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suspected, mainly because of his bad reputation and the fact that he was an associate of a profligate female of the town, but after an examination, his father having sworn that he was at home in bed with him at the time, he was discharged from custody. To get him away from his associations he was sent to Maine to look for employment. But he did not get any; he came back very soon and was again lodged in jail. Within the same walls was confined the wanton Hannah Downes, to whom he smuggled a note telling her that he had started the fires. She immediately informed the authorities and told them also that he had confessed his crime to her the day after, and before he was arrested the first time.

He was tried for arson before three of the Supreme Court Judges at Salem in October, 1821. It was proved that he had admitted his guilt not only to Hannah Downes but to several others who had visited him while in jail. And it was shown that on his examination before the magistrate while he at first denied his guilt, yet upon being apprised of the woman's testimony he voluntarily and fully confessed, after he had been told that the punishment of the crime was death; that he was not bound to criminate himself and that whatever he said would be given in evidence against him at the trial. His counsel tried to establish an alibi, but it was rejected by the jury; he was found guilty and a month later was hanged.

Before his execution he made a written confession in which he charged that Hannah Downes persuaded him to set the fires; that he had no other accomplice and that what he did was done on her account.

employment or restraint; and spent his time in vile company and wanton mischief, insulting all who rebuked him for his conduct with the most hardy insolence. Thus abandoned to vice and profligacy, his unfortunate father, who had been unable to reclaim or restrain him, fearing that he was "fatally bent on mischief," applied to the selectmen, a few days before the fire, which brought him to the scaffold, to confine him; and upon their declining to interfere, he was compelled to make a formal complaint before a magistrate, and took out a warrant to arrest him; but upon a show of penitence and promise of amendment, he directed the officer not to serve the warrant at that time; and it was reserved in terrorem. "Account of Life of Stephen M. Clark." Post, p. 599.

THE TRIAL.2

In the Supreme Judicial Court of Massachusetts, Salem,

October, 1821.

1820

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February 14. Stephen Merrill Clark, a minor, aged sixteen, was set at the bar under an indictment charging him with having at the town of Newburyport, Massachusetts, set on fire a stable, and that thereby "the dwelling house of Andrew Frothingham, Esq., also there situate was then and there in the night time,' on August 19, 1820, burned and consumed. He pleaded Not Guilty.

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David Davis, Solicitor General for the Commonwealth; John G. King, John Pickering and Leverett Saltonstall,10 for the prisoner.11

6 See 4 Am. St. Tr. 99.

7 See 3 Am. St. Tr. 551.

2 Bibliography. "Report of the Evidence, Arguments of Counsel, Charge and sentence at the Trial of Stephen Merril Clark, for Arson, Before the Supreme Judicial Court, February 15, 16 and 17, 1821. Salem. Published by T. C. Cushing and W. Palfray, Jun., 1821." "Account of the Short Life and Ignominious Death of Stephen Merrill Clark, Who Was Executed at Salem on Thursday the Tenth Day of May, 1821, at the Early Age of 16 Years and 9 Months, for the Crime of Arson. Salem. Published by T. C. Cushing, 1821."

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3 See 1 Am. St. Tr. 108.

4 THACHER, GEORGE. (1754-1824.) Born Yarmouth, Me. Delegate from Massachusetts to Continental Congress, 1787. Representative from Massachusetts 1st to 6th United States Congress. District Judge Maine, 1792-1800. Justice Supreme Court of Massachusetts, 1801-1824. Died in Beddeford, Me.

5 See 1 Am. St. Tr. 108.

8 See post, p. 612.

9 PICKERING, JOHN. (1777-1846.) Born Salem, Mass. Practiced law in Boston. Was also a linguist and author of eminence. Died in Boston.

10 SALTONSTALL, LEVERETT. (1783-1845.) Born Haverhill, Mass. State Senator 1831. Mayor of Salem, 1836-1878. Member State

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1821

February 15,

The Prisoner's Counsel challenged peremptorily twenty jurors, and one for cause assigned, that the juror had expressed an opinion that the prisoner ought to be hung. One juror of the denomination of Friends, was set aside on the motion of the Solicitor General, because he entertained doubts of the right of governments to institute capital punishments. The following panel was then sworn:

Amos Osborn, Foreman, Danvers; John Barker, Andover; Phineas Barnes, Boxford; Daniel Butman, Wenham; Joseph Bowden, Marblehead; Stephen Chard, Gloucester; Samuel Cheever, Manchester; Nathaniel Felton, Danvers; John MeKenzie, Topsfield; John Osgood, West Newbury; James Stone, Marblehead; Freeborn Woodbury, Beverly.

