CHAPTER XVII.

"If it please your honor, I am the poor duke's constable, and

my name is Elbow. I do lean upon justice, sir, and do bring in

here before your good honor two notorious benefactors."

MEASURE FOR MEASURE.

The efforts of the Solitary's friends to ward off the blow were

unavailing, and the perseverance of the constable was crowned with

success. Of course it was impossible for Holden to walk through

the streets of Hillsdale with such a companion without attracting

observation. Long before he reached the office, where he was to have

his trial, a crowd of idle boys was gathered at his heels, attending

in a sort of triumphal procession, and wondering what was to be done

with the prisoner. Basset had need of all his natural dignity, and

more than he could assume besides, to keep the little mob in

tolerable order. It is true the conduct of Holden, who, to the

great astonishment of the constable, followed him like a lamb to the

slaughter, made the task less difficult.

The place to which he was taken was no other than the office of

Ketchum, it not being usual for justices to have offices of their own,

the amount of business not warranting such an expense. On occasions

like the present it was customary for the lawyer who took charge of

the case to supply the court-room, and this, of course, was his

own office, as the most convenient place where law books and other

necessary instruments were at hand. Here, then, Holden was left by the

constable with Ketchum, the officer of the law meanwhile proceeding

to hunt up Squire Miller. During his absence, Ketchum addressed some

remarks to the prisoner, and endeavored to engage him in conversation,

but without success, Holden receiving his advances with coldness,

and evidently averse to establish the relation of even speaking

acquaintanceship. Ketchum finding all efforts vain, at last desisted,

and Holden sat in silence, brooding over his own thoughts.

Upon Basset's return, he was accompanied not only by the justice, but

also by Pownal, who had accidentally heard of the arrest, and by two

or three other persons attracted by curiosity. Pownal immediately

walked up to his friend, and, grasping his hand, expressed his

interest, and tendered his services.

"I know not," said Holden, in reply to his expressions of sympathy,

"why I am to be made a gazing-stock for curious eyes; but the Lord's

will be done."

Pownal requested to see the warrant, and for the first time learned

the nature of the accusation; he then sent a messenger after Mr.

Tippit, and that gentleman, in compliance with the summons, soon made

his appearance. Him Pownal engaged to defend the prisoner. By this

time the little office was filled with an inquisitive crowd, eager to

hear the eloquence of the counsel, and to watch the vibrations of the

scales of justice, among whom Judge Bernard might be seen seated

by the side of the prisoner. Any person entered and departed as he

pleased, the room being, for the time of the trial, converted into a

public place; and while preparations were being made preliminary to

the opening of the court, the spectators amused themselves with making

observations to each other.

"What have they took Holden up for?" said a man to Mr. Davenport, who,

of course, was present.

"I hear it is for profane speaking and reviling," answered Davenport.

"If everybody was to have his desarts," said our friend, Tom Gladding,

squirting a stream of tobacco juice over the floor, "I guess, some

others would be worse off," and he looked sharply at Davenport.

"It is time such things should be punished," said Davenport. "People

begin to act as if there was no law in the country."

"Don't you be quite so hard on a fellow," said Tom. "I recollect

the time before you were convarted, squire, when you swore like a

trooper."

The face of Davenport faded into a dusky grey with anger, and he

looked as if he would have liked to annihilate the audacious Tom, but,

by a violent effort, controlling his passion, he said:

"I trust the Lord has forgiven me the sin."

"I hope he has," said Tom, "and seems to me it would be a good thing

for Squire Miller to follow his example."

"Suppose you tell him so," said Davenport, sarcastically.

"Well, seeing as how you're so pressing," said Gladding "I don't care

if I do. Squire," he cried, addressing the Justice, and drawing the

attention of all to himself, "here's Squire Davenport says, he expects

the Lord's forgive his cussing and swearing, and thinks you'd better

do as well by Father Holden, and let him run."

A general shout of laughter greeted this speech of Gladding's, and

there were exclamations of "Well said, Tom," and "He had him, there,"

and "Who would have thought that of Davenport?"

The unfortunate victim glared, with fury in his eyes, at Tom, who,

interpreting his looks to suit himself, cried--

"He's coming, Squire, to speak for himself."

Davenport here protested, he had said no such thing, and that it was a

shame he should be abused by a scurrilous fellow, in such a manner.

"What's that you say?" said Gladding, stepping up to Davenport; "I'm

no more squirrilous, than you are yourself; though, for that matter,

there ain't a squirrel on a walnut tree, but would be ashamed to be

seen in your company,--squirrilous fellow, eh!"

