REPORT 
OF THE 
TRIAL OP ABNER ROGERS, JR. 
INDICTED FOR THE MURDER OF 
CHARLES LINCOLN, JR. 
LATE WARDEN OF THE MASSACHUSETTS STATE PRISON ; 
BEFORE THE SUPREME JUDICIAL COURT OF MASSACHUSETTS; 
HOLDEN AT BOSTON, 
ON TUESDAY, JANUARY 30, 1844. 
BY 
GEORGE TYLER BIGELOW AND GEORGE BEMIS, ESQRS., 
COUNSEL FOR THE DEFENDANT. 
BOSTON: 
CHARLES C. LITTLE AND JAMES BROWN. 
MDCCCXLIV. Entered according to Act of Congress, in the year 1844, 
By Charles C. Little and James Brown, 
in the Clerk’s Office of the District Court of the District of Massachusetts. 
boston: 
PRINTED BY FREEMAN AND BOLLES, 
WASHINGTON STREET. NOTE BY THE REPORTERS. 
The interest taken in the subject of insanity as a defence 
to criminal prosecutions, it is thought, renders the present 
trial sufficiently important to deserve a full and accurate 
report. Accordingly the best exertions (in the absence of 
a short-hand verbatim report,) have been made, to exhibit a 
full development of the case in its legal and medico-scientific 
bearings. The testimony, as afforded by our own copious 
minutes of the trial, has been carefully compared with the 
notes taken by the Chief Justice, (obligingly afforded for the 
purpose) and a statement of the law as propounded by the 
Bench, has been obtained from the same source. 
The State’s Attorney has also favored us with his opening 
and closing remarks, so far as he could write them out from 
memory after the trial. 
As a case involving the issue of feigned or real insanity, 
we believe the present the most interesting on record, cer- 
tainly in English or American jurisprudence. As one of 
transient duration, also, (supposing nothing further is heard 
of it,) it deserves, perhaps, to be noted for the benefit of 
medical science. TRIAL OF ABNER ROGERS, JR. 
At the March Term of the Supreme Judicial Court, held 
by adjournment at Boston, within and for the counties of 
Suffolk and Nantucket, on the 27th day of June, A. D. 
1843, the Grand Jury returned the following indictment 
against Abner Rogers, Jr. 
(£ommcmu)ealtl) of JHassacl)nsctt3. 
SUFFOLK AND NANTUCKET, TO WIT : 
At the Supreme Judicial Court of the commonwealth of 
Massachusetts, begun and holden at Boston, within the county 
of Suffolk, and for the counties of Suffolk and Nantucket, 
on the first Tuesday of March, in the year of our Lord one 
thousand eight hundred and forty-three, and thence contin- 
ued by lawful adjournments from time to time, until the 
twenty-seventh day of June, in the same year, and being in 
session on the said twenty-seventh day of the same June. 
The jurors for the said commonwealth of Massachusetts, 
on their oath present, that Abner Rogers, the younger of 
that name, late resident at Charlestown, in the county of 
Middlesex, and commonwealth aforesaid, laborer, and a con- 
vict and prisoner, under a sentence to imprisonment and hard 6 
TRIAL OF ABNER ROGERS, JR. 
labor, in the State Prison of said commonwealth, situated in 
Charlestown, in said county of Middlesex, (which prison, 
and the precincts thereof, by force of the statute in such 
case made and provided, are deemed by law, for the pur- 
pose of all judicial proceedings concerning crimes and offen- 
ces committed within said prison and its precincts, to be 
within and a part of the county of Suffolk, as well as the 
county of Middlesex, and which sentence was lawful, unre- 
versed, unexpired, and in full force,) with force and arms, 
on the fifteenth day of June, in the year of our Lord one 
thousand eight hundred and forty-three, at the State Prison 
aforesaid, and within the precincts thereof, at Charlestown 
aforesaid, and in the county of Suffolk, and within the crim- 
inal jurisdiction of the court, as aforesaid, by force of said 
statute, in and upon one Charles Lincoln, the younger of 
that name, late of said Charlestown, in the said county of 
Middlesex, Esquire, he the said Lincoln then and there being 
in the peace of God, and of said commonwealth, and also 
then and there being the warden of said State Prison, law- 
fully appointed and qualified, and being then and there in 
the due and lawful exercise and discharge of the duties of 
his said office of warden, as aforesaid, unlawfully, felo- 
niously, wilfully, and of his malice aforethought, an assault 
did make ; and that he, the said Abner Rogers, with a cer- 
tain knife, commonly called a shoe-knife, of the value of 
twenty cents, which he, the said Rogers, then and there had 
and held in his right hand, in and upon the back and neck 
of him, the said Charles Lincoln, then and there warden, as 
aforesaid, did, then and there in said prison, and within the 
precincts thereof, at Charlestown, aforesaid, in said county of 
Suffolk, as aforesaid, and within the criminal jurisdiction of 
this court, on said fifteenth day of said June, with force and 
arms, unlawfully, feloniously, and wilfully, and of his malice 
aforethought, him the said Charles Lincoln, three times strike, TRIAL OF ABNER ROGERS, JR. 
7 
thrust, stab, penetrate and wound; giving unto said Lincoln 
then and there, with the knife aforesaid, in and upon the 
back, neck, and throat of him, the said Lincoln, two mortal 
wounds; to wit,—one mortal wound, of the length of two 
inches, of the breadth of one inch, and of the depth of three 
inches, in and upon the back of him, the said Lincoln, near 
the shoulder blades and the spine of his back ; and one other 
mortal wound in and upon the left side of the neck and 
throat of him, the said Lincoln, of the length of three inches, 
of the breadth of one inch, and of the depth of three inches, 
of which said mortal wounds he, the said Charles Lincoln, 
then and there in the precincts of said prison, in the county 
of Suffolk, as aforesaid, and within the criminal jurisdiction 
of this court, instantly died. 
And so the jurors aforesaid, on their oath aforesaid, do 
say and present, that he, the said Abner Rogers, him, the 
said Charles Lincoln, then and there on the said fifteenth day 
of said June, in the State Prison aforesaid, and within the 
precincts thereof, at Charlestown aforesaid, in the county 
of Suffolk, as aforesaid, and within the criminal jurisdiction 
of this court, did, in manner and form aforesaid, unlawfully, 
feloniously, wilfully, and of his malice aforethought, kill and 
murder, against the peace of said commonwealth, and con- 
trary to the form, force, and effect of the statute in such case 
made and provided. 
This is a true bill, 
CHARLES B. SHAW, 
Foreman of the Grand Jury. 
Attorney of said Commonwealth, in and for the County of Suffolk. 
Samuel D. Parker, 
On the same day the prisoner was arraigned, and pleaded 
Not Guilty; and, being inquired of by the court, if he had 
any counsel, replied that he had none, and wished for 8 
TRIAL OF ABNER ROGERS, JR. 
time to see his father and friends. Accordingly, a few days7 
postponement was granted him, for this purpose. On Sat- 
urday, July 1st, he was again brought into court, and being 
asked by the chief justice if he had procured any counsel, 
replied that he was unable to, and requested that some one 
or more might be named for him by the court. Being 
informed that he had the privilege of naming two himself, 
he requested that Rufus Choate and George Bemis might 
be assigned him. Mr. Choate being present in court, stated 
that the nature and pressure of his professional and other 
engagements, positively forbade his complying with the pris- 
oner’s request, much as he was disposed to give him any aid 
in his power. The prisoner then named Richard Fletcher, 
in lieu of Mr. Choate. But the chief justice remarked, that 
Mr. Fletcher was then absent from the city, and that he was 
sure the state of his health would not permit him to take part 
in the case. 
The court then assigned George T. Bigelow as an asso- 
ciate with Mr. Bemis, arid fixed the trial for Tuesday, the 
24th of that month. 
The trial accordingly took place at that time, Chief Justice 
Shaw and judges Wilde and Hubbard being present. It 
lasted four days, till Friday of the same week, and resulted in 
a disagreement of the jury. 
The case was then postponed till the November term of 
the same court; and Tuesday, the second day of January, 
1844, was specially assigned for hearing it. At that time the 
prisoner’s counsel moved for a further postponement, in con- 
sequence of the temporary illness of Dr. Woodward, a mate- 
rial witness. A postponement was accordingly granted till 
Tuesday, the 30th of the same month, when the court, con- 
sisting of C. J. Shaw and judges Wilde and Dewey came 
in, and at 9 A. M. the trial commenced. 
The clerk, George C. Wilde, Esq., was about to call the TRIAL OF ABNER ROGERS, JR. 
9 
traverse jurors, when Mr. Bemis inquired of the court, if the 
same practice would be adhered to, which had been pursued 
on the former trial in regard to challenges, viz., of requiring 
the prisoner to challenge peremptorily before the court inter- 
rogated the juror as to having formed an opinion, or having a 
bias, or as to having conscientious scruples in regard to capital 
punishment. He remarked that the opposite course had been 
adopted in the trial of Francis Knapp, reported in 9 Pick. 
496, and that the effect of requiring the prisoner to challenge 
in the first instance, was to very much abridge and impair his 
statute privilege; since the answers to the interrogatories of 
the court, might, of themselves, show that the juror was unfit 
to sit in the case, and therefore the prisoner would throw 
away, or lose, his challenge upon him. 
The court, after some consultation, decided that the same 
course should be pursued as before, viz., that the right of 
peremptory challenge, if used at all, must be used in the first 
instance, before the juror was interrogated as to his bias or 
scruples. The Chief Justice remarked, that Knapp’s case, 
referred to, was decided before the Revised Statutes; and 
that the new provision introduced into them in regard to 
conscientious scruples of jurors against convicting capitally, 
required this construction. 
The clerk then proceeded to call the list; the Chief Justice 
inquiring of each juror, who was not challenged in the first 
instance, if he had any conscientious scruples against render- 
ing a verdict of guilty, in a case punishable with death, or, if 
he were sensible of any bias, or had formed any opinion, in 
regard to this particular case. 
A large number of challenges having been made and the 
list exhausted, without affording but ten jurors, the prisoner 
elected to withdraw two of his challenges, and the panel was 
finally completed as follows : 
John C. Proctor, Foreman, Charles Appleton, Zephaniah 10 
TRIAL OF ABNER ROGERS, JR. 
Bassett, David Choate, John Eaton, Enoch A. Hobart, Aaron 
Leman, George W. Mansur, Stillman Messer, William G. 
Pierce, Albert Plimpton, and Francis C. Whiston. 
The indictment having been read, Mr. Parker, at twenty- 
seven minutes past ten, opened the case for the government, 
substantially as follows : 
Gentlemen of the Jury, 
Under the directions of the constitution and laws of this 
commonwealth, establishing the trial by jury, and by the 
selection of the prisoner at the bar, you are this day separated 
from the rest of your fellow-citizens, and one of the most 
important duties that can be performed by men in civil so- 
ciety, has devolved on you — the painful and responsible 
task of deciding the issue now joined, between the common- 
wealth and the unhappy man whom you have in charge — an 
issue involving the life or death of the prisoner. The same 
constitution of government, which guarantees to every citizen 
a jury trial, contains a description of the objects and design 
of rightful government. It declares, that “ the end of the 
institution, maintenance, and administration of government, 
is to secure the existence of the body politic, to protect it, 
and to furnish the individuals who compose it with the power 
of enjoying, in safety and tranquillity, their natural rights, and 
the blessings of life.” 
To secure these blessings, wise laws are made, and the 
public peace, and individual safety depend on the observance 
of those laws. But, such are the temptations of life, such 
the rude impulses of passion, such the depravity of human 
nature, that no system of laws will be obeyed, unless punish- 
ment be provided and inflicted for their violation. The 
chief design of punishment is the prevention of crime, by 
exhibiting an example of its consequences, so painful as to 
deter others from a repetition of the offence ; where this can TRIAL OF ABNER ROGERS, JR. 
11 
be done, and the moral reformation of the criminal also be 
effected, humane legislators endeavor to accomplish both ob- 
jects. But in the judgment of all civilized communities, 
there are some crimes so dangerous to the public, so inju- 
rious to individuals, so malicious and atrocious in their char- 
acter and degree, that the life of the culprit is decreed for- 
feited, and, after a proper season for repentance and religious 
exercises is allowed, death is inflicted upon the criminal for 
the safety of all other men, and the security of all other lives. 
In cases of murder, the guilty are not executed from any 
principle of revenge or retaliation, but that no more murders 
shall be committed, that other men’s lives may be protected 
by law, that all other evil-disposed persons may be deterred, 
by the extreme severity of the punishment, from the com- 
mission of a similar crime. Hence criminal laws and courts 
of criminal jurisdiction, are the balance-wheels, in the com- 
plicated machinery of human society, and are the moral and 
effectual power which restrain the other parts from going 
wrong, and doing wrong. The duty, then, of applying and 
enforcing the laws of a nation, is one of the most important 
which men can discharge; and no citizen has a right to 
shrink from such a duty, when called upon by lawful author- 
ity, as you now are, to sit in judgment between the accused 
and his accuser ; and to decide with impartiality, and reli- 
gious adherence to the law and the testimony, the important 
question of the guilt or innocence of the party on trial. 
The grand inquest for the body of this county, upon their 
oath, make the charge; the prisoner denies it, and puts him- 
self on God and his country for a deliverance; and you, 
under the providence of that God, are that country, who are 
to decide his fate ; and you are bound, by the obligations of 
conscience and the law of the land, imposing your oath, to 
give righteous judgment. You are to understand and con- 
sider the accusation, the nature of the crime charged, the 12 
TRIAL OF ABNER ROGERS, JR. 
evidence by which it is proved, the defence of the prisoner, 
and the principles of law which are to govern you in your 
decision. In opening this solemn case to you, I shall speak 
upon each of these subjects, and you will have the instruc- 
tions of the learned judges who preside over this important 
trial, to guide you in the path of duty. 
By the constitution, which is the supreme law in this com- 
monwealth, it is provided, that no man shall be put on trial 
for an offence, until the same be fairly, fully, and substan- 
tially stated to him. Great accuracy is therefore required in 
drawing indictments, especially in capital cases. The accu- 
sation is to be precise, definite, certain, unequivocal, and to 
afford the prisoner such information as will enable him to 
prepare his defence. Such an indictment you have before 
you for trial. It charges the prisoner with having committed 
the atrocious crime of wilful murder, in killing Charles Lin- 
coln, Jr. the warden of the state prison at Charlestown, on 
the fifteenth day of June last, in the manner and form spe- 
cially set forth. Though Charlestown is in the county of 
Middlesex, yet the precincts of the state prison are for the 
purposes of criminal trials, both in the county of Suffolk and 
county of Middlesex, by the express provisions of the Ra- 
vised Statutes, chap. 144, sect. 43, page 797. 
Such is the accusation ; but what is the nature of the crime 
of murder ? This is not defined by any statute law, and we 
must go to the common law for the definition. The ev- 
idence of the common law is found in the decisions of the 
courts for a long period of time. On this occasion, I shall 
state to you the nature of the crime of murder, in the com- 
prehensive and accurate language of the present learned 
Chief Justice of this commonwealth, which is in conformity 
with the rules of the common law for many centuries. 
“ Murder,” said the Chief Justice, (in a charge to the grand 
jury, in Essex county,) “ is the unlawful killing of any rea- TRIAL OF ABNER ROGERS, JR. 
13 
sonable creature in being, by a person of competent under- 
standing to distinguish between 1'ight and wrong, with 
malice aforethought, express or implied.” This definition 
makes the crime consist of four elements. 
1. An unlawful killing, that is, an inexcusable, unjustifia- 
ble, felonious killing. 
2. The act must be done with malice, express or implied. 
3. The perpetrator of the crime must have been of com- 
petent understanding to distinguish between right and wrong. 
4. The person slain, must have been “ a reasonable crea- 
ture in being.” These four particulars are fully alleged in 
this indictment. 
The first and most material part of this accusation is, that 
the prisoner killed Mr. Lincoln. This fact will be proved 
beyond all controversy. It will not even be denied by the 
learned counsel of the defendant. Nor will the killing be 
justified for any reason, nor alleged to be lawful, nor ex- 
cused upon any of the common grounds of excuse. And the 
killing was effected in the manner, and by the instrument 
described in the indictment. The evidence will be entirely 
satisfactory and conclusive on this point. 
The next circumstance required to be proved, is, that the 
killing, thus unlawful, was done “ with malice aforethought, 
express or implied.” — “ Malice is express,” says Chief Jus- 
tice Parsons, in Selfridge’s Trial, page 5, “ where there was a 
premeditated intention to kill. Malice is implied when the 
killing is attended with circumstances which indicate great 
wickedness and depravity of disposition, a heart void of so- 
cial duty, and fatally bent on mischief.” 
Malice is implied, says Mr. East,1 from any deliberate act, 
however sudden. And, he adds, (2*25) he who wilfully and de- 
liberately does any act which apparently endangers another’s 
life, and thereby occasions his death, shall, unless he clearly 
1 1 East’s Pleas of the Ciown, 215. 14 
TRIAL OF ABNER ROGERS, JR. 
prove the contrary, be adjudged to kill him of malice pre- 
pense. 
Malice, says judge Addison, quoted and approved by judge 
Hush, (trial of Richard Smith in Philadelphia, for murder of 
captain John Carson, May 1816, page 83,) is a deliberate, 
wicked, vindictive temper, regardless of social duty, and bent 
on mischief. When a wilful killing is proved, the law pre- 
sumes malice, unless the killer proves the contrary, (page 84.) 
Deliberate killing, without passion, whatever may have been 
the provocation, is murder. In page 231, it is said, the law 
does not fix the time of such deliberation. If the defendant 
has time to think, said judge Rush, in that trial, (page 231,) 
and did intend to kill, for a minute, as well as for an hour or a 
day, it is a deliberate, premeditated killing, constituting murder. 
To deliberate is to reflect with a view to make a choice, and a 
reflection but for a minute is a sufficient deliberation. No time 
is too short for a wicked man to frame in his mind a scheme 
of murder, and to contrive the means of accomplishing it. 
If a man, says chief justice Parker, in Phillips’s Trial, 45, 
kills another suddenly with slight or no provocation, the law 
implies malice, (and so is 4 Black. Com. 200) ; and solicitor 
general Davis said in that trial, (37,) evidence of malice arises 
from the nature of the weapon with which the mortal stroke 
is given. To this effect see also I Hale, 454 ; Kel. 64. 
Foster says,1 malice is implied, where an officer is killed 
in the lawful discharge of his duty. Lord Hale expresses 
it rather more strongly : “ To kill an officer in the faithful 
discharge of his duty, is murder, and the law will imply the 
highest degree of malice.” (1 P. C. 465.) 
Malice may also be inferred from the mode in which the 
weapon was obtained and selected, especially if it was the best 
choice for the tragic purpose : the manner, too, in which the 
weapon was used, the repetition of dangerous wounds, the 
1 Crown Law, 380. TRIAL OF ABNER ROGERS, JR. 
15 
choice of vital spots for those wounds, and the perseverance in 
the assault until death be produced, these are all circumstances 
indicative of malice. Deliberate malice may also be seen in 
the mode of attack, the time selected for it, when the victim 
is off his guard, when he has no opportunity for self-defence, 
when stabs are given from behind ; — pursuing a man, select- 
ing him from among others, advancing on him in a studied, 
circuitous manner, which could not be perceived, intercepted 
or prevented, also show calculation, deliberation, and malice. 
Finally, if there was cause, real or imaginary, for resent- 
ment, if the purpose of killing was long harbored, if no mo- 
tive but revenge can be assigned for the fatal deed, if revenge 
was harbored, and if previous threats have been made, those 
facts would be evidence of express malice. 
Such being the nature of express and implied malice, I 
expect to give you evidence of both, on this melancholy occa- 
sion. The killing and malice being proved, I am, thirdly, to 
remind you that the offence must be committed by an agent 
of competent understanding, to distinguish between right and 
wrong. Nemo est reus, nisi mens sit rea. Idiocy and in- 
sanity are good grounds of defence in a capital trial, because 
then the mind cannot have been guilty. 
Who then is this prisoner, Abner Rogers, Jr. ? and at the 
time of his killing Mr. Lincoln, was he a person of such com- 
petent understanding ? His history is easily told. 
After giving an outline of his history, Mr. Parker said, I 
suppose it will further appear, in addition to the common 
presumption that every man is a rational, moral and account- 
able agent, that the prisoner possesses shrewdness, common 
capacity, no defect of intellect, and has never been deemed 
or treated as insane or idiotic by his family, his employers, his 
physician, or the officers of the prison. Under these circum- 
stances, and having some intimation what the learned counsel 
of the prisoner will urge in his defence, it may be proper to 16 
TRIAL OF ABNER ROGERS, JR. 
consider, somewhat at length, what is the meaning, as appli- 
cable to him, of the words, “ of competent understanding to 
distinguish between right and wrong,” used in the definition 
of murder. This I am now induced to do, that the learned 
counsel of the prisoner may have a reference to such author- 
ities in the law, as I shall rely upon, as bearing on this question. 
There are some rules and decisions respecting soundness 
of mind in civil cases relating to wills, deeds, contracts, &c., 
which establish a different criterion from that which decides 
criminal responsibility ; but we are now to consider only what 
excuses crimes.1 
Idiocy is a defect of the understanding, from the moment 
of birth, or, it is subsequently brought on by accident, sick- 
ness or old age.2 
“ Insanity is a disease of the brain which causes the patient, 
while awake, to mistake the phantoms and operations of 
imagination for realities, which, consequently, become the 
motives of his discourse and actions, while at the time there 
is an absence of any bodily disorder that can account for the 
phenomena.” 
The best definition of Insanity I have found is in Sir Alex- 
ander Crichton’s Commentaries, page 165. Insane persons are 
arranged into classes: 
1. Maniacs, who are under a phrensy. 
2. Lunatics, having lucid intervals. 
3. Melancholics, subject to constant depression. 
4. Monomaniacs, under a delusion upon a particular subject. 
5. Demented, deprived of mind by grief, sickness, accidents, 
or old age.3 
Lord Coke says, “ many times the Latin word expresses 
the true meaning, and calleth him not, amens, demens, 
1 See Chitty’s Medical Jurisprudence. 
3 Chitty’s Medical Jurisprudence, 345. 
2 Co. Litt. 247. TRIAL OF ABNER ROGERS, JR. 
17 
furiosus, lunaticus, fatuus, stultus, or the like, but non compos 
MENTIS.” ‘ 
Bracton says, furiosus non intelligit quod agit, et animo 
et ratione caret, et non multum distat a brutis.2 
Lord Hale observes correctly,3 that “ it is very difficult to 
define the invisible line that divides perfect and partial in- 
sanity, but it must rest on circumstances duly to be weighed 
and considered by judge and jury, lest on the one side there 
be a kind of inhumanity towards defects of human nature, or 
on the other side too great an indulgence given to crimes.” 
“ The most difficult cases,” (said Erskine, in Hadfield’s trial,) 
“ are where reason is not wholly driven from her seat, but dis- 
traction sits down upon it along with her, holds her trembling 
upon it, and frightens her from her propriety.4 Such patients 
are victims to delusion of the most alarming description, 
which so overpowers the faculties and usurps so firmly the 
place of realities as not to be dislodged and shaken by the 
organs of perception and sense. Delusion, therefore, where 
there is no phrensy or raving madness, is the true character 
of insanity, and where it cannot be predicted of a man stand- 
ing for life or death for a crime, he ought not to be acquitted.” 
Some rules about freeing a lunatic from criminal responsi- 
bility may be found in 1 Collinson on Lunacy, 473, 474, 477. 
“ There must be an absolute dispossession of the free and 
natural agency of the human mind. 
The prisoner must have been incapable of distinguishing 
between good and evil, and of comprehending the nature of 
what he was doing. 
Being a lunatic before or after the act is not enough; his 
madness must be complete and absolute at the moment when 
the offence was committed.” 
1 Co. Litt. 247, a. 2 Lib. 5, 420, b. 
4 Quoted in Chitty's Med. Jur. 360. 
3 1 P. C. 29, 30. 18 
TRIAL OF ABNER ROGERS, JR. 
Cooper expresses the same rule, “ the insanity must be dis- 
tinct and manifest at the time the crime was committed.” 1 
So Male says, “ where no insanity is proved, and there has 
been none previously existing, where the delinquent has acted 
from facts and existing circumstances, the law does not pro- 
tect him.” 2 
Shelford, from a number of adjudged cases, thus deduces 
the rule of law.3 “ If a person, liable to partial insanity, which 
only relates to particular subjects or notions, upon which he 
talks and acts like a madman, still has as much reason as 
enables him to distinguish between right and wrong, he will 
be liable to that punishment which the law attaches to his 
crime.” He cites Lord Ferrer’s case, 10 Howell State Trials, 
947; Arnold’s case, 16 Howell State Trials, 764; Parker’s 
case, 1 Collinson on Lunacy, 477 ; Bellingham’s case, 1 Col- 
linson on Lunacy, 636 ; Offora’s case, 5 Carr, and Paine, 168 ; 
Bowler’s case, 1 Collinson, 673; and 54 Annual Register, 
309. 
Sir John Mitford said, in Hadfield’s trial,4 “because there is 
a natural impression on the mind of man of the distinction 
between good and evil, which never entirely loses hold of the 
mind, whilst the mind has any capacity whatever to exert 
itself, nothing but total and absolute debility deprives the 
mind of any man of that. If conscious of the act as the 
result of design and contrivance, and of the consequences of 
the act, is there not a moral sense, which indicates criminal 
responsibility?” 
The true criterion of insanity, said Sir John Nichols, is 
delusion, and he cites Locke on the Human Understanding, 
book 2, ch. 11, 13.5 
“ Dementation arising from unruly passion is no excuse.” 6 
1 Cooper’s Med. Jur. 381. 2 Cooper’s Med. Jur. 255. 
3 Shelford on Lunacy, 458. 4 27 Howell’s State Trials, 1290. 
6 In Dew v. Clark, 3 Addams, 90, 91. 
6 Prenovi’s Qase, 3d City Hall Recorder, 123. TRIAL OF ABNER ROGERS, JR. 
19 
One of the best and latest writers on medical jurisprudence, 
Mr. Chitty, (page 345,) thus expresses the rule of law. “ The 
true test of insanity, where there is no phrensy or raving, is 
the absence or presence of delusion, and delusion exists 
whenever an individual once conceives something extravagant 
to exist, which has no existence, and when he is incapable of 
being reasoned out of that absurd conception. In criminal 
cases, therefore, the question is simple, adapted to the com- 
prehension of every juryman, “ whether, at the time the act 
was committed, the prisoner was incapable of judging between 
right and wrong, and did not then know that the particular 
act was an offence against the law of God and nature.” 
He adds,.“ the law presumes the competency, and therefore 
the question is always presented to a jury upon the neg- 
ative, which must be established on the part of the prisoner, 
the burthen of proof is on him.” 
Mr. Chitty is entirely supported by Mr. Erskine, whom he 
quotes, and I desire no better rule for your guidance, than 
that which Erskine in Hadfield’s trial, the prisoner’s counsel, 
stated to be the true rule. 
“ To deliver a lunatic from responsibility to criminal justice, 
said he, above all in a case of atrocity, the relation between 
the disease and the act should be apparent; the delusion 
and the act must be connected. I cannot allow the protec- 
tion of insanity to a man, who exhibits only violent passions 
and malignant resentments, acting upon real circumstances, 
who is impelled to evil from no morbid delusion, but who 
proceeds upon the ordinary perceptions of the mind.” 
It seems, therefore, where the act may be justly ascribed to 
malignant motives, and not to the dominion of disease, when 
the party was acting upon actual grounds and not under any 
delusion, and was instigated to revenge founded on natural 
facts, and not on any illusion, then criminal responsibility 
attaches. 20 
TRIAL OF ABNER ROGERS, JR. 
Even a lunatic will be criminally responsible, if he knew 
he had no right so to revenge himself.1 And the most hu- 
mane superintendents of insane hospitals sometimes punish 
their patients on this very principle. 
I am justified then, in telling you, that the burthen of proof 
of insanity in all cases is on the prisoner, he must establish 
the fact beyond a reasonable doubt; and if at no other time, 
in no other place, on no other occasion, towards no other 
person, he manifested any insanity or want of competent un- 
derstanding to distinguish between right and wrong, then 
clearer proof on his part is necessary than under other cir- 
cumstances. I have now alluded to some rules of law 
upon this subject, which in the closing arguments will be 
more fully discussed.2 
The fourth ingredient in the crime of murder is, that it 
must be the unlawful “ killing of any reasonable creature in 
being.” And who was the person killed on this occasion ?— 
A man in full life, perfect health, of middle age, distinguished 
for vigor of mind and body, and selected for his virtues, in- 
tegrity, firmness, prudence and capacity, to superintend one of 
the most difficult and important institutions of this common- 
wealth. On this head the evidence will be clear, satisfactory 
and conclusive, that the late Mr. Lincoln was such a person. 
The accusation and nature of the crime having thus been 
explained, I am next to state to you a brief outline of the 
evidence I shall offer you. I will prove Mr. Lincoln’s ap- 
pointment as warden of the state prison, and read his com- 
mission as it describes his duties. Then I will offer you the 
record of the conviction and sentence of Abner Rogers, Jr. 
to that prison, and prove that he was under its discipline at the 
1 Rex v. Offord, 6 Carr, and Pa. 168. 
2 Refers to those which were cited in a former trial. Also the opinions 
of the English Judges to the House of Lords, in appendix to Wins- 
low’s Plea of Insanity, and Harlam on Medical Jurisprudence, 49. TRIAL OF ABNER ROGERS, JR. 
21 
time of the murder. The horrid tragedy will then be de- 
tailed to you by eye witnesses, and the events preceding, 
simultaneous, and subsequent, will be proved as having a ma- 
terial bearing upon the guilt or innocence of the prisoner. 
When this evidence is placed before you, the defence of the 
prisoner will be made by his counsel, and if it be such as I 
anticipate, it will become my duty, before the closing argu- 
ments are commenced, to rebut, if I can, such evidence as 
tends to support the defence, and call the attention of the 
counsel, the court, and the jury to those principles of law, 
which I think, should guide you in deciding the issue you 
have to try. One of the principal positions I shall endeavor 
to maintain, is, that mere unsoundness of mind does not 
always relieve from criminal responsibility ; that there are de- 
grees of insanity, some of which do, and others do not, excuse 
from punishment those who commit the crime of homicide, 
and that under the facts and circumstances of this case, the 
prisoner is rightfully punishable by law, and answerable penally 
for the crime of wilful murder. Your principal difficulty will 
be in establishing under the law and the evidence where the 
line of moral and legal responsibility separates crimes from 
acts which become innocent by reason of insanity. You will 
hear much said to you on both sides by the counsel, and 
finally will be aided by the instructions of the court on this 
delicate subject. To prevent surprise, I inform the learned 
counsel and the honorable court, that I rely upon all the cases 
and books cited by me in the former trial of this case, of 
which they took notes, but that for the present I shall con- 
tend that the law is rightly laid down by Lord Chief Justice 
Tindall’s statement of the opinions of the English judges to 
the house of Lords, especially as I understood his honor, the 
chief justice of this court, substantially to have approved of 
the law as so stated.1 
1 Read from the appendix of Winslow’s Plea of Insanity. 22 
TRIAL OF ABNER ROGERS, JR. 
But there is a question beyond all this, and that is, whether 
what shall be proved, on the part of the prisoner, demon- 
strates a case of real or simulated insanity. It is your pro- 
vince to decide, 
1. Is there any insanity proved? 
2. Is it real or simulated ? 
3. If real, was it to such extent as to excuse from criminal 
responsibility ? 
4. What is the criterion, or rule ? 
And there is a position I intend to take at this trial, which 
was not stated, or contended for, in the former trial, and I shall 
ask the court to give you special instructions on this point. 
There are degrees of insanity, from very slight aberrations 
of reason, temporary in their nature, and easily controllable, 
to the most furious raving madness, permanent and uncon- 
trollable. Criminal responsibility attaches to those very slight 
degrees; and the great difficulty is, to define the boundaries, 
or draw the line where accountability ends, and irresponsi- 
bility begins. These slight and temporary cases often pro- 
duce a sudden and violent impulse, like a sudden gust of 
violent passion, and lead to acts of violence, like those pro- 
duced under the influence of passion, upon an unexpected 
provocation, in a heat of blood. Now this sudden excite- 
ment rebuts the presumption of malice, in cases of homi- 
cide, and, in accountable agents, reduces the offence from 
murder to manslaughter. Manslaughter is an unlawful killing 
of a human being, without malice aforethought, committed 
in a transport of passion, heat of blood, &c. &c. Now, 
the impulses of the mind, partially deranged, are of various 
degrees; some controllable, and others incontrollable. There 
may be cases where the impulse is controllable, and yet the 
excitement very great, like a sudden transport of passion ; 
and a homicide committed under such an influence, may have 
all the characteristics of manslaughter, and may justify a jury TRIAL OF ABNER ROGERS, JR. 
23 
in returning such a verdict, under an indictment like this, for 
murder. 
Mr. Winslow, at the close of his “ Plea of Insanity,” (97,) 
says, “ I repeat I am not prepared to give an unqualified 
assent to the dogma, that in every case of mental derange- 
ment, without any reference to its degree or character, ought 
the person to be screened from the penalty awarded by the 
laws, for criminal offences.” “ Such a doctrine is as unphi- 
losophical and untenable, as it is opposed to the safety and 
well-being of society.” What, then, is the character of a 
homicide, committed by a person partially insane? If, upon 
a sudden impulse, controllable, but not controlled, and, if 
unattended with express malice, the crime is manslaughter; 
and I particularly ask the attention of the honorable court to 
this point, and after all the evidence in this case is laid be- 
fore you, to instruct you in reference to it, and that it is 
competent for you to bring in a verdict of manslaughter, if 
the prisoner could control his actions, and was not governed 
by malice. 
From the course of the defence at the former trial, and 
from seeing the superintendents of some insane hospitals in 
attendance, on the part of the prisoner, I am led to believe, 
that the opinions of some medical scientific men will be 
offered to you, to guide your judgment, in deciding upon the 
guilt or the innocence of the prisoner; I am, therefore, 
desirous you should understand the proper value and effect 
of such testimony, and for this purpose shall avail myself 
now, or at some other stage of this trial, of a very sensible 
commentary upon such evidence, by a medical author of the 
highest reputation among the learned of that profession, I 
mean Dr. Fobes, the editor of the British and Foreign Med- 
ical Review, for July, 1843, published a month after this 
crime was committed. I am not desirous of reading it now, 
but only to give notice to the learned counsel of the prisoner, 24 
TRIAL OF ABNER ROGERS, JR. 
that I shall adopt the reasonings and remarks there, as a part 
of my closing argument. 
Gentlemen, the case you are now called upon to decide, 
is a most solemn one, and not unattended with difficulties; 
and I invite your most careful consideration both of the law 
and the evidence, which are to be the guides to lead you to 
a truthful verdict. 
Having closed his remarks at twenty-four minutes past 
eleven, Mr. Parker proceeded to put in his testimony, as 
follows : 
He first produced and read the commission of Charles 
Lincoln, Jr., as warden of the state prison, bearing date 
April 24th, A. D. 1832. 
He next produced and read the conviction and sentence 
of Abner Rogers, Jr., as a “ second comer ” in the state 
prison; by which it appeared that Rogers was convicted and 
sentenced in March, 1833, at Ipswich, for having a counterfeit 
bank bill in his possession, with intent, &c., to one day’s solitary 
confinement, and two years’ hard labor, in the state’s prison ; 
and again, in March, 1838, at Ipswich, for breaking and enter- 
ing a shop, and stealing therein a quantity of boots and shoes, 
to one day’s solitary confinement, and five years’ hard labor 
in the state’s prison ; and, as a “ second comer,” under 
these two sentences, was again sentenced at the municipal 
court for the city of Boston, at the March Term, 1843, to 
six months’ additional confinement in the state’s prison, 
which last named sentence he was undergoing, at the time of 
the homicide. 
He next produced a plan of the shoe-shop, in which the 
murder was committed, showing the place where the warden 
entered, his course through the shop, to the place where he 
stood when the fatal blows were given, his position at the 
time, and the mode of approach of the prisoner towards him, 
for the purpose of consummating his purpose. TRIAL OF ABNER ROGERS, JR. 
25 
Dr. William J. Walker, called and sworn. I am physi- 
cian of the state prison, at Charlestown, and have held the 
office for fourteen years; I saw the dead body of Charles 
Lincoln, Jr., warden of the prison, on the fifteenth day of 
June last; I saw the body at the warden’s house, in the 
prison yard, and there made an examination of it, at the 
close of the day ; I made some examination of the wounds, 
then, but a more particular one afterwards, on Sunday after- 
noon. There was a wound in the back, under the shoulder 
blade ; another wound in the small of the back; and still 
another, in the neck. I examined the wounds ; the wound 
in the small of the back was not very severe ; the wound 
under the shoulder blade was the length of my fore finger, 
which I passed into it, and it was larger at its interior termi- 
nation, than at the orifice, caused, as I believe, by the turn- 
ing of the knife in the wound, before it was drawn out; 
I cannot say that this wound was fatal ; the wound in the 
neck was fatal; the others might not have been ; the wound 
in the neck divided the carotid artery, went through it, into 
the windpipe ; the knife was also turned after it entered, as 
shown by the shape of the wound at its terminus; this 
was a mortal wound. Mr. Lincoln must have died instantly ; 
from the post mortem appearances, I doubt if he could 
have taken a single respiration, after the infliction of the 
wound. 
[The State’s attorney here stated, that he should call Dr. 
Walker again, before closing the evidence for the government, 
to prove other points; therefore, his cross-examination was 
postponed until he was recalled.] 
Moses Jaquith, called and sworn. I reside in Boston; 
am a paper-ruler; I went to the state prison on the fifteenth 
of June last, in the afternoon; I went there for the purpose 
of ascertaining whether a prisoner, by the name of Thorn, 
was the son of a man in Vermont, who had written to me 26 
TRIAL OF ABNER ROGERS, JR. 
about him, and who had not seen or heard from him for 
fifteen years; I saw the warden, stated to him my business, 
and he said he would ascertain whether Thorn was the son 
of this man, or not; we went down into the yard, and into 
the shoe-shop ; the warden w7ent first, and I followed. We 
arrived at the place where Thorn was at work, which was at 
a bench, against the north wall of the shop. The warden 
stopped to talk with Thorn; I passed beyond Thorn and the 
warden; I saw a piece of mahogany-carving, which I took 
up to examine; when I turned round, I saw the prisoner 
raising his arm ; the warden had turned, and his arm was 
partly raised, holding his cane. The blow I saw given by 
the prisoner was in the warden’s neck. When the blow took 
effect, Rogers was almost instantly seized by some of the 
other convicts ; the warden moved his lips, as if to speak, 
but uttered nothing; his face expressed great agony. Mr. 
Sargent, and another man, caught Mr. Lincoln, as he fell, 
and carried him out; the prisoner had taken the sword cane 
from the warden’s hand; in the struggle which followed 
with the prisoner, the sword was drawn cut and broken. At 
the same time I saw the blow given, I heard the words, 
“ I told you I would I am confident they came from the 
prisoner; I am more confident now, than at the last trial, 
because I have heard the prisoner’s voice, as he challenged 
the jurors. After Rogers was disarmed, I left the shop; 
Rogers had his left hand on the warden’s shoulder, when he 
struck the blow I saw given; as soon as the warden fell into 
Sargent’s arms, the blood poured out of his mouth ; I af- 
terwards saw the dead body of Mr. Lincoln, at his own 
house. 
Cross-examined. I stood on the left of Thorn ; and Mr. Lin- 
coln stood on his right; no one was between me and Thorn; 
I stood next to Thorn, perhaps three feet off. It appears to me 
that no one was between me and Thorn ; I was not very calm, TRIAL OF ABNER ROGERS, JR. 
or self-possessed ; the words “ I told you I would,” did not 
occur to me, when I testified before the coroner’s inquest on 
the night of the murder ; I cannot say how I went out of the 
shop ; I went out of the first door I came to; I was not 
afraid of a revolt of the prisoners ; I attempted to seize the 
prisoner’s hand, but was prevented by the rushing up of 
others, who came to assist; I heard the words “ I told you I 
would,” at the very moment of the blow; I could not see 
Rogers’s mouth at the time ; it was all done in an instant. 
The next day, or two or three days afterward, these words 
came to my recollection : they came back plainly to my mind ; 
I do not mean to swear the words came from Rogers, because 
there is such a thing as seeing a man talk as well as hearing 
him; and I did not see the prisoner’s mouth ; I did not testify 
before the inquest, of hearing any words spoken ; these words, 
came to me afterwards ; I went out of the shop by a shorter 
cut than I came in; I went out slowly ; I cannot tell what 
recalled these words to my mind ; they came back to me 
when I was thinking the matter over; I am no more confi- 
dent now that the prisoner spoke the words than I was at the 
former trial; and I do not mean to swear that he uttered 
them. 
John P. Reed, called and sworn. (It was agreed that 
the witness had been pardoned by the Governor, to render him 
competent on the part of the prosecution.) I was in the shoe- 
shop of the state prison, on the fifteenth day of June last; my 
place of work was toward the westerly end of the shop, facing 
the officer ; I know the prisoner at the bar ; he was at work in 
the rear of me, upon a mattress, which was lying upon a 
table ; he was standing at the south end of the table ; I saw 
Mr. Lincoln enter the shop in company with another person, 
whom I have since recognized as Mr. Jaquith ; they came 
along toward Thorn’s bench, Mr. Lincoln stopping at Thorn’s 
left; I do not remember where Mr. Jaquith stood ; he passed 
Thorn. 28 
TRIAL OF ABNER ROGERS, JR. 
The first thing I noticed, was, that some one came up, and 
took a knife from my bench ; I had five in the rack ; I turned 
toward the place where the warden was standing, hearing 
somebody stepping in that direction, and saw the prisoner 
raising his arm; he struck the warden twice ; the first blow 
I saw was in the back ; the second was somewhere between 
the shoulders; I then saw the warden turn round ; I sprang 
to seize Rogers ; the warden had his sword-cane under his 
arm, and, as he turned, Rogers caught the cane away ; West 
and Bradley also caught hold of Rogers ; the knife was 
clenched in his hand ; [the witness here identified a shoe- 
knife shown to him, as being the one taken from his bench, 
and which Rogers had in his hand, when seized.] I heard 
nothing said by anybody; the sword-cane was broken in the 
struggle with the prisoner; Rogers had been at work during 
the day ; he had knives, which he used about his work, but they 
were shorter than the one produced ; I saw him talking that 
afternoon to Simmons ; he once left his table, and went into 
the blacksmith’s shop ; he also went to the officer a few min- 
utes before the warden came in, and talked with him, and 
Mr. Crowninshield ; Mr. Lincoln had not been in a minute 
when the act took place ; he made some resistance when 
seized, and tried to get away. 
Cross-examined. When I was pardoned, I had about 
fifteen months more of my sentence to work out. I have 
known Rogers eighteen months, having worked with him dur- 
ing that time in the same shop. I did not talk with him 
about the time of the homicide. I noticed him walking 
round the shop and going out of it oftener than usual. He 
was talking to himself and muttering. I saw no sign of 
grief or distress. On Tuesday . or Monday night preceding 
the homicide, he made a noise in his cell; a groaning noise, 
as if in distress, quite loud. I heard others say it was 
Rogers who made the noise ; it occurred every little while, TRIAL OF ABNER ROGERS, JR. 
29 
from 12 o’clock till morning. On Wednesday morning, he 
came into the shop in his stocking-feet and without his cap, 
some time after the rest of the prisoners, and went to his 
work bench. Mr. Fogg soon came in and told him to go back ; 
and there was a clinch between them. Rogers said, “ I’ll 
behave, if you will not take me back into the old prison and 
kill me. Do’nt shut me up and kill me he said something 
more about being shut up and killed. On Thursday morning 
he complained of a pain in his head. I saw him go to Mr. 
Sargent, the overseer of the shop, in the afternoon of Thurs- 
day ; he got down on his knees ; this was a few minutes 
before the homicide. He looked wild, more so than usual; 
but I don’t recollect noticing anything else particularly, in his 
conduct. I heard him say, after he had received his sentence 
as a second comer, that he had got off better than he ex- 
pected ; he expected a sentence of six or seven years, and had 
got only six months. I noticed the wildness of his eyes on 
Thursday afternoon, before anything happened. His lan- 
guage to Fogg was, “ Don’t take me up to the old prison and 
kill me ; if you will not, I’ll behave myself.” I think I had 
five knives on my bench, and Rogers two on the table where 
he worked. One of them about two inches long, and worn 
down to a point. There were knives on my bench about as 
long as the one Rogers took, and more pointed. I noticed 
his irregularities of conduct as early as Tuesday. 
Direct, resumed. The knife Rogers took was, I think, my 
longest knife. 
Henry K. Frothingham, called and sworn. I am clerk of 
the state prison, and was such on the 15th of June last. I 
saw Mr. Lincoln on that day alive and in health, at ten min- 
utes past 5 P. M. I saw him again at about fifteen minutes 
before six, on the bed, in his house, dead. His coat, vest, 
stock, and shirt were all cut through. Two thicknesses of 
his coat were cut through. (Identifies the warden’s cane.) 
This he always carried with him. 30 
TRIAL OF ABNER ROGERS, JR. 
Cross-examined. The distance of the head of a man pla- 
ced in the shower bath, from the top of it, is about six feet 
and eleven inches. It takes twenty or thirty seconds to dis- 
charge the water from the barrel through the holes. I had 
not seen Rogers that day, nor for several days previous. 
Dr. William J. Walker recalled. I have known the prison- 
er, Rogers, for several years. I saw him the morning of the 
homicide, when he came to the hospital for examination. 
We have a system of book-keeping regulating the mode of 
admission of hospital. A book is kept in each department of 
the prison, in which the name of each applicant, for medical 
aid, is inserted, and this book is sent to the physician. No 
man can enter the hospital without the consent of the over- 
seer of the department in which he works. It is the duty of 
the overseers to inform the physician of the facts relating to 
each man’s illness. Upon the names being entered in the 
shop books, the prisoners are sent to the hospital. There the 
names are taken off on to the hospital record, and against 
each name the prescription is written, and this is again written 
against the name of the prisoner in the shop book and returned 
to the overseer. 
All applicants come up to the hospital together to see the 
physician. Several came up on Thursday morning, the 15th 
of June; Rogers among them. He did not come the first or 
the last. When he came up to take his seat on the bench to 
await his turn, I saw his countenance. He entered the arch 
composedly, and walked steadily to his seat, in a quiet man- 
ner. When his turn came, he passed the door of my room in 
the same quiet manner, towards me. I asked him what was 
the matter. He threw himself into gesticulations at once, 
put his hands up to the side of his head and said — “I am in 
great distress here, I am in pain all over. I am in pain right 
through here ; and feel as if I could not govern my mind.” I 
said to him, “ I understand this. If you will do your part TRIAL OF ABNER ROGERS, JR. 
31 
toward meriting kind treatment, you will receive it; but if 
you do not, you cannot receive it.” He became collected 
immediately, was attentive to my advice, and went quietly 
away. I did not see him from that time, till I saw him in the 
court-room in July last. After seeing me, he was sent back 
to the shop. My prescription, as written in the book for him, 
was, “ Keep at work,” and I had good reasons for it. 
The following is a transcript of the hospital record re- 
lating to Rogers, from Feb. 1st, 1843, to the day of the 
homicide : 
Feb. 4 th, Examined and not prescribed for. 
Feb. 13th, Examined and not prescribed for. 
Feb. 18th, Examined and not prescribed for. 
March 22d, Two bread pills. 
March 24th, Liquorice. 
April 15th, Better without medicine. 
May 8th, Better without medicine. 
May 11th, Examined and not prescribed for. 
May 27th, Reported but did not come. 
June 3d, Physician did not attend. 
June 10th, Examined and not prescribed for. 
June 15th, Keep at work. 
I did not see Rogers after the homicide, because I was not 
called upon to see him. If he had asked for medical aid he 
would have had it. The frequency of simulated cases of 
insanity in the prison induced us to establish the system of 
book-keeping, in regard to admissions into the hospital. My 
attention has been particularly drawm to simulated insanity. 
I had thought of making a detailed report of my experience 
in the prison upon this subject. I am satisfied the prisoner 
was of perfectly sound mind and that he came to the hospital 
to deceive me. My reasons for this opinion are — that when 
he passed the door of the room where I was, I saw his coun- 
tenance and there was nothing unusual in its expression. — He 32 
TRIAL OF ABNER ROGERS, JR. 
approached me at first with his common gait and with his 
usual calm appearance and collected manner and without any 
manifestation of distress. On making his statement to me, he 
threw himself into the position I have described. — He did not 
feel the pain he pretended to have in his head; if he had, he 
would have walked more carefully, so as not to jar it, and his 
distress would have shown itself in his countenance. — He 
made no remonstrance against my advice. He said nothing 
about hearing voices. He indicated nervous excitement. I 
underscored the words, “ keep at work,” because, I believed 
him to be an onanist, and I wished to keep his mind occu- 
pied. I thought work the best thing for him. 
Tuesday, P. M., 3 o’clock. 
Cross-examined. I never have held any conversation 
with Rogers at other times than those when he has been to 
the hospital; I did, however, see him about thirty-six hours 
before the homicide, as the deputy-warden was putting him 
into the new prison ; I asked the warden what the matter 
was with Rogers, he smiled and said he was disposed to be 
refractory. Mr. Payne came and asked the warden at this 
time, how much water he should put on him ; the warden 
said, not much, part of a barrel. This was all I had heard of 
his case, before he came to the hospital on the morning of the 
homicide. What I said to Rogers on that morning, was 
based entirely on his manifest attempt to deceive me. I had 
no doubt through the whole that he was not really sick. I 
had never noticed him in the yard or chapel more than any 
other prisoner, and knew nothing particular about him. I did 
not feel his pulse on the morning of the fifteenth, when he came 
to the hospital, nor can I say, I did on the tenth; I did not 
examine his tongue ; I made such examination as I thought 
necessary in his case. I alluded to his conduct, generally, when 
I spoke to him of “ doing his part.” I always considered Mr. 
Lincoln’s judgment a superior one in distinguishing between real TRIAL OF ABNER ROGERS, JR. 
33 
and simulated insanity ; he always examined a case with a good 
deal of care ; I have never known him to mistake a case after 
examination. We had cases of insanity in the prison ; never 
heard Mr. Lincoln say it would not do to admit, that any per- 
son in the prison could be crazy. There are insane patients 
in the prison whom I do not attend. I should not think it 
came within my province to attend to such cases. I do attend 
them as well as others who are sick; but there are no accom- 
modations in the prison for treating insanity as such, and if 
not sick, I do not attend them. There is a man there by the 
name of Erving, who is insane. He was so when he came 
to the prison. Others have been sent there who were insane, 
and not proper subjects of punishment. From what I have 
seen of Orman Johnson’s case, I consider it one of counter- 
feited insanity ; but I have had no cooperation from the 
other officers of the prison in respect to it—(Reads the 
record of his case, and states his reasons for prescribing for 
him “ to be chained and kept at work at the grindstone.”) 
Previous to the morning of the fifteenth of June, I had not 
heard that Rogers had been insane, or pretended to be ; 
he only said to me, “ I cannot govern my mind ; ” I con- 
cluded he was trying to pass himself off as an insane man ; 
have no recollection that Rogers ever made any such com- 
plaint before; always thought he came to the hospital for 
trivial purposes ; I know of but two cases of real insanity 
which have occurred in prison, and which originated there ; 
perhaps there have been twenty cases altogether, including 
those who came there insane. Mr. Lincoln always examined 
cases with the utmost care ; we have had five or six cases 
of systematic attempts to simulate insanity in the prison. 
II. K. Frothingham, Clerk of the Prison, recalled. Pro- 
duces the record of punishments, by which it appears, that 
Rogers, during the six months previous to the homicide, 
was punished, on the 9th of April, 1843, with one day’s 34 
TRIAL OF ABNER ROGERS, JR. 
solitary confinement, for disobedience of orders ; on the 14th 
of June, for making disturbance in his cell, was showered 
with half a barrel of water; and on the fifteenth of June, 
for the same cause, was again showered with three-fourths 
of a barrel. 
Warren B. Parker, called and sworn. I was an officer 
of the prison on the 18th of June last, and had charge 
of the cookery. About fifteen minutes after the death of 
the warden, the deputy warden came to the cookery and 
wanted me to go and search Rogers. I went to his cell, 
opened the door, and told him to come out. Rogers said, 
“ what are you going to do with me ? ” I said, “ step out.” 
He said, “ I have fixed the warden, and I ’ll have a rope 
round my neck to-night.” I made no reply, and searched 
him and found nothing. He said nothing more. Two or 
three other convicts were present at this time. This was 
about fifteen minutes after the homicide. I had seen Rogers 
before, but not on that afternoon nor on that morning. He 
seemed calm and obedient. On the strength of what he 
said, I took his suspenders from him. 
Cross-examined. His words were, “ I will have a rope 
round my neck to-night,” not, I shall have a rope. I was 
with him fifteen or twenty minutes. My testimony at the 
former trial was the same as it is now. I am sure the 
word was “ will,” and not “ shall,” and I so testified be- 
fore. 
Hiram Fogg, called and sworn. I was a watchman 
in the state prison on the 15th of June last. I know 
the prisoner and had seen him a day or two pre- 
vious to that time. On Wednesday morning, June 14th, 
I was ordered to take Rogers out of the solitary cell, 
where he had passed the night, and take him to the 
shower-bath. I went to his cell; he stepped out, and I TRIAL OF ABNER ROGERS, JR. 
35 
told him to stop there, till I deposited the key in the cookery. 
When I came back, he had gone down to the shop. His 
shoes were down at the heel and he had no cap on his head. 
I found him in the shoe-shop talking with Mr. Sargent, the 
overseer. As he saw me enter, he passed down to the lower 
end of the shop. I followed him down and asked him how 
he came there. He answered, “ I thought you were going to 
shut me up.” I told him he had better go with me, his pun- 
ishment would be light. He said he should not go. I spoke 
kindly to him then. I turned my head round for an instant 
toward the north part of the shop, and he collared me and 
pushed me back against the door at the west end of the shop. 
I recovered myself, and Mr. Sargent and others came to my 
assistance. Some one asked Rogers if he would go with 
them. I said, if he went widi any body, he must go with 
me. They then said, “ Rogers you had better go, you ’ll not 
be hurt.” He said then, “ I will go.” I shut him up in the 
cell, where I found him, and reported his resistance to the 
warden. Five minutes afterwards, I carried him to the 
shower-bath and gave him half a barrel. He said he would 
rather take six barrels, than two of the cats. I did not see him 
again till Thursday morning, when I saw him coming down 
from the hospital; there was nothing unusual in his appear- 
ance ; I had orders to punish him again that morning with 
the shower-bath and was looking after him. I suggested to 
Rogers, that it would be well to defer his punishment till noon ; 
and on going to Mr. Lincoln, who was in the blacksmith’s 
shop, he assented. I saw Rogers at half past twelve o’clock ; 
I was talking with Mr. Sargent when the bell struck. Rogers 
went into the stone-shed; I went there; Rogers had not 
formed with his division. The deputy-warden told him I 
wanted him, and he turned and came back to me. I told 
him I wanted him to go to the shower-bath. He made no 
objection ; I saw nothing peculiar in him ; I gave him three- 36 
TRIAL OF ABNER ROGERS, JR. 
fourths of a barrel; he said nothing when he came out; he 
went across the yard, and I did not see him again till Friday 
morning, the day after the murder, at quarter before six. The 
deputy-warden was with me; Mr. Dwight was not with me. 
I unlocked his cell door, and told him to step out and go to 
the farther end of the arch. He obeyed me and seemed to 
understand what I said. He sat down on the bench and ate 
his breakfast. His hands were chained behind him. I think 
I raised the plate of rations to his mouth. He did’nt say 
much at this time. He said, I recollect, that there was checker- 
berry in his food, and he thought, some on his leg. He did’nt 
eat much and looked rather wild. Should think that Dr. Bell 
and Mr. Dwight called after breakfast. 
I think he was taken out of his cell again that morning 
when he was visited by the Chaplain, and Mr. Sumner, the 
inspector. At this time he did’nt say much, he seemed pretty 
calm. Mr. Sumner had some conversation with him. At 
quarter past one, Mr. Dwight went in with me to see him. 
Some conversation took place then ; I can’t say whether there 
was a prayer made by Mr. Dwight or not, and do not recollect 
the conversation. He took his dinner, and I think I took his 
hand-cuffs off. At half past five P. M. of the same day, five 
of the Executive Council came to the prison and went to see 
the prisoner. They had some conversation which I do not 
particularly recollect. I think Air. Gates had the most to say 
to him. He reminded him, I think, that he was a murderer; 
and alluded to the widow and children of the deceased, and 
intimated what would be his own probable fate. I recollect 
Rogers said, “ I hope they’ll allow me a fair trial.” 
Next morning, the 17th, I saw him again ; took him out of 
his cell; two of the convicts were with me. Rogers said that 
there was checkerberry in his food. The person who had 
brought it, thereupon broke off a piece, and said there was no 
checkerberry in it. Upon this, Rogers ate some of it; he TRIAL OF ABNER ROGERS, JR. 
37 
looked rojnd while eating, and said, “If we had a pack of 
cards here, now, we’d have a game of loo. There’s just 
enough of us for a game.” I waited for him to finish his meal 
and then gave him a bed; he had’nt had one, before that 
morning, since he had been in the old prison. He said some- 
thing about Simmons, one of his fellow-convicts, at this time ; 
but I do not recollect what. He went back to his cell, and I 
did’nt see him again till half past five, P. M. Then, he told 
me that he felt better; that he had got some sleep. I saw 
him Sunday, looking at the corpse, in company with several 
persons, and again Monday A. M. He was pretty comfort- 
able then ; I did’nt see any derangement about him. In reply 
to some one’s question, I heard him say that he was thirty 
years old. 
Cross-examined. Rogers might have said, on Wednesday 
morning, when I had the scuffle with him, that “ I wras going 
to shut him up in the old cells and kill him.” I did’nt notice 
any unusual excitement in his manner that morning. It sur- 
prized me that he should clench me. I don’t recollect ever 
hearing Mr. Lincoln say, that he thought Rogers was sham- 
ming it — don’t remember his assigning any reason for having 
him showered. Diamond and Savary were the two convicts 
who accompanied me Saturday morning. I do not recollect 
Savary’s being with me on Friday. I heard Rogers speak 
about the poco game, after the homicide, several times. It 
was Savary who fed him Saturday. Rogers might have said 
at that time, that his joints were swelled. 
(Some time later in the afternoon, after Mr. Bemis had com- 
menced his argument, this witness was recalled at the request 
of Mr. Parker, and Mr. Bemis giving way, pioceeded to add 
to his testimony as follows: (For the sake of connexion this 
testimony is here inserted continuously.) 
I have omitted some items in my testimony, I find, on look- 
ing at the notes of the various conversations which I kept. 38 
TRIAL OF ABNER ROGERS, JR. 
On the morning of the 17th of June, Rogers said, if the 
warden had let him go six months before, he would have been 
still alive and among his friends. He observed that his health 
was better than it had been any time since he was in prison. 
On the 19th, he alluded to my scuffle with him Wednesday 
morning, and said that he had done wrong in taking hold of 
me; he thought I was going to shut him up in the old prison. 
He said he supposed his trial would come on in July, and 
that he should’nt live more than twenty days — that no mortal 
could save him from hanging, for it would never do to over- 
look his offence, the warden’s office was so responsible an one. 
He asked me if I had never known a similar case. I told him 
I had not; but says he, “ did you never read of such a thing ? 
I have read of men’s doing such things when they were not 
in their right minds.” He asked if his father would’nt come 
to see him again. He said he was afraid that if he had found 
a knife on his bench when he clenched with me, he should 
have used it on my person — that he should have fought as 
long as he could stand. 
On the 21st he said no mortal could save him — that God 
had brought this upon him to punish him for his wicked life. 
On the same day he also said, that if the warden had let him 
go two years before, he should have been alive, and he, him- 
self, out among his frends. He recollected the convicts taking 
hold of him in the yard, after the homicide, at this time — 
(Rogers volunteered this conversation.) — His account of him- 
self, was, that he did ’nt know where he was, nor what he had 
done. He said the checkerberry was all his imagination ; the 
devil had got into his head. He said he thought he heard 
Mr. Bemis and the Governor coming to take him out of prison 
the night before. The 22d, he said he had slept well; and 
he ate well- He said he heard Sam Robinson say, that he 
never knew one to live over twenty-four hours in his case; 
but that the devil had got into his head ; Sam Robinson never TRIAL OF ABNER ROGERS, JR. 
39 
said so. On the 23d, he said he knew that the warden could 
get him punished or not, for that it was just as he said. Dr. 
Bell visited him that morning about ten o’clock, and told him 
who he was. On the 24th, he told me that he had been 
looking forward to having his liberty ; but that this was brought 
upon him to punish him for the wicked and abandoned life 
which he had led. He wished to see Mr. Curtis. Mr. Curtis, 
the chaplain, came to visit him and had some conversation 
with him. Mr. Curtis asked him if he had’nt said, when Rich, 
(one of the convicts) committed suicide some five years ago, 
that he was a fool for killing himself before he had killed the 
warden; and Rogers acknowledged that he had said so. 
