of blood were upon them; to furnish exchange of clothes, or new disguise, if necessary; to tell him through what streets he could safely retreat, or whether he could deposit the club in the place designed; or it might be without any distinct object, but merely to afford that encouragement which would proceed from Richard Crowninshield's consciousness that he was near. It is of no consequence whether, in your opinion, the place was well chosen, or not, to afford aid. If it was so chosen-if it was by appointment that he was there-it is enough. Suppose Richard Crowninshield, when applied to to commit the murder, had said: "I won't do it unless there can be someone near by to favor my escape. I won't go unless you stay in Brown street." Upon the gentleman's argument, he would not be an aider and abettor in the murder, because the place was not well chosen, though it is apparent that the being in the place chosen was a condition without which the murder should never have happened.

You are to consider the defendant as one in the league, in the combination, to commit the murder. If he was there by appointment with the perpetrator, he is an abettor. The concurrence of the perpetrator in his being there is proved by the previous evidence of the conspiracy. If Richard Crowninshield, for any purpose whatsoever, made it a condition of the agreement that Frank Knapp should stand as backer, then Frank Knapp was an aider and abettor, no matter what the aid was, or what sort it was or degree, be it ever so little, even if it were to judge of the hour when it was best to go, or to see when the lights were extinguished, or to give an alarm if anyone approached. Who better calculated to judge of these things than the murderer himself? And, if he so determined them, that is sufficient.

Now as to the facts. Frank Knapp knew that the murder was that night to be committed. He was one of the conspirators; he knew the object; he knew the time. He had that day been to Wenham to see Joseph, and probably to Danvers to see Richard Crowninshield, for he kept his motions secret. He had that day hired a horse and chaise of Osborn, and attempted to conceal the purpose for which it was used. He had intentionally left the place and the price blank on Osborn's books. He went to Wenham by the way of Danvers. He had been told the week before to hasten Dick. He had seen the Crowninshields several times within a few days. He had a saddle horse the Saturday night before. He had seen Mrs. Beckford at Wenham, and knew she would not return that night. She had not been away before for six weeks, and probably would not soon be again. He had just come from Wenham. Every day, for the week previous, he had visited one or another of these conspirators, save Sunday, and then probably he saw

them in town. When he saw Joseph on the 6th, Joseph had prepared the house, and would naturally tell him of it. There were constant communications between them; daily and nightly visitation; too much knowledge of these parties and this transaction to leave a particle of doubt on the mind of anyone that Frank Knapp knew the murder was to be committed this night. The hour was come, and he knew it. If so, and he was in Brown street without explaining why he was there, can the jury for a moment doubt whether he was there to countenance, aid, or support, or for curiosity alone, or to learn how the wages of sin and death were earned by the perpetrator? [Here Mr. Webster read the law from Hawkins,-1 Hawk. 204, lib. I, c. 32, § 7.] The perpetrator would derive courage and strength and confidence from the knowledge that one of his associates was near by. If he was in Brown street, he could have been there for no other purpose. If there for this purpose, then he was, in the language of the law, present, aiding and abetting in the murder. His interest lay in being somewhere else. If he had nothing to do with the murder, no part to act, why not stay at home? Why should he jeopard his own life if it was not agreed that he should be there? He would not voluntarily go where the very place would cause him to swing if detected. He would not voluntarily assume the place of danger. His taking this place proves that he went to give aid. His staying away would have made an alibi. If he had nothing to do with the murder, he would be at home, where he could prove his alibi. He knew he was in danger, because he was guilty of the conspiracy, and, if he had nothing to do, would not expose himself to suspicion of detection. Did the prisoner at the bar countenance this murder? Did he concur, or did he nonconcur, in what the perpetrator was about to do? Would he have tried to shield him? Would he have furnished his cloak for protection? Would he have pointed out a safe way of retreat? As you would answer these questions, so you should answer the general question whether he was there consenting to the murder, or whether he was there as a spectator only.

One word more on this presence, called "constructive presence." What aid is to be rendered? Where is the line to be drawn between acting and omitting to act? Suppose he had been in the house, suppose he had followed the perpetrator to the chamber, what could he have done? This was to be a murder by stealth. It was to be a secret assassination. It was not their purpose to have an open combat; they were to approach their victim unawares, and silently give the fatal blow. But if he had been in the chamber, no one can doubt that he would have been an abettor, because of his presence and ability to render services, if needed. What service could he have rendered if there? Could he have helped him

to fly? Could he have aided the silence of his movements? Could he have facilitated his retreat on the first alarm? Surely this was a case where there was more of safety in going alone than with another; where company would only embarrass. Richard Crowninshield would prefer to go alone. He knew his errand too well. His nerves needed no collateral support. He was not the man to take with him a trembling companion. He would prefer to have his aid at a distance. He would not wish to be encumbered by his presence. He would prefer to have him out of the house. He would prefer that he should be in Brown street. But whether in the chamber, in the house, in the garden, or in the street, whatsoever is aiding in actual presence is aiding in constructive presence; anything that is aid in one case is aid in the other. If. then, the aid be anywhere, so as to embolden the perpetrator, to afford him hope or confidence in his enterprise, it is the same as though the person stood at his elbow with his sword drawn. His being there ready to act, with the power to act, is what makes him an abettor. [Here Mr. Webster referred to the cases of Kelly, of Hyde, and others, cited by counsel for the defendant, and showed that they did not militate with the doctrine for which he contended. The difference is, in those cases there was open violence. This was a case of secret assassination. The aid must meet the occasion. Here no acting was necessary, but watching, concealment of escape, management.]