"Silence!" cried the Justice. "Mister Gladding, I must say, I think

such language very improper; and I hope, if you expect to remain here,

you will stop it."

"Squire," said Gladding, "he begun it; I'll leave it to the company,

if he didn't first call me a squirrel."

"Silence!" reiterated the Justice; "we must have order; and, if you

don't choose to observe order, you must leave the room."

"You hain't opened court yet," persisted the pertinacious Tom. "I

guess we know our rights."

Here Basset came up to Tom, and, taking him by the arm, whispered a

few words into his ear. They seemed to be of a sedative character,

for the latter, contenting himself with an occasional glance of

mischievous fun at his late opponent, abstained from further remark.

By this time, the subpoena for the witnesses had been returned, and

the persons summoned made their appearance. The overt act was so

notorious, that it had not been considered necessary to summon many,

and the few needed were soon hunted up. Hereupon, Mr. Ketchum having

intimated a readiness, on the part of the State, to proceed, Mr.

Tippit, after some conversation with Judge Bernard and Pownal, Holden

refusing to hold any intercourse with him also, entered the plea of

"not guilty," for his client.

The hour of noon had now arrived, and that being the dinner-time of

most present, Justice Miller yielded to the request of Mr. Tippet, and

the pleadings of his own stomach, to adjourn the sitting of the court

till two o'clock in the afternoon, in order, not only to gratify

the demands of appetite, but, also, that the counsel might have an

opportunity to confer with his client and prepare his defence. Ketchum

remonstrated against the delay as unreasonable, but the Justice,

who felt no disposition to hurry himself, and was, at bottom, not an

unamiable man, told him, there would be time enough to finish the case

in the afternoon, provided he and Mr. Tippit did not talk too long.

Meanwhile, upon the promise of Judge Bernard to be responsible for

the safety of the prisoner, Holden was allowed to depart with him,

and Pownal, who had been invited to dinner with the Judge, accompanied

them to his house.

Here they found Faith, in a state of high excitement. "I,"--she said,

seizing the old man's hands, while the tears streamed down her cheeks;

"I am to blame for this persecution. O, Father Holden, if I had not

begged, and almost forced you to go with us that evening, this would

not have happened."

"Dear child!" said Holden, "afflict not thyself. Thou and I are but

as flying dust on the eternal wheels of destiny. Fear not, nor let

thy heart be troubled. Even yet, the Lord will make bare his arm and I

shall escape, even as a bird from the snare of the fowler."

But Faith partook not of the enthusiast's confidence. To her alarmed

imagination, the deliverance of Holden seemed as improbable as that

of Daniel from the den of lions, and the impending doom almost

as dreadful as that destined for the prophet. She knew what the

consequences would be were Holden found guilty; for, soon after the

reading of the warrant by Pownal, its contents had been communicated

to her, and she had been informed respecting the punishment. To

her delicate and sensitive mind, the charge itself--that of profane

speaking and reviling, was inexpressibly revolting. She knew that the

condition of mind such language implies, was entirely wanting, and

that it was in the performance of what he considered a duty, the old

man had spoken. Father Holden capable of profane speaking! He, whose

heart was the seat of all noble emotions; he, who had renounced the

world, and trampled its temptations and vanities under foot; he,

who living in the world, was not of the world! That such an one, so

harmless, so guileless, so innocent, should be paraded through the

streets like a wild beast which it was unsafe to have at large, that

he should be exposed to the prying looks of coarse and unfeeling men,

and compelled to hear their vile ribaldry, and, finally, compelled

to an ignominious punishment, among the vicious, in a workhouse!

The disgrace was more than she could bear. It seemed her heart would

break. Overcome by her emotions, she left the room, followed by Anne,

who partook of her grief and indignation.

All participated in the feelings of the young ladies, and, as might

be supposed, the young men most. To Pownal, a wish of Anne's was a

command; nor was there a danger, scarcely, he would have refused to

encounter to gratify her. He had never, indeed, breathed a word of

love, but he had flattered himself of late that she understood his

feelings, and that the knowledge gave her no displeasure; and, in

spite of the disparity in their conditions, hope nestled at the

bottom of his heart. Besides, Faith was with him a favorite, and it

distressed him to witness her excitement.

Nor could William Bernard behold unmoved the tears of Faith, or the

agitation of his sister. Never, indeed, before had the divine eyes of

Faith Armstrong so affected him as now, when suffused with tears; nor

had her beauty ever shone so resplendent. Upon the withdrawal of the

girls, he put his arm into that of Pownal, and drawing him into a

recess, the young men took counsel together respecting what should be

done.

