Argument of William H. Seward, in Defence of Abel F. Fitch and Others, Under an Indictment for Arson by William Henry Seward
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Title:Argument of William H. Seward, in defence of Abel F. Fitch and others, under an indictment for arson, delivered at Detroit, on the 12th, 13th and 15th days of September, 1851. Phonographically reported by T. C. Leland.

Author:Seward, William Henry, 1801-1872.

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Print Source:Argument of William H. Seward, in defence of Abel F.

Fitch and others, under an indictment for arson, delivered at Detroit, on the 12th, 13th and 15th days of September, 1851.

Phonographically reported by T. C. Leland.

Seward, William Henry, 1801-1872.

68 p. 22 1/2 cm.

Auburn,

Derby & Miller,

1851.

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DELIVERED AT DETROIT_ TIE 11TH5 12TH AND 14T1 OF SEPTEMBEB,:185t, P.ONOGRAPIIICALLY REPORTED BY T. C. LELAND. DETROIT: F, B WAY & COMPANY

PUBLISHERS, DAILY TRIBUNE OFFICE. 1851. ~ i i i f

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w I ~iE p r A IL !Ill

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;n~t onfiy as’an important jndicma1 event in the history of \:,ehiga n, hut also) a: etitled to a place amoog the extraordinary State t~ials of 001 country and of our times. Forty and more citizens of this State were accused of a fielony and demanded whpA its :coi’stitution assured them, a trial by jory. _An advocate was 0iniipcns.,xble in suoci a tria. .h~y required me to assume that office, on the ground of neessity. I was an advocate by .pg~-:ioo. For me the law had postponed the question of their gnilt or inn(ocence Ca .alay. one furnish~me with what would have been a sufficient excuse for~ rei~fqs their do,i~ad?.Ho:~m~ime officii eat, ust qaisqiien ciaxilne opus sidig~eat, ira ei poH~s~s’iimmn opi-4wAe,*, -was the instruction given by Cicero. Can the American lawyer find a hottecr . on~e3, or moderivedt from higher authority?~ :,,.,wor Qen.~:ou the origip and progress of this controversy not to excuse the ‘]‘ff”““e ”; t 7 i t,. Fifteen yrears ago, Michigan attempted to stretch a :-:wt’=-c_-7~/~L4 fro1h’hore to shore.’ It’was honorable even to fail in so — ‘-” -;’”’-‘ ~~;i’~*’‘wa buidlr, reaching from Detroit to Kalamazoo, and -lll__..__ -‘__”‘-”:The State conducted it, as ti.e State conducts -,.,t?idfogg, ~‘tk. diess twards the’ people. Necessity obliged tile ‘:Ouue.to give” 7[,,:o~.,.a Co,rporatio’i which speedily extended the road to the -.rf’,at ersmd:;~ i-” 4..to Engines increased equally in hium_ _4m~r~and ad sped,-‘- i~, tji, ~~af e alike useful and important to the J~di.,t an~‘tt.-‘. ~~.. e w-pub’ic gain was atteniled by the usual ‘ eeu th e: corporation’t-l” , routes, titles, prices, stations and pro r take;__’wjre’ntror~ we’rd ~t reuhwhc it passed were l~’ ~

5nu’ a lter’ ~’l~~_~t~s e genrallypoor. Their U’ mae .Puh’:f:’. “:.k!er habitually used as -*. foe -,’-t(te… *o~‘l~~
iti~’” “‘rile ipr0‘0rty, w ere freoquently destr,oy.ed. Th’e’_’-wu”

“cuddled” sn’md’ ”’, - pr pay.~ dai.a ‘the, settler ‘, fieon U

]Afio “.~~ il:ed.fa t,o settle’ th, contested ~ii Ta.‘he. corpora’tio(.

offing. ~[lrI’e~U=’=~.mpf’w:e The saettler regarded this ?} _?ncssion of the righ~t ma~~ on”tlie’kfi’se..y?fwealth and po wer in. .-d te controversy.: i ic_a-.ii” se,,,i] re’etJ~.d~.’d and ultimately several united ?,~. m~~~~~~~~ thin trespasss:1”’ ~ i ]~ t’e tribun~al, but failed for want t:.? i-nge’ Trepss e~t~e~,.] ‘eUb ] diJY’mJackson county. On the -.~pi.of th_19th. of November.i. .i~do~’ a Detroit~ took fire and was reduced to. rama. No one dreamed, or ever w0.llc ha .aofa mcenditary, had not a pub’~ Im~l.-ar the tern t’z’” c-..”’ r to.‘onceived1
the thought of ‘ %

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4 enriching himself by charging the crime emitted here upon persons in Jackson county, obnoxious for trespassses committed there. He secretly gave body and form to that suspicion, and on the 19th of April last it resulted in the alleged disclosure of a long concerted, profoundly contrived and deliberately executed conspiracy by citizens of Leonli for the entire demolition of the rails and strucutres of the Michigan Central Railroad. Thus it is seen that the State,by neglecting to provide for the cohlisequeices of the sudden change of its policy, caused its citizens “to stuible in their ways fiolli thle incilnt paths, to walk iai paths, in a vway not cast Up.” Thlere has been t wild and fearful conflict. On one side uLiibiidle(l, licentious speech, retaliation of private wronLgs lipoli the body litic, by reprisals, ro ickless of ceiditiozn, cx age or and of distinction btetween the offilding ant tile uiltle s; onl the oilh,i a corporate police of mercenary spies, haunting and puisuilng the st-ps op (ill (h x piio (expi, heir suspicion or their malice. Secretly acetisatin(,s were cai eot tCO ili 10,; scriibo nd verified by oaths before magistrates, with the carefullv:tudie and p1)ifouiindly concealed purpose of olbtainin(g, in some way, evidence enoughl to s‘0 ti an icotstioi agrainst citizens of Leoni of some crime or crimes for which they could be tried away fiom Jackson county. When all wvas rnatured, an indictment wvas speedily fouiid against Abel F. Fitch and others for burning tieC iepot at Detroit; another for burning the new depot which had arisen in its place; another for burnin the depot at Niles; a*iother for bui ing’ tile depot at Marshall; another, in the U. S. Court, for mnanufactui] ani passinag cp iiterfeit money, and still another for burning public mails. Civil actionis wvere siinultan(eoulsly brought against the defendants. Bail, in frightful sums was exacted in each of these actions and on every one of these indictments. Able and sympathising friends were ready to become bound; but the wealth of Jackson county could not meet the large demand, and the de fendants, ever since, have been held fast as in a cage of iron. The corporation employed ten lawyers among the most eminent within the State, and assuming the direction of the prosecution and di,fraying a large portion of its expense,has poured forth,thlrough the lips of its witnesses, the compiled volume of secretly gathered accusations. The prisoi,ers have come daily into Court to encounter these accusations and have returned at night to confront pestilential disease in the jail. The press of Michigan received the disclosures as true and proclaimed them to the world. The press throughout the whole country, accepting the disclosures, responded in expressions of horror to what it regarded as evidence of a univer Bal demoralization in Michigan, and demanded immediate punishment of the accused,with a restoration of the earlier and more rigorous penal code of the State.

Meanwhile, death. by removing the lowest and the highest of the alleged offenders, has invested the transaction with the dignity of tragedy.

Reaction has come, and with it di vision of opinion and of sympathy. It is a strife between a corporation and the city of Detroit on the one side, and the county’of Jackson on the other. The question is vehe mently discussed, whether Abel F. Fitch died a felon or a victim of cruel oppression. Op position to the corporation, on whatever grounds, confining itself within legal limits, of course gains strength by mederation.

Corporate wealth cannot long oppress the citizen in such a country and under such a government as this. Your verdict against these de fendants, if it shall appear to be well grounded upon the evidence, will abate a rapidly rising popular commotion; but, if it shall not be so sustained by the evidlence, a people who make the wrongs of each one the common cause of all,will pick strong matter of wrath out of the bloody fingers ends of a successful conspiracy. You have discrimination, can dor and courage. You have need to exercise them all. You cannot escape present cen sure, whether you find the defendants guilty or innocent. But if your verdict be a truth ful one, it will find its vindication in history. Gentlemen, I want a clear understanding of what we are about, of what we are trying.

The clerk has read a description of it from his minutes every morning. Let him read it once more. [Hlere the Clerk read a summary of the indictment.]

There, Gentle men, you see that it is a case of Arson that we are trying; nothing more, nothing differ ent. his certainly is not what the world supposes we are about. The world thinks we are trying a case of conspiracy; but the world has been misled, it is at fault. The clerk shows us, and I h)pe the world will now take notice, that the indictment requires an an answer to these four questions and nothing else: 1. Did the defendants here on trial, personally burn the depot at Detroit, on the 19th of November last in the night time 2. Did George Washington Gay burn it I and then, 3. Did they hire and procure him to burn it?

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4. Did they, after the fire, with guilty knowledge, harbor and maintain Cay? There is no proof, and no claim is made for a verdict, against the defendants on either the’firtor the fourth of these questions; therefore, you have to answer only the second and third questions. I wish I could go at once to the discussion of those two questions; but prudence forbids.

Near a month was spent in receiving evidence of felonies and misdemeanors in Jackson county, out of your jurisdiction and foreign fromi this indict.

ment. I must review that evidence. It was received under a promise that it would prove a conspiracy by the defendants to destroy all the property and structures of the company and so including a design to burn the depot at Detroit. It was in vain that we opposed the offer of that evidence, In vain we said it related to crimes that,even if committed by the defendants,could not be proved against theta under this iindictment-thlat if they burned it, or procured it to be burned, it was no matter whether they conspired to do it or not-that if they neither burned the depot nor procured it to be burned, then they could not be convicted here, even though they had conspired; that, at least the proof of these alleged felonies ought to be rejected until after the existence of such conspiracy should have been established. The Court overruled us,as you must assume rightly, and we must for the present acquiesce. So the proof came, tumbling in, helter skelter, and we must now remove it out of the way. Let us understand clearly what is demanded of the defendants in regard to this portion of the case, We Ire to show you, not that the alleged trespasses were not corn mitted, nor that the alleged meetings were not held, nor that the allegedl menaces were not uttered; but that a l the trespasses, meetings and menaces whiclih hiae bon pr oved do not establish the fact of, conspiracy by the defendants, to destroy a/’ the brol)ortv 0i the Miichigan Central lgi!rs,d nor even to destroy the depot t De tBroit.‘hce i tis -:al} have been demtonstratec, thiis question of conspiracy will cleaily ppe’l to l;e, a:itle is sue and will fall out fio de case. The testinioriv. under tl.; hed, presents: 1. Overt acts; 2. ieetiogs andi coist-._ 0:ions’ S. Metnaces and decla atioi s y de,endntl s. In exa,mining the se se:t of evidence, Wve will poly ti,,i p )riv’-e])lc iz/

-‘ Whatetver does not le ad -I ll t ie conclusion that on pitaV exisce ot e K ie-)e ed; 2. \Whateve,’ looks tr.at way, od yet may easilv be exploa.‘dl *,-I n t h y’tlhsi:‘lfter ent frl-,imi that of copir  y,‘inst als) be rejectd. I. Oseit Acts. I aivi-e thse into to classes 1. Tohose wl)i’?-,,- connited -: persons not nowr idedtifiend and which were attended by cicuste s aich lein plained; “. Those whiel w (ei,e conmmnitted by peisoins clained to be identtiieti,s (defilm, - ants and the circumiistances at-teridirg which are exploaited. 1st. Trespass.

Stones were thrown at the cars on their passage, at a time not sp)eci fied. Alonzo Holies sas “I was confined at hone, They camte in and said t,e cars had been stoned.” Thi is all. The testimony charges nobody with thile assault. The fact is proved by hearsay only, which is no proof at all. 2d. Trespass. A second instance is proved by Levi Carter. This occurred in June, ‘49, fifteen rods east of L-oni. The witness says “that stones were thrown, that lie put on the breaks, that he heard the stones strike the cars, that the passengers screamed, that a lady handed him a stone that had fallen in her lap, that a gentleman was struck in the breast and severely hurt.” This evidence charges nobody; that is it charges everybody and therefore charges nobody. 3rd. Trespass. Proved by the same witness. This occurred also near Leoni village., The witness says “stones were thrown from bushes by eight or ten persons. One stone. I think struck the engine.” And that is all. 4th. Trespass. An assault of the cars by stones proved by John H. Dexter. “I was sitting in my room, The cars came along. I heard glass rattle. I went down and out. I told Filly that stones had been thrown into the parlor. I found Fitch, Filly and Cor win out towards the railroad. The’Price boys’ had been there before I went to bed There was glass on the track next day.” Gentlemen, you know that Fitch, Filly and Corwin all lived hard by. It is true they may have thrown the stones at the cars on that occasion, yet it is equally true that other persons, and not they, may have committed the assault. It is certain that Mr. Dexter did not participate in it, but went out from curi osity. Fitch. Filly and Corwin may have gone out from curiosity also.

The “Price boys” may have remained after the witness went to bed and may have thrown the stones on that occasion; and on the other hand they may have gone home and not have thrown the stones. It is not proved then that all the defendants named threw stones; and if it be inferred that some of them committed that trespass, we cannot distinguish between the guilty and the innocent, and therefore in the judgment of the law all are guiltless.

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Wne~fnerl pisLois wer-e nreui -t tve ca-rs or not.‘I’le w,telesss se m ot wil’ing to rely with cointdiiece upon thel,r own sense-s in that respect, Buit if wek-new all this it would still remain true thiat these thriee mien-are -Pot inentified as defc,.i(!,lants in th,is clanse, that their conversation implied ti0 concert nor agriee,ment with ally) other pers,on to comimit aii assault on that occasion, much~ less any couicei’t o)r ag,reenme!i, to commiriit -tny assaults or depredations elsewhere ano~, on any other-I’lic-n. Thy 1-,ay hive h-eeni handired to,,ether hv n)ievious corj,-,)iracy h ut,,on thre other hand, thiey i-i,t’,a~ve heeni only ae~n talv,tss,,ci’ited. Thils trae,nse-Itiorl thierefore thiuiayo ti0
liglit u-ltie isu(” ef, trie alleged conspiracy. ‘7th. 1 i’rsi)as-3 A,.

assaut upolii tire car-s N;,;tli guns-i -I~rovc,- W I in. Thri’lhi. cc -urredI in j0 u,e “48 He, says the passenge., t~i-aii ways h~~lu ioo ut wNitihoi~t(i(t east of t’ie i a Iat M;Icik o ir f(-i:,r o, five or. more g,uns wer( d, h-io( tll(l f”,e(l” of th p~-e w-il m a till (vitiiS l(((I.O
oth’,r I (l(Uie aii~ \on’ tlhe a Cse Cti ir ii~iii(,-”i kiioa led-, o’C

Oi ICl litn~Wil~ U-i(t -~~~.)0I)’ d [IC~~~~~ t icxle I ~‘O 8t,, A  1, -i jli~I 1ctr au c,.,,~ lI (C 13 ~~~~~ I o I I Ii II. CoO~~~~~~~~~~~~~~~~~~~
wonrIi I?I I )lI y Uie lII~~~~~II 1-‘1 l~Ct’s ci 0 i-.~ a-o jb(1iip- -ina I U-I’ iC~~~~~~~~ i(~~~i C..d i.i~~~~~~~oloisi)i C’,t illp l 030;; (‘.,Ici i “tll(ge(I to I CII 10 *To~~ ~ill Julie I~( d t c t‘3’y(0 1i’ioti ie ~
iesot The tt,i nga tho n ca, c t ~ve take o place west “)fjil ~I I-swshllo h acte o-‘1 i,-4 (,, t I e ( 1t-4 11 i (3I ac o at sas h a-nl’Cl’it o~f tllt viicinity hil whi’cti tire (t1 ILCI,,, ill iec if; 1 1
the it l i iiihasy an~i-vsn that bae i”-,I. i-:v,’ U. nl 1 iton sI. w I cr o,r vllIiitt Nvee,l-tlte cir or heClil ;iars t it ie*-‘ ccCi e” 130
mto ila~ns or)~,,,, v-i v Ii iI (I p toi i-.1~I \u.tlles be ion 1111-I I.

i-( 1.0 1(Itto’(c iii’( I,()fi v1~I (cci~l-i eih ed; t,int we, iisve01ii’

(‘Itit 1(0(OC C-I,) (I)- 111ti oie or inoic o-tV l1 eo~ iI C”I!1 d er co-,~ Wl - (i l-1)101’ ll; I I,hey veero ev -.(00lidenco!ei t’IV Yl-) tCIIn ie lia, tlio,v ve-C0- V~‘itiv l 1 1i I still les~c ti il1 vtoay 10,se of’ buiilil’, tli:- (iep()f,it oiU(‘(r,tny ii,~~ (,n 1 0 1 lc3~ii

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I come next to consider Overt Actz in which defendants are claimed to be identified’ as offenders, and of which the attending circumstances are given or claimed to be gives Of this I notice first, the breaking of a hand car as alleged by the witness Horace Caswell. He states it thus: Filly in May‘49 wanted to borrow a hand car of Miller,? agent of the Company to go to Leoni. Miller refused. Filly said that a hand car should not stay at Michigan Centre, it would be broken every night, Caswell adds that “a hand car was found broken in the morning. Filly,who had gone out before daylight, returned and asked who they laid thebreaking of the hand car to.” I answered “nobody.” Hereplied “never mind; the man who broke it knows who did it, and he probably is the man who lives nearest to it.”

Although I think this witness will be found unworthy of credit, I assume, for arguments’ sake, that this transaction occurred as proved, and I grant also that Filly admitted sufficiently the breaking of the hand car.

Nevertheless it wa an act of peevish, personal retaliation for a present unkindness. It proceeded from that act of unkindness. It had no origin before; certainly not in any combination with any other party. It had an immediate object and end-retaliation for that unkindness. Nobody: advised it beforehand, nobody had any knowledge that it was to be committed, nobodyknew when it was committed nor participated in the trespass; nobody knew of it or aup proved of it afterwards. The act was unjustifiable but Filly alone was responsible for it. He was responsible elsewhere not here; in another way, not in a trial for arson. It is simply absurd to claim that this is evidence of a plot or conspiracy between Filly andl other de?

fendants to burn the depot at Detroit six months afteiwards. 2. An obstruction of the railroad late in‘49 or early in‘50, claimed to be proved by,, Isaac S. Smith. He says the “cars had stopped at the Whlaite Bridge by reason of the obstruction of a mad-sill, as I supposed. I went down with Marsh, Terrill, Earl and Grant.” Terrill and Grant are defendants. The proof does not show that the cars were obstructecby a mnudsill, If that was the case, Terrill and Grant, the only defendants implicated, certainty did not lay the mud-sill on the track. But Smith says farther that, on returning from the railroad, Terrill fell behind, and that he (Smith) saw Terrill putting a-piece of strap rail on the track. Marsh says that Smith pointed out to him the strap iron lying on the track, and he saw Terrill walking away from it. You remember, Gentiemen, that the track of the railroad was strewed with broken pieces of the fiat or strap, rail. It may well be doubted whether Smith did not mistake what Terrill was doing These broken straps lying about the track were l.able to be thrown upon it, by the cars, when passing. Such a piece of iron could not throw the cars off nor impede their mo  tion. But if that were the case, the mischievous act was one of sudden or, at least, immediate impulse. It was Terrill’s own act, and no other person was concerned in it at the time, nor before, nor afterwards, 3. Amos Van Valen and George Knox relate, that on a summer afternoon, when theywere driving their cows near the railroad in the vicinity of Marshall, they saw Dr.

Ebenezer Farnham, one of the defendants who resided at Jackson, 40 miles distant from Marshall, but who was then at that place, walking on the track and swinging a piece of strasp-. iron for the purpose, as they supposed, of knock)ing out the wedges. They deseribed the motion of the Dr.‘s arm in such a manner as to leave no doubt that they mistook his.

cane for an iron bar, and its playful motion for a trespass. However that may have been, the defendant even with an iron bar, under such a motion, could not have displaced a wedge that would not have been shaken out by a passing, engine. 4, The prosecution dwell upon the burning of a culvert east of Filley’s house in June, ‘51, proved by W. P. Stanton. He says that he was at Filley’s, “that Mrs.Filley came im -w and gave the alarm, that the culvert was on fire. Stanton and Fitch went up to see it Stanton proposed to get water and put out the fire. Fitch with his usual smile (for be was always pleasant to me) answered,‘you’ will have to go out of this town to find: anybody to put it out.”’ Fitch’s remark certainly does not show that he or any other per son fired the culvert. It was a suggestion naturally arising from the aggravated state of public feeling in that town, but it proves no previous knowledge nor design on thepart of Fitch, much less of any other defendant. The transaction, however, was one capable of being perverted to the use of the informers, and so it was noted in the diary of Phelps and Lake, to be the subject of admissions or declarations made by the defendants. Lake says that Phelps asked Filley how it was done. Filley replied “we can say the wind blew the rails in the culvert and the engine dropped fire upon them,” but Lake in forms us that Filley said that the culvert was burned one or two days before his conver cation with Filley, that is to say in Feb.‘51, whereas the culvert was burned in June’Son Phelp’s stumbled into the same error. He says “we talked about the culvert that was:. I

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8 burned. Filley said the wind blew the rails into the cumver and the engine set them on fire, and (hamplin said if they lived -there would be more of such accidents.?’ But Phelpe “peaks of the accident as having uccurred while he was gone to Niles in March,‘51, and he locates the burning culvert, not at Michigan Centre in sight of Filley’s house, but at Le6n;i four wiles distant, where it most certainly did not occur. - These contrad’tty admissions or declarations leave the transaction still more harmless than it was without ~them and certainly it is of no value in the present case. 5. A pile of lumber near the storehouse at Michigan Centre took fire during the last summer. John H. Dexter testified that he was in his room up stairs in Filley’s house; that he heard some one come in, as he thought, barefoot, through the house,below, to. wards Filley’s bedroom; that twenty minutes afterwards, be saw the fire; that he called Filley and told him that Grant’s house was on fire; and that Filley and he went out to see, and Filley turnedround arid said “it is-only a board-kiln;- let us go back or some of the railroad spies will see us.”

Wm. H. Hudson testified that he found naked footprints about the board-kiln in the morning and he thou,ght they corresponded to Filley’s foot. Hudson asked Filley if he burned the lumber. Filiey replied- “there shall be no fence made till they settled with me for the land.” Isaac Minkler says that “Fililey spoke of the accident and said the lumber took fire, that he smiled and seemed glad of it, I will not speak of the danger of convicting men upon snt;les and seemi’iis, and upon inferences from indirect admissions; but will grant, for the sake of argument, thai Villey fired the lumber which had been deposited there to build a fence, for The purpose jf obliging the Railroad Company, to pay him for the land to be fenced; and then I say that the act was a secret misde’meanor. It was his own solitary act resulting from his own indiridual’impulse, committed for his own improper nurpose of interest or -ofrevenge, without accomplice, and without consultation or concert with any other defendant, and it therefore excludes all idea of connect;.ionl with ihe alleged conspiracy.

6. Jacob Wolevar describes an atterl)t to obstr’uct the cars near MIichian Centre in September,‘50 I and Corwi went t’, Fitch’s yird and got an old mill iron that was lyw~ r.. We l!tad’ the bar in tho frog or dhe sw-itch.

The cars did not ruin ff. Corwinm i’-aj aning’we wil throw them off and keep them here to-night.” The next morning’itch s:- d “o mu not - _
an,thing fiori’ ni S o i,a fh ey will sus pect me Tale anything else you can Ad bt’”” -:,il iy h(,use.” Cnirwin is a defendant and if this statement is true, this trespass originated’n his own sclitai,ry suggestion lio other defendant was an accomplice. It was enpreneditatell even by Cor’win and, clevar. - tos lr ow ede of it DUs: c’ou’redthen E
morning and no other defendant ever knew it until the transaction –- -et j ui oult. u Ftch’s rebl-tke is <evidently perverted so as to imply a pleasure in such depredations; but evten’s it stands, it effectually disproves concert in the trespass, and that is all that is necessary for the present purpose. 7. An engine, the Rocket, was thrown off at Michigan aC iet’ about t’e 28tli of October last. Shearman says, “I asked Corwin W-hat was the matter. Corwiii answered that Spaulding had-Said to him,‘Well, Bill, youhhave run us off this time,’ and that Corwin added, I’ll learn old Spaulding not to insult me. We threw them off, and mean to give them hell right along for a month. I’ll let old Spauding know. there will be more done for a month to come than there has been for a year past.” The word we is dwelt upon by the prosecution, but who does that “we” mean? Ifany body, it means, besides Corwin, Woliver and Shermnian who are not defendants; that is, for the present purpose it means Corwin alone. The threat is Corwin’s only. The “Hell” threatened im that vocabulary word, so far as it has been explained here meant obstruction of the cars and assailing them with stones or guus in Leoni and its vicinity and comprehended no’more. By no fair implication can it be made .to indicate the destruction of railroad depots at distant places. The threat was passionate; turbulent, malicious, felonious, fiendish if you please, for I do not mean to palliate ‘the misconduet of any of these defendants.

Nevertheless it indicates no preconcert in any crime actually committed, nor certainly any ulterior design to commit greater crimes lsewL.ere, but, only to prosecute similar offences at the same point of conflict. 8. We have next a baffled design to detach some cars from the freight train, near Michigan Centre, in November, 1850, for the purpose of producing a collision between the part detached and the incoming passenger train.

Sherman says, “I went’to Terrill’s store. A freight train came along very slow, Corwin then said,‘Let us cut’em off, -and the next train that comes along will run into the cars’? We went un) to the cars to cut’emoff. The conductor was sitting on the top. Corwin said,‘G-d d-n him, let s nochimoffwitha stone’and looked around but found nostone. rinsaid

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9 Next time we will go down to the old tavern there is plenty of brick there aud we will give thsm hell.” The criminal and inhuman purpose here disclosed was the unconcerted and unp,emeditated thought of the defendant Corwin alone, and therefore the attempt to excite.it in the manner described by the witness furnishes no evidence of the supposed conspiracy.

9. An attempt was madeto displace the rails east of the marsh, at Michigan Centre, September, 1850, according to the statement of Woliver. He says, “Filley asked me to go with him;’ I am going to give’em hell to-night at the east end of the switch. This was an hour after dark. Filley said,‘I must look around and see if any one is coming. He tried to get the switch bar loose but failed. H:e then fixed the bars so that one bar crossed the other, two or three inches. He said he’ guessed that was enough.- We can do no more, and we will go home.” “His design was to iojure the Company all he could, and he’d be damned if he didn’t do it.” Assumning this testimony to be true, this fearful act began with Filley, and ended with him and Woliver only. The explanation which accompanied it, showed that it was some motive of private malice or retaliation that prompted the transaction. No one else advised it; no one else knew of it. It is a transaction which deserves punishment in Jackson County, but it has nothing to do with the case which you are trying here. 10. A lamp was broken in consequence of an obstruction Qof a culvert in 1850..Woli ver says, “we, (Filler and I,) went down west of Fitch’s, and placed a tie in a culvert to break the lamp, and a mud sill across the track, and went back to Filly’s. Next morn ing Fitch told me that he went down to the cars, when they had stopped, and that after the cars got under way, he and Filly got on behind and turned the breakls.” Filly and Woliver alone were engaged in this transaction. We learn from the testimony else. where that Fitch arrived at home after the obstruction had occurred. The story of the breaks is puerile. There is, I believe, only one break at the end of a car One man turns it with ease and effect, when the cars are under a slow motion. The cars had. only begun to move, and were on an ascending grade.

A pressure upon the track through the breaks could do no possible injury.

They could have been used in this case cidv for a petty annioyance. Dear to Abel F. Fitch a1 his vindlicati, tin thi, iast was declaraed by him, in his dying hours, to be, eear s it is to th i com uiy. in whlih he’live alu ever more will be to me,-I am gladthat ths,charge, puerile and pitiable as it is, rests on the authority of Woliver alone. How worthless that authority is, we shall have occasion to : see in the sequel of this argument 11. It is alleged that te a were assailed wvith stones on the occasion of a ball which came off at Leoni, on the 11th of August. The charge rests on the testimony of Woliver Malone. -He says’ “E. J. Price, L. Champlin, Hewitt Davis and I were in the bait-room. Price said,‘The cars are coming; let’s go and stone them.’ We four went. Price and i together, Champlin and Davis further on together. Stones were thrown. I threw none, but I heard the rattling of the stoies against the cars.”

Hewitt Davis says that he attended the ball; thatno such transaction occurred; that he was in the arbor.n which the ball was celebrated, and neither he nor Price nor Champlin left the ball for any such outrage, nor proposed to do any such thing. Ira.W. Kellogg was door-keeper on that oesasion, and he proves that Price, Champliu and Davis did not leave the ball-room, when the cars passed. These witnesses agree that Woliver was in a state of absolute drunk enness in the bar room during the whole night, which rendered him unable to move, and that he iever entered the ball-room at all. This aggression, then, must have been an invention of the witness Woliver. Where a witness is found to have stated a deliberate falsehood in regard to one material fact, the law applies the rule, Falsus in unofalsus in omrnibus, and we are relieved therefore from all obligation to account, in this cause, for any crimes resting upon the evidence of Woliver alone.

12. Woliver described an assault of the cars with stones on another occasion, much in the same manner. He says, ” We were together-the Price boys, Corwin and. Cor-t win said the cars are coming; we will go and give’em hell.’ We threw stones at the cars firom Filly’s orchard. I saw glass along the road the next day.” If the fact of this as sault is to be assumed, then I have to remark only this: that it implicates Price and Cor win-that it was an unpremeditated and unconcerted act, obviously disconnected with all other other outrages which preceded and followed, and it furnishes no evidence in sup port of the pretended conspiracy. 1-3.

Thecars were again assailed with stones, according to Woliver, in September, 1850. He says, “The Prices, Corwins and I were together at Filley’s house. The Prices and Corwin3 proposed to stone the cars”-(Wolevar is always innocent! but he yields I-.1

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10 with wonderful pase se dluctibn.) “We went beyond Fitch’s garden and there threw stones. We heard glass isttle and I found glass there the next day. The transaction is subject to the strictures before made. 14. An engine, the Goliah, was thrown off the track at Leoni. Shearman states that ‘Corwin said when the Goliah was thrown off he went home fearing it hadn’t been done up right, but by morning he found it had been done up brown.” H. H. Bingham says that he was travelling from Michigan Centre to Grass Lake that night; two men passed him in a wagon. One of them spoke to the other about being too late for the cars. He recognized Cerwin’s voice.

He thought the voice of the other was Williams, but feigned.. He reeognized the person of neither.” If it were Williams and he spoke with a feigned voice, then the voice must have been unlike his; so, if the voice was unlike that of Williams, then it furnishes no evidence that Williams was the person who spoke. Williams is not proved to have been present at the throwing off of the Goliah or to have had any connection with it.

