University of Virginia Library

17. CHAPTER XVII.

Earl of Essex.

Perhaps the most certain proof that any people can give of a
high moral condition, is in the administration of justice. Absolute
infallibility is unattainable to men; but there are wide chasms
in right and wrong, between the legal justice of one state of society
and that of another. As the descendants of Englishmen,
we in this country are apt to ascribe a higher tone of purity to
the courts of the mother country, than to those of any other
European nation. In this we may be right, without inferring
the necessity of believing that even the ermine of England is
spotless; for it can never be forgotten that Bacon and Jeffries
once filled her highest judicial seats, to say nothing of many
others, whose abuses of their trusts have doubtless been lost in
their comparative obscurity. Passing from the parent to its offspring,
the condition of American justice, so far as it is dependent
on the bench, is a profound moral anomaly. It would seem that
every known expedient of man has been resorted to, to render it
corrupt, feeble, and ignorant; yet he would be a hardy, not to
say an audacious commentator, who should presume to affirm that
it is not entitled to stand in the very foremost ranks of human
integrity.

Ill paid, without retiring pensions, with nothing to expect in
the way of family and hereditary honours and dignities; with

little, in short, either in possession or in prospect, to give any
particular inducement to be honest, it is certain that, as a whole,
the judges of this great republic may lay claim to be classed
among the most upright of which history furnishes any account.
Unhappily, popular caprice, and popular ignorance, have been
brought to bear on the selection of the magistrates, of late; and it
is easy to predict the result, which, like that on the militia, is soon
to pull down even this all-important machinery of society to the
level of the common mind.

Not only have the obvious and well-earned inducements to
keep men honest — competence, honours, and security in office—
been recklessly thrown away by the open hand of popular delusion,
but all the minor expedients by which those who cannot
think might be made to feel, have been laid aside, leaving the
machinery of justice as naked as the hand. Although the colonial
system was never elaborated in these last particulars, there were
some of its useful and respectable remains, down as late as the
commencement of the present century. The sheriff appeared
with his sword, the judge was escorted to and from the courthouse
to his private dwelling with some show of attention and
respect, leaving a salutary impression of authority on the ordinary
observer. All this has disappeared. The judge slips into the
county town almost unknown; lives at an inn amid a crowd of
lawyers, witnesses, suitors, jurors and horse-shedders, as Timms
calls them; finds his way to the bench as best he may; and
seems to think that the more work he can do in the shortest
time is the one great purpose of his appointment. Nevertheless,
these men, as yet, are surprisingly incorrupt and intelligent.
How long it will remain so, no once can predict; if it be for a
human life, however, the working of the problem will demonstrate
the fallibility of every appreciation of human motives.
One bad consequence of the depreciation of the office of a magistrate,
however, has long been apparent, in the lessening of the

influence of the judge on the juries; the power that alone renders
the latter institution even tolerable. This is putting an irresponsible,
usually an ignorant, and often a corrupt arbiter, in the
judgment-seat, in lieu of the man of high qualities for which it
was alone intended.

The circuit and oyer and terminer for Duke's presented nothing
novel in its bench, its bar, its jurors, and we might add its
witnesses. The first was a cool-headed, dispassionate man, with
a very respectable amount of legal learning and experience, and
a perfectly fair character. No one suspected him of acting wrong
from evil motives; and when he did err, it was ordinarily from
the pressure of business; though, occasionally, he was mistaken,
because the books could not foresee every possible phase of a
case. The bar was composed of plain, hard-working men, materially
above the level of Timms, except in connection with mother-wit;
better educated, better mannered, and, as a whole, of
materially higher origin; though, as a body, neither profoundly
learned nor of very refined deportment. Nevertheless, these
persons had a very fair portion of all the better qualities of the
northern professional men. They were shrewd, quick in the
application of their acquired knowledge, ready in their natural
resources, and had that general aptitude for affairs that probably
is the fruit of a practice that includes all the different branches
of the profession. Here and there was a usurer and extortioner
among them; a fellow who disgraced his calling by running up
unnecessary bills of cost, by evading the penal statutes passed to
prevent abuses of this nature, and by cunning attempts to obtain
more for the use of his money than the law sanctioned. But
such was not the general character of the Duke's county bar,
which was rather to be censured for winking at irregular proceedings
out of doors, for brow-beating witnesses, and for regarding
the end so intensely as not always to be particular in reference
to the means, than for such gross and positively illegal and oppressive

measures as those just mentioned. As for the jurors,
they were just what that ancient institution might be supposed
to be, in a country where so many of the body of the people are
liable to be summoned. An unusually large proportion of these
men, when all the circumstances are considered, were perhaps as
fit to be thus employed as could be obtained from the body of the
community of any country on earth; but a very serious number
were altogether unsuited to perform the delicate duties of their
station. Fortunately, the ignorant are very apt to be influenced
by the more intelligent, in cases of this nature; and by this exercise
of a very natural power, less injustice is committed than
might otherwise occur. Here, however, is the opening for the
“horse-shedding” and “pillowing,” of which Timms has spoken,
and of which so much use is made around every country courthouse
in the state. This is the crying evil of the times; and,
taken in connection with the enormous abuse which is rendering
a competition in news a regular, money-getting occupation, one
that threatens to set at defiance all laws, principles and facts.

