will not press my own testimony which I gave merely to relieve the delicacy of my friend Mr. Clark, knowing the same facts, having enlisted in the same cause, I would not shrink from his side, I had a feeling that it would hardly be fair to state what I knewwhether that feeling was right or wrong I will leave the honorable minded men to say whether the facts I gained a knowledge of, without intending to swear to them-facts which I dared not trust to others, to ascertain, whether swearing to facts thus obtained for the purpose of relieving the delicacy of Mr. Clark was right or wrong, I have no hesitation in submitting to any right minded man to decide. Upon your judgement of the propriety of my conduct in this instance, I am entirely willing to stake whatever reputation I may possess. For this 1 have been attacked in a set speech of half an hour's length in your hearing, by the Hon. Senator from New York I heard it in silence-I shall doubtless hear it again; and solikewise an honorable man, one of your number has been conpelled to listen in silence to an attack upon his reputation, touching him in the nicest point of his honor. He has been plainly told that he had perjured himself by a wanton violation of his duty as a juror, that he had violated the most sacred duty that'man owes to society, for if there is a place that should be -sacred it is the tribunal of justice. Yes, and the juror has been told that he had been guilty of a crime compared to which larceny and robbery would be an honor to a man. I do not overstate the words the counsel used, he said he could prove it-he said that the juror had listened out of court to a discussion upon the merits of the case, and I appeal to that Juror if every word he stated on the subject was not utterly false. I will not permit myself to believe that a man raised so high in rank and sta tion, and in the confidence of' his countrymen, would state what he knew or believed to be false. I am bound out of the respect I feel for the judgment and intelli gence of the freemen of mny native state, whose confidence that gentleman seems to have enjoyed, to believe that he would not be guilty of intentional injustice, much less falsehood. Yet the statement which that gentleman has deliberately made here, is to the full extent of all he has said and insinuated most utterly false. I can well believe that the counsel has received such information from the men'who surround him. The counsel has said he could prove it. The juror to whom I allude would be able to appreciate the evidence by which it should be proved. Still the counsel i1 doubtless right, he can prove it, and if circumstances should render it advisable he will prove it. It would be rashness after the experience we have had of the skill and resources of these defendants, to doubt for a moment that they could prove anything they wish. They can impeach the honor of a juror with the same facility with which (according to their own boast) they could impeach the veracity of the best man in Jackson County. Can it be doubted that the man who could. buy the power of 78 perjury, transform a harmless buggy into a blacksmith's shop and the horse that drew it into a walking chandelier, ean as readily and by the same power transform an honest man into a villain. I wish the gentleman to understand me, I don't for a moment question that he can prove all he has alleged against that juror, I merely inform him that'it is utterly false-not a whit the less likely to be proved on that account; however it is admitted, conceded, they can prove a horse to be a blacksmith's shop, and every hair a candle, and what perjury can achieve they can perform. But the gentleman says he makes no personal issues. There are two kinds of men with whom it is useless to make personal issues, the one whose character is so bad that it cannot be made worse, the other so good that it cannot be made better, or injured. If the fulsome adulation of partizan editors, and the interested flattery of partizan friends have so inflated the vanity of the opposite counsel that he fancies himself above the just censure of the meanest citizen, he is mistaken; no rank or position in this country can screen any man from the just censure due to wrong and injustice, right even handed justice to all even the meanest-equal rights, fair play, are the jewels dearest to the heart of every true minded man. I fear not to submit myself to your scrutiny, if right I am sustained by your opinion and can well dispense with that gentleman's approbation; if wrong I am willing to submit to your censure, it lays not in the power of him or any man materially to affect the fortunes of another. From the beggar that sits on your steps to crave charity, up to the height of the senator who has so pompously addressed you, by our conduct we stand or fal.' ou may know this juror and for myself my life has been spent within six hours ride of your city, and I shall be most happy if the counsel who has traduced me could speak to them who know me best upon the subject. He might learn the history of my life, a few years spent in "giving cheap counsel to some farmers in moderate circumstances," as he expressed it, that may be all that he can learn. I stand not upon such a lofty eminence as that from which he has seenfit to attack me; he has the advantage and he has the disposition to use it, but whether the impregnable intrenchments with which his rnime and reputation are surrounded is equal to the courage he has displayed in an attackupon an humble juror, and a still more humble individual like myself you must be the best judge. What object the gentleman proposed to accomplish by this unjust and wanton attack on one of your numer I am a little at a loss to discover. That it could have been intended to frighten or intimidate him into an acquittal of these defendants by the threat of grave accusations in case he should pursue any other course must not be supposed. Such an artifice would ill become the dignity and candor we always hope to observe in men of elevated station. But if this were the motive, as I cannot for a moment believe, I suspect, nay, I feel assured it was ill advised. Without any knowledge of that juror except what I gather from his personal appearance and the place of his nativity, I venture to predict that whatever the opposite 79 counsel or any other man may effect by argument or persuasion with him vwhenever he or they shall attempt coercion or intimidation their success ill be moderate. Gentlemen, it is barely possible some of you may know this jury man. If so you will perhaps from your knowledge of his past life be able to judge of the justice of this accusation and of the value of that evidence by which the counsel here propose to convict him of flagrant misconduct. But upon the truth of the statement of Mr. Clark much rests. If,Clark tells the truth, to say nothing of myself, then Gay did fully, fairly, and distinctly admit that he burnt the depot. He did not explain particularly the manner in which he did it, and that is not the present question. He did it in some way or other; no matter how. We must now consider the testimony of Mr. Hawley. The counsel have assumed one thing at one time, and another at another time. At one time they would show that the depot was fired by Phelps. What was the force of Hawley's evidence, but to prove that Phelps and Lake burnt the depot? else why should they seek to show that he had threatened to do so. Why should they seek to charge Phelps and Lake with concocting a scheme, while in prison, for burning property after they escaped, and charging it upon others for the purpose of making their fortunes, unless it was to raise the inference that they burned the depot? But they offered the proof and we are bound to consider, it. They imported Hawley and Dyer from the State of Indiana, one of whom stole away from the jurisdiction of this court, without a cross-examination, when he found we had four men to head him, and the other had explained his evidence before you. These men were imported at the expense of the people ofMichigan. Thlis is the kind of op ression that has been exercised in this case, that has been so much complained of, The law has provided for the expenses of the scoundrels who were imported to swear false for this defence. But they evidently sought to prove that Phelps and Lake burnt the d.pot. Subsequently they started another theory, and it immediately in this connection, that Mr Howard had the charity to admit that Clark spoke the truth. I do not ask him to stand to it; it would be inconsistent, for there is not a proposition that they have adhere to. First th "y said Phelps burnt the depot; then denied it. They attempted to prove there was a conspiracy between Phelps and Lake, and for two weeks their favorite Jack Adams was here for that purpose, but they never dared to call him. Now they will say they never intended to prove such a thing. MR. FRINK-Jack Adams is not on trial. MAl. VAN ARSAN We prove that Gay admitted that he burnt it, and by that kind of evidence that cannot be construed in any other ensle than the way; he stated it. He explained with some particularity to Phelps and Lake how he did it, but to Mr. Clark he ex plained neither the manner nor the instrument; but he distinctly swears to you that Gay said he was hired to do it, hired by persons 80 living near Michigan Centre and Leoni; he used the names ofFitch and Filley, as being the friends there who had hired him to do it. This stands upon the testimony of Mr. Clark. How can this be explained? By the theory that Phelps and Lake and Gay were in a plot? Have they proved it? It is a distinct matter of defence for them to establish. We cannot 1e called on to prove that it was not so. This is a logical impossibility. They allege something of their own, new and distinct matter —that Gay, Phelps, and Lake were in a plot, that they had conspired together to destroy the property of the railroad. You have their word for it, and that is all you have. We prove distinctly what is necessary for our purpose. They say in reply that there was a conspiracy for the purpose of convicting these men of a crime of which they were not guilty. I know of no principle of law that will allow you to take the word of counsel as proof of any proposition, for which you have nothing but his word. No other explanation can be given of the conduct of Gay. It cannot be reconciled with any theory that human ingenuity can invent, except the theory that what he stated was simply true; and they have not attempted to offer any proof to the contrary. We prove that Gay admitted he burnt the building, and how he did it? He related'it-boasted of it-and they have oflered no earthly proof in contradiciion or explanation of it. Their defence to this stands before you a bare, bald assertion of counsel, with no proof to sustain it. It will be time enough when they support it by proof, to discuss the merits of that proof. I need not explain to you how and why Phelps became so readily acquainted with Gay. Having been to Indiana, and learnt the names of his associates there, and being in the secrets of a man with whom Gay was intimate? pretending tobe laboring in the same cause, he easily and naturally gained his confidence. -Confidence is as commonly reposed between.rogues as between honest men; indeed, a strong, firm, and permanent bond often exists among this class of men. They readily give confidence to those who come properly introduced with the insignia of villainy upon them, and this is the reason why Phelps so readily gained the confidence of Gay. HIe had been in'State Prison, and this was a passport to the confidence of Gay. It is strange that we have not other testimony-another importation from Indiana; they might have proved this conspiracy, and if I could go beyond this record I could show you that they did attempt to have it, and from the same infamous source. I am endeavoring to establish the fact that Gay burnt the depot, and if you believe the testimony of Clark, does it not establish the fact. I do not alude to the instrument (the match) found upon his premises-the defendants say that Phelps put it there. It would not detract from the force of Gay's admission if Phelps did so. Suppose that you do believe that Phelps and Lake constructed the match and put it there, still Gay has repeatedly admitted that he burnt the building. If Mr. Phelps,for the purpose of securing his conviction,made these 81 machines, would it detract from the force of Gay's admission? The circumstances all show that he made this admission in good faith, knowing it to be true. But from all the evidence can the counsel point out a single motive that would induce Phelps and Lake to manufacture and deposit that match there. But have we no other evidence? At the time he said he burnt the depot he also said he had the tools in his house to do it again-he did not show them to us there-did not say that they were. To obtain an opportunity for us to see them, Phelps requested a sight of them, upon the pretence that he wanted to obtain one for a similar purpose. He tells you where Gay carried the match, and it was in the same place where we afterwards saw it. It is not in proof that the instruments produced was the one that we saw that night, Phelps does not swear that it is, Clark thinks it is not. I believe that it is not the same, unless it is much altered; it is not the match that was shown to us that night. Now is this no evidence; does it not tend strongly to coroborate Phelps's statements? He had previously told us that at Gay's house there were instruments for the purpose of burning up the depots of the company. We were extremely anxious that no man should deceive us —we did not dare to send any other person there. Phelps had gained his confidence and said that he would procure us the evidence of our own eyes if we would adopt the course of conduct he thought fit to direct; that we could go as associates of his. We went there doubtingly, and found his representations true. I ask you if it is possible that when Gay tells us in his house, that he has the tools, when he exhibits the match, that we could longer doubt, that we should suspect Phelps was deceiving us. We found it in Gay's house in a bed room, a place where it could not have remained an hour without exposure. Phelps and Lake went with us, but carried nothing with them; they had come with us to Detroit; except the night before when we went together, they had not been there for a week. Neither time did they carry anything to the house with them. We knew therefore that they had not carried the match to Gay's. And again what was the language of Gay? that he had the "tools." What tools? Was this to deceive us? If so, the defendants might have given some explanation, at least in theory of his motive. Gay says he had the tools again to burn the depot. We had to proceed cautiously, we dared make no inquiries that would excite suspicion, or show curiosity as to the manner in which he burnt the building. We could not urge him to exhibit the tools; he might be a little unwilling to show them to us. We availed ourselves of the opportunity to gain what knowledge we could, in the best way we could. Take the testimony not only of Phelps and Lake, but that of Clark, and see whether counsel for defendants have furnished any explanation. I say the building was burned by an incendiary-that this man admitted that he had done it and that he had the tools to do it again. There is no answer to this-they have offered no proof that either contradicts or explains this evidence. 6* 82 Now, I say these men hired him to do it, some or all. I will not. now enumerate but some or all hired him to do it. First did they know Gay at the time? Fitch at all events did-is it no proof that Gay could pronounce their names?-that Mount was for years in partnership with Gay in deeds of villany-that Mount was now associated with Fitch and the defendants. It was mostt natural and probable that by the means of Mount they should become acquainted. Gay mentions the names of Mount, Fitch and Filley-how should he know their names, their history, their occupations, and they not know him. But take the testimony of Phelps as to an occurrence in this city at the time when Fitch was trying to persuade Phelps to burn the depot at Niles; an allusion to Gay was made and it was testified to in substance by another witness. Phelps tells you of a singular interview between himself and Fitch after he returned from Royal Oak. He did not know that a person on the earth could confirm his statements, and he tells you that when he (Phelps) came back, Fitch met him near Johnson's, and affected a strangeness of manner towards him. Said to him, " Ae you here yet?" Then asked him about his family, and in the end of the interview told him " you will find the fish round the corner there." Phelps tells you that Fitch had agreed to show Gay to him the next occasion; that he could tell him where he could find him, and that he did understand the fish to mean Gay. He went round the corner and found Gay. Mr. Sheeley could not know what was meant-but he heard the remarks and he describes the man and the interview. You can have no doubt that it wasthe same occasion. Now take this in connexion with Phelp's previous statements, and can you doubt that the relation he gives is correct? Here is a material point, fully coroborated. But we have further evidence aside from that of Phelps and Lake, arising from an incident which occurred after the arrest of theprisonersj sworn to by Dr. Hahn. Fitch wanted to see the warrant, he read it so intently that for a moment his mind became abstracted from external objects. He knew his guilt and contemplated his danger; he well knew the consequences, which threatened him when he came to that part of the warrant which charges him with conspiracy with Gay, to burn thedepot in Detroit, he stopped, his countenance fell, and after a pause, he said to me, I believe that old Gay has turned State's evidence. In the complaint of Phelps there recited, what was there that; should have led him to think of Gay's turning State's evidence, except he had been guilty. Is Mr. Hahn mistaken as he heard the remark? He is positive, for he was told to note it down at the time —he is not mistaken about the name. And I ask you if there could be any mistake about the remark. They may say that he said that Phelps had turned State's evidence. Phelps was no older than himself, and old Phelps has never been, 83 uttered by mortal man, while old Gay was the name by which Gaywas always designated. Take the remark and consider its meaning, it came from a: sudden conviction, without reflection. It come fiom the source of all truth, the honest impulse of nature; because it is in fits of abstraction-when the cunning is forgotten, from impulsive expressions that we are always sure to gather the truth. Why did he think that Gay had turned State's evidence? Yes, the crimes he had committed rushed through his mind, he saw in threatning perspective a fearful storm about to burst upon his head, and he thought he knew from whom the danger proceeded. His mind dwelt upon all the occurrences of the past, and he could get no clue to explain his present arrest except that his accomplice had betrayed him. What could Gay betray if he did not know him? He likewise said he was a stranger to Phelps. Now, when a man who is accused of crime, tells a deliberate falsehood in relation to the accusation, he furnishes a proof of his guilt. The innocent man has a plain, straight-forward path to pursue: Innocence is truthful, frank and honest. If Fitch was innocent how came he to deny his knowledge of Phelps? He took his cue from a rule, which practiced felons generally observe, and which is to deny everything. But a good principle may be carried too far. It would have been much more prudent to admit that he knew Phelps. Nothing is worse than a denial when it can be found to be false. For ten or eleven years past he had been acquainted with Phelps; he knew him as early as 1840; was a witness upon his trial when he went to State Prison. He met him at the State Fair, and invited him to his house; in the cars at Detroit he had him by the hand most lovingly; at Dexter they sat in the cars for miles talking together; at the lobby in the House of Representatives, he moved his seat and sat with him an hour; at the bar-room at Filleys he scarcely spokeexcept to Phelps-and yet he did not know him. Take other evidence, of'Dr. Hahan, as to a conversation between? young Filley and the Price boys: "If we could get hold of that Hank Phelps," says one of them, "we would make mince meat of him; he has betrayed us; he was visiting here all winter, pretending friendship, now he has turned round forfeiting the confidence that rogues place in one another, and told the whole thing, if we could get him. in our hands we would make mince meat of him." The plain English, in spite of sophistry, is, Mr. Phelps had some knowledge of facts, which he had obtained by visiting and pretending friendship, and has communicated that knowledge. It implies that what he has betrayed is true: he had there learned facts and betrayed them, it can bear no other construction. Mr. Seward would beg leave to correct the counsel: the words were, He has been round all winter, and has now come out and exposed all he knew —the whole matter. Mr. Van Arman-If I am mistaken in the language, I am happy to be corrected. I will read the printed account as I have it. It reads thus: "He has turned traitor and exposed the whole matter." 84 The force and effect of these admissions can never be explained away. These men were under arrest and evidently talking about he subject of their arrest, the charge upon which they were arres ted,.with Mr. Fitch, their leader, their minds dwelling deeply and naturally upon that very charge when they made these remarks. -What wdhole matter? Nothing less than that stated in the complaint, -had Phelps learned and exposed. They only accused Phelps of -.~treachery, and treachery implies confidence. There was no refer-ence to any other subject or matter than-the warrants. What stronger.,roof could be obtained than such a remark as this? Suppose Mr. Phelps had gone to arrest them, that he had been requested to read;he warrant, and having looked at it they say, you are a traitor! you.have betrayed us! you have told the whole matter! Would there ve any doubt about the meaning of this language? Now I ask you to note well this testimony, to give it its fair and legitimate weight.mn rendering your verdict upon the case. Did these defendants hire Gay to burn the building? The defend-:nt say that Phelps is a liar —that you will believe nothing he has,said or reported, Take the admission of Gay that he had burnt it.take his familia:: enumeration of the names of these defendants, their luisory and residences; consider that Mount was a natural means,of'.ommunication between them and Gay. Suppose again, that these persons desired to procure the depot in Detroit to be burned, whom would they be more likely to employ,an Gay. They knew him to be qualified for just such a purpose: Xi neav him of old, at least one of their number certainly did, he had Jeen his partner for years in deeds of villany: they corresponded::together, who would be more likely to be selected than Gay. We have every reason to suppose that they became acquainted.^mith Gay through Mount. But cast Phelps' testimony away for the present. We find that Gay said he burnt it, and that he was hired to do it by these defendants; and one of their number says that he believes old Gay has turned State's evidence. Others say that Phelps:has exposed the whole matter, uttering the direst threats at the s5ame time. How much, I ask, does this lack of convicting them. -.But take the testimony of Phelps and Lake, and read it in con-,exion with the history of the crimes and depredations known to harave been committed by these abandoned men. Look at their pur-,poses of revenge and their malignant feelings shown by their own adrmissions. Take the testimony of Mr. Clark and John Faulkner.and say whether you do not believe the testimony of Phelps and Lake. If you dothey must be convicted; there is no room for argument, and if you lay aside their testimony they cannot, it seems to me, be acquitted. OQf the whole statements of Phelps and Lake, there is but the smallest portion that is not fully corroborated. Phelps tells you from day to day what the defendants have admit-ted to them. And what does he report? Repeated boasts and admissions of what they had done. Their acts of agression we have,imoved by other witnesses. How could they learn what Westcott 85 and others had communicated, they did not know Westcott till long afterwards. Mr./ Clark never named Westcott to them, they reported these facts in ignorance of what had been discovered. The various wit — nesses scattered over the line, unacquainted with each other, re peat: the same acts of agression, and the same admissions; not the srame testimony in every particular, but the same general identity of thesources of information is clearly shown. But how far are they corroborated. The admission of Gay, the exhibition of the matches stands fully established. Another thing - what was the bond of union between Fitch and Phelps? They hal matters of privacy, they stepped aside from the crowd. What wa the topic of their discourse? Fitch tells Doan that he has a friend coming on the cars; Doars, sees him-soon after/talking with a stranger, and Westcott tells Tyvu who he is, i; was Phelps. No other friend that he expected - shown to have arrived that night. Mr. Fitch, it is said by the counsel, was a man of high standingin society, a gentleman of refined tastes and habits in his mode of living. What was the bond of union between these two men? Is there a single transaction of legitimate business that ever, as far as the testimony goes, passed between them? Phelps a miserable culprit, a man that Fitch would not stop to take by the hand, if he is the man they represent him to be. Hasthis circumstance no weight upon your minds? But I have now gone through with all my propositions, my strergtl? will not enable me to rehearse all the testimony of the witnesses, it will be reserved for the counsel who will follow me. And now ha — ing gone through this case for the prosecution, it remains for me to say a few words about the defense. In the first place let us examine the theory that has been presented' to you. Let us examine it carefully. What is it? It is difficult to gather what it is. It has taken as many forms and hues as the rainbow, it is chameleon like in its shades. One moment they say that Phelps perpetrated this crime, the next that they do not accuse him of it. Again that on the night of theeleventh of April, Corwin and others went to Filley's to play at ninepins. The next moment that they met to devise a plan to bass begus money. Lastly they tell you that it is nobody's business what. they went for, because every man has a right to go to a tavern, and' they will stand to nothing. They have found that human ingenuity can never explain what happened on that night, except upon the theory weihave presented. They did not meet to play nine pins, for they did not play; they did not meet to arrange a plan for passing counterfeit money, forcircumstances all disprove this design and no such plan was discussed; and it will be the duty ot the counsel for the defence to explaini what they were there for. Their defense may be divided into twor portions. First they attack the credibility of Phelps, whom theI choose to consider the only witness. 86 They tell us in substance that Phelps and Lake constructed these matches, and.carried them to Filley's. They promised to bring dead, cold, inanimate matter, that could not lie-that would speak in tones of thunder to confound the wretchs and protect the innocent. And they did bring here cold dead matter, and it was cold enough -almost rotten-and it was here ostentatiously paraded, but whether its thunder tones had the effect to confound these witnesses or themselves, you must judge. A block of white wood they did bring here, as they promised they would; and could any body else have performed this feat-it'could have been hewed from any cattle guard between here and Michigan Centre. And I wish them much joy of their discovery, they shall be for ever welcome to all that they can make of it; and if its tones are interpreted aright then this harmless block will proclaim the guilt of these defendants more unequivocally than any other fact in this case. I ask you if this same block of wood has not convin-ted you fully of the' truth of Westcott's statement, that they boasted of their readiness to commit perjury,-that they could swear a wagon into a blacksmith's shop, and a horse into a chandelier. They are performing what they promised. It was perfectly natural to the -minds of guilty men to conceive the plan of that block. I beg leave to call your attention back to the history of this case. Is it true or false that these men were bound together for schemes of wickedness and crime, and had agreed to sustain themselves by perjury? Had the source of public justice in Jackson County been corrupted by these men? Is it true that they threatened the life of any man who would tell the truth against them, and that this mutual bond of infamy was made strong by their confidence in the power of corruption possessed by this association? If so, then I have the solemnn admonition of the opposing counsel, that there is danger. And is it true? What is the proof? It came from the testimony of inanumerable witnesses, that they invariably promised and agreed to'stand by each other and swear each other clear. What says Brown — that they would stand by each other. What says Sherman-that they could impeach any man in the State. Westcott says the same thing; and Woliver and Wells give similar testimony. And if these men were associated together for the purposes of crime, what is more probable —it is natural, inevitable; the bond of their union would be feeble without this clause. It was a necessary article in their treaty. Such a compact must be written in lies, falsehood and-perjury; nothing less would protect them; and protection they fully intended. Now, when they were prosecuted, what could'be expected? Perjury, as black as the foul source from which it ~emanated: we expected it, and we have not been disappointed. Look at the history of this trial. Will any one of the counsel deny it? Let them bring back before you the infamous Hawley, who come here and confessed his own falsehood. Let them fetch back "the fugitive from justice, who came here and testified; and when he,found we had witnesses to convict him of perjury, fled, and his tes Stimony was stricken out in your sight. What next? A man with the appearance of candor and honesty tells you that he saw two certain cattle guards at Reynold's crossing, entire, with the exception of one side; and yet five persons have told you that it was all false. He said he had never visited the spot but twice; he spoke with certainty. His attention, he says, wvs called to what he saw. He says that the first time he saw two cattle guards lying separately: he noticed them, because it was.the first thing of the kind that he had seen. He tells you his errand there. He swears he is not mistaken. And yet, every word he uttered was a lie. A year ago last spring, in the month of May, there was a cattle guard put down upon the east side of the crossing: there was another cattle guard put down two years ago last June. Both these guards were in use and down. Nor was there any with the sides split in two, lying on the bank. What else? He tells you that three weeks only before he testified, he was passing with another man, and he saw the cattle guard lying there, with the exception of the other piece. His attention was called to the fact, by the other person calling his attention to it, and saying that he did not know what had become of it: it had probably been burned up.for wood. He tells you this with apparent sincerity: it was but three weeks ago. And yet a multitude of witnesses have told you that it was not so; that there never was a cattle guard with the sides split in two there at any time. One was put down two years ago last spring: one a year ago last spring. And that is the beginning and end of all the cattle guards that were there. Yet, he says he was there-he knows the spot-it was there, not elsewhere. The fact is, as I have well ascertained, that he heard a report that there had been a broken cattle guard there and came here and sworeto it. That there has been perjury committed, wicked and corrupt, the counsel for the defense will be under the disagreeable necessity of admitting. The theory of the defense is, that Phelps and Lake manufactured these matches; and they proposed to bring in the very piece of wood from which they were made. Now, take this theory. They say that Phelps, when he left Sylvan, left concealed in the manger of an old stable, the very block from which the matches were made; that he made the matches; that he and Lake carried one part of the way to Michigan Centre; that Lake carried it the rest of the way on foot; and that they had got the very block out of which it was made; nay, the very augers with which he bored them. Examine this theory. Whatever may be said of the wickedness and falsehood of Phelps, one thing must be, and has been conceded, and it will weigh much. Whether a man is shrewd, or foolish, or wicked, his conduct will but reflect his character. If Phelps is wicked, he is not a fool. There is a wide difference between-him and a weak or foolish man. If he has undertaken a scheme of villainy of this nature, he does not at least lack shrewdness and sagacity. And it will be impossible, if the counsel make 88 him out a devil for ingenuity, to make him out at the same time an idiot. And yet, to reconcile their thecry to common sense, he must be represented in both these characters. Here is the difficulty: they must represent him at one time as a most sagacious man, a perfect miracle of cunning and villainy, and then deprive him of all these qualifications, and leave him a little better than a driveling idiot. For, in order to make me believe that he left the block of wood where he did, while contriving a scheme to convict these men, they must deprive him not only of honesty, but. of every particle of common sense. Wherefore would he leave it there for concealment! If the idea of concealment entered his mind, would he not have burnt it up? — Did he want the block for any further purpose? Did he want to go back there to make more matches? Would not a man of common sense have concealed it by burning it to ashes? But they say there was no fire in the house the last night he was there; and if there, was, he might be seen. Were not the woods near, and could he not have burnt it in the night? And it was certainly the simplest andthe easiest course he could have pursued, thus to have removed every trace of its existence. But Mr. Phelps does more than that to destroy the last chance of concealment. He not only surrenders to a stranger the possession of the stable and premises with this damning proof of his guilt concealed, but lie goes to a neighbor (Mr. Reynolds) and tells him, "you may take the hay in the stable-I do not want it." He says in effect, take the hay, and you will discover that which will send me to State's Prison, which will ruin me: take away the hay, and you will find the block. The man who would thus have acted, must be an idiot; nothing short. A child two years of age would have known better. There is not a man possessing a particle of sense so stupid; and yet at the samie time it is necessary to make Phelps a very cunning, shrewd man. Well, take another part of this'theory. After Phelps and Lake had manufactured this match, it became necessary to get it deposited in Filley's bar-room, and they wished to carry it there in such a manner that it would not be discovered. This was done, remember, to manufacture evidence against thirty innocent men. And they well knew that every movement they made, would be closely watched and thoroughly investigated. Mr. Clark, the faithful Railroad agent, had his eyes upon them. Others were carefully watching them. They were preparing the evidence to convict these men or themselves.They anticipated all the events of this trial, and they would certainly desire to' carry that box to Michigan Centre with the utmost secrecy. In fact the counsel admitted substantially that they wished to carry it secretly. Now, if you wished to carry this box secretly from Sylvan to Michigan Centre, how would you do it? The night was made for rest and repose: it is a blessed institution. But it is used by dishonest: men for a different purpose; for acts of secrecy and crime. It is the 89 chosen period for rogues. When would they have carried this block? Undoubtedly in the night. A few nights before, they did drive to Filley's, in a buggy. If they had then taken the box, given it to Filley, and told him to keep it secret, he would have kept it; if an accomplice, of course he would say nothing. But if circumstances had compelled them to take it in the day time, how would they then have, taken it? Every motive would induce them to secrecy. They were going to take it in a buggy: and what would have been easier, than to conceal that small box in a buffalo robe; a bag, an old barrel; a dozen different ways would have ensured secrecy. If they had taken it in the day time, is it not certain that they would have done so? But how do they say they did carry it-that they tied it up in a red handkerchief, put it in the hind end of the buggy-stopped at every house. One of them takes it in his arms and goes across a field and then follows the public highway for miles,-that is their theory, that is what these witnesses say who come from Leoni to swear on this subject, and this is the beginning and the end of this most villainous story —a story that would meet its denial from an idiot. It seems to me that the counsel have mistaken their men when they tell you this-they should have recollected that you had seen some years of human life, and that you have some knowledge of the motives that influence human action. They seem to have taken it for granted, that what was once sworn to, ou would not for a moment question, however repugnant to common sense. But they are not to blame. I expected that they would prove by at least a dozen men, that they saw Phelps and Lake manufacture the matches and put the matches in the box, and I am surprised that they have not done it. Here'is the theory. Phelps and Lake, with every motive to the most profound secrecy-with a punishment as dreadful as death itself impending over their heads if they are detected —place this evidence of their guilt in the hind end of the buggy, in open view-stop at every house, and finally to make discovery certain, carry it across an open field, in plain view for miles, in the public street and then knowing as they must, that numbers of persons saw it come here and on their oathes deny it. What next? meanwhile Lake gets to Filleys, he sets this box on the floor in the bar room, waits there four hours until Filley and another man arrives. He says how do you do Filley? how do you do Lake? Lake says Filley, will you take care of this box? Filley puts it in a little room, and then they go afishing, and it is a fish story, a most remarkable fish story, and that is the theory which the ingenuity of these villains has been occupied in inventing for the last three or four months. If this evidence is false, and that it is so, is as clear as the sun at noon day, then it is hard to say what portion of this testimony is worthy of credit? Mr. Peeler, from Mackinaw, is the first witness; he is a man of some pretentious, and he gives you the history of his life-that he 90 lhas been a soldier —he has served his country of course and he has:seen some peculiar service. He has witnessed a good many unusual sights and scenes, among others the rogue's march, and the inteTior of guard rooms, and jails are familiar to him, and he is about as good a soldier as citizen. Having served his country on fields of carnage, he was taken with a sudden panic in time of profound peace, and deserted his colors, he was brought back and honour. ably discharged by court martial, and his last military manouvre was a masterly retreat from our northern frontiers executed to the tune of the rogue's march. He has been peculiary unfortunate; a very honest man doubtless-but he seems never to have been duly appreciated. He seems to have been suspected in this city, so strongly suspected that the officers of the law were unusually attentive to him. He has explored the interior of your jail. There are some other peculiarities in his history-he has tasted the sweets of conjugal life and thinking that he could not have too much of a good thing he takes two or three at a time. The rites and ceremonies usually observed on assuming this interesting relation, are matter of indifference to him, he is after the essentials, and whether priest or soldier officiate at the altar, is immaterial. A soldier's wedding suits his military taste and profession best. So oblivious is his memory of unimportant circumstances, that he not only fails utterly to recall the time, place and circumstances of his numerous marriages, but he has most ungratefully forgotten the very names of his numerous wives, including that of the present Mrs. Peeler. The names and number of his children, even, he is unable to recall, and of his numerous acquaintances at Mackinaw and in this city, where he resided three years, what can he tell you? Their very' names, like those of his numerous wives and children, have faded from his memory. So with the whole history of his useful lifelink after link in the chain of events corroded by the tooth of time, ihave dropped silently out. It is sincerely to be hoped that his country will not be equally forgetful. One eventful and important day, one striking and important event, however, dwells brightly and distinctly in the memory of this witness-and that day is the memoriable 11th of April, that striking event was the meeting of a couple of men on the highway, six months ago, in a buggy, with a bundle, tied up in a handkerchief, lying in the bottom of it. This day, this remarkable event, he can never forget. And I would ask you if, under the circumstances, as related by this witness, meeting with a man on the road, any other person than this Mr. Peeler would be apt to notice the fact at all, a bundle in the hind part of a buggy, while he was travelling the other way. Out of five hundred buggies that he has met, could he say what any other one contained? Would you remember that you saw a man on the highway, even if he had an ordinary looking bundle under his arm? There would be nothing peculiar to fix your attention, it would make no impression upon your mind, and you can thus judge of the possibility of this testimony. They were passing-and they saw some 91'thing remarkable and mysterious, it startled them-it alarmed them, they were afraid crime was about to be committed, they thought it must be a box of bogus money'! What else could you expect from:a red handkerchief, if not that it must be an instrument of music? This supposition was just as likely as the other, for of all the instruments of music that I have seen, from the deep toned organ to a three-penny jews harp, I never saw anything in the shape of this box! Is the shape of that box, thus tied up, so curious, so strange, as,to excite remark from those two men? It is not probable. And I will now see whether the other testimony, in relation to this matter, is any moreworthy of consideration. Mr. Cady tells you that he knows nothing about it. I take him to be an honest man;'and if he had said that he had seen it, I should have believed him. But does he say so? He thinks that he saw something; but whether it was a bundle or a bag or a box-whether it was long or short, he has no distant idea. His testimony is altogether too uncertain to justify any reliance upon it. I cannot follow this buggy in its various windings and turnings. If Phelps and Lake took this journey, hoping that it would be secret, ~never were two men so thoroughly disappointed. For, never since Michigan received its first white inhabitant, has a journey been so noted and observed. It is ordinarily very difficult to prove that upon a given day a man made such a journey: the proof of it would ordinarily be difficult to obtain.'In this case, it has been different. For never, since the flight of Mahomet, has a journey been so much remarked. The whole population have sprung up and sworn to the most minute particulars. They have rather overdone this part of their defense. For there is such a thing as overdoing the matter. It would probably have been safer if it had been proved by fewer persons. See what occurs at the entrance into the Beeman field. At every turn, witnesses spring up like the clansmen of Roderick Dhu, and confront Lake and Phelps, their demeanor, every thing about them. And strange to say, while they were all looking for something else, they found nothing but these men. Mr. Beeman was in despair for his lost son. He had gone, and he knew not whither; and he was crossing the field in search of his lost child. He was searching for what was plain in sight when he,started.- Ie could not find the boy, but he could see Phelps and Lake. Is the story true? can it be true that the old man sent the boy to'watch cattle-waited until he became concerned about him, and then started to find him and reached to a point more distant from;the place of starting, before the boy reached his point of observa-;tion. The boy says when he got to the summit of the hill the buggy stopped. The old man waited until he became concerned, then started; he had further to go, and just as he got in a line with th e boy the buggy stopped, both saw the same thing at the same time. There is another peculiarity, perhaps it is explainable, but it loo ks a little singular, he saw these men in the buggy and about ten min 92 utes after a man came from the west road with a load of rails; the buggy was going fast, the rails slow, and miraculous to relate before they had gone twenty rods the rails passed the buggy, going the slowest; however, all the while. The old gentleman thought at the time that this was a curious phenomenon and therefore noticed it particularly and has related it minutely. There was a peculiarity in his mode of computing distances as well as in his vision. But I will not dwell longer upon his testimony, you have examined the field, and you can judge if he could see what he pretends. I shall leave to other counsel to comment upon the remainder of this testimony. I have exhausted my strength and as I fear your patience. I shall leave the case in your hands-it is a weighty responsibility, but I know that you will discharge your duty with candor, with scrupulous honesty, with the best faculties which God may give you. I doubt not I have the happiness to address men upon — whose minds public clamour will fall dead and powerless. I have no doubt that you will discharge this great and weighty duty to your country, firmly and honestly, and that you are fully impressed with the necessity of maintaining those laws which have so long protected you, and which have surrounded you with blessings innumerable. Does any man lack motives to stimulate his loyalty and hearty allegiance to these laws and institutions? Let him consider their beneficent and glorious results, manifested in the present unequaled prosperity of our state and country. Let him trace the rapid advance of her hardy and enterprising population across this vast continent, carrying in successive waves its tide of daring emigrants far beyond her receding frontier of the primeval forest; marking out from its vast interior, state after state, and annexing them to the area of freedom. Over the wide plains of the far west, over the flinty summits of the rocky mountains, and through the gorges of the Sierra Nevada, now rush the tides of her vast emigration. Her progress is unrivalled in the history of the world. A little more than half a century ago, this great republic consisted only of a few feeble, sparsely populated colonies, bordering the sea coast and the large rivers of the east: destitute of wealth, of commerce: her rights often trampled on: her flag feebly supported, only by a handful of brave men. Within half a century that flag has been borne in triumph from the Gulf of St. Lawrence to the Rio Grande, from the Atlantic even to the distant shores of the mighty Pacific. Its folds are now swept by the rude gusts, that blow along the rockbound coast of New England, and fanned by the gentle breezes that float over the golden sands of the Sacramento Valley. The industry and enterprise of her sons have encountered and subdued every obstacle to their advancement. They have mined their way through the flinty barriers of rock. The mountain gorge and the deep morass have been leveled: her iron tracks and her artificial rivers now span the continent. "While through every vein of her vast empire flows in strengthening tides, trade, the calm health of nations." 93 What is the source and secret of her prosperity and greatness? — Has it been achieved by the valor of her arms? No. It has been the work of peace, not of war. The glorious achievement of labor, protected and fostered by wholesome laws and institutions; those institutions sustained and supported by the unwavering loyalty of her citizens. To that loyalty alone do we owe the stability of our institutions, and the prosperity they have bestowed. Upon that alone, can the government rely for the execution of her wholesome laws. To that alone can society and individuals look for protection from crime and aggression. To this best virtue of the good citizen, I confidently appeal on this occasion for the vindication of the laws of our State, for protection to the property and lives of its citizens. MR. FRINK. May it please the CourtGentlemen ofthe Jury: The occasion that has required your own business pursuits to yield to this call of the public, that you might aid in administering the laws of your State, is one that you may well hope shall not again occur. The duty that you were called upon to fulfil with fidelity, to that society and that government to which you owe allegiance, and, at the same time, to thirty-seven of your fellow-citizens, who leaned upon your integrity and judgment for the protection of the highest rights of citizenship, was one of fearful responsibility. A jury was never before empanelled under such circumstances as you were. Over forty men, living in a distant part of this State, were arrested and brought to this city, among strangers, to whom they were unknown, and committed to jail, not, as they supposed, to await an examination, in which they would be confronted by their accusers, and learn the details of their offence, but, contrary to all precedent, the laws were suspended, and after their imprisonment, a Grand Jury was ordered specially to receive the evidence against them. It was done in the midst of the most intense excitement that ever maddened any community. The daily and weekly newspapers of this city were fill. ed with successive charges of flagitious crimes. The maxim that every man is presumed innocent until proved guilty, was forgotten. Their accusationtand arrest was deemed conclusive of their guilt. It was regarded as a dereliction of duty and morality for counsel to undertake their defence. They were brought within a foreign jurisdiction to be tried by strangers. Although it was alledged that they were privy to a crime that would subject them to trial in this county, yet it was accompanied by such inuendoes as could not be mistaken in their reflection upon the entire people of Jackson County. The act and the explanation proclaimed that a conviction could not be obtained for offences that had been committed. My associate and myself were censured for leaving our homes, and becoming their counsel. The learned gentleman of this city who came to my assistance, was charged with having forgotten the feelings of the orderly people among whom 94 he lived. But we thought, if it was necessary that fifteen or twenty of the most eminent local counsel, and a large number fiom the interior, should come to the assistance of the public prosecutor, that it might be excusable in the defendants to have a mere corporal's guard to stand in defence of the rights upon which an attack was to be madeby an army of lawyers, so well appointed, occupying the main field and every out post. Moreover, we thought, when censorious expressions: proceeded from official sources, that the ministers of the law from whom they emanated, might not be more faithful to their oaths, binding them to support a Constitution that secures a fair and impartial trial, than we were to the best interests of society. It is well that we should never forget that the Constitution and Laws are the supreme sources of civil power-that an excitement produced by money, for selfish purposes, can never justify a departure from legal remedies. No such exigency can arise. How was this excitement produced? It was done by practising upon the credulity of an unsuspecting community. There had been occasional, inexcusableand unlawful interferences with the rights of a great and wealthy corporation. Instead of attempting to soothe feelings that had been outraged by injustice and oppression, its managing agents established a: system of espionage and surveillence. So long as it was conducted by the employment of honest men, its unsuspecting objects were beyond the reach of harm. But, in an evil day, the managing agents of the corporation departed from a fair, prudent and upright line of conduct. Unmeasured confidence was bestowed upon men who had never been known in connection with virtuous deeds-men, who by their lives of crime and inlamy, had outraged the feelings of all by whom they had ever been known-men, who by fraud and deception, had succeeded to their confidence and responsible trusts. Taking advantage of their position, they had unfolded, link by link, to their employers, the detailsof a conspiracy, embracing so many unsuspecting and unsuspected men, and organized to accomplish such wide-spread ruin, that those most deeply interested required confirmation of that which seemed to them so revolting as to be incapable of truth. Strong intheir knowledge of crime, and fertile in wicked expedients, the impostors were not long delayed by obstacles in the creation of circumstances that should; give an appearance of truth to their revelations, to the minds of those already blinded by prejudice. Three wretches, wearing the form of humanity, whose youth and mature days had left no trace of a single honest purpose or emotion, were regarded as the only oracles of truth in this State. Two of them had recently been inmates of the Penlitentiary, and the other had escaped imprisonment, not because of his upright conduct, but by the death of a worthy and esteemed citizen, with whom the evidence of his guilt of a felony was buried. Nearly an entire township of men, in a day of fancied security, having no suspicion that every word they had uttered within a period of two years, no matter how innocent its import, had been misrepresented, and that every time they had greeted a neighbor, had been associated with meditated crimes, were arrested upon the accusation of these men, who had been suddenly transformed from the oblivion of vice to the' full blaze of perfect morality. 95 Public sentiment had been abused and pre-occupied with an apparent firm conviction that they were all combined for the prosecution of an unequalled destruction of property, and for the indiscriminate murder of their fellow-citizens. The thousand employees of the railroad company magnified their depravity. Possessed of every avenue to the public ear, they had so poisoned the sentiment and feeling of the people of this county, and of nearly the whole State, that the only alternative left was to ride the tempest until it should exhaust itself. It was in the midst of this whirlwind of passion, that you were empanelled.But, like every other tempest of excitement, it has subsided, and the Law is left to assert its empire over them, and in their defence. It is no longer certain that expressions, disapproving of the policy and conduct of a public and corporate body, will subject men to punishment; and it may well be doubted wheter, upon the allegation of an isolated criminal act, the conduct of a life-time would be deemed important in an investigation of its truth, after the example we have had in this case. Two weeks is the longest period of time that could be occupied in narrating everything that has even a remote connection with the disputed fact. There is an illogical mass of testimony that has been imposed upon you, by making a promise, when it was objected to, that its pertinence should be established, and made apparent by that which should succeed it. If there has been an utter failure to fulfil such promises made to the Court-if the counsel well knew at the time that their pledges would not be redeemed-the object has not failed. That which was designed to prejudice, and to reflect upon the general character of the parties, is before you. It was designed to subserve the, same unholy purpose of the declarations, made not only in the streets, and in public journals, but in the presence of this Court, denouncing, in advance, as outlaws, and as their perjured abettors, every man who should be a witness for the defendants. If I had not seen the indictment, or heard it read, and should be required to state the offence for which the accused persons are being tried, from the body of the testimony alone, I could not name it. No one would believe it was for a simple arson. Therefore, it is well to understand on what proposition you are to deliver your opinion. What is the overt and distinct criminal act that stands affirmled and denied? It is charged that thirty-seven men hired another to burn the freight depot of the Michigan Central Railroad Company at Detroit, on the night of the 18th of November, which is denied by them. To maintain the truth of the charge, it was said by the counsel for the Government, that they would prove that these men had been combined together two years to destroy the cars, engines, track and buildings belonging to that corporation. If a combination had been formed for such a purpose, it would embrace the edifice burned at Detroit. Where is the evidence, in all that has been given in the progress of this trial, shadowing forth an understanding or arrangement between them for any purpose? Shall we be pointed to the idle, careless and unmeaning remark of some one of them, that he would never "give up" till he was paid for animals killed by the locomotives, or to some individual act of wanton mischief That does not even show a mutual knowledge of the feelings of each other, and falls far short of showing a con 96 federacy-a concerted plot-because there is no general community of design established by proof of an agreement. Individual conduct, in word or deed-cannot be made to overreach its author, and subject others to responsibility, unless those who are sought to be affected, were in combination to accomplish some purpose that would be furthered by such conduct. How may such relations be created between several men, as will make all responsible for what may be said and done by any one of the number? It may be done by an agreement to associate or join in the prosecution of some definite enterprise. If these men had agreed that they would hire another to burn all the buildings belonging to this corporation, whatever was said or done by any one of them, with the view and having the tendency to further the firing of the depot in Detroit, would make all equally responsible. The rule is, that before the statements or acts of one of a company of confederates shall be evidence against his fellows, a foundation must be laid by proof sufficient to establish primnafacia, the relation of conspirators.Three things must concur to make individuals, acts and statements evidence against others. st. T.'e parties must be combined for a common object. 2d. The d clIaaition must be made and the act performed while the enterprise is peoding, arnd not after it has been accomplish., ed. 3d. They must be said and done in furtherance of the very purpose for the attainment of which they joined together. I Greenleaf's Ev. Sec. III. If the remarks and interruptions of the free transit of the trains over the railway were not preconcerted, but vagrant and impulsive, they are not within any rule of law that can impart to them the dignity of testimony in this cause; and could not be so, if the structure of the indictment was such as to involve the question whether a common purpose did exist which they were intended to further. But the counsel were allowed to prove that which relates not to the fact in dispute now, and here, that which does not concern this, but belongs to another jurisdiction, under a promise that he has not and could not fulfil. It is a part of his case, and its legal effect the subject first to be discussed. Therefore, I will proceed to the charaeter, origin and authors of the distinct aggressive acts as proved by the Government, and claimed to be evidence of a conspiracy. Upon the 20th of August, Woliver, a witness, Filley and two Prices, went to a culvert west of and near Leoni, broke the chairs and threw the "Gazelle" off. Woliver says it V;as accomplished with an axe and a mill iron taken from a saw-mill. When and where did these thirtyseven conspirators assemble and determine that the locomotive and train of cars should be impeded and thrown down the embankment west of Leoni? Who of them all knew that such a lawless outrage was contemplated? No one, other than those who enacted it. The dissolute witness, who was one of the number, so convicted from his own mouth, swears that its was proposed in the hayfield, when its four perpetrators were alone. It was the the suggestion of a moment, promptly adopted and executed. In September, Filley and the witness went west of his house, and put a tie over the culvert, so that the end should strike the lamp. The same is true in this instance. The witness and Filley, as is sworn, 97 returned fiom Leoni in the evening. Upon arriving home, no meeting was held-no associates were consulted-but one of the two proposed the trespass that his mind had conceived at the moment, and it was acted upon in furtherance of their own individual and mischievous design. Again, in the same month, he and Filley, at the suggestion of the latter, went to the east switch at the Centre, and attempted to move it, but did not succeed-the cars did not run off. "The design was to injure the company." There was no meeting or consultation from which this fruitless attempt proceeded. If the witness is to be credited it was dictated from the evil impulse of the two'at the moment. Again, in the same month, in the fore part of the night, he and Corwin put a bar in the frog. No other obstruction, and the train was not thrown off. In this instance the witness has a new associate, and that which they did was equally unsolicited, unadvised, and-unknown to any but themselves, until the next morning, when Mr. Fitch discovered his bar where they had put it; he rebuked Woliver, and warned him against taking anything from his premises again for such a purpose. Mr. Spaulding found a tie across the. track near the dry marsh, in June, 1849, when going west with the locomotive "Dexter," butdoes not know who caused it to be placed there. Near the residences of Fitch and Filley he found iron wedges in the track-a little further west a,dead animal. That occurrence is made notable by the counsel in his opening argument. It. was upon that occasion that a threat was to be proven,'coming from Fitch, to destroy the property of the railroad, and endanger the lives of those who travelled over it, by the force of arms. The witness gives a different character to this transaction, which was made a point in the statement of the case'by the counsel, showing the determined and depraved intentions of a man whom they charge with being the author of all the injuries that have been visited upon the company. Spaulding swears that he, under the influ. ence of excitement and anger, declared himself. ready to be one to resort to the use of deadly weapons. Fitch simply replied that he could come on, if that was the game. He, like the other by-standers, was attracted to the place fromr seeing the locomotive stop-he had a right to be there-his manner and language was civil. He inquired, what is the trouble? He received a harsh and opprobious answer-he was denounced as a hyena. The animal seen by the conductor, and which he swore had been drawn on the track by a man seen by the fireman and engineer, was but its skin, apparently left there by a dog. Woliver, swears that in the forepart of September last, in the evening, himself, Price and Corwin, stoned the cars from Mr. Fitch's fruit yard. Again, that the same persons stoned them from Filley's orchard. Again, between Leoni and Michigan Centre, this witness says he and Filley met Corwin and Williams, filled their pockets with stones, and divided into two parties, and threw them at the cars. Again at, Leoni, at a ball on the 8th of July, Eben Price and Lyman Chanplin proposed to give the cars a little. This evil genius says he went with them, and swears that they threw stones. There was no 3ball at the time he states, and it is, extremely doubtful, whether any one 7 ~ - 98 threw stones at the cars at the time of the ball on the 4th of July or the 8th of August, and it is certain that the persons named by him, did not, for the reason that one of them, Price, was in the room at the time the cars passed, and another, who is not a party to this indictment, has sworn that nothing of the kind took place. A pile of lumber was burned at Michigan Centre, but by whom is not known. If it was done by an incendlary, it must have been an individual act. But there was no trace of the identity of the personby whom it was done. A baggage car was burned, east of Gidley's station, some 10 miles west of the place where the prisoners live, and while the cars were running at their usual rate. The origin of the fire remains a mystery. If it be claimed that any of the defendants were on the train, why not. prove it? Who had access to the baggage car? Its master was in it -especialiy at all the stations — hence one of these fire machines could not have been put in it without discovery, while at a station, and certainly not when in motion. A culvert was burned near the dry marsl. It was seen on fire soon after noon, in the month of June, first discovered by Mrs, Filley. The firl was not kindled by her husband because he was not at home when it occurred. It is true Phelps said he admitted to him that he burned that same culvert, but he has it done in the winter when he was at Niles. This must be false, not a mere mistake as referring to the burning of another, because this is the only one ever on fire. A train of cars was thrown from the track at Leoni and a man had one of his limbs broken. I regret that the trueicause of this accident has been proved, for several most eloquent and feeling speeches have been made upon it in the course of this' trial by the learned and sympathetic counsel, and especially by the venerable gentleman who has been the champion of the Law. It was known by a large number of men that the repairers had removed some portion of the track, and their signal was not seen in time to prevent the catastrophe-it was therefore the result of the negligence of the track repairers. An attempt has been made to hold these defendants responsible, not only for the injury to the locomotive, but for the shattered limb of an unoffending traveler. It was so far successful as to prove that the train was by some means thiown from the' track. The fact that the servants of the Company were chargeable with what occurred must have been known to the counsel, and was so notorious, that we could not refrain from giving the evidence, though the effect should be the removal of a topic so fruitful of declamation. As a compensation of its loss, I commend to the attention of the learned counsel as a theme worthy of their eloquence and their sympathy, door Wescott, in his four diffferent attitudes-first, crawling thro' a space of 4 inches in the fence -second, gazing upon the fictitious forms of Mr. and Mrs. Fitch retiring in the bed-room below, while they were sleeping above-third, with his head and ears thrust through the stone wall under Filley's house, listening to deliberations that were to settle the period of his existence-fourth, running through Fitch's park, the dogs chasing him into Goose Creek. Like Bunyan's Pilgrim he got into a Desponding Slough.] 99 The first obstruction upon the track in the county of Jackson was' discovered in June 1849, by the conductor of the locomotive " Dexter," How long after that before there was any other interference with the road? Not until the last part of August 1850. When did; Wescott, Sherman and other spies of infamous character go among the people of that community. In the month of August, prior to the obstruction of the Gazelle. When did these aggressions upon the Railway, such as stoning cars and putting timber on the track cease? They' ceased as soon as Woliver, Westcott, Sherman and their associates left the vicinity of Michigan, Centre. What a commentary does the coincidence as to the presence of these spies, and the depredations in point of time and locality furnish as to their character. If any other conclusion can be drawn from a fact so striking, than that these impeached and worthless. witnesses were the perpetrators of what has been proven, it must be upon some system of reasoning other'than inductive philosophy. If you ask what could be their motive? I answer, that Wescott:was out of business and destitute of means. He had been seeking the slavish situation of a guard at the state prison, as. a means of supporting life at a compensation of less than three hun-. dred dollars per year. Sherman and Woliver had worked on a farm, their compensation could not have been over twelve dollars per month. In the service of the railroad they received five or six hundred dollars per year, and their expenses when permanently engaged, and two dollars for twp or three hours of night watching. They had the reason furnighed by theit increased.compensation for keeping up the disturbances. When the obstructions ceased they would lose their employment. If they or any one of them threw stones at the cars, or put timber on the track they reported that some of the prisoners had confessed theact, their story was reduced to writing and they were required to swear to its truth. They have all examined their affidavits prior to coming to the witness box. If false they dare not depart from their. sworn statement. Henry Brown, a colored man, swears he heard Filley say he had no sympathy for the company"-" that the dry marsh would be a good place to run the cars off." "That they would let them know there was a God in Israel." He also heard Freeland say "there could be a plan fixed to blow the cars up." Has. any such attempt ever been madeT If soit is not proved. Woliver swears he heard the defendants sa&J they' would never give up until they were satisfied for the damages they had sustained,"-" that they would carry out their object in some shape," —they would stone them and throw them'off the track." If any were arrested, they would swear them clear —he heard them say " that spies ought to be knocked over —killed." Who made these threats? Upon his direct examination, Woliver attributes it to all of these defendants. Upon his -cross examination he is not-able to name any of them other than Champlin, Moulton, Hay, Tyrrell, and Fitch whom he had seen at Filley's house. Are these declarations.in furtherance of a common design? If so, what was it, and how was it tb be accomplished. The only motive assigned by these witnesses to any of the defendants was, a desire to procure payment for the propertytheyhad lost. Was it lawful? This isa 100 question that cannot be answered, as it depends upon circumstances which have not been proved upon the trial. If property was destroyed by the locomotives of the company which might have been saved by the-exercise of common prudence, the defendants had a right to seek compensation by ordinary and legal means. There is nothing in -the evidence that shows that they were insisting upon rights which did,not exist. If the engineers upon the road could have avoided the -destruction of property in any given case, without seiious detriment to the interests and business of the company, but neglected to do so it furnished just cause of complaint. The acknowledged feelings of nhatred entertained by all the officers and servants of the company towards the citizens of Leoni, renders it quite probable that they neglected to exercise such a degree of care to save their property, as they might and should have done. It is true, that such conduct and treat_ment would not justify the injured persons in obstructing the free pas-sage of the cars, or in wanton measures of redress. But it is equally true, as a moral and legal proposition, that they had a right to express their opinion privately and publicly, of a course which they conceived.to be wrong. How were these repressions made? Not as the embodied and combined sentiment of the suffering parties and their friends, assembled:for the purpose of devising means of redress, but they were casual remarks expressing the individual feeling of him from whom the senti-ment emanated, uttered in the midst of a promiscuous gathering of two or more individuals, in a bar-room. "The railroad was thle usual:-topic of conversation.'Why was it? This witness, who confesses.that he was one of the principal aggressors, upon every occasion that,anything wrong is shown to hae been done, says that the reason it constituted a topic for talk was, "that cattle had been killed." Is it.surprising that such occurrences, as frequent as they were in that vicinity, should excite remarks from those who were thus, in some instances, deprived of the last vestige of property they had on earth? Another expression which he says was frequently used in reference to what had been done, was, "it is right." What does such a declaration as this show? Not that the person who made use of it had advised or procured that which he commended, or that he had any previous knowledge or intimation of what had been done. Another expression proved by him is, "They will have no peace on the road until they pay for animals they kill." This opinion was expressed by,Champlin. Fitch is made to say, "The Company-can never run their road with.safety, until they come out and pay for cattle killed and damages done. " Again, in writing to the Superintendent in October, 1849, to inform him of the insulting conduct of an Engineer in refusing to stop the train for passengers upon the usual signal, he concludes the letter by this remark-"Now if this policy comes from you or your legal ad-visers, as did the half pay proposition, if serious accidents do occur on the road, on your head and you'rs alone, must rest the responsibility." That expression and that letter are evidence, and must have been intDended to have some influence as proof. Do they amount to a threat 101 that serious accidents should occur? If the remark that was made beseparled from the balance of the conversation, and the last sentence of the letter be detached from that which precedes it, such an unfair, illiberal and unjust motive would not be attributed to the author, even by the most unprejudiced mind, unless to subserve the purposes of this prosecution.'We have no disposition to shun any responsibility growing out of the letter., Thec Central Railroad is a public thoroughfare, and was once the property of the State-subsequently sold, and now owned and managed by a body corporate and politic, under a charter imposing upon it the obligation of receiving and transporting upon it passengers and freight, under severe penalties., It had a signal station at Michigan Centre, which was a promise and a pledge to the public that its regular trains should stop there for passengers. A gen — tieman and two ladies, friends of Mr. Fitch; fiom a neighboring State. relying upon the faith of this pledge, were there to take passage on the cars. The engineer made no effort to accommodate them, but' passed with an insulting, sneering taunt. Was it improper to repre — sent the fact to the Superintendent? Was it wrong and criminal toadmonish him, that such a want of courtesy would rather' aggravate-. than lessen the enmity that had been already engendered from what was regarded as real injuries? That which is imputed to the same defendant as a constructive threat "that they would have no peace on the road until they paid for cattle they killed," was intended as an expression of his conviction, that the' feelings of the inhabitants who peopled the line of the road had been so outraged, that a due regard. to its own-interests should induce a change of its policy by the Com,pany. It was prompted by what had already occurred, evincing thefact that however wrong, impolitic and wicked it might be, yet there. were some who were so powerless, that they could not measure arms, with a wealthy corporation in the courts of justice, who would retaliate by destroying its property. Another expression shown to have been made by one or more of the prisoners, was, that the affairs of the Company were badly managed —that it was',a monopoly.' Whether all such corporations are or are not monopolies, and whether they are more prolific sources of evil, than of blessings, and benefits, is a question of political economy, upon which the sentiments of legislators and constituents has been and are still divided. They were not favored by the people of this State during the first years of its history, but the government undertook to construct and control all works of internal improvement within its limits. An adverse policy was not the result of a change of public opinion, but its inability to complete and equip the roads it had projected and commenced. This Railroad was built and equipped for the accommodation of the people-it depends upon, them for its support. - While they have no power or disposition to control its management, they are deeply interested in the policy that shall direct it, and may require that the individual rights of the citizen be respected by its agents. They have a right to discuss, criticise and censure what they: deem to be unjust and oppressive-and there is no. power in this government to indict, convict and punish any of its citizens for opinions so held or expressed. 102"They would stand by and swear each other clear," is another expression. Who would swear each other clear? Woliver says they, meaning all of them. When pressed upon the cross-examination to name the persons and to tell what was said, he named four of the defendants, and the language used was,that "they had decided to stand by each other." Who were to be the witnesses? He says, Ladue,Cann and Jenkins. This was an unfortunate selection-two of them are nominal defendants in this cause-not one of them shown to have ever seen the Railroad, or to have had any acquaintance with those whose witnesses they were to be. Wescott has a different list of witnesses. It is headed by the Hon. H. B. Lathrop, who lives at Jackson, entirely removed from all social relations with any of the prisoners-at one time in the House of Representatives, subsequently in the -Senate of your State-then and now one of your most honored, upright and respected citizens. Ile has been sworn as a witness; so have Mr. Delamater, Mr. Holcomb and Hurd, three others who were to commit perjury; Why have they not sworn them clear? Where are the other gentlemen named? One of them, Morrison, has been a witness against them. You have seen five of them-you have seen that they are all of them high-minded, conscientious, incorruptible men; they are the men whom a felon, who escapdd his punishment by the decease of a witness, has denounced as suborned and ready to forswear themselves. "They would kill spies." Why should they kill them? Not because of any discoveries they had made which could harm them.What weapons did they use? Not such as are usually employed by the assassin, nor did they seek to decoy or surprise any one in an unfrequented place. But Wescolt, who was so vigilant that he lurked about their premises in the night time, was treated with a generous kindness due to a better man. While engaged in the furtheiance of a wicked scheme to disgrace, ruin and imprison Mr. Fitch, he was living upon his hospitality-he was sheltered in his house and fed from the bounties of his table. Is this the means by which this spy was to be murdered? The day of Dr. Rankin's decease was* one of evil omen. It left a villian, who had forfeited his social and civil position by a forgery, to crown his infamy by perjury. So many threats, so often repeated, would not answer. They would not sufficiently show the peril of. life that had been encountered by these public benefactors, without some attempt at murder. Wherefore, this spy thrust his head and shoulders through anaperture in a wall and there heard a plan for his own murder discussed and settled —like Stephen, he was to be stoned. He told his superiors at. Detroit of his impending danger. This falsehood served him a good purpose. He was promoted to employment in the depot at Detroit, and lived to come into the witness box in presence of this jury, pale and trembling under the load of falsehood that he has stated as truth in this cause. I leave this story with the simple suggestion, Whether it is probable, that if anattempt upon his life was meditated, the dining room of a hotel, with the inmates of the house all present, would be selected as the place for killing him. Thus I have enumerated the substance of declarations which have been proven, and which are claimed to show deliberation and concert between the prisoners. 103 The counsel said he would prove that the prisoners were regularly organized by a written, or verbal agreement, and met in secret conclave. Where did they assemble? Not in secret. How did they assemble? Not by appointment-for the reason, that whenever any of them met, it was evidently accidental, and because the place where they were seen was a bar-room, open for the reception of any and every one; or in the ball alley, where they were accustomed to go for recreation. — Therewas no regularity in the attendance of any ohe of them. On some occasions, Corwin and Williams were there. At other times, Price and Champlin were there. Each one was at liberty to converseupon whatever subject was most congenial to his taste. No effortwas made to prevent intrusion. -Woliver seems to have been always present. WVas there a secret meeting in the ball alley at the time, of the fight which has been alluded to? If so, Sherman and Wescott were of its:numbers. Was it a secret conclave, gathered about the locomotive "Dexter," and who composed it? Not twelveor fifteen men, approaching at once and from the samne direction, as stated by the Conductor, but from four to seven, coming from divers directions and separately, as stated by the engineer and fireman. Was that a regular, or a special secret conclave, assembled in Filley's barroom,. when. a homicide was discussed? Was the casual meeting in the sitting-room at Bascom's Hotel in the village of Jackson, where the constable served a process upon Phelps, a secret conclave? Was it a secret conclave, in the bar-room atLeoni, when Phelps was there to induce Corwin and Myers by falsehood to go to Michigan Centre with himt.Was it a secret meeting at Filley's bar-room,on the evening of:the 11th of April, when Hudson and the stranger from Marshall werepresent? If so, who but Phelps is responsible for it, with all its results? In short, was every promiscuous and casual gathering of two, three or more persons, at the most public place in the town, the most public house in that place, and the most public room in the house, a secret conclave, where details of a "conspiracy which has but two parallels in the history of the world," were elaborated? The affidavit and complaint made by Phelps, upon which the warrant was issued for the arrest of the prisoners, contains thle names of forty-four men. In that complaint, he has solemnlyr declared.and sworn.that each and every one of them were conspired together and had been from the year 1849, for the destruction of property and life; that in pursuance of an agreement between them all, they had not only employed Gay to carry out their common purpose at, Detroit, but a certain other person, (meaning himself,) to burn a depot in Berrien county. How does it happen that his memory as to the connection of all of the prisoners except five with the offences enumerated in that complaint, has become oblivious? Ile says he was their confidant — that he had deceived them into the belief that he fully sympathized with them —that he met with them by appointment; and yet. he has not sworn to a single secret assemblage of any of them. Does it rest with the counsel for the Government, when four or.five persons are seen at a bar-room, attracted there by that which is too much the attraction of such a place, to characterize their.casual meetings as a secret conclave? Do they. believe that fifty farmers, scattered over sev eril townships, were accustomed to meetto concert crimes involving: the destruction of property to the amount of seven millions of dollars, and an indefinite loss of life? Is it conceivable, that fifty men, who have lived honored and respected, would combine to obliterate every trace of a great public work, that brings them into an immediate proximity of neighborhood with market towns? a work, if well managed, that is the surest guaranty of their own prosperity, the benefits of which will be the richest inheritance of the future generations who shall succeed to the inhabitancy of this State, Where is the evidence of the written or parol constitution? Wo were the officers of this dreaded association? Like every other fearful thing in connection with this prosecution, they are creatures of fiction, and their history' will only be transmitted by the opening speech of the counsel. They will live in memory while fhat speech shall be read and remembered and no longer. Combine the evidence of distiuct aggressive acts, of declarations, and secret deliberative meetings,-they include all the testimony fromn which you are solicited to believe that the prisoners had entered into a compact that had continued for the space of two years. If such is the fact, would there not be other evidence of its truth, in the ruins of depots, removal of iron rails from the track, in throwing cars down embankments and into the dry marsh, and in some loss of life — Would not such a picture be the legitimate consequence of a conspiracy embracing fifty men, instead of an occasional obstruction upon the track? In every instance where it has been proved that the transit of the cars was delayed-by obstructions or by stoning them, the evidence excludes even a probability that it resulted from the deliberations or advice and consent of any person other than those who were present and committed the outrage. Who advised or knew that stones were to be thrown at Leoni on the 8th of July? Woliver says it was suggested by one of the four by whom it was done. Who advised or knew that stones were to be thrown into the cars from Filley's orchard? Admit that Woliver tells the truth, no one but himself and one other person, who helped him to do it. The same is true as to all the depredations to which he has sworn. He is the only witness by whom an intermeddling with the track or cars has been proved. Who procured or advised the burning of the woodpile that Sherman, a spy, has sworn about? He says that he was told by agents of the Company to lead Corwin to do it. He followed the directions of his superiors.Corwin drank with him so freely, that he was forced, literally and' physically, to lead him, for he could not walk without support. Was the burning of this wood concerted in a secret conclave by these prisoners? The testimony of all these witnesses conspires not only to refute, but they prove that none of these aggressions were committed in furtherance of a common purpose. Therefore, if this branch of the case is essential, it must rest for its support upon the evidence of Phelps, Lake and Wescott. No conspiracy is stated in the indictment, but they are charged with having incited another to do that which the law defines to be a felony. Hence it is not important to a correct decision of the question involved in the present issue to inquire or determine whether such relations existed between them or not. If they 105 had agreed with each other to procure the burning of the edifice, and have done so, the agreement is merged in the higher offence of its execution.-5 Mass. Rep. 105. If Gay ever made any such admission as is stated by Phelps, it shows that he fired the building in the cupola at eight o'clock in the evening. This would have been almost impossible, because several men were engaged in elevating wheat until twelve o'clock of the same night in the immediate vicinity of the cupola; besides, a watchman was on duty. A man of Gay's dissolute habits and appearance could not have passed uinchallenged through' the entrance of the building,ascended the stairs, traversed four hundred'feet of the edifice upon the second floor, and. ascended the stairs to the cupola, in the very midst of the men at work at the wheat bins. It is impossible that he should not have been seen, and if seen, a box containing the match could not have escaped observation. If he carried the match to the depot-on that occasion, it was charged and placed in a box filled with camphene, without any substance intervening between that fluid and the cotton which was set on fire at his house and in this condition conveyed from his residence through the streets of this city. It does not require an intimate acquaintance with chemistry to determine and know the fact that this fluid within the box would not add to his success, because it is incapable of combustion. Before he could have preceded twenty feet his fire would have' become extinct, without the presence of atmospheric air. Turpentine or camphene would not supply the oxygen. The admission by Filley that he was an accessory before the fact is that Gay was directed to place the machine in the cupola, and that he followed directions. Fitch makes the same statement as to the means by which it was accomplished. Thus it will be seen that what has been sworn to as evidence in this call combines to fix the origin of the fire in that particular place. The general proposition that a confession made freely from a self conviction of guilt is competent evidence, is not disputed. We must first, then, be convinced that such admissions were made by the defendants to whom they are attributed. It is not improper to suggest that nine tenths of the perjury committed in courts of justice is by fabrications of an admission either direct or by implication, under circumstances that renders a construction improbable. There is a moss striking uniformity of expression in the language that conveys the confession of such of the defendants as Phelps and Lake have sworn were made to them. In every instance the language employed is "I paid twenty dollars towards burning the depot in Detroit." "I paid fourteen dollars."'I paid thirty dollars." "It cost me a cow and forty-five dollars." "I paid twelve dollars." Two of the defendants only, departing from this stereotyped phrase, proceed to state the manner in which it was accomplished, and one of them, Filley, being more garrulous than the others, proud of his inventive genius, gives' a minute description of the manner in which their fire machine was constructed. There are reasons, strong and conclusive, against the truth of this portion of the diary which Phelps has recited in your hearing. It is unusual and improbable, that men possessed of ordinary intelligence, 106 aIll having their friends, some of them surrounded by many of the luxuries of life, and by the felicities of the domestic circle, consecrated by years of uninterrupted enjoyment, should thus force that which was a secret to the whole world beside, upon a worthless vagabond. The fact that a second and a younger villain was associated with this prince of devils, after the plot had progressed through half its history, incidents and fabrications, to whom admissions are represented to have been thrown out in the same easy, half-careless form of expression, furnishes no stronger proof of their verity. Men of known integrity, and wh6se veracity was beyond the reach of corruption, possessed of all the advantages which intimacy and personal friendship could bestow, have approached these defendants with the view of learning whether they were connected with or had procured the commissionof misdemeanors, in vain. The punishment denounced by the law upon the act of obstructing cars or removing rails, is not infamous. Yet, with all the appliances, skillfully wielded, which have been addpted by the numerous respectable persons who have successively for the last two years confidentially; secretly and openly labored to discover the evidence of guilt of some of these defendants, or others who were suspected, nothing but successive failures' resulted. But when this High Priest of Iniquity appears upon the. field, a man by whom he was loathed and shunned, who was so well convinced of his hopeless depravity that he refused lo sign a petition to the Executive of the State asking the interposition of his clemency to terminate his imprisonment, when the period of his sentence would have expired in the short space of six months, makes him the depository of his liberty, of the hopes and joys which surround the domestic hearth; —this graceless villiap, who in your presence tells the monstrous falsehood that that defendant; Mr. Fitch, who was instrumental in his conviction and in bringing upon him the just punishment of one of the felonies he had committed, was his best friend,:should remember that the jury box is consecrated to justice and to truth. No relations of intimacy or friend. ship had ever been established between them. His brief residence at Michigan Centre is celebrated only for a fraud upon Mr. Root, who is a fiiend of Mr. Fitch; therefore not.calculated to recommend him to the confidence of those from whose minds the recollections of his con-'duct had not been obliterated. He left Michigan Centre, after a residence of a few weeks. From that time to his trial in 1844, he was not in the vicinity of the residence of these defendants. Although he has denied upon his oath any feeling of enmity towards Mr. Fitch, it is nevertheless true, that he has occasion to remember him as long as the recollection of his own imprisonment shall endure,as having performed'the duty of a good citizen, faithful to the laws, in giving countenance and assistance to his prosecution, and to afair and impartial trial. That'he does remember it, is shown by the testimony of Mr. Calvin Beebe, a worthy, high-minded and conscientious man, who has told you that the first feelings awakened in the mind of Phelps upon receiving from him the intelligence of his pardon, was hatred and revenge. The only intimation which he then gave of his future career, was a most'deliberate and determined threat, not to overwhelm Mr. Fitch with tokens of gratitude for the friendly assistance he had rendered him o10t upon his trial, but to give him the same feed that he himself had had. It isnot tre, then, that he was invited to visit this defendant as one of his best friends-to receive the assurance of his sympathy for a wrongful imprisonment. If he was induced first to go upon the premises ot this party, as he states he was, and if a partnership with him in making connterfeit money was so much desired as that Fitch should propose to hire him to burn a depot, as a means of giving him the pecuniary ability to form such a criminal connexion, why should it be necessary to tell him what was done by Gay in the city of Detroit? Is it consistent with the history of those who make crime and plunder their vocation, thus to publish the fact, especially to one who had not become associated with them' This question is disposed of, by showing that there is so much of truth in what he has related as occurring in his first and second interviews, as that he was at Michigan Centre; but the balance must be false-it is made so by proof that he approached that defendant with the lying and deceptive pretense of wanting to purchase his oxen-that he was repulsed with what might be termed rudeness, and what would have been so regarded by any man who was not a hopeless villain, whose purpose was not honest, but wicked and corrupt. How strangely does the truth, as shown by his relatives, comport with that sincere friendship and regard with which he says he was received upon both of these occasions, and the proffered hospitalities-of the table. It was at these interviews that he makes Fitch admit his-participation in procuring the commission of the felony described in the indictment. Having shown an absolute impossibility that it should be true, how can he be believed capable of speaking the truth as to any other material facts? When and how was the match and money sent to Detroit? If we look to the extract with which we have been favored from the late book by Phelps and Lake, there is a careless uncertainty as to dates which is to be regretted; but it may be excusable if it was the production of the junior author, and was inadvertently transcribed to the diary without the criticism of his more accomplished and classical associate. The time was last fall, and it was sent from the Centre.Who carried it? Not any, one residing there, for it is inconceivable that any of the defendants should have gone from there to Detroit without the knowledge of some one. It could not have been Gay himself, for he was never there. If sent by any one, it must have been.some person who lived in Detroit; for the reason that the money was retained until after the service for which it was to pay, had been performed. Who, then, is that person who acted as the broker of these mnen. He must have been a fictitious being, for if such a thing really occurred, the man who carried, kept and paid the money, could and would reveal the fact. This confidential agent could not have come from the neighborhood of the prisoners and remained in this city waiting for Gay to fulfil his agreement, without his absence having been known to those by whom he was surrounded. And if it had escaped their notice or memory, a thing so important,and which would corroborate this abandoned witness, would have been drawn from the defendants or some one of them by Phelps. Would they not be quite as likely to tell him who it was that performed this important part in the 108 progress of their arrangements, as to tell him who was the principal man in the commission of the offence? Butif it is true, as we allege,. that the arrest and trial of these defendants is the result of the conspiracy between Phelps, Lake and Wescott, it would be hard to supply this omission even by fiction; for if he had made those who he says stated that a purse was made up for the purpose of paying for the crime, go farther, and state that some particular person carried it to Gay at Detroit, he would have furnished the means of showing either the falsity of his own statement, or the means of showing that if the admission was made, it could not be true-as if he had said they told him that it was sent by Farnham or Lemm. It could very easily be shown by them that they had not been to Detroit or absent from their homes, within the whole year. So, also, if he had made them say that it was sent by Smith, or by Boyce; one could show that he was not away from this city at any time last fall, and the other, that he was in jail, perhaps. The truth could not havebeen suppressed by making such a pretended accomplice a defendant to the indictment; for his friends and neighbors would know that he was not from home. If he had even charged this act upon Jo. Dows, the same difficulties would result. When and where did Fitch, Filley, or any one of the thirty-seven prisoners who have been on trial ever become acquainted with, or even see or hear of, George W. Gay? None of them have ever lived within eighty miles of him; nor had any of them been in Detroit-at least it is not proved that one of them had ever been here within two years before the fire. But if Fitch had visited Detroit, how did he find Gay? who informed him of the existence of such a person? and what was there in his character, habits and appearance, that he should be selected, above all others, as worthy of confidence? There was nothing to attract a person to him for such a purpose. His vicious habits had left him a mere wreck-he was dissipated and surrounded by lewd women -his house was open for the reception of any one who chose to visit it. So situated, it would have been seen at a glance that betrayal was one of the chances that must have been encountered by his employment. His house was filled with inmates from whose eyes it is hardly possible that such a novel instrument could have been kept. If he had left his house on the night of the fire a sufficient length of time to go and to return from the depot, why have they failed to prove the fact by his wife, having her under the influence of Lake? What reason could have induced her removal from the city, and why was she surrounded by the instigators of this prosecution to prevent any communication with any one in behalf of the defendants unless her evidence was feared? Thus it is shown that the prisoners who are charged with having procured the act of the principal, had no acquaintance with him. The fire when first discovered was not located in that part of the building in which the admissions sworn to by Phelps locate it. Capt. Turner swears that he was in his vessel upon the south side of the depot at the wharf: that he first saw the fire in the cupola, and at no other place. However, he might be, and probably was deceived; he being upon the opposite side of the building, the reflection of the fire 109 upon the large windows in the cupola would give it the appearance of beinglocated where he believed it to be. It was a mere optical delusion, which could not be avoided in his position in relation to the cupola, with its windows, and the fire where it was in fact blazing from the roof, as described by the witnesses for the defence, who saw it from different and more advantageous localities, two looking from the third.and fourth stories of Johnson's Hotel, one looking from an eminence;at a little distance south of the depot, and commanding a perfect view of the roof, with nothing intervening to create any such delusion. The dimensions of the edifice and uses for which it was occupied, rendered it liable to take fire from accident. Several witnesses for the Government have sworn that the engine and, machinery were so disposed, and the depot so constructed, as to render it improbable that it -should take fire from accident. This may be true in their opinion,but all experience and observation shows that it could not be free from danger. Its roof of pine shingles presented a surface of eight hundred feet in length, with no better security than, paint. It was lighted upon the second floor, by candles, sometimes used without reflectors, by being placed upon the wheat bins made of undressed pine, and permitted to burn until the candle was consumed, so that the blaze would come in direct contact with the dry and combustible material of which they were composed. On the night of the fire, men were at work in elevating wheat to those bins until twelve o'clock. The particular manner in which they secured their lights upon that evening does not fully appear. There is no reason to conclude that the lights were arranged. differently at that time than they had been before. It is a singular fact, that no one of the servants of the Company who were laboring about the wheat bins until within an hour or two before the fire was seen,, has been called here as a witness to show that the lights were so well secured as to prevent its origin therefrom except an overseer. The names of those persons are not known to the defendants or their counsel, hence it was not in their power to procure their evidence. It is unaccountable that the fire should have been seen first in a blaze ascending from a scuttle window in the roof, before any blaze wasvisible in the cupola, unless it originated from these bins. The floor of the cupola was some two ieet above the edge of the roof of the main building, as testified by Mr. Brooks, and, if this box was placed upon that floor, the whole cupola would have been enveloped in flames and consumed before the fire could have spread to such an extent as to burst forth in a flame from a window in the roof, several feet therefrom. So that it does now remain a mystery whether it was the result of negligence or design. There is nothing but the simple naked statements of Phelps and Lake, of certain pretended admissions from which to draw a conclusion that it was designed. It is not even shown that Gay was not at his house at the time, or that he or any other person was in or near the depot at that time. It is not shown that the alleged incendiary had any such destructive implement. PROOF OF THE CORPUS DELICTI. Like every other criminal trial, there is a distinct and isolated crime 110 charged upon the defendants in this cause. There are three counts in the indictment. The first, names all the parties to the record as principals in the commission of an arson.'The second presents Gay as the, principal offender, who performed the overt act. The third, charges that the defendants now upon trial procured Gay to commit the offence, which makes them accessories before the fact; the last with having feloniously maintained him after the crime, knowing that he was guilty of it. The evidence is all addressed to the third count, and it rests entirely and exclusively upon admissions. It is said by Phelps, that at a first interview between him and the supposed felon, the latter confessed that himself and a number of men living in Leoni, were connected with the burning of the depot. This conversation occurred within a few days after the fire. At a second interview on the next: day after the first, he is made to disclose the means by which the fire was communicated, and the names of those who furnished him with the latest invention for incendiarism. Who was the man who thus confessed and boasted that he was the author of such a revolting crime? The prosecution said that he was a man who had been notoriously engaged in all manner of crimes. He was about fifty years of age, and so far as we are advised, he had never been convicted or detected. What induced him, at that advanced period of his life, to publish that he had done that of which he had never been suspected? Not any relations of intimacy or friendship with Phelps, for many years had elapsed since they had seen each other. What led Phelps to seek Gay at the time he did? He must have had some motive. It could not have been from any suspicion that he was the midnight incendiary whose depravity led him to destroy that magnificent structure, which was not only an ornament to your city, but the just object of the pride, of its citizens, because Phelps had not then become interested in the detection of the) guilty one. He was in the service of the United, States' District Attorney, ferreting out counterfeiters as he says. He did notseek him under an impression that he was engaged in making spurious money, for the reason that he had known nothing of him for years. How did it happen that Phelps was directed to the very saloon where Gay and Van Sickles were in consultation? Moreover, how did it happen that Gay should meet his friends in a public saloon, there to discuss and devise plans for escaping punishment for past misdeeds' Why did they not assemble at Gay's own residence, where they would have been secure aBd unmolested? Why was Phelps admitted to their confidence without any knowledge of his habits?' But again, it is said by Van Arman that the same thing was repeated in his presence.Was it said from a consciousness of guilt, or was it an idle boast? This witness approached him in disguise, and, as he says, under an assumed, false and villainous character; he professed to be an accomplished counterfeiter, and to be possessed of an inexhaustible amount of well-executed spurious bank notes. He solicited what might be termed a partnership. He boasted of fictitious and flagitious crimes. It is a settled rule of law that, a confession shall be evidence agianst him whomakes it, only when made freely and from a sense of guilt. If any inducement is held out to excite hopes of favor, that prompts the admission, it cannot be free. If deceit be practised upon the mind that 111 leads to the declaration of an act that was not perfomed, it is not con-k clusive. This witness admits that he procured the statement from Gay by finesse and deception. Would it be strange that Gay should have deceived him? He professed a desire to become associated with Gay, if he could give sufficient assurances of his discretion and shrewdness in ciriinal enterprises. He spoke of burning buildings, proffered his assistance in destroying your entire city, called the attention of his dupe to the burning of the depot as an exploit of extreme merit. Under such circumstances, would it be surprising or inconsistent with Gay's life and character, that he should have claimed the paternity of an exploit so meritorious in the judgment of his friend and contemplated associate? The evidence of the witness is, that they were engaged in a lying, bragging revel. He would hardly deem it fair that he should be held responsible for the falsehoods he uttered, by trial, conviction, and sentence for the crimes he professed to have committed. Is it just to hold Gay to the truth of what he said, when responding to that which was untrue?''here is a legal objection to all the statements of Gay which have been proved in this cause. He is not on trial. Therefore, nothing that he may have said of himself, can be evidence againstthe prisoners. I has repeatedly and always been held, that the admissions of the principal felon are not evidence of his own guilt as against accessories. The body of the crime cannot' be shown in the present trial, by the declarations of any one who is not on trial. — If Gay had not been indicted, the prisoners being on trial as accessory to the arson, could not be affected by his statements. The fact that he was iidicted, cannot add any legal force to anything he may have said, as evidence against others. His statement that those named in the indictment hired him to burn the depot, and paid him for doing it, is no proof against them that they did so. Why, then, should his statement that he did burn it, be evidence against them of his doing'so? Russell on Crimes, 43; Roscoe, 40. Phelps swears that, about the 18th of December, he went to Michigan Centre to. see Fitch: that the real object of his visit was "to lay him out," that he had become satisfied that this defendant was connected with operations beyond the limits of his own.,county. He professes to have gone with him to his barn, half a ml e distant from his house, and that he was there shown spurious money, and the implements for fabricating it. He affects to'believe that something was said at that time about the burning of the depot. If anything was said, why:hasitfailed to find a place in his diary? Not because he was not then employed by the railroad, for-that would not obscure his memory or induce carelessness. because he was there to accomplish the ends of public justice, if he has told the truth as to the reasons that induced him to go there. But was it true that he was there from any pre-existing evidence of guilt? A correct answer to this question involves the credibility of himself as against five witnesses, whose statements concur to show the impossibility that what has been related as a real occurrence could have happened. He swears that the conversation at the barn occupied the space of two hours. At least half an hour must have been occupied to go there and return. What space of time elapsed between the act of his leaving Laycock and Blackburn, 112 and his rejoining them to return? Henry and Martin Laycock and Blackburn have sworn that not to exceed half an hour intervened; and the latter witness says that he went not to the barn, but to the residence of Mr. Fitch, directlyopposite the tavern, with the avowed object of purchasing of Fitch a yoke of oxen; that he returned after the lapse of a few moments, complaining of his treatment; they then returned to the residence of Mrs. Laycock, the place from which they started, at about one o'clock; from whence he and his wife and child were carried by one of these witnesses to the house of another of his relations, where he spent the balance of the day. Hence that which he has related as havingooccurred between him and Fitch is a mere fabrication. It is not only improbable that he should have been at the barn, but it is not possible. Again, he has sworn that in the first part of the month of January, he went a second time to the Centre, in company with Wm. Laycock, a relative of his wife; and in the ball alley, near the hotel, "Fitch spoke to him of the Depot in this city; said they had prepared the match there and sent it to a man in this city, and paid him one hundred and fifty dollars for burning the Depot; said it was constructed so as to burn a given time, and they gave instructions about it; he did not tell who the person was it was sent to, but said it had been done as directed, and when it burst out it spread so rapidly that all the water in the river could never extinguish it; said they had injured the company to the amount of half a million of money during the past year, and would double that the ensuing year." Did Fitch make any such statement or confession to him? The man who accompanied Phelps to the Centre, and was with him constantly during his stay there, says that no such conversation occurred; on the contrary Phelps pretended to be anxious to purchase the oxen again-that after making two or three offers, which were declined, he was told in an abrupt manner that he could not purchase them at any price. Was this the language of confidence and friendship, or was it prompted by distrust and a knowledge of the infamy of his character? There is no probability of mistake on the part of Laycock, for he was solicited by Phelps to carry him to the Centre, upon the pretence that his only motive in going there was to make the purchase. He went from the buggy to the barroom with him, thence to the ball alley, where he heard every word that was uttered between them. From there he again accompanied them to the bar-room, where an increased sum was offered by him for the oxen-to which he received an answer that terminated the negotiation. They left, and Phelps, chagrined at his ill success, threatened this defendant with imprisonment and disgrace. Why did he go to the Centre at that time? Was it from a desire to purchase the oxen for an equivalent, or was it to make an attempt, by false pretences and tokens, to corroborate a pretended confession of the third great crime of the world? The dialogue that occurred between himself and wife after they had retired, furnishes a significant index to his real design. She inquired if he was going to see Fitch the next day, and if he would be able to do as he had expected?" to which he replied, that "he should go, and if Wescott would prove true and do as he had agreed, he thought he could come a good drive. What was his good 113 drive? Not the purchase of the oxen, because he could not get them without paying their value. Not in any other lawful or legitimate enterprise, because he did not contemplate any. The object he had in view must have been illegal, secret and corrupt. The false account that he has given of what transpired between himself and Fitch, on the next day, shows how his drive was to be accomplished. He professes not to have formed the acquaintance of Wescdtt until late in the month of February. Is it probable that he was employed in the same vocation, watching the same persons, making reports from day to day of his observations, to the same employer, and failed to come in contact with Wescott? On the 25th of December, another of the prisoners is said by him.to have inquired if he had not had nogotiations with Fitch about burning the Niles depot, and by way of encouragement, to have stated that they made a match, describing the manner of its construction, and sent it last fall to a man in Detroit, with instructions to place it in the cupola; that he did so, and the depot was burned by it. What induced him to go to Filley's on that day' Not the request of Fitch,made at Jack. son the day before he was sworn, because he did not and could not have seen him at the time and place mentioned, for the reason that Fitch was in another part of the county on that and the two succeeding days. Therefore, he swears false when he says he was there by appointment on Christmas day. He was there from the promptings of his own evil thoughts. It was a holiday and the occasion of a public gathering. He swears himself that there was a shooting match on that day. Hence it was a fit occasion for his presence, if he designed to swear to admissions, but not a suitable time or place for a criminal rendezvous. How did it happen that Filley should relate the history of an arson already committed? Phelps says that it was because Fitch had told him of the interview at the barn. But no such interview occurred. Therefore there was no inducement for the confession. He swears that that statement was made in the ball-alley, and that Lemm and others heard a portion of it. Is this the reason of Lemm's being imprisoned and put on his trial jointly with the others? Nothing else has been proved against him. A confession of so much moment, so fraught with guilt, would not be left without his corroborative statement, if he was really present, and if the thing really occurred. The bare fact of placing him in the relation of a party, is strong proof that the story is a fiction. What was withheld from Phelps on that holiday visit, the first one in all his life that he had made to Filley? Every incident of his life not surrounded with danger and disgrace. What was communicated to him? A long series of misdemeanors, concluding with the details of a felony, conceived and related in a boastful manner. Who made the first advances, and how did the conversation commence? Filley is made, first, to inquire of this journeyman witness if he had received a proposition from Fitch to burn the Niles Depot, and if he had concluded to accept it. What interest had he at that time in the discovery of those who were connected with the injuries that had been visited upon the railroad company? He had not then been employed for that purpose. If a portion of these prisoners were his best friends, would he attempt their ruin without procure. 8* 114 ment or reward? Early in the month of January, in talking with Williams about a plan to get rid-of dangerous witnesses, he represents him to have said that the burning.of the depot cost him $17; subsequently $20. Freeland at the same time said that he had paid $14 towards burning it. Price, that the burning of the depot cost him $10. Corwin, that it cost him $12. Willard Champlin, that they had made up a purse for Gay for burning the depot. The balance of the fold are brought in by Lake. Mount and Ackerson were principal witnesses against Phelps at the time of his conviction for horse-stealing. It was an act of extreme prudence in him that he sent Lake to receive the confession of these, two prisoners. Like master, like pupil. Phelps always obtained admissions from those to whom he devoted his attention, at the first interyiew, and as the first thing said, so with Lake. He pretends to have been informed at Jackson that his two subjects had taken a job of "grading" the wheat house at that place; wherefore he went to see them to draw them out, He remained at Ackerson's house some time, until he returned with a load of hay; he then got the two together, and although Mount was beset by officers for grabbing a pair of buggy wheels, the few moments that he was with them at the barn answered all the purposes of a day. They not only told him they had taken the job of burning the wheat house, but they had made up a purse last fall for Gay, for burning the Depot at Detroit. There may be so much of truth in this relation as that Lake did go to Ackerson's house, under some false and lying pretence but the story itself bears unmistakeable evidence of its real paternity. Its characteristics are too striking-bears too strong a resemblance to the free, easy and accomplished style of the confessions to which Phelps has sworn, to leave any doubt that he wrote that part of the diary. Lake may have suggested-the story of the hundred loose women who were to steal the bushel of watches in Philadelphia. Here we have all the direct evidence of the body of the crime. It rests entirely upon admissions sworn to have been made at such times and places as to render it impossible to show their falsity by any ordinary means of direct proof. They are claimed to have been made under circumstances that may well excite the apprehension of the honest and and upright who may have been so unfortunate as to excite the hatred of a vicious and outlawed villain. Is it to be believed that ten men, possessed of their reason, at the first time of seeing one of these men in several years, and at the first time they ever saw the other, would commit their liberty to their confidence? The king bee of the hive of witnesses foresaw the difficulty he would encounter, from the utter improbability that secrets of such moment would be entrusted to any one; therefore he has attempted to make his story plausible by a pretence that he had deceived them into the belief that he would be their accomplice in burning the Niles depot. Not only so, but he has produced a duplicate of the instrument with which he says the flame was communicated to the building. It was all important, to complete the proof of the corpus delicti, to show, 1stt that the edifice was constructed of such material as to render it susceptible of,destruction by fire; 2nd, that it was burnt; 3d, that it was probable, or at least possible, that it was accomplished through the agency of an incendiary by 115 some means. The means mustbe adequate to its destruction. The fire could not have been kindled in the cupola at 8 o'clock in the evening, or. at any time before the building was closed, because being constructedof pine, which was made still more inflammable by paint,. it would have been speedily enveloped in flames. Therefore, if it resulted from a criminal act, the machine must be shown to be such an one as would have retained a-fire, slowly burning, without creating a blaze for the space of six hours. The match which has been given in evidence could not have produced the fire, as we have shown from thorough experiments. It was made from a block of whitewood, from 4 to 5 inches in diameter, and a foot in length, in the centre of which a, hole was bored with an inch auger lengthwise, to the depth of 8 or 9 inches, which was varnished and filled with camphene; four other holes were bored with an inch and a quarter auger in a circle around the camphene chamber, at or near the bottom of-these larger holes, others, half an inch, were bored transversely so as to communicate with the four larger ones. A paper tube, designed for a chimney, of from 1-8 to 1-4 of an inch in diameter, was placed in the centie of the larger holes, and then filled with dry cotton, paper and oakum around these tubes. In this condition, fire was said to have been applied through the transverse or small holes communicating with the cotton in the larger ones, byGay at his house. It was then placed in a box containing two quarts of camphene, and the box nailed up; in which condition the witness represents that Gay conveyed it from his house and deposited it upon the floor of the cupola. If, as a matter of fact, it was so done; no fire could have remained in the box when it was deposited, for the reason, that the experiments which have been made and proved upon this trial, show, as a fact, that if fire was communicated to the cotton it would not and codld not have burned five minutes. In the experiments which have been made, a hole was first charged with oakum tightly packed around the tube, also one with cotton. Neither of them could be made to burn slowly or rapidly. Another was charged with oakum and cotton alternately, loosely packed, with the like result. Neither of them could be made to burn for a moment. Another was charged with cotton saturated with spirits of turpentine; upon applying a lighted candle a momentary blaze only was produced; the fire became extinct. Turpentine was then poured into the bottom of thelarge hole and fired; it burned not to exceed ten minutes, and only until the liquid was consumed, but the saturated cotton did not burn at all. In other words the fire could not be made to advance upwards in thelarge holes. The varnished chamber was filled with camphene, and confined with black wax such as Gay is said to have used. In less than five minutes the wax began to recede into the chamber, presenting a convex surface. In less than two hours it broke, and the camphene ran out of its chamber upon the floor. This has been shown as a fact. It is philosophically impossible to accomplish any such thing with this new invented implement, as Gay and these defendants are sworn to have confessed had been done. A fire cannot be made to burn unless the chamber in which it is kindled is larger than the chimney. — In other words you must have what in common parlance is called a. 116 draught. ~This cainnot be had unless your chimney is smaller than the space for the fire. There must be a compression of the air. This match is tot constructed upon that plan. On the contrary, in a moment after.applying the fire at the bottom of the large hole, the cotton will be burned for the space of an inch. This constitutes the chamber for the ire. The transverse hole being less than half its size, is the natural and only chimney through which the air, obeying its own law, will pass. It cannot be made to pass upwards through the small tube placed in the centre of the large holes; but these tubes serve the same purpose as the aperture which is left in a stove to be covered by a /damper. Like it, the tube will admit air, which will increase the force tf the draught in the opposite direction.'There is still another and a greater absurdity in the suggestion that such a block being charged and fired, should be placed in a box from. which the air was excluded, and continue to burn. The exclusion of the air would extinguish the fire in a moment, because the presence of atmospheric air or oxygen is as essential to combustion as to respiration..The material of which it was made was whitewood, therefo:: o -ot capable of retaining penetrating liquids. The varnish put upoL:ie Zamphene chamber would not render it impervious, because both camphene and turpentine are powerful solvents. If varnish or paint becomes hardened) this material is invariably used to convert it into a liquid state. It has also been shown as a fact, that one of these chambers is not capable of retaining it: that in the short space of four to six hours the block will absorb the camphene. It is thus demonstrat-,ed as a matter of fact and science, that the story of the confessions as to the origin of the fire, and the means by which it is said to have been communicated, is a mere fabrication. Milton describes the mother of our race sleeping in the bower of Eden, and Satan "Squat like a toad at the ear of Eve, Assaying by his devilish art to reach The organs of her fancy, and with them forge Illusions as he list. imr, thus intent, Ithuriel with his spear Touched lightly; for no falsehood can endure Touch of celestial temper, but returns Of force to its own likeness; up he starts Discovered and surprised"-Satan in "propria persona." As Ithurier's spear of truth restored the devil from the shape of a "toad, so the truth of science has divested these matches of the false and destructive character with which they have been invested, whispering conspiracy and arson in the ear of the sleeeping agents of this corporation, and has revealed the hand and philosophic mind of Phelps. If the evidence of confessions is true in all its details, you will find that it all speaks to that count of the indictment that describes the offence to be advising and procuring Gay to commit the overt and incendiary act, which makes them accessory thereto before the fact. He was indicted, but before a jury was empannelled, died in jail, and his guilt has never been established in the only legal manner it could be ly.a trial and verdict against him. I respectfully submit to your hon 117 or, as a legal proposition, that no tribunal has power, under the laws of. this State, to try those who are said to have incited this act, under thepresent form of the indictment, until he has been tried. The count to which the evidence is directed, does not state the hiring and procurement as a substantive act, but simply as accessorial. Wherefore, the very thing they are charged with having procured, must be manifested to be true in a legal manner, before they can be put upon a defence. The statute of this State has changed the rule of the common law, by enacting that accessories before the fact to felony, may be indicted and convicted together with the principal, or after his conviction, or may be indicted and convicted of a substantive' felony. This gives thepublic prosecutor an election of either one of three modes of trials First he may do it jointly with the principal; second, after the prinerpal shall have been convicted, either of which'could be done at the common law; third, he may charge the act as a substantive or independent offence. This is authorized by the statute alone, not having been the practice before it was enacted. The law is plain, and leaves. no room for debate or construction. It is a transcript of an English, statute, passed in the seventh year of the reign of George IV, under' which it has been decided that if an accessory be indicted alone, before the conviction of the principal, the offence must be stated in sub — stantive language, and not made dependant. 