Under the guidance however of a wise Providence, and with a due observance of legal formalities and rules, we may trust ourselves even with the lives of our fellow beings; for the law has committed them to our charge, and if we severally discharge our duty with honest hearts and with the use of all the light bestowed upon us, we shall stand approved to our consciences and to the Great and Just Judge whose ministers and

scrvants we are.

There is more than common occasion for recommending the exertion of your powers to throw off all preconceived opinions, and to bring your faculties to the examination of the evidence which will be submitted to you with entire self collectedness and impartiality. The extraordinary character of the crime has seized upon all imaginations, and pre-occupied many judgments. An unusual publicity has been given to such discoveries and disclosures as have from time to time been made.

The self execution of one who has been supposed the immediate agent of the cruel deed, has given additional force to opinions before perhaps strongly conceived.

Gentlemen! It is on such great occasions that superior wisdom is called for. In the ordinary course of crime, the machinery of justice will work steadily and regularly, with only its customary superintend ence. But when great and astonishing events occur, which cail for judicial investigation-when the public mind is agitated and disturbed, and the popular voice is audible, crying for vengeance, it is then that those who are clothed with the robes of magistracy, or who otherwise become functionaries of the law, are to divest themselves of human passions-to elevate themselves above the dense atmosphere which surrounds them, and imitate, in their humble measure, the wisdom and impartiality of the God of Justice!

Gentlemen! We cannot but regret the unusual publicity that has been given to the facts and circumstances which have transpired on this mournful subject. We shall see, I fear, that it will have had a tendency to impede the course of inquiry; but we trust you, who represent the country in the first stage of this solemn proceeding, will assume the attitude of impartial judges of the evidence; that you will diligently inquire and true presentment make; that you will be influenced neither by prejudice nor favour; that you will present things truly, as they come to your knowledge, according to the best of your ability and undorstanding.

It is not necessary upon the resent occasion to discuss the various classes of homicide, in order to distinguish that which is justifiable, as in self defence-that which is the effect of sudden provocation, which may be manslaughter,--and that which is the effect of malice aforethought, which is murder.

If it shall turn out in evidence that the house of the deceased was entered in the night time-that he was slaughtered in his bed; whether the object of the perpetrator was plunder, revenge, or the hope of reward from others who may have incited the deed, it is murder of the deepest die in regard to those who may have given the death wound, and any who may have been present, aiding and abetting the crime.

Such is the common law, and such is the provision of the statute of this Commonwealth, which enacts that if any person shall commit the crime of wilful murder, or shall be present aiding and abetting in the commission of such crime, or not being present shall have been accessary thereto before the fact, by counselling, hiring, or otherwise procuring the same to be done, every such offender who in the Supreme Judicial Court shall be duly convicted of either of the felonies and offenees aforesaid shall suffer the punishment of death.

It may be a subject of inquiry, what constitutes presence within the meaning of the second branch of this enactment, present aiding and abetting in the commission of such crime.'

And the construction of this phrase, which is taken from the common law, has been settled in ancient times by wise and learned sages of the law, and that construction adopted and sanctioned by successive judicial decisions down to the time of the adoption of our Constitution, so that the legislature which enacted this statute, without doubt referred to this construction when they framed it.

By this construction it is not required that the abettor shall be actually upon the spot when the murder is committed, or even in sight of the more immediate perpetrator or of the victim, to make him a principal.

If he be at a distance, co-operating in the act by watching to prevent relief, or to give an alarm, or to assist his confederate in escape, having knowledge of the purpose and object of the assassin,-this in the eye of the law is being present, aiding and abetting, so as to make him a prinsipal in the murder.

The distinction between a person thus situated and one who is denominated by the statute an accessory before the fact is, that the latter is not only in every sense absent from the scene of crime, but is not an immediate participator in it; he may not know the time when and the place where it is committed. He has previously, perhaps days or months before, hired, counselled or procured the deed to be done, but he has no immediate agency in the deed.

