About half past ten, a person is seen sitting on the ropewalk steps, wrapped in a cloak. He drops his head when passed, to avoid being known. Shortly after, two persons are seen to meet in this street, without ceremony or salutation, and in a hurried manner to converse for a short time; then to separate, and run off with great speed. Now, on this same night, a gentlenran is slain,-murdered in his bed, his house being entered by stealth from without; and his house situated within 300 feet of this street. The windows of his chamber were in plain sight from this street;-a weapon of death is afterwards found in a place where these persons were seen to pass— in a retired place, around which they had been seen lingering. It is now known, that this murder was committed by a conspiracy of four persons, conspiring together for this purpose: No account is given who these suspected persens thus seen in Brown street and its neighbourhood were. Now, I ask, gentlemen, whether you or any man can doubt, that this murder was committed by the persons who were thus in and about Brown street? Can any person doubt that they were there for purposes connected with this murder? If not for this purpose, what were they there for? When there is a cause so near at hand, why wander into conjecture for an explanation? Common sense requires you to take the nearest adequate cause for a known effect. Who were these suspicious persons in Brown street? There was something extraordinary about them-something noticeable, and noticed at the time-something in their appearance that aroused suspicion. And a man is found the next morning murdered in the near vicinity.

Now, so long as no other account shall be given of those suspicious persons, so long the inference must remain irresistible, that they were the murderers. Let it be remembered, that it is already shown that this murder was the result of conspiracy, and of concert; let it be remembered, that the house, having been opened from within, was entered, by stealth, from without. Let it be remembered that Brown street, where these persons were repeatedly seen, under such suspicious circumstances, was a place from which every occupied room in Mr. White's house was clearly seen; let it be remembered, that the place, though thus very near to Mr. White's house, was a retired and lonely place; and let it be remembered that the instrument of death was afterwards found concealed, very near the same spot.

Must not every man come to the conclusion, that these persons, thus seen in Brown street, were the murderers? Every man's own judgment, I think, must satisfy him that this must be so. It is a plain deduction of common sense. It is a point, on which each one of you may reason like a Hale, or a Mansfield. The two occurrences explain each other. The murder shows why these persons were thus lurking, at that hour, in Brown street; and their lurking in Brown street, shows who committed the murder.

If, then, the persons in and about Brown street, were the plotters and executers of the murder of Capt. White, we know who they were, and you know that there is one of them.

This fearful concatenation of circumstances puts him to an account. He was a conspirator. He had entered into this plan of murder, The murder is committed, and he is known to have been within

three minutes walk of the place. He must account for himself. He has attempted this, and failed. Then, with all these general reasons to show he was actually in Brown street, and his failures in his ALIBI, let us see what is the direct proof of his being there. But first, let me ask, is it not very remarkable, that there is no attempt to show where Richard Crowninshield, jr. was on that night? We hear nothing of him. He was seen in none of his usual haunts, about the town. Yet, if he was the actual perpetrator of the murder, which nobody doubts, he was in the town, somewhere. Can you, therefore, entertain a doubt, that he was one of the persons seen in Brown street? And as to the prisoner, you will recollect, that since the testimony of the young men has failed to show where he was that evening, the last we hear or know of him, on the day preceding the murder, is, that at four o'clock P. M. he was at his brothers, in Wenham. He had left home, after dinner, in a manner doubtless designed to avoid observation, and had gone to Wenham, probably by way of Danvers. As we hear nothing of him, after four o'clock, P. M. for the remainder of the day and evening; as he was one of the conspirators; as Richard Crowninshield, jr. was another; as Richard Crowninshield, jr. was in town in the evening, and yet seen in no usual place of resort, the inference is very fair, that Richard Crowninshield, jr. and the prisoner were together, acting in execution of their conspiracy. Of the four conspirators, J. J. Knapp, jr. was at Wenham, and George Crowninshield has been accounted for; so that if the persons seen in Brown street, were the murderers, one of them must have been Richard Crowninshield, jr. and the other must have been the prisoner at the bar. Now, as to the proof of his identity with one of the persons seen in Brown street.

