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was most respected in the community ; if his loss has left a deep
chasm in society; if his absence has touched many hearts, and he be
mourned over by many friends - still, you are to remember that, be-
fore you affect the rights, the liberty, and the life of one of your
fellow-beings, you must be sure that the great fact of death by violence
was established.
Lord Hale said, in reference to circumstantial evidence, that he
°' would never advise a conviction upon circumstantial proofs, unless,
at least, the body had been found."
Gentlemen, the writers upon law, the expositors of the law, upon
the bench and in the books, have declared that this same caution is
equally applicable to the means of death as to the discovery of the
body. When the body has been fount[, and can be identified, the
first care should be, to see that the proof is clear that that body
ceased to live by violence applied. And if it cannot be shown, by
direct or by indirect circumstances, that the body came to its death by
the agency of another, though strong suspicions may exist, and the
greatest of jealousies may fill the minds of men, still there is a want of
that perfect judicial proof, upon which men-conscientious men,
acting in the discharge of their duty-are bound to proceed.
It is so here, Gentlemen. I do not undertake to say to you that
Dr. Webster can, or that his Counsel can-supposing these remains
to have been those of Dr. Parkman-explain how he came to his
death. We do not pretend to do any such thing. But, Gentlemen,
we do pretend to say that the Government must prove this fact - an
essential fact in the case. And when we say that these marks might
have been inflicted long after death, and that there is no evidence that
they were inflicted before death - when death comes in a thousand
forms: when he might have fallen by the way-side; when some robber
may have seiied the body, and, having plundered it, then, in the
midst of an excited community, searching everywhere, fearful of
discovery, have thought to have taken these remains, and placed
them there - can you say that such was not the case ? or can you
say that these circumstances impel you irresistibly to the conclu-
sion that George Parkman came to his death by the agency of
another person ?
I submit it, Gentlemen, to your calm inquiry; and if the evidence
on the part of the Government, upon this subject, comes only to cre-
ate a strong probability, but does not come up to the clear fact, beyond
reasonable doubt, that this body was slain, there is an end of this
trial.
But, Gentlemen of the Jury, suppose that you pass these questions
by; that you come to the conclusion that this was the body of George
Parkman, and that his death was caused by the violent agency of
another person; what was the crime which was committed in taking
his life ? I shall here, necessarily, Gentlemen, be obliged to antici-
pate ; but I ask you carefully to discriminate.
I am going to attempt to show you, upon the circumstances which
have been developed upon this trial-taking all the Government's case,
and making the worst of it for the prisoner, in their behalf-that the
crime which was committed, if it was committed by Dr. Webster, was
not murder, but manslaughter, because the circumstances warrant the
conclusion that it was the lesser crime. Do not misunderstand me.
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