John Leacock, Coroner, sworn.

Court.—Well, Mr. Leacock, what do you know of this affair? I know very little more, than that while the inquest were examining the child, I discovered that its throat had been cut. Court.—Did you say any thing to her, or ask her any questions? She was asked, how she come to kill her child? and answered, that it was in order to keep it from crying. I was informed by Mr. Bartholomew, that the body was discovered, under some cloaths, in a chest. Court.—Did she say, that she was the mother? I did not ask her. Court.—You say, that she said she cut the child's throat to prevent its crying, when you discovered that it had been cut? It was not me who found it out; it was one of the jury, while they were examining it. Council.—Did she say she cut its throat to prevent its crying, or for fear it should cry? I am not po­sitive, but believe it was to keep it from crying: she said too, that she had done it by the order or express command of the father of the child. She was then asked, who the father was? and she mentioned his name. Court—Who did she say was the father? She mentioned his [Page 2] name. Court.—What name did she mention? She said it was John Shaffer. Court.—What else happened? That is all I know. What child was it, male or female? It was a female child. Did it appear to be a likely child? Yes. Was the hair and nails grown, and did it look as if it had come to its full time? The hair and nails were grown, but I did not examine it particularly, as I made no question but it had gone the full time. Is the prisoner at the bar the same woman that you then saw? Yes. Did you ask her if it was born-alive? Yes: she was asked several times, but always said it was born dead. And was she not then asked, if it was born dead, what was her reason for cutting its throat, and she answered it was to prevent its crying? I believe that question was asked, and she might have answered so; but I could not hear, as there were a great number of people in the room, so that I was crouded up in a corner, as the room was but small. Attorney-general.—If the room was so small you could hear the better, I should think. Council.—Did she say whether the child cried or not? No: she said it was born dead. Was the child cold or warm, when you was there? I did not feel it. Did she say she cut its throat for fear it would cry? Yes, I think she did. Did she mention any arguments which the father had used to induce her to commit such a crime? I know nothing further: Captain Bullfinch was there, and he heard what she said on that subject. Did you take any examination in writing, at the time? No. Well but you should on such important occasion. I did not know it was necessary.

Mrs. Mary Bartholomew sworn.

