Argument of William H. Seward, in defence of Abel F. Fitch and others, under an indictment for arson, delivered at Detroit, on the 12th, 13th and 15th days of September, 1851.: Phonographically reported by T. C. Leland.

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it by a plot, and predicate it on the burning of a depot. Phelps himself suggested
that, instead of burning a depot in fact, the plot shl4'd be predicated upon the con
flagration which had already happened. That suggestion proceeded on the ground,
that, although the conflagration had happened by casualty, yet it could be proved
by subornation, and that ithad been done by an incendiary, and the suborned witnesses were to prove that fact by fabricated admissions. What are all the pretended admissions of Gay and Fitch now produced here, but the fabrications, thus early
foreshadowed? -
Nevertheless, Gentlemen, Gay's declarations are not evidence. He is not a defendant. He is not on trial. - If living, he would be a competent witness to prove
the facts if he could be a witness at all. But he could not be a witness/if living,
because, being the principal, he would not be competent before conviction to charge
the crime against accessories. Since he is dead his declarations while living can no
more be received than could his oath if living. If you proceed upon the ground of
a conspiracy, his recitals of what was past and ended are not competent testimony; "It
is only declarations, promises and threats, constituting a part of the felonious transactions themselves and uttered in furtherance of them, that can be received as evidence.
[Roscoe, 323.] I challenge the Counsel for the prosecution to show now where in
all this voluminous mass of testimony is found one word of proof that any one of
the allegations of Gay was ever bronght to the knowledge of any one of the defend ants and confirmed by him, or was ever brought to his knowledge at all. Take the
names of the defendants. Have those allegations been brought home to Benjamin F.
F. Gleason? No! To Daniel Myers? No! To John Palmer? No! To Lester
Penfield? No! To Farnham or to Barrett? No! To Grant or to Lacock? No!
To Willard Champlin? No! To Erastus Champlin? No! To E. Price? No!
To Abel F. Fitch? No! To Aaron Mount? No! To William Champlin? No!
to Richard Price? No! To Ami Filley? No! To Andrew J. Freeland? No!
To William Gunn, or any other defendant? No! The testimony of Gay's allega
tions came in then unadvisedly. It has done its work. It has,poisoned the public
mind against the defendants. You are more than human if you have not been af fected by it. But it is time to discharge this testimony from the case. I suppose
the promise on which it was admitted was made in good faith. To retain the evidence
since that promise has been broken, would be a fraud. I demand of the Court that
the testimony be struck out from the record, and conjure you that it be disregarded
altogether.
I pass to the supposed admissions of the defendant Smith as reported by Phelps;
and Lake. These, like those imputed to Gay, are discredited by internal evidence
of falsehood. Phelps says, "Erastus Smith was present when Gay said he receiv ed $150 for burning the depot, and that he knew the man by sight who paid it;
that it was raised by a company of men; and Smith afterwards intimated that he re ceived a part of the money." Again, Smith said " that the depot was burned under
an arrangement with Gay," of which he was cognisant, and also that Gay told him
who paid him the $150." Not only is there no evidence that Fitch ever saw or
heard of such a person as Smith, but the admissions themselves shows that he who
procured them knew that there was no acquaintance between them. These ad missions, moreover, have all the vagueness and generality of a technical pleading. An "4 arrangement," "cognisance"-such are the words, not of a man giving an ac count of a past transaction from actual knowledge, but of a lawyer framing general
interrogatories, or preparing evasive and deceptive answers. Again, Phe'ps reports
Smith as saying in iebruary at the Pantheon, that Fitch had left matters for dispos ing of certain witnesses (Lacock and Wells,) with him, and had agreed with Gay to
burn the new depot. That he, Smith, had agreed to assist Gay that Gay had given
him part of the money," that Smith had told him that "Fitch had applied to him to
burm the nBw; depot;" Phelps and Lake both testify that "Smithwas at the Pantheon
-in Februay.; talked withPhlelps about bu aing' the -, depot;at Nile,-:anid wanted to
know if th'r_d of C,orin and Price for buring thewood: wasto be put over
beyond theeMarch term becakuse that would'givethem more time.: