WILLIAM L.
CLEMENTS
LIBRARY
University of Michigan
WALDRON


Second Edition—ºnlarged. 50 Cents.
| ULUMERIUS
|| || in num
THOMAS J. CLUWERIUS,
Ricº Mono, VA.
PUBLISHED BY S. J. DUDLEY, toº. MAN STREET
-





CLUWERIUS,
M. Y.
Life, Trial and Conviction.
By THOMAS J. CLUVERIUS,
WITH AN ACCOUNT OF THE AEXAECUTION.
Entered according to Act of Congress, in the year 1887, by S. J. Dupley, in
the Office of the Librarian of Congress, at Washington.
RICHMOND.
ANDREws, BAPTIST *...* PRINTERs, -

PREFACE.
I hesitate to present this sketch of my sorrowful career to the
world. In my helpless grief I would far sooner remain silent.
Two considerations, however, control me in submitting this
statement to the public. Naturally enough, I crave the poor
privilege of telling my own story in my own way. At the time
of my trial, a rigorous law, now happily changed, sealed my
lips.
It is painful now for me to break silence, but I, nevertheless,
choose to give my own account as I stand on the verge of eter-
nity, and when I can have no motive to speak falsely. The
other controlling consideration is this: I will leave behind me
kindred and friends dearer to me than life could possibly be.
I know that other accounts of my career will be written, and
it is not to be expected that they will do my loved ones justice.
In my last troubles my own immediate family, and my aunt,
Mrs. Jane Tunstall, made great sacrifices for me. It saddens
me to think that I have been, although innocently, the cause of
their misfortunes, and that I die without the ability to repay
their kindness. -
It has occurred to me that by the preparation of this sketch,
which I have undertaken without consulting them, I might, in
some measure, make a return for all their love and care for me.
If my attempt amounts to nothing else, it may, at least, show
them that, even at this critical hour, I am not forgetful of their
sacrifices for me. I know that my end is near, and that nothing I
can do or say now can change my fate; and this is written,
therefore, not for any benefit that it can bestow upon me.

CLUVERIUS.
CHAPTER I.
INTRODUCTORY.
Of course in sketching the history of so prolonged
and complicated a trial, many things have to be
omitted, which, to one at all familiar with the facts,
are unimportant; but for the benefit of those who
do not recall, or, perhaps, never knew the history of
the case, I present in this introductory shapter such
matters as will be necessary to an intelligent under-
standing of what follows.
On the morning of the 14th of March, 1885, Mr.
L. W. Rose, keeper of the Old or Marshall reservoir,
in the city of Richmond, Virginia, was walking along
the embankment, and when he had gotten half-way
along the southern side he noticed the walk-way
“furrowed up,” and saw a red glove and a piece of
shoe-string. Looking over in the water he sº float-
ing near the top a flounce, or some portion of a
woman’s dress. He called one of the workmen and
ascertained that it was a human body. He then sent

4
for the coroner, who took charge of the body. This
was on Saturday, the 14th of March. The body was
identified on Sunday or Monday as that of F. L.
Madison.
THE SCENE OF THE SUPPOSED MURDER.
Marshall reservoir is near the western limit of the
city, and at the terminus of Reservoir street, which
runs at right angles with Main street. The reservoir
grounds occupy in all about six acres. On the east
is the Clarke Spring property, at one time used as a
small-pox hospital; on the south, near the eastern
corner, is the Small-pox burying ground. On the
south side of the grounds there was on March 13th
a hole in the fence, made by one or two planks have
ing come off, and one or two others hanging loosely
at the top. At the north-western corner of the reser-
voir is situated the house of the keeper, and on the
northern embankment there is a little pavilion with
open sides and seats for visitors. The reservoir is
surrounded by an embankment bricked on the inside
and turfed on the outside.
BELLE ISLE.
Belle Isle is in the James River, and is connected

5
with Richmond city proper by bridges. It is occu-
pied mainly by iron works. Roughly speaking, it is
about two miles from the post-office.
FINDING ARTICLES OF CLOTHING, Etc., BELONG-
- ING TO DECEASED.
The red shawl was found on the fence in front of
what was then the residence of R. R. Dunstan, No.
103 Reservoir street. Mr. Dunstan’s family were on
intimate terms with the deceased. Her hat was
found, a day or two after the discovery of the body,
in the Small-pox dead house in the hospital grounds
east of the reservoir grounds. A red glove and a
piece of shoe-string were found on the embankment
opposite the body. A bundle of clothing, a brown
cylindrical bag with buttons to it and a shawl strap
around it, containing articles of clothing belonging
to the deceased, was found in James River by the
coal wharves of the C. & O. R. R., about two miles
below Mayo's bridge. - -
- TRUNK AND BAG.
The trunk and bag belonging to the deceased were
sent from Bath county, Virginia, where she had been
teaching school, to Police Justice D. C. Richardson,

6
-
in Richmond, who, upon discovering the identity of
the deceased, telegraphed for them. They “con-
tained letters, papers, empty envelopes, clothes, and
numerous other things a lady may be supposed to
have.” The so-called “lewd poem,” was also found
“under the newspaper at the bottom of the trunk.”
WATCH-KEYS.
There were two watch-keys introduced in the
case—one found at the reservoir and one introduced
by the defence. They were not much alike, though
they were not totally unlike. The one introduced
by the defence was a gold key with hexagonal head
and brown-stone set in it. In reading the chapter on
the watch-key, it will be well to bear these facts in
mind. - -
THE “ TORN NOTE.”
This note, supposed to be addressed to “T. J. Clu-
verius,” was found in the waste-basket at the Ameri-
can Hotel. It was not signed or delivered. Its his-
tory is as follows: About 11 o'clock, of March 13th,
a boy brought a note for the occupant of “Room
21.” This note was taken to the occupant of that
room, and she wrote and sent back a note, which
was given to the boy who had brought the note.
The boy went out and returned in about five minutes,
bringing what is assumed to be the same note to the
clerk, who placed it on the desk in the office, where
it remained until Saturday night, when it was torn
up and thrown into the waste-basket. On Monday
the fragments were collected. It was in these words:
*I will be there as soon as possible, so do wait for
º
line
THE “CURTIS LETTER,”
This was a letter purporting to be from an ac-
quaintance of the deceased, residing in Richmond, to
the deceased, proposing to take her to Old Point
without expense, and was exhibited by the deceased
to the lady for whom she was teaching school in
Bath, as a reason for coming to Richmond. It was
proven that the letter did not come from the ac-
quaintance in Richmond, and that was all that was
ever proven about it. No attempt was made to
fasten the authorship of it on me.
THE CORONER'S INQUEST.
- This occurred on Sunday, the 22nd of March, at
the Richmond Almshouse, Dr. Taylor, assisted by







8
Dr. Pettus, Resident Physician at the almshouse,
made an autopsy. -
THE VISIT OF THE JURY, COUNSEL, ACCUSED,
ETC., TO THE GROUNDS.
This, which occurred on the 15th of May, is not
mentioned in the following pages. The visit was
made at the suggestion of counsel for the defence.
The start was made about 12 M. The whole party
went in carriages to a point near the Dunstan house,
where they alighted. The clerk of the court called
the roll of the jury, and Judge Atkins pointed out
the house to the jury.
From that point they were driven to the reservoir,
and there they viewed the several locatities men-
tioned in the testimony. -
The following extract from the Dispatch of May
16th gives a description of part of the visit as it ap-
peared to the reporter:
“After a few minutes spent at the Dunstan house
the party drove to the reservoir, and went up the
broad flight of steps to the pavilion on the embank-
ment. The party passed around on the western side
and soon reached the southern "º this side Lil-
lian Madison's body was found] Half of the picket

9
fence was down, and the place where the tracks were
seen were hidden from sight by rubbish. Here the
jury paused a good while, and Judge Atkins made a
few brief explanations. The prisoner retained his
perfect calmness. At one time he was standing on
the very spot where the foot-prints on the crushed
granite walkway were seen. Everybody was eyeing
him, and he knew it; but he was absolutely without
emotion. He looked into the reservoir as calmly as
any one present. There was no sign of recognition
of any object, no moisture of the eye, no pallor of
the cheek, no quivering of the muscles of the lips,
no change of color. He stood there in the bright
sunshine, his hands crossed behind him, his knees
firm, his expression unchanged.” -
As to the calmness, etc., the reporter evidently
expected some sign of overwhelming remorse for a
deed I had never done. But of that more will be
said elsewhere.
WAS IT SUICIDE 2
I am not bound to furnish and theory of F. L.
Madison's death. My relation to her was not one
which in any sense made me responsible for her.
But of course I have thought much on the testimony
in the case, and although any theory of her death is
10
beset with difficulties, yet the theory of suicide has
always seemed to me most reasonable. Here are
some of the things that make such a theory proba-
ble: - -
The notion of suicide had at one time been en-
tertained, as is proven by a letter to Mrs. Tunstall
written some time before her death, in which she
wished that suicide were not a sin, and said in effect
that if it had not been she would have sought relief
from some slight girlish trouble in it.
Then the “Curtis” letter is explicable on that
theory. The shawl on the Dustan fence looks as if
it was her farewell to the only family she knºw in
that section. She said to the conductor on the train
that brought her to Richmond that she wished the
train would run off and kill her. Her physical and
mental condition are both favorable to this theory.
Finally, Dr. Taylor, who made the autopsy, said
that the medical facts were not inconsistent with the
theory.
These are only a few of many facts that point in
that direction.






CHAPTER II.
SOME ACCOUNT OF MY HOMES AND OF MY FAMILY.
I was born near Beulahville, in the county of King
William, Virginia, on the 10th of August, 1861.
The farm on which l was born was known in the
community as Walnut Hill, and had been in the pos-
session of my family for a long time, being owned at
that time by my maternal grandfather.
The days of my early childhood, untroubled and
care-free, were spent on that old plantation. As I recall
the house there was nothing specially striking about
it. It was a plain country residence, built of wood,
and two stories high. But during the eight or nine
years spent there nothing occurred which cannot now
be recalled with pleasure. Memory throws always
a soft radiance over the scenes of the past. For us
all the halcyon days are those that come again no
In Ore. -
Doubtless my childhood had its little cares and
vexations, for childhood has its troubles, but they
have faded from my recollection, and naught remains

12
save the memory of parental care and boyish sport.
When I was about eight or nine years old my father
moved to the adjoining plantation, known to us as
Rosemount. Here we remained about six years. No
incident worthy of special mention occurred during
our residence at Rosemount. Our life was simply
that of the ordinary country farm house. Although
far from being in affluence, we had all the necessaries
and comforts and many of the luxuries of life. The
community, remote from any large city or town and
untraversed by railroads, was quiet, and its inhabi-
tants were very little disturbed by the turbulence and
confusion of the great world beyond. In such a
community I spent over half of my life. My brother
and I grew up together, sharing each others joys and
troubles, and knit together in bonds of filial love
that have endured through all the storm and tempest
that have latterly beat upon me. From Rosemount
I went to Little Plymouth, King & Queen county, to
live with my uncle, Samuel Tunstall. He died on
the 4th of August, 1876, only a few months after my
residence at his home began. Since that time I have
lived with his widow, my dearly cherished aunt, Mrs.
Jane Tunstall.
My uncle had been a successful merchant, both at

13
King & Queen Courthouse and at Little Plymouth,
and was associated in business for part of the time
with Rev. Thomas B. Evans, of Middlesex county.
At his death my aunt was left with a competence,
the result of the diligence and economy of both.
My aunt's residence, which had been my home from
the spring of 1876 until these latter troubles began,
is prettily situated in the angle formed by two roads
which unite just at the village of Little Plymouth.
It is a large two-story and double framed house with
brick basement, and is surrounded by shade trees
consisting of locusts, mulberries, etc. There is a well
in the yard, and the out buildings are such as are
usually found about the residence of a thrifty Vir-
ginia merchant or farmer. The village or hamlet of
Little Plymouth has not more than one hundred in-
habitants, I judge. There are two general merchan-
dise stores, one millinery store, a blacksmith shop
and the post-office. It lacks one feature which so
often mars the rustic beauty of the Virginia village—
it has no whiskey store
My father, Beverly W. Cluverius, was born in
Gloucester, my mother, whose maiden name was
Walker, is a native of King William. Most of my
maternal relatives, however, reside in upper King

14
and Queen county, near Walkerton. My father's
occupation has been that of farming. There have
been only three children in our family, all boys.
One died at the age of two or three. My brother
and myself are the other two. My brother has com-
bined the occupation of farming and dealing in
wood. I early chose the law as my profession, and
was a praetitioner from the time I was twenty-one
years up to the time of my arrest.
While I was a resident of King William county I
attended the Beulah Baptist Church, then, and until
his death, which occurred a few years ago, under the
pastoral care of Rev. Jno. O. Turpin, of whom it
may not be amiss for me to say, that no man was
ever more thoroughly trusted and sincerely mourned.
Many of the incidents connected with the old
country church, the venerable pastor, the congrega-
tion accustomed to assemble there, are fresh in my
memory now. No shadow then fell across my path-
way. -
These associations, so vividly called, and so dear to
me now, were of course severed by my removal to
the adjoining county. Then I began to attend the
Olivet Baptist Church, then, as now, under the pas-
torate of Rev. Jno. W. Ryland. This church was

15
situated about one and one-half miles from the vil-
lage of Little Plymouth. While I was an attendant
of this church, in 1877, I made a profession of re-
ligion, and was baptized in the pond adjacent to the
church, the usual place for baptisms, and having a
quiet beauty of its own. I taught in the Sunday-
school connected with this church, and was also As-
sistantant Superintendent.
My home was always religious. My father, mother
and aunt are all members of the church. My bro-
ther was baptized at the same time with myself.
Thus I have briefly sketched my early life and
spoken of my immediate kindred. I know that the
public will not be keenly interested in this part of
my story. I cannot close this chapter descriptive of
my kindred without saying what doubtless I will be
tempted to repeat many times before I conclude my
story. In untroubled times their faithfulness was
constant and thoughtful, and in these latter days,
when cruel circumstance has slain my hope, their
self-sacrificing love has never faltered, never weak-
ened. And in my hopeless, wretched condition, with
the prospect of death before me, I can and do never-
theless bless God for the comfort of their love!

CHAPTER III.
MY SCHOOLS AND TEACHERS.
The story of my life would be very incomplete
without some account of my opportunities for gain-
ing an education. My first teacher was my mother's
sister, Miss Martha Walker. She was much older
than my mother, and indeed had charge to a conside
erable degree of her training, my maternal grand-
mother dying when my mother was yet quite young.
Aunt Martha really had charge of my brother and
myself. She was a very faithful teacher, and although
we were quite young we had our regular hours for
study and recitation. She taught us at home, and
as well as I remember no other scholars, except per-
haps from one other family, attended her little home
school. Her instructions extended over several
years, and touched of course only the rudiments—
the most tedious and wearisome part of teaching. -
It is but just to her memory to say that she did her
best to discharge this homely duty. The next in-
struction I received was at a private school, situated

17
about three-fourths of a mile from home, and taught
by a Mr. Jones. He was not a native of that region,
but had married a lady of the community, and was
living there. The school was not largely attended,
having only about ten or twelve scholars. It was
without any of the educational facilities which are
now supplied. The teacher, however, was very
sprightly and well prepared for his work. He sub-
sequently went West, and located at some point there
of which I am ignorant. Two sessions were spent
under him, and then I attended a school taught by a
lady, about a mile from my home. This school was
largely like the one just mentioned. The teacher
was well equipped for her work, which she did with a
thoroughness worthy of all praise. My attendance
here lasted one session, and my impression is that
the teacher's marriage was the cause of the discon-
tinuance of the school.
I then attended a school at Mr. Jno. W. Taylor’s,
taught by a member of his family. Mr. Taylor was
then and is still the sheriff of King William county.
His home was about one and one-half miles from
ours. This school lasted about a session and a half
and was also closed on account of the marriage of
the teacher. I next attended a public school, taught

18
by Mr. E. C. Hill. Then came my removal to m
uncle's, in King and Queen county. The date of
this removal was May, 1876, and I was therefore
about fifteen years of age. My first school in King
and Queen was at Dr. Bland's, and was known in
the neighborhood as Locust Academy. My first
session there was under the instruction of Mr. James
Smith; all of the foregoing schools my brother had
attended with me. I also went to Dr. Bland’s a
second session. The teacher for this second session
was a Mr. Taylor, a Methodist preacher. None of
these varied particularly from the ordinary country
school. We had the usual hours for study and the
twelve o'clock recess in which the ordinary games
were enjoyed which are familiar to every school boy.
The boys were like all others, some quiet and studi-
ous, and others noisy and indolent. As a rule they
all came daily from their homes, and returned thither
when the day's session was over. They were happy
days, of course! At any rate they seem so in the
retrospect. I suppose that the consciousness that
my end is near makes me prematurely old, and ren-
ders my recollection of early days almost painfully
vivid. At any rate, schools and teachers and school-
mates are distinctly present to my memory.

