tion of the dagger in the prisoner's hand, or of his arm, to inflict the wound! Let any man, even standing firmly, place himself in that position, opposite another, and try with a weapon of that length, and held in that manner, to inflict such a wound, and he will immediately perceive it is impossible. But when it is further considered that both were falling, and of course, that the necessary physical force and firmness of position were wanting, it is, to say the least, incredible that the prisoner should not only have inflicted such a wound at that moment; but also have withdrawn the instrument again (the deceased being on his back on the ground), regrasped it by the blade, and recommenced his blows about the head of the deceased, thus twice changing the position of the dagger in his hand, and the position and direction of his right arm; and all this unperceived by any of the surrounding witnesses.

tion of those witnesses, by which I wished to fix their minds on the situation of the parties, and the impossibility that the weapon could have been driven with that velocity and force; and, perhaps, I was rightly stopped; for I was told that it was your province to draw these conclusions. I ask you then to draw them now, and I entreat you to consider whether it can be supposed, or rather taken for granted, against evident presumption, against mercy, against the character and reputation of the prisoner, that he exerted a force, to which a very competent judge thinks, and I trust you will think, the muscular strength of any man would be under those circumstances, unequal.

I therefore say, and insist, gentlemen of the jury, that whichever set of witnesses you give credit to, you must arrive to the conclusion that my client must be acquitted. If his hands alone were employed about the head of the deceased, when he was on the ground, the dagger was then out of the prisoner's hands, and the natural conclusion is, that the wound was received by falling on it, or with it, on the ground. If you can believe it was still in his hands, and held thus by the blade through all the progress of the affair, Mr. Goodwin cannot be guilty of the crime charged in this indictment, for the death cannot have been occasioned by a stab with that dagger. Extraordinary and absurd as this certainly appears, yet it is a necessary conclusion, that the whole of the allegations about the mortal wound must be untrue, if this part of the testimony be taken as the truth.

But in this very singular case, more abundant in contradictions amongst honest men than I ever knew before, where witnesses speaking of the same thing differ so entirely one from the other, on what are you to rest? I might rely for my client, on the uncertainty of proof on behalf of the prosecution. I might tell you that where you were in doubt, you were bound to acquit.

I have said that under those circumstances, the necessary force and firmness of position for the voluntary inflicting of such a wound, were wanting. Evidence has been produced that muscular strength would be adequate to the giving of that wound-but it is idle to talk about the sufficiency of muscular strength in the abstract. It can only be applicable to this or any particular case, by taking into consideration the position of the parties and the situation of the part, the strength of which is to be exerted. In this case (if the wound be supposed to have been given by the dagger in the prisoner's hand), no momentum could have been given to the weapon, by imparting to it a velocity, before the point was made to touch the body. The shortness of the human arm, the length of the blade, and the position in which the dagger must have been held and driven, to inflict, by a person standing in front of his adversary, a wound beginning near the back, between the ninth and tenth ribs, and going upwards and forwards through the heart to the breastbone, There is, however, a surer and a safer guide show that if it could have been given at all, the for you, than the tongue of any witness. The point must have been applied to the back of the senses of men may deceive them, their memories deceased without any antecedently acquired betray them, their feelings, passions, and appremomentum or velocity, and forced through a hensions, may mislead them. But if there be part of one of the ribs, and into the body to the any unerring fact, not to be altered by misaplength of ten inches, by mere muscular exer- prehension or mistake, adopt that for your *ion, commencing from a state of rest. The guide, and it will be a clue to lead you through very skilful physician who examined the wound the labyrinth. That fact exists, and though one and dissected the body, influenced by these con-rib may be mistaken for another, the wound siderations, testified, that under all the circumstances of the case, he thought the muscular strength of a man would be inadequate to the giving of such a wound, and that it must have been caused by the fall, which alone could impart the force and velocity necessary for overcoming the difficulties. Other physicians, having no respect to the circumstances of the case, said they thought the strength of a man would be adequate to drive the dagger in so far, and to illustrate their opinion, you must have observed them drawing back their arms, and then thrusting the dagger forward, with the utmost velocity and force. I was stopped in the cross-examina

itself, its situation, depth, direction, and nature, are certain. On them I have endeavored to fix your attention, and if you keep them steadily in view, they will give you as much certainty as the nature of this case can possibly admit.

