Dealings With The Dead Volume I Part 31

Colvin recognized his children; but marvelled how they came in Manchester, a.s.serting, that he left them, at the house of his kind benefactor, Mr.

Polhamus, in New Jersey. Of his wife, who came to see him, he took little notice, a.s.serting, that she did not belong to him. There may have been enough of method, in his madness, to enable him to appreciate, correctly, the value of his marital relation. The breath of Manchester may have blown the truth into his ear. An ingenious person may find some little resemblance between the wanderings of Ulysses and those of Colvin the _Oudeis_ of Manchester--but the testimony, upon the trial, peremptorily forbids the slightest comparison, between Penelope and Mrs. Colvin, who appears not to have embarra.s.sed her suitors, with the preliminary ordeal of the bow.

There is an admirable painting, in the Boston Athenaeum, by Neagle, of Patrick Lyon, the blacksmith, who was long imprisoned, in Philadelphia, for the robbery of a bank, of which crime he was perfectly innocent, as it finally appeared, to the entire satisfaction of the government, by whom he was, consequently, discharged. Lyon is represented, at his forge; and he desired the artist to introduce the Walnut Street prison in the rear, where he had suffered, so unjustly, and so long.

The graphic hand of a master might do something here. I would pay more than I can well afford, for a couple of ill.u.s.trative paintings--I. The Judges, with tears in their eyes, sentencing Stephen and Jesse to be hanged, for the murder of Colvin--the best books on evidence, before them, and open at the pages where it is expressly stated that extra-judicial confession, under fear of death, and hope of pardon, shall never be received--and the leaf turned down, at the authority of Sir Matthew Hale, that no conviction ought ever to take place, upon trials for murder and manslaughter, till the fact be clearly proven, or the _dead body_ be discovered.

II. The dungeon, Dec. 22, 1819, just thirty-six days, before the time, appointed for the execution of Stephen--the murderer and the murdered man, standing face to face, in full life--Squire Raymond still avowing his conviction of Stephen's guilt, and holding aloft his written confession--Judge Chace seen in the distance, burying the "_certified minutes of evidence_" in the very hole, pointed out, to Nathaniel Boorn, by Colvin's ghost--and Judge Doolittle evidently regretting, that he had not done less, in this unhappy transaction, which came so near the consummation of judicial murder.

In the succeeding number, I shall endeavor to present a simple version of the motives and conduct of the parties--and some brief remarks, upon this extraordinary trial.

No. Lx.x.xIV.

After a little reflection, the true explanation of this apparent mystery appears to be exceedingly simple. Colvin had become an object of contempt and hatred to the Boorns; and especially to Stephen. His mental feebleness had produced their contempt--the burdensomeness of himself and his family had begotten their hatred. The poor, semi-demented creature happened, in a luckless hour, to boast, most absurdly, no doubt, of his great importance and usefulness, as a member of this interesting family. This gave a doubly keen edge to the animosity of Stephen; and he berated his brother-in-law, in terms, almost as vulgar and abusive, as those we daily meet with, in so many of our leading political journals, of all denominations.

Forgetful of his inferiority, this miserable worm exemplified the proverb, and turned upon his oppressor, in a feeble way. He struck Stephen with "_a small riding stick_." This was accounted sufficient provocation by Stephen; and, in the language of the witness, "_Stephen then struck Russell on his neck with a club, and knocked him down_." He rose, and made a slight effort to renew the battle, and then Stephen again knocked him down. Upon this, Colvin rambled off, towards the mountain, and was seen in that region, no more, till he was brought back, after the expiration of seven years, in December, 1819.

He went off without his hat and shoes; whether, in his effort to shake off the dust of that city, he unconsciously shook off his shoes, is unknown.

The discovery of the hat, some years after, formed a part of that wretched _rope of sand_, for it is not worthy of being called a _chain of evidence_, upon which Stephen and Jesse were sentenced to death. Colvin had, doubtless, long been aware, that he was an object of hatred to the Boorns. The blows, inflicted upon this occasion, undoubtedly, aggravated his insanity; yet enough remained of the instinctive love of life, to teach him, that his safety was in flight. How he found his way to that part of New Jersey, which lies near the Atlantic Ocean, is of little importance. He was, notoriously, a wanderer. It was the spring of the year. He moved onward, without plan, camping out, among the bushes, or sleeping in barns; the world before him, and Providence his guide. He, probably, rambled from Manchester, which is in the southwest corner of Vermont, into the State of New York, which lies very near; and, wandering, in a southerly direction, along the westerly boundary lines of Ma.s.sachusetts and Connecticut, he would, before many days, have entered the northerly part of New Jersey.