At the appointed hour, all parties were again present in the little

office of the lawyer, and the examination commenced. It is unnecessary

to recapitulate in full the testimony. In spite of the ingenuity

of Mr. Tippit, who closely cross-examined the witnesses for the

prosecution, and thereby only made them rather strengthen than weaken

the force of their testimony, the facts were fully proved. Indeed, the

whole occurrence was too recent and public to make the proof a task

of any difficulty. The only differences in the statements of the

witnesses were, that some thought Holden was standing at the side of

the reading-desk, when he addressed Davenport, while others were as

sure he was in front, a circumstance considered by Ketchum and

the Court as of no consequence, while Tippit regarded it as of the

greatest importance, as a test of the accuracy of the memory, if not

of the veracity of the witnesses; and, again, what came out in the

persevering cross-examination by Tippit, viz.: that in the opinion of

some witnesses, Holden, instead of saying "soul-damning and abominable

lies," said "damned, abominable lies". The eyes of Ketchum fairly

danced when the efforts of his opponent succeeded in eliciting from

the badgered and provoked witness this most _mal-à-propos_ testimony

which his own ingenuity had been unable to draw forth, and he took

care, in the rest of the examination, to get the same statement if

possible from the remainder of the witnesses. In this he was partially

successful, each one intending most sincerely to tell the truth,

and yet artfully led on by the lawyer, often falsely coloring and

distorting the facts. On the conclusion of the testimony on the part

of the State, Mr. Tippit produced witnesses to prove the words spoken,

who, after all, did not alter the complexion of things, and also the

good character of the prisoner, but this latter proposal was stoutly

opposed by Ketchum, as irrelevant to the issue.

"What have we to do," said he, "with the character of the prisoner?

His character is not at issue. That may be as good as the Court's,

for instance (and I desire no higher), and yet the offence charged

may have been committed. If brother Tippit is allowed to run into all

these side issues, we shall never be done with the examination, and

therefore I object to the testimony."

Tippit, in reply, expressed great surprise at the conduct of his

brother, Ketchum; "but," said he, "I do not wonder at the anxiety

of the gentleman to keep out testimony of so vast importance for my

client. Here is a discrepancy. Some witnesses state the language

said to have been used by my client in one way, some in another. Now,

although a man of good character might use the words 'soul damning and

abominable,' which we are constantly hearing in sermons and prayers,

and if they are proper there, one might suppose them proper in common

discourse, he would be less likely to use the other phrase; though, if

he did, I hope I shall be able to convince the court there's no great

harm in that."

Here Ketchum's face expressed unutterable astonishment, and the

Justice, as if scandalized at the proposition, interrupted the

counsel, and told him he hoped he did not mean to justify profane

language.

"Far from it, please your honor," answered Tippit, "but I say we have

been guilty of no profanity which, at the proper time, I expect to

satisfy the court of. We offer the testimony now for two purposes:

first, to assist the judgment of the court in coming to a conclusion,

whether the words were spoken or not, because if we prove the

prisoner's good character, it is less likely they were uttered by him;

and secondly, if your honor should be of opinion that the words were

used, in mitigation of punishment, if, indeed, the court should be

disposed to take notice at all of the trifle of which the prisoner

stands accused."

Ketchum reiterated his objections, denying that the testimony was

admissible for either purpose. He did not think, he said, that his

brother Tippit was able to assist the judgment of the court a great

deal; as for judgment, the article was so scarce with a certain

gentleman, he advised him to keep the modicum he had for his own

use. So far as mitigation of punishment was concerned, he thought the

greater the respectability of the offender, the greater should be the

punishment, both because his education and opportunities should have

taught him better, and by way of example to others, in like case to

offend. The doctrine of the gentleman, he added, might do well enough

where kings and aristocrats ground the people to powder, but he hoped

never to see the day, when, in our own free country, a man might do

what he pleased because he was respectable.

This sentiment, notwithstanding the feelings of almost all present

were in favor of Holden, was so decidedly patriotic, that it met

the most favorable reception, and there was a general whispering and

rustling among the audience. After the sensation had subsided, Justice

Miller, with some hesitation, decided to receive the testimony for the

present. "It is different," he said, "from allowing evidence to go to

a jury. I am both court and jury, and will think it over, and reject

it, if I think it should be." With this decision the counsel were

obliged to acquiesce, and Tippit proceeded with his testimony.

