USA > Rhode Island > Providence County > Providence > State of Rhode Island and Providence Plantations at the end of the century : a history, Volume 3 > Part 16
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One of the greatest of Rhode Island orators among members of the bar, as well as a man whose reputation was of national extent, was Tristam Burges. This portion of the history of the State is not the plaec to sketeh his life or to tell of his services to the State or Nation. Aside from his matchless eloquence he possessed a force that in argu- ment or debate swept all before him. Rhode Island owed mueh of its reputation in the halls of Congress to the ability and personality of Mr. Burges. As an orator his style was ornate and in the highest degree rhetorieal.
The name of Thomas A. Jenekes is properly associated, as far as relates to eminence at the bar with its predecessor. Both as a lawyer and a jurist Mr. Jenckes was a great man. It is related of him that while engaged in the study of the law he wrote to a friend in a desponding mood, expressing a doubt whether he would ever be able to master the difficult seienee of the law. He was admitted to the bar in
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1840, and carly found himself in the possession of a large professional business. Thenceforth he was engaged in the most important litigation in the State, and was to be found upon one or the other side of almost every case involving any point of importance to the manufacturing or social life of the State. He had a large practice in patent cases and soon attained a very high reputation among the patent lawyers of the country. For this class of cases he was well equipped, being a good mechanic, mathematician and chemist, and his subtle and powerful intellect was attracted by what Judge Story called the metaphysical questions of patent law. He was the private secretary of the council that surrounded the governor in the Dorr troubles, and one of the secretaries of the convention that framed the present constitution of the State. In 1863 he was elected to Congress. He entered the House of Representatives with a great reputation, to which he added much during his term of service. He took charge of the bankrupt act and secured its passage. In the committee on patents he performed much labor and rendered important service. His knowledge was varied, accurate and minute. His knowledge of books covered all classes. In all ways he was one of the representative members of the bar and of the State.
No mention of early lawyers would be complete that did not include the name of Joseph M. Blake. . Mr. Blake was born in Northfield, Massachusetts, on July 13, 1809, and died in Bristol on November 8, 1879. Mr. Blake succeeded the late Albert C. Greene as attorney- general of the State. The latter had held the office for eighteen years, and when his successor took up the duties of the position some doubt was expressed as to whether he would be able to fulfill them. This doubt was soon dispelled. Mr. Blake had genuine dramatic power. His attitudes, the tone of his voice, and every incident in the case were . all carefully regulated by him. From the beginning to the end of the trial he was the central figurc. One instance of this was shown in the trial of a case at Newport. Mr. Blake's client had brought suit against an insurance company. There were strong cquities in his favor, but there were some technical difficulties in the way. Mr. Blake perceived early in the trial that the court was against him so far as the law of the case was concerned, and he got into a controversy with the court in the course of which the magistrate lost his temper. When he came to his argument Mr. Blake made no allusion to the adverse rulings of the court, but dwelt at great length upon the prerogatives of Rhode Island juries and their right to take the decision of cases into their own hands. He made some very complimentary remarks about the court, in the course of which he took pains to inform the jury that the judge came from another State and was, perhaps, not fully imbued with Rhode Island ideas of justice and equity. This line of argument in-
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flamed the temper of the court, and in his charge he ruled strongly against the plaintiff. The jury returned a verdict for the plaintiff, nevertheless, and the foreman was heard to say as he left the court room : "We will teach that New Hampshire judge that he can't tell Rhode Island juries what kind of a verdict to render". He was accus- tomed to make long arguments before a jury, and had been heard to say that he never meant to stop until he saw that all the jury were with him, or he saw that some were dead set against him. This rule is certainly a valuable one to follow at the present day, but imposes rather too much of a trial upon the patience of the court. It may be that such arguments as these were the cause of the adoption of the present rule limiting counsel in their arguments to the jury. At least Mr. Blake felt the effect of the rule and resented it. When he was about to commence his argument in a case he was reminded of the adoption of the two-hour rule relating to arguments. He paid no attention to the remark, and when the chief justice said, "Mr. Blake, your time is up", the latter said with an air of astonishment, "What time does your honor refer to?" "The new rule", said the court. "Is that rule published anywhere?" said Mr. Blake, in a tone of earnest inquiry. "Not that I know of", said the chief justice. "Then", said Mr. Blake, quoting the great historian, "miserable is the condition of the people where the laws are not promulgated". He was allowed a dispensation and went on with his argument. On an- other occasion he was pressing a point upon the attention of the court that had been previously decided, when the judge said: "Mr. Blake, take your seat". Rising to his full height, Mr. Blake said: "I shall not do it. Your honor has the right to forbid me to speak, but you have no right to dictate the position that I shall occupy in the court room". A consultation with Mr. Blake was a legal education. His memory was a vise which held the minutest circumstance connected with the case in its grasp. If a question of law was under discussion he showed an entire mastery of its principles, and he could cite the case in which the point had been decided, giving the name of the judge who pronounced the decision and frequently the page of the volume in which the case was reported.
