PLI c- i OJonwU Sato ^rljmil Sibrarg KF 297.D68 ne " Un ' Versf,y """» 3 1924 024 523 346 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024523346 MODERN JURY TRIALS ADVOCATES: CONTAINING CONDENSED CASES, WITH SKETCHES AND SPEECHES OF AMERICAN ADVOCATES; THE ART OF WINNING CASES AND MANNER OF COUNSEL DESCRIBED, NOTES AND RULES OF PRACTICE. By J. W. DONOVAN, OF THE DETROIT BAB. NEW YORK: BANKS & BROTHERS, LAW BOOK PUBLISHERS. NEW YOBK: 144 NASSAU STREET. ALBANY, N. Y.; 473 & 475 BKOADWAY. 1881. lfit+775 c-i Cof™Ski, 1881. Br J. W. DONOVAS. PREFACE. Very many jury trials of the past quarter century have contained subjects of exciting and romantic interest. Some have been tried by brilliant advo- cates, whose names alone foretell sayings of original beauty; men who possessed the art and genius to please and persuade a court and jury, in a rare degree. A few cases are already reported, but many have been lost by lack of a record in an enduring form. Wise men have given long lives to the study and art of court practice. Their experience and genius, learning and acumen shine in their victories and sparkle in their speeches in gems of wisdom worth their weight in gold. Law libraries are full of reports and digests, that life is not long enough to read. The details of jury trials in a single year would be more than any man could master. But standing out from the rest, with stirring thoughts and thrilling interest, are celebrated cases of the past twenty years, and eminent orators, who turned the verdict of juries, by their skill and eloquence, that every advocate should know and remember. To read them is to see the art by which great suits are won, while no class of literature is crowded so full of incident, human nature, and the wisdom of everyday life. Some of the most important, with as large a variety as possible, of these cases have been selected, condensed, and here reported, with the details and evidence largely omitted. The language and manner of counsel, wit, stories and sketches, are given to show their weapons of warfare. Examples of how juries are selected, witnesses examined, trials prepared, evidence secured, with rules of practice and rare closing periods, taken from stenographers' notes, briefs of counsel, and careful observation, in a dozen different States. Much could be added, and many eminent names would be mentioned, but they hap- pen not to be personally connected with the cases here cited, and their words have not been saved, in form to use, although kindly disposed, they were unable to furnish the speech or sketch that would be of general interest. This report is confined to modem jury cases, many of which are greatly abbreviated, some are reduced from nine hundred to forty-five pages, while their salient points are aimed to be preserved, and the story kept complete. Many of these cases alone would fill a large volume; but the eloquence, inci- dents, genius and acumen of counsel, are shown in cross examination, debates on evidence, and arguments to the jury, without verbiage. The power, pathos and ingenuity of the defense, or logic and stern facts of the prosecu- tion, have been arranged in as terse and readable a form as I could give them, generally giving from thirteen to thirty pages to a case. ir PREFACE. In law, more than in literature, some style of saving jury cases will ba found useful and convenient, as many law books are little more than diction- aries of reference ; while the special features of these trials have crystallized for centuries, and enter alike into all similar cases. The tragic, pathetic and mysterious — -their effect upon human passions, are as fully covered by twenty years of modern practice as by a hundred years among the ancients. Such contests hold the heart-beats of great men, struggling to rescue human lives, with choice "words gathered from a thousand books and enforced by 'graces beyond the rules of art.' " A wise judge has said of law schools, that they teach how things ought to be done in court, but actual practice shows how they are done. It is believed that living examples from actual trials will be more instructive, and give the romance of the law in such enjoyable form as to inspire both young and old with clearer ideas of practice, than the ancient trials and speeches that have lost their keener interest by age and oft repeated declamations. It needs new matter, in exciting scenes, to fire the zeal of the student and move the heart of the advocate (adding a zest from dull, dry law) with a love of the sublime in our profession. Man is always at his best when roused by the scenes of mighty combat. If the treasures of learning have given finish and culture to genius and intel- lect, polish and grace to eloquence and oratory, surely some thoughts will be gathered from the speeches of American advocates and jurists in the great legal duels of our nation's history. The gems of eloquence have not been lost; they are handed down from the Greek and Roman authors, through Demosthenes and Cicero, to Chatham and O'Connell, Everett and Ames, Choate and "Webster, O'Connor and Evarts, Van Dyke and Voorhees, Beach and Butler, Graham and Gordon, Ingersoll and Storrs, Lotlirop and Van Arman, Dexter and Chipman, Curtis and Davis, Brown and Porter, May and McSweeney, Mills and Moran, Seward and Swett, Matthews and Ryan, Edmonds and Carpenter. Hendricks and Tre- main, with a host of other eloquent and able advocates, whose illustrious names alone would fill a volume. From the experience and erudition of these accomplished scholars; from their thrilling and sublime speeches, in their high rank as eminent orators ; from their words, that glisten as the bright index of their minds — enough may be drawn to convince men, that oratory will last as long as the world shall stand; that it is an art, and a science worthy of the closest study, and highest ambition of any age. CASES REPORTED, WITH COUNSEL. PAOE MATT. WARD CASE 10 Counsel — Messrs. Carpenter, Tom Marshall, Got. Crit- tenden, Got. Helm, Ex-President Hates, "Gen. Wolfe. MART HARRIS CASE 35 Counsel — Messrs. D. W. Voorhebs, Bradlet, Carrington and Hughes. DEFENSE OP COOK 107 Speech of D. W. Voorhees. CONSPIRACY CASE 110 Counsel — Messrs. W. H. Seward, J. A. Van Dyke, Senator Howard, John Van Arman. SICKLES-KEY CASE 131 Counsel — Messrs. Graham and Stanton. Defense of home. TRIAL BY JURY 165 Hon. Chas. S. May. (University address.) PIERCE WILL CASE 190 Counsel — Hon. Chas. S. May. FARM AN- WARD CASE 205 Counsel — Messrs. Lothrop, Maynard and Howard. TWENTY-ONE RULES OF JURY PRACTICE .... 209 IDEAL CASES 223 WINNING CASES 224 SELECTING A JURY . 227 CROSS-EXAMINATION .' 228 LUCK OF LAW 230 REACHING A JURY 232 THE O THER SIDE .234 METHOD 235 vi CASES REPORTED. PAGB LAW OFFICE AND TRIAL 238 MAY-STEPHENS CASE 243 Counsel— Messrs. McReynolds, Ashley Pond, S. M. CuTCHbcoN, Wm, A. Moore. FOSTER-HATFIELD CASE 246 Gen. Thos. M. Brown. TRIAL OF UNDERWOOD 203 Counsel — Messrs. Chambers, Chipman and Cheever. VANDERPOOL-FIELD CASE . . . (1) 277; .(2) 282; (3) 292 Counsel — Messrs. Lothrop, Van Arman, Hughes, Cutcheon, Church and Cheeter. McFARLAND-RICHARDSON CASE 314 Counsel— Messrs. Graham and Brady. NEWLAND-EVANS CASE 354 Counsel — Maj. J. W. Gordon. WARD WILL CASE 394 Counsel — Messrs. J. Logan Chipman, Wert Dexter, Darwin Hughes, Rometn and Meddaugh. BRINKLEY CASE 411 Counsel — Hon. Wm. A. Beach. BEECHER-TILTON CASE 412 In brief, with Evarts and Beach sketched. BABCOCK CONSPIRACY CASE 426 Counsel — Messrs. Stokrs, Porter, Dwyer and Broadhead. RAYMOND-HILL CASE 452 Miss Lockwood. ELEVATED RAILROAD CASE 456 Gen. Butler as an advocate and orator. CALLAHAN-TORMIE CASE 465 Counsel — Hon. John McSweeney, and others. PORT HURON RAILROAD CASE 471 Hon. Stanley Matthews. BIBLE IN THE SCHOOLS 473 Hon. Stanley Matthews. STANDARD OIL CO 482 Hon. Stanley Matthews. PAGE IMPEACHMENT CASE 494 Ex-Got. Davis, of Minnesota. BURCH DIVORCE CASE 523 Counsel — Miller, Browning, Van Arman, etc. INDEX TO SELECT PARAGRAPHS. vii PAGE CHIEF JUSTICE RYAN ... 650 On law practice and college course. SENATOR MATT. CARPENTER 567 Personnel of a brillia'it advocate. STOKES-FISK TRAGEDY 571 Counsel — Lyman Tremain. BUFORD-ELLIOTT CASE 606 Counsel — Gen. BEECKENRroaE and Judge Curtis. CLOSING PERIODS . . 666 INDEX TO SELECT PARAGRAPHS. CRITTENDEN VOOEHEES EEWARD VAN DYKE STANTON GRAHAM . HOWARD McREYNOLDS GORDON GORDON . WESTERN LEGAL DUEL BEACH . McSWEENEY BROWNING . MATTHEWS DAVIS . BROWNING BYAN BREOKENRIDGE CURTIS . ARNOLD and others PAOE Allegory 83 Growth of Affection 83 Flight of Time 114 Forecast of Future 123 Art and Sagacity 133 Friendship 134 Wreaths of Laurels 209 Picture of an Accident 245 Flowers on the Grave 362 Tribute to Virtue 373 Picture of a Battle 357 Dexter and Chipman 403 Sacredness of Marriage 411 Duty of Advocates 468 The Mother and her Children 636 Apostrophe to the Bible 478 Tribute to Shakespeare BIS Life's Last Hour 538 Lawyers as Leaders 555 Welcome to Sir Knights 610 Early Affections 647 In Closing Periods 680 PERSONNEL. PAGE BEACH *» BUTLER 456 CHIPMAN .... • 394 CURTIS 630 CRITTENDEN 28 GORDON 356 GRAHAM 130 PAGE LOTHROP 283 MATTHEWS 471 MARSHALL 19 TREMAIN 572 VOORHEES 36 VAN DYKE 116 VANAPvMAN no ORATORS AND ORATORY Ancient and Modern. The charm of oratory, like music, must he heard to he apprecia- ted, and comprehended to be enjoyed. So little can be placed upon paper that only rare passages read well and bear frequent repetition. Yet there are single speeches, that have changed the fate of nations, or saved a poor, quivering human being from a cruel death of horrible torture; speeches that carry with them an inspiration forever, and, like old, familiar songs, when repeated, always awaken renewed interest. Very much of an oration dies with its author and the event that called it into being. A stranger, coming in suddenly on a scene of local interest, in the midst of a stirring speech, would realize but faintly the real spirit of the occasion, and could hardly compre- hend its true beauty. And no one will claim that a clear repeti- tion of that matchless oration of Demosthenes, in his contest for a crown, which included those magic words, " Man is not born to his parents only, but to his country ! " could be delivered by any other than the mighty genius himself, who had long been impris- oned by Alexander; who was moved by the plaudits of a mighty people, whose liberty he believed was hanging in the balance, add- ing fire to his eye, power to his voice, soul to his sentences, and energy to his expression. It was the pleading and the beseeching look from the crowded Athenseum that loosed the speaker's tongue, thrilled his nerves, lit up his features, and formed a granite foundation to his argument. Remove the surroundings, and you remove the charm of the ora- tion. Following in this line of powerful speakers to the days of Edmund Burke, in the seven years' contest in the trial of Hastings, who will say that a true likeness of this great intellectual gladi- 1 2 MODERN J [TRY TRIALS. ator, that made England shudder at the sound of his voice, could he reproduced without the long, long, weary trial, the building up of public sentiment, the occasion that gave force and fervor to debate, genius to oratory, and a scene of tragedy to the effect of his tremendous appeal. Not for the purpose of comparison merely, but as illustrating, that speakers follow and range, in lines of Grecian or Roman ora- tory, as fully as styles of architecture are handed down for generations, in certain models and examples, a chapter is given in this connection, with the briefest extracts of ancient oratory included. In the modern addresses which follow, attention will be given to the manner of delivery, as well as the selection of extended para- graphs from recent arguments, and their effect upon jury cases. In this way, it is hoped, the student and advocate will easily com- pare the recent speakers' words and styles with the immortal names of history, and, in many cases, the modern may read equally as well as the ancient. The bold, glowing words, and deep sympathy, the tragic deliv- ery and intense manner of Burke, in his four days' speech on War- ren Hastings, are first chosen. After a vivid description^ the horrors inflicted upon the natives of India by the agents of Hastings, during which many fainted and were carried out, "He was himself so overcome," says a writer, "as to be unable for many moments to proceed, and with head bowed in his hands, he waited in silence and deep emotion." Then he proceeded: " What is it that we want here, to a great act of national justice? " Do you want a criminal ? " Is it a prosecutor you want ? " Do you want a tribunal?" And then, in a majesty of words simply sublime, he says : " I impeach him in the name of the Commons of Great Britain. "In the name of those eternal laws of justice which he has vio- lated ! " I impeach him in the name of human nature itself, which he has cruelly outraged, injured and oppressed, in both sexes, in every age, rank, situation and condition of life ! " My Lords, I have done ! The part of the Commons is con- cluded ! With trembling hands we consign the product of these long, long labors to your charge. Take it! Take it! It is a pacred trust ! Never before was a cause of greater magnitude submitted to any human tribunal ! " ORATORS AND ORATORY. 3; He was followed by Sheridan, that magic of impulsive oratory and eloquence, in a speech so grand and lofty, that the people sat five hours, spell-bound. No report was ever made of the words, and none could be made, of the fiery sentences as uttered; no pen could sketch the keen, magnetic look; the low, persuasive tones; the loud, vindictive manner; the power and play of passions, like the actor in the scene. This style of Demosthenes was employed by Lord Chatham, the eloquent defender of America, in England, in the time of the Stamp Act, when he said : " If I were an American, as I am an Englishman, while a foreign troop was landed in my country, I would never surrender ! Never ! Never ! Never ! " And by the same statesman, in his appeal for personal rights, when he said : " The poorest man, in his cottage, may bid defiance to all the forces of the crown; it may be frail; the winds of winter may blow through it; the storm may enter it — but the King of England can not enter; all his forces dare not cross the threshold of the ruined tenement ! "* Once in an age will be born other men, and other events, which may resemble, but will never excel, such scenes of mental contest. What was then voiced by a half dozen leaders, is now sown broad- cast by a million papers — saying in advance all that is new or novel in our great achievements. Once in a while, men like Henry will utter, " Give me liberty or give me death ! " to remind us of Grecian oratory, but they will find it a well-told story, often read. And but for a Webster, this powerful style of a Demosthenes would have died before our day. It passed from the stage of actual oratory, and had lain, half forgotten, nearly a century, when Hayiie aroused Webster, in the Senate, to great thoughts, that leaped to the immortal by a single bound; thoughts that could flow in no other channel but the heroic and sublime. In his reply to Hayne, that greatest effort ever made in modern times, the audi- ence sat, silent, and when the giant's voice rang out through the Senate and the halls, and penetrated every room as he said, with such soul-stirring emphasis : " Nor those other words of delusion and folly, ' Liberty first and union afterwards;' but everywhere, spread all over, in characters of living light, blazing on all its ample folds, as they float over the sea and over the land, and in every wind under the whole heavens, that other sentiment, dear to every American heart, ' Liberty and, union, now and forever, one and inseparable ! ' " The audience remained seated in silence; "hands sought eachj * " Orators and Statesmen," by Harsha. 4 MODERN JURY TRIALS. other, eye turned to eye, and hundreds hung breathless on the echo of the orator's words." No orator ever excelled the effect of this master eulogy on our country. And no one can doubt that, in Burke's place, Webster would have fully equalled Burke, or, in Greece, even might have equaled Demosthenes. But there is another kind of oratory, described by Cicero as the art of saying things in a manner to please and persuade, a mingling of passion and reason — thoughts set on fire, the sudden birth of a new expression, of grand ideas, by looks and words and actions — the means by which men are moved. This style of Cicero was not original. He studied it in Greece for years, wholly enraptured with the noble art. It was not Roman, but he gave it a Roman cast, and later historians called it so because it influenced Roman minds. It was neither the style of Demosthenes or Pericles, but of students of the great Grecian masters. Thus oratory has been a borrowed art for ages. This is the kind of oratory more suited to our day. It was employed by the gifted and graceful Roman orator, in his plea for a Roman citizen. It has more of the grace and charm of music and the art of persuasion, coupled with an ease of delivery that tells men to act in a way, never to refuse the simple and sensible request, that steals in on the senses by surprise, and takes us cap- tive at its will. Eloquence is described as close, rapid, powerful, practical reason- ing, animated by intense passion, and speaking in a manner proper to persuade. An excellent example is of Cicero on the execution of Gavius: "In the middle of the forum of Messana, a Roman cit- izen was beaten with rods, and between the blows were heard ''lam a Roman citizen ! ' as if to ward off pain and torture from his per- son; and as he kept on repeating his entreaties, 'A cross, I say, a cross ! ' a cross was made ready for the miserable man. O, sweet name of liberty ! O, admirable privilege of citizenship ! O, Por- cian law ! O, power of the tribunes, bitterly regretted by, and at last restored to the Roman people, in a town of confederate allies, that a Roman citizen should be bound in a forum, beaten with rods by a man, who only had fasces and axes through the kindness of the Roman people ! What shall I say when fire and red-hot plates and other instruments were employed to torture him ? If the bit- ter entreaties and agonizing cries of that man had no power to restrain you, were you not moved by the weeping and groans of the Roman citizens, who were present at the time. Men born in obscure ranks, go to sea, to places never seen before, and, owing to the confidence of their citizenship, they shall be safe. It is a crime ORATORS AND ORATORY. 5 to bind a Roman citizen; to scourge him is wickedness, to put him to death almost a parricide. What shall I say of crucif3'ing him ? It was not Gavius. It was not one citizen. It was the common cause of freedom ! exposed to torture and nailed on that cross ! " The new star in English eloquence came with Erskine, with the style and elaborate finish of a Cicero, sparkling in imagination, replete with graceful gesture, elegance of expression, charm of manner, and refinement of sensibility, that won with an audience, pleased and persuaded. He was slow at first in development, but want and poverty drove him to the law, and when, as he says, " It seemed as if my little children were tugging at my skirts, begging for bread," he cut loose from restraint and became a nat- ural orator. His warm, rich, brilliant sentences, ready and reten- tive memory, powerful imagination, and elegant expressions, acquired by living in the language of Milton and Shakespeare, are read as masterpieces by thousands the world over. ' Of the few whose orations and speeches read well, far removed from the scenes that made them, are those of Cicero, Erskine, Webster and Everett, and of these the world will never tire of hearing. It is said that the single oration of Everett, on Washing- ton, was delivered over a hundred times, in the different cities of the Union, and always to interested audiences. As the style of Webster was grand and vehement, like Demos- thenes, the words and manner of Everett resemble Cicero. That same copious flow of beautiful, elaborate imagery, the refined, melodious sentences, the elegant and persuasive delivery, the rare sympathy and finish, the matchless arrangement of happy thoughts, gave a harmony to his utterances that will never be forgotten. Space allows but one selection, old and yet ever new, for it never has been excelled in all the annals of eloquence. Horace Greeley said this speech of Mr. Everett, and Mr. Lin- coln's speech at Gettysburg, and John Brown's address at Harper's Ferry, were the masterpieces of American oratory. I would change from Mr. Brown's speech to Mr. Webster's, and agree with Mr. Greeley. But here are the words of Everett that tell their own story: " Welcome, friend of our fathers, to our shores ! Happy are our eyes, that behold those venerable features ! Enjoy a triumph, such as never conquerer or monarch enjoyed — the assurance that, throughout America, there is not a bosom which does not beat with joy and gratitude at the sound of your name. Welcome ! thrice welcome, to our shores ! and whithersoever your course shall take 6 MODERN JURY TRIALS. you, throughout the limits of the continent, the ear that hears yon shall bless you, the eye that sees you shall give witness to you, and every tongue exclaim, with, heart-felt joy, ' Welcome/ welcome, Lafayette ! ' " In classic beauty and polished sentences Cicero seldom equaled and never excelled these passages. As has been said, tone, voice, manner, gesture and expression die, in a large degree, with, a speaker; they can not be reproduced in print. While this is true of Mr. Everett, it was doubly true of Mr. Webster, whose swell of voice and ponderous sentences were fit expressions of a giant mind that the cold, printed page can never convey. If this rapid glance at the orators of renown, and a few gems of their sayings, may serve to interest a reader, on themes gone by, how much more should our later events and modern court trials and orations serve to stimulate the advocate of to-day, as he reads the points worth preserving, and too often lost, of trials within twenty years in which orators of our times have contended in men- tal duels, where ripened learning meets an equal foe, and where advanced civilization crystalizes the good and eliminates the ver- biage of ancient oratory; where the higher intelligence of mankind demands that the methods of practice shall grow clearer and terser, to keep pace with the progress of the age. The orators of to-day are the Wires and the Presses. The elo- quence is often supplied by the editor's quill. But there is, and always will be, a demand for stirring and eloquent speeches, in court, in Congress, and on the rostrum. It is felt to-day as with the ancients, only in a less quantity and more refined degree. The oration of Ingersoll at Cincinnati in '76, the master speeches of Conkling and Garfield at Chicago in 1880, or the thrilling eulogy of General Dougherty on Hancock the same season, were delivered with as much energy and effect as the speeches of Clay and Cal- houn, and but for the power of the press, which had filled and prepared the people, the multitude would have been carried cap- tive at the will of the speakers (as in the last instance they seem to have been). Men and manners may change, but truths and pas- sions are eternal. Fear, hope, reward and human sympathy always have been and always will be subject to influences, and are swayed by the power of great minds, acting on minds, through the medium of eloquence. There are thoughts and themes that grow by repetition, like the songs of Burns and Whittier, and the plays of Shakespeare. Orators have arisen, and will arise, who voice one event and one ORATORS AND ORATORY. 7 occasion; men with neither learning nor grace, nor logic, nor fine words, but with the rugged manner of a native Indian, drawing their inspiration from the Almighty, with a genius horn of heaven, grouping some homely thoughts in eloquent delivery. Some one shall say again, in that beautiful rhythm of sympathy and grandeur, " Let it rise! Let it rise! till it meet the Sun in the glory of his coming! " Some one will "look on a sea of upturned faces," who has not the gift to raise mortals to the skies, nor that other power to drag angels down! "Modern civilization," says a great writer, "is the difference between an Indian's hut and a lady's parlor." But oratory has not advanced in that degree, for the brightest orations of our day have never excelled those of the ancients; nor have the most cultivated speakers ever used choicer words than did the little Indian girl at Omaha, who spoke in the simplest language of Nature, when she said, " It is but a little thing my people ask, yet infinite in its con- sequences; they ask for liberty, and law is liberty ! " By saying that eloquence is often born and never made, it may as well be said that oratory is oftener made than born. The true orator, like 'the wrestler, walker, or oarsman, is a thoroughly trained and skillful man, read and cultivated to the art assumed; he has to deal with an age of reason, and he must deal- in living lines of history, science and events; he must be "burnished like a sil- vered sabre, without one rusty spot." American advocates have realized this requirement. They are terser, clearer and more industrious and ingenious every decade. They are growing more fertile in resources. Fifty years ago the plea of emotional insan- ity was unknown; now it's a sheet anchor to the rich and influ- ential ! Counsel do not all believe that way, and a clearer picture of law and its uses will never be made than that beautiful word painting of Major Gordon, when he describes how "It surrounds us like the air we breathe, and lived before our being; that meets us in our helpless infancy, shields us with a mother's tenderness, follows us through the perilous journey of our lives, guards' our liberty from the cradle to the coffin, and defends our persons and property from harm; walks with us to the verge of the deep, dark valley, protects our lifeless remains in peace till the coming of the resurrection! Nay, even the sweet rose, planted by the hand of affection, or the wild flower growing on our graves, shall all be guarded by the strong arm of law!" A graphic description of law and evidence is aptly given by Mr. Lothrop, when he says : "All the mists are cleared away. The 8 MODERN JURY TRIALS. obscurity that surrounded this case has disappeared. It is as though, the walls of that bank were lifted up and the bright September sun should stream in, and show the dreadful deed! In the light of all this evidence, you see, standing over the body of his prostrate vic- tim, his hands dripping with blood, the murderer of Herbert Field! " Truly the walls are lifted, and we look in! The sturdy appeal of General Browne, for the law's vindication, is given in the Hetfi eld homicide: "Take this widow, and her helpless orphan children, and go to that lone and lonely kirk yard, and, standing by the grave of Calvin Hetfield — unmarked by stone or monument — and, in view of the great sorrow that this defendant has brought into the world, there, there write your ver- dict ! " The sweeping and dramatic sentence of Storrs, in the defense of Babcock, is excellent: " He is not guilty, gentlemen, he is not guilty! I feel an inspiration settling in this court room, stretching away to Washington, as if to bear the glad news to his devoted family, who, in his humble home, where an anxious wife, now sur- rounded by her little children, are kneeling, watching, praying and looking to God! for his deliverance and joyous return to the capi- tal of his country, that he has served so long, so faithfully, and so well!" Here the speaker carries his hearers a thousand miles with a single sentence. The massive periods of Seward, and prophetic forethought of Van Dyke are too full of the sublime to afford a separation for introductory extracts. They will be found in extended paragraphs in the cases to which they pertain. And again, the sterner words of Judge Ryan: "Whether they come in the soft, white gloves of peace, or the dark, bloody gaunt- lets of war,'' breathe forth a Roman beauty The deep drawn pathos of Graham, " Long enough has he endured the pelting of this pitiless storm; and who does not hope that he will find an asylum in your justice, and that it will be seasoned with mercy, as you yourselves expect to be forgiven! " is thick with emotion. The homely eloquence of McReynolds, pleading for the little orphans is rare: " My work is done, gentlemen; but you will do a better work. Even now, by your silence and your interest in this case, methinks I hear you say, 'Stop! delay not longer! Let us begin this work of justice. Stop! that we may rebuke this cruel com- pany. Stop! that we may restore these orphans to their own! to that pure character that they will love to honor; a character as ORA.TORS AND ORATORY. 9 pure as they knew their mother on that last and long good night, the night before the night of death! Stop! till we give a verdict that will vindicate a mother's name and a mother's love for her children!'" The thrilling word-picture of John McSweeney, in the Tomie case: "Make room! Make room for Tomie! Bleeding Tomie! Dying Tomie! Shrouded Tomie! Murdered by his friend in manhood's prime!'''' were enough to cause jurors to faint and women to fall in hysterics. The massive periods of Butler and Mathews are too long for extracts. The stirring sentences of Beach are rhythms of beauty: "They were married when he enjoyed the bloom of her youth and heart's loving tenderness! Married when it flattered his vanity to control her beauty! Married when she went through the valley and shadow of death to bear his children! But when of all times mar- riage is most sacred, when they should be leading each other along the western hill slope, to rest together at its foot, then it is he seeks to cast her off! and call the contract spurious! Married! Married! Married, gentlemen! Why you know they are married! " Or that touching and brilliant appeal of Voorhees, for Mary Harris, that moved all hearts within hearing: "The wife who is graced by her husband's love is more beautifully arrayed than the lilies, and envies not the diadems of queens! But to the young virgin heart, more than all, when the kindling inspiration of its first and sacred love is accompanied with a knowledge that for it, in return, there beams a holy flame, there comes an ecstacy of the soul, a rapturous exhalation more divine than will ever again be tested this side of the bright waters and perennial fountain of paradise! O, how her prison cell has been lighted by the purest and gentlest of her sex, and delicate flowers from the loftiest statesman in the world, have mingled their odors with the breath of her captivity! In the name of Him who showers His blessings on the merciful, who gave the promise to those who feed and clothe the hungry strangers at their gates, unlock the prison door ! and bid her bathe her throbbing brow once more in the healing air of liberty ! " MODERN JURY TRIALS AND ADVOCATES. MATT. ¥AED CASE. Meld at Elimbethtovm, Ky., April, I8S4. Considered in the light of interest, incident, character of parties, witnesses and counsel, few cases have excited such general com- ment in the south as the eloquent defense of Ward for the killing of Prof. Butler, near Louisville, Kentucky. The story of the case is a brief one. Three brothers, Wil- liam, Robert and Matt. Ward, had an altercation with Prof. Butler, the teacher of William, and other young men from sixteen to twenty-two years of age, of high spirits and aristocratic origin, in Louisville, Ky., and in the course of the controversy the teacher called William a liar, and was called on by the brothers for a retraction. Butler refused, and Ward called him " a d d ras- cal and a d d coward." Butler clinched, and Ward shot him, fatally, in the left lung, with a pistol, which he bought that morn- ing and had lately loaded. Such a trial in the south is never forgotten. The theory of the defense was well stated by the words of Gov. Crittenden, "A blamable necessity; not justifiable, but excusable." There was a conflict of testimony as to which struck first, but it is clear that Ward was the weaker man and harmless generally, of excellent character, had traveled abroad, written some acceptable work, was highly respected (as was Butler), but no match for But- ler in a hand to hand conflict. The prosecution argued that it was a premeditated killing; that the newly bought and loaded pistol proved it; that the insulting words showed it; that satisfaction meant shooting to kill and mur- der. They made a strong showing on, " If the case was reversed, and had Butler killed Ward for a grossly indecent attack, could he not be justified ? If so, Ward was guilty." The speeches of General Wolfe, Governor Crittenden and 12 MODERN JURY TRIALS. Tom Marshall, were extremely able, and passages very eloquent. The beautiful quotations from a visit to the scenes of the Saviour's crucifixion, and an allegory of the creation of man, were used with effect; where Justice, Truth and Mercy come and plead with the Creator, saying, " Make him not; he will defile Thy temple. Make him not; he will set at defiance Thy law," and finally Mercy says, " O, make him, Father! and I will follow him and bring him back to Thee!'''' These are all brought out in the highly interesting and rhetorical arguments of counsel. Ex-President Hayes was among the distinguished advocates. The trial lasted nine days. There was a defense of self defense, and no more. From first to last this trial is striking and peculiar. The order and courtesy are commended as models of jury practice. To follow in the steps of these distinguished counsel (all of national fame), is a sure road to correct practice. They are safe authority on the art and sagacity of management. The defense secured a change of venue from Jefferson to Hardin Circuit, and obtained a fair and impartial jury by only one chal- lenge. The clerk then read the indictment, and the court gave a brief charge to the jury, showing how they should find not guilty or guilty, and, if guilty, to state the degree of murder or man- slaughter. Some twenty or thirty witnesses were sworn, showing the quarrel and the shooting, the last words and the death of But- ler; the strength and conduct of each, the purchase of the pistol, etc., ending in the character of Ward, which was proven to be excellent by a score of men reaching as high as Geo. D. Prentice, of the Courier -Journal, and the Mayor of Louisville. There was a terseness and directness in the order of the trial seldom equalled. The court admitted the testimony of the custom to carry arms in Kentucky ; of Robert Ward, a co-defendant, who was present at the shooting (this after long debate). The testi- mony of Mrs. Butler was singularly impressive. When, in referring to her husband's last words, she covered her face with her veil and remained silent, she was allowed to retire without cross-examina- tion. The following is a sample " passage at arms" by counsel: Witness, to Mr. Carpenter. — Attend church sometimes ; have been in the Sabbath school a few times. Mr. Marshall — Does the gentleman desire to prove that his witness is an infidel, and that his religious education has been entirely neglected? If so, we readily admit it! (Laughter.) The Court — Such questions seem to be unnecessary, and I trust will be omitted in the examination. MATT. WARD CASE. 13 Mr. Carpenter— Certainly, if they are deemed improper. And this seems to be hardly the place for the theatrical performances we have just witnessed. Mr. Marshall — There is a great variety of theaters in this world, and you have performed characters in some of them that are by no means enviable. Mr. Carpenter — So have you, sir. The Court — I must insist that the gentlemen refrain from remarks of this character. Mr. Marshall — I desire to treat the court with all due respect; but, sir, the gentleman has addressed a personal charge to me, and I felt bound to retort. He has accused me of assuming theatrical airs, which I must certainly repel. Why, sir, my manners are the most natural in the world, and have been too long worn to be thrown off at this late day. And when a personal and insulting remark is made commenting upon them, I need not say that it is offensive. Mr. Carpenter — I intended no insult to Capt. Marshall — it was merely a side-bar remark. The Court — Let the case proceed without further interruption. James M. Allen, sworn — Reside in Yazoo City, Mississippi, was in Louisville in November last; on the day £>f the accident, in the morning, I was sitting in the office of a hydropathic establishment, where I was a patient, when Mr. Sturges entered and said: "For God Almighty's sake run for a doctor; Prof. Butler has been shot, and is killed! " He ran out, and just then Matt, and William Ward passed the door of the office; I started to Dr. Caspari's office, but saw one of the school-boys before me, and did not go; Gudgel and myself then went towards the school house; in the yard in front of it there were some ten or fifteen boys; went in and made some inquiries; one of the lads was Mr. Worthington's boy — the others I had frequently seen, having often exercised in the gymnasium with them; they were pupils there; I asked where Mr. Butler was; I passed up the steps and shook hands with young Worthington, and addressed the question to him; think he replied that Butler was gone; I then asked how this happened; the boys were all collected around me and seemed anxious to communicate; several of them answered my question, and Worthington, though he did not speak, nodded his head in assent. Mr. Crittenden — What was the answer you received? The prosecution objected to the question, contending that the 14 MODERN JURY TRIAL8. expressions of the school-boys could not be evidence unless they were identified as the individual boys who had testified here. The witness had understood Worthington to assent to the state- ments made by the other boys at the time. The court therefore ruled the question to be legitimate. Witness — Several boys spoke at once, and replied that Ward came there and cursed Butler; that Butler then struck him and Ward fired ; think one of the boys said Butler took hold of Ward. This testimony, except so far as relating to Worthington, was ruled out by the court. J. T. Gudgel, sworn — Accompanied Mr. Allen to the school house after the unfortunate affray; Butler had gone, but there were fifteen or twenty boys about there; we inquired how the matter occurred; addressed the inquiry to the whole crowd of boys who were there; did not know any of the boys; five or six answered that Ward had come to demand an apology of Butler; that Butler had refused to give an apology, and ordered him out of doors; all said that Butler had struck the first blow, and Ward had then fired; some of them said Butler had pushed Ward back and nearly thrown him down, and that as he was getting up he fired the pis- tol. Mrs. Harney, sworn — Am the wife of Mr. Harney, editor of the Louisville Democrat. When I reached home Prof. Butler was already there; I found him lying on the rug in the parlor; the house was full of people; I did not speak to him until some three quarters of an hour after I returned; then had a conversation with him; when I entered the room he raised his hand tome in recognition; I knelt by his side and begged him to be composed; he seemed very much agitated; I told him to be quiet, as much depended on it; that the physician thought it was only a flesh wound, and we hoped he would recover; he said he could not, and repeated the same words; he said, "ISTo, do not be deceived — I cannot live; when I am gone, will you be kind to my poor wife and baby ? " He then desired to see Mrs. Butler; he seemed impressed with the conviction that the wound was mortal; I was with him until his death. I brought Mrs. Butler in at his request; he died the same night, between 12 and 1 o'clock. Mrs. Elizabeth Butler, sworn — When Mrs Harney took me to my husband, he told me not to be deceived — that he was dying; I told him to be calm, that the physicians thought he would recover, MATT. WARD CASE. 15 but that every thing depended on his being kept quiet; he said, "No, Lizzie, don't deceive yourself — I am dying;" he thought, until his death, that the wound was fatal. * * * Witness was here overcome with emotion — and a woman's weapon, tears — and covered her face with her veil. The counsel for the defense declined asking Mrs. Butler any question, remarking that they had no desire to inflict suffering upon her by calling her mind to the details of the unhappy occur- rence. Dr. D. D. Thomson, sworn — Reside in Louisville, and practice my profession there; shortly after 10 o'clock, on the morning of the second of November, was called to Col. Harney's residence to see Prof. Butler; he was deathly pale and faint; several boys were holding him up, and I had them place him in a recumbent position; he asked me if he was not a dead man; I told him I hoped not, but could not tell until I had examined the wound; we took off his coat and tore open his shirt; the wound was on the left side, about one and one-half inches obliquely above the left nipple, it was much burned with powder around it; I attempted to probe it, but failed to do so, being unable to follow the wound. Dr. Tj. P. Yandell, sworn — Am a practising physician in Louis- ville, was called in to see Prof. Butler, on the second of November, shortly after he was shot; he seemed to be mortally wounded; Dr. Thomson was attempting to probe the wound, and when Dr. Cald- well came in, he attempted to assist; the probes did not seem to penetrate the chest, and we then felt and expressed a hope that the wound might not be fatal; shortly after, however, I heard the blood issue from it in a manner that convinced me that the ball had entered the cavity; when I asked the position he was in as he received the wound, he replied that they were clinched; that Ward called him a d d liar or scoundrel, and raised his hand; that he (Butler) then struck Ward — they clinched, and was immediately shot; the ball passed through a part of the left lung, where the ves- sels are large; it caused his death. Dr. Muguet, sworn — Reside in Louisville; was with Prof. Butler, after he was shot, on the second of November; Went to see him about half-past one o'clock, and remained a short time; went again at half-past seven, and remained until his death; was present at the post mortem examination; was well acquainted with Prof. Butler; his right hand was always disabled; he could not open or close the fingers of it. 16 MODERN JURY TRIALS. J. J. Gillrnore, sworn — Reside in Louisville; am a gunsmith; on the morning of the second of November last, Matt. F. Ward came into our store about nine o'clock; he asked to look at a pistol; he took it, examined it, asked the price, and told me if I would load it he would take it; I did so; he then hesitated a moment, asked the price of the pair; I told him, and he said if I would load the other he would take the pair; I loaded the other, and he took them; he inquired for small pocket pistols; the pair I sold him were small, self-cocking ones; this pistol is one of the same kind; they are good pistols; suppose they would shoot through an inch plank, two feet from the muzzle; I loaded each of them with powder and ball, and put caps on them; they were fully prepared for use; did not observe whether he put them in his pocket; do not recollect that he said he wanted pistols that were certain, or any thing of the kind; there ■was some conversation that I do not remember. Mr. Crittenden (for the defense) here stated that he desired to introduce Mrs. R. J. Ward, to prove a single fact as explanatory of the necessity of this defendant arming himself, if the court deemed it admissible. This fact was, that some months prior to the occurrence of the principal fact they were now investigating, Mr. Sturges, the assistant teacher of Prof. Butler, had become so much embittered against this defendant — Mr. Alle.v asked the court that, in speaking upon these points, the counsel might be confined strictly to the legal questions, and not allowed to argue the case itself. Mr. Helm — I am very thankful to the prosecutor for any instruc- tion he may give me. As I am a young man, I stand peculiarly in need of it ! Mr. Allen — Not at all, sir; but I am well aware that we are swivels here, fighting against twenty-four pounders, and I am desirous that they may be confined as much as possible. Mr. Helm — Some of your swivels have been brought from so great a distance that I fear they will hardly repay first cost. Mr. Carpenter — Should that be the case, it will be our misfor- tune, not our fault, Governor Helm! The Court — I trust the case may not be impeded by such remarks. They are quite unnecessary. Mr. Helm — I am aware of it, but when the gentlemen talk about swivels and cannon, I think we have a right to retort. Mr. Marshall — Well, this seems to be grape shot! (General laughter.) The defense now stated that they desired to introduce as a wit- ness, Robert J. Ward, jr. MATT. WARD CASE. 17 The prosecution objected, on the grounds that the proposed witness was jointly indicted as a principal, with the defendant, in this case. Mr. Gibson cited various authorities in defense of the position. Mr. Crittenden replied at length, contending that the testimony would be competent, and reading from a large number of authori- ties, on which he based his argument. Mr. Gibson replied, after which The Court ruled the testimony admissible, having first reviewed the arguments offered on both sides. It seemed necessary to a fair investigation of this case, that the witness should be admitted, his credibility being a matter of fact for the jury to decide. Robert J. Ward, a brother and co-defendant, was sworn, and gave the full details of the affray. Then followed evidence on the custom to carry arms, as to which Witness said, I do not know. Mr. Wolfe — Are you not armed now, sir? Did you not arm yourself before you left Louisville ? Witness — I shall decline to answer unless I am directed to do so by the court. The Couet — The witness is not compelled to answer the question unless he sees fit. Direct resumed — In our efforts to probe, did not follow the ball further than just beneath the skin; was with Butler, with the excep- tion of two intervals, until he died. To Mr. Wolfe — Prof. Butler remarked, during his account of the matter, "I did not see who shot me." Mr. Wolee — You are a member of the Presbyterian Church, I believe, Dr. Thomson ? Witness — I am ; have been for ten years. Mr. Wolfe — Are you not a teacher in the Sabbath school? Witness — I am, sir. Mr. Wolfe — Is it usual for members of the church to carry arms ? Witness — I do not know; am not aware of any regulation in the church in resrard to it. Mr. Wolfe — What have you done with those pistols you had on your person yesterday ? The Couet — You are at liberty to answer the question or not, as you please. Witness — I decline answering unless I am under legal obligation to do so. 8 18 MODERN JURY TRIALS. A specimen of character evidence: Dr. James C. Johnston — Have lived in Louisville about sixty- five years; have known defendant ever since he was a boy; he has always been very remarkable for his amiability of temper and courteous manners to every one;, his health has been very precari- ous for many years; his frame is extz - emely delicate. Mrs. Judge Oldham, sworn — Reside about three miles from Louisville; have known defendant for upwards of twenty years; his character for peacefulness and amiability, both as boy and man, has been unexceptionable and excellent. Mrs. Major Gwinn, sworn — Have known defendant intimately for twenty-two or twenty-three years; he has always been a kind and affectionate son and brother, and borne an excellent character for gentleness and peacefulness. George D. Prentice, sworn — Have lived in the same city with Mr. Ward since his early childhood; have always known him well from general reputation, and for a few years past by intimate per- sonal acquaintance; have found him as mild, quiet and amiable a gentleman as I have ever known; he has been an invalid for many years, and often unable to go into the streets; have believed birr to be a gentleman of spirit — one who would be prompt to resent an insult, but remarkably quiet in his disposition; on account of his attention to letters, his character has been more generally known and discussed than that of most young men of his age; his letters were originally published in my own paper, the Louisville Journal, and my connection with him has been frequent and intimate; never heard but one opinion expressed in regard to his disposition; he was very feeble shortly previous to this occurrence, in November; he then walked with crutches. [Other evidence on the killing, death and character would be cumulative, and is omitted. It would not change the tenor of the story. A very little reflection on the order of proof will enable a student to follow the steps in a murder trial, from commencement to end, and retain them in memory.] Mr. Carpenter spoke eight hours to the jury, for the State, in most excellent language, and found its response in the audience, who studied the defendant carefully and waited with breathless anxiety for the stirring words and thrilling sentences of Tom Mar- shall, the Great actor-advocate of the South. MATT. WARD CASE. 19 Here began an array of flowery passages and brilliant replies rarely equalled. [Tom Marshall was born 1801 and died in 1865; son of Dr. Mar- shall; the nephew of Chief Justice Marshall, a Southern orator of great renown; a relative on his mother's side of the Prestons, Blairs, Browns and Breckenridges, the oldest Kentucky and Vir- ginia families. He was over six feet in height, strong and grace- ful with all the graces of an orator, wit, humor, rhetoric and elo- quence, and for thirty years the most conspicuous advocate in Ken- tucky. In politics erratic; in habits inclined to intemperance; with a voice clear and flexible; a manner indescribable, at times grave, severe, chaste, and always original and effective. He could move or convulse an audience at will. He was a great master of lan- guage, and in early life was an industrious student. He mastered his profession and understood human nature and the effect of evi- dence and argument. No report of his speeches give his incom- parable manner of reaching a jury. He was a genius born to the law. Drink alone dimmed his brilliancy. " They talk of my astonishing bursts of eloquence (he said), and doubtless imagine that it is my genius bubbling over. It is nothing of the sort. I'll tell you how I do it. I select a subject and study it from the ground up. When I have mastered it fully I write a speech on it. Then I take a walk and come back and revise and correct. In a few days I subject it to another pruning and then recopy it. Next I add the finishing touches, round it off with graceful periods and commit it to memory. Then I speak it in the fields, in my father's lawn and before my mirror, until gesture and delivery are perfect. It sometimes takes me six weeks or two months to get lip a speech. When I have one prepared I come to town, am called on for a speech and am permitted to select my own subject, It astonishes the people, as I intended it should, and they go away marveling at my amazing power of oratory. They call it genius> but it represents the hardest kind of work."] Mr. Makshall said, "Gentlemen : In appealing to you, as the representatives of a merciful God, it appeared to me that it would have been quite enough .for the gentlemen to consign the prisoner to an early and disgraceful grave in the midst of all his promise and all his hopes, without intruding such a rhetorical display upon him. It appeared to me, that after recommending him to such a grave, or, in- case he should escape it, to the whips and stings of conscience on all occasions and in all 20 MODERN JURY TRIALS. climes, and to every horror that a distorted imagination has been able to depict, we might at least have been left to our fate, and spared the infliction of such a speech and such an appeal. And to crown the whole, you are gravely exhorted, out of simple mercy, to rescue us from the horrible phantoms that have been conjured up, by handing us over to the hangman! * * * * * * * " Attention has been directed to the past life of the accused, and this traveled young gentleman is graciously informed that he may commence his travels over again. But the permission is coupled with the assurance that wherever he may go — whether he shall climb the rugged Alps and wander in the regions of Polar cold, or roam through the sunny climes of Italy and France, still every opening flower shall remind him of the flowers he has left blighted at home. Should he seek the blue ocean, we are told that each white cap will remind him of the shroud of his victim, and that in the boom of every surge, he shall hear the rattle of the death shot." Here follows a scathing review of the testimony throughout, and a running and witty comment on salient facts, with: " What Ken- tuckian will find him guilty who resented a gross insult to his brother before a class of his peers ? Would a true brother have done less ? It is not my duty to stir rudely the ashes of the deceased, but I put it in all candor, what ought he to have done f " And so on in that daring, defiant, yet chivalrous good humor, that he swept the audience with him like leaves in the wind. Com- ment had been made on witness Barlow as a carpenter, and Tom Marshall said, " why, I always consider one carpenter as good as another — one brought away off from Campbell County to build a gallows to hang the prisoner on, the other to testify in his behalf!" " He had the right, and exercised that right of self-defense with which Nature has provided him. But what does this right mean, and how far does it extend ? It confers upon me the privilege of beating off any injury or infringement upon those inherent rights with which God and Nature have provided me. It gives me the right to exercise any means, to use any amount of force that may be necessary to repel such attacks. No man has a right to take my life; I may defend it and preserve it at any cost. But this is not all; a man's rights are not confined merely to the preservation of his life. He has others, many others, guaranteed by nature, that are nearer and dearer, and which it is his privilege and his duty to protect. Without these, life itself could have no charms; and had I no other right than the simple MATT. WARD CASE. 21 one of existence, I would raise my own wild hand and throw back my life in the face of Heaven, as a gift unworthy of possession ! I maintain that I have as much right to defend my personal lib- erty as my life; but the force to be used is only that necessary to repel the attack, and to prevent injury. Were this defendant to attack me, and attempt to chastise me, I would have no right to take his life, because he is an invalid, and so far inferior to me in physical strength, that I have no reason to apprehend any serious injury. But with a man of more powerful frame than myself, the case would be different. He has no right to attack me; I have a .right to defend myself, and I may use just the amount of force necessary to do so. If I choose I may strike him with my fist. That would show a great deal of game; but if he were stronger than I, it would certainly tend to exasperate him, and render my chastisement six times as severe as it would otherwise have been. Perchance I may be able to seize a bludgeon, with which I can fell him to the earth, and thus protect myself. But if no such means are at hand, will any man, will any Kentuckian, tell me that I must stand and be beaten like a dog, at his discretion ? Certainly not. I may repel him and defend myself in any way I can, and if noth- ing else will prove effectual, I have a perfect right to cut his throat from ear to ear. I may use any amount of force whatever that is necessary; and this, as I understand it, is the law on the subject, as construed, applied and executed, throughout the land. I ask you to look at the facts in this case, and apply the law to them. Should he die for this ? Does this act make it necessary for that youngprisoner to be stricken from the roll of living men ! Does it render him unfit to live, and a dangerous member of human society ? But if you think to mitigate his punishment, will you immure him within the walls of a penitentiary ? Will you cut those flow- ing locks — will you shave that classic head — will you snatch him from the bosom of his loving family — tear him from the arms of his girl-wife and rudely sunder every tie that makes life dear ? Will you do this and call it mercy ? As the representatives of a just and merciful God, if you feel it your solemn duty to punish him, O, let him die! Talk not of mercy, while you inflict upon him a curse for which there can be no human parallel, a punishment to which death is nothing in com- parison. No, no! if you talk of mercy, show that mercy the prose- cutor spoke of this morning — the mercy of the grave. O, give him liberty or give him death ! But the prosecutor seemed greatly afraid of mercy, and again and again he enjoined it upon you to 22 MODERN JURY TRIALS. show none. He thought that perhaps the Almighty might possess some, but of even that he seemed to be doubtful, and he charged you to beware that not a single feather should fall from the wings of the dove, to contaminate this jury box by its presence. For the sad event that has occurred, we feel regret — deep, last- ing, bitter. If that day's act could be recalled, no man on earth would do so much to reverse it as the prisoner at the bar. We sympathize deeply with the afflicted family, and lament the occur- rence that bereaved them. But we have felt, and we feel now, no such stings of conscience as have been described here. We have thrown ourselves for trial upon God, our Creator, and upon you,' our country; and we have said "Not guilty," to this indictment, because we are not guilty of the crime it charges. The awful con- sequences of a verdict, such as it is in your power to render, appal us with horror — but mingled with that horror there is no remorse — there are no stings of conscience. Not guilty, we say, living; not guilty, we say, dying, and not guilty, we will ever say ! You have heard the character of this defendant proved — and such a character! Did you ever know it surpassed ? Could there be one more mild, more gentle, more peaceful, and more universally beloved ? Men of all professions and occupations — of every posi- tion in life — have testified to the fact that this was true alike of the boy and the man. As he grew to manhood, perhaps from too close attention to study, his health failed, and he went abroad to regain it. And whatever your decision shall be, he has left behind a monument that will ever place his name high among men of intelligence and of letters. I allude to this volume; I suppose I may not read from it, for the gentlemen might object that it had not been offered in evidence; but it shows how my unhappy client has spent his time. And I owe him much for the gratification I have experienced, as I followed him in his wanderings, on hallowed and on classic ground. I have been with him down the beautiful Rhine, within the ancient walls of Aix-La-Chapelle, up the sluggish Nile, and on Mount Sinai's rugged brow; and, O, if I were permitted to read to you the thoughts and feelings that there swelled his breast, you would real- ize what a heart you are entreated to crush — what a light of genius you are asked to extinguish forever ! It were pitiful that he should die so young — now in the full flush of his early manhood — one so loved in the social circle, one looked upon so hopefully by the church, one who has proved him- self so glorious a genius and so fit to lead the young men of America — it were a pity that he should die, even by the unrelent- MATT. WARD CASE. 23 ing hand of disease, and when surrounded by all that he loves on earth. But to be cut off thus — in such a cause — to be sacrificed in response to such a wild, insatiate cry for blood as has been raised by this prosecution — O, it were pitiful, it were marvellously pitiful! I have pleaded this case only by the law and the facts; but were I compelled to ask mercy, was there ever a case in which it could be shown with more propriety ? Yet I do not ask you to pardon — there is no occasion for that. I ask you to do your duty, to exam- ine the case carefully, to see if you discover the elements of mur- der there, and then tell us if you can say that this young man shall die — shall die a felon's death ! I know you cannot. I have spoken long, gentlemen, and perhaps have wearied you. I need not have consumed so much time, for I feel confident that the cause of my client is safe in your hands. I know that others are to follow me, the latchet of -whose shoes I am not worthy to unloose; and if I have left any chasm in the argument of this case, I am sure they will fill it up. I thank you, gentlemen, and take my leave. Gov. Helm followed, in an able and logical speech for the defense, already doubly strong, very largely a legal argument. The concluding words were: "The case, gentlemen, is with you. I have endeavored to con- sider it in all its bearings, so far as my feeble condition would permit. I have only sought to explain fairly, both the law and the facts. And now, what are you called upon to do ? Will you consign this prisoner — this unfortunate, but noble specimen of young manhood, for the fatal deed of a single hour, to a dark and dishonorable grave ? Or, if not, will you inflict upon him that other, but equally terrible punishment? Have you the heart as he now stands, that fearful, insidious disease preying upon him, with one foot on earth, and the other trembling on the brink of eternity, to make him an out6ast from the world, and confine him in a felon's prison ? " It would be only to lay him on a couch of suffering and disgrace from which he would never rise again. It would be only to banish him, during the short remnant of his life, from that kind mother, who, with anxious care and fondness, has ever watched over him, the pride of her heart, and the pledge of her first love; from that gentle, devoted young wife, who is bound to him by ties no less mysterious and vital than those which unite the Siamese twins, and the parting of which must lay them side by side, in one early grave. 24 MODERN JURY TRIALS. " In the name of that wife, in the name of that mother, in the name of simple justice and of common humanity, I ask you to give him back to life ! " The speech of Nathaniel "Wolfe, for the defense, abounds in apt and original matter, caustic and severe on opposite counsel, stinging and sharp in replies, and brilliant in original wit and happy illustrations. He denied the right of a teacher to whip a child, and said: "I endeavor to teach my children to love one another, and when they err, I take them apart and kindly tell them of their fault — do not attempt to disgrace and degrade them in the presence of the fam- ily. Thus, I hope, they learn to regard their father as a friend in whom they may confide — an adviser on whom they can rely, and his house a refuge and a home, in all their childish sorrows. " Even if we go back to Greece — that glorious old republic, whose light will continue to shine through the historic page, to the latest ages of time — we shall find that this brutal practice, this relic of bar- barianism, was ignored in their schools. Chastisement was then believed, as it really is, the father's prerogative. As so many inci- dents on this subject have been related by the gentlemen, perhaps I may be permitted to allude to one. Plutarch, in his celebrated 'Lives of Distinguished Men,' tells us of one of his tutors named Amoneus, who, when one of the boys under his charge had done something wrong, took his own son and whipped him in their pres- ence, to reprove them, and to show what he would have done, had the laws of his country allowed it. "The brave seamen of our navy were once scourged for every trivial offense; but Congress has abolished the barbarous practice, as debasing and degrading to the character of a free man. In the British navy the same is true; and throughout this whole country there is a settled sentiment against this punishment." He cited the following cases:' ' In the Jefferson Circuit, a few years ago, Coon was tried for the murder of Shaeffer. The latter had insulted Coon's wife, and Coon went to obtain redress. He told Shaeffer of the insult, whereupon he raised his arm, as Coon thought, to strike him, though it after- wards appeared that his hand only contained a small piece of wood. Coon then plunged a file into him, and it immediately proved fatal, yet the jury sustained his conduct. The case of Owen, charged with the murder of Haire, caused so much excitement in Louisville, a few years ago, that it was neces- MATT. WARD CASE. 25 Bary to obtain a change of venue to secure a fair trial. The parties slept in the same bed; in the morning Haire missed some money, and accused Owen of taking it. Owen asked an explanation; it was refused, and he prepared himself with a pistol before they met again. Haire, I believe, also had a pistol, but Owen shot him; and. was acquitted on the ground that he had a right to obtain redress for the injury done his character. The gentleman has given you a Scriptural illustration, comparing himself to David, who, as he tells you, went out to fight against the Philistines, armed only with a shepherd's sling and seven smooth stones. Now we, I presume, according to his comparison, are the Philistines; but the gentleman seem to be rather unfortunate in his Biblical recollections. He must remember it was against Goli- ath that young David went; and that it was Samson who fought with the Philistines, slaying three thousand of them in one day, and that, too, with the jaw-bone of an ass. And I can only express a devout hope that I am not to meet with a similar melancholy fate, and be ruthlessly slaughtered here, by the same dangerous weapon ! (Prolonged laughter.) Having the jury at his will, he read them two beautiful passages: " I stand upon the summit of Mount Sinai. What endless food for memory and association in the thought! To trace the course of Moses up to the sacred mountain — to visit the scene where oui Lord deigned to hold converse with his servant — to feel yourself on Mount Sinai, upon which rests all that is earliest learned in childhood, and most dearly prized by man, is worth a lifetime's weary pilgrimage. I forgot fatigue, anxiety, and all the weariness of the desert. I could only remember that I was upon Mount Sinai. Go there, if you would feel as your never felt before. Go read, as I have done, the decalogue upon the very spot where Moses received it from the hands of the Almighty. Enter the cleft in the rock into which Moses fled as the glory of the Lord passed by. Remember that fearfully sublime scene, when there were thunderings ar/d lightnings and a thick cloud upon the mount; when Moses brought forth the people out of the camp to meet with God, and the Lord descended upon the smoking mountain in fire; when the voice of a trumpet sounded long, and waxed louder and louder as Moses spake, and God answered him with a voice — and tell me if the memory treasures another emotion like this. " I have wandered with delight over the battle-field of TVagram, where Napoleon brought to his feet the most powerful monarch of 26 MODERN JURY TRIALS. the world. Leipsic had a melancholy charm for me, as the spot where Fortune united with allied Europe to put down her petted favorite. I felt a deep interest in gazing upon the plain of Water- loo, where that gigantic power expired, which had toppled kings from their thrones and made emperors tremble. These, thrillingly interesting as they were, are but scenes in the destiny of a man. Great as he was, he was but mortal. But Mount Sinai is hallowed by the presence of God himself — it is the first scene connected with the salvation of man through the intervention of his Maker." Permit me, gentlemen, to read you, in conclusion, an extract from a letter written from that scene of the deepest interest to man the world has ever known — the Mount of Calvary: "A man's deep emotions on visiting the church of the Holy Sepulchre are chilled, not smothered, by the glare and glitter of the tasteless ornaments and images that load the hallowed spots within. I turned at once to Calvary, and mounted the steps where our fainting Saviour toiled up the rocky hill, when, turning to the women that bewailed and lamented him, he said, in mournful for- getfulness of his own sufferings, ' Daughters of Jerusalem, weep not for me, but weep for yourselves and for your children! ' I stood upon the spot where our Lord was nailed to the cross — the rock in which the cross was planted was before me; and amidst the gloom and silence of the dimly-lighted chapel I could almost imagine the fearful scene of the crucifixion, when 'the sun was darkened, and the veil of the temple rent in the midst.' I could almost see the two malefactors that were crucified with him, 'on either side one, and Jesus in the midst.' I could hear the hootings and revilings of the enraged multitude, and that beautiful senti- ment of forgiving meekness — 'Father, forgive them; they know not what they do.' I could see the crowds of women that had fol- lowed him from Galilee, 'beholding afar off,' and witness the fierce determination of the soldiers. I could hear that cry of mortal agony — 'My God ! my God ! why hast thou forsaken me?' And all was over. What could be more impressive than such recollec- tions in such a place ? "My heart was softened even to weakness, and I could almost have wept; for that religious fervor, which even the most worldly may feel on Calvary, was blended in my heart with the feeling of earth most akin to heaven — a son's devotion to his mother. The Bible, from which I read the mournful story of the cross and pas- sion, was her parting gift. It flooded my heart with hallowed associations — ■thoughts of her and of heaven were blended in my MATT. WARD CASE. 27 soul, and purified each other. It recalled the never-to-be-forgotten instruction of my early childhood, when, leaning upon her lap, I heard from her loved lips explanations of the holy events of which I now read, upon the very spot where they occurred. It recalled the recollections of later days, when, side by side, we sat in the vil- lage church — the exquisite music of those simple hymns, that we sang from the same book, seemed again to swell upon my ears, and I was a child in feeling once more. And, whatever may have been my course since, those early impressions of piety have never been effaced, and the religious associations connected with those blissful days of innocence I now found had not died, but only slumbered, and but required a sacred spot like this to start into life, linked with a mother's holy name." Gentlemen, it is impossible that a heart like that of the prisoner, depicted in these lines, is capable of entertaining malice. His devo- tion to his fellow men, his devotion to his mother, his devotion to his God, all, all forbid the idea that he is capable of entertaining malice against any human creature. The act with which he is charged was the result of dire necessity, it was not an act of will- fulness. Gentlemen, the fate of my client will soon be committed to your hands. What a responsibility will then rest upon you! Life or death is involved in the issue! What inexpressible joy a verdict for life will bring with it! This beautiful world will to him, as well as to those who are bound to him by such tender ties, present scenes of happiness and gladness. But oh, what. gloom, what sad- ness, what misery would a verdict of death bring with it ! That young and beautiful wife, the partner of his former joys, the par- ticipator of his woes, to know that her husband is to be assigned to an ignominious grave ! That mother, whose life has been a life of devotion to him, to have her heart riven by sorrow that can never be subdued — that family and wide and extended circle of friends, of which he is the rose and pride, to be crushed down for ever ! — I cannot anticipate such a result. The evidence will not warrant such a verdict, and such an one will not, can not, be ren- dered by you. The achievements of this young man in the field of literature are part and parcel of the greatness of Kentucky. The emanations of his mind have added fresh glory to the history of our State, which the patriotic devotion of his ancestry had already rendered so illus- trious. I leave him with you. I have done. 28 MODERN JURY TRIALS. Here followed a long and excellent argument of Governor Critten- den, m a chaste and dignified analysis of the case from end to end. His exordium was graphic and effective on the right of trial by jury, the solemnity of the occasion, and impressive on the leading circumstances. He was convincing in his logic, clear in conclu- sions, and powerful in his appeals. [John J. Crittenden was horn in 1789, and died in 1803. He filled, during his eventful life, the positions of Congressman, Gov- ernor, Attorney-General of the United States under Harrison and Fillmore, was United States Senator, appointed United States Supreme Justice by President Adams, a soldier in the war of 1812; above the medium height, erect, muscular, dignified, with genial and attractive manners; the most successful advocate in Kentucky, a fine lawyer, and a rare judge of men; of superb courage and tem- per and the highest personal honor. His art was persuasiveness. He won his cases by his candor, character, fairness and deferential obedience to the rights of others. He spoke as a gentleman to gen- tlemen, and never used harsh things to harrow the feelings of a jury. He understood mankind. He was clear. He aimed to be candid and to be comprehended. He could bring tears to his own eyes or his auditors', but they were heart-felt, earnest and honest expressions of his belief. He won his cases fairly.] Here is a passage of his on self-defense: But where a man in sudden affray is beaten or assaulted in such a manner as to peril his life, or place him in danger of great bodily harm, when there is no other way of escape, he has a right to kill his adversary, and the law calls it justifiable homicide — killing in self-defense. The law is very tender of human life, and, therefore, homicide, even in self-defense, is spoken of by the English authori- ties as " excusable rather than justifiable." And thus the definition of it given by Lord Bacon is, "A blamable necessity." Yet though blamable, it is a necessity, and it excuses and acquits the party. It is described as "that whereby in a sudden broil, or quarrel, a man may protect himself from assaults or the like, by killing the one who assaults him." But it must not be used as a cloak for a revengeful and wicked heart, for we are explicitly told that we may " not exercise it, but in cases where swdden and violent suffering would be caused by waiting for the intervention of the law." * * * After an exhaustive speech to the jury, he concludes: MATT. WARD CASE. 29 In examining these facts, may not one judge of them more kindly, and hence ascribe better motives than another? The consideration of the facts and the causes that produced them, is the proper place for mercy to be applied. The law says the murderer shall be pun- ished; but it is your province to ascertain what constitutes the mur- derer. You have a solemn duty to perform, and I want you to perform it. I want you to perform it like men — like honest men. I ask your sober judgment on the case, but it is right for that judgment to be tampered with mercy. It is according to the principles of law, one of whose maxims tells you " it were better for one hun- dred guilty men to escape than for an innocent one to be punished." Is not here your commission for mercy ? It is alike your honest minds and your warm hearts that constitute you the glorious trib- unal you are — that make this jury of peers one of the noblest institutions of our country and our age. But the gentlemen would make you a set of legal logicians — calculators, who are to come to your conclusion by the same steps a shop-keeper takes to ascertain the quantity of coffee he has sold by the pound. That may be a jury in name, but it is in nothing else. But I wish to call your attention to another fact that figures in this case. Mr. Carpenter, with more adroitness than Mr. Gibson, but with less scrupulousness, has attempted to create a prejudice against this prisoner, by speaking of his family as aristocratic — as believing themselves better than ordinary mortals. I suppose I feel no personal offense at this, for I have always belonged to that class usually called "'poor men." But, in this country, no man can be above a freeman, and we are truthfully told that "poor and content is rich enough." * * * In conclusion, gentlemen, I beg leave to call your attention to an important consideration, bearing on the whole case, and affording a key, I think, to the heart of this young man. I allude to his gen- eral character and disposition through life. I need not recall your attention to what we have shown it; it is all perfect in your recol- lection. I have no occasion to exaggerate; he has shown, in the clearest and most conclusive manner, a character of which you or I, or any man living, might be proud. As in boyhood, so in man- hood. His riper years only exhibited to the world the amiable and lovely and genial traits of the boy, more illustriously developed in the man. I am one of those who believe in blood, and in consistency of character. Show me a man that for twenty or thirty years has 30 MODERN JURY TRIALS. been kind and honest and faithful in all the relations of life, and it will require a great deal of evidence to induce me to believe him guilty in any instance of a gross and outrageous wrong. You have seen the character of this man, from his earliest boyhood — so kind so gentle, so amiable — -ever the same, at school and at college, in the city or in the country, among friends or strangers, at home or in foreign lands. There was no affected superiority. You see how many mechanics and artisans have been his constant associates and friends. With health impaired, and with literary habits — never seen in drinking saloons or gaming houses — his associations with men of all classes — he has ever been the same mild, frank and unoffending gentleman, respecting the rights of others and only maintaining his own. This is the man you are called upon to con- vict. His act was an unfortunate one, but it was one he was com- pelled to do. And though he has been misrepresented and reviled and wronged, I trust it will be your happy privilege, by a verdict of acquittal, to vindicate his character in the eyes of all good men, and restore him to that family whose peace, happiness and honor are at stake on your verdict. Your decision must cover them with sorrow and shame, or restore them to happiness that shall send up to Heaven, on your behalf, the warmest gratitude of full and over- flowing hearts. Gentlemen, my task is done; the decision of this case — the fate of this prisoner, is in your hands. Guilty or innocent — life or death — whether the captive shall joyfully go free, or be consigned to a disgraceful and ignominious death — all depend on two words from you. Is there any thing in this world more like Omnipo- tence, more like the power of the Eternal, than that you now possess ? Yes, you are to decide; and as I leave the case with you, I implore you to consider it well and mercifully before you pro- nounce a verdict of guilty — a verdict which is to cut asunder all the tender cords that bind heart to heart, and to consign this young man, in the flower of his days and in the midst of his hopes, to shame and to death. Such a verdict must often come up in your recollections — must live forever in your minds. And in after days, when the wild voice of clamor that now fills the air, is hushed — when memory shall review this busy scene, should her accusing voice tell you you have dealt hardly with a brother's life — that you have sent him to death, when you have a doubt, whether it is not your duty to restore him to life. Ch, what a moment that must be — how like a cancer; will that remem- brance prey upon your hearts ! MATT. WARD CASE. 31 But if, on the other hand, having rendered a contrary verdict, you feel that there should have been a conviction, that sentiment will be easily satisfied. You will say: "If I erred, it was on the side of mercy; thank God, I incurred no hazard by condemning a man I thought innocent! " How different the memory from that which may come in any calm moment, by day or by night, knock- ing at the door of your hearts, and reminding you that in a case where you were doubtful, by your verdict, you sent an innocent man to disgrace and to death. Oh, gentlemen, pronounce no such verdict, I beseech you, but on the most certain, clear and solid grounds. If you err, for your own sake, as well as his, keep on the side of humanity, and save him from so dishonorable a fate — preserve yourselves from so bitter a memory. It will not do then to plead to your consciences any sub- tle technicalities and nice logic — such cunning of the mind will never satisfy the heart of an honest man. The case must be one that speaks for itself — that requires no reasoning — that without argument appeals to the understanding and strikes conviction into the very heart. Unless it does this, you abuse yourselves — abuse your consciences, and irrevocably wrong your fellow man, by pro- nouncing him guilty. It is life- — it is blood with which you are to deal; and beware that you peril not your own peace! I am no advocate, gentlemen, of any criminal licentiousness — I desire that society might be protected, that the laws of my country may be obeyed or enforced. Any other state of things I should deplore; but I have examined this case, I think, carefully and calmly; I see much to regret — much that I wish had never hap- pened — but I see no evil intentions and motives — no wicked malignity, and, therefore, no murder — no felony. There is another consideration of which we should not be unmind- ful. We are all conscious of the infirmities of our nature — we are all subject to them. The law makes an allowance for such infirmi- ties. The Author of our being has been pleased to fashion us out of great and mighty elements, which make us but a little lower than the angels; but he has mingled in our composition weakness and passions. Will he punish us for frailties which nature has stamped upon us, or for their necessary results ? The distinction between these, and acts that proceed from a wicked and malignant heart, is founded on eternal justice; and in the words of the Psalmist, "He knoweth our frame — He remembereth that we are dust." Shall not the rule He has established be good enough for us to judge by? Gentlemen, the case is closed. Again I ask you to consider it well, before you pronounce a verdict which shall consign this pris- 32 MODERN JURY TRIALS. oner to a grave of ignominy and dishonor. These are no idle words you have heard so often. This is your fellow citizen — a youth of promise — the rose of his family — the possessor of all kind and vir- tuous and manly qualities. It is the blood of a Kentuokian you are called upon to shed. The blood that flows in his veins has come down from those noble pioneers who laid the foundations for the greatness and glory of our State — it is the blood of a race who have never spared it, when demanded by their country's cause. It is his fate you are to decide. I excite no poor, unmanly sympa- thy — I appeal to no low, grovelling spirit. He is a man — -you are men — and I only want that sympathy which man can give to man. I will not detain you longer. But you know, and it is right you should, the terrible suspense in which some of these hearts must beat, during your absence. It is proper for you to consider this, for in such a case all the feelings of the mind and heart should sit in council together. Your duty is yet to be done; perform it as you are ready to answer for it, here and hereafter. Perform it calmly and dispassionately, remembering that vengeance can give no satisfaction to any human being. But if you exercise it in this case, it will spread black midnight and despair over many aching hearts. May the God of all mercy be with you in your delibera- tions, assist you in the performance of your duty, and teach you to judge your fellow-being as you hope to "be judged hereafter. Counsel would have you tell the Judge of the quick and dead, when you stand at His tribunal, how manfully you performed your duty by sending your fellow man to the gallows ! He apprehends that it will go a great way to insure your acquittal there and your entrance to the regions of eternal bliss, if you are able to state that you regarded no extenuating plea — took no cognizance of the pas- sions and infirmities of our common nature — showed no mercy, but sternly pronounced his irrevocable doom. I understand that it would be more likely to send you in a contrary direction. I understand that a lack of all compassion during life will hardly be a recommendation there. I understand that your own plea will then be for mercy; none, we are taught, can find salvation without it — none can be saved on their merits. I have somewhere heard or read a story from one of those tran- scendent German writers, which tells us that when the Almighty designed to create man, the various angels of his attributes came in their order before Him and spoke of his purpose. Truth said: " Create him not, Father. He will deny the right — deny his obli- gations to Thee — and deny the sacred and inviolate truth — create MATT. WARD CASE. 33 him not." Justice, said: "Create him not, Father. He will fill the world with injustice and wrong — he will desecrate Thy holy temple — do deeds of violence and blood, and in the very first gene- ration he will wantonly slay his brother — therefore, create him not." But gentle Mercy knelt by the throne and whispered: " Create him, Father. I will be with him in all his wanderings — I will follow his wayward steps — and by the lessons he shall learn from the experience of his own errors, I will bring him back to Thee." "And thus teach, O man, mercy to thy fellow man, if thou wouldst bring him back to thee and to God." Mr. Allen, in closing for the People, said: My experience in criminal trials, perhaps, has been considerably ' extended for a man of my age; but I can honestly say that I have never seen a jury in any case manifest such patient attention, and exhibit so little levity and carelessness as you have done. It indi- cates, to my mind, that you appreciate fully the position both of the State and the prisoner at the bar; and that while you receive so readily the great lights which have shone upon the case, you will not reject the feeble glimmer of the one that is yet to come, and which, to the best of my ability, shall only be thrown upon the law and the testimony. It is the duty of the Commonwealth to take upon herself the whole burden of establishing his guilt, and it is your duty, gentle- men, to construe all reasonable doubts in his favor. You have heard this principle laid down in the vague and general terms of " all doubts;" but had the gentlemen read a little further from the old Irish authority he quoted, in the very next sentence he would have found it qualified so as to read " all reasonable doubts." It is impossible that juries should act on positive certainties. All information you can obtain in regard to the commission of any crime, upon which you are to decide, must be from those who wit- nessed it; and if one hundred men will swear positively to the same fact, you must even then have some doubt. It is true, you may believe it, and will then have good reason to do so; but the very term belief always implies doubt; knowledge — that no doubt exists. But if, in this case or in any other case, we prove the facts claimed, by good and competent witnesses, it is your duty to convict, even though some doubt may exist, fx>r it cannot come within the bounds of a reasonable doubt. Governor Helm set out with the proposition that a man with as good character as the defendant, cannot have had the wicked and depraved heart that is necessary to the commission of a murder. I 3 34 MODERN JURY TRIALS. wish to argue this ease with fairness and candor; and I admit freely that I never in my life heard a better character proved, and I never expect to. But the human heart — who can know it ? We are told by the volume of inspiration that it is " deceitful above all things and desperately wicked." And however good the character of this accused may be, that fact alone cannot overbalance the clear and conclusive testimony of the case. Character is only to be taken into consideration, for the benefit of a prisoner, in doubtful cases, where the mind of the juror is otherwise left in uncertainty by conflicting or imperfect testimony. One of my associates has alluded to the great case of Webster When on trial he proved a good character — nearly as good as that shown by the prisoner at the bar. He proved it by ministers of the gospel as well as ministers of the law — and by men of almost «very calling and position in life. Yet he was convicted; and before his execution he fully confessed, not only that he committed the murder to escape the payment of a small sum of money, but that, after he had done the deed, he deliberately cut in pieces the body of his victim, and burned it! It is called the Code of Honor; and the worst feature of this bloody code is, that it constitutes every man the judge and avenger of his own wrongs. It was this principle that actuated the accused — this motive that caused the awful deed. It was this that induced him, when, as he thought, a member of his family had been insulted, to go and disgrace the teacher, or take his own redress. And, as I have already shown, the insult was only a fancied one; it is the duty of the teacher, when the boy is guilty of any crime, to punish him for it and inform him of it. It is just as necessary for boys to be punished when they do wrong, as for men, when they do. "But," says Governor Helm, "he took the smallest pistol in the whole store — a mere pop-gun — therefore he could not have intended to take life." But you must remember that the size of the weapon only rendered it the more easily concealed — that it was a self- cocking pistol — perfectly adapted to a close fight. And Mr. Gill- more, who sold it, informs you that this " pop-gun," as the gentle- man calls it, would send a ball through an inch plank! Does this, or does the result which it produced in the fatal occurrence, indi- cate that it was not a deadly weapon. They say, gentlemen, that the right of self-defense is a sacred one — that it has been conferred upon us by our nature and our Creator, and cannot be taken away by human legislation. I cordi- ally agree with them, that the right is a high — a holy — an inestim- TRIAL OF MARY HARRIS. 35 able one. I believe that all should enjoy it and be protected in it. But you should be very careful not to permit men, under the color of self-defense, to commit an outrage — to take measures that must call out an attack — and then, to kill their adversary. I regard this right as highly as any man who has lauded it in your presence; but, gentlemen, as you hold it dear — as you would preserve it sacred and inviolate — beware that you do not suffer it to be trifled with. Mr. Wolfe puts a strong case to yon. He asks, if a man has slandered your family, in a peculiar and most aggravated manner, if you have not a right, under the laws of this land, to go to him, and revile him and curse him; and, then, if he attempts to chastise you for it, to shoot him? I promptly answer, No. If he slander you, the law gives you your remedy, by an action for slander, and does not authorize you to become the judge of your own wrongs. If he slander your family, the same is still true. The law recog- nizes no right to exercise violence on the part of the citizen, except in case of self-defense. The remarks of Mr. Allen were continued at length in this man- mer, and are both effective and candid. The Court gave a brief and impartial charge to the jury, who promptly returned with a verdict of " JVbt Guilty." At the announcement of the verdict great emotion was manifested, joy mingled with tears and hand- shaking, and a prompt motion for the discharge of Robert Ward, which was granted, and dispatches wired to the New York Herald and the leading Southern papers. Trial of Mary Harris. Held July, 1865, at Washington, D. O. This is one of the most romantic of the celebrated jury trials in this country; interesting alike to laymen and lawyers throughout the United States. The story, as detailed by a large number of witnesses, the character of the parties and their relations lead- ing to the final tragedy, and famous trial, can be best furnished through a rather lengthy but truly elaborate and exhaustive hypo- thetical question, which is a terse statement of facts, and the able 36 MODERN JURY TRIALS. and eloquent arguments of counsel, which give the facts a unique and appropriate shading. The case was remarkable for its location, the large number of distinguished visitors to the accused while in prison, the " White House bouquet," the singular evidence of a leading counsel sworn for Miss Harris, and lastly, the effect of the impassioned appeal to the jury for mercy, seldom equalled in any argument. The candid, convincing manner of Mr. Bradley, the able and exhaust- ive logic of Judge Hughes, the caustic remarks of Mr. Carrington, are all commendable; but the speech of Mr. Voorhees was elo- quent. The closing argument for the defense by the Senator from Indiana, created a profound sensation; holding the closest attention of all in the crowded court room — filled with distin- guished visitors — for two hours, nearly all of which time many in the audience were moved to tears; ladies fainted; strong men wept like children; others leaned forward to catch the slightest syllable, and hung spell-bound upon the speaker's words. Personally, Mr. Voorhees is tall, erect, strong, florid faced, with light hair, dark eyes, highly rhetorical in style, often vehement and powerful in voice and gesture, at times reaching to a pathetic and touching delivery. His large form and general bearing give him a commanding and distinguished appearance. He wins by power, pathos and sympathy. There are times, in his loftiest flights, that his hearers will shudder and turn pale; but in this trial he grew tender and pathetic, and often persuasive. It was an ideal opportunity. The picture of a frail young girl, fair and affectionate, who was herself an appeal more eloquent than coun- sel's words. The ingenious allusion to the little bouquet that Mrs. Lincoln had sent to the prison cell from the White House was handled with graceful skill by the artful advocate. Nothing was lacking to give to the scene all the interest and attraction of a splendid tragedy — a scene to be remembered for a lifetime. Mr. Voorhees has the requisites of a western orator: Earnestness of manner, point and vigor of speech, a rapid, sparkling stream of overflowing language, both thrilling and pleasing, moving and magnetic — few men possess such gifts of forensic eloquence. The much-abused plea of emotional insanity was then in its infancy. The Cole-Hiscock and the Sickles cases had been won by it; but the public had not wearied of this singular defense. It has since grown more in public disfavor. But by it, hundreds are cleared. The public reasons from guesses; science often reasons otherwise. In a case like Mary Harris', the argument was apt and TRIAL OF MARY HARRIS. 37 effective. If ever a mind could be lost, there was occasion and room enough to argue a reasonable doubt. This case is reported at length, through the arguments of the learned counsel, as being peculiarly an example of how far the sur- rounding circumstances affect a jury's verdict. The admission of evidence is shown to be exceedingly liberal, the testimony of Mr.' Bradley, a prominent counsel for the defense; the reference to dis- tinguished visitors at the jail; the broad scope of insanity reaching back to years of corresjiondence; the management of witnesses — dropping a bad one, and crowding a willing enemy with curious questions — all show skill and ingenuity of counsel. But the climax of the case is the eloquent appeal of Senator Voorhees. Nothing more beautiful in legal literature can be read than many portions of his pathetic and eloquent picture of the growth of a pure girl's first affection, confidence and love. When the orator says: "He had carried her to the highest pinnacle of happiness and hope, she stood upon the summit of a glorious expec- tation; and all around her sunshine and gladness! " and when he added her own words of pathos: "O, Mr. Bradley, you should have seen me then! You should have seen me then; I was so happy ! " scores broke out in sobs and tears. By using every art — forgetting not one single touching thought — the orator swayed his hearers like forest limbs in the wind, until he came to those magic words: " In the name of Him who shoicers his blessings on the merciful, who gave the promise to those who feed and clothe the hungry strangers at their gates : UnlocJc the door — unlock the prison door, and bid her bathe her throbbing brow once more in the healing air of liberty /" From that moment, such a spell came over all that they felt her freedom in the air. This statement by counsel to experts embraces a graphic history of Mary Harris : A little girl not more than ten or eleven years of age — still in the dress of children of that age — attracts the attention of a man almost old enough to be her father. She had very. few advantages of mental or moral culture. He is an educated man, experienced in the business and affairs of life. They are thrown into daily association, he being engaged in mercantile business, and she, the little girl, in a millinery and fancy store, convenient to his place of business. He plays with her as a child; she sits on his knee and receives and returns his caresses. Two years or more pass by, during which this intimacy continues between them, he being the trusted friend of the lady by whom she is employed, and is daily 38 MODERN JURY TRIALS. at the store. He fails in business, and then comes to keep and post the books of the little girl's employer. lie has a difficulty in the church of which he was a member, and is expelled, and goes to this child, just budding into womanhood, for relief and sympathy. She believes him to be good — good to her, at least — but persecuted and reviled by the world. He is a Baptist; she a Roman Catholic. She now forms new associations. Prepared by his culture and instruction, she is admitted into the best and most refined and cul- tivated society of the city in which she lived. He leaves that city to seek employment elsewhere, and opens a correspondence with her, which he cautions her to conceal from her employer. She is eminently open and truthful, yet at his bidding does conceal the correspondence. Her parents discover that this correspondence is going on. Her father is enraged Her friend's visits then are pro- hibited. She counsels with one of the most intelligent and culti- vated ladies, of ripe years, and having daughters of the age of the patient, and that lady consents to permit them to meet at her house. He is now" the declared lover of the patient. Step by step, inti- macy between her and this lover had ripened into esteem, regard, and on her part the full confiding love of a woman who trusted everything to the man she loved; and she is formed, moulded, trained by his plastic hand in her habitudes of thought, morals, and manners. She is absorbed into, and in all things controlled by him. She yields him her homage; they are engaged to be married. He keeps her constantly advised of his plans and schemes. Fortune frowns on his efforts and he is too poor to marry. He prevails on her to leave her father's house and come to him in a distant city and seek employment there, in order that she may be near him; and she yields. Shortly after she returns to her home. Again he prevails upon her to leave the parental roof and come to him, and she does so. Her nervous organization is fine and delicate; her mental facul- ties largely and well developed; her sense of female pride acute and strong. She is pure and virtuous, and continues so to this day. Her bodily health is remarkably good. She has more than ordinary flesh; a fine, pure complexion, and good vision. Her temperament is full of life and spirit, and her life happy, joyous and gleeful. She has few associates, and those principally married ladies, or those older than herself. Her chiefest pleasure is her correspond- ence with him. Thus nearly five years are passed. In the mean- while three different times had been assigned for their marriage, and as often it had been deferred by reason of his want of means or employment. TRIAL OF MARY HARRIS. 39 He is about to leave the city where he is residing to come to Washington in search of employment. Their correspondence had begun November 1, 1858, and continued down to the spring of 1863. When he is thus about to leave her, the last seen of them together at the time, she was sitting on his knee, and he playing with her curls. Six months elapse. In the meanwhile he has succeeded in obtain- ing employment in one of the public offices here. She lives on in happy hope, and the summer passes without a ripple on her sum- mer's sea. He left his home in March. On the seventh of August, 1863, she received a letter from him, asking where he could see her. He had an interview with her, during the greater part-of which he held her hand. What passed between them is not known, for no one heard what was said; but they seemed to part as ever — friends. On the eighth of September following she received another letter, which she believed was written by him; and, on the fourteenth, a second, both begging her to meet him at a house of ill-fame. She inquired, and received clear proof that these letters, though written in a dis- guised hand, were written by him. On being convinced of tiiis fact, she was greatly distressed, and became wild in her excitement. A few days after this she discovered that four days after the receipt of the first of these letters, and one day after the receipt of the second, he was married to another lady in the town where the patient resided. Within less than a week after this discovery, on the first return of the period mentioned in the hypothetical case put by the prosecuting attorney, she was so sick as to require the attendance of a physician. A skillful physician was called, and he treated her for the physical disease, but knew nothing of her per- sonal history, nor did he witness any mental disturbance. The sickness lasted but a few days, but her spirits were gone, her health was broken. She became silent, moody, melancholy; her flesh and strength wasted; her nights were spent in sleeplessness and tears. She went about her daily duties as usual, but with a broken spirit. Thus passed on two or more periods. At last her physician direc- ted that she should lie in bed till after she had had her breakfast. She then slept, as she had from the first of May, 1863, in the same bed with the lady in whose employment she lived as clerk, and in the same chamber with that lady's sister. There was a vacant chamber adjoining, in which there was no fire, and, against their remonstrances, she would get up from that warm bed and chamber, in the inclement climate of Chicago, in mid-winter, and go into that adjoining chamber in her nightclothes only, and sleep on the 40 MODERN JURY TRIALS. bare floor. During one of these periodical sicknesses, while the patient is still under medical treatment and required by her physi- cian to keep her bed till after breakfast, in the winter time, in the high northern latitude of Chicago, and while she is occupying the same bed with the elder of the two ladies with whom she lived, she stealthily got up from the bed — leaving the other, as she supposed, asleep — softly dressed herself, and approached the bedside of her friend, and, believing she was still asleep, said, in a low tone, " I must leave you." The friend threw her arms around her neck and said: "Why, where are you going?" She answered, "I wanted to take a walk on the lake shore." It was then but the gray of the morning; not quite day. The friend restrained her forcibly, and prevailed upon her to undress and go to bed. Again, at another of the periods of her sickness, she was sitting at table with her two friends, her employers, between whom and herself there existed the most intimate relations of true and warm friendship and regard; the patient was sitting nearest the younger of her two friends, to whom, as nearer her own age, she always and undeviatingly showed warm affection, and with whom she had never quarreled; while thus sitting, the patient reached out toward this young friend, remarking, " Don't you want to read some fine letters ? " or letter. The friend recognized the handwriting of the man who had so long corresponded with the patient and had been engaged to marry her; and she was familiar with all the facts as" to the manner in which that engagement had been broken off, and the attempt made by him to get the patient into an assignation house. She had been with the patient at the time, and had never lost sight of her or been separated from her to this time; and seeing the let- ter in the handwriting of the same man, she replied, " No; I never want to see any of his writing, or any other such a fellow's; and I never wish to hear Burrough's name mentioned again as long as I live." In an instant the patient snatched up a carving knife and attacked her friend, who with difficulty made her escape, while the elder sister, a large and strong woman, restrained the patient, who is small and delicate, and was then wasted by sickness; and after a severe struggle of several minutes, succeeded in getting the knife from her. The sister, who had fled, returned after a while, and the patient then insisted upon and attempted to get out of the window and to go upon the street, and was forcibly restrained by the two sisters. The elder, then thinking relief to her mind would be quicker by yielding to her, at last opened the door, and let her go into the street. It was late in the afternoon. She also directed the younger sister to follow and keep the patient in sight, but not TRIAL OF MARY HARRIS. ,. 41 to approach her or let her see her. She did so, and saw her, after wandering around two or three blocks, stop a street car, advance to it, put her foot on the step, then turn away and walk quietly down the street. She followed her, and saw her enter the private, or ladies', entrance of the principal hotel in that city; then returned and reported to the elder sister. The two sisters then went for a gentleman, whose wife was a very warm friend of the patient, and who himself had much influence with her, and they three went to the hotel and endeavored to prevail upon the patient to return home. They failed and left, leaving that gentleman to look out for her. Night was approaching, and she came home alone, com- posed, and " clothed in her right mind." This attack, or exhibi- tion of violence, was the longest in duration that had then occurred. In another return of her periodical sickness, without cause or provocation of any kind, she struck the younger of the two sisters several repeated blows over the head with the window-brush — a heavy brush used to cleanse the store windows. At another time, during another sickness, she struck with a pin- cushion, that had a piece of brick in it to keep it in its place, a lady customer in the store, who had given her no sort of provoca- tion. At another time, whether during her periodical sickness or not does not appear, she purchased in Chicago a small-sized Sharpe's revolving pistol, with a case of cartridges, which she kept openly exposed in her trunk; and when asked by the elder of the sisters what she purchased that for, she replied, "Many ladies carry pis- tols;" and added her fear that the man who had deceived and deserted her, and his brother, had a plan to seize and carry her off, and she had this for her defense. She employed an attorney and counsel in Chicago to sue the man who had deserted and endeavored to entrap her. A writ was issued, but he could never be found. Her counsel urged and advised her to compromise. She refused, saying it was not money she sought, but the vindication of her character; that she had suf- fered in reputation, and desired to have that cleared up. She urged her counsel to come to Washington with her, and .sue him here. He declined; and declined because he says her love seemed to have been turned to hate by the effort to get her to that assignation house; and when she recurred to that, she became so excited that he thought it would be dangerous for her to meet him, while at all other times she was calm. She herself then came to Washington from Chicago, alone, and 42 MODERN JURY TRIALS. without a protector, to institute a suit here. She visited the department where he was employed, and learned that he had that day gone with his wife to Chicago. She took the return train and travelled without stopping, and when she reached Chicago found that his wife had arrived there, but he had not. The two sisters removed from Chicago to Janesville, Wisconsin. She accompanied them. But change of scene, while it relieved and diminished the periodical exhibitions of a disturbed mind, did not cure it. Her life was the same; a brooding melancholy pervaded it. She performed all her duties as clerk and saleswoman, but she shunned society, and her spirits were gone; and periodically, some- times not every month, but in two months at furthest, these exhi- bitions were, revived, Isut with less violence, until the latter part of December, 1864, when, while sitting with the two sisters, and a third sister who had been at work making an expensive patch-work silk quilt, she seized the quilt and began to cut and tear and destroy it. It required great force to get it from her, and she was taken to her chamber and securely fastened'in. Prior to that, the elder sister, in hope that it would bring relief to her, had consented to furnish her with money to come to Washington, in order to insti- tute a s"uit here for breach of promise. On the first of January, 1865, she left for Washington, by the way of Baltimore, where the friends of the two sisters resided. She traveled alone. On reaching Baltimore she went to a respect- able boarding-house, where she was unwell with a bad cold, and was detained for three weeks, and then had her periodical sickness. On Saturday, the twenty-eighth of January, she communicated to a lady who occupied the same room with her, the history of her case. She had with her a large package of letters, which she said she had received from Burroughs. She told of his attempt to get her to that bad house. She read parts of the letters, extending, as she said, through five years. She stated that she was coming to Washington to see for herself whether he was here, before she con- sulted counsel; that she had attempted once before, and failed; that she had the name of a lawyer here whom she was to employ; that her sole object was to vindicate her fame and reputation, which had been injured by his desertion of her and his marriage with another. She spoke of him with tenderest regard, and said that until these last letters were written, he had been her best friend — more than a father to her; but his desertion had injured her reputation, and she intended to sue him only to vindicate her character. This lady lay awake until after two o'clock Saturday night; then *went to sleep, leaving the j>atient still talking, and TRIAL OF MART HARRIS. 43 reading and handling that bundle of letters. On Sunday night the same thing occurred, except that she was then arranging the pack- age of letters which she was to carry with her to put into the hands of counsel. Long after midnight she was thus engaged; her room- mate went to sleep, leaving her thus occupied. She had made an arrangement with this lady to return by the three o'clock or half- past four o'clock train, and accompany her to a lecture to be deliv- ered that evening by Henry Ward Beecher. The lady who kept the boarding-house was a party -to this arrangement, and procured for the patient a return ticket. In the morning the small Sharpe's pistol and a bundle of letters were lying on the bureau. She had shown the pistol to the lady who occupied the room with her, and made no concealment about it. "While making her preparations^ she was called suddenly by the keeper of the boarding-house and told she was late. She threw the bundle of letters into the trunk, and, instead of them, put the pistol into her pocket, and hurried down stairs; in company with the keeper of the boarding-house went down to the cars, and thence came to Washington alone. She went to the Treasury Department, inquired for and opened' the door of the room in which he was, and saw him distinctly. She was seen by at least one of the inmates of the room so distinctly as to enable her to identify her here in court, and who was so struck with her appearance at the time that she half arose to ask her to come in, when the patient closed the door. An hour or more after this, as the clerks were leaving the office, he came near, or passed her in the passage. She drew the pistol and fired. No one saw her fire, but there were three persons near by who saw her instantly after the shot was fired. The shot took effect on the deceased, who turned, saw her, exclaimed, " O my God!" and fled. She then cocked her pistol, leveled it in the direc- tion in which he fled, and when he was about twenty yards from her fired a second time, without effect, and he disappeared around a corner of the hall in which they were. She then turned and walked quietly down stairs and out of the building. She was very pale, very calm, very quiet, and there was a remarkable expression in the eye. She was arrested just outside of the building and taken back into it, and placed in a room with a policeman either at the door or in the room. By this time a justice of the peace had got to the room, and on his telling her he was a justice of the peace she immediately banded the pistol to him. Up to that time she had not shed a tear; she paced the room in violent agitation; tore her hair; knelt on the floor and sprang up; knelt to the justice and was raised by him more than once; her face was convulsed, but 44 MODERN JURY TRIALS. she shed no tear. Mr. McCullough, the present Secretary of the Treasury, came in and spoke to her. She asked if Burroughs was dead. He said he had often on the stage seen representations of mental agony, but he never witnessed the reality till then. She was still tearless. He fixed her attention for a moment and put two questions to her: one whether Burroughs had wronged her in any other way; the other whether she was a virtuous woman. She answered both rapidly, and relapsed instantly into the same excite- ment. To the latter question she replied, solemnly and clearly, "As God is my judge, I am." She was on her knees, clinging to his clothes. He raised her more than once. Her exclamations were, chiefly, "Why did I do it;" or, "how could I do it;" "I loved him better than my life;" "I would have died for him," etc., etc. The policeman was present during this interview. She was committed to jail, and he says that when on her way to the jail she told him that Burroughs had caused her to be driven from home and friends; that he had taken her to a bad house and had seduced her; that she had procured that pistol and came here to avenge the injury, and that she had done so. He understood that she said she had got the pistol just before she left home, and came directly here for that purpose. The policeman cautioned her against making any statements, yet she persisted in doing so. During the whole time she was greatly excited, and when they reached the jail she was so exhausted that she had to be supported by him and others into the jail. For days after her commitment she paced the room in violent agitation. By the latter part of February she had calmed down. Two friends, a gentleman and his wife, from her old home in Bur- lington — persons of education and large intelligence — came to see her, the lady passing the greater part of her time for a week in the prison. She was so changed they would not have known her had they not conversed with her. She was changed in appearance, mind, and manner. This was during her periodical sickness. In the latter part of March, during that condition her pulse was about 110, and her hands were cold. She spoke incoherently of the death of Burroughs. On its recurrence in April, as on the previous occasion, she showed great insensibility to cold. Her pulse was nearly 120; the back part of her head very warm, and her hands as cold as if they had been in water. When speaking of any matter connected with this charge, the pupil of the eye was so dilated as almost to cover the iris. At times the face was fixed, and the eye fixed on TRIAL OF MART HARRIS. 45 vacancy, as in, or similar to, cases of catalepsy. She did not believe Burroughs was dead; she said she saw him there; had frequently seen him in that chamber. She was with difficulty calmed down, and then she became cheerful. After a brief space the excitement returned; the pulse rose to near 120; the same condition of the face and eyes returned; she talked incoherently. This continued for half an hour or more, when she became composed. On the return of her sickness in May, the same physical condi- tion existed as in April, but in a much more excited form. Still greater mental disturbance was disclosed in her language and acts. She said she would not stay any longer in that prison; that she was going out; that bars could not restrain her. She exhibited great violence of manner. She fancied she heard dreadful cries and voices and shrieks. This occurred again in a less degree on the next day, and on the third and fourth days after that. Her con- versation and language on these occasions showed that she thought and spoke of Burroughs as then alive, and she spoke of him in terms of endearment. In June, at the periodical return, there were but slight changes from her normal condition. During the intervals the patient is entirely possessed of her faculties, but is generally very quiet, and oftentimes melancholy — with a temperament altogether changed from what it was up to the time of her disappointment in love. To the Doctor. Q. I will now ask you whether you think she has been, at any time up to this period, the subject of mental or moral insanity ? A. I have no hesitation in saying that, having reference simply to the hypothetical case so minutely detailed by the counsel, Mr. Bradley, that the person labored under a deranged intellect, paroxysmally deranged, produced by moral causes, and assisted or increased by a physical cause; derangement of the uterus. EXTRACTS OF EVIDENCE, SHOWING SKILL IN EXAMINATION AND MANAGEMENT OF TEIAL. Louisa Devlin, sworn: By Mr. Bradley. Q. State where you were residing in the spring of 1863? A. I was at Chicago. Q. AVere you engaged in business there, and if so, in what busi- ness ? A. I was engaged in the millinery and fancy business there. Q. State if you removed from Chicago at any time, and where you went ? A. I moved from Chicago in July, 1864, to Janesville, Wisconsin. 46 MODERN JURY TRIALS. Q. State if at any time you became acquainted with the defend- ant, and if so, when and where? A. I became acquainted with the defendant in March or April, 1863, in Chicago. Q. State if she ever came to reside with you, and the circum- stances under which she came ? A. She told me she had come to Chicago to look out for a situation. Q. Did she obtain one, and if so, with whom ? A. She did. I employed her the first of May, 1863, as a clerk. Q. State whether she has or not resided with you ever since, until her present visit to Washington ? A. Yes, sir; and she resided with me until she came on to Washington. Q. It is necessary, Miss Devlin, for the jury to understand the relations which subsisted between you. I will ask you whether she occupied the same chamber and the same bed with you ? A. Yes, sir; until she came here. Q. What was her position under you ? A. She was a clerk. Q. State what was the condition of the health of Miss Harris during the first five or six months; and after she came to live with you ? A. Her health was good. Q. State what was her temper and disposition during that time ? A. Her temper was good and her disposition also. Q. How as to her spirits ? State whether she was lively or melancholy ? A. She was very lively in disposition. Q. What did you observe in regard to her going into society? A. She went into no society whatever, except that that I was in, There were very few that we associated with. Q. Did you at any time, during the period that Miss Harris was living with you, see the deceased Mr. Burroughs ? A. I did. I saw the deceased twice at our boarding house, in March, 1863, where she boarded. Q. Was she boarding at the same house with you ? A. Yes, sir. I saw him, also, twice at my store during that summer. Q. State whom he came to visit at that boarding house, and to whom he paid his attentions ? A. The first time I heard him in the hall at the boarding honse, he asked for Miss Mary Harris; and when he came to my store he asked me for her. Q. Did you see them at any time during the interview between them ? A. Yes, sir; I saw them both during the interview at the boarding house, and in my store. j Q. Did you learn from him or her, when both were together at that time, whether he was paying his attentions to her or not ? A. I never had any conversation with them. TRIAL OF MART HARRIS. 47 Q. Did you at any time become aware of the fact that she received letters from him ? A. Yes, sir. Q. Did you ever see them ! A. Yes, sir. Q. Did you have an opportunity to read the letters, so as to become acquainted with his handwriting ? A. Yes, sir. , Q. State whether, after she had been residing with you some time, you observed any change in Miss Harris; and state about the time when you observed such change ? A. Well, the change was after the marriage of Burroughs, in September, 1863. Previous to that time the cheerfulness of character which I have described, and kindly disposition continued. Q. You observed no change in character before the time of which you speak? A. No, sir. Q. State as accurately as you can how that change established itself ? A. After the receipt of these anonymous letters, and feel- ing satisfied that it was Burroughs who wrote them, she became almost frantic, and at such times she would not know what she was doing or saying. During that night she commenced to cry, and continued crying almost incessantly for two or three days. Q. How long did she remain in that condition ! A. For many weeks. That is, continued so almost incessantly for two or three days, and then at intervals for two or tree weeks; sometimes every night, and sometimes two or three nights in a week. Q. Did she, during that time, continue to occupy the same bed with yourself ? A. Yes, sir. , Q. Do you recollect whether you called in the aid of any physi- cian at that time, and if so, who ? A. I did about a month after that time — Dr. Fitch, of Chicago. Q. Up to the time you thus called in Dr. Fitch, had you noticed anything in regard to her sleep — whether she slept soundly or not? A. She slept but very little. Q. State whether, after Dr. Fitch had been called in, and during the winter of '63-64, you remember any remarkable incidents in her conduct; and if so, repeat them as far as you can? A. When Dr. Fitch prescribed for her, one of his prescriptions was, that she was to sleep long in the morning. Q. Before or after breakfast ? A. After. Q. She was to have her breakfast in bed ? A. Yes, sir. One morning, when I had scarcely perceived it was daylight, I saw her dressing. I said nothing; and supposing me to be asleep, after she was dressed she came to the bed, and leaning over me, said: "I have to leave you, but I am sorry to have to leave you." I put out my hands and caught her around the neck, and asked her what she 48 MODERN JURY TRIALS. was going to do. She would not tell me. I insisting on knowing, she then said she was going to have a walk on the lake shore. Q. Was she quiet in her manner at that time ? A. She was rather insensible. She looked to me as if she did not know what she was doing or saying. When I caught her around the neck, I thought she was going to run out of the room. I then got her to undress herself and get into bed. Q. Do you now recollect what period of the year that was ? A. It was in November. Q. After that, do you recollect anything remarkable in her con- duct that happened during the same winter ? A. Shortly after, she went into the yard one day with a large window brush, and struck my sister two or three times over the head, without any provocation whatever from her. Q. Do you remember any other incident during that winter ! A. Yes, sir. She was not feeling very well one evening, and she called me to the bedside, and held me by the wrists. I begged her several times to let me go; but no; she held me tighter, seeming to have more strength than usual. She held me for about a quar- ter of an hour. That she did several times. Q. Do you remember any other incident during that year, and before you went to Janesville ? A. I remember of many instances where she commenced to tear up books, clothing, and anything that she could lay her hands on. At another time she ran at my sister with a carving-knife, to stick her. That was the second Sun- day in January, 1864. Q. Do you know what had passed between them just before then, and what was the subject of conversation ? A. No, sir. We were at dinner, and without anything being said that could at all offend her, she got up and ran at her with a knife, to stick her. Q. You did not hear your sister make any remark to her yourself, before this attack with the carving knife ? A. No, sir. My sister often told me that she was crazy. Q. How did you manage to prevent her striking your sister with the carving knife ? A. I held her by the shoulders. Then she tried to leap out of the window into the street. I had to open the door and let her go, but sent my sister out to watch where she went. She at first ran around the street, not apparently knowing where to go, but at last went into the Tremont House. I went and tried to get her home, but she would not come. It was then near dark; and when it got dark she came home by herself. Q. Was that the evening you got Mr. O. H. Harris to go after her? A. Yes, sir. TRIAL OF MARY HARRIS. 49 Q. He is no relation of hers, as I understand? A. No, sir. Q. Do you know of any subsequent instances of excitement, before you went to Janesville? A. Yes, sir; many. One little instance that happened at Janesville, some eight or ten days before she came down to Washington, I remember particularly. : Q. That was last December, then ? A. Yes, sir. My sister (not Jane, but another sister), having opened a handsome silk quilt that she was piecing, to show it to us, Miss Harris looked down at it, then took hold of it, and commenced tearing it. Q. Describe what kind of a quilt this was. A. It was a fancy silk quilt, pieced, Q. What did she say when she took hold of it ? A. She did not say anything. She seldom ever spoke when she was in those excited ways. Q. How was she prevented from tearing that quilt to pieces ? A. I took it from, her, and then succeeded in getting her into her room, when she halloaed repeatedly, " Let me out, until I spread all the preserves in the house over the carpets." Q. State whether, on such occasions, you required any assist- ance in holding her, or whether her strength was the same as usual, or not ? A. Yes, sir; when in these spells, I had oftentimes to have assistance. Her strength was much greater on such occa- sions. Q. Now, we will go back to 1863. You say you have seen Mr. Burroughs' handwriting often enough to be able to distinguish it? A. Yes, sir. Q. Were you in court yesterday, when the letters from Bur- roughs to Miss Harris were read ? A. I was. Q. Do you recognize .them as any of the letters you heard read ? A. I recognized them all. Q. State whether this letter, dated Chicago, August V, 1863 (handing witness the same), is in the handwriting of Mr. A. J. Burroughs ? A. It is. The letter was admitted, and read by Mr. Bradley, as follows: Chicago, August 7, 1863. Dear Mollte — I am again in town for a few days, and wish to see you. Drop me a note to Box 5982, stating where I can see you. Very truly, A. J. BURROUGHS. Q. State whether you saw that letter at or about the time it was received by Miss Harris, and where you saw it ? A, I do not rec- 4 50 MODERN JURY TRIALS. ollect where I saw that letter, but she read me the letter, though at the time I did not see the handwriting. Q. Now, look at this envelope and the letter therein inclosed (handing witness the same), and state whether you saw it at or about the time of its date? A. I saw this on the day she received it. Q. In whose handwriting, in your judgment, is that letter? A. In my judgment, it is in the same handwriting as the others — Bur- roughs.' Q. In the meanwhile, or immediately or shortly after the date of that first letter, of seventh of August, had you seen Mr. Bur- roughs, and where did you see him ? A. I saw him about five or six weeks before he was married; the date I do not know. He called at my store to see Miss Harris. Q. State whether or not he had any interview with Miss Harris at that time ? A. Yes, sir. He remained in my store then with her for about an hour, or an hour and a half. Q. Did you see him at the store at any other time ? A. Yes, sir; I had seen him at the store once before. Q. Are you able to say Miss Harris never saw him after this interview of which I speak ? A. Never that I know of. Q. State whether or not she was constantly in the store for months before the receipt of this letter ? A. She was. Q. Could she have left, so as to have had an interview with him anywhere ? A. No, sir. She could not have been gone an hour without my knowing where she was. She and I went and returned from the store, and also remained and slept together. Q. State, as well as you can recollect, all in regard to this last lette- I showed you — this letter of September 12; where you saw it and all the circumstances connected with it ? A. This letter I saw when it came in the house. Miss Harris brought it from the postoffice. She read it, and then remarked, " Who in the world couh, have written the like of this to me?" She read it first to m% and then I looked over it. I went and inquired what kind of a house it was; and, when I found out what sort of a place it was, I proposed to answer the letter, and find out who had written it. Q. Did she, or you, or any one that you know of, write any answer to that letter ? A. I wrote such answer, and signed her name. Q. Just state, in regard to that letter, whether that is, or not, in the handwriting of Mr. Burroughs? A. Yes, sir; I think it is. [Witness was handed letter dated twelfth of September, 1863, the handwriting of which she identified as that of Burroughs.] TRIAL OF MART HA.RRIS. 51 Q. State when and wbere you first saw that letter ? A. This Miss Harris also brought in from the postoffiee. Q. Did you see her open it, and see the contents of the letter ? A. Yes, sir. Mr. Wilson— What is the date of that ? A. Twelfth Septem- ber. The letters referred to were then read, and offered in evidence. They are as follows : Chicago, September 8th, 1861, Miss Molly Harris, Chicago : Dear Mollt — I am aware that it is stepping somewhat beyond the bounds of true propriety for a comparative stranger to address a note to a young lady, requesting her to meet him, but my hope is that you will excuse the presumption and accede to my request. I have had the pleasure of seeing you several times, but never have had the honor of an introduction. Now, my dear Molly, I have some things to say to you which I know you will be glad to hear, and I know of no better way to say them than for you to meet me, say on Friday, September 11th, at 94 Quincy street, at one and a half o'clock in the afternoon. I am perfectly well acquainted with the lady who keeps the house, and I know we can talk there with- out interruption. You will, perhaps, have some hesitancy in com- ing, but you need not have, as I can assure you my sole motive in requesting the interview is that we may become acquainted, and that mutual friendship may result from it. I am confident I can convince you with a few words of conversation that my sole desire is to be your friend, and I think a meeting would do us both good. Will you come ? Do. If you would rather I would see you at some other place, write where, and I will come. If you think it improper to meet me, I hope you will at least answer this note and state your objections. Your friend, J. P. GREENWOOD. Chicago, September 12, 1863. Dear Miss Molly — Your favor of Thursday was duly received, and I was sorry to read that you could not come at the hour I appointed. Unfortunately, I had a previous business engagement at half-past three o'clock, which is my excuse for not coming. My engagement was of such a nature that it was almost impossible for me to neglect it. I should have been most happy to have seen you. I have been absent from the city since Friday night; have 52 MODERN JURY TRIALS. just returned this evening, and I now embrace the first leisure moment to say to you that I will see you on Tuesday, at half-past two o'clock, at the place formerly designated (94 Quincy street), provided it is perfectly satisfactory to you. I am very anxious to cultivate your acquaintance, which I think will result to our mutual good, and I hope you will grant me the privilege of proving to you tha't I desire only to be your friend. I will here say I have had the pleasure of seeing you several times, but never have had an introduction. If you cannot come at the time I have appointed, please say by note when you can come; or, if you prefer seeing me at some other place than 94 Quincy, if you will be kind enough to state the time and place I will, if possible, see you. Your friend, J. P. GREENWOOD. Q.. I understand you to say that you wrote the answer to that, and signed the name of Miss Harris ? A. Yes, sir. Q. What did you do with the answer to the letter of the eighth ? A. I mailed it myself. Q. Can you recollect whether or not you gave any instructions to the postmaster in regard to that letter of September 12, 1863? A. I showed the envelope and the address to the clerk in the post- office, and told him to look particularly at the person who called for that letter, and describe him to me when I called. He said he would do so. I told him to look particularly at his hand. Q. For what purpose did you give that instruction to the clerk ? A. For the purpose of identifying the person who wrote the letter. Q. Did you call at the postoffice at any time; and, if so, how soon after you had deposited that second letter ? A. I deposited the letter on the twelfth, the day it was written. Q. When did you call for the answer? A. I called for the answer on Monday, the fourteenth. Q. Was that the next day? A. I deposited the letter on Satur- day, the twelfth, and on Monday, the fourteenth, called for the answer. Q. Who, if anybody, went with you when you called for that answer ? A. I went first myself. Q. Did you afterwards go again the same day ? A. Yes, sir. Q. Did anybody then go with you? A. Yes, sir; Miss Harris. Q. State what passed between you in her presence in regard to the person who got that letter ? A. He described the man to us. TRIAL OF MARY HARRIS. 53 He said lie was a man who weighed about 170 pounds; that he had black hair, a heavy black beard, a rather pretty hand for a man- of his size, was of medium height, and on his finger wore a set ring. Q. Did he describe the ring? A. He did. I do not remember the description, however, but Miss Harris turned round and said, " That is the ring I gave Mr. Burroughs ? " Q. Do you know whether or not, after this description was given, a photograph was exhibited to him? A. Miss Harris handed the clerk the photograph. Q. Is, or is not, that the photograph (handing witness a carte-de- visite) ? A. That is it. Q. What did he say when that was exhibited to him? A; After looking at it, he said, "Well, yes," and then hesitated; but after- wards added, "I do not know, as the beard on this is higher than he wore it." I asked him how much higher. He said, "Well, I guess something about an inch." Q. Did he say anything about the dress ? A. Pie said that it might be the same person; that he could tell more accurately if this person was in the clothes he appeared in when he came to the postoffice. He said the person who called for the letter was in cit- izen's dress, with a heavy outside coat on. Q. Miss Devlin, you have seen him often enough to know whether that is his photograph or not ? A. Yes, sir, it is. I saw him in his military uniform. Q. Where did you and Miss Harris go after the interview at the postoffice ? A. We went home. Q. Describe to the jury, as well as you can, what effect was pro- duced upon Miss Harris by this information. A. She got very much excited, and said she never thought he would turn out to be such a rascal. Q. Do you know, of your own knowledge, whether or not that same day she started to go out to the place where she supposed Mr. Burroughs to be? A. I went out on that same day myself (Mon- day, the fourteenth), to call upon the Rev. Dr. Burroughs, to know from him if his brother was in town. Q. After making this inquiry, what was done with Miss Harris that 3 r ou know of ? A. Miss Harris, when she learned that he had been in town, was more confident that it was him. Q. Do you know whether she went herself to Dr. Burroughs and took letters; and if so, what letters? A. She said she would go the next day and return his likeness, and all the letters she had of his, to Dr. Burroughs, and would let him know what a great rascal his brother was. 54 MODERN JURY TRIALS. Q. Did she leave your house? A. She did Q. Did she take anything with her? A. She did; all the letters. Q. Did she take the two anonymous letters also? A. Yes, sir. Q. How long was she gone ? A. I could not say exactly, but she might have been gone over two hours. Q. When she returned did she bring back all the letters, or not ? A. She brought them all back. She said she showed the anony- mous letters to Dr. Burroughs, and he tried to persuade her to think that it was not his brother who had written them- She then said he acted in such a strange manner towards her, his hand trem- bled, and she thought there was some plot between him and his brother about the affair. She did not tell him she had these other letters, but concluded to bring them back again. It was on the fifteenth of September she went there. She also told me that she saw A. J. Burroughs coming in in the cars as she was going out; that he poked his head out of the cars and looked at her. Q. You mean the horse-cars running out to the University ? A. Yes, sir. Q. Do you know whether she went with any one else; and if any one, who, to make further inquiries before she had gone to Dr. Bur- roughs, as to the identity of the person who wrote these letters? A. Yes, sir; my sister and Miss Harris went to the assignation house on Quincy street. Q. Was that before or after she had been to Dr. Burroughs? A. Before. It was the day that I went out. Q. State whether, when she gave you an account of her interview with Dr. Burroughs, she stated that she had learned from him that his brother, A. J. Burroughs, was in Chicago? A. She said lie said his brother was in Chicago for some time, but that he was not in Chicago at the time the first letter was written. He was not in Chicago on the eighth of September, and that he had left the second day before that for Washington. Q. Do you recollect ever having seen a pistol in the possession of Miss Harris ? A. Yes, sir. Q. State about what time — as early a day as you can recollect — when you saw that pistol in her possession. A. It was some time last fall; I cannot tell as to the day or the month. Q. Stale where and under what circumstances you saw it. A. I asked her what she had done with some money that I knew she had had. She did not tell me, but said she had bought something. A few days afterwards she showed me the pistol, and told me that was what she had done with the money. I asked her what she had bought it for. She said she was not the only lady who carried a TRIAL OF MARY HARRIS. 55 pistol. Shortly afterwards she said to me that she believed Dr. Burroughs and his brother had some plot against her. Whether she said it in reference to the pistol or not, I do not know. It was dur- ing that same day she told me. Q. State what she said about that. A. I asked her what plot they had ? She said it was to pick her up on the street and run away with her where she would never be seen. Q. Did you ever see any loose cartridges or powder in her trunk? A. Yes, sir. Q. At what time was that ? A. About the same time that I saw the pistol. I said to her, you do not know how to use it, what did you buy it for ? She admitted she did not know how to use it; and then showed me these cartridges as belonging to it. Q. Did you ever hear of her practicing with it in any way at all ? A. No, sir. I do not think she knew how to charge it. Q. Between what streets is No. 94 Quincy street ? A. I think it is between Monroe street and Adams. It is a small, very narrow street — a kind of alley. ,Q. Did you or not make inquiries, as to the reputation of that house? A. I did. Q. What is its general reputation ? A. Bad. Objected to by the District Attorney, and objection overruled. Q. Did you communicate to Miss Harris, or did she with you ascertain what the character of that house was ? A. I ascertained and told her. I told her that I was informed it was one of the worst assignation houses in Chicago. Cross-examination : By Mr. Wilson'. Where did you reside before you went to Chicago? A. In Baltimore. I resided there nine years. Q. Where did you reside prior to that time ? A. In Ireland. Q. When did you go to Chicago ? A. In March, 1863. Q. What members of your family went with you ? A. One sis- ter — Jane. Q. Where was your place of business in Chicago ? A. No. 186 Clark street. Q. Where was your residence ? A. I boarded on Monroe street. I forget the number. It was the fourth house from Clark street. Q. About what time precisely did you make the acquaintance of Mary Harris, and under what circumstances ? A. I met her in that boarding-house about a week after I went to it; and I went to it in the latter part of March, 1863. 56 MODERN JURY TRIALS. Q. Who introduced you to her ? A. The lady of the boarding- house. Q. Had you ever known or seen her before that time? A. No, sir. Q. What was the name of the lady who kept the boarding-house? A. Mrs. Lacey. Q. How far from the boarding house was the store? A. Not more than a block. Q. Who were her friends there ? A. She did not have any friends that I know of, other than the few acquaintances she formed in the boarding-house. Q. What books and newspapers was she in the habit of reading? A. She did not read much, except newspapers. Q. What newspapers particularly? A. Well, I do not know that she read any in particular. She read any she got, I guess Q. What were her habits as to attending church ? A. She attended her church regularly. Q. Did you attend the same church ? A. Tes, sir. Q. How often during the week ? A. Every Sunday. Q. How often during the day? A. Once or twice a day; some- times three times. Q. Did you ever attend on week days ? A. Not usually. Q. Did she have any attendants — any beaux, any admirers ? A. No, sir. Q. Did you ever know of her going out into society — to parties ? A. She has been to the theatre a few times; that is all. Q. Who did she go with ? A. Some of her friends from Bur- lington. Q. Young gentlemen ? A. Yes, sir. Q. Who were they ? A. I have heard their names — been intro- duced to them; but really I have forgotten. Q. How many times do you suppose she went to the theatre ? A. Only five or six times a year. Q. Did you go with her ? A. Sometimes I went Avith her. Q. Did you ever, during that time, see any exhibitions of ill- temper? A. None at all. Q. Did you ever hear any impatient or hasty remarks during that time ? A. No, sir. Q. Did you ever know of her being particularly unwell during that time ? A. No, sir; only once she had a sore throat. Q. Have you heard her make any complaints in regard to her health during that time ? A. Yes, sir; a little. TRIAL OF MART HARRIS. 57 Q. Was there any difference in her behavior at such times? A. No, sir. Q. Any change in her spirits? A. No, sir. Q. Had you during that time heard her mention the name of Mr. Burroughs ? A. Yes, sir. She told me she was going to be married to him in July. Q. When did she first tell you that ? A. I could not say exactly; but a few weeks after I became acquainted with her. Q. How often did she repeat it? A. I do not know how often; but a great many times. Q. What else did she say to you about him ? A. Well, I cannot recall all she said; but she said a great deal. Q. Express regard for him. A. Yes, sir. Q. How frequently was he mentioned ? Every day ? A. That I could not say; but perhaps sometimes every day, and sometimes two or three times a week; very often, anyhow. Q. And you read all his letters that she received? A. I read a great many of them. Whether I read them all or not I do not know. Q. When did you see Mr. Burroughs ? A. I saw him a few days after' he came to the boarding-house and called on her. Q. For how long a time did you see him? A. He remained about an hour. Q. Were you present during the whole time ? A. I was only present five or ten minutes. Q. When did you see him again? A. At the boarding-house, in March or April. Q. When again ? A. In my store. Q. When was that? A. I could not say what month it was when I first saw him at my store, or what day of the month. It was sometime during the summer. Q. Who did he call to see ? A. Miss Harris. Q. Did he see her? A. No, sir; she was not in. Q. When did you next see him ? A. In my store, about five or six weeks before he was married; that is, before I saw the marriage published. Q. When did you see the notice of his marriage ? A. A few days after it was published. Q. Did he see Miss Harris this last time when he called ? A. Yes, sir. Q. Where ? B. In my store. Q. Were ycu present during the whole interview ? A. No, sir; but I was in view all the time. 58 MODERN JURY TRIALS. Q. Did she go out with him? A. No, sir. Q. How long was he there ? A. From an hour to an hour and a half. Q. In the front part of the store ? A. Yes, sir. Q. When did you see him again ? A. I did not see him again. As a sample of letters read in evidence, the following will suffice: Letter dated Sunday, June 11, 1859. No place named and no signature. Letter addressed to "My dear, dear Mollie." He advises her to be more careful of her health, and gives her a full history of his pecuniary matters and some pecuniary difficulties. Letter dated Monday, June 26, 1859, 9 p. m. No place men- tioned and no signature, but ending with, " Dearest girl, good-bye." The letter is addressed to " Dear, dear Mollie." He intimates in this letter that she did not wish to be addressed as " little Mollie," for she now wore long dresses. But he says he cannot divest him- self of the thought that she is still the " little Mollie " who sat upon his knee and twined her arms about his neck, or who sat beside him, and about whom he twined his arms and lifted her up, and could have carried the precious burden to Paris. He only expressed the fear that she would feel too big to sit again upon his knee and kiss him. Letters dated Thursday, June 30, 1859 (no place), and addressed "Dearest girl;" Sunday, July 2, 1859, and addressed "My dear little Mollie;" Tuesday, August 2, 1859, and addressed to "My darling little Mollie;" Tuesday, August 14, and addressed to "My dear, dear Mollie." In all of these letters the writer speaks to the prisoner in the most endearing terms. He expresses his love for her, and gives her very good advice. He speaks of going to Pike's Peak, and also of his pecuniary matters. In one of the letters he invites her to meet him in a sort of surreptitious manner at Mount Pleasant. The following letter was read in full, and is published as giving a fair indication of the letters subsequently written to Miss Harris by Burroughs : "Monday, August 22, 1858. " O! My Deab Little Rosebud: How am I to thank you for such a favor ? O, joyous surprise! Glad source of delirious joy! Many times I had longed for your picture, and let my imagination dwell upon the receipt of it, but durst not ask you for it, for rea- sons I will give you if we ever meet — not now; but it is the "r-^-e TRIAL OF MARY HARRIS. 59 grateful, coming as a surprise of inexpressible delight. Really, Mollie, as I returned from the post office after receiving it, I felt so light I could with difficulty keep the ground; I could scarcely avoid flying. I wanted to button-hole everybody I met, and show them what I had got; and it required all the sense of propriety I could command to keep myself from doing so. O! that beautiful picture! beautiful! beautiful! beautiful! And my beautiful! beautiful Mollie! What can I now say for her? t cannot say — words fail me. Could I see her, I might, perhaps, express faintly what are my feelings, as reawakened by such visible testimony of her loveliness. O, Mollie, Mollie! you have turned my dry, sterile, old bachelor's heart into a gushing fountain of glad emotion, and warm, genial affection; and Mollie — dear, darling Mollie — is the source and end of all. Would I had a hundred Pike's Peak's fortunes to lay at her feet, and the affection of a hundred hearts to lavish upon hei. If " another Mollie" were to contest the claim to my love, she would stand but a poor chance now, if not before. When you were remarking concerning the change {improvement) that had taken place in your personal appearance, were you trying to make me understand that you had added to your already redundant stock of beauty? I did not fully take the hint then; I understand now. Nature has surpassed herself in bestowing new charms when the measure was already full, running over, and Mollie herself is taken by surprise at her own new excellencies. I understand it all now, and a most effective way have you adopted to bring the fact to my comprehension, and as modest and winning as effective. Your beautiful picture! I have to look at it the last thing before I put out the light at bed-time, and the first thing in, the morning. And many times during the day do I look again and again at this beautiful shadow of a more beautiful substance, and each time draws forth some fresh exclamation of swelling admiration. Do not, my dear Mollie, let that accursed blotch on your neck be left to mar such a beautiful person as yours. You have neglected it already too long. Do so no more. Perhaps, dear girl, you will think me extravagant and excessive at my expressions of delight at the receipt of your picture; perhaps I am fulsome, nauseating even. But remember the circumstances. A man would justly be thought a fool, who, going to the town- pump, would clap his hands and dance with wild exclamations of delight at the sight of water; but on the desert, where water had not been seen for many long, weary days, he would be thought perfectly sound, and all would rejoice with him. Were I with you, 60 MODERN JURY TRIALS. enjoying the richer favor of your presence, though I would receive your picture as a precious treasure, yet I would not go quite crazy over it, but would seek to exhibit good common sense. As it is, away off in the wilderness, among Arabs, hideous to behold, and worse to mingle with, I am like the man in the desert at the sight of water. So, under the circumstances, I hope you will excuse me, clearest, if I do planter it on rather thick. I would not resort to gross flattery of your personal appearance, though your charms were those of Venus (and I do not think them short of it), for I possess too much of sincere regard for your best interests to turn flatterer, and injure you with extravagant praise. 1 would rather tell you of your faults, and show forth my regard and appreciation of you by the unmistakable evidence of duty faithfully performed. " faithful are the wounds of a friend, but the kisses of an enemy are deceitful." If I speak warmly in your praise, it is but the free gushing forth of uncontrolled feelings, and you know by experience may ring the din of hated chiding in your ears, and make you wish — O! so much! it might but cease. But when I chide you, Mollie, I would rather take you in my arms, and soften the harsh accents by the soothing caresses of true, kind and warm affection; for I am not a tyrant nor a bear in disposition; neither would I be the fitful cat, that utters her fondness in tones of winning tenderness at one moment, and plants her claws to the quick into her darling pets the next. But I would be as I have professed, your true friend; in advance asking pardon for his many failings. Will you believe me, Mollie ? and will you understand me, as I make my imperfect efforts to express my sentiments; while I protest I could tell you a sight better if I could see you ! And, my dear, dear Mollie, shall I not see you at Ottumwa the first of the month ? Dear girl, I want to urge you to come, if at all practicable, and don't let small consider- ations prevent you, and come in such a way as not to be tied up to somebody else, so to prevent our being together most of the time, mind you. I broke my promise, and did not write "Sunday," but it was not because I had not intended to; but because I could not get a minute to myself. To-day you will excuse me. A, J. B. Hugh Mc Cullourjh, sworn — I saw Miss Harris in one of the rooms of the Treasury building, upon the floor where the body of Mr. Burroughs was lying. I think it is the first room on the left as you enter the eastern entrance. I think a police officer was in there at the time. It is possible he might have left the room, but TRIAL OF MARY HARRIS. 61 my impression is that he remained all the time. He was certainly there most of the time. The conversation on the part of Miss Harris was chiefly in exclamations. I put but few questions to her. T listened to her rather than carried on the conversation. I think the first question she put to me was, " Is he dead !" At that time, my impression is, that Mr. Burroughs was still breathing. I went out, and returned to her soon after with the information that he was dead. Miss Harris was much excited, and uttered such excla- mations as — " Why did I do it? Why did I do it?" I put some questions to her in regard to her acquaintance with Mr. Burroughs. In the course of the conversation, she informed me that she had known him for many years; had been engaged to him. I asked her if Mr Burroughs had done her any other injury than the vio- lation of his engagement. She exclaimed, with a great deal of emphasis, that he had not. I put the question to her, " Are you a virtuous girl ?" "Yes, as God is my witness," was her answer. That is about the amount of the conversation that took place. She also said to me that she had come up to Washington for the pur- pose of prosecuting Mr. Burroughs for a breach of promise of marriage. I saw the pistol. It was not more than fifteen minutes from the time I first saw her in that office till she left with the officer. Perhaps eight or ten minutes after Mr. Burroughs died, I thought it was best she should leave, and she herself seemed desir- ous to do so. I accompanied her to the carriage, and she was taken by the police officer to prison. I engaged the carriage for the pur- pose of having her taken to the prison. Cross-examination : I had never known or heard anything of her before. I knew Mr. Burroughs after he came to Washington. He came to my bureau — I was then Comptroller of the Currency — in the spring of 1863, and applied for a clerkship. I don't recollect when he became a clerk, but I think it was in the latter part of that year. Had no particu- lar personal social relations with him, though I knew him very well, but my relations with him were not more intimate than with the balance of the clerks. Miss Harris, while making the ejacula- tions I have referred to, answering the questions I put to her, etc., was deeply excited, and seemed to be in despair — in a frenzy. I think, as I came in, she dropped on her knees. I know she put her hands upon my coat with great energy, as she asked the question regarding Mr. Burroughs. I do not recollect the character of the expression of her face, except that she was deeply moved. I don't think she shed any tears. It seemed to me her agony was too great 62 MODERN JURY TRIALS. for tears. I don't think she was flushed, but pale, or rather, pallid. I did not take notice of her eye, but her whole manner was striking and impressive in the extreme. I recollect I fixed her attention for a moment, and put questions to her; she answered as if she compre- hended them— answering clearly and coherently; but immediately after giving the answer, she would return to exclamations, pacing the room, and exhibited every indication of being perfectly over- whelmed. Q. Describe to the jury her manner when she said she was a vir- tuous girl. A. That is rather difficult, as I am not an actor. I rec- ollect I told my wife I could now realize the difference between real grief and honor, and what we had been in the habit of seeing upon the stage. I cannot exactly describe her manner. She was much moved, ejaculating, "Why did I do it? — oh, how I loved him; why did I do it ?" and such like. I never witnessed an instance of greater excitement from moral or mental affection of the mind. This was a new case to me, and a particularly interesting one. The next morning, I think it was, I took Mrs. McCullough down to the jail with me, and, with Mr. Beale, the warden, went to her cell to see if she needed any aid. Mrs. McCullough felt interested in her- We found a gentleman from, her own State had taken charge of her wants, and we therefore felt that there was no further necessity for interference on our part, or for any proffer of assistance to her. I found Miss Harris much in the same condition in which she was at the interview of the afternoon before. She was pacing the room as upon that occasion, and her exclamations were much of the same character. Q. You never saw her after that tension of mind had passed off ? A. She was still excited at my second interview with her, but not so much so. Q. State whether, from what you have stated, you were able to form any judgment as to the condition of her mind, and whether she was then capable of acting as a reasonable and responsible being ? Objected to by the counsel for prosecution. Counsel desiring a few moments to look up certain authorities on the subject, the argument was deferred until after the examination of the next wit- ness. AN ATTORNEY "WHO SWEAKS WELL. Joseph JET. Bradley, sworn: By Judge Hughes — Please state to the jury how long you have known Miss Harris, and whether your acquaintance since you have TRIAL OF MARY HARRIS. 63 known her has been intimate or not. A. I saw Miss Harris, I think, the third day after her imprisonment. I was applied to take charge of her case, and declined on the day after her arrest, and persisted in that declination until I saw her; and then I undertook her case to the extent only that I should see proper preparation made for a defense, although I would not undertake to try the case in court. Subsequently I became her counsel. For the first month or six weeks I saw her very seldom, and until the latter part of February, when I went with Mr. Phelps to see her and found Mrs. Phelps there. I thus became acquainted with her. I do not think that up to the latter part of February I had been to see her but two or three times. I have made one species of insanity particu- larly a matter of study, and that induced me to attend more especially to the condition of Miss Harris; yet I did not see her until the latter part of March, for I was very much engaged in court. Between the twentieth and thirtieth, circumstances occur- ring at that time, called my attention more particularly to her, and after that time I did not see her frequently until the twenty-fifth of April, if my memory serves me right. In the meantime I had made several visits, and she had had a very violent attack of erysip- elas in the head. During this attack, I having myself suffered more than I knew anyone else to suffer from the same cause, saw her repeatedly. I think I saw her three days in succession during that attack. Q. Please proceed now and state any facts tending to illustrate the condition of Miss Harris' mind bearing upon the question of insanity; and if you have kept any notes, just give the whole account in a narrative form. Mr. Bradley then read from his notes as follows: My attention was directed to observations of the facts indicating the condition of the mind of Miss Harris at my first interview with her, when she was under such excitement as to attract the attention of every one who saw her. And after that, and looking to the preparation of her defense, I saw her with Dr. Nichols, and made repeated visits to her, mainly to see whether she recollected the incidents of her life, and talked rationally about them. Various things occurred sufficient only to keep my attention aroused until some time in the last part of March, after the twenty-fifth, and before the first of April, when on calling, I found her in some excitement, which was exhibited more in her evident desire to talk about Burroughs than I had observed before. Some one had sent to her a newspaper, or piece of a newspaper, containing an account of a seance or session of biologists, in which it was reported that G4 MODERN JURY TRIALS. the spirit of Burroughs had been evoked and appeared, and the conversation between the medium and that spirit was given. She showed it to me; commented upon it; asked me if I had faith in or even doubts about that science. She was nervous and excited. I felt her pulse. It was over 110. The top of her head was so warm as to be unpleasant, and yet her hands were cold. The pupil of the eye dilated so as to cover the iris very nearly, leaving only a ban,d, as it were, surrounding it. She talked of Burroughs or his family — his brother, I should say, rather — and his (Burroughs') wife, during the greater part of this interview, and that with a manner showing no consciousness of having done wrong to any one but his wife. Mr. and Mrs. Phelps, of Iowa, who knew her well, were here in the latter part of February or first of March. He was attending to, or rather waiting for, some case in the Supreme Court, and I visited her with him, and found Mrs. Phelps there. Of course, we — Mr. Phelps and I — talked freely of the matter; and perhaps what he said caused me to notice more accurately her manner, appear- ance and conversation. I remember but one thing of any particular note. While we, all four of us, were talking quite pleasantly about some incident, Miss Harris suddenly broke in on what we were talking about with some matter wholly irrelevant, and began after a moment to relate some- thing to us, or rather to Mrs. Phelps in particular, when the latter said, "Yes, Mary, you told me about that a little while ago." * * * & * :Js * * He continued reading notes at length: I sat down, leaving her standing. She advanced rapidly towards me, wringing and twisting her handkerchief, and saying, almost fiercely, " I am not going to stay here any longer, Mr. Bradley. I am going out — I am. I won't stay. I want you to take me out, Mr. Bradley." I replied: "Yes, Miss Mary, that's all right; I don't wonder at it. You have had a long and hard time of it, and I would like to get you out." " Then take me out — take me out now. I won't stay here a minute." "Well, wait a minute, till we pack up your things." "I don't care about the things; I am going now." I said: " But look at those bars, and " — "Bars — bars," she said, " what do I care for bars? Do you think they could keep me ? Haven't I a will, and what are bars then ?" But, I said, "I could not squeeze you through them; and the TRIAL OF MART HARRIS. 