town, there is not only danger of vast destruction of property, but of the loss of multitudes of lives; and the peace and security of the whole community is at risk. If ever it is right for the Government to take the life of a subject, it is in such

a case.

I make these remarks, because, if you are satisfied, upon mature deliberation, that the defendant is guilty of the offense charged upon him, it will then be your duty to convict him, and not to hesitate from any scruples as to the propriety of the law, or from a persuasion that you would not have sanctioned it, had you been in the Legislature. Even if this were your opinion, it would be wrong to be influenced by it; for it would go to the destruction of society, if individuals, when duly called upon to execute the laws, should decline acting because they considered them too severe, or entertained doubts of the right of society to punish any crime with death.

Still, however, we should consider that in a case where the consequences are so tremendous, it is the duty of all to proceed with extreme caution. The mind should be left open to consider every circumstance in favor of the accused. But your judgment must be kept calm and collected; and, if after all, you cannot be of opinion that the testimony will authorize you to acquit the prisoner, you must return your verdict of guilty and leave him to the due course of law.

It is incumbent upon the Government, in the first place, to show that the dwelling house of Mr. Frothingham was burnt in the night time, in the manner set forth in the indictment. Upon this point you will probably have no doubt. But a question may arise, whether there are not circumstances to induce a reasonable doubt, if the burning was occasioned by an incendiary. It is suggested by the prisoner's counsel that it might have been accidental. But in all examinations we are not to look to extreme cases, or slight probabilities. We are to consider what are the common and ordinary occurrences of life, and to draw our presumptions from that source.

In this case, the first was first seen at two o'clock at night, bursting forth from a stable. There is no evidence that any

one had been in the stable at a late hour on the evening previous. Without anything further, then, is there not a strong presumption that it was the work of an incendiary?

To prove the guilt of the prisoner, the government rely principally, if not wholly, upon his cocnfessions. His counsel, in their anxious but laudable zeal, have made some observations upon the nature of confessions, which require a few remarks. Though it be true that evidence of confessions is to be received with great caution, yet, when well and satisfactorily proved, they are the best species of evidence, better than the direct testimony of one who should testify that he saw the party accused set a lighted torch to the building. In the latter case, doubts may arise as to the identity of the person, or the intention with which he did the act, and of the veracity of the witness. But in the case of a voluntary confession by one of sufficient intelligence to know the nature and consequences of his crime, no such doubt can exist. If, upon considering all the circumstances, you are fully satisfied that the confessions were freely made, and that the prisoner was in the possession of his faculties, you must convict him, unless from the defense set up, the effect of this evidence should be destroyed. It will not do in such case for courts or juries to stop at possibilities. Doubts may be raised in all the concerns of life, and we should never perform any duty, if we were to wait till every possible doubt was removed. It is not to be presumed that a person possessing apparently common intellgence, and uninfluenced by threats or promises, would confess himself guilty of an offense which would subject himself to restraint of liberty or loss of life, unless he were really guilty. Such a case may possibly occur once in an age, but such rare occurrences are not to destroy the general rule.

The first confession relied upon by the Government is sworn to by Hannah Downes and Sally Chase. Their testimony you will recollect. The counsel for the prisoner, to invalidate it, have given evidence of their being women of abandoned characters. The Court have heretofore decided that evidence showing that a female witness is a common prostitute may be

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submitted to the jury, to affect her credibility; that such women are indeed competent witnesses, but having set at defiance all the laws of decency, and whatever renders the female character respectable, the jury may presume that they they have no regard to the sanctions of an oath, and therefore may reject their testimony. You will consider the evidence introduced to discredit these witnesses, and if you shall be of opinion that they belong to that abandoned class of women, you may lay their evidence out of the case, unless corroborated by other circumstances.

The testimony next to be considered is that of Mr. Wade. He arrested the prisoner when passing through Ipswich, after having decoyed him into his house. The circumstances. of his appearing in Ipswich at this time, and upon the road to Newburyport, you will consider, so far as it tends to corroborate the testimony of the women as to his intention of returning.