A word remains to be said of the witnesses. Perhaps the
rarest thing connected with the administration of justice all over
the world, is an intelligent, perfectly impartial, clear-headed, discriminating
witness; one who distinctly knows all he says, fully
appreciates the effect of his words on the jury, and who has the
disposition to submit what he knows solely to the law and the
evidence. Men of experience are of opinion that an oath usually
extracts the truth. We think so too; but it is truth as the witness
understands it; facts as he has seen them; and opinions
that, unconsciously to himself, have been warped by reports,
sneers and malice. In a country of popular sway like this, there
is not one man in a thousand, probably, who has sufficient independence
of mind, or sufficient moral courage, to fancy he has
seen even a fact, if it be of importance, differently from what
the body of the community has seen it; and nothing is more

common than to find witnesses colouring their testimony, lessening
its force by feeble statements, or altogether abandoning the
truth, under this pressure from without, in cases of a nature and
magnitude to awake a strong popular feeling. It is by no means
uncommon, indeed, to persuade one class of men, by means of
this influence, that they did not see that which actually occurred
before their eyes, or that they did see that which never had an
existence.

Under no circumstances do men congregate with less meritorious
motives than in meeting in and around a court of justice.
The object is victory, and the means of obtaining it will not
always bear the light. The approaching Circuit and Oyer and
Terminer of Duke's was no exception to the rule; a crowd of
evil passions, of sinister practices, and of plausible pretences,
being arrayed against justice and the law, in two-thirds of the
causes on the calendar. Then it was that Timms and saucy
Williams, or Dick Williams, as he was familiarly termed by his
associates, came out in their strength, playing off against each
other the out-door practices of the profession. The first indication
that the former now got of the very serious character of the
struggle that was about to take place between them, was in the
extraordinary civility of saucy Williams when they met in the
bar-room of the inn they each frequented, and which had long
been the arena of their antagonistical wit and practices.

“I never saw you look better, Timms,” said Williams, in the
most cordial manner imaginable; “on the whole, I do not remember
to have ever seen you looking so well. You grow younger
instead of older, every day of your life. By the way, do you
intend to move on Butterfield against Town this circuit?”

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

Williams knew this very well; and he also knew that it had
been done to entitle the respective parties to costs, in the event

of anything occurring to give either side an advantage; the
cause being one of those nuts out of which practitioners are very
apt to extract the whole of the kernel before they are done
with it.

“Yes, I am aware of that, and I believe we are quite ready.
I see that Mr. Town is here, and I observe several of his witnesses;
but I have so much business, I have no wish to try a
long slander cause; words spoken in heat, and never thought of
again, but to make a profit of them.”

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

“I rather think the friends of the deceased so regard it; but
I have scarcely had time to look at the testimony before the
coroner” — This was a deliberate mystification, and Timms perfectly
understood it as such, well knowing that the other had
given the out-door work of the case nearly all of his time for the
last fortnight — “and I don't like to move in one of these big
matters without knowing what I am about. Your senior counsel
has not yet arrived from town, I believe?”

“He cannot be here until Wednesday, having to argue a
great insurance case before the Superior Court to-day and tomorrow.”

This conversation occurred after the grand jury had been
charged, the petit jurors sworn, and the judge had heard several
motions for correcting the calendar, laying causes over, &c. &c.
Two hours later, the District Attorney being absent in his room,
engaged with the grand jury, Williams arose, and addressed the
court, which had just called the first civil cause on the calendar.

“May it please the court,” he said, coolly, but with the grave
aspect of a man who felt he was dealing with a very serious
matter—“there is a capital indictment depending, a case of arson
and murder, which it is the intention of the State to call on at
once.”

