University of Virginia Library

23. XXIII.
THE DEATH PENALTY.

The business in New Orleans was progressing finely.
By every mail young Cunningham forwarded to his
employers an account of his success, and they daily
congratulated themselves on their good-fortune in
securing an agent so faithful and trustworthy. But
there was something in his manners which Kate had
never seen there before, a kind of deprecating tenderness.
He had never been so affectionate. True, he
had always loved her, but now he would come and put
back her curls, and call her his poor little darling,
looking into her face so mournfully that it brought
tears to her eyes. There was something, too, she
could not understand in the eager, fascinated gaze
with which he would scan the news items of each
northern paper, and the sigh of relief when he laid
them down.

During the latter part of February, Mr. Goldthwaite
was sent West to collect some heavy bills for the

firm, and the junior partner undertook to supply his
place at home. One morning, early in March, he
entered the store, and proceeded to the counting-room.
He was accompanied by two gentlemen, one of whom
Ezekiel Sharpe recognized as the broker, Wilson, with
whom he had often transacted business for the firm,
and the other he shrewdly suspected to be a police
officer. Mr. Wilson held in his hand the forged note,
which had that morning been protested. The junior
partner was in a state of great excitement, and he was
never very cautious. Dick was absent at the time on
some errand for his employers, and so taking the note
he placed it before Ezekiel with the sudden inquiry—
“Do you know that handwriting?”

At a glance, Ezekiel understood the whole affair.
He did not indeed suspect the real culprit, though he
knew Dick well enough to believe him innocent; but
the loss of the situation he coveted, was still rankling
in his mind, and here seemed an excellent opening for
revenge. If Dick was exculpated even, as he had
really no doubt that he would be, yet the very accusation
would be disgraceful and inflict an incurable
wound on his sensitive spirit.

He looked at the note for a moment, and then he
answered,—“Why yes, it looks more like Hereford's
hand than any one I know of. It isn't just as he usually
writes, yet I should recognize it any where. He draws
up the notes, doesn't he?”

“Yes, but don't you comprehend, this note is
forged, and it is done so skilfully, it was surely the
work of some one very familiar with our signature;
but it couldn't have been Hereford?”

“I should hope not,” answered Ezekiel, in a tone
of mock sympathy. “You might just compare it with
his handwriting in the books,” and stepping to Dick's
desk he threw one open. They laid the note beside it,
and Ezekiel, with an appearance of great horror,
exclaimed—“Only look, there are the very same turns
to the looped letters; look at those g's and y's; but
no, there is some hope yet, the c's are different.”

“Of course,” said Mr. Wilson, impatiently, “he
would try to disguise his handwriting, but you recognized
it at the first glance; that is sufficient evidence.
I must have the young man arrested.”

“Good Heavens!” exclaimed the junior partner,
with a convulsive shudder, “I had as lief it would
have been my brother! I would far rather pay the
money.”

The broker seemed at first inclined to accept the
offer, but Ezekiel suggested, in his smoothest tones,
that it would do no good now, since the sheriff had
been witness to the scene; beside, most likely, Hereford
would be able to prove himself innocent; and so Mr.
S. withdrew his proposal.

“Perhaps the next thing will be to find him,”
remarked the sheriff's officer, who had not before

spoken; “he must have known that the note fell due
this morning, and very likely you will discover him to
have taken French leave.”

“Hush,” said Ezekiel, with his finger upon his lips,
“there he comes; good morning, Hereford.”

The officer advanced leisurely toward the new
comer and arrested him for forgery. “Oh, my God!”
he cried, turning pale as death. This emotion was of
course interpreted as conclusive evidence of his guilt,
though it was but the protest of a sensitive, honorable
soul against disgrace.

They placed the note before him, and the similarity
of the hand to his own struck him at the first glance.
He did not recognize the chirography of Harry Cunningham
in its improved form. Truth to tell, toward
the close of the lessons, his fairer pupil had occupied
so much more of his attention, that he retained no
very distinct recollection of any thing connected with
Harry's progress. At a careless glance he would have
taken the handwriting of the note for his own, and he
saw at once the fearful weight such testimony would
bear against him.

“I am innocent, oh I am innocent!” he said, turning
his eyes imploringly on Mr. S.

“God knows I hope you will be able to prove it,”
answered his employer, fervently.

