You have all witnessed the uncertainty of testimony, when witnesses are called to testify what other witnesses said.  Several respectable counsellors have been summoned, on this occasion, to give testimony of that sort.  They have, every one of them, given different versions.  They all took minutes at the time, and without doubt intend to state the truth.  But still they differ.  Mr. Shillaber’s version is different from every thing that Southwick has stated elsewhere.  But little reliance is to be placed on slight variations in testimony, unless they are manifestly intentional.  I think that Mr. Shillaber must be satisfied that he did not rightly understand Mr. Southwick.  I confess I misunderstood Mr. Shillaber on the former trial, if I now rightly understand him.  I, therefore, did not then recall Mr. Southwick to the stand.  Mr. Southwick, as I read it, understood Mr. Shillaber as asking him about a person coming out of Newbury Street, and whether, for aught he knew, it might not be Richard Crowninshield, Jr.  He answered, that he could not tell.  He did not understand Mr. Shillaber as questioning him as to the person whom he saw sitting on the steps of the rope-walk.  Southwick, on this trial, having heard Mr. Shillaber, has been recalled to the stand, and states that Mr. Shillaber entirely misunderstood him.  This is certainly most probable, because the controlling fact in the case is not controverted; that is, that Southwick did tell his wife, at the very moment he entered his house, that he had seen a person on the rope-walk steps, whom he believed to be Frank Knapp.  Nothing can prove with more certainty than this, that Southwick, at the time, thought the person whom he thus saw to be the prisoner at the bar.

Mr. Bray is an acknowledged accurate and intelligent witness.  He was highly complimented by my brother on the former trial, although he now charges him with varying his testimony.  What could be his motive?  You will be slow in imputing to him any design of this kind.  I deny altogether that there is any contradiction.  There may be differences, but not contradiction.  These arise from the difference in the questions put; the difference between believing and knowing.  On the first trial, he said he did not know the person, and now says the same.  Then, we did not do all we had a right to do.  We did not ask him who he thought it was.  Now, when so asked, he says he believes it was the prisoner at the bar.  If he had then been asked this question, he would have given the same answer.  That he has expressed himself more strongly, I admit; but he has not contradicted himself.  He is more confident now; and that is all.  A man may not assert a thing, and still may have no doubt upon it.  Cannot every man see this distinction to be consistent?  I leave him in that attitude; that only is the difference.  On questions of identity, opinion is evidence.  We may ask the witness, either if he knew who the person seen was, or who he thinks he was.  And he may well answer, as Captain Bray has answered, that he does not know who it was, but that he thinks it was the prisoner.