An article upon the judicial history of Rhode Island would hardly be complete without a reference to some of the noted trials which from time to time have occupied the attention of the courts of the Colony and State, and have become a part of the history of the State. Many of them are extremely curious, bringing out to light the peculiarities of early procedure, the eccentricities of court and bar, and the habits of early litigants, as no other account, however detailed or painstaking, can do. Others are noteworthy from the strange circumstances at- tending them. The space allotted to this paper will not permit of any extended notice and we shall speak of but few, taken from the records
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of the past two centuries. The trial of Thomas Carter for the murder of William Jackson, in 1751, was long remembered, owing to the tragic circumstances which attended it. At this time crimes of the enormity of the one in question were rare. This one awakened the sympathy of the whole continent and even reached the mother country. Carter owned a vessel, of which he was master, and sailed from Newport, where he resided, to New York. He was wrecked on Long Island and lost all, and borrowed money to defray the expenses of his return. He landed on the Connecticut shore, and on his journey home, on foot, he fell into company with one Jackson, a Virginian, bound to Newport, driving a horse laden with dressed deer skins, for sale, the proceeds to be invested in Narragansett horses for the home market. He was dressed in wash-leather small clothes, snuff colored jacket and red duffel overcoat, a saw-backed hanger at his side, and a watch with a green ribbon for a chain. Both being destined for the same place, they traveled together, passing New London late at night. On the 31st of December they arrived at South Kingstown and stopped at a tavern. The next morning Carter complained of indisposition and did not rise until noon. In the mean time Jackson was anxious to depart, that they might reach Newport before night. Unsuspicious of Carter's intention, Jackson delayed his departure at his solicitation, procured Nash the keeper of the hostelry to shave him and cut his hair. At the time Nash's wife observed a particular black spot differing from the other hair, and saw some linen marked W. J., and at Jackson's request sewed some buttons on his overcoat with untwisted thread. He showed a bag of money weighing five or six pounds. In the afternoon they left. Carter procrastinated the journey by stopping at every shop and tavern on the way and calling for liquor frecly, until evening, assuring Jackson that there was time enough to reach the ferry and take the earliest boat for Newport in the morning. When passing a hill prior to reaching the ferry, Carter stated that it was too late to reach the ferry before all were abed and no admission could be obtained, and persuaded him to remain in an untenanted house by the road, Jackson still being unsuspicious of any evil intention. But the loneliness of the deserted house inspired him with uneasiness, and he began to reflect upon the circumstances which had passed, and complained to Carter that all things did not appear right, that he could not sleep and insisted upon proceeding. Carter tried to dissipate his fears, but without avail. He insisted upon proceeding, and when they left the house Carter struck him with a stone and felled him to the ground. Jackson begged for life, but Carter seized his hanger and dispatched him. After rifling him he took the dead body on his shoulder and carried it a mile and deposited it under the ice in the southern arm of the Petasquamscut River, and in cutting the hole he broke the hanger. On his return he concealed the great coat in the wall, covered with