19
My first boarding school was the well-known
Aberdeen Academy, of which Mr. J. C. Council,
A. M., is principal, and at the time of which I speak
Mr. Joseph Shackleford was his assistant. Here my
advantages were very much greater and the work
very much more difficult than in previous schools.
Both principal and assistant were admirable teach-
ers, and it was certainly a great privilege to have
their patient and painstaking instruction. I attended
this academy two sessions. The first session my
room-mates were William Thomas, of Gloucester,
and Harry and Sidney Dudley, of King and Queen
county. The second year I roomed with R. C.
Croxton, of Essex, and R. L. Gressitt, of Middlesex.
As I was older and more thoughtful I studied much
harder than I had ever done, and advanced more
rapidly. School-mates were more numerous also,
and the spirit of generous emulation was very stim-
ulating and helpful. From Aberdeen I went to
Richmond College. The first session I studied law,
and also started a course of English, which, how-
ever, I gave up before the end of the session. My
room-mate for this session was J. E. Courtney, and
I boarded at college. When I returned the second
session I boarded with several others just across
-
-
20 . .
Broad street, with a Mr. Gann. My former on
mate having left to attend the Medical College,
roomed this session with Hawley, of Fauquier. I
took both the junior and senior classes in the Law
School, and was graduated therefrom in June, 1882,
several months before I was twenty-one. I cannot
claim that I was specially studious, but I had to work
pretty hard to get my diploma.
I knew pretty nearly, if not quite, all my fellow-
students, although I did not have a great many close
friends. I cannot forbear saying that the kindness
of all my old school-mates has been most marked in
these latter days. This is true of all, but it is true.
peculiarly of those who were close to me then.
Their friendship has not been of the fair-weather
variety. It has stood the stern test of adversity.
Many of them have come within the prison walls to
give assurance of their sympathy and confidence,
and many others who could not come have written
in testimony of their kindly remembrance. It is
sometimes said that college friendships are evanes-
cent. I cannot believe it. Such, at least, has not
been my experience. No friends have been warmer,
truer, readier to extend the helpful hand than they.
Public sentiment, ferocious as it has been, did not




21
daunt one whit the ardor and warmth of their hearty
affection. I need not name them here. Perchance
they mey read these lines when I have passed beyond
the sound of their voices and can no longer grasp
their hands. If so, I send here with assurance of my
overflowing thankfulness. Friends of other days, I,
who am about to die, gratefully salute you.

CHAPTER IV.
HISTORY OF MY ACQUAINTANCE WITH F. L.
MADISON.
My perilous condition is due to my supposed con-
nection with and responsibility for the death of Fan-
nie Lillian Madison. I shall therefore give some ac-
count of my acquaintance with her. At the time of
my residence in King William county, our homes
were about twelve miles apart, and when I removed
to King & Queen, the distance between us was in-
creased to twenty-five miles. We never attended
school together, and until about seven years ago ".
saw each other very rarely, and at long intervals.
Within the five years prior to her death I saw her
more frequently, but very little even then. She at-
tended school about a session and a half in the neigh-
borhood of Little Plymouth, while I was at Aber-
deen Academy. She was at my aunt's during part
of her vacation in the summer of 1880. He we
were thrown together for awhile. Soon afterwards
she went to Dr. Garlick’s school, and I went to Rich-

- 23
mond College, and we were of course widely sepa-
rated. In 1881, she paid a short visit to Little Ply-
mouth, staying only a few weeks. In the summer of
1883, she spent about a week at my aunt's. During
these visits I saw her, of course. From that time on
I saw her only several times a year, and that under
the following circumctances: When I went to King
William Court, which I would do about eight or ten
times a year, I was in the habit of stopping in the
neighborhood of her home. My uncle, Arthur
Walker, my aunt, Mrs. Abrahams, and the Madisons,
lived in the same community. Sometimes I would
stop at my uncle's, sometimes at my aunt's, and some-
times at Mr. Madison's. I rarely went to the same
house on any two consecutive occasions, endeavoring
to divide my visits equally among them. Of course
I would see F. L. Madison when I was visiting her
home. Our relations were simply friendly and no-
thing more. There was never anything that ap-
proached unusual intimacy between us. Indeed,
knew very little about her until this trial began.
When she went to Bath to teach school we did not
correspond regularly. Indeed, I only wrote to her
once, and that a simple, brief and kindly letter, such
as one cousin would be apt to write to another. My
- |
24 -
brother, who had known her far better than myself,
wrote to her quite frequently; and he was doubtless
the “Mr. Cluverius” of whom she sometimes spoke,
as the witnesses from Bath testified. The letter of
mine above referred to was not found among her
papers. Several envelopes were found in her trunk
addressed in my handwriting. These had enclosed
my aunt’s letters, which I had directed for her, which
I usually did.
I wrote to her in September, 1884, the letter which
follows, and which was found in its present fragmen-
tary condition among her papers, and was introduced
in the trial. This is copied from the official record:
Tappahannock, Va., Sept. 14, '84.
Dear Lillio:
I feel really ashamed for not having
written to you, and I think you ought to feel more
so for not having written to me, for you have nothing
in the world to keep you from writing, and I am so
busy I have not time to do anything. I am just out
a spell of sickness that kept me from coming up t
King William Friday. I certainly wanted to come,
as 't - sk - ºk -k * * -k sk -k
[Here the letter is mutilated.]
sk * just as soon as you get this, and a long
letter, etc. Miss has gotten very much















25
better, and I hope she will be entirely well very
SOOll.
I reckon you will wonder what I am doing here.
I got here this evening. This makes twice I have
been here within the last two weeks. I went to
Richmond yesterday week after Aunt Jane; did not
stay but one night. I did wish so much you had
been over there. What a time we would have had.
The theatre was open.
[Here again the letter is torn.]
:: *k sk and Mrs. were all sick in bed
Sunday and yesterday. I don’t know how they are
to-day. John Abrahams came down on the boat last
Thursday to see aunt Jane; went back same day.
You remember you have never written that letter
you have been promising so long. Now lets have it.
I don’t want to wait a single day for a letter from
you after you get this. Well, I must close this let-
ter as I am tired. Pen is very bad. Write soon.
Your fond friend, -
T. J. CLU v.ERIUs.
P. S. When are you and that fellow going to be
married? You know you told me it would be this
winter. I think it would be the best thing for you,
so do this winter. - -
This explanation of this last allusion is as follows:
When I saw her in August, previous to the date
26
of this letter, she spoke of teaching, and in the san
conversation said she was engaged to be married but
would not tell the name of the individual, saying
however, that he was a resident of Hanover. I play-
fully remarked to her that she ought not to marry a
man whose name she was ashamed to divulge. T
half jocular remark in the postscript was suggested
by this conversation. I call the reader's attention t
the fact that several expressions in the letter incide
tally confirm my statement as to the infrequency of
our correspondence.
Beyond what I have mentioned there was no cor-
respondence between us, so far as I can recall. The
so-called “lewd poem’’ found in her trunk, I never
saw nor heard of until this trial began.
Now let those who read these statements remem.
ber that they are made by one who certainly now
has no earthly interest in writing falsely. And I
here, solemnly and in view of that august tribunal
before which I must shortly appear, declare that in
the statements foregoing I have neither consciously
perverted nor suppressed the truth.
It may be a natural inquiry with the reader of
these lines as to what are my feelings toward the girl
with whose death I am charged, I have been re-






- 27 -
presented as a blood-thirsty fiend, with the cruelty
of a tiger and the cunning of a serpent in my heart.
But it is certainly not in my heart to blacken her
memory. It is true that I am to suffer, innocently,
for her, but she is not responsible for it, and has in
no way contributed to it. Her fate was sad enough,
and although I have been charged again and again
with shocking indifference to the sickening details
of her death, the charge has not been true. I have
felt, as all others who have hearts have felt, that her
death was pitiably, inexpressibly sorrowful. But
those who thought me guilty naturally looked for
some tragic and dramatic exhibition of regret at her
death. Conscious of entire freedom from complicity
in her death, and having no specially intimate rela-
tions with her, such an exhibition would have been
forced and unnatural. I felt regret at her death, in-
tensified by the evidence of her previous fall, the
same regret that others similarly related to her felt.
As I was not her murderer I did not feel like her
murderer, and therefore did not act as her murderer.
Nothing short of this, however, would have satisfied
those who looked on me as her assassin.
I have said that she was in no way responsible for
my death. This is true of her. I cannot, however,

28. -
say the same for many of her immediate kindred.
But as it is not within the scope of this publication
to injure anybody, or to gratify any fellings of re-
sentment, I will simply leave the story of my rela-
tions with her as above given. -

CHAPTER V.
THE STORY OF MY ARREST.
I went from Richmond to West Point on the early
morning train of Saturday, the fourteenth of March.
Leaving West Point I crossed to King and Queen
county and went to Centreville, about three miles
from the Point, where I had a branch office, and
whither I was accustomed to go every Saturday.
My father met me there, and I went with him back
to Little Plymouth, arriving there late that evening.
I spent the night, and in the morning went to Olivet
church. The day was very inclement, and there
were no services, only two or three people being
present. So I returned to Little Plymouth, going
by and taking my father with me to dine at my
aunt's. The weather improved that afternoon, and
I drove as far as Stevensville on my may to Tappa-
hannock court, spending the night at Capt. Alex.
Bagby's. The next morning we went together over
to Tappahannock; Captain Bagby and I roomed
together at the hotel that night. The next day,
30
Tuesday, the 17th of March, I left Tappahannock
for home, arriving there about eight o'clock P. M.
Wednesday morning the papers, containing the ac-
count of the finding of the body of the dead girl,
supposed to be F. L. Madison, were received. These
papers were those of Sunday and Tuesday, the 15th
and 17th of March. Sunday’s paper simply an-
nounced the finding of the body with some descrip-
tion of a general sort, but nothing by which she was
recognized. Tuesday's paper announced that the
body had been identified as that of Fannie Lillian
Madison. We were all greatly shocked to hear of
her death and of her conditiou, but hoped there was
some mistake about it, that perhaps it was a case of
mistaken identity. My aunt had told me on my
return from Tappahannock that she had received a
letter from Lillian Madison, in which she had an
nounced her presence in Richmond and her intention
to go to Old Point as a companion for some friend
who was to pay her expenses. Nevertheless, th
news of her death seemed incredible. We supposed
of course, from the accounts given that it was a cas
of suicide, but still hoped that it might turn out
be some one else.
That night (Wednesday) we were all seated a






31
supper, about 7 o'clock, when some one knocked at
the door. My brother responded, and on opening
the door some one inquired for “lawyer Cluverius.”
I at once went to the door and found there three
gentlemen whom I afterwards found to be Capt.
Epps and Officer Robins of the Richmond police
force, and Mr. Oliver. One of the officers asked,
“Are you Thos. J. Cluverius? I said, “Yes, sir.”
He said, “I have a warrant for your arrest.” I ex-
claimen, “For me!” IIe said, “Yes, for the murder
of Fannie Lillian Madison.”
pause here to say that great stress has been laid
upon the testimony of the Richmond officers that I
did not ask for whose murder I was arrested. The
simple fact is that there was no time for such a ques-
tion. Before I had recovered from the surprise that
I should have been arrested at all, I was told that it
was for the murder of Fannie Lillian Madison. I
immediately asked to be shown the warrant, which
was accordingly done. I said to Mr. Robins, who
had sworn out the warrant: “Mr. Robins this is
ridiculous. What are the circumstances? I would
like to know what evidence you have?” He replied
that as I was a lawyer and knew that he would have
to testify I could understand why he had to be silent,

32
He was very kind, saying that he was actuated by no
ill-will in the matter, etc. We insisted upon their
joining us at supper, which they did, and proposed
that they should spend the night and go up to Rich.
mond in the morning. At supper my aunt alluded
to the letter, she had received. They declined re.
maining all night, and I at once began to make my
preparations for accompanying them, changing my
clothing, etc. We left and drove to King and
Queen Court House, where we spent the night.
Nothing worthy of special mention occurred o
the trip. Finding that they would give no informa-
tion whatever as to the grounds of my arrest, I said
very little about the matter except to assert that I
had not seen her while I was in Richmond, and
say, moreover, that I thought too much of her t
hurt her. I remember also that I said to officer
Robins that I was at the Dime Museum, then being
held in the old Mozart Hall, on Eighth street, on th
night of Friday, the 13th, the night on which he
death occurred. The next morning we came on t
Richmond, stopping at the Old Church, in Hanover
for dinner. The day was a little snowy. At break
fast at King and Queen Court House I said to th

33
officers that I did not anticipate any trouble in clear-
ing myself of the charge.
The officers were very kind to me during the trip.
When we arrived in Richmond that evening I was
taken to the Third station house, where I met Mr.
A. B. Evans, who had been sent for from Little Ply-
mouth on the night of my arrest, and had arrived in
Richmond together with my brother, and Dr. Bland,
our family physician, who had come with power of
attorney from my aunt to go my bail. Mr. Evans
came first and spoke of having had some preliminary
conversation with Judge Crump with reference to
retaining him as my counsel. This properly con-
cludes the story of my arrest. -
The officers at the station house and those who
arrested me were uniformly kind, and I am sorry
that my story has to differ from theirs. I must do
Officer Robins the justice to say that his testimony
bore not only the marks of conscientiousness, but
that his recollection of the facts and occurrences was
much more nearly in accord with mine than those of
Captain Epps, though I am far from charging the
latter with intentional injustice,

º CHAPTER VI.
THE TRIAL.
I will not attempt to give any detailed account of
the trial. This would be tedious for the reader and
far from pleasant to me.
Messrs. A. B. Evans, of Middlesex, H. R. Pollard,
of King and Queen, Judge W. W. Crump and
Beverly Crump, Esq., of Richmond, were my coun-
sel. They have spared no pains to secure my ac-
quittal and restore me to liberty. I need not speak
here of their unquestioned ability. This is well
known throughout the State. But they had to deal
with a jury of whom one was proven by affidavits
(presented to the Governor and mentioned in the
chapter entitled “My Petition '') to have expressed
himself as anxious for my conviction. Another
submitted his own affidavit that he would not have
brought in the verdict of murder in the first degree
if he had known that a verdict for murder in the
second degree could have been rendered; that the
evidence did not justify a verdict of murder in the
-

35
first degree, and that the jury were unduly influ-
enced. And two others submitted their statements
that they were under the impression that they either
had to find murder in the first degree or to acquit.
The juror first mentioned swore before he was ac-
cepted that he had not expressed any opinion as to
my innocence or guilt. The other three heard the
judge's charge to the effect that they could ſix the
grade of murder, but it seems now that they did not
hear it! And yet these were the men to whom was
entrusted the grave matter of deciding the question
of life and death for me.
Moreover, I do not think it is open to question
that all of them were either consciously or uncon-
sciously influenced by public opinion, which blindly
and unreasoningly clamored for my destruction
throughout the trial. It is not to be wondered at,
therefore, that the learning and eloquence of those
who represented me were unavailing. Argument of
course was useless to one who had previously de-
clared his opinion on the case and who swore he had
not. And I suppose that it is not harsh to say that
gentlemen who paid no attention to the charge of
the judge were hardly competent to sift and pass
upon such a mass of complicated testimony.
36
-
was completed the 11th day of May. When com-
The indictment of the grand jury was found on
6th day of April. The writ of venire facias was is-
sued on the 29th of April, returnable 5th of May.
The work of selecting a jury began on May 5th, and
pleted the jury consisted of six from the city of Rich-
mond and six from the city of Alexandria. The ex-
cited state of public feeling can be seen in the fact,
that after extraordinary effort to secure a jury from
a city of 70,000 inhabitants, the panel had to be com-
pleted from another city. The evidence began to be
heard on the 13th of May, and the trial proceeded
with little intermission until the 4th day of June,
when the jury rendered a verdict of guilty. A mo-
tion to set aside the verdict was made on the follow-
ing day, and overruled on the 8th of June. A mo-
tion for arrest of judgment was made on the 8th, and
on the 19th of the same month the motion was de-
nied, and the sentence of death was pronounced.
On the following day four bills of exceptions were
offered, which were made a part of the record. On
26th of June, a motion to set aside the verdict, on the
ground of newly discovered evidence, was made.
This evidence was in the shape of an affidavit of Dr.
Jos. R. Garlick (who was thoroughly familiar with


37
the handwriting of F. L. Madison), to the effect
that the superscription of the “torn note” was not
in her handwriting. This motion was overruled the
same day, and this closed the case in the trial court.
A great mass of testimony was presented by the
Commonwealth, much of that attempting to connect
me with the supposed murder conflicting, and all of
it uncertain.
First came that relating to the finding of the body,
and then that of the coroner, who gave it as his opin-
ion that the “medical facts were not inconsistent with
the theory of suicide.” The finding of the shawl on
the Dunstan fence, of the hat in the dead-house, of
the watch-key near the reservoir fence, and of the
satchel and bundle two miles below Mayo's bridge,
were all testified to. -
Then came the attempt to prove the existence of
guilty relations between myself and the dead girl as
a motive for the alleged crime. If the stenographi-
cal report of the testimony on this head conid be
read it would be seen that nothing was proven. I
need only mention, for the purpose of this publica-
tion, the testimony of the witnesses from Bath, the
introduction of the Curtis letter, the evidence re-
lating to the torn note found in the waste-basket at
38
the American Hotel and supposed to be addressed to
me (although it went into the hands of the detective
bearing the name, as was supposed, of T. J. Clem-
ents), but which was proven by the Commonwealth
never to have reached me. Then came an attempt
to prove that I was with the dead girl on Belle Isle
between 12 and 2 o'clock of March 13th. These
witnesses all swore that the man they saw had a
mustache. Mr. James, who testified subsequently
for the Commonwealth that he had seen me near the
American Hotel during the day, swore that I was
clean shaved. The Belle Isle witnesses thought I
resembled the man they saw. Martin testified that
he met a man and woman on the bridge leading to
Belle Isle about 12 M. Isaacs swore that he saw the
man and woman on Belle Isle not earlier than 1:45
P. M. It was proven by Mr. Flournoy that it took
thirty minutes to walk from Belle Isle to the Ameri-
can Hotel. So that if the woman seen on Belle Isle
was Lillian Madison she could not have been at the
American Hotel before 2:15 possibly. But Mr.
John S. Dodson, the proprietor, and Mr. Charles
Dodson, the clerk, both swore that she came in and
called for her key about 1 P. M.
The testimony of the negroes Tyler and Wm.



