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Gerrit Smith Broadside and Pamphlet Collection

The arguments of Gerrit Smith and David J. Mitchell, and the charge of...

Smith, Gerrit, 1797-1874.

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Call number: Smith 510

OF

AND

AND THE

CHARGE OF JUSTICE MASON,

IN A

TRIAL FOR MURDER.

OF

AND

AND THE

CHARGE OF JUSTICE MASON,

IN A

TRIAL FOR MURDER.

Mr. John Buck had lived some sixty years upon his farm, situated on the Cherry Valley Turnpike;, in the town of Nelson, County of Madison, and State of New-York. His house was on the north side of the Turnpike, and about twenty feet from it; and its only outer door in use at the time of his death was at the west end. His horse-barn was directly across, and on the south line of, the Turnpike: and in that he was found dead Friday evening, March 14th, 1856. He had a wood-lot, some fifty rods south of his horse barn.

Soon after midnight, Saturday morning, George William Zecher, who lived in the town of Eaton, nearly three miles north-east from the above farm, was arrested for the murder of Mr. Buck. He was examined, and committed to prison to await the action of the Grand Jury. Tuesday, Sept. 16th, 1856, he was indicted for murder at the Madison Oyer and Terminer ; and the next morning he was put upon his trial - Justice Shankland presiding. David J. Mitchell and Henry C. Goodwin were the Counsel for the People. Gerrit Smith, Duane Brown and William H. Kinney were the Counsel for the prisoner. Mr. Smith and Mr. Mitchell argued the case. Saturday morning, the Jury, not being able to agree, were discharged.

Monday, Des 1st, 1856, the prisoner was again put on trial at the adjourned Madison Oyer and Terminer - Justice Mason presiding. The same counsel as before: and Mr. Smith and Mr. Mitchell again arguing the case. Friday evening the Jury acquitted the prisoner.

Mr. Zecher says, that he was born in Frankfort-on-the-Main, in Germany, March 6th, 1830; that he married Mary Bagung, of Harburg, Hanover, August 5th, 1853; that they set sail from Bremen, Nov. 5th, 1853, and landed in New-York December 20th. Their only child, Charles, was born October 80th, 1855.

Mr. Zecher and wife, like their parents, belong to the Lutheran Church.

May it please the Court:

Gentlemen of the Jury:

As you are, aware, the prisoner has once be ore been put on trial for his life.

I was sad, very sad, when I learned that the former jury could not agree. In a few days, however, I was glad of it; for in a few days new testimony turned up in favor of the prisoner, which could not fail to make his innocence more apparent, and to restore him to society an unsuspected man.

You are aware too, that on the former trial also, I took part in defending the prisoner. I did so, because I was convinced then; as I am now, of his entire innocence of the crime laid to his charge. I do not suppose that you, gentlemen, can be as thoroughly convinced of it as I am. Few can be; for few have had my opportunities to witness the manifestations of his harmless, childlike spirit, and to study the beautiful traits of his character.

My conviction of the innocence of the prisoner dates back to my first knowledge of the principal facts in the case of Mr. Buck's death. As soon as I heard of his cutting off of the skirts of his coat, I was persuaded of his innocence. For I could not imagine that a man of sanity and common-sense would go straightway from the perpetration of such a bloody deed, and cut off the skirts of his coat. I could not imagine that such a man would thus advertise himself as the murderer. It is just what a simpleton, an idiot, a madman might do, in such circumstances, but it is the very last thing that a man of sanity and

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common-sense, (and such is the prisoner,) would do. Yes, so it was, that whilst so many others regarded the cutting off of the skirts as a very strong evidence of his guilt, I could not fail to regard it as a very strong evidence of his innocence. By all the laws of mind, by all our knowledge of man, by all the history of human nature, the cutting off of the skirts betrayed not guilt, but proved innocence.

Having heard that the prisoner was a German, I went to see him a few days after he was committed to jail. So occupied is all my time, that but for my having heard of his being a German, I should probably never have seen him. With the help of may little knowledge of his language and his little knowledge of mine, we were able to understand each other pretty well.

His countenance pleased me at first sight; for you see how open, and pleasant, and intelligent it is. Not less was I pleased with his simple, artless manners, and with his straightforward account of himself. I left him with a deeper conviction of his innocence. Since then I have visited him frequently; and have received a great many letters from him written in his own language. I feel that I am now well acquainted with him; that I have read his heart, and understand his character.

Having, before I ever saw him, believed him to be innocent; and having confirmed this belief through the influence of his looks, and lips, and manners, I could not refuse to defend him. He stood before me a stranger in a strange land; a friendless foreigner; above all, an innocent man ; and I saw how frightfully strong the tide of predudice and hatred was running against him. How could I refuse to defend him ?

I would here say that it is the truthfulness of the prisoner, which, more than all his other virtues, has impressed me. It is this, which is in my eye, the chief charm of his character. It is by this, more than by all things else, that he has won my heart.

Out of the scores of instances in which the prisoner has been interrogated in regard to Mr. Buck's death, the Counsel for the People been able to find but one, in which the answer was contrary to truth. That was his "No" at Sherman's - an innocent mistake, as we shall hereafter show. Innumerable are the instances in which persons have visited him in the jail, some of them for the purpose of seeing him cross himself, and of catching him in his words. Had they succeeded, the vigilant Prosecutor would have quickly learned it, and would have been sure to bring his proofs of it before you.

Nothing is more beautiful or sublime than steadfastness in the truth, especially when it is maintained at the hazard of life. A glorious example of sash steadfastness is attributed, I know not how justly, to that celebrated English patriot, Algernon Sidney. After he was condemned to die, the proposition was made to him to save his life by denying his authorship of certain papers. His prompt answer was: "When God by his providence teaches me, that, in order to save my life, it is necessary for me to tell a lie, He teaches me by the same providence, that I have lived long enough. I am ready to die."

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This was indeed beautiful and sublime. And yet I have seen in the humble, prisoner before you instances of adherence to the truth as uncompromising and as self-sacrificing as any which grace the life of the best of men.The Court could not have. allowed us to prove them; and therefore we did not offer to prove them. Very glad would we have been to have you hear from the lip's of several witnesses his noble answer to the formal and solemn proposition, that he should confess the crime of manslaughter, go to State prison for a few years, and save his life. "When," said he, "the Almighty God brings me into a place in which I see I must lose my life, I am willing to lose it. But I am noting to tell a lie to save it. I never hurt Mr. Buck." I wish too, you could have had in proof before you his no less noble answer on another occasion. The witness, Mr. Cole, was sure until a few hours before he came to the stand on the former trial that it was the day of Mr. Buck's death that he saw him and the prisoner sitting together by Mr. Buck's fire. The prisoner knew that it was the day before; and he sternly refused to let Mr. Cole testify under his mistaken impression. He wished to live, but not by letting the witness swear falsely.

I referred to the new evidence which came to light soon aver the former trial. But, gentlemen, it is not only with the advantage of this new, abundant, and decisive testimony that I stand before you. I rejoice in the further advantage of knowing what will be the probable positions and reasonings in the speech that is to follow me. When I spoke to the former jury, I could not know what. would be the Prosecutor's lines of argument. I could not know use he would make of the testimony.; what views her would take of it; what theories he would build upon it; what conclusions he would deduce from it. I felt the disadvantage of going before him.But now, in no unimportant sense and to no small extent, I have the advantage of following him.

The Counsel for the People takes the ground, that Mr. Buck was murdered - not that he was killed in the passion of the moment, but that he was killed with premeditation, with deliberate purpose, with malice. In a word, he takes the ground that this is not a case of manslaughter, but a case of murder. His Honor, Judge Shankland, who presided at the former trial, told the jury, that if here was a crime, it was murder. His Honor was undoubtedly right. Had Mr. Buck been a young man, or any thing less than a very old man, he might, by means of some deeply offensive remark; by means of some intensely insulting or exasperating expression; have provoked a deadly blow. But he was a feeble old man, bent down under the weight of more than eighty years; and surely no person's anger could be roused to strike such a man. It is true, that I have heard of wretches who could slap their mothers, but never of any who could slap their grandmothers.

We proceed then to inquire for what purpose, Buck was murdered. Was it to answer the calls of hatred, and to gratify revenge? But so far as I have learned, there was no person but Blowers, who hated him: and I have no belief, that his was the deadly hatred, which

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prompts to murder. It is true that Blowers had, by his own confession, a pretty earnest quarrel with him; that he swore at him and threatened to sue him. But certainly he might have had such a quarrel without murdering him. Again, if Blowers had been wicked enough to murder him, he surely would not have been so foolish, as to murder him in open daylight, and by the side of a turnpike road. And again, had he been wicked enough to murder him, it does not follow, that he would have been wicked enough to leave this poor innocent foreigner to be arrested and put on trial for the murder. That would have been adding one murder to another, and the last the worst. No, if Buck was murdered, it was not out of hatred, and to gratify a spirit of revenge. What then could he have been murdered for? For what else than his money? But whatever prompted to his murder, it is unreasonable to suppose, that he was murdered at mid-day and in a barn, which stands on the side of a much travelled road. He would have been murdered under the cover of night - in his house - in his bed. He lived alone, and the old hermit might have been murdered without the danger of human witnesses.

But why say Buck was murdered for his money? His money was found upon his person. Yes, but there are proofs that his money was sought for. Are there? If sought for, why not found? If found, why not taken? But it was not taken; and hence, it was neither found nor sought for. What however, are the proofs, that his money was sought for?

1st. Blood was found in the house. But it was not found nor looked for until the next day after Buck's death: and the evening of his death several persons went from the bloody barn and bloody body into the house, taking with them, as it may reasonably be suspected, on their hands and clothes, more or less blood.

But who saw blood in the house? Howard. Poor Howard! so greatly did the occasion play upon his imagination, that he saw blood everywhere. He could see the bloody print of a, whole hand. He saw blood even on the cupboard - thus making his murderer as greedy for meat as for money. But you remember the spirit of his testimony. There are persons - I hope he is not one of them - the highest luxury of whose life is to see a man hung.

Clark testified on this point; and, although he is the son-in-law of Mr. Buck, never did I see in a witness more self-possession, nor a freer play of reason and candor. He looked for blood where Howard saw it - but did not find it. He saw here and there slight stains but in his eye they had no appearance of blood. All the blood he saw on the house was a spot "as big as a wheat corn." He saw also "some specks on the wood" in the chimney corner.

Topliff also testified on this point. He searched for blood, but found none - not even on the wood. He searched for it in the ashes. He searched for it in the snow, wherever he supposed the bloody ax might have been cleaned. But all in vain. No blood could he find. But would it have been the least proof of murder, had even many and large spots of blood been found in the house? The prisoner was in the house every day, or every day or two; and never did I hear of

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a person so subject to the nose-bleed. We have brought physicians before you, who swore that some two years ago they prescribed for his nose-bleed; and other physicians, who have known of his nosebleed during the last year. Dr. Barnett swears that he has seen the prisoner faint from the loss of blood and his shirt saturated with it; and that his turns of nose-bleed were sometimes as frequent as three times a week. Had blood, and, even in considerable quantities, been found upon the wood, it might have got there when he was chopping it.

But why make any account of the blood found in the house, which, at the most, was but a few well-nigh, imperceptible particles? The only question here of the least importance is, whether blood was found upon the chest or upon the chest of drawers? There was none: and I add here, that none was found upon the pocket-book. Just where blood would be most like to be found, had the killing of Buck been for money, there was not a speck.

2d. The next proof that money was sought for, is in the brokenopen conition of the chest of drawers. But this was disposed of by Mr. Jones, who swore that he had, before Buck's death, noticed it to be in this same condition.

3d. The next proof that money or other treasure was sought for, is in the marks that the chest (I am not speaking now of the chest of drawers) had been broken open. But what were these marks? White testified, that there were slight marks on the lid, and slighter on the edge.Clark saw none on the edge.Barnett and Topliff saw none on the edge, and only a little scratch on the lid. Evidence that the mere pin-scratch, which Clark saw, might have been there for years, is in the fact testified to by him, that it looks as new now, as it did the day Buck was killed. So will it look as new ten years hence as now, if, during all that time, the light and air shall be exeluded from it.

