Second Trial Ordered—Smith Continues to Break Chains and Relieved
Himself of Fetters Rivetted on by a Blacksmith—Reads Bible and
Makes Straw Figures—Feigns Insanity when Placed on Trial—Refused
to Plead—Found Guilty and Sentenced to Death.
The term of the Court of Common Pleas was now coming on, which required
much of my attention for the necessary preparations; and Mr. Dibble, the
jailer, being about to remove to Sussex Vale, to take charge of the
Academy there, my situation began to look rather awkward and unpleasant.
Accordingly the jailer moved away on the 11th of March, after the
sitting of the Court, and from the extraordinary trouble which the
prisoner was known to have given, I had little hope of finding any one
who would be willing to take the charge. However I prevailed with Mr.
James Reid (a man in whom I could confide) to undertake the charge of
him; who, with his family moved into the house the day following.
After this, Smith appeared more cheerful, and became rather more quiet,
until the 24th of March, when I was called on by the jailer, who
informed me that Smith was attempting to break through the partition
where the stove-pipe passed through into the debtors’ room. On entering
the jail we found him loose from all his irons,—his neck-chain was
broken into three pieces; the chain from his neck to his feet into three
pieces; the screw handcuffs into four pieces, and all hanging on nails
on the partition. His great coat was torn into two parts, through the
back, and then rent into small strips, one of which he used as a belt,
and supported with it a wooden sword which he had formed out of a lath,
and with which he amused himself by going through the “sword exercise,”
which he appeared to understand very well. The chains from his legs were
disengaged from the staples, and tied together with a strip of the torn
coat. His hand, his feet and his clothes, were all bloody; and his whole
appearance presented that of an infuriated madman. There were present on
this occasion Messrs. Daniel Micheau, Moses Foster, George Raymond,
Walker Tisdale, the jailer and some others. I then raised the staple,
secured him by the leg chain put on a pair of stiff handcuffs, and added
a chain to his neck, stapled to the floor. In this situation we left him
until the 28th, when I was again called by the jailer, who said he
believed he was loose again, and about some mischief.
On entering the jail, I accordingly found him loose,—the chain from his
neck in three parts; he had beaten the lime off the wall with a piece of
his chain three feet long. We left him for the purpose of getting his
chains repaired; at night we added a new chain from his fetters to his
neck, and stapled him to the floor with a chain about four feet long; we
secured his handcuffs to the chain between his neck and feet, so that
when standing, he could not reach in any direction. In this situation he
remained until the 31st, spending the time in singing and hallooing
occasionally. I was then again called by the jailer, who, on opening the
wicket door, found a piece of chain hanging on the inside. I went
immediately to the jail and found that he had separated all his chains,
had tied his feet chain to to the staple again, and was lying in his bed
as unconcerned as if nothing had happened, having a piece of chain about
his neck. We then took his bunk bedstead from him, and removed
everything out of his reach; no link in his chains appeared to be
twisted, nor were there any broken links to be seen; from this we
inferred that he still must have some means of cutting his chains.
At this moment, however, it occurred to us that he might have the broken
links concealed in the privy. We accordingly let down a candle, by which
we could see the bottom, and with an iron hook prepared for this
purpose, we brought up a bunch of broken links which he had tied up in a
piece of his shirt, together with a piece of his neck-chain a foot long.
This convinced us that he had not destroyed his chains by means of
cutting them, but by the application of some unknown mysterious power. I
then determined to break the enchantment, if strength of chain would do
it, and added to his fetters a large timber chain, which had been used
as the bunk-chain of a bob-sled, by which four or five logs were usually
hauled to a mill at once. The chains we had previously used were of a
size between that of a common ox-chain and a large horse trace-chain.
Secured in this manner we left him, and on the 6th of April found his
neck-chain parted again. I then replaced it with a strong ox-chain about
seven feet long, firmly stapled to the timber. The next morning the
gaoler informed me that from the uncommon noise he made in the night, he
was convinced he must be loose from some of his irons or chains. I then
concluded that he must have broken his steel fetters, as I judged it
impossible for human strength or invention, in his situation, to break
either of the ox-chains; but to my utter astonishment I found the
ox-chain parted and tied with a string to the staple, his handcuffs,
fetters, and log chain having remained uninjured. We fastened the
ox-chain to his neck again, by driving the staple into another link.
After this, he remained more quiet, his wrists having been much galled
and swelled by his irons, and bruised and rendered sore by his exertions
to free himself from them.
At this time I received a letter from the Clerk of the Circuit, of which
the following is a copy:
ST. JOHN, March 15th.—Dear Sir,—At length I enclose you the precept
for summoning a Court of Oyer and Terminer and Gaol Delivery in your
County, on Thursday, the 20th of April, for the trial of the
horse-stealer—I also enclose a letter from Major King, for his saddle,
stolen from him at the same time.