1. Russell on Crimes,' 40; Reg vs. Ashmall, 9 Carr and Payne, 287-38 E. C. 97; R. S. of Michigan, 1846. In the present case the prisoners are jointly mdieted with the principal, and charged with simple accessorial acts in the usual common law form and not substantively. Arch.P1. 649. The indictment was- drawn after the first of the three enumerated methods of trial, and the decease of the principal, renders it impossible to carry it forward to a verdict in that manner. The crime of Arson in the burning of the Detroit depot, charged Upon these defendants, is the result of a conspiracy between Phelps, Lake and Wescott. These three witnesses were in combination to accomplish one single common purpose-the conviction of these defendants. Each one of them has sworn upon this trial, that he had been laboring, watching, lying and deceiving, in furtherance of that object. They have themselves' established the fact, that there was a community of design, feeling and labor between them. There will be this difference only between the counsel for the prosecution and myself. They will labor to convince you that the end these witnesses sought, and now seek toaccomplish, was lawful; and that, therefore, the means employed by them are excusable; in other words, that the end justifies the means'. We believe that their own conduct, their unnatural and inconsistenit statements alone, show that both were wicked and corrupt. If the material facts sworn to by them are untrue, it makes the purpose for which they were associated, guilty and unlawful. The conduct of Phelps as to the admissions which, he says, were made to him by Gay, is not consistent with his truth and honesty. If such a confession was made in the month of November, while the smoke was yet ascending from the ruins of the depot, to an honest man, he would not have withheld the fact from those who were deeply interested in knowing iL 118 If true, would Le not have proceeded at once to some officer of the company and disclosed it? The time he caused this intelligence to be communicated to an agent, is not known; but from his own confession instead of directly approaching the Superintendant, he told his story to Mr. Bates, truly believing that it would be reported by him to those whose confidence he desired to gain. Such a course is never adopted as a medium of conveying truth; but it is the indirect and artful device ~of a deceiver, who endeavors to impose upon another as true, that which is false. Phelps and Lake both say that they saw Gay on the 24th of February at his house, and that he exhibited to them a match in his chamber, which was represented to be like the one used in burn. ing the old depot, and stated the amount he had received. Tie same thing was again seen on the evening of the 9th of April. If this transaction is divested of the explanation with which Phelps has surrounded it, Gay does not appear to be ready or willing to exhibit it. Mr. Van Arman was unable to get a sight of it! on the two first occasions that the went to his house, and on the evening of the 9th, not until after a Aong private conversation had been held between Phelps and Gay,,and not until after they'had been above stairs in a bed-room, to make arrangements for its exhibition. He is therefore shown to have been careful, and extremely reluctant to allow the man so highly recommended to him, to see or know anything that could, by possibility, be used to his injury. Why was he so much more reserved and cautious in the presence of this man, who had been so frank with him as to have tendered to him a profitable partnership, if a few days prior to 4hat he had not only shown the same thing without solicitation to Lake, the first time he had ever seen him, but related all that he is represented to have said in his hearing? There is but one reasonable ex_planation of itj which is, that P. had himself originated the scheme of burning the depot at Niles, and also the new one in this city, when it should be rebuilt, and represented to Gay that he had friends at Michigan Centre who would pay them for doing it. Keeping his real intentions in the dark, he did not advise him that it was a wicked plan elaborated by himself, upon which he was to predicate a false charge upon those pretended friends. Having thus deluded his dupe, and induced him to join in the commission of the contemplated arsons, and either to fire the new depot at Detroit, or aid him in doing it, he or his associate, must have conveyed the match to the house, not in the month of February, but in the first part of April. This was after he had borrowed the augers and employed Lake —after they were found shut up in the log-house in Sylvan, upon the day that Metcalf found the door fastened-after Cowden found one of them shut up in the same house, surruunded with augers, saws, timbers, shavings and pieces of board. One or both of them carried the work of their own hands to Detroit, after they had succeeded in deceiving Gay, by assuring him that if he would become their accomplice, he would be paid such a sum as they may have fixed upon. Then it was that they called upon Van Arman and Clark to go there with them as friends and see what they had seen. On the evening of the Ist day of April, one of these gentlemen, the leading counsel upon the other side of this case, disguiS-,ed, possessed of the means of deception, went with Phelps, and was 119 introduced by him as his friend. But he saw not that which had been promised he should see. They went a second time, upon the evening of the 8th, and Phelps talked privately, long and earnestly with Gay; but he was obstinate; he could not be persuaded to permit the evidence of the contemplated crime to be seen in his house, even by the friend of his associate. They went again upon the evening of the 9th, and exhibited what they termed their well executed counterfeit money.Another private interview took place, and to some questions put by Phelps to Gay, to use the language of Van Arman, he replied, "You don't suppose I am such a d-d fool as to place myself in any man's hands, do you?" this is the language of the man who, the first time he met this reformed felon, lately from the Penitentiary, in a public saloon, placed himself in his power by reciting the details of a crime of which he had never been suspected. And again upon the 24th of February, upon meeting Lake, the first time he ever saw him, as soon as he was introduced to him, placed himself in, his hands by repeating the same to him. That part of the conversation at the house ab out burning depots, which was heard by Clark and Van Arman, is perfectly consonant with the theory of the plan arranged by Phelps. If it be true that he originated the scheme of charging fictitious crimes upon enemies for the benefit of friends, and if those to which he has testified against the defendants in this cause are mere fictions, when in the presence of those he wished to convince they were really contemplated, he would of course take occasion to speak of and about them, in talking with the man he had fixed upon to apply the torch at Detroit. The extent of his plan had been settled; he had already advised his employers that the defendants aimed at the destruction of their buildings at Niles and Detroit, if possible, at the same time. Hence the necessity for him to deceive some one at one of the places into the apparent relation of an accomplice. This, being accomplished, created ths necessity for still further deception upon the already deluded one. His conspiracy could not be executed until there was some confirmation of his strange and incredible developments. Therein lies the secret of the visit to Gay's house on the 1st, the 8th and the 9th of April. If Gay had been guilty, he never would have been arrested upon this indictment, but he would have beeen used as a witness against these defendants. But Phelps, knowing better than all others the real truth, could find no safety unless he was jointly indicted with thope who are now upon trial. He swears that Fitch stated to him that he had furnished and de. livered, and Gay that he had received two matches. How did they disappear from Gay's house? lie had never used one of them. Why were they not found upon his arrest on the 19th of April? But ten days prior to that on the evening of the 9th, it had been seen in a bandbox, carefully packed in shavings, indicating that it had thus,been conveyed there. When and by whom was it removed? Mr. Titus, who swears that he arrested Gay at his own house, says that his premises were searched at that time, and again subsequently on the same day. But it could not be found. This was on Saturday. Phelps was not there. On the succeeding Monday they renewed the search 120 with his assistance, and without success. It was found under a plank sidewalk in one of the public streets of the city, under circumstances showing that it could not have been there many hours. It was as free from filth as when first finished. It has no stain or the appearance of having been wet. Gay could not have placed it there from any fear of its being discovered, for if he had received any intimation of impending danger, he would have removed it to some more distant and secure place. Phelps foresaw this seeming impropriety, and that it was importantthata thing so strongly corroborative should not be wanting in the proof. He put it there. He that hides can find. To raise a presumption that it was a proper place, one likely to be selected in preference to any other, he has sworn that Gay told him that he could hide under his side-walk all that ten men could steal. But the counsel attempt to explain the fruitless search by proving that after Gay was taken into custody, he talked privately with his wife. If she received any directions from him to dispose of such a thing, think you she would have put it in the street or in the fire?. Where were the bandbox and the shavings that were seen on the evening of the 9th? Not at Gay's, because they were not found. When and by whom were they taken from there? Not by Phelps, because his memory is treacherous upon the subject. When were they carried there, and by whom? Not at the same time on the evening of the 9th, that the two corroborating witnesses went with him; because they say that Phelps did not, and could not have carried them without their knowledge. It was no part of his scheme that they should know it. Lake was there that same evening. Did he carry the bandbox and its contents there? Not to the knowledge of the two gentlemen referred to. But how should they know whether he carried them or not? He did not accompany them, either in going there or returning; therefore he might have carried them either before or after their arrival. Phelps went out of the house with Gay. It is certain that he went for or after something. They then went up stairs to a bed-room. From thence they came down stairs and separated. Phelps then invited his two friends to ascend the stairs with him, and they found a bandbox standing under a bed. They opened it and saw its contents, and were convinced that he had told them the truth. Soon after they left. But where was Lake? Not with them for they would have sworn so. Why did he remain? Not because he was a friend of the family,for he had never seen any one of his household before, and Gay but once. Phelps and Wescott have denied any acquaintance with each other, until the last part of the month of February. It is hardly possible: that they should both of them be engaged in the same pursuit, without, a mutual knowledge of the fact. They must have known each other,, for Wm. B. Laycock says that after they had retired at his house, MIrs-. Phelps asked her husband if he was going to see Fitch the next day, and if he could do as he had calculated to do; to which he replied, if Wescott proved true and would do as he had agreed, they would come a good drive. This was early in the month of January, and clearly shows that an agreement had been made between him and the person of whom they spoke. If his purpose was lawful, and if Fitch had al 121 ready placed himself in his power, why did he, when carried to his residence by Laycock, mak9 a false pretence of business? If Phelps and Wescott were already possessed, by the admissions of the defendants, of all they had done, why did Lake become connected with them? Not because his relations to the defendants would enable him to elicit any new facts from those who had confessed the burning of the depot to others, for they had already furnished sufficient ev. idence for their conviction, if it was true. Not because they suspected others to whose confidence they could not succeed, for Lake had no acquaintance with any of them, and was ignorant of the geography of the places were they lived. He was, therefore, not possessed of any facilities to approach any of the prisoners. He swears he was introduced to Fitch on the 25th of February, and wastold by him about Wescott's being there as a spy, and'that Goodwin had shown a letter from Brooks from which it was learned. If that statementwas made it was not founded upon truth, also that Dixon had asked him that day to talk. He inquired, "if it would be safe for him to remain there," and was informed "if his business was to buy wheat it would, but if he was a spy he had better leave." If any such statement was made it was not true, for Mr. Dixon has sworn to all that transpired during his stay at the Centre, and he makes no allusion to any such conversation. It therefore raises an issue of veracity between Phelps and Lake on the one side, and Goodwin and Dixon on the other. T-'e defendants said that the reason they did not burn the depots themselves was that they were too well known-they had rather hire it done. Where was it they were so well acquainted? Not at Detroit, for none of them had ever lived there. Not at Niles, for none of them are shown to have ever seen that place, or to have been acquainted with one of its citizens. Why did the defendants choose to fire the depot at Jackson, rather than pay for doing it? Phelps says, because it was so near their homes. They were not strangers in that vicinity, yet the reason assigned for hiring him was that they were too well known at a place they had never seen. These witnesses have not heeded the maxim of Seneca, that "The light stucco ofthe ovtside imposes upon few; Truth, on whatever side it is viewed, is always the same; Falsehood has no consistence: a lie is transparent; a little attention enables us to see ihrough it." There is another consideration that is conclusive evidence of their unlawful combination, which is, that Phelps and Lake made the matches.:This conclusion follows from the following facts: 1st. Because Phelps is the man who professes first to have seen them, and it is perfectly consistent with their character and conduct, that they should have made them. They had a motive much more likely to lead to their construction than any of those upon whom they charge their invention. By Phelps' own confession, he had a desire to "lay Fitch out." Revenge, the strongest passion of the heart when it rules, was his great and primary object-employment, and the hope of gaining five hundred dollars reward for each one he should implicate furnished a second motive. 2nd. All the extraneous facts and circumstances developed upon the trial, fortify this conclusion. Why did Phelps seek and employ Lake? 122 Not because they hated and despised each other. Entertaining inimi~cal feelings towards him, he would not seek his aid in a fair and honest enterprise; he would have sought the assistance of some one to corroborate him who was a friend, and in whom he had confidence. It was not because of any relations subsisting between Lake and the de. fendants, for to them he was an utter stranger. The object, then, must have been one resting in their own depraved purposes-one so corrupt that it made them forgetful of past injuries, in hopes of the reward that should be made more certain by their united efforts. 3rd. They are shown to have been possessed of angers corresponding in size with the holes in the match. The reason assigned for borrowing them, (to mend a buggy) was false; the largest one would never be used for such a purpose. 4th. Lake was found shut up in the house by Metcalf. There must have been some object in taking precautions to prevent intrusion. If engaged in an honest employment, he had nothing to fear from the unexpected visit of any person. In the month of March he was found in the same situation by Cowden, surrounded by all the evidence of a worker of wood-the same augers, or those of the same size, a saw, a plane, wood from the railroad, a basket filled with shavings, and pieces of board, spoke the employment in which he had been engaged. Having finished the matches, lie was engaged in writing the history of their future criminal agency. 5th. A piece of timber was found in the manger of the stable or hovel which bears marks indicating that it came from a cattle-guard in the railroad. This timber was placed there while Phelps lived upon the premises; because it could not have been put there after Metcalf moved on the farm, without leaving some trace of the fact, either by tracks about the stable or manger, or in the altered appearance of its contents; for the hay in the manger could not have been disturbed without removing the filth upon its surface. 6th.-Phelps was seen at the manger on the evening of the 10th of April. IHe was there for some purpose, which he has not attempted to explain. We can only determine his object by the traces he has left behind him. The hay was there properly; it was where it should be; but the block could only be there as the result of accident or design. It was not carried there by Metcalf, nor did he ever have any timber of that description on any part of his farm. No one has occupied the place since he left it in the first part of April, except the young man who has been sworn, and whose statement is conclusive of the fact that the timber must have been where it was found on the 2d day of July, before he moved into the house. 7th.-It is shown by all the testimony upon both sides, that white wood timber of suitable dimensions was upon the railroad near to his residence. No lumber or timber from which such matches could be fabricated, is shown to have been in market at any place adjacent to the residence of any of the defendants. The isolated position of his residence enabled him to construct them without danger of being surprised. Living as he was, in a community of farmers, his house some distance from others, secrecy was certain unless he was extremely careless. 123 8th.-They admit the possession of the match used at Niles, and fail to show that it was delivered to them by the persons from whom they profess to have received it. The haste with which the arson at that place was executed, which was at his own instance; the circuitous route taken by them in going from Sylvan to Michigan Centre; the presence of Corwin and Myers at Filley's in the evening, procured by him fraudulently; his errand to Cady's, which was a pretence and false token; he made no effort to accomplish the object for which he professes to have gone there. We are therefore at liberty to supply such design as legitimately flows from his conduct. Mr. Clark had determined to, bring him to the execution of his pretended agency for the defendants, and had apprised him that upon that day he would send a man to watch their movements in disguise. It therefore became necessary for him to get a match in some convenient place upon Filley's premises. Faulkner could not get admission at Fitch's residence; nor could Lake or Phelps. It would not answer to have the match deposited at Filley's house, unless some of the defendants could be induced to go there in the evening. Ience, Lake left the buggy a mile south of Leoni, went across the fields to a designated place where the road leading to Michigan Centre crosses the railroad, there to await the arrival of Phelps, he having gone to Leoni to arrange with such of the defendants as he could, to go to the Centre upon pretence of rolling ten pins. 10th.-Filley was not at home on their arrival at the Centre; therefore could not have been advised by Phelps of his intention to go to Niles. Not being advised of the fact, he could not have informed Fitch. Lake does not pretend that he saw the latter until evening.Filley could not have told Phelps to come upon the night of the 11th, and he would furnish him off to Niles. It is utterly impossible that Phelps and Filley should have seen each other upon that day, because the latter went with Allen and Kane immediately after noon upon a hunting excursion; and when they left, there were no strangers about the house, as they both testify. Phelps and Lake did not arrive at the Centre until after they had gone. It is not true, as stated by Phelps, that he did not get out of his buggy on that occasion; for Mrs. Toll swears that soon after he left Leoni, she went to the residence of Mr. Fitch, and upon her arrival;his horse was standing near the hotel, where it remained about half an hour, after which time he came out and drove away. Lake says that Filley was at home all the afternoon; that he went upon the pond fishing towards night with some men, to gtetthem out of the way. This furnishes another evidence that these matches were made by Phelps and Lake. The theory of the defence,is, that upon Filley's return with Kanc, just before evening, Lake, pretending that he had a bundle that he desired to put in a safe place, induced Filley to allow him to place it in the little room that has been:spoken of, and which was occupied for storing liquors and baggagethat the design contemplated that Filley should be the man who in the evening, after all the defendants whose attendance Phelps should be able to procure had assembled, should, at his request, to be made privately, open the door and remove this box, which' was enveloped in a handkerchief or cloth, and thus by discharging a duty common to a. 124 landlord, without suspecting the guilty intentions of his guests, furnish evidence to deprive him of his liberty. But Lake got more than he bargained for. Fillev left with the key in his pocket Lake followed him, and intimated a possibility that he might wish to leave, as the only possible pretence on which he could gain possession of the key. Why did this sick man, so debilitated that his associate was forced to leave him in one of Filley's beds, choose to defer this intimation, and instead of advising his intended victim at the house that he might wish to leave before his return, walk a distance of half a mile to the pond before doing it? There is but one apparent and logical reason for his so doing. He having failed to furnish any reason, it remains for us to give one that shall be fair, and rise legitimately from his acts. It could not have been from a desire to see the strangers who were hanging about there started upon their excursion beyond the prospect of their return; nor could it have been the want of and a, disposition to take exercise, for his ride from Sylvan had furnished too much of that, and he remained for rest. The only remaining conclusion is, that considerations of prudence or caution controlled him. It was important to the success of their plan, that he should have exclusive control of the key. If he had expressed his intention to leave, tp Filley at the house, some one of the family would have received it, and he would have been forced to apply, possibly to Mrs. Filley, to unlock the door and deliver his bundle, which would have proved a catastrophe; therefore, he wisely concluded to accompany Filley, and upon the point of his leaving with his fishing boat, he would be sure to get possession of the only remaining thing essential to his success. He knew that the room contained nothing so valuable as to create any objection to his having the means of access thereto. This conclusion is strengthened from the fact that from his own testimony he makes Filley lock the door, after the match was put in the room, and put the key in his pocket. No one, other than himself, besides Filley,Woodward and the boy, went to the pond, nor was any one found there to return; hencehe of all the persons present was the only one who went back to the tavern; therefore he must have carried the key* back with him. 11th.-Filley could not have placed the match where it was found in the evening at the time he is represented to have done so, because he was two or three miles from the place, in company with Allen and Kane. If he had been where it was possible for him to do so, it is improbable and utterly inconsistent to believe that he would have done it, for by so doing he would have increased the chances of detection to such a degree as to render it almost certain. At the barn from whence Lake says he removed it, it could have been delivered without the least danger of being observed by any one. The place to which he is said to have removed it, was sure to give the act of deliverance the utmost publicity; for you will bear in mind that it was a bar-room, open for the reception of whoever might choose to enter it It was the most public place or room in the village, frequented at all times by those who are not suspected of an association or sympathy with the defendants. Such an insane act would not make it possible merely, but almost certain that this terrible evidence of guilt would be seen 125 and noticed, as the proof shows it was. And herein lies the secret of Hay's being upon trial-whose only crime was the misfortune of re-'turning from an eastern tour, whither he had been on a visit to his friends, just in time to be present to witness the scene of that evening. They would not only be liable to be surprised by those who were accustomed to spend their evenings there, but by those of his own household. He is said by Lake to have brought the match in, and nailed it up in a box; in doing which he took the precaution to direct the members of his family to some part of the house from which they could not see it or them. How much more reasonable thathe should have done this at the barn, where he would have been removed not only beyond the presence of his family, but beyond the prospect of surprise from any one. There he might have made all necessary dispositions for its conveyance to the point of its destination, and from thence it could have been taken. No suggestion was made that it should be carried into the house by those who were to use it, and the conduct of Filley, as it has been represented, in seeking to avoid the presence of the inmates of his house, shows that he had a desire to keep it from their knowledge. But the means adopted would have the tendency to awaken suspicion, or at least curiosity, to such an extent as would have directed watchful eyes to this little room. The space intervening between the house and the barn is not to exceed one hundred feet; the latter is about an equal distance from the street; therefore he could have gained nothing either in time or security. If it is true that he knew what was to be done that evening, why was he absent? If he was so deeply interested in the destruction of the property of therailroad, as to have importuned Phelps so frequently to fire the Niles depot, and urged him to be expeditious, it can hardly be believed that upon this time of all times, when definite measures were to be adopted, any consideration would lead him to be gone, unless something unforeseen and. unsuspected had intervened to render his absence necessary to avoid detection. Did any such occurrence take place?'Lake says that considerations of prudence and caution were the occasion of his leaving,with a view of removing persons from whose eyes they wished to cover that which was to be enacted. In this he is contradicted by the person who says that he alone accompanied Filley. This person was not at or near the tavern upon that day; consequently such a motive could not have existed as to him.Who suggested this course? Phelps says that he was informed by Fitch, that it was at his instance. This could not have been true, be. cause Lake swears that Filley was constantly present about his own house during the whole afternoon, and that he did not see the man whose name is invoked to give credit to this lie, until he entered the bar-room in the evening. He was absent during the whole day, as shown by Amanda, his adopted daughter; and after his return, he left his house but once, near nine o'clock in the evening, and then for the space of about ten minutes. He was attracted to the taern by an unusual noise and commotion. It is tiue that this reason emanates from the evidence of the defence; and it is equally true that it is not a fabrication arising from a necessity to supply a lawful purpose in going there; because neither of the two witnessss for the prosecution 126 who testify to this transaction pretend to have seen him upon that day, or to have communicated to him in person the fact that they would be there at that time for any purpose, or that they had in any manner notified him of such a design; so that his presence upon that occasion was purely accidental, and not in pursuance of any pre-existing appointment. 12th. —lf Fitch was the principal instigator of the scheme, why was no effort made by Phelps or his satellite to see him on their arrival at the Centre upon that day? It does not appear that they made even an inquiry for him. Why was the possession of the twin oxen, a condition which had always heretofore been a sine qui non with him, forgotten by Phelps at that time? When and where did he receive directions for charging and regulating the period of time the match should burn? Not at the time he received it, for Mr. Faulkner would atleast have heard some word that would indicate the. fact. Not at any other interview which he had with them, for he has stated all that transpired between them in any and all prior conversations. Phelps and Lake are convicted of falsehood as to the route they pretend to have traveled in going from Sylvan to Michigan Centre on the 11th of April, by six witnesses, who have declared that Phelps drove into the village of Leoni from the south, not far from the hour of ten o'clock on that, day. It is not possible that they should be mistaken as to the date, because they all refer to the circumstance of a litigated suit; and if the time was not positively remembered and correctly stated the docket of the proceedings would have been here to correct the date. They are shown to have equally misrepresented the truth, in denying that they separated before their arrival at the Centre, for Lake was seen by three persons to leave the buggy, taking therefrom a bundle wrapped in red cloth or handkerchief, and cross the field with it under his arm to a road not much frequented by travelers, but leading to the place where the last crowning act of the fraud and deception was to be enacted in the evening. Before he had advanced half a mile, he was met by a farmer of that neighborhood; and was seen by him to change his bundle from one arm to the other. Its dimensions and shape was seen by this man and remembered. He fixes the date from the same circumstance. So that the evidence of those who saw one of them at Leoni, and of those who saw the other in the field and road, concurs to show that two men must have separated near Beeman's house. The only attempt that has been made to controvert the truth of these witnesses, was first, by recalling the men whom it convicted of perjury. They would of course deny the occurrence, because they had before sworn that they both proceeded by the most'direct road without leaving their buggy. Second, by charging ten witnesses with deliberate perjury, and inviting this jury to view the locality, promising them that they should find confirmation of the charge. You saw what must have been apparent to any man who had eyes, that at the distance of twenty rods, upon a level surface, you could see that which had been described. You cannot find a sportsman who could not see a red or white object three inches square, at the distance of forty 127 rods, so plainly as to be able to send a rifle ball to its centre. It must have been Lake who was seen on that occasion. If it had been some other person, the length of time that has intervened since the proof was made, would have enabled some one of the thousand agents who have been engaged bv the Railroad Company to discover the fact and the person. They admit that they passed the premises at the time they were actually seen there, but represent that they proceeded together without stopping, traveling upon the same road upon which the footman was met. If it be true, where could[ they have concealed themselves, their horse and buggy, to avoid meeting Taylor? It is not possible that they could have passed on the road near the saw mill without being seen by him. Their statements made when first and last examined, are in plain contradiction. Lake distinctly and repeatedly answered at first, that they did not pass a mill, and that they crossed the railroad at least twice in going from Cady's, and arrived at the Centre upon the north side-of it. This was before the defence was made. When recalled, he swears as distinctly that they did pass a saw mill; that they arrived upon the south side, and did not cross the railroad until they were op-. posite the hotel. Phelps was equally distinct in his recollection that. they went by the most direct road. But when driven to expedients by those who saw and knew him, he has changed his course to the most indirect path that could have been selected. Why should they have selected their way, leading them a part of the distance over rough and unfrequented wagon roads? If Lake; was as feeble and debilitated as they say he was, some strong reason must have existed to control them in traveling through such places as would greatly add to his fatigue, increase the distance, and require a longer space of time, and which could have been avoided by going upon a straight public highway. It could not have been the result of accident, for one of them was familiar with the localities and the avenues leading to them. They have not supplied any reason. Their motive therefore must have been dishonest; and it can only be reac hed as a deduction from the concomitant facts and circumstances; from which it is evident that Lake did leave his associate, as we affirm-that the latter might ascertain whether he could induce any of his intended victims, by falsehood and deceit, to go where Faulkner was to be in the evening, that he might witness a meeting in secret conclave, assembled for the delivery of a fire machine. The bundle was not deposited in the baggageroom until after they had met and held a conference of half an hour at. the tavern, in the absence of its owner. Thus the whole history of the match that was used at Niles shows the improbability of its having been made by the defendants to whom it is attributed; and if not made by them, it must have been done by one or both of the witnesses who used it. If the match was the invention of Lake and Phelps, it would be necessary to the success of their plan that it should be conveyed and deposited upon the premises of such one of the defendants as they had made the principal instigator and procurer of the contemplated arson. This they could not accomplish, because the relation of accomplice did not exist between him 128 and them. If it had, how easy and how much more likely, in their desire to lay him out, that they should have gone to his barn, half a mile from his residence, standing remote from the public highway, and equally so from any house. It had two open sheds, not secured by lock, which were accessible to them. There they might have secreted their drayman from Marshall, beyond the possibility of his presence being known, where he could have heard every thing that was said and seen every thing that was done. Moreover, the barn is the place where it is said by Phelps that Fitch kept his spurious coin and the dyes for making it. If this be true, is it not probable that he would have kept his blocks, machines and combustible materials in the same place, or in one furnishing equal security? They could not place it in or near the dwelling of the principal object of their vengeance, in the absence of such relations of friendship as would exist between men laboring for the commission of the same offence. But if the feelings of fiiendship arising from criminal associations had existed, they could and would have done so; for the defendants who are claimed to have been in the secret would have chosen such a place on account of the privacy it promised. But they regarded each other with feelings of enmity, and Phelps could not even gain admission to his fireside.Therefore the hotel, a place open to every one, no matter how pure, or how black and depraved his character may be, was the only place left where they could practice such a deception. The only pretext upon which they could procure the presence of any one of these defendants, was that adopted by Phelps, of inducing them to go there for recreation in the ball alley, himself defraying the expenses incident thereto. Having invited them there for such a purpose, he could not well lead them to a barn or to any place other than the tavern and alley; but if they had meditated the destruction of the depot at Niles, believing him to be theircoadjutor, they would have sooner gone to the field or woods, or to a barn or hovel. Why did Phelps attempt to prevent those who were in the toom from leaving immediately after Corwin went out witl the box? If what he had said was true, so far from attempting to prevent others from seeing or noticing what was carried to his buggy, he would rather have connived at the gratification of their curiosity. But if one of them furnished the key to Corwin, as they must have done, it was undoubtedly represented to him that they wished to keep the box from the sight of those who were there, and gave a false account of its contents. Hence, to keep up the deception, and elude any suspicions that might otherwise arise with Corwin, he made a sham resistance to the egress of others. Why should Corwin and Myers have gone to the Centre for the purpose of aiding in fitting them out, when if they are to be believed, everything had been made ready? They could have not done anything for there was nothing to be done. The payment of money he says was refused, upon the admitted reason that there had already been a certain amount advanced, and that Fitch wouli pay no more unless they were successful in accomplishing the destruction of the building. A certain amount is alleged to have been paid on the 4th of March-some eight or ten dollars to Lake, and a small amount to himself. But when the former relates to the 129 occurrence of that day, swearing merely from his recollections of the contents of that diary, which was the conjoint production of both of them, he absolutely denies that he had received any such sum of money at that or any other time. It is hard to remember that which never had any existence, although it may have been committed to writing. The manner in which this history of posthumous events and crimes was written, is not calculated to impress his mind with all the incidents of which it was composed. When they were both present, the elder and the master villain made the record; when separated, each for himself noted the fact that he was at a given place, at a given time, with some one or two of the defendants, and with so much of truth, blended as much of fiction as their own corrupt and depraved minds could invent. At their next meeting, Phelps transcribed it so as to constitute a continuous story, and from, this diary of falsehood they both pretend to swear. Phelps retained the manuscript of their joint narrative, when his pupil should have been engaged in its study. He says that Fitch advised them " to take the box in his buggy, go back to Grass Lake, one stay there, the other go farther east and get on the morning train at different places.", Is this true? If so, it presents a strange coincidence; that was the point of departure fixed upon by him and Mr. Clark. It is singular indeed, that he should be directed by the man who he was deceiving, to the very spot to which he was obliged to return fro'm a necessity created by his own act. He had borrowed a horse at that place, and of course, was obliged to return it. He also says he had a private conversation with Fitch in the evening, in which he makes the latter to say that he had been informed by Filley that he, Phelpswas going to Niles that night and states to him that he had a match all ready for him, thatit was made upon the same principle as the one he hadfurnished Gay, and it would not fail, as they had tried it several times. This was said aside from the others. Is it possible that he should have been taken aside by Mr. Fitch without the knowledge of their own witness who was there to see and hear-and is it reasonable to believe that a man of his intelligence would go to such a place to take part in the incipient steps of a crime so fearful in its probable consequences? Would not the presence of a stranger create alarm, and suggest the propriety of postponing the delivery' of the box until the stranger should have retired to his lodgings? Prudence certainly would have dictated that an act so momentous, so fraught with danger, should have been delayed until all had absented themselves from the room except thosewhe were in the secret. And if the defendants in this cause who were there upon:that occasion were in guilty league with these travelling witnesses, such precipitation, such foolishness, such madness would not have characterized their conduct. These defendants would not have hazarded the almost certain prospect of detection, by sending them with this instrument uncharged, without the combustible materials essential for its use, with instructions to purchase them in the very village in which they were to, burn the building. It was not contemplated that that they should stop for this purpose at any place on their route; therefore Niles could have been the only place where it was designed that they should complete their arrangements. Another evidence that they were made by these witnesses, is, that it 9*w 130 could not have been done by any of the defendants. If it had beendone by any of them it would have been shown where they got the timber, where they procured the augurs and other implements with which to make them. If Mr. Fitch had'been possessed of the requisite tools, such as augur, saw and shave, if he had whitewood of suitable dimensions upon Jbis premises, young Wells, who worked for him, must have, known the fact and would have sworn to it. If Filley had owned or been possessed df the requisite tools and material, Woliver, who swearsthat he worked for him through the whole of last summer and fall, would have proved the fact.. If any timber had been used in the construction of his ball alley, from which they could have been made, the carpenters who erected it, and who have been sworn, would have known it. If neither of them owned the necessary tools, and borrowed them for the occasion, the person from whom they were procured, could and would have been a witness to the fact. If any one of them purchased camphene or any material at Jackson, it would be remembered by the merchant of whom they were procured. If one of them had purchased camphene in Detroit in February, he could not have carried it to his house without its being observed, or at least it would have been proved that he had a trunk or box within which it might have been concealed. If they did make them, how does it happen that Phelps, having their confidence, failed to elicit the time and? place of their being made and by whom? If any one of them had& purchased whitewood timber of suitable dimensions for their construction why has it not been proved'? Not because of any lack of perseverance on the part of those who were watching their move ments. Nocattle-guards in the vicinity where the defendants lived were made of whitewood; otherwise the fact would have been shown. None of them, were ever surprised or seen shut up, surrounded with tools, timber,. boards, and shavings. None of them was ever known to have traveled to Detroit upon'the cars repeatedly, or to have sought private interviews with Gay in the assumed or real character of a villain. Who of'all these defendants, is acquainted with the subtle laws of chemistry?Where did any one of them learn to combine combustible and and explosive substances together with such mathemetical accuracy that the combination should burn ten minutes or forty-eight hours. If the most skillful chemist in this State has been unable to make the invention of' Phelps subserve any purpose in communicating fire, and if, by exhausting his scientific skill, he could only make it burn by employing a solution of saltpetre or gunpowder, and if an hour and ten minutes was the greatest length of time he could attain in continuing the fire, what kind of science must it be that continued the fire in Gay's match for six hours' In what university may it be learned? If Dr. Desnoyer' could not produce a flame and cause the fire to communicate to dry pine shavings without the aid of lucifer matches, so placed that the sparks produced from the burning of the cotton, saturated with a solution of salt petre, should ignite them, how could it be possible that they ignorant as they are of science, should be more successful? Phelps is not only impeached by proof that the interviews in which he says the body of the crime was admitted never occurred, and that. most of the conversations that he has sworn to, did not and could not. 131 have taken place, by contradictions as to threats which he has denied, and as to the intimacy and friendship which he has professed, but there can be no presumption that he was ever reputed or believed to be capable of speaking the truth, by those who have ever known him. Such an overwhelming impeachment of his general character as has been made, was never equaled. Eighty-six respectable men, all living within an average distance of 2 and 1-3miles of his residence since he left the state prison, have sworn to his infamous character and that he was not to be credited' upon oath. Some of them when asked upon the cross examination, have referred to time and parties against whom he had sworn false to their own knowledge. This is not all. Eight gentlemen who were connected with the police or contractors at the prison, have sworn that his character for truth was bad as a convict when in the Penitentiary. Suchis the reputation he has earned for himself, an attempt has been made to sustain him by countervailing evidence. Scarcely one of the witnesses who have been called for that purpose, knHaew anything of the opinions of his neighbors. The small numbier who thought they could believe him, because they were acquainted'to some extent in his community and had not heardi evil spoken of him, when naming the persons with whom they had an. acquaintance, and from whose silence they drew their conclusion, mentioned the very men who had solemnly declared to you that they never believed in his veracity, and that it was reputed to be' bad. So that) they judged from false premises, and their opinion is of no value in estimating his truthfulness. Most of them however lived remote from him, and therefore might well say that so far as they knew what his neighbors said of him, they would not discredit him. He- might have called a thousand people from Illinois who could have sworn in truth that they knew nothing against him in the community where he lived. It is a r.ere evasion of the rule of law. When eighty-six men within a circle of three or four miles, in a community of farmers, all concur in saying that the character of one who lives in their midst is bad it cannot be otherwise. It was announced in advance, that Phelps would be so strongly corroborated by other witnesses of fair fame, that, although his evidence should: be withdrawn from the case, its strength would not be materially impaired. What constitutes a corroboration of tlat which has been. sworn to by a witness? It is proof by another of some of the same facts that have been detailed, or of circumstances, the existence of which caa only be consistent or reasonable upon the hypothesis that the principal narrative be true. Any fact or circumstance that may be true, and the main or principalstory which it is proposed to support be false, without any apparent collision, contradiction, or inconsistency, does not and cannot strengthen it; and it is not therefore corroborative. Is the fact that Phelps came to the city of Detroit the next day after one of these prisoners arrived there, inconsistent with the falsehood of the story that he has told, about an arrangement between them by which he was to go there to assist in devising some scheme to dispose of three young men whose discretion and fidelity was doubted? Does not the fact of his going to Detroit upon a subsequent day and alone, tend to discredit what he has said of aprior appointment to accompany Fitch for 132 such a purpose? May he not have seen the object of his hatred upon fbe ars, or learned that he had gone there, and followed him to throw Iimself in his presence, for the very purpose of creating an appearance of intimacy? If he was here upon his false and deceitful promise to assist in getting these young men out of the way, by laying the foundation upon which to charge them with fictitious crimes, why did he, on the next morning after his arrival in the city, leave for Oakland C., and not to return till near evening? When and where did he bold any conversation or advise with Fitch as to the means to be adopted to close the mouths of the witnesses so much dreaded' Not at the trunk table on his arrival, because Mr. Holden saw and talked with Fitch at the hotel immediately after the cars arrived. Not on the iext.day,!or he was in Oakland County, and Fitch was with Jones all that day, and with Brown at the cotillion party in the evening; not on Friday, because Phelps left the city on the morning of that day for *home. ISthis the way in which he succeeded to the confidence of this party, by false tokens, deceit, and officious sympathy and assistance! is it sufficient to prevent his relatiqn of confessions made at that time from falling, that some one swore that he saw him shake hands with _litch in the city? Second, he went to Lansing on the:22d of February, ostensibly to procure the passage of a law for his relief, by appropriating moneys tocompensate him for what he termed his false and wrongful imprisament in the penitentiary. To carry the deception out, he says he ianduced one of lthe northern members to ask leave to introduce such a bill, and caused htle journals containing the notice to be mailed to and circulated among these prisoners. What was he to accomplish by creatingan impression that he had a prospect of remuneration for his time w^-hile in prison? Did he think that it would commend him to the coni'denae of those whose ruin he was then seeking to accomplish? If it be true, that negotialions were pending between-him' and the prisoners, for burning,the Niles depot, why should he resort to such a foolish and shallow expedient to blind them as to the real purpose of his visit to Lansing? He swears that he wasinformed by Farnham that Fitch had lgne there and desired him to be ready togo to Niles on his return.Hedoes not pretend that he had made any definite arrangements at'thattfime, but says that he had not concluded to accept the proposition,.;ak'had not given assurances that he would do so. lfhis object was to impose upon and deceive them as to the real purpose of his going there, why did he notadopt the more plausible pretext of a desire to see Fitch -and closethe arrangement with him? If it be true that such a proposition had been made to him,why should he attempt to invest his mission with a lse motive so simple and ridiculous as to be incapable of misleading any one, no matter how ignorant? Is the bar of the house of representatives in the midst of a session, when all the members were present, uch.a place as a man of common prudence would attempt to hire another to commit an arson? Is it a place where such a clime would be talked about for half an hour? or would not men who meditated such an act withdraw from the presence of others when discussing and settling its details and the manner of its execution, to some place where cey would be unobserved, or at least to some place that would give as 133 ~urance of secrecy to their interview? He denies that he went ther for the purpose of seeing one of the defendants, by saying that his fee al object was to see Mr. Clark the man who had employed him to sup — ply evidence for the conviction of the prisoners. Had any exigency occurred that rendered such a meeting necessary; oi was it for the purpose of approaching and forcing such an ordinary interchange of civilities between himself and one of the parties against whom he was, to make evidence, as could not be declined without rudeness; so that in the day of trial and peril he could stand corroborated by proof that he was seen in the legislative hall in familiar and friendly intercourse with Fitch. It is perfectly consistent and reasonable that what he has; stated as having been said to him should be false, and that Clark should have seen him sitting by the side of Mr Fitch and occasionally speaking to him for the space'of half an hour or longer. It is also perfectly consistent and reasonable, if Phelps was fabricating his proof tha uponlearning that the person for whose conviction he was most anxious, was in attendance upon the legislature, he should follow him in. to thehouse, approach and speak to him in the presence of his er-poioyer, who was there in discharge of his duties as a member from -one of the counties of this State. -But it is utterly inconststent and unreasonable, if that party had solicited him to engage in a conspiracy to reduce/ the edifices of the roilroad to ruins; that he should' have talked with him, or that he should have ever done anything from which an acquaintance could be inferred, at such a place where they would be seen and attract the notice of that flonorable Member, who was then as he has since been known byhim, to be in the servicet of the company. It is useless to pursue this circumstance any further, because it has no connection with, nor can it impart any additional strength to the truth' of that which is alleged against the prisoners inh this indictment. The third and last incident in this strange and anomalous systemaof sustaining the truth of his evidence, occurred at the concluding farce that is said to have' closed the compact between him and three of these defendants, on the evening of the 11th of April, at Filley'sbarroom. A drayman from Marshall was disguised as a wood-chopper in pursuit-of labor. He was sent there with instructions to listen look and remember. What did he see? He saw a door opened, and a boxtaken and carried out of the room into Phelp's buggy by Corwin. Who furnished him the key? That was not seen by the corroborator. From whence did Corwin come? From the street. Who led him to the street? Phelps. Who directed him to the room containing the box? That was not heard by the drayman. Who took precaution to prevent those who were in the room from passing out to see-the box? The drayman says that Phelps held the door. Why did he do this? Was it because he wanted the strangers to see every thing that was done? or was it because he had requested Corwin^ to take the key and remove the box, concealing it under his coat, representing that he did not wish to have it seen by the stranger, and feared that unless he prevented the egress of those who were in the room, his fraud would be suspected and lead to his detection? Ile is sustained by the concurring statement of this envoy extraordinaryy 134 simply asto the fact that the box was taken from the baggage and liquor room and put into the buggy, and as to the fact of the accidental presence of Fitch in the room for a few moments, and two others who were thefe through the false, deceitful and urgent solicitation of himself. What was said or done by either of the three parties to this indictment, who were there on that evening, and to which Faulkner has sworn, that will give credit to what Phelps swears occurred? He heard nothing said about burning the Niles depot; he heard nothing:said about any agreement to pay money or to deliver property; he heard nothing that would indicate that an arrangement which had,been long pending between accomplic'es was then concluded. It is -indeed true, that he thinks he heard a remark made by the man whom they called Captain Fitch, "I shall be flush when you get back from Niles," and that he saw the same man standing in the street on the opposite side of the buggy, when the box was put into it; and that near Jacksonearly the next morning he saw Hay on horseback in his pursuit. Fear of personal violence seems to have occupied his thoughts mole than the recollection of that which he had been sent to see and hear. But he is mistaken in his memory of having seen the person who he thinks he saw near the buggy; for he had long before gone to his house. He is moreover mistaken in his belief that he was pursued, as is manifest by direct and unmistakable evidence showing that whenFitch left the bar-room he went directly and immediately to his residence, and did not again leave it that evening, and that {the person he supposed to be pursuing him, from whom he apprehended violence, was quietly sleeping in his bed at the distance of four imiles from him. He was a perfect stranger to all those whom he saw that evening; therefore it is hardly possible that he should be able to attribute the little he heard said to the person who uttered it in every instance. It is quite as probable, yea more so, that Phelps was the man who spoke of being flush when he returned front Niles, as that it was said by any one; for he had been relating the story of his settlement with the State officers, by which he. pretended that he had compromised his claim for false imprisonment for two or three thousand dollars. Faulkner was deceived, as it was intended by Phelps that he should be. It was necessary to the success of the meditated fraud *that he should see what others saw, and no more. It was necessary that he should not hear the lying story that was told to Corwin by Phelps, as a pretext upon which to induce him to take the key and remove his box from the room, thus to furnish an act for Faulkner to witness; wherefore it was that he led the way out of the room into the street. Is all that has been sworn to by the man in disguise, or any part of it, inconsistent with the fact that none of these prisoners knew what was contained in the boxt On the contrary, is it not perfectly in keeping with the conduct of Phelps and Lake, in the fabrication of the entire scheme of the arson at Niles? What possible connection can the occurrences of that evening have with the crime charged in,his indictment? They took place about five months after the act for which the prisoners are upon trial, and were searate and distinct from that, and had reference to an offence in a different part of the State and in another jurisdiction, to be accomplished by another person. 135 Their manifestation by proof has no tendency to corroborate the evidence of any witness asto what wa done by Gay in the city of Detroit, in November last, or to remove any doubts as to the truth of the -admissions that have been sworn to. If it was true that the burning of the depot at Niles had been proposed to Phelps by the prisoners, and the instrument furnished to hiimby them, it would not add to the evidence as to the body of the -crime at Detroit. The only legitimate effect its proof could have, if proved by other witnesses, would be a simple corroboration of his statement that he succeeded to their confidence through such negotiations. If, however, the facts or circumstances to which a witness who is called to support the evidence of another testifies, are such as may have been fabricated for such a purpose, they must fail to accomplish the -object. The question then recurs, first, whether there was a necessity to prove an apparent intimacy between him and the defendants. It would be, an unusual occurrence for one man to relate to another with whom he was unacquainted and with whom he did not associate, the fact that he had committed a murder, a larceny, or robbery, of which the had never been suspected. Phelps has had too much experience in criminal proceedings, and has been too long associated with men of vicious habits, not to know that friendship must exist before he could become a confidant. Hence it was that he has sought, followed and intruded upon Mr., Fitch upon two occasions wheen he has been from home in public places. If he has not done so more than twice, it is because, with all his watchfulness, his zeal and eagerness to precipitate his destruction, and wither the bright prospects,, joys and hopes that surrounded his home, he has been unable to find the occasion and the opportunity. If he has never been seen with a smile upon his face (unparalleled except by Dickens' very "Umble" Uriah Heep) shaking hands with any other of the prisoners at Detroit, or in a Legislative hall, it is because they had never been there since he conceived his design. A casual meeting and momentary salutation by taking a hand that is proffered and forced upon you, is not the cordial greeting that betokens friendship. Where that exists, the hospitalities of the fireside and the table are bestowed and received. Intimacy begets cordiality, and is not driven to a public assembly for proof of its existence. Such is the nature of the corroborative evidence from witnesses whose characters are claimed to be above reproach. It is an inflexible rule of law when a witness is contradicted and proved to have sworn false in any one material part of his testimony, that the whole of it shall be entirely and absolutely rejected by the jury, unless the uncontradicted statements are supported by credible proof. This\rule is:so well understood and so familiar that a knowledge of it can hardly be said to be peculiar to the legal profession. Phe!ps, Lake and Wescott, are all not only contradicted by others and shown to have sworn falsely in their material statements, but in many of them they are self impeached. Upon the rule I have stated you are bound by the law to reject the evidence of each one of them. Therefore the fact that Lake has related some fragments of what has been sworn to by Phelps is no corroboratian of him. The same is true as to each 136 one of them. One cannot support the other because they are made incredible by falsehoods. One impeached witness cannot be supported by another. It must be a person whose truth is admitted, or at least not as sailed and destroyed, to prop and sustain such a witness. It has been proved that Phelps attended upon "stated preachings" at Sylvan. If he should hereafter bow in the humility of self-righteousness his petition should be a paraphrase of "Holy Willie's prayer," celebrated in verse by Scotland's facetious poet. After reciting his deeds in behalf of the Railroad, he should say, "Yet I maun confess" all my evidence is false. Wescott says he took measures to gain the confidence of the prisoners. He told ten of them that the road was a monopoly-professing to have sustained an injury himself some years past. This is the only means he relates by which he succeeded to their friendship, and through which he became so intimate with them that every thing that men of ordinary prudence would withhold from those with whom they had been upon terms of friendship for years, was disclosed to him because he had declared himself an "anti-monopolist.!" He saw "Fitch very active at the trial of Lester." What does he mean by activity? Not his conversatioll with the Attorney General in the evening. -Is it because he obeyed a legal process from the Court requiring his attendance as a witness? If he was an active partisan of Lester's on his examination, why has not some act in his behalf been proved? He also says Fitch told him "that he had written to a friend in Chicago to get hand-bills printed, warning people against traveling upon the road; that at least seven hundred, thus warned, went around the Lakes; that such notices would compel them to come to terms." Who was that friend, and where is he, that he has not been a witness? At whose office in Chicago were the hand-bills printed? Who are the seven hundred people who, alarmed by its contents, traveled upon the steamboats? Who, of all the citizens of Chicago, ever saw such a hand-bill? It could not have been posted in a city of thirty thousand inhabitants without being remembered by hundreds; especially by the agents of the corporation who were there to take care of its interests. This statement comes from the man, who, when he rode in the buggy with Spaulding from Leoni, turned his back to him to show his hatred and contempt of monopolies; and he is the same man who, being invited on that occasion to stay and witness a Thespian exhibition, swears that he was urged to remain and be taken into the Lodge, and that on the next morning Fitchtold him he had put the brakes on a train of cars that had the lamp broken at the culvert. He also swears, Fitch told him that when the hand car was running forward of the trains the boys secreted themselves in the woods east of Jackson, and after the hand car had passed, slipped obstructions on the track. If such things Were done, where are the brakemen and engineer and the conductorsof the train`? Who, in all the world, is so competent as they to prove it? The track was never molested in the woods to which he refers. If it had been, such a witness would not be left without the strong corroboration that would be furnished by 137 the evidence of some one in charge of the trains, to show that the pretended admission referred to a real occurrence. Again, he makes the same defendant say to himn in September last, that they were determined to bring the Company to terms before the State Fair was over, by putting obstructions on the track at five different points-two of them east of his residence, and between there and the place where the Fair was held. If he could succeed in killing from one hundred to one hundred and fifty passengers, he thought it would bring the company to terms. Who were the passengers that were to be killed?- His own neighbors, friends and associates. The occasion selected for this fearful destruction of life, was one that was calculated- to carry desolation to half the homes in Michigan. He lived but thirty miles from the place where the fair was to be held.Such proximity would render it certain that a large number of the people of his own county would, be on the cars. Yes, himself and one of his most intimate friends were passengers on the first day, his wife and daughter upon the second, and all of them returned upon the third and last day. Which one of these days was to witness such a crime.? Was it the first? Then himself and his friend were to be among the victims. Was it the second? If so, he must have contemplated the murder of his wife and that dear daugher, for whom his undying and affectionate regard was manifested in his lasthour on earth. Was it the last day? If so, he must have "planned the certain destruction of himself, his family and him friends. Who ever heard of such revolting, such deliberate and appalling guilt? Is is possible that men, who have lived honored and respected by the virtuous and good, should, at a single step in vice, sink themselves so low in hopeless infamy? This falsehood begot the necessity of another. No attempt was made to throw the cars from the track at either of the five points that had been fixed upon. Why was it not attempted?.This witness says that he heard some of the prisoners with Woliver say that spies were sent out to Leoni on the second day. But that would furnish no impediment to the execution of their design at the high embankment east of Francisco's station, which is the place where they contemplated such a destruction of life, or at the point named, west of Jackson. The plot was the father of the explanation. It would not be politic to swear that a scheme so extensive, so well arranged, had been originated to be carried forward to execution at a time when there was to be an unusual accession of passengers, without assigning some reason for their unmolested transit over the road. Therefore it is, that he has attempted to supply a reason for its abandonment. It may or may not be true, that spies were distributed on the track from Leoni to Michigan Centre, that prevented the success of the project in part. However that may be, is it probable that a plan of such consequence as this is represented to have been, would be deserted at points remote from those that were guarded? One principal motive that he represents to have influenced them in selecting the embankment east of Francisco's, and another west of Jackson, was to create an impression that the feeling of hostility extended beyond their immediate neighborhood. So that any interference for the protection of the track at 138 the dry marsh, could not prevent or render more hazardous the gratification of their disposition as to the unprotected places, where they were more anxiousg to accomplish their wicked purpose. It is probable that such a vast crime would be discussed or hinted at' in the presence of one who was in no way associated with them, and who was not permanently settled in their midst-of whose character, habits and discretion they knew nothing-one who was among them under circumstances that made him an object of suspicion?;He was there as a mere adventurer, not engaged in any business, to their knowledge, as he tells you. But his real character and employment was not long left in doubt. Before entering upon this secret service, he carried a letter to the Agent of the State Prison, where, it seems, he had sought and obtained a temporary situation as guard, asking that the place might be kept open for him during the short space of time that he might be engaged for the Railroad Company. The contents of this letter were made known to Mr. Fitch, as he says, soon after; so that his vocation was no secret to those whose confidence he professes to have secured by the utterance of one single sentence, conveying his opinion that this corporation was a monopoly. He does not tell whether this furnished him an immediate passport to their friendship. How does it happen that he was seen in the fence corners, lurking about private dwellings, admitting himself to be in the employment of the Company, and yet the depository of all that was said and done by men whom he represents as being organized secretly, devising ways and means, not only for the destruction of its property, but the lives of travellers? Is he the man to whom Freeland would volunteer a statement that " we are banded and conspired together for the destruction of the entire Railroad?" and to whom Fitch, Corwin and Filley would immediately repeat the same words? What object could they have had in thus informing the man who was hunting after a lost trunk, that they were conspired and banded together? It is hardly possible that each one of four men should have said in succession-" We are banded and conspired together to destroy the entire Railroad?" What pledge had he given them'of his fidelity-? When, where, and upon what occasion had he proposed or joined in the commission of any depredation,? Was it when Mr. Fitch solicited him to burn four depots, offering him one thousand dollars if he would do so, or two hundred and fifty dollars if he would burn one of them, and he declined, saying that " such things were out of his line?" Was it when he urged Mr. Fitch to go to Detroit with him and be convinced by Brooks that he was still looking after the lost trunk, and was told that his pretence was too false, too shallow to deceive any one? Was it when he solicited him to join the lodge, but to give an appearance of his sympathy for the purposes it was to accomplish, turned his back upon Mr. Spaulding in scorn? Was it when, in the month of September, in the presence of Mr. and Mrs. Tull, he denounced Mr. Fitch as a scoundrel, and threatened him with imprisonment in the Penitentiary? If they were deceived as to his real vocation, and believed him a 139 sincere friend, to whom they communicated all that was past apd allthat was contemplated in future, why did they always close their interviews by a threat of murder, if he betrayed them? But above all, if it be true, as he has declared upon his oath, that immediately upon his advent in their neighborhood they told him every aggression that had been committed upon the Railroad in its minutest details, when, where, and by whom done, and at whose direction, and all the the degradation. But such is not the truth. He died as he had? lived, esteemed by all who knew him-so that the basis of Wescott's statements are removed. But his oath remains. I have thus briefly adverted to some of the most important statements of these three witnesses, and have subjected them to a fair, legal, and, I hope, logical criticism, with a view of establishing the proposition with which I started, that this prosecution is the result of a conspiracy between them. It is not necessary to the existence of such an unlawful relation, that the common design should have been; conceived by them all at the same time, or that they should have entered upon theperformance of acts for its accomplishment at the same time. Such is not the truth in relation to them. The purpose of subverting the happiness and the liberty of at least one of these defendants, was conceived by Phelps, before he entered upon the service of the Central Railroad Company. It was to be done by false charges against him. To this end, we find him first in the filfilment of an engagement with the prosecuting officer of the Federal Government of this district. With the view of supplying fictiitous evidence, he went to visit two or three families who were distant relatives of his wife's residing near Fitch. Adopting an apparent lawful excuse for getting upon his premises, he went there. He sought Mr. Fitch, professing a desire to purchase property that he well knew no money could get from him. Why was it that his covetousness seized upon the oxen? For the reason that he knew by observation that they were kept at the barn, half a mile distant from his residence. If he could get Mr. Fitch to go with him to show the oxen, he could seek his opportunity, when he should be unobserved, to deposit spurious coin, and the dies for making it, at some place in his barn. If Fitch was so watchful of him that he could not do soat that time, he could prowl about his premises, watching for the barn doors to be unfastened, or to unfasten them himself with a false key, and leave the evidence of guilt he so much desired to fasten upon him. If his visit had gained nothing buta knowledge of the structure of the barn he would have made an important and the most material advancement in furtherance of his purpose. If he had succeeded, when the counterfeit money was secreted in such a manner and-in such a place as to render the allegation that it was there through the agency and act of the owner of the premises, his evidence would have been complete, he would have reported all things ready and called the officers of the law to the search and the arrest. His affection for the cousins of his wife, and his visits to them, would have ceased. But hefailed —he was repulsed-he could not induce his intended victim to go with him to the barn. Hence a second visit to another cousin, who went to the Centre with him upon the same pretext. He was repulsed as he had been before, and was told with emphasis that. he could not have the cattle at any rate. Then it was, that, foiled and chagrined, he forgot to be prudent, and while riding home with his relative he again uttered his vow of vengeance. If he had been successful in the first scheme that he originated, this trial wouldi 143 never have transpired. The failure of that scheme has produced the great Railroad Conspiracy! The manner in which he obtained employment from Bates to feret out counterfeiters, remains a secretbut he improved the advantages of his position most successfully. He informed the District Attorney of fictitious crimes, not withian the jurisdiction of the Federal Courts, such as Arson and Conspira — cies. That officer, trusting in his good faith, hastened to inform the parties interested, as any honest man, and as Phelps, if his relations had been true should and would have done. From that time, all was merged and centered in the success of the leaven which he had caused to be put into the minds of the officers of the Railroad Company. That it worked as well as he expected, is proved by his present position. But a short time elapsed before he was associated with Wescott as a co-laborer. What was it that Wescott agreed to do, of which:Phelps spoke to his wife in the month of January? Was it to second his efforts to get into the service of the Company by commending him to their good opinion as sagacious and shrewd? If so, we have the evidence that he was true. Did he agree still further to furnish material to the extent of his capacity for the narrative that was to be written, giving a minute account of confesions, of threats, of private talk between husband and wife, of his escape from Goose Creek, of the hole in the wall,. of the picket fence? If so, he proved true. He committed one error in fulfiling his agreement, by omitting a personal inspection of the fence, and by relying upon loose information as to the locality of Fitch's sleeping apartment. Was it, that if Phelps would swear that Gay made confessions to him, and that Fitch arranged an interview between them on the dock, he would supply materials to show that Fitch was acquainted with Gay, by following him and Jo Dows toGay's house? If so, he proved true. But as before, he committed a slight mistake-which may have arisen from his zeal, and from his apprehensions of speedy death from violence. Was it a part of his agreement that he would swear that Fitch told him before the depot was burned in Detroit, that he wanted to hire him or some shrewd man to burn four depots;'one at Detroit, one at Ann Arbor, Kalamazoo and Niles; and that he would pay him one thousand dollars to burn thelfour, or two hundred and fifty dollars to burn the, one in Detroit, if Phelps would swear that after it was burnedFitch and other defendants confessed they hired Gay to do it? If so, he was true. If such was the nature of their agreement, he stands acquitted of any attempt to avoid its fulfilment in good faith. If Jones had not been in the city on Thursday to monoplize the time of Mr. Fitch, and if the gentleman from Branch county had not been here to claim his society on Friday evening, no mistakes would have occurred. For that, Wescott is not responsible. But Phelps has no cause to complain of the unfortunate errors into which his associate has fallen, for the reason that the same fatality seems to have followed his footsteps, resulting from his own act; for if he had not gone to the Centre in December, in company with three or four young men, who were his cousins, we never could have 144 proved that the interview he has related as occurring at the barn on that day, was a fiction of his own creation. If he had not induced William Laycock to go there with him on his next visit in January, the conversation that he has sworn toin which he says Fitch admitted the hiring of Gay, the sending of the match and money to De. troit, described its construction, the materials with which to charge it, and the method of using it, would have stood uncontradicted and beyond all danger of refutation by direct and positive proof. If he had not retained the diary, but had permitted Lake to have it for study; he would not have been contradicted by him, by his swearing that no money had been paid to him at Bascom's towards burning the Niles depot. If he had kept Lake from the society of lewd women, and compelled him to study and had listened to his recitations daily, from the time the last chapter of the diary was written, their statements of what occurred upon Lake's introduction to Fitch at the Centre, and upon his introduction to Williams, Corwin and others, at Leoni, and at Bascom's on the 4th of March, would have corresponded in substance, language and punctuation. In short, there would have been no contradictions between them, and Lake's imperfect remembrance of its contents would not have compelled the counsel to confine his examination to three or four chapters. He would not have sworn that Wescott had been at the residence of Phelps-which leads to an inquiry as to the purpose of his visits. What business could he have had with Phelps in the month of March? IHe had been removed from the field of his danger where his life had been periled, to the duplicate office. His missions to Sylvan must therefore have been in furtherance of the object common to him and them. Possibly it may have been that from the recent employment of Lake the engineer, the dimensions and structure of the revolving fire machine were to be settled in full council. That there was a perfect understanding and arrangement as to the evidence they were fabricating for this cause, is proved by the science of correspondence. The leading, material and controlling points in what they have sworn to, developes a case upon the precise plan or plot which Phelps says was discussed between himself and Gay at their first and accidental meeting in the saloon, and which was renewed by them again at their second interview. The suggestion of predicating a charge of arson upon the depot already burned, against innocent persons, as a means of benefitting friends and punishing enemies, was advanced by Phelps. Its paternity is with him. Is it unfair, when we find him at the head and front of a prosecution resting upon evidence identical with the fiction he proposed, to hold him responsible for all the absurdities and improbabilities, contradictions and impeachments that impart to it the same factitious character? He that deviseth can execute. It is a singular fact that of all the witnesses who have been sworn in the trial of this cause, Phelps alone has developed the scheme of charging fictitious crimes not only upon enemies tosave friends, but upon those whose knowledge might make them useful as witnesses, as a means of defeating the ends of justice, by screening the guilty. 145 That neither of these wicked schemes had been forgotten in this trial, is evident from the fact that thirty of the defendants'will go forth to their homes and friends without having been mentioned in the testimory of any witness as connected with the violation of any law. Why have they been disgraced by an arrest and indictment? It has been done with the admitted intention of placing them in such a position that they could not be witnesses for those whose disgrace and imprisonment this prosecution was designed to accomplish. It is not surprising, that, under such circumstances, their convictions should:have been regarded as a certanity, and that the announcement should have been made through the daily and weekly press of this city, simultaneously with their arrest,that these victims of prejudice aad perjury could not be successfuly defended. Not content with arresting the seven or eightpersons who had been proscribed their immediate neighbors, who were acquainted with their habits, and knew such facts as would overthrow the false circumstances with which they had been surrouned, were outlawed, and deprived of the right to stand before this jury as witnesses. This cause'must find its parallel in some event of English history, other than the Gun Powder plot. In the, reign of Charles II, his Protestant subjects were extremely jealous of any approach of Catholic influence in the government. Titus Oates, a wretch whose vices had driven him beyond the pale of society, wrote a narrative, in which, taking advantage ofthe public prejudice, he described a conspiracy by the Catholics to subvert the influence of the established church, and plant their own faith upon' its ruins. He swore to the truth-ofhis narrative, as Phelps has done. The feelings and prejudices of the English people favored his wicked designs. Whoever that depraved outcast accused, went to the dungeon, and to an ignominious death in quick succession. No station in life, no degree of devotion to the government and laws of their country, furnished security to the subject. It mattered not that his victims pointed to alife of loyalty, purity and patriotism, or that they called upon their peers to prove their innocence. The oath of an outcast was deemed conclusive of the truth of his fictitious accusation, and was the sure condemnation of those who were so unfortunate as to be marked for the sacrifice. Rump judges forgot that their office was to administer law and justice; that a trial by jury- was for the protection of the innocent as well as for the punishment of the guilty. They sometimes even forgot to be decent, and allowed high-minded and conscientious witnesses for the accused to be hooted and abused as perjured abettors of the conspiracy. The impostor had his day of public eclat in which he was caressed, and after that his day of terrible retribution. Phelps has attained equal celebrity. If he has not received the approval of his government, he has been fondled caressed and protected by a corporation, that having risen superior to the government, has trampled the Constitution, and laws of your State unidcrfoot. Railroads did not belong to the inventive genius of the seventeenth century, but if the great English impostor had been reserved by his Creator to the present generation and to Mi10Q 146 chigan,this corporation might have had another witness; Phelpsanother coadjutor, but not a superior. Forgetful of the boasted strength, truth, integrity, convincing and all-conquering force of its own cause, the government speaking through the organs supplied for its utterance by the Railroad Company, has abandoned the evidence of its three oracles, and asks you to convict the defendants, because John Hawley who was sworn in their behalf, has come before you and admitted that he had stated what was false. If his statement was false, who is chargeable with the falsehood? Not any of the defendants, because they had none of' them ever known or seen him before he came into the witness box and told his story. They had not solicited his evidence. The Counsel for the prisoners are not to be charged with, nor are they blamable for. his wickedness, if he swore false; because he says he was induced to come here as a witness by one of Phelps' associates. We had been informed that Phelps pretended in his first revelations to have leai _ed from some one in Indiana who burned the depot, instead of from Gay. A friend of one of the defendants having been advised of the fact, went there with the view of learning the truth. Unfortunately he fell into company with one ofPhelps' old associates, who imposed upon him, by introducing him to Hawley as a respectable man. He brought him to this city well recommended in character. He imposed upon me and my associate, if he has sworn false. The defendants and their counsel are not responsible for his conduct. What was he called to prove? Phelps had solemnly sworn that he had no feelings of enmity towards any of the defendants, and especially toward Mr. Fitch. Hawley was called as a witness, simply to prove that Phelps had lied in this respect. That he had made statements indicating revengeful feelings, by proving that he had proposed to charge fictitious crimes upon him. This was the legitimate and only effect of his evidence. Suppose the statement of Hawley to be untrue, have we attempted to prove by him that which was false in fact? No, gentlemen, we have not; and although Hawly may have stated what was false, in swearing that Phelps proposed to hire him to burn a depot, so that he might charge the act upon Mr. Fitch and others; yet the main fact that he sought and intended to accomplish the conviction of Mr. Fitch and all others who contributed to his own conviction,-that he hated and despised them, stands incontrovertibly proved by his threats of Mr. Fitch to Mr. Foster and Mr. Beebe; sothat, although Hawley may have lied as tothe occurrence he represents, he has not belied the feelings of Phelps. He was imposed upon us by the procurement of one of Phelps' associates and friends. Whatever may be thought of his testimony, the truth is not and cannot be controverted, that Phelps was seeking to avenge his own disgrace upon a portion of these defendants. If we have not been imposed upon by any one other than Hawley, we have occasion to be thankful. This cause depends upon the truth of Phelps, and the capacity of his match. 147 I have shown from the testimony brought into this cause, that noa conspiracy ever existed between the accused persons, or:ny number of them, to accomplish an injury to the property or business off the corporation, the servants, agents and money of which have been. the instruments of this unparalleled and oppressive proceeding. The'bare suggestion that such a fearful and determined organiza — tion had been formed for the term of two years, reputes itself. If it was true, that they had so combined, and had abandoned themselves to the promptings of the worst passions to which men are prone, hatred and revenge, there would not, nay, there could not have been such a perfect dearth-such an entire absence of all proof. If fancied or real wrongs had produced animosity so terrible, so reckless, so general as to lead forty men to enter into a covenant, with solemn pledges, to reduce the road to ruins, where is the countervailing influence that hos stayed the consummation of the compact? Is it possible that so many, or any number of men, should have conceived a crime of such magnitude, and after the lapse of two years, with every facility to make it real, that nothing but its romantic conception can be imputed to them? If any injuries have been shown, they are not the result of deliberation, of concert and combination of effort, but they are isolated, vagrant, impulsive and individual acts. Where are the numerous and expensive bridges that span the rivers and streams on the line of ihe road? They were easy of access, and if one injury could be more serious than another, more annoying, and produce greater loss, it. would be the destruction of them. Yet they all stand, and have. stood for two years, bearing loaded trains over the iron rails that. stretch from one bank ti the other. I have shown, from a combination of the material facts proved by: the government; with those shown by the defendants, that their in-l nocense is a logical certainity. In a criminal case, every hypothesis. that favors the innocence of the accused, must be excluded by evidence, or no conviction can be had. It is not sufficient that the testirony raise a suspicion; but it must, when subjected to the test of: reason, be divested of doubt. If any fair suggestion can be made that will'leave thejudgment n6t fully convinced, that will lead to the reflection, upon mature deliberation and just criticism, that the party may be innocent, the jury shall not say he is guilty. In this cause every hypothesis of guilt is excluded. First-Because no circumstance or fact indicates that the alleged principal and accessories ever knew or saw each other; but their divers habits and characters -the distance intervening between the places of their residencethe fact that Gay had never been in the country where they lived, and was unknown to the inhabitants thereof-the fact that not one of the prisoners had been in Detroit within two years before the fire -shows that they could not have been acquainted with each other. Second-For tile reason that'it is not possible that he should have put the box in the cupola without being observed by the workmen or the watch; and from the utter impossibility that the fire would have continued, after the exclusion of the air, during the timeres 148 quiired to carry it from his house to the depot; but above all, because it is shown to be a philosophical impossibility to make such a match -burn for the space of ten minutes, under the most favorable clrcum-.stances, when charged in the manner described by the witnesses..Tird-For the reason that it is not only possible, but more than Probable, that the fire'originated from the carelessness of iMen at work in the building, or from other casuality; from the fact that when first seen by those who looked with the view of ascertaining,here it was located, the flame was several feet distance from and below the cupola, at a place where it could not have been communmicated by an incendiary. All the witnesses who have been called to controvert thestatements of those sworn for the defence, disagree as to the particular place at which they first saw the fire; but they all agree in locatirg it from ten to twenty feet above the ridge of the -main roof, with the exception of Mr. Bush, who swears that he as-,cended the stairs to the second floor, and that the fire was then con-fined to the timbers, not only below the floor of the cupola, but below the ridge of the roofof the main building. Therefore, it cannot Abe true that the fire was communicated by placing a box or machine upon the floor of the cupola, which was from one to two feet above the.ridge of the main roof; because if that had been done, the flame would not have been first visible below that floor, or fifteen or twen-ty feet above it. I have also shown you that the charge of arson upon these prisoners, is the result of.a conspiracy. 1st. For the reason that the'confessions to which Phelps, Lake and Wescott have sworn, are unanatural and improbable, and in most instances that it is impossible lthat what they have related should have occurred; and one of them from his own admission, had conceived and proposed the' scheme of,making false accusations of the crime of arson, to be predicated up-on the loss of the same building for the destruction of which these risoners are upon trial. 2d. The witness who proposed this scheme had wrongs, real or fancied, to redress against a-portion of the defendarts; and he has falsely sworn- to relations of friendship and condidence, well knowing that feelings of hatred existed on his part, and ~distrust and suspicion on their's, arising from a knowledge of his infamous character. 3d. Because the facts and circumstances which lave been proved, show that he and one of his coadjutors must have:made the matches. They have never been seen without their pre-;:sence, and you have their denial alone, in opposition to the fact that they were possessed of the tools and of timber from which they must Cave been made-as to which there can be no dispute. The textMre, circles, and above all, a blister or knurl, formed upon the end -of the block of timber, and in a corresponding place upon the end of he match, mutely but eloquently proclaims their identity. 4th. The niterviews to which Phelps has testified between himself, Mr. Fitch'and others, are shown to be false. The evidence of Wescott, as to his material statements intended to, show an acquaintance or intiumacy between the alleged principal and one of the accessories, is,eually so. They stand unsupported. The Niles enterprise, which 149 was intended to impart an impression of truth and force, to the statements of two of these witnesses, is a mere fiction and fraud. No> fact that has been sworn to by any man of pretended respectability, has any tendency to establish the truth of what they have said; but such facts are not attendant upon or connected with that which iA alledged against the prisoners. You have seen that it may be true. that Phelps went to Lansing and approached one of the defendants, that he followed him to Detroit and forced his recognition, and yetthat no secrets, no criminal or virtuous acts should have been communicated to him. You have seen that the falsehood with which he has associated his visit to Detroit, has no consistence-" the lie istransparent." It is then true, that the means by which these three witnesses hate. sought to accomplish the disgrace and imprisonment of the defend — ants, are unlawful, and therefore their association is a wicked anzd corrupt conspiracy. I have gone through with a discussion of the material facts in this? case, and made such deductions as irresistably arise therefrom, with the view of vindicating the truth, and in the same manner that I shoulds have done, if death had not invaded this court room, and relieved you of the responsibility of pronouncing a verdict for or against him's who has been treated as one or the vilest and most abandoned of men. When we commenced this trial, there were thirty-seven parties to the issue, who were immediately interested in the verdict that should be rendered; becauseit might affect their liberty. But there was one among the number more deeply interested than any otherbecause he had been denounced not only as the leader of a band, organized for the destruction of property and life, but the odium ofnearly every crime known to the law was cast upon him. His conviction was said to be the great object of this prosecution. It wasdetermined and avowed by its instigators that so long as he breather the breath of life he should never have a day of liberty. That determination has been accomplished. Mr. Fitch has attended this Court and jury for three months. He demanded the right of giving bait — a right that belongs to every citizen. Having entered into a recognizance in the sum of twenty thousand dollars upon the indictments pending against him in this Court, he was detained upon civil process at the suit of the Railroad Company, upon an order requiring bail in the sum of fifty thousand. The controversy ceased to be an issue between him and the people of this State, and became one of the monetary power between himself and a corporation with seves million dollars capital. iHe met a power behind and above the government-a power that is seldom regulated by humane and just sentiments; that always seeks to crush those it' cannot cajole. Helived to hear the details of crimes existing in fiction alone, which were as novel as they were revolting to him. His life has been saccrificed in the midst of his days. God in his providence has permiitted him to fall upon the altar of freedom-a victim of injustice and oppression. The community in which he has lived has lost one of its most us — 150 ful and upright citizens-a large circle of friends, one whom they honored and respected when living, and whose memory they will never cease to venerate-the surviving defendants, one who was not an associate in crime, but a high-minded and conscientious mad, whose kindness as a neighbor they have more than once had occasion to appreciate. A home which was the seat of comfort, luxury andhappiness, has been made forever desolate. My associate counsel will always remember him as,a gentleman whose innocence they never doubted, and who was only anxious that his trial might reveal the truth. Never forgetting him as a gentleman of uncommon en-:dowments, just and honorable; I shall always remember him as among my best and earliest friends. The last solemn and impressive words that he uttered on earth, belong to his friends alone, and I will not make them public property by repeating them here. A higher and holier tribunal has ere this judged him in mercy. As his counsel, and as his friend, it was my solemn duty to discuss the evidence, not only to rescue his memory from reproach, but in justice ot the defendants who are still living and awaiting your verdict. Your responsibility is to the Government and the prisoners now before you. I commit them to your judgment; that it will be conscientiously delivered, your standing as citizens and men, the patience with which you have listened to the evidence, is a sufficient guaranty. I remember that spring time and summer have passed away and that another quarter of the year has overtaken us since you were empannelled, and I leave the further discussion of this cause to my distinguished associates. MR. HEWITT. After Mr. Howard concluded his remarks, Mr. Hewitt, as counsel for Mr. Smith, one of the defendants, opened his argument as follows: May, it please the court, and gentlemen of the jury,-Circumstances having materially changed since my original connection as counsel in this case, I appear here in a very peculiar position; and the court has intimated that I must confine myself to my remaining client, Mr. Smith, instead of to Messrs. Smith and Gunn-Mr. Gunn having died since its commencement. The testimony originally applied to both clients, and was more or less interwoven with the entire case; and I am now obliged to pursue an entirely different course. It would be almost impossible for me to single out this one defendant, without referring occasionally to the testimony of others; for the testimony which refers to him alone was confined to a single point, and had the case been kept where I suppose it ought to have been kept, and where the counsel for the defence contended it should be kept, although they were over-ruled by the court at the outset, there would have been but a single word of evidence touching or af-.fecting my client. But it was hinted that it would have been ne 151 cessary to take up the issue for the purpose of trying this defendant step by step, to show the connection with the crime charged in this indictment. It was claimed that it was necessary to show the original connection with this defendant that the conspiracy had been formed-that they had their secret meetings, their bond of union,.and their oath which compelled them to stand by each other,no matter how far the conspiracy was to be carried. We contended that.they could show no such thing, and that they had been deceived in rlation to this-matter. Was there any opportunity of their being deceived? How could it be done, when the testimony had been written down, and it had been consulted over for months. Not only had it been written down; but it had been sworn to, and there was no opportunity for mistakes,so far as related to secret meetings, bonds of union, or oaths'to concentrate action. But gentlemen of the jury, where do we find any secret meetings which the testimonv has developed? True, it was necessary for them,in the first place to lay a foundation broad enough to introduce testimony which would not have been permitted under any other circumstances. It was to get it in as ruleable, and at another time to tell you it was the reverse. That issue relates to two men; those men had been convicts in the State prison, and without the broad foundation which had been laid, for this conspiracy, they could not go into all these acts for depredations upon the railroad in connection with the burning of the depot at Detroit-they could not go into all these minute incidents which witnesses could make and corroborate. If the story this witness told was true they could just as well have tried the case.in five days, by getting at the facts connected with, the statement,, as to have been five weeks in obtaining witnesses from all over the State. But the object was apparent, it was to come before us with a plausible story, and say that Phelps was sent to State's prison wrongfully-that the simple fact of his confinement in the Penitentiary was nothing; still they show you by their acts that they are to depend upon something else beside it. The story itself which he was to testify to they knew to be so startling that it would not be believed. Coming back to a point at which they claim he formed an intimacy with the principal defendants here; being, as he says, let into the.secrets of these defendants, and going on and writing out his statement, the counsel presenting it to him-their seeing it only that day.and before their coming on to the stand and swearing to it as if the story was credible in itself. But there was another thing they knew. They knew full well it was necessary to corroborate the testimony -of the witness Phelps, from the fact that his appearance on the stand was snch that no sane man would believe his story. Did he come forward and attempt to tell a plain, simple and unvarnished tale, and.meet a cross examination fairly? or did he stand there with a kind of smile upon his countenance, as much as to say, Gentlemen, if I am smart enough you cannot catch me. When he was attempting to point out any particular circumstance, did not his acts show to you that he was not to be believed. 