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THE WAYS OF THE HOUR
McBrain, while he took a last look at the little gaol, as the carriage passed the brow of a hill. “Justice can ask no more than
security.”
“It is a blot on the character of the times, and on this coun-
try in particular,” answered Dunscomb, coldly, “that so little
attention is paid to the gaols. We are crammed with false philanthropy in connection with convicted rogues, who ought to
be made to feel the penalties of their offences; while we are
not even just in regard to those who are only accused, many of
whom are really innocent. But for my interference, this delicate and friendless girl would, in all probability, have been immured in a common dungeon.”
“What! before her guilt is established?”
“Relatively, her treatment after conviction, would be far
more humane than previously to that event. Comfortable,
wellfurnished, but secure apartments, ought to be provided
for the accused in every county in the state, as acts of simple
justice, before another word of mawkish humanity is uttered
on the subject of the treatment of recognised criminals. It is
wonderful what a disposition there is among men to run into
octaves, in everything they do, forgetting that your true melody is to be found only in the simpler and more natural notes.
There is as much of the falsetto, now – a – days, in philanthropy, as in music.”
“And this poor girl is thrust into a dungeon?”
“No; it is not quite as bad as that. The gaol has one decent
apartment, that was fitted up for the comfort of a prize – fighter, who was confined in it not long since; and as the room is
sufficiently secure, I have persuaded the gaoler’s wife to put
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JAMES FENIMORE COOPER
Mary Monson in it. Apart from loss of air and exercise, and the
happiness of knowing herself respected and beloved, the girl
will not be very badly off there. I dare say, the room is quite as
good as that she occupied under the roof of those unfortunate
Goodwins.”
“How strange, that a female of her appearance should have
been the inmate of such a place! She does not seem to want
money, either. You saw the gold she had in her purse?”
“Ay; it were better had that gold not been there, or not seen.
I sincerely wish it had been nothing but silver.” “You surely do
not agree with that silly woman, the Widow Pope, as they call
her, in believing that she has got the money of those persons
who have been murdered?”
“On that subject, I choose to suspend my opinion I may,
or I may not; as matters shall turn up. She has money; and in
sufficient quantity to buy herself out of jeopardy. At least, she
offered me a fee of a hundred dollars, in good city paper.”
“Which you did not take, Tom?”
“Why not? It is my trade, and I live by it. Why not take her
fee, if you please, sir? Does the Widow Updyke teach you such
doctrines? Will you drive about town for nothing? Why not
take her fee, Master Ned?”
“Why not, sure enough! That girl has bewitched me, I be-
lieve; and that is the solution.”
“I’ll tell you what, Ned, unless there is a stop put to this
folly, I’ll make Mrs. Updyke acquainted with the whole matter,
and put an end to nuptials No. 3. Jack is head and ears in love,
already; and here you are flying off at a tangent from all your
engagements and professions, to fall at the feet of an unknown
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THE WAYS OF THE HOUR
girl of twenty, who appears before you, on a first interview, in
the amiable light of one accused of the highest crimes.”
“And of which I no more believe her guilty, than I believe
you to be guilty of them.”
“Umph! `Time will show;’ which is the English, I suppose,
of the `nous verrons,’ that is flying about in the newspapers.
Yes, she has money to buy three or four journals, to get up a
`sympathy’ in her behalf; when her acquittal would be almost
certain, if her trial were not a legal impossibility. I am not sure
it is not her safest course, in the actual state of the facts.”
“Would you think, Dunscomb, of advising any one who
looked up to you for counsel, to take such a course?” “Certainly not and you know it, well enough, McBrain; but that
does not lessen, or increase, the chances of the expedient. The
journals have greatly weakened their own power, by the manner in which they have abused it; but enough still remains to
hoodwink, not to say to overshadow, justice. The law is very
explicit and far – sighted as to the consequences of allowing
any one to influence the public mind in matters of its own
administration; but in a country like this, in which the virtue
and intelligence of the people are said to be the primum mo-
bile in everything, there is no one to enforce the ordinances
that the wisdom of our ancestors has bequeathed to us. Any
editor of a newspaper who publishes a sentence reflecting on
the character or rights of a party to a pending suit, is guilty,
at common law, of what the books call a `libel on the courts
of justice,’ and can be punished for it, as for any other misdemeanor; yet, you can see for yourself, how little such a provision, healthful and most wise nay, essential as it is to justiceis
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JAMES FENIMORE COOPER
looked down by the mania which exists, of putting everything
into print. When one remembers that very little of what he
reads is true, it is fearful to reflect that a system, of which the
whole merit depends on its power to extract facts, and to do
justice on their warranty, should be completely overshadowed
by another contrivance which, when stripped of its pretension,
and regarded in its real colours, is nothing more than one of
the ten thousand schemes to make money that surround us,
with a little higher pretension than common to virtue.”