That the cane was used in the conflict, there can be no doubt; the weight of the evidence, however, is, that the blow after which Mr. Stoughton fell was given with the fist. Mr. Clark clearly says so; Mr. McWilliams speaks as decidedly to the same fact, and says that when he was running up, before the knocking down, the battle was with their hands. Mr. Baker also says the same thing. There is therefore

by Mr. Stoughton on the ground, for in another part of his testimony, he said that when Mr. Stoughton fell, owing to the crowd, he could not see him, and he did not go off his stoop to help him up; he therefore could not have seen the dagger at that time. No doubt he saw the dagger on the ground, but it was at the time that Mr. Stoughton fainted, and was again near falling; and now to his mind's eye it appears as if he saw it when the deceased had fallen. He is only wrong in the appropriation of a small portion of time in a very rapid transaction; and if so, he was right in all the rest.

much reason to doubt whether the prisoner had | But he could not have seen the dagger lying the dagger in his hand, even when Mr. Stoughton fell. But the allegation that Mr. Stoughton was struck with the handle of the dagger while lying on the ground is much more incredible, according to the evidence. It is only stated by Weir, Haycock, and McGowan. Mr. Ball, though he speaks of blows with the cane, does not confirm them. He only says that the prisoner struck Mr. Stoughton while falling, two or three blows with the cane, but not after he fell. Mr. Clark saw no such blows; Mr. Phelps did not see them; Mr. McWiliams says the prisoner was striking, or going to strike the deceased with his fists, and that be had no cane in his hand; Mr. Baker denies that the prisoner had the cane in his hand; so do Mr. Wilder and Mr. Cambreleng.

It appears from the testimony of some witnesses that the prisoner had the dagger in his hand after the affray; but none of them saw it there till after Mr. Stoughton fainted. Mr. Clark, who goes farther in this respect than any other, only said he saw it in Mr. Goodwin's hand while the deceased was fainting, and he yesterday said it was after Mr. Stoughton had fainted. As to a small portion of time or mi

for he is doubtless inaccurate in his account of the scuffle, and of Mr. Stoughton's striking after he was raised up. Surely then no witness who is incorrect in prominent transactions, can be implicitly relied on for small portions of time, of which he now speaks only from distant recollections. Neither Weir, Baker, Ball nor McWilliams saw the dagger in Mr. Goodwin's hand after the affray and before Mr. Stoughton had fainted. McWilliams was peculiarly wel situated for seeing every thing, and is perhaps the most consistent and correct of all the witnesses in his whole story. McGowan cannot say whether the prisoner had the dagger in his hand when separated from Mr. Stoughton. Mr. Wilder denies it, and so does Mr. Cambreleng, The only explanation which can reconcile this testimony is, that the dagger was picked up and given to the prisoner; and Mr. Cambreleng says that his impression is that such was the fact. My client, a stranger, and knowing nobody who was there, either by name or person, except Mr. Cambreleng, and not having been himself observant of incidents, at the time apparently immaterial, cannot designate by whom this was done, nor produce him as a witness; but the probability of the fact, its tendency to reconcile apparently contradictory evidence, and the impression of Mr. Cambreleng, must be enough to induce a jury to believe that it took place.

