THE
T IR. I. A. L.
or
HENRY JOSEPH AND AMOS OTIS,
For THE
MIU R. D. E. R.
J AM E S C R O S BY,
CAPTAIN OF THE BRIG JUNIPER, ON THE HIGH SEAS,
-N THE
CIRCUIT COURT OF THE UNITED STATES,
disºrct of MASSACHUSETTS, HOLDEN AT BOSTON...... oCTOBER TERM, 1834.
B O S TO Nº.
PUBLISHED BY L. I. G. H. T. & HORT ON,
1 & 3 Cornhill.
1834.




Entered, according to Act of Congress, in the year 1834,
By Light & Horton,
In the Clerk’s Office of the District Court of Massachusetts.




Circuit Cottet of tiſt ºtittº Sºtattº.
FIRST CIRCUIT.
DISTRICT OF MASSACHUSETTS, OCTOBER TERM, 1834.
The UNITED STATEs versus HENRY Joseph, and AMos Otis.
ARRAIGNMENT.
On the 2d of September, 1834, HENRY Joseph, (a colored man,) and
Amos Otis, were apprehended on board the Brig Juniper, in the port of
Boston, within the District of Massachusetts, by the authority of the
United States. On the 20th of October, the Grand Inquest for said District
came in and returned to the Court a Bill of Indictment against the prison-
ers aforesaid, for the murder of JAMEs 3. Captain of the Brig Juni-
per, on the high seas. On motion of ANDREw DUNIAP, Esq., United States
Attorney for the District, the prisoners were brought in and placed at
the bar; and upon another motion of the District Attorney, on a sub-
sequent day, that the prisoners should be called upon to plead to the
charges contained in the Indictment aforesaid, they having been fur-
nished with copies according to law, the Clerk read the Indictment in
which the prisoners were charged with the murder aforesaid. The pris-
oners severally pleaded not guilty to the charge contained in said In-
dictment, and desired the assistance of counsel for their defence; where-
upon the Court assigned WILLIAM BRIGHAM and BENJAMIN B. That-
cHER, Esquires, as counsel for said prisoners, and appointed Tuesday,
the 28th day of October, for their trial.
-


T R. I. A. L.
or
HENRY JOSEPH AND AMOS OTIS.
PRRSENT,
Hon. JOSEPH STORY, Associate Justice of the Supreme Court.
ANDREW DUNLAP, Esq., U. S. Attorney for Mass. District.
WILLIAM BRIGHAM and - -
Benjamin B. ThatchER, Esqr's Counsel for the Prisoners.
- , Esqr's.
On the said 28th day of October, the prisoners being brought
up at the appointed time, and placed at the bar, the Jurors were
called, and the Clerk proceeded to fill the pannel, the prisoners
exercising the right of challenging peremptorily, and of question-
ing the Jurors, when the following gentlemen were sworn to try
the issue, viz.
Benjamin R. Knox, Foreman. Thomas Nesmith,
Moses Clark, Stephen Mansur,
William Loring, Joseph A. Tiffany,
Charles Hudson, Lemuel Ingraham,
William H. Richardson, Manning Anson,
Levitt Cobbett, Joseph Day.
The Indictment was then read by the Clerk, as follows:
United States of America, District of Massachusetts, to wit.
At a Circuit Court of the United States of America, for the
First Circuit, begun and holden at Boston, within and for the Dis-
trict of Massachusetts, on the fifteenth day of October, in the
year of our Lord, one thousand eight hundred and thirty-four,
the Jurors for the said United States, within and for the said Dis-
trict of Massachusetts, upon their oath present, that Henry Joseph,
late of Boston, in said District of Massachusetts, mariner, on the
fourteenth day of August, in the year of our Lord, one thousand
eight hundred and thirty-four, on the high seas, within the Admi-
ralty and maritime juriºietion of the United States, and out of
l

6
the jurisdiction of any particular state, in and on board a certain
brig of the United States, called the Juniper then and there be-
longing and appertaining to Windsor Fay, then being a citizen of
the United States, with force and arms, in and upon one James
Crosby, then and there being the master of said brig and then
and there being in and on board said brig in the peace of God, and
of the said United States then and there being wilfully, feloni-
ously, piratically and of his malice aforethought, did make an
assault; and that he, the said Henry Joseph then and there with
force and arms, and with a certain dirk, made of iron and
steel, which he, the said Henry Joseph, then and there had and
held in his right hand, him the said James Crosby, and in and
upon the left breast of him the said James Crosby, and in and
upon the lower part of the belly of him the said James Crosby,
upon the right side thereof, willfully, feloniously, piratically, and
of his malice aforethought, did strike, thrust and stab; then and
there giving him, the said James Crosby, by such striking, thrust-
ing and stabbing with the said dirk, in and upon the left breast of
him the said James Crosby, and in and upon the lower part of the
belly of him the said James Crosby, upon the right side thereof,
two mortal wounds, each of the breadth of two inches, and of the
depth of six inches; of which said mortal wounds, the said James
Crosby, then and there on the said fourteenth day of August, in
and on board said brig, on the high sea, within the admiralty and
maritime jurisdiction of the United States, and out of the jurisdic-
tion of any particular state, did die; and that Amos Otis, late of
said Boston, mariner, at the time of the committing of the felony,
piracy and murder aforesaid, by the said Henry Joseph, was then
and there in and on board the said brig, on the high sea, within
the admiralty and maritime jurisdiction of the United States, and
out of the jurisdiction of any particular state, wilfully, feloniously,
piratically and of his malice aforethought, present, aiding, help-
ing, abetting, comforting and maintaining the said Henry Joseph,
to kill and murder the said James Crosby in manner and form
aforesaid, and to commit the piracy, felony and murder aforesaid;
and so the Jurors aforesaid, upon their oath aforesaid, do say that
the said Henry Joseph, and the said Amos Otis, him the said
James Crosby, in and on board the said brig, on the high sea,
within the admiralty and maritime jurisdiction of the United States,
and out of the jurisdiction of any particular state, in manner and
form aforesaid, wilfully, piratically, feloniously, and of their mal-
ice aforethought, did kill and murder against the peace and dignity
of the said United States, and contrary to the form of the statute
of the said United States, in such case made and provided.
And the Jurors aforesaid, upon their oath aforesaid, do further
present that afterwards; to wit:—On the second day of September,
in the year of our Lord one thousand eight, hundred and thirty-
four, the said Henry Joseph, and the said Amos Otis, were first
brought into Boston, in the said District of Massachusetts, and
that the said District of Massachusetts, is the District into which


7
the said Henry Joseph, and the said Amos Otis, were first brought
after the commission of the crime aforesaid. -
A TRUE BILL.-Attest.
ISAAC STEVENS, Foreman of the Grand Jury.
ANDREw DUNLAP, Attorney of the United States for the District of Massachusetts.
The Indictment having been read, the District Attorney
opened the case for the Government with a few remarks, in
which he stated his expectation of introducing testimony to
prove, first, that the fatal blow which caused the death of
Crosby was given by the prisoner Joseph ; and secondly, that
Otis was, in the eye of the law, so present, aiding and abet-
ting at the commission of that crime, as to be chargeable as
principal at the murder, in the second degree. He was pro-
ceeding to detail at some length the evidence which he
should rely on, and particularly the declarations, relating to
the murder, which he expected to prove were uttered by Otis
on the day subsequent ; but declined pursuing his train of
remarks at the suggestion of the Prisoners' Counsel, that the
repetition of his proposed testimony in anticipation of the tes-
mony itself, and in presence of the persons expected to deliver
it, would probably serve to impress unduly the minds of the wit-
nesses, in reference to the words to which they were expected
to testify. He proceeded to call the witnesses for the prose-
cution—the Court directing, at the request of the Prisoners'
Counsel, that while each of them was on the stand, the rest
of the number should be detained in the marshall’s cus-
tody, out of court, that each might undergo a separate ex-
amination. -
It having been shown, by the proper papers, that the brig
Juniper, on board which the crime charged in the Indictment
was alleged to have taken pace, belonged to Mr. Windsor
Fay, of Boston, and had sailed out of that port on the 2d of
August, 1834, for Surinam, with nine persons on board, inclu-
ding the prisoners—the first witness introduced was James
H. Peterson, who testified as follows: -
I am an American by birth, twenty-eight years old. I was second
mate of the Juniper. It was my watch on deck, on the morning of Au-
gust 14th, Capt. Crosby and the mate, Eldred, were in the cabin, fast
asleep. At twenty minutes after 2, saw Joseph, the cook, in the cabin,
trimming the lamp. The lamp was blown out, and at the same time, i
heard a screech in the cabin. Ran to the cabin and met the Captain
trying to get on deck; ran down and caught him, and liſted him up, and
asked, “Captain Crosby, what is the matter?' He answered, ‘I don’t
know.' Saw the blood running out of his breast, and then called for
Otis, who was near the forecastle, to bring a handspike or axe, for ‘the

S
cook had murdered the Captain, and was afoul of the mate in the cabin.
He ought to have heard, but did not come.
When I saw the mate coming up the gangway, and the cook after him
with a bayonet, I carried the Captain to the mainmast. The cook fol.
Howed the mate forward, stabbing him behind in the legs, a great many
times. I clinched an oar about mid-ships, and struck the cook one blow;
he seized the oar, witness being hold of the other end. Finding it
was no use to stand about it, I dropped the oar and ran forward to get
something else. The cook followed me, my foot slipped, and I partly
fell, and at the same time saw Otis in the fore-rigging, making a motion
to go up, as fast as he could. I ran to the larboard side, to get the cook's
axe, but it was not in its place; then clinched a spar, half of a royal
yard, at the same time the cook was stabbing the mate, and the mate
calling on me for assistance. I struck him two blows on the head, with
the spar, but finding I could not strike him a third time, without hitting
the mate, I clinched the cook, he calling on Otis for his knife. Otis had
come down from the rigging, and come along side of me, and now said
he ‘could not find the knife, had not got it.’ The mate was now so weak
he could not stand, and left me with the cook. I picked up a rope and
tried to get fast to the cook, to get a rope round his neck and choke him.
The first time I did not get the rope round his neck. The second time I
got two turns round his neck, and round the forerigging, the cook
pushed me off with his fists, which brought the rope tight and began to
choke him; he let go of me and took hold of the rope round his neck,
and then I made him fast to the rigging. When I was to work with the
cook, I kept calling to Otis—take hold, for God's sake, take hold, and
save one life if you can.” He made no answer. I called up all hands at
the forecastle, and they came up. Otis was standing aft of the foremost,
when they came up. Silver, the man at the helm, came forward first,
and I told him to bring some spun yarn to make the cook fast. He did
so, and tied his hands behind. The mate was carried below. I went to
the Captain and found him dead and cold. There was a stab in the
Captain's breast, near his heart, and another in the side of the abdo-
men. In the cabin I found a broken dirk on the floor, full of blood. It
was the handle and about two inches of the blade, newly broken, lying
by the Captain's berth. The sheath was found in the cook's berth under
his pillow, [the sheath and handle of the dirk were produced by wit-
ness] the rest of the blade of the dirk was in the Captain's body. [The
witness also showed the bayonet, which he saw the cook have when pur-
suing the mate.] The dirk belonged to the cook, who told me so. The
call of the cook for a knife was in Spanish, and Otis answered in Eng-
lish.
Found the sheath in the cook's berth at daylight. Nobody owned a
dirk but the cook. Found also a case-knife in that berth. [This was
produced in Court and identified.] The cook confessed he killed the
Captain.
[The defendant's counsel objected to any confession being given in
evidence, unless it were first shown that none of the crew, who had him in
custody, had offered any inducement to him to confess: and cited Rer v.
Swalkins, iv. Carrington and Paine, 520, where it was held ‘if the prisoner
was in custody as an accused party, it must be shown there was no
inducement held out to him by those in whose custody he was. Court
overruled.’] - ..
The morning of the murder, I had the cook put in irons, and set him
in stocks on the quarter deck. Kept him there the whole passage:
When the cook was tied at the mainmast, he said he had done it, and
9
was sorry for it. Capt. Parsons questioned him at three o'clock in the
ºrnoon. Before this, had hailed the brig Agile, at half past one, and
Captain Parsons had come on board. Capt. Parsons left his second mate
on board arrived in Boston the 2d of September.
Otis slept in the forecastle, while coming home, and the crew on the
quarter deck. They refused to gº forward, because they said they were
afraid of their lives, with Otis. The first port we came to was Boston.
On cross examination, Peterson testified that himself, and
Silva, and Otis were on deck at the time of the alarm, in
discharge of their duty as mate's watch; that Silva was at the
helm, and about two feet from the binnacle; that witness knew
the hour from looking at his watch just before, by the binna-
cle light; that Silva stated to witness the day after the murder,
that when the alarm was given he had run into the boat at
the stern of the vessel; that he did not come forward to
help the mate until the cook was lashed; that Otis, when
witness saw him, a few moments before the alarm, was lying
down on the deck, starboard side, not far from the forecastle,
about twenty feet from the witness, smoking a cigar; that he
had no arms about him, to witness's knowledge; that witness
was about eight feet from the cabin, and twenty from Otis ;
that when he first saw Otis after the alarm he was ten or twelve
feet up the forerigging, and mounting as fast as he could; that
witness had used the axe between seven and eight o'clock that
evening; that he had told the cook he had better confess, but it
was after he had made one free confession that he killed the
Captain; that it was a calm star-light night, and the moon had
gone down; that Otis had behaved well on the voyage; that
the nine persons on board were well employed, and were
none too many to navigate the vessel; that over the mouth of
the fore-castle, where the crew slept, was a cover on hinges,
which might at any time be turned over and fastened down
tight and solid, to keep the rain out; that there had been no
quarrels on board; that witness did not understand Span-
ish, but a few words of it; that the mate of the Agile
was wanted on board, to help navigate the brig into port;
and that he had kept up a continual cry upon Otis for help,
during the contest with the cook.”
Dr. Charles T. Jackson called. Had no doubt that the wounds de-
scribed, as inflicted on Captain Crosby, must produce death. The dag-
ger must have been broken by passing through the heart and striking the
spine. The wound in the abdomen must also have been mortal.
e. With the exception of the cross-examination, we are indebted to the Editor of the
ºston Advocate, for what we consider, on comparison with other ample notes, an accu-
.." of the testimony, and this with some slight corrections, we have adopted