Cross-examined. It was Saturday, the 17th, that Rogers 
first said that he had got some sleep and felt better. He 
spoke a number of times of the checkerberry and poco games 
being all his imagination. He did speak of it, as if he once 
thought it a reality. I was on duty in the guard-room the 
night of the 18th, near where Rogers was confined in the 
old prison — think I did hear some pounding and hallooing. 
I thought perhaps it was Rogers, but did not go to him. I 
did once hear Rogers say that it was a dreadful thing for 
Mr. Lincoln’s family to have him taken off so. When 
Rogers talked with me, it was frequently so fast that I could 
not understand him. He interrupted himself while eating, to 
say checkerberry and poco. (Much of the cross-examination 
of this witness is omitted, directed to show the jury that he was 
prejudiced against the prisoner, and had volunteered in behalf 
of the prosecution. No material facts, however, were elicited.) 
Joseph Tally, called and sworn. (This witness, it was 
agreed, had been made a competent witness, on behalf of the 
government, by pardon.) I have known defendant three years. 
I was in the habit of cutting his hak at the state prison, being 
barber there. I have heard him speak of Mr. Lincoln in a 
threatening manner, twice. The first time was about five 40 
TRIAL OF ABNER ROGERS, JR. 
months before I left the prison, which was on the 15th of Feb- 
ruary last. I was cutting his hair, and I asked him why he 
got into trouble so often. (He had been showered that morn- 
ing.) He blamed the warden for punishing him so ; said he 
had been left out by Mr. Braman. He then added about the 
warden, “ d n him I’ll fix him.” I don’t know that any- 
thing more was said at this time. Two or three months 
after, in the shoe-shop, he asked me if anybody was going 
over to get an additional sentence. I said I did’nt know. 
Then he said he supposed the warden would put it on to 
him more than the others. But, says he, “ I’ll fix him in the 
prison, or out.” I told the warden of this last, and he only 
laughed at it. 
Cross-examined. Rogers was punished very frequently, 
and had been showered the morning of the first conversation 
I have related. I told something of this conversation to Mr. 
Warren B. Parker, the officer. I have not told anybody in 
the House of Correction, that I was pardoned out to testify — 
or that I testified for money — don’t know that I ever spoke 
to Rocheford, a convict, there, about testifying in this case — 
have not been told by anybody that it was more important to 
use the word “ fix,” than the word “ revenge,” which I used 
on the former trial in testifying about this matter. 
Galen Holmes, called and sworn. I am employed at the 
Leverett-street jail, where the prisoner has been confined 
since the 22d of June last — am watchman there —have seen 
Rogers four times a day while in jail — should think that he 
had been rational during that time — have not seen any 
symptoms of derangement. 
Nathaniel Coolidge, called and sworn. I am jailer of the 
Leverett-street jail. I received the prisoner into custody 
some time in June last —have frequently seen him during 
his confinement — have not noticed any marks of derange- 
ment about him. He has been a good prisoner. TRIAL OF ABNER ROGERS, JR. 
41 
Isaac A. Coolidge, called and sworn. I am deputy jailer 
— have known Rogers, in jail, since June last — have not 
noticed anything uncommon in his deportment as indicating 
insanity. 
Mr. Parker here stated that he rested the case for the 
prosecution, unless he should have occasion to offer testimony 
hereafter to rebut the case made out by the defendant; and 
at half past five, P. M., Mr. Bemis opened for the defence, 
substantially as follows: 
With leave of the Court, and yours, Gentlemen of the Jury, 
The prisoner is called upon for his defence, when as yet 
the true nature and character of the act with which he is 
accused have hardly begun to appear. Notwithstanding the 
apparently strong case made out by the government, hardly a 
particle of the real truth of the transaction, so to speak, has 
yet developed itself. Indeed, to one acquainted with the 
whole history of the homicide, as the prisoner’s counsel from 
their situation necessarily must be, it is a matter of surprise, 
in considering the testimony applicable to the case, to observe 
how it was possible, even for the ingenuity and practised skill 
of the state’s attorney, to select from the evidence so much as 
he has adduced for his purposes, which should at the same 
time afford so little indication of the real issue to be submitted 
to your judgment. Now, the act stands before you one of 
unprovoked and unjustified atrocity. And yet, I think you 
must have already demanded in your own minds some further 
proof of a motive or a malicious intent on the defendant’s 
part, and some further proof of a sound mind at the time of the 
deed, than are afforded by the legal presumptions which the 
prosecuting officer urges upon your notice, and upon which 
he states that he relies. 
But, undoubtedly, he is correct in asserting that these 
presumptions throw upon the prisoner the burden of showing 42 
TRIAL OF ABNER ROGERS, JR. 
his want of sanity, if he can, and that it is for him to assume 
the task of developing the truth to a further extent, if the 
truth will constitute his justification. 
But before proceeding to state his defence, the prisoner’s 
counsel cannot but congratulate him, on the more fortunate 
position in which he stands for his trial, now, than he stood 
on the former occasion, before another jury. Then, the 
intimation of the existence of a defence had hardly been 
made. The newspapers had, indeed, hinted, that his counsel 
would set up for him the plea of insanity ; but that there was 
anything in the plea itself, wras, we believe, a perfect surprise 
to the jury as well as to the community at large. Now, with 
the evidence of that trial before them, and made the subject 
of general discussion, a doubt has at least arisen in the public 
mind, in which you have probably participated, whether the 
prisoner is altogether guilty: — Whether there is not a chance 
of the trutli of his story, that he was unconscious of, or 
irresponsible for, the act at the time of its commission : —• 
Whether there may not be another version of this unhappy 
tragedy, which shall change it from one of criminal atrocity 
into an accident of disease; and which shall at any rate 
demand the most rigid scrutiny before it is adjudged a case 
of murder, and worthy of the penalty of death. 
So far, the defendant’s position is a less critical one than 
on the former trial. And yet there is so much against him, 
even now — the task of developing the truth in regard to 
this transaction is so difficult an one, — that, for myself, I feel 
oppressed and almost overwhelmed with the responsibility 
which belongs to the humble share I have undertaken in this 
matter. To defend one accused for his life, is at any time a 
sufficiently anxious and responsible duty for counsel. But 
when the defendant’s situation is beset with as many difficul- 
ties and disadvantages as the prisoner’s ; he a convict, and 
the second time a prison-inmate ; his victim a public officer TRIAL OF ABNER ROGERS, JR. 
43 
high in the esteem of the community, and surrounded by an 
extensive acquaintance and circle of relatives and friends; 
and the only defence, that of insanity; — one of stronger 
nerves and higher powers than I possess, might well feel him- 
self unqualified for the undertaking. 
Accordingly, I would gladly shrink from the duty which 
was at first imposed upon me, and which I have since volun- 
tarily entered upon, but that the exigencies of the occasion 
now demand its fulfilment at my hands. And it shall be 
performed to the best of my endeavors. Yet permit me to 
say, that I feel a confidence in the course of justice, human 
and divine, which forbids any substantial distrust of the just 
issue of these proceedings. I believe that that providence 
above us, 
“ Which shapes our ends, 
Rough-hew them how we will,” 
will not permit the truth to be overwhelmed or obscured 
through any imperfections or mistakes of mine, in an issue so 
vital to the unfortunate prisoner, as this, and so momentous 
to human justice and social law. With comparative self- 
possession and equanimity, then, fortified as I am with the 
able cooperation of my senior associate and friend, I proceed 
to lay the prisoner’s case before you. 
He is, undeniably, a prison-convict, and has been more 
than once the subject of punishment. But is there anything 
in this circumstance which should deprive him of the right 
of a fair and impartial trial ? Nay, is there not something in 
the fact, that he committed his crime, (if it be one) while un- 
dergoing the sentence of the law, which should entitle him to 
all the privileges of the law ? At the time he dealt the fatal 
stroke to the deceased, the law was exacting from him the 
highest penalty known to our institutions, save that of death ; 
his victim was the officer of the law; and his provocation, if 44 
TRIAL OF ABNER ROGERS, JR. 
any, grew out of the infliction of his sentence. Besides, too, 
at the moment of the act, was he not embraced within the 
very folds of the law — encompassed with the safest custody, 
and surrounded with the amplest proof? Where, if ever, 
then, could a case be named, where all the impartiality and 
deliberation known to the course of legal procedure should 
be more scrupulously observed, than here ? 
And yet the sentiment has reached the ears of his counsel, 
that the defendant ought to have been dealt with summarily, 
at the moment of the homicide; and that, for example’s sake. 
As if the life of a human being were nothing compared with 
the benefit of a momentary intimidation of prison-convicts, 
by its extinction ! As if the enforcement of the law in an 
institution specially set apart for the purpose, were to be 
secured by violating it in as flagrant a manner as it had been 
infringed ! As if prison-convicts were beyond the pale of the 
law, when the very establishment of state-prisons is due to 
their being thought worthy of its protection ! 
But I trust that the sentiment in question, has never been 
heard beyond the prison precincts ; and that if uttered there, 
it may have had for its excuse, the apprehension of danger 
which a system of force and coercion is always apt to inspire 
in the minds of those who are obliged to administer it. 
Really, however, to notice the connexion which the sub- 
ject of prison-discipline has with the prisoner’s case, how 
much more expedient that the prisoner should be fairly tried 
and legally acquitted, if truly insane, and believed to be such 
by his fellow convicts, than that he should be oppressed and 
unjustly condemned, merely because he is a convict ? How 
much more creditable to human nature, and satisfactory to 
those connected with prison-management, themselves, to 
believe that a transaction like the present, could only have 
proceeded from an insane impulse, than have been the result 
of deliberate contrivance and cold-blooded barbarity ? Let TRIAL OF ABNER ROGERS, JR. 
45 
this deed be shown to have been designed, and whose faith 
in human conduct would not be shaken ? Who could any 
longer doubt, that man in some states of degradation, may be 
entirely lost to the affections of humanity, as well as to the 
dictates of reason ; and that prison-discipline hereafter should 
be graduated for the treatment of fiends, and not of human 
beings ? No ! gentlemen. Faith in the better feelings of man, 
and confidence in his better reason, are, after all, the founda- 
tion of penitentiary-government, as they are elsewhere the 
keys to human control; and if you take them away or destroy 
the belief in their existence, you convert prisons into recepta- 
cles of demons and not into institutions of reformation and 
improvement. I do not say this to lead away your attention 
from the inquiry, whether the prisoner’s conduct was real or 
pretended, (for on this point we challenge the minutest in- 
vestigation,) but that if you become satisfied, he was really 
laboring under some disorder of the reason, you may not, 
in any degree, fear to absolve him from punishment, through 
fear of pernicious example. Rather believe, that the im- 
partial and upright administration of the law, will help the 
execution of the law ; and show, that no man, however hum- 
ble— however much the object of legal animadversion here- 
tofore — is beyond the pale of equal justice, or the fair 
adjudication of his fellow-citizens. 
But the prisoner’s case does not labor so much from consid- 
erations such as have just been alluded to, as from what we 
believe is the popular distrust of his defence, generally, viz. 
that of insanity. 
The common opinion has it, that this plea is abused — that 
it has become so common, that it should hardly be listened 
to with patience — that it is little else, in fact, than a general 
pretext for the worst crimes. 
If this were so, indeed, we should have before us, at the 
outset, an almost hopeless task, to gain a hearing for our 46 
TRIAL OF ABNER ROGERS, JR. 
cause. But we do not believe that the prejudice alluded 
to is one deep-founded, nor, in reality, justly entertained. 
On the other hand, we undertake to say, that insanity, as a 
defence to criminal prosecutions, is not pleaded so often as 
it justly might be ; and that the danger lies, rather on the 
side of paying too little, than too much, regard to it. 
Perhaps, one reason why this plea seems to have become 
so frequent, is, that according to the testimony of those ac- 
quainted with the matter, insanity has more than proportion- 
ally increased with the growth of population in this, and 
other countries. Then, I need not allude to the well known 
fact, of the increased knowledge of medical men and the 
community, upon the subject, leading to the detection of the 
disorder in supposed criminals, who in former times would 
unquestionably have suffered as murderers and malefactors. 
Again, may there not be an exaggerated idea abroad in the 
community, of the actual number of instances of acquittal, 
on the ground of insanity, arising from every such case being 
made the subject of comment and notoriety ? And is there 
not something in what is said to be a national trait of ours — 
an American distrust of being deceived — to account for an 
over-jealous suspicion of this defence in our community ? 
But, without inquiring into the origin of this distrust, what 
is the fact, in regard to this plea of insanity being abused 
among us ? Where are the cases of those who have evaded 
justice under its cover? 
Am I pointed to recent trials, such as have occurred in 
New York, in the instance of an unfortunate, and deeply to 
be pitied young woman, by the name of Norman ? — Or to 
that in Philadelphia, where a person named Singleton Mercer, 
was tried for the murder of Hutchinson Heberton ? — Who 
can fairly say, that these are cases at all connected with the 
point in question ? Who doubts that any other plea to 
which a decent name could have been given, (though I am TltlAL OF ABNER ROGERS, JR. 
47 
not prepared to say, there was not actual insanity in both 
instances, nay, am strongly inclined to think there was,) 
would not have availed as well as that of insanity, with the 
respective juries who sat upon them ? Laying aside, then, 
such instances as these, which do not fairly belong to the 
argument, where, I ask again, are the cases of simulated in- 
sanity successfully practised, to be found ? I have in mind 
to mention another recent case of considerable notoriety, 
where the simulation of insanity was indeed attempted, but 
with such a result that I do not scruple to allude to it. I 
refer to the case of the Scotch woman, Christiana Gilmour, 
who was demanded up, a few months since, in New York, 
as a fugitive from justice, from her own country, on a charge 
of having murdered her husband. The jury may per- 
haps recollect, that she was defended for a while on this 
ground, of being insane. But was the defence successful; 
and how long did it blind the eyes of justice ? Not a phy- 
sician could be found to give a deliberate opinion in favor of 
her derangement; and the simulation was exposed, so to 
speak, before it had been fairly assumed. 
But rather than allude to recent occurrences which may 
be in your own recollection, or single out individual cases 
which may be possibly objected by the state’s attorney, hear 
what is the concurrent testimony and consolidated experience 
upon this point, of those who have best considered this mat- 
ter, and are most competent to express an opinion; men who 
from their position, in having the custody of all, or nearly all, 
the criminals exempted from punishment on this account, as 
well from a long acquaintance with the subject of insanity, 
generally, are eminently qualified to be judges. 
Dr. Woodward, the superintendent of our own state hos- 
pital, and whom you will have the pleasure of hearing testify in 
this case, says, in page 73, of his Tenth and last Report to the 
Legislature, “ Of all the cases that have come to my know- 48 
TRIAL OF ABNER ROGERS, JR. 
ledge, and I have examined the subject with interest for many 
years, I have known but a single instance, in which an indi- 
vidual arraigned for murder, and found not guilty by reason 
of insanity, has not afterwards shown unequivocal symptoms 
of insanity in the jails or hospitals where he has been con- 
fined : and I regret to say that quite a number who have been 
executed have shown as clear evidence of insanity as any of 
these.” 
So, Dr. Bell, of the McLean Asylum, and whom we also 
have the pleasure of summoning in this case, remarks in one 
of his annual reports, “ that for one real criminal acquitted 
on the score of insanity, there have been a dozen maniacs 
executed for their acts.” Dr. Brigham, formerly of the Hart- 
ford Lunatic Retreat, and now superintendent of the New 
York State Hospital, in his Eighteenth Annual Report of the 
former institution, page 19, (note) holds the following lan- 
guage : “ I know it is a common, but frequently, I suspect, 
a careless remark, that the plea of insanity is too often suc- 
cessfully adduced as an excuse of crime. So far as I have 
any knowledge, this is not the case. I do not know of a 
single instance where the insanity of an individual has been 
certified to by those well informed and well qualified by ex- 
perience with the insane to judge on such a subject, that time 
and public opinion has decided to be incorrect. While I know 
many instances where the plea has been disregarded, which 
time has shown ought not to have been. It might be well 
for those who, in halls of legislation, or in courts of justice, 
confidently assert that insanity is frequently feigned so as to 
deceive those well informed on the subject, to adduce in- 
stances of the fact.” 
The same writer mentions a case in point, where an insane 
man was executed in that state, (Connecticut,) which may 
properly be cited in this connection. It is mentioned on page 
22 of the same report, and is as follows. (The events oc- TRIAL OP ABNER ROGERS, JR. 
49 
curred in Litchfield, in 1785, and are related by a contempo- 
raneous correspondent of the Connecticut Courant.) 
“ Last Wednesday, Thomas Goss, late of Barkhamstead, 
was executed at this place pursuant to the sentence of the 
superior court, for the murder of his wife. It seems he had 
adopted the idea sometime in October, 1784, that wizards 
and witches haunted him, and under pretence that his wife 
was a witch, he justified his conduct in depriving her of life. 
Under such infatuation, he ordered his attorney, in most 
peremptory language, not to apply for a reprieve to any 
human tribunal, alleging that his Heavenly Father had for- 
bidden all such proceedings. He called himself the second 
Lamb of God ; said he was brother of Jesus Christ, and 
sometimes said he was the child born of the woman men- 
tioned in the revelation of St. John, before whom the dragon 
stood ready to devour the child, &c. To such extravagant 
ideas, he added, that the sheriff could not hang him; that his 
Heavenly Father would interpose if the attempt were made, 
and he be liberated; and that 30,000 males above fifteen 
years of age, would be instantly killed by the shock in North 
America. He pertinaciously adhered to such opinions to the 
last moment of his life. The night preceding his execution, 
he slept well. In the forenoon of the same day, he slept 
calmly a considerable length of time; at dinner he ate 
heartily. On his way to the gallows, and while there, he 
appeared calm and unmoved ; not the least emotion could be 
discerned in his countenance, nor the least perturbation in his 
speech, and the last word he said was, that the sheriff could 
not hang him.” Dr. Brigham adds, “ the late Dr. Miner 
informed me, that Goss, when on the gallows, exhibited the 
utmost unconcern, leisurely took a chew of tobacco; and 
that this, and his indifference so exasperated the people 
assembled, that they rejoiced at the death of one they believed 
hardened in guilt — one whom we must now regard as insane, 50 
TRIAL OF ABNER ROGERS, JR. 
and whose life, had the circumstances occurred at the present 
day, would not have been thus sacrificed.” 
Nor is this the only instance where justice has flagrantly 
erred in our neighborhood, in inflicting the extreme punish- 
ment of death upon the insane. I may allude to a much 
noted case occurring in New Hampshire, in the year 1833, 
where a young man named Prescott, was hung for the murder 
of his adopted mother, Mrs. Cochran. (Some particulars are 
given in 1 Beck’s Med. Jur. 623. A fuller report of the 
trial I have by me, in a pamphlet edition, printed at Concord, 
1834.) The details of that case are perhaps too long to be 
repeated here. But it may be sufficient to say, that the con- 
viction was so doubtful a one, that the court set aside one 
verdict of guilty, and, as I have been informed, joined in an 
application to the executive, for a pardon upon the second ; 
and that the better opinion of those who have investigated 
the matter and are competent to judge, has now settled down 
into the belief, that the young man was quite irresponsible for 
the act he committed. At any rate, the language held by his 
distinguished counsel, the Hon. Ichabod Bartlett, of Ports- 
mouth, on a subsequent occasion, before one of the higher 
courts of that state, may well warrant the belief that justice 
in this instance also made a fatal mistake. As I happen to 
have his reported language by me, permit me to repeat 
it. It is in Ferguson’s trial, in 1841, in the same state. 
The counsel for the government has said, that under our 
forms of trial, ‘ it is impossible that the innocent shall ever 
suffer.’ c Impossible that the innocent shall ever suffer 1’ 
While these words are uttered, I would to Heaven that I 
could forget the horrible scene that has been so recently ex- 
hibited in a neighboring county; — the public execution — no ; 
by its true name, the official murder, of a poor insane boy, 
as irresponsible for his acts as the sleeping infant in the 
cradle.” TRIAL OF ABNER ROGERS, JR. 
51 
Across the water, too, under the jurisprudence of the 
mother country, we hear of other such lamentable mistakes : 
not, be it noted, in days of ignorance and comparative bar- 
barism, but within the improvements and discoveries of mod- 
ern science. A man by the name of Bowler was executed 
in this way in England, in 1812, whose case is now generally 
agreed to have been a reproach upon justice. (The case is 
found reported in Shelford’s Lunacy, p. 461.) This man had 
once been adjudged a lunatic under a formal inquiry insti- 
tuted for that purpose. He was so insane previous to the 
homicide which he committed, that he would eat his meat 
raw, was in the habit of laying out in the open air, in the 
rain, and was considered so liable to commit suicide, that a 
watch was kept upon him to prevent his executing his pur- 
pose. Notwithstanding what is considered a fair charge from 
the court, he was found guilty and ultimately suffered death. 
Medical writers alone do not condemn this execution ; but 
one of the English judges themselves, in the recent trial of 
Oxford, in 1839, (9 C. and P. 533,) Mr. Baron Alderson, 
did not hesitate to call it a piece of barbarity. So a very 
remarkable case occurred in Scotland, in the year 1831, in 
the instance of a man by the name of Howison, (1 Beck, Med. 
Jur. 607; Pagan, Med. Jur. 229, S. C.) which may be worth 
citing, to show how far the courts may be deceived in judging 
of this kind of defence. Howison was tried for the murder 
of a widow named Geddes, to whom, so far as it appeared, 
he was an entire stranger, and against whom he was not 
shown to have had any ill will, or other motives of violence 
whatever. He was a pedler; and being seen to enter her 
house one day, was observed to leave it in a stealthy and 
hurried manner soon after. The woman was found by some 
of the neighbors who went in in the course of the day, with 
her head split open, apparently by a spade which lay near. 
Howison being arrested the next day, denied all knowledge 52 
TRIAL OF ABNER ROGERS, JR. 
of the transaction, though he was undoubtedly guilty of the 
homicidal act. On his trial he was shown to be a person of 
the most eccentric and extravagant habits ; salting his head 
and bed to keep away the w'itches, as he said; wounding his 
arms and wrists with pins and needles which he carried for 
the purpose, and sucking the blood as he ate. He made his 
ordinary meals of raw potatoes and bullock’s liver, eating a 
most incredible quantity of the former in a voracious and fil- 
thy manner. He would sally forth at night after having gone 
to bed, with a stick, and brandish it in the most extravagant 
manner, and exhibit various absurdities till his neighbors inter- 
fered. The testimony of the medical men at the trial, all 
agreed in pronouncing him insane. But the jury having 
thought otherwise, he was convicted and finally executed. 
The final demonstration of his insanity — stark madness, 
rather, as we should deem it,— was his confession the night 
before his execution, of no less than eight murders, no one 
of which had ever been heard of, and of course could never 
have been committed. 
These are a few of the many cases that might be quoted 
to this point. But perhaps they are sufficient to demonstrate 
that mistakes, and dreadful mistakes, have been committed 
on the side of disregarding the defence of insanity. At 
any rate, they may well justify the earnest remonstrance 
which those familiar with the subtle and insidious diseases of 
the mind, set up in opposition to the popular prejudices on 
this subject. Allow me, in this connexion, to quote the lan- 
guage of Esquirol, the great French master on insanity, and 
the worthy successor of Pinel. To those acquainted with his 
reputation, I believe it will not be necessary to say, that it is 
anything but that of an extravagant or over-zealous writer. 
“ Heaven forbid, that favoring materialism and fatalism, we 
should wish to originate or defend theories subversive of moral- 
ity, society, and religion. We do not intend to make ourselves TRIAL OF ABNER ROGERS, JR. 
53 
defenders of crime, and transform atrocities into paroxysms 
of insanity. But we believe that the doctrine of monomania 
is another thing than crime, excused by crime At 
the end of the fifteenth century, a royal commission charged 
to examine Martha Brossier, accused of sorcery, concluded 
their report with these memorable words : “ Nihil a demone, 
multa ficta, a morbo pauca: —Nothing from the devil, many 
things feigned, few things from disease.” This decision served 
as a rule to the judges who had to pronounce on the fate of 
sorcerers and magicians. We say, in characterizing the mur- 
derous violence of homicidal monomaniacs, “ Nihil a crimine, 
nulla ficta, a morbo tota : — Nothing from a criminal intent, 
nothing feigned, all from disease.” 1 
But, perhaps, I may seem to lay too much stress upon the 
statements and opinions of medical writers, whose professional 
zeal may have led them to express themselves with exaggera- 
tion upon this head. Hear, then, what an eminent judge in 
a neighboring state, one whose opinion I am confident will 
have no little weight with the learned bench, C. J. Parker, of 
New Hampshire, has to say about this matter. I quote a 
portion of one of his charges to a grand jury, as reported in 
20 Am. Jur. 456. 
“ The public papers, in giving reports of trials, often say, 
‘ the defence was, as usual, insanity,’ or make use of some 
other expression, indicating that this species of defence is 
resorted to in desperate cases, for the purpose of aiding in 
the escape of criminals from justice. Such opinions are 
propagated in many instances by those whose feelings are too 
much enlisted, or whose ignorance respecting the subject is 
too great, to permit them to form a dispassionate and intel- 
ligent judgment; and they have a very pernicious tendency, 
1 2 Esquirol, Maladies Menlales, 842-3, concluding remarks on Homi- 
cidal Insanity. 54 
TRIAL OF ABNER ROGERS, JR. 
inasmuch as they excite prejudices in the public mind, and 
the unfortunate individual, who is really entitled to the bene- 
fit of such a defence, is thereby sometimes deprived of a fair 
and impartial trial. They tend to make the defence of in- 
sanity odious, to create an impression against its truth in the 
outset, and thus to bias the minds of the jury against the 
prisoner, and to induce them to give little heed to the evi- 
dence, in the very cases where the greatest care, and atten- 
tion, and impartiality, are necessary for the development of 
truth, and the attainment of justice. 
“We all concur in the doctrine of law, that for acts com- 
mitted during a period of insanity, and induced by it, the 
party is not responsible ; that when the criminal mind is 
wanting, where instead of being guided by the reason which 
God bestowed, the individual is excited and led on by insane 
fury and impulse, or by the aberrations of a wandering intel- 
lect, or of a morbid and diseased imagination, or a false and 
distorted vision and perception of things, punishment should 
not follow the act as for an offence committed ; that when 
the faculty of distinguishing between right and wrong is 
wanting, the individual ought not to be held as a moral and 
accountable agent. As well, nay, much better, might we, as 
was formerly done in France, institute prosecutions against 
the brute creation for offences committed by them, and hang 
a beast for homicide, than to prosecute and condemn a human 
being, who is deprived of his reason ; for in such case there 
is no hope of a restoration to a right mind, and a reinstating 
of a fellow citizen, who has been once lost to the community, 
in the rights and affections of humanity. 
“ But if we imbibe the idea that instances of insanity are 
very rare — that derangement exists only when it manifests 
itself by incoherent language and unrestrained fury — that 
the defence, when it is offered, is probably the last resort of 
an untiring advocate, who, convinced that no real defence TRIAL OF ABNER ROGERS, JR. 
55 
can avail, will not hesitate to palm off a pretended derange- 
ment to procure the escape of his client from a merited pun- 
ishment— if in this way we steal our hearts against all sym- 
pathy, and our minds against all conviction, it is of little avail 
that we agree to the abstract proposition, that insanity does 
in fact furnish a sufficient defence against an accusation for a 
crime. 
“ There are undoubtedly instances, in which this kind of 
defence is attempted, from the mere conviction that nothing 
else can avail — cases in which the advocate forgets the high 
duty to which he is called, and excites a prejudice against the 
case of others, by attempting to procure the escape of a crim- 
inal under this false pretence ; but such cases are truly rare, 
and usually unsuccessful.” 
These abundant and eminent authorities must have satisfied 
you, I think, gentlemen of the jury, if any proof were want- 
ing, that insanity is not so often pretended as is supposed, for 
a cloak and a refuge from crime ; — that in reality the mistake, 
if any occur, is not on the side of mercy, but unfortunately 
on that of inhumanity ; — and that when a defendant on trial 
before you asserts this for his defence, you are to receive it 
with respect, and examine it with the profoundest caution 
and deliberation. 
But perhaps it is not the force of the common prejudice 
against their client’s plea which the prisoner’s counsel have 
so much to dread in this case, as another idea connected with 
this subject of insanity which is beginning to be promulgated 
in the community, and which may therefore have reached 
your ears, and gained some hearing. And that is this — that 
considerations of public expediency require that an example 
should be made of the partially insane ; that as the insane 
are capable of being acted upon by fear of punishment, and 
dread of suffering, so the contagiousness of insanity may be 
checked, and the actually affected induced to control them- 56 
TRIAL OR ABNER ROGERS, JR. 
selves by an occasional enforcement of the law upon some of 
their number. 
The argument concedes, I believe, that it is a violation of 
the established principle of law, that where there is a doubt, 
it shall go to the benefit of the accused ; but only contends, 
that it is better to hazard a possible wrong, than to omit to 
secure a probable benefit. 
So far as our case is concerned, we do not know that we 
actually come within the scope of this new doctrine, or need 
reply to it. We hope to show, not a case of partial mental 
alienation, but one so complete, so overpowering, that no jurist, 
no theorist even, would venture to deny that it is one of irre- 
sponsibility. But lest we may seem to be affected by it, I 
propose to reply to it with one or two considerations. And 
first, let me ask of the advocates of these humane and prac- 
tical theories, if they bear in mind that they themselves may 
be the next persons likely to suffer from them ? Who is it 
that are afflicted with the malady of a disordered reason, and 
in a state of mental blindness are impelled to outbreaks of 
violence and ferocity ? not the criminal and criminally dis- 
posed alone, but as likely as any, the upright and conscien- 
tious, the intellectual and well educated. The clergyman in 
his pulpit, the physician in his class room, the judge on the 
bench, nay, the jurist or magazine-writer, himself, has no safe- 
guard against the act which he wishes to correct and chastize 
by punishment. And are such persons to be immediately 
sacrificed for the quiet of society, and because others may be 
inflamed into paroxysms of insanity by their example ? Or is 
a distinction to be made on the ground of character, when 
the same act is to be submitted to the same standard of legal 
judgment, and it is the theorist, and not the vagabond, who 
is put upon his trial ? 
Again, if the effect of example is so well settled in this 
matter, and punishments the most sanguinary are therefore TRIAL OF ABNER ROGERS, JR. 
57 
the most efficacious, why do not legislatures hear from super- 
intendents of insane-asylums, for further and more cogent 
enactments for their security ? Why do we not hear of peti- 
tions for the erection of the gallows within the hospital pre- 
cints, and its use being allowed as part of the regular system 
of treatment ? These same curators of the insane are further 
accused of conspiring, as it were, against the public peace, in 
their professional zeal to exculpate this dangerous class of 
offenders from punishment. Have their accusers, let me 
ask, ever noted the singular paradox, that they are swearing 
into their own custody these same offenders against whom 
further legislation is so much needed ? 
But the argument in question is only urged against the 
partially insane ; those in whom some power of control is sup- 
posed still to be left; those whose intellects, so to speak, are 
only tainted in one spot, but are not as yet entirely infected. 
And who will undertake to draw the line between a partial 
disturbance of the reasoning powers, and a total affection of 
the whole understanding ? Disease once shown to exist, who 
considers himself capable to define precisely its effects upon 
the whole brain or other organ of the mind ? Where does the 
power of control begin to cease, and that of disease to over- 
whelm ? And yet the safer and humane way is to make an 
occasional example, say these reasoners ! — Not exactly at 
random, but where the accused and his friends are only able 
to make out one of the least clear cases of irresponsibility. 
As if the more a man were disordered, he were not therefore 
the less competent to establish it! And as if the true idea of 
justice were not that the law should befriend those most, who 
have fewest friends to testify for them ! 
Supposing a mistake to be made, and a case of overpower- 
ing disease to exist, though the proofs to establish it are only 
slight, what greater barbarity — what more like brutish slaugh- 
ter •— can be imagined, than the execution of the unoffending 58 
TRIAL OF ABNER ROGERS, JR. 
maniac ? It can only be likened to the blind cruelty which we 
see certain animals practise upon those of their species, who 
have fallen into helplessness, or have suffered some disabling 
injury. 
Again, how irreverent and almost impious, the taking of 
life under such circumstances ! Whom God hath visited, him 
man undertakes to judge and afflict with punishment. As if 
human reason were deputed to revise the course of Divine 
Providence ! As if when the hand of Omnipotence were most 
nearly or most strikingly visible in its dealings, man must 
interpose his nothingness and vanity ! Human executions are 
at any time a sufficient invasion of divine prerogative : but a 
human execution for a mystery of God’s creating, a case 
where man should pause with feelings of wonder and rever- 
ence — what more daring or unholy in the sight of heaven ! 
Some of the ancients, we are informed, regarded with pecu- 
liar sanctity, and paid especial honors to the insane. How 
much more appropriate and well-seeming, at that, than to 
oppress them with unmerited and unconscious sufferings ? 
No! gentlemen ; on this point of judging of the responsi- 
bility of the insane for their acts, you will not take the opinion 
of theoretical speculators, viewing the subject from a distance, 
and starting, as we conceive, from false notions of the need 
of society for protection and of the expedient mode of securing 
it; but you will go to those practically acquainted with the 
matter, and who have met it face to face in all its bearings. 
Ask of the friends and medical curators of the insane, how 
they may be best controlled, and what motives and methods 
may be best brought to bear upon them. Ask of the judges, 
themselves, who are so frequently called upon to try these 
cases. They will not tell you to take theories and speculations 
for your guide, but to look into the facts of each case for 
itself, and judge as you would like yourselves to be judged 
under similar circumstances. Much as they are supposed to TRIAL OF ABNER ROGERS, JR. 
59 
be fettered by the dogmas of ancient law, when are they to 
be found consenting to the execution of a man of whose in- 
sanity the testimony raises a probable presumption ? On this 
point, I cannot but draw attention to their real sentiments 
and actual decisions, as contrasted with their legal phraseol- 
ogy. Thus, look at the direction of Lord Kenyon, in Had- 
field’s case, (already alluded to,) advising a dropping of the 
prosecution, though no relaxation of the old rule of distinguish- 
ing between right and wrong seems to have been permitted. 
A case where the prisoner was confessedly capable of making 
the distinction, and whose very homicidal deed was based 
upon the expectation of its consequences. So, look at the 
advice of C. J. Tindal, in the late case of McNaughton, 
(also quoted,) to the solicitor-general to the same effect; and 
yet followed by a charge to the jury, which, if they had 
regarded in its literal phraseology, it seems to me could 
hardly have led to an acquittal of the prisoner, short of a 
violation of their oaths. So I draw the same argument from 
the practical result of the late opinion of the judges in the 
house of lords, which has been so much urged against us. 
The jury may have understood, that after McNaughton was 
acquitted, as alluded to by the state’s attorney, one of the 
two houses of parliament, the Lords, demanded of the judges 
collectively, their opinion in regard to certain points connected 
with the defence of insanity — Whether, as the law then stood, 
it admitted the excuse of certain specified kinds, or degrees 
of insanity, and whether some precise rule might not be laid 
down which should cover all shapes in which the defence 
should arise. 
What was the practical reply of the judges ? That they 
were unwilling to give any answer which might serve for a 
general rule on this point, but that every case must be tried 
on its own merits. They say, “ they deem it at once imprac- 
ticable, and at the same time dangerous to the administration 60 
TRIAL or ABNER ROGERS, JR. 
of justice, if it were practicable, to attempt to make minute 
applications of the principles involved in the answers given 
by them to their lordship’s questions.” They therefore nar- 
rowly confine themselves to the abstract questions proposed. 
Mr. J. Maule, who delivered a separate opinion, goes even 
farther in declining to lay down any precise rule, which 
should serve as an unbending precedent. In the debates 
which preceded the putting these questions, in the House of 
Lords, Lord Lyndhurst, the Lord Chancellor, had also expres- 
sed himself with great doubts of the propriety of undertaking 
to make a universal declaration of law in the matter. His 
lordship had perhaps his experience fresh in mind of trying 
Offord’s case> (reported in 5 Car. and Payne,) where, upon a 
state of facts quite similar to the present, the jury had found 
a verdict of acquittal. So, also, I might instance the conduct 
of the trial of Oxford, which occurred in 1839, (rep. in 9 C. 
and P. 525,) as indicating the most liberal and humane re- 
gard to the rights of the insane, on the part of the presiding 
judges. The course of the New Hampshire judges in Pres- 
cott's case, just alluded to, affords another specimen, also, of 
judicial tenderness and consideration in dealing practically 
with the defence of insanity. 
Bat I trust I have said enough to dispose of the theories 
and theoretical speculations, regarding the punishment of the 
insane, which are afloat in the community, and which may 
reach your notice more directly through some of the citations 
which the state’s attorney has intimated he is about to make 
in this case. It will be sufficient for you, I doubt not, to 
apply the law as it is, and as you will receive it from those 
practically best skilled to explain its application, without un- 
dertaking to legislate upon this unfortunate prisoner’s case, in 
reference to doubtful propositions of expediency and general 
good. You are satisfied also, I apprehend, that insanity, when 
a real defence, is a just one, and that of all others, it should TRIAL OF ABNER ROGERS, JR. 
61 
perhaps be listened to with the greatest care and deliberation, 
and the most scrupulous solicitude to guard against error. 
If the prisoner then, before you, were really insane at the 
time of the homicide, he has a defence above reproach and 
as solemnly to be regarded as any other which could be 
named. 
Was he then insane at the time of the act ? And how are 
you to be satisfied of it ? 
is Insanity? — And such Insanity as exonerates 
from criminal responsibility ? 
(Mr. Bemis at this point suspended his remarks, to allow 
the introduction of the additional testimony of the prosecu- 
tion as above noticed, having spoken a little short of an hour. 
At 9 A. M., Wednesday morning, after recapitulating briefly, 
he resumed as follows.) 
You are somewhat singularly situated, gentlemen, in this 
regard. All of you, perhaps, come here with little or no 
experience on this head, and yet the defendant’s life depends 
on your decision of this issue of sanity or insanity. Of 
course, in the short interval which this trial will occupy, you 
cannot inform yourselves to any satisfactory extent upon this 
great and difficult subject. What course, then, will you pur- 
sue to discharge your duty between the State and the prisoner ? 
Your own best judgment must dictate upon whose opinion or 
judgment in the matter you will rely; for, certainly, except 
in a very plain case, you will not be willing to form, and be 
governed by one of your own. Shall it be according to the 
statements of the respective counsel, (perhaps as unacquaint- 
ed with the matter as yourselves) ; the direction of the learned 
judges on the bench ; or the view s and opinions of the wit- 
nesses who shall be produced upon the stand ? 
For our own part, so far as judgment and opinion is con- 
cerned, we shall only ask you to believe such as proceed 
from witnesses, whose long experience and familiarity with 62 
TRIAL OP ABNER ROGERS, JR. 
this subject, will place their statements, as we hope, above 
the reach of cavil or doubt — men, who, if their candor and 
veracity is equal to their professional skill and scientific rep- 
utation, will give you such light, we trust, on this matter, 
that you may feel safely authorized to act without a personal 
investigation of the medical considerations involved in it. 
We shall not ask you to surrender to them any of your pre- 
rogative of deciding upon the facts at issue, but shall offer 
them as competent advisers, to whom you may be supposed 
to come for an opinion, after having satisfied yourselves what 
facts, and occurrences, and symptoms, really exist in the case. 
If you esteem them the competent advisers upon these points 
of skill and difficulty, which we hope they are entitled to be, 
I think you will then be at once prepared to discharge your 
duty in a self-satisfactory and intelligible manner. 
Our course of defence then, will be, to show you the facts 
and appearances in the case, and then call competent judges 
to inform you of what those facts and appearances are indi- 
cations. 
Meanwhile, before addressing myself to the proofs in the 
case, and to the opinions of the medical witnesses, I may 
facilitate the inquiry we are about to prosecute, by briefly 
touching on some of the more general manifestations and 
characteristics of the disease we seek to investigate : — not 
with any professed scientific accuracy, but in a general and 
popularly superficial manner. 
Insanity, then, as I understand it, is regarded by the best 
authors as a disease, and subject to medical or professional 
treatment, as much as any other physical malady. Whether 
the brain is the sole, or the chief seat of the affection, it is 
not now necessary to assert. But that the disorder has the 
essential characteristics of disease, and that it yields to the 
laws of professional treatment, more or less understood, is, I 
believe, well agreed. According to the best writers, it seems TRIAL OF ABNER ROGERS, JR. 
63 
to be considered under two great divisions — idiocy or imbe- 
cility, and mania and (its consequent) dementia. It is with 
mania alone, or active insanity as I may call it, to distinguish 
it from the other kinds of passive insanity, that we have to 
do on the present occasion. But mania is subdivided into 
various distinctions, as monomania, moral insanity, &c. 
Without going at all into these, permit me to notice a mat- 
ter bearing upon the general subject of insanity, which will 
hereafter show itself in the highest degree important. 
A common error prevails in regard to derangement, that it 
must be total in its character; either manifesting itself in 
wild and ungovernable, and incongruous actions, or in stupid 
and passive imbecility ; and that one cannot appear like other 
men in most respects, ordinarily, and yet be the subject of 
insane treatment for some particular failings in judgment and 
conduct. This was the old notion of doctors and judges. 
An English judge, (Mr. J. Tracey) in 1723, laid down the 
law that for a man to be insane, he must have no more rea- 
son than an infant, a brute, or a wild beast. Another Eng- 
lish judge, (also of an early day, I presume,) proposed a 
knowledge of the multiplication table as a test of legal sanity. 
But it is now well settled, no less in medical science, than 
in law, that one may be sound in most respects, and yet 
insane in others, and therefore free from responsibility for 
acts springing from the particular unsoundness. This doc- 
trine, (so far at least as criminal responsibility is concerned,) 
seems first to have been incorporated into the law of Eng- 
land, and so by analogy into that of our own country, through 
the influence of Mr. Erskine, the celebrated English lawyer, 
in Hadfield’s case, already alluded to. (27 Howell, State Tr. 
1281.) The particulars of that case, and its bearing upon the 
present, I shall have occasion to allude to, in another connexion. 
But two anecdotes are related by Mr. Erskine, in the course 
of that trial, so appropos to the point in question, that I do 64 
TRIAL OF ABNER ROGERS, JR. 
not know that I can furnish a better illustration of what I 
desire to elucidate, than by quoting them at length. They 
are somewhat familiar to the legal profession, but they will 
probably bear repeating in this connexion. 
“ I well remember,” says Mr. Erskine, “ examining for the 
greater part of the day, in this very place, (the Court of 
King’s Bench,) an unfortunate gentleman who had indicted 
a most affectionate brother, together with the keeper of a 
mad-house at Iloxton, for having imprisoned him as a luna- 
tic ; whilst, according to his evidence, he was in his perfect 
senses. I was, unfortunately, not instructed in what his lu- 
nacy consisted, although my instructions left me no doubt of 
the fact; but not having the clue, he completely foiled me in 
every attempt to expose his infirmity. You may believe that 
I left no means unemployed which long experience dictated ; 
but without the smallest effect. The day was wasted, and 
the prosecutor, by the most affecting history of unmerited 
suffering, appeared to the judge and jury, and to a humane 
English audience, as the victim of the most wanton and bar- 
barous oppression ; at last Dr. Sims came into court, who 
had been prevented, by business, from an earlier attendance ; 
from him I soon learned that the very man whom I had been 
above an hour examining, and with every possible effort which 
counsel are so much in the habit of exerting, believed himself 
to be the Lord and Saviour of mankind; not merely at the 
time of his confinement, which was alone necessary for my 
defence ; but during the whole time that he had been tri- 
umphing over every attempt to surprise him in the conceal- 
ment of his disease. I then affected to lament the indecency 
of my ignorant examination, when he expressed his forgive- 
ness, and said with the utmost gravity and emphasis, in the 
face of the whole court, ‘ I am the Christ; ’ and so the cause 
ended.” 
The other anecdote is one related by Mr. Erskine, as men- TRIAL OF ABNER ROGERS, JR. 
65 
tioned to him by Lord Mansfield. “ A man by the name of 
Wood,” said Lord Mansfield, “ had indicted Dr. Monroe for 
keeping him as a prisoner, (I believe in the same mad-house 
at Hoxton,) when he was sane. He underwent the most 
severe examination by the defendant’s counsel, without ex- 
posing his complaint; but Dr. Battye, having come upon the 
bench by me, and having desired me to ask him what was 
become of the princess whom he had corresponded with in 
cherry-juice, he showed in a moment what he was. He an- 
swered that there was nothing at all in that, because, having 
been (as everybody knew) imprisoned in a high tower, and 
being debarred the use of ink, he had no other means of cor- 
respondence but by writing his letters in cherry-juice, and 
throwing them into the river which surrounded the tower, 
where the princess received them in a boat. There existed, 
of course, no tower, no imprisonment, no writing in cherry- 
juice, no river, no boat; but the whole the inveterate phan- 
tom of a morbid imagination.” “ I immediately,” continued 
Lord Mansfield, “ directed Dr. Monroe to be acquitted ; but 
this man Wood, being a merchant in Philpot Lane, and hav- 
ing been carried through the city in his way to the mad- 
house, he indicted Dr. Monroe over again, for the trespass 
and imprisonment in London, knowing that he had lost his 
cause by speaking of the princess, at Westminster; and 
such,” said Lord Mansfield, “ is the extraordinary subtlety 
and cunning of madmen, that when he was cross-examined 
on the trial in London, as he had successfully been before, in 
order to expose his madness, all the ingenuity of the bar, and 
all the authority of the court, could not make him say a single 
syllable upon that topic, which had put an end to the indict- 
ment before, although he still had the same indelible impres- 
sion upon his mind, as he signified to those who were near 
him ; but conscious that the delusion had occasioned his de- 
feat at Westminster, he obstinately persisted in holding it 66 
TRIAL OF ABNER ROGERS, JR. 
back. And it was only by proving the particulars of the 
former examination, that Dr. Monroe established his inno- 
cence of the charge.” 
These instances serve to show the possible existence of 
partial insanity, or monomania, and its recognition by the 
courts of law. But monomania is of various kinds ; as, homi- 
cidal, suicidal, monomania with a propensity to steal, fyc. 
Again, monomania may extend to the intellectual faculties, or 
be confined to the affections and sentiments alone, in which 
case it is usually termed moral insanity. We consider the 
prisoner’s, a case of homicidal monomania ; intellectual, also, 
in its character, and so, clear of the difficulties attending the 
disputed head of moral mania. 
But, perhaps, rather than to attempt its scientific diagnosis, 
it may aid the perception of its features, to adduce the gen- 
eral particulars of some other similar cases, which are reported 
to have occurred like it, and which have been made the sub- 
ject of judicial discussion. Out of a large variety at hand, I 
select a few most in point. Hadfield's has been already 
alluded to. But as the particulars have not yet been recited, 
and as its bearing upon the present is important in a legal 
point of view, I will now narrate them more at length. 
Hadfield was tried for shooting at King George the Third, 
in Drury Lane Theatre, in the year 1800. Fortunately his 
pistol missed its aim, and no injury was done his majesty. 
But as the attempt itself was high treason by the law of Eng- 
land, he was tried for his life before the Court of King’s 
Bench. At his request, Mr. Erskine, then considered the 
most able advocate at the English bar, was assigned him for 
counsel; and he defended him in an argument which is gen- 
erally considered one of the most eloquent and profound ever 
delivered by that distinguished lawyer, and which has since 
been constantly referred to as a fund of illustration and rea- 
soning on this difficult subject of insanity. TRIAL OF ABNER ROGERS, JR. 
67 
The facts attending Hadfield’s case were mainly these. 
He had been a soldier in the army, and had received a dan- 
gerous wound in the head, which made him insane for a time, 
and he was discharged from the service. Subsequently he 
was subject to a partial derangement every year, during the 
spring and summer months, which made him imagine that he 
held intercourse with the Deity, and was himself a Saviour 
like Jesus Christ. His actions also during these periods were 
frequently the most extravagant and irrational. A few days 
before the attempt in question on the king’s life, he professed 
an intention of killing one of his own children, of whom he 
was ordinarily, particularly fond, saying that he was com- 
manded to do so by the voice of God : and had it not been 
for the interference of his wife and some other friends, he 
would probably have carried his intention into effect. Be- 
tween this occasion and the time of his attempt upon the 
king, he frequently talked in an incoherent and blasphemous 
manner. Some evidence went to show that he attended the 
preaching of a fanatical clergyman, and that from him he 
might have got the delusion which ultimately led to the crim- 
inal act, namely, that he was destined to be the Saviour of 
the world, and that he could only fulfd his mission by giving 
up his life : but that as he was not permitted to take it by his 
own hands, so he must perform some act which would subject 
him to capital punishment by the laws. Accordingly, as the 
testimony went to prove, he procured a pistol, and having 
carefully loaded it, repaired to the theatre, and took a station 
where the king would be in full view as he entered. Having 
waited for his appearance nearly three quarters of an hour, 
he rose with the rest of the audience on the king’s entrance, 
and taking deliberate aim, fired, but with no effect, as above 
mentioned, the slugs going above and below the king’s per- 
son. Being shortly after arrested, though without any at- 
tempt on his part to escape, he said he knew perfectly well 68 
TRIAL OF ABNER ROGERS, JR. 
that his life was forfeited ; that he was tired of it, and re- 
gretted nothing but the fate of his wife ; that he did not 
intend anything against the life of the king; he knew the 
attempt, only, would answer his purpose. He spoke with 
calmness, and without any apparent derangement. Many 
witnesses testified that in his whole conduct in the theatre, 
they witnessed no marks of mental aberration. 
The result of the trial was, that Lord Kenyon advised the 
stopping of the prosecution, and he was accordingly acquitted. 
Being committed to one of the insane-asylums in the neigh- 
borhood of London, he ultimately proved a decided maniac, 
and remained in custody till his death, which was reporte d in 
the newspapers a few months since. 
The law of this case is perhaps more important than the 
facts as they have been quoted, for the purpose of illustration, 
and I shall accordingly have occasion to refer to it again, in 
another connexion. 
The next case to which I shall call your attention, is one 
where the insanity was accompanied with what is called hal- 
lucinations ; the hearing of false voices or other delusion of 
the senses. It is that of Jonathan Martin, tried in England, 
in 1829, for setting fire to the beautiful cathedral of York, 
which was laid in ruins by the means. (The case is found 
reported in Shelford, page 465.) Martin had been under 
treatment as a lunatic some years previous to the commission 
of the act in question. His insanity, then, chiefly consisted 
in an affection growing out of his dreams. He particularly 
labored under delusions about religion and the clergy. After 
his discharge from the lunatic-asylum, eight years and up- 
wards previous to his trial, he had followed the trade of a 
bookseller. He had borne the character of a very religious 
man, and was by no means thought by his neighbors a person 
of disordered reason. Some persons had heard him speak of 
having dreams, but nothing showing insanity of mind. He TRIAL OF ABNER ROGERS, JR. 
69 
himself had told one witness that he had destroyed the mins- 
ter for the glory of God, and the good of the people of Eng- 
land, particularly of the people of York, who, when they 
found their fine cathedral gone, would disperse to other 
places, where they would hear the gospel; that he felt no 
condemnation of spirit; on the contrary, he was quite happy, 
and praised God for strengthening him to do so good a work. 
The prisoner, in his defence, entered into a long and very 
incoherent story. It was in substance that he had two 
dreams, which first inspired him with the thought of setting 
fire to the minster. He had first written five letters to the 
clergy, in the hope of obtaining an answer, but had received 
none. He had therefore petitioned the Lord what to do, and 
had had a dream that a cloud hung over the minster, and 
then came and settled on his lodgings. He heard a voice 
which told him it was his destiny to destroy the cathedral, on 
account of the misconduct of the clergy. He had felt trou- 
bled by this, night and day, until he prepared to accomplish 
his design. For a while he had wavered, on account of 
his wife and child, but a voice again urged him, saying, 
“ What thou doest do well; go forward and complete the 
work.” He then left his wife, went to York, and set fire to 
the cathedral. Several medical men, conversant with the 
treatment of lunatics, who had examined Martin subsequent 
to the fire, were of opinion that he was a monomaniac on this 
subject of dreams and the clergy, and that he had probably 
committed the act under the influence of that delusion. This 
prisoner also was acquitted on the ground of insanity. 
Offord’s case, the next which I shall mention, has been 
alluded to as having been tried before Lord Lyndhurst, then 
one of the barons of the Exchequer. This occurred in 1831. 
(5 C. and P. 168.) The prisoner was indicted for the mur- 
der of a man by the name of Chisnal, whom he shot in the 
streets of Hadleigh, without motive or provocation, so far as 
appeared. 70 
TRIAL OF ABNER ROGERS, JR. 
The defence being insanity, the prisoner’s counsel showed 
that he had labored under the idea that he was the victim of 
persecution and abuse, and that persons were constantly 
issuing warrants against him to apprehend him. Under this 
delusion, he would stop strangers in the street, and abuse 
them for their ill treatment towards him. At the time of his 
arrest, there was found in his pocket a list of names, headed, 
“ list of conspirators against my life and the deceased’s 
name, Chisnal, was found among them. Another paper was 
also found upon him with the inscription, “ this is the begin- 
ning of the attempt upon my life.” The medical witnesses 
who were called in the case, gave their opinion that he was 
a monomaniac, and the jury acquitted him. 
Oxford’s case, (9 C. and P. 525,) may also be alluded to 
as furnishing, in its facts, some parallel to the defendent’s, 
though to my view, it is in all its features, a much less deci- 
ded one of insanity than his. Oxford was tried for shooting 
at Queen Victoria, in 1839. He was a boy, or young man 
of eighteen or twenty years of age, and as may be remem- 
bered by some of the jury, attempted to shoot the queen, as 
she was riding out one day with Prince Albert. He fired 
two shots at the royal carriage, neither of which, fortunately 
took effect. Like Hadfield, he was also tried for high treason, 
in thus making an attempt on the life of the sovereign. It 
appeared from the evidence, upon the trial, that he always 
had been a person of singular habits, indulging at times in 
fits of immoderate laughter, without any assignable cause, 
and at others, being guilty of acts of malicious mischief, en- 
tirely gratuitous and unprovoked. He was sometimes taci- 
turn, and at others, absent-minded. On one occasion, he 
frightened a lady, by jumping up behind her coach, and per- 
sisting in riding all the way to her house, so that his mother 
was obliged next day, to go and make an apology, to save 
him from a criminal complaint. At another, being instructed TRIAL OF ABNER ROGERS, JR. 
71 
by his employer to bottle some porter, he went through a 
great part of the operation, by pouring the porter into the 
hollow bottoms of the bottles, instead of the necks, so as to 
waste nearly all the liquor, though seemingly unconscious of 
what he was about. Perhaps the strongest evidence of his 
mental unsoundness, as bearing upon his attempt upon the 
queen’s life, was afforded by some papers found in his pos- 
session, purporting to set out an organized and armed con- 
spiracy against the government. In these papers, he seemed 
to have imagined himself at the head of a large combination, 
extending over the country, and under the title of Young 
England, to be in correspondence with its principal leaders, 
and directing their movements. That the conspiracy was 
imaginary, was evident. The medical witnesses were all of 
opinion, that the facts showed monomania, and notwithstand- 
ing the able, though highly liberal and humane prosecution 
on the part of the crown, he was acquitted by the jury. 
I will cite one other English case of recent occurrence, 
which has been already mentioned, but which has so impor- 
tant a bearing upon the present, that it cannot well be over- 
looked. I refer to McNaughton1 s trial, for shooting Mr. 
Drummond, the private secretary of Sir Robert Peel, in 
March last. (I gather the particulars mainly from the report 
of the London Times, March 4th and 6th, 1843.) 
McNaughton was an entire stranger to Mr. Drummond, 
never having seen him, probably, more than three or four times 
in his life, and then only, in the street, as he passed back and 
forth to the public offices. Undoubtedly he mistook him for 
Sir Robert Peel, which gave rise to the fatal catastrophe. 
For several days, he had been noticed loitering about the 
street which Sir Robert usually took, in going to, or from the 
treasury, and having, as it is supposed, ascertained to his sat- 
isfaction, which the minister was, he took his opportunity 
when Mr. Drummond was passing him, to shoot him with a TRIAL OF ABNER ROGERS, JR. 
pistol. This was in open day, and in the crowded street. 
The ball took immediate effect and caused Mr. Drummond’s 
death. McNaughton, however, was only prevented from 
firing a second pistol which he had with him, by the inter- 
ference of the by-standers. 
Being immediately arrested, he was only heard to say, “ he 
or she shall trouble my peace no longer.” Subsequently he 
expressed some surprise at hearing that it was not Mr. Peel 
whom he had killed. Being thought to be in some degree 
disordered in his mind, he was visited by several medical men 
in prison, before trial, and the particulars of his state of 
mind as they appeared to them, and as made known by other 
testimony relating to his early history, I will now briefly 
narrate. 
It seemed that he was a Scotchman, belonging to Glasgow, 
and had followed the trade of a wood-turner. For the last 
year or more he had been residing in London. His habits 
were those of an industrious and thriving mechanic, and 
he was shown to have a great taste for study, and to have 
even gone so far in his thirst for information, as to have attend- 
ed a course of medical lectures. For several months back, 
and even for two or three years prior to the fatal deed, how- 
ever, he had been noticed to be laboring under a kind of mel- 
ancholy, or fancied apprehension of danger, amounting almost 
to insanity. He believed that he was surrounded by enemies 
or persecutors, who made it their object to disturb his peace. 
Sometimes it was the Catholics or Jesuits, and sometimes the 
Tories, who were thus leagued against him. He told his 
father, and friends, of these troubles, and sought their inter- 
ference to protect him. For the time, perhaps, they could 
succeed in quieting him; but ultimately his imaginations 
would become more troublesome than before. He finally 
became so thoroughly convinced of the reality of the evils 
which he described, that he applied to several magistrates for TRIAL OF ABNER ROGERS, JR. 
73 
warrants against certain persons whom he accused, but who 
were really entirely innocent of any such charge. Accord- 
ing to his own story, he was tormented with these delusions 
for several months previous to the assassination, and he could 
not find rest from them, night or day. He took a voyage, he 
said, to France, to get rid of his persecutors ; but no sooner 
had he landed, than he saw one of his spies peeping out 
from behind the sentry box. One of the witnesses, a mem- 
ber of parliament, to whom he had applied for protection 
against his enemies, had even written him, that he thought 
his mind was disordered. But it did not appear that the 
prisoner, or his friends for him, had ever sought medical ad- 
vice, as for one positively diseased in mind. What particular 
connexion his delusion had with the prime minister, w7as not 
shown, further than that he told Dr. Munroe, one of the phy- 
sicians who visited him, that the man he shot, was one of the 
crew leagued against him; and that when he fired, all the 
sufferings he had felt for months and years, came up into his 
mind, and he thought he should obtain peace by destroying 
him. 
Many medical witnesses were summoned on behalf of the 
prisoner, and they all gave their opinion — some of them in the 
strongest terms — that he was a monomaniac. The presiding 
judge, C. J. Tindal, having inquired of the prosecuting officer 
if he had any rebutting testimony to counteract this, and 
being answered that there was none, suggested the propriety 
of dropping the prosecution, which wras immediately acceded 
to by the solicitor-general. Accordingly, after a brief charge 
from the court, that they must acquit the prisoner, if they 
believed him incapable of distinguishing right from wrong, 
the jury at once found a verdict of acquittal. 
This case is particularly noticeable for the existence of the 
idea on the part of the insane man, of a conspiracy formed 74 
TRIAL OF ABNER ROGERS, JR. 
against him, and of his delusion taking the shape of a general 
apprehension of persecution and abuse. 
Gardiner's case, which is one of very recent occurrence in 
our own country, may be instanced as another of the same 
kind. A young man by the name of Gardiner, the jury may 
recollect, was tried in Baltimore, for stabbing Mr. Wickliffe, 
the Post-master General, last August. The two were going 
down the Potomac, or Chesapeake Bay, in a steamboat to- 
gether, and young Gardiner, without any warning or provo- 
cation, drew a dagger and stabbed Mr. Wickliffe in the breast. 
Fortunately the wound was only slight. There being a sus- 
picion that Gardiner’s mind wTas affected at the time of the 
act, a commission of inquiry was held at Baltimore on his 
conduct, and they pronounced him insane. It seemed that 
he had been a person of very studious habits, and for some 
time previous to his outbreak, had exhibited symptoms of 
alienation of mind. His mother had even taken advice on her 
son’s case, but the physician had not treated it as one of posi- 
tive insanity. The prisoner himself said, that at the time of 
committing the act he believed that Governor Wickliffe was 
in a conspiracy with others on board, to throw him overboard, 
and that he acted in self-defence. He could give no reason 
for his imagination, but only supposed that he was to be the 
victim of a foul conspiracy. (The above particulars, like those 
of McNaughton’s case, I can only quote from newspaper au- 
thority. I find them in the National Intelligencer, of August 
5th, 1843.) 
