find him present at the time of the murder, giving actual and efficient aid to the murderer, or he must be acquitted. No such evidence had been produced. The evidence of a conspiracy rested upon the testimony of Palmer and Leighton, and on that alone. Leighton's testimony was incredible from its very nature and he had besides declared when before questioned that he knew nothing of the matter; how he came to recollect just the point that was wanted, at just the time when it was found he could not do without it might be considered incredible. Palmer's testimony was wholly incredible and discredited. He had been convicted of an infamous crime, which if it had been done in this state would have excluded him from the stand, and the jury could not believe his story against the life of any one. There was no satisfactory proof of a conspiracy, and the question then is was the prisoner present, as the government say in Brown Street. The jury would remember, that proof of identity is always unsatisfactory, and in this case there was absolutely none, that could weigh a hair against the prisoner. The only proof of identity is the glazed cap; it has been shown that glazed caps are common; their dress was totally different; the man seen in Brown st. wore a camblet cloak; Frank wore a frockcoat; would he have encumbered himself with a cloak; or was he likely to have laid aside his cloak; there is not a particle of testimony that it was the prisoner who stood at the post; there is not the least show of evidence that it was he who was setting upon the Ropewalk steps; would he have set there; would he have exposed himself to recognition, would he have suffered Mr. Southwick to pass him 2 or 3 times and trust his security to a mere dropping of the head; he knew that Mr. Southwick must have known him and inquiry would certainly be made. It was about half or 20 minutes past nine when he was seen in Brown street, now we will show you he could not have been there unless you believe he could have been in two places at once; (here Mr. D. traced his course, as appeared by defendant's witnesses from 7 to 10 o'clock.) The testimony of his father and the domestic tends to prove that when last parted with, he went directly home. If the hypothesis of the government is true, the time of the murder must have been half past 10; this is incredible; there is no proof, and excluding the confession, there is not a single witness to prove it, unless it be that two men were seen in Brown street at half past 10; therefore the murder was committed at half past 10; and the murder being thus proved to have been committed at that time, the men seen in Brown street must have been the murderers; this is reasoning in a circle. Gentlemen, there is no evidence to prove that the murder was committed then, and there is no evidence that it was not committed until many hours after. The physi cian who was called in in the morning to view the body, says that he believed Capt. White to have been dead three or four

hours; his opinion is worth every thing; Mr. Savary says that he was up at 20 minutes before 4 o'clock; that he met a man near the house who seemed to avoid him; Mr. Walker who was up about the same time, met a man who turned round and went away from him; now what is the evidence to negative the supposition that one of these persons seen at that hour and under these circumstances was the man; which do you believe, that the murder was committed at half past 10 by the men seen in Brown street, with no proof but the fact of their being there, or that it was committed between 3 and 4, by the men seen about that hour, having the testimony of the physician in confirmation. Mr. Phippen Knapp testifies, and if he is wrong, why does not Mr. Waters, who was with him testify to the contrary, that he saw a light in Capt. White's chamber at a quarter past 10; now you are called to believe that the assassin entered the house and accomplished his work in 15 minutes after. But for the evidence of Mr. Coleman we should have done; for without this the Government have failed to prove the conspiracy.

(Mr. Dexter here entered into an argument to prove that the prisoner had assented to Joseph's confession, that the decision of the Court was hasty and should be again reversed; the testimony should be excluded. The Court said this was now a question for the Jurors, the Court would instruct them hereafter. Mr. Dexter then entered into an examination of Mr. Coleman's testimony, comparing his statements with those of Phippen Knapp, &c.) Is the confession true? I do not say it is false; the character of the witness was sacred, I will not derogate from its sanctity; but when a clergyman steps out of the sphere of his duty, he becomes a man amongst men; and should be treated as such and no otherwise; for what purpose did he go? in kindness to the family. He tells you so and you must believe it; yet Phippen says he went against the wishes of his family, were their feelings to be soothed by confession? the questions were not asked in kindness; they were asked in a spirit of deadly animosity; the witness had prejudged the prisoner and believed it wrong that he should escape. If he had gone in kindness he would never have asked the questions; surely he had some other motive than idle curiosity. If he wanted to save Jo, why not confine his questions and his visits to Jo's cell; how could he serve Phippen or the family by extorting questions which would condemn the prisoner. The questions were direct -and had an object; why did he ask about the club? was it to gratify an idle and tormenting curiosity? was it not rather to wring from him his heart's blood? The confession contains, if true, four facts each absolutely necessary and each absolutely unsupported by any other testimony. The time of the murder; the identity of the club; the name of the murderer; the fact of his being in the chamber alone: four facts extorted, as confession, from the prisoner to fill up gaps which neither the Govern