10
William Eldred was first mate of the Juniper. He went to bed at
twelve o'clock, the 14th of August, and fell asleep. The first thing he was
sensible of was hearing the second mate halloo, that the cook was mur-
dering the Captain and mate in the cabin. At the same time heard a rat-
tling against the ceiling of his berth over head. Then sprung out of his
berth to get on deck. No light in the cabin. The Captain was in his
berth, apparently asleep, when witness turned in. Got on deck, and saw
the Captain as he passed, sitting abreast of the mainmast on the starboard
side. Ran forward to the starboard rigging, pursued by the cook with a
bayonet in his hand, endeavoring to stab him. Cook followed him up
the cabin, stabbing him. Received eighteen blows from him with the
bayonet. Was first stabbed in his breast, while in his berth; was not
sensible of feeling any of the blows, but infers, from the stabs in the
mattrass and clothing, that he was stabbed seventeen times in the cabin
before he got on deck. On deck he clenched the cook, who then gave
him one stab in the back. While clenched, he and cook passed over to
the rigging on the larboard side. There the second mate came to his assist-
ance, and struck the cook twice with piece of a spar. The cook lost his
bayonet, stooped to recover it, and witness pushed it away with his foot.
The lurch of the vessel then made them sally against the foremast. Otis
passed them, so near as to touch the cook with his elbow. Cook asked
him for his knife. Otis answered in Spanish, and witness did not rightly
understand the answer. Supposed it to be, he had none. Otis passed by
and stooped, as he supposed, to pick up the bayonet. It being dark, could
not distinctly see. Did not see him pick it up. Witness asked Otis for
assistance at the time he was passing, and he made no answer. Heard
the second mate also call for assistance. Otis answered only the cook.
The first cry was, that the cook was killing the Captain.
Recollects nothing after that, which occurred at that time, except that
he saw the Captain on deck, and spoke to him and found he was dead.
Was then taken below, very badly wounded, and remained there until he
arrived at Boston. Identified the bayonet shown in Court, as the one
which the cook used, taken from one of four guns, hanging in the cabin.
Stated on cross-examination that he was not sensible of receiving but one
wound, the one on deck. He had four wounds in the breast, two of
them in the chest, so that the air passed out as he breathed. Five wounds
were on his arm, six in his left leg, one in his hand, and one in his back.
He could not leave his berth till the day they made the land. The cargo
consisted of fish, beef, pork, flour and lumber. There was no money on
board, and had been no quarrelling. The nearest land was Bermuda,
about four days' sail; Cuba was fourteen or fifteen. Otis had behaved
well on the voyage.
William Stevenson belonged to brig Agile, Capt. Parsons—fell in with
the Juniper, 14th of August. Boarded her at half past two, P. M., that
day; remained and assisted her in. Saw the Captain lying dead on
deck. The mate was in the cabin, and he expected to die every minute.
Thomas Larkin, an American, was one of the crew. The day before
the murder, at noon, the cook and Otis were grinding knives, on the
grind-stone; rest of the crew at dinner. They were talking in Spanish.
That night they were together, between ten and eleven o'clock, talking
Spanish. In the morning, heard the cook singing out for Otis. When
witness came on deck,saw the second mate making the cook fast to the fore-
rigging, and Otis, standing the starboard side of the fore-rigging, doing
nothing. Silva was helping lash the cook. At daylight he found the
axe lying near the cask, where Otis stood when witness first saw him on
deck. After the Captain's death, that forenoon, Otis was jumping and

11
laughing about the deck, and saying, ‘that was nothing; that he had:
been abºard of ships and seen many a better man than the Captain, ly-
ing in the same way.' That afternoon he said ‘if the cook had got
through with them aft, and all hands murdered, the way in which he and
the cook would have walked that brig's quarter deck, would have been
no man's business.’ I asked him what he meant to do with the brig. He
said he and the cook would run her into some part of Cuba. The crew
slept aft after this, because they were afraid of Otis, who slept in the
forecastle. He told witness he had slug shot in his chest. Stated on
cross-eramination that witness and Otis carried the mate below, after he
was wounded. The crew were as friendly to Otis as any one. Never
suspected him till after the Captain was murdered. Never heard any
quarrelling aboard, or the cook complain. Did not know of any money
on board. Confirmed what Peterson testified about the cover of the
forecastle; and said the crew were all well employed on the voyage; that
the cook was slovenly in his habits; that Otis appeared perfectly willing
to help him carry the first mate below. Did not know how many knives
the cook ground, but knows that they were knives commonly used at
the table.
William Silva, a Swede, 21 years old, being at the helm at two o'clock,
heard ascreech in the cabin, and the second mate call out that the cook had
killed the Captain, and then saw the first mate coming up the compan-
ion-way, and the cook after him with a bayonet. Otis ran up the rigging.
The second mate sang out for him, but he did not say anything. Silva then
went forward, when the mate and second mate had mastered the cook and
tied him. The mate sang out for Otis, but he did not come. When the
cook spoke to him, Otis answered in Spanish, and witness did not under-
stand him. Did not see Otis do anything. Witness went forward and
tied the cook's legs. In the evening before the murder, the cook was
showing a Spanish dirk to Otis. The dirk was the same testified to by
the second mate. The cook and Otis were talking together in Spanish.
They could talk English. The next day after the Captain was killed,
Otis said “he would do the same that night the cook did the night before.”
When the mate of the Agile came on board, Otis said, “let him beware
of me; if I let the cook loose, and a pair of us get at it, there will be
slashing work.” He was running about and laughing, and said “he had
seen a better man than the Captain, in the same way.” Otis had a sling
shot in his chest, which witness saw. Stated on cross-examination that
Otis had been at the helm from twelve till two; that there was no regu-
lar rule about dividing the helm between the two; that it was the cook's
duty to grind the knives, and he had no particular time for it; that cook
never ate dinner with the crew; that some one usually helped him grind
at the stone; that they were grinding the knives where he could easily
see them, and continued at it some time after he came up; that the crew
were all busily employed, and were none too many; and that the cover
of the forecastle could be fastened down to keep the rain out.
John Dumly, (a lad of 20,) born in Maine, was one of the crew. He
saw the cook show Otis the knife or dagger in the evening, the same the
Captain was killed with. When he came up on deck he heard the cook
call for his knife. Otis answered in Spanish. When the mate of the
Agile came on board, he heard Otis say that “he must beware of him,
for if he cut the cook adrift and a pair of them got at it, there would be
slashing work.” None but Otis and the cook spoke Spanish on board.
They were often talking together. Otis said that “if the cook got through
it, they would have taken the vessel into Havana or scuttled her.

12
Moseph Moore, 21 years old, born in the Isle of Man, was one of the crew.
When all hands were called on deck he heard the Cook ask Otis for a
knife, in Spanish; he said cuchillo. Otis answered in Spanish. Saw the
cook and Otis grinding knives at the stone, at dinner-time, on the 13th.
When the mate came on board, Otis said the must beware of him; if he
let the cook loose and a pair of them got at it, they would make slashing
work of it.’ The next day heard him say that “if the cook had got
through his work aft, and all hands been murdered, no man would ask
him and the cook, how they walked the quarter deck. Stated on cross-
eramination, that dinner-time was not an unusualtime for grinding knives,
and that they were ground at all-times.
Charles F. French, assistant of the Marshall, produced a shot in a
sling, which was found in the chest of Otis, and identified as the sling
shot the seamen saw in his chest.
The testimony for the prosecution here closed, and the prison-
ers’ counsel having none to introduce on their behalf, their de-
i. was opened by B. B. THATCHER Esq., in substance as fol-
OWs:
If, Gentlemen of the Jury, in rising to address you on this oc-
casion, in behalf of the prisoners arraigned at the bar, I acknow-
ledge, as I freely do, that I am oppressed with the responsibility
which rests upon myself and my associate—the awful responsibili-
ty of the lives of two of my fellow men—I trust I shall receive
some portion of your sympathy, and a great deal of your indul-
gence. There are many circumstances in this case which call
loudly, gentlemen, for the sympathies of us all. The unfortunate
men now awaiting the issue of this trial, are known to us, and to
the American public, only through the medium of the charge of
a foul and horrible crime, brought against them in this indictment;
a crime at which humanity shudders, and the very description of
which seems but too likely to create and to circulate a prejudice,
against the persons accused of its commission, as oppressive as it
is unjust. Nor has this feeling been mitigated by the publication
of garbled and exaggerated reports of preliminary examinations,
filling the mind of the public. These circumstances have operat-
ed on defenceless men—foreigners—without country, kindred or
friends—with no means of procuring the slightest aid in this emer-
gency, but such as charity may grant them; and without the power
even of producing such testimony of a previous established char-
acter, as may well be believed to exist.
In regard to the testimony of the prosecution, it is needless to
remind you of the opportunity which these witnesses have enjoyed
of continual consultation together, since the day of the death of
Crosby down to this. Some of them have gone at large—using,
certainly, no influence which could lighten the prospect of the
prisoners' acquittal—while the rest of the number also, if confined,
have been constantly accessible to their comrades, and to each
other. It is unnecessary to accuse men in such a situation of a
conspiracy to swear away the lives of the prisoners, under a possi-
ble expectation of thereby relieving themselves from suspicion-

-
13
or to gratify a grudge of revenge-or with any other feeling or
design. I make no such charge, gentlemºn: I have no proof to
substantiate, and no wish to suggest it. But you cannot be una-
ware how strongly the situation of these men—without conspiracy,
and perhaps without consciousness of harm, or of hazard, of any
kind, to themselves or others—must have led them to substi-
tute imagination for recollection ; and the real recollections of
one for the reveries and vague impressions of another—transfer-
ing and confusing the whole—and constituting in the aggregate,
by these motley contributions, so far as the law is concerned, a
mere sailor's story—a legend of the long-boat. Sailors are super-
stitious enough, and credulous enough, and careless enough, in
all conscience—especially as regards the use and the memory of
words—to need no foreign instigation, and no fraudulent pur-
pose, to show the necessity of the extremest caution on the part
of those who hear them, and who adjudge the mortal destiny of
their fellow men from their testimony, when they come, as in
this case, to make that destiny dependent, perhaps, on the right
understanding and right recollection and right repetition of some
half uttered sentence, or possibly of some hasty word.
But what has this testimony—such as it is—been introduced to
prove? The indictment alleges the murder of Crosby; and that
he was murdered by these two prisoners—by Joseph, as principal
in the first degree—and by Otis, as principal in the second; or, in
the farther language of the law, as ‘present, aiding and abetting.”
And all this is undertaken to be proved—with a slight exception,
hereafter to be mentioned—by circumstantial evidence—‘a species
of evidence,” as Starkie has well remarked, ‘which requires the
utmost degree of caution and vigilance in its application.” And
well it may. It is as easily made as any. It is sometimes nega-
tived with more difficulty. And though it is an old maxim, that
circumstances cannot lie,” it is a still older one, that witnesses
can. They can be mistaken, too; and they can misrecollect and
misrepeat. They can be credulous and careless, and reckless of
consequences, and thoughtless of the value of facts and words.
They, as well as their testimony, must indeed be regarded with
the utmost degree of caution.”
The wisdom of the law has not forgotten these liabilities. It is
not ignorant–nor are you, gentlemen, ignorant—of the daily dis-
tinction between plausibility and certainty, and between presump-
tion and proof. Its early records have not been crimsoned in vain
with the blood of the victims of circumstantial evidence.
Mr. Thatcher here referred to a number of instances in which
innocent men had been executed upon such testimony. Among
them was the case of Harris, (cited in the first edition of Philipps'
Evidence,) an inn-keeper, who was executed for the murder of a
guest named Gray, who had died of apoplexy of Gwynnet, (in
Starkie) who was hanged, but luckily escaped death, and after-
wards met in a foreign country with the man for whose murder
he was hanged; and of the servant-girl, convicted a few years