Accustomed to his occasional absences, the Boorns, undoubtedly, expected his return, for weeks and months, even though the summer had past, and the harvest had ended. But, after the snows of winter had come, and covered the mountains; and the spring had returned, and melted them away; and Colvin came not; then Stephen Boorn, doubtless, began to fear, that he had, unintentionally, killed him--that he had wandered away, and died of the effects of the blows he had received--and that his bones were bleaching, in some unknown part of the mountain, whither he had wandered, immediately after the occurrence.

Upon this hypothesis, alone, can we explain one remarkable word, in the answer of Stephen to Merrill's question, in the jail, as certified, by Judge Chace, in his minutes--"_I asked him, if he did take the life of Colvin.--He said he did not take the_ main _life of Colvin. He said no more at that time._"

Does any reflecting man inquire--what could have induced these men to confess the crime, with such a particular detail of minute, and extraordinary, circ.u.mstances? The answer has already been given, in part.--Stephen, doubtless, believed it to be quite probable, that he had been the means of Colvin's death. To explain the motive for confession, more fully, it is only necessary to stand, for one moment, in the prisoner's shoes. He was a.s.sured, by "Squire Raymond," and others, in whom he confided, that no doubt was entertained of his guilt--that his case was dark--and that his only hope lay in confession.

His mind was brought to the full and settled belief, that he should be hung, before many days, _unless he confessed_. If he had confessed the simple truth--the quarrel--the blows--the departure of Colvin--all this would have availed him nothing. It was not this, of which "Squire Raymond," and others, had _no doubt he was guilty_. They had no doubt he was guilty of the _murder_ of Colvin. No confession of anything, short of _the murder of Colvin_, would satisfy "Squire Raymond," and induce him to "pet.i.tion the legislature in favor" of the prisoner! Stephen well knew, that, if he confessed the murder of Colvin, it would be immediately asked--where he had buried the body--a puzzling question, it must be confessed, for one, who had committed no murder. But it was a delicate moment, for Stephen. It was necessary for him to stand, not only _rectus in curia_--but _rectus_ with "Squire Raymond," and all his other attentive patrons. He therefore, to save his life, and secure the patronage of the "Squire," strung together a terrible tissue of lies, too manifestly preposterous and improbable, even for the credulous brain of Cotton Mather, in 1692. He relieved himself of all embarra.s.sment, in regard to the dead body of the _living_ Colvin, by _confessing_, that he first buried it, in the earth--then took it up and reburied it, under a barn--and, after the barn had been burnt, took up the bones again, and cast them into the Battenkill river.

The confession of Jesse was made, when he was aroused from sleep, at midnight, under the impression, as he stated, at the time, that "_something had come in at the window, and was on the bed beside him_"--somewhat extra-judicial, this confession, to be sure. This Jesse appears to have been a most unfilial scoundrel; for, instead of _confessing_, as Stephen had _confessed_, that Stephen himself killed Colvin, single-handed and alone; Jesse catered, more abundantly, to the popular appet.i.te for horrors, by _confessing_ that his old father, Barney Boorn, "_d.a.m.ned_" his son-in-law, Colvin, very frequently, and "_cut his throat with a small penknife_." All this clotted ma.s.s of inconsistent absurdity, extorted by hope and fear, his honor, Judge Chace, received, as legal evidence, and gravely certified up to the General a.s.sembly of Vermont.

It is true, Judge Chace, as we have stated, rejected the written confession of Stephen, because Raymond swore, as follows--"_I have heard Mr. Pratt and Mr. Sheldon tell Jesse Boorn, that if he would confess, in case he was guilty, they would pet.i.tion the legislature for him--I have made the same proposition to Stephen myself, and always told him I had no doubt of his guilt, and that the public mind was against him._" It is needless to expatiate on the gross impropriety of addressing such language to a prisoner, under such circ.u.mstances.