152 I said, gentlemren, I should confine myself as closely as I could to this one particlar client, and in doing so, I necessarily speak of Phelps, as he is the only witness who has testified in relation to the defendant Smith. And now let us look for a moment at the state-. ments of these two witnesses, Phelps and Lake. Take their own stories as they gave them on the stand-take the fact that these two men formed their acquaintance in the State's: prison while together, and the additional fact that Lake states that they were intimate for only a short time-that they had a difficulty and were never friendly afterwards. Take another fact which:Lake gives; which is, that he did like Phelps because he was a bad man. And then whhn you find phelps in the employ of the railroad Company, for the purpose of ferretting out the depredations on the road,, who is the firit man he goes to to assist him? Who does he make his right hand man? A man, gentlemen, who he is not good friends with, in whom he had no confidence, and who had no confidence in him, and the only man that Phelps had controlled in this case-the man he had made his bosam companion almost-is this man Lake. And yet Lake tells you they were not good friends, and not on good terms, the reason why you are already in possession of. The Conversation and only evidence there is at all in relation to the participation of Smith in burning the depot was by Phelps himself. No other person was presant, whose testimony is brought on the stand. He stated to you in relation to this conversation which he had with Gay, and in which Gay admitted to him that he had received a certain amount of money from these defendants in relation to burning the depot. He asked Smith what Gay had done with the money, and Smith replied, " he had kept the whole of it." This I believe is the extent in relation to Smith. Now if we had not gone first to the indictment for burning the depot, this would be the entire evidence against Smith. But it will be claimed that there are other evidences against him-that he had been present and aided in the conspiracy to burn the new depot. Now all this must be taken in reference to the night Gay burned the depot, and in the manner stated by Phelps in his evidence. For if you, gentlemen, do not determine that this depot was burned by Gay with a match, then there is an end to this whole case. If there can be a doubt about it-a reasonable doubt about it-that it was burnt without It, it shows that this statement is untrue, because the story is all connected to-. gether, came from the same witness, and is part and parcel of the same transaction. Mr. Hewitt proceeded at some length in reviewing the testimony as given by Phelps and Lake. Making nice criticisms and distinctions udon the various points embraced therein, and alluding particularly, and with emphasis to their being in the employ of the Railroad Company, upon a fixed salary, with a prospect of a large increase in case of the conviction of any of theperpetrators of the outrages committed on the road. And that they, under these circumstances, felt bound to make the best use of their time, and did not: scruple he intimated, to deviate from the truth. He alluded also to 153 the improbability of these men carrying out any concerted plan of action, adopting rules of government, ond carrying on their meetings for the purpose of concocting plans for obstructing the track, and destroying-the property of the company without being detected, when it is admitted that most, if not all their meetings, were held in a public bar room, and where they were constantly liable to interruptioriby frequent visits from travelers and visitori to such places of amusement.] The heat being most oppressive, and the sitting having been protracted to an unusual length, the court took a recess until two o'clock. l WEDNESDAY AFTERNOON. Mr Hewitt resumed his argument. Gentlemen of the Jury, you will recollect that when we adjourned for dinner, I was attempting to trace the foundation, origin and extent of this conspiracy. I did not exhibit or wish to follow the testimony through the course entirely, or make direct reference to the various witnesses who have testified upon this point. I shall refer to the case generally, but especially with reference to the particular client in whose behalf I was addressing you. I had traced the matter and spoken of the meeting at Michigan Centre-at Filley's tavern-of the obstructions placed upon the road, and of the depredations committed upon the property of the company, as connected with the main purposes of the prosecution, to wit to show that there was an organized body of men bound together for the avowed object of committing such crimes, and of carrying them to such an extent that the company would pay them such sums as they demanded, for injuries done to' their property. I don't know that it will be necessary for the purposes of this examination to follow that branch any further. I think the evidence clear, and that it has demonstrated that there was no such organization, or systematic plan of operations. It is so clear that it needs no further comment on my part. The simple fact I alluded to of the perfect absence of any proof to bring this case up to the point pledged by the prosecution at the outset, is sufficient to render it necessary to button up this branch of the case to faith, or to occupy your time, and consume my own strength in commenting more upon it. It had been stated that this was an issue between the people of the State of Michigan and the defendants. As a matter of form it is so. But as a matter of fact it is an issue between the rail road company and the defendants. That company had come here, and protected by the public sanction, had for their own benefit invested a large amount of money. And whatever may be said' of the people at large, this issue resolves itself down to a single point, and that is between the company and any persons they may see fit to attack. It is for their own interests that they have constructed this road, it is for this that they are continually dogging our Legislature for special privileges-privileges which neither you nor I can obtain. They invest money for the sake'of making money; they bring their operations to a single point, inorder to secure the most influence 154 and the most honor. What are their interests here? In the first place it is to make the most money for themselves; in the next place t make all subject to them, and to show that they have not only the will, but the power to lay their hands upon them and crush them at once, simply because they will not submit quietly without complaining or saying a word. This is the case with these defendants. Can we, if our property is injured or destroyed by this company, get satisfaction. We can go into the courts, it is true, and in some instances have justice done us; but even here the citizen is not on equal footing with the company, and has not equal rights. Where is the individual in this State, with two or three exceptions, that can enforce his legal rights against this company. There is not one. Money is power; and when money is used by those who have little consciences and no souls, the chances are not equal; it is used to oppress the poor and weak. It has been proved that the railroad company was in the habit of running over the property-cattle of these defendants-I will not say wilfully or malignantly, but they ran over and destroyed them. One case I will refer to, when the best cow of a poor man was run over and killed, and when he went to save what he could of her, she was burnt up. Those in the employ of the rail road had piled wood around her and set it on fire. I allude to this case-the case of Williams, I believe, as showing what has been done; but that is immaterial. By the laws of this State the company has a right to run through our farms without our consent, and that too without fencing the road. And if our cattle are killed upon our own farm we are left without any remedy. It has so been decided during the last year, by our courts. If they are killed at the crossings of the public highway, we may get pay for them; Lbut the poor man] has no means to enforce his remedy. He can only appeal to their sense of justice. If they refuse him compensation, he has got to lie down and bear it. Is it strange that men thus circumstanced become desperate? Is it strange that they are impelled to do what the law will not bear them out in doing'? If anything has been done aiming towards the destruction of the property of this road, it has been from desperation. If obstructions have been placed upon the track, it has been by the way of revenge of individual wrong, and not by any association between these men. Numerous instances have occurred in which men have had their property destroyed, and have been met with the insolent proposition to pay the one half its value. Is it strange that a man, after losing his property and being thus insulted, should take the power into his own hands? But even if this is the case, I say it does not show any organization between these men to injure the property of the Central Railroad. If this state of facts does not prove a conspiracy ending with the burning of the depot in Detroit, then it has nothing to do with this case. I ask, gentlemen, what has the evidence in relation to a conspiracy-to a systematic organization, to do with this case. In saying this I do not mean to admit, and I do not admit that there has been any testimony to show a conspiracy, except to show 155 that the witnesses for the prosecution have been attempting to carry out a conspiracy more dangerous to property, liberty, and life, than any with which these defendants are even charged. I ask, gentlemen, is there any class of citizens so much to be feared as a body of men banded together to accomplish their purposes by wilfull perjury? You can guard against the thief, you can guard against the midnight assassin. But you cannot guard yourself against him who is in secret plots to swear away your liberty by wilfull and corrupt perjury. You can commit a man more readily for any other crime than perjury. And for this reason this crime has become alarmingly frequent. You may askclerks of courts, sheriffs, attorneys, or other persons in the habit of attending our courts, if this is not so, or search the rounds of our courts, and you will find but few cases if any ofa conviction for perjury recorded. Our laws are in such a shape that almost any man may commit this crime and, with ordinary caution, go unwhipt of justice. Then. there is nothing left, I aver, of the conspiracy except the admissions of the defendants about forging money or having a knowledge of the burning of the depot. Take all the circumstancesjudging from the appearance, of the witnesses on the stand, what amount of credibility is to be given to this part of the testimony? Though a witness may be corroborated in some points, the proposition that, therefore, he is a creditable witness is not so broad, and common sense will not permit us to give credence to a witness where he has not been corroborated. The character and effect of a witnesse's evidence, in the first place, depends upon his own credibility, and if,not creditable, to the manner in which he is corroborated. Much depends upon the appearance of the witness,upon the stand, though he may be corroborated in some instances. I by no means admit that the depot was burned by design at all. I deny that it has been proved that George Washington Gay burned this depot or had any hand in it except by his own admissions, which are not evidence here, Gay not being on trial, or having been convicted., If the prosecution had evidence of the fact, which they intimate they have, by attempting to raise the difference by the testimony of Titus, that Gay's wife placed the match found by him under the sidewalk, subsepuent to the arrest of Gay, they ought to have submitted it to the jury and not left so important a question to mere inference., The evidence which has been given mainly points at Fitch. Mainly, I say, because he was brought up here as the leader of the gang. He was called the Captain, and to show that he was " THE CAPTAIN," it has even been said that when they were coming in upon the cars, at the time of their arrest, if any of these defendants were about to say something of their knowledge of Phelps or Gay, a commaand went forth from Fitch which silenced them at once. It has been rung in our ears from that time to this, that Fitch was the ring leader. He has been adjudged and worthy of punishment even without a trial. The maxim of the law is, that a man shall be deemed innocent until he is proved guilty. Unfortunately we have been 156 placed on the reverse side of this picture, and public opinion and thepress, for a time, almost demanded that he should be hung up without hardly the form of a trial. These defendants have been called upon, in effect at least, if not in form, to prove themselves innocent, because they happen to be charged with being guilty. But public opinion has changed, and is changing, and because it has changed is sneered at by one of the counsel on the other side. The sober, second thought has come. Time will always right pub. lie opinion. The man who sets himself up in defiance of it, though he were the greatest man living, must either be a very great knave or a consummate fool. But to come back to the point in relation to the admissions of these defendants about'burning the depot and their participation in it. And upon this point, I only desire to refer to the testimony of witnesses, and to simply inquire into the amount of credit to which they are entitled. In the outset the prosecution found it necessary to corroborate their principal witnesses, who mostly graduated at the State Prison-and they went outside the record, as we contend, to corroborate them. In relation to the amount of credit which this. corroborating testimony has given them, let us inquire wherein it relates to these admissions. Who are they? Wherein in a single instance have they been corroborated? Unless they show that the burning of the Depot is the result of this conspiracy, by something outside, it cannot be taken into the account at all. And for this simple reason: you cannot contradict a witness on points immaterial, so you cannot corroborate him on immaterial points. This is the case with the testimony of Phelps, Lake, Westcott, and Caswell. None of the facts can be taken into the account so far as regards this issue. Unless the conspiracy be first made out, they are immaterial. I should like to see you put your finger on the least particle of evidence that goes to corroborate Phelps or Lake in their testimony in relation to burning of the depot. You cannot do' it; therefore it must be thrown out. It is not the testimony of credible witnesses or corroborated. Then, if the testimony is not corroborated, and I contend that it is not, it cannot be taken into the account. One of the witnesses was sent to States Prison from Jackson County; therefore, his evidence is:not to be discredited on that account; also, that he was innocent. The other was sent from Wayne. This is all the difference between them. The latter, it is said, went for a small offence, only assisting another out of jail, one with whom he became acquainted while in there himself for stealing. It is true a man may be a thief-he may be sent to the State Prison — but that don't of itself impeach him. He may be guilty of all the vices, and the simple legal principle closely tied down, says he is a competent witness; it only goes to his credibility. But the old adage seems yet generally to be regarded as true, that "if a man will steal, he will lie." But I need not spend so much time on this point. The prosecution began upon the assumption that these men were not to be believed unless they were corroborated and sustained. How far they 1.57 with Clark. I had laid aside part of my disguise at this time; I gave a written statement of what I saw and heard, that afternoon, to Mr. Van Arman. Phelps was not present; I did not swear to it; have never seen it since to read it; no one since that day has ever conversed with me about what I was going to swear to here. By a juror-When -lay came up towards me in the morning near Jackson, he hitched his horse; was a long time hitching his horse, and then came a few rods towards me, and turned back, got on his horse and rode off; his actions induced me to believe he was watching me. Alanson Sheley sworn-Reside in this city; know Phelps, who was sworn here; know Fitch; did not know him before his arrest; last winter I was at Johnson's Hotel; saw no one I knew; a man was walking back and forth at the tavern; soon saw a man coming from the depot, rather shabbily dressed; the man whom I saw walking back and forth stepped out and met him, shook hands with him and asked him if he was here yet; the man who came from the depot looked loaferish and muddy, as though he had been out traveling somewhere. The other one, from the hotel, was a well dressed, gentlemanly looking man; the well dressed one was taller than the other. When Phelps told his story before the grand jury, I remembered the conversation and circumstances, and I went up to the jail to see if I could recognize Fitch; after a little I saw a man among the prisoners who I thought was the same'I saw near the depot; I was told this man was Fitch; I think the man I saw at the depot was rather taller than Fitch is, but his face looks like the one I saw there; the other man was about Phelps' size, but I think looked a little thicker than Phelps; can't now say it was Phelps; it was in the spring I saw them. Mr. Seward noted an exception to the reception of the testimony, on the ground that the persons were not identified. Witness-The well dressed man asked the other if he had not gone yet, and the other said he had not yet got his fish, and asked if he knew where he could get them; the well dressed man said "round there," pointing towards the dock and warehouse; I thought at the time that the man need not be in such a hurry, as it was too late to get them on the cars; I left them talking, and heard this conversation as I passed them; I never told of this or thought of it afterwards, until Phelps appeared before the grand jury, which brought the subject to my memory; I was a member of the grand jury; I think the shabby dressed man had his pantaloons in the tops of his boots; wore a cap and I think had an overcoat Mr. Seward noted an exception to the reception of the evidence: that witness had not mentioned what he saw till he heard Phelps before the grand jury. Cross examination waived. The court took -a recess for an hour. AFTERNOON SESSION. Geo. V. N. Lothrop sworn-by Van Arman-Was Attorney General of the State from April, 1848, to last January; had something to do with the prosecution of one Lester, in Jackson county, for depredations upon the rail road in 1849. H1 158 But as they neglected to do it the presumption, instead of being in their favor it is'aganst them. But, gentlemen, I have said all I wish to upon that point. Athough much has been said aboutthat match, I wishto say something about the probability of the depot being burned by a. match-such as the match proposed by the prosecution, and sworn: to by Phelps. We claim that the testimony offered by the prosecution to prove the burning of the depot by that match, is an entire failure. I' need not spend your time nor mine in showing you that the experiments we madi to test the possibility of the kind of match sworn to by Phelps burning the depot, under the circumstances as laid by the prosecution, shwed that it was all a humbug. You will find a description of the match in Phelp's testimony, which I will road, (reads it) Speaking of the match used at Niles, he said that it was. the same kind. Then there is the evidence of Phelps about the cotton and camphene. He says he lent Gay $2,u0; he sent his boy to Parker's and" bought the camphene. Now, the idea that camphene will not burn in the manner and under the circumstances described by Phelps, was never entertained or thought of by them, until we showed to the contrary by repeated experiments. They too, got a chemist to experiment. But how long: did he experiment? What result did he arrive at'? Had his experiments sustained them, why did they bring the result here in perfect triumph? No, gentlemen, had it been necessary, and had there been any probability that a match could have been manufactured, such as is described by Phelps, Dr. Desnoyers, such is his love fdr science, and his determination not to be beat, would have experimented five years-especially if backed by their money and paid for his time. It is said that Gay fired his match at his own house, which is about a mile and a half from the depot. It was fired at 8 o'clock in the evening, and 2 o'clock in the morning is the shortest time given. by any witness, as the time when the fire broke out. Thus causing six or eight hours to intervene between the firing of the match and' the depot. And then he carried into the depot among the hands employed there, and up stairs, when it accomplished its work of destruction. A very probable story indeed! Dr. Desnoyers tried the"camphene, as described by Phelps; and it proved a perfect failure. Now, unless it is shown by a fair experiment that these matches furnished by Gay or Phelps can be made to burn, there is an end to the case; for it is built upon the hypothesis that the depot was burned'by one of these matches; some other way wont do. We must have the depot burned by this match or nothing; at our hands. I need not take up your time on the evidence in relation to the burning. There is none except the confessions of Gay as proved byPhelps, Van'Arman and Clark. It is contended that this is sufficient. Arson is not likely to be perpetrated before witnesses. No man who proposes to perpetrate any crime, is very apt to do it in the presence. of others; it is for this reason that I have argued against conspiracy; 159 there was no secrecy about it. Alluding to their own showing, the outrages which are alleged to have been committed, were quite a public matter. Men don't act thus when banded together for the commission of crime; no, gentlemen, it is unnatural. Gentlemen-How many mills have you known to have been burned by taking fire from the machinery? And elevators are more likely to produce it than any other kind of machinery, not on account of the velocity, but of'the weight upon them and the friction of the band. How many witnesses, told you that there was more than usual weight upon the elevator in the depot, but that they thought this was not sufficient motion to produce combustion. The whole theory of the charge against Gay is that he; burned the depot by applying this match. Now if we prove that it could have been burned in any other way, the'ase falls to the ground. Well, we have shown by one witness that a candle was placed upon a bin, up stairs, by being merely affixed in tallow melted and dropped on the bin. We produced another who tells us that the same thing was done below stairs. On the night of the fire, a candle had been burning within a foot of the roof, being upon the side of the bin. Here are then different occasions when lights were fastened in an unusual way. I submit whether there is not great danger of setting fire to a dry ceiling with; a candle within aa foot of it? They were not so careful in the depot as they pretended to be. I refer to this part of the testimony to show that it is very probable that this building took fire by accident. I refer to it to show that the proof and testimony is very far from being satisfactory to prove that the building was not fired by design. The first thing to be proved beyond a doubt, is that the depot was' not on fire by design. But after you have found this, your task is not done. You have then got to find whether the fire originated in the manner laid down in the indictment-men are not to be convicted by presumption. You are not to deprive a man of his liberty unless you are satisfied beyond a doubt, that the prosecution do not lie. This is a material point.,The facts have got to. be proved in the' manner set forth. Some other way wont do. You must take the evidence, and see if it sustains the indictment. If it does not, there is an end of the case. Another point, and this is in reference to my friend and client Smith. It has a bearing upon his case more strongly, but upon the general conspiracy. The evidence of the prosecution, I insist, is: entirely insufficient to convict him with it. No attempt is made to prove that he was one of the original conspirators-none that he was even in Michigan Centre, or in Jackson County, even-nor that he was known to any of these defendants. He is aresident of this city, and has been placed in situations, where if he had not been known he could not have staid. His character stands fair, and Hiram R. Andrews is ready to receive him back into his employment, as soon as we get through with him here. He was a farmer-lost his health, and went to Mexico. He returned to this city, but he has been incarcerated in jail since the 19th of April last, simply because this man Phelps sought to put his hand on him. It is true, he 160 was bailed out for six days, and then put back again. For what reason I do not know, as ample bail was offered. It is true, he is guilty of one vice, which I cannot excuse. And it:was probably that when he had more liquor in his head than sense-that he said he received a portion of that money, but that Gay kept the most of it. You see I go upon the presumption that Gay is guilty. But the counsel will say that this is not the whole testimony-that he said subsequently that he knew of the plot to burn the new depot. Is there any evidence of that-evidence sufficient to take an honest citizen from his family, leaving them to the cold charities of the world and incarcerate him in the State Prison. The argument comes back with redoubled force in the case of Smith, known to you all to be an honest man,,in relation to Phelp's credibitity,.uncorroborated as he is upon this point. But I need not here comment upon the testimony to impeach Henry Phelps. If it is in the power of one man'to impeach another, he is impeached beyond the possibility of redemption. The rule that the general character of a man may be proved only from his neighborhood; the counsel for the prosecution very prudently agreed to throw open. They knew the character that the neighbors of Henry Phelps would give him, and therefore wished to go where he was not so well known. But on consultation we thought it best to adhere to the rule. Look at the situation of the impeaching evidence. The prosecution will tell you that it came from a very few men. But did not every one-all —-the entire neighborhood tell you thesame story? Is there an exception within the precincts where he lived? But counsel will say it was to be expected. It was a part of the conspiracy to swear any man into the State Prison who should come up here and testify against them. Where did the impeaching witnesses come from? Not from Michigan Centre —the locality of all these alleged enormities. In order to commit Smith on this testimony, you must believe Phelps, and according to the Prosecution, you must believe him because he is sustained. Where was it that Phelps alledges that Smith madethis second confession about receiving a portion'of the money? In the Palo Alto saloon. And Lake swears that he saw him then. He observed no secrecy, as they alledge; he did not even take them aside, but told it publicly in a public room. No, you would not believe it if it come from Dominie Duffield! Circumstances don't lie, if witnesses sometimes do. We dou't boast of committing crime publicly. This is not the way these things are done. Now, I ask again, what testimony is there that Smith had anything to do with this matter? He had no dealing with the other defendants. He had no knowldge of them, and the only proof that he had anything to do with Gay, comes from Phelps. The testimony of Heman Lake don't help it; as it only refers to a i;lng to be done, and which has never been done. But what evidence is there that Lake testifies against the defendant, Smith. He went up to the jail and said he did not know him, even when Smith was pointed out to him. It is true, he says he was introduced to a Mr. Smith at the Palo Alto 161 saloon. He did not know him before and does not now. This is not a sufficient identification. The Smiths are a little too thick for this. Then there is no evidence even that he was at the Palo Alto saloon at all, for in this Phelps is uncorroborated, and uncorroborated you cannot believe him. It is contrary to every legal principle or rule of evidence. But Smith's admission, taken in its broadest sense, if true, does not show any knowledge on his part of being accessory before the fact, for it is a simple admission of the receipt of a part ofthe money, made months subsequent to the burning, without reference to the purpose or object for which it was received, and it will not be claimed that the admission, if true, would make him an accessory after the fact. In conclusion I will only say that I have thus endeavored to present to you a plain, brief statement of the evidence bearing upon the case generally, as far as I could, consistent with the very singularposition in which you saw I was placed, without any fault of mine, being left to protect the interests of Smith alone. I have, therefore, referred more particularly to that portion relating to him. I leave the case in your hands, confident that you will give it such attention as its importance demands, and with such assurance in my own mind I have no fears for the result. MR. SEWARD. MAY IT PLEASE TIIE COURT-GENTLEMEN OF THE JURY:-This is Detroit, the Commercial Metropolis of Michigan. It is a prosperous and beautiful city, and is worthy of your pride. I have enjoyed its hospitalities liberal and long. May it stand and grow and flourish forever. Seventy miles westward, toward the centre of the Peninsula, in the County of Jackson, is Leoni, a rural district, containing two new and obscure villages, Leoni and Michigan Centre. Here, in this dock, are the chief members of that community. Either they have committed a great crime against this Capital, or there is here a conspiracy of infamous persons seeking to effect their ruin, by the machinery of the law. A State that allows either great criminals to go unpunished or great conspiracies to prevail, can enjoy neither peace, security, nor respect. This trial occurs in the spring-time of the State. It involves so many private and public interests, develops transactions so singular, and is attended by incidents so touching, that it will probably be regarded not only as an important judicial event in the history of Michigan, but also as entitled to a place among the extraordinary State trials of our country and of our times. Forty and more citizens of this State were accused of a felony, and demanded, what its constitution assured them, a trial by jury. An advocate was indispensable in such a trial. They required me to assume that office, on the ground of necessity. I was an advocate by profession. For me the law had postponed the question of their guilt or innocence. Can any one furnish me with what would 11* 162 have been a sufficient excuse for refusing their demand? Hoc max. ime officii est, ut qaisquam maxime opus indigeat, ita ei potissimum. opitulari,* was.the instruction given by Cicero. Can the American. lawyer find a better rule of conduct, or one derived from higher authority? A word, Gentlemen, on the origin and progress of this controversy-not to excuse the defendants nor to arraign the State. Fifteen. years ago, Michigan attempted to stretch a Railroad across the Peninsula, from shore to shore. It was honorable even to fail in so noble a design. An imperfect road was built, reaching from Detroit to Kalamazoo, and was traveled by a, few slothful engines.'The State conducted it, as the State conducts every thing, with conciliation and kindness toward the people. Necessity obliged the State to give the enterprise over to a corporation, which speedily extended the road to the western waters and brought it into a perfect condition. Engines increased equally in numbers and speed, and the road became a thoroughfare alike useful and important to the citizens of Michigan and the whole country. This public gain was at, tended by the usual conflict between the corporation and citizens, about routes, titles, prices, stations, and property unavoidably taken, injured or destroyed. The.regions through which it passed were newly opened. Their inhabitants were settlers, and settlers are generally poor. Their farms were not fenced. Public roads, as well as public lands, were habitually used as ranges for pasturage. Cattle, often the settler's only convertible property, were frequently destroyed. The change was sudden and abrupt. The corporation refused to pay damages; the settler insisted on them. Litigation ensued, and failed-to settle the contested claim. The corporation offered half price, as a compromise. The settler regarded this as a concession of the right, and insisted on the whole. Jealousy of wealth and power inflamed the controversy. Occasionally a settler retaliated, and ultimately several united in committing trespasses. The corporation invoked the legal tribunals, but failed for want of evidence. The controversy became embittered, chiefly in Jacksonl County. On the night of the 19th of November last, the freight depot at Detroit took fire and was reduced to ashes. No one dreamed, or ever would have dreamed of an incendiary, had not a pub lic outcast, lured by the tempting rewards of the corporation, conceived the thought of enriching himself by charging the crime committed here upon persons in Jackson county, obnoxious for trespasses committed there. He secretly gave body and form to that suspicion; and on the 19th of April last it resulted in the alleged disclo-: sure of a long concerted, profoundly contrived, and deliberately executed conspiracy, by citizens of Leoni, for the entire demolition of the rails and structures of the Michigan Central Railroad. Thus it is seen, that the State, by neglecting to provide for the consequences of the sudden change cf its policy, caused its citizens "to stumble in their ways from the ancient paths, to walk in paths,. in a way not cast up." *The clear point of duty is, to assist most readily these who most need assistance.. 163 There has been a wild and fearful conflict. On one side, unbridled, licentious speech, retaliation of private wrongs upon the body politic, by reprisals, reckless of condition, sex or age, and of distinction between the offending and the guiltless; on the other, a corporate police of mercenary spies, haunting and pursuing the steps of all who were exposed to their suspicion or their malice. Secret accusations were carefully compiled by scribes and verified by oaths before magistrates, with the carefully studied and profoundly concealed purpose of obtaining in some way, evidence enough to sustain an accusation against citizens of Leoni, of some crime or crimes for which they could be tried away from Jackson county. - When all was matured, an indictment was speedily found against.Abel F. Fitch and others for burning the depot at Detroit; another for burning the new depot which had arisen in its place; another for burning the depot at Niles; another for burning the depot at Marshall; another, in the U. S. Court, for manufacturing and passing counterfeit money, and still another for burning public mails. Civil actions were simultaneously brought against the defendants. Bail,. in frightful sums, was exacted in each of these actions and on every one of these indictments. Able and sympathising friends were ready to become bound; but the wealth of Jackson county could not meet. the large demand; and the defendants, ever since, have been held" fast as in a cage of iron. The corporation employed ten lawyers among the most eminent within the State; and assuming the direction of the prosecution, and defraying a large portion of its expenses, has poured forth, through the lips of its witnesses, the compiled volume of secretly gathered accusations. The prisoners have come: daily into Court, to encounter these accusations; and have returned at night to confrorit pestilential disease in the jail. The press of Michigan received the disclosures as true, and proclaimed them to the world. The press throughout the whole country, accepting the disclosures, responded in expressions of horror to what it regarded as evidence of a universal demoralization in Michigan; and demanded immediate punishment of the accused, with a restoration of the earlier and more rigorous penal code of the State. Meanwhile, death, by removing'the lowest and the highest of the alleged offenders, has invested the transaction with the dignity of tragedy. Reaction has come, and with it division of opinion and of sympathy. It is a strife between a corporation and the city of Detroit on the one side, and the county of Jackson on the other. The question is vehemently discussed, whether Abel F. Fitch died a felon or a victim of cruel oppression. Opposition to the corporation, on whatever grounds, confining itself within legal limits, of course gains strength by moderation. Corporate wealth cannot long oppress the citizen in such a country and under such a government as this. Your verdict against these defendants, if it' shall appear to be well grounded upon the evidence, will abate a rapidly rising popular commotion; but, if it shall not be so sustained by the evidence, a people who make the wrongs of each one the common cause of all, will pick strong matter of wrath out of the bloody finger ends of a successful. 164 "ispiracy. You have discrimination, candor and courage. You Gave need to exercise them all. You cannot escape present censure, whether you find vhe defendants guilty or innocent. But if your werdict be a truthful one, it will find its vindication in history. *aentlemen, I want a clear understanding of what we are about,,f what we are trying. The clerk has read a description of it from i minutes every morning. Let him read it once more. [Here the Clerk read a summary of the indictment.] There. Gentlemen, you see that it is a case of Arson that we are trying; nothing more, nothing tfferent. This certainly is not what the world supposes we are about. The world thinks we are trying a case of conspiracy; but the world has been misled, it is at fault. The clerk shows us, and I hope the world will now take notice, that the indictment requires an answer to these four questions and nothing else: 1. Did the defendants here on trial, personally burn the depot at Detroit, on the 19th of November last in the night time? 2. Did George Washington Gay burn it? and then, 3. Did they hire and procure him to burn it? 4. Did they, after the fire, with guilty knowledge, harbor and.iataitain Gay?'There is no proof, and no claim is made for a verdict, against the -~efendants on.either the first or the fourth of these questions; there-:fore, you have to answer only the second and third questions. I I&h I could go at once to the discussion of those two questions; but prudence forbids. Near a month was spent in receiving evidence Df felonies and misdemeanors in Jackson county, out,of your jurisdiction and foreign from this indictment. I must review that evi-.Aence. It was received under a promise that it would prove a con-.spiracy by the defendants to destroy all the property and structureffthe company andso including a design to burn the depot at DeIt was in vain that we opposed the offer of that evidence. In vain Me said it related to crimes that, even if committed by the defendants, could not be proved against them under this indictment-that if they burned it, or procured itto be burned, it was no matter whether hey conspired to do it or not-that if they neither burned the depot aior procured it to be burned, then they could not be convicted here,:een though they had conspired; that at least the proof of these alleged felonies ought to be rejected until after the existence of such conspiracy should have been established. The Court overruled us, as you must assume, rightly, and we must for the present acquiesce. *:So the proof came, tumbling in, helter skelter, and we must now re-aove it out of the way. Let us understand clearly what is demanded of the defendants in regard to'this portion of the case. We are to show you, not that the alleged trespasses were not committed, nor that the alleged meetings were not held, nor that the alleged menaces were not uttered; but that all the trespasses, meetings and menaces which have been proved do not establish the fact of a conspiracy by the defendants,. destroy all the property of the Michigan Central Railroad, nor 165 even to destroy the depot at Detroit. When this shall have been demonstrated, this question of conspiracy will clearly appear to h a false issue and will fall out from the case. The testimony, under this head, presents: 1. Overt acts;. Meetings.nd consultations; 3. Menaces and declarations by defe. — dants. In examining these several classes of evidence, we will apply two, principles, viz: 1. Whatever does not lead at all to the conclusion that a conspiracy existed must be rejected; 2. Whatever looks th. way, and yet may easily be.explained on a hypothesis different froma that of conspiracy, must also be rejected. I. Overt Acts. I divide these into two classes: 1. Those whics were committed by persons not now identified and which were attended by circumstances which remain unexplained; 2. Those which were committed by persons claimed to be identified as defend~ ants and the circumstances attending which are explained,. 1st. Trespass. Stones were thrown at the cars on their passage;. at a time not specified. Alonzo Holmes says "I was confined at home. They came in and said the cars'had been stoned." This i' all. The testimony charges nobody with the assault. The fact is. proved by hearsay only, which is no proof at all. 2d. Trespass. A second instance is proved by Levi Carter. This occurred in June,'49, fifteen rods east of Leoni. The witness says. "that stones were thrown, that he put on the breaks, that he heard the stones strike the cars, that the passengers screamed, that a lady handed him a stone that had fallen in her lap, that a gentleman was. struck in the breast and severely hurt." This evidence charges nebody; that is, it charges everybody and therefore charges nobody. 3rd. Trespass. Proved by the same witness. This occurred aism near Leoni village. The witness says "stones were thrown fromi bushes by eight or ten persons. One stone, I think, struck the engine." And that is all. 4th. Trespass. An assault of the cars by stones, proved by Johrn H. Dexter. "I was sitting in my room. The cars came along. I heard glass rattle. I went down and out. I told Filley that stones had been thrown into the parlor. I found Fitch, Filley and Corwin out towards the railroad. The'Price boys' had been there before I went to bed. There was glass on the track, next day." Gentlemen, you know that Fitch, Filley and Corwin, all lived hard by. It is true they may have thrown the stones at the cars on that occasion; yet it is equally true, that other persons, and not they, may have committed the assault. It is certain that Mr. Dexter did not participate in it, but went out from curiosity. Fitch, Filley and Corwin may have gone out from curiosity also. The'Price boys' may hare remained after the witness went to bed, and may have thrown the stones on that occasion; and on the other hand, they may have gone home and not have thrown the stones. It is not proved, then, that all the defendants named threw stones; and if it be inferred that somse of them committed that trespass, we cannot distinguish between theguilty and the innocent, and therefore in the judgment of the law ak are guiltless. 166 5th. Three instances of assault of the cars by stones, are proved by William Clark. These are probably three of the cases concern~ing which the witness Wollivar has testified. If they are the same, we shall find the explanation of them in his evidence. If they are different and distinct transactions, then we know not who committed ithe trespasses, nor in, what circumstances they committed them, and therefore they may be dismissed from our consideration. 6th. The next fact consists of menaces of an assault by stones and guns. Hiram Shearman and John B. Cochran testify that on one occasion in the night time while they were lying in wait as spies, "two men came out of Filley's house and walked along on the track. One of them whistled. Afterwards a third came out with a gun and bayonet. They spoke of tearing up or of widening the track. They said the cars run so slow we can do nothing; but if we can do nothing more, we can stone them like hell; and afterwards the witness heard the report of two pistols." I reserve comment upon the value of this testimony, as affected by the character of the witnesses, they being spies and informers: and remark at present, that the transaction, having been mysterious and having been observed in the dark, is probably exaggerated. But if it occurred, as has been described, then we know not who the two men were who came out of the house unarmed, nor which of them gave the signal, if the whistling was designed as a signal, (which is quite uncertain,) nor yet who the bandit was who was thus "doubly armed," nor which one of the ruffians it was who spoke of tearing up the track or widening it, nor which one consoled himself and his associates by the seasonable rehflection that if they could do no more they could stone the cars, nor which of them fired the pistol, nor whether pistols were fired at the cars or not. The witnesses seem not willing to rely with confidence upon their own senses in that respect. But if we knew all this, it would still remain true that these three men are not identified as defendants in this cause, that their conversation implied no concert nor agreement with any other person toicommit an assault on that occasion, much less any concert or agreemen to commit any assaults or depredations elsewhere and on any other occasion. They may have been banded together by previous conspiracy: but, on the other hand, they may have been only accidentally associated. This transaction therefore throws no light upon the issue of the alleged conspiracy. 7th. Trespass. An assault upon the cars with guns, proved by Wm, Clark. This occurred in June,'48. He says "the passenger train was fired upon, but without effect, east of the marsh at Michigan Centre, four or five or more guns were discharged, the feed of;the engine was marked by a ball;" but neither this witness nor any other hlas identified anyone of the defendants as having been engaged in that assault, or having any knowledge of it either before or afterwards. They are therefore not responsible for it, and the testimony leads to. no conclusion concerning the existence of the alleged conspiracy. Sth. An obstr'uction of the cars at Michigan Centre, at a period.:nmot specified, is proved by Wm. Clark. "Pieces of timber were 167 ifound on the track, and were brushed off by the brooms," and that is all that Clark knows. His evidence charges nobody in particular, and of course affects nobody. I notice here, to avoid misapprehension, an allusion to a mail car, which is alleged to have been burned in June,'48. The only testimony on that subject is given by Wescott. The transaction is alleged to have taken place west of Jackson. This was beyond the actual bounds of the alleged conspiracy, or at least beyond the limits of the vicinity in which the defendants lived. Wescott stated the fact only upon hearsay, and even that hearsay gives us no information showing who burned the mail car or what were the circumstances of the crime. Here then, gentlemen, are seven assaults on the cars with stones,'one demonstration against them with a gun or pistols, one assault with guns, one obstruction with timbers, and one alleged burning of a mail car-in all eleven outrages. They are undoubtedly to be condemned. The actors in them ought to be and I hope will be detected and punished; but we have no proof that these outrages were committed by all or by any one or more of the defendants on trial here. We have no knowledge of the circumstances under which they were committed. We know that they were criminal, but we have no evidence that they were preconcerted nor that they were connected with each other; still less that they were connected with any purpose of burning the depot at Detroit or any other depot. On the principle, therefore, of rejecting'such evidence as leads to no conclusion concerning the existence of the conspiracy alleged, I claim that these transactions be laid by altogether in the consideration of that question, or, at least, that they shall weigh no more than successive demonstrations of malice and guilt occurring within the region where the defendants lived. Icome next to consider Overt Acts in which defendants are claimed to be identified as offenders, and of which the attending circumstances are given or claimed to be given. Of this I notice, first the breaking of a hand car as alleged by the witness Horace Caswell. He states it thus: Filley, in May'49, wanted to borrow a hand car of Miller, agent of the Company, to go to Leoni; Miller refused. Filley said that a hand car should not stay at Michigan Centre, it would be broken every night. Caswell adds that,' a hand car was found broken in the morning. Fillev, who had gone out before day light, returned and asked who they laid the breaking of the hand car to." I answered "nobody." He replied "never mind; the manwho broke it knows who did it, and he probably is the man who lives nearest to it." Although I think this witness will befound unworthy ofcredit, I assume, for argument's sake, that this transaction occurred as proved, and I grant, also, that Filley admitted sufficiently the breaking of the hand car. Nevertheless it was an act of peevish, personal retaliation for a present unkindness. It proceeded from that act of unkindness. It had no origin before; certainly not in any combination with any other party. It had an immediate object and end-retaliation for that unkindness. Nobody advised it be 168 forehand, nobody had any knowledge that it was to be committed, nobody knew when it was committed nor participated in the trespass; nobody knew of it nor approved of it afterwards. The act was unjustifiable but Filley alone was responsible for it. He was responsible elsewhere not here; in another way, not in a trial for arson. It is simply absurd to claim that this is evidence of a plot or conspiracy between Filley and other defendants to burn the depot at Detroit six months afterwards. 2. An obstruction of the railroad late in'49 or early in'50 claimed to be proved by Isaac, S. Smith. He says the "cars had stopped at the White Bridge by reason of the obstruction of a mud-sill, as I supposed. I went down with Marsh, Terrill, Earl and Grant." Terrill and Grant are defendants. The proof does not show that the cars were obstructed by a mud-sill. If that was the case, Terrill and Grant, the only defendants implicated, certainly did not lay the mud-sill on the track. But Smith says farther that, on returning from the railroad, Terrill fell behind, and that he (Smith) saw Terrell putting a piece of strap rail on the track. Marsh says that Smith pointed out to him the strap iron lying on the track, and he saw Terrill walking away from it. You remember, gentlemen, that the track of the railroad was strewed with broken pieces of the flat or strap rail. It may well be doubted whether Smith did not mistake what Terrill was doing. These broken straps lying about the track were liable to be thrown upon it, by the cars when passing. Such a piece of iron could not throw the cars off nor impede their motion. But if that were the case, the mischievous act was one of sudden or, at least, immediate impulse. It was Terrell's own act, and no other person was concerned in it at the time, nor before, nor afterwards. 3. Amos Van Valen and George Knox relate, that on a summer afternoon, when they were driving their cows near the railroad in the vicinity of Marshall, they saw Dr. Ebenezer Farnham, one of the defendants who resided at Jackson, 40 miles distant from Marshall, but who was then at that place, walking on the track and swinging a piece of strap iron for the purpose, as they supposed, of knocking out the wedges. They described the motion of the Dr.'s arm in such a manner as to leave no doubt that they mistook his cane for an iron bar, and its playful motion for a'trespass. However that may have been, the defendants even with an iron bar, under such a motion, could not have displaced a wedge that would not have been shaken out by a passing engine. 4. The prosecution dwell upon the burning of a culvert east of Filley's house, in June, -'51, proved by W. P. Stanton. He says that he was at Filley's, "that Mrs. Filley come in and gave the alarm that the culvert was on fire. Stanton and Fitch went up to see t. Stanton proposed to get water and put out the fire. Fitch, with his usual smile (for he was always pleasant to me) answered,' you will have to go out ofthis town to find anybody to put it out.'" Fitch's remark certainly does not show that he or any other person fired the culvert. It was a suggestion naturally arising from the aggravated 169 state of public feeling in that town, but it proves no previous knowledge nor design on the part of Fitch, much less of any other defen — dant. The transaction, however, was one capable of being perverted to the use of the informers, and so it was noted in the diary of Phelps and Lake, to be the subject of admissions or declarations made by the defendants. Lake says that Phelps asked Fillev how it was done. Filley replied "we can say the wind blew the rails in — to the culvert and the engine dropped fire upon them," but Lake informs us that Filley said that the culvert was burned one or two days before his conversation with Filley, that is to say in Feb.'51, whereas the culvert was burned in June'50. Phelps stumbled into the same error. He says "we talked about the culvert that was burnt. Filley said the wind blew the rails into the culvert and the engine set them on fire, and Champlin said if they lived there would be more offsuch accidents." But Phelps speaks of the accident as having occurred while he was gone to Niles in March,'51, and he locates the burning culvert, not at Michigan Centre, in sight of Filley's house, but at Leoni, four miles distant, where it most certainly did not occur. These contradictory admissions or declarations leave the transaction still more harmless than it was without them and certainly it is of no value in the present case. 5. A pile of/lumber near the storehouse at Michigan Centre took fire during the last summer. John H1. Dexter testified that he was in his room up stairs in Filley's house; that he heard some one come in, as he thought, barefoot, through the house below, towards Filley's bed room; that twenty minutes afterwards, hesaw the fire; that he called Filley and told him that Grant's house was on fire; and that Filley and he went out to see, and Filley turned round and said " it is only a board-kiln; let us go back or some of the railrord spies will see us." Wm. H. Hudson testified that he fonnd naked foot prints about the board-kiln in the morning and he thonght they corresponded to Filley's foot. Hudson asked Filley if he burned the lumber. Filley replied "there shall be no fence made till they settle with me for the land." Isaac Minkler says that " Filley spoke of the accident and said the lumber took fire, that he smiled and seemed glad of it." I will not speak of the danger of convicting men upon smiles and seemings, and upon inferences from indirect admissions; but will grant, for the sake of argument, that Filley fired the lumber which had been deposited there to build a fence, for the purpose of obliging the Railroad Company, to pay him for the land to be fenced; and then I say that the act was a secret misdemeanor. It was his own solitory act, resulting from his own individual impulse, committed for his own improper purpose of interest or of revenge, without accomplice, and without consultation or concert with any other defendant, and it therefore excludes all idea of connection with the alleged conspiracy. 6. Jacob Woliver describes an attempt to obstruct the cars near Michigan Centre, in September,'50. I and Corwin went to Fitch's yard and got an old mill iron that was lying there. We laid the bar 170 in the frog of the switch. The cars did not run off. Corwin proposed it, saying "we will throw them off and keep them here tonight." The next morning Fitch said, "you must not take anything from my honse or they will suspect me. Take anything else you can find, but nothing from my house." Corwin is a defendant and if this statement is true, this trespass originated in his own solitary suggestion. No other defendant was an accomplice. It was unpremediated even by Corwin and Woliver. Fitch's knowledge of it was acquired the next morning and no other defendant ever knew it until the tranaction was proved in this court. Fitch's rebuke is evidently perverted so as to imply a pleasure in such depredations; but even as it stands, it effectually disprovea concert in the trespass and that is all that is necessary for the present purpose. 7. An engine, the Rocket, was thrown off at Michigan Centre about the 28th of October last. Sherman says, "I asked Corwin what was fhe matter. Corwin answered that Spaulding had said to him,'Well, Bill, you have run us off this time,' and that Corwin added, I'll learn old Spaulding not to insult me. We threw them off and mean to give them hell right along for a month. I'll let old Spaulding know that there will be more done for a month to come than there has been for a year past." The word weis dwelt upon by the prosecution, but what does that "we" mean? If any body, it means, besides Corwin, Woliver and Sherman who are not defendants; that is, for the present purpose, it means Corwin alone. The threat is Corwin's only. The "Hell" threatened in that vocabulary word, so far as it has been explained here meant of obstruction of the cars and assailing them with stones or guns in Leoni and its vicinity and comprehended no more. By no fair implication can it be made to indicate the destruction of railroad depots at distant places. The threat was passonate, turbulent, malicious, felonious, fiendish if you please, for I do not mean to palliate the misconduct of any of these defendants. Nevertheless it indicates no pre-concert in any crime actually committed, nor certainly any ulterior design to commit greater crimes elsewhere, but, only to prosecute similar offences at the same point of conflict 8. We have next a baffled design to detach some cars from the freight train, near Michigan Centre, in November, 1850, for the purpose of producing a collision between the part detached and the incoming passenger train. Sherman says, "I went to Terrill's store. A freight train came along very slow. Corwin then said,'Let us cut'em off, and the next-train that comes along will run into the cars.' We went up to the cars to cut'em off. The conductor was sitting on the top. Corwin said,' G-d d-n him let us knock him off with a stone,' and looked aronnd but found no stone. Corwin said,'Next time we will go down to the old tavern; there is plenty of brick there, and we will give them hell.'' The crimial and unhuman purpose here disclosed was the unconcerted and unpremeditated thought of the defendant Corwin alone, and therefore the attempt to execute it in the manner described by the witness, furnishes no evidence of the supposed conspiracy. 171 9. An attempt was made to displace the rails east of the marsh, at Michgan Centre, in September, 1850, according to the statement of Woliver. He says, " Filley asked me to go with him;' am going to give'em hell to-night at the east end of the switch.' This was an hour afterter dark. Filley said, I must look round and see if any one is coming. He tried to get the switch bar loose but failed. He then fixed the bars so that one bar crossed the other, two or three inches. He said he'guessed that was enough. We can do no more and we will go home.' " "His design was to injure the Company all he could, and he'd be damned if he didn't do it." Assuming this testimony to be true, this fearful act began with Filley, and ended with him and Woliver only. The explanation which accompanied it, showed that it was some motive of private malice or retaliation that prompted the transaction. No one else advised it; no one else knew of it. It is a transaction which deserves punishment in Jackson County but it has nothing to do with the case which you are trying here. 10. A lamp was broken in consequence of an obstruction of a culvert, in 1850. Woliver says," we, (Filley and I,) went down west of Fitch's, and placed a tie in a culvert to break the lamp, and a mud sill across the track, and went back to Filley's. Next morningl Fitch told me that he went down to the cars, when they had stopped, and that after the cars got under way, he and Filley got or behind and turned the breaks." Filley and Woliver alone were engaged in this transaction. We learn from the testimony elsewhere that Fitch arrived at home after the obstruction had occurred. The story of the breaks is puerile, There is, I believe, only one break at the end of acar. One man turns it with ease and effect, when the cars are under a slow motion. The cars had only begun to move, and were on an ascending grade. A pressure upon the track;hrough the] breaks could do no possible injury. They could have been used in this case only for a petty annoyance. Dear to Abel F. Fitch as his vindication in this case was declared by him. in his dying hours, to be; dear as it is to the community in which he lived and evermore will be to me, I am glad that this charge, puerile and pitiable as it is, rests on the authority of Woliver alone. How worthless that authority is, we shall have occasion to see in the sequel of this argument. 1 1. It is alleged that the cars were assailed with stones on the occasion of a ball which came off at Leoni, on the I th of August. The charge rests onthe testimony of Woliver alone. He says, "E. J, Price, L. Champlin, Hewitt Davis and I were in the hall-room. Price said,,' The cars are coming; let's go and stone them.' We four went. Price and I together, Champlin and Davis further on together. Stones were thrown. I threw none, but I heard the rattling of the stones against ths care." Hewitt Davis says that he attended the ball; that no such transaction occurred; that he was in the arbor in which the ball was celebrated, and neither he nor Price nor Champlin left the ball for any such outrage, nor proposed to do any such thing. Ira W. Kellogg was door-keeper on that occasion, 172 and he proves that Price, Champlin and Davisdid not leave the balli room, when the cars passed. These witnesses agree that Wolivei was in a state of absolute drunkenness in the bar-room during th( whole night, which rendered him unable to move, and that he neve: entered the ball-room at all. This aggression, then, must have beet an invention of the witness Woliver. Where witness is found t( have stated a deliberate falsehood in regard to one material fact, thl law applies the rule, Falsus in uno falsus in omnibus, and we art relieved therefore from all obligation to account, in this cause, foi any crimes resting upon the evidence of Woliver alone. 12. Woliver described an assult of the cars with stones on and ther occasion, much in the same manner. He says, "We wern together —the Price boys, Corwin and I. Corwin said, the cars arn coming; we will go and give'em hell.' We threw stones at the car| from Filley's orchard. I saw glass along the road the next day.' If the fact of this assault is to be assumed, then I have to remark onli this: that it implicates Price and Corwin-that it was an unpreme diated and unconcerted act, obviously disconnected with all othe outrages which preceded and followed, and it furnishes-no evidence in support of the pretended conspiracy. 13. The cars were again assailed with stones, according to Wolj iver, in September, 1850. He says, "the Prices, Corwin and I weri together at Filley's house. The Prices and Corwins proposed t(t stone the cars"-(Woliver is always innocent! but he yields wittl wonderful ease to seduction). " We went beyond Fitch's garden and there threw stones. We heard glass rattle and I found glass there the next day. The transaction is subject to the strictures bej fore made. 14. An engine, the Goliah, was thrown off the track at Leonij Sherman states that Corwin said when the Goliah was thrown off h went home fearing it had'nt been done up right, but by morning he found it had been done up brown. H. H. Bingham says that he was traveling from Michigan Centre to Grass Lake that night; twd men passed him in a wagon. One of them spoke to the other aboun being too late for the cars. He recognized Corwin's voice. He thought the voice of the other was Williams, but feigned. He re' cognized the person of neither. If it were Williams, and he spok< with a feigned voice, then the voice must have been unlike his; sol if the voice was unlike that of Williams, then it furnishes no evidence that Williams was the person who spoke. Williams is not proved to have been present at the throwing off of the Goliah or to have had any connection with it. Corwin's action rests on his alleged admisl sion. This, like his other crimes, was his own, and fails to cast an) responsibility on the other defendants and equally fails in giving sup. port to the alleged conspiracy. 15. One of the most important incidents in this strange and pain ful history is the burning of the wood pile at Michigan Centre Shearman relates it thus, "I was at Jackson. Corwin and Holcom l were at Morrison's grocery. They told me they had laid a plan to get some flour; that perhaps I might not fall in with them, but if 1 173 lid not I must keep still. We will go to night and take three barels of flour from the cars. We will set the wood pile on fire to divert the spies and take the flour while the fire is burning." The hree then returned to Leoni. Holcomb and Sherman put up Corvin's horses while he went and examined the cars. "Corwin came )ack and said it was all right. One of the doors of the cars was ialf open. E. J. Price afterwards came up. Price proposed to drink.'hey drank at Filley's. Filley asked me if I was going a fishing. said yes. Corwin got an axe. Price said he hadn't the first d-d hing to fight with. Filley handed him a knife and said.he hoped hey would have good luck and if they should want anything to drink vhen they came back there was a bottle, and, if that was not enough hey knew where the key was. Corwin, Price and Sherman set the vood pile on fire and were arrested in pursuance of an arrangement )reconcerted by Sherman with the agents of the Railroad Company, Sherman added that on their way to Michigan Centre, he asked what;hey were going to do with the flour? Corwin said, as big a man as Fitch is I'd as soon let him know it as not. He will keep me along vith it and out of it." I exclude for the present, for an obvious reason, the evidence of Phelps, involving admissions alleged to have been made by Fitch ind other defendants, all interested in screening Corwin from this,rime. That will come up more properly in another part of the case. Standing then' upon the testimony of Sherman alone, it is apparent that this crime was Corwin's, and his only; that it was conceived by him, for his own felonious gain. Holcomb and Wells are not deFendants. Price went into it on a suggestion at the moment. There is no reason to suppose that Filley knew Corwin's purpose, except what is found in the suggestion of Price, that it might be necessary to fight. I do not know whether fishing at Michigan Centre, in those times when railroad spies abounded, was supposed to require those who practised it to go armed, though I can well understand that they may habitually visit a tavern on their way out and on their return. But ifFilley's remark connected him with the transaction, then the crime rests with him, Price and Corwin. It was unconcerted. No other defendant was consulted, nor was it connected with any other crime before or afterwards. Corwin's remark, that he would not be afraid to let Fitch know it, might lead to an unfavorable opinion of Fitch's integrity, but nothing more. But it may have been presumptuous on the part of Corwin. It manifestly proves in the most conclusive manner, that Fitch had no knowledge of the intended crime, and therefore places the transaction out of the evidence in support of the conspiracy. 16. The "Gazelle" engine was thrown off the track near the dry marsh at Michigan Centre, Aug., 20th, 1850. Woliver, as usual, was hero and historian. "I was at'Price's haying for Filley. Filley came up and proposed throwing the cars off." (Of course, he did.) "We took an iron bar from Penfield's saw mill, and an axe from Price's-Filley, the two Prices and myself. We broke the chairs, moved the track aside, and threw off the western train instead of the 174 eastern. I went back to Price's. They said no matter how many were killed. Damn you, don't you say a word about it." This transaction, then, if Woliver is to be believed, was' suggested by Filley, adopted by the two Prices and Woliver, and; executed by them, all within the space of two hours from its suggestion. Only three defendants were engaged in it, and they suddenly, without the participation or knowledge of the other defendants. It was a desultory crime, and black and terrible ds it was, was nevertheless disconnected with any other transactions, whatever their character might be. It not only furnishes no evidence of a conspiracy, but, as explained,, repels the idea of such a conspiracy as is alleged. But this transaction of the Gazelle re-appears in two other versions. First, there is an attempt to connect the defendant, Willard W. Chaplin, with it. Taylor produces a paper which he says was found sticking out from under some wood in the culvert when the transaction occurred, which is marked, "The Price Boys Warning." That: extraordinary paper is in these words: Michigan Centre, Aug. 19, 185-1. MR. PRICE-Sir-I want you to be at the mild stake, this side Leoni, on Monday night at about half past 9 o'clock. We intend to run the cars somewheare's about there; be sure and be there at the time. By order of the Committee, W. CHAMPLAIN. It was permitted to be read, upon the opinion expressed by Holmes that it was in the hand writing of the defendant, Willard W. Champlin, but at a subsequent stage of the trial,. Holmes, who appears to be an honest and a truthful witness, came upon the stand and declared that after farther examination of the writing, and comparison of it with other known writings of the defendant, he was of opinion that it was not; that he thought it resembled more the hand writing of the witness Taylor, who produced it, which he knew well, than it did that of the defendant Champlin. Michael Coy, who knows Willard Champlin, declares that it is not his, as indeed it manifestly is not, since the signature, which is without any affectation' or disguise, differs both in style of execution, and in the Christianand surnames assumed. I do not press the testimony of James: Champlin on that point-he was evidently illiterate and imbecile. The paper, then, in the first place, is not in evidence, being disproved by the same witness whose testimony procured it to be admitted. Secondly, it is a forgery, and being such, is pregnant with warning against yielding credit to the tales of venal and prostitute informers.. It is needless to remark, that it is to be presumed that Champlin would have been himself present at the time appointed, if he had, by order of a committee, or otherwise, sent this notice to the Prices; but Wolivar proves not only that Champlin was not there at all, but that the proposition to throw the cars off was made to the Prices by Filley, as a new one, not on the day before the transaction occurred, but on the same day, and within an' hour before it. But the throwing off of the Gazelle, in the language of these spies, has furnished. 175 a basis tpo predicate a plot upon, and this has been artfully done by' Wescott and Lake. Wescott says, that on the Sunday when Sacrider had his duck pie at Filley's, he overheard Williams ask Filley for money, and Filley replied, "1 thought the Gazelle matter was settled." Williams made some reply not heard, whereupon Filley said, "Fitch has paid you,$12, and I have paid you 10, and I'll now give you 3, if that will'make it right;" and thereupon Filley, after obtaining from Wescott change for a $5 bill, paid Williams $3. Lake, et a far distant period, procures and offers confirmation by saying that Williams gave him a history of the throwing off of the Gazelle; that he said that" Fitch planned it; that Filley, Wolivar and Corwin executed it; that he, Williams, lent them the bar with which to break the chairs and remove the track, and then went to bed so as to be able to swear that the Prices slept all that night with him." A word or two will dispose of this joint invention. If Williams earned $25 by going to bed and leaving others to commit the crime, how much were they to be paid who performed the labor and incurred the entire danger? Again, Wolivar, /who was of the party, excludes Fitch altogether from a knowledge of it, and excludes him as well as Williams and Corwin from all agency in it, and says that he himself got the crowbar which was used, and that he got it not from Williams, but from Penfield's mill, which was impossible, if the history said to have been given by Williams was trne. Gentlemen, the long discussion which I have bestowed upon this one of many incidents in the history of this pretended conspiracy will not be lost, if it shall serve as a caution that the way of thisprosecution has been traced by fraud and cast up by perjury. 17. I come now to one of the most remarkable portions of this most extraordinary case, that of the alleged delivery of pistols by the deceased defendant Fitch from his bed room window. Joshua Wells testifies that he and Miner T. Laycock, one of the defendants, "received pistols from Fitch at his bed-room window, in the month of August, 1850." He says, "it was just dark, and Fitch after delivering the pistols, went into a shed and there- delivered to the witness Caswell a rifle pistol and told them to go down close to the cars at the dry marsh and to get as near the engineer's house as they could." Caswell asked Fitch if the pistols were loaded, and he said they were and told them to shoot right through the engineer's house, and Caswell said that he afterwards tried with a ramrod the pistol which was given him, and found it loaded. Caswell says, " Fitch handed me a rifle pistol in the shed." Laycock and Wells each had a pistol. Fitch wanted us to go out near the marsh and shoot at the engineer.. I asked if the pistols were loaded. He said, "yes, with ball." Deloss J. Ilolden says that Fitch once admitted to him, in speaking of this transaction, that he gave Wells and Laycock pistols, but they were loaded with powder only, to frighten people in the cars or on the engine. Elizabeth Hargrave says that Laycock told her, in speaking of the complaint against himself, that they had got pistols or guns out of Fitch's window; that Fitch told them they could shoot, but they did not shoot." Barnet Culver says that Laycock 176 -said, in speaking of some declarations imputed to him, that all he had said was, that Fitch had handed him and two others pistols out of the window and said "shoot'em, damn'em;" but they didn't shoot. Gentlemen, you will take notice that Wells and Caswell, before coming here to testify, were taken into employment by the R. R. Co., at salaries, I think, of $15 a-month, and that Laycock was taken into their service at the same time, but was afterwards discharged by the Company and then charged as a defendant in this indictment. You will take notice of another fact. Caswell says the rifle pistol delivered to him is one which Laycock had before borrowed of Moulton. You will remember also that Fitch had been a Captain of dragoons, and that his pistols and, sword were kept always upon the desk containing his papers, resting upon the safe in his bedroom. You will now oppose against the evidence given by the prosecution, the-fact that Caswell is not only an accomplice taken into favor and rewarded by the Company, but that he stands self-impeached; First, by the manner of giving his testimony. After giving a succession of employments that he followed, changing so often as to prove himself little better than a vagrant, he said "that he went to cutting grubs for a darky." Being pressed for an answer who the darky was, he replied "`I have been fooling now, I didn't cut no grubs." He denied that he had been charged with arson in the place he left before coming to Michigan Centre, yet he refused to answer whether he had not been examined on a complaint of arson, upon the ground that it would subject him to punishment for a felony. I understood the Counsel for the People to disavow a claim of credit for his evidence. Anson H. Delamater, than whom the State, seems to me to possess no worthier citizen, says that Joshua Wells told him in June last, when speaking of this charge, that he did not know anything against Fitch, that he wished himself dead a thousand times before, he got into thisscrape. J. V. Canner, an equally respectable man, says that Joshua Wells told him, when speaking of the attitude in which he stood as a witness to be examined,',unless I had come out for the R. R. Co., I should now be where they are," that is, in jail under an indictment for burning the Depot. Carmer adds: "I said to him I understand that Fitch requested you to shoot one of the engineers." lie said it was not so, and he never thought of it. As for Laycock, the declarations imputed to him are sufficiently contradicted by the fact, that refusing to testify for the R. R. company in corroboration of Wellsand Caswell, he lost his position in their employment, and took his place among the defendants, and "'is now where they are." You are prepared then, I think, to recur with favor to that touching scene in the trial when Amanda Fitch, the adopted daughter of Abel F. Fitch, she, of whom he said in the very last words he uttered-"poor dear little Amanda, I had quite forgotten her, remember me to her,"I say you will recall with pleasure the occasion, when that child. of only fourteen years, appeared upon the'stand and gave her account of the transaction of which venal informers have manufactuied a tale so full of horrors. "Mr. Fitch was standing by his desk. Laycock and Wells cameto the window which was open, Laycock said "Fitch, I want to borrow your pistols.' Fitch took them down from the desk, wiped them off and handed them to him. Laycock said "Fitch, I want some paper." Mr. Fitch "asked me to get some paper," and then taking up a piece of newspaper lying by his side, he said, "there is some," and haned it to Laycock. Laycock and Wells withdrew.Mr. Fitch resumed the examination of his account book, then laid it by, took up his flute, sat down in the sitting-room and remained there until a period too late to allow of the occurrence which is alledged to have taken place in the wood-shed." You remember the womanlike firmness and sincerity with which this testimony was given. - You remember how, during hearly half a day, this child baffled the studied arts of the able counsel, in their attempt to entrap her, and to involve her in self-contradiction. I do not dwell upon the attempt to contradict Amanda Fitch by the testimony of Euphemia Coy, on a point which was' irrelevant and trivial, to wit, the alleged assistance rendered to Amanda in preparing her testimony, by her mother. That mother has appeared here, and has been offered to sustain her daughter's denial of such assistance. Gentlemen, you have heard Amanda Fitch's recital confirmed, as it is by Delamater and Carmer, and by the scarcely less than martyrdom of Laycock. Weigh it against the testimony of Wells and Caswell, impeached as they stand by self-contradictions. There is perjury on one side or the other. It is for you to decide whether it is on the informers who sustain this prosecution, or on the part of this child. It grew into a proverb in ancient Rome, that in seasons of public con. fusion a citizen could not be quietly undone, nor could his family escape from being involved in his ruin. The defendant Fitch has been hurled from his estate into his grave.His wife, when she appeared upon the stand a lawful'witness, to redeem his name from reproach, has been refused a hearing because she had become a widow too late. Complete, if you will, and if you can, this-domestic desolation, by stamping the brand of perjury upon the brow of that cherished orphan child; but remember, before you do so, that you and I, among those various excursions which have relieved the weariness of this protracted trial, once visited- together the state prison of Michigan, and that we found there one hundred and fifty malefactors, all of whom were men, and that within those dreary walls there was found not one woman. Thus, there are seventeen overt acts attended by circumstantial explanations, to wit: One breaking of a hand-car by Filley alone, rejected as a trivial, personal and unpremeditated transaction. One obstruction by a mud-sill, and by strap-iron, charged against the defendant Terrill alone, insufficiently proved, and trivial if proved. One like charge against Dr. Farnham, rejected as both trivial and false. One burning of a culvert, rejected because the evidence is insufficient and contradictory. One burning of a pile of lumber, an act of personal retaliation by one of the defendants alone. One attempt to obstruct the cars by placing a spindle in a switch, in which only one defendant was concerned. One throwing the engine "Rocket" from the track, which was Corwin's individual act. One design by Corwin to detach the freight cars, proceeding from sudden impulse, and not carried into 12* 178 execution. One obstruction of the cars west of the switch, by Filley and Woliver, without concert with any other defendants. One breaking of a lamp and obstruction of the cars by a mud-sill, the act of Fil, ley without concert with other defendants. One alleged assault of the cars with stones, at the ball at Leoni, actually disproved. Two assaults of a like kind by the Prices, Corwin and Woliver, acts unpremeditated and without concert. One throwing off the "Goliah," the act of Corwin alone. One burning of a wood-pile by Corwin and Price, to cover a larceny for the benefit of Corwin alone. One, throwing off the "Gazelle" by Filley and the Prices, without the knowledge of the other defendants; and the exaggerated pistol scene at Fitch's house, disproved and rejected. Among these transactions, Filley is compromised in four distinct cases; Corwin in six, and the two Prices in three. No other defendants were connected with them by actual co-operation, no one case of preconcert by any other defendant with the aggressors has been established, not one instance of guilty knowledge by any of the other defendants has been proved, nor has a case occurred among: them all, of an aggression committed in pursuance of a previous design or plan formed or projected, even by the defendants who committed it. You will readily agree that if a conspiracy, such as is alleged by the prosecution, did exist, Woliver, Caswell and Sherman were guilty parties in it; yet you see at once that, although you could convict them of so many crimes committed, by their own confession, you could not for a moment hold an indictment against them charging a previous conspiracy to commit the acts which they have confessed. They cannot be innocent of such a conspiracy and leave the defendants guilty; the defendants cannot be guilty of a conspiracy if these witnesses are innocent of it. The overt acts then, which have been given in evidence neither prove, nor tend to prove, the existence of the alleged conspiracy. Let me not be misunderstood in regard to them. Not only do I rejoice that no human life has been lost nor limb broken,, but I condemn these outrages as atrocious, cruel and inhuman. Their only alle- viation is that they proceeded from passion, andpassion, in individual men, dark and stumbling, is blinder still in masses, where a sense of individual responsibility is lost. But that constitutes no justification. I sympathise in no hostility to the Michigan Central Railroad-in no hostility to corporations-in no hostility to wealth. I rejoice in the completion of every new link in that chain of internal communication, upon which I rely to bind together the ever-changing boundaries of this vast empire. I would indeed, hold corporations as I would private citizens, to the practice of justice and moderation; but I know of no legitimate redress, in a government of laws, but redress by law and by constitutional change of laws. I regret that these aggressions remain unpunished. I trust they will yet be punished, and that the majesty of the law will yet receive its ample vindication. But, it belbngs not to you, nor to me to effect that vindication. These aggressions were committed in a foreign jurisdiction. Our present duty in regard to them is performed, when we have shown that the aggressions which have been committed have no relation to the question under consideration here. The prosecution, Gentlemen, apprised you that, in addition to the 179 overt acts of the defendants,they would give in evidence the fact that numerous,even daily, unlawful meetings were held by them, in which they framed the stupendous conspiracy which is proclaimed to have existed, contrived how and when it should be executed; that in those meetings they agreed upon the aggressions which should be committed, assigning to each defendant his part, arnd that in those meetings they resolved that if they failed to bring the company to their terms, by these aggressions, that they then would effect that purpose by the burning of edifices and structures throughout the whole length of the road. The prosecution alleged farther that in these meetings solemn resolutions were adopted to defeat the administration of justice, by combination, fraud and perjury; and, finally, that in those same assemblies the defendants severally contributed inventions and horrible machines for the work of desolation and destruction in which they were engaged. This was the promise of the prosecution. Days and even weeks were spent in the attempt to fulfil it, and with what result? I cannot descend into a minute examination of the shapeless mass of evidence laid before you to redeem this promise-but I shall call your attention to a few marked and distinct features of it; and upon these I shall challenge contradiction. 1. There was never a concerted nor even an appointed meeting of the defendants. 2. There was never an unlawful assemblage of'the defendants. 3; There never was a meeting or gathering of all the defendants, nor of half of them, nor even of a fourth of their numbers. 4. Those who came together at any one time were never the same persons who came together on a previous or on a subsequent time.Whether the number who came together was greater or less, they came together always in the most public places. They came together in the bar-room, in the nine pin alley, in the street, at the post office, in the day time, and in the early hours of the evening. 5. They came together casually, on occasions of sheer broad publicity, on Christmas, at shooting matches, on the arrival of the cars, at balls, at law-suits. They came together as accident determined, on their way to or from the mill, from the blacksmith's shop, from the village store. Their assemblages, such as they were, were open to all comers, whether village gossips or travellers. There was no tyler at the'door. It stood wide open. These modern'forty thieves' had no'open sesame' nor' close sesame' to secure themselves against intrusion i nor against detectien. They were neighbors who came together,sometimes two, sometimes three, four, six, or eight; most frequently in theonly village bar-room, and the traveller and the laboring man of the village whether white or black, whether in the interest of the Railroad Company or against it, and free admission. There never was a meet-'ing organized, there never was a resolution passed nor a debate opened. Joshua Welts gives you an idea of their conversation on the one subject of common and engrossing interest. "There was something said about the Railroad being a monopoly, that a feeling was getting up against the Railroad Company that would hold against them for a long time, because they hired help very cheap and didn't pay wages enough; thatit had a tendency to render wages low, that he heard not much 180 said about cattle being killed." They planned nothing, neither the burning of depots nor assaults upon cars with stones and muskets. If they discoursed in threats it was in individual, impulsive, passionate,but idle threats. It was just like what often occurs in every village barroom in the State and in the United States. "They talked by squads and drank by platoons." To hold such gathering of citizens to be seditious meetings is a construction forced, false and fraudulent. To present such meetings in a court of justice as evidence of a conspiracy is to conspire against the freedom of the citizen. If then a conspiracy has existed in Leoni, the evidence of it is to be derived elsewhere than from overt acts committed or from deliberations of meetings held there. And this brings us to the proof, 3dly, of individual declarations and admissions. In regard to this class of testimony, I am obliged to confess that the difficulty consists not so much in a deficiency as to quantity or perhaps even of directness, as in the absolute unreliability of the testimony itself. The Railroad Company unable to convince the' farmers of Jackson county that half price was enough for cattle destroyed,and unable to arrest the depredations which were committed by way of reprisal, resorted to a system of espionage. On the 10th of August,'49 they offered a reward of $500 for proof sufficient to convict any person of any one unlawful overt act, past, present, or to come. I am not complaining of this. It becomes necessary to open this system before you for the purpose of testing the value of the evidence which has been procured by it. The Railroad company employed a corps of spies to watch and circumvent suspectedcitizens, paying them compensation, varying from seven shillings and $2 per day or night, to $40 per month. How large that corps was is unknown.: But it numbered one hundred at one time, and no less than fifteen of its members have appeared here as witnesses to sustain this prosecution. Here they are-Phelps and Lake, recently discharged from the State Prison; Van Arman, a lawyer from Marshall;Clark, a member of the legislature from the same place; Cochran and Sherman, laborers; Dixon, a sheriff from Marshall, acting in the charcter of a wheat buyer; Holden and Gillespie, gentlemen; Taylor, an employee of the Railroad company; Woliver, Wells and Caswell, ac-.complices in the crimes they denounced; Wescott, a discharged barIeeper; and Faulkner, a carman. You see that they are called from all the various occupations of society and all the conditions of life, from,the state prison and the brothel' through the classes of merchants and farmers to the sheriff's office, the bar and the legislative halls. The witness Phelps, enlisted among the last, took rank at the head of the'corps, displacing Wescott,'and with him was entrusted with the dispo-sal of the patronage of the company as a broker. Phelps employs lake. Wescott employs J. Wells. Wescott offers J. Tyler a good place "if he will come out for the Railroad Company;" while Michael Coy is told by Phelps that if he will come out and "swear for the company there shall be no lack of money in his pockets." This system was in operation six months. It is no wonder if oblivious memories have been awakened, malicious memories quickened and feeble memories strengthened. All has been activity; all was activity from tee beginning 181'Some tell what they have heard or tales devise, Each fiction stillimprove with added lies." A corporation, enjoying a monopoly of carrying the persons and property of citizens over a great national highway and deriving from it an income exceeding by three fold the revenues of the State, has become, in this season of alarm, a power behind the state greater than the state itself; and now we see the wisdom of a saying of the son of Sirach, himself a'sovereign. Beyond a doubt his own court was infested by a nest of caterpillars like these when he admonished the unwary; "Curse not the king; no, not in thy thought; and curse not the rich even iri thy bedchamber; for a bird of the air shall carry thy voice, and that which hath wings shall tell of the matter." Regarding these witnesses as mere spies and informers, unconvicted of crime, uncontradicted and unimpeached, what is their moral standard in a virtuous commonwealth? Hear what Addison said, for he was not only a moralist but a Secretary of State, "A man who is capable of so infamous a calling as that of a spy is not very much to be relied upon. He can have no great ties of honor or checks of conscience to restrain him in those covert evidence, where the accused has no opportunity of vindicating himself. He will be more industrious to carry that which iggrateful that that which is true. There will be no occasion for him, if he do not hear and see things worth discovering; so that he naturally inflames every word and every circumstance,aggravates what is faulty, perverts what is good, aid misrepresents what is indifferent Nor is it to be doubted that such ignominious wretches let their private passions into these their clandestine iniformnations, and often wreak their.particular spite and malice against those they are set to watch." If this is wise morality, (and it has been universally received,) and if there is sound philosophy in the old Spanish proverb,, bad the crow, bad the egg," we shall be at no loss to appreciate the evidence before us. It is a mountain of falsehood with here and there a grain of truth. When [ look upon the men who occupy the place on my right hand, and recognize among them pioneers of the State, its farmers, its mechanics, and citizens; and then on this legion of spies, and find there on the witness' stand convicts yet wearing the look and the gait contracted in the State prison, and see others come reeking from the stews of the city; I ask myself, can it be real? Does honesty dwell in the penitentiary and crime stalk abroad over the State? Is the city pure and the country polluted? Has truth fled from the hearth of the farmer in the country and taken shelter in the purlieus of the metropolis? No! I am not in Michigan. I am in Venice, where an aristocratic senate keeps always open the lion's mouth, as well by day as by night, gaping for accusations against tle plebeian and the patriot. I am in Syracuse and see before me the dungeon which the tyrant has constructed with cells in which he has imprisoned those he fears, and constructed its walls on the model of the human ear, so that its curious channels convey to him even suppressed groans, and sighs, and whispered complaints. But first, where is the truth of these accusations to be tried? They are accusations of local offences which ought of right to be tried at 182 home where the accused party live, by a jury ofthat vicinage, and not elsewhere nor by a jury of strangers. The accused ought to be at large on bail,to procure the evidence to confront their calumniators; and yet they have been dragged 70 miles from their homes, out of their own county of Jackson, through the intervening county of Washtenaw, and put on trial for local offences, here before a foreign court, by a jury of strangers, in a community which, in judgment of law, is to them a community of aliens and enemies. Nay, more, when sickness has befallen a juror, and when disease has prostrated a defendant in his cell, the prosecution have complained of the cost of delay and vehemently reproached the prisoners because they would not surrenrender almost the only constitutional rights left them of being tried by twelve jurors and by no less, and of being present in person during their trial. Rut I mistake. This is not the act of citizens of Detroit, for they are a humane people. This is not the act of Michigan, for it is a just and benignant commonwealth. It is not the act even of the Michigan Central Railroad Company. It is the act of agents of that corporation who have dared to misuse their powers and to assume the police authority of the State. I know and I feel well assured, that the acquittal of these defendants will be received with satisfaction by the -citizens of the metropolis, and will be approved even by the corporation itself; while it will go abroad with healing on its wings for public discontents pervading the State. We inquire now whether the existence of the alleged conspiracy is established by the admissions and declarations of the defendants: and the inquiry involves the credibility of the witnesses by whom they are proved. Wm. D. Wescott contributes the greater part of the evidence. You recognize in him the early leader of the legion of in-?formers. He was displaced to make way for the superior merit of Henry Phelps. Wescott is rendered a suspicious witness, first, by'his attidude of hireling informer. His testimony begins at the time when he went into the employment of the Railroad Company, in that character, at the rate of $40 per month. He still retains the place and its emoluments. Secondly, he is discredited by his former life.He was indicted for perjury at Mackinaw, and the indictment abated by the death of Dr. Rankin, the piosecutor, who was an eminently respectable man. Wescott alleged on his examination that Dr. Rankin was himself indicted for perjury in preferring the complaint, and that he committed suicide to escape conviction. It was proved by the clerk of Mackinaw that Dr. Rankin was never indicted, and that he died a natural death. 3d. Wescott is discredited by his personal and groundless malice against the deceased defendant Fitch. Mr. Toll and Mrs. Toll proved that Wescott said last summer, that "Fitch was a notorious scoundrel; that he would appear as a friend to your face, and the moment you turned your back he would run a dagger to your heart, and that he would yet see Fitch peeping through the grates of the State Prison." Mr. Tyler declares that Wescott told him that a web was being woven around Fitch that would draw him into State prison. Such is the character, and such is the temper of the witness. He is rendered still more unworthy of belief by his denial of having attered the malicious remarks against Fitch which have been proved. 183 He shows himself equally timid and false. He would have us believe:that his life has been in continual peril while he has been prosecuting his private service in a public cause. But all these perils are proved to have been fabricated and false. Thus he has entertained us with a pretended plot, by several of the defendants, in which it was contrived that he should take a seat at the card table near the window, in Filley's house, and that thd defendants should then assassinate him, by a simultaneous assault with stones through the window. The very heap of stones which was to be used was pointed out by him to a witness, and they probably were deposited there with his own hands. However that may have been, you have seen the spot. You have seen that a piazza some three feet wide intervenes between the window and the high close-latticed verandah. No mortal arm could hurl a stone from the verandah through the window with force enough to'commit an injury. No mortal eye could see through the verandah, nor mortal force throw a stone that would reach through the verandah and the window. But, Gentlemen, you will recollect that Wescott obtained his knowledge of this plot by drawing himself through a hole in the wall and listening to the conspirators through the floor in the barroom. Unfortunately for Wescott's veracity, Mr. L. A. Hildreth,who opened that hole in the wall for the purpose of driving the joints of a water pipe, testifies that itwas lot large enough for a man to enter.Darius Clark comes to the relief of Wescott and testifies that in November last Wescott pointed out the place to him and that it was then as large as now; but Ammi Filley,:Jr., a lad of 14, proves that Clark must have erred in date, because on Christmas Day, when a piece of coin had dropped through the floor in the bar-room, he found it impossible to pass through the aperture to find it. And this child is corroborated by the witness who first opened the aperture at a day later than that fixed by Clark. Wescott described a second peril-that, pursued by an infuriated man with a ferocious dog through the deer park, he plunged to his armpits into the mud and mire of Wolf Creek, and he gives us, for confirmation of that peril and escape, his assertion, that his wife removed the mud from his clothes. I admit that some unknown person lurking on the watch was chased by a dog into Wolf Creek, but I still must withhold my belief that Wescott was the fugitive. I can scarcely believe that a man who would be thus engaged could have a wife, much less that any woman who is a woman would have lent her hand to take a stain from his garments thus contracted. Wescott gives a'touching narrative of a third peril through which he passed. A quarrel arose in the ball alley between one of the defendants and C. Palmer. Wescott represents, or causes it to be proved, that Fitch and himself were standing at the door, looking on upon the strife, and that Fitch afterwards remarked, that, if he had known Wescott: at that time to have been a spy, he would have thrown him in among the combatants that they might have beaten him to death. Unfortunately for the effect of this fearful narrative, it is disproved by Almon Cozier, who says that neither Wescott nor Fitch was at nor near the door of the ball alley, from the time when the controversy began until the combatants had retired to adjust it, as I presume, over a bottle in Filley's bar-room. The testimony throws but a dim 184 and shadowy light over the fourth and last critical escape of the cidevant leader of the band of spies. The Tribune in this city published on some authority, "A leaf in the history of the conspiracy," and it was republished generally by the papers throughout the United States. This leaf revealed the dreadful fact that one of the informers was actually present, in disguise, at a regular meeting of the conspirators, in which it was solemnly resolved to put him to death, and that the job of executing that sentence was put up at auction and sold to the lowest bidder at $100, the bidder reserving to himself the right to decide on the manner of execution, but being bound to perform it within four days. Wescott denied that he had put that report in circulation. William Harsha, one of your your mostrespectable citizens, came upon the stand and offered to testify that Wescott, referring to the publication, by implication confirmed its truthfulness and its application to himself. But the rules of evidence, insisted on by the prosecution and sustained by the court, excluded the testimony. I proceed to examine the evidence of Westcott, promising you that, in the first place, what there is of it that is not contradicted directly or by internal evidence, is worthless; and, secondly, that what has any pertinency is thus contradicted. His testimony is to this effect: that, when he repaired to Michigan Centre, in the fall of 1850, he placed himself on an apparent footing of intimate friendship with the defendant Fitch; that Fitch under those circumstances, gave him a narrative of what "the boys" had done, in 1849; that they had secreted themselves in timbered lands, then rushed out and after the hand-car had passed obstructed the cars; that Fitch said the "boys had stoned the cars, had placed stap-iron between the joints of therails,and mockingly said also,that Elder Limbocker and Priest Foster, committed this depredation; that he had remonstrated with them, but they were hard cases and would not desist; that in speaking of the accident, which had befallen the Gazelle, he said the Locomotive got dry, and ran down to the marsh for water; that he had advised the boys not to throw trains off at the dry marsh, as that would be too bad; that one mcrning at sunrise, at Michigan Centre, when the cars were due, Fitch looked up into the sky, and predicted that they would iot arrive till afternoon; that this occurred, as Wescott says, on the day when the cars ran offat Galesburg, ninety miles distant; that Fitch said he had written to Chicago, and had ordered handbills warning people not to travel on the road, on account of the obstructions; that this was the only way to bring the Co. to terms, and make them pay for cattle; that the R. R. Co. had offered a reward for Fitch's detection in committing depredations against the Co.; that suppose he should be arrested, he could find witnesses enough in the State, if not in Jackson Co.; that they never would convict him; that Fitch said he would shoot Wescott on the stand, if he should swear against him; that his friends would do so, if he should be unable to do it himself; that he could prove any thing he wanted; that he had friends who would stand by him, who were little suspected, and named among them Harry Holcomb, Col. Delamater, and many others of the most respectable citizens of the 185 county in which he lived; that lie would defy all hell to convict him, and that he could never lack witnesses." So Wescott testified that Filley, when speaking of the accident to the Gazelle, said that they had got a big coon but had lost its tail; that the damned railroad had sued him for timber, that in ten days he would make them wish that a Fitch or a Filley had never been born; that Filley said the Co. had sued him for stealing lumber, that they would want more, for he proposed burning the depot at Jackson; that on the same day Filley proposed to Corwin to burn the depot there, saying that there were shavings around it which would make it easy. Thus far the admissions or declarations proved by Wescott, if they have been made, are valueless, for they show nothing more than feelings of hostility on the part of Fitch, and of passion and hatred on the part of Filley, They show no connection of both of those defendants with any trespasses which were actually committed, nor any connection between those defendants themselves; still more, no connection between either or both of those persons and the other defendants. I pass to some more material statements of Wescott. He says that at Barrett's lawsuit, Fitch was active in behalf of Barrett, as a volunteer. Fitch, in fact, attended as a witness, and as this is a free country, Fitch had a right to give in evidence facts within his own knowledge, and even to utter his opinions on the merits of that controversy, and to express his own sympathies with either party. Wescott represents that Fitch told him then, that "he would like to take him into the lodge that night; that there was to be something up;" that the next day he asked Fitch what was up, and Fitch replied, "there was a fuss the night pefore, (alluding to an obstruction of the cars by a mud sill, and the breaking of a lamp,) but damn'em I I told'em I wasn't at home." We have proved, that after the law-suit, Fitch attended a democratic Caucus, and still later, a theatrical performance; that he arrived at home after the accident to the cars had taken place, and that he went down with the defendant Lemn, to see what had occurred. Wescott further says that Fitch told him that he "had advised Barrett to bring three suits against the R. R. Co. for cattle killed, not meaning to have them tried, but to fuss in the law till the spies should leave, and then they would have a grand smash, worth a dozen law-suits, and the Co. would begin to think-'there was a God in Israel;" that Fitch, subsequently, in his parlor, explained to Wescott alone, what " was intended by this grand smash;" that he was determined, with the boys, to bring the Co. to terms before the State Fair was over; that, in order to show that the prevailing feeling was not a local one, he intended to throw the cars off at the white bridge at Jackson, at the dry marsh, and at the high embankment, "three places of peculiar danger;" that "he would thus kill a hundred and fifty passengers at the State Fair, and that thus they would bring the Company to terms; and if this wouldn't, then, in God's name, what would? If we fail in this, then, God 186 damn'em, we'll burn'em out." Wescott says, that Fitch, in the same connection, "offered him a thousand dollars to burn the depots at Detroit, Ann Arbor, Jackson and Niles, or two hundred and fifty dollars for burning either, saying, that they had men who could do it, but it could be better done by strangers; that he was determined to make the Co. pay a hundred thousand dollars or come to terms; and he adds, that Filley also mentioned the grand smash which they intended to make at the State Fair, and said, that if they could get the entire train off at the dry marsh, there would be no need of coffins; that the passengers would be buried deep enough without the aid of sextons; that if they'could get the cars off at the high embankment, while the survivors were looking down upon the mangled remains of the dying and the dead, it would be a good time to feel of Uncle Sam's mail bags; and that the Railroad Company would be liable to Uncle Sam for the detention of the mails." Who believes Abel F. Fitch to have been insane? No one. Who believes that a sane educated man, living in such a country as this, could conceive a purpose so atrocious, or that, conceiving it, he should impart it to another? Abel F. Fitch, was a man of education, position and fortune-in all these respects surpassed by few in Michigan. He was a public officer, respected and honored at home, with troops of friends bound to him by clasps of steel, in various parts of the State. Is there no truth in the ancient maxim: " Nemo repentefuit turpissimus?"* Is there any height of crime towering above what,is here alleged to have been reconnoitered? Four months ago, Abel F. Fitch came here an object of public fear and hatred, borne down by the scorn of his country, and of mankind. He went in and out before you. You saw him every day harrassed, insulted, reviled, by such testimony as this-you saw him meek, gentle, confiding, cheerful, and enduring. You know his death. It was peaceful, tranquil, —the death of a man loving all good things on earth, yet resigning them cheerfully in hope of better things in heaven. Judge between him and his venal accuser, by the probabilities arising out of such a life and such a death. Who does not see that the conception of such crimes is absurd, because it exceeds the experienced depravity and folly of the human heart. The depots of the M. C. R. R.. Co. were safe against the incendiary, if the conflagrations were to be postponed until the commission of a hundred or a hundred and fifty murders. Where was the defendant Fitch to find shelter after the commission of these fearful crimes? No one has ever heard of that projected " grand smash " but Wescott. On the very first day of the State Fair, when it was to take place, Fitch with his wife and daughter, Col. Delamater and other friends, arrived at the State Fair by the cars that were to be thrown from the track. A portion of his family and friends came by the cars on the second day. They all returned by the cars on the third day; and it happened that there was no train of cars passing between Ypsilanti and Michigan Centre during the three -' No man reaches the height of crime at once?" 187 days of the Fair, in which himself or some of his family or immediate personal friends were not found. The remark imputed to Filley, that there would be no need of coffins, bears intrinsic evidence of being coined by Wescott's own turbid imagination. So the remark about the scene, where the survivors should be looking down on the mangled remains of the dead and the dying, while the conspirators should be feeling of the mail bags, and subjecting the R. R. to damage to Uncle Sam for the detention of letters, could have proceeded from no other brain; and,evidence enough that these high swelling and gigantic words, with their lame and impotent conclusion, never proceededfrom the mouth of Filley, is found in) the fact that Wescott equally draws the same terrific phrase from off the tongue of Wm. Corwin, a teamster, and from off the lips of Orlando D. Williams, a common stone mason. Of course, gentlemen, though these declarations and admissions were not made by Fitch and Filley, Corwin and Williams, no one can prove that fact, because they are alleged to have been made to Wescott by these parties in private conversations with him alone. But, fortunately, when a witness stands impeached in character, his testimony is to be rejected, unless it be confirmed, and when he is contradicted in one essential fact, that one contradiction overthrows his entire evidence. You have had his refutation and contradiction in regard to several essential facts. There are more such refutations. We find one in the celebrated window scene. Wescott testifies that one evening in August, 1850, he crept into the court-yard of Fitch's house through the space made by displacing the lower end or base of. one of the pickets, while it hung by a nail on the upper bar, drew himself under the bed-room window, looked through the gauze curtain, saw Mr. and Mrs. Fitch retiring to bed, and there heard him say to her that "they were watched close; that they must hold up till the thing settled down a little; that the boys had, within a few weeks past, knocked the Co. to the tune of $20,000." You cannot have forgotten, that Wescott, in giving this narrative on his direct examination, altogether omitted Mrs. Fitch's reply, an d with what suspicious promptness he supplied the defect when itw as pointed out to him on his cross examination.: "Mrs. Fitch said s he thought he had better let the railroad company alone, and mind his own business." You cannot have forgotten that he saw in the ro om the safe, which was a dark object, on one side, while he could not see the bed, which was a large white one, lying almost before h im. The identical fence, through which he alleges he-passed, stands before you. Neither in that panel, nor in any other is a picket that was loosened, and the whole was new and painted more than a year before that transaction is said to have occurred. Ifa picket had been displaced, it would have made a space of only four inc hes. Wescott is a young Falstaff. When pursued by dogs into Mud Creek, like his great prototype when cast in his buckbasket int o the Thames, he could have exclaimed, "if the bottom had been as deep as hell I should have found it!" But even Calvin Edson, who was exhibited as a living skeleton, could not have gone through that 188 fence. Amanda Fitch and Charlotte Beman proved that from July to the middle of September Mr. and Mrs. Fitch slept in an upper chamber. I waive the testimony of Miss Clark, because of the confusion into which she fell about dates., An attempt was made to show that Mr. and Mrs. Fitch occupied the lower bed room in the summer, but it totally failed. The witness Burr testifies that on the 29th of August, at about 8 o'clock in the morning, he found Mr. Fitch in bed in that room, which might have happened in consequence of temporary illness; but Mrs. Fitch, who came upon the stand to support the testimony of her daughter and Miss Beman, and who was denied leave, could not be excludedfrom contradicting the testimony of Burr, and so the alibi is sustained beyond dispute or contradiction. Wescott made a strong point by a conversation, before adverted to in which Filley paid Williams money on account of the Gazelle, but this is disapproved by Crowell, who was present, and who testifies that the three dollars, so paid, was paid in return for so much money borrowed. Again, Wescott testifies that the defendant Fitch said "he had got Lester clear from the indictment found against him by false swearing." No such admission could have been made, because we have produced and read here the order of the court discharging Lester upon the ground of a nolle prosequi, on motion made by the counsel for the people. But even with all this testimony, if it had been received as true, the evidence was insufficient to establish a conspiracy. Wescott attempts to furnish such evidence with directness and effect. To that end, he says that Fitch, Filley and Corwin called themselves "the Leoni band," and when required to state how and in what manner, he says, "Fitch called himself, Filley and Corwin the Leoni band;" Filley said, "Leoni against the world;" Fitch said, he, Corwin, Filley, and Williams were banded and conspired together for the entire destruction of the road, unless they paid for cattle; and Wescott being asked what Corwin said, iepeats the same thing in the same words, "I, Fitch, Freeland and Williams are banded together for the entire destruction of the road, unless they pay for cattle." Do you not see how admirably this testimony is adapted to the exigencies of the prosecution? I imagine I hear the counsel, Van Arman say, "Wanted-proof of a conspiracy." Wescott: " They called themselves the Leoni band." Van Arman: " Wanted evidence that Fitch belonged to the Leoni band." Wescott: " Fitch said he, Filley and Corwin were the Leoni band." Van Arman: Wanted-proof that the band was banded together." Wescott: "Fitch said,'we are banded and conspired together against the railroad company.'" Van Arman: "Wanted —proof that the object of the conspiracy was the destruction of the railroad." Wescott: "Fitch said,'we are banded and conspired together for the entire destruction of the railroad.'" Van Arman: "Wanted-evidence of a design to extort money from the company." Wescott: "Fitch said, he meant; to make the company pay a hundred thousand dollars." Van Arman: "Wanted-evidence that Williams proposed to 189 extort money from the company." Wescott: " illiams suggested a proposition to be made to the railroad company, through Mr. Joy, for five thousand dollars a year for five years." What a solemn and fearful scene must that have been when these conspirators threw off the mask-"Leoni against the world!" Where and what was this Leoni? It was a hamlet among the oak-openings of Michigan. What was its magnitude.? It consisted of a country tavern, a store house, a school house, a chur( h, and a dozen humble tenements. Who were the members of this band? One country gentleman, one keeper of a tavern and ball-alley, one drinking teamster, one back-woodsman, and one village mason; and they acted their parts with as much boldness, and even more, than the clowns in the interlude in Midsummer Night's Dream. For when Bottom proposed to actthe part of Lion he was overruled, lest he might roar too loudly, and so "frighten the duchess and the ladies." No such timidity distinguished the clowns of Leoni. They proclaimed themselves the unterrified "Leoni against the world! " This testimony is too ludicrous for grave discussion; but if you think it worthy of consideration, I submit first, that it proves too much in regard to the extent of the conspiracy. What was wanted, wasa conspiracy against the Michigan Central Railroad; but we have here a conspiracy against all mankind. 2dly. It proves too little, in regard to the number of the conspirators, for at most there are but five, which is forty-five less than the whole number of defendants charged. 3dly. It is too general and too vague, for it does not at all show how this Leoni Band carried on their wicked warfare against either the world or the Michigan Central Railroad. Adieu, Mr. William D. Wescott, " We know thee to the bottom; from within Thy shallow centre to the utmost skin." I pass to the evidence in support of the conspiracy. Here is a letter from.Abel F. Fitch to Mr. Brooks, the Superintendent of the Railroad Company: "Michigan Centre, Oct. 29, 1849. "Mr. J. W. BRooKs-Dear Sir:-Almost every day some persons wish to take passage on the cars at this place, but the trains refuse to stop for them.: Yesterday Mr. G. C. Chatfield, mother and sister, wished to take the cars for Detroit, and gave the usual signal, but no notice was taken of them. Now, if this policy comes from you or your legal advisers, as did the insulting half-pay proposition for killing cattle, if serious accidents do occur on the road, on your head, and yours alone, must rest the responsibility. Yours, &c. ABEL F. FITCH." And here is the answer, which we have' proved was given to this letter "Detroit, Oct. 31, 1849. "ABEL F. FITCH, Esq., Michigan Centre-Dear Sir:-You have herewith a handbill which has been quite extensively circulated upon our lin, but suppose from your note that it has not met your eye. 190 If any train has passed your station which, according to it should stop there. I would be quite obliged for any information that will point to a specific train, when I can correct it. Respectfully yours, J. W. BROOKS, Supt. A perusal of these documents shows that Fitch's communication was a friendly though earnest remonstrance against proceedings of the Company, and that it was received and regarded as such. Had it been heeded all would have been well. Five hundred dollars would haye paid all the damages claimed by complaining parties for the destruction of their cattle; and the payment would have prevented all danger and all tumult. Henry Brown testifies that Fitch, Freeland and Filley said, not when together, but separately, and on different occasions, "we will let them know there is a God in Israel; that they could have no sympathy for the Company; that the way the Company acted, the dry marsh would be a good place to let them down." Brown was a poor, illiterate negro, doubtless honest, but incapable of correctly reporting a declaration or admission, as is seen in the fact that heattributes precisely the same remark to three different persons. The threats which he proves, if his testimony is reliable, were nothing more than outbreaks of popular passion, in a private conversation. I shall waste little time upon the declarations proved by Woliver; he says that "all the defendants," (although they were never together,) "seemed to coincide in tearing up the track, and saying that they had their property killed, and if they could not revenge it one way, they would in another. They would never give up until the place was satisfied for damages; that they would carry out their objects in some shape, and that Fitch said they would hang together." This is testifying upon a new principle of swearing made easy-that is,. Woliver gives us the effect of what forty different men said on different occasions, individually, under the general caption, known in the law books by the term il semble -it seems. Woliver was a vagabond, and, as has been already shown, a false one. The testimony convicts him of having consumed awhole barrel of whiskey in a single summer. The evidence he gives of the'depredations, which were actually committed, shows that they were individual,, casual, unpremeditated ciimes, and disproves what he gives for the purpose of showing a confederacy among the defendants. Joshua Wells says that " Fitch said, that they could not convict any of one the offences that had been committed; that when Filley said they could prove they were at Bear Creek, Fitch replied they could get witnesses they wanted there; that on one occasion Fitch showed how a car could be thrown off by a wedge, and how a rail could' be placed so as to strike the lamp of a locomotive." It is easy to see that these are mere speculations of Fitch, arising out of the transactions of the times, produced here with some little perversion, to sustain the charge of conspiracy. A prudent man-a prudent jury-will require evidence of the whole conversation, or reject such fragments. The counsel have dwelt upon the reply of Fitch to Spaulding, when he declared himself ready to take arms in defence of the Rail 191 road, to wit: that he had two doule barreled guns, and he could get as many men as he wanted, and he was prepared " for the whole damned Company." The witness Burr shows that Fitch was a sportsman. His guns were kept for exercise. The remark was. made in reply to an insulting threat made by Spaulding. You will take the same view of the reply which one of the witnesses says was given by Filley, and another says was given by Fitch to Stone, when extinguishing the fire of the wood pile, that they ought to be burned up with the wood, and then the Company would pay their owners half price for them-mere idle and unmeaning, passionate words. In the same category are Fitch's reply to Holden, at Gardiner's Grocery, when asked what they meant by stoning the cars," " that the Company would get worse than that if they didn't pay for the cattle killed, and that every animal had cost them a hundred dollars; a similar remark made to Wm. J. Welling, "that the cows cost the Company one hundred and fifty dollars each;" a saying of Corwin's to the witness Henry, i d n'em let them pay for cattle, if they don't want to be shot;" Corwin's comments upon the Railroad Dream, when upon reading "how a rich corporation killed a poor. man's, cow, and the poor man prosecuted and yet had to withdraw his suit," Corwin commented,'By G- d, the people of this town won't stand such operations;"' the threat of 0. D. Williams that "he had stoned the cars, and would as long as he staid in Michigan Centre;' and another proved by Henry, to wit: that Williams, when he had a cow killed said, "if they didn't pay her value, it would be a dear cow to them;" also, his declaration that the "road ought to be torn up till they paid for the cattle, and then they would go along peaceably;" so also Freeland's remark, " that a plan could be laid to blow up the Railroad, by placing powder under the rails;" and a remark imputed by Dexter to Fitch, to wit:: on one occasion, when the cars run off, he said he wished it had injured them more;" and his declaration proved by Knickerbocker, " that the Judges of courts could be brought under the influence of the Company, and there was no redress for the poor man, and that the Company was an aristocracy and a monopoly." These and other kindred expressions, abounding-in the case, are intemperate, but casual utterance of individual exasperation, made in public places and on publiG occasions, under circumstances totally inconsistent with an idea of a connected plot, or organized conspiracy. They are evidently, dissevered, disjointed parts of popular debates of which can no more be gathered from the dismembered sentences, than they system of the theology of the Bible from cross-readings in the Concordance. Discussion of the wisdom and impartiality of Judges is not interdicted by the Constitution, and error in that respect, like error on other political subjects, may be safely tolerated, where" Reason is left free to combat it." A word only will be bestowed upon the testimony of Wm. Dobbs, who gravely tells us that " Williams offered him five hundred dollars to burn the Mayflower and Atlantic Steamboats, and that Williams said Fitch, Filley and Champlin would be his backers." Dobbs 192 was a city runner and bully, who was rusticating in the country; Williams a village mechanic, given to occasional intoxication, especially when visited by such worthies from the capital. He probably was not worth at that time five hundred cents. He may have magnified himself and his relations with Fitch, Filley and Champlin, in saying they would be his endorsers; but if such conversation ocurred at all, it was in some bar room revel, as an interlude between those interesting "fightS," in which he and Dobbs knocked each other down, by way of settling the important dispute whether a gold dollar was larger than a five cent piece. Mark English contributes, in aid of the prosecution, a statement that Fitch in September, 1849, said, " We have laid a plan to fix the road in such a shape that the Company will be unable to find an engineer to run on the road." "When I asked the reason," English adds, "he said they would not be willing to run the risk of their lives-that it would not answer for Brooks to go over the road." English was a laboring man, employed by Fitch for a short period. Ignorant of the force of the terms used, he gives, doubtlessly, the designation of " plan " to speculations in which Fitch may have indulged concerning the condition of questions then agitating the public mind; and this, probably, involuntary error is all that gives his testimony any effect. Charles Rogers says he worked two days in harvest for Fitch in 1849; that he heard Filley speak of a piece of timber to be placed in a culvert, so as to be drawn by a rope after the hand car had passed; and he heard Fitch speak of percussion caps, and of a machine to throw the cars off in the right place, and then be removed and saved to be used at some other time; that he heard Fitch say he was willing to turn out with his team and tear up the track, but didn't say how far he would tear it up. What an unfortunate forgetfulness! Fitch must have assigned limits-at his garden wall, at the end of his orchard, or deer park, or at the high embankment, or at Dexter, or at Ann Arbor, or at the gates of Detroit, or on the banks of the river: but conscientious Charles Rogers forgets them. In regard to these two last witnesses, it is only necessary to recall the remark before made-that testimony consisting of detached sentences, severed from long and probably frequent conversations, without explanation how those conversations arose, to what they relate, what were the points involved, and what the conclusions arrived at, is utterly valueless. It is simply incredible that Fitch should have bestowed just this amount of confidence and no more, and no less, upon a laboring man during two days in the harvest field. The testimony disproves itself by its absurdity. The machinery to be applied to draw timbers upon the road, after the passage of the hand car, is quite too clumsy; the use of powder and percussion caps, quite too artistical, while the idea of the portable engines for throwing the cars from the track savors quite too much of frugality. The counsel for the people alledge that Charles Rogers is a man of unquestionable veracity. Their standard of veracity accommodates even Wescott. Adopting that standard, I think Rogers excels Wes 193 cott in fertility of invention. A large portion of the evidence consists of threats alleged to have been made by the defendants against spies, of which I shall produce a few samples only, by way of illustration, viz: Fitch's alleged warn ing against spies; his supposed attempt' to soothe and pacify Woliver, when he was leaving Filley; Corwin's expressions of solicitude on that occasion; Filley's alleged visit to him, after he had gone; Champlin's conversation with Sher-.aan, warning him of the dangers of infidelity; the alleged threats of Williams, Corwin, Price, and others, against Wescott; Williams assault upon Holmes; Fitch's alleged remark, as proved by Caswell, that if Sherman had betrayed him, as he had the boys, he would like to feel his knife about his ribs; the threats against Wescott on the occasion of Gleason's visit to the Centre; and threats by Williams and others that they would kill a spy as soon as they would a dog, a bear, or a masassauger. In regard to this class of evidence you will remember, gentlemen, in the first place, that it is by exaggerating the danger they incur in the cause of the railroad, that these " miscreants" expect to gain greater confidence and higher rewards. In the next place, all these threats and demonstrations were such as would naturally occur when such spies were employed; and there is no necessity to look for any motive, other than indignation, and the desire of safety on the part of the parties watched, whether they were innocent or guilty. Remember these spies, how they abounded like the locusts-how they waylaid suspected men by day and by night, in the open streets, or concealed by hedges, how they sat disguised at their tables, lurked under windows, under the bed, under the floor-how no one living at Michigan Centre could enter or depart from his own door without dauger of stumbling over them. You will easily imagine the apprehension, and fear and indignation which such an unlawful and self constituted police would awaken. Answer then, whether it is not wonderful that although this state of things continued in so rude a society six months, yet no life was sacrificed, no limb broken, and with the exception of the injury committed by Williams upon Holmes in a drunken revel, no violence was committed. It is immaterial, for our present purpose, whether testimony of this description be true or false; if true, it is accounted for on a principle different from that of a conspiracy; and if false, it may be dismissed at once from consideration. I remark, however, in regard to all these alleged declarations and admissions, that the testimony bears the unequivocal impress of fraud and fabrication. A conspiracy was to be proved. That was essential in the case. What else was indicated by Wescott's remark to Taylor, that a web would be wound around Fitch, which would drag him to State's Prison? What else was meant by Phelps' remark to his wife at Laycock's house, that "if Wescott would'do as he agreed, he would come a good drive over Fitch?" What could it mean but that Wescott and his associates should frame and fabricate the evidence of a conspiracy, to connect the trespasses at Leoni with the alleged arson of the depot at Detroit? The task of forg13~ 194 ing this conspiracy was assigned to Wescott, while it devolved on Van Arman to polish it. The alleged admissions are all in the language and idiom of the witnesses who proved them. Westcott is facetious, and so Fitch, who was a grave man, is made to ridicule the clergymen of his town. Wescott is grandiloquent, and so, not only Fitch and Filley, but even Corwin and Williams utter, rant and bombast. Phelps is classical as Lucifer, and so, both Fitch (whoa was not a literary man) and Filley (who was a fisherman) speak in heroics. We have vowed, says Fitch, that " no cars shall pass without doing homage to Michigan Centre," and Filley says, " if you will burn the depot at Niles, Fitch will give you his wife or his oxen." When Henry Brown, the negro, reports an admission, it is in the idiom of his own degraded caste and race. He said "he didn't and couldn't have no synmpathy with the R. R." When Caswell and Woliver testify to like admissions, they come out in the shape of abrupt and profane oaths; but when Mark English and Charles Rogers are reporters, the language is chaste and subdued. Gentlemen, from the days of the Grecian oracles down to those of the Rochester Rappings, there have been those who have reported communications with departed spirits. I have always observed that the ghosts addressed, were learned in the languages of the conjurers. Sothat if those who were gathered together on the day of Pentecost, should be summoned, all of that shadowy host, whether Jews or Greeks, or Romans, or men of Crete, or of Cyrene. would respond in the vernacular tongue of him who addressed them. These alleged declarations and admissions by the defendants, betray the same accomodation to the witnesses, who report them.'One remark more. These pretended admissions of plans and plots and conspiracies are manifestlyfalse, because no such plan, plot or conspiracy has ever been developed. We are asked to believe there was a plot to burn four depots. No depot was ever burned: a conspiracy to destroy a hundred and fifty lives, no life was ever destroyed. The question of the existence of the conspiracy, then, stands thus: 1st. The evidence consists of overt acts, committed by persons unknown and without explanation; 2d, of overt acts With explanations, of the attendant circumstances, which altogether exclude the idea of conspiracy. 3d. Of alleged meetings in which nothing was agreed, and nothing conspired, and which meetings were never held. 4. Of individual expressions of resentment, passion or revenge, rebutting even a presumption of mutual understanding or concert. The pretence of a conspiracy fails, because what was done was done by those who did not conspire, and who had no knowledge of any conspiracy. What is alleged to have been contrived in conspiracy never was executed, neither by the conspirators nor by others, and never came to the knowledge of the actors in what was done. Only four defendants are proved to have committed criminal acts, andl there is no evidence that they ever conspired to do those acts, much less that they ever conspired for any ulterior object or purpose. His allegation of a conspiracy, then, is foreign from the case. The proofs in support of it were admitted on grounds 195 which have failed. It is a false issue. The issue is not whether felonious crimes have been committed in Jackson Co., attended by atrocious threats. Crimes have been committed, but those crimes, whether with or without such threats, belong to the jurisdiction of Jackson Co., and not to yours. An attempt to try the defendants for them is an act of usurpation. It is an usurpation which can only lead to retaliatory aggressions of the same character by the people of Jackson county. The conspiracy again is a false issue, because even if it existed, it would not prove that the defendants were guilty of the crime of burning the depot at Detroit. If the crime was committed, the defendants must be equally convicted whether there was a conspiracy or not; there lies the secret of all the difficulties that have attended this trial, and of all the delays that have occur-'red. You have been trying forty different men for scarcely less than forty different crimes. The issues were multifarious, the proof confused, and the subject of the guilt, or innocence of the defendants is involved in innumerable perplexities. In the history of English and American Jurisprudence, there was never such a trial by Jury. I sincerely hope there may never be another. Gentlemen there are two classes of defendants, viz: First, those who are charged with the crime of burning the depot at Detroit only through an alleged connection with a pretended conspiracy. Second, those who, besides that connection are also directly charged with the crime by pretended admissions of complicity or kn owledge. The latter loss must abide your examination of the whole case. I am ready to show you now that the first class are entitled to be acquitted. There is no evidence at all against Ira Beebe; nor against Russel Stone, nor against John W. Welch, nor against Welcome Hill, nor against William Lang, nor against John Ladue. You will acquit them of course, Henry Showers, stand up. What, not here! The pros ecution have anticipated me by excusing this defendant from further attendance. Nevertheless you must pass upon his case. Phelps says that "about the middle of March last I found Showers, Filley, Lake, Champlin and others at Michigan Centre. We talked about my journey to-Niles, and about the difficulty in burning." Did Showers: hear this conversation? If he heard it, yet he said nothing. The Detroit depot was burned in November 1850; the conversation was in March. 