Corwin’s action rests on his alleged admission. This, like his other crimes,was his own, and fails to cast any responsibility on the other defendants and equally fails in giving support to the alleged conspiracy 14. One of the most important incidents in this strange and painful history is theburmning of the wood pile at Michigan Centre. Shearman relates it thus, “I was at Jackson. Corwin and Holcomb were at Morrison’s grocery. They told me they had laid a plan to get some flour; that perhaps I might not fall in with them, but if I did not I must keep still We will go to. night and take three barrels of flour from the cars. We willset the wood pile on fire to divert the spies aud take the flour while the fire is burning.” The three then returned to Leoni. Holcomb and Sherman put up Corwin’s horses while he went and examined the cars. “Corwin came back and said it was all right. One of the doors of the cars was half open. E. J.

Price afterwards came up. Price proposed to drink. They drank at Filley’s.

Filley asked me if I was going a fishing. I said yes. Corwia got an axe.

Price said he hadn’t the first damn’d thing to fight with. Filley handed him a ln’and said he hoped they would have good luck and if they should want anything to drink when they came back there was a bottle, and, if that was not enough, they knew where the key was. Corwin, Price anfd Sherman set the wood-pile on fire and were arrested in pursuance of an arrangement preconcerted by Shearman with the agents of the R. R. Co., Sherman added that on their way to Michigan Centre, he asked what they were going to do with the flour Corwin said,as biga man as Fitch is I’d as soon let him know it as not. He will keep me along”with it and out of j”ite2-‘;. I exclude for the present, for an obvious reason, the evidence of Phelps, involving admissions alleged to have been made by Fitch and other defendants, all interested in screening Corwin fromthis crime. That will come up more properly in another part ot the case. Standing then upon the testimony of Sherman alone, it is apparent that this. crime was Corwin s, and his only; that it was conceived by him, for his own felonious gain.

Holcomb and Wells are not defendants. P ice went into it on a suggestion at the moment. There is no reason to suppose that Filly knew Corwin’s purpose, except what is found in the suggestion of Price, that it might be necessary to fght. I-do not know whether fishing at Michigan Centre, in those times when Rail Road spies abounded was supposed to require those who practised it to go armed, though I can well under stand that they may habitually visit a tavern on their way out and on their return. But if Filly’s remark connected him with the transaction, then the crime rests with him, Price and Corwin. It was unconcerted. No other defendant was consulted, nor wasit connected with any other crime before or afterwards.

Corwin’s remark, that he would not be afraid to let Fitch know it, might lead to an unfavorable opinion of Fitch’s integnaty, but nothing more, But it may have been presumptuous on the part of Corwin. It manifestly proves, in the most conclusive manner, that Fitch had no knowledge of the inteuded crime, and therefore places the transaction out the of evidence in support ol the conspiracy. 16. The ” Gazelle” engine was thrown off the track near the dry marsh at Mich. Centre, Aug. 20th, 1850. Wolevar, as usual, was hero and historian. “I was at Price’s haying for Filly. Filly came up and proposed to throw the cars off.” (Of course, he did.} ” We took an iron bar from Penfield’s saw-mill, and an axe from Price’s-Filly, the two Prices and myself. We broke the chairs, moved the track aside, and threw off the western train instead of the eastern. I went back to Price’s. They said no matter how many were killed. Damn you, don’t you say a word about it.” This transaction, then, if Wolevar is to be believed, was suggested by Filly, adopted by the two Prices and Wolevar. and executed by them all within the space of two hours from its suggestion.

Only three …..I ……

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11 defedaaiits **-e engaged in it, and they suddenly, without the participation or knowleJge of the other defendants. It was a desultory crime, and black and terrible as it was, was nevertheless disconnected with any other transactions, whatever their character might be. It not only furnishes no evidence of a conspiracy, but, as explained, repels the idea of ‘h a conspiracy as is alleged ~~. B u Pti such a conspiracy as is alleged. But this transaction of the Gazelle reappears in two other versions. First, there is an attempt to connect the defendant, Willard W.

Champlin, with it. Taylor produces a paper which he says was found sticking out from under some wood in the culvert when the transaction occurred, which is marked, “The Price Boys Warning. i That extraordinary paper is in these words: Michigan Centre, Aug. 19, 1850. Mr. PRicE-Sir-I want you to be at the mild stake, this side Leoni, on Monda night at about half past 9 o’clock. We intend to run the cars somewheare’s about there; be sure and be there at the time. By order of the Committee, W. CHAMPLAIN.

It was permitted to be read, upon the opinion expressed by Holmes that it was in the hand writing of the defendant, Willard W. Champlin, but at a subsequent stage of the trial, Holmes, who appears to be an honest and a truthful witness, came upon the stand and declared that after farther examination of the writing, and comparison of it with other known writings of the defendant, he was of opinion that it was not; that he thought it resembled morethe hand writing of the witness Taylor, who produced it, which he knew well, than it did that of the defendant Champlin. Michael Coy, who knows Willard Chamnplin, declares that it is not his, as indeed it manifestlyis not, since the signature, which is without any affectation or disguise, differs both in style of execution, and in the christian and surnames assumed. I do not press the testimony of James Champlin on that point-he was evidently illiterate and imbecile. The paper, then, in the first place, is not in evidence, being disproved by the same witness those testimony procured it to be admitted. Secondly, it is a forgery,and being such, is pregnant with warning against yielding credit to the tales of venal and prostituetinformers It is needless to remark, that it is to be presumed that Champlin would have been,himself present at the time appointed, if he fad, by order of a committee, or otherwiseesent this notice to the Prices; but Wolevar proves not only that Champlin was not there at all, but that the proposition to throw the cars off was made to the Prices by Fillyas a new one,not on the day before the transaction occurred,but on the same day,and within an hour betore jit. But the throwing off of the Gazelle, in the language of these spies, has furnished a basis to predicate a plot upot, and this has been artfully done by Wescott and Lake. Wescott says, that on the Sunday when Sacrider had his duck pie at Filly’s, he nverheard Williams ask Filly for money, and Filly replied, “I thought the Gazelle matter was settled.” Williams made some reply not heard, whereupon Filly said “Fitch has paid you $12, and I lave paid you 10, and I’ll now give you 3, if that will make it right;” and thereupon Filly, after obtaining from Wescott change for a $$ bill, paid Williams $3. Lake, at a far distant period, procures and offers confirmation by saying that Williams gave him a history of the throwing off of the Gazelle; that he said tlat “Fitch planned it; that Filly, Wolevar and Corwin executed it; that he, Williams, lent them the bar with which to break the chairs and remove the track, and then went to bed so as to be able to swear that the Prices slept all that night with him.‘A word or two will dispose of this joint invention. If Williams earned $25 by going to bed and leaving others to commit the crime, how much were they to be paid who performed the labor and incurred the entire danger? Again, Wolevar, who was of the party, excludes Fitch altogether from a knowledge of it, and excludes him as well as Williams land Corwin from all agency in it, and says that he himself got the crowbar which was used, and that he got it not from Williams, but from Penfield’s mill’, which was impostible, if the history said to have been given by Williams was true. Genlemen, the long discussion which I have bestowed upon this one of many incidents on the history o,f this-pretended conspiracy will not be lost, if it shall serve as a caution in the way of this prosecution has been traced by fraud and cast up by perjury. I come now to one of-the most remarkable portions of this most extraordinary trial that of the alleged delivery of pistols by the deceased defendant Fitch from his bedroom window. Joshua Wells testifies that he and Miner T. Lacock, one of the defend ants “received pistols from Fitch at his bedroom window, in the month of August 1850.”

Thus, “it was just dark, and Fitch after delivering the pistols, went into a shed and there delivered to the witness Caswell a rifle pistol and told them to go downeclose to the

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12 aars at the dry mairsh and to get as near the engineer’s house as they could.” Caswell sked Fitch it the pistols were loaded, and hlie said they were, and told them to shoot light through the engineer’s house, and Caswell said that he afterwards tried with a ram rod the pistol which was given him,‘and found “it loaded. Ca well’tys,,,Fiteh handed me a rifle pistol in the shed.” Lacock and Wells each had a pistol. Fitch wanted us to go out near the marsh and shoot at the engineer. I asked if the pistols were loaded. He said, “ves, with ball.” Deloss J. iHolden says that Fitchi once admitted to him, in speak ing of this transaction, that he gave Wells and Lacock pistols, bnt they were loaded with powder only, to frighten people in the cars or on the engine Elizabeth Hargrave says that Lacock told her, in speaking of the complaint against himself, that they had got pi stols or guns out of Fitch’s window; that Fitch told theni they could shoot, but they did not shoot.” Barnet Culver says that Lacock said, in speaking of some declaratiotis im puted to him, that all he had said was, that Fitch had handed him and two others pistols out of the window and said “shoot’em, damn’em;” but they didn’t shoot. Gentlemen, you will take notice that Wells and Caswell, before coming here to testi f, were taken into employment by the R. R. Co., at salaries, I think, of $15 a month, and that Lacock was taken into their set vice at the same time, but was afterwards discharged by the Company and then charged as a defendant in this indictment. You will take notice of another fact. Caswell says the rifle pistol delivered to him is one which Lacock’hgd be fore borrowed of Moulton. Yo’i will remember also that Fitch had been a Captain of dragoons, and that his pistols anid sword were kept always upon the desk containinlg his papers, resting upon the safe m his bedroom. You will now oppose a gainst the evi. dence given by the prosecution, the fiact that Caswell is not only an accomplice taken into favor and reward by the Comipany, but that he stands’ self-impeached * Fi st by the manner of giving his testimni’. After giving a sucession of em’ploymients that h’e follow ed, changing, so olten as to prove himself littlc. btter than a v’~grat)t he) said’that he went to cutting grubs fir a darky. Being pressed for a. answer wlho the darky was, he replied, “I have ben folin ni,w, I didn’t ctit no grub.” He denied i,at he h’d been charged with arson in the pl 1e. -c e e’t before c,)ining to Michigani Centie, yet he refused to answer whether he had ni t bee e0itj’ d’ ou0,a complaint of arson, upoi the ground that it wol(l subeet him to punishment fr l. I uerstoo te Counsel for the People to disavow a ok;nd,ii K i;. j!- v’dnC

Anson H. Delamater, than houni the st, t,i s s to me to possess no wvortlier citizen, says that Joshua Wells told himn in June tiat, when speakit,g of this charge, that he did not know anything against Fitch, that he had flsed himsell dead a thousaniid tim es be fore he got into thnis Vcrape. .. C,air mt,i -i q?t1ii i eetable man, says that Joshua Wells told him, when speaking of t’Lhe attitude in which he stood as a witness to be exam ined, “unless I had come out for the R. R-. Co., I should now be where they are;” that is, in jail under an indictment for burning the depot. Carmer adds: “I said to him I under stand that Fitch requested you to shoot one of the engineers.” He said it was not so, and he never thought of it. As for Lacock, the declarations imputed to him are sufficient ly contradicted by the fact that refusing to testify for the R.

R. Co. in corroboration of Wells and Caswell, he lost his position in their employment and took his place among the defendants, and “is now where they are-” You are prepared then, I think; td recur with favor to that touching scene in the trial when Amanda Fitch, the adopted daughter of Abel F. Fitch, she of whom he said in the v,ry last words he uttered-“poor dear little Amanda, I had quite forgotten her, remember me to her”-I say you will recall with pleasure the occasion,when that child,of only Jourteenii years, appeared upo,n the stand and gave her account of the transaction of which venal informers have manufaetured a tale so full of horrors. “Mr. Fitch was standing by his desk. Lacock and Wells came to the window which was open. Lacock said. “Fitch, I want to borrow your pistols.” Fitch took them down from the desk, wiped them off, and handed them to him. Lacock said, “Fitch, I want some paper.” Mr. Fitch asked me “to get some paper,”” and then taking up a piece of newspaper lying by his side, he said “there is some,” and handed’ it to Lao cock.

Lacock and Wells withdrew. Mr. Fitch resumed the examinationof his account book, then laid it by, took up his flute, sat ctown in the sitting-room and remained there until a period too late to allow of the occurrence which is alleged to have taken place in the wood shed.” You remember the wotnanlike firmness and sincerity with which this testimony was given. Yon remember how, during nearly half a day, this child baffled the studied arts of the able counsel, in their attempt to entrap her and to involve her in self centradiction. I do not dwell upon the attempt to contradict Amanda Fitch q testilmony of Eu

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13 phemia Coy on a point which was irrelevant and trivial, to wit, the alleged assistance rendered toAmandain preparing her testimony by her mother. That mother has appeared here and hlas been offered to sustain her daughter’s denial of such assistance. Gentlemen, you have - heard Amanda Fitch’s recital confirmed as it is by Delamater and,Carmer, at.d by the scarcely less than martyrdom of Lacock. Weigh it against the testimony of Wells and Caswell, impeached as they stand by self contradictions. Th-ere is perjury on one side or on the other. It is for you to decide wlhether it is on the part of the informers who sustain this prosecution, or on the part of this child. It grew into a proverb in ancient Rome, that iii seasons of public confusion a citizen could not be quietly undone, nor could his family escape from being involved in his ruin. The dlefendant Fiitch has been hurled from ilis estate into his grave. His wife,when she appeared upon the stand a lawful witness to redeem his name from reproiell,hlias been refusel a htaring, because she had become a widow too late. Oomplcte if:ou will and if oni can this domestic desolation, by stamping the brand of perjury upon the brow of that cherished orphan child; but remember, before you do so, that you and I among those various excursions which have relieved the weariness of this protracted trial, once visited together the state prison of Michigan, and that we found there one hundred and fifty malefactors all of whom were men, and that within those dreary walls there was found not one woman. Thus, there are seventeen overt acts attended by circumstantial explanatio ns, to wit: One-Breaking of a hand car by Filley alone, rejected as a trivial, per onal and unpremeditated transaction: One obstruction by a mud-sill, ands by strap iron, charged against the defendant Terrill alone, insufficiently prov ed, and trivial if proved: One like charge against Dr. Farnhtnm, rejected as, both trivial and false: One, burning of a culvert, rejected because’the evidence is insufficient and contradictory: One’bu.ring of a pile of lumber, an act of person. al retaliation by one of the defendants alone: One attempt to obstruct-the cars, by placing a spindle in a switch, in which only one defendant,was concerned: One throwing the engine “Rocket” from the trk -which was Corwin’s individual act: One design by Corwin to detach the freight cars, proceeding from sudden iDpatt,, and not carried into exou,tic::.One obstruction of th e c, wast -of the switch, by Filley and Wolevar, without concert with any 6ther defendants: One braking of a lamp, and obstruction of the ears, by a mud-sill, the act of Filley, without concert with other defendants: One alledged assault of the cars with stones, at the ball at Leoni. actually disproved: Two assaults of alike kind, by the Prices, Corwin and Wolevar. aets’unpremeditated,‘and without concert: One, throwing off the “Goliah,” the act of Corwin alone: One burning of a wood-pile by Corwin and Price, to cover a larcency for the benefit of Corwin alone: One, throwing off of the” Gazelle” by Filley and the Prices, without the knowledge of the other defendants; and the exaggerated pistol scene at Fiteh’s house, disproved and rejected. Among these transactions, Filley is compromised in four distinct cases; Corwin in six, and the two Prices in three. No other defendants were connected with them by actual co-operation, no one case of preconcert by anyv other defenidant with the aggressors has been established, not one instance of guilty knowledge by any of the other defendants has been proved, nor has a case occurred amo!g themn al, of an aggression committed in pursuance of a previous design or plan for ned or projected even by the defendants who committed it. You will readily agree tihat if a conspiracy such as is alledged by the prosecution did exist, WoJevatr, Gaswell aid Sherman were guilty parties in it; yet vou see at once that, althougil yoll could convect them of so many crimes comi, itted, bv their own confession. yon could no, for a momenit uphold an indictment againist them charging a previous eo?,-spiracy to commit the acts which they have confessed. They canones be innocent of such a conspiracy and leave the defendants guilty; the defendants cannot be guilty of a conspiracy if these witnesses are innocent of it. The ovet t act then whicht hlve been given inevidence-neither Iprove,nor tend to prove,the existence of the alleged conspiracy.

Let nie not be misunderstood in regard to them. Not; only do I rejoice that no human life has been lost nor limb broken, but I condemn these outrages as atrocious, cruel and inhuman. i Their only alleviation is that they proceeded from passion, and passion, in individual men dark and stumbling, is blind

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14 er still in masses, where a sense of individual responsibility is lost.

But that consti tutes no justification. I sympathise in no hostility to the Michigan Central Railroad -in no hostility to corporations-in no hostility to wealth. I rejoice in the comple tion of every new link in that chain of internal communication, upon which I rely to bind together the ever-chaiging boundaries of this vast empire. I would indeed hold corporations, as I would private citizens, to the practice of justice and modera tion; but 1 know of no legitimate redress, in a government of laws, but redress by law and by constitutional change of laws. I regret that these aggressions remain unpunished. I trust they will vet be punished, and that the majesty of the law will yet receive its ample vindication.

But it belongs not to you, nor to me to effect that vindication. These aggressions were committed in a foreign jurisdiction. Our pre. sent duty in regard to them is performed, when we have shown that the aggressions which have been committed have no relation to the question under consideration here. The prosecution, Gentlemen, apprised you that, in addition to the overt acts of the defendants, they would give in evidence the fact that numerous, even daily, unlawful meetings were held by them, in which they framed the stupendous conspiracy which is proclaimed to have existed,contrived how and when it should be executed; that in those meetings they agreed upon the aggressions which should be committed, assigning to each defendant his part, and that in those meetings they resolved that if they should fail to bring the company to their terms, by these aggressions, that they then would effect that purpose by the burning of edifices and structures throughout the whole length of the road. The proseeution alleged farther that in these meetings solemn resolutions were adopted to defeat the administration-of justice, by combination, fraud and penrjury; and, finally, that in those same assemblies the defendants severally contributed inventions and horrible machines for the work of desolation and destruction in which they were engaged. This was the promise of the prosecution. Days and ev enweeks were spent in the attempt to fulfil it, and with what re sult:?: I cannot descend into a minute examination of the shapeless mass of evidence laid before you to redeem thiprqmise but I shall call your attention to a few marked and distinct features of it; and upon these I shall challenge contradiction. 1. There was never a concerted nor even an appointed meeting of the defendants, 2.

There was never an unlawful assemblage of the defendants. 3. There never was a meeting or gathering of all the.de fendants, nor of half of them, nor even of a fourth of their numbers. 4. Those who came together at any one time were never the same persons who came together on a previous or on a subsequent time. Whether the number who came together was greater or less, they came together always in the most public places. They came together in the barroom, in the ninepin-alley, in the street, at the post office, in the day time, and in the early hours of the evening. 5. They came together casually,on occasions of sheer broad publicity,on Christmas, at shooting matches, on the arrival of the cars, at balls, at lawsuits.

They came together as accident determined, on their way to or from the mill, from the blacksm ithsho p, from the village store. Their assemblages, such as they were,were open to all com ers, whether village gossips or travelers. There was no tyler at the door. It was wide open.

These modern’forty thieves’ had no’open sesame’ nor’close sesame’to secure themselves against intrusion nor against detection. They were neighbors who came together, sometimes two, sometimes three, four, six, or eight; most frequently in the only village barroom,and the traveler and the laboring man of the villagewhether white or black, whether in the interest of the Railroad Company or against it, ihad free admission. There never was a meeting organized, there never was a resolut on adopted nor a debate opened. Joshua Wells gives you an idea of their conversa on on the one subject of common and engrossing interest. “There was something aid about the Railroad being a monopoly, that a feeling was getting up against the Railroad Company that would hold against them for a long time, because they hired help very cheap and didn’t pay wages enough, that it had a tendency to render wages low. that he heard not much said about cattle being killed.” They planned nothing

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neither the burning of depots nor assaults upon cars with stones and muskets. If they discoursed in threats it was in individual, impulsive, passionate, but idle threats. It was just like what often occurs in every village barroom in the State and in the United States. “They talked by squads and drank by platoons.” To hold such gatherings of citizens to be seditious meetings is a construction forced, false and fraudulent. To present such meetings in a court of justice as evidence of a conspiracy is to conspire against the freedom of the citizen. If then a c6nspiracy has existed in Leoni, the evidence of it is to be derived elsewhere than from overt acts committed or from deliberations of meetings held there. And this brings us to the proof, 3dly, of individual declarations and admissions. In regard to this class of testimony, I am obliged to confess that the difficulty consists not so much in a deficiency as to quantity or perhaps even of directness, as in the absolute unreliability of the testimony itself. The Railroad Company unable to convince the farmers of Jackson county that half price was enough for cattle destroyed, and unable to arrest the depredations which were committed by way of reprisal, resorted to a system of espionage. On the 10th of August.‘49 they offered a reward of $500 for proof sufficient to convict any one person of any one unlawful overt act, past, present or to come. I am not complaining of this. It becomes necessary to open this system before you for the purpose of testing the value of the evidence which has been procured by it. The Railroad company employed a corps of spies to watch and to circumvent suspected citizens, paying themn compensation, varying from seven shillings and $2 per day or night, to $40 per month.  How large that corps was is unknown. But it numbered one hundred at one time, and no less than fifteen of its members have appeared here as witnesses to sustain this prosecution. Here they are-Phelps and Lake, recently discharged from the State prison; Van Arman, a lawyer from Marshall; Clark, a member of the legislature from the same place; Cochran and Shearman, laborers; Dixon, a sheriff froj: Marshall, acting in the character of a wheat buyer; Holden and Gillespie, gentlemen; Taylor, an employee of the Railroad company; Wolevar, Wells and Caswell, accomplices in the crimes they denounced; Wescott, a discharge.:a” Faulkner, a earman. You> t, t ahe’ io e: aa {us occupati’ns of society and all the conditions O ]{f;bm the state prison and the brothel thro6-h the classes of merchants and farmers to the sheriff’s office, the bar and the Ie sla tive halls. The witness Phelps, enlisted among the last, took rank at the }ad of the corps, displacing Wesott, all w-thhi was etied with the dispon $ e patronage o”ihpe company as a’broker. Phelp’employs Lake. Wesci’ employs 3. Well Wescott offers J.

Tyler a good place ” if he will come out e railroad company;” while Michael Coy is told by Phelps that if -he will onl, “swear for the company there shall be no lack/of money in his p 5. This sys. tem was in operation six months. It is no wonder if oblivious strenries have be awakened, malicious memories quickened nod feeble memo has been activity; all was activity from tHie beginning’ - - “Some tell what they b eard or ta croan monopoly of c r -fwit persons and propery of i Acorporation, enjOYhi nd dm it an income f - zens over a great Ae state, has become, in s sean of alarm, a power gbey threefold the revruethe state itself; and nowe see bthe wisdom of a saying hind the state atejelf a sovereign. Beyond a bt his own court was i. of the son oQf Sraehillar s like these when he admom hed the unw ary: s Curse stead by a nest of thought; and curse not the rich ev n in thy bedchavber for ot the king;, noj eht;andurer norIih ig ot thein~jn~4!rythy voice, and that which hat wings Shall tell of the a bird of thee-a…… matter.” Z-~/ as.er.spesan matterdi. Sz3s smere spie s and informers, unconvicted of crime, Reg ard i r ached, what is their moral standard in a virtuous o,mo dun<co )ntrae. J disonsaid, for he was not only a morahlstbut a ereta f wetat AI’.capable of so infamous a calling as that oDa.Spy is nqtve 15

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much to be relied upon. He can have no great ties of honor or cheeks of coisence to restrain him in those covert eCvidence, where the accused has no opp)rtuInity of vindicating hinimselt. He will be iolre industrious to carry that which isgrtaeful than that which is true. There will be no occasion for him if he do not hear and see things CoitL\Oa discove,inlg; so tait lie naturally inflames every word imd every ci eni-ta:‘ice, aggraSteps what is faulty, perverts what is good, and misrepresents what is indiictil’ent. Noi is it to be doubted that such ignominious wretches let their Hpr pate?assions,llto these their clandestine inforaioins, and often wreak their particu iar spite andt i-nlice against those they are set to watch.” If this is wise morality, (and it ha. been universally received,) and if there is sound philosophy int.‘the old Spanish proverb “bad the crow, bad the egg,” we shall be at no loss to appreciate the eric,-iBe bcforei.us. It is-a mountain of falsehood with here and there a grain of trn:. hen I look upon the men who occupythe place on my right hland, and recognize anmong them pioneers of the state its farmers, its mechanics and citizens, and then on this legion of spies, and find there on the witness’ stand convicts yet: wearing the look and the gait contracted in the state prison, and see others come reeking fiom the stews of the city; I ask myself, can it be real? Does honesty dwell in the penitentiary and crime stalk abroad over the state? Is the city pure and the country polluted? Has truth fled from the hearth of the farmer in the country and taken shelter in the purlieus of the metropolis? No! I am not in Michigan. I am in Venice, where an aristocratic senate keeps always open the lion’s mouth, as well by day as by night, gaping for accusations against the plebeian and the patriot. I am in Syracuse and see before me the dungeon which the tyranmt has construeted with cells in which he has imprisoned those he fears, and constructed its walls onl the model of the human ear, so that its curious channels convey to him even suppressed groans, and sighs, and whispered complaints.-,autfist, where is the truth f these accusations to be tried? They are. a.e =; coffences:which OUght, of tgh t to be tried a om h h;e the accU~c? pa,it~ hive,y a~ja:, n~og~.:4__..:aoit elsewhere h o by a jur o tran ger The accused ought to be at large on bai, to procure the evidence to BP*” the cmniators; and yet they have been draggec 70 miles from their homes out o ei wn county. d Jackson through the intervening county of Washtenaw, and pmies. Nay l, w._
ted aA ndanw en sickness has befallen a juror, and when disease has prostra tedernentl repr is cell the proeetution have’complained of the cost of delav and v eonstitutoenam the prisone ecause they would not surrender almost the ad i present left them iDeing tried by twelve jurors and by no’leass act Of citizens of Detioi on durng i’Nr trial. ButT
mistake.’, This is not the gan, for it is a just and bey area hu +e people. This is not the act of Michi Micihigan Centilal Railroad nt comnlin\ealth. It is not the act even of the hae dared to misuse their pow Iti t t of agents,of that corporation who I k %v adi I feel well assred, t-I o nl2Lthe police authority of the state ed t vith sati~“ection by the ndaits will be receiv th Coi,oration h wiiie it d cmtd~~ls’nmt ilb -,he-corporati do aro ith h be approved even by dirscotaets pervading the state b r: thwings froespblic -%e. inqCuire now whetther t stence ofr the alledged byth “dluissnib5O i-d declintns of the de,feid,i ts -.,piracy is established only eonsitu iijaW.left” WI,e(.,.7’,”!sredrams the. aereioity of te witngpessesy.‘Ioni tliny are p roved j nquiryin olvesthe ^utes the “‘reater;pat of the evidences ou i CCOlz i Wesere coni o f thei em of.in’ lu ers o HeIme as. d!a isplaced i y the early leader .,e o-,i iti ia rtu aidered a suspieious witness, superior merit of hrhil -intoimer.- Ad testimony begins at the time when heY his at -ifime. e hinCenta aroc met f he pi ilro.d company in that haiacters at the ratoL
theepy ;iretian tiled place and its emoluments. Secondl heI~er nionth.h ~~~~~~~~~~~~~~~~~Sa…. ly, - h r i e A’ it dieted for Perjury at Mackinaw and th te y the c+i of Dr.ankin the prosecutor who was an e rnt a’e’ !~ e mqut-e n o w w mentl ra oblhe mane 16

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Wescott alleged on his examination that Dr. Rankin was himself indicted for perjury in preferring the complaint,and that he committed suicide to escape conviction. It was proved by the clerk of Mackinaw that Dr.Rankin was never indicted,and that he died a natural death. 3. Wescott is discredited by his personal and groundless malice against the deceased defendant Fitch. Mr. Toll and Mrs. Toll proved that Wescott said last summer, that “Fitch was a notorious scoundrel; that he would appear as a friend to your face, and the moment you turned your back he would run a dagger to your heart, and that he would yet see Fitch peeping through the grates of the State prison.” Mr. Tyler declares that Wescott told him that a web was being woven around Fitcil that would draw him into State prison.” Such is the charct(ter, and such is the temper of the witness.

Hle is rendered still more unworthy of belief by his denial of having uttered the maliciousremarks against Fitch which have been proved. He shows himself equally timid and false. He would have us be ieve that his life has been in continual peril while he has been prosecuting his private services in a public cause. But all these perils are proved to have been fabricated and false.‘Ilus hie has entertained us with a pretended plot,by several of the defendants,in which it was con. trived that hlie should take a seat at the card table near the window, in Fiiley’s house, and that the defendants should then assassinate him, by a simultaneous assault with stones through the window. The very heap of stones which was to be used was pointed out by him to a witness, and they probably were deposited there with his own hands. However that may have been, you have seen the spot. You have seen that a piazza some three feet wide intervenes between the window and the high closelatticed verandah. No mortal arm could hurl a stone from the verandah through the window with force enough to commit an injury. No mortal eye could see through the verandah, nor mortal force throw a stone that would reach through the verandah and the window. But, Gentlemen, you will recollect that Wescott obtained his knowledge of this plot by drawing himself through a hole in the wall and listening to the conspirators through the floor of the barroom. Unfortunately for Wescott’s veracity, Mr. L. A. Hildreth, who opened that hole in the wall for tbe purpose of driving the joints of a water pipe, testifies that it was not large enough for a man to enter. Darius Clark comes to the relief of Westcott and testifies that in November last Wescott pointed out the place to him and that it was then as large as now; but Ammi Filly, Jr., a lad of 14, proves that Clark must have erred in date, because on Christmas day, when a piece of coin had dropped through the floor in the barroom, he found it impossible to pass through the aperture to find it. And this child is corroborated by the witness who fist opened the aperture at a day later than that fixed by Clark. Wescott described a second peril-that, pursued by an infuriated man with a ferocious dog through the deer park, he plunged to his armpits into the mud and mire of Wolf Creek, and he gives us, for confirmation of that peril and es. cape his assertion, that his wife removed the mud from his clothes. I admit that some unknown person lurking on the watch was chased by a dog into Wolf Creek, but I still must withold my belief that Wescott was the fugitive. I can scarcely believe that a man who would be thus engaged could have a wife, much less that any woman who is a woman would have lent her hand to take a stain from his garments thus con. tracted. Wescott gives a touching narrative of a third peril through which he passed. A quarrel arose in the ballalley between one of the defendants and C. Palmer. Weseott represents, or causes it to be proved, that Fitch and himself were standing at the doors, looking on upon the strife, and that Fitch afterwards remarked, that, if he had known Wescott at that time to have been a spy,he would have thrown him in among the cornm batants that they might have beaten him to death.