But the witness, Farnsworth, was then produced to prove Stephen's oral confession, that he killed Colvin. It appears, by the minutes, certified by Judge Chace, that he put the preliminary questions, and that the witness swore, "that neither he nor anybody else, _to his knowledge_, had done anything, directly or indirectly, to influence the said Stephen to the _talk_ he was about to communicate." In vain, the prisoners' counsel protested, that the evidence was inadmissible, because the "_talk_"

between Stephen and Farnsworth was subsequent to the proposition made to Stephen by Raymond. In vain they pressed the consideration, that if, on this ground, the written confession had been rejected, the oral confession should also be rejected. In vain they offered to prove other proposals and promises, made to the prisoners, at other times, _before_ the conversation, now offered to be proved. Nothing, however, would stay their honors, from gibbetting their judicial reputation, in chains, which no time will ever knock off. They suffered Farnsworth to testify; and he swore, that Stephen told him, "about two weeks _after_ the written confession, that he killed Colvin," &c. This must have been about September 10, 1819, and, of course, before the trial, when he was still relying on the promises of Squire Raymond, and others.

The prisoners' counsel very judiciously moved, for the reception of the written confession, and it was read accordingly. Unable to restrain the judicial antics of the Court, it appeared to be the only course, for the prisoners' counsel, to throw the whole crude and incongruous ma.s.s before the jury, and leave its credibility, or rather, its palpable incredibility, to their decision. It would be desirable, as a judicial curiosity, to possess a copy of Judge Chace's charge. Of his instructions to the jury he says nothing, in his certified statement to the General a.s.sembly.

Now, apart from the confessions of these men, extorted, so clearly, by the fear of death, and the hope of pardon, there was evidence enough to excite _suspicion_, and there was no more: but, the law of our country convicts no man of murder, or manslaughter, upon _suspicion_. I shall conclude my remarks, upon this interesting case, in the following number.

No. Lx.x.xV.

The chains of Stephen Boorn were stricken off, and Jesse was liberated from prison. They were men of note. If there were not _giants_, there were _lions_, in those days. Colvin soon became weary of standing upon that dizzy eminence, where circ.u.mstances had placed him. He had a painful recollection, no doubt, more or less distinct, of the past: and, after he had served the high purpose, for which he had been brought from New Jersey, he expressed an earnest wish to return to the home of his adoption; where he had found, in the good Mr. Polhamus, a friend, who had considered the necessities and distresses of his body and mind; and, who had been willing, in return for his feeble services, to give him shelter and protection.

The Boorns had, undoubtedly, a fortunate, and, almost a miraculous, escape. So had their honors, the Judges, Chace and Doolittle. Their first meeting, after the _denouement_, must have been perfectly tragi-comical.

Their escape from an awful precipice may admonish all, who sit, in judgment, upon the lives of their fellow-men, to administer the law, with extreme caution, and with a high and holy regard, for those well-established principles, and rules, which can never be disregarded, with impunity. G.o.d forbid, that any humble phraseology of mine should, for an instant, be perverted, to mislead the meanest understanding--to foster those principles, which, for the purpose of extending mercy, undeserved, to the murderer, would heap gross injustice and cruelty, upon the whole community--to break down the positive law of G.o.d, which Jesus Christ declared, that he came to confirm; and, in its place and stead, to erect the sickly decrees of a society of philandering puppets, whose wires are notoriously pulled, by certain professional and political managers.

In the commencement of my remarks, upon this romance of real life, I endeavored to forefend, against the suspicion of undervaluing that species of evidence, which is called presumptive, or circ.u.mstantial. It is accounted, by the most able writers, on this branch of jurisprudence, of the highest quality. Thus, in his admirable work, on Evidence, vol. i.

sec. 13, Professor Greenleaf remarks, that, in both civil and criminal cases, "_a verdict may well be founded on circ.u.mstances alone; and these often lead to a conclusion, far more satisfactory than direct evidence can produce_."

The errors, committed by the Judges, upon the trial of the Boorns--and those errors were egregious--were twofold--the admission of extra-judicial confessions, manifestly extorted by hope and fear--and suffering a conviction to take place, before the dead body of the person, alleged to have been murdered, had been discovered.

The rule, on the subject of confessions, is sufficiently plain.

"_Deliberate confessions of guilt_," says Mr. Greenleaf, ibid. sec. 215, "are among the most effectual proofs in the law." But they should be received and weighed with caution; for, as he remarks, sec. 214--"it should be recollected, that the mind of the prisoner himself, is oppressed by the calamity of his situation, and that he is often influenced by motives of hope or fear, to make an untrue confession." Mr. Greenleaf then proceeds to say, in a note on this pa.s.sage--"of this character was the remarkable case of the two Boorns," &c., and proceeds to give a summary of the case.