65 only way will be to put you in my pocket, and so pass through the guards. We must wait, and make no noise to arouse their suspicion. Sit down quietly for a little while, and tell me all about it." During this whole time (asd more passed between us, much of which I have not noted, and do not now recall), she moved rap- idly or stopped suddenly for an instant, yet all the time nervously twisting her handkerchief. She now took a seat by me. I felt her pulse; it was about one hundred and twenty. I tried to catch a look into her eyes; the pupils were dilated as before; her hair was deranged. I arose after a minute, and said, " Let me apply that bay rum and water." Took her handkerchief, wet it with the mix- ture, applied to the temples. Her forehead was as cold as marble. The top of her head, back of the main suture, was so hot as to be uncomfortable to the hand. I wet the handkerchief and laid it on that part of her head. She sat as still and motionless from the time I arose till I had done this, as though she were a statue. I then sat down by her, took her hand, and spoke gently to her. I said, "Now tell us all about it; what has happened?" Her eyes were fixed, as I had observed them before. She glanced at me and around the room rapidly, and said in a low tone (she had previously spoken with great excitement), " Mr. Bradley, I can't stay here; I can't sleep; I have not slept for two weeks; as soon as I begin to close my eyes I am roused up; the cry of murder is ringing in my ears; it comes from the passage; it is in the room, with most hor- rid shrieks of pain, cursing, and dreadful language; and overhead a crowd of men are stamping and shouting and yelling; and all around me are the most dreadful noises. I can't stay here; I won't stay another night. Let them take me out and hang me; that's all they can do. Let them do it now." By this time she had become greatly excited. Her pulse, which had fallen considerably, had risen again. She attempted to rise, but I restrained her, and said, "Sit still; wait a moment; you haven't told me all yet; I must know all, Mary, before I can advise you. You know and believe I am your friend; that I intend to take you out." She sat still looked at me for a moment, and in a most plaintive voice said, " Mr. Bradley, do you think I am a very bad girl ? I have prayed to God to forgive me. I do believe he has forgiven me; but indeed I never meant to do any human being any harm. Do you think Mrs. Burroughs hates me ?" I ti-ied to soothe her; and, falling into her own vein, by degrees the excitement subsided, a tear welled up and filled her eye, and hung on the lid. I wiped it off with my own handkerchief. She started immediately, and said, "No, no! not so; let me get another 5 66 MODERN JURY TRIALS. handkerchief." That was followed by a choking sob, the tears began to flow freely, and she was relieved for the time. We talked sometime about indifferent matters, when again her face became clouded and gradually fixed, and her eyes settled with a firm and fixed look into vacancy; the pupils dilated as before; her figure as rigid as her face. I spoke to her, but had no reply. Presently she said, "Yes, I loved him; oh! how I loved him! and how she must hate me. I don't like to be hated; I never harmed anybody; it's me that was hurt, and they told lies about me." And then she shuddered and sighed again. I said, "She does not hate you." She turned to me the saddest face I ever looked on. and said, "How do you know; you do not know her; you did not know him. I knew him for seven years, and he loved me; I know he did; and he loves me now. He don't love her as he did me. He has loved me ever since I was a little child. It will be noticed that Mr. Bradley skillfully keeps his strong points often before the jury. Mrs. E. A. Flemrning, sworn: By Mr. Wilson — I reside at No. 142 Lexington street, Balti- more. My acquaintance with Miss Harris was on the sixth of Jan- uary last. She came to my house to board. She said her business was to go to Washington; that she was not very well, and she was stopping in Baltimore for she did not know how long. Her object in going to Washington, she said, was to collect money for the Misses Devlin — the ladies by whom she was employed. That was what she told me the first evening she came there. Miss Devlin ■used to do business in Baltimore, before going to Chicago. The prisoner remained at our house until the thirtieth day of January, the day she came to Washington. Q. State what she said with regard to her expenses. Objected to by counsel for the defense. Withdrawn for the time being. Q. State what her habits were while visiting you. Whether or not you know from her own statement, of her frequently visiting places of amusement; and, if so, state with whom ? A. No, sir; she did not visit any place particularly. Well, she used to go out occasionally to evening entertainments. Q. In whose society ? A. That of Mr. Devlin, brother of the lady with whom she was engaged. He was the only gentleman she everwent out with. Q. State what she said subsequently to the day you have men- TRIAL OP MARY HARRIS. 67 tioned regarding her visit to Washington. A. She said she intended to come down and sue an old lover for a breach of promise. That she had been engaged to him for seven years, and that be had mar- ried another young lady, but had corresponded with her up to within a month of his marriage. She thought what induced him to marry this lady in Chicago was the fact of her having money. Her object in instituting a suit she said was merely to clear herself and let the world see that she was a virtuous girl. Q. Did she assign any other reason for bringing this suit ? A. Well, she said something about two anonymous letters that she had received, signed Greenwood. Q. Did she say anything further about the lady he had married ? A. She merely said that the father of this young lady was very wealthy, and she had understood and believed that Mr. Burroughs loved her, but married the other one because she was rich. She always held him, Mr. Burroughs, in very high estimation — always speaking very well of him. Q. State what she said in regard to the delicacy, the modesty, or propriety of Mr. Burrough's treatment of her ? Objected to by counsel for the defense. Objection overruled and witness directed to answer the questions. A. She said that she had always received the treatment of a father from him, and looked up to him as such, putting the utmost confidence in him. He had never wronged her, she said. Q. State what she said in regard to being still in the employment of the Misses Devlin and as to the payment of her expenses by them? Objected to by counsel for the defense. Objection sustained. Q. Will you state whether you observed on the day the prisoner left Baltimore, anything remarkable in her deportment ? A. I do not know. I did the evening previous to her coming to Washing- ton. The Rev. Mr. Dudley was at the house, and while he was playing a hymn on the piano in the parlor, she got up, picked up one of the ornaments in the parlor, and went sound to take up a collection. I thought that very strange conduct. Q. Did you observe that she was at that time unwell, or corn- planed of any disease, and if so, state what? A. Yes, sir. She complained very much of her throat and complained of being very weak. She had very little appetite. Q. Did you observe anything else that was remarkable in her conduct? A. Yes, sir. Sometimes she would be sitting alone, apparently engnged in deep thought, and then she would get up and all at once commence to sing a love song — 68 MODERN JURY TRIALS. " First she loved him as a brother. And he doubted her when her love was stronger." Then she would come to where I was, and appear to be in very good humor. Cross-examination : By Mr. Bradley — I went to the cars with Miss Harris and gave her my ticket. She was to return that evening. We were to go to a lecture together. DROPS A BAD WITNESS QUICKLY. AW EXCELLENT RULE. Dr. John Frederick May, sworn: By Mr. Carrington — Q. 1. Tou are known as a physician who has been practicing in this city, for a great many years. I desire to have your opinion upon a hypothetical case, which I will state. It is as follows: In the case of a young woman of a highly nervous organization and vivacious temperament, and who has suffered from a disap- pointment in love, there is observed at intervals of greater or less regularity, at monthly periods, the following symptoms: irregular and insufficient sleep, depression of the spirits, and melancholy, outbreaks of violence of the following character, attacking a friend with whom there had been no previous quarrel, with a broom, and on another occasion with a carving knife, throwing a pin cushion at a customer in the store in which she was employed, the cutting or attempted destruction of a piece of fine needle work belonging to a friend, awaking at an early hour in the morning and saying to a room mate that she must leave her, and was going to walk upon the lake shore, insensibility to cold, and shedding tears. State how frequently you have noticed in your practice such symptoms in cases of listeria, or dysmenorrhcea, and whether upon such symp- toms you would infer the insanity of the patient ? A. It is impossible for me to say how frequently I have seen some of the symptoms enumerated. I have in cases of hysteria seen some symptoms like these, and others^ have been absent in such cases. Dysmenorrhcea often occurs without being accompa- nied by any such symptoms at all — without any symptom that has been enumerated; but as far as answering such an abstract ques- tion as that, I should say that if those symptoms occurred at stated periods,' the periods mentioned here, that they were symptoms of nervous excitement, dependent upon uterine irritability. I could TRIAL OF MARY HARRIS. 69 not call that a case of insanity in the general acceptation of the term " insanity." Q. 2. I will now ask you this question. A young woman of a highly nervous organization and vivacious temperament, having exhibited the symptoms stated in the previous question, and suffer- ing from dysmenorrhosa, having expressed during a period of insan- ity, armed with a pistol, goes in the day time to a public building, inquires at the door for a person, whose name she gives, and con- cerning whom, while in a condition of sanity she expressed anxiety, goes to the door of the room of that person, and sees him, then conceals herself, and as the person passes her, without notice, aims and fires the pistol at him, inflicting a mortal wound, and then cocking her pistol fires at him a second time. State whether the fact that after the commission of such a homi- cide, she did not make any attempt to escape, and no effort to pal- liate the crime or to allege a provocation, but expressed sorrow and great distress, and exhibited great emotion, and the further fact that the party did not avail herself of the first opportunity to com- mit the act, would, either of themselves, or in connection with the symptoms previously stated, indicate the insanity of the patient, whether, in your opinion, such facts and symptoms could be accounted for upon the supposition that the act proceeded from an insane impulse, than upon the supposition that the party, at the time of the commission of the act, was sane, and was compelled thereto by any other motive, not insanity. Q. 3. State whether the fact that the person did not avail herself of the first opportunity to commit the act, but after the homicide, attempted to escape, made an effort to palliate the offense, and alleged a provocation; and although expressing great sorrow and evincing great emotion, declared that the person deceased had injured and ruined her, and that she was determined to have revenge, if it cost her life, would by themselves, or in connection with the facts and symptoms previously stated, indicate the insan- ity of the patient; and whether the act or homicide could be better accounted for upon the supposition that it proceeded from an insane impulse, than upon the supposition that, at the time of committing the act, the person was sane, and was compelled thereto by any other motive ? Mr. Vookhees objected to the witness answering the question. He had a great deal of respect for the witness, and a great regard for his experience as an expert; but before he was a competent wit- ness it should be ascertained whether or not he had made that 70 MODERN JURY TRIALS. branch of study a specialty. It would have been necessary for witness to have heard all of the evidence before he could testify upon abstract cases. This objection was not made from a want of confidence in the ability of the witness, but because there are cer- tain rules which must be obeyed, and which require that a profes- sional man must make a study of the subject upon which he professes to give an opinion. Mr. Caeeingtost said the opinion of Dr. Nichols was based upon certain hypothetical causes. His testimony is all predicated on cer- tain causes, such as that of a party who had been suffering from disease, etc.; and Dr. Nichols' opinion was founded upon the assumption of two causes, one of which was moral and the other physical, and the prosecution desired to interrogate the witness rel- ative to causes that might result from the physical condition of a.' party suffering under such causes as were stated in the question. Mr. Wilson" argued that as Dr. Nichols had stated the various causes upon which his opinion was based, and as the questions selected were those pertaining to bodily disease, it was perfectly proper for the witness to say whether, from his observation of sim- ilar symptoms in other persons, they were necessarily a cause of insanity. The witness (Dr. May) was examined by the court, and said he was a practising physician, and had had an experience since 1834. Has had opportunities of judging of the effect of physical diseases upon the mind, but he distinctly desired to say he was not an expert on the subject of mental diseases. He had never made the study of the mind a specialty. He had studied it as much as edu- cated physicians do generally; but whenever he had a case of insanity, persistent in its nature and strongly developed, he did not attend to it himself, but put it under the charge of those who had made the study of the mind a specialty. Mr. Caeeington said he held that any educated physician was a proper witness on a question of insanity. Mr. Vooeiiees argued that before the physician could be a com- petent witness, it was necessary to show that he possessed that skill required by the books. He argued, further, that the term physician, as used in the books, when applied to cases of insanity, applied only to those who had made the study of the mind a specialty. The Court decided that the question was a proper one, and Mr. Bradley took exception to the ruling of the court. TRIAL OF MARY HARRIS. 71 Df. Mat said he did not profeass to any more skill than a physi- cian in the ordinary routine of practice might require, and had never made the study of the mind a specialty. Mr. Hughes objected to the form of the first question, and argued that all of the facts as detailed by the witnesses should have been stated, as the witness had not heard the testimony in the case. Whether the deceased wrote the fictitious letters or not, the accused at least believed they were written by him; and her disap- pointment in love, and her belief that deceased intended to disgrace her, had the same effect' as though these facts were actually true, and all the facts as testified to should be stated to the witness. The interrogatory goes to the question of general insanity. This plea had not been set up, but simply that the insanity of the accused was paroxysmal, and that she was subject to mental dis- turbance, which manifested itself in connection with Burroughs. All the facts in the case must, therefore, be detailed to the witness, and not only a few of them. Judge Wtlib said he did not know what the evidence was in this case. He was not the judge of it, and, officially and judicially, he must close his eyes to it. All he knew was, that they were try- ing a case of the United States against Mary Harris; and at this state of the case a hypothetical statement was submitted to a wit- ness as an expert, and the witness was asked whether a party thus affected was insane. The court wag inclined to admit the evi- dence, but the prosecution adduced it at their own risk, and it might be subsequently cast aside, and the jury warned not to cor sider it. The second question was also objected to by Mr. Hughes, on the ground that it was not a medical question, but one of fact. Mr. Caerin"gton urged that it was a proper question. Dr Nichols had been asked for his opinion as to the insanity of the prisoner in regard to the whole evidence. He gave that opinion upon the evidence -as he understood it; but he (in Mr. C.'s opinion^ misapprehended the testimony, and assumed what was not proven. When Dr. Nichols gave his opinion it was on a hypothetical case, the defense relying upon a hypothesis to prove the insanity of the accused. The prosecution undertakes to meet that testimony and opinion, not by showing merely a hypothetical case, but by adopt- ing all the facts upon which the opinion of Dr. Nichols is based. Mr. Carrington argued that the opinion of Dr. May and other edu- cated physicians was worth more than the opinion of those who attended only to disease of the mind; for the former looked to all 72 MODERN JURY JURY. physical causes for certain effects, while the latter pursued but one branch. Mr. Hughes replied to Mr. Carrington, and said this paper seemed to be but a commentary on the testimony of Dr. Nichols, drawn up by counsel, and to which they desired to have Dr. May swear. He defended Dr. Nichols' course, and dwelt at length upon the points of his testimony. Remarks of Hon. James Hughes. This speech is a tersely stated argument, without the least attempt at eloquence; yet it is telling, as a contrast to what fol- lows. Judge Hughes: May it please the court, and you, gentlemen of the jury, it is essential to the discharge of <"he very responsible duty which devolves upon you in the decision of this cause chat you should well understand the issue which you have to try. The indictment charges the defendant with murder; and in this charge is included the lower degree of felonious homicide — manslaughter. Under this indictment, if the evidence is satisfactory of the guilt of the accused beyond a reasonable doubt, you ought to find Miss Harris guilty of murder; or if the proof fall, short of establishing legal malice — that is to say, if the killing, instead of being deliber- ate and premeditated, was done upon sudden heat — you might con- vict her of manslaughter. To this indictment, gentlemen, she has pleaded "not guilty;" and this puts the prosecution upon the proof of every material allegation necessary to sustain the charge; and this proof must be so clear that you will be able to say, upon your oaths, that her guilt is established beyond a reasonable doubt. Otherwise you must acquit her. We propose, or at least I do, to meet this accusation fairly. I have observed, from the wording of one of the instructions asked for by the counsel for the prosecution, a disposition on their part, if they fail in obtaining a conviction for murder, to endeavor to obtain from you a compromise verdict, a conviction for man- slaughter. Gentlemen, this killing was either a deliberate and premeditated murder, or it was no crime at all; it was either excusable homicide, committed in a state of mind which rendered the accused irrespon- sible for her act, or it was a homicide, although with great provo- cation, yet with a sufficient degree of deliberation and premeditation to constitute the offense of malice. This, then, is the issue which you have to try; and it is not amiss that I should direct your atten- TRIAL OF MARY HARRIS. 73 tion to the parties to this cause. The accused, as you see, is a woman. It is the pleasure of the prosecuting attorney, in intro- ducing this case to your attention, to comment on this subject. He warned you against sympathy; he warned you even against mercy; and advised you that the laws of the land lodged the prerogative of clemency elsewhere. While he himself professed great sym- pathy for woman, he also professed that this particular female was an offender so black with crime that she had excluded herself from the pale of sympathy on that ground. He said that she had mani- fested a savage disregard of human life; and later in the progress of the cause, when the oaths of the witnesses ought to have dissi- pated any such impression from his mind, he, with great emphasis, in the presence of the court and yourselves, pronounced this the most atrocious murder on record! It is not, gentlemen, because the defendant is a woman that we expect an acquittal at your hands. She is young, and I was about to say that she is friendless; but she is not; but I will say this in her praise, that whatever friends she has, she owes to her own unassuming merits. She has neither wealth, station, nor kinsfolk; nothing to make her friends except her misfortunes and her good conduct. It is not because she is a woman; it is not because her parents and relatives, who should be here with her to-day, to sustain her in this trying ordeal, have been separated from her, and have become to her as aliens and strangers, through the acts of the unfortunate man whose life she has taken; it is not for that that we shall ask you to acquit her, but because she is innocent; because she has a right to a verdict of not guilty from you, under the laws of the land. And permit me to say that, whenever, in the very opening of a prosecution like this, counsel, of the learning, experience, and ability of those prosecuting this case, serve notice upon the court and jury, and upon all mankind, that they are seeking for a con- viction upon mere technical grounds, and when throughout the progress of the cause the same disposition is manifested by repeated objections to testimony as it is offered, and when, in order to induce the court to give such instructions to the jury as were not law, for the purpose of conviction, old and exploded doctrines are exhumed, resuscitated, and appealed to, and when we see immediately behind the prosecution the party representing private vengeance in this cause, the prosecution so introduced seldom, if ever, fails to be unsupported by law and by evidence. Gentlemen, the defendant is brought here by the power of the Government, to answer this charge. Human life has been taken, and a public examination of the circumstauces attending it is due 74 MODERN JURY TRIALS. to public justice; it is proper that she should be here and answer] for the killing of this man; but she comes here helpless, in the 1 hands of a powerful Government; and the Government is the other! party to this cause. True, the duty of the Government is to! enforce the law; to punish offenders; to protect human life; but : in no spirit of persecution and with no vindictiveness. It is a painful thing, and it ought to be so to the officer of public justiee, to arraign, try, and execute even the guilty. Zeal, perhaps over- much, and passion may be excused in the prisoner, or in her advo- cate when arraigned before the bar of public justice, and charged with the highest crime known to the laws, but the representative of the commonwealth comes here uninfluenced by private consider- ations. He is presumed to be disinterested, presumed to be impar- tial, and absolutely to desire, as the law desires, that no innocent person should suffer; and to desire to prosecute his cause in the spirit of the law, which says that it is better that ninety-nine guilty persons should escape than that one innocent person should suffer. Now, the fact about it is, that there is a letter in the testimony which shows that these parties had a lovers' quarrel and exchanged tokens, or agreed to do so; but, as the evidence shows, afterwards had an interview, became reconciled, and their affairs floated on in as smooth a current as before. If this be not so, why are these old letters here ? why is this picture here ? If the agreement to break off this engagement was carried out, if they never came to a differ- ent understanding than that, why are these things here? Truly, the man must be blind, I think, who fails to understand that mat- ter, or surely he never was in love; never had any quarrels, those lovers' quarrels which are said to be sweet, and those reconcilia- tions that loom up in after-years as the green spots of memory. He denies here that the engagement to marry subsisted after the writing of this letter, and asserts that the lady herself broke it off, and that she was then mistress of her affections and remained so, that afterwards, when the disconsolate and rejected swain married another woman, she became jealous and killed him for it! That is his theory. The mere statement of such a theory is a sufficient refutation, and shows to what straits the prosecution have been driven. How hard it is for them to meet fairly the law and the evidence in this case, and to get up even a plausible theory of guilt against this poor unfortunate girl. Then he speaks of punishment, pursuing the same cry for blood that has characterized this prosecution from the commencement. TRIAL OF MARY HARRIS. 75 Punishment is good for the guilty, but when administered by courts of law it is administered in a spirit of sorrow and for refor- mation, not with vindictiveness. Punishment, indeed! Who is to punish the betrayer of female honor ? Who is to punish the ser- pent that, with his slimy track, pursues from early girlhood into budding womanhood the unfortunate girl, separates her from her friends, her family, and leaves her alone and isolated, without father or brother to defend or protect her, and then throws her heartlessly upon the world ? Who is to punish him ? Ah! this unfortunate man, no doubt, thought that he could do this thing with impunity, because this girl was friendless. There is a just God, however, who administers justice in such cases, and he chose as the instrument of his justice, in this particular case, the poor unfortunate girl whose life had been forever blighted. That little girl (pointing to the prisoner), with that little hand poised the pistol which might, upon ordinary occasions, have been dis- charged a hundred times, or rather snapped (for they will not dis- charge one time in fifty), without any serious consequence, but with that toy of a pistol she was the instrument of punishment in the hands of God, and He took away her reason, and she stands here to-day secure from human justice. That overruling Provi- dence, without whose' consent not even a sparrow falls, brought punishment to the door of the deceased — brought it by the hand of her that he had ruined, and placed her in a position where she shall answer to Him alone for what she has done, and not to human laws. Something has been said by the gentleman who has just taken his seat, about attacks — attacks which have been made upon the deceased. Gentlemen of the jury, one of the most painful duties that ever devolves upon counsel, in the necessary defense of an accused person, is to throw censure upon those who are dead — to bring up their faults, their crimes, and perhaps their wickedness — but when it is necessary to the defense, to the true history of a transaction, how can it be avoided? Could we give you a true history of the causes of this sad tragedy without tracing the past relations between these parties? Could we stand here and do jus- tice to our client, and draw the veil over the transactions of that man's past ? I submit it to you, gentlemen, if we^could have done so; so far as I was concerned, I would gladly have done it, and I fee) assured that I speak the sentiments of my associate counsel. What attack, or what denunciation have you heard of that dead man, from one of us, with the exception, perhaps, of a single expres- sion, that was brought out by one of the counsel, by a most unwar- 76 MODERN JURY TRIALS. ranted attack upon our client from the prosecution ? Attack him? The gentleman ought to know that all attacks upon human con- duct are harmless, except when the weapons are furnished from the magazine of a man's own life. A man who leads a pure life, who deals fairly and honestly with his fellows, may be persecuted, may be hunted down, calumniated, but his character will only shine brighter for all that, if it can stand the test; and we know that so well that we would feel assured that an unwarranted attack upon this man by us would only recoil upon us, and do our cause an injury. But attacks are fatal where the conduct of the party him- self has furnished the weapons with which to make them; and we submit it to you, gentlemen, whether, in this case, the unfortunate deceased has not furnished everything necessary, notwithstanding the boast of the prosecution, in his opening speech, that he died without a stain? What have we heard of his dying declarations? Why did not they tell you what he saidj if he said anything? It is a singular fact that the prosecution has introduced no testimony as to that. I do not say there were any dying declarations, but there might have been, and there might not have been. He lived, you will remember, fifteen minutes. Attacked! Yes, he has been attacked, but not by counsel. Who, then, you may unthinkingly ask, attacked him ? The sworn evi- dence in the cause attacks him. His own letters attack him. His inhuman cruelty, in seeking to destroy the reputation of this poor girl, when he had resolved to desert her, attack him. His anony- mous letters attack him. His assumption of the relation of hus- band for a most worthy and estimable lady, under the solemn sac- raments of religion, occupying the position that he did to the accused in this case, attack him; and one who had sought to sus- tain him in his wrongs, and one who has been the partner of his cruelty, and I might also say the partner of his guilt, toward this young woman — even his own brother — attacks him. Gentlemen, you have more evidence before you to show you that the Rev. John C. Burroughs is the responsible cause of his broth- er's death than you have to show that this unfortunate girl was. And then, aeain, they say we have attacked the Rev. John C. Burrcughs! When did we attack him? Oh! somebody looked; Mr. Bradley's eye flashed in honest indignation at the halting man- ner of some of the prevarications of the witness. Guilty people are very sensitive about these things. I do not know that we have as yet attacked Dr. Burroughs' testimony, and I would not go one step to the right or to the left to attack it, if it were not my duty; but I know that I mean to attack it; and if I failed to do so, I TRIAL OF MARY HARRIS. 77 would be recreant to the duty that I owe to my client in this case. What! a doctor of divinity, who has come here and contradicted the statement of every witness in regard to the material points in this case! who has testified that his brother was not in Chicago upon a certain day, and therefore it was impossible for him to be at a certain place; who, knowing that this prostitute, Ellen Mills, knew the fact, and could either sustain or overthrow him, for he himself tells you that when a detective or a policeman told him that, with one or two hundred dollars he could get her out of the ■way, he made use of no expression of disapprobation — not to be attacked ? A reverend gentleman, seeking simply for justice and for truth, to thus make himself a silent party to the running off of a most material "witness for the defense, and then come here and attempt to swear away the facts upon which that defense was based! Attack him! Tes, we will attack him; and the justice of God, that took away his brother's life, will, in my humble ojsinion, bring to him his share of the punishment; for to him, a clergyman, rep- utation and credit are everything. If this trial does not condemn him with his congregation, and with all good Christian people in this land, then commend me to the standard of public sentiment in Chicago. Now, gentlemen, we meet the issue fairly. The killing is ad- mitted. The court has laid down the law that we must assume the burden of proof as to the insanity. We accept it. The court has stated the degreee of certainty with which we must establish it. I reply that we accept it. We will try to meet the issue. "Oh! how I loved him," is the words of this tender girl. If this young lady could go through all this, could bear all this, and yet endure the sight of him and control of her reason, of her conduct, she has a heart and a soul most obdurate. The mere state- ment of the case, gentlemen, is enough. Now, upon that evidence, all of which he heard, and upon the facts that came within his own knowledge, Dr. Nichols, an eminent physician, having charge of an insane asylum, possessed of great experience in this particular branch of science, has stated to you, repeatedly and distinctly, his sworn opinion, that the killing of Mr. Burroughs was the result of an insane impulse. Do you object to that testimony, gentlemen ? Are you so hungry for conviction in this case — do you participate so much in the feelings that have actuated the prosecution — that with the sworn testimony of this eminent physician, supported by that of every other doctor testifying in the cause, you can say that you require any further proof to satisfy you beyond a reasonable 78 MODERN JURY TRIALS. doubt, since such is the requirement of the law, that this girl was insane, in the sense we claim? We do not claim that she was gen- erally insane, as the prosecution insist upon having you believe. Have we not repeatedly stated that we did not claim she was even partially insane all the time; but that simply she was subject to sudden attacks, overwhelming paroxysms of insane impulses? The testimony of the doctor met the question fairly and fully, but the argument of the prosecuting counsel did not meet it all. He had nothing to say about the testimony of Dr. Nichols. I read from Ray's Medical Jurisprudence, page 60, section 45: "It is not enough that the standing of the medical witness is deservedly high in his profession, unless it is founded on extraordi- nary knowledge and skill relative to the particular disease, insanity. Lunatic asylums have so multiplied in our country, that patients of this class are almost entirely tak,en away from the management of the private physician, and confided to the more skillful conductors of these institutions; so that many a medical man may spend a life of full practice without having been intrusted with the care of a dozen insane persons. To such, therefore, a practical knowledge of the disease is out of the question; and thus the principal induce- ment is wanting to become acquainted with the labors of those who have enjoyed better opportunities. If a particular class of men only are thought capable of managing the treatment of the insane, it would seem to follow, as a matter of course, that such only are capable of giving opinions in judicial proceedings relative to insan- ity. True, in important cases, the testimony of one or more of this class is generally given; but it may be contradicted by that of others utterly destitute of any knowledge of the subject on which they tender their opinions with arrogant confidence, and the jury is seldom a proper tribunal for distinguishing the true from the false, and fixing on each its right value. An enlightened and conscien- tious jury, when required to decide in a case of doubtful insanity, which is to determine the weal or woe of a fellow being, fully alive to the delicacy and responsibility of their situation, and of their own incompetence unaided by the counsels of others, will be satis- fied with nothing less than the opinions of those who have pos- sessed unusual opportunities for studying the character and conduct of the insane, and have the qualities of mind necessary to enable them to profit by their observations. If they are obliged to decide on professional subjects, it would seem but just, and the dictate of common sense, that they should have the benefit of the best profes- sional advice. This, however, they do not always have; and, con- TRIAL OF MARY HARRIS. 79 sequent!}', the ends of justice are too often defeated by the high- sounding assumptions of ignorance and vanity." Just such testimony, then, as the law requires, we have given you, and it was no doubtful, no hesitating opinion that this learned and experienced physician gave you; and his manner was such as must have recommended his testimony to every impartial mind. We took the risk of that, and put the question to him, not Con- tenting ourselves with proving acts of insanity before, and acts of insanity afterwards, but we marched right up directly to the issue and put the question to him as to the precise moment of time when the homicide was .committed. He said that act was the result of an insane impulse. Do you believe it ? If you do, gentlemen, you must acquit this prisoner. My brother hoped "a Washington jury would maintain their dignity." Do you think it would be maintained by convicting an insane woman, because there is too much licentiousness in the town generally ? What kind of an appeal to a jury is that ? Way out in the far West, in the trial of little suits before a justice of the peace, I have heard appeals made to excite prejudices against a town of people; but I admit I was not prepared to hear such an appeal at the capital of the nation. A city of licentiousness ! If that be so, and a reformation is to begin, wait until you have before you some man of power and influence, and you will not have long to wait. The signs of the times indicate that. Wait until some unprincipled official, who has taken advantage of the disjointed state of the times to trample upon human liberty, upon human rights, and to disregard statutes, constitutions, and every sanction of liberty — wait until such men are dragged here, and then vindicate the law in Washington. In the meantime, let this poor, blighted, afflicted, ruined and persecuted girl go free. The law has no claim upon her. Let your verdict follow the partner of the deceased in this plot; and let Washington justice travel to Chi- cago, and unmask there, before a confiding and trusting congrega- tion and people, a man who wears the livery of Heaven to serve the devil under. Gentlemen, I am now through with this cause, and knowing, as I do, that I shall be followed by a gentleman, who will far more than supply anything I may have omitted, so far as I am concerned, I commit the case into your hands, with the most perfect and implicit confidence, that it will not take you long when you get this case fairly into you hands to record a verdict of Not Guilty. 80 MODERN JURY TRIALS. Remarks of Hok. D. W. Vooehees. Mr. Vooehees said: It is not necessary for me to attempt to increase your sense of the solemnity of the issue which is placed in your hands. Nor need I dwell upon the fact that this is one of the most remarkable cases ever submitted to a jury for trial. In many of its aspects it wears features more startling and extraordinary than we have hitherto met with in the annals of jurisprudence. There is no man in this court room, no one throughout this broad land, whatever his experience or profession may be, who has ever seen its like in all respects before. A few months ago, in open day, in one of the public buildings of this capital, and in the presence of numerous observers, a human being was shot down by the frail hand of the prisoner at the bar, and sent to his final, dread account. The homicide mentioned in the indictment was thus committed; and if it was deliberate, rational murder, then the blood of innocence is crying unappeased from the ground. But what are the elements which constitute this baleful crime? From that hour presaging woe to the human race, when the first man born of woman became a murderer, down to the present time, we have on record the frightful characteristics of the murderer. He is a being in whose heart the fires of malice and hate glow in perpetual flames, in whose face the image of God is blotted out, in whose eyes the light of mercy and love is forever quenched, who lies in wait like the tiger for his prey, and who strikes his unsuspecting and unoffending victim from motives of revenge or the lust of gain. Around such a being there centers every conception of horror which the human mind can embrace. All nature, animate and inanimate, the very earth and sky, recoil from him who bears the primal curse, and there is no communion for his blackened spirit this side of the abodes of the lost. But turn from this faint picture of a real murderer to the deli- cate, gentle being before you. We are told that deliberate and atrocious murder has been committed and that the criminal is in court. We are told that a brutal assassination has been accom- plished, and that the lurking and ferocious assassin is in our pres ence. Where, gentlemen, where ? Am I to be told that this heart- broken young girl, with her innocent, appealing face, and look of supplicating dependence on yon, is the fierce and malignant monster of guilt which is described in the indictment and in the inflammatory language of the prosecution ? Am I to be told that her heart conceived and her hand executed that crime for which the Almighty marked the brow of Cain ? TRIAL OF MARY HARRIS. 81 Let us pause and reason together for a few moments on a prim- ary question in this case. The life of this defendant, from the days of her early and happy childhood to the present hour, has been investigated and laid open before you. Every trait of her character, all the general incidents of her conduct since she was ten years old, have been elucidated and detailed in your hearing. Of what vice has she ever been guilty? In what immorality has she ever indulged ? Not one, at no time and under no circumstances. Her life has been amiable, kind, affectionate, blameless, and pure. Troops of friends, of the best and most irreproachable in the land, have gathered about her in her quiet sphere at every stage of her checkered existence. These files of depositions declaring all her ways for nearly ten years past attest these facts. Then, at the very threshold of this case, you are to answer this question: Can a young and generous mind, wholly uncontaminated with vice, unsullied and unstained by contact with the evil practices of life, without previous training even in the contemplation of crime, at once, while in a healthy state, in the undisturbed enjoyment of all its faculties, incur that awful grade of guilt at which civilized human nature in all ages stands aghast? Is it within your experience that the soil of virtue bears spontaneously the hideous fruits of vice ? Are there no gradations in human character and conduct? Where is the hardened criminal who ever ascended the gibbet in expiation of his offenses who has not marked his downfall from small begin- nings, increasing gradually and swelling in volume until he was- hurled onward to the commission of gigantic crimes for which the law claimed his life as forfeit ? And yet you are called on to believe that this defendant, at one single bound, sprang from the paths of virtue, gentleness and purity, without any intervening preparation, to the highest and most revolting grade of guilt and ferocity known to human society. Those who have predetermined her guilt and passed a verdict in advance of the evidence and the law, may indulge in this absurd and repulsive philosophy. They may cherish this libel on human nature. And, in doing so, they may as well go further. Let the school-houses be torn down and the churches abandoned. The instruction and moral culture of youth are useless and in vain. The precepts of morality and the principles of religion afford no security to the minds of their pos- sessors from the sudden, instantaneous development of the most appalling wickedness. In the name of reason and universal experience I utterly repudi- ate this shocking theory, which the prosecution is forced to embrace before it can proceed a single step against the life of this girl. In 6 82 MODERN JURY TRIALS. the name of undefiled and virtuous human nature I repel it. In the name of innocent childhood and unstained womanhood, in the name of your own dear ones at home, I pronounce it a slander upon those holy attributes of the human heart which tend upwards, and ally us with heaven. I deny that Mary Harris is a criminal. I deny that any murder has been committed. I deny that this young prisoner is responsible for the death of A. J'. Burroughs. I assert that his death was not a crime. He was not slain in viola- tion of law, for offenses against the law can only come by those who possess a sound mind and an unimpaired intelligence. And now, invoking your attention, I shall proceed, to show you from the story of her life, which must constitute her defense, that it is not your duty to lay your hands in further punishment on the suf- fering head of Mary Harris, but that it will rather be your pleasing task to open her prison doors and bid her go free, attended by the charitable blessings of all Christian people. Who is this unfortunate defendant, and whence came she, when her weary feet bore her still more weary heart ,to this crowded capital? A short time since, and but few here could have answered; but now all is known. We see at a single glance a gliding, panoramic view of the life of an earnest, devoted girl. Our eyes first rest upon a point nearly ten years ago. At this time Mary Harris was a beautiful and happy child, some ten years of age, in the town of Burlington, Iowa. In that hour of tender childhood the evidence shows that Burroughs first met her; and would to God that in that hour she had died! Gentle memories would have clustered around her peaceful grave, and this bitter cup, whose very dregs she is now drinking, would have been spared her. There is a mercy at times in death, for which the stricken soul longs and gasps as the parched and feverish earth does for the cooling rain. But He who notes the sparrow fall, and has a design in all the ways of men, ordered it otherwise; and she is here to-day weary and heavily laden, but humbly submitting to the Providence by which her own will has been overruled and her actions guided. Burroughs at this time, gentlemen, was a man of comparatively mature age, more than twice her senior — as he afterwards in his letters declares — almost old enough to be her father. She sat upon his knee in the purity of unconscious childhood. I speak now from the evidence furnished by his own letters of a later period, and also from the testimony of those who witnessed at that time their constant intercourse. He proposed to mold and fashion her mind by the superior force of his own age, experience, and will, in order that she might, at a future period, make him a suitable wife. TRIAL OF MARY HARRIS. 83 There is no room to doubt upon this point. Let those ninety-two letters here produced in court make their appeal. They speak in no uncertain tone. They show us robust, developed manhood seeking the ascendancy over a confiding child. They show us maturity and strength striving for the mastery over inexperience and weakness. He assumes even a paternal interest, and teaches her young heart literally to leave father and mother and cleave unto him. We hear it stated that no marriage engagement ever existed between them. The miserable desire to inflict indiscrimin- ate punishment upon the innocent as well as the guilty would even deny this plain fact, which is established by almost every line of the evidence to which you have listened. The prosecution itself proved that at one time the very day was fixed for the fulfillment of their oft-repeated vows. Under these circumstances, need I dwell at length upon the imperious nature of the influence which he obtained over her? The child became absorbed in the man. What else could happen? They walked the pathway of life hand in hand for many long years of hope and fond anticipation. He taught her to regard him as her future destiny. He was all the world to her. Her heart opened and expanded under the influence of his smile as the bud becomes a flower beneath the rays of the sun. She grew up to womanhood in unquestioning obedience to his will. The ties by which she was bound to him were the growth of years, and em- braced all the strength of her whole being. And did all this have no effect on the subsequent condition of her mind when disaster came ? He had carried her to the highest pinnacle of happiness and hope. She stood upon the summit of joyous expectations, and all around her was sunshine and gladness. Well might she exclaim to my learned and eminent brother, as she paced her prison floor, "Oh! Mr. Bradley, you should have seen me then; I was so happy !" Yes; though poor and humble, yet she loved and was beloved, and it was enough; she was content. For in that hour, when a virtuous woman feels for the first time that she pos- sesses the object of her devotion, there conies to her a season of bliss which brightens all the earth before her. The mother watch- ing her sleeping babe has an exclusive joy beyond the comprehen- sion of all hearts but her own. The wife who is graced by her husband's love is more beautifully arrayed than the lilies, and envies not the diadems of queens. But to the young virgin heart, more than all, when the kindling inspiration of its first and sacred love is accompanied by a knowledge that for it in return there burns a holy flame, there comes an ecstacy of the soul, a rapturous 84 ' MODERN JURY TRIALS. exaltation, more divine than will ever again be tasted this side of the bright waters and perennial fountains of paradise. The stars grow brighter, the earth more beautiful, and the world for her is • filled with a delicious melody. This, peculiarly, is woman's sphere of happiness. There she concentrates all the wealth, the unsearch- able riches of her heart, and stakes them all upon the single hazard. If she loses, all is lost; and night and thick darkness settle down upon her pathway. It is not so with man. His theatre is broader. No single passion can so powerfully absorb him. A variety of interests appeal to him at every step. If disappointment overtakes him, a wide and open horizon invites him to new enterprises, which will relieve him of that still, deep, brooding intensity which is the pregnant parent of woe, insanity, and death to woman. I am speaking now of general principles; but every word that I have said is applicable to the case of Mary Harris. For when her •parents, distrusting Burroughs, and fearing that very treachery which afterwards blasted her life as well as his own, endeavored to break off the connection and wed her to another, who, from their previous history, could for a moment doubt the result ? He went to Chicago, and advised her to do the same in order to be near him. Gentlemen, the language which faithful woman holds to the object of her love when the hour of separation is threatened is very old and very beautiful: " Entreat me not to leave thee, or to return from following after thee; for whither thou goest I will go, where thou lodgest I will lodge: "Thy people shall be my people, thy God my God; where thou diest there I will be buried: " May the Lord do so to me and more also if aught but death part thee and me." It was in this spirit and under these circumstances that she came to Chicago and resided with the Misses Jane and Louisa Devlin. It was Burroughs still shaping her destiny. It was the man still pointing the course for the child to follow. And shall this be imputed to her as a fault ? Will this prosecution, fed, as I believe it to be, from the springs of private malice, assail her because she trusted Burroughs and confided in his honor? Had Burroughs been faithful to his vows, as he was called on to be, by every attri- bute which ennobles manhood, by every law, human and divine, then this unhappy girl would have been to-day his respected wife, and the world would have applauded her sublime devotion to him when the truth between them was sought to be poisoned by whis- pering tongues. Now, because he was false and broke her heart TRIAL OF MARY HARRIS. 85 you are called upon to believe that this act abased her virtuous brow into the dust of shame. I repel this calumny. Not only do I pronounce it a slander upon Mary Harris, but it is equally a slan- der upon the truth, fidelity, and virtue of womanhood. She did no more than what the proudest, the purest,- and the best have done in all countries and at all times. She endowed him upon whose arm she leaned with the principles of justice and honor; she crowned his brow with a constellation of all the virtues and then trusted him. She turned her back on home, kindred, and friends, and with him faced the world alone. We are told that no stain shall rest upon the name of the deceased. The leading counsel for the Government, at the very opening of this trial, announced, with singular emphasis, as if anticipating your conclusion, that he was a Christian who had lived and died without blemish or reproach to that sacred character. His brother, the Rev. John C. Burroughs, says that his object here is to relieve his name from the slightest opprobrium. Thus we see the purpose of this unnatural struggle for a conviction, in the face of law and evidence, which for more than two hundred years have prevailed in the defense of the children of misfortune and providential afflic- tion. Mary Harris is to be condemned, to be carried to the horrid gibbet, that appalling machinery of death, terror, and lasting ignominy, in order that the conduct of A. J. Burroughs shall stand triumphantly vindicated! I do not wish to assail the dead; but is it expected that this monstrous assumption in favor of crime shall be passed in silence ? Shall this trial impress upon the public mind, as a lesson for future action, that it is a part of the Christian character to win the love and confidence of a child, to cultivate her affections as years advance, engage to become her husband, induce her to leave her home in order to enjoy his society, and to escape from another proposal of marriage; and then, after seven years of hope deferred, to dispel all her bright dreams of life by quitting her in a moment, by dropping all connection with her withdut a word of explanation, by marrying another woman and turning his back on her forever ? # * sjs * * * * Time passed on with this defendant, bearing her onward to a region of horrors, to the scene of her dismay and ruin; and I must move along on the melancholy tide, and approach the sorrowful hour. We have now traced these parties for years. Burroughs had carried her hopes to the highest elevation. She was lookino- forward to a future filled with honor and with delight. It was of his creation and there was not a cloud within the scope of her vision. 86 MODERN JURY TRIALS. In such a serene and happy moment as this, with no note of prepa- ration to her tender and susceptible mind, with no sign of warning, the blow descended upon her naked head, shivering every hope with which her heart was tenanted, and dashing the temple of reason itself into ruins. Is this statement the work of fancy on my part? Is it not the sad, literal truth? I appeal to you who have heard the evidence. Counsel have seen fit to attribute pow- ers of eloquence to me, which I neither possess nor affect. I can only repeat to you a plain and simple story of wrong, misery and madness which you already know, and which is far more eloquent in itself than any words I can employ. Seven years of love were spurned in an instant. Seven years of patient hope were turned in a moment to despair. He had lifted her up almost to celestial heights, only that her fall might be sufficiently great to dash her to pieces. Though without sin, yet she was cast out from her place of blissful abode and fell like the sun of the morning to hope no more forever. In order to understand the effect of disappoint- ment and misfortune, we must fully consider the condition of the mind when the shock came. Adopting this rule in the present instance, and we shudder at the bare contemplation of the mental agony of the defendant when she realized that she was abandoned by him for whom she had abandoned all but her honor. Gentlemen of the jury, this Christian minister by profession, swears positively that his brother did not write these letters. But does he not stand before this court, before this jury, before the world, and before God, convicted, upon his own testimony, of sup- pressing the very evidence which would have settled that question forever? There is but one conclusion to be drawn from this fact. These two absent witnesses would have sustained Louisa Devlin; and Dr. Burroughs and this prosecution knew it. They would have described the deceased here in this court as they did in Chi- cago. This is no forced assumption of mine. It is a well-settled conclusion of law. The suppression of evidence is a grave and almost conclusive presumption against the party that resorts to it. This is more especially true when, as in this case, the prosecution is sustained by the treasury of the Government in enforcing the attendance of witnesses. What is the object of a trial in a court of justice ? We are here in search of truth. We have, each one of us, under the solemnities of an oath, invoked the name and help of God in the discharge of that duty. We stand on holy ground. Life, life, that mysterious gift of the Creator, is the issue at stake. Its awful import should inspire every breast with a religious desire to aid this court and jury in arriving, if possible, at the exact truth. TRIAL OF MART HARRIS. 87 Then, what shall be said of one who admits he has done so ? I learn that it is said that no attack can injure Dr. Burroughs; that his position is so exalted that no shaft can reach him. I have no desire to indulge in personal assaults; but no position in life, no assumption of superior piety and virtue, will ever shield the char- acter of a witness who, in a trial involving life itself, conceals material evidence, and then attempts to supply its place by his own unsupported oath. Nor need counsel, in such an instance, waste their time in denunciation, for no language which our tongue could utter could paint his conduct in colors so dark, in a moral deform- ity so hideous, as he himself has painted it by his own testimony. Such a witness becomes at once powerless for evil before an intel- ligent jury. He is dead by his own act. It will be asked, however, what motive Burroughs had to thus compass the destruction of one whose image, if he was human, mnst have been blended with his tenderest memories, with the most sacred associations of his heart. A refuge will be sought in this inquiry, from the irresistible pressure of the proof which thus far shatters all the assumptions and theories of the prosecution. Why — why did he do this deed without a name for cruelty and perfidy ? You will be told that all the actions of sane people have their intel- ligent reasons. This is true; and the history of this case gives a ready, an instant answer to this inquiry. His motive was not the gratification of passion. Lust was not one of the elements in his calculations. Base and wretched as are such motives of action, yet, if it be possible, those that actuated Burroughs were still lower and more depraved. Look calmly at his situation. From Mary Harris he was about turning away without a word. He knew that such an act would be to her as appalling as the voice of doom His conscience made him a coward. He could not face her with the story of his stupendous crime. He could not look into her confiding eye and tell her that his whole life towards her had been one mighty falsehood. Human nature, however depraved, was not equal to such a task. The past was filled with voices of reproach and terror to his guilty heart. The future frowned on him full of menace and warning. The present was haunted by a sense of con- scious wrong from which he tried in vain to escape. He knew, too, that he was in her power. These letters which are here in court, and many others not here, arose in his memory. He recalled that one in which he says: "And Mollie, if from any reason what- ever I may change my views or feelings towards you, and I should feel like entering into a matrimonial alliance with any one else than yourself, I will promptly advise you of it." He was about taking 88 MODERN JURY TRIALS. i that fatal step, but he had. not the manly honor to fulfill his prom- ise. He, however, like one who plans the commission of a crime, took measures for his escape. He was to be married in a few days to the unhappy lady who now mourns in her widowed home, and whose melancholy fate I deeply commiserate; and he knew that, when that fact reached the ears of Mary Harris, her cries, her sobs, her voice of wailing would ascend like perpetual lamentations in the air. She might, in her deep distress, utter his name to the world in such a way as to stain his character as a Christian. She might come near him some day, and remind him that he once took a child from her parents' roof, and broke her heart. Aye, it was in- her power to denounce him as false and infamous at all time and places, to pursue him, if she desired, as an avenging shadow, to rob him of peace, and to turn his days and nights into fear and alarm. But if her foot once crossed the threshold of shame she was in the fowler's snare and at his mercy. This evidence can have but one purpose. It aims at the life of the prisoner. It in no wise touches the character of the deceased. It is a bold demand upon the part of Dr. Burroughs for blood. It is the key which unlocks and reveals the meaning of his presence, and of all his evidence in this case. O! spirit of eternal justice, what more is this poor, shivering victim of man's cruel perfidy to suffer! Is it not enough that one drove her mad, and caused her to cry out — " I am bound Upon a wheel of fire, that mine own tears Do scald like molten lead ? " And must the brother come now, and struggle to drag this wan, emaciated and stricken being to an awful and ignominious death ? Is he not satisfied with the ruin already wrought? Are you not ready to exclaim, "Spare her, Dr. Burroughs; oh! spare her. Spare her for the sake of the name you bear. Enough she has suffered in that name. For the love of God and for the sake of His mercies spare her broken life. Do not press and trample on the fallen and undone. She may meet you no more in this world. You may for- got her mortal agonies in the honeyed commendations of your fol- lowers. But there comes a day when the one who murdered her peace, and the one who now seeks to murder her life, will both meet their victim in the presence of the Great Judge, and in a court above the sun, where misfortune is not a crime, and where earthly distinctions fade away; where the poor are rich, and the merciful blessed; where the feeble are strong, and the oppressor's rod is broken; and in that awful presence they will be called to TRIAL OP MARY HARRIS. 89 lanswer why, at their hands, Mary Harris was beaten and scourged to madness and death. Spare her; oh! spare her! lest, if you suc- ceed in your purpose to slay her here, she will confront you in the eternal world as a bright angel, with her fair hair dabbled in her own innocent blood, shed by your hand, and there shriek into your shrinking ear, 'False, fleeting, and perjured! '" Alas! how often the great rules of right — eternal and unchange- able right — are perverted in man's administration of justice! How often the accused should be the accuser! How often the unoffend- ing sufferer bears the punishment due alone to others! What a scene is this in- which we are all engaged! Here, before you, sits one of the feeblest and saddest beings ever born of woman — a mere helpless atom, buffeted and driven here by angry and malignant winds. The babe in its mother's arms was never more unconscious of the evil purposes of crime, than the heart of this pale and wasted prisoner. Yet the freezing terrors of the law sur- round her on all sides; the judge upon the bench, with wise and patient calmness elucidating its principles; this jury, listening to the story of her blighted life, and solemnly weighing the evidence; this crowded and anxious audience watching the result; and men, bearded men, earnestly discussing the issue, whether she may live or die! And why all this? Because, as she said to you [turning to Mr. Bradley], "I have been beaten and scourged without cause." Yes; bruised, maimed and mangled, until the divine gift of human reason gave way, utterly powerless, with less than the instinct of the poorest worm, that resents in blindness the heel that tramples it to dust. And yet this is the being against whom we are to listen to a hue and cry as if she were a monster, a Borgia, or a Hecuba ! Gentlemen, I sometimes tire of life when I see wrong and injus- tice spreading their prosperous branches as the green and flourish- ing palm; when those by w%om offenses come in this world, who prey upon virtue and turn it into vice, who sport with innocence in order to poison it, who make a mockery of love and a plaything of truth, go not only unscathed of the law, but even applauded by the hired panderers to a depraved and debauched public sentiment. Whatever of philosophy I have takes a painful and gloomy form, and I feel that I could say with the great dramatist: " Out, brief candle, ' Life's but a walking shadow; a poor player That struts and frets his hour upon the stage, And then is heard no more; a tale told by an idiot. Full of sound and fury, signifying nothing." 90 MODERN JURY TRIALS. We behold, for once, at least, in our lives, a human being totally transformed. The change is complete in every respect. Phys- ically, she is no longer the same. Her former buoyant health withers away. The bloom of her face dies out, as it were, in a single night. Her already slight frame becomes still slighter. Sleep, the gentle nurse in whose arms the peaceful invalid wooes the returning spirit of health, fled from her eyes. Burroughs had murdered sleep; and her mind was fixed with an appalling intensity on the memory of the past, which was to her brain as a consuming fire. From this horrible spell there was no escape. No; and hence we see her mind developing its changes in equal pace with her body. It is the seat of the canker, which blighted her whole system, and which no medicinal balm can reach. There was lodged that perilous stuff which no drug can purge from the distracted breast. According to the evidence, she was up to that period the merriest and the most joyous of her circle. The world, the glad earth, the ojaening day, the bending sky, and the kind faces of friends, were all beautiful to her, and she enjoyed the few years of her unclouded happiness. But now the laugh was gone; no merriment kindled in her eye; the future to her was dead; she lived in the past and it was the charnel-house of all her hopes, and over it hung the mourning cypress. I am reading her condition to you by the light of the evidence alone. I am showing you that effects were following causes. She grew weary of life. Who does not, when all that gives life its value has perished ? This is, in itself, one of the incipient stages of insanity. It .is the offspring of that " Black Melancholy " which all authors designate as one of the parent springs of madness. And when this defendant rose that morning from her bed, and murmured her farewell to the friend, whom she supposed to be asleep, had she succeeded in taking her "walk by the lake shore," in the darkness before daybreak, she never would have been here on trial. The winds and waves would have sung her requiem. There might have been an inquest, and the usual verdict. [Counsel cited many authorities and read from experts' testi- mony at considerable length, and concluded]: Here, then, is the whole defense established by the highest evi- dence known to the law. The opinion of an expert is a fact in the case. No other witness can give any opinion at all. Dr. Nichols, therefore, proves as a fact that, from moral and physical causes combined, the defendant has labored under paroxysmal insanity, TRIAL OF MARY HARRIS. 91 and that the act for which she is now on trial was committed during a paroxysm, and under an insane impulse. You have no legal right to find a verdict contrary to the testimony of Dr. Nichols, unless he is unworthy of belief,'or has been successfully contradicted by other competent witnesses, whose opinions are entitled to greater weight than you attach to his. On this propo- sition I rest securely. And on the uncontradicted statement of this scientific witness, I risk the life of the prisoner. He is the Saint Peter of my faith, and on this rock I build the defense; and neither the power of the public prosecution nor the gates of pri- vate malice shall prevail against it. But we are met at this point with a proposition by the prosecu- tion which I undertake to say is without a parallel in the courts of any country which has been blessed with the light of civilization. Utterly borne down and crushed by the evidence of Dr. Nichols, the gentlemen who represent the Government boldly and without a blush declare that the opinions of men who, like him, have given their lives to the study of the mind in all its various and mysteri- ous phases, are less reliable in the discovery of insanity than the opinions of those who have bestowed no particular attention on this great and difficult subject. The cry of " mad doctors "has been raised, and we heard an appeal against them in favor of what were styled "common sense doctors." Gentlemen, I feel humili- ated that I have listened to such language from such a source. Is there such an unappeasable rage to take the poor life of this pris- oner that, in order to do it, these distinguished gentlemen are will- ing to resort to the lowest and most pernicious arts of the profes- sion? Do they propose to deride the disciples of learning, the devotees of science? Will they stand up here in the noonday of human progress and enter the lists as the avowed champions of ignorance? Who are the "mad doctors" of the world at whom this persistent and systematic sneer is levelled ? They are those who have made the subject of insanity a specialty, who have given their days and nights to incessant and laborious thought, who have struggled with painful toil to alleviate the direst woes of their fellow men, to cure those wounds which the lash of misfortune inflicts, and to pluck from the diseased mind its rooted sorrows. And is it found necessary to stamp such characters with odium in order to convict Mary Harris? Shall we pluck from the scientific heavens their brightest and boldest luminaries, and accept darkness, gloom, and mist again ? Shall we strike down that blazing galaxy of genius, toil, and progress, where the names of Winslow, Esquirol, Ray, Gall, Spurzheim, Rush, Combe, Prichard, Ellis, Hoffbauer, 92 MODERN JURY TRIALS. with others of the shining host, are burning as stars on the front of the sky; and into whose glorious companionship we anticipate but a few years by introducing now the name of Dr. Nichols him- self ? These are they against whom the prosecutors invoke the aid of ignorance and prejudice. They have certainly mistaken the age in which they live. The district attorney is nearly two cen- turies in the rear of the still advancing column of human improve- ment. There was a period in the world's history when this assault on men of science would have relaxed the dull features of stupidity into a smile and caused blind superstition to nod its ugly head with approval. There was a time when darkness rested upon the face of the waters in the scientific world, when the voice of learn- ing had not yet brought order out of chaos, when courts of justice were nurseries of bigotry, when mental derangement was judicially interpreted as the possession of a demon, and the sufferer declared to be in familiar communion with the Prince of Evil. We hear much said in regard to the defense of insanity. Many speak of it as a plea manufactured by counsel. It is, however, in one vital respect, like all others — it must be supported by proof or it fails to the ground. Have we manufactured the positive and direct testimony of every medical witness introduced on both sides ? Is this our handiwork? I submit to you and to the candid judg- ment of the country, that if Mary Harris can be convicted under this evidence, if Dr. Nichols can be broken down in this court, not by contradiction, but by declamatory appeals to prejudice, and if finally, the unbroken chain of scientific testimony can be put aside as naught, then the great and settled principles of medical juris- prudence are a delusion and a snare, and the infirmities of the intellect, occasioned by misfortune, constitute no defense for vio- lent and irrational conduct. And why, without one solitary witness to support their theory of the ;ase, do the prosecutors so hunger and thirst for the convic- tion of this most desolate and bereaved of sorrowing mortals? Why do chey clamor so fiercely against the barriers of the law and of the evidence which encompass her about, in order to drag that sick and fragile body to a miserable death ? Is it punishment theyj seek ? She has suffered more already than the King of terrors in his most frightful form can inflict. If she had been broken on the wheel, her limbs disjointed, and her flesh torn in piecemeal by the most fiendish skill of the executioner, her tortures would have been merciful compared to the racking which sunders into fragments the immortal mind. There is no arrow in Death's full quiver that can TRIAL OF MARY HARRIS. 93 give this young breast a new sensation of agony. She has sounded all the depths and shoals of misery and pain. She has lived in " A whirling gulf of phantasy and flame." Restore her by your verdict to the soothing influence of friends, of home. Let her go and lay her aching head on the maternal bosom of that Church which for eighteen centuries has tenderly minis- tered to her children in distress. Let her go and seek, in the love and mercy of the Father of us all, consolation for the cruelty and inhumanity of man. * * * But it is claimed that a conviction must be had for the sake of example. You have been told that the people of the District of Columbia demand it. I would not bring such an argument into court, but when here I will meet it. If it be true that you desire examples for the correction of vice and the preservation of moral ity, I pray you not to commence with the humblest, the feeblest, and the most helpless. But I deny that the condemnation of the defendant is demanded by the people of this capital. Who are they who ask her blood at your hands ? I know this people, and to some extent I think I may speak for them. I have been the recipient of their constant kindness while in their midst, and as a representative in Congress I have, in return, dealt with them in a spirit of liberality whenever I have known their wishes. You were told that the defendant came here from a distance — that the States were pouring their criminals in upon you, and therefore she must suffer as a warning to others. Such a statement is unjust to your people. You want justice, and justice alone, administered upon all; and who believes that this girl's life is required as an offering upon the altar of public justice? I repel this imputation upon the intelligence and humanity of this kind and hospitable district. When you are discharged from your protracted confinement and return to your homes, as you will in a few hours, ask those whom you meet there, whether they desired you to cut the feeble thread of this girl's life by your verdict. I will abide by their answer. To no one has she appeared as the criminal, save to those who con- duct and inspire the prosecution. To all others in your midst she has presented the sad spectacle of calamity and misery. Her purity, her gentleness, her guileless truth, shining out in every word and act, have won to her side in this dark hour, your oldest, your best, and most honored citizens. Her prison abode has been- brightened. by the presence of the noblest and purest of her own sex, and delicate flowers from the loftiest station in the world have 94 / MODERN JURY TRIALS. mingled their odors -with the breath of her captivity.* Men ven- erable in years, and strong in their convictions of the principles of immutable right, have been drawn to her assistance by an instinc- tive obedience to the voice of God commanding them to succor the weak, lift up the fallen, and alleviate the distress of innocence. And now for Mary Harris, and in the name of Him who showered His blessing on the merciful, who spoke the parable of the Samari- tan, who gave the promise to those who feed and clothe the stranger in their gates, and who visit the sick and them that are in prison, I thank the people of the capital. Add one more obli- gation for her to remember, until the grave opens to hide her from the world. It is in your hands to grant. The law in its grave majesty approves the act. The evidence with an unbroken voice demands it. Tour own hearts press forward to the discharge of a most gracious duty. The hour is almost at hand for its perform- ance. Unlock the door of her prison, and bid her bathe her throb- bing brow once more in the healing air of liberty. Let your ver- dict be the champion of law, of morality, of science. Let it vindi- cate civilization and humanity, justice and mercy. Appealing to the Searcher of all hearts, to that omnipresent eye which beholds 3very secret thought, for the integrity of my motives in the conduct of this cause, and for the sincerity of my belief in the principles which I -have announced, I now, with unwavering confidence in the triumph of innocence, surrender all into your hands. Closing Remakes of District- Attorney Carrington. Gentlemen op tiie Jury — You see before you on trial a woman. It is a case somewhat unprecedented in the history of this tribunal. I plead the cause of woman. Go to yonder churchyard. See that mother weeping over the honored grave of her only boy. He has fallen in his country's cause. Who is she? Nobody, in compari- son with Mary Harris, the heorine of the day. See that wife dif- fusing life, light, joy, and hope around the family circle — -the idol of a husband's heart and the guardian angel of her children. Her little curly-headed girl is kneeling by her side, and repeating her evening or morning prayer. Rise from your knees, my pretty child; you are wrong. When your little heart is wrung, don't go, as your hymn-book says, and tell Jesus. Arm yourself with a * It may not be improper to state that Mr. Voorhees here alludes to a beautiful bouquet sent to the prisoner by Mrs. Lincoln, before the White House had been darkened by mur- der, the center flower of which signified, in botanical language, " Trust in me." TRIAL OF MARY HARRIS. 95 deadly weapon, and avenge your own wrongs with the red hand of violence and of crime. Mary Harris, the model of female excel- lence, held up before the public for the admiration and imitation of our mothers, wives and daughters, has said that the ladies of Chicago carry deadly weapons and avenge private wrongs, whether real or imaginary, by private means, and we intend to introduce this fashion into the city of Washington. Permit me here to say, that if the voice of woman could be heard — gentle, lovely, virtuous woman — she would denounce this slander of Mary Harris and the Devlins as an insult to every honest and virtuous lady in the land. I yield to no living man in admiration for true female character. I have known the inexpressible tenderness of a wife's, sister's, and a mother's love. You have all. We each have seen the noblest exhibition of true female character during the unhappy strife which has existed in our country for the last four years. Did you ever go to yonder hospital ? See that young man. He is pale, attenuated, and emaciated. He has received some terrible wound, while fight- ing in his country's cause. He is far away from family and friends. The agents of the Government are doing all that humanity and duty can suggest for his comfort and relief, but he is not satisfied. No kind mother stands by his bedside to cool the fevered brow. But hark! He hears woman's gentle voice, perhaps one which he has never heard before, but it is woman's voice. It falls upon his ear like the name of home in some distant land, or rain-drops in a thirsty desert. She administers to his wants, and whispers words of comfort and of consolation. He revives; he shoulders his mus- ket and strikes another blow for his government and his flag. Per- haps his last hour has come. Ever faithful, gentle woman, points him to a Saviour's dying love; and as the world recedes from his view, like a true and valiant soldier of the cross, he triumphs over death and the grave. When the noble daughters of America were kneeling by the bedside of the dying soldier, where was Mary Harris ? That was a time when an appeal was made to every woman who had a heart to love her country and her race. Where, then, was Mary Harris, the model of female excellence ? Arming herself with this instrument of death, practicing the use of deadly weapons, going in company with one of the Devlins to Quincy street to a house of assignation without a protector, and at last imbruing her hands in the blood of one who had drawn his sword in his country's cause; and you are called upon to approve, justify, and applaud this cruel and bloody deed. Are we Christians ? Do we live in a Christian age, a Christian community, and do we wor- ship the Prince of Peace as the only true and living God ? Gen- 96 MODERN JURY JURY. tlemen of the jury, have you considei-ed the awful responsibility that rests upon you ? I have, and I pray that God may give me grace to discharge my duty. Appeals have been made to your' sympathies; and that is all, as I will show. Sympathy! sympathy! sympathy! and nothing else, and with unusual zeal and eloquence. Good Heaven! Behold what an array of counsel. In Joseph H. Bradley you behold the Ajax Telemon of the defense. In my friend William Y. Fendall you behold the young, the ardent, the armorous Tydides, not cast- ing his javelin at the Goddess of Love as she flies through the air on her way to heaven, but, with his armor off, kneeling at her feet. [Laughter.] In Judge Mason you behold the sweetly speak- ing Nestor of the Grecian camp. [Laughter.] In Judge Hughes the wise, the prudent, the cautious Ulysses. [Renewed laughter.] In the Hon. Daniel W. Voorhees you behold the fierce, implacable, irresistible Achilles [laughter], and even old Agamemnon (point- ing to the judge on the bench) himself, can never look at the gen- tle sufferer without a sigh expressive of his sympathy; and there sits the lovely Helen, bathed in tears, surrounded by her female attendants, urging on these sturdy warriors to deeds of superhu- man valor. Here I stand, aided only by my efficient and accom- plished assistant. Gentlemen of the jury, am I not an object of commiseration ? I saw some of you crying, but I think you cried in the wrong place. Were you concerned for me ? 0! no! gentlemen, don't be alarmed. Courage, gentlemen! I stand clothed in celestial armor? behind the broad oegis of the law, and their javelins fall harmless at my feet. I hold up the law, and thus I roll back the tide of sympathy that has been pouring into the jury box. I remind you of your solemn oaths, and then you dry your tears, and nerve your- selves to the discharge of your stern and solemn duty. Now, gentlemen, as my friend, Mr. Wilson, said, what do we care for Mary Harris ? So far as she is concerned, you may put her in a bandbox and send her home [laughter] — not to the Dev- lins, however — God forbid! — [renewed laughter] — but to her father; and I will tell you, before taking my seat, how it can be done without doing violence to any man's conscience. Gentlemen of the jury, the curtain rises. The scene is laid at a boarding house in the city of Chicago. The heroine of the bloody tragedy makes her appearance — a good, sprightly, black-haired girl. She was without either father or mother at that time. It is then she forms the acquaintance of Louisa Devlin, another beauti- ful, charming and accomplished lady. Louisa Devlin invites her TRIAL OF MART HARRIS. 97 to go to her millinery establishment. Prompted by an " insane impulse," she accepts the invitation. [Laughter.] What sort of a millinery establishment was it? I wanted to find out, and in the most courteous .and respectful manner, for no one is more courteous to a lady than myself, I asked her how many young ladies she had in her employment. She threw herself back on her dignity and said, " That is my business, and none of yours." There is Mary Harris in a millinery establishment, the character of which the pro- prietress is ashamed to describe. Judge Hughes — May it please your honor, I dislike to interrupt counsel, but where, in a closing argument, the evidence is clearly misstated, an interruption is not only tolerable, but it is the duty of counsel, whose client is affected thereby, to so interrupt. There is no evidence here whatever as to the character of Miss Devlin's house. It is true the district attorney did ask her how many per- sons she employed in her house, and she replied, "That is my busi- ness." An appeal was made to the court, and the court directed her to answer the question, but a discussion springing up at the time, the question was lost sight of, and no answer was given. The District Attorney — May it please your honor, I did not interrupt counsel in their argument, and I hope they will not in mine. If I misstate the evidence, which your honor knows I will not do intentionally, I have no doubt you, sir, will correct me. The Cottrt — A counsel, in the closing argument, knowing that there is no one to come after him, ought to studiously keep himself within the prescribed limits, unless he wants to be interrupted at every stage. lie ought not to pervert or misstate the evidence — I do not mean to say that you have done so in this case — but I da think that- there is nothing in the refusal of Miss Devlin to answer that question to justify the suspicions which have been inferred by the counsel. The District Attorney — Is that a question of law, your honor ? The Court (with emphasis) — It is a question of law, sir. The District Attorney — Gentlemen, after the attack which has been made upon Dr. Burroughs — The Court (very earnestly) — You shall not retaliate upon Miss Devlin for an attack upon Dr. Burroughs. You must confine your- self to the legitimate application' of your remarks to the evidence of the Misses Devlin. It is an abuse of your position to make such, an attack as that upon such grounds. The District Attorney — What had I said, may it please your honor? The Court — You know, sir. 7 98 MODERN JURY TRIALS. The Disteict Attorney — You had not heard, sir, for I had not completed the sentence. What I intended to say was this: That after the attack which had been made upon Dr. Burroughs by the learned counsel, had I not a right (they justifying that attack upon the testimony of the Misses Devlin) to attack her testimony? The Court — You shall not retaliate upon the Misses Devlin. You have a perfect right to attack the Miss Devlin's testimony as to its inconsistency, either with itself or with the other evidence, but to launch out into such a latitude of inferences as that you were going upon, in regard to the character of the house of the Misses Devlin, whose reputation has not been attacked, either for truth or in any other respect, I cannot permit it in a closing argu- ment. The District Attorney — You will bear in mind, gentlemen of the jury, that I did not interrupt the learned counsel. You heard the attack upon Dr. Burroughs, of which I shall have something to say hereafter. You know I must not dare to lay my fingers on the Misses Devlin. Mr. Wilson, assistant district attorney, during these interrup- tions in the course of Mr. Carrington's argument, advised him to take his seat. Mr. Carrington said, "No, I will complete my argu- ment." Mr. Carrington — Again I say, and I will endeavor to argue, under the instructions of the court. The Court— Well, proceed. The District Attorney — I will proceed. The Court — In order. I am aware that there are some persons who have a prejudice to ministers of the Gospel, and are glad of an opportunity to assail them. And there are some persons, also, who have a prejudice to members of Congress. I will put a "hypothetical " case. Upon one occasion I put an old gentleman upon the stand to prove the bad character of a witness. He testified that he was a person of very bad character. What did you ever know or hear of him doing wrong ? Nothing in particular; but I have seen him day after day, and night after night, associating with members of Congress and other loose characters. (Laughter..) Now, this is very improper. I like members of Congress just as well as other people, when they behave themselves. I have no prejudice against any class of my fellow citizens. You kuow my sentiments on this subject. I have for years been warring against sectional feeling and prejudice of every kind. TRIAL OP MART HARRIS. 99 But, gentlemen, I understand the object of the assault, and I think you must perceive it. These gentlemen know they cannot injure Dr. Burroughs in the estimation of the public, or in your estimation, but they desire to divert me from the prosecution of Mary Harris to his defense; to divert your attention from the murderess to the brother of the deceased; but I am too old a war- horse to be caught in that way. What is the rule of law, gentle- men, on this point? There are three ways of contradicting a wit- ness. First, by assailing his reputation for veracity ; and why didn't they attempt that? They dared not do it, for the reason that he stood too high. He told them who he was — where he could be found; and yet not a witness, male or female, with the host of friends that this beautiful murderess has, could be found to assail his reputation for veracity. The second mode of contradict- ing a witness is by showing that he has made different statements at different times in regard to the same transaction. Was not the statement of Dr. Burroughs clear, consistent, honest? He would say now what he said yesterday, or would say to-morrow. The third mode is by proving a different state of facts by another wit- ness. What witness contradicted him? (The district attorney here turned towards Miss Louisa Devlin, paused for a moment, and then said) : Yes, Louisa Devlin ! And how does she contradict him ? Why, in regard to an immaterial fact; and — you will, your honor, par- don me, for I do not wish to go against the instructions of the court — is John C. Burroughs, the honest, Christian gentleman, to be denounced in court, and is my mouth to be sealed when they rely upon the testimony of this Louisa Devlin ? Who is Louisa Devlin ? When asked about her business, her color would come and go. By her own admission, she went to an assignation house on Quincy street on a fool's errand. Mr. Bradley. — I must interrupt the counsel there. Louisa Dev- lin never went to that house. Mr. Caeeington. — Jane Devlin did. (Turning to Louisa Dev- lin.) I wonder if any man ever called her ducky [laughter], his darling, his rosebud, or his sugar-plum ? [Renewed laughter J Do you suppose it would have given her paroxysmal insanity ? [Great laughter.] I have no doubt it would have excited her very much, for, judging from her looks, she ain't used to it. [Renewed laughter.] And this is the woman upon whom they rely to con- tradict the honest, Christian gentleman! She is indeed the lago in this bloody tragedy; for Mr. Bradley told you, in his opening address, that this was the old storj of Othello. It was hatred and 100 MODERN JURY TRIALS. jealousy that urged Mary Harris to the commission of this atro- cious murder; for you remember she told her lawyer that her love had turned to hatred. And, gentlemen of the jury, it was the, desire of money that prompted Louisa Devlin to fire the jealousy of this love-sick girl, preparatory to a suit for a breach of promise of marriage, expecting to share the damages, and I will prove it from the evidence before taking my seat; for, notwithstanding the eulogium pronounced upon her, I say that she is a woman without delicacy, without refinement and sensibility, for during this trial she has sat here giggling while her friend was on trial for her life, as though she were on a debauch in Quincy street, Chicago, at the house of Ellen Mills. Mr. Bradley. — May it please your Honor, I denounce such an accusation in the strongest terms that man can. There has not been one word of reproach cast upon Miss Devlin from the begin- ning to the end of this trial, and I do say that no gentleman would use such language towards a woman. The District Attorney. — I shall not be betrayed into any indiscretion, if the object is to insult me. I have only discharged my duty as in my humble judgment seemed proper. I make the same remark in regard to the attack upon Dr. Burroughs. Mr. Bradley — I do not wish to insult you; but I do say the man who denounces this woman without the evidence in the case warranting it trespasses beyond the license of counsel, and abuses the character of gentleman. The District Attorney. — All I have to say is, that I return the insult; your conduct has been ungentlemanly. Mr. Bradley. — You can return the insult as much as you please. I despise you. Say what you please to the jury, I shall not inter- rupt you again. Here is a chip on my head: come and knock it off. [Laughter. About this time the court called the marshal.] [The quarrel with the court and side remarks of district attor- ney with counsel are not commended.] Prompted by "hatred." Out of her own mouth do I condemn her. Prompted, not by "insane impulse," but by hatred, she comes to the city of Washington to institute a suit for a breach of promise of marriage. She does not put her writ in the hands of the mar- shal, but she goes in person to the Treasury Department — let us admit with the writ in one hand and the pistol in the other. When she arrives there, she inquires for Mr. Burroughs. She is told that TRIAL OF MARY HARRIS. 101 there are two gentlemen there of that name; and this -woman, who it is attempted to be shown to you was insane, says that she wants to see Mr. Adoniram J. Burroughs, and examines the register, finds his name, is shown to his room, and looks in. She does not fire. Was that the best opportunity? No! Mrs. Woodbridge was, I believe, in a direct line with Burroughs. She might have killed both. There he is at his desk in the discharge of official duty. Old Mrs. Woodbridge sitting near him. She first sees the person afld is prompted to get up and ask what she desires, and to extend an invitation to her to walk in. But just then she retires. How far, gentlemen of the jury ? Down to that clock, which has been explained to you in the testimony, and there takes her stand. How long does she remain there ? As I said in my opening address, and as appears, I think, from the evidence, there was time to hear the ticking of the clock and observe the movements of the hand. There was time for the clerks to be discharged, for young Burroughs to make his arrangements for the next day, and, start on his way home in company with a companion. There was time for passion to subside and reason to resume its sway. There was time for " insane impulse " to pass away, and the power of volition to return. He passes by. She fires at him deliberately. He falls; she fires at him a second time, aiming directly at his head. Then she endeav- ors to escape, and losing her way feels the heavy hand of justice upon her. She is arrested. She is cool, calm, collected. She told the officer that this man had injured her. She wanted revenge, and would have it at the risk of her life. She showed no emotion until the b'eeding, mangled corpse of her murdered victim is brought into her presence. And this is evidence of insanity. It is evidence, gentlemen of the jury, of sanity. It is woman's nature speaking out. When Lady Macbeth was reproving her husband for his irresolution, she said, "I have done the deed, but the gray- haired Duncan resembled my father as he slept." Proud, cruel, ambitious woman. Still she was a woman. So Mary Harris, hav- ing accomplished her purpose, and wlien she sees before her the bleeding evidence of her guilt, suffers the pangs of remorse. This is sanity. • Can you interpret it to be evidence of insanity ? If a man or a woman, prompted by revenge, can lie in wait and commit a deliberate, willful murder, and science call it "insane impulse," of course Mr. Bradley will agree with me when I say, "Dissolve society into its original elements, raze your churches, your courts of criminal jurisprudence, close your Bibles, and tell your daughters to learn to be marksmen, and to arm themselves with a pistol, and the assassin's dagger. When the husband goes 102 MODERN JURY TRIALS. out to work for his daily bread, his wife should stand by his side, with a pistol in one hand and a bowie-knife in the other, to protect him against the "insane impulse," of some wicked and revengeful woman, who wishes to gratify her revenge against him perhaps for some youthful indiscretion." It is throwing open the doors wide to violence and crime, and I ask, "What man in the community is safe, if a jury so far mistake the law as to acquit this woman upon the ground of "insane impulse ?" By such an absurd verdict, you say to every wicked woman in the city of Washington, kill a man for revenge if you please, and then take care to tear your hair, cry, and cut up a few antics, and we will call it insane impulse, and thus we will not only approve, but applaud the act. ******** Now, I propose to show that he was mistaken in all these facts. Then, gentlemen, if I show the causes do not exist upon which he bases his opinion, of course the effect of those causes cannot follow as he supposes. In other words, gentlemen, if these are the facts upon which his opinion rests, and I show you that these facts do not appear from the evidence, the opinion is hypothetical, and can- not be regarded by you in forming your verdict, lie erects a superstructure upon these four stones. I intend to remove them one by one, and then the entire fabric falls to the ground. First, then, gentlemen, was there a marriage contract ? A marriage con- tract, like every other contract, requires the consent of both par- ties. I defy you to discover a marriage contract from any of the ninety-two letters offered in evidence. But let us admit, for the sake of the argument, that there was a marriage contract,. I main- tain that, if there was, it was violated by the lady herself. Mr. Caeeingtom" here referred to a letter, and humorously said, I cannot read this letter, gentlemen, perhaps, as it should be read- I saw some of you crying. What are you crying about? I can- not cry. I will have to get my friend, Mr. Bradley, or Judge Mason to cry for me. Mr. Bradley — If you had half as much sensibility as we have you would cry also. Mr. Carrington — Cry for what ? [Holding up the letter.] Perhaps I committed a mistake, gentlemen. I should have put some one of these ladies on the stand as an expert. This letter echoes the groans of a discarded and despairing lover. How, then, stands the case ? The lady discards her true-hearted, honorable lover; and he, like a man of honor, offers to return her her letters and her portrait, and try his fortune in another quarter. The lady, TRIAL OF MARY HARRIS. 103 exercising a woman's right, in a spirit of coquettishness, discards the man she loves, and then, fired by the demon of jealousy, mur- ders him for marrying another, her superior in all respects. What, then, is the opinion of Dr. Nichols worth, when he assumes she was suffering because her lover had violated his promise of marrivge? I said in my opening address, and I now repeat it, that A. J. Burroughs died without a stain upon his honor. Is there anything dishonorable in this? Is it dishonorable to love a pretty girl and to tell her so ? Then let him who is without sin cast the first stone. And when discarded by one pretty girl, is it dishonor- able to love a prettier and a better girl, and to tell her so ? Bur- roughs loved Mary Harris tenderly and devotedly, if these letters breathe the spirit of true love. He was discarded by her; and meeting with another lady, her superior, loved her, offered her his hand and heart, and, like a true-hearted woman, she neither flirted nor coquetted with him, but promptly gave him all that a woman has — a woman's love. Perhaps there a're some higher-law men upon that jury, who have determined to take the law into their own hands, and mold it to suit their own views. If so, it is my duty to inform you that you commit the crime of perjury before your country and high Heaven; for you have solemnly sworn to decide tills case accord- ing to the law as it is, and not as you think it ought to be. How often do you hear this defense of insanity ? It is relied on in every desperate case of murder, and it is generally treated with contempt by honest and intelligent jurors. If some poor, tremb- ling criminal in rags and tatters should dare to make such a defense as this, it would be hooted out of court. Why should a different rule be adopted in the case of Mary Harris ? Why was she not subjected to the inspection of the jury ? For your custom is, when the defense of insanity is made to examine the prisoner carefully for yourselves. Whenever I hear this defense of insan- ity, it reminds me of a remark that was made to me by my prede- cessor, Mr. Fendall. He had just purchased a book upon homicide. He met old Col. Benton on the street, when the latter asked him what new work he had. He replied, " Sir, I have a work on homi- cide." "Why," said Col. Benton, "your money has been mis- spent. There are only two defenses in cases of homicide in this country — self-defense and insanity." Col. Benton was right, gen- tlemen of the jury. If a man injures another, and the injured party kills him, he pleads self-defense. If a man kills another, who has never injured him, it is said that there was no motive, and therefore he was insane. Thte result is, that skillful counsel may per- 104 MODERN JURY TRIALS. suade judges and jurors, who have not the firmness and intelligence to discharge their duty, to give unbridled license to the crime of murder. Put your foot upon this nonsense of "insane impulse." If you do not, I will. If you approve of this defense by your ver- dict, it shall be against my earnest and solemn protest. I now solemnly protest against this libel upon the laws and religion of my country. When the excitement of the day passes off, and murder, crime, and blood run riot in your city, no man or woman shall say it was I who did it. It is true that Washington juries have heretofore approved the redress of private wrongs by private means, and juries have been severely censured for it. I never complained of the verdict of a jury, and I intend to express no opinion in regard to your conduct on former occasions. Sickles — and I mention his name with respect, for he has proved to be a true patriot and a gallant soldier — mur- dered a man who had, or whom he supposed had, wronged him in the tenderest point, while he was standing near his house, flaunting a handkerchief in front of his window, in a moment of frenzy, which might with some plausibility be called a species of " par- oxysmal insanity." Jarboe went with his sister into the presence of her seducer, and demanded reparation. He attempted to draw a weapon, when the indignant brother shot him dead. This, too, with some show of plausibility, might be called a case of " par- oxysmal insanity." On the other hand, Daniel Woodward slew his wife in a fit of jealousy, and was convicted, sentenced, and executed. Mary Harris, from jealousy and a desire of revenge, deliberately murdered the man who had loved her and never wronged her. Gentlemen of the jury, it is idle to close our eyes to the truth. It was not insanity, either paroxysmal, scientific, or by whatever name you may be pleased to call it, but it was jealousy ! jealousy ! T have seen a personification and representation of the passions upon canvas-^hatred, envy, malice, revenge, and jealousy; and in this collection of imaginary demons the most horrible to behold is the green-eyed monster. But it is no excuse for crimes. It never has been, and never can be, where the law is properly adminis- tered. Mr. Bradley, in his opening address, admits that this is a case of jealousy. You remember his remark, "It is the old story of Othello." But there are marked points of difference between his and the present ease. Othello, when he entered the chamber of his true and faithful wife, on the fatal night when she was doomed to die, said: TRIAL OF MARY HARRIS. 105 "Desdomona, have you prayed, to-night? Yes, my lord. Bethink you of any sin un forgiven? Yes, my lord ; loving you too well. Then pray; for I would not kill thy unprepared soul." Not so with Mary Harris. She strikes young Burroughs clown, and sends his soul into eternity without a word of warning, or time to breathe a single prayer. After the bloody deed was done, Othello relents, exclaiming: *' If the world were one entire and perfect crystallite, I would give it all to restore thy precious life." Not so with Mary Harris. She is now seen, like a horrid ghoul, burrowing in the grave, and feeding her revenge upon the remains of her murdered victim; and through her counsel, her organ and representatives, who speak her sentiments and represent her views, she endeavers to destroy the reputation of his only brother, the natural guardian and protector of his widow and his orphan. Now, gentlemen of the jury, I reach the last and, indeed, the only real defense to this indictment. I approach it with fear and trembling, for I do not see how I can meet it successfully, in view of the extraordinary, but powerful, sympathy that has been elicited on behalf of the prisoner. It is this: That she is a pretty, deli- cate, little woman. That is all. This is really the only defense, and you know it. If you acquit this woman, it will be because she is a woman; and all this nonsense about insanity and moral justifi- cation are simply to afford you a pretext. It is said that she wanted to be the wife of the deceased. Wife, indeed! That name is sacred as heaven itself. It is associated in our minds with all that is good, amiable and attractive. And what sort of a wife would this woman have made, who had the heart to conceive, and the hand to execute, this bloody deed ? Had she married young Burroughs, " No heavenly choirs had the hymenean sung." It might have been said, with more truth than poetry, ** Nor Hymen, nor the Graces should preside, Nor Juno to befriend the blooming bride; But Fiends, with funereal banrls. the process led, A.nd Furies waited at the genial bed." When a man of honor strains to his bosom the woman he loves, and calls her his own, his darling wife, and imprints the meltinc kiss upon her matron lips, he must feel and know that she is " As pure as an icicle, That hangs from Diana's temple." 106 MODERN JURY TRIALS. I admit that Burroughs once loved Mary Harris. But she was unworthy of his love, for she never truly loved him; while, judg- ing from these letters, he loved her with an intensity and ardor which is creditable to his heart, if not to his head. These letters contained the most violent protestations of love. Like Shakes- peare's Romeo, young Burroughs was affectionate, demonstrative, and violent in his attachments, but honorable and true. Go back in imagination, gentlemen of the jury, twenty years. Think, each one of you, of the sweet words you have whispered into the ears of the girl you love, and the billet-doux that you have written her in those halcyon and happy days. How would you like to have them exposed to the vulgar gaze of the public? If such demonstrations are evidence of insanity, you and I, and every true- hearted man, should be dressed in straight jackets, and turned over to the tender mercies of Dr. Nichols, this propogator of the new and dangerous doctrine — this modern philosopher of the humbug of " paroxysmal insanity." Let it not be said that eminent criminals, defended by prominent public men, may commit a crime with impunity in the Federal metropolis. Why did not this prisoner, I repeat, take the life of the deceased in Chicago, if he injured, or if she supposed he had injured, her? Did she suppose, as many do, that here she could gratify her revenge with impunity? I say what I have often said before, that the citizens of Washington are a law-loving, law- abiding, and a religious people, but it is a rendezvous for thieves, murderers, garotters and adventurers, of both sexes and of every variety — a sewer for all the vices and immoralities of the age in which we live. Our only hope of safety is in the firmness and fidelity of the judiciary. I plead the cause of law, order and relig- ion; and if you dishonor the records of this court by an approval of this bloody deed, it shall be against my earnest and solemn pro- test. This is a central and a radiating point. We exert .an influ- ence in all sections of this great confederacy. Besides, strano-ers judge our people from the manners and customs of the Federal metropolis. I charge you, then, gentlemen of the jury, to remem- ber the so'emnity of your position, and take care how you outrage the public sentiment, and libel the community of which you are the representatives on this occasion. I see what is passing in your minds. I can read your thoughts. You pity the jjrisoner at the bar. So do I. You wish to shield her from the consequences of her crime. I have no objection to this, provided the law is enforced. How is it to be done ? It is the simplest thing in the world. The legislature, in its wisdom, has provided for such cases. DEFENSE OF JOHN E. COOK. 107 Convict the prisoner, and then commend her to the mercy of the Executive. Do this, and your object is accomplished without vio- lence being done to any man's conscience. ,If the prisoner, in view of all the circumstances, deserves clemency, she will receive it; but in my opinion, stern, inflexible justice is true mercy. I would have you temper justice with a spirit of mercy, but I would not have you sacrifice the cause of justice to mercy. When man broke Heaven's high law, his Creator looked down upon him with com- passion. He would show him mercy, but the claims of justice must be vindicated; and in the counsel of eternity He determined to give His well-beloved and only-begotten Son to die, that guilty man might live, and by his imputed righteousness alone we are saved. I charge you, then, in the same spirit, to do justice, and then remember mercy. You are now the great conservators of the public peace; and I charge you, by the solemn sanction of a juror's oath, in the eloquent language of another, " that adamantine chain which binds the integrity of man to the throne of eternal justice, do your duty in the fear of God and without the fear of man." At the conclusion of Mr. Carrington's remarks the case was given to the jury. They then retired to their room, where they remained about five minutes, when they returned, and rendered a verdict of "Not guilty." Thereupon the court adjourned. DEFENSE OF JOHN" E. COOK, Extract of Argument by D. W. Voorhees, Delivered at Charleston, Va. , Nov- ember 8, 1859, upon the Trial of John E. Cook, indicted for Treason, Murder, and Inciting Slaves to Rebel, at Harper's Ferry Insurrection. This beautiful and eloquent appeal for mercy may be better understood when we consider that Cook had confessed his crime, and mercy was his only plea. This speech is said to be the great- est effort of Mr. Voorhees' life, but seems a little less elaborate, and even less pathetic, than the famous Mary Harris address, in another chapter. The parting with the jury is a touching picture of rhetorical eloquence. 108 MODERN JURY TRIALS. With the permission of the Court: Gentlemen of the Jury — The place I occupy in standing before you at this time is one clothed with a responsibility as weighty and as delicate as was ever assigned an advocate in behalf of an unfortunate fellow-man. No language that I can employ could give an additional force to the circumstances by which I am sur- rounded, and which press so heavily on the public mind as well as on my own. I come, too, as a stranger to each one of you. Tour faces I know only by the common image we bear to our Maker; but in your exalted character of citizens of the ancient and proud commonwealth of Virginia and of the American Union, I bear to you a passport of friendship and letter of introduction. I come from the sunset side of your western mountains, from beyond the rivers that now skirt the borders of your great State; but I come not as an alien to a foreign land, but rather as one who returns to the home of his ancestors and to the household from which he sprang. I come here not as an enemy, but as a friend with interest common with yourselves, hoping for your hopes, and praying that the prosperity and glory of Virginia may be perpetual. Nor do I forget that very soil on which" I live in my Western home was once owned by this venerable commonwealth, as much as the soil on which I now stand. Her laws there once prevailed, and all her institutions were there established as they are here. Not only my own State of Indiana, but also four other great States in the north- west, stand as enduring and lofty monuments of Virginia's mag- nanimity and princely liberality. Her donation to the general Govern uient made them sovereign States; and since God gave the fruitful land of Canaan to Moses and Israel, such a gift of present and future empire has never been made to any people. Coming from the bosom of one of these States, can I forget the fealty and duty which I owe to the supremacy of your laws, the sacredness of your citizenship, or the sovereignty of your State? Rather may the child forget its parent, and smite with unnatural hand the author of its being. I am not here, gentlemen, in behalf of this pale-faced, fair-haired wanderer from his home and the paths of duty, to talk to you about the cold technicalities of the law, born of laborious analysis by the light of the midnight lamp. I place him before you on no such narrow grounds. He is in the hands of friends, who abhorred the. conduct of which he has been guilty. But does that fact debar him of human sympathy ? Does the sinful act smite the errino- brother with the leprosy, which forbids the touch of the hand of affection ? Is his voice of repentance, an appeal for forgiveness, DEFENSE OF JOHN E. COOK. 109 stifled in his mouth? If so, the meek Saviour of the world would have recoiled with horror from Mary Magdalene, and spurned the repentant sorrow of Peter, who denied him. * * * For my client I avow every sympathy. If He who made the earth, and hung the sun and moon and stars on high, to give it light, and created man a joint heir of eternal wealth, and put within him an immortal spark of that celestial flame which surrounds His throne, could remember mercy in exe- cuting justice, when His whole plan of divine government was assailed and deranged; when His law was set at defiance and violated; when the purity of Eden had been defiled by the presence and counsels of the serpent — why, so can you, and so can I, when the wrong and the crime stand confessed, and every attonement is made to the majesty of the law, which the prisoner has in his power to make. * * * Gentlemen, you have the case. I surrender into your hands the issues of life and death. As long as you live, a more important case than this you'll never be called to try. Consider it, therefore, well in all its bearings. I have tried to show you those facts which go to palliate the conduct of the prisoner. Shall I go home and say that in justice you remembered not mercy to him ? Leave the door of clemency open; do not shut it by wholesale conviction. Remember that life is an awful and sacred thing; remember that death is terrible — terrible at any time and in any form. But when to the frightful mien of the grim monster, when to the chilled vis- age of the spirit of the glass and scythe, is added the hated, dreaded spectre of the gibbet, we turn shuddering from the accumulated horror. God spare this boy and those that love him, from such a scene of woe. I part from you now, and most likely forever. When we next meet — when I next look upon your faces and you on mine — it will be in that land and before that tribunal where the only plea that will save you or me from a worse fate than awaits the prisoner, will be mercy. Charity is the paramount virtue; all else is a sounding brass and a tinkling cymbal. Charity suffereth long and is kind. Forbid it not to come into your deliberations; and, when your last hour comes, the memory that you allowed it to plead for your erring brother, John E. Cook, will brighten your passage over the dark river and rise by your side as an interceding angel in that day when your trial, as well as his, shall be deter- mined by a just but merciful God. I thank the court and you, gentlemen, for your patient kindness, and I am done. HO MODERN JURY TRIALS. THE CONSPIRACY CASE. Trial concluded September, 1851, at Detroit, Midi. This remarkable case occupied nearly four months in trial; enlisted the services of the most eminent counsel, including Messrs. Wra. A. Howard, Jacob M. Howard, Wm. Gray and James A. Van Dyke, of Michigan, and John Van Arman of Chicago, Senator Wm. H. Seward, of New York, and others. Some 40 men were indicted; 12 convicted and sentenced, varying from five to ten years; 20 discharged; two died in jail. Four hundred and ninety-five witnesses were sworn, many from a distance of a hundred miles. The report of the trial, including evidence and arguments, is in book form, covering nearly 900 pages. Four of the argu- ments would cover 100 pages each. The story of the case, not found in the arguments here reported, is a story of a stupendous conspiracy by malicious men along the line of the Michigan Cen- tral Railroad, to destroy its property, in revenge for non-payment for cattle killed on its crossings. The road had passed from State control co a corporation. The State had paid liberally on similar cases, making a market for cattle. Many of the schemes of train- wrecking are most revolting and terrible to contenrplate. The worst was to run a passenger train into a bottomless marsh near Leoni. This failed, by a freight train coming at a slow rate of speed in its stead. The other scheme was to burn the Detroit Depot, which succeeded. It is attempted here to give some of the eloquent periods from this battle of giants. The long and deep public interest in this trial, the eminence of counsel, the issue investigated, the liberty of forty men, the expense of a half million of dollars, the effect on the prosperity of Michigan, all gave an inspiration to the arguments that often reached to grandeur and sublimity. The selections of eloquent appeals of Senator Seward and J. A. Van Dyke here given, are masterpieces of oratory, which, for breadth of thought, sublimity of expression, genius of statement, and forecast of our country's future, have seldom been equalled, if ever excelled, in modern court practice. This is one reason for the exception in goinc back of twenty years, to form a report of modern jury trials in the United States. John Van Aeman, then a rising young lawyer, compara- tively unknown, worked up the case for the people, and made a THE CONSPIRACY CASE. Ill life long reputation in his zeal, skill and ability exhibited. His speech is full of the fire and fervor of genius and originality. It touches all the details of the conspiracy and contains precedents from Cicero contending with Cataline in Rome. It was a master effort. The eloquent closing words of Senator Seward are given, with a more extended argument of James A. Van Dyke, then one of the leading orators in the West. Among the effective paragraphs of Mr. Van Aeman are these: Gentlemen — This is not a single crime, perpetrated by a single hand, proceeding from a single corrupt heart and directed against the interest and safety of a single citizen, but a long series of daring and dangerous felonies, originating in the combined pur- pose and will, and executed by the combined strength of a multi- tude, deeply perilling the safety, property and lives of the whole public, indicating the dangerous opinions almost absolutely treason- able and at war with social order, with the execution of the laws of the land, of public safety, and its importance is enhanced a hundred fold by the long series of crimes developed by this inves- tigation. The issue is, whether the men whose daring, lawless outrages have, for two long years, rendered the greatest thoroughfare through your State a scene of dangei and death — whether you have before you any of the persons to whom the public owe the loss of a half million dollars, as well as the peril of life to thou- sands exposed on the line of this railroad. * * * [Counsel had reverted to Mr. Van Arman's being sworn as a wit- ness; to his emplo3'ing spies, to which he replied at length, and of himself said, on the motive of the prosecution]: I have a wife and children; necessity often calls them over this road; more than once within the last two years have their lives been imperiled and exposed to imminent danger along that track, and, as I firmly believe, at the hands of these very defendants. The lives of my wife and children have been plotted against, threatened on this road, by base and bloody ruffians, and as God will judge me for the assertion, gentlemen, I believe the men, the very men who plotted this destruction, sit here before me. For the motive which prompts me to pursue them, look into your own hearts. * * * Is it disreputable to engage in ferreting out this offense ? I know of one standard by which to determine the merits of any particular occupation, conduct or employment. That standard is utility; whatever is useful is honorable. This standard is simple. 112 MODERN JURY TRIALS. and practical. It has the object of all worthy actions. The merits of an act is determined by its effects, not its appearance. Was it necessary that those who heaped obstructions nightly along that track should be detected and defeated ? * * * Did they give fair warning to the unwary traveler on his peaceful journey through the State? No; under the darkness of the night, with stealthy tread, like a lurking murderer, they crept from their thickets to place their dangerous obstruction or hurl their deadly missiles. As well may bloodthirsty savages demand the usages of honorable warfare, and complain of ambush and stratagem. In that most dangerous conspiracy (by Cataline) against the liberties of Rome, when Cicero determined to crush out the vile plot, he employed spies and soldiers to join the conspirators and receive at their hands the seal to the engagement; then he sent a band of soldiers to capture and seize them all together. Men alleged that day, as counsel have here, those who listened to the enemy are unworthy of credit. When told of the thunder cloud about to burst upon them, they answered: Men who will listen to such facts will manufacture facts; that with respect to the seal, the spies had forged it. But while they were thus arguing, Cataline was form- ing his camp in Elmira. At last he rose in his place in the senate and said he would drown the clamor raised against him in the best blood of Rome. * * * Of public opinion he said: What it approves to-day it con- demns to-morrow, and he who obeys it is involved in constant absurdity and contradiction. He is the slave of a fickle and remorseless tyrant; trust it not, it will prove a snare and a delu- sion. Again, it is said this crime is unnatural; improbable for lack of motive. All crime is irrational, unnatural, because the true office of reason directs men to pursue their own welfare. All crime is opposed to reason. In human conduct passion always disputes with human reason. Often successfully. All crimes are the dictates of passion, not of reason. To assume that men all act from rational motives is to deny the very existence of crime. Reason teaches obedience to the laws of nature; yet we learn from the records of the past that men have constantly rebelled. From the very commencement, man, in his earliest footprints upon earth, has been stained with a brother's blood. * * * The effort of counsel to disgrace these witnesses has been unwearied and persevering. They have tracked them through the whole course of their lives, seizing with malignant ingenu- THE CONSPIRACY CASE. 113 ity every act that could support an accusation or point a sarcasm. Their faults, their follies, have been rehearsed, their very misfortunes paraded before you, and not a sus- picion ever conceived by human malignity, or uttered by the tongue of calumny against them, but has been revived, collected and repeated to you. Indifferent to their virtues, they treasure up their vices and erect a standard to judge of character. So the scavenger, as he creeps, with bended back and earthward eye, along your city streets and shuns the pleasant spots, the shaded walks, visiting the loathsome alleys and gutters for the foul, rejected matter, reeking, noisome, disgusting — gathered from the half-filled ditch, treasuring only what is foul! In all'my experi- ence I have never seen a man so treated. There is a class of men to whom this human hunt is a pleasant pastime — an exciting game. There is a kind of ferocity in human nature, a sort of blood-thirsti- ness, which creeps in men of weakness, who never attack the strong; but no sooner is a fellow mortal down, than they fall upon and tear him like vultures on a carrion — too cowardly to prey upon the living, they will descend into the grave, drag out the carcass from its moldering repose, and feed upon the festering remains. Let man be unfortunate, let him be down, and they hasten to this rich repast. But there are two kinds of men with which it is useless to make personal issues. The one whose character is too bad to be made worse, tlw other so good that it cannot be injured ! ISTo rank or position can screen a man from just censure due to wrong and injustice — right, even-handed justice to all, even the meanest. Equal rights — fair play, are the jewels dearest to the heart of every man. * * * Does any man lack motives to stimulate loyalty tc* our institutions? Let him consider their glorious results! Let him trace the rapid advance of her hardy settlers across this vast continent, carrying the successive waves of daring emigrants far beyond the primeval forests; marking out State after State, and annexing them to the area of freedom over the wide plains of the far West, over the flinty summits of the Rocky Mountains and through the gorges of the Sierra Nevada, now rush the tides of emigration — a progress unrivaled in the history of the world! A little over a half century, and our few, sparsely-populated col- onies bordering the seas and rivers of the East, destitute of wealth, her rights often trampled on, her flag feebly supported by a hand- ful of brave men. A half century more and our flag, born in tri- umph from the Gulf of St. Lawrence to the Rio Grande, from the Atlantic to the distant shores of the mighty Pacific! Its folds are 8 114 MODERN JURY TRIALS. swept by the rude gusts that blow along the rock-bound coast of New England, and fanned by the gentle breezes that float over the golden sands of the Sacramento valley! This industry and enterprise her.sons have encountered, subdued every obstacle to their advancement. They mined their way through the flinty barriers of rock. The mountain gorges and deep morass have been leveled; "while through every vein of this vast empire flows the strengthening tides of trade, the calm health of nations!" These glorious achievements of labor, pro- tected by wholesome laws and institutions; sustained by the unwavering loyalty of her citizens ! To that royalty alone we owe the stability of our institutions; the prosperity they have bestowed upon that alone; can society look for protection? To the best virtue of good citizens I confidently appeal on this occasion for the vindication of the laws of our State, the protection of the lives of its citizens. Weighted with character and prompted, as if by inspiration, Wm. H. Seward's Closing Words to the jury were: Gentlemen — In the middle of the fourth month, we draw near to what has seemed to be an endless labor. While we have been here, events have transpired which have roused natkmal ambition, kindled national resentment, drawn forth national sympathies, and threatened to disturb the tranquility of empires. He who, although He worketh UDseen, yet worketh irresistibly and unceasingly, hath suspended neither His guardian care nor His paternal discipline over ourselves. Some of you have sickened and convalesced. Others have parted with cherished loved ones, who, removed before they had time to contract the stain of earth, were already prepared for the kingdom of Heaven. There have been changes, too, among the unfortunate men whom I have defended. The sound of the hammer has died away in the workshop of some; the harvests have ripened and wasted in the fields of others. Want, and fear and sorrow have entered into all their dwellings. Their own ruo-ged forms have drooped, their sunburnt brows blanched, and their hands have become soft to the pressure of friendship) as yours or mine. One of them — a vagrant boy — whom I found imprisoned here for a few extravagant words, that, perhaps, he never uttered, has pined away and died. Another, he who was feared, hated and loved most of all, has fallen in the vigor of life, '"'hacked down his THE CONSPIRACY CASE. 115 thick, summer leaves all faded." When such a one falls, amid the din and smoke of the battlefield, our emotions are overpow- ered, suppressed, lost in the excitement of public passion. But when he perishes, a victim of social strife; when we see the iron enter his soul, and see it, day by day, sinking deeper and deeper, until nature gives way and he lies lifeless at our feet, then there is nothing to check the flow of forgiveness, compassion and sympathy. If, in the moment he is closing his eyes on earth, he declares, "I have committed no crime against my country; I die a martyr for the liberty of speech, and perish of a broken heart," then, indeed, do we feel that the tongues of dying men enforce attention like deep harmony. Who has thus been withdrawn from our erring judgment to the tribunal of eternal justice? Yet it cannot be avoided. If Abel F. Fitch was guilty of the crime in this indictment, every man here may, nevertheless, be innocent; but if he was inno- cent, then there is not one of these, his associates, who can be guilty. Try them, then, if" you must; condemn him, if you must, and with him condemn them. But remember you are mortal, and he is now immortal; and that before that tribunal where he stands you must stand and confront him, and vindicate your judgment. Remember, too, that he is now free. He has not only left behind him the dungeon, the cell and the chain, but he exults in a freedom, compared with which the liberty we enjoy is slavery and bondage. You stand, then, between the dead and the living. There is no need to bespeak the exercise of your caution, of your candor and of your impartiality. You will, I am sure, be just to the living and true to your country; because, under circumstances so solemn, so full of awe, you cannot be unjust to the dead, nor false to your country, nor to your God! The greatest effort was reserved for Hon. James A. Van Dyke, who crowned a brilliant career by. an address that will long be admired for its art, eloquence, and wisdom — and - even more — for its lofty conception of our country's future. Nearing the close of this address (which is reduced from 140 pages), there occurs one of the finest pictures in American liter- ature. It was an inspiration of a genius in the attitude of fore- telling the future of American railroads: " It shall speed onward, past the forests, still onward, through the gorges of the mountains, over the depths of the valley, till the iron horse, whose bowels are fire, * * shall be heard thunder- ing through the echoing solitudes of the Rocky Mountains, start- 116 MODERN JURY TRIALS. ling the lone Indian from his wild retreat, and ere long reaching the golden shores of the far-off Pacific, there to be welcomed by the glad shouts of American freemen, at the glorious event which has conquered time and distance, and bound them by nearer chords to older homes and sister States."] Mr. Van Dyke, of Detroit, who closed the case for the people, was a man of rare genius. Erect, courteous, dignified in person, graceful in speech and manner, eloquent in voice and delivery, the soul of honor — a man of brilliant intellect and superior culture. He united manhood and oratory with excellent effect. His tall, well dressed form, smoothly shaven face and elegant manner, made him a Ches- terfield of the Michigan bar. He was an Erskine in style of oratory. This was his greatest life work with a jury. He died in May, 1856, aged forty-three. Mr. Van Dyke said : May it please the Court and Gentlemen of the Jury — I cannot refrain from congratulating you that the long and wearisome inves- tigation in which you are engaged, is so near to its close. Many months since, before the leaves were green or the flowers had bloomed, ere the spring-time had departed, and while our hopes and feelings moved in sympathy with the gladdening freshness which the season shed around us, you were summoned from your homes, comforts, business and pleasures, to assume a serious respon- sibility, in aid of the administration of justice. Since then, while we have associated together, and day by day discharged, I trust with patience and fidelity, our toilsome, but solemn duties, time has run its ceaseless course; the summer came with all its joy and brightness; it, too, has faded away, and already the crimson leaves of the forest warn us that autumn is passing its withering fingers over the face of nature. I indulge in this thought, because it induces the mind to reflect upon our own condition, and tBe vanity of acting otherwise than tinder a deep sense of duty. Most of us have reached the middle age; our spring time has departed, our summer time has almost left us, our autumn is nigh, and ere long the descending snows of winter will fall upon our heads. All things teach the dread truth that "life is fleeting," and that we should move through its mazy paths of cares and pleasures, with hope and_ vision fixed on the eternity which lies beyond. In this case, gentlemen, we have each a solemn duty to perform* let us discharge it with a high sense of the responsiblity which rests upon us. THE CONSPIRACY CASE. 117 In the views which I am about to submit to you, I will earn- estly endeavor to treat this cause with the seriousness its import- ance demands, and with the candor and fairness due to you and to the court. While I feel pleased in beholding the laurels which this trial has entwined around other brows, I will seek to gather none for my own. I will neither wander into the paths of fancy, nor address myself to those who sit without the jury box. I will remember, however dull it may render me, that my duty confines me to this cause; I will speak only of it and address myself only to you. I will pass over the case, gentlemen, as nearly as possible in the same order which has been pursued by the distinguished counsel who last addressed you for the defense. I shall not seek or hope to leave the impress of oratorical power upon your imagination, but trust, ere I conclude, to convince your reason, that every point urged by the defense is' fallacious and without foundation in the facts and evidence before you. Gentlemen of the jury, while in some respects I rejoice, in others I regret that we are here to-day. I rejoice that, although during the long period we have spent together, death has swept away some connected with this trial — that although disease has at times visited you or your families, yet that God in his providence has, amid your prolonged and arduous cares, preserved you in health and vigor to discharge the high duty you owe to them and your country. I am glad that we can here apply our minds to the calm investigation of truth; that while the Sun of Heaven lights up our beloved city, and sheds its radiance upon the fields and forests and beautiful river within our vision, we can sit free from the excite- ments of life, and, with an eye single to the ends of law and justice, devote our best energies to the necessary, though laborious, task of a fair and candid examination of the mass of evidence which has accumulated in this cause. I regret, on your account, that the responsibility of a decision has fallen upon you, and for myself, that it has devolved upon me to say ought about these unfortunate prisoners; yet they are duties that may not be passed by or put aside. That you will discharge your duty in justice, though tempered with mercy, I have no doubt. I would, gentlemen, that I could perform mine as well. You must expect from me, gentlemen, no eloquent declamations, for I will frame no dazzling theories upon a misrepresentation or perversion of the testimony, whether accidental or designed. I will not weave a single wreath of fancy, but will seek to bind your minds and my own to the plain 118 MODERN JURY TRIALS. and unadorned truths that are apparent in this case, and which alone should influence you. Although I have to follow in the wake of elaborately prepared and eloquent speeches, I will not seek to emulate them. I will neither quote Latin, or decorate my periods by selections from the classic pages of Addison; nor will I follow the counsel through his terrible philippic upon the leading witness of the prosecution, which I fear lost much of its force upon minds familiar with the strangely similar portraiture of Junius, drawn in the "Vision of Judgment." But while I refrain from pursuing the meteoric fancies, eloquent philippics and sublime apostrophes to the " sainted dead," which have shed a false, though brilliant light upon the dark details of crime revealed to you day by day, I will go through the case fairly and discuss it fully. I will nothing extenuate, nor aught set down in malice. I will base my argu- ments upon the testimony, not as I would have it, but as it is. I will speak not to the world, but to you, who can correct and hold me in judgment, if I fail to redeem the promises of fairness and candor which I make. Heaven can witness for me that I desire no fame at the expense of these unfortunate men. I will use no bitter words; I will affect no bitter loathing; I will assail neither man, woman 'nor child, except under the urgent pressure of duty and necessity. I wish I could be spared the painful task of doing so at all. During our labors, death has visited some of those who awaited your judgment — -it is to be regretted. By none was it more lamented than by myself and the gentlemen associated with me, for the prosecution. I hoped that respect for the inscrutable decrees of Providence would have sealed all lips upon that sad occurrence. If it had rested with the prosecution, the dead, how- ever guilty, would have been suffered to slumber in silence. Neither you nor I could close our eyes to the solemn fact that, "those who were, are not." Death was in our midst, and though silence might vail its horrors, like the skeleton at the Egyptian feast, its unseen presence was felt by all. But for no purpose, for no end, not even to convict the guilty, would the prosecution have invaded the tomb and dragged the image of its lifeless tenant before you, either for unseemly invective, or scarcely less seemly panegyric. The counsel for defendants have judged otherwise; it has seemed to them wise and proper to tear aside the vail that divides the living from the dead, and to invoke the "sainted spirit" of the leader of these defendants — a phantom, gentlemen, that I know will fail in the design of frightening you from your proprietv, but the invocation of which entails on me, in certain portions of my argument, the painful duty of speaking of the dead and their THE CONSPIRACY CASE. 119 deeds in terms which I would fain use only of the living. It would be unseemly to seek occasion to probe the deeds and motives of those who are no longer of this world, but it would he criminal weakness to shrink from the task when duty demands its perform- ance. Much, far too much, has been said to you, gentlemen, about excitement. However pleasing and eloquent all this may have been, like too many of the arguments urged upon you, they "will not bide the test." Excitement! where is it, gentlemen ? Surely not bere. Whom does it influence? Surely not you. Examine this "excitement," upon which such impassioned appeals have been made. What is it ? Four months since, thirty or forty men, charged with atrocious crimes, were arrested and brought to our city. The crime with which they stood charged was one that touched us nearly. It had threatened to reduce our young and beauteous city to a mass of black and smouldering ashes, and 'o entomb in its ruins properties that were the reward of long and ceaseless toil. Charged with this fearful crime, they came among us in irons, and surrounded by every moral evidence of guilt. It was natural that, for a time, the public pulse should beat the quicker, and so it did, but there was no attempt at violence; there was no desire that the accused should meet aught hut a fair and impartial trial, and almost before they were lodged in our jail, the excitement their arrival created was again hushed, and the pulse of our peaceful and law-abiding city again beat with its wonted tran- quility; and as you well know, during the greater portion of this trial, but for the crowd of witnesses, the little room in which we pursued our investigations would not have been one-third full. Excitement! Among whom? Where in two hours a jury was tried and empanneled, each member of it a resident of this city — this hot-bed of excitement — and each member of it equally accept- able to the prosecution and the prisoners. Dangerous excitement! It is a foul, and, though I love not harsh words, a false stigma upon our city. Where could these prisoners have had a fairer trial or more indulgence extended to them? Where else in a city filled with, able counsel, unengaged by the Government, would the prose- cution have delayed the trial, at great sacrifice, merely that coun- sel might be procured for prisoners from a distance of hundreds of miles? Where before has such freedom of defense been suffered? Where before have the rules of law been waived by the prosecu- tion, that the defense might introduce all that could be found to militate against the character of an important witness? In what other instance have counsel for defense, without check or interrup- 120 MODERN JURY TRIALS. tion, been suffered, in an address to the jury, to comment upon testimony stricken from the case, to travel over the history of the country, and read unsworn letters as evidence ? In the whole range of criminal reports no case can be found in which such liberal indulgence has been extended in aid of the defense of prisoners. Much has been said to you about public opinion; but what have you or I to do with it ? It cannot, it should not, influence us. The streets may be filled with rumors and conjectures; but we are not in the streets, and such things float past us unregarded. We are in a building, for the present at least, consecrated to the admin- istration of justice; we are gathered at its shrine — if not a holy, a solemn one — and excitement and public opinion should both be banished from the elements that surround it. If strong public opinion exists, it is not the creation of the prosecution, and it is unjust, by implication or otherwise, to charge it upon us. If the city press, for a time, published news in connection with this trial, that it deemed important to the public, it has long ceased to do so. If this much-talked-of public opinion exists, who made it? Not the prosecution; its lijDS have been uniformly closed by a sense of propriety. And I would ask those who address such language to you, have the prosecuting counsel run through the streets, pledging their honors to the innocence or guilt of the prisoners ? Have they sought, day after day, to raise an influence that might be brought to bear upon your deliberations? Have they sown dis- trust broadcast in the community, or gathered public meetings for the purpose of denouncing these judicial proceedings ? ■ Have they got up death-bed scenes to affect the imagination of women and children; for I presume they were scarcely designed to influence men ? Have they published sermons of doubtful morality and perverted taste, for distribution, with reports of supervisors, com- ments of the press, and fancy scenes by youthful and ardent coun- sel annexed ? Have they done aught but their duty, or done that aught but fairly ? Have they passed through the streets, stating that they knew, and could wager that certain of the jury they might name, would never agree to convict ? No, gentlemen, the prosecution do no such things, and " laugh to scorn " those who do. They know you; they have faith in your intelligence and integrity, and await with patience and respect the result of your judgment. They know you, and despise the childish weakness which seeks, by such shallow courses, to "turn awry" the even justice of your deliberations. We are here to seek your verdict by no such means; we are here THE CONSPIRACY CASE. 121 to discuss testimony, and, aided by lights of past ages and the wis- dom and experience of our respected judge, to separate truth from falsehood. You have heard this testimony; you have listened to it with unwearying patience; you will soon retire, "the world for- getting," though not- by it forgot, with your responsibilities gathered upon yourselves, to make up your verdict according to that law which has been well styled " the perfection of human reason," and which, however eloquently it may be assailed, even by its own disciples who serve and minister at its shrine, bears, stamped upon its venerable front, the sanction of ages, of sages and of worlds — willing, if you can, to acquit these men; but ready, also, if your judgment and the law direct it, to find them guilty. Again and again, you are told that death has visited and thinned the ranks of these unfortunate men, and the corse and its shroud are seized upon as fit pictures to disturb your visions, in the hope, apparently, of making you shudder as you gaze. And because Providence has deemed it fit to remove two of these defendants, shall we be told, in deliberate argument, that you are therefrom to infer the innocence of those who are left ? Is such to be the basis of a solemn verdict ? Permit me to ask you, gentlemen, what have you to do with death-bed scenes, false in fact, morbid in taste, and wholly irrele- vant to this issue ? You will, I am sure, entirely dismiss from youi imaginations these ghostly fancies which your good sense has doubtless prevented from finding lodgment in your minds. But the picture is a fancied scene, destitute even of the merit of simple truth. The dying words, which are now so sought to be perverted, were in fact of far different import; and were flung off from a fevered brain, amid the fearful delirium of deathly collapse, and let me say, dressed up as they now are, they would meet from the deceased, could he hear them, no sign of recognition — naught but the smile of derision. They might serve to adorn the page of some yellow covered novel — they have served to grace two elegant perorations — but they scarcely seem appropriate in the argument of a trial of such magnitude and importance. I regret that the last delirious moments of the dead should bo subject of public com- ment ; but as counsel on the other side have thought otherwise, it is my duty to follow them with the truth, and it will be duty of the court to tell you to banish them from your minds, if perchance they linger there. Gentlemen, you have been gravely-told that "you stand between the living and the dead;" that " the slightest error in your finding 122 MODERN JURY TRIALS. will prove a source of constant remorse;" that " the thought should make you tremble." If this indeed be true, you may well tremble. Uncertainty and imperfection are stamped upon eai'th, and upon man, its choicest production, and upon his proudest efforts. Feeble man talking of certainty 1 His loftiest fabrics crumble beneath the step of time ; or are crushed or scattered before an hour's breath. His cultivated intellect, his glowing mind, lie shattered and quenched in a moment's space. No, gentlemen, no such fear- ful responsibility rests on you; no such unerring certainty is required of you; and he who seeks to'grasp or attain such perfec- tion, will only realize how "Vaunting ambition doth o'erleap itself." Neither reason, law nor sense requires from you the exercise of superhuman attributes. You are bound to exercise caution, care, and deliberation; to weigh the evidence with your best judgment; to sift it with your keenest penetration; and, having done this, to state honestly the convictions of your mind — no more and no less. "What has been the history of the road while in the hands of the State? For years it dragged its slow length along; an encum- brance and a burthen. The State needed engines, cars, depots — • every material to prosecute or sustain with energy or profit, this important work; but its credit was gone, and it was immersed in debt. Our population was thinly scattered across the entire breadth of the Peninsula. Engines dragged slowly and heavily through the dense forests. Our city numbered but 12,000 people; our State was destitute of wealth; our farmers destitute of markets; our laborers destitute of employment; and so far as the interests of the State and her people were identified with the railroad, it pre- sented a joyless present, a dark and frowning future. In a fortunate hour, the State sold the road, and the millions of this denounced company were flung broadcast through our com- munity; they took up the old track, relaid a better one, extended the road to the extreme line of the State, laid down at enormous cost, over 400 miles of fences to guard the property of all, save those who wanted a beef market at each crossing; multiplied the accommodation seven-fold, quadrupled the speed, increased traffic and commerce, so that while, in 1845, the State passed 26,000 tons over the road; in 1850 the company passed 134,000 tons; created markets for our products, snatched the tide of passing emigration from the hands of a steamboat monopoly, hostile to Michigan, and threw it into the heart of our State, until now, where heaven's THE CONSPIRACY CASE. 123 light was once shut out by dense forests, it shines over fertile fields, and rich, luxuriant harvests, and the rivers of our^ State, which once ran with wasteful speed to the bosom of the lakes, turns the machinery which renders our rich products available. With them, Capital made its home amongst us; our credit was restored; hope and energy sprung from their lethargic sleep; labor clapped her glad hands and shouted for joy; and Michigan bent for the moment, like a sapling by the fierceness of a passing tempest, relieved from the debts and burthens, rose erect, and in her youth- ful strength, stood proudly up among her sister States. Who shall stop this glorious work, which is spreading blessings and prosperity around us. Who shall dare to say, "thus far shalt thou go and no farther ? " Who shall dictate to it after doing so much ? Must it now pause and rest in inglorious ease ? No, gen- tlemen, it shall not be stayed; it shall speed onward in triumph; it shall add link after link to the great chain that binds mankind together; it shall speed onward, still onward, through the gorges of the mountain, over the depths of the valley, till the iron horse, whose bowels are fire, " out of whose nostrils goeth forth smoke," and "whose breath kindleth coals," shall be heard thundering through the echoing solitudes of the Rocky Mountains, startling the lone Indian from his wild retreat, and ere long reaching the golden shores of the far-off Pacific, there to be welcomed by the glad shouts of American freemen a't the glorious event which has conquered time and distance, and bound them by nearer chords to older homes and sister States. A detestable monopoly! These railroads, built by united ener- gies and capital, are the great instruments in the hand of God to hasten onward the glorious mission of religion and civilization. Already is our Central Road stretching forth its hands, and giving assurance that soon shall its iron track reach across the neighbor- ing Provinces from Detroit to Niagara; and that ere long the scream of the locomotive shall be heard over the sound of the cat- aract, which shall thunder forth in deafening peals, that glorious event. Our brethren on the shores of the Atlantic, with whom we are bound by every interest, association and affection, will hail the shortened tie with ardent welcome. Beneath the beneficial influence of companies like this, space is annihilated, weeks are reduced to the compass of days, and in spite of the wicked purposes of bad men, this and kindred companies shall continue to spread and contribute to the greatness and pros- perity of our country, until the earth vibrates with the pulses of her glory. * * * * * * * 124 MODERN JURY TRIALS. What! are we, in this law-abiding and loyal State, to have it thundered in the ears of jurors, in the sanctity of a court house, and in the course of judicial proceedings, from the lips of any man, that if a verdict is not satisfactory to the people, another "inquisi- tion will he holden, and the victims of the law be dragged from the bloody fingers of power?" Do I overstate it ? No, I know you recollect it. I saw and felt, and sympathized with you, in the shudder which marked your feelings as that and kindred sentences fell upon your astonished ears. I forgot I was here, and was car- ried for a moment to some heated tribune of Paris, where some spirit of fierceness was maddening the populace and stirring up France to again " Get drunk with blood to vomit crime. 11 Ah! gentlemen, there is a worse evil abroad through this land, than the overshadowing power of corporations. There are isms of dreadful and fearful import around us. They "menace our public institutions and private rights." There is a spirit of disloyalty to law and country; a tendency to forsake the old land marks; to treat the lessons of sages which come down from our fathers, as antiquated and worn out; to speak lightly of our hallowed Union; to abandon those pure, steadfast and perpetual principles which have sanctified our past, and which can alone save our future; and to rear and plant in their stead a "higher law," which each one for himself may adjudge and administer. Hence come those frightful dangers which disturb our courts; that voice of evil omen which would fain chaunt the hymn of ruin over the broken fragments of our capitol; which would raise the arm of private judgment against the enactment of the law-makers; and rouse an excited populace to sit in judgment on the decisions of courts and the verdicts of juries. Gentlemen, it is an evil day, when the men of our high places are found scattering such seed in congenial soil. Where, if such is to be the course of things, are we to stop? There would be an end of law, and confusion and ruin would stalk with fearful strides over our land. We enforce not the law here by the bayo- net. It is the law of the people, administered by forms pre- scribed; and the beautiful sight is exhibited of the people of a whole empire bowing in silent respect and cheerful obedience to the adjudications of their own courts and the verdicts of their own juries. And well may we do so. For what would we be without that law and cheerful obedience to it? What and where would we be if a community, or any portion of it, could or dare rise up, in THE CONSPIRACY CASE. 125 violence or lawlessness, and crush or disturb the solemn awards of legal tribunals ? What and how shall we characterize the spirit which would invite us to such a dread feast? Gentlemen, all you possess on earth is the reward of labor pro- tected by law. It is law alone which keeps all things in order, guards the sleep of infancy, the energy of manhood, and the weak- ness of age. It hovers over us by day; it keeps watch and ward over the slumbers of the night; it goes with us over the land, and guides and guards us through the trackless paths of the mighty waters. The high and the low, each are within its view, and beneath its ample folds. It protects beauty and virtue, punishes crime and wickedness, and vindicates right. Honor and life, and liberty, and property, the wide world over, are its high objects. Stern, yet kind; pure, yet pitying; steadfast, immutable and just; it is the attribute of God on earth. It proceeds from His bosom, and encircles the world with its care and power and blessings. All honor and praise to those who administer it in purity, and who reverence its high behests. When our own respected, eloquent and classic citizen senator, was desired to choose a motto and design for the coat of arms of that State, with which he is so identified, and by it so appreciated, most happy was he in that choice. We find it stamped, and reading, when rendered, thus: "If you seek a beautiful peninsula, look around you." And we see, as part of the design, the sun of civili- zation rising from the waters, and commerce and agriculture quick- ening into life beneath its genial rays. And the lone Indian is there too, standing in sadness, seeing the elements advancing and gathering, which tell him the doom of his race, and before which he must again retreat to roam the western wilds. And a beautiful peninsula it is! Its shores bathed and almost circled by the majestic lakes which now are convulsed with storm, and anon flash back the serene light of heaven, as if from a million of mirrors. Its prairies blooming with beauty, and uttering sweet whisperings to the light wind as it breathes among its flowers; its fields yellow with luxuriant harvests; its youth cultivated; its peo- ple moral, contented and happy; and all reposing beneath the reign of law and order. But change the scene! Let law be disregarded, and her ministers brought to contempt; let confusion and disobedi- ence characterize her people, and the clouds of darkness and dis- grace will soon gather over our land. Frantic passion will produce ruthless violence; bad men will revel and rejoice; the good will sigh and depart. Better, than that this should come to pass, would it be that the forest and primeval silence should return again. But 126 MODERN JURY TRIALS. it is useless to anticipate such evil things. Such invocations to our people, fall on unwelcoming ears. They may suit some foreign district, some land where anti-rent and anti-law make part of her history; but cannot and will not corrupt the law-loving and law- respecting people of Michigan. He who expects to read, on the columns of her greatness, words of disloyalty to the Union or dis- respect to law, may seek for them in vain, until he himself sinks into the abyss of time. I regret, gentlemen, to have thus to leave the strict merits of the case, to follow and comment on the extraneous, and, to my judg- ment, most dangerous, remarks of counsel, and will now return to what is more in point. Gentlemen, I feel the solemnity and importance of the place and the hour. The long months which we have been in this Court House, are dwindled down to a span. A narrow space intervenes between us and the long looked for end. I need not say how important it is for these- prisoners — solitude or society, liberty or bondage tremble within the fleeting moments, and it makes me sad to feel and believe, as I do, that the dark shadows of the prison house are already gathering around them. But, gentlemen, there is an importance beyond the fate of these prisoners and the limits of this court room. This cause has spread through the confines of our State and beyond its limits, and a world is looking on to see if there is here strength and virtue sufficient to assert the integrity of the law. The dignity, the honor and the character pf Michigan are in your keeping. I feel proud and secure in knowing them there. I feel assured that, when the future historian makes out the record of our past, and the pencil of truth writes down the dark details of law- less violence and banded crime, which stain our annals and blacken our fame, there shall be written beneath it in living light, these words which will illuminate the darkness and remove the stigma: "A firm and able judge, an intelligent and honest jury, unawed by fear and prejudice, and unawed by threats, vindicated the vio- lated law." We are called upon by every high consideration which can induce action, to do our duty in this case. Gratitude for the lovely herit- age God has given us; patriotism; love for the beautiful peninsula, in which is fixed our destiny and centered our all of earthly ^ood and hope; the desire we have for her future prosperity and illus- trious career, all unite in one voice, and ask that you be firm, free and steadfast on this occasion. For, if these dangerous doctrines THE CONSPIRACY CASE. 127 which produce the outrages we are considering', are to be spread from the hamlets of Leoni throughout the breadth of the land, and even to the jury box of our courts; if men, animated by deep hate against a corporation, feel and think that they are justified in redressing their own real or fancied wrongs in their own way; if courts are to be scouted at, law trampled on, order rushed into wild confusion, and crime sympathized with and left to stalk unpunished, then, indeed, have evil days come upon us. Capital, virtue, peace and property will be trodden over and crushed by mob violence, and all the dire evils which will follow in its train. The first jury which renders a verdict, tainted by the unhallowed spirit of fear or public opinion, or prejudiced by loud clamors against monopolies and tyrannical corporations, will have stricken a death blow at their country's honor and welfare. The first jury- man who renders his verdict, in the midst of turmoil, excitement and prejudice, unmoved by all such elements, with his conscience impressed by his oath, with his mind calmly, but deeply, imbued with the truth and regulated by the law, presents a moral spectacle to be admired, honored, and forever remembered — his action adds to the security of the commonwealth and gives new guaranty of its perpetuation. Gentlemen, I do not intimate that there is any great volume of prejudice or passion arrayed against the Michigan Central Railroad Company. I believe that the mass of our citizens regard it as a public benefit, a mighty source of unnumbered blessings to Michi- gan, and its superintendents and managers as liberal, just and hon- est. Be this as it may, I do know that Michigan is loyal to the Union and the laws. May she remain so forever! I would fain carve the sentiment on the columns of her Capitol; I would stamp it on her broad banner; I would wave it aloft, that her law-loving and law-abiding people might gaze on it with pride and pleasure, knowing and feeling that they, and all they have or cherish, will ever find security, peace and happiness, beneath its ample folds. So may it be, and if so, we will soon find the State of our pride leaping on to greatness like a young giant, glowing all over with honor, vigor and prosperity, till she becomes lustrous as the starlit sky. But, gentlemen, fraught with importance, as I deem this case to be to the character and welfare of Michigan, still we wish no ver- dict at the unjust condemnation of a single citizen. Whatever your verdict may be, this prosecution and a good community will, and must, be satisfied with it. All we required was a fair, impar- tial trial; that has been obtained, and whatever be the result, we 128 MODERN JURY TRIALS. will never murmur against it. We know the care and anxiety it has cost you, and the inconvenience and loss it has entailed upon you. We know the consciousness you have of your weighty responsibility, and that even now you would gladly pass the cup from you. But, gentlemen, the duty of a good citizen, if well dis- charged, however painful in the present, becomes through all after- time an abiding source of pure pleasure. May I, for a moment, change this scene, take you to the Capitol of your Union, and turn back the tide of time a few short months. See there before you the scene of a patriot soldier's death bed! His life has been spent in the service of his country. His honor, like his own good sword, is without a stain. He once was exposed to the perils of this northwestern frontier. He braved danger and death amid the everglades of Florida. On the terrible fields of Mexico he bore aloft the glorious flag of our Union, graced it with new triumph, and "planted fresh stars of glory there!" The voice of a grateful nation called him to the high place of our country; but here for him is the end of life. He has fought his last battle; he yields to the victor, Death; his eye, once gleaming through the smoke of battles, is dim; his voice, once heard like the bugle over the clash and shouts of a deadly strife, can only whisper; and his brave heart, which never beat with fear, is flickering in its last pulsations. What do we hear now? What memories of brave deeds now come back to light up the gloom of the dark hour? What rays of earthly glory now shed their radiance to cheer the dying hero through his last struggle? Alas! illustrious though his deeds, bright though his fame, all, all seem quite forgotten; but there does come whispering to his sinking spirit a kindly thought and a sweet solace, and you hear it falling tremulous from his lips: "I have endeavored to do my duty." Gentlemen, may we endeavor to do our duty in this case, and through life, and be consoled by the reflection thereof in death. And now, though through with all I have to say, though happy to feel that I need no longer detain you, I yet linger ere taking my seat. We have come together so often; we have associated in this cause so long; we have participated in our several capacities for so many months in all the excitements and incidents of this trial; the kindly greetings of recurring morns, the familiar faces, the pleas- ant intercourse, all have flung remembrances over the past which now, at the moment of parting, cluster so fresh and warm around us, that I hesitate to end them. i I would fain say a word of kindness to all engaged in this cause THE CONSPIRACY CASE. 129 but it may not be appropriate to speak individually of each. I feel I may, however, with propriety allude to the prosecuting attorney of this county, who, before you and the people he repre- sents, has discharged his trying duties with an impartiality, ability and fidelity which has gained for him an -enviable name. And now for yourselves allow me to say, I cannot by words show my high appreciation of you and your services. I can only thank you warmly and truly. May long life and every prosperity repay you for your cares and sacrifices in this cause, and when the summons comes for you to appear before the High Tribunal of another world, may each one of you with a conscious sense of duty well discharged, " Sustained and soothed By an unfaltering trust, approach thy grave. Like one who wraps the drapery of his couch About him, and lies down to pleasant dreams." [Hon. Jacob M. Howard (since deceased), made a powerful and eloquent opening argument to the jury, but failed to preserve the notes, and it is lost so far as any record is known. Of his won- derful power with a jury, too much could not be said. His methods as an orator are aptly described by the words of Attorney- General May and Chief Justice Campbell, at his death in April, 1871. Mr. May said: " The name of Jacob M. Howard is a household word in Michi- gan. There is no man here so poor or so ignorant who is not familiar with that name. During all its years of existence he has been one of its strong pillars of support, and has left the impres- sion of his great mind upon its wonderful growth and prosperity. He grew up into a perfect manhood within its borders, and has been closely identified with every interest tending toward its development. " He was a man of mark. The stranger stopped and looked at him, and instinctively received the impression that he was in the presence of a man of great physical and mental power. ''He was a true man — true to his clients, true to his convictions, true to all the great and varied interests committed to his care by an intelligent and confiding constituency. He was true to his country when armed treason sought its life; and he loved his country and its institutions with a zeal that amounted to a passion. He united the simplicity of a child with the strength of a lion. The constitution of his mind was such that he loved truth, right and justice for their own sakes, and loathed and spurned deception and fraud with a strength rarely equalled. "Amid all the rancor and hate engendered by partizan strife during the past few years, no man could honestly charge Mr. How- ard with dishonesty. However much his great powers enriched others, he died poor. With advantages for gain possessed by few, commencing the practice of law nearly forty years ago, and 9 130 MODERN JURY TRIALS. acknowledged to be a leader in the profession, he died poor. Proud words these to adorn the monument of a statesman ! No man could desire a more fitting epitaph. They speak volumes for his honesty, and indicate that whoever else worshipped mammon and enriched themselves at the expense of the government, Jacob M. Howard always kept strictly within the golden rule. Indeed, like Webster, whom he strongly resembled, he cared quite too little for gold and silver and the accumulation of wealth. He worshipped at no such shrine. With a strong mind and sound body early trained to severe discipline, and enriched by ancient and modern learning, united with a fine presence and a wonderful command of pure English, few men were his equals at the bar, in the forum, or on the hustings. His death is a great public loss, and will be mourned by thousands throughout the length and breadth of this continent, and by none more sincerely than by the recently enfran- chised race whose earnest and eloquent friend he lived and died." Judge Campbell said: " Mr. Howard's style of legal eloquence was very remarkable. He never appeared in a court of justice except with great gravity of demeanor; not one that was put on for the occasion, but one that was natural to a man who felt impressed with the feeling that he was a minister of justice. His diction was of that lofty kind that, applied to lesser subjects, would have been inappropriate, and applied by lesser men, would have had very little effect. But when behind his ponderous language was his ponderous intellect, and when every word that he said had its meaning, and every idea came out with all the force that language could give, then those rounded periods had something of magic in them, and there was as much gained, perhaps, by that manner of his as could be by any aid of rhetoric that could ever have been devised. * * * Mr. Howard was, I think, the best specimen of the natural production of American institutions in their best form that we had amongst us. He was peculiarly American. While he possessed plainness, and while he despised all those things that are despicable, he had a most hearty admiration for everything that could really illustrate and embellish life. As a scholar, I know no one whose reading was more extensive and select; there was no branch that he despised or neglected. * * * He was a man who represented better than any man I have ever known in this community, and somewhat as the lamented Mr. Lincoln did, the great popular com- mon sense of the people. He was remarkable for reflecting that you could almost always be sure that, as an ordinary matter struck Mr. Howard, so it struck the average sense of the community; at least when passion was over, and when the time for sober reflection had come; and in this way finding in his own heart a reflection of those emotions and feelings that actuated the great mass of man- kind, we can find that peculiar trait of his character — one very great for his success. When he spoke to a jury, he knew how everything would strike that jury; when he addressed the court, if that court possessed ordinary qualifications and common sense' he knew how those ideas would strike the court, and that they TRIAL OF DANIEL E. SICKLES. 