Unfortunately for the effect of this fearful narrative it is disproved by Almon Cozier, who says that neither Wescott nor Fitch was at nor near the door of the ball alley,from the time when the controversy be gan until the combatants had retired to adjust it, as I presume, over a bottle in Filly’s bar room. The testimony throws but a dim and shadowy light over the fourth and last critical escape of the ci-devant leader of the band of spies. The Tribune in this city pub. lished on some authority, “A leaf in the history of the conspiracy,” andit was repub. lished generally by the papers throughout the United States. This leaf revealed the dreadful factthat one of the informers was actually present, in disguise, at a reg 17

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18 UAr meeting of the conspirators, in which it was solemnly resolved to put him to dath,and that thejob of executing that sentence was put up at auction and sold to the lowest bidder at $100, the bidder reserving to himself the right to decide on the manner of execution but being bound to perform it within four days. Wescott denied that he had put that report in circulation. William Harsha, one of your most respectable citizens, came upon the stand and offered to testify that Wes cott, referring to the publication, by implication confirmed its truthfulness and its application to himself. But the rules of evidence, insisted on by the prosecution and sustained by the court, excluded the testimony. I proceed to examine the evidence of Wescott, promising you that, in the first plae, what there is of it that is not contradicted directly or by internal evidence, is vworthless; and, secondly, that what has any pertinency is thus contradicted. His testimony is to this effect. that, when he repaired to Michigan Centre, in the fall of 1850, he placed himself on an apparent footing of intimate friendship with the de fendant Fitch; that Fitch, under those circumstances, gave him a narrative of what L he boys” had done, in 1849; that they had secreted themselves in timbered lands, then rushed out and obstructed the cars, and after the hand-car had passed before; that Fitch said “the boys had stoned the cars, had placed strap-iron between the joints of the rails, and, mockingly said also, that Elder Limbocker and Priest Foster committed this depredation; that he had remonstrated with them, but they were hard cases, and would not desist; that in speaking of the accident, which had befallen the Gazelle, he said the Locomotive got dry, and ran down to the marsh for water; tlat he had advised the boys not to throw trains off at the dry marsh, as that would be too bad; that one morning, at sunrise, at Michigan Centre, when the cars were due, Fitch looked up into the sky, and predicted that they would not arrive till afternoon; that this occurred, as Wescott says, on the day when the cars ran off at Galesburg, ninety miles distant; that Fitch said he had written to Chicago and had ordered handbills warning people not to travel on the road, on account of the ob. -tructions; that this was the only way to bring the Co. to terms, and make them pay for cattle; that the R. R. Co. had offered a reward for Fitch’s detection in comLmitting depredations against the Co.; that, suppose he should be arrested, he could find witnesses enough in the State, if not min Jacksonr Co.; that they never would convict him; that Fitch said he would shoot Wescott on the stand, if he should swear against him; that his friends would do so, if he should be unable to do it hiaself; that he could prove any thing he wanted; that he had friends who would stand by him, who were little suspected, and named among them Harry Holcomb, Col. Delamater, and many others of the most respectable citizens of the county in avxieh he lived; that he would defy all hell to convict him, and that he could never Tik witnesses.” So Wescott testified that Filly, when speaking of the accident to the Gazelle, sad that they had got a big coon but had lost its tail; that the damned railroad had sued him for timber, that in ten days hlie would make thiem wish that a Fitch or a -Lily had never been born; that Filly said the Co. had sued him for stealing lumber, -i[t they wonld want more, for hlie proposed burning the depot at Jackson; that on the same day Filly proposed to Coiwin to burn the depot there, saying that there -velre shavings around it which would make it easy. Thus far the admissions or declarations proved by Weseott, if they have been made, are valueless, for they show nothing more than feelings of hostility on the tt of Fitch, and of passion and hatred on the part of Filley. They show no Connection of both of those defendants with any trespasses which were actually comitted, nor any connection between those defendants themselves; still more, no eanection between either or both of those persons and the other defendants. i pass to some more material statements of Wescott. He says that at Barrett’s lawsuit Fitch was active in behalf of Barrett, as a volunteer. Fitch, in fact, attended as a ,witnes, and as this is a free country, Fitch had a right to give in evidence facts within his own knowledge, and even to utter his opinions on the merits of that controoversy, and to express his own sympathies with either party. Wescott represents that Fitch Xldhim then, that “he would like to take him into the lodge that night; that there

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19 was to be something up;” that the next day he asked Fitch what was up, and Fitch replied, “there was a fuss the night before, (alluding to an obstruction of the cars by a mud sill, and the breaking of a lamp,) but, damn’em, I told’em I wasn’t at home,” We have proved, that after the lawsuit, Fitch attended a democratic Caucus and, still later, a theatrical performance; that he arrived at home after the accident to the cars had taken place, and that he went down with the defendant Lemm, to see what had occurred. Wescott further says that Fitch told him that he 11
had ad vised Barrett to bring three suits against the R. R. Co. for cattle killed, not mean ing to have them tried, but to fuss in the law till the spies should leave, and then they would have a grand smash, worth a dozen lawsuits, and the Co. would begin to think “there was a God in Israel;”

that Fitch, subsequently, in his parlor, explain ed to Wescott alone what “was intended by this grand smash;” that he was de termined, with the boys, to bring the Co. to terms before the State Fair was over; that, in order to show that the prevailing feeling was not a local one, he intended to throw the cars off at the white bridge at Jackson, at the dry marsh, and at the high embankment, “three places of peculiar danger;” that “he would thus kill a hundred and fifty passengers at the State Fair, and that thus they would bring the Company to terms; and if this wouldn’t, then, in Gods’s name, what would P If we fail in this, then, God damn’em, we’ll burn’em out.” Wescott says, that Fitch, in the same connection, “offered him a thousand dollars to burn the depots at Detroit, Ann Arbor, Jackson and Niles, or two hundred and fifty dollars for burning either, saying that they had men who could do it, but it could be better done by strangers; that he was determined to make the Co. pay a hundred thousand dollars or come to terms; and he adds that Filley also mentioned the grand smash which they intended to make at the State Fair, and said, that if they could get the entire train off at the drymarsh, there would be no need of coffins; that the passengers would be buried deep enough without the aid of sextons; that if they could get the cars oft at the high embankment, while the survivors were looking down upon the mangled remains-of the dying and the dead, it would be a good tinme to feel of Uncle Sam’s ma il bags; and that the Railroad Company would be liable to UnCle Sam for the detention of the mails.” Who believes Abel F. Fitch to have been insane P No one. Who believes that a sane, educated man, living in such a country as this, could conceive a purpose soatrocious, or that, conceiving it; he should impart it to another? Abel F. Fitch was a man of education, position and fortune-in all these respects surpassed by few in Michigan. He was a public officer, respected and honored at home,: with troops of friends bound to him by clasps of steel, in various parts of the State. Is there no truth in the ancient maxim: “yemo repenlte fuit turvissimus?”*’ Is there any hight of crime towering above what is here alleged to have been reconnoitered?: Four months ago Abel F. Fitch came here an object of public fear -and hatred, borne down by the scorn of his country, and of mankind. He went in and out before you. You saw him every day harrassed, insulted, reviled, by such testimony as thisyou saw him meek, gentle, confiding. cheerful, and enduring. You know his death. It -vwas peaceful, tranquil,- the death of a man loving all good things on earth, yet resigning them cheerfully in hope of better things in heaven.

Judge between him and his venal accuser, by the probabilities arising out of such a life and such a death. Who does not see that the conception of such crimes is absurd, because it exceeds the experienced depravity and folly of the human heart. The depots of the M. CG R. R. Co. were safe against the incendiary, if the conflagrations were to be postponed until the commission of a hundred or a hundred and fifty murders. Where was the defendant Fitch to find shelter after the commission of these fearful crimes? No one has ever heard of that projected “grand smash” but Wescott.

On the very first day of the State Fair, when it was to take place,’

Fitlch with his wife and daughter, Col. Delamater and other friends, arrived at the State Fair by the cars which were’tb be thrown from the track. A portion of his family and friendJs came by the cars on the second day. TThey aill returned by the cars on the thirta day; and” it happened that there was no train of cars passing’between Ypoilanti,and * “No man reacbthe Xbights of crime at’ once-“

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20 Michigan Centre during the three days of the Fair, in which himself or some of his family or immediate personal friends were not found. The remark imputed to Filley, that there would be no need of coffins, bears intrinsic evidence of being coined by Wescott,s own turgid imagination. So the remark about the scene, where the survivors should be looking down on the mangled remains of the dead and the dying, while the conspirators should be feeling of the mail bags and subjecting the R. R. to damages to Uncle Sam for the detention of letters, could have proceeded from no other brain; and evidence enough that these high swelling and gigantic words, with their lame and impotent conclusion, never proceeded from the mouth of Filley, is found in the fact that Wescott equally draws the same terrific phrase from off the tongue of Wm. Corwin, a teamster, and from off the lips of Orlando D. Williams, a common stone mason. Of course, gentlemen, even though these declarations and admissions were not made by Fitch and Filley, Corwin and Williams, no one can prove that fact, because they are alleged to have been made to Wescott by these parties in private conversations with him alone. But, fortunately, when a witness stands impeached in character, his testimony is to be rejected, unless it be confirmed, and when he is contradicted in one essential fact, that one contradiction overthrows his entire evidence. You have haO his refutation and contradiction in regard to several essential facts. There are more such refutations. We find onein the celebrated window scene. Wescott testifies that, one evening in August, 1850, he crept into the court-yard of Fitch’s house through the space made by displacing the lower end or base of one of the pickets, while it hung by a nail on the upper bar, drew himself under the bedroom window, looked through the gauze curtain, saw Mr. and Mrs. Fitch retiring to bed, and there heard him say to her that “they were watched close; that they must hold up till the thing settled down a little; that the boys had, within a few weeks past, knocked the Co.

to the tune of $20,000.” You cannot have forgotten, that Wescott, in giving this narrative on his direct examination, altogether omitted Mrs.

Fitch’s reply,and with what suspicious promptness he supplied the defect when it was pointed out to him on his cross-examina-e tion: “Mrs. Fitch said she thought he had better let the railroad company alone, and mind his own business.’ You cannot have forgotten that he saw in the room the safe, which was a dark object, on one side,while he could not see the bed,which was a large white one, lying almost before him. The identical fence, through which he alleges he passed, stands before you. Neither in that panel, nor in any other is a picket that was loosened, and the whole was new and painted more than a year before that transaction is said to have occurred. If a picket had been displaced, it would have made a space of only four inches. Wescott is a young Falstaff. When pursued by dogs into Mud Creek, like his great prototype when cast in his buckbasket into’he Thames, he could have exclaimed, “if the bottom had been as deep as hell I should have found it.” But even Calvin Edson, who was exhibited as a living skeleton, could not have gone through that fence. Amanda Fitch and Charlotte Beman proved that from July to the middle of Sep tember Mr.

and Mrs. Fitch slept in an upper chamber. I waive the testimony of Miss Clark, because of the confusion into which she fell about dates. An attempt was made to show that Mr. and Mrs. Fitch occupied the lower bedroom in the summer, but it totally failed. The witness Burr testifies that on the 29th of August, at about 8 o’clock in the morning, he found Mr. Fitch in bed in that room, which might have happened in consequence of temporary illness; but Mrs. Fitch, who came upon the stand to support the testimony of her daughter and Miss Beman, and who was denied leave, could not be excluded from contradicting the testimony of Burr, and so the alibt is sustained beyond dispute or contradiction. Wescott made a strong point by a conversation, before adverted to, in which Fil, ley paid Williams money on account of the Gazelle, but this is disproved by Crow ell, who was present, and who testifies that the three dollars, so paid, was paid in return for so much money borrowed. Again, Wescott testifies that the defendant Fitch said “he had got Lester clear from the indictment found against him by false swearing.” No such admission could have been made, because we have produced

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21 and read here the order of the Court discharging Lester upon the ground of a nole prosequi, on motion made by the counsel for the people. But even with all this testimony,if it had been received as true,the evidence was insufficient to establish a conspiracy. Wescott attempts to furnish such evidence with directness and effect. To that end,he says that FiLch,Filley and Corwin called themselves’the Leoni band,’ and when required to state how and in what manner, he says,” Fitch called himself, Filley and Corwin the Leoni band;” Filley said, “Leoni against the world;” Fitch said, he, Corwin, Filley and Williams were banded and conspired together for the entire destruction of the road, unless they paid for cattle; and Wescott being asked what Corwin said, repeats the same thing in the same words,”

I, Fitch, Freoeland and Williams are banded together for the entire destruction of the road, unless they pay for cattle.” Do you not see how admirably this testimony is adapted to the exigencies of the prosecution?

I imagine I hear the counsel, Van Arman say, “Wanted-proof of a conspiracy.” Wescott: “They called themselves the Leoni band.” Van Arman: “Wanted-evidence that Fitch belonged to the Leoni band.” Wescott: ” Fitch said he, Filley and Corwin were the Leoni band.” Van Armnan: “

Wanted-proof that the band was batnded together.” Wescott: “Fitch said’ we are banded and conspired together against the railroad company.” Van Arman: “Wanted proof that the object of the conspiracy was the destruction of the railroad.” Wescott: “Fitch said’ we are banded and conspired together for the entire destruction of the railroad.”’ Van Arman: “Wanted-evidence of a design to extort money from the company.” Wescott: “Fitch said he meant to make the company pay ahundred thousand dollars.”

Van Arman: “Wanted-evidence that Williams proposed to extort money from the company.” Wescott: “Williams suggested a proposition to be made to the railroad company. through Mr. Joy, for five thousand dollars ~ year for five years.” What a solemn ind fearful scene must that have been when these conspirators threw off the mask-” Leoni against the world!” Where and what was this Leoni? It was a hamlet among the oak-openings of Michigan. What was its magnitude? It consisted of a country tavern, a storehouse, a school-house, a church, and a dozen bumble tenements. Who were the members of this band? One country gentleman, one keeper of a tavern and ballalley, one drinking teamster, one backwoodsman, and one village mason; and they acted their parts with as much boldness, and even more, than the clowns in the interlude in Midsummer Night’s Dream. For when Bottom proposed to act the part of Lion he was overruled, lest he might roar too loudly, and so “frighten the duchess and the ladies.” No such timidity distinguished the clowns of Leoni. They proclaimed themselves the unterrified”Leoni against the world!” This testimony is too ludicrous for grave discussion; but if you think it worthy of consideration, I submit first, that it proves too much in regard to the extent of the conspiracy. What was wanted, was a conspiracy against the Michigan Central Railroad; but we have here a conspiracy against all mankind. 2dly. It proves too little, in regard to the number of the conspirators, for at most there are but five, which is forty-five less than the whole number of defendants charged. 3dly. It is too general and too vague, for it does not at all show how this Leoni Band carried on their wicked warfare against either the world or the Michigan Central.Railroad. Adieu, Mr. William D. Wescott, “We know thee to the bottom; from within Thy shallow centre to the utmost skin.” I pass to other evidence in support of the conspiracy. Here is a letter from Abel F.

Fitch to Mr. Brooks, the Superintendent of the Railroad Company: “Michigan Centre, Oct. 29, 1849. “Mr. J. W. BROOKS-Dear Sir:-Almost every day some persons wish to take passage on the cars at this place, but the trains refuse to stop for them. Yesterday Mr. G. C. Chatfield, mother and sister, wished to take the cars for Detroit,and gave the usual signal, but no notice was taken of them. Now, if this policy comes from you or your legal advisers, as did the insulting half-pay proposition for killing cat

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22 ed said,” if shey didn’t pay her value, it would be a dear cow to them;” also, his declar tie, if serious accidents do occur on the road, on your head, and yours alone, must rest the responsibility. Yours, &c. ABEL

F. FITCHI.” And here is the answer, which we have proved was given to this letter: [Here Mr. Seward read the answer.] A perusal of these documents shows that Fitch’s communication was a friendly though earnest remonstrance against proceedings of the Company, and that it was xeceived and regarded as such. Had it been heeded all would have been well. Five hundred dollars would have paid all the damages claimed by complaining par ties for the destruction of their cattle; and the payment would have prevented all danger and all tumult. Henry Brown testifies that Fitch, Freeland and Filley said, not when together, but separately, and on different occasions, “we will let them know there is a God in Israel; that they could have no sympathy for the Company; that the way the Company acted, the dry marsh would be a good place to let them down.” Brown was a poor, illiterate negro, doubtless honest, but incapable of correctly reporting a declaration or admission, as is seen in the fact that he attributes precisely the same remark to three different persons. The threats which he proves, if his testimony is reliable, were nothing more than outbreaks of popular passion, in a private con versation. I shall waste little time upon the declarations proved by Woliver. He says that “all the defendants,” (although they were never together,) “seemed to coincide in tearing up the track, and in saying that they had had their property killed, and if they could not re venge it one way, they would in another. They would nevergive up until the place was satisfied for damages; that they would carry out their objects in some shape, and that Fitch said they would hang together.” This is testifying upon a new principle of swear ing made easy-that is, Woliver gives us the effect of what forty different men said on different occasions, individually, under the general caption, known in the law books by the term il semble-it seems. - Woliver was,a vagabond, and, as has been already shown, a false one. The testimony convicts him of having consumed a whole barrel of whiskey in a single summer. The evidence he gives of the depredations, which were ac tually committed, shows that they were individual, casual, unpremeditated crimes, and disproves what he gives for the purpose of showing a confederacy among the defendants. Joshua Wells says that “Fitch said, that they could not convict any one of the offencs that had been committed; that when Filly said they could prove they were at Bear Oreek, Fitch replied they could get what witnesses they wanted there; that on one occa sion Fitch showed how a car could be thrown off by a wedge, and how a rail could ba placed so as to strike thle lamp of a locomotive.” It is easy to see that these are mere speculations of Fitch, arising out of the transactions of the times, produced here with some little perversion, to sustain the charge of conspiracy. A prudent man-a prudent iury-wilI require evidence of the whole conversations or reject such fragments. The counsel herve dwelt upon the reply of Fitch to Spaulding, when he declared himself ready to take arms in defence of the Railroad, to wit: that “he had two double barreled guns, and he could get as many men as he wanted, and he was prepared’for the whole damned Company.”’ The witness Burr shows that Fitch was a sportsman. His guns were kept for exercise. The remark was made in reply to an insulting threat made by Spaulding. You will take the same view of the reply which one of the wi.tnesses says was given by Filly, and another says was given hy Fitch, to Stone, when extinguishing the fire of the wood pile, that they ought to be burned np with the wood, and then the Company would pay their owners half price for them-mere idle and unmeaning, passionate words. uN the same category are Fitch’s reply to Holden, at Gardner’s Grocery, when asked what they meant by stoning the cars, “that the Company would get worse than that if they didn’t pay for the cattle killed, and that every animal killed had cost them a hundred dollars, a similar remark made to Wm. J. Welling, “that the cows cost the Company one hundred and fifty dollars each;” a saying of Corwin’s to the witness Henry, “d-n ‘em, let them pay for cattle, if they don’t want to be shot;” Corwin’s comments upon the Railroad Dream, when upon reading” how a rich corporation killed a poor man’s cow, and the poor man prosecuted and yet had to withdraw his suit,” Corwin commented,‘By G-d, the people of this town won’t stand such operations;”’ the threat of O. D. Williams that “he had stoned the cars, and would as long as he staid in Michigan, C
entre;” and another proved by Henry, to wit: that Williams, when he had a cow kill

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23 ation that the ” road ought to be torn up till they paid for the cattle, and then they wold go along peaceably;” so also Freeland’s remark, “that a plan could be laid to blow up the Railroad, by placing powder under the rails;” and a remark imputed by Dexter to Fitch, to wit: ” on one occasion, when the cars run off, he said he wished it had injured them more;” ud his declaration proved by Knickerbocker, ” that the Judges of courts could be brought under the influence of the Company, and there was no redress for the poor man, and that the Company was an aristocracy and a monopoly.” These and other kindred expressions, abounding in the cate, are intemperate,‘but casual utterance of individual exasperation, made in public places and on public occasions, under circumstances totally inconsistent with an idea of a connected plot, or organized conspiracy.

They are evidently, dissevered, disjointed parts of popular debates of which can no more be gathered from the dismembered sentences, than the system of the theology of the Bible from cross-readings in the Concordance. Discussion of the wisdom and impartiality of Judges is not interdicted by the Constitution, and error ia that respect, like error on’

other political subjects, may be safely tolerated, where “Reason is left free to combat if,” A word only will be bestowed upon the testimony of Wm.

Dobbs, who gravely tells uthat ” Williams offered him five hundred dollars to burn the May Flower and thi At steamboats, and that Williams said Fitch, Filly and Champlin would be his backers, Dobbs was a city runner and bully, who was rusticating in the country; Williams, a village mechanic, given to occasional intoxication, especially when visited by such worthies from the Capital. He probably was not worth at that time five hundred cents. He may have magnified himself and his relations with Fitch, Filly and Champlin, in saying they would be his endorsers; but if such conversation occurred at all, it was in some barroom revel, as an interlude between those interesting “fight s,” in which he and Dobbs knocked other each down, by way of settling the important dispute whether a gold dollar was larger than a five cent piece. Mark English contributes, in aid of the prosecution, a statement that Fitch in September, 1849, said, “We have laid a plan to fix the road in such a shape that the Company will be unable to find an engineer to run on the road,” when I asked the reason, English adds,” he said they would not be willing to run the risk of their lives-that it would not answer for Brooks to go over the road.” English was a laboring man, employed by Fitch for a short period.

Ignorant of the force of the terms used, he gives, doubtlessly, the designation of “plan” to speculations in which Fitch may have indulged concelLiug the condition of questions then agitating the public mind; and this, probably, involuntary error is all that gives his testimony any effect. Charles Rogers says he worked two days in harvest for Fitch in 1849; that he heard “Filly speak of a piece of timber to be placed in a culvert, so as to be di-awn by a rope after the hand-car had passed; aod he heard Fitch speak of percussion caps, and of a machine to throw the cars off in the right place, and then be removed and saved to be used at some other time; that he heard Fitch say he was willing to turn out with his team, and tear up the track, 6ut didn’t say how far he would tear it up I What an unfortunate forgetfulness! Fitch must have assigned limits-at his garden wall, at the end of his orchard, or deer park, or at the high embankment, or at Dexter, or at Ann Arbor, orat the gates of Detroit, or on the banks of the river; out conscientious Charles Rogers forgets them.

In regard to these two last witnesses, it is only necessary to recall the remark before made-that testimony consisting of detached sentences, severed from long and probably frequent conversations, without explanation how those conversations arose, to what they related, what were the points involved, and what the conclusions arrived at, is utterly val. ueless. It is simply incredible that Fitch should have bestowed just this amouat of confidence and no more, and no less, upon a!aboring man during two days in the harvest field. The testimony disproves itself by its absurdity. The machinerv to bc applied to draw timbers upon the road, after the passage of the hand-ear, is quite too clumsy; the use of powder and percussion caps quite too artistical, while the idea of tie portable engines for throwing the cars from the track savors quite too much of frugality. The counsel for the people, alledge that Charles Rogers is a man of unquestionable veracity, Their standard of veracity accommodates even Wescott. Adopting that standard, I think Rodgers excel, Westcott in fertility of invention. A large portion of the evidence consists of threats alleged to have been made by the defendants against spies, of which 1 shall produce a few samples only, by way of ills tration, viz: Fitch’s alleged warning against spies; his supposed attempt to soothe and pacify Woliver, when he was leaving Filley; Corwin’s expressions of solicitude on thay

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24 -occasion; Filley’s aileged visit to him, after he had gone; Champlia’s conversation with Sherman, warning him of the dangers of infidelity. the alleged threats of Williams, Cor win, Price, and others against Westcott; Williams’ assault upon Holmes; Fitch’s alleged aemark, as proved by Caswell, that if Sherman had betrayed him, as he had the boys, he he wouldl like to feel his knife about his ribs; the threats against Westcott on the occasion of Gleason’s visit to the Centre; and threats by Williams and others that they would killa spy as soon as they would a dog, a bear, or a masassauger. In regard to this class of evidence you will remember, gentlemen, in the first place, that it is by exaggerating the danger they incur in the cause of the Railroad,that these “mis. creants” expect to gain greater confidence and higher rewards. In the next place, all these threats and demonstrations were such as would naturally occur when such spies were employed; and there is no necessi y to look for any motive, other than indignation, and the desire of safety on the part of the parties watched, whether they were innocent or guilty Remember these spies, how they abounded like the locusts-how they way laid suspected men by day and by night, in the open streets, or concealed by hedges, how they sat disguised at their tables, lurked under windows, under the bed, under the floor.how no one living at Mich, Centre could enter or depart from his own door without danger of stumbling over them. Yon will easily imagine the apprehension, and fear and indig nation which such an unlawful and self constituted police would awaken. Answer then, whether it is not wonderful that although this state of things continued in so rude a society six months, yet no life was sacrificed, no limb broken, and with the exception of the injury committed by Williams upon Holmes in a drunken revel, no violence was committed. It is immaterial, for our present purpose whether testimony of this description be true or false; if true, it is accounted for on a principle different from that of a conspiracy; and if false, it may be dismissed at or,ce from consideration. I remark, however, in regard to all these alleged dtclararions and admissions that the testimony bears the unequivocal impress of fraud and fabrication. A conspiracy was to be proved. That was essential in the case. What else was indicated by Westcott’s remark to Taylor, that a web would be wound around Fitch, which would drag him to States Prison? What else was meant by Phelps’ remark to his wife at Laycock’s house, that “if Westcott would do as he agreefl, he would come a good drive over Fitch.” What could it mean but that Westcott and his associates should frame and fabricate the evidence of a conspsiracy to connect the trespasses at Leoni with the all, ged arson of the depot at Detroit. The task of forging this conspiracy was assigned to Westcott, while it devolved on Van Arman to polish it. The akledged admissions are all in the language and idiom of the witnesses who proved them. Westcott is facetious, and so Fitch, who was a grave man, is made to ridicule the clergymen of his town. Westcottl is grandiloquent, and so, not only Fitch and Filley, but even Corwin and Williams utter rant and bombast. Phelps is classical as Lucifer ard so both Fitch, (who was not a literary man) and Filley (who was a fisherman) speak in heroics. We have vowed, says Fitch, that “no cars shall pass without doing homage to Michigan Centre,” and Filley says, “if you will burn the depot at Niles, Fitch will give you his wife or his oxen.” When Henry Brown, the negro, reports an admission, it is in the idiom of his own degraded cast and race. He said “he didu’t and couldn’t have no sympathy with the R, R.”

When Cas. well and Woliver testify to like admissions, they come out in the shape of abrupt and pros faned oaths; but when Mark English and Charles Rogers are reporters, the language is chaste and subdued.

Gentlemen, from the days of the Grecian oracles down to those of the RochesterRappings, there have been those who have reported communications with departed spirits. I have always observed that the ghosts addressed were learned min the languages of the conjurors. So that if th6se who were gathered together on the day of Pentecost, should be summoned, all of that shadowy host, whether Jews or Greeks, or Romans, or men of Crete or of Cyrene would respond in the vernacular tongue of him who addressed them.

These alleged declarations and admissions by the defendants, betray the same accomodation to the witnesses who report them. One remark more. These pretended admissions of plans and plots and conspiracies are manifestly false, because no such plan, plot, or conspiracy has ever been developed.

We are asked to believe there was a plot to burn four depots. No dep,t was ever burned: a conspiracy to destroy a hundred and fifty lives; no life was ever destroyed. The question of the existence of the cnspiracy then stands thus: 1st. The evidence consats of overt acts committed by persons unknown and without explanation; 2d, of overt acts with explanations, of the attendant circumstances, which altogether exclude the idea I

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25 of conspiracy. 3. Of alleged meetings, in which nothing was agreed and nothing conspired and which meetings were never held. 4. Of individual expressions of resentment, passion or revenge, rebutting even a presumption of mutual understanding or concert. The pretence of a conspiracy fails, because what was done was done by those who did not conspire and who had no knowledge of any conspiracy. What is alleged to have been contrived in conspiracy never was executed, neither by the conspirators nor by others, and never came to the knowledge of the actors in what was done. Only four defendants are proved to have committed criminal acts, and there is no evidence that they ever conspired to do those acts, much less that they ever conspired for any ulterior object or purpose. This allegation of a conspiracy then is foreign frolt the case.

The proofs in support of it were admitted on grounds which have failed. It is a false issue. The issue is not whether felonious crimes have been committed in Jackson Co., attended by atrocious threats. Crimes have been committed, but those crimes, whether with or without such threats, belong to the jurisdiction of Jackson Co., and not to yours. An attempt to try the defendants for them is an act of usurpation. It is an usurpation which can only lead to retaliatory aggressions of the same character by the people of Jackson county. The conspiracy again is a false issue, because even if it existed, it would not prove that the defendants were guilty of the crime of burning the depot at Detroit. If the crime was committedthe defendants must be equally convicted whether there was a conspiracy or not; there lies the secret of all the difficulties that have attended this trial and of all the delays that have occurred. You have been trying forty different men for scarcely less than forty different crimes. The issues were multifarious, the proof confused and the subject of the guilt or innocence of the defendants is involved in innumerable perplexities. In the history of English and American J-urispondence, there was never such a trial by Jury. I sincerely hope there may never be another. Gentlemen there are two classes of defendants, viz. First, those who are charged with the cr.me of burning the depot at Detroit only through an alleged connection with a pretended conspiracy. Second, those who, besides that connection are also directly charged with the crime by pretended admissions of complicity or knowledge. The latter class must abide your examination of the whole case. I am ready to show you now that the first class are entitled to be acquitted. There is no eidence at all against Ira Beebe, nor against Rus sel Stone, nor against John W. Welch, nor against Welcome Hill, nor against Wm. Lang, nor against John Ladue. You will acquit them of course. Henry Showers, stand up, What, not here! The prosecution have anticipated me by excusing this defendant from further attendance. Nevertheless you must pass upon his case. Phelps says that”

about the middle of March last I found Showers, Filley, Lake Champlin and others at Michigan Centre. We talked about my journey to Niles, and about the diffic ulty in burning.” Did Showers hear this conversation? If he heard it, yet he said nothing. The Detroit depot was burned in Novemer 1850; the conversation was in March, 1851. You will of course acquit Henry Showers. Dr. Arba N. Moulton. Hle also does not appear. Jacob Woliver says ” Dr. Moulton and others told me to look out for spit s, for they were watching us.” Wells says, ” Lay cock told me he borrowed from Moulton the pistol which Caswell received from Fitch.” S, A. Williams says,” that at Rome Dr. Moulton told him that he understood there was a plan to blow up the railroad.” Let the Dr. pass. Jacob Terrill. Young Dexter says that “

Terrill advised him and his father to settle up and clear out. as they were suspected of being spies.” You remember that Smith made a a show of proof that Terrill once laid a piece of strap iron on the rail, which, however, would have done no harm. Your verdict, gentlemen, must be for Terrill. Wm. S. Warner Phelps says that last March, three months after the Detroit depot was burned, Warner asked him how railroad stock was and whether it was above par. Another witness says that on being arrested Warner asked who Phelps was, and said he did not know him. Be pleased to acquit the defendant Warner. Benjamin F. Burnet. You see him there,he went across the railroad for a midwife on the day the Goliab ran off the track, but he has shown that the services of a midwife were wanted. When his cow was was killed by the engine he said he could recover her full value, but it would cost him more than it would come to. Acting on a committee to ne gociate with the Railroad Company, he expressed the opinion that their policy was unwise and unjust I am sure you will discharge Burnet. Napoleon B. Lemn.’ He conducted Barret’s case against the Railroad Company. Phelps thinki that Lemn heard part of the conversation with Filley in the ball alley. on Christmas-What part? There’s the rub. Whatever he may have heard, he said nothing. If to hear was criminal did it relate backwards and make him responsible for the burning of a depot in November? Lemn was Corwin’s lawyer also, and he sad he said he should pity the Railroad Company if Coywin was to be convicted of burning the wood pile, that Coiwin had friends, that the cars would be run off out of sight if Corwin was convicted;

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26 and the witness added that Lemn said “this was right, the people would have their re venge.” If indeed Lemn said all this [ grant that it was bad law, and bad morality, but it was not arson. Dixon the wheat buyer, relates that Fitch told him that when Lemn went up to the place where the Dexter had been run off, he slipped a knife into his sleeve. This is hearsay. A verdict, gentlemen, for Napoleon B. Lemn. Hiram Hay. Why he has gone too. I am losing all my clients. Hay was at Fillev’s on the night of April 11th-that mysterious night. But he did nothing-he said nothing, and according to Phelps, Lake and Faulkner he was allowed to hear nothing.