39
Tucker, and that of the car-driver and Dr. Stratton,
was all of it very voluminous. -
The negroes swore profusely. The very miute-
ness with which they remembered everything and
the glibness with which they told it sufficiently indi-
cate their utter untrustworthiness. Tyler that very
night took a guest of the hotel for the man he
thought he saw a few hours before. Both of these
negroes were seeing hundreds of people daily, but
this couple they saw on Friday night, March 13th,
made a most wonderful impression on them. Tyler
performed the marvelous feat of pretending to recog-
nize me by an overcoat which it was absolutely
proven I did not wear to Richmond.
Dr. Stratton testified that he met a man and
woman (which he says was not an unusual thing
on that street at that hour) on Reservoir street
about nine o'clock the night of the 13th of March,
and the man stopped him and asked the name
of the street and the time of night. He testified
that I looked “something like the man,” but
also said he did not recollect ever seeing me be-
fore. It was a strange thing for anybody contem-
plating murder to do any way—to invite attention
and inspection under a gas lamp. Then followed
40
Joel's testimony, for an account of which the reader |
can consult the chapter on the watch key. The off-
cers testified as to circumstances of arrest, etc. A
separate chapter has also been devoted to that.
This is a brief and of course inadequate summary of
the testimony presented by the Commonwealth, which
has not been elsewhere discussed. Other witnesses
were introduced, but their evidence was not of suffi-
cient importance to be noticed here.
My aunt, Mrs. Jane Tunstall, was my first witness.
The most important part of her testimony was that
relating to the watch key. This has been noticed
elsewhere, and I need only say that it was to the
effect that the key found at the reservoir was not
mine, and that the key produced in court by herself,
which had a hexagonal head and a brown stone set
in it, was mine, given me by herself. As a part of
her testimony several letters from the dead girl were
introduced. Most but not all of these were compar.
atively unimportant. In August, 1883, she had ex
pressed herself as follows: “It is my prayer to-night
that the sun of to-morrow may shine on me a corpse.
O! if suicide were not a sin how soon the lingering
spark of my life would vanish; but I will wait God’s
own time.” This shows that the idea of suicide
-




41 -
could not have been foreign to her. The letter dated
March 14th, 1885, was also submitted. It will be
noticed that the date of this note was either pur-
posely or accidentally put wrong. The 14th was the
morning the body was discovered.
If she destroyed herself then she possibly mis-
dated it purposely in order to mislead. This letter
referred to the visit to Old Point, mentioned in the
so-called Curtis letter, and contained a message to
me in these words, “Love to all, and tell Tommie I
will write to him real soon.” In the same letter she
wrote, “You all need not write until you hear from
Hºle again.” These expressions showed that she did
not know of my presence in Richmond, and that
probably she was even then contemplating suicide,
and so requested that she should not be written to.
Then came my brother's testimony, corroborating my
auntin every particular as to the watch-key, and estab-
lishing also the fact that the pendant chain was given
him at home. A number of witnesses were intro-
duced, including a minister, a college president, school-
mates, merchants and neighbors of the community,
who testified to my previous blameless life. Many
of those who were constantly thrown with me swore
that they had never seen me wear a mustache. Some
º

42 -
of them gave important testimony as to the watch-
key, which is mentioned later on. Several
that I had no mustache in March. Mr. T. P. Bagby
testified to seeing me at Mozart Hall on the 13th,
between 2 and 2:30 P. M. Vashon testified that I
left the hotel about 8 P. M. Henly swore that he
saw me about 11 near Eighth and Main, and about 1 at
Post-office. Mr. Mark Davis testified that I was at
his hotel between 11 and 12 o'clock of the night of
the 13th. Then a portion of the testimony sº
before the coroner was submitted. A number of
witnesses testified as to unimportant matters, and the
testimony closed. The argument began on the 1st
of June and was concluded on the 4th.

CHAPTER VII.
THE TRIAL (CONCLUDED).
Throughout the trial the Hustings court room was
crowded with spectators. Not many of these were
sympathetic with me, though some of them were. It
was clear that as a rule they had prejudged the case,
and were willing to believe pretty much anything
against me. It was a novel experience to me. I
had never been accused of any crime before, and had
never been the defendant in any trial. The humilia-
tion which I naturally felt was profound. I knew
that hundreds of hostile eyes were watching every
movement and every expression. If I had smiled
they would have interpreted it as a sign of the most
cruel and wicked indifference to the sorrowful details
of Lillian Madison’s death. On the other hand if
I had wept they would have published to the world
that I was suffering the pangs of remorse. I knew
all this, and so I sought to be calm and unmoved.
How far I succeeded is not for me to say; I need
only add that the quiet demeanor which I sought to
44
maintain was all in due time used as an argument to
establish my guilt. Such was the public sentiment
which I had to meet. I beg to say, before leavin
this matter, that I was never without sympathy for
the poor dead girl. - -
From the Hustings court the case went up by du
legal process to the Supreme Court of Appeals o
eight bills of exceptions. It was argued in this court
some time between March 29th and April 2d, 1886,
and submitted. On the 6th of May following, this
court refused to grant a new trial, Judge Hinton
dissenting. Only two of the four judges agreed a
to their reasons, namely Judges Lewis and Faun
leroy, and their opinion was filed at the time th
decision was rendered.
Judge Lacy concurred in the decision, but did not
file his reasons until the latter part of August, and
Judge Richardson, who also concurred, so far as I
know, has not yet (Dec. 29, 1886) filed his.
Judge Hinton's dissenting opinion will be found
in Chapter VIII. -
I devote the remainder of this chapter to some
extracts from the brief submitted by Messrs. Wm.
W. and Bev. T. Crump in reply. I use the reply
because it is much more brief, and succinct than the





- 45 - -
petition. Justice, both to myself and the learned
gentlemen who represented me, requires me to say
that I cannot give in the limits of this publication
more than the mostcursory glimpse of their argument.
The “intention to murder ’’ is charged to have
come over the accused as early as 9 o'clock on
Friday night, and hence to the interval between that
time and the alleged date of her death between 10:30
and 11 o'clock that night, and the incidents occur-
ring therein, specific enquiry should be directed.
Before dealing with the evidence in detail it will
be noted that it is insisted that no other man was
ever with her in the city; that she came here solely
to meet the accused, etc. It will be further noted
that from about one o'clock in the day until six in
the afternoon she was at the hotel. Then at 6 o'clock
she went out alone. It is charged that he came into
the hotel about half past 8 o'clock, went up to the
office, enquired for the deceased, wrote his name on
a card furnished by the clerk, which was carried to
her room by a servant, whom he accompanied as far
as the parlor. Let it be remembered that at this
point the Commonwealth proves the following :
While he was thus waiting in the parlor the de-
ceased came up the steps of the ladies’ entrance from
-
- 46 - - -
Main street with a man, in whose charge she was, and
who asked for a room for her. That man carried
her into the parlor where the supposed accused was,
who was then and there seen by her as she was seen
by him, and no sign of recognition passed betwee
them. She was taken thence by the servant to her
room, and the man who brought her in went back
down the ladies entrance into the street from which
he had come; the other person, alleged to be the
accused, also going down the stairs.
Now, it is demonstrable from these facts proved
by the Commonwealth—if indeed they are true—
that the accused was not the person who came to the
office and went to the parlor. * * * It is fur-
ther demonstrated by the testimony above stated that
the deceased had companions in the city with whom
she associated. * * * Tyler describes this young
man as wearing a “red scarf,” as having “ the ap-
pearance of country man,” “ had on a Derby hat,”
“ a brown suit of clothes.” This was before he saw
the accused at the jail. Then he said, “I recognize
the overcool.” So it appears before he saw the ac-
cused he described him by his suit of clothes, with-
out the slightest reference to an overcoat, for if he
had had one on the color of the suit could not have






47
been discerned. But when he was carried down to
the jail to identify the accused as the “ young man,”
he does so by the overcoat he then had on, and also
undertook to state that the overcoat which he them
saw was a reversible one, and which side of it was
worn out that night at the hotel, viz.: “the light
side,” the proof in the case being absolute that the
accused did not wear a reversible overcoat that night
at all.
* -k >k >k - × * >k
The brief (of the Commonwealth) states that it is
from the hotel to the reservoir two miles, and it un-
dertakes to trace them there by the testimony of
Tucker, Williams and Stratton. Tucker drives the
tug-horse of the street-cars, and his evidence is given
in full by the stenographer.
So that we get a psychological picture of him. In
the first place, he had been riding a tug-horse up
Main street, from 15th to 12th, the corner where the
American Hotel is on one side and the Dispatch office
on the other, perhaps fifty times a day for three
months, and he did not know the name of the Ameri-
ean Hotel, though he knew it was a hotel. The
counsel for the Commonwealth, who then had him
under examination, forbore to ask him, on the exam-
-
48
ination-in-chief what day of the year, or what day
the month, or what day of the week, he pretended to
have seen the accused get on the car, but were con
tent to show by him that he had seen the accused and
a lady, at some time in the past, get on. When his
examination was over, they again took him in hand,
and he could then recollect it was on Friday night,
but could not recollect the day of the month, nor did
he ever say what month. -
Thereupon he was asked by one of the Common-
wealth’s attorneys, “Do you recollect how long it
was before the body of that woman was found at the
reservoir?” To this he replied, “No, sir; I don’t re
collect how long it was before.” Then a leading
question is asked him: “Was it the Friday before
you testified at the coroner's inquest, or not?” To
this he replied, “What do you mean?” And the
it was said to him, “Before you gave in your testi
mony about it?” And he replied, “Yes, sir.”
He was examined on the 22d of March; the Fri
day before was the 20th of March, so that the day
fixed by him as the day on which he saw the man
and woman, was just one week out of time—one week
after the night of the drowning—one week after th
accused and the deceased were supposed to be in the
-





49 ºk
streetcar—one week after her death, and two days
after the accused was in custody! - -
Williams, the car-driver, was asked, on examina-
tion-in-chief, “Look upon the prisoner and see whe-
ther you can recognize him or not.” A. “I don’t
know "..." I could exactly recognize the prisoner
or not, but he seems something like the gentleman
that spoke to me that night.” -
Dr. Stratton, the third and last witness to prove
the deceased and accused were together that night
between 8:30 and 10:30 o'clock, testifies on the ques-
tion of identity in his examination-in-chief Q.
“Will you look upon the prisoner and see if you ever
saw him before ?” A. “I have no distinct recol-
lection of having seen him.” This is all the evi-
dence of identity in the case from the time the parties
are said, by the prosecution, to have left the hotel
until they were supposed to be last seen. Does it
warrant the death sentence of the accused He
was a total stranger to the witnesses. The female
said to be with him is not identified at all. The
negro boy spoke of her wearing a red shawl, which
neither Williams nor Stratton saw upon her. * *
Williams said the man he saw had on a light-colored
overcoat; Stratton said the man he saw wore a dark

* 50
one. Upon this proof the brief (of the common.
wealth) claims that the accused carried the deceased
via the street car and Reservoir street to the reser.
voir. Can evidence be more incomplete and
shadowy Żº
The foregoing extracts relate only to the questio
of identity, and are introduced only to give th
reader some notion of the vague character of the
testimony under which I was convicted.
The petition and the brief contain the whole out
line of the argument, which it is impracticable to giv
here.
I began the account of the trial by speaking of
my counsel. I close by offering them my hearty
thanks for the thoroughness with which they served
line.

- -
CHAPTER VIII.
UDGE HINTON'S DISSENTING OPINION.
I print here with, without note or comment, the
opinion of the able judge who dissented from the
decision of the Supreme Court of Appeals. It
presents an excellent summary of the case, and in
its legal argument will be specially interesting to
members of the legal profession.
CLU v. ERIUS
ºs. Dissenting Opinion.
CoMMON wºal, T.H.
It would seem to be beyond doubt that the power
to punish for crime possessed by all civilized com-
munities had its origin and source in the inherent
right which belonged to every individual, in a state of
nature, to secure himself against injury from his fel-
lows; and that it was transferred, in course of
time and the progress of civilization, from the indi-
viduals to the sovereign power of the various com-
munities as they came into being. Rutherferth's
Inst., chapter 18; 1 Bish. Cr. Law, section 9; 4 Bl.
Com., chapter 1, section 8.
- - 52
And it cannot be doubted that the prompt and
fearless exercise of this power, on all proper occa.
sions, is absolutely essential to the safety and well.
being, if not to the life, of all organized society.
Nevertheless, as this right is confined to the use of
such means and the imposition of such penalties as
the law-making power of the State deems necessa
to prevent the recurrence of crime, it is obvious that
the right to exercise this power never arises, and
cannot be lawfully exercised, until there has been a
crime positively established, and the real criminal
certainly found and legally convicted. The exercise
of this right, therefore, in any case, where there is
reasonable doubt either as to the crime or the crim-
inal, especially in cases of murder, where the penalty
is death, can never be justified, and is likely to work
irreparable injury to the accused, the defeat of the
real ends of punishment, and tend to a want of con-
fidence in the humanity of the law and the due ad.
ministration of justice. Hence it is that to meet
exactly such cases the maxim, “It is better that
ninety-nine (that is an indefinite number of) guilty
persons should escape punishment than that one in
nocent person should be punished,” has been wisely
adopted. Johnson's case, 29 Gratt, 820; Smith's
case, 21 Gratt. 818.
It must also be obvious that as the only ends sought
to be obtained by the infliction of punishment are-
first, to prevent the criminal and others from the
commission of like crimes; and next, to amend the






- 53
criminal, that the idea, sometimes advanced by the
unthinking, that a person charged with a specific
offence may be rightly punished for some other of:
fence, or for general depravity, or that the offence
actually committed, although separate and distinct
from the one with which he is charged, being equally
heinous, he may be properly punished for the offence
not charged, in order to rid the community of him,
has no place in the criminal jurisprudence of this or
any other country.
And as it is the bounden duty of each judge of
this court, in every case properly here, to carefully
examine the proceedings of the lower court, and if
he finds that there has been a mistrial or failure of
legal justice, either because the prisoner has been
denied any, even the least important, of the safe-
guards which the law has justly and mercifully
thrown around him for his protection, or that the
jury have reached an erroneous conclusion upon the
evidence, or that he has been prejudiced in any other
respect so to declare, I shall offer no apology for dis-
senting in this, the first case in this court, so far as I
can recall, in which a judgment of affirmance has
been entered without at least three of the judges
being able to agree in all the reasons by which their
conclusion was reached, and shall proceed to state as
briefly as I can the grounds which, in my judgment,
clearly entitle the accused to a new trial. -
54 -
THE DISCHARGE OF JURYMAN LARKE, -
The first error of which the accused has the right
to complain is the rejection of the juryman º
As appeared by the first bill of exceptions, after
twelve veniremen, among whom was the venireman
Robert W. Larke, had been examined upon then
voir dire, and accepted by the court as competent in
rors, but before the panel had been completed, and
before said jurors had been sworn to try the cause
the attorneys for the Commonwealth challenged the
juror Larke upon the ground that he had previously
stated that he “would not under any circumstances
convict a man upon circumstantial evidence.” And
they then introduced, in support of their challenge
two witnesses, who testified in substance as follows:
That in a conversation held with the juror a week
or ten days before, begun about this case, but which
had drifted into a talk about crime generally, the
juror Larke made the remark above mentioned.
whereupon Larke took the stand and said under
oath that he had forgotten about the conversatio
and could not recall the words he had used. “What
I meant,” said he, “ by what I said was, that a man
ought to be rerº slow and cautious in convicting a man 0.
circumstantial evidence. If this case presented an u
broken chain of circumstantial evidence, fully proved
I would convict him if I was convinced. I don’t re-
member having said that I would under no circum
stances hang a man on circumstantial evidence.
didn't intend to say that I wouldn’t convict a man in an