Court.—Are you the mistress of that woman? Yes, Sir. Court.—Look, and see if it is the same. She is, Sir. When did you discover her to be with child? About five or six months ago. Did you charge her with it? Yes, Sir. Did she own it? No: she said she was not. Did you charge her more than once? Yes; but she constantly denied it. What happened the morning that she was delivered? I don't know, for I did not see her till twelve o'clock, when I went up to her, and she complained of being unwell. Had she not been up that morn­ing? Yes: she got up and made the fire in the parlour, and afterward she went and laid down. What did you say to her, when you went up? I asked her what was the matter? and she said she was poorly. I told her that I suspected she was with child, but she denied it. Well, what further? I then left her, Sir: I thought she was in that situation, and seemed to suspect she was in labour. Was she laying in the bed, or on the bed? She was lying under the clothes; in about an hour I went up again. What did you discover then? She seemed much the same: I asked her the same question, and she told me again, that she was not with child: I went down directly, and in about a quarter of an hour I went up again, and she asked me for some old cloaths to put on: she told me that she felt better. Where was she when you came up? She was walking about the room: I told her I suspected she had a child, but she denied it still; but I searched about in the closet, and in the [Page 3] chimney. Council.—Did she appear disturbed while you was search­ing? No: she said nothing. Where was the child found? My sister-in-law found it in a trunk in another room. Did she bring the child to the mother? Yes; she brought it herself. Well, what more? I re­tired from the room. Did you see the child? I just cast my eye on it. Court.—Did you see any wound upon it? No: I saw none. Well, what further? [Mr. Bartholomew said they were all so affected, that they could not bear to remain in the room. Mrs. Bartholomew was also much indisposed.] Did you discover any blood about the cloaths? No. Council.—When you said she asked you for cloaths, did you un­derstand cloaths for herself, or for the child? For herself. Sergeant, being council for the prisoner.—When she asked you for old cloaths, did she not let you know that she had a child? No, Sir. Sergeant.—Had she sufficient cloaths always before? Yes, Sir. Sergeant.—Pray, did you know of her having received any hurt, previous to her delivery? Yes; about a month. Sergeant.—You'll please, Madam, to relate the circumstances to the Court and Jury. About a month or so before, she fell down the cellar-stairs, with a log of wood in her arms. Ser­geant.—Was she much bruised by the accident? Yes, Sir, a good deal on her hip. Sergeant.—Do you know of any other hurt she received? She was hurt a few days before. Court.—Did she complain much of the bruise? Yes, Sir, she complained for a week or two after. Did she keep her bed? No, Sir. Todd, being also council for the prisoner.—Pray, Madam, where was the girl, when you went up to see her, about twelve o'clock?—Was she in the garret or second story? She was lying on a bed, in a room on the second story. Is that the usual room where she sleeps? No, Sir. Who sleeps in that room? My bro­ther, and the boys of the shop. Sergeant.—Where was you about the time she was delivered? We were eating dinner in the parlour. How far is that room from where the girl lay? The room was exactly over­head; we were in the room under her. Todd.—Is the ceiling of the room high or low? It is middling. Is it not one of those old-fashioned houses, where the ceilings are built much lower than is common now? Yes, Sir. Were the doors open? Yes; the room-door was open. Sergeant.—Did you hear the child cry? No: I heard no noise at all. Sergeant.—Don't you think you could have heard the child, had it cried? I believe I could. Sergeant.—Was she ever in bed in that room before? No. Attorney-general.—Where was the room in which the child was found? It was opposite to this, and on the same floor. Did you hear her when she carried it there, and put it into the chest? No. Sergeant.—Did she appear very ill, when you first saw her? Yes; she was very poorly. Todd.—This is the room, you say, where the boys usually lodged? Yes. Sergeant.—Did you know whether their razors were lying about? Yes; they were in the window: there were two razors laying there. Sergeant.—How came she to go into that room? After she had made a fire in the morning, I suppose she found herself unwell, and went in there to lay down: I know no other rea­son. [Page 4] Attorney-general.—You say it is about five or six months ago that you first suspected her to be with child: pray, from what symp­toms was it that you suspected? From her appearance. Was there no particular symptom, or something in her conduct, which led you to suspect? Nothing but her being a little sick, and from appearance. Attorney-general.—What, sick at her stomach? Yes. Attorney-gene­ral.—Did you employ a Doctor for her, when she fell down stairs? No: she was not confined. Attorney-general.—She went about as usual, and did middling well? She kept up and went about all the time, but still complained. Attorney-general.—And how has she been since she was delivered, pretty hearty? I don't know; she went from our house shortly after. Attorney-general.—At the time you first sus­pected her being with child, you said you founded your opinion upon her appearance; do you mean by that, that you discovered it by her bulk? Yes. Sergeant.—Her bulk, Madam, was not the first cause of your suspicion, but her sickness, and afterward her bulk? Yes, Sir. Sergeant.—Can you set the time, when you first observed this? Not exactly. Attorney-general.—When you perceived her sickness, did you not also observe her increase of bulk? No; not then.

Miss Mary Bartholomew sworn.

Court.—You found the child? Yes, Sir. Where? In a trunk in the room opposite to where she was: it was wrapped up in a petticoat belonging to her. How did the child get in the trunk? I suppose she must have carried it there herself: when I was searching about in the trunk, I asked her what was in the petticoat? when I laid my hand upon it; but she said nothing. Was the petticoat at the top of the trunk? No; it was under a large roll of linen. Did she say any thing, when you asked her what was in the petticoat? No. Whether did she desire you to open the petticoat or not? No: she opened it herself, and laid it upon the bed aside of her: I asked her if she had killed the child? and she said, Yes: I asked her how? and she said she had laid on it, but could not help it. Council.—Did you discover any marks of violence upon the body? No. You saw the child? Yes: she opened the petticoat, and laid the child with it on the bed, and sat by its side. Did nothing further happen? The Jury was sent for, and came in, and I retired from the room. Attorney-general.—Did it ap­pear a fine, plump child? I am not a judge: I can't say any thing of it. Todd.—Can you recollect the time the child was brought out of the trunk? It was about two o'clock. Todd.—After you discovered the child, was not she left alone with it? Yes: I went down to speak to my sister. What length of time was you absent? I believe about ten minutes. Court.—When you put your hand upon it in the trunk, did it feel warm? Council.—If your Honor pleases, she says it was wrapt up in a petticoat. Well, did you feel it warm through the petticoat? Yes, Sir, I believe it was. She took the child in the pet­ticoat into the other room? I believe she did. How long did you stay with her? About ten minutes. Todd.—And then went down for ten [Page 5] minutes? Yes. Did you see any blood about the child? (After some hesitation) No: none. I mean about the throat? I did not examine. Did you think it was dead, when it lay on the bed? Yes. Court.—Had it hair and nails perfect? I can't say: I believe it had nails. Ser­geant.—Pray, Ma'am, do you know any thing of a hurt she received? Yes: she received a hurt in fetching up a log of wood about two months before. Council.—Was it one or two? I can't tell exactly. Attorney-general.—She went about tho' as usual? Yes; but still com­plained. How long? For a few days.