Further Mr. Wilder says his impression is, that he saw the dagger on the cartway immediately after Mr. Stoughton was raised, and on the spot where they were, and that he did not see it in Mr. Goodwin's hand. Mr. Weed says he saw the two pieces of the cane on the cart-nute fact, his accuracy may also be questioned, way; he however adds, that this was while Mr. Stoughton was down. On this latter point I doubt his accuracy as to the exact time; as I am also compelled to think him mistaken about the number of blows which he says were struck before Mr. Stoughton fell. Indeed the whole affair took place so rapidly that short spaces of time might easily be confounded, and the facts which are certain, show he must have erred in point of time. The dagger, to have been lying on the ground by the side of Mr. Stoughton while he was down, must have been drawn ten inches out of the wound and placed beside him. Mr. Stoughton's fall was on his back, and rather on the left, which was the wounded side, and he lay in that position: Mr. Goodwin's hands are said to have been active from the moment of the fall about the face of the deceased. The wound I have already shown, and I think it is certain, could not have been given in the conflict before the fall, but must have been received during or by the fall. How then could the hand of Mr. Goodwin have drawn the dagger out from the back of a man lying on his back, and on the wounded part, for such a length as ten inches, and not be observed, and his hands stated to have been constantly active about his adversary's face? Is it not more likely that Mr. Weed is mistaken as to a few seconds than that impossibilities have happened? He certainly is mistaken as to the number of blows which passed before Mr. Stoughton's fall. Although looking on from the very first, he saw but one blow given by Mr. Stoughton, and one by Mr. Goodwin, which knocked the former down. Every other witness present at that part of the transaction (for Mr. Clark was not) agrees that there were several blows given by each of the parties before Mr. Stoughton fell. In this respect as well as about the dagger, if Mr. Weed had not been disturbed and agitated he would not have been mistaken.

I think the observations I have submitted to you, are sufficient to make you reject that statement, upon which there is so much contradictory testimony, that the prisoner had the dagger in his hand, and was using it about the head of the deceased, while he was lying on the ground. If that be not the fact, and that my client had before that parted with the dagger, let us see whether an explanation of the fatal accident does not naturally present itself. The prisoner was himself in danger of falling, and if he had retained the dagger in the post

tion in which he was holding it, he himself | ferences for or against the prisoner, justice and would have been the person to have fallen on mercy should go hand in hand. it and to have received the wound. From a vague apprehension of this danger, or in the struggle to save himself from losing his balance, he parted with the weapon. While it was falling to the ground, the deceased was falling also: the point may have entangled in his outer coat, and the weight of the handle may have brought it to the position capable of giving to the wound the direction which has been sworn to, or Mr. Stoughton may have fallen on the dagger, as the handle reached and rested on the ground, before it could acquire an horizontal position; and afterwards, when Mr. Stoughton was raised up, the action and motion in rising, or the weight and shifting of his clothing, or accidental rubbing against some of those that were in contact with him, may have contributed, with the weight and bulk of the handle, and the slender and tapered form of the blade, to make it fall out, unobserved and unnoticed in the hurry of the transaction.

Our adversaries have no right to object against this explanation of the melancholy catastrophe, that it is unproved. The burthen of proof, as I have already stated, still rests on the prosecutors; and it is incumbent on them to show a state of facts, fixing with reasonable certainty, the infliction of the wound on a voluntary act of the prisoner; and irreconcilable with any suppositions of misadventure. It may be said that the casualties which I contend for are not likely to occur, and are in themselves extraordinary. To that I answer, that stronger objections lie against the supposition of a voluntary stabbing by the prisoner, for it is in itself nearly, if not entirely impossible. The range of chances is almost incalculable and infinite, and every one the least conversant with the accidents of life, knows that most extraordinary results in appearance, frequently happen fortuitously. There is scarcely a man who has not often seen things happen by accident, which he could not accomplish by any effort of dexterity or skill. And I do not hesitate to say, that an impartial reflector on this subject, will be much more inclined to believe that unexplained and perhaps unnoticed casualties, concurred to cause the infliction of the fatal wound, than that it was the result of a voluntary act of the prisoner, which could not but have engaged the attention of all the spectators, and which was observed by none of them.

It is true, that from the contradiction of the witnesses, nothing except the wound itself and its direction can be said to be proved with certainty; and the unfortunate man who stands accused before you, knows nothing of the fatal misfortune, nor could he without knowledge of what was to be proved, either instruct or guide us. I am therefore obliged to reason in the alternative, and to show that from no statement of the facts, can an impartial jury derive sufficient evidence of his guilt: and in making in

The conduct of the prisoner after the fact, shows he was not conscious of the fatality, and that it was entirely a misfortune. The surprise he manifested, when the unsheathed dagger was given to him: his deliberately remaining on the ground until Mr. Stoughton was carried into the neighboring store, and his only then retiring by the advice of Mr. Cambreleng: the open manner in which he kept the dagger in his hand, without disguise, after it had been given to him: all these things show that he had not knowingly given a wound. Had he been conscious of killing the deceased with that same dagger, would he not have thrown or given it away? Would he not have disappeared among the crowd, and flung it into some area as he passed? He did not believe that Stoughton was a dying man; but when he saw the situation in which Stoughton was carried into the store, and heard the expression of Mr. Phelps, it first occurred to his mind that some unfortunate accident had happened which he was unable to explain; and then for the first time he asks whether it would not be more prudent to pass over to Jersey for a time, than to remain exposed to the threatening hostility of the crowd.

