The American. [volume] (Washington [D.C.]) 1857-1857, 1857-08-19


thatmy Witnesses testify trutbfuly and honestly but
enormously, because, for some cause or other they
could not sec nor hear what actually did occur
but his witnesses must have seen and heard ali
that did occur, and cannot be in error; they have
therefore, either testified to the truth or committed
perjury must confess do not understand the
logic that leads to such conclusions. IL this the
CRY De correct, no man can defend himself success
fully. IL will be in vain for him to employ coun-
sci and offer evidence upon evidence to relieve him
self from the imputaton of guilt--his conviction
becomes forgone conclusion. But the District
Attorney to maintain his theory that my witnesses
are mistaken, endeavors to show that there is a
material discrepancy in their statements. And
what is it?
Noakes, he says, swears that the fire OF the
Marines at Allston's corner come from the extreme
right of the column. Everett swears that it come
from the centre of the column, and White swears
that 1T come from the extreme left Of the column.
How, ne asks, triumphantly can this discrepancy
be reconciled
And if the witnesses differed SO materially in
this respect is it not fair and reasonable to pre-
sumo that they may be mistaken in regard to the
matter which Brkhead has testified 80 positively
In reply, would beg leave to say that the pre-
else point OF the column Of Marines from which the
fire upon Allstons corner proceeded, is fact about
which the witnesses may very well be in error; il
his own witness Patrick Kearney is to be believed,
for observe, he testified that when the Marines
fired upon Allston's corner, the column was envel-
oped in smoke, which resulted from the previous
hiring. Now, the fact that these witnesses differ
with regard TO the precise points in the column
from which this fire proceeded, when we consider
the distance between them and the Marines, and
the fact that their vision was, to certain extent,
obscured, does not warrant the conclusion that
they were mistaken with regard TO what occurred,
III occurred at all, in their immediate presence,
and according to all the evidence, at CIR near the
very point where they were standing.
But again, gentlemen Of the jury, what sort of
discrepancy Is this, upon which the District Attor-
ney relies TO shake your confidence in the testi-
mony OF the witnesses for the defence "A dis
crepancy in relation to an unimportant and mma.
terial fact, which SO far from weakening the testi
mony OF the Witnesses for the defence, according
TO my apprehension Of the rules Of evidence tends
TO strengthen them and confirm the truth of their
statements. In my reading, | have gathered,
among Others this rule of evidence-and it lisa rule
OF evidence which conforms with my experience
at the bar--that substantial concurrence with cir
cumstantial variety among number of witnesses
10 the surest and safest test of truth In other
words-the fact that witnesses, whoagree in regard
to the prominent and important facts of transac.
ton to which they depose, differ about immaterial
X
statements, is the cearest and strongest evidence
OF their truth and fairness-for this plain and OBJ
yous reason, If they concur in all the particulars
OF transaction, the most minute and trivial cir.
inference is irres istible that they
colluded together in order to deceive-that they
had repeated to each other their respective stories
until they were thoroughly committed to memory,
and ready for delivery. Substantial concurrence,
with crcumstantial variety is one of the best and
strongest proofs of scripture truth. 1t is to this
rule OF evidence, with others, that We appeal for
the the reality of our holy religion
Now gentlemen of the jury, apply this rule of
evidence to the case at the bar and what becomes
of the attack so cautiously and ingeniousy made by
the District Attorney upon the testimony of Noakes
Everett, and White9 Is not the integrity of their
statements indicated to the entire satisfaction
OF every rational and impartial mind? But
here the District Attorney comes at me again, as
serting that / have introduced purely negative
testimony in answer to affirmative testimony on
the part OF the prosecution. And he says that the
testimony of one witness who testifes afrmatively,
is more reliable than the testimony of any number
of witnesses who testify negatively. concede
this to be true, as legal proposition-it is SO
most unquestionably; but the District Attorney
failed TO illustrate, (as think he should have
done, If he desires that we should have fair play
the admitted difference which exists between
these two kinds of evidence. It is impossible for
you, gentlemen of the jury, intelligibly to decide
the question of fact, whether this is case Of
affirmative testimony on the one side, and mega.
tive testimony on the other side, until you have
distinct apprehension of the legal meaning OF
these terms. The illustration put in the law-books
is plain, simple one, to which l would now in
vite your attention Two persons equally credible
are sitting in the room at the same time-one says
he heard the clock strike; the other says he did
not which of the two would you believe? Com
mon sense tells that we should believe the one
who speaks aiirmatively, in preference to the one
who speaks negatively, because the clock, in all
probability, did strike, without the latter observing
it. But suppose the latter should say at the time
referred TO, my attention was directed TO the
clock-my eye was steadily fixed upon it, Tor rea-
sons which he should then proceed to assign, and
1 know it did not strike--of this am positive /;
upon this representation, would not your conf
dence in the man who speaks afirmatively be con-
siderably shakenf
Now, carry the Illustration little farther. Sup.
pose some eight ten persons should say, that at
the time referred to, their attention was directed
to the clock-their eyes fixed steadily upon IL,
assigning for it some good and sufficient reason,
and they we're positive that the clock did not
strike, stated-for if II had they could not pos
| sibly have failed TO observe it. And suppose they
should go further, and say, that at the time refer
red to, there was great acknowledged noise
and confusion all around them Now AJAX, In
such case TO what conclusion would your own
common sense bring you? Most assuredly, that
the witness, who testified afirmatively, was mis-
taken. This, | humbly submit is an illustration
directly in point; for the common law is nothing
more, when properly understood and applied,
than common sense.
Gentlemen of the jury, this is not case Of neg
alive against affirmative testimony but more pro-
erly case Of positive against positive testimony
And if this be So Il must be clear to every rational
and impartial mind, that the weight Of evidence
preponderates in favor of my client and against
the prosecution. Then, if this were merely a
question Of dollars and cents, would be entitled
to demand your verdict-a fortiori, have ! this
right, when the grave and momentous question Of
liberty, character, and all that man holds dear
upon earth, is submitted to your decision. For
imagine IL IA hardly necessary for mo IN ramnd