Samuel Bullfinch sworn.

When I went up into the room, I found her sitting on the floor, with the child leaning over her arm; she kept its head close down on its breast. The Inquest asked her, if she had used no violence to the child? and she said, No. It was the first time she had ever had a child, and she believed she had overlaid it. At this time there ap­peared no marks of violence, or they were not discovered. Mr. Na­glee, or Norgrove, (we don't know which he named) was the first, who, on examining the child, discovered that the throat was cut. He asked her, how the throat came to be cut? and she said she did it herself with a razor. She was asked, where the razor was? and I un­derstood that one Bryan O'Connor, and some other, had been there, and taken it away. However, the razor was produced, and she was asked, if that was the razor? She said, Yes. We asked her, how she came to cut its throat? and she said, for fear it should cry, and the family would hear it. I observed to her, that if the child was born dead, as she said it was, that there was no occasion to cut its throat. Sergeant.—Did the child appear bloody? No; it appeared as if it had been washed. Sergeant.—Did she say the child was born dead? Yes: she persisted in it, that it was born dead; that is, that she overlaid it. Sergeant.—Had it the appearance of having come to maturity? Why, I thought it appeared plump and hearty. Sergeant.—Do you recol­lect, whether she said any thing further? Yes; she said she was told to do it. Court.—Did she say by whom? Yes. Sergeant.—Did she mention any promises that had been made her? She said some were made. What were they? She said that he promised her, if she made away with the child, she should have her time purchased, and he would set her at liberty. Sergeant.—Did she say she was to be pro­vided for? Yes: she was to have fine cloaths, and to live like a lady. Jury.—Whose name did she mention as the father who had promised this? John Shaffer, and said it was him who had desired her to cut the child's throat, or make away with it.

Doctor Jones sworn.

What I have to declare in the present case, is merely matter of opinion founded on observation, and what my profession teaches me to decide. I saw the mother a few minutes after the Inquest had been held, and she informed me it was born dead. Attorney-general.—You are not to relate what she said afterward, as that cannot be received as [Page 6] evidence. Well then, Sir, from the size and appearance of the child, I saw enough to convince me that it was not born alive: it is true its throat was cut, and it had been taken away from the mother, and pre­served in spirits by Dr. Foulke. Attorney-gen.—Doctor, pray when did you see the child first? The day after the Inquest. Attorney-gen.—If that is the case, it can have little to do with the subject. Why, Sir, an opinion is as well to be formed from the size of the child then, as at the first minute—And I am convinced it was not a full grown child; for it was too small, and there was little hair on its head, not near so much as when an infant has come to its full time of birth. Attorney-general.—But is not the mother a very little woman? No: she is not very little; she is about the middling size. She is very young tho'? (Her age, Mr. Milne who brought her up, said, was seventeen, wanting two months.) Attorney-general.—Is this a subject on which you can form an opinion perfectly satisfactory to yourself? Yes, Sir; and of which I have no doubt. Was the windpipe cut through from side to side? Yes, it was, and the other large vessels were separated; and it must have killed the child, had it been alive at the time; but I am of opinion it was dead, and born dead from the accident which had hap­pened to its mother, and from the size and appearance of the child. Attorney-general.—Can you, from appearances or such circumstances, determine whether the child was born dead or alive? Yes: I can de­termine for myself, and am perfectly satisfied of the conclusion. This child had not the appearance of a full grown child; it was of too small a size, and had not the usual quantity of hair on its head, and the inferior limbs were much too small, if compared with the nobler. How long may the infant remain in the womb after it is dead? I have known instances of their being retained a long time. Could it be a month? Yes; more than a month or six weeks either. Sergeant.—Suppose, Doctor, a child to be born dead, would it bleed on cutting its throat? Yes; and many persons do bleed after they are dead, on opening a small vein only. Attorney-general.—But, Doctor, not after having lain so long as a month or six weeks in the womb? No; I don't say that: much depends on the habit of body, and there are various constitutions. This child does not appear to be within two months at least of its full time. Court.—But did you never see a seven months child make a good man? I don't say so: there are certainly such, but they are to be found very seldom. Sergeant.—Can you judge better from the comparative size of the limbs than from the length of the in­fant? Court.—Did the child appear to have fallen away much, when you saw it? No. What was the cause of its premature birth? The mother told me, that she had received a very severe fall in lifting a log. Attorney-general.—You must not repeat what she told you. Well but, Sir, it was confirmed to me by the testimony of her master; and soon after she said she was seized with the pains of labour. Attorney-gene­ral.—Did this conversation happen on the same day she was delivered? It did? Attorney-general.—But we have nothing of this second hurt in [Page 7] testimony. If you have not, I suppose you will; for I understood she had received two falls, and the Jury will be satisfied in this point, when they come to hear her master; and I understood she had a fall, or severe strain, the very morning of her delivery.

