CHAPTER VI.
Second Trial Ordered—Smith Continues to Break Chains and Relieved Himself of Fetters Rivetted on by a Blacksmith—Reads Bible and Makes Straw Figures—Feigns Insanity when Placed on Trial—Refused to Plead—Found Guilty and Sentenced to Death.
The term of the Court of Common Pleas was now coming on, which required much of my attention for the necessary preparations; and Mr. Dibble, the jailer, being about to remove to Sussex Vale, to take charge of the Academy there, my situation began to look rather awkward and unpleasant. Accordingly the jailer moved away on the 11th of March, after the sitting of the Court, and from the extraordinary trouble which the prisoner was known to have given, I had little hope of finding any one who would be willing to take the charge. However I prevailed with Mr. James Reid (a man in whom I could confide) to undertake the charge of him; who, with his family moved into the house the day following.
After this, Smith appeared more cheerful, and became rather more quiet, until the 24th of March, when I was called on by the jailer, who informed me that Smith was attempting to break through the partition where the stove-pipe passed through into the debtors’ room. On entering the jail we found him loose from all his irons,—his neck-chain was broken into three pieces; the chain from his neck to his feet into three pieces; the screw handcuffs into four pieces, and all hanging on nails on the partition. His great coat was torn into two parts, through the back, and then rent into small strips, one of which he used as a belt, and supported with it a wooden sword which he had formed out of a lath, and with which he amused himself by going through the “sword exercise,” which he appeared to understand very well. The chains from his legs were disengaged from the staples, and tied together with a strip of the torn coat. His hand, his feet and his clothes, were all bloody; and his whole appearance presented that of an infuriated madman. There were present on this occasion Messrs. Daniel Micheau, Moses Foster, George Raymond, Walker Tisdale, the jailer and some others. I then raised the staple, secured him by the leg chain put on a pair of stiff handcuffs, and added a chain to his neck, stapled to the floor. In this situation we left him until the 28th, when I was again called by the jailer, who said he believed he was loose again, and about some mischief.
On entering the jail, I accordingly found him loose,—the chain from his neck in three parts; he had beaten the lime off the wall with a piece of his chain three feet long. We left him for the purpose of getting his chains repaired; at night we added a new chain from his fetters to his neck, and stapled him to the floor with a chain about four feet long; we secured his handcuffs to the chain between his neck and feet, so that when standing, he could not reach in any direction. In this situation he remained until the 31st, spending the time in singing and hallooing occasionally. I was then again called by the jailer, who, on opening the wicket door, found a piece of chain hanging on the inside. I went immediately to the jail and found that he had separated all his chains, had tied his feet chain to to the staple again, and was lying in his bed as unconcerned as if nothing had happened, having a piece of chain about his neck. We then took his bunk bedstead from him, and removed everything out of his reach; no link in his chains appeared to be twisted, nor were there any broken links to be seen; from this we inferred that he still must have some means of cutting his chains.
At this moment, however, it occurred to us that he might have the broken links concealed in the privy. We accordingly let down a candle, by which we could see the bottom, and with an iron hook prepared for this purpose, we brought up a bunch of broken links which he had tied up in a piece of his shirt, together with a piece of his neck-chain a foot long. This convinced us that he had not destroyed his chains by means of cutting them, but by the application of some unknown mysterious power. I then determined to break the enchantment, if strength of chain would do it, and added to his fetters a large timber chain, which had been used as the bunk-chain of a bob-sled, by which four or five logs were usually hauled to a mill at once. The chains we had previously used were of a size between that of a common ox-chain and a large horse trace-chain.
Secured in this manner we left him, and on the 6th of April found his neck-chain parted again. I then replaced it with a strong ox-chain about seven feet long, firmly stapled to the timber. The next morning the gaoler informed me that from the uncommon noise he made in the night, he was convinced he must be loose from some of his irons or chains. I then concluded that he must have broken his steel fetters, as I judged it impossible for human strength or invention, in his situation, to break either of the ox-chains; but to my utter astonishment I found the ox-chain parted and tied with a string to the staple, his handcuffs, fetters, and log chain having remained uninjured. We fastened the ox-chain to his neck again, by driving the staple into another link. After this, he remained more quiet, his wrists having been much galled and swelled by his irons, and bruised and rendered sore by his exertions to free himself from them.
At this time I received a letter from the Clerk of the Circuit, of which the following is a copy:
St. John, March 15th.—Dear Sir,—At length I enclose you the precept for summoning a Court of Oyer and Terminer and Gaol Delivery in your County, on Thursday, the 20th of April, for the trial of the horse-stealer—I also enclose a letter from Major King, for his saddle, stolen from him at the same time.