He arrives safely in Jersey; would not conscious guilt, if he were guilty,-for conscience will make cowards of us all,-have counselled flight? On the contrary, he walks with company to the tavern, where he remains two or three hours, at liberty to dispose of himself as he may think best. He seeks no opportunity to escape; and when the officers of justice at length come over and intimate to him their purpose, though he was apprised they had no legal authority to touch him, and full well knew the spirit and angry jealousy of that State, against what they consider as the usurpations and encroachments of New York, though he had every reason to believe that an army would have turned out to oppose any person who would dare to take a prisoner from among them, and convey him back to this city, in violation of their State authority; yet he at once expressed his determination and readiness to accompany them. And notwithstanding the courage and address of Colonel Warner, if my client had raised that hue and cry, he would have excited a host that would have made a bloody catastrophe to the expedition of Colonel Warner and his officers.

But no: he resisted the opinion intimated by a man of the first legal information. He told Judge Butler, I know my rights, but I will make no resistance. I will not withdraw myself from the laws, nor from the jurisdiction of New York. In all this transaction, do you not find a steady calmness, and an absence of all self-reproach, which must powerfully weigh on his side in the scales of justice?

Gentlemen of the jury,—I am the last to address you on behalf of my client, and I must

now commit his worldly prospects, his char- | protected by the prayers of a doting and dis-
acter, his happiness, and fate on earth to the tracted mother, and of his agonized sisters.
adverse observations of most able counsel, and He may stand in that box, and you may occupy
to the deliberations of your judgments. At from day to day that seat of torturing suspense
the time of life at which most of you have which the gallant brother of my client has
arrived, I cannot hope successfully to call on now filled for so many days. A jury may be
you as perhaps I might on younger men, and called to pass upon his actions, and to devote
entreat you to commune with your own hearts, to ignominy, one intended by nature to be an
and to consider the failings and the frailties of ornament to the community in which he lives,
youth. I scarcely dare say to you, that the in- and whose heart is guiltless of any criminal
discretions of a young man often result from design. But by what rules would you wish
the noblest elements of our nature; that God that son to be judged? Would it be by those
has given to him warm blood, a sanguine tem- rules, if any such there be of human contriv-
perament, and ardent spirit, that nature will ance, which are reckless of the innocence of
occasionally have its course, and that the work- man's intention, which adjust offences by arti-
ings of nature must be indulgently and merci- ficial reasonings, and constitute crimes from a
fully viewed by all who are made by nature's guilt created by themselves; or by that rule
God. I fear your opinions may be too severe which comes direct from God, and by which
for such an appeal, and that there is no point he administers justice in mercy to all his crea-
of contact between you and the unfortunate tures? Would you not entreat that his fellow-
prisoner at the bar, by which I can hope to men might deal with him as you trust the gen-
awaken your sympathies. But there surely is- eral Searcher of Hearts will deal with him on
some of you must be fathers. Has any one the final judgment of us all? So do you by my
among you a son, noble, brave, and generous, client. If his intentions were base and wicked,
whom you love with all a father's fondness, I do not seek to save him; but I entreat you,
who is the delight and pride of his mother's try him by his intentions, as that Judge will do
heart, and lovely in the eyes of his sisters? who regards not technical distinctions, which
Think on him. He may be involved by the are the offspring and proof of human weakness,
hasty error of a moment, or by the precipi- whose All-seeing eye looks into the heart of
tancy of another, in one of those terrible con- man, and if that heart is guilty will condemn;
flicts which the noblest and the bravest cannot but if innocent will acquit. I call upon you
always avoid. If you have such a son, my elo- now, and I only ask you to act with the pris-
quent adversaries, who are to speak when I oner, as I hope the God of mercies will, when
must be silent, may perhaps place him before you and he shall stand before that awful pres-
your eyes, and make a parallel between his fate ence, you to answer for your verdict, and he
and that of Stoughton. If so, I must submit to for his indiscretions. Let your judgments be
it. But let me conjure you, that even the ten-tempered by a portion of the Almighty's love-
der feelings they may excite, may not estrange
your hearts from mercy. Remember, also,
that if he should be engaged in such a deadly
contest, he may not be so fortunate to close his
eyes, and escape from the sorrows, the calami-
ties, the miseries, and the agonies of life. He
may be the wretched survivor; though guilt-
less of any evil intent, he may be doomed to
nourish in his bosom a never-ending pang; you
may hear him exclaim to you in the depth of
grief, as that young man has to myself, "Would
to God I were in Stoughton's place! He may
stand accused in that very box, surrounded by
the fears and anxious wishes, but I trust in God