Mr. Mirick, a cautious witness, examined the person he saw, closely, in a light night, and says that he thinks the prisoner at the bar, is the same person; and that he should not hesitate at all, if he were seen in the same dress. His opinion is formed, partly from his own observation, and partly from the description of others. But this description turns out to be only in regard to the dress. It is said, that he is now more confident, than on the former trial. If he has varied in his testimony, make such allowance as you may think proper. I do not perceive any material variance. He thought him the same person, when he was first brought to court, and as he saw him get out of the chaise. This is one of the cases, in which a witness is permitted to give an opinion. This witness is as honest as yourselves-neither willing nor swift; but he says, he believes it was the man-"this is my opinion;" and this it is proper for him to give. If partly founded on what he has heard, then his opinion is not to be taken; but, if on what he saw, then you can have no better evidence. I lay no stress on similarity of dress. No man will ever be hanged by my voice on such evidence. But then it is proper to notice, that no inferences drawn from any dissimilarity of dress, can be given in the prisoner's favor; because, in fact, the person seen by Mirick was dressed like the prisoner.

The description of the person seen by Mirick answers to that of the prisoner at the bar. In regard to the supposed discrepancy of statements, before and now, there would be no end to such minute

inquiries. It would not be strange if witnesses should vary. I do not think much of slight shades of variation. If I believe the witness is honest, that is enough. If he has expressed himself more strongly now than then, this does not prove him false.

If

Peter E. Webster saw the prisoner at the bar, as he then thought, and still thinks, walking in Howard street at half past nine o'clock. He then thought it was Frank Knapp, and has not altered his opinion since. He knew him well; he had long known him. If he then thought it was he, this goes far to prove it. He observed him the more, as it was unusual to see gentlemen walk there at that hour. It was a retired, lonely street. Now, is there reasonable doubt that Mr. Webster did see him there that night? How can you have more proof than this? He judged by his walk, by his general appearance, by his deportment. We all judge in this manner. you believe he is right, it goes a great way in this case. this person it is said had a cloak on, and that he could not, therefore, be the same person that Mirick saw. If we were treating of men that had no occasion to disguise themselves or their conduct, there might be something in this argument. But as it is, there is little in it. It may be presumed, that they would change their dress. This would help their disguise. What is easier than to throw off a cloak, and again put it on? Perhaps he was less fearful of being known when alone, than when with the perpetrator.

But then

Mr. Southwick, swears all that a man can swear. He has the best means of judging that could be had at the time. He tells you that he left his father's house at half past ten o'clock, and as he passed to his own house in Brown street, he saw a man sitting on the steps of the ropewalk, &c. &c.---that he passed him three times, and each time he held down his head, so that he did not see his face. That the man had on a cloak, which was not wrapped around him, and a glazed cap. That he took the man to be Frank Knapp at the time; that when he went into his house, he told his wife that he thought it was Frank Knapp that he knew him well, having known him from a boy. And his wife swears that he did so tell her at the time. What could mislead this witness at the time? He was not then suspecting Frank Knapp of anything. He could not then be influenced by any prejudice. If you believe that the witness saw Frank Knapp in this position, at this time, it proves the case. Whether you believe it or not, depends upon the credit of the witness. He swears it. If true, it is solid evidence. Mrs. Southwick supports her husband. Are they true? Are they worthy of belief? If he deserves the epithets applied to him, then he ought not to be believed. In this fact, they cannot be mistaken,-they are right, or they are perjured. As to his not speaking to Frank Knapp, that depends upon their intimacy. But a very good reason is, Frank chose to disguise himself. This makes nothing against his credit. But it is said that he should not be believed. And why? Because, it is said, he himself now tells you that when he testified before the grand jury at Ipswich, he did not then say that he thought the person he saw in Brown street was Frank Knapp, but that "the person was about the size of Selman." The means of attacking him, therefore, come from himself. If he is a false man, why should he tell truths against himself?

they rely on his veracity to prove that he is a liar. Before you can come to this conclusion, you will consider, whether all the circumstances are now known, that should have a bearing on this point. Suppose that when he was before the grand jury he was asked by the attorney this question, was the person you saw in Brown street about the size of Selman?" and he answered, yes. This was all true. Suppose also that he expected to be inquired of further, and no further questions were put to him? Would it not be extremely hard to impute to him perjury for this? It is not uncommon for witnesses, to think that they have done all their duty, when they have answered the questions put to them? But suppose that we admit, that he did not then tell all he knew, this does not affect the fact at all; because he did tell, at the time, in the hearing of others, that the person he saw was Frank Knapp. There is not the slightest suggestion against the veracity or accuracy of Mrs. Southwick. Now, she swears positively, that her husband came into the house and told her that he had seen a person, on the ropewalk steps, and believed it was Frank Knapp.-

It is said, that Mr. Southwick is contradicted, also, by Mr. Shillaber. I do not so understand Mr. Shillaber's testimony. I think what they both testify is reconcilable, and consistent, My learned brother said on a similar occasion, that there is more probability in such cases, that the persons hearing should misunderstand, than that the person speaking, should contradict himself. I think the same remarks applicable here.