ment, private prosecutor, nor Committee of Vigilance could supply. The witness was not Frank's Pastor, he was a stranger to him; Mr. Flint was his Pastor; Mr. Flint had visited him; but he had made no confession.

[We have not room to follow Mr. Dexter further-his argument employed six hours in the delivery and was managed with uncommon dexterity-at the conclusion he exhibited a plan of the streets, &c., and he endeavored to convince the Jury that, admitting one of the persons seen in Brown street was Frank, he could not be connected, with the murder as an accessary present, aiding and abetting; as from the nature of his position he could neither act himself nor furnish the murderer with assistance. Gentlemen, we here rest our cause; these are the last words the prisoner will address to you; the whole evidence is before you, try him by the testimony, and as you truly try him, so may your God and his God judge you.

MR. WEBSTER, for the prosecution.—I am not accustomed to represent the government in criminal prosecutions. During my practice at the bar, which has not been very short, I have not more than twice taken part in the prosecution against any man arraigned upon criminal indictment; never, where life was at stake; where life was in jeopardy. It was, therefore, with some regret that I heard the learned counsel for the prisoner assert that I was brought here to hurry the jury beyond the evidence, and against the law. Gentlemen, I am sure that no man can hurry you against the evidence. I am satisfied that no man in this court will be permitted to hurry you against the law. My coming here has been considered worthy of notice; it would have been more agreeable to me to be elsewhere, I came here not in any official capacity, but as a citizen of this Commonwealth; as one deeply interested in the preservation of its peace; in the security of man's life, and in the security of his property, it was my duty to come here to unite my humble assistance, and give my poor modicum of ability to the discovery of the perpetrators of this most foul and horrible outrage. It has been said that there exists an excitement ! Gentlemen, there is cause for excitement; true, you should not be excited; you must act upon the testimory, and come to the consideration of this cause with minds and consciences free, unshackled and unprejudiced. But there is an excitement; there ought to be an excitement, which should rouse the faculties, and call into operation all possible assistance, even of the dullest apprehension. Who, that values life, peace, quietude and repose, can deny that he is troubled; that he is excited? Gentlemen, I appeal to you; you allheard of this murder, long before you were brought here to try the present issue-did you not fear? did you not feel this excitement? did you go to your beds and sleep as soundly as before? It is impossible; every thing connected with the transaction was of a nature to alarm you; it was a cool, desperate concerted murder; it was neither the offspring of passion, nor revenge; the murderer was seduced by no lion-like temptation; all was deliberation; all was skilful; and now, that all is known, it appears more atrocious than was even apprehended. The murderer was a cool, business-like man; a calculator; a

