William L. (William Leete) Stone.

Letters on masonry and anti-masonry, addressed to the Hon. John Quincy Adams online

. (page 38 of 49)
Online LibraryWilliam L. (William Leete) StoneLetters on masonry and anti-masonry, addressed to the Hon. John Quincy Adams → online text (page 38 of 49)
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The counsel for witness replied that the absence of such
positive evidence was no reason why the witness had not
cause to fear, — for the very object of the inquiry might be
to elicit such evidence, — and the answer of the witness
might have a tendency to render him infamous, or disgraced,
and he would therefore submit to the court whether the wit-
ness should answer the question.

The court ruled, that it was not sufficient to entitle the
witness to the privilege claimed, that the answer might

have a tendency to render him infamous or disgraced ; the

question must be such that the answer to it will show di-
rectly the infamy, and the court must see that such will he
the case, before the privilege will be allowed. As to the
objection that the answer of witness may have a tendency
to implicate him in a crime or misdemeanor, or expose him
to a penalty or forfeiture, the court remarked, that the wit-
ness cannot be compelled to answer any interrogatory that
will involve him in a criminal prosecution. If the court
were satisfied that the answer of witness w^ould furnish di-
rect evidence of his own guilt, or would establish one of
many facts which together would warrant his conviction,
then the privilege would be allowed. But the witness can*



LETTER XL, 445

not set up such a defence unless he knows that his answer
will so involve him. To entitle to the privilege, the answer
to the particular question put must so involve the witness in
an indictment. On the trial of Aaron Burr, for treason, a
witness was shown a letter in cipher. He refused to an-
swer whether he- knew it or not ; — and the case before us
is similar.

The counsel for the witness remarked, that the cases dif-
fered, — because the witness is here asked whether he knew
the defendant was consulted anterior to the trial. The
court replied, that the witness must claim the privilege
when in danger ^ Burr's case was not like the present, —
there the concerting was a crime— not so here. The coun-
sel for witness further objected that the witness did not rest
his refusal to answer on the misdemeanor, but on the ground
that a murder has actually been committed. Some inquiry
would then be had.

The Court said, " you must establish that point : every per-
son who helped take off Morgan, would not be liable to an
indictment for his murder, as that crime might have been
committed in pursuance of other and subsequent counsels."

The counsel for witness suggested that if it v^^ere shown
that the witness was at defendant's house consulting with
persons on the subject of Morgan's abduction, it might be
against him — it would bring home to him a knowledge of
the transaction.

The court replied — you think that this question may be
followed up by others that would involve him in a criminal
prosecution ; — when such are put to the witness, he may
refuse to answer — but he takes his stand too soon.

Messrs. Griffin and Barnard, counsel for the defendant,
contended that the question was improper in regard to the
defendant, as the form of it obliges him to answer as to a
matter of fact. Can the witness say that defendant was
consulted if he had only the confession of the defendant ?



446 LETTER' XL.

And should the witness answer the question put to him in
the affirmative, the counsel may follow it Up and interrogate
him as to the manner of his knowing it. . If, then, he should
be required to answer, he might divulge the fact that he
communicated with the defendant himself— and thus crim-
inate himself and become liable to a criminal prosecution.

The Court again addressed the witness and told him that
his privilege must be overruled, and that he must answer
the question. Witness — " I will not answer." Court — " I
" shall punish you then." — Before directing the clerk to en-
ter the rule. Judge Marcy observed, that the witness was
liable to be indicted for every contempt, — and that each
one must be entered on the record, as he should direct the
District Attorney to find bills for each refusal separately.

The following record was then entered on the minutes
of the court.—

" Orsamus Turner, a witness in the cause of the People v. EzeJciel JietoeM,"
having refused to answer the following question, " was the defendant one
of the persons consulted with in relation to separating Morgan from his
friends at Batavia, as a means of suppressing the contemplated publication
of a book concerning the secrets of Freemasonry," — after the court had
decided, that it was a legal and proper interrogatory for him to answer: —
The court do adjudge, that by such refusal he is guilty of contempt in open
court. It does, therefore, sentence him to pay a fine therefor^ of two hun-
dred and fifty dollars, and be imprisoned for the space of thirty days in the
jail of the county of Niagara."*

The examination of the witness being resumed, he was
asked — "Do you know that the defendant consented or
" agreed to prepare the magazine at Fort Niagara for the
" reception and confinement of William Morgan ?" — The

♦ During Turner's confinement he was supplied by his masonic friends
with every luxury that the country could furnish, and that money could pro-
cure; he was constantly visited by his masonic brethren, and their wives
and daughters ; and at the expiration of his term of imprisonment, was con-
ducted from the jail to his residence in a coach and four, with attending
Masons, shouting at the triumph of crime over justice !