When John Faulkner, “‘the woodman,” arrived at Jackson at sunrise on the morning of the 12th, he looked around and saw a man mounted on a high white horse, and he thought the man was Hay. But certainly it was not Hay, and probably the horse itself was only a grotesque and fleecy passing cloud. A verdict then for Hiram Hay. Grandison Filley. Phelps and some of the defendants attended a ball at the house os Grandison Fillej in March last. But Filley is charged with doing nothing, and saying no thing there.

Dr. Hahn says that in the cars when the prisoners were coming down under ar rest, G. Filley and another were sitting behind him, and that one of them said” If I could get hold of that damn’d Hank Phelps, I would make mince moat of him. He has been about all winter, pretending to be visiting, and now he has come out and exposed the whole mat ter.” Which of these three pesons, gentlemen, shall we send to to the State prison for this admission. Grandison Filley must be acquitted. Benjamin F. Gleason.

This defendant called at Fiich’s house twice, and Westcott says that Filley, speaking of those visits. said that “he,” (Westcott,) “was a damn’d spy, and he ought to have his throat cut.” Wolliver says that has heard Gleason, among others, say that the persons who committed depredations on the railroad could not be convicted, for the reason thot they could get witnesses enough to swear them clear. I think, gentlemen although there may be treason, yet that there is no arson in all this, and therefore I ask the acquittal of Gleason. John Palmer. Phelps alleges that Palmer remonstrated with Minor T. Laycock against becoming a witness and a spy, for the railroad Company; but inasmuch as this testimony is contradicted by Christie Blackman, who was present on that occasion, and is harmless if true, you will at once discharge John Palmer from the indictment’ Lester Penfield. He was present at the dinner at John Palmer’s. Wells says that he asked Penfield if he was not afraid, inasmuch as his sled was shod with old railroad iron? He replied, ”’ no! they never could prove any thing, they had tried several times and fail ed.”

Penfield, according to Mr. John Dowdle, when speaking of trespasses upon the rail road in Leoni, said” the people were contending for their rights.

Undoubtedly they were. gentlemen, but they were contending in a wrong way.

Nevertheless. I thillkyou will re store Mr. Penfield to his mill. He is wanted there’ Abner Grant. He has neither done nor said any thing worthy of bonds. Barrett has on ly prosecuted the Railroad Company for his cow that was destroyed. It was a grievous fault, but he has already grievously answered it. Willard Champlin He did not write the “Price Boys Warning?.”

hlit,ps relates that Champlin saidat Filley’s. that he would like to have seen the depot at Detroit burn, with Brooks in it. but Hart Holmes proves that Champlin was not at Filley’s on that occasion. Minor T. Lqycock did not fire at an engineer, even if he received loaded-oistols for that purpose. Phelps says, that Fitch told him, that Laycock knew that $150 was paid for burning the depot, but did not know to whom it was paid. This is mere heresay, and Lay cock must be acquitted. E. J., and R. Price. Phelps informed us that Price, without distinguishing which of these to defendants, admitted that he had contributed to the fund to burn the depot. We cannot ascertain which one ought to be punished, and therefore I think you are bound to acquit both. Did the defendants hire and procure Gay to burn the Dep6t? The case on the part of the people is that Geo. W.

Gay burned the depot with a match which he lighted at his own house near the Grand Circus, in the borders of the city, at 7 o’clock in the evening, carried in a I x through the streets in to the depot and there,in the presence of the laborers, but unobserved by them, deposited in the cupola at eight o’clock, that it burned with a slow flame until between the hours of two and three in the morning when it communicated fire to the building and the depot was consumed; annd that the defend ants now on trial furnished the match to Gay and paid him $150 for committing the monstrous crime. The burning of the depot by an incendiary is what is called the corpus delicti. The crime must be proved first and beyond a reasonable doubt before you are at liberty to enter upon the question whether the defendants were accessories. uIn regard to the crime then you will mark that no human eye saw G. W. Gay set fire to the depot. The assumption that he committed the crime rests on the conceded truth that the depot was consumed somehow; and on evidence of admissions and statements supposed to have been made by him and by the defendants. Such evidence is at once the most uncertain and unsatisfactory of allitestimony. I dwell upon this because there is a

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27 With respect to all verbal admissions says Greenleaf (vol. I, p. 200) it may be.observed that they ought to be received with great caution. The evidence consisting as it does in the mere repetition of oral statements is subject to much imperfection or mistake, the party himself either being misinformed, or not having clearly expressed his own meaning or the witness having misunderstood him. It frequently hkappens also that the witness, by unintentionally altering a few of the expressions realy used gives a completely different statement of what the party did say. The zeal too which so generally prevails to detect offenders, especially in cases of aggravated guilt, and the strong disposition in the persons engaged in pursuit of evidence to rely on slight grounds of suspicion which are exaggerated into sufficient proof, together with the character of persons necessarily called as witnesses in cases of secret and attrocious crimes, all tend to impair the value of this kind of evidence, and sometimes to lead to its rejection, when in civil actions it would have been received.

The weighty observation of Mr. Justice Foster is also to be kept in mind, that this evi dence is not to be refuted in the ordinary course of things,in the way by which the proof o p!ain facts may be obviated. (1

Greenleaf 213.) “Hasty confessions made to persons having no authority to examine, are the weakest and most suspicious of all evidence.”, (Foster’s Discources, 243.) These principles apply with infinitely greater force when the alleged admissions are procurred for hire and reward. I ask you now to assume a further principle, which the court must charge you to be true and no one will gainsay, which is that no admission concludes against the fact. An admission does not bind, if the fact is not true. Thus an admission cannot bind if the fact be impossible, because if it is impossible it is not true. The law is so tenacious of this principle, that if Gay should have declared that he burned the depot, and if all the defendants should have confessed that he did so and that they had employed him to burn it, and if it should appear in fact that the depot was not burned at all, or that although it was burned yet that Gay was in Buffalo or in bed at the time of the burning, the evidence of the confessions must be rejected. Without reviewing now the admissions alleged in this case I shall shlow you, in the first place, that they must be rejected and that the defendants must be acquitted, because the manner in which the crime is confessed to have been committed was impossi ble, This is a distinct and independent defence, for if it was impossible to burn the depot in the manner described, then the defendants must be acquitted nevertheless, altholugh all other positions assumed in their behalf should fail. I proceed to show that it was impossible. This instrument is of the samue kind with that with which the depot is alleged to have been burned. It is not the same instrument, for, of course, that one is assumed to have been destroyed by the fire it kindled. But the description of that instrument is given us by the witness Phelps, as he obtained it from Gay, the supposed incendiary, and from Fitch and Filly who, it is alleged in the confessions proved by Phelps, delivered that instrument to Gay. This match is made and furnished not only on the same plan and principle, but exactly in conformity to the description given by Phelps. All question in regard to the identity of the instrument in principle and in furniture is excluded, because this match now produced was found in the possession of Gay, and is presented to us as one of two which he alleged to Phelps, he received from Fitch and which Fitch confessed to Phelps he had delivered to Gay in Febtary last, to be used in the burning of the new depot as soon as it should be constructed. You see here a second instrument made and furnished on the same plan and principle. Phelps sayvs, this last one, was delivered to him by Fitch and Corwin on the night of the 11th of April. to be used by him in burning the depot at Niles, and that it was actualy employedtwo days afterwards in setting fire to that depot. The admissions of Gay that he burned the depot were admissions that he burned it with a match of this description. The admissio_ of the defendants that Gay did burn the depot and was hired by them to do so were admissions that he burned it with a match made according to the description which they gqe and the duplicate matches, which they deliveved, one to Gay at Detroit and the othbrto Phelps at Michigan Centre, which dupl;cate matches I now hold in my right and left hands, I call your attention now to this one, which was used by Phelps in firing the Nileq depot, and is therefore called the’

Niles’ match. You see it is a cylinder of whitewood, a foot long, that has a hollow tube bored with an anger in the centre lengthwise from. one end to within an inch or more of the other end. Al ording to the descriptions, that central tube is coated with varnish and being thus coated is filled with camphine. When that tube is filled the orifice is covered with a seal of shoemaker’s wax. Remember now that the tube is coated, not with glue, but with var

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28 common notion that admissions are conclusive while no notion is so erroneous, nish and with no other substance, and that the orifice is sealed not with any other sub stance than shoemaker’s wax.* Here then in the same end of the instrument you see it is pierced with four small central tubes near the circumference. These extend back ward to within an inch of the other end of the cylinder. In the centre of each of these is inserted an open funnel or chimney made of brown wrapping paper reaching the bob tom of the tube and kept in shape by a thread twined round it.

This funnel you see is smaller than the tube in which it is placed. The vacant space in the tube around the funnel is filled with cotton pressed down so as to fill the whole of that part of the tube which surrounds the funnel. This funnel with the cotton surrounding it constitutes the alleged, slow train. Turning now to the other end of the instrument, you find that each of these tubes running paralell to the exterior surface and near to it is connected with a fuse or touch-hole bored into it perpendicularly from the surface. A match thus con structed and thus furnished, according to the case of the Prosecution, and no otherwise constructed or furnished, was laid horizontally in an oblong box some two or three inches longer than the instrument with the solid end of the instrument against one end of the box. In that box the vacant space of two or three inches in front of the pierced end of the instrument was filled with shavings saturated with camphine or turpentine. The case shows that Gay, at his house near the Grand Circus, at 7 o’clock set fire to one or more of the trains contained in the smaller tubes, and then carried the box, covered with a lid, nearly a mile through the streets from his house into the depot, passing some thirty or forty men employed there, proceeded up two flights of stairs and deposited it, burning in the cupola, that after removing the lid he left it there at 8 o’clock, that at half past two in the morning the burning train or trains had conveyed fire through the instrument, that then coming into contact with the saturated shavings it caused them to burn, that the combustion melted the seal of the central orifice and the camphine thus released fowed, out and taking fire produced the conflagration of the depot. We of course were not allowed to practice experiments upon the duplicate mAtches which were produced in evidence, but here are two instruments constructed by a mechanic of this city on the same plan and furnishe I in precisely the same way-that is to say, constructed and furnished according to the duplicates before you. The flues or chimneys are mnade of brown paper. The space around one of them, was filled with cotton, closely packed, so as to produce a slow train. It could not be fired at the fuse at all. A second train was prepared with oakum, a substance named as an alternative in tho description, but not found in either of the duplicates, and which we supposed to be better adapted to transmit fire. All efforts to conmmunicate fire to that train through the flue failed. A third train was prepared with cotton, less closely packed, upon the supposition that the fire would pass through it although more rapidly than the principle of the machine required, but the fire kindled at the fuse went immediately out. A liberal construction was put upon the description and it was supposed that the train might require to be saturated with camphine or turpentine, both of which were named in the description but for a different use. A train was therefore prepared, composed of a mixture of dry cotton and of cotton saturated with camphine.

After much difficulty and after igniting the block itself at the fuse-hole, this train was set on fire, and smoke and sparks at length passed through the funnel. The instrument was then laid in a horizontal position, and after ten or fifteen minutes the train ceased to burn. The instrument was left lying, in a horizontal position, on a stove, during the night, and not a spark of fire was found in it in the morning, while the train remained unconsumed. This experiment demonstrated that a match, constructed according to this description, and to the models, produced in evidence, could not be made effective. The reason of the failure is obvious. The tubes are formed on the principle of the gun barrel, that is, of a barrel of uniform bore pierced at the bottom with a fuse hole. It would be impossible to fire a gun charged with cotton pressed down from the muzzle to the.fUse of the barrel, even with the aid of an open paper tube in the centre of the cotton, -; Here is a pistol with large bore.

Here you see it charged with’: “train consisting of a paper tube surrounded by cotton, according to the description anvd models. I apply a match, the train will not take fire at either end. You say that the fuse hole is too small Well, take a drill and open the fuse hole as largely as you please. You see at once that *Mr. Van Dyke. The description includes glue. The Court read “‘the hole is glazed”&c. Mr. Seward Glazed is not,-lued.Mr. Van Dyke. “It includes glue.” Mr. Seward’ No, sir. Varnish is used asthe thing with which the glazing was effected. You glaze with varnish, but never with glue. Look at this table. [i is varnished, that is “glazed” with varoish.’

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29 the result will be the same. Guns are made to shoot with, not to carry slow trains But you say, that there is only one barrel in the pistol, while the machine has five. Yes, but if you cannot fire one, you cannot fire five. The draught in so close a chamber would be inadequate to sustain combustion of these materials; and if there were enough, the draught would be from the muzzle to the fuze and not from the fuse to the muzzle. The Cou isel for the people have added absolute confirmation to the result thus ascertained by the testimony of Dr. Desnoyer, a skillful and I believe eminent chemist, who, testified that he had made repeated experiments with instruments thus made and charged by himself, and found it to be impossible to fire them at all. Another experiment was made by us, which resulted in proving that, if a fire of camphene, or of cotton saturated with camphine, was kindled at the fuse, it would be imme.

diately extinguished by placing the lid upon the box. The first experiments also showed that if such a train, (made of paper and saturated with camphine) could have been ignited and kept burning, it wouild have emitted a smoke and an odor of cotton, paper and turpentine, that would have immediately be trayed the presence of the fire. A further experiment showed that camphene, or turpentine, was a good solvent of varnish; that the varnish almost immediately disappeared, that within ten minutes from the time the central tube was filled with camphine the resistance of the varnish had ceased, the camphine was absorbed into the pores of the block, and the pressure of the external atmosphere (which I believe is sixteen pounds averdupoise on each square inch of surface) caused the shoemaker’s wax to bend or cave inwards into the tube, whether the instrument was in an erect or in a horizontal position. After two hours, the camphene was found to have passed through the solid block of wood at the further end, and the wax,unable to re sist the atmospheric pressure, fell in. and the camphine was discharged. These experiments, then, showed, first, that if Gay had lighted the match at his house, it must have been extinguished by being covered in his passage through the street. 2. That if it had continued to burn,the presence of the flame would have betrayed him to all whom he passed, whether in the streets or in the depot. 8. That the fire, if burning when he left it in the depot, it must have died out immedi ately. 4. That if the train, in opposition to the resistance of natural laws, had continued to burn seven hours, or until half past 2 o’clock, that the camphene in the central tube would, five hours before that time have flowed out, and that camphene, as well as that with which the shavings were saturated, would have been absorbed through the box into the floor on which it was place&d. But you will ask,may not the instruments with which you experimented,have differed from the original, alleged to have been used by Gay. We have therefore tested that question. Here is the Niles instrument,with which it is alleged that Phelps did actually set fire to the depot at Niles. You need no, be reminded that this was done by Phelps under the super vision of the officers of the Railroad Company, for the purpose of more effectually charg ing the. defendants. The match furniture remains within,just as when the instrument was brought into Court. You see for yourselves that the trains, made in the same way, are all here, and every one of them remains unconsumed. You see here the paper tube the thread, the cotton and the wax on the end of the instrument. You see morever that no particle of smoke or flame ever passed through any of the trains; you yourselves saw ed the block around at the intersection of the tubes and holes, and there you see that the cotton was never ignited, not even that which was in contact with the fuse. Nevertheless ou see, with equal distinctness, that the fuse holes have been made large, and the lock itself set on fire around the fuse holes, in the fruitless attempt, to produce combustion of the trains. Turn now to the testimony of Darius Clark, and you find, that he says that the fire which was communicated by this match to the building at Niles was communicated dnot b the camphene, nor by shavings, nor even by the trains,) but by the fire kindled at the fi~e hole. That is to say,the match set fire to t) e depot by being first set on fire itself, like any other billet of wood. I take now this match found in the possession of Gay, and which we call the Detroit match. You will recollect, that it was produced as one of two which,according to the testimony of Phelps and Lake,were admitted by Fitch to have been givenby him to Gay in February last, to burn the new Depot. There is no difference be. tween that a:d the Niles match, and no difference between either of them and the match es upon which these experiments were made. Now to render the demonstration complete. You see that I.Apply this burning Lucifer match to the cotton in this tube, and that’the cotton being so ce;,eby CRed, actually refuses to be burned. Here axe the traims in I

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30 the Detroit match, all the paper tubes and all the cotton necessarily surrounding them, just as they were when the instrument was found. Now you see me me apply a light ed Lucifer match to the cotton, and it remains unburned. It then the alledged admissions were made, the verdict must nevertheless be for the de fendants, beeause the fact admitted was impossible. The admissions are of no more worth than would be admissions made by the same parties, under the same circumstances and with the same solemnity, that they bnrned the depot at Detroit by setting it on fire with a fragment of an iceberg. Thus it has been proved, that the match, with which the Depot is alleged to have been burned, is a humbug, and that theduplicate matches, produ ced to give effect to the tale of the witnesses, are duplicates of’Ihe same hum-ug 1 It is immaterial whether the defendants made the admissions, for the purpose of imposing upon the credulity of the witnesses, or whether the admissions themselves were fabricated by the witnesses, The conclusion is irresistible that the defendants are not guilty under this indictment. The answer of the prosecution to this distinct defence is given by Dr. Desnoyer. After faithfully trying to make an effective instrument, with the materials of wood, paper, twine, cotton,varnish,camphene and shoemaker’s wax,according to the descriptions and to the dup licate models, he pronounces that it is impossible. Thus he corroborates and establishes the demonstration we have made. But, after arriving at this result, he was instructed to use other materials at pleasure, and at all events to produce an instrument in the sameform which would be effective. After a fortnight of laborious experiments, the Dr. produced an instrument which was partially successful. Instead of varnish, for coating the cen tral tube, he employed glue, which, all know, is soluble in water and yet not soluble in cam pihene or in turpentine. Having coated the central tube with glue, he made it retain the camphene for a longer period than when coated with varnish.

Next, he saturated cotton with a solution of saltpetre, and thus, of course, produced a low quality of gun cot toea, and used it in making the trains. Unprepared cotton will not convey fire through a tube. Gun cotton will, and thus, by the use of that material, the Doctor has made an in strument, in form resembling the machines exhibited here, which will convey a flame from the ~usehole through the instruments. Our reply to this evidenceis, (1.) That, even if the Doctor’s instrument was identical with the supposed match of the defendants, still the eX periment would be a failure, because the utmost length of time to which he could pro tract the burning of the train, in the instrument, was one hour and ten minutes; whereas, it is required that the match should retain the fire not less than seven hours and a half. This is skill beyond the Doctor’s art.

What.has been done once can be done again What was done by the clowns of Leoni can be done by the science of Detroit. But Dr. Des-‘ noyer cannot do it. Counsel say,hlie said that he thought that his new match could be perfected so as to burn several hours. I was not here when he testified, but I am in structed to deny it. Yo?n will decide. But whatever he may have said, the result of his experiment is afact, is evidence. What he speculated, beyond that, is not a fact, is not evidence. (2.) His match is not identical with that of the defendants and differs from it in the use cf the materials, glue and tun cotton or saltpetre. It differs altogether from it in princl ple, because glue is snsoluble in camphene. while varnihh is soluble therein, and because saltpetre, like powder, of which it forms an essential element, is explosive, and conveys fre by percussion, while cotton, whether saturated with caniphene or not, is not explosive, and transmits fire only by contact of the particles. Saltpetre is moreover highly charged with oxygen, the element of combu6stion. The unprepared cotton, or cotton unsaturated with camphene, is less highly charged with oxygen. It was varnish and not glue that was demanded by the descriptien given. It is simple unprepared cotton that is demanded by the description. It is varnish and unprepared cotton, alone, that are actually found in this match, which is claimed to have fired the Niles Depot, and in this one, which was to have fired the new Detroit Depot Again, the Doctor’s experiment was not tried with the same conditions. The supposed match of the defendants burned when lying horizontally; the Doctor’s match lay in an angular position with the funnel upwards. If a defendant was alleged to have admitted that he killed another, with a certain gun which he exhibited, and if that admission Fould be proved to be false. because the gun was not loaded, the case could not be restored by’ producing a whole magazine of guns, and showing that they could’be loaded -And mLade destructive. The answer of the prosecution, then, to this aefence, is an atthought, a new invention, a subterfuge. It is a studied, deliberate fraud. The profsecu El endeavors to escape, by. saying, that the cotton in the Niles match might have been saturatedwith

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31 saltpetre; but if so, then it would have differed from the description given, which did not require saltpetre. Again, if the cotton in that match was saturated with saltpette, the ealtpetre is in it still. They give up, that there is no saltpetre in it, as they must, because it would burn now, if it ci:ntained saltpetre now. But they say that the witness Clark,testified that it was laid in the river at Niles,after having fired the depot. Unfortunately,however, it is too plainly to be seen, on examination, 1st. That it never was fired in the trains at all. 2d.

Clark’s testimony, about its having been put into the river, is expressed in vague terms, and probably rests on mere hearsay. 3d. The paper tubes in the Niles match are solid and firm,whereas they would have collapsed by reason of the expansion of the cotton when put in the water. 4th. The whole instrument is composed of such light materials, that it would have floated away,like a bottle or a cork, if it had been thrown into the river. Again, it is quite certain that the match prepared for burning the new depot at De. troit was never immersed in the river. I applied flame to it, with precisely the same result, in attempting to burn, as the other.

Neither contains saltpetre-neither will burn. But still, it will be insisted that saltpetre might have been included in the description. This cannot be, because Phelps, who alone gives us a description, has been upon the stand and has not amended it. The reason was, that, in inventing the description, he had made camphene the essential ingredient. He took care to insist upon camphene as an ingredient to be used whenever he spoke of the match, thus, “That he lent Gay two dollars to buy camphene with,”

implying that it was to be used in charging this very match now here, which he was to use in burning the new depot at Detroit. With equal care, he makes Fitch say, when he delivered the Niles match, “You will get camphene out there, (at Niles,) becaus-it will be inconvenient to carry.”

When Phelps arrived at Niles, and p:oceeded to set the depot on fire, he actually procured camphene at the railroad offier,, and charged the instrument with it, by pouring it into the trains, not into the central tube. The thought of saltpetre never occurred to him, nor to any other person, until it was suggested by Dr. Desnoyer, after the humbug had been exposed here in Court. Besides how should Ami Filley and Fitch and these illiterate men at Leoni learn a secret in chemistry that Dr. Desnoyer has taken a fortnight to find out in his laboratory Gentlemen, you are now at liberty to trace out the results of this exposure. They are That the pretended burning of the depot at Niles is a fraudulent fact; that the concealment of the fraudulent character of this fact until it is discovered here, is also fraudulent; that the pretence that the Niles match was immersed in the river all night is a fraud that the pretended employment of Gay to burn the new depot at Detroit is a fraud; that the pretended confessions of the defendants, and even of Gay, that he burned the depot at Detroit are fraudulent; that the pretended admissions of the defendant Smith, that he was a party to that crime are fraudulent; that the pretended admission of the deceased defendant Gunn, that he was going to burn the Depot at Marshall, is fraudulent; that the pretended consriracy of the defendanis to burn these depots, is false and fraudulent. If you are surprised, as I am, that the prosecution, after the exposure of all these frauds, still endeavors to convict these defendants, by imposing upon your belief that the Detr(it depot was burned with a match, furnished by the defendants, differing from that which the prosecution first proved, I can only say, that it is a new illustration of an old maxim, that ” he “hat stands on slippery places mnakes nice of no vile hold to stay him up.” This, gentlemen, concludes the first defence raised against this prosecution. If there were not mountains of prejudice to overcome, I should leave the case here. But there is a second defence no less clearly established and no less conclusive. This defence is also an independent one; and stands or falls by itself. The matches produend ,here by the prosecution, and which Ihave called duplicates, were fraudulently fabricated by Phelps and Lake, the Peoples witnesses. Before I prove this point, you will permit me to explain its effect upon the case, if established, If these matches were fraudulently fabricated by the witnesses for the prosecntion, then their testimony showing that Gay and the defendants admitted the burning of the Depot by a similar match made by them and given to him, must be false, l3cause the case stands upon those admissions. It is essential now to recall only this part of the testimony, to wit: that Phelps, Lake, Yan Arman and Clark, say that on the eighth or ninth of April they saw this Detroit match in the possession of Gay, in his house in this city, and that Titus and Phelps say they found this same match now in my right hand under the sidewalk, near Gay’s house two days after his arrest, and that the prosecution produced it as the match before seen in Gay’s house by the other witnessos 2. That Phelps and Lake testified that they received the match, which I hold in my left hand, fom Fitch and Oortwin at Filly’s house in Michigan (entre, on the night of the

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32 11th of April. These are the same which I have called the duplicates.

It is e,ertain that somebody made the matches. It is morally certain that they were made or procured to be made by either Phelps and Lake, who produced them, or by the defendants. The presump. tion of law,I need not tell you,is that they were manufactured by Phelps and Lake,in whose possession they were found. But Phelps and Lake say that they derived their possession from the defendants Take notice now that no one but Phelps and Lake ever saw a match in the possession of the defendants before the 8th of April. When actual evidence of the manufactnre of a thing cannot be procured, we resort of course to circumstantial testimony.

Evidence of the possession of materials and instruments used in making the matches must be leceived. The materials of which these matches are made, are seasoned whitewood lumber in the form used by the Raihoad Company for cattle guards, varnish, camnphene, shoemakers’ wax, cotton batting, brown wrapping paper and thread. These forty and more defendants were arrested nnsuspectingly in the night time and hurried away to prison, where they have remained ever since. The police, armed with search warrants and conveyed in unlimited numbers by steam engines, have searched the dwellings, out.houses, farms, and even bed-roomnas, cellars, closets and garrets of the defendants-their chests, bureaus, drawers and every possible place of concealment, yet not a splinter of whitewood has been found in their possession, nor does that timber grow in the region where they live. Not a, thread, not a filament of cotton, nor a drop of camphene, nor a leaf of paper is to be found. The instruments employed in the manufacture were a saw,a plane and augers. No instrumnent of either kind has ever been found in the defendants’ possession. If the defendants had made or procured these matches to be made, some merchant in town or country would have come and have told us that he sold some of the materials; some mechanic, that he furnished the instruments; some spy or casual listener, to prove that he saw some part of the operation, or overheard consultations about it. Not a whitewood scantling, nor plank, nor cattle guard, is found in that neighborhood. No man appears to testify that he ever saw a piece of such lumber bought, or drawn by the defendants, or delivered to them. If the matches were made by the defendants, that secret must have been in the possession of forty men, and must have come to the knowledge, directly or indirectly, of their wives, children, laboring men and strangers, sojourning within their gates. The prosecution has heldl and exercised a power equal to that of torture. They have not extorted, neither by threats nor rewards,‘a confession that any defendant ever saw or used any such materials or instruments. The defendants have lain perishing in jail, subject to the continual visitation and surviellance of the police, from the District Attorney downwards. No one of the defendants purchases his liberty by confessing knowledge of the manufacture of thece matches. Again, it is beyond all doubt that if the defendants made these matches, then they made them to destroy. They never would have delivered them to Gay and Phelps to burn Depots, unless it was certain that when applied, they would have effected their work of destruction. But these matches were made-not to burn-not to destroy-but to humbug, deceive, and defraud. They have deceived and defrauded; they have not destroyed, and cannot destroy. So much in regard to the defendants: let us now turn to the other party. The idea of a match or an instrument of such a kind arose in the mind of somne6body in the State Prison, at Jackson, at the time when Phelps and Lake were there. In form, the instrument is like the wooden model of the revolving cannon, produced there by one of the prisoners. Phelps admits that he knew of that invention. He does not admit that he saw it, but Phelps was intquisitive and impudent, and the invention was notorious. That invention never came to the knowledge of the de. fendants. Look, now, at this humbug-this “cunning instr,ment cased up”-a contrivance, not to burn houses with, but to circumvent credulous and timaid Jurors, and punish obnoxious enemies.

See if it does not wear an appearance of fraud-if it doe” not give out an odor of vulgar felony. It is State Prison, all over, and through and through. Remember, now, that Phelps and Gay, in the first interview of their renewed acquaintance, in December, contrived a plot to effect a release of the culprit, Van Sickles, which was to be predicated upon the burning of a Depot. The plot was this:-that a Depot was to be burned, or, as Phelps prefered that it should be pred. icated upon the accidental fire which had already taken place at Detroit-that the fictitious crime was to be falsely charged upon Joe Boyce, who had dishonored his profesion by stealing from thieve, and that it was to be carried out by subponaing a

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33 first rate man and his wife, who would swear that Boyce told them, before the depot vuas burned that he was going to burn it, and that after the fire he told them that he hadt burned it. A token, a visible token, a sign was necessary to give plausibility to this plot. Why, a token? On the principle that the Jews demanded of the Saviour “a sign.” On the principle laid down by Horace, in his instructions upon invention, Segius irritant animos demissa per aures, Quam quee sunt oculuis subjecta fidelibus.* A match like thatwith which a depot might have been destroyed,upon the theory adopted, was just ths token wanted. The more curious,the more vulgar,the more terrible the contrivance,the better. Mark, now, that Phelps and Lake spoke of matches long before they were ever seen by themselves or by anybody else. Phelps says that Gay told him “of a match in his first interview in December, while the ashes of the Depot were yet smoking, and said he fired the Depot by placing the match in the cupola, at eight o’clock.”’ As yet, Phelps shows nomatlch. Again,Phelps says that Filly on Christmas,at the ball alley in Michigan Centre,said they “had made a match, and had sent it to a man in Detroit, with instructions to place it in the cupola, and that it was placed there, and went off first rate.’ Phelps relates further that Filly described the mnatch on that occasion, with great particularity. But remember that Phelps, as yet, neither produces a mat.:h, nor claims, to have seen one. Phelps again says that about the sixteenth of January, when he went with Win. B. Lacock to the ballalley, Fitch described the manner in which the match was made, and said that it was sent to a man in Detroit, and that then Fitch took him into the store-room of Filly’s barroom, and showed him a match, saying he would give him such an one to go to Niles. Phelps says that, afterwards, Filly showed his the same match, at the same place,but fixes no day.

