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Trial of Marshall and Ross for barn-burning : a brief exposure of a systematic attempt to mislead the public mind, and create a false sympathy in behalf of convicted incendiaries online

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[On the night of the 11th of February, 1858, between the hours of 10 1-2 and 12,
P. JI., (the exact time was a disputed point,) two barns were consumed by fire, at
tlie Eastern Point Farm, in Gloucester, Essex Co., — an estate owned and occupied by
Thomas Niles, Esq. The barns were half a mile apart, one being within a few rods of
the dwelling house of Mr. Niles, the other down by the Light House. Mr. Niles was
absent from home at the time. In the house were his wife, an infant child, an aged
aunt, one female domestic, and three farm laborers. The burning of the two barns
was simultaneous, and no question was ever raised but that the fires wereincendiary.
The buildings, with all their contents, — two yoke of oxen, three cows, two valuable
horses, several carriages, sleighs, harnesses, &c., twenty tons of hay, a large quantity
of grain, and other valuable property, were burned to ashes. At first, it seemed
certain that the dwelling house would also be consumed, but a sudden change of the
wind turned the current of the flames, and the house was saved. The night in
question was one of the coldest of the year, and the buildings burned were several
miles distaut from any point from which aid could come.]










In the Gloucester Telegraph, Boston Traveller and Journal,
and the Salem Advocate, articles in relation to the late trial of
Marshall and Ross for barn-burning, have recently appeared,
purporting to be expressions of public sentiment, but which
look very much like so many attempts to manufacture this
somewhat equivocal commodity, and this too, in vulgar phrase,
out of the "whole cloth." Having been present, during
almost the whole of this protracted investigation, and having,
both before and since the rendering of the verict, conversed
with many persons whose judgment in the premises is entitled
to respect, I have thought it worth while to compare the
impressions I had received and the opinions I had formed,
with some of the statements contained in the aforesaid articles.
The result of this comparison I propose to submit, as briefly
as I may, to the readers of the following pages, premising that
never having had, professionally, any connection whatever
with the case, either as counsel, witness, adviser or otherwise,
1 watched the proceedings, so far as I am aware, with no
other interest in the result than is common to all who have
any claim to the character of good citizens.

The principal points of comparison, suggested by a perusal
of the articles referred to, are— the verdict, and the surprise
occasioned by its rendition— the character, especially as
witnesses, of Payne and Mary Mansfield — and the impression
made by the evidence as given on the stand, and also, as
collated and reviewed in the closing argument of the District

I. The verdict, and the surprise occasioned by its
RENDITION. And here, I would apprize the reader that the cita-
tions which I may have occasion to make, will, for the sake of

brevity, for the most part, at least, be unaccompanied by a
specification of the paper or papers in which they are found ;
and the italicizing may all be taken to be mine.

Of the verdict, and the suprise it occasioned, these writers
say — " The verdict was wholly unlooked for. The jury
were out thirty-six hours, and they are denounced for
their verdict. The verdict was against all the evidence,
astonished the prosecuting attorney, and amazed the whole bar
present." " The verdict has outraged every sense of justice
in the community. The jury cannot escape suspicions which
every honorable man ought to be eager to avoid." "Every-
body — the friends as well as the opponents of Mr. Niles — are
perfectly astonished that such a verdict should have been ren-
dered on so slight a chain of evide?ice" "After a discussion
of thirty-six hours the jury returned a verdict of guilty, much
to the surprise of all who listened to the trial. The verdict
created intense excitement here, and, whether it was just or
unjust, your readers may judge from the fact that the case
has been carried up for a new trial on exceptions." (A pretty
glaring non-sequitur, even had the fact been as alleged, as it
was not, for no hearing on the exceptions was had until
several days after the publication of the article last cited,
when they were "all disallowed because not conformable
to truth.")

