University of Virginia Library

2. CHAPTER II.

The witnesses were now called, and good old
Mr. Jones repeated very accurately what he had
said before the justice. When he came to speak
of the return of the pistol, he was stopped by Shaler,
who said that he did not mean to inquire whether
Balcombe had acknowledged it to be his or
no; he therefore requested nothing might be said
of that matter. Then, addressing the court, he
added, “As I do not mean at all to avail myself
of any admissions of Mr. Balcombe, I wish to be
understood as objecting to all evidence which may
be offered of words spoken by him.”

Then turning to the witness, he asked whether
Scott had recognised the picture. I had observed,
as he spoke, a slight flush on the pale and withered
cheek of the old man, and a gleam of light in his
dim eye, as if he had a glimmering and unpleasant
perception of the effect of this course of examination.
He now replied that Scott claimed the picture

eagerly, and that neither he nor Balcombe
seemed at all disconcerted, but that the latter
appeared to forget everything in the thought of the
original of the picture. This was said in the
hurried way of a man fearful of being interrupted,
and I was pleased to see that as the toils of the law
were drawn around Balcombe, the sympathies of
good men were awakened in his favour.

Notwithstanding this, I was now, for the first
time, filled with consternation; for I could not be
insensible how much the candid and perspicuous
narrative of Balcombe had done to impress the
justice and the bystanders favourably on the former
occasion. This advantage was now to be
denied him, and I saw the necessity of making it
up, if possible, by the fulness and clearness of my
own testimony.

Johnson now came forward and repeated the
tale of his adventures in the wilderness. When he
came to tell that Balcombe and Scott, as it would
seem, decoyed Ramsay to the scene of his assassination,
I observed that the foreman of the jury
cast on him a glance of indignation, and turning
his eye on Balcombe, rested it there with a calm
expression of respect and confidence. Here again
was ground of hope, and I admired the sagacity of
Balcombe in trusting his fate to a man who, though
an enemy, knew him to be incapable of seeking a
base and cowardly advantage. Having told his
tale, Johnson was now turned over to Balcombe,

who, addressing him in an easy conversational
style, said,

“Mr. Johnson, I don't think I had seen you before
that evening since we parted on the frontier ten
years ago, and I did not know you at all. I am
surprised that you knew me.”

“Oh! I know'd you well enough, for I had reason
to remember you.”

“Why, what harm had I ever done you?” said
Balcombe, mildly.

“What,” said Johnson, “I suppose you don't remember
how you served me away out upon the
Simmirone!”

“Indeed I do not,” said Balcombe; “and I am
sorry you should bear malice so long. And was
that the reason you took part against me that night?
I remember now—it was you that tied my hands.
But the fellow that held me behind, and never spoke
a word, nor let me see his face; I suppose he
thought I would know him. I wish you would tell
me who that was.”

The witness hesitated and looked perplexed.
Balcombe went on:

“Mr. Johnson, you and Ramsay went there together—why
did you not go with him down the
hollow?”

“Nobody asked me to go,” said Johnson.

“And are you very sure you did not go?
Well, did Scott and I carry Ramsay, or did he and
the rest of you carry us?”

“No, you just walked along together friendly
like.”

“I am glad to hear we were so friendly; I
thought you said a while ago that Ramsay vowed
vengeance against me.”

The witness looked a little disconcerted, and
Balcombe struck at the opening his confusion
afforded, by saying,

“Why, Ramsay must have got more than his
share of the plunder that night; I suppose he
dropped the picture and pistol when he was shot.”

“Ramsay never had the pistol nor the picture
neither,” said Johnson.

“You are very sure, then, that I did not give them
to him after we parted from you.”

The witness looked as if he did not know how
to take or answer this remark, and remained silent.

“I will not trouble you any further, sir,” said
Balcombe; “and you, gentlemen of the jury, will
be governed by your own sagacity and knowledge
of mankind in deciding whether this witness has
displayed either the indignation or surprise that
my questions might have occasioned to a man to
whom such suggestions were new, or merely a
dogged resolution to adhere to his first story.”