It

His crime is deemed by the law to be as great as his who strikes the blow; it is often in a moral point of view greater, as it may combine a greater number of desperate and diabolical motives, without the influence of which the crime would never have been committed. denotes the savage heart of the murderer, without his bold and daring hand. It puts in peril his own soul, and the souls of others, who, but for him might have gone free from the guilt of blood. Thus the law punishes the accessory before the fact in the same manner as it punishes the actual perpetrator-they are alike murderers.

There is at the common law a difference, and it is supposed to exist also under our statute, in regard to the form and the time of trial, between those who are called principals, and accessories before the fact, it being held that unless there be a conviction of a principal there can be no trial of the accessory. This difference, if it exist, is a relic of the unwise refinement of ancient times, there being no good reason why an accessory before the fact to a crime proved to have been commmitted, should not be tried and punished, although the principal may have escaped, by death or otherwise, the punishment which awaited his crime in this world.

But if occasion should arise to examine this point, and the common law should not be found to have been varied by our statute, the legislature will probably afford a remedy for future cases.

I have thus, gentlemen, I believe discharged all the duty of the Court, in this stage of its proceedings, in regard to the principal subject which will require your attention. If before the passing of the act under which we assemble, other offences cognizable in this Court shall have been committed, and not yet have been before a grand jury, you are authorized but not required by the statute to inquire into and present them. In regard to such cases as well as to any questions of law which may arise upon the subject on which I have given you the charge, you will have the advice and assistance of able and experiened officers of the government, whose duty it is to facilitate your investigations, and to reduce the result to such form of presentment as the nature of each case may require.

Gentlemen-Your duty and ours may be arduous and embarrassing— that it may be discharged with clear understandings and firm hearts let us look to the dispenser of all light and wisdom for his blessing upon our endeavours.

The customary prayer was then offered up by the Rev. Mr. CLEAVELAND, and the Court, having been thus opened, was addressed by Franklin DeXTER, Esq., of Boston, as one of the Counsel for the prisoners in the following motion:

DEXTER. Before the grand jury go out, I would respectfully move, that they be instructed as to what evidence they should receive. This was done in a celebrated case ;-that of Aaron Burr.

CHIEF JUSTICE. That case is remarkable for that, and another circumstance, not known to our law, that is, the challenge of grand jurors. With us the Court never instruct the grand jury upon the nature of the evidence to be heard before them. There will be a revision of their doings and it is unnecessary to go into the inquiry before hand.

SOLICITOR GENERAL. It is a sufficient answer to the suggestion of the gentleman, that in the case alluded to, Chief Justice Marshall said that "it was usual and the best course for the court to charge the jury generally, and to give their opinion on incidental points as they arose, when the grand jury themselves should apply to them for information.* DEXTER. It is true that the remark was made by Chief Justice Marshall, but he did send special instructions to the grand jury before the question arose. He did direct that "no affidavits nor papers, containing distinct substantive testimony against the accused should be sent to the grand jury."+

CHIEF JUSTICE. It would be a very inconvenient practice. The law reposes confidence in the officers of the government; they are not supposed to procure an indictment against a man upon improper evidence.

It is the opinion of the Court that they cannot go out of the usual course. They think it would be a good rule for the officers of the government to adopt, to offer no evidence to the grand jury, which they would not be willing to offer in Court.

DEXTER. Before the jury retire, I wish to inquire if the English practice does not prevail here, to indorse the names of the witnesses examined before the grand jury upon the indictment.

SOL. GENERAL. We have a better practice, and that is, to return the names of the witnesses examined before the grand jury, and that, makes a part of the record of the case.

The Court then adjourned to Thursday morning, at 9 o'clock. Thurs day morning the Court met and adjourned to 3 o'clock, P. M. Afternoon, met and adjourned to Friday morning, at 8 o'clock.

FRIDAY MORNING.

At the opening of the Court, the CHIEF JUSTICE remarked that there seemed to be an intention of publishing in the newspapers, the proceedings of the Court from day to day. Such publications must necessarily be imperfect, and perhaps mischievous. The Court is, therefore, decidedly of opinion that the proceedings ought not to be thus published, as they would give only imperfect information. What passes one day may be essentially altered or modified by the doings of a subsequent day. There may be no objection to publishing the state of the case as it advances; but there must be no, publication of the evidence before the trials are concluded.