1951. You will of course acquit Henry Show — ers. Dr. Arba N. Moulton. He also does not appear. Jacob Woliver says "Dr. Moulton and others told me to look out for spies, for they were watching us." Wells says, "Laycock told me he borrowed from Moulton the pistol which Caswell received from Fitch." S. A. Williams says, "that at Rome Dr. Moulton told him that he understood there was a plan to blow up the Railroad." Let the Doctor pass.: Jacob Terrill. Young Dexter says that "Terrill advised him and his father to settle up and clear out, as they were suspected of b eing spies." You remember that Smith made a show of proof that Ter 196 rill once laid a piece of strap iron on the rail, which, however, would have done no harm. Your verdict, gentlemen, must be for Terrill. Wm. S. Warner. Phelps says that last March, three months after the Detroit Depot was burned, Warner asked him how railroad stock was and whether it was above par. Another witness says that on being arrested Warner asked who Phelps was, and said he did not know him. Be pleased to acquit the defendant Warner. Benjamin F. Burnett. You see him there, he went across the railroad for a midwife on the day the Goliah ran off the track, but he has shown that the services of a midwife were wanted. When his cow was killed by the engine he said he could recover her full value, but it would cost him more than it would come to. Acting on a committee to negotiate with the Railroad company, he expressed the opinion that their policy was unwise and unjust. I am: sure you will discharge Burnett. Napoleon B. Lemn. He conducted Barret's case against the railroad company. Phelps thinks that Lemn heard part of the conversation with Filley in the ball alley on Christmas. What part? there's the rub. Whatever he may have heard, he said nothing. If to hear was criminal did it relate backwards and make him responsible for the burning of a depot in November? Lemn was Corwin's lawyer also, and he said he should pity the railroad company if Corwin was to be convicted of burning the wood pile, that Corwin fiad friends, that the cars would be run off out of sight if Corwin was convicted; and the witnecs added that Lemn said " this was right, the people would have their revenge." If indeed Lemn said all this I grant that it was bad law, and bad morality, but it was not arson. Dixon, the wheat buyer, relates that Fitch told him that when Lemn went up to the place where the Dexter had been run off, he slipped a knife into his sleeve. This is hearsay. A yerdict, gentleman, for Napoleon B. Lemn. Hiram Hay. Why he has gone too. I am losing all my clients. Hay was at Filley's on the night of April 11th, that mysterious night. But he did nothing-he said nothing, and according to Phelps, Lake and Faulkner, he was allowed to hear nothing. When John Faulkner, "'the woodman," arrived at Jackson at sunrise on the morning of the 12th, he looked around and saw a man mounted on a high whitehorse, and he thought the man was Hay. But certainly it was not Hay, and probably the horse itself was only a grotesque and fleecy passing cloud. A verdict then for Hiram Hay. Grandison Filley. Phelps and some of the defendants attended a ball at the house ofGrandison Filley, in March last. But Filley is charged with doing nothing, and saying nothing there. Dr. Hahn says that in the cars when the prisoners were coming down under arrest, G. Filley and another were sitting behind him, and that one of them said "If I could get hold of that damn'd Hank Phelps, I would make mince meat of him. He has been about all winter, pretending to be visiting, and now he has come out and exposed the whole matter." Which of these three persons, gentlemen, shall we 197 send to the State prison for this admission? Grandison Filley must be acquitted. Benjamin F. Gleason. This defendant called at Fitch's house twice, and Wescott says that Filley, speaking of those visits, said that "he" (Wescott) "was a damn'd spy, and he ought to have his throat cut." Woliver says that he has heard Gleason, among others, say that the persons who committed depredations on the railroad could not be convicted, for the reason that they could get witnesses enough to swear them clear. I think, gentlemen, although there may be treason, yet that-there isno arson in all this, and therefore I ask the acquittal of Gleason. John Palmer. Phelps alleges that Palmer remonstrated with Minor T. Laycock against becoming a witness and a spy, for the railroad company; but inasmuch as this testimony is contradicted by Christie Blackman, who was present on that occasion, and is harmless if true, you will at once discharge John Palmer from the indictment. Lester Penfield. He was present at the dinner at John Palmer's. Wells says that he asked Penfield if he was not afraid, inasmuch as his sled was shod with old railroad iron? He replied no! they never could prove anything, they had tried several times and failed.' Penfield, according to Mr. John Dowdle, when speaking of tresspasses upon the railroad in Leoni, said "thepeoplewere contending for their rights." Undoubtedly they were, gentlemen, but they were contending in a wrong way. Nevertheless, I think you will restore Mr. Penfield to his mill. He is wanted there. Abner Grant. He has neither done nor said anything worthy of bonds. Barrett has only prosecuted the railroad company for his cow that was destroyed. Itwas a grievous fault, but he has already grievously answered for it. Willard Champlin. He did not write the "Price Boys Warning.' Phelps relates that Champlin said at Filley's, that he would like to have seen the depot at Detroit burn, with Brooks in it. But Hart Holmes provestthat Champlin was not at Filley's on that occasion. Minor T. Laycock did not fire at an engineer, even if he received loaded pistols for that purpose. Phelps says that Fitch told him, that' Laycock knew that $150 was paid for burning the depot, but did not know to whom it was paid. This is mere hearsay, and Laycock must be acquitted. E. J., and R. Price. Phelps informed us that Price, without distinguishing which of these two defendants, admitted that he had contributed to the fund to burn the depot. We cannot ascertain which one ought to be punished, and therefore I think you are bound to acquit both. Did the defendants hire and procure Gay to burn the Depot T The case on the part of the people is, that Geo. W. Gay burned the depot with a-match which he lighted at his own house, near the Grand Circus, in the borders of the city, at 7 o'clock in the evening, carried in a box through the streets into the depot and there, in the presence of the laborers, but unobserved by them, deposited it in the cupola at eight o'clock, that it burned with a slow flame until be 198 tween the hours of two and three in the morning when it commuinicated fire to the building and the depot was consumed; and that the defendants now on trial furnished the match to Gay and paid him $150 for committing the monsterous crime. The burning of.the depot by an incendiary is what is called the corpus delicti. The crime must be proved first and beyond a reasonable doubt before you are at liberty to enter upon the question whether the defendants were accessories. In regard to the crime then you will mark that ino human eye saw G. W. Gay set fire to the depot. The assumption that he commited the crime rests on the conceded truth that the depot was consumed somehow; and on evidence of admissions and statements supposed to have been made by him and by the def-endants. Such evidence is at once the most uncertain and unsatisfactory of all testimony. I dwell upon this because there is a common notion that admissions are conclusive while no notion is so erroneous. With respect to all verbal admissions, says Greenleaf (vol. 1, p. 200) it may be observed that they ought to be received with great caution. The evidence consisting as it does in the mere repetition of oral statements is subject to much imperfection or mistake, the party himself either being misinformed, or not having clearly expressed his own meaning or the witness having understood him. It frequently happens also that the witness, by unintentionally altering a few of the expressions realy used gives a completely different statement of what the party did say. The zeal too which so generally prevails to detect offenders, especially in cases of aggravated guilt, and the strong disposition in the persons engaged in pursuit of evidence to rely on slight grounds of suspicion which are exaggerated into sufficient proof, together* with the character of per-sons necessarily called as witnesses in cases of secret and attrocious crimes, all tend to impair the value of this kind of evidence, and sometimes to lead to its rejection, when in civil actions it would have been received. The weighty observation of Mr Justice Foster is also to be kept in mind, that this evidence is not to be refuted in the ordinary course of things, in the way by which the proof of plain facts may be obviated. (l Greenleaf 213,) "'Hasty confessions made to persons having no authority to examine, are the weakest and most suspicious f all evidence." (Foster's Discourse, 243) These principles apply with infinitely greater force when the alleged admissions are procurred for hire and reward. I ask you now;to assume a further principle, which the court must charge you to be true and no one will gainsay, which is that no admission concludes against the fact. An admission does not bind, if the fact is not true. Thus an admission cannot bind if the fact be impossible, because if it is impossible it is not true. The law is so tenacious of -this principle, that if Gay should have declared that he burned the depot, and if all the defendants should have confessed that he did so and that they had employed him to burn it, and if it should appear in fact that the depot was not burned at all, or that althought it was burnt yet that Gay was in Buffalo or in bed at the time of the burn-;ing, the evidence of the confessions must be rejected. 199 Without reviewing now the admissions alleged in this case I shall show you, in the first place, that they must be rejected and that the defendants must be acquitted, because the manner in which the crime is confessed to have been committed was impossible This is a distinct and independent defence, for it was impossible to burn the depot in the manner described, then the defendants must be acquitted nevertheless, although all other positions assumed in their behalf should fail. I proceed to show that it was impossible.. This instrument is of the same kind with that with which the depotis alleged to have been burned. It it not the same instrument, for, of course, that one is assumed to have been destroyed by the fire it kindled. But the description of that instrument is given us by the witness Phelps, as he obtained it from Gay, the supposed incendiary, and from Fitch and Filley who, it is alleged in the confessions proved by Phelps, delivered that istrument to Gay. This match is made and furnished not only on the same plan and principle, but exactly in conformity to the description given by Phelps. All question inregard to the identity of the instrument in principle and in furniture is excluded, because this match now produced was found in the possession of Gay and is presented to us as one of two lwhich he alleged to Phelps, he received from Fitch and which Fitch confessed to Phelps he had delivered to Gayin February last, to be used in the burning of the new depot as soon as it should be constructed. You see here a second instrument made and furnished on the same; plan and principle. Phelps says, this last one, was delivered to him by Fitch and Corwin on the night of the 11th of April, to be used by him in burning the depot at Niles, and that it was actually employed two days afterwards in setting fire to that depot. The admissions of Gay/that he burned the depot were admissions that he burned it with a match of this description. The admissions of the defendants that Gay did burn the depot and was hired by them to do so were admissions that he burned it with a match made according to the description which they gave and the duplicate matches, which they delivered, one to Gay at Detroit and the other to Phelps at Michigan Centre, which duplicate matches I now hold in my right and left hands. I call your attention now to this one, which was used by Phelps in firing the Niles depot, and is therefore called the "Niles' match." You see it is a cylinder of white-wood, a foot long, that has a hollow tube bored with an auger in the centre lengthwise from one end to within an inch or more of the other end. According to the descriptions, that central tube is coated with varnish, and being thus coated is filled with camphine. When that tube is filled the orifice is covered with a seal of shoemaker's wax. Remember now that the tube is coated, not with glue, but with varnish and with no other substance, and that the orifice is sealed not with any other substance than shoemaker's wax.@ Here then in the same end of Mr. Van Dyke. The description includes glue. The Court read "the hole is glazed" &c. Mr. Seward, Glazed is not glued. Mr. Van Dyke.' It includes glue." Mri Seward, No, sir. Varnish is used as the thing with which the glazing was effected. You glaze with varnish, but never with glue. Look at this table. It is v.arnished, that is"glazed" with varnish." 200 the instrument you see it is pierced with four small central tubes near the circumference. These extend backward to within an inch of the other end of the cylinder. In the centre of each of these is inserted an open funnel or chimney made of brown wrapping paper reaching the bottom of the tube and kept in shape by a thread twined round it. This funnel you see is smaller than the tube in which it is placed. The vacant space in the tube around the funnel is filled with cotton pressed down so as to fill the whole of that part of the tube which surrounds the funnel. This funnel with the cotton surrounding it constitutes the alleged slow train. Turning now to the other end of the instrument, you find that each of these tubes running paralell to the exterior surface and near to it is connected with a fuse or touch-hole bored into it perpendicularly from the surface. A match thus constructed and thus furnished, according to. the case of the Prosecution, and no otherwise constructed or furnished, was laid horizontally in an oblong box some two or three inches longer than the instrument with the solid end of the instrument against one end of the box. In that box the vacant space of two or three inches in front of the pierced end of the instrument was filled with shavings saturated with camphine or turpentine. The case shows that Gay, at his house near the Grand Circus, at 7 o'clock set fire to one or more of the trains contained in the smaller tubes, and then carried the box, covered with a lid, nearly a mile through the streets from his house into the depot, passing some thirty or forty men employed there, proceeded up two flights of stairs and deposited it burning in the cupola, that after removing the lid he left it there at 8 o'clock, that at half-past two in the morning the burning train or trains had conveyed fire through the instrument, that then coming into contact with the saturated shavings it caused them to to burn, that the combustion melted the seal of the central orifice and the camphine thus released flowed, out and taking fire produced the conflagration of the depot. We of course were not permitted to practice experiments upon duplicate matches produced in evidence, but here are two instruments constructed by a mechanic of this city on the same plan and furnished in precisely the same way-that is to say, constructed and furnished according to the duplicates before you. The flues or chimneys are made of brown paper. The space around one of them, was filled with cotton, closely packed, so as to produce a slow train. It could not be fired at the fuse at all. A second train was prepared with oakum, a substance named as an alternative in the description, but not found in either of the duplicates, and which we supposed to be better adapted to transmit fire. All efforts to communicate fire to that train through the flue failed. A third train was prepared with cotton, less closely packed, upon the supposition that the fire would pass through it although more rapidly than the principle of the machine required, but the fire kindled at the fuse went immediately out. A liberal construction was put upon the description and it was supposed that the train might require to be saturated with camphine, or turpentine, both of which were named in the description but for a different use. Atrain was therefore pre 201 pared, composed of a mixture of dry cotton saturated with camphine. After much difficulty, and after igniting the block itself at the fuse'hole, this train was set on fire, and smoke and sparks at length pass. ed through the funnel. The instrument was then laid in a horizontal position, and after ten or fifteen minutes the train ceased to burn. The'instrument was left lying, in a horizontal position, on a stove, during the night, and not a spark of fire was found in it in the morning, while the train (remained unconsumed. This experiment denonstrated that a match, constructed according to this description, and to the models, produced in evidence, could not be made effective. The reason of the failure is obvious. The tubes are formed on the principle of the gun barrel, that is, of a barrel of uniform bore pierced at the bottom with a fuse hole. It would be impossible to fire a gun charged with cotton pressed down from the muzzle to the fuse of the barrel, even with the aid of an open paper tube in the centre of the cotton. Here is a pistol with large bore. Here you see it charged with a train consisting of a paper tube surrounded by cotton, according to the description and models. I apply a match, the train will not take fire at either end. You say that the fuse hole is too small. Well, take a drill and open the fuse hole as largely as you please. You see at once that the result will be the same. Guns are made to shoot with, not to carry slow trains. But you say, that there is only one barrel in the pistol, while the machine has five. Yes, but if you cannot fire one, you cannot fire five. The draught in so close a chamber would be inadequate to sustain combustion of these materials; and if there were enough, the draught would be from the muzzle to the fuse and not from the fuse to the muzzle. The Counsel for the people have added absolute confirmation to the result thus ascertained by the testimony of Dr. Desnoyers; a skillful and I believe eminent chemist, who, testified that he had made repeated experiments with instruments thus made and charged by himself, and found it to be impossible to fire them at all. Another experiment was made by us, which resulted in proving' that, if a fire of camphine, or of cotton saturated with camphine, was kindled at the fuse, it would be immediately extinguished byplacing the' lid upon the box. The first experiments also showed that if such a train, (made of paper and saturated with camphine) could have been ignited and kept burning, it would have emitted a smoke and an odor of cotton, paper and turpentine, that would have immediately betrayed the presence of the fire. A further experiment showed that camphene, or turpentine, was a good solvent of varnish; that the varnish almost immediately disappeared, that, within ten minutes from the time the central tube was filled with camphene the resistance of the varnish had ceased, the camphene was absorbed into the pores of the block, and the pressure of the external atmosphere (which I believe is sixteen pounds averdupoise on each square inch of surface) caused the shoemaker's wax to bend or cave inwards into the tube, whether the instrument 202 was in an erect or a horizontal position. After two hours, the camphene was found to have passed through the solid block of wood atthe further end, and the wax, unable io resist the atmosphereic pres sure, fell in, and the camphene was discharged. These experiments, then, showed, first that if Gay had lighted the match at his house, it must have been extinguished by being covered in his passage through the street. 2. That if it had continued to burn, the presence of the flame would have betrayed him to all whom he passed, whether in the street or in the depot. 3. That the fire, if burning when he left it in the depot, it must have died out immediately. 4. That if the train, in opposition to the resistance of natural laws, had continued to burn seven hours, or until half past two o'clock, that the camphene in in the central tube would, five hours before that time have flowed out, and that camphene, as well as that with which the shavings were saturated, would have been absorbed thro' the box into the floor on which it was placed.; But, you will ask, may not the instruments with which you experimented, have differed from the original, alleged to have been, used by Gay. We have therefore tested that question. Here is the Niles instrument, with which it is alleged that Phelps did actually set fire to the depot at Niles. You need notbe reminded that this was done by Phelps under the supervision of the officers of the railroad company,, for the purpose of more effectually charging the defendants. The match furniture remains within, just as when the instrument was brought into court. You see fobr yourselves that the trains, made in the same way, are all here, and every one of them remains unconsumed. You see here the paper tube, the thread, the cotton and the wax on the end of the instrument. You see moreover that no particle of smoke or flame ever passed through any of the trains; you yourselves sawed the block around at the intersection of the tubes and holes, and there you see that the cotton was never ignited not even that which was in contact with the fuse. Nevertheless you see, with equal distinctness, that the fuse holes have been made large, and the block itself set on fire around the fuse holes, in the fruitless attempt to produce combustion of the trains. Turn now to the testimony of Darius Clark, and you find, that he says that the fire which was communicated by this match' to the building at Niles was communicated (not by the camphene, nor by shavings, nor even by the trains) but by the fire kindled at the fuse hole. That is to say, the match set fire to the depot by being first set on fire itself, like any other billet of wood. I take now this match found in the possession of Gay, and which we call the Detroit match. You will recollect, that it was produced as one of two, which, according to the testimony of Phelps and Lake, were admitted by Fitch to have been given by him to Gay in February last, to burn the new depot. There is no difference between that and the Niles match, and no difference between either of them and the matches upon which these experiments were made. Now to render the demonstration complete. 203 You see that I apply this burning. Lucifer match to the cotton in this tube, and that the cotton being so closely confined, actually refuses to be burned. Here are the trains in the Detroit match, all the paper tubes, and all the cotton necessarily surrounding them, just as they were when the instrument was found. Now you see me apply a lighted Lucifer match to the cotton, and it remains unburned. If. then the alleged admissions were made, the verdict must nevertheless be for the defendants, because the fact admitted was impossible. The admissions are of no more worth than would be admissions made by the same parties, under the same circumstances, and with the same solemnity, that they burned the depot at Detroit by setting it on fire with a fragment of an iceberg. Thus it has peen proved, that the match, with which the'depot is alleged to have been burned, is a humbug, and that the duplicate matches, produced to give effect to the tale of the witnesses, are duplicates of the same humbug! It is immaterial whether the defendants made the admissions, for the purpose of imposing upon the credulity of the witnesses, or whether the' admissions themselves were fabricated by the witnesses. The conclusion is irresistable that the defendants are not guilty under this indictment. The answer of the prosecution io this distinct defence is given by Dr. Desnoyer. After faithfully trying to make an effective instrument, with the materials of wood, paper, twine, cotton, varnish, camphene and shoemaker's wax, according to the descriptions and to the duplicate models, he pronounces that it is impossible. Thus he corroborates and establishes the demonstration we have made. But, after arriving at this result, he was instructed to use other materials at pleasure, and at all events to produce an instrument in the same form which would be effective: After a fortnight of laborious experiments, the Dr. produced an instrument whichwas partially successful. Instead of varntsh, for coating the central tube, he employed glue, which all know is soluble in water and yet not soluble in camphene or in turpentine. Having coated the central tube with glue, he made it retain the camphene for a longer period than when coated with varnish. Next, he saturated cotton with a solution of saltpetre, and thus, of course, produced a low quality of gun cotton, and used it in making the trains. Unprepared cotton will not convey fire through a tube-gun cotton will, and thus by the use of that material, the Dr. has made an instrument, in jorm resembling the machines exhibited here, which will convey a flame from the fusehole through the instruments. Our reply to this evidence is, (1.)' That even if the Doctor's instrument was identical with the supposed match of the defendants, still the experiment would be a failure, because the utmost length of time which he could protract'the burning of the train, in the instrument, was one hour and ten minutes; whereas it is required that the match should retain the fire not less than seven hours and a half. This is skill beyond the Doctor's art. What has been done once can be done again. What 204 was done by the clowns of Leoni can be done by the science of Detroit. But Dr. Desnoyer cannot do it. Counsel say, he said that he thought his new match could be perfected so as to burn several hours. I was not here when he testified, but I am instructed to de. ny it. You will decide. But whatever he may have said, the result of his experiment is a fact, is evidence. What he speculated beyond that, is not a fact, is not evidence. (2.) His match is not identical with that of the defendants and differs from it in the use of the materials, glue and gun cotton or saltpetre. It differs altogether from it in principle, because glue is insoluble in camphene, while varnish is soluble therein, and because saltpetre, like powder, of which it forms an essential element, is explosive, and conveys fire by percussion, while cotton, whether saturated with camphene or not, is not explosive, and transmits fire only by contact of the particles. Saltpetre is moreover highly charged with oxygen, the element of combustion. The unprepared cotton, or cotton unsaturated with camphene, is less highly charged with oxygen. It was varnish and not glue that was demanded by the description given. It is simple unpr2epared cotton that is demanded by the description. It is varnish and unprepared cotton, alone, that are actually found in this match, which is claimed to havefired the Niles depot, and in this one, which was to have fired the new Detroit depot. Again, the Doctor's experiment was not tried with the same conditions. The supposed match of the defendants burned when lying horizontally; the Doctor's match lay in an angular position with the funnel upwards. If a defendant was alleged to have admitted that he killed another, with a certain gun which he exhibited, and if that admission should be proved to be false, because the gun was not loaded, the case could not be restored by producing a whole magazine of guns, and showing that they could be loaded and made destructive. The answer of the prosecution, then, to this defense, is an afterthought, a new invention, a subterfuge. It is a studied, deliberate fraud. The prosecution endeavors to escape by saying, that the cotton in the Niles match might have been saturated with saltpetre; but if so, then it would have differed from the description given, which did not require saltpetre. Again, if the cotton in that match was saturated with saltpetre, the saltpetre is in it still. They give up, that there is no saltpetre in it, as they must, because it would burn now, if it contained saltpetre now. But they say that the witness Clark testified that it was laid in the river at Niles, after having fired the depot. Unfortunately, however, it is too plainly to be seen, on examiniation, 1st. That it never was fired in the trains at all. 2d. Clark's testimony, about its having been put into the river, is expressed in vague terms and probably rests on mere hearsay. 3d. The paper tubes in the Niles match are solid and firm, whereas they would have collapsed by reason of the expansion of the cotton when put in water. 4th. The whole instrument is composed of such light materials, that it would have floated away, like a bottle or a cork, if it had been thrown into the river. 205 Again, it is quite certain that the match prepared for burning the new depot at Detroit, was never immersed in the river. I applied flame to it, with precisely the same result, in attempting to burn, as the other. Neither contains saltpetre —neither will burn. But still, it will be insisted that saltpetre might have been included in the description. This cannot be, because Phelps, who alone gives us a description, has been upon the stand and has not amended it. The reason was, that, in inventing the description, he had made camphene the essential ingredient. He took care to insist upon camphene as an ingredient to be used whenever he spoke of the match, thus, "that he lent Gay two dollars to buy camphene with," implying that it was to be used in charging this very match now here, which he was to use in burning the.new depot at Detroit. With equal care, he makes Fitch say, when he delivered the Niles match, "You will get camphene out there, (at Niles,) because it will be inconvenient to carry." When Phelps arrived at Niles, and proceeded to set the depot on fire, he actually procured camphene at the railroad office, and charged the instrument with it, by pouring itinto the trains, not into the central tube. The thought of saltpetre never occurred to him, nor to any other person, until it was suggested by Dr. Desnoyer, after the humbug had been exposed here in court. Besides, how should Ami Filley and Fitch and these illiterate men at Leoni, learn a secret in chemistry that Dr. Desnoyer has taken a fortnight to find out in his laboratory? Gentlemen, you are now at liberty to trace out the results, of this exposure. They are, that the pretended burning of the depot at Niles is a fraudulent fact; that the concealment of the fraudulent character of this fact until it is discovered here, is also fraudulent; that the pretense that the Niles match was immersed in the river all night, is a fraud; that the pretended employment of Gay to burn the new depot at Detroit, is a fraud; that the pretended confessions of the defendants, and, even of Gay, that he burned the depot at Detroit, are fraudulent; that the pretended admissions of the defendant Smith, that he was a party to that crime, are fraudulent; that the pretended admission of the deceased defendant Gunn, that he was going to burn the depot at Marshall, is fraudulent; that the pretended conspiracy of the defendants to burn these depots, is false and fraudulent. If you are surprised, as I am, that the prosecution, after the exposure of all these frauds, still endeavors to convict these defendants, by imposing upon your belief that the Detroit depot was burned with a match, furnished by the defendants, differing from that which the prosecution first proved, I can only say, that it is a new illustration of an old maxim,, that "he that stands on slippery places makes nice of no vile hold to stay him up." This, gentlemen, concludes the first defense raised against this prosecution. If there were not mountains of prejudice to overcome, I should leave the case here. But there is a second defence no less clearly established and no less conclusive. This defence is also an independent one; and stands or falls by itself. The matches produced here by the prosecution, 206 and which I have called duplicates, were fraudulently fabricated' by Phelps and Lake, the People's witnesses. Before I prove this point, you will permit me to explain its effect upon the case, if established. If these matches were fraudulently fabricated by the witness for the prosecution, then their testimony showing that Gay and the defendants admitted the burning of the Depot by a similar match made by them and given to him, must be false, because the case stands upon those admissions. It is essential now to recall only this part of the testimony, to wit: that Phelps, Lake, Van Arman and Clark, say that on the eighth or ninth of April they saw this Detroit match in the possession of Gay, in his. house in this city, and that Titus and Phelps say they found this same match now in my right hand under the sidewalk, near Gay's house, two days after his arrest, and that the prosecution produced it as the match before seen in Gay's house by the other witnesses, 2. That Phelps and Lake testified that they received the match, which I hold in my left hand, from Fitch and Corwin at Filley's house in Michigan Centre, on the night of the lth of April. These are the same which I have called the duplicates. It is certain that somebody made the matches., It is morally certain that they were made or procured to be made by either Phelps and Lake, who produced them, or by the defendants. The presumption of law, I need not tell you, is that they were manufactured by Phelps and Lake, in whose possession they were found. But Phelps and Lake say that they derived their possession from the defendants. Take notice now that no one but Phelps and Lake ever saw a match in the possession of the defendants before the 8th of April. When actual evidence of the manufacture of a thing cannot be procured, we resort of course to circumstantial testimony. Evidence of the possession of materials and instruments used in making the matches must be received. The materials of which these matches are made, are seasoned whitewood; lumber in the form used by the Railroad Company for cattle guards, varnish, camphene, shoe makers' wax, cotton batting, brown wrapping paper and thread. These forty and more defendants were arrested unexpectingly in the night time and hurried away to prison, where they have remained ever since. The police, armed with search warrants and conveyed in unlimited numbers by steam engines, have searched the dwellings, out-houses, farms, and even bed-rooms, cellars, closets and garrets of the defendants-their chests, bureaus, drawers anid every possible place of concealment, yet not a splinter of whitewood has been found in their possession, nor does that timber grow in the region where they live. Not a thread, nor a filament of cotton, nor a drop of camphene, nor a leaf of paper is to be found. The instruments employed in the manufacture were a saw, a plane and augers. No instrument of either kind has ever been found in, the defendants' possession. If the defendants had made or procured these matches to be made, some merchant in town or country would have come and have told us that he sold some of the materials; some mechlanic, that he furnished the instruments; some spy or 207 casual listener, to prove that he saw some part of the operation, or overheard consultations about it. Not a whitewood scattling, nor plank, nor cattle guard, is found in that neighborhood. No man appears to testify that he ever saw a piece of such lumber bought, or drawn by the defendants, or delivered to them. If the matches were made by the defendants, that secret must have been in the possession of forty men, and must have come to the knowledge, directly or indirectly, of their wives, children, laboring men and stran. gers, sojourning within their gates. The prosecution has held and exercised a power equal to that of torture. They have not extorted, neither by threats nor rewards, a confession that any defendant ever saw or used any such materials, or instruments. The defendants have lain perishing in jatl, subject to the continual visitation and'surviellance of the police, from the District Attorney downwards. No one of the defendants purchases his liberty by confessing knowledge of the manufacture of these matches. Again, it is beyond all doubt that if the defendants made these matches, then they made them to destroy. They never would have delivered them to Gay and Phelps to burn Depots, unless it was certain that when applied, they would have effected their work of destruction. But these matches were made not to burn-not to destroy-but to humbug, deceive, and defraud. They have deceived and defrauded; they have not destroyed, and cannot destroy. So much in regard to the defendants: let us now turn to the other party. The idea of a match or an instrument of such a kind arose in the mind of somebody in the State Prison, at Jackson, at the time when Phelps and Lake were there. In form, the instrument is like the wooden model of the revolving cannon, produced there by one of the prisoners. Phelps admits that he knew of that invention. He does not admit that he saw it, but Phelps was inquisitive and impudent, and the invention was notorious. That invention never came to theknowledge of the defendants. Look, now, at this humbug-this "cunning instrument cased up"-a contrivance, not to burn houses with, but to circumvent credulous and timid Jurors, and punish obnoxious enemies. See if it does not wear an appearance of fraud-if it does not give out an odor of vulgar felony. It is State Prison, all over, and through and through. Remember, now, that Phelps and Gay, in the first interview of their renewed acquaintance, in December, contrived a plot to effect a release of the culprit, Van Sickles, which was to be predicated upon the burning of a Depot. The plot was this:-that a Depot was to be burned, or, as Phelps preferred that it should be predicated upon the accidental fire which had already taken place at Detroit-that the ficticious crime was to be falsely charged upon Joe Boyce, who had dishonored his profession by stealing from thieves, and that it was to be carried out by subpoenaing a first rate man and his wife, who would swear that Boyce told them, before the depot was burned that he was going to burn it, and that after the fire he told them that he had burned it. A token, a visible token, a.sign was necessary to give plausibility tothis plot. Why, a token? 208 On the principle that the Jews demanded of the Savior "a sign." On the principal laid down by Horace, in his instructions upon invention, Segius irritant animos demissa per aures, Uuam qua sunt oculuis subjects fidelibus.* A match like that with which a depot might have been destroyed upon the theory adopted, was just the token wanted. The more curious, the more vulgar, the more terrible the contrivance, the better. Mark, now, that Phelps and Lake spoke of matches long before they were ever seen by themselves or by anybody else. Phelps says that Gay told him "of a match in his first interview in December, while the ashes of the Depot were yet smoking, and said he fired the Depot by placing the match in the cupola, at eight o'clock." As yet, Phelps shows no match. Again, Phelps says that Filley on Christmas, at the ball alley in Michigan Centre, said they had made a match, and had sent it to a man in Detroit, with instructions to place it in the cupola, and that it was placed there and went off first rate." Phelps relates further, that Filley described the match on that occasion, with great particularity. But remember that Phelps, as yet, neither produces a match, nor claims to have seen one. Phelps again says, that about the sixteenth of January, when he went with Wm. B. Lacock to the ball alley, Fitch described the manner in which the match was made, and said that it was sent to a man in Detroit, and that then Fitch took him into the store-room of Filley's bar-room, and showed him a match, saying he would give him such an one to go to Niles. Phelps says, that, afterwards, Filley showed him the same match, at the same place, but fixes no day. Nevertheless, as yet, Phelps produces no match. Again, Phelps says, that on February the 13th, Fitch, at Detroit, told him that he had given two matches to Gay, similar to the one with which he burned the old Depot, and that Gay, on the same day, told Phelps that he had received from the man then in town, who delivered the first match, two matches like it to burn the new Depot with. Still, Phelps shows us no matches. Remember, now, that on the 24th of February, Phelps had employed Lake to assist him in his alleged service of the Railroad Company, and that on that day, he, with Lake, visited Gay and that Gay, then, in an upper bed-room, showed' him a match; but, as yet, Phelps and Lake exhibit no match to any one. Mark, now, that after Lake has been' employed, and not-before, Phelps by the hands of Lake, borrows from Moses Metcalf, a near neighbor augers exactly adapted to the bores or tubes of both of the matches produced in evidence. Here they are; this five-quarter auger, you see, just fits this, the large tube, and this, half inch auger, just fits the smaller one. [Mr. Seward inserted the augers in the tubes.] Phelps withdraws his wife from their home, leaving Lake sole tenant of his house. Moses Metcalf calls at Phelps' house; finds the door closed and the thumb-piece of the latch removed; knocks and Lake, partially opening the door and looking out, like a fox from his hule, receives and answers his inquiries, and closes it again. About * What we hear moves us less than what we see, 209 the same time, Heber Cowden, during the absence of Phelps and his Wife, knocks at the door, the thumb-piece being again out. He is admitted, and finds a stranger, answering to the description of Lake, using augers, saws, planes, blocks of wood and a basket of shavings. Remember that all these mysterious things occurred about the last of March or in the first week in April, and that although Phelps pretends to have seen matches during three months before and to have had a description of them, yet he had never been able to exhibit a match to his employers nor to any other person. You will next take notice that cattle guards made of such lumber, are found all along the Railroad, near to and passing immediately by Phelps' house-that he had the freedom of obtaining and of using the refuse lumber of the Railroad, for fuel or other purposes, with free access and facilities to the lumber yards of the Railroad Co., by whom he was employed, and to all its shops and manufactories. Remember, next, that Phelps left the premises, he had before occupied on the 1st of April-that on the 1st of July, on a search made in -the stable on these premises, then in the possession of Alfred Metcalf, there was found concealed under the decaying hay, in the manger, a broken piece of cattle guard, which, Alfred Metcalf, the new tenant, proved had not been placed there by himself. Judging from the appearance it then presented to a dozen neighboring farmers, as they now testify, and from the appearance that it wears, when produced in court, stained and saturated with the solutions of hay and earth, in rain water, must it have lain concealed there not less than three months. You see the stain, how it has penetrated an inch, by looking at this end of the block. Next, take Mr. Stow's testimony, that on the tenth of April, aftey Phelps had left the premises, and after they had come into the possession of Alfred Metcalf, Phelps, when passing the place with Stow, left him, entered the premises and the stable, and was seen through the window, leaning over in the act of doing something with the decaying hay, which we now know was then lying in that manger. We have thus found Lake, as early as February, in the employ-,ment and in the house of Phelps, and have found Phelps and Lake, in the kmonth of March, in the possession of augers, planes, saws and lumber, and Lake, in the absence of Phelps and his family, engaged ~secretly, in the use of these instruments in Phelps' house. We have moreover, found the material for the matches, concealed on the premises they occupied in March. All these things occurred before the 8th of April; but no match had ever yet been seen by any oie but Phelps and Lake. You will take notice now, that on April ninth, at Detroit, Phelps and Lake show a match to Clark and Van Arman in Gay's house, with the connivance of Gay; and on April eleventh, at.midnight, Phelps shows to Clark, at Grass Lake, another match,'which he says he had that night received from the defendants at Michigan Centre, and that on the 21st of April, the police with Titus at their head, having for two days made unsuccessful search of Gay's premises, are joined by Phelps, who advises a search under the sidewalk, a little remote from the house, and thereupon, in his presence 14* 210 there is brought to light a match, which is produced here as the one shown at Gay's house on the 9th to Phelps and Van Arman. Here is circumstantial evidence of stringent consistency and damning effect against Phelps and Lake, while there is an utter absence of all circumstantial evidence, whatever, against the defendants. I shall be brief in disposing of the falsehoods and sophisms opposed to this circumstantial evidence. 1st, Fitch was hostile to the Railroad. Look at these two matches. Neither of them could fire a hay stack. Was Fitch a fool? No! Then he did not give such a match to an incendiary to burn a Depot with. Was he a villain? Then he would have given to incendiaries, not these matches, but instruments that would have been effectual. 2. Mrs. Phelps, (with Phelps and Lake,) says that the augers were borrowed to mend the wagon springs, and they were mended with a bed cord. But two augers, one of five-quarters and one of two-quarters, were not wanted to bore a hole sufficient to receive a bed cord. We have had views taken by the Jurors of all memorable places and things. Why has not that wagon been submitted to the inspection of the jury, or at least, of witnesses, that it might be seen whether it was ever mended with an auger at all? This mending of the wagon, is clearly an afterthought, a subterfuge. 3. Mrs. Phelps and Phelps and Lake say that the augers were redelivered to Moses Metcalf on the day they were borrowed. I reply that Mr. Metcalf's evidence outweighs the testimony of them all; and he says that he has no knowledge that the augers were ever returned, except from the fact that at sometime afterwards, when he had occasion to use them he found them in their place. 4. Cowden testified that before being admitted to Phelps' house by Lake, he looked through a window by the side of the door and saw Lake writing at a bureau, and being informed by Mr. Metcalf that there was no window by the side of the door, he came upon the stand and, reiterating the impression left upon his mind that there was a window, corrected the error. You have seen the house, and have seen that it has a window on the east side, as easily approached from the gate as the north front, which contains the door. The mistake was a natural one, and in regard to a matter of no importance whatever. I venture to say, that there is not one of you who can tell me how many windows there are in the side of this room, behind you, and describe their location. 5. That the only bureau in the house stood in the bedroom covered with dishes. But you know that the earthern might easily have been removed, and that Lake might have been seen writing in that room, or that, in the absence of the master and mistress of the house,. the bureau might have been removed into the other apartment. 6. That the piece of whitewood timber found does not exactly correspond in age and in fibre to the matches produced. I answer. Here is a blister on the wood exactly corresponding to this blister on the.Niles match. But that question has been submitted to your examination without proof. I am told by mechanics that these matches might have been taken from that identical stick, though per 211 haps not immediately adjoining the part now left. You will determine; but in doing so, remember that it is not necessary to our case that the matches should have to be made with these identical augers, nor from that identical billet of wood. The possession of an instrument and of any such wood implies that the same party could pro-. cure other instruments and similar lumber. 7. That Stow could not have seen Phelps at the manger.through. the window. Your own experiments have satisfied you that Phelps. could have been seen there before the corn in the intervening field grew up. 8. That Stow erred in stating that he saw a!broken piece of cattle guard lying at Reynold's crossing, near Phelp's house, during the last summer. Answer. Timber for cattle guards was laid at several crossings in that vicinity during the summer, and there is entire confusion among the witnesses in regard to the places where it lay and the times it remained there. That is an unimportant matter. 9. That Fenn may have placed the piece of timber under the hay; and that you are justified in assuming that he did, because the defendant Burnet advised the search of Phelps' premises. Reply. Burnett's remarks were the natural suggestions of a mind conscious of innocence, and knowing the innocence of the defendants. Search of the defendants' premises had been repeatedly made, and nothing had been found to accuse them. Why not search the premises of' their accusers? Again, it is urged that the search was made too late; but it was made as soon as Phelps and Lake had made their pretended disclosures on the trial; and until that time the defendants were ignorant what they would have to answer. Burnet's remarks were openly made, on Sunday, to his friends, at the church door, when he was. allowed by the Railroad Co. to go home, and they indicated a reasonable suspicion of the fraud. But how could Fenn or any other person procure such a piece of lumber, and convey it unobserved by night or by day, from any place where it could be found and deposit it in the manger? By what chemical process could it have been so'effectually saturated and stained, in the short space it must have lain there, so as to have deceived and misled the intelligent farmers who agreed that it must have been subjected to the operations of the decomposition of the hay and earth for a period of three monthsT Once more. It is said, that these farmers found it too early. I reply, they say that they found it without an indication of place ororder of search. If it had been found later, there would have been, equal suspicion of fraudulent delay. I recapitulate. We find no matches in the possession of the defendants, no materials, no implements, nor traces of the manufacture. No one of them has ever spoken of matches. We find Phelps speaking of matches three months before any are seen. We find Lake employed by him. Lake is an engineer, and skillful in. working in wood. We find him, with tools and materials, at work mysteriously. No match has ever been seen by any person where Phelps was not himself present, and did not personally produce it, or indi 212 cate where it could be found. Phelps and Lake after procuring tools and materials, and being seen at work, produced the matches proposed. Those matches serve the purposes of the plot by Phelps and Lake. They are utterly ineffectual to serve any purpose which the defendants could ever have conceived. The conclusion then is, that the matches were made by Phelps and Lake, and thus is the engiineer "hoist with his own petard." WVe have then, established a second complete, conclusive and independent defense. III. Here is another, a third defence established with equal certainty which is alike independant and equally conclusive, viz Phelps and Lake fraudulently deposited in Filley's house the match which they pretend was delivered to them on the 11th of April, by Fitch and Corwin. You will see at once that if this position is true, then, it may be equally true and probably is true that they fraudulently depo-:sited in Gay's house the match, found there. If their testimony is:false in regard to the circumstances under which the match was found at either place, then the whole fabric of their evidence, and of this great cause, falls to the ground. I recall your attention, briefly, to the narrative given by Phelps and Lake concerning the manner in which they obtained the match at Michigan Centre, April 11th. You will remember that on the 8th and 9th of April, Phelps and Lake had exhibited the match at Gay's house to Clark and Van Arman, Lake says that it was determined then, at Detroit, on consultation with Clark to go to Michigan Centre and get a match there. On the tenth they arrived at Phelps' house. On the 11th they went early in the morning together to Grass Lake. They proceeded thence by way of Gager Cady's house. They went a short distance westward, then northward to Michigan Centre, by the straight middle road, which they struck for East fo Beei.nan's corners, and they pursued this road directly to Michigan Centre; that they stopped no where on the way but at Gager Cady's house; that they did not separate, that they did not go through the village of Leoni; and that they did not carry with them this match nor any box, bundle, or baggage of any kind whatever; that they had nothing in their wagon but some loose straw; that they found Filley at home, told him that they had come prepared to go to Niles that night; that Filley replied, he was glad of it, that they would be ready for them; that Phelps asked if the boys were there, and on Filley's answering they were not,!Phelps replied, that he would go to Leoni and give them notice, and they might come down if they pleased; that Phelps returned on the north road to Leoni and proceeded thence to Grass Lake; that Lake being ill, after taking some refreshments, laid down, slept. an hour, arose, found Filley in the bar-room, that Filley and himself fixed a pen-stock; that Filley went to the barn and brought thence this Niles match under his coat, with a box in the other hand and sent the children out of the bar-room. Lake examined the match; that he, Filley, then put the match in the box, nailed it up, deposited it in the store-room and put the key in his own pocket; that two young sportsmen came in from Jackson; that Filley sold one of them a fish; that, at sunset, Filley said he must take some persons, who were 213 hanging about there, a fishiag; that Lake attended him to the pond, that he left him there, without receiving the keyfrom him, returned to the house, and there found Phelps, with Myers, Corwin, Fitch, Hudson and Faulkner; and that, after free drinking and many consultations, Fitch called Corwin to fix them off, and Corwin took thekey from his pocket, opened the door of the store room, took out that same box, carried it out of the house, put it into Phelps and Lake's wagon,. and told him it was right side up with care, and-that Phelps. and Lake departed in one wagon, and Myers and Corwin returned. to Leoni in another. Gentlemen, Phelps had never seen Gager Cady nor his horse. Hemade no serious effort to buy a horse. He had no use for another horse..Could his visit to Gager Cady, on that occasion, so far out of the way, have had any other purpose but to mislead observes, concerning the route of his journey to Michigan Centre. It turns out, I dare not say providentially, to have been the means of disclosing their'depraved designs. On that morning, James Peeler and Clarence H. Kellogg were drawnig timber up the road leading from Ga:ger' Cady's to Grass Lake. They met Phelps and Lake, knowing" only Phelps. Peeler accosted Phelps, who courteously returned thesalutatiou. Both Peeler and Kellogg saw an oblong bundle a foot; long,, six inches deep and six inches wide, tied up in a red handkerchief, lying on the bottom of the wagon. Peeler asked Kellogg what he thought was in that bundle. Kellogg replied that, if the stranger was a musician, it might be a box of musicial instruments; but he believed it contained bogus money, or a contrivance to make it, with-a remark most natural, when you consider that Phelps noto — riously pursued the profession of either a villain or what is called a, stool-pigeon. Israel R. Brown, sexton of the church at Grass Lake, saw Peeler and Kellogg arrive at that village between ten and eleven o'clock, with a load of timber, and he identifies the day by religious services in the church. Gager Cady was sitting in his wagon when Phelps drove up at his door, They stopped and conversed on a proposition for the purchase of a horse. Cady saw something in Phelps' wagon about a foot long, six inches wide, six inches deep, and tied up in a red handkerchief. James S. Seacord, who lives at Lconi, had been that morning sent by his employer, Dimmick, down the Napoleon! road to search for a beetle and wedges, which had been left in the woods, a mile and a quarter from Leoni, on a road which Phelps and. Lake' deny that they traveled, and at a point a quarter of a mile south of the place where they allege they crossed that road. On coming out of the woods. Seacord saw two men pass in a one-horse wagon at a distance of three rods, between the lands of Beeman on the east and Mills on the west. There, nearly under a sassafras tree, one of.' the men alighted, took from the wagon a bundle of oblong shape,. about a foot long, &c., and tied up in a red handkerchief, put it under his arm, got over the fence into Mills' lot and went off northwesterly across the fields. The other proceeded on his way in the wagon. Seacord walked up to the distillery and thence to Leoni,. 214:and there saw the same wagon, with the same iron-grey horse fastenied at Cuykendall's tavern. IHe identifies the day by a lawsuit between Freeland and Taylor. Benjamin Dimmick corroborates SeaEord, by saying he sent him on some day in the same week after town meeting to search for the beetle wedges at the place indicated. David Beman testifies that on Friday after town meeting, that is to say, April 11th, in the morning, he was at work splitting rails in the aear of his farm out of sight of the road. He sent his son to a knoll stowards the road to see whether cattle were not on the wheatfield. His son having stayed, as he thought, unreasonably long, Beman tcame over to the knoll, and arriving there, he saw, at a distance of:some forty rods, two men, who were unknown to him, come up in a one horse wagon. They stopped near a sassafras tree. One got wt, took a bundle or something else that was red out of the wagon, got over the fence, and went across Esq. Mills' field so as to appreach diagonally the middle road leading to Michigan Centre, pasting Penfield's sawmill. The other man drove on in the buggy across the middle road towards Leoni. He saw Jesse Cozier come down that middle road with a load of rails and pass the man in the'wagon on the way towards Leoni. He identifies the day by the payment of a dollar which he owed to a neighbor and paid on that day, charging his son to remember it as, he was an illiterate man and kept.no accounts. Emmet Beman, his son, explains the cause of his delay in going to the wheatfield, and says that he arrived on the hill overlooking the road and there saw two strangers come up in a one horse wagon.hat one of them alighted, took a bundle in a red handkerchief, placed it under his arm, climbed over the fence into Mills' field and went westward. The other man with the wagon and the iron gray horse proceeded north towards Leoni across the middle road, and the witness saw Cozier with his load of rails, and saw the one horse wagon pss him on its way to Leoni. He, himself, soon after took a load of rails to Leoni, sold them to Toll, procured a dollar, and paid it to is father's creditor, and he identified the day as the same when he saw the court and parties in the law suit between Freeland and Tayor. Jesse Cozier swears that on the same day Phelps passed him at the point indicated on the Napoleon road and was alone, and this was north of the place where the middle road crossed the Leoni w~ad, Thus we have these two witnesses, Phelps and Lake, separate and apart: Phelps in the wagon going northward towards Leoni, Lake going westward through the fields on foot with a red bundle. We now follow Phelps on his windingway. Mrs. I. D. Toll, the wife of Isaac D. Toll, lives in Leoni in the louse on the south west corner made by the intersection of the north load from Grass Lake to Michigan Centre with the Napoleon road. -Shesaw a man in a one horse wagon with an iron grey horse come -rp the Napoleon road. His horse took fright and ran with him as <'e drove in. He reined him up and fastened him at the post at CuyAeadall's, facing eastward. Isaac D. Toll, the merchant, describes 215 the same occurrence in the same way. A. S. Luce, a Justice of the Peace, says that Phelps' horse took fright in crossing a sewer, ran around the sign post, was reined dp and fastened looking eastward. John Cuykendall, the tavern keeper, was standing on the step when Phelps arrived, and describes the same occurrence in the same way. Luce and Toll identify the occasion as the day of the law suit before mentioned, which was tried before Luce. On that same April 11th Mrs. Toll left Leoni before dinner and went down to visit Mrs. Fitch at Michigan Centre. She arrived there about 12 o'clock and then saw the same wagon with the iron grey horse fastened to a post at Filley's tavern. About three quarters of an hour afterwards she saw the same person now identified as Phelps mount the wagon and drive offsouth across the railroad, which would be his route to meet Lake coming up the road passing by Penfield's mill. You will next observe that Filley was not at home when Phelps arrived at Michigan Centre, nor when he left, nor had Lake then arrived there. The two young men; Allen and Kane, who came down from Jackson to Filley's for shooting, that day, arrived near 12 o'clock-dined in the yard while Filley dined in the house; they say that they saw Filley, spoke with him and went with him to the pond to shoot ducks, soon after one o'clock. They saw neither Phelps nor Lake at Filley's. It is manifest that Phelps arrived at Filley's after he had gone, with Kane and Allen, to the pond, and so that Phelps did not see Filley. Let us now look for the whereabouts' of Lake. Ebenezer Taylor says that he was a witness in the suit of Freeland and Taylor; that he was returning on foot from a neighbor's who lived near; Penfield's mill, and on the middle road, near the mill, he passed a person corresponding in stature and age to Lake, walking westward with a red bundle which seemed to him like a small trunk tied up in a red handkerchief. He thought so because he had such a trunk himself. Whether Lake encountered Phelps and received information from him that Filley's house was clear of strangers or not, it is quite certain that Lake entered the house while Filley was absent with Kane and Allen at the pond. Van Renselar Arnold testifies that he worked with Filley in the woods until eleven o'clock that day. Filley, at parting, said he should go home to dinner, and after dinner go to the pond and look at his nets; and told him to come down at 3 or 4 o'clock, and he should have a-fish if Filley found any. Kane and Allen testify that between 3 and 4 o'clock Filley left them at the pond and returned home. Arnold says he overtook Filley a few rods from his house, with fish, near 4 o'clock P. M. That Filley went in at the south door, that is, the door of the kitchen, and he proceeded to the north door, which opened into the bar-room. While standing there, a stranger came in from the back door, which opens into the garden, and towards the ball alley, and said, "How do you do, Mr. Filley 1" and Filley replied, "How do you do, Mr. Lake?" That the stranger then stooped and seemed to take up, or at least, to be raising some-;thing, and said, "I have a bundle here, I want you to take care of 216 it while I go up south." Filley went into another room, came back,, unlocked the door, and told Lake he might put the bundle on or in a barrel; and Lake put a red bundle into the room and himself locked the door, and threw the key upon the counter before Filley. Arnold received a fish from Filley, and went home. Arnold identifies the day by an entry, made in his day book, of the labor performed. He has been, with his book, under a subpoena, duces tecum, from the prosecution, and they have not called for the production of the book here. He admits that he was once in State's prison in New York, but it was thirty7eight years ago. He was pardoned by Gov. Clinton, soon after his conviction, on the discovery that his conviction was unjust. He has since led, for aught that appears to the contrary, a blameless life, and he stands unimpeached. Astute counsel perplexed his memory about the date when he made a visit afterwards to Brooklyn, but he was abundantly corroborated as to the facts of the visit, its purpose, and the occurrences connected with it. Mrs. Fitch, the widow, corroborates him conclusively by the statement that she saw him and Filley come together to the house in the afternoon; that Filley had fish, and she remarked to Mrs. Toll, who was then visting her, that it was a pity those fish did not come before, as they would have had a nice pickerel for dinner. She identifies the day as the one on which Mrs. Toll, Mrs. Dimmick, and. Mr. Cross were at her house. Kane and Allen came up from the pond at 5 o'clock and thenI found Filley at home. They went into the ball alley and were followed by a stranger named LAKE, whom they had not seen, neither on that day nor ever before. Harley Woodward, who worked upon a farm of Filley, says that on April 1 th, in pursuance of an appointment made by Filley, he met hiln, not at his house, but at his barn, about sunset, with his son and Lake, and went'with them to the pond to fish. After preparing wood for lights and kindling a fire, and when about to push off, Lake said he would return, and he might perhaps want to go away before Filley should get back; and Filley said, "Here is the key that unlocks that room." Phelps, Lake and Faulkner all agree that Corwin had the key in the evening, and unlocked the door and gave Phelps and Lake the box. It is certain that Filley and Corwin did not meet that afternoon; for Corwin came from Leoni to Michigan Centre, that nighty while Filley spent the afternoon and evening at the pond, except the interval between 5 o'clock and sunset; and during that interval, he was there at his house. Lake must have therefore received the key from Filley, at the pond, and must have delivered it to Corwin when he came there at night. You will spare me a few moments to comment upon the exceptions taken to this important testimony. Like the answers, given by the prosecution, to our exposure of the humbug of the matches, it consists of the afterthoughts or subterfuges of this brace of miscreants. After a fierce struggle between the counsel and the witnesses, Peeler and Kellogg, that left their testimony undisturbed, and after the coun — 217 sel found that they could not shake Gager Cady from the position that he was now, as he always had been, under the impression, that he saw such a bundle as he described lying on the bottom of Phelps' wagon, they asked him whether it might not be something else as well as a box? He answered, yes. "May it not have been a great coat?" "Yes, it might;" and then, after the lapse of a month, Lake appeared upon the stand and a great coat, with palered flannel lining, was laid before him. He then remembered that on April 11th he took that great coat with him, that he laid it upon the seat because, first, the weather was too warm to wear it; secondly, the coat was inconveniently small; and he supposed that the coat might have slipped from the seat into the box unnoticed; but he still resolutely denied that he separated from Phelps, or that they took a different route from that they had before described; and he stated, also, that at no time that day or night did he wear the great coat, although he was sick and was riding in an open wagon from 10 P. M. until midnight. When asked what became of the coat when he arrived at Filley's, he answered that if he took it from the wagon he hanged it up in Filley's bar-room; that, if he did not take it from the wagon,, it remained therein; and so it must have been carried by Phelps to Grass Lake and back again. Yet Phelps had no other recollection about the coat, than the fact, that Lake took it with him in the morning, a fact stated for the first time on.his examination at the close of the case. Gentlemen, that coat with the red lining, if it had really been Lake's great coat and worn on that occasion, would not have needed an apology for its being too small! Peeler and Kellogg would have suspected no bogus money in the plaid lining of a traveler's old great coat, in the month of April. Gager Cady could have no impression of a bundle tied up in a red handkerchief, if what he had seen was only a great coat lying on the bottom of the wagon. Badly as the grert coat fulfills its office thus far, it fails altogether to explain how Phelps and Lake happened to be coming up the Napoleon road, which they swear they did not travel, at all. Lake not only denies that he took the great coat from the wagon and carried it across the fields, but he denies that he left the wagon at all. Seacord was within a rod or two of the travelers, and could not have mistaken the coat for a bundle. Mr. Taylor could not have mistaken a coat with red lining for a trunk tied up in a handkerchief, when it passed within three feet of him, and was changed from side to side; and certainly Lake could have had no such care for an old coat with red plaid lining, as to, have carried it across the fields on foot, when it could have been carried by Phelps in the wagon, and it was too warm to wear the coat when riding; nor could he have thought it necessary to lock it up away from the children, in Filley's store room. If he had been so careful of it, then he would have remembered at first his taking the coat with him and placing it in its depository. 2. The prosecution allege that a person standing in the places described by Beman and his son, could not have seen the arrival of Lake and Phelps under the sassafras tree; nor could they have seen Lake alighting from the wagon and climbing over the fence, and car 218 rying such a bundle across the field. So confident were the prosecution of this that they challenged us to give them a view, obliging us to do so, by declaring in the presence of the court, that no matter how many witnesses they might produce to prove these physical impossibilities, yet that the defense would swear down the hills and swear up the vallies to contradict them. The view was granted, with what result you know. I think you are satisfied, that, standing where those witnesses stood, they could not only see all that they described, but, I had almost said, that nothing else could be seen theie. You remember how, on repeated trials, under that pale, clear shining sky, we recognized the bundle which looked provokingly red; and that we distinguished always the person who carried it, and his dress, gait and walk, however he attempted to baffle us. But, gentlemen, grant that Beman and son were effectually discredited, there would still remain undisturbed the testimony of Peeler, Kellogg, Cady, Secord, Taylor, Arnold, Toll, Luce, Cozier, Cuykendall and Mrs. Toll. The testimony of either one is sufficient to overthrow utterly the evidence given by Lake and Phelps. The testimony of all these witnesses corroborates and establishes that of Beman and his son, and the mass taken together is insurmountable. 3. It was necessary for the prosecution to rebut the evidence that Phelps was seen at Leoni that morning alone. This was done by after thought the fourth. Lake and Phelps were recalled to the stand and testified that at some time previous to April 11th (Lake says a fortnight, Phelps says a month) they, Lake and Phelps, were passing from Michigan Centre by that middle road which led past Penfield's mill, that they arrived at Beman's corners, turned to the left and took the road to Leoni; that Lake left the wagon opposite a field, and entered it to speak to Corwin, whom Lake supposed he saw there; that Phelps passed on; that his wagon struck a hoop at the corners, the horse took fright, ran away, was reined in by Phelps and fastened at Cuykendall's tavern. This device, gentlemen, is quite too artificial. It could scarcely be supposed that Phelps' horse ran away at precisely the same hour, and at the very same place and under the same circumstances, on two different days. And is it easy to believe that Phelps and Lake are accurate, and so many other witnesses in error about the day when the occurrence took place? It is hard to believe that Lake should have left the wagon on so flimsy an excuse, for it was at 11 o'clock in the morning, and yet he mistook the person in the field for Corwin, whom he knew as well as you know me. Lake says, however, that he followed the wagon on foot, and joined Phelps at the house after the horse had been fastened. Phelps and Lake have not attended clearly to the details of our evidence, and therefore they alleged that the horse was frightened by a hoop instead of the jar produced by passing over an open sewer, and both of them describe him as being fastened, after the accident, with his head westward instead of eastward! Again, the journey was utterly without object or end. They say they went to Michigan Centre to see the defendants. They knew that Fitch was not there, but at Lansing. They say that Mrs. Filley said Filley 219 was absent, but they do not say she told them where he was. Corwin, Myers, Barrett, Hay, Penfield and numerous other defendants then lived at Michigan Centre and in its vicinity. They neither looked nor inquired for them. They went out of their road half a mile to Leoni, to see the defendants who resided there. They neither found nor searched for any of them, altho' Williams boarded in Cuykendall's house where they say they stopped, and worked close by. Besides, they saw Charles Cuykendall, the son, instead of John Cuykendall, the father, who says that he was standing upon the stoop, and received Phelps on the occasion when his horse ran away. Charles Cuykendall is not brought to sustain their subterfuge. But Phelps and Lake swear that they did not on that occasion, see either Mr. Faulkner, Mr. Toll, or Mr. Luce or John Cuykendall, or Mr. Kellogg; that is to say, they allege they saw a person who was not there and deny that they saw five persons who swear they saw Phelps there on the only occasion when his horse ran away. Lake says that for aught he can remember they went home without dinner, but Phelps on urgent necessity remembers. that they obtained refreshments not at Cuykendall's where dinner was on the table, but at Haddan's grocery below. Their journey was therefore without an object and without results. They kept a diary of their journies and labors in the service of the Company. They gave its contents fully on the direct examination. This journey, when, according to their account, the horse ran away, was forgotten altogether and was not put down in the diary, and it is only remembered now, because it becomes necessary to explain and rebut the testimony of the defendants. Unfortunately moreover for the credit of the invention. Phelps had denied on his previous cross-examination that his horse had ever run away with him at all, in Leoni. And what is still more unfortunate Wm. H. Hudson testified, before this question arose and when it could not be expected to be material, that on the night of April 11th, at Filley's tavern, Phelps told Fitch that his horse had run away that day, and spoke of it as an occurrence that had happened that very day and never before. Permit me to recall now, Gentlemen, what has, we trust, thus far been demonstrated. 1. That no such conspiracy as is alleged ever existed. 2. That the question of such a conspiracy is an immaterial and false issue. 3. That the cause rests upon the evidence of admissions proved by Phelps and Lake only. 4. That this evidence of admission must be false-first, because the pretended match was a humbug and could not have been used to fire the depot at Detroit;-secondly, because the matches were made, not by the defendants, but were fabricated by Phelps and Lake; thirdly, because the matches produced here were not received from the defendants as alleged by Phelps and Lake, but were fraudulently placed by Phelps and Lake in the depositories where it is pretended thley were found. These points establish three conclusive defences against the pros 220 ecution. Nevertheless, to remove all doubt and to enable you to satisfy the public that the verdict of acquittal which you are to render will be right and just, I shall first proceed to show that the admissions proved derive no support from collaterial circumstances,secondly that they are rendered unworthy of credit; First by the depravity of the witnesses; Secondly by internal evidences of falsity in their narratives; and Thirdly by conflict with facts incontestibly established. First there is a total want of corroborating circumstances. You will necessarily inquire whether the depot at Detroit was burned by an incendiary at all. This is a circumstance indispensable to be proved. The prosecution have undertaken to prove it, and have failed. The balance of proof is that the fire was the result of casuality. All parts of the building except its outer walls were of combustible materials. It was eight hundred feet l~ong, by one hundred feet wide, with wooden roof and floors which were pierced with innumerable hatchways, and the roof was surmounted by three cupolas with open windows, and more than a hundred hatchments or scuttles. If you say that the mineral paint upon the roof, and the mortar between the floors were a security against accidental fire, I answer that the building was actually consumed by that element. It was rendered extra hazardous by machinery, which, although it may have been properly constructed, is not proved to have been examined, or oiled, on the day before the fire. Workmen had been employed with lights that night from seven until eleven o'clock in the wheat bins, and it. is proved that the wheat bins were lighted with tallow candles placed in narrow, shallow tin sconces, suspended against unsmoothed posts. It is proved, moreover, that candles had been known to be taken from the sconces and to be secured only by being placed in a bed of tallow, melted for that purpose upon the top of the bin. It is proved that combustible merchandise, such as trunks opened and bags of cotton, were deposited in the building under the cupola, and there may well have been in the great variety of commodities stored there, matter that would have taken fire by spontaneous combustion. At least there was abundant food for fire, when once ignited. That is proved by the rapidity of the flames. The building stood upon the wharf and was liable to take fire from the sparks of steamers arriving and departing by day and by night. It was exposed to fire also from within, to be communicated by engines which arrived and departed at all hours of the day and night. The cupola, hatchments and dormant windows, served to create currents of air by which burning cinders would be drawn inwards and upwards, and when extinguished, would be deposited in heaps in the cupola and below. If you say that the engines of steamboats and locomotives were furnished with spark catchers, I answer that spark catchers are not sure preventives. If perfect they at least wear out. Three several cases have appeared in proof during this trial, of buildings, wood and forests burned by passing engines, although they were provided.with the same means of prevention. You have heard Mr. Smith declare that his mills in Clinton were burned by 321 machinery just like what was in the depot. A fire occurred at Chicago, scarcely ten days ago, in'a storehouse having a steam engine guarded just as the stationary engine here was secured, and it is supposed to have taken fire from the engine room. Ten acres of the site of this city, including the ground on which we stand, were burned over by a vagrant spark from a passing steamboat, which was provided with a spark catcher for all that we know. In regard to the place where the fire originated, half a dozen witnesses declare, with confidence, that they arrived early at the conflagration, and that the fire broke out, not through the scuttles in the roof, but in the cupola. These witnesses are Captain Turner, Patrick Rowland, B. F. Bush, W. H. Green, and C. Savinac. But these witnesses are opposed by as many, to wit: R. Jones, Mr. Johnson, Wm. Harsha, C. W. Sims, Mr. Tuttle and John Cambell, each of whom declares that from some commanding position he discovered the fire immediately after it appeared, and that it broke out through the scuttles on the roof on the north side, half way between the eaves and the Cupola before it appeared in the Cupcla. One of the plaintiff's witnesses says, he ascended the stairs and found the fire burning the interior below, before it burst through the cupola, and that then it had reached only half way to the dome or roof of the cupola. Criticisms may be made on the testimony of each of these witnesses, but the result would be that all were equally truthful, and owing to the peculiar circumstances of the occasion all equally liable to mistake concerning the subject upon which they have testified. As it is not proved how the fire originated, so it is now and will forever remain, uncertain in what part of the building it was first discovered. But the peroscution must make out on their side that the fire originated in the cupola. What is not proved beyond a reasonable doubt in a criminal case, is not proved at all, and therefore you will assume that not only is it not proved otherwise than by the admissions that that the depot was burned by an incendiary, but that it is not proved that the fire broke out in the cupola. But, Gentlemen, if the fire did occur in the cupola, what then? It does not aid the people's case. The fire would have originated there more likely than elsewhere, if it had arisen from burning cinders discharged by an engine or by a steamboat, or even from heated elevators; and it would have been seen there as likely as elsewhere if it had arisen from selfconsuming merchandise which was under the stairs leading to the cupola. We have already noticed the impossibility of firing the building with such a match as is described, and the impossibility of carrying it-through the streets and the bands of workmen in the depot. Gay was the last man in the city or in the State who could have performed such an act unobserved. He was equally profligate and notorious. He could not have passed in and out of the depot even in the day time, with or without such a box as is described without having excited the most intense suspicion. But the counsel for the prosecution say that Gay confessed the burning, and that he would not 222 have confessed if not guilty. I reply that the testimony shows that Gay confessed he burned the depot for a reward of $150, and that,he had engaged to burn the new one for $200, with the objects of screening one associate in crime and punishing another. The man who would burn a depot for $150, would also on a promise of impunity and with an inducement of $150, or even less, confess such a crime that had never been committed, and charge others with accessories to crimes of which they had never heard. But we shall consider Gay's claim to credit hereafter. Thus it results: (1.) That it is not proved that the depot was burned by the incendiary named, and (2.) That it is not proved that the depot was burned by an incendiary at all, nor what is equivalent, that the depot was not fired by cas. uality. The prosecution seized upon an alleged change of Gay's pecuniary condition as a circumstance to corrobrate. the evidence which charged him with having burned the depot. Certainly, they proved that he was very poor before the depot was burned, and they proved that after the fire he was found in possession of money and property equal in value to $150. It devolves upon us, therefore, to show that Gay at that time obtained that sum from another source. We have proved by Samuel Mead, that in the month of October, previous to the fire, he paid Gay fifty-two dollars and a half, and that he had two notes of $50 each; and we have proved by Erastus Gay and by the People's witness, Cicott, that G. W. Gay received for these two notes $96,80, making in the whole $149,30. This circumstance of Gay's improved fortunes thus disappears, and the prosecution is left without even a shadow of a circumstance to support the allegation that the depot was burned by the alleged incendiary. It will be my duty to labor in the next place to show that the witnesses by whom the admissions thus uncorroborated are proved, are unworthy of credit by reason of their depravity. Who are those witnesses? GEORGE W. GAY, HENRY PrIELPS and HEMAN LAKE. I call Gay a witness, for although in name he was once a defendant, yet he was dead before this trial began; and, being dead, he was no longer a defendant. Before the corpus delicti was proved-before a plot or conspiracy between him and the defendants was proved, if any has been proved at all, his unsworn declarations made when living were received in evidence in this trial on the miserable pretense of a promise, given by the Counsel for the People, that they would afterwards bring these declarations home to the defendants. I call the attention of Courts and Lawyers, whoever and wherever they may be, to whom these proceedings shall in anywise become known,. to the consideration of this extraordinary proceeding. I beg leave to remark concerning it: First, that the admissions should have been postponed until after the fulfillment of the promise. Second, that if the declarations of Gay had been brought home to the defendants and confirmed by them as promised, that then the declarations of the defendants so confirming would have constituted the evidence which ought to have been submitted, and that those confirmations 223 would have rendered the admission of these hearsay declarations of Gay unnecessary and superfluous. But the declarations are nevertheless here, and so practically Gay, the Principal, although never sworn, and although he is dead, stands before the Court a witness to prove the corpus delicti as'well as to charge the defendants with being accessories to his own crime. The question now is upon his credibility. A few preliminary explanations of principles, before I discuss the witnesses Phelps and Lake. Conviction of an infamous crime is, by the common law, a disqualification. No person, so convicted, can testify at all. A pardon restores competency, but leaves the credit of the witness to the discretion of the jury, under the circumstances of the case. The laws of Michigan allow a convict felon to be a witness, but refer the question of credibility to the jury in the same way. The principle of these laws is thus explained by authority: "Under the general head of exclusion, because of insensibility to the obligations of an oath may be ranked the case of persons infamous-that is to'say, persons who, whatever may be their professed religious belief, have been guilty of those heinous crimes which men are not generally found to commit, unless when so depraved as to be not Jound worthy of credit. The basis of the rule seems to be that such person is morally too corrupt to testify, that he is so reckless of the distinction between truth and falsehood, and so insensible to the restraining force of an oath as to render it extremely improbable that he will speak the truth at all. Of such a person, Mr. Baron Gilbert remarked, that "the credit of his oath is overbalanced by the stain of his iniquity." You see, then, that it is not bad character nor conviction of crime, that constitutes the cause of discredit, but it is the depravity of mind of which bad character or conviction is the evidence. Who was George W. Gay? A man of fifty years or upwards, who had been convicted of more than twenty crimes, ranging from petit larceny to murder;, who had been more than once a tenant of State Prisons in several States; a man who lived in daily association with culprits; and who at the time kept a house of ill-fame, and thus subsisted by the debasement of one sex, while he harbored the most depraved of the other. He eagerly accepted of Phelps' proposition to burn the new depot in Detroit, and to charge the commission of the crime upon his recreant associate Boyce, and to suborn witnesses to fasten it upon him, and thereby procure the discharge of Van Sickle; while he would at the same time secure, as he alleged, a double reward of $200 from supposed enemies of the Railroad Co., for burning the depot, and $1000 from the Railroad Company, for false information concerning the incendiary. Need I say more, to show that Gay's character was so infamous as to deprive his unsworn, uncorroborated testimony of all claims to credit? Henry Phelps was convicted, and underwent nearly in its whole extent the penalty of the crime of stealing horses. He says he was unjustly convicted. That was hisplea on trial; but it was proved to. be false. 224 Heman Lake was convicted of aiding ia thief in his escape from prison, and suffered the full penalty of the law. Counsel deny that the crime of which he was thus convicted, has rendered him infamous. The distinction is a technical one, not worthy of an argument. Larceny is an infamous crime. He who assists a thief to escape from punishment, was probably himself an accomplice in the crime of the thief, at least he must be moved by sympathies as immoral and criminal as the act of larceny itself. Thus these two witnesses stand before you as men convicted of infamous crimes, men, "the credit of whose oaths, although it should be without any contradiction or impeachment, is overbalanced by the stain of their iniquity." It is certainly a work of supererogation to prove that'a person convicted of an infamous crime is esteemed in the community in which he lives unworthy of credit, for that is only to prove in an individual case the soundness of the legal maxim, "that infamous crimes indicate a mind insensible to the obligations of an oath." I think this is the first case in which the prejudiced state of the public mind has required that a witness who had been thus convicted, should be impeached by his general bad reputation in regard to truth and veracity. That proceeding has been adopted in this case in regard to Phelps. But who is Henry Phelps? He is the prosecutor on whose naked oath fifty citizens were arrested, and upon whose oath chiefly if not altogether, the indictment in this case was found. Upon his oath, sustained by his confederate, Lake, this prosecution is suspended. He was born in Bloomfield, Ontario county, N. Y., in 1814, a son of respectable parents who lived in easy circumstances. He removed with them to Wheatland, Monroe county, during his childhood. He received an education, which, although not a liberal one, surpassed what was ordinarily obtained in country schools and academies, and which qualified a vigorous and shrewd mind sufficiently for any kind of business, in any department of private or of public life. He came to Michigan with his parents, and settled in Highland, Oakland county, in 1835. He pursued no regular occupation there, but was forward and active. He conducted litigation in justices' courts, and was at that time called (according to the testimony of one of his friends) " a fine fellow." He was elected town Clerk, and commissioned as captain in the dragoons of the Militia. But nothing that he began was ever finished, nothing that he planted ever ripened. Political preferment ceased, when rumors of falsehoods and frauds gained circulation. The dragoons, who enlisted under his command, never equiped, and they were ultimately disbanded. After five years, thus spent he went to Michigan Centre, where Abel F. Fitch resided, and there Phelps bought a distillery and its stock, with drafts on a person in New York, who could never be found. After six months the distillery reverted, with losses; (never yet reimbursed,) to its former owner, and Phelps immediately thereafter became a merchant at Milford, near Highland, his former residence. A month or six weeks passed away, and the stock of goods was suddenly and mysteriously surrendered to the merchants, at Buffalo, 225 from whom it had been purchased, and Phelps resumed his business as an advocate in justices courts. He married about this time, and the counsel who defend him here say he has children. His affidavits were questioned, his arts in conducting trials suspected, his reputation waned, and after three or four years he was convicted of the infamous crime which has been mentioned. He was subject to occasional epileptic convulsions. He feigned them during his trial and affected sickness to avoid judgement, but without success. He feigned illness to excuse himself from labor in the prison. Suspected and closely watched there, he failed to propitiate the police until the sixth month in the fifth year of his term had elapsed, and then he was pardoned. On coming outof prison he gathered his family in his ancient home; but habits of regular industry and domestic occupation' disgusted him. He invited his associate, Lake, who had just been discharged from prison, to join him, but at first without success. After the lapse of about a year he hired himself to the District Attorney of the United States, in the occupation of whatis called a stool pigeon, that is, one who for hire joins and leads villains in crime to betrgy them to justice; or, as it was described by the counsel for the prosecution, the business of a Rogue " set to catch Rogues." While in that capacity, he renewed the acquaintance which, before his imprisonment, he had maintained with Gay, and in the very first interview opened to him the plot, if he is to be believed, to screen a culprit from punishment, by a false charge of the crime of burinng a depot, upon an unoffending person. Having drawn Gay into that scheme, he offered himself to the railroad company to be enrolled, and was accepted at a regular salary of forty dollars a month, as a member of their band of spies and informers. His engagement was to furnish sufficient evidence to bring Abel F. Fitch and his supposed associates to trial, for some felony against the railroad, out of Jackson county. He is cunning, plausible, bold and persevering. There he sits. Men imagine that they see his history'written in his form and features. They say that he looks lean and malicious, and that he " Will look hollow as a ghost,' As dim and meagre as an ague's fit." They say (superstitiously perhaps) that "So he'll die, "'And rising so again.." His mother, when she shall meet him in the court of Heaven, " She shall not know him." He is impeached by one hundred and twenty-one witnesses, all of whom say his reputation for truth and veracity is bad, many say very "bad; all say it is so bad they would not give him credit on oath. He.has lived in Sylvan, since he came out of prison. Sylvan, Grass Lake and Sharon are contiguous. These three towns, send one hundred and eleven of the witnesses. Twenty-five omitted to state the distance of their homes from Phelps' residence. The average distance of the remaining eighty-six is two miles and a third. One of these, an honest anand sensible German, persisted in declaring that'his reason for discrediting Phelps was, that his heart told him not 226 to believe a man who had been in state prison. All the others testified from a knowledge of Phelps' reputation,. before he went to prison, or before or after this prosecution began; twenty-seven of reputation since he came from the prison, and before as well as after the prosecution commenced; eight speak of his character before he went to prison, and not atferwards; six of his character while in the state prison, and seventy-seven of his fame, all the way through from 1840 until now. These witnesses when cross-examined by the Counsel for the People and required to describe the rumors which have ripened into this withering, blasting impeachment, say that he is charged with perjury, larceny, employing labor without paying its hire, travelling under mysterious and suspicious circumstances, swearing through the Courts causes in which he is employed as an advocate, false pretences of having recovered large sums of money from the State for unjust imprisonment, feeding his horses with his neighbor's wheat and oats, offering to lend fictitious sums of money on mortgages, pretending to imaginary contracts for grading the Railroad and building depots, false pretences about the title and quality of lands, baseless pretences about an agency of a factory that has no existence, hypocritical pretences to piety, malicious swearing against his best friends for money, a universal suspicion of dealing in counterfeit money, and associating with and harboring depraved and abandoned men. Among the witnesses are laborers, mechanics, farmers, a lawer, doctors, constables, magistrates, judges, members of the House of Representatives, Senators, and many lay members and officers of various religious societies. One of the witnesses is a brother in-law of Phelps, and a large number of the witnesses quote his father-inlaw for the leputation which they assign. That father-in-law refused to appear under our supcena, and was not produced to repel the impeachment. When this singular exposure was made, the learned District Attorney remarked that it was said in the Scripture that a man's enemy should be they of his own household." How guilty a life must that be that forfeits the enjoyment of all the natural affections! When you consider the numbei of these witnesses, their occupation and character, their advantages of acquaintance with thesubject of their testimony and their relations to the witness, and when you consider that 86 of them are drawn from a circle of less than three miles containing his residence, in a purely rural district in the interior of the Peninsula, I think you will admit that an impeachment so effective, so conclusive, was never before presented in a court of justice. Gentlemen, you will be on your guard against the false issues raised to weaken the force of this impeachment. Efforts were made in some instances to discredit the witnesses themselves. Allow all that was done in that way, and I think it amounts to the facts, that one of them was indicted and convicted of an assault and battery on a woman I1 years ago; an offence that I do not claim ought to be forgiven without deep penitence: that another was con'victed of an assault and fined $10, within a shorter period; and- that a third one 227 suppressd a fact which he feared would expose him to the hatred of Phelps. You have been told, in the second place, that many witnesses did not recollect nor give the names of those from whom they had derived the character which they assigned. Gentlemen, when a character is bad, notoriously bad, universally bad, it is the exception of favorable speech only that can be remembered. If you declare that a season was wet, you may be able to specify the days of sunshine but not the days of storm. But I think that before the impeachment closed, the prosecution found the authorities given quite sufficient. It is certain that when the whole population of the neighborhood came as one man, and united in confirming the testimony of those who had come before, that the correctness of all was established. It was insisted that the period within which the character of the witness was to be proved, should be limited to two years succeeding Phelps' discharge from prison and anterior to the commencement of this prosecution. But, Gentlemen, you judge of the soundness of a tree by inspecting, not the bark, nor the exterior circles, but the entire trunk. If it be unsound throughout, you wi1.find it hollow at; the heart. The argument that you shall not enquire as to Phelps character before he went to prison, assumes that punishment restored the character,'forfeited by conviction. But this position is manifestly unsound. Again, the Counsel insist that you shall exclude testimony of the character of the witness, arising from discussions which have occurred during this trial. But that isj'ast the period in which; his character has been a subject of discussion. It is true that you must allow for the effect of sympathy with the defendants, in consid-.ering such testimony. Bat these witnesses have no such'sympathy. With one or two exceptions, no one of them is related to any of the defendants. They live at distances of 10 or 12 miles, and more, from them all. For the most part, they never had, nor have they now, an acqaintance with the defendants. The excitement out of which this controversy arose, never disturbed the people of Sylvan nor the people of Washtenaw county. Those who testify, are neighbors of Phelps. The influence of this excitement tended to awakenthe sympathies of Phelps' neighbors in his own behalf, and to rouse them to.anger against the defendants. Again, the prosecution argue reformation of the witness, from thefact, that during the two years, since he came from State's Prison, he is not proved to have committed new crimes. But, you will remember that the form of inquiry prescribed by the court, forbade the defence to ask what was the general character of the witness, and limited us to enquire for his reputation for truth and veracity'only. Nevertheless the recapitulation of reports as to his general character which transpired on the cross-examination is, I trust, sufficient to satisfy them and you on that point. And now Gentlemen, how has this impeachment been answered? 118 persons have been sworn to sustain the general reputation of the witness for truth and veracity. Of these one says on cross-examination that his reputation is mixed, and three that they do not know' 228 where Phelps lives. One that his reputation is divided. One that he does not know even one neighbor of Phelps. One that the majority of neighbors say his character is very bad. One, Samuel Chadwvick, says that he himself took his neighbor's watch clandestinely, carried it to Detroit, and wore it until its loss was advertised and that then he delivered it up and demanded $10, upon the false preAence that he had paid that money to reclaim it from the thief. Six-teen witnesses say that they know nothing of Phelps' reputation since 1842, and that then it was dubious; one that he does not know his reputation where he lives; one that his reputation is bad where he lives, but good elsewhere; one that he does not know Phelps; thirty say either that they do not know his neighbors or do not know his reputation among his neighbors; one that he is not competent to judge; one that some say his character is good and some bad; one who lives thirty miles from Phelps that he obtained his character by inquiries on a commission for that purpose from the Railroad, and three that they do not know his character at all. All the witnesses without exception, declare as the grounds of their testimony when favorable to Phelps' character, not that they have heard it discussed, and then pronounced good, but simply that they have never heard it discussed at all, and all of them who testify to a knowledge of his character in the neighborhood in which he lived, rely upon the fact that they have not heard his neighbors discuss it and yet they refer in that connection to the very neighbors who have already come here and have pronounced his character bad. Of these so called sustaining witnesses, fifteen came from Sylvan, eleven from Sharon, an adjoining town; two from Manchester, distant five miles; twenty from Lima, near where Phelps resided before going to State Prison; five from Fredonia, which I believe adjoins Sylvan; sixteen from Oakland County, where he resided before going to State Prison; two from Chelsea, six miles from where Phelps resides; thirteen from Dexter, fifteen miles from his residence; eight from Ann Arbor, twenty-five miles distant from his residence. You will judge -at once of the extent and accuracy of their knowledge of the subject on,which they testified when I state that eighteen described the distances -at which they resided from Henry Phelps, and that the average of those dietances was eleven and a half miles. The law, gentlemen, re-quires that the reputation, whether good or bad, which is given in evidence, shall be that which the witness sustains in the very neighborhood ~in which he lives, or among those persons with whom he ordinarily transacts business affairs, and that it shall be found by those only who dive in that neighborhood, or who have other good opportunity to learn the character they describe. Thus, while a more successful impeachment was never made, it is quite certain that no impeachment was ever more unsuccessfully resisted. Such is the general character of Henry Phelps the prosecutor, and such his reputation for truth and veracity in the neighborhood in which ie lives. I ask you now to consider the circumstances under which he appears. He testifies under the impulse of an overpowering necessity. A stipend of $40 a month as an informer is his only resource for support, He is under arrest for conspiracy and in instituting this prose 229 cution. His fortune involves two alternatives; one that he carry the prosecution through, and cause these defendants to be sent to the State prison, and thus establish a claim to be restored to that social confidence which he so early lost; the other that he shall be convicted of wilfui and malicious conspiracy against these defendants, with perjury and subornation of perjury and return, after a guilty respite of two years and six months, ta the State prison from whence he came. "He that steeps his safety in true blood, Shall find but bloody safety and untrue." Phelps testifies moreover, under the impulse of a studiously con" cealed but malevolent and persevering revenge against Abel F. Fitch, who was originally the chief mark of this fearful prosecution. I lay aside the testimony of William Dyer on that subject, which was struck ont for want of certainty as to the person to whom the words which he had proved, referred. I cheerfully lay aside the testimony of John Hawley, which he has confessed to be false. The profession which Phelps has led has exposed him to enemies among the associates and confederates whom he has denounced and betrayed. Many such persons have attempted to obtain retaliation through this suit. Some of them imposed John Hawley (who, of course, was unknown) upon the' counsel for the defence. Others who offered themselves were discovered and rejected. Hawley's confession implicated no one of the defendants. He communicated his pretended knowledge to no defendant before he testified, nor did any reason exist for disbelieving the facts he related, or doubting his truthfulness. These supposed facts were in harmony with similar facts abundantly established. He was neither supported nor justified, nor attempted to be screened after the falsehood was made known. We at once moved to strike out his testimony from the case, and resigned him cheerfully to the punishment which he deserved. The counsel for the People felt, or seemed to feel great surprise at his wickrd temerity, but let me tell them and you that in recoiling with so much horror from that silly fool, John Hawley, and in accepting the testimony of Gay, Phelps, and Lake, and in pressing conviction npon it after the exposures which have been made here, they have "strained" at a gnat while they have "swallowed" some very large camels. I am to prove to you the malice of Phelps against Abel F. Fitch. Ulysses T. Foster testifies that in the State Prison in 1849, Phelps, (pointing-to Fitch, who was passing by) said,'he is the means of my being here. I will have revenge or satisfaction." Calvin Beebee says that in April, 1849, when he announced to Phelps that a pardon had been granted to him, he replied, "1 am in'the prison through the influence of Abel F. Fitch and others. If I live to get out I'll make them smart for it, and give them the same feed they have given me." Wm. B. Laycock says that on the night in January last, when Phelps and his wife were sleeping in his bed, he heard her ask him whether he was going to see Fitch the next day, and whether he thought he could do as he talked of doing. Phelps replied he should go and see Fitch and if Wescott would do as he agreed, and stick by him, he thought he would come a good drive. The same witness further testifies that Phelps, in returning from Michigan Centre the next 230 day, after having pretended a desire to purchase Fitch's oxen, said he "would have Fitch in the limbo," and when asked why, assigned the poor reason that Fitch had refused to sell him his twin cattle. Mrs. Phelps contradicts Laycock as to the first of these statements, but what is the value of her testimony? Is her stake in this prosecution less than her husband? What is her independence? I will not trespass upon the charities due to a woman and a wife, by raising a questioll whether she knew the dangerous ways to which he had addicted himself. She had a sick infant in her arms, and may well have forgotten a remark, the full effect of which she did not comprehend. I can excuse her for error if she commits it on the ground of her fidelity to her unfortunate husband. She is not the first woman who has said "I ask not, I care not, if guilt's in that heart, I know that I love thee, whatever thou at." But if you must give full effect to the evidence of Mrs. Phelps, still it leaves the testimony of three witnesses who give proof of profound malice, and are unopposed. Gentlemen, you will next recall the deportment of the witness Phelps during the trial. There is a living and beautiful'harmony in.all truth. He that is truthful to-day, was truthful yesterday, and will be truthful always. Candor, modesty, meekness and gentleness are inseparable from truthfilness. Recall the eagerness of the witness to volunteer testimony injurious to the defendants, by interpolating his answers with matter foreign to the question propounded. I give you only one instance of this. On cross-examination he was asked if he had seen Gay have counterfeit money, he replied, "yes, $50, and he said he got it of Fitch." Recall the scene when he impudently confronted Wmi. Dyer, who was a respectable citizen of Indiana. and roused all the vulgar sympathies around him here in open court, falsely charging that respectable person with being a horse-thief in disguise. Recall the fact of Phelps appearing in the court-room, with his coat defaced by the pretended mark of a ball, wnich he alleged had been fired at him on Woodward avenue, in the streets of Detroit in the night time. What could he have been doing in that quarter of the town at such an hour? Do you believe that these defendants assailed him at that distance from the windows of their prison? Do you believe that sympathizing friends who followed them here attempted his assassination? If so, what has secured him against assassination since that time, now nearly three months? Recall his bar-room denunciations of Amanda Fitch for perjury, and his rude affray with J. B. Toll, her defender. Recall his charge on the stand that Mr. Frink had disguised himself to, procure or instigate his assassination. Recall his impudent intrusion upon y'ou:in your journies to Mich. Centre, when you went to survey the scenes described in the testimony, and to test his own veracity. Recall his still more impudent intrusion upon the presence of one -of the pannel in his visit without his associates, and without the presence of the defendant's counsel to the same places. Recall him as he has sat here among the ten distinguished and highly respectable counsellors for the People, nay, at their very head, advising, if not directing the course of the prosecution at every stage since his own examination was closed. Enough than for Henry Phelps. 231 "Room for the Leper! Room." Few words will suffice for Heman Lake: His part is subordinate. He is only a shadow ofPhelps. His testimony an echo. His history therefore, need not be recited at length. On arriving at manhood, he learned something of engineering, and did nobody knows what, till his depraved proclivities bore him into the State Prison. There he was a friend and enemy of Phelps, by turns. [n the summer of 1849, Lake declined Phvlps' invitation to join him, but in the winter following he accepted his proposition to work at he knew not what, for the R. R. Company, under his direction. He is a "gay Lothario," and having been introduced into Gay's house as a spy for the R. R. Company, he atones for the unkindness of betraying Gay, by taking the vacant place in the bed of his wife immediately after the husband's arrest a place which he retains with touching fidelity, when by Gay's death in prison, that wife becomes a widow. Provided with free tickets for himself and paramour, Lake openly traverses the State with her in the Railroad cars-while your wives and daughters, and all other good citizens with their wives and daughters pay full charges on the great public thoroughfare. Hie is well looking. and his fingers and bosom are adorned with rings and golden charms, token of manifold and meritorious favor- But he is a man of feeble mind and executes only indifferently well the plots of Phelps. In short he is an illustration of the truth that "a pretty fellow is but half a man." He testifies from a diary in which even the facts observed by himself are recorded by his master. These are the three chief witnesses of the prosecution-Gay, Phelps and Lake. It is easily seen, that the plot before us is the work of Phelps alone, conceived and contrived for his own gain and to gratify his own revenge; that the agents of the R. R. Company misled and deceived, have furnished him redundant means and subordinates of his own choice. Gay wile living, ifnot an instrument was a dupe. Lake is manifestly an instrument in his hands. But gentlemen, the malice of Phelps, cannot be understood without knowing the character and circumstances of him who was the object of his revenge. Abel F. Fitch was a native of Connecticut, aged when he appeared before you 43 years. He had a strong mind and considerable education. He came to Michigan in 1837, and with a fortune belonging to himself and wife, which was small in Connecticut, he was a rich man in the oak openings of Michigan. No man, not even one among all that cloud of accusers which gathered around him here, ever charged him with insincerity or falsehood. He whom you saw brought here a felon on the 19th of April, was on the 7th of that month, elected and withouta dissenting ballot, as I have been told, Justice of the Peace and Supervisor of his town. He was gentle, just and humane, the friend and patron of the poor, and their graitude ciowned him with u nequalled popularity. You have seen the house of Henry Phelps in Sylvan, you remember how dark and desolate it was-its low, naked walls, its windows glazed with clapboards, its scanty furniture, its doors closed and suspiciously fastened, its master and mistress abroad all over the State, looking up long lost relations, while a malefactor was pursuing his dangerous vocations-unseen. You remember the 232 half thatched barn that was empty of every thing but refuse hay to conceal unlawful things in the manger. You remember the fuel gathered from the waste timber of the railroad, although the dwelling was almost in the midst of the forest. How truly all this illustrates the darkness of the spirit that inhabited there. You have seen also the dwelling of Abel F. Fitch, of Michigan Centre, shaded with trees planted with his own hands. It is neat, spacious and elegant. You remember the prairie rose clustering over its piazzas and verandahs.Though the owner of the mansion was childless, yet its chambers ring with the merry voices of children. Books, pictures and musical instruments meet you on every side. The garden exhibits the flowers of every month from early spring till the returning frosts. Ample orchards yielding the choicest fruits; a park filled with deer, and a lake in which the wild birds forget their native home, increase the attractions of the domain. That domain extends over five hundren acres,, and when you saw it, was covered with wheat ready for the harvest, and cattle which proved not only the care but the enlightened taste and public spirit of a country gentleman. Was this the home of an incendiary, a conspirator, a felon? Were not these felicities of fortune enough to excite the malice of an enemy to the exaltation of revenge? Of the other defendants it is enough to say that one, Smith, resides in Detroit, and was unknown to the defendants living in the country, and entirely unconnected with them. The defendant Gunn, who recently died, was equally unknown to them. The others consist of Mr. Burnett of Grass Lake, a gentleman of respectable position as a surveyor and scrivener; Mr. Lemm of Jackson, who occupies himself, I believe without reproach, in Justice's Courts, preparing himself for the profession of the Law; Dr. Farnham, a dentist of the same place; Mr. Gleason, who held a humble office in the State Prison; Mr. Warner of Jackson,who,I believe, has been a runner for hotels there,and some who are obscure farmers, mechanics and laboring men, living in the town of Leoni. Among this large number, 2 or 3 only are said to be habitually addicted to intemperance, and all the others are sober and industrious citizens. Some few of them have no moral standing, many others have lived blameless lives, and not a few hold a fair standing in the various Religious Societies, established in the central part of your state. Their only crime against Henry Phelps was, that they were the friends of Abel F. Fttch. How could they have been otherwise? Having shown you that the evidence given you by the informers is not corroborated by external circumstances, and is rendered unworthy of credit by the character of the, witnesses, and by the malice which they bear against the defendantsI proceed to show that it is rendered still more unworthy of that credit, by internal evidences of falsehood. 1. We are required to believe, that Abel F. Fitch and the other defendants who reside in Jackson County, seventy miles from Detroit, employed a notorious and profligate keeper of a brothel in this city, to burn the depot here for a compensation of one hundred and fifty dollars,and furnished him with an instrument for that purpose,made by 233 themselves. Yet, excluding the testimony, consisting of admissions, reported by these informers, there is no evidence that any one of these defendants ever saw or ever heard of George W. Gay, and even the informers do not presume to bring home to more than two of the defendants a knowledge of that person, and they give no evidence of that acquaintance, except admission easily fabricated. Phelps reports Fitch as saying to him in Detroit in February, that he had seen and conversed with Gay during his visit there, and Lake reports Mount as saying that he had known Gay from his childhood. Such an acquaintance could in either case have been' pi oved by witnesses as a distinct fact, if it had existed. The want of such proof stamps the statements with falsehood. Fitch was at least a man of worldly prudence. IIe had fortune to save, fame to maintain, and personal liberty to preserve. If he had meditated and contrived, so great a crime, would he have employed as an agent a person, whose house was not only a place of public resort, but under the constant surveillance of the City police? If he had meditated such a crime, would he have chaffered about among poor and obscure farmers and laboring men, and have demanded contributions from them, and have made payment for himself by turning out cattle for his share of the fund? The informers require us to believe that at least the following sums were provided for by subscriptions, to wit: For the burning the Depot in November $150 do do new Depot at Detroit, in April 200 do do Depot at Niles 200 do do Depot at Marshall 200 do do Depot at Jackson 200 Total $950 a sum greatly exceeding the ability of the alleged contributors. Such a sum could not have been raised by Fitch and his supposed associates, without the use of bonds, with mortgages on personal and real estate, notes with endorsements and the operation of discount, which would have left traces that would have betrayed the transaction in Leoni,and in other towns and cities, where the loan or discount should have been effected. Sir! (to Mr. Wright,a Juror) you are said to be rich. I am glad of it. You could not, to-day, pay me five hundred dollars,without the use of a check, or note, or bill that would draw in two, three or more witnesses of the transaction. Again, we are required to believe that Abel F. Fitch, having a pair of fancy cattle that had been, or were notoriously preparing to be exhibited at the State Fair, and were even known throughout the State, authorized two incendiaries to take and drive them away immediately on returning from Niles,after having burned the Railroad Depot there; and this too when the felons were to proceed to Niles, and return from that place openly in the cars of the Rail Road Company, whose Depot was to be destroyed, and when every agent and servant of the Railroad was known to be acting as a spy upon his conduct by Fitch himself. The statements of Gay, which are reported, are contradictory.. In December he knew the man, who employed him to burn the De 234 pot, only by sight. In February he still knew the man only by sight. In April, although notoriously he had not seen Fitch, nor aly others of the defendants, yet he named not only Fitch, but also Mount and Williams, with others of his friends at Leoni, who had hired him to burn the depot in December. Who does not see that George Washington. (}ay would never have burned a Depot or made a contract, without knowing his employer? Who does not see that Abel F. Fitch, could no more have remained unknown in making such a contract, than you and I? Again, Gay when appealed to by Phelps in April, to tell Van Arman who it was that had in fact burned the depot, replied "Do you think I am such a d- d fool as to put myself in the power of any man?" Nevertheless, Mr. Van Arman, who testified to this in May, reappears in Court in June, and remembers the fact that Gay not only mentioned in April, that he burned the Depot, but referred to Mount and Fitch as his employers. Again, Gentlemen, if Gay was employed by Fitch to burn the Depot in November, and received the match from him before the fire, and the money, one hundred and fifty dollars, immediately afterwards, these transactions must have occurred somewhere. There must have been a meeting between him and Fitch at some time, and in some place, either in Detroit, in Jackson County, or somewhere else. Such a meeting could have been proved, if it had ever taken place. When Gay and Fitch gave Phelps their unreserved confidence and stated these transactions freely, why did not one or both of them state where and when that meeting occurred? Fitch was widely knowNi and if we are to believe the evidence, was vehemently suspected. Gay was equally notorious and infamous. The absence of Fitch from home, to attend such a meeting, if not his presence in Detroit, could have been proved. There must have been travel by either Fitch and Gay, or by one of them, on the Rail Road. Spies were all summer long waylaying every step of Fitch. The police were always on the heels of Gay. Or there must have been travel by one or both of them on foot, or in some carriage upon a common road. Such a mode of travel would have increased the time spent,and would have in itself been suspicious, and, of course, would thus have directly increased the chances of exposure. Soit appears, that Fitch never came to Detroit; nor was Gay at Michigan Centre; nor did one ever leave his home, to meet the other elsewhere. Was the negotiation conducted by correspondence? Then it must have been by Post, or by Private messengers. The Post keeps records of letters, although not of their contents.Messengers'ould not pass unobserved. The homes of Fitch and Gay have rendered up all their secrets to the police, three times over. No such correspondence has been found. We are moreover warned against crediting the narrative, in the very outset of the case. Phelps says, that in his first interview with Gay, he applied to him to know how he could clear Van Sickle; and Gay replied,we can do it by aplot, and predicate it on the burning of a depot. Phelps himself suggested that, instead of burning a depot in fact, the plot should be predicated upon the conflagration which had already happened. That suggestion proceeded on the ground, that, although the conflagration had happened by casuality, yet it could be proved by subordination, and that 235 it had been done by an incendiary, and the suborned witnesses were to prove that fact by fabricated admissions. What are all the pretended admissions of Gay and Fitch now produced here, but the fabrications, thus early foreshadowed? Nevertheless, Gentlemen, Gay's declarations are not evidence. He is not a defendant. He is not on trial. If living, he would be a competent witness to prove the facts if he could be a witness at all. But'he could not be a witness if living, because being the principal, he would not be competent before conviction to a charge the crime against accessories. Since he is dead, his declarations while living can no more be received than could his oath While living. If you proceed upon the ground of a conspiracy, his recitals of what was past and ended are-not competent testimony; It is only declarations, promises and threats, constituting a part of the felonious transactions themselves and uttered in furtherance of them, that can be received as evidence.