But how idle was it to undertake to prove that the chest was pried open! What motive to go to the pains of prying it open, when the key was one of the bunch in Buck's pocket?

I ask again, why believe that Buck was murdered, when his money was found in his pocket, and when too, the money and silver spoons and watch in the chest were all undisturbed? Strange murder this! A MURDER WITHOUT A MOTIVE: A CRIME WITHOUT A CAUSE. But the Prosecutor will perhaps argue, that this is one of those cases, in which the murderer is so horrified at what he has done, as to run immediately after he has struck the fatal blow. Surely, however, it is not competent for him to say so, since a vital part of the hypothesis on which he seeks to establish the guilt of the prisoner, is, that after having killed Buck, he tarried in the barn to make arrangements for hiding the murder; and then took time to wash the bloody ax, and to carry it across the street to its proper place in the most, distant room of the house. No, there is not one sign, that the alleged slayer of Buck belonged to the class of easily affrighted murderers. On the contrary, there is, according to my opponent's theory of the ease, every sign, that he was as self-possessed and defiant, as cool and leisurely a murderer, as ever lived.

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But if Buck was murdered, with what was he murdered? With an ax is an essential, part of the Prosecutor's hypothesis. What ax? That, which was kept in the south-east or most distant room of Buck's house. Is she Counsel in earnest? Does he really mean that the murderer carried the ax from the house to the barn, and then back to the house, accross a turnpike road, on which, according to the testimony, an unusual number of sleighs were passing, during the mid-day hour assigned for the murder? Absurdity of absurdities? Nonsense of all nonsense! Murder seeks concealment. It does not court publicity. But why was this the ax? Because it was bloody when found. Of course: and to be in keeping with this boldest and most reckless of all murders, it should have been very bloody. To correspond with the various other and purposed publications the murder, the ax should have been allowed to drip blood all the way from the barn to the house. Nevertheless so it was, that not one speck of blood was to be found between the barn and the house; and so it was, too, in, the view of the witnesses, that the ax had the appearance of having been "washed or wiped." Most inconsistent murderer! Why, the fellow was as inconsistent as our slavery politicians and pro-slavery divines. He should have been as bold and bloody at the last as at the first.

But to be serious - was the ax bloody? I do not ask whether Howard saw blood upon it. When this poor victim of an inflamed imagination swore that he saw "a chunk of ice and blood" upon the ax, I was more pained than amused by this instance of imagination run mad. No, you do not care to remember what Howard swore. But what did men swear, who had not surrendered their reason to their imagination? White swore that there were slight appearances of blood upon the ax, "diluted and pale." He saw such an appearance "about one eighth inch wide" across one side of the helve. The blood, which Howard swore he saw in a flaw of the ax, White called "a rusty look on the bit of the ax." Clark swore that the slight appearances of blood "looked old."

And now for the explanation of the bloody appearances on the ax.

1^st. Howard did not see the ax until some sixteen hours after the discovery of Buck's death; and the other witnesses saw it still later. But during these sixteen hours blood designedly or undesignedly may have come in contact with it.

2d. As little blood as was found upon this ax, may be found on no very small share of the axes that are in use.

3d. It, may well be supposed that the prisoner, who spent so much of his time at Buck's, used this ax occasionally. And it is only strange that his everlasting nose-bleed did not bloody every thing he touched.

4th. A calf had been "killed with this ax a few weeks, before. I know that Blowers swears that it was not with this ax. But I must judge him to be mistaken, because he is confronted by several witnesses as positive as himself. I do not call in question Blowers' sincerity.

5th. But the testimony of Cole most satisfactorily and beautifully

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explains any and all bloody appearances upon the ax. And when we have such a simple explanation at hand, it is unphilosophical and absurd to go in quest of another. When too we have an explanation that makes for innocence, it is exceedingly unjust, wicked, base, to be mousing after one that will involve guilt. Only the afternoon of the day before Buck's death, Cole worked a long time upon his broken cutter with this axe. His fingers were bleeding from wounds not yet five hours old. The falling snow melted and mingled with the blood of his wounds, and gave it to the "diluted and pale" appearance, of which White spoke. Moreover, this fully accounts for the ax's appearing to have been "washed or wiped."

But it is said that the snow and ice upon the ax would have melted before the next day. And what if this were so? Could not more have collected upon it by Buck's use of it, the morning and afternoon of the day he was killed? He kept it in his room for daily use in clearing off his door-sill, or in doing whatever else an ax might be needed for.

Is it true, however, that the snow and ice would have melted? It is manifestly untrue.

1st. The weather was very cold, and there was but one fire in the house.

2d. Buck's house was too old, dilapidated, and open to be fit to live in.

3d. There was no stove in the house, nothing better for warmth than large fire-places. The ax stood five feet one side from the centre of the fire-place.

4^th. Buck was famously economical of wood.

5^th. Both Wednesday and Thursday nights there was no fire in the house, for both of those nights Buck slept at Howard's. Before one o'clock on Thursday Cole found Buck sitting over and expiring fire. There is no probability that it was re-built. We learn by Hamblin that the fire was not built on Friday until after ten o'clock, and that it was a small fire. Howard makes it ten when Buck left his (Howard's) house.

Now, in the light of these facts, it is simply absurd to say that the ice and snow, which were upon the ax on Thursday afternoon, must have melted off by Friday.

But suppose it is true that Buck was killed with the ax, in other words, that he was murdered, why single out the prisoner as the murderer?

1st. Must he be singled out because he is poor? Indeed, he is poor. On my first visit to him he told me that he had not one cent. But is a man to be suspected of crime, and of the highest crime too, simply because he is poor?

2d. Must he be singled out because he is a foreigner and a stranger? Is a man so much more like to be the criminal, because he is a foreigner and a stranger?

3d. Must be he singled out as the murderer because he was at Buck's the day Buck was Killed? He spent many of his days there in chopping and other work. He was there all the previous day.

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4th. Must he be singled out as the murderer because he disappeared so suddenly from Hamblin's view? Let us, recall the facts regarding this disappearance. As Hamblin was about leaving Buck Friday morning, he saw through the windows a person (evidently the prisoner) pass-west. Hamblin went out, looked: east and west, and saw no one. But, according to Mr. Lincklaen, who surveyed and mapped the localities in question on this trial, the prisoner, had he turned and gone south in the path to Buck's woods, would, in a moment or two, have been out of Hamblin's sight, even had Hamblin looked south also, as well as east and west. The disappearance would, have been owing to the board fence on the south side of the barn-yard, and to the descent of the ground south of that fence. Now, did the prisoner take, that direction, or did he, as the prosecutor would have you believe, dart around Buck's house to hide himself with murderous intent? You have but the prisoner's word for believing that he went to the woods, and was gone some fifteen or twenty minutes for the purpose of throwing into a heap wood he had chopped the day before. But happily you have the Welshman's (Zephaniah Jones') oath, that the prisoner was gone about that length of time; and that instead of being a lurking murderer, he stood out in open day by the side of the road, and exposed to the observation of whoever might pass him. The Welshman, as he went west by Buck's, saw the prisoner in full view. God be praised for this Welshman! But for him there would have been an enduring suspicision that the prisoner was hastening to hide himself, when Hamblin saw him pass so quickly by the windows.

5th. Must the prisoner be singled out as the murderer because he was seen on his way from Buck's to walk fast by one house, (Mr. Westcott's)? But remember, that by one of the next houses, and for a quarter of a mile, he was noticed by Lovina Chapin to walk slow. Remember, too, that Reed testified that he saw him walking fast on his way to Buck's that morning. He added that the prisoner was in the habit of walking fast, and even running, when on his way home. Little conscious was the simple-minded Reed of the beautiful compliment to Zecher, which lay folded up in these words. I was not surprised to hear of this habit of walking fast, and running toward home; for never did I know an instance of stronger love to wife and child. No, it surely should be no wonder, if in the case of the prisoner, as in that of. another homeward bound husband and parent, whom a sweet British poet describes:

But that the prisoner did not hurry home from Buck's that day, is very manifest from the fact that, when he had gone two miles of the three, he went of his own accord into Sherman's, and sat there half an hour.

A few words right here in reply to the position taken by the prosecutor on the former trial, that the prisoner's going into Sherman's was an affectation of ease and unconcern for the purpose of turning off all suspicion from himself as the murderer.That it was such an af-

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fectation the prosecutor argued very ingeniously and impressively from the fact, that the prisoner asked work of Sherman, whilst only that very day he had, on his way to Buck's, declined to work for Wadsworth. On the present trial, however, we have been able to bring forward testimony, which has effectually blocked the way of the prosecutor at this point. Let us see, gentlemen, precisely how this matter stands before you.

1st. It is not true that the prisoner absolutely refused to work for Wadsworth. Wadsworth swears that he asked the prisoner to chop for him, and that he answered: "I have a job of chopping for Mr. Stone."Wadsworth then asked him if he would chop for him when he had done chopping for Mr., Stone. He answered: "I will see."

2d. We have proved by Stone that the prisoner had chopped for him a little time before Buck's death, and was under engagement to chop more for him. We have proved also, in order to justify his preference to chop for Stone, that whilst Stone's woods are only a quarter of a mile from the prisoner's house, Wadsworth's are two miles and a half from it.

3d. To show that he already had chopping enough to do, we have proved, that he was chopping more or less every week for Buck.

4th. But he did not ask for chopping at Sherman's. He proposed there to hire himself out by "the month for the open season of the year to do farm-work.

5th. Remember, too, that whilst Wadsworth's woods are 2 1/2 miles from the prisoner's house, Sherman's farm is less than a mile.

Right here, too, I would notice the .attempt of the counsel for the people to make something out of the fact that, on the prisoner's return home the day of Buck's death, he told Myron Mead, (in a part of whose house you recollect the prisoner lived,) that he had been at Sherman's, but did not tell him he had been at Buck's. That he should tell him of his being at Sherman's, and of his conversation with him about work and wages, etc., was very natural, for this was news.But that he should tell him as a piece of news that he had been at Buck's, when Mead so well knew that he was at Bucks half the time, would provoke him, were he a profane man, to exclaim ironically and derisively: "The devil you have!"

But, gentlemen of the jury, I will return from these digressions to resume the questioning on which I had entered. I had asked why, if Buck was murdered, the prisoner, should be singled out as the murderer. I had asked, was it,

1st. Because he is poor ?

2d. Because he is a foreigner and a stranger ?

3d. Because he was at Buck's that day ?

4th. Because he disappeared so suddenly from Hamblin's view ?

5th. Because Mrs. Westcott saw him walking fast?

You have seen, that for none of these reasons should he be singled out as the murderer. I now proceed to ask you whether he should be so singled out.

6th. Because he said "No" at Sherman's, when he should have said

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"Yes"? Sherman asks him: "Have you been at Buck's today ?" Answer: " I was there yesterday and cut him some two-feet wood." Sherman then says: You have not been there to-day ?" Answer: " No." ;Shir&6n then asks: "How does Mr. Buck get along?" Answer: "He is smart."

Now the prisoner was aware, that Sherman saw him pass every day, or almost every day, ax in hand, to chop for Buck. How natural then that the should fall into the mistake that Sherman asked him, if he had been chopping there that day! His answer itself shows that he fell into it. That he should interpret then question also to refer to chopping, is still more natural.His answer to the last question speaks of Buck as he was at that time, and not as he was at some former time. His answer implies that he spoke of Buck's condition that day.

It is a shame to make a man an offender for a word, especially a foreigner, who knows our language so imperfectly, as the prisoner does, By the witnesses Mead, Waggoner, Havens, Mayberry, and Barnett, we have shown how blundering was his speech before his arrest, and how blundering it has been since. Some of the witnesses speak of frequent mutual misapprehensions, when conversing with the prisoner.

But there are two other answer to the charge that the prisoner uttered a willful falsehood at Sherman's.

1st. Never anywhere else did he deny having been at Buck's that day. We were ready to prove that he promptly admitted it, when he was arrested. But such proof would not have been admitted. Sure may you be, however, gentlemen, that had he denied it, abundant proof of the denial would have been brought before you.

2d. The other answer to the charge of willful falsehood is, that there would have been no possible motive for it. A dozen people saw him all along the way to Buck's, and a dozen people saw him all along the way back.

