[No. III.]

Letter from the Special Counsel, concerning the Morgan Trials.

To his Excellency ENOS T. THROOP, Acting Governor of the State of New-York:

SIR

It is my duty to report to you the progress I have made in the discharge of the duties of Special Counsel for conducting the prosecutions against those alleged to be concerned in the outrages committed on William Morgan.

The very late period at which I received your letter intimating your wish to devolve this business on me, left me but a few days to arrange my business, so that I could leave it and travel post haste to the place assigned for holding the special circuit designed for the trial of a part of these causes.

Not having been previously initiated into the peculiar questions which these causes involved, and a stranger to the witnesses, their habits, character and inclinations towards the prosecutions; and finding on my arrival there, many of the material witnesses absent, I was necessarily tardy in the commencement and progress of the

causes.

I found there four indictments to be tried; and tried two of them. One against Brown and Wright, who were both acquitted; and one against Ezekiel Jewit and another. Jewit alone was tried and acquitted. The other defendant in that indictment was represented to the court by his counsel to be so sick, that his life was despaired of. His counsel opposed his trial then on that ground. Under that suggestion I moved the separate trial of Jewit the co-defendant.

The time consumed in preparing for these trials and getting through with them, and the incidents occuring on the trials, imposed, as I thought, a duty upon me to move an adjournment of the court.

As to one indictment against several yet untried, a very material witness in behalf of the prosecution was found to be so situated that he refused to testify, and under the decision of the court in the case of Mather, I thought the objection well taken. This witness had been included in that indictment as one of the defendants, and the supreme court, on the motion of my predecessor, had ordered a nolle prosequi as to him on the indictment. This course had been taken with a view to use him as a witness. He was called upon the stand to testify in one of the causes tried, and refused to testify on the ground that there was still another indictment pending against him for the same matter. This was probably unknown or not adverted to by my predecessor. It was unknown to me until the fact came out on the trial. That indictment was pending in the oyer and terminer of Niagara county. But at the time the fact came to my knowledge, the court of oyer and terminer (in session in connection with the special circuit) had been adjourned without day, the judges

being impatient to be dismissed, and no business occurring to me as likely to need their attendance.

Under those circumstances, a necessity seemed to be imposed upon me to have the special circuit adjourned to some day beyond the then next oyer and terminer for the county of Niagara, so that at such court a nolle prosequi might be had on the old indictment. That next court being the sixteenth of November, it was adjourned over to the second Monday of January; a nolle prosequi has been had upon the former indictment, and the objection is now removed.

The course taken by some of the witnesses at the Lockport circuit, and the satisfactory evidence that we had, that other material and important witnesses had either voluntarily absented themselves, or been persuaded to abscond, were additional considerations, as ĺ thought, why it was not my duty to put any more on trial then, for the mere purpose of a formal acquittal.

The course of witnesses aliuded to, was that of one who refused to answer questions decided by the court to be proper and pertinent, and that of two others who refused to be sworn at all. These were promptly punished by the court for the contempts. Another absconded during the trial in which his testimony was wanted. How far the contumacious witnesses were influenced to the course they took, by the persuasions or advice of interested friends, I have no means of knowing, but presume that the ascertained legal consequences of such conduct, or the manner in which public opinion has relished it, will prevent a repetition of such acts of defiance against the authority of the government.

At the recent trial of Gillis, Whitney, one of the witnesses who refused at Lockport to be sworn, altered his course and testified.— Had he testified at Lockport to what he has since, and had Bruce testified there to what he had before, I believe the only possible point of uncertainty with the jury in the case of Brown and Wright, (that of Morgan's being in the carriage with which they had to do,) would have been dispelled. As to Turner, who refused on the trial of Ezekiel Jewet, to testify to the facts believed to be within his knowledge, we have not the same certain means of knowing that his testimony should have convicted the defendant.

As to the witness Giddings who absconded during the trial of Jewit, his course was equally a surprize upon the prosecution. It is known that he had once before been presented before a court in Ontario county and there rejected for the want of the supposed requisite religious belief.

Soon after my arrival at Lockport, I was addressed by the defendant's counsel to know if I should examine him. I took time to ascertain all the facts so as to answer understandingly, but reciprocating the freedom which dictated the inquiry, I asked the defendant's counsel to say to me whether, if he were examined, any attack would be made upon his character for truth and veracity. I received for answer that his character in that respect would not be attacked, for they knew it could not be. Having made deliberate examination as to the extent of the testimony in the power of the prosecution to produce, to sustain him on the matter of fact ruled against him in Ontario; and also having formed a most deliberate conviction that

that decision was erroneous in point of law, and after the assurance of the defendant's counsel as to his character for truth and veracity, which I found confirmed on inquiry, I felt bound to say that I should examine him if permitted. Any remarks upon the reasons for his departure, would be improperly introduced here, as he has yet to answer for that.

