The morning broke; the hour of trial approached; the village was thronged with the idle and the curious; the court was opened, the grand jury empannelled and charged, and in a short time returned into court a formal bill of indictment against Hyland Gilbert, with some two or three aliases, for the wilful murder of Henry Falconer.
The details of the trial it is not our purpose to narrate. There were the usual preliminary flourishes, thrusts, and counter-thrusts, on the part of the counsel, with those applications for postponement and arguments against it, that weary the patience of the good citizens who come to a tribunal of life and death as to a raree-show, and perhaps with some such feelings as conducted the ancient Romans to the amphitheatre. There was even an attempt made by the prisoner's counsel (of whom the unlucky Affidavy was not one—at least, he did not make his appearance,) to oppose the jurisdiction of the court, precisely as Affidavy had boasted he would do, but with so little zeal and energy, that it was soon seen the prisoner was to derive no benefit from such a plea. In fact, from the beginning to the end, the counsel for the prisoner conducted the case in so spiritless and desponding a manner, as to convey the most melancholy prognostic to those who judge of the goodness or badness of a cause by the colour of a counsellor's complexion. It seemed as if they were themselves too well satisfied of his guilt to think of contending for his innocence; and it was soon seen that they had good cause to despair; for the prisoner, upon being formally arraigned at the bar, rose up, and despite the opposition of his counsel, insisted upon pleading Guilty to the indictment.
From the consequences of this rashness—a result of mingled remorse and despair—the unhappy young man was saved by the humanity of his judges, who directed the plea of Not Guilty to be entered, as, we believe, is usual, or at least frequent, in such cases.
Upon being asked 'How he would be tried?' he answered, with the same readiness, "By God and my country;" and the elder of his counsel making some trivial remark on the latter word, coupled with the hint that his domicil was strictly within a foreign territory, he repeated the word with great vehemence, insisting 'that he was born upon the soil on which he stood, and whether he lived or died, and whether it owned the sway of the royal government, or assumed the state of a free Republic, it was still as much his country as before, since still the land of his birth.'
He was directed to resume his seat; but the readiness with which he seemed to abandon all the little hopes remaining to him softened the hearts of his judges, and brought tears into the eyes of many who came to see, in a Gilbert and refugee, some dread-looking monster, and beheld only an emaciated youth, evidently nurtured on the lap of gentleness. Indeed, there was no little confusion produced on several occasions, by the compassion his appearance excited; one instance of which happened, when Captain Loring, summoned entirely without the knowledge of Hyland, along with two or three others, for no imaginable purpose, but to testify to the mildness of his disposition and the excellence of his previous character, entered the witness's box, and laid eyes on the youth for the first time since his arrest. He no sooner beheld his wretched plight, than forgetting half his own wrongs, he began to blubber and stretch out his arms, and declare, 'after all, adzooks, he didn't believe his young Herman had committed the murder, for all they said of him.' Then being reproved, and something in the rebuke reminding him of his daughter, he burst into a rage, reproaching the young man for his deceit and base outrage, from which he was only diverted by a second rebuke, to begin to blubber and defend as before. In short, it was soon found that his testimony was not to be obtained, and as his wits were pretty generally thought to be infirm, he was directed to be removed. This was, however, at a later stage of the trial, and after the more important witnesses had been examined. These comprehended those individuals who were present at the scene of blood, the chief of whom were captain Caliver, lieutenant Brooks, and the adventurer Sterling. The evidence of the two former might have been esteemed sufficient of itself to convict the prisoner, and there seemed a degree of cruelty in bringing into the court, merely to confirm their testimony, a man enduring so much bodily suffering as this wretched Sterling. It seemed, that he had received some serious injury, when hurled so roughly by Oran Gilbert among the rocks; for it was remarked, soon after the cavalcade was formed that conducted the body of young Falconer to Hawk-Hollow, that he became wan and troubled, and occasionally a little wandering in his behaviour. He had grown worse during the three days he was confined in prison, and had caused no little trouble by his groans at night. In addition to all this, he had bled freely from the cut he received from the jailer, while attempting to escape; that attempt, as he averred on a previous occasion, having been made in his sleep, he being occasionally afflicted with the infirmity of somnambulism. When he appeared in court, all were struck with his haggard appearance; the light of cunning had departed from his eyes and mouth, being superseded in the one by a certain wild, yet torpid and smouldering ray, such as might be looked for in the organs of an expiring maniac, while the other was distorted with pain, of which it was hard to say whether it existed most in mind or body. Upon being called upon to declare what he knew in relation to the prisoner and the deceased, he swore, to the surprise of every one, 'that he knew nothing to prove the prisoner's guilt, but much that spoke in favour of his innocence.'