- 55
base of circumstantial evidence, but I would be very cau-
ºols ºn doing so. I made the remark in a generul
way.” Now, it is undoubtedly well settled that no
person who has conscientious scruples against the
infliction of the death-penalty, or who is conscien-
tiously opposed to convicting in a capital case on
circumstantial evidence, is a competent juror in any
case where the penalty may be death, for the reason
that every one in order to be a competent juror must
be in a condition of mind to find a verdict in accord-
ance with the law and the evidence. To place any
one entertaining such scruples upon a jury and go
through the forms of trial, with the almost certain
result of a mistrial, would, therefore, be a mockery
of justice and a prostitution of the law which no
court could for a moment tolerate.
But this principle has little or no bearing upon the
case of this juror. It is not pretended that this juror
had any scruples against the infliction of the death
penalty, nor can it be claimed upon any fair inter-
pretation of his sworn statement, taken as a whole,
that he has conscientious scruples against finding a
verdict of guilty in a capital case on circumstantial
evidence; for, viewing his statement in the proper
light, it is nothing more nor less than a direct asser-
tion, that although he would be slow and cautious
in convicting in such a case, yet that he would convict,
if convinced of the guilt of the accused, by an un-
broken chain of circumstances, fully proven. It is
true that, in all likelihood, he did make in the course

56
of a conversation, in which he was very properly
combatting the propriety of forming an opinion
upon newspaper accounts of the evidence, the re.
mark attributed to him, but the evidently hones
disavowal in open court of such a want of faith in
the probative power of circumstantial evidence a
the use of that language imputed to him and con
tained in the declaration, “I didn't intend to say
I wouldn’t convict a man in any case of circum
stantial evidence, but I would be very cautious in
doing so, would seem to imply, coupled with the
fact that he had forgotten both the utterance and the
occasion on which it was made, shows that it was
nothing more than the inconsiderate remark of on
who, in an idle moment, has given expression to
sentiment which he did not feel, and to a purpose
which he never entertained. Of him it may be said
as was said of another juror by the Court in State
vs. Dicken, 35 La. An. 46: “His answers given
under the sanction of an oath are certainly a bette
and a safer test of his competency as a juror than the
thoughtless remark referred to.” -
It is not pretended that he was biased either for 0.
against the accused, or that he had conscientious
scruples against the infliction of the death penalty
Unless, then, his views as to the way in which cir-
cumstantial evidence should be regarded are wrong
he was a competent juror. That his views on this
subject were not wrong seems clear from the follow-
ing quotations: In Alghin vs. State, 25 Miss. R.

57
584, the High Court of Errors and Appeals of that
State held : First, that in the application of circum-
stantial evidence to the determination of a case the
utmost caution and vigilance should be used; second,
that it's always insufficient when assuming all to be
proved which the evidence tends to prove, some
other hypothesis may still be true, for it is the actual
exclusion of every other hypothesis which invests
mere circumstances with the force of truth; and
third, that where the evidence leaves it indifferent
which of several hypotheses is true or establishes
only some finite probability in favor of one hypothe-
sis, such evidence cannot amount to proof, however
great the probability may be. The second and third of
these propositions, says Moncure, P., speaking for
the whole court in Johnson's case, 29 Gratt., 817,
were literally taken from 1 Starkie on Evidence, 572,
and correctly expounded the law. In Dean’s case,
32 Gratt., 912, this court held, as the syllabus of the
case will show, that circumstantial evidence must
always be scanned with great caution, and can never
justify a verdict of guilty—especially of murder in
the first degree, the penalty of which is death—
unless the circumstances are of such a character and
tendency as to produce upon a fair and unprejudiced
mind a moral conviction of the guilt of the accused
beyond all reasonable doubt. And in that case
Christian, J., speaking for the Court, said: “We
are painfully aware that this is a case of purely cir-
ºumstantial evidence; and we have therefore given

58 -
to it the most careful and anxious consideration.
And, looking with the closest scrutiny to all the facts
and circumstances proved, we find them, when come
bined, utterly inconsistent with the innocence of the
accused, but consistent with no other reasonable
hypothesis but that of his guilt. When these things
concur the force of circumstantial evidence becomes
as potent as that of direct evidence.” And Wills,
in his book on circumstantial evidence, quotes with
approval the language of Mr. Justice Bayley, in Rex
vs. Downing, that “where there is nothing but th
evidence of circumstances to guide you, those cir-
cumstances ought to be closely and necessarily con-
nected, and to be made as clear as if there were
absolute and positive proof.”
Such being the law in cases of this character, it
must be perfectly apparent to every º
mind that Larke was a competent juror; that he
thoroughly understood the temper in which a juror
should consider a case supported by evidence purely
circumstantial, and that such was the peculiar frame
of his mind that he was especially fitted to act as a
juror in cases of that kind.
It is a matter of utter impossibility to accurately
estimate or ascertain the value of such a juror in
such a case, especially if, as usually happens, the
feelings of the public are deeply aroused against the
supposed perpetrator of the crime. The exclusion
of such a person from the jury is manifest error to
the prejudice of the prisoner, and accordingly, wº

59
find it, as we would naturally expect, laid down in
Montague's case, that in every such case it is unneces-
sary to inquire whether the prisoner has been pre-
judiced by the illegal exclusion of the juror, “because
in the opinion of this court, where any legal right
has been denied to a party on trial for a criminal
offence, any of the safeguards thrown around him by
law for his protection has been disregarded, it is not
for this court to say what might or might not have
been the effect upon the case of the accused, but will
teverse the judgment and remand the case for a new
trial. And if it be necessary to enable him to exer-
cise his right to have the judgment of the court
reviewed in the appellate tribunal, the law will in-
tend prejudice, and will hold it impossible in such a
case to say that a fair and impartial trial has been
had.” And such is the settled law of this State ever
since that case. It is, however, contended that if the
court did not have the right to exclude Larke from
serving as a juror upon this ground, that it did have
the right to discharge him, because, after he had
been challenged by the State, he stated to the court
that he was over sixty years of age; that he had not
remembered it when examined on his voir dire, and
that if it was not now too late he claimed his exemp-
tion from service on the jury on that ground. And
such was my first impression, but subsequent reflec-
tion has satisfied me that I was entirely mistaken.
Larke's right to be exempted from jury duty on this
ground was purely a personal privilege, which he

60
had the right to exercise up to the time that he was
accepted by the court. By his failure to claim his
exemption before he was accepted, I think, he waived
his right. Logically his right to exemption ceased
when the court accepted him, and his subsequent
effort to get the benefit of an exemption which he
had waived did not constitute such a cause as the
court had the power to discharge a juror for.
But, besides this, it is certainly a well-recognized
principle of law, that courts, even while exercising
their admitted functions, must so exercise them as
notunnecessarily to prejudice the rights of the accused.
In this case it distinctly appears that this juror was
discharged in the presence of at least four persons
who had been examined on their voir dire, and who
subsequently served as a part of the jury without in
dicating, so far as this record shows, the ground of
his dismission. Under these circumstances it was the
duty of the court to have stated the ground upon
which he was discharged. The failure to do so was
certainly well calculated to mislead at least these four
jurymen, if not others who may have been present
Because, for aught that appears, each of those per
sons might well have supposed that Larke was dis
charged, not because of his claim to be exempt from
jury duty, but because of the caution with which iſ
was evident he regarded circumstantial evidence, a
this may have caused them to scan less closely t
circumstances of the case, and to attach more impor.
tance to those circumstances than they would other

61
wise have done. To say the least, it is highly proba-
ble that the prisoner has been prejudiced by the
failure of the court to state the ground upon which
he rejected the juror, and equally probable, may cer-
tain, in my judgment, that a person was excluded
from the jury that tried the case who was eminently
qualified to serve as a juror in just such a case as this
is. In Montague's Case, 10 Gratt. 799, this court re-
versed the judgment because it appeared that the
lower court had discharged a juror because, being a
neighbor of the wife and family of the prisoner, who
lived on the lot adjoining his residence, he stated to
the court that he was unwilling to trust himself un-
der the circumstances, there being great intimacy be-
tween his and the prisoner's family, although the
juror stated at the same time that he had no preju-
dice for or against the prisoner, and could render a
fair and impartial verdict on the evidence which
might be adduced. In that case the court held, that
while the trial-court may examine a juror on oath,
and in the exercise of a sound discretion discharge
him, yet that if it shall appear that the court erro-
neously exercised its discretion in discharging such
juror without good and sufficient cause, that it is a
matter of exception on the part of the accused, for
which the judgment of that court should be reviewed
and reversed. And so I hold here upon what I con-
ceive to be very much stronger ground.
But four cases are specially relied upon by the at-
torneys for the Commonwealth in their brief, and by

62
Judge Fauntleroy in his opinion as sustaining the
action of the Hustings Court. After a careful ex-
amination of those cases, however, I can discover
nothing in either or all of them which militates in the
slightest degree against the views presented herein.
as a brief reference to them will show. -
In the first of these cases, 15 Tex. App. 534, the
challenged juror admitted upon his examination in
court that on the previous day he had had a conver.
sation with the defendant with reference to his case,
in which he said to him that he hoped or believed
(he did not remember which word he had used) that
he (the defendant) would come out all right. Where
upon he was challenged by the State for cause, and
required by the Court to stand aside. In that case
the juror was evidently regarded as biased in favor
of the defendant.
In the next case—Metzger vs. State, 18 Fla., 486–
it distinctly appears that the juror was rejected in
obedience to the express mandate of the statute of
that State, which says that “no person whose opin.
ions are such as to preclude him from finding any de
fendant guilty of an offence, punishable with death.
shall be compelled or allowed to serve as a juror on
the trial of such an offence,” and the Chief Justice,
in delivering the opinion of the court, after º
the words of the statute set out above, said: Here
is an express statute disqualifying those whose º
ions are such as would prevent them from convicting
persons of capital offences from sitting on juries in

63
such cases. Here two persons made oath in his
presence (meaning the presence of the judge) that
Hoke (the juror) had said that if he were on the jury
he would not go for capital punishment; in other
words, he would not be an instrument of inflicting
the penalty of death, and he makes no denial of the
charge that these were his opinions. In that case the
objection to the juror was that he was opposed to
capital punishment, and he does not say before the
judge either that his views had undergone a change,
or that he never meant what he had previously said.
What similarity, may I then be permitted to ask,
can there be between that case and this? What
similarity can there be between a juror who is op-
posed to capital punishment, no matter how cogent
and full the proof may be, and one who simply says
he will do, in a case of circumstantial evidence,
what the law requires him to do in such a case—
namely, scan the evidence closely, and only find a
verdict of guilty if the chain of evidence is unbroken
and the proof full and convincing :
In State vs. Ward, 39 Vermont R. 231, the juror,
upon being interrogated in respect to his views of
capital punishment, declared he had conscientious
scruples against rendering a verdict of guilty in a
case where the punishment was death, and that he
believed the law inflicting the punishment of death
was wrong. He was thereupon discharged, because
the court did not regard him as an impartial juror.
But what possible analogy can there be between the
* . .
64 -
case of that juror and a juror who does not object .
the death-penalty, but only requires what the law ex-
acts—an unbroken chain of circumstances directly
connecting the accused with the ultimate fact to be
proved—to wit: the violent death of the person sup:
posed to have been murdered—before he will render
a verdict of guilty?
In Waller vs. State, 40 Ala. 325, the juror was set
aside for having a fixed opinion against capital pun.
ishment. The court, however, saying that to act or
to decline to act in such a case as this is not error
(meaning in the lower court). Thus in effect saying
that it would not have been error, under the statute
of that State, for the lower court to have allowed the
challenged juror to remain upon the jury, unless
challenged by the State's attorney for cause.
Having thus stated what, in my judgment, ma.
cases really decide, it seems almost a work of super-
erogation to add, that I am unable to perceive tha
they even tend to sustain the action of the trial-court
in this case. Neither one of them asserts the doc-
trine that a person would be incompetent to sit as a
juror merely because he would require convincing
evidence before he would convict in a criminal c
depending upon circumstantial evidence, and neither
of them establishes the power of a court in this Stal
to discharge a juror after he has been examined
upon his voir dire, has answered satisfactorily and
been accepted, merely because he says that he is
- - - - - - - - - - - - -








65 -
from service on the jury on that ground, if t was
not too late. - -
THE “LAURA CURTIS ’’ LETTER.
The next error committed, as I conceive, by the
court below was the admission of what is known in
the record as the “Laura Curtis letter.”
It is in these words: -
RICHMOND, VA., March 9, 1885.
My Dear Lillie: It is on business of sad impor-
tance I must write to you to-day, as you know mama,
both mama and Aunt Mary have both been in
wretched health for a long time, and both have been
getting worse for some time, and the doctors say if
Aunt Mary don’t leave here, and that soon, she can-
not stand it long, so they advise papa to take her to
Old Point, in order that she can take those sun-baths
which are proving so beneficial to consumptives; but
she will not agree to go unless I go with her, which,
of course, is out of the question, as mama is too ill
for me to leave her; so we have been trying to per-
suade her to let some one else accompany her. So
at last she agrees that if we can get you to come
down and go with her she will consent to go. Of
course we told her you were teaching, but she begged
we would try to get you to come and go with her
just as company for her, as her nurse will go with
her, who has been waiting on her all the time. She
66
. the reason she wants you to be with her is on
ccount of your being so quiet and gentle in you
manners when you were visiting us, and she is so
nervous she could not bear to have some one with
her who was not gentle and kind. She told me tº
beg you please to grant her this request, as it was
her last resort for momentary relief from her suffer.
ings, as of course we know she can never be well.
My dear Lillie, imagine how it is with me—my deal
mama and aunt both so sick. Mama is rapidly
declining, I think, and aunt worse, I think, but iſ
she can get to Old Point we hope she will get better
She will only stay there one week, as in that time
the doctors think she will be better, if it will benefit
her at all. Lillie, please come. Ask Mrs. Dickerson
I say please excuse you under these sad circumstances
just for a week, and she will do it. I know, as you
wrote me she was so good and kind. Papa wishes
me to say to you if you will come and go with aun
he will never forget your kindness, and besides,
will pay all your expenses and $2 per day for even
day you are with her. He is such a devoted º
to her he would do anything in his power. Lillie
don’t get any dresses for the purpose, as you an
myself wear the same clothes, and as we wanted, i.
possible, to attend the exposition, I have had mad
up a lot of new clothes for the purpose, but, of cours
now we can’t go, but we were in hopes mama an
aunt would get better, so we could go, but we haſ
given it out now. Now, dear Lillie, we are