I will venture to trouble you, gentlemen, with one other 
American case in this connexion, which I consider highly 
analogous to the present. It is found in Dr. Woodward’s 
Tenth Annual Report, before quoted, page 88. Only the initial 
D. is there given ; but, as I am informed by the Doctor him- 
self, it relates to a man by the name of Davis. Davis wras TRIAL OF ABNER ROGERS, JR. 
75 
complained of to the grand jury in a neighboring county, for 
the murder of a Mr. Edwards. He had been addicted to 
intemperance, and at the time of the homicide was nearly in 
a state of delirium tremens. He said he heard General 
Washington call out to him, as he rode in a chariot through 
the air, to take the life of Edwards without delay. Accord- 
ingly, he hastened with all speed in pursuit of him, and find- 
ing him, struck him a blow with an axe, which immediately 
caused his death. The paroxysm of insanity, if it were that, 
(and Dr. Woodward does not hesitate so to style it,) passed 
off before the trial. Yet the grand jury did not see fit to find 
a bill, but acquitted him on the score of insanity. 
The cases to which I have drawn your attention as above, 
among other features of insanity, contain two or three points 
which we suppose will be strongly brought out by the pris- 
oner’s. Among these are the hearing of false voices, the 
idea of the existence of conspiracies or persecution, and the 
possible duration of a paroxysm of insanity. Allow me to 
quote a few more authorities, medical and legal, to each of 
these points. 
Hallucinations, in the point of hearing false voices, like that in 
the case of Davis, just alluded to, are a well established symptom 
in many forms of insanity, according to the medical authori- 
ties. Their effect upon the conduct of the insane individual, 
who supposes himself to hear them, is undoubtedly as strong 
as real voices would be to a sane man. Thus Esquirol, (2 
Maladies Mmtales, page 794,) after remarking that these hal- 
lucinations impel monomaniacs to murder, quotes the case of 
a Prussian farmer, who thought he heard an angel ordering 
him, in God’s name, to sacrifice his son on a funeral pile. 
The father directed his son to help him bring wood to a desig- 
nated place, and make the pile. The son obeyed, and the 
father stretched him on the funeral pile and offered him as a 
victim. It was his only son. 76 
TRIAL OF ABNER ROGERS, JR. 
The same writer remarks, (vol. 1, Maladies Mentales, 
199,) that out of an hundred insane persons, four-and-twenty, 
at least, have hallucinations. 
So Marc, another great French name on the subject of 
insanity, says, (De la Folie, 1, page 188,) “ the sense of hear- 
ing is the subject of hallucinations, in as great a proportion 
as two-thirds of all that occur.” 
On the point of the belief of the insane in imaginary con- 
spiracies and persecutions, Winslow, a recent English writer, 
says in his “ Plea of Insanity in Criminal Cases,” page 33, — 
“ In some of these cases of homicidal insanity, the unfortunate 
patient is drawn to the commission of the crime, under the 
notion that conspiracies are formed against him, and that it is 
necessary to take away the life of some human being, in order 
to preserve his own. This kind of illusion is a common fea- 
ture in cases of insanity.” 
I have at hand, also, a celebrated French case, illustrating 
this point, which, at the expense of being tedious, I will ven- 
ture to recite. It is that of a young man named Sclafer, tried 
at Bordeaux, in September, 1838, for the murder of a girl 
named Maria Rousseau. The case is found in 2 Marc, (De 
la Folie,) page 35. 
The prisoner was a young man of liberal education, about 
one-and-twenty years of age, who, just previous to the homi- 
cide, had become devoted to religious thoughts and acts. He 
had long been haunted with the idea that people were insult- 
ing him. He could not go out without imagining himself the 
subject of ridicule. He thought that he was called by oppro- 
brious names, and pointed out as a mean or worthless fellow. 
It did not appear that he had any ill-will at all against the 
girl, nor, (as was surmised by the prosecution,) any unlawful 
passion towards her. One night, when Maria went to carry 
the light up into his study, another domestic was alarmed by 
hearing her scream and fall. She ran up, and found her on TRIAL OF ABNER ROGERS, JR. 
77 
the stairs weltering in her blood, and Sclafer striding up and 
down the chamber, with a bloody sabre in his hands. She 
was frightened and ran out. Sclafer being immediately ar- 
rested, confessed the deed, but denied that he had committed 
any crime. He said that he had done the act out of revenge 
for being called “ rake,” “ libertine,” and other hard names 
by the girl. Soon after his arrest he tried to starve himself, 
and went without food ten or twelve days. Five or six days 
before his trial, he made an unsuccessful attempt to escape. 
When about to be brought up to trial, he stripped himself 
naked, and refused to be arraigned. They dragged him into 
court, as it were, and there, at first, he broke out in the most 
violent abuse of the court, jury, audience, and his own law- 
yer. After the trial commenced, he constantly interrupted 
the witnesses, to contradict or insult them. Especially he 
denied the imputation of being insane. His aunts, with whom 
he had lived, proved that they had applied to a physician for 
advice, believing his mind to be affected. The physician, 
however, had not judged it best to commit him to an insane- 
hospital, though he thought there was a probability of his 
eventually becoming insane. A journey from Bordeaux to 
Paris was testified to, in which he was constantly complaining 
of the insults of the people whom they passed, and of his 
fellow-passengers ; that the latter threw out pieces of paper, 
with his name written on them, instigating the by-passers to 
call out after him. A number of times he went so far as to 
demand his baggage, and to leave the coach. Nobody in 
reality had offered him the least insult. His conduct in this 
particular was so outrageous after reaching Paris, that his 
brother, a medical student, set out with him immediately to 
return. When this portion of the testimony was delivered, 
the prisoner interrupted it, declaring that it was true he 
thought himself insulted, for he heard voices calling him by 
name, and using this and that epithet; that he asked the 78 
TRIAL OF ABNER ROGERS, JR. 
conductor if he didn’t pay the postilion twenty or thirty 
francs to insult him ; and if a man in the stage did n’t break 
his sword-blade over his knee. These statements, the con- 
ductor testified, had no truth in them, whatever. Other evi- 
dence showed that the prisoner had hallucinations of the sense 
of hearing. To the last, he disowned and repelled the de- 
fence of insanity. He said his lawyer was a traitor to him, 
and thanked the advocate-general for calling him sane. 
His own story was, that he felt badly the day of the homi- 
cide, and particularly at the time Maria came into his study. 
She did n’t speak to him at first, but at the moment when she 
was shutting the shutters, he heard her distinctly call him “ a 
libertine,” “a rake,” and “a bad fellow.” These words en- 
raged him ; he lost his self-control, seized the sabre which he 
had never touched before, and struck her without cessation, 
though not with a perfect consciousness of what he was doing. 
He said he felt himself pushed by a will foreign to his own, 
and which he could not resist. 
During the trial, one of the medical witnesses instanced the 
case of a monomaniac who had fired at a person, believing 
that he had insulted him. Sclafer broke out, “ he was not a 
monomaniac, but an assassin. He played the monomaniac, 
no doubt, to defend himself; and cheated the doctors.” The 
medical witnesses in attendance, gave their opinion that the 
prisoner was insane ; and the result of this singular trial was 
an acquittal of the prisoner on that ground. Marc does not 
hesitate to consider it a case of homicidal insanity, springing 
from the hallucination of hearing a false voice. 
Some allusion has been made by the state attorney to the 
shortness of the attack of delirium, which Rogers suffered; 
and witnesses have been called to show that a few weeks after 
the homicide, after he was transferred from the prison to the 
jail, he appeared as rational as any other person. To show 
you that the briefness of its duration does not negative the TRIAL OF ABNER ROGERS, JR. 
79 
idea of the affection amounting to positive insanity, and that 
such attacks are often accompanied with partial or total un- 
consciousness of what is done in them, allow me again to 
have recourse to medical and legal authorities. 
According to Esquirol, (Maladies Mentales 2, page 30,) 
“ the course of monomania is abrupt and rapid : its termina- 
tion often unexpected ; it is to be judged of like other forms 
of mental alienation by crises more or less sensible ; but it is 
not rare, that it terminates all of a sudden, without a cause, 
without a perceptible crisis, or in consequence of a vivid 
moral impression.” 
So, Marc, (He la Fol. 2, page 509,) says, *“ in sudden and 
transitory insanity, which ought to be considered as an acute 
insanity, there is almost always a notable acceleration of the 
pulse, a true febrile state. Almost always, too, the extrava- 
gance and atrocity of actions committed during the parox- 
ysms of transitory insanity, particularly when those parox- 
ysms are brief, result from hallucinations or illusions. It 
must not be forgotten, that the paroxysm once passed, the 
insane hardly ever preserve a recollection of it, and have 
but a confused remembrance of it. It is with them as if 
in dreams.” 
So, Winslow, in his Plea of Insanity, page 69, remarks, 
“ in some instances of homicidal insanity, the patient, after 
recovery, has no recollection of any of the circumstances 
which transpired during the paroxysm. A man under Dr. 
Haslam’s care, during a fit of furious insanity, had destroyed 
two children and a woman. He was confined, and died in a 
mad-house. On several occasions Dr. Haslam endeavored to 
draw from him some account of the motives, which induced 
him to destroy the children and the woman, but he uniformly 
and steadily persisted that he had no recollection whatever of 
such an occurrence. He said he understood he had done 
something which was very wicked, and for which he was con- 80 
TRIAL OF ABNER ROGERS, JR. 
fined : but he thanked God that he had no more memory of 
what had passed, than if he had committed it in his sleep. 
Another case is related by the same authority, of a lady, who 
during an attack of insanity, attempted to commit suicide. 
After the lapse of three weeks, as she was sitting in her usual 
manner, she uttered a shriek, appeared for a few moments in 
a state of alarm and confusion, and suddenly recovered. Dr. 
Haslam observes, 4 of her repeated attempts at suicide she 
had not the slightest recollection.’ ” 
So, Dr. Taylor, a late English writer on medical jurispru- 
dence, remarks, “ it is proper that a medical witness should 
remember, in examining an accused party, who is alleged to 
have committed a crime while laboring under insanity, that 
the plea may be good, and yet the individual be sane when 
examined. This was observed in the case of a lunatic who 
killed his mother, in February, 1843. There was no doubt 
that he was insane at the time of the act; but two days after- 
wards he was found to be of perfectly sound mind. This 
sudden restoration to reason, is sometimes met with in cases 
of homicidal mania.” (Taylor’s Med. Jui'is. page 651.) 
A striking case of this kind is mentioned by Marc, (2 De 
la Fol. page 481,) in the instance of a servant girl named 
Maria Lorentzen, who attempted to strangle her mistress, in 
a state of somnabulism or monomania, in Copenhagen, in the 
year 1821. The girl had been sitting up with her mistress, 
and having conceived the idea of suffocating her, (from what 
motive she could never explain,) was only prevented from 
completing the deed, which she had actually begun, by a per- 
son’s ringing at the door. The mistress, thinking that the girl 
was in a state of somnambulism, while thus endeavoring to 
smother her, told her to go to the door, and she mechanically 
obeyed. Oppressed by the idea then, that she had killed 
her mistress, or done her some fatal injury, she rushed out of 
the house with an intention of destroying herself. But think- TRIAL OF ABNER ROGERS, JR. 
81 
ing that she was watched, she went and delivered herself up 
to justice as having committed the crime of murder. The 
real facts were made known, and the girl having under- 
gone a judicial examination was acquitted from any criminal 
charge, as being temporarily deranged. She was placed un- 
der medical treatment, and in a very few weeks recovered her 
reason. 
So Dr. Wyman, the late superintendent of the McLean 
Asylum, mentioned a case on Prescott’s trial, in which he 
was a witness, where he had known a young gentleman, who 
had come to Boston to make a visit, be suddenly seized with 
a paroxysm of derangement, and under its influence rush into 
a shop, and attempt to stab the woman who kept it. Being 
secured, and afterwards brought to the asylum, he had re- 
mained there but a week, when his father, who came for him, 
found him perfectly recovered. He had no recurrence of the 
malady afterwards. (Prescott’s trial, before referred to, 
page 71.) 
I will mention one other case, on Dr. Brigham’s authority, 
from the report of the Hartford Retreat, already referred to. 
(Eighteenth Report, page 18.) “ It is that of a lady, the 
mother of three children, one of whom she suddenly killed 
by repeated wounds with a hatchet. She had not been con- 
sidered insane previously, though she had for some time been 
somewhat unwell, and low-spirited. Soon after the act, she 
endeavored to kill herself, and was brought to the Retreat a 
decided and wretched maniac. For several weeks she re- 
mained without much change, rather stupid, as if having no 
recollection of the past. After this, her bodily health began 
to improve, when suddenly the memory of what she had done 
seemed to return, and the agony she was then in for a few 
hours, until her feelings were overcome by opium, was inde- 
scribable and most painful to witness. She however recovered, 
and has now been well for nearly a year. She has often 82 
TRIAL OF ABNER ROGERS, JR. 
assured me since, that she could recollect no motive what- 
ever, that induced her to commit the act, and does not believe 
that she thought of it until she saw the hatchet. Had this 
amiable lady and affectionate mother killed a neighbor or 
domestic, I fear there would have been difficulty in convinc- 
ing a jury that the act was the consequence of insanity.” 
I have one other instance on my notes, of a similar char- 
acter, (mentioned by Dr. Woodward, in his Tenth Report, 
page 93,) which I will forbear troubling you with at present, 
but which I may take occasion to refer the Doctor to, when 
he takes the stand as a witness. 
But perhaps I am detaining you too long, gentlemen of the 
jury, from the facts and symptoms in the case now before yvou 
for judgment. Long since, you may have inquired in your 
own minds, c what are the indications of insanity in Rogers’s 
instance which you expect to prove, and from which we may 
judge whether it is analogous to those which you have laid 
before us and asserted were similar ? ’ 
I proceed then to state what these indications are ; — to fur- 
nish a brief outline of his condition and state of mind, at, or 
about the time of the homicide, from which you will infer, 
whether a different version of this transaction is not yet to 
appear, and whether I was not correct in saying that little or 
none of the real truth, (if it shall prove such,) had yet been 
developed. 
Thus far, then, the government has shown you no motive or 
inducement whatever, that could have led the defendant to 
commit the fatal deed of the 15th of June ; unless the very 
doubtful statement of the convict Tulley raises a suspicion of 
general ill-will, on account of over-punishment some five 
months before, or unless some long-harbored resentment is 
made out of the phrases said to have been heard at the time 
of the act, “ I told you I would” and again, after the homi- 
cide, “ I have fixed the warden, and I’ll have a rope round TRIAL OF ABNER ROGERS, JR. 
83 
my neck before night.” Other than these statements, which 
we hope to demonstrate to you, are incorrect, or founded in 
mistake, or are really unimportant, nothing whatever has been 
shown as an adequate excitement to this monstrous and ap- 
palling deed. We shall now expect to show you, that no 
motive of revenge, anger, or ill-will, in all probability, existed 
in Rogers’s mind in regard to Mr. Lincoln. On the con- 
trary, that he had expressed satisfaction with the part which 
he took in his additional sentence; that he had even said he 
had done better for him before the court than he expected ; 
and that having but a short time to stay at the time of the 
homicide, he had expressed his determination to get along as 
peaceably as he could. We shall further show you that the 
defendant’s character while in prison, though not of the most 
exemplary kind, was yet better than the average of the con- 
victs ; and that so far as his disposition could be manifested 
by the nature of the punishments he incurred, it was anything 
but that of a refractory, violent, or bad-tempered man. 
But in regard to his state of health, bodily and mental, it 
has been already shown you by the prison-physician, that if 
not absolutely an invalid for the last six months previous to 
his outbreak, he had made repeated applications to the hospi- 
tal, particularly within the Iasi fortnight, for medical treatment, 
and, had not received it. That his last application on the 
morning of the homicide, was on account of, a pain in his 
head, and because, as he said, he could not control his mind. 
Perhaps we shall be able to further show you some indica- 
tions that the disease which finally overpowered his mind, 
began to take hold of him a month or more before the final 
crisis ; but we shall not rely much upon the development of 
its symptoms till some three days previous to the homicide. 
Monday night, the 12th, may perhaps be selected as the 
opening act of the unhappy tragedy which was to ensue. 
And if the case be one of pretence or counterfeiting, as has 84 
TRIAL OF ABNER ROGERS, JR. 
been more than intimated by the state’s attorney, I beg your 
attention to the time and place, when the prisoner took 
his first step towards carrying out his complicated contrivance. 
We shall show you that the watchman on duty that night, 
Mr. Gardiner, was roused at about two o’clock of the morning- 
watch, by a loud and long-continued scream or cry of distress ; 
— that having lit his lantern, and made endeavor to trace it, 
(in which he found some difficulty from the common opening 
of the cells into the corridor,) he at last found it to proceed 
from that occupied by Rogers ; — that going to it and putting 
his light up to the grated door, he found Rogers standing up 
before it, shivering, with his hands crossed upon his breast, and 
having the appearance of the greatest alarm and distress. 
To his inquiry, “ what is the matter ? ” Rogers begins that tale of 
apprehension and despair, which, we shall show you, forms the 
burden of his delusion all through his season of distempered 
disorder. 
He tells Mr. Gardiner that he is going to die; that he shall 
never live to get out of the prison ; that he has heard the 
voices of his fellow-convicts, Cole and Robinson, talking 
about his cell, and saying, that the warden was going to shut 
him up and he should never go out alive. To Mr. Gardiner’s 
direction not to make the noise any more, he replies that he 
cannot help it — that he certainly has heard the voices — that 
they said the warden was going to shut him up in solitary, 
and he should never go out till he went out feet first — that he 
had been a very bad man, and was not fit to die — that he 
should never have come to this if he had taken his father’s 
advice. During all this, he was in tears or giving signs of 
the greatest distress. Mr. Gardiner succeeded in quieting 
him, and he heard no more of the noise till towards morning; 
and then, not so loud that he felt obliged to notice it. 
Next morning, or during the day, Mr. Gardiner casually 
mentioned the occurrence of the noise, in the hearing of Mr. TRIAL OF ABNER ROGERS, JR. 
85 
Payne, the deputy-warden, and he thought proper to take 
notice of it as a violation of discipline, and accordingly had 
Rogers reported and left out. 
This punishment, and the relative position of the prison 
buildings, perhaps demand some explanation here. 
The prison-yard, as the jury may be aware, incloses two 
buildings ; the new prison, (so called,) containing the night- 
cells, in which the convicts ordinarily sleep, and the old 
prison, containing the warden’s and guard-room, and the 
hospital, and which is now seldom used for the purpose of 
confinement, either day or night. 
The practice of reporting and leaving-out, amounts to this ; 
that at night when the convicts go into the new prison for 
sleep and confinement, and the officers go in with them to 
oversee them, any officer who has any complaint to make 
against a convict, notifies the warden of it, and he directs the 
delinquent party as he comes to the foot of the stairs leading 
to the prison galleries, to stop while the rest go up, and have 
his case examined. This is called “ leaving-out.” If the con- 
vict is judged worthy of the punishment of being deprived of 
his bed for the night, he is not allowed to occupy his own 
cell, but is sent away to one of the cells on the lower floor, 
where he must either pass the night on the stone-floor, or 
upon a board covered with a blanket. This is being put into 
“ solitary,” as it is briefly called. 
To resume, then, Rogers was left out on Tuesday night, 
and ordered into solitary, as a punishment for making the 
disturbance on Monday night. But before the evening of 
Tuesday, in fact some time in the course of Tuesday morning, 
Mr. Gardiner called Rogers to him to ask him again the occa- 
sion of his outcry and distress the night before. 
He repeats the same story, and insists that he heard Cole 
and Robinson’s voices, as he said he had, the night before. 
So convinced was Gardiner, that something really was the 86 
TRIAL OF ABNER ROGERS, JR. 
matter with the man, that he interfered to tell Mr. Lincoln, 
when he found that he was left out for punishment, that he 
did not deserve it; and that he was sure he had waked up 
out of a frightful dream, or was not right in his mind. Mr. 
Gardiner, I believe, will state that he made this representation 
to the warden more than once during the continuance of 
Rogers’s complaint, whatever it was. 
During the day of Tuesday, Rogers’s conduct was carefully 
noticed by the officer having charge of his shop, Mr. Sargent, 
and full particulars of his appearance and actions then, will 
be given you by that witness, and also one other officer who 
had the more immediate oversight of his work, as well as by 
some of the convicts who worked in the same room. Their 
evidence, I think, will show, that repeatedly he applied to 
the officer for protection, or mentioned to them his story of 
anxiety and distress — that he should never live to go out — 
that the warden and other officers, were going to shut him up 
in the old prison in solitary, and that he should never live 
his time out, if they did — that they had employed the con- 
victs, Sam Robinson, Jo Hutchinson, and Cole, to play 
the popo, or checkerberry game on him, which would turn his 
head in twenty-four hours — that he had got to die, and his 
time was short. 
Tuesday night, the watchman’s (Patterson’s,) and a con- 
vict’s testimony, (Savary, who was the privileged runner or 
sub-overseer of the shoe-shop,) will show you that the pris- 
oner began again his cries of lamentation and distress. That 
threat of punishment, neither, or assurance of the groundlessness 
of his fears would pacify him ; and that he was more than ever 
under the influence of his delusions and imaginary fears. 
Wednesday morning he was showered, as the government- 
witness, Mr. Fogg, has- already testified. We think his 
actions and appearance at the time, as they were seen by 
Mr. Sargent and Savary, had something more significant in TRIAL OF ABNER ROGERS, JR. 
87 
them, than Mr. Fogg knew of. To one, or both of them, 
Rogers insisted that he was as regular as ever, and yet his 
dress and countenance bespoke anything but a sane and self- 
controlling man. During Wednesday, the same witnesses, 
as before alluded to, who were present all the time in the 
shoe-shop, will show, as we believe, an aggravation or height- 
ening of the defendant’s disorder. Wednesday night, pro- 
bably through the representation of Mr. Sargent, or some of 
the other officers, Rogers was allowed to occupy his own cell. 
This night also, he was not able to check his cries of alarm 
and suffering ; and he was reported for punishment again, 
which took place Thursday noon ; being this time by shower- 
ing. Thursday morning, as Dr. Walker’s evidence has 
already shown you, he applied for admission into the hospital, 
as having a trouble in his head, and was refused. During 
the day, the evidence will probably establish that he was in a 
constant state of agitation and distress; frequently in tears ; 
sometimes seen with his hands clasped, and in the attitude of 
prayer ; overheard by some near him to talk to himself, as if 
in distress, and then blaspheming; unable to employ himself 
at anything steadily, and frequently going up to the officer 
and beseeching his interference to save him from the imagi- 
nary punishment of being shut up and put to death. 
We shall not lay much stress upon the point, that the 
showering, or the other punishments aggravated and increased 
his disease ; though perhaps we may ask the medical witnesses 
some questions upon the general effects of punishment, in 
such a case, supposing the disease were real. 
But after the showering on Thursday afternoon, we think 
it will appear, that the prisoner was wrought up to the highest 
pitch of distress and despair. Shortly before the fatal act, 
Mr. Sargent and Mr. Crowninshield, (a contractor in the 
prison for Rogers’s work,) will give you the particulars of his 
falling down upon his knees to them, and begging them with 88 
TRIAL OF ABNER ROGERS, JR. 
tears in his eyes, to save him from punishment — that they 
endeavored to assure him that no punishment was hanging 
over him, and sent him back to his work — that the prisoner’s 
appearance made such an impression upon the latter, that he 
immediately went in quest of the warden to have him taken 
care of. Shortly after this, and immediately before the homi- 
cide, Mr. Braman, Rogers’s immediate overseer, will tell you 
that he was in no degree quieted by the promises or represen- 
tations of Mr. Crowninshield and Mr. Gardiner ; but that he 
kept beseeching him to intercede with the warden, in his be- 
half ; that he used the expression, among other things, “ go 
and find the warden, and let him give me ten stripes, and 
have it overthat he felt convinced at this time, that he 
should not live more than twenty-four hours, if he suffered 
the punishment which he was about to. 
Such, we expect to show you, was the prisoner’s state of 
mind and appearance, a few minutes before Mr. Lincoln en- 
tered the shop. Whether, seeing him, and with a stranger 
in his company, he thought his hour was come, and he must 
save himself, if ever ; or whether a blind impulse, unaccompa- 
nied by anything like a process of reasoning, impelled him at 
that moment, to commit a slaughter of one who had been con- 
stantly mixed up in his thoughts, with the idea of evil and im- 
pending danger, we shall not undertake to explain. It belongs 
only to Omniscience, we believe, to penetrate the chaotic dark- 
ness of the disordered soul at such a moment, and throw light 
upon its hidden workings. The most security we can give 
you for his state of mind at that moment — and I admit it 
is the decisive one in this whole case — will be the statement 
of probabilities made by those whose long experience, and 
intimacy with insanity, will enable them to form some opinion 
upon the point, whether the light of reason was temporarily 
quenched, and distraction for the time being, reigned para- 
mount in the soul. If we show you, that a few moments TRIAL OF ABNER ROGERS, JR. 
89 
before, his state of mind was such, that motive, reason, and 
the will were likely to succumb to the first impulse from with- 
out, the presumption of law, as well as the dictates of science 
and good sense, will undoubtedly authorize the conclusion that 
the same state of mind existed at the precise moment of the 
act. And it is in this way, that we shall be obliged to leave 
our case, so far as anterior proof is concerned. But I have 
not yet exhausted my statement of the evidence of the pris- 
oner’s insanity, prior to the act. Some allusion has been 
made already, to Mr. Gardiner, and Mr. Crowninshield’s 
acting on the belief, at the time, that all was not right with 
Rogers’s mind. These were not the only witnesses, as we 
shall show you, who were influenced in the same way, before 
there was any occasion for the prisoner's pretending a part 
to conceal the commission of a crime. We think, it will 
appear to you, that, in all, there were no less than six or eight 
distinct intimations made to the warden, and deputy-warden, 
at different times, before the act was committed, that he was 
crazy. To these intimations, as we shall show you, the war- 
den invariably turned a deaf ear, blinded by his preconceived 
opinions about the man, or fatally misguided, as you will per- 
haps infer, by his prison-theory, “ that it would not do to ad- 
mit the existence of insanity in such a case as Rogers's, 
or half of the men in the prison would be insane.” We 
shall further show, on this very point of mistake, if the court 
will permit the evidence, that Mr. Lincoln likened the pris- 
oner’s conduct, to another convict’s, who, he supposed, was 
feigning insanity, but who afterwards proved, as events 
showed, to have been actually insane. 
Under the same head of simulation, again, we shall ask 
your attention, to the evidence — so far as it makes out the 
fact — of the prisoner’s frequently asserting that he was not 
disordered, or out of his head; but was as well as any body, 
and felt better for being showered, or getting some sleep, &c. 90 
TRIAL OF ABNER ROGERS, JR. 
And under the same head, we urge your attention to his appa- 
rent readiness, at any time, to be convinced that his imagina- 
tions were all delusive; and to his desire that it should be so, 
if possible. 
Thus far, then, up to the time of the commission of the 
act, the proof would be such, we think, as that on the point of 
simulation, or actual affection, no jury would hesitate to con- 
clude that whatever was the nature of the defendant’s disor- 
der, it was real and not pretended. Something, certainly, 
ailed him ; what that something was, subsequent 
we hope, will demonstrate. 
A little of the defendant’s demeanor, after the homicide, 
(indeed, including his conversations with Mr. Fogg, a con- 
siderable,) has been testified to, already. But much more, 
and of the most decisive character, is yet to come. 
Viewed in the light of a murderer, nay, according to the 
wishes of some of the officers, consigned already to the 
tender mercies of lynch-law, the unhappy defendant was 
put out of sight, as hardly entitled longer to the name of 
human being. Fortunately, the hand of benevolence, guided 
thither, by Divine Providence, on another errand, found him 
in his position of desolation and extreme peril. 
A friend of the late warden’s, the Rev. Louis Dwight, 
having occasion to visit the prison, to inquire after the con- 
dition of the deceased’s wife and family, accidentally thought 
of seeing the prisoner. Being admitted to the cell in which 
he was confined, his practised eye in the diagnosis of insanity, 
was immediately struck with the probable symptoms of men- 
tal aberration. A startling doubt at once took possession of 
his soul, of the man’s guilt, and he hastened away in quest 
of more experienced, and more skilful judgment than his 
own. The close proximity of the McLean Hospital, (its 
situation, you know, in the town of Somerville, is but a short 
distance from the prison,) and his familiarity with the super- TRIAL OF ABNER ROGERS, JR. 
91 
intendent, at once prompted him towards Dr. Bell. He finds 
him somewhat reluctant to make a visit of mere curiosity, as 
he supposed it to be — (for, Mr. Dwight, if I am not mistaken, 
carefully concealed from him, his opinion of the man’s ap- 
pearance,) — and it was only after suggesting to him, that it 
seemed a call of public duty, that he consented to accompany 
him. 
Behold now a sagacious and profound observer of the dis- 
ease in all its shapes, about to institute a deliberate and care- 
ful examination of the case ! —One who goes with the belief, 
as he will probably tell you, that he was to see a real mur- 
derer, and no subject for the plea of exculpation from insanity. 
What chance for an ignorant and uneducated pretender to 
deceive him ? You will judge whether the prisoner had any 
reason to anticipate his visit, or prepared himself to play off 
a part before him. You will judge, further, whether his con- 
duct and conversation, in the presence of the Doctor, were 
involuntary and real, or assumed and fictitious. But I shall 
not go into the particulars of the Doctor’s methods of exam- 
ination, nor state the data upon which he made up his final 
opinion. He can detail them all much better than I can. It 
is sufficient to say, that that opinion, was not made up, till 
ample opportunities of observation, and repeated visits had 
satisfied him, that he could speak with confidence. And that 
opinion, if he repeats it as given on the former occasion, will 
be decisive, we trust, of the prisoner’s state of mind, at the 
interval of, from two days, to a week and more, after the 
homicide. 
But Dr. Bell will not stand alone, in his statement of the 
facts, and outward symptoms noticeable about the defendant 
at this time. Mr. Dwight — no small authority on the subject 
of insanity, from his extensive practical observation of the 
disease, in lunatic asylums, which have received a joint share 
of his attention, in connexion with prisons — will give you 92 
TRIAL OF ABNER ROGERS, JR. 
the result of his observations, made separately, or in connex- 
ion with his friend. Besides these scientific witnesses, we 
shall have no little or unimportant testimony, to add from 
common observers — the officers of the prison, and the convicts 
who were permitted to see Rogers. All together, we think, 
will establish an undeniable and unimpeachable case of insan- 
ity, subsequent to the homicidal act. Reverting, then, we 
might ask you with great confidence on this part of the testi- 
mony, separately, to believe in the existence of the same 
complaint, a few days before. 
But we shall not stop even here, in making out the proba- 
bilities of a state of irresponsibility at the moment of the 
homicide. 
We shall go into proof of the prisoner’s origin and his early 
physical condition, to show that nothing was more probable 
than that he should ultimately become the subject of insanity, 
if any exciting cause should accidentally affect him. On this 
point we shall probably be able to show you, that he comes 
from a family in which the disease is hereditary. That a great- 
uncle and great-aunt, an aunt, and a brother, have all been 
deranged or idiotic ; that his father’s whole family are a very 
nervous one, and subject to fits ; that Abner himself had vio- 
lent fits till he was upwards of six years old ; that after the 
fits left him, he was always subject to convulsive turns in the 
night-time, and that those about him have known him to be 
affected by them, or some other cause, in a strange and inex- 
plicable manner. 
It is, gentlemen,.you are well aware, a common subject of 
remark, that predisposing causes such as these alluded to, 
have an important bearing upon the question of insanity. 
The medical gentlemen will give you more light upon this 
subject, however, than I am able to. But in passing, permit 
me to quote a single observation from a recent writer, whose 
book has been already referred to. It is Dr. Taylor. He TRIAL OF ABNER ROGERS, JR. 
93 
says, page 629 of his treatise on Medical Jurisprudence, “ in- 
sanity readily supervenes from very slight causes, where 
there is an hereditary taint.” Esquirol has remarked that 
“ this is the most common of all causes to which insanity can 
be referred. Other authorities have asserted that in more than 
one half of all cases of insanity, no other cause can be found 
for the malady.” 
Such, gentlemen, as we hope, will be the groundwork of 
probabilities, in matter of fact, in this case, upon which to 
build an opinion of the prisoner’s responsibility or irresponsi- 
bility for the deed with which he is charged. But we shall 
not leave your self-distrustful or partially-informed judgments 
in this matter, without further and more competent advice, yet. 
We shall call to your aid, (as under the instructions of the 
court we have a right to,) those who will be ready to answer 
the scientific question, whether certain facts being proved to 
be true, a man is, or is not, insane : and whether if insane, 
the scientific probabilities are, that he was unconscious or irre- 
sponsible for his acts. For this purpose we have summoned 
here, as good counsel, we venture to say, as New England, or 
perhaps this country, can afford. Indeed, we do not know 
that the assertion would be eulogistic, to say that the old world 
cannot produce better. They are few in number ; but as 
you are well aware from the fewness of lunatic asylums in 
our state or neighborhood, more cannot conveniently be had. 
But you will “ weigh them,” not “ count them.” 
And since we have heard something from the other side, 
already, and shall probably hear more, by way of disparage- 
ment of such testimony, permit me to ask, how you can satisfy 
yourselves in a case like the present, either as conscientious 
or sensible men, without listening to such instruction, if the 
rules of law will permit you to have it ? If the issue before 
you were, whether the prisoner had a typhus-fever, or some 
other subtle physical disease, instead of a disease of the 94 
TRIAL OF ABNER ROGERS, JR. 
brain, would you be satisfied to dispense with the opinion of 
a physician, if you could obtain it ? How much more, then, 
will you regard such information, in a case of the subtlest, and 
most intricate, and perhaps most varied disorder, that medical 
science has to treat ? — a case where the ordinary practitioner 
is at fault; and where only a combined knowledge of physics 
and metaphysics — a combination of high mental powers with 
general scientific attainment, is at all adequate to constitute 
skill. 
But even the magazine-article, quoted from the British and 
Foreign Medical Review, by the state’s attorney, rightly un- 
derstood, sustains this view of the use of medical testimony, 
rather than the other. The drift of that article, as we,under- 
stand it, over and above a disparagement qf the treatise of 
Mr. Winslow, upon which the gentleman himself has largely 
relied, is, that these questions of insanity should be tried in a 
different way from what they now are : — by something like a 
special commission, as in France, for instance ; which, in real- 
ity, is submitting the' whole matter to medical men. 
But upon this head of the worth and value of medical testi- 
mony, permit me to quote an observation from a work of known 
authority, Paris and Fonblanque’s Medical Jurisprudence. 
They say, pages 315-16, “ the point has frequently given rise to 
discussion, whether the existence of insanity cannot be equally, 
or in some cases, more satisfactorily established, or disproved, 
by witnesses who are not of the medical profession ? By 
« 
persons, for instance, who have had opportunities of observing 
the individual, where the same advantages have not been in 
the power of the practitioner. To this wre may reply, that 
the opinions of the generality of persons on the subject of in- 
sanity are extremely vague, and frequently very erroneous; 
and are commonly the result of those glaring exhibitions, 
thosq caricatures of disease which the stage represents, or 
romances propagate : the ordinary observer can hardly be TRIAL OF ABNER ROGERS, JR. 
95 
convinced of the existence of insanity, without some turbulent 
expression, extravagant gesture, or fantastic decoration ; while 
on the other hand he is too apt to infer a state of insanity from 
those whims and eccentric habits, between which, (and genu- 
ine aberration,\ the medical practitioner from daily commu- 
nication with deranged persons, can alone know how to dis- 
criminate.” 
There may be said, however, to be one practical test of 
insanity, not dependent upon medical testimony, which may 
be applied in this case, and which we do not scruple to ac- 
cept as a criterion by which to judge of the prisoner’s state of 
mind. And that is a test suggested by Dr. Ray in his last 
valuable report to the Mainq legislature, on the state of the 
Maine Insane Hospital. I believe it i% not original with him, 
but it has good sense in it, whoever is its author. The test is 
this: whether there can be noticed in the party supposed to 
be insane, “ a departure from his ordinary character and 
habits, without any adequate motives.” (Fourth Annual 
Report, page 33.) We beg of you, at all events, to keep 
this principle in mind, in judging of the defendant’s conduct, 
whether you make it the sole basis of your final decision or 
not. 
But before I quit the point of opinion and tests of conduct, 
permit me to draw your attention to some observations on the 
subject of the distinction between real and feigned insanity: 
the ease or difficulty of seeming to be deranged, and the 
modes of discovering what is true, and what is pretended. 
Almost all of the medical writers seem to regard the simu- 
lation of insanity, as very difficult, or easily susceptible of 
detection. Thus, Georget, a distinguished French writer, 
does not believe, “ that a person who has not made the insane 
a subject of study, can simulate madness so as to deceive a 
physician well acquainted with the disease.” (Des Maladies 
Mentales, page 60.) And Mr. Haslam, a standard English 96 
TRIAL OF ABNER ROGERS, JR. 
authority, declares his opinion, “ that to sustain a paroxysm 
of active insanity, would require a continuity of exertion be- 
yond the power of a sane person.” (Medical Jurisprudence, 
page 322.) So, Professor Conolly, another English writer of 
established repute, says in a late treatise on Insanity, (page 
467,) “ that he .can hardly imagine a case which would be 
proof against an efficient system of observation.” If these 
remarks are true of insanity, generally, much more are they 
so, we apprehend, of monomania in particular. 
One of the very latest English writers on this subject, Dr. 
Pagan, whose book was published jn 1840, and which con- 
tains many valuable additions to the former treatises in our 
language, has some striking observations, to this very point. 
“ Monomania,” he says, “ may be concealed ; but it would 
be excessively difficult to feign it successfully. So far as I 
am aware, this has but rarely been attempted; and if such 
attempts were made, they would almost certainly fail. It is 
no doubt easy enough to affect peculiar opinions and cause- 
less enmities ; but it would be exceedingly difficult to follow 
out the delusions of monomania to their full extent. It would 
be a wonderful intellectual effort, indeed, for a person of 
sound mind to imitate that peculiar reasoning which arises 
out of, and centres in the fixed idea of partial insanity, with- 
out betraying the effort which it costs him : he would either 
over-act or fall short of the fact. No man, however well 
acquainted with the phenomena of the disease, could success- 
fully feign that obstinacy of belief in the grossest error against 
the clearest argument, without showing that it was assumed 
for the purpose of deception ; while no practice would enable 
him to imitate that aspect and expression which are so char- 
acteristic of this form of insanity It would re- 
quire more art than most men possess, to feign those instinct- 
ive impulses which lead to criminal acts, which I have already 
described, and which are believed to exist independently of TRIAL OF ABNER ROGERS, JR. 
97 
intellectual aberration. It would be impossible, I believe, to 
feign successfully the extraordinary agitation, anxiety, and 
anguish, which, for the most part, precede the criminal act, 
to the commission of which they are irresistibly impelled.” 
(Medical Jurisprudence of Insanity, pages 199, 200.) 
So, Dr. Taylor, in a chapter of his very recent work, on 
Medical Jurisprudence, specially devoted to this head of 
feigned insanity, has some remarks on the tests of real or 
feigned insanity, which I deem too valuable to omit. He 
says, (page 630,) “ it is necessary to remember, that insan- 
ity is never assumed until after the commission of a crime, 
and the actual detection of the criminal. No one feigns 
insanity merely to avoid suspicion. In general, as in most 
cases of imposture, the part is overacted — the person does 
too much, or too little, and betrays himself by inconsistencies 
of conduct and language, never met with in real cases of 
insanity We should observe whether there has 
been any marked change of character in the individual, or 
whether his conduct, when he had no interest to feign, was 
such as it is now observed to be In real insan- 
ity, the person will not admit that he is insane; — in the 
feigned state, all his attempts are directed to make you 
believe that he is mad ; if told that he is insane, he does 
not contradict you The feigning of monomania, 
would be a matter of some difficulty, and easily susceptible of 
detection.” 
Thus far, then, gentlemen, of the facts and probabilities, 
to show that this is a real, and no fictitious case of insanity. 
But, one other important element yet, remains to be consid- 
ered, which, though adduced against us, is to our view, almost 
proof positive, of the genuineness of the defendant’s disor- 
der. And that is the fact contended for by the prosecution, 
that he is now sane. Whether he be so or not, we shall not 
undertake to say. His disease may for a time have subsided ; 98 
TRIAL OF ABNER ROGERS, JR. 
it may still be upon him, and concealed with an insane man’s 
cunning, or with an honest disbelief on his part, of its exist- 
ence. But if it have actually left him, then why, if he is a 
pretender, has it left him in his season of greatest peril and 
need? Why was it not continued till, at least, the occasion 
of the first trial had passed ? Why has it not recurred in 
the interval, between that and this, to help out, in some 
measure, his former contrivance and counterfeiting, if con- 
trivance and counterfeiting it were ? 
But we can hardly bring ourselves to doubt, on the ques- 
tion of simulated, or actual insanity, generally, that you 
will believe the defendant’s mind was really affected with 
some deranging cause. Whether it was such a derangement 
as will exonerate him from responsibility in law, remains yet 
to be considered. What principles of law, then, apply to 
his plea of insanity ? 
In the first place, it is undoubtedly true, as contended for 
by the slate’s attorney, that if he were insane at the time of 
the homicide, it is for him to show it. The law supposes, 
rightfully, every man to act with a sound understanding, until 
he can make proof of the contrary. 
But how much proof is necessary to establish the contrary 
of mental soundness ? Slight circumstances, certainly, will 
raise a suspicion of a man’s intellect being affected, and not 
much stronger additional facts, will convince us to our own 
satisfaction, that his mind is not sound. This is all that is 
required, to overcome the presumption in question, and to 
sustain the burden of proof affirmatively. Once satisfied, 
that a man had not the use of right reason, at the moment of 
doing an act, and you are to exempt him from criminal re- 
sponsibility. It is not true that this negative proposition must 
be made out for him, beyond a doubt, as is sometimes stated. 
The nature of the case, does not permit the certainty of pos- 
itive demonstration. You cannot show that a man is insane, TRIAL OF ABNER ROGERS, JR. 
99 
beyond a doubt. But when you have once turned the scale 
of probabilities, then, there are all degrees of making sure the 
fact in question ; and as in any other matter of proof, no 
greater amount of evidence is to be required, than is satis- 
factory under the circumstances, so in this matter of insan- 
ity, you are not to insist upon a greater strength of proof, 
than the nature of the case will permit. We do not say that 
if we make out a doubtful case of insanity here, it is suffi- 
cient ; but it is enough, we contend, if we show a probable 
one; a satisfactorily probable one. The language of the law, 
we think, bears out this statement. Thus, as uttered by 
Lord Kenyon, in Hadfield’s case, (already cited) : “ Insanity 
must be made out to the satisfaction of a moral man, meet- 
ing the case with fortitude of mind, and knowing the anxious 
duty he has to discharge ; yet if the scales hang tremulously, 
throw in a certain proportion of mercy in favor of the pris- 
oner,” 1 stronger, if anything, than we have ventured to state it. 
Then, if our proofs shall satisfactorily establish the exist- 
ence of insanity in some degree, what insanity must it be, to 
exculpate from responsibility ? 
On this point, supposing that the law, as enunciated by the 
court, on the former trial, will be the guide of the present 
decision, we do not propose to go into its discussion at large. 
We understand the governing principle of this case, as stated 
by his Honor, the Chief Justice, on the former occasion, to be — 
(as we have it upon our notes,) — “ that partial insanity, or 
monomania, exempts from responsibility, when arising from a 
belief of some facts not true in themselves, which if true, 
would justify the act, as in self-defence; or where one be- 
lieves he is commanded by the voice of God, or some supe- 
rior power, to do the act; or where the mind of the party is 
in a diseased state, known to expose to acts of uncontrollable 
violence, so that although there was no previous indication of 
1 27 Howell, St. Tr. page 1354. 100 
TRIAL OF ABNER ROGERS, JR. 
violence, the subsequent act connecting itself with the pre- 
vious symptoms, is an indication to an experienced mind, that 
the outbreak was of such a character, as for the time being, 
to overbear the conscience and reason.” 
So far as regards the present case, we do not know that 
we need ask any reconsideration of this statement, in any 
particular; though as it respects the abstract proposition in 
the first category, requiring the existence of a state of facts, 
such as would justify a sane man, in the same kind of act, 
we believe the proposition would nearer accord with the 
opinions of the medico-scientific, if coupled with the last 
proposition, than if left standing by itself, as it now is. Thus, 
cases like Sclafer's, (cited from Marc,) and Hadfield's, and 
McNaughtoil’s, even, were not based on a state of facts 
which would have justified sane men in committing their 
acts; and yet, on the other ground of morbid impulse, they 
were undoubtedly irresponsible for them. The prisoner’s 
case, however, we believe, might safely be rested on the 
ground of supposed self-defence ; since, if the facts are 
established as we state them, they will show a fear for life, 
and a probable apprehension of immediate danger, which 
would have well warranted a taking of life, in self-preservation. 
The state’s attorney, however, does not see fit to abide by 
this statement of the law, and has insisted that the late opin- 
ion of the English judges, to the House of Lords, contains 
the principles applicable to this case. Why the law of Eng- 
land, having an authority among us only by way of analogy, 
should be paramount to the law of Massachusetts, I am una- 
ble to perceive. No doubt, the prosecuting officer finds in 
its short, and elliptical, and old-fashioned propositions, some- 
thing better to his purpose, than in the broader, more com- 
prehensive, and more scientific opinion of this court; but 
this same opinion was before their Honors at the last hearing, 
and is of course no more law now, than it was then. TRIAL OF ABNER ROGERS, JR. 
101 
B sides, to make a criticism or two upon the legal merits 
of this opinion, which, in the outset, as has already been ob- 
served, only purports to be predicated upon the merest abstract 
points of inquiry, it is a little remarkable, that if it settles 
anything, it unsettles the only well-established principles of 
law, relating to insanity, which have been recognized the last 
half century tn English jurisprudence. I mean the law of 
Hadfield's case. A case, which I had supposed, if any, was 
agreed on all hands to have been rightfully decided, and 
which, so far as I am aware, in all the recent discussions of the 
subject, has not been questioned in any particular. That 
case most distinctly involves among its leading features, 
the two elements of, “ the accused knowing he was acting 
contrary to law, but doing the act complained of, with a view, 
under the influence of insane delusion, of producing some 
supposed public and again, “of acting under a 
belief of a state of facts, which, if real, w’ould not have jus- 
tified the same conduct in a sane man.” The reported facts 
show, unequivocally, that Hadfield’s very words, at the time 
of his arrest, were, “ that he knew his life was forfeited 
“ that he was tired of it, and only sorry for the fate of his 
wife ; ” and that his delusion consisted in the idea of sacrificing 
himself for the good of mankind. Whether this would have 
been a moral and religious justification of the same conduct, in 
a sane man, it is not necessary to say ; but that it would have 
been no legal justification, is, I think, very clearly settled. 
That it shows a knowledge of legal consequences, and a wil- 
lingness to incur them for a supposed public good, is, also, too 
plain to need repeating. 
McNaughton's case, farther, which all the reviewers, as 
well as the debaters in the House of Lords, have not pre- 
tended to question — (at least so far as C. J. Tindal’s course 
is concerned, who virtually stopped the prosecution,) — is 
fundamentally overthrown by the same opinion. There, was 102 
TRIAL OF ABNER ROGERS, JR. 
a taking of life to get rid of persecution : — not, as it would 
seem, a persecution of a dangerous or alarming character, 
but only injurious to the peace and quiet of mind of the un- 
fortunate sufferer. The wdiole gist of that case, so far as the 
point of jurisprudence is concerned, is contained in the pris- 
oner’s own explanation of the matter to Dr. Monroe ; namely, 
that he believed Drummond to be one of the "crew leagued 
against him, and that when he fired at him, all the sufferings 
he had felt for months and years came up into his mind, and 
he thought he should obtain peace by destroying him. So, 
Martin’s destruction of York Minster was designed for the 
public good, and could not have been justified by any princi- 
ple of self-defence. So, Oxford, in all probability, acted with 
a view of benefiting the kingdom, or “ of avenging some sup- 
posed grievance or injury,” in shooting at Queen Victoria. 
But cases like the two latter, are not, perhaps, so much to 
be insisted upon, for the reason that they passed under the 
verdict of the jury. But in regard to the former, the inter- 
ference of the judges plainly amounts to a ruling of the law 
upon the whole facts, and is therefore, we conceive, an au- 
thority throughout. 
Bat, farther: this opinion in the House of Lords, if par- 
ticipated in by Lord Denman and the two other judges, 
(Alderson and Patterson,) who tried Oxford, varies materially 
from the law as announced by them on the occasion of that 
trial: a statement of law, which we believe to be the most 
satisfactory and scientific, so far as it goes, that can be found 
in English jurisprudence. Says Lord Denman in that case, 
(reported 9 C. & P. 525, 546,) “ if some controlling disease 
was, in truth, the acting power within him,” (the defendant,) 
“ which he could not resist, then he will not be responsible.” 
And again, (page 547,) “ the question is, whether the pris- 
oner was laboring under that species of insanity, which satis- 
fies you that he was quite unaware of the nature, character, TRIAL OF ABNER ROGERS, JR. 
103 
and consequences of the act he was committing; or, in other 
words, whether he was under the influence of a diseased 
mind, and was really unconscious at the time he was com- 
miting the act, that it was a crime.” 
This declaration of the law quite accords with the opinion 
of this court already expressed. It is the same also, in sub- 
stance, as that stated by Dr. Taylor, as, in his view, the most 
scientific and practical test for a jury to apply, namely : 
“ whether the individual at the time of the commission of 
the crime, had or had not, a sufficient power of control to 
govern his actions.” Taylor, 650. And we submit that it 
is the better exponent of English law upon the matter. 
Without then troubling the court with the points made, and 
the authorities cited, upon the former trial,1 I proceed to 
1 For the sake of reference they are here given. 1st. If the test of 
“ capacity to distinguish right from, wrong,” is to be adopted here, as the 
measure of the prisoner's responsibility, then it is not to be extended beyond 
his power of judging as to the act itself: it does not apply to conduct gen- 
erally. Hadfield's case, 27 Howell, Stat. Tr. 1282. Roscoe, Crim. Er. 
778. Alison, Crim. Law, 645. Lord Lyndhurst, in Ojford's case, 5 C. 
& P. 168. C. J. Tindall, in McNaughton's case. 
2d. The capacity to distinguish right from ivrong as to the particular 
act, means an ability to view it in its natural and true relations, as it usu- 
ally appears to men of sound mind. Lord Denman, in Oxford's case, (9 
C. &z P. 546-7 ;) Roscoe, Cr. Ev. 781. Mr. Erskine, in Hadfield's caser 
27 Howell, State Tr. 1317. Hume's Com. 1, 24-5. Alison’s Com. 645. 
Seventh Report of the English Crim. Lawr Commissioners, pages 18-19. 
McNaughton's case. 
This capacity to distinguish, (as above,) does not exist, where a delusive 
or diseased impulse hurries one away at the moment of action, so that no 
time is afforded for deliberation, though the mind could discriminate cor- 
rectly, if such time were afforded. In other words: morbid irresistible im- 
pulse, though accompanied with consciousness, is as adequate an exemption, 
as total unconsciousness. 
3d. We contend for the application of the test of Mr. Erskine, in Had- 
field's case, of “ delusion coupled with the act.” 104 
TRIAL OF ABNER ROGERS, JR. 
notice one or two other points of law which present them- 
selves in the case. 
And first, as to the point of the state’s attorney, that the 
prisoner’s offence, if not amounting to murder, may yet con- 
stitute manslaughter. That, as manslaughter is murder upon 
provocation or under sudden excitement, so murder under an 
insane or partially controllable impulse, may be no more than 
manslaughter. 
We admit the ingenuity of the argument: but to say that 
the provocation of an insane impulse is equivalent to the pro- 
vocation of the law of manslaughter, seems very much of a 
piece, to our thinking, with the reasoning, by which Lord 
Coke extends the penalties of burglary to the offence of break- 
ing into a church, namely, that as the law applies only to 
breaking into a dwelling-house, it applies to breaking into a 
church, because it is the Lord's dwelling-house — quoting for 
his authority, the passage of scripture, “ it is written, my house 
shall be called a house of prayer, but ye have made it a den 
of thieves.” 
More seriously, however, we believe the proposition is an 
entire novelty in English law ; and in American, also, with 
some exceptions which we have been able to discover, where 
the point was made, but overruled by the court. The point 
seems to have been suggested in McDonnough’s case, tried 
before this court in 1817, (reported in a pamphlet form by 
Mr. Knapp, one of the counsel in the case,) but was summa- 
rily disposed of by the bench. The very point however was 
raised, and received deliberate attention, in a case in New 
Hampshire, before the supreme court.1 I refer to the case of 
Daniel H. Corey, indicted in 1830, for the murder of Mrs. 
1 Also reported in pamphlet shape ; but by so good an authority, the 
present chief justice of that state, that I presume I may safely allude to 
it as entitled to credit. TRIAL OF ABNER ROGERS, JR. 
105 
Nash. The decision there, was, that insanity, shown to exist 
at the time of an homicidal act, cannot change the offence of 
murder into manslaughter. Say the court, (to quote two lines 
of their opinion,) “ if the prisoner had his reason at the time, 
the crime was murder; if he had not, he could commit no 
crime.” Page 73. This argument of the court is our own on 
the present occasion ; and we have nothing more to add. 
As we propose to call some pardoned convicts as witnesses 
in this case, we shall either ask the instruction of the court 
that they are restored to their credibility, (at least so far as 
this is not necessarily detracted from, by the circumstance of 
their coming from a place of confinement,) or for leave to 
support their word by proof of capacity for truth and general 
good character. Perkins v. Stevens, 24 Pick. 277. People 
v. Pease, 3 John. Cas. 333. * 
I have thus, gentlemen of the jury, imperfectly, though I 
fear with some trial of your patience, endeavored to lay before 
you the merits of the prisoner’s case. You are now in pos- 
session of his story. You will presently proceed to hear the 
testimony of the witnesses in support of it, and the argument 
of my associate : and when these brief, — to the prisoner, very 
brief, — proceedings are closed, you will have to decide the 
momentous issue of his life or death. What responsibilities 
belong to the occasion ! If the state’s attorney has felt him- 
self called upon to allude to them, and to invoke their solem- 
nities to inspire you with firmness to execute the mandates of 
stern justice, with equal propriety, may I remind you of them, 
to bid you be open to the dictates of mercy and humanity. 
This is indeed an office of the highest importance which you 
now sustain ! For the time being you are the highest power 
in the state. That power, which our constitution lodges in 
no man’s hands, nor, permanently, in any body of men’s 
hands — of taking life— is on this occasion vested in you. To- 
day, and for the time being, the course of our institutions 106 
TRIAL OF ABNER ROGERS, JR. 
makes you dictators in the state. This defendant is drawn 
before you in the bonds of the law, and your word sets him 
free or sends him to the scaffold. The czar of Russia has no 
more absolute power over the meanest of his subjects, than 
you have at this time over your fellow-citizen, there, at the 
bar. 
But consider, gentlemen, your responsibility to the commu- 
nity you represent, to your ownselves, and to Divine Power, 
before whom you stand; as well as to this helpless defendant, 
upon the present occasion. 
If you represent the state, you represent all its wisdom, and 
impartiality, and mercy. A great statesman of the mother- 
country, Mr. Burke, has said, that the soul of government lies 
in the jury-box: and that to secure its impartiality,all legisla- 
tion, and executive administration, and the course of govern- 
ment go on. Upon you, then, the community has reposed its 
best attributes. And it is here in the metropolis of New 
England, in the nineteenth century, with the best lights of 
American civilization and progress about you, that you un- 
dertake to judge this defendant capitally. See that you 
make no mistake of truth and correct judgment, and still 
more no mistake—lamentable mistake —of justice and im- 
partiality. If you err or wilfully misjudge, you, and the 
whole community through you, are guilty of no less than 
social murder. 
Bat if human relations involve responsibilities thus great, 
how much greater are those which you, which all of us taking 
part in these proceedings, sustain before the sight of Almighty 
Power! — To deprive one of our fellow-beings and brothers 
of the human race, of his life — that which we never gave, 
that wherein perchance we invade the prerogatives of Omni- 
science in assuming to take away — is the object, or may be the 
result, of our convening here. Slaughter in battle, or chance 
affrays, may perhaps be excused by temporary heat. But here, TRIAL OF ABNER ROGERS, JR. 
107 
with deliberate, and (if they be wrong,) with awful solemnity, 
the community enter upon the work of blood. I do not 
mean to argue the question of capital punishment now. 
Sufficient for me, in my present position, that the law stands 
as it is. But I cannot but call to your notice, that there is a 
higher law, and bid you, — by its solemn realities, — by its cer- 
tain judgment hereafter, — be careful that you administer this 
human law with all possible perfection of justice, and with all 
consciousness of the responsibility which you draw down 
upon the community and yourselves. Gentlemen, we act, all 
of us, now, in the open, immediate presence of Omniscience. 
A thin veil only separates the unseen from the seen ; and 
while I speak, and you listen and resolve, a judgment is going 
on of our thoughts, and feelings, and motives. Heaven grant 
we may not err in our respective duties upon this occasion ! 
But, gentlemen, if you sustain a responsibility to the 
community and to your ownselves, at this time, you do so, no 
less, towards the unhappy prisoner at the bar. With what 
feelings, think you, does he regard your panel? With all 
possible trust and confidence, I believe, as the judges whom 
he has been permitted to select from the list afforded him by 
the government; but still, as the arbiters of too solemn inter- 
ests, to behold with any other than feelings of the most 
watchful and anxious solicitude. The stake is too dear for 
him to put confidence in any man. His all, this side of the 
grave, is in your keeping. And if he has been a convict 
heretofore, if he has even twice broken the laws and merited 
punishment — (though we believe him still, a far better man 
than his punishments imply, or than he has been represented 
by the prosecuting officer) — yet the privilege of life is as 
dear to him, and the pains of death as dreadful, as to any of 
us. And will his former ignominy at all diminish the bitter- 
ness of suffering unmeritedly upon the fatal scaffold ? If he 
has any of the elements of a man left in him, and his name and 108 
TRIAL OF ABNER ROGERS, JR. 
good fame have already suffered so deeply, will it not be all 
the more aggravating, to have the last stigma of opprobrium 
fixed unjustly upon him, and all opportunity of retrieving the 
past, cut off? — to perish, and leave no other memorial among 
men, than that of, Rogers, the Murderer ? And, do you 
believe that he is lost to feelings of family honor and social 
regard, and has no sense of shame left for the sorrow and 
mortification of an aged father, and mother, and a large band 
of brothers and sisters? No! Gentlemen. His heart cannot 
yet be dead to these promptings of nature ; and you will, 
yourselves, remember, that the innocent, and perhaps highly- 
worthy, though humbly-poor relations of this prisoner, are to 
suffer with him and share in your verdict. 
More than all, gentlemen, the prisoner before you, your 
fellow-citizen by the laws, your brother of the human family 
by God’s creation, is a spiritual and immortal being. He has 
a soul to save, a probation to perform to his Maker. And if 
the past portion of his days has been abused, how dear, how 
infinitely precious the remnant of his days to atone for past 
offences and restore himself to the forgiveness of his God ? 
What earthly language can express the equivalent to him, 
for an opportunity to repent and reform ? May you remember 
these his necessities, as you will wish your own to be remem- 
bered hereafter. And when your own day of trial shall come, 
may your part in these proceedings — perhaps the most 
solemn act of your lives — help entitle you to the benediction, 
“ blessed are the merciful, for they shall obtain mercy.” 
Mr. Bemis having concluded his opening remarks, at half 
past eleven, A. M. proceeded to call the witnesses for the 
defence. 
David Sargent, called and sworn. I am a turnkey in the 
state-prison, and was such in June last. I have charge of the 
shoe and tailor’s shop in which Rogers worked ; have known 109 
TRIAL OF ABNER ROGERS, JR. 
the prisoner since May last. His general conduct was as 
good as any other man’s in the shop, until three or four days 
before the homicide. I noticed nothing unusual in his con- 
duct, of importance, till the Thursday or Friday preceding the 
15th June. He had always had the privilege of walking for 
exercise in the yard, ten minutes, forenoon and afternoon. 
On one or the other of the days named, he went out, and 
was gone, perhaps, fifteen minutes. He came in and told me 
that Mr. Braman had said he should see the warden, and put 
a stop to his walking out so. I told him that I should allow 
him to walk out until I had orders from some higher authority 
to the contrary. Mr. Payne, the deputy-warden, came in 
afterwards, and I spoke to him about the matter. He said 
Rogers might walk out as he had done, except when the 
work was pressing. Mr. Lincoln came in and asked if I 
allowed Rogers to walk out, and forbade it. I told him I 
thought he ought to be allowed the privilege, as he complied 
with the regulations of the shop, as well as any other man. 
He said Rogers was indolent, and did it to get rid of work. 
I told Rogers what Mr. Lincoln had said, and he replied, “ I 
don’t care much about it, I have got so little time to stay ; ” 
and went to his work cheerfully. 