Doctor Foulke affirmed.

I was called upon by the Coroner and the Inquest, to examine the dead body of a child supposed to have been murdered. Before I got there, several persons on the inquest had examined and found the throat cut. The murder of the child was no longer with me a question, at least so far as the efforts of the mother had been able to effect it; and I left the Coroner and Jury to do their duty in an affair which appeared so clear and plain. But after they had left the room, I returned to examine the mother, and to explain to her, her dangerous situation; but I was induced to doubt the validity of my first opinion, when she informed me with respect to the time of conception, the time of deli­very, the circumstances which prematurely brought on the birth of the child, and from the appearance of the child afterward; from all of which considerations I believe myself absolutely justifiable in declaring that the child must have been born dead: the delicacy necessary to be observed, will make me say as little as is possible on this occasion. With regard to the time of conception, it must have been about the latter end of the month of September. Attorney-general.—How do you know that? The girl told me so. Attorney-general.—But you are not to repeat what she told you. Then, from the appearance of the child, I believe it to be only a six or seven months conception, which brings it to about that time. I keep the child for the purpose of exa­mining it fully, and of shewing it to Doctor Jones: the Honorable Court, and the Jury may see it also if the Court pleases; and by re­ferring to it, they will be able to judge for themselves in some degree from its size. Attorney-general.—Does it not lessen by being kept in spirits? It does not grow bigger. Attorney-general.—But does it not lessen? Yes, something. Attorney-general.—Does it much or little? But little: when Doctor Jones saw it, it had not lessened, for I was obliged to extract it with forceps from the jar in which I put it. Ser­geant.—From all the circumstances you have mentioned, do you say you are justifiable in concluding that it was born dead? I do. Pray, when was you called in? About two hours after the child was born. Attorney-general.—But you then was not of opinion, that it was born dead? Whent I went, and saw, and heard that she had cut the child's throat, I formed my opinion on that circumstance only, and I believe the Inquest did the same without enquiring whether it was likely to have been born dead or not. Court.—You say from its size, that it was not a full grown child; are not some children smaller than others? Clearly, Sir, this is not a child that ought to be produced by its mo­ther, after nine months gestation. Court.—Do not children live who are born at seven months? Children have lived who were born at six months; but such examples are very rare, and seldom happen, and [Page 8] cannot affect the present question: they are like monsters—I don't mean that they are deformed, but they are not perfect, and are extra­ordinary things, rarely to be met with, not one in a hundred.—I have compared this child with several others which I have preserved, (as I have them of almost every period of conception) and I find that it is not the child by two or three months, which ought to be released after nine months gestation. Sergeant.—Do you believe a dead child might bleed on having its throat cut? I do: the blood of children is much finer and more fluid than that of men. Such are the dispositions of nature, in accommodating the cause to the effect; the blood of in­fants circulate through innumerable subtile canals, which a more gross fluid would obstruct: but it is not only the throat of a child that would bleed on being cut after it was dead, but also of a man, or indeed of any animal. Attorney-general.—Did you discover any blood about the child, when you first saw it? I did a little, not more than is cus­tomary; for it is well known that more or less is always discharged by the mother on these occasions—This is a subject that delicacy and re­spect makes it difficult to speak of—but the Honorable Court will ex­cuse me. Court.—It is necessary to be explicit, and relate things as they are, so that you stand in need of no excuse. Sergeant.—Did she say the child was born dead? Yes. Attorney-general.—You are not to say any thing she said, after the Inquest had sat. I believe the gen­tlemen have related that they heard her say so. The reason why I did not, was, the woman was then in such a situation of body and mind, that humanity and every generous feeling for an unhappy creature for­bid to add to her pain and care, and therefore made it expedient to leave the room: but afterward when the poignancy of her distress might be alleviated, I called and attended to her narration, which I am not, you say, to relate. Sergeant.