To enable the reader to appreciate more fully the correct-
ness of these representations of the writers just cited, it should
be stated that, as was perfectly well known to them, the late
trial at Salem was not the first judicial investigation of the
subject. Immediately after the burning of the barns, a fire
inquest was held, composed of a jury of intelligent, honest
and capable men, presided over by a magistrate of the stern-
est integrity, of great intellectual ability and high legal
attainment. The verdict of that jury charged Marshall and
Ross. Complaints were made before a police court, presided
over by a justice of large experience, and they made a full
defence before him, and that intelligent magistrate held them
to answer. The case then went before the grand jury, who
thoroughly investigated it, and returned a true bill against
these parties. The cause then came on to be tried by a jury,
sworn to try the issue according to the evidence, and, in less
than three hours after retiring to their room, ten of that jury
desired to return a verdict of guilty, one for a while hesitated,
but eventually was ready to agree with his ten fellow jurors,

while the other, who was a townsman of Marshall, and, it is
reported, liad worked for or with him for some time between
the fire and tlie trial, stood out for an acquittal. The cause
was committed to them late on Saturday, and the jury were
early discharged to avoid encroachment on the Sabbath. Such
had been the history of tiiis case up to the time of empanel-
ling the jury for still another trial of these defendants. All
these stages had been passed, and with the results above
indicated, and yet the authors of the extracts above cited
would have us believe, that they only reflect the universal
public sentiment, when they represent that all this had been
done, and the second jury had tried the case through more
than a week's time, returning a verdict of guilty — and all
without evidence enough against the accused to justify even
a suspicion of their guilt ! But I have now to do with only
the last trial, and the verdict in which it resulted.

And had these professed reflectors of public opinion
asserted only, that the first emotion excited by the rendition of
the verdict, and by the report of it, as it went forth on the
wings of the wind, was, on the part of those cognizant of
the facts in the case, to a very great extent, that of surprise,
and had they then proceeded to unfold the real cause of that
surprise, (which " lack of service " I propose presently to
supply,) there would have been no occasion for correcting
the utterly false impressions, which their misrepresentations
on this point are adapted — not to say intended — to make.
Why, if these writers are to be believed, "the verdict" was
not only " unlooked for," but such as to cause " the jury," to
be " denounced." It not only "astonished the prosecut-
ing attorney, and amazed the whole bar present," but " out-
raged every sense of justice in the community," and "every-
body is astonished that such a verdict should be rendered
on so slight a chain of evidence."

Now I beg leave to commend to the authors of these sufii-
ciently harsh and severe utterances of an alleged public senti-
ment, and to their readers, a commentary on their truthful-
ness^ furnished by certain proceedings recently had in that
same temple of justice, which, as these writers would have
us believe, had been, in the opinion of everybody, so basely
desecrated by the rendering of the verdict in question. At
an adjourned session of the court, on the 14th of March,
the convicted defendants, Marshall and Ross, appeared, and
by their counsel moved that this astounding verdict be set

aside, and a new trial granted. Two of the reasons offered
in support of the motion, and enforced at length hy all the
learning and eloquence of the distinguished counsel for the
defence, were — " First : Because the verdict was against the
evidence, and the weight of the evidence." And — " Second :
Because the jury did not render a true verdict, according to
the law and the evidence given them, but rendered a false
verdict." What an opportunity is now afforded the District
Attorney, who was so " astonished " at the verdict, to relieve
himself at once and effectually, from any share in that damn-
ing reproach, with which public opinion was already visit-
ing all who had any agency in procuring the conviction of
two defendants, who, as their counsel affirmed " the Govern-
ment having wholly failed of provuig them guilty, had," as
a work of supererogation, " proved, to a moral certainty, that
they were innocent." And who, of all those present on this
occasion, and sympathizmg with the universal public senti-
ment, but must have been, not astonished merely, but con-
founded and horror-struck, when, instead of virtually second-
ing the pending motion, or, at least, withholding all opposi-
tion, as, in consideration of that astonishment at the verdict,
from which he could hardly yet have recovered, and his pro-
verbial kindness of heart, he might have been expected to do,
the District Attorney not only replied, with great force and
effect, to all that had been urged on the other side, but, de-
parting from his usual course in such cases, calmly and em-
phatically said to the Court — " Because of certain statements
that have been made to create public sentiment, I feel called
upon to say, that I have never been engaged in a case, where
I have had a more thorough and abiding conviction of the
guilt of the parties accused, than in this case." More than
all, when, at last, other points having been disposed of, the
whole matter rested in the discretion of the Court, and when
the earnest appeal to that discretion, by the defendants' coun-
sel, had been concluded, and when, by a single word from
the Bench, the loud and clamorous demand of an over-awing
public sentiment could be fully met, and, at the same time,
the tender mercies of the Court largely gratified, who, of
those in attendance at this critical juncture, must not have
been overwhelmed with disappointment, if not chagrin, as
the learned, able and most upright judge, who tried the cause,
and as the counsel for the defence, echoing the unanimous
ppinion of all attendants upon the trial, had just declared —