Nevertheless, as yet,Phelps producea no match. Again, Phelps says,that on February the 13th,Fitch, at Detroit, told hi thlat. “he had given two matches to Gay, similar to the one with which he bunied the oldc Depot, and that Gay, on the same day, told Phelps that he had received from the man then in town, who delivered the first match, two matches like it to burn the new Depot with. Still Phelps shows us no matches. Remember, now, that on the 24th of Febraary, Phelps had employed Lake to assist him in his alleged service of the Railroad Company, and that on that day he, with Lake, visited Gay, and that Gay then, in a. upper bedroom, showed him a match; but, as yet, Phelps and Lake exhibit no match to, any one. Mark, now, that after Lake has been employed, and not before, Phelps, by thee hands of Lake, borrows from Moses Metcalf, a near neighbor, augers exactly adapted to the bores or tubes of both the matches p)roduced in evidence.

Here they are s this five-quarter auger, you see, just fits this, the large tube, and this, half inch auger, just fits the smaller one. [Mr.

Seward inserted the augers in the tubes.i Phelps withdraws his wife from their home, leaving Lake sole tenant of his house. Moses Metcalf calls at Phelps’ house; finds the door closed and and the thumb-piece of the latch removed; knocks and Lake, partially opening the door and looking outs like a fox from his hole, receives and answers his inquiries, and closes it again About the same time, Heber Cowden, during the absence of Phelps and his wife,, knocks at the door, the thumb-piece being again out. He is admitted, and finds a. stranger, answering to the description of Lake, using augers, saws, planes, blocks of wood and a basket of shavings.

Remember that all these mysterious things oceurred about the last of March or in the first week in April, and that although Phelp,. pretends to have seen matches during three months before and to have had a de-. scription of them, yet he had never been able to exhibit a match to his employ..

ers, nor to any other person. You will next take notice that cattle guards made of such lumber are found all along the Railroad, near to ana passing immediately by Phelps’ house-that he had the freedom of obtaining and of using the refuse lumber of the Railroad, for fuel or other purposes,wit!x free access and facilities to the lumber yards of the Railroad Co., by whom he was employ ed,and to all its shops and manufactories. Remember next, that Phelps left the premme, he had before occupied on the 1st of April-that on the 1st of July, on a search made in the stable on these premises, then in the possession of Alfred Metcalf, there was found concealed under the decaying hay, in the manger, a broken piece of cattle guard, which Alfred Metcalf, the new tenant, proved had not been placed there bs him selfl Judging from the appearance it then presented to a dozen neighboring farmers, What we hear fover 8 o than what we oee.

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34 -;As they now testify, and from the appearance that it wears, when produced in court, aiaed and saturated with the solutions of hay and earth, in rain water, must it have Wim oealed there not less than three months. You see the stain, how it has penetrated an ‘inh, by looking at this end of the block. Next, take Mr. Stow’s testimony, that on the ,ath of April, after Phelps had left the premises, and after they had come into the pos iess of Alfred Metcalf, Phelps, when passing the place with Stow, left hil, entered -l-e premises and the stable, and was seen through the window, leaning over in ti-e act of doing somet ing with the decaying hay, which we now know was then lying in that  ger We have thus found Lake, as early as February, in the employment and in the house, - Phelps, and have found Phelps and Lake in the month of March, in the possession of SU s, plane-, saws and lumber,and Lake, in the absence of Phelps, and his family, en.ag,ed, secretly in the use of these instruments in Phelps house. We have, moreover, nd the material for the matches, concealed on the premises they occupied in March. Al these thing occurred before the 8th of April; but no match had ever yet been seeni by any one but Phelps and Lake. You will take notice now, that on April ninth, at :Detroit, Phelps and Lake show a match to Clark and Van Arman in Gay’s house, with ‘Ik canivance of Gay; and on April 11th, at midnight, Phelps shows to Clark, at Grass Hae, nmother match, which he says he had that night received from the defendants at m.ichigan Centre, and that on the 21st of April the police, with Titus at their head, hav,/g for two days made unsuccessful search of Gay’s pi emises, are joined by Phelps, who advises a se rch under the sidewalk, a little remote from the house, and thereupon, in B presence, there is brought to light a match, which is produced here as the one shows atry’s houre on the 9th to Phelps and Van Arman. Here is circumstantial evidence of stringent consistency and damning effect against Phelps and Lake, while there is an utter absence of all circumstantial evidence, whatever, against the defendants. I shall be brief in disposing of the falsehoods and sophisms opposed to this circumstantia evidence. 1st. Fitch was hostile to the railroad. Look at these two mna’ches. Neither of them could fire a hay stack. Was Fitch a fool I No I Then he did not give s a match to an incendiary to burn a Depot with, Was he a villain? Then he would ave given to incendiaries, not these matches, but instruments that would have been ef-atual. 2. Mrs.

Phelps, (with Phelps and Lake,) says that the augers were borrowed to mend the wagon springs, and they were mended with a bed cord. But two augers, one of five,,-.uarters and one of two-quarters, were not wanted to bore a hole sufficient to receive a bed cord. We have had views taken by the Juror s of tll memorable places and things Why has not that wagon been submitted to the inspection of the jury, or at least of wit nesses, that it might be seen whether it was ever mended with an auger at all I This mending of the wagon, is clearly an afterthought, a subterfuge. S. Mlrs.

Phelps and Phelps and Lake say that the augers were redelivered to Moses Metcalf on the day they were borrowed. I reply that Mr. Metcalf’s evidence outweighs e testimony of them all; and he says that he has no knowledge that the augers were -ever returned except from the fact that at sometime afterwards, when he had occasion to se them he found them in their place.

4. Cowden testified that before being admitted to Phelps’ house by Lake he looked thro’ - -window by the s de of the door andi saw Lake writing at a bureau, and being informed 7jt Mr. Metcalf that there was no window by the side of the door, hle came upon the id and, reiterating the impression left upon his mind that there was a wind4ow, corrected error. You have seen the house, and have seen that it has a window on the east , as easily approached from the gate as the north front, which contains the door. The sta.ke was a natural one, and in regard to a matter of no importance whatever. I -tre to say, that there is not one of you who can tell me how many windows there sre i the side of this room, behind you, and describe their location. A. That the only bureau in the house-stood in the bedroom covered with dishes. But ou know that the earthen might easily have been removed, and that Lake might have Hen een writing in that room, or that, in the absence of the master and mistress of the Mse, the bureau might have been removed into the other apartment. 6. That the piece of whitewood ti mber found does not exactly correspond in age and n fibre to the matches produced. I answer. Here is a blister on the wood: exactly corresponding to this blister on the Niles match.- But that question has been submitted -to your examination without proof. I am told by mechanics that these matches mighki

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35 bave be taken from that identical stick, though perhaps not immediately adjoiniag the part now left. You will determine; but in doing so remember that it: is not necess ry to our case that the matches should have to be made with these identical augermsnor from that identical billet of wood.

The possession of an instrument and of any such wood implies that the, same party could procure other instruments and similar lumber, 7. That Stow could not have seen Phelps at the manger through the window. Your own experiments have satisfied you that Phelps could have beau seen there before the corn in the intervening field grew up. 8. That Snow erred in stating that he saw a broken piece of cattle guard lying at Rey nold’s crossing near Phelps’ house, during the last summer. Answer. Timber for eattle guards was laid at several crossings in that vicinity duriag the summer, and there is em tire confusion among the witnesses in regard to the places where it lay and the titn it remained there. That is an unimportant matter.. 9, Tha; Fenn may have placed the piece of timber under the hay, and that you are justified in assuming that he did because the defendant Burnet advised the search of Phelps’ premises. Reply.

Burnet’s remarks were the natural suggestions of a misd conscious of innocence and knowinag the innocence of the defendants. Search ot the de I:nhalantspremises had been repeatedly made and nothing had been found to accuse them W y not search the premises of their accusers ~ Wail it is urged that the search was made too late, but it was made as soon at Phelps and Lake had made their pretended disclosures on the trial; and until that time the dde fendants were ignorant what they would have to answer.

Burnet’s remarks were openly made, on Sunday,to his friends at the church door, when hewas allowed by the Railroad o. to go home, and they indicated a reasonable suspicion of the fraud. But how could Fenn or any other person procu’re Bsuc a piece of lumber, and convey it unobserved by night or by day, from any place where it could be found and deposit it in the manger By what chemical process could it have been so effectually saturated and stained, iathe short space it must have lain there, so as to have deceived and misled the intelligent farmers who agreed thtat it must have been subjected to the operations of the decomposition of the hay and earth for a period of three months? Once more. Is is said, that these farmers found it too early. I reply; they say that they found it without alr indieation of place or order ofE search. If it had been found later there Wonldaraebeet equal sutpi’di’on of fraudulent delay. I,racpitiiate.

We find no atches in the proce3sion of the defendants, no materials, no implements nor traces of the manufacture. No one of tiem has ever spoken’

of matches. We find Phelps speaking’of m;tcties three months before any ar’e seen. We find Lake employed by him. Lake is an engineer and skillful in working in wvood. We find hsn, with -tools and materials, at work mysteriously. No match has ever been seen by any person where Phelps was not h mself present, and did not personally prodceio it, or indicate where it could be found. Phelps and Lake after procuring ots and materials and being seen at work produced the matches proposed, Those matches serve t4he purposesof the plot -by Phelps and Lake. They are utterly ineffectual to serve amy. purpose which the-defendahnts could ever hive conceived. Tilea canclusion then is that the matcheas were made by Paelps and Lake, and thus is the engineer “hoist with his own petard.’ We have-then established a second complete, conclusive and independent def’ne.’ IIl.

Here is another, a third defence established with equal certainty which is alike in] dependt,,it and eqalAtty conclusive, viz: Pielps ard L skie fraeJlertf, depos.ited’ i’ tpiley’s house thel match which they pretend was deliveretdl to them on the 11th of April, by Fitch ann,O,rwin. You will see at once that’ ifthis posi3tion is-true, then, it mra be equally true and probab,y is true that they fraudutently deposited in Gay’s house the match found there. If their testimony is false in regard to the circurastances under which thematch was found at either place, then the whole fab,ic of their evidence, and of this great-cause, ftIs t,o the ground. I recall your attentiona, brietfly,;to th.e narrative given by Piielps and Lake concerning the manner in which they obtained the mathelat Michigan Ceatre, April 11th. You will.,reineinber that on tIhe 8th and.th of April, Phelps and Ltke had exhibited the match at Gay’s house to Clark and VanAroaa,. Lake says that it was determined th’en. at Detroit,oa cousulti lion with Clark’to go to Michigan Oentre anil get a ma.tchthere.

-Oa-the tenthi they arrived at Pauelps’ house uOa thi 1ith they went early in the mornilg othehet to Grass Lake. They proceeded the’ce by wa’y ofager 0ady’s honse.‘They’wenta-sh’ort distance westward, then northff”rd to Miclh

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36 iga Centre, by the straight middle road, which they struck far East of Beeman’s oorers, and they pursued this road dircctly to Michigan C’entre; that they stopped no where on the way but at Gager Cady’s house; that they did net separate, that they did not go through the village of Leoni; and that they did not carry with them this match nor any box, bundle, or baggage of any kind whatever; that they had nothing in their wagon but some loose straw; that they found Filley at home, told him that they had come prepared to go to Niles that night; that Filley replied, he was glad of it that they would be ready for them; that Phelps asked if the boys were there, and on Filley’s answering they were not, Phelps replied, that he would go to Leoni and give them notice, and they might come down if they pleased; that Plielps returned on the north road to Leoni and proceeded thence to Grass Lake; that Lake, being ill,after taking some refreshments,laid down, slept an hour, arose, found Filley in the barroom, that Filley and himself fixed a pen-stock; that Filley went to the barn and brought thence this Niles match under his coat,with a box in the other hand and sent the children out of the barroom. Lake examined the match; that he, Filley, then put the match in the box, nailed it up, deposited it in the store-room and put the key in his own pocket; that two young sportsmen came in from Jackson; that Filley sold one of them afish; that, at sunset,Filley said he must take some persons,who were hanging about there, a fishing; that Lake attended him to the pond; that he left him there, without receiving the key from him, returned to the house,and there found Phelps, with Myers,Oor2 win, Fitch, Hudson and Faulkner; and that, after free drinking and many consultations, Fitch called Corwin to fix them off, and Corwin took the key from his pocket, opened the door of the store-room, took out that same box,carried it out of the house, put it into Phelps’ and Lake’s wagon, and told him it was right side up with care and that Phelps and Lake departed m one wagon, and Myers and Corwin returned to Leoni in another. Gentlemen, Phelps had never seen Gager Cady nor his horse. He made no serious effort to buy a horse. He had no use for another horse. Could his visit to Gager Cady, on that occasion, so far out of the way, have had any other purpose but to mislead ob serves, concerning the route of his journey toMichigan Centre. It turns out, I dare not say providentially, to have been the means of disclosing their depraved designs. On that morning, James Peeler and Clarence HI. Kellogg were drawing timber up the road leading from Gager Cady’s to Grass lake.

They met Phelps and Lake, knowine only Phelps. Peeler accosted Phelps, who courteously returned the salutation. Both Peeler and Kellogg saw an oblong bundle a foot long, six inches deep and Wx inches wide, tied up in a red handkerchief, lying on the bottom of the wagon, Peeler asked Kellogg what he thought was in that bundle. Kellogg replied that,if the stranger was a musician, it might be a box of musical instruments; but he believed it contained bogus money, or a contrivance to make it with-a remark most natural, when you consider that Phelps notoriously pursued the profession of either a villain or what is called a stool-pigeon. Israel R. Brown, sexton of the church at Grass Lake saw Peeler and Kellogg arrive at that village between 10 and 11 o’clock,with a load of timber, and he identifies the day by religious services in the church. Gager Cady was sitting in his wagon when Phelps drove up at his door. They stopped and conversed on a proposition for the purchase of a horse. Cady saw something in Phelps’

wagon about a foot long, six inches wide, six inches deep, and tied up in a red handkerchief. James S. Seacord, who lives at Leoni, had been that morning sent by his employer,Dimmick, down the Napoleon road to seach for a beatle and wedges, which had been left in the woods, a mile and a quarter from Leoni, on a road which Phelps and Lake deny that they traveled, and at a point a quarter of a mile south of the place where they allege they crossed that road. On coming out of the woods, Seacord saw two men pass in a one-horse wagon at a distance of three rods, between the lands of Beman on the east and Mills on the west. There, nearly under a sassafras tree, one of the men alighted, took from the wagon a bundle of oblong shape, about a foot long, &c. and tied up in a red handkerchief, put it under his arm, got over the fence into Mills’ lot and went off northwesterly across the fields. The other proceeded on his way in the wagon. Seacord walked up to the distilery and thence to Leoni, and there saw the same wagon, with the same iron-grey horse fastened at Cuykendall’s tavern. He identifies the day by a lawsuit between Freeland and Taylor.

Benjamin Dimmick corroborates Seaord, by saying he sent him on some day in

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37 the same week after town meeting to search for the beatle wedges at the place isdicated., David Beman testifies that on Frida after town meeting, that is to say, April 11th, in the morning, he was at work splitting rails in the rear of his farm out of sight of the road. He sent his son to a knoll towards the road to see whether cattle were not on the wheatfield.

His son having stayed, as he thought, unreasonably long, Bemaal came over to the knoll, and arriving there, he saw, at a distance of some forty rods, two men, who were unknown to him, come up in a one horse wagon. They stopped near a Sassafras tree. One got out, took a bundle, or some. thing else that was red out of the wagon, got over the fence, and went across Esq. Mills’ field so as to approach diagonaly the middle road leading to Michigan Centre, passing Penfield’s Sawmill. The other mali drove on in the buggy across the middle road towards Leoni. lie saw Jesse Cozier come down that middle road with a load of rails and pass the man in the wagon on the way towards Leoni. He identifies the day by the payment of a dollar which he owed to a neighbor and paid on that pay, charging his son to remember it as he was an illiterate man and kept no accounts. Emmet Beman, the son, explains the cause of his delay in going to the wheatfield, and says that he arrived on the hill overlooking the road and there saw two strangers come up in a one horse wagon; that one of them alighted, took a bundle in a red handkerchief, placed it under his arm, climbed over the fence into Mills’ field and went westward. The other man with the wagon and the iron-gray horse proceeded north towards Leoni across the middle road, and the witness saw Cozier with his load of rails, and saw the one horse wagon pass him on its way to Leoni. He himself soon after took a load of rails to Leoni, sold them to Toll, procured a dollar, and paid it to his father’s creditor, and he identified the day as the same when he saw the court and parties in the lawsuit between Freeland and Taylor.

Jesse Cozier swears that on the same day Phelps passed him at the point indicated on the Napoleon road and was alone, and this was north of the place where the middle road crossed the Leoni road. Thus we have these two witnesses, Phelps and Lake, separate and apart, Phelps in the wagon going northard towards Leoni, Lake going westward through the fields on foot with a red bundle. W,e now follow Phelps on his winding way. Mrs. I. D.

Toll, the wife of Isaac D. Toll, lives in Leoni in the house on the southwest corner made by the intersection of the north road from Grass Lake to Michigan Centre with the Napoleon road. She saw a man in a one horse wagon with an iron grey horse come up the Napoleon road. His horse took fright anid ran with him as he drove in. He reined him up and fastened him at the post at Cuykendall’s,facing eastward. Isaac D. Toll, the merchant, describes the same occurrence in the same way. A. S. Luce, a Justice ofthe Peace, says that Phelps’ horse took frighltin crossing a sewer, ran around tie sign post, was reined up and fastened looking eastward.  John Cuykendall, the cavern keeper, was standing on the step when Phelps arrived, and describes the same occurrence inthe same way.

Luce and Toll identify the occasion as the day of the lawsuit before mentioned which was tried before Luce.  On that same April 1 Itn FMrs.

Toll left Leoni before dinner and went down to visit Mrs. Fitch at Michigan Centre. She arrived there about 12 o’clock and then saw the same wagon with the iron grey horse fastened to a post at Filley’s tavern. 1

About three-quarters of an hour afterwards she saw the same person now identified as Phelps mount the wagon and drive off south across the R. R., which would bq his route to meet Lake coming up the road passing by Penfield’s mill, You will next observe that Filley was not at home when Phelps arrived at Michigan Centre, nor when he left, nor had’Lake then arrived there. The two young men, Allen and Kane, who came down from Jackson to Filley’s for shooting, that day, arrived. near 12 o’clock-dined in the yard while Filley dined in the house; they say that they saw Filley, spoke with him and went with him to the pond to shoot ducks, soon after one o’clock. They saw neithler Phelps nor Lake at Filleys. It is manifest that Phelps arrived at Filley’s.after he had gone, with Kane and Allen, to the pond, and so that Phelps did not see Filley.!…

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38 Let us now look for the whereabouts of Lake. Ebenezer Taylor say3 that he war a witness in the suit of Freeland and Taylor; that he was returniig on -foot, f’rom asneighbor’s who lived near Penfield’s mill, and on the middle road, near the milf, .he passed a person corresponding in stature and age to Lake, walking westward with a red bundle which seemed to him like a small trunk tied up in ared hand kerchief. Hethought so because he had such a trunk himnseli. Whether Lake en countered Phelps and received information from him that Filley’s house was clear of strangers or not, it is quite certain that Lake entered the house while Filley was absent with Kane and Allen at the pond. Van Renselaer Arnold testifies that he worked with Filley in the woods until eleven o’clock that day. Filley, at parting, said he should go home to dinner, and after dinner go to the pond and look at his nets; and told him to come down at 3 or 4 o’clock and he should have a fish if Filley found any. Kane and Allen tes tify that between 3 and 4 o’clock Filley left them at the pond and returned home.

Arnold says he overtook Filley a few rods from his house with fish, near 4
o’clock P. M. That Filley went in at the south door, that is, the door of the kitchen, and he proceeded to the north door, which opened into the barr)cm. While standing there a stranger came in firom the back door, which opens into the garden, and to wards the ballalley, and said “how do you do, Mr. Filley? ” and Filley replied ‘-how do you do, Mr. Lake?” That the stranger then stooped and seemed to take up, or at least to be raising something, and said “I have a bundle here, I want you to take care of it while I go up south.” Filley went into another room, came back unlocked the door and told Lake he might put the bundle on or in a barrel, and Lake put a red bundle into the room and himself locked the door and threw the key upon the counter before Filley. Arnold received a fish from Filley and went home. Arnold identifies the day by an entry, made in his day book, of the labor performed. He has been, with his book under a subpoena, duces tecum, from the prosecution, and they have not called for the production of the book here. He admits that he was once in State’s prison in New York, but it was thirty-eight years ago. lHe was pardoned by Gov. Clinton, soon after his conviction, on the discovery that his conviction was unjust. He has since led. for aught that appears to the contra ry, a blameless life, and he stands unimpeached. Astute counsel perplexed his mem ory about the date when he made a visit afterwards to Brooklyn, but he was abun dantly corroborated as to tte facts of the visit, its purpose, and the occurrences connected with it. Mrs. Fitch, the widow, corroborates him conclusively by the statement that she saw him and Filley come together to the house in the afternoon; that Filley had fish, and she remarked to Mrs. Toll, who was then visiting her, that it was a pity those fish did not comie before, as they would have had a nice pickerel for dinner. She identifies the day as the one on which Mrs. Toll, Mrs.

Dimmick, and Mr. Cross were at her house. Kane and Allen came up from the pond at 5 o’clock and then found Filley at liome. They went into the ballalley and were followed by a stranger named LA-x, whom they had not seen, neither on that day nor ever before. Harley Woodward, who worked upon a farm of Filley, says that on April 11th, in pursuance of an appointment made by Filley, he met him, not at his house, but at his barn, about sunset, with his son and Lake, and went with them to the pond to fish. After preparing wood for lights and kindling a fire, and when about to push off, Lake said he would return and he might perhaps want to go away before, Filley should get back; and Filley said ” Here-is the key that unlocks that room.? Phelps, Lake and Faulkner all agree that Corwin had the key in the evening and unlocked the door and gave Phelps and Lake the box. It is certainthat1Fley and Corwin did nct meet that afternoon; for Corwin came from Leoni to Mich, igan Centre that night, while Filley spent the afternoon and evening at the pond except the interval between 5;‘oelocck and sunset, and during that’interval, he was thereat his Louse.

Lakernmust ahave therefore received the key from Filjey at the pond,- and n-ust haw” -delivered it to Corwin when’he came there at night. You will Spare me a few moments-o comment upon the exceptions taken to i

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39 important testimony. Like the answers, given by the prosecution, to our exposure ofthe humbug of the matches, it consists of the after thoughts or subterfug,es of this brace of” miscreants.” After a fierce struggle between the counsel and the witnes, Peeler and Kellogg, that left their testimony undisturbed, and after the counsel found: that they could not shake Gager Cady from the position that he was now, as he al ways had been under the impression that he saw such a bundle as he described ly ing on the bottom of Phelps’ wagon, thev asked him whether it might not be somee thing else as well as a box? He answered. vyes. “May it not have been a great, coat?” “Yes, it might;” and then, after the lapse of a month,Lake appeared upon the stand and a great coat, with pale red flannel lining, was laid before him. H e then remembered that on April 1 Ith he took that great coat with him, that he laid it upon the seat because, first, the weather was too warm to wear it; secondly, the coat was inconvenie,tly small; and he supposed that the coat might have slipped from the seat into the box unnoticed; but he still resolutely denied that he separated from Phelps, or that they took a different route from that they had before described; and he stated, also, that at no time that day or night did he wear the great coat, although he was sick and was riding in an open wagon from 10 P. M. until midnight. When asked) what became of the coat when he arrived at Filley’s, he answered that if he took it from the wagon he hanged it up in Filley’s bar room; that, if he did not take it from the wagon, it remained therein; and so it must have been carried by Phelps to Grss Lake and back again. Yet Phelps had no other recollection about the coat than the fact that Lake took it with him in the morning, a fact stated for the first timne on. his examination at the close of the case.

Gentlemen, that coat with the red lining, if it had reallv been Lake’s great coat and worn on that occasion,would not have need ed an apology for its being too small! Peeler and Kelloggf would have suspected no bogus money in the plaid lining of a traveler’s old great coat, in the month of April. Gager Cady could have no impression of a bundle tied up in a red hand kerchief, if what he had seen was only a great coat lying on the bottom of the wag on. Badly as the great coat fulfills its office thus far, it fails altogether to explaime: how Phelps and Lake happened to; be coming up the Napoleon road, which they swear they did n )t travel at all.

Lake not only denies that he took the great coat trom the wagon and carried it across the fields, but he denies that he left the wagon, at all. Seacord was within a rod or two of the travelers and could not have mistaket the coat for a bundle. Mr. Taylor could not have mistaken a coat with red lining for a trunk tied up in a handkerchief, when it passed within three feet of him, anid was changed from side to side; and certainly Lake could have had no such care for am, old coat with red plaid lining as to have carried it across the fields on foot, when it could have been carried by Phelps in the wagon, and it was too warm to wear the coat when riding, nor could he have thought it necessary to lock it utip away from the children, in Filley’s store room. If he had been so careful of it,then he would have re membered at first his taking the coat with him and placing it in its depository. 2 The prosecution alledge that a person standing in the places described by BR. man and his son, could not have seen the arrival of Lake and Phelps under the s Mafras tree, nor could they have seen Lake, alighting from the wagon and climbing: over the fence and carrying such a bundle across the field. So confident were the prosecution of this that they challenged us to give them a view, obliging us to do. by declaring in the presence of the court that, no matter how many witnesses theu might produce to prove these physical impossibilities, yet that the defence would swear down the hills and swear up the vallies to contradict them. The view wane granted, with what result you know. I think you are satisfied that, standing where those witnesses stood, they could not only see all that they described, but. I had almost said that not}ing else could be seen there. You remember how.on re, peated trials, under that pale, clear shining sky, we recognized the bundle which,.

looked provokingly red, and that we distinguished always the person who carried&; it, and his dress, gait and walk, however he attempted to baffle us. But, gentlemen, grantthatBeman and son were effectually discredited, there would still remain undisturbed the testimony of Peeler, Kellogg, Cady, Secord. Taylor, Arnold, Toll, Luce, Cozier, Cuykendall and Mrs.

Toll. The testimony of ei

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40 ‘her one is sufficient to overthrow utterly the evidence given by Lake and Phelps. The testimony of all these witnesses corroborates and establishes that of Beman and his son, and the mass taken together is insurmountable. 3. It was necessary for the prosecution to rebut the evidence that Phelps was -seen at Leoni that morning alone. This was done by after thought the fourth. Lake and Phelps were recalled to the stand and testified that at some timfe previous to April 11th (Lake says a fortnight, Phelps says a month) they, Lake and Phelps, were passing from Mich. Centre by that middle road which led past Penfield’s mill that they arrived at Beman’s corners, turned to the left and took the road to Leoni; that Lake left the wagon opposite a field, and entered it to speak to Corwin, whom Lake supposed he saw there; that Phelps passed on; that his wagon struck a hoop at the corners, the horse took fright, ran away, was reined in by Phelps and fastened at Cuykendall’s tavern. This device, gentlemen, is quite too artificial. It could scarcely be supposed that Phelps’ horse ran away at precisely the same hour, and at the very same place and tinder the same circumstances, on two differ eat days. And is it easy to believe that Phelp3 and Lake are accurate, and so ma ny other witnesses in error about the day when the occurrence took place? It is hard to believe that Lake should have left the wagon on so flimsy an ex cuse, for it was at 11 o’clock in the morning, and yet he mistook the person in the field for Corwin, whom he knew as well as you know me. Lake says, however, that he followed the wagon on foot, and joined Phelps at the house after the horse had been fastened. Phelps and Lake have not attended clearly to the details of our evidence, and therefore they alledge that the horse was frightened by a hoop instead. of the jar produced bv passing over an open sewer, and both of them describe him as being fastened, after the accident, with his head westward instead of eastward!’ Again, the journey was utterly without object or end. They say they went to Michigan Centre to see the defendants. They knew that Fitch was not there, but at Lansing. Thev say that Mrs. Filley said Filley was absent, but they do not say she told them where he was. Corwin, Myers, Barrett, Hay, Penfield and numereous others of the defendants then lived at Michigan Ceutre and in its vicinity. They neither looked ror inquired for them. They went out of their road half a mile to Leoni, to see the defendants who resided there. They neither found nor searched for any of them, altho’ Williams boarded in Cuykendall’s house where they say they stopped, and worked close by. Besides, they saw Charles Cuykendall, the son, instead of John Cuykendall, the father, who says that he was standing upon the stoop, and received Phelps on the occasion when his horse ran away. Charles ,Cuykendall is not brought to sustain their subterfuge. But Phelps and Lake swear that they did not on that occasion, see either Mr.