What, if on my way home this evening, a man shall ask me if I have been to Morrisville, and I shall answer, "No" - is he, when he learns that I have been there, to set me down a liar? Certainly not. For why should I be so wicked as to lie? Moreover, why should I be so foolish as to tell a lie when there are a thousand witnesses to convict me of of it? The man should take it for granted that I had simply misapprehended his question. And so, too, Sherman should have taken it for granted that his question was misunderstood by the prisoner.

Oh! it is very unjust, very cruel, to seize upon this innocent mistake of the prisoner, and to torture it into an attempt to hide a murder! And in this connection would I speak of the map, exhibited to you by the Counsel for the People. So far as the intent of that map was to show the order of events, and to mark time, I have no complaint to make of it. But when it is used for the purpose of tracking the prisoner as a sly murderer on his way to and from Buck's, then is its effect upon him most unjust, most cruel. For when has the prisoner denied that he went to Buck's, and returned from Bucks, by just

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the routes, and past just the buildings, which the map indicates? Never, never, never. From first to last he has always admitted every thing proposed to be taught by the map. In this connection would I also refer to the attempt of the Counsel for the People to make something on the former trial out of the foot that the prisoner returned home from Buck's by a different way from that, which he took to go there. But it turns out that the two roads are of nearly equal length; that the one, on which he returned, was less drifted, and better beaten than the other; and, moreover, that it had been repeatedly travelled by him before.

The Miss Shermans testified that the prisoner, when at their house, looked pale. That this was only their subsequent imagination seems quite probable from the fact that they confess, they never spoke of the paleness, until after tjey heard that he had killed Buck. But when You recollect how frequent were the seasons of his nose-bleeding, and how pale he was at those seasons, as proved by Dr. Barnett, you will make no account of the Miss Shermans' testimony.

I proceed, gentleman, with my inquiries, why, if Buck was murdered, the prisoner should be singled out as the murderer.

7th. Must he be singled out because he cut off the skirt of his coat soon after returning home from Buck's ? But, as I have already said, his doing so betrayed not his guilt, but proved his innocence. This would be still so, (though I admit not so unqualifiedly,) even if he had burnt the skirt. But he did not burn it. It is preserved until this day, and it reaches all around the coat, except the corner, from which, as Blakeslee and Hageman testified, a large piece had by accident been torn long before Buck's death.

Why did the prisoner cut off his skirt? Happily he assigned the reason in his broken English in the presence of the little girl, who testified before you yesterday. You recollect, gentlemen, that the Counsel for the People objected to her telling the reason, which the prisoner gave for cutting off his skirt. He held that it was not legal testimony. You recollect, too, how quickly I then implored him, for the sake of justice and humanity, to let her tell it ; and you recollect, too, how promptly he yielded to my appeal. His concession, at this important point, did him much honor. In both the trials he had impressed me with his great ability. But when he made this concession for the sake of the poor prisoner, my heart went out to his, and I felt like doing him a thousand-fold more honor for his generosity and goodness, than for all the power of his brilliant intellect. I add, gentlemen, that the liberality of the counsel in this instance was a beautiful example of magnanimity and justice, which the profession would do well to follow. But to return, what was this reason, which the little girl swore the prisoner gave for cutting off his skirt? Why, it was just that most simple and natural reason, which shows how entirely innocent he was in cutting it off. She swore that having cut off the skirt, he ladd the pieces down, saying: "They will be good to mend my coat with." And you, gentlemen of the jury, saw how much his poor old tattered coat needed mending, if, indeed, you thought it worth mending. Never was my heart more touched than

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by a few words, he spoke to me on the former trial. He watched the jurors, as they inspected the coat and skirt. He feared that they could not enter into his destitution, and, sympathize with him, and understand why he should save such rags to mend such rags, and he whispered into my ear: "Oh Mr. Smith! They don't know how poor I am!

Why did the prisoner choose that day for cutting off his skirt? His own account for himself makes this and every other matter plain. Of course, such account is not evidence. Nevertheless It may be useful as one of the hypotheses to aid you in solving the problems in this case. The prisoner says that he did not enter upon this day as one of his chopping days; but that he appropriated it to several necessary little pieces of work.

1st. He would go to Buck's, pile up the little wood that remained to be piled up; settle with Buck; and buy some meat. He says that Buck told him that for lack of change he could not pay him that day, but that if he would work for him the next day, or Monday, he would be prepared to pay him.

2d. He would that day mend his coat; but so it was that when he came to sew, his thread was gone. The German, (Hageman,) who had lived with him, had used the thread without the prisoner's knowledge. So Hageman testified before you.

3d. He would that day write to his parents in Germany. This purpose he fulfilled, as you learned from the testimony of Mead and the little girl.

I pass on now, gentlemen, to the next u query.

8th. Must the prisoner be singled out as the murderer, because his coat was bloody? If all besmeared with blood, would not his habitual nose-bleed, and, what we have also proved, his occasional butchering, satisfactorily account for it? But, gentlemen of the jury, is there any blood upon either the coat or pieces? There is a spot of blood on the under side of one of the buttons, and the button being horn, the prisoner could, of course, have cleaned it in an instant. His cutting the day before the fingers, which one uses in buttoning a coat, explains this spot of blood. Mead swore to the cut, and one of the Miss Shermans noticed that it was bloody. Now, I venture to affirm that, beyond this one spot, no blood is to be seen on either pieces or coat. None else was seen by you. None else was seen by the former jury. You saw two or three very slight and faint stains. So did the former jury. As they appear now, just so did they appear then. It is indeed possible that there may be a little diluted blood in one or more of those stains, but I deny that there is to the eye any evidence of it. New cider, wine, grease, a thousand other things, I can easily conceive, might produce such stains as these; but unless a person is intent on finding blood in them, I care not how keen his vision, he can not find it.

But whence comes it then that, in this state of facts, witnesses could awar positively before you, that they saw blood - blood in several places - on the coat and pieces? It is for them - not me - to

answer. They swore upon their own responsibility. I am glad it was

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not on mine. They did not claim to see blood now. Wit had become of it? They judged that it must have faded out! The cost and pieces have, from the time they were found, been kept under look and key, and excluded from all light and air-and yet the blood has faded out! Superlative nonsense! They have been handled too, say these witnesses. The stains - if indeed such exceedingly slight discolorations may be called stains - have been looked at, not handled. And what, pray, is the sum total of the time, that the coat and pieces have been handled? Not one hour. These witnesses swear now, as they did before, to a great change in the coat and pieces. On the former trial I was disposed to laugh at them - to make fun of them and to quote Shakespeare over them; but I am in a different and sterner mood to-day. I confessed on that trial that there was indeed a change: but I showed them that the change was exclusively in themselves. They went to the prisoner's house for money. Finding none they looked for blood. Their imaginations could not coin money, but they could easily coin blood. Hence they found blood, blood, blood - blood in abundance, blood here, and blood there, and blood everywhere. But when they came into Court, they could no longer see the blood. They could no longer see it, because they stood no longer upon enchanted ground. They could no longer see it, because their burning imaginations had got cool. They could no longer see it, because reason had reasserted her sway over them, and those phantoms of a distempered fancy which had so sadly abused their understandings, had given place to sober realities.

I said that I am in a sterner mood to-day. I could have borne it, had the witnesses testified that. these, slight stains looked somewhat like, or even much like, blood - though. to swear thus would have been very extravagant, and very unjust. But when I heard them swear positively, that they saw blood, and blood, and blood, I confess that a well-nigh irrepressible indignation rose within me. Oh! it is wicked to be eager to adopt the worst constructions, and to form the most uncharitable judgments against our brother! Oh! it is devilish to do so, when the purpose is to aid in compassing his death! Emphatically true is this when the poor perilled brother is a stranger, and a foreigner, and destitute; and therefore lies mute and helpless upon the bosom of our mercies.

But why have I spent so much time upon "the bloody coat," which proves not to be a bloody coat? The theory of the Prosecutor is, that the blood of the murdered Buck flew everywhere - all around, and also upon the joists and floor above. But not one speck of blood was found on the prisoner's pantaloons, and they were light-colored too. Melissa Sherman swore, that her attention was drawn to them because they looked "so clean and new." The prisoner had probably put them on that morning, fresh washed and ironed by his neat and industrious German wife. I dismiss this topic with the simple remark, that to claim that the blood of Buck is on the coat, whilst yet compelled to admit that there is not one particle of it on the pantaloons, is infinite folly and absurdity.

I proceed to my next inquiry.

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9th. Must the prisoner be singled out as the murderer, because he happened to be present the evening that Jason Mead entertained his company with those lies and wonders about Buck.'s treasures - gaping, as you recollect the old lady Mrs. Van Patten testified, that there was money "in every chest, drawer, aid- trunk" in Buck's house - also in a jug in the cellar, and in the cellar walls? For the prisoner's happening to hear this, the Prosecutor would have him hung. ould the Prosecutor consent to be dealt with himself in this wise? Would this Doctor be willing to take his own medicine? The Prosecutor lives in the same village with Dr. Havens. Now, what if he should hear such stuff about the Doctor's riches, as the prisoner heard about Buck's : and the Doctor should afterwards be found killed? Would he admit that to be hung would be but his due penalty for having heard such stuff?

We learn from Mrs. Van Patten's testimony, and it bore every mark of being the testimony of a candid, worthy woman, that the prisoner behaved himself beautifully on the occasion. Mead heaped reproaches on Buck: but the prisoner vindicated him, and deplored his solitary, comfortless life. The prisoner was Buck's friend; and from what the prisoner and Hageman and others have told me, I believe that there were few beings, whom Buck loved as much, as the prisoner's baby. I believe that so person mourned more sincerely than the prisoner on the death of Buck.

The attempt has been made on this trial to show by the witness M. Jones, that the mutual friendship of Buck and the prisoner was interrupted on one occasion. They had an earnest disagreement about a petty matter: and the prisoner said: "You lie, you lie, you lie." But what did the prisoner mean? Simply, that Buck was mistaken. Over and 'over again, has the prisoner, when speaking to me of the testimony, said: "This right" - " that lie. But he would not have used so harsh a word, had our language been more at his command. Doubtless, -gentlemen, you have often observed; that a foreigner, who knows but little of our language, will, when excited and struggling to get out a word, get out one that is offensive, and altogether uncalled for. So, too, you have often observed, that a person ekes out his imperfect knowledge of a foreign language with violent gestures. But Jones testifies, that the gesture, with which the prisoner accompanied his accusation, in this instance, was, only a gentle motion of the hand. The gentleness of the motion proves that anger prompted neither it nor the words. Indeed, Jones says, that Buck and the prisoner were friendly to each other immediately after this disagreement.

It is no small proof of the continued mutual friendship of Buck and the prisoner, that when the prisoner came to remove his family from Buck's to Mead's, they parted on friendly terms, and each invited a visit from the other. So testifies Blakeslee. Hageman lived for weeks in the same room with Buck and the prisoner's family. He testifies to a strong uninterrupted friendship between Buck and the prisoner. He says that the prisoner had the entire freedom of the whole house; and that he had often seen Buck hand his keys to the

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prisoner, and request him to get something from the chest. How absurd the charge, in the light of the last fact, that the prisoner pried open the chest!

I proceed to my next inquiry.

10th. Must the prisoner be singled out as the murderer because of the testimony of Mrs. and Miss Ticker? They believe that they saw Buck, and another man with an ax, going from the house toward the tarp. But if this other man was the prisoner, why not suppose that they were going to the woods, whither they often went: together, the prisoner with his ax? I do not, however, attach very great importance to this testimony of the ladies. They were top far off to be certain of what they saw. For

1st. Although Buck was very deaf and the conversation, therefore, between him and the other man necessarily very loud, the ladies did not hear it.

2d. They cannot tell whether Buck's companion resembled the prisoner.

3d. They disagree as to which hand he carried the ax in.

4th. They, were so far off as to disagree on the important point whether it was Buck or his companion, who was next to them. This disagreement convinces me that they were at least thirty rods off. I have made many experiments on this point; and I find that if two persons are walking nearly abreast of each other, and you have a side view of them, you must be some thirty rods off before it becomes uncertain which is nearer to you. But at that distance an ax can not be distinguished from a cane.