LETTER XL. 447

witness refused to answer this question. It being nearly the
same question as the other, he feared it might involve him
in a criminal prosecution. — By the court — "you are asked
whether the defendant did agree to prepare the magazine."
— The witness replied that it was a leading question, and
he could not answer it without danger.

The counsel for witness requested permission to consult
with him. — The court remarked, that the witness had im-
bibed strange and erroneous ideas, — that the court wished
to preserve the rights of the witness, but that the rigor of the
law must be enforced, if he refused to answer questions
pronounced to be proper ones by the court, from which he
is alone to receive the law.

The counsel for the witness thought the answer would
involve him in an indictment for murder.

The question, at the suggestion of the court, was varied
and put in the following form, — " Have you heard the de-
" fendant confess or admit that he had consented or agreed
" to prepare the magazine ?" Witness answered that he had
not — never heard him say that he had consented that the
magazine should be used for the confinement of William
Morgan. — ^The second question being again put, he an-
swered that he had no positive proof of it, — but refused to
tell what proof he had — and urged the same objections as
before.

The witness was then asked, " Do you know whether
*' the defendant was applied to for a place in or about Fort
" Niagara for the purpose of confining William Morgan ?"
— Witness refused to answer and claimed his privilege.
The court decided that he must answer. He still refused ;
whereupon the court proceeded to pass sentence on the wit-
ness for contempt — and he was sentenced therefor to impris-
onment in the jail of the county of Niagara for thirty days.
The witness not having property, the fine was not impos-
ed, as it would mitigate the punishment on the indictment.



448 LETTER XL.

The examination of the witness being again resumed, he
stated that he never heard defendant, in conversation w^ith
others, one or more, admit that such application had been
made to him,-r-never heard defendant say that he had
agreed, to' prepare a place for Morgan, — and did not recol-
lect positively, that, in the presence of the defendant, he
had heard any person say, that the defendant had so
agreed — and did not know that the defendant was present
when the propriety of carrying off Morgan was discussed.

Witness being asked, " Have you ever been present at
" a conversation between two or more persons, at which
'* the defendant was present, on the subject of confining
" Morgan ?" refused to answer. The question being va-
ried, was finally put thus : " Were you ever present when
" the subject of preparing a place at Fort Niagara, or at
" any other place in the county of Niagara, was discussed
" in the presence of the defendant ?" The court decided
the question to be a proper one, and directed the witness to
answer it ; — but he urged his privilege, and refused — and
the court thereupon ordered another entry to be made of
contempt, and sentenced the witness to an imprisonment of
thirty days.

The examination being again resumed, witness was ask-
ed, " if he did not go to Fort Niagara in September, 1826,
" and see Jewett ?" but he again refused to answer. He
was then asked if " he did not swear so before the grand
" jury ?" The counsel for witness objected to the question,
and it was not pressed.

Eli Bruce was now called as a witness, but refused to
be sworn, saying, " he was once before sworn and exam-
*' ined, and no good came of it." The court adjudged him
guilty of contempt in open court, and sentenced him to im-
prisonment for the space of thirty days, in the jail of the
county of Ontario, — the witness being then a prisoner in
the custody of the sheriff of that county, and having been



LETTER XL. 449

brought up to testify in this cause by a writ of Habeas
Corpus.

John Whitney being called as a witness, refused to be
sworn. The court sentenced him also- to imprisonment of
thirty days, and to pay a fine of two hundred and fifty
dollars.*

John Jackson was the next material witness called upon
this trial. He will be recollected as the person who went
to the magazine, in company with Giddings, on the morn-
ing after it was believed Morgan had been confined in the
fort. On being sworn, he was asked whether, on the morn-
ing of the 14th of September, 1826, he and Giddings, or
Giddings alone, went to the magazine, but he refused to an-
swer the question,believing it to be an improper one, which
might subject him to an indictment for an oftence of high
magnitude.