His counsel, in remarking upon Mr. Wade's testimony, spoke of his taking the prisoner and carrying him to Newburyport without a warrant. Upon this subject, we think it proper to observe, that it is not only the right but the duty of every citizen to arrest any one who is reasonably suspected of so high a crime. He is justified even in decoying him, and may, without a warrant, carry him before a magistrate. He acts indeed at his peril, and he will be held to pay damages to the party injured, unless he had reasonable cause for making the arrest. The circumstances of the prisoner's being carried to Mr. Woart's office, and of his conduct and confessions when there, are next to be considered.

His counsel contend that the confessions which he then made, as well as those subsequent, were obtained from him by undue means, or when under duress.

It is a principle of our Constitution, well understood by all classes of citizens, that no person can be condemned without a trial, and that he is not bound to convict himself. It is not therefore to be presumed, that when a person confesses a crime charged against him, he does it from an apprehension

that he is compelled to confess. It does not appear that the prisoner made the confession at Mr. Woart's office in consequence of any threats or promises. Mr. Prince told him. indeed that it would be better for him to confess, but he after this persisted in denying that he was guilty. It was not till he had been informed that he was betrayed, that he made the confession. You will, however, take the whole evidence into consideration, and if you believe that he was under terror in consequence of the array of authority against him, or from any other cause, and that he was thereby induced to make the confession, you will not conceive it as sufficient to justify a verdict against the prisoner, of itself.

The Court deliberated upon this part of the cause, when the evidence was offered, and were not satisfied that the confession was unduly obtained. Had we been so satisfied, we should have rejected it as incompetent. We therefore suffered it to be submitted to you, for you to give it the weight you think it deserves-it being the province of the jury alone to determine the effect of evidence.

It is proper here to remark that perhaps all the subsequent confessions are to be placed on the same footing with the last considered-for after making one confession he would. be naturally under an apprehension that he must persist in what he had said. And if there was an undue influence at the beginning, that it would be likely to continue.

I have been considering the confessions made to Mr. Woart and others, as independent of those made to the women. But if you believe that the confession made to Mr. Woart was made under circumstances, as that by itself you might not be willing to consider it conclusive evidence, you will consider how far it is corroborated by, and corroborates, that sworn to by Hannah Downes. So if you have doubts as to her credibility, yet you will consider how far she is confirmed in the minute relation of the manner in which the fire was communicated, by the prisoner's having related precisely the same circumstances to Mr. Woart and the other witnesses. You may believe her statement to be correct, though she herself is not entitled to full credit on account of her char

acter, if what she testify is sufficiently supported by other evidence.

If the evidence against the prisoner, before considered, is so strong, as that you cannot resist the conclusion that he is guilty, you will then look to the other part of the defense.

The prisoner's counsel have attempted to prove what is called an alibi. If this is proved to your satisfacton, you must acquit him, however, nice and accurate the previous chain of testimony against him may appear. An alibi, if well made out, is the best evidence of innocence. But considering that it depends generally on a nice calculation of time, it is in practice often found to be the weakest species of evidence. The witnesses for the prisoner may honestly err as to the precise point of time that he was with them. The sisters say that they returned home with him about five or ten minutes before nine. Had it been twenty or thirty minutes, there would have been a sufficient interval before nine for him to have accomplished the crime with which he is charged. Their testimony is also irrenconcilable with that of several witnesses on the part of the Government-but particularly that of Sweet, as to the time of his coming into his shop to light a cigar.

Gentlemen, I trust that you will proceed to the examination of this important cause, with candid minds, and will come to a conclusion in favor of the prisoner, if you can consistently with the rules of law and the evidence which has been exhibited. But if you cannot, you know your duty to the Government, and you will not shrink from your responsibility. Addresses are often made by the counsel for prisoners in capital trials, to the feelings of the jury. But it is the duty of jurors to exercise their judgment, without being influenced by motives of compassion. They are frequently reminded of the exceeding delicacy of their situation, and called upon to consider the awful consequences of their verdict. But their situation is not more difficult and distressing than that of other officers of justice, who are obliged to take a part in such anxious inquires. No man is fit for such an important station, who has not strength of mind to resist his natural emotions, when they come in competition with the dictates of