It was easier to prove the good character of Holden than the exact

occurrence at the meeting. Judge Bernard, Mr. Armstrong, who came into

the court in the afternoon, Pownal, and many others, testified to his

irreproachable reputation, and were certain that his conduct proceeded

from no evil intent.

After the testimony had all been taken, followed the speeches of the

counsel. Ketchum, who, as prosecutor, was entitled to the opening and

closing arguments, rose and stated that, as the days were short, and

it was growing late, he would waive his right of opening, and reserve

what he had to say to the time when his brother Tippit had concluded.

To this arrangement Tippit strenuously objected, insisting that the

State had made out so poor a case, that he hardly knew what to reply

to, and that in all fairness the counsel for the State ought to

enlighten him. The court, however, decided, that although it was

a strange thing for a lawyer to desire to be excused from making a

speech, yet it was a course he felt much obliged to Mr. Ketchum

for adopting, and hoped that he would not revenge himself for the

abstinence by putting two speeches into one, at the conclusion.

Smiles and applauding whispers among the audience rewarded the Justice

for this brilliant display of wit.

Hereupon Mr. Tippit rose and addressed the court. He begun by hinting

at the embarrassment he felt in not having the advantage, to use his

own language, of what his brother Ketchum intended to say. For his own

part, he had carefully considered the law and evidence, and could not

find the shadow of a pretext for detaining the prisoner. He then went

on to speak of the prisoner himself, his age, his harmless life, and

the excellent character he sustained. All this, he argued, went to

show the improbability of his having uttered the language considered

most objectionable. He contended that although he would most

cheerfully admit that the prisoner had said something in the

conference-room, it was impossible to determine accurately what

that something was; that if in this state of things the court not be

satisfied what the words were exactly, it was as if no words at all

had been uttered, and there were none to be passed upon. But what were

the words? Here the learned counsel minutely examined the evidence,

and arrived at the conclusion, that it was impossible to ascertain

them. Hence, he said, the _corpus delicti_ is wanting. But suppose

the words were as testified by some, though they are contradicted by

others, "damned abominable," what then? Was that reviling or

profane speaking? The words were two. Now, no one would pretend that

"abominable" was profane language. "The idea is abominable," said

Tippit, "and I hope brother Ketchum won't take me up for saying that.

What does the other word mean?" Hereupon the counsel referred to a

dictionary, to which also we refer our readers. "There you see," said

he, "there is no harm in it. At most, the word can in its present

application, be considered only as an intensitive, or the like.

The fact is, may it please the court, it is but a strong form of

expression, and means no more nor less than _very_, and I should be

willing to leave it to the good sense of those who hear me, as to a

jury, to say if my construction is not correct."

Here Tom Gladding nodded his head at Tippit.

"Mr. Gladding," continued Tippit, "nods his head, and I honor his

judgment, and venture to say there is not a man here better qualified

to speak on the subject."

Here there was a general laugh at Tom's expense, in which the court

itself joined. Tom, appearing to regard the joke very little, and

only saying, "The squire's got it right by chance this time, I guess."

Presently, the court commanded silence, and Mr. Tippit proceeded.

"I flatter myself," he added, "that I have satisfied your honor there

is no profane language in the case; and that ought to be sufficient

for my purpose, even though the court should be of opinion that the

prisoner was guilty of reviling; because the words of the statute are

in the conjunctive, providing punishment only where profane speaking

and reviling are united, being levelled, not at one alone, but at

both as one act. It should also be borne in mind, that the statute is

penal, and for that reason must be construed, strictly, in favor of

liberty. But I will now proceed to inquire whether there has been any

reviling in the sense of the statute. Who was intended to be protected

against injurious language? Reasonable beings only, certainly.

Assuredly not the delicate feelings of horses, or cows, or pigs, and

if so, much less those of an inanimate object, like a book. Now,

it will be recollected that the language uttered characterized the

contents of a book, not Mr. Davenport. The words were consistent with

the supposition that the prisoner cherished the highest respect for

him, whatever his opinion might be of the sermon. It was then absurd

to pursue a man criminally for criticising a book, and requesting

another not to read it, which was all that had been done."

Here Ketchum inquired how his brother Tippit would get over the words,

"man of sin," which it was testified had been applied by the prisoner

to Davenport.

Mr. Tippit treated the inquiry with great contempt. "Does the

gentleman," he asked, in turn, "claim for Mr. Davenport a superhuman

degree of piety? Would he have us understand that Mr. Davenport is

not a sinful man, and is the expression made use of by Mr. Holden more

than tantamount to that? I do not think the words worthy of notice,"

he said, "nor am I disposed to waste time on them." Mr. Tippit

concluded by saying, that if a man, in the honest expression of his

opinions about a book, was to be dealt with criminally, free speech,

free action, the noble inheritance of our ancestors, were gone, and

the liberties of the country no more. Collecting himself for a last

effort, he represented the Goddess of Liberty, like Niobe, all

tears, weeping over the fate of her children, should the iniquity,

contemplated by Ketchum, be consummated.

The impression made by the lawyer's speech was favorable, as was

evident from the looks of the audience, and the approving hum that

filled the room, and prepossessed as they were in favor of Holden,

they would undoubtedly have acquitted him, but, alas! they were

not the tribunal to decide his fate. We have already dilated on the

proceedings of the little court of _pied poudre_, beyond our original

intention, and for that reason shall endeavor, without designing,

"with malice prepense," to slight the eloquence of Ketchum, to

compress his remarks into as small a compass as possible. He has since

risen to the dignity of a County Court Judge, and, therefore, needs no

celebrity, which a work so unpretending as the present, can confer.

Mr. Ketchum then began by saying, that to be sure his experience in

courts was not very great, but he had some, and, so far as it went, he

never knew a case plainer than the one on trial. The gentleman (bowing

to Tippit), with all his ingenuity, and he was not going to deny him

his due, which was greater than his knowledge of the law, had been

unable to affect his own mind, or, as he believed, the mind of his

honor, or of any one present. He felt, therefore, that the task before

him, though an unpleasant one, was lightened by the inability of his

brother Tippit to make out even a plausible defence. Peeling this,

he should, if he consulted only his own inclinations, be disposed to

leave the case where it was, without comment, but he supposed it was

expected he should say something, and in the discharge of his duty,

he would comply with the expectation. As for the character of the

prisoner, he had nothing to say about it. He would neither admit that

it was good, nor claim that it was bad; whatever it might be, it had

nothing to do with the case. The question was, what was done at the

meeting? All the witnesses agreed that the prisoner interrupted the

proceedings. True, they disagreed in respect to the exact words, but

take the testimony of any, and sufficient was made out to support the

prosecution. Here he dwelt upon a criticism of the words, coming to

conclusions precisely the opposite of Tippit's, and contending they

were both profane and reviling. "It was preposterous," he claimed, "to

say that Holden meant merely to criticise the book. The language was

not addressed to the book, but to Davenport: the book was not called,

'man of sin,' but Davenport. The words, 'man of sin' had a peculiar

meaning. They were designed in the Scriptures to express condemnation,

and horror, and wickedness. They were not synonymous with 'sinful

man,' though even these words might be considered words of reviling,

had they been used in the same circumstances. The contempt affected

by his brother Tippit was so much powder and shot thrown away. Nobody

believed he really felt it. It was like the grimaces of a culprit,

trying to hide his apprehensions by forced smiles." He concluded by

apologizing for not being a poet, like his brother Tippit, nor as

familiar with goddesses. He knew that his friend was a gallant young

man, and fond of the ladies, and he would confess to the weakness

himself, but as for goddesses, they were a touch above him, &c.

The court had listened with patience to both testimony and speech, and

was now to pass sentence, acting up to the advice of a shrewd English

lawyer, to one who without much legal learning had been appointed to

a judgeship in a colony, never to give his reasons when he pronounced

judgment, for although the judgment had an equal chance to be right or

wrong, the reasons were almost certain to be incorrect, Justice Miller

contented himself with finding the prisoner guilty, and sentenced him

to a week's confinement in the town workhouse.

It was not without some surprise that the friends of Holden heard the

decision. Although contemplating its possibility, they had indulged a

hope that the Justice would be unwilling to subject one so harmless,

and whom they considered innocent of all intention to violate the law,

to any punishment; but with that reverence for law which characterizes

New England, and without which there can be no security for free

institutions, they submitted, although not without some murmurs. It

was in vain, they knew, to ask for any mitigation; Justice Miller

having once pronounced sentence, being as inexorable as the Supreme

Court. The room was soon nearly emptied of the spectators, none

remaining except the particular friends of the prisoner. Nothing

remained but to carry the sentence into execution. Holden's friends

also at last took a sorrowful leave, and the mittimus being made

out, it was handed to Basset, to remove the prisoner to the place of

destination.

For the sake of greater security, Basset now produced a pair of

handcuffs, which he put on the condemned man's hands, who offered no

objection, but calmly submitted to his fate.

The lost hunter: A tale of early times · 第 17 / 43 章