Sunday night, Rogers made some noise in his cell, as I 
learned, and Monday evening was left out and ordered into 
solitary. I told the warden at this time that I thought the 
man was not in his right mind ; — this, however, from what I 
had heard through the other officers. 
Tuesday morning, Rogers came into the shop as usual, and 
dnce or twice, perhaps, three or four times, came up to me 
and told me “ that the officers were coming some kind of a 
game over him.” He called it the checkerberry game. I 
merely laughed at it, and told him that it was all his imagina- 
tion ; that if he complied with the rules and regulations he 
would not be punished. He told me that they were coming 110 
TRIAL OF ABNER ROGERS, JR. 
a popo game over him, and that he should not live twenty- 
four hours ; that the warden was going to shut him up, and 
he should not go out till he went out feet, first; that they had 
put checkerberry in his food ; and he had heard the men say, 
over his head, that he must hold his head down and sweat it 
off. He told me he had done so. He said Sam Robinson 
and Cole had told him this, in the division over his head. He 
did not say at this time where he was to be shut up. 
Wednesday morning, Rogers came into the shop without 
hat or shoes. He said that they were going to take him off 
to punish him. Mr. Fogg came in soon after, and a scuffle 
took place between them. When Rogers came in, he ap- 
peared excited as if he had been running. He came to me 
repeatedly during the day, and spoke of this game they were 
playing on him; that he should not live twenty-four hours ; 
that something was the matter with his head. His complaints 
were nearly the same as the day before, about the checker- 
berry, and his fears. I laughed at it. He spoke repeatedly 
of hearing these voices, telling him these things — that he 
would not go out till he went out feet first, &c. His ap- 
pearance, during this, was downcast and fearful. He appeared 
verjr sincere and not as if he were in joke in what he said. 
He went about his work during the day as if he were in a 
deep study and did not appear inclined to talk to any one. 
I can’t say that I saw him in tears. 
On Wednesday night, as he went out of the shop, I told 
him to mind and make no more noise in his cell, and he 
would have no more punishment; and he said he would. On 
that night I was on guard, in the guard-room, and about 
twelve o’clock the bell from the new prison rang. I went 
down and asked the officer what was the matter, and he 
said Rogers was making such a noise the men could not sleep. 
I waited a little while and heard no noise, and then went up 
and told Mr. Payne what was the difficulty ; and he said, let 
him be as he is. TRIAL OF ABNER ROGERS, JR. 
111 
Thursday, Rogers seemed agitated, and told the story of 
what he had heard from Cole and Robinson; that the warden 
was going to shut him up, and that he was not to go out till 
he went out feet first. He did not keep at work regularly in 
the shop, but would stop and hold his head down, and seemed 
in a study. The warden came in that morning, and I told 
him I thought Rogers was insane, and not in his right mind. 
He told me it would’nt do to talk in that way ; if I did, I 
should have every man insane in the yard. He intimated 
that it was done to get rid of work ; that he knew him better 
than I did. I thought, as I had been there but a short time, I 
might be mistaken. Rogers came to me the same morning, 
and asked to go to the Doctor ; and I permitted him, and gave 
him the pass-book. He took the book and went up, and an 
order came back for him “ to keep at work.” He told me he 
couldn’t sleep much on account of the talk over his head. 
Thursday noon he was showered. In the afternoon he did 
but very little, and appeared to be distressed, and under in- 
tense anxiety about being shut up, and this game which was 
to kill him. He seemed under very great excitement. He 
came to me soon after he came in, and said he was not able 
to work, his head felt very bad. I told him if that was the 
case, he might favor himself, and rest when he couldn’t work. 
I noticed him several times in the course of the afternoon, 
and he seemed to be a good deal agitated. In one instance, 
I saw him sitting with his hands clasped, and his head thrown 
back, as if in great agony ; and I spoke to Savary, one of 
the convicts, who has his place by me overlooking the shop, 
to observe his conduct. I went down to the end of the 
shop by him, and he said to me, “ Mr. Sargent, that story 
you reported of me, about breaking open that store in Lynn, 
is false.” I asked him what he meant by it. I merely laugh- 
ed at him; saw how it was, and thought best not to say much 
to him. This was between three and four o’clock, I should 112 
TRIAL OF ABNER ROGERS, JR. 
judge. Between four and five, he came to me to go and see 
the warden, to see if I could’nt get him released from pun- 
ishment. He did’nt say what punishment. I gave him to 
understand that there was no punishment hanging over him 
at that time. He asked me again to go and see the warden. 
I told him it was of no use, for he was gone away. Mr. 
Crowninshield, (the contractor of the shop,) came in. He 
had’nt been in more than twenty or thirty minutes, and was 
speaking to me, when Rogers came up to the raised platform 
where we were standing, and knelt down before Mr. Crown- 
inshield. He appeared to be in great anxiety and agony. 
His voice trembled, and his hands were clasped. He told 
Mr. Crowninshield to go and see the warden in his behalf. 
Mr. C. replied, that if lie did’nt go to his work, he would’nt 
do anything for him about it. After a few words more, 
Rogers went back to his work. About fifteen minutes after 
this, I should think, Mr. Lincoln came in. I told Mr. Payne, 
that afternoon, before Mr. Crowninshield came in, that I 
thought the man was insane, and ought not to be there. 
Mr. Lincoln came in with Mr. Jaquith, from the black- 
smith’s shop, and passed along at my left to the bench, where 
Thorn was at work. While they were there, I was turning 
to speak to Savary, and on turning back, I saw Rogers ap- 
proaching Mr. Lincoln, then within two feet of him, with his 
hand raised, and a knife in it. He struck him in the back ; 
and when Mr. Lincoln made a motion to raise his cane, re- 
peated the blow in the neck. By the time I had got to Mr. 
Lincoln, he turned, and fell into my arms. I called on the 
convicts to help me, and said, “ Rogers has murdered the 
warden.” I did’nt observe Rogers’s eye ; can’t say how he 
appeared in that respect. I did’nt hear any words spoken 
at the time the blow was given. Mr. Jaquith stood be- 
yond Lauber, a convict, and Mr. Lincoln was this side of 
Lauber, and betwreen him and Thorn. I did’nt notice par- TRIAL OF ABNER ROGERS, JR. 
113 
ticularly what Mr. Jaquith did; don’t recollect his taking 
any part. 
During the six weeks I had charge of the shoe-shop previous 
to the homicide, Rogers was particularly under my keeping, 
and no officer saw so much of him as I did. His statements 
to me about the voices, and the intentions of the officers, and 
his fears, were always the same. He always spoke of hearing 
voices. Savary is the overseer of the shop under me, to 
superintend the giving out the work. He was selected for 
his good conduct, and as a mark of favor. 
Cross-examined. I went to the prison the first of May 
last: but I had been acquainted with the prison, more or less, 
for eight or ten years, having occasion to visit it as an agent 
for a contractor. I had not put any mark against Rogers’s 
name in the hospital-book, when I sent him up with it; don’t 
recollect when he returned to the shop; think he didn’t in- 
quire about the prescription ; don’t recollect communicating 
what it was, to him, though it is my general practice to do so 
to the convicts. He spoke of hearing the voices in the night, 
from the first, I believe. It was the middle of Thursday 
afternoon, that he requested leave to see the warden. Rogers 
was not once out of the shop that afternoon. The warden 
was away, that afternoon, and didn't come through the 
shop as usual. I don’t know that I ever heard Rogers speak 
harshly of the warden. I never could understand what he 
meant by the popo or checkerberry game ; never heard such 
terms before: Cole and Robinson’s cells are so far off from the 
one occupied by Rogers, when “ in solitary,” that he couldn’t 
have heard their voices without their also being heard by the 
officer on duty. 
James M. Gardiner, called and sworn. I am a watch- 
man at the prison ; was such the 15th of June last; know the 
defendant, and have known him these three years. 
Monday night, the 12th of June, I was on duty in the new 114 
TRIAL OF ABNER ROGERS, JR. 
prison, the latter part of the night, from twelve o’clock till 
morning. At twelve o’clock, I took my lantern and examined 
all the cells, and saw that the men were all in their places. 
Rogers that night was in his own cell. About two o’clock I 
heard an unusual noise, like the voice of a person in distress. 
I lit my lantern as soon as I could, and endeavored to trace 
it. The noise wras very loud; but from the construction of 
the prison, it was hard to tell from what cell it came. The 
cry was a kind of groan. “ Oh dear,” “ oh dear me,” “ I 
shall die ! ” “ I shall die ! ” I went, first, up to the sixth divi- 
sion of cells, (the third range,) then descended to the fourth, 
(the second range,) on the same side, and then to the second, 
(the ground floor.) There I found it to come from Rogers’s 
cell. I put my lantern up to the grated door, throwing the 
light full on Rogers’s person, and saw him standing up, with 
his hands crossed, and a-trembling. His bed was turned up, 
and he was standing in his drawers. I spoke to him, and 
asked him why he was making such a noise. Says he, “ oh, 
Mr. Gardiner, I am going to die, I am going to die.” I told 
him he mustn’t make so much noise, he was disturbing the 
whole prison. He said he couldn’t help it: he had heard 
Cole and Sam Robinson say, that the warden was going 
to keep him in solitary the rest of his time; and if he did 
so, he knew he shouldn’t live. I ordered him fo go to 
bed and be still, or I should report him in the morning. He 
went back into his cell, saying, “oh, Mr. Gardiner, if I had 
taken my father’s advice ! ” “ I shall die, and I am not fit to 
die.” I told him he was dreaming; to lay still and he would 
get over it. He said, among other things, he shouldn’t go 
out till he went out feet first. When I first went to him, he 
talked and ran on so, that I couldn’t stop him at all. I finally 
got him still, and left him. 
I didn’t hear any more from him till just towards morning. 
He made a little more noise, then, just before four o’clock, 115 
TRIAL OF ABNER ROGERS, JR. 
when the bell rang to call the convicts to their work. I felt 
fully convinced at the time, that the man had waked up out 
of a frightful dream ; and I wrote on the book, “ all’s well,” 
the same as usual. 
In the morning, being on duty near the shoe-shop, I sent 
for R,ogers to come out. He came to me, and I asked him 
how he felt; if he had got over his dreams. He replied, “ I 
feel better, but I can’t make myself believe but that the warden 
is going to shut me up, and that I shall die. I’m sure I heard 
Sam Robinson and Cole talking about it.” I sent him into 
the shop again. The same morning I spoke of Rogers being 
frightened, when I was up at the guard-room, but didn’t mean 
to report him. Mr. Payne was present and took it for a re- 
port, and had him “ left out,” that night. When the warden 
called him to him at the foot of the stairs, I went up to the 
warden and told him I didn’t think Rogers knew what kind 
of a noise he was making last night. After he was sent into 
“ solitary,” I told him I was convinced that he had waked up 
out of a dream. “ Poh ! ” says he, “ you don’t know him 
as well as I do.” I was so convinced that he didn’t deserve 
punishment, that I spoke to him again upon the subject. 
Says he, “ you will find him out when you have known him 
as long as I have.” 
Thursday noon, I was on duty on the platform, to see the 
men turn out after their dinner. Rogers didn’t step out with 
his division. I went to his cell and found him on his bed. 
He had his jacket off and shoes. I spoke to him, “ what are 
you doing now ? — get up and go to work.” I spoke to him 
twice, before he started. He got up and put his shoes on and 
came out. I told him to go to work : and he set out to fol- 
low me into the barber’s shop, (which I was about entering,) 
instead of going to his own shop. But I looked round and he 
went the other way. His eye had a ferocious expression at 
this time ; different from what it appeared Monday night 116 
TRIAL OF ABNER ROGERS, JR. 
Then, he seemed more alarmed. He was very pale at this 
time. 
After the homicide, when the prisoners were locked up, I 
had orders from the deputy-warden to take Rogers up to the 
old prison. This was perhaps twenty minutes after six. I 
unlocked the cell, and told him to come out, and he instantly 
obeyed. He seemed willing to talk, and began to say some- 
thing, but I checked him. I took hold of his arm. Says he, 
“ I can go along well enough by myself.” Says I, “ I think 
it is best to hold on to such a fellow as you are.” I put him 
into the cell, having first gone in and searched the cell, and 
taken out everything that he could hurt himself with. On 
Friday night, being on duty in the guard-room, about two 
o’clock I heard a great noise in his cell, like what I had heard 
before in the new prison. He was crying out, “ oh dear, oh 
dear me ! ” &c. Saturday night, I was at the same place, 
and heard the same noise, but not so much of it I think. 
Sometimes I heard him taking on in the day-time ; say, dur- 
ing Friday, Saturday, and perhaps Sunday ; but not after 
Monday. I knew it was Rogers by the voice. One morn- 
ing, either Friday or Saturday, I should think, Rogers asked 
me what he had done. I told him that he knew what he had 
done : he had murdered the warden. He said, “ how dread- 
ful ! ” and spoke of the loss to the children who no longer had 
a father, and made some remarks about his own father. He 
asked, one morning, something in relation to what he had 
done, and said if the warden had let him go six months be- 
fore, this would have never happened. One morning, (I 
think it was the same,) he spoke of Sam Robinson and Cole, 
and the voices, and ran on in much the same strain as before. 
He spoke of the poco-game, Sunday-morning, when Mr. 
Dwight was there. 
Rogers’s own cell was in the division or story below Cole 
and Robinson’s, and distant nine cells one way from Cole’s, TRIAL OF ABNER ROGERS, JR. 
117 
and eleven cells the other way from Robinson’s — full thirty- 
five feet, I should think, from the nearest. No conversation 
could have reached him from either of their cells without be- 
ing overheard by the guard. The cell occupied by Rogers 
when in “ solitary,” was on the other side of the prison ; 
and I should judge that all communication would be impossi- 
ble. Rogers appeared sane after his father came, Monday. 
The night of the homicide, when I was leading him up to the 
old prison from the new, he appeared calm ; calmer and dif- 
ferent from what he had at noon. Rogers spoke with regret, 
more than once, of the injury he had done Mr. Lincoln’s fam- 
ily, and of the disgrace he had brought upon his own. He 
said he was a young man, and had ruined himself, and must 
die. Sometimes he had his usual demeanor, and again, talked 
wildly. 
Cross-examined. I should think that it was Saturday- 
morning that he said, if the warden had let him go six months 
before, he would have been alive, then. I am not certain 
that he mentioned Cole and Robinson’s names till after the 
homicide ; but he ran on in general as he had before the 
homicide. Robinson and Cole worked at the same forge in 
the blacksmith’s shop, and Rogers used frequently to go there 
to heat his pressing-iron. I never knew him, however, to 
speak to them : if I had, I should have reported him. There 
was always an officer in the shop to watch the convicts. I 
have seen him while his iron was heating, go to the shop-door 
and look up towards the house — (the guard-room) ; can’t say 
what was his purpose : but then he was not near Cole and 
Robinson. I shouldn’t think he could have had opportunities 
to converse with them in the washroom ; nor do they sit be- 
side him in the chapel. When I took him out of the cell, 
Thursday noon, he looked ferocious, as I have said before. 
He had just been showered, for his hair was still wet. 
Abraham W. Crowninshield, called and sworn. I am a 118 
TRIAL OF ABNER ROGERS, JR. 
cabinet-maker; am contractor in the cabinet and upholstery 
department of the prison ; have been connected with the 
prison as agent and contractor for twelve years. I know the 
defendant, Rogers ; have known him these five years, and 
have seen him every day that I have been at the prison. 
The first that I noticed anything unusual about the prison- 
er’s conduct, was on Wednesday, the 14th. On the morning 
of that day, he came to me and wished I should intercede 
for him with the warden, to save him from punishment. He 
said he was going to be punished, and if he were, he should 
die ; or it would kill him : I think he spoke of the warden's 
punishing him. I told him there was no danger of his being 
punished, unless he had done something worthy of it, and I 
would see the warden about it. I saw the warden not long 
after, and told him what Rogers had said to me, and that he 
didn’t appear to be right; there was something the matter 
with him. The warden told me that he thought he was only 
shamming it. The next day he came to me, in the fore part 
of the day, and thanked me for interceding with the warden 
for him. He told me that he had not been punished, that he 
had got some sleep, and that his head felt better, though it 
felt bad, then. I told him if he kept quiet he would have no 
more trouble. 
I saw him again the afternoon of the same day, between 
four and five o’clock. I was then standing at the desk, talk- 
ing with Mr. Sargent. Rogers came up to me and kneeled 
down on the platform, and appeared in distress. He told me 
that the warden was going to shut him up, and if he did, he 
should die ; it would kill him. I told him to go to his work, 
but he kept on begging and entreating, and appeared to be 
in great distress, and shed tears. I then told him if he didn’t 
desist, I wouldn’t go to the warden for him. He said he 
would go to his work, and do the best he could. I saw no 
more of him till after the homicide. I told Mr. Sargent at TRIAL OF ABNER ROGERS, JR. 
119 
this time that it was not right that the man should be kept in 
the shop ; he ought to be taken out; and I would go up and 
see the warden about it. I accordingly went up to his room 
and found him out. I saw Mr. Payne there, and told him 
Rogers was making quite a noise and disturbance in the shop, 
and ought to be seen to, immediately. Mr. Payne said he 
would attend to it. 
Rogers’s manner, appearance, and deportment on these 
occasions were altogether different from usual. He ap- 
peared uneasy, disturbed and not inclined to wTork ; and, I 
should say, diseased. He complained of a pain in his head. 
He seemed to be in fear of punishment, and thought if he 
were punished it would kill him. I did not observe any man- 
ifestation of resentment towards the warden. 
After Rogers returned from receiving his second sentence, 
I recollect asking him if Mr. Lincoln had spoken in his favor. 
He said he had — all that he could ; he had spoken ivell for 
him. I told him he had got off with a light sentence, and 
now he must try and do the best he could while he remained. 
He said he should. 
Rogers’s general behavior was good, so far as I had any- 
thing to do with him : better than the average of the convicts. 
I didn’t observe any appearance of feigning about him. His 
distress seemed real. 
I saw the defendant the next week after the homicide, in 
company with Doctor Bell and Mr. Fogg. He said he was 
glad to see me, and asked me if I thought he could have 
been in his right mind when he killed the warden. He said, 
“ they say I have done it, and I suppose I have.” I told 
him I should be sorry to believe that any man in his right 
mind, could have done such a deed. I asked him if he 
would have killed me, if I had taken hold of him at the time 
of the homicide. He replied that he did’nt know what he 
should have done. Mr. Fogg asked him if he should have 120 
TRIAL OF ABNER ROGERS, JR. 
killed him, if he had done the same, and he said he thought 
he should, if he had had a knife. I did’nt then know that 
he had had a scuffle with Fogg, or been punished. 
I was present when the defendant was brought out to see 
the corpse, Sunday noon. Mr. Payne asked him if he knew 
who it was. He said it was the warden, and seemed to be 
agitated. His hands were clasped and raised up, and I 
thought he was in prayer. He was muttering over something. 
Cross-examined. Rogers was hand-cuffed when he went 
up to the coffin ; he could, however, raise both his hands 
together. I did not inquire of him, what he expected to be 
punished for. We have as little conversation as possible 
with convicts. We contract for their labor by the day. 
Rogers had worked for us nearly five years, was generally a 
good workman. I do not know that anything was allowed 
for his loss of time. He worked very well. I don’t recol- 
lect hearing any complaints about his work. He was generally 
docile and kind. His tools were two or three long sewing- 
needles, one, a foot long, a quarter of an inch thick, of steel, 
and sharp, and which might be used for a weapon. He 
commonly had two or three knives; generally short, but 
sharp ones. He had occasion to go to the blacksmith’s shop 
to heat his pressing-iron, which is something similar to a 
tailor’s goose. The tools were left on the table and bench at 
night. He was at work upon a mattress Thursday afternoon, 
and came up to me almost as soon as I entered the shop. 
Mr. Baylies Braman was my foreman. I heard Mr. Eddy, 
(one of the officers) speak to Rogers at the coffin, Sunday. 
He looked up at Rogers and said, “ there’s the warden, and 
there’s the hand,” (pointing at his,) “ that killed him.” Rog- 
ers made no reply that I heard. 
(In answer to a question from a juror.) I regarded the de- 
fendant as possessing ordinary intelligence up to the short time 
before this act. I paid the same price for him, as for others. TRIAL, OF ABNER ROGERS, JR. 
121 
George H. Savary, called and sworn. (This witness, it 
was agreed, had received a pardon, to enable him to testify 
on behalf of the prisoner.) I reside in Randolph, and am a 
shoemaker by trade. I was a convict in the prison in June last; 
have known the defendant five years. When in prison, I 
was overseer of the shoe-shop, so far as to cut out the men’s 
work, and see to its completion, and to its being entered on 
the book. My place in the shop was to stand at the left of 
Mr. Sargent, below the platform. I had the liberty of being 
in the prison at large, nights, and also of speaking to the 
convicts under the direction of the officer. 
I observed some peculiarities in Rogers’s conduct as early 
as Thursday or Friday, preceding the homicide. I think it 
was Friday that he came in from his walk, and complained 
that Mr. Braman had scolded him for being gone too long. I 
think he said Mr. Braman charged him with having been out 
an hour, when he had’nt been gone more than fifteen min- 
utes. His manner was agitated at this time. 
I noticed nothing more till Sunday morning. After the 
men had taken their breakfasts, I offered him in course, some 
of the extra food that had been left. (It was my duty to 
distribute it in that way.) He at first refused, but on my 
urging it, took some and ate it. I noticed his appearance as 
he was eating, and observed that he looked wild. He also 
ate his food with great voracity. 
The next I noticed about him was on Tuesday morning, 
after he came into the shop to work. He looked wild then, 
and stared about a great deal. He was sent for, out of the 
shop, for something, (to be showered, probably,) and when 
he returned he looked agitated. Tuesday evening he was re- 
ported, and left out on account of the noise which I had heard 
the night before ; (I did not then know that it was he who 
made it.) I saw him sent into “ solitary,” Tuesday night. Be- TRIAL OR ABNER ROGERS, JR. 
tween seven and eight o’clock, I heard a noise in the direction 
of his cell; could distinguish some of the words, as “ Oh 
dear ! ” “I shall die ! ” “ I shall die ! ” I went down to the 
door of his cell, and found that it was him, and asked him 
what was the matter. He said that they were going to take 
him up to the old prison and keep him there until his time 
expired. He said Sam Robinson and Cole had told him that 
they were coming the checkerberry-game over him. (In re- 
ply to a question from one of the counsel, “ why he came to 
go down to Rogers’s cell and hold this conversation with 
him ? ”) — It was my duty to attend to any noise or any call 
of the convicts, and for this purpose I had the liberty of the 
prison, not being locked in my cell. When I went to Rogers, 
he was standing up with his hands crossed. He told me fur- 
ther, at this time, that they were all down upon him. I in- 
quired of him who he meant by they, and he said the officers 
and prisoners. I asked him, if I was not his friend. He 
replied, “ you may be.” He went on, “ they have got a 
notion that I am lazy: but I am not lazy. When I went out 
last time from here, I made nine hundred pair of shoes, and 
went a fishing : ” this, in a connexion which I didn’t under- 
stand. He went on further with many incoherent phrases 
which conveyed no idea to my mind, and which I cannot 
now recollect. In the course of a few minutes he came back 
♦ 
to the same conversation as he began with, interrupted with 
the exclamations now and then, “ Hark ! ” “ Oh dear ! ” He 
said he had held his head down to sweat the cheekerberry off, 
and had felt better after it. I said nothing in reply, but asked 
him if he wouldn’t have some water. Without seeming to 
notice my question, he broke out, “ There ! ” “ Did you hear 
that noise ? ” “ My head is going again ! ” “ What noise ? ” 
said I. “ Why, that they are going to punish that man ; ” 
using an oath. I asked him again, if he wouldn’t have some 123 
TRIAL OF ABNER ROGERS, JR. 
water. “ You only offer me water,” said he, “ to pacify me : 
but I shan’t live three days.” Once during this, he used the 
word poco ; the first time I had heard it. 
Mr. Patterson came along and I went and brought some 
water. When I handed the water to him, he said again, that 
he shouldn’t live twenty-four hours. I had no further con- 
versation with him. I should say, the fear of undue severity 
of punishment — some punishment to be suffered in future — 
was the cause of his distress. 
Mr. Patterson pacified him, and Rogers went back from 
his cell door. Between eight and nine he began the noise 
again. Mr. Patterson ordered me to ring the signal-bell, and 
have him taken out. After I had rang it, Mr. Corey, one of 
the officers, came to the gallery-window, and asked what was 
the matter. I told him Rogers was crazy, and making such 
a noise as to deprive the men of their sleep. He repeated 
the term in a tone of ridicule, and went away. Soon after 
this, I retired myself; heard something more of the noise, but 
could distinguish nothing that was said. 
I saw Rogers again, next morning, Wednesday, after we had 
been in the shop ten or fifteen minutes. He came in with his 
stockings half drawn on, and without cap or jacket. Mr. Sar- 
gent said to him, “ Rogers, you have run away.” He said he 
had ; and then went on to tell him, “ it is too bad, Mr. Sargent, 
to kill so young a man as I am, in this way. It is your duty 
to let people outside know about this.” “ About what ? ” 
“ Why,” says he, “ the warden is going to take me up to the 
old prison, and keep me there as long as I stay here.” He 
added something about checkerberry being mixed with his 
food, and declared that he should starve to death. I went 
off to find the deputy-warden, to let him know the man’s 
situation, as I knew he ought not to be there. When I 
came back he was gone : (to receive his showering, I sup- 
pose.) After this, during the day, he appeared more calm : 124 
TRIAL OF ABNER ROGERS, JR. 
so much so, that one of the men remarked that showering 
had done him good. 
Towards night, Wednesday, Mr. Sargent called Rogers to 
him and said, be sure that you don’t make any noise in your 
room to-night. He promised that he wouldn’t, if his head didn’t 
get a-going again. Mr. Sargent requested me to call and see 
him that evening after he was locked in, to see how he did. 
At eight o’clock I got leave of the officer on duty, Mr. Fran- 
cis, and went down to his cell. I asked him how he did. 
He said he felt better ; but “ is it possible,” he added, “ that 
all these sounds are in my head ? ” I told him that he had 
probably been without sleep a good while, and his head had 
become unsteady : that I had felt something of the same kind 
myself, when I had been deprived of sleep. “ Well,” he 
replied, “ I don’t know but it may be so.” I then asked him 
if he had taken any food, and he said he hadn’t. I advised 
him to do so, and he said he would. I then left him. 
Thursday, before noon, lie exhibited increased symptoms 
of wildness. His eyes were downcast, his face pale, and his 
features distorted. He came up several times and spoke to 
Mr. Sargent, but I didn’t hear what he said. In the after- 
noon, as he passed by to go to the blacksmith’s shop, I no- 
ticed his eyes were rolled up as if he were looking towards 
the guard-room. Soon after, when he had returned, Mr. 
Sargent called my attention to his looks. I saw him sitting 
on his bench with his hands clasped and his face upturned, 
and as I went down by him to the other end of the shop, 
heard him using the language of prayer, and then of blas- 
phemy. Ho would then turn to working, for a little while. 
After that he would leave off and appear to be in a study, 
with his eyes rolling round. Being absent from the shop a 
little while, myself, I came back and found him kneeling at 
the platform to Mr. Crowninshield. After this I noticed Mr. 
Braman scolding him. He appeared more wild and ferocious, 
then, than I had ever seen him before. TRIAL OF ABNER ROGERS, JR. 
125 
I saw Mr. Jaquith and the warden come in and go to Thorn’s 
seat, and while Mr. Sargent was saying something to me, he 
exclaimed, “ Rogers has killed the warden ! ” I saw a blow, 
and ran, and was just in time to save Mr. Lincoln from fall- 
ing. I heard no words spoken at the time. Mr. Lincoln 
was on Thorn’s left, and Lauber, a convict, between him and 
Mr. Jaquith : so that Jaquith was farther off from Lincoln 
than Lauber. 
I saw Rogers, Thursday evening, when they took him out 
of the cell, and removed him to the old prison. He looked 
more calm. I saw him again Saturday morning, the 17th, in 
company with Mr. Fogg, and McGinnis and Diamond, two 
convicts. I went and got some breakfast for Rogers. Mr. 
Fogg went up to the door and asked him if he wanted some 
breakfast. He told him to stand back from the door, and 
then opened it. Rogers came out hand-cuffed. He ap- 
peared in a state of deep despondency. Mr. Fogg led him 
along the arch to the west end, and put his food down on a 
bench, and then helped him to fix his dress. Rogers sat down 
to eat, but began to smell of it, and then swore most pro- 
fanely, that there was checkerberry in it. I tasted of the 
food, and then he ate some after me. He also smelt of 
his coffee, and swore there was checkerberry in that. Mr. 
Fogg asked him if he would have some water. He drank 
freely, and said there was no checkerberry in that. He then 
counted us, excepting himself, and said here’s just enough 
for a game of loo. He then turned to me and asked me if I 
had seen Simmons. I replied that I had, that morning. 
“ No you havn’t,” says he : “You may have seen his body, 
but he is dead long ago. He was brought down here and 
put into one of these cells, and I heard him groan his last.” 
“ Don’t you know,” says he, (without addressing himself to any 
one of us in particular,) “ that there’s a new order of things now- 
a-days ? — Bodies walking about without souls ? I don’t know 126 
TRIAL OF ABNER ROGERS, JR. 
whether mine is so or not. I tried to halloo this morning, 
and couldn’t; and tried to raise blood from my finger and 
couldn’t.” He then called our notice to his knee-joint, saying 
the swelling was owing to the checkerberry-game. Mr. Fogg 
told one of us to go and get a bed for his room. He said 
that there had been a corpse in that room about five hundred 
years. We gave him a bed and left him. 
I saw him again at a distance, Sunday: and Tuesday, 
again. I asked him then, if he had any antipathy against the 
warden. He said, no. I asked him if he hated Mr. Braman. 
He answered, no, to that, but after some hesitation. 
I had never heard Rogers swear before this time. The laws 
of the institution forbid profanity, and it is seldom heard in 
presence of an officer. On this occasion he indulged in it fre- 
quently. Twice he spoke of Cole and Robinson, and once 
he coupled Bray’s name with them. He said that they had 
used the checkerberry-game at the Auburn prison, as they told 
him ; and that a man couldn’t stand it more than three days. 
I think it was in the conversation, Tuesday evening, that he 
said he heard Cole and Robinson whispering these things in 
his room. 
I have noticed Rogers as a silent, melancholy kind of man, 
generally ; but during this whole week his appearance was 
changed. He had a pale look ; his eye was wild, sometimes 
fixed and set, and sometimes rolling round. I heard him 
sometimes muttering to himself. I think I heard him tell Mr. 
Sargent, Wednesday morning, that he was “regular.” 
Cross-examined. My real name is William Bradley. I 
went to prison under the name of Savary. I slept in cell No. 
I, of the prison, the 15th of June last. I did not hear the 
testimony given yesterday, but came in from Randolph this 
morning. I was witness on the former trial, and testified, so 
far as I can recollect, the same as I now have. 
William Burnett, called and sworn. (This witness had 127 
TRIAL. OF ABNER ROGERS, JR. 
been rendered competent, partly by pardon, and partly by 
writ of error). I was pardoned out of the state-prison in No- 
vember last; know the defendant Rogers; have known him 
two years and a half. This was when I worked in the 
upholsterer’s shop. I have never worked in the shoe-shop. 
From one to two months before the homicide, Rogers said the 
officers and warden were combined to destroy his life. I 
don’t know what caused him to suspect this. He said that 
he could hear voices talking about his cell at night, saying 
that they were going to shut him up and keep him there. 
He used frequently to tell me something to this amount. At 
times he looked wild, and would come to me as if he had 
some errand, and then would forget what it was. He said, 
within a week of the homicide, that his food was poisoned. 
I told him it was no such thing. His remarks were frequently 
incoherent. He was confident he shouldn’t live to get out. 
I have known him so lost at times as not to be able to keep 
account of his work, from one part of a day to another. 
Cross-examined. I obtained my pardon without any 
application on my part. I had been in prison four years and 
one month, and had two years and eleven months to stay. I 
had mentioned what I have testified, to some of the convicts. 
I told it to Mr. Bemis the week before I was pardoned. I 
had heard that some of the prisoners had been pardoned to 
testify in the case. Convicts were not allowed to talk, but they 
did so when the officer was not in hearing. Rogers found an 
opportunity to speak to me, when the officer was at the other 
end of the shop. The conversation I had with him might 
have been a fortnight before the homicide. I thought him 
deranged, or not in his right mind, ever after I knew him. I 
went to prison in September 1837, and knew Rogers soon 
after. I thought he considered me his friend and made a 
confidant of me. 
James H. Bradley, called, and sworn. I was called as a 128 
TRIAL OF ABNER ROGERS, JR. 
witness on the former trial by the government; was pardoned 
from tire state-prison ; received my pardon from the hand of 
Mr. Parker, the state’s attorney. 
I know the defendant, Rogers; have known him five years 
or more. I worked in the shoe department; and he has 
worked there a year or two, I should think. The first I 
heard of anything unusual about him, was a noise which I 
afterwards knew came from him, which I heard, Monday 
night. The noise was very peculiar; loud and shrill, like f 
sharp, or g, in music. It seemed to come from a person in 
great distress. I saw Rogers Tuesday morning, in the bar- 
ber’s shop. Mr. Payne told him he had been reported for 
making a noise the night before, and asked him how he 
came to do so. He said it was in consequence of his distress. 
I saw him several times, Tuesday, but don’t recollect speak- 
ing to him that day. 
Wednesday morning, he came into the shop with his dress 
in disorder and with a wild and haggard expression of coun- 
tenance. He went up to Mr. Sargent’s desk and had some 
conversation with him. I did’nt hear all that was said, 
though I think I recollect hearing Mr. Sargent tell him, 
“ Rogers, you are out! ” “ No I an’t,” he replied, “ I am as 
regular as any body. You’ll see.” Mr. Fogg came in, and 
the scuffle ensued. As Mr. Fogg came up to him, Rogers 
said something like, “ they’re going to kill me ; ” or “ don’t 
kill me.” After he was showered, I thought -there was an 
alteration in his appearance for the better. About nine 
o’clock he asked me if I thought there would be any punish- 
ment against him for seizing Fogg. He gave as an excuse 
that his head was disordered. I saw Fogg, and he said he 
had’nt reported him. Rogers came to me again in the fore- 
noon and asked for garden-seeds. He complained at this 
time also, of his head. I had no farther conversation with 
him till Thursday. 129 
TRIAL OF ABNER ROGERS, JR. 
Thursday morning, when I was washing at the sink, he 
came to me and wanted to know if I had ever heard of such 
a thing as checkerberry’s poisoning a man. I told him I 
hadn’t, and wanted to know why he asked. He replied 
“ they are going to poison me with checkerberry.” I asked 
him, “ who ? ” And after repeating the question, perhaps a 
half a dozen times, he answered, “ the officers and warden.” 
I asked him who told him so; and he said, Sam Robinson 
and Cole. He then asked me if there was anything singular 
about his eyes. I told him no; except that one was inflamed. 
He then repeated the story about the checkerberry game, and 
said he shouldn’t live ; (I can’t say precisely how many days.) 
He said it over again, and this time gave the number of days 
only half of what he had before. He said the only way of 
getting rid of this checkerberry game, was by holding his 
head down and sweating it off; that he had tried it the 
night before, but as soon as he held his head up again, it 
came back. I saw him holding his head down several times 
during the day after this. 
During these two or three days, I think the prisoner’s 
demeanor and general conduct was quite different from usual. 
He was frequently running up to the desk. I heard him 
muttering to himself, also. He spoke about this checkerberry 
game as if it were a reality ; and as if it had full possession of 
his mind. I saw him go up and kneel down to Mr. Crownin- 
shield. When he came back I noticed that he was in tears. 
I witnessed the homicide, and went to Mr. Lincoln’s assist- 
ance. I saw Mr. Jaquith, but did not notice his taking any 
part in assisting, and thought he appeared very much 
frightened. I am confident there were no words spoken at 
the time of the homicide, nor any other sound uttered than a 
slight groan from Mr. Lincoln. I was at my bench, eight 
feet distant from where Mr. Lincoln stood. 
Cross-examined. I am brother of the witness Savary; 130 
TRIAL OF ABNER ROGERS, JR. 
I was the first person who went to Mr. Lincoln’s help, but 
am not aware that my pardon was owing to good conduct on 
that occasion. It was not granted at my application. My 
testimony is the same as on the former trial, except in relation 
to the circumstance of the garden-seeds, which I have since 
recollected. 
Ebenezer Payne, called and sworn. I am deputy-warden 
of the state prison ; was such in June last; have known de- 
fendant ever since he first came to the prison. The 15th of 
June, Mr. Sargent came to me, and said there appeared to 
be something wrong about the defendant. Mr. Crowninshield 
the same day wanted that I should have him removed from 
the shop. I told him I would see the warden and let him 
know. I spoke to Mr. Lincoln at the guard-room, and told 
him what Mr. Crowninshield and Sargent had said. He 
asked me what I thought about it. I told him, I thought it 
as well to take him away and shut him up. Says he, “ he 
will do well enough as he is : better let him be.” I thought 
he had better be taken out of the shop, and shut up, because 
Mr. Crowninshield didn’t want him, and not because I thought 
he was dangerous. I did tell the warden that I thought 
Rogers was not right, but it was from what others had told 
me, and not what I saw myself. I didn’t think much of what 
Mr. Sargent said, because he was a green hand and didn’t 
understand him. He hadn’t been at the prison more than six 
weeks, except when he had been in there occasionally as an 
errand-boy. Mr. Sargent may be thirty-five years old now. 
I believe Mr. Lincoln, when he said Rogers will do well 
enough as he is, also added something about his “ shamming 
it like Washington.” Washington had been a convict. We 
never knew whether he was insane or not, when he was at 
the prison. I have heard since, that he is insane. I remem- 
ber a man by the name of Richard Roe: can’t say whether 
the warden considered him insane or not. He kept Peters TRIAL OF ABNER ROGERS, JR. 
131 
shut up. I saw Rogers after the homicide, and heard him 
say that he hadn’t slept for fifteen nights. His appearance 
and conduct did not seem natural that night, nor for several 
days after. Immediately after the homicide, Rogers, when I 
spoke to him, would run on about the checkerberry and poco 
game ; repeating the wrord poco very fast. I heard him tell 
Mr. Curtis, one day, that he should be hung. Mr. Curtis 
asked him if he had killed the warden ; and he said, “ they 
tell me I have, and I shall be hung for it: Mr. Lincoln was 
a man extensively known, and I shall be hung for example’s 
sake : Prisons wouldn’t be safe without it.” Rogers did 
complain of his head ; said there was a buzz in it, and all 
about it. I think he said he had got some sleep, Friday night, 
and felt better for it. He had had no bed previously : I was 
afraid to trust him with one. 
Cross-examined. We have had some cases of simulated in- 
sanity in the prison. I have known men afraid they should’nt 
live their time out. Lauber was afraid he shouldn’t live his 
time out: but I advised him to put off dying, and he con- 
cluded to. I had Rogers put into the old prison that he 
might not disturb the other convicts with his noise. I thought 
his conduct after the homicide not to be natural, because I 
should suppose no man would appear natural who had com- 
mitted such a crime. I saw him between four and five, in 
the afternoon of the 15th, and he seemed natural then. If I 
had seen anything wild about him, then, I should have had 
him taken care of. 
Thursday, February 1. The defendant’s testimony pro- 
ceeded. 
Baylies Brarnan, called and sworn. I am connected with 
the prison as contractor’s foreman ; have been so these three 
years past. My place is in the upholstery department. I 
have known the defendant nearly three years, and for a year 
and a half, had him under my immediate superintendence. 132 
TRIAL OF ABNER ROGERS, JR. 
Since then, he has worked in the shoe-shop, because there 
was not room enough in the upholstery department. But he 
has still worked at the same business, and used to come to 
the other shop for his materials and directions. I saw him as 
often as ten or fifteen times a-day. The shoe-shop was a 
story above the upholstery, in the same building. 
The first I noticed of anything unusual in Rogers’s behav- 
ior, was on the Monday or Tuesday preceding the homicide. 
He came to me and said he didn’t wish to go to the black- 
smith’s shop again, for they had been playing a game upon 
him. (He went to the blacksmith’s shop to heat his pressing- 
iron or goose.) He said Cole and Sam Robinson had tried 
to make him think that it was the officer of the blacksmith’s 
shop talking to him. He said that they had frightened him 
almost to death. I replied to him that it was a pity he should 
get scared. He said that they had frightened a man in that 
shop before, almost to death, who knew more than anybody 
else in it. I made him some careless answer, thinking it of 
little importance. 
Some time, Wednesday, he came to me and said that the 
warden was going to shut him up, and he was afraid if he 
did, that he shouldn’t live to get out. He came to me a num- 
ber of times that day, and wished me to speak to the warden 
to save him from being punished. He said he was yet a 
young man, and if he lived to get out, he meant to lead a 
different life. He spoke of havihg a very bad pain in his 
head, over his eyes: If he wasn’t shut up he should be well 
enough the next day : all he wanted was a little sleep. I 
think he spoke to me that day, of hearing voices. He heard 
them talking, nights, about him. When he came to me, he 
was commonly in tears, and would constantly beg me to 
speak to the warden not to have him punished. I told him 
it was all his imagination. I didn’t think the warden had 
any idea of punishing him in the manner he spoke of. In the TRIAL OF ABNER ROGERS, JR. 
133 
afternoon I promised him that I would speak to the warden 
if he would go to work. The warden came through towards 
night. I told him I didn’t think Rogers wras in his right mind. 
He replied, “ he is no more insane than I am. There is 
Washington up at the Hospital, shamming it in the same 
way.” I told him Rogers was afraid of being punished that 
night. He replied, if he behaves himself, he won’t be. 
Thursday morning, he came to me and said, “ you told me 
right: I was not punished last night.” But he went on to 
say, that he heard Jo Hutchinson, and either Cole or Robin- 
son, talking all night so that he couldn’t sleep; that they 
said, it was too bad to kill Rogers; that they were going to 
shut him up the rest of his time. In the afternoon, soon 
after dinner, he came to me and wished for leave to go up and 
speak to the warden, himself, at the guard-room. I told him 
I couldn’t give him liberty unless the warden sent for him, 
and that the warden would pass through the shop and then 
he would have an opportunity to speak to him. He came 
down to the upholstery shop several times and wished me to 
speak to the warden, for he was going to shut him up. He 
spoke several times that afternoon about the checkerberry or 
poco-game. He was going backwards and forwards much of 
the time, and didn’t do but very little work. Between 4 
and 5, I gave him a mattress to stuff for Mr. Crowninshield’s 
own use. I wished him to finish it that night and do it well. 
He said he would. I told' him he might have Simmons, (who 
worked by him,) help him. Shortly after, I went up to give 
Simmons instructions about it. I found Rogers, then, gone 
up to Mr. Sargent’s desk and kneeling down. When he 
came back, he came to the mattress and took a knife and 
went to ripping it. He was, then, shedding tears. He beg- 
ged me to go to the house to see the warden, and to ask 
him to give him ten stripes and have it settled. He said if 
he was shut up he shouldn’t live twenty-four hours. He 134 
TRIAL OF ABNER ROGERS, JR. 
said that either Cole or Sam Robinson had told him, that 
after a man had had this checkerberry game played on him, 
he could never live over twenty-four hours. I told him, re- 
peatedly, that he wouldn’t be punished if he attended to his 
work. I told him I couldn’t go after the warden, but when 
he came through the shop he could speak to him. At this 
time hi§| head was thrown back, he wasn’t looking at his work, 
and cut the binding. I spoke to him two or three times to 
look on his work. He kept begging me to intercede for him 
with the warden, and asked me if I didn’t hear his father 
praying up at the house. I told him to pay attention to his 
work, and if he didn’t make any noise he might be assured 
he shouldn’t be punished ; and that if he didn’t attend to his 
work, I should have to report him. I intimated to him just 
before I left the shop that I would speak to the warden when 
he came through. He said, “ I thank you, and I will do any 
thing in the world for you. I will get down on my knees to 
you.” I left the shop, and hadn’t an opportunity to speak to 
the warden again before the homicide. 
I saw Rogers between ten and eleven that night, at the old 
prison, with the deputy-warden and another officer, who went 
up to iron him. He was standing up, then, in the back part 
of the cell. When we went in, he said, “let me see the 
warden’s face once more before I die.” I didn’t see him 
again till the former trial. 
When a convict goes up to the house to see the warden, 
he stands outside, at a window, the sill of which is about 
breast high. Thp distance between them, if both stand close 
to the window, would be two feet or more. The window is 
grated. Rogers used knives at his work habitually. Two of 
these, (exhibited,) were in common use, short ones, and they 
had a larger one, this, (identifying it) ; don’t know whether 
it was on the table at the time. They had such a knife com- 
monly, and at all times had access to knives for their work. TRIAL OF ABNER ROGERS, JR. 
135 
When I told Rogers, Tuesday morning, that what he had said 
was all his imagination, he said, “ I suppose it is as you say.” 
He appeared to be in great distress when speaking of his 
troubles, frequently shedding tears. He spoke rapidly ; in a 
different manner from usual. His general appearance differed 
from what it was ordinarily. He didn’t pay attention to his 
work and was restless and uneasy. He came down to the 
upholsterer’s shop frequently and unnecessarily. He had a 
wild look about the eye. There was but little sense in what 
he said when he ran on as I have described. 
Cross-examined. Rogers worked in the upholstery shop 
about the time of his additional sentence. I recollect so long 
ago as then, his showing something strange in his appearance. 
After he had been arraigned, but before his case was disposed 
of, he came up to the warden one day to the desk and shed 
tears about his sentence. He asked Mr. Lincoln if he would 
insure him for as little as a year’s sentence. He said he was 
afraid he should never live to get out. I have never heard 
but few complaints about Rogers’s work. A cushion which 
he did the day of, or the day before the homicide, was found 
stuffed wrong. The warden usually came through the shop 
soon after dinner ; and if a convict wished to speak to him, he 
usually waited till then. (In answer to a question from a 
juror.) Rogers’s general conduct was good ; and so was his 
temper. 
Lucius Patterson, called and sivorn. I am a watchman 
at the prison ; was such in June last, and have been such 
twenty-one months. I know the defendant ;.have known him, 
to distinguish him, some eight months. I was on duty in 
the prison, Tuesday night, the 13th, in the fore part of the 
night. Some twenty minutes past seven, my attention was 
directed to the solitary cells, by a noise. 1 went and found 
Rogers there, making the noise, talking and muttering over to 
himself. It was a melancholy kind of noise. I ordered him 
to stop, and went from the cell to the south side, and waited 136 
TRIAL OF ABNER ROGERS, JR. 
a while, and heard the noise again. I went back and tried 
to reason with him about disturbing the prison, so, telling 
him he would subject himself to greater punishment if he 
kept on. I can’t say, whether at this time he told me the 
cause of his making the noise. But after I came back the 
third time, in consequence of his renewing the noise, he said 
they were going to starve him, and he should’nt go out, till 
he went out feet first. He said they were talking over his 
head. I asked, “ who ?” and he said he heard Mr. Bean’s 
* 
voice, (one of the officers.) I told him it was no such thing ; 
for I had locked the door on the inside, and had locked all 
the officers out. I then asked him what he meant by being 
starved to death? if he hadn’t had his customary rations? 
He said he had. I told him he wouldn’t be harmed if he 
obeyed the rules and regulations. After telling him this, he 
broke out, “ is it all my imagination ?” “ am I going to be 
crazy ?” I found reasoning would do no good, and told him 
to lay down, and he would have no trouble about his bread 
and water. He stopped his noise, and continued quiet till 
half past eleven. He made some noise then, but stopped 
when I went to him. When I talked with Rogers the first 
time, I told Savary to ring the alarm-bell. He was present 
one of the times that I was at Rogers’s cell. 
Cross-examined. Savary said Rogers was crazy and had 
better be taken away. 
Bernard Lauber, called. (Objected to by the state’s attor- 
ney, as incompetent, from having been convicted for receiv- 
ing stolen goods. Record offered, showing his conviction of 
that offence, and his commitment to the state prison.) 
Bemis. We object to the admissibility of the record, as dis- 
closing no disqualifying offence. Infamy can only be made 
out, by showing a conviction for Treason, Felony, or crimen 
falsi. This is not Treason, plainly. Nor is it the crimen 
falsi; on principle, or by authority. 
That it is not felony at common law, I cite, 4 Black. Com. 38. TRIAL OF ABNER ROGERS, JR. 
137 
Nor by our Statutes ; Stat. 1804, c. 143, and Rev. Stat. 
c. 126, § 21. The indictment itself, contains no aver- 
ment of the act being a felonious one. (This was admit- 
ted by the state’s attorney, who contended however, that 
the Revised Statutes had dispensed with the necessity of the 
allegation.) 
The Court intimated that if the acts amounted to a felony, 
it might be sufficient, without using the term feloniously. 
Bemis. The authorities have never gone so far elsewhere ; 
and in our own state, the case of Commonwealth v. Squire, 1 
Met. 258, seems strongly to imply that the distinction between 
felonies and misdemeanors, as to the mode of averment, is 
yet maintained here. 
Parker. Moral turpitude is the criterion of disqualifica- 
tion ; and this offence has all the characteristics in that re- 
gard, which most others have, which are reckoned infamous 
among us. 
The Court, per Shaw, C. J., after some deliberation, re- 
marked that the absence of authority on this point, was a 
little surprising, though they had always entertained the 
belief that it was considered a disqualifying offence. But 
regarding either the nature and aggravation of the offence, 
or its moral turpitude and its statute punishment, they were 
of opinion it rendered a convict infamous. 
The witness was accordingly rejected. 
Louis Dwight, called and sworn. I am Secretary of 
the Prison Discipline Society, and have been such about 
eighteen years. My chief business has been to investigate 
the condition of prisons, and prisoners. In connection with 
the same subject, I have given my attention to lunatic prison- 
ers ; have also given attention to the condition of the insane, 
in insane-asylums, and so have had an opportunity to acquaint 
myself with the characteristics of insanity ; have probably 
seen from two thousand to four thousand cases of insanity. 138 
TRIAL OF ABNER ROGERS, JR. 
I saw the prisoner on Friday, the day after the homicide. 
Very early in the morning of that day, I received a note 
from Mr. Minot, the late chairman of the board of inspectors, 
expressing how much he was shocked at the assassination of 
Mr. Lincoln, the warden of the state-prison, which was the 
first knowledge I had of it. I called on him, and he suggested 
that an effort should be made in behalf of his wife and child- 
ren. I undertook it, and went over in the forenoon to the 
prison, to ascertain the condition in which Mr. Lincoln had 
left his family. When there, I asked to see the prisoner: had 
never known him before. The deputy-warden readily assent- 
ed, and I was conducted to a cell in the wing of the old prison. 
There I saw the prisoner ; his appearance was unlike what I 
expected to see in the state-prison at Charlestown. His beard 
was long, as though he had been unshaved for several days ; 
his hair uncombed, and his whole dress slovenly and disor- 
dered. He was told to come out in an authoritative manner, 
such as might be expected from the officer, on such an occa- 
sion. I did not much blame him. I felt myself, as might 
naturally be supposed I should feel towards one who haft 
committed such an outrage. But, on observing the man, his 
whole aspect, air and manner, conveyed to my mind, the idea 
of a lunatic. He came slowly out of the cell, and sat down 
on a bench at the west end of the arch. I asked him why he 
killed Mr. Lincoln. He said he had not killed him ; he was 
not dead ; he had seen him that morning, with one or two 
others. I asked him if he had any grudge against Mr. Lin- 
coln, on account of his additional sentence, as a second comer. 
He said he hadn’t any ; that his sentence was lighter than he 
expected, for he hadn’t got but six months, and he expected 
a year. He went on, then, in regard to his troubles. He 
spoke of the popo-game, of which I had never heard, and 
knew nothing ; of the voices telling him to “ tread up,” 
“ tread up.” He mentioned the voices of Cole, Hutchinson TRIAL OF ABNER ROGERS, JR. 
139 
and Robinson ; and said, they said a man never lived more 
than three days under it. They said, “ Rogers is a damned 
fool ” ! “ Rogers is a damned fool ” ! “ He will never go out 
till he goes out feet first.” He spoke of sweating it off by 
holding his head down. 
I tried in various ways to see what I could make of the 
case, and used all the ingenuity I possessed in regard to in- 
sanity. I felt that I was talking with a man who had mur- 
dered my friend, and I taxed my faculties to understand the 
state of his mind. He spoke constantly of the popo-game, 
and put his hands to his head complaining of a pain there. I 
asked him to look me in the eye. I did this, because I had 
tried the same thing with Clarke, who feigned insanity suc- 
cessfully for three years in the state-prison. Rogers’s eye, I 
should say, was dull and bewildered, rather than wild. He 
had complained of loss of sleep, and said he hadn’t had any 
for twelve nights. Rogers looked me directly in the eye, and 
went on talking as before. When Clarke did this, I always 
suspected his simulation. Rogers’s look was as if his thoughts 
accompanied his words ; he seemed to feel everything he said. 
His conversation was very rapid, and he repeated some words 
and phrases frequently. My interview with him lasted from 
half an hour to an hour. I offered to pray with him, and he 
consented to it, and kept perfect silence. I should think it 
wras this morning that he spoke of his father, as a good man, 
as a man of prayer. I left him, and went about my errand 
of collecting subscriptions for Mr. Lincoln’s family. 
Saturday morning, the 17th, I went over very early to see 
Doctor Bell, at the McLean Asylum, in Somerville. I asked 
the doctor to accompany me to the prison and see Rogers. 
He was reluctant to go ; but I thought it important that he 
should, and urged him. I had previously received a note 
from him regarding the shower-bath, as used in the prison, 
for a punishment. I knew it had been given up at the Asy- 140 
TRIAL OF ABNER ROGERS, JR. 
lum ; but I had rather a favorable opinion of it, myself, and 
this gave an interest to my inquiries about Rogers. I did not 
express any opinion to Doctor Bell, about Rogers’s insanity. 
If I said anything at all, it was that he was insane, or pretend- 
ed to be. But I was careful to leave the doctor to his own 
examination, if he should make any, and to judge for himself. 
He finally consented to go if I would wait and breakfast with 
him. We went together and asked to see the prisoner. When 
wc approached his cell, he uttered a loud outcry as of dis- 
tress and alarm ; but I couldn’t distinguish what he said. 
Rogers was told to come out : he obeyed and went to the 
west end of the arch. He told his story ; Doctor Bell con- 
ducting the conversation for the most part, while I stood by 
and listened. It was much the same as before, about the 
p°p°-game. I undertook to find out what he meant by popo, 
but could get nothing intelligible. So far as I heard him at 
this time, his conversation related to this game being practised 
upon him, and that it would kill him in three days. It was 
much the same as before. He said he had had a little sleep 
and felt better. 
On Sabbath morning I visited him again. I had asked Mr. 
Adan, (one of the former inspectors,) to accompany me, but 
he declined, saying he couldn’t see the man. Accordingly, I 
went alone. I again talked with him about Mr. Lincoln’s 
being dead, and when he expressed a doubt of its being so, I 
asked him if*he would like to see his body. He said he 
should, though fhe didn’t seem to believe that he had killed 
him. I asked Mr. Payne, if he could see the body, and he 
said he thought he would be permitted to, when the funeral 
services were performed. Then, for the first time I witnessed 
very great emotion on the part of Rogers. The blood rushed 
to his face and head, and he seemed convulsed in every mus- 
cle. At the same time he uttered a most maniacal and pitiful 
cry. Apparently it was one he could not control or suppress. TRIAL OF ABNER ROGERS, JR. 
141 
I was desirous of witnessing the effect which the sight of the 
dead body would have upon him, and went over for that ex- 
press purpose. I missed seeing it, however, as the body was 
brought out while I was performing the services in the chapel. 
I went again to see him, that same afternoon, about six 
o’clock; had some conversation with him. He ran on in 
nearly the same strain as before, though he said he felt better, 
and had got some sleep. Once in the course of my inter- 
views with him, (I think, however, it was on Friday,) I asked 
him about the shower-bath as a punishment. He said he 
didn’t dread it much; should as lief have it as one stripe. 
He made no complaint about the treatment he had received, 
nor against the warden or any other officer of the prison. He 
spoke of a whirl in his head, and of hearing people go by his 
cell. He spoke of the warden as a good man, and- of his 
having no enmity against him nor any body else. After the 
cry which he uttered on Sunday morning, he spoke of the 
homicide as being a dreadful thing to Mr. Lincoln’s family 
and friends, and to his own relatives, and of its being dread- 
ful that it should be done by a young man like himself just 
coming out of prison. This was after I had told him Mr. 
Lincoln was dead. 
On Friday morning I noticed that he ate ravenously. At 
another time when I saw him eating, I observed him smelling 
of his food, and at the same time declaring that there was 
checkerberry in it. This was the first I had heard of this 
term checkerberry. On Friday morning, I think, I pointed 
to the blood upon his hands, but it didn’t seem to produce 
any effect upon him. I combed his head, and found a small 
sore upon it. I did not see him on Monday, but saw him on 
Tuesday and Wednesday, and afterwards on the 2d of July, 
at the Leverett street jail. I was then struck with the change. 
His eye was brighter and more intelligent and clear. His 
skin looked better. I asked him if he heard any voices there ; 142 
TRIAL OF ABNER ROGERS, JR. 
and he said he thought he had heard some whispering by his 
window once, but wasn’t certain. I asked him if he heard any 
voices about popo, and he said, no. I drew his attention in 
these interviews to his story, and he repeated it in substan- 
tially the same manner, and to the same effect. I have al- 
ways found him very docile, frank and direct. He has an- 
swered my questions, apparently without reserve or conceal- 
ment. 
Cross-examined. I have not come into personal contact 
with many cases of simulated insanity, though I am aware it 
is a constant source of difficulty in penitentiaries. I went to 
Dr. Bell instead of Dr. Walker, the regular physician of the 
prison, because he was a personal friend, and because I 
thought him at the head of his profession. I had great con- 
fidence in his skill and judgment in matters of insanity. I do 
not know that it occurred to me to go to Dr. Walker; I had 
been so in the habit of consulting Dr. Bell in matters of in- 
sanity that I went to him as the first person, from force of 
habit. I had been told that the officers had had it enjoined 
upon them not to speak of Rogers’s case. I think it was 
Saturday morning that I first noticed his beginning to look 
better. There was a door at the entrance of the arch, the 
unlocking of which might have been heard by one awake, in 
Rogers’s cell. 
(In answer to a question from a juror.) I never thought 
Clark’s case one of real insanity ; have never been deceived, 
to my knowledge, in any other such case. 
The counsel for the prisoner now proceeded to call the 
testimony relating to the hereditary insanity in the family of 
the prisoner, and to his own early history. 
Abner Rogers, called and sworn. I am father of the pris- 
oner. Abner was thirty years old in December last. When 
he was an infant, at his birth, he was very small and it was 
not expected that he would live. The night after he was TRIAL OF ABNER ROGERS, JR. 
143 
born he went into a fit, and we thought that he was dead. I 
went to some of the neighbors and told them of it, but on 
my return, the nurse said that she saw signs of life, and he 
finally came to. He was ever after a sickly child and used to 
have fits, which always came on about the same hour of the 
night. These fits continued six or seven years. After they 
left him he used to have turns of groaning at about the same 
hour. Sometimes they were so bad that we used to go to 
him. As he grew up he outgrew them somewhat, but I have 
always heard something similar when he has been at home. 
He remained at home till he was seven or eight years old, and 
occasionally lived with me afterwards. He never received 
much, if any, education. I lived in Newbury, the west part 
of the town, away from the road, and there was but little op- 
portunity for him to get any schooling. While he was with 
me he could not read or write; cannot say whether he can, 
now. I had an older son, Beniah, who was deficient in un- 
derstanding. As he grew up we discovered his want of 
sense, and were obliged to keep a careful watch over him to 
prevent his doing mischief, particularly to small children. 
When Abner was three years old, one day that his mother 
had gone out, she heard the child scream; and on running in, 
found Beniah with a piece of a scythe which was stuck 
in a handle, for the purpose of reaping corn, striking Abner 
on the head and face. He made two wounds, one cutting 
through the nose, and the other not so deep on the forehead. 
Beniah was then about seven. We used to confine him in a 
particular chair, and in hot weather, tie him under a tree. 
We did this to him till after he was, probably, thirty years old. 
He used to be mischievous, also, in the way of breaking ves- 
sels. Once he threw a stone at his mother, and hit her on 
the head and hurt her badly. 
My sister was crazy at two different times. She thought 
she had committed the unpardonable sin. She was twice 144 
TRIAL OF ABNER ROGERS, JR. 
affected so. The first time being deranged from two to four 
months ; the last time not so long. 
Question by Counsel for defendant. Can you name 
others of your own, or wife’s family, who were reputed to be 
deranged ? (Objected to, by state’s attorney. Ruled by the 
court, that the question may be put ; reputation of an ances- 
tor’s being deranged, coming from those of the same family, 
being analogous to proof of pedigree in the same manner.) 
Abner’s great uncle and aunt by his mother’s side were both 
reputed crazy. I have a brother who often tells me that he 
hears the noise of crickets in his head. My wife has a 
brother who has had bad fits, and who appears deranged be- 
fore and after them ; they have to watch him continually. 