(Roscce, 323.) I challenge the Counsel for the prosecution to show now where in all this voluminous mass of testimony is found one word of proof that any one of the allegations of Gay was ever brought to the knowledge of any one of the defendants and confirmed by him, or was ever brought to his knowledge at all. Take the names of the defendants. Have those allegations been brought home to Benjamin P. F. Gleason? No! To DanielMyers? No! To John Palmer? No! To Lester Penfield? No! To Farnham or to Barrett? No! To Grant or to Lacock? No! To Willard Champlin? No! To ErastusChamplin? No! ToE. Price? No! ToAbelF. Fitch? No! To Aaron Mount? No! To William Champlin? No! To Richard Price? No! To Ami Filley? No! To Andrew J. Freeland? No! To William Gunn, or any other defendant? No! The testimony of Gay's allegations came in then unadvisedly. It has done its work. It has poisoned the public mind against the defendants. You are more than human if you have not been affected by it. But it is time to discharge this testimony from the case. I suppose the promise on which it was admitted was made in good faith. To retain the evidence since that promise has been broken, would be a fraud. I demand of the Court that the testimony be struck out from the record, and conjure you that it be disregarded altogether. I pass to the'supposed admissions of the defendant Smith as reported by Phelps and Lake. These, like those imputed to Gay, are discredited by internal evidence of falsehood. Phelps says "Erastus Smith was present when Gay said he received $150 for burning the depot, and that he knew the man by sight who paid it; that it was raised by a company of men; and Smith afterwards intimated that he received a part of the money." Again, Smith said" that tle depot was burned under an arrangement with Gay," of which he was cognisant, and also that Gay told him who paid him the $150." Not only is there no evidence that Fitch ever saw or heard of such a person as Smith, but the admissions themselves shows that he who procured them knew that there was no acquaintance between them. These admissions, moreover, have all the vagueness and generality of a technical pleading. An " arrangement" "cognisance"-such are the words not of a man giving an account of a past transaction from actual 236 knowledge,-but of a lawyer framing general interrogatories, or preparing evasive and deceptive answers. Again, Phelps reports Smith as saying in February at the Pantheon, that Fitch had left matters for disposing of certain witnesses (Lacock and Wells,) with him, and had agreed with Gay to burn the new depot. That he, Smith, had agreed to assist Gay, that Gay had given him part of the money," that Smith had told him that "Fitch had applied to him to burn the new depot;" Phelps and Lake both testify that " Smith was at the Pantheon in February; talked with Phelps about burning the depot at Niles, and wanted to know if the trial of Corwin and Price for burning the wood was to be put over beyond the March term because that would give them more time. I separate these alleged confessions of Smith from other evidence of the same class, and leaving Smith's Counsel to answer for him so far as they relate to himself: I remark upon them only in relation to the defendants. If Phelps enjoyed the unlimited confidence of Fitch during his visit here in February, and if Fitch had one or more interviews with Smith, then why could not those interviews be proved. Fitch was at Johnson's hotel, and Smith at the Pantheon near by. No private interviews could be held in places so public. Phelps having the confidence of both, and desiring to circumvent both, could have bro't them together without being suspected by either. Again, Gentlemen, the allegations of Smith, like those of Gay, are to be rejected because they are of the past, and not a part of the transactions which they described. The learned District Attorney, however, has relieved me from the necessity of discussing further the alleged confessions of Smith. That gentleman advises and solicits you to acquit Smith. The evidence against Smith consists of the admissions which I have cited, and those admissions are proved by the same Phelps and Lake who prove admissions against the other defendants; nay, Smith's admissions are a part of the evidence against the other defendants. On what ground, then, does the District Attorney advise the acquittal of Smith? Certainly, not on the ground that Smith's admitted agency in the crime of burning the depot was trivial or harmless. On the contrary, he was in the city and admits that he aided and abetted Gay in the very act. He alone, then, of all the defendants, ought to be convicted under the first count in the indictment as a principal in the crime; nor does the District Attorney ask the acquittal of Mr. Smith on the ground that the evidence given against him by Phelps and Lake is false. On the contrary, if the evidence of those witnesses against Smith is false, then their evidence against the other defendants is false. But the District Attorney declares that he advises the acquittal of Smith on the ground that Smith's admissions as proved by Phelps and Lake are false. The District Attorney pleads for him, that under the seduction of Phelps he confessed participation in a crime of which he had no knowledge. Were then his allegations against Fitch true, whilst his admissions against himself were false? No; the whole, of course, were false. When I heard the District Attorney submit this extraordinary proposition, I thanked God and took courage. It revealed the secret of this entire prosecution. It show 237 ed that Smith had been fraudulently made a defendant that he might utter, without oath, false allegations to convict the defendants at Michigan Centre, under an assurance that he should be acquitted himself. And now, Gentlemen, since Smith's allegations are admitted to be false, are Gay's averments made under the same circumstances true? Smith was, indeed, degraded and debased. If Smith was seduced so easily by Phelps, Gay had even less virtue to resist his seduction. I declare, gentlemen, my profound conviction that the whole prosecution was conceived in fraud; that George W. Gay never burned the depot; that he and Smith falsely accused themselves of that crime under a promise of Phelps to share in the reward of a conviction of the defendants in Leoni; and that Gay, if he had lived to go through a trial and conviction, would have been recommended for a pardon, and would have shared that reward. No, no, Mr. District Attorney! No, no, most learned Counsel of Ten, that game cannot be played out. I do not say, nor believe, that the defendant Smith is guilty under his indictment, but I do say that if any are guilty he is the guiltiest of all. If any one here shall be convicted, he must be convicted first and surest of all. More than this I say that-if there is honesty in Michigan, he will be the last of all the offenders to be pardoned. Phelps and Lake, either jointly or severally, charge the following defendants with admissions of some agency in procuring Gay to burn the depot, viz.: Abel F. Fitch, Ami Filley, Wm. Corwin, Daniel Myres, Ebenezer Farnham, Minor T. Lacock, Wm. Champ-!in, Eben J. Price, Aaron Mount, Andrew J. Freeland, O. D. Williams, and John Ackerson. Only two are alleged to have admitted any personal acquaintance with Gay. All were seventy miles from Detroit when the depot was burned, and could have had no actual knowledge of the manner in which it was burned. Even if they had contributed to hire Gay to commit that crime there must have been some doubt in their minds whether the fire was not a casual one. Nevertheless, they are all charged with admissions made with as much certainty and confidence as if they had been eye-witnesses and had actually participated in the transaction. But, gentlemen, what motive had Abel F. Fitch to engage in such a crime? It is to the credit of his generous nature that all of these foul and infamous accusers suggest a motive, not of avarice, nor of revenge, nor even of retaliation, but of sympathy. Thus Phelps states that "Fitch said, at his barn, in January last, that I was well aware as he that the railroad was a curse to the community, that a number had leagued together to right the wrongs of the people; and that he wished to carry the plan further; and would continue until they brought the company to terms." Sympathy, then, with neighbors, who had lost' a few cattle, was the motive of a man worth ten thousand dollars and more, for a proposition to burn the depot at a cost of one thousand dollars, at the hazard of his own safety and fortune, and the safety and fortunes of the neighbors whose cause he had espoused. Sympathy with a few obscure men a motive for illuminating the State with a balefill conflagration of all the most useful structures upon its greatest highway! 238 And, what was the inducement of Ami Filley? If all the testimony in the case be not false, he was indeed hostile to the railroad company, and was a mischievous man. But he was a man of feeble mind and purile conduct, a mere procurer for other men's pleasures. He kept his boat on the lake, and his nets in his fields to supply your tables with fishes and birds. He kept balls in his nine-pin alleys,. and liquors in his bar, for the recreation and refreshment of visitors. He was never in Detroit nor in Niles, so far as we know, and his enterprise in mischief reachad no farther nor higher than committing annoyances in his own neighborhood. When or where did he ever learn that such a wretch as Gay existed in this capital or elsewhere? As soon would you see a constable leading a revolution, as this bird catcher, of Leoni, organizing such a conspiracy as this. Corwin's migrations were from Cuykendall's tavern, in Leoni, to Morrison's grocery, in Jackson-a distance of about eight miles. When, where, or how came he to a knowledge of the haunts of crime in this metropolis? Daniel Myers. Stand up. There, gentlemen, you see a humble tailor, who follows his shears in an annual orbit of two miles in diameter, encircling the village of Leoni —as ignorant of Detroit, its corruptions, and its crimes, as you are of the painful frugality by which he lives. Beyond him you see Ebenezer Farnham, a country dentist, an early settler in the Genesee country, who has brought the early settler's habits of occasional intemperance into Michigan. He is crazed when in his cups, and his drunken vagaries are brought here by informers, who seduced him into intoxication. Harmless when in that condition, he is gentle and benevolent when in the possession of his senses. There, gentlemen, is Minor T. Laycock, a country lad of scarce 21, whose simple, good nature leads him into the sympathies and griefs of his neighbors, and whose principles of fidelity and truthfulness, quite too rare even among us, restrain him from saving himself by becoming a mercenary accuser. Eben J. Price and, if you will, Richard, his brother, are two boys led by occasional intemperance to join in the disorders of a country bar-room. Andrew J. Freeland is an industrious, hard working farmer, loquacious and perhaps zealous, in the controversies around him, but harmless in; action as he is free in speech. Orlando D. Williams is a stone mason, civil and quiet, of good behavior when sober, but, like Farnham, falls sometimes into intoxication, and then a braggart and a fool, whose very extravagance assures that he is harmless. John Ackerson and Aaron Mount are two very poor farmers, neither of whom has committed an act or spoken a word in the midst of all the excitement by which they have been surrounded. But they were witnesses against Phelps, on his trial for horse stealing, and'so they must be made to "feed on the fare" which they presented to him. Behold here, then, the conspirators who it is alleged " made up a purse and furnished a machine to the keeper of a city brothel, to burn the depot in the commercial capital, at the hazard of the conflagration of the whole city." Among them all, are only two of whom it is pretended that they had ever suffered an injury from the 239 railroad company.".Accept the testimony of Phelps and Lake, and you have evidence, not that both of them said that they had seen George W. Gay, but that they confessedthey had(!). Reject their testimony and no one of these defendants is proved to have ever heard of Gay, nor even to have seen the city in which he is supposed to have kindled that baleful conflagration. Only one of them was ever convicted of a crime. Gentlemen, if you would secure your dwellings, your store houses, and your public edifices, if you would live in safety and in peace, extirpate the crime that arises within your own walls. Raze to the ground the haunts in which it is born, and schooled and trained, at least watch them well and closely. My word for it, your town and every dwelling and every edifice in it, will stand and endure forever, if they wait till the torch is applied to them by the farmers, mechanics or even by the felons of the rural population, by whom you are surrounded, supported and maintained. Mark now, gentlemen, the candor of the accusers and the simplicity of these alleged conspirators. Phelps, speaking of his pretended interview with Fitch at his barn says: "I think (yes I think are the words) there was allusion made to the burning of the depot at Detroit. He said it had been burnt and could be again." How frank and generous was it in Fitch to repose such confidence in a man whom he had caused, five years before, to be consigned to the State Prison! How probable it is, too, that a country gentleman, having five railroad depots to burn, would organize a joint stock company of forty share-holders with a capital of $950, to execute the enterprise i How very probable that such a person would appoint a meeting of the incendiary with the stockholders, on the occasion of a public shooting match at a ball alley on Christmas! How natural it was in that same country gentleman to show his machine for burning the depots to the incendiary, who had not yet accepted his proposition, and was cheapening the twin oxen which were to be received by him in payment. When that same country gentleman met the incendiary, by appointment, in Detroit, to consult upon the enterprise of burning the new depot in that city, how admirably he selected the place for consultation-the trunk table in the car house, among the newly arrived passengers, the conductors and baggage men,laborers and spies of the corporation whose depot was to be destroyed. How kind it was on the part of Fitch instead of sending Phelps to Gay's house on a rainy day in February, to consult about the crime, to appoint the interview between them, just around the corner at Savinac's saloon, on the most public wharf in the city. It never occurred to Fitch that although he might hire five depots to be burned for a thousand dollars, that he would thereby pledge this whole estate and all future acquisitions in security against betrayal by his accomplices. But it is replied that Fitch supposed he had control of the police authorities of Jackson couuty, and a sure reliance on the affections of its whole people. What security could all these afford against indictments which must be presented, not in Jackson county alone, but in Wayne, Calhoun, and Berrien coun 240 ties. The learned counsel reply that Fitch was prepared to make away with the witnesses against him. Is there any man so simple as not to know that assassination of many witnesses is not the surest way of securing the verdict of a jury? But Phelps replies that Fitch promised him to procure a change of venue. Ah! there I detect the lawyer in his fraud. Phelps was familiar with those terms; Fitch ignorant of courts, probably never heard of a change of venue in all his life. Again, how nicely the tone and spirit of Fitch's reported conversations are in keeping with his known character and disposition. " We are preparing to give Detroit another touch. They are building another depot and I design to burn it as soon as it is up; I don't care, a damn who it kills if it be the Governor of the State." " It will give the State a luminous appearance to light it up at both ends." "If detected you had better dig your graves before you go." Consider now how happily Fitch chose the place for the final departure of the incendiaries to Niles! Not his own barn, not one of the many private chambers in his own house; but the open, public bar-room in a tavern! Consider, too, the occasion and the circumstances; a drunken revel in the presence of two well known neighbors not accomplices, and a traveler who, like himself, refrained from the cup and read the newspapers. Mark, too, the caution and economy manifested in the direction for the use of the match-"you will have to get camphene out there." Yes, to get the camphene to burn the depot at Niles, in the town of Niles! I ask you next, Gentlemen, to examine the alleged admissions in detail. They are all coin of the same die, whether related by Phelps or Lake. Phelps —' Fitch said it cost him a cow and $25 to burn the old depot." Lake-" Fitch said he had paid $50 to a man to burn the new depot, and was to pay $50 more when it was burned." Phelps-" Corwin told me his contribution towards burning the old depot was $12. Lake-" Filley said he had paid $30 of the $150 for burning the old depot." Phelps-" Erastus Champlin said a purse had been raised to pay for the burning of the depot last fall." Lake-" Fitch said Lacock knew that a purse of $150 had been raised for burning the depot last fall, but did not know to whom it was paid." Phelps-" Fitch said if I succeeded in burning the depot at Niles, I might take the oxen and the balance of the money when I came back." Lake —"O. D. Williams said his share of the fund was $17, and afterwards said it was $20." Phelps-" Freeland said he had paid $14 to Fitch, his share for burning the depot last fall." Lake —" Aaron Mount said he had known Gay from a child; we raised a purse and sent it down to him to burn the depot at Detroit, and he burned it so quick we hardly knew it." Lake —' Freeland said he had paid his share to Pitch towards burning the depot, and Fitch had paid it over to a mann in Detroit." Phelps-" E. Champlin said a purse had been raised to burn the'depot at Detroit again." Lake-" Williams said at Leoni that the best thing they did was the burning of the depot at:Detroit; but thqy got no credit for it." Phelps-" Myers said on the way to Michigan Centre that the burning of the depot at Detroit was done so nicely that they did not suspect any thing, and therefore we got no credit for it." Lake-" Farnham said it was done so slick that they got no credit for it, and were never suspected." Phelps-" Fitch said the Railroad Company was not able to discover the cause of the fire; they were not smart enough; and if they would pay enough, he would show them before their eyes how to do it Phelps —" Willard Champlin said he would like to have been where he could have seen the depot burn, and seen Brooks in it." Phelps-" Dr. Farnham said we got an old fellow to burn the depot at Detroit, last fall, but it did not seem to make much impression." Lake —" Corwin said, we burned the depot at Detroit very slick, and that was the only, one they had paid for burning." Phelps-" Fitch said a witness might go before the Grand Jury, but he would not live to go before the Petit Jury. Corwin said a witness might go before the Grand Jury, but he would not live to go before a Petit Jury. Filley said ditto to Mr. Corwin, Price said ditto to Mr. Filley." Phelps-" Smith (in speaking of the old depot) said Gay received $150, and intimated that he received a part of the money in advance," Phelps-" Smith (in speaking of the new depot) said, at the Palo Alto saloon, that $150 had been paid to Gay, and that he received part in advance." "W iliiams told me if he was detected he would kill the witnesses or swear them to hell." "i1 have heard Corwin, Filley, the Prices and Fitch threaten Lake to kill him or swear him to hell." Phelps says, " I received sixty dollars in advance for burning the depot at Niles, but don't remember from whom I received it." "0. D. Williams told me that a man at Detroit burned the depot, and that he was paid sixty dollars in advance." "Corwin, at Bascom's, said, that if they could burn the depots, both at Detroit and Niles, at the same time, the Railway Company would pay up."' "Wm. Gunn, said at Marshall, that if the Detroit depot should be burned up again, and Phelps should burn the Niles depot, and he, (Gunn,) should burn the Marshall depot, he thought the Company would begin to pay up." "Fitch said if we could get a fire into the depots at Niles and Detroit at the same time, they would begin to think Miller's doctrine true." " Dr. Farnham said if we could blow up the track a few times, the Company would be willing to buy us off and pay any sum asked.'" "0. D. Williams said he should write to the Company and tell them if they would give a thousanddollars a year forfive years they should have no more trouble." 16* 242 Lake —" Corwin said they meant to propose to the Company to pay one thousand dollars a year for fve years." Phelps- " Myers said if I was successful in burning the depot at Niles, we would be able to draw a large sum of moneyfyrom the Company." Lake -"'Dr. Farnham said if they could make a clean sweep of the depot at Detroit, he guessed they would wake up. " Fitch said they would make a clean sweep at Detroit and Niles." " Corwin said they would make a clean sweep at Detroit and Niles." Williams said they would make a clean sweep at Detroit and Niles." Mount said-(the same.) Filley said-(the same.). Enough of this. There is an identity in the admissions as harmonious as in the ritual of a Free MIason's Lodge, or in the Liturgy of the Episcopal Church. Gentlemen, Dramatists, and Novelists, in the early period of our imodern literature, relieved the wearisomeness of their pictures, by interludes and subordinate tales, which had a pleasing similarity, in spirit at least, to the principal plot of the work. The narrative here is relieved in the same way, with humbler plots and conspiracies, as follows: (1.)' Phelps says "he proposed a conspiracy with Gay, which was to burn the depot at Detroit, and lay it to Boyce, because he stole from thieves." (2.) Phelps says "he suggested two plans to get rid of Sherman, Laycock and Wells: one was to burn the depot at Detroit, and lay it to them. (a.) Phelps says Wim. Gunn told him he should get Sherman into the black hole'; and if he could not get Sherman laid out, he should burn one of the depots." (4.) Gay told Phelps "he knew a first rate man and his wife whom he could get to swear that Boyce said before the depot was burned, "he was going to burn it," and to swear that after it was burned Boyce said he had burned it." (5.) Williams said "you know I was the cause of having the cars thrown off at Leoni, although I was in bed. We can swear Laycock did it." Corwin said "he would testify that Laycock came to him and wanted him to help do it," Williams said " he would swear that Corwin afterwards confessed that he did it." And Freeland said "he would swear both that Corwin said before the offence that he was going to do it, and that he confessed it afterwards." Phelps says.that "' Fitch, at Detroit, suggested" a second plan to get rid of the boys," which was b-y placing counterJeit money zupon their persons." Phelps says that " Corwin, about the same time, at Michigan Centre, suggested" the same ingenious device. How delicately these pictures are worked upon the tapestry; and how delightfully they harmonize with the grand design, of fabricating matches in the log cabin at Sylvan, and carrying one in a red handkerchief and depositing it in Filley's tavern, and carrying the' other in some other way and depositing it under the side-walk in front of Gay's house, in Detroit, and then swearing' that the defen tints.delivered to them the one left at Filley's, and that Fitch and Gay admitted that the other was manufactured and delivered for a similar purpose. But I weary you. There are many more such admissions. "The trail of the serpent is over them all." Let us now see whether the narrative of the witnesses harmonizes in all its parts. Phelps says "that Fitch's object in visiting Detroit, on the 11th of February last, was to get Wells, Laycock and Caswell out of the way; that Fitch proposed two alternatives for that purpose, and Phelps offered to execute either. One was to burn the new depot and lay it to " the boys," and the other was to put counterfeit money on their persons and thus cause them to be sent to prison." Phelps, when asked why he left Detroit without having executed either alternative, answered that Fitch told him that Gay had agreed with him to burn the new depot. Thus, then, Gay was to burn the new depot, and lay the crime to" the boys." But Phelps had before told us that Fitch remained in Detroit to get rid of " the boys," by enticing them away, or getting them secure in some wayg: from which it must be inferred that the burning of the new depot was not to be laid to "the boys." Indeed, Phelps says that Fitch told him he had a woman staying at Gay's to put money in s" the boy's" pockets; and that Joe Dows was to place pencil cases filled with counterfeit money upon their persons and decoy them to Canada. Thus, the crimes contemplated in both alternatives, were to be executed to get rid oJ " the boys;" who, after all, were. not to be got rid of by means of these crimes, but were to be enticed away and persuaded to silence. Again, Gentlemen, Phelps says that "when a match was shown to him at Michigan Centre, in January, he told Fitch and Filley he had seen such a one at Gay's." Nevertheless Gay never showed Phelps a match until after the 24th of February. Again, if Fitch delivered to Gay two matches, while in Detroit in February, why did not Fitch show them to Phelps before delivery, and why did not Gay show them to Phelps after receiving them? Phelps claims that he then enjoyed the unreserved confidence of both, and he says that Fitch had arranged an interview between himself and Gay. Again, Phelps says, that "not until February 13th, did he ever hear Fitch mention the name of Gay.' IHow did it happen then that Fitch expressed no surprise in January, when Phelps told him he had seen such a match at Gay's house. Again, Phelps says that Fitch, at Detroit,. said he wanted Phelps to go to Niles, and light up there, and the time appointed was Mardh 4th when Corwin and Price were to be tried at Jackson for burning the railroad wood pile. Phelps says that it was afterwards arranged that the trial of Corwin and Price was to be put over to a future term of the court, and that the burning of the depot was to be postponed accordingly. Nevertheless Phelps says, that on the 4th of March, Corwin complained of Phelps' delay in burning the depot at Niles, and Phelps innocently explains to us that he had been delaying it for Clark, the Railroad Agent to come home from Lansing. In the sequel the " boys" 244 Laycock, Wells, and Caswell, are quite forgotten Corwin and Rice, altogether forgotten; Gay altogether forgotten; the new depot at Detroit is altogether forgotten, and on the 13th of April the depot at Niles is fired without an object or purpose. Look now, gentlemen, at the boldness with which disingenousness and falsehood are confessed, avowed, and justified by Phelps. He says "I don't know what I told Filley at the ball alley I would do with the oxen, probably I invented something for the occasion." "What I told Corwin about passing counterfeit money was false, Lake and 1 concerted it together," "At Detroit I offered to take' the proposition, either to burn the depot, or to put money in the pockets of the boys, and betray them in Canada. This was to make Fitch believe I was helping him." " I told Price at the ball alley, I could get witnesses from the neighborhood to impeach Sherman.' I told him this on purpose to deceive him."' I may have told defendants Lemn was a d —d mean man. I pretended to Fitch that I went to Lansing to get relief from unjust imprisonment." The first time I was in Lansing I got a northern member to introduce a bill; my real object there was to see Darius Clark. I got several copies of the report containing the application, and sent them to Michigan Centre. On my return from Lansing I saw Corwin, and Farnham, and told them I was going to collect money in Detroit for a man in Massachusetts." In the interview with Wm. B. Laycock, in January, I told him I wanted to buy Fitch's oxen, and that I could sell them for $140. Isaid this to deceive Lay cock." Fitch asked me on the night of April 11th, about my claim on the State. I told him I could get about $3,209." Hudson says Phelps said oln the 11th of April that he had a friend in Minnesota, who had graduated with him, and he was going there next week. Phelps says, " I remember telling Fitch that the Gov. of Minnesota had written to me about coming out there. My object was to get my money when I got back from Niles. Gentlemen, I will present no more of these shameless and boastful confessions of falsehood. Permit me, however, to ask, 1. Do you doubt now the correctness of the one hundred and twenty-one witnesses who impeach Phelps' reputation for truth and veracity. 2. Can you tell me by what rule you can distinguish what part of Phelps' statements you are to receive as true, and what part to reject as false v 3. We can well enough dispense with Win. Dyer's testimony, that Phelps told him " it would be right to put down the Company in Jackson and Washtenaw counties, by false swearing, if it could not be done without." Phelps virtually admitted that he had said so for he stated that under some circumstances he might have made that remark, although he denied any recollection of the person to whom the remark was made. It is my duty in the next place to show that the narrative of Phelps is in many essential points, absolutely contradicted. I. Phelpssays he saw Fitch in Jackson the day before Christmas. 245 and he thinks that it was Monday; that he then agreed to go next day, and did go next day, to Michigan Centre, to see the boys, and it was Christmas. It is shown by A. H. Delamater, John Delamater Amanda Fitch, and Harry Holcomb, that Fitch was not at Jackson on the day thus designated. 2. Phelps says that Fitch's visit at Detroit, on February 13th, was concerted by appointment between him and Phelps,He requires us also to believe that he was expected by Fitch at Detroit. The facts are that Fitch went to Detroit under an engagement with Victory Collier, and was waiting there for Israel R. Brown. Phelps' statements that Fitch conversed with him half an hour on the trunk table in the depot, is contradicted by Delos J. Holden, who having arrived on that occasion with Phelps went to Johnson's hotel immediately, and found Fitch, and staid with him at that place. Mr. Shealy, who was called to support Phelps' account of his interview with Fitch in the street, on the occasion when Fitch directed hi.) where to find Gay, deprives that circumstance of all sinister effect. You remember that Phelps says that Fitch asked him if he had got his fish, and he answered " no;" that Fitch replied he would find some round the corner, pointing towards Savinack's grocery; and Phelps says that on going there he found Gay. But according to Shealy, the dialogue was thus: (Fitch) "have you not gone home yet?" (Phelps) "No, I have not got my fish yet." (Fitch) "You will find some round the corner." G. W. Brown testifies that he put the same question to Fitch, received the same answer, and obtained fish at the place designated. Phelps admits that he did inform Fiteh, in Detroit, that he wanted to procure fish and other provisions for supplies on a job of grading the Railroad. The remnant of a barrel of fish was found on Phelp's premises, on his departure from Sylvan. Thus much for a trivial circumstance, light as air, which suspicion and fraud have magnified into " confirmation strong as proof from holy writ." You have already the fact that Willard Champlin Was absent from Grandison Filley's when Phelps charges him. with an admission implying guilty knowledge of the burning the depot. I have recited Phelps' narrative of a plot contrived by Williams, E. X. Price, Freeland and Corwin. Phelps ffxes the scene and the time at Cuykendall's on the day when Freeland and Corwin changed horses; and says that the. wicked consultation was broken up by Naithan High, who came up and asked what the privacy was. Nathan High says that he broke up such a conversation neither then nor at any other time. Benjamin Stid proves that Phelps was not at Coykenda1s on that occasion. Phelps relates a conversation on the first Tuesday in March, between himself, Fitch, and Lake, cincerning a proposed branch road from Jackson to Adrian; and alleges that Fitch said that "the Michigan Central Railroad would be worth nothing;" that they "would keep tearing up the track, and so keep the travel off from it." Lake recites the conversation, omitting altogether the essential part about the Michigan Central Railroad.'Phelps' numerous statements of admissions, by Fitch, of having or making counterfeit money, are manifestly false. 246 It may well be doubted whether any man in easy circumstances ever engaged in that despicable manufacture, or traffic. The police have searched every part of Fitch's house and premises in vain although his arrest was sudden and unforeseen. Phelps says that, in January last on the occasion when he went to Michigan Centre with William P. Lacock, he found Fitch with Filley and Ackerson in the ball alley, and that there Fitch discussed with him the plan to prosecute Laycock and said it was a good plan if stuck to and said the rule among them was, if a man turned traitor, to shoot him on the stand, but that Miner was a weak kind of a boy and the state prison would do for him; that they then spoke of burning the depot at Niles. Fitch said he "should charge $160 for the twin oxen and would pay the balance, $40, in money; that it cost him a cow and $25 for burning the old depot; that the match to be furnished had never failed and it never would; there was no danger of failure. It was in that conversation also that Phelps represents Fitch as sayingthat they had prepared the match there and sent it to a man in the city and paid him $150 for burning the depot; that it was constructed so as to burn a given time and he gave instructions about it; that it had been used at Detroit as directed, and that, when it burst out, it spread so rapidly that all the water of the river could never extinguish it. He represents Fitch as saying on that occasion, still further that they had injured ihe Company half a million during the first year, and would double that sum in the ensuing year; that they were going to burn the new depot as soon as it was finished; that they had warned the people not to ride over the road, and, as they knew better, he didn't care a damn who was killed if it was the Governor of the State; that in case he should get into difficulty in burning the Niles depot he would bail Phelps out, and change the venue to Jackson where he could get witnesses to swear him out; that he could get a host of witnesses to put down a traitor or to screen a friend, and named themp; that he could impeach the best man in Jackson County and get the best man in Jackson County to assist him in guilt." Now mark, that he says he first saw Fitch in the ball-alley and that all this conversation was held there. Wm. B. Laycock, who, according to Phelp's own account attended him, says he never was at Michigan Centre but that one time, and that on this occasion he was with Phelps from the time they departed from his house until they returned to Laycock's house; that he was all the time within sight of Phelps and by his side or at least within hearing, that he went into the ball-alley, with Phelps'after Fitch went into the barroom, that instead of Ackerson and Filley rolling balls, he Laycock rolled two balls with Phelps: that Fitch then came into the ball-alley and that Phelps and Laycock rolled only four more and then they returned to the bar-room; that in the ball-alley Phelps offered Fitch $150 for his twin cattle and Fitch said he wouldn't let them go for that sum, that it was not as much as he paid for them, that this is all that passed between Phelps and Fitch in the ball-alley; that Phelps and Laycock returned to the bar-room, and Fitch followed 247 theml there and sat down by the fire; that Phelps standing near the bar-room window offered $120) for the cattle and Fitch replied he should not let them go for that, nor let them go at all. Lhycock says he is sure he heard every word spoken in the ball-alley, and every word spoken in the bar-room, and that he has repeated every word said, in either place or any place on that occasion; that nothing was said about Miner T. Laycock, nothing about burning the new depot at Detroit, nothing about bunring the old one, nothing about a match,'nothing about killing passengers; nothing about killing even the Governor of the State, nothing about influence nor about hosts of witnesses, nor about putting down traitors, nor about screeaing friends; in short that not even a word related was said there, while it appears that Phelps repeats not one word of what actually was spoken. The witness Laycock shuts out all possibility of mistake by showing that the parties did not enter the ball-alley a second time, but that after remaining fifteen minutes in the bar-room he and Phelps left the Centre and returned to the place from whence they had departed in the morning. Phelps states that on December 19th, he went to Fitch's and rode with the young Messrs. Laycock; that he called at Fitch's house at noon, was invited to dinner, declined, didn't see the cattle in the forenoon but did in the afternoon; in a long conversation of two hours with Fitch, he proposed to Phelps to take an interest in some counterfeit money speculations; that he there made his proposition to Phelps to burn one of the depots-at Ann Arbor, Marshall, Kalamazoo or Niles, and offered him 5200 for that service. Be pleased now to remember that Fitch's barn was nearly half a mile distant from his house, and that, Phelps says, the scene at the barn took place, not in the forenoon on the occasion when he called at Fitch's house, but on the afternoon of the same day, and that it occupied two hours. Then collate the testimony of Martin S. Laycock, Henry T. Laycock,Christy Blackm'ar and Elizabeth Palmer.and you will find that Phelps went to Filley's that morning, attended by three of those persons; that while at Michigan Centre, he called at Fitch's house at 11 o'clock in the morning; that the whole duration of his stay at the Centre that morning was half an hour; that he returned with the same party and spent the entire afternoon, evening and night in the families of those witnesses, without having returned at all to Michigan Centre that day. Bear in mind also, that, while Mrs. Phelps, could have contradicted those witnesses, if their testimony, had been false, but she has since been upon the stand and has failed to do so. Mrs. Fitch has appeared here, offering to prove the interview between her husband and Phelps in the morning and the falsehood of the alleged interview at the barn in the afternoon. I have already shown you that the account given by Phelps of a conversation at the house of John Palmer in January, concerning Minor T. Laycock and implicating Palmer, Penfield and Laycock,. although, corroborated by Mrs. Phelps, is disproved by Christy Blackmar. Following now Phelps' narrativeuntil the date of April 11th, I ask you to take notice that he alleges that, on his return from Gras. 24B Lake to Leoni, on the afternoon of that day Corwin and Myres went with him to Michigan Centre uninvited, Corwin having paid for the spirits with which the vessel taken from Cuykendall's was filled, and' that Williams excused himself from going, on the ground that he would have no conveyance in which to return. A. S. Luce, Esq., Jdhn Cuykendall, John W. Kellogg and B. F. Smith, testify that Phelps invited Corwin and Myres to go to Michigan Centre to roll ninepins, and paid lacishly for the spirits which were drank as well as for those taken away, and that Williams was not present on that occasion. We have already exposed the falsehoods of Phelps and Lake, in relation to their mysterious journey from Grass Lake to Michigan Centre, on that memorable day. Let us look now into their account of the transactions of the night. Phelps and Lake represent Fitch as having been present at Filley's house, while two distinct private conversations were held in the bar-room, and two conversations of considerable length out of doors. All the witnesses agree that the time occupied, during the conversations and transactions of that night, was about two hours. Fitch's presence during a period so long is completely disproved. James 0. Cross, a reputatable farmer who was staying at Fitch's house, states that Fitch was absent from home only ten or twelve minutes. Amanda Fitch limits his absence to five or ten minutes, and they agree that he was out of his: house only once that evening. Win. H. Hudson, who was at Filley's bar-room throughout all these transactions, testifies that Fitch came in, held a public conversation of ten or fifteen minutes with Phelps, withdrew and did not return again that night. The important points in the transactions of that evening as related by Phelps, are that Fitch took Phelps aside and said, "Filley had,told him that he, Phelps was going to Niles that evening, that a lot of fellows had been hanging around them and that he, Fitch had sent Filley off with them a fishing: that while Fitch refused to pay any money in advance, he said that Phelps and Lake if successful, might,come back and take the oxen, and they would pay over the balance of $60; hat alhough this talk was private, Corwin, Myres and Faulknet heard a.part of it; that Fitch, Corwin and Lake, went out of doors together and Fitch -said to Phelps and Lake that rather than make any exposurees if they should fail they had better dig their graves before they should go3 that he would give them a match all ready; that if they should once get inside of the depot there would be no difficulty;.that -they (Phelps and Lake) would have to get camphene'at Niles, to put into the box, because they could not conveniently carry it; that Fitch advised them to return to Grass Lake, and separating there, take the cars at different points the next mornuing and proceed to Niles: and Fitch then told Corwin to fix them out-; that Fitch left the house, and that then Corwin opened the door of the store room, took out the box placed it in the wagon of Phelps and Lake, and they departed while Corwin and Myres went away in -another wagon. William H. Hudson was at Filley's house, before Fitch, and staid there until all had departed, relates that Fitch aamie in, and wasin 219 vited to drink, that he declined; that then, Phelps came from behind the counter, Fitch said to Phelps, " you did not remain long at Lansing." Phelps replied, no! he had done his business up quick and had got State bonds for $3,200, and he thought that small amount better than nothing. Phelps said that his horse had run away that day for the first time; hpfore that, the horse had been, very steady. He said also, that he had a friend in Minesota who had graduated with him, and who thought he could do well up there and he was going to move there the next week. Hudson says that after Fitch went out, there was a good deal of moving about and some drinking by the persons there." Hudson remained there a period of from one to two hours. The statement, by Phelps, that Fitch told him that he had learned from Filley that Phelps,was going to Niles that night, is manifestly false: first, because Phelps did not see Filley when there that day. Filley could have learned that purpose only from Lake in the afternoon, and during all that afternoon Fitch was absent from home until Filley had gone down the last time to the lake. The statement that " Fitch said there had been a lot of fellows hanging around there and he had sent Filley off with them fishing," is equally false, because no such lot of " fellows" had been hanging around there, and Filley had gone off fishing on his own motion without any communication with Fitch. The other statements, are equally false, because Hudson neither saw any such private consultitions, nor any such withdrawing from the room, and because the time Fitch remained there was insufficient for their occurrence. Phelps admits the statements, as given by Hudson, concerning the recovery of his claim at Lan.sing, and his acquaintance with the graduate at Minesota. The statement that Fitch told Phelps that the match would n6t fail, for it had been tried several times, is manifestly false and fabricated, because the match produced and identified, has be en tried, first at Niles, and then here, and has failed'; and it has been demonstrated, philosophically and conclusively, that it must fail to the end of the chapter. Again, the statement that "Fitch told Corwin to fire them off," must be false, because it has been proved that Lake was in possession of the key of the store-room; and, according to his own statement, he must have obtained the key from Filley. And yet, Lake does not say that he had either given the key to Corwin, or had told Fitch that it was in Corwin's possession. These falsehoods being exposed, the principle, "falsus in uno, falsus in omnibus," applies again. The counsel for the people, claim, that Phelps' statement is corroborated by Faulkner. That corroboration consists in this, that, in a suppressed con. versation, he overheard Corwin saying, "yes, after we get through." arid, "I think we can come it;" that, at another time, Phelps said loudly, "Boys, when I get back from Niles, we will have a time," and Corwin said, " Yes, we will tear down Cuykendall's bar and this too." Corwin said, " I am willing to pay something in advance," and handed Phelps something. Phelps said, "This will help pay expenses over the road; all paid in advance, helps like hell." Fitch, came 250 in, afterwards, and three times asked, "Boys, how do you do?" and "What is the news?" that they all went out doors for five minutes and came in again, and Fitch said to Phelps, "I shall be ready for you, I shall be flush then;" that Corwin said before Fitch came, that'all wouldbe right and money would be flush when Phelps should get back from Niles." No reliance can be placed on Falkner's statement of these details, although it may have been conscientiously made. He was a stranger there and all the persons assembled were unknown to him. Desirous as he may have been to understand and report truly, he was liable to misapprehend the dialogue and confound the persons engaged in it. It is certain that he mistook some other person for Fitch when they left the room that night. IHe says that he saw Fitch standing beyond the wagon when the box was put in. Fitch is proved to have left the party before that time and to have returned home, and neither Hudson nor even Phelps nor Lake says nor pretends that Fitch was at the place assigned him by Falkner on that occasion. We are asked to explain the remarks imputed to Fitch and Corwin in the recital given of the drunken revel, viz: a promise " to be flush" on Phelps' return from Niles and " that Corwin said he was'willing to make payment in advance." We reply that, as to Fitch, it is nianifest no such remarks were made by him, because if heard by Faulkner they would equally have been heard by Hudson, and yet Hudson did not hear them. Phelp's part of the dialogue was purposely spoken in a low voice, except a cue or catchword uttered loudly for the ear of Faulkner. The. meaning of Corwin and Myers' replies depends altogether upon the nature of the remarks which called them, forth. I see nothing extraordinary in Corwin's contribution to Phelps' expenses, and his expectations of a revel when Phelps should return, enriched by the receipt of the $3,200 to be obtained from the State of Michigan, or by payment from his pretended debtor in Massachusetts, or by a fortune to be secured through the partial favor and assistance of his distnguished friend, the Governor of Minnesota. Gentlemen, it is scarcely necessary to remark that if Phelps' narrative is false, the relation given by Lake cannot be true. His concurrence lends no confirmation. There are, however, cross-readings by these witnesses, which require a moment's notice. Phelps testifies that Williams said he should write to the Railroad Company, through an attorney, and offer to take a thousan'd dollars a year, for five years, for letting them off. Lake, on the contrary, attributes this generous proposition to Corwin. When, however, the counsel for the prosecution indicate the variance, Lake reconciles the conflict by saying he has heard Williams say the same thing. It is extraordinary that Phelps should have forgotten that Corwin made the remark, and equally so that Lake had not, in the first instance, placed the remark to the account of Williams, where it belonged. Lake informs us that Fitch said, on tle piazza. at Bascom's tavern, in Jackson, that it cost him a cow and twenty-five dollars to burn the old'depot; that he had paid fifty dollars to the same man for burning the new one, and that he was to pay fifty dollars more after it should 251 be burned; "that if we would burn the Niles Depot, we could have two hundred dollars in money, or the twin oxen at a hundred and torty dollars and the balance in money.' Phelps, who was present, gives us no such details of that conversation; but presents the same nefarious statements as having been made by Fitch, at the ball alley, on the occasion of his visit there with Wm. B. Lacock, which occurred before Lake's engagement began. It is manifest, therefore, that Lake has blunderingly taken from the common diary what was heard by Phelps alone, and produced it as a confession of Fitch, heard by himself. Although Phelps had stated that he was to be paid his expenses in case of a failure to burn the Niles Depot, yet he was leaving the stand without showing that he had received or even demanded his expenses. A juror pointed out the incongruity. He immediately replied, "They paid me before and after I went about sixty dollars, on account of expenses. Of this sum, Fitch paid me eight half dollars, two gold dollars, and one quarter eagle, making eight dollars and fifty cents, besides seven dollars paid Lake by Williams, on the same account." Lake, on the contrary, says that neither Williams nor any other person ever paid anything to him.on account of expenses, nor to his knowledge, was anything ever paid to Phelps on that account. He says further, that he was present, when the eight dollars and a half was delivered and received a~s spurious, and that it was in fact counterfeit coin. It will not surprise you, gentlemen, to find that Phelps and Lake harmonize in their account of Farnham's infernal machine, which they saw at his gate, where there was no other witness present, in the night time, when none but they and such as they could see anything. Nevertheless, it is strange that the engineer, who fabricated the matches produced here with such profound philosophical knowledge and exquisite skill, cannot describe the mode of operation of Farnham's infernal machine for blowing up the Railroad, although it consisted of two common tin horns, bound together at the narrowest part of the tubes with a clasp. Dr. Farnham was taken from his house in the night time, without notice, and his dwelling was then exposed to the most scrutinizing search of the police; but neither the machine, nor any of its superfluous materials, nor the instruments employed in the construction of it, have been produced. I pass on to Lake's account of the transactions of April 1 Ith. He says that Phelps and himself arrived at Filley's together about noon, and inquired of him if "the boys" were there. You know, Gentlemen, that "the boys" lived at Leoni, four miles east of Michigan Centre; and, according to Lake, he and Phelps had just past Leoni, where they could have been found, and had came down to Michigan Centre to inquire for them, where they were sure not to be found. Lake says they told Filley, "We have come to go to Niles." Filley replied, "I am glad; we are ready for you." Lake says, "[ was unwell, and laid down; after lying an hour, I arose again, came down stairs, and found Filley; we then had a talk about preparation for Niles. Filley went to the barn and brought the match. I examined it. Filley put it into the box, nailed it up, put it into the store room, 252 and saying,' it is ready for Niles,' put the key in his pocket." This ingenious narrative was, unhappily, in conflict with the testimony of Kane and Allen, who took Filley to the pond about half past twelve, before Lake arrived at his house, and detained him until between 3 and 4 o'clock. Lake removes the difficulty thus raised, while he gives a conclusive answer to Secord, the Beernans and Taylor, who have testified to his travels on foot with a match, in a box. tied up in a redl handkerchief. He was sick before; and now, like Don Juan in the Shipwreck, he "falls sicker," and enlarges the period of his repose, in the upper chamber, from one to three hours. H-ow could a man, who was obliged to sleep three hours in a day walk four miles oppressed with the weight tied up in that red bundle? Gentlemen, I have now shown you that the testimony of Phelps and Lake is unworthy of credit, by reason of their depravity-of internal evidence of falsehood-of conflict between themselves of flagrant avowals of deceit-and of collision with facts, incontestibly established. I advert briefly to some pretended corroborations. These are furnished, principally, by Messrs. Van Arman and Clark. Revert, if you please, to their account of the disclosures made at Gay's house. Van Arman savs Clark was standing too far off to hear. Phelps was talking with Gay. Phelps gave us the signal to approach. They were talking about burning the Depots at Niles and Detroit. Phelps said he would go out to see the friends at the Centre, and let Gay know what time they would be ready at Niles. Gay said they would, be ready to make a strike here at the same time. Who does not see that this conversation was contrived between Phelps. and Gay, for the purpose of corroboration? Again, Mr. Van Arman, describing the transactions at the same place, on the following night, says, (Clark being present, though not within hearing,) "Gay talked with Phelps about burning the new depot, and with equal care, avoided confessing anything about burning the old one." At the same time, Phelps, having had a private conversation with Gay, told Van Arman that Gay had given leave, and thereupon Phelps went up stairs, and exhibited the match to. Clark and Van Arman. What was there in all this, but a juggle between Phelps and Gay to impose upon Clark and Van Arman? You have a third corroboration ih the fact that Phelps lent Gay two dollars, in February, to purchase damphene; but it is deprived of all its value by the fad that Clark had been apprised that the money was lent, and was sent into Parker's to request himr to make a memorandum of the sale. Fourth corroboration: After setting fire to the Depot at Niles, with the fuse end of the match, Phelps, Lake, Clark and Van Arman returned together in the cars towards Detroit. When they arrived at Jackson, Filley was seen there, and he looked as if he was anxiously expecting sompbody.. Phelps concerted with Clark and Van Arman, that he should draw Filley into conversation, while they should listen. When a person is in a Depot, on the arrival of a train of cars, he is very apt to look as if he was expecting somebody. A conversation, of. course, occuried, of which three versions are given. First, Phelps' version: Filley-How did you get along? Phelps 253 I set the Depot on fire, but made a failure. They put it out. I have not made more than nine times. I have borne my expenses there and back. Filley-Go up to the Centre, and see the boys; they will make it all right. Van Arman's version: Phelps-I did not make more than nine times. Filley-You had better go immediately to the Centre; the boys are waiting for you. Clark's version: Filley- * * " Phelps- * * File ley- * * Of what value is a concerted corroboration like this, in which all that is necessary to explain the admissions or dec" larations brought in evidence is suppressed. Gentlemen, you must have observed, that an unusual and an un, known rigor and severity have been practiced in this prosecution, by combining, in one person, the two offices of counsel and witness. Such. a combination is disapproved, with as much earnestness, by legal authority, as it is feared by those upon whom its power is brought to bear. "I will never be voluntarily called as a witness, in any cause in which I am Counsel, Should my testimony, however, be so material, that without.it my client's cause may be greatly prejudiced, he may at once use his option, to cancel the tie between us in the cause, and dispense with my further services, or with my evidence. Such a dilemma would be anxiously avoided by every delicate mind-the union of C.ounsel and Witness being only resorted to as a forlorn hope, in the agonies of a cause, and becomes particularly offensive whenits object be to prove an admission made to such counsel by the opposite litigant. Nor will I ever recognize any distinction, in this respect, between any knowledge of facts acquired before and since the institution of the suit; for in no case will I consent to sustain, by testimony, any of the matters which my interest and professional duty render me anxious to support."-0Hofinan's tLegal Study, Vol. 2, p. 766. A word is claimed in this connection, by the witness, Dr. Hahn. He relates that in the cars, on the morning of the arrest, Fitch looked at the warrant, and said that it appeared that he was implicated with a certain George Washington Gay, in burning the Depot at Detroit. I do not know such a person. I have never heard of George Washingtonr Gay. No witness, except Phelps, proves an acquaintance between Fitch and Gay, and Phelps proves it only by alleged admissions. This denial of Fiteh, therefore, instead of being a corroboration of Phelps' testimony, is a contradiction of it, But Dr. Hahn says, further, that Fitch, after fixing his attention upon the warrant, said,'I believe that old Gay has turned State's evidence." The warrant suggested that opinion. The counsel for the prosecution criticise the use of the word "old," which, they say, is inconsistent with Fitch's denial; but it is manifest that Fitch spoke of his knowledge of affairs before the arrest. After the arrest, 6 old Gay's" name must soon become "familiar as household words." Gentlemen, I trust that I have proved that the conspiracy al'eged in this case, presents an immaterial issue, and is false in fact; that 264 the case rests on evidence of admissions only, proved by three witg nesses-Gay, Phelps and Lake; that the evidences of those admis, sions were false, because the facts supposed to be confessed are irnpossible, while the admissions are unworthy of credit, because they are unsupported by circumstantial evidence, and the witnesses who present them are unworthy of belief, and their testimony is contradictory, and is in conflict with facts incontestibly established. If these positions are true, it follows that this prosecution is the result of a conspiracy against the defendants. You have evidence of that conspiracy in the malicious threats of Wescott and Phelps, in an allusion by Phelps, showing an understanding with Wescott; in a negociation between Phelps and Gay, to predicate a plot on the casual burning of the Depot in Detroit, on the 19th of Nov. last, a plot for the ruin of innocent men; in the fraudulent manufacture of those harmless but fearful tokens, contrived to obtain credit for the narrative of Phelps; in the fraudulent transfer of those tokens, by those who fabricated them, to the possession of Gay and of Filley; and in the cunningly devised narrative of Phelps and Lake. But I will not follow that subject further. It belongs to another prosecution-a different tribunal-perhaps, to a distant jurisdiction. It is enough for our present purpose,,that the defendants are not guilty. Gentlemen, in the middle of the fourth month, we draw near to what has seemed to be an endless labor. While we have been here events have transpired, which have roused national ambition-kindled national resentment-drawn forth national sympathies-and threatened to disturb the tranquility of empires. He who, although he worketh unseen, yet worketh irresistably and unceasingly, hath suspended neither his guardian care nor his paternal discipline overt ourselves, Some of you have sickened and convalesced. Othershave parted with cherished ones, who removed before they had time to contract the stain of earth, were already prepared for the Kingdom of Heaven. There have been changes, too, among the unfortunate men whom I have defended. The sound of the hammer has died away in [he workshops of some; the harvests have ripened and wasted in the fields of others. Want, and fear, and sorrow, have entered into all their dwellings. Their own rugged forms have drooped their sunburnt brows have blanched; and their hands have become as soft to the presure of friendship as yours or mine. One of them-a vagrant boy-whom I found imprisoned here for a few extravagant words, that, perhaps he never uttered, has pined away and died. Another, he who was feared, hated and loved most of all, has faller in the vigor of life, Hc hacked down, His thick summer leaves all faded." When such an one falls, amid the din and smoke of the battlefield, our emotions are overpowered-suppressed-lost in the excitement of public passion. But when he perishes a victim of domestic or social strife-when we see the iron enter his soul, and see it, day by day, sinking deeper and deeper, until nature gives way and he lies lifeless at our feet-then there is nothing to check the flow of 255 forgiveness, compassion and sympathy. If, in the moment he i1 when closing his eyes on earth, he declares: "I have committed no crime against my country; I die a martyr for the liberty of speech, and perish of a broken heart"-then, indeed, do we feel that the tongues of dying men enforce attention, like deep harmony. Who would willingly consent to decide on the guilt or innocence of one who has thus been withdrawn from our erring judgement, to the tribunal of eternal justice? Yet it cannot be avoided. If Abel F. Fitch was guilty of the crime charged in this indictment, every man here may nevertheless be innocent; but if he was innocent, then there is not one of these, his associates in life, who can be guilty, Try him, then, since you must-condemn him, if you must-and with-hin condemn them. But remember that you are mortal, and he is now immortal; and that before that tribunal where he stands you must stand and confront hinm, and vindicate your judgment. t:Re -member, too, that he is now free. He has not only left behind him the dungeon, the cell and the chain; but he exults in a freedom, compared with which, the liberty we enjoy is slavery and bondage. You stand, then, between the dead and the living. There is no need to bespeak the exercise of your caution-of your candor-and of your impartiality. You will, I am sure, be just to the living, and true to your country; because, under circumstances so solemn —so full of awe-you cannot be unjust to the dead, nor false to your country, nor to your God. MR. VAN DYKE TUESDAY, September 15, 1851, 8 A. MD The Court benig in session, JAMES A. VAN DYIKE, Esq., counsel for the Prosecution, addressed the Jury as follows: May it please the Court, and Gentlemen of the Jury: I Cannot refrain from congratulating you that the long and wearisome investiga" tion in which you are engaged, is so near to its close. Many months since, before the leaves were green do the flowers had bloomed, ere the springtime had departed, and while our hopes and feelings moved in sympathy with the gladdening freshness which thel season shed around us, you were summoned from your homes, comforts, business and pleasures, to assume a serious responsibility- in aid of the administration ofjustice. Siuce then, while we have associated logether, and day by day dis'ha.iged, I trust with patience and fidelity, our toilsome, but solemn dutie, time ihas run its ceaseless course; the sumnmer came with all its joy and brightness-it, too, has faded away, and already the crimson leaves of the forest warn us that autumn is passing its withering fing ers over the face of Nature. I indulge in this thought because it induces the mind to reflect up. on our own condition, and the vanity of acting otherwise tharn ander a deep sense of duty, Most of us have reached the middle ag '56 -ozr spring time has cleparted —outr summer has almost left as-ou.P autumn is nigh, and ere long the descending snows of winter will fa I upon our heads. All things teach the dread truth that "life is flee!t ing," and that we should move through its mazy paths of cares and pleasures, with hope and vision fixed on the eternity which lies beyond. In this case, gentlemen, vwe have each a solemn duty to performlet us discharge it with a high sense of the responsibility which rests upon1 us. In the views which I am about submit to you, I will earnestly endeavor to treat this cause with the seriousness its importance demands, and with the candor and fairness due to you and to the Court. While I feel pleased in beholding the laurels which this trial has en twined around other brows, I will seek to gather none fur my own. will neither wander into the paths of fancy, nor address myself to those who sit without the jury box. I will remember, however dull it may render me,that my duty confines me to this cause, I will speak only of it, and address myself only to you. I will pass over the case gentleman, as nearly as possible in the same order which has been pursued by the distinguished counsel who last addressed you for the defence. I shall not seek or hope, to leave the impress of oratorical power upon your imagination, but trust, ere I conclude, to convince your reason, that every point urged by the defence is fallacious, and without foundation in the tacts and evidence before you. An objection of a technical character has been interposed by the counsel for the prisoners, which I propose briefly to allude to before his Honor, the Judge. The Court is aware, that at common law, an accessory could only be indicted and tried by one of two ways, viz: with the principal —the jury first passing on the principal's guilt: or secondly, after the conviction or outlawry of the principal-tthe record of his conviction affordingprimacfacie evidence of his guilt. It being found that this rule of the common law did not operate to the ftlrtheranee of justice, but rather to the shielding of guilt, the Act of 7 Geo. 4, C. 64, was passed to remedy tha evil. l'his Act retained the Iwo common law modes of trial of accessories before the fact, and provided a third, viz: as, and for a substantive felony; and this act is substantially and, indeed, almost literally re-ennacted in and by our own Rev. Stat. 1846, P. 686, Chap. 161, Sec. 2, which is as follows: "Every person who shall counsel, hire, or otherwise procure any felony to be committed, may be indicted and convicted as an accessory. before the fact, either with the principal felon, or after the conviction of the principal felon, or he may be indicted or convicted of a substantive felony; whether the principal felon shall or shall not be amen. able to justice, and in the last mentioned case, may be punished in the same manner as if convicted of being accessory before the fact." The present indictment counts as follows, viz: 1st. Against all as principals in the arson of the Depot. 2nd. Against George W. Gay as principal in the arson. 3d. Against the other defendants as accessories before the fact. Since the finding of the indictment, and after the arraignment and plea of Gay and of all the other defendants, Gay died, and the prisoner's counsel now submit, that although the indictment was well and valid up to the time of the death of said deceased, yet on the occurrence of that event, it became incompetent to proceed thereunder against others of the prisoners as accessories. The objection stated seems to be, that these prisoners are not indicted for a substantive felony, but under the common law form and rule along with the principal, and that he dying, the objection becomes valid. I do not propose, at this stage of proceedings, to discuss the subject at length, because a Court will not here arrest the trial, or prevent the finding of the jury, unless for conclusive reason. After all the expense involved and time consumed-after the postponement of the ob. jection to almost the close of the case-the verdict, which may dispose of the whole matter, should not unnecessarily be prevented, especially as, if adverse, the prisoners can have the benefit of their objection by distinct motion to the Court. The learned counsel in support of their objection cite, 1st, A precedent of an indictment for substantive felony, from Archibald's Crim. PI. 2nd, A text from Russell on Crimes. 3d, The Queen vs. Ashmall & Tay., 9 C. and P., p. 236. The precedent and text from Russell require no examination. The case from C. & P. appears to sanction the general idea of the counsel here, though not to the full extent claimed. It is a nisi prisi case. It does not-appear to be regarded or cited afterwards as an authority. The objection of Carrington for defendant, was that the name of the principal should not have been given. The subsequent case of Regina vs. Caspar and others, 9 C.& P. 289, shows that in an indictment against accessories, the principal felon shall be named, and it, with the still later case, 9 C. & P. 555, shows the unsubstantial character of the objection. The more recent case of the Queen vs. Wallace & Wallace, 41 E. C. L. 113, is quite in point. — The indictment had a distinct count against Loose as principal, and proceeded to charge said defendants as accessories before the fact in continuation of the same count. Loose had not been tried, was not upon trial, and had not been outlawed. The defendants Wallace were upon trial;this distinct objection was taken;over-ruled by the nisi priusjudge; the objection reserved for the opinion of the fifteen Judges, who held the conviction correct, and the prisoners were sentenced. Again, I claim that the offence of burning a depot was not a common law offence, and that under the peculiar language of our Statutel it is doubtful and unsettled whether our Courts will hold it to be strictly a felony. Hence all the defendants may be guilty as principals for a misdemeanor under the first count, there being no accessories to misdemeanors, and all who would be accessories to felony, being principals in misdemeanor. The Court would on this ground alone, decline now to stop the trial. But I insist further, that the third count in this indictment is a good count against the defendants for a substantive felony, and that it merely refers to the preceding count for a particular description of the offeuce. 2. Th at if it is not, the defect is formal, not substantial —"does not tend to the prejudice of the defendants," and is therefore cured by Sec. 34, p. 700, Rev. Stat, 1846. 3. That the above cases cited 17* firom the E. C. L. Reports, together justify the sustaining the indict. ment in its present torm. 4. That even at Common Law the accessory could be legally tried by his own consent without and before his principal. Chit. Crim. Law, 219. In the case of Ashmall & Tay, relied upon by defendants above cited, the objection was taken before plea, that the defendant was not compellable to plead to the indictment. In the case at bar the prisoners object too late, They have pleaded to the indictment, have proceeded after the principal's death, land put themselves on their defence, thereby signifying consents and have actually consented in writing, to proceed after Gay's death. It is therefore: humbly submitted for these reasons, that this Court will not now entertain or sustain the objection, but permit the case' to go before and be passed upon by the jury. Gentlemen of the Jury, while in some respects I rejoice, in others' I regret that we are here to-day. I rejoice that although during the long period we have spent together, death has swept away some conl nected with this trial —that although disease has at times visited you or your families, yet that God in his providence has, amid your prolonged and arduous cares, preserved you in health and vigor to discharge the high duty you owe to themandyour country. I am glad that we can here apply our minds to the calm investigation of truth; that. while the Sun of Heaven lights up our beloved city, and sheds its radiance upon the fields and forests and beautiful river within our vision, we can sit free from the excitements of life, and with an eye sin, gle to the ends of law and justice, and devote our best energies to the necessary, though laborious task of a fair and candid examination of the mass of evidence which has accumulated in this cause. I regret, oil your account, that the responsibility of a decision has fallen upon you1 and for myself that it has devolved upon me to say ought,bout these unfortunate prisoners, yet they are duties that may not be passed by or put aside. That you will discharge your duty n justice, though tompered with mercy, I,have no doubt. I would, gentlemen, that I could perform mine as well. You must expect from me, gentlemen, no eloquent declamations, for I will frame no dazzling theories upon a misrepresentation or perversion of the testimony, whether accidental or designed. I mvil not weave a single wreath of fancy, but will seek to bind your minds and my own to the plain and unadorned truths that are apparent in this case, and which alone should influence you. Although I have to follow in the wake of elaborately prepared and eloquent speeches, I will not seek to emult3 them. I will neither quote.Latin, or decorate my periods by selections from the classic pages of Addison; nor will I follow the counsel through his terrible phillipic upon the leading witness of the prosecution, which I fear lost much of its force upon minds familiar with the strangely similar portraiture of Junius drawn in the "Vision of Judgment." But while I refrain from pursuing the meteoric fancies, eloquent phillippics, and sublime apostrophes to the''sainted dead," which have shed a false though brilliant light upon the dark detail of. crime revealed to you day by day, I will go through the case fairly and discuss it fully. I will "nothing extemnate, nor aught sel iown in malice. I will base my arguments upon the testimony, not as I would have it, but as it is. I will speak, not to the world, but to you, who can correct and hold me in judgment, if I fail to redeem the promises of fairness and candor which I make. HEeaven cal witness for me that I desire no fame at the expense of these unfortunate menr I will use ino bitter words; I will affect no bitter loathing; I will assail neither man, woman or child, except under the urgent pressure of duty and necessity. I wish 1 could be spared the painful task of doing so at all. During our labors death has visited some of those who awaited your judgement-it is to be regretted. By none was it more lamented than by myself and the gentlemen associated with me for the prosecution. I hoped that respect for the inscrutable decrees of Provideice, would have sealed all lips upon that sad occurrence. If it had rested with the prosecution, the dead, however guilty, wouid have been suffered to slumber in silence. Neither you nor I could close our eves to the solemn fact that "those who were, are not.' Death was in our midst, and though silence might veil its horrors, like the skeleton at the Egyptian feast, its unseen presence was felt by all. — But for no purpose, for no end, not even to convict the guilty, would the prosecution have invaded the tomb, and dragged the image of its lifeless tenant before you, either for unseemly invective or scarcely less seemly panegyric. The counsel for defendants have judged otherwise -it haLs seemed to them wise and proper to tear aside the veil that divides the living from the dead, and to invoke the "sainted spirit" of the leader of these defendants-a phantom, gentlemen, that I know will fail in the design of frightening you from your propriety, but the invocation of which entails on me in certain portions of my argument, the painful duty of speaking of the dead and their deeds, in terms which I would: fain use only of the living. It would be unseemly to seek occasion to probe the deeds and motives of those who are no longer of this world, but it would be criminal weakness to shrink from the task when duty demands its performance. Much, far too much, has been said to you, gentlemen, about excitement. However pleasing and eloquent all this may have been, like too many of the arguments urged upon you, they "will not bide the test." Excitement! where is it gentlemen? Surely not here. Whom doesit influence? Surely not you. Examine this "excitement" upon which such impassioned appeals have been made. What is it? Four months since, thirty or forty men, charged with atrocious crimes were arrested and brought to our city. The crime with which they stood charged was one that touched us nearly. It had threatened to reduce our young and beauteous city, to a mass of black and smouldering ashes, and to entomb in its ruins, propeities that were the reward of long and ceaseless toil. Charged with this fearful crime they came among us in irons, and surrounded by every moral evidlence of guilt. It was natural that for a time, the public pulse should beat the quicker, and so it did, but there was no attempt at violence; there was no desire that the accused should meet ought bnt a fair and impartial trial, and almost before they were lodged in our jail, the excitement their arrival created was again hushed, and the pulse of our peaceful and law-abiding city again beat with its wonted tranquility; 260 and as you well know, during the greater portion of this trial, but for the crowd of witnesses, the little room in which we pursued our investigations would not have been one-third full. Excitement! Among whom? Where in two hours a Jury was tried and empannelled, each member of it a resident of this city —this hot-bed of excitementand each member of it equally acceptable to the prosecution and the prisoners. Dangerous excitement! It is a foul, and though I love not harsh words, a false stigma upon our city. Where could these prisoners have had a fairer trial or more indulgence extended to them? Where else in a city filled with able counsel, unengaged by the government, would the prosecution have delayed the triul, at great sacrifice, merely that counsel might be procured for prisoners, from a distance of hundreds of miles? Where, before, has such freedom of defence been suffered? Where before, have the rules of law been waived by the prosecution, that the defence might introduce all that could be found to militate against the character of an important witness? In what other instance has counsel for defence, without check or interruption, been suffered in an address to the jury, to comment upon testimony stricken from the case-to travel over the history of the country, and read unsworn letters as evidence?. In the whole range of criminal reports no case can be found in which such liberal indulgence has been extended in aid of the defence of prisoners. Much has been said to you about public opinion; but what have you or I to do with it? It cannot, and itshould not, influence us. The streets may be filled with rumors and conjectures; but we are not in the streets, and such things float past us unregarded. We are in a building, for the present at least, consecrated to the administration of Justice; we are gathered at its shrine-if not a holy, a solemn one; and excitement and public opinion should both be banished from the elements that surround it. If strong public opinion exists, it is not the creation of the prosecution; and it is unjust, by implication or other. wise, to charge it upon us. If the City Press, for a time, published news in connection with this trial, that it deemed important to the public, it has long ceased to do so. If this much-talked-of public opinion exists, who made it? Not the prosecution; its lips have been uniformly closed by a sense of propriety. Anil I would ask those who address such language to you — ave the prosecuting counsel run through the streets, pledging their honors to the innocence or guilt of the prisoners? Have they sought, dayafter day, to raise an influence that might be brought to bear upon your deliberations? Have they sown distrust broadcast in the community, or gathered public meetings for the purpose of denouncing these judicial proceedings? Have they got up death-bed scenes to affect the imagination of women and children; for I presume they were scarcely designed to influence men? Have they published sermons of doubttul morality and perverted taste, for distribution, with reports of Supervisors, comments of the Press, and fancy scenes by youthful and ardent counsel, annexed? Have they done aught but their duty, or done that aught but fairly? Have they passed through the streets, stating that they knew, and could wager, that certain of the jury, they might name, would never agree to convict? No, gentlemen, the prosecution do no such things, and "laugh to scorn" 261 those who do. They know you; they have faith in your intelligence and integrity, and await with patience and respect the result of your judgment. They know you, and despise the childish weakness which seeks, by such shallow courses, to "tnrn awry" the even justice of your deiiberations. We are here to seek your verdict by no such means; we are here to discuss testimony, and, aided by lights of past ages, and the wisdom and experience of our respected Judge, to separate truth from falsehood. You have heard this testimony; you have listened to it with unwearying patience; you will soon retire, "the world forgetting," though not by it forgot, with your responsibilities gathered upon yourselves, to make up your verdict according to that law which has been well styled "the perfection of human reason," and which, however eloquently it may be assailed, even by its own disciples, who serve and minister at its shrine, bears stamped upon its venerable front, the sanction of ages, of sages, and of worlds-willing, if you can, to acquit these men; but ready, also, if your judgment and the law direct it, to find them guilty. Permit me to call your attention for a single moment to the subject of bail, about which so much has been said to you. It is true that with the matter of bail you have nothing to do; the propriety of requiring bail, and the amount at which it is fixed, is exclusively a question for the Court. It cannot enter into your deliberations, or form any portion of the ingredients from which you are to extract your verdict; and the same may be truly said of many other topics upon which you haye been eloquently addressed. Yet as the prosecution has been assailed in relation to this question, both out of court and in it; as it was the foundation of a highly wrought and elaborate appeal to you, you will admit the propriety of my saying a few words in relation to it. Why the eminent counsel should have addressed you upon this subject I am at a loss to conceive. I can scarce believe he would pay you so poor a compliment, or that his own judgment would be so much at fault, as to suppose you such men as even his acknowledged power could seduce from the path of duty you are sworn to tread, or deceive into the fabrication of a verdict upon a matter that is is in no sense submitted to vou.'A case of supposed oppression is a tempting field for the display of rhetorical powers, and did I possess the fluent tongue of the eminent counsel, i too might be tempted to create a field suited to my taste, abandon the dry details of this case, and sport "fancy free" around it If the oppression and tyrany described in relation to bail did actualy exist, sympathy with its victims would be an emotion natural to the human breast, and it would naturally become the chosen theme of the conscious orator, but even then, gentlemen, to it, you would have nothing to say. Laws which we ourselves have framed, and which we have not yet deemed fit to alter, has vested the decision of such questions not in you, but in the court; those who disapprove of that law -as undoubtedly they have a right to disapprove,should address themselves not to jurors sworn to administer law as it is, but to such popular assemblies as can influence a revision of the obnoxious statute. But again gentlemen, does this tyranny and oppression really exist, or is it 262 -- "a false creation Proceeding from the heat oppressed brain?' You will readily concede that persons suspected of crime should ib arrested when the evidence of guilt is fair and reasonable. If arrests were only made when guilt was a matter of absolute certainty, they could never be made at all, for guilt is certain, only after conviction. Then, there was no oppression in arresting the prisoners. If a Grand Jury after careful investigation thinks proper to present. an indictment in the form prescribed by law, you will concede there is no great oppression in saying that the accused should be submitted to the ordeal of a trial. But how ensure a trial? If left at liberty the guilty conscience would prompt to flight, the guiltless alone would abide the issue, and courts would be engaged in the constant trial of innocent persons. There is no alternative left but to confine the accused, or require bail in such amount as will ensure his presence at the final ordeal. The system of bail is not after all the instrument of oppression but one of the great safeguards of society-converting the trial of c;iminais from chance to reasonable certainty. But we are told the bail demanded is exhorbitant. The amount of bail fixed is large, but it is fixed as it should be, with reference to the enormity of the crime charged-the circumstances of the prisoners -and the inducements that would lead them to flee from justice. The prisoners differ widely in worldly circumstances-the more wealthy could more easily find bail in a large amount-their social position too would-involve a greater motive to escape conviction-and therefore a wisely exercised discretion has varied the amount of bail required, in accordance with the individual circumstances and position of the prisoners. The object of bail is not to fix a price upon the avoidance of a trial, and thus compromise with crime. Here where the laws are mild but strictly and impartially administered is not the place where s offence's gilded hand may shove by justice." The design of bail is to secure the presence of the accused. No more has been required in this ease. I beg you gentlemen to let your recollections revert to the time when this question of bail was legitimately debated before this Court, though in your presence-and without knowing your opinions, ask, with confidence; did you then think it was exhorbitant? If you did not think so then, why should you think so now? Surely not, because you then heard it calmly discussed before his Honor, and since fervidly before yourselves. You will remember that it was stated that the defendants could furnish any amount of bail; persons so vaunting, and.harged with one of the highest offences known to the law, should be held io bail in no light sum. Interesting calculations have been placed before you, and you have been shown by figures'which never lie" but which I confess have sometimes deceived me, that the bail required, swelled up to an enormous sum and perhaps it does, but it does so by procecs ofmultiplication. The fact t at there are forty defendants, does not lessen the character of the guilt o f each one nor should the complicity reduce the amount of each individual's bail. It would follow there' fore, that the aggregate amount of bail would be forty tim es as great as that required if there was but a single defendant, a resa It that does t63 )t indicate oppression but which in the hands of an ingenious mathematician produces very high sounding figures. I will waste no more of your time upon this subject; it is the same which was dauly considered and calmly decided in an early stage of this trial. It has been resuscitated and brought before you surrounded byheated invectives against "corporations," but as corporations chance to be governed by the same law as individuals, and are entitled to the same protecting care, I confess I fail to perceive that even this new ingredient makes out the case of "tyranny and oppression." Again and again you are told that Death has visited and thinned the ranks of these unfortunate men; and the corse and its shroud are seized upon as fit pictures to disturb your visions, in the hope apparently of making you shudder as you gaze. And because Providence has deemed it fit to remove two of these defendants, shall we be told in deliberate argument, that you are therefrom to infer the innocence of those who are left! Is such to be the basis of a solemn verdict? Permit me to ask you gentlemen-what have you to do with deathbed scenes -false in fact, morbid in taste, and wholly irrelevant to this issue? You will. I am sure, entirely dismiss from your inmaginations, these ghostly fancies, which your good sense has doubtless prevented front fnding lodgment in your minds. But the picture is afaacied scene-destitute even of the merit of simple truth. The dying words, which are now so soughit to be perverted, were in fact of far different import; and wiere flung off from a fevered brain amid the fearful delirium of deathly collapse, and let me say, dressed up as they now are, they would meet from the deceased, could he hear them, no sign of recognition-naughtbut the smile of derision. They might serve to adorp the page of some yellow covered novel-they have served to grace two elegant perorations-but they scarcely seem appropriate in the argument of atrial of such magnitude and importance. [ regret that the last delirious moments of the dead should be the subject of public comment; but as counsel on the other side have thought otherwise, it is my duty to follow them with the truth, and it will be the duty of the Colrt to tell you to banish them from your minds, if perchance they linger there. Gentlemen, you have been gravely told, that' you stand between the living and the dead," that " the lightest error in your finding, will prove a source of constant remorse," that " the thought should make you tremble.'? If this indeed be trueyou may well tremble. Upeertainty and imperfection are stamped uhon earth, and upon Man, ts choicest production,and upon his proudest efforts. Feeble man talking of certain ty! His loftiest fablics crumble beneath the step of time; or are crushed or scattered before an hours' breath. His cultivated intelfect-his glowing mind-lie shattered and quenched in a moment's space. No gentlemen, no such fearful responsibility rests on you —no such unerring certainty is required of you-and if he who seeks to grasp or attain such perfection, will only realize how "Vaunting ambition doth o'er leap itself." Neither reason law or sense requires from you the exercise of superhuman attributes. You are bound to exercise caution, care, and deliberation-to weigh the evidence with your best judgmen-to:ift it with 6'4 your keenest penetration; and having done this, to state honesty the convictions of your minds-no more and no less. In this connection, I beg to call your attention to the following passage, found in pages 386 and 7 of (owen & Hill's notes to Philiip's Evidence, and which is a portion of a charge delivered to a jury. It will have more effect on you than. any language of counsel and will explain away the sophistry that seeks to engender fears and doubts in your mind. It has often been said by counsel that Jurors in rendering a verdict swear that the prisoner is guilty or not guilty. The Jury swear to no such thing; they declare in rendering a verdict the result of the conviction of their minds from the evidence produced, having previously sworn to give a true verdict according to the evidence." Speaking of the extreme cases so often cited before Jurors the same learned aothor says:' The plain, practical rules of evidence established for ages should' no be shaken by such collections of cases in the works of theoretical writers. Such cases may be inserted to induce greater caution in jurors; but if employed for a ny other purpose, their applicatim in the general ity of cases depending on circumstantial evidenceis dangerous in the extreme." [The learned counsel read several other passages from the same author, to the effect that jurors, even though they sometimes erred, were not accountable for more than a wise and careful exorcise of their judgment, and then proceeded: Gentlemen, in this case, I cherish no resentment. I feel no wound. My breast bleeds fiom uo poisoned shaft. My heart harbors no other feeling than kindness to all concerned, and most h.appy would I feel, if consistently with duty, 1 might avoid saying a single word that could bear a personal applicatication to counsel or others. But the stern dictates ofduty compel me to say that the learned counsel who has preceded me, has argued to you upon a false basis-whether it was the result of accident or design. it is not for me to insinuate. But it is frme now to say, and hereafter to show to your entire satisfaction, that you have not been frankly dealt with. The testimony was presanted to you, through a false and discolored medium. After the announcement made several days since, by one of the counsel for defeince, that their entire time, from almost the commencement of this case, had been occupied in making extracts, analysises, codifications, and tables of the testimony, which would be presented for your consideration by his distinguished associate. I did.expect that matter, so laboriously and elaborately prepared, Would have been characterized by at least some show of fairness and candor. Has it been? Fhe coloring of testimony is one of th, most frequent errors of counsel; where this arises from warm and hasty discussion, it is excusable-for it is natural that the mind heated by debate and recalling the evidence, by the sole aid of fallible memory, should lend to it the tinge and hue of its own warm hopes and feelings. But whether the same charitable excuse can be extended to written tables and extracts -" cold inanimate matter"compiled line by line and figure by figure, by the sun's bright beam, and the lamp's glimmer, it is not for me to say; but it is free for you 265 to judge. If the fervent zeal of counsel has led them unconsciously into this error, far be it from me to censure them, or do more than correct their mistakes. The office of advocate is one of the highest trust and confidence. In no other relation of life does man place all that he can love and cherish so entirely in the hands of his fellow; and he is unfit to discharge its sacred duties, who has not zeal, and sympathy, and ardor sufficient at times, amid the hot excitement of argument to lead him even into errors. Faults thus arising, partake largely of the characteristics of virtue; they spring from the same source as our holiest emotions, our best and gentlest feelings hang around them in graccful"drapery; and though duty might compel me to remove the veil, I would do it gently, and not with a ruthless hand. -But it is different when these errors spring not from impassioned ardor, but from midnight study. In the latter case, they should arm jurors with a degree of suspicion, but of all this, you will have to judge. It is mine to tell you that the testimony has been unfairly stated to you, and that almost every point taken by the learned counsel, has been erected upon a misstatement of the evidence. 1 am conscious gentlemen, that this is a bold statement; and that if I fail to maintain its truth, it will react upon the prosecution. But if you follow me carefully as I review the argument of the counsel, and read the testimony in connection-not fiom manuscript extracts, but fiom the printed evidence which many of you hold in your hands, I have no fear that you will deem I have overstepped the bounds of truth. After disposing of some other preliminary remarks of counsel, I will call your attention back to the points urged in connection with the evdence.. The learned counsel has solemnly informed you that this is Detroit-a proposition based upon truth, and to the entire accuracy of which, I am thrice happy to assent. He has further informed you that upon the line of the Central Rail Road there are some humble hamlets constituting Leoni; that fifteen years since, the Legislature of this State, commenced the construction of a great thoroughfare, which passed through that same town of Leoni; that its agents were kind to the people, and the peaceful occupants of this "small district" reciprocated the feeling; no cattle were killed; the engine and its train passed safely by-and-no murmur of complaint disturbed the quiet harmony of the scene; that in an evil hour, the State forgetting what was due to herself and the people, sold the road to a heartless and greedy Corporation-then the scene was changedtyranic agents frowned-cattle were killed; complaint was followed by imprecation —and amid the humble hamlets of Leoni, was commenced a struggle-which in a form of justice, a grave and distinguished Senator tells us " can have but one end in a country where jealousy of corporate power can never be suppressed." Such, gentlemen, is the fancy sketch drawn for you by the defence. It is simply untrue; but you must permit me to tender my meed of admiration to the luxuriant imagination that could paint such a scene fiom such materials, one so gently beautiful —so unique — so totally unlike any thing that was ever seen or dreamt of round "' the rural districts of Leoni." `266 Gentlemen, the true history of the road tells an entirely different tale; that from the hour when the first locomotive left this City, down to the hour when the State sold her interest to this Corporation, there was nothing but trouble and heart-burnings from this very cause; and in this very town of Leoni, that among the very first who raised the cry of complaint and hortility, was Abel F. Fitch; and that the seeds of enmity which have since ripened into such bitter fruit were planted and had sprung to goodly growth, even while the road was still managed by " the kind and gentle agents of the State." I tell you as a matter of history, that the Company has, in respect to cattle killed, pursued the same policy as did the State. I will show you the truth of this, and then you will judge of the consistency of eulogizing the one and denouncing the other. When the late Mr. Wells was Superintendant, the State refused to pay for cattle killed; afterwards, perhaps, as elections approached, it did pay for awhile, but soon found it was creating a cattle market at every crossing on the track; that to pay for such accidents(?) would drain the entirerevenue of the road; and the old and only true policy, was adopted. I will read you a sentence from the Report of the Board of Internal Improvement made in 1845, while the road was still managed by the State, and then tell meif it is I or the counsel who paints your fancy scenes? I refer to Joint Documents of 1846, No. 4:' The amount paid for killing and maiming cattle is becoming enormously large. If animals are allowed to run upon our tracks, very many must inevitably be killed; and when no want of care on the part of the engineer be proven, should not the loss fall entirely upon the owner of the property destroyed." " If the owner is not debarred from collecting any portiin of the loss, should he not at least share in the risk, say to the amount of one half of the damage?'5 Such was the policy of the State, and the latter and kindlier of the above suggestions has been the policy of the Company; and the people along the line, save only in Leoni, have generally acquiesced in it. What has been the history of the road while in the hands of the State? For years it dragged its slow length along; an incumbrance and a burthen. The State needed engines, cars, depots —every material to prosecute or sustain with energy or prbfit, this important work; but its credit was gone, and it was immersed in debt. Our population was thinly scattered across the entire breadth of the Peninsula. Engines dragged slowly and heavily through the dense forests. Our City nurnbered but 12,000 people; our State was destitute ot wealth; our far-'pers destitute of markets; our laborers destitute of employment; and so far as the interests of lhe State and her people were identified with the Railroad, itpresent ed a joyless resent, a dark and frowning future. In a fortunate hour, the State sold the road, and the millions of this denounced Company, were flung broadcast through our community; they took up the old track, relaid a better one, extended the road to the extreme line of the State —laid down at enormous cost; over 400 miles of fences to guard the property of all, save those who wanted a beef market at each crossing; multiplied the accommodation seven-fold -quadrupled the speed-increased traffic and commerce, so that while 267 in 1845, the State passed 26,000 tons over the road; in 1850 the Coinpany passed 134,000 tons; created markets for out' products, snatched the tide of passing emigration, from the hands of a steam-boat monopoly, hostile to Michigan, and threw it unto the heart of our St-te, until now, where heaven's light was once shut out by dense forests, it shines over fertile fields, and rich, luxuriant harvests, and the rivers of our State, which once ran with wasteful speed to the bosom of the Lakes, turn the machinery which renders our rich products available. With them Capital made its home amongst us, our credit was restored-hope and energy sprung from their lethargic sleep, labor clapped her glad hands and shouted for joy; and Michigan bent for the moment, like a sappling by the fierceness of a passing tempest; relieved from the debts and burthens, rose ersct, and in her youthful strength, stood proudly up among iler sister States. Who shall stop this glorious work, which is spreading blessings and prosperity around us? Who shall dare to say, "thus far shalt thou go and no farther?" Who shall dictate to it after doing so much? Must it now pause and rest in inglorious ease? No, gentlemen, it shall not be stayed; it shall speed onward in triumph; it shall add link after link to the great chain that binds mankind together; it shall speed onward, still onward-through the gorges of the mountain-over the depths of the valley, till the Iron Horse, whose bowels are file-~" out of whose nostrils goeth forth smoke," and " whose breath kindleth coals,' shall be heard thundering through the' echoing solitudes of the Rocky Mountains, startling the live Indian from his wild retreat, and ere lbng reaching the golden shores of the far off Pacific, there to be welcomed by the glad shouts of American freemen at the glorious event which has conquered time and distance, and bound them by nearer chords to older homes and sister States. A detestable Monopoly! These railroads built by united energies and capital, are the great instruments in the hand of God to hasten onward the glorious mission of Religion, and Civilization. Already is our Central Road stretching forth its hands, and giving assurance that soon shall its iron track reach across the neighboring Provinces from Detroit to Niagara; and that ere long the scream of the locomotive shall be heard over the sound of the cataract —which shall thunder forth in deafening peals, that glorious event. Our bretlren on the shores of the Atlantic, with whom we are bound by every interest, association and affection, will hail the shortened tie with ardent welcome. Beneath the beneficial influence of Companies like this, space is annihilated; weeks are reduced to the compass of days, atnd in spite of the wicked purposes of bad men, this and kindred Companies shall continue to spread and contribute to the greatness and prosperity of our country, until the earth vibrates with tie pulses of her glory. But Leoni is a "a rural district." It is one of the oldest settled towns of the State; but its statistical history tells a strange story of its progress, and gives a sad incident of its welfare. While a-vast tide of emigration has poured itself into our State; while forests have becom e fenced and cultivated farms —rural districts, populous ones —villages, towns and cities —in every other part of the State; in Leonithis place of "hamlets," and "refuge of virtue"-the population h as 268 decreased-its population in 1850 being less than in 1845; a significant fact, gentlemen, and one that indicates that, if it is "a rural dis trict" now, it will be still more emphatically a rural district ten years hence, unless a better and more law-abiding spirit takes up its abode in tlie hearts of that community. The truth of this anomaly in the sta tistical history of our State, will be found in "Munger's Landmarks,' and other statistical tables. But, gentlemen, you are told the Railroad Company employed spies; and, in the hope to rouse your prejudice, a fierce denunciation has been poured forth against them.'Tis true that, at the close of his remarks, counsel tried to spread a little sweetness over the poison he had scattered; but, gentlemen, you nor I cannot soon forget the bitter terms in which these men were assailed. We cannot forget the language used, or that such men as ihr. Van Arman, Mr. Clark, Taylor, Hudson, Faulkner, Rogers, were named, and held up with every term of obloquy, as spies, unworthy of credit. Of IMr. Clark, who, I perceive, is not present, I may say a passing word. It may seem wise to counsel; the spasms of a hopeless defence may demand an attempt to fling odium over the fair fame of a good and worthy man; but he who wantonly assails Darius (lark, in this community, is mistaken, and will find, in the end, that his bitter speeches, like Arab curses, "Still come home to roost." Gentlemen, there is not, in our entire State, a man better known, more loved, or more respected, than Mr. Clark. Kindly in disposition, courteous in demeanor, and possessed of a high order of abilities, his fellow-citizens have again and again conferred on him offices of the highest trust; but lives there a man who can say he has discharged them with aught save honor to himself, and benefit to his fellow-citizens? His horne is surrounded by fi ends who love and admire him; and I fear that the bitter words of the counsel will grate harshly on many an ear. I submit to you, gentlemen, that imputations of discredit cast upon such a man-a gentleman of high character and position, and of unblemished reputation-are both improper and unwise; and that counsel who became such unjust assailants; forget "That he of old, who struck the oak, Dreamed not of the rebound." But it is said others were employed who do not stand so fair and high; even so, gentlemen; I am still too obtuse to perceive the impropriety of employing them -to find out the guilty perpetrators of these outrages, nay more, I think the duty of so doing was due by the company to the community, even more than to itself. Let me recall your minds to the outrages on this road. What was its state! What would have been its proba le fate had criminal inaction marked its management? Whether sitting in your homes or attending to your business, you must have herad that the passage over it had become dangerous —that in consequence travel was almost-diverted from it. It is a matter of public notoriety, that the company was compelled to stop running a night train, as to do so, endangered the lives of passengers. Engine after engine was flung from the track-bullet after bullet whistled 269 round the engine house, till the passage of Leoni, "the rural district," became one of peril and danger, and the engineer who passed in safe, ty returned thanks to Providence. Under such circumstances what was the company to do! Arm men? take the law into their own hands, and shoot down aggressors along the line of the road? Were they to rest until hundreds of lives were sacrificed? until the line of the road was made desolate and waste, and the soil of Leoni was enriched by the mangled bodies of our citizens? Ask yourselves the question; gentlemen; would you have entrusted yourselves or your families, over that road in the night time? You know you would not Under such circumstances it was not only a right, it became an imperative and solemn duty to use the most effectual means to arrest the work of devastation, and stay the crime stained hands of those who would murder, not by units, nor by tens, but by hhndreds. In the language of one equally eminent for talents and virtues, "ifin her whole wide armory, justice had but one weapon that could pierce the aggressors, they were bound to use it." It was a duty they owed to the public, and for the non-performance of which they would have been held strictly to account, Had this company failed to use the only effectual made of bringing guilt to light or punishment, what would have been the result. Limb and life were perilled, they would have been lost. Our State would have been disgraced. Already travellers, under the salutaroy warning of handbills, braved the passage of the lakes in the most stormy season, rather than the still more perilous passage of Leoni, and soon our lovely Peninsula, branded by crimes more fearful than any that have yet marked the history of our couitry, would be shuddered at and passed as worse than a moral charnel house. But what means should be used? The only effectual means were to employ men who might gain the confidence of that community, and become the repositories of the fearful crimes that had made Leoni notorious. Experience taught this truth-that crime stalks not in the sun light, but loves darkness. You will remember that while the obstructing of an engine is the most fearful and terrible crime that the human mind can contemplate, it is also one easily accomplished, with every protective against detection. It can be done in the night time, by a single arm and in a single moment. You will remember that the guilty bosom unburthens itsely only to what it deems a kindred spirit. You will remember that, although these outrages continued during the space of two years, although every ordinary means of detection was resorted to, no guilty perpetrator was detected. It was in vain that ordinary police were stationed along the road. The allies of this fearful combination were in every place —they penetrated'into the offices of our prison agents —they insinuated themselves even into the employment of the company-they were apprised of every ordinary movement —and whenever a watch was placed the spot was known, and the offender passed further on; they laughed at every ordinary precaution, and grew fearfully bold from lengthened impunity. From the breaking of a hand car in'49, they made rapid strides, till in 1850 they contemplated the shooting of every engineer, the entombing of whole trains, and the burning of depots. And, gentlemen, you will 27O not forget the significant fact) that although it is conceded that these outrages were continued for years, no offender was discovered till these spies were employed. Somebody did those deeds, for they were the work of human hands; butuntil spies were employed; no single act was ever traced to the conviction of its perpetrator. But you are asked why did they not employ wholly men of high character and position, instead of the graduates of State Prison; a wise question truly. I fear gentlemen that even if the Company could have induced the loftiest and best ofour citizenssuch nenfor instance as. Bishop McCoskry or Dr. Duffield, who I see have honored us on this occasion with their presence, to undertake such an office, their exalted characters would have added little to the success of their undertakings. I fear that ere they could win the confidence of these defendants, they would have to serve a long tutelage under the Rev. Mr. Billings, the accomplished guide and preceptor of the unfortunate Hawley. I fear even my respected friend, General Williams. who sits before you) or any other man distinguished for high character and integrity would fare no better. It is idle to talk; the dictate of every rational mind is the best assurance that the class of men employed were of the right character and stamp. IBut aga.in, genllemen mark the extra and abundant caution taken. Altho' the Company had faith in the truthfulness of these men, they resolved to satisfy the public also; they guarded against the possibility of false accusations; no statement from any source-subject even to suspicion was acted upon until abundantly corroborated. The evidence has shown you this; thus when Phelps reported the important fact that Gay had confessed the burning and exhibited a match, Messrs. Van Arman and Clark took pains to assure themselves of the truth of the report, that in due time they might assure you. When the Niles match was to be delivered "honest John Faulkner," as, even the prism oners counsel have called himwas sent, for to be present,that no deception might be practiced. And so throughout all the evidence; altho' it has been again and again rung in your ears that this prosecution rested entirely on the evidence of Phelps, Lake and Wescott, you will find in fact, that every material thing which they prove,is also proved or corroborated by other witnesses against whom no breath of suspicion can be raised. You will remember that the learned counsel, tho' he might well trust to his own eloquence, pressed to his aid the eloquence of others, and cited a long passage from Addison on spies —the context would show you that Addison spoke of those who became spies for a culpable purpose. When the counsel took the trouble of transcribing the passage that he might read it to you from his manuscript,,I regret that he emitted the following sentence which would have rendered the quotation strictly applicable: "As it is absolutely necessary for rulers to make use of other peoples eyes and ears, they should take particular care to do it in such a manner that it may not bear too hard on the person whose life and conversation are inquired into." You will perceive gentlemen that in this case the advice of Addison has been strictly followed. Having thus disposed of matters which, though not strictly in the case, I could not suffer to pass unanswered, I will proceed to a calm 271 investigation of the evidence. I will answer the points taken by coun. sel one by one, and as nearly as possible in the same order in which they were presented. As 1 take them up I will read the testimony bearing upon them. I will endeavor to point out the particulars in which I conceive that testimony has been misrepresented: And I ask you gentlemen to watch closely that I state the testimony fairly and truly —I respectfully request the court to correct me when I erri and shall be pleased and grateful if counsel for defendants will admonish me whenever I read the testimony unfairly or misstate any of their propositions. My sole desire is to ascertain the truth, and en. able you to take a fair, just, impartial and comprehensive view of this ease. You will find as I proceed gentlemen, that I shall not weary you by any elaborate argument —for a statement of each point urged by the defence, and the reading of the testimony bearing upon it, will in most instances be a sufficient answer. The learn'ed counsel has gravely told you that Phelps was the first who ever mentioned the subject of burning-that to burn a depot and charge it upon his friends at the Centre was a proposition by Phelps to Gay, and having laid this unfounded basis, all thro' his address he continues the idea and argues that every scheme charged upon the defendants partakes of the character of this, the first design and hence must have originated in the same brain. This argument falls to the ground if the design was the plan of Gay and not Phelps. Nay morethe argument would remain to piove by their similitude that the others also were the offspring of Gay and his assoA ciates -"his friends at the Centre." To decide between myself and the counsel I refer you to the testimony of Plelps on page 9, where he relates his first interview with Gay. "The conversation was first introduced by speaking of some men who had been arrested for counterfeiting —one Van Sickles and Van -outon, and what would be the best mode of getting Van Sicl;es lib. erated. Gay proposed several modes, and mentioned the burning of one of three or four of the depots of the Central Railroadand stated the mode by which he could be liberated by the burning of a depot. The plot was as follows: Mr. Van Sickles, who was then on bail, for counterfeiting, could be placed in jail-the depot at Ypsilanti, Ann Arbor, or some other one be burned, and on furnishing information of wl o fired it, Van Sickles could get teleased, and they could also doubtless get 81,000 reward from the Railroad Company, for the information, besides getting $200 from his (Gay's) friends for setting the fire. It was suggested that the burning should be laid to Joseph Boyce."' Also to Mr. Clark's testimony, page 12. Heard from Gay his plot of charging the burning of the depot upon Boyce, (as related by Mr. Phelps.) Also, the testimony of Mr. Van Arman on page 12. "Went to Gay's house again the next night, and had a conversation with him-Gay said they could get $1000 for burning the depot at Niles, and divulged his plot for swearing it upon Jo. Boyce, by a man and his wife,^ 272 I think I am safe then gentlemen, in asserting that according to the evidence,the plot was the suggestion of Gay,and not Phelps;and the design of Gay was to charge the burning on Boyce, and not upon "his friends at the Centre." There is much force in the argument of counsel that a similarity of design indicates identity of authorship. We find Hawley testifying as follows in regard to Phelps: "He told me he wanted me to burn a depot in Detroit, and that he would give me a sum, I think $5Q, for doing it; he said the R. R. Co. would offer a large reward, that he and I would swear it upon men who lived on the road and who had their cattle killed or were otherwise injured-that I should have my share of the reward." Here is the Boyce plan slightly varied, and whence does it come; not fiomPhelps —he denied it, and Hawley has in your presence confessed that he swore falsely; that he was suborned to commit deliberate perjury; that he never saw Phelps; that the words I have read were put into his mouth by the Rev. Mr. Billings,the friend, pastor, partizan, and associate of these defendants. Gentlemen, further comment on this point is unnecessary. The'learned counsel alio urged upon you the improbability of Gay confessing his crimes so freely while at the same time he asserted he would place himself in the power of no man. But you will remember gentlemen, altho' I perceive it is not so reported in the published testimony-that the remark of Gay was in answer to a questton by Mr. Van Arman whether when he saw the Prosecuting- Attorney in relation to Boyce, he would inform him that he. knew who burned the depot, and Gay replied, "he was'nt such a d —-d fool as to place himself in any man's power." If this is a true statement of tne testimony,and counsel do not seem disposed to deny it, this point also is answered by reference to the evidence, for however natural it was that Gay should not place himself in the power of the public prosecution, it was equally natural that he should unbosom himself and boast of his offences to those Whom he deemed equally abandoned and criminal with himself. I Mark me gentlemen, I do not charge these misrepresentations as the result of design, as the gentlemen had only four months to compile their extracts, they may be the result of haste; but I do charge that as we proved, we shall find that every point made by the defence is based upon similar accidental perversions of the testimony. Another favorite theory with the defence is, that when first on the stand in May, Phelps did not name the persons whom Gay stated had procured the burning of the depot —that instead of the name he used the phraseology of "the persons." Truly, so he did, but why; because on that day the prosecution stipulated to introduce only evidence respecting Gay, and under it the defendant's counsel objected to the witnesses mentioning the name of any defendant save Gay, and therefore the expression of "the person I," was used. The counsel for defendants has ingeniously argued that as there is no communication shown between Gay and these defendants, that therefore they were strangers and unknown to each other. Let the testimony speak. 273 Phelps tells you on his first examination that Gay informed him that he got the match from hisfriends; and, altho' neither Mr. Van Arman or Phelps were suffered on the first day to mention who those friends were, when Mr. Van Arman was recalled for cross examination the defenceopened the door, and at page 174 he testifies in ielation to the same interview with Gay: "On the last night we were at Gay's he told us he burnt the Depot last fall, and that he was hired to do it by his friends at Michigan Centre; said they would give him $200 for burning the new depot which he said was $50 more than he got for burning the old one. He mentioned the names of Fitch, Filley, Mount, and I think O. D. Williams as among his friends; wished Clark and me to go immediately up to Michigan Centre with him andget acquainted with them. Said his friends at the Centre, had furnished him with the tools to burn the depot. He wanted us to come up next day, and spoke of the plan to burn and lay it to Boyce; said he would see Stuart the next day and see whether Boyce was in jail." Lake alsoat page 164 tells us that Mount said "he knew Gay since he was a child, and had come to this country with him." Does not this testimony answer the objection? will it be said that Gay only pretended to know these defendants when we find him urging Clark and Van Arnman to accompany him immediately to the Centre to be introduced.to them? Will it be said that his connection with them was of an innocent character when the very business on which he wished to'introduce supposed criminals, was connected with breaking jails, burning depots, and passing counterfeit money? The impress of truth is on the narration, it comes to you from the lips of two gentlemen of character and reputation; it shows that Gay for once at least was truthful; that he was since in the confession he made; and that he was linked by no common ties with the men to whom he felt such assurance in intruding with two supposed malefactors. And yet, you are told there is nothing to show that Gay knsw any of these defendants. But you were told so not in connection with the whole, but a selection of the testimony. It is not necessary to refer to the testimony of Phelps in reference to the interviews between Fitch and Gay in February, northat of Wescott in relation to the night visit of Fitch to'Gay's house, to show association;; the testimony of Clark and Van Arman alone establishes anintimacy of no common character between them. You are, however, told to be cautious lest you sacrifice the rights of citizens to the behests of dangerous monopolies. If the warning was heeded, it might be well enough if conveyed in the spirit of moderation, but when coming with malignant fierceness, it was not difficult to perceive that the'energetic bile" of the eminent counsel was permitted to gush forth for none other than sinister purposes. Gentlemen, I respectfully submit that in this country we have little to fear from the power-the "undue influence," or the "bloated wealth" of corporations. It is not with them, or us, here as in the old world. Here, public opinion, public prejudice, and watchful jealousy are so powerful, so wide spread and so vigilant, that no incorporated body would long venture to trifle with, or unnecessarily dare them. The 18* 274 law is so easy of access, its administration so public, and so subject to review, and the spirit of the age so distrustful of aggregated power,. that redress, so open to every citizen, is sure to protect him against undue encroachments, and, in truth, gives him the vantage ground over his apparently stronger antagonist. Again, the stock of these incorporated bodies are owned by large portions of the people themselves, from various parts of the country; are controlled by divers views, and represented by different spirits; are constantly changing hands, by sales and by death, and consequent devise and inheritance; but over and above all, such bodies as the M. C. Railroad Company are essentially dependant on and identified with the good will of the people, and the increase, prosperity, and welfare of the country, and in fact, possess few, if any of the objectionable features of "hated monopolies." They are absolutely necessary. Individual effort would neveraccomplish their great ends, and without them this expansive country of ours, now bound together by iron bonds, with its every wealth and power developing, with its most distant points brought near together, and with its broad surface all over lustrous with glowing prosperity, would have dragged and halted in her bright career. The advance of weeks now, would have required years; distancec would still separate friends and interrupt business. The wide extent of our country, instead of being a blessing, might have proved a curse and cause of separation, for far distance and long absence, great inconveniencs andapparent contrary and distinct interests, would soon chill old associations, and turn the current and spirit of portions of the county to other projects and different views. I submit that the history of such Corporations, their past doings, present deeds, and futuie prospects, in this country, should not lead us to too much distrust. They have done well for the whole country,.. and promise still brighter and broader visions and fruitions for us and for our children. Take New England for an example of the fruits of' hated monopolies.' With an uninviting soil, a eold climate, a rugged and rock strewed land; what has corporation and joint capital done for her — What has it not done! It struck the rock and the living waters of her power, gushed forth; it has trammeled her mountains; dammed her rivers, crowned her with Manufactories; made her days and nights tremulous with the power of her machinery; given labor to the people; dotted her over with churches, colleges and school-houses; covered and clustered her with art, and science, and wealth, and knowledge;. with peace and refinement. power and glory, until her sons in every clime and land, burst forth with proud exclamations at the thought and name of their own New England. And all this can be done for our wider, broader, and more glorious West-if undue distrust, jealousy and preference, are not unnecessarily and wickedly spread among our people. Gentlemen, I cannot but express my regret at the poisoned and dangerous sentiments which have been uttered ih deliberate argument before you. I regret them the more, that they come from so distinguished a source; that they are not the fevered utterance of heated debate, but the studied embodiment of careful thought. 