"Gentlemen of the Jury, I have no need to caution you against partic.i.p.ating in the popular indignation at this crime, or not to fear the consequences of a faithful discharge of your whole duty. Your oath requires you to decide the question of the guilt or innocence of the prisoners according to law and evidence.

"The indictment charges them with Conspiracy. But, gentlemen, I will not detain you farther, except to cite authorities respecting the nature of this crime, the laws and penalties pertaining thereunto, and also to remark on the confidence to be placed in the confession of a dying man, which will soon be submitted to you."

He then proceeded to read from Roscoe on Criminal evidence, Chitty's Criminal Law, Archbold, etc., etc. After which, he concluded by saying, "This charge we expect to prove by the confession of Hugh Fuller on his death bed, where we naturally expect the utmost sincerity, and where there could be no motive for self-accusation, and a confession of that which must forever tarnish the fair fame of the confessor,--no motive falsely to criminate his fellow men. His testimony is ent.i.tled to the highest consideration, supported as it will be by an array of circ.u.mstantial evidence, amounting almost to a moral demonstration."

He then called George Wilson, Justice of the peace, who after being sworn read the Affidavit, as he took it from the lips of the dying man.

AFFIDAVIT.

"COMMONWEALTH OF Ma.s.sACHUSETTS.

"County of ----ss. Hugh Fuller of Crawford, in said county, yeoman, personally before me, and lying upon his death-bed, on oath declared that he affixed his name as witness to the last will and testament of the late Joseph Lee of said town and county, then lying on his death-bed, on the twenty-third of October, one thousand eight hundred and thirty-seven. And also at the same time and place affixed his signature to a deed by the said Joseph Lee, conveying property from him to widow Churchill.

"And the deponent farther declares, that the other witnesses of these doc.u.ments were Oscar Colby, and Edward Stone.

"The deponent also solemnly declares that the papers were then delivered by said Joseph Lee to said Oscar Colby with instructions that the first doc.u.ment should be retained by him, Oscar Colby, until after the testator's decease, and that the second should be immediately conveyed by said Colby to the aforesaid Widow Churchill.

"The deponent still farther declares that the said Oscar Colby enjoined upon him and Edward Stone, now deceased, profound secrecy in respect to the first of these transactions; and that immediately upon the death of the late Joseph Lee, the said Colby came to him renewing the injunction with a proffer of money, as reward for so doing; and that both he and Joseph Lee, son of the deceased Joseph Lee, subsequently came to him to instruct him how to appear, and what to say, if cited before the Probate Court; and at the same time paid him certain sums of money in consideration of his maintaining such secrecy.

"And the deponent also declares that his abetting of this crime has ever since lain heavily upon his conscience, and has at times harrowed his soul with the most dreadful remorse; and that he cannot die in peace until he has made a frank, and full confession of this sin, and implored forgiveness of G.o.d, and his fellow men; more particularly of those whom he has thus injured.

"All this, the deponent declares to be true in the presence of that G.o.d before whom he expects in a few moments to appear; and the same was subscribed and sworn to on this fourth day of September, in the year of our Lord one thousand eight hundred and forty-four.

HUGH FULLER.

"Before me, George Wilson, Justice of the peace.

_In the presence of_ Frank Lenox, } Martha Fuller, } Witnesses.

Phebe Andrews, } Benjamin Hardy, }

_Crawford, September 4th, 1844._"

In corroboration of this testimony, the following witnesses were called and sworn:

Frank Lenox, Allen Mansfield, Lucy Lee Mansfield, Susan Burns, Jacob Strong, who bore testimony similar to that given by them before the Probate Court, and showing the oft declared intention of the late Joseph Lee to revoke his first will, and to make a second.

They also testified that up to the time of the alleged crime, the prisoners were comparative strangers, and that from that period, they had been leagued together in the closest alliance; first in the house of the late Joseph Lee immediately after his funeral, then in the execution of the will, and subsequently in a voyage to Europe, from which they lately returned together after an absence of some years; and finally that they were together up to the time of their arrest.

To reveal the nature of their intercourse when together, Jacob Strong, steward of the late Joseph Lee, testified, that on the evening after the funeral of his master, his son Joseph, and Lawyer Colby were together in the back parlor of his master's residence, where they called for wines, brandy and cigars, and where they spent most of the night in drunkenness.

And he farther testified that at sundry times during the succeeding month, he had been often awaked at late hours of the night, by their midnight carousals; and alarmed by their abuse of each other. And that he had often interposed to separate and quiet them.