"In the United States," says Mr. Greenleaf, ibid. sec. 217, "the prisoner's confession, when the _corpus delicti_ is not otherwise proved, has been held insufficient, for his conviction; and this opinion, certainly, best accords with the humanity of the criminal code, and with the great degree of caution, applied in receiving and weighing the evidence of confessions, in other cases; and it seems countenanced by approved writers, on this branch of the law."

Again, ibid. sec. 219, he remarks--"Before any confession can be received, in evidence, in a criminal case, it must be shown, that it was _voluntary_. * * * * 'A free and voluntary confession,' said Eyre, C. B., 'is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt, and therefore it is admitted as proof of the crime, to which it refers; but a confession forced from the mind, by the flattery of hope, or by the torture of fear, comes in so questionable a shape, when it is to be considered as the evidence of guilt, that no credit ought to be given to it; and therefore it is rejected.'"

Unfortunately, Judges Chace and Doolittle thought otherwise; and brought themselves and the condemned, upon the very threshold of a terrible catastrophe.

Mr. Greenleaf, in the note, above referred to, alludes to an article, in the North American Review, vol. 10, p. 418, in which this case of the Boorns is examined. It was from the pen of a gentleman, whose high professional prospects were blasted, by an early death. This writer had seen nothing, however, but "_a very imperfect report of the trial_." His article was published, in April, 1820, about four months after the discovery of Colvin. The conclusions, at which he arrives, that the confessions ought not to have been admitted, would have gained additional strength, had he inspected the _certified minutes_, taken on the trial, by the Chief Justice.

Had he seen those certified minutes of the evidence, he would scarcely have described the utter inconsistency of the two confessions, by the inadequate phrase--"_there are differences between them_:" for Stephen's claims the whole act of killing to himself--while Jesse's charges the father, who was notoriously not present, with cutting Colvin's throat, while he was yet living, and after Stephen had given him a blow.

This writer relies strongly, upon the humane caution of Sir Matthew Hale, to which I have alluded, that no conviction in case of murder or manslaughter should ever take place, till the fact were proved--or the dead body had been discovered.

A perfect horror of induction seems to have settled down, like a dense cloud, upon the southwestern corner of Vermont. Judges and jurymen appear to have been stupefied, by its power. The important _consequence_, vital to the whole, they a.s.sumed to be true, without trial or experiment. I have looked, attentively, into every doc.u.ment, that I could lay my hands upon, connected with this subject; and I cannot discover, that any effort whatever was made, by any one, _till after the trial_, to discover the _living_ body of Colvin. The interesting ramble of Jesse and Judge Skinner, upon the mountain, was in search of Colvin's _dead_ body! But, upon the publication of the notice, in the Rutland Herald, Nov. 26, 1819, stating the facts, and calling for information, in regard to Colvin, and a similar notice, of the same date, in the New York Evening Post--in ten days, that is, Dec. 6, the most ample and satisfactory information was published, by Mr. Taber Chadwick, in regard to the _living_ body of Russell Colvin!

The great caution of Sir Matthew Hale was meant, not less for the prisoner, than for the whole community; no one of whom can be sure, through a long life, of escaping from the oppressive influence of circ.u.mstances, accidentally, or purposely, combined against him. His _discreet_ humanity spread no mantle of imitation charity or morbid philanthropy over the guilty. He was a bold pract.i.tioner--too bold, by far, occasionally, as in the case of Cullender and Duny. But this great, good man, well knew, that prisoners, charged with murder, were ent.i.tled to all the benefit of _reasonable_ doubt. He well knew, that no judicial caution could go farther, to save, than the fierce suspicion of an excited community would go, to destroy. He well knew, that, with not a small number, the very enormity of the crime seems to supply the want of legal evidence; and, that, in many cases, to be suspected is to be condemned. We have all heard of the jury, who, having convicted a prisoner of murder, in direct opposition to the Judge's instructions, and being questioned and reproved--replied, that an enormous crime had been committed, and ought to be atoned for; and they saw no good reason, why the prisoner, the only person _suspected_, should not be selected, as the victim!