Abner was a nervous, sickly child, and required more atten- 
tion than my other children. 
Cross-examined. Abner left me and went to live with his 
brother-in-law, when he was about eight years of age : he 
lived in the same town. He stayed with him two or three 
years ; and then lived about, at different places, working at 
shoe making. He was a slim, sickly boy from seven to 
twelve, but I don’t recollect his having any serious illness. 
I recollect he was once attended by Doctor Robins, of West 
Newbury. He was not an idler, but generally about some- 
thing ; whether for good or for bad, when out of my sight I 
can’t say. He worked some at shoemaking, but I am unable 
to say whether he could finish a pair of shoes, himself. Don’t 
know that he has ever set up business for himself. He has 
never been treated as an insane person, nor confined as such, 
to my knowledge. I have received letters from him, while at 
the state-prison, but believe them to have been written by the 
chaplain. I don’t know that he ever wrent to school. I have 
had ten children : none of them were insane, but Beniah. 
The sister with whom he lived is a very nervous and sickly 
woman. All my children are ailing in body. Stephen lias TRIAL OF ABNER ROGERS, JR. 
145 
had fits ; he is now so weak as to be unable to be present at 
this trial. My own mother was troubled with hysteric fits ; 
and my wife’s mother died in a fit at my house. I am 64 
years of age, myself. 
Eliza Pilsbury, called and sworn. I am cousin, by 
marriage, to the prisoner ; am wife of Solomon Pilsbury ; 
have always lived within a mile of Abner’s father ; have 
known Abner, more or less, 14 years. He used to board 
with us when I was the wife of Benjamin Kimball, now dead, 
who was also Abner’s cousin : he boarded with us two or 
three months; this was after he came out of prison the first 
time. I think I recollect his having a strange turn, then. 
One night when he was sleeping in the bed-room with my 
children, he called to my husband to get up and come into 
the room. He thought there was some one taking the child 
from the bed. My husband got up and went into the room 
and found nothing the matter, and told him he thought he 
had been dreaming. This was at twelve o’clock. Abner got 
up and came into our room, and walked the room the rest of 
the night. As I saw him by the light of the lamp, he looked 
wild and strange ; he appeared so next morning. I don’t 
think he had been drinking : he had not been away that day. 
I have heard him groan, nights ; and my husband has been to 
him a good many times. He always looked wild after waking 
up from these turns. 
Cross-examined. I don’t know that he ever took medicine 
for these turns, or called in a doctor. 
Jonathan Randall, called and sworn. I reside in King- 
ston, New Hampshire, 15 or 16 miles from Newbury. My 
business is that of a farmer and a shoemaker. I know the 
defendant ; have known him between 10 and 12 years. He 
came to board with me at Nottingham, in 1831, before he 
went to prison the first time, and boarded with me six weeks. 
He had strange turns at that time. He used to walk his cham- 146 
TRIAL OF ABNER ROGERS, JR. 
ber, nights, after we went to bed, and I would sometimes get 
up and go up to find out what was the matter. He never 
would give me much, if any, answer ; and sometimes would 
keep on walking nearly all night. The next day he would 
appear dull, and as if in a deep study, walking about with his 
head down ; he had not been drinking, to my knowledge. 
The last time he came to my house, (after he had been in 
prison,) he stayed through the day, and at night went to bed, 
as I supposed. About midnight, I heard a noise in his room 
and got up and went to it: I found him standing up in a kind 
of reverie ; told him to go to bed. He made no reply, and 
an hour afterwards I heard him walking again : next morn- 
ing I heard him go out of his room, and went in and found 
he had not been a-bed. By advice of my wife, I followed 
him down to the square, and found him at the tavern. I 
asked him to go home to breakfast with me ; he did so, but 
ate nothing and appeared very wild. 
Cross-examined. He came to stay with me at this time 
for his health ; he complained of a pain in his head. He did 
not frequent the tavern, or have companions : his talk was 
sometimes wild. 
Herman D. Rogers, called and sworn. I live in New- 
bury, within a mile of Rogers, senior ; am cousin of Abner, jr. 
He has worked for me, at times, shoemaking. I noticed 
something strange in his appearance once in Oct. 1836, after 
he had been to prison the first time. I was going home late 
one night, (perhaps as late as II o’clock,) and found a person 
lying by the road-side, nearly prostrate, with his face down- 
wards. I came up to him and found it was Abner. I took 
hold of him and raised him up. He attempted to run, and 
ran a short distance to the passage-way leading to the house, 
which was stopped by a board put across it. He ran against 
this board, and it threw him down. I came up and asked 
him what was the matter. He said, not much; he had a head TRIAL OF ABNER ROGERS, JR. 
147 
ache. I urged him to go into the house. My brother helped 
carry him in. My wife asked, who it was, and what was the 
matter; and if it were somebody who was drunk. I told her 
it was Abner Rogers, but that he wasn’t drunk. He was not 
inclined to make much conversation for some time. After he 
had been sitting in the chair some time, he got up and went 
to the glass and fixed his dress. He said to me, “ Herman, 
you can take me to Ipswich, if you wish.” I told him that I 
had no such idea, that I only wished to take him in, and take 
care of him. He did not seem inclined to make much con- 
versation. After sitting about an hour he seemed better. He 
then said he would go home, unless I got him there to carry 
him to Ipswich. I told him I didn’t wish him to go any 
where. He said he would go home, (to his father’s, as I sup- 
posed,) and left the house. I saw him about a week after- 
wards, and he made an apology for having given me so much 
trouble. He said he could not tell how long he had been lay- 
ing by the road-side, when I found him, but he remembered 
lying down with a pain in his head; from a bad cold, he sup- 
posed. I didn’t observe any appearance of his having been 
drinking, from his breath or otherwise, and don’t think he was 
in the habit of drinking. My wife observed that she thought 
he couldn’t be drunk. I thought his general appearance was 
singular, and different from ordinary. 
Cross-examined. Abner was not in my employ at this 
time. He worked for me before he went to prison the first 
time. I can’t tell how long he had been lying by the road- 
side, but I had passed that way two hours before, and he was 
not there, then. He could make a pair of shoes, but was not 
a good workman. He could not write, I think, but could 
read somewhat. Ipswich was the place of his first trial. 
Mr. Bemis now stated to the court that he was prepared to 
show, if the evidence were competent, that Washington, to 
whose case the defendant’s had been likened by the warden, 148 
TRIAL OF ABNER ROGERS, JR. 
was really insane and was now confined as such. The court, 
per Shaw, C. J., deemed the testimony irrelevant. Bigelow. 
We offer the evidence also to the point of impeaching Dr. 
Walker’s skill, under whose treatment the case passed. But 
by the court. “ You cannot impeach a witness’s skill by proof 
of particular instances of unskilfulness.” The counsel then 
stated that they were prepared to show that Mr. Lincoln’s 
fixed maxim in regard to insanity, was, to admit no man to 
be deranged, through fear of its impairing the discipline of the 
prison, and that therefore his judgment in regard to Rogers’s 
simulation was of no account. But the court also deemed 
this to be collateral and immaterial. The defendant’s coun- 
sel then proceeded to call their other witnesses. 
Henry K. Frothingham, recalled. By the records of 
the prison, Rogers’s punishments previous to those already 
read in answer to the questions by Mr. Parker, were; Oct. 
5th, 1840, Showered, two barrels, for improper conduct; 
Dec. 9th, 1840, Showered, one barrel of water, for talking ; 
Jan. 2d, 1842, One day’s solitary, for misconduct in room; 
Jan. 10th, 1842, One day’s solitary, for disorderly conduct; 
Jan. 29th, 1843, Same for same; March 9th, 1843, One 
barrel of water for disorderly conduct. And these are the 
only punishments recorded against him during these periods. 
Warren B. Parker, recalled. I have no recollection of 
any conversation which Tulley said he had with me about 
threats made by Rogers. I don’t know that 1 should recol- 
lect it if there had been such a conversation, as such threats 
are quite common and I make a practice of not noticing 
them. 
Henry Rocheford, called and sworn. (Objected to, as 
having been convicted of petty larceny in the police court of 
the city of Boston. Pardon produced by witness.) I live 
with Mr. Parker, the restorator in Court Square, close by. 
Last July I had charge of the Hospital at the House of Cor- TRIAL OF ABNER ROGERS, JR. 
149 
rection in South Boston, and there knew Joseph Tulley. I 
had considerable conversation with him about his testifying 
on the former trial, both before and after he went over to 
court. He told me he never heard Rogers say any such 
thing as he testified to, on the trial. He told me that he 
never heard Rogers make any threats more than any. body 
else. He said that he was sorry he had got to testify to that 
which wasn’t true; but that he had told the story to Capt. 
Robbins, the superintendent, and it wouldn’t do for him not 
to testify the same thing again. 
Cross-examined. I left the House of Correction two and 
a half months ago. I had no conversation with Tulley, till 
after he came from court. He was asked how much he 
would get for his fees ; and he said, enough to set him up in 
business as a barber. 
Luther V. Bell, called and sworn. I am superintendent 
and physician of the McLean Asylum; have been such seven 
years and upwards. The Asylum is situated about half a 
mile from the prison, in the new town of Somerville. I have 
had a good deal of experience in cases of insanity, having 
had upwards of one thousand patients under my charge at the 
Hospital, and having devoted myself for several years previous, 
to the study of Insanity. 
I went to see the prisoner, Rogers, in company with Mr. 
Dwight on Saturday morning, the 17th, at an early hour; 
went by his invitation. 1 had no previous knowledge of the 
defendant. After some delay at the prison, we were invited 
by the deputy-warden and chaplain to go to his cell. The 
deputy-warden unlocked the door, and we heard a moment- 
ary outcry, indicative of fear and affright. It seemed like 
that of a person just roused from sleep, and I satisfied myself 
that this was the case. Rogers was then taken to his cell, to 
the end of the passage-way, and sat down on a seat, with us 
around him. The conversation at first was between him and 150 
TRIAL OF ABNER ROGERS, JR. 
Mr. Curtis, about sending for his father. His manner during 
this, was calm, composed, and natural. Mr. Dwight, I think, 
then asked him why he killed Mr. Lincoln ? Upon this sub- 
ject, he began at once a strain of incoherent and wild remarks, 
showing plainly, that his was a case of real, or highly sim- 
ulated, insanity. These, he continued, until I designedly turn- 
ed the conversation to other subjects. His detail related to 
certain voices which he had heard at various times, and from 
several of his fellow convicts, whom he called Jo Hutchinson, 
Sam Robinson, Bray, and Cole; which conversation announ- 
ced to him, tftat he was to be the object of the inju- 
rious treatment or influences of the warden. The warden 
had learned from Mr. Curtis, (the chaplain,) as I gathered 
it, a knowledge of the popo-game, which Mr. Curtis had 
himself brought from the Auburn prison, and this was to be 
practised upon him. The warden was also going to make 
another injurious attempt upon him, by putting checkerberry 
into his food. I asked him to explain what he meant by this 
popo-game. He replied that they drove you round and round 
your cell; that he had stood it three nights, but that it would 
be impossible for him to hold out twenty-four hours longer. 
I asked him, what he meant by clieckerherry ? whether the 
common evergreen, that grows in the woods ? He said 
that it wasn’t that, but something that set your brain in a 
whirl, in a moment. He said that these voices came to him, 
principally, from the top of his cell; that some of them were 
addressed to him, others were about him ; some of them were 
in the language of reproach ; as, “ damn you, they’ll kill 
youothers were commiserative ; as, “ Rogers, you have 
got to die ”—“ you’ll never go out of the prison until you are 
carried out feet foremost.” When the conversation was 
turned to other subjects, he conversed naturally in relation to 
them, showing no disposition to recur to these troubles. I 
counted his pulse twice at this interview, and found it over TRIAL OF ABNER ROGERS, JR. 
151 
one hundred at each time. His tongue was slightly coated, 
his head cool, face shrunken, and no intolerance of light in 
the somewhat dark place where we were. When he began 
on the popo-game, and the injuries practised on him, his man- 
ner was exceedingly rapid, repeating sometimes three or 
four times with great volubility and rapidity, such phrases as, 
“ tread up ” — “ tread up ” — “ d#—n you, they’ll kill you 
this, spoken with a loud voice, and great intensity. After an 
interview of about an hour and a quarter, I left him. Mr. Cur- 
tis left us after a few minutes. I think Mr. Payne remained 
the whole time, and invited me to see him again. 
I saw him again, the Tuesday following, the 20th. His 
general manner and appearance were about the same. But 
there was a very considerable difference in his manner of 
treating these imaginary communications. His conversation 
at first was natural and calm. When it turned on the sub- 
ject of the game, he resumed his old rapidity, but every now 
and then, threw in a sentence like this, “ Well now ; I sup- 
pose there wasn’t anything in all this or “ the devil had put 
these things into my imagination.” I felt his pulse twice at 
this interview, and found it about one hundred. The general 
tenor of his communication was the same in substance as be- 
fore ; but there were many new details and little circumstan- 
ces added. On turning the conversation to other points, e. g. 
to his past history, he talked freely, and with propriety, mak- 
ing no allusion to the subject of the voices, which wasn’t 
again referred to, at this interview. Mr. Fogg, the assistant, 
was present, but kept at a distance. 
Friday of the same week, the 23d, I saw him again ; and 
let him know who I was, and the object of my visits; that I 
came to ascertain the state of his mind. I told him this, in 
order to see if he would affect any different symptoms, or ex- 
aggerate those which he had already shown. His conversa- 
tion was essentially the same as before: not introducing the 152 
TRIAL OF ABNER ROGERS, JR. 
subject of these voices himself, and explaining them as having 
been merely his own imaginations, or put into his head by the 
devil. I tried to induce him to treat them as realities, by 
speaking of them as such, myself: but could not succeed. I 
would say to him, “ when you heard Cole say ” thus and so. 
He would reply, “ I don’t suppose there was anything at all 
in that.” Perhaps a single observation, might be considered 
an exception to this, when he said that he still thought his life 
in danger. His pulse at this time was one hundred. 
I saw him again, the day after his arraignment, at the Lev- 
erett street jail; and at this time there was no difference in 
his manner of treating the subject. He spoke of it, only 
when questioned about it. 
I saw him again at the jail, a fortnight before the first trial. 
I designedly made no allusion to his hallucinations, and he 
did not refer to them himself. 
At the first interview I had with him, he gave an account 
of trying to sweat the checkerberry out of him by hanging 
his head over the bed ; and of his distress in finding the blood 
rushing up from his heart to his head. The three first inter- 
views were from an hour and a quarter, to an hour and a half, 
each. The two last, less protracted. I made an attempt at 
one of the interviews, as I have stated before, to throw him off 
his guard by letting him know who I was. He then said, I 
thought you had something to do with the Connecticut State 
prison. I suppose he thought I was Mr. Pillsbury, the war- 
den of that prison, who was there Saturday. 
I had no specific plan of inquiry, but took a course of ex- 
amination to obtain the manifestions as they might occur, and 
then followed them as judgment dictated. On Saturday, he 
said if he had killed Mr. Lincoln, as Mr. Fogg said he had, it 
was because this popo-game had been played upon him. He 
didn’t, in any instance, recur to his hallucinations unless he 
was led to them; and then he would go on until the conver- TRIAL OF ABNER ROGERS, JR. 
153 
sation was turned. On Saturday morning, in reply to a 
question from some one, “ how he felt,” he said, “better”— 
that he had got some sleep. He spoke of the voices for the 
most part as coming from the upper part of his cell. Once 
only, as he was going into the blacksmith shop to heat his 
iron, he heard, “ it will kill you — damn you, it will kill you.” 
On Tuesday morning, I think, he expressed himself con- 
vinced that the warden was dead. 
I have attended the trial and heard all the evidence that 
has been given in this case. 
As to my own opinion. At the time of commencing these 
investigations, and until I came into court, I knew nothing of 
the opinions of others. I had no other impression upon my 
mind at the time of going to the prison, than that the act 
was a wilful murder. 
Judging from my observations alone, I have come to the 
conclusion that the case was one of real, and not simulated 
insanity; that the defendant was laboring under that species 
of insanity, which is accompanied with a belief of hearing false 
voices or hallucinations. The great mass of evidence which 
I have since heard, supposing it to be true, corroborates my first 
opinion ; and I have heard but few things inconsistent with it. 
I should have wanted no further evidence to strengthen my 
first impressions. 
My reasons for the opinion I have just given, are: That 
the form of insanity, with which this individual appeared to 
be afflicted, is one not generally recognized as insanity in the 
world at large, and would hardly be attempted by one com- 
petent to feign it, so likely would it be to fall short of its ob- 
ject, viz.: of convincing people that a person is insane who 
only hears false voices. Yet the form of insanity is one well 
known and understood, and not unfrequently met with, by 
those who have the care of the insane: That the delineation 154 
TRIAL OF ABNER ROGERS, JR. 
of it by this man, if it were feigned, was consistent, exactly 
true to nature, and not mingled with any symptoms which do 
not properly belong to this type of disease. The communi- 
cations reached him solely through one of the senses: that 
of hearing ; and he never pretended that any other was af- 
fected. Were a man to feign insanity, the chances would be 
infinitely greater that he would feign some of the more palpa- 
ble forms, as raving mania, or dementia, than this. The pro- 
babilities are, that a man, in such a case, would be unwilling 
to have a person, who he knew had come to examine him, go 
away without showing him some extravagance or striking in- 
dication of derangement. He would certainly have made a 
reference to his complaint before him. The capacity of the 
individual in the present case is hardly up to the average 
of intelligence; and in view of his having been so long in 
prison, and of his probable opportunities for seeing insanity 
elsewhere, the improbability is very great of his attempting a 
form of disease so delicate, and requiring so much knowledge 
to meet its exact features. 
I considered it a case of disease at the time I saw him. 
My belief is that the same delusion had existed for some days 
previous. It would seem sufficiently obvious that one labor- 
ing under such apprehensions of danger and suffering, would 
be impelled to acts of violence in supposed self-defence. 
Patients subject to hallucinations are very liable to paroxysms 
of violence. The probabilities of a lucid interval in this case, 
between the time of the occurrence of the facts testified to 
immediately preceding the homicide, and the homicidal act 
itself, are very small. I have never known this form of insan- 
ity simulated. I should consider that if an outbreak had oc- 
curred under the circumstances here stated, it would evidence 
an uncontrollable impulse to violence. 
(In reply to a question, “ whether some external, exciting 
cause, as the appearance of a fancied enemy, &c., would not TRIAL OF ABNER ROGERS, JR. 
155 
precipitate a paroxysm ?”) I have supposed that the impulse 
was generally from the internal feeling, rather than the exter- 
nal object. The enemy or object may excite that feeling and 
so produce the outbreak. I should think, as a general thing, 
that hallucinations, by way of hearing false voices, much more 
commonly occurred to the insane, by night, than by day. It 
is a well-settled fact, that after paroxysms of violence, the in- 
sane appear comparatively calm and tranquil. (The follow- 
ing case, illustrative of the last observation, and of the transi- 
tory duration of the disease in some instances, was here given 
by the witness.) I had a case put under my care two or 
three years since, of a young man from Maine, who had killed 
his father in a paroxysm of insanity, supposing he was the 
devil. The young man for a short time previous to the act 
had shown some slight symptoms of depression or mental 
alienation, but nothing of an alarming character. One day 
his father invited him to go out and work at making hay. 
While so engaged, as the father was stooping to go through a 
pair of bars, the son struck him over the head with repeated 
blows of a pitchfork, and killed him. No legal proceedings, 
that I am aware of, were had against him. But being brought 
to the Hospital immediately after, (within a week,) he then 
appeared calm, recognized his delusion, and never showed 
signs of insanity afterwards. He remained with us six 
months, and was discharged as well. 
Self-pollution is considered a great predisposing cause of 
insanity. Causeless suspicions against individuals, the hearing 
false voices, and violent outbreaks, are common symptoms of 
insanity proceeding from this cause. Many of the persons 
so affected have an idea also of being the subject of calumny. 
It was my impression, from what I saw, that self-pollution was 
the exciting cause of disease with the defendant, though I did 
not make inquiry in regard to his habits in that particular. I 
have not known the sense of taste affected in connexion with 156 
TKIAIi OF ABNER ROGERS, JR. 
that of hearing. I do not perceive anything in the nature of the 
punishments in this case, more than any other exciting cause 
of a general character, which would have tended to produce 
an outbreak in the defendant. A course of conduct which is 
soothing and tends to calm the feelings, would tend to allay 
the excitement; the opposite, to aggravate it. 
Almost all authorities are to the point that hereditary insan- 
ity predisposes to the same disease. So do fits, if epileptic. 
My own impression in regard to this case, was, that the 
shock of the homicidal act had thrown the defendant off his 
delusions, and that they would recur in some other manifest- 
ation, though perhaps temporarily concealed. Yet I have 
heard of many cases where the disease was only transitory, 
from Dr. Woodward and others, though I am not familiar 
with cases of such short duration in my own observation. 
A belief in the existence of conspiracies is a frequent symp- 
tom in this form of disease; so, the mistaking the relations of 
persons, as a friend for an enemy, or vice versa. I should 
say that those are most apt to be mistaken in this way, who 
are either almost entire strangers to the insane man, or his 
nearest friends. 
(The Doctor here gave the following case as illustrative of 
the insane man’s belief of fancied injuries and his power of 
concealing his malady from others.) I have a case now un- 
der my care, of a midshipman who, some time in the year 1841, 
sailed from New York to the Brazilian station. He was gone 
six months; from September to March, I think. During 
the passage he was not supposed to be disordered in his 
mind, nor until within a few days of his being sent home, was 
any notice taken of his conduct being strange. While on the 
station in South America, he was put under arrest for some 
insolent words to his officer, and in a moment of irritation, (as 
was supposed,) threw up his commission. Being sent home, 
the commanding officer, or the Secretary of the Navy, retained TRIAL OF ABNER ROGERS, JR. 
157 
his resignation for a month or two, in order to give the young 
man a chance of recalling it, if he were so disposed. But no ap- 
plication being made to that effect, he was formally discharged 
from the service. Some time after, proving to be unequivo- 
cally deranged, his friends thought of making application to 
have his name restored to the list, in order to entitle him to 
half-pay ; and investigated the circumstances of his resigna- 
tion, to see if the act were not void by reason of insanity. 
Examination brought to light a manuscript journal, ivhich he 
had kept from the time of his sailing from New York down 
to the time of his entrance at the Hospital, filled with proofs 
that he had been laboring under hallucinations the whole 
time: That he had heard the voices of the captain and the 
officers and all aboard, insulting him and abusing him with 
the vilest epithets ; that he had struggled against it, and borne 
with it, till, (in his own phrase) forbearance had ceased to be 
a virtue; and being unable to endure it longer, had quitted in 
disgust. This abuse, and the epithets, such as he had written 
down, were of course all imaginary. During all this time, his 
conduct had been so nearly sane, that it had attracted no re- 
mark from his fellow officers. These facts being reported 
to the Navy Department, his commission was restored, and 
he is now on half-pay. He is at present at the Hospital, and 
a hopeless case. 
In cases of outbreak, the impulse is so sudden, that the pa- 
tient is hardly conscious of his acts. It often occurs, that af- 
ter the paroxysm has ceased, the patient has little or no re- 
collection of the act itself, though he remembers pretty cor- 
rectly what preceded, and what followed it. 
The usual pulse of a person in full health is from seventy 
to seventy-five. One hundred, therefore, is a high pulse, and 
would indicate that the system was laboring under some dis- 
ease. I do not consider it, of itself, a proof of the existence 
of insanity in the defendant, but one, among other circum- 158 
TRIAL OF ABNER ROGERS, JR. 
stances, indicating it. Apprehension of evil, and uneasiness, 
are types of the form of insanity which I consider to exist in 
this case. Sleeplessness is another attendant symptom, which 
might be expected. 
Cross-examined. Rogers’s answer to Mr. Dwight on Sat- 
urday morning, was, that if he had killed Mr. Lincoln, as they 
said he had, it was because they played the popo-gaine on 
him. His ideas of time were very much confused. In the 
latter interviews there was an utter confusion of dates. When 
he spoke of the voices coming from Cole, &c., he did not say 
that he saw the persons themselves. On Friday morning he 
gave me to understand that he was right, and recognized his 
past delusions, as such ; though he made some exceptions. I 
have not had much familiarity with cases of simulated insanity. 
The rules of the Asylum are so framed as to prevent the ad- 
mission of fictitious cases. 
I consider that insane persons generally know the distinc- 
tion between right and wrong. They readily submit to disci- 
pline, and are operated upon by motives of hope or fear. 
When the paroxysm of this form of insanity operates, its 
effect, in my opinion, is sufficient to overwhelm reason and 
motive, and for the time being, to make the person like a rav- 
ing maniac. The insane impulse differs from that of anger, 
in this respect: that, if equal in intensity in both cases, the 
angry man can bring reason and motive to bear as antagoniz- 
ing principles, which the insane cannot. I suppose that an 
imaginary injury would have more effect upon a diseased 
mind, than a real one of the same kind, upon a sound mind. 
The impulse, in the former case, generally expends itself in a 
single act. If an insane man sees a face at the window, he 
breaks it out, at once. The man of sound mind reflects 
whether there is no other way of reaching the object, without 
doing intermediate injury. 
I should not think Mr. Dwight’s statement of the maniacal 159 
TRIAL OF ABNER ROGERS, JR. 
appearance of Rogers at the first interview, if his appearance 
were rightly apprehended by that gentleman, entirely in keep- 
ing with ihe other symptoms in the case. 
I made inquiry after the physician of the prison, Dr. 
Walker, the first morning I went there. Afterwards, I did 
not think of it. The prison is a public institution, and I saw 
no reason why I should not make a visit for the purpose of 
professional examination. 
Mr. Bemis here proposed to ask the witness a question as 
to the authority of some of the medical citations which had 
been made. 
By the Court. So many treatises and dissertations on this 
subject of insanity, have lately appeared, that the court have 
not had time to examine them, and decide upon their juridi- 
cal authority. They hope hereafter to be able to name the 
treatises to which they may give sanction. But as a large 
number of works have been cited in the present case, with- 
out objection from either side, and some of them of very re- 
cent appearance, we think proper to permit the inquiry. 
(The question being only put in regard to the two treatises in 
French, from which the largest quotations had been made) — 
I esteem Esquirol and Marc as writers of the highest author- 
ity, on matters of insanity : the former, on its physical diag- 
nosis ; the latter, on its connection with jurisprudence. 
(In answer to a question from a juror, whether the Doctor 
recognized an essential distinction between insane and sane 
people, or whether he did not consider all persons more or 
less insane) — I am unable to slate any definition which shall 
mark the distinction between a state of sanity and that of in- 
sanity. I think no palpable line can be drawm between the 
point where sanity ceases, and that where insanity begins ; but 
that it depends upon the circumstances of each case, to say 
whether one is of sound mind or not. Yet I regard the dis- 
tinction between those generally considered and treated as in- 160 
TRIAL OF ABNER ROGERS, JR. 
sane, and those commonly esteemed of sound mind, as suffi- 
ciently obvious and practical. 
(In answer to a question from the counsel for the defendant) 
— I consider the present, as a case of positive and decided 
disease. 
Samuel B. Woodward, called and sworn. I am superin- 
tendent of the State Lunatic Hospital at Worcester, and have 
been so upwards of eleven years ; for ten years previous to 
taking charge of the State Hospital, was visiting-physician 
and director of the Lunatic Retreat of Hartford ; and for 
six years, was physician of the Connecticut State Prison, at 
Weathersfield. In the course of my experience, I have had 
upwards of two thousand cases of insanity, more or less, under 
my charge, and have attended many others, besides. 
I have attended during this trial, and heard all, or nearly 
all, the testimony which has been given. Taking the facts 
testified to, to be true, I am of opinion that the prisoner was 
insane at the time of the homicide. I think his case would 
generally be considered one of monomania arising from hal- 
lucinations. 
My reasons for this opinion are, that, in the first place, the 
form of the insanity is one very difficult of simulation, and but 
little known in the community. Then, as shown in the pris- 
oner’s symptoms, was very coincident in all its bearings with 
the cases which we have; very much so. All the false im- 
pressions seem to have come from one, or at most, from two 
senses ; and nothing in the trial has shown any other source. 
I have never heard or known of this form of insanity be- 
ing simulated ; have had considerable experience in simulated 
insanity, at the Connecticut State Prison, and elsewhere. 
The calmness of the defendant after the act, coincides with 
common experience. The outbreak of an insane person seems 
a safety-valve by which to let off his accumulated excitement. 
As to the shortness of duration of the attack. The out- TRIAL OF ABNER ROGERS, JR. 
161 
break, or apparent commencement of the disorder, is fre- 
quently abrupt and instantaneous. The other faculties of the 
mind than those affected, may remain comparatively vigorous. 
The case of Titcomb, (reported 10th An. Rep. p. 86,) illus- 
trates this. There, the insane man showed the greatest cunning 
in concealing his crime. (The case was given at length by Dr. 
Woodward.) Cases of as short duration as the present, are 
not infrequent, though they can hardly be called common. 
A patient was brought to the Hospital to consult me, some 
weeks ago, who was possessed with a notion that the surgeons 
were in quest of his body for the purpose of dissection. None 
of his relatives, except his brother, whom he made his confi- 
dant, had ever discovered that anything was the matter with 
him. And when I first saw him in company with his brother, 
I was in doubt myself, which of the two had come as a sub- 
ject for medical treatment. After a while, in the course of 
the conversation, he stopped, and asked me “ if I thought he 
was a pig.” A regular courseof treatment relieved him of his 
difficulties, and he is now nearly or quite recovered. 
In Davis's case, mentioned p. 88 of my report, the insan- 
ity passed off while he was in confinement in jail, and before 
he took his trial. 
So, the memory of what occurs during a paroxysm, is fre- 
quently obliterated. (Repeats the case of the mother, who 
nearly killed her two children to save them from a drunken 
father, as reported, p. 93, of his report.) In this case, the 
subject had lost all recollection of the insane act, until re- 
proached with it, by some person calling her a murderer. 
Then a painful dawning of memory, accompanied with an 
apprehension of some greater enormity than she had actually 
committed, was excited. 
It is not uncommon for the insane, or those whose delusion 
consists in hearing false voices, to have a passing consciousness 
of their delusion, and yet immediately after, recur to the same 162 
TRIAL OF ABNER ROGERS, JR. 
delusion. Thus, we have a patient with us, who, for many 
years, has fancied that he can hear persons saying of him, “ T. 
is going to take a pilland yet he can easily be reasoned 
out of it, and will take a pill when necessary, though the next 
day he will suffer the same imaginary trouble as before. 
I should say that an imaginary wrong, or other exciting 
cause of an insane impulse, would lead to a more violent act, 
than the same kind of motive or feeling operating upon a 
sane man. The difference seems to be in the absence of an- 
tagonizing motives or principles of conduct. Thus, we had 
a patient, a lady, who fancied she heard the judges telling her 
she must strip herself naked to save some person’s life. And 
she would immediately tear off,every particle of clothing upon 
hearing the false voice, without regard to who was present. 
Onanism is a frequent cause of insanity. In cases pro- 
duced by it, the patient is generally actuated by motives of 
jealousy, and subject to groundless fears. He is frequently 
taciturn and shy in his habits. 
Fits indicate a nervous temperament, liable to be affected by 
the causes of insanity. So, where there is an hereditary 
predisposition to insanity, exciting causes act upon the mind 
with more force. 
My view of this case, is, that Rogers, seeing Mr. Lincoln 
enter with a stranger, and imagining his time had come for 
punishment, felt an irresistible impulse to the homicidal act. 
My experience would lead me to think that all his thoughts 
were engrossed by this one idea of punishment, and that his 
other controlling motives for the time being, ceased to act. 
Friday, Feb. 2. The Defence called one further witness. 
Isaac Ray, called and sworn. I am superintendent of 
the Maine State Hospital; have been such for about three 
years past. In that capacity I have had considerable expe- 
rience in cases of insanity, and have otherwise devoted a good 
deal of attention to the study of the subject, particularly to 163 
TRIAL OF ABNER ROGERS, JR. 
its medical jurisprudence. I am author of the work on the 
Medical Jurisprudence of Insanity, bearing my name. 
I have attended during this trial, and heard all the testi- 
mony which has been given. 
Taking that to be true, I believe that the defendant was in- 
sane at the time of the homicide. I have not heard a single 
fact testified to in regard to him, during the week of the hom- 
icide, which I consider incompatible with his insanity. 1 
think that he had not that control over his actions, which he 
had when well. Insane impulses often come on very sud- 
denly, and appear to be uncontrollable. As an evidence of 
this, we often see insane persons promising not to be guilty 
of violent acts, and expressing sorrow for them as soon as 
done, and yet continuing to repeat them. 
In regard to the reasons for my opinion, I can say but little 
different from what has already been said by Drs. Bell and 
Woodward. One other fact in addition to what was said by 
.them, struck me forcibly : that there seemed to be no constant 
effort on his part to convey the idea that he was insane. He 
was comparatively calm, even during the day of the homicide, 
and about his work ; and at no time were his acts such as to 
give a very strong impression to those around him that they 
were the acts of an insane man. The symptoms, also, were 
not such as most readily give to others the idea of insanity. 
I should call it a case of acute mania, having hallucinations 
for its predominant feature. 
In regard to the physical symptoms, I should say that these 
showed that something was the matter with the man. The 
state of his pulse, his coated tongue, and shrunken features, 
plainly showed that he was diseased in some way. I presume 
insanity is always connected with a bodily disease1; and the 
physical symptoms are always to be noticed in treating it. I 
should think that the pulse was generally accelerated in the 
acute forms of mania. TRIAL OF ABNFR ROGERS, JR. 
I am not certain of an aggravation of the defendant’s dis- 
order, till the very day of the homicide. Then, the evidence 
shows him to have been much more agitated and uneasy. 
I think I never saw, heard, or read, of a case of simulation 
of this kind. It would be extremely difficult to counterfeit it, 
so as not to be detected. Cases of hallucinations, by way of 
false voices, occur more or less in every insane hospital. Such 
voices are heard more frequently at night than in the day 
time. A certain degree of sleeplessness is always an attend- 
ant symptom at the commencement of the disorder. 
The present case is certainly one of short duration. I 
think I never knew of one so short, where the hallucination 
was so prominent. 
The delusions of the insane are frequently concealed and 
lie hid in the mind for some time before they manifest them- 
selves. Where they come on gradually, I think the patient 
most generally keeps them to himself. 
Where the paroxysm of insanity is very severe, and the con- 
duct of the patient very violent, I have generally found a 
breach of consciousness in his mind. He appears to have 
lost a certain portion of time out of his recollection. I have 
always inquired of patients in regard to the degree of their 
consciousness, and I cannot think of a single instance where 
one was conscious of everything during the paroxysm. 
They will say that they recollect something indefinite. The 
patient knows, perhaps, what he is doing; but is not aware 
of the relations and effects of his acts: e. g. he will rush to 
the window and break out the glass, under a belief that it 
will relieve him, when a moment’s reflection, if he could ex- 
ercise it, would satisfy him that it would be of no avail. At 
such a moment he has not a perfect control of his acts ; per- 
haps none at all. It is a common thing for the insane to mis- 
take friends for enemies. 
In answer to the question, “ whether an insane person would TRIAL OF ABNER ROGERS, JR. 
165 
use more violence in the gratification of his insane propen- 
sity, than a sane person excited by anger, revenge, &c.,” I 
can only say, that the insane man is disposed to do all he can 
to accomplish his object. 
Crises are sometimes observed in insanity, when the force 
of the disorder seems to spend itself at a single moment, or 
upon some particular occasion. 
The calmness of the defendant after the homicidal act, is 
in accordance with general experience. 
The vice of self-pollution is often the cause of insanity. 
Hereditary insanity is a predisposing cause to it, to the extent 
of about one half the cases that occur, as is estimated. Fits 
are also a predisposing cause, if epileptic; 
The violence of paroxysm may be as great in transient, as 
in permanent mania. The present case, in regard to the un- 
controllability of the act, seems precisely like those to be read 
of, where one maniacal idea has engrossed the mind, and the 
act is spoken of as springing from an ungovernable impulse. 
Everything in such cases leads to the supposition that the in- 
sane man’s reason is overborne by an irresistible impulse. 
I do not consider the shortness of the duration of the de- 
fendant’s affection an essential particular. 
Homicidal and suicidal propensities are found to coexist. 
Marc and Esquirol are high authorities ; as high as any other, 
on the subject of Insanity. I think highly of Esquirol’s ca- 
pacity to investigate and discriminate Insanity, but should not 
extend the remark to his notions of treatment. 
Cross-examined. I may, in some minor points, have im- 
pugned Esquirol in my treatise, but I generally coincide with 
him. Marc’s work had not been published, when I wrote. I 
have not had much experience in simulated insanity, though 
I have had some. The symptoms of the pulse, &c., are in- 
dications, among other things, of the existence of mental 
disease. 166 
TRIAL OF ABNER ROGERS, JR. 
I do not consider the defendant’s hallucinations to have 
arisen from dreams. I have known persons dream of hearing 
voices in their sleep, but have never known them dream, two 
or three nights in succession, of hearing the same voices. 
Homicide and suicide are more closely connected together 
in insanity, (I mean to say) than in a state of sanity. 
The prisoner’s counsel having stated that they rested here, 
Mr. Parker called some witnesses for rebutting testimony. 
Joseph Tully, recalled. I knew Henry Rocheford in the 
house of correction, both times that I was there, after my 
discharge from prison. I had some conversation with some 
person once or twice about testifying. I told Rocheford, be- 
fore the first trial, that I did not expect to be called as a wit- 
ness. The conversation I had afterwards, was with some 
other person ; but I never told Rocheford or any other person 
that my testimony was false. I had the horrors at the time I 
talked about it. 
George H. Clarke, called and sworn. I was employed at 
the state prison in June last, as foreman of Forster &. Com- 
pany. I oversaw the chair-making department in the room 
under the shoe-shop. I saw Rogers Wednesday morning, in 
the stone-shed, preparing to be showered. He went into the 
bath and came out, saying “ it was a hard one.” I did not 
observe anything unusual in his appearance at that time. 
I was present with Mr. Dwight when he saw Rogers, Friday 
morning. When we went into the arch, Rogers came slowly 
out and sat down on the bench. Mr. Dwight spoke to him, 
and asked if his name were Rogers. He answered, yes ; and 
then answered another question, how old he was. He replied, 
thirty, I think. Mr. Dwight then asked him what Mr. Lin- 
coln had done to him that he should kill him. He hesitated 
a moment, and then said that Mr. Lincoln wasn’t dead — 
that he had seen him there that day with others. Rogers took 
his food and commenced eating in the same manner as I had TRIAL OF ABNER ROGERS, JR. 
167 
seen him before. He looked dull, as if he had been without 
sleep ; and at this time had no bed. He was generally very 
slovenly in his appearance. 
Cross-examined. Rogers came down into my shop 
Wednesday morning, and asked if he could speak to Joe 
Hutchinson. I asked him, why ? He said he thought he 
heard Joe talking to one of the officers about him. I asked 
him what division Hutchinson went in. He said, the sixth. 
I then told him he couldn’t have heard him ; it was all his 
imagination. He said he thought he was right over him in 
the third ; and he guessed he didn’t hear him. He added, 
that he didn’t feel very well. I had some further conversa- 
tion with him about making a noise. I told him he ought 
not to make such a noise. He said he knew it. I told him 
further, that if he repeated his noise, they would carry him 
up to the old prison, and shut him up there. He said if they 
did that, he shouldn’t live. I advised him to go about his 
business, and he promised that he would, and went to his 
work. Afterwards he came to me two or three times, and 
spoke about being shut up; said, if they did it, he shouldn’t 
live. 
(In reply to a question by Mr. Parker,) — I didn’t notice 
anything unusual in his appearance Wednesday. 
Daniel Russell, called and sworn. I was an officer in the 
state prison in June last; superintended the stone-depart- 
ment where the shower-bath is; saw Rogers brought in to be 
showered, Wednesday, the 14th; saw him as he came out, 
and heard him say “ it was a hard one.” I saw nothing dif- 
ferent in him then, from usual. I was also present Thursday 
noon, when he was showered ; didn’t hear anything said by 
him then. I saw nothing unusual about him. He made no 
remonstrance against being punished. 
I saw him again Friday, either morning or noon, when Mr. 
Dwight was present ; heard him make the reply to Mr. 168 
TRIAL OF ABNER ROGERS, JR. 
Dwight that Mr. Clarke has testified to ; — that Mr. Lincoln 
wasn’t dead ; that he had seen him there that morning. Mr. 
Dwight asked him if he killed him on account of his addi- 
tional sentence. He said he hadn’t received so much as he 
expected. Mr. Dwight showed him the blood on his hand, 
and told him it was that hand that had done the deed. He 
looked at it, but said nothing. He didn’t look quite so bright 
as usual; seemed as if he hadn’t had his regular sleep. I saw 
him again at some time subsequent to Sunday, and asked him 
how he was getting along. I told him then that he had killed 
Mr. Lincoln. He said, they say I have; and added, do you 
think I shall be hung? I told him that he would have a fair 
trial. 
Thomas Russell, called and sworn. I was an officer in 
the state prison in June last; had charge of the cabinet-shop 
where the sofas are made. Rogers’s bench was close to the 
door of the shop, and twenty-two steps off from where I stand. 
Thursday afternoon, the 15th, between two and three o’clock, 
I saw him coming from the lower shop, (the chair-shop,) 
up through the cabinet-shop into the shoe-shop. Mr. Lin- 
coln passed by him. I noticed Rogers looked hard at Mr. 
Lincoln. Mr. L. pointed with his cane for him to go up to 
his shop. He obeyed, but I thought he looked as if he 
wanted to clench the warden. Mr. Lincoln was four or five 
steps from him, and I was twenty steps off from both. He 
looked back a second time at Mr. Lincoln as he went into 
his shop. I didn’t notice anything in Rogers’s hand at the 
time. 
In April last, I forgot to say, one day Mr. Payne came and 
asked me to oversee both shops. Rogers came up to me and 
went to talking. Says he, “ I haven’t a great while longer 
to stay, but before I leave I'll pay the warden for it. I 
shouldn’t have got so much additional sentence if it hadn’t 
been for him.” TRIAL OF ABNER ROGERS, JR. 
169 
I saw Rogers, Thursday, P. M., the day of the murder, 
about two o’clock. I heard Crowninshield say that he appear- 
ed somewhat unwell; didn’t notice anything peculiar about 
him, myself. I saw him again, between four and five, coming 
down through the shop to go into the yard to get a wooden 
horse. This time I spoke to him : I said, “ Rogers, you are 
making a mattress — an’t you?” He said he'was. He didn’t 
look any different from common, that I noticed. I saw him 
again Sunday, and gave him his breakfast; asked him how he 
got along: pretty well, he replied; and got up to take his 
breakfast. He took up his coffee and smelt of it, and said 
there wras checkerberry in it: so he did with his mashed pota- 
toes and meat. I asked him if he thought 1 would give him 
checkerberry; and he said, no; and went on eating. I 
watched him ; didn’t see but that he ate as usual. He began 
about Sam Robinson, and Hutchinson, and Cole, and said 
that the popo-game was played on him, and that he shouldn’t 
live more than three or four days. I told him to drop that 
subject; that it was real nonsense to carry it on. He stopped 
upon that. The next words he said, were, “ I am a smarter 
man than a good many officers, here, take me to be.” Mr. 
Dwight, I think, then came in and began to talk with him. 
He ran on about the popo-game. Mr. Dwight asked him if 
he knew what he had done: that he had killed the warden ? 
He replied, “ Oh, no ! it can’t be.” He asked him if he 
would be convinced if he saw the body. Rogers said he 
thought that would convince him. Mr. Dwight combed his 
hair. It was very dirty. I have seen a number of cases of 
feigned insanity, and they made a practice of dirtying their 
heads. It was so in the instance of Clarke : he besmeared 
himself all over. 
Sunday morning, when Mr. Dwight prayed with Rogers, 
he used the expression in his prayer, “ that the prisoner might 
be delivered if he were insane when he did the deed.” Upon 170 
TRIAL OF ABNER ROGERS, JR. 
this, I noticed Rogers’s face to flush up, as if he were pleased. 
In the afternoon, Rogers was taken out by me to see Mr. 
Lincoln’s body. He looked at it five minutes, I should think. 
Mr. Eddy said to him, “ you see what you have done, Rogers.” 
He said, “ no, it isn’t possible ; I couldn’t have done it; it 
must have been the hand of the devil.” Mr. Eddy replied, 
that it was his hand, and not the devil’s. I took him back to 
his cell, and had some conversation with him. He asked me, 
if I thought he was in his right mind when he did the act. I 
told him, I supposed he was: furthermore, that I hadn’t any 
doubt but that he was in his right mind. He then asked me 
if I thought they would allow him to see his father. I told 
him, yes ; if he requested it. He seemed to be very much 
distressed about him. I then asked him if he should like to 
see his mother. He didn’t know but that he should. I have 
not communicated these facts to any person before. 
Cross-examined. I did not see much of Rogers the day 
of the homicide. I recollect his using the threats about the 
warden in the terms I have testified to — am used to hearing 
threats made by convicts — don’t know that I should have 
remembered these in particular, if it hadn’t been for the mur- 
der afterwards — don’t know that I should have remembered 
the look Thursday afternoon, but for the same reason — never 
mentioned them before to any one — to Mr. Parker, nor any 
one else. Mr. Parker may have called me as a witness from 
my having told some of the officers, after the first trial, 
that I wondered he didn’t call more witnesses. I never ex- 
pressed the opinion to any one, that I thought Rogers wasn’t 
insane; may have talked with Mr. Bean, within a day or two, 
about coming to testify ; won’t say but that I have. I don’t 
know that I ever said, that “ Rogers ought to be hung up 
without judge or jury may have said it; won’t swear, that I 
have not said it. 
In regard to expressing an opinion about Rogers’s insanity, TRIAL OF ABNER ROGERS, JR. 
171 
I may have mentioned to one or two of the officers, that I 
thought so. I think I told you (Mr. Bemis) so, at the prison, 
before the first trial. You recollect you asked me, what I 
knew about the case, and I told you I didn’t believe but that 
he was in his right mind. (The witness being here asked, if 
he hadn’t just said that he had never before told any one his 
opinion, that Rogers wasn’t insane, could make no reply. The 
chief justice intimated that he had distinctly made that asser- 
tion.) I am positive that Mr. Lincoln came through the shop, 
Thursday afternoon ; am as confident of that, as of the rest of 
my testimony. It was the warden’s duty to give information 
against convicts so as to have them punished, as second-com- 
ers ; don’t know that Rogers knew of this. (The cross-ex- 
amination showed some other contradictions in this witness’s 
testimony, than those above given.) 
Ebenezer Bent, called and sworn. I was a contractor’s 
agent at the state prison in June last, in the sofa-departments. 
I had my place at the west end of Thomas Russell’s shop. I 
was present at the showering, Wednesday morning and Thurs- 
day noon ; saw nothing particular in defendant’s appearance. 
When he came out of the bath he didn’t appear any ways 
strange. I didn’t observe anything especially strange about 
him, Thursday, at all. 
Cross-examined. My place did not afford much chance of 
seeing Rogers. I didn’t see him a great deal, at any time. 
Johnson Bean, called and sworn. I am a watchman at the 
state prison ; have been such since the 20th September, 1841. 
I know the defendant; inquired him out when I first went to 
the prison ; have occasionally had charge of the prison at 
meal times. I have frequently seen Rogers left out, on being 
reported. On one occasion, some time between the first of 
April and the first of July, 1843, when Mr. Braman had re- 
ported him, for not doing his work right, as I was going with 
him to lock him up in the solitary cell, he used language of 172 
TRIAL OF ABNER ROGERS, JR. 
this kind : that “ it was a hard one for him to be punished so, 
but that it was well known that Braman was one of the 
d — d’st rascals in the United States, and that old Lincoln 
was another ; that Braman wanted no better sport than to re- 
port him, and that Lincoln would punish him for every little 
offence; but that he would fix him before his time Was out.” 
I reported the language to Mr. Lincoln, but he turned it off, 
as not w'orthy of being noticed. 
Tuesday, the 13th, I had some conversation with Rogers. 
While the convicts were locked up to take their breakfasts, I 
heard a kind of groaning noise, and on searching, found it 
came from Rogers. I asked him why he made such a noise. 
He said the warden was going to shut him up. I asked him, 
what for; and he said, for reporting a story about Sam Rob- 
inson. I asked why he violated the rules of the prison so, 
when he knew he would be punished for doing it? He said 
he didn’t break them unless he was provoked. I asked him 
why he didn’t govern his temper ; and he replied that he 
couldn’t, always. I saw him every day except wThen he was 
in solitary ; saw him as he passed the kitchen with the rest of 
the convicts, twice a day at meal times; didn’t notice any- 
thing unusual about him. I took him to his cell after he was 
showered, Wednesday. He said, then, that it-had done him 
good ; he should behave better for the future. He asked me, 
if I thought the warden was going to shut him up. I told 
him if he would obey the rules of the institution, he would 
have no further trouble. I was a witness on behalf of the 
prisoner, on the former trial; have disclosed to yourself, (Mr. 
Parker) since that, my knowledge of these threats. 
Cross-examined. I brought the defendant back to prison 
from the court-house in Boston, after he received his additional 
sentence as a second-comer. He said he* hadn’t got so 
much as he expected ; Mr. Lincoln had spoken well for him ; 
and appeared pleased. I can swear positively that I men- TRIAL OF ABNER ROGERS, JR. 
173 
tioned the threat I have testified to, to Mr. Bemis, when he 
asked me before the trial, what I knew of the case ; perhaps, not 
in the precise words. The reason I didn’t mention it on the 
former trial, was, that I felt somewhat embarrassed at being 
called to testify, as it was the first time I had ever been a witness 
in court. I have heard convicts make threats, but always report 
them. In the conversation which I had with Rogers, Tues- 
day, he said further, that he had heard the officers talking about 
shutting him up. He told me, that he should never be dis- 
charged fhe regular way. I asked him what he meant; and 
he said that some had gone out feet first from that place. 
He should die, if he were shut up. 
Mr. Bemis here stated that he felt called upon to take the 
stand to contradict the last witness in regard to the statement 
of what he had told himself at the prison, and also to con- 
tradict Thomas Russell in the same regard. Accordingly, 
being sworn — 
I have no recollection of Mr. Russell’s ever having told 
me his opinion that Rogers was not insane. I do not find 
any statements of his among the notes of evidence which I 
took at the prison, preparatory to the trial, and feel very con- 
fident that he could not have made any such, as the officers 
whom I examined made a point of not telling me their opin- 
ion. This was under Mr. Sumner’s advice (the inspector), 
who, I understood, recommended that a general silence should 
be preserved in regard to the transaction, until it was investi- 
gated in court. 
I am confident Mr. Bean never mentioned to me at the 
prison the threats he has now testified to, in the same terms. 
According to my notes, he had heard Rogers say frequently, 
that the warden would suffer for punishing him ; not that he 
(Rogers) should make him suffer for it, nor in different terms 
from whcft he had heard other convicts threaten. 
The testimony in the case on both sides having closed here, 174 
TRIAL OF ABNER ROGERS, JR. 
Mr. Bigelow, at half past one, P. M., commenced the closing 
argument in the defence. He spoke substantially as follows : 
May it please your Honors : 
The duty, gentlemen of the jury, which I am now called 
upon to perform, is one which I undertake with unaffected 
misgiving and self-distrust. The task of defending a fellow- 
being on trial for a capital crime, of speaking the last 
words in his defence to the tribunal that is about to pronounce 
finally upon his guilt or innocence, is well calculated to op- 
press the stoutest heart and overwhelm the clearest intellect. 
The painful apprehension is ever present to my mind, 
that some explanation may be omitted, some argument left 
unuttered, some evidence passed over without comment, 
which, if properly noticed and urged upon your attention, 
might influence your minds, and, perhaps, rescue the prisoner 
from the peril in which he stands. I feel that human life is 
too precious and sacred a trust to be committed to such fee- 
ble hands. In truth, this is no common occasion. The duty 
which is devolved upon me is to be performed under the aw- 
ful responsibility of the solemn issue you are trying, and of 
the consequences which that issue involves. My errors, if I 
commit any, are fatal, beyond the reach of atonement, and 
without the hope of retrieval. This is not all. There are 
circumstances peculiar to this case, in addition to the painful 
responsibility of a cause involving the momentous issue of 
life and death, which make it one of unusual difficulty and 
embarrassment. There is nothing in the prisoner’s history, or 
in the circumstances under which the crime for which he now 
stands charged was committed, that secures to him the sym- 
pathies of the public or of the jury. He has not even the 
small benefit which might be derived from a good character 
and a life of virtue. He is stripped of every attribute which 
might enlist in his behalf your favor and indulgence. He is TRIAL OF ABNER ROGERS, JR. 
175 
brought here a convict. He is described, in the indictment 
upon which you are now trying him, as having long been an 
offender against the laws, and at the time of committing the 
awful crime with which he is charged, as paying the forfeit of 
his liberty to the violated laws of his country in the peniten- 
tiary. I cannot, therefore, address myself to your hearts and 
sympathies in behalf of one who thus stands, in the outset, 
before you as a criminal, and with the brand of condemnation 
upon him. But, it is not to be forgotten, that, although thus 
a prisoner and a convict, without influence and without friends, 
he is still a fellow-mortal, with hopes and fears and affections 
the same as your own ; that life is as dear to him as to any 
of you, and that he has an immortal soul, as precious in the 
eye of God as that of the highest and most respected citizen 
in our community. And so the law, in its wisdom and hu- 
manity, regards him. He stands at that bar, furnished with 
all the security and protection which can be afforded to him 
consistently with the due administration of justice. During 
the progress of this trial, you have seen the law in a double 
aspect; on the one hand, as an avenger of wrong, seeking 
the conviction and punishment of the offender; and on the 
other hand, in the milder and more benignant character of the 
defender of the accused, and the protector of the innocent. 
And thus it is that the prisoner, although destitute of all that 
wealth, or favor, or influence might do for him, still stands 
before you surrounded, shielded, and upheld, by the all-pro- 
tecting panoply of the law. 
It is your duty, gentlemen, to discard any prejudice or bias 
which may have arisen in your minds against him on account 
of his past life and history. To you, all his past life is to be 
as nothing. The law requires you to regard him as if he had 
been brought here, not as a convict from a prison, but as a 
citizen from his own home. He is to have, at your hands, all 
the presumptions of innocence in his favor, until he is proved 176 
TRIAL OF ABNER ROGERS, JR. 
guiltv, and you are to try him without any reference to what 
he has been or now is, upon the simple issue which has been 
put to you. I ask you, then, to come to consideration of 
this case with clear minds and unbiased judgments ; to try the 
prisoner upon the law and the evidence only ; and whatever 
may be the result, you will then have satisfied your own con- 
sciences and fulfilled the high and solemn purposes for which 
you have been impaneled. 
I propose to ask your attention, in the first place, to the 
evidence in the case, bearing upon the point of express malice, 
before presenting to you the grounds of the defence. This 
method will be more simple, and will tend to enable you more 
readily to extricate the case from the difficulties which sur- 
round it. I shall contend to you, that there is no express 
malice proved. If the evidence were sufficient to satisfy you, 
that this crime was the result of a settled, deliberate, and 
long-harbored intent on the part of the prisoner, then the case 
of the government would be clearly made out, and the de- 
fence which we have set up would be at an end. It is, there- 
fore, essential to the prisoner’s case that you should be con- 
vinced that there was no express malice. To prove the exist- 
ence of this malice, the government rely upon three pieces 
of evidence. In the first place, it is contended that the lan- 
guage to which Jaquith swears as having been uttered by 
some one, and as he thinks and believes by the prisoner, at 
the moment the fatal blow was struck, shows that it was the 
result of a previous, fixed, and deliberate intent, and proves 
malice aforethought. But look at the evidence for a moment, 
and consider whether it will justify you in drawing any such 
inference. If you will recall the testimony of the witness, 
you will remember that he would not swear that the words 
were uttered by the prisoner, but only that he believed that 
they came from his lips. But in a case of this importance, 
you cannot convict upon the inferences of other people. Hu- TRIAL OF ABNER ROGERS, JR. 
177 
man life is too precious to be periled upon presumptions. For 
my own part, it makes me shudder to see a witness take the 
stand, as this Mr. Jaquith has done, when he knows the life of 
a fellow-being is at stake, and, under oath, state his belief 
not founded upon knowledge, that certain words were utter- 
ed by the prisoner, which, if believed by you, must at once 
and forever seal his doom. It would better have become the 
witness to have testified that he heard the words from some 
one, and left you to draw the inference, instead of voluntarily 
thrusting in his own belief in order to prejudice and mislead 
you in your judgments. 
But what was the language which he says he heard ? “I 
told you I would ! ” The change of one word, and that word 
a single letter, alters the whole meaning of the sentence, and 
takes from it its bearing against the prisoner. If some third 
person had uttered it, as he might under the circumstances, 
very probably, have done, it would have been, “ I told you he 
would,” and thus deprived it of all its force as against the pris- 
oner. And how can this witness, who is so ready and swift 
to put in his belief and presumption against the accused, be cer- 
tain of the exact words, to a syllable and a letter, which were 
littered on that occasion ? Remember, that he has testified that 
these words did not recur to his mind for several days after the 
homicide, and then they came back to his recollection, he 
knows not how. He did not swear to them when he gave his 
testimony before the coroner’s jury, although he was there 
called upon to state all he knew about the transaction. He 
was, too, confused and alarmed at the awful scene of which 
he was the witness; so much so, that he has, as proved by 
several witnesses, made a mistake in saying that there was no 
one between himself and Thorn at the time the act was done, 
when, on the contrary, it fully appears that Lauber was be- 
tween them. I say, then, that the evidence of Mr. Jaquith is 
altogether too vague, uncertain, and unsatisfactory, to form 178 
TRIAL OF ABNER ROGERS, JR. 
the basis of even a suspicion against the prisoner of express 
malice. It is, at best, an inference of the witness, drawn by 
him from doubtful premises, and under circumstances which 
deprive it of all claims to your confidence. It is not to be 
forgotten, in this connection, that among all the witnesses who 
were present at the tragedy, and who have been called to tes- 
tify upon the stand, not one of them has sworn to a syllable, 
which bears any semblance to the language to which Jaquith 
has so confidently testified. If any such words were uttered 
indicating so atrocious and malignant a purpose, it is not pos- 
sible that they should not have reached the ears of some other 
persons who were in the immediate vicinity of the parties, and 
have been remembered and brought forward here in corrobor- 
ation of Jaquith. In an issue of thus awful import, I am 
sure you will not give a moment’s heed to evidence so doubt- 
ful and uncorroborated, but that you will'require a higher and 
better kind of testimony to warrant you in believing that any 
man can deliberately harbor in his bosom so dreadful a pur- 
pose, and execute it in so fiendlike a manner. 
We now come, in the second place, to a portion of the tes- 
timony, upon which the learned counsel for the common- 
wealth confidently relies, to satisfy you of the express malice 
of the prisoner. I confess to you that I feel the pressure of 
this part of the case ; but I hope, and on my conscience be- 
lieve, that it is to be explained in perfect accordance with the 
defence which we maintain, even if you believe the evidence 
which has been adduced in its support. I now refer to the 
evidence of previous threats by the prisoner against the war- 
den. To sustain this vital part of the case for the common- 
wealth, the learned counsel has brought forward three wit- 
nesses. I shall fearlessly put it to you, gentlemen, that two 
of these witnesses are utterly discredited and unworthy of 
your belief, even in a case of much less importance than the 
one you are now trying. I shall waste no time in remarking TRIAL OF ABNER ROGERS, JR. 
179 
upon the evidence of Russell. I leave him to be judged of 
by you from his appearance on the stand. It is one of the 
benefits of a trial by jury, that witnesses are subjected to the 
personal inspection of the jurors, who can estimate the amount 
of credence to be given to them from their mode of testifying. 
The truth is always plain and never to be mistaken, but false- 
hood often wears a mask, which it is the province of a jury to 
penetrate and strip off. I think I cannot err in saying, that 
the manner in which this witness, Russell, has testified, his 
confusion, his contradictions, his evident bias, have satisfied 
you that no reliance can be placed on his evidence. 
We then come to the evidence of Tully. I find it difficult 
to speak of the testimony of this man in terms which it seems 
to require. He is brought here from the house of correction, 
to which place he has been committed a second time since 
the former trial of this case in July last. He is put upon the 
stand, with the pardon of the Executive in his hands to re- 
store his competency as a witness, which he had lost by his 
sentence to the state prison. His manner of testifying is in 
accordance with his previous character and life. You could 
not safely take the life of a brute on the evidence of such a 
reckless and unprincipled witness. But it is not merely by 
his character and mode of testifying that he is discredited. 