14
since in England, of taking the life of a woman, her mistress, who,
as it finally came to light, by confessions, had been murdered by
two persons who entered the house—although it was fastened as
usual, and but these two women were supposed to be in it—by a
plank passing into an upper window, over a dark alley, from the
upper window of a neighboring house. The coincidences and the
inferences thereupon—which constitute the force of this kind of
testimony, were perhaps less striking in all these cases than in
that of the celebrated Barnard, prosecuted for sending threaten-
ing letters to the Duke of Marlborough.-He met the Duke once
in a certain part of Westminster Abbey, and a second time near
a particular tree in Hyde Park, respectively in precise accord-
ance with an arrangement proposed in the two letters. There
was certainly strong reason for supposing that he went there un-
der that arrangement; and he was required to show that the meet-
ing was accidental;-luckily he was able to do so.
The law, then, not without reason, requires (continued the
Counsel,) that ‘the facts upon which the burden of proof rests,
shall prove,’ in the first place, “every single circumstance which
is essential to the conclusion, in the same manner and to the same
extent as if the whole issue rested upon each individual and es-
sential fact.”—[1 Starkie's Evidence, 502.] This requisition goes
a great way, but it goes none too far. Nor far enough. The
law further demands, that ‘ the circumstances should to a moral
certainty exclude every other hypothesis but the one proposed to
be proved.”—[Ibid. 509.] It must not only then be, as in other
cases, competent testimony, and credible testimony, so far as the
witnesses are severally concerned. It must furnish a complete
basis to build a conclusion upon. No link must be wanting, for
one destroyed,
“Tenth, or ten thousandth, breaks the chain alike.’
The circumstances must each and all be as thoroughly establish-
ed, as if each were the only one. They must be consistent with
each other—as facts are always consistent. They must be more
than consistent with the conclusion assumed—the conclusion of
guilt—they must be exclusive of any and all other conclusions.
* This principle requires,’ adds Starkie, ‘that upon a charge of
homicide, even when the body has been found, and although indi-
cations of a violent death be manifest, it shall be fully and satis-
factorily proved, that the death was neither occasioned by natural
causes, by accident, nor by the act of the deceased himself.’ It is
not improbable, for example, as this learned writer proceeds to add,
that in the latter case, a person bent upon self-destruction would
use precautions to protect his memory from the disgrace attached
to a falo de se. In the case of Spencer Cowper, [State Trials] a
‘ doubt,” in the language of the authorities, on this very point, was
adjudged a a reasonable ground of acquittal.’ I do not under-
take to urge such a doubt in this instance, gentlemen; it will be
for you to consider if there is any. I refer to the precedent as an
º

15
mustration of the rule of exclusive conclusiveness. That rule ºr
quires you to be assured, “to a moral certainty, not only of the
death ºf Crosby—which we may not deny—but of his murder—in
cold blood, and with malice—and that he was murdered by the
person or persons accused in this indictment. Murder, gen-
tlemen, cannot be committed but by a rational creature, in his
same mind. An idiot cannot commit the crime; nor can a mºnº:
you must of course be satisfied, then, that Joseph, if he killed
Crosby, was in a sane mind at the time when he killed him. Let
me explain my meaning from the pages of Combe,” one of the
highest of medical authorities: “Where, as in monomania, only
one or two faculties are disordered, the rest remaining sound, the
patient is at first conscious of the aberration of feeling or of
thought which it produces, and employs all his powers tº suppress
and conceal the slightest appearance of its existence. Frequent-
ly he accomplishes this so successfully, that he goes on for months
unsuspected, except by very close observers, and then, under
some casual excitement, losing command of himself, gives full and
sudden vent to his delusion in an act of manifest insanity. This
often happens in monomania; and, as the act itself may either be
a mere explosion of folly, of harmless passion, or of unaccounta-
ble apprehension and hatred, or be a direct infraction of the laws
of morality, such as the perpetration of murder without an exter
mal motive, it behoves us to be extremely on our guard against
condemning as a crime, what is in truth a symptom of insanity,
and not to add the cruelty and ignominy of condemnation to the
already severe visitations of disease.” The learned Dr. Marechali
gives a case in point, of a lady, who, being unhappily married
nursed her infant for three months, when she became sad and
taciturn, and was often in tears. One day, sitting near the fire,
she exclaimed with great eagerness and agony, Snatch the child
from me, or I will throw it into the flames,’ and then confessed that
for a long time she had been struggling against an almost irresisti-
ble impulse to destroy the child, and that, on approaching a win-
dow or fire, the desire always returned. The infant was taken
from her: she became melancholy, and, lamenting her unhappy
propensity, attempted suicide. She recovered; but three years
afterwards had a relapse, and in the second month of nursing was
seized with the same unnatural propensity, and, after resisting its
force for some time, again parted with the child, and, horrified at
her own condition, repeatedly attempted suicide. The well-known
Dr. Otto, of Copenhagen, describes a similar affair as resulting
from a morbid excitation in a part of the brain, caused by conges-
tion of blood, which originated from a fall; and he wisely adds :
‘We ask, whether any body, in this case, would have admitted
responsibility of crime, if the patient really had executed his plan
* On Mental Derangement. The Boston Medical Magazine says of this book, “We
have read no production on mental derangement, which we consider so valuable as the
volume before us,’ &c.
# Archives Generales de Medecine, vol.xii.


16
to murder his son This case affords a good illustration of my
preceding statement, that frequently the crime is only the first
palpable sign of existing insanity, and shows the necessity of
scrupulous enquiry being instituted, where an unnatural act is
committed by an individual who would previously have revolted
at it.”
The noted Hadfield, who in 1800 was tried in the King's Bench,
for shooting at the King in Drury Lane Theatre, defended by the
late Lord Erskine on the ground of ‘a species of insanity,” and
on that ground, under the direction of Lord Kenyon, acquitted
by the Jury--it appearing to them that the prisoner was under
the influence of insanity when the act was committed”—this
Hadfield was, nevertheless, so far from displaying the ordinary
symptoms of ordinary derangement, that on his apprehension,
amongst other expressions, he said, that ‘ he knew perfectly well
his life was forfeited; that he was tired of life, and regretted no-
thing but the fate of a woman who was his wife, and would be his
wife a few days longer, he supposed.” These words he spoke
calmly, and without any apparent derangement; and, with equal
calmness, he repeated that he was tired of life, and said that his plan
was to get rid of it by other means: he did not intend any thing
against the life of the King; he knew the attempt only would an-
swer his purpose.”
Not to dwell upon this point, gentlemen—which is alluded to
as a pertinent illustration of the rigorous rule of circumstantial
evidence on which we think we have good reason to rely—I
need not remind you, as regards this ground, if you shall deem it
a ground, of ‘reasonable doubt,’ that the nature of the suggestion
itself, as implying the systematic concealment, on the part of the
prisoner, of those very circumstances which would be his defence
—forbids you to demand of us the details of such defence. You
will not forget also, that it is strictly impracticable, under the cir-
cumstances, to procure any evidence which may exist of previous
derangement. Nothing is or can be known of Joseph previous to
this voyage, and next to nothing since its commencement, during
the few days which preceded the death of Crosby.
You must also be satisfied, gentlemen, that the killing of this
unhappy man was the result of such malice as the law makes es-
sential to murder. There is an important distinction between
murder and manslaughter. The latter is, in the language of Fos-
ter [Crown Law, where death ensueth upon a sudden affray.”
It is “in heat of blood, upon some provocation given or received.”
And again, where upon a sudden quarrel, two persons fight,
and one of them kills the other;' [Archibald] or, where a man
greatly provokes another by some personal violence, the other
immediately kills him.” [Ibid.’ The Counsel here reviewed the
evidence against Joseph, as connected with these suggestions, and
enlarged upon those points which threw a doubt over the accura-
* See Shelford on Lunatics, p. 293; also, State Trials.

17
ey of Eldred's recollection, and over the inferences to be drawn
hom his statement as it stands. He referred also to those traits
in the Cook's character, which were likely to furnish occasiºn for
sudden affray"—a matter of such every day occurrence, ºn board
vessels, as certainly to be, in itself by nº means without the pale
of presumption. Whatever reasonable doubt there might be, as
to this part of the testimony, must at all events go for the benefit
of the prisoners. The conclusion of murder must be established
to a moral certainty; and every doubt in this connection; and
every occasion of doubt, is, of all others, to be weighed with the
ºutmost caution” of the law. -
The counsel also endeavored to justify both the hypotheses of in-
sanity and of manslaughter, by an argument upon the want of appar-
ent motive on the part of the prisoners, or either of them, for the com-
mission of the crime. He reviewed the testimony regarding the
behavior of both on the voyage, previous to this bloody affair-
the fact, that no quarrelling or complaint was heard of—the na-
ture of the cargo—the absence of money—the hopelessness of a
contest of one man, or two men, against seven or eight men, as
able at least as themselves—the acknowledged impossibility of
navigating the vessel into port with less than nine men, or at all
events (after the death of Crosby) without Stevenson's aid—the
great distance from any place where the prisoners could either
dispose of the vessel or cargo, (if at all,) or make their escape
from it—the utter want, in a word, of any motive of revenge, ava-
rice, or anything else, for the commission of so foul a crime, and
the certainty that it must infallibly be followed by the just juris-
diction of the law. The Counsel remarked, and cited authorities,
on the propriety of considering the evidence with the view of as-
certaining the inducement, or the want of inducement, to crime.
“It is but reasonable, in a case of doubt, to expect that some mo-
tive, and that a strong one, should be assigned as an inducement
to commit an act from which our nature is abhorrent.' [II Starkie,
965.] Stress was laid also on the proverbial irritability of the
African constitution—the circumstance of the death being caused
by a weapon which he always carried about him—and the other
facts in the case, whether more favorable or less opposed to the
hypotheses above named.
On the matter of the confessions, the Counsel remarked that he
had but little to say. He did not deem it worthy of much discus-
sion. The law lays a sort of abstract estimate of value on what
is called a free confession; but the same reasoning, which would
make such testimony most valuable, makes the show of it, also,
most suspicious, and the reality almost an absurd chimera. Fos-
ter calls it “the weakest and most suspicious of all evidence;’ and
Starkie adds, with great force, that it is of the weakest kind,
‘where it is doubtful'—as it certainly is here—‘whether the party
making the admission knew his legal rights and situation.” All
the authorities agree, that such declarations are excluded by the
proof of ". degree of inducement, of any kind. The slightest

18
threat or promise sets it aside [Philipps.] In v. Rex. v. Cass,
[i. Leach, C. L. 293, that rule was applied to ‘the slightest hopes
of mercy held out’—it matters not, of course, by whom— to in-
duce a prisoner to confess;' and the same in Rea, v. Jones. [i.
Burn’s; 565.] The Court said, in Rea, v. Warwickshall, [ii.
East, 658, that “a confession from a mind influenced by the flattery
of hope, or the torture of fear, comes in so questionable a shape
when it is to become evidence of guilt, that no credit ought to be
given to it—it should be rejected at once.” It was so rejected in
Rea, v. Wilson, [i. Holt, N. P. C.] because the committing magis-
trate had obtained it by examining the prisoner, as if he were a
witness,'—and with no other inducement at all. So, º any per-
son's telling the prisoner that it will be better for him to confess,
will exclude a confession made to that person, though he was not
in any authority as prosecutor, constable or the like.” [Rex v.
Dunn, iv. Carrington & Payne, 520.] In Hall’s case, proof of an
application by the prisoner to give King’s Evidence, was rejected
because it was made, as Starkie states, under the hope” of being
so received—which of course must be inferred from the applica-
tion alone; and the same language was held in Rex v. Rudd, [i.
Leach, C. L. 115, by Chief Justice Mansfield, when he decided
that a confession made UNDER THE Notion of being admitted as
a witness for the crown, is not to be considered a free and volun-
tary confession.” [See also Cowper, 330.] The law was, in Rea:
v. Swatkins, [iv Carrington & Payne, that “if the prisoner was
in custody as an accused party, it must be shewn there was no in-
ducement.” Here the cook was in custody of all the crew, not
to say, in chains—made fast to the mast—and probably in mo-
mentary fear of being thrown overboard—roughly handled, we
have reason to believe, at the best. Now, so far are we from
being assured by all who thus held him in custody, and in deadly
terms, that no inducement of words—if any such be needed—was
offered him, that only one of the witnesses, Peterson, has testified
to the point at all; and Peterson admits that he told him he had
better tell the truth; and once admits that he told him so before
any confession was made—though that statement was slowly re-
tracted, and he thinks, on the whole, that a part of the confession
was previous to any part of the promise. Who can suppose this
ignorant foreigner to have known his legal rights; or, if he had
known them, to have been at this time under circumstances pro-
per for their calm consideration; or for the consideration of any
thing but his own ultimate safety, and perhaps the immediate
security of his person and life? The books are full of the histo-
ries of confessions of guilt made by innocent persons—made under
the excitement of fear or hope—confessions, of which no explana-
tion can be found but in the trepidation and confusion incidental
to the circumstances under which they were given, and on the
strength of which, nevertheless, these very men have paid the
penalty of their character and their existence. The confession of
the Cook, if confession it is, after all which is sworn to, or half
-