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

easy to see that he deeply regretted it should fall to his lot to try
such an issue. He leaned forward, with an elbow on the very
primitive sort of desk with which he was furnished by the public,
indented it with the point of his knife, and appeared to be passing
in review such of the circumstances of this important case
as he had become acquainted with, judicially. We say `judicially;'
for it is not an easy thing for either judge, counsel, or
jurors, in the state of society that now exists, to keep distinctly
in their minds that which has been obtained under legal evidence,
from that which floats about the community on the thousand
tongues of rumour — fact from fiction. Nevertheless, the respectable
magistrate whose misfortune it was to preside on this
very serious occasion, was a man to perform all his duty to the
point where public opinion or popular clamour is encountered.
The last is a bug-bear that few have moral courage to face; and
the evil consequences are visible, hourly, daily, almost incessantly,
in most of the interests of life. This popular feeling is the great
moving lever of the republic; the wronged being placed beneath
the fulcrum, while the outer arm of the engine is loaded with
numbers. Thus it is that we see the oldest families among us
quietly robbed of their estates, after generations of possession;
the honest man proscribed; the knave and demagogue deified;
mediocrity advanced to high places; and talents and capacity
held in abeyance, if not actually trampled under foot. Let the
truth be said: these are evils to which each year gives additional
force, until the tyranny of the majority has taken a form and
combination which, unchecked, must speedily place every personal
right at the mercy of plausible, but wrong-doing, popular
combinations.

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

“No, your honour,” answered Timms, now rising for the first
time in the discussion, and looking about him as if to scan the

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

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

“Yes, sir; I appear in her behalf. But Mr. Dunscomb is
also retained, and will be engaged in the New York Superior
Court until Wednesday, in an insurance case of great magnitude.”

“No insurance case can be of the magnitude of a trial for
life,” returned Williams. “The justice of the State must be
vindicated, and the person of the citizen protected.”

This sounded well, and it caused many a head in the crowd,
which contained both witnesses and jurors, to nod with approbation.
It is true, that every thoughtful and observant man must
have had many occasions to observe how fallacious such a declaration
is, in truth; but it sounded well, and the ears of the
multitude are always open to flattery.

“We have no wish to interfere with the justice of the State,
or with the protection of the citizen,” answered Timms, looking
round to note the effect of his words — “our object is to defend
the innocent; and the great and powerful community of New
York will find more pleasure in seeing an accused acquitted than
in seeing fifty criminals condemned.”

This sentiment sounded quite as well as that of Williams's,
and heads were again nodded in approbation. It told particularly
well in a paragraph of a newspaper that Timms had engaged to
publish what he considered his best remarks.

“It seems to me, gentlemen,” interposed the judge, who understood
the meaning of these ad captandum remarks perfectly
well, “that your conversation is premature at least, if not altogether
improper. Nothing of this nature should be said until
the prisoner has been arraigned.”

“I submit, your honour, and acknowledge the justice of the
reproof,” answered Williams. “I now move the court, on behalf

of the District Attorney, that Mary Monson, who stands
indicted for murder and arson, be arraigned, and her pleas entered—”

“I could wish this step might be delayed until I can hear
from the leading counsel for the defence,” objected Timms,
“which must now occur in the course of a very few hours.”

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

“Yes, your honour; she is, and young and handsome, they
tell me,” answered Williams; “for I have never been able to
get a sight of her. She is too much of a great lady to be seen
at a grate, by all I can learn of her and her proceedings. Plays
on the harp, sir; has a French valet de chambre, or something
of that sort—”

“This is all wrong, Mr. Williams, and must be checked,”
again interposed the judge, though very mildly; for, while his
experience taught him that the object of such remarks was to
create prejudice, and his conscience prompted him to put an end
to a proceeding so unrighteous, he stood in so much awe of this
particular counsel, who had half a dozen presses at his command,
that it required a strong inducement to bring him out as he
ought to be, in opposition to any of his more decided movements.
As for the community, with the best intentions as a whole, it
stood passive under this gross wrong. What `is everybody's
business' is literally `nobody's business,' when the public virtue
is the great moving power; the upright preferring their ease to
everything else, and the ill-disposed manifesting the ceaseless
activity of the wicked. All the ancient barriers to this species
of injustice, which have been erected by the gathered wisdom
of our fathers and the experience of ages, have been thrown
down by the illusions of a seeming liberty, and the whole machinery
of justice is left very much at the mercy of an outside
public opinion, which, in itself, is wielded by a few of the worst

men in the country. These are sober truths, as a close examination
will show to any one who may choose to enter into the
investigation of the ungrateful subject. It is not what is said,
we very well know; but it is what is done.

Williams received the mild rebuke of the judge like one who
felt his position; paying very little respect to its spirit or its
letter. He knew his own power, and understood perfectly well
that this particular magistrate was soon to run for a new term of
office, and might be dealt with more freely on that account.

