young men testify, and is a complete answer and refutation of the attempted alibi on Tuesday evening.

I come now to speak of the testimony adduced by the defendant to explain where he was after ten o'clock on the night of the murder. This comes chiefly from members of the family, from his father and brothers.

It is agreed that the affidavit of the prisoner should be received as evidence of what his brother, Samuel H. Knapp, would testify if present. Samuel H. Knapp says that, about ten minutes past ten o'clock, his brother, Frank Knapp, on his way to bed, opened his chamber door, made some remarks, closed the door, and went to his chamber, and that he did not hear him leave it afterwards. How is this witness able to fix the time at ten minutes past ten? There is no circumstance mentioned by which he fixes it. He had been in bed, probably asleep, and was aroused from his sleep by the opening of the door. Was he in a situation to speak of time with precision? Could he know, under such circumstances, whether it was ten minutes past ten or ten minutes before eleven when his brother spoke to him? What would be the natural result in such a case? But we are not left to conjecture this result. We have positive testimony on this point. Mr. Webb tells you that Samuel told him, on the 8th of June, "that he did not know what time his brother Frank came home, and that he was not at home when he went to bed." You will consider this testimony of Mr. Webb as indorsed upon this affidavit, and, with this indorsement upon it, you will give it its due weight. This statement was made to him after Frank was arrested.

I come to the testimony of the father. I find myself incapable of speaking of him or his testimony with severity. Unfortunate old man! Another Lear, in the conduct of his children; another Lear, I apprehend, in the effect of his distress upon his mind and understanding. He is brought here to testify, under circumstances that disarm severity, and call loudly for sympathy. Though it is impossible not to see that his story cannot be credited, yet I am unable to speak of him otherwise. than in sorrow and grief. Unhappy father! he strives to remember, perhaps persuades himself that he does remember, that on the evening. of the murder he was himself at home at ten o'clock. He thinks, or seems to think, that his son came in at about five minutes past ten. He fancies that he remembers his conversation; he thinks he spoke of bolting the door; he thinks he asked the time of night; he seems to remember his then going to his bed. Alas! these are but the swimming fancies. of an agitated and distressed mind. Alas! they are but the dreams of hope, its uncertain lights, flickering on the thick darkness of parental distress. Alas! the miserable father knows nothing, in reality, of all

sons.

these things. Mr. Shepard says that the first conversation he had with Mr. Knapp was soon after the murder, and before the arrest of his Mr. Knapp says it was after the arrest of his sons. His own fears led him to say to Mr. Shepard that his "son Frank was at home that night, and so Phippen told him," or "as Phippen told him." Mr. Shepard says that he was struck with the remark at the time; that it made an unfavorable impression on his mind. He does not tell you what that impression was, but when you connect it with the previous inquiry he had made, whether Frank had continued to associate with the Crowninshields, and recollect that the Crowninshields were then known to be suspected of this crime, can you doubt what this impression was? Can you doubt as to the fears he then had? This poor old man tells you that he was greatly perplexed at the time; that he found himself in embarrassed circumstances; that on this very night he was engaged in making an assignment of his property to his friend, Mr. Shepard. If ever charity should furnish a mantle for error, it should be here. Imagination cannot picture a more deplorable, distressed condition. The same general remarks may be applied to his conversation with Mr. Treadwell as have been made upon that with Mr. Shepard. He told him that he believed Frank was at home about the usual time. In his conversations with either of these persons, he did not pretend to know, of his own knowledge, the time that he came home. He now tells you positively that he recollects the time, and that he so told Mr. Shepard. He is directly contradicted by both these witnesses, as respectable men as Salem affords. This idea of an alibi is of recent origin. Would Samuel Knapp have gone to sea if it were then thought of? His testimony, if true, was too important to be lost. If there be any truth in this part of the alibi, it is so near in point of time that it cannot be relied on. The mere variation of half an hour would avoid it. The mere variations of different timepieces would explain it. Has the defendant proved where he was on that night? If you doubt about it, there is an end of it. The burden is upon him to satisfy you beyond all reasonable doubt. Osborn's books, in connection with what the young men state, are conclusive, I think, on this point. He has not, then, accounted for himself. He has attempted it, and has failed. I pray you to remember, gentlemen, that this is a case in which the prisoner would, more than any other, be rationally able to account for himself on the night of the murder if he could do so. He was in the conspiracy, he knew the murder was then to be committed, and, if he himself was to have no hand in its actual execution, he would of course, as a matter of safety and precaution, be somewhere else, and be able to prove afterwards that he had been somewhere else. Having this motive to prove himself