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snow all appearances of the murder, and proceeded to Newport with the plunder. He slept at the ferry house the remainder of the night, but fearing some evidences of the deed might be seen, he early in the morning returned. On his arrival a hunter by the name of Hazzard, being on an excursion, was near the spot. The dogs scented the blood and yelled furiously. Hazzard inquired of the stranger what blood that could be. Carter replied that it must be blood of some deer. Hazzard said there were no deer in that part of the country. Carter became enraged and ordered him to call off his dogs and pursue his course or he would meet with trouble. Hazzard, being afraid of the man from his appearance, did so. Carter returned to the ferry, made some idle excuse for his absence, exhibited great uneasiness and hur- ried to Newport. Although he had time to escape, he was the earliest every morning at the ferry wharf to inquire, "What news from Nar- ragansett?" On the 22d of February, about seven weeks after the murder, the body was found by some fishermen; yet Carter had never attempted to fly. On the 23d he was arrested, and some of the deer skins, watch chain and linen marked W. J. were found in his posses- sion. He was examined, but denied all the circumstances, was eom- mitted and tried in April, 1751. Twenty-seven witnesses were ex- amined against him, which elicited all the facts before stated. Con- scious of his guilt and expecting to be convicted, he had prepared his mind for the verdict and heard it pronounced without apparent emo- tion; not even a muscle moved. But the additional sentence changed the whole scene. It was then the law that if the criminal was guilty of an aggravated homicide, or one without palliating circumstances, the court might add to the ordinary sentence that the body should be hung in chains. For this he was not prepared, and when it was an- nounced from the bench he lost all self-possession, beeame entirely un- nerved and cried out for mercy, exclaiming that it was entirely too hard. He was executed May, 1751, and his body was suspended from an iron frame.
Another of the celebrated early trials was that of Thomas Cornell for the murder of his mother. The Cornell family was well known. In February, 1673, Thomas Cornell was living on his farm at Ports- mouth. His family consisted of himself, his wife, two sons, his mother, seventy-three years of age, and two laborers. The mother had a room to herself, with fire and bed, with an outer and inner door. On February 8, 1673, she was found dead on the floor in her rooms, with her clothes a good deal burned and her body scorched by fire. A coroner's jury, which was forthwith empaneled, rendered a verdict on the testimony of Thomas Cornell and his hired man that she came "to her untimely death by an unhappy accident of fire as she sat in her room".
Subsequently, an examination of the body having led to the dis-
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covery of a wound on the upper part of the stomach, the jury was again empaneled and gave verdict that she came to her death by the fire and the wound, but incriminated nobody. The public mind was still, however, occupied with the mystery. Stories of trouble between the mother and her son got afloat. The magistrates took up the inquiry and prosecuted it. Thomas Cornell was arrested and bound over to the Superior Court. He was indicted there, and on May 12, 1673, he was tried and convicted, and the same day sentenced to be hanged on May 23, 1673, and in the mean time it was ordered that he should be kept manacled and securely fastened to the great chain and that a strict watch, consisting of four by day and eight by night, should be maintained about the jail. On the appointed day he was executed. He died making no confession. In the short interval between the sen- tence and its execution a singular thing occurred, namely, a petition to the General Assembly, presented by his friends in his behalf, for leave to be buried by his mother. Doubtless he meant to have the petition regarded as a solemn protestation of innocence; for it is abhorrent to nature for a murderer to desire to be buried beside his victim. The Assembly denied the request, but as a favor to him, granted his friends permission to bury him on his farm, provided that he should be buried within twenty feet of the common road and that the Colony be at liberty to set up a monument on his grave, the interment otherwise to be under or near the gallows. This was in keeping with the object at that time sought of making the offender an example to the community, not only by his ignominious death, but by keeping his body, either hung in chains or interred in a public place, a constant reminder of his crime and the expiation paid by the offender to the community. After his death the Assembly voted to release his estate from seizure, empowering the Town Council of Portsmouth to take and apply it to the payment of his debts and for the relief of his wife and children.