“To the Tombs for the first step toward such a
desirable consummation,” remarked Mr. Wilson, with

a covert sneer. A private carriage was called by
the order of Mr. S., and the four men entered it.
Ezekiel went out to the door, and looked after them as
long as he could see the carriage, with a gaze of internal
satisfaction. During the ride, Dick spoke but
once, and that was to inquire how soon the case could
be brought to trial.

“It could be managed in three weeks,” was the
reply, “unless you chose to have it put off. You could
do that if it would help you.”

“Oh no,” he answered, eagerly, “not for worlds;
it would do me no good. The quicker the better.”
Then he said nothing more until he stood before the
magistrate in the police court. The handwriting was
the only evidence against him, but they had brought
his ledger from the store, and the similarity was pronounced
sufficiently strong to warrant a committal.
He listened silently to the magistrate, but when Mr.
S. came forward and inquired the necessary amount
of bail, he cried impetuously, “May God reward you,
sir, for all this kindness, but I will not be bailed out.
The Heavenly Father will not suffer me to be condemned
innocently, and I can stay here for three
weeks. I will not go with the shadow of this grief
upon me into my happy home. No, I will wait here.”

It was in vain to attempt to shake his resolution.
At length he turned to his employer. “Do you

indeed believe me innocent?” he asked, in tremulous
tones.

“I do; from my heart I do,” was the earnest reply;
“but I fear my belief cannot help you.”

“Yes, it can. Oh, if you believe it, I pray you go
to my mother and my sisters, and tell them so. Tell
them they cannot see me, that if they come here they
will be refused admission. Bid them, if they love me,
stay quietly at home until every thing is decided. I
will not have them link themselves with my unmerited
disgrace. Tell my mother, by my hopes of the Heaven
in which she has taught me to believe, I am guiltless
of this crime. Will you do all this?”

“I will,” answered Mr. S., deeply moved, “and
now let me see that you have proper counsel.”

“He has,” cried a firm voice, from the other side
of the room, “I will plead for him; I, his brother,”
and starting forward, a handsome, distinguished-looking
young man sprang to the prisoner's side, and
murmured, in husky tones, “My brother, my own
brother Dick.”

Those immediately interested in the examination,
had been too much absorbed during its continuance,
to notice this stranger, who had sat with flushed face
and eager eyes, bending breathlessly forward. Warren
Hereford had been for three days only in New York,
and that morning had visited the Tombs for the first
time. He accompanied his brother to his cell, and

when once they were alone, clasped him in his arms
with an embrace passionate in its fondness. “To meet
thus!” he murmured, “after these many years.”

Dick raised his head and looked at him with his
clear eyes—“I am innocent, brother Warren,” he said,
almost reproachfully.

“Innocent! Good Heavens, did you think I
doubted that for a moment? If I did I should go
mad; but that you should be suspected is horrible!”

During the half-hour that followed, Warren recounted,
briefly, all his past life since their separation,
and told how destitute and lonely he had seemed at
the time of his separation from his adopted mother.
Then he spoke of the generous friend and teacher God
had given him; of his resolution not to seek out his
own family until he should have proved himself worthy
of them by energy and perseverance; of the time
when, prompted by his irresistible yearning for love,
he had written to his mother, and learned from the
return of his letter, that she had gone away; and then
he said, with the earnest, boyhood look, whose memory
Dick had cherished so faithfully, “You tell me they
have been here nearly four years, and are all well and
happy? I shall see them by and by.”

“To-night, surely you will go to them to-night?”

“No, did you not hear me charge Mr. S. not to
let them know I was in the city? Do not urge me, it
is useless. I will not meet them until I have won a

right to their tenderness by rescuing you from disgrace.
Alas! I can never be to them what you are.
You have always loved them, Dick.”

“And they have always loved you; but are you
sure I shall get clear?”

Warren had still a firm faith in his profession.
He devoutly believed that it was all-powerful to detect
the guilty, and screen the innocent from punishment,
so he answered, cheerfully, “There is no doubt of that,
not the least. We must find out whether the broker
remembers who presented the note, and see if we can
prove that you were somewhere else just then. Keep
up a good heart. We shall manage it all nicely.”