What are the facts in relation to this presence? Frank Knapp is proved to have been a conspirator; proved to have known that the deed was now to be done. Is it not probable that he was in Brown street to concur in the murder? There were four conspirators. It was natural that some one of them should go with the perpetrator. Richard Crowninshield was to be the perpetrator; he was to give the blow. There is no evidence of any casting of the parts for the others. The defendant would probably be the man to take the second part. He was fond of exploits; he was accustomed to the use of sword canes and dirks. If any aid was required, he was the man to give it. At least there is no evidence to the contrary of this. Aid could not have been received from Joseph Knapp or from George Crowninshield. Joseph Knapp was at Wenham, and took good care to prove that he was there. George Crowninshield has proved satisfactorily where he was, that he was in other company, such as it was, until eleven o'clock. This narrows the inquiry. This demands of the prisoner to show, if he was not in this place, where he was. It calls on him loudly to show this, and to show it truly. If he could show it, he would do it. If he does not tell, and that truly, it is against him. The defense of an alibi is a double-edged sword. He knew that he was in a situation where he might be called

upon to account for himself. If he had had no particular appointment or business to attend to, he would have taken care to be able so to account. He would have been out of town, or in some good company. Has he accounted for himself on that night to your satisfaction? The prisoner has attempted to prove an alibi in two ways: In the first place, by four young men with whom he says he was in company, on the evening of the murder, from seven o'clock till near ten o'clock. This depends upon the certainty of the night. In the second place, by his family, from ten o'clock afterwards. This depends upon the certainty of the time of the night. These two classes of proof have no connection with each other. One may be true, and the other false; or they may both be true, or both be false. I shall examine this testimony with some attention, because, on a former trial, it made more impression on the minds of the court than on my own mind. I think, when carefully sifted and compared, it will be found to have in it more of plausibility than reality.

Mr. Page testifies that, on the evening of the 6th of April, he was in company with Burchmore, Balch, and Forrester, and that he met the defendant about seven o'clock, near the Salem Hotel; that he afterwards met him at Remond's, about nine o'clock, and that he was in company with him a considerable part of the evening. This young gentleman is a member of college, and says that he came to town the Saturday evening previous; that he is now able to say that it was the night of the murder when he walked with Frank Knapp, from the recollection of the fact that he called himself to an account, on the morning after the murder, as it is natural for men to do when an extraordinary occurrence happens. Gentlemen, this kind of evidence is not satisfactory; general impressions as to time are not to be relied on. If I were called on to state the particular day on which any witness testified in this cause, I could not do it. Every man will notice the same thing in his own mind. There is no one of these young men that could give an account of himself for any other day in the month of April. They are made to remember the fact, and then they think they remember the time. The witness has no means of knowing it was Tuesday, rather than any other time. He did not know it at first; he could not know it afterwards. He says he called himself to an account. This has no more to do with the murder than the man in the moon. Such testimony is not worthy to be relied on in any forty-shilling cause. What occasion had he to call himself to an account? Did he suppose that he should be suspected? Had he any intimation of this conspiracy?

Suppose, gentlemen, you were either of you asked where you were, or what you were doing, on the fifteenth day of June. You could not answer this question without calling to mind some events to make it

certain. Just as well may you remember on what you dined each day of the year past. Time is identical. Its subdivisions are all alike. No man knows one day from another, or one hour from another, but by some fact connected with it. Days and hours are not visible to the senses, nor to be apprehended and distinguished by the understanding. The flow of time is known only by something which marks it; and he who speaks of the date of occurrences with nothing to guide his recollection speaks at random, and is not to be relied on. This young gentleman remembers the facts and occurrences; he knows nothing why they should not have happened on the evening of the 6th; but he knows no more. All the rest is evidently conjecture or impression. Mr. White informs you that he told him he could not tell what night it was. The first thoughts are all that are valuable in such case. They miss the mark by taking second aim. Mr. Balch believes, but is not sure, that he was with Frank Knapp on the evening of the murder. He has given different accounts of the time. He has no means of making it certain. All he knows is that it was some evening before Fast Day; but whether Monday, Tuesday, or Saturday, he cannot tell. Mr. Burchmore says, to the best of his belief, it was the evening of the murder. Afterwards he attempts. to speak positively, from recollecting that he mentioned the circumstance to William Peirce as he went to the Mineral Spring on Fast Day. Last Monday morning he told Colonel Putnam he could not fix the time. This witness stands in a much worse plight than either of the others. It is difficult to reconcile all he has said with any belief in the accuracy of his recollections. Mr. Forrester does not speak with any certainty as to the night, and it is very certain that he told Mr. Loring and others that he did not know what night it was.

Now, what does the testimony of these four young men amount to? The only circumstance by which they approximate to an identifying of the night is that three of them say it was cloudy. They think their walk was either on Monday or Tuesday evening, and it is admitted that Monday evening was clear, whence they draw the inference that it must have been Tuesday. But, fortunately, there is one fact disclosed in their testimony that settles the question. Balch says that on the evening, whenever it was, he saw the prisoner. The prisoner told him he was going out of town on horseback for a distance of about twenty minutes' drive, and that he was going to get a horse at Osborn's. This was about seven o'clock. At about nine, Balch says he saw the prisoner again, and was then told by him that he had had his ride, and had returned. Now, it appears by Osborn's books that the prisoner had a saddle horse from his stable, not on Tuesday evening, the night of the murder, but on the Saturday evening previous. This fixes the time about which these