131 would understand them. When he addressed the Senate or the larger audiences of the people of the United States, in like manner he knew that what he said would go right home to their hearts, and that they, at all events, would appreciate and understand him, whether they did or did not agree with him in that which he was seeking to bring about. And I think myself that when Time has made his memory a thing of the past — when his fame has become the property of future generations, although he may be remem- bered as a great man; although he may be remembered for his learning, for his eloquence, and for the qualities that have struck most admiration into the great mass of mankind, he will be still further venerated and remembered as a representative American, who valued above all other things the great and essential principles of mankind."] THE TEIAL OF DANIEL E. SICKLES. Indicted foe the Muedee of Key. Meld at Washington, February, 1859. This is one of the leading insanity cases in America. It com- prises some of the most exciting scenes, distinguished parties, coun- sel and witnesses, in the whole line of insanity defenses. Major General Sickles, now a retired army officer, politician and celebrated lawyer of New York, was congressman, on duty as such at the time of the homicide. He had filled many places of profit and trust, was married to a very beautiful woman, and lived at the Capital. He has been minister to Spain, and was a society gentle- man of high rank and standing in Washington. District Attorney Key, whose father was author of " The Star Spangled Banner," was a person of accomplished manners, a friend of General Sickles and wife, and intimate with the family. Gen- eral Sickles had aided his professional advancement in various ways. The dreadful secret came by the confession of Mrs. Sickles, after being detected in giving signals to Key on the fatal Sunday, when General Sickles shot the seducer dead in broad daylight, and gave himself up to imprisonment. The defense was emotional insanity. The counsel employed in the case were Messrs. Beach, Brady, Graham, Stanton, Phelps, and 132 MODERN JURY TRIALS. others — as grand an array of legal talent as ever assembled on the continent. The efforts of these leaders of the bar would make a readable volume; but the object is to select such portions of the facts and arguments as will describe the trial. Extracts of Secretary Stanton's address are aptly quoted in the trial of McFarland, in this volume. Few cases ever attracted more attention, and seldom has a case been more ably conducted. Such passages as, "You all know too well the value men put upon the marriage bed! " "Trouble is a mys- terious visitor," "Prosperity is the parent of friends; bad fortune the fire by which they are tried," occur often. Mr. Graham's open- ing periods are selections of wisdom, culled from holy writ, ancient classics, and the inspired utterances of great men. To read them is to know what such men say of home and honor. In this trial no summing up was made. The case was submit- ted on the charge of the court, with brief arguments on requests to charge. It is remarkable that men so learned and eminent as Messrs. Beach, Brady, Stanton and Graham should thus submit an important case. Such a hazard is not often attempted; hut the result proved their wisdom. " Remorseless Revenge " was the theory of the prosecution. The remarks of Mr. Brady and Mr. Stanton were carefully kept by Mr. Graham, and used in his speech in the McFarland case, where they are reported. [The writer remembers an instance of Secretary Stanton's art as an advocate that may well be mentioned in this connection. It was a trial of a young man charged with stabbing his rival in the heart, near Cleveland, some years before the war. Mr. Stanton, then in the prime of his legal practice, was pitted against the elo- quent advocate, John A. Bingham, afterwards a fellow statesman. Mr. Stanton kept his seat, in busy but quiet preparation, for a final plea. The prosecuting attorney was young and weak. Mr. Bing- ham was expected, and was prepared, to close. Indignation ran high against the prisoner. The cool, quiet manners and mysterious self- possession of Stanton never deserted him. He read between the lines, that his closing would rouse Counselor Bingham, who would stir the jury into such a fury of excitement, that hanging would be called for, and no mercy. As the district attorney closed, saying, his "able and distinguished associate would conclude after Mr. Stanton," and, warning the jury against Mr. Stanton's power, he took his seat. The silence grew painful. " Proceed, Mr. Stanton," said the court. "I have no remarks to add, your honor," was the reply. John A. Bingham was white with rage. He tore his notes in TRIAL OF DANIEL E. SICKLES. 133 shreds, muttering, " Stanton's trick ! I might have known it." It was a clear case of " dropping " on counsel, and a most effective speech. The jury and spectators were dumb with disappointment. The defendant was found guilty of manslaughter, and sentenced for a moderate period — his life saved by the skill of his counsel. Secretary Stanton earned and accepted his $1,000 retainer with composure. He had not uttered a word for his client, and yet made an eloquent argument by his silence. Silence, even in a law- suit, is sometimes golden.] Hon. John Graham. For more than a score of years Mr. Graham has been a lead- ing advocate in New York, and met with deserved success in many famous murder cases. Mr. Graham is near sixty years of age and will soon retire from practice. Personally he is of strong build, medium height, with a warm face, an impassioned manner, a man of large resources in law, familiar with the Bible and human nature. He carries a jury by the force of his powerful illustrations and deep earnestness. He begins by a judicious selection of his jury, and ends with an affecting appeal. He speaks at great length, reads long extracts, quotes extensively from various cases, especially able advocates in similar cases; reading whole chapters in the middle of his address, and carefully commenting on the force and reason of other men's positions. He is not selfish, but generous, and gives due credit to all his authors. In this way he seems always to be telling of some- thing of others rather than of the case at bar; yet always with an eye single to his client's interest. The whole argument sounds like a story, in short, and never tedious, chapters. By his copious extracts from Scripture, his force of expression, his power of ren- dering words effective, he adds a sacredness to his theme akin to the most brilliant passages of Burke. His strong points are ever before the jury; now in sarcasm, now in irony, then in pathos and often in startling sentences that make one shudder at the deed he denounces. The attention of his hearers never lags. The attendance at his speaking is limited to the capacity of the court room. With a thrilling exordium he passes to a solid structure of reasons, built up in circles so strongly coiled together as to end in a cable cord that binds a jury to his conclusions. There are times while he is 6peaking, that to think of any other than his conclusions would be to disbelieve the decision of courts, the sacredness of Scripture, the wisdom of judges, or the humanity of man. 134 MODERN JURY TRIALS. Mb. John Gbaham's Abgument. May it please the Court : Gentlemen of the Juey — This is to me a time for solemn thoughts, and I rise to address you laboring under a severe struggle of feeling. It is a beautiful sentiment, better expressed in the Latin, than in the translation, amicos res opimoe pariunt / adversce probant. Prosperity is the parent of friends; bad fortune is the tire in which they are tried. Friendship is the most sacred of all artificial, as distinguished from our natural, attachments. It stands next to those which by the hand of Nature have been interwoven with the objects which she herself creates. Upon the altar of this relation I cast my present offering. It carries with it the unction of a warm heart. May it prove to be an efficacious tribute in favor of my client! I have been the companion of his sunshine, and I am now called here to participate in the gloom of his present affliction. Trouble is a mysterious visitor. • It seems to be the unshunnable doom of man. It has been well said that, "Although affliction cometh not forth of the dust, neither doth trouble spring out of the ground: yet, man is born unto trouble, as the sparks fly upward." That same great influence which has impressed laws upon all the departments of creation — which has studded the heavens with their fires, and ordained the boundary line between the day and the night — that same great influence which stretches over the face of Nature verdure's green mantle, and again supplants it for the less pleasing dress of winter — that same great influence which has des- ignated the time for the dropping of the leaves and the falling of the sparrows — is the will that guides, and the hand that holds the rod, with which, in this life, we are punished. As we pass from the proceedings in which we are here engaged, may we be per- mitted to repeat over their result (which I confidently anticipate), as a congratulation to this defendant for the severe ordeal through which he has passed: " Behold, happy is the man whom God cor- recteth: therefore despise not thou the chastening of the Almighty: for He maketh sore, and bindeth up: He woundeth, and His hands make whole. He shall deliver thee in six troubles: yea, in seven there shall no evil touch thee." A few weeks since, the body of a human being was found in the throes of death, in one of the streets of your city. It proved to be the body of a confirmed — an habitual adulterer. On a day too sacred to be profaned by worldly toil — on a day on which he was forbidden to moisten his brow with the sweat of honest labor — on TRIAL OF DANIEL E. SICKLES. 135 a day on which he should have risen above the grossness of his nature, and though on no other day he had sent his aspirations heavenward, he should have allowed them then to pass in that direction — we find him besieging with the most evil intentions that castle where, for their security and repose, the law had placed the wife and child of his neighbor. Had he observed the solemn pre- cept, " Remember the Sabbath day, to keep it holy," he might at this moment have been one of the living. The injured husband and father rushes upon him in the moment of his guilt, and, under the influence of phrensy, executes upon him a judgment which was as just as it was summary. The issue which you are to decide here is, whether this act ren- ders its author amenable to the laws of the land. In the decision of this issue, gentlemen of the jury, you have a deep and solemn interest. You are here to fix the price of the marriage bed. You are here to say in what estimation that sacred couch is held by an honest and an intelligent American jury. You are favored citizens. You live in the city which constitutes the seat of our Federal gov- ernment; a city consecrated to liberty above all others, but not to the liberty of the libertine; a city bearing the name of the illustri- ous Washington, the "Father of his Country,'' of whom it has been emphatically and truly said, that he was "first in war, first in peace, and first in the hearts of his countrymen." You may feel a pity, in reviewing this occurrence, for the life which has been taken; you may regret the necessity which constrained that event; but, while you pity the dead, remember, also, that you should extend commiseration to the living. That life, taken away as it was, may prove to be your and my gain. You know not how soon the wife and daughter of some one of you would have been — nay, you know not but what she had already been — marked by the same eyes which doomed and destroyed the marriage relations of this defendant. You know not how soon the gardens of loveliness over which you now preside, had that life been spared, would have been called upon, by the deceased, to supply their flower, wherewith to gratify his wicked, yet insatiable appetite. An interference with the marriage relation must strike every reflecting mind as the greatest wrong that can be committed upon a human being. It has been well said that affliction, shame, pov- erty, captivity, are preferable; and I do not know that I can express the sentiment more happily than in reciting the lines which the great dramatist has placed in the mouth of the Moor, over the sup- posed discovery of the inconstancy of his Desdemona: 136 MODERN JURY TRIALS. " Had it pleas'd Heaven To try me with affliction ; had he rain'd Ail kinds of sores and shames on my bare head; Steeped me in poverty to the very lips; Given to captivity me and my utmost hopes; 1 should have found in some part of my soul A drop of patience: hut alasl to make me A fixed figure for the hand of scorn To point his slow, unmoving finger at, Ohl Ohl Yet I could bear that, too; well, very well. But there, where I have garnered up my heart; "Where either I must live or bear no life; The fountain from the which my current runs, Or else dries up; to be discarded thence. Or keep it as a cistern, for foul toads To knot and gender in 1 — turn thy complexion there Patience, thou young and rose-lipped cherubim; Aye, there look grim as hell. 1 .' You are here to decide whether the defender of the marriage bed is a murderer — whether he is to be put on the same footing with the first murderer, and is to be presented in his moral and legal aspects with the same hues of aggravation about him. Gentlemen, the murderer is a most detestable character. Far be it from me to defend him before this or any other jury. Society cannot, it ought not, to contain him. Calm, cold, and calculating, he saves his malice as the miser saves his treasure. His bosom is the vault in which he deposits it. Age possesses no claim upon his consideration — nor does sex interfere with him in the execution of bis bloody purpose. In the very air he sees his weapon, and it marshals him "the way that he was going." He selects some object of innocence for his victim, and chooses some lonely spot for the perpetration of his horrid deed. In the drapery of the Night he wraps himself — and at that hour when " O'er the one half world Nature seems dead, and wicked dreams abuse The curtain'd sleeper," he steals forth to the accomplishment of his bloody design. Afraid of his own movements, he is compelled to address the very Earth itself in the language of supplication — and entreat it to " Hear not his steps, which way they walk, for fear The very stones prate of his whereabout." Another feature of the case to be borne in mind by the jury is this : the extraordinary character of the opening of the learned counsel for the Government. It was an able, it was an eloquent production. It reflected credit upon the mind from which it eman- ated, for it was stamped with a high order of ability ; but it will [be for you, gentlemen, to say, when you pass that opening in TRIAL OF DANIEL E. SICKLES. 137 review before your minds, whether or not it was warranted by the humanity that should ever attach itself to his position. You will remember the extraordinary expressions of the " prisoner coming to this carnival of blood," of his being " a walking magazine," of his "adding mutilation to murder," of his "standing bravely over his victim," as though with dagger drawn ready to plunge it in his bosom. Gentlemen, you would have thought, from his opening, that the learned counsel for the Government was describing a case of the most deliberate homicide — and yet the case he was describ- ing was the case of a man who, while acting from a sense, and under the influence of a sense, of right, was nevertheless, no doubt, at that particular juncture entirely bereft of his reason. At tne time he alluded to the magazine, which he described as being in the possession of the defendant, did it occur to the , earned counsel for the prosecution to describe also the weapons that were in the possession of the adulterer ? For with his opera-glass and white handkerchief he was capable of carrying death just as certainly to the domicil of the defendant, as the weapons with which this defendant was provided, were capable of carrying death to hi;n. The sight of that opera-glass, and those other appliances with which the deceased was furnished, in the prosecution of his unhal- lowed purposes, were just as certain death to the happiness and hopes of the defendant, as though the pistol of that adulterer had been presented at his breast. * * * % * * * * # * Gentlemen of the jury, I ask you this : Why is it that this prose- cution is thus technically managed ? Is there anything behind, which, if it escaped, would satisfy this jury that this is an unhal- lowed prosecution ? I do not mean by this to impeach the integ- rity of the authorities in any way ; I use the word unhallowed rather in the sense that it ought not to succeed through the instru- mentality of an intelligent jury. Is there anything in this prose- cution which requires that the case should be tried in the way in which it has been tried; that from this jury all but property- holders should be excluded ; that in the opening address of the learned counsel for the Government the occurrence should be pre- sented under a hue which the facts do not impart to it ; that strong extra counsel should be employed in order to sustain the prosecu- tion ; and that witnesses should be examined in a particular lorm so as to exclude from the ears of this jury, that fact which, when »it becomes a part of this ease, must incline the scale in favor of the defendant ? It will be for you, under all the circumstances as 138 MODERN JURY TRIALS.' I have presented them to you, to account for these extraordinary features in this prosecution. In relation to your province, gentlemen of the jury, as I under- stand it, the court has invested you with the largest powers. I have read several of the charges of the learned judge upon the bench to juries, and I find that he is imbued with a spirit which has been only exemplified in an equal degree in one instance, to my knowledge, by any other jurist, and that is by the great Chancellor Kent. The greatest champion that juries ever had in this country was probably that great and now deceased jurist ; and the same spirit which seems to have entered into the instructions and judgments of that learned jurist, with reference to the rights of juries, appears to influence the learned judge upon the bench in relation to your 'province. As I understand the law of this court, every fact is to be passed upon by the jury — not only the facts entering into the occurrence, which is charged as a crime, but the state of mind — the intention — the motives — that impalpable influence, if there was such an influence — which set on the defendant to the commission of the act, for which he is now arraigned as a criminal before you. So far as the definition of offenses is concerned in this case, resort is to be had to the common law of England; and the trial by jury, in this district, is to be according to tire course of that same com- mon law, except as modified by the genius of our institutions, or as changed by the Constitution and laws of the United States, or the law of the State of Maryland, as continued over this district by Federal legislation. As to the crimes claimed to be involved in this proceeding, let me first ask your attention to the definition of " murder," as given in 4th Blackstone's Commentaries, page 195, a book of the highest authority, and the law, as here laid down, is to control you in the discharge of your present duty. Blackstone, borrowing his definition from Coke, thus defines murder : " When a person of sound memory and discretion unlawfully killeth any reasonable creature in being and under the king's peace with malice aforethought, either express or implied." We have no king, and therefore, to carry out this definition, we must substitute in place of " the king's peace," " the peace of the People of the United States." I shall, in another branch of the case, consider this question, whether at the time of the death of the deceased, he was in the peace of the People of this great government, whether the adul- terer, when he goes forth upon his mission, does not cease to be in the peace of the community, and whether he is not makino- direct war upon those great fundamental principles upon which not only TRIAL OF DANIEL E. SICKLES. 139 the institution of marriage itself rests, but upon which our social fabric is founded. The definition of manslaughter is given on page 191 of the same book. It is there thus defined : " The unlawful killing of another, without malice either express or implied, which may be either voluntarily, upon a sudden heat, or involuntarily, but in the commission of some unlawful act." The difference between murder and manslaughter (as was stated by the learned counsel for the Government), is this : the one is supposed to be committed in cold blood as the result of premedita- tion, and the other is supposed to be committed in a state of heat resulting from passion, but resulting from passion which ought to be controlled, but is not controlled ; for passion which cannot be controlled is not passion which places any man within the pale of • criminal accountability. In this connection let me also ask the attention of the court and jury to Foster's Crown Law, page 290, which, although it is an old treatise, nevertheless is one of the purest and most reliable oracles from which legal knowledge can be gained. This author says, speaking of manslaughter : " I now proceed to that species of felonious homicide, which we call manslaughter, which, as I before observed, the benignity of our law, as it standeth at present, imputeth to human infirmity ; to in- firmity which, though in the eye of the law criminal, yet is consid- ered as incident to the frailty of the human frame." I refer, also, to pages 256 and 257 of the same treatise, for a definition of malice. This point is important, for the great question to be solved by the jury in this case is, What was the state of the defendant's mind at the time he slew the man who had contamina- ted the purity of his wife ? That is the cardinal question here. The counsel for the defense noticed, on the first day on which the witnesses for the Govern- ment gave their evidence, that some of the jurors took notes of the testimony given as to the mode or circumstances of the killing; but as we understand or look upon this case, it is perfectly immaterial how death was inflicted; whether it was the result of one shot or of thirty shots; whether the man who was killed stood up or lay down. The inquiry upon this part of the case, at least, is, what was the influence of the provocation he gave, upon the mind of the man who slew him; what was the condition of the mind of the defendant at the time he killed the deceased. If the transaction was presided over by a mind perfectly self- possessed, that may constitute a different question, although, in 140 MODERN JURY TRIALS. some of the aspects in -which I shall hereafter present this case, even that would not be conclusive in establishing that there was any criminality on the part of the defendant. But assuming, for the sake of the argument, that, under other circumstances, the act of slaying would be a crime, then the inquiry is, What was the con- dition of the mind of the defendant at the time of the perpetration of his act ? Serjeant Foster says that the term malice, in this instance, signifieth — " That the fact hath been attended with such circumstances as are the ordinary symptoms of a wicked, depraved, malignant spirit." Do you mean to tell me that the ordinary symptoms of a wicked, depraved, malignant spirit attend the act of the husband who slays the man who has polluted his wife ? What distinction, then, do you draw between the case of a man who slays in order to commit a crime and that of the man who slays in order to prevent the com- mission of a crime ? Unless, gentlemen of the jury, you are pre- pared to find that the act of the husband who vindicates his mar- riage bed, by slaying the man who dares to defile it, is symptomatic of a "wicked, depraved and malignant spirit," there would seem to be an end of the case, upon this branch of it. But to proceed with our author: After saying that malice, in reference to the crime of murder, is not to be understood in the restrained sense of " a principle of malevolence to particulars," he proceeds: " For the law, by the term malice, in this instance, meaneth that that the fact hath been attended with such circumstances as are the ordinary symptoms of a wicked, depraved, malignant spirit." "In the case of an appeal of death, which was anciently the ordinary method of prosecution, the term malice is not, as I remem- ber, made use of as descriptive of the offense of murder in contra- diction to simple felonious homicide. The precedents charge that the fact was done nequiter (wantonly, craftily), et in felonia (feloniously), which fully taketh in the legal sense of the word malice. The words per malitiam (by malice) and malitiose (mali- ciously), our oldest writers do indeed frequently use in some other cases; and they constantly mean an action flowing from wicked and corrupt motive — a think done malo animo (with a bad or depraved mind), mala conscientia (a wicked heart or conscience), as they express themselves." TRIAL OF DANIEL E. SICKLES. 141 The same author further says: "The legislature hath likewise frequently used the terms 'mal- ice' and 'maliciously' in the same general sense, as denoting a wicked, perverse and incorrigible disposition." Again — on the same page: "The malus animus (the evil or -wicked mind) which is to be collected from all circumstances, and of which, as I before said, the court, and not the jury, is to judge [which was the law when this author wrote], is what bringeth the offense within the denomina- tion of willful, malicious murder, whatever might be the immediate motive to it; whether it be done, as the old writers express them- selves, ira (in or from anger), vel odio (or hatred), vel causa lueri (or for the sake of gain), or from any other wicked or mischievous incentive." " And I believe most, if not all the cases which in our books are ranged under the head of 'Implied Malice,' will, if carefully adverted to, be found to turn upon this single point, that the fact hath been attended with such circumstances as carry in them the plain indications of an heart regardless of social duty, and fatally bent upon mischief." Contemplating this proceeding, in reference to the charge of murder, you behold, in these citations, gentlemen of the jury the hideousness of the peculiar, the animating principle of that crime. In order to constitute " malice," as that term is understood in reference to murder, you must find that the act, which is alleged to be malicious, was the result of a wicked, depraved and malig- nant spirit; and if you can ascribe a spirit of that mind to the act of the husband who slays in defense of his marriage bed, then I have the honor to address gentlemen differently constituted from what I supposed you to be. I must now pass on to another subject. Having given you the definitions of murder and of manslaughter, you are required to say, in the discharge of your duty ultimately, whether this case comes within either of those definitions — whether the act of the defend- ant, within either of those definitions, was or is evincive of a crim- inal heart. If it is a crime for a husband to defend his altar, his humble family altar, and if death is to be visited upon him for defending it, then the highest honor that can be conferred upon any man is to compel him to die such a death. Now, three things are to be noticed: first, that human laws do 142 MODERN JURY TRIALS. not shield us in the enjoyment of all our rights; second, that a right created by divine law is perfect, though not recreated by human law; and, third, that to certain relations the divine law has attached responsibilities to execute which is not to commit a crime. The two first considerations are properly discussed together, and, by way of enforcing them upon your minds, we insist that our legal system does not reach the case of every wrong that can befall us. There are certain wrongs which we are not protected against at all by human laws, and therefore the only law which protects us against them is that which is traced in the human bosom by the finger of God — the law of human nature; the law of human instinct. When human laws do not protect us against injury, we appeal to our instincts; we are thrown upon the law of our instincts, and have a right to defend ourselves against those wrongs. This position will be perceived, upon examination, to be well founded. There is no law in this district which says you have a right to defend yourself against attack, except the law of nature. It would be folly to pass a statute to declare that a man may defend himself against the assault of a highwayman; or if a statute were passed on a subject like that, it would be folly to say that, before the statute was passed, you had not the right of defense. Self-pres- ervation is nature's great law, and it overrides all other laws. Two men are floating on a plank, and it is necessary that one should be drowned in order that the other may be saved. It is not murder in the person, who, to save his own life, drowns the other, when two persons are so situated, because the law considers that all social regulations must yield to those great principles which are implanted in us, and are a part of us as we came from the hands of the great Creator. Sergeant Foster, at page 273 of his Treatise, says: "The right of self-defense in these cases (alluding to the cases in which the right can be availed of), is founded in the law of nature, and is not, nor can be, superseded by any law of society. For before civil societies were formed, one may conceive of such a state of things, though it is difficult to fix the period when civil societies were formed, I say before societies were formed for mutual defense and preservation, the right of self-defense resided in indi- viduals; it could not reside elsewhere. And since, in cases of necessity, individuals incorporated into society cannot resort for protection to the law of the society, that law, with great propriety and strict justice, considereth them as still in that instance under the protection of the law of nature." TRIAL OF DANIEL E. SICKLES. 143 "What is the law of self-defense? Is it merely defending your- self, and allowing any person that comes along to slay your wife, or your child? Is that the law of self-defense — or is there not some relative duty cast upon you ? Has the Creator made you so abominably selfish that you satisfy the demands of your nature when you defend yourselves, though you allow the partners of your bosoms, or the offspring of your loins, to be stricken down under your eyes? It is not so, as I shall presently show you; and that involves the consideration of the last of the propositions to which I have thus preliminarily directed your attention. The authority cited proves that, to a certain extent, nature's law is our protection, and that social laws cannot supersede or divest us of that protection, and that as to all rights falling within the pale of nature's law, the great council chamber of Jehovah is the source from which the law is to come. If, as you will shortly see, by numerous citations from Scripture, the adulterer is allowed to be slain by the law of God, and the right of a man to protect his wife against contamination is made a natural right, then, within the authority which I have read to you, it is not in the power of human laws to take away that right from those upon whom it is thus conferred. Do you mean to tell me that, when the great Being above said, " thou shalt not steal," it was not as high a crime to steal before, as it is after human legis- lation has said, " thou shalt not steal ?" When the great Being above said, " thou shalt not kill," and " thou shalt not bear false witness against thy neighbor," those crimes were perfect. He himself pronounced those ordinances. Human laws may enforce them with additional sanctions, but do not impart them additional solemnity. The crimes would be just as great and smell as rank in the nostrils of Heaven, if human legislation should ignore the subject entirely, as if human legislatures had undertaken to embody all that is in the Decalogue in their own statutes. In this district no protection is provided against the adulterer, unless you can pro- tect yourself against him. There is no law which furnishes that protection. What is the inevitable result ? Why, that you are thrown upon the principle se et sua defendendo — of defending your- self and your own. Not to be so abominably selfish as to defend yourself, and let your own be taken from you — bat to defend both yourself and your own. Do you not wish to be as safe against the adulterer as against the housebreaker ? Has society redeemed its compact with you when it protects you from the attacks of the housebreaker by night, but permits your house, when you have left it during the day to pursue your honest toil, to be polluted by the 144 MODERN JURY TRIALS. tread of the adulterer? One reason, then, we are bound to sup- pose, why society has not provided by positive legislation against the act of the adulterer, is that it considers that the natural right of a man to protect himself against that malefactor is as perfect under the Divine law as is his right to protect himself against any other violator of his natural rights. Gentlemen, there is nothing in this doctrine revolutionary or subversive of the peace and good order of society. Where society has protected us, we are not thrown upon the law of self-defense, but where society has not protected us, we are thrown upon that law. In this district there is no law which protects you against the man who would rob you of the affections of your wives, unless it is engraven upon your hearts by the hand of the Great Being who made you. You will see more plainly the importance of this, gentlemen of the jury, when I come to construct the argument which I design addressing you from the Scriptures, as to the heinousness of the offense of the adulterer, as it is stamped upon his act by the law of God. We may assume, then — and I state it as a proposition — that whenever a right is given by the law of God, even though not expi'essly recognized by human law, and the violation of that right is denounced by the moral law as an offense of aggravated hue, to defend oneself against its violation, is acting upon the principle of self-defense. The law says that no man shall enter your house at night to rob it, and that if any one does so, and you detect him in the act, that you have a right to defend yourself and your own against him, even to the extent of taking his life. If human law can give you a right to take away the life of a man when he is committing an offense which it has made an offense, why have not you the same right in reference to the Divine law, when it has declared an offense to be equally heinous with the one created by human legislation '? As will presently appear, under the Divine law, it is a great deal more aggravated an offense to contaminate the wife of your neighbor than to enter his house at night for the purpose of robbing it, and if human law confer upon you the right to kill the burglar, the Divine law can impart to you the right to kill the adulterer. You will bear in mind that I am not insisting that a man has a right to kill even an adulterer, as the result of cold, deliberate thought. This is not such a case; for, unfortun- ately in this case, the deceased was caught, if not in the fact of adultery, at least so near the fact, as to leave not the least doubt of his guilt. The defense regard this as a very important point, and as I am about leaving it, I will state it to you again. We say TRIAL OP DANIEL E. SICKLES. 145 this: That if society has not protected you in the possession of your wives, it is proof conclusive that society meant that your right to their possession should remain as at nature — and that the right to protect the purity of your wives is a natural right which you can assert even to the extent of killing whoever seeks to deprive you of it, as much as you can kill for the purpose of protecting your own lives. We may assume, then, that wherever a right is given by the law of God, even though not expressly recognized by human law, and the violation of that right is denounced by the moral law as an offense of an aggravated hue, to defend oneself against its violation is an act based upon the principle of self-defense. As has been already seen, this is not a selfish principle; it extends to the protection of your own as well as to the protection of your- selves. If you can kill in defending yourself against an offense declared felony by human laws; and be blameless, why not when the Divine law makes an act against you the greatest conceivable offense? It would be an outrage upon all decency to compare a a felony created by a human law with such an offense as adultery is made -by the Bible. I shall show you, by abundant citations from that sacred book, that one of the most serious offenses that can be committed against the Divine law is this crime of adultery. Human laws may enforce obedience to the Bible, by their own sanctions. They may create or multiply penalties — but do they, can they, increase or add to its mSral obligation ? As well might they seek to repeal its commandments, as to lend them any force by re-enacting them! It may be said that Mr. Sickles had a civil remedy, and could have brought an action for damages. Would this h:ive staunched his wounds ? Could the purity of his wife be paid for by a few paltry dollars? Could that course afford any adequate satisfaction for the injury inflicted upon him ? If an individual comes into your house, 'and lies ujion your bed, against your will, he commits a trespass, and you can repel him by force. If an individual comes into your house, and lies with your wife, and robs her, and you, of that which cannot be restored, and for which no recompense can be made, can you not repel this invasion by force? Can your wives be used with impunity when your furniture cannot? What furni- ture for your homes like a wife ! This brings me to the last of the three propositions advanced in this connection, and that is, that there are certain relations to which the Divine law attaches the greatest responsibilities, and which it invests with commensurate powers. Of these, the relations of par- ent and child, and husband and wife, are the most hallowed — the 10 146 MODERN JURY TRIALS. most cherished. It may not be the right of a brother, probably, to slay in the defense of a sister, unless he should be present at the time an offense was attempted against her person — because the attachment which connects a brother with a sister is one of love — they come from the same parents. The relation, however, which exists between parent and child, and husband and wife, is not only one of love, but of protection. For such relations, the Divine law has created the duty of protection, and the right to kill in the dis- charge of that duty is a proper one, and cannot be questioned by a human tribunal — at least, provided the circumstances under which the killing takes place are such as not to note that extreme malice of the heart against which social laws are designed to protect us. It was this idea of inferiority on the part of the wife to the hus- band which made the act of the wife, where she killed the husband, what the common law, in olden time, denominated parva proditio, petit treason. High treason, at common law, was rebellion against the sovereign, insubordination toward the government — but petit treason was the insubordination of the wife to that yoke which her relations require her to wear, as it were, upon her neck. The rising of the wife against the husband was as much considered the rising of an inferior against a superior, as the rising of a subject against the sovereign ; and the law, by way of characterizing the enormity of the act on her part, denominated it petit treason, in analogy to that offense which, when attempted against the government, con- stituted high treason. The law, in this respect, is founded upon the Divine law, for the mandate of the Bible, to wives, is, " Love your husbands, obey them, submit yourselves unto them." The husband is the protector — the master of the wife. Her sex is sup- posed to render her unable to protect herself, and hence it is the duty of the strong arm of the man to defend himself and his wife against the wrongs which may be inflicted upon them, either with the connivance of the wife, in which case she is to be regarded as the slave of her own frailty, or as the result of violence on the part of another. We know that it has been said, "Frailty, thy name is woman." With all our exalted conceptions of the perfection of female char- acter, who is not compelled to acknowledge its extreme frailty ? And it is because of this inability to resist herself and others, we find it written in the revealed Word of Heaven that woman is to be placed under the protection of man. I hold it as a principle, that he who gains the affections of the wife in defiance of the authority of the husband, commits as great a crime against that husband as if by force he had taken her person. It is, therefore, the sacred TRIAL OF DANIEL E. SICKLES. 147 duty of the husband to look to the affections of his wife, to control them, and, above all, to see that they are not stolen from him by the insidious practices or machinations of the adulterer. He is the owner of them, and bound to secure them against the weakness of female nature. It is upon this principle and upon this obligation, the institution of marriage is created. Woman is the weaker ves- sel; man is the stronger vessel; and it is the duty of the man to make up for the shortcomings of the woman. In guarding the wife's honor, the husband guards his children. He owes it to them, to keep the stigma of her disgrace from them. ' It is a well settled legal principle, that every man's house is his castle — for the security of himself and his family. The word " castle " is a term of the law. It does not signify that a man keeps his family within battlemented walls — but it is used as a figure of speech to denote that his residence, though it be a hut which can neither keep the rain nor sunshine from penetrating its roof, is nevertheless, for every moral and legal purpose, as much a fortress as if it were constructed for one. The thatched roof, the humblest hut that rears itself to the most limited height in the face of heaven, is as much a castle for the protection of a man's wife and family as though it were a castle in reality — and whoever enters it, even though it be by his invitation, in the guise of a friend, but in reality as a seducer, is a trespasser upon that home. That is the principle I want to strike home to your hearts upon this occasion. Under such circumstances you have the same right to eject him from that castle that you would have had had he entered against your will. It is purity of heart only which entitles him to embrace the privilege you have accorded to him. This brings me to the fourth question in order, which was — as to the reason, or principle, or meaning of the old rule, that homicide committed by the husband on discovering his- wife in adultery, either by slaying the adulterer or adulteress, is manslaughter. Not only can the husband slay the adulterer, but if the guilty parties be together, he can pick from them and slay either or both. Now, the question, if the court please, is this : Does this rule, which made the killing of an adulterer manslaughter or a merely nominal offense, apply only to cases where the guilty parties are caught in the act ? If so, the husband will have to wait a very long time before he becomes vested with the rights which such a rule would give him. Such a thing may have happened, but if the husband never has his right to slay the adulterer until he catches him in 148 MODERN JURY TRIALS. coition with his wife, in the natural course of things he will never have the right at all. That is all that any husband can expect — imputation and strong circumstances leading directly to the door of truth; and if he is never invested with his right to kill until he has more than that, then it is denied him altogether ! Is not the man who discovei - s some sign, after the admission of guilt by his wife, corroborating her statement, as much the victim * of passion as though he had surprised the adulterer in his guilt ? Does it make any difference how the knowledge is gained ? Is the spectacle more exciting than the belief? It is when suspicion changes into proof, when the mind can no longer lay hold of or reason upon doubts, that the tumult of the passions commences, and while it rages it is vain to try to assuage them. By the law of England, it is treason to defile the queen consort or regent, and also the heiress apparent, but not the queen dowager. The reason is, it puts a spurious heir upon the government, and the crown, in that way, might pass into illegitimate hands. We have no government here transmitted by inheritance, unless it is the government of families; but is not the diadem of the family honor as dear and costly as any that ever graced a monarch's brow ? Where is the man who does not contemplate the honor of his family as it flows from father to son with the same reverence and attachment with which he would contemplate the governmental crown as it passed from the head of thei incumbent to his succes- sors ? You, all of you, know the loyalty of an Englishman to his government. Allegiance was never more strong than is that of the subject there to the sovereign. And if attachment like that can grow up between individuals and the government that grinds them down, how much stronger must be the attachment that grows up between the members of the same family ! Let the same sanctity that attaches to the nation's queen attach to the queen of every family altar. Shall the palace be purer or securer than the hut ? Shall one's lawful children mix or commune with the living monu- ments of his wife's inconstancy ? Shall the offspring of another man divide with one's lawful children their patrimony ? Shall every door be swung open to the adulterer ? As thrones and crowns do not go with us by birthright, let the aagis of the law ex- tend itself around every family castle. Cuckold! Who would live to have it written upon his back ? What man so made of flint that he could walk in the presence of his fellow men, and feel that some person was secretly smirking or smiling at him, because he knew, if he did not know, of his wife's inconstancy? What is the TRIAL OF DANIEL E. SICKLES. 149 choice ? The choice is for the injured husband, in the midst of his agony and despair, to lay violent hands upon his own life, and leave the course free to his wife's seducer, or to lay those violent hands on the life of him who has justly forfeited it. Remember that we were made in the image of the great Creator. Man was made erect, and to walk erect upon the face of the earth, and when the immortal soul was breathed into his nostrils, he was invested with dignity of character, and with instincts to protect that dignity of character ; and in the same way, in which his instincts tell him that his God lives, he is told to defend his dig- nity, even to the extent of his own or his neighbor's life. This brings me, if the court please, to the last consideration in connection with this subject, which constitutes the fifth question I proposed to the court, viz : what was the effect of the rule which lowered or reduced such a killing to manslaughter ? I design showing that it was equivalent or tantamount to an acquittal, that the rule at common law, which made such an act manslaughter, was, in effect, declaring that there was no offense, or so light an offense as not to be worthy of punishment. It is important for you, gentlemen of the jury, to know some of the facts of which he was aware at the time of his collison with the deceased. He knew when he met Mr. Key, on the afternoon in question, that he was about his house for the purpose of making an assignation with his wife. He knew that he had hired a house but a few blocks from his mansion, where he met his wife. He knew that he had the aid of a park, and a club-house, and an opera glass, which enabled him to see whether or not it was safe for him to approach his habitation. The thing was well considered by Key ! He hired the house in a part of the city from which he thought no witnesses could come against him; in a part of the city populated chiefly by blacks, where, from his legal knowledge, he knew that facts seen by them were not seen at all. All the wea- pons which, as an adulterer, he required, he had about him on the afternoon of this fatal occurrence. He wanted no Derringers to accomplish his end. And although there is no proof before you to show that he was not armed at that time, the evidence to be adduced on the part of the defense will be that he was a man who was in the habit of carrying arms. He was provided, no doubt, with all that was necessary to protect his life. At all events, he was furnished with all the means serviceable to him in the pursuit of his adulterous intentions — his white handkerchief, the signal of 150 MODERN JURY TRIALS. Assignation — the adulterer's flag — -and the other appliances of an adulterer's trade. Mr. Sickles knew that Key was in the habit of carrying his opera-glass. He knew that he was in the habit of availing himself of the club-house and park, and that he had been frequently seen about there for the purpose of making an assignation with his wife. He had no knowledge that he was coming there that afternoon, and he saw him without any forewarning whatever. But he knew what the purpose was that brought him there. "What, then, must have been the condition of his mind ? Mr. Sickles did not invite him to that vicinity. The meeting was the result of accident, and when his eyes rested upon the destroyer of his happiness, he asso- ciated him at once with the facts he knew, and went forward, in the transport of his rage, to the consummation of the deadly scene. I state these facts that you may be able to appreciate the point I am discussing. Is it possible that, under these circumstances, Mr. Sickles could have acted in cold blood ? Was it jjossible for him to know what he did of the relations of Mr. Key and his wife, and yet look upon him, even though he saw him accidentally, and preserve his equan- imity ? If Mr. Sickles was excited, was it an instance of passion unduly excited ? If he was in a state of white heat, was that too great a state of passion for a man to be in who saw before him the hardened, the unrelenting seducer of his wife ? Mr. Key did not yield to temptation in an erring moment. It was not while any sudden fit was on him, he deflowered the wife of his friend ! It was a deliberate and systematic crime from beginning to end. Though he has passed from the scenes of the living, and though he may be entitled to be kindly remembered in other things, so far as he forms the subject-matter of this inquiry, his faults are to be exposed in their proper hues and with all their aggravations. As to the amount of excitement which resides in that provoca- tion, it is not necessary for you to speculate, because it has been conceded by the flintiest-hearted judges that ever presided over the administration of criminal justice, that jealousy is the highest rage of man, and adultery the greatest provocation that can be given to him. I had, in the same connection, also considered the rule making the slaying by the husband of his wife's adulterer man slaughter at the common law. I had left off in the consideration of one of the gravest questions arising in this case, the question as to whether there could be any criminality, when the mind was in a condition which exorcised from it all will or intention. We understand the basis of accounta- TRIAL OP DANIEL E. SICKLES. 151 bility, divine and human, to be the possession of that amount of reason which enables us to know the right way, and of that amount of reason which enables us to select it; in other words, in the lan- guage of the criminal law, " intention is the essence — the soul of criminality." In the case of every crime there is a body and an animating principle, precisely as in nature. Every crime is divided into two parts; first, the corpus delicti, as it is called — that is the body of the offense — and it is a mere dead, inanimate body, with- out that exciting principle which gives it life; secondly, the inten- tion, or will, which enters into it. Although, in the present case, a human being was slain, never- theless, we say the soul of that act, that which could turn it into a crime (if it could become a crime at all), was never infused into it; that there was not that will or intention on the part of the slayer, at the time of the perpetration of his act, which rendered him amenable to a criminal tribunal. The proposition I had submitted on this point was this: that whether the state of mind was pro- duced by disease, or provocation, was perfectly immaterial; the inquiry for the jury was, what was the state of mind, and I submit to yon that that is a proposition founded in sound reasoning. Is it material how a result is accomplished, so long as it is accomplished ? There is one exception to this rule, and that is, where a man takes into his mouth, voluntarily, that which steals away his brains, the law says that he is responsible for every act committed under its inflence; for its maxim is, "nam omne crimen ebrietas, et inccndit, et detegit," drunkenness both inflames and discovers the crime com- mitted under its influence. In this case, however, there is no such thing, for Mr. Sickles was not a party to the origin of the provoca- tion, which acted upon him and induced him to the commission of his act. There might be something in favor of the prosecution, if that ground could be occupied by it, but he stood entirely clear of the conduct of this adulterer, was in no way privy to it, had never connived at it, and the first knowledge he gained of it was the moving cause to the commission of the act for which he is now arraigned before you. Gentlemen of the jury, I ask you this: If the brother who vol- untarily assumes to redress the wrongs of his sister, to the extent of killing, when the father of that sister, her divine, her human protector is in being, for where the parent exists, no peremptory duty is cast upon the brother to defend the sister, unless where vio- lence is inflicted upon her in his presence (or in similar cases), and the same duty is cast upon the stranger who witnesses its infliction; if the brother who does that stands excused by the verdict of a jury 132 MODERN JURY TRIALS. from the consequences of this act, because the provocation was too much for him, upon what principle can a difference be indulged or a distinction drawn as to a husband intervening to avenge an out- rage upon his marriage relations? These are all the authorities to which it is necessary for me, in the hearing of the court, to ask your attention upon this branch of the point I am engaged in con- sidering. As to the third division of this subject — how far the mind of the defendant coincided with the established legal tests of mental unsoundness at the time of the killing in question — I shall occupy your attention but a few moments upon it. You can answer, this as men, as husbands, as fathers, as brothers. We need no books here to tell you with wHat affections the human mind is endowed. It is a matter for your own common sense. Your own innate feel- ings will serve you better, in reference to this, than the citation of authorities, or any enlightenment of mine. You are qualified to respond to the question, as to what must have been the frenzy of Mr. Sickles, when he encountered the deceased under the circum- stances leading to his death. There was no deliberation in the meeting. It was purely accidental. If he had thrown out a bait — if he had invited the deceased to that vicinity, in order that he might go forth from his mansion, armed, in the fearful manner painted by the learned counsel for the Government, and slay him, there would be a feature in this case which might appall us. There is no such feature here. Mr. Key was in the neighborhood of Mr. Sickles' mansion, following the bent of his own infamous and wicked inclinations. The very ferocity of the attack upon the deceased, as testified to on the part of the prosecution — the mur- derous character which they have tried to impart to it — proves conclusively the state of mind which actuated and prompted the defendant to his act. This is a speaking fact. He encountered the deceased without any exjjectation of doing so. He met him as casually as though he had met the veriest stranger; and the fero- ciousness with which the witnesses for the prosecution represent him as assailing the deceased, is indicative of the impulses — the irresistible impulses, which drove him on, and to which it was impossible to oppose any resistance. Reflect, again, for a moment, upon the fearful tenantry of the human breast. The emotions are there. The passions have their abode there. Shame, anger and grief claim it as their residence. How must they have been excited in this defendant, over the provo- cation they received ? Could reason exert any sway over them ? Amid such a tumult, what voice could be heard ? To what tones TRIAL OF DANIEL B. SICKLES. 153 could the ear of the mind incline itself ? Where was the free agency of the defendant, then ? Where was his will ? Where, his intention ? Who will call such a condition passion ? It is an exag- geration of the feeling — a misuse of the term! As one of his counsel, I maintain that the act of the defendant was committed while in a state of mind such as the circumstances would naturally, necessarily engender, and the humanity of every man can understand the meaning and force of the remark ! Begging you, gentlemen of the jury, to keep in view these con- siderations, namely: That the defendant was in no way connected with, or responsible for, the conduct of the deceased; that he neither countenanced nor promoted it; that it was a direct invasion of his most sacred rights; that it involved, not merely the over- throw of his household, but the destruction of his own self-com- posure and happiness; and that he executed judgment upon the deceased while almost in the act of flaunting the adulterer's signal. I shall proceed to give you a brief narrative of the facts of this case, and then commit it to you, so far as my present duty is con- cerned. Who, let me ask you, were the parties to this transaction ? As I have said before, I shall speak no unkind word of Mr. Key. I shall place the facts before you, and leave them to speak to you. He was a man of mature years. He was a man about forty years of age, as I am informed. He had been a married man; and at the very time of his misconduct, he had the monuments of that sacred relation before him, daily, to warn him of the wickedness of his course. He himself had assumed the marriage vow, and he knew the solemnity of it. He could tell himself what would have been his own feelings, if his own home had been dishonored; and he could very well have conceived how he would have acted, if he had discovered the author of that dishonor. He could appreciate the horror of a wife's disgrace! His profession was such' as should have imparted some gravity to his character. There are some occupations which do not inter- fere with the frivolity of human nature; but if there is any pro- fession in the world, short of the pulpit, which ought to communi- cate gravity to human mind, it is the profession to which I belong. The very business of our profession is to study out the rights of other men, and to observe them; and therefore a lawyer, above all others, before every tribunal, whether it be erected in the arch of the heavens above, or upon the face of the earth, is entitled to the least charitable consideration, for such misdeeds as are wanton encroachments upon what belongs to his neighbor. What, too, was his position ? He was the prosecuting officer for 154 MODERN JURY TRIALS. this district. He was selected to conserve the cause of public morality and public decency. It was his business to see that your homes were protected against seducers and adulterers, and every other species of criminals. Yet he robed himself in the garb of hypocrisy, came into this court, and hunted down, with almost unparalleled success, the very worms that crawl upon the face of the earth, while full-grown men in crime, such as he himself was, were permitted to stalk about this country not only unpunished, but not even admonished or reproved. If there ever was a case in which a man, though tempted by a woman, should have imitated the example of Joseph, who left his garment in the hands of Potiphar's wife, this was one, above all others, in which the man, rising above the dominion of his passion, should have left behind him some proof which, by the mendacity of the woman, could have been perverted into evidence of his guilt. Who was the husband in this case ? He was a man, as I under- stand, some years younger than Mr. Key. He was accredited to your city, as a member of the councils of the nation. He came here from the great commercial metropolis of the continent — -a city upon which every part of this Union looks with pride, and which, however objectionable some of its features may be, nevertheless will be conceded by every American heart, to be the first city of our Union. He was here in the way of duty, and by way of show- ing Mi - . Key, and you, his confidence in the protection which was guaranteed to him by the laws of the district, he brought within its precincts his wife and child. He threw them, with himself, upon your laws for protection. What were the relations of Mr. Sickles ? We shall show you what they were. So far as Mr. Sickles was concerned, they were those of sincere friendship; so far as Mr. Key was concerned, they were those of professed or avowed friendship. It has been said by the Psalmist: " For it was not an enemy that reproached me; then I could have borne it; neither was it he that hated me that did magnify himself against me; then would I have hid myself from him. " But it was thou, a man mine equal, my guide, my acquaint- ance. " We took sweet counsel together, and walked unto the house of God in company." The wrong of the stranger may be borne with patience, but the perfidy of a friend becomes intolerable. You will be shown, gen- TRIAL OP DANIEL E. SICKLES. 155 tlemen, that Mr. Sickles had interceded to have Mr. Key appointed to the very place which his private life disgraced; that all the influence he could wield to secure for him the elevated position of prosecutor at the bar of this court, was thrown into the scale for the purpose of enabling him to attain the object of his ambition. We will show you that Mr. Sickles had sent him private clients, and that on one occasion, when he was obliged, in consequence of a difficulty relative to the hiring of a house, to employ prof essional services, he retained Mr. Key as his counsel in opposition to the other counsel for this prosecution (Mr. Carlisle) ; so that there were not only friendly, but professional, relations between them, which it ought to sink any man to the lowest depths of disgrace to think of compromising. Mr. Key pretended that he was in bad health. I say pretended, because, although he had not strength enough to encounter the sphere of duty which was assigned to him here, nevertheless, he had strength enough to carry out his designs in reference to the wife of his neighbor. Had he extended to this court the same energy which he exerted in the prosecution of his adultery, he would have been physically, as he was mentally, adequate to dis- charge every duty which devolved upon him. He becomes a visitor at the house of Mr. Sickles. Their acquaint- ance, I believe, extends back some six years. Mr. Sickles is a man in public life. He is compelled to trust to the purity of his wife. He is compelled, sometimes for considerable periods, to be away from his family mansion, and to leave his wife under the guardianship of her own chastity. Mr. Key goes there in the character of a friend, and exhibits those attentions which gallantry is ordinarily supposed to prompt, and in that way laid the founda- tions upon which, as an adulterer, he sought to rear his destructive fabric! "We will show you, gentlemen, that as early as the twenty-sixth of March, 1858, it was reported, so as to be heard by Mr. Sickles, that this Key was dishonoring him. Mr. Sickles sends for him. He stands upon his honor as a man. He denies the truth of the impeachment. .He traces the author from one to another. He sends and passes notes, and when he is unable to discover the real author of the rumor, he represents it to be the work of calumny. He addresses a note to Mr. Sickles, speaking of the ridiculous and disgusting calumny. We will be able to show you that if the inti- macy with Mrs. Sickles did not exist at the time of that note, it, at all events, commenced a few days afterwards. To show you how base he is — when he is charged with dishonest conduct towards 156 MODERN JURY TRIALS. Mr. Sickles, he says this is the highest affront that can be offered to him, and that whoever asserts it must meet him upon the field of honor, at the very point of the pistol! He thus cuts off all com- munication, on the part of the world, with Mr. Sickles, thinking that his baseness would, thereby, go undetected; and that was the reason why, for a period of nearly a year — though he was, no doubt, almost daily in the practice of his treachery upon his friend — his friend, until the development came upon him, as I shall presently state, never harbored a thought of suspicion against him. We will show you, gentlemen, that from this time until the twenty- fourth of February, 1859, his relations to Mr. Sickles appeared perfectly friendly, and that Mr. Sickles reposed every confidence in him. ******** On the Thursday before Mr. Key's death, Mr. Sickles had another dinner party at his house. Mr. Key was not invited to it. After dinner, his wife accompanies some friends who have been at the dinner to Willard's hotel, for the purpose, as she says, of enjoy- ing a hop there. Mr. Sickles goes there after her. When he enters the room, he finds Key sitting by her; but as soon as Key sees him he abruptly leaves the wife. Nothing but his own sense of shame could have prompted him to it ! On returning home, and opening his letters, Mr. Sickles finds an anonymous letter among them, which was the origin of the discovery of his wife's inconstancy, and will be produced in evidence before you. The substance of that letter was, that his wife was in the habit of meeting Mr. Key at a house on 15th street, between K and L — that Key had hired the house for the express purpose, and had as much use of her person as he (her husband) had. The nature of Mr. Sickles would never have permitted him to trust to an anony- mous letter, if framed in the ordinary manner. He is a man of elevated character, and would treat an anonymous communication with contempt. But there was a degree of circumstantiality about this letter; it went into details, located the house, and gave him such an inkling of facts as satisfied him there was something requiring investigation. He institutes one, and becomes satified of all but the identity of the person who visited the house. It turned out, on inquiry, that there was a house located where this was described as being, that Mr. Key had hired the house, and that he was in the habit of going there sometimes with, but oftener to meet, a female, who went in either before or after him. The only question, then, left for Mr. Sickles to solve was, whether the female who came to the house was his wife or some other person. TRIAL OF DANIEL E. SICKLES. 157 On the following day (Friday), Mr. Sickles commissioned Mr. Wooldridge, his friend, to inquire into the identity of the woman who accompanied Mr. Key to the house in question. We will show you the circumstances under which he commissioned him to do this. Mr. Wooldridge went to 15th street and arranged with the person occupying the house opposite the one rented by Key, for the use of a front room, on the next day, to enable him to watch and see, in case the woman came there on that day, who she was. While there on Friday, he understood that the woman had last been at the house on Thursday. Having made the arrangement for the use of the room on the next day, he returns and informs Mr Sickles that the woman was last seen at the house on Thursday. On Saturday he goes to the house, and, from the room which he had engaged, he watches for from five to six hours, and, not dis- covering anything, returns to his boarding-house, and learns that Mr. McClusky, who, I understand, is an attendant at the capitol, had been there for him with a note, and while there Mr. McClusky returned and delivered to him a note from Mr. Sickles telling him "to be exceedingly tender in the prosecution of his inquiries, for he has reason to believe that his wife is innocent, and that he wishes her to emerge from the suspicion she rested under, without the public becoming possessed of the imputation which the anony- mous letter had cast upon her." As soon as Mr. Wooldridge receives the note, he goes to the capitol and there sees Mr. Sickles, and he is then under the necessity of disabusing his mind and dis- appointing the hope he had indulged as to the fidelity or constancy of his wife. As soon as he saw Mr. Sickles, he told him that while at the house opposite the house in question, on 15th street, on that Saturday, he had learned that it was on Wednesday, and not on Thursday, the woman had last been there. Of course Mr. Sickles, having by inquiry satisfied himself that his wife was not at the house on Thursday, when the day was shifted to the right one, lost all confidence in her innocence. He then became satisfied that it must be his wife. Mr. Wooldridge described the articles of dress which the woman who accompanied Mr. Key wore when she went to the house, and Mr. Sickles at once recognized the apparel of his wife. Conviction more and more fastens itself upon him, and he finds the hope he had indulged that she was pure, because she had not been to the house in question on the Thursday before, a fallacious and delusive one. He returns home; he questions his wife; he puts her guilt to her in such a way as that she thought she had been exposed, and, under its pressure, she acknowledged her dishonor and fur- nished him with a written confession of it. As soon as this con- 158 MODERN JURY TRIALS. fession is given to him, lie sends for Mr. Wooldridge, by note, and directs him, if he receives it before ten o'clock that night, to come immediately to his house, or, at all events, to come early the fol- lowing morning. Mr. Wooldridge was out when the note was sent, spending the evening on some jovial occasion, some presenta- tion or other, and did not return to his boarding-house till near midnight, and of course did not get the note in time to see Mr. Sickles that night. On the following morning, between ten and eleven o'clock, he went to the house of Mr. Sickles, and there he found him a perfectly frantic, frenzied man. Mr. Sickles comes in, throws down the written confession of his wife, tells him that the whole story has been acknowledged, and Mr. Wooldridge, with his own eyes, reads her guilt as it is embodied in her statement. We will be able to show you what the anguish and grief of Mr. Sickles were at that time. The day before he was unwilling to relinquish the idea that his wife was pure, but the proof thickened too strong against her, and he was compelled to abandon the hope of her innocence with reluctance. How must his anguish have been heightened when he discovered that her guilt was an undoubted fact ! If Mr. Sickles was not perfectly demented at the first knowledge of his shame, how must his frenzy have been heightened as he had to impart the knowledge of that shame to his friends, one by one, as they entered his mansion? Grief, when its cause is shame, becomes tolerable to a certain extent when we can keep our shame to ourselves. Is it not the tendency of human nature to bury such secrets in one's own bosom? There are griefs which we delight to impart to others. When the icy hand of death has closed in its sleep the eyes of a relative or friend, we delight in imparting our anguish to those who come with warm hearts and cordial hands to administer to us the balm of consolation. But when the cause of grief is Shame, Man hides his diminished head, for he feels that it is diminished by the disgrace which afflicts him. Gentlemen of the jury, I ask you what must have been the anguish of Mr. Sickles at this time? He had not only the first knowledge of his wife's infidelity to contend with, but, as his friends presented them- selves, one by one, he was forced to tell them, as an explanation, of his condition, of her dishonor and her downfall. The scene which took place while Mr. Butterworth was at his house will be described by Mr. Wooldridge. Some considerable time before Mr. Butterworth came there, the colored man servant, on raising the shade of the front window of Mr. Sickles' library, saw Mr. Key, and remarked it to Mr. Wool- TRIAL OF DANIEL E. SICKLES. 159 dridge, who looked, and saw him come through the gate of the park and across the street, in which Mr. Sickles' house was, and go up past the President's mansion. Key, no doubt, was perfectly- desperate on this occasion. He had not seen Mrs. Sickles since Thursday. He had not been able to get signals to or from her. All communications had been cut off. He had hired his house for nothing. Days had gone by since he had rifled the casket of his friend's affections. Like all libertines, he was "eager for the fray" of his passions. He was carried headlong by them, and was shamelessly, " in the soft gush of the Sabbath sunlight," watching the castle of his neighbor. You can account for Key's conduct on that memorable Sabbath in no other way. It was between twelve and one o'clock in the day, when Mr. Butterworth first came to Mr. Sickles' house. After he had been there some time, passing through the harrowing scene that was enacted on his first meeting with his wronged and injured friend, he left, saying that he was going to Willard's Hotel. When he had been gone about ten minutes, Mr. Wooldridge looked at his watch, and it was twenty-five minutes to two o'clock. Almost immediately after this, as he (Wooldridge) sat at the front library window, he saw Key passing the house on the opposite side of the street, going toward Pennsylvania avenue. He was with a lady and gentleman, walking on the outside of them, next the curb- stone. As he passed, he took out a white pocket-handkerchief, and waved it towards Mr. Sickles' house, looking at the same time toward the upper part of the house. When he got to the avenue, he shook hands with the gentleman, and entered the park, and the trees hid him from Mr. Wooldridge's view. The gentleman and the lady went down the avenue, on the outside of the park. Mr. Butterworth returned in a few moments, and as he entered, Mr. Wooldridge told him what he had seen — that Key had just passed. " You did not tell Mr. Sickles ? " said Mr. Butterworth. " No," said Mr. Wooldridge, " I could not find it in my heart to do so." They were resolved to keep it from Mr. Sickles if they could, that Key was prowling on the outside of his mansion, with dishonorable intentions toward him. Instantly Mr. Sickles came down stairs. I do not fill up the interval between Mr. Wooldridge's coming there on that day, and this point, with a minute statement of what Mr . Sickles said or did. It would occupy too much time. At this point he rushed down stairs in a perfect frenzy. He had seen Key pass with the lady and gentleman, and wave his handkerchief. We have under- stood that the prosecution mean to try to show that the handker- 160 MODERN JURY TRIALS. chief was waved at a dog, which, at that moment, happened to. cross Key's path. He must have imagined sometimes that he saw! dogs, for, on some occasions, we will prove, he waved it when there was no other object in view but Mrs. Sickles or her house to wave it at. It was, however, his signal for an assignation. Mr. Sickles now knew that his wife had been dishonored by this man; and, also, the meaning of the wave of the handkerchief. He was frenzied. We will show you that so close and compact were the occurrences at this time that the inmates of the house did not know, until they heard that Key had been shot, that Mr. Sickles was out- side of the house. Mr. Butterworth left the house again. Mr. Wooldridge saw him go down the steps of the stoop. He was alone. Mr. Sickles was not with him. Mr. Wooldridge went to the drawing room, and got the stereoscope that was there — brought it to the front library win- dow, and as he was arranging it on the window-sill, he saw persons running to the farther corner of the park. He did not dream that Mr. Sickles was outside of the house, until a colored girl came to the house and announced that Key had met his death. Reflect, gentlemen, for an instant upon the condition of Mr. Sickles' mind at this juncture. The night before his wife had acknowledged her guilt; he had passed the night without sleep; he had sighed and sobbed it away; as his friends came in he was compelled to unbosom to them the story of his wife's dishonor; to crown all, he saw the adulterer, his flag floating, as it were, for the purpose of inviting or enticing his wife from her home. It is for you to say, from these facts, what must have been the condition of his mind at the time he went into the scene that resulted in the death of his wrong-doer. After specifying a few other facts, I have done. Why was Mr. Key constantly in the vicinity of Mr. Sickles' house ? We will show you that he lived in another part of your city, a very consid- erable distance from it. Yet he was in the habit of riding by it on horseback, at all hours, and of showing himself off, in every way he could, to the greatest advantage. In his intercourse with Mrs. Sickles, too, he resorted to and practised all the blandishments which adulterers study and cultivate, to reach the target they have set before them. How did he make his assignations? If he encountered her in the President's mansion, he made them there. If in the mansion of some senator, he made them there. He tainted, with his vile appointments, the atmosphere which your wives and daughters — the virtuous females of this district — were obliged to breathe. The very air about was laden with them. He followed TRIAL OP DANIEL E. SICKLES. 1G1 his object wherever she went. She could hardly get more than a hundred feet from her house, before he was, unexpectedly, by her side. If she walked, he was on foot. If she was riding in a car- riage, it was stopped, and he got in, and rode with her for two or three hours; and the directions to the driver were, that it must be driven through the back streets. He became a subject of kitchen comment. He was called by the servants "Disgrace." That was the name bestowed upon him by the kitchen department of Mr. Sickles' house. The district attorney of the county of Washington had become a by-word and a reproach in the kitchen of one of the houses in the district; and as often as he entered the house, or was seen approaching it, the remark was made, "here comes Disgrace." • * * * Even the servants in the house felt the pressure of his infamous intentions to the defendant's wife. We will show you, gentlemen, that between the twenty-fifth of January and the twenty-fifth of February last, Mrs. Sickles and the deceased were seen to enter the house on Fifteenth street from six to eight times — sometimes by the front door and sometimes by the rear door, reached through an alley way in the rear. We will show you that, on one occasion, about two weeks before his death, they were seen walking together on Sixteenth street, in the rear of this house, when, owing to the mud, the walking was not fit for females— at least in that section of your city. We will show you that, on or about the sixteenth of February last, the deceased was spoken to on Fifteenth street, between L and M, while walk- ing with Mrs. Sickles, and that he was whirling a night-key in his hand at the time. That they were plainly intending to enter this house, and were watching for a chance to enter it unobserved. That they concealed themselves some time behind a house on the corner of Fifteenth street and M. That they were then followed to the corner of L street, through L to Sixteenth street, through Sixteenth street to K, through K to Fifteenth street, and then to M. That the walking was very muddy, and that the streets were crowded with persons looking at them; for, while they thought they were unobserved, they were the "observed of all observers." We will show you that on or about the twenty-third of February last, they were at the drug store together, corner of Vermont ave- nue and K street, and that they left there together, and disap- peared so as to leave no doubt that they entered the house in ques- tion. This was between three and five o'clock in the afternoon. We will show you that the shawl the deceased wore on that after- noon was found in this house, after his death, and identified. Whenever a question, appealing to similar feelings of morality, 11 1G2 MODERN JURY TRIALS. has been put to other juries, they have not sought to evade the responsibility of answering it. They were proud of the glory of being permitted to do so, and fearlessly and promptly have they given it a response. Less than the imitation of their example, on your part, would be a violation of your duty — do I go too far when I say, a disregard of your oaths ? Mercy is your attribute, as much as it is that of the Executive. It should temper all your deliberations. Lord Erskine relates, in his celebrated opening for the defense, on the trial of Hadfield: It was the case of a woman who was tried in Essex for the murder of a Mr. Errington. He had seduced her, lived with her, and then turned her off for another woman, whom he had married, or (as Erskine said), "taken her under his protection." She went deliberately to his house, and shot her wrong-doer. She was goaded to her act by a sense of injury; and, after her acquittal, she became absolutely insane. She was not insane when acquitted; and Lord Erskine rather mourned over her acquittal, taking place as it did, for it conflicted with his favorite idea of insanity from delusion, a view of which you have already had. He advocated the principle that real wrongs produced violent resentments; imaginary ones, insanity. The jury, in the case of this unfortunate woman, read from, and practised upon, the Book of Human Nature. They spurned all fine-drawn theories, looked to the impulses of the human heart, and held, that with such a pro- vocation as she had, desperation did not exhibit itself in a criminal form. This was the voice of an English jury. In the year' 1843, Singleton Mercer was tried in the State of New Jersey, on a charge of murder, in killing a young man who had forcibly deflowered his sister. He had been some forty hours under the influence of the feeling, which prompted him to take the life of the deceased. The deceased and a friend, in a close car- riage, got on board the ferry boat to cross from Philadelphia into the State of New Jersey. As the boat was just nearing the New Jersey shore, the friend of the deceased, who had left him alone in the carriage, hearing several pistol reports in its direction, went to the carriage to see what it meant. When he arrived there, he found the deceased in a dying state. Mercer was arrested on the boat; did not deny the deed, and manifested a perfect resignation to his fate. He was tried in a State which prides itself upon the severity of its justice, and yet an honest jury acquitted him of all criminality. In the year 1844, Amelia Norman was tried in the court of Gen- eral Sessions, at the city of New York, on a charge of assault and TRIAL OF DANIEL E. SICKLES. 16S battery with intent to kill. It appeared from the testimony, that she had been seduced by the prosecutor under circumstances of great cruelty; and that after serving him in the capacity of mis- tress, until he was sated with her charms, she was finally abandoned by him. She tried to persuade him to do something for her. Her health had been much impaired during her association with him, and she requested a little, to stand between her and want. He remained obdurate. She became frantic; furnished herself with a dirk knife, went to his hotel, in the great thoroughfare of our city, saw him in the broad daylight in the act of entering it, once more besought his aid, was repulsed by him, and, in her agony, stabbed him, and well nigh deprived him of his life. She was taken into custody on the spot. Her situation and her wrongs came to the knowledge of a distinguished authoress, whose sympathies were enlisted for her. This lady took her under her protection, minis- tered. to her during her imprisonment, and employed counsel to defend her. That counsel was my own brother, who now is among the dead. When he ascertained the circumstances of the case, he returned his fee, and refused to serve under any other employment than that growing out of his compassion for an injured woman. Her trial came around; it lasted several days, and resulted in her acquittal. So great was the public interest in her, that on the night the verdict was rendered, the court-house was besieged by thousands of our citizens, and when the result was announced, the welkin rang with the plaudits of an excited populace ! Gentlemen of the jury, how instructively do these cases come home to you. The rejected mistress — the contemned father — the disgraced brother — have been received into the merciful keeping of discerning juries. In matters of natural right, the intelligence of the whole world is in unison. What an English jury commenced, American juries have not refused to imitate or extend. Shall it stop with the records of the past? Or shall the husband, whose hopes have been broken, like the tender flowers (as it were) upon their stocks, be placed behind the same shield which has protected other defenders of our dearest rights ? Even in your own district has been planted the seed, of whose growth we seek to reap the harvest. The honor of initiating in this locality the doctrine of natural justice, under proper qualifications, has not been reserved for you. It has already taken root here. Tou can follow the example which has been set you. You can apply it to a new wrong. You can announce that a husband's feelings and a husband's hap- piness must not be made light of. My client, it is true, has not aimed at being a public champion; but his doom cannot be fixed 164 MODERN JURY TRIALS. without affecting, more or less, by the precedent you establish, the great moral interests of society. Will you or not give in your adherence to the examples which have been rehearsed to you ? You have your own immediate citi- zens, and the citizens of other States, where justice is not sold, and where it cannot be bought, putting the redemption of a juror's oath upon the principles which, in one aspect of it, constitute the pillar of this defence. Will you renounce your allegiance to those principles ? Will you refuse to yield yourselves to them'? Or will you rather follow in the wake of such precedents, and render that judgment which will accord with perfect justice, and, at the same time, be consistent with the adulterer's offense. Gentlemen of the jury, shall the abominable doctrine go forth from this court that pecuniary compensation is the only mode of stanching the bleeding wounds of a husband ? What is the effect of that doctrine ? It tells every man that if he will pay the price which a jury may set upon his seduction or his adultery, he cau enter any house he pleases and rifle it of its purest contents. Is that to be the doctrine of your'district ? Are we to have a mere list of rates, or a mere tariff of charges ? Is the lower house of infamy to fix one, and the higher house of infamy to fix another ? Shall an American jury say to the seducer or adulterer what he shall pay for his crimes. The very moment you act upon that prin- ciple you tell every libertine he may enter any house in your dis- trict, if he is only ready to foot the bill which shall be presented by an American jury, and stand clear of all human or divine accountability. In God's name repudiate that principle from your verdict. You sit, where it is your inestimable privilege to sit, under the immediate protection of that fire which burns upon the great Altar at which all the other torches of our government are lighted. You are here, at the seat of our Federal Government. You are overshadowed by the illustrious name of Washington. Let its recollection inspire you with fitting and becoming thoughts — and be reluctant — be loath to incorporate into your verdict a principle which — if it is the one upon which you act — will have a more demoralizing public effect than any other that could be sustained by an intelligent jury ! Acquitted, amid immense applause. TRIAL BY JURY. 165 TEIAL BY JUEY. Address at Michigan Law University, Ann Arbor, March, 1875. By Hon. CHAS. S. MAY. The frequent demands of the press for a change or abolition of the jury system, and the unfounded attacks on " ignorant " juries) may be better comprehended after a half -hour's study of the ques- tion. The elaborate remarks of Chief Justice Ryan, in another chapter, and the exhaustive review of the subject herewith given, are alike instructive and furnish excellent reading. We have a right to look for something more than common authority in an address to law students. The high character of both orators on this subject, their eminence and learning, entitle their researches to a most careful consideration. The aim of a lawyer is to get wis- dom. The foundation of oratory is wisdom. Here, then, is a clear fountain from which to draw condensed information on trials by jury. Mr. Mat said: I shall use the hour which custom gives me on this occasion in speaking to you of one of the great institutions of English justice and the common law; an institution of high concern to the State and all its citizens; of supreme and practical interest to every law- yer — " The trial by jury." It is a theme of most ample dimensions, and I shall not undei'- take to give all its history or all its learning. In the limits of«such an address as this, I shall only take a few views of the subject, and these chiefly of a practical character. About to enter, as these young men are, upon the practice of the law, I can think of no topic more fruitful in suggestions to me, or likely to be of more interest and profit to them. ORIGIN AND HISTOEY OF TEIAL BY JUEY. The trial by jury is Anglo-Saxon in its origin; a part of Anglo- Saxon jurisprudence. Greece did not know it, nor Rome. The Grecian dicasts, the Roman judices, the Saxon compurgators — these may have suggested and helped to form it, but each essen- tially differed from it as we know it to-day. For the institution in its present form we go back in English history to the reign of Henry II., that same sagacious, far-seeing and intrepid monarch 166 MODERN JURY TRIALS. who waged such stout and unyielding battle with his powerful and ungrateful subject, Thomas a Becket, for the supremacy of the civil over the ecclesiastical power. In the long line of English sov- ereigns, none has done a greater service to his countrymen and his race than this statesman king, who put the church below the state and incorporated into English jui-isprudence the trial by jury in the place of the senseless and barbarous trials by duel and by wager of battle. Since the Grand Assize of 1176, a period of almost seven hun- dred years, trial by jury has been one of the sacred muniments of English liberty. While it was yet in its infancy the sturdy barons at Runnymede took care to make it a part of the Great Charter which they wrung from the faithless and treacherous John, the undu- tif ul and degenerate son of its immoral founder. And since Magna Charta, in every struggle of the British people against the encroach- ments of the crown, in every popular upheaval or revolution — in every advance towards a larger and broader liberty, the recognition and maintenance of this institution has ever been stoutly insisted upon, so that to-day it would be easier to uproot the foundation of the British throne itself than to tear this venerated landmark from the British constitution or the affections of the British people. The revolution which dissolved our political allegiance to the Brit- ish crown did not deprive us of our inheritance of English liberty, and so trial by jury descended to us on the broad stream of the common law. We share it now with every English speaking peo- ple. It is not only held in traditional, popular reverence, but it is solemnly incorporated as an inviolable right into the constitution of the United States, as well as the constitution of most of the States of the Union. WHAT IT IS ITS MISSION TO FIND THE FACTS. What, then, is this trial by jury which is thus highly prized and sacredly preserved by the foremost race and the two leading nations of the world? It is an answer to this question, in general and pop- ular terms to say that it is an institution of English and American jurisprudence designed to assist in arriving at the truth in private disputes in relation to property and personal rights, and in cases between the State and the individual for the violation of public law. But it can only approximate to this end. Every form of trial known to the law is but an approximation to, a struggle and endeavor after, the truth and justice of the case. Only 'with God and in the realm of exact science, working through fixed laws, can absolute and certain truth be reached. For the rest, and in all i •- TRIAL BY JURY. 107 the vast domain of moral and legal truth we must feel after and attain to that which is true and just by such aids and lights as God has given us in the reason and conscience of men. In our administration of justice it is the province of a jury, a trial jury, of which I am speaking, to find the facts. This is a clear and single process, and measures their duty and responsibility. But evei'y case, of course, involves more than the facts. The law of the case is involved also — that which gives to the facts all their signifi- . cance and consequence as a basis for the claim of plaintiff or defend- ant. The questions of law may be many or few, but for these the jury have no responsibility. They are to take the law as given by the court, nor are they to ask any questions as to its abstract moral justice, but simply to find their verdict under it. So it will be seen that the work of a jury, though of controlling importance in a trial, is not the whole of a trial, but rather an incident of it. The entire work to be done, the full problem to be solved, is one of a dual nature, of mingled law and fact, and a trial by jury in a court of law is a carefully adjusted piece of judicial mechanism, wheel within wheel, the most perfect and the most complete which human wisdom can devise. THE JURY SYSTEM DEFENDED JURY BETTER THAN JUDGE EVEN IN CIVIL CAUSES. Does it need that I should defend at this late day, an institu- tion thus venerable in years and hallowed by popular affection ? Certainly it would seem that I ought not to be called upon to do this, and I shall not, at any great length; but I do not forget that the men of this generation, wiser as they unquestionably are in many things than their fathers before them, have begun to' question institutions which have stood for ages, and that the jury system has not escaped attack. To some restless innovators the mere fact that it is old is an argument against it. But every considerate and thoughtful man will, I think, hesitate before condemning an insti- tution which has been in continued daily operation for more than twenty generations of men; which has become intertwined with the history and traditions of his country and his race, and whose germs are found away back in the earliest civilizations. Progress, reform, judicial reform — these are good and admirable things, but. we should take care to know what we do in their name. John Ran- dolph once said, in Congress, that "change is not reform." and adding to his words, I may say, with still greater truth, that destruction is not reform. To abolish the trial by jury, to sweep out of use and out of existence with one blow the jury system, 168 MODERN JURY TRIALS. would be a terribly destructive and radical measure, a direct impeachment of the wisdom of the past and a bold and hazardous experiment upon the future. Happily, there is no great danger that this will ever be done. For the jury system finds its justification in the facts of human nature, which is essentially the same in all ages; in its practical utility and convenience, and in its close and inseparable relations to civil liberty. I say, in its practical utility, and here I touch what is regarded as the chief and strongest point made against it. Many who would retain it in criminal cases and for its possible service in some great public crisis, nevertheless oppose it in civil causes and in the common every day business of the courts. While agreeing with them fully in the reservations which they make in the greater things, I also believe that it is good and useful in the smaller things as well; in civil as well as criminal cases, in ordinary as well as extraordinary times. First, I believe that a jury is always the best and fittest tribunal to find the facts of a case. I hold this to be true in the very nature of things. I know the argument that is used upon this point, and what is said about unlettered juries, about difficult mental pro- cesses, and about the trained and disciplined mind of the judge. But here I believe is the better test. The facts to be found in a trial in the courts are generally the facts of common life. The deductions and conclusions to be drawn from these facts, in nine cases out of ten, are the deductions and conclusions of ordinary human experience. These do not so much require learning and logic as practical common sense, knowledge of human nature as seen in men and not in books, and intuitive perception of right and wrong — qualities oftener found combined, I think, in the jury box than upon the bench. It will not do to say, that because the judge is generally the superior in natural endowments of the average juror and ordinarily is his better in mental training and acquirement, that, therefore, he will the more surely and certainly draw from a mass of tangled facts the right and justice of the case. For facts cannot be dealt with like principles or arbitrary scientific rules, and right and jus- tice are not always to be arrived at like mathematical results. Often the very learning and discipline of the judge may have unfitted him for this work by educating him away from the people. And it should not be forgotten in this connection that usually the facts in a case are narrated by living witnesses in court, whose look and manner and the probability of whose story should be scanned and weighed by men practiced in the ways of human TEIAL BY JURY. 1G9 nature, and not easily to be imposed upon. But grant, if you please, that there is no advantage in these respects with the jury on the grounds which I have claimed; is there nothing still in the fact that the verdict of a jury is the aggregate wisdom of twelve men, while the finding of a judge is but the wisdom of one man ? Do the scriptures say untruly, then, and is there no safety in a mul- titude of counsel ? Again, it may well be urged as an argument for a trial by jury in civil cases that the judge has already enough to do, to preside in his court, to dispose of routine and ex parte business, and to decide all questions of law which may arise upon a trial, including his final instructions or charge, without being burdened with the finding of the facts also. There is reason enough, certainly, why he should, if possible, be relieved of this. We should not ask too much of one man, when we can have the work of many. Besides the find- ing of the facts and the application of the rules of the law to these facts are two entirely separate and dissimilar processes which do not help each other. They should therefore be given to separate hands to do. If I am right in these things, then the jury system is justified on the score of convenience and utility, even in ordinary civil dis- putes, and the objection of costs and expense is of too trivial a nature to be weighed against such solid public advantages. The State and the people can always afford to pay for that which will aid the cause of justice in any degree, and nothing can possibly be so expen- sive and costly to them as the denial of a full and fair trial to any suitor in court. BUT CHIEF IMPORTANCE AND GLOBY OF TEIAL BY JURY IN CRIMINAL CASES AND AS AN ALLY AND BULWARK OF CIVIL LIBERTY. But it is in another and greater field that the trial by jury becomes a matter of supreme concern to the citizen, and rises to the dignity of one of the chief props and bulwarks of civil liberty. Here its use cannot well be questioned. Here, certainly, it needs no defense. The leaning of the law, in criminal causes, should be to the side of protection and humanity. And so it is declared to be. The State is great and powerful, and overshadows the individual; and though it be necessary for its good that crime be prevented and punished, yet the State is not greatly harmed by the escape of a guilty man. But the conviction, and punishment by death or lingering imprison- ment of an innocent man is a thing unspeakably shocking. No care can be too great to prevent such a tragedy. "Better," then, says the humane maxim, " that ninety-nine guilty men should escape 170 MODERN JURY TRIALS. rather than one innocent man should suffer." And all our human hearts and sympathies respond amen to this. So the law of England and America — the common law — has built up for ages its impregnable wall of protection around the citizen. It has covered the accused with the shield of all its presumptions in favor of innocence, and tenderly, humanely giving him the ben- efit of every reasonable doubt. And to make sure that he shall have no injustice done him, it has given him the sacred right of a trial by a jury of his peers, where only a unanimous verdict of twelve men shall take from him his good name, his liberty or his life. Not to any single man, however honest or wise, however trained or learned, will the law give over such supreme and terrible functions. Is not this wise as well as humane ? Would it be well to change this rule and put such tremendous issues into the hands of a single judge and make him pass upon the law and the fact also, of guilt ? I think nobody will thus contend. Whatever may be thought about the wisdom or policy of jury trials in ordinary civil disputes, every lawyer and every right thinking man will wish the jury system retained in criminal causes. And there is another reason still, even graver and deeper than any I have yet named, why the trial by jury should never be aban- doned. Not alone is it a protection and a shield to the individual citizen, but it is also a chief pillar of support to that great civil fabric in which are bound up the rights and liberty of every citizen of this country and of England. The right of a trial by jury, a great popular right, a right belonging to the whole people, is needed in the State to guard against tyranny and oppression by the gov- ernment. In the mother country, this right expressly named in Magna Charta, of a trial by a jury of his peers, has been to many a noble English patriot the open door of escape from the blood- thirsty minions of a tyrannical king. Here we have no favored classes; we are all peers, each of the other, but we all belong to the people, and a jury is pre-eminently a tribunal of the people. Thus, as a fortress and citadel of liberty in which the citizen may take refuge in calamitous times of public commotion or danger, when the safe ways of the State are broken up, and the hand of power is outstretched to bloody and violent deeds of oppression, the trial by jury is worth all that it cost in the long struggle' in English history to secure and maintain it. And this great reason of State must therefore be added to all the other solid and weighty considerations which uphold the jury system. TRIAL BY JURY 171 THE WORKING OF THE SYSTEM ITS DIFFERENT PARTS. How does this institution, so important to the citizen and the State, and so intimately connected with the administration of the law, meet the ends for which it was designed, and what is needed for its true and harmonious working ? Let me glance now at the trial by jury as we know it to-day, in this country, with its usual appointments and surroundings. I want to analyze some of its leading elements, and to speak of some of the duties which it imposes upon its chief actors. For the trial by jury means more than the jury, merely, and its duties. There, besides the jury, is the judge who presides; there are the parties, the contending rei of the suit and their witnesses; and there, finally, to complete the scene, are the advocates for the respective sides. Each of these parties is indispensable to a trial, to say nothing of sheriff and clerk, and other officers and appendages belonging to a court. Each is a portion of the whole, and all must move together to reach a judicial result. Here is the law's mechanism; the wheels and cogs which perform their distinct and separate offices. But this is no inanimate machine which is now set in motion; no material contrivance of human ingenuity, working with wood or stone or iron, and for a material purpose. It is rather the delicate and profound adjustment of the subtle and imponderable forces of the human mind and soul; the perception, the reason, the judgment, the conscience — all called into action, and all com- bined in the effort to reach those two grand moral ends — truth and justice. All this gives dignity and seriousness to such a proceed- ing. So, also, is there something essentially picturesque and dra- matic in every trial by jury. It is always a living panorama of human life and experience, which is enrolled in a trial in a court of justice; sometimes grotesque and ludicrous as any comedy; some- times deep and awful as any tragedy. THE ACTORS IN A TRIAL THE JUDGE. Only a hurried glance can I give to the actors upon this stage. First, there is the judge, who presides, and declares the law. His part is a great one, and for him we have all inherited a traditional reverence. At the name of his title, there rises before our minds, from the awful mists and shadows of the common law and its his- tory, the august form of the ideal judge, sitting with stately dig- nity upon the judgment seat, holding with even and steady hand the great balances of justice and equity; with the law's majesty upon his brow, and the law's terrors in his eye, and robed in spot- 172 MODERN JURY TRIALS less ermine, type and emblem of the -whiteness of his character and his judgments. Alas, that this great presence should so shrink and vanish away when we look upon some of our living judges! But let us not expect too much of our judges — especially while we pay some of them so little — for they are but men like the rest of us. I do not speak here, of course, of our law judges proper — our judges of courts of last resort — but only of nisi prius or trial judges. The chief qualifications and duty of a judge, who presides at a jury trial, can be easily and briefly stated. First of all, of course, a judge should be honest. Without this jewel in his crown all the rest is worthless. Nothing can make up for this. It is bad enough to be a dishonest man or lawyer, but a dishonest judge is an abom- ination to men and a grief to the angels. He poisons a clear foun- tain from which all the people must drink. Let him ever be held in utter abhorrence, whatever his abilities; even if he be great and wise as Bacon. Next, a judge should be impartial. The law is equal, the law is no respecter of persons; and a judge is but a min- ister and servant of the law. His duty, then, in this respect is plain. Then, a judge should have dignity. I do not mean that opaque and owlish dignity which is simply ponderous; but that which is lighted and lifted up by grace and intelligence ; the easy presence and the cultivated manners, combined with the high sense of personal honor and the lofty judicial purpose; all making a judge who adorns as well as honors the bench. Such a judge I saw ten years ago, sitting in a case of murder, in one of the courts of the city of New York, and whenever I see that man's name, as I frequently do, for he has since filled a high executive office, and become a distinguished leader of his party, and one of the public men of the country, I recall him as I saw him then, presiding with that blended gentleness and firmness, and with a grace and finish of judicial manners which I shall never forget. And a judge should have dignity and weight of character as well as dignity of presence and manners; for when he takes his seat upon the bench, men's eyes will see the man who is behind the judge. For myself, I esteem this one of the most necessary and desirable qualities for a judge; and It is one that I think is too much overlooked in these later times, in our selection of judges. This may be partly owing to the vicious method of choosing our judges by the caucus; but it is certain that there has been a great decline in this respect, in many quarters, and that there is danger that the bench may lose that traditional respect and reverence with which it has always been regarded by the^ people. The great TRIAL BY JURY. 173 judges have nearly always been men of high personal character. We venerate the names of Hale, of Mansfield, and of Marshall, not more for the broad, clear intellect and the deep learning, than for the lofty dignity of character, the high moral purpose, and the penetrating intuition of justice, which like unfailing springs flowed out into the clear pages of their illustrious lives. Turning now to the intellectual furnishing of a judge, it is easy to see what we want — far easier than to find what we want. First of all, a judge at nisi prius should have a clear, head and a decisive will. He should apprehend readily and decide promptly. There should be no confusion or irresolution. A jury trial, with every- body waiting, is no place for a judge to doubt, and read law and ponder. It is of first importance that he decide all questions at once, so that the trial may proceed, and, if he makes mistakes they may be corrected by a court which can take all the time it wishes. Next, and as a most important qualification, a trial judge should be a man of broad common sense, a man who understands human nature at first hand, on the witness stand, in the jury box and in the bar. If, to these qualities he can add broad and deep learning in the law, it is well, and this will fill out the perfect picture and model of a great judge. But I put this qualification last in the order, for the reason that it can better be dispensed with than any of the others. Learning alone will not make a judge; nor even learning joined to high personal character. Something more is needed. The native hue of resolution must not be sicklied o'er with the pale cast of thought. He must be a man of action, with faculties all alive and alert, a man of honest heart and sound head, and firm will, and knowledge of every-day human nature, who successfully presides over the always arduous, and sometimes stormy and exciting scenes of a trial by jury. The greatest judges are born judges, having, like the true orators and poets, the royal commission of nature, impressed with the seal of God himself, to attest their right to discharge the high duties of the bench. THE PART OF THE JURY WANT 01" RESPONSIBILITY IN JURORS. I shall say but a word of the part the jury plays in the trial, and that only in regard to the character and duty of its individual members. I have already spoken of it in its collective form and as an institution of the law. The theory of the trial by jury is — and this is held to be its chief excellence by one of its ablest eulogists — that the jury is a tribunal suddenly called from the body of the people to try the facts of a case, and that after discharging that 174 MODERN JURY TRIALS. duty, it as suddenly dissolves and returns to the people again. It is a tribunal, therefore, which offers little time or opportunity for tampering or corruption, before it begins its work, and when that work is done it disappears so suddenly and completely that nobody can hold it to account. I know it is the policy of the law to pro- tect the jury from any civil or criminal responsibility for its ver- dict; and this exemption from account has given it a freedom and independence most necessary to its highest usefulness. This, indeed, is a great merit in the jury system, but it gives rise, at the same time, to one serious, practical defect, which every lawyer has had occasion to notice. I refer to the want of individual responsi- bility in juries. It is easy to see how this comes. Each juror is put into the box ignorant of the case which he is to try, and this very ignorance the law encourages, as a test of his impartiality. He looks about him and sees eleven other men, each one as ignorant of the case as himself, and each with a responsibility as great as his own. He has nothing to do but listen; he is not called on to say anything; he is charged to refrain from declaring his impres- sions to his fellows, even; and when all is done, and the case is submitted, he casts a silent, unrecognized ballot with the rest. Even should discussion arise in the jury room, and he be called on there to express his opinion, the law will seal the lips of all who hoar him, so that what he says and how he votes may never be known to the outside world. Under these circumstances it is natural that an indolent or timid juror should fail to give the case an earnest, thoughtful and conscientious attention; that he should sink his individuality in the mass, and hide his own responsibility behind the eleven. It is for this reason that the law and public duty alike require of every individual juror the full and independent exercise of his own judgment and conscience in every case. I think it would be well if this duty could be emphasized from the bench. The verdict of a jury should stand for the aggregate judgment, intelligence and conscience of twelve men. Of course, under our system, and with the exceptions allowed, it cannot represent the highest intelligence. But with some exceptions, chiefly in the large cities, and growing out of improper and corrupt selections by ignorant or dishonest officers, our American juries are supposed to represent, and do gen- erally, I think, represent the average intelligence of our great middle class. Every man who submits his case to a jury has a right to such a verdict as I have described. That he does not always get such a verdict, we know, and frequently have occasion to lament. It is because our jurors do not feel their personal TRIAL BY JURY. 175 responsibility and do their personal duty in a case where they sit, but evade this duty and responsibility in the mass, each hiding behind the other eleven. It is for this reason that I confess to having always had a meas- ure of sympathy for that much abused and denounced individual, the disagreeing or minority juror. I cannot always bring myself to join in the chorus of denunciation, which is set up over this poor Ishmaelite of the courts. Why should he always be thus assailed ? Does it necessarily follow that the other eleven are right, and he is in the wrong? Besides, is there no question of conscience here? It may be a case involving directly a great question of right and wrong; one whose decision is to be followed with consequences which do not simply take away money or property, but blast char- acter, deprive of liberty, or take human life. On such a question is he to follow other men's judgments and take other men's con- sciences ? He has taken a solemn oath for himself to find a true verdict; what shall we do with that ? If he thinks the crime not proved, shall he consent to send an innocent man to the dungeon or scaffold on other men's judgments and oaths? Here is a difficulty which all must see. I know it is frequently aggravating, in small cases on the civil side, and especially on ques- tions of mere damages, to have verdicts prevented, and parties and the public put to expense for the mere obstinacy of a single juror. But while this is so, who shall say that in the larger and graver cases which I have supposed, it is not the juror's duty to stand firmly to what he thinks is right, notwithstanding his fellows are of another opinion ? Must he not justify himself to his own con- science ? Can we denounce him in such a case, and join in accla- mations over men, who in science, in government and religion, have stood out stubbornly to the end against greater odds — not one to eleven, but one to eleven hundred or eleven thousand and more — and who have been exalted to the very heights of honor and fame, and pronounced immortal heroes for the act ? Let us not be unjust or inconsistent. The disagreeing juror, by the very fact of his disagreement, shows that he has a mind of his own, and that is a good deal. Commend me always to a man who has a mind of his own and thinks for himself. It is better to think wrong some- times than not to think at all. In this world of unthinking agree- ment and conformity, where so many men seem to have no minds of their own, and only wait to see what others think, I cannot help admiring the sturdy Anglo-Saxon independence of the one juror, who stands out against all the rest. It is really refreshing once in a while, to find a man who will sit up all night, without meat 176 MODERN JURY TRIALS. or drink, for his opinion — and keep eleven other men up with him! There is no sanctity about the verdict of a jury. It may be wrong and false like the greater verdicts of a sect, a party, or a nation. Who does not know that whole nations and peoples have some- times, yes, frequently, been in the wrong, and rendered false ver- dicts, and cruel verdicts, which have been set aside in the great court of history. The brave minority, which opposed those ver- dicts, even unto death, have earned the gratitude and received the plaudits of mankind. THE JURY ADVOCATE HIS NECESSITY. I come now to a most important feature in the trial by jury; one not only most essential to it, but of peculiar interest to those whom I address. I am to speak now of the advocate, his necessity, his qualifications and his duty. Here, too, while I have much to say, I must necessarily be brief. The great subject opens out before me in many inviting ways, but I must not follow them too far, lest my hour shall close upon an imperfect and incomplete picture of what I wish to present. Only a word shall I say of the necessity for the advocate in the trial by jury. I am not here to combat or argue with that igno- rant and vulgar misapprehension of the law's justice, which would abolish lawyers and advocates. Widespread as this prejudice sometimes seems to be, it is so utterly destitute of reason, and so plainly gives way before the least reflection, that it never takes any tangible form or shape, but lives only on men's tongues, as a thoughtless and flippant accusation against the bar. It has no solid influence in society or the State. Every man who reflects a moment, will see that an advocate is indispensable to a trial by jury; just as indispensable as the judge, or the jury itself. Anglo- Saxon justice, the justice of the English law, does not condemn a man unheard. It gives him the fullest and fairest opportunity for defense. It will hear what the State or his adversary says against him, and then he will hear what he has to say on the other side.' In short, it hears both before it decides. The trial is in a court of law, and it is the law which governs and controls in every case. But the law is a great and abstruse science, and only those who make its study a life work, can understand and administer it. The great body of the people, of course, cannot know or master this science. Hence the necessity for a class of men, trained and edu- cated in the law, whose duty and business it shall be to stand in the courts and assist in the application of its rules and principles to the thousand varying cases of fact, which arise in the clashing of TRIAL BY JURY. 177 men's interests, rights and passions, in the daily march and whirl of the world's affairs. And so in all ages and in all nations, where there has been any approach to civilization, the lawyer has been found. Greece and Rome had him, though they did not have the trial by jury; and indeed, he has flourished in past ages, and flourishes to-day in every country on the globe, where any form of trial is known, so indis- pensable is he to the very idea of a trial. He is ordained in the justice and humanity of the law to represent and plead for those who cannot, in the very nature of the case, properly or effectively conduct their own cause in the court. THE QUALIFICATIONS OF THE ADVOCATE. What are the qualifications needed in the advocate or jury law- yer ? I speak here especially of natural qualifications, and those which are acquired in the study and practice of the art of -advo- cacy, rather than of the preliminary and general learning in the law required by the profession. For the jury lawyer, especially, is not made by this general training. He is more a product of nature than of the schools. I do not, by any means, wish to dis- parage learning at the bar, but learning alone will not make good advocates, else they would be more common in the courts. They are not common; they are rare; and the great advocates are at wide distances apart — two or three at a time, perhaps, in England, or America; a half dozen in a century. Statesmen and great divines, and warriors even, are more common. In their scarcity, and possibly in some other respects, the great advocates more resemble the great actors, who hold the mimic stage, as they so often do the real. This is because there is a genius of advocacy, as there is a genius of acting and a genius of poetry. Talent and application will make a great statesman like Palmerston, and sometimes a great soldier like Wellington, but only genius, which is far more rare, will make a great advocate like Erskine or Choate. In the same way, the great poets are born, not made. They do not plod, and study, and make poetry at so many hours to the day, as business men work in their stores and offices, but they mount up to the heavens of imagination when the divine inspiration comes upon them. We cannot imagine Shakespeare writing Lear and Macbeth at regular days' works or Byron dashing off his sublime apostrophe to the ocean, or his magnificent description of the mountain storm of Jura, as an allotted task before he should go to his dinner. It was the genius of poetry which took possession of these men and 12 178 MODERN JURY TRIALS. transfigured their faces and lifted them up into the mountain of song, where they took little note of time, or hunger, or worldly things, until the lofty strain was finished. So Curran stood before an Irish jury, the very impersonation of the genius of advocacy, as, with flashing eye and quivering lips, he thrilled or melted them with thoughts of country or memories of home. No labor of pre- paration could produce such results; it was the flaming out of pure genius, the most unalloyed and perfect in his case, and in this respect, which has ever appeared at the bar. But I do not forget that there must be advocates who have not this divine gift, and I would by no means be understood to under- value learning and preparation in the advocate. To a certain extent, at least, these are indispensable. What I meant to say was, simply, that greatness in this calling must depend on the original endowment of nature; that a great advocate cannot be made by application, however severe; by learning, however profound. I know it is the fashion with us here, in this country, where we have no separate orders at the bar, to attempt all things in the profes- sion and to wander indiscriminately into all its fields. The same man does the work of a scrivener or conveyancer, gives law advice in his office like a chambers counsel, is a practitioner in chancery, a draughtsman, an attorney in the inception and preparation of his cases for trial, and finally the advocate before the jury. Every fair lawyer is supposed to be capable of all these things, and almost every lawyer attempts them all. Now, I think we cover too much ground here, and that this promiscuous employment tends to repress and destroy especial excellence in the profession. In the large cities, it is true, this state of things is somewhat modified, because there men can find enough to do in certain branches of the profession, for which they may be particularly adapted; but it is not so in the country, where the lawyer is expected to do every- thing, from the drawing of a deed or simple contract, to the con- ducting of a trial for murder. In a new country like ours, and with the practical difficulties in the way, it may not be possible for us, but I believe the English system is the best. The highest excellence at the bar cannot be attained, where the practitioner does a little of this and a little of that, and never enough in any one line to bring out all his powers. And the work of the jury lawyer is one that especially requires, besides natural adaptation, every day practice and experience. Besides there is something absurd and almost grotesque in its unfitness in a lawyer, whose voice ought never to be heard outside an English court of chancery, standing up before a jury, dry, unsympathetic, passionless, desti- TRIAL BY JURY 179 tute of every attribute of an orator, to plead for a man's liberty, or his life. I hold eloquence to be almost a sine qua non in advocacy. The true jury lawyer ought to be an eloquent man. I do not mean necessarily that he should be a great orator; but he ought to have some of the attributes of eloquence. He ought to be a man of quick sympathy, of impressible and electric temperament; a man to catch the inspiration of a cause and throw his feelings along with his logic into the jury box. Here, I think, is the true secret of the great advocates. It consists in that personal magnetism, that indescribable charm and sympathy of voice and manner which gives them control over the feelings of a jury, and when that is obtained the rest is comparatively easy. With this main qualifica- tion, which is largely a question of temperament, the advocate should have a quick perception, good judgment, self-control, know- ledge of human nature, and the power to handle facts. This mas- tery of the logic of facts is indeed one of the chief qualifications c-f the good advocate. It is what he needs to analyze and detect the weak points of his adversary's case and to arrange and mass his own evidence with the most effective and telling power upon the jury. Put this with that electric and sympathetic eloquence which I have described, and you have a vast power to .let loose upon the jury in the final argument ; a power which perhaps too frequently sweeps them in its resistless might from the safe conclusions of reason, and sometimes, indeed, from the solid foundations of justice. ADVOCACY AND STATESMANSHIP COMPAEED. In this brief outline of some of the leading qualifications of the jury advocate I have indicated an order of ability which is neces- sarily rare. But though rare, I do not consider it of the first order. In its intellectual part it is keen and quick, rather than deep and profound, in its moral aspect it partakes of that which lies upon the surface of human nature rather than that which goes down to the deeper things of the soul. It imparts and reflects the sympathy of the time or the occasion, instead of being always true to fixed and unchangeable moral principles. So I think it takes a higher order til ability, to make a great philosopher or a great statesman than it does to make a great advocate. True, the themes of advocacy and statesmanship are very different. The advocate deals with princi- ples in the concrete; the statesman in the abstract. The advocate labors in the courts for the rights or interests of individual men in concerns which are brought directly home to them with intense and 180 MODERN JURY TRIALS. practical power. The statesman in the Parliament, or the Congress, deals with principles and generalizations which affect men in classes, or nations, and have to do with the welfare and prosperity of states and empires. Thus, the statesman's work is necessarily the higher and more important, and I think it requires the higher ability. This, I take it, would be the verdict of history. There have been some men who have divided almost equally the honors of statesmanship and the bar. Such were Brougham and Lynclhurst, in England; such, largely, our own Webster. But generally the two spheres have been separated, and I may say that, with respect to the especial depart- ment of jury advocacy, they have always been separated. No really great advocate has been at the same time a great statesman. This may seem a hazardous statement, but I think it is true. Daniel Webster was a great man before a jury, as he was certainly in the Senate. But he lacked a great many things to make him such an advocate as Ruf us Choate, or even Ogden Hoffman. He was too slow, too ponderous, too unwieldy. There was not room enough for him in a trial before a jury. A man like Webster could not bring his vast intellectual armament to bear in such a trial. It does not require a whole army, with its artillery, infantry and cavalry, to capture an isolated point or break through a single place in the enemy's line. A division, or sometimes a brigade, or even a regi- ment, which can be handled quickly, is better for this purpose. And so, while Webster made a few jury arguments that were mas- terpieces, still he cannot be regarded as beginning to equal, in his forensic efforts, the splendor of his senatorial eloquence where the themes were greater and grander. And Webster comes as near uniting the two characters as any other name I can think of in our annals. Remember, I am speaking here of jury lawyers. As great constitutional lawyers, to expound and advocate great constitu- tional questions and the deep underlying principles of the law, which are allied to statesmanship, Webster and Pinckney and some other of our statesmen have greatly shone and stood in the front rank. But Erskine, and Choate, and Hoffman, and other advocates of scarcely less note, men who have ruled and swayed before the jury, have so lamentably failed in statesmanship that they fully prove my point. THE DUTY OF THE ADVOCATE — THE OLD QUESTION OP THE ETHICS OE THE PROFESSION". What shall I say of the duty of the advocate ? Surely I come here upon delicate and difficult ground; for I cannot, with my views TRIAL BY JURY. 181 of the subject, content myself with the general and sweeping answer that the advocate is to stand in the place of his client and do everything and anything in his name. True, he represents his client, and speaks for him in the courts, and this is well and neces- sary and wisely ordained in the fairness and justice of the law. But how may he represent his client ? What may he speak for him ? These are the questions that give us the difficulty. It is the old difficulty which has troubled the minds of some men ever since the days of Cicero and Quintilian, and even before; the difficulty which Dr. Johnson and the poet Southey have discussed on either side; settled now, perhaps, satisfactorily to the minds of a majority of lawyers and to most moralists, but to some not yet wholly removed. Possibly, nay undoubtedly, the question is aggravated by the almost universal fashion and practice of the bar. The theory of advocacy is one thing; the every day practice of it is often quite another thing. And yet, as a matter of theory, there have always been those inside of the profession who have maintained a doctrine on this subject which, to my mind, is offensive to good morals and especially degrading to advocacy. It is the doctrine advanced by so great a man as Lord Brougham, and practically and conspicuously illustrated by so great an advocate as Ruf us Choate — the doctrine of the complete and utter identification of the lawyer with his client. An over partial biographer of our great American advocate, him- self a lawyer, writing with all the ardent zeal of private friendship, and unbounded admiration for his subject, has recorded of him that "his client was his God;" that "his client's interest was his relig- ion;" that "he never inquired whether his client was right or wrong, but he went for victory to the last beat of the pulse and the last roll of the drum." Perhaps this is as offensive a statement of this doctrine as we can find anywhere, connected, as it is in this instance, with the debasement of almost superhuman and angelic powers, but it is elsewhere enlarged and elaborated by Dr. Johnson and other writers into a system of plausible and fallacious refine- ments of judicial casuistry and Jesuitism. I cannot descend here to details, but I must protest with all my might against this specious but demoralizing view of the duty of the advocate. I contend for a higher, broader, nobler rule. I know that so great an authority as Cicero has said that the first duty of the advocate, is to assist him who most needs assistance; but with all deference to a name so illustrious, I hold that a better rule would be to assist him who most deserves assistance. The theory of a trial by jury is not to clear guilty men who are in 182 MODERN JURY TRIALS. trouble. It is rather to afford an opportunity for the conviction of guilty men and the vindication of innocent men unjustly charged with crime. When guilt is known or confessed there is no need of a trial in the real and full meaning of the term. After that there remains but the just order and the decent formality of the law. A trial is an inquiry, an endeavor after the truth or fact of guilt or innocence. If the client be guilty, then he does not need, in the contemplation of the law, the assistance of the advocate, for the fact of his guilt is the end of all inquiry on the subject, and the end of all interest which the law takes in his behalf. For the rest, it will only demand that the fact of guilt be judicially ascertained, and in assisting to do this the advocate serves the law rather than the criminal. But here comes the casuists and say: How can it be known that he is guilty until he is proved so ? It cannot be judicially, technically known, it is true, but it can be known to the advocate in the broader way and in a moral and popular sense just as other facts are known. It may be known from the client himself; it may be known from overwhelming moral evidence surrounding the case. This is the state of facts I am supposing, and this is the reason why I say that it is not what the client needs to enable him to escape a just penalty which he has incurred, but what he deserves as a man whose guilt is still in doubt, at least, which should command the zeal and the service of the advocate. I grant that the lawyer should not prejudge his client's cause; that he should presume everything, indeed, in his favor. But after all that is done it will frequently happen that the advocate will be compelled to believe his client guilty. It is specious nonsense to say that we can never know that a man is guilty till a verdict of a jury has pronounced him so. We can be satisfied of it sometimes just as well before as after the verdict. We may know it through the same facts which compel the verdict; we may know it better still by the private confession of the accused. Shall the lawyer, under these circum- stances, exert himself to the uttermost, using superior powers and skill to obtain a verdict of acquittal for his client, the same as though he knew him to be innocent ? Is that a just and proper rule ? Is that the true idea of the ethics of advocacy ? I protest against such a doctrine as a wrong to society and a slander upon the law. I insist that the first duty of the lawyer is to society and the law, and that his duty to his client is always subordinate to this higher duty. All this is involved in his law- yer's oath. He is first of all sworn to uphold the constitution of the State. Upon this rests the whole civil fabric of society. Next TRIAL BY JURY. 183 he is to be true to the court. The court represents and stands for the sanctity and majesty of the law itself. It is the interpreter and vindicator of the law. Last he is to be true to his client. But he cannot be true to his client in any just sense while he is false to society and the law. That is not the kind of truth he is to keep with his client. His oath pre-supposes no conflict between his client's interest and the interests of the State. He is not sworn, therefore, to help a guilty man whom he knows to be guilty, to escape at the expense of law and justice. If he does this he becomes an enemy to society and a conspirator against the law; for society cannot be held together without the punishment of the guilty, and the law is powerless and dishonored if it cannot enforce justice. Away, then, with the specious plea, the dangerous fallacy, that the highest duty of the lawyer is to stand between his client and the State and protect him always, right or wrong. No doc- trine, in my judgment, could be more disloyal to the State, or degrading to the profession. Too much, far too much is this doc- trine acted upon at the bar. The indiscriminate and over zealous defense of criminals without thought or care as to their guilt; the unreasonable theories; the unscrupulous tactics; the brow-beating of witnesses; the reckless assertions and the bold affectations of truth and innocence — these are the things which have brought criminal advocacy into disrepute with the people; which have kept so many able, self-respecting lawyers from this department of practice, and made the very term, criminal lawyer, signify want of character and honor; have almost made, indeed, the adjective stand for a designation of the kind of lawyer rather than the kind of practice. No, the highest public duty is always to the State, and nothing must conflict with that. The lawyer should never forget that he is a citizen. He should never lend himself or hire himself to any service which will harm or hurt society. His noble profession does not require him to do this. It does not demand that he be the unscrupulous aider and helper of ruffians and law breakers, nor a mere unthinking human machine of advocacy. It has other and higher commands for him; other and nobler work for him to do. Let me not be misunderstood. Every man who prosecutes or defends a civil cause in a court of justice is entitled to the lawyer's help to make a fair preponderance in his favor; every man who is accused of crime must have a fair and impartial trial with the assistance of counsel, and must be acquitted if not proved 1 guilty beyond a reasonable doubt. While, then, the lawyer stands for him in either case, he does it as an officer of the law and of the 184 MODERN JURY TRIALS. court, and under a solemn oath to do his duty to both. If his client is in the wrong and he knows it, I think it is his duty to withdraw from the case, or at most to see only that the forms of the law are com- plied with, that only justice is done and that no dangerous prece- dent is set. If next, it be greatly doubtful to him whether his client be in the right, even then, I say, give him the benefit of the doubt and struggle manfully, but guardedly and within the bounds of a due moderation, for his cause. So much is due to the client on the one hand and to the law on the other. But if now the advo- cate knows, or fully believes, his client to be in the right; to be, for instance, an innocent man unjustly accused of a great and heinous crime, then comes the supreme duty, the highest which man can perform for man. Then let learning and eloquence, and tact and energy, and every power and attribute be put under contribution for the noble work. Stand up bravely, then, if need be, against the menace of power or the frowns of public opinion; let no mobs terrify, no odds appal, no opposition daunt; yield not one inch of ground till driven from it; struggle with tireless and sleepless energy to save a fellow man from a fate so unspeakably awful. This is true advocacy in its noblest form, almost God-like in its character and the crowning glory of the bar. Such advocacy has been seen in the courts, and in many notable instances its courage has been as fine and its chivalry as superb as were ever witnessed on any battle field. IMPROVEMENTS AND MODIFICATIONS NEEDED IN THE JURY SYSTEM. But with all its faults of advocacy, and with the many impedi- ments to its fair and just working, the jury system is the best that can be devised, and should be retained. The fine balance of its sev- eral parts, necessary to its complete and harmonious movement, is frequently disturbed in practice, and it sometimes seems to fail of its true ends. Like all human institutions, it is not perfect. It may, undoubtedly, be improved, and I think it ought to be improved in some important respects. In (he first place I think it should be improved by changing, in civil cases, the rule requiring unanimity. The frequent disagree- ment of juries is one of the just complaints against the system, and these are the necessary fruits of this rule. I cannot here go into a discussion of this question, which has already received the atten- tion of law-writers and law-reformers, but it has always seemed to me that the weight of reason and argument was on the side of a modification of the old rule. The question should be looked at in its practical bearings. Whatever the origin of the rule — whether TRIAL BY JURY. 185 it came from the number of the Saxon compurgators, or from an old requirement of the agreement of twelve, when the whole num- ber was greater, or from the wish of the law to protect each indi- vidual member of a jury from responsibility by requiring unanimity before giving any effect to their action, it should give way to a bet- ter administration of justice. I believe this modification is required and demanded by strong practical reasons and considerations, which are felt every day in the courts. Certainly the requirements of unanimity is somewhat inconsistent with the general rule which prevails in a republican form of government, where the gravest public questions are settled by a bare majority. It would seem, on principle, that if a question which vitally affects the welfare and happiness of a whole people may be settled by the preponderance of a single vote in millions, that a little petty matter of private dispute, between two neighbors, ought to be settled by a two-thirds vote of a jury for one or the other. And no man can doubt that this would directly facilitate the disposition of causes in the courts. I would not hesitate, then, to make the reform. It is not suffi- cient reason to me for retaining a bad rule to say that it has pre- vailed for many hundred years. Because it is old, does not neces- sarily show that it is right. But while I would make this change in civil cases, and permit a two-thirds vote to carry a verdict, I would not disturb the rule in criminal cases, for there the accused ought to have the benefit of the rule as it stands. The humanity of the law and the reason for greater caution and certainty all require that he should only be found guilty on the unanimous judg- ment of the whole twelve. Again, another disturbance of the just balance and working of the system is frequently seen in the wresting of the trial by jury from its original purpose as an investigation of facts and turning it into a proceeding where the effort seems to be how not to find the facts. The utility of this form of trial lies in its adaptation to find the merits of a case by a direct and clear inquiry for that purpose. It is not a place to try questions of law, like a co%rt of last resort, and it should, as far as possible, be kept clear of all legal technicali- ties and discussions. Our jury trials are frequently burdened with too much law. I know it is often the policy and tactics of counsel for defense to obscure the real issues of fact by raising false issues of law; and many times, too, the effort is successfully made to draw the mind of a jury away from the main and decisive facts in a case into labyrinths of fine-drawn speculations and remote collateral 186 MODERN JURY TRIALS. questions. Our courts should draw the line more tightly and keep closer to the real issues. It is these long, wearisome, verbose trials, burdened down with remote collateral issues and hair-splitting discussions of legal tech- nicalities, and finally closed by long, jumbled and confusing charges from the court, that produce almost inevitable disagreement of juries. The native common sense and discernment of a jury droop and die in such an atmosphere. From such a trial the average juror comes forth in a bewildered and half-demented condition — almost ready to be sent to a mad-house. It is useless to expect just and intelligent verdicts under such circumstances. One of the chief things which needs correcting in this matter is the judge's charge. I think our recent statutory fashion of giving charges in separate and detached legal propositions, first on one side and then on the other, is a bad one in practice, and tends greatly to confu- sion. Our judges ought to be able to charge on their own motion, in language so clear and simple that the most ordinary jury could understand. The charge of the court should be clear and consistent with itself, a logical whole, a legal setting for the facts of the case, or the outlining of its legal boundaries, within which the jury are to perform their duty. It should generally be brief, simple and gen- eral; it should not descend too much to particulars, and above all it should leave the jury untrammeled as far as possible in their own peculiar field and province. One further improvement in the jury system is needed to bring it into complete accord with the spirit and progress of our age. I refer to a modification of the old rule of challenge, so as to meet a difficulty which is frequently found in securing an intelligent jury in cases of great public interest or notoriety. The want of a proper readjustment of the rule excluding jurors on the ground of opinion to the actual condition of our newspaper-reading people has, of late, in many quarters become a real scandal upon the law and a great hindrance to its just administration. A general reform is needed in this respect throughout the country. Here, in Michigan, however, with our remedial statute upon the subject, supplement- ing a wise and liberal construction of the common law rule by our Supreme Court, we have little left to be desired. ERSKINE AND CHOATE. Into this arena of the trial by jury have stepped some of the brightest intellects of the world. In the brilliant constellation of advocates who, in the last hundred years, in England and America, have reflected the light and glory of their genius upon the forensic TRIAL BY JURY. 187 stage, I would place Erskine and Choate at the head. I do not for- get Brougham, and Denman and O'Connell, and the marvelous Curran on the other side of the ocean, nor Pinekney and Hoffman and Prentiss and Paul Brown and Brady on this side. But all these, and many more ahle and gifted men are fairly distanced by these two great and incomparable advocates, who must stand in their respective countries as the bright, particular stars of the jury forum. But although Erskine and Choate were almost equally great as jury lawyers, their lives and careers present a series of sharp and striking contrasts. Erskine, the scion of a noble Scotch family, with imperfect early education, and after years wasted in a most opposite and dissimilar pursuit, took up the law when weary and disgusted with the life of an army officer in time of peace. Choate, a New England farmer's son, came early to the bar, after full pre- paration and worthily crowned with academic and collegiate hon- ors. Erskine never became a scholar, and was never distinguished for learning in the law or wide reading of literature. Choate, in all his subsequent career, was a laborious student and undoubtedly ranked higher in legal and general learning than any other advo- cate of his time. In the work which these men did at the bar the same contrast is presented. It happened to Erskine to be employed in a remarkable succession of great state trials in which he became the advocate of the rights and liberty' of the citizen against public despotism, and in giving the death blow to the doctrine of con- structive treason and vindicating the right of free speech and a free press, he performed the noblest service to the law and the free constitution of the empire and won unfading and immortal forensic honors. Choate, on the contrary, was never privileged to argue a single case of great public political importance, but was compelled to use his vast and varied powers in questions of mere private interest and dispute — a cirpumstance which, in his last days, he recalled with pathetic regret. So in the splendid and unequaled gifts which each brought to the bar they were still dissimilar. Erskine, who commanded the higher power and the better art, spoke with singularly clear and felicitous language, in sentences short and rich with beauty and strong with logic, and not unworthy of the great models of English speech which he found and studied in Shakespeare, Milton and Burke. Choate, whose learning was deeper and whose vocabu- lary was wider and ampler, spoke in sentences of remarkable length and resounding sweep and rhythm, and astonished all by the amaz- ing affluence and gorgeousness of his diction. Both were men of 188 MODERN JURY TRIALS. high imagination, but while Choate was more poetical and subtle in his fancy, Erskine was more vivid, intense and practical. Choate dazzled and overwhelmed a jury; Erskine swept and mas- tered them. Choate more resembled Cicero, who was a rhetorician as well as an orator, while Erskine was more like Demosthenes, who was the greater master of true eloquence. In their personal appearance and outward manner, also, these great advocates were widely different. Erskine was fresh and buoyant, full of vivacity and of fine and engaging presence ; Choate was angular and almost ungainly of form, of pale and hag- gard countenance, and with only the divine genius looking out from his deep and burning eyes to distinguish him from an ordi- nary man. Possibly this may account for the fact that Erskine was full of personal vanity, while Choate was singularly modest and unenvious. But in the midst of these many contrasts, one great and striking parallel stands out in their public careers. Each left the bar for a brief season for service in a legislative assembly, the one in the British House of Commons, and the other in the Senate of the American Congress. Each wearied and failed in the new and uncongenial place; and stranger coincidence still — each met and quailed before a great parliamentary leader — Erskine before the imperious orator and statesman, William Pitt, son of the great commoner of England, and Choate before another proud and arro- gant parliamentary chieftain, Henry Clay, the great commoner of America. Returning now to the bar and the courts, after their legislative failures, the old contrast stands out again in their lives, even to the very close. Erskine went upon the Chancellor's woolsack, for a brief period, and then retired at fifty-seven from the bar and the courts. Choate returned from the senate to the bar while yet in his early prime, and gave thereafter his best powers and most bril- liant efforts to his profession. Erskine died at seventy-three, after a long, sad evening to his life, in which he missed the old excite- ment of the courts and found no compensation in the love of books, that sweet solace of cultivated old age. Choate broke down suddenly at sixty, while yet in full practice, his nerves shattered by the long contentions of the forum; dying prematurely, and missing what he had so longed to enjoy — a peaceful and restful evening to his stormy and laborious life, when he could forget the fiery encounters of the bar in the sweet studies and unfailing delights of the books he loved so well. And so in death the great advocates present their last sad contrast, as each missed the closing TRIAL BY JURY. 189 felicity of his life — the one in living too long, the other in dying too soon. CONCLUSION. Thus all too briefly and imperfectly have I sketched this great institution of the trial by jury, and, as I turn away from the theme I deeply realize how much is left unsaid. The greatness of the sub- ject has embarrassed and oppressed me. In considering it, our minds run back through many stormy scenes of English history, through many great political changes and revolutions, to the early and memorable days when the foundations of constitutional free- dom were laid in England by the first successors of the conqueror. Then and there was begun to be builded the grand and majestic edi- fice of the common law, and into its solid masonry was wrought the trial by jury. There let it remain so long as the magnificent struc- ture shall stand. It has been a glory and a boon to England; it is and will be a blessing and a glory to us. No man can safely predict what our national future will be. The events of our recent history have dis- turbed that easy and boasted confidence in our institutions and our future that once prevailed. I invoke no spectres to rise in our national pathway; I cast no horoscope of coming ills, but whatever the future, whether cloudless and serene or stormy and tempestu- ous, it will be well to hold on to the trial by jury. We may never have tyrants, we may never have Caesars, but if we should have them they will seek to accomplish the downfall of free government, not by directly overriding the constitution, but by using the forms of law to strangle and subvert its spirit. No central despotism, no rule of monied or political monopolies can successfully control for tyrannical or sordid purposes an institution which derives its life and power from the great, honest masses of the people. And here will be our safety. For the jury system is the handmaid of freedom. It catches and takes on the spirit of liberty, and grows and expands with the progress of constitutional government. In England, in the seven- teenth century, under the tyranny of the S,tuarts, a jury at the instance of a cowardly and despotic king, sent the noble Russell and the brave Sidney to the block for constructive treason. A hundred years later, an English jury acquitted Lord Gordon, and Hardy, and Home Tooke and Thelwell, on the same charge, although pressed by the whole power of king and government; and a little later still, not all the influence of the ministry, though aided by the savage energy of a chief justice of England, could wring 190 MODERN JURY TRIALS. from an honest and fearless English jury, an unjust verdict against a poor and humble private citizen, who, all unaided by counsel, con- ducted his own defense. No; civil liberty cannot dispense with any of her armaments. She needs them all to battle with tyranny and oppression. Trial by jury is one of the chiefest of these. The noble panegyric which Blackstone pronounced upon it in his immortal commentaries is well deserved, and if it be true, as he suggests, that possibly Rome, Sparta and Carthage fell because they did not know it, let not England and America fall because they threw it away. PIEKCE WILL CASE. Speech of Hon. Chas. S. May, at Kalamazoo, February, 1876. One of the most important, as well as one of the most interest- ing, civil cases ever tried in the State of Michigan, was the Pierce Will Case of Kalamazoo county. The large amount of money con- tested for, the great number of witnesses examined, and the pecu- liar and semi-tragic nature of the facts, all combined to awake in the public mind more than the interest usually created by trials in court. The case was tried twice. The first trial occurred in June, 1875 and resulted in a disagreement of the jury — eight favoring the contestants and four sustaining the will. The second trial began February 12th, and concluded March 1st, 1876, with a verdict for the contestants. There were one hundred and fifty witnesses sworn in the case, being fifty more than were sworn in the cele- brated Vanderpool trial, and thirty-seven more than in the case of Tilton v. JBeecher. The jury were out twenty-six hours, and what is worthy of note, rendered their verdict upon the twenty-third anniversary of the day upon which the first wife was turned away. If there is a scene to move and touch the tender heart-chords of a jury more than the destruction of a pioneer's home — the putting away of a tried and faithful wife and mother in her old age, the " over the hill to the poor house," more intensified than in this trial, I have not seen it or read of it. The masterly arrangement of these exciting scenes is in itself eloquent. The ingenuity of PIERCE WILL CASE. 191 counsel is in the simplicity of his statements; holding the clear mirror up to nature, which reflects the sad condition of a home in ruins. "When Mr. Buck closed, a dense crowd had filled the court room, all anxious to hear Hon. Chas. S. May, who was to make the main argument for the contestants, and who, it was expected, would be more eloquent than ever before in a jury case. "It was a scene long to be remembered in the history of the court. In the audience were large numbers of ladies, and when Mr. May rose at the close of the short intermission, a silence prevaded the room, which was the forerunner of the rapt attention he received during the four hours which he spoke. " He was pale, anxious and earnest. Each listener leaned forward to catch his opening sentences. He began slowly and calmly. But soon rousing with his subject he gathered the facts into logical order and, clothing them in eloquent words, wove them into a powerful argument." Personally Mr. May is an exceedingly attractive speaker — nearly forty-five years old and looking much younger; of medium size and height, keen eyes, dark brown hair, light mustache, deep, strong, penetrating voice. He speaks rapidly and fluently, warms with his subject to a bright glow of oratory, with a peculiar fire of earnest and impressive delivery that is singularly effective with juries. To hear him speaking in any, building draws one nearer and holds one's attention with the keenest interest throughout. He has long been a leading advocate in Michigan. He has served as lieuten- ant-governor, has received the vote of his party for United States senator, and is very prominent as a political orator, whose speeches attract unusual interest. The argument of Mr. May is of such a graphic and, at times, thrilling character, as well as tersely historical, that it furnishes all the facts essential to a full comprehension of the issue determined at the trial. His positions were believed and followed by the jury. Mr. May said: Gentlemen of the Juet — I cannot tell you how deeply I feel the responsibility which now devolves upon me. As I approach the argument of this important cause and think of the interests confided to me, and how much may possibly depend upon what I may say to you, I am almost overwhelmed with the sense of 192 MODERN JURY TRIALS. responsibility. The stake which these contestants have in this issue is a deep and vital one, and as I stand here now to speak for them, my mind goes back over this testimony to those days long ago, when in summer heat and winter cold they toiled in that early pioneer home, in the midst of privations and discouragements, to lay the foundation of this ample fortune which is now in contest. Gentlemen, there has never been in the whole history of this court so important a civil cause tried before a jury of this county. This is true, whether we consider the amount at issue, or the intrin- sic character of the facts. For this is not only a case involving nearly a hundred thousand dollars in money, but it is one, also, of deep and even tragic interest. It is, indeed, a powerful drama from real life. Put upon any stage, these facts would draw tears from human eyes and stir all human hearts to indignation. Told anywhere under the circuit of the sun to civilized men, they would touch the tenderest chords of human sympathy, and even savage breasts would be moved by them. Gentlemen, you have a high duty to perform. Not often does such a duty devolve upon a jury. You may all live long lives — as God grant you may — and be honored and trusted by your fellow citizens, as some of you already have been, but you will never meet a greater responsibility than this. It is my duty now to speak for these contestants; it is yours to listen and weigh what I may say. I have often thought that this great feature in the administration of justice was not rightly understood by juries and the public. It has seemed to me, sometimes, that juries and the people at larga have regarded the arguments of counsel as an infliction which th« law rather permitted than sanctioned, and have therefore turned deaf ears to the bar. But this is not right. My standing before you is no idle, useless ceremony; it is one of the solemn institu- tions of the law, and as I speak upon my responsibility as an advo- cate, it is as much your duty to listen to me and to the argument which I shall make, as it is that you should listen to the charge of his honor, when he shall come to deliver it. You have been patient, attentive listeners to all this testimony and all these pro- ceedings for nearly three weeks, and I know that I shall have your candid, patient, careful hearing. I have invoked such a hearing from you, gentlemen, for I wish to appeal to-day to your reasons, to your judgments, to your under- standings. I wish to make an argument to you — an argument founded upon the facts, upon the law, upon logic. I wish to indulge in no tricks of speech. The warning of the counsel was entirely unnecessary. I shall not be betrayed into leaving the PIERCE WILL CASE. 193 solid ground of my argument to gather any useless flowers of rhetoric, or to indulge in any unwarranted appeals to your sympathy. But it will not be the misfortune of my clients in this cause, if I shall build a highway of reason and logic, over which the sympathies which I know fill all your hearts may be carried to a verdict for these contestants. ' Happy is that cause where no vio- lence needs be done to the better feelings of our nature, but where the lines of sympathy run parallel with those of reason and of duty. THE MAIN QUESTION. Gentlemen, the main question which we have here to try and decide — the question which involves all the others, is this : Is this paper which has been offered in evidence by the proponents the last will and testament of Isaac Pierce ? In other words, is this a valid will ? Now, there are two broad grounds on which we attack the valid- ity of this will. Though Isaac Pierce signed this paper with his own hand, though it has all legal and due formality, we say it is not his will in the law if, at the time of its pretended execution, he was either not in his right mind, or was under the undue influence of another. These grounds are entirely independent of each other — either is sufficient to set aside the will, and on the question of mental capacity the court will instruct you that the burden of proof is upon the proponents who offer this will. * * * [A strong statement of mental unsoundness, sickness, old age and accidents, detailed and examined. The story of an early pioneer and his struggle with the great battle in the wilderness, which is familiar to all early settlers in any State. Counsel argues at length on the theory of mental weakness from long habits of intoxication; of being lifted from his (Pierce's) wagon in a state of unconscious stupor; dwells upon the demented condition of the mind from such causes; shows his anger and remorse, his exclamations of pain and long suffering, and comes to the consider- ation of undue influence and incapacity to make a valid will. J And now I come, gentlemen, to discuss more clearly the rela- tions of this woman, Emeline, to these facts. She is the woman in the case; and not the first one, either, who has figured in cases like this and been accused of exercising undue influence over men. Such cases and instances are very common in the courts'. They are, indeed, of longer standing than the courts; they are as old as 13 194 MODERN JURY TRIALS. human nature itself ; for I do not forget that, according to the sacred legend, it was the first woman who unduly influenced the first man to eat the forbidden fruit. I am to show you here the powerful influence of an artful and designing woman over a man of rough nature and strong passions — a woman twenty years younger than the man, and first securing her influence over him through the unlawful gratification of his strong and unregulated passions. HISTOKIC INSTANCES THE MISTRESSES OP KINGS. Is there any inherent improbability in such a case ? Why, gen- tlemen, history is full of instances like this — instances where great monarchs and rulers of men have fallen, through the same source of human weakness, under the influence and control of the other sex. Who has not heard of the mistresses of kings and the part they have played in the history of the world? Louis XIV, of France, was called " The Grand Monarch, 1 ' and "Louis the Great," so splendid was his long reign and so powerful was he among the sovereigns of the world ; and yet, though this man was an absolute monarch over France and dictated law to all Europe, sending out his great marshals and armies to victorious fields of conquest, and ruling in his cabinet with arbitrary and autocratic will, he himself was conquered by the charms and blandishments of a solitary woman — a woman without royal blood, a butcher's daughter, who ever after, until the day of his death, exercised supreme influence over him, dictating war and peace — even compelling him in the interest of her religious fanaticism to revoke that royal edict of Nantes, and let slip the dogs of religious persecution, deluging a whole region in innocent blood. I could give you many more signal instances of this kind. The very next successor of this great king of whom I have spoken, the next Louis in that long line, had his Pompadour, as the other his Maintenon — another woman from humble life, who ruled the ruler of the nation with an artful and unbending will. And there was the English Charles II, with his famous mistress, and in our recent times the wayward and romantic Lola Montez, the dancing girl who came to rule the king in a European court. Shakespeare, who has illustrated all human nature and passion, has drawn a powerful picture of woman's influence in his Lady Macbeth, who urging her guilty but hesitating lord to the terrible deed of blood, says to him — "Only look up clear; To alter favor ever is to fear; Leave all the rest to me.'