The rest of the testimony on behalf of the
prosecution was pretty much what it had been
before; with the additional fact of Keizer's attempt
to escape from the state. In bringing forward the
evidence on the part of the accused, it was thought
advisable to explain this last matter at once, by

calling Mr. Green, the sheriff of St. Louis county,
to prove that Keizer went in quest of Montague,
and wished to take him back. This was objected
to as an attempt of Keizer to make evidence for
himself, and excluded by the judge, in a half sentence,
lazily uttered between two puffs of his cigar.
The circumstances of the arrest were, however,
detailed, and the fact that Keizer had dogged
Montague instead of avoiding him, could not be
disguised. It was now my turn to testify, and as
I had arranged my history of the transaction in my
own mind, I began far enough back to enable the
jury to see it in all its bearings. But objections on
the score of what was called irrelevancy were at
hand, when no other occurred, and were all sustained.
Of all that I had to say of events antecedent
to the death of Ramsay, I was not permitted
to tell more than that, on that evening Balcombe
and Scott had walked out towards the spot where
Johnson said he had seen them. The only effect,
then, of this part of my story, was to confirm the
testimony of that wretch. I then proceeded to
speak of the interview with Montague. I was
permitted to tell what I had seen, but as soon as I
began to detail the conversation with Montague, I
was again stopped, and told to confine myself to
what I knew, and to bear in mind that hearsay
testimony was not admissible.

Balcombe now arose, “I would thank the gentleman
who makes the objection to favour me with
a definition of hearsay testimony.”

“Hearsay testimony,” said Shaler, “is testimony
of anything that any other person but a party or
witness present in court has been heard to say.”

“I think,” replied Balcombe, “that I could supply
the gentleman with a better definition.”

“I will hear it with pleasure, sir,” said Shaler.

“Hearsay testimony,” continued Balcombe, “is
that by which one would prove a fact by proving
that some person not a party had asserted that
fact.”

“I see no difference,” drawled the judge.

“This case, sir,” said Balcombe, “illustrates the
difference. I propose to prove by the witness that
Mr. Montague being asked where I was, said that
I was at the Rockhouse. Do I offer this in proof
of the fact that I was there? Is that a fact for me
to prove? Does not the success of the prosecution
depend on the establishment of that very fact?
Why else is that pistol here? Why else was
Johnson sworn to prove that he saw me go that
way? Take away these proofs, and wary as the
gentleman is not to permit a word that I have said
to be repeated, he would gladly receive proof that
even I had said that I was there. I now say that
I was there. Will the gentleman be hardy enough
to allege that in saying this I am making testimony
for myself? Evidence of the words of
Montague, then, is not offered in proof that the
words were true. The gentleman may have it that
they were false if he can afford to put the matter
on that footing. It is offered solely and simply in

proof that the words were spoken. The speaking
of those words is a fact on which I rely, in connection
with his trepidation, and his possession of
an article which must have been just before taken
from Scott or me, in proof not of the fact asserted
by him, but of another fact, of the fact that he knew
that I was there; from which I shall argue that I
was there against my will, and in the power of
persons acting under his orders.”

He ceased, and Shaler, evidently pleased though
baffled, rose to reply, but was stopped by the judge,
who repeated that he saw no difference, and
that the only definition of hearsay evidence was
that given by Shaler. Had he looked at that gentleman
as he said this, he would have seen an expression
of disappointment and disgust which even
he could not have mistaken.

While Balcombe was speaking, I observed
Whitehead a third time turn in his chair, and look
at him earnestly. His countenance now wore a
less equivocal expression than formerly. It bore
marks of approbation, intelligent attention, and a
kind of sympathy. He rose, and placing himself
so that, with a slight change of position, he could
face either Balcombe or the court, he said, “I
have watched the progress of this case, sir, with a
mind passing from a state of profound indifference
to one of the highest interest. I should have more
cause than I have to regret a course of life which
has hardened my heart and made it callous to the
misfortunes of others, if I could look with composure

to the possible fate of a brave and honourable
man, involved in the snare of a base conspiracy,
and hunted to destruction by the best
talents which could be employed against him. I
have so far been silent out of respect for that delicate
sense of honour, that noble confidence of
innocence, which was unwilling to accept an acquittal
rendered equivocal by professional aid.
Nor would I now offend those generous feelings by
an offer of aid, except in strict subordination to the
pleasure of one who has so far conducted his defence
with ability not less distinguished than its
delicacy and propriety. On behalf of such a man,
sir, I would not presume to make a point which
his judgment and his feelings did not alike approve.
But having himself made one, I trust he will pardon
me for asking his permission to offer a few remarks
in furtherance of his own.”

He paused; and turning to Balcombe, awaited
his reply with an air of lofty deference, which imposed
silence and awe on all present.