Yours, &c.,
Ward Chipman.
To Walter Bates, Esq., High Sheriff.
After this our prisoner remained for some time rather more peaceable, and amused himself with braiding straw, which he did in a curious manner, and made a kind of straw basket which he hung on the partition to contain his bread. Sometimes he would make the likeness of a man, and sometimes that of a woman, and place them in postures singularly striking; discovering much curious ingenuity. At this he would amuse himself in the day, but spent the night in shouting and hallooing, and beating the floor with his chains.
On entering the gaol, we discovered the image or likeness of a woman, intended to represent his wife. He had it placed in a sitting posture, at the head of his bed, with the New Testament open before her, as though reading to him, while he sat in the attitude of hearing with serious attention. I was induced to look into the New Testament, and found it open at the 12th chapter of St. Luke, and the leaf turned down at the 58th verse, which read as follows: “When thou goest with thine adversary to the Magistrate, as thou art in the way, give diligence that thou mayest be delivered from him; lest he hale thee to the judge, and the judge deliver thee to the officer, and the officer cast thee into prison.” It would seem as though he had intended to represent her as reproaching him for his escape from the constables on his way to Kingston, while he would defend his conduct by referring to the above portion of the Scripture. He produced many other likenesses, which he would place in different significant postures manifesting the most remarkable ingenuity and invention.
A special Court for his trial had been summoned to meet at Kingston on the 20th of April; but it was postponed until the 4th of May, on account of the ice having remained unusually late in the river, as will appear by the following letter:
St. John, 5th April, 1815—Dear Sir,—I have received your letter detailing the very extraordinary conduct of the culprit in your custody. There is certainly a mystery in this man’s means and character, which is unfathomable, and I fear there will be considerable difficulty with him on the trial. Your vigilance and exertions of course cannot be relaxed. As the best thing to be done, I dispatched your letter, without delay, to the Attorney General, that they might adopt, at Head Quarters, any such measures as they might think expedient for the further safeguard and security of the prisoner.
Very respectfully yours,
To W. Bates, Esq. W. Chipman.
Sunday, 16th April, 1815—Dear Sir—I have just received by express from Fredericton, a letter from the Attorney General, stating that from the state of the river, it will be impracticable for him to be at Kingston by the 20th, and as he has hitherto taken the whole burthen of the trial upon himself, it cannot go on without him. From the circumstances, therefore, and as the present state of the travelling would probably render it dangerous to my father’s health (who is not now very well) to hold the court this week, he has determined to put it off till Thursday, the 4th of May, for which day he wishes you to summon your jury, and to proclaim the holding of the Court. He regrets much giving you this additional trouble, but it must be attributed to the extraordinary backwardness of the season, which was not, probably, foreseen when it was recommended to hold the Court on the 20th of April. I have not time to forward a new precept by this conveyance, but I will forward one in time, or the one you have may be altered. This can be easily arranged when we go up to the Court.
Yours truly,
W. Bates, Esquire. W. Chipman.
The Court was accordingly proclaimed, and at the same time I wrote a letter, inclosing the proclamation to Mr. Dibble, the former gaoler, to which I received the following answer:
Dear Sir—I yesterday received your letter, inclosing your proclamation of the Circuit Court, for the trial of Smith, the horse-stealer. I shall be very sorry if Judge Chipman’s health should be such as to prevent his attending the trial. Should the Attorney General attempt to prosecute on recognizance for the escape, I think his (the Judge’s) influence at Court would prevent it. I am quite of your opinion, that it will be the most difficult case that has yet been before any Court for trial in this County. As for his behaving much better after I left the gaol, it was what I expected he would do, to put Reid off his guard. Those parts of his chains that were hanging in convenient situations, were powerful weapons, and had Reid come into the gaol alone, or weak-handed, he would have felt the weight of them. It is remarkable that the villain with all his art and cunning, should manage it so ill; and it seems altogether providential that from the beginning (except his sickness) he has either delayed too long or been too hasty, which has prevented his escape before, and I hope and trust will be the same with you. I am sorry for the trouble you have with him, and confidently hope and trust he will not evade your vigilance. You are too well acquainted with his conduct to need my advice. I must claim from you the particulars of his conduct at the trial.