67
hopes to see you soon. If you will accompany
aunt, come Thursday (12th), either on the mail or
express. We shall send to meet you; and please,
dear Lillie, don’t disappoint us, for you know there
is nothing I would not do for you. If aunt should
get too ill to go we will telegraph to you, so you will
get it before time for you to start the 12th. If you
will ask the lady you teach for to excuse you for just
this short time she will do it, I know. All send
much love. Aunt is very nervous to-day.
Ever your loving schoolmate,
[This letter is signed] LAURA. D. CURTIs.
This letter is proven to be entirely in the hand-
writing of the deceased, and it is admittedly untrue
in every line and sentence.
There is not one particle of evidence in the record
to show that he ever saw or knew of it; and the
proof at the trial establishes beyond a doubt that she
did not go to Richmond for the purposes indicated
in that letter. It was, therefore, unless connected
with the prisoner in some way, and the prosecution’s
efforts to supply such connection by presumption,
nothing more nor less than a base forgery, conceived
and executed by the deceased, and palmed off upon
Mrs. Dickenson, the lady with whom she was living,
as an excuse for leaving her house. -
It was admitted by the court and allowed to be
used by the prosecution as evidence to establish two
things: First, a conspiracy between the accused and
68
the deceased to deceive Mrs. Dickenson; and next,
a deliberate purpose, on the part of the accused, to
bring the deceased to Richmond, in order that he
might have an opportunity to murder her. That it
prejudiced the accused cannot be doubted. As the
fifth bill of exceptions says, the court permitted “the
letter to be read as a part of the statement made by
Miss Madison to the witness as explanation and pre-
paration of leaving her home in Bath county for
Richmond.” It was argued here, that being the
reason assigned by her for leaving Bath county, it
was “the inducement to or the cause of coming,” and so
admissible as a part of the res gesta.
Now, the precise meaning of this language is not
very clear. But that is immaterial, for it matters
not in what aspect the argument for the State is
viewed, it will be found to be unsustained by the
authorities—even those cited for the State—as I
shall now proceed to show. In Volume I., Whart.
Law of Evid., section 258, that author says: Th
res gesta may be therefore defined as those circum-
stances which are the undesigned incidents of a parti.
ticular litigated act, and which are admissible when
illustrative of such act. These incidents may be
separated from the act by a lapse of time more or
less appreciable. They may consist of speeches of
any one concerned, whether participant or by:
stander; they may comprise things left undone as
well as things done. Their sole distinguishin
feature is that they should be the necessary inciden








69
of the litigated act; necessary, in this sense, that
they are part of the immediate preparations for or
emanations of such act, and are not produced by the
calculated policy of the actors. In other words, they
must stand in immediate causal relation to the act—
a relation not broken by the interposition of volun-
tary individual wariness, seeking to munufacture
evidence for itself.
In Hayden’s case, 9 Reporter, p. 237, Park, C. J.,
in his charge to the jury in substance said that the
declarations of the deceased that she was going to
the place where she was subsequently found mur-
dered to take “quick medicine,” to be given her by
the accused, in order te procure an abortion, made
while in the act of going, are competent to charac-
terize her act of going, and the declaration and the
act thus united becomes a fact in the case. In this
case the deceased when found in the woods had 90
grains of oxide of arsenic in her stomach and her
throat cut. The jury, therefore, very properly con-
cluded that the party, as the judge in his charge
said, who administered it to her must have met her
by appointment, for he must not only have had the
arsenic, but a vessel of some kind in which it was
prepared to be administered. This case is cited by
Wharton in his book on criminal evidence in sup-
port of the doctrine that evidence of the statements
of the deceased, at the time of the attack or so soon
afterwards as to preclude the hypothesis of concoction or
70
premeditation, charging the defendant with the act.
may be received.
In Hadley vs. Carter, 8 N. H., 40, which was a
suit brought against a person for enticing away th
servant of another, the court held that the declara.
tions of the servant made at the time of leaving, and
showing that he left of his own accord, were admis-
sible as evidence. In the course of the opinion
Upham, J., said: “In this instance the servant at
the time of preparation for leaving disclosed causes
for such a design of a character strongly implicating
himself, and tending to negative entirely any suspicion of
intentional misrepresentation of his true motive. He
communicated this design in connection with the
fact of asking advice what course to pursue, and
accompanied his declarations of the motive assigned
with the act of leaving. The declaration then is so
connected with the fact as to give character to it
and the fact carries with it at the same time in th
declaration evidence of the motive.”
In Hunter vs. State, 2 Vroom, 495, the man after
wards murdered, made statements to his son, an
wrote a note to his wife, a few hours before leaving
home, on the night of the murder, to the effect th
he was going to the city of Camden on business, and
that the prisoner was going with him. In this case t
court held that such statements, both oral and wri
ten, were admissible as explanations and preparation
of the act of going from home. In the course of his
opinion, Bersley, C. J., after saying that it was the








71
usual information that a man about leaving home
would communicate for the convenience of his family,
the information of his friends, or the regulation of
his business, makes use of this language, which
seems to have been omitted in the brief of the coun-
sel for the Commonwealth: “At the time it was
given, such declarations could, in the nature of things,
mean harm to no one; he who uttered them was bent
on no expedition of mischief or wrong, and the atti-
tude of affairs at the time entirely explodes the idea that
such utterances were intended to serve any purpose but that
for which they were obviously designed. After quoting,
with approval, the Wharton's definition of res geste,
he proceeds: “This definition obviously embraces the
declarations now challenged, for they were immediate
preparations for the act in question, and were certainly
not produced by the calculated policy of the actor who
ſave utterance to them.” Again, at page, 450, he says:
“It is principally from the foregoing consideration
that I find myself constrained to think that the de-
clarations under discussion, even if they stood in the
case unsupported or unaffected by other circum-
stances, were admissible, on general principles, on
the single ground that they were the natural and in-
artificial concomitants of a probable act, which itself
was a part of the res gestº. In such a status of the
evidence, I should think that the exception to the
principle that rules out hearsay had been carried to its
ºtreme limit, but without transcending such limit.”
In this connection, it must be stated that both coun-
72
sel and Judge Fauntleroy have entirely misappre-
hended the meaning of the word “preparation,” as
used in their quotation from section 753 of Whart.
Cr. Ev. The word is there with reference to prepar.
ation on the part of an accused for an attack, for ex-
ample, as providing himself with a pistol, &c., as the
cases cited in support of that statement in the note
to the text will show.
Now, these are the authorities relied on to sustain
the admission of this letter, and yet it must be appa.
rent to every dispassionate mind that they not only
fail to justify its admission, but by necessary impli.
cation forbid it. Running through all of them may
be seen the same general idea—that is, that such
declarations constitute a part of the res geste only
when they are the natural and undesigned incidents
or concomitants of a particular act, the nature
which it is necessary to inquire into. This idea tha
the declaration must be truthful and not fabricated is
illustrated with great force and clearness by sever
cases in this State. In Hill’s case, 2 Gratt. 574, t
court, in discussing the admissibility of the declara
tions of the deceased, after citing the case of Reg.
Foster, and one from Skinner, said: “All that
necessary, according to these cases, to make the de
claration part of the res geste, is that it should
made recently after receiving the injury and before
he had time to make up a story or devise anythin
for his own advantages. Tested by this rule, the
statement referred to is clearly admissible.”








73
In Kirby vs. Com., 77 Va. 689, Lewis, P., speak-
ing for the court, said: “Here the declarations in
duestion were not only made recently, but probably
within two minutes after the shot was fired. And
this, taken in connection with declarant's condition,
mental and physical, produced by the unexpected,
unprovoked, and, as he supposed, fatal shot through
the head, repels the idea that his declarations were
fabricated. Indeed, under the circumstances dis-
closed by the reord, it is hardly reasonable that they
could have been fabricated, as both the time and
capacity for reflection were wanting.
Whar. Cr. Evid., § 262, the author says: “Res
Westware events speaking for themselves, though the
instinctive words and acts of participants, not the
words and acts of participants when narrating the
events. What is done or said by participants under
immediate spur of a transaction becomes thus part
of the transaction, because it is then the transaction
that thus speaks. In Starkie on Evid., § 87, that
author, speaking of declarations accompanying an
act, says: These, when the nature and quality of an
act are in question, are either to be regarded as part
of the act itself, or as the best and most proximate
evidence of the nature and quality of the act; their
connection with the act either sanctions them as
direct evidence, or constitutes them indirect evi-
dence, from which the real motive of the actor may
be duly estimated. Hence it is that declarations
made by a trader at the time of his departure from

- - 74
his residence or place of business are evidence of
the intention with which he went. His real inten.
tion, in such a case, cannot be inferred otherwise
than from external appearances, from his acts, and
his declarations are collateral indications of the na-
ture of his acts and his intention in doing them.
Without further citation of authority, it seems to
me to be beyond question that neither the state-
ments of the deceased, nor the so-called Curtis letter
were admissible in evidence, especially against the
prisoner, whose lips were sealed. They do not fur.
nish the real motive of her leaving Mrs. Dickenson's
and cannot in any proper sense be said to charac.
terize the act of going. This is not a case where
the fact that the declaration was made, and not its
truth or falsity, is the point in question; it is nothing
more than a tissue of falsehoods, evidently concocted
for the purpose of affording an excuse for her go-
ing to Richmond, and the prisoner should not have
been prejudiced by its admission. To such a case
every principle which excludes hearsay emphatically
applies. The prisioner is not shown, at any stage of
the proceedings of the lower court, to have been
connected with it, or even to have known of it.
The suggestion made in the argument that it was
written by her, sent to him, and by him remailed
back again, seems to me to be nothing but the bold.
est conjecture. Looking at it in the light of the use
that was made of it by counsel after its admission as
evidence, it is impossible to estimate how seriously

75 -
the case of the accused was injured by it. Certainly
its admission was such an error as entitles him to a
reversal of this judgment. Payne's case, 31 Grat.,
855; Smith’s vs. Shoemaker, 17 Wall., 639.
WAS ITSUICIDE OR MURDER 2
This brings me to what I conceive to be the third
and last error committed in the trial–namely, the
refusal of the court to award the prisoner a new trial.
This is a case of purely circumstantial evidence,
and in every such case it is admitted by all the text
writers and all the cases that all the facts and cir-
cumstances must be scanned with the closest scrutiny,
and that if, upon the whole evidence, there be a rea-
sonable doubt either as to whether the deceased came
to her death by criminal violence, or as to who was
the criminal agent, that such doubt must be resolved
in his favor, and that he is entitled to an acquittal.
Now, with this simple statement of the law, and
remembering that the accused cannot be required to
make any disproof of the charge made against him
until the prosecution has established his guilt beyond
reasonable doubt by proof of the crime and criminal
agent, I ask is it proven to the exclusion of every
reasonable doubt that the accused is a murderer?
This, I repeat, is a case of circumstantial evidence,
depending not upon the statement of any eye-witness
of the occurrence, but depending upon mere infer-
ences to be drawn from the facts, few in number,
and, to say the least, not closely connected. -

76
No one who has not read the record or seen the
brief of the State can begin to appreciate the con-
trolling influence which the mere fact that the priso-
ner was the supposed seducer of this girl must haye
exerted over the jury upon the trial of this case.
And the real difficulty in establishing that there is a
fatal defect of proof as to the cause of the death of
the deceased is attributable not so much to any in-
criminatory evidence disclosed in the record, for it is
certainly meagre and inconclusive as to the fact that
criminal intimacy having been once established be:
tween the prisoner and the deceased, the natural im-
pulse of those not conversant with criminal cases is to
leap to the conclusion that the alleged seducer must of
necessity be a murderer, and so it seems to me to be
apparent that the fact that there is no necessary or
inevitable connection between the alleged seductio
and death of the deceased has been overlooked.
must be obvious to the humblest understanding that
the proper function of this court is not to pass upon
the question of the abstract guilt of persons charged
with offences—for that can be seen alone by the eye.
of Omniscience—but to determine whether the legal
guilt of such persons is established.
I have not the time to go into all the details of
evidence in this case in order to develop the train of
events which lead to this poor girl's death, and if |
had, I would doubt the wisdom of doing so, as it
could only result in casting, perhaps, undeserved
suspicion upon the living without furnishing con:

77
clusive evidences of the certainty of my conjectures.
I shall, therefore, only say that I do not feel justified
in saying, in the face of the testimony of the medical
expert, that the medical facts are as consistent with sui-
ºde as a death from violence exerted by another; that it
is not established beyond a doubt that she came to
her death by violence. It is perfectly evident to
my mind that undue importance has been attached
to the mere motive which the prisoner is supposed
to have had to destroy the deceased. Indeed, it
seems to have been made the hinge upon which this
case was made largely to turn in both courts, while
no consideration seems to have been given to the
powerful inducement this unfortunate girl had to
destroy herself, or to her declarations that she was
anxious to die. To my mind the motive she had to
destroy herself was at least equal to any that the
prisoner could have had to make way with her. But
suppose that it be conceded that the death of the
deceased was caused by another, still the evidence
does not even then establish beyond a doubt that the
murderer was the accused. None of the tracks at
the reservoir are shown to have been made by the
prisoner. The only witnesses who testify with much
distinctness to the character of the tracks left by the
male person supposed to have been present at the
time of her death testify, in substance, that the tracks
were those of a person wearing a coarse, “broad-bottom
shoe” or “brogan,” and the prisoner, although his
whereabouts during the whole of the 13th of March
78
are well known, is not shown to have worn such a
shoe. If such had been the case it seems to me that
it would have been easy for the detective, who is
shown to have been so industrious in this case, to
have hunted out the evidence of that fact. The main
and, indeed, the only circumstance which tends to
show that the accused was with the deceased at the
time of her death is the finding (if indeed it was ever
lost) of the key, and this is certainly not inconsistent
with the hypothesis of innocence.
Assuming, what is not positively proven, that it
was his key, it may have been dropped there by the
deceased, to whom he may have loaned it, or, it may
be, that it was the key which one of the witnesses
thinks he saw on her bureau. It is not shown to
have been left by any one in flight, for nobody testi-
fies that such tracks as must inevitably have been
left by a person flying have been found. If I
go to the fullest extent which the evidence tends
positively to establish, and admit that the man seen
with the woman by Dr. Stratton on Reservoir street
on the night of the 13th of March was the accused,
he may yet have left her before she reached the res-
ervoir. The shawl on Dunstan's fence, in my opin-
ion, was never left there by a person who had already
perpetrated the crime of murder. To my mind it
seems improbable that the perpetrator of such a
crime would have been carrying around with him
and distributing thus the evidences of his guilt. It
is certainly far more reasonable to suppose that these



79 -
articles, which seem to have been dropped at differ-
ent places, were left by a woman grazed by trouble
and anxious to seek what she foolishly regarded as
relief in death. -
It is highly probable that this poor girl came to
Richmond, after having first communicated her pur-
pose to the accused, to make her arrangements for
getting rid of the child with which she was preg-
nant, or to make arrangements for lying in ; and
being foiled in her efforts, sought relief in the waters
of the reservoir. Indeed, if we must indulge in conjec-
ture, the mere appearance of a scuffle may have been
partly made by one attempting to withhold the deceased
from drowning herself, as well as by one endeavor-
ing to throw her into the reservoir. In any respect
in which we may contemplate the few ascertained
facts in this case, they are certainly not absolutely
inconsistent with the innocence of the accused of the
crime of murder. I am, therefore, constrained to de-
clare that I think the prisoner is clearly entitled to a
new trial on each of the three grounds which I have
indicated.
If time served I could point to many cases in
which this and other courts have taken a like view
of cases where the evidence was stronger than it is
here. As it is, however, I can only point to Gra-
son's, 6 Gratt., and Smith’s case, in 21 Gratt., and to
remarks of Moncure, P., in Johnson’s case, 29 Gratt.,
in commenting on Smith's case.
CHAPTER Ix.
THE watch key.
In the foregoing chapters I have barely mentioned
the matter of the watch-key. So important was the
bearing of this piece of testimony on the case, that
it deserves an independent chapter. It was the only
thing in the case against me by which the Common-
wealth even pretended to connect me with the scene
of the supposed murder. It has been stated in the
papers that the Governor attached so much importance
to it that he summoned Hermann Joel, the jeweller,
and had it opened. Therefore, as many who may
read these pages may not be familiar with the facts
connected with the introduction of this piece of cir-
cumstantial testimony, I will give some brief account
of it, gleaning the facts from the official record (made
for the Supreme Court of Appeals), of the testimony
in the trial-court. - -
It appears from the testimony that some boys found
a watch-key on Sunday, March 15th, about mid-day,
near the opening in the reservoir fence, and several



81
feet from the broken planks which caused the open-
ing, “a right good way from where the plank had
been pulled off the fence.” A Mr. Hill took this
key to Mr. Wren, the detective, on Monday, 16th of
March, and he took it to Mr. Spott, the jeweller, who
noticed it carefully, and identified the key produced
on the trial as the one brought him by Mr. Wren.
On Tuesday evening, the detective gave it to Mr.
Witt (who had not then turned over the case to Mr.
Meredith), who kept it about a week, and then turned
it over to Justice Richardson. Mr. Witt also testified
as follows: “Probably, a day during the week, I gave
it to Mr. Wren to show in the different jewelry stores
in town, and see if anyone had sold a key like that
recently.” -
The attempt to fasten the ownership of the key
upon me resulted as follows: Mr. John Walker had
seen me wear a key which “ looked very much like ’’
the one in court. Mr. Gatewood knew that I wore
a key but was not willing to swear that “it was just
like” the one shown him; Judge Foster testified
that it had a “general resemblance” to a key he had
seen me wear. Of all the hundreds of people with
whom I was constantly meeting, in the county in
which I lived, these were all that the unflagging zeal
82
of the representatives of the Commonwealth could
find to testify in the matter, and the reader can see
for himself how slender and uncertain that was on
which to deprive a citizen of his life. Hermann
Joel's testimony, on which so much stress was laid,
if read carefully, will show that he was not positive
about any part of it. He was asked by the counsel
for the Commonwealth, “Have you ever seen the
prisoner before ?” And replied, “I believe I did.”
To the question “Did you ever do any work for the
prisoner?” asked by the Commonwealth, he replied
“I could not say positively, but I believe I did.”
the further question, “Does that key, in shape or
appearance, resemble the key you saw tº he answer-
ed, “I would not say very positively, but I believe it is
almost like that key.” If the reader has access to
the official record, and will read the whole mass of
Joel's testimony, it will be seen that the answers
quoted, give the gist of his evidence. It was alto-
gether shadowy and untrustworthy.
Now, over against this put the positive testimony
of my aunt, that she had never seen the key found
at the reservoir before the trial began, and her addi
tional testimony to the effect that she had given m
another key somewhat resembling that; which key