I am strongly inclined to believe that te ladies saw Buck and another man (perhaps the prisoner, for he was there about that time) walking in front of Buck's house. They do not swear to, as the creation of fancy. It is true that they said nothing of it to the gentlemen with whom they were riding, nor to any other persons, until after they heard that Buck was murdered. Nevertheless I think they saw something. How much it is not easy to judge. Not at all do I question their integrity. They are ladies of good character. But if so many men in this case have been swayed by an excited imagination, why can we not suppose that women also may have come under such a disturbing and misleading influence?

But why, because the prisoner was there about that time, suspect him of the murder? Many people were there, or passing there, at that time. Why not suspect some of them? If my clerk is found murdered in my office, why suspect me? I have been with him from day to day, and have not harmed him. So too, the prisoner had been with Buck from day to day, and often ax in hand, and had not harmed him. Why then suspect him?

I ask again, why, because the prisoner was there about the time the ladies speak of, suspect him of having killed Buck ? The prisoner was there but about an hour that day - say from nearly 11 to nearly 12. But the most reasonable hypothesis is, that Buck was killed

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between 5 and 6 o'clock. And now what was the one-relied-on argument of the Counsel for the People at the former trial for rejecting this hypothesis, and for dating Buck's death at from 11 to 12 o'clock? It was, that all were bound to infer from the testimony of the ladies, that Buck, and the prisoner ax in hand, went into the barn; that Buck never came out again; but that the prisoner then and there killed him.

This testimony of the ladies played the all-important part on the former trial. But for it, the jury would, of course, have promptly acquitted the prisoner. So important indeed, was this testimony in the eye of the Prosecutor, that in reply to my criticisms upon it, he frankly said, that he staked the whole case upon it; and that if this fell, he would let the prosecution fall with it. But this testimony has virtually fallen. Certain it is, that testimony discovered since the former trial leaves that of the ladies of no value to the Prosecution. The theory that Buck was killed in his barn immediately after the spectacle sworn to by the ladies, is utterly exploded by his reappearance at his own door, nearly half an hour afterwards. And here, gentlemen of the jury, I would say: believe, if you think it reasonable to believe it, that the ladies saw all, and imagined no part, of what they swore to; believe, if you think it reasonable to believe it, that the prisoner, ax in hand, went with Buck into the barn. Such belief can make for the prisoner only, for it can make only for the prisoner to believe that on that day, as well as on other days, he could be, ax in hand, with Buck, and yet not kill him.

I now take the Counsel for the People at his word - at his word given on the former trial - and I ask him to abandon the prosecution. Will he consent to abandon it? I pause for a reply. He does not consent to abandon it. Perhaps he is not entirely certain that it was after the ladies passed by Buck's, that he was seen alive at his door. Perhaps he would have me prove from the testimony, that it was after. I will accommodate him. And now, gentlemen of the jury, to the proof that it was after the ladies saw Buck, that Norman Felt saw him. I might prove it conclusively by any one of three lines of testimony. But - I prefer to prove it by them all.

In spreading before you those three lines of testimony, I will say nothing of the time of day. That is always more or less uncertain. I will confine myself to the order of events - for in that there is certainty.

A. Eleazer Seymour was in the sleigh with the ladies from Cazenovia to Morrisville. He observed, and has, under oath, minutely described, all the sleighs they met between Tog Hill (two miles west of Buck's) and Buck's. No one of them was at all like Felt's.

B. Half a mile east of Buck's, his sleigh met two others-one of which was drawn by a spirited single horse, and the other by a pair of gray horses. His (Seymour's) sleigh turned out into the deep snow to let the others pass. A whip was cracked, and they passed.

C. Norman Felt swears to these circumstances, which Seymour,

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who was in the sleigh with the ladies, swears presented themselves, half a mile east of Buck's, and he also swears that he is the person who was in the one-horse sleigh.

I need say no more, gentlemen, in connection with this first line of testimony., The demonstration is complete. The ladies and Felt met east of Buck's. He passed Buck's, and saw Buck after the ladies did. And now to the

Hamblin swears that, a quarter of a mile east of Buck's, he saw Rollin Coman in a cutter, and Zephaniah Jones, the Welshman; and that from nearly the same point in the road and at the same moment, Coman went east toward Morrisville, and the Welshman west toward Cazenovia. Coman swears that he met Felt at the Herrick place, one and a quarter miles east of Buck's; and that he drove all that distance quite slow, as he was constantly hindered by a sleigh drawn

by a pair of bay colts. The Welshman met the ladies only three quarters of a mile west of Buck's. Which then got to Buck's first, the ladies or Felt? Coman and Felt combined, had to travel two and a quarter miles, and the Welshman and the ladies combined, but one and three-quarter miles. Have you a doubt? You will quickly dismiss it, when you add to Felt's and Coman's time, that which they consumed in their conversation with each other. They agree in saying, that their conversation extended from ten to thirty minutes. That it was much much nearer thirty than ten minutes is probable from the following facts.

1st. That they: talked about important matters - about banks, and about the cattle business, in which they were both engaged.

2d. That Felt became much chilled by sitting still so long.

3d. That Coman, although driving fast, after he parted with Felt, did not again come in sight of the slow-moving colts.

Gentlemen, the second line of testimony is now before you; and like the first, it proves that it was after the ladies saw Buck, that Felt saw him. You remember, gentlemen, that in an early part of my argument I had occasion to say: "God be praised for this Welshman!" You see that here is another occasion for saying so - for you see how useful is his part in the line of testimony which I have just gone through with. Again then, do I say, "God be praised for this Welsh

man!" Ought we not to build monuments to his memory for the good service which he has rendered on this important trial to the cause of justice and the cause of mercy? But, gentlemen, we proceed to the third and last line of testimony.

Hamblin swears, that it was, at the most, but twenty-five minutes, (Reed makes it less,) from the time the Welshman started from the point a quarter of a mile east of Buck's to go west toward Cazenovia, before the ladies reached that point. But it must have taken them at least five minutes to wine (a pretty sharp hill in the way) from

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Buck's to that point. So, according to Hamblin, it was but twenty minutes from the time the Welshman left him, ere the ladies reached Buck's. But could Coman, who started east at the same time the Welshman started west, could he and Felt travel, between them, two and a quarter miles, and stop for their long conversation, and all this in twenty minutes? Why, their mere conversation took up the whole of the twenty minutes. Felt could not have reached Buck's until nearly half an hour after the ladies did.

And now, gentlemen of the jury, you have before you the three lines of testimony; and I ask you if they do not constitute in Scripture phrase, "a three-fold cord, that is not quickly broken?" Nay, gentlemen, I ask you if they do not constitute an adamantine chain, not one link of which can be severed? As well try to overturn the everlasting hills, as to overturn these solid and immovable structures of truth, which the witnesses have built up before you. And yet the Prosecutor had the temerity to make the attempt, as you saw when he called Mr. Donaldson to the stand. I thought I would say nothing to you of Donaldson's testimony, until I had spread out before you the invincible testimony of Felt, and Coman, and Seymour. In adopting this policy, I acted upon good John Newton's rule in carrying on a discussion: "Fill your bushel-measure with wheat, and then the chaff can't get in." I have preoccupied your minds with the pure wheat of. Felt's, and Coman's, and Seymour's testimony, and there is, therefore; no room in them for the chaff of Donaldon's. I call it chaff, not to disparage my friend Donaldson, who is an intelligent, respectable man, but to indicate the insignificant and valueless character of his testimony.

It seems that Donaldson travelled, the day of Buck's death, from Nelson to Morrisville. He has an impression that the man whom he met three quarters of a mile east of Buck's, was Felt. But he confesses that he did not know Felt, and that if he had not seen him here, and in these circumstances, he should not have conjectured that the man was Felt. He says distinctly, that he could not swear it was Felt. Moreover, he does not know what kind of a horse the man drove; nor does he know who owned. or drove the gray horses; nor whether they, stopped after he passed them.

How idle to confront the certain knowledge of Felt, Coman, and Seymour, with the mere conjectures and ignorance of Donaldson ! - the positive testimony of the one with the negative testimony of the other!

But after all, there is no necessary conflict between Donaldson's testimony and that of the other gentlemen. He saw the gray horses just where Felt and Seymour saw them; and if for any reason the gray horses stopped there a few minutes, then is there perfect harmony between the testimony of the two parties. Gentlemen, the gray horses did so stop. There is a man in this room, not behind any other in integrity, who only a few moments before I rose to address you, informed me that he saw them so stop, and was ready to make oath to it.

Gentlemen of the jury, the Counsel for the People saw that the

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testimony of Felt sad Coman, in establishing the fact that Buck was seen alive after,the ladies saw him, had broken the back of the prosecution, and virtually ended the case. What, in these circumstances, should he do? He hated to drop the case. Hence he resolved on undertaking to impeach the testimony of our witnesses. So far as he attempted to impeach their memory, I do not complain. So far as he attempted to impeach their veracity, I do complain. To assail the truthfulness of such respectable men as Felt and Coman, is to strike a blow at the social fabric itself; for it is to strike a blow at the mutual confidence on which that fabric rests. To deny in the Temple of Justice the claims of such men to credence, is to weaken its moral pillars, which are infinitely mightier and more essential than its marble pillars. Gentlemen, when the time shall have come to distrust the testimony of such men as Felt and Coman, then will the time have come to lock up your Court-houses, and throw away the keys.

And what did the Counsel for the People make out against Coman? Nothing but that he had assumed that H. Dewey kept the tavern where "H. Dewey" was on the sign. This assumption was certainly neither very strange nor very criminal.

And what did he make out against Felt? Nothing but that whilst he especially noticed not any thing else for several miles, he did especially notice Buck and another man standing a few rods from him. And is it strange that he did? Mr. Buck, with his great age, and with his long hair falling down upon his shoulders, was a man of extraordinary appearance, and especially noticeable. The other man he looked at to see if he were not the same, one he had met there a few month before and talked with about mules.

I wonder not a little, that the Counsel for the People did not undertake to cheapen the testimony of my excellent friend Seymour also. It would, indeed, have been a fruitless endeavor. Nevertheless, consistency required him to put it forth. For lucid and beautiful as was his testimony, and high as he stands in the public esteem, still he is not to be believed, if such men as Felt and Coman are not to be believed.

Gentlemen of the jury, why need I proceed any farther? I have proved to you beyond all possible controversy, that Buck was seen alive after the time when, upon the former trial, the Counsel for the People insisted that he was killed. And here let me acknowledge the merciful and remarkable providence which has enabled me to prove this important fact. As you are aware, I had, from the first, believed the prisoner to be innocent. Hence was I encouraged and prompted to go about as I have done, days and nights almost without number, hunting for trains of evidence that would prove even to the most skeptical, his entire innocence. It was in one of these hunts, that I found a clue to the fact, that Norman Felt saw Buck alive after the suspicious and imposing spectacle witnessed by the ladies. Never can I cease - never can the prisoner cease to be grateful for the providence which led to the discovery of this fact. But it was not in this instance only that the Divine protection has been strikingly vouch-

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safed to the prisoner. Never can I cease - never can the prisoner cease to be grateful for the discovery of the fact, that a traveller living seventy miles from here had, the afternoon before Buck's death, used with his bleeding fingers the very ax in question on this trial. And what a mercy of Heaven, that Hamblin's testimony, which subjected the prisoner to the suspicion of being a lurking murderer, should be promptly neutralized by the good Welshman, who swore that he saw the prisoner standing in full view by the side of the road not more than fifteen or twenty minutes after the time when he had appeared to hide himself purposely from Hamblin's view.

Gentlemen of the jury, I was asking before this digression, why I need proceed with my argument? The answer is, that I have to, because the Counsel for the People compels me. I have to proceed, because he will not give up. He will not give up whilst he has a "shot in the locker." Though reduced to his stumps, he will still fight. He will come before you with the argument that the other man, whom Felt saw, was the prisoner; and that short as must have been his time for it, he nevertheless killed Mr. Buck. Poor Zecher ! poor Zecher ! are you to be pursued to the very last? and when all legitimate argument against you is exhausted, is its place to be supplied by the most unreasonable fancies and the most cruel suppositions?