275 Doubtless the speech of the eminent Counsel is to go far and wide through the land, and to attract the admiration of at least his peculiar followers. I take it for granted-I1 sincerely hope, that, ere it ushers forth in print, it will be stripped of some of its destructive spirit and doctrine. What! are we, in this law-abiding and loyal State, to have it thundered in the ears of jurors, in the sanctity of a court-house, and in the course of judicial proceedings, from the lips of any man, that if a verdict is not satisfactory to the people, another " inquisition will be holden, and the victims of the law be dragged from the bloody fingers of power?" Do I overstate it? No-I know you recollect it. I saw and felt, and sympathized with you, in the shudder whicl marked your feelings as that and kindred sentences fell upon your as tonished ears. I forgot I was here, and was carried for a moment to some heated tribune of Paris, where some spirit of fierceness was maddening the populace and stirring up France to again'"Get drunk with blood to vomit crime" Ah! gentlemen, there is a worse evil abroad through this land, than the overshadowing power of Corporations. There are isms of dreadful and fearful import around us. They "menace our public institutions and private rights." There is a spirit of disloyalty to law and country; a tendency to forsake the old landmarks; to treat the lessons of sages which come down from our fathers, as antiquated and worn-out; to speak lightly of our hallowed Union; to abandon those pure, steadfast, and perpetual principles which have sanctifiedour past, and which can alone save our future; and to rear and plant in their stead a "higher law," which, each one for himself, may adjudge and administer. Hence-come, those frightful dangers which disturb our courts; that voice of evil omen which would fain chaunt the hymn of ruin over the broken fragments of our capitol; which would raise the arm of private judgment against the enactments of the law-makers; and rouse an excited populace to sit in judgment on the decisions of courts and the verdicts of juries. Gentlemen, it is an evil day, when the men of our.high places are found scattering such seed in congenial soil. Where, if such is to be the course of things, are we to stop? There would be an end of law,and confusion and ruin would stalk with fearful strides over our land. We enforce not the law here by the bayonet. It is the law of the people, administered by forms prescribed; and the beautiful sight is exhibited of the people of a whole empire bowing in silent respect and cheerful obedience to the adjudications of their own courts and the verdicts of their own juries. And well may we doso. For what would we be without that law and cheerful obedience to itt What and where would we be if a community, or any portion of it, could or dare rise up, in violence or lawlessness, and crush or disturb the solemn awards of legal tribunals? What and how shall we characterize the spirit which would invite us to such a dread feast Gentlemen, all you possess on earth, is the reward of laborpro teeted bylaw. It is law alone which keeps all things in order-guards 276 ~te sleep of infancy, the energy of manhood, and the weakness of ge.: It hovers over us by day; it keeps watch and ward over the clambers of the night; it goes with us over the land, and guides and guards us through the trackless paths of the mighty waters. The high and the low, each are within its view, and beneath its ample folds. It protects beauty and virtue, punishes crime and wickedness, and vindicates right. Honor and life, and liberty and property, the wide world over, are its high objects. Stern, yet kind-pure, yet pitying-steadfast, immutable and just; it is the attribute of God,n earth. It proceeds from his bosom, and encircles the world with its care and power and blessings. All honor and praise to those who administer it in purity, and who reverence its high behests. When our own respected, eloquent, and classic citizen Senator, "was desired to choose a motto and design for the coat of arms of that,State, with which he is so identified, and by it so appreciated, most happy was he in that choice. We find it stamped, and reading, when rendered, thus: "If you seek a beautiful peninsula, look around go.."' And we see, as part of the design, the sun of civilization rising from the waters, and commerce and agriculture quickening into life beneath its genial rays. And the lone Indian is there too, standing in sadness, seeing the elements advancing and gathering which tell him the doom of his race, and before which he must again retreat to roam the western wilds. And a beautiful peninsula it is! Its shores bathed and almost circled by the majestic lakes which now are convulsed with storm, and anon flash back the serene light of heaven, as if from a million of mirrors. Its prairies blooming with beauty, and uttering sweet whisperings to the light wind as it breathes among its flowers. Its fields yellow with luxuriant harvests. Its youth cultivated. Its people moral, contented and happy. And all reposing beneath the reign of law and order. But change the scene! Let law be disregarded, and her ministers brought to contempt-let confusion and disobedience characterize her people, and the clouds of darkness and disgrace will soon gather over our land. Frantic passion will produce ruthless violence; bad men will revel and rejoice; the good will sigh and depart. Better, than that this should come to pass, would it be that the forest and primeval silence should return again. But it is useless to anticipate such evil things. Such invocations to our people, fall on Vnwelcoming ears. They may suit some foreign district, some land'where anti-rent and anti-law make part of her history; but cannot and will not corrupt the law-loving and law-respecting people of Micehigan. He who expects to read on the columns of her greatness, words of disloyalty to the Union or disrespect to law, may seek for.them in vain, until he himself sinks into the abyss of time. I regret, gentlemen,, to have thus to leave the strict merits of the ease, to follow and comment on the extraneous, and to my judgment ~most dangerous, remarks of counsel; and will aow return to what is aore in point. We are told, gentlemen, that this is not an indictment for conspiracy. There was little need to argue that point, as the prosecution 277 have never asserted or pretended it was. The indictment is for arson, and the defendants now on trial are charged as accessories before the fact. The charge is simply this: that Gay burned the depot, and these defendants induced and procured him to do it. But although not an indictment for conspiracy, it is for a crime resultingfrom conspiracy among the defendants; and wherever combination exists, the law relating to conspiracy is applicable, although the charge is not one of mere conspiracy. It has been so held in many cases. But I will trespass on your time only by reading one. [Here counsel read and commented on the case, The Commonwealth ar. Crowninshield, t0 Pick. 497.] And, gentlemen, notwithstanding all the arguments and assertion of counsel, it is the law, that wherever combination exists, it is cormpetent to give in evidence, not only the acts done, but also the words spoken by those who belong to the conspiracy, and which sare within the scope of the combination. In the case of the Queen vs. Murphey, 34 English C. L. R. p. 6B 600 Justice Coleridge uses the following language: "There are two general observations which I ought to make. Thee first observation is, that from the nature of this charge the evidence must necessarily grow up as the case proceeds. The acts of the one party must be given in evidence, and then the acts of the other, and it may then be shown that those acts fully prove a conspiracy between them. The other observation is, that my brother Bompas (quere Gov. Seward,) confounds what is evidence to be heard, with what is evidence to convict..It has been opened that. these two defendants instigated a general resistance to the churchrates and that they published handbills on the 26th and 27th of October, and this was on the evening of the 27th; these handbills too, were calculated to cause that which took place and added to this we, find that when the party is brought before the Magistrate one of the defendants assisted him in his defence and the other became his bail I cannot say that there is no evidence, that this act was instigated by the defendants." Such'acts and declarations being in evidence you are bound ta consider them. You may deem them insufficient to convict on, but you cannot disgard them, you must allow them such weight as your best judgment dictates. And so we respectfully ask the court to. charge you. In this case the obstructions and other acts of aggression cornmitted in Leoni, when taken in connection with the language used on all occasions by defendants, must have no slight influence on your minds; they must go far to point out these defendants as the nistigators of the particular crime charged in the indictment. Let me give you an illustration. If these persons stood charged with the burning of this building; if it was proven that they had repeatedly threatened to destroy the property of its owner; that they had combined together to do him afl the injury in their power; to assault him; to destroy his business; to steal his property, and failing in that, to burn his house, and the building is thereafter in fact. 278 fired, will not a suspicion amounting almost to the certainty of guilt fasten upon those who have thus threatened and conspired? will not the mind inquire who so likely to do it? And how much stronger is the case before you where we find these defendants constantly assembling; breathing forth vengeance against this company; threatening to destroy its property; to obstruct its engines; tomurder not oonly its employees but even unknown and innocent travellers who dare to patronize it; and as a last resort to burn its depots. Wheni we find them for the space of two years, constantly acting under the spur of their diabolical hatred, and as I shall hereafter show you with community of action and design, carrying their vile threats into execution. You will readily perceive gentlemen, how important it was to the prosecution to provethe obstructions and other acts of aggression'committed by these defendants, in and about Leoni, and that they were the result of a combination between them. The defence has felt the weight and importance of this proof, and a strenuous effort has been made to convince you that there is no proof of a combination. It seems conceded in argument that some of these defendants committed some of these acts, but the counsel says each act was done on the impulse of the moment: was the individual act of the person doing it, and there was no concert, no agreement, no combination. Now the prosecution contends; that these acts were done by the defendants under a general combination and understanding amongst heam to injure this road in every way, and to the greatest extent in their power. This is an important branch of this case, and before entering on a detail of the evidence, I beg to read to you a few authorities showing how combination may be proved. Starkie on evidence, vol. 2 No. 232 & 2-33, says: "A convict may be proved by evidence of a concurrence of the acts of the defendant with those of the others convicted together by a correspondence in point of them, and in their manifest adaptation to effect the same object; such evidence is moee or less strong according to the average publicity or privacy of the object of concurrence; and'according to the greater or less degree of similarity in the means and measures adopted by the parties, the more secret the nae and the greater the coincidence in the other, the stronger is the evidence of the conspiracy." "Where several combine together for the same illegal purpose each is the agent of all the rest, and any act done by one in furtherence of the unlawful design, is, in consideration of law the act of all. Thus you perceive, gentlemen, that if we find a similarity of action and a similarity of expressed motive in the purpetrators of these outrages; if we find that each act tended to accomplish the same object, that all, or nearly all these defendants were identified with these acts'of aggression; that they were conversed of freely amongst them, and that the perpetrators of each act sought the first A.casion to communicate their exploit to the rest of the defendants; 279;the first of combinatien will be established beyond all dispute, to the full extent of all that can be embraced within its scope. In citing testimony, I'will refer to the. printed report and I invite you and the counsel to follow me and at once correct me if I color or misrepresent it. I will also point out as I pass along, where and how'the evidence has been misrepresented or suppressed by the learned counsel on the other side. The counsel who preceded me, mentioned eleven assaults and menaces against the road, claiming that with not one of them was even one single defendant identified; and seventeen overt acts with none of which, he claimed, was any defendant identified, save Filley, Williams, and the two Prices. I will take up these twenty eight assaults and overt acts in the same order in which they were presented by him, and see if the testimony he has read, that which he has not read, will not lead us to a very different result; and then I will add to the list some ten or ai dozen acts of aggression which in his hurry he omitted. He also' claimed that even in the few instances where Filley, Williams and the Prices were identified, the acts resulted from impulse, were individual; and that there was no evidence' of concort or combination. 1. The cars were stoned. Proved by Holmes, none of the defend-;ants identified. 2. In June'49 the cars were stoned-one stone fell near a lady,:another struck a gentleman on the breast and hurt him severely. Proved'by Levi Easter. 3. Stones on another occasion were thrown by eight or ten persone from some bushes, at the cars. Proved by Caster. The prosecution concedes that there is no evidence to directly identify any ofthe defendants with either these three acts, but here I must myke my first complaint against the candor of counsel inasmuch as he has altogether omitted the following important portion of Carters testimony found on page 76: "Have several times been obliged to stop and remove obstructions in that vicinity during the past two years; was baggage man on passenger train in'48. For a long time were obliged to run a hand car ahead of the passenger train, and have three times got off in one night to remove obstructions, such as rails, old ties, strap iron, &c; the passenger train had to run very slow; this was between Grass Lake and Jackson; during'49 have known the track to be obstructed as often as a dozen times." This is certainly proof of other obstructions no where named in the counsels list. Wescott speaking of Fitch at page 80, says: " In march 1850, he told me what had been done in'49; said the boys placed obstructions on the track; the way they did it was by being secreted in the timbered land between the Centre and Jackson; after the hand car passed they would rush out and place things on the track, before the passenger train come up; also said they would place pieces of strap iron between the joints of the T. rail and cover them with bushes and branches of catnip." Charles Rogers, at pages 116 & 117, says of Filley: I work 280 ed for Filley and Fitch in harvest'49; near Filley's house on the, road heard him speak of throwing the cars off; it was in fall of'49; they were running a hand car ahead of the train; said a stick of timber could be placed on the culvert so as to lean off the track while the hand car passed, but by means of a rope attached to the. lower end, a person at a distance could pull it so as to bring the timber in connection with the train." and of Fitch he says: "Heard him speaking of a grand invention for throwing the cars off;, either said there had been or might be a machine by which the cars could be thrown off, and the machine saved for another time: said in the noise and confusion of the cars being thrown off, the machine could be taken away." I think gentlemen, the testimony of these four witnesses, shows conclusively, that, in'49, the cars were frequently obstructed, and that Fitch and Filley, if not others of defendants, were either the actual aggressors or the instigators-not acting from impulse either, but deliberately devising subtle means to frustrate the protection afforded by running hand cars. From Rogers we learn they devised the means. From Carter that their object was accomplished; and from Wescott, that Fitch confessed his participations. 4. The cars were stoned. John H. Dexter at page 100 says: The night previous to the suit, the cars were stoned. I had just gone to bed and heard the glass jingle; went down and told Filley somebody had thrown glass into the parlor window; he said he guessed not; went and looked but found no glass broken; it was while the cars were passing; found Fitch, Filley and two or three others out of doors. The Price boys were about before I went to bed.'I afterwards saw glass on the railroad track, six or eight rods from where they stood; afterwards, saw two piles of stones in Filley's orchard, about the right size to throw." So much of the testimony, the counsel read and claimed: no defendant was implicated; he overlooked the following evidence of H. C. Dexter, on page 106. "I was at Filley's the night the cars were stoned. I was standing near and heard a stone hit the cars; Price, Corwin, Eitch and Filley were there; saw Filley have a bottle in his hand, and swinging it as the cars passed, at the time the glass windows in the cars jingled from stones thrown. It was a passenger train going west." This last testimony was too much for the counsel; he was afraid of the bottle and wisely omitted it, but now that you have it, gentlemen, how will you avoid the conclusion, that Filley, who swung the bottle and those who stood beside him and who, in other portions of the testimony are found threatening to do such deeds, were the perpetrators of this overt act. You perceive gentlemen, how important it is to have the entire testimony as to each act. 5. Three stonings of the cars which are afterwards mentioned in the testimony of Woliver-proved by Clark. Here also, the counsel omitted to state that Wm. Clark proved he met many obstructions. in'49, generally between Fitch's and Filley's-that they had to-run 281 hand cars there, but always thonght themselves safe when they passed Leoni, and so it is through the entire case: witness after witness fixes the conviction in our minds that every act of aggression originated amid the peaceful hamlets of Leoni. 6. Menaces by unknown persons, proved by Cochran and Sher. man-tis true these men are not identified, but they come from Filley's-however, we do not claim there is any identification, so I pass to No. 7. Five shots fired at the engine house, proved by Clark. I pass this for the present, but will, when I reach No. 27, show you that many of the defendants are identified with it. 8. A slight obstruction which was carried off by the broom. With this we claim no identification. 9. Wescott, at page 88, says: "I heard Fitch say when a mail car was burnt up, that the Co. lost $12,000, and a woman lost $4,000; Filley said the Co. after getting a few more such slaps would begin to think there was a God in Israel." There is something in the form of expression used that indicates knowledge, but I have a long list to go through, and will concede that, even in this case, there is no proof against defendants. 10. Caswell proves a hand car was broken and that Filley said "the man who broke itknew who did it, he probably lives nearest to it." You will remember that it is in proof that Filley lived nearest, and had before threatened that the hand car should be broken' every night. Evidence, gentlemen, which comes very close upon direct proof, though we do not claim any identified with it, save Filley. I1. Smith and Marsh prove the placing of a piece of flat iron on the track by defendant Tyrrell. We concede there is no direct proof implicating any other defendant with this act, but I must dissent from the proposition that this was a harmless act, that could work no injury. If the learned counsel lived in our state; and was in the habit of riding over the road, he would be far from regarding the placing of pieces of iron on the track as an innocent amusement. 12. Knox and Van Valen proved some acts of Doctor Farnham's near Marshall; there can be no doubt of the truthfulness of these witnesses, but the acts seem so foolish that there is fair reason to question if the witnesses may not have been mistaken as to the real character of the transaction. 13. The testimony relating to this overt act was thus given to you by the learned counsel from his abstract: "The prosecution dwell upon the burning of a culvert, east of Filley's house, in June,'51, proved by W. B. Stanton. He says that he was at Filley's, "that Mrs. Filley came in and gave the alarm that the culvert was on fire. Stanton and Fitch went up to see it. Stanton proposed to get water and put out the fire. Fitch, with his usual smile, (for he was always pleasant to me,) answered,'you will have to go out of this town to find anybody to put it out.'" I must ask you to compare this with the true testimony on page: 99. True, there is not much difference in words, but it is an apt illustra 282 lion oftheuse the learned counsel can make of a smile properly. placed. The counsel passes this point lightly; the testimony seems scarce worth his notice. It was but a smiling allusion, by Fitch, to the tone of public feeling. Do you think so, gentlemen? How -came Mr. Fitch to be so well assured of the sentiments of his neighbors, these defendants? One of the most essential ingredients of combination is mutual understanding, and we find it fully developed'here. Fitch can speak, not only for himself, but for all Leoni. This was no trivial affair. Even though Fitch's lips were wreathed with his "usual smile," this was no smiling matter. Ittwas a daring outrage, and were it not for the warning given to Spaulding by Stanton, it would have been a fearful and calamitous one. Yet, knowing that the train was rushing on with hot speed, and hundreds of unsuspecting passengers-knowing that if it came unwarned a fearful destruction of property and life must ensue, Mr. Fitch not only would not help himself, but he could smilingly speak with cer-.tainty for his friends and neighbors that they too would decline. How far removed from a murderer is the man who, by the lifting of his arm, can save the lives of hundreds, yet "looks calmly on, smiles and sees them perish! " Here the counsel, who last addressed you, took occasion, en passant, to quietly state that it was very clear that Phelps and Lake made this burning the basis of a perjury, but are detected, as by mistake they fix the burning in February,)'51, when it occurred in June'50'. The argument is perfect, but the facts are assumed. There were two culverts burned. Phelps and Lake spoke of a culvert burned in'51, Stanton of one burned in'49, and there is not a particle of proof to indicate that they meant to refer to the same transaction. 14. The testimony of the two Dexters who prove a wood pile was burned near the Centre,that shortly before the alarm they heard a person come in barefooted and pass stealthily towards Filley's room; that Filley would not gn to the fire as he feared spies would see him; and of Hudson who found two foot prints near the fire, one of which he thinks was Filley's, and who says that when he accused Filley of the deed, instead of denying it he replied, "there should be no fence built till they settled for his lands"-bring this act so home, that counsel concedes Filly may have done it, but claims it was his own solitary act. He forgets, I believe he did not state to you, that Hudson found the foot prints of two persons-so that it was not the act of Filley alone-he had some accomplice. 15 Woliver proves that he and Corwin took a spindle from Fitch's and placed it in the frog to run off the train, and that the next morning Fitch said, "you must not take anything from my house or they will suspect me. Take anything else you can find, but nothing from my-house." Counsel claims that no person was identified with this but Corwin; that Fitch had no part in it, no knowledge of it, till after it was done. You will not fail to ask if Fitoh's language was that of encouragement or reproof? and whether the immediate information possessed by Fitch does not evidence a general understanding to commit and encourage depredations? 16Clark proves thatin October 1850,the engine Rocket was thrown 283 off. Sherman proved that in speaking of it, Corwin said, " we did it." Yet counsel claims this was the sole act of Corwin; it is true there is no explanation given of who was meant by "we," but it meant some persons. Corwin had some accomplices-who were they? Who were his constant associates? Who day after day joined him' in threats against this road and pledged themselves to like unholy deeds? The counsel overlooked the testimony of Purcill on pages 123 and4: "I was at the Centre when the locomotive Rocket was run off last of August or 1st of September, about 9 P. M.; saw Gorwin there with two others; twenty or twenty five minutes before the train came along; Corwin said they had been to a husking bee; but did not think he should go again in the open field; it was a pretty cold night; they asked Filley to treat, which he did, a short' time after Grant came in and said the passenger train had run off on the east switch. Holden, who was with me, said let's go to the train and they commenced talking privately together; this was in Filley's bar-room; they were talking privately when Grant came in. In reply to Holden, they said they would be along soon; but they did not come; we went back and found them at Filley's." It is conceded Corwin did it, and we find him and his accomplices rushing straight from their work to Filley's to be treated and to have a private; talk. There is no crime in treating, no crime in speaking privately; but can you, in the face of this testimony, come to any conclusion but that Corwin and the others did the deed, and that Filley was privy to it? Why did not these men go down to the engine with Holden and Stanton? If innocent, was it not natural they should do so? Gentlemen, the murderer shrinks from the presence of his cold and lifeless victim, and these men, not yet informed of the consequences of their fearful deed, might well turn from the spot that, for ought they knew, was steeped with blood, that cried out to heaven for vengeance against them. 17. An attempt to detach freight trains, and stonethe conductors, proved by Carter and Sherman. Corwin is the only defendant who made the attempt,butby referring to the testimony of Woliver,on page 55, you will find that other outrages was contemplated, that night, and were abandoned because of the presence of two strangers at the tavern, supposed to be spies, that a number of defendants were round the tavern, that night and that Filley and Champlin in particular were active in learning whether these strangers were spies,a clear indication that they at least were privy to the intended operations-else why should they interest themselves as to the spies? If they were privy to any baffled design they are accountable for any substituted one, having the same object. 18. Woliver proves that in September'50 he and Filley turned a rail near the dry marsh. The learned counsel read you the testimony of Woliver, and no more and complacently assured you that there was no evidence of concert-like all the rest it was an individual unpremeditated act-no concert-no privity with others. I will read some other portions of testimony to you. By referring to the testimony of Brown, page 79 and 80-you will find that he saw con 284 cealed under Filley's barn, tools for tearing up the track: that Fil]ey once told him he had such tools-and that subsequently he found the same, or exactly similar ones, concealed under Filley's fence near the marsh (the place where this outrage was committed.) On page 55, you will find that when Corwin wanted Sherman to turn a switch, he said, "he would go and see Filley and find where the iron bars were for the operation." And at page 57 you find E. Price saying "he had made a couple of bars to take up the track." Yet the eminent counsel tells you there is no proof of concert no common design. Truly gentlemen, if the most important portion of the testimony is to be suppressed, we may seek in vain for evidence of combination, but read the entire-read it fairly; and you find " combination" stamped on every page. Is there not combination and preconcert here! Price made the tools —Filley had possession of them; but they were common property; when Corwin or any other accomplice needed them, he had but to ask and they were given. But each act you are told, is the result of the impulse of the moment. Tools are prepared-plans are laid months before hand, that all may be ready when a favorable moment presents itself; and because the hour, and day, and moment of opportunity cannot be foretold, but are promptly seized on when they come, there is no forethought, no preconcert. No concert-when we find men doing the same deedsusing the same tools, breathing the same threats, and aiming at the same end! I have read you the law on this point and you will not be imposed on by sophistry. 19. The counsel tells you, Woliver proves he and Filley placed a tie in the culvert, so it broke the lamp; that Fitch speaking of it next day, said he had gone up and while the engineers were engaged revised the breaks, and that it otherwise appears Fitch got home about the time the accident happened; and as usual says this was the sole act of Filley-no one else privy. Allow me gent'emen to read you the balance of the testimony on this point, not read by counsel; there are more privies than the counsel mentioned, and the proof does not rest on Woliver alone, though I will show you hereafter that he is worthy of trust and credit. Dixson page 72 says: "Heard Fitch say he went up to where the cars stopped; think he said he and Lemn went up, but am not positive; he said Lemn had said he took a large jack-knife with him, and slipped it up into his coat sleeve, as he did not know but he might have occasion to use it; the obstruction was old ties." At page 82 Wescott says of Fitch: "He said they had a'fuss, the night before, near his house; an engine was obstructed, and said they laid it to me, and said' d-n'em, they laid it to me, but I told them I did not get home;' we walked up to the spot, and he explained how the timbers were placed, to break the lamp, which he said must have cost $100. Before I saw Fitch, Hay told me of the accident; heard that Lemn came home with Filley, and staid with him." "Williams has also told me that Fitch put on the brakes, and laughed at it as a joke." 285 Wells' at page 60 says: "Another time heard Fitch, Filley and Eb. Price talk of a plan to place a rail in the track to strike the lamp; a few days afterwards heard Fitch say such a thing had happened toward Leoni; this was after he suggested the plan." John H. Dexter page 100 says: "Heard Corwin, Fitch and Filley speak of obstructions on the track west of Fitch's; they said it was a pity the engine did not run off and smash the whole train. One of them, I forget which, said the stick was pointed, and placed so as to break the lamp." Yet you are told with very assumption of candor, that this was the sole act of Filley,-there was no forethought-no concert-yet we find no less than five of the defendants privy to it, and three of them devising the modus operandi, long before-hand. How chanced it that all this important testimony was omitted by the counsel who assumed to give the entire? 20, 21, 22 and 23. Are the four cases of stoneing the cars testified to by Woliver. He states the first was was done by himself, Price, Champlin and Davis; the 2d and 3d by himself, two Prices and Corwin; and the last by himself, Filley, Corwin and Williams. The testimony on this point was fairly enough presented, save that counsel omitted to state that Sutton on page 108, heard Barrett speak with Woliver about the cars being stoned by him Woliver. But the counsel with a solemn countenance, claimed that there was no evidence of concert-that each act was the individual act of those doing it. How absurd-whenever these men meet on business or pleasure, whenever opportunity offers, they stone the cars; they are always ready-no inducement is necessary; all of them who chance to be present join in the act-yet because they do not meet, resolve, seperate, and agree to meet again before doing it, there is no concert! 24. The engine Goliah was thrown off the track at Leoni. Sherman proves Corwin said " they did it;" and Bingham page 108 proves that he that night was passed by Corwin and Williams in a buggy, speaking of the cars and fearing that " would be too late;" they were going towards where the accident happened, and before it happened that he recognized their voices, that Corwin spoke in afeigned voice. There can be no doubt from this testimony, but that Williams was one of the persons comprised in those mentioned by Corwin to Sherman. 25. A wood pile was burned near the Centre. The testimony as to this act has been fairly stated to you. It is briefly this:-you will find it on page thirty-On the way from Jackson, Corwin proposed to burn the wood; when they got to the Centre Price agreed to go with them; they stopped at Filley's; they said they were going fishing; Filley gave them an axe; Price said he hadn't the first d —d thing to fight with in case of trouble; Filley gave him a knife; wished them luck,and told them where they could get whiskey on their return. Although Corwin, Price and Woliver were the ones who burned the wood, from this testimony, gentlemen, you can have little doubt in concluding that Filley was cognizant of their designs. He knew they anticipated a fight and trouble. Neither can you 286 have much trouble in disposing of the sophistry which termed it an.impulsive act: for Corwin meditated on it all the way from Jackson;: and Price, unless his mind was already prepared, would not so read-. ily have entered on a deed that, in case of detection, would expose him to fearful punishment. 26. The Gazelle was thrown off. Woliver proves that it was done by himself, Filley and the two Prices. This overt act was the subject of along discussion; the counsel contended that only three of defendants are in any way identified. As the prosecution are of a; very different opinion, and regard the testimony bearing on it as pregnant with evidence of combination, I must refer you again, and fully to it. The witness Taylor proves he found under the culvert, when the accident occured, a paper produced in the following words: "Michigan Centre, Aug. 19, 1850. MR. PRicE,-Sir:-I want you to be at the mild stake, this side Leoni, on Monday night, at about half past 9 o'clock. We intend to run the cars somewheare's about there; be sure and be there at the time. By order of the Committee, W. CHAMPLAIN." The learned counsel has told you, this was read upon the witness Holmes expressing an opinion that it was in Champlin's hand, but that on being recalled, Holmes retracted that opinion-said he thought it was not the writing of Champlin, but thought it more resembled the hand writing of Taylor. I read to you, gentlemen. from the re-examination of Holmes, and you will see whether he does retract his first opinion: "The W. is not in the form generally made by Champlin: also I have never seen his signature other than Wm. W. Champlin: also he generally spells his name Cham-plin, and the signature to this letter is Cham-plain. I have an account in my possession in the, hand writing of Mr. Taylor. Saw Taylor once write in a book: think I know his writing, and that it has more marks of his hand; than of Champlin's. Cross-ex'd. I spoke of this matter with Frink at the R. R. hotel. Was brought in to be a witness by defendants. Also spoke with Champlin himself, and he said it was not his hand writing; this was about two weeks ago. May have talked with Higby about it, think I did: at Michigan Centre learned he did not make his signature in that way, by seeing some of his writing: he also told me since I was sworn that he did not spell his name in that way: the old man also showed me his copy book where it is spelled different. Still think the form of the letters are the same as his hand writing, and still it would strike me as his hand. Never saw Taylor write.but once; then he wrote a number of names of those who were boarding with me. Don't say it is Taylor's hand; the W. is formed like Taylor's, but the other letters are not." Thss, gentlemen, is called retracting his evidence, and it is with a vengeance. It amounts simply to this, after undergoing a severe tutelage with professors Frink, Higby, and Champlin, the witness 287 persuaded himself that the " W" differed some from the usual' " W' of Champlin; but all the tutelage cannot prevent him still saying, "it would still strike me as his hand." "Don't say it is Taylor's hand." Tolerable strong proof, gentlemen, from a tutored and unwilling witness. I will not refer to the other witnesses on this point, as the counsel himself seemed to value their evidence as little worth. Wescott you will remember, proves that Fitch, speaking ofthisa ct, said, "the Gazelle got dry and ran down to the marsh for a drink." Act. page 83 and 84. Wescott further says: "A. M. Sackrider brought up a load, nearly all strangers to me; that day heard conversation between Williams and Filley; W. asked F. for money, and F. replied, "I thought that this Gazelle matter was all settled; " W. replied he thought there was something due him yet; Filley said to him, Fitch had paid him $10, and he (Filley). had paid him $12, and wanted to know how much more he claimed in the Gazelle matter. VW. said he would leave it to Filley, and F. asked him if $3 would be enough; he said he supposed it would; at this time Sackrider called them into get drink, they were in the yard and I was around the corner of the house six or eight feet from them when I heard the conversation; I went into the bar-room then andsat down; they came in, and Filley asked me to chance a five dollar bill, which I did, and he gave Williams three dollars. Mr. Sackrider, on page 99, says: "' saw Filley hand Williams a bill which he told him was a three dollar bill; just.before that I saw them out doors talking; at the same time I saw Wescott standing very still around the corner, about six feet from them; I called Filley in for something to drink; said he would be in soon, Wescott came in and set down; about five minutes after 1 called Filley again, and he and Williams came in; Filley asked me to change a five dollar bill; I told him I was "dead broke;" he then asked Wescott, and he changed the bill for him, and Filley handed Williams $3, and asked him if that would make it straight." Wells also testifies to the payment of the:$3. Stronger corroboration could not well be conceived. And how is it sought to be got rid of? Not by the testimony of Crowell who gave such an improbable version of the occurrence, the counsel wisely abstained from all allusion to him-although there was no doubt that the $3 was the amount paid, Crowell forgot the figure, and whilehe heard the accounts settled, and the items borrowed money, &c., specified, he was sure the ballance to be paid was $'2. But the counsel says the prosecution witnesses all disagree. I deem that these very differences inherent evidence of truth. I will read them to you. Phelps, at page 128, narrating a conversation between himself, Williams, Price, Freeland, and Corwin, says: Williams-said you know I was the means of throwing off the cars west of Leoni, though I was at home and abed, and we can lay it on to Laycock and swear it on to him." You will remember that this was not addressed to Phelps, but to 288 others who were fully familiar with the entire occurrence. To them itwould be quite intelligible, though to others involved and obscure. When Lake testifies, he says, at page 161. "Williams said Corwin, Filley, Woliver, and two Prices were down there; and he furnished them with a bar to go and tear up the track, and he went home and went. to bed, so he could be a witness for them if necessary, and swear that they were all at his house." Here you will remember that Williams was explaining to Lake, who till then was ignorant. How natural the variation How like truth! A hint did for the others, but to merely say he " was abed" would explain little to a stranger; he had to tell why he was abed. The learned counsel omitted the testimony of Mr. Henry, who says, p. 98. " Heard Williams speak of the switch being turned, but said they could not lay it to him as he was abed." Why should Williams expect they would lay it to him? Gentlemen, " a guilty conscience needs no accuser; " and how ready the defence of this self accused sprung to his lip-he was abed. He had laid his plans, he was prepared for them there; he knew he could prove it. But the counsel says the witnesses implicate different def'ts. What of that? We do not assume that any one witness knows all-different portions come from different sources, and so coming and agreeing, they are the more entitled to credence. If, as the defence assumes, this was a got up story, the witnesses would agree in every material point; they would implicate the same men; their not doing so is evidence of the absence of collusion and helps to establish, what we firmly believe, that almost every def't was cognizant of and implicated in every aggression. 27. This, the last act referred to by the eminent counsel, relates to Fitch giving pistols to Wells, Laycock and Casswell, to shoot at the engine house. I will not follow the learned gentleman through the ingenious sophistry by which he sought to get rid of this fatal piece of testimony. Here, as in other instances, you will find that there is in the pages in your hands, strong, direct and corroborative testimony; proving not only that Fitch did give the pistols that night, but that shooting at engineers was an old, long pursued, and favorite pastime to many of these defendants. / Caswell and Wells prove that Fitch gave them pistols to shoot at the engine house. D. J. Holden, p. 172, says: " Heard the report that Fitch had hired some one to burn the depot in Detroit, and that he handed certain pistols out of the window to Wells or Laycock, to shoot the cars; asked him about it; he told me he did hand the pistols out of the window to them, mentioning either Wells or Laycock, or both, but either said they were not loaded or that they were only loaded with powder, and that he handed them out for them to fire at the cars merely, to frighten the engineer and alarm the road." Can anything be more direct and positive than this? A plain, positive admission of all that is material in this cause for the point is 289 not now to prove intent to murder, but to show that shots were fired with intent to so alarm engineers and frighten passengers, that this company, would be compelled to abandon its business. Again, B. Culver and Mrs. Hargrave prove that Laycock admitted to the same effect. Mr. Huntington, a witness omitted by the counsel, p. 78, says:, I know Minor Laycock; heard him say he went to Fitch and asked for guns, and Fitch asked him what he wanted of them; he told him he wanted to shoot the cars. I told him I thought he would get into trouble, and he said there was no danger as there was no shooting that time, but said there was afterwards." Does the testimony of Wells or Caswell go farther than this? Not so far, for here we have it by a witness of high character, that, although, the design of shooting at the cars was not carried out that night, it was subsequently. Again, Mr. English, another witness overlooked by the counsel, says, at p. 121: 1 Iknow Fitch; worked for him in 1849; one day, at his house, he said he had laid a plan to fix the road, so that the company would not be able to hire an engineer within one year from that time to run the road; asked him why; he said because they would beafraid of their lives; he also said, " If they knew when Brooks was coming over the road, he never would be able to get through to the end of the rout." You perceive, gentlemen, this shooting at engineers was not the impulse of a moment in 1850; it was an old and well matured plan. Again, Mr. Henry, another witness overlooked by the counsel, at p. 98, says: "I remember whenguns were fired at the cars in 1849; I heard the cars pass, and heard the guns in the direction of the cars; there were four or six reports; think it was in the last of May or first of June 1849, 9 or 10 P. M.; I saw Corwin next morning and talked about the firing of the guns; asked him if they were firing at the train last night, and he said, "yes, I suppose so; " 1 asked him if anybody was killed, and he answered "no;" I said bye and bye they will kill somebody; he replied, d-n'em if they don't want to be shot let'em pay for the cattle they have killed; I told him that was a bad idea, and they would kill innocent people who paid their money for riding over the road; he said' d-n'em they need not ride over the road if they don't want to be killed.'" Thus you see, that even in'49, Fitch was not the only one who was identified with this practice of shooting at Engineers. How readily Corwin knew that the shots were fired at the cars, and how freely the threat of killing and shooting flowed from his lips! What,difference does it make then, whether Wells is true or false? He is true in this at least, for all he proves, and more too, is proven by witnesses against whom counsel dare not hazard a breath of suspicion. Counsel has dwelt much upon the testimony of Amanda Fitch. The counsel feels no more kindly to her than I do. I would not hurt that child for a thousand worlds. I sincerely wish she may 1 9 290 never have to fill a witness' box again; and hope, the present cloud passsing from her young brow, her future may be one of cloudless brightness. But what is her testimony, gentlemen? It is the strongest corroboration of the evidence adduced by the prosecution. She says that Wells and Lacock came to the window; asked Fitch for his pistols, and also for some paper: that Fitch gave them, without asking what they were for, or uttering a single word. A tale, gentlemen, the truth, of which I need not question; as it is utterly inconsistent with any other hypothesis, than that there was pre-arrangement between the parties to come there for the pistols. If the prosecution had known that she would give such testimony, the unpleasantness of obliging her to testify against her friends, could scarce have excused them from placing her on the stand. I do not now stop to answer the charges of perjury, made' against Wells: they are easily answered; but why do it, when he is only one among the many who prove this fatal point? You will remember these pistols were favorite dragoon pistols of Fitch; that Amanda says he never loaned them before; and yet, that he loaned them to a rude boy, in the dark of the evening, without a single word of enquiry! I have now, gentlemen, gone through with each act mentioned in the list which purported to give all that were in proof; and you cannot fail to perceive what an entirely different character they assume, and how many more are identified with them, when the entire testimony is read, and read from the full report, instead of carefully prepared abstracts. I will now proceed to add to the list some ten others, important ones, too, which have escaped the attention of counsel, or at least have not been placed in this connection, where alone they can have their just force and strength. 28.-Mr. Spaulding, p. 67, says: "I remember the time when the locomotive "Dexter" was run off east of Mich. Centre, on the dry marsh, some eighty rods east of the Centre; it was in June, 1849; myself, Otis Kingsbury, and J. M. Hewitt were on the locomotive; it was drawing a train of racks, loaded with R. R. timber, going west, in the P. M.; we were running on the passenger trains time. After we got to Leoni, we run very slow for a while, and then increased the speed to get out of the way of the passenger train which was expected; I discovered a stick of timber ahead, but could not stop the train; we struck the obstruction, and it was cut in two, and did not throw off the train; I stopped the train after running some forty rods, the other two men jumped off before we struck the timber.." The witness goes on to state, that when the engine was stopped, Fitch, Filley, and some others came up. I will not detain you by reading the entire of this evidence, as it is lengthy, but ask your attention to the following portions: "Fitch said, " Spaulding, what's the trouble?" I think I told him some d d hyena had put a timber on the track, but we had not run over it. Fitch said "Spaulding,. by God, the Company never can run this road in safety, until they come out and pay us our price for killing cattle and damages done to other pr6perty." I said I could not see why the obstruction was placed, at that time, unless it was intended to catch a passenger train, 291 as they did not know this train was comings there were some remarks made like this-"probably the men who put it there, knew their business." I said if it had got to that pass, that we could not do our business on the road, I, for one, was ready to come out and defend the road with arms, if necessary. Fitch said if that was it, they might come on; he had at his house two double barreled guns and some pistols loaded, ready for business, and they had men enough to use them." I will not detain you longer, by reading the description given of the dry marsh. You cannot have forgotten it-your blood like mine must have chilled, as you heard that witness detail that it was thro' God's Providence alone that the engine was not flung into the terrible abyss; that if the passenger train had come along first, its more rapid speed would infallibly have turned it from its course, and dashed it down deep into that slime, through which shafts have been sunk with ease over fifty feet without finding its bottom. But the counsel will ask, where is the evidence to convict Fitch and Filley with this offense? I answer, you find it in their expressions to that gray haired man, as he stood on the occasion trembling and breathless-"Spaulding, by God, the Company can never run this road in safety, till they pay us."-"Probably those who put it (the obstruction) there knew their business." Is this, gentlemen, the language that would at such a time flow from hearts of men "who had never violated any law of their country?" The picture presented, was terrible, and needs no gloomy coloring. The catastrophy which a kind Providence had averted, was fearful, even to contemplate. Fancy that doomed train approaching, with its precious freight-families returning from long and painful absence-visions of home and happiness flashing before them; on they rush, unconscious of the fate prepared for them; there is a sudden stop —one mighty bound of the engine-one shrill whistle-one wild scream, and all is over. They are sunk, entombed-not in the beautiful cemeteries where mourning friends may weep over their ashes —ot even in the bright, clear waters of our lake; but amid the slime andmud that ages have accumulated in that dismal spot. Of a truth gentlemen, these men might say, they "knew their business," for they had learned it fearfully and well. Such was the fearful picture presented to their minds. It was one calculated to shake the firmest nerve-to appal the stoutest heart; but it shook, it appalled not them; their minds had brooded over it; famili rity had robbed it of its terrors, and it only called up the old motto of their hearts and mouths-"by God, the Company can never run their road, till they pay for our cattle." Their actions, their language, their demeanor, were all those of guilt. I confess, gentlemen, that if this fearful deedwas shows by any ordinary evidence, my mind would be loth to re — ceiveit. It would seem too fearful, too improbable; but it uw a done-some one did it-the only question is, who? And who so likely as those who often threatened to do it?-who, in that fearful hour gloated over it? —and even amidst the kind manifestations of Providence, yelled forth their demon threats? But this is not si 292 Spaulding further says: "The same time I found other obstructions on the track near Filley's house; they were old strap rails driven into the joints of the rails. They were placed in along for 60 rods, some right opposite Filley's house and Fitch's garden. There was generally a bush thrown before the obstruction to cover or hide it from us; once found a dead calf drawn on the track-the obstructions were well calculated to throw a train off-some of them were within 30 feet of Fitch's house-the track within 20 or 30 feet of Fitch and Filley's houses, any one coming out from Fitch's, towards where the men were when they came to the engine, must have passed right over and among these obstructions on the track." 29.-Sherman, at p. 55, narrating a conversation between himself, the two Prices and E. Champlin, says: "Price told of aplan laid for Wescott; said Wescott had been in the habit of coming to the'Centre and playing cards; the plan was to place a seat so that Wescott would sit at the window, and they would stone him through the window from the outside; those inside, at a signal, were to blow out -the lights and jump away, when they were to smash Wescott's head with stones from the outside; this was told in presence of Champlin and the other Price; said they knew he was a spy, and he ought to'be killed; this was the plan they had laid, and said if he had come again, they would have killed him. I spoke to Wescott, and warned -him. Had also heard Corwin threaten to shoot Wescott, if he had -come down at night." Wells also proves that he heard of the same plan. Wescott, at p. 88, says:'"I heard of a plot to assassinate me at the Centre; I went to the Centre to find out what was going on; I crawled through a hole under the bar-room floor; it was in the evening, in Nov., and the Price boys, Wm Corwin and Credit, were in the room. I remained under the floor a short time, and Fitch came in; I heard the Price boys' say they were d-id fools for letting me slip through their fingers; that I was the only man that could injure them, and that they had made d-d fools of themselves in confiding so much to me, and I must be laid out. They spoke of a for"mer plan which failed; and said among themselves there must have'been a traitor in the camp, or I would have taken the seat they de-signed for me. I had on a certain occasion been invited in the morning to come'down in the evening and play a game of eucher; I went down and'found Jack Freeland, Corwin, Prices, two Champlins, Barrett and'N. Credit-Filley came in, and said every thing' was ready to play eucher in the other room, and invited me to go-in; and wanted me to take the seat next the window, looking out on the stoop. I did not do so, as I had been apprised that if I did, my life would be in danger." And in the face of such testimony as this,, we are asked where is the proof of combination among these defendants? 30.-Wescott proves that one night he was chased through a creek. Wells proves that he heard Filley tell Fitch he chased a spy through the creek, the same night, And Sherman, p. 54, says E. Champlin -old, him of it. 293 31. In May, 1850, a stick was placed in a culvert so as to strike the cars: this was in the evening and a different occasion front that already refered to. Freeland admitted that he saw it but passed on lest should be laid to him-proved by Spaulding. 32, At page 88, Wescott says: " I remember once when Fitch predicted the cars would be detained; I came down in the morning to take the cars for Detroit, and Fitch said I need not look for the cars until the sun got over past the meridian; they were then due from the west; it was soon after sunrise in the morning. He said it in reply to my remark that the cars were rather behind their time, the cars did not come along that day until near 6 o'clock P. M.; it was the day the cars were run off at Galesburg, and that caused the delay." The counsel was wise not to present this testimony in any appropriate connection, for even his sophistry could scarcely explain away tho miraculous manner in which Fitch could foretell so improbable a thing, as that the cars due at sun rise, should not come till evening. Clearer proof of a guilty foreknowledge of that outrage could not. be adduced. 33. Lake proves that in March Doct. Farnham told him Fitch hads hired Mount and Ackerson to burn the depot at Jackson, and that Williams told him the same, and that Mount and Ackerson also told him they were to do so. Caleb Loud at page 74, states he met Corwin in the same month, and says: "We were riding round the sheds by the Depot at Jackson when I remarked that a fire there would sweep the whole lower town. He put his hand on my arm and said, " Just remember my word, there will be one here before long." Is there no evidence of concert here? Mount and Ackerson are employed to burn: how does Corwin know there will be a fire there soon? Is it not here and in every instance, manifest that whoever might do the deeds, all were privy to it, aiding and encouraging? Wescott at page 86 says: Fitch spoke of the burning of Depots as part of their plans, and that Filley once " spoke of burning the depot at Jackson; proposed to Corwin to burn it; said he had been by it and saw a good many shavings there which would make the work easy." At page 35 McMichael speaking of his interview with Corwin in Sept 1850, says: "He wanted I should go in with him and help to tear up the railroad track; he also wanted I should help him to set fire to the depot of the railroad at Jackson; he said we should be well paid for doing it; he said Fitch would pay us; he said he wanted to injure the Co. all he could, that they run over cattle and would not pay for them;' The enrire truth of this witness is established by Morgan Wescott page 118, who overheard the conversation by chance, and corroborates every particle of the testimony. Entirely unimpeached witnerses, men against whom not a word had been said even by coun-U sel, proved every material point. We have the burning of depots fully established as one of the many designs of the defendants botht before and after the fire in Detroit. 294 34. This is one of the most remarkable of all the designs of the,efendants indicating as you will perceive, combination, perseverance andl scientific skill. Brown, at page 39, says: " Heard Jack Freeland once say there could be a plan fixed to llow the cars up; this was when he was dropping in clover seed ia Filley's hill. Joseph Wells and I were together when he said so. It was thus: To conceal powder so fixed that it would explode when the cars run over it; he said this was a plan talked' of, and that it sould be done at the dry marsh; he said he knew it would work, and when they passed there tt would blow them off the track." and Charles Rogers page 117, says:' Heard Fitch talking of the cars; he said by placing a keg of apwder under the track, and having a trail of powder to the track, it could be fired by means of percussion matches under the rail; said he would like to see it done; have heard him speak of damages by the road in killing cattle, in justification for the depredations." Wells testifies to the same conversation as Brown, and Caswell says he heard Fitch speak of it. You will bear in mind that this testimony, refered to early in 1850, Freeland had but a crude idea,of it; he contemplated the effect, but had little notion of the means. iitch, more intelligent, improved somewhat on the idea, he thought; f percussion caps, but still, that was far from the best and most cer-.aia means of causing the explosion. We next hear of this scheme by Phelps and Lake, who say Doctor Farnham showed them a machine for blowing up the cars; that Fitch spoke of it to them-; they described the construction with three tin tubes, and state that the Doctor told themn he had some trouble before he could make an ex-,losive composition to suit him for it, but had at length succeeded. WMow, then, we have Freeland's crude idea, at length brought to per-.eitron. It has received the finishing touch and is now prepared to aimrder on scientific principles. But the counsel will say, that is the testimony of Phelps and Lake. I promise that at the proper -zme I will show you conclusively that Phelps and Lake are entitled to fll- credence, but for the present I can dispense with their tesiimoaiy All they prove is proven bv others. Asa Wyman whom you wall remember as a very unwilling witness for the prosecution at page 58 says; "I know Doctor Moulton, on trial; had a talk with him about ailroads; he said he had heard they were going to blow up, either "' a road" or "the road;" don't know what road he refered to." Now although this testimony at the time it was given occasioned much laughter, does it not show in connection with the other evidAeuce, that Moulton was cognizant of this Freeland plan? They would have no secrets from one who was to burn a depot for them; aid can you doubt what road was meant, or that he referred to the wery machine mentioned by Phelps. Asa Burdick on page 109 and 1101, says: "I know Dr. Farnham; I was in Jackson last spring; in March or April saw the Dr. going into a grocery formerly kept by Showers, a country gent.; Corwin called the Dr. up and treated him,.ad then whispered and talked privately together; we went out to 295 gether towards Bascom's Hotel;-took me one side to an alley, and said, I want to tell you something, for I believe you to be a pretty d-d good fellow. Think he was-pretty well corned: he then saidthe railroad-and here halted a moment, and then continued-hell and damnation! the roailroad will all be blown up in less than a month." "TheDr. s'aid $10,000 all gone to hell in one minute: said also,'he had the tools to do it." The old fellow was pretty well corned when he said it. Even in their drunken ebulletions, the fullness of their hearts came forth. Nether Phelps nor Lake-prove more than this. The testimony is natural; and apart from the fact that it is given by men of high unblemished character, has truth stamped upon it, and shows a deadly settled enduring combination between Fitch, Freeland Moulton and Farnham. Dobbs on page 119, says: "In a conversation he had with Williams, Myers, and Corwin, " they said they wanted another hoist, and spoke of powder; said if that wouldn't do they would try semething else." 35. Taylor proves that in July'50, the cars were stoned,-he went to the door-Williams and Woliver passed him towards Filleys and he heard one of them say he had stoned them, and would do so while he remained at the Centre. 36. Two wood piles were burned at the Centre. Huntington, who with Stone, put the fire out, says at page 79: "Fitch, Filley, E. Champlin and Mr. Broniger, came up to us. Mr. Stone told those who come up we had a hard night's work, and called on the cars for help, and they only stopped and gave them a damning and went on. Champlin said that was right, we ought to be d-d, and d -m those who would'nt d-m us. Filley said we ought tobe burnt up with the wood, then the company would pay our wives half price for us. They blackguarded us for putting out the fire and watching the road. I told them I thought it was my duty to save property when it was being destroyed." "While we were putting the fire out we heard walking and whispering in the bushes near us but could see no one." Mr. Stone says: "Fitch, Filley and Champlin came there about daylight when we were putting the fire out. I told them I had been to Jackson for help, and also stopped the cars to get help. Fitch replied I ought to be burned up with it and the road would pay my wife half-price for my ashes." It may be doubted if this is proof that Fitch, Filley and Champlin fired the wood, but their expressions would lead to that conclusion. Why were they there before day-light? Not to render assistance. Their expressions show them capable of the act; and their presence, their means of doing it. Who were the persons heard in the bushes? None but these were seen at any time. 37. Mr. Dobbs, a witness who stands entirely unimpeached before you, says page 119 and 20:: At Hadden's grocery, Williams, Corwin and Myers were present, Williams asked me if I wished to 296 go into a speculation to make some money: told him I did; he asked me if I knew where the steamers Mayflower and Atlantic laid up; I told him I did not; that Ward's boats, I believed, generally laid up at Newport. He said there was a speculation to be made, that they wanted those boats to be brought to the water's edge; said to me, you know al about the arrangements about the boats, and there is $500 ready for you if they can be burnt. I told him I thought it would be a bad speculation; he said my expenses would all be borne, if I had to go to Buffalo, I could live like a gentlemen; said if I succeeded, I could have $500, and he would refer me to the best backers in the county for the $500; spoke of Fitch, Filley and E. Champlin." Here are three of the defendants, contemplating burning as a means of bringing the company to terms, and referring to three others as willing to aid them. 38 Holmes, page 97, testifies that Williams for no other reason than that he was suspected of being a spy, assaulted and beat him in the most brutal manner. He thus describes the injuries he received: " And I instantly received'a blow on myhead which knocked me senseless for some time, and paralyzed one side of my head so that I have lost the use of one side of my tongue-it broke my jaw, and I was disabled for some time from the blow. I think Filly, E. and L. Champlin, and Kirkendall were present." At page 101, John H. Dexter says: "A short time before, I heard Fitch, Filley, Corwin, Prices and others speak of Holmes being a spy; heard Corwin tell the way H. was struck with the bottle;: said Williams held up the bottle, and he struck it out of his hand, and it struck Holmes. I heard W. call H. a spy just before the blow; I was present when H. was struck, but did not see the blow; the bot. tie passed clear by my head, and went very swift; it could not well have beenthrown swifter." I ask you gentlemen, to give this occurrence its full weight. Can the mind fancy a more brutal deed, than this cowardly attack by a young and powerful man, upon an old and feeble one-whose only offence was being suspected as a spy. If there was no combination why this restless dread, this bitter hatred of spies, that breaks forth on every occasion from the lips of these defendants? Every man who did not belong to the combination was suspected and treated accordingly-even Holmes, weak, poor, feeble, tottering on the verge of the grave, could not escape their suspicions and their fury. When we find an old man thus stricken down and almost murdered by brute force, upon suspicion alone, it is fearful evidence that the menace against spies " to kill and shoot them," were not idle words but settled purposes. I have now gentlemen, gone thro' a fair and candid list of aggressions,comprizing most,but not all of those committed. Altho' I felt as I proceeded that I must have been dull and tedious, you will admit that I could not otherwise have removed the impression that must have been made on you by an able and ingenious argument. A fair and full reading of the testimony was the most direct and 297 convincing answer to that argument, and casting aside every attempt,at sophistry and eloquence, such is the answer I have given. You will remember that when the eloquent counsel concluded his list of menances overt acts, he gave this as the result: they numbered twenty-seven in all. Filley was compromised in four of them; Corwin in six; and the Prices in three; and no other defendant was identified with any of.them. I need scarce claim that the list I have presented is fuller and more accurate; you see that it is. It is more candid for I have not read the evidence from prepared extracts, but from the full report with by means afforded you to judge if I erred; and mark how widly its result differs from his. Instead of 27, I have 38 menaces, or overt acts; and the following defendants are clearly compromised in the following number of the 3?: Fitch in 19; Filley in 17; one or other of the Prices in 11; Corwin in 15; one or other of the Champlins in 7; Williams in 7; Tyrrell in 1; Farnham in 2; Lemn in I; Barrett in I; Freeland in 3; Laycock in 1; Credit in 1; Mount in 2; Ackerson in I; and Myres in 1. And had time parmitted I might add still further to the list. When the learned counsel from hisl-nig research could only find implication of three defendants, each in only a few instances, we cease to wonder at the fact that he has also been unable to perceive how these repeated acts of aggression, in their number and manner of performance, indicate concert and combination. I will not say "none are so blind as those who will not see," but I do think, your views will be very different from his. And now gentlemen, permit me to ask in all reason, do we not find the evidence of full concert and combination in these acts and the declarations that accompanied them? I do not ask you to look at any sidgle one of them only, but look at them all, and answer upon your solemn oaths do you believe there was combination? You will remember that concert need not be proved by written papers nor by even parol agreement-nor by any single transaction. The authorities I have read show, and the court will I hope, charge you that combination can be proven,[by different acts, done by different persons, if there is concurrence in time, in motive, kind and object. In these acts we have all these concurrences, the uniform threats of those committing them is to injure the road; the uniform object to be effected is the same; and almost every single act is accompanied by a declaration of the same motive, which has been so often rung in our ears; " the road must be compelled for cattle killed." What is the nature, scope and object of the combination charged against these defendants? simply this, that there was an understanding between them that for the purpose of forcing the road to pay for cattle, they would at all times and on all occasions do what injury they could to the road; and that in the perpetration of these injuries, and, in the event of arrest or trial, they would aid and encourage each other; we do not claim that there was ever a positive distinct meeting of all the defendants where it was agreed to do any one particular act; such pretence or proof is not necessary. The 298 combination we charge is clearly proven, when we find sixteen of the defendants, for a space extending over two years, constantly engaged in acts of aggression springing from the same motive and aiming at the same end; when we find the perpetrators of these aggressions freely communicating their crimes to the others, and receiving praise and encouragement; the freest confidence prevailing among them upon these subjects; when we find each one, at all times, ready upon the slightest intimation that opportunity offers; to engage in any, even the most fearful and appalling aggressions, these things are clearly proven, and they exclude every other hypothesis save this-that these men acted in concert; that there existed between them a firmly knit and fearful union; that they were actuated by the same motive and aimed at the same end. The extent and scope of that combination is also shadowed forth in these acts and menances, within them are comprized obstructions of the trains, shooting at engineers, stoning the cars, burning culverts, burning depots and burning boats. One other observation gentlemen, and I pass from this branch of the case. The only witnesses for the prosecution the counsel for prisoners pretended to assail or discredit, are Lake, Phelps, Wescott, Woliver and Wells: now, you may strike out all the testimony of these witnesses, and with the exception of a few of the most venial acts, the proof in relation to the acts I have read continues just as conclusive and implicates just as many of the defendants. But if further evidence were needed that a combination existed among these men, of the character I have described, we find it in the meetings at Filley's. I will not weary you, by reading the mass of testimony, in which the character of these meetings is described. I will only read to you the testimony of Brown, who you will remember stands entirely unimpeached, and whose integrity is expressly conceded. Brown, page 38 and 39, says: In April, 1850, became acquainted with the most of them; was then living with Ami Filley, at Michigan Centre; now reside in Jackson village; went to live with Ami Filley in April, 1850; I lived with him about two months; was employed to work generally for him; he then kept public house; frequently saw those persons meet at Filley's: could not identify the times, but they met -often; sometimes in the day time and sometimes at nights; at nights they would generally stay till 10, 11 or 12 o'clock, and some would stay all night at times; Fitch never stayed all night; Welsh I have seldom seen at Filley's; Moulton and Penfield were not so often there as the others; Ackerson was not there generally at the time of meetings; came as any other person; the others met there habitually and often. Have heard Filley speak of R. R. Co. at these meetings; have heard Filley say that he could have no feelings or sympathy for this Company; heard him say that people who traveled on it had better be cautious, they had been warned not to travel on it; have heard threats that they would let them (the Company) know there was a God in Israel; they did not say particularly how they would let them 299 know it; have heard Jack Freeland, Mr. Fitch, and Mr. Filley say something about God in Israel; have also heard them speak of the dry marsh; have heard them say, Mr. Filley in particular, that the dry marsh would be a good place to let them off the cars; they allowed it would be a good place to let the cars run off. Freeland, Fitch and Filley, said they had warned persons not to travel on the road; don;t recollect they said anything in particular of hand bills, but said they had warned them; they said they wanted the road to pay up for cattle killed, &c. The persons I have named, talked the above matters freely among themselves, but shut up before strangers; when they have been talking so and have seen others coming, they would not continue the conversation if the new comers were not connected with them. At page 100, Dexter, whom you will remember was a stranger, no way associated with the defendants, but who worked for Filley, says: "At their meeting, when I came in, they appeared to change their topic of conversation." You will remember that Wells, Woliver, Dixon and other witnesses, describe these meetings more fully, and testify that the sole topic of conversation was the railroad. What are the elements of combination? Unity of motive, purpose and design, make the fullest combination. Are not all these evidenced by the habitual meetings and the constant discussion of one unvarying subject. How can you judge the intent of men if not by their language, and if words mean any thing, those used at these meetings evince unity of motive to extort payment for cattle, and unity of object to injure this company in every possible way; this is combination and for an unlawful purpose. But we are told there was never an appointed meeting. It is perfectly immaterial how they came together. When together,their language shows that the same hatred of this road burned in every breast; that the same felonious designs were brooding in every heart. We are told there never was an unlawful meeting. Gentlemen, modern days have given birth to many strangeg ideas, but it is among the strangest and most fearful when a distinguished lawyer before a high tribunal, and to an empannelled jury, says in the face of testimony like Brown's (and he is conceded to be a truthful witness) these meetings were not unlawful-what, gentlemen, not unlawful to warn travel off this road-not unlawful to plan and suggest the precipitation of whole trains into the dry marsh (a thing afterwards attempted)-not unlawful to threaten and -agree to let this company know there was a God in Israel. For the last three months we have been learning the Leoni vocabulary and know what that expression means. It calls up terrible pictures of property destroyed, lives endangered, and snares for the coming engine. But men may do these things,provided they do not issue public calls, appoint a chairman and secretary, they may come together concoct plans, agree upon arsons, and have at least, one authority upon which to tell courts and juries it is right and not unlawful.Gentlemen, there is no need of a chairman and secretary to make an unlawful meeting, there is no need to show all the defendants at one meeting to prove combination, and though counsel tells us they 300 had no tyler at the door, the evidence tells us they had one in every heart. "They talked freely among themselves but shut up before strangers," " when I came in they appeared to change the topic of conversation." Yet you are told the meetings were public, there was no tyler at the door. But says counsel they met casually and at different places. Yes gentlemen, but whenever and wherever they met, the railroad, and plans to injure it was the burthen of their speech, they did not want notice to come prepared to speak of that, it was ever present, they were ever ready; they did not need a chairman to announce the object of the assemblage: the purpose of the combination was single, well defined and fully understood; its members were well known to each other, and whenever or wherever they met, each knew that this would be the most acceptable and interesting subject to the other. Bnt, gentleman, if acts and meetings do not show combination, take a few individual expressions, proved by witnesses not sought to be impeached in any way. Holden and Galespie, page 73 and 74 prove: " Gardner spoke of the cars being stoned the night before; Fitch replied that it was very mild means they were now using; if they did not pay for cattle killed they would get something worse than stones;; said it would cost the road $100 for every animal killed." This, of course, contains no allusion to others. Monroe, page 78. "Freeland said, they had better pay for the cattle; they were all opposed to the road for ten milles back; if spies had been along the night before, they would have got blown over; he would shoot one quick as a squirrel; had a gun and kept it loaded for that purpose." Knickerbocker, p. 96, says: "Fitch said he considered the course, the people were taking, justifiable; they had their cattle killed and could obtain redress in no other way. Judges could be bought, &c." There was no combination, there was no identity of object. Yet the people were laying obstructions to obtain redress-community of motive, act and object, but no concert. Welling, p. 110, says: " Fitch made an estimate of the cattle killed, by the road, near Leoni, and said there had been forty head killed, and that they had already cost the company over $400 apiece. Burnet told him he had better tell the boys they had gone far enough, and that a little labor or a few words from him (Fitch) would stop the depredations. Fitch replied that he told the boys to get pay for their cattle if they could, if they could not they must lay their plans so as not to get caught at it." Of course "the boys" were imagined persons. It was mere fancy in Burnett to suppose Fitcu was the controlling leader, and a mere idlejest in Fitch to say he had given such advice to imaginary persons. Yet there may be some truth in this. These two defendants, you will remember, were on the committee appointed to confer with the Attorney General, and leaders are generally appointed on important committees. I refer you to the letter of Fitch to Mr. Brooks. 301 " Michigan Centre, Oct. 29, 1849. "Mr. J. W. B0ooKs —Dear Sir:-A Imost every day some persons wish to take passage on the cars at this place, but the trains refuse to stop for them. Yesterday Mr. G. C. Chatfield, mother and! sister wished to take the cars for Detroit and gave the usual signal, but no notice was taken of them. Now, if this policp corns from you or your legal advisers, as did the insulting half-pay proposition for killing cattle, if serious accidents do occur on the road, on your head, and yours alone, must rest the responsibility. Yours, &c., Abel F. Fitch." And ask you to apply to it the following languege taken from the charge of an eminent judge: "It frequently happens that unneces. sary, strange and contradictory declaratious cannot be accounted for otherwise than by the fatality which attend guilt. Apply the same rule to Fitch's prophesy that the cars would be late the day they were run off at Galesburg. I refer you to the "Price Boys Waining" so often alluded to, signed' By order of the Committee." Dowdle, p. 110, says lie asked Penfield what the Leonians were threwing the cars off the track for; Penfield replied, "we are con. tending for our rights." But the counsel will tell you "we" is in. definite, it means anybody and therefore points to nobody. Nichols, p. 120,-Fitch, speaking of thase instructions, said: "They were the only means for bringing the company to tersm." (Here Mr. Van Dyke read from the testimony of several other witnesses and continued.) And so on gentlemen to the end of the chapter, I might detain you for hours reading similar expressions from almost every one of the defendants; but why waste your time on a part of the case so fully proved. I need not recall to your mind the constant expressions of all the defendants relative to spies-but I will ask you how came among these defendants this uniform hatred and fear of spies? How many of the defendants are proved to have constantly used threats against spies? Nearly every one. How many are uniformly found speaking of people being warned not to travel on the road? Nearly every one. How many (are found speaking of the dry marsh? More than half of them. How many speak of the impossibility of conviction, and their readiness to swear for each other? Every principal one-Fitch, Filley, Williams, Prices, Champiin, Freeland, (Jorwin, who can prove that a" horse is a blacksmith shop, and every hair a candle!" and others whom I will not detain you by referring to. I respctfully submit to you, gentlemen, that the proof of combination is perfect. We find it everywhere, It stands out on~ every page of the evidence. These defendants do not talk the language of men unconnected with others-on every occasion they speak the language of combination. Each one speaks in the plural, "'we are contending for our rights." "I have advised the boys," &c. &c.The same uniform ground of complaint is on the lips of each one-'" they must pay for cattle." They meet habitually, discuss the same unchanging theme. At these meetings plans of outrage are suggested-they are afterwards carried into effect We find most of 302 defendants identified with these. acts. We find others snstaininme, them, and if all this fails to prove combination, the entire law, relating to conspiracy, might as well be blotted from our books, for proof of it would be impossible. But combination is proved, and I feel satisfied there is no doubt remailing in your minds on that subject. It is true, gentlemen, that Woliver, one of the witnesses who testified to the sayings and doings of these conspirators, has been assailed.ed. The evidence of the acts and combination deducible from them is quite perfect without poor Woliver. But what is said against him? Why, that he is a poor worthless driviling sot. And who made him so? Who made him poor? Who robbed him of health and happiness' Who paid his year's labor by charging him for a barrel of whiskey? Who clothed him in rags, dashed every trace of God's image from his features, and filled his veins with fire, until every affection was scorched, every flower of youth blighted, every hope consumed, and until oven his reason tottered on its throue? You have heard it all-and now this same Amini Filley would tell you-" Don't believe this poor drunkard." But, gentlemen, the guardian angel of Woliver had not quite left him. In a moment of bliss for him, he was led fiom the ruinous influences of Michigan Centre, made an effort to burst the toils that bound himf he has thus far redeemed his promises of reform; the blood is. circulating once more in healthful current through his veins; life has once more smiled upon him, and the citizens of an interior village, who cheer him on in his new career, stand ready to vouch for his truth and good conduct. W EDNESDAY MORMING. The Court being in session, Mr. Van Dyke continued his argument as follows: May it please your Honor and Gentlemen: I intend this morning, as briefly as the purposes of Justice will permit, to take up the alleged contradictions in the testimony of Wescott. I trust by a a candid and truthful review to show you that he is not impeached in a single material point-that his testimony is fully corroborated, and that he has sworn to nothing more startlingeor improbable than witnesses who stand before you unassailed. If I succeed in thic, you will be bound to give his evidence the weight and consideration which it merits. I may not take up these alleged contradictions in the sama order in which they have been presented by the other side, but I will go thro' with them all. 1. It is claimed tohave been shown that Wescott could not have got through the fence and heard the conversation to which he testified between Fitch and his wife. Whether he got through the fence,or passed over it, is perfectly immaterial. I will say but little on that point, for the material question is not how he got there, but was he thnre, and did he hear the conversation. You have seen the fence and can judge if he could not have passed inby the removal of one or more pickets. I think your recollection will tell you that at the very spot described by him there are several new pickets, and several old one,the 303 nails of which appear to have been removed; but whether he got in thus or not is immaterial,and the witness may easily have been mistaken in his detail of a thing with which his mind was not impressed, or as to the spot where he entered on a dark night. The defence have sought to establish that at the time mentioned by Wescott, (the last of August) Fitch and his wife had their bed-chamber up stairs; this is material, ane if clearly established so far is an lmpeachment. How is it established? Miss Fitch testified that at the time, and during all the warm weather, they slept up stairs; that it was their invariable habit to do so. Miss Boman says that she was at Fitch's on the 27th of August and a later period, and on both occasions they slept up stairs. Miss Clark also proved that up to September they roomed up stairs, but you will' remember that on cross-examination she showed clearly that she was mistaken and had left Fitch's about the 22d or 23d of August. She says, "I still think it was about the middle of June,'50, 1 went there, and that I staid 9 weeks and returned to my father's." She in another place states that she went to Fitch's in the middle of June, and had $1 per week, and received either $8 or $9 at leaving. The best evidence of her intention to be truthful, is, that while she perceived her error she does not attempt to cover it up. At first she undodbtedly thought she was at. Fitch's till September, probably that had been impressed upon her mind; but on the stand she lankly states other facts which she must remember better, and which show that she left there in August. I do not wish-it is not necessary that I should-attribute to the girl Amanda IFitch any intention to deceive. I can well imagine, without imputing to her anything that could soil the purity of her young soul, that while her child's warm emotions beat in sympathy with her father and stepfather, while her childish-ear was keenly open to the sobs of her mother, it would be easy to bend her memory to her heart's wishes, and impress npon her willing mind the truth of any slight change of date or fact which might seem to tend to the relief of the peril and distress of her dearest and dearest fiiends. You are told she is young and candid. Concede it. She is not more so thon that other child Miss Clark; and if the latter was deceived and erred, how much more readily and naturally -the former? \ Miss Beeman, the friend of Mrs. Filch, the welcomed visitor at their house, is not infallible; and she, too, might err. Against this testimony, gentlemen, you have that of C. Burr, who proves that on the morningof the 29th of August, and on another morning a few days preceding it, he saw Fitch in bed in the lower room, and that on several occasions in Auoust and September, when he called to see him, he came partly dressed out of that room. Also the testimony of Dr. Backus. the attendant physician of Mr. Fitch, that he most frequently visited him in the summer and fall, and ihis lodging room was always below stairs. But Mrs. Fitch was produced upon the stand though every lawyer must have known that her testimony on this point was incompetent. I will not say that she was brought here for effect or to move the sympathies of you or this crowded hall; but I will say she was not cross-examined. She passed in silence from the standshe will pass in silence now. I would not to subserve any cause, indulge in reflections which might move her overtaxed sensibilities. May 304 her sorrows soon pass, and happier and brighter days compensate her for the grief and gloom of the present. 1 will, however, say to the counsel that before he indulged in remarks upon this subject, and the exclusion of Mrs. Fitch's testimony, he should remember that he was the first to shut out the light' by objecting to the proposal to prove by Dr. Backus, a gentleman of the very highest integrity, that Fitch admitted to him that he had seen a spy under his bed-room window. To contradict a witness,the proof must be as strong and clear as that which establshes an affirmative fact; but here, even if Wescott's testimony is disregarded, ihere is stronger, much stronger proof, that Fitch slept in the lower room, than that he did not at the time in question, and therefore the re is no impeachment. 2. The defence claim to hwve proved that Wescott could not have got through the hole under Filley's bar-room, and that hence his narration of the conversation there stated to be heard is false. I refer you to the testimony on this point. First there is the testimony of Hildreth. (Here counsel read Hildreth's testimony.) You perceive gentlemen, he only thinks he opened the hole'tis true; but he did not measure it; but did not even notice it particularly, to ascertain its size; but thinks it was no larger in December than when he opened it.Young Fitch proves that on Christmas day he tried to pass through the hole but could not. This might be; you were there and noticed that two large stones stand beside the hole; during the cold days of Christmas, it would be most natural that one or both of them should be placed in the opening, to exclude a portion of the air that would otherwise render the room over it unbearable. But in answer to all these doubts, we have the testimony of Mr. Clark, that in consequence of a communication fiom Wescott, he examined the hole and it was then as large as now. Knowing Mr. Clark's high reputation, knowing ihat you would believe every word that fell from his lips-counsel try to persuade you that he erred as to the date. There can be no error; he went examine in consequence of Wescott's communicalion, and from other testimony you can have no doubt as to what that communication was. 3. You are told that Wescott was indicted at Mackinac; to avoid the odium of it, he testified that Doctor Rankin, the prosecutor was himself indicted for perjury; fled and committed suicide to avoid conviction; but that the Company clerk of Mackinac, proved the Doctor never was indicted and died a natural death. Such is the statement made to you, (I refer you to Wescott's testimony, p. 95.) "The indictment against me at Mackinac, was obtained on the affidavit of Jairus Rankin, before the grand jury. A nolle prosequi was entered, because Rarnkin was indicted by the same grand jury for perjury in making that affidavit. Wm. Gray was the prosecuting attorney. I went there for a trial three seasons, but he never appeared as a witness against me. I have been told that Rankin committed suicide." You will perceive that Wescott does not say that Rankin committed suicide; he was only told so. You will also remember that it was stated by the prosecuting attorney, here in open court, that he had seen an account of the suicide of some Doctor Rankin, supposing he was the same Ran 305 kin, had mentioned it to the witness. By referring to the testimony of Mr. Kevan, the clerk of Mackinac, you will perceive that although there was no indictment found, a complaint was presented before the grand jury against Rankin, for perjury; a fact which might well lead the witness into the mistake. But this argument is needless gentlemen; the entire matter is immaterial in this case, and can only affect Wescott's testimony if he meant to deceive you. Did he mean to do so? If so, he certainly took a strange method, for unasked, he volunteers the statement that Mr. Gray was the prosecuting attorney; thus referring to my talented and cherished friend and colleague, a respectable member of this bar, then in court, and now at my side, and who from the official position he occupied, could give full and accurate information, thus furnishing a witness on the spot, to contradict him if he was false. As I review those alleged contradictions, they fade so rapidly under tle application of the testimony, that I almost question if they were seriously urged. 4. It is stated to you that Wescott testified he saw Fitch and Dows on Friday, about 8 P. M.; go to the house of Gay, and it is claimed that this is contradicted by the testimony of Jones, Holden, Brown, and Sumner. You will remember that the Friday in question was February the 14th. On direct examination, at page 95, Wescott says: "I next saw them together, about the 12th of February, on Jefferson Avenue, on the corner of Woodward; I was dressed in disguise; they were conversing; they went from theie to the house of Washington Gay, together." Although the report of the testimony does not contain any question and answer, you will remember that the defence, on cross examination, tried to get him to fix the day as Friday, and, after some time, got him to say, at page 89 —"When I followed Fitch and Dows to Gay's house, it. was in the evening. I think this was on Friday. I was alone when I followed them." And this is all that is to be found on the subject. By referring to the testimony of Jones, you will perceive he does not pretend to account for Fitch on any evening. Holden saw Fitch on the 12th, soon after the cars got in. The witness then went, and got his tea; then went up town, wi s gone about half an hour and again saw Fitch on his return; thus leaving Fitch unaccounted for just at the hour mentioned by Wescott, (for you will remember the cars arrived about 8 P. M.) and for a sufficient time to go to Gay's.Brown saw Fitch on the 13th, soon after the cars arrived; paited from him; got his tea; dressed for a cotillon party; and, about 9 P. M., again met Fitch, and attended the ball with him; leaving, on this night also, abundant space for the visit to Gay's. Mr. Sumner saw Mr.Fitch twice at a fair on Saturday night; but does not imply that he could not have gone to, Gay's, as stated; for he does not name the hours when he met him; and, indeed, to even hint that he noticed the incomings and outgoings of any of the ruder sex, on an occasion when he was surrounded by the bright eyes of woman, would be an imputation which my very gallant friend, Mr. Sumner, would resent. We concede that the testimony of Brown excludes the idea that Fitch went to Gay's on Friday evening, the 14th, which probably accounts for the strong desire manifested to pin Wescott down to that day, on cross-examination. You perceive, then, gentlemen, that if Wescott had fixed the 20* 306 date as either the 12th, 13th, or 15th, there would be no contradiction. Now, did he swear to the 14th? On his direct examination,when his mind was left free to its real impressions, he thought it was about the 12t h, (Wednesday.) Goaded, on cross-examination,]he said he thought it Friday. It is clear you cannot contradict a witness by dates or hours, when he only thinks; but it is clearer still, that, when he has two "thinks," you cannot select your choice one as his positive evidence, and contradict him on it. The presumption of law is the other way; it is in favor of a witness' truth. The whole of this matter, then, is,, that the defence can say they came very near contradicting him. They were within ai few days and a few "thinks" of it. 5. Wescott denied having used threats that he would yet see Fitch'peeping through the grates." Mr. and Mrs.'ull swears he did. We have to meet this as we best may; but I think there is little in it. Wescott may have used the threat and forgotten it. You will remember that Tull fixes the time as the period when Wescott was accused of being a spy. Il is very natural that, in the heat of the moment, smarting under the threats and abuse that were heaped upon him, he would return threat for threat; but what men say in hot, is often forgotten in cold blood. Again, gentlemen, if Wescott used those threats, and remembered them, why should he deuy it? He was apprised that Tull and his wife were here to contradict him, and could easily have given some slight explanation, to break the force of their contradictiol. If he never used the threats. or if he used them, and forgot exactly what he did say in the heat of passion,.this does not impeach him. But the learned counsel tells you Wescott denied what Mr. Tyler proved, viz: that Wescott said-"A web was being woven round Fitch that would send him to State Prison." This, gentlemen, sounds serious. Ordinary threats, used in the heat of blood, amount to little; they are evanescent as the feeling that generates them. But here we have methodsomething that savors of the alleged counter-conspiracy; and how shall I answer it? Simply by telling you, gentlemen, that there is no such evidence. Neither Tyler, nor any other witness, swears to anything of the kind. Wescott was asked if he used these words to John Wells and Welch; he denied that he did; and there the matter rested. Neither Tyler, Wells, nor any other witness was called to contradict him. My answer is short, but it is complete-there is no such testimony. If there is, counsel are here; let them now point it out, or anything which looks like it. 6. You are told that wh]ile Wescott and Sherman testified that Fitch and Wescott were present at the fight in the ball alley, A. Cozier proves that neither Wescott or Fitch were at the alley till after the fight. By referring to the testimony of Cozier you will perceieve that he testifies to nosuch thing; on the contrary, he proves distinctly that Fitch and Wescott were about there at the time; if he did the oath of one witness could not/ impeach that of two-particularly when the defence, if they relied on this as a contradiction, could have fortified Cozier by J. B. Tull whom Cozier savs was with Fitch, and who; altho' called to another point by the defence, was never questioned as to this. The failure to question Tull on this point is evidence that he would not say Fitch and Wescott were not at the fight, yet if 307 they were not, he should not have known it for he was with them. 7. You are told he is impeached as to the plan to kill him by stoning; him through the window, because as counsel argues, the piazza from which the stones were to be cast is but three feet wide, and no arm in such a space could send a stone with sufficient force to do injury; and hence the whole story, yon are gravely told, is false. Gentlemen, you will remember this plot is not verified by Wescott alone. 1 yesterday read you Sherman's testimony, and you will remember that on this subject it is fuller and more minute than even Wescott;'s. You must believe him, for not a breath has been raised against his veracity, and while he and Wescott tell precisely the same tale, how are you to conclude that one tells the truth, the other speaks falsely? Again, if the argument of counsel was correct-if stones could not be thrown from the piazza, would it contradict Wescott? no, for he does not swear it could be done, he only tells such was the plan of defendants. But again gentlemen, tho' no athlete, I fancy that in three feet space (the piazza is four feet,) [ could send a stone with sufficient force to do injury, aye, even to kill. But of this you can judge. 8. You are told, and told with all seeming seriousness, that he is impeached, because if the rules of evidence had permitted him to testify Mr. Harsha would have contradicted him'by implication,' so they came very near it again.I am glad that I am through with these alleged contradictions. As we have called them up for review divested of the imposing uniform and decoratiou in which tie eloquence and imagery of counsel dressed them, they seem each one more ludicrous than its predecessor. A little more and thescene would better befit the after piece of the stage than a solemn trial for a high offence. I have no doubts in assuming, gentlemen,that I have shown to your satisfaction that the alleged contradictions of Wescott are visionary; he is not contradicted in a single essential point. You remember his demeanor on the stand; it was frank. He gave his evidence clearly and without hesitation; he passed thro' a long and searching cross examination without the slightest material variance; altho' long a resident and well known in this community, no attempt was made at general impeachment. I might stop here, gentlemen, and require you to give credence to every word he uttered. Jurors are not at liberty to disregard testimony, when the witness stands fair before them without impeachmen, or contradiction. But I will go farther, gentlemen, I will take up a few of the most material points of this testimony and show you that in them he is fully corroborated by witnesses whom you dare not but believe. He tells you the defendants were in the habit of meeting at Fiiley's discussing the sugject of the Railroad, and breathing threats against it. You have the same teslimony quite as strong as he gives it, from Brown, Dexter, Wells, and half a dozen others. He tells you that Fitch and other defendants said they had sent handbills, warning persons against traveling over the road. Attorney-General Lothrop, at page 158' and Chadwick, at page 107, testify to the same thing in equally strong terms, and so do other witnesses. He tells you that Fitch and others told him they were combined together to do all the injury they could to the road, that ineffect, they had taken the law in 308 to their own hands,and were determined to bring the company to terms. Let your minds revert to the acts done, the conclusive evidence of combination which gathers round the proof of them, and you have from good and unquestioned witnesses, all and more than all that Wescott says. Look at the testimony of Attorney-General Lothrop on page 158, that Fitch and Burnett intimated there was no use in seeking redress at law, that obstructions were the only means left to bring the company to terms. Look at the testimony of Mr. Knickerbocker on page 96, where he tells you Fitch justified the obstructions, scouted the idea of having recourse to the established tribunals, and proclaimed that the money and influence of the company could corrupt alike the judges of the inferior and supreme courts. Again, Wescott tells you the scope and design of the combination at pages 85 and 86. He says that Fitch said, "if they could succeed in killing from 100 to 150 passengers during the Fair, it would bring the company to terms, if not, he wanted to know what in God's name would? If he failed in that, God damn them, we will burn them out. He also stated he would give me or any other person $1000 to burn four depots, viz: Detroit, Ann Arbor, Jackson and Niles, or that he would give $250 for burning either one of them. He said there were men among them who would do it, but thought it had better be done by some one not living at the Centre." I confess, gentlemen, that here is something so fearful that the mind hesitates to yield it credence. But there is no accounting for the actions of men who begin by believing in the utter corruption of all who surround them, even of those whose virtue and wisdom have placed them to preside over the most sacred institutions; and who end by adopting vengeance as their guiding star, and hugging that hideous passion to their heart. They become blind to reason, justice and humanity. Every feeling turns,to morbid hatred; every pulse throbs with bitter passion, and the innocent and gnilty are alike sacrificed to minister to an insatiate appetite for revenge. But we cannot refuse to believe merely because of the nature and horror of the crimes, Fearful and fiendish as this design is, it was attempted. You remember engine after engine was obstructed; you remember the testimony of Spaulding, that the obstruction at the dry marsh was intended for the passenger train, and that if it had come as expected, its hundreds of passengers would have sunk deep, deep into that hidden and hideous lake. You are asked is it possible that Fitch would design this deed, when he himself, and his family und his friends were passengers during the State Fair.'Tis true they were at the Fair, but we find him and his family always on the day, never on the night train; and it was at night this fearful tragedy was to be enacted. But his friends. As to that portion of the argument I refer you to his own words to Chadwick, page 2fi7, "my friends have been warned, and if they will ride over the road, they must suffer the consequences." There is still the intention to burn depots. Is Wescott alone or uncorroborated in this? Is he the only witness who proves that the burning of depots was embraced in the designs of this combinations Not-at all. Caleb Loud proves it. And is he a witness to be believe edl Even counsel for defence do not question it. McMichael 309 proves it, and his truth is undoubted. Morgan Wescott proves it, and nis truth is unquestioned; and Dobbs proves that burning boats was also within the scope of their designs. These four witnesses stand fair before you, and you heard their testimony as I passed over the acts of aggression. They are not guilty of the crime of being employees of this Company; they are not polluted by any connection with "hated corporations." And it is not even claimed that grounds of disbelief have been presented against them. Yet they prove the very substance and essence of what Wescott proves; that fire, fire, was an instrument, the use of which was contemplated by these defendants. Wescott tells you again that it was part of the understanding of defendants, that they would, true or false, swear each other clear, and had friends of station and inflvence who would procure witnesses to swear' to anything. Is Wescott alonein this? Have you not heard the same from other witnesses? Have you not seen it with your own eyes, heard it with your own ears? I will not imitate the distinguished counsel and tell you what Cooper would, but was not permitted to tell, but I will ask you, did not Hawley perjure himself? Was he not suborned to it, by a friend of these defendants? Was not that friend (the Rev. Mr. Billings) a man of inflvence? It is needless to weary you longer with this. I might go all through Wescott's testimony, and show that every line is corroborated; that he swears to nothing but what is corroborated by undoubted witnesses. I have referred to the most important portions of his testimony. I have shown you that he does not stand alonel but that corroboration comes in upon you from half a dozen other sources. I feel confident I have gone far enough to ensure credence for every word uttered by him. Gentlemen, at this point I will ask you to pause for a moment and review the ground over which we have advanced. I have shown you by their acts, their assemblages; and repeated deelarations, that these defendants had conspired to injure the Railroad Company, by breaking its cars-diverting travel from its line; stoning its trains, burning its culverts; shooting at its engineers; obstructing its engines; blowing up its track; and burning up its depots and other property, for the purpose, in their own language, of compelling the Company "to come to terms" 1 have shown you that these threats were not idle boasts or unmeanin - outbreaks. What they threatened to do, invariably they did. I hae shown you that every one of these defendants against whom a conviction is sought, was identified with the overt acts, many of which are of a character far more fiendish than the burning of a depot. All this has been established by witnesses, whose truthfulness is manifest and undenied. This is all proven, exclusive of the testimony of Wescott; his testimony (after the examination and analysis we have given) advances us one step farther; we find by him that it was contemplated to burn the Detroit depot; others prove it was contemplated to use fire —to burn boats and other depots; he advances the case to the mention of Detroit specially. This then is the position of our case. The only thing yet remaining, is to identify these defendants with the fact. Gentlemtan, if an individual threatens to injure your business, assault your person, your property; and burn your house; if he is clear 310 ly identified carrying out the first three portions of his threats; and the house is burned by an incendiary, how much proof will you require to satisfy you that he is the man? Just so much proof do you want to:be satisfied that these defendants are the persons who caused the depot inthis city to be fired. So far we have advanced, and you will perceive that although these men are not now upon trial for expressions used and acts done in Jackson county; these expressions and acts, have, nevertheless, an important bearing upon the offence. for which they are on trial. Gentlemen, from time to time, as this trial progressed, much was said, and more felt, at the frequent and long delays which marked its history. The counsel for the prisoners, to escape from the responsibility which they cannot'but feel must rest on them, for the unnecessary protraction of the proceedings, have, with well-feigned earnestness, turned round on the prosecution, and charged that we desired haste at at the sacrifice of their constitutional rights, and begged for stipulations to cover up the blunder of placing so many on trial at once. Let this veil be removed, and let truth be apparent. These defendants were placed on trial together, because it was evident that, if tried separately, and the mass of evidence adduced against each which would be competent from the nature of the case, no living man could foretell the end. And again, the defendants themselves desired a joint trial, to save longer durance in jail, and increased expense, as is evidenced by their own consent and writing on the files of the court. And yet counsel, in the very face of these facts, charge the joint trial as both an oppression and a blunder on the part of the prosecution. If, indeed, defendants have ever been solicited to facilitate this trial at the sacrifice or risk of any legal or substantial benefit or advantage, then may they well throw back in our teeth our frequent censures of their long delays. But such is not the truth. We respectfully submit that it is the duty of every one engaged in the administration of Justice, in whatever capacity, to avoid unnecessarily impeding its course; but, on the contrary, it is their duty to aid in rendering it as speedy as is consistent with the rights of parties litigant; that courts crowded with onerous duties should not be intentionally hindered; that jurors forced from their own business, interests, and homes, at severe sacrifices, and sometimes irreparable loss, should not be uselessly detained; and that expense, avoidable and unreasonable, should not be accumulated, to be wrung from the tax-payer; and that they who do these things have a fearful' responsibility resting on their heads, especially if it be found that sickness and death ensue therefrom. Gentlemen, I appeal to you for the truth of what I uow assert, for you were eye-witnesses. Every cause of delay which could subserve,the purpose, has been seized upon with avidity by the defence. Was a prisoner temporarily sick, the defence would not stipulate to proceed, but doggedly stood still, and mockingly declared their readiness when the prosecution would produce the absent party. Was a juror unwell, and an offer tendered to have the testimony taken in his absence, and fully read on his return, it was rejected with contempt. And these scenes over and over again, when, too, the absent prisoner was 311 one whose presence could afford neither information or aid to counsel; and when, too, the testimony proposed to be taken in a juror's absence, was of that character which would lose no force in being read to him from the minutes of the court. Thus were we kept three long months; thus were you detained and annoyed a large portion of the time from Spring to Autumn; thus have expenses accumulated; the wheels of justice been clogged, and excitement kept up. So far as this defence had power or opportunity to effect it. And to subserve what purpose? Was it to gather from the tamaracks of Indiana the Hawley's and Dyers of this defence? Was it that the Rev. Billings might cement the bond of friendship between Adams an- his associates whose names stain or grace the annals of this defence? Was it that "cold inanimate nature" might be dragged forth from its easily found hiding place, to speak, not in the voice of discovered iniquitv and confession, but on the originally hoped for "thunder tones?" Was it that tone might permit the preparation of elaborate tables, and i:ngenious theories of defence? or was it, worse, than an all, that death might in some chance blow end the deep and sure perils of this trial? Answer ye. And let.counsel who have thus played this game with time, not now comllain, if all has proved in vain; if they have had to drink the poisoned chalice to its dregs, and if they have again learned the severe truth that jusl ice though slow is certain. Butfor these mostflagrant delays, consuming far beyond a full months time, this trial would have been ended long before serious disease or death overtook a single prisoner. Your verdict would have been rendered; these prisoners restored to liberty or confined to the penitentiary, where exercise, occupation, absence of uncertainty and excitement, and the fiesher air would have preserved them in wonted health and vigor. In view of these facts gentlemen, I ask you, how does it become the, counsel for defence to speak of delays, or to wake up the dead, whose ghostly shadows should strike terror to their own souls. And after all Gentlemen, perhaps, death although so feared and ter. rible, may even in its visitations in the course of this trial, have been kindness. Those whom it has touched with its fatal dart, are' beyond the perils of this scene; beyond the dark shadows which seem to gather around its end; and if prepared, as counsel in time for the dread change "after lifes fitful fever they sleep well." One can scarce look over this long list of defendants, and not sigh, that while yet in their childhood they had sank sweetly into their last repose, long before vice and crime had stained their youth, and subjected their manhood to this ordeal at the bar of their offended country. Then affection would have sung their last lullaby and kept their memories fresh in undying love. Now, God only knows their doom and their destiny. If that doom proves to be the Prison House, perchance the threats of vengeance, and the deeds of crime which have so long disturbed the nights, and desecrated the days of Leoni may cease. Punishment may effect its objects, security to mankind and reformation to the offender; and unadulterated good may ensue from this vindication of the laws. 3:12 But to return to the immedit te matter upon which you are to decide. The Indictment charges that the depot was burned by Geo. W. Gay, wilfully and maliciously, the other defendants being accessories before the fact. Was the depot burned by an incendiary, and was Geo. W. Gay that incendiary? It is necessary that the prosecution should adduce evidence sufficient to satisfy you that the fire was not the result of accident, but the act of Gay. It is claimed that such evidence has not, been adduced. Let us examine and see. I will not trespass upon your time by reading at lehgth the testimony as to the position of' the machinery, the condition of the depot, and the precautions taken to guard against.fire. By'reference to Ihat testimony, you will find that. all the machinery used was of the safest character; that no precaution against fire was omitted; that the building was so constructed, and the machinery so guarded that the superintendent, Mr. 3Brooks, a gentleman of vast experience atid judgment in such matters, deemed insurance against fire' unnecessary, and never did insure. You have the testimony of seven practical and experienced engineers and mechanics, experts; whose opinions are evidence, that in their judgment, the fire could not have been communicated ty the machinery. Listen to a fewof these opinions. Bear in mind that they come not only from experts but fiom men who were engaged about this identical machinery, and frequently examined it. Avery, page 21, tells you, "I do not think it possible for it, (the fire) to have taken from friction; that is now my opinion, and I thought so from the first." Frazier, page 20, says, "In my opinion there was no danger of fire from the friction of the machinery." Town, page 24, says, "In my opinion there was no possibility of itsso taking fire." Ives, page 25, tells you that supposing the pulleys to revolve two hundreds and fifty times a minute, which is proven to be their greatest speed, he thinks there was no possibility of fire from them-they would not generate fire whether oiled or not, and he considered this machinery the safest he ever saw. Mr. Brooks and others testify to tle si me. Several of the san e witnesses tell you that they repeatedly examined the journals, the only place where fire could generate, and never found them heated to any extent. Babbit's metal -constant examination —every precaution was taken against fire by the friction of the machinery, and it is really idle to dwell upon this branch of the proposition. The testimony is conclusive and utterly excludes the possibility of fire by friction. I will, however, call your attention to one other fact proven by Mr. Avery. There was but one pul'ey in the cupola, "and it r. n the slow( st of all." You will pe. eelie then, that if we hereafter show that the fire originated in the cupola, it; is idle to ascribe it to friction. Blt the counsel gravely tells you that Mr. Smith's mill was burned at Clinton. But turn to his testimony, ancd you find he says, "my experience is that elevators well constructed, and wellcared for, cause no especial hazard, but not well attended to they de." It was scarce worth while to bring Mr. Smith sixty miles. to tell us this. We were aware that elevators to be perfectly safe should be well constructed and properly attended to, and therefore gave you abundant evidence to satisfy you that this was so. [Here Mr. Van Dyke read and commented upon the testimony of Mr. Brooks and others, and proceeded.l 313 But conceding that the machinery was all safe, we are told that there was the, engine, and the fire might have been communicated by that. As matter of history the counsel told you there was a fire lately in Chicago supposed to have taken from an engine room, and read you a letter from the owner of the property, showing that his engine was placed and guarded in the same manner as the one in the Depot. Not a day after I received fromr Henry R. Williams, a gentleman well known to you, the letter which I now hold in my hand, stating that the owner of the property informed him he was satisfied the file did not take from the engine, but was the work of an incendiary. Neither of the letters, gentlemen, is proper matte, for your consideration, yet I am glad that the reading of the one called forth the other. It serves to warn us of the danger of going out of the case or paying the slightest attention to anything beyond the evidence. Now to return to this engine. What is it? Mr. Wood, page 26, says,: "I run a stationary engine; that is my occupation. I remember the fire at the depot. I run the engine at night. That night it stopped a quarter before 12. Tlhe fire, before I left, was allowed to run down; the engine was pumped and everything secured. To my knowledge it was not run again that night. Do not recollect that any locomotive came into the building thalt night." The only testimony upon this point, excludes the idea of the fire originating in the engine room. Here again, you will remember that if tlhe fire first appeared in the cupola, it could not have proceeded from the engine, as the latter was on the first floor. But it is said it may have have taken from candles hanging on posts, or used in the bins on the second floor. Here is the testimony upon that point. Duncan Stewart who had the superintendence of that portion of the building, says: "The workmen in the bins used candles in tin sconces. 