CHAPTER XVII.

“What then avail impeachments, or the law’s

Severest condemnation while the queen

May snatch him from the uplifted hand of justice?”

_Earl of Essex._

Perhaps the most certain proof that any people can give of a high moral

condition, is in the administration of justice. Absolute infallibility

is unattainable to men; but there are wide chasms in right and wrong,

between the legal justice of one state of society and that of another.

As the descendants of Englishmen, we in this country are apt to ascribe

a higher tone of purity to the courts of the mother country, than to

those of any other European nation. In this we may be right, without

inferring the necessity of believing that even the ermine of England is

spotless; for it can never be forgotten that Bacon and Jeffries once

filled her highest judicial seats, to say nothing of many others, whose

abuses of their trusts have doubtless been lost in their comparative

obscurity. Passing from the parent to its offspring, the condition of

American justice, so far as it is dependent on the bench, is a profound

moral anomaly. It would seem that every known expedient of man has been

resorted to, to render it corrupt, feeble, and ignorant; yet he would be

a hardy, not to say an audacious commentator, who should presume to

affirm that it is not entitled to stand in the very foremost ranks of

human integrity.

Ill paid, without retiring pensions, with nothing to expect in the way

of family and hereditary honours and dignities; with little, in short,

either in possession or in prospect, to give any particular inducement

to be honest, it is certain that, as a whole, the judges of this great

republic may lay claim to be classed among the most upright of which

history furnishes any account. Unhappily, popular caprice, and popular

ignorance, have been brought to bear on the selection of the

magistrates, of late; and it is easy to predict the result, which, like

that on the militia, is soon to pull down even this all-important

machinery of society to the level of the common mind.

Not only have the obvious and well-earned inducements to keep men

honest—competence, honours, and security in office—been recklessly

thrown away by the open hand of popular delusion, but all the minor

expedients by which those who cannot think might be made to feel, have

been laid aside, leaving the machinery of justice as naked as the hand.

Although the colonial system was never elaborated in these last

particulars, there were some of its useful and respectable remains, down

as late as the commencement of the present century. The sheriff appeared

with his sword, the judge was escorted to and from the court-house to

his private dwelling with some show of attention and respect, leaving a

salutary impression of authority on the ordinary observer. All this has

disappeared. The judge slips into the county town almost unknown; lives

at an inn amid a crowd of lawyers, witnesses, suitors, jurors and

horse-shedders, as Timms calls them; finds his way to the bench as best

he may; and seems to think that the more work he can do in the shortest

time is the one great purpose of his appointment. Nevertheless, these

men, _as yet_, are surprisingly incorrupt and intelligent. How long it

will remain so, no one can predict; if it be for a human life, however,

the working of the problem will demonstrate the fallibility of every

appreciation of human motives. One bad consequence of the depreciation

of the office of a magistrate, however, has long been apparent, in the

lessening of the influence of the judge on the juries; the power that

alone renders the latter institution even tolerable. This is putting an

irresponsible, usually an ignorant, and often a corrupt arbiter, in the

judgment-seat, in lieu of the man of high qualities for which it was

alone intended.

The circuit and oyer and terminer for Duke’s presented nothing novel in

its bench, its bar, its jurors, and we might add its witnesses. The

first was a cool-headed, dispassionate man, with a very respectable

amount of legal learning and experience, and a perfectly fair character.

No one suspected him of acting wrong from evil motives; and when he did

err, it was ordinarily from the pressure of business; though,

occasionally, he was mistaken, because the books could not foresee every

possible phase of a case. The bar was composed of plain, hard-working

men, materially above the level of Timms, except in connection with

mother-wit; better educated, better mannered, and, as a whole, of

materially higher origin; though, as a body, neither profoundly learned

nor of very refined deportment. Nevertheless, these persons had a very

fair portion of all the better qualities of the northern professional

men. They were shrewd, quick in the application of their acquired

knowledge, ready in their natural resources, and had that general

aptitude for affairs that probably is the fruit of a practice that

includes all the different branches of the profession. Here and there

was a usurer and extortioner among them; a fellow who disgraced his

calling by running up unnecessary bills of cost, by evading the penal

statutes passed to prevent abuses of this nature, and by cunning

attempts to obtain more for the use of his money than the law

sanctioned. But such was not the general character of the Duke’s county

bar, which was rather to be censured for winking at irregular

proceedings out of doors, for brow-beating witnesses, and for regarding

the end so intensely as not always to be particular in reference to the

means, than for such gross and positively illegal and oppressive

measures as those just mentioned. As for the jurors, they were just what

that ancient institution might be supposed to be, in a country where so

many of the body of the people are liable to be summoned. An unusually

large proportion of these men, when all the circumstances are

considered, were perhaps as fit to be thus employed as could be obtained

from the body of the community of any country on earth; but a very

serious number were altogether unsuited to perform the delicate duties

of their station. Fortunately, the ignorant are very apt to be

influenced by the more intelligent, in cases of this nature; and by this

exercise of a very natural power, less injustice is committed than might

otherwise occur. Here, however, is the opening for the “horse-shedding”

and “pillowing,” of which Timms has spoken, and of which so much use is

made around every country court-house in the state. This is the crying

evil of the times; and, taken in connection with the enormous abuse

which is rendering a competition in news a regular, money-getting

occupation, one that threatens to set at defiance all laws, principles

and facts.

A word remains to be said of the witnesses. Perhaps the rarest thing

connected with the administration of justice all over the world, is an

intelligent, perfectly impartial, clear-headed, discriminating witness;

one who distinctly knows all he says, fully appreciates the effect of

his words on the jury, and who has the disposition to submit what he

knows solely to the law and the evidence. Men of experience are of

opinion that an oath usually extracts the truth. We think so too; but it

is truth as the witness understands it; facts as he has seen them; and

opinions that, unconsciously to himself, have been warped by reports,

sneers and malice. In a country of popular sway like this, there is not

one man in a thousand, probably, who has sufficient independence of

mind, or sufficient moral courage, to fancy he has seen even a fact, if

it be of importance, differently from what the body of the community has

seen it; and nothing is more common than to find witnesses colouring

their testimony, lessening its force by feeble statements, or altogether

abandoning the truth, under this pressure from without, in cases of a

nature and magnitude to awake a strong popular feeling. It is by no

means uncommon, indeed, to persuade one class of men, by means of this

influence, that they did not see that which actually occurred before

their eyes, or that they did see that which never had an existence.

Under no circumstances do men congregate with less meritorious motives

than in meeting in and around a court of justice. The object is victory,

and the means of obtaining it will not always bear the light. The

approaching Circuit and Oyer and Terminer of Duke’s was no exception to

the rule; a crowd of evil passions, of sinister practices, and of

plausible pretences, being arrayed against justice and the law, in

two-thirds of the causes on the calendar. Then it was that Timms and

saucy Williams, or Dick Williams, as he was familiarly termed by his

associates, came out in their strength, playing off against each other

the out-door practices of the profession. The first indication that the

former now got of the very serious character of the struggle that was

about to take place between them, was in the extraordinary civility of

saucy Williams when they met in the bar-room of the inn they each

frequented, and which had long been the arena of their antagonistical

wit and practices.

“I never saw you look better, Timms,” said Williams, in the most cordial

manner imaginable; “on the whole, I do not remember to have ever seen

you looking so well. You grow younger instead of older, every day of

your life. By the way, do you intend to move on Butterfield against Town

this circuit?”

“I should be glad to do it, if you are ready. Cross-notices have been

given, you know.”

Williams knew this very well; and he also knew that it had been done to

entitle the respective parties to costs, in the event of anything

occurring to give either side an advantage; the cause being one of those

nuts out of which practitioners are very apt to extract the whole of the

kernel before they are done with it.

“Yes, I am aware of that, and I believe we are quite ready. I see that

Mr. Town is here, and I observe several of his witnesses; but I have so

much business, I have no wish to try a long slander cause; words spoken

in heat, and never thought of again, but to make a profit of them.”

“You are employed against us in the murder case, I hear?”

“I rather think the friends of the deceased so regard it; but I have

scarcely had time to look at the testimony before the coroner”—This was

a deliberate mystification, and Timms perfectly understood it as such,

well knowing that the other had given the out-door work of the case

nearly all of his time for the last fortnight—“and I don’t like to move

in one of these big matters without knowing what I am about. Your senior

counsel has not yet arrived from town, I believe?”

“He cannot be here until Wednesday, having to argue a great insurance

case before the Superior Court to-day and to-morrow.”

This conversation occurred after the grand jury had been charged, the

petit jurors sworn, and the judge had heard several motions for

correcting the calendar, laying causes over, &c. &c. Two hours later,

the District Attorney being absent in his room, engaged with the grand

jury, Williams arose, and addressed the court, which had just called the

first civil cause on the calendar.

“May it please the court,” he said, coolly, but with the grave aspect of

a man who felt he was dealing with a very serious matter—“there is a

capital indictment depending, a case of arson and murder, which it is

the intention of the State to call on at once.”

The judge looked still more grave than the counsel, and it was easy to

see that he deeply regretted it should fall to his lot to try such an

issue. He leaned forward, with an elbow on the very primitive sort of

desk with which he was furnished by the public, indented it with the

point of his knife, and appeared to be passing in review such of the

circumstances of this important case as he had become acquainted with,

judicially. We say ‘judicially;’ for it is not an easy thing for either

judge, counsel, or jurors, in the state of society that now exists, to

keep distinctly in their minds that which has been obtained under legal

evidence, from that which floats about the community on the thousand

tongues of rumour—fact from fiction. Nevertheless, the respectable

magistrate whose misfortune it was to preside on this very serious

occasion, was a man to perform all his duty to the point where public

opinion or popular clamour is encountered. The last is a bug-bear that

few have moral courage to face; and the evil consequences are visible,

hourly, daily, almost incessantly, in most of the interests of life.

This popular feeling is the great moving lever of the republic; the

wronged being placed beneath the fulcrum, while the outer arm of the

engine is loaded with numbers. Thus it is that we see the oldest

families among us quietly robbed of their estates, after generations of

possession; the honest man proscribed; the knave and demagogue deified;

mediocrity advanced to high places; and talents and capacity held in

abeyance, if not actually trampled under foot. Let the truth be said:

these are evils to which each year gives additional force, until the

tyranny of the majority has taken a form and combination which,

unchecked, must speedily place every personal right at the mercy of

plausible, but wrong-doing, popular combinations.

“Has the prisoner been arraigned?” asked the judge. “I remember nothing

of the sort.”

“No, your honour,” answered Timms, now rising for the first time in the

discussion, and looking about him as if to scan the crowd for witnesses.

“The prosecution does not yet know the plea we shall put in.”

“You are retained for the prisoner, Mr. Timms?”

“Yes, sir; I appear in her behalf. But Mr. Dunscomb is also retained,

and will be engaged in the New York Superior Court until Wednesday, in

an insurance case of great magnitude.”

“No insurance case can be of the magnitude of a trial for life,”

returned Williams. “The justice of the State must be vindicated, and the

person of the citizen protected.”

This sounded well, and it caused many a head in the crowd, which

contained both witnesses and jurors, to nod with approbation. It is

true, that every thoughtful and observant man must have had many

occasions to observe how fallacious such a declaration is, in truth; but

it sounded well, and the ears of the multitude are always open to

flattery.

“We have no wish to interfere with the justice of the State, or with the

protection of the citizen,” answered Timms, looking round to note the

effect of his words—“our object is to defend the innocent; and the great

and powerful community of New York will find more pleasure in seeing an

accused acquitted than in seeing fifty criminals condemned.”

This sentiment sounded quite as well as that of Williams’s, and heads

were again nodded in approbation. It told particularly well in a

paragraph of a newspaper that Timms had engaged to publish what he

considered his best remarks.

“It seems to me, gentlemen,” interposed the judge, who understood the

meaning of these _ad captandum_ remarks perfectly well, “that your

conversation is premature at least, if not altogether improper. Nothing

of this nature should be said until the prisoner has been arraigned.”

“I submit, your honour, and acknowledge the justice of the reproof,”

answered Williams. “I now move the court, on behalf of the District

Attorney, that Mary Monson, who stands indicted for murder and arson,

_be_ arraigned, and her pleas entered——”

“I could wish this step might be delayed until I can hear from the

leading counsel for the defence,” objected Timms, “which must now occur

in the course of a very few hours.”

“I perceive that the prisoner is a female,” said the judge, in a tone of

regret.

“Yes, your honour; she is, and young and handsome, they tell me,”

answered Williams; “for I have never been able to get a sight of her.

She is too much of a great lady to be seen at a grate, by all I can

learn of her and her proceedings. Plays on the harp, sir; has a French

_valet de chambre_, or something of that sort——”

“This is all wrong, Mr. Williams, and must be checked,” again interposed

the judge, though very mildly; for, while his experience taught him that

the object of such remarks was to create prejudice, and his conscience

prompted him to put an end to a proceeding so unrighteous, he stood in

so much awe of this particular counsel, who had half a dozen presses at

his command, that it required a strong inducement to bring him out as he

ought to be, in opposition to any of his more decided movements. As for

the community, with the best intentions as a whole, it stood passive

under this gross wrong. What ‘is everybody’s business’ is literally

‘nobody’s business,’ when the public virtue is the great moving power;

the upright preferring their ease to everything else, and the

ill-disposed manifesting the ceaseless activity of the wicked. All the

ancient barriers to this species of injustice, which have been erected

by the gathered wisdom of our fathers and the experience of ages, have

been thrown down by the illusions of a seeming liberty, and the whole

machinery of justice is left very much at the mercy of an outside public

opinion, which, in itself, is wielded by a few of the worst men in the

country. These are sober truths, as a close examination will show to any

one who may choose to enter into the investigation of the ungrateful

subject. It is not what is _said_, we very well know; but it is what is

_done_.

Williams received the mild rebuke of the judge like one who felt his

position; paying very little respect to its spirit or its letter. He

knew his own power, and understood perfectly well that this particular

magistrate was soon to run for a new term of office, and might be dealt

with more freely on that account.

“I know it is very wrong, your honour—very wrong”—rejoined the wily

counsel to what had been said—“so wrong, that I regard it as an insult

to the State. When a person is capitally indicted, man or woman, it is

his or her bounden duty to put all overboard, that there may be no

secrets. The harp was once a sacred instrument, and it is highly

improper to introduce it into our gaols and criminals’ cells——”

“There is no criminal as yet—no crime can be established without proof,

and the verdict of twelve good men and true,” interrupted Timms—“I

object, therefore, to the learned counsel’s remarks, and——”

“Gentlemen, gentlemen,” put in the judge, a little more pointedly than

in his former rebuke—“this is all wrong, I repeat.”

“You perceive, my brother Timms,” rejoined the indomitable Williams,

“the court is altogether against you. This is not a country of lords and

ladies, fiddles and harps, but of the _people_; and when the people find

a bill for a capital offence, capital care should be taken not to give

more offence.”

Williams had provided himself with a set of supporters that are common

enough in the courts, whose business it was to grin, and sneer, and

smile, and look knowing at particular hits of the counsel, and otherwise

to back up his wit, and humour, and logic, by the agency of sympathy.

This expedient is getting to be quite common, and is constantly

practised in suits that relate, in any manner, to politics or political

men. It is not so common, certainly, in trials for life; though it may

be, and has been, used with effect, even on such serious occasions. The

influence of these wily demonstrations, which are made to have the

appearance of public opinion, is very great on the credulous and

ignorant; men thus narrowly gifted invariably looking around them to

find support in the common mind.

The hits of Williams told, to Timms’s great annoyance; nor did he know

exactly how to parry them. Had he been the assailant himself, he could

have wielded the weapons of his antagonist with equal skill; but his

dexterity was very much confined to the offensive in cases of this

nature; for he perfectly comprehended all the prejudices on which it was

necessary to act, while he possessed but a very narrow knowledge of the

means of correcting them. Nevertheless, it would not do to let the

prosecution close the business of the day with so much of the air of

triumph, and the indomitable attorney made another effort to place his

client more favourably before the public eye.

“The harp is a most religious instrument,” he coolly observed, “and it

has no relation to the violin, or any light and frivolous piece of

music. David used it as the instrument of praise, and why should not a

person who stands charged——”

“I have told you, gentlemen, that all this is irregular, and cannot be

permitted,” cried the judge, with a little more of the appearance of

firmness than he had yet exhibited.

The truth was, that he stood less in fear of Timms than of Williams; the

connection of the last with the reporters being known to be much the

most extensive. But Timms knew his man, and understood very well what

the committal of counsel had got to be, under the loose notions of

liberty that have grown up in the country within the last twenty years.

Time was, and that at no remote period, when the lawyer who had been

thus treated for indecorum at the bar would have been a disgraced man,

and would have appealed in vain to the community for sympathy; little or

none would he have received. Men then understood that the law was their

master, established by themselves, and was to be respected accordingly.

But that feeling is in a great measure extinct. Liberty is every hour

getting to be more and more personal; its concentration consisting in

rendering every man his own legislator, his own judge, and his own

juror. It is monarchical and aristocratic, and all that is vile and

dangerous, to see power exercised by any but the people; those whom the

constitution and the laws have set apart expressly to discharge a

delegated authority being obliged, by clamours sustained by all the arts

of cupidity and fraud, to defer to the passing opinions of the hour. No

one knew this better than Timms, who had just as lively a recollection

as his opponent that this very judge was to come before the people, in

the next autumn, as a candidate for re-election. The great strain of

American foresight was consequently applied to this man’s conscience,

who, over-worked and under-paid, was expected to rise above the

weaknesses of humanity, as a sort of sublimated political theory that is

getting to be much in fashion, and which, _if true_, would supersede the

necessity of any court or any government at all. Timms knew this well,

and was not to be restrained by one who was thus stretched, as it might

be, on the tenter-hooks of political uncertainty.

“Yes, your honour,” retorted this indomitable individual, “I am fully

aware of its impropriety, and was just as much so when the counsel for

the prosecution was carrying it on to the injury of my client; I might

say almost unchecked, if not encouraged.”

“The court did its best to stop Mr. Williams, sir; and must do the same

to keep you within the proper limits of practice. Unless these

improprieties are restrained, I shall confine the counsel for the State

to the regular officer, and assign new counsel to the accused, as from

the court.”

Both Williams and Timms looked amused at this menace, neither having the

smallest notion the judge dare put such a threat in execution. What!

presume to curb licentiousness when it chose to assume the aspect of

human rights? This was an act behind the age, more especially in a

country in which liberty is so fast getting to be all means, with so

very little regard to the end.

A desultory conversation ensued, when it was finally settled that the

trial must be postponed until the arrival of the counsel expected from

town. From the beginning of the discussion, Williams knew such must be

the termination of that day’s work; but he had accomplished two great

objects by his motion. In the first place, by conceding delay to the

accused, it placed the prosecution on ground where a similar favour

might be asked, should it be deemed expedient. This resisting of motions

for delay is a common _ruse_ of the bar, since it places the party whose

rights are seemingly postponed in a situation to demand a similar

concession. Williams knew that his case was ready as related to his

brief, the testimony, and all that could properly be produced in court;

but he thought it might be strengthened out of doors, among the jurors

and the witnesses. We say, the witnesses; because even this class of men

get their impressions, quite frequently, as much from what they

subsequently hear, as from what they have seen and know. A good reliable

witness, who relates no more than he actually knows, conceals nothing,

colours nothing, and leaves a perfectly fair impression of the truth, is

perhaps the rarest of all the parties concerned in the administration of

justice. No one understood this better than Williams; and his agents

were, at that very moment, actively employed in endeavouring to persuade

certain individuals that they knew a great deal more of the facts

connected with the murders, than the truth would justify. This was not

done openly or directly; not in a way to alarm the consciences or pride

of those who were to be duped, but by the agency of hints, and

suggestions, and plausible reasonings, and all the other obvious

devices, by means of which the artful and unprincipled are enabled to

act on the opinions of the credulous and inexperienced.

While all these secret engines were at work in the streets of Biberry,

the external machinery of justice was set in motion with the usual

forms. Naked, but business-like, the blind goddess was invoked with what

is termed “republican simplicity,” one of the great principles of which,

in some men’s estimation, is to get the maximum of work at the minimum

of cost. We are no advocates for the senseless parade and ruthless

expenditure—ruthless, because extracted from the means of the poor—with

which the governments of the old world have invested their dignity; and

we believe that the reason of men may be confided in, in managing these

matters, to a certain extent; though not to the extent that it would

seem to be the fashion of the American theories, to be desirable. Wigs

of all kinds, even when there is a deficiency of hair, we hold in utter

detestation; and we shall maintain that no more absurd scheme of

clothing the human countenance with terror was ever devised, than to

clothe it with flax. Nevertheless, as comfort, decency and taste unite

in recommending clothing of some sort or other, we do not see why the

judicial functionary should not have his appropriate attire as well as

the soldier, the sailor, or the priest. It does not necessarily follow

that extravagances are to be imitated if we submit to this practice;

though we incline to the opinion that a great deal of the nakedness of

“republican simplicity,” which has got to be a sort of political idol in

the land, has its origin in a spirit that denounces the past as a

species of moral sacrifice to the present time.

Let all this be as it may, it is quite certain that “republican

simplicity”—the slang lever by means of which the artful move the

government—has left the administration of justice among us, so far as

externals are concerned, as naked as may be. Indeed, so much have the

judges become exposed to sinister influences, by means of the intimacies

with which they are invested by means of “republican simplicity,” that

it has been found expedient to make a special provision against undue

modes of approaching their ears, all of which would have been far more

efficiently secured by doubling their salaries, making a respectable

provision for old age in the way of pensions, and surrounding them with

such forms as would keep the evil-disposed at a reasonable distance.

Neither Timms nor “saucy Williams,” however, reasoned in this fashion.

They were, in a high degree, practical men, and saw things as they are;

not as they ought to be. Little was either troubled with theories,

regrets, or principles. It was enough for each that he was familiar with

the workings of the system under which he lived; and which he knew how

to pervert in a way the most likely to effect his own purposes.

The reader may be surprised at the active pertinacity with which

Williams pursued one on trial for her life; a class of persons with whom

the bar usually professes to deal tenderly and in mercy. But the fact

was that he had been specially retained by the next of kin, who had

large expectations from the abstracted hoards of his aunt; and that the

fashion of the day had enabled him to achieve such a _cent per cent_

bargain with his client, as caused his own compensation altogether to

depend on the measure of his success. Should Mary Monson be sentenced to

the gallows, it was highly probable her revelations would put the

wronged in the way of being righted, when this limb of the law would, in

all probability, come in for a full share of the recovered gold. How

different all this was from the motives and conduct of Dunscomb, the

reader will readily perceive; for, while the profession in this country

abounds with Williams’s and Timms’s, men of the highest tone of feeling,

the fairest practice, and the clearest perceptions of what is right, are

by no means strangers to the bar.

The ways of the hour · 第 17 / 30 章