No. LXXXV.
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 circumstances 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. God 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 God, 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 circumstantial. 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 circumstances 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 passage—“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 assumed to be true, without trial or experiment. I have looked, attentively, into every document, 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 circumstances, 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 practitioner—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 entitled 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 constituent part of the crime, than the malice prepense, or the employment of the means. These three things are necessary to constitute 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 François. 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 assault and battery—perhaps an assault 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 circumstances 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.