1 was in the habit of going fiequently about the bins at night to see that my orders respecting lights were obeyed. I believe they were delivering wheat on the night of the fire. I never but once saw a candle fastened by grease to the wood. I went up as the man was doing it. I never, knew of its being done but once. I then stopped its being done. I had the nails placed for the sconces myself, so as to be out of the way of danger, and the men were not allowed to hang the sconces on any other nails." And Daniel Stewart says: "1 was there when the work ceased the night before the fire; there was only one candle used there that night, and I put that one out about a quarter before twelve." There was no fire then from candles. Another chimera has fled before the evidence. But it is said that it may have taken from sparks issuing from the engine of a locomotive, passing through the depot below, or of some steamer passing in the river. The answer to this is easy. Every person who could be found who was near the building that night; has been on the stand,and all say that to their knowledge there was no locomotive in the depot, and no steamer fired up near the wharf that night. There is no evidence from the defence to raise such a presumption-the evidence of the prosecution negatives such an 314 idea, and even if it did not, it is not for jurors to strain after imaginary and unlikely ones. The Depot then was burned, and not through accident. It, had long stood in its strengtll and usefulness. It was dedicated to a substantial and noble purpose; filled with the rich products of our soil, destined for the eastern market; and with the merchandize of our interior merchants. There it stood, a credit to our State; an ornament to our City. As we left for the East, it was the last sight our lingering eyes could catch; and as we returned, it was the first to greet our vision. On the evening of the 13th November, the autumn's sinking sun cast the shadow of this long and graceful building upon the rapid Waters of our river; the midnight bell roused us from our slumbers, and hastened us toward the fated spot; but long before we could reach it, we could read its doom in the reddened sky, reflecting back the lurid flame. That costly structure, and all the accumulations of labor, enterprise and industry it contained, were enveloped in fire; the morning sun revealed to our sorrowing eyes, a vast heap of smouldel ing ruins; and this, gentlemen, was the work of an incendiary. Who was that incendiary? Under the present Inrdictment, the prosecution was bound to prove to you that it was George W. Gay-and it has done so. But as all evidence on this point tends also to prove that he set the fire in the Cupola, it is necessary that I direct your attention to the proofs on that head. The prosecution does not wish, nor is it necessary to charge any want of truthfulnesss upon the witnes3ses produced by the defence to this point. Th6 testimony of the witnesses on both sides, is quite consistent;'there is neither necessity or propriety in imputing falsity to either. Some half dozen witnesses swear when they first saw the fire it came from the scuttle in the roof. Some eight others say when they first saw it, it was confined solely to the cupola —all agree that at some' future period, the fire was in both scuttle and cupola. The only question then is, which saw it first; and where was it then. Each witness for the defence states he was aroused by the alarm of fire. Capt. Turner it was conceded, was the first who gave the alarm; he then was the first who saw it; and he tells you it was then a bright blaze in the cupola, not larger than a half bushel. Mr. Savinac, at whose door he first knocked, tells you he came to the door undressed; looked out; had a view of the scuttle; there was no fire there, but there was in ths'cupola. Mr. Rowland an Engineer in the fire department, tells you he got there before any Engine arrived; as a matter of duty ascertained where the fire was, to enable him to locate his engines when they arrived; the fire was then in the cupola, and in no other place; but some minutes afterwards he perceived it had extended to, and came out of the scuttle. Police Justice Higgins tells you, he commanded a view of the fire from his window; when he first saw it, it was confined to the cupola; he watched its progress, and saw it extended to the scuttle. Mr. McFarrand testifies with equal certainly and clearness to the same effect. — So do the other witnesses for the prosecution, all of them gentlemen of the highest character and respectability. And what other conclusion can you come to, than that the defendant's witness speak truly; they tell candidly what they saw; but they did not see the fire 315 until a later period than the others, and after it had extended to the scuttle. As we review the evidence, we find that this point of the case looms up from it, clearly and firmly established. Was Gay the incendiary who burned the Depot? It has been sworn by four witnesses that he said he was; and that he set the fire in the cupola. But first look at the probabilities. Gay lived in this City not a stone's throw from the Depot; he was where he might do it. We were told in the opening, that credible witnesses would establish the fact that for three weeks before, he was not able to move without crutches; but it was not proven; there was not a solitary witness-not even from Leoni, who could screw his courage to that sticking point; they did not even produce the crutches-thoughli they were to be a part of the "mute inanimate nature." which was to overwhelm the prosecution. Gay then, could do it. He was familiar with the building, its construction, and its diffelrent parts; knew the hours and occasions when he could pass in, least noticed. He was just the man to be selected for such business. He was poor and needy. From early life, until he sank into the grave, he had revelled in scenes of licentiousness and crime. His name was a terror even among evil doers; he was shunned by the good-feared by the bad-an outcast with the mark of Cain upon his forehead. Did any desire to do a deed like this, Gay was a tool ready made and fitted to his hand. As somebody caused the depot to be burned, it is easy to believe that he was the tool used to do it. But there is still another item of evidence coming close upon direct and positive proof. A match similar to the instrument, (as I will hereafter show) by which this arson could have been, and in every probability was accomplished, was seen in his house, and in his possession. If murder is committed by means of a subtle and before unknown poison —if similar poison is found in the possession of a de. praved person, capable of the crime, who had an opportunity and a motive to do it, and no legitimate occasion for the drug, the proof is strong; there is little more needed for a legal, none for a moral conviction. — This is where we now find Gay; he could have done the deed; he was capable of it; a cunning, subtle instrument, well adapted to have accomplished it; and which is useless for any other purpose, is found in his possession. And you will bear in mind that. it is not only Phelps and Lake, but also Clark and Van Arman, who - prove Gay had a match. This is enough; but over and beyond it, you have th:- direct admission of Gay, made to the same witnesses. But you are told Gay was such a liar you could not believe him, even when he spoke the truth. You are told Gay is one of the witnesses for'the prosecution. There is no attempt to explain how the principalfelon is a witness for the prosecution. The defence give it to us as an axiom to be received, that Gay is a witness for the prosecution, and he is not to be believed. Gentlemen, I have heard some strong impeachments, as I have been through this cause, I need not tell you I have heard some ve-:ry weak ones; but I never heard of a liar so great as not to be believed when he confessed his own crimes. But you are told these admissions should not be in evidence; and counsel with the tone of dignified -and expressive indignation, desire that the extraordinary admission of these statements of Gay, may go forth to all the world. Let it 316 be known to a11 courts and lawyers, every where and in all time to come! "He spoke, and awful bends his sable brows, Shakes his ambrosial curls, and gives the nod, The stnmp of fate and sanction of the God; High heaven with trembling the dread signal took,,And all Olympus to the centre shook." As it has been sent forth thus, with high proclamation, I wish the explanation to follow that they were received without objection on the part of the defence. I confess I always had some shakings about these admissions, but they were taken without objection, and they were given to the jury, if as nothing else,as a theory; for over three months they have been before you; the prosecution closed their evidence and there was no motion to strike them out; the defence proceeded and closed, and still no motion. If they are there wrongfully whether as evidence or theory, the blame is not with us, and as it is clearly proven that they were made; and as it is manifest they are true, for no criminal, much less an old cunning and hardened one like Gay, confesses to crimes of which he is guiltless, you have only the truth and truth can work no injustice. liut gentlemen, the case is equally strong without them. Many of the defendants have confessed the same and I will hereafter show you that these confessions are so proven that you must believe'them. But again, gentlemen, if Gay burned the depot according to the evidence and theory of the prosecution, he must have done it with a match similar to that which was described to him by the defendants. But the counsel tells you a match so made and coanstructed cannot be made to burn, and this is presented to you as a full and perfect defence in itself. To this important point in the case I now invite your attention. I will treat it fairly, and I feel assured, gentlemen, that a close and candid examination of the evidence pertaining to it, will convince you beyond the question of a doubt that a match so made and constructed will burn and is most fiendishly suited for the felonious purposes for which we allege it has been used by these defendants. 1 will not ask you too perceive that I hold one match in my right hand, and another in my left. I will not produce to you a pistol and demonstrate that it is intended to shoot, not to carry slow trains; I will not load one with cotton and invite you. to fire it off; I will not produce a box of lucifer matches; I will not set fire to different pieces of cotton and ask you to look upon the smoke and inhale the odour: all this has been done by the learned counsel who has preceded me, and I am bound to admit, done with a grace and dexterity that might make Herr Alexander tremble for his laurels. I will perform no such experiments for you; they do not suit my taste, I doubt if they suit this place. I doubt if the counsel would have entered on their performance if he did not believe you were deeply impressed with the force of his quotation, "what we hear moves us less than what we see." But gentlemen, even it does not hold good here,you are to be moved by what you hbar. You hear the evidence, and if it come fr om a true and reliable source; you are to be moved by, and decide according to it. Such is your oath and so you will do. I do not, for a moment 317 mean to impute to the distinguished counsel any thing unfair. I am satisfied that he intended to practice no deception upon you; high and honorable as he is, the learned counsel would never abuse the practice, but humble imitators led into error by an illustrious example may seek to deceive the judgment rather than lead it by those rules which the wise and learned have laid down as the safest and surest guides to truth. Gentlemen, you are bound to take the law from the court, because it is a science which it has studied and mastered, but with which you are not supposed to be familiar. So also, upon other matters of science and skill, with which it is true you may be but,with which you are not presumed to be familiar, you are bound to receive the opinion of experts; not draw conclusions from experiments which may,even without intention be made the instruments of error or deception. I will now discuss the evidence upon this head. This course may prove less interesting; but it will better enable us to discharge our duties, and will, in the end, prove more satisfactory. I will first call your attention to the description of the match, in the testimony of Phelps. Speaking of his interview with Filley, at page 125, he says: "He described the match; said it was made of a block containing several holes lengthwise of the block, filled with combustible matter, and small holes in the centre, glazed or varnished, filled with turpentine, and sealed over, so when the fire was communicated through tile holes or chimneys from the other end, it would melt the wax, and communicate with the turpentine." As some question has arisen in relation to this portion of the testimony, and it has been differently stated to you, I will here ask the court to read to you that portion of Phelps' testimony, fiom his minutes. [The court read from his minutes, and Mr. Van Dyke resumed.] I am pleased to find, gentlemen, that the minutes taken by the court agree precisely with what I have read. We have got the description given of the match, and it only remains to inquire if a match made according to it, would burn and operate as we allege. We have shown you, by Dr. Desnoyers, that it would. It is conceded that the block used by Dr. Desnoyers, is identical with the one described to Phelps, and the one used at Niles; it is conceded that the match he prepared would and did burn; it is conceded that his match was made thus: the outer holes were filled with cotton, first steeped in a solution of saltpetre, and then dried-with a paper funnel running down the centre; and the centre and small holes, intended as a reservoir to contain the camphene, were lined with glue-this being done by the simple process of pouring the solution of glue in and out again. But the counsel for tho defence tells you this is not according to the description; he objects to the glue and the saltpetre, and says the evidence of Phelps excludes them, and requires varnish and camphene in their stead. The prosecution concedes that alining with varnish will not prevent the absorption of the camphene placed in the reservoir; and that cotton steeped in camphene will not answer for a slow match. But does the description given by Phelps, limit us to the use of these materials? Most certainly not. First, as to the cotton prepared with saltpetre. Is that a departure? He says, "combustible matter;" that is something easily sus 318 ceptible to fire. Does not cotton prepared in saltpetre conform to this requirement? Is it not "combustible matter?" If cotton steeped in camnphene will not burn, it is excluded by the description; forl Mr. Filley spoke of combustible matter that was tried; that hal burned; and in the efficacy and certainty of which, he expressed unbounded confidence. The cotton, then, used by Dr. Desnoyers, conforms to the deseription. BIut the counsel says there was a departure in lining with glue. Is this so? Does the description limit us to an experiment excluding glue? I think not gentlemen; in ordinary parlance the language is perfectly applicable to glueiig; bat if the lanouage was (,ver so inapplicable, it would not still exclude it. What was the end which Filly naid was to be attained by the glazing'? vou remember it without my referring to it; it was to prevent thi ca.mphine being absorbed by the wood; how ridiculous then it is to quibble upon the strict accuracy of Mr. Filley's language; what he meant by glazing or varnishing, and I do not care which 1word you adopt, was something that prevented the diminution of the camphine bv absorption. If varnish being soluble in camphine, will not effect that purpose, then he did not mean varnish. Whether his laniguage quite came up to the standard of scientific accuracy or not, he can settle with the distinguished Senator. He meant some. thing that would effect the purpose, for he said it had been tested. To come'within his description we must get something that will answver that purpose —varnish or anything else that falls short of that, falls short of what he described. We are are not confined even to glue; we have only to show you that there is material by which the result can be obtained, and as Fil. ley says, they (lid not obtain the result, you would be bound to presume that he used that material. How much stranger it is gentlemen, when we show you that glue, a common, cheap material, found in any house, used in the simplest manner, produces the desired effect. You see then that the match prepared by Dr. Desnoyers was made pursuant to the description given; it could not have been otherwise, for he was handed the testimony, and requested to guide his experiments entirely by it. And now, gentlemen, let us see if that match would be an instrument well adapted to the purposes for which we charge it has been used. You have seen these matches; they are of rough, unfinished design. Dr. Desnoyers tells you, "All the materials used are common in drug stores in the country." Yet he, an eminent chemist, tells you, "For the purpose of burning, I could make no improvement save t;) line the tube with metal." All his skill, all the secrets of that science in which he has gained an enviable reputation, he tells you could furnish for the incendiary nothing more certain than this match which you are told by counsel is no more fitted for burning than a lump of ice.. Dr. Desnoyers does not give you a hasty, inconsiderate opinion; he gives you the result of careful investigation and experiments, and tells you that for the theory relied on by this prosecution this. instrument is perfect. Practical experience has brought it to the highest perfection. Skill and science might essay, but inl vain to.improve it. He tells you that even the common shoemakers' wax, he found upon 319 experiment to be the best substance for covering the reservoirs of camlihene;-his skill suggested other substances, but this he found the best of all. This match, then, is admirably adapted to produce a fire. Look at the testimony, and you will perceive that it is no less admirably adapted to guard the safety of the felon. It is small, light, easily carried, and easily concealed. Witnesses who were present at some of the experiments, describe its operation. Mr. Ledyard says: "After a little all appearance of fire or smoke disappeared, and if I had not been aware of it I would not notice there was any fire. As the fire burned through the tubes there was no smell or sign of file. One of the holes was covered with wax, and after the fire burned through it melted, and camphene oozed through from the hole upon the shavings. Dr. Desnoyers was present. It was about 45 minutes from the time it was lighted till it burned through and fired the shavings." Mr. Larned says: "Several times we had supposed it had gone out, as there was no smoke at all; at the end of about 50 min. utes it burned through to the end." Mr. Webster says: "While it was burning through there was no indication whatever of fire, and we supposed it had gone out, but on feeling found it hot." Thus, you see, with a fearful instrument like this, the incendiary might go along unnoticed and unsuspected even while it was in his hands and consuming with its slow but certain fire. Mr. Ledyard tells you, "There was no smell or sign of fire." Mr. Larned tells you, "There was no smoke." All tell you there was no indicatiol of fire; and yet in the face of testimony like this from a learned and able chemist and gentlemen of the highest respectability, counsel burns cotton on.a table and asks you to view the smoke and inhale the smell., But the counsel says all else granted,'The match will not burn over an hour. Dr. Desnoyers' skill cannot carry him beyond that." Is this the testimony, gentlemen? You will remember that Dr. Desnoyers had. but a short time to experiment in. Every person knows that in matters like this, complete success is the result of time and long continued experiments. But what does Dr. Desnoyes tell you? "1 think it might be made to burn three hours." "I don't see how one could be made to burn forty-eight hours. I think to make one burn nine hours would be a doubtful experiment." "I have not carried my experiments far enough to state how long one might be made to burn." You perceive, gentlemen, that Dr. Desnoyers has done little more than commence his experiments. He says in another place, "I did not try to make one burn over an hour and fifteen minutes. I did not push my experiments beyond that." And even while you hold in your hands testimony like this-while still fresh in your ears, the counsel tells you the skill of a chemist could not make it burn over an hour and ten minutes. The first objection made by the defence was that the match would not burn at all. That was all we had to meet. That was the extent of the proof required, but in almost his first experiments, Dr. Desnoyers finds that he can, by varying the strength of his solutions, graduate the match to burn at will, from five minutes to over an hour-he sees clearly that he could make it burn three hours; further he has not looked or tried to go. If such results as 320 this attends the first efforts, can you assign the limits of nine, twelve, or twenty hours as inadmissible, by longer tubes or prolonged experiinents? Again, gentlemen, you will rememnber that these defendants are not destitute. ofchemical science. There is among them a chem'ist of no mean attainments, Dr. Farnham, who, in other portions of the evidence, we find using his chemical knowledge for the ends of this combination, and experimenting on a composition to be used in blowing up the cais. Who can say how many months he spent in experimenting, befor he brought this match to its present state of perfection? This review of the evidence, gentlemen, must convince you that this ground of defence —'the match would not burn"~ is utterly unsupported; the evidence answers it beyond all possibility of question. Before passing from this branch of the case, I must call your attention to the remarks of counsel in relation to the match which it was conceded did burn. You were told that this was "an after thought,"''a sub. terfuge," "a studied and deliberate fiaud on the part of the prosecution." Do suchi words drop becomingly from the lips of the distinguished counsel' Does he hope to blind you to the detected and exposed frauds attempted by the defence, by making wanton and utterly unfounded charges against the prosecution? In reference to this point of the case, "astudied and deliberate fraud" was attempted, but by whom? Call back the. testimony to your minds, and you will readily answer, by the defence. To say so is painfhl to me-the words rise reluctantly to my lips, but they are true, and charged as the prosecution has been, in studied phrases, I must speak them. Was it not an attempt at fraud to prepare matches from cotton and camphene only? try experiments with them in a private office? bring half a dozen men —nol a chemist amongthem —to swear to you they would not burn? represent that they were made in accordance with the description in evidence and exultingly exclaim and proclaim through the streets, that the pretended match was a farce? Was it not an attempt at fraud in the counsel, to tell you in his argument, that the evidence described the match as made from cotton steeped in camphene, and then dwell on the evidence that such would not burn? Where is the evidence describing the match as made with camphened cotton? Has the cou_,i referred you to it? Has he has even read it from his abstr:;t of evidence? Nothing of the kind. Not one solitary witness states anything of the kind. The counsel cannot now refer to it. You cannot find it in your books of evidence. I did expect that he would read somie such evidence; that some mistake in his minutes had led him into the error; but there is not even that, he does not refer to a single passage, he does not name a single witness —there is no such evidence. Contrast this gentleman with the course of the prosecution. When the question was presented they did not try experimento upan false materials in a private closet, and bring men, who though highly respectable, were not chemists, to swear to the result They at once went to the most eminent chemist in the State-a man, who even in youth, had stored his mind with the riches of sciencahanded him the testimony, asked him to ascertain if a "match made according to that description would burn as stated, and without another word left him to his researches.'hey placed him an the, stand, that 321:he might explain the materials he used, that you might know if he had *used any but the simplest, or which were not embraced in the description given, Was this subterfuge? Was this fraud? Has the prosecution-stated to you evidence that does not exist, and then based an argument upon it? Has the prosecution misrepresented or suppressed testimony upon any point? The charge of fraud comes badly from the defence, and will re-act fearfully upon it. The counsel tells you that the match, if placed in a close box, would be extinguished, and therefore Gay could not have carried it, as stated in a box. Doctor Desnoyers tells you: "f the match was placed in a tight box, the cotton might burn, but it would not set fire to the shavings." I now refer you to Gay's statement to Phelps, p. 10: "Gay reiterated his former story how he managed to fire the old depot. He went in while the hands were at work, went up stairs, and deposited the match in the cupola; placed the fire in the box before he left home, and when he left it, took off the cover." You see, gentlemen, when we refer to the evidence as it is, we find that every point raised by the defense serves but to strengthen the prosecution, and bring forth the inherent evidences of truth contained in almost every sentence. On the very first day of the trial, before any one thought of saying the match would not burn, Phelps tells you that Gay carried the match in a box; but he removed the cover when he left it in the cupola. Three months afterwards, Doct. Desnoyers tells you that. Gay might carry it lighted in a box; but if he desired it should fire the shavings when it burned through, he should have the cover removed and the air admitted. This, too, is drawn forth, not upon direct, but cross-examination; and I ask you, gentlemen, if in all your experience you ever witnessed so strong a confirmation of the truthfulness of a witness. In May, Phelps tells you the manner in which Gay fired the depot. Will it be said that he artfully added,'"left it with the cover off," to meet this unanticipated defense? If he anticipated the difficulty, he would have avoided it, by leaving out all mention of the box; but he told just what he heard, and well for him he told all he heard. A sudden point is raised by the defense. Science is invoked, and by its light we read that while a portion of the sentence led him into difficulty, the remainder led him forth again. Again, you are shown the match delivered to burn at Niles, and told that the cotton it contains will not burn; there is no saltpetre in it; no trace of glue on the reservoirs. Again, the answer comes forth from the testimony, and brings with it new and striking evidences of its truthfulness. Mr. Clark tells you that when the fire at Niles was extinguished, the match was put in the river, and remained there all night. Now listen to Doct. Desnoyers: "If a match prepared as I prepared those used, was in water all night, it would after, show no sign of the preparation, either in the wood or the cotton; the glue and saltpetre would be extracted by the water." A full answer to the point, and more too, gentlemen; for it shows that the match delivered to burn at Niles, and which held camphene for a night and a day, as proven by Clark and Van Arman, must 21* '322 have been prepared in exactly the same manner as those experimented with by Dr. Desnoyers. But the counsel says the cotton is not soiled by the water; and if the match was placed in the river all night, being light, it would float away. To these objections, the testimony furnishes me no answer. I will merely suggest that the pure limpid waters of the Niles river, are more adapted for cleansing than soiling; and that when Mr. Clark placed it-in the river, intending to resume its possession when entirely extinguished, it is not quite impossible he conld have taken precautions against its floating away. But the counsel says, although Phelps, Clark and Lake say this Niles match was ignited,and set fire to the shavings, there is no trace of fire on the cotton, or in the tube. Gentlemen, the evidence again answering, speaks also to the truthfulness of Phelps. You will remember that Phelps testified that before he set fire to the match at Niles, he poured two spoonfuls of camphene into it and then applied the match. Doct. Desnoyers says: "If camphene was poured round the touch-hole and fired, it would not show sign of fire in the tube." Camphene in the cotton, would prevent its burning while damp; but the camphene on the outside of the match, would of course blaze and set fire to the shavings in the box; and when they were extinguished, of course the cotton would show no sign of fire, which never communicated to it. I ili engage, at the proper time, gentlemen, to show you that Phelps' testimony must be true, but wish you here to note this. If Phelps was a false witness-if, as charged, the matches were his own fabrication, would he have sworn to you that he set fire to the Niles match, and yet produced it to you without a sign of fire within it? He wanted you to believe that he fired it; he wanted you to believe, that when fired, it would inevitably burn thro' the cotton in the tube; he might easily have singed a part of the cotton, but does not: he produces it to you without a sign of fire, without a word of explanation! Is it not again manifest that Phelps spoke the truth; that he was so conscious he did so, that he never even looked to see if the match he produced would corroborate or contradict his story? I am glad the defense were so ingenious about a match "not made according to the description;" for it called in the light of science and the result of experiments, without which, this Niles match would have been a stumbling block; but with which, it has become strong evidence of the truthfulness of Phelps. But counsel exclaimed, here is the match that was found at Gay's, and which was given to burn the new depot; it has not been in the river, yet it wont burn-there is no saltpetre in it. I perceive that by the printed report of the testimony, gentlemen, it does not appear' that the match found at Gay's, is a different one from that shown to Phelps, Clark and Van Arman, as the one with which he was to burn the new depot. This has doubtless led the counsel into his error. The printed report is in'almost every particular perfectly reliable; its accuracy reflects great credit on the establishment that published it: 323 but the occasional omission of words is almost unavoidable. I find by the minutes reported by counsel for the prosecution, that Phelps stated, on the firbt day, that the match found at Gay's house, (the one referred to by counsel,) was not the same shown him by Gay. As this is important, I will ask the court to read you their minutes. (The court read from their minutes; and it appeared Phelps testified the match found was different from the one shown him.) Mr. Van Dyke. You perceive then, gentlemen, that the match, found at Gay's, is not the one with which the new depot was to beburned. It was in another connection argued by counsel, that as the match was not found at Gay's on the first search, nor until Phelps insisted on a second and more thorough search, Phelps himself placed it where found. Having the facts, gentlemen, it is for us now to' draw the conclusions. As shown you by the counsel, during his experiments, the match found at Gay's, wont burn-the cotton is not prepared. I will, however, ask yeC to look at that match. You perceive that one of the fuse holes is burned to almost three times its original size, by repeated attempts to ignite the cotton; it was in this state when found. What is the inference? To my mind, it is' plain, that old Gay was endeavoring to learn the secret, and that this was a match he got made to experiment upon. It is remarkable that although Gay showed the match to Phelps, Lake, Van Arman and Clark, he never told them a word of the material that composed it; he was sure it would burn; it had burned; but he never said a word as to the material of which it was made. When they had his confidence so fully, doubtless if he knew, he would have revealed the' manner in which it was made. If Phelps was false, would he not have given the description as from Gay, as well as from Filley? We find Gay then possessed of the knowledge that these matches would burn, but ignorant of the manner of preparing them. Though cunning, he was illiterate. Dr. Desnoyers tells you, "when prepared with saltpetre, the cotton would show no sign of preparation to the' eye." To Gay it would seem simple cotton. He was a hardened" sinner-he loved crime for its profit, but he loved it for itself, too; any knowledge that could aid crime, was to him "great gain." And is it not almost certain that he would, under the circumstances, try to discover this secret, and experiment on simple, unprepared cotton? There is every thing to indicate this: the match in court was not the one received to burn; yet it is evident, that repeated attempts to fire it have been made. Either this theory, or the theory of the defense that Phelps made and placed it there, is the true one. Test the latter. If Phelps made it, he knew it would not burn; for whoever had it, tried to make it burn. Would Phelps, then, cause it to be found and bring it into court merely to stamp perjury on his testimony? He did not need its finding, to corroborate his'testimony; for apart from Lake, Messrs. Van Arman and Clark saw the match at Gay's, and to find this one, was quite unnecessary. Phelps insists on the second search. If honest, this was natural: he would say, "I saw the match-it must be on his premises —a further search will find it." This is conduct consistent with the theory of his truth; but: 324 f hle made the match, it was certainly taking very extra care to produce, what he knew when produced, would be a flat contradiction to his entire testimony. I have now gentlemen, answered fully the first distinct defence:upon which counsel relied. I hope I have kept my promise of an-.swering it not by sophistry but by a candid examination of the testimony. I feel you must be satisfied that " this distinct defence" is entirely disposed of. Incidentally I have also done much, I trust to -show you that Phelps is a truthful witness. If so I ask you to retain it in your minds. As anxious to be as brief as possible, I leave this ~part of the case and will not again return to it. Without pausing to recapitulate at length you will perceive gentiemen, that the following points are now established. There was a -combination among the defendants to injure the company, to if nes-essary for their ends burn the Detroit and other depots and that the -Detroit depot was wilfully and maliciously burned by Gay, by means of one of these matches placed in the cupola. I will now gentlemen call your attention to the "second defence" relied on by the counsel. It is by them insisted that the evidence -in this case shows that the matches produced were mad.e by Phelps.and Lake. if this were so, while I do not see that it would cosntitute a full defence, I feel that it would be a strong and important!point. But whether it would or not, bcomes quite immaterial as I;will presently show you. There is nothing in the evidence upon -which such an opinion can be based. As i review the argument of counsel on this head you will notice that it is constructed mostly upon inferences from assumed positions, which have been already overthrown. Thus he says, if the defendants made the matches, they inade them to burn; if Phelps-he made them to deceive; then assumes that they will not burn and hence Phelps must have made them. But you have seen that the matches will burn; and you have seen none; you have seen Phelps, over anxious to make the "one at Niles burn-poured Camphene in the fuse hole-did the very;thing that would prevent it burning, and afterwards produced the why have not some of the party confessed? why hasnot the material and tools for making them been found on some of' their premises? and counsel gravely adds, thread, paper, and cotton, are used in the formation of the match, but there is no proof of any ofthese, not even a leaf of paper having been found in any of their houses. Gentlemen there is no proof of any search for such materials; even if search were made, and successfully, it would add! nothing to'the strength of the prosecution. What are the entire tools and materials necessary? augurs, a plane, thread, paper, cotton, shoemakers wax, and saltpeter; things found in the house of almost every farmer; every one of which are indispensable to a farmer who mends his wagons and cures his pork. The only place searched was Fitch's house and there the search was in a safe for papers; if it were for any thing else you can readily imagine, that the house and premises of an extensive and wealthy farmer, and a' man of considerable public and private business were not destitute of paper, thread, and augurs, and even white wood, when we find that a fence of several hundred feet around his premises is partly made of it. But says the counsel, none of the defendants have confessed; if guilty, among so many some would confess. Gentlemen the prosecution has sought no confession, and even if it had, do the guilty always confess? sometimes they do; but do they always? It would be strange indeed to find them confessing, bound together as they were; associating in prison as'they did; the younger and tenderer, constantly under the eye of the more hardened; and with learned counsel giving bold assurance of acxuittal even to the last. So far you perceive gentlemen the second distinct defence amountsto nothing: it fades away before testimony without the aid of argument scarcely needing even explanation. But gentlemen I regret that we have not yet done with this head. Much skill and labor has been expended upon it by counsel, an ingeneous theory with dim and.. 326 distant views of evidence,!has been presented, and it is my duty to follow the counsel through the entire of his argument. He tells you this match smells of state prison; that it was invented there whiie Phelps was an inmate and he must have learned its principle and knowing how to construct, he probably made it. The testimony upon this point is as follows; Phelps 145 says: "Never saw in or about the prison at Jackson, any machine or contrivance for burning buildings. Never had any knowledge of such a thing about the prison; think Mr. Titus told me a convict named Houghton, had made a brass canon, which he wanted him to take to Washington and get patented. Don't know that I ever had any definite description of the machine or canon. Mr. Titus, the prison agnnt, says: "I remember a revolving cannon being constructed by Houghton; never knew of Phelps or Lake having anything to do with it:,Houghton showed me a piece of wood and with his pencil showed me the principle: in looking over a patent report I found the principle had been patented: showed it to Houghton, and it was the last I heard of it." This is the entire testimony, upon this point, and you see it repels all knowledge on the part of Phelps, of the State Prison invention, even if that invention at all resembled this match which is not shown; and yet on this you are gravely asked to presume that Phelps learned the act of making matches in prison, and continued to practice it when he left. To proceed. The counsel says before any match was seen by others than Phe'ps and Lake, they borrowed augers from Metcalf, which correspond with the size of the bores in the match; that upon their being borrowed Phelps takes his wife to Niles, leaving Lake alone in his house-that Metcalf called at the house, found Lake with closed doors; when he knocked, the door was only partially opened. Lake answered an inquiry and closed it again; that Cowdon also called, found Lake with closed doors, and working with saws, augers, planes and shavings, &c.-evidently making matches. Such gentlemen, as near as my memory serves is an outline-of the imposing syoposis given of the testimony. I must again read you the testimony at some length, as I am sure the full testimony will be more satisfactory to you. There seems fearful secrecy in Phelps taking away his wife-not even she could be there; Lake must be left perfectly alone in the house. You will remember however, Phelps was going to Niles and his wife had a relation there whom she went to visit: but Lake was alone in the house with closed doors. This is explained by Mr. Phelps, who says:'The fastening to our door was a latch and thumb piece, which often fell out if the door was shut hard." And again, on cross examination, " when the thumb piece fell it fell outside." Nothing very wonderful then, in the fact that Mr. Metcalf found the door closed and Lake inside: but the counsel would have you believe that he half opened the door and was unwilling Metcalf should come in. Here is the testimony of Mr. Metcalf, an honest man, and I ask you does it convey any such impression? On direct examination he says: Went to his house once to see Phelps in the spring: the thumb piece was out, and I 327 knocked. Lake came tothe door, and told me that Phelps had gone to his father's, and I followed and overtook Phelps, and did my business with him." On cr;s examination: "The day the thumb piece was gone, Lake came to the door and told me Phelps must be almost half way to the old gent.'s and I hallowed after Phelps. Lake opened the door about a foot-enough to put his head well out-I didn't ask or want to go in." His business was to see Phelps. Phelps was then passing out of sight, and there was no great secrecy surely in Lake not insisting on Metcalf's entering when he dind'nt want to go in. But how account for borrowing the augers? Phelps, Lake and Mrs. Phelps all say the augers were borrowed to mend the buggy and returned the same morning-that old Mr. Metcalf himself took them back. Mrs. Phelps says: "I remember the wagon being broken, and Phelps sending Lake to Metcalf's to borrow augers to mend it; the springs were broken and he bored holes and tied it up; we went to Niles that day; Metcalf came there the same day and took the augers home; Phelps told him we were going away, and to take them home." Now let us examine if there was great secrecy in the manner of getting the two augers. Was it designed or mere accident? Lake when recalled on the 30th of August, says: "Phelps once sent me and I borrowed some augers from Metcalf to mend his buggy. I told M. I did not know what size he wanted and he told me to take two or three-brought them to Phelps, he used them to mend the buggy-they were used for no other purpose. Am strongly of the impression that Metcalf took them home the same day." Mr. Metcalf says: "I don't know how many augers I had at the time: I don't recollect that L. did not at first know which auger to take, but I may have said to him to take more." Mr. Metcalf evidently remembers little beyond the mere fact that the augers were borrowed. At one time he thinks they were borrowed beforethe day he knocked at the door he tells you frankly that he may have said to Lake to "take two instead of one;" also, that, "he don't know if the augers were returned the same day they were borrowed." And yet, you are told this negative testimony-this I don't know-of Metcalf, must outweigh the affirmative testimony of these witnesses. We have still the testimony of General Heber Cowden; the gentleman who gets divorces without a witness, who saw Lake through a window on the north side of the house where you observe there was none, who saw Lake writing, at a bureau, while Mr. Phelps and Mrs. Metcalf tell you there was no bureau there; and who saw the shavings, the augers, the baskets,' the wood, almost the matches themselves. Far be it trom me to impute the least want of truth to the General. The brave are always truthful. He saw Lake through the side of a house where there was no window or crevice, and at a bureau when there was none. Scarcely credible. He saw planes augers and shavings, I will show that is scarcely credible- But the General is one of the keen sighted, described by Hudibras: "He must have optics sharp, I ween, Who sees what is not to be seen." 328 He does not tally with the other facts and the theory of the defence:..It was so necessary that Lake should be perfectly alone, that Phelps carries off his wife and child to Niles, and yet Lake carries on the deep mystery so unguardedly that every wandering vagrant who may happen to be strolling through the country, and every man who may wish to se6 Phelps at his house, has only to fling a peeping glance at the window as he goes by, and lo! the dread secret is discovered. You cannot forget the manner of this witness on the stand. His affected frankness, and yet his evident leaning for certain of the defendants; his unqualified certainty that there was a window on the north side of the house, through which he saw; his subsequent uncertainty of the same day: afterwards, his apparent confusion and manifest contradictions, would almost justify a suspicion that there were more here in the plot to charge these matches on to Phelps; then the tamarack witness from Indiana. What a farce! all this secresy ends in this; the first stranger who comes along is freely, admitted to see the entire. Cowden says Lake informed him Phelps had gone to Niles, and the solution of all the General's blunders, is that he called the same day, while every thing was in confusion, and Lake himself preparing to depart; the disorder of the house shocked his military precision and confused his ideas and led him into a fourth error. Is not this a charitable if not the true. solution? Lake, when last on the stand, tells you the day Phelps went to Niles, he left for Whittemore Lake, taking Phelps' horse and buggy with him and stayed until the day Phelps arranged to be home, some five or six days after. If this is true, it is absurd to prove that the augers were borrowed to make matches at Phelps, when there was no one there to use them. If untrue, how susceptible of disproof, for it would be impossible for Lake to have remained in the house and kept the horse and buggy during Phelps' absence, without the knowledge of the neighbors. The people at Whittemore Lake were also accessible, yet no attempt is made to disprove the truth of the statement that all the time Phelps was at Niles, Lake was at Whittemore Lake. The sum total, then, is this, there was no secresy, but sometimes the thumb-piece fell out; augers were borrowed, but to mend a buggy. If what has been said is not enough then:I will ask you to look at the match and the augers, and as maBy of you are skilled in such matters, you will at once perceive that these old augers never could have bored the holes in the match: though the same size, they are old and worn and never could have been madato bore these holes. It would have required a different instrument-what is generally I believe, called a bit, to have effect — ed the purpose. But there was a piece of white wood, found by Fenn under the hay in, Phelps' hovel. Whether a match could be made from it or not you can judge, and this was a portion of the inanimate nature, which was. to speak so loud. I venture to believe you are satisfied the matches never came from it. The concentric rings won't agree. You have, by consent of parties, examined it for yourselves; butastohow it came in the manger I have a word to say. Fenn and Lappin. 329 went there at the request of one of the defendants, Burnett. They admit that, when he sent them, he seemed satisfied their toil would not be all in vain —with every assurance he gave the command, "search and ye shall find." Strange, too, these searchers go straight to the hovel and call for a fork. Stranger still, as Mr. Moses Mletcalf tells us, he is a witness for the defence: " They seeed strongly impressed they would find somhthing. When he got the fork F. went right to the manger and in a few minutes found the timber. As soon as the fork struck, he said to tho Dr., I guess we have found it, and he drew it out. I did not see what it was, Mhen he spoke. I guess he did not search much after." No, they thus,.find a piece of porous dry whitewood, which they say had lain, at:]'ast, three months in the wet yet heated hay-and still there is not a stain of a hairs thickness on it. Now, gentlemen, adopt for the moment the hypothesis that the defendants, or some officious friend, like Parson Billings, had placed it there-is not this precisely the manner in which it would be found? There would be a certainty felt that they would find. Thore would be an accurate knowledge of the spot to find in, and an assurance, when the fork struck, before even the hay was removed, that, "they had found it." Truly, gentlemen, "who hides finds." But Fenn and Lappin say they did not go direct to the hovel-they first examined carefully the threshing machine in the woods, while Alfred Metcalf was geting a fork-but, unfortunately, this does not agree with Metcalf, who says he went to get the fork and his father: " My father was about sixteen rods off, but I did not go all the way to him. When I left I left them in the stable-perhaps I was away two or three minutes. While I was on the other side of the house I was out of sight of the stable.This was for part of the two or three minutes. I did not see them go to the woods. When I returned t supposed they were in the stable. I was two or four minutes gone. I went about eight rods and back. The threshing machine is about ten rods from the stable. They had not to my knowledge searched any place before turning out the hay." Now, gentlemen, having seen that the manner of finding the block raises the idea tht the block was placed there by some one at the instance of defendants-I will ask you if other facts, proven, do not repel the idea that it was placed there by Phelps? If he put it there it was to conceal it-yet goes off and leaves it to be discovered by the next occupant. But, not content with this imprudence, he takes measures to insure its being found, for Winm. Reynolds, a witness called to impeach Phelps, says: When he left Metcalf's he gave me some hay he left in the hovel-he came to me and told me I might have it. He so told me in April last." You have no direct proof who placed the stick there. You are, from other facts, to infer whether it is more probable that Phelps or the defendants placed it there. You have the facts and I leave you to draw the inference-regretti:g, however, that you have been 330 denied the evidence of Cooper, which would so materially aid you. In relation to cattle guards much has been said. I do not feel at liberty to trespass on your time by discussing a matter that the evidence has made so plain. The defence introduced many witnesses to prove that a cattle guard was broken and left at a crossing near Phelps' house, some of whom said that the block in question might be a portion of it; but H. H. Bingham and Wm. Wycoff, whose testimony you will remember, and who had charge of that portion of the road and passed over it twice a day, prove these witnesses must have been missaken, that there was no broken guard left there, that the only broken guard for miles along there, was one at another place, given to and taken away by another person. One word as to the testimony of Stow. He states that on the evening of the tenth of April Phelps went to the hovel and he, from the gate on the roadside; saw him through an opening in the side of the building bending over the manger. The design of this proof:s manifest-it is to imply that Phelps had the Niles match concealed there and went to take it away. Whether this witness is mistaken or has sworn falsely is a matter of indifference to the prosecution; that this testimony is not true, is obvious. That Phelps, after he left the premises and another occupant had entered, would conceal a match iu the manger of an open hovel, is too absurd to impose on the most credulous. And, in addition to this, their own witness, Alfred Metcalf, proves that, at the time stated by Stow, that opening was covered by a buggy shed, which would, of course, prevent the possibility of Stow seeing as stated. It is on a par with General Cowden seeing through the side of a house. I have now, gentlemen, reviewed the "second perfect defence." You see what it amounts to-that there is not a scintilla of evidence to sustain it-that it has literally no foundation in the case. For anything that appears in evidence there is just as much probability that you made the match as that Phelps made it. One word, in reference to Lake, and then I leave this " second defence" to your consideration. The learned counsel has, all through this branch of his argument, spoken of Lake as an "engineer," "a cunning worker in wood." You will not be misled by these terms. There is no evidence that Lake is either an engineer or worker in wood. Gentlemen, as the testimony of the witness, Henry Phelps, is closely interwoven with such portions of the case as yet remain to be to considered, and inasmuch as the chief strength of the defence has been put forth to impair it, it is proper that I should now advert to him, his position before you and the grounds upon which you are required to withhold credence from him-for you will not have failed to, perceive that, before asking you to rely on the testimoy of any witness I have shown you that he was unassailed or that though assailed, he was still entitled to be believed. You have listened to the bitter, I will not say fiendish, tirade which counsel have deemed it expedient to indulge in against this witness I concede to the advocate the duty of probing to the quick the tale 331 he deems false, and the motive he thinks corrupt. I concede the necessity of his laying bare td' the gaze of the jury and the world, the weakness of the evidence, and the mistakes or perjury of the witness. And when founded in fairness and justice, the earnest and truthful exposure will make the lieing witness to tremble and shrink before the indignant voice of justice. But if counsel deem it their privilege to wander from the truth-to conjure up from bilious fancy, or gather from malignant foes, details of crime not in evidence, in the hope of-blasting the reputation and wounding the feelings of a witness; if they suppose, that blessed with wealth and honor; standing in pride of place-"the glass of fashion and the mould of form," it is within their province to trample on the humble —point the finger of derision at his poverty-ridicule the features his Maker has given him-and as if all this would not make his flesh quiver enough, tell him of his dead children in the presence of their living mother, then the counsel who have done all this, and more, stand justified before you. But if fair men turn with distaste from rank injustice-if they discover that the picture is the mere offspring of excited hate, and shrink from its deformities, let not the artists complain of the reaction, or affect surprise at the scorn which consigns their master-piece to fester in unenvied notoriety. I declare to you, gentlemen, that the biography presented by the counsel who last addressed you, of the witness Phelps, is unwarranted by the facts before you, and discolored all over by the spirit and breath of calumny. I dislike to have to say that the assertions of counsel are untrue; yet I must negate them when not sustained by testimony. Time doe:, not suffice to state them upon this head at length or in number; but I submit to you that no more garbled and unfair representation has ever been made from testimony, than in this particular. It is not true that " Phelps went to Michigan Centre and bought a distillery and its stock, with drafts on a person who never could be found." It is not true that after removing to Milford, "his stock of goods was suddenly and mysteriously surrendered to the merchants at Buffalo." It is not true that his affidavits were questioned; his art in conducting trials questioned, or that "his reputation waned." But why follow out this miserable policy of trying to mislead an intelligent jury by infusing unwarranted prejudices, instead of convincing their judgment by truth and reason. The facts are, so far as we know from the evidence, that Phelps was born of decent parents; received ar, ordinary education; and came to Michigan, in early life, with an unblemished name; that kindly manners, fair ability and good habits, gained him friends and influence; that his energy, activity, and kind of business, did sometimes bring him into collision with others, and woke up unkindly feelings; but that, until the unfortunate event which led to his conviction of crime, there is no good cause shown for us to believe that his name had become blighted, or his character for truth suspected. He was charged with larceny. He protested his innocence. He was tried, condemned, and sentenced. Through all the long endurance of his imprisoned years, he yielded respectfully to discipline; 332 gained the good will of his superiors; still averred his entire innocence; and finally, on an investigation of his case, was freely pardoned by the appropriate power. If he sinned, most grievously did he expiate it. For years, he was shut out from the green earth, from society, from home and wife and child; from all that makes life desirable, to suffer amid gloom and sorrow. But the hour of grace came at last; one daylight streak broke from the long dark night, and the ransomed prisoner came forth, once more to look out on this beauteous earth. He turned to no haunted recesses of vice; he joined no wicked band; he participated in no licentious revels. He hastened, rapid as weary limb would bear him, to wife and child. He arrived at the door of his long lost home, travel-stained and worn, and oh! how must the weary pilgrim have felt as the blessed sight grew visible before his ardent vision; the threshhold was crossed; lais wife was in his arms; the bitter memory of infamy, the dark sorrows and sufferings of years were lost and vanished in hallowed joy, renewed hope, and united affections God's benison on the true woman, who, amid the scoffs of the world —amid its bitterest visitations and severest fates —amid absence and all that tries the soul and wrinkles the brow, proves true to the husband of her better years. Nor can I believe that he who excited such affection-who thus hastened to a virtuous homre —and who for years afterwards remained true to it, can be all evil. As for Henry Phelps, I will show you shortly that he is uncontradicted in any material respect; that he is not successfully impeached-that he is well sustained-that his story is natural, truthful, corroborated and marked all over with the evidences of inherent truth. For the present I beg to submit to you in all candor, that the attack upon his life, his family; his features and affections, is one of those bad mistakes which seldom emanate from any but a desperate and bad defence. You are told that Phelps is not to be believed because he is impeached. Is he impeached? One hundred and twenty-four witnesses were placed upon the stand, for the purpose of impeaching him, but did their evidence amount to an impeachment? I will ask the court to charge you, and I have no doubt they will charge you that impeachment cannot be based upon the knowledge of the impeaching witnesses as to any distinct untruth-nor upon any particular transactions-nor upon character and reputation for anything but truth and veracity-that the reputation of the man impeached must be so notorious as to be the general belief of his neighbors and associates. Anything short of this falls short of impeachment. One hundred and twenty-four witnesses were sworn to this point; it would be an endless task-an unpardonable trespass on your time to attempt to review their testimony. I do not believe that the case requires it-but I ask you gentlemen to recall the impression made upon your minds during the examination of these witnesses. I ask you in all candor, if in the entire one hundred and twenty-four, there were a dozen exceptions to the rule, that each examination was a 333 farce. One witness impeached him because he believed he feigned sickness to avoid labor; another because his heart told him not to believe a man who had been in State Prison; another, because he had for ten years judged character by the face-he was a practicle physiognomist, and Phelps' countenance strikes him unfavorably. Were not these things so? Did you not feel during its continuance that the impeachment was ridiculous? If you felt so then when the testimony was fresh and clear in your minds-when the manner and demeanor of each witness was before you, why not feel so now? Nothing has occurred to give to the impeachment a valadity that it did not then possess. I will however present to you a table of those witnesses; I will not call it a perfectly impartial one, because it is not-it is made more favorable to the impeachment than to the prosecution. You will remember that Phelps was over four years in State Prison —he was pardoned-went to the neighborhood of Sylvan and Sharon and resided there for over two years/prior to the commencement of these proceeding —although he went to prison wrongfully, although he was pardoned on the ground of wrongful conviction —still he was from prison-suspicions would hang darkly around him —apparent deviations from truth and probity which would pass unheeded in others, in him would swell into grave indications of depravity; —his was not the task oflpreserving a good reputation — he had to make one in the teeth of general prejudice. If, under such circumstances his truthfulness remained unquestioned for two years by the generality of his neighbors, you will admit he did much —that his walk in life must have been correct —that his character for truth must have been good. If there were during those two years but five men who had intimated ought against his truth, it would have run like wild fire through that community —man, woman and child would have heard it. The Court will, I have no doubt, instruct you that character spoken of since the commencement of this trial and growing out of his evidence in it, is to be disregarded, — a wise rule which prevents the perversion of justice by creating false reputation to destroy the testimony of witnesses. Now gentlemen, out of the 124 witnesses, the learned counsel admits there are but 27 who speak of his reputation since coming from prison, and before these arrests: by every rule of law and by every rule of sense, this is no impeachment —out of an entire neighborhood every man in which all seem willing to hound this witness on to infamy —124 of the most available are selected, and only 27 pretend that during these two years, his truth was ever questioned. They have brought all they could —every living man —from the man who would impeach for feigning sickness down to the man who impeached upon view of faces —every one that could breathe a word against Phelps, was here —townships and counties were ransacked, 124 were all who could be found willing to say a word against him, and of these only twenty-seven could come to the point. Gentlemen, I ask you can twenty-seven men under the circumstances in which they testify make a reputation,-is character so light a thing that it can thus be blown away? The counsel felt that his impeachment was a failure; 334 that it was not a legal impeachment, and although a lawyer he told you that the rest proved he was guilty or suspected of stealing wheat, horses, &c. &c., and forgetting that you were sworn to go by legal rules, claimed that these illegally formed opiniohs should weigh with you. Gentlemen, one word, as to the reason and wisdom of the rule you are asked to disregard. If it were allowed to impeach a witness because he was suspected or charged with offences —justice would require that he should be permitted to show the charges and suspicions unfounded; and in each case jurois would have to try not one, but one thousand issues; the wheels of justice would be clogged; causes could never be tried, or else all other business should be abandoned-the whole community being necessary to dispose of them. You see the wisdom and necessity of the rule. Now let us look to the fairness and justice of the counsel's request, that in this case you should give weight to the witnesses who impeached Phelps and on cross examination, showed they did so because he was accused or suspected of offences. You will find that six of the witnesses based' their impeachment solely on rumors that Phelpsstole Orman Clark's horses-twelve others entirely on rumors that he stole Butterfield's wheat-six others on the fact that he travelled from place to place without knowing of any particular business he had for so doingthree upon rumor that he pretended to own land in Oakland County-, and eight on rumor that he falsely pretended to have money to lend; there are plenty others of the same character, but these are enough to illustrate by. The prosecution stood prepared to prove these rumors unfounded-to prove Phelps stole neither horses or wheatthat he had land in Oakland county, &c. &c. On the 11th August we placed Mr. Orman Clark on the stand' an i asked him if Phelpshad stolen his horses, or if he ever suspected or accused him of it. Was the question put? No! Mr. Seward the counsel for the defendants who urged you to consider that if their witnesses failed to impeach Phelps for truth and veracity-they at least had shown you that he was suspected of stealing horses, and that ought to do against' his credit-this same identical and learned counsel objected, and the Court very properly held-that it was "true Drew (an impeaching witness) stated so, but as it was immaterial and not propper grounds to form an opinion as to truth, the testimony cannot be received. The testimony of Drew on this point being immaterial and irrelevant." You willl admit, then gentlemen, that there is candor and fairness in asking you to weigh against Phelps' truth, the proof that hestole horses! Shall I proceed with the'investigation of this impeaching testimony? I do not believe it is necessary. If you think it is worth explaining, you will find that the 27-the choice spirits who came up to the sticking Point, in almost every instance, admit disputes with Phelps and show themselves his bitter enemies. Get the 27, and it will recall the words so often sung in your ears-" Godfrey told me;" "Stevenson told me." You will also remember that not a witness could state a single offence or immoral act done byPhelps since leaving prison; here we had over one hundred of his 335 neighbors, selected as the ones who hated him, who would blast his reputation and place the brand of liar on his forehead if they dare; yet not one of them ever knew of his doing an illegal act or even an immoral one. A. says B. told him he heard and B. says A. told him back again, but not one says I knew he did it, and the witness who is on the stand to day " I knew he did not do it" is prevented by the counsel. Gentlemen, if the prosecution insisted upon the strict rule of law, not 20 of these 124 witnesses could have testified at all. But Phelps was a stranger to us; the defence said he was a bad man. If he was such we wished you should know it; he was an important witness in an important cause, and we wished that you should see him as he was. In your hearing we told the defence that we would not hedge them even by legal rules; that in this instance, we would. waive our rights, throw down the barriers, and let them follow Phelps' reputation at all times, and in all places, to the fullest extent; they availed themselves of the permission.' Their witnesses proved to you that it was rumored he stole horses; then they put up the bars (it was their legal right to do so) and we could not prove the rumor false. Yet they tell you that the prosecution has been harsh and oppressive. One word gentlemen as to the witnesses who sustain Phelps the counsel stated them at 118 they are only 101. You are told they amount to nothing. I will not trespass on your time, in reference to them; most of them are men known to you; all of them are men of standing and respectability; you are told they admit that they know nothing of his reputation. This is extracted from the expression they all use that they never heard his truth questioned; the best evidence that it was good. Is there one among them who was not acquainted with Phelps' neighbors or associates? Is there one among them who does not tell you that from acquaintance with the neighbors and associates of Phelps, and the people he did business with, they would know if his reputation was bad? Not one, such was the first question put; unless answered in the affirmative they could not testify, and you will remember that others were called, but the prosecution declined to examine those who said they knew Phelps' associates but slightly; none were examined but those who could say they had means ofinformation; men like Nathan Pierce who said he knew his neighbors; he had seen him at justice courts, heard him sworn as a witness, but never heard his truth questioned; like the Rev, Mr. Moulton, who says: "I am acquainted thro' the whole township;" like Wines who says: " I am well acquainted with the people in the Metcalf neighborhood;" like Sutherland who says he "did work for Phelps, and before giving credit, &c. inquired among his neighbors if he was a man who would do as he agreed &c.;" like Wm. Sprague who gave him a Captains commission but before doing so inquired as to his character, and says: "My object was to find if he could be relied upon as to statements he would make, and if he was suitable for the commsision;" like Rev. Mr. Madison who says: "I was among those who knew P. and heard him frequently spoken of, had an opportunity of knowing his reputation 336 there, never heard anything against his truth, would believe him, &c;" like Mallon Wines who says:' I knew P. in Sylvan, and knew most of his neighbors, well known through the town, sometimes thought I knew every man in the town, supposed his reputation for truth good, never heard it questioned till those arrests, would believe,:&c." I will not proceed-you will remember, gentlemen, that these are not selections, but fair specimens of the 101 witnesses whom, I am told, knew nothing of Phelps, and whose evidence is worthless. The counsel dwelt upon his reputation in prison, but you heard Mr. Titus, the agent, testify he was one of the most reliable men there. You heard Dr. Mowrey say he was on a prison committee, and inquired as to Phelps' character and conduct there, and found it so good he joined in the effort to procure his pardon. Before leaving this.branch of the case, justice to the absent requires I should call your, attention to one remark of the counsel-it may also serve to illustrate the fairness and candor with which he treats testimony. He told you, alluding to the sustaining witnesses, that (I use his very words): " One, Samuel Chadwick, says that he himself took his neighbor's watch clandestinely, and wore it until it was advertised and then delivered it up and demanded ten dollars, upon the false pretence that he had paid that money to reclaim it." A serious charge to make against a witness, a fearful one if it is falsely made, and against an honest man. The testimony of Mr. Chadwick, upon which this charge is made, is: "Mr. Merriman lost a watch in Jackson. I took it as a matter of joke between him and me, and came to Detroit for two or three days; when I returned I gave the watch to him. I did not tell him how I got it. I told him a man in Detroit gave it to me. Don't remember telling him I gave, or that the man in Detroit wanted 810 for it. Don't recollect telling him so, but won't swear I did not. He did not give me ten dollars. I didn't get the watch from a man in Detroit. I am very intimate with Merriman and others, and it is common for us to take each other's kerchiefs and things for joke. It was thus I took the watch. I intended returning it at once, but business called me suddenly to Detroit, and while I was away he offered a reward, and when I returned I went to his store and gave it to him, saying a negro in Detroit gave it to me. He is now my family physician, and we continue on good terms. I took it merely as a joke. Others have taken things from in a similar manner and returned them." I regret to detain you reading this testimony; but charaeter is a precious jewel. It was due to Mr. Chadwick, that as you heard the charge, you should hear the basis upon which it was made. I leave it toyou to judge whether the counsel acted well or wisely in making this charge. I have now done with the impeachment. I feel that as you consider the testimony on both sides of this question, you will come to the 337 same conclusion that I have-that the character of the witness rises from it, not weakened but strengthened. How few characters could have passed through such an ordeal, and come forth so slightly impaired. For weeks, agents have been scouring the country; whole families and neighborhoods have been brought here; the man who could say a word against Phelps-who could breath a suspicion on his fame, stood at a premium. No cost or effort was spared to procure him. And the result is, 27 enemies come upon the stand and say, from what they have heard, mostly each from the other, they would not believe him; 93 other enemies swear they would not believe him, but have no receivable reason for so saying; and 100 good and reliable citizens-men who know Phelps, and know what has generally been said of him, say they would believe him; his truth has never been questioned. I thank the gentlemen for entering on this field of inqutry; it has established the truthful character of Phelps; it has shown it so strong that ingenuity, activity, diligence, industry, perseverance, money, all united, could not destroy it. But the counsel tells you if Phelps is not impeached, still you are not to believe him, for he is contradicted in several material points. It now becomes my duty, gentlemen, to show you that Phelps is not successfuily contradicted in a single material point. I believe gentlemen, that I can show you by fair investigation of the testimony that he is not contradicted on any point. I feel certain that not I, but the evidence will convince you that despite the extraordinary and desperate means resorted to, he remains entirely uncontradicted or abundantly sustained as to every material thing he has testified to. It is my intention gentlemen, to take up and discuss every single contradiction of Phelps, which is alleged to exist. I will not take merely those which are most easily answered. I will refer to them all. I will show that in such as are material, he is altogether uncontradicted, or that there are such inherent evidences or corroborations of his truth that you cannot choose but believe him. 1. The learned counsel tells you that Phelps says he met Fitch in Jackson the day before Christmas, and at his request went the next (Christmas) day to the Centre; but that other witnesses prove clearly that Fitch was not in Jackson the day before Christmas. We admit that this is proven, but still there is no contradiction of Phelps; simply because Phelps does not swear as counsel says he does, and the contradiction springs not from evidence, but from a (perhaps unintentional) misrepresentation of it. I do not ask you to take my word for this, though I do trust that the candor I have heretofore evinced, would entitle it to some weight. I refer you to the testimony of Phelps p. 125, which says: " Saw him-(Fitch) next in about a week, on a Monday at Jackson, in front of Holden's hat store; had but little talk there. He told me the "boys" were going to be at the Centre the next day, and I had better be there; think he said he could'nt be there himself; told him I would go down, and did go." Again at p. 160, he says: "I cannot say whether it was the Monday before or the day before Christmas; can't say positively what day Christmas came on, but think it was Wednesday; am sure it was Monday I saw Fitch, and that I 22* 338 went to the Centre, Christmas; but I don't know if Christmas was on Tuesday or Wednesday." - A reference to an almanac will show you that Chistmas day was. Wednesday, so thatinstead of swearing he saw him the day before Christmas, the witness swears he saw him the day but one before Christmas, and swears further that Fitch then told him he was to be from home on Christmas day, a fact subsequently proven. Contradictions(?) like this, solemnly announced, must react fearfully upon the defence. This one is a strong corroboration. How could Phelps know Fitch was to be from home on Christmas day? Phelps tells you he, made written reports after each interview, to the agents of the Company. Why did they not call for the report of that interview, and see if he reported the Monday before Christmas that Fitch was to be from home; why did they not even ask to see the diary he had in court, and in which he said every particular was entered as it occurred? 2. The counsel says that Phelps testifies to Willard Champlin's having gone to G. Filleys, and there made certain admissions; and that Hart Holmes proves that Champlin did not go to G. Fi!leys on that occasion. But, gentlemen, by referring to the testimony of Phelps, p. 130, you will perceive he speaks of an occurrence about the time he, came to Detroit. (12th February.) Turn to Hart Holmes' testimony, and you find that he speaks of a period in March; again the time Phelps speaks of, they went to avoid some persons looking for stolen; property; but turn to Hart Holmes, and you find he speaks of an occasion when they went to a ball. This contradiction then vanishes, not before sophistry, but before the reading of the testimony. 3. The counsel says that Phelps could not have had the interviews he states with Fitch on the day of the 12th at the depot on his arrival and on the next day, when they spoke about fish. In reference tothe first interview, they rely on Holden, whose testimony I have already referred to in connection with Wescott. You will remember that Holden merely says that after he got his valise he went to tne hotel across the street and thinks he saw Fitch immediately after getting into the hotel. There is no evidence of how long he took, amid the. crowd and hurry of the passengers, in getting his valise, or how long he may have been in the hotel before meeting Fitch-while, on theother hand, Wescott and Mr. Doape, p. 121, prove that Fitch was at the depot the night Phelps got in, that he said he was waiting for some person, and that after the arrival of the cars they saw him speaking with some person. Doane says he cannot tell if it was Phelps, as he does not know Phelps. There is no doubt, then, of this interview; and though the counsel says the person he was waiting for was I. R. Brown,, there is no evidence of it. On the contrary, there is conclusive presumption against it, for on the 1'7th July the defence swore I. R. Brown to another point, but never asked him if he came to Detroit in February. Never asked him if he had agreed to meet Fitch here. If the fact counsel states to you is true-if Mr. Fitch was thus waiting for Brown-Brown came on the stand, and why did not they prove it? — In reference to the second interview, Phelps-p. 131-says: (Here counsel read the testimony.) And Mr. Sheeley, at p. 157, says, 339 (Here counsel read the testimony of Mr. Sheeley.) I now ask you, gentlemen, if in all your experience you ever knew of a stronger corroboration? Is it a got up corroboration? Mark the words of Mr, Sheeley. After testifying, as I have read to the same conversation as Phelps —I left them talking, and heard this conversation as I passed them; 1 never told of this or thought of it afterwards, until Phelps appeared before the grand jury, which brought the subject to my memory; I was a member of the grand jury; I think the shabby dressed man had his pantaloons in the tops of his boots; wore a cap, and I think had an overcoat." The conversation about fish might be trivial-if so, it only shows that Phelps tells all-not merely what he deems important, but all even down to the lightest minutiam-a feature that always characterises the evidence of a truthful witness, but is never seen in that of a false one. Truth is not easily impeached. We find that while Phelps by the fulness of his details exposes himself to numberless contradictions, instead of contradictions, corroborations spring up around every line of his testimony. They come even from the grand Jury room. The counsel in his argument relied on the testimony of the other Mr. Brown that ator near the same place he also asked Mr. Fitch about fish, and implying that this was the conversation Mr. Sheeley heard. I was somewhat surprised at this; doubtless, gentlemen, you also were, for apart from the fact that Mr. Sheeley recognised both Fitch and Phelps you will remember Mr. Howard for the defence stopped the further examination of Mr. Brown by saying they did not claim that to be the conversation alluded to by Mr. Sheeley. But the counsel tells you Fitch came to Detroit on business for Mr. Collier, and truly Mr. Collier did prove that; but yet there is something so remarkable in the evidence of Mr. Collier that I must ask you to listen to it. He says: "I did employ him to come to Detroit. I set no time for his coming, but he said he would come in one or two weeks. I wished him to come to make some investigation as to the origin of the fire in the depot at Detroit, and to see persons employed from his neighborhood who were in the employ of the company,among others Josiah Wells and Caswell, and others were mentioned whom he said he was acquainted with it, and who were at work for the company. My object was, I wished to recover from the railroad company pay for goods burned in the depot. I had goods burned in the depot. When I left home I had no idea of employing Fitch, but after I saw him I concluded to employ him. I left home with the intention of seeing Fitch on that business, and for no other purpose. When I left home I did not intend employing Fitch. I never met him before that time." If the prosecution had known of this testimony, they would certainly have introduced it. It strongly corroborates the entire theory of the prosecution. How came Mr. Collier, an entire stranger, to go and consult Fitch about the fire? After he saw him, how came he to send him here to investigate? Was a "country gentleman," living seventy miles from Detroit, the person likely to be employed on such business by a stranger? No. But when Collier saw him and learned his intimacy with Wells and Caswell, employees of the company, he e mployed him. You will remember that the defence has all through 340 disclaimed any particular intimacy between Wells, Caswell and Fitch; yet from their own witnesses we find Fitch procuring employment, to bring him around the depot,upon the ground of his intimacy and influence with them. How perfectly this evidence harmonizes with Phelps' testimony. If it is true, how natural it would be for Fitch to seek some business that would give him a legitimate excuse to see these persons and go about the depot? if it is untrue, how improbable it seems that Fitch would seek such employment, yet he did seek it, for till Collier saw him, he had no idea of employing Fitch. I do not claim that this is "conclusive," but I do claim, gentlemen, that the testimony of their own witness is more consistent with the theory of the prosecution than any of the many theories of the defence. 4. The counsel tells you Phelps says a certain conversation between himself, Corwin,Freeland, and Williams, at Coykendall's was interrupted by High saying, "boys what's the privacy?" High proves that he has no recollection of it.. Stid also says he did notsee Phelps at Leoni on the day of a horse trade, which is said to be the day referred to by Phelps, and so far there seems to be a contradiction. But is there such? If the thing is untrue how grossly improbable that Phelps would have said the conversation was interrupted by High, not a Def't, and who could be a witness; if false what need to say they were interrupted at all? how ridiculous to think he would name the person and furnish a witness to impeach himself. Nothing is more likely than that High would so interrupt a conversation at a public tavern and forget it. What was to fix it in his memory? A mere passing remark. Not so with Phelps; he was keeping a regular diary-the details of -every occurrence he has given, show how full and accurate a one; every trivial thing was fixed in his memory. It is almost as absurd to suppose that High could remember a common place remark made over six months ago, as to suppose that a man like Phelps would voluntarily furnish a witness, who if he were false would unquestionably prove him s0. 5. At page 128 Phelps narrates the substance of an interview between himself and Fitch at the Centre as follows: [Here counsel read the testimony.] It is claimed that Wm, B. Laycock disproves the possibility of this conversation having taken place. Here is the testimony of Laycock, [Here the counsel read the testimony.] You perceive gentlemen,that the two witnesses agree in many essential particulars. They argree as to an interview, and the time and place of its occurrence. They agree as to the persons present, Phelps, Fitch, Filley, Ackerson and Laycock. Both agree that there was a'good deal of conversation between Phelps and Fitch about buying and selling the oxen; the only pretence of a contradiction is that Phelps says they spoke of the Niles affair and the burning at Detroit, and Laycock says he did not hear this and that he heard all the conversation. "There is no pretence that W. B. Laycock ever belonged to the combination, therefore if such conversation did occur he would not be permitted to hear it. That is certain. According to Phelps, he and Fitch hlad agreed on $200 for burning the depot; the only thing remaining 341 to be settled between them was how much should be allowed for the cattle. Fitch asking $160, Phelps first insisting on $100 and afterwards offering to allow $120. At page 143 Phelps says, they spoke about the cattle in the ball alley "and afterwards had some loud or public talk about the price of the cattle but not in connection with the Niles affair." Is not this natural? Is it not the way in which the conversetionwould be conducted? Of the Niles affair and the old burning; of every thing criminal they would speak privately,but, as to the mere price of the oxen there was nothing to prevent their speaking aloud. It is manifest then that if the conversation did occur as Phelps states. Laycock's testimony would be just what it is. He would hear them chaffer about the price of the cattle, but would hear nothing of the criminal consideration. The only question is, can you rely on Lay" cbck's testimony that he heard every word that passed? Laycock tells you "he was no way interested in the trade;" that they were 15 or 20' minutes in the ball alley; and 15 or 20 in the bar room after Fitch came: they moved from one place to Ianother; the cars passed while they were there, and he went out to hold his horse; there was also some drinking; and yet without paying particular attention or anything, to require him to do so, he tells you he heard every word that passed.. He did not even join in the conversation. According to all ordinary experience the testimeny of Laycock is more a corroboration than a contradiction, for it is just such testimony as he would give if Phelps is true; but over and beyond all this, why should Phelps invent this tale? it is quite unnecessary; it implicates no one but Fitch, and Fitch is fully identified and implicated in half a dozen other interviews both by Phelps and Lake. Again Loycock says, "he heard every work spoken and has repeated all," yet all he repeats does not occupy over a minute in the delivery, and Phelps and Fitch were there over half an hour. Laycock may after six months imagine he heard all, and probably did hear all that was not spoken privately or in a low tone. 6. Ulysses T. Foster testifies that in the State Prison, in 1849, Phelps (pointing to Fitch, who was passing by) said: "He is the means of my being here; [ will have revenge or satisfaction." Calvin Beebe says that in April, 1849, when he announced to Phelps that a pardon had been granted to him, he replied: "I am in prisonthrough the influence of Abel F. Fitch and others. If I live to get out, I'll make them smart for it, and give them the same feed they have given me." Phelps said he did not recollect using this language; and we must meet it as we best can. I have not yet, and I will not now, seek to shake any testimony by charges,unless when I believe them well founded. I know of nothing against either Beebe or Foster. I see no reason why you should not credit their testimony. But it is remarkable, and I beg of you to note it gentlemen, that altho.' by the course of examination you were given to understand that Phelps would be contradicted in material matters, relative to which he could not be mistaken or forgetful, the contradicting witnesses were never called, or when called the transparent falsity of their testimony, worked evil not good for the defence. To these matters I will have"to call your attention at the proper time; at present I have to deal with the testimony ofFoster and Beebe; and show you that much as it has been harped up. 342 on it amounts to but little or nothing. It is material only as indicating, malice or want of truthfulness in Phelps. If the words were the ebulition of sudden feeling, passing away leaving no festering malice behind, andforgotten when they passed from the lips that uttered them, they are utterly immaterial-divested of malice they are immaterial of thtmselves-forgotten there is no want of truthfulness in denying their use. Was there malice? Gentlemen, embittered words do not always spring from a heart boiling with malice or revenge-they are often the offspring of indignation or erroneously conceived opinions. In the latter case cooler moments, or the correction of the error wipes out every trace of their existence; in the former the revengeful seed continues to send forth its natural fruit, and unceasingly betray its existence. How is it in this case? You know enough to be aware that Phelps believed that he was wrongfully imprisoned-that the executive concurred in that opinion and pardoned him, but for four years his tears had moistened the bread of a captive; for four years he had toiled within the gloomy walls of a prison, was it not natural-was it not humanthat as he thought of his home his wife, his child, the sunlight that was denied him, and the pleasures beyond his reach, that his heart should frame and his lips utter bitter curses on the man whom he deemed had wrecked his every hope in life? But was Abel F. Fitch tnat man? No! for at page 143 Phelps says: "Mr. Fitch was a witness for me when I was convicted and sent to State Prison, he was called to impeach a witness against me, and did it the most liberal manner; he took a decided interest in my behalf; I never had an ill feeling against Fitch, and never had any difficulty with him." If this was not true, why-was not Phelps contradicted? If Fitch was not a favorable witness why has it not been shown? It difficulty ever arose, why is it unproven? If Phelps entertained malice the only cause assigned is for aiding in his conviction —that is its nature, its reason, the one sole cause embodied in his threat. It often happens that the captive hears false accusations against his best friends. If they are breathed in his ear after four years of unmerited punishment, when the heart is crushed and the feelings morbid, they are readily received and believed in, and while they last excite bitter emotions. But if the accusation is false,'tis soon corrected, and bitter feelings are forgotten. The whole course of Phelps' conduct after he left the Prison- shows that such must have been the case bctween him and Fitch. He went to Prison in'44, then believing Fitch his friend, knowing that he was active to procure his acquittal. Every friend that visited him had some suspicion to breathe against one person or another; and during these four years he had probably accused a hundred persons as the instiuments of his incarceration. It finally became Fitch's turn to be suspected-he was suspected. And while suspicion existed the threat was breathed "he is the means of my being here." "I am here through his influence, and will give him the same feed." Perhaps the words of the next friend that visited him, or the next moments ieflection on Fitch's favorable services at the trial, erased the suspicion, and blotted out the hasty anger it engendered. This is no improbable hypothesis, and it alone is reconcilable with the facts and af 343 ter conduct of Phelps. He suspected Fitch wrongfully, that is con. ceded, for was it otherwise, there could be no excuse for counsel failing to prove it. Phelps' conduct shows that he corrected this erroneous suspicion. For two years after coming from prison he lived within 8 or 10 miles of Fitch. Does he attempt to do him any injury? No. Does he during these two years breathe a threat, or lisp a syllable against Fitch? Not one. It is only after a lapse of two years that we find him near Fitch, and then at his own house, by his own request.Can it be believed that malice festered in his heart during these two years, and yet while hundreds of his neighbors, and daily associates, have been on the stand, there is not one who ever saw or detected the slightest indication of it.'Tis an absurdity if not an impossibility.Again, if the the threat sprung from hastily assumed and as hastily abandoned suspicion, Phelps might easily have forgotten it, but if from deep enduring malice that could burn and glow and live through two years, without food or ottward indication, he could not have forgotten and would know that two truthful witnesses would contradict him. In such a case how easily this man (described by counsel as possessing the cunning of a devil) could have broken the force of the contradiction by " I once suspected him, and may have said something of the kind," or one of a hundred other such sentences. 7. At page 122 Phelps gives an account of an interview with Fitch at his barn in the month of December, as follows. (Here counsel read the testimony.) On cross-examination lie states that on this occasion he went to the Centre with some of the Lacocks, and after it returned to Lacock's. It is claimed that his account of this interview is contradicted by Morgan S. Lacock, H. T. Lacock and C. Blackburn, whose testimony I read. (Here counsel read portions of the testimony.) You perceive that about the fact of an interview there is no difference. They all agree that on that day Phelps went to the Centre, and that after he arrived at Filley's he went alone to Fitch's for the purpose, as he said, of seeing him about the oxen. So far the witnesses all corroborate each other, but Pnelps said he was two hours at Fitch's and it is claimed the other testimony limits the time he was at Fitch's to half an hour. Now all that Phelps has narrated might pass in less than half an hour, and it is scarce a contradiction to find a witness mistaken when he gives an opinion as to the duration of an interview. Even the witnesses who are claimed to contradict him, in this respect contradict each other, for they each assign a different hour as the time when they returned. Your own experience will tell you how seldom, even, persons present at the same interview will agree in a statement of its length. The counsel is mistaken in saying that Phelps said the interview was in the afternoon. I have looked carefully over his testimony and find no such such statement. If Phelps had noted his interview with a time piece, and the others had done the same, and then differed materially there might, be an excuse to claim a contradiction, but none of the parties appear to have had watches. There is no reason assigned why any should note the lapse of lime; they all give their impressions six months after the occurrence, upon a matter 844 which of all others would be likely to involve an honest difference of opinion, and which is utterly immaterial. 8. Of a similar character is the pretended conversation between Phelps and his wife at the house of W. B. Laycock. Laycock says that after they went to bed Phelps and his wife whispered over an hour and Phelps said aloud "if W escott does as he agreed I will come a good drive on Fitch;" he tells you that altho' they whispered over an hour, this was all that was spoken aloud; he tells you they all slept in the same room, their beds almost touching each other and that Phelps was aware he was there. The absurdity of this story is an answer to it, for it is utterly absurd, to suppose that a man entertaining the designs imputed to Phelps would thus reveal them. But to set the matter at rest we placed. Mrs. Phelps on the stand, and she, as you heard, denied that there was any such conversation. Laycock also, says that on his return from the Centre Phelps said he "would have Fitch in the limbo for not selling him the cattle," and this is no less an absurdity than the other. The counsel stated that even the wife of the man, Phelps, would not swear certainly that the conversation did not occur, but only she thought not. (Gentlemen all you have to do is to turn to your books, read her whole testimony and detect this misrepresentation. 9. The learned counsel says.Phelps contradicts himself by saying that when he saw the match in January at the Centre he told Fitch and Filley he had seen a similar one at Gay's; when in another portion of his testimony he says he did not see the one at Gay's till February. I refer you to the entire passage in Phelps testimony, page 148 and you see he is guilty of no such blunder. "When the machine was shown me at the Centre, 1 told them I had seen one like it at Gay's; saw it at Gay's house on the night of the 24th of February, in a small bedroom, on the left hand, up the first flight of stairs." The entire sentence shows that he referred to a period subsequent to the 24th February, probably to the time when he got the Niles match., And these were the fatal engines which were to destroy Phelps! I have now gentlemen, gone thro' with all the alleged contradictions of Phelps' so far as my minutes of, the counsel's argument can suggest them, with the exception of those pertaining to the eleventh of April, and which will be more conveniently treated of, as 1 proceed with a review of his testimony. By grouping all of these pretended contradictions together, I have placed them before your minds in the strongest light, and I ask you what do they all amount to? There is not one among them of much materiality, even if the contradiction'was established, and such as they are the other evidence explains them away. You remember the general outline of Phelps testimony; you remember its length; the variety of its details; the number of its incidents; the almost numberless places and interviews it comprized; you will perceive at once that if false lie exposed himself to material and substantial, and essential'contradictions at every step, yet no such contradictions have been shown. When a witness deposes to such a quantity and variety of matter involving so many occurrences and in 345 dividuals it would be strange indeed if some were not found whose recollections would differ from his as to the hour, the date, or some such immaterial matters,and these are the only points on which a contradiction is attempted. To find the substantial portion of a witness's testimony remains uncontradicted is always an evidence of truth which cannot be overborne by a difference of opinion between witnesses in matters immaterial to the issue. Having thus, gentlemen, I trust to your entire satisfaction, shown that Phelps stands before you unimpeached by general character or contradictions, I will, for a moment, call your attention to those matters wherein he stands uncontradicted, notwithstanding that, either in the opening for the defence, or by questions put to him in the usual form for impeachment, the defence intimated their ability to contradict him. These matters will also serve to illustrate the difference between material and immaterial matters. You were promised, in the opening, that proof would be adduced that Phelps and Lake while in prison, entered into an agreement that when they got out, they would make fortunes by burning buildings and swearing. the crimes on to innocent parties. No such proof has been offered. At page 145, Phelps was asked if they had not entered into that agreement; he denied it, and no attempt has been made to contradict it. When recalled for cross-examination he was asked if he had not, in September, tried to hire John Hawley to aid in burning the Detroit depot, and swearing it on to those who had cattle killed, promising him $50 and a portion of the reward-he denied it. Hawley was sworn, and testified he had so tried to hire him; but in a few days after, stung by the restless gnawings of remorse, he begged to be recalled upon the stand. He was again placed before you, pale and trembling, and confessed that his evidence was deliberate perjury, to which he was suborned by Billings, the friend and partizan of these defendants. The same Mr. Billings who, by turning to page 98, you will find was to have impeached another of our wit. nesses, if the fate of his pupil Hawley had not warned him that the moment he appeared in this county, he would be placed in the custody of the law until he had expiated his crimes. At page 159, Phelps was asked if he had not tried to" hire George Lynx and Andrew Barney, for $200, to swear that Lemn had fired the depot. He denied it; yet no Lynx or Barney appeared to contradiet him. At the same page; he was asked if he had not tried to hire Bildad Bennett to swear against Fitch, Burnett, et. al. He deniedit; yet although all through the trial actively engaged for the defence, no Bildad Bennett appeared to contradict him. At page 150, Phelps was asked if he had tried to hire Smith, by letter and personal application, to go out and get acquainted with the defendants in order to swear against them, or to swear Lemn burned the depot. He denied it; yet there was no attempt to contradict him. On July 15th, when recalled for cross-examination, he was asked if he hal not tried to hire Cooper to rob the depot safe. He denied it, but charged that Cooper tried to seduce him into the commission of 346 crime, that he might be arrested, and that even one or more of the counsel for defendants were cognizant of the plot. Mr. Cooper was not produced to contradict him by the defence, but at much cost and trouble the prosecution brought Cooper from his hiding place, placed him on the stand, and the defence availed itself of technical grounds to exclude his evidence. On July 14th, he ivas asked if he had not said to one Dyer, that he was bound to break up Fitch and his band, even by false swearing, and to have revenge. He denied it. Dyer was placed upon the stand, and it was claimed, contradicted him. But when Hawley was arrested Dyer disappeared; he did not even wait for cross-examination, although his evidence was important enough to justify the trouble and expense of bringing him from Indiana; it was deemed more prudent to assent that it should be stricken out, than that he should be produced for cross-examination, and arrested for wilful perjury. On the same day he was asked if he had not solicited Miss Merwin to go to Fitch's and leave counterfeit money on his premises. He denied it. Explained that his only purpose in going to Merwin's was to ascertain for the sheriff if she was not living in a state of incest with her father; and yet, although as appeals by the confession of Hawley, Miss Merwin was in town, brought here from Indiana to impeach him; she is never produced. I might with little trouble add to the list of important contraditions that were shadowed forth and promised, but I have given you enough to exhibit the marked contrast that exists between those attempted and thoseleft unattempted. You will perceive that if the witnesses named in the list of questions I have read were produced, and contradicted Phelps, their testimony, if believed, would have gone far to establish the whole theory of the defence. It would have shown Phelps and Lake conspired to burn buildings, and swear their arsons on to others. It would have shown Phelps, in September, plotting the burning of the depot, with the design of charging it upon these defendants. It would have shown him on divers occasions, suborning witnesses to swear falsely against them. It would have shown him expressing bitter malice and hatred against these defendants, and Fitch in particular. In a word, gentlemen, it would have come up in letter and in spirit to the evidence promised by counsel in their opening. But it is all abandoned, and in its stead you are offered a few alleged contradictions upon matters without the case, totally immaterial in themselves-of a character where honest witnesses are frequently mistaken; and even these arising from a mistaken view of the testimony, or an-.swered fully by their own inherent improbability. And now, gentlemen, that we find Phelps unimpeached, and uncontradicted, without falsehood on his tongue, or malice in his heart, how is it with his testim ony? If we find that it is sustained page by page, and line by line, by other witnesses, with whom he could by no possibility have collusion; if we find it natural in itself, devoid of all improbabilities, and dotted over with the inherent evidences of truth, I will feel every assurance in asking you to receive it-as true. It may prove wearisome to an audience, that I should go over, even hurriedly, -the testimony of Phelps; but 1 am convinced it will not prove so to 347 you; anxious as I know you are to do your duty, fairly and faithfully, and render a verdict that your consciences will approve, you will cheerfully endure every dull detail, that may the better enable you to come to a just conclusion. As we pass over the important portions of his testimony, you will perceive that it is fully corroborated, and that if false, a hundred doors are opened for contradictions upon material points. You will, I have no doubt, come to the same conclusion I have arrived at, that from the very nature of his testimony, it is quite impossible that he should be at the same time untrue and uncontradieted. He testifies that in December he had an interview with Fitch at the Centre, in which Fitch proposed to him to burn one or the other of four depots; that he wanted it done by some shrewd man, &c. Wescott proves that the same proposition had been made to him, by Fitch; and Loud proves that Corwin, who with Fitch, I have shown you was clearly identified in the combination, intimated that there would soon be a fire at the Jackson depot. McMichael and Morgan Wescott also prove the intentionto burn the Jackson depot; and Dobbs proves the proposition on the part of several of the defendants to burn the boats of the Company. We have the same designs and intentions on the part of the conspirators, of which Fitch was undoubtedly the leader. And why should we doubt that the proposition was made to Phelps as he states. The fact of this interview having taken place, is proven by their own witnesses, though they differ as to the time of its duration. Again, he says, Fitch urged upon him that he was already ruined in'the eyes of community, and that if he went into their plans they would place him in easier circumstances. Are not these the very reasons that would present themselves to such a man as Fitch, to tempt one who had once borne the badge of ruin and disgrace? You are told it was not likely that a country gentleman like Fitch, " would thus commit himself to a pardoned convict; but you will remember there are a host of unassailed witnesses who prove that the heart of this country gentleman was filled with malevolence against this road; nor will yoq forget the actual intimacy between Fitch and Phelps so fully proven.It is certain that if Fitch did not actually participate in, he knew of and encouraged the perpetration of injuries against it, far more fearful in their consequences, than the burning of the Depot. The country gentlemen whose rural sport it was to obstruct trains, and according to his own confession, to arm savage boys with pistols to frighten engineers and passengers," needed other hands than his own to work out his designs; and i ask you was not Phelps just the man he would select. He was shrewd, sober and intelligent; he might readily be supposed to lave a morbid hatred of the world, but above all he had been a convict; the brand of crime had once been stamped upon him, and if he dared betray, he could be crushed. In the words which a dozen witnesses have given you as the language of these conspirators he could "be sworn down." Again you will note that in this interview, no confession was made of the past arson; it was only afterwards, when Phelps seemed caught by the tempting bait, and firmly hooked, that he was admitted to full confidence. Again he says, Fitch said the road was a curse to the community, 348 and he and others had determined to see the people's wrongs righted; the Company had already been injured, and they desired to go farther to bring them to terms. If not from Fitch himself, where did Phelps learn this language; this straining to throw the garb of heroism and public spirit, over fiendish crimes; thus ascribing lofty motives to the burning of Depots, and the murdering of women and children. That they were Fitch's sentiments, there is no doubt, for so precisely, he expresses himself Attorney-General Lothrop, to Wm. Gibson, to Wm. Galespie and others; witnesses from whom Phelps could not have learned them for he had no communion with them. The most important interview to which he testifies is on Christmas day at Filleys;- he says Filley said he thought Fitch would give the oxen' and the balance of $200 in cash if I would burn the Depot at Niles. You will note gentlemen, the consistency of this testimony,with that vhich has fallen froma hundred others. Brown told you they used to call Fitch Captain; when the proposal was made to Dobbs, Fitch was referred to as one who would pay; so McMichael says Fitch's name was used as an inducement to him to burn Jackson Depot: Wescott p. 43, says, Barrett said Fitch could always clear them; again Welling said Burnett told Fitch to stop the obstructions; but Fitch said he had advised the boys not to get caught-all indicating that Fitch was the man to pay the leader. And here again, with the harmony of truth itself, "Filley thought Fitch would give me the oxen and the balance in money."And so, gentlemen, you will find it through all this testimony of Phelps; lengthy and minute as it is, there is not a word that clashes with the evidence of the 100 unassailed witnesses who have been sworn. He says at this interview, Filley told him they had sent a match to a man in Detroit, to put in the cupola, described the match, &c. Here gentlemen, is the first confession of any connection with the fire in Detroit; by reading the full testimony, you will perceive that on on this day, E. Price also confessed to an aiding in the arson; and you will ask yourselves how strange it is, that while it is claimed that malice to Fitch was Phelp's great motive, he passes him by and identifies with the burning, two men against whom there is no pretence that he ever entertained a particle of enmity. You will also notice that while Corwin and others join in the conversation and urge him to undertake the Niles matter and other crimes against the road, he does not place words in the mouth of any one of them, save these two, that could implicate them with the arson. You will also perceivethat at this early date he located the fire in the cupola. The importance of this is, that although when the persons who first saw the fire were hunted up and brought upon the stand, it was made manifest the fire was there; yet there were many who until then, would swear it was not. It was only the strict tests of oath and cross-examination, that established where the fire first was. You will bear in mind that Phelpsis not shown to have been acquainted with the witnesses who have here proved that the fire did originate in the cupola; yet Phelps was told by defendants, that the match was there placed, and he reported the fact to the Company. There is also strong corroboration to the truth of Filley's confession of his participation in the arsonMr. Sutton and Wm. Morrison, p. 108 and 9, say-Filley speaking of 349 the burning of the Depot, said "I suppose they will lay it to me, God damn them; I will show the Company I can burn out here as well as down there." So far as Ammi Filley is concerned, we might dispense with the testimony of Phelps aitogether. Coming from a man engaged for years with outrages against the Company, and who had threat. ened to burn, and who as half a dozen men prove, gave the Company credit on the burning; this language to Suttonand Morrisonis a confession in itself. How natural it is that Filley who spoke so recklessly in a grocery in Jackson should be the first to entrust the secret to Phelps. The next interview that Phelps testifies to, is, that at Palmers; where he states there was some conversation relative to Lacock's turning spy, and his having received pistols from Fitch to shoot at the cars. It is claimed that C. Blackburn swore this conversation never occurred.Phelps named Blackburn as one of the persons present, and yet he does not from the beginning to the end, swear to a single word against him. Now if Phelps was swearing false, how easily he could have given some admissions to Blackburn that would at least seal his mouth as a witness. Yet although at one time Blackburn was a defendant, Phelps passes him over; does not attribute a single word to him, but leaves him to be discharged by the Court, and become a witness.Again you will note how accurately he details all about the pistols given by Fitch, and how perfectly it corresponds with the truths that werethen known only to a few, but which have since been revealed before you. You will bear in mind that this Blackburn was an idle, heed. less boy; and that it may readily have been that he did not hear all that was said. The next important testimony of Phelps is his interview at Leoni with Williams, Freeland, Corwin, and Price. Among other things,he says, plans were suggestod to get rid of Wells and Laycock who had gone into the employ of the Co., aid Williams said, "you knew I was the means of the cars being thrown off altho' I was il bed." This you will note is early in January; but see how it corresponds with the testimony of other witnesses, some of them discovered since. Wolliver says It was done by Filley and the Prices; yet that Williams had apart in it is shown by Wescott who saw money paid to him on account of it. Williams afterwards explains to Lake that he remained in bed to be a witness and prove an alibi for those who did it; and Henry says when that obstruction was spoken of, Williams said "they couldn't lay it to him for he was in bed." He further testifies that in this interview Freeland and Williams admitted the payment of money towards the burning in Detroit. Refer to the testimony and you can have little doubt that this is true. — Corwin told Loud "mark my words there will soon be a firehere," at the Jackson depot. He tried to induce McMichael to burn it, and he was one of those who tried to hire Dobbs to burn a steamboat; there is little doubt that the man who endeavored to have one depot burned would be party to the firing of another; and Brown and Wells and other witnesses have shown you that Freeland was a prominent man in the combination, and the first to wnom the thought occurred of blowing up the train with powder. The next important testimony is the interview with Fitch on the 10th 350 of January. This is the interview claimed to be contradicted by W. B. Laycock, and referred to before among the alleged contradictions; and you will note that altho' it is said that animosity to Fitch and the desire to get him to prison was the chief object of Phelps, it is only at this late period after four others are implicated that any thing is revealed by Fitch to identify him with the arson. This is quite inconsistent with the theory of the defence: if malice against Fitch was his motive, and he spoke false, Fitch would be the first he would implicate;and it is consistent with that which experience would lead us to expect,that the reckless tools would more freely commit themselves than the acute and cautious leader. But to return to the interview between Phelps and Fitch. Phelps says he said they had prepared the match and sent it to a man in Detroit who placed it in the cupola; that they paid him $150. This, gentlemen, was in January, yet how exactly it agrees with the admissions of Gay made in April, to Clark and Van Arman. Gay also says he got it from his friends at the Centre; he placed It in the cupola, and they paid him $150. To return to page 158 Fitch said it was "so constructed as to burn in a given time." Is this not convincing evidence of truthfulness. We have shown you that match made according to the dascription given by Filley can be made"to burn a given time;" but were enabled to show it to you only by means of a skilful chemist. We have shown you in the most conclusive manner (I will not now repeat the argument on that point,) that Phelps was utterly ignorant of the material and construction of these matches; how then could he, so far back as January have put these words in the mouth of Fitch. In this same interview Phelps says Fitch spoke of the injury already done to the company; of people having been warned not to travel; of his influence and his ability to procure witnesses; that he could impeach any man. It is scarce necessary that I should ask you is not all this evidence true' The same in substance is testified to by a dozen witnesses who are not questioned; far more is testified to by Mr. Knickerbocker and Mr. Chadwick. The truth of much of it you have witnessed, yourselves so far back as January, Phelps reveals that that the chief bond and reliance among these men was their'ability in case of ef a prosecution to obtain false testimony. The arrest and prosecution came, and as promised, the perjury came with it. Hawley was subpoened. Although Dyer has not confessed, I am safe in saying le was not a true witness, else why should he, an important witness, fly the state without examination. I am also safe in saying that when the questions I have read to you were put to Phelps the witnesses were on Iand to contradict him. They knew he would deny, and were prepared to contradict. Let me instance the case of Miss Merwin whom by Hawley's statement we know came here, and was in this city before the question relative to her was put to Phelps; before they knew he would deny it. She was sent for and brought to contradict him. What inference can you draw but this-that knowing he never said it, they knew he would deny it. Otherwise why not wait for his denial be 351 fore bringing her from Indiana; but it is useless to argue that thedefendants were prepared with false witnesses. We know that parson Billings brought his quota from Indiana, and before I conclude I will show you just as conclusively that Leoni furnished its quota, and fully justified the boast of Williams that they " had there those who could prove a horse a smith's shop, and every hair a lighted candle." I will ask you here,gentlemen,to pause and review the portionofPhelps testimony which we have gone over. Youpercieve that up to this point he states many things that have since been otherwise demonstrated, and which in the month of January could have been known only to the initiated. As for instance. That the depot was fired in the cupola; that such a match as Filley described would and could be graduated to burn a given time; that Gay was the person who actually fired the depot; that if arrested and prosecuted, these defendants would defend themselves by false witnesses. Until the testimony in this case shed its light upon them, all these facts were involved in darkeess and doubt, how then could Phelps in January state them as facts. How account for his positive statements of these things in January save by the hypothesis that he speaks truly; that he had had his information from the men who made the match, and procured the commission of the arson-? You will remember that until after this period, Phelps was not in the employ of the Company, but in the employ of Mr. Bates-that up to this time he states he gave information to Mr. Bates of what he learned. Mr. Bates was in the court room frequently during this trial. If Phelps spoke falsely in saying he knew these things in January, the defendants had it in their power to contradict him, and failing to do so it is equally a rule of law and of common sense that you shall presume that if placed on the stand Mr. Bates would so far corroborate him. It is proven that in January Phelps knew and stated with certainty many of the truths of this case of which all others were ignorant: a fact which can only be accounted for by the hypothesis that he is an honest witness and has spoken the truth. You will also remember that while the defence claim that the charge of arson was the pure result of malice against Fitch, Phelps testifies (and Mr. Bates could' contradict him if it were untrue) that a few weeks after the depot was burned, he told Mr. Bates of Gay's confession that he was the felon; and only seeks further revelations by the direction of Mr. Bates. Yet although he is the first man against whom he gives information, counsel gravely tell you it was all a plot between Plelps and Gay. But to return to the narrative of Phelps. He tells you that in February, Dr. Farnham told him that he was preparing a machine to blow up the track, and that in March he showed it to him, and said it was then complete. In going over the list of acts done, I have already shown you that this evidence is abundantly corroborated. By Brown and Wells, that the plan of using powder to blow up the track was contemplated by Freeland, Fitch, Filley and others, and by Wyman and Burdick that the Doctor was prepared to blow them np. Phelps next details his interviews and conversations with Fitch in Detroit, and which, although attacked by the defence, are, as you have 352 seen, fully established and corroboratod by Mr. Doane, Mr. Sheely and Wescott, and his long conversation with Fitch on his way home in the cars, which is also corroborated by Mr. White. Before passing on I will allude to the substance of these conversations as detailed by Phelps. 1. Fitch came to make some arrangement to prevent Wells and Laycock making disclosures to the company. We afterwards find that Laycock leaves their employment. 