—Did she appear very feeble? She was setting up, but then it was necessary she should, as the room was much crouded, and the people pressing about her. When I had heard her relate the particulars of her situation, I went home, and made notes of it, from which I could explain my several reasons for concluding, that the child could not be born alive. [Mr. Bullfinch was called, and asked if she said it was born dead? He answered, Yes; and that she had lifted up the lid of its eye, but it fell down again—This she said before it was discovered that the throat was cut.] Ser­geant.—Did you observe, Doctor, that the limbs of the child were not proportioned? Yes: the hands, arms, legs, and other inferior limbs, were too small when compared with the others. There are too, many circumstances of evidence, which would confirm the justness of the conclusion drawn by Doctor Jones and myself, with respect to the child's having been born dead: there are also other matters which I could mention, but from the delicacy and tenderness with which it is requisite to speak on this subject. Court.—Our great object is inform­ation, and nothing should prevent our obtaining the fullest. Well, then, as this woman was delivered alone of a feeble and imperfect child, [Page 9] and as she informs me, she lay upon her back at the time of its birth, then had the child been alive, but come in the common or ordinary way into the world. You know that it is necessary that its eyes, its nose and mouth, in short its face, must have been towards the posterior parts of the mother, and in this situation of release—it is more than probable that the child might have been smothered in the birth; nay, it is a certainty, that it must have been smothered from the want of as­sistance to extricate it, and from its long continuance in that situation▪ Court.—Did she seem to be affected for the loss of her child? She seem­ed to me to have lost herself much; she stroaked it, and looked at it, but I thought not with that maternal tenderness, which she should have discovered on such an occasion: she shed no tears for her loss; not that I esteem the shedding tears an essential to constitute tenderness. She began to appear sorry, when I was about to take the infant from her. Court.—Did she say why she cut its throat? Yes: she said that John Shaffer, the fat Shaffer, was the father of it, and he had persuaded her to kill it; if she did, he would purchase her freedom, and that he was to marry a fine woman, and that he would make her then as happy and as fine as his wife, and that if she did not do it, she should suffer immense­ly—but if she did, she had nothing to fear, for there was no heaven or hell, no God or devil that he knew better than any body else, as he possessed more learning than any other man, and had travelled in Eu­rope; and to encourage her, he said that it was no harm, and he had persuaded a milk-girl to do the like once before. I examined her to know the time of her conception, and she told me that it was some­time after her master went to live in Church-alley. She remembered▪ it was sometime in the latter end of September, when she first was de­bauched by him on their lot, and that she soon discovered her situation; that she went on as women usually do, until about three weeks before her delivery, when she was helping in with a cord of wood, she re­ceived a considerable injury by the fall of a log upon her hip; that two or three days before she was delivered, she unfortunately met with a fall down stairs, when her master saw her; that she found herself in­disposed in the morning, and strained herself in getting up a large back­log, which immediately hastened on the labour-pains, and an abortion came on about two o'clock; that she was in great agony until then, and she after that laid quiet half an hour, when she took it up in her arms, and lifted its right eye-lid, but which fell down instantly: she there­fore suspecting that it might be dead, and recollecting the promised re­ward offered by Shaffer, and her promise to him, and fearing that it might cry and alarm the family, she took up a razor laying by accident in the window by the bed-side, and cut its throat through, and cut even the very bone; but the blood that discharged, was very small, and there must have been some mistake about its being washed—for when I saw it, it was as is usual with children after their birth; but perhaps the rags, or things it had been wrapped up in, might have ab­sorbed some, and given the appearance of wiping or washing. She [Page 10] said she laid still half an hour after the birth; if so, there can be no doubt but it was dead, and she declared that it neither breathed or or cried. Court.—You say you have the child yet; how is it pre­served? In a glass jar, and I'll send it, if you please, to the Jury. Can't it be brought to Court? Yes, Sir. Todd.—If your Honors please, it can be sent to the jury-room. Court.—If we please to see, why may we not? Well, Sir, I will send it.