The Grand Jury came into Court with the bills which they had found. The prisoners, John Francis Knapp, George Crowninshield, and Joseph Jenkins Knapp, Junior, were then placed at the bar and the following indictment was read by the Clerk.

[* Vide Burr's Trial, Vol. 1, p. 174.]
It Burr's Trial, Vol. 1, p. 199.]

INDICTMENT.

COMMONWEALTH OF MASSACHUSETTS.

Essex, sa- -At a special term of the Supreme Judicial Court, begun and holden at Salem, within and for the said county of Essex, by virtue of an act, entitled "An Act to provide a special term of the Supreme Judicial Court, within and for the County of Essex," on the third Tuesday of July, in the year of our Lord one thousand eight hundred and thirty.

The Jurors for the said Commonwealth upon their oath present, that John Francis Knapp, of Salem, in the county of Essex, mariner, not having the fear of GOD before his eyes but being moved and seduced by the instigation of the devil, on the sixth day of April, in the year of our Lord one thousand eight hundred and thirty, with force and arnis, at Salem aforesaid, in the County aforesaid, in and upon one Joseph White, in the peace of the said Commonwealth then and there being, feloniously, wilfully and of his malice aforethought, did make an assault; and that he the said John Francis Knapp, with a certain deadly weapon made of hard wood, and loaded in the head thereof with lead, called a bludgeon, of the value of twenty cents, which he the said John Francis Knapp in his right hand then and there had and held, the aforesaid Joseph White in and upon the left side of the forehead, extending over the left temple of him tho said Joseph White then and there feloniously, wilfully and of his malice aforethought did strike, penetrate, wound and fracture, giving to the said Joseph White, then and there, with the bludgeon aforesaid, in and upon the left side of the forehead, extending over the left temple of him the said Joseph White one mortal wound of the length of three inches, and of the width and depth of two inches; of which said mortal wound the aforesaid Joseph Whito then and there instantly died; and so the jurors aforesaid, upon their oath aforesaid, do say, that the said John Francis Knapp, him the said Joseph White in manner and by the moans aforesaid, feloniously, wilfully and of his malice aforethought, did kill and murder; against the peace of the Commonwealth aforesaid, and contrary to the form of the statute, in such case made and provided. And the jurors aforesaid, upon their oath aforesaid, do further present, that George Crowninshield, of Danvers, in the county aforesaid, machinist, and Joseph Jenkins Knapp junior, of Wenham, in the county aforesaid, mariner, before the felony and murder aforesaid, in the manner and by the means aforesaid, was done and committed, to wit, on the second day of April, in the year aforesaid, with force and arms at Salem aforesaid, in the County aoresaid, feloniously, wilfully and of their malice aforethought, did counsel, hire and procure the said John Francis Knapp, the felony and murder aforesaid, in manner and by the means aforesaid, to do and commit; against the peace of the Commonwealth aforesaid, and contrary to the form of the statute in such case made and provided.

And the jurors aforesaid upon their oath aforesaid do further present, that the said John Francis Knapp, not having the fear of Gon before his eyes, but being moved and seduced by the instigation of the devil, on the sixth day of April, in the year of our Lord one thousand eight hundred and thirty, with force and arms at Salem aforesaid, in the County aforesaid, in and upon one Joseph White, in the peace of the said Commonwealth, then and there being, feloniously, wilfully, and of his malice aforethought, did make an assault; and that he the said John Francis Knapp, with a certain deadly weapon called a dirk, of the value of fifty cents, which he the said John Francis Knapp in his right hand, then and there had and held, the aforesaid Joseph White, in and upon the left side of the body, and in and to the heart of him the said Joseph White, then and there feloniously, wilfully and of his malice aforethought, did strike, penetrate, stab and wound, giving to the said Joseph White then and there with the dirk aforesaid, in and upon the left side of the body and in and to the heart of him the said Joseph White, several mortal wounds and stabs half an inch in length, and a quarter of an inek in width, and six

inches in depth, of which said several mortal wounds and stabs he the said Joseph White then and there instantly died; against the peace of the Commonwealth aforesaid, and contrary to the form of the statute in such ease made and provided.