Faulkner, Mr. Toll, or Mr. Luce or John Cuykendall, or Mr. Kellogg; that is to say, they allege they saw a person who was not there and deny that they saw five persons who swear they saw Phelps ‘there on the only occasion when his horse ran away. Lake says that for aught he can remember thev went home without dinner, but Phelps on urgent necessity re members that they obtained refreshments not at Cuykendall’s where dinner was on the table, but at Haddan’s grocery below. Their journey was therefore without an object and without results. They kept a diary of theirjournies and labors in the -service of the Company. They gave its contents ftilly on the direct examination. This journey, when, according to their account, the horse ran away, was forgotten altogether and was not put down in the diary, and it is only remembered now, because it becomes necessary to explain and rebut the testimony of the defendants. Unfortunately moreover for the credit of the invention. Phelps had denied on his previous cross-examination that his horse had ever run away with him; at all, in Leoni. And what is still more unfortunate Wm. H. Hudson testified, before this question Jerose and when it could not be expected to be material that on the night of April *lth, at Filley’s tavern Phelps told Fitch that his hoorse had run away that day, and spake of it as an occurrence that has happened that very day and never before. Permnit me to recall now, Gentlemen, wbat has, we trust, thus far been demon filtrated. I

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41 1. That no such conspiracy as is alleged ever existed. 2 That the question of such a conspiracy is an immaterial and false issue. 3. That the cause rests upon the evidence of admissions proved by Phelps and Lake only. 4. That this evidence of admissions must be false -first, because the pretended match was a humbug and could not have been used to fire the depot at Detroit;-secondly, because the matches were made,not by the defendants,but werefabricated by Phelps and Lake;-thirdly, because the matches produced here were not receivedfrom the defendants as alleged by Phelps and Lake, but werefraudulently placed by Phelps and Lake in the depositories where it is pretended they were found. These points establish three conclusive defences against the prosecution. Nevertheless, to remove all doubt and to enable you to satisfy the public that the verdict of acquittal which you are to render will be right and just, I shall first proceed to show that the admissions proved derive no support from collateral circumstances,secondly that they are rendered unworthy of credit; First by the depravity of the witnesses; Secondly by internal evidences of falsity in their narratives; and Thirdly by confict with facts incontestibly estal-lished. First, there is a total want of corroborating circumstances. You will necessarily inquire whether the Depot at Detroit was burned by an incendiary at all. This is a circumstance indispensable tobe proved. The prosecution have undertaken to prove it and have failed. The balance of proof is that the fire was the result of casualty. All parts of the building except its outer walls were of combustible materials. It was eight hundred feet long by one hundred feet wide, with wooden roof and floors which were pierced with innumerable hatchways, and the roof was surmounted by three cupolas with open windows and more than a hundred hatchments or scuttles. If you say that the mineral paint upon the roof and the mortar between the floors were a security against accidental fire, I answer that the building was actually consumed by that element. It was rendered extra hazardous by machinery which, although it may have been properly constructed, is not proved to have been examined or oiled on the day before the fire. Workmen had been employed with lights that ‘ight from seven until eleven o’clock in the wheat bins, and it is proved that the wheat bins were lighted with tallow candles placed in narrow, shallow til sconces suspended against unsmoothed posts. It is proved moreover that can dles had been known to be taken from the sconces and to be secured only by being placed in a bed of tallow, melted for that purpose upon the top of the bin. It is proved that combustible merchandize such as trunks opened and bags ot cotton, were deposited in the building under the cupola, and there may well have been in the great variety of commodities stored there, matter that would have taken fire by spontaneous combustion. At least there was abundant food for fire, when once ad mitted. That is proved by the rapidity of the flames.

The building stood upon the wharf and was liable to take fire from the sparks of steamers arriving and departing by day and by night. It was exposed to fire also from within, to be communicated by engines which arrived and departed at all hours of the day and night. The cu pola, hatchments and dormant windows served to create currents of air by whiclk burning cinders would be drawn inwards and upwards, and when extinguished,would be deposited in heaps in the cupola and below. If you say that the engines of steam boats and Locomotives were furnished with sparkcatchers, I answer that spark catch ers are not sure preventives. If perfect, they at least wear out. Three several cases have appeared in proof during this trial of buildings, wood and forests burned by passing engines, although they were provided with the same means of prevention.

You have heard Mr. Smithi declare that his mills in Clinton were burned by ma ehinery just like what was ill the depot. A fire occurred scarcely ten days ago, at Chi. eago in a storehouse having a steam engine guarded just as the stationary engine here was secured, and it is supposed to have taken fire from the engine room. Ten acres of the site of this city, including the ground on which we stand, were burned over by a vagrant spark from a passing steam boat, which was provided with a spark catcher for all that we know. . 11. 1.:: -:,. I

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42 In regard to the place where the fire originated half a dozen witnesses declare, with confidence, that they arrived early at the conflagration, and that the fiwlbroke out, not through thee seu in the roof, but in the Cupola. These witneooi are Capt. Turner, Patrick Rowland, B. F. Bush, W.

H. Green and C. Davrinac But~ these witnesses are opposed by as many, to wit: R. Jones, Mr. Johnson, Wm. Har sha, C. W. Sims, Mr. Tuttle and John Campbell, each of whom declares that from some commanding positioln he discovered the fire immediatelv after it appeared, and that it broke out through the scuttles in the roof on the north side, half wayv between the eaves and the Cupola before it appeared in the Cupola. One of the plaintiffs witnesses says he ascended the stairs and found the fire burning the interior below, before it burstthrough the Cupola, and that then it had reached only half Ad ay to the dome or roof of the cupola.

Criticisms may be made on the testimony of ecch of these witnesses, but the result would boo that all were equally truthful, land owing to the pe culi.ar cir,.umstances of the occasion all equally liable to mistake concerning the sub ject upon which they have testified. As it is not proved how the fire originated, so it is now and will forever remain uncertain in wi at part of the building it was first di’ covered. But the prosecution must n,akeout on theirside that the fire originated in the Cupola. What is not proved beyond a reasonable doubt in a criminal case is not prov ed at all, and therefore you will assume that not only is it not proved otherwise than by the admissions that the depot was burned by an incendiary, but that it is not pr6 ted that the fire broke out in the Cupola. But, Gentlemen, if the fire did occur in the Cupola, what then? It does not aid the people’s case. TI’he fire would have originated there more likely than elsewhere, if it had arisen from burning cinders discharged by an engine or by a a steam boat, or even from heated elevators; and it wou’d have been seen there as likely as elsewhere if it had arisen from selfconsuming merchandize which was under the stairs lI ading to the Cupola. We have already noticed the impossibility of firing the building with such a match as is described, and the impossibility of carrying it through the streets and the bands of workmen in the depot. Gay was the last manl in the city or in the State who could have performed such an act unobserved. He was equally profligate and notorious. He could not have passe, in and out of the depot even in the day time, with or without such a box as is described without having excited the most intense suspicion. But the Counsel for the prosecution say that Gay confessed the burning, and that he would not have confessed if not guilty. I reply, that the testimony shows that Gay confessed he burned the depot for a reward of $150, and that he had engaged to burn the new one fori$200, with the objects of screening one AL eiate in crime and punishing another. The man who would burn a depot for $150 would also on a promise of impunityand with an inducement of $150, or even let confess such a crime that had never been committed, and charge others with being accessories to crimes of which they had never heard. But we shall consider Gay’s. claim to credit hereafter. Thus it results: (1.) That it is not proved the depot was burned by the incendiary named, and (2.) That it is not proved that the depot was burned by an incendiary at all, nor what is equivalent, that the depot was fired by casuality. The prosecution seized upon an alleged change of Gay’s pecuniary condition ma a ircumstance to corroborate the evidence which charged him with having burned the, depot. Certainly, they proved that he was very poor before the depot was burned, and they proved that after the fire he was found in possession of money and property equal in value to $150. It devolves upon us, therefore, to show that Gay at tht ime obtained that sum from another source. We have proved bv Samuel Mead, that in the month of October, previous to the fire, he paid Gay fifty two dollars and a Half and that he had two notes of $50 each, and we have proved by Erastus Gay and by the People’s witness, Cicott, that G. W. Gay received for these two notes $96,80, making in the whole $149,30. This circumstance of Gay’s improved fortunes thus disappears, and the prosecution ia left without even a shadow of a circumstance to~ sipport the allegation that the depot was burned by the alleged incendiary.

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43 It will my duty labor in the next plane to show that the witnesses by whom the ad. missions thus uncorroborated are!proved, are unworthy of credit by reason of their depravity. Who are those witnesses. GEORGE W.

GAY, HENRY PHELrS, and HEIiAN LAKE. I call Gay a witness for although in name he was once a defendant, yet he was dead before this trial began, and, being dead he was no longer a defendant Before the corpus delicti was proved; before a plot or a conspiracy botweern him and the defendants was proved, if any has been proved at all, his unsworn declarations made when living were received in evidence in this trial on the miserable pretence of a promise, given by the Counsel for the People, that they would afterwards bring these declarations home to the defendants. I call the attention of Courts and Lawyers, whoever and wherever they may be, to whom these proceedings shall in anyvwise become known, to the consideration of this extraordinary proceeding. I beg leave to remark concerning it. First that the admissions should have been postponed until after the fulfilment of the promise. Second, that if the declarations of G:ey had been brought home to the defendants and confirmed by them as promtised, that then the declarations of the defendants so confirming would have constituted the evidence which ought to have been submitted, and that those confirmations would have rendered the admission of these hearsay declarations of Gay unnecessary and superfluous.. But the declarations are nevertheless here, and so practically Gay, the Principal, al. though never sworn, and although he is dead, stands before the Court a witness to prove the corpus delicti as well as to charge the defendants with being accessories to his own crime. The question now is upon his credibility. A few preliminary explanations of principles before I discuss the witnesses Phelps and Lake.

Conviction of an infamous crime is, by the commou law, a disqualifies.

tion. No person, so convicted, can testify at all. A pardon restores competency, but leaves the credit of the witness to the discretion of the jury, under the circumstances of the case. The laws of Michig(an allow a convict felon to be a witness, butrefer the question of credibilitv to the jury in the same way. The principle of these laws is thus explained by authority: Under the general head ot exclusion, becausw of insensibility to the obligations of an oath may be ranked the case ofpersons infamous-that is to say, persons who, whatever many be their professed religious belief, have been guilty of those heinous crimes which man are not generally found to commit unless when so depraved as to be not found worthy credit. The basis of the, rule seems to be that such person is morally too’ corrupt to testify that he is so reckess of the distinction between truth and falsehood, and so insensible to the restrning force of an oath as to render it extremely improbable that he will speaksl the truth at all. Of such a person Mr. Baron Gilbert remarked that “the credit of Mis oath is overbalanced by the stain of his iniquity.” You see then that it is not bad character nor conviction of crime that constitutes the cause of disc.redit, but it is the deprt’ty ofmund of which bad character or conviction is the evidence. Who was George W. Gay? A man of fifty years or upwards, who had bees conieted of more than twenty crimes, ranging from petit larceny to murder, who had been more than once a tenant of State Prisons in several Stas, a man who liyed in daily association with culprits, and who at the time-kept ashou.se of ill-fame, and thus subsisted by the debasement of one sex, while he harbored the most depraved of the Qher. He, eagerly accepted of Phelps’ proposition to burn the new depot in Detoit, and to charge the’commission -of the crime upon his recreant associate Boyce and to suborn witnesses to fasten it upon him, and thereby procure the discharge of Van-Sickle, while he would at the same time secure, as he alleged, a double reward of $*200fromsupposed enemies of the Rail Road Co., for burning the depot,s and $100 0 from the Railroad Company, for false information concerning-the incendiary Need I aay more to show that-Gay’s character was so irnfamous as to deprive his unsworn, uncorrobora testimony of all claims to credit? Henry: Phelps was convicted and underwent nearly in its whole extent the pealty of the -crime of stealing horses. He say 8 he was unjustly convicted. That was his plea:on trial, but it was proved to be false. -

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44 Heman Like was convicted of aiding a thief in his escape from prison, and suffered the full penalty of the law. Counsel deny that the crime of which he was thus convicted has rendered him infamous. The distinction is a technical one, not worthy of an argument. Larceny is an infamous crime.

He who assists a thief to escape from punishment was probably himself an accomplice in the crime of the thief, at least he must be moved by sympathies as immoral and criminal as the act of larceny itself. Thus these two witnesses stand before you as men convicted of infamous crimes, men “the credit of whose oaths, although it should be without any contradiction or impeachment, is overbalanced by the stain of their iniquity.” It is certainly a work of supererogation to prove that a person convicted of an in famous crime is esteemed in the community in which he lives unworthy of credit, for that is only to prove in an individual case the soundness of the legal maxim, “that infamous crimes indicate a mind insensible to the obligations of an oath.” I think this is the first case in which the prejudiced state of the public mind has re quired, that a witness who had been thus convicted, should be impeached by his general bad reputation in regard to truth and veracity. That proceeding has been adopted in this case in regard to Phelps. But who is Henry Phelps? He is the prosecutor on whose naked oath fifty citizens were arrested, and upon whose oath chiefly if not altogether, the indictment in this case was found. Upon his oath, sustained by his confederate Lake, this prosecution is suspended. He was born in Bloomfield, Ontario County, N.Y., in 1814, a son of respectable parents who lived in easy circumstances. He removed with them to Wheatland, Monroe County du, ring his childhood. He received an education, which, although not a liberal one, surpassed what was ordinarily obtained in country schools and academies,and which qualified a vigorous and shrewd mind sufficiently for any kind of business, in any, department of private or of public life. He came to Michigan with his parents, and settled in Highland, Oakland County, in 1835. He pursued no regular occupation there, but was forward and active. He conducted litigation in justice’s courts, and was at that time called (according to the testimony of one of his friends) “a fine fel low.” He was elected Town Clerk, and commissioned as Captain in the Dragoons of the Militia. But nothing that he began was ever finished, nothing that he plant ed ever ripened. Political preferment ceased, when rumors of falsehoods and frauds gained circulation. The Dragoons who enlisted under his command never equip ed, and they were ultimately disbanded. After five years thus spent, he went to Michigan Cenitre, where Abel F. Fitch resided, and there Phelps bought a distil lery and its stock, with drafts on a person in New York, who could never be found. After six months the distillery reverted, with losses, (never yet reimbursed,) to its former owner, and Phelps immediately thereafter became a merchant at Millford,near Highland, his former residence. A month or six weeks passed away, and the stock of goods was suddenly and mysteriously surrendered to the merchants at Butffalo, from whom it had been purchased, and Phelps resumed his business as an advocate in justices courts. He married about this time, and the counsel who defead bim here say he has children. His affidavits were questioned, his arts in conduct. ing trials suspected, his reputation waiied, and after three or four years he was convicted of the infamous crime which has been mentioned. He was subject to oe casional epileptic convulsions. He feigned them during his trial, and affected sickness to avoid judgment, but without success. He feigned illness to excuse him self from labor in the prison. Suspected and closely watched there, he failed to pro pitiate the police until the sixth month in the fifth year of his term had elapsed, alnd then he was pardoned. On coming out of prison he gathered his family in his ancient home; but habits of regular industry and domestic occupation disgusted him. He invited his associate Lake, who had just been discharged from prison, to join him but at first without succes.

After the lapse of about a year he hired himself to thes District Attorney of the United States, in the occupation of what is call[ a stool pigeon, that is, one who for hire joins and leads villains in crime to betra them to justice; or, as it was described by the Counsel for the Prosecntion, the business of a Rogue “set to catchRogues.” While in that capacity, he renewed the acquaintance

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45 which before his imprisonment he had maintained with Gay, and in the very first interview opened to him the plot, if he is to be believed, to screen a culprit from punishment, by a false charge of the crime of burning a depot, upon an unoffending persos. Having drawn Gay into that scheme, he offered himself to the rail road company to be enrolled, and was accepted, at a regular salary of forty dollars a month, as a member of their band of spies and informers. His engagement was to furnish sufficient evidence to bring Abel F. Fitch and his supposed associates to tral, for some felony against the railroad, out of Jackson County. He is cunning, plausible, bold and persevering. There he sits. Men imagine that they see his history written in his form and features. They say that he looks lean and mali *ious, and that he “‘Will look hollow as a ghost, “As dim and meagre as an ague’s fits.” They say (superstitiously perhaps) that “So he’ll die, “And rising so again, “His mother, when she shall meet him in the court of Heaven, “She shall not know him.” He is impeached by one hundred and twenty-one witnesses, all of whom say his repation for truth and veracity is bad, many say very bad; all say it is so bad they would not give him credit on oath. He has lived in Sylvan, since he came out of prison. Sylvan, Grass Lake and Sharon are contiguous. These three towns send one hundred and eleven of the witnesses. Twenty-five omitted to state the distance of their homes from Phelps’ residence. The average distance of the remaining eighty-six is two miles and a third. One of these, an honest and sensible German, persisted in declaring that his reason for discrediting Phelps was, that his heart told him not to believe a man who had been in state prison. All the others testified from a knowledge of Phelps’ reputation, before he went to prison, or before or after this prosecution began: twenty-seven of reputation since he came from the prison, and before as well as after the prosecution commenced; eight speak of his character before he went to prison, and not afterwards; six of his character while in the state prison, and seventy-seven of his fame, all the way through from 1840 until now. These witnesses when cross-examined by the Counsel for the People and required to describe the rumors which have ripened into this withering, blasting impeachment, say that he is charged with perjury, larceny, employing labor without paying its hire, travelling under mysterious and suspicious circumstances, swearing through the Courts causes in which he is employed as an advocate, false pretences of having re covered large sums of money from the State for unjust imprisonment, feeding his horses with his neighbor’s wheat and oats, offering to lend fictitious sums of money on mortgages, pretending to imaginary contracts for grading the Railroad and building depots, false pretences about the title and quality of lands, baseless pretences about an agency of a factory that has no existence, hypocritical pretences to piety, malicious swearing against his best friends for money, a universal suspicion of dealing in coun terfeit money, and associating with and harboring depraved and abandoned men. Among the witnesses are laborers, mechanics, farmsrs, a lawyer, doctors, constables, magistrates, judges, members of the House of Representatives, Senators, and many lay members and officers of various religious societies. One of the witnesses is a brother in-law of Phelps, and a large number of the witnesses quote his father-in-law for the reputation which they assign. That father-in-law refused to appear’under our subpoena, and was not produced to repel the impeachment. When this singular exposure was made, the learned District Attorney remarked that it was said in the Scripture that “a man’s enemy should be they of his own household.” How guilty a life must that be that forfeits the enjoyment of all the natural affections! When you consider the number of these witnesses, their occupation and character, their advantages of acquaintance with the subject of their testimony and their relations to the witness, and when you consider that 86 of them are drawn from a circle of les than three miles containing his residence, in a purely rural district in the inte rior of the Peninsula, I think you will admit that an impeachment so effective, so Naive, was never before prgto4
i a court of justice.

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46 Gentlemen, you will be on your guard against the faIse issues raised to weaken the force of this impeachment. Efforts were made in some instances to discredit the witnesses themselves. Aliowall that was done in that way, and I think it amou’nts to the facts, that one of them was indicted and convicted of an assault and battey on a woman 11 years ago; an offence that I do not claim ought to be forgiven wif. out deep penitence; that another was convicted of an assault and fined $10 withi a shorter period; and that a third one suppressed a-fact whicii hefeared would exp6se him to the hatred of Phelps. You have been told, in the second place, that many witnesses did not recollect not give the names of those from whom they had derived the character which they assig ed. Gentlemen,when a character is bad, notoriously bad, universally bad, it is the ex ception of favorable speech only that can be remembered. If you declare that a season was wet, you may be able to specify the days of sunshine but not the days of storm.

But I think that before the impeachment closed, the prosecution found the authorities given quite sufficient. It is certain that when the whole popu lation of the neighborhood came as one man, and united in confirming the testimony of those who had come before, that the correctness of all was established. It was insisted that the period within which the character of the witness was to be proved should be limited to two years succeeding Phelps discharge from prisoand anterior to the commencement of this prosecution. But, Gentlemen, you judge of the soundness of a tree by inspecting not-the bark, nor-the exterior circles, but t,e entire trunks If it be unsound throughout, you will find it hollow at the heart. The argument that you shall not enquire as to Phelps character before he went to prison assumes that punishment restored the character, forfeited by convietio.  3ut this position is manifestly unsound. Again, the Counsel insist that you shall exclude testimony of the character of the witness arising from discussions which haveoccurred during this trial. But that is just the period in which his character has been a subject of discussion.

It is true that you must allow for the effect of sympathy with the defendants in considering such, testimony. But these witnesses have no such.sympathy. With one or two exceptions, no one of them is related to any of the defendants. They live at distances of 10 or 12 miles and more from them all. For the most part, they never had, nor have they now, an acquaintance with the defendants. The excitement Qut of which this controversy arose never disturbed the people of Sylvan nor the people of Washtenaw county. Those who testify are neighbors of Phelps. The influence of this excitement tended to awa ken the sympathies of Phelp’s neighbors in his own behalf, and to rouse them to anger against th, defendants.

Again, the prosecution argue reformation of the witness, from the fact that du ring the two years, since he came from States Prison he is not proved to have com mitted new crimes. But you will remember that the form of inquiry prescribed by the court forbide the defence to ask what was the general character of the witness and limited us to enquire for his reputation for truth and veracity only. Neverthe less the recapitulation of reports as to his general character which transpired on the cross-examnination is, I trust, sufficient to satisfy them and you on that point. And now Gentlemen. how has this imnpeachment been answered? 118
persons have been sworn to sustsin the general reputation of the witness for truth and veracity. Of these one says on cross-examination that his reputation is mixed, and three that they do not know where Pheips lives.

One that his reputation is divided. One that he docs not know even one neighbor of Phelps. One that the majority of neighbors say his character is very bad. One, Samuel Chadwick, says that he himself took his neighbors watch clandestinely, carried it to Detroit, and wore it until its loss was advertised and-that then he delivered it up and demanded $1;,, upon the false pretence that he had paid that money to reclaimr it from the thief.

Sixteen witnesses say that they know nothing ot’ Phelps’ reputation since 1l42, and that then it was dubious; one that he does not know his reputation where he lives; one that his reputation is bad where he lives, but good elsewhere; one that he does not know Phelps; thirty say either that they do not know his neighbors or do not

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know his reputation among his neig)nbors; one that he is not competent to judge; one that some say his character is good and some bad; one who lives thirty miles from Phelps that he obtained his character by inquiries on a commission for that purpose from the Railroad, and three that they do not know his character at a:ll. All the witnesses without exception, declare as the grounds of their testimony when favorable to Phelps’ character, not that they have heard it discussed, and then pronounced good, but simply that they have never heard it discussed at all, and all of them who testify to a knowledge of his character in the neighborhood in which he lived, rely upon the fact that they have not heard his neighbors discuss it and yet they refer in that connection to the very neighbors who have already come here and have pronounced his character bad. Of these, so called, sustaining witnesses, fifteen came from Sylvan; eleven from Sharon, an adjoining town; two from Manchester, distant five miles; twenty fromr Lima, near where Phelps resided before going to State Prison; five from Freedom, which I believe adjoines Sylvan; sixteen from Oakland Co., where he resided before going to the State Prison; two from Chelsea, six miles from where Phelps resides; thirteen fromn Dexter, fifteen miles from his residence; eight from Ann-Arbor, twenty-five miles distant from his residence. You will judge at once of the extent and accuracy of their knowledge of the subject on which they testified when Istate that eighteen described the distances at which they resided from Henry Phelps and that the average of those distances was eleven and a half miles. The law, gentlemen, requires that the reputation whether good or bad which is given in evidence shall be that which the witness sustains in the very neighborhood in which he lives, or among these persons with whomn he ordinarily transacts business affairs, and that it shall be found by those only who live in that neighborhood, or who have other good opportunity to learn the character they describe. Thus while a more successful impeachment was never made, it is quite certain that no impeachment was ever more unsuccessfully resisted. Such is the general character of Henry Phelps the prosecutor, and such his reputation for truth and veracity in the neighborhood in which he lives. 1 ask you now to consider the circumstances under which he appears. He testifies under the impulse of an overpowering necessity. A stipend of $40 a month as an informer is his only resource for support. He is under arrest for conspiracy and in instituting this prosecuti)n. His fortune involves two alternatives; one that he carry the prosecution through a-nd cause these defendants to be sent to the state prison and thus;establish a claimn to be restored to that social confidence which he so early lost; the other that he shall be convicted of wilful and malicious conspiracy against these defendants with perjury and subornation of perjury and return, after a guilty respite of two years and six months, to the State Prison from whence he came. “- HE
that steeps his safety in trae blood “Shall iad bLtl bloody safety and,: nttruoe.” Phelps testifies moreover under the impulse of a studiously concealed but malevolent and persevefing revenge against Abel F. Fitch, who was originally the chief mark of this fearful prosecution. I lay aside the testimony of William Dyer on that subject, which was struck out for want of certainty as to the person to whom the words, which he had proved, reterred. I cheerfully lay aside the testimony of John Hawley which he has confessed to be false. Trhe profession which Phelps has led has exposed hiin to enemies among the associates and confederates whotn he has denounced and betrayed. Many sutch persons have attempted to obtain retaliation-through this suit. Some of them imposed John liHawley (who of course was unknown) upon the counsel for the defence. Others who offered tlheinselves were discovered and rejected. Hawley’s confession impl;cated no one of the defendants. He cotnnmmunicated his pretended knowledge to no defendant before he testified, nor did any reason exist for disbelieving thA facts he related or doubting “his truthfulness. These supposed facts were in harmony with similar facts abundantly established. He was neither supported nor justified,nor attempted to be screened after the falsehood was made known. We at once moved to strike out his testimony from the case and resigned him cheerfully to the punishment which he deserv 47

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ed. The counsel for the People felt or seemed to feel great surprise at his wicked temerity, but let me tell them and you that in recoiling with so much horror from that silly fool, John Hawley, and in accepting the testimony of Gay, Phelps, and Lake, and in pressing conviction upon it after the exposures which have been made here, they have “strained” at a gnat while they have “swallowed” some very large camels. I am to prove to you the malice of Phelps against Abel F. Fitch. Ulysses T Foster testifies that in the State Prison in 1849, Phelps (pointing to Fitch, who was passing by) said “he is the means of my being here. I will have revenge or satisfaction.” Calvin Beebee says that ill April, 1849, when he announced to Phelps that a pardon had been granted to him, he replied, “I am in the prison through the influence of Abel F. Fitch and others. If I live to get out l’ll make them smart for it and give them the same feed they have given me.” Wm. B. Laycock says that on the night in January last, when Phelps and his wife were sleeping in his bed, he heard her ask him whether he was going to see Fitch the next day, and whether he thought he could do as he had talked of doing. Phelps replied he should go and see Fitch and if Wescott would do as e agreed and stick by him, he thought he would wome a good drive. The same witness further testifies, that, Phelps in returning from Michigan Centre the next day, after having pretended a desire to purchase Fitch’s oxen, said he “would have Fitch in the limbo,”

and when asked why, as signed the poor reason that Fitch had refused to sell him his twin cattle. Mrs. Phelps contradicts Laycock as to the first of these statements, but what is the value of her testimony? Is her stake in this prosecution less than her-husband’s? What is her independence? I will not trespass upon the charities due to a woman and a wife, by raising a question whether she knew the dangerous ways to which he had addicted himself. She had a sick infant in her arms, and may well have forgotten a remark, the full effect which she did not comprehend. I can exouse her for error if she commits it on the ground of her fidelity to her unfortunate husband She is not the first woman who has said, ”’ I ask not, I care not if guilt’s in that heart, I know that I love thee, whatever thou art.” But if you must give full effect to the evidence of Mrs. Phelps, still it leaves tbe testimony of three witnesses who give proof of profound malice and are unopposed. Gentlemen, you will next recall the deportment of the witness Phelps, during the trial. There is a living and beautiful harmony in all truth. He that is truth. ful to-day was truthful yesterday, and will be truthful always. Candor, modesty, meekness and gentleness, are inseparable from truthfulness. Recall the eagerness of the witness to volunteer testimony injurious to the defendants, by interpolating his answers with matter foreign to the question propounded. I give you only one instance of this. On cross examination he was asked if he had seen Gay have counterfeit money, he replied, “yes, $50, and he said he got it of Fitch.” Recall the scene when he impudently confronted Wm. Dyer, who was a respectable citizen of Indiana, and roused all the vulgar sympathies around him, here in open court, falsely charging that respectable person with being a horse-thief in disguise. Recall the fact oftPhelps appearing in the court-room, with his coat defaced by a pretended mark of a ball which he alleged had been fired at him on Woodward avenue, in the streets of Detroit, in the night time. What could he have been doing in that quarter of the town at such an hour? Do you believe that these defendants assailed him at that distance from the windows of their prison? Do you believe that sympathising friends who followed them here attempted his assassination? If so what has secured him against assassination since that time, now nearly three months? Recall his barroom denunciations of Amanda Fitch for perjury, and his rude affray with J. B. Toll, her defender.

Recall his charge on the stand that Mr. Frink had disguised himself to procure or instigate his assassination. Recall his impudent intrusion upon you in your journies to Michigan Centre, when yole went to survey the scenes described in the testimony, and to test his own veracity Recall his still more impudent intrusion upon the presence of one of the pannel in 48

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49 his Visit without his associates, and without the presence of the defendant’s counsel to the same places. Recall him as he has sat here among the ten distinguished and highly respectable Counselors for the people, nay, at their very head, advising if not directing the course of the prosecution at every stage since his own examination was closed.

Enough then for Henry Phelps. “Room for the Leper! Room!” Few words will suffice for HEIVAN LAKE. His part is subordinate. He is only a shadow of Phelps. His testimony an echo. His history therefore, need not be recited at length. On arriving at manhood, he learned something of engineering, and did nobody knows what till his depraved proclivities bore him into the State Prison. There he was a friend and enemy of Phelps by turns: In the sunmer of 1849, Lake declined Phelps’ invitation to join him, but in thie winter following, he accepted his proposition, to work, at he knew not what, for the R. R. Company under his direction. He is a “gay Lothario,”

and having been introduced lnto Gay’s house as a spy for the R. R.

Company, he atones for the unkindness of betraying Gay, by taking the vacant place in the bed of his wife immediately after the husbands arrest, a place which he retains with touching fidelity, when by Gay’s death in prison, that wife becomes a widow. Provided with fie tickets for himself and paramour, Lake openly traverses the State with her in the Railroad cars-while your wives and daughters, and all other good citizens with their wives and daughters pay full charges on the great public thoroughfare. He is well looking, and his fingers and bosom, are adorned with rings and golden charms, tokens of manifold and meritorious favor.

But he is a man of feeble mind and executes only indifferently well the plots of Phelps. In short he is an illustrat,ii of the truth that “a pretty fellow is but half a man.” He testifies from a diary, in which even the facts observed by himself are recorded by his master. These are the three chief witnesses of the prosecution-Gay, Phelps and Lae It is easily seen, that the plot before us is the work of Phelps alone, conceived and contrived for his own gain and to gratify his own revenge; that the agents of the R. R. Company misled and deceived, have furnished him redundant means and subordinates of his own choice. Gay while living, if not an instrument was a dupe. Lake is manifestly an inrstrumentin his hands. But gentlemen, the malice of Phelps, cannot be understood without knowing the chlaracter and circumstances of him who was the object of his revenge.

Abel FFitch was a native of Connecticut, aged when he appeared before you 43 years He had a strong mind and considerable education. He came to Michigan in 13‘7, and with a fortune belonging to himself and wife, which was small in Connecticut, he was a rich man in the oak openings of Michigan. No man, not even one among all that cloud of accusers which gathered around him here, ever charged him with incincerity or falsehood.

He whom you saw brought here a felon on the 19lth of April was on the 7th of that month, elected and without a disenting ballot, as I have bees told, Justice of the Peace and Supervisor of his town. He was gentle, just, andt humane, the friend and patron of the poor, and their gratitude crowned him with un equaIled popularity. You have seen the house of Henry Phelps in Sylvan. You remember how dark and desolate it was-its low naked walls, its windows glazed with clapboards, its scanty furniture. its doors closed and suspiciously fastened, it master and mistress abroad all over the State, looking up long lost relations, while a malefactor was pursuing his dangerous vocation-unseen. You remember th0 half thatched barn that was empty of everything but refuse hay to conceal unlaw ful things in the manger. You remember the fuel gathered from the waste timber of the railroad, although the dwelling was almost in the midst of the forest.

