The defence opened. Mr. Curtiss arose. "Hay it please your Honor, and you, Gentlemen of the Jury, I arise under no small embarrassment to plead the cause of my clients in this important trial,—an embarrassment which arises from the overwhelming tide of public indignation, which in its mighty current, and irresistible force threatens to carry away every barrier of public justice, and public safety.
"Upon the alleged confession of Hugh Fuller this tide deluged the surrounding country, as when the dam of a great river is carried away, and the pent up waters are let loose, bearing down all before them.
"We, Witnesses, Counsellors, and Jurors are in no small danger of being carried away as float-wood whither the mighty torrent shall bear us.
"I cannot resist the conviction that the District Attorney, by his quick sympathies, has so far participated in this popular feeling, that he has not in this case sustained his deservedly high reputation for equity, and impartiality. My great esteem for him as an advocate led me to expect that he would devote to this exciting trial, his characteristic calmness, and discrimination, that he would carefully weigh the evidence, and avoid all appeals to passion or prejudice. Judge then of my surprise that in the very beginning of his speech, he should appeal to your sympathy in behalf of the daughter of the late Joseph Lee.
"Gentlemen of the Jury, you are here for the exercise, not of sympathy, but of justice. And my astonishment was increased by his attempt to awaken your prejudices against my clients, by reference to any peculiarities in their personal appearance. What honest citizen; nay, what one of you could be suddenly dragged from your bed at night, and committed to prison on such a charge; be brought from your cell handcuffed and strongly guarded, and here locked up in the felon's box in the presence of so large and respectable an assembly of your fellow citizens without some emotion blanching your countenance, or flushing it with indignation.
"But my astonishment reached its highest pitch, when having waited hour after hour in painful expectation of that circumstantial testimony, which was to amount to "a moral demonstration" of my clients' guilt, and waiving in apprehension of it my right to cross examine his witnesses, I heard him acknowledge to the court that the evidence for the prosecution was in, and the case was submitted to the defence.
"His citations from legal authors, and his exposition of the laws pertaining to the crime for which my clients are arraigned meet my most cordial approbation, and supersede the necessity of any additional comments on the part of the defence. Of the three crimes charged in these indictments, the two latter are subordinate to, and dependent on the first. If there was no conspiracy, there surely could have been no wilful perjury, no suborning of witnesses in pursuance of that conspiracy.
"Setting aside the confession, what proof has been adduced to support the charge of conspiracy? None that would justify any honest citizen in cherishing a suspicion of his neighbor; none that would not blast the fairest character as with the breath of calumny. Your verdict, if you find my clients guilty, must depend almost entirely upon the credibility of a deceased witness, upon the affidavit of Hugh Fuller.
"The authorities already submitted to you by my legal friend, teach you that the testimony of a dying man should be received, if at all, with great caution. At best it is only hearsay evidence, and this is almost the only form of that species of testimony which is admissible at the bar. Before you attach to it any importance, you are bound to know that the witness at the date of the affidavit was in a sound mind, free from intellectual aberrations, and from bias of judgment.
"Has the prosecution relieved your minds from all doubt on these points? Nay, gentlemen. It has submitted no substantial proof of even the sanity of that witness. I am now prepared to prove by testimony clear and abundant that this affidavit contains nothing more than the hallucination of an insane man. This being established, I shall submit the case, after the argument of my associate, for your decision."