The court-room of Judge Walter P. Wright was filled with an interested
audience of the greater and unpunished criminals of New York. The
application of Barker for a _habeas corpus_, on the ground that he had
committed no crime, had attracted wide attention. It was known that the
facts were not disputed, and the proceeding was a matter of wonder.
Some days before, the case had been submitted to the learned judge. The
attorneys for the People had not been anxious enough to be interested,
and looked upon the application as a farce. The young man who appeared
for Barker announced that he represented one Randolph Mason, a
counsellor, and was present only for the purpose of asking that Barker
be discharged, and for the further purpose of filing the brief of Mason
in support of the application. He made no argument whatever, and had
simply handed up the brief, which the attorneys for the People had not
thought it worth their while to examine.
Barker sat in the dock, grim and confident. The attorneys for the
commonwealth were listless. The audience was silent and attentive. It
was a vital matter to them. If Barker had committed no crime, what a
rich, untramped field was open. The Judge laid his hand upon the books
piled up beside him and looked down at the bar.
"This proceeding," he began, "is upon the application of one Lemuel
Barker for a writ of _habeas corpus_, asking that he be discharged from
custody, upon the ground that he has committed no crime punishable at
common law or under the statutes of New York. An agreed state of facts
has been submitted, upon which he stands charged by the commonwealth
with having obtained five thousand dollars from one Cornelius Rockham
by false pretences. The facts are, briefly, that on the 17th day of
December Barker called at the residence of Rockham and said that he
desired to make a proposition looking to the recovery of the lost child
of said Rockham, but he desired to make it in the presence of witnesses,
and would return at ten o'clock that night. Pursuant to his appointment,
Barker again presented himself at the residence of said Rockham, and,
in the presence of witnesses, declared, in substance, that at that time
(then ten o'clock) he knew nothing of the said child, could not produce
it, and could give no information in regard to it, but that at eleven
o'clock he would know where the child was and would produce it; and
that, if the said Rockham would then and there pay him five thousand
dollars, he would at eleven o'clock take them to the lost child. The
money was paid and the transaction completed.
"At eleven o'clock, Barker took the men to a certain corner in the upper
part of this city, and it there developed that the entire matter was a
scheme on his part for the purpose of obtaining the said sum of money,
which he had in some manner disposed of; and that he in fact knew
nothing of the child and never intended to produce it.
"The attorneys for the People considered it idle to discuss what
they believed to be such a plain case of obtaining money under false
pretences; and I confess that upon first hearing I was inclined to
believe the proceeding a useless imposition upon the judiciary. I have
had occasion to change my opinion."
The attorneys present looked at each other with wonder and drew their
chairs closer to the table. The audience moved anxiously.
"The prisoner," continued the Judge, "has filed in his behalf the
remarkable brief of one Randolph Mason, a counsellor. This I have
read, first, with curiosity, then interest, then wonder, and, finally,
conviction. In it the crime sought to be charged is traced from the
days of the West Saxon Wights up to the present, beginning with the most
ancient cases and ending with the later decisions of our own Court of
Appeals. I have gone over these cases with great care, and find that
the vital element of this crime is, and has ever been, the false and
fraudulent representation or statement as to an _existing_ or _past
fact_. Hence, no representation, however false, in regard to a _future_
transaction can be a crime. Nor can a false statement, _promissory_ in
its nature, be the subject of a criminal charge.
"To constitute this crime there must always be a false representation
or statement as to a _fact_, and that _fact_ must be a _past_ or an
_existing fact_. These are plain statements of ancient and well settled
law, and laid here in this brief, almost in the exact language of our
courts.
"In this case the vital element of crime is wanting. The evidence fails
utterly to show false representation as to any _existing fact_. The
prisoner, Barker, at the time of the transaction, positively disclaimed
any knowledge of the child, or any ability to produce it. What he did
represent was that he would know, and that he would perform certain
things, in the future. The question of remoteness is irrelevant. It is
immaterial whether the future time be removed minutes or years.
"The false representation complained of was wholly in regard to a future
transaction, and essentially promissory in its nature, and such a wrong
is not, and never has been, held to be the foundation of a criminal
charge."