I will admit that this other man, whom Felt described as "a farmer-looking man in a frock" was the prisoner. A liberal admission too, is this, considering how many a man in that Welsh community answers to this description. I admit it for the reason that the minute when Felt saw this man, was just about the minute when the prisoner left for his home. I admit it too, because the man whom Felt saw was evidently just going away from Buck's. Felt saw his side, and the side of Buck. Buck was in his door. Felt does not recollect whether with or without his hat. The other man was on the road-side of the gate, standing still. The reasonable supposition is, that he had just left Buck's house; that Buck had followed him to the door, and had spoken or called to him, and that he had turned to answer, just as Felt was passing. Had he, at that moment, been on his way to, instead of from, Buck's house, he would not have been standing, but advancing. And all the more constantly and quickly would he have been advancing, because Buck was so hard of hearing as to make it uncomfortable to converse with him unless near him. Where he stood was more than two rods from where Buck stood.

Yes, gentlemen of the jury, I assume that the Prosecutor will argue that the prisoner killed Buck immediately after Felt saw him. I assume this because he refuses to abandon the prosecution, and because this is the only thing left for him to do toward sustaining it. He must do this or nothing.

But, gentlemen, what time had the prisoner in which to kill Buck, and rob the body, and rob the house? And now we necessarily come to the use of time-pieces.

It must have been nearly or quite noon when the prisoner left Buck's for his houses else he could not, walking slow upon a snow-

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drifted road, have reached Sherman's, two miles, by half-past twelve. The clock there said three quarters past twelve. But it was confessedly ahead of true time. He was at Westcott's, half a mile, some minutes before half-past twelve, by a clock admitted to be too fast. He was at Deacon White's somewhere between twelve and one. As it was quite as late as half-past eleven when the ladies passed Buck's, so it must have been nearly or quite noon, when Felt passed there.

I ask again then, gentlemen, what time had the prisoner in which to do the deeds charged upon him? The time-tables do not spare him five minutes. We will, nevertheless, try to squeeze out fifteen. For the sake of the argument, we will admit that he had fifteen minutes in which to return to the house, and go into the remotest room for the ax, and entice Buck to accompany him to the barn-fifteen minutes in which to do this, and to persuade him after they had reached the barn to take off his cap, which was found to be not at all indented or marred, and to hold still whilst he should kill him - fifteen minutes in which to do all this, and to inflict the death-blow, and then (for the sake of having it appear that an animal had done it) to peel up the scalp, and also to bruise the head in half a dozen to a dozen places. And we will admit too, that he crowded into this fifteen minutes' swift work, the pulling down of the mare's blanket and the loosening of her, and also the taking up of the body and laying it in another part of the barn; and we will admit too, that his lightning speed enabled him to wash his all-bloody ax, within these fifteen minutes, and to carry it back full eleven rods, to the farthest room in the house; and far more than this, and all else, to wash, and dry, and iron by some magic expertness, his all-bloody pantaloons, for nothing less than' this would have given them that "clean and new" appearance at Sherman's. I say, we will try to spare the prisoner fifteen minutes in which to do all this work, that ordinary human powers would have needed hours for. But then if we do spare him the fifteen minutes, how much time will he have left for getting to Sherman's? Not more than twenty minutes.

We have, however, seen but little as yet of the shortness of the prisoner's time for his great work. The house remains to be searched and plundered; and if that should take only ten minutes, it would leave him but ten minutes in which to fly to Sherman's. I say fly, for in that case he would have needed wings to get there by the time he did get there. But we are far, very far, from allowing that ten minutes would suffice for the search and plunder. Ten hours would be needed for it.

You remember that the Prosecutor introduced Mrs. Van Patten to repeat the lies and wonders which the joking, mendacious Jason Mead told in the prisoner's hearing. I presume that some slight blushes of shame tinged his cheek, when he called her to the stand. But he had to call her, or abandon his case; and you know that a lawyer does not like to abandon his case. He had to call her and Rowland Jones, or he could raise no motive for a murder. It would be A MURDER WITHOUT A MOTIVE - A CRIME WITHOUT A CAUSE. Vain would be the magnificent and imposing structure of circumstantial proof, unless he

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could succeed in connecting it with some inducement to the deed. This giant body, which his plastic hand had moulded from his testimony, he would have to see fall a dead carcass, should he fail to vitalize it with a motive to murder. Very far am I from saying, especially in the hearing of the learned jurist who presides on this occasion, that it is always necessary to prove a motive in order to prove a murder. In but too many cases the deed itself proves the motive. If I take up a gun and deliberately kill my fellow man, there need be no going aside from the deed to prove the murderous intent. But in the present case it is just because the Prosecutor feels his proofs of the killing of Buck by the prisoner to be so exceedingly slight, that he struggles so hard and summons such strange help to conjure up a motive.

The Prosecutor proved by Mrs. Van Patten that the joking and mendacious Jason had, a few days before Buck's death, spoken, in the presence of the prisoner, of the immense treasures in Buck's house. To use his words, there was money "in every chest, drawer, and trunk in the house;" "a jug full of it in the cellar;" and "money hid in the cellar walls." He also proved that Rowland Jones, the purchaser of Buck's farm, went, a few weeks before Buck's death, to Buck's house, and proposed, in the presence of the prisoners to pay him a large sum of money. You recollect, gentlemen of the jury, that the Prosecutor claimed that his Honor should allow this Rowland Jones' testimony, because he wished to use it in his argument before you to prove that one motive of the prisoner to murder Buck was to get this Rowland Jones' money. You recollect too, gentlemen, that I immediately rose and asked his Honor to allow it, adding that we would see who would use it most effectively in the argument.

It is true that it turned out, on cross-questioning Jones, that he did not propose to pay until 1st April-that is, eighteen days after Bucks death; and that it also turned out, that the prisoner's demeanor on the occasion was wholly unexceptionable. Nevertheless, the Prosecutor would have it believed, that the prisoner (probably from his very imperfect knowledge of our language) gathered from the interview between Buck and Jones, that the whole purchase money, $3200, or a considerable part thereof, would be paid on the day of the interview, or within a few days.

And now, gentlemen, you have the avowed object of the Counsel for the People in bringing Rowland Jones to the stand. It was the same object, beyond all controversy, that prompted him to bring Mrs. Van Patten there. In introducing these witnesses, he took the position, that the prisoner murdered Buck; and that he was prompted to murder him by the expectation of finding vast treasures in his house--money "in every chest, drawer, and trunk," "a jug full of it in the cellar," " money hid in the cellar walls," and the $3200 perhaps under the floor, perhaps under the hearth, perhaps in the jambs. Gentlemen, I hold the Counsel for the People to his position. He shall not be allowed to abandon it. It is a position of his own choosing, and he must take the full consequences of it upon his case. It

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is too late now to amend his pleadings. He sought to make much for his case out ot these two witnesses. The time has now come for him to see that his case must suffer much by them. He introduced these witnesses to save his case. He is now to see that they have ruined it - or rather what little remained of it. I say little, for it was very little indeed that was left, after the testimony of Felt, and Coman, and Seymour.

The Prosecutor must now admit - his introduction of Mrs. Van Patten and Rowland Jones compels him to admit - nay, is of itself such admission - that the prisoner, after killing Buck and making the alleged arrangements in the barn, and returning the ax, began his search in the house, and went to every "chest, drawer, and trunk," and hunted after the "jug," and broke into the cellar walls, and spared no pains to find the $3200.

Now, gentlemen, what would be a reasonable amount of time for all this work? I said ten hours - though twice ten hours would not be too much. No, twice ten hours would not be too much, even though he were armed with shovel, spade, hoe, and pick, and every other implement that could facilitate his discoveries. Shall we, however, say that one hour would be sufficient? But so far are the timetables from having even one hour to spare him, we see that he could have had but twenty minutes in which, after leaving the barn, to get to Sherman's.

Gentlemen, the Prosecutor must see that the prisoner could not have had one hundredth part of the time which his hypothesis requires him to have spent in searching and digging. If, gentlemen, he shall follow me with an argument, and one of you should be playful enough to ask him if he really believes that the prisoner did, on the day of Buck's death, search his house high and low, and dig into his cellar walls; my confused and afflicted friend would be but too like to drop his brief from his hands, and to dart out of the room, cursing the old lady and Rowland Jones as he went, and cursing himself for his folly in bringing them into Court.

Now, gentlemen of the jury, was there ever an instance in which a lawyer put forth a theory that came back to plague him worse? Was there ever a case in which, to use the great poet's words, an engineer was more emphatically "hoist by his own petard"? - more emphatically blown up by his own contrivance?

No, if the prisoner killed Buck, and made all the arrangements in the barn, and all the searches in the house, which the Counsel's hypothesis calls for, and washed his ax and pantaloons; it is evident that he did so on one condition only - the condition that he had the power, and used it too, to make the sun stand still, and also the hands upon the clocks and watches. For it is not possible that he had one day, no nor one hour, no nor half an hour, no, nor a quarter of an hour, in which to do it. But, gentlemen, I do not believe if the sun did stand still to enable Joshua to achieve a victory, that it follows it would stand still to accommodate the prisoner's or any other man's murderous purposes. I believe that the sun kept on his majestic course that day as on other days, "coming out of his chamber as a bridegroom, and rejoicing as a strongman to run a race."

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I do not fail to give credit to the Counsel for great ingenuity in constructing his hypothesis of this case. It is unhappy that the several parts of the hypothesis: do not hang together. They lack, the cement of congruity. That plaguey old woman and that troublesome Rowland Jones are the great marplots of the Counsel's whole plan. They are more than a disturbing, force. They are the explosive force which has blown the whole plan to atoms.

If the Counsel could only have arranged with the prisoner to murder Buck at 8 or 9 o'clock in the evening, then his hypothesis - at least this part of it - would have harmonized with the possibilities of the case. For then the prisoner would have had some eight or ten hours of darkness, in which to do his work of darkness. Then through all the hours of night, and until "ghosts troop home to churchyards," he could have searched and dug for the Mead and Jones money.

What the Counsel for the People will do under the heavy pressure upon him of his great mistake I can not divine. All I can say is, that he may count upon my friendship in his dilemma. Such is my tenderness for his feelings and his fame, that if he will move the Court for leave to withdraw this testimony of the old woman and Rowland Jones, which is so damaging and damning to his cause, I will. second the motion. But even if it could be withdrawn in this wise, or in any other wise, I see not that he would be any better off. He would have escaped Scylla, only to encounter Charybdis. Blot out this testimony, and not a shadow of proof remains, that the slayer of Buck had any motive to slay him. The case is reduced to A MURDER WITHOUT A MOTIVE: A CRIME WITHOUT A CAUSE.

I said, gentlemen, in an early part of my Argument, that the Prosecutor will perhaps argue, that this is one of the cases in which the murderer, horrified by his deed, foregoes his intended plunder, and runs away. But, as I said then, so say I now-that it does not be come him to argue it. For a vital part of his hypothesis is that the murderer in this case was as cool and self-possessed a villain, both before and after the murder, as ever walked the earth.

I surely, gentlemen, need say no more to show that if Buck was murdered, it was not by the prisoner. There is not only not sufficient proof of the prisoner's having killed him, but there is absolutely not one particle of proof of it. The prisoner is the very last man to suspect. Suspect Mr. Kinney, Mr. Brown, Judge Holmes, myself but not the prisoner. For it is proved, that he could not have been thereto murder him; but it is not proved that we could not. He went home before Buck was killed; and it is certain that he did not return to Buck's.

But who then did kill Buck? That is not for the prisoner to show. All he has to do is to resist the attempts to convict himself of the crime. A neighbor might, have. killed him, a traveller might have killed him. But it is not for the prisoner to show who did it.

Let me here say, gentlemen, that after all the careful and patient thought I have bestowed on this subject, I have come to the conclusion, that Buck was killed by an accident. You will be slow to come

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to it. Most persons will be. But I am confident, that in the end, and ere long, the public will settle down in this conclusion. The hastily adopted and soon wide-spread and established belief that he was murdered, it needs time and reflection to overcome. But time and reflection will overcome it.