But, after all, a lingering doubt seems to have haunted and troubled the public mind, for immediately after the execution the Assembly passed a vote ordering the recorder to record the proceedings and testimonies in the book of trials, where they remain to be read to this day. Apparently, however, the testimony recorded is not the testi- mony given orally at the trial, but rather the examinations and affidavits taken at the inquest and by the committing magistrates. The purport of the testimony was as follows: On February 8, 1673, late in the afternoon, Thomas Cornell spent an hour and a half alone with his mother, in her own room. According to his account he spent the time in conversation. He came out into the adjoining room and began to wind a quill of yarn, and after winding about half a quill was sum- moned to supper. At the close of the meal his wife sent his son Edward to ask his grandmother if she would have some milk boiled for
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supper. The child went, and seeing fire in the room on the floor, came running baek for a candle, giving the alarm. Immediately the hired man ran into the room, followed by the boy with the candle, and then by Thomas Cornell and his wife. When the man entered the room he saw the fire on the floor, and stooping down raked it with his hands. He likewise saw a human body lying on the floor, and in the faint light emitted by the eandle supposed it to be an Indian, drunk and burned, and took it by the arm and spoke to it in the Indian tongue. At that instant Thomas Cornell coming up behind the boy with the light, saw and exelaimed : "Oh, Lord, it is my mother". The body was lying on the left side, the back to the bed and the face toward the window. The elothing of the body had been partly woolen, partly cotton; the woolen is reported to have been burned, the cotton left. There was no fire about the bed, but the curtains and valence were burned. The outer door was observed to be fastened. The wife of Thomas Cornell testified that when they entered the room a large dog was there, which leaped out over her son ; but this singular occurrence does not seem to have attracted the attention of any other witness, and it is not credible that it could have happened. The hypothesis suggested by Thomas Cornell to account for the accident was that his mother's elothes took fire from a coal falling from her pipe as she sat smoking in her chair. It does not appear, however, that any pipe or pieces of pipe were found on the floor, and it is difficult to believe if a coal fell from her pipe and set her clothes afire that she would have burned to death without cry- ing for help loud enough to attract attention. Moreover, how did the fire get extinguished in the curtains and valence, if it was set by acei- dent ? But, on the other hand, it seems scarcely credible that Thomas Cornell, after killing his mother, would have imperiled his house by setting fire to her garments and leaving them to burn unwatched. The hired men relate two suspicious occurrences which happened at the time of the tragedy. They say that one or both of the children were generally with their grandmother in the evening, but that this evening neither of them visited her room. And they say that the grandmother when well usually took her meals with the family, but that this evening she was not even sent for as at other times. Her absence was so unusual that one of them asked the cause of it, and was told by Thomas Cornell that it was because they had nothing for supper but salt mack- erel, which she could not eat; it made her so thirsty in the night. But the witness stated that she used to be called at other times when they had maekerel. There was also testimony going to show that she had a claim for rent against her son Thomas, which she had vainly tried to get him to pay, and that sharp and rankling words had passed between them. It was likewise in proof that she had been treated with negleet and indignity ; had been vaguely threatened by her son, and forced to perform unseemly services, and that she had been heard to say that
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she intended to go in the spring to live with her son Samuel, but feared she would be made away with before that time. Once she had even been heard to hint at suicide. And finally, a witness, who visited Thomas Cornell in jail in company with his wife, testified that wife and husband conversed apart and that she overheard one say to the other: "If you will keep my secret I will keep yours". Taking all the testimony together, there will ever remain a doubt as to whether the verdict was correct or not. One of the affidavits preserved in the record is as follows :
"John Briggs of the town of Portsmouth, aged sixty-four years or thereabouts, being according to law engaged before the council, tes- tifieth: That on the 12th day of this instant month, February, in the night as this deponent lay in his bed, he being in a dream of Mrs. Rebecca Cornell, deceased, and being between sleeping and waking as he thought, he felt something heave up the bed-clothes twice, and thought somebody had been coming to bed to him; whereupon he awaked and turned himself about in his bed, and being turned he perceived a light in the room, like the dawning of the day, and plainly saw the shape and appearance of a woman standing by his bed-side, whercat he was much frightened and cricd out, 'In the name of God, what art thou?' The apparition answered, 'I am thy sister Cornell', and twice said, 'See how I am burnt with fire'. And she plainly ap- peared unto him to be very much burnt about the shoulders, face and head".