You have all witnessed the uncertainty of testimony, when witnesses are called to testify what other witnesses said. Several respectable counsellors have been called on, on this occasion, to give testimony of that sort. They have, every one of them, given different versions. They all took minutes at the time, and without doubt intend to state the truth. But still they differ. Mr. Shillaber's version is different from everything that Southwick has stated elsewhere. But little reliance is to be placed on slight variations in testimony, unless they are manifestly intentional. I think that Mr. Shillaber must be satisfied that he did not rightly understand Mr. Southwick. I confess I misunderstood Mr. Shillaber on the former trial, if I now rightly understand him. I therefore, did not then recall Mr. Southwick to the stand. Mr. Southwick, as I read it, understood Mr. Shillaber as asking him about a person coming out of Newbury street, and whether, for aught he knew, it might not be Richard Crowninshield, jr. He answered that he could not tell. He did not understand Mr. Shillaber, as questioning him, as to the person, whom he saw sitting on the steps of the ropewalk. Southwick, on this trial, having heard Mr. Shillaber, has been recalled to the stand, and states that Mr. Shillaber entirely misunderstood him. This is certainly most probable, because the controlling fact in the case is not controverted; that is, that Southwick did tell his wife, at the very moment he entered his house, that he had seen a person on the ropewalk steps, whom he believed to be Frank Knapp. Nothing can prove, with more certainty than this, that Southwick, at the time, thought the person whom he thus saw, to be the prisoner at the bar. Mr. Bray is an acknowledged accurate and intelligent witness.

do.

He was highly complimented by my brother, on the former trial, although he now charges him with varying his testimony. What could be his motive? You will be slow in imputing to him any design of this kind. I deny altogether, that there is any contradiction.There may be differences, but not contradiction. These arise from the difference in the questions put; the difference between beliering and knowing. On the first trial, he said he did not know the person, and now says the same. Then we did not do all we had a right to We did not ask him who he thought it was. Now, when so asked, he says he believes it was the prisoner at the bar. If he had then been asked this question, he would have given the same answer. That he has expressed himself stronger, I admit; but he has not contradicted himself. He is more confident now; and that is all. A man may not assert a thing, and still not have any doubt upon it. Cannot every man see this distinction to be consistent? I leave him in that attitude; that only is the difference. On questions of identity, opinion is evidence. We may ask the witness, either if he knew who the person seen was, or who he thinks he was. And he may well answer, as Capt. Bray has answered, that he does not know who it was, but that he thinks it was the prisoner.

We have offered to produce witnesses to prove, that as soon as Bray saw the prisoner, he pronounced him the same person. We are not at liberty to call them to corroborate our own witness. How then could this fact of prisoner's being in Brown street, be better proved? If ten witnesses had testified to it, it would be no better. Two men, who knew him well, took it to be Frank Knapp, and one of them so said, when there was nothing to mislead them. Two others, that examined him closely, now swear to their opinion, that he is the man.

Miss Jaqueth, saw three persons pass by the ropewalk, several evenings before the murder. She saw one of them pointing towards Mr. White's house. She noticed that another had something which appeared to be like an instrument of music; that he put it behind him, and attempted to conceal it. Who were these persons? This was but a few steps from the place where this apparent instrument of music (of music such as Richard Crowninshield, jr. spoke of to Palmer) was afterwards found. These facts prove this a point of rendezvous for these parties. They show Brown street to have been the place for consultation, and observation; and to this purpose it was well suited.

Mr. Burns's testimony is also important. What was the defendant's object, in his private conversation with Burns? He knew that Burns was out that night; that he lived near Brown street, and that he had probably seen him; and he wished him to say nothing. He said to Burns, "if you saw any of your friends out that night, say nothing about it; my brother Jo. and I are your friends." This is plain proof, that he wished to say to him, if you saw me in Brown street that night, say nothing about it.

But it is said that Burns ought not to be believed, because he mistook the color of the dagger, and because he has varied in his description of it. These are slight circumstances, if his general To my mind they are of no importance. It is

character be good.