Accordingly the child was brought into Court, in a large glass jar, and Doctor Foulke had sent with it a pair of forceps to extract it, if it should be deemed necessary.

Nathaniel Norgrave sworn.

I went up stairs and found the girl setting up, and the Jury were there; I was on the Inquest also. When I saw the child was dead, I asked her if she knew who was the father? She answered, Yes. And asked her what his name was? She told me John Shaffer. I told her that she should be careful in what she said, and not charge any body unless she was certain of them. Council.—Did you ask her how she was delivered? Yes; and she said she was delivered upon her back. I asked her if she heard the child cry? and she said No. I asked her if she had told her master, that she was with child? and she told me No. I said she ought, and not have concealed it. I left her a little while, when I returned, and examined the child, but could discover no marks of violence upon it, until I happened to lift up its head, and then I perceived its throat was cut from here to here, [making a motion with his hand across his throat.] I then told her, that she had murdered the child, and deserved to be punished. I asked her how she did it? and she confessed she did it with a razor. I asked her where it was? and was informed that one O'Bryan, or O'Conner, or some such name, had taken it away; but the razor was got, and I looked at it, and saw it had been wiped, but still there was some little blood left on the point. I asked her how she came to destroy the child in that cruel manner? and she said that she was directed by the father, and told to pinch its throat, which would effectually destroy it. She told me, that he was concerned with her in Church-alley. I asked her when she had seen him last? She said she had not seen him lately. I asked her if she had seen him since he was concerned with her in the alley? and she said she had several times, but not lately; she believed he was not in town. I asked her particularly what Shaffer it was? and she told me the one that married Chavilier's daughter. Sergeant.—Did you ask her if the child was born dead? No: she said it was dead, and I asked her why she cut its throat when it was dead? It seemed as if nature had helped the birth, for it came very plain. What do you mean by its coming very plain, that it was come to its full time? I believe it was very near about that. Did she say she was delivered on her back? Yes; but I know it could not be so, and I told Doctor Jones, that it could not be born in that way without help. Attorney-general.—And what did Doctor Jones say? He could not say much, be­cause [Page 11] he knows it is so very well. Sergeant.—Do you know any thing of these matters? Yes, a little: I served my time to it. Sergeant.—Very well, then you can tell me; do not children cry, when they are born into this world? Yes; they generally do. Attorney-general.—What time do you suppose this child to have been conceived? Was it come to its full time? I believe that it was a child of about seven months or so. Sergeant.—When the girl said the child was born dead, was it before or after you found its throat to be cut? I did not say that she said it was born dead. Sergeant.—We understood it so. But I did not say so. Attorney-general.—Are not women generally worse, and more feeble, after a miscarriage than after a natural birth? Yes; they commonly are.

Mr. Bartholomew sworn.

Court.—Where do you live? At the corner of Market and Second-street. Was it in your house this unfortunate accident happened? Yes. How long have you lived there? It is near nine months. Did you bring up the girl? No, Sir: I have had her about three years; she was brought up by Mr. Milne, my wife's father. Did you not live in Church-alley? Yes: I moved in there about eight or nine months ago. How long did you live there? Three months. Sergeant.—Do you know any thing of any hurt the girl received before this accident? Yes; somewhere about a month before she was delivered, it could not be a week under or over, she fell down with a stick of wood in my hearing, and when I went to see what was the matter, she was sitting crying, and complained she was hurt much. Again, about three nights before this happened. Court.—What, before the other acci­dent, or before her delivery? Before her delivery, Sir. We had moving narrow steps to go into the cellar, and I went myself, and held the candle to light her down to bring up a stick of wood; and in lifting or getting up the stick, she fell down, and the stick fell upon her: she cried, and sat several minutes before she got up. She said no more afterward, nor I heard no more about it. Court.—Did you see the child? Yes: I saw it, but did not examine it. Did you ever enquire of her, if she was not with child? Yes: I have charged her often with it. Attorney-general.—Did you discover she was with child from her bulk? Yes. When did you discover it by her bulk? Before we left Church-alley. Attorney-general.—And how long have you lived where you now reside? Near nine months. How long did you live in Church-alley? Three months. Sergeant.—What, Sir, is it nine months since you left Church-alley? No; it is about seven months. I had both houses at once—the one at Market-street I occu­pied for a store—the one in Church-alley was my dwelling house. Court.—And how long is it since you moved into the shop? About nine months. Sergeant.—The Court mean to ask you, how long since you moved your family into the shop? It is somewhere about six or seven months. Attorney-general.—Can't you tell exactly? It is somewhere thereabouts—but I could tell exactly, if I had my receipt-book [Page 12] here; because I paid my rent in Church-alley to the day I re­moved. Attorney-general.—Can't you get that receipt? Yes; if I go home. Attorney-general.—You had better go and fetch it.

Whereupon Mr. Bartholomew went to fetch it; but before he re­turned, the Council had gone through much of their pleadings, and he was only examined touching the time; when it appeared he had went into Church-alley the 2d of August, and left it the beginning of No­vember.

The Council and Attorney-general having finished their pleadings, his Honor the Chief Justice gave a charge to the Jury.

Murder, Gentlemen, is the highest and most heinous crime against the law of nature, and it is greatly aggravated when the parent de­stroys its own offspring; but it is denied that the child was murdered by its mother, because it was already dead: yet you find so far as her efforts could effect its destruction, she exerted them unpitying, and void of maternal affection.