Yours, &c.,
WARD CHIPMAN.
To WALTER BATES, Esq., High Sheriff.
After this our prisoner remained for some time rather more peaceable,
and amused himself with braiding straw, which he did in a curious
manner, and made a kind of straw basket which he hung on the partition
to contain his bread. Sometimes he would make the likeness of a man, and
sometimes that of a woman, and place them in postures singularly
striking; discovering much curious ingenuity. At this he would amuse
himself in the day, but spent the night in shouting and hallooing, and
beating the floor with his chains.
On entering the gaol, we discovered the image or likeness of a woman,
intended to represent his wife. He had it placed in a sitting posture,
at the head of his bed, with the New Testament open before her, as
though reading to him, while he sat in the attitude of hearing with
serious attention. I was induced to look into the New Testament, and
found it open at the 12th chapter of St. Luke, and the leaf turned down
at the 58th verse, which read as follows: “When thou goest with thine
adversary to the Magistrate, as thou art in the way, give diligence that
thou mayest be delivered from him; lest he hale thee to the judge, and
the judge deliver thee to the officer, and the officer cast thee into
prison.” It would seem as though he had intended to represent her as
reproaching him for his escape from the constables on his way to
Kingston, while he would defend his conduct by referring to the above
portion of the Scripture. He produced many other likenesses, which he
would place in different significant postures manifesting the most
remarkable ingenuity and invention.
A special Court for his trial had been summoned to meet at Kingston on
the 20th of April; but it was postponed until the 4th of May, on account
of the ice having remained unusually late in the river, as will appear
by the following letter:
ST. JOHN, 5th April, 1815—Dear Sir,—I have received your letter
detailing the very extraordinary conduct of the culprit in your
custody. There is certainly a mystery in this man’s means and
character, which is unfathomable, and I fear there will be
considerable difficulty with him on the trial. Your vigilance and
exertions of course cannot be relaxed. As the best thing to be done, I
dispatched your letter, without delay, to the Attorney General, that
they might adopt, at Head Quarters, any such measures as they might
think expedient for the further safeguard and security of the
prisoner.
Very respectfully yours,
To W. BATES, Esq. W. CHIPMAN.
SUNDAY, 16th April, 1815—Dear Sir—I have just received by express from
Fredericton, a letter from the Attorney General, stating that from the
state of the river, it will be impracticable for him to be at Kingston
by the 20th, and as he has hitherto taken the whole burthen of the
trial upon himself, it cannot go on without him. From the
circumstances, therefore, and as the present state of the travelling
would probably render it dangerous to my father’s health (who is not
now very well) to hold the court this week, he has determined to put
it off till Thursday, the 4th of May, for which day he wishes you to
summon your jury, and to proclaim the holding of the Court. He regrets
much giving you this additional trouble, but it must be attributed to
the extraordinary backwardness of the season, which was not, probably,
foreseen when it was recommended to hold the Court on the 20th of
April. I have not time to forward a new precept by this conveyance,
but I will forward one in time, or the one you have may be altered.
This can be easily arranged when we go up to the Court.
Yours truly,
W. BATES, Esquire. W. CHIPMAN.
The Court was accordingly proclaimed, and at the same time I wrote a
letter, inclosing the proclamation to Mr. Dibble, the former gaoler, to
which I received the following answer:
DEAR SIR—I yesterday received your letter, inclosing your proclamation
of the Circuit Court, for the trial of Smith, the horse-stealer. I
shall be very sorry if Judge Chipman’s health should be such as to
prevent his attending the trial. Should the Attorney General attempt
to prosecute on recognizance for the escape, I think his (the Judge’s)
influence at Court would prevent it. I am quite of your opinion, that
it will be the most difficult case that has yet been before any Court
for trial in this County. As for his behaving much better after I left
the gaol, it was what I expected he would do, to put Reid off his
guard. Those parts of his chains that were hanging in convenient
situations, were powerful weapons, and had Reid come into the gaol
alone, or weak-handed, he would have felt the weight of them. It is
remarkable that the villain with all his art and cunning, should
manage it so ill; and it seems altogether providential that from the
beginning (except his sickness) he has either delayed too long or been
too hasty, which has prevented his escape before, and I hope and trust
will be the same with you. I am sorry for the trouble you have with
him, and confidently hope and trust he will not evade your vigilance.
You are too well acquainted with his conduct to need my advice. I must
claim from you the particulars of his conduct at the trial.