He is contradicted and impeaehed in several important par- 
ticulars. He tells you that Rogers first threatened the war- 
den as early as September or October, 1842, and that the 
cause of his threat, at that time, was, that he was in difficulty 
often, and on the morning of the day when the threat was 
uttered to the witness, he had been showered as a punish- 
ment. Now, in this most important piece of evidence, he is 
directly contradicted, and in a manner, too, that shows him 
to be testifying falsely. The record of punishments, which 
is put into the case, shows that, for more than a year previous 
to the time fixed upon by the witness, he had not been pun- 180 
TRrAL OF ABNER ROGERS, JR. 
ished at all, and when punished, it was by solitary confine- 
ment, and not by showering. Thus, all motive for the threat 
is taken away, and the story of the witness falls to the ground. 
How can you believe a man who is thus signally discredited ?' 
The next threat to which this witness testifies, was in the 
month of February last: and the motive for this threat, as he 
states, was, that Rogers believed that the warden was endeav- 
oring to procure a severe sentence against him as a “ second 
comer.” But it is abundantly proved, by several witnesses, 
that the prisoner cherished no ill will against the warden on 
this account, but, on the contrary, frequently expressed him- 
self satisfied with his sentence, and particularly pleased with 
the manner in which the warden spoke of him to the court. 
The first threat, therefore, to which this witness has sworn, is 
disproved by the record of punishments, and all motive for 
the second is taken away. But we do not leave him here. 
We have also produced to you the testimony of Rocheford, 
who tells you that this Tully had, after the first trial, told him 
that he never heard Rogers utter any threats, and that he had 
sworn to them in order that he might get released from im- 
prisonment, and obtain money, as he hoped and believed, 
from the government. I feel a deep regret, that the govern- 
ment should have deemed it necessary to resort to such pol- 
luted sources to obtain testimony to sustain this most impor- 
tant part of their case. I am sure the learned counsel for the 
commonwealth must have felt the weakness of this portion of 
his case, or he would not have ventured to strengthen it by 
the evidence of such a witness; and I think you will be of the 
opinion, that the government do not advance the cause of 
public justice by producing here, as witnesses in a capital 
trial, men rendered infamous by their crimes, who are even 
now inmates of the house of correction. 
In addition to the testimony of Russell and Tully, vve have 
also the evidence of Johnson Bean, one of the officers of the TRIAL OF ABNER ROGERS, JR. 
181 
prison, to prove previous threats by the prisoner against the 
warden. He tells you that, about three months previous to 
the homicide, the prisoner threatened, after receiving some 
punishment, that he would fix the warden before he left the 
prison. There is one fact in regard to this witness which is 
very remarkable, and which, in my judgment, seriously im- 
pairs his credibility. He was a witness on the former trial. 
He did not then testify to a single word implying a knowledge 
by him of any such threat as that to which he now so deliber- 
ately and confidently testifies. Can you believe, gentlemen, 
that if he really knew of any such threat, he would have for- 
gotten or omitted it then ? Was he not more likely to remem- 
ber such an important fact within two or three months of its 
occurrence, than after a lapse of eight or nine months ? What 
has recalled it to his mind ? All the witnesses tell you that, in 
the prison, it is a common thing for prisoners to utter threats 
against the officers. How can this witness now recall this par- 
ticular threat by the prisoner, among all the threats he must have 
heard in that prison during the last ten months ? The wit- 
ness accidentally let fall, in the course of his examination, an 
expression which seems to me satisfactorily to account for this 
sudden revival of his recollection. He said, as I understood 
his language, that he was never afraid of his life in the prison 
until this homicide took place. Has the witness, then, find- 
ing the evidence was insufficient to convict the prisoner at 
the last trial, come up here with this additional testimony, in 
order that, by strengthening the case of the government, he 
might secure the conviction of the prisoner, and at the same 
time his own safety in the discharge of his duties in the 
prison ? Testimony, which is given under such peculiar cir- 
cumstances, must be taken with great caution by jurors in the 
trial of a case like this. Mr. Bean is too intelligent a man 
not to know the meaning of the words, in the oath he takes 
as a witness, “ to tell the whole truth and his attempt to ex- 182 
TRIAL OF ABNER ROGERS, JR. 
plain the reason, why he failed to testify at the former trial to 
the threat to which he now swears, will hardly extricate him 
from the equivocal position in which he stands, I submit, 
with great confidence, that you cannot give any great weight 
to his evidence. 
But after all, there is another consideration, which I think 
puts at rest the whole case of the government, on the point of 
express malice. If you believe the evidence of the three wit- 
nesses who have testified to the threats, (as I submit you can- 
not,) yet it cannot be controverted or doubted, that the whole 
tenor and effect of the evidence in the case on both sides 
shows, that the prisoner entertained no ill will or even unkind 
feeling against the warden. If, under the provocation of 
some punishment, he had once or twice, as prisoners often do 
under like circumstances, indulged in threatening expressions 
against him, yet it is abundantly proved, that on many occa- 
sions, especially in reference to his sentence as a “ second 
comer,” he had spoken kindly, and with gratitude, of 
him. I need only refer you to the testimony of Bean, the 
government witness, of Crowninshield, and Reed ; to all of 
whom, at different times, he voluntarily uttered expressions of 
kindness and thankfulness to Mr. Lincoln, for having spoken 
well of him to the court, “ better than he expected,” and 
having thereby saved him from a long sentence. But this is 
not all. The threats, which the government attempt to prove, 
were uttered long previous to the act of homicide. We hear 
of nothing of the sort, either in look or words, at or about the 
time the act was committed. No expression of hatred, malice 
or revenge, escapes the prisoner’s lips, or shows itself in hb 
countenance, at the time the government would have you be- 
lieve this terrible design was deliberately harbored in the 
mind of the prisoner, and he was maturing it to its comple- 
tion. Think you, that this man, who was carrying out a long 
cherished intent, of which he had, as the government allege TRIAL OF ABNER ROGERS, JR. 
183 
by his previous threats given intimations, would, as the time 
for its fulfilment drew near, when his mind and heart must 
have been full of his malignant purpose, have shown no sign, 
and uttered no threat, even to a comrade, which would have 
betrayed his malice ? And yet there is no such evidence of- 
fered to you here. If the government could have proved any 
immediate provocation, if they could have shown any act or 
look which could have been construed into a threat toward 
the warden, during a week or fortnight preceding the homi- 
cide, the case would have been far different. But as it stands 
before you on the evidence, it cannot be reasonably contended 
that any express malice is proved. And how was it after the 
act ? Do you hear, then, of any expressions of gratified 
malice or glutted revenge ? Oh, no ; on the contrary, he 
speaks in terms of kindness and regard of his unfortunate 
victim ; and when asked, if he had any fault to find with Mr. 
Lincoln, or any antipathy against him, he does not utter a 
word to indicate that any such feeling had ever touched his 
heart. You will remember that Mr. Fogg, Mr. Dwight, and 
Savary, all testify fully to this point. There is only one piece 
of testimony, which throws any doubt upon this part of the 
case. I now refer to the evidence of Warren B. Parker, who 
testified to some expressions of the prisoner, when he took 
him from the cell, a short time after the homicide, for the pur- 
pose of searching his person. “ I have fixed the warden, and 
I will have a rope round my neck to-night.” This, the learn- 
ed counsel will contend, is positive proof that the act was done 
with malice prepense and aforethought. But, gentlemen, is 
it so ? Does it mean anything more than a mere declaration 
of the prisoner that he had committed the act, and that he 
was to be hung for it that very night. I submit to you, that 
it cannot serve to sustain the case of the government on this 
point. It indicates no express malice. It is rather, as it 
seems to me, the expression of an insane man, who was con- 184 
TRIAL OF ABNER ROGERS, JR. 
scious for the moment of the awful act he had committed, 
and who had some vague idea that punishment was to follow. 
I shall have occasion hereafter, when I come to consider the 
grounds of defence, to ask how the learned counsel for the 
government will reconcile this open declaration of the act by 
the prisoner, with the theory, that the prisoner feigned his in- 
sanity to cover up and conceal the act. 
Thus, then, gentlemen, this part of the case for the govern- 
ment is disposed of. In the first place, we contend, that the 
witnesses, who testify to the threats, are unworthy of belief. 
In the second place, that the threats, if proved, are of com- 
mon occurrence in the prison, and do not necessarily show 
express malice. And in the third place, that it is clearly and 
abundantly proved, that the prisoner, so far from cherishing 
ill-will and malice toward the warden, felt kindly toward him, 
and spoke in friendly terms of him, both before and after the 
homicide. 
I think I am safe in asserting, that the government have 
failed to satisfy you on this most material part of their case, 
and that they must rely on other portions of the evidence to 
convince you of the guilt of the prisoner. I feel great joy in 
the assurance that there is nothing in the testimony which 
convicts the defendant of having so black a heart, as he must 
have possessed, to have committed this fatal act with delib- 
erate and determined malice. I could not have stood up be- 
fore twelve honest men, to defend a man, whom I believed 
capable of such a wicked and deadly intent. But I can, and 
I do claim for him at your hands, with the utmost confidence, 
upon the testimony before you, a full, entire, and unhesitating 
acquittance from the charge of express malice. 
This preliminary question being settled, we come now, na- 
turally and in order, to the real grounds of the defence. I 
have said before, that if the government had satisfied you that 
there was express malice, the case of the prisoner would be TRIAL OF ABNER ROGERS, JR. 
185 
at once at an end, because it would imply the existence, 
at the time of the homicide, of reason, sanity, and the 
power of directing and controlling- the will. If the view 
I have submitted to you of the evidence be correct, there is 
no such express malice shown, and you are left to infer the 
ingredient of malice, which the law requires to constitute 
murder, from the act itself and the circumstances attending it. 
In other words, the case of the government stands only on 
implied malice. This implication, we say, is rebutted by the 
proof of the insanity of the prisoner. 
I know, gentlemen of the jury, that there is in the public 
mind, a strong and wide-spread prejudice against insanity as 
a defence in criminal trials, and it has added greatly to the 
weight of responsibility, which I have felt so painfully in this 
case, that we have been compelled to struggle against the tide 
of public sentiment in order to gain at the outset a favorable 
hearing for the prisoner’s defence. The learned counsel for 
the government, in opening his case, told you it was “ a de- 
fence easily made,” and held up to your view the consequences 
which might follow, if juries too readily listened to such de- 
fences in courts of justice. Such a cau tion was unnecessary. 
I have mistaken public sentiment, if juries in this state are 
found to be over-anxious to sustain them. It has been stated 
to you that this plea has been much abused, both in this coun- 
try and in England. I was sorry to hear such an intimation 
coming from the learned counsel for the government. What 
have you to do with the decisions of juries in other courts ? 
You are sworn to try this issue and this issue only. The de- 
fence of insanity is a legal defence. Books have been writ- 
ten upon it by learned jurists, and courts of justice throughout 
the civilized world admit it. You are to try it as you would 
try any other defence, without reference to its consequences, 
or to its abuse elsewhere, or even here. You are to adminis- 
ter law, not to make it or destroy it. And your duty requires 186 
TRIAL OF ABNER ROGERS, JR. 
you to consider and weigh this defence as patiently, as cau- 
tiously, as considerately, as humanely, as any other which can 
be set up in our courts. But aside from this view, I deny the 
statement which is so often made, and which the learned 
counsel for the government repeated, that the plea of insanity 
is abused. When, and how, and where has it been abused ? 
Point to the instance in New England, where a jury has re- 
turned a verdict of acquittal on the ground of insanity, that 
the subsequent history of the person acquitted has not shown 
to have been a righteous verdict. I have high authority for 
stating, that there is *no such instance on record for the last 
fifty years in the judicial history of New England. But alas, 
the cases, which my associate cited to you in his learned and 
elaborate opening for the defence, must have satisfied you, 
that often, very often, the reverse has been true, and that 
many unfortunate victims have suffered punishments, whose 
insanity should have saved them from legal condemnation. I 
do not hesitate to say, that so far from being abused, or too 
often used to shelter criminals in this commonwealth, it has 
been too frequently slighted and disregarded in our courts. 
Dr. Walker, in his testimony in this very case, tells you, that 
since he has been physician of the state prison, there have 
been twenty prisoners sent there whose state of mind was 
such as to render them unfit subjects for punishment. This 
evidence, coming from a witness, whom you will not think 
much inclined to favor the plea of insanity, speaks volumes. 
It teaches us a solemn lesson, warning us to be vigilant in the 
discharge of our duty by bringing to our minds the errors of 
others, upon whom like responsibilities have devolved. It 
seems to me, that the defence of insanity, so far from being 
one which courts and juries should receive with hesitation and 
distrust, should, on the contrary, be regarded with indulgence 
and favor. The disease is one in its very nature mysterious 
and almost beyond the reach of human skill. No one can 187 
TRIAL OF ABNER ROGERS, JR. 
surely anticipate the time, or manner, or cause, of its approach, 
or foretell with certainty the length of its continuance, or its 
probable result. It comes upon the intellect without a warn- 
ing, and prostrates at a blow all the better faculties of our 
nature, poisoning the fountains of thought, unhinging the will, 
and making man the sport of caprice, and the slave of an un- 
governable impulse. Unlike other diseases to which the hu- 
man frame is subject, its symptoms and manifestations differ 
in almost every case. No certain or definite rules can be laid 
down by which its existence can be invariably and surely de- 
termined. And thus it happens, that it is often most difficult 
to prove by sufficient evidence in courts of justice the pres- 
ence of this terrible malady. For this reason, I say, that it 
is your duty to lean in favor of this plea, rather than against 
it; to listen with careful consideration to the defence of this 
unfortunate man ; not to shut your ears and close your eyes 
against it, because he stands charged with a heinous crime, 
or because it may happen, that insanity is sometimes used to 
screen the guilty. Is it not sad enough to be stricken down by 
such an awful calamity — to be marked, as it w’ere, by the finger 
of God, for a fate more dreadful than death itself— without 
being denied the sympathies of one’s fellow-men, or having to 
encounter their prejudices in a matter involving character and 
life ? I call on you, then, to weigh with caution and with 
mercy the evidence for the defence: give to every slight cir- 
cumstance full consideration : remember that insanity cannot 
be proved with the perfect certainty, with which a common 
occurrence could be shown to you; that you are to draw your 
conclusions from appearances, and the opinions of those skilled 
in such matters, and competent to enlighten you on a subject, 
beyond the reach of the experience or knowledge of men en- 
gaged in the ordinary pursuits of life; and that you are to 
keep your minds free and open to receive the evidence, and to 
weigh it in mercy: and thus I shall cheerfully and fearlessly 
submit the fate of the prisoner to your judgment. 188 
TRIAL OF ABNER ROGERS, JR. 
The law applicable to this case has been so fully stated by 
my associate in his elaborate and learned opening argument, 
that it will only be necessary for me to recapitulate a few 
points, so ably stated by him. Before, however, I proceed to 
ask your attention to the precise legal positions upon which I 
shall rest the prisoner’s case, I have one or two general re- 
marks to make concerning the past and present state of the 
law, relating to the plea of insanity in criminal cases. The 
learned attorney for the government has gone far back into 
antiquity, and has cited from black-letter law books, defini- 
tions of insanity, which he contends are to be your guide in 
considering the prisoner’s case. He has quoted the opinion 
of Coke and Lord Hale, and maintains that the doctrines laid 
down by those jurists are the true legal distinctions at the 
present day, and are authorities by which the court are to be 
governed in their instructions to you. But I apprehend that 
this is not strictly so. Insanity is by no means regarded in 
our day in the same light in which it was looked upon, a hun- 
dred, or even fifty years ago. The time was, when the 
insane man was viewed as though he were the object of 
divine vengeance, and was treated as an outcast and crim- 
inal. Within our own recollection, dungeons, cages and 
chains have been deemed the fit and proper appliances for this 
unfortunate class of our fellow-beings, for whose sufferings 
and calamities it was supposed there was no cure or end, ex- 
cept in death. But, thanks be to God, and to the progress of 
advancing science and enlightened philanthropy, a light has 
penetrated these dark receptacles, and all that kindness, skill, 
benevolence, and wealth can do, is now given to the relief 
and comfort and cure of the insane. We need not go be- 
yond the limits of our own commonwealth for the proof of 
this assertion. The spacious and magnificent hospitals, which 
now open their doors to receive all those afflicted with the loss 
of reason, the poor as well as the rich, affording to them the TRIAL OF ABNER ROGERS, JR. 
189 
benefit of the highest medical skill, and of all those means 
which experience has shown to be for their relief and restor- 
ation, are noble monuments to the benevolence and charity of 
our community, and show the change, which has taken place 
in the public mind, in regard to the nature and treatment of 
insanity within the last twenty years. But the rules of law, 
in this state and elsewhere, have not kept pace with this 
change. It is so difficult to alter or modify a rule of law — 
our courts adhere so strictly to precedent and authority, 
that notwithstanding the great modification of the views of all 
medical men upon this subject, there is no corresponding 
change in the rules of law relating to it. For this reason 
the elementary books still adhere to the old definitions and 
distinctions, and we read and hear them now in the same 
words, as they were originally laid down a century or more 
ago. I make these remarks, lest you should be misled by 
hearing the oft-repeated rule, that the insane man must be 
“ incapable of distinguishing between right and wrong in or- 
der to excuse a crime,” upon which the learned counsel for 
the government has insisted with so much emphasis. Al- 
though the rule is so laid down, yet you will find that in its 
application to the particular cases which are reported in the 
books, there has been a constantly progressive amelioration 
within the last forty years. The English reports are full of 
cases, where the defence of insanity has prevailed under the 
direction of their highest courts, in which a strict adherence 
on the part of the court to the old rule, would have been fatal 
to the success of the defence. Even in the opinion which 
the judges of England gave in the House of Lords, in June 
last, Lord Chief Justice Tindal, although adhering to the old 
formula of words, at the same time takes care to state, that it 
is difficult to lay down any abstract rule on the subject, ap- 
plicable to all cases, but that each case must be decided in 
great measure upon the facts and circumstances peculiar to it, 190 
TRIAL OF ABNER ROGERS, JR. 
under the direction of the court. I think, therefore, I can 
safely say, that in considering this case you may lay out of 
your mind the nice and metaphysical distinction, upon which 
the learned counsel for the commonwealth has so strenuously 
insisted, that you must be satisfied that the prisoner, at the 
time of committing the act, could not distinguish between right 
and wrong before you acquit him on the ground of insanity. 
It appears to me that the law, as applicable to this case, 
may be stated in a form more in accordance with re- 
cent authorities and cases, and less embarrassing to your 
mind. I shall contend, under the direction of the court, 
that the rule is this : If you are satisfied, that the 
prisoner, when he committed the homicide, was laboring 
under a delusion, which overpowered his will, and de- 
prived him of self-control ; and that the act was con- 
nected with that delusion, he is entitled to an acquittal. 
In support of these positions, I shall cite a few author- 
ities, which, I think, will fully sustain them. 
la Chitty’s Med. Jurisprudence, page 345, I find the 
law thus stated, — “ The true criterion or test of insan- 
ity, (where there has not been any clearly demonstrated 
frenzy or raving madness,) is the absence or presence 
of what is termed delusion; and that whenever an in- 
dividual once conceives something extravagant to exist, 
which has no existence, and when he is incapable of 
being reasoned out of the absurd conception, then he is 
to be considered as under a delusion, and either an idiot 
or insane.” So the same author says,* “ Sir John Nichol 
has observed, that it may be difficult and perhaps dan- 
gerous to attempt to define what is the essence of in- 
sanity ; but that delusion has been generally laid down 
as essential; that is, fancying things to exist which can 
* Chitty Med. Jur. page 350. 191 
TRIAL OF ABNER ROGERS, JR. 
have no existence, and which fancy, no proof or reason- 
ing will remove.” So Lord Erskine, in the trial cited 
by my associate,* lays it down in strong and emphatic 
language, that, “ delusion, where there is no frenzy or 
raving madness, is the true character of insanity; and that 
the true doctrine of law is, that the delusion and the act 
should he connected.” The case of Hadfield,f which was 
detailed to you in the opening for the prisoner, and need 
not now be re-stated by me, is strongly in point in the 
present case. There, was no raving madness, no inability 
to act sanely on general subjects, but a delusion on a 
particular matter in the mind of the prisoner, which led 
him to commit the act for which he was tried. It was 
the first case in the English courts, in which the rigor of 
the old rules of law was relaxed, and a new era was 
commenced, more in conformity with the principles of hu- 
manity, and of advancing medical science. Roscoe, in his 
work on Criminal Evidence, page 778, says : “ The de- 
fence of insanity is one involving great difficulties of 
various kinds, and the rules which have been laid down 
by the judges, with regard to the nature and degree of 
aberration, which will excuse a person from punishment, 
are by no means consistent with each other, or, as it 
would seem, with correct principle.” And, on page 781, 
he adds, “ The following observations of an eminent 
writer on the criminal law of Scotland, are applicable 
to the subject. Although a prisoner understands perfectly 
the distinction between right and wrong ; yet, if he labors, 
as is generally the case, under an illusion or deception in 
his own particular case, and is thereby incapable of ap- 
plying it correctly to his own conduct, he is in that state 
of mental aberration, which renders him not criminally an- 
**See Chitty, Med. Jur. page 360. t See Roscoe’s Crim. Ev. page 782. 192 
TRIAL OF ABNER ROGERS, JR. 
swerable for his actions.” So a recent writer,* in a work 
of great ability, after considering at much length the dif- 
ferent legal tests on the subject of insanity, remarks, that, 
“ There are no certain legal or medical rules, whereby 
homicidal mania may be detected. Each case must be 
determined by the circumstances attending it : and the 
true test of irresponsibility appears to be, if it could be 
practically applied, whether the individual, at the time of 
the commission of the crime, had or had not a suffi- 
cient power of control to govern his actions.” And Beck, 
in his work on Medical Jurisprudence, a book of stan- 
dard authority in our courts of justice, after stating the 
rules of law, especially referring to the distinction between 
right and wrong, says, that, “ It is to be feared that cases may 
sometimes occur in which the dividing line between sanity 
and insanity is overleaped in the ardor to punish a foul 
homicide. The form of insanity which most commonly 
leads to the perpetration of this enormity, is one that 
assists in increasing the difficulty. It is that of melan- 
choly, where the mind broods over a single idea, and 
that idea may be his own destruction, or the destruc- 
tion of others.” j* , 
Some of the leading modern English cases, have been 
those of delusion only, where the prisoners have been 
perfectly sane on all subjects except the one in regard 
to which their delusion has existed ; and in all these cases 
juries, under the direction of the courts, have acquitted 
the prisoners. Such was the case of Rex v. Offord, % 
and the still more remarkable case of Regina v. Oxford, <§> 
both of which were cited to you by my associate in his 
opening. In the latter case, Chief Justice Denman, in his- 
* Taylor’s Med. Jur. London, 1844, page 649. 
t Beck’s Med. Jur. Yol. I, page 370. 
*5 Car. & P. 168. §9 Car. & P. 625. 193 
TRIAL OP ABNER ROGERS, JR. 
charge to the jury, stated to them the law in a clear, fair, 
impartial manner ; and I beg to call your special attention 
to his language, as stating the precise grounds upon which 
I am willing to put the case of the prisoner at the bar. 
He says: “ The question is, whether the prisoner was 
laboring under that species of insanity, which satisfies you 
that he was quite unaware of the nature, character, and 
consequences of the act he was committing : or, in other 
words, whether he was under the influence of a diseased 
mind, and was really unconscious at the time he was com- 
mitting the act, that it was a crime.” 1 And then, too, the 
case of McNaughten, which has been so often referred to, 
was one of a delusion, (co-existing in the mind of the prison- 
er, with sanity on other subjects, and an ability to transact 
business, and to attend to all the common duties of every- 
day life,) which led him to shoot a man down in open day 
in the streets of London. Now, after all these authori- 
ties and cases, it seems useless to be mystifying your 
minds in endeavoring to raise nice questions here, as to 
whether the prisoner, when he committed the act, could 
or could not distinguish between right and wrong. You 
cannot penetrate into the recesses of his mind. You are 
to judge from outward appearances and acts; and this you 
can do with ease and satisfaction, if you will follow the 
lights of the authorities which I have cited, under the 
instructions of the court. Let me then repeat the rule 
which should guide you in considering this case. If you 
are satisfied that the prisoner, when he committed the 
homicide, was laboring under a delusion, which overpower- 
ed his will, and deprived him of self-control, and that the 
act was connected with that delusion, he is entitled to a 
verdict of acquittal. 
1 9 Car. & P. 547 194 
TRIAL OF ABNER ROGERS, JR. 
Upon these cases and the rule I have deduced from 
them, I shall rest the defence of the prisoner. If upon 
the evidence I can satisfy your minds, that this case, comes 
within the rule, I shall, under the direction of the court, 
claim his acquittal at your hands. You are to be satis- 
fied, then, of two things : first, that a delusion existed 
in the mind of the prisoner ; and, second, that the act 
was connected with that delusion. 
I shall not take up your time in arguing to you the 
question, whether the witnesses have proved, that prior 
to the commission of the homicide, and immediately sub- 
sequent to it, the prisoner appeared to be suffering under 
some great and overpowering mental delusion. The learned 
counsel for the government will not deny that there were 
real or feigned symptoms and manifestations of insanity 
by the prisoner, during the week of the homicide. As- 
suming for the moment that these appearances were the 
real consequences and results of genuine mental aberration, 
I call your attention to the form in which the insanity 
of the prisoner was manifested, and to its peculiar char- 
acteristics. The whole tenor of the evidence shows that, 
commencing on Monday night and continuing with in- 
creasing aggravations up to some period subsequent to the 
death of the warden, the prisoner was laboring under some 
powerful hallucination ; that he was at times in very great 
distress and apprehension ; that he declared that he heard 
the voices of his fellow prisoners, confined in distant parts 
of the prison, and also of some of the officers speak- 
ing to him, and threatening him with danger ; telling 
him that poisonous substances were mingled in his food; 
that a fatal or dangerous game was playing upon him, 
which he could not long survive ; and that the warden 
was going to take him up to the old prison, shut him 
up and keep him there till he was carried out feet first; TRIAL OF ABNER ROGERS, JR. 
195 
that he expressed his fears and apprehensions at various 
times to different persons, during the three days prior to 
the homicide, and particularly and frequently stated, that 
the warden was going to shut him up, and that if he 
did he should not live three days, he should be carried 
out feet first ; and other statements of a like kind. This, 
in a few words, describes the nature of the delusion, 
which appeared to have taken possession of the prison- 
er’s mind. His predominant fear seemed to be, that he 
was to be shut up by the warden, and that the con- 
sequence would be that he should suffer instant death. 
If this was a real delusion, it was clearly connected 
with the act of homicide; because he labored under the 
belief, that the warden was plotting against his life, and 
was about to kill him by shutting him up in the old 
prison. His delusion, if real, related to the warden. He 
was the object of his suspicions and fears, and upon 
him, following out the regular train of his insane imagi- 
nation, he made the fatal attack, in order to protect 
himself from the danger which he believed was impend- 
ing over him. If this be so, we may assume, as a fact, 
proved by the evidence, that if the delusion, to which the 
witnesses have testified, was real and actually existed in 
the mind of the prisoner, it related to the act and was 
connected with it, and brings the case, therefore, within 
the authorities, and the rule I have stated to you. 
We now approach, gentlemen, the real question of diffi- 
culty in this case, upon the decision of which, as I ap- 
prehend, the fate of the prisoner will mainly depend. 
Was the delusion, which manifested itself in the prisoner 
prior and subsequent to the homicide, real or feigned ? 
To this part of the case I ask your attention, feeling 
that it involves the whole question of the guilt or in- 
nocence of the accused, and with a full conviction, that 196 
TRIAL OF ABNER ROGERS, JR. 
an examination of the testimony will satisfy you that there 
can be no rational doubt as to the real insanity of the 
prisoner. 
In the first place, I ask you to recollect the mode 
and time of its commencement. Gardiner, the watchman 
on duty on Monday night, tells you, he heard a great 
outcry, as of a man in distress, and on going to the place 
whence the noise proceeded, he found the prisoner in his 
cell without any clothes, standing near the door, trem- 
bling like a man who had waked up frightened from a 
horrid dream. That he then and there began to tell 
him of hearing voices, and went over the same story of 
his sufferings and fears, as subsequently characterized all 
his statements. This story has been so often repeated 
here, I shall not recapitulate it. Now I ask you, if you 
think it probable, that a man, who was feigning insani- 
ty, would select such a time and place for its commence- 
ment ? When he was out of the way of observation, to 
be approached only by the watchmen on duty, through a 
grated door, and to be seen by the dim light of a lan- 
tern ; this would hardly be the time to select to com- 
mence a fiction which was to answer his fatal purpose, 
and the truth of which he wished to impress, upon others. 
The witness tells you he appeared frightened and trem- 
bling, like a man who had awaked from a horrid dream. 
Ah ! gentlemen, it was not the “ stuff" that dreams are made 
of” that had then possessed itself of the perturbed spirit 
of the unfortunate prisoner. It was a far more “ perilous 
stuff.” It was the first outbreak of that insanity, which, 
over-mastering the reason of the prisoner, held him in its 
grasp, and made him at once a victim and an execu- 
tioner. Mark from this hour its progress ; not instantly 
becoming violent, nor always possessing, to the full extent, 
the mind of the prisoner. On Tuesday, the day following TRIAL OF ABNER ROGERS, JR. 
197 
the first outbreak, you hear only of occasional symptoms 
and outbreaks, still continued during the following night, 
and appearing in more frequent exhibitions on Wednesday; 
till on Thursday, the day of the homicide, you find the 
prisoner entirely under its influence, in great excitement, 
with tears and prayers seeking for deliverance and protection 
from the imaginary evils which impended over him, and 
finally, under an insane impulse of self-defence, striking 
the fatal blows upon him whom he supposed to be the 
author of his danger. I say the whole course and 
progress of the malady, from the time and mode of its 
commencement, not all at once, violent or breaking out 
into frenzy, but still gaining more and more the mastery 
over the mind and will, until it prostrated all reason and 
self-control and drove the prisoner, under an insane and 
ungovernable impulse, to the commission of the act, show, 
that it was the natural and actual access of disease, 
which no man could have simulated. Take it from its 
first manifestation at midnight in his solitary cell, through 
all the details which you have heard on the stand, until 
the consummation of the tragedy, and the mind cannot 
resist the conviction, that the prisoner was the victim of 
a real, will-destroying delusion. Art can 
never equal nature; it may imitate it closely, but you 
can surely detect the imitation. The circumstances and 
events which marked the conduct of the prisoner, during 
the period referred to, are too frightfully real to have 
been the result of fiction. Consider them together, look 
over in your minds the conduct of the prisoner, and the 
circumstances surrounding him, during the three days and 
nights preceding the homicide, and ask yourselves, if it 
be possible to believe that the whole wras the result of 
mere pretence. 
In the second place, I ask your attention to the act 198 
TRIAL OF ABNER ROGERS, JR. 
itself as indicating real insanity in the mind of the pris- 
oner. In forming our judgments of the motives and 
purposes of mankind we must look at their acts, and 
form our estimate of them in the light of reason and 
common sense. Certainly, jurors can have no other 
safe standard to guide their judgments. Now it is often 
the case, that insanity is first manifested in the criminal 
act for which a man is arrested and tried. Sometimes 
the act is the only evidence of insanity.1 The absence, 
too, of the ordinary motives, which might induce some 
criminals to commit crimes, is strong evidence to show 
that the mind must have acted under some insane im- 
pulse. I submit to you, that the act of the prisoner, 
was in itself, the act of a madman, and shows that he 
was insane when he committed it. Look for a moment 
at his situation. He was a prisoner, surrounded by bolts 
and bars and guards, with no hope of escape, but with 
the certainty of detection and punishment. He commits 
the act in open day, without concert with any one, in 
•the presence of fifty witnesses. He selects, a time and 
place where he was sure to be seen. He was not a 
convict for life, or even for a term of years. He was 
to be discharged in September, less than three months 
from the day when the homicide took place. Had re- 
venge been his object, would he not have waited until 
after his discharge from the prison, and then have sought 
his time and place for vengeance with some prospect of 
escape ? If he was cunning and shrewd enough to sim- 
ulate this insanity for the purpose of committing the act, 
as the learned counsel for the government will try to 
persuade you he was, would he not rather have waited 
a month or two and sought his opportunity and his 
1 Taylor’s Med. Jur. 645. Regina v. Oxford, 9 Car. & P. 537. TRIAL OF ABNER ROGERS, JR. 
199 
man with an equal cunning and shrewdness after his re- 
lease ? It is impossible to reconcile his conduct in this 
respect except upon the belief that he was insane. But 
this is not all. There was an entire absence of all mo- 
tive. I challenge the learned counsel for the govern- 
ment to point out to you any immediately preceding 
cause for this act. If the insanity, according to the 
theory of the government, was simulated by the pris- 
oner to enable him to perpetrate the act with impunity, 
we must seek for the motive of the act, prior to Mon- 
day night, when Gardiner first discovered the prisoner 
under the influence of a paroxysm in his cell. The 
motive for the murder must have been prior to the first 
manifestation of insanity, if the latter was to serve as 
the shelter against the punishment for the former. There 
is no fact in the case which goes to show any such 
motive. Rogers had not been punished prior to Mon- 
day. He had not even been censured. The last we hear 
of him, prior to that time, in connection with the warden, 
is from the witnesses who heard him express himself 
pleased with his sentence as a “ second comer,” and 
with the manner in which the warden had spoken of 
him to the court. I ask then for the motive which induced 
the prisoner to feign his insanity and commit the murder. 
I ask you, gentlemen, to judge of the conduct of the pris- 
oner, as you would judge of other men’s conduct. Search 
out a motive for the act. Seek, in the evidence, for some 
proof of a rational, natural, ordinary incentive, which oper- 
ated on the mind of the prisoner, and impelled him to the 
commission of the act; and if you can find any such, I 
concede, then, his guilt is proved. But if I have not mis- 
taken the testimony, this act, which would have required in 
a sane man a strong, plain, overpowering motive, sufficient to 200 
TRIAL OF ABNER ROGERS., JR. 
control and crush all the better faculties of his nature, and 
engross his whole mind and soul in the execution of his 
dreadful purpose, stands alone in all its horror and enormity, 
without one particle of evidence, either by act or word, to 
show that the prisoner had any motive operating on his 
mind, to induce him to its commission. It is, in the lan- 
guage of the author whom I have before cited, one of those 
“ dreadful motiveless murders, which characterize and distin- 
guish the acts of the insane ; ” 1 and if there were no other 
evidence of the prisoner’s insanity, than the entire absence 
of all motive for the act, I should claim his acquittal at your 
hands, with the utmost confidence. Whatever may be the 
result of this trial, I shall ever feel grateful that I am able to 
stand up before you, and on my conscience assert the belief, 
that the prisoner took the life of his victim without motive, 
and under the blind impulse of an insane will. I should 
have wept over the degradation and depravity of human na- 
ture, if I had been compelled to believe, that any man, how- 
ever wicked or degraded, could have deliberately, and with a 
rational motive, committed such an awful crime. 
In connection with this view of the case, and to satisfy 
you that the prisoner was actuated by no sane motive, but 
that the act was done without premeditation, and under some 
sudden impulse, I ask you to look for a moment at the cir- 
cumstances attending the homicide. You will remember, 
that the evidence shows that the prisoner went to Bradley’s 
work-bench, and took a shoe-knife, with which he inflicted 
the fatal wounds, and that the procuring of the knife, and 
striking of the blows were immediate, and almost simulta- 
neous. If the prisoner had acted from a motive, and a pre- 
conceived intent, would he not have supplied himself with 
a weapon, which he would have kept in readiness for the 
1 Taylor, 640. TRIAL OF ABNER ROGERS, JR. 
201 
emergency, about his person, or within his reach ? Would 
he have trusted to the doubtful chance of being able to go 
some distance across the shop, to the work-bench of another 
convict, in the presence of officers and prisoners, in or- 
der to secure the knife ? He did not even seize the knife 
which was on his own bench, and within his reach, which he 
could have taken up without observation, and which, as you 
have seen from inspection was equally well, if not better, 
suited to his purpose. His own knife was pointed, and more 
certain to penetrate, than the one he took from Bradley’s 
bench, which has a square blunt end. These may seem to 
you small circumstances, but they show, to my mind clearly, 
that the prisoner acted without forethought, and under a sud- 
den impulse; that at the moment he saw the warden en- 
tering the shop, under the influence of his delusion, which 
the evidence shows to have been then at its crisis, and in full 
possession of his mind, he imagined the time for his impri- 
sonment in the old prison, and his consequent death, had 
arrived ; that impelled by a fear of his impending danger, 
and with a movement as sudden and irrepressible as the in- 
stinct of self-defence, he rushed upon the object of his fear, 
and averted his own death, by taking the life of the warden. 
How simple, how rational, how clear, is this explanation of 
the tragedy. Will you not believe its truth ? Will you not 
rest satisfied* with this merciful and consistent view of the 
prisoner’s act, rather than endeavor to seek out and discover 
malice and design in his heart ? 
I pass now to another part of the testimony, to which I 
call your attention, as showing the real insanity of the prisoner. 
You will remember that several witnesses testified, that prior 
to the homicide, they had noticed the conduct and appear- 
ance of the prisoner, and had become convinced that he was 
not in his right mind. I need only refer you to the evidence 
of Sargent, Crowninshield, Braman, Gardiner, Savary and 202 
TRIAL OF ABNER ROGERS, JR. 
Bradley, all of whom have testified that they thought Rogers 
insane two or three days previous to the fifteenth of June. 
But it is not this fact alone, which serves to prove conclu- 
sively the reality of the prisoner’s insanity, and the conviction 
which the witnesses felt, that it was real and not feigned. If 
you will recall their testimony, you will find that Sargent, 
Crowninshield and Braman, especially the two former, not 
only believed the prisoner insane prior to the homicide, but that 
they acted on that belief. As early as Tuesday evening, 
Sargent told the warden, that “ Rogers was not right,” and 
asked what should be done with him, and within fifteen min- 
utes of the time of the homicide, Crowninshield had gone in 
search of the warden, in order to persuade him to take imme- 
diate measures for the care and security of the prisoner, as 
being insane, and incapable of taking care of himself. You 
will also remember, that in consequence of Crowninshield’s 
statements to the deputy warden, the latter met Mr. Lincoln 
as he was in the act of passing from the chapel into the 
workshops, and stated to him that it was believed that Rogers 
was crazy, and asked him what should be done with him. 
And here a second time, the warden, as if bent on his own 
destruction, or led on by a destiny which he could not resist 
or control, treats the suggestion with indifference, and without 
asking a question, or making any examination in order to as- 
certain the truth of the statements, he pronounces it “ all a 
sham,” and passes on. The fatal consequences we know. 
A few steps more and the knife of the insane convict had 
penetrated his heart. Oh ! that this unfortunate victim had 
taken counsel' of his fears and not of his experience ! He 
would then have investigated the facts and ascertained the 
truth, instead of prejudging the case, and pronouncing it a 
fiction, merely because other convicts had feigned insanity. 
He would have thus saved his own life and spared his fam- 
ily, the prisoner, and the whole community, the pain and TRIAL OF ABNER ROGERS, JR. 
203 
horror of the awful consequences which ensued. But by the 
divinity that shapes our ends it was otherwise ordered, and it 
is for us to submit in the confident belief, that all things are 
ordered for the best by a wise and beneficent Providence. 
Upon this state of the evidence, then, you have the fact 
clearly established that several persons, officers as well as 
convicts, believed in the insanity of the prisoner prior to the 
homicidal act. I submit that this testimony must have great 
weight upon your minds. Here are impartial witnesses, offi- 
cers of the prison, and intelligent and respectable men, from 
their position and their relations to the prisoner, seeing him 
more frequently, and observing him more closely than any 
other persons, who make up their minds, judging by his con- 
duct and appearance, that he was insane. They so believe, 
they so act. Will you trust in the judgments of these men, 
formed from observation, or will you adopt the theories and 
conjectures of others who saw less of the prisoner, and who 
formed no opinion as to his sanity until after the homicide ? 
It adds immensely to the force and weight of this testimony, 
that these witnesses formed their opinions and acted upon 
them before the fatal act. It proves that they were real 
opinions; that they have not been got up to suit the case, or 
formed after the homicide in order to account for the com- 
mission of the deed, or for the sake of screening the accused. 
We come here with no fictitious case. We show you by 
credible and impartial witnesses its awful reality and their 
belief in its truth before there was any case to be made out. 
Will you disregard such evidence ? Will you set up your 
own judgments as to the insanity of the prisoner above those 
of witnesses who saw him and believed in it, when there was 
no motive or reason for such belief but its actual existence ? 
Here then is an end of the case, if you believe in the testi- 
mony of these witnesses. What evidence do the government 
produce here to impeach it ? None. They prove nothing by 204 
TRIAL OF ABNER ROGERS, JR. 
any witness who saw the prisoner, prior to the act, that invali- 
dates this testimony. No man is brought here among all 
those who surrounded the prisoner at the time, and who saw 
and observed him, to controvert this great and important part 
of the defence. It stands unimpeached and unimpeachable. 
Not one man, (with the exception of Dr. Walker, and of his 
evidence I shall speak hereafter,) who saw the prisoner before 
the fatal Thursday, has been brought forward to prove a fact 
or state an opinion, showing that the prisoner was feigning 
insanity. The evidence is all in favor of the prisoner on this 
point, and I call on you, as you love mercy and regard the 
sanctity of the oath of God, that is upon you, to weigh this 
testimony, and to give the prisoner the full benefit of it in 
coming to your verdict. Nor is it to be forgotten by you in 
considering this part of the defence, that in the annals of 
medical jurisprudence, there is no case on record of simula- 
tion of insanity, prior to the act, for the purpose of avoiding 
punishment. Among all the cases of feigned insanity with 
which the books are filled, there is not one where the sup- 
posed insanity preceded the criminal act. It has often been 
simulated to cover up crime after its commission, but never 
used in anticipation to conceal or disguise a criminal intent.1 
This is a remarkable feature in the present case, and tends 
strongly to show the reality of the prisoner’s insanity. It will 
at least serve to satisfy your minds, that we come here with 
no common case ; that we have not asked your attention to a 
merely formal defence for the purpose of discharging our- 
selves of our duty, but that we stand here to show you strong, 
substantial and convincing reasons for the acquittal of the 
prisoner. 
But, gentlemen, perhaps after all the most conclusive proof 
of the prisoner’s insanity is to be found in some of the cir- 
1 Taylor, Med. Jurisp 630. TRIAL OF ABNER ROGERS, JR. 
205 
cumstances to which the witnesses have testified, in regard to 
the conduct of the prisoner, immediately before and after 
the fatal day. I cannot, without abusing your patience, 
re-state all the particulars which seem to me to be strong in- 
dications, that the prisoner was struggling with a delusion 
which he could not conquer, and which finally overwhelmed 
his reason, and overpowered his will. I shall leave it for you 
to recall the testimony to your own minds, and to consider it 
as bearing on this part of the case. I cannot omit, however, 
alluding to one or two circumstances which show the reality 
of the delusion, and which are entirely inconsistent with the 
theory that the insanity was feigned. Several of the wit- 
nesses have testified that the prisoner, when remonstrated 
with and told that the sounds he heard and the sights he 
saw, were unreal, and that he was laboring under delusion, 
did not deny that it might be so ; but on the contrary, that 
he wrould for the moment seem to realize and admit that it 
was all a mere fancy of his own. You remember that when 
Patterson told him that no one had spoken to him, and that 
there were no such voices as he alleged to have heard, he 
replied, “ can it be all my imagination ? ” And on several 
other occasions, he made replies of a like import. Now, it 
appears to me that a man who was playing a part, by simu- 
lating insanity, and trying to impress others with a belief 
that he was insane, would be unwilling to admit for a mo- 
ment that his supposed delusion was unreal. He would na- 
turally insist upon its truth. He would strive to make others 
think that he fully believed in its reality. He would be the 
last to express a doubt of that which he was using every 
effort to convince others actually existed. So far from yield- 
ing to the doubts of others on the subject, he would natu- 
rally resist, and endeavor to counteract them, by expressing 
his own belief in the reality of the delusion. But such was 
not the conduct of the prisoner. When told that he was 206 
TRIAL OF ABNER ROGERS, JR. 
deceived, and that there was no foundation for his fancies 
and fears, he yields for a moment to the assurance. He 
pauses and doubts. His mind, for an instant, is relieved, 
and he seems to realize that all has been a delusion. The 
reason for a moment struggles to regain its mastery, and is 
again overpowered. How natural is all this, and how unlike 
simulation. 
Then, too, you will remember the fact, that on several oc- 
casions he related to some of his brother convicts the whole of 
the series of pains and annoyances which he had suffered, 
while laboring under his delusion. To Savary and Bradley, 
especially to the latter, on Wednesday morning, he re- 
counted what had taken place, the voices he had heard, and 
the threats which had been made against him, and sought 
for relief from the poison which he supposed was working in 
his frame. All this was done apart, no one being present 
but the prisoner and the convict to whom he was speaking. 
If the purpose of the prisoner was to simulate insanity, in 
order to protect himself from the punishment of his contem- 
plated crime, why did he thus communicate with his fellow- 
prisoners ? His statements to them would be of no avail. 
He knew that they could not be witnesses in courts of justice, 
without an executive pardon, and therefore it was useless for 
him to practise his imposition upon them. How then can you 
reconcile this with the theory of the learned counsel for the 
government ? Does it not show the reality of his delusion ? 
He takes his fellow prisoners apart, and tells them of his 
sufferings, in order that he may receive their sympathy and 
advice. It could not have been done for the purpose of de- 
ception, because he must have known that, in all probability, 
they could not aid him by their testimony. Then, too, 
consider for a moment, his visit to the physician on Thurs- 
day morning, the day of the homicide. Why, if he was 
playing this game of deception, did he voluntarily put him- TRIAL OF ABNER ROGERS, JR. 
207 
self under the scrutiny of so keen and penetrating a man as 
Dr. Walker? Would he not rather have avoided him? He 
knew well, by his own experience, that the physician was 
not much inclined to favor any complaint from him. The 
hospital record will show you that he had been, again and 
again turned away by Dr. Walker from the hospital, with- 
out treatment. He could not surely expect to gain anything 
by an application to him. He goes there in the faint hope 
of obtaining relief. He had suffered during the whole night, 
and in the extremity of his agony, he seeks for medical aid. 
It seems to me most plain, that he would not have thus sub- 
jected himself to the observation and examination of the 
physician, if he had been conscious of trickery and deceit. 
He must have known that they would not avail him, in the 
presence of Dr. Walker, and it was only adding to the 
chances of his detection to expose himself to his scrutiny. 
I cannot omit to call your attention, in this connection, to his 
appearance and mode of approach, when he went up to the 
hospital on that morning. Dr. Walker, in his evidence, 
stated that he drew the inference, that Rogers was attempt- 
ing to deceive him, from his manner when he came up to- 
wards him ; that he walked with his ordinary gait, and that 
there was nothing unusual in his appearance, until in reply to 
his question as to what was the matter with him, he put his 
hands to his head in great excitement, and said he was in 
great pain there. These constitute the facts upon which Dr. 
Walker came to the conclusion that he was endeavoring to 
practise a deception upon him. But to my mind, and I 
think to yours, they are the most convincing pioofs that he 
was actually suffering under the delusion of which he had 
complained. If his purpose had been to impose upon Dr. 
Walker, he would have come toward him not in his ordinary 
manner, but so as to attract attention, and prepare him for 
some unusual development. He would have exhibited some 208 
TRIAL OF ABNER ROGERS, JR. 
signs of violence or frenzy; he would have over-acted his 
part, like all other men who have feigned insanity. It was 
only when he spoke of the pain and suffering in his head, 
that he betrayed excitement, or even used a gesture ; and 
then he did not go into a detail of his insane imaginations, 
but only stated he had a pain in his head, and could not 
govern his mind. All this, I submit, was the natural, ordin- 
ary, proper conduct of an individual, situated as the pri- 
soner then was. It indicates the reality of the existence 
of the delusion in his mind, and satisfies me that it was no 
fiction. 
But further, if the prisoner’s motive, as the learned coun- 
sel for the government will contend, in feigning insanity, was 
to kill the warden, and screen himself from punishment, why 
did he go to the hospital on the morning of that day ? Why 
did he seek for relief at all ? If the physician had thought 
proper, upon examination, to put him on the sick list, he 
would have remained in the hospital, where he could not 
have reached the warden, and where there were no means 
which he could use to accomplish his purpose. If he at that 
time harbored the intent to kill the warden, and had been 
simulating insanity to secure impunity, he would have sought 
to keep himself where he could most easily approach the 
warden, and most readily secure his weapon. He voluntarily 
went to the hospital, where he would not meet the warden, 
and applied for admission, on the morning of the day when 
the homicide was committed; he went there in the ordinary 
mode and for a proper purpose, and his deportment while 
there was neither irregular or violent. Can you believe that 
he did all this and at the same time cherished in his heart 
the deadly intent which he so fatally executed on that day ? 
It cannot be; he took precisely the course which he wTould 
not have taken if such had been his object; and I challenge 
the learned counsel for the government to reconcile this por- TRIAL OF ABNER ROGERS, JR. 
209 
tion of the prisoner’s conduct with the theory of his feigned 
insanity. 
The last circumstance to which I wish to call your atten- 
tion relates to a feature in this case which, of itself alone, is 
convincing proof, to my mind, of the actual insanity of the 
prisoner. I refer to his calmness after the homicide and the 
speedy disappearance of all symptoms of mental alienation. 
I know the attorney for the commonwealth will urge upon 
you this very fact as indicating the truth of his theory. He 
will ask you if it be possible to believe, that an insanity, so 
violent and overpowering as to cause the prisoner under its 
influence to take human life in such a barbarous manner, 
could pass away in a few hours or days and leave him as calm 
and collected as ever ? There would be some plausibility 
and force in this argument, if it did not involve an inconsis- 
tency and absurdity which the ingenuity of the learned coun- 
sel cannot reason away or wink out of sight. If the motive of 
the prisoner was deception, and he was playing a deep game 
in order to screen himself from punishment; he would not 
surely have abandoned the attempt at the very time when it 
was most important for his security that he should continue 
it. He had committed the act; he had at once become an 
object of attention and scrutiny ; the time had come, if ever, 
when he must avail himself of the opinions and observations 
of those who saw him, in order to establish the belief that he 
was insane, and thus save himself from the punishment of 
his crime. Now what was the conduct of the prisoner ? For 
two or three days subsequent to the homicide, he appears 
wild, incoherent and restless, still recounting his sufferings 
and reiterating the story of his delusions. Soon, however, at 
intervals, he begins to appear more calm and natural, speaks 
of his delusions as if he was referring to some awful reality 
that had passed away, and gradually regains his reason and 
self-control. From that time to the present hour he has 210 
TRIAL OF ABNER ROGERS, JR. 
shown no outward signs of mental disturbance. Now my 
view of this part of the evidence is, that if the prisoner was 
feigning insanity at the time when he committed the act, he 
would have continued that fiction to the present hour. He 
would not stand at that bar, as you now see him, calm and 
rational. He would not have remained in his cell at the jail 
quiet and peaceful. He would have followed in the track of 
all others who have endeavored to use insanity as a protection 
from punishment. You would have had witnesses fyere by 
scores to prove his strange conduct and violence and threats 
during the whole period, from the commission of the act to 
the hour of trial. You would have seen him before you at 
the bar, with wild and distracted looks, endeavoring to enlist 
your sympathies in his behalf, and to convince you of the 
reality of his insanity by the evidence of your own eyes. 
But not so with the prisoner ; he has made no such attempt. 
I should have trembled for his safety, if we had come before 
you with such a case. We show you no overacted or ex- 
travagant conduct or appearances. We rely on the facts 
as they are. We prove to you the delusion of the prisoner; 
its rise, progress and termination. We admit that it ceased 
within a few days after the homicide, and that there has been 
no return of the symptoms ; and upon this evidence, we say 
we have proved our defence. I thank the learned counsel 
for the government for putting into the case the testimony 
of the officers of the jail, as to the quiet and rational con- 
duct of the prisoner since he has been there confined. What 
better evidence could you have of the truth of our defence ? 
If the prisoner feigned insanity in the state prison, would he 
not have continued to feign it while in jail ? If he could de- 
ceive the officers of the prison, could he not also deceive 
those at the jail? Would not their evidence have availed 
him here before you to make out his defence, as well as that 
of the officers of the prison, and does not the fact, that he TRIAL OF ABNER ROGERS, JR. 
211 
has shown no signs of delusion or insanity since the first few 
days after the commission of the homicide, satisfy you that 
he has been playing no game of deceit, but that his defence 
is substantial and true. I submit to you, with the fullest con- 
fidence, that this calmness of the prisoner, this absence of all 
attempt to prolong the symptoms of delusion, his apparent 
restoration to reason, and his continued quiet and peaceful 
conduct during the interval since the commission of the act, 
all show the reality of tfie prisoner’s insanity, and wholly 
destroy the theory of the learned counsel for the govern- 
ment, that it was simulated by the prisoner to protect him- 
self from punishment. 
But there are some parts of the evidence which confirm, 
beyond all doubt, the truth of our defence. I have already 
cited to you from works on medical jurisprudence some of 
the symptoms which frequently accompany mental disease. 
Among these, two of the most common attendant signs are 
sleeplessness and a rapid pulse, the latter especially in recent 
cases.1 Now the evidence shows clearly that for several nights, 
both before and after the homicide, the prisoner was awake at 
almost all hours of the night, and that he constantly complain- 
ed of a want of sleep. It was in the night that he suffered 
most from his delusions, and made the outcries to which the 
witnesses have testified. He was always found by the officers, 
and others who went to him, awake and out of his bed, and 
in a state of great excitement, and, from the whole tenor of 
the evidence, it is clear that from Monday night, during the 
whole of the week, he scarcely slept at all. You have then 
here a symptom of insanity almost infallible, and which, 
as the books and the medical witnesses tell you, ahvays ac- 
companies mental disturbance, strongly manifested in the pris- 
oner. It is a symptom, too, most difficult to feign. The 
1 Beck’s Med. Jurisp. 352. 212 
TRIAL OF ABNER ROGERS, JR. 
prisoner could not have known it to be a necessary accompa- 
niment of insanity. He would have taken his ordinary rest, 
if he could have obtained it. If his purpose was to feign in- 
sanity, the day would have answered his purpose, and at night 
he would have sought his natural repose. Nature, too, would 
have asserted her right, and he could not have resisted the 
approach of sleep for so long a time, if his mind had been at 
rest. How, then, can you reconcile this fact with any theory 
but that of his real insanity? We have no evidence of the 
condition of the prisoner’s pulse, until after the homicide. It 
is much to be lamented that no proper medical examination 
was made of him previous to -the act. If on the morning of 
the fifteenth of June, when he went to the hospital and saw 
Dr. Walker, he had been fully examined, we could have com- 
pared his previous condition with that which was subsequently 
found by Dr. Bell, and thus have arrived at more certain and 
safer conclusions. But, as it is, we must judge of his bodily 
condition and symptoms by the evidence before us. Dr. Bell 
saw him on Saturday, about thirty-six hours after the death of 
the warden, and then found his pulse about 100, and from 
that time, for a fortnight or more, during repeated visits, his 
pulse, with one exception, was found to be over 100, and once 
as high as 120. Now, gentlemen, whatever else the ingenuity 
of man may do, he cannot control the beating of his heart. 
He cannot feign its pulsations. He cannot regulate the courses 
of his blood. He cannot, at his bidding, hasten or retard its 
flow. Too often, indeed, is he the “ puppet of the spring of 
the capricious blood,” but he can never restrain it or subject 
it to his will. The condition of the prisoner’s pulse, as stated 
by Dr. Bell, is conclusive proof that he was suffering under 
some mental or bodily disease, and when connected with the 
other symptoms which had manifested themselves during the 
week previous, solves the mystery of this whole casS. In this 
there can have been no fiction. Amid the difficulties and TRIAL OF ABNER ROGERS, JR. 
doubts which may hang over other parts of this case, to per- 
plex your minds and embarrass your judgments, you have 
here a clue to guide you in your conclusions, and to enable 
you to come to a result, alike consistent with humanity and 
truth. 
And now let me call your attention to the peculiar nature 
of the insanity under which the prisoner was suffering. It 
appears by the evidence to have been a delusion, accompanied 
by the hearing of “ false voices,” and at times with a derange- 
ment of the senses of taste and smell. This form of insanity, 
as all the medical men have testified, is one, which, within 
their own experience, they have never known counter- 
feited, nor is there any instance on record in the books of a 
simulation of this peculiar kind of delusion. It is, too, of 
rare occurrence, but little known, except among those familiar 
with mental diseases, and from its nature and peculiarities 
most difficult, if not impossible to be feigned, even by those 
who know its characteristics, so as to escape detection. And 
yet you are called upon by the learned counsel for the govern- 
ment to say, by your verdict, that the prisoner at the bar has 
had the skill and ingenuity to simulate this form of delusion 
so successfully, as to deceive all those about him, and even a 
man of the experience and knowledge of Dr. Bell. Can it be 
that a man, who has passed the greater portion of his mature 
life in the confinement of a penitentiary, who, according to 
the statement of the learned counsel for the government, was 
brought up in ignorance, and can neither read nor write, 
could counterfeit this form of insanity, and so successfully imi- 
tate its remarkable and extraordinary symptoms, as to baffle 
the scrutiny of the most skilful and practised observers, who 
were in search of some signs of his deception and imposture ? 
Can you believe that this ignorant prisoner could all at once 
conceive and counterfeit this delusion, in all its nice and deli- 
cate peculiarities, with a perfect consistency and without be- 214 
TRIAL OF ABNER ROGERS, JR. 
traying its falsity in the slightest degree ? And yet you must 
believe all this, before you can set aside the defence which we 
urge here in behalf of the prisoner. This case would 
have presented itself to you in a far different aspect, if we 
had shown you the common and ordinary form of insanity, 
with its violence and raving madness, so well known and so 
easily imitated, in excuse for this defendant: but it stands be- 
fore you now without a parallel or a precedent. You are to 
say whether this prisoner has outstripped all former criminals 
on record, both in the enormity of his crime and in the cun- 
ning, audacity, and skill with which it was perpetrated ; or 
whether he has been the victim of a delusion, which forced 
him to the act, and which is to exempt him from its conse- 
quences. I have no fears in submitting the prisoner’s case to 
your judgment upon this issue. 
To all these circumstances there is yet another fact to be 
added, confirmatory of the reality of the prisoner’s delusion. 
Dr. Walker stated, in the close of his evidence, that he knew 
the prisoner was an onanist; and all the other medical men 
have told you that this habit of self-pollution is a fruitful 
cause of insanity, and frequently of this peculiar kind of men- 
tal disease. Indeed, no one could have looked over the re- 
cords of our hospitals, and been ignorant of this fact. Here, 
then, from a witness for the government, you have the cause 
of the prisoner’s delusion. In this soul-destroying and de- 
grading habit, which pervades so extensively our prisons, you 
find the origin of his malady. What an awful illustration is 
this of the curse pronounced by the Almighty upon him who 
shall thus pollute and dishonor his nature! But in God’s 
hands, and not in ours, is the right and the power to punish 
such transgressions. “ Vengeance is mine : I will repay, saith 
the Lord.” 
In addition to the facts and circumstances connected with 
the conduct of the prisoner, at and about the time of the ho- TRIAL 01” ABNER ROGERS, JR. 
215 
micicle, which have been shown here to satisfy you of the 
unsoundness of his mind, there is another part of the testi- 
mony to which I must briefly allude, as being a strong con- 
firmation of the grounds of our defence. I now refer to the 
evidence given by the father and other relatives of the pris- 
oner concerning his bodily and mental condition, and that of 
several of his family, and also of his strange and irregular 
conduct at certain periods of his life. We prove to you that 
the prisoner was a weakly child, subject to fits in infancy ; 
that one of his brothers was a non compos, disposed to vio- 
lence and mischief; that his relatives, on his father’s and 
mother’s side, have been subject to insanity ; and that the 
prisoner himself, before his commitment to prison, often ex- 
hibited signs of restlessness and excitement, accompanied by 
sleeplessness and other symptoms of derangement, which at- 
tracted the notice of those about him. It is a well establish- 
ed fact, laid down in all medico-juridical works,1 and testified 
to here by all the medical men on the stand, that insanity is 
transmitted often from generation to generation, and that its 
existence in one portion of a family frequently indicates a pre- 
disposition to it in others of the same family. We offer this 
evidence to show that the prisoner was constitutionally dis- 
posed to insanity, and that his delusion may, in connection 
with other causes, have arisen from an hereditary inclination 
to the disease. We offer it to satisfy your minds, that it will 
be more safe, more humane, more just, more in accordance 
with the evidence, for you to acquit the prisoner, even if it 
be on this ground alone, than it would be to convict him on 
the unsupported theory of the learned counsel for the govern- 
ment, that his insanity was a mere fiction. 