Hovw truly all this illustrates the darkness of the spirit that inhabited there. You have seen also the dwelling of Abel F. Fitch, of Michigan Centre, shaded with planted with his own hands. It is neat, spacious and elegant. You remember thX prairie rose clustering over its piazzas and verandahs. Though the owner of X mansion was childless, yet its chambers rang with the merry voices of children Books, pictures and musical instruments meet you on every side. The garden ex i.

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50 ‘Hbits the flowers of every month from early spring till the returning frosts. Ample orchards yield the choicest fruits; a park filled with deer, and a lakei in which the -wild birds forget their native home, increase the attractions of the domain, That -domain extends over five hundred acres, and when” you saw it, was covered with wheat ready for the harvest, and cattle which proved not only the care but the en liaghtened taste and public spirit of a country gentleman. Was this the home of an incendiary, a conspirator, a felon? Were not these felicities of fortune enough to excite the malice of an enemy to the exaltation of revenge? EOf the other defendants it is enough to say that one, Smith, resides in Detroit, and %as unknown to the defendants living in the country, and entirely unconnect -d with them. The defendant,Gunn, who recently died, was equally unknown to them. The others consist of Mr. Burnett of Grass Lake, a gentleman of respectsable position as a surveyor and scrivener; Mr. Lemm of Jackson, who occupies :i4mself, I believe without reproach, in Justice’s Courts, preparing himself for the profession of the Law; Dr.

Farnham, a dentist of the same place; Mr. Gleason, who held a hutnble office in the State Prison; Mr. Warner of Jackson, who, I be iieve, has been a runner for hotels there,and some who are obscure farmeis,mechanics and laboring men, living in the town of Leoni. Among this large number, 2
ori:3 on!y ,are said to be habitually addicted to intemperance,and all the others are sober, industrious citizens. Some few of them have no moral standing, many others have lived blameless lives, and not a few hold a fair standing in the various Religious So,cieties, established in the central part of vour state. Their only crime against Henry Phelps was, that they were the friends of Abel F. Fitch. How could they have been otherwise? Having shown you that the evidence given you by the informers is not corrobor.-ated by external circumstances, and is rendered unworthy of credit by the character -‘f the witnesses, and by the malice which they bear against the’ defendants, I pro ceed to show that it is rendered still more unworthy of that credit, by internal evidences of falsehood. 1. We are required to believe, that Abel F. Fitch and the other defendants who resided in Jackson County, seventy miles from Detroit, employed a notorious and profiigate keeper of a brothel in this city, to burn the depot here for a compensa -:ion of one hundred and fifty dollars, and furnished him with an instrument for that :purpose, made by themselves.

Yet, excluding the testimony, consisting of admis sions, reported by these informers, there is no evidence that any one of these deifendants ever saw or ever heard of George W. Gay, and even the informers do not presume to bring home to more than two of the defendants a knowledge of that person, and they give no evidence of that acquaintance, except admissions easilv fabricated. Phelps reports Fitch as saying to him in Detroit in February, that he had seen and conversed with Gay during his visit there, and Lake reports Mount as sayng that he had known Gay from his childhood. Such an acquaintance could in -ither case have been proved by witnesses as a distinct fact, if it had existed. The -ant of such proof stamps the statements with falsehood. Fitch was at least a man of worldly prudence.

He had fortune to save, fame to maintain, and personal liberty to preserve. If he had meditated and contrived so great a crime, would he have employed as an agent a person, whose house was not only a place of public resort, but under the constant surveillance of the City police? If he had meditated such a crime, would he have chaffered about among poor and obscure farmers and laboring men, and have demanded contributions from them, and have made payment for himself by turning out cattle for his share.of the fund? The informers require us to believe that at least the following sums were provided -r by subscriptions, to wit: the burning the Depot in November $150 do do new Depot at Detroit, in, April $200 do do Depot at Niles $200 do do Depot at Marshall $200 do do Depot at Jackson $200 Total $950

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v….1: _:-./…could aSrt’S greatly egoedii;the ability of th aleged contributors Such a,sumi Cub’ not have been raised by Fitch and hiis supposed associates, without the use tbf i’Pra with io6rtgages on pe nali and reaL state, -notes with endorsements and the orali’ tion of discount which would have left ttaeets that would have: etrayed the:t ouid action in:Leoni, and in other -towns -nd cities,,where the loahn 4discount h ah havei been efected. Sir-! (to -Mr-White,aJui;ros-you are said’ t’ be rich. I glad-of it. You could not, t,diay payme five hundredd dollars, without th6euse of a check, or note, or bill that would draw in two, three or more witnesse of the trans action. Again, we are required to believe that Abel F. Fitch,;having a pair of fancy cattle that had been, or were notoriously-preparing tohbp exhibited at,the state fair, and were even known throughout the State, authorized two incendiaries to take and drive them away immediately on returning from Niles, after having burnied the Rail Road De pot there; and this too when the felons were to proceed to Niles, and return from that place openly in thecars of the Rail Road Company, whose Depot was to be destroy ed, and when every agent and servant of the Railroad was known to be acting as a spy upon his conduct by Fitch himself. The-statements-of Gay, which are sport ed, are contradictory. In December he knew the; man, who employed l him-t:o burn the Depot, oaily by sight. In February he still knew the man only by sight. In April, although notoriously he had not seen Fitch, nor any others of the defendants, yet he natned snot only Fitch, but also Mount and Williams, with others of his friends at Leoni, who had-hired him to burn the depot in December. Who does not see that George Washington Gay would never have bured a Depot or made an contract, without knowing his employer? Who does not:see that Abel F-Fitch, could no more have remained uniknown in making such a contract, than you and I Again, Gay when appealed to by Phelps in April, to tell Van Arman wvho it was that had in fact burned the depot, replied “Do you think I am such a di-, fool as to put myself in the power of any man?” Nevertheless, Mr. Van Armarr, who testified to thrs in May, reappears in Court in June, and remembers the fact that Gay not only mentioned in April, that he burned the Depot, but refered to Mount and Fitch as his employers. Again, Gentlemen, if Gay was employed by Fitch to burn the Depot in November, and received the match from him before the fire, and the money, one hundred and fifty dollars, immediately afterwards, these transactions must have occurred somewhere.

There must have been a meeting between him and Fitch at some time, and in some place, either in Detroit, in Jackson County, or somewhere else. Such a meeting could have been proved, if it had ever taken place. When Gay and Fitch gave Phelps their unreserved confidence and stated these transactions freely, why did not one or both of them state where and when that meeting occurred?Fitch was widely known, and if we are to believe the evidence, was vehemently suspected. - Gay was equally notorious and infamous. The absence of Fitch from home, to attend such a meeting, if not his presence in Detroit, could have been proved. There must have been travel by either Fitch and Gay, or by one of them on the Rail Road. Spies were all summer long waylaying every step of: Fitch.The police were always on the heels of Gay. Or there must have been travel by one or both of them on foot, or in some carriage, upon a common road. Such a m-ode of travel would have increased the time spent, and would have in itself been suspicious, and, of course, would thus have directly increased the chances of exposure. -So it appears, that Fitch never came to Detroit; nor was Gay at:Michigan Centre; nor did one ever leave his home, to meet the other elsewhere. Was the negotiation conducted by correspondence? - Then it must have beenn by Post, or by Private messengers. The Post” keeps records of letters, althongh not of teir con tona…Messengers could not paos unobserved. J The homes of Fitch and:aay have .-endered-up all their se,cre. t the police, three times over.,No’suhc/k6respond.ce:h foun -
artoviwaed gaist c4editl=n.the ni/rative, in *-ue,:eryhbt, of.thecW-,Whe lgs > autiatr’ in f io wre tervlei’” ith: Gay, he applied to him to-know or he could clear Van Sickle, ahd.Gay replied; w’e can do 51

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52] it by a plot, and predicate it on the burning of a depot. Phelps himself suggested that, instead of burning a depot in fact, the plot shl4’d be predicated upon the con flagration which had already happened.

That suggestion proceeded on the ground, that, although the conflagration had happened by casualty, yet it could be proved by subornation, and that ithad been done by an incendiary, and the suborned witnesses were to prove that fact by fabricated admissions. What are all the pretended admissions of Gay and Fitch now produced here, but the fabrications, thus early foreshadowed? - Nevertheless, Gentlemen, Gay’s declarations are not evidence. He is not a defendant. He is not on trial. - If living, he would be a competent witness to prove the facts if he could be a witness at all.

But he could not be a witness/if living, because, being the principal, he would not be competent before conviction to charge the crime against accessories. Since he is dead his declarations while living can no more be received than could his oath if living. If you proceed upon the ground of a conspiracy, his recitals of what was past and ended are not competent testimony; “It is only declarations, promises and threats, constituting a part of the felonious transactions themselves and uttered in furtherance of them, that can be received as evidence. [Roscoe, 323.] I challenge the Counsel for the prosecution to show now where in all this voluminous mass of testimony is found one word of proof that any one of the allegations of Gay was ever bronght to the knowledge of any one of the defend ants and confirmed by him, or was ever brought to his knowledge at all. Take the names of the defendants. Have those allegations been brought home to Benjamin F. F. Gleason? No! To Daniel Myers? No! To John Palmer? No! To Lester Penfield? No! To Farnham or to Barrett? No! To Grant or to Lacock?

No! To Willard Champlin? No! To Erastus Champlin? No! To E. Price? No! To Abel F. Fitch? No! To Aaron Mount? No! To William Champlin? No! to Richard Price? No! To Ami Filley? No! To Andrew J. Freeland? No! To William Gunn, or any other defendant? No! The testimony of Gay’s allega tions came in then unadvisedly. It has done its work. It has,poisoned the public mind against the defendants. You are more than human if you have not been af fected by it. But it is time to discharge this testimony from the case. I suppose the promise on which it was admitted was made in good faith. To retain the evidence since that promise has been broken, would be a fraud.

I demand of the Court that the testimony be struck out from the record, and conjure you that it be disregarded altogether. I pass to the supposed admissions of the defendant Smith as reported by Phelps; and Lake. These, like those imputed to Gay, are discredited by internal evidence of falsehood. Phelps says, “Erastus Smith was present when Gay said he receiv ed $150 for burning the depot, and that he knew the man by sight who paid it; that it was raised by a company of men; and Smith afterwards intimated that he re ceived a part of the money.” Again, Smith said ” that the depot was burned under an arrangement with Gay,” of which he was cognisant, and also that Gay told him who paid him the $150.” Not only is there no evidence that Fitch ever saw or heard of such a person as Smith, but the admissions themselves shows that he who procured them knew that there was no acquaintance between them. These ad missions, moreover, have all the vagueness and generality of a technical pleading. An “4 arrangement,”

“cognisance”-such are the words, not of a man giving an ac count of a past transaction from actual knowledge, but of a lawyer framing general interrogatories, or preparing evasive and deceptive answers. Again, Phe’ps reports Smith as saying in iebruary at the Pantheon, that Fitch had left matters for dispos ing of certain witnesses (Lacock and Wells,) with him, and had agreed with Gay to burn the new depot. That he, Smith, had agreed to assist Gay that Gay had given him part of the money,” that Smith had told him that “Fitch had applied to him to burm the nBw; depot;” Phelps and Lake both testify that “Smithwas at the Pantheon -in Februay.; talked withPhlelps about bu aing’ the -, depot;at Nile,-:anid wanted to know if th’r_d of C,orin and Price for buring thewood: wasto be put over beyond theeMarch term becakuse that would’givethem more time.:

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53 I separate these alleged confessions of Smith from other evidence of the same class, and leaving Smith’s Counsel to answer for him so far as they relate to himself; I remark upon them only in relation to the defendants. If Phelps enjoyed the unlimversal confidence of Fitch during his visit here in February, and if Fitch had one or more interviews wiih Smith, then why could not those interviews be proved. Fitch was at Johnson’s hotel, and Smith at the Pantheon near by. No private interviews could be held in places so public. Phelps having the confidence of both, and desiring to circumvent both, could have brought them together without being suspected by either. Again, Gentlemen, the allegations of Smith, like those of Gay, are to be rejected boause they are of the past, and not a part of the transactions which they descrenbed. The learned District Attorney, however, has relieved me from the necessity of discussing further the alleged confessions of Smith. That gentleman advises and solicits you to acquit Smith. The evidence against Smith consists of the admissions which I have cited, and those admissions are proved by the same Phelps and Lake who prove admissions against the other defendants; nay, Smith’s admissions are a part of the evidence against the other defendants. On what ground, then, does the District Attorney advise the acquital of Smith? Certainly, not on the ground that Smith’s admitted agency in the crime of burning the depot was trivial or harmless. On the contrary, he was in the city and admits that he aided and abetted Gay in the very act. He alone, then, of all the defendants, ought to be convicted under the first count in the indictment as a principal in the crime; nor does the District Attor ney ask the acquittal of Mr. Smith on the ground that the evidence given against him by Phelps and Lake is false. On the contrary, if the evidence ofthose witnesses against Smibh is false, then their evidence against the other defendants is false. But the District Attorney declares that he advises the acquittal of Smith on the ground that Smith’s admissions as proved by Phelps and Lake are false. The District Attorney pleads for him, that under the seduction of Phelps he confessed participation in a crime of which he had no knowledge. Were then his allegations against Fitch true, whilst his admissions against himself were false? No; the whole, of course, were false. When I heard the District Attorney submit this extraordinary proposition, I thanked God and took courage. It revealed the secret ofthis entire prosecution. It showed that Smith had been fraudulently made a defendant that he might utter, without oath,false -allegations to convict the defendants at Michigan Centre, under an assurance that he should be acquitted himseif. And now, Gentlemen, since Smith’s allegations are admitted to be false, are Gay’s averments made under the same circumstances true? Smith was, indeed, degraded and debased. If Smith was seduced so easily by Phelps, Gay had even less virtue to resist his seduction. I declare, Gentlemen, my profound convic - tion that the whole prosecution was conceived in fraud; that George W. Gay never burned the depot; that he and Smith falsely accused themselves of that crime un der a promise of Phelps to share in the reward of a conviction of the defendants in Leoni; and that Gay, if he had lived to go through a trial’ and conviction, would have been recommended for a pardon, and would have shared that reward. No, no, Mr.

District Attorney! No, no, most learned Counsel of Ten, that game cannot be played out. I do not say, nor believe, that the defendant Smith is guilty under this in dictment, but I do say thai if any are guilty he is the guiltiest of all. If any one here shall be convicted, he must be convicted first and surest of all. More than this I say that-if there is honesty in Michigan, he will be the last of all the offenders to. be pardoned. Phelps and Lake, either jointly or severally, charge the following defendants with admiss’ions of some agency in procuring Gay to burn the depot, viz., Abel F. Fitch, Ammi Filly, Wm. Corwin, Daniel Myers, Ebenezer Farnbham, Minor T. Lacock, Wm. Champlin, Eben J. Price, Aaron Mount, Andrew J. Freeland, O. D. Williams and John Acekerson. Only two are alleged to have admitted any personal acquaint ance with Gay. All were seventy miles firom Detroit when the;depot was burned and could have had no actual knowledge of the manner in which it was burned. 

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54 Even if they had contributed to hire Gay to commit that crime there must have been some doubt in their minds whether the fire was not a casual one, Nevertheless, they are al charged with admissions made with as much certainty and confidence as if’they had been eye-witnesses and had -actually participated in the transaction. Bt, gentlemen, what motive had Abel F. Fitchto engage in such a crime? It istothe credit of his generous nature that. all of these foul and,infamous accusers suggest a mo. tive, not of avarice, nor of revenge, nor even of retaliation, but of sympathy.

Thus Phel’s states that,Fitch said, at his barn, in January last, that I was well aware as hlie that tge Railroad was a curse to the community, that a number had -leagued to right the wrongs of the people and that he wished to carry the plan further, and would continue until they broughtthe company to terms.” Sympathy, then, with neighbors, who had lost a feyr cat tle, was the motive of a man worth ten thousand dollars and more, for a proposition to burn the depots at a cost of one thousand dollars, at the hazard of his own safety and fortune and the safety and fortunes of of the neighbors whose cause hehad espoused. Sympathy with a few obscure men a motive for illumiatin the State with a balefnl conflagration of all the most useful structures upon its greatest highway! . And, what was the inducement of Ami Filley? If all the testimony in the case be not false.he was indeed hostile to the Railroad company, and was a mischievous man. But he was a man of feeble mind and purile conduct, a mere procurer for other mens pleasures. H e kept h is b oat on the Lake, and his netts inthefieldstosupplyyourtables wvith fishes and bir ds, H e kept balls in’his ninepin alleys, and liquors in his bar, for the recreation and re freshment of visitors. He was never in Detroit nor in Niles,so far asweknow & i cnnterpris in mischiefreached no farther nor higher than committing annoyances in his own neighbor hood. When or where did he ever learn that such a wretch as Gay existed in this capital o elsewhere? As soon would you see a constable leading a revolution, as this bird-catcher of Leoni, organizing such a conspiracy as this. Corwin’s migrations were from Cuyken dall’s tavern, in ILeoni, to Morrison’s grocery, in Jackson, a distance of about eight miles Whenl, where. or how came he to a knowledge of the haunts of crime in this metropolis 7 Daniel Myers. Stand up. There, gentlemen, you see a humble tailor, who follows his shears in an annual orbit of two miles in diameter, encircling the village of Leoni-as ignorant of Detroit, its corruptions, and its crimes as you are of the painful frugality by which he lives Beyond him you see Ebenezer Farnham, a conntry dentist, an early settler in the Genesee county, who has brought the early settler’s habits of occasional intemperance into Michi gan.‘He iscrazed when in his cups, and his drunken vagaries are brought here by inform erg, who seduced him into intoxication. Harmless when in that condition he is gentle and benevolent when in the possession of his senses. There, gentlemen. is Minor T. Laycock, a country lad of scarce 21, whose simple, good nature leads him into the sympaties and and griefs of his neighbors, and whose principles of fidelity and truthfulness, quite too rare even among us, restrain him from saving himself by becoming a mercenary accuser. Eben J. Price and, if you will, Richard, his brother, are two boys led by oceasional intemperance to join in the disorders of a conitry barroom, Andrew J. Freeland is an industrious, hard working farmer, loquacious and perhaps zealous, in the controversies around him, but harmless in action as he is free in speech. Orlando D. Williams is a stone mason, civil and quiet, of good behavior when sober, but, like Farnham”falls ometimes into intoxication, and then a braggart and a fool, whos e very extra. ragance assures that he is harmless. John Ackerson and Aaron Mount are two very poor farmers, neither of whom has committed an act or spoken a word in the midst of all the excitement by which they have been surrounded. But they were witnesses aganst Phelps, on his trial for horse stealing, and so they must be made to ” feed on the fare” which they premented to him. Behold here then the conspirators, who it is alleged “made up a purse aud furnished a machine to the keeper of a city brothel, to burn a depot in the Commercial Capitol, at the hazzard of the conflagration ef the whole city.” Among them all, are only two of whom it is pretended that they had ever suffered an injury from the Railroad company. Accept the testimony of Phelps aud Lake and you have evidence, not that both of them said that they hud seen George W. Gay, but that they confessed they had (!) Reject their testimony and no one o’fthese defendants is proved to have ever heard of Gay, nor even to have seen the city in which he is supposed to have kindled that baleful conflagration.

Only one of them was ever convicted of a crime. Gentlemen, if you would secure your dwellings, your store. houses and your public edifices, if you would live in safety and inpeace.extirpate the crime that arises within your own walls. Rase to the ground the haunts in which it is born, and schooled and trained; at least watch them well and closely My word for it, your town and every dwelling and every edifice in it will stand and endure forever, ifthey wait till the torch i applied to them by the farmers, mechanics or even by the felons of the rural population b whom you are surrounded, supported and maintained, Mark:now, gentlemen, the candor of the accusers and the simplicity of these alleged con t.ors. Phelp, speaking of his pretended interview with Fitch at his barn says - Pra-ink’

(yes I think are the words) there was allusion made to the burningof the dlepI at Detroit He said it had been burnt and could be again.” How frank and generous pot at’

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55 was it in Fitch to repose such confidence in a man whom he had caused, five years before, to, be consigned to the State Prison! How probable it is, too. that a country gentlenman, having five Railroad depots to burn, would organize a joint stock company of forty share-holders with a capitol of $950, to execute the enterprise! How very probable that such a person, would appoint a meeting of the incendiary with the stockholders, on the occasion of apublic shooting, match at a ball alley on Christmas! How natural it was in that samne country gen tleman to show his machine tor burning the depots to the incendiary, who had not yet accepted his proposition, and was cheapening the twin oxen which were to be received by him in payment. When that same country gentleman met the incendiary, by appointnt,me in De~troit, to consult upon the enterprse of burning the new depot in that city, howadmirably fie’selected the place for consultation-the trunk table in the car-house, among  the newly arrived passengers, the conductors and baggage men, laborers and spies of the corporation whose depot was to be destroyed. How kind it was on the part of Fitch instead 6fsending Phelps to Gay’s house, on a rainy day in February, to cousult about the crime, to appoint the interview between them, just around the corner at Savinac’s saloon’ on. the most public wharf in the city. It nes-ei occurred to Fitch that although he might hire, five depots to be burned for a thousand dollars, that he would thereby pledge his whole es-. tate and all future aquisitions in security against betrayal by his accomplices. But it is re-. plied that Fitch supposed he had control of the police authorities of Jackson county, and a sure reliance on the affections of its whole people. What security could all these afford, against-indictments which must be presented, not in Jackson county alone, but iu Wayne. Calhoun and Berrien -counties. The learned counsel reply that Fitch was prepared to. make away with the witnesses against him. Is there any man so simple as not to know that assassination of many witnesses is not the surest way of securing the verdict of a jury?-, But PheIps replies that Fitch promised him to procure a change of venue. Ah! there IF detect tile lawyer in his fraud. Pheips was familiar with those terms; F itch, ignorant of courts, probably never heard of a change of venue in all his life. Again, how nicely the tone and spirit of’ Fitch’s reported conversations are in keeping with his known character and disposition. “We are preparing to give Detroit another touch.’ They are buildinganother depot and I design to burn it as soon as it is up; I don’t care a damn who it kills if it be the Governor of the State.’ -It will give the State a luminous appearance to light it, up at both ends ”’- If detected you had better dig your graves before you go.”

Consider now how happily i iteh chose the place for the final departure of the incendiaries to Niles! Not his own barn, not one of the many private chambers in his own houses but the open, public barroom in a tavern!

Consider, too, the occasion and the circumstances;. a drunken revel, in the presence of’wo well known neighbors not accomplices, and a traveler, who, like himself, refrained from the cup and read newspapers. Mark, too, the caution and economy manifested in the direction for the use of the match “You will have to get camnphene out there.”;Yes, to get the camphene to burn the depot at Niles. in the town of Niles! I ask you next, gentlemen, to examine the alleged admissions in detail. They are allI coin of the same die, whether related by Phelps or Lake. Phelps-“Fitch said it cost him a cow and $25 to burn the old depot.” Lake Fitch said he had paid $50 to a man to burn the new depot, and was to pay $ 5(‘ more when it was burned.” Phelps-‘eCorwin told me his contribution towards burning the old depot was $12,” Lake-‘ Filley said he had paid $30 of the $150 for burning the old depot.” Phelps ‘Erastus Champlin said a purse had been raised to pay for the burning of the de pot last fall.” Lake  Fitch said Lacock knew that a purse of $150 had been raised for burning the de  pot last fall, but did not know to whom it was paid.” Phelps-“Fitch said if I succeeded in burning the depot at Niles, I might take the oxen and the balance ofthe money when I came back.” Lake-“O. D. Williams said his share of the fund was $17, and afterwards said it was: $20.’ Phelps “Freeland said he had paid $14 to Fitch, his share for burning the depet lastfall.”.

Lake-“Aaron Mount said he had known Gay from a child; we raised a purse and sent it down to him to burn the depot at Detroit, and he burned it so quick we hardly knew it’” Lake “Freeland said he had paid his share to Fitch towards burning the depot, and Fitch had paid it over to a man in Detroit.” Phelps-“E. Champlin said a purse has been raised to burn the depot at Detroit again.‘i Lake- -Williams said at Leoni that the best thing they did was the burning of the depot at Detroit; but they got no credit for it.”. Phelps-“Myers said on the way to Michigan Centre that the burning of the depot at Detroit was done so nicely.that they did not suspect any thing. and therefore we got no credit.. for it.” Lake-‘Farnham said it was done so slick that they got no credit for it, and were neversuspected.” 0

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56 Phelps-“Fitch said the Railroad Company was not able to discover the cause of the fire; theywe*ie not smart enough 5 and if they would pay enough, he would show them before their -yeu how to do it.”

Phelps-“Willard Champlin said he would like to have been where he could have seen the depot burn, and seen Brooks in it.” Phelps-“Dr Farnham said we got an old fellow to burn the depot at Detroit, last fall, but it did not seem to make much impression.” Lake-Corwin said, “we burned the depot at Detroit very slick, and that was the only one ‘-the, bad paid for burning.”’ Phelps-“Fitch said a witness might go before the Grand Jury, but he would not live to go before the petit Jury.” “Corwin said a witness might go before the Grand Jury, but he would not live to go before a Pepit Jury.” Filley said ditto to Mr. Corwin, Price said ditto to Mr. Filley.

Phelp-“Smith (in speaking of the old depot) said Gay received $150, and intimated that be received a part of the money in advance.” Phelps-“Smith (in speaking of the new depot) said, at the Palo Alto saloon, that $150
had been paid to Gay and that he received part in advance.” “Williams told me if he was detected he would kill the witnesses or swear them to hell.”

I have heard Corwin, Filley, the Prices and Fitch threaten Lake to kill him or swear him to hell.” Phelps says,” I received sixty dollars in advance for burning the depot at INiles, but don’t remember from whom 1
received it.” “O. D. Williams told me that a man at Detroit burned the depot and that he was paid sixty dollars in advance.” “Corwin, at Bascom’s, said if they could burn the depots, both at Detroit and Niles, at the game time, the Railroad Company would pay Up.” ” Wm. Gunn said, at Marshall, that if the Detroit depot should be burned up again, and Phlelps should burn the Niles depot, and he IGunn) should burn the Marshall depot, ho thought the company would begin to pay up.” “Fitch said if we could get a fire into the depots at Niles and Detroit at the same time, they would begin to think Miller’s doctrine true.” “Dr. Farnham said ifwe could blow up the track a few times, the Company would be willing to buy us offand pay any sum asked.” “O. D. Williams said he should write to the Company and tell them if they would give a thousand dollars a yearforfive years they should have no more trouble.” Lake-“(“Corwin said they meant’to propose to the Company to pay one thousand dollars ayear forfive years.”

lhelps 3”Myes said ifl was successful in burning the depot at Niles, we would be able to draw a large sssm of moneyfrom the Comnpany.” Lake-“Dr.

Farnham said if they could make a clean sweep of the depot at Detroit, he guessed they would wake up.” ” Fitch said they would make a clean sweep at Detroit and fles.” “Corwin said they would make a clean sweep at Detroit and Niles.” “Williams said they would make a clean sweep at Detroit and ANiles. Mount said-(the same). Filley said-(the same.) Enough ofthis.

There is an identity in the admissions as harmonious as in the ritual of a -Free Mason’s Lodge. or in the Liturgy of the Episcopal Church, Gentlemen, Dramatists, and Novelists, in the early period of our modern literature, relieved the wearisomeness of their pictures by interludes and subordinate tales, which had a pleasing similarity, in spirit at least, to the principal plot of the work.’ The narrative here is relieved in the same way, with humbler plots and conspiracies, as follows: (1.) Phelps says “he proposed a conspiracy with Gay, which was to burn the depot at Detroit, Lnd lay;t to Boyce, because he stole from thieves.” (2.) Phelps sans “he suggested two plans to get rid of Sherman, Laycock and Wells: one Was o burn the depot at Detroit, and lay it to them.” (3.) Phelps says “Wm. Gunn told him he should get Shermant into the black hole; and if -he could not get Sherman laid out, he should burn one of the depots.” (4.) Gay told Phelps “he knew a first rate man and his wife whom he could get to swear that Boyce said before the depot was burned, “he was going to burn it;”

and to swear that after it was burned Boyce said he had burned it.” (5.) Williams said “you know I was the cause of having the cars thrown off at Leoni, althongh I was in bed. We can swear Laycock did it.”’ Corwin said “he would testify that Laycoc k came to him and wanted him to help do it.”

Williams said “he would swear that Corwin afterwards confessed that he did it.” Anid Freeland said “he would swear both that C’orwin said before the offense that he was going to do it, and that he confessed it afterwards.”

Phelps says that “Fitch, at Detroit, suggested” a second plan to get rid of”the boys,” which was by placing countesfeit money upon their persons.”

Phelps says that “Corwin, a bout the same time, at Michigan Centre, suggested” the same ingenious device. Ho w delicately these pictures are worked in upon the tapestry; and how delightfully they harm onize with the grand design, of fabricating matches in the log cabin at Sylvan. and carrying one in a red handkerchief and depositing it in Filley’s tavern, and carrying the other in so me other way and depositing it under the sidewalk in front of Gay’s house, in Detroit Ed then swearing that the defendants delivered to them the one left at Filley’s, and that

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57 Fitch and Gay admitted that the other was manufactured and delivered for a similar purpose. But I weary you. There are many more such admissions. ” The-trail of the serpent is over them all.” Letus now see whether the narrative of the witnesses harmonizes in all its parts. Phelps says “tfiat Fitch’s object in visiting Detroit,on the 11th of February last, was to get Wells, Laycock and Caswell out of the way; that Fitch proposed two alternatives for that purpose, and Phelps offered to execute either. One was to burn the new depot and lay it to “the boys,” and the other was to put counterfeit money on their persons and thus cause them to be sent to prison.” Phelps, when asked why he left Detroit without having executed either alternative, answered that Fitch told him that Gay had agreed with him to burn the new depot. Thus, then, Gay was to burn the new depot, and lay the crime to “the boys.” But Phelps *had before told us that Fitch remained in Detroit to get rid of “the boys,” by enticing them away, or getting them secure in some way; from which it must be inferred that the burning of the new depot was not to be laid to “the boys.”

Indeed, Phelps says that Fitch told him he had a woman staying at Gay’s to put money in “the boys” pockets; and that Joe Dows was to place pencil cases filled with counterfeit money upon their persons and decoy them to Canada. Thus, the crimes contemplated in bbth alternatives, were to be executed to get rid of{‘the boys;” who, after all, were not to be got rid of by means of these crimes, but were to be enticed away and persuaded to silence. Again, Gentlemen, Phelps says that ” when a match was shown to him at Michigan Cen tre, in January, he told Fitch and Filley he had seen such a one at Gay’s; “Nevertheless Gay never showed Phelps a match until after the 24th of February. Again, if Fiteh deiv ered to Gay two matches, while in Detroit in February, why did Rot Fitch show them to Phelps before delivery, and why did not Gay show them to Phelps after receiving them I Phelps claims that he then enjoyed the unreserved confidence of both, and he says that Fitch had arranged an interview between himself and Gay.