The court said he could not be prosecuted for the cfonspi-
racy ; a prosecution for that oflfence is barred by the statute.

Griffin — Witness does not wish to disclose the act for
which he fears a prosecution ; this is the very thing he
wishes to conceal.

Court — Do you suppose it would involve you in a pro-
secution for murder ?

The witness answered that he did not know how far it
would affect him ; did not know it would involve him in a
charge of murder. He had been told by Mr. Spencer, that
if he would tell all, he would protect him.

The Court — The witness cannot first presume an offence
to have been committed, and then claim a privilege not to
answer a question, on the ground that such answer would
involve him in a prosecution for a presumed offence. The
witness must know that a crime has been committed, before

♦ While these sheets are passing through the press, I learn from a Lock-
port paper, that Bruce and Whitney have both been tried this spring, oii-inr
dictments for misdemeanors, in so refusing to be ^sworn, and have each been
fined therefor in the sum of two hundred and fifty dollars.

57



450 LETTER XL.

he can claim the privilege. To claim the privilege on mere
presumption that such a result would occur, rendered wit-
ness guilty of perjury. If, how^ever, witness would brave
heaven and earth, and commit perjury, it could not be help-
ed. By answering, the witness need not admit that he
murdered Morgan ; but he must know it beyond a doubt.

Barnard — Every man in the community believes that a
murder has been committed.

The witness now requested permission to confer with
counsel, which was granted. On his return, he still refused
to answer the question. The court repeated that witness
must be well satisfied that a crime had been committed, be-
fore he could claim the privilege.

The counsel for the people here asked witness if he did
not testify on this point in open court, at Canandaigua?
Witness replied that he answered the same question, or one
of like import, on the trial of Bruce.

The court decided that if witness had once waived his
privilege, it could not grant him the privilege now.

Question repeated. " Did you go to the magazine on the
" morning of the 14th of September, 1826, before you went
« to Lewiston ?" Witness, after again consulting counsel,
said he did go towards the magazine, in company with ano-
ther person : might have gone within one rod of it ; it was
not defendant who went with him.

Q. " What was your object in going to the magazine ?"
Witness refused to answer, and the question was waived for
the present.

The question next put, was this : — " Was any thing car-
•* ried by the person who went with you to the magazine ?"
And here I think I can in no way convey to you so correct
an impression of the character of this extraol-dinary trial,
as l^y quoting the residue of the examination of Jackson, as
.?:reported by Mr. Cadwallader, of Lockport, and furnished



LETTER XL. 45L

me by Judge Marcy. After the last mentioned question
was put, the examination proceeded as follows: —



" Witness thinks there was ; don't recollect exactly what; thinks he had a
basket in his hand ; don't recollect that he e.'.w what was in it ; it was co-
vered up with a cloth or brown paper ; did not see him carry a vessel with
drink in it ; does not recollect that he did so at any other time ; witness thinks
he did not carrj' a vessel containing drink towards the magazine ; it was a
small basket. The other man went up to the magazine; thinks he did not
see that person go into the magazine. Witness had to go by the window to
return ; the man did not return with him ; can't say positively that he saw
him come back ; saw him when he was within a few feet of the house ; can't
say whether he had the basket. At the magazine saw the man go towards
the door of it ; did not see any door unlocked; the outside door, which wit-
ness saw, he thinks was down, or partly opened ; the person was a little
ahead of him ; did not see him enter ; can't say positively but he did enter.

" Witness was next asked ' if he heard the person with him speak to any
person in the magazine?' He objected to answering. The court decided
that he must answer. Witness answered * he did ;' a person in the maga-
zine replied : thinks he did not hear a noise before or at the time he stopped;
don't recollect that the first he heard in the magazine was the above answer;
don't recollect that the person on the outside called the one in the magazine
by name ; don't recollect that he spoke to him as one he already knew.