I remain yours truly,
W. BATES, Esquire. W. DIBBLE.
On the 30th of April, I went to the gaol and found Smith lying quietly
with all his irons and chains uninjured, and told him that on Thursday
next, the 4th of May, he must have his trial before the Court for his
life or death; and that Mr. Pearson, the Deputy Sheriff who apprehended
him at Pictou, had come to witness against him; but he paid no attention
to what I said. The second day Mr. Pearson came to see him, and told him
that his (Smith’s) wife had come to see him; but he took no notice of
him, no more than if he could neither see nor hear, and set at defiance
all attempts to extort one single expression, as though he were
destitute of every sense.
The third day we found that he had been at the stone wall, his face
bruised and bloody. I renewed my attempts to elicit something from him
by telling him that the next day he would be brought before the Court
for his trial; but all was in vain. He gave me the most decided
indications of confirmed insanity; patted his hands, hallooed, sang
without articulating, and continued to sing and beat the floor with his
chains the most of the night.
The 4th of May, the day appointed for his trial, being now come, the
Court began to assemble early in the morning, and numerous spectators
crowded from every part of the county. About 11 o’clock his Honor Judge
Saunders, and the Attorney General arrived from Fredericton. About 1
o’clock the whole Court moved in procession to the Court House, which
was unusually crowded with spectators. After the opening of the Court in
the usual form, the prisoner was called to the bar. The gaoler and four
constables brought him and placed him in the criminal’s box. He made no
resistance, nor took any notice of the Court, and, as usual, acted the
fool or the madman, snapping his fingers and patting his hands; he hem’d
and ha’d, took off his shoes and socks, tore his shirt. Every eye was
fixed on him with wonder and astonishment. After the Attorney General
had read his indictment, the Judge asked him how he pleaded to that
indictment, guilty or not guilty. He stood heedless and silent, without
regarding what was said to him. The Judge then remonstrated with him,
and warned him that if he stood mute out of obstinacy, his trial would
go on, and he would be deprived of the opportunity of putting himself on
his country for defence; and that sentence would be given against him;
he therefore advised him to plead not guilty. He still continued mute,
and acting the fool without betraying the slightest emotion. The Judge
then directed the Sheriff to empannel a jury of twelve men, to enquire
whether the prisoner at the bar stood mute wilfully and obstinately, or
by the visitation of God. From the evidence brought before the jury on
this enquiry, it appeared that he had been in the same state for three
months preceding, during which time he could not be surprised into the
utterance of one word. The jury consequently returned their verdict that
the prisoner stood mute by the visitation of God.
The Judge then directed the Attorney General to enter the plea of not
guilty; and Counsel for the prisoner was admitted. The Court then
adjourned till ten o’clock the next morning. The next morning, Friday,
the Court assembled accordingly, and the prisoner was again brought to
the bar, and placed in the criminal’s box as before. He sat down
quietly, maintained his usual silence and inattention. The most profound
silence reigned in the Court, which was still crowded with spectators,
and every eye was fixed on the prisoner with the most eager attention.
The Judge then arose, and observed that the prisoner appeared more calm
this morning, and directed the Attorney General to proceed with the
trial.
After the jury had been empannelled and had taken their seats, and the
witnesses brought before the Court, the prisoner was ordered to stand up
for his defence; hold up his hand, and hear the evidence; but he still
maintained the same disregard and indifference, giving no attention to
anything that was said to him. The constables were then directed to hold
up his hand, but to this he offered the most determined resistance, and
fought and struggled so furiously, that they were unable to manage him.
They then procured a cord and pinioned his arms; but this was of no
avail; he would flounce and clear himself from them all, as though he
had the strength of some furious animal.
They then procured a rope and lashed his arms back to the railings of
the box; but he still continued his struggling, and reaching the
railings before him would break them like a pipe-stem. They then
procured another rope and bound his hands together, and secured them to
the railing in the opposite direction. Finding himself overpowered in
his hands, he immediately availed himself of his feet, with which he
kicked most lustily, and soon demolished all the railing in front of the
box, notwithstanding all the efforts of the constables to prevent him.
Another rope was then procured, and his feet bound each way from the
posts of the box, so that he was rendered incapable of further mischief.
After securing him in this manner, all the constables being in readiness
for his movements, while he himself sat as unconcerned as though nothing
had happened, the Attorney General proceeded to read his indictment, in
which the prisoner stood charged with having feloniously stolen a
certain bay horse, the property of Frederick Willis Knox, Esquire, of
the value of thirty-five pounds. Mr. Knox having been sworn, stated the
manner of his pursuit after the prisoner, with all the circumstances,
until he came to Truro, as has already been detailed. At Truro he
engaged Mr. Pearson, Deputy Sheriff, to pursue on to Pictou, whither he
was informed the prisoner had gone to sell the horse.