19
sworn to by one man, who doubts a little whether the inducement
he held out about the same time, was previous or was not-(it is
most creditable to Peterson’s humanity to suppose that it was so,)
and when nobody else has testified whether they held out induce-
ments or not—such a confession, clearly, is unworthy of discus-
sion for a moment. The second confession (so called) being ad-
mitted to be subsequent to the promise of Peterson, of course can-
not be legally considered at all. - -
I freely admit, continued the Counsel, that the evidence against
Joseph, is strong; and I turn from it with a feeling of relief, to a
case which appears to my mind invested with few such doubts.
If Joseph be convicted, gentlemen, of manslaughter, by your ver-
dict, Otis must be acquitted of course, for that crime, in its nature,
admits of no instigation or abettance; it is the result of a passion
taken by surprise. Otis is charged, however, with being present
aiding and abetting at the murder. How must the prosecution
support this charge? The allegation implies, as Starkie states,
an assent to the principal act. That assent must be proved either
by some act done directly in furtherance of the commission of the
crime, which manifests the consent of the prisoner, as by his
keeping watch, or by evidence that he was associated with the
rest in the prosecution of one common illegal object, in the exe-
cution and furtherance of which the principal crime was commit-
ted.” In the language of Marshall, C. D. Liv Cranch, 492, at
the moment of the act there must be a present intent and capacity
conjoined, to render immediate and direct aid.* Let us enquire
how far the testimony in this case goes to show, in the sense of
the law, the presence and abettance of Otis.
The Counsel here went into an examination of the evidence of
a previous assent of the alleged intimacy between the prisoners—
the circumstance of their talking Spanish together—the grinding
of the knives on the 13th–the sitting up late, and showing the
dirk to Otis, in the evening—-none of which he contended, nor all
of them, so far as they could be relied on as facts, were fairly sus-
ceptible of a sinister, and far less of a conclusive construction,
against Otis. They were no evidence at all of a conspiracy.
It is no strange thing that the only two on board the Juniper who
happened to be able to speak a foreign language—especially as it
was the native tongue of one—should converse incidentally and
indifferently in either of the two. The display of the dirk—if so
simple a thing were evidence against the owner of a dirk—was
certainly none against the person to whom it was shown; and it
does not appear that it was not shown to every body or any body
on board as freely as to Otis: it is fairly inferable from the testi-
mony, that the cook always carried it about him on the voyage,
and perhaps often had occasion to use it in his vocation; it is well
known to be customary among sailors in those seas, to be armed
* See also Foster's Disc.---ii, Starkie, 9.--C. J. Parker's Charge in Commonwealth
vs. Knapps.

20
with at least a knife, slung by a girdle, and there is good reason
why they should be. It does not appear, that all the rest of the
crew were not armed as much. It is to be presumed they were.
Neither is it an extraordinary thing for sailors in the southern seas,
especially in the hottest seasons, to be on deck late at night, and
at all hours, and even to sleep on deck; the forecastle, at the
best, under such circumstances, is a miserable hole–dark, close,
dirty, and often full of vermin. It was no disgrace to any man’s
taste or decency—and far less a circumstance which should be
brought up to prove a conspiracy of murder—that he should oc-
casionally prefer the deck to the filth and foul air of such a dun-
geon—however used to it by custom or hard labor, the refreshing
breezes and delicious skies of the only hours which either his
leisure or the climate would allow him to enjoy. There must be
better evidence than this to convict a man of assenting to a mur-
der. And as for the knives, it was unworthy of mention. A
startling phenomenon, indeed! that a cook, whose duty it was
stated to be, should be seen grinding the cabin-knives—at a cus-
tomary hour—when he had prepared dinner for the crew, and was
not yet permitted to eat his own; that Otis, too, should have been
civil enough to turn the stone for him at his request, which some-
body of course must do—especially as the Cook was generally
complained of for keeping his things in bad order, and was pro-
bably, for that reason, if for no other, not much in the good gra-
ces of most of the crew; and then, that all this remarkable pro-
cess of the Cook’s grinding the cabin-knives, or some of them,
should have taken place in the most public part of the deck—at
the most public time of the day—where it could be seen by every
body, as it was by at least two of the crew; and that these des-
perate conspirators, discovered though they were in this horrid
act of grinding the cabin-knives (very likely for their own use at
dinner that very day) should nevertheless continue to grind on as
usual, and just as if their fell purpose was not seen through! To
be serious, gentlemen, so far as gravity is consistent with such
premises, (continued the Counsel) all these trifles, ‘light as air,’ on-
ly go to show what food a strong prejudice will feed on; and how
it will make such food as it feeds on; and how the recollection of
minds so stirred up for prey, in the course of such conferences as
these men have had together for the last two months, will rake the
whole bottom of the past with a drag-net. No trifle is too light
for such an omnivorous greediness. Only those who are familiar
with the habits of sailors can understand it.
The Counsel here added some comment on the manner of some
of the witnesses, and particularly on the contradictions, and sup-
posititious statements of Peterson, he would not say as going to
impeach his veracity—and he clearly deserved great credit for his
courage at least—but as illustrating the remarks before made on
the little reliance to be placed on the accuracy of a sailor’s recol-
lections of certain things. This was always true. It was paticu-
larly so, when there appeared to be a great excitement—a stronger


21
liability than usual to err, and slighter opportunity to observe cor-
rectly the facts undertaken to be stated; still more, when all these
cloudy impressions had been subsequently talked over, and dreamt
over, for months, and confused together in every possible way.
Peterson did not hesitate to swear, for example, that the Captain
and Eldred were in the cabin at two o'clock ‘fast asleep.” He
also swore to the words of the question put to Otis by Joseph in
the scuffle, though he says it was given in Spanish, and that he is
ignorant of that language. What is more, he swears roundly that
the answer of Otis not only was made to the Cook, and not to him-
self, (though it seems he was himself continually calling on Otis
for help,) but that it was made in English—and he swears even to
the precise words of the answer in English—while three other
witnesses, quite as much in a situation to understand, swear that
the answer was made in Spanish, or, at all events, in a tongue
which they did not understand; and they, therefore, very properly
decline stating more minutely what it was. These and other
things indicate both an eagerness to testify against the life of his
unfortunate comrade, which, said the Counsel, I am sorry to see,
and a gross degree of recklessness in the use of words and the
statement of facts, which cannot be too closely scrutinized and
guarded against by the Jury.
The Counsel proceeded to discuss the evidence relating to the
presence and abettance of Otis at the crime. His actual presence
was in the discharge of his duty. He belonged to the watch.
Silva and the mate were as much present as he. There must be
something more then than the proximity of his person; on board
the vessel he could not be otherwise than present in the construc-
tion of the law. Stress was laid on the circumstance of his loca-
tion on the deck, which it was contended was the worst he could
choose for aiding the Cook in his presumed plan;–on his posture
(lying down) and negligent self-amusement (with a cigar); on his
being apparently without arms, even the slightest, when it was so
easy to have furnished himself with them, especially if he had
this terrible instrument, which was shown in court, in his trunk—
and which only shows that though he had arms, as most sailors
have, he did not use them. He did not use even the axe, which
it seems was in that part of the deck the evening previous. Or,
if he did take it up, when the alarm came from the cabin, and Otis
commenced his flight, a very natural thing that he should, if it
was any where near him, in its usual place—he carried it only to
the cask on the larboard side (where one witness saw it in the
morning) and there dropped it, and fled up the rigging for the se-
curity of his own life against the phrenzy of the Cook. He was
10 or 12 feet up when the mate saw him, and still mounting. Did
this look like a conspiracy? It was not so courageous a course
as the mate's, but is quite as much so as Silva's, who ran for the
boat. All men are not equally brave; and this certainly was a
scene, by which, at such an hour, even a brave man might be
pardoned if he were startled from his usual composure. Otis did


22
not recover from it at once. He came down, and approached the
horrible melée slowly; and it is not wonderful that he did. His
fright, and his reluctance to interfere, are the strongest proofs of
his perfect innocence.
Something was said of the readiness with which Otis aided in
carrying down the mate—and of the ease with which he might
have fastened the crew down in the forecastle, had he been con-
nusant of any design against them or the vessel. The Counsel
then proceeded to the alleged declarations of Otis, subsequent to
the death of the Captain, but left the discussion of them chiefly for
his associate. Finally, he alluded to the conduct of Otis on the
voyage, both previous to this horrid transaction, and after it; it
was represented as uniformly unobjectionable, and even praise-
worthy. He submitted, with perfect quietness, as usual, to the
orders of the vessel, and no complaint is made that he neglected
his duty.
Was this the conduct, gentlemen, (he concluded) of a guilty
man? Of a man whose soul was drugged with the foul conscious-
ness of having instigated—against an unoffending, defenceless
comrade—a husband and a father, in his sleep—of whom no
complaint had ever been uttered, and who had never complained
of him—a cold-blooded crime of such unexampled atrocity—a mid-
night, maniac massacre—a deed, of which, even as the memory
shadows it forth to day—
* The horrid image doth unfix the hair,
And make the seated heart knock at the ribs
Against the use of nature!’
Was it such a course, gentlemen—I repeat—as such guilt com-
monly chooses, and deliberately pursues? That guilt whose char-
acteristic and whose curse it is, as God has created the constitu-
tion of the human mind, that it discerns, or fancies that it does, in
all things around it—in every eye that looks upon its own, and in
every voice that answers to its own—the discovery of its shame,
and the prediction of its punishment!—that guilt, which hears
even in the wind’s whisper, only the last moan of its poor victim!
which sees, on the bright whiteness of its own hands, those “damn-
ing spots” which no tears can wash away, nor time obliterate, nor
all the perfumes of Arabia remove; no, gentlemen, nor
* all the sweets that load the breeze,
When Indian ships return through Coromandel's seas.”
No! It was the composed, dignified, fearless conduct of an
innocent man—of one who would rather, had he had not been so,
have betaken himself, at any hour of the night, to the long-boat of
the vessel, and entrusted his body and his soul to the cold mercy
of the waves. He might have so saved himself at least from the

23
jaws of the law. But, suspected, watched, worried and hunted
down as he perceived he was—even by the same persons so fool-
ishly afraid of him, or affecting such fear, as the testimony shews
—he adopted a better and a nobler course. He threw himself,
for the justification of his assailed character, and for the safety of
his life, on the institutions of a country, whose boast he had heard
it was—and it is her boast, gentlemen; it is the glory of every
freeman on the face of the earth, where floats the starry flag—
that around not her own citizens only, but all in the shape of man
—of whatever condition or country they may be called—be they
the sons of the land, or the sons of the sea—every human crea-
ture whom misfortune may drive back, for the defence of his rights
and his life, against the walls of her justice—around and before
them all, she stretches freely the broad aegis of her laws. I re-
joice that he could make such a decision. I rejoice still more
that he did make it. I rejoice, gentlemen, that these liberal laws
and these free institutions, do furnish him this day a just protec-
tion. I rejoice that to your intelligent interpretation of the
evidence delivered before you, and of all the various and curious
circumstances of this singular case, we can, as we do, cheerfully
resign the prisoners for the solemn decision of their fate; a deci-
sion, gentlemen, which, we are well aware, no appeal ever can be
made from, but to the Infinite Being alone, who is the Father,
and will be the just judge, of us all!
The Counsel in opening the defence for the prisoners, having
occupied from 4 to 7 o'clock, in the afternoon, the court adjourn-
ed; and on the following morning, WILLIAM BRIGHAM Esq., con-
cluded the defence, in substance as follows:
GENTiºmen of the jury:
I should not properly regard the important interests involved in
the issue of this trial, did I not feel the great responsibility, which it
imposes on me—a responsibility, that I am sure, no one can feel,
till he finds himself before a jury, attempting to speak in behalf
of those, whose lives depend on their verdict. No doubt you feel
a great responsibility as well as myself. Seldom are men called
upon to perform a higher duty than you; for you are to pass in
judgment on the lives of two of your fellow men, and by your
verdict, either to restore them to their friends, or to put an end to
their existence. I have no appeal to make to your sympathy—I
would make none, if I had; for if they are guilty, I have no wish
to screen them from the just punishment, which the law prescribes.
The common safety of us all—the protection, which the govern-
ment owes to the people, demands that crime should be punished,
and nothing will excuse any of usin attempting to shelter it from
its just penalties. But in our exertions to bring the criminal to
Justice, we cannot be too careful that we do not accuse and con-
viet the innocent. ‘If the guilty escape, the law merely ſails—

24 -
but if the innocent suffer, it creates the difficulty, it was intended
to remedy—it destroys our security.” It does the individual an
injury, that nothing can atone for—it invades those rights, which
cannot be surrendered without thwarting the designs of Infinite
goodness.
The prisoners at the bar, are charged with the crime of murder.
The indictment alleges that Joseph struck the fatal blow, and that
Otis was present aiding and abetting. To this charge, they have
severally pleaded not guilty, and have put themselves on the
country for trial. Fortunately for them, the trial is had in a coun-
try of equal laws, of which the most prominent feature is their
humanity—of laws, which presume no man guilty, and which
cannot be executed but through an independent and learned court,
and an impartial jury. Yet they are tried under disadvantages
of which no human laws can afford a remedy. They are stran-
gers—in a foreign land, and in a destitute condition. The crime
of which they stand charged—the reports which are circulating
through the community, colored and magnified, as they always
are, by the credulous—the character of the deceased—all tend to
create a strong paejudice against them. The witnesses, who have
borne testimony against them, were the only persons on board
the Juniper at the time of captain Crosby’s death ; they are
friends to each other—have been together from that day to the
present, a part of the time on board of the same vessel, and since
their arrival, in the same room in jail. This has given them am-
ple opportunity to form a conspiracy against the prisoners, and so
to arrange their testimony as to make a strong case against both.
Or, if the witnesses are perfectly honest and desirous of telling
the truth, it needs no great wisdom to see how conversation on
this subject during ten weeks of confinement, would refresh their
memories, confirm their suspicions and strengthen their doubts.
The death of captain Crosby has undoubtedly during all this time,
been the principle topic of conversation, and nothing would be
easier than for one of those men, having certain facts and expres-
sions told him, to have acquired a strong conviction that he saw
and heard them himself. Their testimony bears such marks of
consultation and design on the face of it—and though it is beyond
the power of the prisoners to refute it, yet no intelligent jury can
fail to see that their thoughts all run in the same channel, and
that their testimony all comes from the same mint.
Joseph is charged with having done the fatal deed. Most of
the evidence against him is circumstantial. Before he can be
convicted, the government must shew beyond a reasonable doubt,
that Capt. Crosby died of the wounds received—that these wounds
were given by Joseph, and that he did it with malice prepense.
If it were done by Joseph in a fit of insanity, or on a sudden pro-
vocation, you cannot find him guilty of murder. Malice is neces-
sary to constitute the crime, and there can be no malice, where a
homicide is committed, by reason of a sudden provocation. The
law pays so much regard to the passions and weakness of man,


25
that it considers such an act as nothing more than manslaughter,
and if from the evidence, you are satisfied that such was the char-
acter of this crime, then you must bring in a verdict of man-
slaughter, and not of murder.
Before proceeding to an examination of the evidence, it is pro-
per to inquire what motive the prisoners had for committing the
crime charged against them in the indictment. It is true that a
want of motive is no argument in favor of the prisoners, provided
their guilt be clearly established-–for we cannot conceive any
motive so strong as to induce murder—and he, who is guilty of
that crime, can never have an adequate motive for committing it.
But in cases of doubt—where there is no clear proof of guilt, the
want of motive is certainly a strong argument in favor of the per-
son suspected. It is like previous good character, which in all
doubtful cases, turns the scale on the side of innocence. It, at
least, is to be taken into consideration with the other circumstan-
ces of the case—and cannot fail to produce in your minds some
effect on the other evidence. Some of you may have heard of
the case of an uncle, who was convicted and executed for the
murder of his niece, who was afterwards found to be living, and
had absconded. The evidence against him was wholly circum-
stantial. His niece had been heard to cry out, ‘good uncle, do
not kill me!’ and soon afterwards disappeared. She had a large
property, and this was motive enough to fix suspicion of murder
on the uncle, and being required to produce her before the justices
of assize, he procured another girl, resembling his niece, and at-
tempted to pass her off as such that he might avert suspicion.
The fraud was detected, and his guilt was regarded as conclusive.
Here the motive to commit the crime was the strongest circum-
stance of the case, and probably did more than anything else to
satisfy the jury that the other circumstances were conclusive
proofs of his guilt.
On the other hand, if there is a powerful motive to refrain from
the commission of a crime, stronger evidence would be required
to establish guilt. The same evidence, which would lead to the
conviction of a man, who would acquire a large property by mur-
der, might not be sufficient to convict another, who would lose a
large property by the same act. The motive must be taken into
consideration, and forms an important part of the evidence of in-
nocence or guilt in every doubtful case.
Apply these principles to the case at the bar. Had the prison-
ers any motive for the commission of so horrible a murder? And
if so, what was that motive? Was it the hope of gain? Certainly
not. All the witnesses testify that the nine persons on board
were none too many to manage a vessel of the size of the Juni-
per. This was the general opinion among the whole crew at that
time, as appears by the fact, that it was thought necessary to ob-
tain the aid of Stephenson from the Agile, after the death of the
captain, to navigate her safely into Boston. The brig had been
out fourteen days, and was three or ſour days' sail from the near-



26
estland, which was the Bermudas, and at least fifteen days’ sail
from any port in Cuba. It cannot be supposed that two men, one
of whom was a cook, and wholly ignorant of navigation, would
have the presumption to undertake to manage such a vessel, or
would entertain a hope of getting her safely into port. Such an
undertaking in those seas, so subject to whirlwinds and storms,
would have been the height of folly, and would have exposed the
lives of these two men as well as the vessel, to the most imminent
danger. There was no money on board. The cargo consisted of
fish, beef, pork, flour and lumber, all of which are articles, that
could not be easily converted into cash. And had the vessel been
navigated in safety to a port in Cuba, no reasonable man would
suppose that there was any chance to sell these articles, and es-
cape detection. A vessel coming into port with but two men on
board, could not fail to lead to inquiry, and that inquiry would
cause suspicion—and suspicion must inevitably lead to detection.
If it was their intention to scuttle the Juniper, they certainly could
not have been actuated by a motive of gain. If we suppose the
prisoners had formed a conspiracy to murder the whole crew, they
certainly would have begun the contest with fearful odds against
them. They would have had seven to oppose them; and the
watches were so arranged that there was no time in the night,
when two of these seven were not on deck. The other five were
in different parts of the vessel, which had no connexion with each
other, but over the deck, so that a joint action of the forces of the
two was hardly possible. So far then as motive goes, there is no
presumption of guilt against the prisoners, but on the other hand,
they had every inducement to continue their voyage, and obtain
their proper wages. And if neither Joseph nor Otis had any mo-
tive to commit murder, it is needless to answer the objection,
that it would be still more strange for Joseph to commit such a
crime without the aid of some of the crew.
The second mate, Peterson, testifies that just previous to the
captain’s coming on deck, he saw Joseph in the cabin trimming
the lamps. He was in his proper place, performing his usual
duty, and this of course does not afford any evidence of his guilt.
There was one other person in the cabin besides himself and the
captain, (Eldred,) and if you are satisfied that a homicide has
been committed, the crime must lie between them. But you must
first satisfy yourselves that the death of the captain was caused by
the wounds which he received at that time, and that they were
given by some other person. If you are satisfied of this, then
you must inquire whether it was done by a person of a sane
mind and with malice aforethought. I admit that if the govern-
ment prove a homicide, the burden is put upon the prisoner to
shew any circumstances in mitigation. Murder is presumed un-
less the contrary be proved. But where a homicide is committed
secretly, we must have recourse to the same evidence, to show a
mitigation of the offence, that the government use to prove it.
There are strong circumstances in this case, to shew that Joseph


27
committed this homicide, if he committed it at all, in a fit of in-
sanity, or in the heat of blood. Several witnesses testify to the
slovenly habits of the cook, and Peterson says distinctly, that when
he saw him trimming the lamps, he did it in a very slovenly man-
ner, and put them out. Is it unnatural or unreasonable to sap-
pose that the captain, perceiving the conduct of the cook, sprang
from his berth, and chastised him, and in consequence, the cook
in a moment of passion, plunged the knife which he always car-
ried about his person, or kept in his berth, into his heart? The
testimony of Eldred is not inconsistent with this supposition. He
was first awakened by the cry of Peterson on deck—he sprang
from his berth, and then heard a noise among the guns, which
hung in the cabin. The wounds which he received were all given
him, as he says, by a bayonet, showing that he must have received
them after he got out of his berth, and that the cook was induced
to attack him from a supposition that he was coming to aid the
captain. By this theory, we can account for the strange conduct
of the cook—the commission of a homicide without motive—and
the man a victim too, who had on him the highest claims to res-
pect. The bruised head of the cook seems to confirm this sup-
position.
But we are here met by the confessions of Joseph. Confes-
sions are good evidence, when made freely, and without hope of
reward, but when they are not so made they are regarded, and
very properly too, with great suspicion. Cases are not uncom-
mon, where innocent persons have confessed themselves guilty of
the worst crimes, and by these confessions were convicted and
executed. The case of the Bournes, in Vermont, is familiar to
you all. They confessed themselves, in open court, guilty of
murdering a man, who saved them from execution, only by re-
turning home alive. There are many other cases of the same
character. [The Counsel referred to some cases mentioned in 2
Starkie's Evidence, 49.]
In this case, no inducements were held out to Joseph sufficient
to legally exclude his confessions. Yet when you consider his
situation, being wholly at the mercy of the crew, and out of the
protection of the law, you cannot rely much on anything which
he said or confessed. A prisoner confined within the four walls
of a jail has the most perfect protection which the law can afford;
and his confessions are not to be excluded because he is confined;
but one pinioned on the quarter deck of a vessel at sea, in the
hands of an exasperated crew, knows not his destiny, and would
be likely to say and do anything that would save his life. At
any rate, let the confessions be received with their full force, and
they are by no means inconsistent with the supposition, that this
was a crime of manslaughter, and not murder.
Both of the prisoners are charged with the same crime, yet
there is no pretence that Otis did the fatal deed. He is charged
with being present, aiding and abetting. The evidence shews
that at the time of the supposed murder, Joseph was in the cabit

28
with the captain and first mate, and that Otis was lying on a re-
mote part of the deck, smoking, He was at least twenty or thirty
feet from Joseph, and wholly out of his sight. He could therefore
have been present only by construction of law. It is not contend-
ed that he was actually present. And in order to give him a con-
structive presence, the government must shew a previous concert
or conspiracy between the prisoners—that Otis was in that place
by agreement, and with the intention of affording aid in the mur-
der, and that he did actually afford aid—for in all cases, the aid
must be actual, though the presence may be constructive. (The
Counsel here cited 2 Starkie 6. Foster's Crown Law, Discourse
3. § 4. 4 Cranch, 929. Pick, 518.)
What then are the proofs of a conspiracy between the prison-
ers to commit this crime? The government attempt to establish
this point from the acts and conversations of Otis previous, at the
time, and subsequent to the death of captain Crosby. It appears
that they had been friendly to each other during the voyage, and
that they frequently conversed together in Spanish. Their friend-
ship can be no proof of joint guilt, for it is a notorious fact, that
the cook always has a favorite among the crew, and there is no
good reason why Otis should or should not be this favorite. Span-
ish was the native language of one, and is spoken with great ease
by the other, and it is certainly not strange that they should use
it in conversation, especially when they knew it excited the curi-
osity of the crew. Nothing is more natural or common than for
two persons, who possess means of communicating their thoughts
to each other unknown to their associates, to use those means in
conversation. Such an act can afford no presumption of guilt.
Nor is the grinding of knives any more suspicious. There is no
proof that any more than one knife was ground—and this was a
case knife, such as was used at the table every day, and the worst
of all possible instruments to commit a murder with. And can
this act, done in open day, on deck and in presence of two or
three of the crew, be regarded as evidence of a conspiracy? There
were guns and bayonets, axes and other implements of death on
board; and can we suppose that in so unequal a contest as this,
these would have been neglected, and an old rusty case knife pre-
ferred for the commission of so horrid a crime? The hard, sea-
beaten fist of the sailor, would have been more effectual than this
knife, and as we have no evidence that it was used for a bad pur-
pose, we have a right to conclude that the cook, in grinding this
knife, was performing his ordinary duty; an act, as all the witnes-
ses testify, which was done frequently, and at any time, suited to
his convenience.
It is said the prisoners sat up till between 10 and 11 o'clock on
the evening previous. This was on the 13th of August, and they
were sailing in lat. 30° north. The weather was warm, and the
evening pleasant. It is no wonder that they should prefer the
pleasant breezes of the evening to the warm pent up air of the
forecastle. It is well known that sailors are not particular, or