But, gentlemen of the jury, passing over without comment 
all other parts of the case, I come now to dwell for a moment 
1 Beck’s Med. Jurisp. 350- 216 
TRIAL OF ABNER ROGERS, JR. 
on the only remaining portion of the testimony to which I 
shall specially ask your attention. I refer, of course, to the 
evidence of the medical witnesses. The wise and humane 
provision of the law, by which the evidence of scientific 
men is allowed to enlighten and guide jurors in their investi- 
gations, is beautifully illustrated in the case before you. * You 
are not compelled to seek out the truth in darkness and un- 
certainty, but the light of science comes in to direct and aid 
you. It is most fortunate for the prisoner, for you, for us all, 
that Dr. Bell was called to visit the prisoner so soon after the 
homicide. His testimony is of inestimable value. He saw 
the prisoner frequently, and examined him critically. He 
visited him, as he tells you, believing that he was simulating 
insanity. He applied to him the severe scrutiny of his own 
great skill and abundant experience, and all the tests within 
his knowledge, to detect the deception. He comes here upon 
the stand, and testifies before you, in language which I will 
not weaken or impair by repeating, the conclusions to which 
his investigations brought him, and the reasons upon which 
they were founded. He tells you that, in his opinion, the 
prisoner was insane at the time of the homicide. And Drs. 
Woodward and Ray, who have attended this whole trial, and 
heard the evidence, "confirm, upon their oaths, this opinion. 
I shall not comment upon the testimony of these witnesses. 
I shall not recapitulate their statements. I am sure they sunk 
deep into your minds, and that you need no repetition of 
them to impress them on your recollections. I may say with 
safety that in no state or country, can witnesses be found 
more skilled, more experienced, more learned in this interest- 
ing branch of medical jurisprudence, than the three medical 
men who have testified in behalf of the prisoner. They have 
given you their opinions, without hesitation or qualification, and 
it is your high and solemn duty to decide how far they shall 
influence your verdict. I do not ask you to surrender to TRIAL OF ABNER ROGERS, JR. 
217 
them your own judgments. Such is not the duty of jurors. 
They are to form their own opinions upon the evidence before 
them, independently and without undue influence. All I ask 
is, that you shobld give to this testimony its full weight. Do 
not be led to distrust or reject it, because you may hear the 
learned counsel for the government call it the evidence of 
mad doctors, or other hard names. It is legal evidence ; it is 
given under oath ; and you are to believe and act upon it, 
unless it is impeached or contradicted. I put it to you, then, 
that you are to be satisfied by the evidence, that these medi- 
cal men are all mistaken, and that their opinions are not sup- 
ported by the facts, or you must acquit the prisoner. 
And what testimony is brought here by the government to 
control or impair the credit you are to give to these medical 
witnesses ? If any such evidence could have been obtained, 
do you think that the indefatigable and industrious attorney 
for the commonwealth would have failed to have had them 
here? You have already seen that he has canvassed the 
state’s prison for his witnesses, and has even gone to the 
house of correction to procure evidence to sustain his cause. 
With all the power of the government at his control to seek 
out and procure materials for his case, think you he would 
have failed to support it in this essential part, if he could 
have found witnesses suited to his purpose ? He has the 
same right as we have, to put physicians of skill and expe- 
rience on that stand to contradict our testimony, and to give 
their opinions as to the insanity of the prisoner. Why has 
he not done it? I submit to you, that the reason is, he 
could not find a medical man who would so testify. No man 
would have the hardihood to appear before you to give such 
evidence. I submit to you, therefore, that this part of our 
case is uncontradicted, and that it is not possible to obtain 
evidence by which to assail it. But I suppose the learned 
counsel will contend that you are to consider the testimony 218 
TRIAL OF ABNER ROGERS, JR. 
of Dr. Walker as contradicting that of Dr. Bell, and in some 
measure as controlling that of the other medical witnesses. 
He cannot, I think, use it for the latter purpose, because he 
has not ventured to call him to the stand and ask him the 
question which the law requires him to ask, and which we 
have put to the medical witnesses for the defence. He can- 
not, therefore, avail himself of Dr. Walker’s evidence to attack 
the opinions given by Drs. Woodward, Ray and Bell, and 
which they have formed by hearing the whole evidence in 
the case. But Dr. Walker has expressed his opinion as to 
the sanity of the prisoner derived from his interview with him 
at the hospital on the morning of the homicide, which con- 
flicts directly with that of Dr. Bell, as formed from his obser- 
vations of the prisoner subsequent to the fifteenth of June. 
The learned counsel will doubtless contend, as he has done 
before, that the opinion of Dr. Walker is better entitled to 
your confidence than that of Dr. Bell. I am willing to put 
the prisoner’s case upon this issue. I would gladly avoid the 
necessity which compels me to state my views of Dr. Walker’s 
position in the present case; but I should be wanting in my 
duty to the prisoner if I hesitated for a moment to speak 
freely and fearlessly on this portion of the evidence against 
him. T take the ground that the opinion of Dr. Walker as 
to the sanity of Rogers on the morning of the 15th of June, 
is entitled to no confidence whatever. Recall to your minds 
his testimony as to what took place in the hospital on that 
morning, and ask yourselves whether he took any proper 
measures to ascertain the mental or even bodily condition of 
the prisoner. He saw him but a few moments. He entered 
into no examination of his symptoms : he made no inquiry 
of others as to the conduct or appearance of the prisoner; 
he did not ask whether he had passed sleepless nights; he 
did not even deign to feel his pulse or look at his tongue. 
He coldly tells him, “ I understand this. Do your part TRIAL OF ABNER ROGERS, JR. 
219 
toward receiving kind treatment and you will receive it,” 
and thus dismisses him without examination and with ex- 
pressions of reproof and censure instead of words of kind- 
ness and comfort. For my own part, I cannot conceive of 
anything better calculated to lacerate the feelings and excite 
to the highest pitch the already distracted mind of the 
prisoner, than such a reception by the physician of the prison. 
Can you wonder that he then abandoned himself in despair 
to the horrors of his delusion, and gave himself up to be 
its unresisting victim? Upon this state of facts I think I 
am safe in saying, that Dr. Walker did not perform his duty, 
and that you cannot rely on his opinion. Compare his treat- 
ment of the prisoner and the examination he made of the 
case, with the rules laid down for the guidance of medical 
men in such cases. In Beck’s Medical Jurisprudence, a 
work of the highest authority, I find the following statement 
of the duty of a physician in such cases. “ It is his duty, 
and should be his privilege, to spend several days in the ex- 
amination of a lunatic, before he pronounces a decided opin- 
ion. If this be allowed to him, and also if he be enabled to 
obtain a complete history of the antecedent circumstances, 
much may be effected towards forming a correct opinion.” 1 
And then follows a catalogue of thirteen different tests, 
which are to be applied in order to ascertain the true con- 
dition of a patient, nine of which would have been applicable 
to the case of the prisoner. Take this as your standard, (and 
you cannot find a better,) and you will be able to judge how 
far Dr. Walker performed his duty in the present case, and 
whether you are to give greater credit to his evidence or that 
of Dr. Bell. The truth is, and it cannot be disguised, that 
Dr. Walker made no examination of the prisoner whatever. 
He was prejudiced against him, and supposed him to be re- 
1 Beck’s Med. Jurisp. 350, 351. 220 
TRIAL OF ABNER ROGERS, JR. 
fractory and ill-tempered. He had so regarded him for a long 
time, as is manifest by an inspection of the hospital record, 
by which you will see, that from February to June, 1843, he 
made no less than ten unsuccessful applications at the hos- 
pital, and was sent away by Dr. Walker without treatment. 
Under these circumstances, gentlemen of the jury, the posi- 
tion of Dr. Walker is an unfortunate one. On him, in some 
measure, as it seems to me, rests the responsibility of the sad 
consequences which ensued on the last day he sent the 
prisoner away from him without examination. He does not 
stand before you in this matter an impartial and unprejudiced 
witness. I repeat that I have stated this view of Dr. Walk- 
er’s evidence with great reluctance. I know his eminence in 
his profession, and 1 doubt neither his ability nor his will to 
discharge his duties skilfully and faithfully, but I submit that 
in this case he made a sad mistake, and is not entitled to your 
confidence. 
I should do great injustice to my own feelings if, before 
closing my remarks upon the evidence, I did not allude to 
the testimony of the Rev. Mr. Dwight, and to the course 
which he has adopted relative to this case. I do this, be- 
cause at the former trial, his conduct and motives were se- 
verely and as I thought, unjustly attacked by the learned 
counsel for the government in his closing argument on that 
occasion. I will not detain you by dwelling on the particu- 
lars of Mr. Dwight’s evidence. I will only ask you to con- 
sider it and give to it such weight as you think it entitled. 
You cannot doubt his sincerity or the truth of his statements, 
and many of them are of great importance and strongly con- 
firm other parts of the evidence for the defence. But I must 
take occasion to say, that any imputation upon his motives is 
unjustifiable and without cause. What wrong motive could 
he have had ? The head and front of his offending seems to 
have been, that he went to Dr. Bell and solicited him to see TRIAL OF ABNER ROGERS, JR. 
221 
the prisoner. He was anxious to ascertain the truth. He 
did not wish the innocent man to suffer nor the guilty man 
to escape ; and he therefore sought for such aid as would 
best enable him to attain these objects. If it was a fault in 
Mr. Dwight that he caused the light of science to penetrate 
the dark cell in which the prisoner was confined; that he ad- 
dressed to him words of kindness and joined with him in 
prayer to God, then he deserves censure and reproach at the 
hands of the learned counsel for the government. For my 
own part I would rather have the consciousness of duty well 
performed, which he has at this hour, than all the wealth or 
honor which the world can bestow. 
In determining as to the insanity of the prisoner, I must 
ask you to consider the question distinct and separate from 
the crime. You will thus be able to come to a more correct 
decision upon the real matter before you. It is natural that 
you should feel a horror for such a crime, and a strong desire 
that it should be punished. But you are to take care, that in 
your eagerness to punish the homicide, you do not overleap 
the rules of law and of evidence. You are bound to deter- 
mine the question of the prisoner’s insanity in the same man- 
ner as if you were trying the validity of a will or any civil 
cause. You are to require no greater amount of evidence in 
this case than in any other, and if it is sufficient to satisfy 
your minds that he was insane, you are to render your verdict 
of acquittal regardless of consequences. 
The learned counsel for the government, in endeavoring to 
convince you that the prisoner was simulating insanity at 
the time of the homicide, in order to escape punishment, 
seems to have overlooked an inconsistency in which his 
theory necessarily involves him and his case. He has Al- 
ready, in his opening, stated to you that the prisoner showed 
his malice and deliberate purpose, by the words uttered by TRIAL OF ABNER ROGERS, JR. 
him, at the moment of the homicide, to which Jaquith has 
testified, and also by the expression to Warren B. Parker, 
immediately after the act, that “ he had fixed the warden.” 
Now if the prisoner were cunning and shrewd and cautious 
enough to,, feign insanity before hand, in order to effect his 
purpose, and escape punishment, and to simulate it so success- 
fully as to deceive the most intelligent and skilful persons about 
him, would he have used expressions which would afford the 
strongest proof of his sanity ? How can you reconcile his 
deliberate avowal of the act as one premeditated, and his 
open declaration that he had committed it, with the theory of 
his simulation of insanity ? He had, the learned counsel 
says, pretended to be insane, and at the same time uttered 
language, which effectually exposed his pretence. If I am 
not mistaken, here is an inconsistency utterly irreconcilable 
and beyond the reach of explanation, except upon the ground 
that he was actually insane. 
There were other points in the evidence, which I had in- 
tended to notice, but which I pass over in silence, having 
already exhausted my strength, and wearied out your pa- 
tience. I feel that I have discharged my duty imperfectly, 
and that the prisoner’s fate must, after all, mainly depend 
upon you. To your hands I cheerfully submit his cause. 
He stands at that bar now with no other defence than is to 
be found in the justice of his case, and in the humanity, in- 
telligence, and candor of a jury of his country, aided by the 
instructions of an impartial and learned court. You are 
about to discharge the most solemn duty which can fall to 
the lot of a citizen, in our republic; nay, more, the most 
serious and responsible task which can rest upon members 
of a Christian community, is now devolved upon you. Feel 
this solemn responsibility. Upon your consciences, and 
your oaths, try the prisoner ; and may God grant that TRIAL OF ABNER ROGERS, JR. 
223 
the result of your deliberations shall be such as to vindicate 
the majesty of eternal truth, and uphold the sacred cause of 
justice. 
Mr. BigElow concluded at thirty-five minutes past five 
o’clock, P. M., and thereupon Mr. Parker commenced the 
closing argument for the commonwealth. He spoke sub- 
stantially as follows: 
Gentlemen of the Jury — It now devolves on me to 
address you in behalf of the commonwealth in the close of 
this important cause, of such vast importance to the prisoner, 
and no less so to the community in which we live. 
« If his fate alone was involved in it, it should require of you 
the most careful examination for his sake ; it would be but 
the duty you owe to him, to proceed with the greatest care. 
But there is a duty, also, you owe to your fellow-citizens, to 
the public, to yourselves, and to God. A great and atrocious 
homicide has been committed; a highly valued and respecta- 
ble citizen, at the head of one of the most important insti- 
tutions of the commonwealth, has been, without a moment’s 
warning, stricken down and cut off in the midst of his use- 
fulness ; his widow and orphans at once deprived of their 
protector and friend, and society of one of its best mem- 
bers ; and he, whose head devised that cruel outrage, and 
whose hand is stained with that innocent blood, is confessedly 
before you for judgment. What then is your duty to your 
country and to mankind, to yourselves and to heaven, but to 
hold the perpetrator of so fatal a deed to the strictest proof 
of his alleged excuse or justification ? For the safety of other 
men, for the protection of all other officers exposed to the 
dangerous assaults of wicked offenders, you are to see that 
such an assassin shall not go unpunished, if his defence be 
not clearly made out beyond a reasonable doubt. This great 224 
TRIAL OF ABNER ROGERS, JR. 
question it is your duty to the prisoner and to the common- 
wealth to decide carefully and justly. 
It was with regret I heard the junior counsel close his very 
elaborate speech to you, by beseeching you to be merciful, as 
you might wish to find*mercy. I have considered such ap- 
peals as attempts, (inconsiderate, and perhaps therefore par- 
donable,) upon the personal honor and integrity of jurors 
who are under oath to speak the truth according to the evi- 
dence — as endeavors to lead them into a temptation to de- 
part from the testimony, and give way to compassion. We 
are not now in the temple of Mercy, but of Justice, and there 
is no good reason to suppose that Heaven will ever be mer- 
ciful to those who violate their oaths, their conscience, and 
their public duty by a misplaced and morbid sympathy for 
a prisoner, after a deed of such atrocity, avowedly perpetrated 
by him. There are cases where mercy to culprits is cruelty 
to mankind. But if sympathy is to sway us on this interest- 
ing occasion, let us not wholly forget the victim in his un- 
timely grave, his bereaved wife, his orphan children, his 
afflicted brothers and relatives ; let us not entirely forget those 
of our fellow-citizens who are at this moment exposed to the 
savage ferocity of profligate men, and whose safety may de- 
pend upon the justice this day done in this place. Yet this 
is no place for the indulgence of feelings after all on the one 
side or the other. The sterner duty of investigating the truth, 
without partiality or favor, to any one, now belongs to you, 
and demands all the powers of your minds to do right, to de- 
cide truly, to follow conscience, unbiased by your affections 
or feelings. You have nothing to do with the consequences 
of your verdict, those consequences belong to the law, to 
legislators, to the providence of God ; and you ought not to 
look at them for any other purpose than to impress on your 
minds the obligation of honestly and carefully proceeding in 
your investigations, and coming conscientiously and rightly to TRIAL OF ABNER ROGERS, JR. 
the just and true decision of this important issue. If what 
the junior learned gentleman also said of the overruling 
providence of God be true, as doubtless it is, there can be 
no judicial murder, and there can have been no judicial mur- 
ders, for not “ a sparrow falls ” without his consent. And 
you need be under no terror in declaring the guilt of the ac- 
cused if your conscience (the vicegerent of God upon earth) 
tells you he is guilty. There is a tribunal which cannot err, 
and can rectify the errors of all others; you should imitate 
its justice and judgment. But were any error or mistake to 
be made by you, or if anything hereafter were to be discover- 
ed favorable to t.he prisoner, of which now he cannot have 
the benefit, even under our laws, there is a source of mercy 
which can save him if he ought to be saved ; and doubtless the 
benevolent efforts which have incurred so much labor in pre- 
paring his defence will go onward to that constitutional foun- 
tain of clemency for his relief, if there is necessity for such 
relief, and if it ought to be asked for or granted. Con- 
sider, then, that if firmness is ever a virtue, it is when it is ful- 
filling the dictates of justice ; and no one should ever think, 
that in this age, in this community, under our laws, there 
would be a deficiency of mercy mingled with justice in the 
place where it ought to be found. Perhaps no greater proof 
could be given of the benevolence and fairness of our system 
of jurisprudence than this trial exhibits. A poor, miserable, 
and profligate young man, of bad character, without money, 
and without friends who are able or willing to assist him, 
commits an atrocious deed which fills the whole community 
with horror, and his life is to be the forfeit of the act if he 
cannot be defended. The court assign him eminent and 
able counsel, one of them most intimate with the concerns of 
the state prison ; both bound to help him to the extent of their 
ability ; the commonwealth opens its treasury to him; his 
father, and relatives and witnesses are paid from the public  TRIAL OF ABNER ROGERS, JR. 
chest to come and testify for him; the heads of two of the 
most important institutions in this state, (the lunatic hospitals) 
one public, the other private, and another medical gentle- 
man from another state, spend whole days in court, travel- 
ling many miles, and leaving their important stations to 
come twice to his rescue. Culprits are pardoned to make 
them competent witnesses for him; nothing is denied, every 
thing afforded to him, as if he was the most wealthy and im- 
portant member of society. Can anything be more honorable 
to the character of this commonwealth for liberality and 
mercy ? You need not fear, then, to do your duty. Under 
such laws, with such a public care, under the superintending 
guidance and control of so wise a court, no wrong can be 
done to him. In your pursuit of truth, which is now your 
only duty, you will not shut your eyes to it, for fear of the 
consequences of your seeing and declaring it. You will not 
permit ah inconsiderate compassion, however amiable, to un- 
dermine the foundations of justice, or to shield a malicious 
and responsible culprit. 
Let us then consider, for a moment, what is expected of 
you, and what it is your duty to do, in the solemn position in 
which you are now placed. 
You are to inquire and decide if one of your fellow- 
citizens, in a most responsible office, has been killed. 
2. Who killed him. 
3. What is the character of the homicide. 
4. Whether there is any excuse or justification for the 
deed. 
After such a protracted introduction of testimony, taking a 
very wide range, it is useful to go back to see what the issue 
is — upon what points the counsel differ — what are the real 
questions you are to decide. They lie in a much narrower 
compass than is supposed. The disputed questions are few, 
the law is clear, and there is but a single point of difficulty. TRIAL OF ABNER ROGERS, JR. 
227 
Let us see how far we can proceed upon a solid foundation, 
upon facts fully proved, or undenied. 
First. It is true, beyond all controversy, that Mr. Lin- 
coln was hastily and unlawfully slain in the shoe-shop in the 
Massachusetts State Prison, on the afternoon of the 15th of 
June last. 
Second. It is equally true that Abner Rogers, Jr. then 
and there killed him. 
Third. It is also certain that that homicide is murder or 
manslaughter, if perpetrated by an accountable moral agent 
— murder, if committed with malice aforethought, express or 
implied — manslaughter, if upon a sudden gust of passion, or 
an uncontrollable impulse without previous malice. 
This, then, is the whole case, if —Fourthly, the perpetrator 
of the deed was an accountable moral agent. 
The case then depends upon your decision of this single 
question — Was Abner Rogers, Jr. an accountable, moral 
agent at the time of the homicide ? 
1. It will be my duty to call your attention to the facts, cir- 
cumstances and arguments, demonstrating that he was at that 
time and place “ a person of competent understanding to dis- 
tinguish right from wrong,” in the language of the definition 
of murder, and an accountable moral agent. I adhere to this 
criterion of sanity, notwithstanding what each of the learn- 
ed counsel has said against it, because it is the language of 
this Court, and the law of Massachusetts. 
2. I will ask your attention to my view of the facts, 
circumstances, and arguments which the prisoner’s coun- 
sel adduce as evidence of his insanity, total or partial; and 
I will endeavor to convince you of their fallacy and futility, 
making a weak case on their side, notwithstanding the 
medical testimony they have enlisted in his behalf, to which I 
shall specially ask your attention ; contending, in behalf of 
the Commonwealth, that, at the time of the homicide, Abner 228 
TRIAL OF ABNER ROGERS, JR. 
Rogers was an accountable moral agent, capable of self- 
government, and of distinguishing right from wrong. 
3. I will then collect and lay before you the evidence both 
of express and implied malice, showing you the homicide has 
the characteristics of murder. 
4. Should I fail in this, I shall contend that if you believe 
him to have been partially insane, and excited at the sight of 
the warden with a strong impulse to attack him, yet if he had 
reason enough left to control that impulse, and did not so 
control it, then, like the act of a man of strong passions 
under strong provocation, real or imaginary, the crime at least 
is manslaughter, without previous malice. 
In considering what the government ought to prove to 
show he was a moral agent, I must first ask your attention to 
the presumptions of law. 
The law presumes every man to be rational, until the con- 
trary is proved. Man is a creature endowed with reason. 
He is above the brutes ; it is his nature to be rational. The 
law presumes him to be a moral agent, a free agent, account- 
able for his actions, governed by his own will, and capable of 
distinguishing right from wrong. Laws are enacted for the 
government of mankind, upon the presumption that they are 
rational and accountable beings; that they can understand 
laws, and are bound to be controlled by them, and are pun- 
ishable if they violate them. All religion is founded on the 
same fact and presumption; all municipal law stands on this 
basis. We begin then with this presumption of law, which in 
the first place is enough, until overthrown by proof of the con- 
trary, by something besides the foolish talk and idle preten- 
sions of a lazy and disobedient convict. 
We next look to the history of Abner Rogers, Jr.; and I 
have never seen an attempt to prove insanity from a man’s 
history more abortive, some supposed specimens so frivolous, TRIAL OF ABNER ROGERS, JR. 
229 
indeed, as to be almost ludicrous. His fits in infancy disap- 
peared at seven years old. We know nothing of their nature 
or consequences ; there is no doctor to tell us. The gash in 
the face with the broken scythe was slight on the forehead, 
and the wound on his nose did not affect his understanding. 
His groans in his sleep, enumerated with so much industry, 
seem to have been constitutional, but affected not his mind. 
He followed his work in the day-time as usual, and his father 
never recollects, of his own knowledge and sight, that he was 
ever insane. He was never dealt with as an insane person 
by his father, by his brothers, his employers, his companions, 
the juries who tried him, the judges who sentenced him, the 
prison officers and contractors who had daily intercourse with 
him. He was never under guardianship ; he made his own 
contracts, earned his own living. During the whole time he 
was in prison he worked well; no complaint was made, no 
discount demanded; full price per day was paid for him. 
Mr. Crowninshield and Mr. Braman speak well of his conduct 
and work. The superintendents of the work-shops speak 
well of him all along, up to the week of the homicide. Doubt- 
less he was occasionally sick ; he certainly was a dissipated 
and profligate young man. He confesses he had led a wicked 
life. Headache, indigestion, hot blood, fever, nightmare, 
visited him as they do others. If he walked his chamber at 
night, he was rational all day. It seems to me whoever 
affirms him to be insane, from what his father, cousins, and 
friends, have testified of his former life, must strain evidence 
amazingly. His whole history shows him to be sane, and that 
all mankind who knew or dealt with him considered him as 
sound in his mind, and so treated him, as capable of the ordi- 
nary business of life, and with competent understanding for 
its duties and responsibilities. The presumptions of law and 
the history of his life, therefore, up to the week of the homi- 
cide, coincide in showing him to have been a sane man, and 
an accountable moral agent, as other men ordinarily are. 230 
TRIAL OF ABNER ROGERS, JR. 
And now consider that ever since the homicide he has been 
rational, and has never since heard voices, or been under any 
delusion. I thought with Dr. Bell, that, at the last trial, Mr. 
Dwight did describe him, on the Friday morning after that 
fatal Thursday, as a perfect maniac. But I now understand 
the language was applied to his dress, his beard, his uncomb- 
ed hair, his exterior, his appearances, and not so much to his 
mind. Certainly, Dr. Bell says he was, at that interview of 
his on Saturday morning, rational, talked rationally on all 
subjects, but when he spoke of the voices, — and then it was 
as an historian giving a narrative of past events, and not as 
hearing voices then, and indeed describing them as imaginary, 
even to Dr. Bell. £(e still believed that he had heard the 
voices in past time, but was rationally narrating the circum- 
stances, and occasionally confessing that the voices were 
merely fanciful. Dr. Bell talked with him as then rational. 
It is clear, from Dr. Bell’s testimony, as I understand it, and 
corroborated by the deputy warden, by Fogg, and other 
officers, and even Mr. Dwight, in this trial, that Rogers was 
rational on that morning. Certainly he was so immediately 
after the murder. He said to Warren B. Parker, “I have 
fixed the warden /”— was calm, submissive during the 
search — walked quietly up to the old prison, (the supposed 
place of his horror,) — said he would walk alone. There was 
no difference in him, but the natural consequence of having 
committed such an atrocious crime ; no apprehension of the 
popo game or checkerberry, though led up to the old prison. 
From that time to this he has been rational, sensible, sorrow- 
ful at the coffin ; considering the disastrous effects upon his 
own family, and the warden’s, &c. In Leverett street jail 
he was and has been as rational as other men. The pulse is 
no criterion of insanity. Doubtless he was excited after such 
an outrage, and also was bodily sick ; but that was no proof 
of insanity. TRIAL OF ABNER ROGERS, JR. 
231 
We have then, 1, the presumptions of law ; 2, his prior 
history; 3, his subsequent history ; all showing him to be 
and to have been a rational, accountable, moral agent, like the 
rest of mankind. We have now viewed his whole life but 
four days, and I will proceed to consider his history for those 
four days. 
I shall pass over the testimony of William Burnet, a par-* 
doned convict, who made him crazy in 1835, and a month or 
two before the homicide, as he is contradicted by all the 
officers, and every one else who knew him. His evidence is 
incredible and worthless from his manner and position ; and 
Savary’s testimony is no better. He also was another par- 
doned convict, who endeavored to make out something, be- 
cause Braman thought, on the Thursday or Friday before, he 
overstaid his time in walking in the yard. 
Rogers expressed some fears on Monday to Sargent that 
the warden would punish him. He was probably conscious 
of faults which deserved punishment. 
The first account of noise in his cell, is given by Savary. 
I have much doubt whether you will believe Savary. He is 
a competent, but I think not a credible witness. He colors 
and strains too much ; his manner lessened all confidence in 
him, and he had strong motives before he was pardoned to 
overstate the facts, and now to adhere to those overstate- 
ments. He says Monday morning he heard a noise like one 
disturbed by nightmare; this perhaps, is probable, Rogers 
was suffering under indigestion, horrible dreams or night- 
mare. On Monday night he is more particular, but is much 
contradicted by James N. Gardiner. From Gardiner’s story 
my solution is, that Rogers had been asleep until about 2 
o’clock in the morning. Gardiner had gone his round at 12, 
all then was quiet, &c. At 2 o’clock there were noises, and 
Rogers told him that he had heard Cole and Robinson say 
that the warden would shut him up, and keep him the rest 232 
TRIAL OF ABNER ROGERS, JR. 
of the time. This he probably dreamed; besides, Cole and 
Robinson may have said so the day before. 
I think this was merely a dream of Rogers — it left a strong 
impression which he could not get rid off — such things are 
not uncommon in the soundest men, and in a nervous man 
like Rogers, the thought of such a dream would agitate him, 
and be likely to produce the fears of reality. Besides, he fre- 
quently saw Cole and Robinson in the blacksmith shop. 
Probably there was some trick or joke played on him by 
them. The poco game and checkerberry perhaps were talked 
about in fact and reality. He told Dr. Bell that once going 
to the blacksmith’s shop he heard the voices. He dreamed 
probably of them afterwards — saw those prisoners daily — 
and they may have attempted to work on his feelings or ap- 
prehensions frequently ; to them a matter of mere sport but 
troublesome to a nervous man like Rogers. He was often 
troubled in his sleep, constitutionally so, and likely to con- 
found memory with dreams, to confound what he had heard 
in reality with his dreams, and his dreams with realities. 
There is as much proof of a dream, as of his hearing any 
voices. Gardiner and Savary thought the noises as from a 
man just waking from dreams or nightmare. Indeed, let me 
ask you, what proof have you of his hearing any voices at 
all? His declaration is no proof—no evidence — and it 
stands solely on his statement. Suppose I maintain that it is 
all a pretence, a falsehood, and that he never heard any such 
voices ; what proof have you to the contrary ? 
The whole of this defence is built up on Rogers’s say-so — 
his ipse dixit, upon evidence made for himself—a fancy, an 
imagination, a dream. Besides, he repeatedly said it was all 
imagination. How do you know he imagined it, or fancied it ? 
Is a man to kill another and then justify under a piece of 
imagination, under a fanciful declaration which has the ap- 
pearance of an incredible falsehood ? TR.1AL OF ABNER ROGERS, JR. 
233 
Was it ever heard of before in a court of justice, that a 
man justified a murder by saying, I fancied such and such a 
thing ? and that his word only was taken for proof? How 
easy is such a defence ! How dangerous ! He violated the 
rules — he made noises — he expected punishment, and his 
companions frightened him, or his dreams did. He had to 
make some excuse to Gardiner, probably to prevent his being 
reported. He invented a plausible tale, not in anticipation 
of a murder, but to get rid of punishment for making a noise, 
perhaps part of his dream was used, or related, as it would 
answer. Having once invented and told it, he repeated it, 
stuck to it, got it by heart, repeated it with some variations, 
but ran over it rapidly, and designedly, and artfully, on all 
occasions when he thought it would do him good. He had 
it by heart. It seldom varied; same expressions used, the 
same nonsense run over until it ceased to have any effect. 
Nightmare, dreams, and this hypothesis founded on his low 
cunning, will solve all his strange or extraordinary conduct. 
He had a low cunning, and boasted that he was a smarter man 
than they took him to be. The invention and cunning was 
not preparatory to a homicide, but mere excuses to get rid of 
punishment. 
Is it safe, in so dreadful a case as this is, to let a man off 
because he had some shrewdness and-some low cunning to 
devise a silly fable and stick to it ? a pretence not proved by 
a particle of testimony, but only by his saying so, and his 
very declarations frequently contradicted by his confessions 
that it was all imaginary. 
The proceedings on the subsequent days are of a similar 
character, both on Tuesday and Wednesday, and it is not 
material to comment on them particularly. He was rational 
in all respects, but telling that silly story, repeating that 
groundless excuse for making disturbing and forbidden noises. 
On Thursday afternoon after he was showered, he was mad, 234 
TRIAL OF ABNER ROGERS, JR. 
angry, ferocious, when he came out of his cell; and when he 
got to the shop, revengeful, and agitated. Now there are two 
hypotheses before you. One is, that he was really afraid, and 
uneasy, and running about to get persons to intercede for him. 
Another is, that he was seeking for the warden to glut his 
revenge — looking out for him, expecting him, watching for 
him. Contemplating such an atrocious act would naturally 
disturb a man’s mind, would give him a different appearance, 
might even produce tears ; but he was rational, he knew 
what he was about, minded orders, did some work, governed 
himself, but was more agitated after he heard that the warden 
was coming than before. This agitation might as well pro- 
ceed from his then, in his angry state, resolving no longer to 
delay the fatal deed; and all this sdpposition of insanity may 
arise a posteriori, from the mistaken benevolence of Mr. 
Dwight and others. 
He performed his work all those four days, and on the last 
day even after he had heard the warden was coming, cutting 
the binding of the mattress in one place, just before the deed, 
the only fault in it, an accident which might have happened 
to any one with a sharp knife. He conversed rationally, 
obeyed orders, submitted to reproof, controlled, restrained, 
managed and governed himself during the whole day, and up 
to the moment of the fatal deed. Upon every other subject 
but fear of punishment he was rational, and that fear was 
often pacified, and even by himself attributed to his absurd 
imaginations, and was so pacified and so attributed that same 
afternoon. 
The theory on the other side is, that upon sight of the 
warden, without previous thought of injuring him, a moment- 
ary uncontrollable impulse and outbreak came over him as a 
necessary means of self-defence, and that he acted under this 
strong delusion, and had no moral self-control. To which it 
may be answered that he was then in no danger, and had TRIAL OF ABNER ROGERS, JR. 
235 
been threatened with none. All the punishment he had de- 
served, he had received a few hours before. Mr. Braman 
had promised to intercede for him ; he was assured the war- 
den had no intention to punish him. The warden came not 
to punish him, nor even to speak to him. It was not the 
common time to speak to a prisoner about punishment, nor 
the usual place. The warden did not even look at him or 
regard him ; not a motion or a gesture of the warden that 
had any connection with Rogers, or reference to him. His 
back was to him, he was not near Rogers, nor going to him ; 
he had other business, came for another purpose, had stopped, 
and was engaged in that business. The warden had threat- 
ened nothing — all that had passed had been atoned for by 
the previous showering of Rogers. His conduct then had no 
reference to Rogers, and gave no foundation for suspicion, 
fear, or resentment. Under these circumstances, all the indi- 
cations of previous malice, of which there are many, (all im- 
mediate danger or necessity being completely disproved,) go 
to refute this hypothesis of sudden outbreak of a diseased 
mind incapable of self-restraint. Everything showing he had 
meditated the death of the warden refutes the idea of a 
sudden conception, or temporary outbreak, or impulse, and 
fixes the proof of that express malice, which Mr. Bigelow has 
labored so hard, and as I think, so unsuccessfully to disprove. 
Now these indications of malice are very important in this 
connection, as well as concerning the character of the homi- 
cide, for your consideration. I will enumerate them, and you 
will judge if the senior counsel of the prisoner, has any rea- 
son to congratulate himself that his client is free from having 
a black heart. 
1. From Mr. Fogg’s testimony—Rogers confessed to Mr. 
Curtis, that after Watts had hung himself, he, Rogers, said to 
Rich, that Watts was a fool, because he did not kill the war- 
den before he killed himself. This is very expressive of what 236 
TRIAL OF ABNER ROGERS, JR. 
was in his own heart, a manifestation of his own wishes, a 
contemplation of, and desire for, violence to the warden. 
2. From Tully’s evidence — That on two several occasions 
Rogers had with profane expressions used threats, that he 
would fix the warden before he left the prison. This part of 
the case is remarkable also for the similarity of the language 
of Rogers immediately after he had killed Mr. Lincoln, — that 
he had fixed the warden, as testified by Warren B. Parker; 
the malicious language of the prophecy being repeated with 
demoniac gratification immediately after its cruel fulfilment, 
clearly showing the language was no fiction of Tully’s, but 
Rogers’s own phraseology. Besides, Tully had nothing to 
gain ; his pardon only restored his competency as a witness, 
but did not shorten his time as a prisoner. His last crimes 
were intoxication. 
3. From Mr. Jaquith’s testimony — The proclamation pro- 
ceeding from Rogers at the time of the fatal deed, “ I told 
you I would ! ” He is certain those were the exact words, the 
word I pronounced twice, not he, as Mr. Bigelow asks you to 
suppose ; clearly alluding to previous threats, which Rogers 
had, probably, at some prior time, made even to Mr. Lincoln 
himself. There is no sound objection to Mr. Jaquith’s testi- 
mony or character. There was not time, on that fatal night, 
before the coroner’s inquest, to recollect or mention all things 
which occurred ; many witnesses, much confusion and excite- 
ment, and very little time allowed in that summary investiga- 
tion. 
4. From Mr. Fogg’s testimony again — who heard Rogers, 
on two different occasions, say some time after the homicide, 
“ if the warden had let me go six months ago, he would have 
been alive, and I among my friends.” This is not the lan- 
guage of a maniac, an idiot, or an unconscious being. It has 
probably a direct allusion to, and is indicative of, his resent- 
ment against Mr. Lincoln in the matter of the additional sen- TRIAL OF ABNER ROGERS, JR. 
237 
tence of six months, which was longer than those of other 
convicts sentenced additionally at the same time, though not 
so much as he naturally expected, and the whole supposed by 
him to be Mr. Lincoln's voluntary act. 
5. From Warren B. Parker’s evidence again — The de- 
claration of Rogers of his intention to commit suicide, “ I 
have fixed the warden, and I will have a rope round my neck 
to-night.” It shows a contemplation of murder and suicide, 
a connection between the twro deeds, a mind harboring such 
fatal designs, premeditation upon such atrocious acts, a know- 
ledge of the probable consequences, a designed voluntary es- 
cape from the penalties of the law, and a consciousness of 
the malignity and criminality of his actions. Rogers also said 
to Rich, that Watts ought to have murdered Mr. Lincoln 
before he killed himself, or was a fool for not committing the 
murder before the suicide. 
6. The deliberate selection of the longest knife from 
Reed’s work-bench refutes the idea of sudden, uncontrollable 
outbreak. There was a shorter knife on his own table, or in 
his own hand, too short to reach through the garments of 
Mr. Lincoln and the integuments of his body to a vital part. 
The knife taken from Reed’s bench was the longest in Reed’s 
possession; there were shorter ones there. A sudden, un- 
controllable impulse wrould have used the weapon in hand, 
or soonest attainable, especially if, as Mr. Bigelow says, the 
short knives would do as well. The reflection that a better 
weapon was elsewhere and could be had, indicated conscious- 
ness, calculation, restraint,- reasoning upon a true state of 
things and circumstances, and his action upon that reflection 
shows a power of self-government, and refutes the hypothesis 
of an uncontrollable impulse and outbreak, senseless, irrational 
and irresistible. 
7. To the same effect is the circuitous, cautious, cunning 
mode of approach to Mr. Lincoln, studiously coming up be- 238 
TRIAL OF ABNER ROGERS, JR. 
hind him, avoiding a direct and the nearest path to him, be- 
cause it would expose him to Mr. Lincoln’s sight, and defeat 
his murderous intent. This is self-management, deliberate 
reflection, controlling calculation, and not the impulsive over- 
bearing, unchecked, and irrepressible conduct of a maniac, 
who could not control, check, or repress his actions. Besides 
the outbreak, if insane, would have been earlier; as soon 
as he saw Mr. Lincoln, he would have rushed at him at 
once, not waited for an unguarded posture, and he would 
not have so long reasoned upon the most favorable mode of 
attack. 
8. These indications of premeditated malice are confirmed 
by the testimony of Thomas Russell, a man of irreproachable 
character, notwithstanding the attempt of both counsel to im- 
peach him. It was unfortunate that Mr. Bradford Sumner 
told the officers to say nothing they knew, until investigations 
took place in court. It prevented my learning many very 
important facts, some of which I have learned for the first 
time on this second trial. It was well designed advice on the 
part of the chairman of the inspectors of the prison, but it 
was not intended to direct the officers not to disclose to coun- 
sel the facts in their knowledge, though they so interpreted it. 
This accounts for their previous silence, and for their not 
being summoned on the first trial, in which their testimony 
might have been, and probably would have been conclusive. 
Now Thomas Russell declares, on his oath, that he heard 
Rogers, as far back as April, say, “ before I leave, Til pay the 
warden for it. I should’’ nt have got so much additional 
sentence if it had not been for him.” How corroborative 
of Tully, and the other threatenings ! How conclusive an 
answer to Mr. Bigelow’s argument upon the supposed want of 
motive to revenge! To this witness, also, he boasted that 
he was a smarter man that they took him to be. All the rest 
of Mr. Thomas Russell’s testimony is in point. TRIAL OF ABNER ROGERS, JR. 
239 
9. Malice aforethought is also shown by the testimony of 
Mr. Bean. He also is assailed by the prisoner’s counsel, but 
without good cause. He is very intelligent, and, I believe, 
very fair. He was called to a particular point in the former 
trial, just before an adjournment, and, not being much inter- 
rogated, he did not tell all he knew. He had never been a 
witness in court before, and his engagements confined him at 
the prison, so that he was in court but a few minutes. Mr. 
Bemis is very cautious in his language in contradicting Mr. 
Bean. He says, “ I am confident Mr. Bean never mentioned 
to me at the prison the threats he has now testified to, in the 
same terms.” He admits that Mr. Bean told him, he had 
heard Rogers frequently say, that the warden would suffer 
for punishing him. How strongly, then, Mr. Bemis confirms 
and supports Mr. Bean ! I look upon this testimony of Mr. 
Bean, also, as confirming Tully, confirming Thomas Russell, 
confirming Jaquith, and as proving the fact that Rogers har- 
bored revenge against Mr. Lincoln for the additional sen- 
tence, and for punishing him for every little offence. Mr. 
Bean is express and positive to Rogers’s language, that he 
would fix Lincoln before his time was out, — the very lan- 
guage he used to Tully, reiterated by Rogers after the fatal 
deed, he had fixed the warden. What he meant by fixing 
is demonstrated by the threat and its execution, and is clear 
evidence of express malice. I do not wonder the senior 
counsel felt the pressure of this part of the case. 
Now therefore, if, from the evidence in this case, both the 
homicide and the malice aforethought, both express in pre- 
vious threats, and implied from the nature of the instrument 
and the savage brutality of the act, are proved, the crime of 
murder in this defendant is established, unless the charge is 
defeated by some justification or excuse which can be urged 
in his behalf. No justification is suggested, or attempted to 
be proved. What, then, is the excuse which ought to be 240 
TRIAL OF ABNER ROGERS, JR. 
established beyond doubt ? It is alleged, and ought to be 
incontestably proved, considering the nature of this extraordi- 
nary defence,— probably the after-thought of benevolent in- 
dividuals, — 
1. That Rogers heard false voices. 
2. That he believed those voices. 
3. That he really believed the warden intended to confine 
him, and put him to death by the poco game, checkerberry, 
or starvation. 
4. That he acted from no grudge or resentment against the 
warden, but from the delusion produced by the false voices ; 
and a sincere belief, consequent thereupon, that the homicidal 
act was an indispensable measure of self-defence. 
5. That he had never previously contemplated any bodily 
harm to the warden; but a sudden, unexpected, instantane- 
ous, and irresistible impulse and outbreak, impelled him to 
the fatal deed. 
6. That he had not reason or moral force enough left to 
check or control that impulse, in consequence of mental 
disease ; and that there was a total want of consciousness 
that the act was against the laws of God and man, and that 
all distinctions between right and wrong, so far as related to 
the homicidal act, had ceased to exist in his mind. 
If all this is proved, doubtless it would amount to an ex- 
cuse, relieving the accused from the penal responsibility of 
the act. But I contend, upon this evidence, that such excuse 
is not established by the testimony which has been offered, 
and that it would, in the highest degree, be unsafe and dan- 
gerous to the community, to the lives of other men, to excuse 
homicidal acts committed under such circumstances, and per- 
sons from criminal responsibility whose unsoundness of mind, 
or want of an understanding to distinguish right from wrong, 
or whose partial insanity is attempted to be established by 
such slight evidence. I contend that there is a failure of TRIAL OF ABNER ROGERS, JR. 
241 
proof on the part of the prisoner; that these various allega- 
tions, necessary to make out the excuse which is claimed for 
him, are not established by satisfactory testimony; on the 
contrary, it is demonstrably proved by credible evidence, that 
it is a case of human resentments, of 'premeditated plans, 
of long-harbored designs, of deliberate contemplation, of 
a wicked heart, a cruel temper, a mind bent on mischief 
and personal violence, a carrying out of prior threats, and 
the result of calculation, vengeance, revenge and afore- 
thought malice. Rogers had controlled himself frequently 
that afternoon, obeyed orders, followed directions, been paci- 
fied, calmed, yielded up his groundless fears, commanded his 
thoughts and actions, confessed his foolish apprehensions, and 
that they were imaginary, and went to his work with assurances 
that the warden intended no harm to him. His impulse was 
controllable, could be controlled, and was controlled until 
the best time to strike ; his understanding was not darkened, 
but clear, calculating and bright; he had not lost his conscious- 
ness of right and wrong, he knew what he did, and boasted 
of it at the moment: “ I told you I would” In no act had he 
evinced want of intelligence, understanding or moral power ; 
his preceding, contemporaneous, and subsequent words and 
actions demonstrated his self-possession, and his knowledge 
of what he was doing and had done, and of the natural 
consequences thereof. He was treated as a moral agent, 
and in many respects, indeed in all respects, acted as such. 
Consider, also, that, if he really was under a delusion, that 
the warden intended to shut him up and practise some mys- 
terious cruelty upon him, and acted under the influence of 
such belief, and in all other respects he was sound and rational, 
what ought to be the just and legal consequence ? Now an 
impulse springing out of such a belief, (the belief being actual 
and sincere) should excuse him just as much and no more 
than an impulse in a sane man would excuse him, derived 242 
TRIAL OF ABNER ROGERS, JR. 
from a positive belief of such similar actual danger. If, there- 
fore, a sound man really believed that the warden intended, 
at some future indefinite time, to subject him to a cruel and 
dangerous punishment, and that the fact of the belief and 
the fact of the intent were absolutely true, that the warden 
did intend some future unjustifiable cruelty towards him, an 
impulse derived from such a belief, well-grounded as the be- 
lief might be, could in no wise be justified, if it led to a 
homicidal act towards the warden in anticipation of all such 
attempt on the part of the warden to put such unlawful cruelty 
into execution. The warden might repent, change his mind, 
and never attempt to do the apprehended act. A moment’s 
reflection might dissipate the apprehension. A fear of future, 
distant danger, is no lawful excuse of homicide. The sup- 
posed insanity in Rogers being merely the delusion of such a 
belief, if the belief itself is no excuse for the homicidal act in 
a rational man, it cannot be an excuse for a man irrational, 
only in respect of such belief. The rule of law is ex- 
pressed by Lord Hale, (p. 51,) “ Without actual assault by 
B upon A, A may not kill B by way of prevention, but must 
avoid the danger by flight or other means. A. bare fear, 
though well grounded, gives not a man leave to take another’s 
life.” Now the mind of Rogers was not so prostrated as to 
be incapable of control. He did control himself constantly ; 
he had the power of self-government; he often did control 
even his absurd fears, and dismiss them. Mere strangeness 
of conduct, some alteration in his behavior, even some dis- 
turbance of his mind, even some appearance of not being 
right, as stated by some witness, some partial and slight delu- 
sion upon one subject, some strong impulse when in no actual 
danger ; indeed, a sincere apprehension that some indefinite 
evil was overhanging him, and was to fall on him in a future 
time, all these do not amount to evidence of irresistible con- 
trol and legal irresponsible insanity. To discharge persons TRIAL OF ABNER ROGERS, JR. 
charged with atrocious criminal acts for causes so slight or 
insufficient, and under such circumstances as these, will be 
most dangerous to society. To cover up personal malice and 
cruel revenge in the mantle of such supposed incontrolla- 
ble insanity is misplaced clemency. It is the duty of the 
jury to discriminate in these nice matters, and to require 
indubitable proof of overwhelming delusion and resistless 
impulse ; the law casts the responsibility on them, and obliges 
them to demand, before they excuse the assassin, entire satis- 
faction on this head. They are entitled to all the guidance 
and assistance which the witnesses, the counsel or the court 
can give them, and having received it, the decision of the im- 
portant issue rests solely on their conscience, and upon their 
responsibility to God and man for an honest discharge of such 
painful duty. Mere suspicion of delusion or of overpowering 
impulse is not enough. Their difficulties are increased, no 
doubt, by the nature of the subject of investigation, the dis- 
eases, the temporary and varying maladies, the controllable 
and uncontrollable impulses of the intellectual part of hu- 
man nature. The mind of man is “ an ocean of science, 
many parts of which are yet unnavigable by human sagacity.” 
Men of common sense and ordinary experience have some 
means, and the power, in many instances, of judging of the 
soundness and unsoundness of other men’s understanding; 
jurors are compelled to make up their judgment in these deli- 
cate and mysterious cases. Medical men sometimes have 
larger experience and greater sagacity upon such subjects. 
Nevertheless much of the science of the mind as well as of 
the body is yet but theoretical, and many of the different 
experts have different theories. Who can tell which are 
right ? What more proverbial than that doctors disagree ? 
Dr. Ray, in this trial says, in some things he agrees with Es- 
quirol, and in others, differs. This also is manifest in his 
book. What changes and revolutions in medical knowledge 244 
TRIAL OF ABNER ROGERS, JR. 
and practice within fifty or a hundred years ? What more 
extraordinary changes are still to take place in the century 
now passing before us ? Can therefore mere opinions of 
medical men, founded on representations of facts not seen 
by themselves, representations coming through partial, con- 
tradictory, suspicious and doubtful channels, be a sure, a sat- 
isfactory, or a safe foundation for a judicial verdict ? It is, 
indeed, common, to introduce such evidence in capital trials, 
where insanity is the defence, and it is, no doubt, right to do 
so, but always with much caution, because the foundation is 
so uncertain. All I wish to inculcate upon you is the great 
degree of caution with which you ought to receive it, espe- 
cially in this case, in which the prisoner’s medical witnesses 
never saw him before the deed was done. I will not trust 
myself to state all the objections to it, which I promised, or 
to the manner in which medical testimony usually is pro- 
cured. I prefer you should take the statement of medical 
men themselves, who ought to be considered as fair reason- 
ers on such a subject, and whose arguments will not be attri- 
buted to professional prejudice or unprofessional ignorance. 
Hear what a distinguished medical man has written: — “ The 
plea of insanity may be improperly made and abetted by med- 
ical testimony. The act committed may be wrongly taken 
as evidence of insanity ; for it is impossible to say, a priori, 
what criminal acts should, and what should not, be deemed 
acts of insanity. This is undoubtedly true ; and the only 
remedy is to abolish medical testimony as it is at present 
given on trials for crime where insanity is the plea. Ques- 
tions of this important nature should be referred to a board 
of twelve or more competent men ; the state of mind of a 
person accused of crime should not be left to be decided by 
those members of the profession whom the prisoner or his 
friends may select for their known support of his case. As 
to the question of responsibility and punishment, this should 
be entrusted to the authorities of the law.” TRIAL OF ABNER ROGERS, JR. 
245 
Such is the language of a very able article in the Review 
of seven works on the plea of insanity, in the 31st number of 
the British and Foreign Medical Review for July, 1843, pub- 
lished shortly after the trial of Daniel McNaughten for the 
murder of Edward Drummond, the private secretary of Sir 
Robert Peel, the result of which trial made a great excite- 
ment on the subject of insanity throughout England. It is 
the closing paragraph of that well-written and sensible arti- 
cle. But there are other passages equally worthy of your 
consideration. Here is an extract from page 100: “The 
unsettled state of opinion which at present exists among 
medical men on the subject of insanity, is, in his opinion, (Sir 
A. Crichton’s) the source of two evils, — that some criminals 
who ought to be punished are acquitted of responsibility, 
while, in other instances, true homicidal monomaniacs are 
convicted and executed. It is difficult to say of which evil 
society has now the greater reason to complain ; but it is 
a matter of sad reflection that the result depends less on 
the facts proved than on the medical and legal ingenuity en- 
gaged in the prosecution or defence.” This passage is a de- 
cisive proof that criminals who ought to be punished are 
acquitted, and furnishes a complete answer to some of the 
assertions of both of the prisoner’s counsel on this point. 
Still farther, in the same page — “Medical men have, on 
these occasions, passed often beyond the legitimate sphere of 
their duties. It is not for a medical witness, as such, to dis- 
cuss the subject of free will, human responsibility, or the de- 
gree of punishment which should follow an offence. By 
so doing he usurps the functions of the judge and jury, and 
takes upon himself to dictate to society the means which it 
should employ for the protection of its members. In these 
cases his professional studies give him no advantage over the 
common sense and experience of mankind — a fact made 
evident by the very different opinions entertained on these 246 
TRIAL OF ABNER ROGERS, JR. 
subjects among equally eminent members of the profession.” 
In alluding to the fact “ from the evidence given on some re- 
cent occasions, it would rather appear that the accused was 
tried by the medical witnesses than by the court, before which 
he was arraigned,” (which possibly hereafter may be said of 
this trial also,) the reviewer quotes with approbation the 
following passage from Sir Alexander Crichton’s work, pub- 
lished in 1842: — 
“ If revealed truth, which declares that we are to answer 
for the deeds we commit in the flesh, is discredited, it is not 
by metaphysical arguments that we can hope to settle our 
faith ; but this every one must needs know with certainty, 
that in this country, and in every other civilized state which 
is careful of the interests of society, the laws are founded on 
the doctrine of the freedom of the will, as it is called, or on 
human responsibility ; and also on the belief, that examples 
of punishment and the dread of future condemnation will 
influence the determinations and actions of men until they 
are bereft of reason by disease. To the judge must be left 
the task of considering the circumstances which palliate 
offences, and make criminals objects of special commisera- 
tion and mercy ; but the attempt on the part of learned doc- 
tors in law or medicine to confound vice with insanity, and 
consequently to condemn the right of human punishment, I 
consider as one of the many dangerous innovations which 
the proud philosophy of the nineteenth century has pro- 
duced.” 
But besides these powerful extracts from medical writers, 
other sensible men of high repute have expressed themselves 
on this subject in terms no less decisive. A writer in the 
Westminster Review (No. 77, May, 1843, p. 252,) observes, 
“Jurors strive earnestly to escape from the duty of acting in 
a case of murder ; and when at length a full jury is obtained, 
every man catches at every possible pretext to come to any TRIAL OF ABNER ROGERS, JR. 
247 
conclusion rather than that of guilty. And now since coun- 
sel are allowed in all cases, every advantage is skilfully taken 
of this feeling, and no pretext is too absurd to trust to for an 
acquittal; and in no case, no matter how atrocious or clear, 
can a conviction be depended upon. The plea of insanity 
is a grand instrument in this work of morbid humanity. The 
more atrocious the deed, the more willing do judge and jury 
become to listen to every artful suggestion which a practical 
dexterity can suggest, or a crotchety physician will hazard. 
The atrocity itself is deemed proof of the insanity—the 
very openness of the deed will bear the same interpretation; 
so that, at length, a man is permitted with impunity to shoot 
another, in broad day, in the most frequented part of Lon- 
don— to take all sorts of precautions — to frame schemes — 
to utter falsehoods, in order to hide his criminal intention, 
and to secure the death of his unoffending victim, and yet be 
permitted to escape as a madman.” 
In this connection I wish to recall to your minds a candid 
remark of Dr. Bell himself, in giving his opinion in this case. 
“ The great mass of evidence which I have since heard, sup- 
posing it to be true, corroborates my first opinion, and I have 
heard but few things inconsistent with it.” There are some 
things, then, in this case, inconsistent with Dr. Bell’s opinion. 
He does not tell us what they are, nor how many. More- 
over, in addition to all this, you are to consider that there 
are degrees in insanity, from very slight aberrations of intel- 
lect, some occasional or temporary unsoundness of mind, to 
absolute permanent frenzy, and furious madness. Every de- 
gree does not relieve from criminal responsibility. It is not 
enough to prove some delusion on some subject, but rea- 
son must be wholly dethroned, right and wrong must be con- 
founded, consciousness of criminality must be wholly lost. I 
submit for your consideration the proposition with great con- 
fidence, that no proof has here been given to you, proving 248 
TRIAL OF ABNER ROGERS, JR. 
that at the time of this atrocious homicide Abner Rogers was 
so bereft of reason, so deprived of his intellectual and moral 
powers. Everything shows the contrary — indicates, at most, 
but a trifling delusion, mistaking dreams and idle talk of pris- 
oners, for evidence of facts and intentions, a delusion cor- 
rected often by himself, always by others. And in deter- 
mining this case, you must never lose sight of a most 
important principle of law touching this subject, that the 
burthen of proof of total insanity is to be sustained by the 
prisoner or his counsel, and if it be not proved beyond a rea- 
sonable doubt, the defence fails. No man can say, that 
reasonable and very strong doubts do not rest over such a 
defence on this evidence. 
The positions the prisoner’s counsel must sustain to your 
entire satisfaction I have enumerated, and the evidence fails 
to substantiate them. There is no proof that he heard any 
false voices, or believed any, or that he had any serious appre- 
hension that the warden intended to shut him up, or play the 
popo game, or give him checkerberry, &c. He confessed, on 
several occasions, this was mere fancy or dreams ; and there 
is no proof that he had not moral force to control his actions; 
on the contrary, he did control them on all occasions. There 
is not a particle of proof that, at the time of the murder, he 
was under an uncontrollable impulse; his conduct and ac- 
tions, at that time, show self-possession, self-management, 
cool contrivance and deliberation, careful preparation, a well- 
considered mode of attack, and he gave utterance to the con- 
temporaneous expression of their accomplishing what he said 
he would do, and soon after the deed was done he boasted of 
having done it. The evidence does show he acted from re- 
venge ; that he had motives for vengeance, as he thought; 
that he expressed previous threats to Tully, to Russell, to 
Bean, and acknowledged to the chaplain, Mr. Curtis, a pre- 
vious wish that the warden had been killed; and there is TRIAL OF ABNER ROGERS, JR. 
249 
nothing substantial or satisfactory in the testimony, showing 
that his whole conduct, or any part of it, was inconsistent 
with the hypothesis of his acting, on this tragic occasion, 
from human resentments and motives of revenge, the ordi- 
nary basis of malice aforethought. 
The medical testimony relied upon is wholly derived (so 
far as personal examination went of the defendant’s wit- 
nesses only Dr. Bell saw Rogers) from the conduct and lan- 
guage of the prisoner, hours and days after the deed was 
done, and after he had motives to deceive all he could; or 
from the statements of the prisoner, or of other persons ; and 
the difficulty of distinguishing real from feigned insanity, in 
such cases, is acknowledged to be very great, by all the med- 
ical writers and witnesses. The talents of Rogers were 
underrated, according to his own declaration ; I think Dr. 
Bell underrated him, and formed some of his opinions on the 
supposed incapacity of Rogers. He had much more cunning 
than he was credited for ; and the opinions of the medical 
men, based on such testimony as has been introduced into 
this case from some of the witnesses, cannot be worth much. 
They assume it is all true, and assuming it thus to be wholly 
true, in all its parts, they base an opinion upon it. Now 
there is much that is incredible and unworthy of belief in this 
evidence, and much from impure and discredited sources. I 
allude particularly to the testimony of George H. Savary, 
William Burnett, and James H. Bradley, exceedingly colored, 
and coming from a source not entitled to confidence. I have 
alluded before to their positions and motives. I suppose, 
also, you will think Mr. Dwight’s testimony will admit some 
grains of allowance from his known zeal, as upon some small 
points he is not exactly supported by his friend Dr. Bell, in 
some of the particulars. As to Mr. Sargent, he was an inex- 
perienced officer, new in the command of a work-shop, and 
not familiar with the tricks and impositions of the convicts. 250 
TRIAL OF ABNER ROGERS, JR. 
Mr. Crowninshield’s and Mr. Braman’s testimony is all recon- 
cilable with the hypothesis of feigned insanity, or, rather, 
feigned excuses to avoid deserved punishment; and the 
opinions of Sargent, Crowninshield and Braman, and even 
the opinions of the medical men, formed under such circum- 
stances, are more than balanced by the opinions of Mr. Lin- 
coln, himself a good judge, and of great experience in such 
cases ; Mr. Payne, also, of long experience, Mr. Fogg, the 
Messrs. Russell, and others, who did not think him excusable 
for any offence, on the ground of insanity. Dr. Walker, too, 
who had long known Rogers, his habits, constitution and pre- 
tences, and who saw him in the morning before he did the 
deed ; his opinion and statements are of great weight, and 
all against the notion of his insanity. 
With a fair view of all this testimony, please to remember the 
proof must be so clear and decisive of uncontrollable insanity, 
at the time of the homicide, as to leave no reasonable doubt. 
The point is not for the government to prove he was of sound 
mind; the presumptions of law, and the ordinary evidence 
to that effect, are enough until they are disproved. Now, as 
I said before, the burthen of proving this is undertaken on 
the other side ; if they leave it a balanced question ; if there 
be any mystery or uncertainty about it; if it is doubtful, nay, 
if it is even probable ; — that is not enough for them. So I 
hold the law; and to relax that law will be dangerous to so- 
ciety. If there be a doubt, then, the proof is insufficient, 
and the defence is not made out. I contend, on this evidence, 
there has not been proof enough to vacate a contract, to make a 
will void, or to have put the prisoner under guardianship in the 
probate office as an insane person; and, therefore, it falls far 
short of excusing him for his criminal acts. In any other case 
founded on the prisoner’s conduct, as to any other of his acts 
or deeds, you would not hesitate, under this testimony, to 
hold him responsible for his actions. Can, then, the mere TRIAL OF ABNER ROGERS, JR. 