“You have my thanks, sir,” said Balcombe, resuming
his quiet air and tone, though with a countenance
not void of emotion—“you have my
thanks, sir, for the offer of your assistance, and yet
more for the manner of it, and under the restrictions
suggested by yourself, I accept it.”

“I am flattered by the acceptance, sir,” said
Whitehead. Then turning to the court, “I do not
propose,” said he, “to call upon the court to reconsider
the question just now decided, I will not

say hastily, but without thought. Not having been
heard by counsel, as he has a right to be, Mr. Balcombe
might not only ask, but demand a reconsideration.
But it would require a reach of presumption
of which I am incapable to flatter myself
that I can add anything to the clearness and
conclusiveness of the argument you have just
heard from himself. He who cannot understand
it will never understand the simplest rule of grammar
or arithmetic. He who is unconvinced by it
will yield to no conviction that does not lead him
to the gratification of his own wishes. He who is
not moved by the exhibition we have seen this day
of the quiet dignity of innocence, of honour, candour,
sagacity, and ability, struggling in the toils
of art, or crushed beneath the dead fall of dulness,
will never shake off the torpor of his selfish apathy
until the last trump shall rouse him from his last
sleep.

“My purpose in rising, sir, is to call the attention
of the jury to what has just passed, and to prepare
their minds to assign it its due place, and its due
weight. You, gentlemen, are judges of law and
of fact. The facts you obtain by testimony, and
that is made up of what is sworn by witnesses
which you hear, and of the deportment of the
witnesses under examination, and of the defendant
under trial, which you see with your own eyes. It
is for this reason that the accused has a right to be
confronted with the witnesses, and the jury, and
to confront them with each other. Truths are thus

made manifest to the senses which no language can
communicate. And shall you believe that the
wisdom of the law which requires that these sources
of truth shall be opened to you, forbids you to drink
of them? Shall you be told that the exhibition of
character which has this day borne to the mind of
every other person a conviction of the defendant's
innocence, is testimony to all but you? Is it required
of you to condemn as a felon a man of
whom all that we have seen and heard here has
left no doubt in the mind of me, a stranger, and
can leave no doubt in your minds, that if unerring
wisdom should designate the man of all in this
presence most worthy to sit in judgment on all
the rest, the prisoner at the bar would be that man.
Gentlemen, the whole deportment of the prisoner
is in evidence before you; and as it is the most
interesting, so it is the most satisfactory evidence
laid before you this day.

“I do not propose to argue before you the question
just now decided, were it admissible. I am here
without books, and could only add my testimony
that the law is as was stated by Mr. Balcombe.
To his argument I could add nothing. Nothing
can deepen your conviction of its truth. Nothing
can ever make you doubt that the testimony
offered was not only lawful, but the only testimony
by which this mystery of iniquity can ever be unravelled.
Nothing can ever make you doubt that
Mr. Balcombe was prepared to give such testimony.
My only purpose now is to premonish

you that there is nothing in the law requiring you to
reject these convictions, derived from that which is
testimony in the eyes of the law. I beg you to
bear these things in mind, and to hold yourselves
prepared to assign them their due weight, when
the proper time shall come for the last appeal to
you, the final judges of law and fact. That appeal
will be confidently made; for I shall always
appeal with confidence to honour and intelligence,
even in an enemy, from the stolid indifference of
apathy and dulness.”

He ceased, but continued standing, and having
with the last words glanced his eye from the foreman
to the judge, it remained fixed on him with an
expression of cool scorn.

“Why—really—Mr. Whitehead,” said that worthy,
“this is a—most extraordinary—” He paused
and looked around. As soon as he began to speak
Whitehead threw himself into his chair, and giving
his shoulder to the judge, fixed his eye steadily on
Balcombe. His honour looked to Shaler for encouragement,
but found none. In every other
countenance he must have sought in vain for any
expression but that of contempt. He remained
silent, lay back in his chair, and puffed his cigar.

A momentary feeling of triumph passed across
my mind at this instant, but it soon gave place to
the thought of the aspect of the case, as seen in the
facts proved before the jury. The dead body of a
man slaughtered in this obscure place, and thrown
into the river, as no one could doubt, by the hand

of Keizer; Balcombe's pistol, and Scott's picture
found at the spot; the enmity between Balcombe
and Ramsay, and the fact that the latter had fallen
in with the former accompanied by Scott, and that
the three were seen going together towards the
place about the time the deed must have been
done; these facts made up the case on the part of
the prosecution. The exculpatory evidence was
frittered down to the single circumstance of the
possession of the casket by Montague, which
merely showed that he and Balcombe had met.
What hope remained but that the jury, with the
sturdy independence on which the men of the
West pride themselves, should stand out in the belief
that there was a something in the business not
yet understood? On this slender thread hung the
destiny of my noble friend, and into this peril he
had been brought by his zeal in my service. I
could not look at him, especially after I had told
the only other fact I was permitted to mention;
the damning fact that the blood of Ramsay was
yet warm when I saw it.