When the people first saw Buck's body, they all attributed his death to his mare. They did not look at the ax, nor for the ax, until the next day. They took it for granted, that this mare bad killed him. But after a time they concluded that a man had killed him. Why? Simply because the depressed part of the fracture of the skull was shaped more like an ax than a horse's foot. "O most lame and impotent conclusion!" There would have been some reason in the conclusion, had the resemblance to an ax been both in size and shape. But whilst this depressed part of the skull was not as long, it was nearly. or quite three times as wide, as the head of an ax.

I lay down the proposition that, except in the case of those, which are sharp and cutting, you can not tell what instruments have produced given wounds, provided they were not applied with sufficient force and velocity to mark their passage with their own shape and size. In your and my boyhood, gentlemen, we sometimes jumped upon the ice with such force, as to mark our passage through it with the shape and size of our boots. At other times we made fractures, that extended for feet and even rods around us; and no one could have conjectured from either the form or extent of the fractures what produced them. Now, had Buck's head been found with a small round hole through it, we should all know, that it had been perforated with a bullet; we should all be certain, that he had come to his death by a shot. But it was found with a fracture extending over a large part of the whole left side, more than three inches in length of which along the temple, and more than two inches in width of which were depressed some three eighths of an inch. About mid-way and diagonally across the depressed part of the fracture was "a flap of skin;" some half inch wide, and not at all detached at either end. Now, I confess that, looking only at Buck's head, and at none of the circumstances of the case, I can hardly form an opinion as to the means of his death. It is true, that according to Brigham's testimony, the very long unshod hoofs of the mare had grown into strange shapes, as well as into a very hard and horny substance. But I confess that I can see no resemblance between them and the fracture. The "flap of skin" does indeed greatly favor the idea, that the parted hoof of a cow was the instrument of death; but perhaps in no other respect does the wound denote such instrument. And as to an ax, the "flap of skin" utterly forbids my believing, that the wound was made by it. I can say, gentlemen, that I know it was not made by an ax-certainly not by the ax, that was brought into Court - for in the back of that there is not only no gap or notch to correspond with the "flap of skin," but no gap or notch at all. Heaven be praised for this "flap of skin!" What a consoling assurance Mr. Buck's posterity should derive from it, that their ancestor was not murdered! But, gentlemen, is there not, aside from this, abundant evidence that Mr. Buck was not killed

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with an ax? The theory of the Prosecutor is, that he was struck quite a number of blows. But would not every blow from the ax break this very brittle skull? Undoubtedly - and even if the ax had been wielded by arms no stronger than those of a boy but twelve years old. Nevertheless it was only one blow, that fractured the skull.

One of the theories by which I account for Buck's death is, that whilst sitting in his house, the afternoon of the day it occurred, he heard a disturbance in his horse-barn - went there, and found his animals - perhaps mare and all-striving with each other. It is in proof that he had five cows, and that one of them was found in his horse barn at the time his body was found there. In endeavoring to quiet them, the feeble, clumsy old man may have been thrown down and trodden upon, or kicked. Remember again that the skull of so old a man is very brittle. Moreover, cows kick hard, and press the earth very hard when, in their contentions, they run toward or retreat from each other.

The peeling up of the scalp several inches in width, and from the forehead to the back of the head, is as well accounted for by this means as by any other. How absurd to attribute it to an ax!

Another of my theories to account for his death, and this in my esteem is most probably the true one, is, that when the time came the last day of his life - to go to supper at Howard's, he went into his horse-barn for his mare, had a controversy with her, whipped her, stumbled, and fell a few feet east of the door. Perhaps one of his frequent fits came upon him at that momment. Whether it did or not, he held to the halter; the mare trod on his head, and scalped it; or, impatient of her constrained position, she scalped him by stamping on him. The scalping did not reduce him to insensibility; and he still clung to the halter. She became more impatient of the weight upon the halter, jerked him a few feet south, and extricated herself by giving him his death-blow.

It has been attempted to show on this trial, that the mare is feeble because old, and that she is also kind and tractable: But Brigham swore that she is "large" and "smart;" and we have also proved abundantly that she is very balky, and very bad tempered. She is especially given, after being whipped, to striking with her fore feet. You recollect that Blowers saw her, after Buck had whipped her, turn round and strike at the chain around the log, until she succeeded in striking it off. Now why are we not at liberty to suppose, that whipping her in the barn would excite the like ferocity?

On the former trial the Prosecutor scouted the idea of Buck's being killed by his mare; and he ridiculed me for holding that she struck Buck "seven or eight -times, and always above the eyes, and then took him up in her teeth," and laid him where he was found. Now, gentlemen, I am always willing to be ridiculed at my own expense. As you are aware, I am as used to it as the old woman said her eels were to being skinned alive: but, gentlemen, I am not willing to be ridiculed at the expense of others, especially at the expense of this poor brother, who sits before you. I never said, that the mare took up Buck in her teeth! I have explained by what means he was

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removed a few feet. I never said that the mare struck him seven or eight blows. I believe that she struck him only twice; and that his grasp of the halter limited the range of her striking-foot to his head. Two blows will, in my judgment, account for all the wounds and, bruises upon Buck's head. Remember that the horse-barn floor was covered with very hard frozen manure, which presented a very rough and uneven surface. Such a surface would necessarily produce contusions on the back of the head in answer to a blow on the front, and also contusions on the right side of the head in answer to a blow on the left.

But, gentleman of the jury, if the Counsel for the People may ridicule me for foolish things, which I did of say, surely I might, but for my compassion for him,' ridicule him for the foolish things, which he did say. His theory on the former trial was, that the prisoner killed Buck a few feet east of the door, and that then, in order to put the body out of sight, he threw it to the place where it was found. That is, to put the body out of sight, he threw it right in sight! The Counsel did not learn his ludicrous blunder until after the former trial: and oh! how hard he has worked through this trial to save his cause from the disastrous effects of that blunder! He his sought to bring out from his own witnesses, not that the body was put out of view, (as it would have been entirely, had it been thrown to the north side of the door.) No, he did not presume to attempt all that. But he has sought to bring out from them that it was not put very fully into view. True enough, it was not in quite as full view as it might have been, though indeed it did not lack much of it. For the Counsel's own witness, Isaac White, testified that the legs reached half-way across the open door-way; and his own witness Howardd, testified that he saw the person of Buck as soon as he reached the south side of the road. Ledyard Lineklaen swore that the person would have been entirely out of the angle of vision, had it been put on the north side of the door. He swore too, that he believed that a person standing in the road could see the feet, and a part of the legs, and he knew not how much more of Buck's person.

Is it said that the mare's feet would have been bloody, had she killed Buck? But her dark-colored feet were not inspected until she had been ridden hard through the deep scouring snow some mile and a half or two miles. The cows' feet were not examined at all.

Will it again be argued that the specks of blood on several joists near where Buck's body was found, indicate that he was killed with an ax? But all these specks put together would not be equal to two large drops. Moreover, might not an animal's foot, as well as an ax send up these specks of blood? Again, was it fresh blood upon these joists? James Bailey swears that he examined it and found it "old" and "floury;" to use his very words. That it was old blood, and found its wah there from the killing of calves, or sheep, or fowls, is very probable. These are by no means the only joists of that barn on which there is blood. Remember that Mr Lincklaen found much more blood on a joist near the north door of the stable; "a spot half as big as my hand," said he. He perceived no difference in the color of the blood.

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I am confirmed in my belief that his mare killed Buck by the fact that she came to Howard's about six o'clock on the evening of his death. Never before had she been known to go there alone. Her being there now, and with her blanket dragging on the snow, indicates that something very unusual had taken place with her - that something had driven her into a very unusual mood. What was it? It was her being whipped by Buck, and her struggle with him, and her angry escape from him. She would have witnessed unmoved the killing of a thousand men by a thousand men. But her controversy with Buck greatly excited her, and accounts for her having ran off to Howard's. That controversy also explains the disordered state of her blanket.

That the mare was not seen until about six o'clock, greatly favors the idea that Buck was not killed until near that hour. I do not forget, gentlemen, that a youth of the name of Owens, was brought forward to swear that he saw her at two o'clock. But to my mind he testified to a fancy, and not to a fact. No such testimony was elicited on the former trial. Never before had I learned that the mare had been seen on that day, between the hours of ten and six. Even Stancliffe, who was riding with Owens at the time Owens says he saw the mare, did not see her. Blowers rode by, say half an hour after, and did not see her. Not half an hour behind Blowers, came William White, who, although he looked into the barn-yard, and over the premises of Buck, saw not the mare. I never heard of Owens before, and I have therefore no right to call in question his integrity. But other witnesses in this trial have had their imaginations played upon; and how far his imagination may have been played upon to influence his testimony and to bring him to his conclusions, you, gentlemen, can judge as well as I. Let me here say, however, that, so far as my argument is concerned, I had quite as soon you would believe as disbelieve the witness Owens. He saw the mare feeding quietly with the dews; in the-barn-yard. Nothing had excited her. Nothing unusual had occurred to her. The cow in the horse-barn that Buck was fattening, had probably unhooked the door, if indeed it were hooked, and had gone out followed by the mare. But where was the mare, that not Blowers, nor White, nor any other person but Owens saw

her? Where else but in the horse-barn again? She was out for a few minutes at the time Owens saw her; and then she had been returned to the horse-barn. Who returned her? Who but Buck him

self? Thus making it, that as late as two to three o'clock, Buck was yet alive. And then who but Buck had thrown out the hay, that the mare and cows were feeding on? Thanks, then, for Owen's testimony! Better for my argument that it be true, than false.

An hour ago or more, I said that Buck was probably not killed until five to six o'clock. Since then, I have sought to convince you that he was killed about that time by his mare. I will now proceed to argue that whether he was killed by his mare or his cow, or by a man, he was not killed until about that time. He may have been killed by a man. That possibility it is not for me to deny. But whether killed by man, or mare, or cow, it was not until near or quite six o'clock.

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I know it will be argued that Buck was not seen from twelve to six. But what, of that? Was he missed in all that time? Did any one go to his barns, and not find him? No Did any one go to his house, and not find him? No.

Buck must have been killed before noon, if killed by the prisoner. But surely the rigidity which follows death would have been complete in seven hours; and surely, too, seven hours of that "very cold day," to use the precise words of the Prosecutor's witness Howard, would have been sufficient to freeze the person entirely stiff. But how idle, how absurd is it to say, in the face of the testimony, that either the rigidity or the freezing in this ease was complete! Rigidity had in deed begun; but freezing had scarcely begun. To justify what I have here said, I will quote from; two of the Prosecutor's own witnesses, and from no others. Hamblin says: "The arm was not perfectly limber" - "it bent at the shoulder."Isaac White says: " The body sagged, dropped, bent at the hips." Now, will any one pretend to say, that there was no greater degree of rigidity the next day, when, to prepare the person for the coffin, it was necessary to cut off the clothes? and when, as N. T. Palmer swore, "it raised up stiff from head to foot, and I observed no bending ?"

It is undoubtedly true, as Judge Shankland said in his charge on the former trial, that the arms retained much the same position which they had when the person was discovered. But this only proves that rigidity had begun; and not at all that it was perfected.

I have argued, from its only partial stiffness, that Buck could not have been dead seven hours when his body was first taken hold of. He probably had not been dead more than one hour.

I will now proceed to argue from the condition and appearance of the blood, that he had, not been dead seven hours, no nor more than one. And here again I will quote none other than the words of the Prosecutor's own witnesses. Hamblin says: "The blood on his hair did not look perfectly dry; it had the appearance of clotted blood. It was dry on his face." Morse says: "The blood on his face was dry; on his hair it appeared moist. Near the wound, (meaning the deadly wound,) moist, damp - different from blood on his cheek - darker - I thought it was not dry." Who can doubt from these descriptions, that when the body of Buck was first examined, blood had just been oozing, and perhaps was still oozing, from his wounds ?