83
was produced in court and identified. The testimony
of my brother was to the same effect. If it be said
that this was the testimony of immediate relatives
interested in my acquittal, let it be remembered that
in a matter of this kind only such persons were likely
to know the facts. But this was far from all. Mr.
James T. Bland, the merchant at Centreville, swore
that he “never saw the prisoner in his store while
Joel was there but once, and then Dr. J. E. Courtney
was with him. Did not see him give any jewelry to
Joel to repair.” -
Dr. J. E. Courtney confirmed Mr. Bland in his
recollection of the visit, and testified further that he
had seen me wear a key “apparently gold, with
hexagonal head, with reddish brown stone in it.”
Being shown the key which my aunt had given me,
he said “this looks like the key; I know the key
he wore had a set in it.” Further on he said : “I
never saw him wearing a key like the one found at
the reservoir.”
Mr. R. H. Spencer testified: “I once saw the
prisoner with a watch-key, and was told by him that
it had been Mr. Tunstall's. I remember it had a
stone in the head of it.” -
Mr. R. L. Savage, a clerk for Bland Brothers at

84
Centreville at the time Joel had his shop in their
store, swore that he never saw me give Joel any
jewelry to repair. . - -
Mr. Monroe Morris, of Little Plymouth, remem-
bered that the key I wore had a set in it, and said
that the key produced in court by my aunt “seemed
to be the same.” –
Now add to all this the testimony of Hunt bºº -
the coroner's jury, that “he saw a key lying on the
bureau in her room exactly like that,” referring to
the key found at the reservoir. There was some
question as to the form in which he expressed him-
self, but Mr. George W. Minter, who copied the
testimony, swore that they were Hunt's exact words,
This is, I think, a fair statement of the substance
of all the testimony bearing directly upon the ques-
tion of my ownership of the key. The fact that I
had on the night of my arrest removed the piece of
pendant chain was used to strengthen the cas
against me, but it was simply what I frequently did.
I will now give as fully and accurately as I can the
truth about the matter, reminding the reader
that this is practically the statement of a dying man.
On my trip to Richmond I did not wear my watch,
- nor my chain, nor my key. I brought with me a

85
watch belonging to a young lady of the community,
to have it repaired for her. This I took to a jeweller
on Ninth street named M'Ginnis, who frequently did
such work for me. I left it with him about 12.30,
Thursday, and called for it about 3 P. M., of the
same day. I wore this watch on my way to Rich-
mond and on my way back, and with the exception
of the few hours it was in the hands of the jeweller
while I was in Richmond. My own watch and
chain and key I left at home in my vest pocket. My
key had the link which connected it with the chain,
greatly worn, and for fear of its breaking I would
frequently take it off and leave it in a watch-pocket
in my aunt's room. I wore the key as a charm or
ornament. It did not fit my watch, and I usually
wound it with steel keys, some of which were found
upon and taken from my person when I was arrested.
On my trip to Tappahannock I wore my watch and
chain and key, and the morning after my return
from Tappahannock I took the key off, for the rea-
son already given, and put it in my aunt's watch-
pocket. When I took the key off I usually also took
off the pendant chain, but on this occasion I did not.
After dressing Wednesday night, to accompany the
officers, I noticed that I did not have the key, and
|
86
determined to take off the chain also, which I did in
the parlor before starting, laying it on the table and
calling my brother's attention to it. I did not have
it at King and Queen Court-house, as Captain Epps
thought. Mr. Robbins, it will be remembered, did
not testify that he saw it there, and Capt. Epps says
that it was after I had been lodged in the cell at the
station house, and he had gone over into his room
and “sat down and got to thinking” that he recol-
lected it. Capt. Epps, however, it is no harm to say,
has a fallible memory. So far as Joel's testimony is
concerned I solemnly declare, and am willing to be
judged by the declaration, that he never did a stroke
of work for me in his life of any sort whatever. I
never had a word or conversation with him except
on one occasion. In January, 1885, I was requested
by a colored man, who knew I was coming to Rich-
mond, to call at Joel's and get his watch, which Joel
had taken to repair and had kept for about twelve
months as I was told. I found him not anxious to
deliver it, and insisted that he should; and he *
it over to me. -
This was the first, last and only time that I ever
exchanged a word with him in my life.




87
Objection was made to the opening of the key,
because we feared foul play.
I learn from the papers that the Governor had the
key opened and found therein some solder and some
file-marks, which Joel said would identify his work.
But all such repairing requires the use of solder, and
generally the pipe is filed so as to make the solder
hold; at least that is the uniform testimony of the
jewellers whom my friends have seen, as they have
reported to me. -
But with all this I have nothing to do. Suffice it
to say that my solemn declaration, in the light of
eternity, is that this watch-key, which has been called
the pivotal evidence in the case, and which seems to
have had so much weight with the Governor in de-
ciding him against Executive interference, was never
mine, and was never seen by me until this trial began.








on Aptºr x.
MY FORMER STATEMENTS.
At the time my trial occurred an accused person
was not allowed, under the law then in force in Vir-
ginia, to testify in his own behalf. I was anxious to
tell the jury my own story, but the privilege was
denied me. This is what an innocent man will
surely want to do. The law is now changed, but the
change came too late to help me. When the petition
for Executive interference was in the hands of the
Governor, the whole case had passed through the
courts, and my statement could not of course help
me as it might have done with the jury. The jury
would have heard the statement of one who was yet
an uncondemned and innocent man, the Governor
could, consistently with the proprieties, and the na-
ture of the case, only read the statement of a *
victed man. - -
Nevertheless my statement of my movements on
the day and night of March 13th, 1885–the day and
night on which I was charged with being in co

89
pany with, and compassing the death of Fannie Lil-
lian Madison—was duly submitted.
This is the best I can do now. I have no new
light on the matter to give the public. Judging
from the newspaper paragraphs there is considerable
anxiety that I shall “confess.” The simple fact is,
I have nothing to confess. I did not see F. L.
Madison during the day and the night of the 13th
of March. That is all the “ confession * I have to
make. I append, therefore, the statement made and
submitted to the Governor. It think it is accurate.
If the reader will select a day in the past week, in
which he transacted a variety of business, and visited
a number of places, and will endeavor to fix the hour
for each visit and each transaction, he will find it not
always an easy thing to do. Of course, if he ex-
pected to be arrested for murder a week afterwards,
he would make a memorandum of his movements,
and frequently consult his watch, and call the atten-
tion of friends and acquaintances to the hours at
which they met him. But an unsuspecting man
would not be able to be absolutely accurate. I say,
therefore, that the following statement represents, as
accurately as I can recall them, my movements on

90
the day and night for which I am required to ac-
count.
STATEMENT OF MY MOVEMENTS IN RICHMOND
DURING THE DAY AND NIGHT OF
MARCH 13, 1885.
I left the Davis House about 9 o'clock in the
morning and went on Main street; saw Mr. H. R.
Pollard, and after about five or ten minutes' talk
with him I went to Morgenstern’s, on Broad street
between Fourth and Fifth streets, to get breakfast
came back to Ninth and Bank streets a little after 10
o'clock (see McGinnis) and went to bankrupt court
office; met a gentleman I did not know, who told
me that the clerk was not in. I went then up to the
State Library as the most convenient place to get a
City Directory to try if I could find the addresses of
two gentlemen (William Wood and R. W. Baker).
who had an interest in a tract of land in my county
that a Mr. Bray wanted to buy, he thinking that they
lived here. Coming out on the steps of the Capitol,
I got in a casual conversation with one of the guards,
who told me of Governor Cameron's losing a horse
a short time before, &c.—this about 11 o’clock; went
from there to Grigg's shoe store, on Eighth and Mai

91
streets, to get a pair of shoes for my aunt (see Hen-
ley); carried the shoes to my room at the Davis
House—got there about 11:30; went to my room;
put the shoes in my satchel; after came to the read-
ing-room; stayed there awhile—wrote a check on
the Planters National Bank for $2 (the amount of
my bill at the Davis House); left about 12 o'clock–
went to the bank and got the money (see Spencer
and al.); went from there to the bankrupt court
again; this time saw the porter, who told me that
the clerk was sick; that he had the office key, but
knew nothing about the papers (see Mr. Pleasants).
I went then to the money-order department in the
post-office (about 12:15 or 12:30), to see could I get a
money order to Aylett’s, Va. Had to wait for two
persons before me to get through; then examined the
books, and found Aylett's was not a money-order
office. As I was leaving the office (between 12:30
and 1 o'clock), I met and spoke to Mr. B. W. Henly.
I went from there to Lumsden & Sons, jewellers, be-
tween Eighth and Ninth streets on Main, to call for
a breast-pin I brought over for Mrs. Dr. J. E. Bland,
and left there to have fixed. Coming back I met a
college-mate, M. B. Harrison, attorney-at-law, about
1 o'clock, near the corner of Eleventh and Main

92
streets; went together into Schoen's (corner Eleventh
and Main), had a glass of mineral water and a smoke.
stayed there nearly half an hour or about, talking
over college days, &c.
Parting there, I went to a restaurant next to the
Dispatch office; there I met a Mr. Lipscomb, of King
William county, in company with Dr. Whiting, of
West Point. There I got dinner; left there between
1:30 and 2 o’clock; went to Dime Museum, where 1
saw Mr. T. P. Bagby. Left there about 5 or 5, at
the close of the performance; went up on Seventh
street, above Broad, to a barber-shop (used to be
Oliver & Robinson's); got a shave.
Coming back, bought a copy of the State on street.
came to Davis House; went in the reading room
read that, also New York papers, there. Went to
my room, brushed my hair, &c. Came down, go
supper, and left there about 8 o’clock. Went up to
Ford’s Hotel to see if Mr. Pollard was there. I
wanted to see him, as he was looking after the same
papers in the bankrupt court that I was. He was
not stopping there. I went to the St. Claire Hotel
to find him, knowing that he had stopped at both of
these hotels while in the Legislature. Not finding
him, I went around to the Dime Museum; got the

93
after the performance had commenced and stayed
until the close, and as he was passing out in the
crowd saw Mr. Bernard Henly with another young
man. I spoke to Mr. Henly, but did not shake
hands, my attention being drawn just then to the
falling of a little child in the crowd.
I went from there to Morgenstern’s; had fried
oysters, &c.; also, a box of fried oysters fixed up for
lunch next morning. Came back to the Davis House
between 11:30 and 12 o'clock; ate an apple with Mr.
Davis; paid my bill, went to bed; was called after 5
next morning; left the hotel for the depot (about
Twenty-fifth and Canal streets) about 6 o'clock;
there met with Captain A. Bagby, Dr. Whiting, and
others, and left the city with them about 7 o'clock.
This is a statement of my movements during the
day and night of the 13th of March, 1885, with the
people that I saw. I am willing to stand on it in
time and eternity, for, believing that at some day, be
it early or be it late, I must stand before the judg-
ment throne of Almighty God, I can say that my
hands are clean and my conscience is clear.
- THOMAS JUDSON CLU v.ERIUS.
I have nothing to add in this connection.

CHAPTER XI.
MY PETITION.
I reproduce here the paper which I submitted to
the Governor, in which I stated my grounds for ex-
pecting Executive elemency. I omit the accompany.
ing affidavits, however, and will simply indicate in a
sentence what they were They can be found in full
in the Richmond Dispatch of December 5th. They
were somewhat as follows: That of Dr. P. Calvin
Johnston, of Richmond, to the effect that he was
fully convinced that Lillian Madison was in his office
between 12 M. and 1 P. M., March 13th, (the time
when the witnesses for the Commonwealth put her
at Bell Isle); those of R. Bell, Jr., John Lawler, F.
E. Carroll, and Daniel Jefferson, to the effect that
Howell, a juror from Alexandria, had said in their
presence, before serving on the jury, in language
unfit for publication, that I ought to be hung; and
those of J. T. Sherwood and Robert W. French, to
the effect that they were of the impression that the

95
jury had either to find a verdict of murder in the
first degree or acquit. -
These affidavits, properly authenticated, were ap-
pended to the following paper: -
PRISONER'S REASONS FOR EXPECTING EXECUTIVE
CLEMENCY. -
To the Hon. Fitzhugh Lee, Governor of Virginia:
Your petitioner, Thomas J. Cluverius, who has
been sentenced to death by the Hustings Court of
the city of Richmond for the alleged killing of F. L.
Madison, respectfully presents this, his personal ap-
peal, to your Excellency for Executive clemency in
his behalf. -
Your petitioner fully appreciates the responsibility
of asking the Executive to interfere with the verdict
of a jury, but he feels relieved of this responsibility
when he is able to present to your Excellency for
such action reasons that would annul their verdict
and grant your petitioner a new trial in any court
where a trial by jury is known, and in the face of
which to execute their verdict would be a blow to
every principle of justice and humanity.
(1.) That your petitioner has not had a fair trial.
From the day that the body of the dead girl was
found in the reservoir the manner in which the pub-
lic mind has been excited by the publishing and cir-
culating of sensational reports is not such a secret as
to need anything from your petitioner to prove. It

96
is known to the world. He may be excused for
quoting from an official paper of this city “that al-
most each household in the city was a nest of zeal-
ous detectives, anxious, ready and striving to furnish
evidence for the conviction of the criminal.”—
[Mayor's veto message, November 14, 1885. In
this condition of the public, when every rumor was
taken as a truth and honest people were getting facts
and fancies—what they knew and what they thought
—so mixed, your petitioner, in justice to himself.
was forced to go to trial at a time when he believed
a “fair and impartial trial”—a guarantee to every
man—was an impossibility. -
Your petitioner has been relieved of what, under
other circumstances, would have been the responsi-
bility of this charge by the published statement of
a member of the jury that tried him : “It is useless
to deny the fact that while there was no attempt di-
rectly made to intimidate the jury, they were un-
questionably unduly influenced.” -
Your petitioner also presents here with affidavit
to prove that one of the jurors that tried him had
formed, and publicly expressed, an opinion against him
before he was summoned as a juror. -
Can it be said that your petitioner has had a fair
trial by such a juror? -
Your petitioner simply states the fact and offers
the proof, feeling that no comment could add to its
weight, or be needed by your Excellency when called
on to protect a citizen of the Commonwealth.