29
exact about their hours of turning in. Day and night to them is
much the same, and their sitting upon deck till 10 or 11 o'clock,
on such an evening, is the last circumstance that should be men-
tioned to prove a conspiracy to commit murder.
Much stress appears to be laid on the conduct of Otis at the
time of the cry of murder. It appears by the evidence, that Pe-
terson, Silva and himself, constituted the watch from 12 to 4
o'clock that morning; that Silva was than at the helm; Peterson
was standing near the main-mast, and Otis was lying forward, at
least twenty-five feet from Peterson, near the forerigging. His
duty required him to be on deck at that hour, and it being a still
and pleasant evening, and his aid not immediately required, no-
thing can be more natural than his reclining in that position. He
was in just the position that an innocent man would be found, and
of all places in the vessel, the least favorable to carry into effect
such a conspiracy. Can you for a moment believe that this was
the station previously agreed upon; that Otis was there in persu-
ance of that agreement, to aid Joseph in the commission of mur-
der? If you do not, then Otis is not guilty of being present, aid-
ing and abetting. Of the three persons on deck, Otis was the
most remote from the cabin. Peterson, a strong and powerful
man, stood between him and the cabin; Silva was near by, so
that it is inconceivable that Otis should have rendered assistance
either by encouragement or otherwise.
He lay on deck without arms. The vessel was filled with im-
plements of death—an axe was upon deck, bayonets and guns
were below—and his shot-sling, about which we have heard so
much, was in his chest—yet he did not see fit to take any of these
in his hands; though, as the government suppose, he was about
to perpetrate a most daring and horrid deed. His conduct in this
respect is to my mind conclusive of his innocence. Had he been
a conspirator, or had he agreed to aid in the murder of captain
Crosby, he would have been prepared to strike the blow on deck
at the same time it was given in the cabin by Joseph. So des-
perate an act, certainly required all their strength; and in order
to insure success, they must strike simultaneously. But his con-
duct shows no such preparation. He was wholly defenceless,
and his actions do not give the least indication that he was aware
of the designs of the cook; but on the other hand, when the alarm
was given, like a frightened man, he fled and ran up the forerig-
ging. This does not look like being present, aiding and abetting;
it is the conduct of a man ignorant of what was going on, and
thought his own security the first object of his care. Silva was
frightened as well as Otis, and the only difference in their move-
ments at this time was, that Silva took to the boat, and Otis to the
forerigging. Is it strange that a man should be frightened at
such an alarm, made too in the darkness of night, when it was im-
possible to perceive its nature and character? Most men under
such circumstances, would not have acted with so much presence
of mind. Had he been a conspirator, this was the time his servi-
*3
30
ces were needed, and when he saw the desperate struggle between
Joseph and Peterson, would he not have taken the axe, or some
other weapon, and came to the rescue of Joseph? Men, who are
desperate or infamous enough to form such a conspiracy, gener-
ally prepare their minds to meet it, and to carry it into effect.
They do not flee at the first alarm, or abandon their designs with-
out making the least show of action. This is contrary to human
nature and inconsistent with human conduct. In the whole affair,
Otis behaved like a frightened man. He remained on the fore-
rigging but a short time; then came down, approached the second
mate and cook, carefully, like one who knew not the character of
the struggle between them; and when at last, he had satisfied
himself, like a faithful shipmate, he rendered the most essential aid
in binding up the wounds of the chief mate, and of bringing this
terrible contest to an end.
Joseph called on Otis for a knife, and it is attempted to make
this a proof of conspiracy. There is, certainly, nothing singular
in this; a violent attack had been made on Joseph, he knew his
life was in danger, and if there was the least hope of assistance,
or that Otis would prevent his immediate death, he would very
naturally &all on him. Besides, Otis was the only person present,
who was not attacking him, and, of course, he could call on no
other. Otis's answer, that he had no knife,” shows how ill pre-
pared he was to render the cook assistance, and how unexpected
such a call was made. One of the witnesses testifies that Otis
replied to the cook in English, and the others say it was in Span-
ish. None of these witnesses understand Spanish, yet because
they heard the cook, use the word, ‘cuchillo,” which they knew to
mean knife, they undertake to tell you what the cook asked, and
what reply Otis made. The character of such testimony is too
apparent to require comment. Had Otis been guilty of this
charge, do you suppose that he would have made such a reply–
that he would have taken no greater precaution to carry the con-
spiracy into effect—that he would have been unarmed—that he
would have left the scuttle open, which he might have closed,
and made the whole crew prisoners—or that he would have fled,
when the time for the accomplishment of so fell a purpose had
arrived?
Two or three of the witnesses have testified to certain expres-
sions made by Otis, the day subsequent to the death of captain
Crosby. It is needless to say that the testimony of witnesses,
who attempt to state the exact words used by another, should be
received with great caution. They are liable to be mistaken,
even if they are honest, and there is no kind of testimony which
can be so easily fabricated, and detected with so great difficulty.
Mistakes of this kind are frequent, and by them great injustice
has oſtentimes been done. A slight change of words might change
their whole character.—-The Counsel here referred to a case
mentioned in 1 Starkie's Evidence, p. 461, where a judge, in
commenting on the testimony of a witness in a trial for forgery,



31
mistook the words, “I know the drawer, the acceptor and the en-
dorser of the bill,’ for, ‘ I am the drawer, the acceptor and the
endorser of the bill.” The judge was set right by the prisoner.
Had the witness, instead of the judge, made the mistake, the con-
sequences would have been fatal. The prisoner was acquitted.
The fact that all these witnesses testify to the same words, two of
whom are foreigners, and one speaks English very imperfectly,
shews that they have had concert with each other, and that by
their conversation they have come to the same results. The tes-
timony bears the marks of such concert on the face of it.
But grant that these expressions were all made by Otis, do
they prove him guilty of this crime? Would a guilty man make
such expressions? Would he not use every means to prevent
suspicion? Would he not remain in silence, or as most guilty
men do, deny the charge before it was preferred against him?
All men are not affected alike by a scene like this. Otis found
the crew depressed and assuming a hostile attitude towards him.
He knew he was in their power, and liable to be put in irons, or
flung overboard at any moment, and it is not surprising that he
should have endeavored to give them an impression of his strength
and courage. They were the expressions of one who would im-
pose on their credulity, and not of a murderer.
The whole testimony of the case against Otis is circumstantial,
and of the weakest kind. It can all be explained consistently
with Otis's innocence. It may raise in your minds strong suspi-
cions against him, but it is not enough to authorize you to pro-
nounce a verdict of guilty. Life is far too dear to be taken away
by mere suspicions of guilt. The evidence should be strong and
conclusive—a reasonable doubt should not remain on your minds.
To the indifferent spectator, the consequences of your verdict
may not appear important, but to the prisoners, they are of the
greatest interest. All that they hold dear is at stake. They
have friends at home, who are waiting with fearful anxiety to
learn their fate. These friends have feelings for them, and dread
the severance of those ties, which now so closely connect them.
As jurors, sworn to decide according to the law and the evidence,
you are under a fearful responsibility. An honest conviction
without examination will not do. The whole evidence is before
you, and you must examine it—for the lives of these two men de-
pend on your verdict. The responsibility is upon you—and as
just, intelligent and impartial men, you must meet it. Do your
duty to yourselves, the prisoners and your country, and you need
not fear the consequences.
ANDREw DUNLAP Esq., District Attorney, followed Mr. Brig-
ham, and closed the case on the part of the government. The
following is an imperfect sketch of his argument, as reported for
the Morning Post.
Mr. D. argued that Otis was actually present, aiding and abet-
ting, although he took no part in the murder. ‘The knowledge
32
of his presence nerved the heart of the murderer.” The commis-
sion of the murder was deferred till Otis was relieved from the
helm; they were seen in consultation about three hours before
the time—a short time before it was his turn to take the helm; and
if the knowledge of his presence emboldened the cook to strike
the blow, it is equally the blow of Otis. The cook could not have
expected to effect his purpose alone, and he did confess that he
had a confederate ; and who does the evidence point out as the
confederate? He must have been one of the ship’s company. It
is argued that the plot was too absurd to have existed! Are the
wicked always wise in their plans? Is not every crime irrational?
The cook’s declaration does not of itself implicate Otis; but
Otis's own declaration that they should have taken the brig to
Havana, or scuttled her, throws new light, from a different source,
coming in aid of the broader light that a confederate must have
existed before the commission of the crime.
When the cook failed in killing the captain and mate noiseless-
ly, the plan was subverted; and he calls—not on Silva, or on the
men in the forecastle—but on Otis for a knife; and when Peterson
courageously grapples with the cook, instead of rendering the re-
quisite assistance, he skulks up the rigging, till, recovering his
presence of mind, he goes to the place where the bayonet is lay-
ing, and afterwards to the spot where the axe was found the next
morning.
The circumstance of grinding knives together, is not of itself
remarkable, but the time was suspicious—the rest of the crew
were at dinner, and the confederates were free from observation.
Why did they think it necessary to observe privacy? Because,
gentlemen, “the wicked fleeth when no man pursueth.’ Then
the dirk is shown in exultation to Otis the evening previous, and a
conversation takes place in Spanish, and the murder being com-
mitted with the dirk, points unwaveringly and irresistably to the
conspiracy. Fifteen minutes after Otis quits the helm, the blow
is struck—three hours only after the prisoners are seen convers-
ing in Spanish. The ingenious counsel say that Otis's declara-
tions were ‘mere banter and boasting.” How came he to be made
so different from the others? When the act was done, did he act
or not, like one who was art and part in the transaction? Did he
offer any assistance? Were his laughing and boasting about the
death of the captain—that it was nothing—intended to dispel the
gloom of the crew—to harden their hearts, uttering declarations
so dreadful, that it is not wonderful they are graven on the minds
of the witnesses? He is not the first man whose rash and despe-
rate speeches have followed desperate deeds. Why were he and
the cook to be sharers in the fruits of the cook’s crime, if he was
not an associate in it? Why should he threaten to let the cook
loose, if he did not cherish his original purpose? Why threaten
to do the same the cook had done? As men of practical common
sense, does the evidence induce you to believe that Otis was a
confederate? Then, painful as is your duty, it is your duty so to



33
pronounce in your verdict. Much stress is laid upon the unrea-
sonableness of believing in the existence of such a plot! But is
every plot that is undertaken feasible? Is it not often a cause of
rejoicing that the plans of the wicked fail? and if it was absurd
for two men attempting it, what shall be thought of one man doing
it? Did not Marchant and Curtis, convicted before this very
court, do the same thing, and succeed in seducing a part of the
crew 2
The plea of insanity is also set up, and rested upon the argu-
ment that the act was too atrocious to be the work of a sane man.
Let this doctrine prevail, and instead of having courts, statutes
and laws to try criminals with, we should use treatises upon mono-
mania, for law, have doctors for judges, and apothecaries for
Jurors.
Much reliance is placed on Otis's lying quietly by the scuttle
at the forecastle, smoking a cigar; but that was the very place
where he should be—there were persons there to be watched.
Otis with his shotted sling, could have killed twenty men, one by
one, as they attempted to ascend. He completely commanded
the pass—the Thermopylae of the scene.
Otis did not know, when he gave the cook an evasive answer
about the knife, that the captain was killed, and the mate disabled.
He saw the cook was mastered, and his plot overthrown. He
gave the cook an evasive answer, because he was afraid to offend
him by a direct refusal, lest he should expose his participation in
the conspiracy. He had screwed his courage for a deed of dark-
ness and silence, and he was palsied when he saw that the whole
plot was probably discovered, and the murderer mastered by the
courageous Peterson.
They argue that it is strange that a guilty man should make
such declarations as Otis did! But can it be believed that an in-
nocent man would ever have made remarks of the same character?
Gentlemen of the Jury, if the evidence of the conspiracy be so
strong as to leave no reasonable doubt on your minds of his guilt,
you must summon up all your firmness, and declare it. Do your
duty to your God and your country; for if he be guilty, he has
two lives to answer for—the captain’s and his unfortunate fellow
prisoner's.
After the conclusion of Mr. DuNLAP's argument, his Honor
Mr. Justice Story, charged the Jury as follows:
GENTLEMEN OF THE JURY:
The prisoners stand charged with having feloniously and piratically
murdered Capt. James Crosby on the high seas. The charge in the in-
dictment is in substance, that Joseph committed the murder, and that
Otis was present, aiding and abetting Joseph in the murder. They have
both pleaded not guilty; and of course you are to decide whether they
are, or either of them is guilty of the offence.
34
There is no doubt as to the general law applicable to the case. A man
may be a principal in the offence in two degrees. A principal in the
first degree is he, that is the actor, or absolute perpetrator of the deed;
and in the second degree, he who is present aiding and abetting the part
to be done—and it has been truly said, that in law as well as in reason,
there is no difference in the guilt of the parties, whether they are princi-
pals in the first or second degree. Indeed a principal in the second de-
gree may be in a moral view the most guilty of the two; for he may be
the leader and instigator of the crime, and the other but an instrument in
his hands. A case occurred before me, which will illustrate this doc-
trine. A gang of ruffians, in the night time, on the high seas, entered an
American vessel, under the command of a ringleader, who was present
and directed all the operations, and by his command, a passenger was
cruelly and inhumanly murdered in his sleep by one of the subordinates.
In such a case, who will doubt, that the ringleader, though he did not
himself personally inflict the fatal crime, was the more guilty of the two.
Nay, the immediate instrument of the murder may sometimes be wholly
innocent, when the instigator is the principal offender. As if a person
should innocently and without knowledge of the fact, administer poison
to another at the suggestion of one, who meant to destroy the party, and
he should shun detection; the latter in law as well as in common sense,
would be deemed the real murderer. But of this I shall speak more par-
ticularly when we come to the case of Otis.
It has been said by the learned counsel for the prisoners, that they la-
bor under great disadvantages from being strangers and foreigners. But
I am not aware that there is so much in this suggestion. If Joseph be,
as he is said to be, a Spaniard, he possesses here an inestimable advan-
tage in a trial by a jury, a privilege which he could not enjoy in his na-
tive country. And if Otis be, as he is said to be, a Canadian, though he
may be entitled in his native land to a trial by jury, he could not have
the privilege now enjoyed by him, of having Counsel freely, and fully
to address you upon all the matters of fact applicable to his case. In-
deed, the learned Counsel, who have managed the defence, are entitled
to the thanks of the whole public for their disinterested exertions upon
the present occasion, prompted, as they are, solely by a sense of duty,
and to succour those, who are in distress. They have reasoned out every
ground of defence with great ability, and force of reasoning. On this
head, whatever may be the fate of the prisoners, they can have no cause
for regret.
But it might be sufficient to say in this case, that the prisoners have
voluntarily made themselves amenable to the jurisdiction of our courts.
They have come here, and chosen to engage in our mercantile service,
and to take the protection and benefit of our laws; and they cannot
complain. Having all the protection and benefit of our laws, they are
also subject to the common responsibility of citizens, for their acts, to
those laws.
And now, Gentlemen, let us pass to the consideration of the merits of
the case, as to the case of the prisoners. -
And first, as to the Cook, Joseph. The facts as stated by the witness-
es are as follows. [Here the facts were recapitulated by the Judge.] If
you are satisfied that the facts so stated are true, they would seem to go
far to establish the charges in the indictment satisfactorily against the
Cook. What then in substance is the defence? It is in the first place,
that the Cook did not do the deed. Now, in examining this point, you
will take all the circumstances in evidence into your consideration. The
act was done in the dead of night. There were no other persons in the