Mr. Wilson had no distinct recollection of the person
who had given him the note, but he remembered
the hour and the day distinctly, and Warren was able
to prove that his brother had been at the store, engaged
in his usual employment, at the time when the business
was transacted. This was one thing in his favor, but
there seemed no clue to guide them to the detection
of the real criminal. Harry Cunningham might not
have escaped suspicion so readily, had not all his letters
to the firm, from New Orleans, been written by
his sister, at his dictation. She readily accepted his
excuse that his fever had left him too nervous to write
legibly, and they, unaware of this fact, and constantly
receiving letters signed with his name, in a hand differing
so widely from that of the forged note, never

even fancied for a moment that their trusty agent
might have been its author. Mrs. Hereford and her
daughters obeyed Dick's earnest wish that they would
not visit him, but they suffered even more severely in
their lonely home, than did the prisoner in his cell,
cheered as he was by the daily visits of the enthusiastic,
hopeful Warren. It was Warren's first case, and this
circumstance alone would have excited him intensely,
had it not been absorbed in a deeper consideration.
His brother, his only brother was a prisoner, charged
with a fearful crime, and on his efforts depended his
acquittal. Night and day he gave his energies to the
task with a zeal that never flagged.

A week after Dick's examination before the police
court, Harry Cunningham and his sister sat alone in
their room at New Orleans. It was evening. He
had been very busy all that day, and now he opened
the papers for the first time. He unfolded one, and
then laid it down, pressing his hand to his brow.
“Kate,” he murmured, “something terrible is in that
paper.”

“What, where?” She sprang to his side.

“I have not seen it yet, but I feel it; I felt it the
moment I took the paper in my hand. There, let me
look!” His eye glanced quickly over the long column
of police reports, and then the paper dropped from his
grasp. “Just Heaven,” he cried, “my best friend,
Dick Hereford!” Even before he spoke, Kate had

read the whole paragraph. Her lover, for so in her
heart she considered him—he, whom she had deemed
the impersonation of all goodness and nobleness, was
in prison for forgery. From her pale lips there came
no word, no moan, but gliding to the floor, as quietly
as a snow-wreath, she lay there, as silent, as helpless,
and almost as white. Mastering for the moment his
own intense emotion, he sprinkled her face with ice-water,
and raised her in his arms. Kissing her he
murmured, “He is innocent! he is innocent! Poor
Kate! was he then so loved?”

The words, “He is innocent,” seemed to rouse her
from her stupor. She opened her eyes, and clung to
him shudderingly. “Do you know?” she gasped;
“are you sure?”

“Alas, yes; listen, Kate, it was me, I did it.” He
had feared she would go back to that death-like swoon,
but she kept her glittering eyes fixed on his face,
and only said, very faintly, “You, brother Harry,
you?”

In reply he told her all the history of the crime.
How he had been first introduced into the club-room;
how, little by little, the temptation had overcome him;
how he had welcomed the chance to go South, as an
escape from the terror that haunted him day and night;
how he had been even more wretched since, in his wild
foreboding of evil; but how God knew he had never
dreamed it would come to this, never dreamed another

would suffer in his stead—“and now,” he said, with a
sorrowful pause, as he concluded.

“Well, what now; what will you do now?” She
looked into his face with something almost fierce in
her burning eyes.

“There is but one course, Kate; I must make all
my arrangements here to-morrow morning, and we must
travel night and day, you and I, poor little Kate,—we
can get there before the trial. He must not suffer—
the innocent for the guilty. I will confess it all, and
then, oh Kate, darling, darling, you will be the sister
of a condemned felon.”

Then she kissed him, and the tears gushed from
those burning eyes, until their glance grew tenderer.
“That is right,” she said. “Now work. I will never
desert you, but Dick must be saved.”

“He shall. Kate, child, are you going to hate me?
God knows I have loved you through it all.” She could
not trust herself to answer, but once more she kissed
him.