elsewhere, and the power to do it if he were elsewhere, his failing in such proof must necessarily leave a very strong inference against him. But, gentlemen, let us now consider what is the evidence produced on the part of the government to prove that John Francis Knapp, the prisoner at the bar, was in Brown street on the night of the murder. This is a point of vital importance in this cause. Unless this be made out, beyond reasonable doubt, the law of presence does not apply to the case. The government undertakes to prove that he was present, aiding in the murder, by proving that he was in Brown street for this purpose. Now, what are the undoubted facts? They are that two persons were seen in that street, several times during that evening, under suspicious circumstances,-under such circumstances as induced those who saw them to watch their movements. Of this there can be no doubt. Mirick saw a man standing at the post opposite his store from fifteen minutes before nine until twenty minutes after, dressed in a full frock-coat, glazed cap, and so forth, in size and general appearance answering to the prisoner at the bar. This person was waiting there, and, whenever anyone approached him, he moved to and from the corner, as though he would avoid being suspected or recognized. Afterwards, two persons were seen by Webster walking in Howard street with a slow, deliberate movement that attracted his attention. This was about half-past nine. One of these he took to be the prisoner at the bar; the other he did not know. About half-past ten a person is seen sitting on the rope-walk steps, wrapped in a cloak. He drops his head. when passed, to avoid being known. Shortly after, two persons are. seen to meet in this street, without ceremony or salutation, and in a hurried manner to converse for a short time, then to separate, and run off with great speed. Now, on this same night, a gentleman is slain,murdered in his bed,-his house being entered by stealth from without, and his house situated within three hundred feet of this street. The windows of his chamber were in plain sight from this street. A weapon of death is afterwards found in a place where these persons were seen to pass, in a retired place, around which they had been seen lingering. It is now known that this murder was committed by four persons, conspiring together for this purpose. No account is given who these suspected persons thus seen in Brown street and its neighborhood were. Now I ask, gentlemen, whether you or any man can doubt that this murder was committed by the persons who were thus in and about Brown street. Can any person doubt that they were there for purposes connected with this murder? If not for this purpose, what were they there for? When there is a cause so near at hand, why wander into conjecture for an explanation? Common sense requires you to take the

nearest adequate cause for a known effect. Who were these suspicious persons in Brown street? There was something extraordinary about them; something noticeable, and noticed at the time; something in their appearance that aroused suspicion. And a man is found the next morning murdered in the near vicinity. Now, so long as no other account shall be given of those suspicious persons, so long the inference must remain irresistible that they were the murderers. Let it be remembered. that it is already shown that this murder was the result of conspiracy and of concert; let it be remembered that the house, having been opened from within, was entered by stealth from without; let it be remembered that Brown street, where these persons were repeatedly seen under such suspicious circumstances, was a place from which every occupied room in Mr. White's house is clearly seen; let it be remembered that the place, though thus very near to Mr. White's house, is a retired and lonely place; and let it be remembered that the instrument of death. was afterwards found concealed very near the same spot. Must not every man come to the conclusion that these persons thus seen in Brown street were the murderers? Every man's own judgment, I think, must satisfy him that this must be so. It is a plain deduction of common sense. It is a point on which each one of you may reason like a Hale or a Mansfield. The two occurrences explain each other. The murder shows why these persons were thus lurking, at that hour, in Brown street, and their lurking in Brown street shows who committed the murder. If, then, the persons in and about Brown street were the plotters and executors of the murder of Captain White, we know who they were, and you know that there is one of them. This fearful concatenation of circumstances puts him to an account. He was a conspirator. He had entered into this plan of murder. The murder is committed, and he is known to have been within three minutes' walk of the place. He must account for himself. He has attempted this, and failed. Then, with all these general reasons to show he was actually in Brown street, and his failures in his alibi, let us see what is the direct proof of his being there. But first let me ask, is it not very remarkable that there is no attempt to show where Richard Crowninshield, Jr., was on that night? We hear nothing of him. He was seen in none of his usual haunts about the town. Yet, if he was the actual perpetrator of the murder, which nobody doubts, he was in the town somewhere. Can you therefore entertain a doubt that he was one of the persons seen in Brown street? And as to the prisoner, you will recollect that, since the testimony of the young men has failed to show where he was on that evening, the last we hear or know of him on the day preceding the murder is that at four o'clock p. m. he was at his brother's in Wenham. He had left

home, after dinner, in a manner doubtless designed to avoid observation, and had gone to Wenham, probably by way of Danvers. As we hear nothing of him after four o'clock p. m. for the remainder of the day and evening; as he was one of the conspirators; as Richard Crowninshield, Jr., was another; as Richard Crowninshield, Jr., was in town. in the evening, and yet seen in no usual place of resort, the inference is very fair that Richard Crowninshield, Jr., and the prisoner were together, acting in execution of their conspiracy. Of the four conspirators, J. J. Knapp, Jr., was at Wenham, and George Crowninshield has been accounted for, so that, if the persons seen in Brown street were the murderers, one of them must have been Richard Crowninshield, Jr., and the other must have been the prisoner at the bar.

Now as to the proof of his identity with one of the persons seen in Brown street. Mr. Mirick, a cautious witness, examined the person he saw closely, in a light night, and says that he thinks the prisoner at the bar is the person, and that he should not hesitate at all if he were seen in the same dress. His opinion is formed partly from his own observation, and partly from the description of others; but this description turns out to be only in regard to the dress. It is said that he is now more confident than on the former trial. If he has varied in his testimony, make such allowance as you may think proper. I do not perceive any material variance. He thought him the same person when he was first brought to court, and as he saw him get out of the chaise. This is one of the cases in which a witness is permitted to give an opinion. This witness is as honest as yourselves, neither willing nor swift; but he says he believes it was the man. His words are, "This is my opinion," and this opinion it is proper for him to give. If partly founded on what he has heard, then this opinion is not to be taken; but if on what he saw, then you can have no better evidence. I lay no stress on similarity of dress. No man will ever lose his life by my voice on such evidence. But then it is proper to notice that no inferences drawn from any dissimilarity of dress can be given in the prisoner's favor, because, in fact, the person seen by Mirick was dressed like the prisoner. The description of the person seen by Mirick answers to that of the prisoner at the bar. In regard to the supposed discrepancy of statements, before and now, there would be no end to such minute inquiries. It would not be strange if witnesses should vary. I do not think much of slight shades of variation. If I believe the witness is honest, that is enough. If he has expressed himself more strongly now than then, this does not prove him false. Peter E. Webster saw the prisoner at the bar, as he then thought, and still thinks, walking in Howard street at half-past nine o'clock. He then thought it was Frank Knapp, and