Even Hyland, who had leaned his head down in passive despair, was startled at a declaration so unexpected; his counsel became a little animated, and the Deputy Attorney General reminded the witness, 'that he was now in a court of justice, speaking to truth upon oath, and not upon the boards of a theatre, delivering the tricksy paradoxes of a play-wright.'
"Very true," said Sterling, with a ghastly smile; "but that day is over."
Upon being asked what he meant by the last expression, he replied, 'that he alluded to his original profession of the stage, on which he once had his day, like others.' He then proceeded to state, that while pursuing his vocation, some years before, in the island of Jamaica, he had several times seen the prisoner, then a young man of eighteen or twenty, the heir of a rich widow, his kinswoman, and occupying a highly favourable situation in society, and being, as far as he knew, of estimable character. He next encountered him in the month of May, at the tavern of Elsie Bell; although he did not immediately recognise him. The third time he saw him was at the Terrapin Hole, among, or near to, the refugees, among whom, as he caused it to appear, he had himself stumbled by accident; the consequence of which was that he was induced to join the band, to protect himself from a peculiar peril in which he was placed. On the evening of that day, he accompanied the leader of the band to the park of Gilbert's Folly, where the prisoner was found struggling in mortal combat with the deceased. A conflict ensuing, of which he could say but little, having spent several hours previously in drinking, he did himself attack the deceased with a pistol, scarce knowing, in his intoxication, what he did, and would have killed him, had he not been restrained by the prisoner, who took the pistol from his hand, and assisted the deceased to make his escape; "and this the prisoner did," added the witness, with a firm voice, "although, at that moment, he was bleeding from a pistol-shot, received but a moment before from the deceased, with whom he had fought a duel, and by whom he had been treated with some unfairness and much barbarity."
He then continued to state, that the design having been communicated to him of carrying off Miss Loring, he himself, esteeming it rather a wild frolic than a serious outrage, had obtained permission to co-operate in an assumed character; and that what confirmed him in the belief that no wrong was meditated to any one, was his overhearing a conversation betwixt the prisoner and Oran Gilbert, in which the former insisted that no one should be injured, particularly naming the deceased and his father, Colonel Falconer. At the time the band broke into the house, he, being again overcome by wine and in a mischievous mood, knocked down the deceased with a fiddle; and had the prisoner been moved by any malicious impulse, he could have easily killed him at that time. As for the murder itself, all that he could say was, that at the moment the pistols were discharged, he was himself nearer to the prisoner than was any other person on the ground; and yet he could neither swear upon his knowledge nor to the best of his belief, that the prisoner had fired the pistol that terminated the deceased's career. There were several pistols fired, he knew not by whom, nor did he believe any man could say by whom, for the morning was still dark, and all were in confusion. It was as likely that the deceased had been killed by his own (the deceased's) pistol, as by the prisoner's; for being notoriously an expert shot, nothing but accident could have caused him to miss the prisoner, at whom he aimed, and who was so nigh at hand; and the accident that diverted the pistol from the prisoner, might have turned it against the neck of the deceased himself. Finally, he was convinced, that, be the matter as it might, there could have been no malice aforethought on the prisoner's part, or he would have taken advantage of those moments to execute his purpose when he could have done so without risk or discovery.
This testimony, which was justly esteemed extraordinary, coming as it did from one who had been admitted as evidence against the prisoner, produced a remarkable effect throughout the whole court and jury, as well as the spectators; and was indeed more like a harangue designed for the prisoner's benefit than any thing else. It was delivered with pain, but still firmly, and at the close, the witness appearing to be exhausted, he was allowed to retire, while the Deputy, saying, 'he was gratified to hear such mitigating circumstances advanced in the prisoner's favour,' added that he would summon two witnesses to prove the murder from the prisoner's own voluntary confession, and would then produce two pistols, the only ones discharged, one of which he would prove had been fired by the deceased, the other by the prisoner.