97
(2) Your petitioner has been convicted for a crime
that has not been proven committed.
That the girl’s death was caused by drowning is
not denied. That she was even partially insensible
when she entered the water there is a doubt ex-
pressed by the “perhaps.” Upon this word hangs
the theory of a crime. Should not your petitioner
have the benefit of this doubt The only ground
for the “perhaps” is a “knot or swelling * on her
forehead. (See Dr. Taylor's testimony, rec., p. 60.)
Dr. Taylor washed the mud from her face on the em-
bankment when she was taken from the water after
10 o’clock. He did not then see the “knot,” though
he noticed several “trifling abrasions.” Would he
have failed to have seen it had it been there at that
time? He did not see it until next day. The body
had been “pulled along on the mud” for thirty feet
before taken out of the water. May it not have been
caused by the forehead coming in contact with a
brick or something as the body was “pulled along
on the mud,” and consequently came there after he
had washed the mud from her face? This is more
reasonable than to suppose that it was there and not
seen by this careful expert.
Your petitioner respectfully submits, that the the-
ory of a “scuffle” on the embankment is completely
disproved by her “placid look,” and the condition
of her hair and clothing. The tracks prove that
there had been no scuffle between a man and woman,
for in that case the man’s tracks would have remained

98
and the woman's destroyed. As it was, only the wo.
man's tracks were there, and “two heel-tracks,” ap-
parently a man's. -
The food in her stomach, and the condition of her
body, indicate the hour of her death. By the condi-
tion of her body the hour would be by 4 or 5 o'clock
of the morning of the 14th. As to the food, Dr.
Taylor says: “Add six hours to the time she last par.
took of food, and you would have a very accurate
idea of the hour of her death ( She
was last seen to partake of food at dinner, between
1 and 2 o’clock P. M., the 13th, at the hotel. This
would bring the hour of her death before 8 P. M.
Carefully considering the evidence as to her return-
ing to the hotel after leaving at about 6 P. M., there
is nothing to prove that this was not about the hour.
If she ate after her dinner, it was not at the hotel,
but after she left there, between 6 and 7 P.M.–how
long after is not known—this would bring the hour
of her death after 12 o'clock that night. Take either
hour as the time, and the evidence proved your peti-
tioner at his hotel, nearly two miles from the reser-
voir. To say the least, the Commonwealth’s testi-
mony leaves the hour of her death in doubt.
Dr. Taylor stated, after the post-mortem examina-
tion, and when there was no excitement about the
case, “that it was a case of suicide and not of vio-
lence.” And at the trial the medical facts are not
inconsistent with the theory of suicide—they do not
prove it, either for or against it. As to the motive

99
to take her life, your petitioner will content himself
with simply but emphatically denying the motive
charged to him without proof. To go into the details
of this charge would cast reflections on the dead,
which your petitioner has no desire to do, and only
result in casting suspicions upon the º without
furnishing conclusive evidence. None had stronger
reasons for taking her life than she. Those reasons
are too apparent to need being mentioned here.
They all served to make the seeming quietness and
forgetfulness of death preferable. She gave expres-
sion to this feeling to the conductor on the train com-
ing to Richmond, showing that her mind was in the
channel favorable to suicide. It may be presumed
that her mind was in this condition when she reached
the Dunstan’s, on Reservoir street, the only friends
she is known to have had in that part of the city.
It is not for your petitioner to dig down into the
grave of the dead girl and gather there the knowl-
edge of her movements, which are buried with her
dust; but the supposition is a reasonable one, that
leaving the red shawl upon their fence, she goes down
that street until she reaches the reservoir, only a few
hundred yards beyond, and there, with only God’s
eye to pity, she buried all her shame and faults be-
neath those waters, knowing that the world’s cold
frowns would then be mellowed into tears of pity
and forgiveness.
One of the judges of the Court of Appeals, after
admitting all of the evidence of the Commonwealth
º

100
to be true, and after rejecting the evidence of your
petitioner, declares that the Commonwealth has
never proven that a crime has been committed.
Your petitioner asks the careful consideration of this
opinion, together with all of his evidence in his case.
He respectfully submits that it would be a physical
impossibility for a person of his size and strength
—undeveloped by hard labor—to take this woman,
as heavy as or perhaps heavier than himself, and
raised her, in a senseless, limber condition, from the
ground and thrown her over that fence, clear of the
sloping embankment, into the water beyond. She
certainly could not have been stood on her feet inside
of the fence, and then thrown face foremost into the
water, as the Commonwealth claims, for it is also
claimed that she was senseless and limber.
To show how the “presumption of innocence
operated to protect your petitioner, he presents with
this petition a published interview, that has not
denied, with one of the jurors, who states that the
most damaging thing against your petitioner was
his not being able to account for himself during the
night of the 13th. This, with a refusal of his
counsel to have a key opened:
W. H. P. Berkley (dry-goods clerk at Lansburg
& Brother's, on Seventh street, Washington,) was
next seen and asked:
Have you signed Cluverius's petition 7 -
I have not, he answered.
101
Have you been asked
I have not.
Would you sign the petition asking the Governor
to pardon him : -
I would not.
Would you for commutation to imprisonment in
the State prison for life?
Not expecting to be interviewed I consider that
question rather premature. It is a thing that re-
quires some thought before answering. I would not
like to do so without some additional facts were
made known which were not brought out by the de-
fence during the trial. The most damaging thing .
against Cluverius—nay, I might say his chain of
evidence was broken by his not being able to account
for himself during the night of the 13th, and the re-
fusal of his counsel to have the key opened and ex-
amined by Joel.-Dispatch, November 18, 1886.
Your petitioner was almost a stranger in this city.
If the life and liberty of a man is made to depend
upon his ability to prove that he was at a certain
place at a certain time, a stranger would be in great
peril in visiting any city and going about alone. He
may during the day and night meet persons, and the
chances are against him that they will remember the
time or place of the casual meeting. Your petitioner
could give no account of himself because at that
time his lips were sealed. He can now testify as any
other witness. This great and important change in

102
the laws of this State has been made since your peti-
tioner was tried. An appeal to your Excellency being
his only redress, your petitioner has prepared a state
ment of his movements during the day and night of
the 13th of March, with the names of people that he
saw, which he makes a part of this petition, and
prays that he may be given the benefit of it in de-
ciding this his final appeal for his life, in a conviction
founded largely on his enforced silence. -
As to the key, your petitioner asserted, and asserts
now, that he never saw that key until produced
against him in court. Your petitioner also knew
that the witness had never fixed a key for him. Was
it, therefore, surprising that his counsel objected to
the witness opening the key, not knowing whether
his motives were honest or that he only wanted in
this way to strengthen his testimony? No person
would have been more anxious at any time to have
that key opened than your petitioner could he know
that the witness honestly expected to find therein
something to help him decide whether he did fix the
key or not. -
Of those who associated with your petitioner
almost daily, not one could be found who had seen
him with that key. On the other hand, a witness for
the Commonwealth proved that it was in the girl's
room the morning of the 13th. Your petitioner pro-
duced his key, sworn to by the members of his fam-
ily—one of whom gave it to him—and by friends
that had seen him with it. Upon this key they rest












103
the charge that your petitioner was at the reservoir.
The record of the evidence has been furnished
your Excellency. The conflicting and contradictory
statements, seen therein, of the witnesses for the
Commonwealth are too plain to need comment.
Your petitioner only asks a careful reading of the
record.
(3) That members of the jury have since the trial
stated that they were acting under a misunderstand-
ing of the law, and a part, at least, declaring that the
evidence did not justify the verdict, and that the ver-
dict could never have been recorded had the law
been understood.
Can anything add to the simple statement of the
facts? Can it be that any one could desire the exe-
cution of a verdict of a jury when a member of that
jury not only admits that they were unduly influ-
enced, but declares that the evidence did not justify the
verdict 2 -
In suits at law when property is involved courts of
equity would interfere to prevent the execution of a
verdict rendered under like circumstances.
In criminal trials the law leaves their correction in
the hands of your Excellency, to whom your peti-
tioner appeals.
In the face of the opinion of one of the judges of
the Court of Appeals that a crime had never been
proven, and the coroner's opinion as an expert and
the doubts that are in the case.
In face of the fact that your petitioner has been
104
-
tried by a jury one at least of whom had formed and
expressed an opinion against him before hearing a
word of evidence in court, and that one other, at
least, of the jury has declared that they were “un-
duly influenced,” and that the evidence of the Com-
monwealth did not justify the verdict. Three of the
jurors acted under a misunderstanding of the law.
Can justice demand the execution of their verdict?
Your petitioner presents to your Excellency this
his petition, and prays that Executive clemency may
be granted him.
Respectfully submitted.
THOMAs J. CLU v.ERIUs.
I close this chapter with the simple-hearted but
ineffective appeal of my broken and crushed father
and mother.
A PATHETIC APPEAL FROM PRISONER'S MOTHER
AND FATHER.
His Eccellency Fitzhugh Lee, Governor of Virginia
This appeal is made to your excellency in behalf
of our dear son, Thomas J. Cluverius, one who has
always been the pride of a loving father's and
mother's heart. No one can ever imagine the an-
guish of our bosoms when making this appeal to
your Excellency for a life so dear; one who has been
always looked upon to comfort and cheer us in now
our last years. How can we express ourselves to


105
your Excellency, who has now to decide whether our
boy is to live or die? Can we beg your Excellency
to save his life? If your Excellency believe him
guilty, punish him other than death, that he may
live to see the day when the world will know he is
innocent—for some day right will be known—and
our dear son will have paid the debt for an alleged
crime (if one) deserved by another.
He is not guilty. No, never did he the crime of
which he is charged. There are some saying, “Let
him die.” They forget that every word uttered
against drives a dagger deeper into the parents'
heart. Age is ever upon us, and ill health has ever
forbid our visiting our dear son. How can we bid
him farewell as the victim of another’s deed? We
pray your Excellency to save his life; do not allow
it to be taken. Think of the great mystery around
this sad case, and the bleeding bosoms of loving
parents, brother, and aunt, along with many others,
before your Excellency says that he must die. Wrongs
that have been practiced against him are fast coming
to light, and after it is too late those who are crying
for his life will see their error. No one knows that
he is guilty. It is merely circumstantial evidence
that even causes a belief. Will it do for life, which
is so precious to us all, to be taken on such grounds?
We cannot say more. Your Excellency is a parent,
and can imagine our sufferings at this time. Leav-
ing you to decide the fate of our dear son, we beg you
to save his life. Your Excellency, whom we have the
106
honor to serve, do not take his life. Praying that
you will hear a father's and mother's plea, we sub-
scribe ourselves. -
Your humble servants,
B. W. CLUVERIUs,
MARY A. CLUVERIUS.
CHAPTER XII.
My prison LIFE.
I was brought to Richmond on Thursday, the 19th
of March, 1885, and lodged in a cell at the Third
station house, corner of Brooke Avenue and Mar-
shall streets. On the next morning I was taken to
the Police Court. The case was continued, on the
Commonwealth’s motion, until the 30th of March,
and I was remanded to the city jail.
Since the 20th of March, 1885, I have been in
confinement here. During the progress of the trial
I was taken every day, in a private ºriage. in the
custody of Mr. Allen usually, to the Hustings Court,
and after adjournment brought back. From the
20th of March, 1885, to the 6th of May, 1886, I was
lodged in a cell on the first floor; after that time I
was brought to this cell where this is written.










107
The reader is not supposed to be greatly interested
in a description of the squalor and wretchedness of
prison life. My present cell is a moderately sized
room with two windows opening to the southwest,
and from which I can see the sun descend behind
the houses of the happy citizens of Richmond. The
view is by no means enchanting which is thus fur-
nished, but let the reader remember that it is all that
the writer has had for months, and he can then un-
derstand why he is grateful for even the narrow and
uninviting view of the sun and sky.
When I was lodged in the cell on the first floor Icon-
stantly saw the prisoners, with which the jail is almost
always filled. Of course every shade of human na-
ture was there represented—that is, every evil shade.
It was a new and horrible experience for me.
Whatever the jury may have believed that con-
victed me, and whatever the public may chance to
believe as to my innocence or guilt, I had noth-
ing in common with the criminals with whom I came
in contact. I had been gently raised, and I recoiled
instinctively from the depravity which I was forced
to witness. And yet I wish to say that depraved
and unmannered as they were, they were never un-


108
kind nor unfeeling, and often showed a sort of rude
sympathy with me in my peril and anxiety.
Many may sneer at the suggestion as coming from
one who is himself under sentence of death, but
sneers cannot harm me now, and I make it. Those
who are vituous and fortunate and happy might lend
their powerful influence to the task, often thankless
no doubt, of rescuing these wretched people from
their wretchedness. When released from jail, work—
employment of some sort—might possibly be found
them, and the temptation to renew their crimes di-
minished at any rate if not removed.
But I must return to my own story. I did not
talk to reporters, because from the first my counsel
forbade it. And let me say in passing, that while
I do not think these gentlemen were actuated by any
personal dislike, yet I am sure that in their natural
desire for sensational matter they did my cause great
injury. I think this is put very mildly. The jury
that found me guilty—some of them—say that they
were largely influenced by the state of public senti-
ment at the time, and if the reader knows anything
of the history of the case, he need not be told that
the newspaper accounts did much to create and fos-
ter the then existing state of public sentiment. I

- 109
cheerfully acquit the writers of these accounts of
any deliberate intention to persecute me. I think
that recently they have even been anxious to do any-
thing for my comfort within their power. But it is
too late now. Nevertheless I am in no mood for
useless resentments.
During the period of my incarceration every lib-
erty, consistent with my position, has been freely
granted me, and every personal kindness shown me
by those who had me in their keeping. Mr. N. M.
Lee was City Sergeant when I was first lodged in
jail. At his hands, and those of his subordinates, I
received nothing but uniform courtesy. During his
term Mr. Ro. Kerse was jailer, and nothing that he
could properly allow was ever denied me. I can say
the same thing of Mr. . C. Smith, the present City
Sergeant, who succeeded Mr. Lee last July, and his
subordinates. They have been considerate of me to
a degree I fancy somewhat unusual with officers of
this kind. I cannot, of course, mention them all,
and the reader would probably not know them if I
were to do so. I do feel, however, like setting down
some expression of my gratitude, for their kindness,
to Mr. Smith, Mr. Macon, Mr. Allen, Mr. Johnson,
Mr. Dunn, Mr. Conners and Mr. Elam, and others

110
whom I need not name. They have shown how
officials can discharge their duty, and yet be obliging
and courteous.
Here in this jail my counsel have met me for con-
sultation; here my kindred and friends have come
to show their love and sympathy; here I have ex-
perienced all the lonliness and anxiety consequent
upon so prolonged a trial; hither I came from the
excitement of a crowded court-room, where I had
heard the adverse verdict of the jury; here I have
borne, one after another, the various reverses that
have overtaken me, and here I received the last blow
to all my hope. Yet, in spite of all its wretchedness,
in spite of all its blasted hopes, in spite of all its
squalid meanness, my prison life has not been with-
out its brighter side. It has had its lights as well as
its shadows, though now, indeed, its lights are fading
out, and its shadows settling down about me.
Thoughtfal friends have sent me books and papers,
and they have solaced me. No restriction has been
put upon me in the matter of reading, and I have
found my previous tastes in this direction an un-
speakable comfort and relief. I have been allowed
to correspond with absent friends, subject to the in-
spection of the officers. My friends, who could do

111
so, have often come and brightened the dreariness of
my confinement by their coming. Visitors, such as
I chose to see, have always been freely admitted.
Some of these came, of course, purely out of vulgar
curiosity, but many have come to assure me of their
belief in my innocence. My meals have been fur-
nished regularly by myself. In short, no personal
comfort has been denied me, which could have been
granted one in my situation. -
But all this, everybody understands, could not take
away the bitterness, the unspeakable humiliation of
such a life. To all who have helped to lessen this
bitterness, whether officials, friends from without, or
even the poor prisoners within, I am thankful. I
have prized very highly in my deplorable experience
every mark of kindness I have received.
I cannot close without grateful mention of my
spiritual adviser, Rev. Dr. Hatcher. His relation to
me has been of that delicate sort that forbids ex-
tended comment. I can only say that he has been
thouroughly faithful and kind.
And now my story is ended.
The preparation of it has in many respects been
a pleasant task. Memories of earlier and happier
days have been revived, and here in my prison cell,
112
with my doom coming swiftly on, I have partly lived
over again the days when all was bright.
In some respects, also, it has been of necessity a
painful task. I have had to review a period of storm
and trial which came upon me suddenly and unex-
pectedly, a time of intense and prolonged anxiety to
close shortly in a death of deepest humiliation. The
reader will therefore be indulgent for any faults it
may and doubtless will present. I have been un-
willing to die and make no sign in vindication of my
innocence of the dreadful crime, for the supposed
perpetration of which I am to die.
For the statements and sentiments of this publica-
tion and for the propriety of giving it to the public
at all, I, and I alone, am responsible.
THOMAS J. CLUVERIUS.