251 
statute of the legislature, prescribing d priori what shall be 
the punishment of an act, have any lawful or reasonable effect 
in deciding upon the inferences to be drawn from the evidence 
as to the state of the prisoner’s mind when the act was per- 
petrated ? If this was not a trial for a capital offence, but a 
mere civil proceeding for an assault and battery, to be atoned 
for by a pecuniary compensation, (supposing the warden not 
to have been killed,) would you refuse, on this evidence, to 
give a verdict that the defendant should pay damages, if he 
was able ? Certainly, the mere consequences of an act can 
have no effect in determining the state of mind of the actor 
when he did the act; nor can it be said with any justice or 
truth on any occasion, that if the consequences are to be a 
pecuniary fine or imprisonment, then the state of mind of the 
actor was sound; but if the consequences are to be death, 
then the state of the actor’s mind was unsound. This would 
be making the legislature settle, in many cases, the questions 
of supposed homicidal insanity ; for if they abolish capital 
punishment by law, then the culprits are to be found of sound 
mind and responsible for their acts ; but if death is still to be 
awarded as the proper punishment of felonious homicide, 
then the prisoner is, in all doubtful cases, or cases even of 
mere suspicion of insanity, to be found of unsound mind, and 
irresponsible to human tribunals. What a mockery of justice 
would verdicts be, when they are, upon the same evidence, to 
be for the government if a mild punishment is to follow, but 
for the prisoner if a severe punishment is to be the conse- 
quence of the verdict! It would be best, if it were practica- 
ble, that jurors should not know the consequences of their 
verdicts. They are engaged in these interesting cases, in a 
most solemn and highly responsible duty of finding and de- 
claring the truth. Now consequences are held up to them, 
which frighten them from the path of that duty. The fear 
of consequences appals them ; the mind gets alarmed in the 252 
TRIAL OF ABNER ROGERS, JR. 
pursuit of truth ; it fears to find the truth ; it seeks every pos- 
sible escape to get away from seeing or declaring the awful 
truth, if it can find any way to ease the conscience, if it can 
be done and the oath be not violated. But for such alarms, 
but for the disquietudes which the fear of consequences occa- 
sions, the mind, on these interesting occasions, would have 
clearness to discover" the truth and the firmness to declare it; 
but the bare possibility of a mistake, even after the judgment 
has decided the question, sometimes overthrows the decision. 
Such may be the result of this case; but all I contend for is, 
that if upon this evidence a case of insanity would not be 
made out in favor of the defendant, if it were a mere civil 
action for damages on a contract, or for an assault and bat- 
tery, then the public justice suffers if a verdict be found for 
the prisoner as irresponsible on the ground of insanity, merely 
because murder is yet punishable by death ; and the appalling 
consequences thus drive the mind from its propriety, and ob- 
literate the truth. 
But before leaving this main question, I ought briefly to 
consider and reply to some of the remarks and arguments of 
each of the counsel for the prisoner, notwithstanding much 
of what they have said having been already sufficiently an- 
swered. 
First. There is no case cited by the junior counsel, in his 
very elaborate and extensive quotations, which is like the case 
at bar, or which proves, by precedent, or analogy, this case 
to be insanity. As to the monomania arising from supposed 
false voices, lie has cited but four cases, every one of which 
differs essentially from this case. Hadfield said he was com- 
manded by the voice of God to kill his own child, but never 
said he had heard such a command to kill the king. His de- 
lusion there proceeded from no false voices, in reference to 
shooting the king, but from contemplating and reflecting on 
what he actually heard from the real voice of a fanatical TRIAL OF ABNER ROGERS, JR. 
253 
preacher. Martin heard a voice in a dream about York Min- 
ster ; his case was not one of hearing false voices while 
awake, but voices in no other sense untrue, than those which 
one supposes he hears, when asleep and dreaming, are false. 
Davis’s case was, where a man in a delirium tremens said 
he heard General Washington call out to him, as he rode 
through the air, to take the life of Edwards without delay. 
Here was no false voice, but the mere ravings of a delirium, 
not knowing what it said. The Prussian farmer’s case 
was a fanatical imitation of Abraham’s offering up Isaac ; but 
we do not know enough of the circumstances of the farmer’s 
disease, its origin, progress or result, to compare it with this 
case. The quotations cited from Esquirol and Marc are not 
based on reported cases, and differ materially from each other, 
thus showing that reliance cannot be placed upon those com- 
putations, or such calculations, in judicial tribunals. Now 
Rogers’s case differs from all those Mr. Bemis cited, in this very 
remarkable particular — Rogers never said or pretended that 
any false voices led him to kill Mr. Lincoln, or that he killed 
Mr. Lincoln because he had heard that Mr. Lincoln intend- 
ed to shut him up, &c. There is no connection, from any- 
thing he ever said, between the supposed hallucination and 
the atrocious deed; and the absence of such connection in 
his mind shows the cases cited not to be in point, especially 
as Rogers several times spoke of Mr. Lincoln’s being killed. 
The absence, too, of this connection in Rogers’s mind has a 
strong tendency to show that all you have heard on this sub- 
ject, the opinions of the medical men and the arguments of 
counsel, are after-thoughts, theories, assumptions, the results 
of ingenious conjectures after the fact, and not proved by 
any antecedent or contemporaneous or even subsequent lan- 
guage or declarations of even Rogers himself, who never con- 
nected his killing Mr. Lincoln with what Cole or Robinson 
said, or the popo game, checkerberry, or starvation, or self- 254 
TRIAL OF ABNER ROGERS, JR. 
defence. Rogers himself, as far as the evidence goes, never 
connected the homicidal act with the supposed delusion; this 
is the sole work of the doctors and lawyers, their hypothesis 
resting on conjecture, not on evidence. Now Mr. Bemis 
himself relies on Erskine’s doctrine in Hadfield’s case, as sound 
law. He contends for the application of the test of Mr. Ers- 
kine, of delusion coupled with the act. But what evidence 
have you that Rogers coupled the act with any delusion? 
Before he did it, when he did it, after he did it, he never jus- 
tified it on that ground, or connected the deed by a single 
word with any delusion. There is not a particle of evidence, 
showing that in his mind he acted from a desire of self- 
defence, necessarily and actually arising from any delusion, 
or with any reference to the supposed voices, or any belief 
founded on such supposed voices. And this is very important 
for your consideration, for you must settle the point, whether 
this supposed connection is anything more than “ fancy’s 
sketch,” of conjectural reasoners ; and whether Mr. Erskine’s 
test is not wholly wanting in this case. 
I think I am justified, under the evidence before you, in 
saying, also, that you have no proof that, at the time of per- 
petrating the deed, Rogers was under any delusion at all. 
His general vague fear of punishment, arising from a dream, 
or the real voices of Cole and Robinson, is no evidence of the 
dethronement of reason, is no proof of such mental disease 
as shows incapacity of self-control, or excuses him from crim- 
inal responsibility. He acted from memory of the past, not 
fear of the future; his act was revenge, not precaution ; and 
vengeance being gratified, all supposed delusion vanishes for- 
ever. The case at bar, then, is not like Hadfield’s, McNaugh- 
ten’s, Martin’s, Sclafer’s, or any of the others cited in the 
defence ; and the three points for which Mr. Bemis cited 
them, in hope to make out the same in Rogers’s case, are not 
brought out in this prisoner’s case on this evidence, — the TRIAL OF ABNER ROGERS, JR. 
255 
hearing of false voices, the consequent idea of the existence 
of conspiracies and persecution, making self-defence by blood- 
shedding necessary, and the possible duration of a paroxysm 
of insanity; and the test which he derives from Mr. Erskine 
also wholly fails him on this occasion. 
There is much, also, in Mr. Bigelow’s argument, to which 
the reply is obvious and easy. He admits, if express malice 
is proved, the defence entirely fails ; but he attacks Mr. Ja- 
quith, Tully, Mr. Thomas Russell, and Mr. Bean, who, if 
believed, make out a clear case of express malice. Now it 
would be marvellous if four witnesses should all be either 
perjured or mistaken, who have had no ill will towards the 
prisoner, who have no motive to misstate any fact or circum- 
stance, and who are under the solemn obligations of the law 
to tell the truth on this solemn occasion. Mr, Jaquith is a 
respectable and intelligent man, careful and cautious, clear in 
his recollection, and his belief is founded on knowledge. 
His mind is free from every shade of doubt. He is not im- 
peached by any evidence. Others not noticing, not hearing, 
or forgetting some rapid words spoken in such an exciting 
moment, which astounded all present, is no contradiction of 
what he, in fact, did hear? and Mr. Jaquith’s omission to 
state this matter before the coroner’s inquest in the evening 
is sufficiently explained by the summary, hurried and incom- 
plete examination common on such occasions. A fortieth 
part of the testimony given on this trial was not produced 
before the coroner’s jury; is it therefore all untrue ? Cer- 
tainly not. The evidence of Mr. Jaquith was neither vague, 
uncertain, nor unsatisfactory, but definite, explicit, and en- 
tirely convincing, that Rogers used the words I told you I 
would, at the precise moment when the fatal blow was 
struck ; and these words show express malice, indicate no 
delusion, are words of revenge and exultation, and not of self- 256 
TRIAL OF ABNER ROGERS, JR. 
defence. They are in conformity with the threats sworn to 
by Tully, who is a competent witness, but is also attacked on 
two grounds, —first, because he is a pardoned convict. 
Complaints of testimony coming from pardoned convicts come 
with little grace from counsel who themselves have resorted 
freely to the same source; who introduced Savary, Burnet, 
Bradley, and Rocheford, and would have thrust Lauber also 
on you, though not restored to his competency. This is 
more than double the quantity of such evidence offered by 
me. The testimony of the pardoned convicts is legal evi- 
dence ; and upon such an interesting and solemn inquiry as 
this is, the light of truth should be received from every ad- 
missible quarter, and counsel on both sides are justified in 
using it. Secondly, — Tully is attempted to be impeached 
by Rocheford, a fellow-convict, but he expressly says that 
Tully’s language was this,— that he never “ heard Rogers make 
any threats, more than any body else.” This is what some 
lawyers call a negative pregnant. Now it is fully in proof 
that state prisoners frequently threatened the warden. To 
say, then, that Rogers never threatened the warden more 
than any body else, regards only the quantum of threatening ; 
it admits the fact of threatening, and only excludes a greater 
degree of menace than others had made. Rocheford’s testi- 
mony then, in fact, confirms Tully in the very point to be 
proved, to wit, — some previous threats used by Rogers con- 
cerning intended violence to the warden. Besides, Tully 
could have no motive to falsify. When he first mentioned 
the threats in conversation with Capt. Robbins, the master, 
he did not expect to be a witness, nor to be pardoned, nor 
has he since had any inducement to speak an untruth; his 
imprisonment has not been shortened, and no money has 
been paid to him, even for his fees as a witness ; and he has 
testified to nothing improbable, and only to facts which other 
witnesses say were common in the prison. I have before TRIAL OF ABNER ROGERS, JR. 
alluded to the confirmation of Tully’s evidence by Warren 
B. Parker, the language used by Rogers immediately after 
performing the threat, being the precise language in which 
the threat was uttered when Tully heard it. 
I think Mr. Thomas Russell was harshly used by the pris- 
oner’s counsel. They united their talents in confusing him, 
and then took advantage of his confusion. But he is an 
honest man, and had much advantage of observation of 
Rogers. His general character is not impeached. He is in 
a responsible station, where character and truth are required 
qualifications. If his testimony is believed, it is conclusive 
upon the subject of express malice. He was not called on 
the former trial by me, because he had not volunteered his 
testimony, or told me what he knew. Had he been preju- 
diced or vindictive, he would have come forward to me when 
I was seeking evidence in the prison ; he would not have 
kept silence. He kept back from no improper motive ; but 
the fact of his not coming forward for the government repels 
the gross charges the prisoner’s counsel have made. I have 
before told you how unfortunate for the commonwealth was 
Mr. Bradford Sumner’s advice to the officers of the prison, to 
tell nobody what they knew until they came before the court. 
How were the counsel and the commonwealth to find out what 
officers knew anything, and what things any of them knew? 
Had not this advice been given, I do believe the former trial 
would have been conclusive. But Mr. Russell says he did 
give Mr. Bemis some intimations of what he knew. I must 
confess that it did seem to me that by a lapsus Ungues, or 
mistake of the question, the witness did say that he had never 
told any one before his opinion that Rogers was not insane, 
and that immediately afterwards he said that he had told Mr. 
Bemis some time ago, that he did not believe but that Rogers 
was in his right mind. There was a confusion in his evidence 
under this accidental circumstance, from which the prisoner’s 258 
TRIAL OF ABNER ROGERS, JR. 
counsel have endeavored to discredit all his testimony. But 
this is not right. He may have forgotten when and to whom 
he had expressed his opinions, and yet those opinions may 
have been very correct. The language he swears he heard 
Rogers use in April, shows both the threat of revenge, and 
the motive for it, the very motive the learned gentlemen have 
both taken so much pains to tell you is not proved in this 
case. What did Rogers say to Thomas Russell in April ? “ I 
have not a great while longer to stay, but before I leave Til 
pay the warden for it. I should not have got so much addi- 
tional sentence if it hadn’t been for him.” There is another 
part of Mr. T. Russell’s testimony very important, perhaps the 
whole key of this defence, and of the awkward efforts of 
Rogers affecting insanity afterwards, and saying that the war- 
den was not dead, that he had seen him Sunday morning, &c. 
Mr. Russel says, on Sunday morning, when Mr. Dwight prayed 
with Rogers, he used the expression in his prayer, “ that the 
prisoner might be delivered if he were insane when he did 
the deed.” Upon this Mr. Russell noticed Rogers’s face 
to flush up, as if he were pleased. Here probably is the 
origin of this defence; and Rogers had low cunning enough 
to catch the idea, and his conduct subsequent to that time 
seems to demonstrate that some peculiar speeches favoring that 
notion were adopted by him. If want of motives is of such 
great consequence in this case, consider that Thomas Russell 
can have no motive to lie or to perjure himself, in this trial; 
and if he speaks truth, you have positive evidence of express 
malice on the part of Rogers towards Mr. Lincoln, and of 
one of the causes of that malice; and this important testi- 
mony is confirmed by what Mr. Jaquith said, and by Tully’s 
evidence, all being entirely consistent and mutually confirm- 
ing the other. 
On this point of express malice, very, strong testimony still 
remains to be considered. I allude to Johnson Bean’s. He TRIAL OF ABNER ROGERS, JR. 
259 
was a candid witness, a fair man, beyond reproach, and above 
prejudice. He says, that Rogers said to him that Braman 
was a rascal, and old Lincoln another — “ that Lincoln would 
punish him for every little offence, hut that he would fix him 
before his time was out.” Here also are motives and causes 
of revenge ; and this is just such a threat as Tully heard 
him make ; it is such language as he used to Warren B. Par- 
ker after the deed, “ he had fixed the warden.” Mr. Bean 
told Mr Lincoln of this threat, and he turned it off as un- 
worthy of notice. Probably Mr. Lincoln had also heard Ro- 
gers threaten him to his face, and turned it off in the same 
way, which may account for Rogers’s boast when he gave the 
fatal stroke, “ I told you I would.” This testimony of Mr. 
Bean also adds force and credibility to Tully and Russell’s 
evidence. Here, then, are three separate, distinct, repeated 
threats, uttered at distinct periods, coming from three wit- 
nesses, whose testimony has never before been brought 
together, or communicated to each other, and all showing a 
harbored resentment, a settled purpose of personal revenge 
for supposed wrongs, often openly avowed, the very charac- 
teristics of aforethought, express malice. But Mr. Bean “ did 
not mention it at the first trial.” Well — he explains the rea- 
son. He was called to prove a particular fact; he took the 
witness’s stand just before an adjournment; he had never 
communicated the fact to the commonwealth’s counsel; he 
was hastily examined on both sides and suddenly dismissed ; 
was not interrogated on this point, and had never been a 
witness in court before. This explanation appears to me en- 
tirely satisfactory. In one point it is said, Mr. Bemis con- 
tradicts him. I do not admit this ; I think, on the contrary, 
Mr. Bemis confirms him. As this supposed contradiction 
comes from so respectable a source, and has been so strongly 
urged upon your attention by the learned counsel of the 
prisoner who last addressed you, I request your careful con- 260 
TRIAL OP ABNER ROGERS, JR. 
sideration of the testimony of both these witnesses. Mr. 
Bean swears to threats, and Mr. Bemis’s testimony as to Mr. 
Bean is this — “ I am confident Mr. Bean never mentioned 
to me, at the prison, the threats he has now testified to, in 
the same terms ; according to my notes, he had heard Rogers 
say, frequently, that the warden would suffer for punishing 
him ; not that he, Rogers, should make him suffer for it.” 
This again, is a negative pregnant. He did not mention the 
threats in the same terms; but he did mention threats, 
and that’s the question. Did he threaten to hurt Lincoln ? 
Can any one doubt it. This confirms, not confutes Mr. Bean. 
On the whole, this cumulative evidence of previous threats, 
and harbored and cherished malevolence, followed up by the 
cruel act and the diabolic boast of having accomplished the 
threatened deed, is conclusive proof of express malice — and 
the cause, manner and instrument of effecting his cruel pur- 
pose give the fullest evidence of implied malice. In the lan- 
guage of Mr. Bigelow, indeed, “ the purpose was dreadful, 
and the execution of it fiend-like ;” but Mr. Bigelow is mis- 
taken, when he says there w7ere no “ expressions of gratified 
malice or glutted revenge.” I consider what he said at the 
dreadful moment — “ I told you I would,” — the fatal stroke 
accompanying the word, and what he said just after the deed 
was done — “I have fixed the warden ” —were both indica- 
tive of “ gratified malice and glutted revenge;” and I con- 
sider there is no weight in the point urged by Mr. Bigelow, 
that the threats were some time before their execution, and no 
threats on that day or a few days before. It would have put 
Mr. Lincoln on his guard, and the officers on their duty of 
prevention; it would have been unsafe, and defeated his pro- 
ject, to have used threats just about that time, and Rogers 
boasted of being “ a smarter man than they took him to be.” 
Besides, malignity sometimes expresses its intentions, and TRIAL OF ABNER ROGERS, JR. 
261 
sometimes conceals them, and the concealment is no proof of 
its non-existence or discontinuance ; especially at times when 
disclosure would defeat its purposes. How, therefore, the 
learned gentleman, who closed for the prisoner, could say, un- 
der this strong, corroborated, confirmed and uncontradicted 
evidence of four witnesses that he felt great joy in the assu- 
rance, that there is nothing in the testimony which convicts 
the defendant of having so black a heart as he must have 
possessed to have committed this fatal act with deliberate and 
determined malice, I cannot conceive, unless it is to be attri- 
buted to that zeal of counsel which is not according to know- 
ledge, and which often blinds the mind from discovering that 
truth which every body else sees. Where he could get the 
assurance he professes to feel, and how he can “ claim ” with 
confidence your unhesitating acquittal of the prisoner of ex- 
press malice, upon the testimony before you, I am at a loss to 
imagine. 
He well says, that if the government has satisfied you that 
there was express malice, the case of the prisoner would be 
at an end. As to implied malice, arising from the act itself 
and the circumstances attending it, he says, this implied 
malice is rebutted by the proof of the insanity of the prisoner. 
I will now therefore notice briefly his argument on this part 
of the case. Enough has already been said upon the use and 
the abuse of the plea of insanity, and I pass over Mr. Bige- 
low’s remarks on those topics, nor will I discuss any further 
the law on this delicate subject. The court will sufficiently 
enlighten you on the points where the counsel differ. I do 
not know that I am not sufficiently content with the rule Mr. 
Bigelow has himself laid down at the close of his discussion 
of the law. “ If you are satisfied that the prisoner, when he 
committed the homicide, was laboring under a delusion, 
which overpowered his will, and deprived him of self-control, 
and that the act was connected with that delusion, he is enti- 262 
TRIAL OF ABNER ROGERS, JR. 
tied to a verdict of acquittal.” If this rule of law is right, 
then it is a matter of fact exclusively for your consideration, 
whether the prisoner’s case is proved to be within the rule. 
Upon this, the parties are at issue. What was the delusion, 
and what is the evidence on which they rely, to prove its 
existence and overwhelming influence ? 
My position is, that there was no delusion that overpowered 
the will. I might safely admit some vague, indefinite appre- 
hension in Rogers of future punishment, or that he was to be 
confined to the solitary cells for misconduct. This vague no- 
tion may have been derived from what Cole and Robinson 
told him at the blacksmith’s shop, or from his dreams, his 
consciousness of deserving it, or other sources ; but it never 
rose to such a degree as to overpower his will or dethrone his 
reason. It does not follow that he was insane, because he 
was under some delusion. What man living is not under 
some delusion upon some subjects ? Are all men, therefore, 
free from moral and legal restraints; or do they cease to be 
moral and accountable free agents, because they are some- 
what deluded on some points ? Where will such a doctrine 
carry us ? If this was true, human societies could not be 
preserved, — morals, law and religion would be subverted. 
And after all, this is the main question in this case. Was 
there any delusion ? What was its cause ? When did it 
commence ? What was its degree ? What was its end ? 
And what were the real, actual consequences of the supposed 
delusion ? The learned gentleman does not state my argu- 
ment, but raises a man of straw of his own, says it belongs to 
me, and then proceeds formally to demolish it; a very easy 
mode of argumentation, and sometimes successful; but it 
never prevails when the other side makes the jury distinctly 
understand his own argument. Here is a large mass of facts 
in evidence before you ; and the question is, what is the le- 
gitimate and truthful inference to be drawn from those facts ? TRIAL OF ABNER ROGERS, JR. 
263 
Our object is, to penetrate the recesses of Abner Rogers’s 
mind, at a particular period. The learned gentleman sees 
insanity there ; I do not. He enforces his views on you ; I 
will state mine. You are to take the facts, one by one, and 
determine who is right. Perhaps you will find that ingenuity 
can raise a plailsible argument on both sides out of these 
facts ; that is, that there are some facts which seem to support 
each hypothesis, and some facts which as well support the one 
side as the other. Hence the difficulty in this case. Let me 
ask you to view the facts which are credibly proved, or justly 
inferred from the proof, in connection with my explanation; 
and the very statement on my part will answer and refute 
much of the closing argument, and relieve the prosecution 
from many of the fancied dilemmas into which the gentleman 
supposes he has placed it. Suppose, for a moment, this to 
be a true history of the case, and then consider whether the 
evidence does not warrant the belief that it is the truth, or, 
at least, whether every fact relied upon in the defence, as 
proof of insanity, is not entirely and satisfactorily reconcilable 
with this statement, and as much so as upon the opposite 
hypothesis. 
Abner Rogers was a lazy, reckless, and wicked person. 
Mr. Braman was in the habit of reporting him for not doing 
his work right, and Rogers told Bean that Braman was a ras- 
cal, and wanted no better sport than to report him. For fre- 
quent violations of the rules he received minor punishments 
not recorded. He told Bean that Lincoln would punish him 
for every offence, and that Lincoln also was a rascal. More- 
over, Rogers had a habit of making noises in the night. This 
was somewhat of a constitutional failing. His father and 
relatives say it never was uncommon with him. For these 
night noises he was liable to be removed into the cells of the 
old prison, at a distance from the dormitories of the other 
prisoners, whose repose he disturbed. The noises he made 264 
TRIAL OF ABNER ROGERS, JR. 
in the night were occasional only, and it was thought he 
could and ought to control and check them. The officers 
threatened to report them. He wished to avoid such reports ; 
he anticipated being punished for them. He attributed his 
noises to the involuntary effect of his dreams, or his fancy of 
having heard voices, alarming him for his safety, and even for 
his life. He sought compassion, commiseration, by these 
plausible stories, constantly repeated. Savary and Gardiner 
say his noises were like those made by a man just awakening 
out of a frightful dream, the common effect of nightfnare. 
Nervous distress is easily mistaken for loss of mind. The 
appearances resemble each other. These idle stories of hear- 
ing Robinson’s and Cole’s voices,, the distressing apprehen- 
sion of being murdered, &c., were fictions to excite com- 
passion,— excuses to ward off punishment, — not feigned 
insanity in anticipation of killing the warden! Though 
a settled, harbored desire of revenge upon the warden 
existed, manifested by repeated and undisguised threats, 
yet Rogers had never resolved upon the particular moment or. 
the special means of accomplishing his object. * He waited for 
time and opportunity, without making any particular prepa- 
ration, and until the most favorable opportunity offered never 
fixed the time of doing the deed, and never probably would 
have attempted it then, unless his passions had been excked 
by that day’s showering. His whole conduct was altered 
after that day’s punishment. He was passionate in his cell, 
refractory in coming out of it, and in the work-shop restless, 
and wanted to leave the shop; went often and needlessly to 
the blacksmith’s shop and down to Braman’s apartment; he 
was evidently seeking the warden; stood at the blacksmith’s 
door and looked into the yard, was told the warden was 
coming soon, and betrayed the agitation common to men who 
are on the point of gratifying their revenge by a desperate 
and overwhelming atrocity. The warden came into the TRIAL OF ABNER ROGERS, JR. 
265 
shop; was seen and watched by Rogers ; the favorable op- 
portunity offered, the means were at hanff, the passions 
prompted the attempt, the long-threatened vengeance seized 
the fatal moment, and the exulting declaration, I told you I 
would, entered the ears of the victim while the cold steel by 
repeated thrusts entered his body, and cut his throat. But 
why, it is asked, do so feloniously an act in presence of so 
many witnesses, and with such certainty of detection and 
with no possibility of escape ? Why not wait until a secret 
opportunity occurred after his imprisonment was over and he 
was out of the prison ? Ah ! in reply it must be asked, was 
passion ever reasonable or prudent ? Is not revenge\ sweet, to 
some sweeter than life, and often reckless as to consequences ? 
Was life itself of any value to Abner Rogers ? Let us take his 
own words; “ I have fixed the warden, and will have a rope 
about my own neck to-night.” The gratification of his ven- 
geance was dearer to him than his life. What did he say of 
Watts, and his suicide ? “He was a fool he did not kill the 
warden before he killed himself.” Rogers did not mean to be 
such a fool; he effects the murder of the warden before he 
attempts to destroy himself. Suicide is to follow murder, and 
that very night too, if practicable. He was not ashamed of the 
deed of death. He did not want to escape. He expected to 
be hung, and was willing. He said to Mr. Fogg, “No mor- 
tal could save him from hanging, for it would never do to 
overlook his offence, the warden’s office was so responsible 
an one.” At first, he believed he should be executed, not 
thinking of self-defence or insanity. But if you believe Tho- 
mas Russell, a ray of hope darted into his mind when he 
heard Mr. Dwight pray that he might be saved if he was in- 
sane. After that he said the warden was alive, he had seen 
him that day, and he put on some awkward but inconstant 
affectations of insanity, soon given up, however, probably by 
his despairing that anybody could be convinced by his non- 266 
TRIAL OF ABNER ROGERS, JR. 
sense and foolish talk. He pretended, that on the night of 
the 20th June he thought he heard Mr. Bemis and the gov- 
ernor coming to take him out of the prison. There were 
other things in his conduct and speech, which at times had 
the appearance of feigned insanity, but they were soon aban- 
doned, and from that time to this he has not been sick in 
body or mind. His pulse subsided, and his behavior has been 
like that of other persons in Leverett street jail. Dr. Walker 
rightly estimated his bodily and mental condition, and sub- 
sequent facts have proved the accuracy of Dr. Walker’s 
judgment. 
Now, for argument’s sake, suppose this narrative to be the 
exact truth, and my inquiry of you is, whether every fact re- 
lied upon by Mr. Bigelow as proof of insanity is not entirely 
and obviously reconcilable with this statement of a desire to 
escape punishment, and also to inflict revenge ; and whether 
those facts given in evidence may not as plainly be accounted 
for upon the hypothesis and presumptions of his sanity as of 
his supposed insanity ? If so, then the presumptions of law, 
the presumptions of his being of sound mind, are not over- 
thrown by such evidence, and will stand to govern your de- 
cision. I shall very rapidly pass over the particular facts Mr. 
Bigelow relied upon at such length. I do not intend to omit 
any of them. 
He said, Rogers would not select his lonely cell and the 
night time to affect insanity ; and its breaking out then and 
there was proof of its reality. The answer is, that he made no 
selection, it was a mere dream, nightmare, or those constitu- 
tional noises he occasionally made in the night, and the evi- 
dence supports this hypothesis more than the other. It was 
no affectation of noise, no feigned affright, but the common 
effect of distress in sleep. Then the appearance of fright, 
agitation, trembling, alarm, all are common to those who have 
been disturbed by night visions of the horrible kind ; every TRIAL OF ABNER ROGERS, JR. 
267 
one has known such instances in their friends without suspect- 
ing them of insanity, real or feigned. So the increase of 
them from Monday to Thursday, is accounted for by the pun- 
ishment so constantly following the night noises. The tears 
and prayers on Thursday afternoon may as readily be ascrib- 
ed to his roused passions after the showering, as to any other 
cause; the meditating such a cruel act naturally agitating the 
mind and affecting the feelings. And there is no such impos- 
sibility in these things being the result of pretence ; more art- 
ful things than these have been done by those who have long 
deceived others. As to the supposed absence of motives of 
revenge, the learned gentleman certainly forgot or purposely 
omitted a great deal of evidence on this head, to which I 
have already directed your attention; and I have answered 
what was said upon the certainty of detection and the hope- 
lessness of escape. It is said the deed was done in the day- 
time ; certainly, because there was no opportunity in the 
night. And that there was no accomplice. Is an accomplice 
necessary to prove whether a man is sane or insane ? Is the 
presence or want of an accomplice in crime any criterion of 
insanity ? But he was to be discharged shortly, in two 
months. Therefore he might afterwards never have the 
chance to do the deed ; and, besides, he repeatedly threaten- 
ed he would do it before he left the prison. As to escape, he 
did not desire it; his own life was of no value to him in com- 
parison with the gratification of revenge. But there was no 
punishment before Monday, when these appearances began. 
It was not an appearance on Monday, but a reality, a horrid 
dream ; there was no affectation in that, and I have always 
said so. Also it is said, if he had a motive, and contemplated 
the act, he would have provided an instrument. The answer 
is, dangerous weapons were always at hand. Malitia supplet 
arma. But he could not conceal weapons without detection, 
which would defeat his purpose. Also, he could not devise 268 
TRIAL OF ABNER ROGERS, JR. 
beforehand when he should have an opportunity to do the 
deed. I have already said his own knife was not so good for 
the assassination as Reed’s longest knife; and Mr. Bigelow’s 
argument, on this head, is refuted by the fact, and the exhi- 
bition of the knives. Then the argument derived from the 
opinions of the officers of the prison ; the balance of testi- 
* 
mony is on our side. We have the warden himself, the 
deputy-warden Payne, Fogg, Russell, Bean, Dr. Walker, and 
others, against Crowninshield, Sargent, Savary, &c. Our 
witnesses had had most experience in such cases; their wit- 
nesses, excepting the medical testimony and Dr. Dwight, little 
or no experience in such cases. Then it is confidently argued 
that feigned insanity always follows and never precedes the 
homicidal act. We say that that is just this case. We never 
contended that the previous pretences were for any other 
purpose than for warding off punishment for the noises; and 
we now contend, upon Thomas Russell’s testimony, that 
Rogers first caught the idea of being saved by insanity from 
the expressions used by Mr. Dwight in his prayer. As to the 
admissions to Patterson and others by Rogers, that all his 
nonsense about hearing the voices of Cole and Robinson was 
mere imagination, certainly they are quite as reconcilable with 
our hypothesis, and that he knew he had been lying, as they 
are proof of any insanity on his part. Arid it is asked, if 
Rogers could wish to deceive his fellow-prisoners ? A plain 
answer is, yes ; for they have often considerable influence 
upon the warden in imposing, or relieving from, punishment. 
He did not talk with them with a view to have them witnesses 
in court, but to have them appealed to or inquired of, if ne- 
cessary, by the officers or warden. The argument derived 
from the fact of his going to Dr. Walker Thursday morning, 
to get into the hospital, is based on the fallacy that he had 
then fixed upon committing the deed, that day, or afternoon, 
or week, which he had no idea of doing then ; and he con- TRIAL OF ABNER ROGERS, JR. 
269 
ceived the idea of doing it that day, only after he got into 
such a passion for being punished and showered at twelve 
o’clock that day. So, also, there is no weight in the argu- 
ment, that he would overact his part before Dr. Walker. He 
knew Dr. Walker too well, and he had no occasion to feign 
insanity before him at nine o’clock that morning. But it is 
also said that his calmness after the act, and not pretending 
insanity immediately after the deed, nor in Leverett street jail, 
and not now also before you, — are circumstances showing 
he was really insane when he did the felonious act. I do not 
see why this freedom from insanity after the deed does not as 
well support our theory, that he never was insane, as the other 
hypothesis. Besides, after Mr. Dwight’s prayer, there was 
some affectation, as I have before stated. Then the gentle- 
man relies on sleeplessness, and a rapid pulse. As to the 
pulse, it is no criterion of insanity. He had excitement 
enough, before and after the deed, to keep his mind agitated 
and his pulse high — and the pulse is affected by so many 
secret causes ! That he did not sleep much, depends on his 
own declaration, which cannot be relied upon ; there is no 
other proof. He seemed to have awakened from sleep when 
Savary and Gardiner visited him, and once when Dr. Bell 
visited him. The counsel and the medical men say that this 
form of insanity, hearing false voices, &c., is not common, 
seldom or never feigned, and not likely to be known or 
attempted by so illiterate and ignorant a person as Rogers. 
I answer, all this is true, and Rogers did not pretend to be 
insane, or feign this form of insanity. He had a dream at 
one or more times — at others, he actually did hear Cole and 
Robinson say such and such things, and these things were 
alluded to by him, not as evidence of his being insane, but 
as excuses to avoid the punishment for making the noises, &c. 
to excite commiseration, and prevent the officers from re- 
proving him. Then self-pollution is relied upon as proof of 270 
TRIAL OF ABNER ROGERS, JR„ 
his insanity. The answer is, that generally, it is only a pre- 
disposing cause — and further, that when insanity is pro- 
duced by that cause, it continues long, and seldom or never 
is cured all at once by a sudden outbreak and homicidal act. 
Lastly, I come to the medical opinions. I do not think Dr. 
Walker has been fairly treated by the counsel, by Mr. Dwight, 
nor by Dr. Bell. I think Mr. Dwight and Dr. Bell should 
both have consulted Dr. Walker, and not go into his depart- 
ment, visit one of his patients, and carry on so important an 
examination and investigation as this without his knowledge, 
or speaking to him on the subject. I thought professional 
comity or courtesy would have induced Dr. Bell to have men- 
tioned to Dr. Walker what his object was, and to make some 
inquiries about Rogers of him, who had known him for so 
many years. I am still unable to see why this examination 
was so secret between the two friends, Dr. Bell and Mr. 
Dwight. It has the semblance of taking a side against the 
physician of the institution without reason, who has had so 
much experience, and stands so high in his profession, and 
whose intercourse with Rogers for such a series of years, 
gave him the means of being so useful to persons really de- 
sirous of discovering the truth on such an interesting occa- 
sion. I think the counsel have been unnecessarily severe 
upon Dr. Walker, and undertaken to judge of him in matters 
upon which he is far better a judge than either of them. It 
is also triumphantly asked why I have not called other physi- 
cians, and ask them to attend this whole trial, and then give 
their opinions in opposition to Dr. Bell’s and Dr. Woodward’s. 
1 answer, that at the former trial, I was wholly surprised by 
their evidence, which had never been disclosed to me, and 
after they had expressed their opinions, which were spread 
through the community in the printed newspaper reports, it 
would be no easy matter to find a doctor willing to volunteer 
to place himself in the odious position of antagonists to gen- TRIAL OF ABNER ROGERS, JR. 
271 
tlemen of such high eminence, however much he differed in 
opinion from them ; and I have reason to believe such differ- 
ence of opinion in truth exists among the profession. Be- 
sides, I had for the government that medical officer charged 
with the care of the institution, who knew Rogers well before 
the deed was committed, and who had had experience both 
in cases of real and of affected insanity, and I thought, and 
still think, his opinion worth more than that of all those who 
knew nothing of Rogers until after he had committed this 
flagrant murder, and whose opinions even now are based in 
part upon testimony coming from such polluted sources as 
Savary, Bradley and Burnet, for even Drs. Bell, Woodward 
and Ray all say, that now supposing all the evidence given at 
the trial to be true, then their opinion is such as they have 
expressed. If part of the foundation fails, no great reliance 
can be placed upon the residue of the edifice. 
These are all the facts and circumstances commented and 
relied upon by the prisoner’s counsel, not before specially 
noticed and answered by me. And now recurs the question, 
is there anything in any of them irreconcilable with the fact 
of Abner Rogers being of sound mind, and prompted by 
human resentment ? In other words, is there conclusive 
proof that when the fatal deed was done his reason was over- 
thrown, his moral sense ruined, his self-control annihilated, 
his impulse irresistible, his delusion overpowering, and his 
consciousness of right and wrong nullified ? I maintain there 
is not any satisfactory proof of any delusion on his mind at 
that tragic moment; it is mere conjecture, theory, supposi- 
tion ; and even if there were some delusion, there is not any 
proof that it was strong or overwhelming, or that it produced 
an irrepressible impulse for self-defence ; that too rests in 
theory and conjecture, a gratuitous hypothesis; and lastly, 
there is no proof that Rogers himself ever connected in his 
own mind the cruel act and the supposed delusion; he never TRIAL OF ABNER ROGERS, JR. 
uttered a word signifying any such connection; he never 
pretended that he killed the warden to save his own life. 
This too, the supposed connection between the delusion and 
the act, is the work of conjecture, the after-thought of mis- 
placed benevolence and professional ingenuity ; so that taking 
the rule of law to be as the learned counsel of the prisoner 
laid it down, the evidence laid before you in this case does 
not bring their client within its protection, and the burden 
of proof is on them. 
The implied malice, then, is not rebutted by proof of 
insanity, and of course gives character to the homicide; it is 
wilful murder. 
If there was express malice, the prisoner is guilty. 
If there was implied malice, the prisoner is guilty. 
If irresistible and unconscious insanity is not proved beyond 
a doubt, the prisoner is guilty. 
And such is the conclusion of this important trial; the 
government’s case is proved; the defence fails on the testi- 
mony laid before you. 
But before I close, I must say that you are to consider if 
the court so instruct you, that if a partial insanity is proved, 
but the prisoner might have restrained his impulse, whether 
malice being rebutted by the delusion, this homicide may not 
yet be manslaughter. I shall not argue this, but refer you to 
the instructions of the court, who are familiar with the law in 
this particular. 
And now, gentlemen, I commit this important cause to 
your decision; 1 have gone over all the ground I proposed; 
it is of the highest importance to the prisoner, of the greatest 
importance to the public, and of very great importance to 
yourselves, who are under the most sacred obligations of re- 
turning to this court the words of truth and justice in your 
verdict. Your position is responsible, your duty arduous; 
let your action be such as your judgment will now and 
hereafter approve, and your conscience never condemn. TRIAL OF ABNER ROGERS, JR. 
273 
Saturday morning, the court came in at nine o’clock, and 
the Chief Justice proceeded to charge the jury. He com- 
menced by some preliminary remarks to the following effect: 
The great object of punishment by law is to afford security 
to the community against crimes, by punishing those who vio- 
late the laws; and this object is accomplished by holding out 
the fear of punishment, as the certain consequence of such vio- 
lation. Its effect is to present to the minds of those who are 
tempted to commit crime, in order to some present gratifica- 
tion, a strong counteracting motive, in the fear of punishment. 
But this object can only be accomplished when such motive 
acts on an intelligent being, capable of remembering that the 
act about to be committed is wrong, contrary to duty, and 
such, as in any well-ordered society, would subject the offend- 
er to punishment. It might, in some respects, be more accu- 
rate to say, that the party thus acting under a temptation, must 
have memory and intelligence, to recollect and know that the 
act he is about to commit is a violation of the law of the land. 
But this mode of stating the rule might lead to a mistake of 
another kind, inasmuch as it would seem to hold up the idea, 
that before a man can be justly punished, it must appear that 
he knew that the act was contrary to the law of the land. 
But the law assumes that every man has knowledge of the laws 
prohibiting crimes ; an assumption not strictly true in fact, but 
necessary to the security of society, and sufficiently near the 
truth for practical purposes. It is expressed by the well known 
maxim, ignorantia legis neminem excusat, — ignorance of the 
law cannot be pleaded as an excuse for crime. The law as- 
sumes the existence of the power of conscience in all persons of 
ordinary intelligence; a capacity, to distinguish between right 
and wrong, in reference to particular actions; a sense of duty 
and of right. It may also be safely assumed, that every man 274 
TRIAL OF ABNER ROGERS, JR. 
of ordinary intelligence knows that the laws of society are 
so framed and administered, as to prohibit and punish wrong 
acts, violations of duty towards others, by penalties in some 
measure adapted to the nature and aggravation of the wrong 
and injurious acts thus done. If therefore it happens to be true 
in any particular case, that a person tempted to commit a 
crime, does not know that the particular act is contrary to 
positive law, or what precise punishment the municipal law 
annexes to such act; yet if the act is palpably wrong in 
itself, if it be manifestly injurious to the rights of another, as 
by destroying his life, maiming his person, taking away his 
property, breaking into or burning his dwelling-house, and the 
like, there is no injustice in assuming that every man knows 
that such acts are wrong, and must subject him to punishment 
by law ; and therefore it may be assumed, for all practical 
purposes, and without injustice, that he knows the act is con- 
trary to law. This is the ground upon which the rule has 
been usually laid down by judges, when the question is, 
whether a person has sufficient mental capacity to be amena- 
ble for the commission of a crime; that he must have suffi- 
cient mental capacity to distinguish between right and wrong, 
as applied to the act he is about to commit, and to be con- 
scious that the act is wrong ; instead of saying that he must 
have sufficient capacity to know that it is contrary to the law 
of the land : because this power to distinguish between right 
and wrong, as applied to the particular act, — a power which 
every human being, who is at the same time a moral agent, 
and a subject of civil government, is assumed to possess, — is 
the medium by which the law assumes that he knows that the 
same act which is a violation of high moral duty, is also a 
violation of the law of the land. Whereas, if it were stated 
that a person must have sufficient mental capacity to know 
and understand that the act he is about committing is a viola- 
tion of the law of the land, it might lead to a wrong conclu- 275 
TRIAL OF ABNER ROGERS, JR. 
sion, and raise a doubt in regard to persons ignorant of the 
law. There is no doubt that many a man is held responsible 
for crime, and that, rightfully, who might not know that the 
act he was about committing was contrary to the law of the 
land, otherwise than as a moral being he knows that it is 
wrong, a violation of the dictates of his own natural sense of 
right and wrong. 
To recur, then, to what has been already stated: In order that 
punishment may operate by way of example, to deter others 
from committing criminal acts, when under temptation to do 
so, by presenting a strong counteracting motive, the person 
tempted must have memory and intelligence, to know that the 
act he is about to commit is wrong, to remember and under- 
stand, that if he commits the act, he will be subject to the 
punishment, and reason and will, to enable him to compare 
and choose between the supposed advantage or gratification 
to be obtained by the criminal act, and the immunity from 
punishment which he will secure by abstaining from it. 
A person, therefore, in order to be punishable by law, or 
in order that his punishment by law, may operate as an ex- 
ample to deter others from committing criminal acts, under 
like circumstances, must have sufficient memory, intelligence, 
reason and will, to enable him to distinguish between right 
and wrong, in regard to the particular act about to be done, 
to know and understand that it will be wrong, and that he 
will deserve punishment by committing it. 
This is necessary on two grounds : 
1st. To render it just and reasonable to inflict the punish- 
ment on the accused individual, and 
2d. To render his punishment by way of example, of any 
utility to deter others in like situation, from doing similar 
acts, by holding up a counteracting motive in the dread of 
punishment, which they can feel and comprehend. 276 
TRIAL OF ABNER ROGERS, JR. 
With more immediate reference to the case, the Chief Jus- 
tice proceeded as follows : 
In order to constitute a crime, a man must have intelli- 
gence and capacity enough to have a criminal intent and pur- 
pose ; and if his reason and mental powers are either so defi- 
cient that he has no will, no conscience or controlling mental 
power, or if through the overwhelming violence of mental 
disease his intellectual power is for the time obliterated, he is 
not a responsible moral agent, and is not punishable for 
criminal acts. 
But these are extremes easily distinguished, and not to be 
mistaken. The difficulty lies between these extremes, in the 
cases of partial insanity, where the mind may be clouded and 
weakened, but not incapable of remembering, reasoning and 
judging, or so perverted by insane delusion, as to act under 
false impressions and influences. In these cases, the rule of 
law, as we understand it, is this ; a man is not to be excused 
from responsibility if he has capacity and reason sufficient to 
enable him to distinguish between right and wrong, as to the 
particular act he is then doing, a knowledge and conscious- 
ness that the act he is doing is wrong and criminal, and will 
subject him to punishment. In order to be responsible he 
must have sufficient power of memory to recollect the rela- 
tion in which he stands to others, and in which others stand 
to him; that the act he is doing is contrary to the plain dic- 
tates of justice and right, injurious to others, and a violation 
of the dictates of duty. 
On the contrary, although he may be laboring under par- 
tial insanity, if he still understands the nature and character of 
his act and its consequences, if he has a knowledge that it is 
wrong and criminal, and a mental power sufficient to apply 
that knowledge to his own case, and to know that if he does 
the act he will do wrong and receive punishment, such partial TRIAL OF ABNER ROGERS, JR. 
insanity is not sufficient to exempt him from responsibility for 
criminal acts. 
If then it is proved to the satisfaction of the jury, that the 
mind of the accused was in a diseased and unsound state, 
the question will be, whether the disease existed to so high a 
degree, that for the time being, it overwhelmed the reason, 
conscience and judgment, and whether the prisoner in com- 
mitting the homicide acted from an irresistible and uncontrol- 
lable impulse ; if so, then the act was not the act of a voluntary 
agent, but the involuntary act of the body without the con- 
currence of a mind directing it. 
The character of the mental disease relied upon to excuse 
the accused in this case, is partial insanity, consisting of mel- 
ancholy, accompanied by delusion. The conduct may be in 
many respects regular, the mind acute, and the conduct ap- 
parently governed by rules of propriety, and at the same 
time there may be insane delusion by which the mind is per- 
verted. The most common of these cases is that of mono- 
mania, when the mind broods over one idea and cannot be 
reasoned out of it. This may operate as an excuse for a 
criminal act in one of two modes — Either the delusion is 
such that the person under its influence has a real and firm 
belief of some fact, not true in itself, but which if it were 
true, would excuse his act; as where the belief is, that the 
party killed had an immediate design upon his life, and under 
that belief the insane man killed him in supposed self-defence. 
A common instance is where he fully believes that the act 
he is doing is done by the immediate command of God, and 
he acts under the delusive but sincere belief that what he is 
doing is by the command of a superior power, which super- 
sedes all human laws, and the laws of nature : or 
2d. This state of delusion indicates to an experienced per- 
son that the mind is in a diseased state, that the known ten- 
dency of that diseased state of the mind, is to break out into TRIAL OF ABNER ROGERS, JR. 
sudden paroxysms of violence, venting itself in acts of homi- 
cide, or other violent acts towards friend or foe indiscrimi- 
nately, so that although there were no previous indications 
of violence, yet the subsequent act, connecting itself with the 
previous symptoms and indications, will enable an experienc- 
ed person to say, that the outbreak was of such a character, 
that for the time being it must have overborne memory and 
reason ; that the act was the result of the disease and not of 
a mind capable of choosing; in short, that it was the result of 
uncontrollable impulse, and not of a person acted upon by 
motives and governed by the will. 
The questions, then, in the present case, will be these : 
1. Was there such a delusion and hallucination ? 
2. Did the accused act under a false but sincere belief that 
the warden had a design to shut him up, and under that pretext, 
destroy his life, and did he take this means to prevent it ? 
3. Are the facts of such a character, taken in connection 
with the opinions of the professional witnesses, as to induce 
the jury to believe that the accused had been laboring for sev- 
eral days under monomania, attended with delusion ; and did 
this indicate such a diseased state of the mind that the act 
of killing the warden was to be considered as an outbreak or 
paroxysm of disease, which for the time being, overwhelmed 
and suspended reason and judgment, so that the accused was 
not an accountable agent ? 
If such was the case, the accused is entitled to an acquit- 
tal ; otherwise, as the evidence proves the fact of killing be- 
yond all doubt, without provocation, by the use of a deadly 
weapon, and attended with circumstances, of violence, cruelty, 
and barbarity, he must undoubtedly be convicted of wilful 
murder. 
The Chief Justice then proceeded to sum up the case, and 
apply the rules and principles to the various facts and circum- 
stances disclosed in the evidence. In the course of the TRIAL OF ABNER ROGERS, JR. 
279 
charge, and in the analysis of the evidence, the Chief Justice 
made some remarks upon the nature of the testimony of med- 
ical witnesses to the following effect. 
The opinions of professional men, on a question of this de- 
scription, are competent evidence, and in many cases are enti- 
tled to great consideration and respect. The rule of law, on 
which this proof of the opinion of witnesses, wrho know nothing 
of the actual facts of the case, is founded, is not peculiar tomed- 
ical testimony, but is a general rule, applicable to all cases, 
where the question is one depending on skill and science, in 
any peculiar department. In general, it is the opinion of the 
jury which is to govern, and this is to be formed upon the 
proof of facts laid before them. But some questions lie be- 
yond the scope of the observation and experience of men in 
general, but are quite within the observation and experience of 
those whose peculiar pursuits and profession have brought 
that class of facts frequently and habitually under their con- 
sideration. Shipmasters and seamen have peculiar means of 
acquiring knowledge and experience in whatever relates to 
seamanship and nautical skill. When, therefore, a question 
arises in a court of justice, upon that subject, and certain facts 
are proved by other witnesses, a shipmaster may be asked his 
opinion as to the character of such acts. The same is true 
in regard to any question of science, because persons conver- 
sant with such science have peculiar means, from a larger and 
more exact observation, and long experience in such depart- 
ment of science, of drawing correct inferences from certain 
facts, either observed by themselves, or testified to by other 
witnesses. A familiar instance of the application of this prin- 
ciple occurs very often in cases of homicide, when upon cer- 
tain facts being testified to, by other witnesses, medical per- 
sons are asked, whether, in their opinion, a particular wound 
described would be an adequate cause, or whether such wound 
was, in their opinion, the actual cause of death, in the partic- 280 
TRIAL OP ABNER ROGERS, JR. 
ular case. Such question is commonly asked without objec- 
tion ; and the judicial proof of the fact of killing often de- 
pends wholly or mainly upon such testing of opinion. It is 
upon this ground, that the opinions of witnesses, who have 
long been conversant with insanity in its various forms, 
and who have had the care and superintendence of insane 
persons, are received as competent evidence, even though 
they have not had opportunity to examine the particular pa- 
tient, and observe the symptoms and indications of disease, 
at the time of its supposed existence. It is designed to 
aid the judgment of the jury, in regard to the influence 
and effect of certain facts, which lie out of the observation 
and experience of persons in general. And such opinions, 
when they come from persons of great experience, and in 
whose correctness and sobriety of judgment just confidence 
can be had, is of great weight, and deserves the respectful 
consideration of a jury. But the opinion of a medical man 
of small experience, or of one who has crude and visionary 
notions, or who has some favorite theory to support, is entitled 
to very little consideration. The value of such testimony will 
depend mainly upon the experience, fidelity, and impartiality 
of the witness who gives it. 
One caution, in regard to this point, it is proper to add. 
Even when the medical, or other professional witnesses, have 
attended the whole trial, and heard the testimony of the other 
witnesses, as to the facts and circumstances of the case, they 
are not to judge of the credit of the witnesses, or of the truth 
of the facts thus testified by others. It is for the jury to 
decide whether such facts are satisfactorily proved. And the 
proper question to be put to the professional witnesses is this : 
If the symptoms and indications testified to by other witnesses 
are proved, and if the jury are satisfied of the truth of them, 
whether, in their opinion, the party was insane, and what was 
the nature and character of that insanity ; what state of mind TRIAL OF ABNER ROGERS, JR. 
281 
did they indicate; and what they would expect would be the 
conduct of such a person, in any supposed circumstances ? 
In the course of his directions to the jury, the Chief Justice 
further stated, that the ordinary presumption is, that a man is of 
sound mind, until the contrary appears ; and, in order to shield 
one from criminal responsibility, that presumption must be re- 
butted by proof of the contrary, satisfactory to the jury. 
Such proof may arise, either out of the evidence offered by 
the prosecutor to establish the case against the accused, or by 
distinct evidence, offered on his part. In either case, it must 
be sufficient to establish the fact of insanity, otherwise the 
presumption will stand. 
The Chief Justice having concluded his charge at half past 
eleven o’clock, the jury retired, and at half past three, P. M., 
came in to ask further instructions upon the two questions, — 
“Must the jury be satisfied beyond a doubt, of the insanity 
of the prisoner, to entitle him to an acquittal ? ” 
“ And, what degree of insanity will amount to a justifica- 
tion of the offence ? ” 
On the first point, the Chief Justice repeated his foregoing 
remarks upon the same head ; and added, that if the preponde- 
rance of the evidence were in favor of his insanity — if its 
bearing and leaning, as a whole, inclined that way — they 
would be authorized to find him insane. 
On the second point, he added nothing material to the 
statement of law already made. 
The jury again retired, and at half past four brought in a 
verdict of “ Not Guilty by reason of Insanity.” 
The verdict was received with loud applause from the 
spectators, which was immediately checked. 
The court having inquired of the prisoner’s counsel if they 
proposed to offer further testimony upon his present state of 
sanity, and being informed that it was the prisoner’s own wish 282 
TRIAL OF ABNER ROGERS, JR. 
to be sent to the State Lunatic Hospital, stated that they were 
satisfied, from the opinions already expressed by the medical 
witnesses, that it would not be safe to do otherwise than order 
his commitment, as a person dangerous to go at large; and 
accordingly directed his confinement in the State Lunatic 
Hospital at Worcester. APPENDIX. 
Some weeks after the trial, and when the Preface and most of 
the Report was printed, we learned of Rogers’s death, by suicide, 
at the Hospital. The newspaper accounts represented that he 
suddenly bolted through a window in the second story, head first, 
and was taken up senseless, after a fall of twelve or fourteen feet. 
The act was said to be so instantaneous, that he was only seen as 
his feet were going out of the window, as if in the act of diving, 
and the noise made by it was mistaken by those sitting near for 
the report of a pistol or gun. Dr. Woodward, the superintendent, 
being absent at the time, we thought authentic particulars of the 
unhappy patient’s state of mind, during his stay at the hospital and 
at the time of his suicide, of sufficient importance to delay the 
publication of the trial till they could be added. Accordingly, on 
Dr. Woodward’s return, we addressed him the following note. 
Dear Sir, 
Boston, July 12, 1844. 
Having learned of the death of Abner Rogers, Jr. at the State 
Lunatic Hospital, since the commencement of the publication of 
his trial, and believing that the circumstances accompanying his 
suicide will probably tend to throw light upon the question of his 
sanity, at the time of his homicide of Mr. Lincoln, will you do us 
the favor to communicate an account of that event, and also any 
particulars relative to his state of mind and physical condition, 284 
APPENDIX. 
while under your care, which you think will prove interesting in 
the history of his case ? Will you be so good, also, as to state 
whether you have seen any reason to change, or, on the other 
hand, have been more strongly confirmed in the opinion which you 
expressed upon the trial, in regard to his insanity ? 
As early an answer as your engagements will permit, will oblige 
us, as we have thought this account so important, as to delay our 
publication, till you could furnish it upon your return. 
We are, very respectfully, your obedient servants, 
George T. Bigelow, 
George Bemis. 
Samuel B. Woodward, M. D. 
Superintend't of Mass. Lunatic Hospital. 
In reply to this, Dr. Woodward wrote as follows : — 
State Lunatic Hospital, 
Worcester, July 17, 1844. 
Gentlemen, 
Your letter of the 12th instant came to me to day, on my return 
from a journey of ten weeks. Rogers’s death took place while I 
was absent. Before I left, he had worked at mattress-making most 
of the time, and seemed pleased with his work. When he came 
to the hospital he was not quite well, had a frequent pulse, and 
suffered from restlessness and want of sleep. I counted his pulse 
repeatedly for some days; always found it over 100 per minute; 
once, 102; once, 104. He was rather pale, and looked anxious. 
These examinations were made on the 5th, 6th, and 8th of Febru- 
ary, and are noted on our record of his case. On the 30th of 
March, and a few days after, he had another turn of sleeplessness. 
He complained of headache, vertigo, and loss of appetite. He 
looked ill, and was quite irritable ; and though pleasant, was per- 
haps somewhat suspicious. This turn passed off, and he appeared 
as well as before; worked steadily every day, and seemed to enjoy 
himself, and feel satisfied with his place ; but talked some with the APPENDIX. 
285 
patients with whom he was associated about going away. I left 
for the south on the 7th of May. At this time he appeared as well 
as usual, was cheerful and steady at work, attended prayers every 
evening, and religious worship on the Sabbath, and was calm 
and attentive at both. About the 15th of May he was again 
excited, had headache, frequent pulse, furred tongue, and bad 
taste in his mouth, which he attributed to bad food. He told 
an associate that the food offered him was a corpse: he could 
smell it. He was restless and suspicious for some days, and 
apprehended that there was an intention of poisoning him. He 
took physic, but made a successful effort to throw it up, saying 
that he was told there was oil of vitriol in it. He ate little, and 
did not work much the week of his death; said that he saw evil 
spirits in his room, and smelt corpses under his bed. His suspi- 
cion that he was to be poisoned or injured in some way, became 
quite strong, and was increased by these delusions, which now 
seemed to get firm hold of his mind. He did not sleep from fear, 
believing that constant vigilance was his only security. During 
this time he looked ill, appeared anxious and distressed. He 
talked a good deal, and although jealous of those around him, he 
was pleasant, and manifested no desire to injure himself or others. 
He desired to go to prayers the night he made the fatal plunge, 
and was not particularly uneasy till the services were nearly 
closed. He asked an officer near him to go out with him; that 
is, to his own room. He told him the service was nearly ended. 
He then applied to his attendant, who also told him the same. 
He said to a patient near him, in a whisper, that the room was 
full of dead bodies. He appeared greatly agitated and appre- 
hensive. He was not probably conscious of anything after the 
leap, till his death, thirty-six hours after. While at work in the 
shop, some days before his death, he appeared uneasy and suspi- 
cious, and looked wild and excited. He stepped into an adjoining 
shop, looked about anxiously, and returned to his work without 
speaking. During this week he appeared much as he did the 
week previous to the homicide. 
I have no idea that Rogers intended to commit suicide. His 
only object was to escape from dangers, which then seemed to 286 
APPENDIX. 
cluster around him. He probably acted from impulse, and as is 
usual in such cases, was wholly regardless of the consequences 
of his movements at the time. He stated to the officers, repeat- 
edly, that he should live but a few days, and wished that pro- 
per attention should be given to his burial, and his friends notified 
of his death. After his death, some circumstances came to our 
knowledge which lead us to suppose that he had thought of attempt- 
ing to escape; but, as far as is known, he made no such attempt. 
Whoever heard the testimony on the trial of Rogers must see 
that there was a marked coincidence in his conduct immediately 
before the homicide and occasionally for many years previous, and 
after he came to the hospital; especially the week previous to the 
fatal leap. These facts and his general appearance while under 
my care, confirm the opinion expressed on the trial, that Rogers 
was insane and irresponsible when he committed the homicide, 
and when he made the fatal rush which terminated his life. 
In great haste, yours, very truly, 
S. B. Woodward. 
Geobge T. Bigelow and George Bemis, Esqrs. 
Boston. INDEX. 
Indictment, 5. 
Arraignment and assignment of counsel, 7, 8. 
Notice of first trial and commencement of second, 8. 
Decision on right of challenge, 9. 
Jury, 9. 
Opening Address of Mr. Parker, 10-24. 
Government Testimony. 
Dr. William J. Walker, 25, 30. 
Moses Jaquith, 25. 
John P. Reed, 27. 
Henry K. Frothingham, 30, 34, 148. 
Warren B. Parker, 34, 148. 
Hiram Fogg, 34. 
Joseph Tully, 39, 166. 
Galen Holmes, Nathaniel Coolidge, Isaac A. Coolidge, 40, 41. 
Mr. Bemis’s Opening for the Defence, 41-108. 
Testimony for the Prisoner. 
David Sargent, 108. 
James M. Gardiner, 113. 
Abraham W. Crowninshield, 117. 
George H. Savary, 121. 
William Burnett, 126. 
James H. Bradley, 127. 
Ebenezer Payne, 130. 
Baylies Braman, 131. 
Lucius Patterson, 135. 
Bernard Lauber rejected. (Argument and decision upon his compe- 
tency,) 136. INDEX. 
Louis Dwight, 137. 
Abner Rogers, Sen., 142. 
(Decision of proof of ancestor’s insanity by reputation,) 144. 
Eliza Pilsbury, Jonathan Randall, 145. 
Herman D. Rogers, 146. 
Henry Rocheford, 148. 
Dr. Luther V. Bell, 149. 
Dr. Samuel B. Woodward, 160. 
Dr. Isaac Ray, 162. 
Government's Evidence, again. 
Joseph Tully, George H. Clarke, 166. 
Daniel Russell, 167. 
Thomas Russell, 168. 
Ebenezer Bent, 171. 
Johnson Bean, 171. 
Evidence for Defence, again. 
Mr. Bemis, as witness, 173. 
Mr. Bigelow’s closing argument, 174-223. 
Mr. Parker’s closing argument, 223-273. 
Charge of Chief Justice Shaw, (Law,) 273-281. 
Further Instructions to the Jury, 281. 
Verdict and Commitment to State Lunatic Hospital. 
Appendix. 
Death of Rogers, 283. 
Letter from Dr. Woodward on his case and death, 284.