" with entire impartiality ^^^ and who must be supposed to
have understood its merits — promptly and laconically thus
disposed of the matter submitted to his discretion : — '• I see no
cause for interfering with the verdict in this case, and it is
unnecessary for me to say more than that the motion is over-
ruled ! " And yet, being present, and somewhat observant
of those around me, I did not discover, at the moment of
this announcement from the Court, any indications, even in
the countenances of the learned counsel whose motion had
been thus summarily denied, that confident expectations had
thus been " cut off,'' and sanguine hopes blasted. On the
contrary, from what I observed at the time and have since
heard, I infer that the result of the hearing in this case, was
just what was almost universally expected, as I know it is
most extensively believed to be, in perfect accordance with
the imperative claims of impartial justice. And how clearly
and unmistakably does this whole procedure give the lie di-
rect, to those representations of public sentiment, which the
writers above cited have had the effrontery to fabricate and
publish to the world !

But enough, and more than enough, as to public sentiment
respecting the character of the verdict in this case. That
its rendition excited general surprise, in which the District
Attorney may have shared, is most true. Equally true is it,
that for this surprise there was an obvious and all-sufficient
cause, as will appear from the following statement of facts.
We have already seen, that, on the former trial of this cause,
at Lawrence, a verdict of guilty would have been reached,
and this after only about three hours of deliberation, but for
the opposition of a single juror — a neighbor and acquaintance
of one of the defendants. And as, at the late trial, the jury
was about to be empanelled, one of their number residing at
Eastern Point, and very near to a brother of one of the
defendants, who, it was supposed, must, of necessity, be
more or less biased, and who was believed to have expressed
an opinion as to the merits of the case, to sundry persons,
and, among others, to some of his fellow jurors, was chal-
lenged by the District Attorney. The usual oath having
been administered, and the Court having propounded the
interrogatories prescribed by the Statute, the Attorney for
the Government questioned the juror still further, and some-
what closely, as to conversation with others, and the expression
of an opinion in relation to the case about to be tried. Having


iief^atived every idea of partiality, bias, unfairness, or of
opinion expressed or formed, presupposed by the inquiries
propounded in this examination, and this in a maimer c\em\y
indicative of a settled purpose to retain a position from whose
responsibilities any fair-minded man, similarly situated, would,
it might well be supposed, of his own motion, have, most
earnestly, prayed to be excused, this juror was allowed to
retain his seat upon the panel. From this moment it was
generally believed that the defendants were quite secure
against conviction by this jury, however clear, and absolutely
conclusive, might be the proof of their guilt. When, there-
fore, on the morning of the third day of their deliberations,
the jury came into court, not — as was well known — of their
own motion, but in obedience to a message from the presiding
judge, and, especially, as they were known to have returned
from breakfast only half an hour previously, in the care of
the officer who had them in charge, and, of course, without
having agreed, it was natural to conclude that the eleven
refractory and obstinate jurors, who, it is now well under-
stood, within twelve hours after retiring to their room, saw
" eye to eye," in the matter committed to them, were still
holding out against their unprejudiced associate, who had
sworn, as no one of them, in the same circumstances, would
have dared to do, to his perfect competency to judge and
decide, impartially and truly, between the Commonwealth and
the prisoners at the bar! When, therefore, in answer to the
inquiry of the Clerk, propounded with more than his accus-
tomed impressiveness of tone and manner, "Mr. Foreman,
have the jury agreed upon a verdict?" the foreman, with
unfaltermg voice, replied — "they have," — while, undoubted-
ly, almost all present were s/^rpmet/ by this announcement, —
not an individual among them, from the judge on the bench
to the prisoners at the bar, doubted, for a moment, that that
verdict would be, as it was, — Guilty. I will only add, on
this point, that " all the members of the bar present " on this
occasion, were very few in number, and the oldest of these is
believed to have expressed the sentiment of all his associates,
who had heard the testimony, when, immediately on the
retirement of the Judge, he exclaimed, — "A signal triumph
of law and justice ! "