The Court-House was crowded to overflowing, to
witness the trial of the handsome young clerk. The
examination of the witnesses was very brief. On the
part of the prosecution the handwriting of the forged
note was compared with young Hereford's account
books, and several persons swore to their belief in its
identity. The defence summoned witnesses to prove

the unimpeached character of the accused, and his
presence in the counting-room of his employer, at the
time when the note was presented. The State's attorney,
in opening the case, dwelt upon the close similarity
of the handwriting, and the opportunity afforded
by the prisoner's position, to become familiar with the
signature of his employers. When Warren spoke, his
whole heart was in his subject, and he was glowingly,
and yet truthfully eloquent. He called the attention of
the Court to the different formation of various letters,
in the note, and in the books of the accused, which he
said must be obvious to them all; he spoke of the
calm security of innocence which had led the prisoner
to remain cheerful, serene, and undisturbed in the performance
of his daily duties, up to the very morning
of his arrest; of the certainty that he did not present
the note to the broker, and the improbability that, had
he been guilty, he would have trusted this task to
another's hand. Having proved that the evidence
was merely circumstantial in its character, and imperfect
in various respects, he dwelt upon the testimony
which had been offered, to prove the integrity and
well-known virtues of the accused. He told of the
widowed mother, and blind sister, whose support and
dependence he had so long been; of the humble and
happy home which his conviction would make desolate,
until there was not a dry eye among his listeners, save
only that of the untroubled Ezekiel. When he concluded,
the lawyer for the prosecution declined to reply.
The charge of the judge was brief and impressive. He
reminded them that according to the whole spirit of
the law, where a reasonable doubt existed, the prisoner
was to have the benefit of it; and then, without even
retiring, the jury rendered a unanimous verdict of
“Not Guilty,” and one long, irrepressible shout of
applause rang through the Court-House. The prisoner,
overcome for the first time, bowed his head upon
his hands in a gush of silent tears.

Two of our old friends were present at the trial;
Simon Goldthwaite, who had unexpectedly returned,
and General Douglass, who had come down from
Albany to listen with proud satisfaction to the maiden
plea of his pupil. Scarcely had the universal acclamation
subsided, when a messenger entered the court,
and placed a folded note in Warren Clifford's hand.
It was addressed to the council for the defence. “May
it please the Court,” he said, after a hasty perusal,
“I am requested to summon a magistrate, and proceed
to Williamsburgh, to receive the confession of one
Harry Cunningham, the real perpetrator of this forgery,
who is lying at the point of death.”

Dick had recognized, as the note was unfolded, the
handwriting of his beloved Kate, and springing to
Warren's side he obtained possession of it. There was
a request at the bottom of the page, made in the sick
man's name, that he too would accompany the magistrate,

if it might be permitted. He beckoned Mr. Goldthwaite
to his side, and entreated him, in a hurried
whisper, to go immediately to his mother and sisters,
assure them of his acquittal, and bring Mrs. Hereford
and Emmie to Williamsburgh.

Accompanied by a magistrate, as well as the senior
partner of the firm, and his own brother Warren, Dick
Hereford entered the chamber where Kate Cunningham
awaited him, standing by the bedside of the
dying. A physician was holding the pulse of the repentant
criminal. His eye brightened when it rested
on Dick's well-known features, and he extended his
hand. “You didn't think I meant to wrong you,” he
said, faintly. “I never dreamed that you could be
suspected.”

“I know it, Harry,” said Dick's cordial, friendly
tones, as he pressed the thin hand he held.

They had left New Orleans the afternoon of the
next day after they received news of Dick's arrest.
Kate's strength and energy seemed untiring, and Harry
was possessed by the one wild longing to make
confession and reparation as far as possible, while it
was yet in his power. The anxiety attendant on his
crime, and its concealment, had rapidly undermined
his constitution, and he had scarcely passed two days
of his homeward journey, before he woke to the conviction
that already his hours were numbered, that
he was very near to death. They had been obliged

to travel by slow stages, toward the last, on account of
his extreme weakness, but Kate had hurried him forward,
and ever forward. There were hours in the
future, when she thought of this merciless haste with
bitter tears; but at the time, her mind had room for
but one picture—her lover condemned, imprisoned for
a crime of which he was not guilty. They had reached
their home but the evening before, and her woman's
tenderness came back with a burst of repentant sorrow,
when she saw her brother sink upon the bed, too
exhausted to speak or move. For a time she almost
thought he had already ceased to breathe, as he lay
prone upon that couch from which he never rose again.
All night the physician had remained beside him, in
the vain attempt to restore his exhausted energies. It
was late in the next forenoon, before she had time to
glance at the morning paper. She had not expected
the trial could take place in several weeks, but now
she read that it was to be that very day. Already
she thought he might be condemned. She seized a
pen, and wrote a rapid note to the lawyer for the defence,
and despatched it to the Court-House. Then
going back to his bedside, she said, in a low, firm tone,
“You must speak now, Harry. Even now Dick Hereford
is on trial for your crime; I have sent a messenger
to the Court-House, and they will come here to
receive your confession.”