One other incident disclosed upon the Lockport trials, seems to bc of such a nature as to deserve to be brought officially to the notice of your Excellency. One witness persisted in swearing impliedly to the murder of Morgan, in order to protect himself from answering the questions put to him; swearing, as the reason for such refusal, that he might thereby implicate himself as an accessary before the fact in the murder of William Morgan; and persisted in the answers after being cautioned by the Judge that he would perjure himself by such answers, unless Morgan was in fact murdered, and unless he had satisfactory knowledge or information of the fact, or at least something more than mere hearsay or public rumor; and that if the laws of man did not punish him, the laws of God would.

Mature reflection on this incident, as well as the general history of these prosecutions, where we have found so many stratagems resorted to, to frustrate inquiry, has induced me to venture the suggestion, whether the constitutional guarantee that no man in a criminal case should be compelled to be a witness against himself, ought not to be placed by a general statute upon a different footing than that of a judicial immunity from testifying, on the ground that such testimony may be subsequently used for the conviction of the witness. Ought not the witness to be compelled to testify; and would not his security from any ill effects of such disclosure be sufficient, if that testimony were inadmissible in any criminal case against himself? That is a principle already recognized in our statute book, and I see no reason why it should not be made general. (See 2d Revised Laws, 174, sec. 42.) If this security be not thought adequate in cases of high crimes, then permit the government, under the special direction of the chief magistrate, in all such cases, to use the same means to compel an associate to testify as any other witness, and make the giving of such testimony a bar to all prosecutions against the witness for any participation in the alleged offence: I say, provide by a general statute, for I would not suggest for these cases a special law.

It would seem that such general statute would be preferable to any common law practice of favoritism, or the practice of giving rewards to witnesses to testify; a practice occasionally resorted to by most governments, but not congenial to the feelings of our people.

The great duty of the government to protect its citizens, administer justice impartially and punish the guilty, would seem to impose on it the duty of adapting its laws to the improved ingenuity of those who break the law.

At the November general sessions in Ontario county, James Gillis was tried. This was the only indictment remaining untried in that county. This defendant had been before once tried, and the jury discharged because they could not agree. The testimony against him on this trial was wholly circumstantial, and seems

not to have been so conclusive in the minds of the jury who tried him, as to warrant his conviction. This defendant and his brother moved to the southwestern part of Pennsylvania soon after Morgan's abduction, and took with them an apprentice of the brother, who is now reported to me to remain there in the employ of the defendant. If his evidence, as given before the grand jury on the finding of this indictment, be correctly reported to me, the strength of this case was materially impaired by our inability to command his testimony. But he was beyond our reach.

There are two indictments depending in Monroe, one of which is suspended by some special pleading, the question on which was submitted to the Supreme Court at the last May term, and is yet under advisement before that tribunal. Should they decide it at the approaching January term, as I understand they will; and should they so decide it that a trial will be required in the cause, these two causes may be tried at the next circuit in that county, if a judge ean be procured to attend. Judge Gardiner declines to try any more of these causes, as I understand.

The reason for not attempting to try the one cause without the other, were in part the great oppression upon the witnesses, and the expense of assembling them for one of these trials, when there was a reasonable probability that, by waiting for the decision of the Supreme Court, we might get a chance to try both at the same circuit; a coincidence very much to be desired, if we shall have to procure a distant judge.

One other indictment is depending in Genesee county. This has been removed by certiorari to the Supreme Court, to which a special plea has been interposed. The issue is not joined, owing to circumstances beyond my contro!.

The adjourned Special Circuit, which had been fixed for the second Monday of January, as being as early a day as other considerations would permit after the regular oyer and terminer in that county, in consequence of the resolution of Judge Gardiner to try no more of these causes, it has been found necessary to get further adjourned. It is expected that Judge Gardiner will attend on the second Monday of January, therefore, and adjourn the court to the second Monday of February; when it is hoped that a judge of the Supreme Court may be able to attend, without interfering with the approaching term of that court.

The above detail as well of what has been done as of what remains to be done, I have thought proper to present, that your Excellency might be accurately informed of the present state of this business.

In the discharge of the duties devolved on me by this appointment, I have received the most essential assistance from Mr. Whiting, whom your Excellency was pleased to request to act as my associate counsel on these trials. His previous acquaintance with the facts and questions arising in these causes, as well as his local and personal information of the whole subject, added to his talents and experience as a lawyer, made his aid most welcome. Indeed, the formidable array of able and experienced counsel in all these causes, with a disposition to contest every inch of ground, would seem too fomidable for me to encounter alone.