And the jurors aforesaid, upon their oath aforesaid, do further present, that before the felony and murder aforesaid, in manner and form last aforesaid, was done and committed, to wit, on the second day of April, in the year of our Lord aforesaid, the aforesaid Joseph Jenkins Knapp junior, and George Crowninshield, with force and arms, at Salem aforesaid, in the county aforesaid, feloniously, wilfully, and of their malice aforethought, did counsel, hire and procure the said John Francis Knapp the felony and murder aforesaid, in the manner and by the means last aforesaid, to do and commit :-against the peace of the Commonwealth aforesaid, and contrary to the form of the statute in such case made and provided.

And the jurors aforesaid, upon their oath aforesaid, do further present, that one Richard Crowninshield junior, late of Danvers, in the county aforesaid, machinist, and John Francis Knapp, of Salem aforesaid, in the county aforesaid, mariner, not having the fear of Gon before their eyes, but being moved and seduced by the instigation of the devil, on the sixth day of April, in the year aforesaid, with force and arms at Salem aforesaid, in the County aforesaid, in and upon one Joseph White, in the peace of the said Commonwealth, then and there being, feloniously, wilfully, and of their malice aforethought, did make an assault, and he the said Richard Crowninshield junior, with a certain deadly weapon, made of hard wood, and loaded with lead in the head thereof, called a bludgeon, of the value of twenty cents, which he, the said Richard Crowninshield junior in his right hand then and there had and held, in and upon the left side of the forehead, over the left temple of him the said Joseph White, then and there feloniously, wilfully and of his malice aforethought, did strike, penetrate, wound and fracture, giving to the said Joseph White, then and there, with the bludgeon aforesaid, in and upon the left side of the forehead, over the left temple, of him the said Joseph White, one mortal wound, of the length of three inches and of the width and depth of two inches; of which said mortal wound he the said Joseph White, then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said Richard Crowninshield junior, him the said Joseph White, then and there, in manner and form last aforesaid, feloniously, wilfully and of his malice aforethought, did kill and murder, against the peace of the Commonwealth aforesaid, and contrary to the form of the statute in such case made and provided.

And the jurors aforesaid, upon their oath aforesaid, do further present, that afterwards, to wit, on the fifteenth day of June, in the year aforesaid, the said Richard Crowninshield junior, with force and arms, at Salem aforesaid, in the county aforesaid, as a felon of himself, feloniously, wilfully and of his malice aforethought, did kill and murder himself, so that he the said Richard Crowninshield junior, cannot be further proceeded against or held to answer for the felony and murder last aforesaid.

And the jurors aforesaid, upon their oath aforesaid, do further present, that the said John Francis Knapp, at the time the said felony and murder in manner and form last aforesaid, was done and committed, feloniously, wilfully and of his malice aforethought, was then and there present, aiding and abetting the said Richard Crowninshield junior, the felony and murder of the said Joseph White in the manner and by the means last aforesaid, to do and commit. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said John Francis Knapp, the aforesaid Joseph White then and there in the manner and form last aforesaid, feloniously, wilfully and of his malice aforethought, did kill and murder, against the peace of the Commonwealth aforesaid and contrary to the form of the statute in such case made and provided.

And the jurors aforesaid, upon their oath aforesaid, do further present, that Joseph Jenkins Knapp junior aforesaid, and George Crowninshield aforesaid, before the felony and murder of the said Joseph White, in manner and form last aforesaid, was done and committed, to wit, on the second day of April in the year aforesaid, with force and arms, at Salem aforesaid, in the county aforesaid, feloniously, wilfully and of their malice aforethought, did counsel, hire and procure the said Richard Crowninshield junior, and the said John