35
cabin except the cook, and the master, and the chief mate. The chief
mate swears that he was in his berth; and that when he went to bed,
the captain was in his berth and apparently asleep. The Cook was seen
up in the cabin, and trimming the lamp. The lamp was put out. By
whom was it put out? Immediately afterwards, the Captain uttered
loud screams, and came up to the companion way and was assisted on
deck, and was unable to tell what was the matter. He was then bleed-
ing, and died soon after of his wounds. The chief mate immediately
after was seen running on deck, and the cook pursuing him with a dirk,
and endeavoring to strike him. The chief mate swears that he received
many wounds, and most of them, while he lay asleep in his berth. Un-
der such circumstances, if the testimony is credited, what ground of real
doubt, as to the perpetrator of the act, can be entertained 2 It will be
for you to say, whether you have any reasonable doubt. If you have,
then you ought to acquit both the prisoners.
It is also said in the defence, that there must have been some provoca-
tion for the act, if done by the cook, which would reduce the crime to
one of less malignity than murder. But what is the evidence of any
such provocation ? It is not every provocation by words or even by
blows, which will justify the taking the life of the offending party. But
it must be a provocation of so high a nature, as the law in compassion to
the infirmities of human nature treats, as sufficient to excuse the act, be-
cause it may raise the passions even of reasonable men to a high degree.
But in this case there is no evidence of any provocation whatsoever;
and the evidence of proof to establish it is on the Cook, unless it grows
out of the other circumstances in evidence. The chief mate swears that
he was in his berth, asleep, and that he heard no noise. The Captain,
for anything he knows, was in his berth, and asleep also. At least the
evidence is, that he was there when the chief mate went to bed. There
is no proof that the captain was afterward up. But there is direct proof
that the cook was up, and in the cabin. The second mate also expressly
says, that he heard no noise in the cabin, until after the lamp was put
out; and then the screaming commenced. It is certain, (if you believe
the chief mate's testimony) that he had no quarrel with the cook, and
gave him no provocation; and he knows of none whatsoever on the part
of the Captain. It is equally certain upon his testimony, (if believed)
that the Cook did stab him without any provocation, while he was in his
bed asleep. And you will say under such circumstances, whether any
presumption whatsoever of any provocation, arises in favor of the Cook.
It may be added, that it is testified that the Cook afterwards confessed
the deed. The evidence of confessions, by a party, of his guilt, if freely
and voluntarily made, without inducements held out to procure them,
is certainly admissible in cases of this sort. But such confessions are
generally received with reluctance, and when unsupported by any other
proofs are rarely deemed sufficient to justify a conviction of the party.
A suggestion has also been thrown out that the Cook might have been
insane at the time. But there is no evidence to support this suggestion;
and it cannot be admitted without proof. The mere atrocity of such an
act, if done, affords no just proof, that it was done from insanity.
Upon the whole, the greatness of the guilt of the Cook depends wholly
upon the evidence, as matter of fact, before you; for there are no witnes-
ses as to the principles of law; and you are to decide it upon your own
view of its credibility, bearing and force.
In the next place, as to Otis, the seaman. The question of his guilt is
wholly separate from that of the Cook; for the latter may be guilty, and
yet Otis may be entirely innocent. If, indeed, the Cook is not guilty,

36
thenit is clear, that Otis cannot be guilty, for he is charged only as aiding
and abetting the Cook. -
In respect to Otis, the evidence is, in an emphatic manner, merely cir-
cumstantial. There is no positive proof of his aiding or cooperating in
the commission of the murder. It is left to be inferred from circumstan-
ces. It has been already stated to you that to make a person a principal
in the second degree, it is necessary that he should be present, aiding
and abetting in the fact. But this presence need not be an actual, imme-
diate standing by, within sight or even hearing of the fact. It will be a
constructive presence, if the party is out of sight or even hearing, but yet
is near enough to render assistance and encouragement in the fact, as
by keeping watch or guard at a convenient distance; or by preconcert
taking a station where he can act his part, and assist in the manner
agreed on, in immediate furtherance of the fact. The cases alluded to
at the Bar, and especially that of the Knapps, afford a strong, and clear
illustration of the principle. In respect to presence, that of a party who is
on board of the same ship on the high seas, is doubtless near enough to
be deemed present at the perpetration of any crime at which he aids and
abets the commission on board. The whole question under such cir-
cumstances is generally reduced to the consideration, whether there is
sufficient proof of such aiding and abetting. And this is precisely the
turning point of this cause in regard to Otis; for it is not evident that he
was in a legal sense present, if he did aid and abet the crime by taking
his station by preconcert, and being there ready to aid and assist the
cook in the perpetration of the offence, although the act was done in the
cabin, and he was upon deck.
In examining this part of the case, it will be necessary for you to look
into all the circumstances with great deliberation and caution. It is
said, that Otis could have no motives for cooperation in the deed; and
that there is therefore a great improbability that he should aid and abet
it. But it is not always safe to rely on mere conjecture of motives to de-
cide either the guilt or innocence of parties. We cannot know the mo-
tives of men but by their acts. And though a want of any apparent mo-
tive is certainly a circumstance in favor of a party, in cases of doubt,
yet it cannot overcome evidence which is sufficient to satisfy us of the
acts being done by him. It has been truly remarked in this case, that if
the cook be guilty, he seems not to have had any adequate motive known
to us for the perpetration of the deed.
You must, therefore, look to the whole circumstances of the case; and
for this purpose, you will do well to consider the previous conduct of
Otis; his conduct at and during the night of the perpetration of the
deed, and his subsequent conduct and conversation, especially on the
day after it was committed. As to his conduct before the deed, it is cer-
tain (if the evidence was believed) that there was considerable familiarity
between him and the cook; and that they often conversed together in a
foreign language. But there may be such familiarity without any par-
ticipation or confederacy in crime; and the circumstance therefore can-
not lead to any certain conclusion against the party. Then, as to his
conduct at and during the night of the perpetration of the deed. His
being on deck at the time—his going into the rigging—his refusal to as-
sist the mates—his answer to the Cook, when he asked Otis for a knife.
And, as connected with these circumstances, the conversation between
Otis and the Cook on the same evening—the showing of the dirk, and
the grinding of the knives. [Here the Judge recapitulated the facts as
to these matters.] These circumstances may seem unfavorable tº Otis.
But on the other hand, there are circumstances in his favor. On the

37
night of this deed he was, at the very time of the commission of it, on the
forward part of the deck. He was just before lying down on the deck,
smoking a cigar. He was without any arms, or even, so far as we know,
the shot-sling, of which he is said to have had possession. His running
up the rigging is an act rather of fear and intimidation, than of coopera-
tion. It might, indeed, have been the result of terror at the supposed
failure of the enterprise; but it might naturally be the act of a surprised
man. Otis might have refused the assistance asked of him by the mates,
from terror or confusion at the moment. And it is certain that after the
affray or deed was over, he helped carry the wounded chief mate down
into the cabin, voluntarily, and as promptly as any of the crew. And as
to the words spoken by him to the cook, when he asked for assistance,
they may have been misunderstood. -
On the whole, upon this part of the case, even if the circumstances
before, at and during the night of this fatal mischief, should be such as
to excite suspicions in your mind of the guilt of Otis, it seems to me that
they are of too equivocal a character to justify a verdict against him,
standing alone. Suspicion is not proof; and I should think a Jury ill ad-
vised, who should venture to decide against any prisoner upon circum-
stances like these, unless they were supported by other more direct
and pressing proofs. If therefore, there is nothing but these circum-
stances, which weighs in your mind against Otis, I should advise you to
acquit him. But if there are other circumstances in the case, which
give a color and complexion to these circumstances, and are corrobora-
tive of his guilt, then they may properly be brought into the scale to
weigh as far as you think them entitled to any consideration.
And in this view, Gentlemen, I cannot but consider that the conduct
and conversations of Otis on the succeeding day, if the testimony of the
witnesses is believed, may have a most material bearing on your verdict.
I will, therefore, give the statement of the testimony of the witnesses on
this point, as it stands on my minutes. [Here the Judge stated it to the
Jury.] Now, certainly, this conduct and these conversations are extra-
ordinary in their nature and character. Such a scene as that then be-
fore the crew, was not a scene for indifference, or laughter, or light re-
mark. Larkin says, that Otis said that “if the cook had got through
with them all aft and all hands were murdered, the way the Cook and
himself had walked the quarter deck, would have been no man’s busi-
ness.’ Moore speaks to the same effect. Silva says that Otis said, ‘that
he would have done the same to-day, that the Cook did the last night.”
And as to what was to have been done with the vessel, if the Cook
had succeeded in his object, in answer to an inquiry, Larkin says that
Otis said, ‘that he and the Cook would have run the vessel into some
port of Cuba.’ And Donelly says, that Otis said, “if they got through
with it, they meant to carry the vessel into Havana or the Spanish Main.”
The question then, will be for you to decide, whether you believe this
testimony. Is it credible? Is it satisfactory 2 Does it entirely satisfy
your minds that Otis was privy to, and a party in, the original scheme of
the Cook, and that he was a principal, aiding and abetting in it? This
is purely a matter of fact, to be decided by yourselves. If, after weigh-
ing all the circumstances, you entertain reasonable doubts of Otis's guilt,
you ought to acquit him. But if on the other hand, you are satisfied,
from the evidence, beyond any reasonable doubt, of his guilt, then your
oath and your duty require you to say so.
The Jury then retired, and after an absence of about one hour
and a half, came in, and declared both the prisoners GUILTY.
4




38
The prisoners were again brought into court on Saturday, No-
vember 1st, when the Hon. Judge Story, in a very solemn and im-
pressive manner, pronounced the sentence which the law pre-
scribes—that both of the prisoners be hung by the neck until
they were DEAD–which sentence was to be carried into execu-
tion between the hours of 9 and 1 o'clock, on the second day
of December following.
APPENDIX.
The following evidence, in favor of the innocence of Otis, has
come to light since he was convicted.
I, Samuel Humphreys, of North Yarmouth, in the State of
Maine, mariner, do testify and say, that on or about the second
day of September last past, I went on board the brig Juniper, and
brought James H. Peterson, the second mate of said brig ashore;
that while in the boat I had conversation with said Peterson, in
relation to the conduct of Amos Otis, while he was attempting to
tie Henry Joseph, the cook of said brig. He stated to me dis-
tinctly that when the cook first came on deck, Otis ran up the
forerigging—that soon after he came down and aided him in mak-
ing the cook fast by tying a rope about his neck.
(Signed,) SAMUEL HUMPHREYS.
Suffolk, ss. Boston, Nov. 1, 1834.
Then the above named Samuel Humphreys personally appear-
ed, and made oath that the statement by him above subscribed, is
true.
HENRY W. KINs MAN, Justice of the Peace.
I, William Silva, of Boston, in the Commonwealth of Massa-
chusetts, seaman, do testify and say, that I was a witness at the
trial of Amos Otis–and that notwithstanding my testimony at said
trial, I now state that I slept two nights at least in the forecastle,