liest and divinest attribute. The rule by which
He will judge us as sinners, sheds a light of
justice for your guidance, compared with which
the learning of these books is darkness; and
wherever they blindly depart from it, they are
only filled with technical subtilties and meta-
physical error. Like the God of wisdom and
benevolence, attach crime to the intention,
and to nothing else absolve the innocent of
heart; and when you return to the bar with
your verdict, say to my client in the blessed
words of the redeeming Son of that God—"Go,
and sin no more!"

1

1

GEORGE RICHARDS MINOT.

Judge Minot was one of the most prudent and moderate men of his age. He was descended from an English family, of which George Minot, one of the first settlers of Dorchester, Massachusetts, was a member. This George Minot, after serving thirty years as a ruling elder of the church in his adopted town, died during the winter of 1761, much lamented by those "whose weal he sought, and whose liberties he defended." His great-great grandson was the father of the present subject, and is described as a "gentleman of education, liberal principles, and exemplary character." He died in Boston on the fourteenth of January, 1787, in the seventysixth year of his age.

His celebrated son, the youngest of ten children, was born at Boston on the twenty-second of December, 1758. His childhood is spoken of as a continual exhibition of mildness and amiability. "That peculiar tenderness, with which the youngest child is treated in affectionate families, he was so happy as to experience; and the love which he received from all who surrounded him, early moulded his heart to that benevolence, which formed so conspicuous a part of his character during every period of his life."*

Having passed through several preparatory schools, in which he won a high reputation for his studious habits, his rare rhetorical powers, and his unabated kindness for his fellow-students, he entered Harvard College at the age of sixteen. On receiving his first degree, which was accompanied with the highest honors of the college, he commenced the study of the law, with William Tudor, then an eminent lawyer and influential citizen of Boston. Here he enjoyed the companionship of Fisher Ames, who was a student in the same office. Here, says his eulogist "his own genius caught fire from the flame, which burned so intensely in the imagination of his friend ;" and he predicted the splendid reputation which this friend would in future acquire.t

In July, 1781, Mr. Minot took his second degree, and soon after was appointed the first clerk of the House of Representatives, under the new constitution of Massachusetts. In this station he became thoroughly acquainted with the causes which led to the celebrated Massachusetts insurrection, and after the termination of that affair, he prepared and published an elaborate history of it. This work, which was one of his first literary efforts, was compared with the Catiline conspiracy of Sallust, and was said to be without a rival in any previous provincial publication. In 1782 he delivered an oration commemorative of the Boston massacre.

When the Massachusets Convention assembled in 1788, to consider upon the adoption of the Federal constitution, Mr. Minot was appointed the secretary. In January, 1792, he was placed on the bench of the probate court of the county of Suffolk, and in 1799 he was appointed chief justice of the court of common pleas. An incident connected with his judicial life has been preserved: "In the month of August, 1796," he says in his journal, "I was appointed to act as State's Attorney for the county of Suffolk, the Attorney General being absent upon the business of the boundary river, St. Croix. A number of disagreeable events, which I shall ever recollect with the greatest pain, concurred at this time to disqualify me for the task, which I felt

• Character of Judge Minot, in Massachusetts Historical Collections. Vol. 8, page 89.

+ The same.