I much regret that Isaac White and Howard did not testify on this trial, as they are recorded to have testified upon the examination of the prisoner before Mr. Kern, the justice of the peace. When Mr. White came to the stand and presented his tall dignified noble form, and fine intelligent face, I whispered to my friend Goodwin, one of the Counsel for the People: "That man was born to be a prince!" But ere my prince had get through testifying, I found he was as frail as other men. He confessed, as soon as we began to cross-question him, that his recollections were not as fresh as immediately after Buck's death; and yet, as soon as we came to remind him, that his testimony at the time of the examination differed widely from his present testimony, his indignation, not to say his anger, kindled; and he re-

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pudiated his past recollections and past testimony, and clung to his present recollections and present testimony. Oh! how different a course did reason and humanity call for! Instead of falsifying the record, he should have been thankful for, its preservation. Instead of impeaching Mr. Kern, he should have pronounced a God's blessing upon him. Especially and infinitely glad should he have been to give up his present for his past recollections, when he saw that his present recollections were making against, and that his past recollections would make for his poor brother, who sat before him. Mr. White is an earnest religionist. Alas, when will men learn that the truest religion is that, which is the most true to reason, and the most true to the human brotherhood!

Upon the examination Mr. Howard spoke repeatedly of "pools of blood" in the stable, thus showing how recently the blood had been shed. And Mr. White also spoke of "pools of blood," and a large quantity of it. He said too: "When I first saw the wound on the temple, I did not know but it might be from the kick of a horse. I then examined the horse's feet." He also said: " I took hold of one of his limbs, and it was not very rigid."

And now, gentlemen of the jury, I will state my last reason for believing, that Buck had been dead but a short time-but an hour when his person was first examined; and let him gainsay this reason who can. Remember the fresh and moist appearance of the blood upon the hair, as testified to, by Hamblin and Morse. Remember, too, that Buck wore a great deal of hair, and that, it fell down upon his shoulders. Now, what if that bloody hair had lain upon the snow, and ice, and manure seven hours - would it not have been frozen down so hard that the raising up of the body must have torn it out? - and yet, gentlemen, not a hair of his head was found where he had lain; and not a particle of ice or frost was seen upon his hair, whilst he lay there !

I have now, gentlemen of the jury, given you my reasons for believing that Buck was killed by an animal. Of course, I can not be absolutely certain that he was. I again admit that he may have been killed by a man, though it could not have been by the prisoner. Bear in mind, too, that he may not have been killed by his mare, or by his cow, and still have been killed by an accident. We must not fail to remember that, in the wide compass of probabilities and possibilities, he may have been killed in one of many ways, and yet not by a man. We must remember that there are ten thousand ways in the limitless range of Providence, in which he may have been killed, and yet with out human agency. Should it be revealed to us, this moment, by an angel from heaven, how Buck was killed, we might all be astonished, for it might turn out that he was killed in a way, that no man, or woman, or child ever thought of, or dreamed of; and in a way, too, that attaches no blame to any human being.

Gentlemen of the jury, I have done with the testimony. I have summed up the case. And now, if you view the testimony as I do, there are, at least, two things, which greatly surprise you. In the first place, you are greatly surprised, that so confident a report should

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have gone out that Buck was murdered. For, in the light of the testimony, there is no probability that he was murdered; and there is a strong probability that he was killed by one of his own animals. I know not, gentlemen, what you may think of what I am about to say. Nevertheless I do not hesitate to say, that, were I a juror, I would conclude that Buck was killed by an animal, even though the testimony to that end were not half as strong as it is. Every particle of testimony to that end I would magnify. Not one particle of it would I disparage. We owe it to the honor of human nature, and to the claims of charity, and mercy, and reason also, to resist, as far as we honestly can, the belief that Buck was killed by a man. Is there any probability - nay, I had. almost said, is there any possibility that he was killed by an animal then, for the honor of human nature, and out of respect to the claims of charity and mercy, ay, and reason also, we are to, conclude that he was not killed by a man.

I repeat, that I firmly believe, that no human hand had a part in the death of Buck. Yes, gentlemen, it is my great privilege to rejoice in the conclusion, that this aged man, whom I had known from my early childhood, went into the eternal world with no accusation upon his lips, that a brother had slain him.

I said, gentlemen, that if you view the testimony as I do, there are, at least, two things, that greatly surprise you. One of these two things I have just mentioned. It is, that so confident a report went out that Buck was murdered. The other is, that so confident a report went out, that it was the prisoner, who murdered him. For you now see that if Buck was murdered, it was certainly not by the prisoner.

Whence sprang the suspicion that the prisoner murdered him? Solely from the fact of his having been at Buck's for one hour in the forenoon of the day, that Buck was killed. The suspicion, once started, it could, of course, find things enough to feed on. It could feed on the wrong answer, which the prisoner gave to Sherman's question, and it could torture that innocent mistake into a willful falsehood - into a lie. Above all, it could grow and fatten on the old ragged coat, and transmute its stains and dirt into Buck's blood. But, gentlemen, you see nothing in the blunder of his German tongue at Sherman's, and nothing in the tattered coat, that makes at all against the prisoner. All that remains on which to convict him, is his having been at Buck's for that one hour. But would you convict him for that? Oh ! no. Nor would you even had he been there all the day. It was his business to be at Buck's. He was laboring for him. Only the day before he was there from morning until near night.

No, gentlemen, you will not convict the prisoner because he was so unfortunate as to be at Buck's that hour. Dearly enough already has the poor fellow suffered for it! Owing to that misfortune, he has been shut up in jail nine months; and denied his usual means and facilities for getting a subsistence for his wife and child. It is not strictly true, that he was shut, up all this time. The sheriff saw that his health, especially after the shock it suffered from the disagreement of the jury on the former trial, absolutely demanded indulgence, and to the honor of the sheriff the prisoner was suffered to go freely about

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the house and yard. If the sheriff is to be blamed for showing this mercy, let me share in the blame, for I begged the mercy, which he was so willing to grant. Well might he and his family repose such unbounded confidence in the prisoner. For one reason especially might they do so. So great is the prisoner's love of his wife and child, that even if he were disposed to run away from the gallows, he would never consent to run away from them. When I first became acquainted with him, I told him solemnly that he must not run away. "What!" exclaimed he, "I run away from my wife and child!" Let me here say that all, who get well acquainted with the prisoner, love him and confide in him.

I repeat, there is no reason whatever to suspect the prisoner of murder. But what if there were room for a slight suspicion to attach to him! You would not then convict him. No, nor would you convict him, even if there were room for a strong suspicion to attach to him. You well know that a jury has no right to convict on mere suspicions, however strong the suspicions may be. There must be a positive, clear, well-settled, undoubting belief of guilt, in order to justify conviction. I say undoubting, for if the juror has so much as one reasonable doubt of the guilt of the accused, he is bound to pronounce him innocent .The distinction between suspicion and belief, can not be too strenuously urged on such an occasion as this. It is true that suspicion serves the valuable purpose of starting one on the road to belief. Nevertheless suspicion, however strong, is not belief.

I said that the suspicion against the prisoner, which sprung from his being at Buck's for an hour, soon found much to feed on. On nothing however did it feed and grow more than on the fact that the prisoner is a foreigner. A foreigner, from his strange manners and unintelligible language, is but too often regarded as a dark and mysterious being, who is capable of any and all plots against property and life. Nevertheless foreigners have hearts as well as we. Poor Zecher has a heart, and it is a heart that loves his wife and child. It is a heart, that bleeds under a sense of the disgrace done to himself, and wife, and child, and parents, by his being imprisoned under this terrible accusation., His aged and afflicted parents reside in Germany. With what intense interest must they await the news of your verdict I said, that poor Zecher has a heart. We can best reveal our hearts in our own language. The prisoner has written many letters to me in the German language, and he has also spoken mnay [sic] words to me in it; and although my knowledge of that language is small, it has nevertheless helped me get access to his heart - to his heart of childlike simplicity and innocence.

I have referred to the prejudice which exists against the prisoner because he is a foreigner. I do not, however, fear that you will let it enter into your hearts. As one proof of this prejudice - the story got into wide circulation, that the prisoner was a pauper and a criminal; and as such, was sent to America at his country's expense. This paper which I hold in my hand, and which the prisoner brought from Germany, was quoted to justify the story. But when I came to translate it, I found it to be nothing more nor less than an ordinary pass-

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port-such as the authorities of Continental Europe furnish all kinds of travellers with, or rather all kinds of unsuspected and respectable travellers with.

Gentlemen of the jury, my plea is well-nigh ended. You will bear me witness, that it has been a plain, simple, straightforward plea. If I have these powers of oratory, which the Prosecutor so flatteringly attributed to me on the former trial, you need not be told that I have not studied to employ them on this occasion. I have set things before you just as they lie in my own mind; and if I, erred in any thing, it was simply because I knew no better.

From first to last, gentlemen, this case has been one of deep interest to my heart, and of great instruction to my understanding. It has taught me a new lesson in human nature. I could not before have believed, that a whol community, and one so intelligent, and sober, and staid, could have been suddently carried away by appeals to prejudice and to the imagination. Yes, even our men of best hearts and of most vigorous and cultivated understandings, were conquered by these appeals. I speak within bounds, when I say that forty-nine fiftieths of the people of this neighborhood believed the prisoner to be guilty, when he was committed to jail. They heard he was a foreigner; they heard of the bloddy ax; and of the cutting off of the bloody skirts. That was enough. They needed to hear no more to assure them of his guilt. And even after the former trial, there were not a very few left, in whose bosoms lingered the suspicion of his guilt. Their prejudices were not yet entirely subdued. Their imaginations were not yet restored to an entirely healthy tone. But now, who is there, that has heard the testimony to show the innocence of the prisoner has been immeasurably stronger on this trial than on the former. Nevertheless, I must insist that had men, even on the former trial, held their imagination in check, and kept themselves free from prejudice, they could not have believed the prisoner to be guilty. The free play of their reason would have saved them from a belief so unreasonable-not to say so absurd.

Was there ever before in any Court a case made up, so wholly as this is, of imagination and, prejudice? Indeed, gentlemen, I have sometimes though that the history of this case would furnish the materials for a very valuable school-book. Where could our children and youth have for their study a more striking or instructive instance of the power of prejudice and of a disordered imagination.

On an occasion like that which led to the arrest and imprisonment of the unfortunate Zecher, nothing is more to be feared than an excited imagination, and especially that form of it, which a French writer (Madame de Stael) very suitably calls a "superstitious imagination." It was only a few days since that I was reading her account of the burning of a town in Italy, and of the entreaties of certain Christian women, that the Jews, who were shut up in one part of it, might be suffered to burn up. She adds, perhaps with excessive charity, that those were wicked women: "Ce n'etaient point de

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mechantes femmes." Their only misfortune was, that they hid superstitious imaginations - "imaginations superstitieuses." Now, gentlemen, Italian Christiansare not the only kind of Christians who are liable to be swayed by a superstitious imagination. Its deluding, not to say malignant, power, has sometimes been known to control American Christians also. Our good orthodox, people are peculiarly liable to be carried away by this superstitious imagination. Let a man be found dead, and an orthodox Christian will not be the last Christian to elongate his face, and roll his eyes, and solemnly exclaim: " Whoso sheddeth man's blood, by man shall his blood be shed." And if we tell him that perhaps the man was not murdered, he replies: "But perhaps he was; and whoso sheddeth man's blood, by man shall his blood be shed." And if we then tell him that some other than the suspected man may be the murderer, he shakes his head, looks wise, turns up the whites of his eyes, and again exclaims: "Whoso sheddeth man's blood, by man shall his blood be shed." He has gospel for hanging some man. He would, it is true, have it the right man. But to verify the Bible, and to appease the claims of his pious soul, there must certainly be some man hung.

After all, it is not so much to be wondered at, that the execution of the prisoner has been so loudly called for. The hanging of a man in a country county, is a rare occurrence; and we are all apt to get hungry for what is rare.

Gentlemen of the jurty, I am to be followed by one who has an acute and rapid mind. It is not too much to say, one of the most acute and rapid minds that I ever encountered. He has, withal, great ingenuity, strong will, unyielding perseverance, and remarkable force of speech. What he will say to you I can not certainly tell, for I can not certainly tell, how far he may or may not vary the positions which he took on the former trial. I thought that he ought not, upon that trial, to. ask the jury to convict the prisoner, but he did. It seems impossible that he should do so on this trial, after all the new and decisive testimony in favor of the prisoner. But in my judgment, he will not do his whole duty if he but forbears to ask you to. convict the prisoner. It is not enough for him simply to leave this matter to your judgment, and to withhold from you his own clear conviction that the prisoner has not been proved to be guilty. I know that, as a man he would be glad to have you acquit the prisoner. Why then should not say so as a lawyer? Why should we ever sink

the man in the lawyer? Why should we ever refuse to let our manhood assert its claims? The glory of a man is not in his lawyerhood, nor doctorhood, nor priesthood, nor in any other of his professions or occupations; it is in his simple manhood.