II. The character — especially as witnesses — of Payne
AND Mary Mansfield. In one of the journals above cited, they
and their testimony are thus characterized. " The testimony


used by the government, is such as no honest party could use,
or ought to use. I refer particularly to Mr. Payne and Miss
Mansfield. Payne acknowledged himself to be a scamp, a con-
spirator to burning, and Miss Mansfield showed herself to be
what a regard to delicacy forbids me to name. No verdict can
be pure when based upon such testimony." Again — it is " tes-
timony coming from the vilest of the vile, unworthy to be
listened to on the trial of mad dog." To any intelligent
attendant upon the late trial, it must be quite obvious that
the author of these unscrupulous denunciations of these wit-
nesses, and of the government as well, is of that class so
graphically described in a good Book, (with which, I fear, he
is not very familiar,) as " desiring to be teachers of the law,
understanding neither what they say, nor whereof they
affirm.^'' Certain it is, that he is utterly devoid of that
knowledge of the facts in this case, which is indispensable to
a successful effort to enlighten others, but which, it must be
conceded, is unnecessary, and might be decidedly inconvenient,
to one who, like this writer, is obviously striving, for a sinister
purpose, to manufacture a public sentiment, which could be
created only by misrepresentation, and who doubtless acts
upon the maxim, —

" Where ignorance is bliss, 'twere folly to be wise."

As to Payne, the first of the witnesses " particularly "
referred to in the foregoing extract, he was not, as this writer
represents, an accomplice. He had been the friend of Mar-
shall and Ross, and a joint actor with them against Mr. Niles ;
he was their confidant, and he and they had constantly
planned and executed injuries to Mr. Niles and his property ;
they confided their plans to him, and he was as ready as they
to enter into all the schemes ; he was most forward, being but
a boy of 18 or 19 years, and they older and maturer ; but he
left and went to his father in West Cambridge, a fortnight
before the fire, and in no sense was he an accomplice. But
the District Attorney, knowing him to have been a joint actor
with the defendants, when he was at Eastern Point, and
willing to join with them in any guilty enterprise, and pos-
sessing, what he thought was a guilty knowledge, with his
characteristic liberality, said, that though he was not an
accomplice, yet he was willing and desirous, that the jury
should look upon him in that light ; that they should treat
him, in their judgment of him, precisely as if he had been an
accomplice, and not believe him at all unless they found him


so corroborated, as an accomplice, in the strictest sense of the
word, should be corroborated ; that they should believe him,
only so far as the facts proved independently of him, and
his own appearance, manner of testifying, &c., &c., fully and
entirely convinced their minds of his undoubted present

But suppose Payne to have been, in all respects, as bad as
this writer would make him, and an accomplice, as we have
seen he was not, of the defendants in this case — what then ?
Is the government to be charged with having " used testimony
which no honest party could use, or ought to use," because
such a man, having guilty knowledge of the perpetration of
a crime like that of barn-burning, and who, being ready and
willing to testify to what he knows, is not excluded from the
witness stand, simply for the reason, that, by the perpetrators
of this crime, he was believed to be, or, if you please, was, in
fact, bad enough to be safely entrusted with the secret of their
diabolical purposes ? Whence, ordinarily, I pray to know, but
from just such sources, is the government to obtain any direct
and positive proof as to the authors of such "deeds of dark-
ness " as that of which these defendants stand convicted ?
And yet, I think, I may safely challenge the records of the
criminal jurisprudence of this Commonwealth, to furnish, I
had almost said, a solitary case, of essentially the same
character as the present, in which there was produced, on
behalf of the government, so little evidence, for any cause,
or in any degree, of a questionable character, and so much
that was so entirely above suspicion.