* PIERCE "WILL CASE. 195 Why, gentlemen, these counsel say to you, that it is impossible that the wife of this man could have had this influence over him — that Isaac Pierce was a self-willed, strong man. A strong man ! Well, was he stronger than Sampson, who could tear down the gates of a city ? And yet Sampson, gentlemen, was weak enough when his head reposed in the lap of his Delilah. So it was with Isaac Pierce. Rough and .strong as he was by nature, he came at last like Sampson, through the same channel of influence, to obey the will of an artful and designing woman. ISAAC PIERCE AND HIS FAMILY IN 1852. Now, gentlemen, let us turn to this testimony and see when and how this influence began. Let me take your minds back to 1852, and show you Isaac Pierce there with his family on the old home- stead, at Climax. Married to his first wife in the State of New York, in 1824, he had removed with his young family to Michigan ten years later, and had settled down upon his first purchase of land in the beautiful region where he continued to live duriDg all this history, for nearly forty years, until the day of his death. At this time — 1852 — he had with him, besides his wife, "Aunt Katy," as she was afterwards called, six children, ranging in years from sixteen up to twenty-seven — three boys and three girls. He was now about fifty years of age, and the possessor of eight hundred and fourteen acres of land — eight hundred and sixty-nine acres being all he owned at the day of his death. The story of this family had been like the story of other pioneer families in this region, only a little rougher and harder. They began with little and they worked hard, boys and girls alike — the daughters and the mother frequently working in the fields with the men, and the testimony many times shows us "Aunt Katy" bringing with her own hands the family wood from the field to the house. "We all worked hard," say these children on the stand, and so testify, also, all the witnesses who knew them in those early days. Isaac Pierce at this time, though a rough, aus- tere man, seems not to have been an unkind father, and he was well disposed towards his family. Drinking had not got to be so settled a habit with him and he worked hard with the rest. He had overcome all the difficulties of a new country; had brought his family safe through all the trials and dangers of that new home; his judgment had been good, his plans had worked well, and he was a man now in easy circumstances and comparatively rich among so many of his less prosperous neighbors. 196 MODERN JURY TRIALS. THE BEGINNING OF TROUBLE. But a great trouble was about to fall upon tbat quiet and peace- ful family. In the late summer of that same year 1852, Isaac Pierce met this woman, then Mrs. Emeline Hadley and an inter- esting young widow, in her mourning weeds for her husband, who had suddenly died in the month of July, in the town of Penfield, in the county of Calhoun, which was their home. She met Pierce at Battle Creek — it seems she knew him, at least by reputation, before — and applied to him to become administrator of her hus- band's estate. He seems to have been struck with her person and her request, and at once undertook the duty. And then com- menced his relations and intercourse with her, destined to change the whole course and current of his after life.. He began soon to make visits to Penfield, which were frequently repeated, and we catch a glimpse of him defending her law suit at Battle Creek. SIGNING THE SEPAKATION PAPEES. Pierce is soon infatuated, and nothing can now stand in the way of his dreadful purpose. All his ungovernable passions are roused, and he turns fiercely upon the wife of his youth as an obstacle in the way of his new and unholy desires. You remember that in the solemn night time, the youngest child, Lucinda, had heard her father's voice, in high and terrible words, demanding that her mother should consent to a separation, and leave her home and children forever. At last by the most terrible threats and com- mands — by the use of language too shocking and awful for me to repeat, he compels her to come to Kalamazoo, where this same George Thomas Clark, the adviser and tool of Pierce, had drawn up the separation papers for her to sign. You remember these papers, gentlemen, with their false and lying preamble, " Whereas, unhappy difficulties have arisen between the said Isaac and his wife Catharine." What difficulty had she made ? The wretched wife could not at first sign the papers. She took the pen, officiously put into her hand by Clark, and then burst into tears, saying she could not do it; "she could not sign away her home and children." The superserviceable Clark is ready to urge her; to tell her of his brother's case in England, and how that was managed. Pierce stands by, over-awing her by his pres- ence and by the stern and unbending purpose which she sees writ- ten in his face. At length she yields, takes the pen, signs her name and turns weeping and sorrowfully away. Then, with a heavy PIERCE WILL CASE. 197 and broken heart, she returns for a brief season to the home where she had worked so long and endured so much for her husband and her children. It was in the month of November that Pierce brought Mrs. Had- ley into his family at Climax. Up to this time, these children tell you, Isaac Pierce had lived peaceably and pleasantly enough with his wife. But a terrible domestic cloud had now begun to gather. Quarrels and high words began to be heard by the affrighted children between the father and mother. Pierce leaves his wife's bed; he makes no conversation with her; he does not treat her any longer as his wife, but installs Mrs. Hadley at the head of the table, and is even found in the night time sharing her room and bed. Aunt Katy passes around uncomplaining, but sad, and frequently in tears. THE CULMINATION" OF THE TRAGEDY. Finally the awful climax of her troubles comes — the day of fate and dobm to this poor woman, when she is sent away forever from her home; taken away by the orders of this infatuated and infuri- ated man, who had once solemnly sworn at the altar to love and cherish her; taken with a few cheap and humble articles of house- hold furniture and sent, by a back way, over the hill to the little log house in the hollow which was to be her future abode; taken while protesting and crying out in the agony of her soul that she could not go — that she could not thus leave the home she had worked so hard to make, and the children she had nourished and loved. How can I picture to you that scene of domestic desolation and ruin — that terrible scene of a wife's dethronement and banishment ? Gentlemen, I have heard the great actors and tragedians of this generation who tread the mimic stage and thrill and melt excited thousands with their delineations of human sorrow and passion, but I have heard from the lips of Lucinda Milliman, on that wit- ness stand, the story of a real tragedy in humble life, more pathetic and powerful than any imagined grief of kings or queens, or any catastrophe whatever of human greatness. That agonized wife and mother in the midst of her weeping children ; her tearful protestations and pleadings — the demoniac husband and father standing by, lost now to all feelings of gratitude and pity, and hurrying up the cruel preparations for her departure — oh ! gentle- men, it was a spectacle to make the blessed angels weep ! Well might the wretched mother have cried out in the homely but pathetic language of Michigan's own poet : 198 MODERN JURY TRIALS. " Over the hill to the poor-house — my children dear, good-by ; Many a night I've watched you when only God was nigh ; And God will judge between us; but I shall ever pray That you may never suffer the half of what I do to-day." Gentlemen, a scene like this must melt and more all human hearts. It brings to our minds that other scene enacted upon a royal stage, between crowned heads, over which the world has hung and wept for years, where a great Emperor put away the 1 wife of his youth — the wife who had loved him and helped to place him on his throne. That separation and banishment have come to be one of the touching stories and tragedies of history; but human nature is the same in farm house and palace, and this tragedy in humble life appeals as spontaneously and powerfully to the deepest and tenderest sympathies of all our hearts. How overmastering must have been the influence to drive this man to such a crime; how cool and calculating the disposition of this woman, Enieline, who could look calmly on and witness it ! I turn to you now and ask you this all-important question : If this woman who sits here could make Isaac Pierce do such a deed as this in the day of his strength and prime, could she not influence him in the day of his weakness and decline to make this will ? Gentlemen, this was a horrid piece of business — blasting and withering to the good name of the living and the dead alike. And yet I have heard here a wretched plea in defense of it— a plea put forth by this guilty party to it — the plea that the banished wife was not neat and tidy in the management of her household ! God of mercy ! what a defense is this ! Was it not enough for this poor old woman to suffer, to be exiled and driven from her home, to be crushed and outraged in her deepest affections, to have her life blasted by this great grief ? Was not her cup already full ? Did it need that this insult should be added to all the rest before she dies? And what do you think, gentleman, of that disposition which prompted such a plea as this ? "Aunt Katy worked hard " — " she labored faithfully for her husband and children " — " she backed the wood up to the house " — " she did the best she could." That is what the witnesses say. "She did as well as she could," reluctantly says one of the wit- nesses who comes here to heap this insult upon her old, gray head. Who could do better than that ? And was Isaac Pierce, from this testimony, the man to complain of untidiness in his wife ? Gentle- men, I dismiss this wretched plea without further words. The proponents are welcome to all they have made by it. Gentlemen, the influence of this woman over Isaac Pierce was PIERCE WILL CASE. 199 never broken during the twenty years she lived with him. Once having secured her control over him he was submissive and obedi- ent to her slightest wish. * * * He recites the testimony at great length, reading from notes and repeating from memory, giving a graphic analysis of character, appearance, and probability of their correctness of detail, and pro- ceeds: Now, gentlemen, I think that you will agree with me that here is a very considerable mass of testimony tending to show the pos- session of a strong and powerful influence by this woman over this man. The question naturally arises now: Did she exert this influ- ence upon him in order to obtain this will ? In the first place, I ask you, gentlemen, what would be natural and probable in such a case? Consider her situation and that of her children by Pierce. Consider the grave legal questions and doubts which might arise in regard to her true relations to him and to his property; to the legality of her marriage; to the legiti- macy of her children. Under such circumstances what would be natural for her to do ? Would she not desire, above all other things, that Pierce should make his will and thus settle these grave questions and doubts forever, and confine the property to her and her children ? Eemember, the other wife was still living, and her children, these contestants, were all about her. Why, gentlemen, human nature itself answers these questions. This woman could not have been true to her own interest and to the interests of her children, if she had not exerted her uttermost power and influence to obtain a will such as she needed for her pro- tection. Do you believe her when she swears that she never spoke to Pierce in her life about a will, and did not even know what he was coming to Kalamazoo for when the will was made ? Gentlemen, on this subject, it is a most significant fact that this will is made in the interest of this woman and her children, and that, too, in the very face of all these declarations and expressions by Isaac Pierce of a contrary intention. What do you suppose induced him thus to forget and deny his own words, to forget his duty as a man and a father, and to disinherit his own blood ? What power drove from his mind the remembrance of these more than orphaned children of his unfortunate daughter, Mrs. Parish? Ah, gentlemen, this is not such a will as he told Dr. Babcock, on what he thought was his death-bed, he wanted to make. 200 MODERN JURY TRIALS. "TO KEEP PEACE IN THE FAMILY." No, gentlemen, this will was wrung from Isaac Pierce in his old age, in his weakness, in his sickness, in his intoxication, by the ceaseless and persistent importunity and authority of this woman. Against her oath, denying all this, saying she never spoke a word to him on the subject, I put the oft repeated declarations of Isaac Pierce himself ; I call him from the grave to confront and impeach her. You will believe him when he tells you that this will was not his, but hers; that it was made to please her and get rid of her ceaseless importunity — " to keep peace in the family." How many times did this old man use that expression, as he complained, in the bitterness and sorrow of his heart, of his domes- tic troubles? Besides the many other things which he had to do "to keep peace in the family," was the making of this very will. Your have seen how, for this purpose of keeping peace, as he him- self said, he wanted his son Loren to pay him the thousand dollars for the land, telling him he would pay it back to him; how, accord- ing to the testimony of the venerable Moses Hodgman, he exacted the mortgage from Milliman and his daughter, privately assuring them that they would never need to pay it; how he took the note from his other son-in-law, Clark, telling him it did not need to be stamped, as he only wished it to satisfy his wife. In all these instances he used this same expression, "to keep peace in the fam- ily." But, more than all this, he told John Christol, in May, 1871, that he had got to make a will to suit his wife — " to keep peace in the family." He told Ephraim Bonner, in the month following, that he was going to make a will to suit Mrs. Pierce and " to keep peace in the family." And, finally, on the evening of that very twenty-ninth day of July, when returning from Kalamazoo, he told George Whiting, at Galesburg, that he had been to town doing some business "to keep peace in the f amity, " that he had "signed the death warrant of his first wife and children." How significant and impressive is such testimony as this ! Again I ask you, gentlemen, can you doubt that it was the influence of this woman, her importunity, her demands, her author- ity and control which induced and coerced this weak and worn out old man to make this will? She was twenty years younger than he; in the full vigor of her prime — a keen, artful, self-poised and calculating woman, as her whole appearance on this trial abund- antly shows. She was just the woman to hold with a steady and PIERCE "WILL CASE. 201' iron grasp the power which, long before, she had acquired over this man. ISO RATIFICATION OF TUB WILL. Need I say to you, gentlemen, that this will, once made under these circumstances, could never be ratified by Isaac Pierce. I know the counsel on the other side have made this point, and they will ask the court to charge you that you may find a ratification of this will by Pierce, no matter under what circumstances it was made. ~Now, I take issue with the gentleman, most decidedly, on this question, and I say in the first place, that, as a matter of law, there could be no such thing as a ratification in this case. And, for the simple reason that if this paper was signed by Isaac Pierce when not in his right mind, or when intoxicated, or when under the influence of another, then it was not his act in the law, it was not his will, but was void, and of no effect whatever. It is void, in such case, because there is no consenting mind or will. Certainly, I must be right in saying, that if this man signed the paper when his reason was dethroned, or when his mental faculties were drowned in liquor, and when he had no such sound mind and mem- ory as the law requires, that then his act was void, and being void, that the law, and reason, and common sense, all would unite that he could not afterward, by anything he might say, give any effect to that which was wholly without effect and worthless in the begin- ning. The law is always founded upon reason and common sense. A man may ratify an act which he does while under some legal disability; as, for instance, a contract made before he was twenty- one years of age; but he can never ratify that which he never did. In other words, in all cases of what the law calls ratification, it is always supposed that the act was an intelligent and conscious one, and that the disability was only from the outside. So I say that here there is no question of ratification at all. It is a mis- nomer and an anomaly to say that there can be any such thing as the ratification of a void will. But if it be urged that Pierce could ratify the will if it was sim- ply made while under undue influence, then to this, in the second place, I reply that, as a matter of fact, the testimony shows that the influence of this woman was a continuing influence; that it remained and was never broken while this man lived. So the answer is com- plete and as broad as the proposition. For, if the influence was so great as to be undue in law at the time when the will was made, then, before he could ratify the act of making it, he must be 202 MODERN JURY TRIALS. shown to have escaped or recovered from this influence, and to be in a situation where he could speak his own mind and exercise his own free will. When, I ask you, is this time proved to have been? But, gentlemen, the court will tell you that there can be no such thing as a ratification of this will, that it must stand or fall upon the man's condition at the time it was made, and that nothing he could afterwards say or do would breathe the breath of life into this paper, if, at this time Isaac Pierce was not in the possession of a sound mind and memory, or was unable to exercise his own free will. Something cannot be made out of nothing; nor can so solemn and important a paper as a man's last will and testament, which the law requires to be in writing, and duly and formally declared, attested, signed and sealed, be revived from legal disabil- ity or death by a mere informal or casual verbal acknowledgment, made in reckless, blasphemous, or drunken speech. THE WILL UNNATUKAL AND UNJUST. Gentlemen, there is still left one great test or principle to apply to this will in order to see whether it be the solemn and deliberate act of the testator — and that is the test of its humanity and its justice. I know a man has a right, under the law, to make an unjust will, but I know, too, that when the question is whether he has made a will, and that question be at all in doubt, you may look into the provisions of the instrument itself to see whether they be contrary to natural justice, so that it may be determined whether the man would be likely to make such a disposition of his property. A will that is inhuman and unnatural is at the same time unreason- able, irrational and improbable. I have therefore, gentlemen, the right to urge this consideration upon you and to ask you to look to this question of justice. Need I take one moment to show that this will is grossly unjust? Here are these children by the first wife, this man's first children, who helped him to accumulate this property, practically disinherited, their mother turned out of doors, while this woman Emeline, the tempter and destroyer of this home, and her children, who have never earned or added anything to the estate, are given everything. Why should Isaac Pierce thus forget these older children ? They had worked hard for him; they were poor and needed assistance as he well knew, and he had no feeling against them. Why should he cut them off in their poverty ? Why, gentlemen, all this evidence shows that these contestants had been most generous and forbearing in their conduct towards PIERCE WILL CASE. 203 their father. They had always been respectful to him — even when his life had been such as not to command respect from the world ; they had been kind and attentive to him when suffering from accidents or sickness; and finally they exercised a degree of for- bearance when their mother was sent away which seems, at first view, almost shocking to our human sympathies. The counsel has dwelt upon the fact that some of these contestants assisted their father in procuring the Indiana divorce from their mother. They did this, no doubt, thinking it was better than the open shame and danger of his living in adultery with this woman in the midst of a community excited and threatening a prosecution; but without this plain and perhaps sufficient motive which I can plead in their excuse, the fact remains that they rendered a much needed service to their father. Why should Isaac Pierce forget all this when he came to make his will ? And there was his poor, unfortunate daughter in the asylum, and her helpless and more than orphaned children whom he loved and whom he told Dr. Babcock he intended to provide for. Why should he forget them ? Ah ! gentlemen, these questions cannot be answered satisfactorily on any ordinary principles of human nature or natural affection. He could not have forgotten these claims upon his bounty and his gratitude if he had been in his right mind or in the free exercise of his will. O ! it needed all the audacity of the counsel to say that this will was just. Gentlemen, the argument is an insult alike to your reason and your humanity. If this be a just will, then where can one be found which is unjust? If this be a humane and a natural will, then where can be found a will which is inhuman and unnatural? Look, gentlemen, at these opposing parties before you. Here, on the one side, are these contestants, the first children of Isaac Pierce — the poorly clad and hard-working boys and girls of that early, desolate home — now past middle life, some of them verging towards old age — browned and bent by toil, in rusty and homely garb, still hard-working and poor; cheated and deprived of their just inheritance, which now they so much need, by this relentless and grasping woman who brought calamity and sorrow into their father's household. There, on the other side, sits the author of all this trouble, surrounded by her daughters, the later children of Isaac Pierce, dressed in all modern extravagance and fi ner y — gay, frivolous, useless, modern young women, reared in luxury and educated at boarding schools. Tell me, which of these twain have earned the right to enjoy this property ? 201 MODERN JURY TRIALS. CONCLUSION. Gentlemen, this man violated the physical and the moral law alike; and he reaped the terrible penalty. For that great wrong to the wife of his youth his remorse was keen and lasting. It breaks out here and there, frequently, through the testimony. How touching and overwhelming was that incident related by Smith Lawrence, when Pierce passed his wronged and injured wife on the highway as the sun was setting, and gazing after her, exclaimed, as the tears came to his eyes: "I would give all that I am worth — I would give the whole town of Climax if I owned it, if I had lived with that woman!" There was conscience — there were the scourges of memory at work. At last, bent and broken under the heavy load of moral guilt, of violated physical law and domestic trouble, with mind impaired and shattered, and confused by drink, under the powerful influence of another, he put his unsteady hand to a will which outrages every sentiment of human affection, and controvenes every principle of natural justice. ; Gentlemen, it is your solemn prerogative now to correct and repair this terrible work. You must set aside this wretched mock- ery of a will. Let this man's property descend to all his children — to the deserving and the undeserving alike. These contestants will then only share equally with the children of this usurping woman, and she herself will remain the dead man's widow in the law, to the exclusion of that early, lawful wife, who still lives to suffer from man's injustice. What more ought these proponents to ask or expect ? Gentlemen, I beg of you to pause and reflect before you render a verdict sustaining this will. You have it now in your power to do a great and supreme act of justice — an act noble and God-like, and worthy of your sympathies as men and your oaths as jurors. It is the glory of a jury to be able to execute some portion of that justice which belongs supremely to God — to vindicate the cause of the weak and oppressed, and to blast and shatter the power of the oppressor. In the name, then, of common justice and humanity, I appeal to you for a verdict for these contestants. Let no preconceived opinions, no prejudice, no obstinacy in your jury room, no specious pleas of any kind, keep you from this high duty. For in doing this you will be true to your oaths, true to the law, true to what this dead man would say, could he now speak to you from the grave, and true to the eternal principles of justice and right. FARMAN-WARD TRIAL. 205 [Mr. May's speech covered fifty-four pages of closely printed matter, necessarily condensed for this purpose. The will was broken.] THE FAEMAN-WAED TEIAL. Held at Detroit, November, 1S67. In this trial Senator Jacob M. Howard made his last appeal to a jury. It is very brief, many of the circumstances being lost for lack of a stenographer's report. The facts, as preserved, will be read with interest by all who appreciate oratory or know of the distinguished advocates who participated in the investigation of the tragedy. The strong confidence of counsel on clearing their client by public opinion is a marked feature of the defense. Their theory was based upon the common sense of the jury and the right of protection that a brother could render an orphaned sister. The boldness of the appeal made for young Farman was heroic. The story of the case is almost incredible. In the early evening of October, 1865, while Captain John P. Ward (a vessel owner), was walking the streets of Port Huron, in company with his friends, he was suddenly confronted by defend- ant Farman, a boy of sixteen years, who fired three shots at Ward, wounding him fatally, death resulting on the 22d, some days later. Previous to the shooting, Ward had taken charge of Farman's little sister, of near fifteen years of age, to take her to Detroit from Lexington, and (as Farman believed) seduced or outraged the girl on the hurricane deck of Ward's steamer. The child being unat- tended, of weak mind and tender years, made the facts extremely revolting. Before the shooting, an examination was had, and it appears Farman feared Ward would be released and go free. Threats of that were freely made, and that no justice would bind him over. This, coming to Farman, led to the homicide. Further facts will appear in graphic form through the ingenious statement of counsel. The language of Hon. G. V. N. Lotheop is terse, and at times powerful, as the brief selections will show. He began by saying: 206 MODERN JURY TRIALS. The act cavries its own commentary. It is not the brutal kill- ing of an assassin. It frames a vindication in the minds of every right-minded man and every pure-minded woman. I never had a more grateful task in all my professional services than that which calls upon me to express this before you. We would not willingly drag the turf from the dead shame; we would leave it to time and oblivion. But in behalf of the living and the dead, and in behalf of justice in the case of this boy, I rejoice to do my duty. The charge is murder, one of the highest offenses against God and man. Look at the prisoner. Does he look like a murderer, or dangerous to society ? What is there in the act of the boy that speaks of a wicked and malicious heart ? Look at him; you see him moved by a great cause. You see before you his little sister, tender beyond her years. You see him with his widowed mother; you see the affliction of the family. There never was a more touching story in itself told anywhere. What is it that brings this boy to a bar of justice to answer for a crime ? What brought him here to-day ? It is the old, old story. A tragedy of wealth and pride that time has been repeating over and over again, and will as long as the world shall stand. This pride and wealth and lust learns its lesson slowly and hard. We see many of them in history. Twenty-five hundred years ago, when Brutus bore aloft the bleeding body of Lucrecia; when the people of Rome tore down the kingly throne, and the brutal emperor barely escaped alive, I dare say some satellites of Tarquin said this was murder; I dare say some senator might have protested against the aggression on the kingly life, but that is lost in history and the roar of the Roman people. We are told that the peace of society has been periled because a young Tarquin met his Brutus at the hands of this boy defendant. Our society ! has it been less protected, less secure, gentlemen of the jury ? For six months he has been liber- ated on bail, by one of the most esteemed judges that ever graced the bench, and we see no danger. Since he has been at large in his humble and quiet pursuit, who has noted danger ? Is it not quite the reverse, gentlemen ? You know the peace of society has not been periled; but a feeling of satisfaction has come to tell us that the ravisher in this community shall not go unpunished. Was there horror at the killing of Ward ? The horror belongs to the other part ! Murder is killing a human being in the peace of God. Was he in the peace of God? He that had invaded the sanctity of this poor girl's honor, was struck down by the noblest passion that can animate man ! An act for which every virtuous maid and matron in the land should crown him with wreaths of laurels ! FARMAN-WARD TRIAL. 207 Hon. A. B. Matnaed spoke eloquently for the defense, often in that peculiar vein of homely sarcasm that moves a jury more than logic : Counsel have cited ancient cases; so will I. There was the case of Simon and Levi in thirty-fourth chapter of Genesis. Levi had a beautiful sister, and Shechem, who seduced her, was a pretty respec- table sort of a fellow, for he said to Jacob, her father, "Ask me never so much dowry and gift and I will give it." But Levi was still angry at the outrage, and said, we cannot do this thing ; we cannot give our sister to the uncircumcised; and finally they were circumcised, and while they were still sore, Daniel fell upon them and slew them and took their sheep and cattle, and confiscated their property in good fashion. And Jacob thought it over and said to Simon and Levi, "Haven't we been a little severe in this matter ? " and the boys said, " Father, shall this man deal with our sister as an harlot ? " and Jacob subsided and said, " You served him right." There was another case, of David's son Amnon, that pretended to be sick, and had his sister Tamar sent in to prepare his meat. And Tamar took flour, and made cake in his presence, * * * and he forced Tamar, and outraged her. She protested and entreated, and all to no purpose. He insisted, and when he had done his devilish deed and turned her bodily into the street, he laughed about it and treated it as a huge joke. But Absalom, his brother, heard of it. Pie suppressed his wrath for two long years, and then, at a sheep shearing, while Amnon was merry with wine, they rushed upon him and slew him. And what did David say ? " When he learned that Amnon was dead, he was comforted." He knew he was not fit to live upon the earth. And this is from our good book, the Bible. Why, gentle- men, can you conceive of a case so outrageous ? Take a girl of twenty-five or thirty, it would be bad enough. But take a feeble child, who is put in the custody of one almost as her guardian and protector, and seeking a dangerous place, away up on a hurricane deck, to accomplish his hellish purpose! blasting her future life, and carrying ruin upon her heart-broken mother, widowed, poor, and unable to bear the anxiety of a trial like this! I tell you, gentlemen, nothing could sting the heart to madness as this transaction. And when you think of a strong man taking a timid girl upon that high deck, with a lie in his mouth, saying the air was better, that she would find company up there, and sur- rounded by his minions and crew to guard his dreadful deed; and say, when such circumstances are brought home to a brother, it is 208 MODERN JURY TRIALS. as though he canght the villain in the act; and in view of the degrading deed, and in view of the shielding the ravisher from the penalties of such an atrocious wrong — in the name of God, what more would you want to madden and craze and provoke one more to the deed he did ? I ask you, if that would not carry his passions beyond his control, what would ? If he had approached your sister, in the commission of the deed, would you not strike him to death on the moment, on the spot, and every man of you say "Amen ? " * * * If he had happened along in time to see the outrage, would you claim that he ought to be prosecuted ? * * * He had heard her story. He had heard Ward was going to escape. The scene came up in all its consequences. * * * And we all know, in deep affliction, there is no great outburst of feeling; there is a quiet surface, but a determined act. Can you believe this poor boy's mind was free from it, night or day ? This outrage on his only sister, of tender years, looking to him as her protector? Night and day, from that fatal time, he carried his sorrow, his emotions, till again and again he sees the deed in all its horror; sees his family disgraced, and the villain go free! I say it was too much for his reason, his judgment, and his self-control! And he broke down under it all; and it is for you to say, whether, under the facts, you will pronounce him a murderer! * * * I say, and say it solemnly, and say it meaning what I say, if this boy was a boy of mine, I would thank God that he had the man- hood to pull the trigger that sent the bullet which gave John P. Ward the downward pass to his final home! Farman s case was finally abandoned, although this jury stood eight for conviction and four for acquittal. An incident in the above case may be added. Counsel pressed the cross-examination of Farman to great length. Mr. Lothrop objected, as it might tend to prejudice defendant. Judge Walker directed that the question should be answered. Mr. Lothrop said, "Don't answer." "Answer!" replied Judge Walker, sternly. But the witness refused, and a scene of confusion followed, but no answer. After the jury retired, Mr. Lothrop was called up and fined ten dollars for contempt, being severely censured by the court, to which he said, "The peculiar circumstances of the case places me beyond the power to compete with the extreme language of the court ! " He had supposed his whole duty was to protect his client from harm in every way possible. He would not appeal, but he knew of RULES OF PRACTICE. 209 no precedent that would, under like circumstances, censure the act he had attempted in good faith. He continued at length, to the amusement of the bar, who evidently were clearly on his side. A passage at arms between Counselors Lothrop and Howard occurred at the closing of Mr. Howard's address for The People, that is an excellent specimen of the distinguished advocate's power in reply. Mr. Lothrop had said to the jury: "It was an act, gen- tlemen, for which every virtuous maid and matron in the land should crown him, with wreaths of laurels!" Coming to this point, Senator Howard, in his massive, Websterian style, said: "How did he kill him? He shot him! Where? In the back! "While he was down! Three times in the back! Shot him again and again, the young assassin! Yes, the young assassin ! (hissing it with tremendous force.) And this teas the act for which my brother would have every virtuous maid and matron in the land crown him with wreaths of laurels! " The effect was electric. It is regretted that no report can be had of this extremely ingenious and effective speech. Mr. Howard's rare faculty lay in convincing a jury. He had been prosecuting attorney and attor- ney general, as well as representative in Congress and senator, when this, his last jury argument, was delivered. He spoke with force and fervor, in gesture using mainly his right hand. There was a measured rhythm of his strong sentences that broke down all little points, and sent conviction directly to the hearts of the jury. In this trial he was aroused to his very best. With every element of sympathy against him, he prevented an acquittal. TWENTY-ONE EXILES OF PEACTICE. Book knowledge of law is like a chest of fine tools in the hands of an unskilled artisan — useful, but impractical, without experi- ence. Practice in law must be largely learned from contests in courts. It is the lawyer's trade; the more he has of good practice, the better he will know how to apply his learning. To have the keen tools, and the well learned trade, both at com- mand, may make him an accomplished workman. No arbitrary rules of study can be laid down, as few follow the whole field of law, and more adopt some specialty, and read accordingly. Prom 14 210 MODERN JURY TRIALS. observation, practice, reading, attendance at courts, in different States, and counsel with able attorneys, the following rules, with reasons, are given as aids and suggestions in general practice. The general rules of practice may be confined to twenty-one, and by careful attention to each, great advantage will be gained over a bap-hazard method of trials, without any fixed purpose in examina- tion of witnesses or argument to a jury. They may lead to win- ning five extra cases a year. Rums I. Study every case by itself thoroughly, and make a clear brief of both law and evidence. No musician will undertake to execute new and difficult music before a public audience without knowing what it is, and how it sounds; he will drill on every note until he masters each inflection. Actors rehearse before every play. Horses are scored, trained and practiced before every race. Boxers, wrestlers, racers, walkers and oarsmen never start off-hand. It has been told again and again, that the best trained athletes were the most likely to win ; why should lawyers be an exception ? A lawyer in court without a brief is like a captain at sea without his chart; a driver without a tried horse; a marksman with an unknown gun. But one with a well-mastered case is strong in every muscle; indeed, his victory is over half accomplished. Rule II. Know what each witness will swear to, separately, and together. It often happens that, in criminal cases and family quarrels, witnesses are separated after the manner of the well known trial of Susannah and the Elders, given in the Bible, where, on the first hearing, with witnesses all present, it was shown that Susannah was guilty, but when alt of the witnesses were excluded but the person testifying, two material points crossed each other : the one Elder swore to an offense under the olive tree, and the other to the same offense under the mulberry tree ! — each on opposite sides of the garden ! Susannah went free, while her accusers were executed. Show each witness the importance of candor ; of holding to the truth, and talking in a reasonable manner, with facts and circum- stances so woven together as to secure confidence. I remember an assault case, where an eye was put out with a poker, made from a shovel handle. In the doctor's statement of why he knew it was that way (instead of a fall on the zinc platform, as claimed by RULES OF PRACTICE. 211 defendant,), he showed that the soot in the wound from the poker appeared like butter cut with a rusty knife, which convinced him, and it convinced the jury, who gave heavy damages to the plaintiff . Rule III. Open the case fully before any evidence is in. "Whether the plaintiff or defendant, the claim should be known, and fastened in the minds of the jury, from the start. If for the plaintiff, a careless, half heedless statement is made, little import- ance will be attached to the suit until it opens itself, as it were, and, in such cases, juries often take an early prejudice that requires a great amount of evidence to remove. It is, therefore, very essen- tial to success that a terse, clear, and forcible opening be made, and one that is comprehensive and interesting to a jury. Especially is this true in criminal defenses, where, by an even start, the jury may carry a favorable impression of facts in the prisoner's favor, that will come with double weight if opened early in the trial. Experience shows that little is ever gained by a smothered defense. The People's side is, of course, well known. The defendant, if brought in fresh from the jail, comes under a cloud; suspicion is cast upon him by the mere force of circumstances, and many believe prisoners guilty simply because they are under arrest. It is of the utmost importance that not one word of evi- dence be heard in such cases before a full, earnest and candid open- ing is made for the defendant. Courts always permit it, and often encourage it. This style of opening has a double advantage of allowing counsel to tell the worst that is likely to be established against the defendant, with his answer thereto; creating an impres- sion that, even with such damaging circumstances, the prisoner is not guilty. It is not the duty of defending lawyers, however conscientious, to convict their clients; such is the province of a jury, and, if ever so guilty, the counsel for defense does his whole duty to present his client's case in a clear, convincing way, that, with the People's side equally well managed, The jury may reach a decision based on the law and evidence, fully, clearly and evenly explained. An exception to this general rule will be in cases where the defense is made wholly from the weakness of the plain- tiff's evidence, or from cross-examination. 212 MODERN JURY TRIALS. Rule IV. He forcible, firm, dignified and clear. A jury will not be long in reading between the lines, if counsel lacks force and earnestness of manner, and an interest in bis client. For days and months, both parties to the suit may have carried their legal trouble at home, and at work, like a leaden load, dreamed of it nights, and pondered over it hours together, until their beads would' ache with anxiety. To such, a tame or waver- ing presentation of their side of a suit is more than human nature can endure, and is sure to lose a client, if not the case on trial. A firm and dignified bearing will be impressive alike to court and jury, and add respect for your argument that never comes of " shilly-shally," and frivolous statements. The business of law- suits is to adjust differences, protect the helpless, enforce rights, and punish wrong-doers — it is serious business. But above all, says an old attorney, be cleak. Many jurors are ignorant of long words; they do not comprehend the real issue to be decided; some understand English imperfectly, others reason in a slow, round- about way, and reach conclusions after a long study and much meditation. Witnesses may be confused by a lack of clearness. It is a good plan to see some experienced juryman, early after a trial, for a few trials at least, and ask, how that case was presented. In nine out of ten cases he will say, you ought to have made this or that point a little plainer. The jury did not understand it fully. Rule V. Never be bluffed out of Court, but do not begin the bluff. Once in court stay in, and be an opponent, as Shakespeare well describes through Polonius : "Beware of entrance to a quarrel, but being in, bear it that the opposer may beware of thee !" Some men will fight all the better by being thrown down a pair of stairs; some take to the woods at the first show of battle. Clients, suitors, juries and spectators, like a man who can stand in an emergency. A sudden turn in a suit — a new point sprung upon the trial — an enemy from the flank — should draw out the resources of an advocate; and happy the man who is equal to such occasions. If equal, he is marked and remembered long afterwards ; but to secure this victory, one should be very guarded not to begin the assault, for the vanquished assaulter is always doubly defeated and humiliated. Great lawyers seldom stoop to petty advantages. RULES OF PRACTICE. 213 Rtjle VI. Brevity of facts, terseness of statements, tell best. Only one lawyer, since Rufus Choate, has succeeded by lengthy sentences, as an advocate before juries — Mr. Evarts — and his hap- piest efforts are given in less elaborate style than is his usual custom. Men like Col. Ingersoll, who cut up their statements in little stars, are followed with greater interest. In the jury-room, after the Court's charge, when twelve men con- tend for a verdict, will be often heard such little old sayings as, "The laborer is worthy of his hii-e" — "They don't make thieves out of that kind of men " — " It takes two to make a bargain '' — "Who began it?" — "It served him right" — "Put yourself in his place" — " Give him another chance " — " How many men would do differently ? " — " No man becomes suddenly vile." These are not forgotten. Rule VII. Never allow yourself to switch off — " Kill the squirrel!' 1 '' A trite old saying is, "Stick to your text." In a lawsuit many things happen to try one's patience; witty retorts, stinging replies, low personalities, may so engage counsel and jury as to smother and obscure /the case. Jurors take sides, and lawyers that grow personal, and enter into outside discussions, will lead a jury in the same direction. The real winner, after all, is one that, with single- ness of purpose, holds to his point, and hugs the issue to the end. Harper's Weekly gave an excellent story of a lawyer select- ing a clerk, that applies to this point admirably. The lawyer put a notice in an evening paper, saying he would pay a small stipend to an active office clerk; next morning his office was crowded with applicants — all bright, and many suitable. He bade them wait in a room till all should arrive, and then ranged them in a row and said he would tell a stor}', and note the comments of the boys, and judge from that whom he would engage. " A certain farmer," began the lawyer, " was troubled with a red squirrel, that got in through a hole in his barn, and stole his seed corn; he resolved to kill that squirrel at the first opportunity. Seeing him go in at the hole one noon, he took his shotgun and fired away; the first shot set the barn on fire." " Did the barn burn ? " said one of the boys. The lawyer, without answer, continued: " And seeing the barn 214 MODERN JURY TRIALS. on fire, the farmer seized a pail of water, and ran in to put it out. "Did he put it out?" said another. "As he passed inside, the door shut to, and the barn was soon in full flames. When the hired girl rushed out with more water — " "Did the hired girl burn up?" said another boy. The lawyer went on, without answer — " Then the old lady came out, and all was noise and confusion, and everybody was trying to put out the fire." " Did they all burn up ? " said another. The lawyer, hardly able to restrain his laughter, said: "There, there, that will do; you have all shown great interest in the story;" but, observing one little bright-eyed fellow in deep silence, he said, " Now, my little man, what have you to say ? " The little fellow blushed, grew uneasy, and stammered" out, "I want to know what became of that squirrel, that's what I want to know." "You will do," said the lawyer; "you are my man; you have not been switched off by a confusion and a barn's burning, and hired girls and water pails; you have kept your eye on the squirrel." A whole chapter is given in this story. It is packed full of excellent advice to beginners, with a few good hints to older coun- sel. In every suit there is, or should be, one squirrel to kill, and no more. Rule VIII. Remember ; juries do not know all of the facts. Lawyers appreciate the fact that cases come to the office in a vague, uncertain way. The half is not always told; that, even with several calls and explanations, it is difficult for a counsel to under- stand the facts of a law suit. Think, then, how much more it is to show these facts to the twelve new listeners, under the narrow rules of evidence, and to enable men unlearned in the law to reach a correct decision. Is it a wonder that juries blunder ? Is it not a wonder that they do so well? An old lawyer once said, after every defeat in court, " If you could ask the cause, the answer would be, ' Your men had the wrong side, or they didn't understand it.' " It may be the witnesses are confused, that they do not talk well in their statements. It is better always to win- a suit first in the office. Let each witness be carefully examined, and cross- examined, and re-examined, until they know the effect of a halting, unreasonable, untruthful story, and know how much stronger a, fact is accompanied by a circumstance. RULES OF PRACTICE. 215 Here is a suit over a broken leg in a wrestle. Six men swear it was a friendly wrestle, but tbe injured man says, "I'll tell you just how it happened. The most of the men were half drunk; it was late in the night; I had been sick; I didn't want to wrestle; he had tried me before; he is too strong and big for me; I shied away from him; then he came up again with his thumbs in his vest, and told me he never meant to hurt me; just then, as he got in reach, be grabbed me, so (illustrating), and jerked me, threw me against the billiard table, and broke my leg in two places; I never even clinched with him; then he bent down and said, almost crying, ' I didn't mean to hurt you, Billy; I'll make it all right — I'll pay all it costs you.' " He won, over the six witnesses; he had a fact and an inci- dent combined. A fact is always stronger and clearer, coupled with a picture of how it happened. Rule IX. Show no uneasiness in temporary defeat. Sometimes a point fails, a branch of a suit falls through. It may not be more than the regiment' of an army. It is no time to flinch or show color; it is a time to bring out mettle. At such times Mr. Lincoln is said to have coolly remarked: "We will give them that point; I reckon they were right there." Proceed with as much coolness as though the value of the loss~were less than a shilling. But use the other forces, and see that the whole bottom of the case never falls through a small opening. Good lawyers say that cases they were sure of winning, are often lost, and others that seemed lost in the middle of a trial, turn out splendidly in the end. It is well to have a smooth, unbroken line of evidence, but a sharp, stinging defeat, on one point, and a pithy, incisive argument on the balance of a suit, may make a lasting victory. New trials, frequent reversals and discouraging circumstances, may -end in sig- nal success. A dry-goods runner was injured in a railroad accident, and sued the company (Grand Trunk Railway), and won a $15,000 ver- dict. A new trial was granted, and he gained $26,000. A change of venue and one more trial brought him $45,000 damages, which last judgment- was affirmed. Nothing could be clearer than that impediments to a trial, or set-backs in enforcing a claim, are con- sidered by juries in the final balance arrived at. So it is true, when one contends against odds, juries remember it, and as sure as any mean little advantage is taken in a trial, so sure the advantage 216 MODERN JURY TRIALS. taker is the loser in the long run, for juries are human, and human nature likes fair play in litigation. Rule X Drop a bad witness — Gross-examine only to gain by it. To cross-examine a sharp witness is to strengthen his testimony. Frank Moulton, in the Beecher trial, was always ahead of his examiners. To rejseat and repeat often, is to weld and rivet with the jury what has been said, as most witnesses would sooner vary the truth than own to a falsehood. It is only on cases of doubtful identity that cross-examination tells so completely, and then it is dangerous ground. To badger a bad witness, that, like a race horse, gains by every break, is no less risky than playing with hot irons where some one will be burned. It is better to seem not to need him, and allow it to go half noticed, than intensify a weak point by repeating it on the witness stand. An exception to the rule is, where in a murder on board a steamer, a positive witness knew just how many officers were on board, w'io they were, and where they were; but on placing each at a certain point, he was confronted by the question, " Who was at the helm ?" Which so staggered him that he broke down and admitted his blunder. Another case of identification is where a man called with a forged bill, and took in payment a check for a large sum of money. On direct examination he was sure he knew the prisoner to be the guilty party; but being wound up gradually by the dark or light room, whether he stayed long, or was spoken to, whether he had seen the prisoner before, and finally, if he was as sure as though he actually knew him; witness faltered, admitted he possibly might be mistaken; that he had some doubt, and at last lacked fully enough of certainty to make a reasonable doubt, and release the respondent. This cross-examination should be used with caution, discretion and judgment. Rule XI. Make your evidence reach the real heart of the case. Before every trial witnesses should be examined, and never sworn without cause, and held to a strict rule of evidence, until, with truth and candor, they can bring their story to the gist of the action. More witnesses swear around a point, and omit vital and essential elements, than come squarely up to the mark, and make their meaning fully known. RULES OF PRACTICE. 217 Sometimes a case turns on the intent, again on the cause, and often on who was the offender. To know what the core of the case is, and hold it in sight, by the proof is the part of a wise coun- selor. Rule XII. " T7ie main point in law is good evidence," Is an old adage, and one not to be forgotten. Impress client and witnesses with the fact that a lawyer should know the good and bad side both, and be prepared to meet either; as scouts are sent out before a battle, so witnesses should be tested before trials. Show them the real issue, and hold them hard on the line of direct- ness. For after all, " Man is a mystery that no other man can solve; we are all spirits in prison, making signals that few can understand." Rule XIIL Avoid frivolous objections — Save your forces for the main chance. Many a lawyer, to be witty or show off, will talk over and work over his ground in small matters, that weary the court, and become stale when needed in the final argument. An old lawyer (we quote him often), once said, "The worst thing that can happen to a young man is to think he is smart." Such men grow tricky, captious, and excessively anxious to show off on trials. Juries are sure to count the case weak that requires such treatment. It is a mark of vanity to trifle away time on mat- ters that reach only to the husk or chaff of a case, and obscure the kernel by such tactics. Mr. Lincoln was noted for giving away small points. " We may be wrong on that, your honor," he would say; or "I think we were wrong there, but it is not the gist of the matter anyway." This fair play and liberality always told with a jury, and when he finally said, " Now, this much we may ask, and when I shall state it, it will be a reasonable demand." Then, with all the husk trimmed off, he would state, in a candid way, such a reasonable request that the justice of his demand stood alone and relieved of everything, but a fair, just judgment. Rule XIV. Speak clearly, carefully and candidly. Judge Cochrane was one of the most patient and charitable men that ever graced a bench. He would listen a full hour to a dry, 218 MODERN JURY TRIALS. tedious plea without turning in his chair. But he sometimes remarked aside that he knew of lawyers who could talk a full hour and not make one single point. He believed many attorneys talked their cases to death. "While a careful explanation is a good argument, a long, drawn out talk, without a definite pur- pose, is likely to lead to the belief that the lawyer is talking to per- suade men against their better judgment, and this is sure to react on the speaker. Jurors respect and admire candor, and occasionally relish wit, as it serves to rest and relax their minds for better efforts; but lev- ity continued at any length, is like a variety show, soon forgotten. The speeches, plays, songs and sayings that last, and ring in the ears long after they are uttered — that move the judgment and mold the actions of men, have a sacredness, often reaching to the fireside, the home and the tender relations of life. Courts and juries should be impressed with the single thought that you are not inviting them to either a quarrel or a play, but to determine some right, and redress some wrong that you failed to settle otherwise. Aaron Burr's great rule was: Be terse. The art of selection, he said, was the greatest human faculty. His arguments were made in half hours, never longer. Rule XV. Drop all examinations and arguments in the right place. When a witness has reached a clear point and a smile follows, per force, leave the point — let it stand like a rock on the mountain side, uncovered and alone. To stop short will attract attention and rivet the mind to its importance. All men magnify discoveries, and to leave it as though a keen sighted man would just see it, and no more, gives him credit for discernment, and relieves his mind of the burden and rubbish that he dislikes to carry. It is only here and there, like mile-posts, that salient points are fixed in the minds of a jury, and each should stand alone in its strength and clearness. It is the pith of a story to end well. The cream of a joke is in the little things suggested, half discovered, that lead to new-born pleasure. A surprise in evidence should end where the story ends, in a climax, that rings like a whip cracker. The same may be said of argument. There is nothing like knowing when to stop. I remember, in a trial where a son and father were parties, at the close of a pathetic paragraph, counsel said: "This should not be. RULES OF PRACTICE. 219 Nearing, as we are, the great holidays when children gather around the fireside and tell over the stories of the past, eat and drink and be merry, in the sweet memory of the long ago; when they talk of the absent, and the loved and lost, this should not be — " And sud- denly the father rose up, and with an emotion that none could mis- take, he pointed to the judge and said: "Tell the jury to give him all he asks. Stop, say no more! " and counsel, though only a quar- ter through, was shrewd enough to stop at a winning point. Rule XVI. Let judge and jury know you mean what you say. From the date of receiving a case it should grow on the mind continually. By frequent reviews before the trial, by making additions to briefs, and by earnest study, it should be a case for a near friend, which to lose will cause you pain. Let it be as though you might never have another case, and on this one hung all your reputation as an attorney for life. So charge yourself with it that it will come from every muscle, every gesture, every word, as deeply in earnest. There is no power in persuasion like where one believes what he says, where it breaks down all opposition, and cuts to the hearts of hearers like the language of a Moody or a Luther. Great men have been earnest men. Great orators have been moved by their own words and arguments, till they filled their hearers with the fire of enthusiasm. The earnest words of an old Indian chief will better express this thought. Before entering a battle he would call his braves around him, and smiting his brawny hand upon his manly breast, he would say: "I know that I shall win this battle; I feel that I shall win this battle; It is burning in my body, that I shall win this battle ! " Rule XVII. Consider your adversary powerf id, and be ready for him. It was a rule of Napoleon never to underrate an enemy. In court trials the enemy is usually, and almost always, stronger than we expect. Hearing one side, and that imperfectly, and generally well colored, the attorney is often surprised to find he has much to con- tend with before unknown, and if he has gone to trial weak in law or evidence, he may find too late, that his enemy is all powerful and cunning, and he may fight against odds, when he looked for an easy victory. An easy victory in law is not common; usually both sides have some rights. Each party is fortified, or he would have 220 MODERN JURY TRIALS. surrendered at discretion. It will not do to depend on a weak opponent to win a suit; he may come at the last moment, sup- ported by able counsel; he may have practiced until, like David with his sling, he can hit his adversary in an unarmed place. There is only one way to be tolerably sure of winning, and that is to be always ready, always prepared, and always willing to provide the best weapons of warfare. Rule XVIII. Suits turn on evidence of facts, with the application of the law. To make a legal defense, or a lawful demand, the evidence must be within the rules of law and the statute of limitations. An oral agreement to sell real property or assume the debt of another is of course void, and the first consideration will be, is the demand a legal one ? and second, can it be sustained by evidence ? It is not only humiliating, but a source of actual loss, in business, to bring a stale suit and find it barred by the statute, or a good cause and lack evidence. .So that before going to court, every case should be tried in the attorney's office; tried with the evidence and law at hand, and tried with a full knowledge of the facts, but, more than all, in starting a suit, to use the right parties, to bring the right action, is vital to the life of the litigation, and no rule of practice should be more carefully heeded than this. Be sure you are right ! If upon the wrong road, the further you go the more time is lost, and the further you are from the object to be attained. In a certain suit, brought within a few days, of " outlawing," the plaintiff neglected an important point in joining the proper defend- ants, he submitted to a nonsuit. This barred the claim, as the adjourned day placed it over six years past due, while the nonsuit was as though no proceedings had been commenced. The true temper of the steel depends alike on the degree of heat and the cor- rect time to cool the metal; the law and the facts must be, well united to make a judgment possible. Rule XIX Twenty questions of fact will arise to one of law, in court trials. It is seldom that cases are lost on technicalities, more frequently on defective proof of facts. There are so many means of negli- gence, so many releases, or receipts and discharges, that lawyers are often defeated by some paper carelessly signed, without con- sulting counsel. In view of these facts suitors should be cautioned RULES OP PRACTICE. 221 early in the case to leave all settlements entirely with their coun- sel, and never settle without advice. There is nothing more annoy- ing to an attorney than an error that takes his case out of court at the wrong time, without securing the fruits of his labor; and to prevent this he should instruct his client to keep faith with him and reveal all matters in confidence, good or bad, and conceal nothing in the case essential to be known. The more thoroughly the facts are prepared and studied, the more certain will be the result. If a case fail by a law point that no one can foresee or prevent, counsel should never be blamed for it. But a failure on a point of fact that could be foreseen is an act not often forgiven. Rule XX. See that you do your work well. It brings business. To give one rule for increasing business, embodied in two words, I would say: Be thorough. A well made deed, abstract or paper, will bring other like work to an office. A well tried case, fully and forcibly put, will bring other suits. " That is the way," said a listener, " that I would like my suit tried if I had one." He is a worker, is a recommend for a lawyer; he makes his client's case his own, is better; he wins his case, is still better I But no one can win cases without work. Great efforts are made after long study. Judge Comstock worked seven weeks in the Tweed case, citing over five hundred authorities, and when he reached the end of his brief, saying, to the Court of Appeals, " And from all these cases but one conclusion can be reached, and that is, that every man charged with an offense against the law is entitled by the constitution to a fair and impartial trial by jury, for each offense, to the right of challenge, the right of counsel, and to be confronted by witnesses in every case, but in this case it was sought to annul these rules, and by conviction on one offense, multiply it by fifty -five! and imprison the respondent beyond the term of his natural life; and having suffered more than one sentence already, we conclude he has paid the penalty, he has suffered long and patiently, and should be released and set free! " The court sustained this view, but other suits followed. Rule XXI. Sold on hard to the strong points of law and fact. It is related of Mr. Lincoln that he seemed utterly regardless of little points, holding to the core of his case, and winning by his lib- 222 MODERN JURY TRIALS. erality and fairness. In the trial of disputed bills he -would waive interest or forego trifles, from time to time, until the close, when he would bend to his work of winning the main issue with a deter- mination seldom witnessed, and having won the jury by good humor, he would fasten their judgment on the sum he demanded. The higher one rises at the bar, the less is known of little, quib- bling demands and defenses. In the " upper stories " men battle for principles and property with manly weapons, as will be seen by the efforts of Stanley Matthews, Gen. Butler, Arnold, Hendricks, Carpenter and Judge Chipman, and many others referred to throughout this volume. If there is one maxim more to be remembered than others, in practice, it is, " Be Thorough." Is it a demand to collect ? Get it admitted; get it secured; never higgle over trifles; watch the main chance. Is it a compromise between neighbors ? reach a just settlement and insist upon it. Is it a breach of contract? make whole the injured party. Is it a family difference? end the litiga- tion. Is it the liberty of a man in chains ? show him to the jury in his noblest manhood — surround him in court by his friends and neighbors; tell what is good of him; assume not that he is wholly innocent, but that he may not have been proven guilty. The sacred calling of a lawyer imposes earnestness of manner, study and ingenuity, tact and energy, and a heart full of love and loyalty for right, and with them every promise should be kept as inviolate as if made under a solemn oath. 'Tis said, "The accusing spirit that flew up to Heaven's chancery with the first oath, blushed as he gave it in, and the recording angel, as he wrote it down, dropped a tear upon the word, and blotted it out forever !" IDEAL CASES. 223 IDEAL CASES. The rosy life of a lawyer is all in imagination. "What appears to be ease and comfort is anxiety and dread of defeat. The very uncertainty of every suit makes all good lawyers anxious. No one can predict with certainty what twelve men may decide, and when young men seek this field as an easy pursuit, they fail to comprehend its true business. It is not a lucky profession, as some may hope or dream, while in college. The luck of law is the work and tact of the attorney; or the right side he happens to have in court. There are five hun- dred vexatious cases to one ideal jury trial. And yet men go on believing, year after year, that once admitted, the first client that opens the door will be the bearer of a brilliant effort that shall clear some helpless, pitiful soul, before a jury and an applauding public, who will ever after come with more and more just like it, and make their law practice a perfect paradise. True, a man may have an extra good case, once in a half dozen years, sometimes once in a score or more of years, and some may never reach a golden opportunity — very many never do. The romance of law is fast disappearing ; juries are not very much deceived by heated arguments, except in rare instances. The public press, and public opinion, have much to do with jury ver- dicts. Here and there may be found a peculiar fraud or murder case that awakens sympathy, but, like the Vanderpool cases in Michigan ; the Beecher case and the McFarland trial in New York, and Mary Harris at Washington, their verdict is well known long before the jury retires. It is in the air ; no one is surprised at dis- agreements when the public have already taken separate sides, and intelligent sentiment stands divided. Luck, without work, will not be attained ; honest work, well done, will in time gain place for a limited number, but the longer we live, the older the country grows, the more work is required in the legal profession Men are better educated, better skilled, and are making better time, just as trained trotting horses are improved by practice. We are learning that the loorld moves in all its varied departments — social, moral and intellectual. The giants in the court-room to-day are not the witty jokers, the hair-splitters or the tricksters or attorney-generals of crime. The business of the law has passed all such artifices. It is serious, 224 MODERN JURY TRIALS. solid business. It means the making of wills (and breaking them), the management of estates, the drawing of partnership and corpor- ation contracts, the drafting of charters, the perfection of titles, the leasing and conveyance of lands, and occasionally a contested case, in all of the courts, from lowest to highest. Medium oppor- tunities are many ; ideal opportunities are rare. It is the well- made plea, the well drawn paper, the careful counselor, that keeps his client free of suits, that is marching in the front of legal busi- ness, year by year. The widow's son is not claiming our protection. The business man is turning to the bar for safety and assistance. A change has come over the spirit and practice of the law equal to any advance in either of the sciences. Books have accumulated until to know their titles is beyond the ordinary memory of man. The time has come when the student of law is a student on business principles, when his word must be sacred, when his advice must be reliable, when his income will depend on his thoroughness in detail and a knowledge of his own times, and not on the worn-out eloquence of other ages repeated to juries. Skill, science and adaptation are the sterling qualities to be cultivated. Ideal cases may be created from common practice with rare application, skill and acumen, so that the art of the advocate will transform a common case to an ideal trial — something nearer per- fection than ordinary practice. The beauty of the work is in the construction of the building, not in the material, the location or even the plan alone, but the uniform symmetry of all its plans and proportions, skillfully executed. WINNING- CASES. Cases are seldom won by accident — more frequently by hard work. The midnight oil, the well made brief, the candid and even tempered witnesses, the fairness of the attorney, carrying convic- tion to the minds of a 'jury, the art of putting things in their strongest light, all tell with a jury. A few instances may be instructive. Walker, a builder, sued for overwork done on a dwelling. The defendant showed receipts for nearly enough to balance her bill, WINNING CASES. 225 and proved by strong oral evidence (by members of her family), that everything had been paid for as contracted, but not all of the work done according to the agreement. A builder was called to examine the work and make careful measurement. The result was: a house six inches too low, windows on weights instead of French windows on hinges, and many material defects of workmanship. The claim was $300. Item by item was carefully scrutinized ; a chimney too short — a cornice defective — all shown by builders and experts. But the climax was reached when the defendant herself, an illiterate woman, was called to testify. She knew nothing of books or architecture or the " pictures he made on paper," but she was sure plaintiff had made the house entirely contrary to his bar- gain, for the windows should reach clear to the floor, for she told Mr. Walker so, and told how, if they had a death in the family and wanted to take a coffin out on the porch, the French windows would open like a door and let it out without cramping around in a narrow hall and bruising the edges of the coffin all up ! This settled all with the jury, who said, " No cause of action," and the woman went away happy ! Governor Wisner was a witty man, and had a rare way of win- ning cases. He was retained for The People in an arson case at Pontiac, where the fire was started in a haystack. Nothing was traced of the guilty party save tracks in the snow, which fitted well to the defendant's- heavy stogies. A great effort was made to show that the fire was from spontaneous combustion — the act of the Almighty — an.d could not defeat the insurance. Gov. Wisner said : " That all may be, gentlemen. It may be the act of the Almighty, but I never knew of His setting fire to a haystack and then walking three tiroes around it with a pair of stogy boots on, nailed in the heels /" He won his case. THE BIBLE IN COT7ET. The governor was great with Bible quotations; he would use them in common assumpsit trials. One day, in a suit for wages, he grew very much excited, and said, " Thai's the doctrine ; that's the pure, biblical doctrine, gentlemen ! If a man will dance, he must pay the fiddler /" "Where will I find that?" said the oppo- site counsel. "What chapter in the Bible," added the judge, "do you refer to, Mr. Wisner?" The governor drew himself up with great dignity, and said: " Is it possible, your honor; is it possible! that you have been a judge for twenty years, and my brother a lawyer thirty years, and both in such utter ignorance of an old, familiar scripture quotation like that f " He won again. 15 226 MODERN JURY TRIALS. TWO WITNESSES TO ONB. A suit was brought to recover for a quantity of apples, shipped from Davenport to Detroit. The plaintiff alone swore to his claim, and rested. Two witnesses appeared for the defense, and claimed the condition of the goods was none the best. The case looked doubtful, when the plaintiff's attorney told the following story, which dissolved the court, jury and spectators in a hearty laugh, and the plaintiff took judgment for the full value of his apples. The story was of a Hebrew merchant in New York, who dealt in furniture. On his way home, a down-town clerk stopped in front of a store door, and looked over a bedroom set worth eighty dollars, and remarked to the dealer that he admired the patterns and the curl of the walnut very much, and asked if eighty dollars was the lowest figure, which he found was the case. The clerk went home and mentioned the fact to his wife. On his return home at night, he found the bedroom set had been put up in his house in his absence. His wife, supposing it was a surprise for her, seemed delighted. But he denied buying it. It occurred to him, however, that he had better consult a lawyer, and learn his legal rights in the mat- ter. He remembered a newly admitted friend in a prominent office, and stated his case to him fully. The lawyer said: " Tou keep the goods, and leave, the rest to me." Not long after a summons was served. This he took to his lit- tle lawyer, and asked what else was to be done, for it looked serious. " O, nothing," said the attorney; "leave it all to me; I'll look out for him." "But don't you want witnesses ?" "No; leave that to me." Trial day came and passed, and the clerk grew anxious. He called to hear the result of the suit, and expecting, of course, he was beaten. " Plow did it come out ? " he inquired of the young Blackstone. "All right," said his counsel; "the furniture is yours." " But what have I to pay for it ? " "Nothing!" "How can that be?" " O, easy enough. You see, he swore you bought the goods. I didn't say anything; that was all right enough. He had no wit- nesses but himself. I admitted the buying; but I put on two wit- SELECTING A JURY. 227 nesses who swore they saw the whole transaction, and knew you paid for the goods! Of course I won. How can one man swear against two, anyway ? " SELECTING A JURY. To exclude two jurymen, without cause, in civil suits, and thirty in murder cases and high crimes, is a work of more importance than any one act of the trial — not even excepting the argument. Men are all human. They carry their prejudices to church, to mill and to court, as much as they carry their arms and hands with them. Some are hardened hy unbelief in human nature; some are crippled, disordered and impatient; some are lifeless, and with all the milk of human, kindness lacking in their nature; some are noble, generous, humane and open-hearted; some with reason, others are set and determined. Lawyers should prefer reasonable, merciful, enjoyable, liberal, intelligent jurymen, absolutely free from bias or distrust. It is generally known that ex-policemen, ex-sheriffs and ex-justices, with other like ex-officials, have imbibed a deep-seated prejudice for the plaintiffs whom they have served so long; while laboring men prefer their kind, and each nationality will in some degree stand together. So in criminal defenses and civil suits, these points should be always remembered. But, presuming the justices, policemen, sheriffs and deputies are excluded, and only the honest twelve remain, who of these are to be chosen ? Why, look at them ! Mark their candor, age, humor, intelligence, social standing, occupation, and let your eyes choose the most friendly, liberal and noble faces — young or old, but bet- ter young than old — -better warm than cold faces; better builders than salesmen, better farmers than inventors, better good, liberal dealers than all. Avoid doctors, lawyers and pettifoggers. There is a little man, deformed, narrow, selfish, opinionated. Yonder is a captious, caustic, witty man, of stale jokes and street-corner arguments; and further on is a hard man, grim-faced and cold, grey look, white blood and glassy eyes. Rule them all off, if pos- sible. The world has used them ill. They will spread their misery for company sake. If you have been wise, you have looked ahead, read your directory, and now know the occupation of each. All 228 MODERN JURY TRIALS. ! this is easily done. Jurymen are usually well-known men, distin- guished for wit, humor, wealth or business dealings. Chronic hangers-on, unless clear-headed, can easily be excluded. I have known a sailor on a jury to acquit a sailor charged with crime. He was clear on the case. A wrestler once turned a suit for the plaintiff by showing a jury how it was done; he was one of them. In a robbery case, defendant gave evidence to show that he won the money at drawpoher. A keen juryman, who understood the game, plied complainant with questions, and drew out that he liked poker — went to defendant's room and played, and remarked, " I am beaten at my own game," and although the amount won was over eight hundred dollars in bills, a gold watch, revolver and a twenty- dollar gold piece, the poker-playing juryman convinced the rest that the exciting game, and not the offense charged, was a clear solution of the so-called robbery. Many a builder or expert has changed the whole twelve by knowing the case. Too much could not be said on a wise selection of jurors. CROSS-EXAMINATION". The object of cross-examination is three-fold. First, to elicit more truth; second, to contradict and confuse; third, to lay a foun- dation for impeachment. If a witness has concealed a part of the truth, material to your case, and looks like one who would be fair, it is better to pursue the inquiry moderately at first, and if the wit- ness quibbles, the more rapidly, and if he angers, still more rap- idly, as one in anger will speak out openly, but usually he will tell more by kindness. To contradict a witness by his own mixed statements, a most rigid and rapid examination is required, usually asking for an answer the opposite of what you seem to desire, as the witness will invariably oppose the theory of the examiner; combativeness comes out on the witness stand. One who answers willingly, and one who answers fairly and candidly, had better both be left alone. One who higgles, gets excited and petulant has somethinghe wants to shut out, will bear urging. " Do you swear on your oath that SELECTING A JURY. 229 this is the real language used?" will generally bring out the fact; but kindness, rather than rashness, is to be practiced. Suppose the witness to be old — then by all means be courteous. Suppose it be a lady, observe the same rule. Suppose it to be a timid boy or girl — some juryman has such a child, and if you offend he is offended ; besides " children and fools tell the truth," and you are looking for truth. Nature is the child's instructor. It is not likely that anyone will prolong an examination far beyond favorable answers, and still to leave off at the sharp point is always essential. Quit with a victory, is the best of all rules. Juries look for sharpness, but admire fairness. They like candor, and respect shrewdness. Their sympathy is strong for children and aged witnesses. See that you do not offend good taste and a high sense of honor and fair play. To impeach a witness a good foundation must be laid in time, as " Did you not (at a time and place named) tell William Allen that you owed this claim ? Did you not say to Alfred Hall, on Bond street, July 4th, 1880, that you knew the defendant was not guilty; that he did not, but you knew who did do the shooting ?" " Did you tell Albert Miller, on the eighteenth day of June, in his store on Crescent street, that there was a fraud in this transaction which could all be explained ?" " Have you not openly asserted yourself as an enemy to defendant during this trial, and expressed a hope that he would be defeated ?" " Did you not offer to shade your testimony in this case for money ? " Some strong, leading and exasperating questions may be asked of one you know can be impeached. Nothing should be handled with gloves where one is openly your enemy. Strike quick; hit hard, with weapons that sting, and juries will see that you mean what you say. But an attack on a witness without foundation is dan- gerous. And finally, more cases are lost by cross-examination than gained by it; so that in general one must depend upon his own evidence, and not upon an often mistaken notion that men, having stretched the truth to gain a point, will turn and contradict it, to please a law- yer. Witnesses who will tell a story without oath will swear to it, and adhere to it, and intensify it, by repeating it through a long cross-examination. This was never more clearly shown than in the exhaustive examination of Frank Moulton and Mr. Beecher, in the tedious Beecher-Tilton suit, at Brooklyn, in which the ablest cross- examiners failed to impeach either witness. 230 MODERN JURY TRIALS. THE LUCK OF LAW. To the student at law, and to many men outside of the profes- sion, an ideal lawyer is a great orator. In the days of Webster and Choate, or the earlier ages of history, such a character was worshiped almost as a hero. But learning and the press, the power of print and the greater development of mankind, as a mass, have very much weakened the influence of eloquence. Within the last dozen years it has become more clearly apparent that evidence, and not eloquence, prevails; and he that has weighed most carefully the history of cases, for the last half century, will bear witness, that more than one case is decided by the overpower- ing sentiment of communities outside of either eloquence or evi- dence. To be a little more explicit, the science of success in the depart- ment of law is rapidly changing to business principles. An active, energetic, thorough and determined lawyer will succeed in his busi- ness, very largely in proportion to the capital he employs and the energy he expends in his calling. The term capital, in law practice, relates as much to character and cultivated judgment of men and things as to any other degree of legal attainment. Indeed, it is the business lawyer, with a com- mon sense view of general subjects, and not the stickler on trifles, that makes his mark in the courts and in the world. He who will trust cases to men, should study the character he confides in. In the majority of trials, twenty times as many questions of fact as of law will arise, and he that is most thorough in fact will be most likely to win. This, then, is the secret of the whole matter. Earnest attention to details, thorough arrangement of evidence, coolness and absence of anger and excitement, brevity and clearness of argument, honesty and fairness of statement, firmness and deci- sion of judgment, a reliance on reason, rather than the biased opinion of your over-zealous client, and a deliberate determination to do right. Eloquence should never be forgotten; there are subjects in them- selves eloquent. It is not in words, but in the man, and of the man and from the man, and in the occasion, that eloquence is born. It is never premeditated, but born of the theme and in the counsel. But oratory is studied, mastered and held in readiness for rare occasions. THE LUCK OF LAW. 231 As nothing should be done to discourage eloquent appeals, so nothing need be said to imbue attorneys with an over-value of, or reliance upon it to win in a lawsuit. The best advocates and ora- tors are well stocked with apt quotations in prose and verse, and add force to their reasons by happy thoughts of other men, ingeni- ously interwoven in argument. On great occasions and in great cases, the subject itself may furnish all the eloquence demanded. In a celebrated ease in Indiana, a statesman was pitted against a country attorney,- whom all expected to be beaten, if not annihil- ated. The case proceeded. The country boy was quiet, but cleari and determined. He made his modest opening, and waited for the thunder of the orator ; but it was like a lion tamed by kind usage; the strength of the statesman lacked a forum for display. He forced his plea upon the jury and they shed tears. He urged his client's cause in all general ways, and just enough to heat his little opponent to a speaking point. The country boy stood up, stam- mered (purposely, I have since thought) and stumbled a little, but clearing his boat from the shore, he launched off and out— out smoothly — through the long conflicting proof, picking up every point, commenting on it in the keenest, closest style, building such a fire of the little sticks and floodwood gathered by the way that by the light of a blazing sun at mid-day, none could see the mur- derer and his victim plainer than by the boy's description of the tragic scene. The tragedy was recast, the fire and fervor of a boy's warm heart was blazing in every character, speaking from his eyes and hands and face. The jury forgot the statesman, forgot the defense, forgot all but the ghastly deed, held up in such an artful, unerring, vivid manner, that a shudder ran round and round the court-room, by every new discovery. He sank exhausted, and con- viction followed. It was a flash of lightning from a cloudless sky — but the boy had remembered his case ; had dreamed it out, thought it over, studied it, kept his proof like a polished knife, and pushed it to the hearts of the jury unawares. It was another David with his little sling and five smooth stones, striking where no armor had been made. And this is the luck of law. The luck is work ; the luck is tact; the luck is ingenuity ; the luck is in bringing law to a court with wisdom, discretion, power and logic, tact and genius, well com- bined/ and bringing facts to a jury in the clearest, plainest simplest possible light, to convince and decide for your client's cause. It will not do to guess ; .he must work ; I repeat it, he must work to win / ' 232 MODERN JURY TRIALS. BEACHING A JUKY. The peculiar nature of many jury cases demands a diversity of talent. The words that win with one man may shoot clear over another's head, but most men relish quaint, short stories, little illustrations — things that impress the thought and rivet the atten- tion, plow and prepare the ground, and render the mind mellow and attentive. It is not the voice -of a speaker, nor his grace and manner, nor his eloquence nor greatness, but his sagacity — the things aptly put, the terse, crisp sayings, that cut in and clinch, that turn a jury. A German client once said : "I likes to hear dot man ; Oh ! he's such a purty talker ; but I don't know what he say !" No worse censure of a speech could be mentioned. Dull ■ ness is even better, if remembered. An eminent advocate talks to one juror at a time, and never more than one ; talks on and on, until there is a real spring of emotion or reason or humor, and he has reached it, and passing gently to one who seems to listen well, he finally, one by one, has personally addressed the whole twelve, and won the twelve. Successful advocates seldom trifle with jurors or wrangle in their presence. They yield an unimportant point, and pass to deeper subjects, never covering the ear by too much husk. Mr. Charles O'Connor is of this class ; Mr. Evarts not quite so clear ; Mr. Beach, very eloquent, often grows rhetorical ; Senator Voorhees always so ; Col. Ingersoll is terse, pointed, apt and humorous — sometimes pathetic ; Mr. Lincoln was quaint and used all the catch words, and common words of farmers and tradesmen, to whom he spoke. He constantly illustrated his thoughts by little incidents. Take out the stories, and his arguments would fail. It was the noble nature of a noble man — -one they knew believed in his case ; one they relied upon implicitly ; one who spoke as well for a poor car-driver as a railroad king. His plan never changed. It was universal. But place, as well as method, must govern an advocate ; the picture in Harper's of a New York dandy, on his first entrance to Leadville, with silk hat, kid gloves, and soft Morocco leather hand- case, would be a poor picture of a frontier lawyer before a Texas or Dakota jury. Nothing could be surer of defeat than a case tried by such an advocate. BEACHING A JURY. 233 The accomplished scholar is too fond of saying, " The jury- system is a farce — a humbug — a relic of the past." It is the abuse of the system, and not the law, that gives it a bad name. From careful observation in a score or more central States, jury trials are generally fair representations of public sentiment. Who can expect twelve men to agree on what the public are equally divided upon, to begin with ? Shall jurors be censured for true independence? or shall they be blocks and stones,' and never vary in opinions ? I fear that too many adverse criticisms made by lit- tle thinkers on juries are in a narrow groove. The principle, as a principle, is right in all matters of personal liberty, or personal injury, but may be imperfect in commercial accounts. In cases of liberty, twelve men should unite or no conviction. And even if it should be that extra talent and eloquence are demanded, these special cases will come nearer the middle, or the end, of a lawyer's life. Groat cases command great men. Young lawyers can hardly hope to step to the highest round of the ladder from the lowest. Time, patience, long-continued study and prac- tice will bring their reward, but not one lawyer in every hundred will reach the dream of greatness that his early fancy has created. In all this there is still hope for the diligent. By accident, one may oe drawn into a legal duel unawares. He may settle in a new State, beyond the reach of counsel, where his effort is the sole dependence of an unfortunate client; he may be called suddenly to duty. The confusion of a great event will tax him to his utmost, and for this he should always be ready. The forms of pleading, rules of practice and means of information, and even the hints and examples from great men's experiences, will be an anchor for a storm, if demanded. To make this anchor, and fix these rules and maxims, speeches and sentiments well in the mind, is the work of patient, painstaking study; but to make the study interesting some of the ideal practice herein described may be useful and inspiring. No one can read an eloquent argument and be unmoved by it. The mind grows by what it feeds on. The sympathies expand, the heart warms, by kindling its tenderest impulses; the judgment is stronger by feeling that another thinks as we do; the picture of a possibility, the straining and lofty aspirations of the mind are like a new discovery, and the world grows broader to a well-learned man. Every new book digested is a new friend made. If the acquaint- ance extends to the greatest men of our times, in the greatest events of court practice, so much the better. Aiming at the high- est work will raise us over the lowest. Musicians listen long, half 234 MODERN JURY TRIALS. entranced, at the melody of sweet sounds; painters admire the shading of a landscape, and builders examine with care the models of architects. While lawyers, too often, start cases at random and rely on genius to produce what by labor and study would be ren- dered almost certain. THE OTHER SIDE. In a trial at court a great deal of the unknown is developed. Careful preparation will do much to avoid surprise. But something will always remain shaded, till the light of evidence shines in and reflects the true colors of a too often unhappy disclosure. The ingenious thing to do is to induce your witnesses to state, in candor, what they generally avoid beforehand. In criminal defenses, the worst is seldom known before trial, and hence must be met on the instant, and may be managed indifferently well. The skill of counsel is put to its severest test to meet and master reverses, surprises and new features. As the mind grows and strengthens on familiar subjects, so new and unlooked for events are like enemies in ambush — a dread to even the oldest veterans. Too little attention is paid to the other side — the dark side. To excuse the wrong we seek to redress, the evil to be undone, we must study its magnitude and meet it with reasons. Lawyers of greatest fame are greatest in foresight. It is he who can tell us of the disease, and its remedy, that makes the good physician. Law suits are not debates, that may be continued by consent indefinitely. They are stern contests of right, and end too often at a single hearing. Well may Cicero say, " How humiliating it must be to an attorney, in the midst of a trial, to find he knows so little of his case that his client is hindered and not helped by his ser- vices." It must be painful to meet abrupt reverses, to trust a broken reed, to attempt impeachment and fail, to attack character and lose, to sue in assault and be forced to pay expenses of a trial for lack of evidence, to study hard and long and only know half of his client's case. Men who keep back part of the truth for the sake of over-persuading their counsel that they are in the right, are justly punished if defeated. v METHOD. 235 Nothing helps so much as a glance at the ranks of the enemy's lines, a measure of his forces, a skirmish just long enough to draw his fire, and then a volley to match it. To this end, if no other, wit- nesses should be cautioned, entreated, urged, forced to tell the whole truth openly, unreservedly to their counsel, for and against their interest, that the very worst may be known and provided for. Probably there never was a lawsuit lost where all of the facts were known to counsel. For with evidence and law against them, settlements could be reached, compromises arranged and costs avoided. When counsel and clients learn to look clear through their cases — ■ good and bad, light side and dark side, their side and the other side, then they will learn the science of success in jury trials. The books are full of law, but where can we find the facts if stubborn witnesses or careless suitors will insist upon telling only the bright side of their story, leaving the darkness as a rifle pit for the enemy's weapons. Of the best tried cases for the past twenty years, the Michigan Central Conspiracy furnishes a lasting example of industry, tact and actual ingenuity rewarded. METHOD. Every man should have a method of his own, and cling to it like a trade mark. To be shifting and uncertain in purposes and plans is almost as injurious as moving. But if one has taken the wrong course, that every day carries him further from his forte, an early change is desirable. He need not choose the style or practice of a bright, shining light to begin with. It will be sure to make him dizzy and bewildered. Builders commence on small houses. Sea- men and captains, conductors and generals are promoted from lower ranks for efficiency. As a rule, we can take our lessons from established teachers; astronomy from professors, science from standard authors, finance from statesmen, anatomy from surgeons, law from court decisions, and religious teaching from the churches. But we should not rest satisfied without a careful examination to verify the correctness of our authority. To assume that all young men can start on a level with Webster, Clay, Beach or Butler, and argue from their methods 236 MODERN JURY TRIALS is a great expectation. Young men should not dream of it, the very thought is disheartening. The name, the theme, the charac- ter, all have a place in the life of a lawyer. The young man that masters a justice practice in one year, a circuit the next, and tries an important supreme court case in five years, or makes a mark in high criminal practice in seven years, is an apt and prom- ising advocate. Many a young advocate has heard a great orator in some grand and powerful effort, that seems easy to equal; but, like the student who thought the proverbs of Solomon quite simple, and was told to write a few, suddenly changed his curious opinion. This look- ing at law from a mountain top is pure speculation. He will find the ideal case and "the widow's son" are rarely met with in prac- tice. It will be years of patient work and years of character build- ing before he is trusted in matters that require a speech like Burke, in the trial of Hastings, or Butler in the Johnson impeachment. The story in the school books of the fence builder, whose boy was discouraged at the long line of wall to build, when the father staked it off into twenty parts, each part for a day — is an excellent model for a lawyer. The boy that had no hope of completing the whole in twenty days, was sure that one twentieth could be easily done in much less than one day. The work was completed and the reward obtained. It need not follow that a brilliant forenoon will bring out a long, dull afternoon lawyer. But it often follows that a plodding student reaches the bench, while the flashy advocate is straining his lungs to convince an ignorant jury, that his client has a claim to their verdict. The fact is, men are rarely accorded a double qual- ity. We credit a man with the wisdom of a judge, who is still and conservative in his views; who is neither deep, nor sound, but looks wise and thoughtful. Silence often passes for wisdom, while open expressions are looked upon as lacking in soundness. And more than this, men may require the force of expression and give them- selves to deeper study, while having the beauty of language, and the gift of eloquence, they may rely on the one and spurn the other. Many great advocates have committed this error. Few men have lived who were wholly original. Pioneers in their art, like Dante, Homer, Milton and Michael Angelo, spending years on a single poem or painting — men who lived centuries before the press, may claim such an honor. But business and professional men are willing to study the fine art of success as the best means of attaining it. In the sense of teachers, they covet instruction from style and language and manner of others. Webster's sentences METHOD. 237 were full of sayings from Scott and Adams. Erskine's thoughts were modeled from Milton, and Baoon, and even Cicero was an ardent admirer of eloquence in others before he became a polished orator. The same old royal road to riches is gained by the frugality of a Franklin, to knowledge by the industry of a Greeley, to character by the purity of a Washington, to originality by extended compila- tions like Shakespeare, to greatness by the goodness of a Lincoln, and to perseverance by the determination of a Livingstone — explor- ing on and on, with tired and broken limbs and bent body, to victory. All these are methods worth making into models. Others in other stations will follow, and have followed, that one may look at and admire to stimulate his courage and patience, and ripen his ( knowledge, and such study need never decrease his individuality. 1 Machinists study rival inventions, and improve them. Advo- ' cates commit thoughts and use them, and add to their argument the weight of authority that always attaches to well quoted para- graphs. In all this it may be the aim of the student to make one more man just as original, and a little improvement on the model he learns from. This is seen in the steam engines, the sewing machines, or the mighty ironclads of our navies. It is not the object of reading to create a new character, but to round up the one we possess. To study a thousand speeches need not alter the style of counsel. But in assuming that good company and good reading will improve men, we admit that the more we fill ourselves with the wisdom of others the larger will be the fund of general information. It is too late to assume that men are born great in our profes- sion. The greatest lives deny it. The history of law and lawyers is dense with examples of plain, painstaking, studious advocates from Demosthenes down to our day, where men like Stephens, with just enough of earth to cover their immortality, shed a brilli- ancy of intellect in the halls of Congress. If it is looking to models that improves our light, like Edi- son is said to have done in his experiments, the improvement is none the less commendable. The highest notch cut by the daring youth over the father of his country, so luminous in history, has never been reached in the legal profession. The time has come for change and growth and improvement; the time will come when other Websters, Clays and Marshalls, equipped with their wisdom, and added learning shall give us a new genius like Burr, or a saga- cious reasoner like Burke; new defenses, like Seward wrought out in the Freeman case, until what seems impossible will be realized. 238 MODERN JURY TRIALS. The art of the ages, with the improvement of science and applica- tion, with the dignity of wisdom, the grace of scholarship, and sincerity of intense application, will "win the proud trophy of deserved success." LAW OFFICE, STUDY AND TEIAL. From Judge 0. I. Walker's Ann Arior University Address, 1869. Professional Suggestion's. I have already told you that I believe in the commonplace, and I shall demonstrate my faith by making some very commonplace suggestions. You will doubtless soon be admitted to the practice of the profession for which you have been preparing, and sooner or later will open an office for the transaction of business. OFFICE. Although not as important as some other matters, I think the manner in which you keep your office is not unimportant. The lawyer should remember that " Order is heaven's first law," and order, perfect and complete, should reign in his office. His books and papers should be arranged so that there is a place for every- thing, and everything is to be found in its place. The time and worry saved to a man, by habits of system and order, can hardly be exaggerated. Neatness, too, should prevail. Nothing is more disgusting than the office of a lawyer where the furniture is covered with a heavy coat of dust, the floor covered with old papers, and the spittoons filthy and disgusting with the result of the use of tobacco. If you are so unfortunate as to he slaves' either to the habit of smoking or chewing, establish it as a settled rule of your life, that you will do neither in your office. If you indulge in these habits there, then every visitor will feel also at liberty to indulge in the same filthy habits, and the result will be that your office will be offensive to more senses than one. Your furniture should be neat and comfortable, and how expensive, should entirely depend upon your business. If the business authorizes it, a carpeted room, good chairs, and neatly covered tables, aid in giving character and dignity to a lawyer's office. ,LA"W OFFICE, STUDY AND TRIAL. 239 I earnestly warn you against a practice that more or less pre- vails, especially in country offices. A set of idle, clever fellows, fond of talking, smoking and chewing, frequently lounge into the office of a young lawyer, especially if he is a pleasant, agreeable companion, and take up his time with idle, and worse than idle, talk. The evil is a very great one. It leads to loose conversation, loose company, had habits, and seriously interferes both with study and actual business. A client coming into an office to see a lawyer, and finding it occupied by idle gossips, will be very apt to turn upon his heels in utter disgust and seek professional advice from those who have no such surroundings. It is not entirely easy for a lawyer, especially if he loves approbation, to overcome this evil, great as it is, and yet it may and ought to be done. A young man, although known to have but little business, may always cour- teously yet decidedly excuse himself from having his time taken up with such guests. He may always say, "You must excuse me; I am occupied; I am engaged in study, or in business, and have no time to spare." In this way he will gain the respect of those whose society he thus declines, and will lose no friends w<5rth keeping. HABITS OF STUDY. Tou will find, if you do not already realize the fact, that, with rare exceptions, the road to success in our profession is through hard work. An eminent English lawyer said: "If one would be a good lawyer, he must live like a hermit and work like a horse;" and there is truth in the saying. But this is not an evil, but rather a good. "Honest work, well done," is a source not only of profit and growth, but of genuine pleasure and happiness. No young man, just commencing practice, can expect to have his whole time occu- pied with business, and it is of vast importance that he at once adopt systematic habits of study and work, and thus prepare himself for business when it does come. To this end he should, at any cost, devote much time to a careful study of the principles of his ]jro- fession. Few things are more fatal to the prospects of a young lawyer than the habit of idling away his time in his office while waiting for business, or the desertion of his office in search of pleasure or good companionship. Unless when business calls else- where, be at your office at all proper hours, and always at work. I do not think that the best mode of professional study, by a practical lawyer, is that of reading text books in course. A better mode is to examine special topics and questions, and study them thoroughly. Let some one question be examined until you know 240 ' MODERN JURY TRIALS. that you have completely mastered it, that you comprehend the principle that underlies it, and if there be a conflict of authorities upon the subject, until you know the origin of that conflict, and the several theories upon which it is based. It is of the utmost import- ance that you get clear, certain and fixed opinions upon the topics that you thus examine. Every effort at forming such an opinion is an element of intellectual growth, and the consciousness of hav- ing arrived- at a correct conclusion gives a needed self-confidence, "while such a definite opinion is an ever-ready weapon in your pro- fessional armory. I would also advise you to master some particular branch of the law thoroughly. It is impossible for any one man to be a com- plete master of the whole law. The study of a lifetime would not enable him to accomplish this. One may have a general knowledge of the principles of the law in its different departments, and he may prepare upon any given case, in any one of these departments; but there is no lawyer, however learned, that will not frankly admit that there are men equally thorough in all branches of practice. THE TRIAL ITSELF. The first step in the actual trial of a case, after the empaneling of the jury, is the opening of the cause to the court and jury. This is a matter, the importance of which is very greatly overlooked.' It should not be an argument, but it should be, in all important cases, a statement of the facts and points of law upon which you rely in the case. It should be simple, clear, yet full; candid, yet strong. Very few persons, whose attention has not been called to the matter, comprehend the force that there is in a clear, succinct, orderly narrative of facts. There is a logical power about such a narrative that exceeds often the mere force of ingenious reasoning. It is the natural logic of the facts. And you will do well to culti- vate with care this power of clear, simple, forcible narrative. The next step in order is the examination of witnesses. And this affords a very ample field for the exhibition of the tact, skill, shrewdness and legal ability of counsel — a field quite too little cul- tivated. Neither books nor general rules can aid very much in making a good examining counsel. It requires good sense, good temper, an intimate knowledge of human nature, quick discern- ment, wise discrimination, a familiarity with the rules of evidence, and very thorough knowledge of the case under consideration. One can hardly adopt any general rule as to the manner of examining witnesses, arising from the different character of wit- LAW OFFICE, STUDY AND TRIAL. 241 nesses. Some witnesses communicate readily and clearly what they know. From some you can hardly draw a fact, except by a process akin to torture. Some are garrulous to excess, others are taciturn in the extreme. The one, in answering your questions, will volunteer much that is entirely irrelevant, or what is worse, quite injurious, while the other will hardly answer at all. Some are sensitive, bashful, shamefaced; others bold to insolence. Some are positive "Without the means of knowing right from wrong, They're always decisive, clear and strong." Some are so fearful of being wrong, that they are never right, and so qualify the truth that it loses all its power. In dealing with this variety of character, counsel must be cool, wary, judicious, adapting his manner to the necessities of his position. Above all things, let counsel avoid the manner of examination entitled brow- beating. There are instances where counsel are fully justified in examining a witness with great sharpness and severity, but those cases are exceptional and very rare. As a rule, counsel who are courteous and bland in their manner of examination, who are gen- tlemen themselves and treat witnesses as gentlemen, are far more successful than those who are wanting in these qualities. Let me specially impress upon you the importance of knowing where to stop, and of leaving off when you get done. Ask no questions without an object. One of the most common errors com- mitted is in the extended, pointless cross-examination of witnesses. The right of a cross-examination is of inestimable importance, and in certain cases the exercise of this power requires the best skill of the ablest lawyers. But cross-examination, as often conducted, not only does not aid the cross-examiner, but injures his cause» strengthens the testimony of the witness, and wearies and annoys the court and the jury. If the witness is honest, cross-examination usually refreshes his mind, strengthens his recollection, and makes him more positive in his statement of facts than he was in his examination in chief. And if dishonest, and skillful, unless you hold the threads of detection in your own hand, cross-examination is dangerous. In the practical suggestions that I have made, I have drawn freely from the fruits of a personal experience of more than a quarter of a century of not unsuccessful practice in the profession in which you are engaged, or to which you aspire. That profes- sion I studied in the midst of many discouragements, arising from deficiencies in early culture, from poverty and painful embarrass- ment. Its practice I commenced in the midst of entire strangers, 16 2 12 MODERN JURY TRIA.LS. without a library or means of support, and without any one to lend me a helping hand. A retrospect of my own life enables me, with- out the aid of " mystical lore," to foresee the future of many a member of this class; and as I cast that horoscope, I see no flowery paths of ease gleaming through the vista of coming years. The honors of the profession are neither easily won, nor lightly worn. Earnest struggle, and noble endeavor can alone enable one to sur- mount the "hills o'er hills, and alps o'er alps," that rise in the path- way of professional life. But this struggle and this endeavor brings its own reward in the conscious increase of power, and the fuller development of the faculties with which God has endowed Prof. Walker, for many years law lecturer, and eminent as an advocate in the prime of accurate practice, is safe authority . on these subjects. Other reliable counsel have approved the • Twenty-one Rules," and kindred topics treated in this department. MAY STEPHENS INSUEANCE CASE. Tried at Detroit, March, 1875. May Stephens lived in Ypsilanti, and was insured in five com- panies, aggregating $20,000. The Michigan Mutual Life, of Detroit, contested their $5,000 policy on the ground of fraud. Deceased had only paid twenty-four dollars in all, was poor, and gave her notes for premiums. She was drowned in a cistern, leaving two small children — ages under fourteen. A guardian was appointed, and suit brought in the Superior Court of Detroit, which was crowded full as the trial came on. Judge Longyear left the United States Court to listen, and was invited to sit with Judge Cochrane of the Superior Court. The bar crowded in en masse, and witnesses and spectators packed the court room for many days. The eloquence of Mr. Lothrop, the caustic logic of Mr. Maynard and the keen, incisive points of Mr. Pond were never used with bet- ter force. Every one was at his best from beginning to end of the trial. But the climax came with the closing address of Mr. Anthony McReynolds, of Ann Arbor, then fully seventy years of age, a large, tall man, of the old school of lawyers, not often heard MAT STEPHENS INSURANCE CASE. 243 in court rooms of late. A peculiar Scotch accent, a rugged, west- ern style of speech, but extremely convincing and, at the close, wonderfully pathetic and eloquent. The theory of the defense was (1), that Mrs. Stephens insured heavily, intending to commit suicide; (2) that she was too poor to pay the premiums, and must have known it; (3) she had secret diseases; (4) the company was so honorable, it would never refuse to settle an honest claim without litigation. Each theory was ably elaborated. But the purpose of this report is to give the quaint and peculiar eloquence of Mr. McReynolds and the effect of homely, rugged words on modern juries. He said: " You would think that Mr. Lothrop's honorable directors would rather give the amount of the plaintiff's policy than suffer the dis- grace of resisting a claim ! As citizens we concede them all this high and exalted position, far above and beyond all cavil and quib- bling over honest debts ? "But my brother forgets those great words, standing out in his- tory ever since the days of England's brilliant jurist, Lord Coke: ' Corporations have no souls ; no eyes to look on justice ; no ears to hear the voice of witnesses ; no hearts to feel for suffering human- ity ! ' An honest citizen may be a director in a bad corporation, where the majority rules, and he loses his identity and becomes a soulless citizen. He has the double character — one a man, a tender, loving man, and one a hard-hearted corporator. Let me explain: In my native land (most of you know where that is, gentlemen), one may be a duke and a bishop at the same time. It happened a friend was both, and a man that would make the earth tremble with his dreadful oaths. He was a notorious gambler, attended fights and horse races, got drunk, and did all that such men often do, but quite likely to disgrace his church. A brother took him to do about it. But the bishop replied, 'You don't understand this thing; you know I am duke of the realm and bishop of the church. Well, when I swear I swear as a duke, and when I go to fights I go as a duke, when I gamble I gamble as a duke, certainly not as a bishop ! When I pray I pray as a bishop.' 'But, pardon me,' said his good brother, ' if I illustrate how in the great day of judg- ment, when the devil shall come to claim his own (the duke in all his deviltry! ), then, pray tell, what in the devil will become of the bishop ? ' and the duke subsided. When the devil shall come for these soulless corporations and their honorable officers, where in the devil will be the good citizens ? " But she was poor ! How could that work a fraud on the com- 244 MODERN JURY TRIALS. pany ? The policy had its own conditions, was its own receipt — was made at the urgent request of an anxious agent. On failure to meet the premium, she was deprived of its benefits. Talk about honest citizens paying honest debts ! Talk about fraud committed on this poor, afflicted company, with its force of shrewd, sharp men; talk about the imposition of a loathsome disease ! Why, gentlemen, what are the records on that fact? Strange her nearest neighbors never, knew it. Strange the doctors never knew it. Here is their story in this application: Sound, healthy, five feet six, robust, skin clear, pulse 72, waist 36, no insanity, palpitation, erect, sound in every limb. Yet rotten with disease, they say ! " Oh, what a monstrous absurdity ! Experts chosen for learning, skill and experience, baffled by a poor, weak widow, who is seek- ing to impose upon the world by a fraud. She had a little money. She was coaxed to invest it for her child — her bright-eyed boy, for her little girl, fast budding into womanhood. She did. She went too far. She was over-persuaded. These men, pleading in her ear,, telling the stories of profits, singing their siren songs, that, like the mermaids in the legends of old, which lured the returning seamen from their well-filled boats to tie up the ships and follow the sweet songs until far away from home, in the mountains and forests, they were lost, to die alone in hunger and delirium. It is said that ever afterwards travelers took warning, as they passed, and put wax in their ears to shut out the music of the allurers as they passed. This may be a lesson in our day, for only wax could shut out the pleading appeals to join this coaxing company. * * * Oh, what a picture is here to behold! Two little orphans battling with a giant corporation! A money power, backed by the bond- holders and directors. How it rouses our impulses to witness the contest ! "That mother, the object of this bereavement, is gone. Her lips are dumb; her voice his hushed— low in the silent grave. No whis- per can come back to say: 'I slipped. I fell. I was misguided. I did all; I risked all for you ! for you, my children, my own ! For you, my little ones.' " She has gone. She has whispered the last good night and gone ! The secrets of her death are locked up till the judgment day. There they are sacred; there they will remain secure. ******** "Oh ! I can see her now; it is early twilight, it is winter, the snow is falling fast and slippery; whitening the little plank walk to the cistern. She has company, she hurries down the walk catching up a pail, leaving the hook hanging over the curbing. MAY STEPHENS INSURANCE CASE. 245 bending low she slips, falls, the water covers over her, no one hears, she is drowned ! It is an accident; and I almost hear her say, as she looks down to you, to this upright judge, this honest jury : ' Gentlemen, you may cheat my children, if you will, but spare them the burden of dishonor; the money will be a poor pit- tance at the most to that priceless character that my innocent chil- dren should inherit.' We plead for the money that they deserve, we plead for the character that they own, we plead for the justice that their evidence demands; make their lives happy and their mother's memory sweet — sweet as the day she bade them good- night, the night before the night of death, little dreaming of the sudden end, little dreaming of the scandal they should meet, little dreaming she should be held up in horror to frighten a jury from duty; held up in shame and diseased to blot out the fair name she had earned for her children ! You will not stain these little ones, gentlemen; you will not pay a claim that way; you will not cancel a just debt by a mean insinuation of wrong. Why, gentlemen, they would have you think that this woman loved her little ones so much that she dared the pains of hell, and drowned herself, that they might be made rich, though orphaned ! No crown of glory she held in prospect; no garland of the blessed to be wreathed upon her brow ! only a sordid fraud, a leap in the dark oblivion of the great hereafter, to get gain ! * * * " Gentlemen, my work is almost done; poorly as it is, I must trust to you to do a better work. And my little clients (here the speaker laid one hand on each of the client's shoulders and amid the hushed silence of rapt attention, said), my little clients, may God bless you ! I have done my best to make your names an honor to our state. But, O! how poor and weak my words have been. And you, gentlemen, even now, by your silence and your interest in this case; methinks I hear you say, stop ! delay not longer ! let us begin this work of justice; stop ! that we may rebuke this cruel company; stop ! that we may restore these orphans to their own; to that pure character that they will love to honor, a character as pure as they knew her on that last and long good-night; stop ! that you may wipe away all tears from these orphaned eyes, and plant the sweet rose of a mother's love in their bright young lives to grow, bloom and bless the world for their living in it; stop ! that we may right this wrong at once. O God ! put it into the hearts of this jury to see the truth; to vindicate a mother's name and a mother's love to her helpless children. " O God ! remove the mist from this case, reveal the truth to these jurors, let them see their duty and give them strength to do 246 MODERN JURY TRIALS. right, and do it remembering that some day — -yes, an early day to most of them, when they shall be called home, to leave, it may be, dependent children and a sacred memory of a good name — that of future juries theirs may expect the same just finding that they have found for us — a verdict and a vindication ! Jury found for $5,300, and the other three cases were duly paid. The case was an ideal jury trial. I have reported last part from memory. I have never witnessed more effective eloquence. J. W. D. FOSTEK-HATFIELD TRIAL. Held at Indianapolis, January, 1872. The convenient plea of insanity that cleared so many celebrated criminals failed to acquit in Foster-Hatfield case. The defense was unusually able and eloquent. The jury were deeply moved. The dramatic surroundings were not wanting; but wife and children, tears and appeals, were in vain. Attention is called to the skillful reply of Gen. Brown to the final appeal for sympathy — one of the best replies ever uttered: " Take this widow and these orphaned children, and standing by the grave of Calvin Hatfield, unmarked by stone or monument, and in view of the great sorrow that this defendant has brought into the world, there write your verdict !" The speech is so brief that it is given in full, hoping it will repay a careful reading. HON. THOMAS M. BKOWlf'S ADDRESS. Gentlemen of the Jury : After the able, eloquent and convinc- ing argument of my colleague, Mr. Guffin, I feel that there is but little left to say in presenting the case on the part of the Common- wealth. He has presented it so fully, so ably, that I feel embar- rassed in reviewing the ground of discussion. He has invited your attention to every material point in this important and solemn con- troversy, and has completely exhausted every topic within the orbit of this discussion, and has left nothing to me but to repeat what he has already said so well. I have no hope that I shall be able to acquit myself as creditably as he has done, but with your FOSTER-HATFIELD TRIAL. 247 indulgence I will discharge this unpleasant but responsible duty as best I can. To this indictment, charging the defendant With the willful and deliberate murder of Calvin Hatfield, his counsel set up a two-fold defense, and these defenses are inconsistent and antagonistic. It is said, first, that when this life was taken — that when the accused, on the twenty-seventh of November, shot Calvin Hatfield to death — he was insane; that the act was the result of an insane impulse; that it was the act of an irresponsible and irrational being. Again it is assumed that the act was one of self-defense; that it was done under the well-founded apprehension that it was necessary to the preservation of the defendant's life, or to save him from serious bodily harm. These defenses do not stand well together. The presence of the one excludes the other. Either of them, if supported by the evi- dence, is complete in itself, and there can be no conviction if either be true. But there is no legal chemistry by which you can mix half insanity and half self-defense together and thus compound a com- plete answer to this charge. If the defendant, at the time of this most horrible tragedy, was in fact of unsound mind, or if it became necessary for him to take the life of the deceased to save his own, or to protect his person from serious or grievous harm, then he is not guilty of the crime returned against him in the indictment. But if the act was one of self-defense — if it was the act of one who had reason to apprehend that his own life was in peril, and that it was necessary to slay his adversary to insure his own safety, then the transaction was a rational one, and the actor must have been sane. The act of self- defense is the result of correct thought. The defendant, it is said by this defense, saw the danger; realized that it was imminent; that unless he acted, and acted promptly, serious consequences would ensue. It is said that the means employed to save himself were suited to the great emergency. If these things be true, they are wholly and utterly repugnant to the defense of insanity. The act of self-defense supposes the presence of the reasoning powers and of their employment. The defendant's counsel in one sentence pronounce him a maniac, and in the next they insist that in this work of death he acted the part of a reasoning and rational man; that he saw the emergency, knew its extent, and adopted the proper measures to avert the im- pending danger. I repeat, gentlemen, that these defenses are inconsistent and antagonistic. First, then, to this defense of insanity. Upon this subject I shall 248 MODERN JURY TRIALS. probably have much to say, not that it is particularly involved in this cause, not that there is any evidence supporting this theory of the defense that deserves serious consideration or protracted dis- cussion, but for the graver reason that we have arrived at a time in the administration of justice, in the enforcement of the statutes against crime in this country, when it is the duty of every citizen who respects justice, has a regard for the safety of society and desires to see the law enforced, to caref ully consider this oft-abused defense, this common highway of escape for the most vicious and abandoned criminals in the land. If a crime is committed that shocks and startles humanity — one at the mention of which strong and brave men turn pale; one so shocking, so atrocious that it appears the work of a monster rather than a man; when the law has been outraged and set at defiance, and when public peace and security cry aloud for an example — it is in such a case — when no other defense can be devised — that insanity is made available. The bolder and bloodier the murder the better and the more easy the escape. On the slightest provo- cation and most flimsy pretext, a throat is deliberately cut or a head blown off, and the assassin is suddenly discovered to have acted under an "insane impulse" that overwhelmed his "will power," and a jury of intelligent but credulous gentlemen so write it in the verdict. A quarrelsome, worthless, drunken vagabond, one who has long been a terror to his neighbors, who involves himself in bar-room broils and street fights, fills himself with whisky to fortify his courage, and then maliciously kills his man. No defense is thought possible, but " homicidal mania," or some other mental infirmity, is conjured up; a jury acquits, and public justice is outraged. How easy it is to raise a doubt as to mental condition. Go back along the pathway of the man's life, show his every eccentricity, every foible, every impracticable twist in his conduct, the foolish things he has done when sober, the ridiculous things when drunk; give the number of convulsions he may have had when a babe, depict his extravagant expressions when in the delirium of a fever, and his hallucinations when sobering up out of a debauch — group all these together, and base an opinion upon them solely, the proof appears complete, and a murderer goes acquit. Gentlemen, I am true to the history of the times when I say that these defenses are in a very large majority of instances manufac- tured to order — gotten up for the case — and that juries have made themselves ridiculous and brought the administration of the law FOSTER-HATFIELD TRIAL. 249 into contempt, and reproach upon our tribunals of justice, by allow- ing the bloodiest and guiltiest in the land to escape punishment. Look, if you please, to the many extraordinary cases of murder of recent date, in which this defense has been made available, and can you name a single person in whose behalf it has been made, who has ever been confined because he was dangerous to society, or even put under treatment for the disease ? No, gentlemen, these men, with crimson hands, walk abroad at noon day. Shall such things be? You must answer — courts are powerless unless juries do their duty. I am not without authority for these statements. This outrage upon the civilization of the age is not only the topic of general con- versation, but it has been mentioned by the Supreme Court of the State. In the case of Bradley v. The State, Mr. Justice Ray says: " We are well aware that the doctrine of insanity has been employed by counsel to cover the most execrable crimes; that juries have disgraced themselves and degraded their office in apply- ing it to the sanest of criminals. In special cases they will not dis- tinguish between insanity and moral depravity. If there ever were a time when .the truth might be withheld, the temptation would be strong upon us now. * * * Indeed, it must be evident that the cases where the shield of insanity protects the guilty, are those where the circumstances appeal so strongly to the sympathy of the jury that they would probably acquit without any pretext; where the feelings control the judgment and the moral obligation of their oath, and fit the triers, if not the tried, for an inquest of insanity." With these observations, demanded as I believe by the exigen- cies of the times, I will proceed to discuss such portions of the evi- dence as may be thought to bear upon this branch of the case. Mr. Hauler calls your attention to the words of the act defining the crime of murder in the first degree. " If any person of sound mind," says the law, " shall purposely kill, etc." It is quite true, there can be no guilt — no accountability in the absence of under- standing; and there can be no punishment unless the accused was in legal contemplation, of sound mind when the act was commit- ted. But you must bear in mind that the law presumes sanity and legal accountability, and this presumption continues until it is attacked by evidence tending to show a contrary condition. The burden of this proof is upon the defendant. Before proceeding further, it is proper to dispose of one branch of the defendant's case, and I shall do so in a word. Drunkenness is not insanity. One who commits a crime when voluntarily intox- 250 MODERN JURY TRIALS. icated is not excused, but held to the fullest measure of accounta- bility. Such is and always has been the law. To hold otherwise, in this day of bar-rooms and saloons, would be monstrous. Drunk- enness in no sense mitigates crime purposely and intentionally com- mitted. The learned gentlemen who have so ably conducted this defense assume, however, that drunkenness is only voluntary, in a legal sense, when the person gets into that condition for the purpose of preparing himself for the commission of an act. This position has the single merit of novelty; it is fortified byno reason, and supported by no authority. That it is not the law, I am certain^ and I will not insult the intelligence of the court by giving it fur- ther attention. Gentlemen, the court will doubtless fully instruct you on this point. What is insanity ? What kind and what measure of mental inca- pacity — unsoundness of mind — will excuse the killing of a human being? The state is content with the law as stated by the counsel for the defense. I will read the rules laid down in the authorities cited by the gentlemen, and by these expositions of the law let this case, as to this question, be determined. All the Supreme Court has said in the case of Stevens v. The State and Bradley v. The State may be summed up in a single sentence: "Has the defendant in a criminal case the power to distinguish right from wrong and the mental power to adhere to the right and avoid the wrong?" First, insanity may be said to directly affect the reasoning pow- ers of the mind, and secondly, the will power. If one knows the difference between right and wrong; if he is conscious that the act was one which he ought not to have done, and at the time had con- trol of his will and judgment, then, say the authorities cited, such a one will be accountable for the act. It is said one may reason correctly, and yet if he lacks the power to control his conduct he is of unsound mind. This is indeed a most liberal, and I believe a most dangerous rule. But, gentlemen, I am willing that you shall regard this as the law applicable to this case. We must bear in mind, as we proceed in this investigation, that insanity and moral depravity are not the same. How often men under the influence of powerful and controlling passion commit crimes of violence. It might be said in such case that there was a "want of power to control the conduct," but it would be monstrous to hold one excused under circumstances like these. Passion, however strong, terrible or emotional, is not insanity. It would destroy government almost to allow anger to excuse from criminal respon- sibility. Anger has more frequently dyed its hand in human gore than hatred or revenge. It has nerved the arm and direc- FOSTER-HATFIELD TRIAL. 251 ted the blow in many of the most heartless and brutal murders that have ever disgraced the world. Again, one may be said to have lost his " power of will " when he yields to' temptation. The thief who takes the property that does not belong to him yields to his baser nature — his depraved and vicious instincts get the supremacy of his moral powers. How many have struggled long and gallantly, until the great tempta- tion that lay in their pathway overpowered them and they fell, and oh, how sadly. Such cases may excite our sympathy, but yet there is sin, and shame, and crime in the fall. I desire to be distinctly understood that when I speak of the want or the absence of the will power as an unsoundness of mind, I refer to cases where this faculty of the human intellect is absent, as the result of disease, or to cases where it never had an existence. There may be an occasional case where one per- fectly sane a moment before and in a moment after the commission of murder, but who just at the particular instant, by an uncontroll- able impulse, lost the power to control his actions, but I think these cases rare — so rare that the hanging of a few of such maniacs would make such bloody impulses more rare in the future. Regarding these impulsive cases as base and shameful frauds, I am still bound to admit that when the functions of the mind are so impaired that the power to control the act is wanting, there can be no crime. The defense put this defendant afloat on the great sea of human life without rudder or compass; at the mercy of every wave; blown out of his course by every gale; powerless to avoid the breakers, and liable at any moment to be stranded on the rocks. In the light of the evidence, I protest that such was not the case. I maintain that this murder was deliberately planned and consummated. It was cold-blooded and fiendish it is true, but it was the act of a man incited by a long-nurtured and malignant pur- pose. I believe his counsel do not insist that this deed was the result of a mania — an insane delusion. Such cases sometimes occur, but they are always well defined and easy of proof. Take the case of Hadfield, which Erskine, by his eloquent defense, has made immortal. In that case the accused was a loyal subject of the king, had been a gallant soldier under the proud flag of Tra- falgar, and was ever ready to resent the slightest insult offered to his majesty. In all respects he appeared rational, except upon a single subject. He thought himself a Messiah — that he had a great mission to perform in the world; that to complete this work he must die; that he must be crucified. He sought death at the hands of the people or the executioner. Until this was done he thought 252 MODERN JURY TRIALS. his divine mission not performed. Reasoning accurately, he knew that to compass the death of the king was treason; that the punish* ment for treason was death. To bring this death upon himself he shot at his sovereign in a public theater. This act was plainly and unmistakably the result of his insane hallucination. He had no enmity toward the king, nor did he desire his death. Hadfield was acquitted, and it was right; the intelligent and the good every- where approved the verdict. This is not such a case. Here thera was no delusion. The deceased did not kill his friend, but his enemy. He went out after one with whom he had quarreled, toward whom he bore malice, and having found him he killed him. He prepared himself for the bloody work, and did it in pur- suance of a long entertained and deliberately formed purpose. Gentlemen, these are the actions of a sane man, and this homicide is a crime, and that crime is murder. If this defendant was subject to illusions or hallucinations — and I deny that he was — still he is guilty of murder. He may have been possessed of any number of delusions, yet if the killing of Hat- field was clearly not the result of any of them, it was murder, will- ful, deliberate, cold-blooded murder. This was no bloody mistake. I will now, gentlemen, proceed to the discussion of the facts in evidence upon which the defendant relies to establish insanity. Perhaps when I say that counsel rely upon insanity as a defense, I state their theory of the case too broadly; they only hope to create a reasonable doubt on this point, and thus defeat the ends of public justice. He're Gen. Browne took each of the circumstances in the evi- dence, upon which the defense relied to establish unsoundness of mind. His discussion of this part of the case was elaborate and exhaustive. He concluded this branch of the discussion by the noon adjournment. He then proceeded: Gentlemen, the next question in this case is that of self-defense. If it had not been referred to by my brother Mattler, and discussed by him with a seeming seriousness, I would not have regarded it my duty to call your attention to it at all. This, if it exists, is a real and manly defense. I hope the time may never come when this great law shall be impaired or blotted out. I admit the law to be all the gentleman claims for it. It is said to be nature's great first law — that it is felt in the first throb of the human heart; that it is ingrained into our very being; that it is a part of the "woof and web" of our lives. I admit it all. The impress of FOSTER-HATFIELD TRIAL. 253 divinity is on this law and it rises higher, infinitely higher, than human statutes. If this is a case of self-defense on the part of the accused, let him go acquit. I admonish you that it is your duty to acquit him, if in killing Calvin Hatfield he did no more than defend his own person. Without troubling you with authorities,- 1 say to you if the accused slew Hatfield under a reasonable apprehension that his own life was in danger, or that he was in peril and likely to suffer grave or serious bodily injury, he had the right to do so, and he is guilty of no crime. Bloody and terrible as it has been to poor Hatfield, his widowed wife and helpless children, the act is excusable, and no law has been violated. I have, however, failed to discover any such defense in the evidence. There is no place for it in this case. It is a flimsy, shadowless pretense, scarcely, worthy serious consideration. Strike from the record all of this case except what occurred at the house at the time of the murder, and there is nothing upon which to hang a doubt. The only tangible fact to which the gentlemen refer in support of this hypothesis is that immediately after Hatfield was killed a knife was found on the floor near his person. It was unopened. How it came there is not entirely clear, but that it was in the hands of the deceased I challenge the defense to show by the proofs. It had not been used and was not prepared for use, for it was unopened. How it came there I believe to be explained by the fact that it was in his side coat pocket, and that it dropped out as he fell, after being shot, to the floor. Mrs. Hatfield swears that she saw it in his pocket after he came into the house, and I fully confide in her truthfulness. The only witnesses who speak of having seen the knife are Mrs. Owens and the defendant's sister Emma, and neither of them pretend that it was open. Emma saw it near his feet — and unquestionably where it fell — while Mrs. Owens first discov- ered it some five or six feet from the body. How come it to be removed ? I can't answer the question. I only know that the knife was there, unopened and unused. In addition to this, the wife and mother-in-law — the only persons who witnessed the trag- edy — both swear that the deceased at no time had this knife in his hands. About this there can be no question. How will this evi- dence be met ? The counsel will ask you to imagine that the knife was there for use. But, gentlemen, let me admonish you that you are trying this case by the evidence. By the light of the evidence you must say whether or not this knife was in the hands of the deceased. Mr. Hanna (interrupting)— I ask you, General, to state how this 254 MODERN JURY TRIALS. knife fell out of his pocket, when it was found in the middle room? I ask you to state this as a matter of fairness, as I shall probably allude to this circumstance. Gen. Bkowne — -It is impossible for every feature in a trans- action like this to be fully explained. This occurrence produced extraordinary excitement and tumult. A multitude of persons were soon attracted to the scene of this crime. There was hurry- ing to and fro, and that this knife should have changed positions within an hour is not strange. But how came it in the middle room? The deceased stood in the middle room when he was shot; and when he lay there dead his feet were still in the door-way of the middle room, and the knife was first seen near his feet. This explains the matter, if it needs explanation. But, gentlemen, it is insisted that Mrs. Hatfield was not present when this murder was committed. Why not present ? Because Mrs. Owens admitted to Foster that she did not notice her pres- ence at the time the shot was fired. Mrs. Hatfield swears she was there. That Mrs. Owens did not see her is explained by the fact that she stood to the rear and right of that old lady. Under the circumstances you are not astonished that she was not observed by this brave old 'ady, when, with an infant on one arm, she was with the other defending, with all the vigor of her old life, her son- iu-law from the fiendish attack of his murderer. After the gun had been snatched from her hands, and she dragged to the floor by the defendant, she still watches intently the result. In an instant afterward the deed is done, and Hatfield, with his head blown lit- erally from his shoulders, falls lifeless at her feet. Are you to dis- credit the evidence of Mrs. Hatfield, simply because under these most trying and exciting circumstances Mrs. Owens failed to observe her? But Mrs. Owens does place Mrs. Hatfield there. On the instant the gun was fired his heart-broken wife cried out in her frenzy: " Has he killed him?" "Yes," was the terrible response, " he has shot the whole top of his head off." She was there then — at the very instant of the murder. But it is clear that she was present from the other facts in the case. That she was there when the defendant and deceased came to the house is abundantly established. When did she leave ? How did she return ? Yes, gentlemen, she was there. Although her mother and herself were examined separately — thoroughly, exhaustively, their evidence is in accord to the minutest particular. Mrs. Hatfield and Mrs. Owens were both present, and both swear FOSTER-HATFIELD TRIAL. 255 clearly and positively that the deceased neither used or sought to use a knife on this occasion. But, gentlemen, I say to you, in the presence of, and subject to the censure of this learned court, in the presence of these learned gentlemen of the profession, and in the presence of the able coun- sel who so zealously conduct this defense, Calvin Hatfield had the right to have his knife there; to have it open, to have it in his hand, and with it to have taken the life of James Foster. And had he done this, he would have stood in the presence of this court, and in the presence of the civilized world guiltless of any crime. It is true the law has a tender regard for human life — it is sacred in the eye of the law, and it is your duty as peaceable and law-abiding men, and it is my duty to retreat — if you or I can do so in safety — rather than take upon our hands the responsibility of the blood of a human being, the fearful responsibility of sending a human soul unprepared into the presence of Almighty God. But I insist upon it, gentlemen, that when any man, drunk or sober, enters my house with loaded gun, capped and cocked, ready to take my life, there is no rule of law or ethics that requires me to fly from the presence of such danger. To retreat in such a case but increases the danger. To such a man you should stand toe to toe and eye to eye, and take advantage of every motion. You need not wait to be shot, but under these circumstances you may right/idly kill your assailant. This would be self-defense. It was thus that Calvin Hatfield was situated on the twenty-seventh of November. If he was the defendant and Foster had been slain, how soon you would return a verdict of not guilty. The deceased simply stood there, in the presence of this defendant, fearing to fly and unable to defend himself. He was killed — and, my God, was not this murder — deliberate, atrocious, monstrous murder? Whether the deceased was armed with a "knife or unarmed — whether the knife was open or closed — whether in his pocket, on the floor, or in his hand, the act of the defendant in slaying him was murder. If this homicide was committed, as I insist it was, and as I shall presently show, in pursuance to a deliberately formed design, the crime of which the accused is guilty, is murder in the first degree. The gentlemen have read but little law. They have, however, called your atten- tion to a single authority. It is briefly this: If one engages in a fight, and in good faith seeks to withdraw from the struggle, and does all that is reasonably in his power to do so, but is pressed by his adversary and is put in imminent peril, he may then slay his antagonist and be guiltless. This is good law, and I am content with it. But it has no application here. Gentlemen tell us that 256 MODERN JURY TRIALS. the struggle commenced at the door of the middle and ended at the door of the back room — that the defendant retreated across one room to the distance of sixteen feet. Retreated from whom? From an unarmed and defenseless man ! What a retreat was that ? Was this such a backing out as showed an honest purpose to with- draw from the fight ? But there was no fight. Hatfield had not struck, nor had he attempted to strike a blow. If he was pursued by an unarmed man, why does he use the muzzle instead of the butt of the gun ? But, it is asked, how do the parties cross the room, and why ? The problem is easy of solution. The defendant, in jerking his gun from Mrs. Owens, makes it necessary for the deceased to close with him in order to save his life. It is his only hope. He rushes toward him with his arms open — the defendant retreats until he gets the mere length of his gun in advance and then fires. This is the evidence, and these are the facts. He puts his gun within a foot of Hatfield's face, when he is standing or coming toward him with open hands, and blows his head from his shoulders. In the presence of these uncontradicted and unmistak- able facts, this defendant, by his counsel, says that he acted in self- defense. To what desperate straits the gentlemen are driven ! To what flimsy pretexts and weak excuses they are put ! I hope you understand my position as to the extent the knife figures in this case. I assume, first, that it was not present, in the hands of the deceased, at this murder; but, if you doubt this, I confidently assert that he had the right to have it there, and that it was his duty to have used it. Why parley over this question ? Who sought the quarrel ? Who provoked the difficulty ? Who made threats ? Who had murder in his heart, and went out in search of a victim ? Was it poor dead Hatfield ? From his grave he sends out his protest and puts in his denial. Do you believe that Hatfield intended to injure the defendant? Do you even think that the defendant thought that he would? No. The defense would have you believe that Hatfield intended to murder, and that he went into the presence of his Maker with the deep damnation upon his soul. You do not, you dare not believe it, gentlemen. I will now dismiss this branch of the discussion with this single observation. The court has permitted the defendant to put in evidence his own statements as to what occurred at the time of the homicide. To his mother and sister he said he had commit- ted the act in defense of his own person, that the deceased had pursued him three squares with the knife before reaching the house, and that after arriving there he was still pressed by the deceased, until he was literally driven to the wall, and that, when FOSTER-HATFIELD TRIAL. 257 he could fly no farther, he turned and shot his assailant. Are you to believe what he said when under such strong inducements to speak falsely ? Under ordinary circumstances this evidence would have been excluded. These statements were only admitted, gen- tlemen, to show his mental condition at the time. You can not consider them as true, nor can you apply them to any other branch of this case than that to explain which they were admitted. The court will so instruct you. Gentlemen, these statements of the defendant are glaringly false and absurd. They are contradicted by all the evidence, as I shall conclusively demonstrate as I proceed with this argument. These statements disappear like mist before the morning sun in the pres- ence of the truth. John Young, the little boy introduced by the defense, told you that he saw the parties together on West street, two squares from the house; that when the defendant was attempt- ing to use his gun, Hatfield took out his knife; that the defendant, before he had opened it, knocked it from his hands; that Hatfield picked up the knife and returned it to his pocket unopened, and that they then passed on together toward the house. The boy fol- lowed close behind them and saw no knife- and no pursuit. Mr. Ramsey, who witnessed the same transaction, corroborates the boy. He saw the defendant attempting to shoot the deceased; heard him swearing most profanely that he would do so, but saw no knife. He says that the deceased, after attempting to wrest the gun from the defendant's hands, stooped down and gathered up a handful of sand, but immediately threw it down. The parties then started toward the house. They walked side by side — there was no flying —no pursuit. Mr. Ramsey is the older and more intelligent wit- ness, and you can safely rely upon what he says. The boy Young was mistaken about the knife. The defendant's statements as to what occurred at the house are also lies. Mrs. Owens and Mrs. Hatfield flatly contradict him on every point. Would you expect a murderer to tell the truth? Will you confide in the statements of a man whose hands are yet wet in human gore — statements made, too, to save his life ? The gentlemen who conduct this defense would have you believe that the defendant, under all the circumstances detailed by the witnesses, having provoked the quarrel, having brought on the rencontre, if any there was, stands guiltless in the sight of God and man. Gentlemen, I have now done with this question of self-defense. I come now by your permission to present the case, in chief, as it is understood by the state. So far, I have been discussing the 17 258 MODERN JURY TRIALS. defendant's ease. In the further pursuit of truth, I may have occasion, now and then, to refer again to these questions of self- defense and insanity. I hope I shall not tire your patience. I know it is not as laborious to hear as it is to talk in this crowded court-room, and this heated and unhealthy atmosphere. Tour responsibilities are much greater than my own. You feel this, I know. You hold in your hands the balances in -which the peace and security of human society are placed upon one side, and a human life on the other. You have a just appreciation of your solemn obligations, I know, and I feel assured that you will hear me patiently to the end. I will trouble you with no further apology, but proceed as rapidly and briefly as I can to a conclusion. Gentlemen, I maintain that the defendant is guilty, if guilty at all, of murder in the first degree. I shall so discuss the case. It .is that or nothing. I will discuss it because I believe it is that or nothing. I will discuss it because I am asking no compromise in this case. I dis- cuss it because I want a conviction in the case, if the defendant ought to be convicted. On the other hand, I want you to acquit him, if there ought to be an acquittal. There is no compromise in this case. It is your duty to hew to the line, let the chips fall where they may. It is your duty to find the truth under the law and the evidence, and when you find it to put that truth into your verdict. Gentlemen, it is murder in the first degree. I will not tediously elaborate upon this subject. I will read to you the statute, the law of the State, that rests upon us all. You accepted it when you took upon yourselves the rights and obligations of citizenship. And you have added to that obligation the oath you have taken as jurors in this case to enforce it. The law says that "if any person of sound mind shall purposely, and with premeditated malice, kill any human being, he shall be guilty of murder in the first degree." That is the statutory definition of the crime. It is easily understood. I call your attention to it now. When I pass from it I shall not recur to it again. I have heretofore discussed sound- ness of mind. What does "purposely " mean ? It means inten- tionally, designedly. This is its meaning in the ordinary accepta- tion, and it means no more in the statute. What does "malici- ously " mean ? To constitute the crime, the killing must not only be done purposely, but also maliciously. It is a word frequently used by us all. It means simply, in this connection, intense hatred in the heart of the murderer towards his victim. It is evidenced, 6ays a law writer, by a depraved or malignant spirit. It is exhib- FOSTER-HATFIELD TRIAL. 259 ited, when a wrong doer acts wholly regardless of social duty. It is evidenced by a rooted design to do mischief. It means, in com- mon parlance — revenge. In legal contemplation its presence is always presumed in the perpetration of an unlawful act. If you should step upon the street and wantonly take the life of a passer- by, the presumption would be that it was done maliciously. My brother Guffin says malice is of two kinds. I would prefer- saying that the evidence by which it is established is two-fold. When the proof shows that the defendant has made threats which have been executed in the commission of the crime with which he is charged — when he has made preparation for its commission — as by lying in wait, or procuring a gun and seeking his foe, then the law says the malice is express, because the threats and the preparation are the expression of it. Where the, same crime is committed, but the proof does not show this antecedent expression of malice, malice is implied. If I should go into your stable and cut the throat of your horse, even without motive, it would be a malicious act. If malice is implied in my so taking the life of a dumb brute, how much more reasonably and strongly is malice presumed when the life of a human being is taken. I shall not take up your time in explanation of the word. You know what malice means. It presumedly exists when the act is intentionally done, and is serious and dangerous in its character. Where there is no known cause, you are to presume malice in the killing of a human being. Threats are not necessary to make it murder in the first degree. It is needless to refine upon this subject. Where there has been time for thought, deliberate thought, and that time has been employed in deliberation of the purpose to do the unlawful act, and the act is by the mind resolved upon and then committed, the act is done with premeditation, purposely, and maliciously. And this is so whether the intention to do the act was formed a minute, or a year, before the commission of it. There is no restriction, or fixed limitation as to time in this regard. It is as much murder if, in meeting you in the street, I then determine to kill you and do there kill you, as if I had nursed that purpose in my heart for years. Just as much murder in the first degree as if I had thereto- fore resolved upon your death, and with "patient search and vigil long " had hunted and followed you through the land and at last killed you. It is not necessary that I should intend especially to kill you to make it deliberate murder. The highwayman who stands by the roadside awaiting the coming of the first traveler, to demand his money, be he whom he may, if, on his coming, in an attempt to rob him he kill him, he is guilty of deliberate, premedi- 260 MODERN JURY TRIALS tated murder. Let us look at the facts in this case to see whether it is a case of murder, of murder in the first degree, murder pur- posely and maliciously committed — committed with deliberation and premeditation. The proof is clear and unmistakable. There can be no escape from it. It is nothing less. To write anything else in your verdict in the light of the evidence would be at the expense of truth — it would be a legal lie. What is the uncontro- verted evidence in this case ? There were frequent quarrels between the defendant and the deceased. The motive springs here. I am indifferent whether or not you consider the utterances of the accused eighteen mdnths before the homicide. The evi- dence is overwhelming, even if the State were confined to the fatal 27th day of November. I care not to go beyond that. I care not to go into the petty quarrels and threats indulged in prior thereto by and between Foster and Hatfield. If, under the same circum- stances, Foster had been killed by Hatfield, the crime of Hatfield would have been the same as that for which James Foster stands on trial to-day — murder in the first degree. These threats of Hatfield stand in no legal relation to the case. If there is any evidence looking toward self-defense, you may use these threats, in that connection. That defense, however, being wholly unsupported, the evidence of Hatfield's threats should be withdrawn from your consideration. Tom Reeves has been attacked — impeached. We don't rely upon his testimony. So far as I am concerned, it will not be alluded to in this argument. I do not ask you to lay the weight of a feather on this defendant because of what Reeves has sworn to during the progress of this trial. He has neither weakened or strengthened this prosecution. So far as I have the power to do so, I withdraw him from this case. Gentlemen, we now come to the morning of the twenty-seventh of November, 1871. Calvin Hatfield was on that morning alive, and his hopes and aspirations were probably as bright as yours or mine. He was yet a young man — his life mission scarce half per- formed. He was a husband and a father, and had five helpless children committed to his keeping. This was his status at nine o'clock on that morning. A few hours afterwards he lay bleeding and lifeless — his wife a widow, his children orphans, and they, poor and friendless, left to meet the trying realities of life without a father's or a husband's care or counsel. You are now to consider "The deep damnation of his taking off." FOSTER-HATFIELD TRIAL. 