resolute and determined assassin! The spirit of crime was weighed against life; counted out and delivered by tale; grains of silver against ounces of blood. The assassination was accomplished; the crime assumed a new face; and this New-England murder becomes a new lesson and a new example. Let the painter beware how he exhibits the murderer with the grim visage of Moloch; let him not paint the blood shot eye, beaming with malice and red with revenge; let his features be smooth and unruffled; all calmness, coolness, and deliberation; not human nature in despair, or in paroxysms; no rushing of the blood to the face; no fiendish distortions-but all calm and unagitated smoothness. In all my professional career-in all my reading, I never met with an account of a murder, executed with so much skill; so much deliberation; so much coolness. At that blessed hour when, of all others, repose is soundest, the murderer goes to his work; in darkness and silence, he enters the house; he does not faulter; there is no trembling of the limbs; his feet sustain him; he passes through the rooms; treads lightly through the entries; ascends the stairs; arrives at the door; there is no hesitation; no pause; he opens it; his victim is asleep; his back is towards him; his deaf ear is uppermost; his temples bare; the moon-light plays upon his silver locks; one blow, and his task is accomplished! Now mark his resolution; his selfpossession; his deliberate coolness. He raises the aged arm; plunges the dagger to the heart! not once only, but many times; replaces the arm; replaces the bed-clothes; feels the pulse; is satisfied that his work is perfected, and retires from the chamber; he retraces his steps; no eye sees him; no ear heard him; he is master of his own secret, and he escapes in secret. That was a dreadful mistake; the guilty secret of murder never can be safe; there is no place in the universe; no corner; no cavern, where he can deposit it, and say it is safe;' the general administration of Providence forbids it; the elements of our nature conspire against secrecy; they declare emphatically, that the murderer shall not escape detection; he lives at war with himself; his conscience is a domiciled accuser, that cannot be ejected, and will not be silent. H s tormentor is inappeasable; his burthen intolerable; his bosom's secret over-masters him; subdues him; he succumbs; his guilty soul is relieved by confession, or suicide; and suicide is confession.

We cannot follow Mr. Webster further without increasing our Report to a size beyond the price at which we propose to issue it. His argument will, we understand, be reported at large. If it should be accurately reported, the aunals of bar eloquence will not contain its superior. In the course of the argument Mr. W. alluded to the charge of a prejudicial excitement, said, "That it should not be forgotten that there might also exist a counter excitement produced by a morbid interest in the fate of the bold, daring and resolute perpetrators. This unhallowed feeling had increased rather than diminished-this unaccountable principle of our nature had been lately used to great count, by one (Bulwer) whose genius had endowed vice with attraction-disguised moral deformity with beautiful conceptions-exposed human vice to inhuman admiration.

ac

He then went on to state the inferences drawn by the counsel for the government from the evidence in the case. He said

that suspicion fixed upon the Knapps; because they were the only persons interested in the death of Capt. White-that the conspiracy was proved by the testimony of Leighton and Palmer

that the presence to aid and abet the murder was proved by Southwick, Bray and Webster, and the confessions of Frank himself confirmed the whole, though they disclosed no one fact, which was not known to the government before.

He then continued, the indictment charges the prisoner with aiding and abetting in the murder of Capt. White-it charges him with being a principal in the second degree, and you will be instructed that that presumes that he was present, aiding and abetting-you must be satisfied that he is guilty in the manner in which he is charged, beyond all reasonable doubt. I can wish nothing better for you gentlemen than that you should go home with confidence in the right discharge of your duty. It has been truly said, that this will be a day long to be remembered. It will be long remembered, because it is a day full of important duty to be performed or neglected. It will follow you, gentlemen, it will follow us all, as duty accomplished, or as duty neglected-and if there is any thing, which is at all times and every where present, it is the consciousness that we have discharged ourselves well of every important trust. If we could take the wings of the morning and fly into the uttermost parts of the east, the sense of memory would be present there-if we seek to cover us with darkness, it will be there—at the close of life it will be with us-and at that solemn hour, the consciousness of duty discharged, or of duty neglected. will be there, to afflict us if disregarded, or to console us if under the will of the Almighty, it has been performed.

Judge Putnam then asked the prisoner, if he had any thing more to say, in addition to what had been said by his counsel. He replied "I have nothing more to say."

Judge Putnam then proceeded to charge the Jury.

He stated a few points of law applicable to the case, that any one of a conspiracy was bound by the acts of all the conspirators, cither in pursuance of the original plan, or to effect concealment.

That an accessary before the fact, was one who counselled, procured, or advised to the commission of the murder, but did not aid or abet in its commission.

That a principal in the second degree, was one who gave aid, abetment, or encouragement to the principal murderer, while he was doing the deed; and that this might be done, by being in any convenient place to prevent interruption, by giving signals, by encouraging the heart and strengthening the hand of the perpetrator or by aiding him in making an escape from the If a person was any where, so that he could give aid and encourage the murderer or assist him in his retreat, he was present at the fact, and was a principal in the crime. Even if

scene.