This case, which has been ably discussed, was heretofore described by the laws in this manner—That whenever a single or unmarried woman was delivered of a child, and attempted to conceal it, the bare concealment was made conclusive evidence against the mother, that she murdered it, unless she could make it appear by one evidence at least, that the child so concealed was born dead: so that when this probable proof was in evidence, it was incumbent on the prisoner to prove posi­tively that the child was born dead, or did not die through her means or procurement; otherwise she was adjudged guilty, and suffered the penalty affixed to murder. This act of James—was recognized by the Assembly of the State; and had the prisoner been tried under that, there could not be the least doubt but your verdict would determine her guilty. But now, by a late act of Assembly, passed last Septem­ber, a further kind of proof is required, and the bare concealment is not sufficient, unless there is a probable presumption offered, that the child was born alive. You have heard this kind of proof already ex­plained—That there are two kinds of evidence. The first is positive proof, where the witness can swear to the commission of the fact: this sometimes is attainable, yet but seldom in cases like the present. The second division is circumstantial proof—This you have heard divided into three kinds. First, Violent presumption, which is the stronger kind, and such as amounts to nearly full conviction, or of which the mind can enntertain no doubt. As in a case, where you see a man greatly confused, endeavouring to make his escape out of a house, with his naked sword bloody in his hand, and a body lying on the floor newly slain—This I say amounts to a violent presumption that the man en­deavouring to escape, is the slayer. Second, There is probable pre­sumption, which is not so conclusive, or satisfactory as the former. And thirdly▪ There is slight presumption, but which, in capital cases, is seldom allowed, if by itself, any weight in criminating the prisoner, or much regarded by the Court or Jury. Beside the case I have men­tioned, [Page 13] you have heard others adduced by the Council; but among the rest there is this kind of evidence—the confession of the party upon being apprehended, and this, when other circumstances are strong in its support, amounts to as full a conviction; I say it is so strong that no doubt can be had of the criminality, or hesitation left upon the mind, than would had you heard a witness come forward, and have sworn that he saw the perpetration. The evidence, I say, would be strong and conclusive in the instance which was mentioned by the Council, where a man should be robbed of twenty guineas, and that exact sum be found upon a man with two pistols, the one loaded the other discharged—This, I say, would leave no doubt on your minds with respect to the criminal. But this is not the circumstantial proof required in this case. The law would not require this kind, because it is not to be had; for people determined upon the commission of the crime of infanticide, always are silent and alone for the purpose of con­cealment, as they would hardly be so callous or fool-hardened, as to commit it in public—Therefore positive proof can rarely be come at in such cases. The concealment of the child, as I have already re­marked, was deemed sufficient evidence of its being murdered, though the Courts and Juries in England and here, for this many years, have always required some circumstantial evidence beside, or they acquitted the prisoners; and this law has long been deemed to savour of severity. Therefore the Legislature have altered the law in this respect, so as to make it correspond with the already established practice of their Courts of Justice, and have required the second degree of circumstantial evi­dence to convict the prisoner.

It was observed by the Attorney-general, that her persisting in the denial of her being with child, even when she was in labour, and her having made not the least provision of cloaths for the infant, and as she chose to be delivered alone, when she might have had the assistance of her mistress and other women who were by—These, with the further circumstance of her cutting its throat, (and as you are informed by one of the witnesses, from ear to ear) with her endeavour to conceal it, by placing it wrapped up under a large roll of linen in a trunk—I say, if when you take and weigh all the circumstances together, you are of opinion, that it amounts to a probable presumption that the child was born alive, you can be at no loss to decide that she was guilty in the manner and form in which she stands indicted; and as it is incumbent, as I observed before, upon her to prove it was born dead, you will examine what testimony relates to this particular. There is her own relation of the story; she several times said it was born dead, but then added also that she had overlaid it, and on the Inquest's finding the throat cut, she owned having done that, but it was to prevent its crying. Again, there is the deposition of the Doctors, who, as pro­fessional men, and as gentlemen eminent in their profession, declare, that they are convinced the child was born dead from the circumstances of its appearance, and from a consideration of the hurts which the mo­ther [Page 14] had received, the one about a month before, another three days before, and a strain the very morning of the day she was delivered, as well as the circumstance of her being delivered on her back. I say, if you are satisfied that the child was killed by any of these accidents, then you must acquit, as the cutting of the infant's throat, already dead, cannot be accounted murder in the mother. It is for you, gen­tlemen, to weigh and consider the matter of fact; but I would observe to you, that when you are sworn to give a true verdict from the evi­dence which shall be laid before you, you are not bound to give that verdict upon the opinion or judgment of any man however eminent.

The Jury, after an absence of about three hours, returned, and brought in their verdict guilty.