261 The intention of the defendant on that morning was probably to commit a double murder. The first we hear of him on that morn- ing he is threatening both Reeves and the deceased. It is certain that when he flourished his knife in the presence of Mrs. Owens, and before he procured and loaded his gun, his threats were more particularly directed toward Tom Reeves, but it was otherwise when he returned with his gun. Then Hatfield, and he only, was the subject of conversation. Mr. Mattler falls into an error when he tells you that the defendant, on that morning before coming up into the city, made no threats of violence toward the person of the deceased. He is mistaken, as you will observe when I call your attention to the evidence of Mrs. Hatfield. Gen. Brown here read from the phonographer's notes of the evi- dence: "When he came back with the gun," says Mrs. Hatfield, " he said he had loaded it with slugs of iron. He then asked me" — Oh, the heartless depravity of the man — how it chills me to repeat it — "he asked me, 'Sally, can you raise five little children alone;' I said 'No, Jim, I can't.'" Think of his unfeeling, heartless reply: "Yes, by G — d, you can, Sally; it will be hard for you, but you can do it." I ask you to let these words sink deep into your very souls. I would put them there with emphasis, because they show the spirit that animated the subsequent conduct of this defendant. "Can you take care of five children, Sally?" "No, Jim," responded that agonized mother, .and wife. "No, Jim, I can't." "Yes, you could, but it -would go G — d d — m hard." What did he mean ? Toward whom this malice ? In what direc- tion went out this spirit of revenge, and who was to be the victim of this depraved and malignant man ? Mrs. Owens relates the same facts, and puts in the mouth of the accused the same lan- guage. Were these threats directed at Reeves ? What did he mean in putting this cold-blooded question to Mrs. Hatfield ? Was it not murder, and the murder, too, that he committed in three hours afterward? In the further conversation at this time he tells this woman that he had killed her husband, and would bury him like a gentleman. Does not this explain the true intent and mean- ing of what he said before ? But as we pass forward in the evi- dence all doubts clear away. The defendant and Mrs. Hatfield start up to the city in search of deceased, and after going some half mile they meet Mrs. Foster. Here these women try to prevail on the accused to return. Failing in this, they use argument and entreaty to induce him to give up the gun. He obstinately refuses, saying, "I am going to kill myself a man with it." Kill who? For whom was he searching, and whom did he subsequently mur- 2G2 MODERN JURY TRIALS. der? We next find him in Schwigo's saloon, engaged in putting a stranger through the infantry drill, according to Hardee. The man who stood behind the bar tells you ho did it correctly. The gentlemen on the other side put it in proof that at this time he removed the cap from the gun, and threw it on the floor. This was done at the saloon-keeper's request, as he had discovered the gun to be loaded. This cap has been preserved with great care, and is brought here by the witness. I confess myself at a loss to divine what the defense expect to make out of this fact. I thank them for having put this circumstance in evidence, for it supports our theory of premeditation, as I hope to show you, and is consis- tent with all the other facts in evidence. Was there a cap on the gun at the time of the homicide ? That the gun was discharged is overwhelming evidence that there was. Mrs. Hatfield swears that she saw one on the tube a moment before the shooting. This being so, I ask the learned ^gentlemen, and I put the question to the jury, why was another cap put on the gun after leaving the saloon? Was the defendant intending to leave the city? Cer- tainly not. Was it necessary to have a gun charged and capped at nood-day in the heart almost of a populous city like this ? Was anybody to be killed ? Yes, gentlemen, he " was going to kill himself a man," and that man was Calvin Hatfield. This little circumstance of the substitution of that cap is an important one, and tends most strongly to show the presence of the premeditation and purpose to kill. It also shows thought, purpose and prepara- tion. This destroys the theory that the defendant was a "mere machine " — an irresponsible being, for here was the act of a sane planning mind — one adapting measures to the end sought to be attained. I repeat the question, gentlemen, why did the defendant renew the cap on the gun ? His subsequent conversation and con- duct unmistakably answer the question. He leaves the saloon in company with the deceased and Mr. Owens. The deceased was before — Owens in the middle, and the defendant in the rear, when they started homeward. The defendant soon passed to the front, the gun on his arm, saying to Owens as he passed, "I have the dead wood on him." No name was mentioned in connection with this threat, but who, gentlemen, was referred to ? You know the name too well to make it necessary that I should repeat it. Next in the order of events are the occurrences on West street. Here the deceased is threatened — here the defendant makes an attempt ou his life, and here is his first effort, on that day, "to kill himself a man." It is at this point that the boy Young says that he said, "Hatfield, I will let you live until you get to the house, and then FOSTER-HATFIELD TRIAL. 263 I'll kill you." Strange coincidence ! Hatfield was killed at the bouse, and immediately after his arrival there. Gentlemen, I have already discussed somewhat in detail the transaction at the house. You can not doubt that Mrs. Owens states what occurred there truthfully. Never was a witness more worthy of credit. She may be old, and poor, and ignorant, but she is honest and appreciates the obligations of an oath. She feels the awful responsibilities of this occasion. And seldom has a wit- ness stood in relation to a case as she does to this. I will not say that she has no feeling in the case, but I can say that she has no feeling that could move her from the line of truth. Her sym- pathies must go out toward the accused as well as his victim; she testifies in the presence of the grave of one murdered son-in-law, and in the presence of another who stands under the shadow of prison walls 'or the gallows. Then, gentlemen, so far this case is briefly this: On the morning of the twenty-seventh of November, the defendant procures and loads a gun — loads it "with slugs of iron." He avows his deter- mination to kill the deceased, goes in search of him, finds him, and after several unsuccessful attempts, kills him. He kills him with- out cause — without excuse, and in cold blood. This is the State's case. Will you say, gentlemen, with these facts before you, that the homicide was not committed with purpose, malice and deliber ation ? It is your duty, gentlemen, to look this case squarely and sternly in the face. Look at it as men who feel the necessity for the administration of simple justice. Look at it as men desiring to see the law enforced, that there may be peace, order and secu- rity in the land. Look at it with the view of administering the law in its spirit, and so write your condemnation of this monstrous crime in your verdict, that in the future our wives and little ones may lie down at night and sleep peacefully and quietly, without apprehension or alarm. Gentlemen, the time has come when the law must be more inflexibly administered, or the bludgeon and bowie knife will usurp the place of the law. The time was, and I confess that I have lately feared its return, when he was most secure who possessed the strongest muscle and the most malignant spirit. Another step in the history of that fatal day, and we are done. Immediately upon killing Hatfield, ■ the defendant attempted to escape. Only the guilty " fly when none pursue." But it is insisted by the defense that it was a most bungling and unskillful attempt at flight. You would not expect one having the conscious- 2G4 MODERN JURY TRIALS ness of such deep sin upon his soul to he otherwise than cowardly and confused. He not only attempted to escape from the scene of his crime, but another strong and incontrovertible evidence of his guilt grows out of the fact that he deliberately frames a lie for the purpose of his defense. He tells a broad, palpable falsehood that he might allay the fears of his mother, and make it avail him if he should be captured and brought to trial. To his mother and sister he set up a most excellent defense, and a most rational one, but it was utterly false. He varies the story a little, however, upon leaving his mother, for he exhibits a knife to Miss Chesney, and says, " I've just killed a man, and ought to have done it long ago." To Mrs. Hasselberry he said, "I expect I've killed a man ; if I haven't, I'll go back and finish the job." He makes similar remarks to Clay Rice. These several conversations all occur within a few moments after the tragedy. I need notice these statements no further. The defendant is next found in a saloon on the Bluff Road, in the southern part of the city. It was here, you remember, that he was found by the men in whose wagon he was subsequently cap- tured. When Myers came into the saloon, he remarks "-that he had just heard that a man by the name of Foster has killed his brother-in-law." The defendant at once answers, " My name is Foster, and I have just heard of the circumstance; but the man that killed his brother-in-law is of the name of Roster, not Foster." If this defendant was an irrational man, this, at least, was a most rational attempt to escape detection. But something has been said about his conduct when brought into the presence of the deceased at the undertaker's. It is assumed that his stoical indifference there, under such solemn cir- cumstances, is proof of some sort of mental derangement. Gentlemen, are you to say that one who could deliberately mur- der a friend, a relative, one at whose board he had sat — under whose roof he had found shelter — one who had stood by him in health and who administered to him when sick, could not also look complacently and coolly on his bloody work after it was accom- plished ? Is it to be said that the defendant is not accountable because his crime is more revolting and atrocious than those usually committed ? Will you set a premium on butchery by acquitting because the work is most wicked in its conception and cruel and fiendish in its execution ? Would the gentleman have you so write it in your verdict ? The whole conduct of the accused after the commission of this great crime, has been that of a sane man. His attempt to escape, FOSTER-HATFIELD TRIAL. 265 his ringing the change on the name at the saloon, his exhibition of his cut hand, and his attempt to get the driver to remember it so he could swear to it, his denial of his name to the police at the time of his arrest, and his conversations with the jailor, are all the clearest possible proofs of his entire sanity. He may have been, to sftnte extent, under the influence of liquor, but it won't do to acquit him simply because he was drunk. This would be indeed a dangerous precedent in this country of saloons. I say it would be most dangerous, for most of the crimes of the day — the murders, arsons, and robberies all over the land, are com- mitted by persons more or less in a state of intoxication. The solemn question is upon you — was this homicide the act of a responsible being, was it done without legal excuse, and was it done with purpose, malice and deliberation ? If you are able to answer this question in the affirmative, your duty is clear — the crime is murder in the first degree, and no other crime whatever. You have so written it in your statutes, and these statutes you have solemnly sworn to observe. Tour duty is a clear one, and I feel confident that you have the courage to perform it. Unless you do so, gentlemen, honestly and faithfully — unless you fully perform the solemn obligation you took upon yourselves at the beginning of this trial, you are not worthy the respect and confidence of honest men. Courts, and indeed governments, are powerless in the punishment of the guilty unless juries fearlessly do their duty. A faithless and imperfect administration saps the foundations of society, and excites the people to anarchy and misrule. We need not go far to find the illustration. In our own proud Indiana, with its schools, bibles and churches, within the last year or two a number of victims have been immolated by the demon mob. Administer the law, purify the fountains of justice, protect society from the vicious, and society will feel safe and good order will reign within our borders. Let me appeal to you to do your whole duty in this case, even though your verdict "may touch the heart of a mother or a sister.'' Punishment must be certain, that society may be safe. It is some- times necessary to make an example, and if there ever was such a time it is upon us now. 'The learned counsel attempt to excite your sympathy / or this unfortunate man. I do not complain of this. Think as kindly as you may of the erring — it is natural, it is right. But, gentlemen even in the matter of sympathy, there is another side to this case. Take this widow and these orphaned children, and go to that lonely kirkyard, and standing by the grave of Calvin Hatfield, unmarked 266 MODERN JURY TRIALS. by stone or monument, and in view of the great sorrow that this defendant has brought into the world, write your verdict. When you have done this, the demands of public justice will be satisfied and a broken lawfully vindicated. Found guilty and hung. THE TRIAL OF UKDEEWOOD. Before Judge Swift, at Detroit, May, 1874. ± he salient points of this romantic trial will appear in every par- agraph, and need no introduction. It developed the peculiar fact that jealousy is insanity, only in a lesser degree. The argument of counsel is a graphic and highly interesting manner of comparing a modern, commonplace character to the melancholy Dane of Shakespeare's masterpiece. Underwood and Hamlet were very unlike, but the love mania of one may have equaled the clouded reason of the other. Underwood was plain, of weak mental developments, not of sufficient interest personally to adorn a chap- ter, but his remarkable career, his singular tragedy, and the ingenious defense, make a novel and entertaining history of some- thing original on emotional insanity. It will be read with a relish by those who would know "the hidden mystery of a mind diseased." The popular plea of emo- tional insanity, in its rapid development from the trials of Cole, Sickles, Harris, McFarland, received additional force by a supple- mental cause, of jealousy, as developed in this peculiar case. A more concisely framed defense, and plausible showing of cause and effect, has seldom been recorded. The line of argument shows not only jealousy as a frequent cause, but that it leads a disordered mind to attack its objects most admired, and not in anger or revenge, but like the ancient Roman fathers, to protect the loved object from an imagined harm. The development is unique; the reasons cogent and convincing. Science and Shakespeare are aptly cited. The climax of the orator's effort is in the meeting and embrace of the treasured letter and the murderous knife, where they slip into the pocket side by side, and "embrace in blood." And again, where "the struggling TRIAL OP UNDERWOOD. 267 spirit boats against the walls of clay," saying, "Someone has stabbed me ! Who can it be ? " Many scenes are tragic, but the case is so brief that all of it should be read to be appreciated. A single incident in this trial will be of value to students seek- ing skill in the management of a prisoner. Whether acting or not, his statement was in a key too low to be understood by the jury, who called for louder tones, until, finally, the prisoner was allowed to stand before them, more in the attitude of counsel, while, in trembling tones, charged with emotion, in his ignorant, awkward style, in striking contrast with the vigorous manner of Mr. Chip- man, who stood near him. Underwood's appearance was that of a poor, broken, demented simpleton, with low forehead, poorly devel- oped mind, in tears, forgetful, bewildered, scarcely knowing how one word would match another, he presented a real picture of imbecility, and long before he closed his rambling story, in an English brogue, broken by sobs, the jury believed the quaint words of an old lady witness, who said of him: "Tommy was always queer like." Judge Chipman's skill was used in intensifying this homely expression and the prisoner's statement with a masterly appeal for his client. 'But he, even, admitted that the prisoner's statement was the most eloquent of all defenses that could be made in his behalf. William T. Underwood was indicted at the April term, 1874, in the Recorder's Court of Detroit, for the murder of Charlotte Pridgeon on the sixth of the preceding month. The circumstances of the case were peculiarly revolting, viewed in the light of the prisoner's sanity. The murdered woman was his mistress, of whom he was passionately fond, and he killed her in broad day- light, in a public street, with a sailor's knife which he always wore about his person. He immediately delivered himself up, avowed the act, bitterly bemoaned it, and attempted his own life during his imprisonment prior to his trial. Public indignation was intense, the press was filled with denun- ciations of the murderer, demanded a speedy trial and convic- tion, and crowds thronged around the prisoner when passing from the jail to the place of trial, and were with difficulty prevented from using personal violence. It was expected the prisoner would plead guilty, as nothing was known of his previous history, and when it was announced that he had employed counsel to defend, it was regarded as useless, and when arraigned in court, so strongly was the judge impressed with this prevailing public sentiment, although one of the oldest and best of the criminal judges upon the bench, he asked of the 268 MODERN JURY TRIALS prisoner's counsel, when a delay of trial was requested, what possi« ble defense there could be to the accusation. Indeed, the defense was expected to be more in the nature of the guarding of the right of the accused than an attempt to defend against the crime. The trial was postponed, that the prisoner might take, by depo- sition, testimony in England, where he had formerly lived and his family then lived. A plea of "insane impulse," or " temporary insanity," was interposed. The first trial came on before the recorder at the May term, 1874. The defense which had been pledged was ridiculed by the press, and public sentiment was overwhelmingly against the prisoner, so that it was with great difficulty a jury was obtained. The prose- cuting attorney, Fitzwilliam H. Chambers (now circuit judge of the county), conducted the prosecution, and Henry M. Cheever the defense. The testimony for The People was short, direct, and uncontra- dicted. The knife was found in the prisoner's hand after the killing, covered with blood, and he confessed the act immedi- ately to the officers and to others. The girl, upon her death-bed (she lived but a few moments), said simply this as to the manner of her death: "I am dying; some man has struck me." It appeared that Charlotte Pridgeon had been the mistress of the prisoner for some months; that he had nearly supported her from his hard earnings, and that they were at one time engaged to be married. The testimony for the defense was to the effect that dur- ing her life of criminal intimacy with Underwood she had con- stantly given him occasion for jealousy by her intimacy with other men; that they had frequently quarreled, and as frequently been reconciled; that just before she met her death he had met her by special appointment; that she taunted him with his impoverished appearance and ragged clothing; that he replied that he had no better, that he had given to her his money; that she drew from her pocket a picture of another man, taunted him with the fact that she was going to live with this man in another city, and concluded by a positive command that he should never seek her presence again. At his earnest solicitation, she consented to walk with him for a few minutes in the street. This interview, up to the time of their going into the street for a walk, was overheard by witnesses and detailed in court. They left the house before dark, and from that moment no person could be found who saw them together. Half an hour after leaving, Charlotte Pridgeon staggered into the house alone, mortally TRIAL OF UNDERWOOD. 269 wounded, stabbed in her left breast, exclaiming, " I am dying, a man has struck me ! " and shortly expired. This closed the testimony of The People, so far as the facts of the life and intimacy of the parties and the death of Charlotte Pridgeon was concerned. Testimony was then offered, taken in England by deposition, of Mrs. Mary Hanshaw, the prisoner's mother, giving a perfect history of the life, habits and peculiarities of the prisoner, from his infancy until he was fifteen years of age. It appeared that, when four years of age, he fell from a second- story window, striking upon his head, was unconscious from the fall, and ever after acted strangely at times. One of his peculiari- ties was a ravenous appetite, he devouring anything which came within his reach in the shape of food; a strange habit of breaking out into fits of wild laughter in the midst of ordinary conversation, or of singing a line of some song when conversing, and then resuming his conversation. He was employed as a butcher's boy, and was discharged because he could not remember the location of the customers' houses. That upon different occasions he would lock himself in rooms of outhouses, remaining for hours and days secluded entirely. Hereditary insanity was also shown, his grandmother and great-grandmother were both insane, were on several occasions confined in asylums, his great-grandmother dying in bedlam, and his uncle shot himself while laboring under tem- porary insanity. At the age of fourteen he became a sailor, and from that time until he was thirty-three years of age (he was thirty-four at the time of trial), he had followed the ocean; had been sunstruck in the tropics; had suffered with brain fever, and had been struck upon the head with an iron weapon by the mate of a vessel and made unconscious. Testimony of other witnesses showed his conduct after his imprisonment was strange and unaccountable; that he seemed sane, regretted his act, and broke out into wild and inco- herent outcries and moanings and wringing his hands, and weep- ing. The defense then introduced the testimony of five or six of the best medical men in the city, whose testimony was positive and uncontradicted, that emotional insanity or an insane impulse would be, under all the circumstances of this case, a very probable explanation of the act; that insanity was a disease that such acts of violence were more apt to manifest themselves against one beloved than against a stranger; that if the prisoner, with all his previous tendencies to insanity, and injuries which he had suffered, loving his mistress intensely, promised time and again marriage by her, 270 MODERN JURY TRIALS. was suddenly refused consummation of his wishes in this respect, and bidden to leave her forever, under the circumstances as detailed, that there was a strong probability that it would produce in his mind a state of mania, or sudden insane impulse, during the continuance of vjhich the prisoner would be utterly unalle to distin- guish between right and wrong, or to be even conscious of what he vms doing ; although immediately before and immediately after the commission of the act the mind would resume its normal condition, and the power of distinguishing between right and wrong again dominate it. The medical witnesses — Drs. "William Brodie, Morse Stewart, D. O. Farrand, Hamilton G. Smith and A. E. Yemans — were among the most prominent medical men in the' State. The testimony all tended to show that an insane impulse, or delu- sion, would sometimes mansifest itself in acts of violence, and against a loved object oftener than one disliked; that jealousy was insanity in a lesser degree, and an insane impulse more probable with a person with a weak than with a strong mind. The main hypothetical question which was put to each of the medical witnesses, which embraced the main points in the ease, was as follows: "Suppose a person thirty-one years old, a sailor half his life; when a child having fallen upon his head and injured, once struck down unconscious by an iron weapon; suffering sunstroke twice so that he was unconscious; having been prostrated for weeks by an attack of brain fever which rendered him unconscious; that he was peculiar in his manner, voracious in appetite, incoherent in conver- sation, often stopping in the midst of it to sing a song, or laugh violently; supposing such a man deeply enamored of a girl, giving to her all his earnings for four months, she constantly promising marriage and as constantly breaking her promise; if, upon the night of her death, he was with her for thirty minutes immediately pre- vious, when she reproached him for his shabbiness, showed him a picture of another man, told him she was going to live with this man, and peremptorily ordered him to break off his intimacy with her forever; suppose he was always in the habit of carrying a sailor's knife with him about his belt, and he then stabbed her to her death, what, if all these facts were true, was the strong proba- bility; was he, when he struck that blow, in such a condition men- tally; would such a man be affected to such a degree that he would be ac ing under an insane impulse, and not conscious of what he was doing ? " TRIAL OF UNDERWOOD. 271 Each of the medical witnesses answered the question in the affirmative. Q. Where do you draw the line between what you call an insane impulse, and the act of a sane man who is jealous ? A. At the point where insanity is the result of positive disease. There may be a condition which presents that of entire health, yet occasionally the developments of insanity occur. These are cases of emotional insanity. Q. Is there any difference in the susceptibility of a person who is in a normal mental condition to this " insane impulse," and one whose condition has been previously abnormal, diseased in mind or body, and if so, which is most susceptible ? A. The latter, of course. Q. Are not love and jealousy exciting causes of insanity ? A. Yes, sir. Q. Does not jealousy shade off into " insane impulse " if it is strong enough ? A. Yes, sir, it is very common. Q. You speak of jealousy as a cause of insanity; where do you place the dividing line between jealousy as a cause and jealousy as the " insane impulse " itself ? A. If a man dwells on it, and thinks of it, it becomes mental disturbance. Q. You mean, in the beginning it was a cause, but, by brooding over it, it leads to an " insane impulse " as a result? " A. Yes, sir. Q. What would be the probability of premeditation of an act committed under " insane impulse ? " A. Non-premeditation is one of the indicia of "insane impulse." Q. How as to conduct after the act, bemoaning it and attempt- ing suicide ? A. That would be another evidence of " insane impulse," bemoan- ing it, wishing it undone. The books recognize this. Q. Does not insanity or "insane impulse" develop itself in kleptomania sometimes, or in house-burning? A. Yes, sir. The jury failed to agree, standing five for conviction and seven for acquittal. A second trial took place the November term, 1874. Upon this trial Alfred Russell was added to the counsel for the State and J. Logan Chipman assisted the defense. The testimony was substantially the same. 272 MODERN JURY TRIALS. Extracts from the argument of Henry M. Cheevee, for the prisoner: The subject of insanity has occupied the attention, challenged the investigation of many men, eminent in their profession, in alnust every land. In all its manifestations of mania, monomania, insane impulse and emotional insanity, it has received careful attention, with a view to determine its nature and its cause. These various forms of insanity mean one thing. They mean, for a time at least, that the mental powers are, " Like sweet bells jangled, out of tune." Whether love, hatred, jealousy, or whatever it be that comes to destroy the God-like part of man, the result is the same. My learned brother, the public prosecutor, fears this discussion, and its effects upon the moral responsibility of the prisoner. He tells you " there was a time when murder was murder," and goes to the Gar- den of Eden for his example. Would to God he would carry us all back to that Garden of Eden, from other places than this court room, from pain, bereavement, agony, disappointment, hatred, death. I wish he could eradicate from men's minds the memory of all that has been, and surround them with all that is pure and noble and good. But he need not have gone back to the garden for his example. In the days of the Salem witchcraft, of the fag- got and the stake, " murder was murder," and men, and women too, were burned, whether the act for which they suffered was the result of clear mental deliberation or involuntary. Murder was not only murder then, but insanity was a crime, not a disease. It was an evil spirit. In that day theologians gave us the definition, and we believed it; then the world became a little wiser, and metaphysicians took it up. They called it a lack of intellect. But now we know that it is a disease. How did they test insanity in other days ! Not by looking at the act committed, but the individual himself who committed it. Then, looking within themselves, the metaphysicians said because we would have known the act was wrong, and could have resisted the inclination to do it; therefore, he who did it must have known it was wrong, and could have resisted it. Therefore it was a crime. But now we know it is a disease of the brain which affects the mind, simply because the brain is the mind's workshop. If it is a disease, then we cannot hold a man responsible for his acts committed while under its influence; unless you hold him equally responsible for his ravings during the delirium of a fever. Insanity affects the mind and produces action very much as involuntary action of the TRIAL OF UNDERWOOD. 273 body is produced. Do you blame the somnambulist ? Do you blame a somnambulist for committing that in his sleep which, in his waking moments, would be a crime ? No. Should you, then, blame him when he commits an act (which, in his conscious moments, would be a crime) not in his sleep, as we view sleep, but when his mind is just as surely unrestrained by will as is the mind of the sleeper? Insanity, then, is a disease, to be judged, not by your conduct, nor by theological definitions, nor metaphysical distinctions, but to be judged solely by the mental condition of the person himself, in connection, with the deed. * * * There is a wide penumbra between the bright sunlight of reason and the dark eclipse of insanity, within whose shadow walk more men than you or I know. Have you ever stood with a friend, on some lofty pinnacle of some majestic temple, or upon some bold rock that overhung the precipice, and standing thus, has the thought ever flashed through your mind how the slightest touch would send your friend to eternity ? Have you ever thought when in such a position, " What if I should throw him over ?" Have you never held in your hand a deadly weapon, surrounded by your loved ones, and had the unwelcome thought force itself into your mind that, on the impulse of your will hung life or death to them ? Have you ever, in the stillness of midnight, watching by the bedside of a loved one whose feet had well nigh entered the dark valley, whose mind was delirious with fever, whose body helpless with disease — have you ever thought, as to< you fell the lot to administer the healing draught, some deadly potion it may be, in excess; but, given for healing, drop by drop, as you measured out that potion when no eye saw you but the eye above, have you over thought: "What if I should give a few drops more ?" and has the thought well nigh paralyzed the hand j Ah! that " What if I should ?" was the first symptom of dethroned reason, which, in the prisoner, became the "I will" of insanity. You stood nearer to that dark land than you knew. You had entered that penumbra; thank God, he held you back. * * It is just because, upon the one side of this belt or border land, that shades from sanity into insanity, you will find much sin and a little insanity; while upon the other you will find much insanity and a little sin, that it is difficult for you to say whether this poor man walked within that shadow totally or not. If, in your minds, he was within the shadow, even by the slightest step, you must acquit. You need not wait until you lose him in the darkness, you need not wait until he passes through that penumbra into the lo 274 MODERN JURY TRIALS. blackness and darkness of total eclipse. If you doubt even where his steps were, acquit him. Acquit with a mute thanksgiving to Heaven that you are passing upon his case, rather than that he is passing upon yours. * * * Perhaps, after all, it is but a question of majority. * * * Now law is perfect, because it is universal in its application. But laios are imperfect for the same reason. The law of gravi- tation, as law, is perfect, because every atom in the universe is subject to it. Laws against crime are imperfect in operation, because every man is not like his fellow, not of equal strength of mind, nor able to control himself, as another might under passion or violent impulse. Therefore, you cannot reason upon a general basis. You cannot reason from your own consciousness. You can- not reason upon any hypothesis; but you must go back to the act, discover under what circumstances it took place, where, when, how committed, the condition of the actor. That is the test. Two men commit the same act; the one is a criminal, the other is not. * * * * q u1 . nacres are g0 j n harmony with the outer world, whether our moral or physical nature, that it is only so far as they act in harmony with and receive impressions through the outer world that we are responsible to law, either human or divine. The moment we lose the power of discerning between right and wrong, and of recognizing the consequences of action, that moment we cease to be responsible before the law. A person may often reason more satisfactorily when aided by illustration than in the abstract. Suppose everything had tran- spired that did in this man's life, up to the moment Charlotte Pridgeon met her death; his early life, injuries, disease, hardships, strange conduct, feeble intellect, love, jealousy; and that, goaded by her command to leave her, instead of plunging that knife to hex breast, he had driven it to his own heart; had died, and you were sitting as a jury to determine the cause of that death, would you hesitate one moment over the verdict — "Dead, by his own hands, while laboring under temporary insanity !" What is the meaning of this? Simply, that you reason back to the intent and motive, and not forward to the result. lie loved her. He loved his own life. Both loves are human. Would he have raised his hand against either, unless that hand played traitor, and rebelled against his head past all restraint? Who saw this deed done ? No other human being, save she who now lies in the narrow house, food for the worms. She knew why, TRIAL OF UNDERWOOD. 275 when, and how that blow was struck; but she passed away before her life blood was dry that had crimsoned his hands; yet did she charge him with murder ? No. Staggering into that house in her mortal agony, and with her mortal wound upon her, she said, " I am dying; some man has struck me." Those words strike you with peculiar emphasis; why did she not charge him with her murder ? Simply because " In that dread moment, when her frantic soul Raved round the walls of its clay tenement," seeking for escape, she knew she had put that upon him which had stolen his reason, and that he was not guilty of her death. Charlotte Pridgeon, dying, did not accuse the prisoner of her murder. Dare you do more ? She knew that during their short life together he bad been so kind, loving, generous, patient, for- giving, that in her dying moments these things pleaded "trumpet- tongued against the deep damnation " of such an accusation. * * These physicians tell us that love turned to jealousy produces insanity. This is true. It is not only the testimony of these medical men, but it is experience that tells you this. That prince of writers, of philosophers, metaphysicians, gives us the key to this when, asking the cause of Hamlet's madness, Ophelia tells her father, Polonius, of his strange actions. It seems as though the words were written for this very case. Polonius says — "This is the very ecstacy of love, Whose violent property, foredoes itself, And leads the will to desperate undertakings, As oft as any passion under Heaven That does affect our natures. I am sorry What ! have you given him any hard words of late ? And then she replies — "No, my good lord, but as you did command, I did repel his letters, and denied His access to me." And Polonius rejoins — "That hath made him mad." Did Charlotte Pridgeon repel his tenderness and deny his access to her that fatal night ? Did she lead him, from the beginning to the end of their acquaintance, a life of hope deferred, of love repelled, of devotion trodden under foot ? Did she not taunt him to distraction ? She stripped him of his earnings, of all means of making himself decent in appearance; yes, stripped him of his 276 MODERN JURY TRIALS. intellect itself. And yet they will tell you he was in his right mind ! * * * He tells you that when she bid him leave her forever, "It was all black and dark before my eyes, and I knew not what I did." Did he love her ? Close by that murderous knife, in its sheath, hung that pouch about his person. In that pouch was her picture. That picture and that knife met together. They kissed each other, when the knife was warm with her life blood. (Blood was found upon the picture from its contact with the knife.) And here is a poor little tattered scrap of newspaper that was in pouch that — a woman's pattern — carrying it for her. That speaks for itself ! Poor, childlike Underwood, carrying it for her. And here are the three letters she had written him; letters telling him to leave her; letters threatening a separation. And yet he treas- ured them, almost hugging them to his breast, always, everywhere, believing in her even up to that last mament when that darkness settled down upon him. And here is one of them, one of those that seemed to grapple him to her with hooks of steel: "Deak Willie: <<* * * j am lonely. I want to see you; but never mind, dear, I shall soon, see you, and for good. I think of you always. * * * You must not get discouraged. "Ever yours, "LOTTIE." [Ah ! She knew he was discouraged, did she ?] " A. kiss, and then good-night." Now, with these letters from her in his mind and on his person, burning to see and embrace her, with this picture there, this man met her on her return, and she met him — not with love or affection, but with taunts and sneers, and proof of infidelity during her absence, and his love curdled into jealousy, became mania, and he took the life that was to be no longer his. You have nothing more to do with her. I have nothing more to do with her. I have purposely kept her in the background during this trial. She has come into this case far enough to drag a fellow being to the verge of insanity and death. Your verdict cannot restore her to life. John Randolph once said that in all the voca- bulary there was no word like " remorse." Remorse is the mildew that gathers upon actions irretrievable, and gnaws the human life away. Remorse to-day, remorse yesterday, remorse to-morrow, remorse every day, till the grave receives him ! He may live, he may know what he is doing. He may take up the duties of an every- TKiAL OF VANDERPOOL. 277 day life and discharge them with a mechanical faithfulness; but he can no more enter into life than though he lay, as she lies, eaten of the worms. Tour verdict may acquit him, but it cannot save him. The jury acquitted him, on the ground of insanity. Under a statute of the State he was sent to the insane hospital in the State prison at Jackson, where, by the provisions of the law, he was required to be detained until an examina- tion as to the question of sanity could be made by the judge of the court who tried the case and the superintendent of the asylum. Underwood's counsel carried the matter to the Supreme Court by writ of error, claiming that such committal was void, because the act was unconstitutional, in that it imposed duties judicial in their character upon the superintendent of the asylum to be exercised by him at his own volition. This judicial power, it was insisted, the constitution vested in the court only. It was claimed that this was, prac- tically, imprisonment for an indefinite period, and might be for life. It was also claimed that it was not a proper exercise of the police powers of the State, in that it was an imprisonment, not to prevent a criminal act, but as a punishment for one already performed. After a full argument, the Supreme Court held the law unconstitutional. Underwood was released from custody, and returned to England. THE TEIAL OF TANDEEPOOI. Mrst trial, at Manistee, Michigan, January, 1870. Herbert Field and George Vanderpool, partners in a bank at Manistee, went into their office about noon, on September 5, 1869 and Field was then seen alive for the last time. They were last engaged in settling their business affairs, and apparently friendly. Both men were prominent citizens of a thriving frontier town both well known and generally esteemed 1 . Field's sudden disap- pearance, without any known reason, aroused suspicion of foul play, and within two weeks his dead body was found on the lake shore, about a score of miles from Manistee, with the skull crushed by a murderous blow and a rope around his waist that had been tied to some weight and sunk in deep water. Vanderpool had already been arrested, and the discovery was followed by a blaze of excitement throughout the entire State. A most formidable mass of circumstantial evidence was collected against the prisoner, and the winter following the tragedy he was tried on a charge of murder in the first degree. The progress of 278 MODERN JURY TRIALS. the trial was watched with intense interest. The list of witnesses included the most prominent men in that region. The evidence covered a long line of circumstances, the current of the river, the condition of the bank, the variation of clocks, the condition of patients under certain diseases, the acts of the prisoner — the case being based wholly on circumstantial evidence. The trial lasted nearly two months, and resulted in conviction and sentence to soli- tary confinement in Jackson prison during life. This termination of the trial resulted in wide-spread conviction that the feeling at Manistee was so intense that the prisoner did not have an impartial trial. Money was rapidly collected in all parts of the State to meet the expenses of a new trial. Eminent counsel were retained, John Van Arman and D. Darwin Hughes, who secured a new trial and a change of venue to Kalamazoo Cir- cuit. A prominent advocate, G. V. N. Lothrop, of Detroit, and Attorney-General May of the State appeared for the prosecution. Mr. Lothrop, of Detroit, had twice been nominated for the Supreme bench of Michigan, was a counsel of rare eloquence in jury trials. This trial was a battle of giants that acquired great celebrity in the entire Northwest, and resulted as will be later shown, in its order. It is claimed by the prosecution that shortly befoi - e the dismissal of the churches, on the Sabbath morning in question, George Van- derpool murdered Herbert Field in the bank. Together the two men went from the bank into the adjoining shoe store, after eleven clock, and procured witnesses of the instrument which they said embodied the dissolution of their partnership and the settlement of their affairs. Together they returned to the bank, and the theory of the prosecution is, that a few minutes afterward, as Field was sitting in front of the desk, marked upon the diagram, engaged in writing letters, Vanderpool came up stealthily behind him with some blunt instrument in his hands, perhaps a hatchet, and struck him in rapid succession two dreadful blows upon the back of the head; that Field at first convulsively sprang up or attempted to rise; that Vanderpool grasped him by the arm and dealt him the second stroke, when Field became utterly senseless; that the blood stained everything in its immediate vicinity; that the body must have been laid upon the floor, thus farther staining the carpet; that it lay there during all that afternoon and evening, until about nine o'clock, when Vanderpool, having spent the intervening time with his wife and friends, with every appearance of cheerfulness, entered the bank, changed his black clothing for some of Field's, stored in the bank, lifted up the dead man, carried him into the street, cle&cended, with the body, the long staircase to the landing, TRIAL OP VANDERPOOL. 279 attached to it a rope and weight, launched it into the river, in a row boat towed it down the stream to near the entrance into the lake, there sank it, returned to the bank, again changed his cloth- ing, which could then be hardly otherwise than stained with blood, and proceeded first to a physician's and then to his home, where his wife swears he slept throughout the night, peacefully so far as she was able to perceive. To support this theory is a mass of circum- stantial evidence, which will appear during the trial, and which it is not necessary to dwell upon now. Of course if it could be shown that Field was seen alive after noon of September 5, 1869, the theory of the prosecution fails, and this was the point against which Mr. VanderpooPs counsel directed their assaults. Herbert Field is supposed to have been a little over twenty-one years of age when he met his death, having been born in 1848, at Lewiston, Maine. His father's name was Stephen Field. Herbert seems from early youth to have been of a restless, active disposi- tion, prone to change, and while a mere lad met with several acci- dents, the results of youthful rashness, which put his life in jeopardy. At thirteen he left his home and roved about, visiting Washington, Richmond, and other cities of the South. He afterwards shipped as a sailor on a Government transport carrying supplies to the Union army at New Orleans. In 1863, when but fifteen, he sailed from Boston in the ship John Tucker, bound for a South Ameri- can and European voyage. In her he made a tempestuous passage round Cape Horn, the crew undergoing great privations. He then enlisted on the United States ship Lancaster, where he remained some nine months. Afterwards, in an English barque, he sailed to Liver- pool, thence to Russia, and was shipwrecked near Riga, losing all his clothing and a large amount of money in gold. In the autumn of 1865 he returned to Boston, and seemed to have given up his wan- dering habits and to be desirous of engaging in settled pursuits. He went through a course of study at the Commercial College at Auburn, went to New York in search of a situation, and finding none, made a voyage to the Caribbean seas again, as a sailor. Soon after his return he visited Lewiston again, and Miss Hill, whose name has often been heard in connection with the investigation of his murder, proposed to educate him, and he commenced studies at a literary institution, which, however, was soon necessarily abandoned, in consequence of his health failing under confinement. Both he and Miss Hill then removed to Manistee, and in Decem- ber, 1868, Yanderpool, who is supposed to have first met Field in Chicago, also arrived there, a co-partnership was formed, and the banking business was inaugurated under the firm name of " Van- 230 MODERN JURY TRIALS. derpool & Field," Miss Hill furnishing Field the money which he invested, to the amount of some $7,000. He was a young man of ve^r frank, engaging manners, and soon won the friendship of the entire town, being universally liked, though Vanderpool was gen- erally regarded as the better business man of the two. Field was quite talkative, even concerning business affairs, displayed money in his possession constantly, and was probably looked upon by the people of Manistee as somewhat young, thoughtless and inexperi- enced. I understand that George Vanderpool's early life was spent ,in Central New York; that he lost his father while quite young, but has a mother and brother living. He came to Michigan when a young man, was employed in several capacities in the lumbering trade at Muskegon, and acquired great skill in "running logs." He was in the army for a long time, and afterwards employed in several lines of trade in Muskegon. Shortly before going to Man- istee he married his wife in Central New York. Until the charge of killing Herbert Field was preferred against him, his general reputation appears to have been good for honesty, sobriety, ambi- tion to progress in business. It is supposed that when he entered into co-partnership with Field he possessed about S2,500 in money, a large part of which, however, he had borrowed to enable him to engage in business. The theory of the defense was an alibi, and lack of certainty in The People's testimony — no motive to kill Field, no time, that Field was alive and well when Vanderpool left him. Messrs. Thomas B. Church, B. M. Cutcheon and Geo. W. Bullis appeared for The People, and S. W. Fowler, E. E. Bene- dict and T. J. Ramsdell for the defense. The trial lasted three weeks. Experts from Ann Arbor testified as to the blood. The whole State and the Northwest took a deep interest in the incidents of the trial and tragedy. Men and women packed the court-room daily; newspapers heralded every word of evidence or point of counsel. The evidence was romantic. The prisoner's statement was over three hours long, and a full, complete and careful detail of all he did on the fatal Sunday delivered in a graphic and persuasive manner. On this was built the theory of his defense. He admitted taking up the carpet and burning part; said it was filthy and worn — stained; that he had the nose bleed, and Field cut his finger in a scuffle; that he was sick and chana-ed TRIAL OF VANDERPOOL. 281 clothes in consequence; that they settled, and Field left at mid-day; that he was innocent; that he feared lynching when he made the " pin letter " as a ruse. Very many witnesses were examined; some on slight circum- stances, and more as cumulative evidence. Counsel were untiring in their zeal and acute in the arts of reasoning away and account- ing for circumstances. Gen. Cutcheon's argument was most graphic and inspiring ; Mr. Church's the most impressive ; Mr. Fowlek's the most pathetic. But as arguments are given still later of men even more renowned, that part is at present passed with a brief quotation from Hon. Byeon M. Cutcheon's remarks: " Moral certainty is not absolute certainty." It is not the exclu- sion of all doubt. It is that certainty that convinces and directs the understanding and satisfies the reason and judgment of those who act conscientiously upon it {People v. Webster), that leads us to act in the gravest concerns of life in our own affairs. One year ago Field had a capital of 17,000; Vanderpool $2,300; bankers on a slender capital. They become dissatisfied. Field commenced to draw out. Vanderpool distrusted him. He took his money home to keep it nights. He changed the combination lock. He claims Field as a defaulter. But two men swear the books were tampered with. Friend saw them Saturday; Ellis on Monday. They were changed, $400 to 1400; $700 to 1700. Here was the motive. He admitted the forgery. Without the for- geries, Field had a credit of $3,679.38 on Saturday night. The greed of gain and fear of ruin made the motive. It was Vander- pool. The opportunity was ample. They were alone; curtain down. The means was the hatchet. It was marked with blood and fitted the wound. Field was seen going in and never seen out alive again. There were his shirt cuffs, his envelopes, letters, papers, pocket-book, books with forgeries, and human blood! Blood on the floor, on the carpet, on papers, on stairs; cracks of floor were filled with blood; covered all over with fresh ink! Where is the carpet? Burned! Where the clothes? Burned! By whom? Vanderpool! From the bank he went with Field's clothes on; in the bank was found the bloody spots; in the bank the charred remains of carpet, pants and vest and shirt! At the bank and clean- ing up was Vanderpool on Monday before the dawn was. From all these facts but one inference is drawn : that Herbert Field was murdered in the bank, and George Vanderpool knew it, for he was there. He cleaned the blood; he cut the carpet; he scrubbed the floor; he burned the hay and carpet. The destruction of evidence of a crime is confession of crime. 282 MODERN JURY TRIALS. They say he was cheerful! But " One may smile and smile and be a villain." We can see him enter, change his clothes, lift the bloody form, take it to his boat, tow it down the stream to the lake, cut loose, and let it, weighted, fall to the depth below. A little eddy, a gurgle, a ripple, and farewell to Herbert Field. A grey-haired mother may wait long his coming in the far-off sunrise, bnt in vain. The bloody floor cries Murder ! The bloody carpet says Murder! The bloody finger marks say Murder! The ink marks, carpet, false entries, a guilty conscience, through a guilty face, say Murder! The human hulk is drifted fror its anchorage ; wind and wave and current fights the guilty man. The hulk is stranded on the yellow sands. The hands all helpless, eyes once full of life shall see no more; the lips are cold and dumb; the tongue is silent. But these are talking all at once; they speak an awful language. They tell the dreadful deed! The jury said guilty, and Vanderpool was sentenced to a life confinement in Jackson prison. But a new trial was granted, and a change of venue to Kala- mazoo. THE SECOND TRIAL OF VANDEEPOOL. The facts of the first trial being familiar, nothing new need be added to carry the reader through this intensely interesting inquiry. After the conviction and excitement of the first trial, the public took sides. A change of venue was had to Kalamazoo cir- cuit, where a most exciting trial took place, lasting nearly thirty days, and resulting as will later appear in this report. Experts from Michigan University to analyze the blood; learned counsel from abroad, and the deep mystery of the trial, attracted vast crowds to the court-room and made all proceedings intensely dra- matic and interesting. It was clearly a battle of f/iants from the first. Hon. G. V. N. Lothkop, the leader of the Michigan bar, an advocate of rare attainments and legal accumen, appeared for The People, with Attorney- General May; and John Vast Abman, for the defense, assisted by D. Darwin Hughes, of Grand Rapids. TRIAL OF VANDERPOOL. 283 Mr. Lotheop is six feet high, nearly 65 years of age, erect, strong, hair turning gray; short, closely trimmed beard, with the air and dignity of a Senator. His commanding manner, his -well- rounded periods, his fluency of speech and excellent choice of lan- guage, never over-reaching in his argument, give him force and elegance of expression and make him a counsel of great influence with courts and juries. Throughout this trial he bore himself with a quiet dignity, and closed with an appeal most touching and graphic, that seemed to lift the walls of the building and reveal the murderer in the midst of his horrible crime. He never turns to wit or lowers himself to become personal or answer side allusions. The argument of D. Daewin Hughes for the defense, on the twenty-third day of the trial, was the most ingenious and artful effort of all. With no attempt at eloquence, but a plain, candid business-like statement, enforced by an earnestness and dignity of manner at once convincing and effective, he held the attention of the jury nearly two days in various propositions, tables and illus- trations, placing the defense in its strongest light and plausibly explaining every occurrence that pointed to guilt. He commenced by an exhaustive review of the testimony, of the danger of circumstantial evidence — how it often led to conviction and punishment of the innocent — how it seems to surround one in a network of trouble, all of one direction, when a single break might apply all facts to other parties and leave the accused to freedom. He doubted that the real Field's body had been found! He considered the evidence very weak on identification. He went over each item of evidence in detail, as to the burning of clothing, accident of the spitoon, spots of blood; paid a high and just tribute to the fidelity of the prisoner's wife in his deep distress, and bitterly denounced Gen. May's attack on the defendant. In this review, as in all his argument, he measured his sentences and weighed his words with precision, and they fell with weight upon the jury. "I need not tell you, gentlemen," he said, "that the circumstances must not only all be consistent with guilt, but inconsistent with innocence, to convict this defendant/" He analyzed the question of blood on the floor with great thorough- ness, and announced, as a proposition, that there was no blood on the floor of the bank, in guilty quantity, if at all. He argued, 1. That the blood might come from natural causes— the teeth, the nose, the dog — that a few drops in filthy water would greatly magnify its color; that the doctors disputed whether it was blood 284 MODERN JURY TRIALS. or ink — whether it was from a fish or a man ! While from the testimony of Dr. Ellis, such a wound as Field received would have produced two quarts or a gallon of blood! 2. This amount left, then, at twelve o'clock Sunday, until five on Monday morning. Yet the floor was not wet, and no blood had then been noticed. Vanderpool was sweeping out dust and blood by the quart, unnoticed by the sheriff! Impossible. 3. In seventeen hours it would have run down through into the basement, while nothing of the kind was discovered. 4. No one saw it when fresh, and only found it by magnifying glasses, with nothing like stains on their hands from any color. They were magnifying a great uncertainty! 5. All that was seen on the floor, carpet and wall may have been the contents of a spitoon, and it was wonderful that nothing did disclose human blood corpuscles to a certainty. 6. If there had been blood, Secor would have seen it. 7. It would not have been cleaned in an open manner. 8. The water would have left traces on the floor. 9. The blood would have stained the sidewalk. 10. The cleaning itself was not suspicious. It was a new busi- ness. It was a proper occasion. It needed cleaning; it needed a new carpet. 11. The time was not unusual; it was early, but required to be early. Hurd was going to his store, Wilcox to his office. Visitors would soon be coming in. It must be done early and not interfere with business. 12. Tt was openly done, in plain sight, in the usual way. The carpet thrown out on the walk. Hopkins was there at six, Secor a half hour later. The cutting of the carpet was to take it from the safe and the stove. It was unavoidable. 13. The ashes in the stove disprove the blood. The prisoner owned he burned the papers and clothes. He did not burn the carpet until Wednesday. The "bloody carpet" in the bank up to that time ! Would not a murderer have seen that the fire did its work more effectually? 14. The testimony of Ramsdell as to the time he left the store and rattled at the bank door to get in, that there were four persons in hearing, had Vanderpool attempted the deed — not a wall, but a thin partition between — he must have selected a busy hour, high twelve, for murder! Do you believe, gentlemen, that, having murdered Field, he put on his clothing and made no concealment of the fact? The thing is improbable. The theory of the prose- cution makes him use violent means to murder — to use it in the TRIAL OF VANDERPOOL. 285 hearing of four men. There was a scuffle in the bank, a rattle at the door. It all ceased; but all this is explained. 15. The bank door was open all that Sunday afternoon. Mrs. Scribner saw it open at four; Ford confirms her. He says it was half open at that hour. 16. While a hatchet was in the bank, corresponding to the wound on the head of the body found, there is no evidence that it was bloody, or showed any marks of having been cleaned; but such evidence is shown to be wholly wanting. If Herbert Field was killed in the bank, he was killed by that hatchet. That is the very instrument one would select as the one a murderer would use. But we have demonstrated that it could not have been used and not show some signs or marks, and I say that circumstance alone is a vindication of Vanderpool. They must repudiate the hatchet or acquit the prisoner. 17. There was no blood of suspicious quantity on the sidewalk, stairs or platform where the body must have been taken to reach the river. And the time allowed icas too short. I have drawn up a table; I have figured closely on the prisoner's movements, as shown by the evidence. He left the house at 9.30 and returned at 10.55 — eighty-five minutes gone altogether: MINUTES. Walking to the store 5 Walking to Ellis House 3 Walking to the boat 5 Walking from the boat 5 Erom the boat to the store 5 Back to the. bank to let in the dog 5 Going to the shop to look in 5 Going for the medicine : 5 Going to Dr. Fisher's 3 At Fisher's 15 Going home g Sitting on lumber pile near Times office 5 Before starting 5 71 This would leave him fourteen minutes to spare. It would take five minutes to reach the bank; five more to go to Tyson House; five more to see that the coast was clear; ten to get a boat ready; five to get the iron for anchor and fasten to the body; five to light up and change his clothes; ten more to get the body to the boat; five in boat; thirty to row down the stream; five more to care for the boat on his return; five more to change his clothes; five more to go to Fisher's; twenty that he stood there — 120 minutes in all, 286 MODERN JURY TRIALS. Thus he lacked thirty minutes of time enough to do the deed; and this is the most probable story. Then his appearance on Sunday did not indicate guilt. In the one instance he must have nerve enough to commit a crime, and the next breath look as if he had the cholera. How would they have him look if innocent; how, if guilty ? Had he committed the murder at 12 o'clock, he never could have lived through that after- noon out of sight of the bank, and move the traces of the ugly crime. In the afternoon, he goes to meet his friends at the boat. He is talking with sheriff Secor. Where was his anxiety to get rid of a body ? Of all the weak theories the weakest is, how to dispose of the body. While at the hill, Mrs. Vanderpool says, " there comes Field !" But he was not confused. Put yourself in his position. By their theory he had just murdered Field. Do you suppose that, if Vanderpool had murdered Field, and the dog saw him do it, then the dog comes along; he had been in the bank, and if Vanderpool did it, he would go to coax him back. Would the dog come for assistance to the master's murderer ? Vet they say he came and played with Vanderpool. He looked pale on Monday. Had he not been pale all the week? His sickness accounts for that. They say he wrote the Brown- Nolan letter. That is against him, but it is impossible to tell what one will do in the face of such public sentiment. In Lord Coke's time a man was accused of the murder of his niece; he had been last seen whipping her. She had said, "Dear uncle, do not kill me." He was told if he did not produce the girl, the trial would take place. He employed a girl to personate the niece, but it was detected; he was convicted and hung. Two months later the real niece returned from a neighboring county, where she had fled for protection from her uncle. They allege that he said they would find blood on the carpet, when nothing had been said about blood. Durham says Conover had pointed to the blood. He laughed when they told him in jail that Field's body had been found, and said, " You can't make me believe that." But his conduot was consistent throughout. He had dissolved. He went to his bank, found it in confusion, and he cleaned the bank. Field was a reckless bookkeejjer and no manager. The books showed $2,000 more assets than liabilities. He had no motive to kill Field. He had a promise of capital from a relative. They are forced to say he did the deed for money. No money has been found except 8 100. This they call stolen money ! It is not identified. It belonged to Vanderpool as much as to Field. Think- TRIAL OF VANDERPOOL. 287 ing of necessities — a run had been made on the bank and all the cash drawn out — he put some gold where his wife could find it. If he robbed Field, what became of the money? Field was his friend. Did he murder him for money ? How preposterous ! Who was. the man in the boat ? Here is a mystery. A man in white in the boat, out on the lake. They say Vanderpool. But there is abundant proof it was not this defendant. He was not •dressed like him. The man in the boat had on light clothes. If he changed for Field's clothing, why was it not marked ? Which suit was it ? Why not wet or soiled with blood ? Why would he whistle for his dog ? Why would he have remained in the boat till Fralich approached within a few feet of him, with the dead body in his keeping? I have attempted, gentlemen, to show that these theories are inconsistent with guilt and consistent with innocence. Our theory is, that George Vanderpool did not kill Herbert Field. We have a complete alibi. We admit they were together on Sunday noon in the bank, but say no murder was committed there. They were there as friends, not to commit a horrible crime. Field was alive after the prisoner left the bank. He was seen by three witnesses, whom you have heard — -Mrs. Springer, Charlie Springer and Mrs. Lot. They cannot be mistaken. All efforts corroborate rather than impeach them. The People must establish their case to a moral certainty, and how preposterous their story is. You must accept these explanations when they are so reasonable and so estab- lished by evidence. Gentlemen, I have performed my duty; it remains for you to perform yours. Mr. John Van Armas - , of Chicago, spoke for the prisoner in a labored effort of nine hours, during which he seemed intensely in earnest, and at times quite severe in his attacks on the People's case. He is peculiarly suited to criminal defenses. Of strong, thick-set German frame, smooth, pale face, strong lungs and iron will, full of ingenuity and experience, he carries his client's case through the courts with a determination to win. He said to the jury: None of us can understand this case but the one in danger. We cannot rid ourselves of a coolness in the concern of another. But one has already felt the chill and darkness of that dread place which your verdict, if unfavorable, will consign him. A year ago and his condition was as fair as yours. He was not rich, but riches are not needed to be happy. He had his home and the respect of his neighbors. What more could he desire ? But on a sudden, in '288 MODERN JURY TRIALS. the midst of fair prospects, his once quiet town resounds with the cry, " Field is murdered by Vanderpool !" From that time two parties arose in that town. In a day or two the body was found in the streets of Manistee. Then he was tried, not by a jury, but by the populace. He was taken to a prison cell. His wife turned from their home, in the bitterness of desolation, in the depth of despair. * * You may have heard the ques- tion, " If Vanderpool did not kill Field, who did ? " Field is dead; the rope and body are both found in the river below. Of the three thousand five hundred people in that village, who was less likely to do the foul deed than he ? Being in the bank does not show guilt. It was day. * * * Where is Field? I can- not call upon the great deep to give up its secrets. I cannot call back the ghost of the departed. But if I could I would. I would call him back from this untimely taking off and bid him, with his cold, blue lips, reveal the truth ! And you would see where guilt is charged innocence remains. * * * I do not desire to appeal to your sympathies. I claim his discharge as a matter of right. I insist upon this whatever your opinions were. Although you saw strong circumstances of guilt, I beg you to think that it is not a difficult thing to array circumstances which would as readily apply to the real offender were he obtained. Followed, as I shall be, by a man of eminent genius and talents, I warn you to remember that I have explained each and every circumstance in the light of reasonable innocence. But you must pause and analyze the consequences of that con- viction he would force upon this respondent ! Be sure, and be guarded, and be not deceived by undue weight attached to facts by the acumen of counsel interested to convict. I ask you to use your own judgment, to make new applications of facts for your- selves. The respondent is entitled to the clear, unbiased individ- ual judgment of each and every juror and each and every doubt. And, if he is convicted, and that conviction is wrong, and sometime hence it should be found that after all he is innocent, and in con- sequence of this terrible doom that you have inflicted upon him, reason should have tottered on her throne, and from being a bright 3 r oung man, in the flower of his usefulness, he should become a raving, driveling idiot, and that wife, whose sorrowful face has looked in your eyes for the last four weeks, had gone down, heart- broken, to an early grave, it would not be one twelfth part of this wrong to you, sir, but to you, and to you, and to you, will lie this crushing weight, upon your conscience, in your slumber and your TRIAL OF VANDERPOOL. 289 ■waking hours, preserve to the day of your death, to upbraid your conscience with a sense of its dreadful wrong ! As a convenience to his own, no unwillingness to encounter a protracted session should obtain, and no anxiety to get home will excuse, until each -juror reaches his own sound judgment from the argument of counsel and the evidence in the case. If he does short of this, he violates his conscience, and that will whisper to him often, when alone, as he lies down at night and rises in the morning, if he has done a cowardly thing and violated the laws of the land. I cannot speak to you of the terrible consequences of a verdict of guilty. In contemplating that I must think of my own wife, my own family, and how such wretchedness upon one once so happy, and then so miserable. You too have faithful wives and children. You will think of them, not for the purpose of overcom- ing your reason, not of swaying your judgment, but for inclining you to pause and think solemnly of the work we are engaged in. Remember that a man's liberty and the light of heaven that now shines upon him are as pleasant and dear to him as they are to you, and that a verdict of guilty, if pronounced against him, shuts him out forever from them all. If compelled to do this, do it sadly, unwillingly. But I solemnly believe, when you do your whole duty, and give him the full benefit of the doubt which these strange circumstances of this mysterious case have left, I beg you to do it, and when you stand for judgment on your own account, the deed shall smile by your side, and, like an angel, plead trum- pet-tongued for your acquittal. Mr. Lothrop's manner was in striking contrast to his opponent. His rounded periods, his impressive words, his straightforward manner, attracted every eye, riveted every ear, and carried convic- tion to every heart. But still, as in his graphic way, he set forth Field's good and loving disposition, his winning ways, his cow- ardly murder that left his murderer beyond human sympathy. During such passages the accused looked hard at the table by which he was sitting. Mr. Lothrop spoke with terrible earnestness of the facts that pointed to the prisoner's guilt. The audience gazed in silence and listened attentively to every word. He said : I know nothing, gentlemen of the jury, of your impressions or prepossessions in this case. Each and every one of you were and still are entire strangers to me, but I assume that you came pre- pared to hear and determine this case on the evidence, and I ask no 19 200 MODERN JURY TRIALS. more. I shall seek to hold you to the forms and rules of evidence already mentioned in your hearing. It is indeed your duty, each one of you, to come to this case as an individual, but faithfully to confer with each other and reach your conclusion after a full and fair conference. Indeed, after all of this, if after all fair effort, with due respect for personal pride of individual opinion, in a fair conference of reason, you fail to agree, then I concur — but not till then — that it is your duty to stand. But bring with you the whole stock of your acumen and understanding before you reach a conclusion that you have dis- charged your whole duty. * * * We all remember that Herbert Field, on the fifth of September, '69, disappeared, and by no accidental circumstance. We know it was no eccentricity of youth. We know he was murdered ! and a murder so detestable, that even the cold and impassible nature of my friend was compelled to pronounce a cowardly murder. * * * There was not a living soul that I know of in the world, stand- ing in more social relation with him, that was notfriendly to young Herbert Field — a boy just verging into manhood, with hopes and impulses, noble, lovable and generous. Who could seek to do him wrong ? The doors of the best families open to him in Manistee. The best men for his associates. Suddenly, as if it were the going out of a light, he disappears. It is found when the body comes to light he was taken unawares. A cowardly assassin had quenched all the glory of his young and hopeful life by a blow with a hatchet or weapon in his skull from the rear ! Now, gentlemen, if ever there was an inquisition for human blood it is to be made in a case like this. The people of the State cannot afford that such a cowardly murderer as his go unpunished. Sympathy ! Sympathy for whom? There is one place where it should never enter — the jury box and the judge's bench. He may have friends, relatives, wife and children, but so far, gentlemen, as operating to shield, it only makes his crime, if guilty, more detest- able. " He who has a wife and children, has given hostages to society!" * * * * The burden of proof is on the People, and their evidence is cir- cumstantial, say our friends ! True. But not one day of your lives do you live without relying on circumstantial evidence. Tou cannot walk a block without meeting circumstantial evidence in common affairs. You got up yesterday morning, and saw snow. It was snow as surely as if you had seen it fall. You know it fell. It is here as a fact. You may see on it the track of a cat. You TRIAL OF VANDERPOOL. 291 know that a cat has crossed in that direction. A man drives up with a horse covered with foam. You say he has been driven rap- idly. You see he is shod. It is the work of a man. You did not see the shoe nailed on. This evidence is all circumstantial. An able author has written a book citing eleven hundred strange cases of conviction on circumstantial evidence, and one — only one — wrongfully convicted ! Our friends name the Parkman and Webster case, and try to show that the body of Field may not be Field at all. But Dr. Parkman's body was cut to pieces, limb from limb. The head was never found. It was consumed in a crucible, smelting every- thing that was ever put into it. But even this left traces of detec- tion, for the work of the dentist refused to give way to the heat in the crucible, and the murderer was convicted. * * * * No motive ? Field had been trying to sell out and go into other business. He had drawn five hundred dollars, and this did not please Vanderpool. Paper was falling due. Vanderpool needed money. Why he said, " I am taking my money home every night and sleeping with my revolver under my pillow." Afraid of Field, the boy ! A revolver for him ! Here is just the motive. A division, a wrangle. * * They come together on Sunday. They execute papers. They are in the bank alone. That money taken from that bank may cripple the bank. Credit is low, money is scarce. The fatal time has come. A muffled noise is heard, and then all is still. In a half hour the defendant goes out of the bank clothed in the pantaloons of Field. He has Field's dog with him. He stays during the afternoon with his friends. Night comes, and for a time he disappears. He has gone from their sight. Morning comes, and finds him in the bank so early as to attract attention. He cleans the bank, removes the carpet, burns a portion, scrubs the floor. In a little while it is rumored that Field is gone ! He instantly charges he has run away. Suspicions of blood are seen. He is arrested. A few days later the body comes ashore. It comes to tell how Field was slain! He manufactures a letter, pricked with a pin, in jail, to show two sailors did the deed for money. That is detected. * * * * I repeat that these facts speak in unmistakable language of his guilt. They tell a story that cannot be disputed, even though one rise from the dead. Murder, though it hath no tongue, yet shall it speak a miraculous language. All of the mist rises up before us here, the obscurity that surrounded the case has disappeared. It seems as though the walls of that bank were lifted up and the bright light of that September sun should stream in, and there, 292 MODERN JURY TRIALS. gentlemen of the jury, in the light of all this evidence, you see, standing over the body of his prostrate victim, his hands dripping with his blood, the murderer of Herbert Field. It is not I, gentle- men, who say this. It is not I who condemn or convict this man. It is not you who condemn or convict, but that inscrutable Provi- dence that pursues rightfully the path of the transgressor. It is that almighty power that no human cunning can overcome. The very stones cry out against it. Gentlemen of the jury, in the name of that innocent blood, of that young life so cruelly slain, in the name of The People of the State, I ask at your hands the verdict of Justice upon the murderer of Herbert Field. The jury stood nine for conviction, three for acquittal. THE THIED TEIAL OF VANDEEPOOL. After the disagreement of the jury on the second trial in the Kalamazoo circuit, the venue was changed to the Barry circuit, and the case came up for its third trial in August, 1S71, before Judge Hoyt of that circuit. The State was represented by E. S. Eggleston and Thomas B. Church, of Grand Rapids. The prisoner was defended by D. Darwin Hughes, of Grand Rapids, and Henry M. Cheever, of Detroit. The trial commenced on the eighth of August, 1871, but several days were consumed in obtaining a jury, so that it was the fifteenth of August before the introduction of testimony began. The trial lasted twenty-seven days, amid most intense excite- ment; the court-house in the city of Hastings being crowded from day to day; the audience filling not only every seat, but every available standing place. The arguments of counsel occupied five days. PERSONNEL OP COURT AND COUNSEL. Birnet Hott, the judge of the court, was but thirty years of age at the time of the trial. At the outbreak of the rebellion, he entered the army as sergeant of Company A, 5th Michigan cavalry; TRIAL OF VANDERPOOL. 293 participated in the battles of the war; rose to the rank of captain, and, upon his return from the army, passed through the law department in the University of Michigan; was admitted to the bar in 1867, and entered upon the practice of his profession in Grand Rapids. He was elected judge of the Barry circuit in 1869, and this was among the first cases tried by him when on the bench. He showed, throughout the trial, a clearness of judgment and impartiality in his rulings, and ability in discrimination in the points presented by counsel, which commended itself to the public and the bar. E. S. Egglestou, junior counsel for the prosecution, born in Batavia, New York, in 1825, graduated at Albion college in 1849, was admitted to the bar in 1851, and soon after became a partner of Judge Withey, now of the United States district court. He had been prosecuting attorney of the county, was United States consul at Cadiz, Spain, during the war, and had become one of the most prominent members of the bar of Western Michigan. Thomas B. Church, senior counsel for the prosecution, was born in Massachusetts in 1820; graduated at Trinity college, Hartford; came to this state in 1842, and began practice in Grand Rapids; had been a prominent democratic politician; filled the office of prosecuting attorney; was a member of the state legislature, mayor of Grand Rapids, member of the state constitutional convention, and a candidate for congress on the democratic ticket. He con- ducted the first trial on the part of the prosecution, and it was due largely to his ability and the management and preparation of the case that a conviction resulted. He is regarded as one of the ablest advocates and criminal lawyers in Western Michigan. Henry M. Cheevee, junior counsel for the defense, was born in New York State, in 1832; graduated at Michigan University in 1853, when twenty-one; studied his profession in the city of Detroit, when twenty-two; commenced practice in 1854; avoided all political life and devoted himself exclusively to his profession. He is tall, slim, with brown hair and beard. As a lawyer, Mr. Cheever holds to-day a rank with the first at the bar. He has the rules of evidence at his finger ends, and has studied thoroughly the decisions of our Supreme Court, which are rapidly becoming a great body of laws, covering cases of almost every description. His cross-examinations are the admiration of his professional breth- ren, and the terror of untruthful witnesses. He has a way of stripping falsehood of all its covering and showing it in its naked 294 r MODERN JURY TRIALS. deformity. His arguments are uniformly good. He never talks for the sake of talking, and arranges what he says in a concise and logical form, that makes it exceedingly hard to break through. He never repeats and never becomes tedious; having that rare fac- ulty of always knowing when to stop. D. Daewin Hughes, senior counsel for the defense, was born in New York state, in 1823 ; admitted to the bar at twenty-one; practiced his profession in Marshall a number of years, and moved to Grand Rapids in 1869. He devoted himself exclusively to his profession, keeping entirely aloof from politics, and ranks among the ablest lawyers in the state, as a counselor and advocate, both in the Supreme Court and the trial of cases before a jury. He is one of the most skillful and able of criminal lawyers, and justly stands at the head of his profession. The evidence elicited and arguments produced on this trial ren. dered it celebrated. Resting entirely on circumstantial evidence, it was one of the most remarkable cases in the criminal annals of the Northwest. Intense excitement prevailed throughout the state during the trial, prevailing sentiment, however, being in favor of the guilt of the prisoner. The evidence for the prosecution was the same, substantially, as it had been on the two previous trials. The defense differed radically from the defense on former trials, with new and other testimony of great importance. A remarkable feature of this trial was the attendance in court, from day to day, of Mrs. Field, the mother of Herbert Field, who it was alleged had been murdered. She sat most of the time closely veiled, and also was closely watched by officers, as it was feared, and with reason too, that she might attempt violence upon the man who she believed had murdered her son. Upon entering court, the first day, seeing one of the officers, who she supposed was Vanderpool, she stepped in front of him, and raising her hand to Heaven, exclaimed, "Where is my son; where is Herbert Field ? Oh, wretched man !" Again, at the close of the trial, as the counsel for the prisoner were leaving the city after they had taken passage in the carriage which was to convey them to the depot, she stepped up and exclaimed, " The blood of, my son is in Michigan, and will yet be avenged upon Van- derpool and his defenders ! You will have your share of the pun- ishment, and I shall meet you at the judgment !" The prisoner was attended throughout the trial by his young and TRIAL OF VANDERPOOL. 295 beautiful wife. She sat by his side day after day, in the court during the trial, and occupied the cell with him in the jail. Van- derpool himself, like other prisoners known to tradition and history, found, while in jail, not his flower, like Picciola, but a pet in a beautiful white kitten, that strangely came to his cell on the very day of his incarceration, and remained throughout the entire trial, refusing to stay anywhere else, and left as soon as he was acquitted. The prisoner was an educated man, with talent for drawing, and his cell was adorned with drawings and etchings from his own pencil. The theory of the prosecution, that Field had been murdered in the Manistee bank between eleven and twelve o'clock at noon, and that, during the early evening following, the prisoner had removed the body and all evidences of the murder, which had not been combatted on the former trials, was repudiated by the defense upon this. Taken in connection with the new branch of testimony, as to the finding of a strange boatman adrift in a small boat some two weeks after the disappearance of Field, and at about a place in the lake from which it was insisted the lake currents and the winds would have carried the body, placed the disappearance of Field at an entirely different time. This new theory of the defense was one of the most interesting points of the hotly contested trial. During the days in which the jury was being impaneled some amusing incidents occurred; one of the jurors, on his examination, having admitted to have read one of the counsel's arguments on the former trial, was asked by Mr. Hughes, "Why didn't you read mine?" To which he replied, he missed that number of the paper. " He can congratulate himself on that loss," said Mr. Cheever. " Yes," responded Mr. Hughes, "I had to read it, and I know." Another being asked how long he had lived in Barry county, answered nine months; and that he had lived twenty-six years and one month before that in Eaton county. He was asked, " How old are you ?" and answered "Twenty-six." "Twenty-six!" said Mr. Church, inquiringly, "Twenty-six years and one month in Eaton, nine months in Barry, and only twenty-six years old; how do you make that out, sir ?" "Oh!" said Mr. Cheever, "He does not count the time he spent in Barry county as a part of his life." The testimony of the prosecution was substantially as on the former trial. That Field and Vanderpool were partners in the banking business, in Manistee, until September 4, 1869, Field hav- ing seven thousand and Vanderpool two thousand dollars in the business. That Field had become dissatisfied; that both were seen 296 MODERN JURY TRIALS. to enter the bank together about eleven o'clock Sunday morning, September fifth, and Field had never been seen alive afterwards. That September seventeenth Field's body was found on the beach of Lake Michigan, near Frankfort, twenty-five miles north of Manistee. Field had been living with a maiden lady named Rachel Hill, whom he called aunt, and who had loaned him his banking capital. Monday morning, September sixth, between five and six o'clock, Vanderpool was seen washing out the bank, and when he was asked as to Field, said he had run away and taken some of his (Vander- pool's) money. Large portions of the carpet had been cut out and burned in the stove, shreds being found therein; the floor where the carpet had been cut out had been scoured, and was wet; Van- derpool acted confused during the day, forgot the combination of the safe, and could not open it; and drops of blood were found just outside the bank, leading down some steps to the river. This blood, expert testimony said, was human blood; which testi- mony had never been contradicted or explained until this third trial, by the defense. On that Sunday evening, parties coming down the river in a canoe heard a splash in the water and saw a person crouching in a white boat and paddling down stream. During Vanderpool's imprisonment, it was shown he had written letters to prominent people in Manistee, giving them to his wife to be mailed in New York, purporting to be signed by one Nolan, stating that Vanderpool was not guilty. Red spots, claimed to be blood, were also found on the carpet which was not destroyed. A newspaper with three bloody finger marks on one side; a hatchet, cracks in the floor, moist with a red substance in them; and some human hair adhering to the newspaper were found; the body had a fracture on the head; it was found with a piece of rope tied with a sailor's knot about it, with a slip noose, as though a heavy weight had been attached and had worked loose; on the left arm of the body found was an India-ink tattooing; the pants on the dead body had the name of Herbert Field upon them; the body had a ring, identified as Field's, and a twenty dollar gold piece which he had been seen to have. It was shown that, on that Sunday evening, about ten or eleven o'clock, Field applied for medicine at a physi- cian's, saying he had a diarrhoea. The bank books showed altera- tions under date of September 1, 18(39; in that money drawn by Field that day, seven hundred dollars had been altered to seven- teen hundred, and in another place four hundred had been altered to fourteen hundred. After Field's disappearance, Vanderpool showed a receipt acknowledging full satisfaction, and a dissolution, signed by Field. TRIAL OF VANDERPOOL. 297 The prosecution called Jackson B. Wilcox, a dentist who occu- pied rooms over the bank at the time of the murder. He testified to having been also early up on Monday morning, and having seen Vanderpool at the bank; to having seen blood on the steps at the side of the bank leading down to the river. On the testimony of this witness was founded one theory of the defense on this third trial. On cross-examination the witness testified that when he •went down the steps at the side of the bank he walked on the opposite side from the blood spots; that he had been a traveling peddler; traded horses; had been living in many places, a short time in each ; that he slept in his office on that Sunday night of the dis- appearance; that he avoided the blood spots because they struck him as unusual; that on Wednesday following he was under the bank building; that others were digging; that when others came in to dig, hunting for signs of the murder, he went to a widow's near by and asked her to let him saw wood, telling her he wanted to get away from the bank building that afternoon; did not know that he told her why, ..but said he wanted to be in the woods, out of the way of the people; asked the, widow if she thought Field was mur- dered or had run away; that he asked the widow to let him out at the back door of her house. On the part of the defense the following new testimony, not introduced on former trials, was given : A Mrs. Dunlap testified that she saw the dentist, Wilcox, on the Monday evening following Field's disappearance; she asked him if he knew that Field had disappeared, and he said no, he had not heard of it; but perhaps he had been drowned or tipped over on Lake Michigan. (The cross-examination of the dentist had already shown that Vanderpool had told him of Field's disappearance early Monday morning.) On the part of the defense the question was then raised as to their right to read the testimony of several witnesses, given on former trials, but who were now out of the State. After a full argument of the question, the court admitted the testimony on the behalf of the defendant. Testimony was also introduced as to the physical incapacity of Vanderpool, by reason of a hernia, to dispose of the body of Field as claimed. The defense then offered another branch of the new testimony upon this trial, putting upon the stand one Captain. William E. Smith, who testified that he was captain of the schooner Crawford, plying between Buffalo and Chicago; that he sailed from Chicago 298 MODERN JURY TRIALS. September 14, 1869, and passed twelve miles off the mouth of the Manistee river; that on the fifteenth he saw a small white boat with a man in it, about a mile to starboard; that, thinking the man was in distress, as the sea was rough, he altered the schooner's course for him; that when within thirty feet of the small boat, the witness hailed him and asked him if he wanted to come aboard of the schooner, but he made no reply. He was evidently iD distress, was sitting on the bottom of the boat, with a small piece of board in his hand; the boat was without sails or oars; that he threw him a line, which the man caught, and told him to move to the bow of the boat or he would capsize her, but he paid no attention to the request; the schooner's hands hauled him alongside and took him on board; on taking him in, the small boat that he had been in was capsized; and witness told the hands of the schooner to save it, and the mysterious man then, for the first time, spoke, saying, "Let the boat go to hell; I have had enough of it." The strange man was taken into the cabin of the schooner, and changed his clothes. When taken on board he had on a coat and pants, but was barefoot; he said he had been out two clays, came from Big Sauble point; and he ate ravenously. The witness offered to land him at Macki- naw, the man refused, and said he did not want to go back to the State of Michigan; said he got blowed off from the shore. The witness asked him if he had any money, he said no. Witness, up to this time, had not heard of the disappearance of Field; witness carried the strange boatman through the Straits of Mackinaw around to the river St. Clair; that a tug which towed the schooner stopped to wood on the Canada side, and the strange boatman got on to the tug and went off down the St. Clair river; the tug was the George JV. Brady. The strange man said his name was Jacob. The cross-examination of witness failed to shake him in the least. The next witness was 3Irs. Margaret Anderson, who testified that she was cook on the schooner Crawford on the trip from Chi- cago on the fifth of September, 1869. She corroborated the testi- mony of Captain Smith as to the picking up of the strange boat- man, and testified that he had on two coats; that the next day after he came on the Crawford he came into the cook's galley to exam- ine something secretly which he had in his left breast pocket; that it was a large roll of greenbacks; when he saw her looking he put it back instantly into his pocket; that she noticed where he slept nights, and that always on awakening he would examine this pocket; that she had not heard at this time of the disappearance of Field; that the strange man refused to talk while on the schooner. TRIAL OF VANDERPOOL. 299 Charles B. Howard testified that he was engineer of the tug George JV. Brady ; that the strange boatman came on to the tug from the schooner Cratcford at the Canadian wood yard in the St. Clair river, as testified to by Captain Smith; that the strange man had a buudle which he kept under his head when sleeping; that he helped the men to wood the tug, and that, though very hot, he kept his coat on and buttoned to the throat; that as soon as the tug touched the dock in Detroit, and before her lines were out, the strange man jumped off and passed up the wharf. Captain Anthony Gurney testified that he was a sailor and cap- tain now in the Government employ, building lighthouses; that in 1869 he was captain of the tug George JV. Brady, and towed the schooner Crawford from Lake St. Clair to Lake Erie late in Sep- tember, 1869; that he took this strange boatman at the request of the captain of the Crawford, and carried him up to Detroit on his tug; that he helped the men wood the tug; kept his coat buttoned to the chin, though the day was warm; slept on deck with a bundle under his head; spoke to no one; and jumped from the tug at Detroit before the lines were made fast. Captain Andrew H. Mills testified that he lived in Detroit, and owned three vessels; saw the tug George JV. Brady land at the time spoken of in Detroit; saw the strange boatman jump from her; that he asked witness how he could get to Canada, and wit- ness pointed out the ferry boat just landing; that he saw the strange boatman go aboard of her, and that was the last he saw of him. The defense also offered, in connection with this testimony, expert testimony to show that the prevailing winds on Lake Michigan from September fifth to fifteenth was from south to southwest; and also, by diagrams and expert testimony, that a body dropped twelve miles off Manistee river within two or three days of the fifth would be carried by the current to the beach where Field's body was found. The defense then called another witness, the Rev. J. B. Fish who testified that a week after Field's disappearance, while searching with others for the body of Field, in a dense wood near Canfield's mill, near Manistee, upon the bank of the river where a large log ran into the water, he saw evidence of a dis- turbance of the ground on the edge of the river, as though a small boat had been run up on the ground; twigs were broken from the trees, and there seemed to have been a struo-gle. 300 MODERN JURY TRIALS. Witness was then asked by the defense what he thought would produce the appearance described. After objection and argument, the court admitted the testimony, And he said, " The prow of a boat;" that looking around he found a wrapper that had been about a package of money, with " One hundred dollars" marked on it, and a red stain, like blood, upon it; the paper was produced in court. The witness further testified that while searching he saw the dentist, Wilcox, in this vicinity. On the cross-examination of one of the prosecution's witnesses, one, too, who had testified on both the previous trials, John Blanchard by name, and from whom no such testimony had been previously elicited, the defense proved that fishermen were in the habit of catching whitefish and trout at the mouth of the river; that they dressed these fish in their boats before they carried them up the bank into the city; that when dressed at the landing they were put in baskets, carried up into the main street, and the blood usually dripped from the baskets ! The witness testified that on Thursday afternoon, the first of September, he and his partner thus carried a load of freshly dressed fish to the bank dock, carried them up the bank stairs by the side of the bank building, and that witness then saw blood drip from the basket on the stairs ! The defense also showed by expert testimony that it was almost impossible to detect, in a microscopic examination of the blood corpuscles, human from fish blood. Argument of Mr. Ciieever for the Prisoner. The exordium of his address was an eloquent appeal to the jury. Of the body of his remarks, the following is an abstract : I congratulate you here that neither sickness nor death has come during this trial to diminish our number. Like passengers on an ocean voyage, we came together as strangers, but this four weeks has made us friends, and when you shall have discharged your solemn duty and rendered your verdict, I trust that we may look back upon these weeks with pleasure. * * * You have nothing to do with the young man who was stricken down in the prime of life. You have nothing to do with the bereaved mother who believes her son to be murdered, who sup- poses him forever lost to her on this earth; nor with the wife who may be worse than widowed by your verdict. It is your business to try the matter before you as if the prisoner was the veriest ruf- TRIAL OF VANDERPOOL. SOI fian who walks the earth, instead of a young, honest and honored citizen of a young and prosperous city. But it is also your duty to remember that it is for the interests of the great people that your decision should be strictly just to him who sits here charged with crime, and that it is better that " ninety and and nine guilty ones should go unpunished rather than that one innocent man should suffer." * * * Two years ago this man and his young wife, this pair, whose only wealth was love, had their home darkened by the shadow of a black and terrible suspicion — the master of the house was charged with shedding a brother's blood. After one day of surmise he was seized and hurried into prison, a hasty trial followed, and he was condemned to a life-long incarceration. * * * The spectacle presented to us here to-day is sublime, for in this great state of Michigan, in the little court-house in this little city of Hastings, is being silently worked out the problem that has been such a mystery for two long years. The outside world goes on with its hum and business, little caring whether George Van- derpool goes forth a free man, or not. We live from day to day and follow our daily avocations, and hardly know whether there is a law on the statute books, or not. * * * The two young men, Vanderpool and Field, were almost boys in business when they began. Field was an open, candid youth — a man who bore his heart upon his sleeve; his partner a little older, indeed, but fully as untrained in the management of affairs. These two entered into a copartnership, by the terms of which Field could not, if he would, have dissolved the relations of the firm. * * Do you remember how the learned counsel charged this prisoner yesterday with riotous living in Saratoga ? He drove there quietly in a modest little buggy, which he had borrowed from his mother- in-law, where he was visiting with his wife. Thurber found this man bringing a pitcher of milk for his morning meal. Why was it that this millionaire — this rich banker of Manistee, had not a train of servants to send for his milk, and to do his scrubbing ? And he went hastily, before his breakfast, to begin the washing out of the building, did he ? Gentlemen, how easy is the explanation. When Thurber came to the bank in the morning, Vanderpool told him at once: " Field has been here and has taken his papers." When Vanderpool heard at his gate that morning, from Thurber that Field had gone away, what did he do? Why, he did just what any prudent man would have done; he set down his milk and started for the bank, for what ? To begin scrubbing, they tell you. He went back, as any prudent man would, and examined his safe 302 MODERN JURY TRIALS to see what he had taken, and when Thurber came in, he said, " Field has been here, for his papers are gone." * * THE CORPUS DELICTI NOT PROVEN. They must prove, first, the corpus delicti — the fact of the com- mission of the crime — and second, the guilt of the respondent. But, in the first place, they have not even proved the corpus delicti. To have done that, the identity of the dead body must have been shown, either naturally or artificially, as the law says; in other words, by an absolute recognition of the features, or by attendant circumstances of clothing or other peculiarity. But circumstantial identification is most uncertain; instance after instance has been known where, after the most positive artificial recognition and con- viction resulting therefrom, it has been discovered that the whole thing was a mistake, and that the punishment was misplaced and unjust. Even recognition by features is not always decisive. In this case not one witness has identified the body washed up on the Frankfort beach by the features; only one has sworn to knowing the corpse by its appearance, and he knew it by the shape of the back of its neck. Have any of you ever attended a marked ball ? Have you ever tried to detect even your intimate friends bv the shape of the forehead, or the lower part of the face, when the rest of the features were concealed ? Tou know how difficult it is to do this; you know how much more difficult it is to recognize them by their forms. How absurd, then, it is to try to declare who a person is by the " shape of the back of the neck !" Now, where are the artificial proofs that this body was the body of Herbert Field? That of paramount importance, perhaps, and that upon which the issue of the case might possibly depend, is found in the testimony of Crispin and Slyfield. The first could do no more than swear that the same articles which he found on the body at Frankfort he saw again at Manistee. But one swore to seeing two socks upon the feet of the body; the other remem- bered but one. One thought there was a cravat upon the neck; the other thought not. When Crispin returned from his search for the coroner, he found the pockets of the pantaloons upon the body turned inside out; they were not so when he left it — at least he had not noticed that they were. Here is the torn envelope, with the blurred writing "Herbert F" upon it, and this is one of the slight circumstances upon which the People base their identification. You remember how witnesses differed about the human figure on the arm; how Shurley said that there was a wreath in its hands, and how Slyfield declared that it was no wreath, but a row of stars TRIAL OF VANDERPOOL. HOZ above its head. Dunning said the figure on the living arm of Field was adorned with a wreath of evergreens, Hall knew his friend by the ring he wore only, and Dr. Shurley admits that he would not have known who it was if he had not seen the figure on the arm. Now, as to Dr. Hopkins, he found his own work in the filling of the teeth in the dead man's head, and in the separation of teeth by filing. But, gentlemen, Dr. Hopkins is not the only man who ever filed a patient's teeth, and other men than Field have had teeth filed. Is not all this weak evidence by which to prove the identification of Field? Then, as to the clothing, nothing can be certainly shown by that. The pantaloons, gold piece, shirt, shirt-studs and ring could have been left with the body, if man's devilish ingenuity had made it a method of concealment of crime. But this is all, and the frail tes- timony of the dentist fills up the rest. And now, note this one thing: there has not been one single syllable to tell the story of the sex of the corpse thrown up upon the sands. There is not one word to show that it was the body of a man. If it was Field's corpse, I yield to no one in my sympathy with his sorrowing friends. But my duty compels me to remind you that there is not only not enough known to convince you that it was really his, but there is not enough to determine whether it was that of a man or -of a woman. However, admitting for the. sake of the argument, that the body was that of Herbert Field, it next becomes necessary for the People to show that murder had been done, and for this they have to resort wholly to circumstantial evidence. They have not an atom of direct proof upon the subject. Let me call your attention to an instance which Lord Coke gives of circumstantial evidence of the strongest kind. A man rushes out of a building with a drawn sword in his hand, dripping with blood; within the house is found a man pierced through, and in the agonies of death. The man with the sword is seized for murder and condemned, though he protests his innocence, and he was innocent. Mark the explanation. He had entered the house and found a suicide who had but just run himself through; he had seized the sword and drawn it out of the body, and rushed forth to call for help. The truth, when it was known, was simple and natural. Mr. Cheever here continued to relate numerous actual and inter- esting instances of mistaken conviction upon circumstantial evi- dence, told in the most effective and vividly descriptive manner 304 MODERN JURY TRIALS. touching upon the case of Miss Rosenzweig, and that of Weather- wax, the latter of which is one of the most remarkable illustrations of the point in all criminal history. The speaker also brought up the Colvin matter, an old and almost equally remarkable case which occurred in Vermont over fifty years ago; and then proceeded: HOW IS THE CHAEGE BROUGHT HOME TO THE PBISONEE ? Now, what circumstances have the prosecution shown or attemp- ted to show upon which they base this charge. They introduce witnesses who swear that they saw him at an unusually early hour and one witness — Dr. Wilcox — swears that he saw blood on the stairs on that Monday morning. These persons who were up and saw him were about their lawful business, they say, but may not George Vanderpool have been about his lawful business as well as they ? If Field had not been missing, would these circumstances have been considered suspicious? That is the test. Gentlemen, do not consider circumstances as suspicious which would not be con- sidered so if not viewed with a crime in the background. NO BLOOD IN " SUSPICIOUS QUANTITIES " IS FOUNT). My third point is, that there was no suspicious quantity of blood found in that bank on Wednesday; and, first, there was no suspi- cious quantity of blood on the floor, for all that was on the floor on Wednesday must assuredly have been on the floor on Monday. But of all persons in the bank on that day and on the nest, not one noticed any blood, nor did they notice any blood in the water that was swept out. They sent a piece of board from the floor to Dr. Duffield for examination, and they testify that there was as much blood on that piece as on any other, and Dr. Duffield said that he found no blood under the ink, yet several of these wit- nesses testified that blood cropped out from under the ink. They expect to collect all this testimony that has been coming in for so many weeks, and hurl it at you in a mass, and convince you in this way, for it will not stand analysis. They say there was blood on the wall and desk. Let us examine these spots together, for they are so small that it is ridiculous to separate them. Conoyer says, there was blood on the east wall, mark that — but if he had been struck while sitting at his desk, we would have expected to find the spatters of blood on the west wall. Besides, Dr. Shurley testi- fied that the blood would continue to flow in jets for three minutes, but if so, where did all this blood go ? It would have saturated TRIAL OF VANDERPOOL. 305 the carpet for a, much larger space than was cut out, and would have run through the floor and down into the basement, but we find none there, and only the little piece hanging down like a pea from the floor. Three minutes is a long time for blood to flow, and spurt and jet; it would have saturated everything around there. I tell yon Herbert Field was never murdered in that bank. He may have been foully murdered, and that, too, by George Vander- pool, but never in that bank. To explain the blood on the wall, and on the legs of the desk is very easy, when we consider that they used a great deal of red ink, and "how common a thing it is when we dip the pen into the ink bottle to throw off a drop before writing. If that body was carried out of the front door and down those stairs, why was not blood found in front of the bank, as well as down the stairs ? I am glad, for Dr. Wilcox's reputation, that the witness Blanchard gave the explanation of that blood on the stairs that he did, but it is a strong commentary on human weakness, that, in the two trials before this, in which there was great legal skill and acenmen, this fact which explains all this blood was not brought out. In regard to the blood on the stairs leading down to the river, the witness Blanchard gives us an explanation for that, by saving that he carried a basket of fish up those stairs on Tuesday and saw blood and serum drip from his bucket, and you remember that no blood was seen there till Wednesday. But the counsel on the other side were not satisfied with this, and asked the witness if he had ever carried up any fish there before, when he said that he had carrried up some on the previous Saturday. ***** THE FOUR " WITNESS TREES " WHICH SHOULD POINT TO THE " COR- NER POST " OF GUILT, DO NOT AGREE. * * * * If you go into the boundless forest and seek to find the line that the government has surveyed between two sections of land, you seek to find the "corner post," knowing that it is the main fact upon which you rely. But this "corner post," this "main fact," you can only find by following the "witness trees," and directions, courses and distance they bear from the corner post. These "witness trees" all point to the "corner post," the main fact. But if any one of them do not so point, you are in doubt — there is something wrong; and the farther you go in the search, following their guidance, the more uncertain you are of the true line. Vanderpool, Secor, Dr. Wilcox, and the " strange boatman," are the four witness trees, each bearing more or less of the biased evidences of guilt. But do they each and all point in the same 20 300 MODERN JURY TRIALS.,, direction? Charles Secor found a human hair upon that bloody- newspaper, red spots upon the carpet so small he had to pin them for future reference. No other witness saw these evidences of guilt. He was early at that bank, as well as Vanderpool, that Monday morning, with his horse and buggy. It was five o'clock. "Where had he been ? At this time no suspicion was aroused, It was not even known that Field had disappeared. Secor lived but two blocks from the bank; why was he there with his horse and buggy at that hour ? With what microscopic vision did he find that single human hair, those minute blood spots ? That hair, those spots, that early ride, that mission to the bank, are all "marks" of guilt, but they do not point toward the prisoner. Dr. Wilcox roomed over the bank. He was also up very early that Monday morning, and saw Vanderpool at the bank, as did Secor. He went down the stairs by the side of the bank, that morning, and avoided the blood spots by walking on the other side. He went toward the river, perhaps, like Lady Macbeth, looking at his hand, and crying as he went, " Out, damned spot ! Out, I say! " He slept in his office that Sunday night. On the Wednesday following he was under the bank digging for blood (?); but when others came to dig, hunting for the signs of that murder,, he hurries to a widow's house, near by, and asks the privilege •of sawing her wood; said he wished to be out of the way of those people; asked her if she supposed Field was murdered or had run away; and then, when conscience made him coward through and through, begged piteously to be let out by her back door, and so escaped to the woods. His confusion, his early rising that Mon- day morning, his fear of those innocent blood spots on the stairs, his terror at the presence of his fellow beings under the bank digging, sent him, like Cain, a vagabond upon the face of the earth. All these things are "marks" of guilt, but they do not point toward the prisoner. The " mysterious boatman," who was he ? A man was seen that Sunday night, crouching in a "white boat," as he paddled down that little river toward the lake ? He avoided other boats, he was seen of witnesses; but, like grim Charon, silently he paddled on. Something seemed to be following the boat as though attached to it in the water. Was he ferrying some dead body down the river of death? Do you know? Ten days later, twelve miles off the mouth of that river, another strange boatman (or the same), was seen without rudder, oars or sail — famished, gaunt and hungry — in another "white boat" (or the same). A schooner seeks to aid liim. The voice of its captain calls to him in kindness. He makes TRIAL OF VANDERPOOL. S07 no reply. lie is taken aboard, he intentionally capsizes the white boat, and when the schooner bands were bidden to save it, he speaks for the first time. " let the boat go to h— 1, I have had enough of it." He eats ravenously, refuses to be landed in the state of Michigan; denies the possession of money, but is seen counting a large roll of bills stealthily. He sleeps, eats, lives alone, like some wild beast, avoiding human beings. He lands at Detroit, and instantly departs for Canada, first inquiring his way to that land of refuge. Who was he? I do not know! You do not know! But there is an unbroken line of guilt (or mystery) running from that little river at Manistee out into the lake, around the great state of Michigan, through the Straits of Mackinaw, down through lakes Huron, St. Clair, and the Detroit, and so circling this great peninsula, it is lost in Canada. That is a line of guilt, strange as an old tale, mysterious as any mythology, but certain, nevertheless — but it does not touch the prisoner. For the fourth witness tree, you have the prisoner, Vanderpool. There are evidences of guilt which point to him. There are strange, almost unaccountable, circumstances which seem to envelop him. But A just because circumstances equally strange and mysterious surround these other three persons, you cannot say which, if either, is guilty. If either of them was on trial, you would have the same difficulty. Where, then, is the " corner post " of guilt ? These four wit- ness trees point in four different directions. Tou cannot focus their indications upon this prisoner. * *H * * It * *ts He then gave a scathing description of Conover, Secor, Ingram, Bullis and others who had been foremost in prosecuting and perse- cuting this prisoner, after which he concluded as follows: And, now, gentlemen, I leave this case, so far as I am concerned, with you; my responsibility has been great, yours will be greater. I cannot lift the curtain that for two long years has hidden this mystery; perhaps it will never be lifted, until that day when all things are made plain, and the puzzles of time are all solved. Whether Herbert Field is alive or dead, whether George Vander- pool killed him or not, I do not know, but four weeks of patient investigation have failed to show either a death or murder. It is not for me to ask of you mercy, instead of justice; for here as I believe, justice will be a verdict which shall give back a husband to his wife, now for two years more than widowed. ~Ho, we do not ask you to " strain the quality of mercy;" but while I hold up 308 MODERN JURY TRIALS. to you the law and evidence in this case, and ask by the very " letter of the bond " an acquittal, I also point you to this wife and ask you not to bring upon her young life the shadow of an uncal- culated eclipse. I tell you there was mystery, not death, in that little bank on that September day. Two men entered it, but no human eye that we can find saw either leave it. Here is one of them, but where the other is, or how he left it, I know not. Jus- tice demands an acquittal at your hands. What I have said is of little moment, but what you do will last forever. Hon. Thomas B. Church, closing for the People, said: Gentlemen of the jury — The prisoner at the bar is charged with a crime which is not only contrary to the laws of man, but to the great canon of the Almighty, " Thou shalt not kill." Counsel may inveigh against witnesses as much as they choose ; theorize, mystify, and speculate as they will, to the utmost of their ability, but they cannot get away from the cardinal fact that stands out as clear as day — that Herbert Field is dead, and that he died by violence. We live in a singular state of things ; if there is anything about a crime that is unusually horrible, strange or extraordinary, it seems the public taste is vitiated, and the criminal comes to the bar with all the appliances for excusing or covering up the heinousness of his offense, and lionizing the offender. Have we not somthing of this here? Why should the case of this criminal be examined with more tenderness, with less candor or scrutiny than that of any other ? * * * * In the early stages of the cause, we talked of the disappearance of Herbert Field ; we occasionally ventured upon the phrase " alleged murder ; " that is all over now. The truth is no longer to be disguised or obscured. Field was murdered ; he was thrust out of his young and blooming life, and was not slain by casualty ; he was murdered — murdered — murdered ! And where ? And by whom? Sometimes the place and the criminal expose each other. Let us first consider the question, Who killed him? We will take all the circumstances that have since come to light, and will now, a posteriori, as the logicians say, discover the murderer. We are no longer groping ; we have that in our hands which will shed its light on the mj-stery, and will, by inevitable inference, reveal the criminal. * * * * Then, was there a forgery committed after his death— and for what purpose — and by whom ? There was a series of entries on the books amounting, as I read them, to $3,360. That, as I under- stand it, is the way in which he left these books when he went out TRIAL OP VANDERPOOL. 309 into the darkness of death. Are they correct ? There is one thing to show, and that is the little book which Hall testified was kept by his friend Field. It has been admitted as evidence, and it con- tains contemporaneous entries of drawing and deposit. And the whole foots up just $3,360.22, with which he has credited himself on that little book. Now, part is taken out in drafts, and part in currency. When Dunham comes to examine, he finds $2,295 in an envelope, and then, from across the lake comes the word that S>1,060.22 lies deposited in Chicago, to his account. This makes $3,355, and leaves a difference of $5, which might easily be the pocket money that Mr. Field had taken from his own funds. * * * This gold was in Field's pocket late on Saturday night. It was presumably in his pocket on Sunday morning when he left his aunt's and the next that was seen of it was when Conover saw it scattered about the bottom of the safe on Monday. Gold is always kept in bags or boxes ; this was lying loose. Where did it come from? Rifled from the pocket of Herbert Field as he lay lifeless in that bank on Sunday, and afterward found hidden away in the house of the defendant. Gentlemen, I have asked the Judge to charge you that the possession of the private property of a person murdered is criminative evidence of the highest degree. If he who has it cannot satisfactorily explain how he got it, the law presumes that it was taken in the perpetration and execution of crime. * * Then, it is in this position that we find the respondent — compel- led to do some desperate deed to save his position in society and his place as a business man. To prove his innocence there is no way but to show an alibi for Field. * * * * Now, gentlemen, eight Bostonians of high character swore posi- tively to having seen Dr. Parkman after the hour when he went into the medical college from which he never came out alive — and all these eight knew Dr. Parkman, and one of them swore to hav- ing bowed to him and to receiving a bow in return. Why, who should have seen Field that day, if he was alive ? His most inti- mate friends — not simply those who barely knew him — yet not one who was well acquainted with him ever saw him after that fatal noon. * * * * The defense have introduced certain new evidence, and, having done so, it is as much at our service as at theirs. If it becomes necessary for us to show that Vanderpool had an accomplice to help him remove the body, we are entitled to use the evidence, which is new to us, and which supplements our position. But it is not necessary to use it. I have made some calculation on the time necessary for a trip to the piers and back. The defense have 310 MODERN JURY TRIALS. claimed that fifty-eight minutes were needed, if a body weighted with iron was dragged at the end of the boat. I will let them have their estimate, but I will tell you that it is neither necessary nor possible to make the voyage on which Coquillard estimated. Stormy as the surface of the water was that Sunday night, neither Vanderpool nor " the man in the boat" could have gone beyond the Blanchard property on the voyage toward the mouth of the river. And if either had dropped his dreadful burden there, it would, by the inevitable action of the water, have just as certainly been cast outside the piers as if it had been taken to the very out- lpf" *•" "J* * "•* Here Mr. Church told a boat-story which he had picked up in a law-book, to illustrate the unreliability of such evidence as that which was brought up for the first time on this trial. The defense have laid great stress upon the testimony of John Blanchard as to the landing at the bank platform with fish. No matter how much fish was ever carried up those stairs, the blood that was found there was indisputably mammalian blood, and was so recognized by Dr. Duffield ; so was the blood on the floor, and that is not disputed ; so was the blood on the Manistee Times, lying in the desk of the bank. * * * * The little dog was at Vanderpool's house in the afternoon, and was running uneasily about. But where was he at noon ? At Kala- mazoo, Piper testified that he had not particularly noticed any dog with Vanderpool when Vanderj)ool came back into his house for his bath. Here he said he thought the dog was with him. But Xun- gessner, treading close on the heels of Ramsdell, heard a dog howl- ing in the bank. What does this mean? When a dog is pinched or suddenly hurt he yelps, he does not howl. That howl meant that a mere fearful, terrifying sight was before his eyes than lie had ever yet looked upon. And Vanderpool took him away with him, that he might not attract the attention of passers-by by his moaning. And in the evening, remembering the silent face of his dead master, he wandered restlessly about — not soothed by the presence of his new mistress even — and mutely appealed to the murderer for the assistance which could never be given to the victim. * * * * Gentlemen, Mr. Vanderpool has committed this murder. It is a terrible conclusion, but one which we cannot avoid. If we must draw this inference, it is as a duty we owe to the people. It is against the presumption of the law, which regards him as innocent until he is proven guilty ; it is against his former character, poorly TRIAL OF VANDERPOOL. 311 proven as it is ; it is against bis supposed friendly relations with his partner Field. But it is not the less a possibility, for God only knows what lies under the exteriors of men, respectable and fair-spoken as they may seem. Only one class of men in this country — the priests of the Catholic Church — are permitted to hear the inmost secrets of men's minds, and their lips are sealed. We have had testimony upon VanderpooPs reputation ; no con- fessor has come forward to tell us of his character. He did hold Field in double trust — his friend, his partner — and those facts should have "pled like angels, trumpet-tongued, against the deep damnation of his taking off." But he was not faithful to his charge ; under his smooth face he carried hatred and a bloody pur- pose ; to every appearance friendly and upright, he was but a " whited sepulchre, full of dead men's bones and all uncleanliness." ****** Gentlemen, I leave this case in your hands, in the hands of men who will not that the acquisitions of industry and economy be torn from them by robbery, nor that the term of their natural lives be shortened by murder ; but who will that the least wrong done in any community to the humblest member of that community is a wrong done to the State. However much of pleasantry may have seemed to you to have entered into the little verbal encounters between the counsel in the case, I assure you that this noble mem- ber of the profession who sits beside me has never once lost sight of his duty to his client, and that I have not once forgotten what I owe to the People whom I represent. My own associations with the cause are somewhat remarkable. At the first trial I was crushed by the loss of a son, and I told the jury that while my own affliction led me to pity the sorrowing family whose home had been so suddenly and terribly overshadowed by this great crime, that it led me also to hope for the safe deliverence of this young man from the fearful accusation which weighed upon him. I know the consequences of conviction ; how it cuts down to the earth, at once and forever, the bright hopes of these young lives, and dooms the prisoner to a living death. But the actual and possible conse- quences of the crime are dark and dreadful, however they are viewed. Herbert Field murdered, his aged mother is driven almost to the confines of insanity ; the respondent convicted, the young life of his wife is crushed and darkened forever. * * * * Gentlemen, take the case to your jury room. May the God of mercy, truth and justice guide your deliberations — the God of mercy, who will incline your hearts to pity this wretched man who sits before you, charged with the greatest of crimes — the God of 312 MODERN JURY TRIALS. truth, who will point out to your understandings the hidden things of this mystery, and make them clear to your vision — the God of justice, who will bring you to a righteous decision. The jury were out six hours. The first ballot was eleven not guilty, one guilty of murder in the second degree. At this point they came in for further instructions, and were charged by the court, at the request of the prisoner's counsel, that they must either convict of murder in the first degree or acquit. The scene in the court room during this second instruction to the jury was tragic. "Vanderpool's wife sat with hands clenched and blanched cheeks, and when the jury retired the second time, she broke down into a fit of terrified sobbing at what she believed the awful suggestiveness of what had just taken place, although her counsel assured her and indicated exactly what transpired shortly afterwards. Fifteen minutes later the jury announced their agreement. The scene in the court room was impressive. The clerk rose and asked the jury if they had agreed upon their verdict; the foreman answered, " Yes ! " The clerk, in his excitement, forgot to prop- erly interrogate them, but asked, " For whom do you find ? " The reply of the foreman was scarcely audible, from suppressed emo- tion, and it was supposed by most who heard to be " Guilty." He immediately arose, however, and said plainly, "Not guilty!" and three or four other jurors half rose, repeated his words, and fell back into their seats. Mrs. Vanderpool, with a shriek, fell for- ward into her husband's arms. "Can't you take the verdict in form?" asked Mr. Hughes, impa- tiently, of the clerk. "Ask whether the verdict is guilty or not guilty." This was done at last, and the answer came back, " Not guilty." And so say you all ? " said the clerk. "Not guilty!" reiterated every juror. The scene which followed is almost indescribable; a tornado of applause followed from the densely-packed court room, which the court could not suppress. The building shook; the prisoner turned his face to heaven, closed his eyes, and lifted his hands, as though in thanksgiving. One great, brawny juror, with a piratical mous- tache, whimpered like a child. Another, a sturdy blacksmith, usually ferocious in appearance, wept. Ladies in the court room crowded into the bar to congratulate the prisoner and his wife, who in turn gave to their counsel the warmest assurances of their gratitude. TRIAL OF VANDERPOOL. 313 And so the great trial of Vanderpool was over. As an incident interesting in connection with this trial, the fol- lowing editorial clipped from the columns of the Grand Eapids Daily Democrat, published the day after the introduction of the testimony concerning the mysterious boatman, may prove inter- esting : " Who Murdered Herbert Field ? " "We don't believe in spiritualism, free love, or witchcraft, yet a circumstance in regard to the murder of Herbert Field, at Manis- tee, two years ago, may be worth relating, since the introduction of new testimony by the defense in the Vanderpool trial, at Hastings, bears on the same subject. "A few days before the trial of Vanderpool at Manistee, on the charge of murder, the writer was called to visit a gentleman in this city in regard to the purchase of a piece of property, and while there witnessed a ' spiritual manifestation,' as it is called, which convinced several who were present that Vanderpool was innocent of the charge of murder. "When we entered the house we were somewhat surprised to meet a circle of believers in spiritualism, while one of the number, a lady, was just going into a ' trance.' Being invited to a seat, we accepted, with the purpose of seeing the ' whole entertainment.' The lady medium appeared to have no control over herself, her limbs twitching and jerking, her eyes being closed, while the mus- cles of her face were made to perform violent contortions, and pre- sented an appearance disagreeable to look upon. "Gradually she became more calm, and at length very quiet. A number of questions were asked, which the woman answered, in a deep, masculine voice, evidently to the satisfaction of all present. " The Manistee murder at that time being the source of conver- sation in high and low circles, one of the number asked the medium, 'Did Vanderpool kill Field?' and the reply was, very emphatically, ' No.' Further inquiries on the same subject were made and answered promptly, and in reply to the question, ' Can you describe the person who killed Field ? ' She answered, ' Yes,' and then drew a picture of a man, of which the person picked up in a 'mys- terious boat ' off Manistee by the captain of the schooner Craw- ford, and described in the trial at Hastings, was an exact counter- part. The medium further stated that the ' myterious man had an accomplice ' in the person of a female, who was minutely described, and who received a portion of Field's money. Other particulars of 314 MODERN JURY TRIALS. the murder were touched upon, but not being * in the faith,' we took no pains to remember them, and probably should not the event above but for the fact of the new evidence brought out at Hastings. We only desire to repeat that we have no faith in spiritualism, and publish the above circumstance for what it is worth, only adding that what is stated is true in every particular, and can be corroborated by persons who were present." MoFAULAND-EICHAEDSON CASE. Tried at New York, May, 1870. STATEMENT. 1. Albert D. Richardson was a journalist, a staff reporter, and late war correspondent of the New York Tribune / a man known throughout the nation as a pleasing writer of considerable promise. 2. Daniel McFarland was a graduate of Dartmouth college: a professor of chemistry, logic and belles-lettres; an elocutionist, and member of the New York bar, with some political influence, but slender law practice. He had speculated and failed, and was not possessed of much property. At the time of the homicide he was about fifty years of age. He had married a young wife, rather giddy, though quite attractive, who bore him two children. Two years prior to the tragedy, Mrs. McFarland had applied, in Indiana, for a divorce; but there was no record produced on this trial of the granting of her petition. Just before the death of Richardson, the Rev. Henry Ward Beecher and Dr. Frothingham performed a marriage ceremony between Abbie Sago McFarland and Albert D. Richardson, at the Astor House, which was not a little sensational, Mr. Beecher thanking the "Divine Father for what these two had been to each other." Mr. McFarland having no notice, or service of notice, claimed the alleged divorce to be wholly void. The theory of the defense was insanity, caused by the loss of Mr. McFarland's wife and child, through the wiles of Richardson. The People sought to convict of murder in the first degree. The trial was before Recorder Hackett. District attorney Gavin and Judge Davis appeared for the state; Hon. John Graham and Elbridge T. Gerry for the defense. Mr. Graham closed for the McFARLAND-RICHARDSON CASE. 315 defense, and, added to his general talent, was the ripe experience of four similar trials, so that his brief and argument on the law of insanity is one of the fullest and most complete ever written or delivered on the subject. He had no personal pride of opinion to advance; wherever rare wisdom was to be had, he procured and read it; the Bible, as well as words of eminent advocates like Seward, Stanton, Brady, Hale and judges of high renown, were used with a power and skill, seldom surpassed since the trial of Hastings. It has many apt quotations of distinguished men, made effective by one orator. In this respect, the argument of Mr. Graham is the climax of a thirty days' trial. His speech was animated action. His art is utter self-oblivion and a rigid adherence to the strong points of law and evidence. He assumed nothing until proven, and proved that thoroughness with strong personal belief in his case was effective. His frequent use of pertinent scripture quota- tions, delivered with a sacredness always appropriate, gave weight to his reasoning. His memory, force and industry, all aid in his success. His remarks are condensed from one hundred and twenty- eight pages to a short story of the case, with a terse argument, and a happy combination of other briefs makes it fourfold stronger. ARGUMENT OP ME. JOHN" GEAHAM. Mat it please the Cotjet: Gentlemen of the jury, How con- soling must be this day to this afflicted, sorrowing and heart- broken man! He is at last where he has no cause to dread to be, before a jury of his peers, the highest social privilege guaranteed to him by the laws of his country. Within his bosom, for many a dreary hour, he has carried a weight of anguish likened unto which the nether mill-stone, figuratively speaking, may be almost said to be as light as air. Death, stripped of the obloquy and terrors here sought to be attached to it, might be to him a harbor of repose. Long enough has he endured the peltings of the merciless storm! Who does not now trust that he may find an asylum in your jus- tice ? Temper it with mercy, as you yourselves expect forgive- ness. To you, to you, my fellow men, through me, his humble and undeserving advocate, he turns as the arbiters of his worldly hopes and his earthly destiny. In him are united the wrongs of a dis- honored husband, an injured, an outraged father. His story can be briefly told. " He has loved not wisely, but too well." You have heard some of the particulars of his sad career. Have they not gone to the very depths of your souls ? Have you not, each one of you, during the developments of this unnatural investiga- 316 MODERN JURY TRIALS. tion, asked yourselves, over and over again, the question: Could I have done less than he did, and might I not have done more? Who can tell the capacity of the human mind to withstand or resist those pressures against which it may have to contend? Who can make over the work of Omnipotence ? Who can alter or reverse its fiat ? If we turn our eyes to those trackless, unmeasured realms of space which ahound with the monuments of the vastness, power and wisdom of the Great Author of all, how are we dizzied by the grandeur of the contemplation, and shrivelled by a sense of our own littleness ? Which of us could be vain or irreligious enough to question or seek to interfere with the laws which regu- late the movements of those countless systems, compared with which our own sphere is as a speck, and with which it has not any ascertainable connection ? Who can check the light, or restrain the heat, which issues from the sun ? Who can return to the queen of night her silvery brightness, or despoil her of any of her appropriate offices ? Who can appoint the time for the blowing of the wind, the appearance of the lightning, or the advent of the rain ? This is not within the scope of human power. These are not among human prerogatives. It is to this category we assign the human mind. It is the breath of the Deity. It is a fire of his kindling. It is the immor- tal soul bound on its way to eternity. It contains the elements communicated to it from that source, and it is as impracticable for us to extinguish it altogether as to create it anew or to endow it with a different character. There is a point up to which its opera- tions may be said to be vicious or criminal. Beyond that point its action is suspended for all secular purposes, leaving its possessor an involuntary agent in the execution and infliction of Divine vengeance. What is the allegation of this prosecution? Not, may it please the court, and you, gentlemen of the jury, that the individual who has passed to his grave met an unmerited doom; not that, if he sullied the marital honor of his neighbor, he did not disentitle him- self to live: but simply this — that, however just and righteous his reward, he received it at the bands of an unauthorized instrumen- tality. That depends upon the mental condition of the slayer at the time of the commission of his act. It is this consideration which meets yon at the threshold, and is the last to leave you at the close of this solemn proceeding. Here I may be permitted to return the thanks of my learned brother and myself to the court, for the amenity we have experi- enced at its hands from the opening to the close of this investiga- McFARLAND-RICHARDSON CASE. 31'7 tion. Your honor's responsibility lias been great. Tour trust has been most sacred. Many important questions have arisen, to be decided upon the spur of the moment. They have had to be sum- marily disposed of, in order to enable the wheels of this trial to keep rolling on. However much we may have differed from you during this trial, so far as my associate and myself are concerned we desire to make this public acknowledgment to you, and to ex- press our conviction that every decision you have rendered has been prompted by humanity of motive, by purity of intention, and by an unquestionable spirit of impartiality. To you, gentlemen of the jury, our obligations are overwhelming. We have taxed your patience and time beyond all precedent. We know not how to thank you. Your sacrifices have been great. Remember the great moral, as well as social duty of this occasion. In later life it may be a gratification to you to refer to the incidents of this trial- God grant that you may be spared to see the good results, which may issue from your action on this solemn occasion. It may be that the satisfaction — as you turn back upon this occasion — which you will derive from its recollection, will prove to you more or less of a compensation for the losses you have been compelled to sus- tain. If, in the manner of either my associate or myself, you have discovered aught that was offensive or unpleasant to you, in the name of my client, let me ask you to dismiss it from your memory. Remember, that it is the law of humanity to err, and however numerous the errors we may have committed in your presence, rather credit them, if I may so ask you, to an over-sense of fidelity to our client. This is the third occasion within some twelve years on which, although a single man myself, I have had the distinguished honor conferred upon me of upholding and defending the marriage rela- tion. Within that period the three most exciting trials have occurred in this country that have ever occurred in it, and it has been my distinguished privilege to appear in every one of them. Why it is, when practically I could not enter into the sympathies of such a relation, I have been selected for this distinguished office, I cannot divine, unless it is that I regard marriage as a sacrament, and had I thought less of it I might probably have contracted it before now. The veneration with which I regard it is well known, and, although my lot in life is not suited to its practical advocacy, nevertheless, so far as my theoretical predilections are concerned, they are of that character which has induced my selection as a counsel to maintain the sacredness and inviolability of the relation, on the different occasions to which I have referred. To portray 318 MODERN JURY TRIALS. the tenderness of woman's nature — to do justice to her charms — to exhibit fairly her perfection — to represent her as she is — has challenged and successfully defied the greatest imaginations, whether exercised through the pen of the poet, the brush of the painter, or the chisel of the sculptor. The extreme delicacy and sensitiveness of her constitution unfit her for those masculine con- tacts with the world, which are adapted to the sturdier attributes of man. What more power does she desire ? What more power can she have than she already exercises ? Her power is unlimited in forming and moulding to her liking a husband's disposition. The potter hath not more power over the clay to form one vessel unto honor and another unto dishonor, than has a wife over the attributes and character of her husband. If there is unhappiness in the domestic circle, can she not do much to dispel it? Poverty ceases to be felt amid the consolations of her conrpanionship, and sorrow disappears in the presence of her smiles. The peculiar virtues to be exemplified by the family queen are beautifully stated in scripture — Prov. xxxi. 10-31: Who can find a virtuous woman? for her price is far above rubies. The heart of her husband doth safely trust in her, so that he shall have no need of spoil. She will do him good and not evil all the days of her life. She seeketh wool, and flax, and worketh willingly with her hands. She is like the merchants' ships ; she bringeth her food from afar. She riseth also while it is yet night, and giveth meat to her household, and a portion to her maidens. She considereth a field and buyeth it ; with the fruit of her hands she planteth a vineyard. She girdeth her loins with strength, and strengtheneth her arms. She perceiveth that her merchandise is good ; her candle goeth not out by night. She layeth her hands to the spindle, and her hands hold the distaff. She stretcheth out her hands to the poor; yea, she reacheth forth her hands to the needy. She is not afraid of the snow for her household; for all her household are clothed with scarlet. She maketh herself coverings of tapestry; her clothing is silk and purple. McFARLAND-RICHARDSON CASE. 319 Her husband is known in the gates when he sitteth among the elders of the land. She maketh fine linen and selleth it; and delivereth girdles unto the merchant. Strength and honor are her clothing; and she shall rejoice in time to come. She openeth her mouth with wisdom; and in her tongue is the law of kindness. She looketh well to the ways of her household, and eateth not the bread of idleness. Her children arise up, and call her blessed; her husband also, and he praiseth her. Many daughters have done virtuously, but thou excellest them all. Favor is deceitful and beauty is vain; but a woman that feareth the Lord, she shall be praised. Give her of the fruit of her hands, and let her own works praise her in the gates. There are, gentlemen of the jury, two incidents of this trial that demand notice here. I do not on this occasion mean to indulge in any undue severity in reference to the private counsel who has appeared in this prosecution. He is to take no part in the argu- ment of this case before the jury, and it would be ungenerous and unmanly in me, now that he has virtually retired from the case, to make him the subject of any bitter assault in the remarks I may utter hereafter. I have the right, however, and it is my duty, to refer to his appearance upon this occasion. The appearance of that gentleman has not been so objectionable as his extreme tech- nicality, and I think I should be sustained by the response of every juror here, if he could give it to me when I called upon him for it, that this prosecution has partaken altogether too much of the nature and character of a private proceeding. There are some particular parts of the management on the part of the prosecution to which I will refer in a few moments, which will show you more readily the verity and propriety of this remark. The other incident, to which I desire to make a passing allusion, is this — and I do not propose to more than call it to your atten- tion, and the rather because I wish to dissent from the precedent which has been attempted to be established upon thi3 trial — in a community as heterogeneous as ours, where there is so large a foreign element in our population, discriminations on the score of nationality, so exceedingly out of place and inappropriate on all 320 MODERN JURY TRIALS. occasions, are particularly so when exhibited under the auspices of a public prosecution. 'The formation of the jury was delayed one day in this matter, by the extreme captiousness of the prose- cution. Three competent jurors were found, two of them belonged to one nation, and one to another, and yet, for some cause or other, although they were good and reputable citizens, the People of this mighty state through its accredited organ, the prosecutor of this county, objected to their sitting upon the decision of this indict- ment. In our state — and this is an anomaly — in all capital cases, and in all cases involving a punishment of or beyond ten years' imprisonment in a state prison, the prosecution have the right to exert what are called five peremptory challenges; that is, the right to set aside a juror for no other cause than that they are not will- ing to accept him. I shall ask you, gentlemen of the jury, to carry in your minds certain principles which you will hear me hereafter, more or less, amplify in some suggestions I shall make to the court, as to what we suppose to be the law the court should lay down to the jury for their guidance in this case. This is a case of murder or nothing. There must be no compromise here. If Mr. McFarland is guilty at all, he is guilty of murder; and the juror who would compromise him into the state prison would violate his oath just as much, as if the prisoner were guilty of murder and he did not convict him of that crime. There can be no medium verdict here, and so I place this man before the jury. The prosecution are not, by a species of strategy, to fall into a kind of inferior conviction. That is one of the shifts of diplomacy sometimes called into requisition by a prose- cution. They indict a man for murder, intending to get him into the state prison, and then they exercise their humanity by saying, "We do not press the case against him for a conviction of murder; we only ask a conviction of manslaughter." The jury are often- times misled in that way. This is a case of murder or nothing, and so I will put it to you, and I will presently show you that the beloved James T. Brady, on the trial of Cole, scorned the idea of the jury convicting his client of manslaughter, when it was murder or nothing; and that they ultimately, on that intimation from him, rendered a verdict of acquittal. A compromise is a violation of your oaths. This case ought to be looked straight in the face. If Mr. McFarland is responsible for his act at all, he is responsible for the highest crime known to the law. If the testimony has shielded him from a conviction of that offense, he is entitled to a clear ver- dict of acquittal at your hands. Although I have no light to give you the law, because that McFARLAND-RICHARDSON CASE. 321 comes from the court, yet you are at liberty to carry in your minds, in hearing my argument, these additional principles. If upon the whole case, you entertain a reasonable doubt as to whether Mr. McFarland was sane or insane at the time of the shooting, you are bound to resolve that doubt in his favor. If this case is so balanced that you cannot tell whether he was sane or insane at that time, you are bound under your oaths to acquit him, because in convicting him of murder you sustain this indictment, which charges that in slaying Albert D. Richardson, the prisoner was moved and stimulated by the instigation of the devil. A man may be insane as to one man, and perfectly sane as to the rest of the world. A man can be deprived of his mind on one subject. A man can be mentally deranged in reference to a particular man, or a particular set of men. So far as he ac** within the limits of his derangement he is not accountable, but if he goes outside of those limits, and attacks the rest of the world, he draws on his head the same accountability as if he was perfectly free from men- tal alienation. An important consideration you are not to overlook is — that human science, in reference to the mind, is limited at the best. The condition of the human mind is a subject of doubt in itself. It cannot be inspected, and even where derangement is known to exist, there may be an undue limitation of it. The jury are conse- quently required to be humane and liberal, for they assume to pro- nounce upon that as to which they may be mistaken, or as to which they can judge erroneously. There is a difference among medical men as to whether insanity is a disease of the soul, or a disease of the body, and you will remember that if you hold that the human mind exists through the perceptions — by a species of external action upon the brain — you seem to destroy the immortality of the soul altogether. There are three theories on the subject of insan- ity — the j)sychological theoiy, of those who insist that the soul is independent of the body, and that insanity is a disease of the soul; the somatic theory, that insanitj r is a physical disease; and the intermediate theory, of those who advance the capacity of the soul to impart disease to the body, and the capacity of the body to impart disease to the soul. This is one of the remarkable mys- teries which human science cannot fathom, and as to which it can only speculate. It will be for you to exercise your judgments, under your oaths, as to the medical testimony, precisely as you shall consider most consistent with reason. To enable you, gentlemen of the jury, to judge how strong a feeling is aroused by the compromise of a husband's honor, let 21 322 MODERN JURY TRIALS. me invite your attention to the marriage relation as exhibited in Scripture. Marriage is a Divine institution, and to judge of it by any human book would be absurd. It would be idle for me to read you a human book to show how strong a man loved his wife, when the Bible, which speaks from the Deity, tells you what mar- riage was created for, and what feelings the Almighty imparted to it. I read from the Scriptures here simply as I would read from an ordinary book, to show you what was the strength of this man's feelings when invaded and outraged by the man whom he is charged with sending to his grave. When Adam was presented with woman, formed by the Almighty from one of his ribs, taken from him in a deep sleep, Adam said, "This is now bone of my bone, and flesh of my flesh; she shall be called woman, because she was taken out of man. Therefore shall a man leave his father and his mother, and shall cleave unto his wife, and they shall be one flesh." One flesh has one set of feelings. There is a perfect unanimity of feeling in one flesh. Hence, you observe that when man and wife are mated they are the same, and both feel the •same. An outrage to one is an outrage to the other. The New Testament contains the same sentiment, thus: "Wherefore, they are no more twain, but one flesh; what, therefore, God hath joined together, let no man put asunder." This furnishes an idea of how intensely husband and wife should love one another. They are to be one in spirit, as they are one in body. Their hearts are to beat in unison. It may be that they do not reciprocate one another's love; but that may not affect the feeling of whichever of the two parties has the appropriate amount of love. If the woman does not love the man, but the man loves the woman with all his soul, the man's feelings are just as strong as though the woman returned his attachment, and an outrage upon those feelings, even though his attachment is unreturned, is just as serious as though the out- rage was upon a marriage relation, where the hearts of husband and wife beat in unison. Let me now read to you some verses from Proverbs, which were recited by the beloved James T. Brady on the trial of Sickles in Washington, with which we were both connected, in the defense; because the view they held was that you cannot understand what marriage is, unless you go to the source from which it emanated. There is but one source, and that is the Bible. The feelings of a man at the discovery of his wife's infidelity, and the doom of the adulterer, are significantly and powerfully portrayed in these verses: McFARLAND-RICHARDSON CASE. 323 Can a man take fire in his bosom, and his clothes not be burned ? ■ Can one go upon hot coals and his feet not be burned? So he that goeth into his neighbor's wife; whosoever toucheth her shall not be innocent. Men do not despise a thief if he steal to satisfy his soul when he is hungry ; But if he be found, he shall restore seven fold ; he shall give all the substance of his house. But whoso comrnitteth adultery with a woman lacketh under- standing ; he that doeth it destroyeth his own soul. A wound and dishonor shall he get ; and his reproach shall not be wiped away. Tor jealousy is the rage of a man ; therefore he will not spare in the day of vengeance. He will not regard any ransom ; neither will he rest content though thou givest many gifts. Those who dishonor husbands are here warned of their doom. It is decreed against them by Heaven. A wound and dishonor shall they get, and husbands will not spare them in the day of vengeance. This destiny is certain. The wisdom of Solomon, which was inspired, said it, and so it must, and so it will be, until human nature is formed anew, and different feelings and impulses are bestowed upon us. Jealousy, which defies and bears down all restraint, whether it be what we technically call insanity or not, is akin to it. It enslaves the injured husband, and vents itself in one result, which seems to be inevitable and unavoidable. Where jealousy — what the Scripture calls jealousy — which is what we call insanity, for the purposes of this trial — takes posses- sion of a man's breast, he will not spare in the day of vengeance ; that is, he cannot spare ; for the Deity did not make man strong enough to stand a provocation like that. If provoked, the end cannot be averted. * * * * A vicious will, without a vicious act, says Blackstone (4 Bl. Com., 21), is no civil crime. So, on the other side, an unwarrant- able act, without a vicious will, is no crime at all ; so that to con- stitute a crime against human laws, there must be, first, a vicious will, and secondly, an unlawful act, consequent upon such vicious will. If there be a doubt about the act of killing, all will concede that the prisoner is entitled to the benefit of it ; and if there be any doubt about the will, the faculty of the prisoner to discern between right and wrong, why should he be deprived of the benefit 324 MODERN JURY TRIALS. of it, when both the act and the will are necessary to make out the crime ? The same writer also remarks, that where there is a defect of understanding, the will does not join with the act ; for where there is no discernment there is no choice, and where there is no choice there can be no act of the will, which is nothing else but a determination of one's choice to do, or abstain from, a particular action. He, therefore, that has no understanding, can have no will to guide his conduct. I am not controverting the legal presump- tion in favor of sanity, until the contrary appears. I am not deal, ing with legal presumption of any kind. I am treating of doubts and uncertainties touching guilt or innocence, which arise upon the trial of most capital offenses, and of the obligations which the law imposes, and which reason and humanity demand, that such doubts and uncertainties shall be removed before there *an be a conviction, and a consequent deprivation of life." Coke says : "When a person of sound memory and discrimina- tion unlawfully killeth any reasonable creature in being, and under the king's peace, with malice afore-thought, express or implied." It is to be remarked that every member of this sentence is of the weightiest import in determining the constituents of the crime. The killing must have been effected by a person of sound memory and discretion. It must have been an unlawful killing ; that which is deprived of life must have been a reasonable creature in being, under the king's peace ; and the killing must have proceeded from malice, expressly proved or such as the law will imply, which is not so properly spite or malevolence to the deceased as any evil design in general ; the dictate of "a wicked, depraved and malig- nant heart." Every one of these things must have existed, in order to make out the crime, and they must be proved or presumed upon the trial to have existed, or the prisoner is to be acquitted. They are primarily a part of the case of the prosecution, to be established to the satisfaction of the jury beyond any reasonable doubt. The law presumes malice from the mere act of killing, because the natural and probable consequences of any deliberate act are presumed to have been intended by the author. But if the proof leaves it in doubt whether the act was intentional or acci- dental, if the scales are so equally balanced that the jury cannot safely determine the question, shall not the prisoner have the benefit of the doubt? And if he is entitled to the benefit of the doubt in regard to the malicious intent, shall he not be entitled to the same benefit upon the question of his sanity, his understand- ing ? For, if he was without reason and understanding at the McFARLAND-RICHARDSON CASE. 325 time, the act was not his, and he is no more responsible for it than he would be for the act of another man." This is the law of Chief Justice Hale — that no man can commit a crime unless he has the control of his will — and our court of appeals, as will be seen hereafter, has decided that frenzy is a ground of exculpation from the consequences of an act done under its influence. It was elementary law two hundred years ago that understanding and will had to concur, to constitute a crime. In the McCann case, in one of the extracts read by me from the opin- ion of Justice Brown, we have the proposition as laid down by Blackstone, and I would say that no one has ever been able to state a legal proposition with a clearness and beauty equal to Blackstone. An unwarrantable act without a vicious will, is no crime at all, and a vicious will without a vicious act, is equally guiltless. Our statu- tory crime of murder in the first degree must have, first, a vicious will, and secondly, an unlawful act consequent upon it. "Where there is no discernment there is no choice, and where there is no choice, there can be no act of the will, which is nothing else but a determination of one's choice to do, or abstain from, a particular action." We ask the court to charge the following propositions to the jury: Even if the evidence as to the insanity of the defendant should leave it in doubt as to whether he was insane at the time of the commission of the alleged act, if it also leaves in doubt his sanity at that time, he is entitled to an acquittal. Though the evi- dence may leave the defense of insanity in doubt, if upon the whole evidence in the case the jury entertain a reasonable doubt as to the perfect sanity of the defendant at the time of the commission of the alleged act, they are bound to acquit him. If the jury cannot say beyond a doubt that the defendant was sane at the time of the commission of the alleged act, or cannot say whether, at that time, he was sane or insane, they are bound to acquit him. If the jury entertain a reasonable doubt upon all the evidence in the case as to the guilt or innocence of the defendant of the crime alleged against him, he is entitled to an acquittal. In England, the lives of two of their sovereigns have been attempted within this century, and in both cases insanity was recognized and admitted as a complete defense. We all know that whatever difference there may be in the loyalty of an Englishman to his government, he is tenacious of his affection for his sovereign, and all Englishmen are anxious and sensitive when the safety of the sovereign is interfered with or invaded. In this case, when these feelings and prejudices must have increased the horror of the 326 MODERN JURY TRIALS. crime, Hadfield was acquitted upon the simple ground of insanity. He armed himself with a pistol, entered the theatre, and stayed there thirty or forty minutes, apparently as sane as any man in it, and when the king stepped forward to the front of the box to make his acknowledgments to his subjects, as they were cheering him. he stood up, took deliberate aim, and fired several shots at the king. He was arrested, tried, and acquitted upon the ground of insanity. So that in that country the fullest scope is given to this plea, even where the sovereign is concerned, and the defense always prevails there in proper cases. It is a principle of the common law of the land — the greatest system of human wisdom ever given out to the world — that the law does not excuse a man who makes himself drunk to slay his neighbor. The law recognizes no right in him to set up his immo- rality against his criminality; but if his neighbor makes him drunk by force or contrivance, and he should commit a crime while in that state of intoxication, the principle would not apply. In the first case it is self-imposed madness, and in the second it is a forced or compelled madness. Does not this analogy hold good here ? Who made this man drunk? Richardson. And he slew him. And how can it be claimed that this man is to pay, for the deed which Richardson con- strained, the forfeit of his life. That which goes into a man's mouth, and disorders his brain, is as nothing to that which goes into his mind and maddens his intellect. Who reduced this pris- oner to a condition in which he was bereft of consciousness and will ? Who mixed the contents of and compelled him to drain the bitter cup from which he drank for years ? Was it not this which caused his derangement ? The man who lays a slow match to the happiness of his neighbor and maddens and frenzies him, ought to be compelled to take the consequences of what he thus brings about. The prisoner was the victim, not the cause of his frenzy. We want the court and jury to remember that this man did not madden himself, but that he was maddened by the combination, unveiled and exhibited by the evidence on this trial. The suddenness of the explosion is no argu- ment against it, for sudden insanity exhibits itself in delirium in sickness. Sometimes it disappears almost as suddenly as it came, yet an act done under its influence is guiltless. In this connection, I desire to refer to a case once very familiar in this county, where the defense was conducted by my own brother, who offered on the trial no medical evidence in support of the allegation of insanity. It is the case of Amelia Norman. McFARLAND RICHARDSON CASE. 327 The prisoner was indicted in this court for an assault with intent to kill. She had been led astray by a man, who deserted her after he had ruined her, and appeared determined to turn her over to a fate almost inevitably awaiting a fallen woman. She was willing to give him up, but wanted some assistance from him to start her in respectable life. He refused her this, although she tried to soften him in every way. She surrendered herself to absolute despair; and in a moment of frenzy, as he was entering a public hotel in this city, first appealed to him in piteous tones, and finding him inexorable, plunged a knife in him, almost taking his life. This was the act for which she was indicted, and the trial took place at the January term of this court, 1844. After a trial of four daj's, she was acquitted, and when the verdict was rendered the welkin rang with the cheers of the populace, loud enough to be heard blocks off from the court-room. She was taken in hand by a celebrated authoress, who heard of her wrongs and stood by her until she passed through that ordeal. There was no medical evidence as to the condition of her mind when she committed the act, but, as in the Sickles case, the jury were left to tell what it was from their own knowledge of human nature. The recorder, in his charge to the jury, made use of this remark, as reported in one of the newspapers of the day, referring to the defense of insanity which had been set up: "That the best rule for the government of the minds of the jury was their own common sense view of the case," meaning that that was the cor- rect mode of passing ujion the case under the legal instructions received from the court. We did not introduce any evidence of insanity in the case of Daniel E. Sickles, because we thought it unnecessary, as he slew the seducer of his wife as he stood waving his handkerchief, with adulterous intent, in the open street. We went to the jury upon the common sense of the matter. We knew that no man could be anything else than frenzied under a provocation like that. You do not want a doctor to tell you how you would feel, if, on returning home, you found your house had fallen, burying its inmates beneath its ruins. How much more harrowing the ruin when, instead of the material household, it is the moral household that falls ! How much greater the calamity ! In this case of Amelia Norman, the recorder left it to the jury, as men of common sense, to say whether, when she found her seducer was inexorable in his determination to entail upon her lasting ruin, he had not himself provoked that moment of insanity in which she plunged her knife into his bosom. 328 MODERN JURY TRIALS. I will now refer to the ease of The People v. Jtleim, and here again we desire to return our thanks to Judge Edmonds for the great interest he has taken in this case. Kleim's case will be found reported in I Edmond's Reports (Select Cases), page 13. This prisoner was tried at the oyer and terminer in this county for March, 1845. He was indicted for a most barbarous homicide, in setting fire to the building in which the deceased (a woman) resided, and forcibly detaining her therein, at the same time inflict- ing wounds upon her with a sharp instrument, by means whereof she was suffocated and injured so as to cause her death. The trial occurred before Judge Edmonds and two aldermen, and resulted in his acquittal on the ground of insanity. The disease appeared to be monomania or melancholia. In this case, moral insanity was introduced into and firmly established as a part of the jurispru- dence of this state. The charge of the judge to the jury was as luminous, as accurate conception and clear language could make it. In one place he said : " If some controlling disease was in truth the acting power within him which he could not resist, or if he had not a sufficient use of his reason to control the passions which prompted the act comjdained of, he is not responsible." In another part of his charge he said : "And it must be borne in mind that the moral as well as the intellectual faculties may be so disordered by the disease as to deprive the mind of its controlling and direct- ing power." In another part of his charge he said : "In order then to constitute a crime, a man must have memory and intelli- gence to know that the act he is about to commit is wrong, to remember and understand that if he commits the act he will be subject to punishment, and reason and will to enable him to com- pare and choose between the supposed advantage or gratification to be obtained by the criminal act, and the immunity from punish- ment which he will secure by abstaining from it. If, on the other hand, he have not intelligence and capacity enough to have a crim- inal intent and purpose, and if his moral or intellectual powers are so deficient that he has not sufficient will, conscience, or control- ling mental power, or if through the overwhelming violence of mental disease his intellectual power is for the time obliterated, he is not a responsible moral agent, and is not punishable for criminal acts." If your honor will go over this subject, you will find that the doctors are right in saying that the test of intellectual insanity is absurd when applied to perceptional, emotional, or volitional insanity. You will be kind enough to observe this, and I hope that in this case we will have from the court, in its charge to the McFARLAND-RICHARDSON CASE. 329 jury, some such originality on the law of insanity as was had from Judge Edmonds in the Kleim case. He was the first judge who planted this doctrine of moral insanity in this state, and he did it because when " the right and wrong test " was first applied to defenses of insanity, it was not discovered or understood that the perceptions, emotions, or will could be diseased, as distinct from the intellect. I desire now to call attention to the case of Freeman v. The People, 4 Denio's Reports, 9. The prisoner had been sent to the state prison, at Auburn, for horse stealing. He was probably inno- cent, and, on his liberation, deeming that he was entitled to be paid for his labor during his term of imprisonment (five years), he endeavored to commence suit against different individuals to obtain compensation. Not succeeding in this, he concluded that he must commence killing with that view, and accordingly commenced with the family of Mr. Van Nest, who resided some four miles from Auburn. He killed four persons, and seriously wounded one. He was indicted for the homicides at the Cayuga oyer and terminer. The fearful character of his crimes (as they were believed to be) rendered his conviction a foregone conclusion. The trial occurred in July, 1846, and resulted in a conviction of murder on one indictment. He was defended, as a matter of charity and humanity, by the Hon. William H. Seward. Many will remember the bitter feeling against the prisoner existing in our own commu- nity. He was a negro, and his victims were whites. Even against his counsel prejudice uttered itself, because of the color of the slayer and slain. The defense was that he was an idiot, or insane. The conviction was carried, on writ of error, to the supreme court, where the judgment of death was reversed, and a new trial granted. Pending the new trial (in August, 1847), the prisoner died. An examination of his brain after death showed disease, proving that the condition of the brain is not to be reached when a man is alive, and proving his unaccountability before the com- mission of his act. An honest jury had, mistakenly, pronounced him sane, realizing the strength of public feeling against the defense of insanity. Beardsley, J., who delivered the opinion of the court, construed our statute as to unaccountability for a criminal act committed in a state of insanity, and held that the words "no act done by a person in a state of insanity can be jsunished as an offense " referred to a state of insanity " in reference to such act." He rather con- demns the submission of the test of right and wrong in the abstract, and says that "the insanity must be such as to deprive the party 330 MODBEN JURY TRIALS. charged with crime of the use of reason in regard to the act done." Partial insanity, where it covers the act done, is fully vindicated by this able jurist, who claims the fullest irresponsibility for an insane act. He illustrates this by showing that a man, partially deranged, does not necessarily commit an insane act. It is only where his deed is the result of the derangement. The importance ■ he attached to the insanity of an act is visible in the remark, "the act, in my judgment, must be an insane act, and not merely the act of an insane man." It will be observed how applicable that prin- ciple is to this case. If the jury believe that the shooting of Rich- ardson by Mcfarland, on the afternoon of November 25th, 1869, was an insane act, the prisoner is not responsible for it, and though it would not necessarily follow because the prisoner was insane on some subjects, that he was insane as to that particular act, yet if he was insane as to that act and sane on other subjects, that would not deprive him of his right to irresponsibility. I now refer to the case of Cole, who was twice tried at Albany, I think, in 1869. On the first trial before Justice Ingraham, the jury disagreed. On the second trial, before Justice Hogeboom, he was acquitted. I cite the case for some of the principles contained in Judge Hogeboom's charge to the jury, as reported in 7 Abbott's Practice Reports (new series), page 321. As the court will remem- ber, Cole was indicted for the homicide of one Hiscock, once a member of Assembly in this State. Hiscock seduced the wife of Cole, who was an officer in the army of the United States during the war, and some days before he met Hiscock at Stanwix Hall ; Albany, his wife had communicated to him the fact of her dis- honor. He met him, and drawing a pistol, shot him, and the ques- tion was whether the presence of Hiscock rendered him irresponsi- ble for his act at the time he shot him — whether the operation of the presence of Hiscock upon his mind was such as to frenzy him, and to render him unaccountable for what he did. Judge Hoge- boom, in one part of his charge, says : " The confessions, or alleged confessions, of the wife do not prove it. They were not admitted for such a purpose, and are not to have that effect. Their intro- duction was permitted, not as 'furnishing evidence of the facts themselves, but as communications made to the husband, and which were calculated more or less to operate upon his mind, and influence his conduct, and to enable you, in the light of subsequent events, to judge how far they did so operate, and to determine to what extent the knowledge or information of these facts was cal- culated to explain and to mitigate, or to justify the homicide sub- sequently committed. As interpreting the prisoner's subsequent McFARLAND-RICHARDSON CASE. 331 conduct, as throwing light upon the state of his mind, they are admissible and proper to be considered." Again, he says : " In this case the adulterer — if adulterer he was — was not detected by the husband in the actual commission of his crime, nor under cir- cumstances from which its then very recent perpetration, so far as the evidence discloses, could have been fairly inferred. The period of adultery — if adultery there was — was long since passed. The knowledge or information of its commission had been communi- cated to the prisoner several days, at least two or three days before, and a sufficient time, in the judgment of the law, had elapsed for the passions to cool, and for reason so far to regain her undisputed or real sway as to forbid individual vengeance, and to pronounce the act of premeditated killing — if such it was — the crime of murder. " True it is, as I have already informed you, if, notwithstanding this lapse of time, the crushing weight of this domestic tragedy had driven the prisoner's mind to absolute distraction, and dethroned the reason of the husband, he is permitted to find immunity from punishment in the mental alienation with which he was thus over- whelmed." | As regards this prisoner, it would seem that his desertion by this woman, and her almost notorious cohabitation with Richardson , from the period of her desertion to the time of the shooting in question, are not the only maddening causes we have to rely on, but that he was principally maddened by the reflection that they still had possession of his youngest son, and that, if they carried out their programme in reference to that son, they would transfer him from his natural to his artificial parent, Richardson, and would remove from him the name of his natural father, and put upon him the name of a father chosen by this wife. It was the distrac- tion consequent upon the inability to discover whether they would not place this son beyond his father's reach altogether, which revived and reanimated the previous causes, and gave them fresh- ness, as though they had just occurred, notwithstanding they had occurred some two or three years before. Mr. Brady — whose name can never be mentioned by any one without the most melancholy recollections, that we ever lost him — nor without the most pleasurable recollections, that he ever should have existed — used this language, in relation to that portion of the charge to the jury in which the judge intimated to them that, if the facts warranted, they could return a verdict of "manslaugh- ter " against his client : "With reference to what has been said by the court, upon the question of finding the accused guilty of, 332 MODERN JURY TRIALS. ' manslaughter,' I desire to say on behalf of the prisoner, that, in the judgment of his counsel, there is no rational or possible view- by which the offense can be demonstrated ' manslaughter,' and that the prisoner declines to accept the offer of that sympathy that would induce a verdict for that offense, and would rather die than be sent to the state prison." The jury retired, returned to the court for further instructions, and then retired again. "Subsequently," for I read from the report, " they came into court, and the foreman stated they found the prisoner to have been sane at the moment before and the moment after the killing; but they were in doubt as to his sanity on the instant of the homicide. The judge charged the jury that they must give the prisoner the benefit of the doubt, if they had such rational doubt, founded upon the evidence, and could believe such doubt to be well founded upon such a condition of the case as was presented by this statement of the jury. The jury ren- dered a verdict of " not guilty.' " The jury in the Cole case were instructed that if he was sane immediately before and immediately after the shooting of Hiscock, nevertheless that he was entitled to the benefit, and was within the meaning of our statute as to insanity, if he was insane at the very point of time (of which they were to be the judges) of shooting Hiscock — that that would exonerate him from the conse- quences of the act preferred against him as murder in the first degree. Jndge Hogeboom delivered this instruction to the jury which we ask to have repeated in this case, as to the immunity resulting from a recent or sudden cause, operating upon the mind of Cole : "If the jury believe that, at the very time of the com- mission of the act alleged against him, from causes operating for a considerable length of time beforehand, or recently or suddenly occurring, the defendant was mentally unconscious of the nature of the act in which he was engaged, he was and is legally irrespon- sible for it." The jury can hardly fail to believe that when the deceased entered the Tribune office he did not expect to see the defendant, nor the defendant him, for there is no evidence to show that he anticipated meeting Richardson there. On the contrary, if he had any purpose, it must have been to see Mr. Sinclair, for he was there in the morning inquiring for Mr. Sinclair, and if he had seen him that interview might have allayed his distraction, and he would not have gone again unconsciously into that office as he did. There is not only no evidence that in the afternoon Mr. McFar- laud expected to find Richardson in the Tribune office, but there is McFARLAND-RICHARDSON CASE. 333 no evidence that the inmates of that office expected him there at the time. My solution of the case is this, that whenever Richard- son met McFarland before, McFarland could and did control him- self, and went out of his way; and that on this particular occasion, he encountered him in his insane mood, and when he was entirely beyond the power of self-control. I mean to argue from the facts, that, on other occasions, McFarland was rational, and controlled himself, but that that retributive justice, which has prescribed the fate of adulterers, directed Richardson on this occasion into con- tact with him when he was in that demented condition which ren- dered him an involuntary instrument in the execution of Divine or Heavenly vengeance. I mean to argue that he did not expect to see the deceased when he entered that office; but that, at the sudden appearance of the destroyer of his domestic peace, the memory of his great wrongs rushed with overwhelming force upon him, and placed him under the influence of that ungovernable frenzy in which he committed the act. Justice Hogeboom says, that when a person's faculties are for a time unsettled, and insanity enthroned in their place, he is not responsible for his acts. In Willis v. The People, 32 N. Y., the great intellect of Chief Justice Denio remarked, " that if the prisoner, when he killed the deceased, was in such a state of mind as to know that the deed was unlawful and morally wrong, he was responsible, and that otherwise he was not." Here is a case which can well be understood. "Morally wrong," are words that men of science can deal with. Many things are contrary to law which are not opposed to morality. This restricts the ability to judge between right and wrong to the capacity to judge between what is morally right and wrong. Should this court advance to this jury the "right and wrong test," it is important that the ability of the prisoner to discriminate between what is "right and wrong," should be qualified by the word "morally," so as to constitute an ability to judge between what is morally "right and wrong." Let it be understood, "morally wrong," for upon a proper interpretation of those terms depends an important issue. To submit the "right and wrong test" in the abstract, as it has been said, without the qualification of an ability to judge between right and wrong in relation to the particular act charged, would seem to be monstrous, and to be hardly less irrational with that qualification. The word "moral" or "morally" makes it more reasonable. It is wrong to disobey a corporation ordinance forbid- ding the putting of ashes on the sidewalk, though it cannot well be morally wrong. Sufficient intelligence to know that the viola- 334 MODERN JURY TRIALS. tion of such an ordinance was wrong would not, or might not, be sufficient to discriminate between what was "morally right and wrong," There is nothing in respect for, or the violation of, such an ordinance, one way or the other, or very little, to indicate whether a man is sane or insane, or to enable an inference to be drawn as to his capacity to distinguish between "moral right and wrong." To put such a test to a jury as the ability to judge between " right and wrong," terms in a certain sense predicable of obedience to or disobedience of such an ordinance, cannot be claimed to be the proper standard. I shall refer now to the case of Mr. Sickles, which occurred in the city of Washington, in the District of Columbia, in the year 1859; and when I refer to it I call from their graves the illustrious counsel with whom I had the honor to co-operate on that mem- orable occasion, to give to me the benefit of their eloquent tongues, as I stand here, trying to save this injured man from the peril which hangs over him. We trust they are in that sphere where happiness is neither measured nor limited. They have left behind them noble records and noble utterances, which, when they come to be quoted before this jury, will reach their hearts with a pene- trating power that never can be attained by eloquence of mine. Mr. Sickles was tried for killing Philip Barton Key in the city of Washington. According to the testimo7iy, Key had been consid- ered by Mr. Sickles a reliable personal friend, and as such had been admitted to intimacy with his wife. It was also shown by the tes- timony that he was under strong obligations to Mr. Sickles; but he took advantage of the kindness and consideration with which he was treated, and debauched his wife. It so happened that he was around Mr. Sickles house shortly after the wife had made a con- fession of her shame to her husband, waving his pocket-handker- chief as an adulterous signal, and as his bad fortune would have it — and as Richardson's bad fortune would have it — he ran upon his death when he little expected it. Oh, how just that retribu- tion ! How well would libertines do to consider, when they plan their moral demolitions, that before they reach the goal of their ambition they may be intercepted in their pursuits as these men were! The evening before the fatal Sunday, the wife of Mr. Sickles had made a confession to her husband, and he was standing by the window when he saw Key pass by giving the adulterous signal, whereupon he rushed out in a state of frenzy, and slew the deceased, giving him three wounds with a loaded pistol — and the jury would have sustained him if he had given him three hundred. McFARLAND-RICHARDSON CASE. 335 He was determined to do the thing right, and the jury sustained him in it. The prosecution claimed that it was a case of " remorseless revenge," and an attempt to add mutilation to murder. The jury, at the close of a trial occupying over four weeks, acquitted the defendant after an absence and a deliberation of about an hour and a quarter. On that occasion two propositions were laid down under the auspices of the eminent counsel, with whom I had the honor to be associated. One was, that the man who debauched the wife of his friend earned his death, and got it meritedly; and the other, that the husband could not have held back his hand from slaying him, if he had tried. Mr. Stanton joined in and approved of these propositions, and so did Mr. Brady. There was no summing up, but merely an argument to the court for " instruc- tions" to the jury. The court granted the instructions to the jury contained in the two following "prayers" (among others), as asked by the defense: "If, from the whole evidence, the jury believe that Sickles committed the act, but at the time of doing so was under the influence of a diseased mind, and was really unconscious that he was committing a crime, he is not, in law, guilty of mur- der. If the jury believe that, from any predisposing cause, Sickles' mind was impaired, and at the time of killing Key he became or was mentally incapable of governing himself in refer- ence to Key as the debancher of his wife, and at the time of his com- mitting said act was, by reason of such cause unconscious that he was committing a crime as to said Key, he is not guilty of any offense -whatever." The question was not how long it had taken Mr. Sickles to reach the condition of mind in which he was — how long the cause had been working to produce that state of mind. His condition was produced in an instant, and was engendered by the appearance of the man who had debauched his wife. Let me read to the jury an extract from the most eloquent argument of the late Edwin M. Stanton, better known as the great War Minister of modern times. He it was who directed the energies of this great nation during the civil war in which we were recently engaged. However individ- uals may judge his character, it seems to be generally conceded that he is more entitled to gratitude for the successful issue of that gigantic civil struggle, than any other person connected with that strife. "What, then, is the act of adultery? It cannot be limited to a fleeting moment of time. That would be a mockery; for then the 336 MODERN JURY TRIALS. adulterer would ever escape." We know that the adulterer has chances, whenever he comes in contact with the object of his lust. It is only a mere matter of meeting. If man and woman once commit adultery, the frequency of the adulterous act depends on the frequency with which they meet. It is always adultery. "But law and reason mock not human nature with any such absurdity. The act of adultery, like the act of murder, is supposed to include every proximate act in furtherance of, and as a means to, the con- summation of a wife's pollution. This is an established principle in American and English law, established from the time of Lord Stowell, as will be hereafter shown. If the adulterer hire a house, furnish it, provide a bed in it for such a purpose, and if he be accustomed, day by day, week by week, and month by month, to entice her from her husband's house to tramp with him through the streets to that den of shame, it is an act of adultery, and is the most appalling one that is recorded in the annals of shame." Tes, but this case transcends it. Richardson hired a room, and put his bed — the craven libertine — so near the wall which divided him from the room in which this man and wife slept, that he could hear them even breathe. If he had had any decency in his composition, he would not have done this. He placed himself where he could hear every movement they made, and control the movements of the wife completely. " If, moreover, he has grown so bold as to take the child of the injured husband, his little daughter, by the hand, to separate her from her mother, to take the child to the house of a mutual friend while he leads the mother to the guilty den, it pre- sents a case surpassing all that has been written of cold, villainous, remorseless lust." That does not for one instant compare with the wicked conduct of this Richardson, for he kidnapped this poor man's child, that he might carry on the adultery with her mother. He could not control her until he could control the child. "If this be not the culminating point of adulterous depravity, how much farther could it go ? There is one point beyond. The wretched mother, the ruined wife, has not yet plunged into the horrible, the revolting condition, to which she is rapidly hurrying, and which is already yawning before her. Shall not that mother be saved from that? And how shall it be done? When a man has obtained such a power over another man's wife that he can not only entice her from her husband's house, but separate her from her child for the purpose of guilt, it shows that by some means he has acquired such an unholy mastery over that woman's body and soul that there is no chance of saving her while he lives, and the only hope of her salvation is that God's swift vengeance shall overtake him. The McFARLAND-RICHARDSON CASE. 337 sacred glow of well-placed domestic affection, no man knows better than your honor, grows brighter and brighter as years advance, and the faithful couple whose hands were joined in holy wedlock in the morning of youth find their hearts drawn closer to each other as they descend the hill of life to ' sleep together at its foot.' But lawless love is short-lived as it is criminal; and the neighbor's wife, so guiltily pursued, by trampling down every human feeling and divine law, is speedily supplanted by some new object, and then the wretched victim is soon cast off, and swept through a miserable life and a horrible death to the gates of hell — unless a husband's arm shall save her. Who, seeing this thing, would not exclaim to the unhappy husband, ' Hasten, hasten, hasten to save the mother of your child, although she be lost as a wife. Rescue her from the horrid adulterer; and may the Lord, who watches over the home and the family, guide the bullet and direct the stroke.' And when she is delivered, who would not reckon the salvation of that young mother cheaply purchased by the adulterer's blood — aye, by the blood of a score of adulterers ? The death of Key was a cheap sacrifice to save one mother from that horrible fate which, on that Sabbath day, hung over this prisoner's wife, and the mother of his child." Thus you see, gentlemen of the jury, that this great man raised his hand and prayed that the Almighty would lend Himself to vengeance upon the adulterer, by nerving the arm and directing the bullet of the injured husband. The following is the peroration of Mr. Brady's final remarks to the court on the "prayers for instructions:" " And I will be permitted to say, whatever consequences may result from the declaration, that in view of all that has transpired in the city of Washington, to whose citizens on this jury Sickles commits his life, his character, all that is to elevate or to keep him in existence (for in our entire confidence in the integrity and judg- ment of your honor and this jury, we are convinced that no harm can come to Sickles out of this trial); in view also of the relations of Mrs. Sickles toward him before he came to this city; in view of what he knew of her, of the extending of this shame from the mother to the child, which we suppose the evidence fixes on Key, Sickles might have gone an3^where else in the world but to New York, if he had not resented that indignity. He could never have returned to the city of New York and been accepted for one moment among any of his former friends!" ******* In John Manning's case, the prisoner was indicted in Surrey, 22 338 MODERN JURY TRIALS. England, for murder, for the killing of a man, and pleaded not guilty. The jury, at the assizes, found that the said Manning found the person killed committing adultery with his wife, in the -very act, and slung a jointed stool at him, and with the same killed him; and resolved hy the whole court that this was but manslaughter; and Manning had his clergy at the bar, and was burned in the hand, and the court directed the executioner to burn him gently, because there could not be greater provocation than this. This has been the law in this state since 1823; and I allude to it to prove how correct, legally, the estimate is we place upon the value of the marital relation. The court remarked to the jury that it was for them, under all the circumstances, to say whether " the ■crime charged upon the prisoner was murder or manslaughter, or justifiable homicide; and observed, if the jury were of opinion that the prisoner committed the act while the deceased was in criminal intercourse with his wife, it would not be murder, or even man- slaughter, but would be justifiable homicide, se defendo. Her con- sent would be of no avail to increase or extenuate the crime, if in the husband's presence." Under this law, this husband had a right to avenge the betrayal of his wife: 2 Wheeler's Crim. Cases, page 4*7. ( I repeat, there is no proof that Richardson was expected at the Tribune office, nor, as I have already suggested, that when Mr. McFarland went there, he expected to find him there, or to have him come in after he got there, or that he had any susjjicion at all or had any right to indulge a suspicion, that Richardson would he on those premises that afternoon. If that of itself is not sufficient to rebut the idea of premeditation on the part of Mr. McFarland, is it not clear that, if he was perfectly sane, and had wanted to kill Richardson, he would have selected a more auspicious spot than he did? If he went into the Tribune office, nerved to slay Richard- son as a matter of previous determination, it is folly to say that when Richardson met him on previous occasions and put his eye upon him, he quailed ; for a braver, more chivalric man than Daniel McFarland, if that be the fact, never lived. For a sane man to go into the lion's den to slay his adversary, where he was physically so disproportioned to the physical power of the estab- lishment, as Daniel McFarland was in the present instance, strikes one as so incredible, that it has only to be stated to be rejected by the jury. When a man gets even with a wrong-doer, or means to get even with a wrong-doer, he takes him at a disadvantage; and if Mr. McFarland in this occurrence did knowingly give Richard- sou all the advantages they say he did, a braver man never drew McFARLAND-RICHARDSON CASE. 339' the breath of life. It seems absurd to us that he would walk into that establishment, pistol in hand, expecting to encounter Richard- son, when the chances were that his pistol might have missed fire, and he would have been stamped to death by the physical force of the inmates. We submit, therefore, if you need any evidence as a starting-point to satisfy you that the defendant must have been out of his mind when he entered the Tribune office, that it is sup- plied by the fact that he gave the deceased all the odds in his power against himself. Another suggestion I desire to call your attention to is this — the certainty with which the bullet of the injured husband takes effect — and I regard that as a strong moral lesson. You often read accounts of policemen who, are fired at when they are endeavoring to arrest desperate characters. In some instances policemen will surprise burglars when engaged in their work. They oftentimes surprise them when escaping with their plunder. In attempting to arrest them sometimes three or four shots are fired in rapid suc- cession at the policemen, near enough to take effect, but without harming them. Unless you suppose they are in coats of mail, impervious to the attack, how can you account for it in any other way than upon the principle that some unseen hand turns the bullet off. I have often myself been struck with the miraculousness of the escape of policemen under such circumstances ; but in every instance where a frenzied husband sets about shooting his man, he succeeds ; and one shot generally fetches the business. There, seems to be a perfect certainty about the matter, from which there is no escape, thus showing the extreme moral justice of the act. The prosecution have left this Mrs. McFarland before this court in the attitude of a mistress instead of a wife. I wish that to be distinctly borne in mind. We proved by Miss Anna Burns that the female she saw married to the defendant in December, 1857, now wears the name of Richardson, and the prosecution have dubbed her " Mrs. Richardson." They have not shown that she was divorced, or that there has been a subsequent marriage ; and they have permitted her name to leave this court as being that of her paramour. The necessity for that was this : To have brought in that marriage would have, of necessity, placed Mrs. Calhoun before this court and jury in such a manner as that she must have been perfectly riddled, and to avoid that, they did not dare to go into the reason why Mrs. McFarland now bears the name of Richardson. I submit to you, on the evidence, that she appears to be nothing more or less than the mistress of Richard- 340 MODERN JURY TRIALS. son, because they have not shown the first marriage was annulled. They have not gone into the proof on that subject, nor have they permitted us to go into it. We have the fact that the woman left her husband, and was never exonerated from that marriage. She now bears the name of a man who, we say, was her paramour ; and she stands before the world in that character. I now come to the occurrence itself — the shooting on the twen- ty-fifth of November, 1869. You will find that the evidence for the prosecution leaves it in a very unreliable state, and from the obscure manner in which it is left I argue that you will adopt your own presumptions as to what the occurrence was, rather than the affirmative evidence for the prosecution. All the witnesses for the prosecution are in the interest of the Tribune establish- ment. THE KILLING WAS INSTANTANEOUS. We believe there was scarcely an instant of time between the entrance of these two persons, and that the coincidence was brought about to work out the Divine vengeance, and that it was impossible for the adulterer to escape. Mr. King says it was fifteen minutes past five when the defendant came in and stood abreast of the desk. They make twelve minutes from his coming in to the shooting of Richardson, though the act must have been almost simultaneous. Mr. King says it was not very dark when the shooting occurred. The prisoner was in Mr. None's office not earlier than twenty minutes before five, and he was there nine or ten minutes, so that he must have left it a little before five o'clock in the afternoon. On that afternoon the sun set at twenty-nine minutes before five, and daylight, as usual, lasted about half an hour afterwards; so that that would bring dark at about one min- ute past five. Mr. King was right. We have no doubt the deceased was shot about dusk. They had gas lighted in the office, but we maintain it was not absolutely dark; that Mr. McFarland reached the office before it was full dark; that Richardson came in almost simultaneously, and that having, as Dr. Hammond says he had, congestion of the brain, to occasion an explosion nothing was needed but the application of the match. You are, gentlemen of the jury, men of common sense. You will perfectly understand, that if, on the Broadway side of this park, this man was in a condition in which he was not fit for per- sonal liberty, he could not, in a few seconds, resolve himself into a perfect state of calmness. The explanation of this matter is this: McFARLAND-RICHARDSON CASE. 341 He was not there long enough to be observed by the inmates of that office. The thing was so sudden, they scarcely knew the man was there before the pistol was fired, and then there was such a disturbance and embarrassment, they were not conscious of what took place afterwards. They did not know enough to raise an alarm. It was not known any one was shot when he went out, nor did McFarland himself know he had shot Richardson in a vital part of the body. How did he know when he fired that one shot, that that shot had taken effect ? Why was he permitted to retire without molestation ? The answer is, that the thing was so instan- taneous, and created such amazement and confusion, the persons there were hardly conscious of what went on. He might have been in Mr. Sinclair's office, or any other part of the building; but I want to show how determined they are to destroy this man. Mr. Carver said he thought he saw him there at three o'clock in the afternoon. "Suppose," I said, "we show that at that time he was miles away from there, what then ? " It was because of my hurling that bravado at him — a mere professional bravado — he was induced to shrink from what he stated, and retract every word of it. The object of that was to show that Mr. McFarland was mousing around the office waiting for Rich- ardson. As to the fact of Richardson being armed at the time of the occurrence, it is perfectly apparent. If it has no other significa- tion than this, it shows that he was prepared to kill the prisoner. It shows precisely that he was armed to make himself superior to the man he had wronged; and you will perceive his guilt in this. Why did he wrap that pistol in a flannel cloth and hand it to a friend for the purpose of being concealed, when he did not know how many minutes of life where then, left to him ? Why did he carry out his wickedness against this man in trying to suppress so important an evidence as that, when he did not know how many minutes he had to live, and when he wanted to have it said, when he was gone, that he was assassinated — an unarmed man — by the man who had prepared himself beforehand to cause his death when he encountered him ? He was so wicked to this man that, at the very last moment, he did not want it known to any person but those who would keep it concealed, that he had a malicious intention against the prisoner. He did not want to have it known, not only that he earned death, but that he was pre- pared to deal death to him who had suffered such great wrongs at his hands. Let me ask your attention for a moment, gentlemen of the jury, 342 MODERN JURY TRIALS. to the peculiarity of a husband's position. A husband outraged like this one has to do something; he cannot lie down under it. If he shoots he is a murderer, and if he sues he is a craven. If he wants money he has no spirit, and if he rises to the dignity of an avenging manhood he must go to the gallows. What is he to do? Is he to lie down under it? I have read, you the undying words of the lamented Brady; I have read you the prayer of the immor- tal Stanton ; and where is the man whose heart pulsates with humanity that does not respond to every sentiment contained in them. Let me here refer to the case of Bunnell v. G-reathead, 49 Barbour's Supreme Court Reports, page 106, which was decided in this state in the Second Judicial District, where a husband got a verdict of ten thousand dollars against a party for debauching his wife. He had followed his wife to a wood-shed, caught her and her paramour in the very act of adultery, did not interfere, and, as his own witness, proved it on the trial. The jury gave him a verdict of ten thousand dollars, but the court set it aside upon the ground that the man who could quietly see his wife dishonored was enti- tled to no damages at all. That is the doctrine of the court. I ask your honor to look at this case, in which the court virtually decided that such a verdict, if upheld, would, in effect, countenance and build up vice and immorality. Let me now refer briefly to a father's right to his child. This man makes no claim to the body of this woman; but he is a father, and he wants his child. According to the learned commentator Blackstone, that great duty of protection, owing by a father to his child, is a natural duty, rather permitted than enjoined by secular law, working so strongly as rather to need a check than a spur. Speaking of the obligations of maintenance a parent is under to his child, that great commentator uses language more potently descrip- tive of the extent and strength of paternal affection than anything of mine could possibly be. I will read his language: "The muni- cipal laws of all well-regulated states have taken care to enforce this duty; though Providence has done it more effectually than any laws, by implanting in the heart of every parent that natural or insuperable degree of affection, which not even the deformity of person or mind, not even the wickedness, ingratitude and rebellion of children can totally suppress or extinguish." The reciprocal duty of children to their parents is beautifully described by the same writer. His language is, that " the duties of children to their parents arise from a principle of natural justice and retribution. For to those, who gave us existence, we naturally owe subjection and obedience during our minority, and honor and reverence ever McFAKLAND-RICHARDSQN CASE. 343 aftev; they, who protected the weakness of our infancy, are enti- tled to our protection in the infirmity of their age; they, who by sustenance and education have enabled their offspring to prosper, ought in return to be supported by that offspring, in case they stand in need of assistance. Upon this principle proceed all the duties of children to their parents, which are enjoined by positive laws." * * * The woman was not alone in her iniquity. Mrs. Calhoun, an accomplice, writes her: "My dear Mrs. McFarland," — After a while it is " My darling," and pretty soon she is ready to eat her up. "It was a good inspira- tion which led you to write to me, and I believe I wanted to hear from you." — In another place she says: "But for this ignorant present I could wish myself with you in the smallest farmhouse that ever took root in a cleft of the hills." "And you, I hope your desire and purpose for the stage has not faded " (Mrs. McFarland had evidently written nothing about the stage), " nor been trampled out by hard hoofs of necessity. Have you not had any encouragement? I am very useless in that way, having no direct theatrical influence, but I will try to obtain some." Is this not trying to get her on the stage ? "I know that you would succeed, and I fully believe it to be your best and noblest work." It is said by some friends of this lady that these letters were not written for the public eye. No, they were not ; and that is what makes them more potently significant. They were written for the eye and mind of one person, and their publicity was not reckoned on. Well, she goes on : " Nothing so much as the stage needs good lives and good heads." This is not complimentary to the stage nor is it true in point of fact. I have the honor of being acquainted with many noble men and women on the stage, and I have their testimony that the stage is as high morally, and in every other way, as any other avocation pursued on this continent. Then she says : " I know I could help you in the direction of your wardrobe, but I feel there is not much else that I can do." Mrs. McFarland was an abortion as an actress — never could, and never was meant to succeed — yet Mrs. Calhoun says : " I think you have so many gifts, your beautiful voice, your changing color, your varying, soulful face, your earnestness and freshness of nature, your love for your art — and in your love for your children you have also the highest incentive. Dear child, I wish I could make 344 ■ MODERN JURY TRIALS. your path straight and smooth, to the highest success ; but only that success is highest to which we make our way with pain and toil." This list of gifts for the stage was not true in Mrs. McFar- land's case. She had none of the talents or requirements for the stage. It was simply a statement meant to work upon her weak- ness, and it did. Then she tells her, "If you do succeed in making an engagement, I shall not have one shadowy fear of your his- trionic success, and I shall really feel that I have done some good in the world — a condition of feeling which I have often felt to be unattainable." Commenting on the intercepted letters from Mrs. Calhoun to Mrs. McFarland, he said : It is enough for me to show that as a husband he had a right to speak in reference to the associates of his wife. She then goes on to say : " It is profanation for you to stay with that man. You shall not ! No woman ought to put her woman- hood to open shame, as you have been forced to do for years." She never knew her until January, 1866. "It is most cruel, most devilish. Tou cannot work ; you cannot advance ; you can make certain of no future for yourself and the children, while you stay." Then she goes on to say : " My darling, you will leave him scath- less ; the world is more generous than we think about those things. Every thoughtful man or woman will justify you, and you can shake off the shackles and work with free hands. It is dreadful to have you fight against such odds. I think you could live — yourself and Percy — for what you earn now, and if you can only be free, so that you can improve, your salary will be increased. It is wonderful that you have been able to do anything with your disabilities, and I do think that now you may do so much. Oh, do leave him, my darling ! " See what a prayer that is. "Oh, do leave him, my darling ! It is so wrong that you should stay with him." Friday Mvenlng. "MyDakling — We have just received Mr. R.'s letter." The wretch was so exultant over his victory that the first thing he did was to write to those who would be most gratified at knowing the fact. " I am so glad that you have left M. Do not, I beseech you " — here is prayer all the time — " Do not, I beseech you, return. Do not let any weakness of mercy possess you." What is it that makes a woman angelie? It is the tenderness of her heart. It is the readiness with which her eye suffuses, and drops the tear of pity and sympathy at human suffering. Here she exor- McFARLAND-RICHARDSON CASE. 345 cises from her own bosom that celestial element of woman's char- acter, and asks this wretched, erring woman also to expel it from the limits of her own breast. "Do not let any weakness of mercy possess you." Don't forgive your husband. What a remark that to make. She wrote to a woman she knew was likely to forgive him. But she says : Don't forgive him ; don't extend to him any mercy. "It is happy that the stroke has fallen, no matter what heart-break come with it." He (pointing to the prisoner) sits here to-day as the result of that heart-break. That broken heart has placed him where you now see him." " I could be glad that you suffer, if your suffering would keep you away from him. My darling, for whom I would die, do not so wrong your womanhood as to go back. Tou must not ; shall not ! When I come back you shall come straight to me and stay. I will have it so ! I will come to-morrow, if you need me. Write me, my darling, all things ; even if you are distracted — write." She knew that the woman, then, had not given up all love for this man, but she had determined she should, if it was in the power of her persuasion to accomplish that result. I do not mean to read more of this letter than the final portion of it ; it is this : "All my heart is yours. Let Mr. R." — she turns her then over to Richard- son — "Let Mr. R. help you. He is good and strong. Stay where you are until I come, then come to me, my darling." Read these letters for yourselves, gentlemen of the jury, and put your own construction upon them. One more letter, and I have done. I am not afraid, for I am emboldened by my oath to do it, to read these letters, and let them carry their own com- ments. This letter is not dated, but it was written in February, 1867: "My Daeliwg — I suppose you must be snow-bound, as I am, and I send a good-morning. Lillie and Junius pronounced your Lady Capulet better than Mine. S.'s Juliet. There is incense for genius. I shall work all day, and be ready to help you to-morrow." Gen- tlemen, tell me the meaning of what I am now going to read to you, and I ask the court to attend to it while I read it : " Sacrifice yourself by going to Hennessey's, or in any other way. My fate cries out, and informs me that I wish to know him ; really, to get at him. I am quite sure there is something behind his gray eyes and mobile face. I don't like knowing people indif- ferently." 346 MODERN JURY TRIALS. Does not that mean this? "You go to Hennessey's, make his acquaintance, and then introduce me." Is that a false construc- tion of it? If it is, I desire to stand corrected. I have always regarded this as a note which should never be offered to the public eye, and I have only consented that it be presented to the public, under a sense of duty that satisfied me I otherwise would be traitor- ous to this man. Let me read it over again, if there is a possibility of mistake about it : " Sacrifice yourself by going to Hennessey's, or in any other way. My fate cries out and informs me that I wish to know him ; really to get at him. I am quite sure there is somthing behind his gray eyes and mobile face. I don't like know- ing people indifferently." "There are just three persons who are much to me in the flesh." They say that those initial letters are "You." There maybe a doubt as to whether they are " J. R. Y.," but they are a man's initials. If you read this letter, you will find that it is not a female, but a man, she refers to. A word, gentlemen of the jury, upon this intercepted letter. You have heard it read over and over again. It would be a waste of time to read it to you now. My construction of it is this: That it refers to a perfect system of philosophy, professed in and prac- tised by this man Richardson. You will perceive — and almost the outset of the letter shows it — that the sooner he went to his grave, if this was his doctrine, the better for society — " Don't be disturbed about your family, little girl. Families always respect accomplished facts; my hobby, you know. I once outraged mine." Here he implies that she has outraged hers. She had no cause to leave this man, nothing of the kind. He continues: "I once out- raged mine a great deal worse than you ever 'can yours, and they are the straightest sect of Puritans; but time made it all correct." I ask you this: Does he not here concede that in leaving her hus- band she outraged her husband ? But he tells her that the iniquity of the outrage is really to be its success; that the world do not look to how ends are brought about, so long as they are brought about. "Accomplished facts" are all the world wants. If this was the belief of this Mr. Richardson — and that it was we have his own handwriting — was he a fit man to live in society, if there was any legal way of depriving him of his life? What man could be more dangerous than the man who would say: "No mat- ter how I get your purse, no matter how I get your wife — if I fail, I may be infamous; if I succeed, I am all right." The counsel of this man must put his case before you. The court will tell you that that is their sworn duty, and they cannot McFARLAND-RICHARDSON CASE. 347 shrink from it, no matter whom it strikes. We are not asked to present to you our own convictions. We are bound to tell you this man's case, and to place it before you as he gives it to us, though it strikes the first and the tallest in the land. What right have I, in the performance of professional duty, to consider into what breast I strike a pang, so long as my act is called for by my pro- fessional oath. What would you think if, when you sought to pass that door, you were warned by those who are connected with the prosecution, that if you rendered a verdict in favor of this man, you would be shot to the earth ? What would his honor upon the bench think, if he was told to-day that if he did not charge this jury against the prisoner he would affront those powerful influences that stand behind this prosecution, and that he could expect noth- ing but immediate death ? What more solemn sanction binds him than me ? What more solemn sanction binds you than me ? I have taken an oath to defend this man before this court and jury, and to place before you all the material he has put into my hands, which I can possibly make available for his deliverance from this charge. What alternative have I but to do precisely as my oath, of office demands — spread out the facts and argue upon them to you precisely as any other lawyer at this or any other bar would do? Mr. Wakeman says he slept with Mr. McFarland, at his house in Twenty-sixth street, on Sunday night, November 14, 1869. After they had been in bed fifteen or twenty minutes, he spoke to him, and received no answer. After they had laid down about half an hour, he started up in bed, raised his hands, and exclaimed: "My God! my God! where is my child?" A moment after he laid down again, became restless, and then wakened. Mr. Wakeman went to Woodside with him on the eighteenth of November, to get tidings of his child. The defendant told him they were trying to get Danny away from him, and that was the ruling idea in his mind. Witness first went to a grocery store to inquire about the child, and brought back the report that Richardson was married to his wife. Mr. McFarland nearly fainted, cried, and was frenzied. The witness then went and made further inquiries, and reported to him the result, which was that Richardson had been there the day before, and had gone to Massachusetts, where the mother and Danny then were. Dr. Ward, in speaking of his dreams, said he told him he had dreams and visions about his wife and children, and that he must have them back or die. Dr. Miner says he frequently spoke to him about his dreams. He would ask him how he passed the night, and he would say: "My God ! I passed a horrible night; I 318 MODERN JURY TRIALS. could hear the voice of my little boy." He hears that voice now, and will hear it ever, until he is, as he should be, in the full posses- sion of his rights as a father. He was mad, at the idea of being separated from his child. He almost became deranged at the sug- gestion. Where is the man, no matter how willing he may be to lay down or relinquish his marital rights, who is willing to give up his natural property in the issue of his own loins ? To Dr. Miner he frequently spoke about his dreams, and on one occasion said: " My God ! my God ! I have passed a horrible night. I have heard the voice of my little boy calling to me. I could see my wife in Richardson's arms. I sprang out of bed, trying to catch the villain by the throat. Then I woke in a tremor and per- spiration." I will here call your attention, gentlemen of the jury, to some very pointed testimony of some of the lay witnesses. Mr. St. John Green, one of Richardson's Boston counsel in the fight to keep this father away from his children, saw McFarland between April, 1867, and the close of the year. He said he appeared to be near the border-line of insanity. He had a wild look, and seemed as though he was on the point of disturbing the habeas corpus pro- ceedings, when present at them. Edward K. Phillips, another of Richardson's Boston counsel, said that during that period McFar- land behaved like a madman. His conversation was very painful. He was always going over bis griefs. The witness mentioned this fact to his senior counsel, and left it to him to suggest to the court that McFarland was unfit to be the custodian of his children, from irrationality. Then the evidence of Mr. Eastwood, an intelligent merchant of this city. He had an interview with McFarland, near the time of this shooting, and he tells you: "My impression and opinion was that he was not in his right mind. I regarded him as a monomaniac." Mr. Peter Gillespie, another witness, had an interview with him, in May, 1S68, and he says: "I thought him perfectly crazy." He told this witness that he would be at his funeral in three or four days — that he intended to end his existence; that he could not live. Then there is the evidence of Mr. Cough- lin, who was in the same office with McFarland, in June, 1869. Out of consideration for him, he was treated with attention and delicacy in the office. The duties they assigned him required no mind. They gave him such things to do as required little memory and thought. Yet he would forget all about them. They then put them down on paper, but he would still forget. He was understood to be in great trouble. On one occasion when Cough- lin saw him, he was more nervous and excited than ever before. McFATJLAND-RICHAEDSON CASE. 349 He said: "My wife has got a divorce, and she is going to many Richardson. He is going west to start a newspaper, and is going to take my wife and child with him." On this occasion he insisted on accompanying Coughlin, and he could not shake him off. His conversation was very incoherent, and it was sometimes impossible to make head or tail of what he was saying. Then there is the testimony of Mr. William Marsh, who was with him from January, 1867, when he was appointed to a position in Mr. McElrath's office, down to September of the same year. He says that, until in Feb- ruary, he was a sociable, kind-hearted, entertaining man; then all of a sudden he changed, and in March, 1867, he commenced talking to himself, and when a person took his hand to shake hands with him, the fingers were contracted, so that you had to pull them out to shake hands with him — that this was after he secured the inter- cepted letter, and that he had a horrible expression of the eyes. Ten days before the shooting, Mr. Marsh met him by St. Paul's church; and he was then in such a state of nervousness, he did not dare to leave him in the street. He said to Mr. Marsh: "Lend me thirty dollars. If I had it, I could upheave the universe; but I have no friends and no money, and I can do nothing without it, as everybody is against me." He said he could do nothing against Richardson without money. The next evidence I shall call your attention to is that of Mr. Bowen, the blind preacher, and how strongly does it speak as to the condition of this unfortunate man, when it could be appreciated by a man without eyes! Mr. Bowen knew him in Newark in 1842, when he was a harnessmaker; and he told you how McFarland employed his leisure hours in study. He met him afterwards, in Boston, in 1867, during the pendency of the habeas corpus proceedings, and he saj-s : " I noticed a peculiarity in his voice that I had frequently noticed in persons in insane asylums." Then we have the evidence of Mr. Isaac E. Clark, one of the firm of Sanford & Le Barron. He testified that such was the state of McFarland's mind, they did not dare let the judge in Massachusetts see him, for fear both children would be kept from him. It was under the apprehension of that danger a compromise was made, and this wicked woman secured the younger child, and he was allowed to retain only the elder. In fact, time will not allow me to go over all the pointed testimony adduced here to show the insane condition of this man's mind. We have produced forty-one lay witnesses and three medical experts for that purpose — forty-four witnesses in all. Almost four juries, more than three full juries — have taken their oaths in this case that this man is not responsible for his deed. 350 MODERN JURY TRIALS. Let me, for an instant, gentlemen of the jury, refer to the medical testimony adduced for the defense. We have examined Dr. Hammond, Dr. Parsons, and Dr. Vance — three of the most dis- tinguished men, in their own peculiar line, in this country. Dr. Hammond is, I understand, considered to be at the head of this department in this country. I have conversed with medical gen- tlemen on the subject, and they concur in according him that standing. He and Dr: Vance were witnesses against Reynolds, who was recently executed in this city, and but for their testimony he would have escaped the gallows. They both pronounced against the insanity of Chambers, who was lately tried at a court of oyer and terminer, held in Brooklyn, and acquitted as insane, although Dr. Vance alone gave evidence, as a witness, for the prosecution. It has been proclaimed, since that acquittal, that Chambers, in a glorying spirit, boasted that he managed to humbug every physi- cian but Dr. Vance. Whether Dr. Hammond and Dr. Vance are right or not in the testimony they have given as to Mr. McFar- land's mental condition, it is clear, from what I have stated, that they are not the men to say what they do not fully believe, and that when they say a man is insane, they are worthy of credit, because, though they were contradicted in the two instances to which I have referred by the judgments of other medical men, events proved that they were right. As to Dr. Parsons, I may state to the jury that he is at the head of one of our public institu- tions, and one of the most expert alienists in the land. The testi- mony of Dr. Hammond is substantially this: The ailments of Mr. McFarland had produced violent congestion of the brain, and when the brain is in that condition, it is only necessary for some power- ful and sudden emotion, related to the main cause, to act upon the congestion, to precipitate an individual into some such act as is charged against the prisoner at the bar. His evidence was, that when the prisoner's brain was in that condition — Richardson hav- ing been the cause of all his wrongs and sufferings — the very sight of him would be all that was needed to make him perfectly insane, and betray him into the act which he then and there per- formed. Dr. Hammond says that normal persons obey the intellect — that is, act upon reflection. There you find reason, memory, judgment — the analyzing and deciding powers of the mind. There are four departments to the mind — the perceptions, the intellect, the emo- tions and the will. A man may be partially deranged, in the derangement of any one of these functions of the mind. If a man is deranged in his volition or will, he is as truly unaccountable for McFARLAND-RICHARDSON CASE. 351 the act performed under that impulse, as if he was completely and radically deranged. Insanity has been defined to be, for the pur- poses of this trial, an organic disease, destroying freedom of mind and action. As to the threats which Mr. McFarland is said to have uttered against Richardson, we have had forty-one witnesses upon the stand for the defense, who have spoken of his violent manner, for more than two years past, in alluding to his domestic troubles ; but not one of them testified to ever having heard him utter a single threat against the libertine. I want you here to take notice that not one of those witnesses heard him utter such a threat. Still, a handful of witnesses are brought here for the prosecution to state that during this period he uttered the most atrocious threats against the deceased. The best evidence against that testi- mony is the fact that no account of these threats reached Richard- son himself, nor was there any complaint made at a police office in consequence of them. Sinclair testified to a threat — but it was a conditional one — in regard to and dependent upon Richardson's marriage with his wife ; and the man Howell, who testified in regard to other threats, stands stamped before you as utterly unworthy of belief. We have proved to you, by the evidence of two respectable witnesses, that he is so perfectly infamous as to be utterly unworthy of credit ! In a few moments, gentlemen of the jury, I expect to conclude, You must have been satisfied, from certain suggestions made by the counsel for the prosecution in questions put by them to the different witnesses called on the part of the defense, that some person was prompting them, and communicating to them facts that could only be known by two persons, or that would only be likely to be known by two persons — the prisoner at the bar and his wife. If you will pass over other incidents of this trial, in your memory, you will unquestionably be convinced that the private counsel for the prosecution has been directly or indirectly in conference or communication with Mrs. McFarland, in order that he might have a cue for the examination of the witnesses for the defense. "What more horrible thing ! That this wife, in addition to what she has already done, should nevertheless try to saddle upon this husband and father the cruel fate designed to be the goal at which this prosecution is to arrive. I have had to hurry, gentlemen of the jury, through the latter portion of my remarks. I will rely upon your recollection of the evidence. I have sufficiently refreshed it in many particulars to enable you to supply such deficiencies as may exist in that part of 352 MODERN JURY TRIALS. my performance, and, in fact, to supply such deficiencies as may exist in the whole of my performance. I know that you are over- come by the length of time I have addressed you. I am satisfied the court is worn out ; and I know that I almost begin, physically, to sink under the ordeal through which I have passed. I have been greatly assisted by my noble professional brother (Mr. Gerry) in this case. He and I had the honor to be associated on a previous occasion, when our labors were great, but in this instance they have been much greater than they were on that occa- sion. I feel under the greatest obligations to him for his aid, and it would be doing the greatest injustice to him were I not to state publicly how much of his time and talent he has spent in the pre- paration of this defense. Certainly, no case ever tried in this country has taken more labor in its defense than this one; and, however much credit has been given to me, it is but due to the cause of truth to say of many of my performances that the credit of them, at least, should have fallen almost exclusively upon the shoulders of my learned associate. For months sacrificing interests beyond conception, he has clung to this case with an ardor I have never known to be equalled by any counsel with whom I have had the privilege of being associated. If, in passing from the sphere of my duty on this occasion, I have gained always the same grati- fication for him he has gained for me, my satisfaction will be beyond all measure. The position you occupy, gentlemen of the jury, is a proud one. Little did you think, when this event first happened, that you would be called upon to assume the responsibilities of such an occasion. Meet them like husbands — fathers — men. The highest interests of society are involved in this proceeding. Beware how you announce that the desecration of the marriage relation creates no other emotion in a manly bosom than that of mere passion or revenge. By all the considerations which hallow it in your eyes, do not thus lightly estimate it. A home in ruins ! How distressing the desolation ! All sub- lunary happiness is short-lived, at the best. That of the family circle is not exempt. One by one its members may be summoned to other spheres — to take part in other cares' — to put on other rela- tions. Death may enter its portal, and receive from its number its victims. In all this there is pain, but grief is endurable in any form but that of dishonor. Domus arnica, domus optima — Home is home, though never so homely. The best home for us is that which receives us with the warmest heart, and welcomes us with the most cordial hand. Intra McFARLAND-RICHARDSON CASE. 353 paternos parietes — within the walls of the family mansion. How happy, how joyous are these words ! At their mention does not the memory revert, involuntarily, to the abode of our early days, where, gathered around the family fireside, in the interchange and correspondence of love and affection, father, mother, brothers and sisters constituted a little community in themselves. Who, if we could, would not be a child again ? To you are committed these sacred interests. Upon you are rivetted the eyes of an anxious public. You are here to reflect in your action the value you place upon your own hearths, and the affection with which you regard your own firesides. When you return to them from this place, may it be to bear to them the glad- dening tidings that they cannot be desecrated, with impunity, by the tread of the adulterer. Let those helpless innocents, who lean upon you, feel that they are still safe — that they still enjoy security. The purity of woman is not to be questioned. Her virtue is a tower of strength. It has ever proved itself able to withstand the strongest and most persistent assaults. Still are we not taught daily to pray that we may not fall into temptation ? In her appro- priate and exclusive department may she ever illustrate her scrip- tural portraiture — and may it ever be the highest ambition of every wife and mother to have it said of her, that " she perceiveth that her merchandise is good; her candle goeth not out by night" — that "she openeth her mouth with wisdom; and in her tongue is the law of kindness" — that "she looketh well to the ways of her household, and eateth not the bread of idleness" — that "her child- ren rise up, and call her blessed; her husband also, and he praiseth her" — and that "her husband is known in the gates, when he sit- teth among the elders of the land." Let those who dare dishonor the husband and the father — who wickedly presume to sap the foundations of his happiness — be admonished, in good season, of the perilousness of the work in which they are engaged. As the result of your deliberations, may they realize and acknowledge the never-failing justice of the divine edict, that jealousy is the rage of a man — and that he will not, can not, must not, spare in the day of his vengeance. Acquitted, and counsel heartily congratulated. 23 354 MODERN JURY TRIALS. THE KEWLAND-EVANS HOMICIDE. Trial at New Albany, Ind., May, 1866. hIstoky of the homicide. In the town of Bedford, Indiana, there were living, in the month of February, 1860, two men who were extensively known through- out the state of Indiana. One of them was Dr. Benjamin Newland, the other Prof. Madison Evans. Both were men of conspicuous ability, and each was the head of a family. The former was by several years the senior of the latter; and the ages of their children fcore relation to their own. The professor was a teacher and a minister of the gospel in the Christian church of the town; and the doctor's family were members of his congregation, and some of them of the church. The eldest of his children, a daughter, well educated, brilliant, and good looking, had been away from home at a boarding school near Terre Haute; and returned upon the even- ing of the homicide out of which grew the trial in the course of which the following speech was delivered. The facts developed in the trial were voluminous, and, in some important particulars, con- flicting; but in sum made the following case: Dr. Newland left his house in the fore part of the night of March 5th, 1866, and before the people had retired; and repaired to his office, where he armed himself with a revolver arid catling from his amputating case; and proceeded at once to the residence of Prof. Evans. The knife was rolled in brown paper; the pistol not visible. When he arrived there, the room near the side door was lighted, and he passed to the front door, where there was no light visible. Here he knocked; and Mrs. Evans came with light in her hand and opened the door. She was then in a delicate condition. The doc- tor, who had doubtless expected to meet and kill the professor the moment the door opened, had to change his plan from action to inquiry. He accordingly asked: "Is Mr. Evans at home?" She told him that he was not; but had gone into town to correct the proofs of a speech he had delivered a short time before, and which was being published in the county paper. After some further conversation, Mrs. Evans asked the doctor whether he had business with Mr. Evans. He answered, "Yes, madam; I have business with him." The whole interview was brief; and, at the time, excited no suspicion in the mind of the wife that the doctor intended any harm to her husband. After the homicide, however, NEWLAXD-EVANS HOMICIDE. 355 she did, indeed, think that there was something bodeful of evil purpose in the manner in which he emphasized the words, " I have business with him." But this was not marked at the time; and he returned towards the town, and she to her room. There lay between the town and the professor's house a deep hollow, which required the doctor to go down one hill and up another. He was heard to pass down the hill with rapid strides and loud breathing. He had passed the rill that ran between the hills, and reached the fence on his left that bounded the road lead- ing up to the town, when he heard some person coming down the hill on his own side of the road. He stopped at the corner of the field and called out: "Who comes there?" He was answered, "Evans." He said to Evans, before shooting, " Do you know my daughter Helen? You have seduced her, and I intend to kill you." And telling a friend, the next day, how it proceeded, he said: "I then shot Evans, and he did not afterwards rise. He begged me not to kill him, but I told him I intended to kill him." The wounds of the deceased were numerous and of the most horrible and deadly character. The evidence left no doubt that the doctor was the perpetrator of the homicide. Indeed, it was not denied. The defense was insanity. It was attempted to be proved that at an early period of his life, the defendant had suffered mental aberration ; and threatened to commit suicide. But it was shown that that condition had resulted from a chronic disease of the liver, of which he had recovered. All the other evidence tending to prove the defense, consisted in the daughter's statement that the deceased had seduced her several years before, when she was not more than fourteen years old, and kept up a criminal intimacy with her ever since ; that she was at the time of the homicide preg- nant by him ; and that he had never, down to the moment of her confession to her father, offered her any assistance. This confes- sion was made to her father, the defendant, on the evening of the homicide ; and just before he went out from home, to kill Evans. From home he went to the office of Judge Carlton ; and, finding it full of people and the judge not in, he waited for him on the sidewalk, conversing about agriculture until he came. They then went by themselves to the doctor's office, and held a long conversa- tion touching the seduction of his daughter, and his disposition to kill her seducer. Having given him some wholesome advice, the judge left him, promising to send his brother James to him. The speech, it is believed, sufficiently reveals both the state of his mind, and the cause of the tragedy, from this point to the close ; and the further statement of the facts are therefore omitted here. 356 MODERN JURY TRIALS. The ease was transferred from the Lawrence circuit court at Bed- ford, to the Floyd circuit court, at New Albany. This change itself was so greatly detrimental to the cause of the prosecution that but little hope of a conviction was entertained after it was taken. At New Albany the defendant had the advantage of very wealthy and influential relations, which he would not so fully have enjoyed at the scene of the homicide. The trial was set for May 6, 1866 ; and, both parties being ready, it proceeded forthwith. The evidence closed upon the tenth, and the argument on the four- teenth of May. The speech of Major Gordon, for the prosecution, was delivered May 12, 1866. It was never well reported, there being no short-hand reporter at the trial ; but the substance of the argument was published at the time in the Commercial, and, with slight and unimportant changes, is as it is here given. The defendant was acquitted, not because he was believed to have been insane at the time, but because the jury regarded him as so wronged in his paternal rights and affections by the deceased, that he had a right, by an older and higher law than that of the land, to kill the seducer of his daughter. Aud yet the course of the evidence in the case renders such views of justice absurd in the extreme. Thus, the daughter was permitted to tell the jury the story that she had told her father, touching her seduction, but all inquiry in regard to its truth, was cut off, on the ground that it was of no material importance whether it was true or false — the real question being : " Did she tell it to her father ; and did he believe it ; and did it thus become the cause of insanity in him ?" And so, no evidence to impeach her was allowed ; and no question was permitted to be made whether she was seduced by the deceased, or by some one else. Of course, fair play would have denied the defendant the benefit of an argument founded upon the assumed truth of the story of her downfall. But this was not denied ; and his counsel throughout justified the homicide on the ground of his injuries, under cover of a defense that, if true, could only have excused it on the ground of his incapacity to do an act that had any element in it that was either justifiable or culpable. The charge of the court was exceedingly conservative, leaving with the jury their constitutional "right to determine the law and the evidence." As the case is developed through the graphic and ingenious argument of Maj. J. W. Gordon, a celebrated advocate of Indian- apolis, a few words may be added on his manner of trying cases. He is now about sixty, in the full possession of his vigor and determined manner, his peculiar skill and thorough analysis of NEWLAND-EVANS HOMICIDE. 357 human actions. His forte is in trying fraud and criminal cases, appearing generally for the defense. He has a singular art of get- ting error enough to reverse a case three or four times, and wear- ing out his adversary, if possible. In the famous Clem case, five trials were secured, largely through his influence. After a careful selection of his jury, he addressses one man at a time, like Choate, gradually passing to every one on the panel, with a joke, story, illustration, or reason peculiar to his trade or employ- ment. His closing appeals are graphic and convincing. In this trial we find many touching and beautiful passages, in apt and suggestive language, such as, " I stand for the law, that will survive when we have perished and passed away; that is rela- ted to each of us, and defines the rights we shall enjoy, ere we are aware, or have passed the gates of life. It graciously meets us with friendly arms, leads us forward with paternal hands, teaches and trains us for our duties to others, goes with us through every stage of our earthly being, defends our graves from desecration, and our dust and ashes till the coming of the resurrection, and thus makes so sacred our final repose that the sweet rose planted by the hand of affection, or the wild flower blooming over our final rest, shall not be destroyed by the ruthless hand." A counsel once used this picture, which I give from memory, showing a separate point for a separate juror. It is both a vivid and exciting word-painting, and resembles Mr. Gordon's style. " I can see men on this jury who remember that sultry Sunday morning when we were tired and had slept late, when the enemy came upon us like a whirlwind, scattering fear and panic in his course, while our half -dressed company hurried to their saddles and saw a plain man, riding at a rapid gallop, on a big, black horse, along the lines, sending one man to the right, one to the left, one on one message, one on another, and before we could think, they were all in their places, when the command rang out on the clear morning air, 'Charge ! ' and we wheeled into line, and with a des- perate struggle, turned back the enemy that in a quarter hour would have driven all in the river! There was no rest for anyone that day. All day long we fought in smoke and dust, without relief or rations; and late in the afternoon I saw the man in slouch hat and dusty blouse galloping again up a hill, and raising his hat in mid-air, he said, '■Charge! double-quick! Charge!' and we charged, and won ! And when I looked up into that plain, strong face, on beard begrimed with sand and smoke, and saw his beaming eyes full of satisfaction at the work we had accomplished, i said, ' TJiat is the handsomest face I ever savj! ' That was Grant 358 MODERN JURY TRIALS. at Shiloh. My boy was in that battle, was shot, went down to an early grave. Had he lived he would have been nearly the size and age of this boy (the one he was defending), and ever since that awful day we have set the vacant chair and placed the plate at the table, but we shall see him no more, till the great day hereafter. Though we mourn that loss and feel for our boy, how would such a death compare with a death in prison ? Ah, gentlemen, death is never so terrible as -dishonor. It is an awful death to be buried alive in prison walls ! to walk the narrow halls and beg for liberty, saying, ' O, how sweet the air smells outside to-day; I never knew the sunlight was so good before!' Yet this is prison life, and prison death! Can you comprehend it? Can you understand it? You that think the weeks are long, while you serve your state and stay away from home ! You that long to see your flocks, your family, and even your favorite dogs, and count the days till you shall be free to go and gather up your little boys and girls ! Think of it, men ! Think of a hundred weeks, two hundred, three hun- dred, a thousand weeks, and no relief/ Shut out from light! Shut out from home! That is a prisoner's fate. Such is a prisoner's home. * * May the good angel of mercy keep your child and mine, and this poor boy — who is after all, somebody's boy — from such a dreadful death! " The surprise is all the more touching, as it comes in a way to convince and persuade a jury. Speech of Major Gordon, oe Indianapolis. Mat it Please the Court: Gentlemen of the Jiiry — I fully agree with Mr. Davis in regard to the importance of this case. In every respect it is an important case. The interests staked upon your verdict, whether we regard it as affecting the defendant or the public, are immense. On the one hand, all the defendant is, or has, or hopes, hangs upon your verdict; and, on the other, the just administration of the laws, the safety and sacredness of human life, the maintenance of social order, and the prevention and punishment of murder — the highest interests, and, indeed, the indispensable principles and conditions of society and life. It is impossible to exaggerate the importance of this case. Some things have been said by my brother Davis, which I should have been glad if he had omitted. I do not attribute any personal or improper motive for saying them; but, uttered without the qualifications which I am sure he must have intended, and without NEWLAND-EVANS HOMICIDE. 359 which they -would be both personal and insulting to all of us who differ with him in our views of the case — the guilt or innocence of the defendant — they deserve a passing notice. I shall give them that notice, therefore, which I think they deserve, before entering upon the discussion of the case on trial. I regard them as straw, or chaff, or dust, thrown into the case, by the gentleman, for the purpose of distracting your attention, confusing your minds, and so rendering them incapable of the right apprehension of the real questions involved in this trial, and of rendering a fair and just verdict upon them. In the first place, he has assailed some of the state's witnesses, because they have contributed money to carry on this prosecution; and has lavished upon them abuse that implies that, by so doing, they have violated some duty imposed by law, or made obligatory by custom or morals. Is it so, indeed ? Shall the citizens be told by the ministers of justice, in the presence of our courts and juries, and of the public at large, that, no matter what atrocity may hereafter be committed, no matter how poor and weak the friends of the victim may be, no matter how public sentiment, and law, and humanity may be outraged, he must not, under pain of forfeiting his character as a fair and honorable man, as a true wit- ness and good citizen, open his purse, or raise his voice or his hand to bring the malefactor to trial and justice ? If this be so, our wit- nesses are before the court, whose duty it is to repress such offenses by inflicting due punishment upon each offender, and to that end it has full authority. But I aver that they have not offended by so doing. They have bat done their simple duty. Had they clone less, they would have forfeited their character as good and public spirited citizens. It is the duty of all men who live in society to use all just means to prevent its laws from being violated in the first instance; and when they are violated, to bring home to the violator the penalties which they have prescribed. Those whom the gentleman has so cruelly assailed have been guilty of no other fault but what is thus imposed upon all as a duty. Instead of meriting censure, they deserve approbation and praise. Instead of forfeiting your confidence as good and true men, they have thus given you a new and weighty pledge that they are worthy of it. But the gentleman did not stop with his assault upon our witnesses and others who supported this prosecution. He could not allow us, who have accepted a place in the prosecution, to pass without censure. After telling you, with his accustomed modesty and man- ners, that "no honest man can say that Dr. Newland has commit- ted any crime," a dozen or more times, he went on to say, by impli- 360 MODERN JURY TRIALS. cation, at least, if not in direct terms, that, in his opinion, it was wrong in us to accept a fee to prosecute any man arraigned for murder. He even told you that he had never done so; and referred triumphantly to the example of the very justly celebrated John Rowan, of Kentucky, as the standard of professional ethics upon the subject. I always admired John Rowan, while he lived, and find no fault with his views of duty, in regard to prosecuting men charged with crime. If he thought it was wrong for him to do so, then he was right not to do it. Every man must in matters indif- ferent in law choose his own cause, and determine what he will and what he will not do. But this leaves me equally free to choose mine. And this I have done hitherto, and shall hereafter do, with reference to my own convictions of right and duty. As for the learned gentleman, I know not what may have been the motives that determined his course. He may never have been offered a fee to prosecute any one; or he may have declined it, because it was not satisfactory in amount; or from other motives of expediency. He has not told us what sacrifices he had made; and until we know, the facts that have shaped his career, his practice, and what he has revealed concerning it, are worthy very little consideration as fur- nishing an example worthy of imitation by our profession. I appeal to the court to say whether it is wrong for an attorney to accept an employment to prosecute a person charged with crime ? I am a sworn officer of this court— sworn to discharge my duties faithfully and to the best of my abilities. Have I violated my oath? Have I failed in the performance of my duties, by accept- ing this employment and the part I have taken in this prosecution ? If so, I am amenable to censure and to punishment. Your honor sits here to see that we do not violate the law, by any, public omis- sion of duty, or commission of wrong. My action, my whole con. duct in, and connection with, this prosecution has been open, pub- lic and known to the court. If I have committed any wrong which any gentleman has any right to refer to or criticize here, that wrong is equally known to your honor, as it is to him; and I now demand, for that wrong, the censure and punishment at your hands which my offense deserves. It is your right, it is your duty, to inflict them. I pause for your judgment. The Court — Major Gordon, you know you have done nothing wrong. Go on. I have, then, done no wrong. I am subject to no censure from the court. By what right, then, does the gentleman presume to question my conduct ? With what propriety does he even allude NEWLAND-EVANS HOMICIDE. 361 to it? It is out of the case; and should be left out of all considera- tion in its discussion and decision. It has been dragged into it for no lawful purpose; and to any man less kindly disposed than myself, would be regarded as offensive. What right has he to cen- sure what " the law allows and tbe court awards " to me as a right ? He is my senior in years, and as such I respect and honor him; but in my official relations and duties here I am his peer, and deny his right to censure me for choosing the duty that I shall perform, or the manner in which I shall see proper to perform it. [Here Mr. Davis apologized for what he had said, and disavowed all intention to be offensive.] Gentlemen, we live in a land of law. Our law is the express will of the people. It is enforced by the government, which is the agent, the creature of the people — in other words, the people organ- ized. But what is the law, the will of the people, which is the only sovereign we obey ? Where does it abide, and what does it do ? It is the body of principles and rules, which the people have adop- ted and enacted for the establishment of rights, and the preven- tion, redress and punishment of wrongs. It is everywhere, like the atmosphere which we breathe. It is the vital air, in which all rights live, and it is mortal to all wrongs and crimes. It is full of life and power to preserve life, and to make it safe and sweet — to prevent all crimes against it before they are committed, and to punish them after they have been accomplished. It is the law that protects all in all places; and pursues him who violates it to the injury of others, to avenge them. It teaches all to avoid collisions and harm on the highways, by admonishing each " to keep to the right.'' It is so common, so universal, so essential, that, grown used to it, it is only in its violations, and the retributions with which it follows them, that we realize its presence, at least, in so far as our natural rights and duties are concerned. Here, in this court, it is visible in its officers, the agents through whom its author, the People, have chosen, to give it practical expression* application and enforcement. It has brought us together from different parts of the state, and made us, for the time being, joint laborers in applying its general principles and rules to the particu- lar case, in the trial of which we are engaged. It is represented in his honor upon the bench, in each of you, and in the counsel engaged on both sides. Nor is it inconsistent with itself in the duties which even we sustain to it, or to the part we perform in the trial. On the contrary, if we be faithful and fair in the con- flict of opinion and discussion to which we are here called, our 362 MODERN JTRY TRIALS. labors will tend to lighten yours, and so make it easier for you to reach a right verdict. The law was before us all, and will survive, when we shall have passed away. It ante-dates all existing societies, and will remain when they shall have given place to new forms. It is related to each of us before we know that it exists; and defines beforehand the rights that we shall enjoy and the duties that we shall perform. It looks forward with prophetic vision and paternal solicitude, and provides for our safety and well-being, before we have passed the gates of life. It graciously meets us at our coming, and folds our naked and helpless infancy in its pro- tecting and motherly arms. It recognizes our rights, and shields them from invasion or harm, long ere we have any knowledge of their existence, or any power to defend them. It leads us forward, supporting our tottering steps, until the first duty is laid upon our shoulders. This it imposes with due regard for our weakness, and with a a-entle band. It teaches and trains us in each stage of our being for the duties of that which lies next before us. In a word, it goes with us through every stage of our lives, from the cradle to the coffin, and when we are buried defends our graves from des- ecration, and our poor dust and ashes from outrage and insult. And so it makes sacred the place of our final repose until the morn- ing of the resurrection. It will not allow even the rose, that the hand of love may plant, or the wild flower that may bloom there, to be touched or destroyed by any ruthless hand. The law grows out of the great and generous heart of the Peo- ple. It is framed and adapted to their wants by the common mind. It is their will, expressed in the manner and form which the consti- tution has imposed for their security against oppression from what- ever quarter. It must, therefore, rely upon the People — the order- loving, law-abiding — to keep it strong and steadfast, against the disorderly and the di-obedient who strive to destroy it, and to abol- ish the social order and personal safety and happiness it was ordained to establish and maintain among men. He who violates it, finds his offense measured and its punishment prescribed; and society, and its creature, the State, and all who exercise its functions, must abandon their duties, and set at naught the principles upon which- social order depends for its existence, before they can allow the guilty, on the one hand, to escape without that punishment, or before they can, on the other, allow it to be inflicted on the inno- cent. I stand before you to-day for the law. I stand against those, and those only, who have broken it, and whoask you to break it. NEWLAND-EVANS HOMICIDE. 363 I stand opposed to force and brute violence, and ask that the law may be enforced for their suppression and punishment; for upon the law and its faithful enforcement depend all the interests of the people — of the individual and community at large. If we abandon the law, we shall find ourselves at once adrift upon the great ocean of chance and uncertainty, driven by the winds and the waves of individual passion and interest against each other; and, like the mis- erable victims of shipwreck, sinking each other into the soundless depths of wretchedness and woe. We must not, therefore, abandon the law. It is the ark of safety to us all. Without it, life itself is a negative birthright. But here, in our present relations, we have no existence apart from the law. As judges, lawyers and jurors, we are its creatures. It is to us the breath of life. It is our creator, and has exacted from each a solemn oath of allegiance. We have taken that oath; and each of us stands bound by it, not only not to violate, but to maintain and enforce it; and this all must do, let it crush whom it may crush, or save whom it may save. I only ask you to perform your vows, when I entreat you to stand strongly up for the law. It is our only bulwark against the return of brute violence and barbarism. Let us see to it that it is kept strong and steadfast to-day; that it may so abide to-mor- row, and forever. Seduction and murder stand alike, branded by the law — the will of the people — your will — the will of us all — as it has been written for our direction in respect to wrongs to be avoided ; and, when committed, to be punished. According to our law, there are two kinds of seductions : one criminal and punishable as a felony, the other a mere private wrong to be compensated in damages. Where seduction has been accomplished by an unmarried man, under promise of marriage made to an unmarried woman, under the age of twenty-one years, and who was at the time of good character for chastity, the law punishes it as a crime ; but it is so careful of the rights of the defendant, even in this case, that no prosecution can be maintained unless the woman's testimony is cor" roborated by that of other witnesses. But when, on the other hand, the seduction has been accomplished without a promise of marriage, whether by a married or an unmarried man, the law allows no criminal prosecution. It only gives the parent of the girl or the girl herself, an action for the damages resulting from the seduction. It is no part of my duty to-day to discuss the question whether the law upon this subject is right or wrong, nor of yours to con- sider it. That the law is so written is the only fact with which 364 MODERN JURY TRIALS. his honor, or you, or I, have anything to do in our present rela- tions. If it has been unwisely so written, it must be corrected by the legislature. In the meantime we must obey it, or involve ourselves in the sin of disobedience. It is ours to enforce, not to make the law. In our capacity as citizens we may change it, if it displease us. In that case we can elect senators and representa- tives, and send them to the general assembly with instructions to amend it. Until that can be done, however, let the law be hon- ored, obeyed, and maintained by its ministers and the people, that so the principle upon which alone a government of law is possible among men, may be preserved. But let us not, so long as we need the protection of government, abandon the only ground upon which it can stand, either by acts of personal violence, or by law- less decisions of lawfully constituted courts. Both of these methods are evil ; but the last is far worse than the first ; for it murders the law in the name of the law, and tends to bring our social and political institutions to utter ruin. Murder too is a crime — -a high crime — next to the highest known to the law. Upon proof of the fact against any citizen, before a proper tribunal, he is subject to be punished with death, or impris- onment during his natural life. This is our law ; and, if such a case is now before you, for judgment, the duty of enforcing it is upon you, and you ought not to strive to avoid it. I do not think you will. Let me say, again, if the law of murder be wrong, let us send up our representatives to the general assembly and amend it ; for, until it is amended, it is right for us, both as its subjects and min- isters ; and everything else that may tempt us to break it is wrong, let it come from whatever quarter it may come. Since it is right, and because it is right, let us stand by and uphold it to-day, and so long as it shall remain the law. We are sworn to stand by it. Shall we break our oaths, and so far as in us lies, abolish soci- ety and government ; because they do not enable us to do what might be agreeable to our feelings, if it permitted ? But we have espoused our obligations to the law, and, by doing so, have said that, in our judgment the law is right. We have thus pledged ourselves, solemnly, before all the people, and before Him who is the Sovereign and Master of all peoples, that we will stand by and enforce the law. Shall we allow the father or brother of her who may have been seduced to kill him whom she denounces to him as the seducer ? The law declares such a homicide to be murder. Shall the slayer go unwhipped of justice, when the law declares that he shall die ? NEWLAND-EVANS HOMICIDE. 365 It vitiates all principle, for it sets up the injured one as judge in his own case. It receives evidence without oath, in the absence of the accused, and decides the case without hearing both sides. It sets up a rule that never can be equal in its application to all cases of equal injury. If it be allowed, where shall the poor, lone and unfriended orphan find her judge and avenger, when her unguarded feet have been misled by the wiles of the seducer, and she has fallen, never to rise again? Alas ! she has no father, no brother, no avenger. And so you would establish one measure of justice for those who have friends, and another for those who are friend- less. You destroy the equality of the law before the people, and the equality of the people before the law; and annihilate at one blow both the law and the state, whose organ it is. You do more; you root up the only principle upon which it is popular for a free popular government to stand. Are you willing thus to destroy our free institutions ? Are you willing to obliterate every trace of that equality among the people which gives them their chief value ? Is this labor of destruction, the defense has invited you ? Is this wicked work, my brother Davis has persuaded you ! Suppose you shall do the thing they ask at your hands, will you put an end thereby to seduction, or murder ? Suppose you shall say that, although seduction with bastardy, and without promise of mar- riage, is no crime, not even a misdemeanor — only the ground of a civil action for damages — yet you will allow it to be punished by the father of her who has been seduced, with death, can you after- wards, with any show of reason or justice, deny the son of the slaughtered man the right to kill the slayer ? If so, upon what dis- tinction ? In the case of the seducer, no crime has been committed; in that of the slayer murder has been done. Shall you allow murder in lieu of a civil action for a civil wrong, and deny it in lieu of a criminal prosecution for one of the highest crimes known to the law ? If so, where shall the matter end ? But suppose you grant to the son of the murdered man, when he shall have arrived at man's estate, the right to kill him who slew his sire, can you deny to the son of this second victim of the system you are urged to inaugurate to-day, the right to destroy, in like manner, the mur- derer of his father ? Do you not see that such a system leads to an endless series of murders? Do you not see that the function of the law must be abolished by the new principle that has been invoked in this case; and that wherever and whenever it may be adopted, the people must revert at once to a state of savage indi- vidualism, in which each will depend upon himself for all the rights he enjoys, and become the avenger of all the wrongs he may 3G6 MODERN JURY TRIALS. suffer? The result of the adoption of such a principle maybe foreseen by any one who can add two and two together. There is nothing more simple — no sequence more evident. Homicide has several grades. It is either justifiable, excusable or felonious. It is not contended here that the homicide proved to have been committed by the defendant is justifiable. The defense rests upon the assumption that it is excusable, because he was insane when he perpetrated it. If this is true, he is excusable; for the moral quality upon which alone a homicide can be either justi- • liable or felonious, does not pertain to the violence of a madman. He is excusable because he has no moral quality, and can impart none to his actions. A homicide, however atrocious it may appear at first blush, ought to provoke no resentment in the breast of an intelligent man, or just state, when it is found to have sprung from the necessity of disease. But the prosecution is not convinced that the horrible homicide now under consideration, can be so excused. Indeed, we are satisfied that it is not only not so excusable, but is in fact a felonious homicide, darkened by every shade of malevol- ence essential to constitute a murder in the first degree. Our law thus defines such a murder: "Every person of sound mind who shall purposely and with premeditated malice kill any human being shall be guilty of murder in the first degree." We think that all the elements essential to this definition have been proved beyond a reasonable doubt to have entered into the killing of Madison Evans by the defendant. On the part of the defendant, it is urged that, upon the whole evidence, there is at least a reasonable doubt whether the defendant, at the moment of the homicide, was of sound mind. If we are right, he must be convicted. If his learned counsel are right, he must be acquitted. The whole ground of contest lies here exposed to view; and it is so plain that "the wayfaring man, though a fool, need not err therein." I do not, therefore, propose to go into a discussion of the law of homicide. It is not involved in the case. I beg leave, however, to keep before you the definition of murder in the first degree. I ask you to remember that, "if any person of sound mind shall purposely and with premeditated malice slay another, the slayer will be guilty of murder in the first degree." Be careful to distinguish the elements of this crime. The slayer must be a person of sound mind. He must kill his victim. He must kill him purposely. He must kill him with premeditated malice. If these constituents enter into any act of homicide, he who does it is guilty of a murder of the darkest dye. It is really unnecessary to descend to the lower degree of murder; or to consider the law of manslaughter at all. NEWLAND-EVANS HOMICIDE. 367 My argument must stand or fall upon the definition of murder in the first degree. Still, it may not be amiss before going into that argument to say that, murder in the'second degree exists whenever a homicide may be truly characterized by all the elements of mur- der in the first degree, except premeditation. Manslaughter occurs wherever there is an unlawful killing of one human being by another, without malice. But it is unimportant to further con- sider in this case the subordinate grades of homicide, or even to • glance at distinctions that lie below them and outside of the range of crime. The defendant is charged with murder in the first degree. The fact of the crime is alleged to have taken place in Lawrence county, in the state of Indiana, on the fifth day of March, 1866. The means by which the deceased is alleged to have come to his death, are a pistol shot and several cuts and stabs with a knife. It will, therefore, be necessary, before the state can demand a* conviction of the defendant, that the evidence shall satisfy you beyond a rea- sonable doubt: First. That the defendant killed Madison Evans; Second. That he killed him in Lawrence county, in the state of Indiana; Third. That he killed him purposely; Fourth. That he killed him with premeditated malice. If these propositions are proved beyond a reasonable doubt, then you must find the prisoner guilty. Are they so proved ? It is proved, I think, to the exclusion of all reasonable doubt, that the defendant killed Madison Evans, at the time and place, and with the means, described in the indictment. Indeed, the defense admits as much. There is no controversy thus far. From this proof alone the law implies malice, and the defendant, if nothing further is proved in the case, stands guilty before you of murder in the second degree. This much the law infers from the facts. Standing upon this inference, the law allows the state to aggravate the grade of the crime by showing that it was premedi- tated; and the defendant to mitigate it by disproving malice, or that it was not unlawful, because excusable, or justifiable. If pre- meditation be proved, the offense rises in point of guilt to murder in the first degree. If the fact of malice be disproved it descends to manslaughter. If unlawfulness is excluded, the act passes out of the dominion of crime altogether. Does the evidence mitigate or aggravate the grade of the crime which the law infers from the fact of the homicide? To this question I invite your attention. I am persuaded that the evidence shows the act to have been 368 MODERN JURY TRIALS. deliberate. It proves premeditation. The defendant deliberately selected the deadly weapon with which he committed the homicide. His determination to kill the deceased is proved by his declaration to Judge Carlton, more than half an hour before the fatal act, that " that infernal Evans and I cannot live in the same world together;" by the connection he gives the homicide with an adequate existing cause for malice and revenge, namely: the seduction of his daugh- ter ; by his going more than half a mile in search of the deceased, armed to kill him ; by his inquiries concerning him at his own door ; and, after learning that he was in town, by his declaration that he would see him there ; and by what took place at the scene of the homicide, after he had learned that deceased was there. It was there that he asked the deceased the question : " Do you know my daughter Helen ? " and followed it, without waiting for an answer, with the declaration : "I intend to kill you." It is still further supported by the fact that, when he had shot the deceased down in his tracks ; and while he prayed him to spare his life, the defendant answered him : " No ; I am determined to kill you." And last of all, it is established by his declaration to Glover : "I place the whole matter upon a point of honor." But go back to the moment when he knocked at the door of Evans. Does any one of you doubt that he expected to meet Evans there ; or that his determination was then fixed to kill him, if he did? He had the fatal knife in his hand, concealed in the paper in which he had wrapped it. It would have been the instrument of death had Evans, instead of his wife, opened the door. If his malice was not premeditated, if he had not fully deliberated upon the homi- cide, how can you account for the calm and unimpassioned part he took in the conversation with the wife whom he intended, at the very moment of meeting her, to make a widow, by killing her hus- band upon the threshold on which she stood ? The homicide was deliberately done with premeditated malice ; and the defendant is guilty of murder in the first degree unless, upon the whole evi- dence, you shall have a reasonable doubt whether he was not of unsound mind when he committed the deed. Does the evidence leave a reasonable doubt of his having been, at that time, a per- son of sound mind ? I regard this as the only question involved in the case; and shall, therefore, by a fair analysis of the evidence bearing upon it, endeavor to satisfy you that so far from the evidence tending to such doubt, the admitted facts of the case, and even those relied on by the defense, are inconsistent with his guilt and exclude the doubt of his sanity. NEWLAND-EVANS HOMICIDE. 369 Before entering upon this discussion, I invite your attention to the alleged cause of the defendant's insanity. It is said to have been the recital of his daughter's wrongs by herself the evening of her arrival at home from the boarding-school — the same evening of the homicide. It has been assumed throughout this trial, but, I think, without any reasonable grounds to support the assumption, that the fact of his daughter's seduction, the ruin of his child, the disgrace of his family, and the shame and sorrow incident thereto, caused his excitement and the overthrow of his reason, and that he must, therefore, be excused. It has been said, more than once in the course of this trial, that these considerations affecting the honor of his house, were quite sufficient cause for insanity on the part of a man so very sensitive to shame and dishonor as the defendant. But I am not persuaded that these facts are shown to have had any connection with his excitement — much less to have been in any degree the cause of it. On the contrary, I hold, and shall endeavor to prove, that we must either wholly disregard the evi- dence which the defendant himself has given, or attribute that excitement, or whatever else it may be styled, to a cause far less adequate to its production ; and far less honorable to the defend- ant. What, then, was the real cause of the shock to his moral nature, which is alleged to have paralysed his will and destroyed his self-control? What was it that left him thus irresponsible for his action ? It was not, gentlemen, in my opinion, the slander of his daugh- ter's reputation for chastity. Neither was it the belief that she had been seduced and ruined. He had known that two weeks before. Upon receiving the letter from Bishop Hill, informing him that something deeply concerning one that was near and dear to him, required his immediate presence in Terre Haute, he had gone thither upon that errand alone. Pie had gone upon that information, to the source whence the Bishop had derived the knowledge that led him to write that letter. He had even been informed of the condition of his daughter, by an anonymous letter. He thus knew all. True, it appears that he pretended not to believe the story thus told him; but he was told, at the same time, that the faculty of the school where she then was, believed it to be true. Whether he believed it or not, the evidence does not inform, us. It was, at all events, sufficient to have let him know that all was not well with his daughter. It should have put him upon enquiry. Do you doubt that he knew it all? Did he not at least believe it? If he did not, how could he have gone home from Terre Haute, with the terrible uncertainty rending his soul, when 24 370 MODERN JURY TRIALS. the means of learning all — whether the horrible story was true or false — were so immediately at hand ? To doubt upon such a point, was more terrible than the most horrible certainty itself. How could he have gone home, doubting whether his darling daughter, whom he loved as the apple of his eye, as Judge Carlton has told you, was lost to herself, to her family, and to the world ; or whether she was still to remain the pride of his eye and the darling of his heart ? If he loved as is now pretended, and as I am not disposed to question, it is contrary to nature that he should have so acted, for " O, what damned moments tells he o'er, Who doubts, yet dotes, suspects, yet dearly loves." He must have known that she had fallen, or he must have held her cheap in his affections, indeed. In her affliction, this horrible story did not, as we are now told, even induce him to see her, although he was in the same town where she was, upon business connected with her reputation. Surely he could not so have acted, while uncertain 1 in regard to her downfall. Who that had the heart of a father could ? But, if he knew that the story was true, his con- duct is not at all inconsistent with the deepest paternal love. In that case, his own good sense would have told him that it would be better to avoid the scene that must have followed their meeting, until they could meet where no stranger's eye would witness their wretchedness and woe. He must have known it, therefore; and re- turned to his home satisfied of her downfall. If he did not know it, then he had no love for her, out of which the terrible sequel which we are investigating to-day could have come. I shall, therefore, as the most favorable and merciful conclusion to which the facts point, assume that he did know all; or, at least, that he did believe all that had been told him concerning his daughter. But mark the result. Did this belief produce any visible effect upon his manners, his conversation, or his life? No one beheld him returning from Terre Haute with all the marks of excitement and sorrow that would have been stamped, upon his face, if the theory of the defense is the true one. No one saw him weeping about Bedford after his return, in consequence of his blighted hopes in his lost child. On the contrary, Dr. Smith, his own witness, informed you that he rode home with him from the country ou the evening of his daughter's arrival, and that in a conversation lasting while they rode several miles together, he saw no change in his manner. He was the same Dr. Norland whom he had always found hina to be. He saw no symptom of grief, shame, or insanity about him. It was just about dark when they came into town; and the evidence NEWLA.ND-EVAJNS HOMICIDE. 371 shows that the first meeting between him and Helen took place immediately after his arrival. Before they met, his wife had told him at the gate that Helen was at home. The question which he then asked his wife, proves that he had already heard all about her condition; for, if he had not, it is without sense. That question was, " Is it true ?" His wife informed him it was true. Take that question and answer, and reconcile them, if you can, with any other supposition than the one that I have already adopted, namely, that he had heard the whole story of his daughter's seduction and pregnancy when he was at Terre Haute; and that after his return from that city he and his wife had talked it all over between them- selves, and understood it but too well. What antecedent can you find in all that took place between them at the gate for the pro- noun " it," in the question of the father, or the answer of the mother of the ruined girl ? There is none, unless you refer to their mutual knowledge of something that neither seemed to be able to utter in words. They each understood without words the hateful antecedent of "it," in the question, "Is it true?" That puts all beyond doubt. He had then borne the terrible secret of his daughter's ruin and shame, in his own heart, or shared only with the partner of his bosom, during the two weeks that immediately preceded the homicide; and no man, down to the last moment before meeting his daughter, had been able to see any change in his demeanor or appearance. It was not, then, the loss of his child and the shame of his family that drove him mad, if, indeed, he was mad. He was able to stand up against all that, and so bear himself that the world could behold no signal of the soul's distress in his form or features. This being so, we must look further for the cause of his subsequent excitement. From what followed, I am led to believe that its cause will not be found in the fact that Evans was even the seducer of the girl. Bad as that is assumed to be — and God knows, if it be true, it is bad enough — it was still not the climax of the seducer's wrong — not the real cause of his excite- ment, and alleged insanity. He had borne all that, and could have borne it still. We must go further, if we would reach the real cause of the terrible outburst of passion, insanity or crime that fol- lowed. I shall give you a solution of the difficulty before us in the defendant's own words. They were spoken in his own house the next morning after the homicide, to his friend, Dr. Raridan, and are as follows: "I asked Helen if Evans knew her condition ? She said he did; and had written her a letter sympathizing with her. I asked her if he had ever offered her any assistance. She said he had not. Then fire went through my brain, and I determined to 372 MODERN JURY TRIALS. kill him." Here, then, seems to be the explanation of the motive upon which he acted, or the cause of his insanity, if that shall better answer the condition of the case. He leaves us to infer what he may have meant by "assistance," but he leaves no room for inference that, if Evans had " offered her assistance," he might have been, to-day, a living monument of his sparing mercy. That much is certain. It is only necessary for us to inquire and find out if we can what he meant by "assistance." I have spent much thought upon the inquiry, and have been led by every effort reluc- tantly to the same ugly conclusion. It could not have been money that he meant; for she needed no such assistance. He, too, would have scorned to receive it from poor Evans, whose entire means would not have supported a single year. Even the offer, had he been both rich and generous, would have but added insult to injury. Dr. Newland was not the man to think of pecuniary assistance for his ruined girl. It was not that. Marriage was always out of the question. She knew that before she gave up to him the jewel which alone gave her life its value. It was true from the beginning. It remained true now, after the discovery at the close of their lawless love. A life stood between them. Mar- riage was not the assistance, therefore, to which he referred. What then was it? Was it concealment? It is said that such things may be concealed, and the world remain ignorant that they have ever been; because crime can shut the door in the face of dis- covery. Was it that? I blush to think so; but what else could it have been ? Try, gentlemen, try for yourselves, to find any other "assistance" that could have been intended; and, if you can find it in all the facts of the case, in the name of mercy and humanity give the defendant the benefit of your discovery. To me that seems to have been all he meant — the sum of his thought, and the pivot on which his determination to kill Madison Evans was sus- pended. Had the question been answered in the affirmative, the result of the whole matter might have been different. But it was answered in the negative. Then, "fire went through my brain, and I determined to kill him." That was "the point of honor" upon which the matter was to rest in all after time; when Evans should sleep in the " eternal dumbness of the grave." Alas, for poor human nature ! It seems never to be able to raise itself up to the contemplation of true excellence and goodness. It seeks rather to follow the shadow, than to enjoy the substance — to possess the reputation than the character of virtue. Thus, for- ever, do the sad experiences of life overthrow and destroy the golden dreams of our boyhood, which, born of enthusiasm and NEWLAND-EVANS HOMICIDE. 873 hope, made our existence glad, and sweet and beautiful as the gar- den of G-od. Not only do our experiences banish our dreams ; they strike to dust the ideals which, for us, brightened and glori- fied so many pages of the world's history. Who has not glowed with admiration and reverence over the legend of the Roman Lucretia, so cruelly ravished by the infamous son of Tarquin ? She was long the ideal of my soul of the true and noble woman ; but, in the presence of the facts revealed to us to-day, in real life, I feel that I must give her up. She, too, was weak and frail as the rest. Like them she worshipped the shadow because it was cast upon the earth, while she did not even see the substance that lived above the reach of her groveling thoughts. Else why did she, to avoid the reputation of vice and crime after death, surrender her- self at once to both and Sextus ? Surely the true worshipper of virtue would have rather died uncontaminated, than to have sur- vived its accomplishment in order to vindicate her name by an explanation that only told the world that not virtue, but its repu- tation, was the god of her idolatry. Why, what to her would have been the voice of the world, if she had bravely died to preserve her purity ? The reputation, even of chastity, is too dearly bought by the sacrifice of the virtue itself ; for after the barter it becomes a cloak and dupes the world with a lie. It is in such disguise that the brave Lucretia has duped mankind. She was too weak to do right, and leave consequences to take care of themselves. What right has she, then, even to the reputation of virtue, since she sold the character to buy it ? And the defendant fell by the same weakness into the same wickedness. Under the word " assist- ance" lies the dark admission that it is not the crime, but the shame that follows discovery, that makes crime really hateful. But suppose that the letter of sympathy and the failure to offer assistance drove the defendant to desperation. There can be found in the whole evidence nothing else. Tell me, then, what there is in these to give rise to such passion, or insanity, as is claimed to have existed in the defendant, when he had submitted quietly for weeks under the full knowledge of the ruin of his wretched child ? And what, indeed, is there in all combined — both what he had learned at Terre Haute and at home — but a great, sufficient and just cause for anger, resentment and revenge toward the deceased ? Surely nothing could be added to the story of his daughter's seduction, which he had borne without the least manifestation of excitement or insanity, for two weeks, capable of driving so immutable a man at once to madness. But the doctors tell us that his eyes glared, shined and flamed, and that he rushed out of his house, tearing 374 MODERN JURY TRIALS. himself loose from his daughter, who fell senseless upon the floor; and that, therefore, it is their opinion and judgment that he was mad. The cause of his madness, however, has been already ascer- tained and analyzed, and it has been shown that no argument can be deduced from it at all to show that his madness ever existed. It had no effect upon him for two weeks; for it will not be contended that if the fall of his daughter wrought no change upon him in the course of two weeks, that the discovery, at the end of that time, that the seducer had failed to offer her any "assistance," could have carried the defendant at a single bound into the dominion of insanity. Such a supposition is not reasonable, and I do not believe it is true. But that his eyes glowed and flamed, and he rushed vio- lently out of the house, " determined to kill Madison Evans," con- stitute the entire sum of the symptoms of insanity that he mani- fested when he left home. The state of his eyes and his abrupt departure from the house are all that we know upon which to build the theory of his insanity at that time, except the alleged cause; and that has been shown to be wholly inadequate, and, in fact, ridiculous. His whole conduct during the two weeks that the pre- tended cause had been operating upon him contradicts the pretense that it was any cause at all. And now, without any sufficient cause, a single feature and a single act, each and both, equally expressive of anger as of insanity, must now be accepted as all-suf- ficient evidence that he was insane. Even that act and that feature are described to us by the fallen girl, the one witness in all the world likely to heighten every indication in her father that would shield him from the consequences of the horrible homicide he had committed in revenge of her real or imagined wrongs. Yet even her account of him is of no significance as proof of insanity. The condition and expression of the eye, since there was quite as much ground for anger as insanity, and it as fitly expressed the former as the latter, is without any significance whatever. It is, I know, an important feature in the diagnosis of insanity — often an index to the condition of the mind; but does the fact that "it glowed like fire " authorize us to conclude that he was therefore mad ? The doctors do, indeed, say that he was mad when he left the house; and yet they have no other symptom than the gleam of the eye on which to build their conclusion. The poets and philosophers — the real leaders of thought and of men — stand opposed to the doctors here. From Homer, the father of Greek poetry and literature, all the great poets who have followed him, down to the last who has sung a strain worthy of his divine art, are opposed to our doctors. The blind old man of the Iliad describes one of his heroes as he NEWLAND-EVANS HOMICIDE. 375 is forced to retire before his victorious foes, and does not fail to note that, "His eyeballs glowed with living fire." And Collins, too, the poet of the passions, whose immortal ode has a place in the literature of all languages, not merely for the beauty of its poetry, but for the truth of its description, thus introduces anger: 11 Next auger rushed, his eyes on fire," giving us, in this single line a full description, in both respects, of the defendant at the moment he left his house; for "Newland rushed, his eyes on fire." And this is all there is in testimony tending to prove him insane. A description of anger, which sci- ence has long accepted, is thus found to apply literally to the con- dition of the defendant. And yet gi - ave doctors rely upon these manifestations of anger as not merely evidence, but sufficient proof of his insanity ! I am here so fortunate as not to be under the necessity of wholly relying upon the poets to confound the doctors. Their own author- ities — sworn to be such here in court by themselves — fully support the poets, and overthrow them. They have told you that Wharton & Stette's Medical Jurisprudence is a high authority for both then- prof ession and ours; and I now quote it as fully supporting my argument and putting down their opinion. [Here Mr. Gordon read a long quotation from the book referred to, beginning at page 103.J Here, then, to-day we have the pupils against their masters — the doctors against their professors. On which shall we rely? Had the doctors not sworn to the book we might have failed to deter- mine; but their testimony takes away all difficulty, and gives the book a fair preponderance against them. We are now at liberty to conclude that these gentlemen played truant when they were students; that they wore idle boys, ami neglected their lessons. But if the poets and professors be allowed only to balance the doc- tors, it is enough for our purpose. In that case, all difficulty is removed from our labor in respect to the question under considera- tion; for nothing is proved where the evidence on the two sides is equal. Hence the old distich is found to express the truth of the case in hand: *' When doctors disagree, Disciples then are free." 376 MODERN JURY TRIALS. Having no guide they are bound to respect or follow, how can it be otherwise? There is, then, no proof that the defendant was insane at his house or at the time of leaving it on the night of the homicide. He was merely angry; his anger had ripened into revenge, had led to the determination of killing the deceased. While upon this point, it may not be amiss to observe that there is a great dissimilarity in the account given by the defendant him- self to Dr. Randan, of what took place between him and his daugh- ter before he left home, and that given by the daughter in her testimony here, before you. The defendant said nothing about pushing his daughter from him, and rushing from the house. Yet he told Dr. Raridan that he was telling him all about the transac- tion. If he did tell him all about it, the daughter's story cannot be true. What are we to believe ? I leave it with you to deter- mine. We next behold the defendant in front of Carlton's drug store. For what purpose had he gone there ? His own declarations and all the circumstances prove that he went there to see his friend, Judge Carlton, for the purpose of pouring his griefs into his ear, and receiving his friendly consolations and advice. He remained there some time before Judge Carlton came to his office; and while there we are permitted to observe the tenor of his bearing, con- duct and conversation, through the eyes and ears of those who saw and heard him ; and from all that was there seen and heard, all the doctors concur in saying, that there was nothing in it all tending to prove him insane. His whole conduct while awaiting the arri- val of his friend, Judge Carlton, was perfectly consistent with sanity. The little restlessness he manifested, though observed by Rawlings, with whom he was talking, did not strike him even as unusual, or seem to be the result of any unusual excitement, and was not thought of until after the announcement of the homicide. I submit, therefore, that it should not be taken now as any evidence of insanity at that time. If the doctors had concluded otherwise than they did, from what happened there, that he was insane, you could not have believed them ; for all that he said related to his agricultural plans for the summer — the different crops he intended to cultivate in different fields; and nothing could have been more sensible and reasonable. On these subjects he and the witness had conversed before ; and this coversation took up the former one, and carried it into details. If from such a conversation you should infer insanity, how long may it be before every one of us may find himself in a lunatic asylum for treatment? If to speak reasonably of one's own affairs be proof of insanity, then let the inmates of NEWLAND-EVANS HOMICIDE. 377 our asylums change places with those who are wisely engaged in the pursuits of common life ; for the clearest evidence of sanity in such case, must be held conslusive proof of insanity. But before we allow ourselves to be so misled, let us glance at the testimony. Rawlins says that when he first came up to the defendant, stand- ing on the pavement in front of Judge Carlton's office, he addressed him thus : Question — "Ben, are you going -up the street?" Answer — "No ; I am waiting to see Carlton." Then followed a long, connected and sensible conversation about farming, which in no part or degree evinced any mental quality or state so much as good sense and sound reason. It is too long to repeat here ; but you will not forget it. It shuts the door in the face of the assump- tion that he was either insane or excited. But this testimony is strongly reinforced by that of another witness, who saw him lean- ing against Judge Carlton's office. That is not an attitude in which excitement or insanity ever displays itself. On the contrary, it indicates calmness and repose. The witness who saw him in this position, spoke to him thus : Question — "Doctor, is there a little lawsuit going on in there ?" Answer — " I do not know.'' And, having made this answer, he walked away toward the street. What is there in all this that does not tend to contradict the hypothesis of insanity — nay, more, that does not overthrow it ? As Judge Carlton came to his office, the defendant went to the door, knocked and called him out ; and they went together at once directly to the defendant's own office. Nothing happened on the way to show that defendant was not perfectly master of himself. There was no sign of excitement in his face or speech. As soon as they entered his office defendant struck a light, and they seated themselves close to, and facing each other. They were there for consultation, and their position was well chosen for that purpose. It was the natural choice of sane men. They were friends. They knew and trusted each other ; and what was then about to take place between them, and did in fact occur, must greatly enlighten us in regard to the mental condition of the defendant — the great purpose for which it was admitted as part of the evidence in the case. Let us, then, scrutinize their conduct and conversation with the utmost force of our minds, that we may justly estimate the weight of the evidence, or proof which it contains touching the defendant's mental condition at that time. 378 MODERN JURY TRIALS. In the first place, it is manifest from all that occurred that the object of the defendant in taking Judge Carlton away from his office to his own, was that he might in private open his heart to a man whom he both knew and trusted ; and who sustained the same relations to life and society — wife, children and friends — that he did himself. His purpose went further. He desired to take the advice of that man upon the line of conduct proper for him to pursue under the melancholy circumstances that sur- rounded him. And, no doubt, he needed and desired his sym- pathy. Behold them, seated as I have said, face to face, and close together, and listen to the conversation that follows. They were old and tried friends ; and had been for many years. But that friendship was not a sufficient guarantee to satisfy the defendant that he could safely confide to it the awful burden of his heart. It must be tested anew. He must re-examine it ; for he was about to make it the foundation on which he proposed to himself to build the weightiest structure that friendship ever reposed upon friendship. The process of re-examination began with a severe, searching, probing look, that went deep down into his friend's heart, as if to feel of and learn the stuff that it was made of. But that did not satisfy him. It was not enough. He sent a question after that questioning look. Listen, listen, gentlemen, that you learn the drift and connection of his thoughts : " Carl- ton, are you my friend ?" He seeks that bed-rock on which he may build the structure of his purposes. His foundation must be the unshattered granite of true friendship. He will trust nothing else. It must be proved, too, before he will venture to lay a single stone upon it. His friend answered him : " Ben, you know I am, and have always been your friend." " That will do," thought the defendant, " I may plant the first stone of my heart's purposed temple upon that foundation. And down it goes. " Are you a father ?" That points upward to the dome. Back comes the answer from the sustaining foundation, " I am." It is brief ; but it tells the defendant he may lay another stone upon that foundation, for it is solid still. So, down it goes. " Have you a daughter ?" The structure rises. The builder's purpose may he almost seen from what he has already done. But listen to the answer upon which his faith will still build. "I have — my little daughter Cora ; you know her very well. She is three years old." All is right still. The temple rises — is almost com- plete. In the eye of reason it is so far perfect — without flaw, and safe beyond fear. So down goes another stone ; and, if the founda- tion shall sustain that, he may stake life, and honor, and all upon it. NEWLAND-EVANS HOMICIDE. 379 So, here it goes : " What would you do if a man should seduce your little daughter, Cora, and ruin her forever?" -In this way had the defendant said in his heart : " I will compare the calm, unruffled judgment of my bosom friend with my own, by present- ing to him an hypothesis, very distinctly and sharply framed, and exactly similar to the reality of my own sad case, on which my judgment and determination have already been formed. If his judgment accords with my own, it will strengthen my purpose, and make my path plain and my work easy." But here, for the first time, the response does not support the purpose of his mind. The faithful friend had been adroitly led to confront the gravest of all possible questions ; and he stops short, saying : " That is a hard question. But what is the meaning of all this ?" This led the defendant to open to his friend his own sad case ; and he said : " My daughter Helen has been seduced, and ruined for- ever. I have it from her own lips. Madison Evans seduced her. I am ruined ; Helen is ruined ; my whole family is ruined. She and I had better be dead. I don't see how that infernal Evans and I, can live in the same world." Then said Judge Carlton: "Doctor, for God's sake use no violence." And the defendant replied : " I don't see how I can help killing him, if we should meet." Again his friend told him he had better be calm, go home, and go to sleep. But, again, the defendant answered : " How can I sleep when my brain is on fire ?" He did, however, finally become quiet ; and promised to keep so ; and his friend, agreeing to return to him in a short time, left him quiet. But Judge Carlton was not entirely satisfied that he was safe, and sent his brother James to defendant's office to take him home, after first telling him all about his misfortunes. When James got to the office, however, it was dark, and as the door-knob was broken off, he could not get in. The defendant was still there, for he was heard walking to and fro in the back room. And so Mr. Carlton went away and left him there. But he had heard enough to lead him to fear that the life of Evans was in danger ; and he hastened to his office to warn him of that danger. But his office, too, was dark ; and he went back to his own drug store and thought no more about it, until the defendant came there after the homicide had been com- mitted. Here, then, is the last scene in the tragedy in which it is pretended that the defendant showed any sign of madness; and this, so far as the mind is concerned, is the whole of it. What the defendant told Mr. Dunham forms no part of it. That came from him after the play was ended, and the curtain down. It is more properly, 380 MODERN JURY TRIALS. therefore, a part of a new drama, one act of which we are now playing, than of the old, which ended in blood on the fifth of March. It is quite as, fitly set in the second, as the conversation between Judge Carlton and the defendant is in the first. To this it has no relation. I say, then, what was there in all that was said and done in the defendant's office before the homicide that in the least degree tends to show that he was insane ? Or, more appro- priately, what is there in it all that does not prove that he was then a sane man, but angry, revengeful, and fatally bent on mischief and murder. Let me repeat the conversation between him and Judge Carlton, that you may see how solidly it adjusts itself to the circumstances by which he was surrounded; and to his determina- tion, formed before leaving home, to kill Madison Evans. Examine for yourselves, and see how naturally it meets all the requirements of the best informed and most perfect human reason. If a single word were absent, it would be less perfect than it is; and whether we could tell what was wanting to make it complete, or not, I am certain we should feel that there was in it " some hidden want." At the same time, we feel that, to add anything to it, would be to inflict a blemish. When you have gone through it, without note or comment, therefore, ask yourselves whether it is possible that a piece of work so perfect is the creation of a madman ? But hear it: Defendant — " Carlton, are you my friend ?" Judge G — "Ben, you know I am, and have always been your friend." Defendant — "Are you a father ?" Judge — " I am." Defendant — "Have you a daughter?" Judge C — "I have — my little daughter Cora, three years old. You know her very well." Defend/tut — "What would you do if a man should seduce your little daughter and ruin her forever ?" Judge C — " That's a hard question ; but what does all this mean ?" Defendant — "My daughter Helen has been seduced, and ruined forever. I have it from her own lips. Madison Evans seduced her when she was a little girl. I am ruined, Helen is ruined; my whole family is ruined. She and I had better be dead. I don't see how that infernal Evans and I can live in the same world." Judge C — " Doctor, for God's sake, use no violence." Dcf'ndant — "I don't see how I can help killing him, if we should meet." NEWLAND-EVANS HOMICIDE. 381 Jiidge C — "You had better go home and go to sleep." Defendant — "How can I sleep when my brain is on fire ?" If human reason can frame a more perfect work than that, I should like to see it. Every question is to the point, and each fol- lows the other as rationally as if it grew out. of it. Every answer is fitly adjusted to its question. Both questions and answers are tersely put, and worthy of a place in the permanent literature of the language. And yet we are to believe that it is all .consistent with homicidal mania. Nay, men of science, whose lives have been devoted to the great questions of health and disease, insist that it is true. Is this, indeed, the message which science brings from her pale-faced votaries who have spent their lives amid the sickly fumes and gases of the laboratory over the glowing crucible; or in the dissecting room, scalpel and microscope in hand, searching for light where there seems to be no light, but "rather darkness visi- ble;' and for life and the laws of life, where naught is found but death?" " O, star-eyed science, hast thou wandered there, To bring us back these tidings of despair?" At the office we lose sight of the defendant until he reveals him- self at the door of the deceased. There he stands as cool and calm as any man "that ever cut a throat or broke a skull." Not Wil- liams himself — the man of bronze — who in 1812 sent a pang of horror throughout the British Empire by his monstrous murders, could have hushed the tumult within him, or tamed his visage down to more perfect calmness and serenity than did the defendant, whom all conceded to have been, clown to that moment, a man of good reputation for "peace and humanity." Standing there, at the door of that house which he was so soon to make desolate, in the presence of that wife whom he was prepared even then and there to make a widow, and within the hearing of those helpless children whom he had determined on that very spot and at that moment, to have reduced to the most miserable orphanage — (for can any one doubt that it was his intention to have slain Evans on his own door-sill, had he, instead of his wife met him there) — he was as calm and placid as if his visit had been one of peace and love. There he stood before that wife, so soon to be a widow — the mother of those children, so soon to be orphans — and yet she saw no signs of danger in his demeanor. Her woman's eye so pro- verbially sharper to notice such things than man's, beheld no trace of the fiend within him, to warn her of her coming woe. Talk not to me about strength of will after that. I admit that the law is, 382 MODERN JURY TRIALS. as read to you by Mr. Davis, from the decision of the Court of Appeals of Kentucky. I, too, say there must be capacity to dis- tinguish the moral question of actions, to know right from wrong; and freedom of will to do that which is right, aud avoid that which is wrong, or there is no moral, or legal responsibility. But had not the defendant made his choice when he stood at that door? Had he not determined what he would do ? Had he not, even then, at the door of that house which he was about to make desolate forever, the most perfect mastery of his conduct ? Had it been otherwise, could his purpose there have remained undiscovered? Why, had he been adamant, the presence of that mother was enough to have softened him into flesh, and made him relent and forego his hellish purpose. But he passed through it all unmoved and unchanged; and left his victim's wife as unconscious of her coming desolation as the infant she bore in her arms. He who could pass that ordeal need fear no second trial. Who but God can estimate the pressure which, in that awful moment, his will must have exerted upon his nerves, his emotions, his whole being— body and soul. Will you tell me that the will of that man had lost its power to control his thoughts, his emotions, his actions ? What feature, what power — mental, moral or physical, of his whole being — did not then obey his will ? He had literally harnessed the terrible passion of anger, malice and revenge to his fell pur- pose, and made them the pliant and obedient ministers of his determination to kill Madison Evans. And so he left the woman whom he had devoted to widowhood and woe, and went to seek her husband, for, as he said, "he had business with him." He walked away to the scene in which he was to play so terrible a part, with as much composure as if his thoughts had been thoughts of love, and all his purposes errands of mercy. It was a dark night. "The dark places of the earth are full of the habita- tions of cruelty." But he went straight to his deed. He was heard to pass the house of Mr. Ward. It was the half-way place between the house of his victim, and the scene of the homicide. In two minutes more his pistol announced to "the drowsy ear of night" that the butchery had begun. Its flash was seen by one of the wit- nesses in the direction of the fatal spot. It required but a moment more to complete the deed, which had been determined upon three- quarters of an hour before. And now it is accomplished. Piteous God ! how horribly accomplished ! Think, gentlemen, of the meeting, the recognition, the announcement of the slayer's purpose, the shot, the fall, the prayer for life, the grim denial; and, then think of the stabbing, the cutting off the defenseless hands; and, NEWLAND-EVANS HOMICIDE. 383 finally, of the last fatal gash in the neck, severing arteries, nerves and windpipe, and putting an end to life and all its blessedness ! But the picture would be incomplete without an allusion to the last breathings of the dying man. Mr. Davis thinks that they were not heard — that they did not occur. I am entirely certain that they did occur, and that they were heard. The witness could not have used the language she did, if she had not heard them. Many of our soldiers have heard the same sound, and it will live in the mem- ory of all who have until their dying day. I pray God it may not mingle in my final dreams, nor haunt me when I come to die, with the greatest horror of our last bad years. The world has no other sound like it. It is not susceptible of a complete description in words. As the old lady told you, it is, indeed, "a gurgle;" but it is something more. It is a fierce, almost whistling, gurgle, as the air and blood are sucked into the lungs together, and then blown out through the severed tube, in the last fierce struggle for life when life has lost its means. Think, gentlemen, I beseech you; think of all these horrors, and then you will be able to think of jus- tice. Let the man who went forth to do this deed, " to win no cheap reputation for bravery," in the words of Judge Carlton; "but for a purpose — to kill Madison Evans, because he had seduced his daughter;" learn that such deeds can not receive your sanction; that such bravery and such butchery must cease from the land; that it is not in this way that the true hero wins his laurels; but that shame, everlasting shame, and dishonor must be its reward. "No cheap reputation for bravery," to be sure! Far, far away, be the evil v^ay when such a standard of courage shall be raised up for our boys to follow. It is not the true knight's standard. He scorns all advantage of sun, or wind, or rain, or weapon; and con- quers, or is conquered, upon an equal field. But in all this revolt- ing and horrible transaction there is not a single trait, or trace, of true, manly courage, such as burns in the breasts of "the good and the brave." Everything about it is one-sided. There is no fair play — no sign of fair play — in it all. And all fair-minded, just men must, in my opinion, so regard and condemn it. Let us recur to the transaction, that we may trace the moral evi- dences of self-possession, of reason, and of the motives which deter- mined the judgment and gave direction to the will, they afford. They are not difficult to follow. The slayer, predestined by his own determination, has sought and found the victim of his revenge; for what else shall we call it ? They met in the dark night — no star looking out from heaven to witness the scene of outrage and cruelty that was there to pass, in 384 MODERN JURY TRIALS. that valley of death, making it forever memorable as a place of horrors, until the school boy of after times, who shall learn the story, will feel his hair rise, and a strange ohill steal over him as he walks silently by in the darkling twilight, to his home. O, thievish night, Why hast thou, but for some felonious end, In thy dark lantern thus closed up the stars, That nature hung in heaven, and filled their lamps With everlasting oil, to give due light To the misled and lonely traveler 1 In the midst of the darkness the slayer goes straight to his vic- tim. Answer me, now, these questions. Whom had he motive to kill? Whom had he " determined to kill " before leaving home? Whom had he prepared himself with arms to kill before leaving his office ? Whom has he found in the darkness to kill ? Whom does he now kill? One name answers all these questions, accord- ing to the evidence; and there is not another word in the universe that will answer any one of them. Is all this chance ? If it is the result of insanity it is nothing else. Has chance made the name of "Madison Evans" the true answer to all these questions, and made every other name unfit to answer any one of them? The whole difficulty of the case passes away before these facts. Why did he kill Madison Evans ? Because he seduced his daughter. Listen to his own sententious, almost epigrammatic account of the transac- tion. He told Dr. Raridan that the following dialogue occurred between Evans and himself: t. Defendant — " Who comes there ? " JEvans — " Evans." Defendant — " Do you know my daughter Helen ? Tou have seduced her, and I intend to kill you." "I then shot Evans, and he did not afterwards rise. He begged me not to kill him; but I told him I intended to kill him." In all this where do you find any symptoms of insanity ? Again, where in it all is there a single fact wanting to make it complete as the work of a sane man ? The doctors agree that in what occurred at the house of Evans, and the place where he was killed, there was no indication of insanity. I think I have now shown you that, down to the accomplishment of the homicide, there is no reason whatever to infer that he was insane at any time before its commission. If that be so, then we can not but come to the conclusion that he was a responsible agent when he killed Evans; and is, therefore, guilty of the offense for which he is on trial before you. NEWLAND-EVANS HOMICIDE. 385 Before we leave the valley of death, let us ask ourselves a few questions. Suppose the defendant had been arrested there, what would you say. of his act ? Upon all the facts which I have dis- cussed, and I have considered all that then existed, could you have come to any other conclusion than that he had been a sane man at every stage of the proceeding, from leaving his home until the bloody consummation of the purpose with which he set forth ? Tell me what single symptom of insanity there is in all the facts, and groups of facts, which have led us, step by step, from the cause to the consummation of the homicide ? And tell me, again, what mark of insanity is wanting in them all? Now, that the worst has come to the worst, he desires to see him again; and again to throw himself upon his sustaining breast, that he may regain if possible bis own strength of soul — now so sadly lost — by feeling the kindly heart of the man he loved and trusted most, beat back against his own. To Carlton's office, therefore, he resolved to go, and did go. It was full of men — his neighbors and friends; but he does not trust them with the story of the night. He knocks, and asks for Carlton at the door. He was not in ; and he sends for him to come and see him, and with the message, information of the place at which he may be found ; and where, in a few moments afterwards, he was found by Mr. Rout and Judge Carlton. I do not propose to dwell upon the scene at the jail. It is alike consistent with high passion, or good acting ; and, as there was occasion for both, it is unimportant to spend time in discussing what must necessarily be an immaterial question. Let us remember, however, that from the moment that the homi- cide was committed, the defendant had the strongest motives in the world to adopt any means that might enable him to escape the legal consequences of the deed he had done. There were but three doors through- which escape was possible for him. He might commit suicide. He might fly the country. He might surrender, stand his trial, plead insanity as he has done, and take his chances for a favorable or an unfavorable verdict, at the hands of a jury. These categories are exhaustive. I think his antecedents prove that suicide was out of the question with him — that his love of life, and of "wife, children and friends," made that impossible for him. You will remember how he shrunk from the apparent coming spectre of the grave, when he thought some years ago that he was consumption's victim. Why, his fears of death were then so great that he now brings them for- ward as evidence of a predisposition to insanity. Had he then greater reason to turn away from the valley of the shadow than 85 , 386 MODERN JURY TRIALS. now? To assume that, is to build without a foundation. There is no evidence to support the assumption. He turned away from suicide, feeling if not saying — "Thus conscience does make cowards of us all." It was quite as difficult for him to fly this country. That would involve and lose him all the interests for which he killed his fellow. Family, home, and even the "point of honor" upon which he had placed it in his own heart, were all lost in flight. Flight, too, would establish his guilt ; and from the first his chances of escape would be zero. If captured, the chances of a favorable verdict upon any ground whatever would be lost. Thus, " in the lowest deep, a lower still" would open to receive him. He may have reasoned thus : " I have killed upon a motive that must appeal strongly to the sympathy of my neighbors. Can I not point to my family's wreck and ruin, and ask them, with something more than a show of reason: Was I to endure all this at the hands of him who had wrecked and ruined all ? May I not be able to get the facts before a jury, and even ask them to acquit me in the very teeth of the law ? May I not say," — through Mr. Davis he has said — "what do you care, gentlemen of the jury, about the law ? And if I can only get the jury to forget their oath, may they not let me go free?" And, gentlemen, there was always a chance among the chances, that a jury might do it. Mary Harris had been acquitted, who had killed her seducer. Might he not feis*n and fare as well? He knew a thousand times more of the medico-legal doctrines of insanity than she. He was a learned physician and surgeon, who knew all the saws and soundings of the schools — all the symptoms and simulations of insanity — its illusions, delusions and hallucinations. If ever man had cause to feitm insanity, certainly he had. If ever man was prepared to feign, certainly he was. 1 Whether moved by these motives or not — whether sane or insane, he had no chance to escape by flight. That must have been out of the question, even from the moment his necessity seemed to require it. Had he possessed the wisdom of an angel, he must have failed, without his wings. He was, therefore, as a reasoning and reason- able creature, capable of comprehending his situation, morally compelled to front the great emergency which his conduct had invoked. That he would front it, was determined before he reached Judge Carlton's office after the commission of the homi- cide. He had gone further, and selected the ground on which he proposed to stand. He had said, in his heart, " I will place it all NEWLAND-EVAN8 HOMICIDE. 387 npoD a point of honor." But that ground had to be reconsidered, and has been abandoned by the defense here. They have gone far off from it, and insist now that it shall stand upon a melancholy condition of being, in which " Laughter is not mirth, nor thought the mind." A condition of mind to which honor and shame, infamy and fame are equal ; for the maniac regards alike, the hiss of serpent-tongued slander, and the blast of the trumpet of fame. In considering the new position of the defendant — the plea of insanity — it must, I think, be consistent with all the facts admitted or proven in the cause before it can avail him. It must be inconsis- tent with all the essential facts of the contrary hypothesis. In other words, we have opposed to each other two conflicting and hostile theories. According to one, the defendant was sane at the time he committed the homicide. According to the other, he was insane. Now, my proposition is that if either of these hypotheses explains and harmonizes all the facts proven in the case, and the other does not, then you must adopt the former, and reject the latter. We have traced the defendant down to the time of his arrival at Carlton's law office with his hands red, if not dripping with human blood — that blood whose equivalent at the hands of the shedder thereof, God, in the far morning of the world, exacted in these solemn words: "Whoso sheddeth man's blood, by man shall his blood be shed," words which have lived ever since in the hearts of all peoples, potent for their purification and preservation. He knew these words. He knew, also, what hands were his. All the waters of the ocean could not wash them clean again. * * * * But mark what follows. Mr. Dunham tells him — "I fear, Doc- tor, you have made a mistake and killed the wrong man. From what I hear I fear you have killed Col. Williams." "My God !" exclaimed the defendant, "if I have killed Col. Williams I am ruined indeed ; for he was one of my best friends. O, let me die. Let me to the medicines." Is this evidence of insanity ? On the contrary, does it not clearly establish his sanity, by showing that he was all alive to the relations and obligations of friendship ; and felt most keenly at the thought of having killed a friend for an enemy ? But there is something incomprehensible in what Mr. Dunham says to him in relation to the wrong man. What has madness to do with a " right " and a " wrong" man, when it drives the madman forth by an irresistible impulse to slay indiscrimin- ately whom it may slay ; and when all experience and science go 388 MODERN JURY TRIALS. to show that the blow will be likely to fall a hundred times upon an indifferent person to the slayer, or upon some of his nearest and dearest relatives and friends before it will descend once where there exists an adequate motive to kill ? Mr. Dunham could not and would not have committed so great a folly as to address such a remark to an insane, " raving maniac ;" and, if the defendant had been insane, the announcement of Mr. Dunham that he feared " the wrong man " had been done to death, would have called out from the defendant no answer showing that his mind agreed with that of his friend that there was " a right man" to kill and that there was also " a wrong man " — and that Col. Williams was the latter, and that Madison Evans was the former. Indeed the whole case shows that Madison Evans was, in fact, in the estimation of the defendant and his friends, the only "right man" in the whole world. Do madness and chance thus select their victims where the sane man's motive would also lie ? " He said that he was ruined, his daughter was ruined, and that his whole family were daughters, and they were all ruined." The connection of his thoughts with his relations and the consequence of Helen's fall, is pregnant with evidence of sanity. The experi. ence of the whole world will sustain the conclusion which he draws from the premises. Such a misfortune falls like a blight upon the sisters who share the name and blood of the fallen. " One sad losel soils a name for aye." Dr. Athon has said, I know, that he remembers the case of Hamlet's ghost, and that this, though differing in object is like that in kind. He said, further, that a person could, with such an illusion before him, carry on a conversation with a person who knew nothing of his disease, and so demean himself as to excite no suspicion of the presence of anything wrong. I questioned the correctness of the Doctor's opinion then, and I still think he was greatly mistaken. I am sure that Shakespeare will bear me out in my dissent from the learned Doctor. I will venture to recite the entire passage, from the entrance of the ghost until it disappears, and leave you to settle which is the more reasonable opinion — that of the witness or that of the poet. Before I present the passage it is proper to say this illusion of the ghost had been seen by Hamlet once before, and was not, therefore, so likely to startle and terrify, as at first. The defendant, on the other hand, saw the flaming image of his daughter, for the first time, when going NEWLAND-EVA1SS HOMICIDE. 389 from his office to the house of the deceased, and during the con- versation with Mrs. Evans. But here is the passage from Hamlet : Ham. A king of shreds and patches, Lenter ghost.] Save me, and hover over me with your wings, You heavenly guards I What would your gracious figure f Queen. Alas, he's mad I Ham. Do you not come your tardy son to chide, That, lapsed in time and passion, lets go by The important acting of your dread command ? O, say J Ghost. Do not forget : this visitation Is but to whet thy almost blunted purpose. But, look, amazement on thy mother sits : O, step between her and her fighting soul : Conceit in weakest bodies strongest works : Speak to her, Hamlet. Ham. How is it with you, lady ? Queen. Alas, how is it with you, That you do bend your eye on vacancy And with the incorporal air do hold discourse ? Forth at your eyes your spirits wildly peep; And as the sleeping soldiers in the alarm, Your bedded hair, like life in excrements, Starts up, and stands on end. O, gentle son, Upon the heat and flame of thy distemper Sprinkle cool patience. Whereon do you look ? Ham, On him. on him ! look you, how pale he glares His form and cause conjoined, preaching to stones, Would make them capable. Do not look upon me ; Lest with this piteous action you convert My stern effects : then what I have to do Will want true colour : tears perchance for blood. Queen. To whom do you speak this ? Ham. Do you see nothing there ? Queen. Nothing at all ; yet all that is I see. Ham. Nor did you nothing hear ? Queen. No, nothing but ourselves. Ham. Why, look you there ! look, how it steals away I My father, in his habit as he lived 1 Look, where he goes even now, out at the portal 1 [exit ghost.1 Queen. This is the vevy coinage of your brain, This bodiless creation ecstacy Is very cunning in. Either the Doctor or Shakespeare is at fault. The whole world of thinkers have accepted Shakespeare as a standard on all such subjects. Shall the Doctor now dethrone him and become the first among the sons of light — the High Priest of the great temple of creation ? Of this degree of homicide, therefore, all the circumstances of the case, it seems to me, conclusively prove him guilty. Upon this point it is your right and duty to consider carefully, all the facts and circumstances of the cause in their relation to the law as the court shall give it to you, and if you disagree with me in regard 390 MODERN JTJRY TRIALS. to the guilt of the defendant, I shall not arraign you at the har of public or private opinion. On the contrary, I shall bow to your verdict with respectful submission. If, however, your conclusions shall consonant to my own, I shall accept it as a true and just verdict, while I shall regret the consequences that must follow. Before concluding this argument, I deem it highly proper that I should recur to one subject, which I would gladly have omitted. I allude to the character of the young lady whose misfortune, or fault, enters so largely into the terrible tragedy which we have been called upon to review. Four years ago on the 10th day of March, she was a young lady of fourteen years and eight months of age. Many of our girls in the west at that time of life are wives and mothers, conducting with prudent oversight the affairs of their household. At that time Miss Newland made the acquaint- ance of the deceased, and became a pupil in his school. He was a minister of the gospel, a teacher in the Sabbath School, and, so far as appears in the evidence, a man of faultless propriety in the observance of all the outside forms of the Christian religion. She was already or soon became a member of the church. She was a bright, intelligent and educated girl. She must therefore have learned from the public ministrations of the deceased that all vice is sinful and involves the soul in ruin. She could not have attended Sunday School without learning from the sacred book that fornica- tion and adultery are condemned of God. If, therefore, he pro- posed any line of conduct for her and himself at war with this knowledge, she knew that he was a married man, and was furnished by his public character and teaching, no less than by her mother's precepts and example, with an answer with which childhood itself could and would have silenced the base insinuation or suggestion at once. Nay, the example of the whole world around her was an argu- ment against vice and in favor of virtue. For even the few sporadic cases of vice, which public opinion everywhere so cruelly lashes with infamy and disgrace, tended to support her and keep her pure, if she was pure already. Thus the church, the Sabbath School, the home circle, the mother's example, and that of the whole com- munity, as well as all the holy instincts of childhood, would have repelled, one would think, every base proposal, coming from what- ever quarter, unless, indeed, there was some innate inclination on her part to go forth to meet its baseness. If she was smart she must have known the difference between vice and virtue. If she were pure she must have loathed vice and worshipped virtue ; and when did virtue ever abandon her votary to the loathsome embraces of the lewd seducer ? It is not in the experience of mankind, and NEWLAND-EVANS HOMICIDE. 391 all that holy saints, inspired bard or sage divine have ever written, repel the thought. They present virtue to our view upheld by all the powers of the heavenly hosts. She is the strongest, fairest daughter of God, and ever dwells with all the pure in heart among the children of men. ' So dear to heaven is saintly chastity, That when a soul is found sincerely so, A thousand liveried angels lacquey her, ' '' Driving far off each thing of sin and guilt. " And the great Shakespeare tells us it is impossible for virtue to fall, no matter who may tempt it. " But virtue as it can never be moved, Though vice should court it in a shape of heaven. So lust, though to a radiant angel linked, Will sate itself in a, celestial bed, And prey on garbage." I had hoped and intended that there should be no occasion to assail the character or veracity of Miss Helen Newland. It was to avoid that that the prosecution admitted that she gave her father a recital of her wrongs and of the relation which the deceased sustained to them, and that her father believed her statement to be true. This placed the truth or falsehood of the statement out of the question,! and while, according to the decision of the court, it deprived us of. the right to impeach her veracity, I now think the principle of the decision should have deterred the defense from insisting upon the truthfulness of her narration. It has not, however had that effect. On the contrary, each particular circumstance of her real or imag- inary seduction has been insisted upon as if it were as true as holy writ. I do not complain of the decision. I only regret the course of the defense, for it compels me to scrutinize the internal evidences of the veracity of her testimony. According to her own testimony, she is now nearly nineteen years old, and was four years ago as nearly fifteen. She was a member of the church, the bright daughter of a good mother. She was even then of mar- riageable age. She held a high place in social life. According to her statement, she must have fallen into vice soon after that time, and kept it up during all the time intervening between then and now. She clothed fornication and adultery in the habiliments of virtue, morality and religion, and lived in the hearts of her parents, the bosom of the church, and the social circles of the town as a pure, chaste and religious girl, when she had no right to any other character than that of a wicked and vicious woman. She deceived all who associated with her or were related to her. Father, 392 MODERN JURY TRIALS. mother, church and general society, all believed her heart the shrine of virtue, when, in fact, it was the stew of the most filthy passions that degrade and ruin mankind. What right has she now to claim the confidence of the courts and juries of the country ? Can deception go farther or be maintained longer than she has already carried it? If she would deceive her father, her mother and the church.'are you more dear to her than they, or less likely, if you give credence to her story, to be deceived. She never con- nected the name of Madison Evans with her fall until assured by her father that if she would give up the name of her seducer, he would not drive her from his home. The promise implied a threat that if she did not he would. She was as weak now in morals as before — far weaker in all the circumstances that tended to support her. Here, then, was motive quite sufficient to have appealed strongly to a better nature than she appears ever to have possessed. Who can tell the effect of such an appeal to such a girl. She was an intelligent girl without moral virtue to keep her from walking in the paths of falsehood and fraud. One name would serve her purpose as well as another. If she really loved the man who had seduced her, as nearly all who are seduced do, she had the most powerful motive that ever appeals to woman's heart, to give the name of another, and save the real author of her downfall from the terrible consequences of her father's vengeance. This wicked girl, then, is the only accuser of the slaughtered man. Upon her statement her father is prepared to do a deed that must forever shock the heart of the good and merciful. He hears the testimony of his fallen child — fallen long ago, and fallen, O, how deeply! — hears it in his own parlor, in the absence of the deceased, who is allowed no day in court to be heard in his defense. No witness is called for him, and no doctrine of reasonable doubt allowed to shield his name from as foul a charge as can be brought against a good man's honor. He is condemned by a self-constitu- ted tribunal, that had already bribed the only witness in the cause, by a promise of protection on the one hand, and an implied threat of abandonment on the other. Well can I imagine how the whole aspect of the case might have been changed, had the other side been heard. I can conceive the oft-repeated lewd advances on her part, the resistance of continual temptation on his, even his final triumph, and then her settled malice and revenge, for " Hell has no fury like a woman scorned," all culminating in her fall, and his death, cruelly inflicted upon her mere worthless word. It is just as probable that he had no connec- NEWLAND-EVANS HOMICIDE. 393 tion with her ruin as that he had; for her word can afford us no reasonable ground of probability in the case. Call up from his grave the poor, murdered victim of this strange trial, give him a seat by the side of the defendant, and let him direct the examina- tions of the witnesses so far as their testimony tends to his crim- ination, and who shall say that his reputation might not be vindi- cated ? The defendant, however, denied him this right, which the law gives to all offenders, from the petty thief up to the prowling midnight murderer. There is no other reason; for the statement of the bright, bad girl, who alone accuses him, is as mere fabrication as ever was framed to subserve a failing cause. There is scarce a man in this community whose fair fame may not be blighted and destroyed in the same way. First sanction his assassination, and then when he is gone make the necessities of his assassin the measure of his infamy, and the foul work is of easy accomplishment. It is for you to say whether this double work of destruction shall receive the sanction of your verdict. The cause, so far as I am concerned, is now in your hands. I submit it to you with the utmost confidence that you will render a conscientious and true verdict. If it shall be one of acquittal, I shall accept it as your best judgment upon the law and facts of the case. I shall stand by it and for it; because it will be the only ver- dict that the law authorizes, or allows. It will, therefore, stand to us all as and for the law. But in this lies the danger of a mistake. If your verdict to-day, or whenever it shall be rendered, may lead to others like it— may sanction brute violence and cruel murder, on the one hand, or uphold the law, and make life in all its relations secure and sweet, on the other, you cannot be too careful in your consideration of the material out of which you are to frame it. In my opinion, the evidence is such as to require a verdict of guilty, as charged in the indictment against the defendant. But I may be misled by my relation to the cause, and, therefore, have no quarrel with those who do not agree with me. I have endeavored faith- fully to perform my duty. I have done it according to the meas- ure of my ability; and now surrender it to you. Take it, and do what you think justice requires; and I doubt not that the law will be vindicated, private life and honor protected, and the foundations of social order and good government rendered secure alike against overthrow by violence, on the one hand, and the failure of those entrusted with their preservation on the other, to perform the duties imposed upon them by the constitution and laws of their country. Acquitted. 394 MODERN JURY TRIALS. THE WARD WILL CASE. Tried at Detroit, November, 1875. The contest over Captain E. B. Ward's will, and the vast sums involved in the litigation, as well as the eminence of counsel and high character of the parties and witnesses sworn, will be clearly- shown in the extracts of arguments here given. The contest lasted fifty-five days, and continued to increase in interest to the end. A brief sketch of the leading counsel will better give their style of address and manner of reaching a jury: Hon. J. Logan Ciupmah' has made the art of oratory a study for years. Of ripe age and excellent training, full of actual exped- ience, in a large city practice, he has learned the art of saying things to please, convince and persuade men. He deservedly holds a very high rank as a criminal lawyer and leading advocate, and although at present judge of the Superior Court of Detroit, he occasionally appears in important jury cases. He has been City Attorney, Member of the Legislature, and received the nomination for Congress. Judge Chipman is a strong man, medium-sized, now nearly fifty, of robust frame and friendly manner. In the conduct of cases he is sagacious and original, with a wonderful memory, powerful voice, magnetic face, clear, forcible and earnest in delivery. While others take notes, he draws pen-pictures of houses, birds, trees, ships, animals and men, in crude forms, but never loses his inter- est in the trial, frequently stopping a witness on a material matter, as if by accident. His speech is full of quaint surprises, good-natured jokes and quiet humor. He begins in a jovial way, comments on counsel, looks and talks to the empty chairs, draws a smile from the jury, turns like an athlete, and for an hour or more pours out a torrent of strong, logical and eloquent periods, that move and convince men. With an excellent memory of facts and no notes, he is fluent in delivery. He gets hoarse sometimes, but talks right on. His lan- guage reports well as delivered, without the slightest change. In his vehemence he composes correctly. Measured as an orator, advocate or logician, he is of the first rank. In a city like New York his fame would soon become national. "WARD "WILL CASE. 395 Hon. "Wert Dexter, of Chicago, who closed for the defense, is an advocate of great power and acknowledged ability. Large, strong, plain, about 50, full dark beard tinged with gray, something of a western appearance, but a refinement of manner and diction, with all the force and logic of a New England senator — not unlike Mr. Blaine. There is a charm in Mr. Dexter's manner and a singular music in his voice that is always attractive. He uses manuscript freely — reads often, but reads like a master in elocution. But once under way he fills with energy. At times he grew tender and pathetic, and toward the close of his address he read a beautiful extract, entitled " The Good Aunt," in a most touching and elo- quent manner. The following extract gives but an imperfect glimpse of his power with a jury. Mr. Dexter was ably assisted by Ashley Pond, on questions of law, and by E. W. Meddaugh, Esq., a celebrated railroad attorney, who made a lengthy and effective argument to the jury. The chief feature of this singular suit is the sharp and stinging contest of counsel, the powerful appeal of Judge Chipman to the jury and his cutting reply to Wert Dexter, in the little episode reported. It was a legal duel, and had in its history much of the elements that excite juries and spectators. The crowd packed the court room constantly; the interest was intense throughout. The two-days' speech of Judge Chipman was delivered without notes. The gist of the action was: "Whether Capt. Ward's belief in spiritualism and the influence of his young wife were enough to create over him an undue influence in making his last will?" A very effective point was made by Hon. Theodore Ptomeyn, one of Michigan's ablest counsel, when he attempted to show that Capt. Ward secured a divorce in two weeks from his invalid wife, mar- ried a second wife, and took her to his home while his invalid wife remained in ignorance of the divorce ! This circumstance was repeated many times in the hearing of the jury by Mr. Romeyn, and although excluded by the court, was kept before the jury, and did very much in shaping their verdict. The trial was ingenious in other respects; the skill of Ashley Pond was constantly employed with effect in all questions of law and evidence; the solid sentences of D. Darwin Hughes were con- vincing to the jury, and added dignity to the defense. Inch by inch, all the ground was contested, with bitterness and ability, and nothing was lacking to complete a grand tragedy in real life, hut strong hands of counsel, in restraining an insane son, Henry Ward, from shooting Mr. Dexter in open court. 396 MODERN JURY TRIALS. In the passage at arms between Messrs. Dexter and Chipman occur some strong words not often heard in court contests. Com- ing from large men, they were at times startling and dramatic. "I am here," said Mr. Chipman, "to try this case, to try it bravely, serenely, and I will try it boldly. I am here to call things, by their right names, and if Mrs. Ward has done wrong, I will say that she has done wrong, and say it though ten thousand devils interfere ! I want no vaporing; I make no threats; but as God is my judge, I will neither court a quarrel nor shrink a responsi- bility ! " As these words came out, with the fire of an enraged genius blazing from the eye, trembling with heated anger from the lip, piercing and stinging through the air with vehement elocution and intense delivery, they seemed to thrill every listener in the crowded court room. The Closing Argument. hon. j. logan chipman's address to the jury. Mr. Chipman in opening his address to the jury, began by com- menting upon Mr. Hughes's declaration that the trial was a farce, and said that he himself regarded it rather as a tragedy. If to dis- inherit and degrade one's children, to divorce one's wife, to crush out hearts until they snap, is a farce, this trial is; if they are calamities, it is a most serious matter. The jury have not been called to sit here nearly two months to play harlequins; they are to decide great principles, that justice may be done. I The issue to be tried here is, "Whose will is this!" Capt. Ward's, or some one's else ? Was Capt. Ward in a frame of mind to make a will ? and could he do so with perfect freedom ? The contestants assail it as unnatural — inofficious in the barbarous Latin jargon of the bar. It does not deal properly with the objects of the testator's bounty. It is a fallacy and baseless in law to say that a man may deal as he will with his property. If a will is unjust, oppressive and calamitous the law steps in and asks why it is so. CAPT. WARD. On the second day of last January a man dropped dead in the streets of Detroit. What manner of man he was, the testimony has in some slight measure disclosed. He had been a bustling, active, strong man of affairs; we hear of him iu all directions, hear WARD WILL CASE. 397 of him in Arizona, South America, Alabama, Louisiana, Ohio, Iowa, Canada and Michigan. On the day he died he seemed to be in as good health as he ever had been. What, then, was the matter with him ? Did he die because he was well '( Not so; he came to the spot where he fell, the victim of disease that had followed him for years; that had almost blasted the life out of him once before coming like a stroke of lightning. Yet witness after witness has had the temerity to testify that he was as sound on the day of his death as he ever had been before. Gentlemen, he was not strong either in body or mind, as he sank with all his millions, in the dust and dirt of the city, dead ! He left his millions behind him, just as will all these rich and powerful and enterprising men who have come up here to crush out two boys with their testimony. His death was no matter of chance; the processes had been going on for weeks and months and years. He had had an eventful history. When he has a boy he was at the island of Mackinac, coming a .little later to the river St. Clair. In his early life he was weak and sickly, as his sister tells you. He carries in his veins blood tainted with insanity — blood which makes your speculators and heroes of Black Friday, and which shows itself in acts which make others unhappy. He plunged into a business of a most exciting character, and as he comes toward the close of his life we find him under an excitement that was perfectly marvelous, and the only wonder is that he had not gone from us long before he did. Speculation of the most gigantic kind — itself a cause of insanity — was the habit of his life, and as he came to the period of his divorce he seems to have accelerated the speed of his wild projects. What had he, at the age of sixty-three, to do in South America, and the desert wastes of Arizona, except to sink his money. Was his the tranquil state of mind that comes to old age ? They call it enterprise ! I tell you it was fever — a blind, reckless desire to keep himself in -action, because there was that in his mind which would not let him rest. It was not judgment, it was the mere impetus given by habit; his successful ventures were the faintest glimmerings of his old genius. Is it the fashion of men generally to expand at his time of life? Do you hear of Commodore Vanderbilt doing so? He con- solidates all his interests, so that standing in New York he can keep his hand upon one lever — not upon a hundred levers. WHAT IP THE WILL IS BROKEN ? The situation, gentlemen, in case this will is set aside, is a proper object for your consideration. Whether it stands or falls, the widow will be left a very rich woman; she will have her dower, 398 MODERN JURY TRIALS. and will be well cared for. To that we have no objection. But we desire that her children, as well as herself, shall stand in the dis- tribution of this estate as the first wife and her children would. Who else are interested ? Miss Emily Ward. But she has already told you, under oath, that she has enough — for herself. Capt. Ward has already provided for her. It is only for her retainers — the Octjens and the Owen children — that she wants this large bequest. But it will be no great hardship to refer them to their own exertions. Who else is interested ? Tubal Cain Owen! He is interested to the extent of ten thousand dollars a year for his services as executor. Just think of it! The four executors are interested to an amount equal to what the state pays its twenty circuit judges — to more than it pays its governor and the whole staff of state officers. But it will be no hardship now for Owen to return to an obscurity in which he will draw no more rich wills. Mary Ward will get her share of the estate and marry the young man of her choice. Hem'}' and Lizzie, incapable of taking care of themselves, will be protected by the law, which after all is the best friend of the widow and the orphan. Milton and Charley will have their shares, and will be enabled to start upon whatever career of honor and usefulness that awaits them. Are we asking you to stigmatize or oppress anybody ? We only want the statutory dis- position of the property — that disposition to which the common consent of mankind has been given, ami which has been made ven- erable and respectable by ages of usage. If there is any hardship in this I am unaware of it. They say it is setting aside the sacred bequest of Capt. Ward. Mr. Hughes appealed to some of you on the score of your gray hairs, and asked how you would like to have your wills set aside. That was hardly a fair way of putting the matter. It would have been fair if he had added the supposition that you had done all the antics which Capt. Ward has committed — if you had consulted spirits as to the sanity of a wife of many years, and had relied upon them as he did. Rich men have no patent by which to keep their minds sound and their souls safe. This will is not that of Capt. Ward in his best days. It is of a man, not the father of these children, but the wreck of what that father once had been, led away by the blandishments of his religion and enfeebled by disease. Is this unkind ? It is not, if it is true. It does no one any wrong. Therefore, there is no injustice in ask- ing that the will be broken and the equitable provisions of the law be allowed to prevail. It is a fact to be dwelt on with suspicion and inquired into, that the will overlooks and disregards the natural objects of the testa- WARD WILL CASE. 399 tor's bounty. Where a will is unnatural those who propose it must come, with an excuse in their hands, and show you why it is so. Have the proponents in this case done that? Do you find that these boys or that Mary was crazy ? Why should Capt. Ward have disinherited them and branded them with the brand of insanity ? We have shown that he himself came from an insane family, and that his own apprehension of becoming insane was almost a mania with him; we have shown him in his old age wildly speculating and spreading his ventures from one end of the world to the other; we have shown you the men who surrounded him in these ventures, not the kind of men whom great men usually call about them, but men like Tubal Cain Owen, like little Mumford, like little Thomp- son. The other side themselves have shown you that he was not surrounded by men like Newberry, or Pond, or Meddaugh, or Mr. Joy, or like that leader of the- bar, Mr. Hughes. The places of the giants are filled by the dwarfs ! We have shown him falling off in his strength to cling to strong things. You have seen him in the companionship of those who knew him intimately, and they tell you, some willingly and some not, that after the paralytic stroke of 1869 he was not the man he had been before. The baleful effects of the disease that had blasted him never left him. He said so himself on the day before his death, and his sister could always see them. At all times and all seasons the glories of this new religion were on his tongue, and he was striving to make converts. He referred the most trivial affairs of life to the spirits. We maintain what I believe is common sense, that while you may not condemn a man's reason on account of his religion, that you may take his acts in connection with his religion as with anything else, and make him stand or fall by them. It is not that every spiritualist is crazy, or that spiritualism is evidence of an unsound mind, but that Ward's conduct under it showed infirm purpose and loss of will and moral power. He cast upon these boys burdens that older heads and stronger shoulders would have given way under. He never gave them any choice. He took mere puny striplings and said, in his heart, "They shall go forth and be giants." It was wrong- minded or wicked to do so. I have had to call your attention to the tremendous force that the testimony we offered in regard to the divorce would have had. The other side have come here with pretensions of saintliness, and I have had to strip the disguise from thorn and show them to be mere seekers after gold. They have held these boys up here as moral lepers, and yet they think it horrible that we should advert to the fact that a young woman, fresh from' her girlhood, should throw herself into the arms of a doting old 400 MODERN JURY TRIALS. man. I have clung to the moral sense of the community, yet I have asked you to do exact justice to this woman and to these boys alike. I need not tell you that the expectancy which surrounds this case, and the large audiences that come here teach us that something extraordinary is looked for. There are great principles at stake here, affecting the good of human nature and of your kind. I wonder that your hearts do not grow sick, and that you do not begin to believe that the will of man is not a feather wafted down the wind. Still there is strength and goodness somewhere, and you must not lose faith, as I do not, that the right shall prove the bet- tei - , and triumphant in the end. They appealed to you in the name of religion. So do I; in the name of religion in its purest form united with reason. I have no defense for the impositions which Capt. Ward practiced upqn himself — upon the form of belief which he entertained, and which the gentlemen of the other side found it necessary to accuse the priests and apostles of in order to make you think he did not entertain it. Spiritualists themselves will tell you that his conduct in regard to spiritualism was unsound; it was a hotch-potch of horrors that clustered around him. A man acting under this dictation is not one of sound and disposing mind. Are we to surrender our society over to this sort of thing ? Are we to cut loose from all reason ? Are we to go into the woods with the Indians and think, because the trees creak and rustle in the frosty night, that disembodied spirits are begging to be released from imprisonment? This case has passed before you in all its serious aspect. Ton have seen the selfishness, heartaches, greed for money, desire of revenge, fear, death. All have passed before you like a horrible dream ; so grotesque and painful are the realities of this matter. Are you to sit here like stocks and stones and be told you have nothing to pass upon ? We will leave this issue to you with per- fect confidence. We do not believe that a sane, just man, who ever loved his wife and children, will hesitate an instant in saying that these children have been most cruelly wronged by this will. Do not be afraid of your warm hearts that guide you in the ordi- nary affairs of life. Counsel have asked you to put these children in straight-jackets and consign them to an asylum, as if they were cursed with the disease of insanity. I know it will not be in your hearts to put that burden upon them, knowing, as you do, what a hard thing it is to live in this hard world. Imagine vourselves at this age, and with the consciousness that you have sound minds, and yet that a jury has declared you crazy, for that is what the gentlemen of the other side ask you to do. It were better to take WARD WILL CASE. 401 the life from them now than respond to the appeals to find them crazy as a charity. When did such a thing become a charity ? Gentlemen, you never will do this thing. There will never be a jury on the face of the earth that will so blast their young lives. Therefore, I look to your doing the rightful thing in this case. With your strong arms you will strengthen the weak ; with your kind hearts you will comfort those who are cast down. You will say, " We are insensible to the blandishments of wealth, beauty and eloquence, and will do right though the heavens fall." You will rectify the wrong that Capt. Ward did — no, not that he did, but that was done by his delusion, his insanity — that was done under influence. It will not hurt the dead man to say that his mind was lost, but to the living it would be a deadly curse. I thank you for the kindness and attention with which you have lis- tened to me. It has been a joy to me to speak in behalf of the right and of justice. I leave their case with you. I bid you to be true, diligent and sympathetic. While you do justice to the dead, do justice also to the living. The dead are beyond your reach and mine ; they are standing by a tribunal whose decrees are infal- lible — where you and I must soon stand, and where all wrongs to them will be righted. But if you do a wrong to those who are living, you do a wrong that will reach down into the centuries. In the name of God, you cannot do this. Of all the calamities inflicted on man insanity has been held the worst — this placing upon a sane man the badge of insanity. Nothing can be more cruel or lasting; it is worse than death, for it is a life of torture. I know that this matter will all come right, and that your true and manly instincts will lead you to the right conclusion. After two months it seems as if we had been here only a day. We have advanced well in life since this trial began. Think how quickly the end comes, and how quickly the seed you sow will spring up ; and let it make you patient in deliberation.* During the progress of the trial, as if to relieve the monotony of a somewhat tedious case, the following spicy contest occurred between the leading counsel, and created no little excitement and press comment. In that loud, clear, ringing voice, in excellent command but a little bitter, Mr. Dexter spoke to the court as follows : '' Mr. Redfield (who had been repeatedly quoted as an authority by the other side) is driven farther into the fallacy of saying that *This is hut a brief synopsis of Judge Chipman's address to the jury, Which, occupied two days in delivery. 26 402 MODERN JURY TRIALS. you can determine the validity of the will by taking into account whether it is a beneficent spirit or an evil spirit, and here the gen- tleman found it necessary to tell us that they shall prove to the jury that CajDtain Ward, in making his will, was influenced by a malicious spirit. The license of counsel in the opening of this case was unparalleled, and I did not suppose it would be continued on an interlocutory question. Propositions are made that have no more to do with the issues we are here to try than the hymns that are to be sung in the churches of this city to-morrow. They have had one effect, and only one effect — to deeply traduce and grieve my client, a most estimable lady ; but she bides the time until she shall present to this jury, sworn to hold their judgment in righteous equipoise, the other side of the case. She stands at the bar of the court with her children and his children, obedient to his last wishes as she was to his wishes in life, and will defend the memory of her husband and children, although stigmatized by his own son. Sup- pose it should turn out, when we come to the proof, that after a long life of care and ineffectual tenderness for these children, resulting on their part in reckless expenditure, dissipation, imbe- cility and incapacity for the most part, that the only course left was the wise and last act of his life — to extend the only protection pos- sible to them in making a provision so that their portions could not be wasted. How wicked, how cruel will these things then appear that have been said about Captain Ward and this lady. They will never be heard from again in this cause. They are inadmissible, based on no issue, and have no lodgment anywhere except on the slanderous tongue that uttered them." Me. Romeyit: "Do I understand you to apply that language to me ? " Mb. Dextee : "I do, sir. Born in the State of Michigan, and familiar with Theodore Romeyn's reputation as a lawyer since I first, over thirty years ago, went with my father into a court house in the city of Detroit, I am not at liberty to lay at his door a charge of ignorance of law, whatever else may be charged against him ; and when Theodore Romeyn stated in the face of this court and jury that he should attack the second marriage of Captain Ward, and show that it was no marriage, and show that this lady had submitted to unlawful embraces, and that her children and his children were bastards, I say that the man who uttered it well knew it had no place in these proceedings. I speak it advisedly, and I am accountable for it here and at all times.' WARD WILL CASE. 403 This occasioned a profound sensation, and Mr. Romeyn, in another speech, alluded to it as unprofessional]}' discourteous, but in his argument on the admission of the testimony offered, Mr. Chipman made the following as a reply to it : "We propose to submit this proof to the jury. We propose, above all things, to do it serenely and calmly as if there be no threat or intimation of a threat here. We propose to do it with full consciousness that we are not living in Arkansas. We do it understanding we are living in the state of Michigan, where the duello is unknown, and where gentlemen do not condescend to fisti- cuffs. And if there are those in this case who wish to invite per- sonal collisions, let them go and find friendly ruffians and brawlers in our streets who will pummel or be pummeled at an instant's notice to the satisfaction of any gentleman who desires it. For our own part, we know there is a law of the land which punishes the man who engages in riots and brawls. We know that the man who fights duels, and avers his responsibility that "he is answer- able here or elsewdiere," by sending a challenge which gentlemen are expected to send under those circumstances — is sent to the state prison, and disfranchised of his rights. As I said, we are here to enforce the law — not to break it. We are here to try this case serenely, and as God is my judge, I will try it bravely. While I say no discourteous word, as the court and everybody knows, to any man — while I will not turn this court into a scene of wild riot; while I will not introduce here what is unknown to us — plantation manners, and the language which we do not find in courts, but find in places unknown to courts, before God Almighty I will try this case, and if Mrs. Ward has done wrong I will say she has done wrong. I will do if twice ten thousand people stand in my way — if twice ten thousand challenges fall down here. This is all cheap, cheap fustian. It does not belong here. I do not want any of it. lam tired of it — sick of it. Let us try this case calmly and serenely — we with our gray heads and old faces — give up this hot blood — hot blood does not belong to us— we are all getting gray and getting old. Let us try it serenely. If the objection is made that we shan't go into this thing for any personal reason that does not address itself to your honor — if vain challenges and cheap twaddle are thrust into my face here, I remember I am the son of the state of Michigan, and live under the laws of that state, but while I say it, as every man within the sound of my voice knows, and I neither vapor nor boast, I don't shrink from any personal responsibility. I don't recognize the right of any man in open court to give a chal- 404 MODERN JURY TRIALS. lenge — to try to intimidate counsel. This is a land of free speech. We are all equal in the law, and by the help of Heaven I propose to obey the law, until some man attacks me, and then the law says I may protect myself, and thank God, I will do it as I always have done." The gravity of Mr. D. Darwin- Hughes was aroused in the matter, and he added the following: I am often pained, your honor, at evidence of bitterness between counsel. The practice of the law is a dignified, high and noble calling. It takes years of patience and painstaking to acquire character in the profession, and I think sometimes that one may say and undo in five minutes that which will blot and blur the work of twenty years. I am sorry for it; I regret it; I deplore personalities. It goes beyond the etiquette of true brotherhood, and I only add that the heat and worry of the cause, and not better nature of counsel, will engender harsh words, which I hope will pass away; and I know counsel are too generous to hold malice. Delivered in a quiet and dignified judicial manner, these sen- tences were strikingly emphatic. Geo. H. Penniman and Geo. H. Prentis were also counsel in the case, and the latter made a forcible address to the jury. Some time before court opened the court-room was thickly crowded, scores of people standing in the aisles and along the walls. Hundreds of ladies were present, and the populace crowded hard upon the bar. The venerable Alexander D. Frazer, president of the Detroit bar, was present and shook hands with Mr. Dexter before the latter began his speech. The judge cautioned all to keep quiet, especially those who sat close to the jury, and Mr. Dextee Opened His Argument : ON" THE TESTAMENTARY RIGHT. If your Honor please, Gentlemen of the Jury — The right is con- ceded by common law thonghout civilized countries that a man should dispose of his property as he sees fit. A great American judge has said that old age is solitary, and often the only way in which an old man can command the attention to his infirmities that they merit; is this right of disposition. This right cannot be trifled with in a particular case, and yet be preserved, and you, sit- WARD WILL CASE. 405 ting as jurors, are now to pass upon tlie right. The chief rule that I should impress upon you is that you should determine the case according to the law and the evidence ; not according to all that has been offered or that has been said. You have undertaken the difficult task of rejecting all outside and irrelevant matter, some of which may have found lodgment in your minds. Not only shall such matters be excluded from discussion in the jury- room, but it must not influence you. If cases are to be settled on evidence that is merely offered, courts may as well be disbanded. I shall try to weed out much of what I think is of the character I have described. When I have done so, I think I shall for the most part have answered the contestants. About the last thing said by the gentleman who preceded me was that we were afraid of this jury. Do you remember that they asked that you be excluded from the room on a certain occasion when a law point was about to be discussed ? I beg to answer you that he was mistaken when he made that statement. I never had more confidence in twelve men than I have in you that they would do justice. OUTSIDE ISSUES. The positions taken by the contestants amount to this, (l) that a man has no right to dispose of his property contrary to the judg- ment of his neighbors, (2) that Capt. Ward did not dispose of his estate as you would have disposed of it if you had been in his place. But the senior counsel for the contestants had already acceded to our request to charge that every man has a right to dis- pose of his property as he pleases, so long as he does not interfere with the legal rights of others. I have marked out what I believe to be misstatements of the law by my opponents. I may do this in a somewhat rambling manner, because I shall speak of them in the order in which I made memoranda of such hints as they were brought forth. You will remember that on the three days upon which my immediate predecessor spoke, he closed his argument each day with an implorative that you do not brand the sons of the testator with insanity. There is no such issue in the trial. Ought he not to have known it ? Is it not true that these boys might be insane and the will broken, or sane and the will sustained '? Sup- pose the jury should find them incompetent business men, and based their verdict on that conclusion, do they stamp them with insanity? Yet counsel thought it necessary to appeal pathetically and excitedly to your feelings in an extravagant manner on this ground, a ground that must be rejected from the case. Much of the first day occupied by the same gentleman was spent in showing you thaf 406 MODERN JURY TRIALS. Capt. Ward was a spiritualist. Has that been denied? It was decided by the court five weeks ago that that fact was of no signi- ficance, unless connected with something else in the way of an undue influence. But the theory of their case was that spiritual- ism had so weakened the mind of Capt. Ward that an artful lady had made it the instrument of working upon Capt. Ward to obtain such a will as she wished. But there is no evidence in the case to support that theory. All that long day and a half of ghost stories and sensational pictures has no place in the case. I shall show you where the vile creatures who have come here as witnesses to break the will of Capt. Ward have come from. I shall show that they have been bought, and who bought them. I join heartily with the gentleman in his denunciation of them as stale necromancies and lies from tophet! Counsel have asked you to notice what an aristo- cratic set we are. He has referred to the presence of James F. Joy, and the money kings of the Second National Bank, and has asked you to consider what debt the estate owes that institution. He might as well have made any other institution. What evidence of any debt was there, and if there were any, what had it to do with the case ? How could it affect the debt to sustain the will ? There have been appeals to you on the proposition that we were oppress- ing the poor. I have heard such rhetoric before an infuriated crowd of communists who wanted somebody else's property, but never before in a court of justice. In commenting on the witness William Harvey, counsel brought in allusions without support. They have talked to you about the dead Mrs. Ward; in what way can she be connected with the case ? They tell you certain facts can be proved by Lewis' letters, of which he brought great quanti- ties to the witness-stand, but they examined these letters and left them untouched, without bringing them into the case. They said Mrs. Ward indulged in a spiteful manner and improper expressions to Kitty Coyle. They are hard to please. If she had remained silent they would have said she was smitten with guilt. What she said was an honest rebuke for which she might be pardoned. And yet counsel have put words in her mouth that are absolutely and unqualifiedly false ! She has been the target of abuse; she has had a hard place in that household ! The counsel found it necessary to ridicule Aunt Emily, based on another misstatement. She needs no defense at my hands — she who is universally known, beloved and revered. Counsel said he had never heard of her before this case, and followed it up by saying that she was malignant and malicious, and that she hated the boys — she whose whole life has been one of gentle ministration, and has grown old among the "WARD WILL CASE. 407 blessings of children not her own. They say she is in this case prosecuting a claim. There is another misstatement. How do they speak for Mary "Ward ? Her guardian comes and refuses to let her stand among the contestants. Is not his judgment as good as Milton's as to her capacity ? We have had to make a full show- ing as to the condition of the whole family. Aunt Emily testifies to apprehensions on the part of Capt. Ward lest she should become insane. She had got to feeling, two years ago, as if she was being constantly followed. Was not that a remarkable delusion ? It was our duty to place it before you. Capt. Ward did what a sensible man would do in furnishing his children with guardians. He took for the infants their mother, and for the others grown men who were his confidants. An unfortu- nate attack has been made on Mr. Owen, one of these trustees. He tells you how it happened that lie received the largest sum of the four executors. It was because he released a claim he had for an interest he lost by Capt. Ward's death. And this lady was present and consented to the agreement. Counsel say he artfully drew the will so that his nieces and nephews might be provided for. That has been reiterated here, under the authority of Lord Brougham, eight or nine times. It is untrue. The only thing that Owen did do, and he did it by Capt. Ward's direction, was so to provide for the nieces and nephews of the captain that in a certain contingency the two children of the present Mrs. Ward would be cut off from a part of the inheritance. Does that look like a conspiracy between herself and Owen? MISREPRESENTATIONS. It is not only that facts have been asserted against us that do not exist, but qualities of character also. They have put for- ward false inferences. They say this lady is mercenary. They say the expenses of this suit on our side amount to $30,000. I do not know how they got at the facts. Mr. Prentis complains that we have not more Detroit lawyers. I thought I had the right to ask for the help of my old-time friend, Mr. Hughes, who tried causes before Mr. Prentis ever looked into a law book. But there might have been more Detroit lawyers in the case. There might have been one of the most distinguished and upright members of the Detroit bar taking part in it, if he had not left it. Every one knows that I speak of Hon. George V. N. Lothrop. His absence and silence speak more loudly than the voices of them who conduct the case in his stead. They say Mrs. Ward is mercenary. She offered to the children $200,000 out of her own share to save 408 MODERN JURY TRIALS. this scene— $105,000 more than the sum they say it costs her to try the case. Does that look mercenary ? Name one disagreeable feature in the case which they brought in; not one. The question of Fred's insanity and the wreath-picture in illustration of it; dis- graceful incidents in the life of Milton Ward and the parentage of the children who are now in the care of Mrs. Deming in Ohio. You remember their wicked story that Fred had killed himself because of the charge of his illegitimacy, when it appears that he killed himself through self-indulgence in laudanum. Kitty Coyle said the captain refused Fred money and charged him with not being his son, when we know that with a magnanimity greater than that of most men, he gathered the boy to his heart and treated him as the other children were treated. Now, as to the property. I want to know if there is any worse property than 60,000 acres of pine land with homesteaders settling upon it. They say the stocks have depreciated. They have been rising in value ever since Captain Ward made his investure, which was just after the panic. The other side didn't dare ask Hager- man what the mills were doing at Milwaukee; they had the officers of other establishments and did not dare ask them as to the condi- tion of the property in their charge. But the counsel tell you in a general way that Ludington is all there is of it. Now, let me get your attention to the figures. The estate is in good condition, has good credit, and has paid its debts as fast as they became due. Counselor Chipman says the stocks left in the will of 1873 to Mrs. Ward were' subject to payment of debts, and there was a great deal of difference between that and Ludington. That was a brilliant financial idea. All the property is subject to the payment of the debts. But they summoned us to produce wills, and being satisfied that the will of 1873 could not be found, they thought they might charge anything upon this lady. I will show you what these con- spirators have contrived, and how testimony has been manufac- tured. Consider the facts as to the relative estates that Mrs. Ward would receive under the will, or without the will. Under the will of 1874, she gets two mills at Ludington, $20,000; pine lands, $720,000; four barges, $66,000; lumber, logs, etc., $100,000; one-third of the home library, $550; one-half of the household, $5,000; total, $1,092,000. Without the will she could take $1,455,000 without dower; that is, she and her children lose, by the will, $363,000. Is she mercenary? These facts cannot be controverted. First she offers $200,000 to prevent this trial, and then she meets the attack in obedience to the wishes of her hus- band. What would you think of your wife compromising and WARD WILL CASE. 409 trading over your grave with regard to the property you had left her ? Yet they seek to show that she is animated by mercenary motives. Are we here in a court of justice to traffic about the right to make a will? Of what use is the right, if this can be done? The question is not what would be a good trade — not what might be done — but what did Capt. Ward do, and what was his last will, and whether he had capacity to make it. The will of 1SV3 is the one that they could not find on the other side, and which was never brought in till Kane and Slade had left the stand. It is the will which they would have you believe Mrs. Ward wanted to destroy; the will which gave her $250,000 more than the present one. Let us look into the conspiracy, however. Slade comes here and lets you know that he could be bi'ought here to act as a witness for $2,000. He is a wart, an excrescence — a pitiful huckster who sits on the temple of justice waiting to be bought. They say that Mrs. Ward went to New York with Crabbe, and visited Slade, and that, he called her "Kate," as she came into the room, and they dwell on that with dramatic effect. But Crabbe tells you that that inci- dent occurred with Mansfield, and thus their whole story falls through. They say that Capt. Ward was influenced with regard to Milton, and that he put him there in charge of an immense busi- ness in a bad time when he had no right to expect him to succeed. The time during which Milton was there was the most favorable for the lumber business for the past ten years. They say Ward and his son Milton were friends to the last hour. To be sure they were ! And the strongest mark of this friendship was the last will. Charles became bankrupt to the amount of 820,000. It won't do to indulge in general statements that his father was try- ing to speculate on him. He would have been glad to have left these boys as his successors. He himself went about the country attending to his gigantic business affairs, while Charles was going about in a gig with a fast horse before, and a blanket streaming behind, to attend races. He left the Black Swamp and Milton left Ludington. The hopes of their father were crushed out; he was disappointed. At twenty minutes to four Mr. Dexter closed for the day. Two or three times his voice, which is usually clear and ringing as it is powerful, failed him a little and became hoarse with a threatening attack of quinsy, the speaker feared. He availed himself of the judge's suggestion that he might defer the remainder of his argu- ment until another day. 410 MODERN JURY TRIALS. | I wish to say a word as to the religious faith of Capt. Ward. It is not strange that one should wish to peer into futurity. We clutch at a glimmer, however small. The evidence here shows Capt. Ward and Jacob M. Howard both had their attention called to Spiritualism and investigated it. I once thought Mr. Howard one of the elemental powers, so great was his intellect. To him you entrusted the high office of Senator. Ward, by his own efforts, rose to such prominence that, when he fell, commerce paused to record his services. But the belief is one that ought not to enter into an element to prejudice your deliberations in this cause. The will is said to have been made under the influence of spirits. But the codicil, made six months later, is not claimed to be so exe- cuted. And there are other bequests. If you break this will, you set them all aside. Here are fifteen separate bequests in all. Have you any right to interfere with the rest of them ? What is to become of little Mabel Ward ? What of Aunt Emily ? I hope that, in the last hours of inconceivable solemnity, we may each have a record like hers. For this trial has given me a living reali- zation of the good aunt that we read of in fiction when boys. I never expected to see it realized. But here it is; I have seen it in this noble-hearted, motherly woman, faithful to the end of life and long beyond ; for her the wise, the prudent forethought of a loving brother has made this. just and abundant provision. And you are asked to strike them down together, with the rest. But you will not; you cannot, from any eviderjce given in the cause. I submit, in all candor and reason, there is no evidence to set aside this will. After an eloquent closing, the case was given to the jury, who failed to agree, standing three for the will and nine against it. A compromise was made, which closed the contest. THE BRINKLEY CASE. 411 THE BRINKLEY CASE. New York, June, 1873. This case created no little excitement at the time, owing to the wealthy defendant and handsome plaintiff. Mrs. Brinkley had been an actress from New Orleans, whose rare personal charms attracted the attention of young Brinkley, while heir-expectant to a large estate ; he won the affections of the plaintiff and arranged a mar- riage while they were both boarding at the same hotel. The cere- mony was performed by a supposed minister, and the usual bridal trip taken, and on returning to the hotel they occupied rooms, and lived as man and wife — calling each other such — and had two chil- dren. After the death of Brinkley's father, and the change of fortune, he refused to longer own his marital relations, claiming the marriage was a myth, and suit was brought in one of the supreme courts of New York for heavy damages. THE HON. WILLIAJr A. BEACH. In his argument for the plaintiff, , Mr. Beach grew eloquent and at times extremely powerful over the mock marriage and the defendant's conduct. It had been urged with force that the marriage was void ab initio. A single paragraph will show his style of reply : "Evidence of marriage; " may it please your honor, what is evi- dence of marriage? Why, living together, may it please your honor ; cohabiting together, may it please your honor; introducing each other as man and wife ; walking in the sacred relations as such; rearing up children together, may it please your honor, that going down into the valley and shadow of death that a wife assumes in such relations; and for all these they were married ; they were married when he enjoyed the bloom of her youth and loving tenderness ; married when he drank deep of her heart's young affections ; married when it flattered his fancy to control her beauty ; but when we come to that after-stage of life, where the fire and fervor fade from the eye, and age comes stealing over the features and dims their brightness, when, of all times, mar- riage is to life most sacred, when they should be leading each other hand in hand down the western slope of life's steep hill, to rest together at its foot in a long repose ; just as they entered on that 412 MODERN JURY TRIALS. sacred journey, then it, is that this monster of humanity seeks to cast her off, and bastardize her children! JSfot married! Not married! Who, then, is married? The delivery of these words with a rising inflection with increased intensity, a flashing eye, a trembling lip, a withering look, a voice of power and penetration, seemed to fairly jar the building. It was a strong burst of irony, that utterly annihilated the defendant's theory, and the bonds of matrimony were welded and cemented so firmly together that judge, jury and spectator felt like saying, of course they are married. Jury gave $15,000 damages. THE TEIAL OF BEECIIEE. Trial in Brooklyn, January, 1S75. The history of this singularly interesting trial, that held the public interest of two continents for nearly thirty days, is a volume in itself. Brief notes of facts, incidents and arguments, from the public journals, are all that space will permit in this connection. The length of time occupied, both in the trial itself and the delivery of arguments by the distinguished advocates, precludes more than a mere mention of some salient points, for reference to the five original volumes of the reported case in New York. It is by far the most celebrated jury trial in America for the past half century, and every part of it could be studied with profit and advantage. Even did space permit a full report of the eloquent and able arguments made, they are too voluminous and elaborate for the general use of jury piractice. " Whether we regard the nature of the issue, the character of the parties, the eminence of the counsel, or the dramatic incidents of the trial, the case of Theodore Tilion v. Henry Ward JScevher must be regarded as one of the most remarkable in the history of jurisprudence. Its interminable length has been made the subject of many complaints ; but no case so complicated was ever pushed to so speedy a trial. The charge of adultery was first publicly preferred against Henry Ward Beecher in the month of July, 1874. TRIAL OF BEBCHER. 413 The complaint in the case was served in the following August. Issue was almost immediately joined, and trial was commenced in January, 1875, within less than four months after the leading counsel had been retained, the trial of the case has occupied a considerably longer time than was consumed in the previous pre- paration for it. It relates to transactions extending over a period of five or six years. Over 250 documents were made the subject of searching inquiry and analysis, and the proper interpretation of many of tbem requires no little amount of parol testimony. Over 100 distinct interviews are the subject of inquiry, and in respect to many of them the sworn testimony of the witnesses is in direct and irreconcilable conflict. The published testimony, printed in fine type, fills 3,000 foolscap pages ; the report of the proceedings will fill four or five large legal volumes. The legal questions involved are numerous, complicated, difficult, and, to the profes- sional mind, interesting. Over 150 distinct rulings of the judge on points of law, during the progress of the plaintiff's case, were noted and digested by the defendant's counsel, and probably the number of questions raised and decided during the defendant's pre- sentation of his case were quite as numerous. Nor has anything been wanting to lend dramatic interest to the trial itself. The counsel employed are among the most eminent at the American bar. On the one side Mr. Pryor, a man of large erudition and of a marvelously alert mind ; Mr. Fullerton, deserv- edly famous as an adept in all the arts of cross-examination ; Mr. Beach, a pungent and powerful speaker. On the other side, Mr. Tracy, a fervid and impassioned orator ; Mr. Porter, who maintains in the advocacy of a case the calm and judicial habits of mind borrowed from his experience on the bench ; Mr. Austin Abbott, pre-eminent at the New York bar for his legal learning, and known widely beyond it by his legal publications, and whose forecast and system have been conspicuous in the orderly presentation of the defendant's case ; and Mr. Evarts, who to a reputation already established as an acute and learned lawyer, has by his conduct of this case added that of a master of the entirely distinct art of advo- cacy before a jury. Every phase of character, too, needed for dramatic effect has been represented on the witness stand. Mr. Moulton, sharp, shrewd, calmly confident ; Mr. Tilton, oratorical and fluent ; Mrs. Moulton, quiet, timid, shrinking ; Kate Carey, the discharged servant-girl, the very ideal or " the greatest plague in life ; " Bessie Turner, pretty, keen-witted, plain-spoken, anima- ted and dramatic in her direct examination — in her cross-examina- tion a match in repartee for the lawyers ; Wilkeson, a curious com- 414 MODERN JURY TRIALS. bination of the newspaper and the railroad man, in exterior appar- ently a gentleman of the old school, in actual character a product of the very newest — the spirit of 1875 in the dress and mien of 1800; Mr. Claflin, in physical and mental characteristics a fine rep- resentative of a modern merchant prince ; Mr. Redpath, who recited his story as one who had come out of a cloister, and brought with him the remembrance of an almost forgotten dream ; Mr. Cowley, the Lowell lawyer — when Greek meets Greek, then comes the tug of war ; Mrs. Ovington, in the clearness, the frankness, and the simple-heartedness of her testimony an almost ideal witness ; and last, but not least, Henry Ward Beecher himself, reciting his story with an imposing and dramatic eloquence that compelled alternately laughter and tears from the audience, and the natural though indecorous applause which the sternest efforts of the judge were unable entirely to suppress. Day after day the court-room was thronged to its utmost capacity, and its doors besieged by clamorous applicants unable to gain admittance. Day after day the room allotted to counsel and reporters, and even the judge's bench, was invaded by clergymen, literary men, judges, lawyers, members of Congress, ex-Governors, some of them coming from as far north as Maine and as far south as Virginia, to look upon this extraordinary spectacle. The news- papers flung their doors wide open to a larger audience, and day after day surrendered whole pages of their issues to a verbatim report of the proceedings. These verbatim, reports required a corps of writers of from ten to twenty on each of the larger news- papers, and required on each, in reporting alone, apart from the cost of printing and paper, an average expenditure of $100 a day. None of the ordinary explanations of human conduct afford a key for the solution of the problem presented by this case. The crime of which Mr. Beecher is accused is, indeed, the unhappily too common one of seduction. But the accusation preferred against him is not that of falling, under a sudden impulse of passion, into a sudden and quickly repented of crime. He is charged with using the persuasive powers of his eloquence, strengthened by his religious influence, to alienate the affections and destroy the prob- ity of a member of his church — a devout and theretofore pure- souled woman, and the wife of a long-loved friend. He is charged with continuing the guilty intercourse during the period of nearly a year and a half, of cloaking the crime to his own conscience and to hers under specious words of piety, of invoking first the Divine blessing on it, and then Divine guidance out of it. He is accused of resorting to the most unscrupulous measures, first to crush his TRIAL OF BEECHER. 415 accuser, the indignant and outraged husband, and then to secure his acquiescence and co-operation in concealing the crime from the public. And, finally, he is accused of adding reiterated and mon- strous perjury to seduction, in order to escape the just conse- quences of his infamous conduct. If the accusation preferred against him is true, he is not merely weak and wicked, he is the basest of men. And this charge is preferred against one of the most eminent of Christian preachers ; whom the bitterest enmity has never before charged with being guilty of falsehood or pre- varication ; one whose chief est fault has hitherto been thought to be his culpable outspokenness. On the other hand, this charge is preferred by two men whose characters and station forbid us to classify them with ordinary conspirators and black-mailers. If the case is one of conspiracy, it is a conspiracy which has no parallel in the annals of the past. Black-mail is levied ordinarily by irre- sponsible and anonymous blackguards. The accusers in this case are persons of public reputation and honorable station in life. Mr. Tilton is known to the public as a brilliant though erratic editor, a respectable poet, a popular lecturer, and an effective stump-ora- tor ; Mr. Moulton as an active business man, and a member of one of the largest and best-known firms in their peculiar department in the city of New York ; Mrs. Moulton as a lady to whose purity and truthfulness, prior to the events connected with this trial, both the defendant and his counsel bear willing testimony ; and Mr. Tilton, Mr. Moulton, and Mrs. Moulton all swear to confessions by Mr. Beecher in absolutely unmistakable language. Thus both parties to the suit were really on trial : Mr. Beecher for seduction of an extraordinary and unparalleled character, and Messrs. Tilton and Moulton for defamation, conspiracy and black- mail of a character no less extraordinary. * * * There were money difficulties. Mr. Tilton had a good income, but he was a free spender. " I was always buying," he says, " costly things to beautify my house — pictures, books, furniture, and other luxurious frivolities which rich men can indulge in, and men who are not rich can not." The consequence was that there was not always money to buy coal for the fire nor dresses for the children, and Mrs. Tilton was lectured, according to the mood of her hus- band, for parsimony to-day and for extravagance to-morrow. Stories were rife that Mr. Tilton more than once carried out in practice the views respecting social freedom which he advocated in public. If any reliance can be placed upon his letters, he was not wholly faultless in this regard. The separation between hus- band and wife was a 'growing one. An eccentric mother-in-law, 41 6 MODERN JURY TRIALS. with an unhappy temper and a fierce tongue, did nothing to mend matters ; Mr. Tilton's eccentricities aggravated them. He had sleepless nights, and -amused himself by going about the house in his night-clothes re-hanging the pictures on the walls, or going from bed to bed, driving out the previous occupants, until he could find a couch to his liking. He began to look down upon his wife as a woman excellent in her way, but intellectually below him, and on more than one public occasion noticeably slighted her. That he was violent in his language in the home circle seems to be indis- putable ; that he was violent also in action is solemnly sworn to. His wife was a sensitive, shrinking, and somewhat morbid woman, idolatrously loved and revered her husband, accepted meekly his estimate of her abilities, and had not the strength to resist, nor the tact and skill to lead him. But, as in many another home circle, nothing of this transpired before the public. Outwardly there was a busy man, a loving wife, a j)eaceful home ; only to the inmates of the home were these secret unbappinesses known. Their chief revealer is the young lady known as Miss Bessie Turner, a kind of adopted daughter of the Tiltons. So when, in December, 1870, Miss Bessie Turner came to Mr. Beecher with the statement that the idolizing wife had left the idol, and with the request that he would come and confer with her at her mother's, though as pastor he had known something of the growing estrangement, he was greatly surprised ; and when he came to hear ber account of the reason, his surprise was deepened into a wondering indignation. Miss Bessie Turner assured him that Mrs Tilton was worn out with ill treatment, which she had borne with patience until patience had ceased to be a virtue ; she declared that she herself had suffered the insults of the husband ; and the occasions were narrated with some particularity. Her account was confirmed by the statements of Mrs. Morse, and by the acquiescing silence, rather than the accusing words, of Mrs. Tilton, Mr. Beecher hesitated what advice to give ; consulted with one of the deacons of the church and with his wife ; called with her on the following day ; and, acquiescing in their judgment, finally counseled a permanent separation. The estrangement between Mr. Tilton and his former pastor was now complete. Mr. Beecher had done that which it is always dangerous, even if necessary, to do — he had interfered in a domestic quarrel; and he had coun- seled a separation which, if it were consummated, must inevitably add to those public criticisms from which Mr. Tilton was already suffering. Mr. Tilton instantly took his resolution— »a twofold one : first, TRIAL OF BEECHER. 417 to recover his wife ; second (we quote his own language), " to strike Mr. Beecher to the heart." * * * * The statement of the defendant's case by G-en. Tracy was a long and labored argument, as Thomas Nast aptly said, in "painting Mr. Tilton black to make Mr. Beecher white." The conduct of Mr. Shearman, as a brother church-member and private counsel for Mr. Beecher, was irritable and at times cap- tious, but left no lasting impression on the jury to increase the chances of acquittal. The cross-examination of the witnesses by Judge Fullerton was critically severe and continued at great length, and considered the best ever sustained in this country. But the climax in this branch was only reached when Mr. Beecher himself testified, and was ques- tioned by the master cross-examiner, in that rapid, exhaustive and ingenious method peculiar to that counsel. Judge Fullerton, as a cross-examiner, has few if any equals in America. His rapidly-repeated questions to both Mr. Moulton and Mr. Beecher, his sallies of wit, his aptness in discussion of evidence, his wonderful analysis of every word in important testimony, elicited much comment and general praise throughout the country. He would begin by a general question, and being well supplied by both direct answers to questions and copious notes, would follow on for hours on a single theme. Space will not permit even an abstract of the evidence, but the general tenor appears in the argu- ment of counsel, and a single day's resume from the press will suf- fice : Mr. Fullerton returned to the question as to whether Tilton had charged improper proposals. Mr. Beecher, after a night's reflec- tion, still held to the theory that Mr. Tilton had merely car- ried charges made by his wife. The word "charge" had been used on the direct examination merely as a synonym for "declare,'' "narrate," or "state." Then Mr. Beecher. said that in his letter of disavowal to his nephew, Mr. Perkins, he never intended to embrace the Tilton charge. Next in order of consideration came the piece de resistance, from which so much was expected — the "ragged edge" letter. .Mr. Beecher went over the events antece- dent to writing that letter substantially as on the direct examination. Mr. Fullerton wanted to know why Mr. Beecher had not made an explanation to the church if he was innocent. He answered that he was keeping his part of the compact of silence. He did, and he did not believe the otjiera were keeping their part. [Laughter.] 27 418 MODERN JURY TRIALS. Judge Neilson ordered Sergt. Roger to remove from the courtroom any person caught offending. " Except the counsel," said Mr. Fullerton. "Except the counsel, ' repeated his honor, gravely, and there was another titter. Almost immediately afterward counsel and witness had a spat which caused the audience to offend again. Mr. Fuller- ton was pressing a question and followed it with a remark, that he was going to find out all about these things before he got through. " I don't think you are succeeding very well," retorted Mr. Beecher. The questioning was sharp in regard to the "keen suspicions" clause. The keen suspicions, Mr. Beecher said, were rumors preva- lent in his congregation in regard to the Bowen scandals. The Tilton matter was not in his mind when he wrote his "ragged edge " letter. He considered that if these scandals were inves- tigated the Tilton troubles would come out; and, furthermore, that a Congregational church was the worst tribunal before which an investigation could be had. The point of his proposed sacrifice was to restore happiness to Tilton's household. The contest was here extremely exciting. Mr. Beecher braced himself up, and question and answer flew back and forth with sharpness and rapid- ity. Mrs. Beecher smiled approval from her seat. " Was there no person in your congregation to whom you could go for counsel ? " said Mr. Fullerton. " Not one," said Mr. Beecher, with emphasis. " It is well to know it," retorted Mr. Fullerton, and the letter was dropped. The next subject taken up was the "true story." Mr. Beecher said that Tilton told him, before reading it, that there was one clause which, if he could stand it, he could stand the whole, refer- ring to the improper solicitations clause. "I thought so myself when I heard it," added Mr. Beecher, demurely. [Laughter.] " Why did you not rise up and deny the charge ? " thundered Mr. Fullerton. "Mr. Fullerton," answered Mr. Beecher, grandly, "that is not my habit of mind, or my manner of dealing with men and things." "So I observe," said Mr. Fullerton. The letter to the Eagle, and the letter of declination were then gone over. Mr. Beecher said he had not seen the latter letter after it was drawn up, but he corrected himself subsequently, when it was shown that in his long statement to the committee he spoke of having it in his possession. Then the interview with Mrs. Moulton was taken up. Mr. Beecher said he did not lie down that morning TRIAL OF BEECHER. 419 on the sofa or "on anything else." Previously he had often lain down in Mrs. Moulton's. presence. He was very positive that the kiss of inspiration was given while he was sitting at a table. He acknowledged that he had suggested to counsel to ask Mrs. Moul- ton while on the stand about the kiss. There was a sharp examination on the subject of calling Mrs. Moulton "a slice of the day of judgment." Mr. Beecher wanted to qualify his answers, and Mr. Fullerton insisted on stopping him. At length he said that he would swear positively that he did not make use of that expression, but would not be positive as to whether he had said something akin or not. "With a series of flat negatives, he denied that he had ever had any conversation with Mrs. Moulton in regard to a confession or statement to the church. His proposed resignation had no reference to the West charges. He disposed of the sentence in his letter to Moulton that " neither you nor Tilton should be troubled by the side you have taken in public," by saying that the last word was not "public," but "poli- tics." At this there was a flurry among counsel, and the letter was passed around and closely scrutinized. This interpretation was finally accepted. Mr. Beecher did not tell Brother Bell to break up the deacons' meeting. What he feared in regard to the women was that they would talk too much. He had never heard the third specification of the West charges. The answer almost knocked Mr. Fullerton over with amazement. He made Mr. Beecher repeat the denial three or four times, and, as a olimax, asked him: "You say that Theodore Tilton's charge of intimacy with his wife and the charges made by your church and by the committee of your church made no impression on you ? " "Not the slightest," answered Mr. Beecher, shortly. Mr. Beecher dodged the question for some time, and Mr. Fuller- ton became angry. Mr. Shearman popped up to his client's aid, but Mr. Fullerton declined to yield the floor, and the two lawyers talked together for some minutes amid general amusement. Finally, Mr. Shearman, angrily remarking upon the insolence of counsel, sat down. Mr. Fullerton said that he could be corrected by the witness if he had quoted wrong. Mr. Shearman sprang to his feet again, and said that it was a singular coincidence that when coun- sel had not the record before him he never quoted correctly. Mr. Fullerton retorted that when Mr. Shearman was not impert- inent he was not anything. Judge Neilson interposed with, " Probably counsel thought — " Mr. Fullerton interrupted to say that what Mr. Shearman thought 420 MODERN JURY TRIALS. could not possibly be of sufficient importance to take up the time of the court or his time. Subsequently, when Mr. Beecher said that the idea of blackmail had been given him by others, Mr. Fullerton stopped him with the remark that he did not want to become involved in another con- troversy with Mr. Shearman. The blackmail business continued to be the subject of some very sharp questioning. Mr. Beecher said that he did not get that idea until his return from the White Mountains. He did not know which of those with whom he talked had convinced him that there had been blackmail. " Well," said Mr. Fullerton, " name them, and we will divide the honors." " I think Mr. Shearman will have to bear his part," answered Mr. Beecher, laughing. "I thought so," remarked Mr. Fullerton. " Gen. Tracy was another," continued Mr. Beecher. Here Mr. Fullerton interposed a significant " yes." " They told me I was green," said Mr. Beecher, in a tone that gave rise to loud laughter. "Do you now believe that Mr. Moulton blackmailed you?" thun- dered Mr. Fullerton. Mr. Beecher tried to avoid the answer, but finally said, "I am afraid he did." Mr. Beecher could not recollect a walk with Mrs. Tilton in New York in the fall of 1871; nor whether he had been in an oyster or refreshment saloon with her in 1871 or 1872. He never admon- ished her not to allow her affections for him to go further, although he was at the same time laboring under a strong conviction that she had transferred her affections to him. He hoped to influence her by his moral conduct, not by warnings. The subject of paying for Bessie Turner's schooling was then considered. The money was given through kindness, and not under a threat or suspicion of blackmail. The connection of Gen. Butler in the case was then gone into. Mr. Beecher smilingly repeated the assurance that had been given him that Gen. Butler would " draw him out of this thing no matter what the facts were," whereat Mr. Evarts shook with suppressed laughter. It was preposterous to say that witness had ever likened Gen, Butler to Moses, and he gave an emphatic "No, sir," to the question as to whether he had said that the General was a great man — a man such as God Almighty permits but one or two to be born in a century. Again Mr. Evarts was convulsed, and a general TRIAL OF BEECHER. 421 laugh went round. Witness had not sent a messenger to General Butler. One had gone as the result of a consultation, and he [Mr. Beecher] had approved of it. No report was made to him only as to the result of the mission. It was Gen. Tracy who was the mes- senger. Witness never wrote to Gen. Butler, and could not recall saying to Mr. H. A. Bowen that Gen. Tracy was his counsel at the time. Geri. Tracy was not his counsel, merely his adviser. The next subject was Mr. Beecher's walks with Mrs. Tilton after the outbreak of the scandal. Two were described. Of one Mr. Beecher was not sure of the distance. Mr. Fullerton insisted on knowing it. Mr. Beecher responded that he was not a surveyor. "It was less than a hundred—" "What?" " Miles !" answered Mr. Beecher. He got it down finally to four or five blocks. He had never been in Sarony's photograph gallery in New York with Mrs. Tilton. As Mr. Beecher stepped down from the chair he accosted Mr. Fullerton, and inquired about his health. The great cross-exami- ner replied courteously that if the trial should ever end, he would then follow Mr. Beecher's example and go to his farm for a long recreation. Mr. Beecher repeating that he did not get the idea of blackmail until October, 1874, was confronted with his previously-made state- ment in which he charges blackmail. First, there was a sharp con- test on the statement itself, Mr. Beecher refusing to acknowledge that it was his written statement, because a stenographer had written it. Then he explained that his idea that he had been blackmailed was very fluctuating. Sometimes he believed in it, and more times not. He wrote the statement during one of the periods when he believed. " It was periodical, I suppose," remarked Mr. Fullerton, sarcastically. "No; not quotidian, ex- actly,'' responded Mr. Beecher. " Did it wax and wane with the moon ?" asked Mr. Fullerton. The reason witness had not done justice to Mr. Moulton during his periods of disbelief was that he had the fear of his lawyers before his eyes. "Are you in the habit of having your sermons published ?" asked Mr. Fullerton. Mr. Beecher acknowledged that he was, and also that he had preached a sermon on " The Nobility of Confession," on October 4, 1868. "I hope Mr. Fullerton is not going to pleach us a sermon," sarcastically remarked Mr. Shearman. " I would do so if I thought I could convert brother Shearman," retorted Mr. Fullerton. "I will be happy to give you the use of ray pulpit," said Mr. Beecher. "Brother Shearman is the only audience I will want," said Mr. Fullerton. " Perhaps he is the only audience you 422 MODERN JURY TRIALS. can get," rejoined Mr. Beecher. " If I succeed in converting Brother Shearman I will consider my work as a Christian minister complete," said Mr. Fullerton. This contest of wit created much merriment. Mr. Fullerton then read a passage from the sermon, the effect of which is that if a person commits a great sin, and the exposure of it would cause widespread misery, such a person would not be justified in confessing it, merely to relieve his 'conscience. Mr. Beecher said that that was sound doctrine. At this point Mr. Fullerton turned to the court, and pointing to the clock, said, "Nothing comes after the sermon, I believe, but the benediction." His honor took the hint, and at 3.55 the proceedings adjourned. A fine point of practice was won by the prosecution when the court overruled defendant's motion for a bill of particulars. The arguments on this motion were extremely elaborate. Mr. Shear- man's own words, in his published work, were quoted with force against such a bill and referred to as excellent authority. But the real duel of giants with the weapon of words, was fought by Mr. Evarts and Mr. Beach, in their closing arguments. Never before in any country had counsel such an audience. Every word was telegraphed across the. continent; every incident caught up and magnified, and it became the breath of the republic through the champions of each respective side. When Mr. Evarts scored a point the Beecher side applauded from Maine to Mexico. If Mr. Beach made a capital hit, a ripple of applause passed rapidly over the other side, each time exciting more intense interest in the general result and making an agreement of the jury daily less and less probable. The final end attained being but a reflex of public sentiment, for no community agreed on the guilt or innocence of the accused. The sentences of Mr. Evarts, so long, so powerful and so elabor- ate, are impossible to comprehend by any sketch or brief descrip- tion. He is a tall, slim, spare man, whose flesh seems but a scant covering of a mighty mind and the wiry muscle of an intellectual athlete. In delivery, his volume of words is inexhaustible. He lacks that freshness of language that comes of a less liberal educa- tion later in life, like General Schurz or General Garfield, whose newer words and terser sentences are more striking to the mind of juror^or listener. But his deep, classic reasoning is never lost on an audience like the one that attended in this celebrated case. Beginning with the graphic allusion that he wished for the eyes of Argus and one hundred hands of Briareus to see and unfold all the testimony before the jury, he rapidly sketched the history of the case, explained the defense, analyzed the evidence and argued TRIAL OP BEECHER. 423 extensively on the great boyish, confiding and charitable heart of Mr. Beecher. During his long and elaborate address, no unkind word, no bitter thought escaped his lips, but with a splendid array of facts and circumstances, he held up the defendant as a genius of wonderful attainments and rare good nature, generous to a fault, confiding and trusting long after he had been betrayed into bad fellowship. In closing, his appeal was inost touching and power- ful. The whole address was a masterly, able and brilliant argu- ment. But the climax was reached with the eloquent closing argument of WILLIAM A. BEACH. He had not uttered a dozen sentences before the whole audience was electrified by his thrilling style of language and delivery. He was clearly the head of the great combination of advocates. Mr. Beach is large, tall, well built, courteous and dignified man, with the air and manner of an Englishman, but the fire and fervor of a western orator. Now over seventy, with an erect, graceful carriage — a Chesterfield in appearance. Smoothly shaven, full, fair face, save a slight imperial beard; quick, flashing, gray eyes; clear, impulsive and powerful in delivery. He is able and determined in debate, and warmly attached to his clients' interests. His argument was a full history of the case from end to end, ably assisted by R. A. Pryor and Judge Fullerton, amply supplied with manuscript, and full as a fountain of the facts in the suit. He began by saying his esteemed and eloquent brother (Evarts) "had wished for a hundred hands and a hundred eyes to unfold and behold the testimony and place it in a fit light before the jury. His brother had had even these great wishes gratified, for he had not only the hundred hands of Briareus desired, and the hundred eyes of Argus, but the gold of Midas, to carry out the defendant's slightest wishes in every important particular." This side allusion to Plymouth Church created no little sensation and at once placed the whole country on a tiptoe of excitement. Striking out boldly into the marrow of the case, Mr. Beach gave an exhaustive reply to Mr. Evarts, and, with his determined and ener- getic manner, his rare skill as a linguist and debater, his pathos and magnetic eloquence, made a solid wall of facts and circumstances to uphold his position. At times he grew husky and weary; again, with eyes swollen and heavy, and voice low, even to a whisper, the scene was intensely dramatic. Once, he lost his temper a moment with the foreman of the jury, who gave a curious sneer at a sentence, 424 MODERN JURY TRIALS. and addressed the juryman by name, and in an emphatic manner directed him to remember his oath to try the case without prejudice. This attack welded Mr. Beach's friends on the jury so firmly together that they took sides, and a disagreement became an accomplished fact. This was all that could be hoped for in a case of such extreme length and differences of testimony ; so that, what may at first seem injudicious — a quarrel with a juryman — proved to plaintiff's advantage in preventing a defeat. Nearing the close of the trial, and for the second and last day, the court scenes were supremely eloquent and impressive. Mr. Beach was cheered when he entered the court-room, when he went out, and even at recess. The ladies shared heartily in the hand-clapping and applause, and were frequently heard to say, " O, did you hear that ? Listen ! It's grand !" His closing sentences were truly sublime, as he pictured the temple of justice tried by the turbulence of passion: We have stood together before this community, animated by a common object, seeking after the right in honest sincerity. The dis- tempered plea of turbulent passions has been against the altar at which we serve. The boisterous interests and sympathies of an inter- ested people have tried the firm foundation of this temple, but the spirit of justice sees nothing of the tumult, hears nothing of the uproar. Calm and confident, she leans trustingly upon a juror's oath. Your consciences uphold the shaking temple and the tottering altar. If they weaken and fail, if the strong pillars of honesty and truth give way, temple and altar and God sink to a common ruin. The struggle this day is between the law and a great character and a great church. If the latter triumph, and the law is trodden down, woe unto him who calls evil good, and good evil. No man venerates more profoundly than myself the magnificent genius of this defendant. His large contributions to the literature of the times excite the sentiment of which Macaulay spoke in his essay on the Life of Bacon. Rich as he is in mental endowments, prodigal as his labors have been, they can shelter no offense against the law. Genius as lofty, learning more rare and profound, could not save Bacon. He sinned and fell. Upon his memory history has writ- ten the epitaph, "The greatest and the meanest of mankind." Toward great men in disgrace, like those who fall, Whittier, New England's gifted poet, writes in his poem entitled "Ichabod:" So fallen ) so lost 1 the light withdrawn Which once he wore I The glory from his gray hairs gone Forevermore 1 TRIAL OF BEECHER. 425 Eevile him not — the Tempter hath A snare for all, And pitying tears, not scorn and wrath, Befit his fall I O, dumb be passion's stormy rage, When lie who might Have lifted up and led his age Falls back in night. Scorn 1 would the angels laugh to mark A bright soul driven, Fiend-goaded, down the endless dark, From hope and heaven 1 Let not the land once proud of him Insult him now. Kor brand with deeper shame his dim, Dishonored brow. But let its humbled sons instead, From sea to lake, A long lament, as for the dead, In sadness make. Of all we loved and honored, naught Save power remains — A fallen angel's pride of thought, Still strong in chains. All else is gone; from those great eyes The soul has fled : "When faith is lost, when honor dies, The man is dead 1 Then, pay the reverence of old days To his dead fame; Walk backward, with averted gaze, And hide the shame I Gentlemen, I commit this case to you in the sublime language of the great orator who speaks to you from his grave at Marsh- field: " With conscience satisfied with the discharge of duty, no con- sequences can harm you. There is no evil that we cannot either face or fly from but the consciousness of duty disregarded. It is omnipresent, like the Deity. If we take to ourselves the wings of the morning and dwell in the uttermost parts of the earth, duty performed or duty violated is still with us for our happiness or misery, and if we say darkness shall cover us, in darkness as in the light our obligations are yet with us. We cannot escape their power nor fly from their presence. They are with us in this life, will be with us at its close, and in that sense inconceivable solem- nity which lies yet further onward we shall still find ourselves sur- rounded by the consciousness of duty to pain us wherever it has been violated, and to console us so far as God may have given us grace to perform it." [Applause.] 426 MODERN JURY TRIALS. At the close of his argument, Mr. Beach was greatly applauded, and soon after was warmly congratulated by Mr. Evarts. The speech occupied over a week in delivery, and would fill a volume by itself. Space will not permit a full account of this most mar- velous trial of any in America. The jury stood, nine for defendant and three for plaintiff — about as public opinion averaged. The charge of the court could be summed up in a sentence: "You have heard all the testimony and the arguments; take the case and decide it according to the evidence." A model charge. THE BABCOCK CONSPIRACY CASE. Tried at St. Louis, February, 1876. The close of 1875 and early winter of '76 was an exciting period with the famous ring of illegal distillers in the cities of Chicago, Milwaukee, Cincinnati and St. Louis. The startling discoveries through Secretary Bristow, the successful prosecutions in Wiscon- sin, the incisive words of General Grant, to " Let no guilty man escape! " led many to confess and plead guilty, while some were promptly convicted. The central figure or seat of war was at St. Louis, where Joyce and McDonald were supposed to have colluded with General Bab- cock, a near friend of President Grant, to defraud the Government of its revenue on distilled liquors and divide the profits. Early in 1876 General Babcock was tried in the United States District Court, before Judge Dillon and a jury. Among the distinguished counsel wera General Broadhead, Gen- eral Dyer, General Porter and Hon. Emory A. Storrs, each with a reputation fully established, and in this trial each displayed signal courage, courtesy and ability, as extracts of their addresses will prove. The leading features of the trial were the liberal range of testi- mony admitted, showing that fraud opens a broad door in such cases. Even the fact that a telegram was received at St. Louis, and mailed, properly prepaid and directed, was decided to be some evidence that it reached its owner. The same rule was held as to the mailing of letters, although no evidence aside from this could be adduced to show the actual receipt of the dispatches. BABCOCK CONSPIRACY CASE. 427 The arguments of the four counsel reported each contain sep- arate statements of the offense charged and the explanation ingeni- ously given. The case was very sagaciously managed and sharply contested every inch of advantage held on either side. It is diffi- cult to compare the arguments, but the word-pictures of Mr. Storrs are vivid and life-like. His closing appeal to the jury was deliv- ered in an eloquent and effective manner. Mr. Storrs is below the medium size, under fifty years of age, dark brown hair, full short beard; a man of great fluency and com- mand of language. He speaks with intense force and feeling, rather flowery in his rhetoric, and, when fully aroused, his lan- guage is free and well chosen. In speaking, he is wholly absorbed in graphic, animated action. His manner alone is often very elo- quent, and always highly pleasing to an audience. It is a matter of wonder to many where he finds so many apt illustrations in the midst of a heated discussion. In a word, he is gifted, as a speaker. argument of mb. stoees. If Your Honor Please : Gentlemen of the Jury — You are here to-day, and have been for the period of nearly two weeks, engaged as jurors in listening to the evidence in a case which, without exaggeration, possesses the most transcendent importance. In but very few instances, gentle- men of the jury, in the history of this country have issues so sol- emn in their character, and so serious in their nature, as those which are involved in this case, been presented for the consideration of a jury. I am sure that all these considerations have impressed them- selves duly upon your minds; for I have not failed to note, and I have been profoundly gratified to observe, the patient, earnest, eager, faithful attention which you have given to this case from its commencement down to the present moment. The supreme importance of this case, and the magnitude of the interests which are involved in it, furnish a sufficient apology to me, if any apology were required, for impressing upon you the necessity of bringing to bear upon it your most calm, unbiased and unconstrained judg- ment. It is a part of the history of the immediate times in which we live, and to which I deem it entirely proper to refer, that, for the period of nearly a year past, there has been, with reference to the general topic in the investigation of which you have been engaged, an intense degree of public feeling and excitement. You do not, gentlemen of the jury, when you quit the homes from which you have been called, cease to be men. You are the 428 MODERN JURY TRIALS. same men here to-day that you are by your own fireside, and in the presence of your own families. These great gusts of pub- lic feeling, these whirlwinds of public excitement that sometimes sweep across the land, and take even the wisest men from their feet, may possibly affect you upon the jury box as they would effect you at home. I am a firm, thorough, devoted believer in the ultimate right of what is called "public opinion." I believe that it is almost always 'correct, and almost always right upon the premises upon which it. is founded. A well- regulated public opinion, understanding all the facts, moving with- out bias, prejudice or passion, is, I am glad to recognize, the surest earthly evidence we have of truth. But, gentlemen of the jury, it has never been considered a very safe element in the administration of justice, since nearly two thousand years ago it profaned the judgment seat and insulted heaven by the cry of " Crucify Him, crucify Him ! " You are here to-day as jurors in a great and sol- emn cause. I am here as an advocate in that cause. Tou have your duties to perform — I have mine; and I ask and pray you, gen- tlemen, as we both enter upon the performance of these duties, that we may do them with "hearts void of offense towards all;" that you may dismiss from your minds every bias of prejudice or pas- sion, which by any earthly possibility could have found a lodgment there; that, with clear judgment, un warped by any breezes or heats of public controversy; that, with unprejudiced hearts, unaffected by the poison of political passion; that, with pure, upright, honest judgments, untwisted by any mere private feeling of your own, we may approach the discussion of this great case. We are here to-day, gentlemen of the jury, in this darkened room; the surround- ings are not at all impressive, the actual picture which you would make of it possesses no elements of beauty or of grandeur; but, clothed in its highest reality, it is the most splendid theater upon which a jury ever stood. It is a high and elevated plateau, toward which to-day the eyes of forty millions of people are eagerly strained. Let us, then, with God's help and our own, reach in the investigations which we are pursuing, and in the conclusions to which we shall ultimately arrive, the full height and measure of this mighty argument. If you have prejudices, dismiss them; if you have preconceived opinions, put them down; if you have feel- ings that have already been aroused, smother them. I approach and come to this great question with that rectitude and perfect fibre of conscience which the law and your own better judgments demand. We are all, gentlemen of the jury, far, very far, from being perfect. There is no duty which men are ever BABCOCK CONSPIRACY CASE. 429 called upon to perform so solemn in its nature as that of passing judgment upon the motives of their fellow-beings. The poet has well said, and I repeat it — '• In men whom men condemn as ill, I find so much of goodness still; In men whom men pronounce divine, I find so much of sin and blot, I hesitate to draw the line Between the two, where God has not." I shall call your attention, gentlemen of the jury, in the dis- cussion of this case, to the facts in it. I shall not attempt — and I could not succeed should I make the attempt — to impose upon your calm judgments by any flowers of rhetoric, or by any graces of oratory ; all the eloquence, gentlemen of the jury, that will be developed in what I shall say to you, will be the tremendous elo- quence of these facts. I have listened with pleased and earnest attention to the argu- ment to which you have also listened this morning by a great Mis- souri lawyer ; by an able lawyer; one with a reputation estab- lished, not only throughout the boundaries of the state which he honors, but throughout the whole country ; and you will agree with me, gentlemen of the jury, when I tell you that but one gen- eral impression can be drawn from the speech of Col. Broadhead, and that js that it was a speech without heart and without faith in the cause that he advocated ; and to the very last degree — able in the statement of facts which were not proved ; able in the sup- pression of facts which were proved ; able in the distortion and contortion of facts, the obvious existence of which no man could controvert. For nearly two weeks have we been engaged in this investigation ; day after day passed before the name of this defendant had even been mentioned ; we investigated down to the very last detail of the circumstances attending the conspiracy about which so much has been said, and concerning which all men's mouths and minds have been full. It is well for us to-day, it seems to me, before proceeding to the discussion of this case to deter- mine in our minds just what the refuse matter of the case is, and what are the actual issues that this record presents to us. In the first place, it is perhaps unnecessary for me to observe, but it is true, nevertheless, that the consideration as to whether this alleged conspiracy was great or small is one with which you have nothing to do. It may have been, as it doubtless was, absolutely gigantic in its proportions ; by its very vastness its shadow may have stretched like a pall over the whole land, and. yet if the 430 MODERN JURY TRIALS. defendant was not a member of that conspiracy, this stupendous magnitude cannot affect him. In the same connection, it is a matter entirely irrelevant to this issue how much revenue the gov- ernment lost by means of this conspiracy ; whether it were mil- lions, or whether it were hundreds of dollars, if this defendant was not a member of that conspiracy, that consideration is entirely foreign to this investigation. At the same time it is equally irrele- vant whether Joyce and McDonald, Avery, Hogue and Fitzroy were all members of this conspiracy ; if the defendant were not a member of it those considerations are entirely extraneous, and you will reject them from your consideration. This defendant is indicted as a party to a conspiracy. Will you bear with me, gen- tlemen of the jury, when I suggest to you that there is no offense denounced by the statute book so dangerous in its character when the charge is once made, as this very one of conspiracy. It is the only offense known to our law where one man is liable to be pun- ished for the act of another, where the honest citizen, the upright man, one whom we had honored, may lose life and liberty, not from any word that he has uttered, not because of any act that he has ever done, but for words spoken and acts done by others. THE CHARGE OF CONSPIRACY. With what is this defendant charged ? In the broad and gen- eral language of the indictment, that he combined and confeder- ated with certain persons named in the indictment to defraud the government of the United States. The statute upon which this indictment was found, and under which this defendant is to-day upon trial, requires that some act should be done in furtherance of that conspiracy before the offense itself is complete. It is not pretended here that there is anything like direct proof of any connection on the part of this defendant with this conspiracy. It is not pretended that he shared in the acts set forth in this indictment as the means by which it was con- summated; it was idle to claim that. The government was defrauded by the removal of highwines without the payment of the tax, and more than a thousand miles of distance separated this defendant from the active theatre in which this conspiracy was in operation. How, then, does he become a conspirator? What has he done in furtherance of this corrupt and fraudulent scheme? He has removed no spirits, that is not claimed. It is averred by the learned counsel who have addressed you that the position which he filled was to furnish information — of what? They say of the coming of detectives. I say now to you, gentlemen, and I will BABCOCK CONSPIRACY CASE. 431 demonstrate it before I have finished, that if that was the part assigned to Gen. Babcock, he miserably and wretchedly failed in its performance, for during the whole period of time covered by the operations of this conspiracy, not one single syllable of infor- mation did he ever furnish to the active conspirators with reference to the coming of any human being here to investigate their frauds. Was it to give information generally? There is not in all this vast mass of testimony, piled up as it has been within the last two weeks, one single syllable of evidence showing or tending to show that Gen. Babcock ever communicated to a single member of this conspiracy one single item of information which they had not before that time possessed. To-day it was hinted by Col. Broad- head that the peculiar mission which he was to fill, and the special duties which he was to perform, were to prevent the sending of officials hither. There is not one syllable of evidence in this case, gentlemen of the jury — and I challenge your attention to that fact — showing, or tending to show, that he ever prevented a single man coming here. I will pause right there upon the very thres- hold of this case. What in the name of God was he to do ? For what was he to be paid ? What part was he expected to play in this great conspiracy ? Two weeks have come and gone. Reams and reams of testimony have been taken. The whole power of the government has been employed for nearly a year in developing the facts; the grave has been robbed for evidence; every telegraph office in the country has been ransacked and raided; the sanctity of privileged communications between counsel and client has been invaded; and yet, down to this day there is not one single syllable of evidence from which any honest, right-minded man can say that he could tell or guess what part of this conspiracy Gen. Babcock sustained. I challenge your attention, gentlemen of the jury, to that great consideration which meets us at the very threshold of this case. It stands there like a mountain barrier in your way, and yon might as well attempt with your naked hand to twist Mount Washington from its eternal anchorings in the hills of old New Hampshire and heave it into the sea, as to remove that tremendous obstacle which the Almighty has placed between that defendant and a conviction. I care not, gentlemen of the jury, how strong your impressions may have been when you came here; I care not what seductions of eloquence or what threats or cajoleries may be employed, when you come to ask yourselves the question and your heart answers it: What part was Gen. Babcock expected to per- form? You cannot tell. If you say it was to give information, your conscience throbs against your side like a trip-hammer and 432 MODERN JURY TRIALS. demands that it shall be heard to refute a conclusion of that char- acter. Through all this lapse of time, with all these gigantic pre- parations, with all the sunshine, as if blazing planets were shining upon us, to aid them, these wretched, purposeless, and so far as any connection with this case is concerned, meaningless telegrams, have been discovered written by this defendant. Was there ever such a tremendous pronunciamento and such a miserable performance? I call your attention again to another feature which characterizes this case, and that is this: Taking advantage of the supposed public excitement ; taking advantage of the natural indignation which every honest mind entertains towards these frauds; taking advantage of supposed political feeling — taking advantage of all these, and forgetting the first lessons that he learned in the law, Col. Broadhead, the great leader of the Missouri bar, a noble and fair-minded man himself, swept off his feet by the breeze that has been blowing around him for weeks, asks us to explain something which he says he cannot explain, forgetting that in the better times and in the better days, to which, I thank God, we are rapidly coming back again, it was for the prosecution to prove guilt before a defendant could be called upon affirmatively to establish his inno- cence. We have, gentlemen of the jury, accepted the situation. We have been compelled to accept it. We have desired to accept it. We recognize the fact, charged as we have been with the commis- sion of this foul crime, which, if proved, would consign us to utter infamy. That we are compelled to be tried, and are willing to be tried, at the cost of the abandonment of every legal principle which, for thousands of years, has been deemed essential for the protection of the rights of the citizen. Tou know, gentlemen of the jury, as I know, that whatever the theory of the law may have been, this defendant did not come into this court-room, so far as this transaction is concerned, clothed with that sacred presumption of innocence which the law throws around every man; you know, as I know, that there has been no single argument addressed to you, nor in your hearing, which gave him the benefit of that pre- sumption; and to-day, forgetting those great lessons which he has learned, and which no one is more able to illustrate than Col. Broadhead, he freely says to you that he cannot understand what a dispatch means, and that, therefore, you are to presume it means guilt. He has been unthinkingly and unwittingly lifted up to that position, which, if we should reach, gentlemen of the jury, yourselves and your homes, and all that you hold dear in this world, would not be worth an hour's purchase. I say we have accepted the situation. We ask to-day, from this BABCOCK CONSPIRACY CASE. 433 jury and from this great country, no favors; we are begging no privileges; but we do demand a right; and in this place, speaking to you, and through you to the whole nation, we demand the right of an honest, intelligent, fair-minded judgment upon these facts. We simply say to you, gentlemen, that we think it would be very unjust, that the honorable career of this defendant should rise up against him. We think it would be very unjust that, because yet a young man, standing upon the very threshold of his career, the good deeds that he has done should rise up and reproach him. We think it would be unjust to the extent that it would be cruel, that because with the noble lessons of thrift and honor, fidelity and God-fearing that he has learned in his old home, and has carried with him through life, he should be convicted of this crime. If he is guilty, blot out all that he has done; if he is guilty, forget that up to this time, his life has been pure and lofty and stainless; if he is guilty, bury all these achievements out of sight, which, young as he is, have shone along his pathway like beacon-lights. We ask of you, gentlemen, nothing for his position. Give him the same fair trial, give to the facts the same honest consideration that you would give to them if a newspaper boy from the streets were on trial before you; give him that and nothing more. Now, gentlemen, you must, when you come to consider these facts, put yourselves back to the period of time when all these facts occurred. When you come to read these dispatches and these letters, you must read them not in the light of to-day, for that is a false light and will mislead you, but in the light of the day when they were written, and when the parties to them received and read them. Read these telegrams sent to Babcock in the light of the days when he received and read them, and when Joyce and McDon- ald were, so far as he knew, honored officials and trusted men. Do not read them in the light of to-day, when, broken in character and bankrupt in reputation, they fill a convict's cell. Read them, remembering this, that with all the gigamic preparations that have characterized this case, from its commencement to to-day, not one single syllable of evidence has been adduced to show that General Babcock ever suspected, or had reason to suspect any fraud. In ordinary times and under ordinary circumstances, I might rest this case right there. I defy any man who knows the evidence in this case to point me to the spot or place which indicates that Gen. Babcock knew the corrupt schemes in which Joyce and McDonald were engaged, and if he knew them not, the case fails at its very- threshold. Gentlemen, any one of you may give an opinion of the most 28 434 MODERN JURY TRIALS. important character to a man who, in his heart, is the most notori- ous scoundrel on the planet; the information which you thus com- municate may be absolutely indispensable to enable the party to whom it is communicated to carry out and consummate a crime; but you in your own hearts following me have already made the suggestion to yourselves, that the communication of that intelli- gence which might have ripened into the' most stupendous crime cannot implicate you, unless you knew the character of the man to whom it was given and the purpose for which it was to be employed. I take one step further. Has it occurred to you to inquire where is the evidence in this case that Gen. Babcock knew the purposes for which the information that Joyce and McDonald sought from him was to be employed ? Let your minds travel back over this «ase again — review every syllable of testimony — where is the proof ? The case does not show it, for it is not in it. Col. Broadhead tells you that a conspiracy is a difficult crime to prove. All crimes are committed secretly, and conspiracies do not differ in that particular from any other crime, but the difficulty does not dispense with the proof. Ah, gentlemen, Col. Broadhead, in that suggestion, conveys this lurking idea, that because it is difficult to prove, and from the fact that we have not proved it, therefore, he substantially says — because that is the speech that came out from the pores, but not from the mouth — -"I cordially invite you to violate your oaths by assuming that the crime has been committed, although we have been unable to show it." But, gentlemen of the jury, if Gen. Bab- cock had ever known the purposes for which this information was to be employed, wouldn't they have found that out? This case is full of wonders. Stop again! A thousand miles separate Babcock from the theater of this conspiracy. He never saw a distiller here; he never knew one here; he never heard of one by name; he was as ignorant of the existence of the distilleries here as Fitzroy evidently is of the teachings to be drawn from the story of " Annanias and Sapphira." He is a conspirator in whom no knowledge is shown. With all these gigantic efforts in the way of the development of facts, not a single syllable of proof showing, or tending to show: first, either that he suspected the character of the men with whom it is said he was conspiring; second, that he ever dreamed of any guilty purpose, which they themselves enter- tained, in replying to questions which they put to him; third, that he ever knew even that there was a distillery here, or that there were facilities in that way of perpetrating frauds against the rev- enues and government of the United States. If these facts had BABCOCK CONSPIRACY CASE. 435 existed, and this facility of telegraphing and writing had been opened, don't you know that somewhere or other there would have lurked and leaked out the evidence of it? It is idle to tell us that Babcock knew that McDonald and Joyce were bad men. They have not proved it. If he knew it, they would have proved it. It is utterly idle to tell us that he knew they entertained any guilty purpose when they made inquiries of him; if the fact had existed, they could have shown it. Removed, as I have said, leagues and leagues from St. Louis, no one of these self -convicted distillers that they have trooped up here as witnesses, day after day polluting and besmearing a court of justice by their unclean presence, has hinted that he ever saw or heard of Gen. Babcock, except as a pub- lic man. Now, then, Joyce, the principal operator in this great piece of scoundrelism, was a revenue agent in St. Louis— appointed by whom ? By Babcock ? No. By the President ? No, again. A clerk in the department in Washington, transferred from there and appointed a revenue agent in Missouri by the [commissioner of internal revenue. There, so far as the history of this case is con- cerned, occupying that position, we first find John A. Joyce, in December, 1870, when the acquaintance between Joyce and Bab- cock opens in this fashion. Politics and political feeling, I am told, have always run high in the state of Missouri. We meet this acquaintanceship at its very outset, and I find a letter from Joyce to Babcock, inclosing an editorial written by Joyce in favor of the administration, of which Gen. Babcock forms a very humble part; and in that way the acquaintance thus opened proceeds. Editorial after editorial, speech after speech, does the active, zealous Joyce inclose, month after month, to Babcock. The receipt of these inclosures is recognized, and all the correspondence, leading us step by step right down to the very moment when we encounter the first dispatch, which shows to an absolute demonstration that that acquaintance was merely political, and nothing more. The learned counsel for the Government would have you think that this con- spiracy jumped full-born into life and existence, and without any preparation, without any previous talk or arrangement, it came out complete and perfectly rounded in all its parts, on the occasion when Ford died and on the twenty-fifth of October, 1873, when Joyce telegraphed the fact to Babcock. Now, gentlemen of the jury, there would have been no difficulty, if there had been other dispatches, in finding them. The offices have been ransacked; the first dispatch which they offer in evidence is the one from Joyce to 436 MODERN JURY TRIALS. Baboook; and from that they would have you infer a guilty com- plicity between the parties to that telegram. Now, let us read it: "Poor Ford is dead; McDonald is with his body. Let the President act cautiously on the successorship." This dispatch was not answered. No attention whatever was paid to it. Can you guess a guilty significance from that dispatch ? Col. Broadhead says to you, "What does it mean?" I answer him, it means precisely what it says. It means that Ford was dead. It means McDonald was with his body. It means that, in that florid and declamatory way in which Joyce was accustomed to express himself, and in the consequential manner which he was accustomed to assume, "Let the President act cautiously on the successorship." Why cautiously? That a good man should be appointed. As this correspondence shows down to this very time, Babcoek had every reason to believe that Joyce was not only a zealous friend of the administration, but a thoroughly honest man. Joyce was here in St. Louis. Now, what was done? Ford was the old-time friend of the president. They had been, as I shall have occasion to show you, friends for a quarter of a century. Ford had died; and if there is a man in this country whose heart warms up to his old friends and those he has known in his earlier days, it is the President of the United States. He is very slow to forget them. He is very slow to bury out of sight any act of kind- ness, that in the olden times they may have done for him. He is very quick and ready to forgive. The old friend, who, for a quar- ter of a century he had known, was dead. He had died away from home, suddenly and alone; and with that thought about him, Joyce knew the cord he would strike, and telegraphed to the private sec- retary of the president, "Poor Ford is dead; McDonald is with his body." Gentlemen of the jury, is that evidence of guilt ? In the name of God, to what conditions have we reached that that is evidence of guilt? What will you have a man do in order to avoid the con- clusions of guilt; or, what shall he not do in order that he shall not be considered guilty? On the very day that Ford died, or on the very day, at least, that this dispatch was forwarded from Joyce to Babcoek, the sureties on the bond of Ford, interested in the matter, telegraphed to the president." Let me read the telegram to you, and let me also explain the situation; because, when this situation is fully explained, the miserable pretense that there is guilt in these dispatches, fades entirely away and leaves no smear or stain except BABOOCK CONSPIRACY CASE. 437 upon the hands and tongues of those who have made the charge. Ford was away from home when he died. His sureties, leading prominent men in the city of St. Louis, were liable for all the acts of his deputies, of whom they knew nothing. Now, there is nothing more eloquent than testimony, when it is intelligent. Month after month has the public mind been filled with this idle, this wicked clamor, and see how it fades away ! This is from the deposition of the president: # * * * * * * Another curious circumstance : Why was it that when my good friend Col. Broadhead was reading Joyce's letter he did not read the vital part ? Why was it that he omitted to read the very para- graph for which we introduce it ? Joyce says : SjC 5jC *!* ^t» •!■ *K * -jt " Now, I am in earnest in recommending Maguire, having failed myself. Look at my dispatch to the president. Do not noise this fact around unnecessarily that I myself was a defeated applicant.'' Now, I read the balance of this letter, gentlemen of the jury, because, although it is dead and lifeless, yet it is eloquent with the truth of the situation which these parties held towards each other at that time. "lam sure," he says, "that if the president acts upon the recommendation of the bondsmen and what has beoL sent from the officers, the interests of the government will be secure and the public generally will be satisfied. Words are not sufficient to convey to yourself and the president the pride I feel for the confidence thus far displayed in me in connection with the vacancy. I shall endeavor in my future action to continue to merit the good wishes of the president, and you will please convey to him my most hearty thanks for his kindness and confidence. Now that poor Ford is dead and gone, I can tell you truly that there are but few men on earth who can fill his place. I would like to telegraph and write you more confidentially, but as the interests of the government will be fully protected in your hands, I will say nothing further on the collectorship at present." Closing with a reference again to Ford, he subscribes himself, "lam, under all circumstances, your friend, etc., John A. Joyce." Now, gentlemen of the jury, unless since these investigations began human nature has changed itself ; unless the whole cur- rent of human affairs has been reversed ; unless human motives and the methods in which they express themselves have been abso- 438 MODERN JURY TRIALS. lutely revolutionized, it is utterly impossible that on the day that letter was dated and written and received, Gen. Babcock held to John A. Joyce the relation of one conspirator to another. Why, the entire purpose, object, scope and intent of the letter is to impress upon its recipients the idea that he (Joyce) is not engaged in any scheme to defraud the revenues, but that he is an honest, faithful, vigilant officer, in whom, by the president and his private secretary, the largest measure of confidence can with entire safety be reposed. In the presence of these facts — which are in this record, gentlemen of the jury, and which cannot be removed from it — I denounce the charge there made against this defendant as participating in the appointment of Maguire for any guilty pur' pose as wicked and cruel to the last degree. In the presence of these facts, of these dumb and boisterous letters and telegrams, which yet speak trumpet tones, I would, before I would utter, as a juror or a citizen, a verdict of guilty to be adduced from them, tear my heart from my bosom and see it lie quivering before me. I know, gentlemen of the jury, that you possess the physical power to do certain things, but you have not got the power — and if you had you would not undertake to exercise it — to adduce guilt from that series of dispatches. Why, gentlemen of the jury, what a tremendous price you would have to pay to reach such a con- clusion as that. A broken pledge, a violated oath, an outraged conscience would be the price which you must pay for such a ver- dict on these facts ; and, leaving this jury-box, as you will at the conclusion of this investigation, if you say that they mean guilt, that conscience, which you always carry with you, would pursue you like an unrelenting Nemesis, to the last days that you live. It would dog your footsteps like a shadow, and you could never shake it off, and into your very souls would such a crime burn, and burn, and burn, as if a blazing iron had been plunged into it. You can reach no conclusion of guilt from that series of dispatches, and go home to your homes and look your wives and your children in the face. You cannot go out among men and carry a sense of human- ity with you if you reach a conclusion of guilt from these papers that I have read to you. Why, rather than do that, you had better take your farms and your houses and sink them deeper than ever plum- met sounded. If you do it, go back to the fields that you have left, to the children that look to you for an example in the future, and say to them: " Here I come; here I am; soul, conscience, honor, all gone, because Dyer and Broadhead asked me to let them have them for a while." Gentlemen of the jury, you can make of these facts no such mistake as that. There they are. They were BAI3C0CK CONSPIRACY CASE. 439 planted in the earth when the cirumstances occurred, and they will remain there forever. The waves of party passion may beat and surge against them, but they will resist them like the eternal rocks that bound and hedge in the sea. Is it not better, infinitely better, and are not our hearts all lifted up and exalted, when, getting into the smoke and fog and vapors of this charge, we pour the glorious sunshine, coming straight from the throne of the Almighty, into it, and they are dispelled, and we breathe the pure, clear atmosphere of heaven again ? Coming from these calumnies and slanders with which the public ear has been deafened for these long and dreadful months that have passed, it seems like coming out of the close and prisoned walls of a dungeon, where pestilence reigns, holding our faces and our breasts out, and letting the clear breezes from the hill-tops blow the blessings of the Almighty into the face and soul. Isn't it splendid, after all, lifting ourselves away above these little prejudices which have environed us ? Isn't it grand to say, " Thank God ! Republican, Liberal and Democrat alike, the great names of our history are dear to us alike; it is a delight, the like of which we have never before experienced; it is a glowing delight, heavenly almost in the joy which it gives in that what was dark as guilt, we find innocence so perfect and complete that it is almost radiant in its character. I cannot, gentlemen of the jury, discuss these questions without feeling as if I were lifted away above myself, as if there were an inspiration raining down upon me and upon you. If there is anything that makes a man noble among men, that demonstrates the fact that there are things about us and in our nature, which are divine, it is that blessed sense of eternal justice which prefers to believe in innocence rather than, with a satanic malignity, to believe in guilt. If your honors please, it distresses me very much to be compelled to ask further favors from this court, but I feel as if I could hardly proceed another ten minutes. The closing words were extremely touching and pathetic, as the speaker, with husky voice and magnetic power, pictured the family scene at Washington; his eyes beaming with the fire of earnest conviction; his frail form trembling with emotion; the court-room hushed to a painful silence: "He is not guilty, gentlemen; he is not guilty. I feel an inspiration settling in this court-room, stretching away as if to bear the glad news to his devoted family, who, in his humble home where an anxious wife, now surrounded by her little children, are kneeling, watching, praying, looking for 440 MODERN JURY TRIALS his deliverance and joyous return to the capital of his country he has served so long, so faithfully, and so well." aegument of judge poetee. If it Please the Court: Gentlemen of the Jury: We meet as strangers; but in the course of two weeks in the discharge of our respective duties, and the kindness and patience, the marked intelligence with which you have listened to the evidence and arguments in this case, make us all feel now that we are not before strangers) but friends. We feel that we are not before a jury who regard us with prejudice or unkindness. We believe that if the evidence had been such as to lead you to a conclusion of guilt, it would have been with sadness and pain that you would have pro- nounced a verdict that blasts this young man's name and character. And when we find that the evidence, in the case when fully dis- closed on both sides, leads only to a conclusion of innocence, we feel that you will rejoice in the opportunity of pronouncing by your verdict the vindication which is due to his innocence and integrity. The friendship and confidence with which, in the past, Gen. Bab- cock has honored me led him to select me as one of his defenders. I recommended him in my place to substitute one of the members of your own bar — a gentleman of national reputation and far my superior in abilit3 r , but the defendant very naturally felt that on this trial, upon which his all depended, he wished to be represented by the friends who knew him and trusted him, rather than by strangers who judged him only by the multitudinous calumnies of the hour. Having, as I have and have had from my first know- ledge of the facts in this case, the most absolute conviction of his innocence, I feel grateful to him that I am privileged to stand before you as his advocate. I am grateful for the fact, of which, whatever I might have thought before I reached here, I am now convinced that he stands before a jury — some his political associates, some the representatives of other political parties and antecedents, but one and all just men, who love truth and will vindicate his innocence. The connection of Gen. Babcock with the public service, and the friendship of Gen. Grant have given him a prominence which he earned by merit and never sought. It has been always his pride, as it is to-day, that he is the son of an American yeoman, and no such man stands in fear of injustice before a jury of the farmers of BABCOCK CONSPIRACY CASE. 441 Missouri. If the fact of his connection with President Grant and the calumnies of the newspaper press causes his case to be pre- judged by those who did not know him, the developments of this trial have reversed public opinion here, and he receives from the leading citizens of St. Louis, without distinction of party, the assurance of their earnest sympathy, and they strengthen our hands by their hearty God-speed upon every hand. Let me, for myself and my associates, express our grateful thanks, and our cordial and sincere acknowledgments to the leading counsel for the prosecution for their manly and liberal courtesy to the advocates charged with the defense of the stranger, and our appreciation of the eminent and masterly ability with which they have conducted this prosecution, although in a spirit which, in their mistaken zeal, would lead them to trample an innocent man into the grave. They have tried the case, however, according to their own intent, fairly, but in our judgment, with a bitterness toward the defendant per- sonally such as I never saw before in the conduct of a state prose- cution. It is attributable to their earnest zeal, and to their avowed hostility to President Grant. They do not affect to conceal it. They evidently feel that every stab they give to this defendant is a thrust through him at the president, with whom, for some cause, they seem to be offended. Why they should strike at Gen. Grant we do not know, unless they think his sworn testimony lies in the path between these two eminent gentlemen and a new professional victory. So it was with Andrew Johnson, who preceded Grant. He was a president without a party. He had been elevated to that office against the voice and the vote of the Democratic party, but when a time came that, in the interests of peace, conciliation and harmony, exercising his best judgment, right or wrong, he separated himself from his political friends, they turned upon him with the charge of falsehood and of treachery, and he stood alone, a great commander without an army, a president without a party. Foes to his right, to his left, in his front, in his rear, and each armed with javelins, thrusting at his honor and his life. The news- papers condemned him. Not content with that condemnation, leading members of the house of representatives caused articles of impeachment to be preferred, and these were tried before the highest judicial tribunal that ever was convened on the American continent. The ablest men in the house conducted the impeach- ment as managers of the prosecution, but not with the bitterness with which this prosecution has been conducted as against this defendant. They were earnest, they were zealous, they were able. They did their utmost to secure his conviction. The)* were men 442 MODERN JURY TRIALS. the like of wbom for power and ability has rarely appeared in any tribunal on earth. But he was tried by a tribunal over which Chief Justice Chase presided, and where the jury who were to pronounce the verdict were the senators of the American states. Those senators were not his political or his personal friends. A large majority of them were his political adversaries, driven to indignation by a supposed betrayal of trust reposed in him by the party who elevated him to power. It embraced many bitter per- sonal enemies. But, gentlemen, the case went to them upon the evi- dence. The politicians ceased to be such. The senators became sworn jurors. They determined the case not upon antecedent pre- judice, but upon the evidence of their honest convictions, and Andrew Johnson was acquitted. The newspaper judgment was reversed, and what has been the sequel ? After the expiration of President Johnson's term, Tennessee returned him as a senator, to the very capitol in which he had been arraigned as a criminal. When he died — and the memory of that event is still fresh in our recol- lections—in that very capitol his accusers became his eulogists, and one of the greatest statesmen of the country, who in high party times had voted as a senator for President Johnson's convic- tion, stood, but a few months since, in his place, in the same senate ah amber where he cast his vote, and nobly and honorably pro- claimed, not only to his peers in that body, but to the country and to the world, that in his present judgment Andrew Johnson, against whom he then cast his vote, lived and died an honest man. Allow me, gentlemen, to recall your attention to some of the leading and undisputed facts to which I had occasion to invite the attention of the court on the preliminary argument, and which in every stage of the case must be constantly borne in mind, in order to reach a safe and just conclusion. I shall recur to them only briefly (for it may well be that, although the argument was addressed to the court, you may recall its general bearings) to bring back, by a few catch words, the leading ideas then suggested with a view to the further progress of the argument. We have, then, the anomalous case of a conspiracy sustained by no evidence that the defendant ever met the conspirators — that he ever knew of their meeting — that he ever entered into an agree- ment with them, or that he ever knew of any agreement they had made with each other. Sustained by no proof that he ever bar- gained for or ever received a share of the plunder, and by no proof that he ever, orally or in writing, admitted any connection with BABCOCK CONSPIRACY CASE. 443 the conspiracy, or that any one, either orally or in writing, com- municated to him the fact of its existence. Neither of the counsel makes the direct assertion; neither of them believes it to be true; neither of them will say that they believe it, but they pay to you, gentlemen, the poor compliment of supposing that such inuendoes may appeal to the political prejudice of some juror in your midst. It is unworthy of them. I do not reproach them of intentional wrong, but I submit to them whether it is a professional device which even in their zeal to blast the good name of this defendant is worthy of Jheir position and reputation ? They were driven to this expedient by the necessities of the scuttled and sinking prosecution. Gentlemen, if Gen. Grant was not a party to this conspiracy, if he was not privy to its existence, you see — as the prosecution see — how utterly improbable it is that Gen. Babcock was one of the confederates. No one will charge him with infidel- ity to his chief. He has held a position in the confidence of the President which, with his conceded and eminent ability, if he had aspired to distinction in civil life, would have commanded for him almost any other office, at home or abroad, in the gift of the Presi- dent. If he had been under the curse of cupidity and avarice, he could have turned his $G,000 a year as an officer in the army into a salary in civil life which would have enriched him in a single year. What would be the measure of Gen. Babcock's infamy, if in his relations to the President, he had been capable of betraying him ? What would be the depth of his degradation if, after being educa- ted at the expense of his country at West Point, after being hon- ored in peace and in war in the public service, still holding his commission in the army, he had been capable of selling the govern- ment to thieves, and dividing with them the price of his own degradation and crime? Gentlemen, in the light of the evidence the prosecuting attorney cannot believe it. No honest man, after reading this testimony, can believe it. It is conceded that there is no direct evidence of guilt. They tell us, however, that conspiracy is a secret crime, and therefore you cannot expect clear proof of guilt. Gentlemen, is that a reason for convicting whoever happens to be accused, without proof of his guilt? Murder is usually, in its worst form, a secret crime; but do you, therefore, hang whoever happens to be accused, without clear evidence of the crime ? In this case, if guilt existed, direct proof is accessible, though it is not produced. The prosecution have each of the actual conspirators in an unyielding vise, and a single turn of the screw can compel each man to speak whatever he knows. If the charge were true, they 444 MODERN JURY TRIALS. had direct proof at hand. But it is not true, and therefore the direct proof fails. In each of the other cases, bear in mind, gen- tlemen, they had direct proof. In the case of Joyce it was oral and in writing, positive and overwhelming. In order to justify the inference of legal guilt from circumstan- tial evidence, the existence of the inculpatory facts must be abso- lutely incompatible with the innocence of the accused, and incapa- ble of explanation upon any other reasonable hypothesis than that of his guilt. Every other possible supposition by which the facts may be explained consistent with the hypothesis of innocence must be rig- orously examined and successfully eliminated, and only when no other supposition will reasonably account for all the conditions of the case, can the conclusion of guilt be legitimately adopted. In strict conformity with these sound principles of reasoning and inference, Lord Chief Baron McDonald said that the nature of cir- cumstantial evidence was this: That the jury must be satisfied that there is no rational mode of accounting for the circumstances except upon the supposition that the prisoner be guilty. And Mr. Baron Alderson, in another case, with more complete exactness, said, that in order to enable the jury to bring in a verdict of guilty it was necessary not only that it should be a rational conviction, but that it should be the only rational conviction which those cir- cumstances would enable them to draw. The other is merely referring to the language of Chief Justice Denio, which was in my last citation at page 145, in 32 New York, illustrating this doctrine of presumption from circumstances. It was a question of arson: "Suppose the presumption that the pris- oner did each of these acts was equally strong, the proof as to one would not tend to prove his criminality in regard to the other. "We cannot presume that he burned the barn because we presume that he intended to burn the house. One presumption will not aid the other. The infirmity which attaches to the one equally attaches to the other. The logic upon which circumstantial evidence is based is this: We know from our experience that certain things are usually concomitants of each other. In seeking to establish the existence of one, where the direct proof is insufficient or uncer- tain, we prove the certain existence of a correlative fact, and then establish, with more or less certainty, according to the nature of the case, the reality of the principal fact. But the reasoning is a perfect fallacy, if the defect of proof which renders it necessary to call for the aid of the collateral circumstances equally attaches to BABCOCK CONSPIRACY CASE. 445 the collateral circumstances. It is like the blind leading the blind." Gentlemen, it happens to-day that the man who is on trial is a stranger to you. But are we not aware of the vicissitudes of life ? How little he dreamed one short year ago that he was to be arraigned as a criminal, a conspirator and a thief, before a jury of those upon whose faces he had never looked ! How little Andrew Johnson dreamed when he received the proud token of the confidence of the American people which made him, in the course of events, the suc- cessor of President Lincoln, that within the short time of his administration he was to be arraigned at a criminal bar, before a tribunal more august than had ever before assembled in this coun- try ! And how little do we know what the future has iu store for us and for our children ! The merit of the constitution and the laws is this — that no man's liberty can be taken away; no man's character can be blasted for crime, except upon the verdict of twelve men, and upon evidence so clear and conclusive that it shall override all presumptions of innocence and to compel a jury to unite with one accord in pro- claiming that the evidence establishes guilt and crime. akguhent of col. d. p. dtbe. If the Cotjet Please: Gentlemen of the Jury — I congratulate you upon the near approach of the end of this most important trial. You have given to it, gentlemen, for more than two weeks, your deliberate, undi- vided, faithful attention. Having been assigned to close the argu- ment for the government in this case, I feel a weight of responsi- bility resting upon my shoulders that I never felt before. I stand here as the representative of the government, trying to enforce against all, whether high or low, rich or poor, the laws of the country. I feel that through me, humble as I confess I am, as unimportant as I always have been, I feel that through me to-day must speak the people of this country, who are the nation, and yourselves. And in approaching the discharge of duties so responsible as these, I ask your kind indulgence, as I have asked the Father of us all to sustain and support me while I undertake to represent, in my feeble way, the interests so important that have been com- mitted to my charge. It is a sacred duty that I have to perform. I would be unfaithful to myself ; I would be unfaithful to the gov- 446 MODERN JURY TRIALS. ernment whose officer I am ; I would be unfaithful to the dearest ties of my life if in this presence I failed to do my whole duty. Nine months ago I entered upon the discharge of the duties that lam now discharging. I came here, finding seizures of property worth thousands of dollars, which had been made by the public officers. In all of that investigation, from that time to this, I can lay my hand upon my heart, and, in the presence of my Maker, say that I have never had any other motive in view than the faith- ful and upright discharge of my duties as a public officer. I have never during that time sought to implicate any innocent man. Nor have I during that time sought to shield any man who was guilty. But, as long as I occupy this position, as my Maker is my helper, so long will I undertake to present fairly and honestly to the jury that try these cases the evidence that has been obtained and presented against them. You have heard a most remarkable case. You have heard as well a most remarkable defense. For three days have you listened and listened to the arguments of distinguished gentlemen who have presented this case in a most able manner to your considera- tion. I feel in their presence, and in the presence of this court, my own insignificance as compared with theirs. When I find the defendant arraigned for trial in this court-room defended by coun- sel of world-wide reputation, I feel doubtful of the ability of the government to make plain to you a case that is so plain to us. And that defense — able, ingenious and strong as it has been — has struck you, as common, plain, sensible men, who desire only to find the truth in this case, as a most remarkable one. The distinguished gentleman who argued the case on yesterday started out in his argument by saying that this was a prosecution against the president of the United States, and that there was some personal hostility upon the part of the prosecution toward the president of the United States, and that he knew of no reason for it except that the president's deposition stood in the way of another trial at this bar. The president's deposition is before this jury. He has been examined as any other witness has been exam- ined, and, in commenting upon his testimony, I will comment upon it with the same independence as I would comment upon the testimony of any other witness that is introduced into this court. But when the gentleman, for a purpose, seeks to put the prosecu- tion in the attitude, as his language would seem to imply — that the president of the United States was on trial, and not the defendant, I do not intend that the red flag that the gentleman thus flaunts in my face shall be taken up and followed to battle., BABCOCK CONSPIRACY CASE. 447 As well might be say that the president of the United States was on his trial when Gen. McDonald was on trial. As well might he say that the president of the United States was on trial when every officer in this city was on trial, as to say that the president of the United States is on trial because Gen. Babcock is on trial. Each of them held official position under the government. Each of them held official position under the one or the other branches of the government, and yet he comes and says to this jury that for some reason, and he supposes the reason to be that the presi- dent's deposition stands in the way of this prosecution ; that that is why during all this time there have been some unfriendly feel- ings towards the president of the United States. And for the pur- pose, possibly, of arousing in the mind of any man on that jury who happens to be a republican, and for the purpose of arousing in all your minds just indignation against an assault upon the president of the United States, he says that for some reason or other this prosecution has shown, during this trial, an animosity against the president of the United States. I do not intend that the adroitness of the gentleman shall put me in the attitude of an assault upon the administration, and by twist- ing the president of the United States to the front before this jury to hide and shield their client behind the back of the president of the United States. I intend to bring him from behind the back of the president of the United States, and by the president's depo- sition and by the testimony in this case, I intend that he shall stand upon his own merits, and not undertake to wring from the hands of this jury a verdict by saying that it must necessarily involve the president of the United States. What prosecuting officer has charged it here? Who, during this entire trial, has said anything of that kind? I am sure Mr. Broadhead did not do it. I am quite sure in my opening speech to the jury I have not done it; and during this entire trial not one word in examination in chief or cross-examination has been spoken which would show it to the mind of a single man. And yet for one hour he undertakes to defend the president of the United States whose good name he says is involved in this controversy. The president of the United States, sensible as these gentlemen deem him to be, and sensible as they say he is, will not thank counsel for raising an issue in the trial of an offender against the laws of the country by bringing him forward and saying that your verdict must necessarily involve him. That is the attitude that I am said as an officer of this govern- ment to occupy before you. He refers to these things, and I have 448 MODERN JURY TRIALS. heard it, too, by rumor, by small men who never yet arose to the magnitude of an honest, upright discharge of a public duty. I have heard that ; but when it comes in the shape as it has come to this jury by the representative of the defendant, it then becomes my duty to speak plainly of the matter, as I shall speak of it* What motive should actuate me in a charge of that sort ? Is there any political reason why I should do it ? There is not a man upon that jury, nor one within the sound of my voice, that does not know, as far as political opinions are concerned, that my own opinion has been with the Republican party in this country. Why should I assault General Grant? I voted for him as the nominee of the Republican party in both national conventions that nomi- nated him; I voted for him at the polls at both elections at which he was a candidate ; and what motive or political end is there in saying I have any enmity against President Grant, and that I want to gratify it by the conviction of General Baboock ? Is there anything personal in the matter? There cannot be anything per- sonal in it, because nine months ago with his own hand he signed a commission that authorizes me to speak here to-day. Then, I say, as far as concerns the motive that the gentleman impugns to the prosecution in this case, it utterly fails; there is nothing of that. But, sir, I do not intend in the examination of this case that because General Babcock is the private secretary of the president of the United States that he shall escape because he is the private secre- tary of the president. I would try him as I would try Basset. I would try him as I would try Everest, or McFall, or McDonald, or Joyce. He knows, this defendant knows, and the gentleman knows, that as far as any personal hostility to the defendant is concerned, that that does not lurk within my bosom. He knows that, because until October last I never spoke to the defendant. But in the discharge of my duties, gentlemen, in the honest, upright, faithful discharge of my duties before the grand jury when the testimony was disclosed and men summoned from the body of this district to sit in the grand jury room and pass upon these questions, saw that testimony, what must I do? Must I, by virtue of my position, smother the testimony, and fail to bring this man to punishment at the bar of this court? Must I, because I was a Republican, and he was a Republican, and the secretary of a Republican president who was elected under my vote — must I stand and shield that man by virtue of my position? If I had done it, gentlemen, I never could have looked my children in the face, nor would I have been able to look the honest people of this country in the face any more. * * * * BABCOCK CONSPIRACY CASE. 449 These gentlemen are terribly afraid of a public clamor. They talk about public sentiment, and talk about it all blowing over in a minute — it's all right. You have got nothing to do with public sentiment. Yon have got nothing to do with the opinions of the outside world. You have got nothing to do with the newspapers. And yet the gentleman makes an assault upon newspapers from one end of the land to the other, because the newspapers, he says, have prejudged this case, and done this defendant great wrong. Why all of that, gentlemen ? Why all of that kind of talk to this jury ? It is a most extraordinary defense that Judge Porter presents to this jury. He starts out here for an hour with his applause of Gen. Grant, and says he is a most remarkable man. Suppose we all admit it. Suppose we do admit it. He defends Gen. Grant here for an hour as if Gen. Grant was on trial. He then drops Gen. Grant and brings up before this jury and tries over again Andy Johnson, who is dead and gone long ago. [Laughter.] He undertakes to strike the Republicans upon this jury. ******** Now for the story; and I tell it with this preface, in order that my motives in telling it may not be misconstrued. It reminds me of an anecdote I heard a long time ago of a most celebrated physi- cian living in a neighborhood where he was called to see a lady in her confinement, and on the day after he met a neighbor, who says to him: "Doctor, how is your patient?" " Well," the doctor says, "the child is dead, and the mother will die, but by the aid of the Lord I think I can save the old man." NowJ here in this particular instance, I can only say that the gentleman undertaking to defend the president when there was no accusation against him, believes that the child is dead, that the old woman will die, but by a little help he can save the old man. Against what? That has been the whole defense here, to make you believe, and to impress upon your minds, that the president of the United States was upon trial, and if his speech had any pur- pose in the world it was to save the president from a charge that the prosecution has not made against him, And yet that is the way in which this case is presented to the jury. Then here is my friend from Chicago. I was particularly amused at his speech. He is a most eloquent gentleman. He is a man of great adroitness and ability. He examines a witness very carefully and ably. He makes a speech that is just as characteristic of him as his examination of a witness is charac- teristic of him. He comes here from Chicago, and the first thing 29 450 MODERN JURY TRIALS. that he does after he gets here is to convert this jury into steam engines — each of them. He says to the jury, " If J ou dare to convict Gen. Babcock, your consciences, like atrip-hammer, will beat against your breasts for all time to come, and will be as a red-hot iron run through your consciences, that will burn '. burn ! ! burn ! ! ! — and that you will never get rid of." And thus you are all converted into regular engines, for you have got in your con- sciences something that will follow you to your grave, and this fearful iron that he brings here— this terrible trip-hammer that must beat against your breasts and that must follow you always ! Appeals have been made in various ways, after talking about public sentiment and newspapers; appeals have been made to the sympathy of the jury; and here my friend Mr. Storrs, eloquent as he is, undertakes to get to the gate Fitzroy and his man McGill, and he says that when he gets there, St. Peter, the good watchman, -will say to Fitzroy, "Stand back," to McGill, "Step in." Now I ■could appreciate that from a gentleman coming from any other place than Chicago, but the idea that a man living in Chicago should know anything about the gate or have any idea about it ! It reminds me of some fellow that died in Chicago years ago, and lie went and applied for admission, and the gatekeeper says: •" Where are you from ? " " Chicago." " Ah ! " he says, "I guess you are mistaken; there is no such, place as Chicago." "Whj, yes," says the man; "give me a map of the United States and I can show you that there is such a place as Chicago." And sure enough he pointed out Chicago on the lake and showed it to him. " Well," he says, "I think that that is at least evidence tending to show that there is such a place as Chicago, and there being evi- dence tending to show that there is such a place as Chicago, I guess we will admit you; but, my friend, you are the first man that ever applied for admission from the city of Chicago." But here he is. He gets up and delivers an address, and gives you most beautiful pictures about what is to happen there in that great day when Fitzroy and McGill and all of them stand there, and he says this poor, lame, halting postman will bring up the ■•ear. Well, he ought to start now, if he is a little lame, and try and get there. The gentleman has spoken beautifully and feelingly of Gen. Babcock and his family. These are precincts that are too sacred. BABCOCK CONSPIRACY CASE. 451 for me to enter. The precincts of the home of any man in this' land — whether he be a defendant or not — are too sacred for me to enter, and I will not attempt it; but I can only remind these gen- tlemen, when they are making these Reeling remarks in reference to the home and family of the defendant, that around the hearth- stone of poor Fitzroy — a man who is denounced as a thief and per- jurer, a man who is denounced here before this court as unworthy of belief — that there may be around his hearth-stone little ones that are as dear to him as yours are to you, and that they may be kneeling at their mother's knee, as the defendant's children have knelt. Oh, how unkind it is for you to stand here before this jury and assault a man like him, when his testimony does not implicate in the slightest degree this defendant ! How hard and unkind it is for you to refer to this man, whose testimony is not relied upon in this case to convict Gen. Babcock, but whose testimony alone goes to show the extent and scope of this conspiracy. Gentlemen, it is hard. There are those associations that are around a man's own hearth- stone, that even a man in his distress does not want to say anything about. But when these gentlemen appeal in this way to your sym- pathies, may I not ask you to look over all of these men that have come here — all of them young men — nearly every man who has been upon this witness-stand, a man hardly yet thirty-five; men, wbo, with bright hopes and prospects before them, and with bright promises held out before them, have been, by testimony that could not be disputed, forced to come into this court-house and hold up their hands and say, "We plead guilty to these charges ! " But in the presence of all this, must we hesitate to do our duty ? In the presence of this, must we stop and debate in our own minds as to whether we must execute the laws ? Here we find millions and millions of the public treasure that has been stolen and taken away; and while the gentleman speaks for his client I speak for mine, and that client is the people, from one end of the land to the other. I speak for the rich man, with his thousands; I speak for the miner, in his dark home in the bowels of the earth; I speak for the thousands and thousands of poor in this land, who, as they kneel down to say their prayers, look only to Ilim when they say, "Give us this day our daily bread." It is the people of this land that are clamoring for the execution of the law. It is the people who after all these developments have been made, see the extent of this conspiracy, and through you ask that the laws of this land be enforced, and that public honor be vindicated, and when the gen- tleman says that forty millions of people are looking to you to-day, 452 MODERN JURY TRIALS. and that all of the cities of Europe are looking here, it is true. Because, gentlemen, if the American people, American juries and American courts are not able to protect themselves against these wrongs that have been done to the public treasury, then I say your nation is a myth — gone. Acquitted. EATMOND-HILL CASE. on, D. 0., April, 1880. Belva A. Lockwood, the "Portia of American bar," the first female lawyer ever admitted to practice in the United States Supreme Court, has since acquired considerable notoriety and a lucrative practice. She is in the prime of middle life, finely formed, of easy manners, eloquent delivery and full of a woman's sense of justice and hot-tempered eloquence. In her absence, the famous Hill Case came up on motion. Without giving any notice of his intended action, defendant's counsel moved to strike the case from the docket, and at the time took occasion to press severe strictures upon the action of the plaintiff and her purported attor- ney, pronouncing the whole thing a conspiracy and blackmailing business. His honor overruled the motion and promised to accord Mrs. Lockwood a hearing on Saturday. She came into the court on that morning, and expecting a lively time, the chamber was crowded with attorneys and spectators. Her first step was to ask for judg- ment on the ground that the defendant had failed to enter any plea in the case. Mr. Ben Davenport, who appears with Mr. Merrick, had on that morning filed a demurrer to the bill as bad in substance and improvidently brought, and rising, said : " May it please the court — " Mrs. Lockwood — " You are not in this case." Mr. Davenport — " That makes no difference to you; but I am." Mrs. Lockwooh — "You are not of record.'' Mr. Davenport — " I only wish to say that I protest against her speaking, unless it is to the motion." Mrs. Lockwood — "I have a right to be heard in my own vindi- cation." RAYMOND-HILL CASE. 453 His Honor — "Well, Mrs. Lockwood, if you can conclude in five minutes, you can proceed." Mrs. Lockwood then proceeded, and spoke as follows: " If your honor please, for the first time in the seven years of my practice before this court, I rise to a question of privilege. I come to ask leave to defend myself against the foul aspersions cast upon me on Wednesday, in your presence and in my absence, and in the presence of these gentlemen, by a hitherto "honored member of this bar. I refer to the motion made to strike from the docket of this court the suit of Raymond v. Sill, No. 21,680 — a suit in which no pleadings have ever been filed, no replication or issue joined, and which has never been calendered — a suit, your honor, in which there has never been an attorney of record for the defense, until the very moment when this learned and honorable attorney comes into court and, with the sublime simplicity of a child, asks your honor to dismiss a suit in which, even yet, he has no part or lot. He conies in here without notice to the attorney of record, tells your honor he does not deem her worthy of notice (he may here- after), declines to give her notice, and then, like a brave and valiant knight, proceeds not only to traduce her behind her back, but to state things, without substantiation, that are unmitigatedly and unqualifiedly false. "This learned attorney states that he makes this motion because I have filed this cause without the authority of my client, while he holds in his hands the papers indorsed by her signature, which he claims to know, and attested by her solemn oath, but he neglects to tell, or to show, to the court by what authority he comes, for neither plea, nor answer, nor demurrer, nor power of attorney, signed by his client, attest his authority in this case. He claims to be the expounder of law, but ignores its plainest precepts; an honored member of the bar, but forgets his honor when he deals with a woman. And this is not the first instance on the records of this court in which this attorney has been guilty of unprofessional conduct. He tells this court, in my absence (he dared not repeat it in my presence) that he has several affidavits in ' his possession bearing upon the general matter out of which this case grows, but that as they do not directly affect the merits of the question as to the attorney's authority from the plaintiff to institute it, he does not deem it necessary to file them in support of this his unprece- dented motion.' Your honor, ten thousand affidavits like the one the man Small filed herein, guilty of subornation of perjury, as shown, would have as little effect upon the status of this case as the opinion of a condemned man on the statute under which he is 454 MODERN JURY TRIALS. sentenced. He says that there may be occasion hereafter to bring them forward, intimating that he now holds them in terrorem over our defenseless heads to hold us in subjection and to chastise us with hereafter. Is this professional ? Is this honorable ? Is this the practice of the attorneys of this bar? But mark ! He proceeds as follows: 'These affidavits establish conclusively, and to my entire satisfaction, that this case is one of the manifestations of a conspiracy against the defendant organized by a combination of some of the lowest and most debased of people, uniting with some who are not in appearance so degraded; but, altogether, they con- stitute a small band of the lowest and basest and infamous and prominent.' What does he mean and whom does he mean by these insinuations ? Has he gone quite mad ? Has his fear of me and of my presence magnified me into an army — into a whole rebellion boiled down ? What does the learned attorney mean by 'this case being one of the. manifestations of a conspiracy'? We are not in a spiritual court. If, as he charges, I am a conspirator to ruin the moral character of the distinguished gentleman who is the defend- ant, and to impair his political influence in his senatorial capacity in regard to matters now pending before the councils of the nation, then, your honor, I am guilty of high treason, the highest crime known to the state; and if this attorney had believed his own words, be would have caused my arrest before I left this court- room yesterday, and it would have been his duty as a loyal citizen to have done so. Aye ! he would have summoned me to this court room to defend myself against so gross a charge. Aye, sir ! these words were not intended for the furtherance of justice, not for honorable debate, but to awaken prejudice and suspicion, and to influence ex parte the action of this court. And I desire to say here that I have no animosity against the defendant in this cause, and I could not, if he had one, injm-e his moral character. Character, your honor, inheres in the individual; it is the man — qualities impressed by nature, to which I could not add or detract. " Who, then, are these dangerous conspirators ? Myself, and this hunted and unfortunate woman ? This babe without a father ? Where are these lowest and most debased of people ? If he refers to me, your honor, I challenge him to produce my record; if he refers to my client, I indignantly deny the charge, and throw back in his teeth the base calumnies that have been perpetrated against her. 