Whether this affidavit had any weight with the judges is uncertain, but in the light of the evidence that was subsequently received in the witchcraft cases, it would not be improbable that it may have had.
A case tried in 1801, that excited a great deal of interest at the time, was that of Dorrance v. Fenner, for slander and libel. A history of the case cannot be given here, but the facts are reported at length in Judge Durfee's Gleanings. The plaintiff was a judge of the Court of Common Pleas, the defendant, the governor of the State. Hence the case had largely a political bearing. The case is valuable as throwing light upon the conduct of trials at that date. It is reported anon- ymously, as carefully compiled from notes correctly taken by several gentlemen who were present during the whole course of the trial, and yet a perusal of the report cannot but suggest that the author may have been unduly prejudiced against the court. Still, without ques- tion, the report in the main is accurate.
In the empaneling of the jury the counsel for the defendant objected to one of the talesmen and took occasion to remark that a juror in any cause "ought to sit neat and clean as a sheet of blank paper". The chief justice in passing upon the eligibility of the juror said that, owing to the great public anxiety over the case, he was desirous of having suitable men for jurors, and that in the selection of the panel
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he should not strictly confine himself to any rigid maxims of law, any precise principles stated in the books, the common customs of the country or the former practice of the court, but should endeavor by every means to empanel a jury wholly free from interest and prejudice to the parties. An amusing feature of the trial, certainly extraor- dinary under modern practice, occurred when, upon a question of the admissibility of evidence, the defendant arose in person and declared to the court that his principal object in the trial was to have every fact and every possible circumstance brought up to public view, in order that the public might fairly judge of his conduct. He wished the multitude of spectators, who crowded the galleries and floor of the house, would harken to his public declaration and direct their attention to the trial that they might be fully informed of the merits of the cause. He wished that every public transaction of his life might be proclaimed to the world and that every decd, whether moral or political, public or private, might be without reserve submitted to the inquiry and scrutiny of the public. He again implored the attention of all those within the sound of his voice and solemnly submitted the cause to their candor; their judgment and feelings.
Whereupon the chief justice, after privately conferring with the court, said : "It is the opinion of the court that the witness tell all he knows". Almost immediately another controversy arose over the evi- dence, and in the course of the argument counsel quoted an authority to establish the position they contended for.
The chief justice, after some considerable consultation in private, declared : "It is the opinion of the court that the witness go on and tell all he knows". The plaintiff's counsel then desired the court to give a regular decision upon the motion before them. They observed that the motion involved a principle of the highest importance, as regarded the rules of evidence; and that the disposal of the present question would create and establish a precedent that must govern in like circumstances thercafter. The defendant's counsel insisted that the witness be allowed to proceed in his testimony without any further interruption.
The court again whispered for some length of time and the chief justice again repeated : "It is the opinion of the court that the wit- ness go on and tell all he knows". The plaintiff's counsel again asked the court if no formal decision was to be given on the motion. To which inquiry the court made no answer.
On Saturday evening, being the fourth day of the trial, the argu- inents were closed, and the cause committed to the jury. About nine o'clock the same evening the jury retired to their room. They re- mained there without agrecing upon a verdict till after the court was opened on the following Monday morning, when they appeared and informed the court that there was no possibility of their ever agreeing,
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