On the morning of Saturday, when she was brought up to receive sentence of death, a motion was made by Mr. Todd, and supported by Mr. Sergeant, that the Court would be pleased to grant a new trial, as an affidavit was produced, in which Mr. Edward Pole, one of the Jurors, had said the day preceding the trial, that he did not see how any person could bring in a verdict otherwise than guilty, (or words of like import.) This it was contended, would have been good cause of challenge, had it been known at the time; and if cause of challenge then, it should be allowed of weight now. Some law-cases were ad­duced, wherein new trials had been granted for similar reasons. The Attorney-general contended it ought not to be allowed for three reasons: the first was, that no new trial was ever permitted in capital cases like the present: 2d. That a person's giving his opinion, was not cause of challenge; so that if not cause of challenge, no pretence could be set up for a new trial: and 3d. If it had been cause of challenge then, it was now too late. This was replied to by Mr. Sergeant, and the point conceded, that tho' no new trial had yet been had in capital cases, yet the Court had power to grant one, if it saw good cause. To the second point he replied, it was cause of challenge, and no doubt could be re­ceived into the breast of the Court and Jury, but what if it had been known in time, they would have challenged him; if not for cause, they would without cause, (as every person has a right to challenge twenty of the 48 Jurors peremptorily, and as many more as he can show cause for.) Of the third point he observed, that as the Court had the power to allow a new trial, it could not be too late.

The Court gave it as their opinion, that the expressions used by Mr. Edward Pole were not sufficient cause for the court to grant a new trial, and the girl then received sentence of DEATH; but since has been respired by the Honorable Supreme Executive Council.

James Byrne sworn.

About the middle of November my house was broke open, or ra­ther entered, by opening the padlock of the cellar-door with a false key. The goods mentioned in the indictment were taken away; some of which were got again, as next morning I got a search-warrant; and on searching a cellar in the neighbourhood, we found them. A man was in the cellar at the time, who seemed anxious to get away; but whether it was the prisoner or not, I cannot positively say. After we were searching about sometime, O'Neil came down, and as soon as he saw we had discovered the goods, he ran away: I followed him with a great number of others; and when we returned, I found that this man had also gone off, but I cannot swear to the person.

John Goss, Constable, sworn.

I went with Mr. Burns to Coleman's cellar, and there we found this man: I am sure of the fellow, I know him well enough sure—they call him Jem Long Splice, Elias Long Jem. When we came in, we looked about for the cloaths; up the chimney there was a hole, which came down again, and I went to examine it—But Mr. Burns thought it not worth while; he said it was not his first loss, for he had been robbed twice before; but I did not care, I would do my duty: so I hunted about, and I went toward a tub that was turned over, and this Jem—aye I know you well enough—this fellow—your Honor—was standing with his back against them. After finding them this same jockey wanted to be off—but I would not let him out of the cellar. Council.—Did not this Elias, or Long Jem, go out of the cellar? Yes, your Honor, Yes—but that was afterwards, when we went to pursue O'Neil. Council.—Did not you intend to seize this man, before you discovered any part of the property? Yes; for I knew he was a great rogue as any from Ireland. This O'Neil, when he came in, shook hands with him, and run away as soon as he discovered we had found the goods. I seized this one by the collar, and told him not to stir; but he did not heed me, and sprung up the cellar-steps, I believe he touched nothing, for he can run as fast as any man I ever saw. Coun­cil.— [Page 16] Did he struggle with you when you seized him? No I coaxed him, and told him not to go. Council.—Did you find any part of the property upon this man? No: but he was standing so, with his back­side to the tub, hiding it. [He turned round to shew the Jury.]—Court.—You need not turn your's upon us. Council.—You say this man is a rogue, because he shook hands with O'Neil; is it not usual for Irishmen to shake hands, or to kiss, when they meet? No: the Irishmen don't kiss, that's the French outlandish way, but they shake hands.

George Elton sworn.

He went with Mr. Burns to the cellar, and saw two or three men there, and believed the prisoner at the bar to be one of them. He did not hear him say any thing; when O'Neil run off, he followed him, and knew nothing more of this man.

He [...] Fenner sworn.

Last November as he came along Front-street, he heard a terrible crackling of fire, and observed a light in Coleman's cellar-window: he looked down, and saw Coleman and his wife, and some other man; they were counting wet cloaths—and the man asked Coleman's wife, where she would put them? and she said down the hole in the chimney, but they should drink first; they had a bottle, he thought, of rum, out of which they took a dram a-piece; they then tied up the cloaths in a bundle, and seeing one of them coming toward the door, I went away. Council.—Did you see the prisoner in the cellar? No, Sir, but next day the goods were found.

The prisoner delared himself innocent, that he had only been a short time in this city, whence he came from Baltimore, and that it appeared to him as if Goss would swear any man's life away.

The Jury brought in their verdict not guilty.

After being advised by his Honor the Chief Justice, of the dangers to which men are exposed, who keep bad company, and cautioned to be more careful in future, in the choice of his associates, he was or­dered to be discharged upon the payment of his fees.