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!