“I know it is very wrong, your honour — very wrong” —
rejoined the wily counsel to what had been said — “so wrong,
that I regard it as an insult to the State. When a person is
capitally indicted, man or woman, it is his or her bounden duty
to put all aboveboard, that there may be no secrets. The harp
was once a sacred instrument, and it is highly improper to introduce
it into our gaols and criminals' cells—”

“There is no criminal as yet — no crime can be established
without proof, and the verdict of twelve good men and true,”
interrupted Timms—“I object, therefore, to the learned counsel's
remarks, and—”

“Gentlemen, gentlemen,” put in the judge, a little more
pointedly than in his former rebuke — “this is all wrong, I repeat.”

“You perceive, my brother Timms,” rejoined the indomitable
Williams, “the court is altogether against you. This is not a
country of lords and ladies, fiddles and harps, but of the people;
and when the people find a bill for a capital offence, capital care
should be taken not to give more offence.”

Williams had provided himself with a set of supporters that
are common enough in the courts, whose business it was to grin,
and sneer, and smile, and look knowing at particular hits of the
counsel, and otherwise to back up his wit, and humour, and logic,
by the agency of sympathy. This expedient is getting to be

quite common, and is constantly practised in suits that relate, in
any manner, to politics or political men. It is not so common,
certainly, in trials for life; though it may be, and has been, used
with effect, even on such serious occasions. The influence of
these wily demonstrations, which are made to have the appearance
of public opinion, is very great on the credulous and ignorant;
men thus narrowly gifted invariably looking around them
to find support in the common mind.

The hits of Williams told, to Timms's great annoyance; nor
did he know exactly how to parry them. Had he been the
assailant himself, he could have wielded the weapons of his antagonist
with equal skill; but his dexterity was very much confined
to the offensive in cases of this nature; for he perfectly
comprehended all the prejudices on which it was necessary to
act, while he possessed but a very narrow knowledge of the
means of correcting them. Nevertheless, it would not do to let
the prosecution close the business of the day with so much of
the air of triumph, and the indomitable attorney made another
effort to place his client more favourably before the
public eye.

“The harp is a most religious instrument,” he coolly observed,
“and it has no relation to the violin, or any light and frivolous
piece of music. David used it as the instrument of praise, and
why should not a person who stands charged—”

“I have told you, gentlemen, that all this is irregular, and
cannot be permitted,” cried the judge, with a little more of the
appearance of firmness than he had yet exhibited.

The truth was, that he stood less in fear of Timms than of
Williams; the connection of the last with the reporters being
known to be much the most extensive. But Timms knew his
man, and understood very well what the committal of counsel
had got to be, under the loose notions of liberty that have grown
up in the country within the last twenty years. Time was, and

that at no remote period, when the lawyer who had been thus
treated for indecorum at the bar would have been a disgraced
man, and would have appealed in vain to the community for
sympathy; little or none would he have received. Men then
understood that the law was their master, established by themselves,
and was to be respected accordingly. But that feeling is
in a great measure extinct. Liberty is every hour getting to be
more and more personal; its concentration consisting in rendering
every man his own legislator, his own judge, and his own
juror. It is monarchical and aristocratic, and all that is vile and
dangerous, to see power exercised by any but the people; those
whom the constitution and the laws have set apart expressly to
discharge a delegated authority being obliged, by clamours sustained
by all the arts of cupidity and fraud, to defer to the passing
opinions of the hour. No one knew this better than Timms,
who had just as lively a recollection as his opponent that this
very judge was to come before the people, in the next autumn,
as a candidate for re-election. The great strain of American
foresight was consequently applied to this man's conscience, who,
over-worked and under-paid, was expected to rise above the weaknesses
of humanity, as a sort of sublimated political theory that
is getting to be much in fashion, and which, if true, would supersede
the necessity of any court or any government at all. Timms
knew this well, and was not to be restrained by one who was thus
stretched, as it might be, on the tenter-hooks of political uncertainty.

“Yes, your honour,” retorted this indomitable individual, “I
am fully aware of its impropriety, and was just as much so when
the counsel for the prosecution was carrying it on to the injury
of my client; I might say almost unchecked, if not encouraged.”

“The court did its best to stop Mr. Williams, sir; and must
do the same to keep you within the proper limits of practice.

Unless these improprieties are restrained, I shall confine the
counsel for the State to the regular officer, and assign new counsel
to the accused, as from the court.”

Both Williams and Timms looked amused at this menace,
neither having the smallest notion the judge dare put such a
threat in execution. What! presume to curb licentiousness
when it chose to assume the aspect of human rights? This was
an act behind the age, more especially in a country in which
liberty is so fast getting to be all means, with so very little
regard to the end.