Mr. Peters, counsel for the prisoner, on the cross-examination of Mr.
Knox, asked him how he wrote his Christian name—“Willis” or “Wills.” He
answered, “I am christened and named after my god-father, Lord North,
the Earl of Willsborough, and I never write my name Willis.” Mr. Peters
then produced authorities to show where one letter omitted or inserted
in a man’s name had quashed an indictment, and moved that the prisoner
be discharged from this indictment. This move was overruled by the
judge, but was reserved for a question in the Court above.
The witness Pearson having been sworn, deposed and said, that he pursued
after the prisoner the whole night, and early the next morning was shown
the prisoner, and arrested him on suspicion of having stolen the horse,
and told him that the owner of the horse would soon be present. He
seemed but little surprised, and only replied that he came honestly by
the horse. The witness further stated that he then asked the prisoner
where the horse was, who unhesitatingly pointed to the house where he
soon after found him. Witness went on to state that he took the prisoner
before a Justice for examination, and thence to the jail at Pictou. That
he then went to the house which the prisoner had pointed out to him, and
there found the horse; that he returned homewards with the horse about
ten miles, and met Mr. Knox, who immediately knew the horse, and called
his name “Britain.” That they then returned to Pictou, where the
prisoner remained in jail, and on examination was found to have in his
possession a watch, and about fifteen guineas in money, with a number of
watch seals and other articles, some of which it appeared he had stolen
on his way as he escaped with the horse. That he was committed to the
charge of a constable and Mr. Knox, to be conveyed by a warrant from
Nova Scotia to the jail at King’s County, in New Brunswick. That before
he was taken from the jail at Pictou he had cut the bolt of his
handcuffs nearly through, and had artfully concealed it, which was
fortunately discovered, and new handcuffs provided, otherwise he must
certainly have escaped from his keepers before he arrived at Kingston.
The circumstances against the prisoner were, that he gave contradictory
statements as to the way in which he came by the horse; at one time
asserting that he bought him from a pedlar; at another from a Frenchman;
again, that he swapped for him; and at Amherst produced a receipt for
money paid in exchange.
The Counsel for the prisoner, in cross-examining, asked Mr. Knox, did
you ever see the prisoner in possession of the horse! “No; but he
acknowledged it.” “Did you ever hear him acknowledge that he was in
possession of the horse in any other way than by saying he came honestly
by him?” “No.” Mr. Pearson was cross-examined in the same manner, and
answered to the same effect.
Mr. Peters, in defence of the prisoner produced authorities to show that
by the evidence the prisoner was not taken in the manner as stated in
the declaration, and that it was sufficient for him to prove, in a
general way, how he came in possession of the horse, which he was able
to do by a receipt he produced for the money paid in exchange, the best
general evidence that can be given, as such is the common way in dealing
in horses. He acknowledged that if the prisoner had been taken on the
back of the horse, he would then have been taken in the manner as stated
by the Attorney General, and consequently bound to prove how he came in
possession; but in the present case, he himself, or any one present,
might have been in this unfortunate prisoner’s situation; dragged to the
prison, to court and to the gallows, because he could not produce the
person who actually sold him the horse. The prosecutor had not produced
any evidence of the horse ever having been in the possession of the
prisoner, any other way than by his own confession; and he trusted that
the jury would not hesitate to find that the prisoner was not taken in
the manner as stated in the declaration, but would pronounce him, by
their verdict, “Not Guilty.”
The Judge, in his charge to the jury, overruled the plea, by stating to
the jury that his having been taken in the manner, was proved by the
various accounts he gave of his getting possession of the horse, thus
rendering himself liable to prove how he came by him, or to stand guilty
of having feloniously taken him, as stated in the indictment. That they
had heard the witnesses and if, from the evidence and circumstances
before them, they would find him guilty; but if they had any doubts,
that leaning to mercy, they would find him not guilty.
While the jury was out, the sheriff invited the Court and other
gentlemen to visit gaol, where they were shown the irons and chains, and
the situation in which the prisoner had been placed.
The jury, after an absence of about two hours, returned with a verdict
of “Guilty.” The judge then proceeded to pass upon him the awful
sentence of the law, “Death, without the benefit of Clergy;” but the
criminal remained unmoved and unaffected, and continued shouting and
hallooing. The court asked the counsel for the prisoner whether he had
anything to offer in arrest of judgment, or why the sentence of death
should not be executed upon him. Mr. Peters then arose and produced
authorities to show that the present law that took away “the benefit of
Clergy” for _horse-stealing_, was not in force in this colony, and that
it could not be construed to be in force, and must be a question to be
decided in the higher court, where he hoped to have the honor of
discussing it. The judge admitted the plea; but gave his opinion against
him.