2. Fitch says he gave Gay the matches to burn the depot. We afterwards find Gay telling Clark and VanArman that this is so, showing them a match and offering to take them to the Centre and introduce them to defendants, 3. He tells how he detected that Wescott was a spy. There could be no collusion here between Phelps and Wescott, as both deny acquaintance at the time, and if it existed the defence could prove it. And Phelps made regular and full reports to Mr. Clark, who had them in Court, within the control of the defence; and yet his account is substantially the same as Wescoit's, the only variance being, that while Wescott and several other witnesses show the information of his being a spy, to have been given by the prison guard, Fitch boasts to Phelps that it was sent by the Prison agent himself, Fitch you will perceive where he gave the narration, was boasting of his influence, and it was very natural that he should substitute the agent for the guard. It is a variance, but a variance that rather confirms than weakens the truth of the evidence. The next important evidence is the interview of Phelps with several of the defendants, at Bascom's tavern on the first day of the Court. He says they had a long private conversation in the sitting-room, and this fact is corroborated by George Holden, a constable, who went in to serve a subpoena. Apart from the corroboration, the mind naturally inquires if there were no criminal secrets between these men and Phelps, why all these secret interviews corroborated by so many, witnesses? Why should Fitch subsequently say he knew Phelps but slightly? It was at this time that Lake was introduced as the person to assist at the Niles' burning, and when Williams stated the rules to be that if he betrayed he should be shot. Although Williams proposed swearing Lake to secrecy, Lake only pledged himself. This is seized upon by the counsel as evidence of the falsity of the whole scene; he asks why was not the oath insisted on if it was the rule? Who deputed Williams to represent the entire combination, receive the neophyte and administer the oath? To my mind it is evidence of directly the reverse, for if Phelps was fabricating, he would have colored the scene; there would be more secresy, more form and probably an oath; but as he tells it, it is entirely consistent with the testimony of others. These men had no lodge, no officers, no forms of initiation, but whenever a new conspirator joined them, he was was warned that punishment and vengeance would follow a betrayal. But again, Phelps says that in this interview Williams said they were going to make a proposition through their attorney to the company for a settlement, We offered to prove that such aprcposition was made, but it was objected to —the offer over-ruled. We named and placed upon the stand the witness to whom it was 353 anade, and the defendants had it amply in their power to show the falsity of the witness. They could show if no such proposition was made, orby calling for Phelps' reports to Clark, could show if he had not reported their intention before their offer was made. How is this to be answered, save by the hypothesis that Phelps speaks the truth! Did he prophecy such a proposal, and then influence the defendantsinnocent men, who never violated a law-to work its fulfilment by implicating themselves? Again, he testifies to his interview with Gunn at Niles, and if you iturn to the testimony of Mr. Fitzmorris, you will find it fully corroborated, not merely as to the interview, but as to a portion of the con~versation about getting Sherman out of the way, Again, on page 137 he says, that as early as March the boys informed him that they were all working for particular candidates for the approaching election,:and strange enough those very candidates got almost the unanimous vote of Leoni, although of opposite politics to the usual vote of the town. We find Phelps prophesying against all seeming probabilities, but his prophecies are always fulfilled. I have thus, gentlemen, taken the most important portions of his testimony and shown you that it is wondrously corroborated. I might go over it all in the same manner. There is scarcely a line that is not sustained by other witnesses, but I dare not trespass longer on your time, and pass on to his testimony regarding the 11th of April. Without delaying you by reading his testimony in full you will remember that in. substance he and Lake testify that on the,morning of the 11th of April, they left Metcalf's in a buggy; that they had nothing in the buggy but some straw: that they went to the house of G. Cady to seeaboit a horse Phelps wished to purchase; and from thence along the road that runs north of Beeman's field, and about a mile south of Leoni, (not going through Leoni,) to the Centre. That they did not part, or get out of the buggy from leaving Cady's till they reached the Centre; they then saw Filley; Lake being sick, remained there; and Phelps atonce went to Leoni; thence to Grass Lake; back to Leoni, and from thence in the evening, accompanied by Myers and Corwin to the Centre, where the match for the burning of the Niles depot was delivered. The principal portion of the defendants testimony has been intended to contradict Phelp's in his narration of his journey and the occurrences-of this day. The effort of all the testimony has been to raise a presumption that Phelps and Lake carried the match to the Centre on this 11th of April, making as the counsel claims, a third distinct defence. From all the indications we had, we could easily anticitipate, that Leoni would "do its duty" towards these defendants, and her champions selected the space between Cady's and the Centre for a battle-ground. It now becomes my duty to carefully examine the evidence adduced by the defendants upon this head, and show that while a portion of it is the result of evident mistake; the balance is wilful and deliberate falsehood; just of the character that could prove'"every hair in a horse a lighted candle." L It is claimed that they carried a box tied up in a red kerchief in the buggy; that Cady, Peeler and Kellogg saw it. 23* 354 I now refer to the testimony of Mr. Cady. (Here counsel read portions of Cady's testimony.) You see gentlemen that Mr. Cady, who is evidently an honest upright man, does not color his testimony. He tells you he cannot be certain he saw anything in the buggy; but is of the impression that there was a "reddish bundle" back of the seat. You will remember that when recalled Lake testified that he had with him that day, an overcoat with red lining which he produced, and the day being warm it was thrown off. But counsel says this was an afterthought; but by turning to the cross-examination of Mr. Cady you will perceive one of the first questions asked him was if it was not an overcoat he saw, and he replied "It might be an overcoat." There is so far no contradiction; it was not strange that Phelps and Lake should at first omit to state they had an overcoat, any more than that they should omit to state they had undercoats, or boots, or any other article of dress. You have heard that Mr. Cady stood several minutes beside them in the road. If they had a square box in a red handkerchief, it would give a very different idea from a "bundle like," and one that would never permit him to say " it might be an overcoat." I now turn to the tes. timony of Peeler andKellogg. (Here counsel read the testimony.) You perceive they had no such opportunity to see what was in the buggy as Mr. Cady; they merely passed Phelps and Lake on the highway without stopping, while Cady drew up beside them in the road and conversed for several minutes. Yet Peeler and Kellogg swear, one that it was "the shape of a box;" the other, "something in a square form." They tell you it excited their attention and they conversed about it. Suppose it to have been a box tied in a red hankerchief; is it at all probable'that it would excite attention? Is it so unusual for two travelers in a buggy to have a small box in the back part of it? But listen to Peeler, "Kellogg said by G —d,he believed it was full of counterfeit money." Mr. Kellogg don't seem to quite relish the idea of fathering such profanity and gives a more subdued and chaste version he says, "I said perhaps the stranger is a musician and it belongs to him, perhaps it is a box of bogus or the tools for making it." This evidence you will remember was given before the arrest of Hawley. Before the prosecution had been guilty of the shameful oppression of arresting a miserable perjurer, and thus sending a bevy of witnesses back unsworn to the tamaracks of Indiana. It was the first gentle opening to all that was to have been proved. You will remember the counsel who opened promised to prove Phelps repi esented to, Corwin the box contained bogus; it was therefore well enough to haveother witnesses who not only saw the box but recognized in it the "bogus look," that helped to deceive Corwin. Where plain direct perjury has been shown on the part of the defence, as has been done in this case, you are bound to look with caution if not suspicion on all their testimony. Perjury was one of the weapons of defence. Is not this a likely place to strike a blow with it? The witnesses only swear they deemed it a box, and who could indict them for mistaking abundle for a box? They would be safe in stretching their testimony a little. But are they men who would do it? Listen to Peeler's bio 355 graphy of himself. He entered the army,was twice Court Martialled; and finally punished and dismissed from the service. He contracted' an alliance by soldiers marriage with a woman at Sackets Harbor; they had a child; he left them and never inquired after them since, and don't know if they are living or dead. He married again at tie Sault; can't tell his wifes name or if she had another husband living when he married her, but heard something of the kind; can't tell who married him or who were present; he came to Detroit, lived with Kellogg and finally the pair found a suitable home and settled down like brothers in the same house and near the rural district of Leoni. You can review their testimony gentlemen and determine whether they have spoken falsely, or only stretched a little for friendship's sake or whether they are honestly mistaken, taking into account the improbability that Phelps and Lake would thus carry a match exposed to the view of every passer by. Then ext alleged contradiction is while Phelps says he did:not go to the village of Leoni till after he left Lake at the Centre about noon, several witnesses swore they saw him in Leoni on that day fiom 10 to 12 o'clock; that he came in from the South, and his horse ran away.These witnesses are Alden Luce, Mrs. Tull, Jno. Cuykendall, and I. D. Tull. All of these witnesses save Mrs. Tull, identify the occasion as the day of a certain lawsuit before Justice Bildad Bennett, a gentleman whose name has already figured in this cause as one of the witnesses who did'nt swear; and who will again appear as active in procuring the testimony of the Bemans, which I wili show you to a moral certainty is false. You will remember that Phelps on being recalled' testified that on an occasion preceding the 11th, he did come into Leoni from the South, and his horse did run as described. The question then becomes one of date; and while three of the four witnesses swear that they were guided by the date of the suit, as it was in the possession of a warm friend, it would'have been frank and candid to have produced the docket, and shown that there was no mistake in the date; that there were no erasures, no attempt to mislead by a sskilful change: of the date of the suit' It can scarce be expected that a prosecutionM can demonstrate that every particle of testimony introduced by a defence, springs from mistake or want of truth, but in this instance it can be done. I refer you to the testimony of Mr. Luce who swears he saw Phelps as described on the 11th. "He knows it was the eleventh because it was the day of the suit. And he has since examined the record."So far it is consistent enough, but follow his cross examination and he tells you that about sunrise on tite Thursday following the eleventh, he met Phelps on the railroad track near Leoni. "He knows this was the Thursday after the 11th;" and gives you divers reasons why he cannot be mistaken. Turn to the testimony of Mr. Howe and Mr. Spaulding givein the 1st of Sept., and you find beyond all dispute that Phelps was in Detroit Wednesday night and Thursday morning, and that he went West on a train that followed the regular one on Thursday morning. So he could not by any possibility be where Luce says he metbhim before noon on that day. Luce then is mistaken beyond question, and it follows that the other two who wear by the docket are also mis 356 en. Other circumstances show that Mrso Tull, who does not swear iy the docket, is also mistaken in the date. Her testimony in effect is hat she saw Phelps come into Leoni a little past ten; after this she erself went tothe Centre, and got there about 12 o'clock, when she ariived there she saw " the same horse and buggy Phelps had tied to the post, and in about three quarters of an hour after the horse and $ gy driven of South." There is something strange in this guarded iraseology; if she saw the horse and buggy driven off she saw who drove, and. why not say it was Phelps or it was not Phelps. Although -she may have been at the Centre on that day, and met Phelps, Corwin and Myers, on her return in the evening, as she states, it is very clear 4hat it was not this dayshe saw Phelps in Leoni,and "the same horse and bLggy" at the Centre for three quarters of an hour. Turn to the testimony of Mr. Kane, and Mr. Allen, both called by the defendants, young oeMhants of intelligence, and they tell you, they arrived at Filley's on ie 11th, about noon or a very little past noon, and remained there til1 about I P. M., when they went to hunt. And although this is the period when Mrs. Tull tells you the horse and buggy were Tere, they saw no such thing. A.nd although they were round there making their preparations during the same period, Mrs. Tull never:saw them; their vision was closed to the horse and b.ggy, while Mrs. iTail could see nothing else. It is manifest that she is mistaken, and t he most charitable conclusion you can draw is that in her. mind the toeurrences of seveaal different days are by some strange confusion gathered into one-thus alone can you reconcile her testimony with at of others and preserve her character for truth. The learned. cunsel has referred to the testimony of Hudson, and says he proved 6at Phelps said at the Centre that night that his horse had run THAT day and it was the only time he ever did run. The counsel is mistaken in this; all Hudson says is "Phelps also said that his horse had run away, but that before he sad been very steady." And this might as weli apply o any other day as the 11th April. We now come to the most important contradiction of all-an event an this case which fully illustrates the difficulty of framing a lie so sim-.ie -that it does not bear the impress of falsity. Lake and Phelps testify that they did not part till they got to the'Uentre-that Lake did not get out opposite the Beeman field, take a uandle out of the buggy, and go across lots towards the Centre. On he other hand, James E. Secord, David Beeman and Charles E. H. 8Beeman swear that at that point, on that day, and between 10 and 11 ~o'lock, they saw two persons answering to the description of Phelps.ad Lake, come along in a buggy, that the buggy stopped and one got out, took from it a bundle covered with a red handkerchief, and passc-d over the fence and through the fields towards the Centre, while hbe other person remained in the buggy and drove on to Leoni; and Taylor swears that on the same day, he met a man on the road be4ween there and the Centre with a bundle covered with a %ed handkerchief under his arm. The first thing that will strike you in reference to this testimony, is that it is confined to a single point. If the witnesses are false there.o0uld seem scarcely any possibility of contradicting them, there are 357 no surrounding circumstances, to details, it does not, like the testimony of Phelps, embrace several persons and long details; it is confined' merely to seeing a man get cut of a buggy at a particular time ansd place. If then, in a tale so simple and so concise. we find that e witnesses get confused, contradict themseives and each other, and tbat the story bears every impress of improbability, painful though it may be, we cannot avoid the conviction that it is false. With these remarks I call your attention first to the testimony of Secord. By referring t-o his testimony you will perceive that he contradicts himself as follows. He says he told Cozzens of it, (seeing the man get out of the buggy) before Phelps was sworn, and again he says he can't say he eve spoke of it until after Phelps was sworn. Again, that for three- -r four weeks he has calculated to swear to th;s fact, and again, that unt the day before he was on the stand, he did, not keow it would be iimportant. Again, he says he first thought his testimony would be important as he saw Phelps go from Leoni that night with Myers ae pay a quarter forliquor, and then he says he don't know why l. thought that would be important. Here I will ask you to notice, getlemen, that no mention was made about Phelps paying for liquor Ion the 12th of July, by Luce, some nine days before Secord test.fie,, and yet for four weeks he thought it would be important! Again oi his direct examination, he says he saw the man thus get out of the buggy from the 7th to the 11th, but on cross-examination fixes it on thea 11 th, and then don't remember if he said from the 7th to the 11th, and yet he fixes the date by the law suit before Bildad Bennett. Them contradictions are all scattered through his cross-examination; they ar not all in one place, but they are all there. I next refer you to the testimony of David Beeman, who you wir find contradicts himself as follows. He tells you he was at work with his son, and sent the lad to see if there were cattle in the field, and followed to see what delayed him, but when he saw the buggy, stopped to look after it, and although he did not think there was anything uncommon about what he saw,went back without looking farther aftrs,. or seeing, his son. He says Phelps passed frst and (ozier passed 10 or 15 minutes after him, and again he says Cozier passed before Phelpso Again, he says he did not see Cozier till he got to the corners, an' again, he first saw Cozier's wagon fifteen or twenty. rods before it gt to the corners. Again he tells you Phelps passed before Cozier, and Cozier overtook and passed him, yet Cozier, he says, went slower than Phelps. Again he tells you he saw Secord on Saturday, but he didn't tell and he don't know what he swore to. Alain, he says Hg- by told him what Secord swore to, and yet again, he says Secord t0e him all about it, the place, the color of the horse, the dress of the mara who got out, &c. Then again he tells you the only reason he notice the man get out, was "because the road would be shorter to go tcMichigan Centre, than to go across the lot." This was an incautious expression, it shows the witness assigning as a reason what could not strike his mind; this place is four miles from the Centre, houses and mills are scattered all along the way, and how could he conclude' the man was going to the Centre, or think he had better have takethe road. I might add to the contradictions of this witness, but I ha: 358 given enough to show you that he came to swear to a solitary point, and the moment he was led from that, he was at sea and swore at random. I must refer you to the testimony of C. H. E.Beeman. In this witness we find few palpable contradictions of himself; he is an intelligent, cunning lad, and doubtless profited by the experience of others; indeed he tells us as much. You will remember the pert, self-satisfied air with which he exclaimed, he had asked his father on leaving the stand, "if they had laid him out, and told him if they hurt me, I will cut my head off:" He came armed for the encounter; and it will certainly strike you that a lad of his age coming to swear to the truth, and that truth one single simple fact,would not thus prepare himself to'cut his head off if laid out." He also tells you, that until inquired of a few days before he came on the stanr, by Bildad Bennett, she never told what he saw. He had made up his mind not to tell unless he was,asked.' Is it not passing strange, that a boy seeing a man get out of a buggy would make up his mind never to tell of it? There is something so peculiar in the manner in which he tells of his having first re-;vealed this secret that I willl readit to you. He says on the Wednesday before he was examined, "My father and I were loading wheat, and he he had started home when Bennett and Cozier came and called me to the fence. Bennett asked me if I knew anything of two men coming along, and one getting out and over the fence, and I told him just as I iave told here. He said he knew I was at work fencing there at the time, and I must have seen the men come along. Before he asked me.any questions, he told me he knew I was at work, and must have seen Phelps and the other man come along in a buggy, and,then asked if I.didn't see them." He can scarce be censured for so easily breaking'his vows of secrecy to one who like Bennett could tell him all he saw. Again he tells you he did'nt want to be a witness; but yet he expected they would come for him, altho' he never told what he saw. There are fewer palpable self-contradictions on the part of this witness than the others, but if you glance over his testimony, you will perceive that there is a wavering air of insincerity pervading it that goes far to stamp the entire as false. I next refer you to the testimony of E. Taylor, who you will find contradicts himself as follows. He says after Beeman had testified he had a conversation with him; he told Beeman he saw the same man, and again says he did not say'the same man. He tells you he did not tell Beeman the man had a bundle with a red handkerchief; pressed a little farther on cross examination he says he told Beeman the man had a bundle; that there was a red handkerchief on it,and that the man was rather tallish. He tells you that on this day Penfield was at Detroit under arrest and seeing the blunder, he says he is mistaken in that, but he was away somewhere. He says he met Ladue near the mill and spoke to him about paying a debt in lumber, but he don't remember what answer Ladue gave; again he says Ladue said he sawed some at the mill; and again he don't know if Ladue ever attended the mill. I do not wish you to suppose, gentlemen that in these I have given all the self contradictions of these witnesses. I have noted others but I dare not tresspass too far upon your time and hurry on to point out 359 some things:in which they could not well be mistaken or forgetful and in which they contradict each other. Old Beeman says, when he saw the buggey he looked no farther after his son but he returned to him in the field after a little. Young Beeman says his father followed him to the house and brought him back to the field. Old Beeman saw no wagon but Cozier; young Beeman says Zeikels had a second wagon and was between Cozier and Phelps. Young Beeman says that it was only after he heard the testimony of Phelps, he made up his mind not to tell what he saw. Taylor says the week of the arrest he asked young Beeman if he had seen a man with a bundle along there, and B. said he had not. Old Beeman says he never spoke a word of what he saw to any one till he told it to Higby on Saturday. Young Beeman says he and his father spoke of it on Wednesday after he saw Bennett; that they went together on Thursday and fixed on the spot where the man got out;and they went there again afterwards; yet they don't appear to remember the spot agreed on, for young Beeman says they got out before they passed the pond; old Beeman says after they passed it. These contradictions may seem trivial in themselves, but you must remember, gentlemen, that where witnesses swear to a short and simple story, easily agreed on, their falsity must remain undiscovered, or be revealed by trivial surrounding matters. We could not hope to shake them, as to the man having got out of the buggy; that we knew they had agreed on; but in every trifling detail, that would not probably be agreed on beforehand, we find they wander and contradict themselves or each other. In reference to the two Bemans, I will remark that they are distinctly contradictedby other witnesses-Mr. Chapman, Mr. Spaulding and a number of others who went to the field, and testify, that from where the old man says he was at work, he had a full view, and could see his son all the way to the place where the son stood, while, he says he quit work in search of him. These witness-es placed themselves on the identical spots where old and young Bee-,nan say they stood, and saw the man get out of the buggy, and tell you if they had been there as they state, they must have seen each.other —yet one says he waslooking for the other; They also tell you ~that old-Beeman could not have seen Cozier's wagon in the place he states; and that young Beeman could not have seen it pass by Phelps, as he states, even if it had occurred. You have viewed these premises yourselves, and I feel well satisfied that the result of that view was to impress your minds with the belief that these witnesses have been guilty of perj'ury; that these defendants did not vainly boast they could,get men who would swear for them at any time. I think gentlemen, I might now safely leave this branch of the case; but there are one or two other ear marks of falsehood, so plain that although loathe to trespass on your time,, I cannot pass them by. You will notice that these four witnsesses came from different directions to nearly the same spot, and at the same time; and although they each claim to have had peculiar business there, the moment they see what they have testified to, the business is forgotten and abandoned. Thus, old Beeman quit his work to find his son; he saw the man get out of the buggy, did'nt think it strange, yet although the son stood in plain 360 view, within twenty rods of him, he walked straight back to his work, and looked no farther. Young Beeman went to see if there were cattie in the field, but the moment he saw the buggy he forgot his busi-,ness, and wanted to see the man safely into the field, and then went toi the house. Secord came down from the distilery, over a mile to look for a beetle and wedge; he did'nt find it; but he saw the man get out of the buggy and we hear no more of the beetle and wedge. Taylor goes from home in search of a boy; goes round by the mill to seeif he can find Zeikle's boy; hears Zeikle himself is likely to be from home;. meets a man with a bundle and passes Zeikle's door; never stops to. inquire about the boy, and never gets one after. Surely this might be enough; but there is still another sign. You will remember gentlemen, that in his opening speech on the 8th day of July, the counsel for defence told you they would prove that on that day Lake and Phelps came along south of Leoni, with the box in a red handkerchief; that Lake got out, put it under his arm, and went across the fields towards the Centre; now the question is from whom had counsel learned thesefacts? Not from Secord, for on the 22d July he tells you, "I did not know for certain till I was subpoened yesterday, that I would be a witness." And again he says: "When Bennet spoke to me on Sunday, it did not occur to me, that about the men in the wagon would be important; never did before Sunday; don't know that it ever occurred to me that about the wagon would be important." Nor from old Beeman, for on August 5th, he says:" came here yesterday; was subpoened on Monday by Cozier.Last Saturday Higby asked me what I had seen, and I told him, and that was the first time I ever told any one what I had seen." Nor from young Beeman, for on August 5th, he says he saw Bennett and Cozier on Wednesday. "When I saw Bennett and Cozier was the first I told of what 1 saw." Nor from Taylor, for on August the 9th, he tells you he was subpoened. afew days before, and until then, never told what he saw; or said any thing about it, but to once ask young Beeman if he saw such a man, when B. replied he did'nt recollect seeing him. It is clear then that the information did'nt come fiom any witness produced on the stand. How did it come. Was counsel told he might go on and state it boldly, that the proof would be forth coming? It looks like this, for it was just the place and Incident to be selected for a successful perjury. Before leaving this subject, I must call your attention to a mark of falsity in a witness which is laid down in the books-1 Starkie, p. 547laying down several indications of insincerity in a witness, says "an affectation of indifference, are all to a greater or lesser extent, obvious marks of insincerity." Apply this rule to these witnesses; old Beeman says he never spoke of what he saw, to avoid being a witness;. yet one of the defendants is married to his niece. Young Beeman never spoke of it for the same ieason; and Taylor, when the constable first asked him, denied having seen the man, and only acknowledged it when he was subpoened, and found lie had to come. Add to this, gentlemen, the absurd improbability, that in seeking secrecy, Lake would take the box out of the buggy, and carry it four miles uwx 361 der his arm, along a public highway, and then ask yourselves what marks of falseh-cld does this testimony lack. It is improbable -the witnesses contradict themselves, and contradict each other; they are contradicted in material points; flo account is given how their evi"dence got to the knowledge of the defenee. Although the most important witnesses for the defence, if true, they are not subpoened till almost its close; although speaking to one point, they straggle in, one now, and one again, over a space of some 17 days. It was just at the commencement of these delays, of which so much has been said, that these witnesses were subpoened. Sum up all of these circumstances, gentlemen, and tell me how you can avoid the conviction that these witnesses are false? or upon what grounds you can give the slightest credence to a word they uttered. Although not directly connected with the narrtive of Phelps, 1 may in this connection dispose of the testimony of Arnold. You will remember he was called to prove that Lake had a bundle, in a red handkerchief of course, at Filley's on the afternoon of the 11th April. — That was the single point that he was to swear to, and when ie passed beyond that he contradicted himself in every sentence. If I could feel assured t'hat you remembered his appearance on the stand, I would dismiss him without a single word, but lest you should not, I will read to you some portions of his evidence which are characteristic of the entire, and will serve torefresh your memories in relation to him. (Hel e counsel read from the tstimony of Arnold.) You perceive that four or five times he repeats that whatever day he saw Lake, he went to Quigley's at Brooklyn, the second day after.He can't be mistaken about this. He gives a statement of how he was employed the day he saw Lake, what he worked at the next day, and is certain the third day he went to Brooklyn and stayed over night at Quigley's. But unfortunately for the reputation of Mr. Arnold, Quigley and Miss Ellen Quigley have a distinct recollection of the only oecasion when he stayed over night at their house, and swear positively it was on the 18th of April. They cannot be mistaken for besides other reasons for remembering, they remarked the next day on hearing that all the people at the Centre were arrested, that Arnold was not, for he was at their house the night of the arrests, which was the night of the 18th, or the morning of the 19th. You will notice that he swears by the entries in his account book, yet like Bildad Bennett's docket,. the account book is not here, it may be good enough to swear by, but not good enough for inspection. Produced, however, we are fortunately able to gather some idea of its accuracy from the following portion of his testimony. You will remember that Sunday was the 3d of the month. He says: "Can write and keep my own books, looked last at the book on Sunday, made a charge there last Sunday, with the dates, it does not concern this case what dates-the dates I put down were the 3d, 4th and 5th of this month, it was Monday 1 made the charges. Mis.spoke when I said the 5th-I made a charge for the 5th-worked for Laycock on the 3d and 4th-worked for him on Sunday-now you have it. 362 Unless aided in your memory this testimony gives but an imperfect idea of his accuracy; you will recollect that his 3d, 4th and 5th came out only as he was each time laughingly reminded that he was still making entries in advance, and he was so ready and willing to change the date of his entry, that a sober face, might have led him on to the twentieth, perhaps the fiftieth of the month. I leave Mr. Arnold. I know that when he left the stand you did not believe a word he uttered,and I know his credibility is not much strengthened by association, of being a witness to the same point with the Beemans. Phelps states that on the evening of the 11th he was again at CoyS kendalls, that Myers and Corwin went with him from there to the Centre. These, the leading and material facts of this testimony, are corroborated by the witnesses for the defence; but it is sought to establish a contradiction by Coykendall, who swears that Phelps paid for twenty cents' worth of liquor, that was carried by them to the Centre. Kellogg and Smith also prove that they saw him pay for liquor, but their evidence amounts to nothing, as Phelps himself admits that he treated several times and paid. Coykendall is the only one who swears he paid for the liquor that was carried away. Apart from its bearing on the truthfulness of Phelps, it is entirely immaterial who paid for the liquor; and if Phelps paid, why should he deny it? But to set the whole matter at rest, Phelps says Corwin paid for it; and at page 155 Falkner says Corwin asked Fitch to drink out of the jug, and adds, "Corwin told him he need not fear it, as he had paid for it." The next portion of Phelp's testimony is a detail of the conversation and occurrences at the Centre on the night of the 11th April,when the match was delivered to burn the depot at Niles. As this portion of the case is important, and if true stamps the impress of guilt upon many of the defendants, I will detain you by reading a portion of it. After stating that he, Myers and Corwin arrived at the Centre, he proceeds at page. 139, as follows: "Arrived after dark, and stopped at Filley's hotel, found Mr. Falkner there. Soon after we got there, H. Hay, and Lake came in, and soon after Fitch came, and by and by Win. Hudson, came in: don't remember any one else. Fitch took me on one side and said Filiey had told him that if I was going to Niles at all, I was going that evening. I told him that was my object in coming there; he said a lot of fellows had been hanging around there, and he had sent Filley off with them fishing. I asked him for some money, he said he would not pay us anything more until after we returned, but if we succeeded in burning the depot, we might come back and take the oxen, and they would pay over the balance of $60. I know Corwin, Myers, and Falkner werein hearing of part of this talk; I spoke loud, told them I wanted them to be ready to pay me when I got back, that I was going to Minnesota; Fitch, Corwin and Lake went out of doors together, and Fitch said to Lake and me that he supposed we knew the consequences of bad faith towards them —that if we made any exposures we had better dig our graves before we went; then said he would give us a match all ready, which if /we once got inside of the depot there would be no difficulty about it; said we should have to get some turpentine or camphene, and put it into the box out there, as we could not well 363 carry it with us, said our best way was to take it in our buggy and go back to Grass Lake, and one stay there and the other go farther east and get on the morning train at different places; said the match was on the same principle as the one he had furnished Gay with, and it would not fail, as they had tried it several times; went into the hou.se again and spoke of money, I wanted some in advance, and Corwl a gave me fifty cents, saying that would help to pay for drink on the road anyhow. A remark was made in the room that if we were successful in this and other plans they would be able to make a raise out of the company. Fitch said if you are successful, when you come back we will go to Kirkendall's and have a bust; Corwin said yes, we will tear his bar down. When we spoke of money, Fitch said it would be ready when I came back from Niles; that he had plenty of itthat was not yet galvanized, but would be before I got back, and I could have plenty of it; that they would be flush when I got back. Something was said about my claim before the Legislature; Fitch'wanted to know how 1 got along with it; I told him I should probably get about $3,000. Fitch said to Corwin we had better fix them off before Filley gets back with the men fishing. Corwin went to a small room, unlocked it, and brought out the match under his arm, and placed it in the buggy, and said there, boys, it's all right; as he went out with the box nearly all hands started to follow; I got up and shut the door, and told them they could not go out; they then went out by the north door; Fitch Wvent away before, -after telling Corwin to go and get the box." It is claimed by the defence that the testimony of Amanda Fitch, Mr. Cross and Mr. Hudson, precludes the possibility of Fiteh having'been at Filley's on that night, for the length of time impled by Phelps. A very few words will dispose of this objection. As usual, when Phelps is sought to be contradicted, the witnesses begin by corTroborating him. In this instance, they all prove his presence there that night, but differ from Phelps, Faulkner, Lake, and each other, as to the time he remained there. Thus Amanda Fitch says he was not absent from his house over five or ten minutes —Mr. Cross says 8 or 10 minutes, and by turning to Mr. Hudson's testimony, you will per-.ceive he makes it over halt' an hour, for he says he found Fitch standing outside, wentin and Fitch followed him. There was then some drinking, after which Fitch and Filley talked some 10 or i5 minutes. After this he says he did not see Fitch, but he does not know when he left. But the accuracy of this witness cannot be at all relied on, for though he remained till all left he never saw the box. I will hereafter show you that Hudson corroborates Phelps in many essential particulars, but for the present pass from this branch of the case as in connection with the testimony of Faulkner, I will show you how unerringly the occurrences of this evening indicate the guilt of the defendants-how fully Phelps is corroborated, and the impossibility of his evidence in this regard being untrue. I will also for the present pass over the evidence of Phelps in relation to his interview with Filley at Jackson; in another connection I will refer to its corroboration and,show its important bearing in the case, and will now briefly call your 364 attention to other grounds of discredit urged against this witness.Reference has been made to his demeanor on the stand and his conduct in reference to the jury and counsel. Surely the phillipic indulged in by the learned counsel in this respect, must have been an after-thought, and part and parcel of elaborate preparation. I cannot but think that at the time, the testimony was given, he must have been favorably impressed, as doubtless you were, with the bearing of the witness. Examined at great length and thro' vast detail, tortured by a cross examination through several days with great ability and severity on the part of the learned counsel, he yet held the even tenor of his way, calm, prompt, and frank, thoughtful but not reluctant; willing but not forward;never volunteering, but always responsive,he stood through the long ordeal,and came out not only unhurt, but I submit to you, with his whole story strengthened by the severe test which failed to shake it. But, says the counsel, he impudently assailed William Dyer, a respectable citizen of Indiana, and denounced him as the identical horse thief Lozier. Most singular thing for this defence to revive! You recollect the scene. Hawley had just poured out his afterwards recanted perjuries on the head of Phelps. Phelps was again put on the stand by the defence to lay the foundation for new impeachments. "Did you not so tell William Dyer, of Indiana?" &c. "I don't know him," said Phelps, "produce him and I will say if I ever even saw him." And in came William Dyer, stealing with trembling paces over the floor. Phelps fixes his eye upon him, and declares his belief that it was Lozier the horse thief. Gentlemen, is.this a circumstance against Phelps? Would he thus have denounced the man, if he had not believed he spoke the truth, when he knew, if untrue, fifty witnesses could be brought to contradict him? Gentlemen, he may have been mistaken in the name of Dyer, but not in much else. He sent to Indiana for witnessess to meet this William Dyer. Hawley was arrested-Dyer was about to be; he fled from the State, the "respectable citizen of Indiana" returned to his native tamarack and his miserabl testimony was stricken in disgust from the case. But Phelps is charged to have on several occasions intruded himself offensively on this Jury. I appeal lo you if this is true. Has he not, on the contrary, invariably been reserved, kept himself aloof, and behaved so modestly as to have attracted your observation and gained your approval? Aye, but he sat here at the head of counsel for the Prosecution,' observing their course." Withering remark! Bitter sarcasm! I saw my leaaned associates took it very quietly, showed no "visible sign," but bore it as philosophically as if they had sat at the bar before, and with others, which made it quite as humiliating as when headed by Henry Phelps. And all this tirade poured out on this bar because on an attempt-being made to impeach Phelps, he was permitted, according to invariable custom, to sit by counsel and suggest what might be useful in process of examination! Time will not permit me, nor does my own sense of duty prompt to pursue this further. The learned counsel strikes at both friend and 365 foe, and for the sake of. a hit at Phelps, would even sacrifice his own colleague. One would have supposed that in view of all that was proved and offered to be proved, one thing would have been permitted to sleep. I will not for a petty triumph inflict a blow on one whose own associate would not spare him. You have seen Phelps from day to day, his incomings and outgoings, his patience, candor, and gentleness. You have seen the storm of hatred poured down upon his head. You have seen Hawley and Dyer conjured up from swamp and morass, and kindred spirits in swarms gather to destroy him. All that malice could suggest, all that ingenuity could devise, all that perjury could execute, was done. He stood still; the storm passed; and Phelps and his testimony remained unhurt amidst all this "war of elements." But it is said his story is not probable; that Fitch had no motive to engage in such crimes; that these defendants are too humble, obscure and few, to have attempted such acts against a powerful company;that most of them were poor and could not have contributed to a fund for burning Depots; that Phelps stands a self-acknowledged liar, because he made false pretences as to his mission among them, and that other improbabilities exist, which I dare not detain you to even call up for investigation. How these and all the other improbabilities suggested in the story of Phelps disappear on a little reflection. These men were not weak but strong, constituting a very considable portion of the town of LIoni; strong in hatred of the Railroad; strong in'their union against it; strong in their criminal successes; strong in all the elements of a dire and fearful conspiracy; each one could readily procure the respective amounts which they are alleged to have contributed for the arson of the Depot, and each one had fierce desire enough for its destruction to sacaifice his last coin to reward the incendiary. How weak to talk of want of motive in Fitch to be participiant or adviser in such offences, when he is found through years denouncing this Road, uttering bitter maledictions against it, justifying every outrage upon it; when he carried around with him through the long day and the quiet night the spirit of undying revenge, which haunted him to the last? How futile to denounce Phelps because he did not unfold to these prisoners the true object of his action, and defeat at once every chance of developing the deep seated wickedness of Leoni? The story, gentlemen, is natural and probable all over. Not only is it corroborated, consistent and inherently true, but most probable in every aspect. It is probable, as being the almost necessary result of the threats, conduct and combination of defendants. They had determined on vengeance; they had entered on a wild career of crime and recklessness. They had set the laws at defiance; brought themselves to believe in the corruption of Courts and the unmitigated depravity of all mankind. They had abandoned the sweets of domestic bliss, and the repose of rural life. Their Sabbaths were desecrated; their nights consumed in revels; visions of fiendish violence perpetually flitted across their minds, and details of their execution furnished the richest enjoyment. 366 Gentlemen, all this, and far more than all this, does the testimony in this case tell us. I will not enlarge upon the theme, but with your permission I will read to you a page ofmoral philosophy by an eminent writer, which may furnish some food for reflection, and perhaps strike. you as having some application to the case before you. ["The man who habitually violates his conscience, not only is more feebly impelled to do right, but he becomes less sensible to the pain of doing wrong. A child feels poignant remorse after the first act of pilfering. Let the habit of dishonesty be formed, and he will be come so hackneyed in sin, that he will perpetrate robbery with no other feeling than that of mere fear of detection. The first oath almost palsies the tongue of the stripling. It requires but a few months, however, to transform him into the bold and thoughtless blasphemer. The murderer, after the death of his first victim, is agitated with all the horrors of guilt. He may, however, pursue his trade of blood, until he have no more feeling for man, than the butcher for the animal which he slaughters. Burke, who was in the habit of murdering men for the purpose of selling their bodies to the surgeons for dissection, confessed this of himself. Nor is this true of individuals alone. Whole communities may become so accustomed to deeds of violence, as not merely to loose all the milder sympathies of their nature, but also to take pleasure in exhibitions of the most revolting ferocity. Such was the case in Rome at the period of the Gladiatorial contests; and such was the fact in Paris, at the time of the French revolution. This also serves to illustrate a frequently repeated aphorism: Guem deus vrelt perdere prius denmental. As a man becomes more wicked, he becomes bolder in crime. Unchecked by conscience, he ventures upon more and more atrocious villainy, and he does it with less and less precaution. As, in the earliest stages of guilt he is betrayed by timidity, in the latter stages of it he is exposed by his recklessness. He is thus discovered by the very effect which his conduct is producing upon his own mind. Thus we see, that by every step in our progress in virtue, the succeeding step becomes less difficult. In proportion as we deny our passions, they become less imperative. The oftener we conquer them, the less is the moral effort necessary to secure the victory, and the less frequently and the less powerfully do they assail us. By every art of successful resistance, we diminish the tremendous power of habit over us, and thus become more perfectly under the govern — ment of our own will. Thus, with every act of obedience to conscience, our character is fixed upon a more immoveable foundation. And, on the contrary, by every act of vicious indulgence, we give our passions more uncontrolled power over us, and diminish the power of reason and of conscience. Thus, by every act of sin, we not only incur new guilt, but we strengthen the bias towards sin, during the whole of our subsequent being." Gentlemen, I have shown you how wonderfully corroborated is this testimony of Phelps. It does not rest upon him for its truth, even if we conceded his untruthfulness. His evidence in this case stands so fortified, so necessarily true by reason of the corroborations, it is so full of consistencies, that we must still believe it. Speaking of the power and effect of such consistencies and corroborations, Starkie remarks: "So far does the principle extend, that in many cases, ex. cept for the purpose of repelling suspicion of fraud and concert, the credit of the witness himself for honesty and verity, may becomewholly immaterial." I have heretofore noted the vast detail and variety of circumstances which the testimony of Phelps includes and goes over. The Court will instruct you that it is one of the great ear-marks of a truthful witness; keeping nothing back; disclosing every pertinent thing; and affording to the adverse party every opportunity of following in his footsteps, and detecting his errors; "affording a wide field for contradiction, if his testimony be false."] I have heretofore pointed out to you, in canvassing his testimony before you, many of the inherent evidences of truth which it contains. I now beg to submit if it is probable, nay, if it is possible, for living man to have fabricated such a story; to fill it with details, dates, time, space, and circumstances; changing from point to point, and embracing such a variety of persons and incidents; to cling to it through every effort to disturb him; and come out from it as uncontradicted as this man does. If truthful, he might narrate and renarrate the simple truth, and never vary; but if false, I hold that it would be a moral impossibility. I submit to you, gentlemen, that the story of Phelps is natural, probable, consistent, corroborated; unlikely, if not impossible to be false, under all the circumstances; and is stamped with every evidence of truth, the whole truth, and nothing but the truth. Gentlemen, having thus passed over Phelps and his evidence, save' as to the two points yet remaining to be hereafter noticed, I turn to Lake, and his. I will not consume much of your time on this branch of the case. If I have succeeded in establishing before you the fact, that Phelps' evidence, in all material respects, is in the law and in reason entitled to credence, then it is useless to travel over that of' Lake in detail; for as far as it goes, it is substantially thesame as Phelps; is corroboroted by the same or similar circumstances and4 witnesses; contains many of the same inherent marks of truth; is equally consistent and probable; and in some of its features has not even the grounds of suspicion which counsel supposed they detected in the other. Lake is still a young. man. True, he too has been to State's Prison; but not for an offense which even at common law would have rendered him infamous, or barred him fromi testifying in a court of justice. He was convicted for procuring to be carried into a county jail, a file to aid a friend in making his escape. It was a violation of law; it deserved punishment, and he received it. But I submit to you that such an act, and especially done by a mere youth, as he then was, in behalf of an imprisoned friend, does not necessarily evince a bad heart; nor does it in law or morals constitute any reason for doubting his truth, or refusing him credence. He has lived' long in the State, yet there is no impeachment against him. He is 368 not successfully or materially contradicted; and but one fact has transpired to justify us in suspecting his morals, and that but in one respect, and not pertaining to the truth of his story here. He and Phelps in States Prison; they were not particularly friendly there, indeed at times were inimical. You reccllect, and I wi 11 not detain you to rehearse, the accidental meeting between himself and Phelps after both were released from Prison; and the circuma stances under which Lake became engaged in the service of the Rail Road. I will recall to your minds his demeanor on the stand before you. I appeal to you if it was not prepossessing, frank, and kindly. He answered fully to direct and cross examination; gave details at length and appeared to be neither moved by prejudice, or warmed by zeal against these prisoners. Why should Heman Lake not be believed? The learned counsel for the prisoners amused himself through a four months labor, by picking out and serving up for ycur benefit, various little differences between the narrative of Phelps and Lake; and says, that when present at interview with some of these defendants Lake details some incident, remark, or fact additional to that related by Phelps, or vice vetr sa; that he sometimes ascribes a remark to one defendant,when Phelps puts it in the mouth of a different one &c. Gentlemen, we are not engaged in children's play, but in a serious struggle in the battle of life. Grown up, intelligent and experienced men, are not by such means to have their minds diverted from the truth. You need not to be told that different persons will narrate different facts, and words, and scenes, in different language; that one will forget, or remember a distinct fact which another may not; that one hears or observes what another does not. Opportunity, strength of memory, power of observation, distinctness of vision; a large variety of circumstances, all tend to produce a variety of descriptions of the same thing, from a variety of narrators, and yet the tales of all will be substantially true. In the language of Starkie, "it is to be observed that partial variances in the testimony of different witness, on minute or collateral points although they frequently afford the adverse advocate a topic for copious observation, are of little importance unless they be of too prominent and striking a nature to be ascribed to inadvertence inattention or defect of memory;'" and he might have added further to the list. Apply this principle to the alleged variances between Phelps and Lake, and it covers nearly the whole of them. Nay, gentlemen, I submit, that the alleged differences strengthen the testimony of these witnesses, for they repel the idea of concert, and show that each gave "the substantial truth under circumstantial variety," just as it occurred' to their memories without practicing to swear alike. But the Counsel tells you Lake swears that in arriving at Filley's they enquired of him if " the boys" were there, although according to his version he and Phelps had just passed Leoni where " the boys lived." The answer is ready. Only a few of "the boys" lived at the village of Leoni; and again, Phelps and Lake, both claim to 369 have passed not through Leoni, but by a different route, and hence the greater the pertinency and likelihood of the enquiry for "the boys." But we havesorne more grave objections. Counsel tells us that Lake's statement as to the interview with Filley when he arrived there on the 1 Ith of April is false, and unfortunate for his truth, because Kane and Allen, who came down to sport, took Filley off to the pond, about half past twelve, before Lake came, and kept him there till between 3 and 4 o'clock P. M. This.. presents no difficulty. Turn to the testimony. Phelps and Lake got to Filley's about noon. Phelps drove off; Lake "got something to eat, and being sick soon went to bed." Soon after, Kane and Allen came, took their dinner, and went off with Filley; no discrepancy whatever; and Lake himself testifies to the fact that they were there. But Lake blaims he only slept an hour, and came down and renewed his talk with Filley, when in fact Filley was off at the pond. It is.not likely that Lake, who it is conceded was there that afternoon, would locate an interview with Filley when he was absent; knowing it could be readily disproved. It is far more likely that an interview did occur, but at a later hour; that Lake worn out with fatigue, and weak with the remains of sickness, sank into a deep sleep, which lasted much longer than he then supposed or now recollect. But counsel tell us that if he was sick before, he must, like Don Juan, in the ship-wreck have "fallen sicker" to have thus enlarged his repose. Oh! What a fall was there my countrymen, fi'om the classic and chaste reading of the virtuous Addison, clear down to the forbidden pages of Don Juan! I feared the learned counsel, having given us a slight specimen of his light readings, was about to continue with the ejaculation of the sea-sick lover till he would have to exclaim with his hero as he grew sicker,' For God's sake let me have a little liquor, Pedro Baptisto, help me down below.' Gentlemen, 1 leave such trifling and return to Lake. The hour of adjournment has about come, and I will not pursue his alleged contradictions. Several of those against him, have already been answered in the course of this argument in reference to Phelps, and as to anything which may remain, you will find if it is deemed necessary to pursue them, that they can be quite as readily disposed of as those I have already refered to.'The corroborations of his testimony are as palpable, thick and convincing, as in the case of Phelps, and all the reasons why he should be beleved, arising from consistency, demeanor, corroborations, probability, detail and inherent truth of his story, which were urged on the argumrent as to Phelps, here exist and might be again repeated. He had no revenge to gratify against a single defendant. He is still in early manhood, with feelings apparently fresh and kinadly.- No motive to perjure himself is suggested, and I insist that 24* 370 no man without more years, more experience, education shrewdness: and talent than Heman Lake possesses, could have woven such a tale, or adopted it from the rehearsal of another, adhere to it with such exactness, giving in dates, time, place and circumstances, and cling to his story through such a cross-examination, come out from it unscathed and remain to the end so uncontradicted, unless on the hypothesis that it was the truth he narrated and adhered to. Had it been a mere fabrication, confusion, contradiction and disgrace would have marked its progress and overwhelmed its author. I leave him with you: you will understand, that fear of trespassing on your kind attention, alone, prevents me from more fully vindicating his evidence, and refuting the assault made upon it. I feel it is not necessary, nor will I stop to give an analysis of what he testified to before you. Suffice it to say, that he mingled with these defendants freely, was trusted and relied upon by them; that they freely conversed and unbosomed themselves to him; that they deemed him a member of their conspiracy; an agent to effect and consummate their vengeancee, and he was hallowed in their sight by supposed maturity in crime. Thus familiar with them, their thoughts, feelings, designs and deeds, he confirms to you all others have said of their deadly malice against the Railroad company; of frequent depredations against their rights; of fearful obstructions on their track, and of a deep determination to continue on their lawless course, until they brought the company to terms. He swears to you distinctly that part of these defendants, whom he names, had contributed to the burning of the depot in Detroit-rejoiced over its destruction, and were intending, and devising ere long to gloat their vengeance with new fires, and continous destruction, of every depot along the line of theroad. I will not trouble you further to-day. To-morrow morning I will briefly refer to the meeting between Phelps and Ami Filley at Jackson, after the attempt to burn the Niles depot, testified to by Van Arman, Clark, Spaulding, and Phelps; to the testimony of Faulkner, and to the declarations by several of these defendants on board of the cars after the arrest, as proven by Dr. Hahan and others. I will then point out more distinctly than has yet been done those of these defendants who stand identified with the overt act, charged in the indictment, and, having done this, I will hurry on to the close and leave the rest with you. (In consequence of the temporary illness of one of the Jurors, the. Court adjourned from day to day, until Thursday, Sep., 25th, when, the Court being in session, Mr. Van Dyke continued his argument as follows): Gentlemen:-I cannot refrain from expressing my gratitude on this beautiful morning, at seeing Court and Jury before me, all again in the enjoyment of reasonable health and vigor-prepared to go through with what yet remains of this protracted trial. But espe^cially must it cheer you, as it does me, that there is every probabili — 371 ty ofto-morrow's morn finding us free from all these labors, respon' sibilities, and cares, to breathe fresh, unburthened by them.I announced to you, at our last adjournment, the few points which I deemed it proper to yet call up and discuss before you. I will proceed to them at once, but before doing so beg to briefly call to your minds that portion of the case and argument already gone through. (Here counsel reviewed briefly his previous argument, and continued): You of course recollect the scene at Filley's bar-room, on the evening of April 11th, as described by Phelps and Lake. The importance of the testimany on this point is manifest, as it affects the whole case. If true, it must go far to lead your minds to a conclusion; for it tends to show that Wescott testified truly when he told;,you, that burning depots was within the scope and extent of the conspiracy. It proves the modns operandi: a match in possession of defendants to accomplish the arson,,and thus links that material factwith the matches at Gay's and his use of them. It corroborates powerfully Phelps and Lake, confirms the theory of this prosecution and connects and identifies part of these defendrnts with the continuous carrying into effect of that conspiracy, of which the arson of the Detroit Depot was merely an earlier step. The learned counsel for the defence passed this part of the case over lightly; suggested that Faulkner was a stranger, and probably cofifused, and that the whole affair was of but little moment. But one theory is given us by the defence, to account for the facts testified to by Faulkner, viz:-That there was a scheme of wickedness set on foot there that night; that Phelps and Lake were being fitted out on a " bogus" expedition. I will go over this point with sufficient care, and feel free to say to you, and believe you will soon agree with me, that it is one of fatal force against this defence; that their theory wholly fails to account for the facts which occurred: but that that they are reconcilable with the theory of the prosecution, and with none other. And first: Who is John Faulkner? You observed him on the stand-modest, respectful. and intellgent; his appearance striking every beholder most favorably; his recollection apparently so distinct; his memory so clear; his whole demeanor free from confusion, and enforcing the simple narrative he gave on every candidl mind. He is a resident of the beautiful village of Marshall, where he has resided for years, and where, as you are assured, he has received, by his course of conduct, the good will of his fellow citizens and a reputation beyond his station in life. I need not tell you, that he is here wholly unimpeached, contradicted, and unquestioned; even counsel on the other side, have had to admit his honesty. Thus stands John Faulkner before you. And you will bear in mind, too, that, up to the night he speaks of, he had no acquaintance with Phelps or Lake. Now hear his story, which I must give you in his own words, and at some length. "I reside at Marshall; been there seven years; am a cartman remember onthe 11th April last, going to Michigan Centre; left 372 Marshall on the cars, got off at Grass Lake, and went back to the Centre on foot; at Grass Laee saw Mr. Clark, the only man I knew; I had an axe and small budget with me; when I arrived at the Centre I stopped at Ami Filley's tavern; Filley was not there; Mrs. F., and a girl they called Bridget, and a boy and a Mr. Lockwood were there; L. soon left. I asked for supper and lodging; while at supper, Phelps, Lake, and a mantthey called Win. Corwin, and Daniel Myers came into the bar-room; found them there when I went out. When I first went into the bar-room they were talking low together; could only once in a while hear a word; head these words from Corwin, "yes after we pet through:" and " think we can come it." After they got through they went to the fire-place, and Phelps said loudly, "boys, when I get back fromn Niles, we will have a time." Corwin replied, "yes, we will, we will tear down TKi rkeneall's bar, and this too;" something was said about pay; Corwin said, "I am willing to pay something in advance," and took out his wallet and gave him something. Phelps remarked, "this will help pay expenses over the road, all paid in advance helps like hell." They continued to talk, and -.ent out doors, and soon after came back with two others, whom they called Hudson and " Hi. Hay." They talked privately; soon a man came in they called " Capt. Fitch;" it is the same one here now; he said, "boys, how do you do?" and shook hands with Phelps; asked what's the news. Phelps replied, about as usual. He then went round from one to another asking, "what's the news." He asked Bill Corwin three several times, "what's the news?" they all went out doors, were gone about five minutes and came in again; Phelps and Capt. Fitch stood by the counter alone; the rest sat down on a bench. Heard Fitch say to Phel-s, "when you get back I shall be ready, I shall be flush then." Before Fitch came in, Corwin said it should be right, and money would be flush; this was the time when Phelps spoke of when he would get back from Niles. Soon after, they all went out again, and I moved the light from the bar counter to the mantle-piece; Corwin, Phelps, [fay and Hudson, or Myers, came in agsin in a short time; Corwin unlocked a door leading to a small room, and went in the dark, he brought out a small box, five or six by ten or twelve inches in size; in locking the door he had to use both hands, and the boz slid doiwn, but he caught it before it struck the floor, he then locked the door and put the key in his pocket; Corwin theln passed out doors with the box, and Phelps got up and shut the outside door and put hiis back against it, saying no one could go out, the others tnen went out a side door, and Phelps then opened the one he was holdi ng, anb went out and left it open; I looked out and saw Corwin and Myers under a shed near; very soon they came from the shed and put the small box Corwin carried out under the seat in a one horse wagon standing near by; Lake came from the shed also; Corwin went to another wagon, -and'untied the horse; Lake went to the wagon where the box was, andocalled Corwin, and asked is "that all rigaht?" Corwin answered 3783 "yes." Lake and Phelps got into one wagon, a:'-I Corwin and Myers into the other, and they droue off, that was the last I saw of them, they were about there some two hours; I saw nothing else put into the wagon; saw a jug of whiskey, but don't know what was done with it. They asked Capt. Fitch to drink, but he refused, saying it gave him a pain in the side. Corwin told him he need not fear it, as he had paid for it. Pitch stood on the opposite side of the wagon when they put the box in. There was something said about going to Lansing. When they talked, they generally stood close together, and spoke low, so I only heard a part of the conversation." [Here a box containing the match placed in the Niles Depot, was exhibited to the witneness, and he recognized it as the one, or ex-.actly similar to the one Corwin took out of the room and put in the wagon.] " I saw the same box the next day at Bank's office in Marshall." Gentlemen, it is true then, that Phelps and Lake, Fitch, Corwin and the others alluded to above, were at the bar-room of Autmi Filley on the night of the 11th of April last. It is true that something peculiar and unusual did occur, and that private conversations took place between the actors. The expedition was being fitted out for Niles, to be performed by Phelps, and on his return, he was to be paid for his exploits, which were to be celebrated by tearing down Kirkendall's bar. To a remark of Phelps, Corwin says " yes after we get through," and he was " willing to pay something in advance." And Fitch says " yes, when you get back, I shall be flush then." You observe too, that Corwin brought the box from the small room, and was it placed as described in the buggy of Phelps and Lake, who were afterwards sent on their way. Now, what is said of this strange scene? Is it met fairly and overcome, or is it sought to be avoided by sophistry? If the latter, it only stands out the more prominent, as not being capable of explanation or disproof on the theory or evidence of the defence. It was suggested on argument that it was a bogus expedition-a joint operation to circulate false and counterfeit money. See the inconsistencies to which erroneous theories are driven. This defence tells us at another time, that it is ridiculous to suppose that Capt. Fitch would have anything to do with' bogus money," and that all the search of the police never found a vestige of it, or of implements to make it, about the premises of any of the defendants. But if filled with counterfeit coin, could Corwin have carried such a box, thus weighty, under one arm, use both hands to look the door and catch the box as it slid down, before it struck the floor? If only partially filled, would not the rattle and noise of the box thus sliding down and caught, have attracted the notice of the attentive Faulkner? And as to counterfeit bank bills, it occurs to you at once that it would be an unlikely mode to be selected for conveying them through the country for circulation. But on this theory, rThy was Phelps to be paid on his"return? Would he not rather have to 374 divide the spoils with them? Why was his return to be the cause of so much rejoicing? Why was Niles alone mentioned as the place of his proposed action? You see gentlemen, that the whole transaction, everything said and done, is inconsistent with the attempted explanation. The learned counsel, who last addressed you, says that Faulkner was a stranger; confounded one with another, and heard only a " suppressed conversation." Faulkner was a stranger, but exhibits no likelihood of confusion. He was too cool, too observant, too intelligent, to have confounded one with another. He shows no -sign of it here. He swears distinctly, and designates in open Court, without mistake or " confusion" the actors of that evening. True he did not hear all the conversation, but he saw all that transpired, and heard enough to render his narrative clear, and free from all ambiguity. The sentences he does give, are perfect in themselves:and of convincing import. But counsel say, Phelps was playing a part, " that he spoke aloud, only occasionally, when he desired a catchword to reach Faulkners ear." Faulkner only gives one instance of Phelps' speaking loudly, and he tells you he heard the expressions from Corwin and Fitch with perfect distinctness, and which of course Phelps could not have produced as cues or catchwords. But it is further objected that it is manifest that Faulkner is mis-,taken in supposing Fitch spoke of" being flush" on Phelps return, because if heard by him they would also have been by Hudson who swears he did not hear them. Sulelv this is a non sequitur. In the language of Starkie on evidence. If one witness was positively to swear he saw or heard a fact, and another were merely to swear he was present, but did not hear or see, and the witnesses were equally faithworthy, the general principle would in ordinary cases create a preponderance in favor of the affirmative." But again, you will recollect that Hudson was a most inattentive observer. He says " I do not pretend to speak accurately as to time," does not know when Fitch left the room; he did not see even the box, although he says, one of the defendants, (Hiram Hay,) on the way home,'" spoke of their having a box." Hudson confirms several of the expressions, and circumstances testified to by Faulkner, and contradicts none of his statements. He merely did not see, or did not hear. Again, counsel say, Fitch had left the party and returned home, before the box was placed in the waggon, and therefore Faulkner is mistaken in sayiug he stood on the opposite side of the waggon on the occasion of putting in the box. Who proves this? If reference is had to the testimony of Cross and Amanda Fitch, I have examined it heretofore. But it is said, that neither Lake, Phelps or Hudson pretend that Fitch was present at the place assigned him by Faulkner. Gentlemen, I will not delay to look at the evidence of Lake and Hudson, any felony, may be indicted "either with the principal felon, or he may be indicted and convicted of a substa'ntive felony whether the principal felon shall or shall not be answerable to justice." The authorities relied on by the defendants' counsel, only establish the position, that where the principal was indicted with the accessory,and the former failed to appear to take his trial, that the latter was not compelled to plead to the indictmentfor the time being: the decision goes no further. It is to be observed, that in the present case, not only did all the defendants now on trial, plead to the indictment, but by express stipulation they have gone to trial, and the objectionis now urged for the first time, when the trial is about to be closed, and after the consumption of months in the examination of witnesses. The parties have, therefore, waived any objection which it might have been competent for them to make on this hlead. Again, the defendants insist that this is not an indictment for a substantive felony against accessories before the fact because the concluding clause in the second count charges G. W. Gay with having committed the crime, but it seems to me it may be considered and treated as such an indictment, notwithstanding the clause to which allusion is made. It contains all the elements of an indictment for a substantive felony, and the clause alluded to may bWtreated as surplusage. It cannot possibly vitiate a charge properly put upois record; any informality on this head (if this may be considered as such) is, abundantly cured by our Revised Statutes, page 700; sec 34, which declares that "No indictment shall be quashed or deemed invalid, nor shall the trial,. judgment or other proceeding thereon be affected by reason of any defect or imperfection in matters ofform, which shall not tend to the prejudice of the defendant. In the case of Regina vs. Wallace 41, E. C. L. 113, which was decided subsequent td the cases cited by defendants' counsel, the indictment was against the principal and the accessories. It seems the principal had not been tried for the offence, and it appeared he had not been amenable to justice. Amongst other objection's it was urged by the counsel for the defendants in that case: that "the indictment was not properly framed as an indictment for a substantial felony within the meaning of 7 Geo. 4 Chap. 64. 8, 9, (which is in precisely the language of our Revised Statutes) but was in form an indictment at common law against the principal and the accessories before the fact, and that, as the principal felon had not been convicted, the accessories before the fact could not be tried or convicted upon it. Oh. Jus. Findall overruled the objections; the prisoners were found guilty, and all the objections were reserved for the opinion of the fifteen Judges of England. The result was that all the objections were overruled, and the conviction held right. It is worthy of remark that the count against the principal in that case contained the very clause to which exception is taken in the case before us. See 38, E. C. L. Ash vs Fay, 126, 2;5. Upon the authority of this case, therefore, I hold the objection to be untenable. It is no part of my duty, as a Judge, to en deavor to convince your minds. of the guilt or innocence of the prisoners. I shall have done, that which is required of me, if I give to you the law of the case, and direct your minds to such rules as will furnish accurate guides in the investigation of the facts. Yon have the evidence before you in the form of a book,to which you can refer at any moment. It has been rehearsed before you seven times within the last fortnight by the counsel upon both sides: they have employed great eloquence and skill in pointing out all its strength andall its weakness. I am persuaded it could answer no useful purpose for me to spend two, more days in going over the same ground, whether by the same or other paths. No explanation that I can give would throw any further light upon the testimony. I shall therefore omit a detailed notice of it as it bears upon the charge in the indictment, and content myself with stating the theory of. the charge and ot the defence, and then turn to a consideration of the points of law and rules of evidence applicable to the case. The theory of the case presented by the evidence on the part of the pror 390 cution, is, that the Michigan Central Railroad Depot in thecity of Detroit wasburned on the evening of the 18th of November last past, by George Washington Gay, by means of a match, that the defendants aided and assisted him before the fact, by furnishing him the match, and by paying him for doing the act. That for two years past the defendants, or some of them, have beenengaged in a conspiracy to destroy the property of the railroad, including he cars, engines, rails and depots, with the view to extort money from the Railroad Company. That pursuant to this combination or conspiracy, they have from time to time placed obstructions on the road, run the cars off the track, stoned the passenger cars, burned lumber near the track, have written threatening letters to the agents of the Company, and finally procured the depot in Detroit to be burned by Geo. W. Gay, and the Depot at Niles to be fired by Phelps and Lake, and that all these acts have been committed pursuant to a concerted plan between these defendants. The defence has been conducted upon the theory that no combination or conspiracy ever existed between the defendants to injure or destroy the property of the rail road company. That the several acts of injury to the road, cars, engines, and track were not committed by them jointly, or severally, and if they were committed by them severally there was no concert between them, and therefore whatever either of them may have done cannot furnish evidence against theothers in this case. That the depot was not fired by them or by their procurement but took fire either by accident or was fired by some of the witnesses tor the prosecution. That the various acts of aggression proved to have been committed upon the road, cars, and engines, were not committed by defendants, and that the evidence of all the witnesses, implicating them in:the commission of those. acts, is untrue. That the evidence of Phelps, Lake, Wescott and others in reference to the confessions of Gay and of the severaldefendants is untrue. That instead of a conspiracy having existed between defendants-Phelps, Lake, and Wescott and others have conspired against them, burned the depot, committed the injuries to the cars, track, and engines, and fired the depot at Niles and have charged it upon the defendants for the purpose of securing to themselves such reward as might be offered for the detection andapprehension of the offenders. That Phelps and Lake having been convicts in the State Prison are unworthy of credit. That all of the witnesses for the prosecution have been discredited either by their own evidence, or by the testimony of the witnesses for the defence. Th-at Phelps has been impeached. That the supposed confessions of Gay are not admissible in this case to prove his guilt, but it must be proved aliunde and that the supposed confessions of either of the defendants on trial, cannot be given in evidence against any person but the one who made them, as they purport to have been made long after the acts to which they relate were committed and therefore do not form a part of the res geste. At an early stage of the trial, the question arose whether any proof should be received, which did not point directly to the burning of depot. The court permitted testimony to be adduced before you showing various acts of aggression against the property of the railroad company, said to have been committed by the defendants or some one or more of them, as well before the commission of the crime here alleged, as afterwards. Such acts, if committed, tend to prove a conspiracy to commit the offence charged in the indictment, as well as the origin of the plot. They tend to show a morbid and hostile feeling if any existed on the part of the prisoners, also to prove the identity of the accused and their connection with the crime charged. Also to show the character and entire history of these transactions, and to corroborate and fortify the evidence adduced in the cause I0 Pick. 510. If the charge of conspiracy said to be involved in the commission of this crime is proved against the prisoners, then it is weighed as evidence in this case, which tends to estab" sh the guilt of the prisoners. It is a question of evidence for the consideration of the jury. It makes no difference that we call it a Conspiracy; any agreement between several persons to do an unlawful act is a Conspiracy; and the law applicable to conspiracies is applicable to such agreement. The evidence was not received for the purpose of showing separate and distinct offences, either by the defendants jointly or severally, and with or without concert, evincing such a degree of moral turpitude, as rendered the defendants capable of committing 391 the crime here charged, and from which you should be at liberty to draw the inference that they did commit it; for such purpose, the evidence would have been clearly inadmissible on the ground of irrelevancy to the issue. It was admitted to show a general combination between the defendants, having in view the ultimate, though contingent, burning of the Depot at Detroit;'to show that. as defendants were still working out their original plan, they had not abandoned it up to the period when the depot -was burned, and thus show-or raise a presumption-that their scheme was in full force when the depot was burned. The most important scene in this great drama is yet to be enacted, and you are to be the actors. I am confident you will not shiink from your duty, but that you will faithfully and conscientiously perform your part. Your intelligence will enable you to arrive at such result as the facts and the law of the case will authorize, and as will be satisfactory to your own minds. In your deliberations you cannot too highly estimate the importance of keeping within the line of your duty-of divesting your minds of all undue prejudices, and of all considerations which do not properly and fairly spring from the proof as it has been submitted to you in open court. In the ordinary walks of life, your minds and your hearts are often excited by whatever agitates and quickens the public pulse, and you yield to those influences which surround you in the domestic circle, in society, and in the public streets, without stopping to trace them to their true source. It should be otherwise withyou as jurymenyou should be governed solely by the law and the testimony. Never before in this State has a jurybeen empanneled, from which would be-expected a more careful observance of all the rules that should govern them, than in this case. You have had abundant time, us well as means, for the examination of the evidence, and for reflection, and it is my most earnest hope that you may be able to agree upon a verdict. In reviewing the evidence, you will have to discriminate closely, to enable you to separate from the great mass of it, that portion upon which you can rely, and to discard that part which seems to be unworthy of credit. Until you have done this, you cannot hope to reconcile any conflict which may be found to exist in the testimony of witnesses who have exhibited a desire to speak the truth, but who, from the infirmities of their natures, have been unable to understand or relate' what they have heard and seen, precisely alike. It should be your first duty to see that you understand the facts alike; you will thus lay the proper basis for deliberation. Should it appear probable that you may differ in your views of the material facts of the case, then will arise a necessity for the exercise of the greatest degree of caution. You should avoid (as far as possible) forming or expressing a decided'opinion upon the merits of the case, until you are satisfied that you understand the case in all its bearings, and have received all the light that your mutual suggestions can'impart to it. Adherence to first impressions ought not to be carried too far.No juryman can be morally certain that he is right, and he is much less likely to be right when heated by argument, than when his pride of opinion is kept under subjection to his judgment. Hence the necessity for great forbearance towards each other. Without great care, your adherence to opinions hastily expressed, may be the result of stubbornness, prompted by pride of opinion, after you are, or should be reasonably convinced that you are wrong. It will be your duty to agree upon a verdict if possible, as the consequences of a disagreement would be very disastrous to both parties; but if, after a careful review of the evidence, and a clear comprehension of the facts and the law,ofthe case, any one of you should feel compelled to differ from your fellows, let him be sure that his views of the case i esult from the exercise of the best judgment he can bring to bear upon it; being thus satisfied, it will be his duty'to abide by his opinions, for each party is entitled to the deliberate and carefully formed opinions of every juryman. It is a cardinal principle, which you are to bear in mind, that you are to'hold the defendants as innocent until they are proved to be guilty; this legal presumption of innocence is to be regarded by you as a matter of evidence, to'the benefit of which the defendants are entitled. Where a criminal charge is to be proved by circumstantial evidence, the'proof ought to be not only consistent with the prisoners' guilt, but incoCsistent with any other rational conclusion to be drivn from the proof. On the 392 other hand, as men seldom do unlawful-acts with innocent intentions, the law presumes every act in itself unlawful, to have been criminally intended, till the contrary appears. This legal presumption embraces all of sympathy that you are permitted to indulge. Allow it to have its proper influence upon your deliberations. Its adoption into our code, was the result of a just appreciation of the highest standard of judgment, for it permits each of you to say to the defendants, if these witnesses do not condemn thee, neither do I. Further than this, it does not extend; it allows to you no latitude for the exercise of more mercy; it appeals to your understandings, not to your hearts; it calls into exercise the best efforts of your mind, as it demands that you should attempt to separate truth from error. It is not required that you should be morally certain that your judgment is right beyond all peradventure, for the rule is addressed to human minds liable to err, and must be applied by minds of various grades to human testimony. All that is required is, that you should have evidence satisfactory to your minds, "by which is intended that amount of proof which ordinarily satisfies an unprejudiced mind beyond reasonable doubt.The circumstances which will amount to this degree of proof can never be previously defined, the only legal tests of which' they are susceptible, is their sufficiency to satisfy the mind and conscience of a common man, and so to convince him that he would venture to act upon that conviction in matters of the highest concern and importance to his own interest." It is because men do not generally violate the penal code that the law presumes every man innocent, but some men do transgress it, and therefore evidence is received to repel that presumption. The moment you are reasonably convinced the evidence in this case is sufficient to overcome this presumption, it should thereafter cease to influence your minds. You must adhere closely to the proof, and adopt such conclusions as are produced on your minds, by reasonable and fair deductions from it. It has been often said, and it has been urged in this case, that you should give to the prisoners the benefit of any doubts you may entertain of their guilt. T his is true. It is, however, proper that you should understand what is meant by such a doubt as the rule contemplates. If, (and I state it by way of illustration,) the proof shows that there were two ways by which the depot may have been fired, and that, according to the proof, both ways were adequate to that result, and you do not feel a reasonable degree of assurance that it occurred by the agency or procurement of the defendants, as opposed to the supposed action of the machinery, or a light in or near the wheat bins, your doubts would arise from the proof. But you are not to imagine a circumstance to which the proof does not point to furnish the basis of a doubt of that which' is reasonably proved to be trne. In short, you are not to doubt whether or not the depot may not have been fired by lightning from heaven, without proof that it lightened that night. Of the general proposition, that "upon an indictment against an accessory, a confession by the principal is not admissible to prove the guilt of the principal, but it must be proved aliunde," there can be no doubt. But Mr. Russel, in his Treatise upon Crimes, in thus stating the law, adds-"especially if the principal is alive and could be called as a witness;" thereby impliedly limiting the restriction to the reception of confessions of a principal who is alive. I suppose the rul in such case to be partly founded on the same principle as that which excludes the confessions of one conspirator against another. In that case, or in case of other crimes perpetrated by several persons, when once the conspiracy or combination is established, the act or declaration of one conspirator or accomplice in the prosecution of the enterprise, is considered the act of all. Each is deemed to assent to or commend what is done by any other in furtherance of the common object, but after the common enterprise is at an end, whether by;accomplishment or abandonment is not material, no one is permitted by any subsequent act or declaration of his own, to affect the others. His confession, therefore, subsequently made, even by the plea of guilty, is not admissible in evidence, as such, against any but himself. If it were made in the presence of another and addressed to him, it might in certain circumstances be receivable on the ground of assent. In fine, the declarations of a conspirator or accomplice are receivable against his fellows, only when they are either in themselves acts, or accompany and explain acts, for which the others are res 393 ponsible, but not when they are in the nature ofnarrations, descriptions, or subsequent confessions. I Greenleaf's, (Evi. Edit 1850,) sec. 232. It is urged by defendants' counsel that the coi 3ssions of Gay and other admissions and statements of Fitch, are embraced by the latter part of this rule of law as stated. It may be remarked, however, that the direct evidence in relation to Gay's confessions was received on the first day of the trial by the express consent of defendants'counsel, and under a stipulation that defendants' might omit the cross examination of the witnesses until such time in the course of the trial as they might choose to recall them for that purpose.If the evidence was incompetent the defendants should have objected to its reception, and if after it was received without objection they might have moved to strike it out and under the circumstances attending its reception the court might have felt it to be their duty to entertain such a motion, but defendants' counsel instead of doing so, recalled the witnesses after some weeks had elapsed and entered into a very extended cross examination upon various points embracing this amongst others, and no question was ever made as to the legality of this evidence until after all the proof was closed and the defenddants' counsel addressed you in reply to the opening speech of the prosecuting attorney, in which he commented upon it. The rule which excludes such evidence was intended (as are many rules) for the protection of defendants, but they can waive this or any such rule of law, and having done so in this case, and permitted the evidence to go to the jury, they have now but very slight grounds if any upon which they can exact its exclusion. At the same time I prefer to say to you, rather as a matter of duty, as requested, viz: that "the statements of George W. Gay, the alleged principal, are not evidence for the purpose of showing that any of the prisoners were accessory to his criminal acts or in any manner connected with him." It seemed to be the understanding of the prosecution at the time this evidence was received that it was offered and received rather to show the theory of the prosecution in this case, than as a material or substantial part of the case, and it has been so treated by the prosecution and defence during the progress of the trial and in their arguments to the jury. What I have now said applies as a matter of course to the confessions of Gay as to his own guilt. I state this however with a caution to you, that you will not lose sight of the distinction that exists between his mere statements and his acts, which are traced home to the knowledge of any of the defendants, nor are you to lose sight of any admissions which they may have made in reference to him, nor of the evidence in relation to the matches found at his house, these are legal evidence in the cause. The evidence of the admission of Fitch stands in a position somewhat different. It was all received previous to his death, and was admissible. In,the closing speech of the counsel for the defence it is urged that "his statements and admissions are not legal evidence against the remaining defendants, and that they must be withdrawn fuom the cause." To this proposition as stated I cannot yield my assent. Whether those statements and admissions are evidence or not, depends upon the existence of the conspiracy and time when they were made. If you find that a conspiracy did exist, and those admissions and statements were made during its progress, they are evidence, but as I have stated, if they were made after the objects of the conspiracy were accomplished or abandoned, or as a narrative of past transactions, they are not evidence. The rule of law last quoted ftom Greenleaf applied to the evidence of Smith's admission. They are not evidence to prove the guilt of Gay' as principal or to charge the other defendants as accessories. The defendants have introduced a large body of evidence tending to impeach the character of Phelps for truth and veracity. In examining this evidence, you will be careful to ascertain whether the witnesses have the requisite information, to enable them to testify uncerstandingly. According to the legal rule, a witness should come from the neighborhood of the witness who is.to be impeached, at least he should be acquainted with his neighbors, and know what his general reputation for truth is, in that neighcorhood, aud it may be traced back to other places where he has resided. In this case the counsel by common consent, have extended the rule to places where Phelps has been in the habit of transacting business and the same remark will apply to those places. The witnesses should testify as to their knowledge of his. 394 reputation for truth. The inquiry should not be as to his general character, eras to any particular traits of character, but his truthfulness. You will also ascertain whetherhis reputation for truth is made to depend in any degree on what is said of his evidence in this court. If you find this to be the case, Ao far as it extends you will reject it; for of the truth of his evidence in this case, you alone are to judge. It will not do to receive evidence in a case, and then take the opinion of any community upon it, that would be placing such community in your place; to perform your duty. I will here advert to another portion of the evidence, introduced to support the character of Phelps for truth. It is urged that many of these witnesses say they have never heard his character for truth called in question, that therefore they cannot know anything about it, and consequently their evidence is of no account. But, if the witnesses reside in the same neighborhood and are generally acquainted with his neighbors, you are to regard their evidence in that particular, as the strongest that can be given of his truthfulness, for common experience teaches that a man's character for truth is seldom or never discussed until it is bad, or in some way questioned. Phelps has testified that he was convicted some years since of the crime of larceny, and was sentenced to imprisonment in the State prison for the term of five years, but before the expiration of that time, he was pardoned by the Oovernor, upon the petition predicated upon his alleged innocence of the offence for which he was imprisoned. Lake has testified that he was convicted of the offence of attempting to aid a prisoner in the Wayne county jail to escape, and was sentenced to imprisonmpnt in the State prison, and remained in prison during the whole period mentioned in his sentence. No question has been made as to the competence of these two witnesses. As our Revised Statutes, page 99, provides that no person shall be excluded from giving evidence in any matter, suit, or proceedings, civil or criminal, by reason of crime, &c. These men are therefore competent witnesses, however much discredit may be attached to their evidence in consequence of their conviction and sentence. The fact that their evidence is allowed to go to the jury, necessarily tnvolves in it a power in them to believe it-particularly if their evidence is corroborated, its credibility under the circumstances, must be judged of by you. The verbal admissions said to have been made to these and other witnesses, ought to be received with great caution, for if it is concluded that the witnesses are actuated by an earnest desire to relate the very word which they heard from the defendants; yet it is said by legal authors that such evidence consisting as it does in the mere repetition of oral statements, is subject to much imperfection and mistake, the partyhimself may not have expTessed his own meaning, or witness may have misunderstood him or failed to give his exact words or his true meaning. But when admissions are deliberately made, and precisely identified, the evidence they afford is after of the most satisfactory nature. It has occurred in this case, as it often does, that the witnesses do not attempt to give more than the substance of what they have heard, there is no special rule of law respecting such evidence, and I do not know that it should be imposed upon you as a duty, to be more cautious in its reception in this case than in any other. The objection which may be made to it applies to oral evidence of admissions in all cases. If there is any consideration which can give greater force to the caution in this case than in civil cases, it is, perhaps, the acknowledged policy ofthe law in exacting greater caution in cases affecting the life or liberty of the citizeu. But whatever indulgence the humanity and tenderness of judges may have allowed in practice, in favor of life or liberty the better opinion seems to be, that the rules of evidence are the same in both civil and criminal cases. See I Greenleaf's Evi, sec. 65. Woolivar, one of the witnesses for the prosecution, is proved to have acted with the defendants and participated in the commission ofmany injuries to the cars and to the Railroad. In what sense and how fully he was an accomplice, will be for youto determine. This is ordinarily applied to a witness who has participated in the commission of an offnce for which another is indicted and is on trial, but the witness is not named in the indictment or is not put upon trial; and one of the grounds of discredit which attaches to his evidence 4s, that by turning State's evidence-as it is called-he testified under thein 395 Iluence.of a hope that he may be permitted to escape or receive but a slight punishment for his offence. This witness, though he may have done, and aided in the commission of many criminal acts against the Railroad Company.'yet according to his evidence he abandoned all connection with the defendants, and the supposed conspiracy, some two months before the offence was committed with which they now stand charged, If each of the defendants had done the same, (I speak of the theory of the matter) this charge would not have been brought against them, and conse-'quently Wolivar could not have been an accomplice; they are not charged with a conspiracy in this case, nor with having committed any crime to which Wolivar was a party, (unless he was a party to this) andhe having abandoned or stopped short ef doing that which he once may have intended to do, and which if he had done it, would have made him a party to the crime charged against them, is not an accomplice within the legal meaning of the term, and the defendants were not in any sense his agents in doing that with which they are now charged. It is shown that he was quite habitually under the influence of ardent spirits, indeed this was more or less the case with all the defendants; he worked for Ammi Filley by the month, and left his employment- on'the 7th day of September last; he seems to have been at all times quite ready to engage in any desperate enterprise having for its object an injury to the cars'on the road. If he was an accomplice, and had not abandoned the plan by "which it was charged, the defendants carried on their depredations up to and including the offence here charged, then it will be exclusively within your -province to say what degree of credit shall be given to his evidence. Great caution in weighing the evidence of an accompliceis dictated by prudence and reason, andit is usual so to instruct juries. There is. however, no presumption of the common law against the testimony of an accomplice, yet experience has shown that persons capable of being accomplices in crime are but little worthy of credit, vend Mr. Greenleaf in his law of evidence says -that it is upon this experience that the usage is founded. The admission of those who are clearly accomplices, or witnesses for the Government, is justified by the necessity of the case, it being impossible to bring the principal offenders to justice without them. It is expressly conceded, that the jury may, if they please, act upon the evidence of an accomplice without any confirmation of his statements. It is said that judges in a discussion will advise a jury not to convict of a felony upon the testimony of an accomplice alone, and without corroboration, and it is now so generally the practice to give them such advice that its omission would be regarded as an omission of duty, on the part of thejudge. Greenleaf's Evi. sec's 45, 379, 380, 381. The confirmationspoken about must be derived from a witness who is not an accomplice, and it must extend as well to each of the defendants as the offence. It is urged by defendants' counsel, that the evidence of such of the witnesses for the prosecution as swore to the admissions of the defendants, is unworthy of belief, and principally because of the means they employed to obtain those admissions. They have been denounced as spies; it is said they resorted to extraordinary means to obtain the confidence of the defendants, that they might betray them-and that they have done this and muchmore,and worse to accomplish the ruin of the defendants, simply for money, and to advance their own ends. If this be true, if these witnesses have not been actuated in all they have done in relation to this matter, by good motives, but have cast aside all moral influences, and have been governed by the hope of gain or the desire of revenge, or any of the bad passions which are supposed to impel the abandoned and profligate to action; then indeed, they are unworthy of credit. But in pushing your investigations upon this point, it may be well for you to remember, that calling either witnesses or defendants hard names, may excite unfounded prejudice, and unless they are properiy applied, they are but idle breath.-Some of the counsel on both sides have carried this mode of enforcing their convictions upon your minds to a great length. Take the evidence as you have received it from the mouths of the witnesses: leave out the hard words of the counsel, and ascertain for yourselves what is the true character of the several witnesses, and what influenced their minds and hearts throughout all their connection with the subject matter of this prosecution. It is also made an objection to the witnesses, that they were employed by the Michigan Central Railroad Company, which has been characterized as a 396 mammoth monopoly-as possessing great wealth, and, consequently great power and influence. You have been strongly cautioned against its influence, and it has been more than intimated, that its power overshadowed all our monied interest-that it is likely to penetrate our halls of justice-to enter our jury boxes, and extend to the judges upon the bench-and that i has been improperly put forth in instigating and moving on this prosecution. This may be true: and it may also be true, that in the excitement of a public speech, in the presence of a large assemblage of people, an advocate may incautiously and without any design, be hurried on to such a train of remarks as will withdraw the minds ofa jury fiom the consideration of the proof, and the only points inthe case which should engage their attention, far away into the regions of fancy, and to the discussion of topics which may influence the passions, highly excite the prejudices and sympathies of a jury, and mislead their judgments. I do not say that these dangers, which maybe apprehended from either of these sources, are, or have been apparent in this case; but I do say, you should with equal care, guard against the influence of both of these disturbing forces. There is no rule of law which casts discredit upon the testimony of the witnesses for the prosecution, simply because of their connection or intercourse with he defendants, for the purpose and under the circumstances stated by them. They say they went amongst the defendants for a good purpose-a purpose whiph was in no wise connected with a desire to promote the alleged design of the defendants. Neither is there any rule of law which would cast discredit upon them because they were or had been in the employment of the Railroad Company, and receive stipulated monthly or daily wages. This objection would apply to the evidence of any agent. A long series of injuries to the property of the Company, well known to the public, and of a characterthat endangered the lives of travelers as well as the lives of the agents employed on the cars, had imposed upon the Company the imperative duty of guarding their passengers as well as their own property from injury and menaced destruction. The law was powerless, for until it should be ascertained who were the perpetrators of these crimes and injuries, the law could not lay its strong arm upon them. The extraordinary aid of the State authorities could not be invoked or expected, to maintain a constant guard and watch over the road by night. Such care and watchfulness as could be bestowed by the numerous agents of the company were insufficient to secure the desired object. And nothing short of extraordinary means seemed to promise any relief or redress. If we believe the testimony, the Company was finally constrained to employ agents to go into the neighborhood where these ifijuries were committed, for the purpose of detecting the offenders in order that they might be brought to justice. In so doing the Company seem to have violated no rule of law or of honor. It will not br. expected that I should remark upon the conduct of the agents thus constituted,and in speaking of what the Company did and was justified in doing, I pass no judgment upon what is claimed to be an excuse for these alleged aggressions; this subject does not lie in my way, and it is not necessary that I should speak of it, for whether the company had met or failed to meet their obligations to these defendants or to any one else, their rights and.their duties in reference to injuries done or seriously apprehended as described by the witnesses, remained the same. Those agents and now witnesses, declare that they entered upon the performance of the duties thus imposed upon them for a good purpose. They have described toyou the perils of their task; whether those perils were necessarily incurred or not, or whether their conduct was such as to detract from the weight which would be otherwise due to their evidence, will befor you to determine. You are the sole judges of the credit due to the witnesses. If it is apparent from the evidence that their statements in court are unintentionally colored by a strong desire tobuild up a case for the prosecution, and that they have been insensibly influenced by any considerations personal to themselves, it will be your duty to estimate and ascertain its true value; but if you are convinced that any of these witnesses have been knowingly actuated by bad motives and have not endeavored to speak the truth and the whole truth, and if you are further convinced that any one of them, or of all the witnesses sworn on the stand, has intentionally stated what he knew to be untrue, or what he did not believe to be true, then it will 397 be your duty to discard the whole of his evidence, according to the maxim"falsus in unumn falsus in omnibus." I know not that there is any other rule of law or suggestion which I can present to your minds, that would afford you any aid in your investigations.-It may be that your minds ar e already convinced; indeed it would be somewhat singular, if, after hearing the facts discussed every day for a fortnight, you should nothave quite matured your views of the evidence so as to enable you to dispose of the case without much delay. It is only in the event of a difference of opinion existing between you, that you will find the suggestions I have made as to your mode of procedure, of any value, they are not imperative upon you, but I have thought they might facilitate your action. If under the influence of feelings thus guarded, and with minds thus directed, you shall arrive at the conclusion that the defendants are not guilty, no influence from any source should prevent your giving a unanimous expression to your convictions. On the other hand; if you are reasonably convinced that the defendants are guilty as charged, 1 am persuaded that no promptings of your hearts, no feelings of mere mercy, will mislead you, but that you will fearlessly come up to the performance of your duty, und declare (though it may be with saddened hearts) that the defendants are guilty. And now the whole matter rests with you. Large interests are dependent on yourverdict-but you should not let this fact oppress your minds, nor should you allow your feelings to be wrought up to a high degree of excitement by a considerationof the consequences that may flow from your verdict; these should not disturb you if you honestly discharge your duty. You cannot hope to satisfy all minds: public opinion, often right, but sometimes wrong, may question the correctness of your judgment and arraign your motives; but you must not let the consequences which may be likely to flow from your verdict, to the public, to yourselves, or to the defendants, to cloud the clear exercise of your judgment or warp your minds. It will be better for you, that you should sustain, as best you can, the clamor of interested individuals, or of that very respectable personage, called Public Opinion, whether for acquittal or conviction, than that you should, by disregarding the obligations of your oath, render it certain that for this act, you will hereafter meet an accusing conscience at the bar of GOD. The defendants' counsel ask the court to charge the jury, 1st, That any acts performed, or statements made, by any one of the defendants, without the assistance, procurement or consent of others, are not evidence against any of the defendants, who were not partics to such acts and statements. As to this point, I charge you in the affirmative, with this explanation, that if you find a conspiracy did exist between the defendants, as alleged, and that such acts or declarations appear from the evidence to have been within the scope, and in furtherance of it, all who were parties to the combination would be bound by them. The persons so acting or speaking would be deemed the agent of the others. 2d proposition-That the acts of obstructing and stoning the cars are not evidence sufficient to show a conspiracy between the prisoners to burn the depot, mentioned in the indictment. As to this, I charge generally in the affirmative-with this further remark, that the evidence of such acts here admitted on the ground that it tended to raise a presumption of the character heretofore defined, when the question was raised. (Hexe the Judge referred to his former decision, and to a portion of his charge.) 3d proposition-That the question of conspiracy between the defendants is not material, unless it included the burning of the depot, mentioned in the indictment; and if the depot was destroyed in furtherance of any agreement or conspiracy, the agreement or conspiracy is merged in the higher offence of arson. The court decline to charge as here requested, and refer to their charge (page 10.) VERDICT. At a Session of the Circuit Court for the County of Wayne, held at the' Court House in the city of Detroit, on the 25th day of September, in the yearone thousand eight hundred and fifty-one. Present, Hon. WARNER WING, Circuit Judge. The People of the State of Michigan, Indicted for burning the Michiganvs. Central Railroad Depot, in the night Ammi Filley. et. al. time, and for aiding and abetting beJ fore the fact. The argument of Counsel in this cause being concluded, and the Court having charged the Jury, the Jury retire under the charge of officers duly sworn to: attend them, to consult of their verdict, and coming into Court, being enquired thereof, say that they find the Defendants Ammi Filley, Lyman Champlin, Willard Champlin, Erastus Champlin, Richard Price, Eben Price, Orlando D.' Williams, William CQrwin, Ebenezer Farnham, Andrew J. Freeland, Erastus Smith, Aaron Mount, Guilty in manner and form as they stand charged in the Indictment in this cause, and the Defendants Arba N. Moulton, Jacob Tyr — rell, Abner Grant, Ephraim A. Barrett, Grandison Filley, Lester Penfield, Miner T. Laycock, Benjamin F. Burnett, William S. Warner, Napoleon B. Lemn, Daniel Meyers, Eri Beebe, Russell Stone, William W. Lang, Henry Showers,. John Palmer, John Ackerson, John Ladue, Benjamin F. Gleason, Hiram Hay,. not guilty. SE NTENCE. At a session of the Circuit.Court for the County of Wayne, held at the Court House in the City of Detroit, on the twenty-sixth day of September, in the year' of Our Lord one thousand eight hundred and fifty one. Present, Hon. WARNER WING, Circuit Judge. The People of the State of Michigan, ) Indicted for burning the Michigan. vs. Central Railroad Depot in the night. Ammi Filley, et. al. [ time, and for aiding and assisting beJ fore the fact. The following defendants having been found guilty on the Indictment in this cause, to wit: Ammi Filley, Lyman Champlin, Willard Champlin, Erastus Champlin, Richard Price, Eben Price, Orlando D. Williams, William Corwin, Ebenezer Farnham, Andrew J. Freeland, Erastus Smith, Aaron Mount, and being now brought up to receive sentence. it is ordered and considered by the Court that all and every of said defendants above named, be and they are hereby sentenced to imprisonment in the State Prison of this State, at hard. labor, for the term of years respectively hereinafter mentioned, from and including this date, that is to say, the said Ammi Filley for the term of ten years;the said Lyman Champlin for the term of five years; the said Willard Champlin for the term of five years. the said Erastus Champlin for the term of fiveyears; the said Richard Price for the term of eight years; the said Eben Price for the term of eight years; the said Orlando D.Williams for the term of ten. years; the said William Corwin for the term of eight years; the said Ebenezer;arnham for the term of eight years; the said Andrew J. Freeland for the term of eight years; the said Erastus Smith for term of five years; the said Aaron Mount for the term of eight years. S99 STATE OF MICH1GAT, i, COUNTY OF WAYNE, COUNTY OF WAYNE, I' I, Jeremiah VanRensselaer, Clerk of the Circuit Court for the County of Wayne in said State, do hereby certify that the foregoing are true and correct copies of the Verdict and Sentence in the case of the People versus Abel F. Fitch, et. al. In witness whereof I have hereunto affixed my hand, and affixed the seal of said Court, at Detroit, the 3rd day of Octpber, A. D. 1851. J, VAN RENSSELAER. NOTE.-The following letters from Messrs. STUART and HOWARD will sufficien.tly account for the absence of the arguments of those gentlemen from this report: DETROIT, 30th Sept., 1851. GENTLEMEN:-In reply to your request that I should furnish for publication, my argument, addressed to the Jury, against the prisoners, convicted of burning the Depot of the Central Railroad Company in this city. I beg to say, that although the notes of the argument (reported by Mr. Gillett) were promptly handed to me for revision, I have not yet found time even to read his manuscript. Immediately on closing, I was compelled to meet the Grand Jury, whose sitting occupied a week, and owing to my constant engagement in the trial in the Circuit Court, I was obliged to meet them without preparation-every hour of my time was employed in drawing some sixty bills of indictment presented at this term of Court. I am now compelled to proceed at. once with the trials, and it is therefore quite impossible for me to accomplish the task of writing out, or even correcting the manuscript of my argument, in season to meet your wishes. Moreover, I beg to add, that so far as any useful purpose is sought, in the publication of the arguments of the counsel, nothing would be gained, by adding my remarks to the more able and conclusive arguments of my learned associates for the Prosecution, which occupy and cover the whole ground, and which your work will contain. In either of those speeches, the case of the Prosecution is enforced with greater ability, and more c early than it was in my power to present it. I cannot doubt, that an attentive perusal of those arguments will carry conviction to the mind of every reader, and fully justify the verdict of guilty, pronounced upon the misguided and unfortunate men on trial. I remain, gent., With respect, Your ob't serv't, DAVID STUART. DETROIE, Sept. 30th, 1851. GENT.:-In reply to your request, that I would furnish a copy of my argament in the late trial, for your forthcoming book, I would say, that Mr. Leland, who reported it phonographically, was too much occupied to write it out until within three or four days. Since I received the notes, poor health and pressing business have thus far prevented me from even reading it, much less correcting it for the Press. As I am obliged to leave town, I do not see as I can furnish the manuscript under a week or ten days. As it is desired that your report,hould go to press as soon as possible, Itrust that this will sufficiently account fer its not appearing with the others. If the argument in question should be deemed of sufficient importance, it mly hereafter appear in pamphlet form. Yours very truly, WM. A. HOWARD. Entered according to act of Congress, the 18th day of September, A. D. 1851,by EDWIN' A. WALES, ESQ. In the Office of the Clerk of the District Court for the District of Michigan. INDEX. NAMES OF WITNESSES. Testimony for People. PART FIRST. PA(XE. PAGE. Albro, H. L, 18 Avery, G. B. 20 Bates, G. C. 16 Brown, H. 38 Baldwin, L. 16, 160 Burdict, Asa Jr. 109 Barnes, E. M. 18 Binghanm H. H. 111 Brown, J. B. 18 Boulton, G. 123 Brooks, J. W. 27 Clark, D. B. 11, 152,173 Culver, B. 78 Grouse, J. B. 17 Caswell, H. 103 Cochren,J. B. 30, 32 Chadwick, S. 107, 108 Carter, L. 76 Chamberlain, R. H. 107 Clark, W. 77 Cicotte,J.J. 158 Coyle, Wm. 15 David, "U. 18 Dyer, J. 107 De Mill, P. E. 35 JDowdle, J. 110 Dixon, H. M. 71 Dobbs, W. 119 Dexter, J. H. 100 Dean, T. 121 Dexter, H. 0. 106 ]English, M. 121 Fiazier, A. C. 23 Fitzmorris, J. 172 Falkner, J. 154 Gillespie, John 73 Gibson, Amasa B. 173 Gardner, George F. 102 Hurd, John S. 17 Holmes, Alonzo 96 Holcomb, Henry S. 17 Henry, Abraham 97 Hewitt, James M. 69 Hairgrave,Elizabeth 10i Holden, Geo. A. 73, 172 Ilahan, James A. 122 Huntington, Nathaniel 78, 123 Holden, Delos J. 172 Ives, Edwin 25 Joy, James F. 16 Kingsbury, Otis 70 Knox, George 102 Knickerbocker, Geo. 95 Lothrop, G. V. P. 15, 157 Ledyard, Henry 160 Loud; Caleb 74 Lake, Heman 160 Ladue, Theodore 111 Mills, Stephen 18 Monroe, William 78 Mills, Daniel H. 18 Marsh, Amasa 103 Mayhew, Francis 25 Morrison, Patrick 109 McMichael, Geo. W. 35 Minckler, Isaac 110 Mitchell, James 76 Nichols, Henry R. 120 Oburn, Sarah 159 Phelps, Henry 8,124,159, 160 Pettis, Daniel C. 158 Price, John D. 122 Parker, Ferdinand F. 160 Purcell, Wm. T. 123 2 Testimony for People. PART FmRST. PAGE. PAGE, Rogers, Charles 116' Snyder, Lewis 17 Stanton, L. B. 99 Snyder, Lewisjr. 17 Smith, Isaac S. 103 Sherman, Hiram 51 Sutton, Joseph J. 108 Spaulding, Harmon L. 67,71,151,153 Spanlding, Alonzo 11,118 Stone, Wm. 0. 79 Sheeley, Alanson 157 Sackrider, Samuel 98 Tower, CharlesH. 16, 23 Town, Reuben 103 Turner, James W. 29 Titus, Jonas H. 159 Taylor, Amos B. 75, 96 Updike, Ralph 18 Updike, S. 18 tVan Arman, John 12,152, 174 VanBailen, Amos 102 Watkins, Geo. W. 18 Wescott, Wm.D. 79 Watkins, Lorenzo G. 18 Willing, Wm. J. 11( Wood, Solomon 26 Wescott, Morgan 118 Woliver, Jacob 40, 43 Waldron, Joseph 121 Wyman, Asa 58 White, Charles 153 Wells, Joshua W. 59 TESTIMONY FOR PRISONERS. PART SECOND. PAGE. PAGE; Allen, N. Jr. 6 Austin, L.H. 2 16 Atkinson, J. E. 98 Andrews, H. C. 216 Andrews, IT. 1. 119;, 184, 200 Arms, A. S. 218 Andrews, L. 163 Andrews, J. L, 219 Arnold, V. R. 172 Alexander, T. 240 Armstrong, J. L. 216 Allen, L. 255 Brooks, J. W. 7 Beeman, C... E. 155 Bingham, H. H. 244 Butterfield, J. H. 16( Brown, G. W. 35 Beeman, C. 171 Brown, I. R. 76 Beebe, W. 177 Beckwith, C. 82 Burchard, D. 180 Bell, A.S. 84 Brown, W. 1B. 180 Beebee, L. 88 Butterfield,. F. 215 Butterfield, C. M. 93 Butler, J. G. 21q Buck, W.!)4 Berry, J. 223 Becker, N. 96 Beebe, J. E. 227 Butterfield,L, B. 98 Bush, B.F. 228 Begale, A. 107 Bloomfield, G. 24( Blackburn, C. 127 Boynton, J. 249 Barbour, A. M. 137 Burr, C. 252 Baldwin, J. 141 Backus, I...259 Beeman, D. 149 Ball, J. B. 261 Bradley, Mr. 65 Clark, D. B. 267 Cozier, A. 61 (Cicotte, J. J, 101 Cozier, J. 62 Cross, J. 0. 5 Clark, H. 66 Cady, G. 11 Cowden, H. 77, 106 Carman, J. B. 27 Champ, W. 78 Cash, S. 37 Case, B. 79 Collier, V. P. 57 Chase, S. J. 83 Cohkendall (Kirkendall)J. 58,191., 202 Conklin, E. H, 84 3 TESTIMONY FOR PRISONERS. PART SECOND. PAGE. PAGE. Chapman.,S, 85 Chapman, F. 210 Collins, I. 86 Corydon, E. 212 Clark, A. 101 Chadwick, S. 212 Crowell, M. B. 116 Curtis, T. 214 Campbell, J. 142 Clark, J.V. 218 Coyle, W. H. 146 Conklin, G. 223 Cross, Martin 148 Case, A 223 Clark, J. A. 162 Chapman, L. 236 Crowell, J. F. 181 Cooper, E. 242 Coy, M. 185,192 Clements, S. 246 Cook, J. 187 Crane, A. D. 247 Chase, M. 190 Chipman, C. 249 Champlin, J. 192 Cummings, J. N. 254 Clark, 0. 205 Cooper, S.J. 256 Carr, H. J. 209 Coy, E. 267 Corydon, J. M. 210 David, U. 159 Downer, D. 208 Delemater, A. H. 9, 79,184 Downer, J. 209 Delemater, J. 29 Deyo, A.J. 218 Davis, J.H. 32 Davis,W,.A. 219 Dyer, W. 46 Duran, J. H. 220 Davis, A.W. 107 Davis, J. 221 Dunham, D. 110 Danforth, G. 221 Dwelly,W.. 117 Dair,J.B. 222 Dwelly, M. 170 De Puy, J. 243 Drew, H. 179 Dowlman, Dr. 248 Dorr, G. 187 Duran, C.M. 249 Oorr, C. 189 Doyle, Mr. 251 Dickinson,H. T. 188 Davidson,J. 260 Davis, D. 193 Dixon,F. 260 Dimmick, B. 180, 193 Dickey, Col. 275 Desnoyers, E. G. 201, 232 Eyres, N. B. 92 Easty, H. 260 Evans, J. M. 94 Easton, H. 261 Ewing, A. 239 Fenn, A. 19 Francisco, H. S. 116 Fitch, A. 67 Fisher, J. W. 117 Fitch, A. F. 72 Frisby, J. B. 140 Francisco, H. E. 72, 90 Francisco, H. 142 Ferin, O. H. 96 Fisk,H. 168 Farrand, F. 108 Fisher, D. 177 Foster, W. T. 198 Foot, H. K. 214 Fisk, John 213 Fitch, Mrs. Abel F. 281 Goodwin, Justus 73, 86 George, Elijah F. 178 Godfrey, Thomas 92 Goodyear, Hull 189 Gay, Erastus 95, 100 Green, W. W. 228 Gage, Horace 118 Gould, Burr 250 Glover, Charles 141 Guest, C. 251 Godfrey, David 143 Gillett,A. 254 Gage, Heman 169 Hurd, John S. 104, 120 Hawley, John 50, 203 Holcomb, Henry S. 115 Hildreth. L. A 60 Holmes, Alonzo 147 Holmes, Hart 61 Holden, Delos J. 25 Hicock, Calvin 84 Hudson, Wm. H. 3 Hill, James W. 89 Higby, Edward 8,120 Holcomb, Harry 91 High, Nathan 41 oag, E.F. 100 4 TESTIMONY FOR PRISONERS. PART SECOND. PAGE. PAGE. Hatch, Jared 126 Iol'comb, Agnes 188 Hancock, William 126 Hopkins, Terry 216 Higgins, P. C. 139, 236 Hatch, Wmm. F. 222 Harsha, William 142 Hosmer, John 234 lHatt; James 169 Harlow,A. 241 Hfilbert, H. 170 Harris, A. S. 255 Havens, William 179 Havens, Andrew 255 Hitchcock, Filo 187 Howe, U. Tracy 273 High, Hiram 187 Hollon, Joseph 276 Irving, James 170 Irish, J.D. 242 Irving, Isaac 171 Jones, Czar 13 Jones, L. H. 101 Johnson, Hiram R. 71 Johnston, Elijah 216 Jones, Joshua 99 Jewitt, J. 251 Kane, Andrew J. 6 Kellogg, Oliver, 186 Kevan, Peter C. 10 King, Dr. 239 Kellogg, Clarence H. 29 Kellogg, Lyman 242 Kellogg, Ira W. 59,135 Kellogg, John 243 Kyser, Christopher 178 Lake, Heman 202, 170 Lemn, Rouse 169 Lapham, Harlow 17, 155 Lord, J. C. 223 Luce, Alden S. 38 Ledyard, Henry 231, 232 Laycock, William B. 52 Larned, Sylvester 231 Laycock, Morgan S. 55 Litchfield, J. 242 Laycock, Henry T. 56 Lawrence, Edwin 244 Lathrop, Harry B. 124 Metcalf, Moses 15 Morse, Nathan 224 Mead, SamuelP. 17 McFarrand, Alex. 235 Metcalf, Alfred 23, 25, 146 Martin, Wm. S. 241 Metcalf, Henry 27 Madison, William 247 Merrick, Milton H. 148 Milford, Charles 248 Minnis, Robert 164 McLean,J. R. 249 Metcalf, Adeline 188 Millard, C. 255 Mowrey, S. M. 215 Millard, S.W. 260 Moulton, J. 220 Monroe, James 274 Moore, 0. W. 222 Nutting, Wm. E. 106 Noble,. 250 Norton, H.H. 211 Overocker, 105 Overacker, Michael 167 Overocker, Howard 162 Ockford, Cornelius 234 Peeler, James 10,30 Preston, Albert 166 Palmer, Charles 63 Purdy, Isaac 177 Palmer, Elizabeth 76 Palmer, David 178 Price, Joseph B. 109 Phelps, George A. 179 Powell, Jake 125 Pierce, Darius 204 Payne, firancis H. 140 Palmer, Russell 209 Powell, Lewis 161 Palmer, Chester 243 Powell, Ira 162 Preston, Wm. 247 Perry, Hiram 162 Pierce, Nathan 247 Powell, George 163 Preston, Jacob 249 Parker, Amos 164 Phelps, Mrs. Henry 261 Preston, Aaron 164 Phelps, Mrs. Noah 263 Quigley, Elijah 261 Quigley. Ellen 267 Raymond, Cyrus 93 Riggs, J. P. 101 Raymond, S. B. 93 Riggs,John 102 Rabbett, Levi 99 Riggs, Wn.W. 103 5 TESTIMONY FOR PRISONERS. PART SECOND. PAGE. PAGE. Riggs, Miles 103 Rowland, Pat 225 leynolds, William 104 Ramsdell, Lewis 244 Root, Amos 123 Robinson, A. J. 252, 256 Rowe, Henry W. 189 Spaulding, H. L, 238, 274 Smith, Edwin 182 Stowe, Samuel G. 22, 28 Sloat, John R. 189 Smith. E. F. 41 Smith, Morgan L. 217 Sud, Benjamin 63 Seaman, William 217 Sines, Sheldon 63 Service, David G. 219 Smith, Hiram 79 Stetson, Turner 224 Smead, D. W. 88 Savinac, Charles 229 Sweet, David S. 88 Stewart, Duncan 230, 236 Smith, Simon 90 Stewart, Daniel 235 Smith, H. A. 90 Shuter, Uriah 241 Sweet, A. B. 91 Slingerland, Peter 243 Sumner. George 109 Southerland, S. G. 244 Secord, James E. 129 Sprague, E. 244 Sylvan, William 141 Spencer, Elder 250 Sheppard, Orin 144 Smith,H. 254 Stevenson, Ransford 161 Titus, H. Jonas 207 Teft, Hiram 165 Tull, Mrs. 65, 129 Thatcher, Orin 168 Turner, Michael 80 Tichner, Daniel 170 Tuttle, C. W. 82 Taylor, Joseph H, 176 Tindall, Seymour 98 Toms, Rob't P. 183 Tull, Isaac D. 112, 113 Taylor, Ebenezer 194 Tyler, John 112 Tucker, Stephen 249 Tucker, David 161 Tracy, Wm. T. 250 Tuttle, Chester J. 165 Vosburgh, Oscar 186 Vandemark, D. 252 Wescott, Wm. D. 111 Webster, M. Howard 233 Woodward, Harvey 36 Wood, Charles 236 Whiting, Stephen 78, 97 Wolcott, Albert 240 Wheeler, J. B. 160 Williams, Asa 240 Wood, Moses 167 Wycoff, Wm. 246 White, George 180 Wines, M. 248 Warren, Isaac 184 Welman, M. 251 Winans, Jno. 0. 222 Watrass, Randall 277 Wines, Charles H. 224 Woodruff, Ienry C. 277 Young, J. 251 Zimmerman, Lorenzo 63 APPENDIX. INDICTMENT. STATE OF MICHIGANI WAYNE COUNTY, s The Wayne County Court as yet in and of the Term of April, A. 1). eighteen hundred and fifty-one, Wayne County, ss. The Grand Jurors of the People of the State of Michigan, enquiring in and for the body of the County of Wayne aforesaid, upon their oath present that George Washington Gay, William Van Sickle and Erastus Smith, late of said county, and Abel F. F'itch Ammi Filley, Arba N. Moulton, Jacob Tyriell, Grant, (whose christian name is unknown to the Jurors aforesaid,) Nathan Credit, Ephrain A. Barrett, Lyman Champlin, Willard Champlin, Erastus Champlin, Hiram Hay, Aaron Mount, Grandison Filley, Les. ter Pennfield, Richard Price, Eben Price, Minor T. Laycock, Orlando D. Williams, Ben. jamin F.Burnett, William (orwin, Ebenezer Farnham, Wiliiam Warner, Napoleon B. Lemm; Alonzo Holmes, Daniel Myers, Andrew J. Freeland, Harry Hocolm, Eri Beebe,' William Gunn, John W. Welch, Welcom Hill, Russel Stone, William W. Lang, Harvey Wakeman, Henry Showers, John Palmer, Seba Corwin, John Ackerson, Christy Blackburn, John A.Lockwood, John La Due, John Can, David Loucks, Benjamin F. Gleeson, Mills Barber, Jerome Gouid, and James R. Champlin, late of the County of Jackson, in said State, on the eighteenth day of November, in the year of our Lord eighteen hundred and fifty, at about the hour of eleven in the night time of the same day, and year last aforesaid, with force and arms at the City of Detroit, in said Wasne County, wilfully and maliciously did burn a certain Railroad Depot there situate, of great value, to wil: of the value of one hundred thousand dollars, then and there the property of and then and there used. occupied and possessed by the Michigan central Railroad Company, a body politic and corporate, incorporated under and by virtue of an act of the Legislature of said State, entitled an act to authorize the sale of the Central Railroad, and to incorporate the Michigan Central Railroad iompany, approved March twenty-eighth, in the year of our Lord eighteen hundred and forty-six, to the great damage of the said Michigan Central Railroad Company, against the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of Michigan. And the Jurors aforesaid, upon their oath aforesaid, do further present that George Washington Gay, late of the City of Detroit. in said County of Wayne, on the eighteenth day of November, in the year of our Lord eighteen hundred and fifty, at about the hour of eleven of the clock in the night time of the same day and year last aforesaid, with force and arms at the city and county last aforesaid. Wilfully and maliciously did burn a certain railroad depot of great value, to wit: of the value of one hundred thousand dol lars, there situate, then and there the property of and then and there used, occupied and possessed by the Michigan Central Railroad Company, a body politic and corporate, incorporated under and by virtue of an act of the Legislature of said State, entit ed an act to authorize the sale of the Central Railroad and t incorporate the Michigan Central Railroad Company, approved March twenty-eighth, in the year of our lord eighteen hulndred and forty-six,tp the great damage of the said Michigan Central Railroad Company, against the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of Michigan. And the Jurors aforesaid, upon their oath aforesaid, do further present that William Van Sickle and Erastus Smith, late of said Wayne county, and Abel F. t-itch, Ammi Filley, Arba N. Moulton, Jacob