But where is the proof that Payne is the abandoned wretch
that this writer represents him to be ? I venture to affirm,
that, by every candid and impartial hearer of the whole
testimony affecting his character, it will be conceded that its
darkest shade — its worst feature — as developed during the late
trial, was that imparted to it by his acknowledged companion-
ship with Marshall and Ross.

But it is with Payne as a witness, that we are specially
concerned, and of him, in this capacity, I hesitate not to say,
that if, in any witness, standing before the Court and Jury as
an accomplice of parties on trial — these parties constantly
looking him in the face — the marked appearance of childlike
artlessness, entire frankness, quiet self-possession, and pro-
priety of deportment generally, during an extended, and, in
some portions of it, severe and searching examination,


flemanded a decidedly favorable judgment of his truthfulness,
then was such a judgment in regard to Payne, which I heard
uttered and reiterated, simultaneously and repeatedly, while
he was on the stand, and affirmed by almost every one with
whom 1 have since conversed on the matter, — a righteous
judgment. But, in addition to the personal appearance of the
witness, and in strong confirmation of the favorable impression
thus made, we have such corroboration of his testimony, in
several important particulars, as to satisfy any unprejudiced
mind that, whatever else Payne may have been, — or may be
now, he was, on this trial, anything rather than a false and
perjured witness. Two examples of this corroboration must
suffice. Payne swore to a conversation with Ross, some
three weeks before the fire, in which the latter disclosed to
him the fiendish purpose of burning the very barns that were
consumed on the night of February 11th, and also, somewhat
in detail, the plan of operations ; he also swore that shortly
after this Marshall inquired of him if Ross had told him
anything about burning the old hay ricks, and that at first he
said he had not ; but that, after a moment's reflection on the
implication, necessarily involved in this inquiry, of the privity
of Marshall to the whole matter, he thought it safe to repeat
the conversation, and did so. Mr. Kimball the jailer — an
unwilling witness for the government — testified, that in
conversation with Ross on a certain occasion, and in conse-
quence of what the latter had said to him, he remarked, " If
1 were in your place, and innocent of the crime, — I would not
suffer for another's wrongdoing; " to which Ross replied, —
"Mr. K\mhdM,I didriH do it, but I know about it.^^ Another
witness — Dougherty, wholly unimpeached, whose occupa-
tion at the time brought him, for a moment only, very near
the parties engaged in this conversation, — swore that he
distinctly heard Ross say, — '' / didn't set the fire, but I knov)
all about it.''

A second, and, as 1 think, still more striking example of
corroboration of Payne, is all that time and space will per-
mit me to recite. Payne swore that, on being summoned
before the fire inquest, being then friendly to Marshall and
Ross, and, with them, hostile to Mr. Niles, he went to
Gloucester the day before he was required to ; that he imme-
diately sought out Marshall and Ross ; spent the evening
with them ; that, the next morning, he and Ross, having seen
Mary Mansfield go towards the place of examination, agreed


together, to go across the harbor on the ice, and thus get
ahead of her, to complain of her before a magistrate, that she
might be arrested, and thus- prevented from appearing as a
witness before the inquest. And further, that while crossing
the ice together they talked of the fire, and Ross told him
that the thing was done in the manner he had previously
communicated to him. Ross, too, was a witness before the
inquest, and though he at first denied, yet he afterwards ad-
mitted that he and Payne did go across the ice for the pur-
pose of getting the woman arrested, to prevent her being a
witness, and that, on the ice, they did talk about the fire, but,


Online LibraryLooker-on in ViennaTrial of Marshall and Ross for barn-burning : a brief exposure of a systematic attempt to mislead the public mind, and create a false sympathy in behalf of convicted incendiaries → online text (page 1 of 2)