Here the prosecution closed the presentation of the case in behalf of the government, reserving the right to introduce reb.u.t.ting testimony.

It being past twelve o'clock, the court adjourned till two P. M.

_Two o'clock, P. M. Tuesday afternoon._ The Court met pursuant to adjournment.

The defence opened. Mr. Curtiss arose. "Hay it please your Honor, and you, Gentlemen of the Jury, I arise under no small embarra.s.sment to plead the cause of my clients in this important trial,--an embarra.s.sment which arises from the overwhelming tide of public indignation, which in its mighty current, and irresistible force threatens to carry away every barrier of public justice, and public safety.

"Upon the alleged confession of Hugh Fuller this tide deluged the surrounding country, as when the dam of a great river is carried away, and the pent up waters are let loose, bearing down all before them.

"We, Witnesses, Counsellors, and Jurors are in no small danger of being carried away as float-wood whither the mighty torrent shall bear us.

"I cannot resist the conviction that the District Attorney, by his quick sympathies, has so far partic.i.p.ated in this popular feeling, that he has not in this case sustained his deservedly high reputation for equity, and impartiality. My great esteem for him as an advocate led me to expect that he would devote to this exciting trial, his characteristic calmness, and discrimination, that he would carefully weigh the evidence, and avoid all appeals to pa.s.sion or prejudice. Judge then of my surprise that in the very beginning of his speech, he should appeal to your sympathy in behalf of the daughter of the late Joseph Lee.

"Gentlemen of the Jury, you are here for the exercise, not of sympathy, but of justice. And my astonishment was increased by his attempt to awaken your prejudices against my clients, by reference to any peculiarities in their personal appearance. What honest citizen; nay, what one of you could be suddenly dragged from your bed at night, and committed to prison on such a charge; be brought from your cell handcuffed and strongly guarded, and here locked up in the felon's box in the presence of so large and respectable an a.s.sembly of your fellow citizens without some emotion blanching your countenance, or flushing it with indignation.

"But my astonishment reached its highest pitch, when having waited hour after hour in painful expectation of that circ.u.mstantial testimony, which was to amount to "a moral demonstration" of my clients' guilt, and waiving in apprehension of it my right to cross examine his witnesses, I heard him acknowledge to the court that the evidence for the prosecution was in, and the case was submitted to the defence.

"His citations from legal authors, and his exposition of the laws pertaining to the crime for which my clients are arraigned meet my most cordial approbation, and supersede the necessity of any additional comments on the part of the defence. Of the three crimes charged in these indictments, the two latter are subordinate to, and dependent on the first. If there was no conspiracy, there surely could have been no wilful perjury, no suborning of witnesses in pursuance of that conspiracy.

"Setting aside the confession, what proof has been adduced to support the charge of conspiracy? None that would justify any honest citizen in cherishing a suspicion of his neighbor; none that would not blast the fairest character as with the breath of calumny. Your verdict, if you find my clients guilty, must depend almost entirely upon the credibility of a deceased witness, upon the affidavit of Hugh Fuller.

"The authorities already submitted to you by my legal friend, teach you that the testimony of a dying man should be received, if at all, with great caution. At best it is _only hearsay evidence_, and this is almost the only form of that species of testimony which is admissible at the bar. Before you attach to it any importance, you are bound to know that the witness at the date of the affidavit was in a sound mind, free from intellectual aberrations, and from bias of judgment.

"Has the prosecution relieved your minds from all doubt on these points?

Nay, gentlemen. It has submitted no substantial proof of even the sanity of that witness. I am now prepared to prove by testimony clear and abundant that this affidavit contains nothing more than the hallucination of an insane man. This being established, I shall submit the case, after the argument of my a.s.sociate, for your decision."

During the speech of Mr. Curtiss, the vast audience hung in breathless silence upon his lips; and when he resumed his seat, it was very evident that the tide of public feeling had begun to turn.

The prisoners, inspired with hope, rose from their seats, and stood leaning over the pickets of their boxes. Such was the eagerness to catch every word that the sheriff was obliged several times to rap with his pole and call "_order!_ ORDER!!"

The witnesses for the defence were next called, and sworn, and examined.

First, Frank Lenox.

_Mr. Curtiss._ "What is your profession?"

"I am a physician."

"How long have you been in practice?"

"About thirteen years."

"Was Hugh Fuller your patient?"

"He was."

"What was his disease?"

"Typhoid fever."

"Have you been familiar with that fever in your practice?"

"I have had many cases every year."