A desultory conversation ensued, when it was finally settled
that the trial must be postponed until the arrival of the counsel
expected from town. From the beginning of the discussion,
Williams knew such must be the termination of that day's work;
but he had accomplished two great objects by his motion. In
the first place, by conceding delay to the accused, it placed the
prosecution on ground where a similar favour might be asked,
should it be deemed expedient. This resisting of motions for
delay is a common ruse of the bar, since it places the party whose
rights are seemingly postponed in a situation to demand a similar
concession. Williams knew that his case was ready as related to
his brief, the testimony, and all that could properly be produced
in court; but he thought it might be strengthened out of doors,
among the jurors and the witnesses. We say, the witnesses; because
even this class of men get their impressions, quite frequently,
as much from what they subsequently hear, as from
what they have seen and know. A good reliable witness, who
relates no more than he actually knows, conceals nothing, colours
nothing, and leaves a perfectly fair impression of the truth, is
perhaps the rarest of all the parties concerned in the administration
of justice. No one understood this better than Williams;
and his agents were, at that very moment, actively employed in

endeavouring to persuade certain individuals that they knew a
great deal more of the facts connected with the murders, than
the truth would justify. This was not done openly or directly;
not in a way to alarm the consciences or pride of those who were
to be duped, but by the agency of hints, and suggestions, and
plausible reasonings, and all the other obvious devices, by means
of which the artful and unprincipled are enabled to act on the
opinions of the credulous and inexperienced.

While all these secret engines were at work in the streets of
Biberry, the external machinery of justice was set in motion with
the usual forms. Naked, but business-like, the blind goddess was
invoked with what is termed “republican simplicity,” one of the
great principles of which, in some men's estimation, is to get the
maximum of work at the minimum of cost. We are no advocates
for the senseless parade and ruthless expenditure — ruthless, because
extracted from the means of the poor — with which the
governments of the old world have invested their dignity; and
we believe that the reason of men may be confided in, in managing
these matters, to a certain extent; though not to the
extent that it would seem to be the fashion of the American
theories, to be desirable. Wigs of all kinds, even when there is a
deficiency of hair, we hold in utter detestation; and we shall
maintain that no more absurd scheme of clothing the human
countenance with terror was ever devised, than to clothe it with
flax. Nevertheless, as comfort, decency and taste unite in recommending
clothing of some sort or other, we do not see why
the judicial functionary should not have his appropriate attire as
well as the soldier, the sailor, or the priest. It does not necessarily
follow that extravagances are to be imitated if we submit
to this practice; though we incline to the opinion that a great
deal of the nakedness of “republican simplicity,” which has got
to be a sort of political idol in the land, has its origin in a spirit

that denounces the past as a species of moral sacrifice to the
present time.

Let all this be as it may, it is quite certain that “republican
simplicity” — the slang lever by means of which the artful move
the government — has left the administration of justice among
us, so far as externals are concerned, as naked as may be. Indeed,
so much have the judges become exposed to sinister influences,
by means of the intimacies with which they are invested
by means of “republican simplicity,” that it has been found
expedient to make a special provision against undue modes of
approaching their ears, all of which would have been far more
efficiently secured by doubling their salaries, making a respectable
provision for old age in the way of pensions, and surrounding
them with such forms as would keep the evil-disposed at a reasonable
distance. Neither Timms nor “saucy Williams,” however,
reasoned in this fashion. They were, in a high degree,
practical men, and saw things as they are; not as they ought to
be. Little was either troubled with theories, regrets, or principles.
It was enough for each that he was familiar with the
workings of the system under which he lived; and which he
knew how to pervert in a way the most likely to effect his own
purposes.

The reader may be surprised at the active pertinacity with
which Williams pursued one on trial for her life; a class of persons
with whom the bar usually professes to deal tenderly and in
mercy. But the fact was that he had been specially retained by
the next of kin, who had large expectations from the abstracted
hoards of his aunt; and that the fashion of the day had enabled
him to achieve such a cent per cent bargain with his client, as
caused his own compensation altogether to depend on the measure
of his success. Should Mary Monson be sentenced to the
gallows, it was highly probable her revelations would put the

wronged in the way of being righted, when this limb of the law
would, in all probability, come in for a full share of the recovered
gold. How different all this was from the motives and
conduct of Dunscomb, the reader will readily perceive; for, while
the profession in this country abounds with Williams's and
Timms's, men of the highest tone of feeling, the fairest practice,
and the clearest perceptions of what is right, are by no means
strangers to the bar.