" To a question, * What was the conversation that passed between the
person on the outside and the one on the inside ?' counsel for defendant ob-
jected, on the ground that defendant might be implicated by conversation to
which he was not a party, or which was not held in his presence. The coun-
sel for the people disclaimed any such intention : they did not wish witness
to detail aught that would criminate defendant, unless he were present: they
wished justice to be done, and nothing more. The court then instructed the
witness not to repeat any conversation that would go to implicate defendant,
unless it was held in his presence.

" Witness answers to question, that he ' dont recollect :' something waa
said : most forgets what : the import, to the best of his recollection, was *to
clear, to be off.' He " took the substance to be ' clear out,' and he did clear
out." Thinks the voice came from the magazine ; he did not stay for an an-
swer to be given ; he dropped what he had and ran : he dropped *a gun, a
fowUng-piece : got the fowling piece from Giddings : don't know that it was
loaded : the person with him requested him to take it along: took itjor the
purpose of going a hunting: had before concluded to go to the installation,
eight miles ! put a bag on him to carry the game in ! the person he went
with said, * let us go a hunting'' This was after breakfast. The voice
witness heard caused him to run| it * scared him!' thinks Giddings replied to



452 LETTER XL.

it ; don't recollect the substance of the reply, nor any part ; recollects the
reply was very loud; don't recollect that it was threatening ; the object of
the reply might have been to order the man to be quiet ; can't be positive
whether it was or was not ; his language might have been that of a man
speaking in a commanding or threatening manner ; it is his impression that
it was to induce silence on the part of the man in the magazine ; heard the
voice, and then told his companion he would stay no longer, thinking it best
to be off; thinks the voice was as before stated ; don't think he staid to hear
the reply of his companion ; was surprised to hear the voice from the maga-
zine in that manner ; might not have been surprised if he had heard an ac-
companying voice ; it was the manner of the voice that induced him to run ;
lodged at his friend's house the night before ; don't recollect a carriage com-
ing to his house, nor near it, nor about it ; don't recollect now that any men
came to the house that night ; he was told so ; had no knowledge of it.
Witness before that time had been introduced to Colonel Jewett ; does not
recollect that he saw him at the fort the evening previous, nor before he went
to the installation ; in the morning the steam-boat was at the dock going to
Lewiston ; Giddings's family was going up ; Giddings was the man he went
with to the magazine ; believes the fort was left in care of Giddings ; when
the troops went off, Giddings was left in charge of the fort, some time be-
fore September, 1826 ; at the time of the installation, Jewett resided at the
mess house at the fort ; can't swear that he had charge of the fort at that
time. Witness went to the installation in the forenoon ; thinks he saw de-
fendant at Lewiston, and had conversation with him ; don't think he inform-
ed him of the noise ; had ' special orders' when he left Giddings ; heard a
noise in the magazine before he went to Lewiston , it was a few minutes af-
ter the first time ; it was a human voice; when he last heard the noise he
was passing by the magazine to go to Lewiston ; had an errand to do there ;
he was requested to inform certain persons there, that the man in the maga-
zine was making a noise ; Edward Giddings gave him the errand ; witness
did not communicate it to defendant at Lewiston, nor in his presence ; don't
know that it came to Jewett's ear that the man was confined in the maga-
zine, except by hearsay ; witness was requested to communicate his mes-
sage to certain persons who were named ; more than one or two ; not to the
whole installation; not to the defendant, nor to any one living at Lewiston.

" Witness don't recollect that the man that went with him to the maga-
zine had any weapon; he spoke about a pistol; he had a pistol ; don't know
as it was loaded ; when near the magazine, the man spoke to the person in
the magazine ; thinks he said, * be still ; be quiet ;' never recollected that
any thing was said to the man in the inside about the pistol. Witness com-
municated his errand but to one person at Lewiston. When the man in the
magazine said * be off!' Giddings wanted witness to stop. The man that
witness communicated his errand to at Lewiston, started to go to the fort.

" Cross-examined. Giddings at the houso had a pistol ; can't say he saw
it after they itarted,"



LETTER XL. 45S

Theodore F. Talbot and Bates Cooke were examined, as^
to the appearances of the magazine, in March, 1827, when
it was visited by them, as a committee of examination.
They described the strength of the apartment, and the
marks of violence, as though some person had been confin-
ed therein, and made strong and violent exertions to force
the way out. .