I know that many layers are in the bad habit of defending their cases, even when there is nothing left to defend - like the village schoolmaster, of whom Goldsmith says:

But I trust that the Counsel for the People will show not only that he is not himself in this bad habit, but that he dares to set a noble exam-

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ple on the present occasion, which will rebuke those lawyers who are in it.

There is one favor which I must ask at the Counsel's hands. On the former trial he likened the present case to that of Lewis Wilber, who was hung in this county, some eighteen years ago. Wilber was one of the very worst of men. His murder of poor Barber was cold-blooded, atrocious, diabolical to the last degree. Hence, to liken a man to Lewis Wilber, or his case to Lewis Wilber's case, is to take the most effectual means to arouse prejudice, and get up the

"mad dog cry" against him. The Counsel, in his zeal and haste, said that the testimony against Wilber was not so strong as is the testimony against the prisoner. Hence if Wilber deserved to be hung, much more does the prisoner deserve to be hung. Now, I beg that the Counsel will not, on this trial, compare this case with the Wilber case. I beg that he will not repeat that deep and cruel injury to my innocent client.

What 'similarity is there in the two cases? There is the widest dissimilarity between them.

1st. It was apparent from Barber's wounds that he was killed by human agency. Stabbed to the vitals was he several times; and stones were piled upon him. But no one can tell from Buck's wounds by what means he was killed.

2. Wilber left the country, and turned up in Ohio under the feigned name of Lewis Lee - the name which he bore when he was arrested. But Zecher went home; betrayed no discomposure; set about mending his coat; wrote a letter to his father; and went to his bed as usual. There was he found when the officers came for him.

3d. Wilber's whole character was infamous to the last degree. But the prisoner's character is spotless.

4th. Wilber could not converse five minutes respecting his connection with the murder of Barber, without crossing himself and revealing his guilt. But the prisoner is never known to contradict himself; he is never caught in his words; and such is his unflinching adherence to truth, that, were all the inquisitions of earth to try to wring a lie from him, they would torture him in vain.

Said I not right then, gentlemen, that there is the widest dissimilarity between this case and the Wilber case? And, gentlemen, do I ask what is at all unreasonable, when I ask the Prosecutor to show so much justice and so much compassion to this my poor brother and his poor brother, as to admit to you that the present case and the Wilber case are not only not similar, but are in all essential respects, dissimilar! God forbid, that on the great day of judgment to which we are all hastening, and when we shall all be gathered in that great court of eternity, compared with which this and all earthly courts are insignificant - God forbid, I say, that on that day, and in that court, the Prosecutor shall have to remember that he refused this measure of justice and compassion, which I ask for my deeply, cruelly wronged client.

Gentlemen of the jury, I have done. With all my heart do I rejoice, that you will find it so entirely easy, in view of the testimony,

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to acquit the prisoner. I beseech you, gentlemen, not only to acquit him, but to acquit him promptly. I would, indeed, that you might acquit him, without leaving your seats: - for the more prompt his acquittal, the more will he be freed from suspicion, and the more entirely the disgrace, which has been brought upon him, his wife, and child, and parents, be wiped out. Yes, the shorter your deliberations, and the sooner you say "Not guilty," the better will be the new start in life, which you will give him. Make that start, gentlemen, the best you run. Others will do their duty to him, as soon as you have done yours. I know those, who are impatient: to take this unfortunate brother by the hand, as soon as you have acquitted him, and to help him onward and upward to that position of respectability, which his virtues entitle him to. Yes, gentlemen, they stand ready to discharge their duty to the prisoner. But it is not in their power to do as much for him as you can. No other men have it in their power to do as much as you can. For nothing can avail as much for him, as the most emphatic and influential testimony in behalf of his innocence: and it is the speedy rendering of your verdict, that would be such testimony. Prove yourselves thus, gentlemen, the greatest possible benefactors of the prisoner: and sure may you then feel, that the Great and Good Being, who loves the protectors and -helpers of the innocent, will bless you for your benefaction, and regard you for your prompt and righteous verdict.

D. J. MITCHELL, District Attorney, then addressed the Jury as follows.

May it please the Court:

Gentlemen of the Jury:

IT now behooves me to perform the most responsible duty with which I have ever been charged. That duty, fully, faithfully, and without the least hesitation, I shall endeavor to meet. As the Public Prosecutor of your county, I shall to-day, in the presence of this honorable Court, lay before you both the law and the evidence which appertain to this cause. I need not speak of the importance of this trial, for that you have long since well considered, and I doubt not, are now willing faithfully to execute those laws, upon a prompt and judicious execution of which, by all those who have them in charge, depends the safety of every person within the borders of our common country.

The duty you have this day to discharge is one, not only of vast importance to the prisoner, but to the people. On the one side you are to protect the rights of the accuse, to guard his interests with a watchful eye, and see to it that no injustice is done, him, that no virdict [sic] is rendered against him, unless that verdict be fully sustained by the evidence before you. On the other side lies the interest of the people. Their rights you will guard with equal solicitude, and see to it that the prisoner, if guilty of the crime wherewith he stands

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charged by the Grand Jury of the county, does not escape from that punishment with which the law visits the guilty, while the innocent have naught to fear.

This is the temple of justice, and in it no verdict should be delivered unless found in accordance with the law and the testimony, and I greatly err, gentlemen, if this day we shall be compelled to listen to a verdict, which shall be an invasion upon the sacredness of the time and the place.

Long ere this you beheld the safeguard which the law throws around the prisoner in a case like the present. You have seen that it allows him well nigh to select his own jury. By giving him twenty peremptory challenges, it is within his power to send away from the jury-box whomsoever he chooses, and to put there whomsoever he may desire. Did you not see with what freedom the learned gentleman upon the opposite side used this great advantage thus given him? By the liberal exercise of this right, many honest and upright jurors were thus challenged and set aside. Indeed the counsel for the defense has selected just such a jury as pleased him. The people have no such privilege granted to them. We were not and are not by law allowed any such prerogative. We have no peremptory challenges; we must be content to lay our evidence before a jury drawn under the humane statute to which I have just referred; and this, gentlemen, we have cheerfully done, implicitly relying upon your intelligence and your integrity.

The prisoner is possessed of a better fortune than falls to the lot of most men who are arraigned at this bar. It has been his to have the services of, and be defended by, the honorable gentleman who has just addressed you; a man of great influence and incomparable logistic power, whose reputation as an orator and advocate is coëxtensive with the country in which he lives. In behalf of his client, he spared no time, no expense, no exertion. I was much interested and I doubt not you were - in the delivery of the very able and eloquent argument which he has just concluded.

With great pleasure I noticed that you gave to it that careful attention which it becomes you as a jury to give to all that can be said in favor of any person arraigned for, and charged with, being guilty of crime. In this, I say, I was well pleased, for it is my desire that the jury should carefully listen to and well consider every argument which is in the power of even the learned counsel himself to urge in behalf of this man.

Moreover, gentlemen, I ask, and doubt not I shall receive, the same candid hearing and attention at your hands, while I present the views the people entertain, of this case. And in the presentation of those views, I hope to be governed by the testimony. I shall not travel out of and beyond the evidence, as the learned counsel has done. You must have observed, that he himself became a witness while speaking to you; that he testified what he had seen and what he had heard, from the beginning to the end of his argument.

Out of respect for the gentleman, I neglected to interrupt him, but allowed him to go on acting the part of witness without oath, and that

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of counsel addressing the jury, both at the same time. But you will allow me to say; that it becomes your duty to throw entirely out of view and in no manner entertain any statements made by the counsel which have not been proved by the witnesses examined upon the stand.

As Counsel for the People, I shall stand solely upon the evidence elicited during the long and tedious trial through which we have passed. I shall cautiously and minutely examine the ground taken by the other side, and I doubt not I shall be able to show that many of the positions assumed by the counsel are unwarrantable, extravagant, and fallacious in the extreme.

The gentleman has thought it proper to refer to the former trial of this case, and to claim that seven of that jury were for the acquittal of the defendant; with this you have nothing to do, and the counsel had not the least right to make reference thereto. But as the gentleman has thus referred to the former jury, I will content saying that my understanding of the position of that jury is far different from that stated by the counsel.

You must have observed the manner with which the gentleman has been pleased to speak of the People's Counsel throughout his entire argument. How often, how exultingly it has been claimed - and you did not fail to discover the useless and abundant repetitions indulged in that the People's Counsel had been trapped and caged by the consummate ingenuity of the defense. When I shall have finished my argument, then it will be a proper time to judge whether the gentleman had any reason thus to exclaim. I am the victim of no such ingeniously constructed stratagem, and I think, I shall find but little difficulty in emerging from all such traps - in which it has been so repeatedly and so vauntingly assumed that I am caught.

And equally easy will be the the task, unless I greatly mistake the force of the evidence, clearly to show the manifest untenableness of the strange, wild, and unsupported positions so boldly taken in the argument just concluded.

I warn you, gentlemen of the jury, from being misled and drawn away from rendering a true verdict in this case by the eloquence of the defendant's counsel, or by relying upon the positive statements of the gentleman unsubstantiated by the testimony. While I have unshaken confidence in his honesty and correctness of purpose, still I verily believe that he is possessed of and has used great art in the conducting of this defense, and that to rely upon his positive assertions and opinions, which have been so freely and so gratuitously showered upon you, would be subversive of the true ends of justice. In his plea the learned counsel informed you; that he pronounced the prisoner innocent before he was made in any way acquainted with the evidence or the facts of the case; and that he based his opinion upon the simple circumstance of the prisoner's having cut off his coat the same day of the commission of the homicide - a fact, which, to my mind, tends to show the guilt rather than the innocence of the accused: and he further states that no evidence can can change this opinion. Would you have your verdict the result of a calm and dispassionate examina-

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tion of each and every point, the which indeed it should be, you will be slow to be influenced by his naked statements and opinion, thus hastily formed as to the prisoner's innocence.

Let us now candidly approach the merits of this trial. The prisoner stands charged in the indictment with having, on the 14th day of March,1856, at the town of Nelson, feloniously taken the life of John Buck.

The discussion of this ease involves two questions:

First, Was John Buck at the time aforesaid murdered, or was he killed by animals?

Second, Did the prisoner murder John Buck?

And first, as to the evidence bearing upon and the positions assumed by the counsel, with reference to the former of the two questions.

The evidence shows that John Buck at the time of his death, and for the last forty years previous hereto, had resided about three miles west of Morrisville on the turnpike leading to Cazenovia; that he was a man about eighty years of age; that he had no family then living with him; that the prisoner moved into Buck's house the 3d of January, 1856, and left there with his family, and went to reside with Myron Meade the 11^th of February; after which time Buck resided alone, except when he staid at his neighbor Howard's, until the time of his death; that for two nights previous he staid at Howard's, and on the morning of the 14^th he ate his breakfast at Howard's in usual health; that between 9 and 10 o'clock, he left Howard's, which was about eighty rods from his house, upon his old mare, to return home; that Hamlin went to Buck's house on business, about 10 o'clock, and remained with him about one hour, and he was then as well as usual. Buck was found dead between five and six o'clock the same day, by Howard, lying upon his back in the horse-barn, with his head to the south, and feet to the north, and his feet came about even with the door which opened to the west into the barn-yard.

Dr. Maybury examined the body, and the wounds upon the head. He testifies that one wound extended backward from the outer corner of the left eye four and a half inches, three quarter of an its deep at the corner of the eye, and one and a half inches wide, and that the skull or bone was fractured three inches long in this wound, and in the centre was two inches wide, terminating to an obtuse angle at both ends, and with a depression of bone in this wound three eighths of an inch. This wound was covered with a gap of skin half of an inch wide, unbroken, and run angular across the wound,

2d. A wound on, the same' side of the head a little above, between the, temporal wound and the top of the head, two inches long and one half wide, which wound run parallel with the first.

3d. A wound four and half inches long, two and a half broad on the top of the head., running l backward from the front of the head,

4th. An angular wound on the beak end left side of the head one and a hal