39
after the murder of Capt. Crosby, and before the arrival of the Juni-
per at said Boston, and that the rest of the crew slept a part of the
time in the forecastle, when it was rainy weather. I further testi-
fy that I am a native of Sweden, and have been in this country
but five months, and cannot speak the English language well.
hi
IS
WILLIAM × SILVA.
mark.
Suffolk, ss. Boston, Nov. 6, 1834.
Then the above named William Silva personally appeared, and
the above statement was read to him in his presence and hearing,
and in the presence of the subscriber he signed the same, and
made oath that it was true—before me.
HENRY W. KINSMAN, Justice of the Peace.
I, George Buckman, resident of Boston, in the Commonwealth
of Massachusetts, mariner, do testify and say, that I had conver-
sation with Thomas Larkin, on the evening of the third of No-
vember instant. He appeared much dejected, and told me his
mind was troubled, because he had testified falsely against Amos
Otis—that he had stated that Otis, on the morning after the mur-
der of Capt. Crosby, had told him that he had seen better men than
Capt. Crosby lie weltering in their blood in the same way—which
testimony, he, the said Larkin, declared to be false, and that the
expression used by Otis, was, that there had been many a man in
Capt. Crosby's situation—that the crew should not be down heart-
ed, but must sew him up and fling him overboard. He also stated,
that if Otis was executed for this crime, he, Larkin, had no wish
to live any longer.
GEORGE BUCKMAN.
Suffolk, ss. Boston, Nov. 4, 1834.
Then the above named George Buckman personally appeared,
and made oath that the statement by him above made and sub-
scribed, is true—before me.
HENRY W. KINs MAN, Justice of the Peace.
I, Mary Torrey Wildermuth, of Boston, in the Commonwealth
of Massachusetts, wife of John Wildermuth of said Boston, board-
ing-house keeper, do testify and say, that my husband keeps, and
has kept for more than eleven years, a house for the accommoda-
tion of sailor boarders, at number 76 Broad Street; that Wil-
liam Sutherford came to board with me in December last, and con-
tinued to board with me, at intervals, until he shipped on board
the brig Juniper, for the voyage of that vessel to Surinam, about

40
the first of August last; that said Sutherford (as he was called)
was always a peaceable, quiet and well behaved boarder, theré
being nothing against his character to my knowledge, excepting,
that, like many other sailors, he occasionally drank a little more
than was good for him, and that I have seen nothing of said Suth-
erford from the time he left my house last August, to this time. I
do further testify, that Thomas Larkin has been frequently at my
house for a number of years, and boarded with us at the time
when he shipped on board the Juniper with Sutherford, as above
stated; that two men, named Silva and Moore, boarded with me
also at that time, and shipped on board the Juniper at the same
time; that I went to the jail at Boston, a few days after I heard
the particulars of the murder of Captain Crosby, to see the prison-
ers, who were said to be detained there as witnesses; that at the
jail, I saw, through the window of their rooms, Larkin and Silva
and Moore, and another man, whose face I did not so well recol-
lect; that I conversed with them at the window some time, when
they all told me that Sutherford, they thought, had intended to
take possession of the Juniper, and kill all hands, and that they
slept on deck all the voyage after the murder, for fear of Suther-
ford, and should have put him in irons, if they had had the means,
and some other things which I have forgotten.
I further testify that Larkin came to my house to board, Wed-
nesday evening last, after he was discharged from detention as a
witness, and continued with me until Sunday; that on Sunday he
came in late to tea, and drank tea with me, about seven o’clock-
there being no other person present, to my knowledge, excepting,
I think, my son, and a woman who was sewing for me; that at tea
time, Larkin showed himself so much agitated, that I asked him
* what the matter was?” He said “his mind was deranged, he
did`nt know where he was; that he had’nt come to dinner that
day, because he did not want any; and that he would’nt eat any
supper;' and I observed that he ate but little. He afterwards
said, that he had wronged Sutherford in many respects;’ that
he had told lies;’ that he testified many things that he never
knew anything about;" that he had as "lief be hanged himself as
to have Sutherford;’ and other things of the kind. He said the
“rest of the hands, also, had told some lies.’ He said that “he
and they had lied about Sutherford, in every respect.’ He said:
that Peterson had testified many false things.’ He said “he and
the hands told a lie about the alleged declaration of Sutherford;
that he had seen better men than Crosby lie on the deck in the
same way—and that Sutherford had said no such thing, to his
knowledge.” He also said many other things, which, thºugh I
paid particular attention, I will not swear to. Larkin, on Monday
evening last, was very urgent to settle his bill with me, and did
so—and left my house in the stage this morning at four o'clock,
as I am told by one of my boarders. I have not seen him since
Jast night; and he then said that he should leave the city in the
41
morning, and never would come to Boston again, and never wish-
ed to see the city again.
MARY TORREY WILDERMUTH,
I, Jerusha Berry, of Boston, in the Commonwealth of Massa-
chusetts, single woman, having read the foregoing statement of
Mary T. Wildermuth, do testify and say, that so much of the
same as relates to the interview on Sunday evening, at the house
of Mrs. Wildermuth, is true; that I was present during the whole
conversation therein stated, and in addition thereto, I heard Lar-
kin say, that one of the crew had slept in the same berth, where
Otis, alias Sutherford, had slept, the early part of the same night.
JERUSHA BERRY.
Suffolk, ss. Boston, Nov. 4, 1834.
Then the above named Mary T. and Jerusha personally appear-
ed, and acknowledged on oath, that the above depositions, by them
respectively signed, are true—before me.
HENRY W. KINsMAN, Justice of the Peace.
I, Edward T. Taylor, of Boston, in the Commonwealth of
Massachusetts, testify and say, that I am the preacher to the
seamen, in Boston, and by reason of my long intercourse with
that class of men, have become somewhat acquainted with
their character, feelings and motives of action;–that having
been informed that two of this class were convicted of the
crime of murder, to wit, Henry Joseph and Amos Otis, I
went to the prison where they were confined, for the purpose
of having conversation with them, and, as their spiritual guide,
to use my best exertions, to prepare them for the solemn
event that awaited them. They were confined in separate
cells, as I was informed they always had been. I first went
to the cell of Otis, and informed him that I had not come
there for the purpose of being deceived;—that his fate was
now fixed, and that whatever he told me I should regard as
the words of a dying man. He expressed his entire satisfac-
tion with his trial, and said, he did not see how the jury, from
the evidence given, could have come to a different result;
but at the same time, declared his entire innocence of the
crime of which he stood convicted. He declared that the
testimony of some of the witnesses at his trial was false, and
made explanation of things which transpired at the time of
the murder, which gave me, at that time, some hopes of his
innocence. He appeared to be perfectly free to communi-
cate, and stated some things in relation to his former charac-
£er, which are undoubtedly true.


42
I then left Otis, and went to the cell of Joseph. I found
he was a Catholic, and consequently informed him that a
clergyman of his faith would attend him, to whom he would,
of course, make a full confession of his crime. I informed
him that I should attend Otis, and that I might be better in-
formed as to the best course of proceeding with him, I wish-
ed him to state to me what connection Otis had with the
murder. I first endeavored to impress him with a proper
sense of his condition,-that he had but a few days longer
to live—and during those few days, he must prepare himself
to appear before his final Judge. He appeared much affect-
ed, and declared that he, and he alone, was guilty of the mur-
der—that Otis had no connection with him, nor any know-
ledge of the crime, and that if Otis was executed for this
crime, he would die innocent of it; and as a confirma-
tion of this statement, he took up a Catholic prayer book,
which he held in his hand, and declared, before high hea-
ven, that what he said was true, and that he was induced
to implicate Otis in this transaction by James H. Peterson,
the second mate, who told him that if he should say that Otis
had a part in this horrible murder, as he was a black man,
he would undoubtedly be acquitted, and Otis convicted. I
asked him why he showed Otis his knife, the evening previ-
ous; he replied, that it was a knife that he had had three or
four years, and that he showed it to others of the crew, as
much as he did to Otis, and that some of the others took it
into their hands, which Otis did not. I then asked him why
he called on Otis to bring him a knife. He said that from
the violent attack made upon him, he expected immediate
death, and that Otis was the only one of the crew that he
supposed was not hostile to him, and the only one present
who was not attacking him.
His statement fully confirmed the statement of Otis, and
from the utter impossibility of their forming any concerted
plan, being in separate cells—from their whole manner,
which I cannot describe---and from their firm belief that what
they told me were the words of men whose days were few
and numbered, I came from the prison with a strong persua-
sion of the innocence of Otis—an opinion which subsequent
events have more fully confirmed. This interview took place
on Friday, Oct. 31, and on the Monday following, I had a
second interview, at which time the statements made at the
first were repeated, and more fully confirmed.
On Sunday, Nov. 2, I preached to my congregation on the
situation of these men. About noon, a person sent for me,
and expressed a strong desire to see me soon. My engage-

43
ments were such that I was unable to see him till about four
o'clock in the afternoon. I then met a seaman, whose name
I have since found to be Thomas Larkin. He appeared to
be in great distress, and was unable to sit with composure.
He told me he could never live in peace till he had confes-
sed to me, that he had sworn falsely against Otis at his trial—
and was now willing to surrender himself to justice, and to die,
if the cause of justice demanded it, rather than live with per-
jury on his soul. He said that he had testified that the crew,
from fear of Otis, had slept on the quarter deck, from the
time of the murder to their arrival in Boston, which was
wholly false; that it being rainy weather a part of the time,
they all slept in the forecastle; that when Otis got out of his
berth, some one of the crew got into it; that the expressions
which he testified Otis used, subsequent to the murder, were
wholly false. Some of these expressions he explained. The
one wherein he testified that Otis said, that he had seen bet-
ter men than Captain Crosby lie weltering in their blood, he
declared was not true, but that he was asked, by Otis, to help
straighten the body of the captain, which was bent, so that
he might be buried with decency. He, Larkin, replied that
he could not do it. Otis then told him that he must be of
good courage—that it could not now be helped—and that it
had been his fortune to do the same thing to many a ship-
mate—(that is, to sew them up and bury then)—that it was
a duty which must be done, and that he should not now
flinch from it. The other expression, that he, Larkin, testi-
fied was used by Otis, to wit—that “if he, Otis, let the cook
loose, and a pair of them got at it, there would be slashing
work, he declared to be false, and explained it by saying,
that the crew were expressing their fears that the cook would
get loose and murder them all; that Otis replied, they had
no cause of alarm, and that if the cook were loose, he would
injure none of them. Larkin also stated, the first of the above
expressions the other witnesses testified to, not from their
own knowledge, but from information which they received
from him ; and he intimated that they were led to testify to
these facts, from a strong belief in the guilt of Otis, and from
a wish to screen themselves from suspicion of being concern-
ed in the crime. I had not time, at this interview, to hear
any further confession from Larkin, but told him to come
again on Monday, and make a full statement of the whole af-
fair. He came, according to agreement, but I was necessa-
rily absent, and had no other opportunity of seeing him. He
left town, as I am informed, this morning, at four o'clock,
declaring that he would never come again to Boston, though
44
Zºº, a
he had sailed out of this port several years. I did not par-
ticularly interrogate him as to the other expressions, which
he testified that Otis used, but I understood him to say, that
they were all false in material points—that he had given
them a coloring, and had misrepresented them in court. I
ought also to add that Larkin still persisted in his belief of
the guilt of Otis, though he acknowledged that his own testi-
mony against him was false, and also the testimony of his
shipmates, in the points above mentioned.
E. T. TAYLOR.
Nov. 4, 1834.
Boston, Suffolk, ss.
On this sixth day of November, A.D. 1834, personally ap-
peared before me, the aforesaid deponent, Edward T. Taylor,
and made oath that the foregoing statement, by him subscrib-
ed, is true.
THOMAS K. DAVIS,
Justice of the Peace.
Agreeably to the sentence of the Court, Henry Joseph was
executed on the second day of December.
Amos Otis, upon application of a number of citizens of
Boston, to the President of the United States, received a re-
prieve for fifteen days, and on the twelfth day of December
was discharged from imprisonment, on the reception of the
following pardon from the President of the United States:
ANDREW JACKSON,
PRESIDENT OF THE UNITED STATES OF AMERICA.
To all to whom these presents shall come—GREETING:
WHEREAs, at a Circuit Court of the United States for the District of Massa-
chusetts, begun and holden at Boston on the 15th day of October last, a certain
AMos Oris was convicted of murder, upon which conviction he was sentenced
to be hanged—And whereas divers good and sufficient reasons have been sug-
gested why the said sentence of the Court aforesaid should not be carried into
execution –
Now therefore, I, ANDREW JACKSON, President of the United States of
America, in consideration of the premises, have pardoned, and do hereby pardon
him, the said Amos Otis, and order that he be forth with liberated and discharged
from imprisonment.
In testimonywhereof Ihave hereunto subscribed my name, and caused the Seal of the
L. s. United States to be affixed to these presents. Done at ºne City of Washington,
this 9th day of December, A. D. 1834, and of the Independence of the United
States the fifty-ninth.
ANDREW JACKSON.
By the President. - John Forsyrºs, Secretary of State.