THE SOLICITOR GENERAL'S OPENING.

Mr. Davis. Gentlemen of the Jury: The duties and responsibilities which devolve upon me, in the important and interesting trial which we have now commenced, have created in me the greatest anxiety. This anxiety is much increased by a severe indisposition under which I have been suffering for several weeks, and with which I am still oppressed. I shall therefore hope for your indulgent and candor during the progress of this arduous trial, in the conducting of which my only object will be, to discharge my duty with faithfulness to the Government, which I have the honor to represent, and with liberality towards this unhappy youth, whose crimes have brought him to the bar of his country.

The crime of arson consists in the wilful and malicious burning of the dwelling house of another, in the night time; or the wilful and malicious setting fire to any other build

Legislature for several terms and Presidential Elector, 1837. Member of Congress for three terms. Died in Salem, Mass.

11 Mr. Saltonstall was on February 14th assigned by the Court as counsel for the prisoner but the next day was excused on account of illness, and Mr. Pickering appointed in his stead.

ing, by the burning of which the dwelling house of another shall be burnt in the night time. The particular charge in this indictment is, that on the night of the 17th of August last, the prisoner wilfully, maliciously, and feloniously set fire to a stable belonging to Phebe Cross; by the burning of which stable, the dwelling house of one Andrew Frothingham, Esq., was wilfully, maliciously and feloniously burnt and consumed, in the night of the same day.

This is one of the most dangerous and atrocious crimes which is to be found in the black catalogue of capital offenses. It is always committed from motives of the purest 1 malice. In the commission of many of the other capital offenses, it may be conceived that something like temptation may exist, though nothing that can amount to a justification or excuse. In treason, the highest crime that can be committed against the laws and constitution, the perpetrator may be often persuaded that he is not only entirely guiltless, but that he is actuated by the highest motives and feelings of a patriot. In murder, the deluded and unprincipled offender may sometimes be instigated by a hope of gain, or by the weaknesses and frailties of the human heart, for which a slight palliation may be sometimes indulged. This is always the case in the crimes of robbery and burglary; the temptation to wicked and unhallowed gain, is, in the commission of these crimes, usually lurking in the heart, and prompting the culprit to the execution of his nefarious purpose. But in the perpetration of the crime of which the prisoner at the bar is now accused, there can exist no motive other than that imputed to him in the indictment, viz.: That the fear of God was not before his eyes, and that he was moved and seduced by a diabolical heart and disposition. Nothing can be contemplated or expected in the perpetration of this crime, but the most terrible and appalling devastation and destruction of the lives and property of the innocent, without the least possible advantage to the malicious offender; nothing but the gratification of the worst and most diabolical passions of the human heart.

The present case presents the horrible effects of this crime

in its most odious and appalling character. The conflagration in which the peaceable and happy dwelling of Mr. Frothingham was involved, threatened a wide and terrific desolation to the inhabitants of the town of Newburyport, which upon this, as well as upon a former still more distressing occasion, seemed devoted to destruction by the hand of an incendiary. Three dwelling houses, and five or six other buildings, in the peaceful silence of the night, were set fire to and totally consumed-the lives of the old and the young exposed to instant destruction in the most terrible form that imagination can conceive-without provocation, preparation or offense. For the prevention of such accumulated distress, all the energies of society must be combined and carried into effect-and unless this can be effectually done, all the objects and enjoyments of life are rendered of no value.

On the other hand, this case interests our feelings in a high degree, on account of the youth and tender age of the prisoner. Whatever crimes or irregularities may have marked and disgraced his conduct at this early period of his life, he is unquestionably a youth of uncommon intellect; and if he had pursued a correct course, might have been a useful member of society.

With these remarks, gentlemen, I will now submit to you a statement of the evidence, which I shall produce on the part of the Commonwealth, in support of this prosecution.

This evidence will substantiate the following facts: That the fire in Mrs. Cross' stable, by which Mr. Frothingham's dwelling house was burnt, was set and kindled on the night of the 18th of August last-that it broke out first on the easterly side of that stable-that it was first discovered by Mr. Fitz, a citizen and magistrate of the town, between two and three o'clock in the morning-that Mr. Fitz immediately alarmed the family of Mr. Frothingham, whose house was on the opposite side of Temple street, in which the stable was situated that the fire spread and was communicated to two other dwelling houses, and five other buildings, all of which were burnt to the ground. That, from certain facts, to which

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