His eyes kindled, he raised himself on his elbow.

“Thank God,” he said earnestly, “that I can make
so much of atonement.”

Now that those she had summoned were gathered
about his bedside, he insisted on making a full and
clear confession which should be taken down in writing.
“It is not worth while to trouble about that,”
said Mr. S., kindly. “Hereford has been acquitted,
and we forgive you the fault very freely.”

But he still persisted, and finding he could be
satisfied in no other way, they suffered him to proceed.
Scarcely was the task over when Mrs. Hereford entered
the room with Emmie, followed by the indefatigable
Simon. There was a silent, tearful embrace, in
which Warren folded his long-lost mother and sister
to his throbbing heart, and then all eyes were fixed on
Harry. A fearful change was passing over his face, and
Kate Cunningham, raising her eyes for the first time
since their entrance, whispered hoarsely, “Is it death?”

Her brother caught the whisper. “Yes, it is
death,” he answered, “and it is bitter. I am going to
leave you helpless, friendless, with a stained name.”

“Not friendless,” said Mrs. Hereford, gently;
“not motherless while I live.”

“She shall bear my name if she will,” said Dick's
earnest tones. “This is no time nor place for lover's
vows, but I have loved her well and long.”

Harry's dying eyes sparkled. “Dick Hereford,”
he cried eagerly, “would you wed a forger's sister?”

“I would wed Kate Cunningham,” was the reply,
“if she could think me worthy, and thank God day
and night that she was mine.”

“Kate, dear little Kate,” pleaded the dying man,
“will you not answer him?”

She could not speak, but she placed her hand in
one that clasped it, in that hour of bitter sorrow, with
a pressure whose thrilling touch she remembered every
day of her after life.

For a moment Harry Cunningham closed his eyes,
with a smile of thankful peace. Then his face contracted
with an expression of intense pain, and he
cried out in a wild, despairing tone, “I have prayed
to Him for life, and He will not hear me. I am going,
going to the blackness and darkness, and the long despair.
`To the uttermost farthing,' it says, I must pay
for all—`to the uttermost farthing.' Kate Cunningham,
answer me, doesn't it say so in the Bible?”

Kate could not speak for very terror, but Mrs.
Hereford said, soothingly, “That is to those who do not
repent; but you repent, don't you, and God for Christ's
sake is very merciful.”

“I repent—yes, I repent,” he said, repeating the
words slowly, “but you say hope when there is no
hope. Kate, pray. Repeat that prayer I heard you
reading last night when you thought I was asleep.”

It was no time for hesitation. She knew it was
her voice he longed to hear, and regardless of the

strangers around his bedside, she knelt down, and
bowing her head, repeated in clear, distinct tones, the
Church of England's beautiful prayer for the dying.
He grew weak very rapidly, meanwhile, but it seemed
to soothe him. “It is hard work,” he said, faintly,
when she concluded, “hard work getting ready now,
but I can't live the bad life over again. Don't it say
Christ pardoned the thief on the Cross? Kate, sister,
my eyes are getting dim, so I can't see you very plain,
sing to me. Sing that hymn mother wanted to hear
when she was dying.”

And struggling with her tears, the fair girl sang.
Her clear voice flooded the room with its melody.
Ere she concluded, a smile broke like light over his
dying features. His lips parted, and bending over
him they caught the word “mother!” Then the smile
faded out into the cold, gray hue of death, the young
life lapsed away into the night.

Was there any hope? God and the future alone
can answer the question which those sorrowing mourners
whispered to their own hearts with a thrill of fear.
God is merciful, and human strength is weakness. We
can but trust. Lovingly Kate Cunningham pushed
the clustering curls from that damp brow; tenderly
she pressed her lips to that still, dead face, and turning
away, met, for the first time, the tender kiss of her
betrothed, and then came the blessed tears. Harry
Cunningham had paid the Death Penalty.