I remain yours truly,
W. Bates, Esquire. W. Dibble.
On the 30th of April, I went to the gaol and found Smith lying quietly with all his irons and chains uninjured, and told him that on Thursday next, the 4th of May, he must have his trial before the Court for his life or death; and that Mr. Pearson, the Deputy Sheriff who apprehended him at Pictou, had come to witness against him; but he paid no attention to what I said. The second day Mr. Pearson came to see him, and told him that his (Smith’s) wife had come to see him; but he took no notice of him, no more than if he could neither see nor hear, and set at defiance all attempts to extort one single expression, as though he were destitute of every sense.
The third day we found that he had been at the stone wall, his face bruised and bloody. I renewed my attempts to elicit something from him by telling him that the next day he would be brought before the Court for his trial; but all was in vain. He gave me the most decided indications of confirmed insanity; patted his hands, hallooed, sang without articulating, and continued to sing and beat the floor with his chains the most of the night.
The 4th of May, the day appointed for his trial, being now come, the Court began to assemble early in the morning, and numerous spectators crowded from every part of the county. About 11 o’clock his Honor Judge Saunders, and the Attorney General arrived from Fredericton. About 1 o’clock the whole Court moved in procession to the Court House, which was unusually crowded with spectators. After the opening of the Court in the usual form, the prisoner was called to the bar. The gaoler and four constables brought him and placed him in the criminal’s box. He made no resistance, nor took any notice of the Court, and, as usual, acted the fool or the madman, snapping his fingers and patting his hands; he hem’d and ha’d, took off his shoes and socks, tore his shirt. Every eye was fixed on him with wonder and astonishment. After the Attorney General had read his indictment, the Judge asked him how he pleaded to that indictment, guilty or not guilty. He stood heedless and silent, without regarding what was said to him. The Judge then remonstrated with him, and warned him that if he stood mute out of obstinacy, his trial would go on, and he would be deprived of the opportunity of putting himself on his country for defence; and that sentence would be given against him; he therefore advised him to plead not guilty. He still continued mute, and acting the fool without betraying the slightest emotion. The Judge then directed the Sheriff to empannel a jury of twelve men, to enquire whether the prisoner at the bar stood mute wilfully and obstinately, or by the visitation of God. From the evidence brought before the jury on this enquiry, it appeared that he had been in the same state for three months preceding, during which time he could not be surprised into the utterance of one word. The jury consequently returned their verdict that the prisoner stood mute by the visitation of God.
The Judge then directed the Attorney General to enter the plea of not guilty; and Counsel for the prisoner was admitted. The Court then adjourned till ten o’clock the next morning. The next morning, Friday, the Court assembled accordingly, and the prisoner was again brought to the bar, and placed in the criminal’s box as before. He sat down quietly, maintained his usual silence and inattention. The most profound silence reigned in the Court, which was still crowded with spectators, and every eye was fixed on the prisoner with the most eager attention. The Judge then arose, and observed that the prisoner appeared more calm this morning, and directed the Attorney General to proceed with the trial.
After the jury had been empannelled and had taken their seats, and the witnesses brought before the Court, the prisoner was ordered to stand up for his defence; hold up his hand, and hear the evidence; but he still maintained the same disregard and indifference, giving no attention to anything that was said to him. The constables were then directed to hold up his hand, but to this he offered the most determined resistance, and fought and struggled so furiously, that they were unable to manage him. They then procured a cord and pinioned his arms; but this was of no avail; he would flounce and clear himself from them all, as though he had the strength of some furious animal.
They then procured a rope and lashed his arms back to the railings of the box; but he still continued his struggling, and reaching the railings before him would break them like a pipe-stem. They then procured another rope and bound his hands together, and secured them to the railing in the opposite direction. Finding himself overpowered in his hands, he immediately availed himself of his feet, with which he kicked most lustily, and soon demolished all the railing in front of the box, notwithstanding all the efforts of the constables to prevent him. Another rope was then procured, and his feet bound each way from the posts of the box, so that he was rendered incapable of further mischief. After securing him in this manner, all the constables being in readiness for his movements, while he himself sat as unconcerned as though nothing had happened, the Attorney General proceeded to read his indictment, in which the prisoner stood charged with having feloniously stolen a certain bay horse, the property of Frederick Willis Knox, Esquire, of the value of thirty-five pounds. Mr. Knox having been sworn, stated the manner of his pursuit after the prisoner, with all the circumstances, until he came to Truro, as has already been detailed. At Truro he engaged Mr. Pearson, Deputy Sheriff, to pursue on to Pictou, whither he was informed the prisoner had gone to sell the horse.