Again, Phelps says, that “not until February 13th, did he ever hear Fitch mention the name of Gay. How did it happen then that Fitch expressed no surprise in January, when Phelps told him he had seen such a match at G.ay’s house. Again, Phelps says that Fitch, at Detroit, said he wanted Phelps to go to Niles, and light up there at the same time Gay should light up here, and the time appointed was March 4th when Corwin and Pice were to be tried at Jackson for burning the railroad wood pile. Phelps says that it was after wards arranged that the trial of Corwin and Pice was to be put over to a future term of the court, and that the burning of the depot was to be postponed accordingly. Nevertheless, Phelps says, that on the 4th of March, Corwin, complained of Phelps’ delay in burning the depot at Niles, and Phelps innocently explain to us that he had been delaying it for Clark the Railroad Agent to come home from Lansing. In the sequel the “boys, Laycock, Wells, and Caswell, are quite forgotten; Corwin and Rice, altogether forgot ten; Gay altogether forgotten; the new depot at Detroit is altogether forgotten, and on the 13th of April the depot at Niles is fired without an object or purpose. Look now,. gentlemen, at the boldness with which disingenousness and falsehood are confessed, avowed, and justified by Phelps. He says I don’t know what I told Filley at the ball alley I would do with the oxen, probably I invented something for the occasion.” ” What I told Corwin about passing counterfeit money was false, Lake and I concerted it together.” “At Detroit I offered to take the proposition, either to burn the depot, or to put money in the pockets of the boys, and betray them in Canada. This was to make Fitch believe I was helping him.” ” I told Price at the ball alley, I could get witnesses from the neighborhood to impeach Sherman,” I told him this on purpose to receive him,” “I may have told defendants Lemn was a d-d mean man,” I pretended to Fitch that went to Lansing to get relief from unjust imprisonment.”’ The first time I was in Lansing I got a northern member to introduce a bill, my real object there was to see Darius Clark. I got several copies of the report containing the application, and sent them to Michigan Centre; On my return from Lansing I saw Corwin, and Farnham and told them I was go. ing to collect money in Detroit for a man in Massachusetts.” In the interview with m. B. Laycock, in January, I told him I wanted to buy Fitch’s oxen, and that 1 could sell them for $140. I said this to deceive Lucock.” “Fitch asked me on the night of April 11th, abeut my claim on the State, I told him I could get about $3,200.” Hudson says Phelps said on the 11th of April that he had a friend in Minnesota, who had graduated with him and he was going there next week. Phelps says, ” I remember telling Fitch that the Gov of Minesota had written to me about coming out there. My object was to get my money when I got back from Niles. Gentlemen, I will present no more of these shameless and boastful confessions of false hood. Permit me, however, to ask, 1. Do you doubt now the correctness of the one hundred and twenty-one witnesses who impeach Phelps’ reputation for truth and veracity. 2. Can you fell me by what rule you can distinguish what part of Phelps’ statements you are to receive as true, and what part to reject as false? 3. We can well enough dispense with Wm. Dyer’s testimony, that Phelps told him “it would be right to put down the Company in Jackson and Washtenaw counties, by false swearing, if it could not be done without.” Phelps virtually admitted that he had said so

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58 ftor he stated that under some circumstances he might have made that remark, althongh he denied any recollection of the person to whom the remark was made, It is my duty in the next place to show you that the narrative of Phelps is in many es sential’poinis, absolutely contradicted.

1. Phelps says he saw Fitch iv Jackson the day before Christmas, and’he thinks thatit was monday; that he then ag to gonext day, and did. o next day, toMichigan Cen tre, to see the boys, and it way Christmas. It is shown by A:!.Delamater, Jobn Delamater Amanlda Fitch,and Harry Holcomb,,thatFichwas,notat Jackson’ on’.the day thfusdesignated. 2. Phelps says that Fitch’s.visit at Detroit, on.February 1‘3th:, was cIoncerted by appoint-‘ ment between him and Phelps. He requires us also to believe.,that he was expected by Fitch at Detroit. The facts are that Fitch went to Detroit under an engagement with Vic tory Collier. and was waiting’there for Israel R. Brown. Phelps’ statement’that Fitch conversed with him half an hour on the trunk table in the depot, is contradicted by Delos J. Holden, who having arrived on ihat occasion with Phelps went’to Johnsoi’s hotel iMre7,, diately, and found Fitch, and staid with him at that place.. SIr. Shealy, who was called to suppbrt Phelps’ account of his interview with Fitch in the street, on the occasion when Fitch directed him where to find Gay, deprives that circumstance of all sinister elffecta,i. You remember that Phelps says that Fitch asked him if he had got his fish, anrd hie an swered “no;”’ that Fitch replied he would find some round the cornerspointing towards Sav anack’s grocery; and Phelps says that on going there he found Gay. But.‘aceording to Shpay,. the dialogue was thus: (Fitch) “Have you not gone home yet?” (Phelps) ” No, I have not got my fish yet.” (Fitch) “You will find some round the corner.”

G.sW. Brown tes tifies tat he put the same question to Fitch, received the same answer, and obtained fish at-the place designated. Phelps admits that he did inform Fitch, in Detroit, that he wanted to procure fish and other provisions for supplies on a job of grading the Railroad. The remnant of a barrel of fish was found on Phelps’ premises, on his departure from Syl van.‘1’hus much for a trivial circumstance, light as air, which suspicion and fraud have. magnified into’- confirmation strong as proof from holy writ.” You have already the fact. - that Willard Champlin was absent from Grandison Filley’s whea Phelps charges him with an admission implying guilty knowledge of the burning the depot. 1 have have recited Phelp’s narrative of a plot contrived by Williams, E. J. Prifr’,e, Freeland and Corwin. Phelps fixes the scene and the time at Cuykendall’s, on the day when Freesland and Corwin changed horses-and says that the wicked consultation was broken up by. Nathan High, who came up and asked what the privacy was. Nathan High says that he broke up such a conversation neither then nor at any other time. Benjamin Stid proves that Phelps was not at Coyklendall’s on that occasion. Phelps relates a conversation on the first Tuesday in March. between himself, Fitch and Lake, concerning a proposed branch load from Jackson to Adrian; and alleges that Fitch said that “the Michigan Central RailRoad would be worth nothing;” that they “wo.eld keep tearing up the track, and so keep the travel off from it.” Lake recites the conversation, omitting altogether the essential part about the Michigan Centralt Railroad. Phelps’ numerous statements of admirsions, by Fitch, of having or making counterfeitmoney, are manifestly false. It may wall be doubtted whether any man in easy circumstances ever engaged in that despicable manuifacture or traffic. The police have searched every part of Fitch’s house and priemises in vain although his arrest was sudden and unforeseen. Phelps says that, in January last on the occasion when he went to Michigan Centre with William B. Lacock, he found Fitch with Filley and Ackerson in the ball alley, and that there Fitch discussed with him the plan to prosecute Lacock and said it was a good plan if stuck to and said the rule among them was, if a man turn-_ ed traitor, to shoot him on the stand, but that Miner was a weak kind of a boy and. the state prison would do for him; that they then spoke of burning the depot at Niles.

Fitch said he “should charge $160 for the twin oxen and would pay the balances $40, in money; tha. it cost him a cow and $25 for burning the old depot; that the match to be furnished had never failed and it never would; there was no danger of failure. It was in that conversation also that Phelps represents Fitch as saying that they had prepared the match there and sent it to a man in the city and paid him $150 for burning the depot; that it was constructed so as to burn a given time and he gave instructions about it; that it had been used at Detroit as directed, and that, when it burst out, it spread so rapidly that all the water of the river could nver extinguish it. He represents Fitch as saying on that occasion, still further that they had injured the Company half a million of dollars during the first year and would double that sum in the ensuing year; that they were going to burn the new depot as soon as it was finished; that they had warned the people not to ride over the road,and,as they knew better,he didn’t care a damn who was killed if it was the Governor of the State; that in case he should get into difficulty in burning the Niles

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59 depot he would bail Phelps out, and change the venue to Jackson where he could get witnesses to swear him out; that he could get a host of witnesses to put down a traitor pr to screen a friend and named them: that he could impeach the best man in Jackson County and get the best man in Jackson County to assist him in guilt. Now nark,that the says he first saw Fitch in the ballalley and that all this conversation was held there. Wm.

B. Lacock who according to Phelps’ own account attended him, says he was never at Michigan Centre but that one time, and that on this occasion he was with Phelps from the time they departed from his house until they returned to Lacocks house; that he was ail the time within sight ot Phelps and by his side or at least within hearing, that he went into the ball alley, with Phelps after Fitch went into the barroom,4hat instead of Ackerson and Filley rolling balls, he Lacock rolled two balls with Phelps: that Fitch then came into the ballalley and that Phelps and Lallcock rolled only four more and then they returned to the barroom; that in the ba -alley Phelps offered Fitch $150 for his twin cattle and Fitch said he wouldn’t let them go for that sum, that it was not as much as he paid for them, that this is all that passed between Phelps and Fitch in the ballalley; that Phelps and Lacock returned to the barroom, and Fitch followed them there and sat down by the fire; that Phelps standing near the barroom window offered $120 for the catlle and Fitch replied he should not let them go for that, nor let them go st all. Lacock says he is sure he heard every word spoken in the ballalley, and every word spoken in the barroom and that he has repeated every word said; in either place or any place on that occasion, that nothing was said about Miner T.

Lacock, nothing about burning the new depot at Detroit, nothing about burning the old one, nothing about a match, nothing about killing passengers, nothing about killing even the Governor of the State, nothing about influence nor about hosts of witnesses, nor about putting down traitors, no.about screening friends; in short that not even one word related was said there, Mile it appears that Phelps repeats not one word of what actually was spoken. The witness Lacock shuts out all possibility of mistake by showing that the parties did not enter the ballalley a second time, but that after remaining fifteen minutes in the bar-roomn he and Phelps left the Centre and returned to the place from whence they had departed in the morn ing. Phelps states that on December 19th, he went to Fitch’s and rode with the young Messrs. Lacock; that he called at Fitch’s house at noon, was invited to dinner, declined, didn’t see the cattle in the forenoon but did in the afternoon; in a long conversation of two hours with Fitch, he proposed to Phelps to take an interest in some counterfeit money speculatio.ns; that he there made his proposition to Phelps to burn one of the depots-at Ann Arbor, AIarshall, Kalamazoo or Niles, and offered him $200 for that service. Be pleased now to remember that Fitch’s barn was nearly half a mile distant from his house, and that, Phelps says, the scene at the barn took place, not in the forenoon onl the occasion when he called at Fitch’s house, but on the atternoon of the same day, and that it occupied two hours. Then collate the testimony of Martin S. Lacock, HeVry T. Lacock, Christy Blackmar and Elizabeth Palmer, and you will find that Phelps went to Filley’s that morning, attended by three of those persons; that while at M,ichigan Centre, he called at Fitch’s house at 11 o’clock in the morning; that the whole duration of his stay at the Centre that morning was half an hour; that he returned with the same party and spent the entire afternoon, evening and night in the families of those witnesses, without having returned at all to Michigan Centre that day.

Bear in mind also, that, while Mrs. Phelps, could have contradicted those witnesses, if their testimony had been false, yet she has since been upon the stand and has failed to do so. Mrs. Fitch has appeared here offering to prove the interview between her husband and Phelps in the morning and the falsehood of the alleged interview at the barn in the afternoon. I have already shown you that the account given by Phelps of a conversation at the house of John Palmer in January, concerning Minor T. Lacock and implicating Palmer, Penfield and Lacock, although corroborated by Mrs.

Phelps, is disproved by Christy Blackmar.

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60 Following now Phelps’ narrative until the date of April 11th, I ask you to take notice that he alleges that, on his return from Grass Lake to Leoni, on the afternoon of that day Corwin and Myers went with him to Michigan Centre uninvited, Corwin having paid for the spirits with which the vessel taken from Coykendall’s was filled, and that Williams excused himself from going, on the ground that he would have no conveyance in which to return. A.S. Luce, Esq., John Coykendall, John W. Kellogg and B.

F. Smith testify, that Phelps invited Corwin and Myers to go to Michigan Centre to roll ninepins, and paid lavishly for the spirits which were drank as well as well as for those taken away, and that Williams was not present on that occasion. We have already exposed the ralsehoods of Phelps and Lake, in relation to their mysterious journey from Grass Lake to Michigan Centre, on that memorable day. Let us look now into their account of the transactions of the night. Phelps and Lake represent Fitch as having been present at Filley’s house, while two distinct private conversations were held in the barroom, and’ two conversations of considerable length out of doors. All the witnesses agree that the time occupied, during the conversations and transactions of that night, was about two hours Fitch’s presence during a period so long is completely disproved. James O. Cross, a reputable farmer who was staying at Fitch’s house, states that Fitch was absent from home only ten or twelve minutes.

Amanda Fitch limits his absence to five or ten minutes and they agree that he was out of his house only once that evening. Wm. H. Hudson, who was at Filley’s barroom throughout all these transactions, testifies that Fitch came in, held a public conversation of ten or fifteen minutes with Phelps, withdrew and did not return again that ni.ght. The important points in the transactions of that evening as related by Phelps, are that Fitch took Phelps aseid and said, “Filleykad told him that he Phelps was going to Niles that evening, that a lot of fellows had been hanging around them and that he Fitch had sent Filley off with them a fishing: that while Fitch refused to pay any money in advance, he said that Phelps and Lake if successful, might come back and take the oxen n they would pay over the balance of $60; that although this talk was private, Corwith Myers and Faulkner heard a part of it; that Fitch, Corwin and Lake, went out of doors together and Fitch said to Phelps and Lake that rather than make any exposures as they shonld fall they had better dig their graves before they should go; that he would give them a match all ready; that if they should once get inside of the depot there would be no difficulty; that they (Phelps and Lake) would hle to get camphene at Niles, to put into the box, because they conld not conveniently carry it; that Fitch advised them to return to Grass Lake, and separating there, take the cars at different points the next morning and proceed to Niles; and Fitch then told Corwin to fix them out; that Fitch left the house, and that then Corwin opened the door of the store room, took out the box placed it in the wagon of Phelps and Lake, and they departed while Corwin and Myem went away in another wagon. William H. Hudson was at Fillev’s house, before Fitch and staid there until all had de parted, relates that Fitch came in, and was invited to drink, that be declined; that then Phelps came from behind the counter, Fitch said t(t Phelps “you did not remain long at Lansing.”

Phelps replied no he had done his business up quick and had got State bonds for $3200 and he thought that small amount better than nothing.

Phelps said that his horse had run away that day for the first time; before that the horse had been very steady. He said also he had a friend in Minesota who had graduated with him and who thought he could do well up there and he was going to move there the next week. Hudson says that after Fitch went out there was a good deal of moving about and some drinking by the persons there.” Hudson remained there a period of from one to two hours. The statement, by Phelps, that Fitch told him that he had learned from Filley that Phelps was going to Niles that night is manifestly false: first because Phelps did not see Filley vwhen there that day. Filley could have learned that purpose only from Lake in the afternoon and dui ming all that afternoon Fitch was absent from home until Filley had gone down the last time to the Lake. The statement that “Fitch said there had been a lot of fellows hanging around there and he had sent Filley off with them fishing,” is equally false, because no such lot of “fellows” had been hanging around there, and Filley had gone off fishing on his own motion without any communication with Fitch.

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61 The other statements are equally false, because Hudson neither saw any such private consultations, nor any such withdrawing from the room, and because the time Fitch remained there was insufficientfor their occurrence. Phelps admits the statements, as given by Hudson, concerning th e recovery of his claim at Lansing, and his acquaintance with the graduate at Minesota. The statement that Fitch told Phelps that the u atch would not fail, for it had been tried several times, is manifestly false and fabricated, because the match produced and identified,has been tried,first at Niles,and then here,and has failed; and it has been demonstrated,philosophically and conclusively,thtat it must fail to the end ofthe chapter. Again,the statement that’Fitch told Corwin to fire them off,‘must be false, because it has been proved that Lake was in possession of the key of the store room; and, according to his own statement, he must have obtained the key from Filley. And yet Lake does not say that he had either given the key to Corwin, or had told Fitch that it was in Corwin’s possession. These falsehoods being exposed, the principle, ” falsus in unio, talsus in omitibus,” applies again. The coullsel for the people claim,that Plielps’ 5tatct iS coliroborated by Faulkner. That corroboration consists in this, that,in a suppressed conv ersation, will have overheard Corwin saying, ” yes, after we get through,” and, ” I think we can come it;” that, at another time, Phelps said loudly, “Boys, when I get back fiown Niles,we will have a time,” and Corwin said, “Yes we will tear down Cuykenadall’s bar and this too.” Corwin said, “I am willing to pay something in advance,” and handed Phelps something. Phelps said, “This will help pay expenses over the road; all paid in advance, helps like hell.” Fitch came in, afterwards, and three times asked, “Boys, how do you do.” and ” What is the news?” that they all went out doors for five minutes and came in again, and Fitch said to Phelps, “I shall be leady for you, I shall be flush then;” that Corwin said before Fitch came that “all would be right and money would be flush when Phelps should get back from Niles. No reliance can be placed on Falkner’s statement of these details although it may have been conscientiously made. He was a stranger there and all the persons assembled were unknown to him. Desirous as he may have been to understand and report truly he was liable to misapprehend the dialogue and confound the persons engaged in it. It is certain that he mistook some other person for Fitch when they left the room that night. He says he saw Fitch standing beyond the wagon when the box was put in. Fitch is proved to have left the party before that time and to have returned home, and neither Hudson nor even Phelps nor Lake says now pretends that Fitch was at the place assigned himby Falkner on that occasion. We are asked to explain the remarks imputed to Fitch and Corwin in the recital given of the drunken revel, viz: a psomise “to be flush” on Phelps’ return from Niles and “that Corwin said he was willing to make payment in advance. We reply that, as to Fitch, it is manifest no such remarks were made by him, because if heard by Falkner they would equally have been heard by Hudson, and yet Hudson did not hear them. Phelps’part of the dialouge was purposely spoken in a low voice, except a cle or catchword uttered loddly for the ear of Falkner. The meaning of Corwin and ]Myers’

replies depends altogether upon the nature of the remarks which called them forth. I see nothing extraordinary in Corwin’s contribution to Phelps’ expenses, and his expectations of a revel when Phelps should return, enriched by the receipt cf the 8$3200 to be obtained fronm the State of Michigan, or by payment from his pretended debtor in Mas sachusetts, or by a fortune to be secured through the partial favor and assistance of his distinguished friend, the Governor of Minesota.

Gentlemen, it is scarcely necessary to remark that if Phelps’ narrative is false, the rela tion given by Lake cannot be true. His concurrence lends no confirmation. There are, however, cross-readings by these witnesses, which require a moment’s notice. Phelps tes tifies that Williams said he should write to the Railroad Company, through an attorney, and offer to take a thousand dollars a year, for five years, for letting them off.

Lake, on the contrary, attributes this generous proposition to Corwin.

When, however, the counsel for the prosecution indicate the variance, Lake reconciles the conflict by saying he has heard Williams say the same thing. It is extraordinary that Phelps should have forgotten that Corwin made the remark, and equa!ly so that Lake had not, in the first instance, placed the remark to the account of Williams, where it belonged. Lake informs us that Fitch said on the piazza, atBascom’s tavern, in Jackson, that it cost him a cow and twenty-five dollars to burn the old Depot 
that he had paid fifty dollars to the same man for burning the new one, and that he was to pay fifty dollars more after it should be burned; “that if we would burn the Niles Depot, we could have two hundred dollars in money, or the twin oxen at a hundred and forty dollars and the balance in money. Phelps, who was present, gives us no snch details of that conversation; but presents the same nefarious statements as av ing been made by Fitch, at the ball alley, on the occasion of his visit there with Wm. B. Lacock, which occurred before Lake’s engagement began. It is manifest, therefore, that Lake has blunderingly taken from the common diary what was heard Phelps by alone, and duced it as a confession of Fitch, heard by himself. lthough Phelps had stated that he was to be paid his expenses in case of a failure to ‘ the Niles Depot, yet he was leaving the stand without bshowing that he had received oureven demandedhis expenses. A juror pointed out the incongruity. He immediately ored, “&They paid me before and after I went about sixty dollars, on account of expenses.

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62 Of this sum, Fitchl pail me eight half dollars, two gold dollars and one quarter etgle, ma~ng eight dollars andl filty cents, besides seven dollars paid Lake by Williams, on the same account. Lake, on the colltrary, says that neither Williams nor any other person ever paip anything to him on accounlt of expelnses, nor to hisknowledge was anything ever paid to Phelps on that account. lIe says further that he was present,when the cight dollars and a half was delivered anit received as spurious, and that it was infact counterfeit coin. It will not surprise you, Gentlemen, to find that Phelps and Lake harmonize ini their account of Farnham’s infernal machine, which they saw at his gate, wheoe there was no other witness present, in tile night time, when none but they and such as they could see anything. Nevertheless, it is strange that the engineer, who fabricated the matches produced here with such profound philosophical knowledge and exquisite skill, calnnot describe the iiiode of operation of Farnham’s infernal machine for blowing np the railroad, although it colnsisted oftwo common till horns, bound together at the narrowest part of the tulbes withI a clasp. Dr. Farnham was taken firom his house in the night time, without notice, and his dwelling was then exposed to thle most scrutinizing search of the police; but neither tlhe machine, nor any cf its superfiuous materials, nor the instruments employed in the construction of it, have been produced. I pass on to Lake’s aecounit ofthe transactions of April 11th. He sasls that Plhelps and himself arrived at Filly’s together about noon, and inquired ofhimn if”tiie boys”’ were there. You know, Gentlemen, that ” the boys’ lived at Leolli, four miles east of Iicliagn Centre, and, according’ to Lake, le and Plhelps had just past Leoni, where they cotl0 have beeni found’aand hat came down to Michifaii Centre to inquire for them,whoreot1y re se na,)t tobe found.

Lake says they told Filly, ” We have come to go to Niles.’ lilly replild.

“I am gladl; we are ready for you.” Lake says, “I was unwell and laid (-lowll aIfti, lying aln hour, I rose again, came downstairs, and found Filly; we then had ai ttlk abou preparation for Niles. Filly went to the barnl and brought the match. I exalmilnd it. llhey put it into the box, lnailed it up, put into the store room, and saying’ it is ready for Niles,’ putthe key in his pocket.” This ingenious narrative was, unhappily, iin co(14lic0t with the testimony of KCane and Allen, who took Filly to the pond about half past twelve, before Lake arrived at his house, and detained him until between three and four o’clock. Lake removes the difficulty thus raised, while he gives a conclusive answer to Seord, tlle Beemans and Taylor, who have testified to his travels on foot wvith a m1atch, in a box, tied up in a red hiandkerchief. He was sick before. and now, like Doll JuaLn in the Slipwreclk. he ” falls sicker,”’ and enlarges the period of his repose, in the upper chaimber, frili o nle to) three hours. How could a man, who was obliged to sleep thrll ee hours in a day, wall_ four miles oppressed with the weihlt tied up in that red bucndle?

Gentlemen, I have now showIn you that the testimony of Plielps and LiLkc is unwortlhy of credit, by reason of their depravity-of internal evidelnce of folsehood-of conflict lietween tliemselves-of flalornt avowals of deceit-ancld of collision with facts, incoiitcstibly established. I atdvort blieflv to some pretended corroborations. These are flihrnishiedi principally, by Mlessrs. Van Armlan and Clark. Revert, if you please, to their acounit (i? the disclosures made at Ga,y’s house. Van Ari1an sa ys CIlark was standing, too lLi oilf to hear. Phelps was talkini with Gay.

Phelps atvc lus the sic,nal, to alpproach. Tlies weroe talking about burning the Depots at Niles al1d Detroit. Phelps slid hlie vwold(l go oult ti see the friecnds at the Centre, ald let Gay know vwhit ti11e thev would be roaly it Niles. (tLty said they w ould bo el eay to in a0ke a strike here ot the sllai titue. 1Who do)es not secc trl this conovcrsctio a colrivedl between Phelps iand Gav tor tnil plur pose of eorrobhoration?

Again, Ir. Van Ar maIn, describin’ the transactionls at the slle pltc, oil tlhe foll(win’ night, says, (Clark beiiin present thlouth not within hearin2 ) ” Giy talked wvith Phelps about burnin the new Depot, and with equal care, ivoide(l confessinc anytl-iing about buinina the old one.” At the sime time, Phl1ps, having l111 a plivate conversationl witl Gay, told Van Armran that Gay had given leave,, and ther eupon Phelps went lup stairs, and exhibited the mnatch to Clarl and ll Van Aritnan. What wats there in all tlis, but b jlutle between Phelps and Gay to ihnpose upon Clark and Va,ri Arluau. You have a tliirl corrob oration ill the filet thatPhelp, lent’G(ay two dollars in Febrtary, to otlichase clulplene; but it is deprived ofall its value by the fact that Clarl had been apprised that tlhe umoney was lent, and was sent into Parker’s to request him to make a memorandum of t-he sl10 Fourth corrobation: After setting firc to the Depot at Niles, with thle ftisc enCd of tihe match, Phelps, Lake, Clark and Van Arman returned together in the cats towards Detroit When they arrived at Jackson, Filly was seen there, and he looked as if lie ivas aCiousy Cei/ng 0somebody. Phelps concerted with Clark and VaIn Arman, that hlie should draw Filly into conversation, while they should listen.

When a person is in a Depot, on the ar rjval of a train of cars, he is very apt to look as if he was expecting somebody. A conlver iation, of oeurse, occurred, of which three versions are given., -./t,PIhelpa’

version: Fllly-How did von get along Phelps-I set the Depot on :!_~ mtad a failure. aThey put it, out.‘have not mnade more than nine times. I’have : tmnsehe r e and back. Filly Go up to’the Centre, and see the boys; they will make it all right. Van Arman’sversion:Phelpsad-Idd not make more than nine tines. Filley -You bd 0go immediately t) theCentre; the boys are waitmg for you.

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itiiU, LuauL r ILCte, iteu-r nuxing sils alteition uponi tie warrant, said,’ I believe that ola Gay lhas turnecd State’s evidence. Thle warrant suggested thaLt o)iniioii. Tle conne;,l for the proseclution criticise the use of the word” old,” which, tlhev say, is inoii,istenlt lviti. Fitch’s denlial; but it is manifest that Fitch spoke of his knowledge of aftirs before tle arrest. After the arrest, “old Gay’s” name must -soon becomne “
ftntiliiar as hlouselolds words.” Gentlemen, I trust that I have proved that the conspiracy alleged in this case, presents an immaterial issue, and is false in fact;’ that the case rests on evidence of adlnissionils only, proved by three witnesses-Gay, Phelps and Lake; that the evidences of tliose al-i,siois were false, because the facts supposed to beconfessed atre impossible, whllile tle adinissions are unworthy of credit, because they are unsulpported by circumstantiil evidleec, iiid tlhe witnesses who presents them are unworthy of belief, and their testiiiioily is Qoitiilistory and is in conflict with facts incontestibly establislied. If thlese positions ale truc, it follows that this prosecution is the result of a conspiracy against tue defendttts. Yon llLve cvidence of that colnspiracy in the malicious threats of Wescott and Phelps iin al tlllsion by Phelps, showing an understanding withl WVescott; in a necgociation betweeri Phelps ani Gay to predicate a plot on the casual burninii of the Depot in Detroit, onl the l9tli of No. last, a plot for thle ruin ofiniocent meii; in the fraudulent mantfacttuie of thlose ]alr,nle, but fearful toklens, contrived to obtain credit for the narrative of help,; in thc frtuidulent traisferofthosectokens, by thlose wiho fibric,tted tihem, to the possessioi of’ tt of Filly; and in thle cunningly devised narrative ot Plielps and Lake. But I will not fliloiN
that subject fliurtl-her. It belongs to another prosecutioii-a different tribunal-perI1-)s,i to a distant jurisdiction. It is ceoughli for our present purpose that the defendants ale liot guilty. Gentlemen, in thn’

middle of the fourth ino:itli, we draw near toc tle end of wliat s seed to be an euidless labor. Wl-iile we have been hliere events have transpired, - lIich ha e roused national amnbition kindled national resentmtent drawn fortlh niutioInal symptlies -and threatened to dlisttii b the tranquility of ieipires. He who, althougll lie wol-eltli liiiseen, yet worketh irresistablv and unceasingly, liath susiended necither Itis giar,ia,n cire nor His paternal discipline over ourselves. Some of you have sickened aln coti veIsced. Others have parted with cherished ones who, remnoved before they had tiiiie to contreaet the stain of earth, were already preparecd for the Kingdom of Ilea ven. Ther-e lihve beenr changes, too, amnong the unfortunate men wlhom I hltve defended. The soun(l of tlle hammer as died away in the workshops of some; the harvests have ripened and wasted in the fields of others. Want, and fear, and sorrow, have entered into all their dwellings. Their own rugged forns have drooped; their sunburnt brows have blanched; and their hands have become as soft to the pressure of friendship as yours or mine. One of them a vagrant boy-whom I found imprisoned here for a few extravagant words that, perhaps, he never uttered, has pined away and died. Another, he who was feared, hated and loved most of all, has fallen in the vigor of life, ‘~~~~~~~~~~~1 - hacked down, Histhick summer leaves all laded.” When sua an one falls, %mid the din and smoke of the battle-field our emotions are overpowered-uppressed-lost in the excitement of public passion. But when he perishesa

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64 victim of domestic or social strife-when we see the iron enter his soul, and see it, day by day, sinking deeper and deeper, until nature gives way and he lies lifeless at our feetthen there is nothing to check the flow of forgiveness, compassion and sympathy. If, in the moment he is when closing is eyes on earth, he declares: “I have committed no crime against my country; I die a martyr for the liberty of speech, and perish of a broken heart” -then, indeed, do we feel that the tongues of dying men enforce attention, like deep harmony. Who would willingly consent to decide on the guilt or innocence of one who has thus been withdrawn from our erring judgment, to the tribunal of eternal justice? Yet it cannot be avoided. If Abel F. Fitch was guilty of the crime charged in this indictment, every man here may nevertheless be innocent; but if he wasinnocent, then there is not one of these his associates inlife, who can be guilty. Try him, then, since you must-condemn him, if you must and with him condemn them. But remember that you are mortal and he is now immortal; and that before that tribunal where he stands, you mnst stand ant confront him, and vindicate your judgment. Remember, too, that he is now free. He has not only left behind him the dungeon, the cell and the chain; but he exults in a freedom, compared with which, the liberty we enjoy is slavery and bondage. You stand, then, between the dead and the living. There is no need to bespeak the exercise of your cautionof your candor-and of your impartiality. You will, I am sure,be just to the living, and true to your country; because, under circumstances so solemn-so full of awe-you cannot be unjust to the dead, nor lalse to your country, nor to your God. r. -. :. 1, “, _. 11 1,,7 - t

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