A number of witnesses were introduced, among whom
w^ere Hiram Hubbard, Mrs. Hall, Cory don Fox, Mr. Perry,
Robert Mollineaux, and most of those named on the for-
mer trials, proving the abduction, and all the particulars of
the journey from Canandaigua to Niagara ; but in looking
over several columns of the testimony, I find no facts, not
already mentioned, worthy of note.

William P. Daniels, was likewise called again upon this
trial. He knew Solomon C. Wright ; but on being asked
if he was as Wright's house on the evening before the in-
stallation of the Lewiston Chapter, — (that is, when Morgan
was brought thither in the close carriage, and guarded in
the barn,) — he refused to answer the question, on the ground
that it might implicate him in a more serious crime than
that of a misdemeanor, — an indictment for the murder of
Morgan, as an accessory before the fact. The court again
explained the law, as in the instance of Turner's refu-
sal ; but the witness still refused to answer. He also, for
the reason above given, declined answering the inquiries
whether Eli Bruce, [and Jeremiah Brown, were at Wright's
on the occasion referred to. The court here again inter-
posed, and emphatically remarked, that unless the witness
was altogether certain, from evidence other than that gene-
rally known, that there was a murder committed, and that
he would be in danger of being indicted for it, upon the
knowledge afforded by his answer, he was guilty of perju-
ry, in claiming the privilege. " It is, therefore," continued
the court, " a question of perjury or not with you, — and



454 LETTER XL.

" remember, if the laws of man cannot reach you, the laws
« of God will!"' The witness then replied: — "that he
" claimed his privilege only and directly upon the ground
" that his answer to the questions would, as he believed, im-
" plicate him in tjie murder of Morgan." This, he answer-
ed, he said " under his oath, and with an understanding of
*' the question."

Daniels was then asked if he had seen Elihu Mather or
Jeremiah Brown driving a closed carriage along the Ridge
Road, on the 13th of September, 1826. He objected to
answer, on the same ground as before. The court decided
that he must answer the question. He then consulted his
counsel, after which he replied — " no." Being farther press-
ed, he replied that he now thinks he saw a close carriage
pass, but does not know who drove it. Being asked if he
knew that Eli Bruce was in that carriage, and pressed
closely upon the question, he again consulted his counsel.
He afterwards replied that he believed Eli Bruce was in
the carriage. Being further pressed, he acknowledged that
his belief was so strong that he had no doubt that Bruce
was in the carriage. He was at the installation, but did
not recollect seeing the defendant, (Jewett,) there. He
might have talked with Jewett afterwards, about the con-
finement of Morgan in the magazine.

Hiram B. Hopkins, the former deputy of Bruce, was like-
wise sworn. In addition to the circumstances testified by him
on the former trials, he now disclosed the fact, that when he
was exalted to the Royal Arch degree, in the month of Au-
gust preceding the abduction, he was informed after taking
the obligation, of the intention of Morgan to disclose all their
secrets. He was told that means would be taken to sup-
press the book, and he was charged " to govern himself ac-
'* cordingly."

A great number of additional Matnesses were examined,
to prove a variety of corroborating facts and circumstan-



LETTER XL. 455

ce^ of the case, which it would be a waste of time to enu-
merate. It was proved that the defendant was the person
in charge of the fort and public property, at the time of
Morgan's confinement ; but the prevarications and refusals
to answer, of the most important witnesses, whose testi-
mony, if honestly given, would beyond a doubt have estab-
lished the direct and positive guilt of the defendant, left the
case deficient in afiirmative lestimony sufficient to warrant
a legal conviction. It will be seen by the sketch I have
presented, that whenever a question was put, bearing hard
upon the conspirators, it was either evaded, or, after con-
sultations with counsel, not answered at all, on the ground
of privilege.

The cause was summed up by Messrs. White and Bar-
nard for the defendant, and Messrs. Whiting and Birdseye
for the people.

I have been obligingly furnished by Judge Marcy with
the notes of his charge to the jury in this case, and regret
that I have not leisure to transcribe it for your perusal.
The judge said it was an important cause, but derived its



Online LibraryWilliam L. (William Leete) StoneLetters on masonry and anti-masonry, addressed to the Hon. John Quincy Adams → online text (page 38 of 49)