"But, if your Honor please," said the senior counsel for the People,
rising, "is it not clearly evident that the prisoner, Barker, began with
a design to defraud; that that design was present and obtained at the
time of this transaction; that a representation was made to Rockham
for the purpose of convincing him that there then existed a _bona
fide_ intention to produce his child; that money was obtained by false
statements in regard to this intention then existing, when in fact such
intention did not exist and never existed, and statements made to induce
Rockham to believe that it did exist were all utterly false, fraudulent,
and delusive? Surely this is a crime."
The attorney sat down with the air of one who had propounded an
unanswerable proposition. The Judge adjusted his eyeglasses and began to
turn the pages of a report. "I read," he said, "from the syllabus of the
case of The People of New York vs. John H. Blanchard. 'An indictment
for false pretences may not be founded upon an assertion of an existing
intention, although it did not in fact exist. There must be a false
representation as to an existing fact.'
"Your statement, sir, in regard to intention, in this case is true, but
it is no element of crime."
"But, sir," interposed the counsel for the People, now fully awake to
the fact that Barker was slipping from his grasp, "I ask to hold this
man for conspiracy and as a violator of the Statute of Cheats."
"Sir," said the Judge, with some show of impatience, "I call your
attention to Scott's case and the leading case of Ranney. In the
former, the learned Court announces that if the false and fraudulent
representations are not criminal there can be no conspiracy; and, in the
latter, the Court says plainly that false pretences in former statutes,
and gross fraud or cheat in the more recent acts, mean essentially the
same thing.
"You must further well know that this man could not be indicted at
common law for cheat, because no false token was used, and because in
respect to the instrumentality by which it was accomplished it had no
special reference to the public interest.
"This case is most remarkable in that it bears all the marks of a gross
and detestable fraud, and in morals is a vicious and grievous wrong, but
under our law it is no crime and the offender cannot be punished."
"I understand your Honor to hold," said the baffled attorney, jumping to
his feet, "that this man is guilty of no crime; that the dastardly act
which he confesses to have done constitutes no crime, and that he is to
go out of this court-room freed from every description of liability or
responsibility to any criminal tribunal; that the law is so defective
and its arm so short that it cannot pluck forth the offender and punish
him when by every instinct of morality he is a criminal. If this be
true, what a limitless field is open to the knave, and what a snug
harbor for him is the great commonwealth of New York!"
"I can pardon your abruptness," said the Judge, looking down upon the
angry and excited counsellor, "for the reason that your words are almost
exactly the lament of presiding Justice Mullin in the case of Scott.
But, sir, this is not a matter of sentiment; it is not a matter of
morality; it is not even a matter of right. It is purely and simply a
matter of law, and there is no law."
The Judge unconsciously arose and stood upright beside the bench. The
audience of criminals bent forward in their seats.
"I feel," he continued, "for the first time the utter inability of the
law to cope with the gigantic cunning of Evil. I appreciate the utter
villainy that pervaded this entire transaction. I am convinced that it
was planned with painstaking care by some master mind moved by Satanic
impulse. I now know that there is abroad in this city a malicious
intelligence of almost infinite genius, against which the machinery
of the law is inoperative. Against every sentiment of common right, of
common justice, I am compelled to decide that Lemuel Barker is guilty of
no crime and stands acquit."
It was high noon. The audience of criminals passed out from the temple
of so-called Justice, and with them went Lemuel Barker, unwhipped and
brazen; now with ample means by which to wrest his fellows in villainy
from the righteous wrath of the commonwealth. They were all enemies of
this same commonwealth, bitter, never wearying enemies, and to-day they
had learned much. How short-armed the Law was! Wondrous marvel that they
had not known it sooner! To be sure they must plan so cunningly that
only the Judge should pass upon them. He was a mere legal machine.
He was only the hand applying the rigid rule of the law. The danger was
with the jury; there lay the peril to be avoided. The jury! how they
hated it and feared it! and of right, for none knew better than they
that whenever, and where-ever, and however men stop to probe for it,
they always find, far down in the human heart, a great love of common
right and fair dealing that is as deep-seated and abiding as the very
springs of life.