Mr. Peters, counsel for the prisoner, on the cross-examination of Mr. Knox, asked him how he wrote his Christian name—“Willis” or “Wills.” He answered, “I am christened and named after my god-father, Lord North, the Earl of Willsborough, and I never write my name Willis.” Mr. Peters then produced authorities to show where one letter omitted or inserted in a man’s name had quashed an indictment, and moved that the prisoner be discharged from this indictment. This move was overruled by the judge, but was reserved for a question in the Court above.
The witness Pearson having been sworn, deposed and said, that he pursued after the prisoner the whole night, and early the next morning was shown the prisoner, and arrested him on suspicion of having stolen the horse, and told him that the owner of the horse would soon be present. He seemed but little surprised, and only replied that he came honestly by the horse. The witness further stated that he then asked the prisoner where the horse was, who unhesitatingly pointed to the house where he soon after found him. Witness went on to state that he took the prisoner before a Justice for examination, and thence to the jail at Pictou. That he then went to the house which the prisoner had pointed out to him, and there found the horse; that he returned homewards with the horse about ten miles, and met Mr. Knox, who immediately knew the horse, and called his name “Britain.” That they then returned to Pictou, where the prisoner remained in jail, and on examination was found to have in his possession a watch, and about fifteen guineas in money, with a number of watch seals and other articles, some of which it appeared he had stolen on his way as he escaped with the horse. That he was committed to the charge of a constable and Mr. Knox, to be conveyed by a warrant from Nova Scotia to the jail at King’s County, in New Brunswick. That before he was taken from the jail at Pictou he had cut the bolt of his handcuffs nearly through, and had artfully concealed it, which was fortunately discovered, and new handcuffs provided, otherwise he must certainly have escaped from his keepers before he arrived at Kingston.
The circumstances against the prisoner were, that he gave contradictory statements as to the way in which he came by the horse; at one time asserting that he bought him from a pedlar; at another from a Frenchman; again, that he swapped for him; and at Amherst produced a receipt for money paid in exchange.
The Counsel for the prisoner, in cross-examining, asked Mr. Knox, did you ever see the prisoner in possession of the horse! “No; but he acknowledged it.” “Did you ever hear him acknowledge that he was in possession of the horse in any other way than by saying he came honestly by him?” “No.” Mr. Pearson was cross-examined in the same manner, and answered to the same effect.
Mr. Peters, in defence of the prisoner produced authorities to show that by the evidence the prisoner was not taken in the manner as stated in the declaration, and that it was sufficient for him to prove, in a general way, how he came in possession of the horse, which he was able to do by a receipt he produced for the money paid in exchange, the best general evidence that can be given, as such is the common way in dealing in horses. He acknowledged that if the prisoner had been taken on the back of the horse, he would then have been taken in the manner as stated by the Attorney General, and consequently bound to prove how he came in possession; but in the present case, he himself, or any one present, might have been in this unfortunate prisoner’s situation; dragged to the prison, to court and to the gallows, because he could not produce the person who actually sold him the horse. The prosecutor had not produced any evidence of the horse ever having been in the possession of the prisoner, any other way than by his own confession; and he trusted that the jury would not hesitate to find that the prisoner was not taken in the manner as stated in the declaration, but would pronounce him, by their verdict, “Not Guilty.”
The Judge, in his charge to the jury, overruled the plea, by stating to the jury that his having been taken in the manner, was proved by the various accounts he gave of his getting possession of the horse, thus rendering himself liable to prove how he came by him, or to stand guilty of having feloniously taken him, as stated in the indictment. That they had heard the witnesses and if, from the evidence and circumstances before them, they would find him guilty; but if they had any doubts, that leaning to mercy, they would find him not guilty.
While the jury was out, the sheriff invited the Court and other gentlemen to visit gaol, where they were shown the irons and chains, and the situation in which the prisoner had been placed.
The jury, after an absence of about two hours, returned with a verdict of “Guilty.” The judge then proceeded to pass upon him the awful sentence of the law, “Death, without the benefit of Clergy;” but the criminal remained unmoved and unaffected, and continued shouting and hallooing. The court asked the counsel for the prisoner whether he had anything to offer in arrest of judgment, or why the sentence of death should not be executed upon him. Mr. Peters then arose and produced authorities to show that the present law that took away “the benefit of Clergy” for horse-stealing, was not in force in this colony, and that it could not be construed to be in force, and must be a question to be decided in the higher court, where he hoped to have the honor of discussing it. The judge admitted the plea; but gave his opinion against him.