Balcombe was now asked if he had anything
farther to offer, and replied in the negative. At
this moment an Indian came forward, who proved
to be our old acquaintance Billy John. He looked
around him with an undisturbed countenance; but
as his cold eye fell on Balcombe, it rested there
for a moment with an appearance of satisfaction,
and he immediately said, striking his breast with
the point of his finger, “Me, me kill him man.” He

He then folded his arms, and stood patiently
waiting what might be required of him.

“What does the fellow want?” said Shaler.

“He wants to be sworn,” said Keizer. “Swear
him.”

“Does he speak English?” asked Shaler.

“Oh yes; me 'peak 'Merican.”

“Do you understand the nature of an oath?”
inquired Shaler. No answer. The question was
repeated.

“Not know—not unnestan',” said the Indian,
shaking his head.

“It appears,” said Shaler to the court, “that he
does not understand the nature of an oath.”

“Or the meaning of your question—which?”
said Balcombe.

Then, after speaking a few words in a foreign
tongue, he added,

“If you repeat your question now, sir, you will
probably obtain an answer.”

“I suppose so, sir,” said Shaler, sarcastically,
“after—” Then, suddenly checking himself, he
added, in a tone of deep respect, “I beg pardon,
sir; I was going to make a remark which even
my situation would not justify.”

He then repeated the question, to which the
Indian replied,

“Great Spirit hate liar. Me call him hear—me
tell lie—he very mad.”

“And what do you think he will do with you if
you tell a lie?”

“Oh, he do me very bad,” replied Billy John.

“But what will he do?”

“Not know,” said the simple savage.

“And what will become of you when you die?”

“Oh, good man go to fine country. Plenty
deer—plenty buffalo—plenty elk—plenty bear:
shoot—good rifle—never miss.”

“But what will become of you?”

“Not know,” said the Indian.

“He has no idea of a future state of rewards and
punishments, sir, and cannot be sworn,” said Shaler
to the court.

The judge then began to echo this remark, when
Balcombe said,

“Give me leave, if you please, sir, to ask if he
believes the Great Spirit will do him bad, as he calls
it, after he dies.”

“Oh, yes,” said the Indian, “very much—very
bad.”

“But what do you think he will do?” said
Shaler.

“Not know,” said he.

Shaler looked at Balcombe, who said, quietly,
“Do you?”

The matter was now left to the court, and it
was decided that he might be sworn.

After taking the oath, he was asked if he knew
who killed Andrew Ramsay, to which he replied
in the negative. If he knew anything of his death:
no.

“Then what does he know about the matter?”
said Shaler.

“Everything but the man's name,” said Balcombe;
who now asked him if he knew who killed
a man at the Rockhouse on a certain night, whose
body was thrown into the river. To this he answered,
“Me, me, me kill him.”

“And where was I at the time?”

“Oh, you there too. He lie close to the rock—
him hand tied.”

“Another accomplice, sir,” said Shaler. “I
submit, sir, that we might as well have examined
Keizer, while we believed him to have been the
perpetrator of the murder, as examine this fellow
who declares that he did the deed. We had only
mistaken the instrument, it seems, sir; and this
disclosure just makes such a change in the case as
if we had found that a different weapon had been
used from that supposed.”

“Such a weapon,” said Balcombe, dryly, “as a
man may use with his hands tied.”

Affecting not to heed the interruption, Shaler
was going on to propose to cut short the testimony
of the witness by committing him, when Keizer
spoke:

“It is not worth while,” said he, “to be putting
the poor fellow to trouble when there's no use for
him. Nobody wanted him here; but then he's a
truehearted fellow, that would not let the colonel
suffer for what he had done. Sheriff, call Sam
Todd.”

I started at this name, which I remembered to
have heard before as that of one of Montague's confederates.
It was repeated by the sheriff; and a
man dressed a good deal after the same fashion with
John himself, but tall, gaunt, and wolfish in his aspect,
made his appearance. He stepped boldly forward
at once and was sworn.