A / / / AV /) / X.
[In this second edition of “The Life, Trial and
Conviction of T. J. Cluverius,” the publisher has
thought it best to append some sketch of the final
act in the tragedy, and some extracts from the ad-
mirable interview furnished the Richmond Dispatch
by Rev. W. E. Hatcher, D. D., who was his spiritual
counsellor. It is hoped that this appendix, while not
possessing the mournful interest which attaches to
the utterances of the unfortunate young man, may
make the book much more desirable.]
On Friday, January 14th, 1887, nearly two years
after the arrest, at eight minutes past one o’clock,
Thomas J. Cluverius was executed. -
SCENE OF THE EXECUTION,
The Richmond jail is a vile and unsightly struc-
ture, situated in a bottom, and surrounded by several
hills. In the eastern corridor of this structure the
execution took place. The day was as balmy as
spring. Great crowds assembled early, along the
hills, on the house-tops, in the trees, and upon the
telegraph poles, in order that they might catch a
glimpse of the awful sight. It was not creditable to

114
our common humanity that there should have been
such a crowd with such a horribly vicious and dis-
gusting curiosity. One would think that whether
they believed in the prisoner's innocence or guilt the
sight would have been awful in the extreme to every
good man. But it was not so with this mob. Whe-
ther the poor unfortunate man was guilty or not, they
were guilty—for many of them had the murderer's
hate in their hearts. -
Still, there they stood, and when the supreme mo-
ment came, and the prisoner, on his way to the fatal
spot came in sight, there arose a foul, ferocious yell,
showing that there were human tigers among the
Let it be recorded, in justice to the people of
mond, that not many of her representative people
were in that mob, and they it is to be hoped had no
part in this shameful yell.
Christian people of character and thoughtfulnes
were praying for the unfortunate man. Hearts that
were kind and good stood still in that awful moment,
and breathlessly awaited the sorrowful tidings.
Meanwhile, in the interior of the jail, there were
assembled about two hundred and fifty persons—
among these were some friends and sympathizers,
the officers of the jail, newspaper reporters, the

115
twelve citizens required by law to be present, and
others drawn by curiosity. Their demeanor toward
the prisoner was perfectly quiet and respectful.
THE PRISONER–HOW HE MET HIS DEATH.
On the night before the execution Capt. Frank
Cunningham, who had often visited the prisoner's
cell and cheered him with song, spent a long time
with him, and sang a number of hymns for him.
Among them were, “How Firm a Foundation, ye
Saints of the Lord,” “Jesus is Calling for Thee,”
“Rock of Ages, Cleft for Me,” “Home, Sweet Home,”
and “Home of the Soul.” These hymns were greatly
enjoyed by the poor, fated man.
Dr. Hatcher, his chosen religious counsellor, was
with him during the two hours prior to the execu-
tion. The prisoner retained all the while his perfect
calmness and composure. About fifteen minutes be-
fore the appointed time for the execution Mr. Beverly
Crump, one of the prisoner's counsel, came from the
Governor with the news of his refusal to interfere.
The prisoner heard the announcement with compo-
sure, and soon afterwards began to make ready for
the execution. After he was dressed he sent for Dr.
Hatcher, who had retired meanwhile to the corridor,
and asked him to pray with him, which he did.
-
116
Then the solemn procession filed out of the cell and
along the hall; then down the steps into the open
court and along the eastern corridor to the further
extremity, where the scaffold had been erected.
Nothing could surpass the perfect self-control of this
wonderful man. There was a slight flush on his
face, but not a muscle moved, and he walked without
faltering straight up the scaffold steps and took his
stand. He had previously said to his friends that if
the worst came he would have no speech to make
He said that he had made his statements (referring
to the preparation of this book), and that he would
not gratify the greed for sensation in such a crowd
as would naturally assemble on such an occasion by
speaking. -
So when the death warrant had been read by
Sergeant Smith, he was asked by the officer if he
had anything to say. He replied in a low but dis-
tinct voice, “No, I do not wish to say anything.
“Not a word?” asked the Sergeant. “No, sir,” h
replied. - - -
Dr. Hatcher then prayed fervently, and at the con
clusion the prisoner very quietly said to him, “Tell
them, Doctor, for me, that I come to my death with
out one hard feeling in my heart toward any one in
-







117
the world.” The Doctor made the announcement as
requested, and then took hold of the pinioned hand
of the prisoner and said, “Good-bye.” “Good-bye,
Doctor,” said the prisoner, in the same low, distinct
voice, “please try to comfort them at home, and give
them my love.” These were his last words.
We mercifully spare the reader the details of what
followed.
DR HATCHER'S INTERVIEW.
On Saturday morning, the day after the execution,
an interview with Rev. William E. Hatcher, D. D.,
of Richmond, the spiritual adviser of Mr. Cluverius,
was published in the Richmond Dispatch. The pub-
lisher regrets that he cannot give this interview in
full, but the limited space at his command makes it
necessary to abridge it. To those who know the
Doctor it is unnecessary to say that he is a wise, dis-
criminating and thoughtful man, free from every
trace of gush or sentimentalism. We submit these
extracts without further comment, except such as
shall be necessary to properly connect and explain
them. - -
The Doctor answers the inquiries of the reporter
as to how he came to be the spiritual adviser of Clu-
verius, and what part he took in presenting the pe-

118 -
tition for reprieve, and then occur the following
questions and answers:
THE BOOK. -
Reporter: Did you encourage him to prepare his
book? -
Dr. Hatcher: I cannot say that I did. I begged
him not to prepare it if it could in any possible way
interfere with the infinitely more important matter of
his preparation for meeting God. He said that he
put the interests of his soul above all else, but that he
had two reasons for writing it. He knew that other
accounts would be written, and he preferred that
those who were interested in his history might know
the real facts. Beside, he was anxious, if possible,
that with the profits arising from the sale of the
book he might in some degree compensate those who
had been kind to him in his misfortunes.
Reporter: Did you have anything to do with the
preparation of the book?
Dr. Hatcher: I did. There were two things for
which I had some responsibility. It was at my sug
gestion that he selected a minister to edit and shap
up his manuscripts. This I did because I knew that
he would need an assistant who would necessarily
have to spend many hours in the cell with him. To
me it seemed extremely important that the man who
was to do this work should be a devout Christian, and
in full sympathy with the quite different work which
I was trying to do for the prisoner. I also consented

119
that if the manuscript was sent to me I would ren-
der such assistance as I could in the way of literary
criticism. That I should have wished for other rea-
sons to read these papers while the prisoner was yet
alive, will be too evident to the public to render any
explanation necessary. Possibly I ought to add that
this minister and myself did with unsparing faithful-
ness again and again urge him not to put one word
in that book that he would not be willing to meet
when he should come to stand in the clear light of
eternity before the bar of God. The statements of
that book purporting to be his I fully believe to be
his, originally and absolutely, and through those
statements, in no small degree, I sought to find ac-
cess to the deepest secrets of his soul. After the
story was written, and when it was about to pass be-
yond his reach, I called him to pause and consider
whether he could commit it to the public, and as a
dying man assume the full responsibility for all its
statements. This he did without one quiver in his
voice or one tremor in any muscle of his face.
Then follow some questions and answers as to the
nature of the interviews which he held with the pris-
oner, and as to the religious instruction given him
on the duty of confession of sin, in the event of his
guilt. It is to be regretted that space does not allow
the publication of this, but it must suffice to say that
the instruction was painstaking and unsparing. In
120
order that the prisoner's family may be put in their
true attitude before the public on this question, the
following extracts are given: -
Reporter: Was that all?
Dr. Hatcher: I am glad you asked me. It affords
me an opportunity of making another statement
which the public ought to have. The same day on
which I had this interview with the prisoner, I sought
a conference with a representative of his family, and
I now give you the substance of what I said:
“I am the spiritual adviser of your kinsman, who
is condemned to death. Whether he is innocent or
guilty I know not. If he is innocent, then I have
nothing to say except to express a sympathy none
the less profound because unavailing. But, if he is
guilty, then I wish the family to know that I main-
tain that it is his duty to confess the crime, and that
I fully intend to urge it upon him. Now I wish t
know the attitude that the family will assume in this
matter. It will not be without its advantages t
them for him to die with a denial upon his lips. It
may help their reputation, but it will be at the ex
pense of his soul. Am I to have the thorough sup-
port of the family in my attempt to lead him to a
confession, or will they get in my way?”
This, you will admit, was severe and painful talk,
to me, at least. -
Reporter: You were certainly cutting to the core
of the question. Did you ever get any reply?







121
Dr. Hatcher: Yes; and very promptly. Here it
is: “We believe that Tommie is innocent. We
have not one doubt on that question. Not one of us
believes that he is a murderer. And yet we do not
know. But on one point we are all agreed—if he is
ſuilty in whole or in part we want him to confess it, and
we ask you to deal faithfully with him. As for our
reputation, let that perish, but let his soul be saved.”
Reporter: Wasn’t that satisfactory to you? Did
that seem to be the course pursued by the family to
the last 7 - -
Dr. Hatcher: I could not have asked more, and
I have no reason to suspect that any pressure was
brought to bear upon him from any direction to pre-
vent a confession.
Reporter: Did you ever tell Cluverius of this in-
terview with his family?
Dr. Hatcher: Of course I did. That was my ob-
ject at first. I wanted all the support that I could
get in dealing with him.
ASSERTS HIS INNOCENCE AGAIN.
Reporter: What did the prisoner say to all this?
Dr. Hatcher. He said that he appreciated, my situ-
ation, and that he would not blame me even if I
were to express the conviction of his guilt, but with
a quiet, and I think I may say with an unblenched
face, he declared that he was not guilty of the crime
for which he was condemned to die. I told him that
iſ that was so I rejoiced in his innocence, but urged



122
him again to think well and to say nothing that he
would have to unsay when he stood on the scaffold.
I then told him that I had done my duty. I had ex-
pounded to him the nature of confession, and im-
pressed upon him so far as I could what was his dut
in the event of his guilt, but that I could not read the
secrets of his soul. As he so firmly asserted his inno-
cence I would treat him as an innocent man. This I
did, though quite often in my anxiety to be faithful I
would lead him over the same ground, but always
with the same result, and this continued to the last.
Reporter: Did you offer to receive his confession
and keep it secret? - - -
Dr. Hatcher: I never did. I told him that if he
had any statements to make to me which he pre-
ferred should not be made public until the day of
his execution that I would keep them. This I did
because I had no doubt at the time that he would
be executed, and was conscientiously anxious to in-
vite and encourage the confession if he had any to
make. That any person should on this account ºn
pect that I would have held such a confession as a
secret even when I knew that there were efforts on
foot to save him from death was to me an infinite
surprise. That would have made me a practical en-
emy of justice. No man shall commit to me his
lawless secrets with the pledge on my part that I will
keep them. I could not allow this while holding to
the doctrines of Baptists.
The following extracts give the Doctor's opinio

123
of him. While he modestly disclaims extraordinary
talent for judging men, his friends regard him as a
fine judge of human nature. -
THE PRISONER'S BEARING.
Reporter: You were often with Cluverius. How
id he impress you? Was he secretive or inaccessible?
Dr. Hatcher: At first I had a preponderating
º of his guilt and watched him as closely as
could. Sometimes I fancied there was a crafty,
far-off, vacant look about him; but gradually it dis-
appeared. His talk with me became free and cordial,
and in my later interviews he was open, simple, and
natural. -
Reporter: They say he was stolid and unfeeling.
Is that so?
Dr. Hatcher: It was not so. He was not noisy
or effervescent, but he was notably responsive to out-
ward influences. He was not emotional, but he was
not without feeling. He did not often weep, though
again and again I saw him in tears. There was not
a touch of frivolity in his manner, but on no human
face have I ever seen a more real or contagious laugh
than on his. -
Reporter: Did he strike you sometimes, Doctor,
as a man who was playing a part?
Dr. Hatcher: He did not. His movements were
bright, quick, and easy. I talked with him at one
time and another about almost every phase of his
trial and his prison life. I asked him many ques-

124
tions, and some of them very searching, but I never
saw him halt, shuffle, or hesitate, and in all my talks
with him I never knew him to contradict himself.
His consistency was wonderful, and if he was an
actor his art was transcendent.
FORMING JUDGMENT.
Reporter. Much has been said about his impu-
rity and hypocrisy. .
Dr. Hatcher: I am not his defender, and do not
claim to be an extraordinary reader of character.
But I saw him in his saddest and frankest moments;
saw him many, many times, but in the grace of his
manner, the purity of his speech, and the unstudied
courtesies of his bearing he was well-nigh faultless,
If since the day of his arrest he was ever guilty of an
unchaste word, an unmanly act, or a leering, indecent
look, I have not heard of it. In his prison his de-
portment not only commanded respect, but to a large
extent disarmed prejudice.
Reporter: Was the effect of your association with
him to increase or diminish your suspicion of his
guilt? -
Dr. Hatcher: I am not very impressible, and men
have to be quite magnetic te take possession of me.
I travelled slowly in forming my judgment of Clu-
verius, but I must say that while I never expressed
any opinion one way or the other, I found myself
gradually drifting to the conviction that Cluverius
was not a murderer.

125
- SOLEMNITY OF DEATH.
Reporter: Did he seem to be afraid to die? -
Dr. Hatcher: He did not court death by any means.
He said that the love of life was instinctive, and that
he realized the solemnity of death. But what struck
me all the time about him was his absolutely terrible
desire to live. It was the master passion in its wild-
ºst and fiercest form. Not that he ever exhibited.
any terror about death, but he shrank with horror
from the shame and wrong of a felon’s death. He
fought for time, and it seemed absolutely impossible
for him to abandon the hope that he might live till
the day of his vindication should come. He said
that his downfall would involve others whose happi-
ness and honor outweighed with him the love of life.
Repºr: How did he appear to feel about his family?
Dr. Hatcher: He never broached the subject of
death, or rarely, at least, without saying that he la-
mented his fate far more on account of others than
on his own. The day Governor Lee refused to modify
the death-sentence I went to see him. I said: “Well,
it is bad, and I am very sorry for you.” “Yes,” said
he, “it is bad, and I am sorry too—sorry for myself,
but far more for others whose hearts will be broken
by the result.” Much has been said about the fidelity
and devotion of his kindred, but nothing touched me
so much as his brooding solicitude for his mother
and his aunt. He dreaded the effect of his death
upon them more than for himself. He said that for
some time his mind had been at rest so far as the
future was concerned.

126
Everybody is of course interested in the following
account of the last sad hours. We cannot add any-
thing to the graphic simplicity with which the story
is told by this faithful minister, and so we print it
unabridged. . - -
Reporter: Did he make any confession or give
any hint of it? -
Dr. Hatcher: Not one word, and nothing occurred
which suggested to me that he was struggling to
keep back any secret. When the news came that
the Governor would not interfere I was left alone
with him in the cell, and as soon as the door was shut
we knelt in prayer. He arose calmly and talked
freely as to his end. I told him that all earthly hope
was dead, and that death was at hand. I told him
that was the last moment when we could be together
alone, and if there was anything that he had to say
there must be no delay. He said that there was no-
thing. He had made his statement and no motive
for changing it. -
Reporter: Why did you pray with him just be:
fore he left the cell for the scaffold :
Dr. Hatcher: Because he sent into the hall for
me and asked me to do it. We had already prayed
together twice before within an hour. He always
seemed anxious for me to pray for him when I went
to see him, and he told me in our last interview that
my visits had brought a measure of comfort and joy
to him which he knew not how to express. I did
nothing, of course, but what any minister of Christ

127
would gladly have done for him; but his tender and
affectionate bearing, and especially his simple and
unfeigned gratitude, would have amply compensated
e even if I had done far more. -
"... Did he request you to make the state-
ment that you made for him on the scaffold, before
you reached the scaffold?
Dr. Hatcher: He did not. I am sure that it was
unpremeditated, as he told me a few minutes before
that he would have nothing to say.
Reporter: What was the exact statement?
Dr. Hatcher: It was this: “Please say for me,
Doctor, that I come to my death without one hard
feeling in my heart toward any one in the world.”
I simply repeated as nearly as I could what he said.
Reporter: When you took leave of him he said
something to you which the reporters could not
catch. Do you object to revealing it?
Dr. Hatcher: Not at all. As I took him by the
hand he said in a low but distinct voice: “Good-
bye, Doctor; I am very much obliged to you. Please
try to comfort them at home, and give them my
love.” That ended the matter with me, and Ser-
geant Smith was kind enough to furnish me an es-
cort and enable me to leave the place before the last
sad act.
This properly concludes the appendix. It was
hoped that the death which sealed the lips of Thos.
J. Cluverius would have stayed the hand and hushed
128
the voice of his persecutors. If we grant that he was
guilty—a thing never yet satisfactorily proved to the
public—he has fully settled his account with the law,
and is fairly entitled to rest. But the great hus
which has fallen upon the public since his execution,
is rudely broken by renewed attempts to add to its
shame. Those who said he was guilty, and pºliº
with arrogant confidence that he would confirm the
judicial verdict by a confession, are now indignant
because he died proclaiming his innocence. They
are anxious to find in his bearing on the day of his
death some sign of reckless and defiant insensibility.
It is even proclaimed in the public press that Gov-
ernor Lee had proofs of his guilt, unknown to the
public. Whether this is true or not an anxious pub-
lic is left to doubt. There may have been fitting ru-
mors and uncertified assertions which may have gone
to the Governor’s ear, but as a fact there was no new
testimony. The case stands on the old ground, and
all that is left to the friends of the deceased is to
trust to the future for his vindication. For this he
hoped, but died without its realization.
The strange and awful fate of this young man has
excited a profound and wide-spread interest. He told
his own story in a simple and unvarnished way, and
those concerned in the preparation of this appendix
have sought to avoid everything that might minister
to a morbid taste. How far they have succeeded is
left for decision to a thoughtful and discriminating
public, THE PUBLISHER.







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