'Uniting with some,' he goes on to state, ' who are not so degraded, but altogether they constitute a small band of the lowest and basest and the infamous and prominent.' A small band indeed, your honor — two weak women, magnified not only into BAYMOND-HILL CASE. 455 state conspirators, but into monsters, the one hungering for bread, the other pursuing her daily avocations. And just here: I have never at any time consulted any person except my client about the bringing or the prosecuting of this suit with the exceptions of Benjamin H. Hill, jr., and James Banks. If these are the con- spirators to whom this learned attorney refers, then to a certain extent I agree with him, and pause to admit that, after repeated interviews, they did induce this poor woman to go back on her word, after threatening me with arrest for conspiracy and black- mail, if I dared to bring this suit. Since my admission to the bar of this court, and the taking of its oath of office, I have only done my duty to it and to my clients. My professional honor is worth more to me than money, and I allow no man to assail it with impunity, even though he be my senior at the bar. I have not yet sunk so low, nor have been so devoid of business as to bring a pauper suit against the wishes of my client; nor have I been so poor and abject as to levy blackmail against a United States sena- tor for the purpose of extorting from him a few paltry dollars. My crime has been that I have sued a senator as I would have sued any other man; that I have asked him to remember the ties of nature as I would have asked any other man; that I have asked him to keep his pledges as any honorable man would have done; aye, that I have befriended this unfortunate woman, who, like Banquo's ghost, will not down. I am charged with conspiring to impair the political influence of this distinguished defendant. Your honor, it was not until this learned attorney had thus deliv- ered himself that I knew that he had any political influence. I do not yet know, your honor, what the important matters now pend- ing before the councils of the nation are in which this great sena- torial brain is busied. I am innocent of political intrigue or of political aspirations other than the one great effort which has been a part of my life-work, to place my sister woman on an equality with man. I demand, your honor, as our right that the affidavits alluded to, which this learned attorney says 'show the object of this conspiracy,' be produced. It is our right that we may be able to meet fact with fact, and falsehood with refutation. As it is, a hundred innocent people are suffering under the imputation of con- spiring with me. Are they black or white, men or women, demo- crats or republicans? and what have I to gain, and what is to be my reward ? Is it not just possible, and more than probable, that this monster conspiracy had its inception and its origin in the fer- tile brain of this attorney and his coadjutors ? "And I desire to say here, your honor, that my connection with 456 MODERN JURY TRIALS. this case has been entirely honorable and above-board. I have had no collusion or consultation with any party or parties in regard to it. I have brought this suit precisely as I have done in similar cases, because I believed there was an occasion for it, and as I shall do again whenever I consider it my duty; and I challenge investi- gation into my motives or my action in this case. The parties who have raised the cry of libel and blackmail have resorted to it for the purpose of diverting the public mind from the real facts in the issue. Instead of making the issue against the plaintiff in this suit, there has been a determined effort to put me upon trial, and I believe that I have stood and am willing to stand the trial. What- ever weaknesses I may have, cowardice is not one of them nor dis- loyalty to my client another. I could not, therefore, allow this court to misunderstand my position. Whatever the outside world may think, can matter little to me — an humble, domestic woman; but what my friends think, and those with whom I come in daily contact, is vital both to my happiness and my pecuniary interests. I now ask your honor that this judgment, to which my client is entitled, be granted." ELEVATED RAILWAY CASE. Tried in the Superior Court of N. T., Jan., 1880. ARGUMENT BY BENJ. F. BUTLEE. The American bar are generally familiar with the pithy and pun- gent style, the singularly successful manner and wide reputation of Benj. P. Butler as an orator. His art is known as well on the frontier as in Congressional discussions and among the factory hands of his native town at Lowell. It is a pleasure to hear him at his best. It is a surprise to listen to his pathos and incisive expressions ; but his element of strength is the heroic — the whirl- wind of invective, the storm of passion, that brooks no defeat ; that, even after many failures to be governor of his state, only stimulates new energies and braver endeavors. Gen. Butler is a bold speaker. He is a brave speaker ; a strong, logical reasoner ; his words full of force are propelled with power and vehemence. He wins his cases by determined labor, by toil, and a name for winning them. He commands his juries; he demands large ver- ELEVATED RAILWAY CASE. 457 diets ; he inspires men by his magnetism. He asks and receives decided attention and excellent fees. Even so brief an extract as the following will give a glimpse of his strong and original style of composition. In it is power, pathos, ingenuity and strong thought, with very little waste of words; there is a real beauty of simplicity. The case about to be reported is where an injunction was sought by Mr. Caro to restrain the erection of an elevated railroad past his dwelling on Sixth avenue. New York, on the grounds ably set forth in the argument. There is a special feature of this address worthy of note. He does not " crook the pliant hinges of the knee" even to judges. He talks of his client's rights ; of his redress ; of his demands ; and denounces the foolish, fawning course of counsel. The passage of the scenes in the family sick chamber, with loved ones listening to catch the child's last words of life, the father " dealing out the potion drop by drop," is as graphic as the scenes of Macbeth. The pathos is touching. Gen. Butler's manner is somewhat labored and heavy, but the anxious interest follows him for hours, as the ponderous sentences follow each other in a long line of compact and almost irresistible logic to a conclusion, reasonable and extremely probable. His gestures are largely of the Websterian, heavy make, and all the way along he seems to be reaching out after an undiscovered thought, till one feels like saying " enough, enough," long before his conclusion is reached. In his famous phillipic on the Indianapolis editor, in 1872, there were times when over one hundred men, out of the ten thousand audience, stood upon their seats, with flashing eyes and hands striking together, with a hearty ring, shouting, " Hit him again !" " Hit him again ; d — -n him, hit him again !" " Give it to him ; give it to him !" Then, with that wonderful coolness, he would wave his broad hand, fanning like an eagle's wing, and hush the vast audience to silence. In his speech to two thousand fishermen on the sea coast, all in their working garb and intensely interested, he grew eloquent, witty and powerful, but no murmur of applause arose. He won- dered, but went on, hit after hit, and no response to the end. But when he closed, men, women and children shouted and applauded in the wildest manner. Surly-looking old fishermen would nudge each other, and repeat his jokes with a relish. It was not their custom to applaud while speaking. In the railway case he said: 458 MODERN JURY TRIALS. ) Mat it Please toue Honoes : At the close of the lawyer-like, close, and carefully put argu- ment of my learned associate yesterday, it seemed to me that there was nothing left for me to say. A pure, dry, bare question of law, interesting only from the importance of the principles involved, had been argued upon carefully collated authorities, adapted to the various aspects of the case. After such a reaper, there is but little left for the gleaner. But the course which the discussion took afterwards seems to render it necessary for me to call your honors' attention to certain matters which I believe to be fundamental, and which, for the first time in the course of forty years' practice, have I heard brought into dispute, and also to remove some of the impedimenta which have been thrown in the way of our receiving justice at the hands of the court, by the opposing counsel. Personally, if not wholly, a stranger to your honors, I cannot begin my argument as some of the arguments have been begun — • by a eulogy upon the court. I never pay compliments where none are needed. I am certain, from the course of this investigation, that I shall receive a patient, attentive and careful hearing, and that is all that my client can ask in the debate of the cause ; and I feel, notwithstanding the appeals that have been made to your honors, that, after the hearing, my client's cause will receive at your hands careful, patient, righteous investigation and judgment. ******** If that law provides, as we think it does do, in one or other of two forms of construction, that the respondent railroad shall pay for damages which they do by injury to citizens through a com- mission or otherwise, then the law is a constitutional one. If the statute does not so provide in some form, then the current of authority is so universal and so strong that there is left no ripple to show on the surface even, that such a law can be constitutional. We believe it to be constitutional. Every intendment should be made in favor of the law. It should not be so frittered, or, in the nervous language of Gibson, "filed" away as to render it uncon- stitutional. Therefore we admit that there is a constitutional law authorizing the defendants to build an elevated railroad upon the street in front of our dwelling, and that elevated road is to be built according to their will and pleasure as to manner. In that, the law provides no restriction whatever. It may be built on posts; it may be built on a solid structure to support its rails alone the street, one foot high, ten feet high, or one hundred feet high. ELEVATED RAILWAY CASE. 459 Therefore, there being no limitation to the will of the builders of the road, it seems to me that the law has left the question of reparation for injuries done to the citizen by the structure and operation of the road to be ascertained from the manner, as the extent of them must be determined by the manner of building, to be adjudicated by the proper judicial tribunals, which is one of the ways in which the law may provide that the constitutional protection of the rights of the citizen that private property shall not be taken for a public use, or appropriated without reasonable compensation, may be enforced. * * * * " If the land is rendered less valuable because it is more exposed to fire; or if access to it is rendered more difficult; or if the use of the remainder is more inconvenient by reason of the railroad ; or if its value is depreciated by the noise, smoke, or increased dangers caused by the use of the railroad — all these are to be included in the estimate of damages. Not that witnesses are to be called upon to estimate damages for each or any of them ; for though they enter into the estimates, the question is, what is the market value of the whole land without the railroad, and what is the market value of the remainder of the piece with the railroad ? Or, in other words, what is the value of the piece which is taken, and how much is the residue depreciated in its market value by the separation and the construction of the railroad ? which two sums added together is the amount of compensation to which the appellant in this case is entitled. I have no doubt that the increased risk by fire, if any, is properly included in this estimate." So, may it please your honors, the argument put with so much force, vigor, power, and earnestness, as to whether Mr. Caro is not obliged to smell the smoke and hear the noises of running trains, had all been decided years ago under the able and skillful guid- ance of my learned friend who made respondents' argument yes- terday, and the same principles have lately been reaffirmed. We come to another matter, which I approach with great diffi- dence and reluctance : I have been, all my professional life of forty years, except when I have been carried away in misspent time otherwheres, before courts of justice advocating, in my poor way, the rights of my clients. In the supreme court of the state, where I have most practiced, its seal is emblazoned over the seat of justice for an escutcheon, declaring the principles on which the court acts, always standing out from the wall before the advocate for his 460 MODERN JURY TRIALS. guidance, who ought to watch it as the mariner does his guiding star of the pole. * * * * Who and what are the judges of courts? They are the repre- sentatives of the law; the representatives, so far as human, erring nature can be, of eternal and impartial right. Such has been my teaching ; may it please your honors, such, I believe, the teaching of the books of law; such the lesson of the garnered wisdom of the common law for a thousand years. To put the judges as far as possible beyond all motive, in the mother country, from which we draw our laws, they were made independent of kings, to hold their places for life. It was their province, jus dicere non jus dare. To declare what is the law between party and party, and not to make the law, which was the duty of the king, parliament, and people. Imagine my surprise — I will use no words of characterization, for they fail to meet the occasion — when I heard your honors appealed to, as the "representatives of the people of the city of New York," to decide this case in their interests. Imagine what I, a stranger to you, felt when I heard a venerable lawyer, with my client's great interests hanging trembling in the balance of justice, appeal to you, not to give him justice, but to deny it to him. You were told to send him to some other court, or, as the phrase was, "if this [i. e., judgment given in his favor] must be done, let it be done by an alien hand," and this hand was pointed out by the remark that we had threatened to go to "some alien tribunal." That could only refer to the fact that we put in our complaint that this injury and wrong done us was in contraven- tion of the constitution of this state and the United States. After numerous citations of authorities, with elaborate comments upon each, he continued: And therefore we said that we invoked, and we mean to invoke, the protection of this provision, and that is why it is in our com- plaint ; and also for one of the very good reasons for so doing, that if anybody shall say that the word " taken " has so technical and "filed away" meaning as not to cover this species of our property, then we invoke the constitution of the United States that no state shall deprive us of any property without due process of law, we being citizens of the United States. May it please your honors — You have seen the ideal of Justice as her figure has been handed down to us in the dreams of the sculptors and philosophers of the olden time. She holds her evenly- balanced scales, and her eyes are bandaged. What for? That she ELEVATED RAILWAY CASE. 461 may see none of the consequences of declaring the right, the truth of the cause; and the legend which she bears upon her girdle is Mat justitia ruat caelum, "Let justice be done though the heavens fall." And yet the eyes of Justice, looking from the bench here, were invoked to look outside of the record — to look at the possible consequences of deciding right ! For what? To sway the judg- ment of the court in their administration of the law against the right of the poor and humble, in favor of the rich and powerful. God help us, when it comes that this may be argued in a court of justice in the most enlightened state in this Union, as well as the most powerful ! Again : Let me illustrate the effect of such appeals upon men's minds to give you an idea of 'how they bring contempt on the administration of the law. Your honors will not misunderstand anything I say, for if I thought such appeals could have any effect upon your honors I would fold up my papers and go away. To show, I say, what laymen think, my client came to me yesterday and said, " What do you think of my case V " I said if there were only five thousand dollars involved I would not argue it, it seems so plain. But as it is, God knows we must argue it. My duty to the court and myself made me stop there. If your honors can be influenced by such observations in your decision of this cause, of course you will write them out in your opinion, so that all the world may see the basis of judgment. If you could be influenced by such argument you should put it on record, so that we could understand that when the growth of the city of New York is in question, nobody has any rights of property in it. If it is not proper that such things should be written in a decision, the idea of doing which seems to excite a smile on every countenance, ought any argument to be addressed to the court that is not proper and right to be written in the decision, or opinion, in the cause, to influence which it is made ? I pass from this somewhat painful part of the argument. True, may it please your honors, the principles which we present here for our protection are as old as eternal justice. To borrow an illustration from a profession in which for awhile I misspent my time, and with which I was playfully and good-naturedly taunted yesterday, the profession of arms — it is true our arms are not new, bright or shining — the shield we interpose between our client and great wrong is war-worn and dented all over with many a thrust and giant blow from the tyrant, aimed at the People and their rights; the sword we draw in our defense is like Excalibar of King Arthur, hacked all along its edge in warding off many a stal- 462 MODERN JURY TRIALS. wart blow aimed by the Demon wrong; but our buckler is still strong and powerful, our sword trenchant, and sufficient to defend and save the humblest and lowliest from the deadliest onslaught of wickedness and oppression, however combined and confederated, even under the sacred name of law. Nay, more; our great shield of constitutional rights has been, by the fourteenth amendment, latelj' brightened and polished so that it blazes before the face of injustice as did the shield of Richard Coeur de Lion when he flashed it in the face of the Saracen. It is the eternal principle, new and old, old and new, and I speak with reverence when I say it might be said of it, " Before Adam was, I am," that no citizen's property, to the least pin's worth, shall be taken from him for any public use or private purpose without due compensation. For private pur- poses not at all. For public purposes only upon compensation. ******** Now I submit that this was a base or qualified fee, because the only use that New York could put the land to was to keep it open as a street forever, as other streets were; and it is not in dispute that there was neither horse, steam elevated or depressed railroads in the streets of New York at that time. The city received a fee in the sale to keep upon the surface a street there. What did this bargain and sale leave in Mr. Bertine belonging to the remainder of his land ? What did he give up the adjoining for ? To have a street in all that the name implies. What is that? A means of access for himself and others to his dwelling on that line, to be wrought for travel by the city. Lighting at night, guarding by day and night. So much, clearly, he was to have for what he gave up. What else ? What everybody has on a street — light and air to come in over that street to his house or to his land. In other words, the city took the street in fee, subject to easements to go over the soil; second, for the free light of heaven to come over the street; and, third, for the pure air to come into his house; and he nnd those claiming under him enjoyed those rights unrestrained and unmolested from 1838 to 1878, more than time enough to prescribe under the common law for the right, as against the fee in an adja- cent lot. My brother fritters all these easements away to the right of access upon the soil only. He says that is the only thing which a "street " means. Then the whole of Broadway can be roofed over tight. ******** That is, we have a right to the possibility of the enjoyment of our eyes in the light of heaven, in our own house; to the enjoyment of our ears in our own house; a right to the possibility of the enjoy- ELEVATED RAILWAY CASE. 463 ment of our own homes free of insults. Why do you and I want a dwelling? To live in by day and sleep quietly in by night, undisturbed; and still more, that our children, the wife and mother, may live there in undisturbed quiet at all times. But now so it is in this dwelling — when the heavy hand of sick- ness-has stricken the loved one, and she lies wearily upon, it may be, the bed of death, and with prudent care the window is opened to let in the pure air to aid the gasping breath; when with careful thought the rays of sunlight are so adjusted as not to offend the sleepless eye; when all is hushed in calm quiet, so as to soothe the throbbing brain, maddened by the tension of the overstrained and overwrought nerves; when the weary watcher sits tremblingly fear- ing less the- sobbing call of "mother," by the sweet voice of child- hood, may loose the " golden cord " which binds the sufferer to earth; when, perchance with hand made firm by loving duty, the father measures out the potent medicine, drop by drop, which he fondly hopes may save his beloved to him and hers — then the over- crowded, long-extended train of cars is driven thundering by, with the stench of suffocating gas; the flashing light of the baleful engine-fire closes with its glare the glazing eye; the uproar shocks into palsy the quivering nerves; the chamber of death is filled with clouds of smoke and sulphurous gases, choking the parched throat, closing the quivering nostrils which can no more breathe the breath of life forever; but when the darkening shadow of the train has passed, the returning daylight comes back into the mui^, smoke closed room to light up a pallid face, now clay, mourned over by bereaved husband and orphaned children as of one untimely taken. This is no overdrawn picture of what does now happen, but never can happen in a street kept " open for public use as the streets of New York were, and of right ought to be, kept open, and appropriate," where kind neighbors, from block to block, would cease playing even on the piano in pity for a sick sufferer. Surely this is a new taking and a new use of the street. Yet here in this temple of justice I am told that we must bear all this. That my client must look forward to such a death-bed *'or himself and his loved ones, and has no redress by the laws of the land. If that can be so, let me reside in some country where the people can temper despotism with the dagger — where the men who are protecting the rights of the citizen are beginning to use that method of stopping oppression. It would be more tolerable uuder a despotism, for that is one against the many. But here in 464 MODERN JURY TRIALS. New York the might, with the power, the wealth, the many are against the one, from which there can be no redress if the passions and motives which were invoked against Mr. Caro, who sits here, an old man, are to prevail as the rule of law. * * * * What does he say almost in the very next sentence? "See the great net-work of railroads running through this land to every vil- lage, bringing millions upon millions of property and thousands upon thousands of men into the eity daily. See all that has been done by this great system of railroads, and will you stop this last great public improvement in the city ? " Why, my friend, were not all these great systems of railroads radiating from this city constructed under exactly the principles of compensating owners of private property injured, we set up here? Make your road where you please and how you please, but pay for the injuries you cause in so doing. And has not every one of the surface railroads been made exactly under those provisions? Has the application of this principle stopped this great system of railroads ? Not at all. Even brother Porter, when he interposed for the church, didn't stop the railroad. They paid the damages, and went on just as though nothing had happened. The legislature says to them, build your road ; the state sends you out with this valuable charter, but upon it is written in fact the old time maxim of the common law, Sic atere tuo ut alienum -non Iwdas. So use your own as not to injure another. Theirs is the same title only by which we hold all our property everywhere under all circumstances. The amount of the injury, as is alleged, is "enormous;" but it is of no avail to discuss the question of damages. Nominal dam- ages only will answer their demurrer. May it please your honors, we have brought our client into this forum, one appointed by the laws of the state in which he lives, respectable in its history — nay, more, known for its exact justice — when in the hands of those who have respected the places they occupied ; and we bring him here shielded by the constitution, guarded by the sword of the law, surrounded by every right that is known to justice. We show him deprived of his home, that home which, if it were a hovel on^ - , the common law sa3 r s the king might not enter, although the winds and rains of heaven might pour through it. That home has been invaded by physical objects, stenches, impure air, and sounds, thrown into it by the respondents — the same force that breaks the glass out of your windows when the cannon is fired beneath them. CALLAHAN-TORMIE CASE. 4G5 We ask to his case so presented all of the investigation, acumen, and examination of the law that its great importance calls for, and if the court find he has been wronged, we demand judgment of remedy at your hands, regardless of the call of my brother upon you that the court turn him over to another tribunal, because it is an unpleasant duty to "give judgment against neighbors and friends." THE CALLAHAI-TOEIIE CASE. Tried at Wooster, Ohio, March, 1SS0. The interest and excitement of a city murder trial fades and diminishes to a common-place occurrence when compared to a great trial in a country village. The farmers leave their fields, mechan- ics their shops, and the entire community is absorbed in the one idea of the tragedy. The first case of the kind that ever occurred at Wayne county, Ohio, in a staid and substantial farming region, where morals and prosperity have gone hand in hand for half a century, may well awaken an intensely exciting interest; and while the real material for well-composed paragraphs in the eloquent arguments are want- ing, there is enough in the graphic story of the Wooster press and notes of counsel, to give a general idea of the event — as much as can be given without the speeches in full and the details of the evidence and trial. But a single element of interest was wanting to make this one of the most celebrated cases in Ohio. There loas no mystery in the killing! It was a running fight in a public fair-ground. This left the contest at the trial as to who provoked the murder. A full illustration of Callahan and Tormie, the scaffold, the coffin, and the hanging, with the details of the conviction and exe- cution was extensively circulated in the county and surrounding country and became a topic of general interest. To those that have never marked the difference between direct and circumstantial evidence, this will remain an ideal village mur- der trial. But to the country at large the deepest interest always follows the greatest mystery. Men become most absorbed in that 30 466 MODERN JURY TRIALS. which no one can fathom — a series of facts just clear enough to excite the mind, and lacking enough to convince the judgment just how the matter happened, is the real foundation for eloquence. The prisoner was brought into the bar by Sheriff Coulter, and was accompanied by his father and mother, who are respectable Irish people, residing a short distance east of Wooster. Five months' incarceration in jail had much improved his personal appearance, he being a good-looking, intelligent young man of about twenty-one years, neatly dressed, with no indications of viciousness in his countenance. While there was no public disturbance, Wooster never knew such an exciting time as during the progress of the trial. Wrought-up crowds for eleven days packed the court room to almost suffoca- tion, filling all possible space to the number of two thousand men and women, some, in their anxiety to witness the proceedings, even bringing their little children and crying infants. This was especially the case during the arguments of the counsel, more par- ticularly those of Lynch for the defense and McSweeney for the prosecution, and during the charge of the court. The representation of women of all classes was remarkably large the last few days of the trial. Long before the hour to open, they, with the men, almost ran along the pavements to get to the court house, excitably besieging the doors for admittance, and then in a breathless way rushed up stairs to secure seats. When the seating capacity was exhausted, the later arrivals kept crowding on, male and female squeezing into any possible space, filling the bar, the steps of the judge's stand, and even to places on the bench beside his honor — everywhere they could stand or sit, even flat on the floor — giving no room scarcely for the court, counsel or jury to move. Such a scene must be witnessed, as it is indescribable. Mrs. Tormie succumbed to her feelings during the testimony of the surgeon explaining the wounds and last moments of her slain husband. Mrs. Callahan, the mother of the prisoner, also gave way on one occasion. Frequently many men and women were bathed in tears, particularly during the pathetic recitals by coun- sel. As the natural result of so much nervous excitement, the oppressive air, etc., several women, at different times, fainted and had to be carried out. One juryman, who had been ailing, also nearly fainted away, and had to be removed and a physician called, necessitating the adjournment of court for a time. There were ?uany scenes and incidents of various kinds, well illustrating the inside of human nature. CALLAHAN-TORMIE CASE. 467 The presiding judge, Hon. C C. Parsons, was kind, tender, and mingled justice with mercy throughout the long and exciting case, the story of which appears in the arguments. ATTORNEYS. C. A. Rieder, prosecuting attorney, and Hon. John McSweeney appeared for the state ; and William A. Lynch, of Canton, and John McSweeney, Jr., for the prisoner. Hon. John McSweeney, of Wooster, for a quarter of a century has stood as a bright light in the great galaxy of Ohio's distin- guished advocates, and a more celebrated criminal lawyer is not known in the state. A man nearly sixty, strong, large, of power- ful voice and tragic delivery ; an extempore speaker, with the hot, impetuous eloquence peculiar to his nativity ; he impresses his juries with the gravity of the case, the magnitude of the issue, and then plays upon their passions like a master on an instrument. He has that peculiar oratory suited to a country jury, that capti- vates, enthuses, convinces and wins his cases. He is received in Ohio suits as a star actor in a play like Virginius. Although he often argues at great length, and grows bitter, vindictive and sar- castic, on this occasion he was tender and considerate, and all the more effective. Win. A. Lynch, Esq., on opening his argument, briefly expressed his profound gratitude to the court for the fairness and judicial impartiality accorded him and his associate counsel in the conduct of this trial, and the uniform courtesy and kind treatment received at the hands of the opposing counsel. In first addressing the jury he spoke in befitting terms, that he felt the solemn and immense responsibility imposed upon him and his associate counsel, when he considered that the life, liberty and future hopes of the young prisoner at the bar was committed to such weak hands. When he considered the anguish of heart of. this poor mother and this kind old father and affectionate sisters, he said he was appalled at the situation. But he said he was not without hope ; that there was a just foundation for it, and that all he asked of the jury was their careful consideration of all the testimony in the case, and that they should ingraft upon their hearts the precepts of the law — the law of the land, as it would be expounded and given to them by the court, and after all this, he felt that he could safely entrust the fate of this young man — his life, his liberty, his all — to the sacred keeping of this honest and impartial jury. Mr. Lynch then pro- ceeded with his argument of some eight hours in length, and closed 468 MODERN JURY TRIALS. with a fine peroration, in which he embraced the opportunity of forewarning the jury of the terrible power, and irresistible, persua- sive eloquence of the learned counsel who would follow him and close the case. He said that in many contests in which he was associated with him or pitted against him in the legal forum, he knew the force of his logic, his thrilling compaiisons and illustra- tions, his captivating manner, his terrible invective, his fierce denunciation, his stirring, sympathetic appeals, his mastery, by the power of his eloquence, over the hearts, minds and feelings of his audience, and how he would sometimes even warp his own judg- ment. He asked the jury to fortify themselves against such almost irresistible influence and power. ARGUMENT OF ME. McSWEENEY. He commenced the closing argument for the people at four o'clock, in that slow, measured, and impressive manner that hushed the vast audience to a silence almost painful from the beginning to the close of a long and eloquent address. The speaker opened by saying : Curran, the Irish advocate, was on a special occasion brought down to the county of York to assist in the prosecution of Sir Henry Hayes, for a capital offense, and, in opening his address to the court and jury, said : " I cannot forget upon what very different ground from that of the learned counsel for the prisoner I find myself placed. It is the privilege, it is the obligation of those who have to defend a client on a trial for his life, to exert every force, and to call forth every resource that zeal and genius and sagacity can suggest — it is an indulgence in favor of life — it has the sanction of usage, it has the permission of humanity, and the man who should linger one step behind the most advanced limit of that privilege and should fail to exercise every talent that heaven had given him in that defense, would be guilty of a mean desertion of his duty and an abandon- ment of his client. "Far different is the situation of him who is counsel for the crown. Cautiously should he use all his privileges — scrupulously should he keep within the duties of accusation; his task is to fairly lay the nature of the case before the court and jury. Should he endeavor to gain a verdict otherwise than by evidence, he were unworthy of speaking in a court of justice. If I heard a counsel for the crown state anything that I did not think founded in law I should say to myself, God grant that the man who has acted thus CALLAHAN-TORMIE CASE. 469 may be an ignorant man, because his ignorance can be his only- justification. It shall be my endeavor to so lay the matters of fact and law before you as shall enable you to clearly comprehend them, and finally, by your verdict, to do complete justice between the prisoner and the public." And, standing in my place to-day, a position entirely unsought, but filling an appointment made by this honored court, that, as a member of the bar and as an order-loving citizen, I dare not decline. I further declare that the lawyer who should attempt to procure the conviction of a prisoner of a high crime for the mere gratification of any desire for personal triumph or professional glory, would thereby prove himself unfit for the position of a public prosecutor, and in such hands the trial of an alleged offender would degenerate to a mere persecution. And an attorney impelled by such unworthy motives, even if successful, would gather only withered leaves and faded flowers for his victor- wreath, and would not have moistened his lips with one drop from that perennial fountain, whose living waters can alone quench the thirst of an immortal for true glory and lasting renown. Nor would he by an ill-starred triumph, obtained by motives such as I have indicated, ascend one step of the rugged side of that mount on whose bright summit fame's proud temple shines afar. I will none of such triumphs, nor would I bring down on myself the frowns and just censure of a chivalric profession. I may call things by their right names; I may strike hard blows, but they shall be fair ones, and after a full and candid discussion of this case, involving, as it does, the liberty and life of the defendant at the bar, I shall ask you to render such a verdict as will not in the great hereafter be quoted as weakening any of the safeguards of society, nor as giving encouragement to the infraction of that great command — "Thou shalt do no murder." " Having thus crossed the threshold, Mr. McSweeney then pro- ceeded to deliver what may be justly termed, like in speaking of Webster's speeches, a great speech, worthy of his distinguished abilities, and perhaps not excelled by any of his former efforts in Wooster. It is certainly true, as Mr. Lynch intimated, that he had to contend with the genius, the renown, and the popularity of a most eloquent and powerful adversary. He seems to be in the meridian of his intellectual faculties and reputation. In the course of his speech he indulged in those lofty and passionate flights of eloquence in which he excels, and in that terrific declamation which was set off by looks, tones, gestures and actions worthy of the great Garrick. In his whole argument 470 MODERN JURY TRIALS. He waved his scepter o'er his kind, By nature's first great charter— mind. "When he discussed law he was profoun'd and learned. When he dilated upon facts he was fair and logical, deducing his conclu- sions with unerring precision and crowning effect, and always showing the versatility of his mind. "The first portion of Mr. McSweeney's speech was grand in the extreme. Never was such a scene witnessed in our court. It was heart-rending, and yet frightfully appalling, especially when the speaker gave vent to that thrilling burst of eloquence in describing and almost re-enacting the death-scene on the Fair grounds, and when he said, " Make room for poor Torrnie ! Make way for dead Tormie ! — room for shrouded Tormie !" he sent terror into the heart of the accused, and aroused the utmost pity for the dead. It seemed as though He would drown the stage with tears, And cleave the general ear with horrid speech, Make mad the guilty and appal the free, Confound the ignorant, and amaze indeed The very faculties of eyes and ears, so indescribable was the scene and the effect of that overwhelm- ing evidence. " In making his appeal to the jury, in the spirit of candor he admonished them out of mercy not to sit as a board of pardons, but if the facts warrant it, and if they found ' guilty ' beyond all reasonable doubt, not to shrink from doing their duty, and strike, unmindful of the consequences, like the blind Goddess, who deals her unerring blow in justice's name, though her knife be ofttimes bathed in tears." Judge Parsons expounded the law in a clear and forcible man- ner, making the legal definitions plain to all; and then presented a summary of the evidence that the state had produced, describing how the trouble commenced at the Fair grounds at dark on the evening of October 2d, 1879, the running fight, the clubbing and stabbing to death, for being one of the participants in which the prisoner at the bar stood arraigned under an indictment for murder in the first degree. The prisoner was found guilty and hung December 3d, 1870, having secured a reprieve of ninety-eight days to await the decision of a writ of error in the Court of Appeals, which was denied. PORT HURON RAILROAD CASE. 471 THE POET HUEON EAILEOAD CASE. Hon. Stanley Mathews as an Advocate. A wise man has said of eloquence, that its foundation is wisdom; that it is "speech combined with the greatest pleasure to the hear- ers;" that "it steals in upon the senses and implants new opinions in men;" that through it the mention of antiquity gives credit and authority to the speaker's words. This was an instance. A long contest over the railroad from Flint to Port Huron, from 1876 to 1878, ended in a suit in the United States Court for the Eastern District of Michigan, in which Hon. Stanley Mathews of Ohio appeared for Mr. Vanderbilt's interests, in an able argu- ment of four hours' duration. Mr. Mathews is a large, strongly built, earnest man, nearly fifty- six years of age, with full, heavy, brownish beard tinged with gray; dark brown hair and deep-set dark gray eyes; a commanding manner and a powerful voice, under fine control. He speaks with a dignity and precision that makes each word stand alone and holds the closest attention, even in a legal argument. Before he utters a word, one can read great sentences in his eyes. From the first he asserts himself, and to the last is brimful of intense, stalwart courage and imperial determination. Few men use choicer lan- guage, stronger sentences, or more magnetism. He is aggressive and yet obliging; his conclusions are full of point and vigor, and when reached seem unalterable. He builds his logic as of granite rocks, and cements them after the old Roman fashion, to endure forever; saving his keystones as a crowning arch, he fits and matches them with the skill of a master builder. No report of words can do him justice. It is the delivery — the deep, impressive, giant blows, that carry conviction. " This man," said he, " that is charged as a reckless manager — that is branded with epithets and loaded with unseemly behavior, who is he? Why, your honors, he is the father of the road ! He is the manager of the enterprise; requiring hundreds of thousands in money, while he himself is poor. He has passed the age of sixty years in honorable pursuits; he has battled with fate, without funds, and failed. Is he alone in this? Have not others reached a hope- less struggle like his and went down in honor? Few men, even of 472 MODERN JURY TRIALS. genius and capacity, pass the age of sixty years and see their bright dreams realized. He is no exception. It is not dishonor; it is want of wealth that foils his plans. At his age he has seen sor- rows, he has met reverses; it is no time to question motives, but in this emergency, with the outward frame of rolling stock, and even track, we come forward with means to breathe new life into its half-created form; we come with the power to lift the weight; we come with the checks to pay the men; we come with the bond to make them secure; we come to link this to a chain of iron bonds that skirt and rib and span the nation ! We ask to give it life and energy and power to carry palaces through the air. And I'll tell you, your honors, how. Here is an affidavit; it is no part of this bill, but sheds light on it and furnishes good reading, and I'll read it now." Here he reads and argues, gives figures and plans, and after an argument reaching nearly till dark, with his face all aglow with intense animation, his eyes beaming with determined fire, his hands and arms surcharged with that trembling, half-waiting gesture, but dignified and impassioned manner, he closes in words nearly like these: " And now in view of all these facts, and of the vast interests at stake, of the large sums involved, of the general good to be attained, of the responsibility, sirs, that you assume, I shall ask but one, reasonable request, and when I shall ask it it will be in lan- guage so plain, and with equity so clear, that to grant it will do justice to every creditor, every laborer, and even the plaintiff and defendant, alike. I will found my request so thoroughly in reason that my brothers will concede no better plan has been devised to give the relief prayed for in the bill. I will now ask, your honors, that this court shall give Mr. Vanderbilt the management of this road from now henceforth, and shall offer a bond of ample security for $300,000, to secure every laborer, contractor and corporator, each his own. And in this demand I appeal to the highest con- science and gravest dignity of the court, to the character and high standing of your honors, to your mature judgment, from which, practically, there is no appeal, but which, when rendered, we trust, will be final, and so equitable that we shall feel that wisdom and honor and conscience have combined to make it indeed a just decision." During these long sentences one would feel like saying, with the populace to Mark Anthony over Caesar's body: " Read the will I THE BIBLE IN THE SCHOOLS. 473 read the will ! " long before he reaches his conclusions. By his intensity, his holding on, his vehement and determined language, his bold, defiant and expansive logic, he commands a court and expects obedience. His request was, practically, granted. THE BIBLE IN THE SCHOOLS. Trial at Cincinnati, 1870. The discussion of political and moral questions as often falls to the lot of leading advocates as arguments to a jury. Formerly the advocate was the instructor of the people, while, in our day, the press does the preliminary part, and the courts generally end the controversy. The discussion of this question commenced and ended in this manner. The entire country was intensely interested; dispatches were daily cabled to Europe, adding new fame to the orators and heat to an excited contest, that called for all the learning and acu- men of counsel. Stanley Mathews met and mastered the subject with great skill and thoroughness. Did space permit of a full review and extended quotations from his address to the judges, more would be given. But only the briefest story can be related, which is: In November, 1869, John Minor petitioned the Superior Court of Cin- cinnati for an injunction to restrain the School Board from enforc- ing a resolution passed by them, which repealed a former resolution requiring "the opening exercise in every department to commence by reading a portion of the Bible under direction of a teacher, and appropriate singing by the pupils." A temporary injunction was granted. The board claimed the court had no jurisdiction. The arguments of the question lasted five days. Messrs. Wm. M. Ramsey, Geo. R. Sage and Rufus King, for plaintiffs; and J. B. Stallo, George Hoadly and Stanley Mathews, for defendants. Mr. Mathews grew very earnest and eloquent, and made by far his greatest argument; opposed by public opinion, opposed by the court, only intensified his research and delivery. He gave a brilli- ant and beautiful apostrophe to the Bible, which appears near the close of his address. Judge Stallo made a humorous address; 474 MODERN JURY TRIALS. Judge Hoadley a very able legal argument. In fact the six argu- ments were all able, notably that of W. Ii. Ramsey. Mr. Mathews said: May it Please your Honors : It would cost me a very painful physical effort to appear to-day in any case; it has cost me a very difficult and painful mental effort to appear in this. It is easy to swim with the tide, to go with the current, to follow in the wake of the multitude. To do things that are popular is not hard. But to stand by a man's individual moral convictions, in opposition not to enemies, but to friends, tries a man. If your honors please, it tries me. Except the loss of dear children, this is the most painful experience of my life — to be told that I am an enemy of religion, that I am an opponent of the Bible, that I have lost in this com- munity my Christian character, and that my children and my grand-children will reproach my memory for this day's work. For all that, and more, has not been whispered merely through the crowds, but has been told me to my face. If your honors please, I would be silent to-day, if I dnred, but I have no choice. Believing, as I do, that an appeal is being made to this court to wrest the law to an illegal end, as a lover of my profession, I am under a professional obligation to withstand it. Believing, as I do, that doctrines the most dangerous and mischievous to the value and safety of our glorious system of public schools are being preached and promulgated, doctrines that are equally as dangerous and mischievous to civil order and the safety and peace of the state, as a citizen, I feel under still higher obligations to oppose them. Believing, as I do, that this suit and the principles on which it is maintained, and can only be maintained, cause a book, that I believe to be of no human origin — to contain the very words of God — to be made the subject legitimately of public criticism in a court of justice, and only next spring to be bandied about as a foot-ball between political parties, and a religion which it is the greatest honor and pride of my life to be able to-day to stand in public and confess, to be made the watchword of contending fac- tions in the state; believing that both that book and that religion are thus discredited, as a lover of the one, and as a disciple of the other, my responsibility to God and my conscience will not allow me to do anything else than to speak. I do not, indeed, doubt that the majority of those whose views I am opposing, are actuated by sincere motives and an honest desire to do what seems to them to be right, and believe that their ocurse is necessary to preserve the honor of religion, respect for THE BIBLE IN THE SCHOOLS. 475 the Bible and the best interest of the state. It is natural enough that they should feel with some sensitiveness the rudeness of an unexpected shock to their prejudices, hardened into habits by the practice of many years; and that they should resist and resent what they regard as an attack upon religion and an insult to a book they believe to be divine, without inquiring whether, without regard to the motives of individuals or the reasons which governed them, the action of the school board, considered in its legal aspects and rela- tions, is not just, reasonable and right. I am, nevertheless, con- strained by my convictions, deliberately to repeat, that it seems to me that the real source of the public feeling against the action of the school authorities, is not so much a regard for the substance of religious education as solicitude for the name of Protestant supre- macy. The sting consists in having to haul down the Protestant flag without thinking whether they had any business to be flaunt- ing it in their neighbors' faces. * * * Why, if your honors please, if I remember rightly, in the opening of his speech at Pike's Opera Hall, the commencement of this suit and of this controversy, he laid the foundation of his argument in the dedication of the continent by its first discoverer to' Christi- anity, and he might have added to the Pope of Rome. He and his colleagues enlarged upon the fact that all the early governments of the colonies were based upon the recognition of the binding obli- gation of the same law; that the Declaration of Independence was also a recognition of the same fact, and that the Federal Constitu- tion was itself based implicitly and necessarily upon the existence of the same state of things. Now, if this be so, if Christianity is a system of law binding on the citizens, as being a command from the supreme civil power that is as extensive as our national institu- tions, lying at the base of them all, federal and national, then of course the conclusion follows that the people of Ohio, as such, have no right to repeal or abrogate it; and that, consequently, as being a part of that universal frame of government in which they form but a- part, they can have nothing in their constitution which denies it or is inconsistent with it. But it was not my purpose to insist upon any thing as deducible from that view. It is sufficient for the purposes of my argument to allow the gentlemen to stand upon the narrower ground, if they prefer it, that Christianity, as a system of law, is recognized and made valid and binding in the state of Ohio by the supreme civil power that exercises jurisdiction here. But this will not do. We may call the eccentricities of con- science, vagaries, if we please; but in matters of religious concern 476 MODERN JURY TRIALS. we have no right to disregard or despise them, no matter how trivial and absurd we may conceive them to be. In the days of the early Christian martyrs, the Roman lictors and soldiers despised and ridiculed the fanaticism that refused the trifling conformity of a pinch of incense upon the altar, erected to the Csesar that arro- gated to himself the title and honor of "divine," or of a heathen statue. History is filled with the record of bloody sacrifices which holy men who feared God rather than men, have not withheld, on account of what seemed to cruel persecutors but trifling observ- ances and concessions. And especially the history of the Protestant divisions in religion, is the record of the fearlessness with which men, in the exercise of the rights of conscience, have not hesitated to fill the world with their schisms, upon what to others appear to be the merest and most insignificant forms ; so that they have seemed to worship iconoclasm rather than what seemed to them to be forbidden images. A posture, a gesture, the sign of a cross, the bowing of the head, a genuflexion, the sprinkling of a few drops of water, a few words said over a wafer, a picture, a lighted candle, a vestment, whether words shall be said or sung, whether choristers shall be dressed in surplices, whether there shall be a black gown, or a white gown, or no gown at all, whether prayer shall be read or said, whether a psalm shall be chanted, or if read, whether by min- ister alone or minister and people responsively, or whether a hymn not composed by inspiration may be sung, whether the music shall be led by a precentor or accompanied by an instrument, and if an instrument whether it shall be viol or organ, whether a sermon may be read, or shall be committed to memory and spoken without man- uscript, or preached without verbal preparation ; these and perhaps a hundred other like things, of no greater import, not to speak of the numberless variances of opinion upon matters confessedly not essential to religious conduct and character, have nevertheless been regarded by religious men as sufficient in conscience to justify a breach of the unity of the church ; and it is notorious, that the heat of contention between sects, divided upon points of fa^th or order, has been in proportion to the narrowness of the line that has divided them. Conscience, if your honors please, is a tender thing, and tenderly to be regarded ; and in the same proportion in which a man treasures his own moral integrity, sets up the light of conscience within him as the glory of God shining in him to discover to him the truth, so ought he to regard the conscience of every other man, and apply the cardinal maxim of Christian life and practice. THE BIBLE IN THE SCHOOLS. 477 "Whatsoever ye would that men should do unto you, do ye even go nnto thom." Tliey ask, "Have Protestants no rights? Can not the majority of the community insist upon their consciences? Must the rights of minorities alone be consulted ? Are we to be ruled by Catholics, or Jews, or Infidels ? " The answer is obvious and easy. Protestants have no rights, as such, which do not at the same time and to the same extent, belong to Catholics as such, to Jews and Infidels too. Protestants have a civil right to enjoy their own belief, to worship in their own way, to read the Bible and to teach it as part of their religion, but they have no right in this respect to any preference from the state, or any of its institutions; they have no right to insist upon Protestant practices at public expense, or in public buildings, or to turn public schools into seminaries for the dissemination of Protestant ideas. They can claim nothing on the score of conscience, which they can not concede equally to all others. It is not a question of majorities or minorities ; for if the conscience of the majority is to be the standard, then there is no such thing as right of conscience at all. It is against the predominance and power of majorities, that the rights of conscience are protected, and have need to be. There is one practical test to which this matter can be brought, that, if it would only be honestly applied by every one within the sound of my voice, I think would settle this controversy without another word, and that is this : Suppose this was a Catholic com- munity and the Protestants were in the minority, and suppose that the Catholics had established a system of common schools in which they had declared that religion, morality and knowledge being essential to good government, therefore the general assembly should pass laws for the purpose of protecting every religious denomination in the enjoyment of its own mode of public worship, and also for the encouragement of schools and the means of edu- cation; and that, therefore, they had created a large fund, taken partly out of my pocket and partly out of yours, and of the remainder of the citizens, for the establishment of a magnificent system of schools, and had said : "But inasmuch as our constitu- tion requires that religion shall be the handmaid of government, therefore we must incorporate religious instruction into those schools, and we know no religion except that which Mother Church teaches, and we know no hands to teach it except those whom God has appointed, and whom His representative and vicegerent upon eirth has anointed with the holy oil of His approbation for that 478 MODERN JURY TRIALS. purpose. Now, therefore, we shall declare by a constitutional rule, which shall be so firmly fixed in the social institutions of the coun- try that nothing can change it, that every morning the exercises of the day shall be commenced by the solemn worship in the sacrifice of the mass." It is said there are hundreds and thousands of children in this goodly, this Christian city, that have no chance or opportunity for being educated in what my friends on the other side call "the elementary truths of Christianity," not even in a knowledge of that " broad Christianity," unless it can be given to them by a perusal every morning, by the teacher, of a few verses out of the Bible in the common schools. I say, if it be so, it is a lamentable confession of great lack and neglect of duty, not on the part of the state, but on the part of the church, meaning by that the invisible body of true believers who are, as they believe, to create the King- dom of Heaven upon earth. It is said they are in the by-ways, lanes and alleys. And can they not be reached there ? Can not the church send out its minis- ters ? or are they too busy, day after day, in their studies, preparing to dole out dogmatic theology Sunday after Sunday, to the tired ears of their wearied congregations? Can not they send out their Sunday-school teachers? Can not they send out their missionaries? Why, the command of the Savior was to go out into the streets and lanes of the city, and into the highways and hedges, and bring all in, bring them in to the feast which he had prepared — this feast of fat things, of goodly things. Must we say that the church has grown idle and lazy, and can only hobble on its crutches, and therefore that our school directors must set themselves up as teach- ers of religious truth ? No ! let the church cease to depend upon any adventitious or external aids. Let her rely solely upon the omnipotent strength of the spirit of the Lord that is in it. Let it say to the state, "hands off ; it is our business, it is our duty, it is our privilege to educate the children in religion and the true knowledge of godliness." Don't let them starve on the husks of a broad Christianity. Let us give them that which is definite, and distinct, and pointed — the everlasting and saving truths of God's immortal Gospel. APOSTROPnE TO THE BIBLE. But if your honors please, let me say, for I conceive it to be a privilege to say it, that I believe that this book, which I hold in my hands, is a sacred book in the highest sense of the term. I believe that it is the word of the living God, as essential to our spiritual THE BIBLE IN THE SCHOOLS. 479 'nourishment and life as the bread we eat, and the water that we drink to quench our thirst is, for our bodies. It records the history of the most marvelous appearance that ever occurred in human his- tory — the advent in Judea of the man Christ Jesus, the promised Messiah of old, whom Moses wrote about, and of whom Moses was a feeble type; whom Joshua predicted when he led the hosts to take possession of the happy land and prefigured; whom all the prophets foretold, and the Psalmist sung, and the people sighed for, throughout all the weary ages of their captivity and bondage; who appeared in the light and brightness of the heathen civiliza- tion of the Augustan age; who spake as never man spake; who healed the diseases of the people; who opened their eyes; who caused the dumb to speak, the blind to see, the deaf to hear, and preached the Gospel to the poor; who was persecuted because he was the living representative of divine and absolute truth, and who was lifted up upon the cross charged with blasphemy untruly, but slain upon the baser charge of treason to the Roman Caesar, while iu the very act of declaring that hie "kingdom was not of this world;" lifted up, to be sure, by the hands of men, of ignorant men, for whom and for whose forgiveness he prayed, "because they knew not what they did; " lifted up by their hands, but in pursu- ance of a covenant that he had made in eternity with His Father that it should thus come to pass, because without the shedding of blood there was to be no remission of sin; lifted up in order that he might draw all men unto himself, that whosoever looked upon him might be healed of the poison of original sin and live. "Behold the Lamb of God which taketh away the sins of the world !" That, if your honors please, is my credo. If I am asked how I prove it, I enter into no disputation or doubtful argument. I simply say that his divinity shone into my heart, and proved itself by its self-evidence. I have not three witnesses only, if your honors please, above. I have five — five witnesses in heaven to-day, that are calling to me to come to them. I would not give up, I would not abate a jot or a tittle of my belief in that book, and in the God that it reveals, and the salvation that it offers for all that this world can give. And yet, if your honors please, in the spirit of my Divine Master, I do not want to compel any man. If he can not believe — oh ! it is his misfortune, not less than his fault, and not to be visited on him as a penalty by any human judgment. It is not to be the ground of exclusion from civil rights; it is not to bar him from any privilege. It is even, if your honors please, to protect him from the finger of scorn being pointed and slowly moved at him as if he were out of the pale of divine charity. Oh, 480 MODERN JURY TRIALS. no; it was to the lost that the Saviour came, to seek them as well as to save them; and I know no other way, I know no better way, to recommend the truth of that book to those who can not receive it, but to live like him whose teaching is to be just, to be good, to be kind, to be charitable, to receive them all into the arms of my human sympathy, and say to them: "Sacred as I believe that truth to be, just so sacred is your right to judge it." [After citing many authorities, he thus spoke of the church]: Let her rise up in the full measure and majesty of her innate spiritual strength; let her gird her loins for the mighty task; let her address herself with all earnestness and heroic zeal to the great but self -re warding labors of Christian love; let her prove herself by her works of self-denying charity, to be the true Church as Jesus proved himself to the disciples of John to be the true Mes- siah, when he told them, " Go and show John again those things which ye do hear and see; the blind receive their sight and the lame walk, the lepers are cleansed and the deaf hear, the dead are raised up and the poor have the gospel preached to tham." Let her organize all her forces for a more determined and closer, hand-to- hand struggle with sin and evil, of every form, and the misery and wretchedness, of which they are the cause. Let her ministers and missionaries not only proclaim from their pulpits "the unsearchable riches of Christ," but descending among the hungry multitudes distribute to them the precious bread of life. Let them declare to the rich and the educated, their duties, their responsibilities and their privileges, and lead them in person to the places where their work is to be done, and stimulate them by their example to do it. Let them inspire by their enthusiasm, and fire with their zeal, the indifferent and the slothful. Let them, by setting forth the beauty of holiness and the purity of " the truth as it is in Jesus," which is able to make us wise unto salvation, send the healthful and invig- orating influences of our holy religion through every social relation, and glorify the business and the pleasures of our daily and secular life, by consecrating them to the glor}' of our Father who is in heaven. Let them turn these streams of the pure water of life, welling up in the hearts of their followers, into the dark and pesti- lential receptacles, where ignorance, poverty, misery and sin are gathered, and breed disorder and death. Then the great and the good, the noble and the wise, in the unity of the Spirit and the bond of peace, forgetting those things which are behind and reaching forth unto those things which are before, pressing toward the mark for the prize of the high calling of God in Christ Jesus, in one grand array, will meet and wrestle against principalities, against powers, THE BIBLE IN" THE SCHOOLS. 481 against the rulers of the darkness of this world, against spiritual ■wickedness in high places, and shall wrestle not in vain, for they shall be strong in the Lord and in the power of His might; clad in the whole armor of God, their loins girt about with truth, and hav- ing on the breast-plate of righteousness; their feet shod with the preparation of the gospel of peace, and above all, taking the shield of faith wherewith they shall be able to quench all the fiery darts of the wicked, the helmet of salvation and the sword of the Spirit, which is the word of God, praying always with all prayer and sup- plication in the Spirit. Then shall be hastened the promised time of the coming of our King when there shall be a new heaven and a new earth, wherein dwelleth righteousness — the holy city, the New Jerusalem, coming down from God out of heaven, prepared as a bride adorned for her husband, the tabernacle of God with men, where He will dwell with them and they shall be His people, and God himself shall be with them and be their God. But let them remember that to advance this glorious consumma- tion the Church must throw away the sword of civil authority which some of her too eager and impetuous sons would put into her hands; that the Kingdom of her Lord is not of this world; that she must render unto Caesar the things that are Caesar's, and unto God the things that are God's; that she must not permit any unholy dalliance with the solicitations of worldly power or advantage, but keep herself unspotted from the world; that her dominion is over the minds and hearts of men. and her victory achieved with spirit- ual weapons alone, by appeals to their reason, to their conscience, to the highest and best in their ruined nature, to be restored by the power, not of human laws, but of the Spirit of God; and that in proportion as she becomes conscious of her origin and destiny, of the divine and immortal life she bears in her bosom, hid with Christ in God, and grows into the recognition of her mission and place in the work and history of the world and of eternity, she will dissolve all ties that bind her to secular influences and the natural sphere of human interests and actions, and establish herself firmly upon the seat of her spiritual throne, whence are complete and equal rights, and where every person can join any sect he pleases, or belong to none, or found a sect for himself. I have not, may it please your honors, strength to continue. There is a world of things that crowd upon me to say, but I must forbear; but I cannot close and take my leave of this case without saying that I owe my profound and sincere acknowledgments to your honors for the patience with which I have been treated. I know that I have needed forbearance; I have not perhaps deserved 31 482 MODERN JURY TRIALS. it, but your honors know the palliations of the case. I could not say less. What I have said, I know your honors will believe me, I have said in the fear of G-od, because I believed it was the truth and the right. If I have erred, if I am wrong, I can only look to Him for pardon who is willing to extend it to all who humbly seek it. But I tell your honors my heart is in this thing. I believe it to be a matter of the most vital, of the most momentous and profound importance. Whether I be right or wrong, it calls upon your honors, it summons you to a very high, a very diffi- cult and a very important duty. I shall make no appeal to your honors. Your honors know what your duty is, and I know you will perform it. [ Note. — This address is not given for its author's opinion, but for the power of his logic. No opinion is here given on the merits •of the discussion. But he won.] THE STAND AED OIL COMPANY CASE. ARGUMENT OF HON. STANLEY MATHEWS. This mammoth corporation, " more valuable than a gold mine or a railroad," that has coined its millions for the company, was organized in July, 1876, as a " Confederacy." It was to keep its business a profound secret, limited to 85,000 barrels per annum, and neither of the confederates to engage in a rival business for ten years. The monopoly was broken by one of the partners, and an injunc- tion applied for in Cleveland Common Pleas Court, to restrain the partner from doing business contrary to his agreement. The injunction was denied, and the order appealed from, at the hearing of which this argument was made by Mr. Mathews, whose spe- cial forte is in convincing a court of learned judges. His sen- tences are so long, and reasons so exhaustive, that few jurymen could comprehend them. He is one of the few men whose court arguments are lively and command attention. His periods are all massive and Websterian, replete with ohoice selections, apt citations, and plain, sensible con- STANDARD OIL COMPANY CASE. 483 elusions. So confident is he in his positions that his own belief' inspires his whole argument with force and earnestness. This address is condensed to a very brief one from 144 pages, and con- tains one of the longest and strongest periods ever delivered byi Mr. Mathews. After an elaborate legal statement Stanley Mathews said : It was agreed, your honor, that it should be kept profoundly secret — secret not merely from the customers of the firm, not merely from the consumers of this article, not merely from the inquisitive eye of an over-curious public that had no business to inquire into the private matters that belonged to the firm, but from. the bookkeepers of the firm of Scofield, Shurmer & Teagle, from, the agents, employes and hands — aye, from the very wives of the parties themselves. And this was done practically. The intention was executed. It was adopted as a practical construction of the understanding of the parties in reference to this agreement that a, fictitious and false account should be opened on the books of Sco- field, Shurmer & Teagle to represent the transactions under this agreement, and that a box in the postoffice should be rented in. another fictitious name, in which all communication between the Standard Oil Company and Scofield, Shurmer & Teagle should be deposited, no one having access to that box, or knowing from whom, the communications came, except these parties personally them- selves. The significance of that fact will appear hereafter when we come to consider what the law is in regard to it. As to the fact there is no doubt ; and it demonstrates this : that the whole thing — -the mode of keeping these accounts and of trans- mitting these communications, and of suppressing all possible knowledge of the existence of this arrangement — was not in the usual course of business. It is not the way in which business men carry on ordinary business enterprises, and it reflects light upon the character of the arrangement entered into between the parties and upon the intention and motive that actuated them in it, and shows what their purpose was; to wit, that this joint adventure, so called, was a mere form, a mere sham, a mere device. It was colorable. It was not intended as an ordinary joint adventure in which parties hazard agreed proportions of capital, time and skill in the result of a particular business enterprise, but refer to outside influences and to effects other than those involved in the success. How does it happen that the Standard Oil Company is in the position, which it assumes in this stipulation, by which it can say to the defendants, " You allow us, in our name, not in your own, 484 MODERN JURY TRIALS. to send to market the product of your oil refinery, by such routes as we may select, and we will be able to give you lower rates of freight, by means of rebates, than you can get by open stipula- tions in the market by going from one trunk line to another ?" Had it the power to procure freights on better and more advanta- geous terms than the rest of the public engaged in the same busi- ness ? If it had not, of what value is that stipulation, and how does it operate as a consideration for the restraints imposed upon these defendants in this business ? And if they had such power, how did they get it? and what legal right have they to exercise it ? By what authority of law has any railroad company a right to combine with the Standard Oil Company and say to it that for any cause, or any consideration, the product of its refinery, or the product of any refinery shipped in its name, shall be taken from Cleveland, the point of production, to New York, or elsewhere, the point of marketing, at a more favorable rate than the humblest and the smallest manufacturer in the same business can get ? Any such arrangement as that would be only a part of the same illegal and oppressive combination of which this contract is a specimen, and shows, not, certainly, what the fact may be, but beyond all question shows what the tendency and the ultimate result must be, and that is that if this or any other corporation is allowed to exalt itself in this way and by these means above competition, it is also exalted above the law. In other words, if you will put yourself into our power by agreeing not to come into competition beyond the limit which you agreed of 85,000 barrels per annum, in return for that we will enable you to have advantages in the transporta- tion of your product beyond what can be had in fair and open market, by secret arrangements. These are to be rebates — excesses to be paid over and above the actual rate, and between that and the nominal rate held out as the market price for transportation to the ordinary customers of the corporation. Now, what is it these parties are complaining of ? What is the specific injury which they have suffered ? What is the damage which they have incurred ? What is the loss that must be made good to them? The facts that I have stated demonstrate that if they have suffered any injury, that if they have received any dam- age, that if they have actually fallen under a,nj loss, it is some injury and damage and loss outside of this adventure. The adven- ture has not suffered any loss, and the amount of interest invested in the adventure has not received any detriment, that adventure has been an immensely profitable one; it has been better than a gold mine. It has been equal to a mint; for, without any personal STANDARD OIL COMPANY CASE. 485 supervision, without any loss of time, without any expenditure other than the bare investment of the money, insignificant in its amount as compared with the results, they have been receiving dividends that are to be counted, not by percentages, but by mul- tiplication of the original capital over and over again. How are they hurt ? Why do they complain ? Why, the Scofields say that there is a dreadful risk in this matter, and they may be over- whelmed with personal responsibilities incurred by virtue of the action of their partners. There is not an allegation that a single debt has been contracted. There is not an allegation that there is a single outstanding unpaid promissory note. There is nothing whatever to show that this has not been the ordinary and legiti- mate result of simply cash operation day after day by the devotion of the time, the attention, the skill, the economy and the prudence of the men whom they are arraigning here for subjecting them to the dangers and hazards of this enterprise. They could afford to lose something for a year or two, and then, on the whole, it would be an immensely profitable undertaking. Is not, then, the conclu- sion inevitable that the clamor of danger to the interests that are invested in this enterprise is a false clamor, that the outcry is for some other reason, and that the real injury has been that the Stan- dard Oil Company has only made half of the excess of this amount, when, by its right, it ought to have made the whole; and that it had agreed that these men should make for them one-half of all that their industry, economy and enterprise could pile up, to the extent of the profits on 85,000 barrels per annum; but that when it came to anything more than that they were to have every dollar of it themselves? Then what is the object of this contract, if it is not to limit the production of these gentlemen to this amount, in order that the Standard Oil Company shall have the entire area of production left unoccupied by others for its own benefit? And what is that but an agreement to stifle competition, to suppress opposition, to create, to the extent to which the agree- ment goes, a monopoly in the hands of the Standard Oil Co. ? I do not know whether the Scofields have any interest in the Stan- dard Oil Co., as such, or not; but their attitude and appearance in this cause is ground of suspicion that they are making use of their real interest in this enterprise with their partners in this firm as a tender to increase some interest which they have, in which their partners are not entitled to share. Certainly the Standard Oil Co. is not seeking the interests of this adventure. They are seeking the incidental and collateral benefits of this agreement to an inter- est of their own, belonging exclusively to themselves, and which 486 MODERN JURY TRIALS. is outside of this adventure, and consists of that independent and separate interest which they previously had in the conduct of their business, which the object of this contract on its face is to recon- cile the adverse and hostile interests of Scofield, Shurmer & Teagle, not by limiting themselves, but by limiting Scofield, Schurmer & Teagle to a production of 85,000 barrels of refined oil per annum. That is shown as a matter of fact, as the inducement for entering into this covenant and agreement, in addition to the recitals contained in it, by the testimony that was read in the affidavit of Scofield as to what conversation took place between the parties at the time when this amount of 85,000 barrels per annum was adjusted as the relative proportion of the capacity of this refinery, and limited to that. But they took very good care not to limit themselves to a corresponding relative proportion of production in their own refineries, and then agreed that any quantity over and above the aggregate amount should be divided between the parties in the same ratio. Such an agreement would have been in consonance with the spirit of such an understanding, and would have had some of the elements of equivalency and fairness in it. But for ten full years — a fixed period — provided it suits the Standard Oil Co. not to suspend and resume again in that time, continuously, without regard to any changes in the situation, without regard to any increase in the price of the article in the market, without regard to any changes in the method of production, without regard to any improvements in machinery, without regard to any of the possible and probable changes that may take place in this wonderfully changing age and country during a period of ten years — the ten years from 1876 to 1886 — equal to a hundred years of any other century — all that time, in the midst of all these fluctu- ations and changes, these men are to be ground down with their noses to the grindstone, incapable of taking any advantage of any favorable change to their own interests or the interests of the public, the fixed terms of this contract limiting them to a produc- tion of 85,000 barrels per year, while the Standard Oil Co. becomes by that — and if it can make that, it can make a thousand other contracts with a thousand other people — becomes by that the "monarch of all it surveys.'' Ten years! Why, it has been but a little over thirty years since there was no railroad in the city of Chicago. On the fourth day of July, 1847, in that city I heard Edward Bates, then a distinguished lawyer in the city of St. Louis, declare in a public speech that he had never then seen a railroad, and he could not see one in the town where he was making his speech. In St. Louis and Chicago to-day, more railroad business STANDARD OIL COMPANY CASE. 487 centres, perhaps, than in any other two points on the surface of the earth ! And we have not half done. We have only half begun. What changes are to take place during the progress of the ten years from 1876 to 1886, no man knows. But Scofield, Shurmer & Teagle are not to have the benefit of them. They are required to go to the old treadmill in the old way, and when they have made a profit on 85,000 barrels per annum, of which all in excess of $35,000 goes to the Standard Oil Company up to 170,000, and then one-half of the rest. All the rest, with all new improvements, new developments and changes, is to be swept into the coffers of the Standard Oil Company. I suppose for the benefit of the widows and orphans that own its stock. Now, is it the policy of this country, is it the policy of this state to allow a corporation to enlarge its powers, to increase its facili- ties, to draw to itself all the business of the kind which it was authorized to carry on, no matter whether conducted by itself, under its own rules and by-laws, or by others, so that it shall sit, as that council that was alluded to by the gentlemen on the other side, "high on a throne of royal state," and dictate to all those who have come in subjection to it the capital they shall employ, the policy they shall pursue, the purchases they shall make, the prices at which they shall sell, the rates of transportation which tbey shall employ, the methods by which they shall supply the market, the sales, the purchases, the negotiations, the contracts? Why, we might have — I do not say that we have; we are arguing tendencies and not results — we might have a corporation growing up, under the influence of such a simple principle as that, until you might hear some day that it had divided nine millions of dollars among its corporators in one year as profits on its business; that, in the short course of ten years, men who had started on the same level, as to means, with the ordinary citizen, shall have grown into such proportions of wealth, as almost to rival the descriptions and the glitter of the Arabian Nights; when no expense is too vast for the gratification of a taste, no matter how trivial, and when a man, simply for the purpose of enlarging the boundaries of the play ground of his children, may destroy a habitation worth fifty thou- sand dollars. I am pointing out to your honor what is the inevit- able, the irresistible tendency of allowing corporate bodies to add, at their own volition, to the aggregate of those powers within which they are restrained by the letter of the law. If your honor please, is this apprehension of danger an unreal one ? Is it one that is outside of the limits of a judicial argument ? The fear of the growth of corporate monopolies is as old as Magna Charta. 488 MODERN JURY TRIALS. Now I come to the chief question in the case, and that is, that this contract is illegal and void, because it is in restraint of trade. It certainly does not need any definition of what such a contract is to show that this is a contract in restraint of trade. A contract which restrains trade is certainly a contract in restraint of trade; and all that it is necessary to do is to look at it and to read it, to see what its stipulations are, in order to determine whether or not it is within that description. It does not follow that it is unlawful because in restraint of trade. That remains to be considered. But now the question is, is it in restraint of trade? Does it restrain these defendants, Scofield, Shurmer & Teagle, in the con- duct of their business ? There certainly ought to be no contro- versy about that. I pointed out this morning, in reading the con- tract by sections, the various particulars in which it does actually have the effect, if it is put in force, to restrain them in the conduct of their business in accordance with their own discretion. It requires them to abstain from establishing any other business. In this the public has a deep interest, both as to the price of raw products and manufactured articles to buy. Kerr on Injunctions has well said: "Covenants in restraint of trade, though only partial, if nothing shows them to be reasonable, are presumed to be void upon grounds of public policy. But covenants in partial restraint of trade, where there is a fair and reasonable ground for the restriction, are good and valid. They are upheld, not because they are advantageous to the individual with whom the contract is made, but because it is for the benefit of the public at large that they be enforced." ******** Now, if your honor please, let us pause here a moment, for this establishes two or three particulars. In the first place, it estab- lishes that every contract, even in partial restraint of trade, no mat- ter how small the restraint may be, how limited in extent or in degree, or in kind, or as to person, or as to place, it is presumed to be bad. Standing by itself, without explanation, on its own face the law declares it to be bad. It must be shown outside of the restraint to be good, by circumstances established to the satisfac- tion of the court, upon which the court, expressing the judgment of the law, can declare it to be a useful and proper contract. In other words, all the presumptions are against this; and you cannot even presume against these presumptions. You cannot presume that there are benefits to be attained by the contract which over- bear the mischief from a restraint which the law implies. You may argue that there are reasons; you may imagine that there are STANDARD OIL COiMPANY CASE. 489 circumstances; you may invent conditions; you may suppose this, that and the other; but the law is inexorable. It says: "The man is restrained, and that is enough;" and until, as matter of fact, proof declares that that restraint is under such circumstances as to make it a useful and proper contract, the presumption of the law against its validity must have full sway and complete operation. Then the presumptions are all against the contract. In the next place, it is a question of law whether that presump- tion is overcome by proof of other facts. It is not a question for the jury; it is a question on which the court, out of the testimony, extracts the materials of its own judgment. Of course, the judge sitting in the case has the right to bring to bear upon it whatever other knowledge he may have, which is the common property of the public. But he starts out with what the law has declared, by virtue of its enactments from time immemorial, that restraint in itself and of itself vitiates the contract until it clearly appears otherwise, that this restraint is promotive of the public good. I refer your honors to a recent salt case of our own state, where the court says: "Prior to and up to the time of the execution of the agreement set out in the bill, the four parties were engaged in the grain busi- ness in the town of Rochelle, each on his own account, and in com- petition with the others. But after the agreement was executed all competition ceased. All the warehouses in the city and every lot suitable to erect a warehouse upon was controlled by the com- bination. Some were purchased and others leased, so that the combination formed effectually excluded all opposition in the pur- chase, sale, storage and shipment of grain in that market. Secret meetings were held in the night time by the parties to the contract, at which the price to be paid for grain was agreed upon, rates for storage and shipment fixed, in order that the public should be kept in ignorance of the plans and operations of this illegal combina- tion. To the public the four houses were held out as competing firms in business. Secretly they had conspired together and were working in a common cause in the sole interest of each other. The language used in the contract itself leaves no room for doubt as to the purpose for which the agreement was entered into, as a few extracts will show: 'Each separate firm shall conduct their own business as heretofore as though there was no partnership in appearance, keep their own accounts, pay their own expenses, ship their own grain, and furnish their own funds to do busi- ness with,' etc., reciting parts of the articles which I have 490 MODERN JURY TRIALS. read. While the agreement, upon its face, would seem to indi- cate that the parties had formed a co-partnership for the pur- pose of trading in grain; yet, from the terms of the contract and the other proof in the record, it is apparent that the true object was to form a secret combination which would stifle all com- petition, and enable the parties, by secret and fraudulent means, to control the price of grain, cost of storage and expense of shipment. In other words, the four firms, by a shrewd, deep-laid, secret com- bination, attempted to control and monopolize the entire grain trade of the town and surrounding country. That the effect of this contract was to restrain the trade and commerce of the coun- try is a proposition that cannot be successfully denied." Now it did not tend to restrain the amount of the trade of any one of the individuals; it only tended to restrain the discretion of each in the management of his own business. After quoting from some authorities on the doctrine of the law in restraint of trade, the court goes on to say: "While these parties were in business in competition with each other, they had the undoubted right to establish their own rates for grain stored and commission for shipment and sale. They could pay as high or low a price for grain as they saw proper and as they could make contracts with the producer. So long as competition was free, the interest of the public was safe. The loss of trade, in connection, with the rigor of competition, was all the guaranty the public required; but the secret combination created by the contract destroyed all competition and created a monopoly against which the public interest had no protection." They would not allow an account between the parties to settle as to what had been done under that; so sustaining both the Penn- sylvania case and the New York case as to the effect of the illegal- ity of a contract upon past transactions. The case deserves special consideration in its application to the one at bar, for the reason that it is entirely similar to it in respect to one of the most marked and significant features, and that is as to the manner in which the parties operated under the contract, under the joint injunction of secrecy. Here, as there, the Standard Oil Company and the firm of Scofield, Shurmer & Teagle had been, prior to the twentieth day of July, 1870, engaged for itself in this business of refining oil, independently, separately, adversely, in rivalry, in competition with each other, each one seeking to advance its own interests in its own way, according to its own judgment and STANDARD ©IL COMPANY CASE. 491 applying to its own business all the resources of its own capital, intelligence and energy. , Now, they make this contract, and the first stipulation in it is that it shall be kept secret from the public; that each of the two parties shall continue to march and fight under its own flag as before; that they shall not appear to have ceased competition each with the other; but, on the other hand, that they shall appear to the public to be actively engaged in the ordinary competition which always rules between persons engage in the same business. More than that, special and particular methods were adopted for preserving their secret. A false account was opened on the books of these defendants in order to conceal the nature and origin of the transaction from their own bookkeeper and all their agents and employes; and in the name of that account, false and fictitious checks were drawn, bills were made out and balances struck. And more, that in order that the correspondence of the parties should not be known even to those who might casually open letters addressed to the firm, or might be authorized to do it, a particular postoffice box was hired in a false and fictitious name, and to that name were addressed all communications from the Standard Oil Company on the subject of the operations, deposited in that post- office box and taken out only by those who were in the secret, and who were bound to keep it. Why was this, if his was a legitimate contract, if it was up to the ordinary course of business, if it was done for the promotion of a useful and honest purpose consistent with the public interest? Why was all this veil of secrecy so closely drawn on every transaction involved in the operation of the parties? I can understand why any business house should desire chat its transactions and operations should not be made pub- lic property. I can understand that the communications between partners and between the heads of a business house and their employes, their clerks, their agents, their bookkeepers are confi- dential — because there are matters of privacy that are attendant upon the transaction of any business which those conducting the business have a right to conceal. But this was to conceal a trans- action from people who, if it had been done in the ordinary course of business, would necessarily have known of it. This was out of the ordinary course of business. Here was something done, not for the legitimate protection of the interests of the parties, consid- ering those interests in the light of a part of the public interests, but it was a device for the purpose of deceiving the public, of making the people, who were the customers of these parties, believe that they were dealing with men who were themselves dealing with 492 MODERN JURY -TRIALS. each other at arm's length; who were opposed in interest by the principle and operation of the law of compensation; who were rivals in business; who were hostile in trade, instead of being com- bined and confederated together as they were under the bonds of this contract, kept secret in this way, and wherein it was provided that the amount of production was to be limited in order that one party might be able to dictate a profitable rate in the market, and so control the price of an article of "prime necessity." Therefore this contract comes under the condemnation of the Supreme Court of the state of Illinois, in the case which I have just read, on the ground of its being a secret combination to do, in that case, what they might lawfully have done; for if all the grain dealers in the town of Rochelle had met every morning and agreed that for that day they would sell their grain at such and such prices, they might have gone on and sold and the transaction would have been legiti- mate; but they could not make a bargain to bind themselves so that no one dealer could withdraw whenever, in his judgment, his own interest or that of the public dictated that he should. Mer- chants do congregate day by day at places of public exchange, and there they do fix the market price for the day of their articles; but any man has the right to sell above the market price, if he can find anj' one to buy, and he has the right to sell below the market price if he chooses to do so; and, although he may agree with all his brethren in the business not to sell either above or below, it is a bargain from which he has a right to recede and his consent to which he may retract at any time, induced either by considera- tions of his private interests, or by any other motive that he may choose to permit to govern him. It may be said this is not a partnership. It says on its face that they are not to be partners, that it is a joint agreement. If your honor please, calling a thing by a name does not make it a thing other than it is. Whether or not it is a partnership depends upon the actual relation of the parties as established by the contract, and not upon what they choose to name it. But if it is not a partner- ship, then no argument can be drawn from the fact of a partner- ship against the contract as being one in restraint of trade. If it is a partnership, then it is equally open to the same objection, for the reason that the restraint is not imposed upon the party for the benefit of the mutual and joint interests which are consecrated by the agreement itself created. * * * * And now, if your honor please, it only remains for me to sum up the substance of the points on which I rely. I say, that on the STANDARD OIL COMPANY CASE. 493 supposition that this agreement is a valid agreement at all, an injunction will not be granted to enforce the specific performance or to prevent a breach of the covenant in restraint of trade, which is here alleged as the ground of the action ; because, in the first place, the contract itself is such a one as a court of equity will not countenance and favor, because it is hard, oppressive, unequal, unjust and unfair, as between the parties to it ; because, in the second place, it requires the s«pervision of the court to be exer- cised over the personal conduct of the parties ; for the court will not execute it in part and leave it at large in part ; they will not, for the benefit of one party, enforce specifically the execution of one part of the agreement when they see from the terms and tenor of the rest of the agreement that it is incapable of being enforced as against them, requiring the court constantly to intervene for the purpose of controlling and regulating the personal conduct of the parties who have upon them the execution of the agreement ; because, in the third place, the damages which may be recovered at law, if the contract be valid, are a complete, full and perfect satisfaction for the injury complained of, which can be arrived at by a mere arithmetical computation on the whole profit of the excess which it is forbidden by the contract to produce ; because, in the next place, there is another adequate remedy, and one which the jjarties have supplied, and that is a termination of the contract by the voluntary act of the parties themselves. In other words, they are asking your honor to enter a judgment against us in advance of the trial of the case. Now, where an injunction is sought in a preliminary stage of litigation for the purpose of preserving the status in quo, of protecting property which might be wasted, of preventing the commission of some act of irreparable damage and injury, I can understand why it is made — in order to preserve in existence the subject-matter out of which the rights ultimately to be adjudged grow. But where the object of the application is to obtain only that, and that altogether, which constitutes the very essence and scope of the entire judg- ment finally to be rendered, it seems to me that the court ought to withhold its discretion in the granting of such an injunction, except in a case where it can see in advance that it must ultimately decide the case on its merits in the same way and on the same side. If your honor entertains a reasonable legal doubt as to what will be the ultimate issue on the trial of the case upon its merits, then I say it would be a harsh, a very hard thing to stop the business of these defendants in the interim, and to require them to suspend their operations and put an end to their manufacturing in the mean- 494 MODERN JURY TRIALS. time, until it might finally be decided whether or not they would have the right to go on. They are the parties, then, that might complain of the irremediable injury which no recovery on an injunction bond would adequately compensate. He prevailed. THE PAGE IMPEACHMENT CASE. In t?ie Senate of Minnesota, 1878. The very elaborate and interesting argument of facts, and able and ingenious exposition of law, in this class of cases, has seldom been handled in a more logical, convincing and entertaining man- ner, than was this case by ex-G-overner Davis, of St. Paul, Minn. The impeachment trial of Judge Sherman Page of the tenth judicial district, occurred just after the riots of Pittsburgh and other cities, when the public interest in such facts was at a high pitch. Gov. Davis has embodied an exhaustive and masterly review of the whole range of pi-ecedents in a novel and eloquent appeal to the common sense of the Senate, as well as an able defense of judicial dignity. The speech in full covers 113 pages, but published separately for such as require more than is here reported in brief. Full extracts of each department are given, to enable the reader to follow the facts and digest them as they appear through the argument. It will be observed that the Judge deals in all varieties of illustrative stories, epigrams, and happy periods, that kept the senate often in laughter and always in excellent humor. As a legal argument it is unique, for the resting places are set, like mile-posts, all along the road of his reasoning. speech of ex-goveknor davis for respondent. Gentlemen op the Senate : The articles of impeachment exhibited by the House of Repre- of the State of Minnesota against the respondent, have been fully heard upon the proofs. All incidental questions have been set for- ever at rest, and have passed into precedents which will survive every person who witnesses this solemn proceeding. The clamor- PAGE IMPEACHMENT CASE. 495 ous voices of comment are hushed, the myrmidons of hatred are now awed into expectant silence, the voice of affection has died away into silent and secret prayers to the God of justice, at this moment, when prosecutors and accused, friends and foes, stand in the presence of the law, whose embodiment you are, to hear her final words. This is the moment when counsel assume the exercise of sacred functions. The strategy of this contest has done its work, and he who yesterday was rightfully contending with every weapon which he could draw from the arsenal of offense or defense, is now consecrated to the duty of guiding blindfold justice along the sacred way. I pause before the task ; would that it were in stronger hands than mine ! The power of the state, when concentrated against an individual, is of almost resistless efficacy. The condemnatory forces of society converge upon him in every open, in every occult form. This is true, even, in prosecutions for minor offenses, where the person is accused and tried by a social fragment of that great aggregation which we call the state. Even in such cases modern civilization has inherited some of the reproaches of darker times. The citizen who falls into the clutches of an indictment finds it hard to restore himself to the place from which it drags him. Consummate legal ability arrays itself against him. The executive officers of the law are his antagonists. The limitless resources of the public treasury subsidize his prosecutors. The active hostility or the cold aversion of his fellow citizens breaks down his courage. The law which confronts him as his opponent, out of its omnipotence listens lan- guidly before it strikes a few cold, defensive maxims, often of as little efficacy as a Tartar's windmill prayer. But aided by them he is not wholly defenseless. Revered principles which are without beginning of days in the law speak with peremptory voice in the assertion of certain constitutional rights which are his, and which no court can take away. They ordain that he shall be tried under salutary forms ; that he shall be informed of the nature and cause of what he is accused; that he shall be presumed innocent until the proof that he is guilty seals up every avenue of presumption that he is innocent. Such principles as these walk with him through the fiery furnace of his trial like inseparable angels of deliverance. But in proceedings like this we have been most feelingly admon- ished that many of these safeguards, inadequate as they often are, are not for this respondent. Counsel have invoked into this trial the clamor of the newspapers. Counsel have appealed to the result of elections in a county whose turbulence now finds its last 496 MODERN JURY TRIALS. disreputable expression on the floor of this Senate. We have been informed that this is a political issue. This court has put us to the ordeal of accusations which do not accuse, made by accusers who have no rightful power of accusation. The respondent has been compelled to defend himself against charges of which the House has absolved him, and against other charges which that body never saw. With some acts he has been accused by the House ; with others he has been charged by the accusation of those who have no more power to do what they have done than they have to break the apocalyptic seals. He has been compelled to defend at once himself and the consti- tution itself which has been assailed in his person, and to be the victim of a paradox which will be a puzzle to after-times. The men of years to come will ask when it was that constitutional safe- guards so vital and so plain were overthrown ; antiquarians will quarrel over the issue whether and when the House of Representa- tives as an impeaching body ceased to exist, and when its functions were merged in a select body of usurpers turned managers. In ordinary cases a person accused of crime finds the legal ele- ments of his defense in the statutes and the text-books in which it is defined, and it is the duty of the public prosecutor to bring him clearly and entirely within the limits of those definitions. But we are told that the respondent is to be tried for crimes which are nowhere defined, which no statute has declared, upon which no text writer has commented. He is accused of breaches of taste and decorum ; he is on trial for acts which society may visit with social censure, yet over which no court from the highest to the lowest, excepting this, has ever yet coveted or had jurisdiction. Standing here for a judge thus assailed, defending the constitu- tion thus attacked, striving to replace precedents thus rudely pushed from their pedestals by the iconoclastic rage of the real prosecutors of this judge, I do not regard myself as speaking on this day for my client alone. Momentous and far-reaching as the consequences of this prosecution have been and may be to him, the effect of this proceeding to my mind, goes far beyond him and embraces persons other than he. I speak to-day for the judicial office ; I speak to-day for the integrity and independence of the judicial department of this government. It will be my endeavor on this great occasion to ward off from that department the pro- faning hands which have been so rudely laid upon it. I have been bred and brought up to regard that department as sncred. The philosophy of our institutions has placed it in theory above the influence of popular faction, clamor and distrust. Con- PAGE IMPEACHMENT CASE. 497 sider for a moment, Senators, the position in which a person placed in the office of a judge finds himself. No matter how active his temperament may be, no matter how decisive his executive ability, no matter how clear his convictions as to what ought or ought not to be in the community in which he lives, yet by public sentiment he is sequestered and set aside from interference with very many of the concerns of daily civic life. He becomes a legal monk as to secular affairs. If he is assaulted in person or character, it is gen- erally deemed unseemly for him to resent ; if he complains he is liable to the imputation of mingling in concerns from which his office should absolve him. If he is assailed upon the very seat of judgment by acts which derogate from the majesty of the law and the dignity thereof which he represents, this proceeding demon- strates that any effort which he may make to protect that which society holds most sacred, is to be deemed a criminal act and a cause of impeachment. How naturally we appeal to that embodied conscience of states ! When all else seems to be going to wreck and chaos, to what do men turn ? To the judiciary. There is that, men say, which administers the law of abstract right; there is that, which, if any- thing can, will save us. Only a short time ago, when this nation hung trembling upon the verge of revolution and dissolution, when the will of the people as expressed at the polls in a presidential election was doubtful in its results; when accusations of fraud were exchanged from all sides; when the premonitory roar of enraged parties was threatening anarchy; when Congress seemed power- less, and the term of a President was about to expire; when all was uncertainty; when business languished, and every patriotic heart almost ceased to beat in the presence of a great wrong threatening a great danger, the American people, by an instinctive effort, not made within the limits of any strict construction of our constitu- tion, organized a tribunal to settle that great controversy, and in a moment the proud waves of revolution were stayed, and the light of peace poured like a sun-burst over the darkened land. * * * I desire to be further heard for a moment upon the correct con- struction of this phrase, "corrupt conduct in office." Of course I do not intend to argue here, I could not do it with any assurance, that the words "corrupt conduct in office" as used in the constitu- tion do not mean every kind of corruption. That is not the mean- ing. A man may be corrupt in his office in many senses outside pecuniary corruption. It means corrupt intention in the execution of official duties. It means not only doing wrong, but it means doing wrong wickedly intending to do wrong. If a magistrate- 33 408 MODERN JURY TRIALS. does wrong thinking that he is doing right, he is protected in what he does by every law which the wit of man has ever enacted. If he does right, why of course the question of intent is wholly imma- terial. Judges may be punished by impeachment, but it must be for oppression and tyrannical partiality in the administration and under color of their office. (4 Blackstone, p. 141.) The only occasion upon which the legislature is authorized to lay its hands upon the judiciary or on the executive, is when a mem- ber of either of those departments has committed a crime or misde- meanor, or has been corrupt in office. Was not that language used thus guardedly because the legislature had just adopted a provision that these departments shall be independent, and that no member of one shall infringe upon the functions of the other ? But if this doctrine which you are asked solemnly to write in a book, and give down to recorded time, is true, then I say that the executive and the judiciary are at the mercy of the legislative department of this government. For if it is true that this is a great political inquisi- tion, that its object is, and only is, to get rid of somebody who is not liked, or of some one who has been guilty of a breach of decorum, who confessedly has committed no crime, then I say no reins can be put to the unbridled audacity of any House of Repre- sentatives which may accuse, or any Senate which, may convict. With the observance of the construction which I have advocated, the way is clear, and easy. The governor sits securely in his seat of office; the judges sit securely upon the bench of judgment; they are impregnable. * * * This is the settled law : "That judges and jurors do nothing carelessly and maliciously; that the decisions of courts of competent jurisdiction are well founded, and their judgments regular and legitimate; and that facts, without proof of which the verdict could not have been found, were proved at the trial." Therefore it is not necessary for this respondent in regard to any of these charges by which it is alleged that he has made a mi^-take, and because he has made a mistake, that therefore it may be inferred that he is criminal, to enter into an elaborate defense in advance to show that he was right. These records which have been produced here of proceeding after proceeding, jurisdiction once being conceded or proved, stand enveloped in the presump- tion that the decision which was made upon them was right. And I might say here, for fear I shall forget it in a more proper connec- tion, that the presumption is much strengthened in this case by the PAGE IMPEACHMENT CASE. 499 fact that none of these records wherein he is alleged ,to have erred, were ever removed from his court to a court of final revision. Stimson has never taken up any of the records, there was no cer- tiorari made on that order of the judge that Stimson should pay the fees into court. The Riley case was never appealed. There was no appeal, and hence the presumption becomes stronger. * sfc Jir % JK 5)e $ Our fathers well knew that the man who is accused of crime fights with society banded against him. It is a matter of common observation that that is so. Friends fall off, resources fail, the public print may be full of exaggerated statements against him, there exists that universal feeling of distrust which leads us all to avoid a man who is accused. Hence sprang up that merciful maxim that a person accused of any offense, be it high or low, is conclusively presumed to be innocent until he is proved guilty by such a weight of evidence as shuts the avenue of every presumption in his favor. He must be proved guilty beyond a reasonable doubt, beyond the last reasonable doubt which can arise in the mind of any rational person considering the case. Doubt, not only as to the act, doubt, not only as to the intent, but doubt as to the motive, doubt as to each element of the act. And if, after hearing all this testimony — even supposing and conceding, for the purposes of this branch of the discussion only, that there is anything here which calls for the'invocation of that maxim — if there should be in the minds of any of you, after this discussion has closed, a doubt made apparent by a scintilla of reason, whether this respondent did not think he was acting within the duties of his office, whether he was not promoting the welfare and good order of society, whether he was not subserving the cause of common honesty, whether he was not preserving the dignity of his office and the law of the state as it stood there, embodied in and administered by him; if in your minds there exists a reasonable doubt as to any of these proposi- tions, then I say he must go quit. Take your own cases, sitting here as judges, sitting as senators in your judicial capacity. How often, undoubtedly, during this trial, must have occurred to you grave questions weighing solemnly and heavily upon your con- sciences. Some of you may have some prejudices against this respondent, and are striving with them yet; some of you may have some prejudices in favor of this respondent, and are striv- ing with them yet. But under the circumstances, gentlemen, can you not appeal to your own consciences, and say: " If I do the best I can with the lights which I have, and with the infirmi- ties with which Almighty God has laden me, He will not hold 500 MODERN JURY TRIALS. me responsible, nor can society ? " He who is made a judge is not by that act translated into perfection. He goes to the bench with the same infirmities that he had in the walks of daily life. He struggles against them, as you here must struggle against them, and as you must in other capacities, if you do your duty. Your constituents knew what kind of men you were when they sent you here. His constituents knew what kind of a man he was when they elected him to be their judge. Nearly six years of his term have rolled around. That he has administered justice impartially between man and man, is not denied. His bitterest enemies come here and say that when he holds the scales of justice, their preju- diced eye cannot see that it turns a hair. What private suitor is here, man or woman, to claim that he ever has removed the land- marks of property or decided wrongfully in a case which involved private rights? All these cases wherewith he is accused, are where he has acted for the state of Minnesota in his public capacity against transgressors. His hand is as clean as an angel's of bribery. It is not pretended that he is not the justest man that sits upon any bench in this state. I say, therefore, that his counsel have a right to envelope him in the presumptions, first, that he has decided legally, and, secondly, to ask you to give to him to an extent never given before to any person accused, the benefit of that other pre- sumption — that until he is clearly proven guilty, until he is clearly shown to be a criminal in the very w r orst and lowest sense, he is not amenable to the extreme penalty which the constitution of this state pronounces upon persons in his situation declared to be guilty. It is a matter of common history that that was a time when the public mind was peculiarly feverish and susceptible upoD the sub- ject, whether the railroad corporations of this state and throughout the country had not acquired such a dominant position over public affairs and public men, as rendered their existence exceedingly dangerous to the body politic unless restraints were put upon them. At that time no more dangerous charge could have been made against a public man — no more heinous charge could have been made against any judge, than, at that moment, when not only this state, but the entire community of the Union was lying in a sense of apprehended danger from the encroachment of bodies politic upon the rights of the people, to accuse him of corrupt alliances with, or corrupt decisions made in favor of a railroad corporation. Accordingly, shortly after Judge Page took his seat upon the bench, we find that this man Mollison, apparently without any pro- vocation, appears in print, in a public journal, printed in the city of Austin, wherein were set out the nauseous details of that libel, PAGE IMPEACHMENT CASE. 501 accusing this respondent of " plowing with the railroad heifers," with corruptly deciding in favor of the railroad, a certain question in regard to taxes, by which, as the libel said, $50,000 would be lost to the county of Mower. That was the libel; that was the charge made against this untried magistrate — a man scarcely firm in his seat — of making a decision which, in the slow progress of the administration of justice, the Supreme Court of this state, some four years afterwards, affirmed. That there was any excuse or vindication for this libel, no man has arisen in his place with hardi- hood enough to affirm. That it was an atrocious lie was demon- strated by the abject retraction, which was afterwards published. That it was malicious, speaks trumpet-tongued from every line of it; that it was intended to break down this respondent and destroy his usefulness in the inception of his judicial career, will, I think, be made abundantly manifest before I close my argument upon another branch of this particular case. Mr. Mollison was arrested, and it is in proof by the officer who arrested him, that when he took him into his custody, informing him of that for which he was detained, instead of expressing any surprise or any contrition for his crime, he threatened to do just as he did afterwards in that court room to " make his tongue ring" against the respondent. Mollison is brought into court. He is arraigned at the bar. Any man with the least impulse towards decency would have acted dif- ferently. The district attorney read the indictment; Mollison was listening, and when the officer arrived at that part of the indict- ment which contained the words in which this malignant libel was set out, this man began to nod. The body of the county of Mower was there, the grand jury was presumably present; the best citizens in that community were there seeing their neighbor enter upon the yet unattempted task of his judicial position, and this impudent and infamous libeler, standing in the presence of justice, instead of behaving himself with a decorum which few men are so abject as altogether to lose the sense of, reiterated his libel by nodding his assent to it when it was read to him for the purpose of obtaining his plea. Under my construction, the respondent's decision of the case was correct. The statutes make the judges, for certain purposes, the guardians of the public treasury. The respondent did his duty in vacating a stipulation which made an attack upon the treasury under a false statement of what took place in court and of its records. Courts take judicial notice of their records and proceed- ings. I do not know, gentlemen of the senate, what there was 502 MODERN JURY TRIALS. wrong in the respondent going before the commissioners and-tell- ing them, at their request, what was a fact. We all know that in outside districts much more freedom of intercourse exists between the judges and the citizens than perhaps does in the larger places. How natural it was for honest old Judge Feleh, in the recess, when a disputed question of fact came up, to say, " I will go up to Judge Page's house and have him come down here, and find out" — not what the law is, but " what the fact is." The law was plain enough, and there was no dispute about it. I venture to say that there is not a district judge in this state who is not from time to time called upon by persons of co-ordinate branches of the govern- ment, exercising their functions of office to tell what has taken place in his court. Pie generally does it without objection; it. is done without impropriety. And when Judge Felch became alarmed at what seemed to be a steal upon the treasury of the county, he went to ask Judge Page what the fact was. The respondent might have been more circumspect, he might have been more prudent, but he went there in the full consciousness that he was doing nothing wrong. And when the fact was asked him, he told the commissioners just as he understood it to be. These indictments, gentlemen, were consequences of that riot, which this senate has solemnly decided it will know nothing about, which took place in the city of Austin in 1874. I stated there was a riot there. I have an impression that something has been said about it in this court. It has been more than darkly hinted several times here that there was a riot in the city of Austin, and it appears of record here that these men, Beisicker, Walsh and another, were indicted, as among the rioters. They were indicted at the September term, 1874. Whether they were arrested at that term or not my memory does not serve me, but I will venture the assertion that the demurrer was put in at the term at which the indictment was found. The March term of 1875 comes around, and no notice having been made, no issue of fact joined, what do we find ? We find French and Cameron joining hands in iniquity; they make up their minds "to put up a job " on the county treasury, and Hall and his deputy, Riley, join hands with them. Mr. French, without any consultation with the court, took out subpoenas for the state, and Mr. Cameron, without any leave obtained, as would be necessary in Judge Mitchell's district, ordered his respective clients to take out subpoenas for the defense. French takes out subpoenas for the state, for the witnesses "to be and appear and testify in a certain issue of fact " which had not been formed, and Cameron directs his PAGE IMPEACHMENT CASE. 503 client to take out subpoenas for "the within named witnesses to be and appear and testify concerning certain issues of fact" which had not been formed ! This was a double-handed theft, and how many witnesses Hall subpoenaed on behalf of the state, God only knows — this record don't show. But it is a moral certainty that that unregenerate Riley subpoenaed ninety witnesses on behalf of the defense, to appear and testify in an issue which had not been formed ! More than that : although this matter was depending upon a demurrer, and he had subpoenaed ninety men, he did not have to go for any of them outside the corporate limits of the city of Austin, and I don't suppose the precious Hall had to go any further for his covey. It would not be expected that Riley, the deputy, could subpoena more witnesses than Hall, the sheriff. It would be gross insubordination to do so, and I take it for granted that Hall was not surpassed by his deputy in that respect. And so these ninety men are subpoenaed to come and testify upon an issue of law ! And who do you suppose were in those subpoenas ? Why, the very defendants themselves were sub- poenaed as witnesses in their own case, and Riley taxes his fee against the county. And after Tom Riley had searched and raked as with a fine-tooth comb the city of Austin for witnesses whom Hall had not captured, he turns around and subpcenas himself! Having performed that automatic feat, he naturally looks around for other worlds to conquer, and it occurs to him that there still remain two individuals whom he has not grasped within the comprehensive powers of the subpcenas which he held, and so he subpcenas Cameron and Crane, the defendant's attorneys. And I have no doubt that Hall subpoenaed French. Now, that is the transaction, gentlemen. I am making no mis- statements, no exaggerations here. Those subpoenas are in this court, those names are on the back. This is the transaction, in all its original, unvarnished cussedness, just exactly as I tell you. And Judge Page is to be impeached, because, hating a thief — knowing one when he sees him — he doesn't, perhaps, round all the sharp corners of the law, but cuts across-lots after him with a club ! A conversation never can be understood until the whole of it is given, and in the intercourse which took place between Judge Page, Mr. Mandeville and Mr. Allen at that bench, it is not impos- sible that that question may have been asked, " what work did you do for Mr. Hall that he should appoint you deputy ? " I don't believe it ever did, but if it did what is there wrong ? What is thereof judicial corruption necessarily inherent in it? What is there in it worthy of being dignified by such a prosecution as this ? 504 ■ MODERN JURY TRIALS. If words proceeding from the mouth of magistrates or any person, are susceptible of two constructions, one innocent and one blameworthy, not only the law of charity but the law which is administered in the courts, imputes to that language the innocent meaning. Is there any feeling of hostility shown here against Mr. Mandeville or attempted? Anything to show that this judge was not acting magisterially on that occasion ? Was he reaching his hand into the treasury to help anybody pilfer therefrom? ■The statute imposed upon this respondent the duty of fixing the per diem of such deputies as the sheriff might appoint under his order fixing the number. Mr. Mandeville appeared before him as a claimant — he had to decide it. Did he decide it right or did he decide it wrong ? The duty was upon him to decide that little case ; the parties were before him — they were heard. And upon any theory, whether for prosecution or defense, he told Mr. Man- deville that he could not have his pay because the condition prece- dent, which the statute in guarding the public treasury had made indispensably necessary, had not been performed. It is a new doctrine that, if money be paid in to a sheriff or the clerk, and sheriff or clerk embezzles it, the party wronged is to be driven to his circuitous action of assumpsit against a man con- fessedly a thief. Take our courts of record in a place like this — there are hundreds of thousands of dollars on deposit in the regis- try of courts for railroad condemnations, or as assets in bank- ruptcy ; the officers of the court have this money ; they must check it out upon the order of the court. Supposing that a person entitled to a sum under those circumstances, brings to the clerk the order of the presiding judge, and the clerk says, "I — I — I haven't got this money — I — I have disbursed it — I have sunk it." "What in all time have all courts done with such culprits? They have laid their hands immediately and heavily upon them, and made them disgorge ; they have the right to do it, and it is their duty to do it. Let any one who has any curiosity remaining on that subject step over into the supreme court room and ask for the record in the case of Gronlund, an attorney of that court. It was charged against him that he had embezzled and refused to pay over the money of a client. He was cited before that tribunal ; he made his explanation, such as it was. It was adjudged a high contempt of the courts of this state ; he was ordered to refund it, and he languished in the jail of Ramsey county as a penalty for his crime. There is no trial by jury in such cases ; none is necessary, the exi- gencies of public justice do not permit it. The supreme court of PAGE IMPEACHMENT CASE. 505 this state did not err in that matter ; it is a plain jurisdiction, given by the statute over all its officers, attorneys as well as others. There are two other proceedings of the same character pending in the court to-day ; and there is not a district judge in this state, who has not, in the course of his administration of justice, been compelled, with a temperate yet firm hand, to execute the process of contempt upon the derelict officers of his court. The respondent has made in his answer, full and sufficient reply to everything charged against him worthy of a moment's attention. He avers, in the first place, that he is the judge of that judicial district; he avers, in the second place, that for days there had been a riot in the city of Austin; that danger to life and property were apprehended; that meetings were held in the houses of citizens to devise means for public protection; that the streets of that town were guarded by patrols; that the sheriff had been inadequate and insufficient in the performance of his duty when requested by the mayor of the city to arrest the rioters. The respondent also alleges that while this insurrection against law and order was flagrant, he was called by the duties of his position from Austin to Preston to hold a term of court ; that the riot renewed or rather continued ; that danger to his family was apprehended, and he was summoned by telegraph, to put into execution the undoubted powers which inhered in him ; that he did write a letter to the sheriff of that county — as I shall demonstrate he may have done, must have done and should have done — instructing him under the right he had to instruct him, that he should preserve the jneace in manner and form prescribed by the statutes. * * * The fact is, that this deputy sheriff went down there, engaged in a cow trade and took a bribe from Mr. Weller that he would not levy upon his cattle but that he would give him a chance to sell a cow so that he might steal $5.60 out of the proceeds of that live stock transaction. And the respondent is to be impeached. It was a criminal act that Stimson had committed. He had besides made himself civilly liable to three times the amount which he had collected. He was an officer of the court ; the process of the court had been used in trading cows — squeezing this $5.60 out of the county of Mower. It was a flagrant contempt of court. The more contemptible because it was so insignificant — a little, dirty steal ! Was the respondent wrong in taking an officer of his court to task for conducting the ministerial duties of his position in that manner? The grand jury investigated it. They made a formal presentment; the court called Mr. Stimson before it. An investi- 506 MODERN JURY TRIALS. gation took place (as I shall show in a moment by an examination of testimony), and Stimson admitted every one of the facts charged without objection, exception or reservation, and as I shall maintain, without asking any further hearing than he had. Why, he was just like any other little thief caught with the money in his hands — he admitted it ; he was willing to disgorge. There sat the grand jury before him — there was Mr. Weller in court, liable to be imprisoned again if Stimson was allowed to hold his money in this way. It is only a part and parcel of the way these men down there in Mower county treat the public treasury. He made no objection. He was requested to pay over the money so that the grand jury might see the process of deglutition reversed, and he walked up and did it. Now who will say that the action of the respondent was not right, and morally right ? I may admit that he might have traveled the technical zig-zag of assumpsit or indict- ment, but he was not bound to do it in the case of an officer of his court. If my proposition is true and my law is right, this man Stimson being a deputy sheriff, had neglected his duties ; he had been guilty of embezzlement. He had also laid himself liable to damages, and how was he to be punished? To be punished summarily — in some cases having an opportunity to be heard. He had such an opportunity. The grand jury had made their presentment ; it was read or explained to this man and he admitted it, as I shall show when I come to examine the testimony. Everything was done that he could have required to give him a hearing. This proceeding is as old as the common law, and has been exer- cised in parliamentary bodies. Precisely the same principle was considered by the supreme court of the United States in the case of Randall against Bingham, reported in the 7th of Wallace, page 539. The grand jury in that case, upon the strength of a letter charged that an attorney and counselor had been guilty of such a violation of his professional duties as to induce the supreme court of Massachusetts to call that gentleman before them, very much as Judge Page called Mr. Stimson, and it disbarred him after a very informal hearing, and he sued the. justice who disbarred him for damages, alleging, as Stimson does here, that he had no suffi- cient opportunity to be heard — possibly that he had not been indicted and convicted — that the law did not in stately ceremonial reach him in tangled ways. The case went through all the courts. Here is what the supreme court of the United States holds : " The informality of the notice, or of the complaint by the let- ter, did not touch the question of jurisdiction. The plaintiff PAGE IMPEACHMENT CASE. 507 understood from them the nature of the charge against him, and it is not pretended that the investigation which followed was not con- ducted with entire fairness. He was afforded ample opportunity to explain the transaction and vindicate his conduct. He intro- duced testimony upon the matter, and was sworn himself." Here Stimson admitted the act, just as the grand jury charged it. " It is not necessary that proceedings against attorneys for malpractice, or any unprofessional conduct, should be founded upon formal allegations against them. Such proceedings are often instituted upon information developed in the progress of a cause ; or from what the court learns of the conduct of the attorney from its own observation. Sometimes they are moved by third parties on affidavit, and sometimes they are taken by the court upon its own motion." Such is the opinion of the supreme court of the United States. That is not only the practice in all courts in com- pelling extortionate officers to give up extorted fees, but it has been the practice in parliamentary bodies, and it was once adopted in a case of a man who will be revered as long as the English language is spoken or understood. I read from the life of the Earl of Nottingham, on page 194, vol. 4, of the Lives of the Lord Chancellors of England. John Milton was thrown into prison in disturbances which followed the overthrow of the Commonwealth, and while he was there some ancestor of Stimson squeezed the poet for fees. With the advent of better times the laureate of Para- dise was liberated, and, having been committed under an order of the Parliament, the question of restitution was brought up. Lord Campbell writes thus: "As a lawyer, I blush for my order while I mention Finch's last appearance in the Convention Parliament. John Milton, already the author of 'Comus,' and other poems, the most exquisite in the language, after being long detained in the custody of the Sergeant- at-arms, was released by the order of the House." In 2 Bissell, 939, are the words: "A party who has been already tried, may protect himself against a subsequent prosecution for the same offense. He may do so by plea; it is a principle of our law that no man shall be twice tried for the same offense; if he has already been acquitted there is a known legal form of pleading as old as the law itself, by which he can defend himself. But it is settled by authorities coeval with the law itself." Our statute provides: "Section 1. The judges of the several courts of record, in vacation within their respective districts, as well 508 MODERN JURY TRIALS. as in open court, and all justices of the peace, within their respective counties, shall have power to cause all laws made for the preserva- vation of the public peace to be kept, and in the execution of that power, or for good behavior, or both, in the manner provided in this chapter." Who are these rioters? Men who capture trains, rob homes, ravish women, murder citizens, and who are rapidly, by some strancre social elective process, talcing unto themselves the forms of belligerent organizations. In our cities a wilder vagary has found expression. That which was formerly deemed to be an exotic, has been discovered to be indigenous, though heretofore dormant in our soil. In Chicago, in St. Louis, in New York, in every consid- erable city of this country, the horrid front of communism has been reared. It threatens the holy bounds of property. It has its organization, its design, its avowed purposes, and bears to the other portent the relation of fire to powder. Only last year the elec- tric thrill of one riot ran from the sea-board to the Mississippi river, and palsied the great arteries of commerce in a day; it sacked and burned the mighty city of Pittsburg; the great state of Pennsyl- vania, with its four millions of people, lay crushed in its folds, and the authority of the federal government was powerless for a time. With the coming of the harvest, there will sweep over the face of this state, bands of lawless men, unarmed now, perhaps to be armed in the future. From a sightly hill near the farm of the senator from Wabasha I venture to say that in two months, thou- sands of those men can be counted coming no man knows whence, and going no man knows where. And I say that in these times when such dangers are reasonably to be apprehended, the magis- trate who has the courage to command the sheriff of his county to execute the law by taking life if necessary — to tell the citizens that they shall be protected in doing what the law says they may do — deserves the plaudits and commendations of his fellow men, instead of being arraigned before a court of impeachment. This charge is a public danger, senators. A few men like Sherman Page might have saved the city of Pittsburg that day. There would not at least have been that abject cowardice, while millions of property and hundreds of lives went out of existence — and when I see a sickty sneer of incredulity upon the face of any man who lives far secluded from any danger of that kind, it makes me tremble for the justice of this court. This same question arose in a very interesting form in Ireland. In 1823, when the Marquis of Wellesley, I think, was the Lord Lieutenant of Ireland, a riot took place in the theater, of Dublin. PAGE IMPEACHMENT CASE. 509 In the course of that riot the person of the Lord Lieutenant was assailed. Missiles were thrown at him, his life was endangered. It was a riot which grew out of the feuds which have distracted that island for so many centuries. When the offense was brought to the attention of the grand jury, so powerful was the influences in favor of the rioters, that the inquest were prevailed upon to report that they found no cause of indictment, and they threw out the bill. The offense was so clear and the offenders were so well known, that Mr. Plunkett, who was then the attorney-general, filed an ex officio information, which is equivalent to an indictment, in the court of king's bench. Instantly the cry went up that because the rioters had just been absolved by the grand jury, the attorney- general was guilty of a grave violation of law in seeking to bring them before the courts for trial. And upon that occasion Mr. Plunkett, with great eloquence and great power of thought, vindi- cated himself before the Irish Court of King's Bench. [Here the counsel read the case at length.] Another was a case in Southern Illinois where the plaintiff alone appeared. But the case was ready for trial. The other attorney was sharp and eager to overreach, and the necessity of going to trial before the train arrived was great. Justice Davis told him such was his right, of course; he could go to trial, "but," said he, " we had just such a case as this down at Springfield the other day, the other lawyers were not there, and I was obliged to try the defendant's case for him, and, do you believe it, we beat ?" I have no doubt that lawyer thought that Justice Davis ought to be impeached. Judges have a paternal care over the interests of the public and the interests of suitors, and they have a wide latitude of discretion in their courts. To those persons who are at all familiar with the outside literature of our profession, such anecdotes as I have recounted are old and stale; they show what the power of the judge is to do right outside of any precedent which you may find laid down in the books. In ancient times, the powers of judges over juries were very extraordinary, very extreme. In regard to a verdict of a petit jury, if it was corrupt there was a judgment of attaint against every member. It is a most extraordinary judgment, as I extract it from an old law book, and it reads like an apostolic anathema: "It is adjudged that they lose the protection of that law which is the right of free men and be infamous for ever; that they forfeit their goods and chattels; that their lands and tenements be taken 510 MODERN JURY TRIALS. into the hands of the king; that their wives and children be thrown out of doors; that their trees be uprooted, their meadows plowed up, and their bodies cast into prison." Now, right here comes a conflict of testimony which I do not deem very material. I do not deem it very material in view of these facts, whether the respondent did roundly charge them with having violated their oaths, or hypothetically say that they might have done so, for, gentlemen, there was, on that occasion, by that jury, an undoubted violation of official duty, plain, clear, and palp- able. The weight of testimony in this case, juror after juror, the foreman, the county attorney, those who were present (I cannot enumerate them all), prove that Judge Page told that jury that of course he could not dictate to their consciences, but that if the facts were as they had reported them, and they had disregarded them, they had certainly violated their oaths; words he had the right to say, words which it was his duty to say. It was a false verdict; it was a false finding. When they reported to him that they had no further business, with the ink not yet dry upon that paper wherein 'they had presented a state of facts which required an indictment, they stood there self -convicted of gross malversa- tion in their duties, and it was the duty of any magistrate, who did not cower, as judges are too apt to do in these days of elective judiciary, before a diseased or complaisant public sentiment, to tell that jury, in the face of the public whose rights they had failed to vindicate, just what their conduct had been. If he had done less he would have failed in his duty, and that Sherman Page ever feared to do what he deemed to be his duty, no man has had the temerity here to charge. It is no unusual thing, gentlemen of the senate, for judges to treat the action of juries in such a way as this. My learned friend and I tried a case before Judge Melson, of the United States court, some time ago, and one of us got a most outrageous verdict. The court, without waiting for any motion from either party, set that verdict aside in the very presence of the jury upon his own motion, with some remarks not very complimentary. A madder jury than that you never saw. They were a great deal madder than Mr. Clough or I was about it. They were very clear for a few moments that the judge had transgressed upon their province. I witnessed a similar spectacle some years ago between Judge Dillon and a jury. An anecdote is told of Justice Grier of the Supreme Court of the United States, a fearless judge, who passed a long life in the pure and upright administration of the law. An action of ejec.ment PAGE IMPEACHMENT CASE. 511 for a farm had been brought in his court. Technically the plaintiff might recover, but actually his claim was a most unrighteous one. The jury brought in an unrighteous verdict, stripping the defend- ant of his farm; and the old judge, leaning over the bench, said to the clerk in the presence of the jury: "Mr. Clerk, set aside that verdict; I want this jury to understand that it takes thirteen men in this court to steal a farm." I have no doubt that plaintiff thought that judge ought to be impeached. Great, fatherly Mr. Justice Davis, now Senator Davis of Illinois, perhaps, should have been impeached for a little performance of his some years ago, in protecting a defendant who was in court without his lawyer when his case was called. ********** I desire to state, in the first place, senators, in regard to this charge, that although courts from the beginning of time have laid a strong, severe and relentless hand upon persons guilty of con- tempt, that, so far as I know, this is the only attempt which has ever been made to impeach any judge except Judge Peck for asserting and upholding the dignity of his court. By common con- sent, as well as by legal precedent, the courts of this country, for the purpose of protecting their dignity and of maintaining them- selves in the confidence of the people, are invested with an arbi- trary, direct and absolute power, not exercised through any jury, not exercised under any indictment — exercised frequently upon view. The necessities of the situation have also caused the intro- duction into this very narrow and restricted field of our jurispru- dence, the converse of the maxim that no person shall judge in his own behalf. A contempt of court cannot well be punished by another court; because it is necessary a contemptuous act toward the man in whom the court is embodied, and whose duty it is at once to protect himself and make an immediate example, and hence we find that, owing to the exigencies of the situation — the same necessity which suspends all law under certain circumstances, which establishes martial law in times of war, which abrogates all law in times of fire and riot — also confides to the judges a certain power which might be called absolute — if that word were not an offensive one to an American ear — but a power which, I will say, is exercised differently from that entrusted to them in the ordinary routine of judicial proceedings. It is also a proposition in the law of contempt, that great and extensive as it is over all the citizens of the community, it is much more rigorous and exacting over the oihYers of the court. When a person takes upon himself to become the ministerial 512 MODERN JURY TRIALS. officer of a court, he impliedly agrees, indeed he expressly stipu- lates, to assert its dignity, to preserve its decorum, to maintain its authority. In regard to the position of subordination to the judge in which he places himself, it is particularly to be said that he sub- mits to certain rules of discipline, not indeed regulated by the dis- cretion of the judge, but well defined by precedents. Mr. Stimson was such an officer of this court; he was a deputy sheriff; he was the ministerial and executive officer of this court. Through him the court acted. It is through the sheriff that the power, of the court is made manifest to the people, through its writs and pro- cesses. The judge, in his seclusion, has no executive power. He is simply seen and heard; he is never felt except through the sheriff who executes his decrees, and hence the importance of the rule that the executive officer of the court shall always maintain, instead of derogating from its dignity; that he, being that presence or mani- festation of the court most frequently seen, and which oftenest touches the community in the daily concerns of life, shall deport himself in such a manner as to certify to that community that the authority which he executes, the magistrate under whom he sits, is worthy of the confidence of the people upon whom and among whom the court administers justice and he executes it. It is unnecessary for me to say, with any elaboration of statement, that for any person, much more for a person occupying such confiden- tial and intimate relations to the court and to the administration of justice, to publish a libel upon the court itself, is not only a crime indictable, but a very gross and flagrant contempt. A sheriff who is so audacious as to strike a magistrate down upon the bench, would meet with instantaneous punishment at the hands of the court. The sheriff who should go out doors and make a noise in such a way as to distract the orderly and decent administration of justice, would be speedily stopped in his noisy manifestations. These would be most offensive acts of contempt. But the sheriff who inoculates the public through a newspaper or through a writ- ten document intended to be published in a newspaper, with the virus of contempt, which the judge, from the dignity of his posi- tion, cannot contradict or controvert, who puts in motion an agency which no human power can recall- — who sends forth into the air those spoken words which can no more be taken back than I can take back what I have been saying here for the last two days — who puts into execution processes of injury irremediable by any art! known to man, to be remembered forever — commits a more lasting insult to the court than he who strikes down a magistrate in his: beat of judgment. PAGE IMPEACIIMENT CASE. 513 Now that Mr. Stimson has had a libel in his possession, and had been conferring with certain conspirators in regard to it, is one of the facts in the case which has not been, and will not be, contra- dicted. That libel is as follows: "To S. Page, Judge of the District Court, Tenth Judicial District, Minnesota: "Sir— Knowing you, and believing that your prejudices are stronger than your sense of honor, that your determination to rule is more ardent than your desire to do right; that you will sacrifice private character, individual interests, and the public good to gratify your malice; that you are influenced by your ungovernable passions to abuse the power with which your position invests you, to make it a means of oppression rather than of administering justice; that you have disgraced the judiciary of the state, and the voters by whose suf- frages you were elected; therefore, we, the undersigned citizens of Mower county, hereby request you to resign the office of Judge of the District Court, one which you hold in violation of the spirit of the constitution, if not of its express terms." It is perfectly apparent, senators, from the appearance of Mr. Stimson upon the stand, that this stilted piece of malignity never proceeded from his brain. His pen never indicted it. It is the offspring of the cowardly malice of some person who knew better than to identify himself with it in public. It is a rank, overgrown and crude imitation of a certain style of calumny made memorable by Junius, and never yet reproduced with any degree of likeness by any of his imitators. Furthermore, this document was never intended to be presented to this judge; it never was presented to him as a matter of fact, After it had been circulated, the conspirators concluded, in the chaste language of one of them, "that there was too much hell in it," and they concocted another. But the one which I just now read was intended to be published through the county of Mower for the purpose of prejudicing the public mind and bringing the administration of justice into contempt. These men who conceived this project knew well enough that the charges which it contained are arrant falsehoods; that no pri- vate suitor, except Riley, in all the length and breadth of his dis- trict, could be produced who would say that, in regard to any suit, the conduct of this respondent had been other than most magisterial and just. They knew perfectly well that such men as Richard Jones, a man of magnanimity with all his hatred, and Mr. Cam- eron, a man of character, although the bitter enemy of the respond- ent, not speaking to him from a time long antedating his accession to judicial position, would state, as they have stated under oath here, that a more impartial man never sat upon the judgment seat. 33 514 MODERN JURY TRIALS. This document is an emanation from that same band of conspira- tors whom I purpose to dissect by and by; who form this overpow- ering public sentiment of which we have heard so much, and which has resolved itself into so little as far as the number of its individ- ual members is concerned. The time chosen for the circulation of this document was during a term of court. It was circulated, not only during a term of cour:, but it had been circulated before, and the question arose before the respondent, and was propounded to him by the very logic of the situation, whether he should sustain the dignity of his court against attacks of which this was a sample of many, or whether he should say, "I fear that this band of malefactors is too strong for me, too strong for the law, and therefore I will sit down and become con- temptible, and allow my court to become contemptible, in the eyes of the people among whom I administer justice." His position was one of great delicacy; it was one of exceeding importance. Does any senator suppose that if that libel had been circulated with impunity, other disgraces would not have followed? We have seen this respondent's house surrounded with these rioters, whom this senate has determined it will know nothing about; we have seen him libelled by Mollison and Davidson and Bassford, in 1873; and that libel suffered to gnaw at bis reputation like a vulture, for for five years. And now, at this time, after having been goaded in his judicial capacity and outraged as a private citizen, this respond- ent was confronted, not only with the responsibilities, but with the duties of his position, under a libel more calumnious than its pre- decessor, should he not do his constitutional duty ? * * * Let me read the words of another: "If in English history we inquire into the original occasion for these constitutional provisions, we shall probably find their origin in the abuse of executive authority, and in the unwarrantable intru- sion of executive agents into the houses and among the private papers of individuals, in order to obtain evidence of political or intended political offenses. The final overthrow of this practice is so clearly and succinctly stated in a recent work on the constitu- tional history of England, that we cannot refrain from copying therefrom." It relates only, as any senator may demonstrate for himself who examines the constitution on that subject in the light of history, to search-warrants for property, where seizure of the person is also included as a part of the act to be performed by the officer; and it ordains that it shall not issue upon the mere will of any officer, executive or judicial, and that it must contain a description of the PAGE IMPEACHMENT CASE. 515 persons to be seized and the places to be searched. But it applies only to these warrants, leaving the other questions of the adminis- tration of criminal jurisprudence to other provisions of the consti- tution and to common law safe-guards. If my learned friend's view is correct — if a magistrate cannot arraign an offender guilty of contempt without complying with that provision — then the whole chapter of contempt, as found in the statutes of Minnesota, is void; because we both agree that if the chapter authorizes any- thing, it does authorize the judge to proceed against the offender in some cases without any affidavit, complaint or process whatever. If his view is correct, then, also, is void the provision which author- izes any person to arrest another whom he catches in the perpetra- tion of a crime, or who is recent and warm from its perpetration. But the fact is, that these provisions were never held to apply to judicial proceedings for the enforcement of the criminal law, except incidentally and, in certain cases. They were never held to apply in cases of contempt, any more than in cases of contempt the pro- visions of the constitution were held to apply, which provides that in all cases one accused of crime is entitled to a trial by a jury of his peers. N"ow, we all know that a person who is accused of con- tempt is not entitled to a trial by jury. He is tried summarily by the magistrate. The necessities of society require that the courts shall be rendered respectable, and that at the same time the wheels of justice shall not be stopped or clogged in punishing offenses of this kind by the ordinary formal instrumentalities of judicial pro- cedure. ******** Nearly all of these articles of impeachment are so trivial as to seem, at first view, scarcely to warrant the serious discussion they have received. But as we have proceeded in our duties we have become persuaded that the danger in the charges is not what they allege, but lies in the principle upon which they are based ; that the danger is not to this respondent but to the public itself — for the spirit which inspires them all is the spirit of revolt against consti- tuted authority. It has appeared in that most dangerous form of an attack upon the judicial department of the state, upon its integ- rity, upon its independence. There is, after all, a wise conserva- tism in the people, and while they make and unmake with a breath the executive and the legislature, they instinctively refrain from subjecting the judiciary to the attacks of prejudice or disaffection. They do not require a judge to be popular. They require him to be honest and as firm as the system of law which he administers. They recognize the fact that there must exist in all forms of gov- 516 MODERN JURY TRIALS. ernment an ultimate principle of absolutism and permanency, an impregnable barrier against the fitful mutations of the hour, an inexorable expounder of those laws of self-preservation which pre- cede the formation of states, which preserve property, which secure liberty, which bear with unintermittent force upon the concerns of society with all the power of gravitation. In our system the judiciary is this principle. It is this cohesive principle of our sys- tem which is this day. attacked, in the person of a judge whose integrity has not been questioned even by his enemies. Our entire policy is thus assailed at its strongest point. If you destroy that which is most permanent, the efficacy and independence of the rest of the structure will fall in ruin without further attack, merely as the logical consequence of such a process. Is it not well for us to pause ? Rude usurpers, aggressive kings have paused at this decisive point. Shall we be less wise than they ? It is the prerogative of Shakespeare that whatever he stoops to touch becomes authoritative in quotation. He is the magistrate of both imagination and reason. There is scarcely a topic in the uni- verse of human thought which that marvelous mind has not com. passed in its cometary sweep. He has walked in the abyss of human nature and seen the thousand fearful wrecks, the unvalued jewels, and all the lovely and the dreadful secrets which lie scat- tered in the bottom of that illimitable sea. The maxims of policy, the rules of war, the subtleties of love, the patient forecast of hate, the pangs of remorse, the ready wages which jealousy always pays to the miserable being it employs — all things over which the mind or the nature of man has jurisdiction, receive from him their defin- ition and expression, excepting those awful topics of the hereafter, which, of all the children of men he, the greatest, has been too reverent to touch. He knew of the circulation of the blood. In instance after instance he has not only used the terms of the law with the strictest precision, but has stated its abstrusest principles with entire correctness. So wonderfully true is this assertion of his despotic empire, that conjecture, in its baffled extremity, has declared that the hidden hemisphere of this world of thought must be Francis Bacon, who, in his youth "took all knowledge for his province," as if it were his heritage. Shakespeare has created an immaterial universe which will, like him, survive the bands of Orion and Arcturus ami his sons. He peculiarly knew the limitations of power and authority, and enforced them by many constitutional illustrations. And in that respect he has presented no finer exposition than that one where he magnifies the sacredness of judicial authority in the scene PAGE IMPEACHMENT CASE. 517 between Henry V., lately become king, and the chief justice, who had formerly committed him for contempt. The old magistrate stood trembling before the young king, whose life had given no warrant of wisdom or integrity; for he had in his reckless days been the boon companion of Falstaff and his dis- reputable associates. Referring to his humiliation by the judge, the king asked, " Can this be washed in Lethe and forgotten ? " The judge interposed this memorable defense : *' I then did use the person of your father ; The image of his power lay then in me ; And, in the administration of his law, While I was busy for the commonwealth, Your highness pleased to forget my place, The majesty and power of law and justice, The image of the king whom I presented, And struck me in my very seat of judgment, Whereon, as an offender to your father, I gave bold way to my authority, And did commit you. 1 ' It prevailed, for the king replied : " You are right, justice, and you weigh this well; Therefore still bear the balance and the sword; And I do wish your honors may increase, Till I do live to see a son of mine Offend you, and obey you, as I did. So shall I live to speak my father's words^- Happy am I, that have a man so bold, That dares do justice on my proper son: And not less happy, having such a son, That would deliver up his greatness so Into the hands of Justice. You did commit me, For which I do commit into your hands The unstained sword that you have used to bear, "With this remembrance: That you use the same With the like bold, just and impartial spirit As you have done 'gainst me." Of all the illustrations which Shakespeare has given to authority, in its highest and lowest estate, I know of none finer than this. Not Richard sitting upon the ground and telling sad stories of the death of kings when all his fleeting glory seemed but a pompous shadow; not Prospero, the ruler of two realms, who by virtue of his sway over his immaterial kingdom looked upon the great globe itself as a phantasma merely, which would vanish with all its cloud-capped towers, and gorgeous palaces, and solemn tem- ples; not Lear invoking from the elements themselves the abdi- cated regalities of his sovereignty, seem to me so imposing as this semi-barbarous youth respecting the majesty of the law in the person of its faithful servant. 518 MODERN JURY TRIALS. Tou can bow before this mob. You can lead an attack which will be repeated upon every department of our government by all the blatent and riotous law-breakers of time to come, who may rise up in rebellion against statutes enacted for their condemna- tion, against magistrates who condemn them. Or you can make enduring the endangered functions of the state. You can quell forever that arrogant spirit of insubordination, before which no judge is sacred, no constitutional provisions are obstacles. Say to this respondent — " Therefore still bear the balance and the sword ; i