Sir Matthew Hale's forbearance extended to cases of reprieve, after conviction, before another judge. Thus in H. P. C., vol. ii. ch. lvi., he says--"I have generally observed this rule, that I would never give judgment, or award execution, upon a person, reprieved by any other judge but myself, because I could not know, upon what ground or reason he reprieved him."

Upon this, there is the following pertinent note--"The usefulness of this caution may be seen, from what is observed, by Sir John Hawles, in his remarks on Cornish's trial, where he relates the case of some persons, who had been convicted of the murder of a person absent, barely by inferences from foolish words and actions; but the judge, before whom it was tried, was so unsatisfied in the matter, because the body of the person, supposed to be murdered, was not to be found, that he reprieved the persons condemned; yet, in a circuit afterwards, a certain unwary judge, without inquiring into the reasons of the reprieve, ordered execution, and the persons to be hanged in chains, which was done accordingly; and afterwards, to his reproach, the person, supposed to be murdered, appeared alive."

The death of the person, alleged to have been murdered, is, manifestly, not less a const.i.tuent part of the crime, than the malice prepense, or the employment of the means. These three things are necessary to const.i.tute murder, in the eye of the law. Thus, an acquittal has taken place, where the _murder_ was alleged to have been committed, _on the high seas_; and the _malice_ and the _blow_ only were proved to have occurred _on the high seas_--and the _death_, in the harbor of Cape Francois. Such was the case of the U. S. against McGill, reported in Dallas. This extreme particularity appears, to some persons, exceedingly ridiculous; but not quite as much so, as certain commentaries, upon legal proceedings which we sometimes meet with, in the ordinary journals of the day.

Aaron Burr, whom I desire not to quote, too frequently, once shrewdly remarked--"_he, who despises forms, knows not what he despises_." To infer the death, from the malice, and the employment of the means, in all cases, would be absurd. If one man maliciously knocks another into the sea, here is, certainly, a violent a.s.sault and battery--perhaps an a.s.sault with intent to kill. But, before we join, in the popular _hutesium et clamor_, we have two important points to settle, beyond all _reasonable_ doubt--first, if the person, knocked overboard, be dead, for he may have swum to land, or have been picked up, at sea, alive, in which case, unless he die of the blow, within the time prescribed, there can be neither murder nor manslaughter. And, secondly, if he be proved to have died of the injury within that time, we must duly weigh the previous circ.u.mstances and the provocation, to ascertain, if the act done be manslaughter or murder.

Those, who vociferate, most loudly, against the law, for its hesitancy, and demand the immediate descent of the executioner's axe, upon the neck of the victim, will be the very first fervently to supplicate, for the law's most merciful carefulness of life, should a father, a brother, or a son be charged with crime, and involved in the complicated meshes of presumptive evidence.

No. Lx.x.xVI.

The transition state, when the confidence of youth begins to give place to that wholesome distrust, which is the usual--by no means, the invariable--accompaniment of riper years, is often a state of disquietude and pain. It is no light matter to look upon the visions of our own superiority, and imaginary importance, as they break, like bubbles, one after another, and leave us abundantly convinced, that we are of yesterday, and know nothing.

The confidence of ignorance, however venial in youth, is not altogether so excusable, in full grown men. Its exhibitions, however ridiculous and absurd, are daily manifested, by mankind, in relation to those arts and sciences, which have little or nothing in common with their own respective vocations. The physician, the lawyer, the clergyman, the deeper they descend into their respective, professional wells, where truth is proverbially said to abide, proceed with increasing caution. Yet it is quite amazing, to witness the boldness, with which they dive into the very depths, that lie entirely beyond their professional precincts. The physician, who proceeds, in the cure of bodies, with the extremest caution, seems to be quite at home, in the cure of souls; and has very little doubt or difficulty, upon points, which have perplexed the brains of Hale and Mansfield. The lawyer, who, in his own department, moves warily; weighs evidence with infinite care; and consults authorities, with great deliberation--looks upon physic and theology, as rather speculative matters, and of easy acquirement. The clergyman frequently practises physic gratuitously; and holding the doctrine in perfect contempt, that the _viginti studia annorum_ are necessary to make a tolerable lawyer, he rather opines, that, as _majus implicat minus_, so his knowledge of the Divine law necessarily comprehends a perfect knowledge of mere human jurisprudence.

This confidence of ignorance is nowhere more perfectly, or more briefly, expressed, than in four oft-repeated lines, in Pope's Essay on Criticism: