CHAPTER XVII.
“What then avail impeachments, or the law’sSeverest condemnation while the queenMay snatch him from the uplifted hand of justice?”Earl of Essex.
“What then avail impeachments, or the law’sSeverest condemnation while the queenMay snatch him from the uplifted hand of justice?”Earl of Essex.
“What then avail impeachments, or the law’sSeverest condemnation while the queenMay snatch him from the uplifted hand of justice?”Earl of Essex.
“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; withlittle, 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 theinfluence 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 oppressivemeasures as those just mentioned. As for thejurors,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 morecommon 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 eventof 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 waseasy 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 thecrowd 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 thesead captandumremarks 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 behalfof the District Attorney, that Mary Monson, who stands indicted for murder and arson,bearraigned, 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 Frenchvalet 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 worstmen 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 issaid, we very well know; but it is what isdone.
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 thepeople; 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 bequite 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, andthat 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 commonruseof 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 inendeavouring 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 spiritthat 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 acent per centbargain 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 thewronged 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.