`Completely overshadowed’ are strong words, Dun-
scomb!”
“Perhaps they are, and they may need a little qualifying.
Overshadowed oftenmuch too often, however, is not a particle
stronger than I am justified in using. Every one, who thinks at
all, sees and feels the truth of this; but here is the weak side
of a popular government. The laws are enforced by means of
public virtue, and public virtue, like private virtue, is very frail.
We all are willing enough to admit the last, as regards our
neighbours at least, while there seems to exist, in most minds,
a species of idolatrous veneration for the common sentiment,
as sheer a quality of straw, as any image of a lover drawn by the
most heated imagination of sixteen.”
“You surely do not disregard public opinion, Tom, or set it
down as unworthy of all respect!”
“By no means; if you mean that opinion which is the re-
sult of deliberate judgment, and has a direct connection with
our religion, morals, and manners. That is a public opinion
to which we all ought to defer, when it is fairly made up, and
has been distinctly and independently pronounced; most es-
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THE WAYS OF THE HOUR
pecially when it comes from high quarters, and not from low.
But the country is full of simulated public opinion, in the first
place, and it is not always easy to tell the false from the true.
Yes, the country is full of what I shall call an artificial public opinion, that has been got up to effect a purpose, and to
that no wise man will defer, if he can help it. Now, look at our
scheme of administering justice. Twelve men taken out of the
bosom of the community, by a species of lottery, are set apart
to pronounce on your fortune, or mine nay, to utter the fearful words of `guilty,’ or `not guilty.’ All the accessaries of this
plan, as they exist here, make against its success. In the first
place, the jurors are paid, and that just enough to induce the
humblest on the list to serve, and not enough to induce the
educated and intelligent. It is a day – labourer’s wages, and the
day – labourer will be most likely to profit by it. Men who are
content to toil for seventy – five cents a day are very willing
to serve on juries for a dollar; while those whose qualifications
enable them to obtain enough to pay their fines, disregard the
penalty, and stay away.”
“Why is not an evil as flagrant as this remedied? I should
think the whole bar would protest against it.”
“With what result? Who cares for the bar? Legislators
alone can change this system, and men very different from
those who are now sent must go to the legislature, before one
is found, honest enough, or bold enough, to get up and tell
the people they are not all fit to be trusted. No, no; this is not
the way of the hour. We have a cycle in opinion to make, and
it may be that when the round is fairly made, men may come
back to their senses, and perceive the necessity of fencing in
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JAMES FENIMORE COOPER
justice by some of the useful provisions that we are now so
liberally throwing away. To tell you the truth, Ned, the state is
submitting to the influence of two of the silliest motives that
can govern men ultra conservatism, and ultra progress; the
one holding back, often, to preserve that which is not worth
keeping; and the other `going ahead,’ as it is termed, merely
for the sake of boasting of their onward tendencies. Neither
course is in the least suited to the actual wants of society, and
each is pernicious in its way.”
“It is thought, however, that when opinion thus struggles
with opinion, a healthful compromise is made, in which society finds its advantage.”
“The cant of mediocrity, depend on it, Ned. In the first
place, there is no compromise about it; one side or the other
gains the victory; and as success is sustained by numbers, the
conquerors push their advantages to the utmost. They think of
their own grosser interests, their passions and prejudices, rather than of any `healthful compromise,’ as you term it. What
compromise is there in this infernal code?”Dunscomb was an
ultra himself, in opposition to a system that has a good deal of
that which is useful, diluted by more that is not quite so good
“or what in this matter of the election of judges by the people?
As respects the last, for instance, had the tenure of office been
made `good behaviour, ‘ there would have been something
like a compromise; but, no the conquerors took all; and what
is worse, the conquerors were actually a minority of the voters,
so easy is it to cow even numbers by political chicanery. In this
respect, democracy is no more infallible, than any other form
of government.”
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THE WAYS OF THE HOUR
“I confess, I do not see how this is shown, since the polls
were free to every citizen.”
“The result fairly proves it. Less than half of the known
number of the electors voted for the change. Now, it is absurd
to suppose that men who really and affirmatively wished a
new constitution would stay away from the polls.”
“More so, than to suppose that they who did not wish it,
would stay away, too?”
“More so; and for this reason. Thousands fancied it useless
to stem the current of what they fancied a popular movement,
and were passive in the matter. Any man, of an extensive acquaintance, may easily count a hundred such idlers. Then a
good many stood on their legal rights, and refused to vote, because the manner of producing the change was a palpable violation of a previous contract; the old constitution pointing out
the manner in which the instrument could be altered, which
was not the mode adopted. Then tens of thousands voted for
the new constitution, who did not know anything about it.
They loved change, and voted for change’s sake; and, possibly, with some vague notion that they were to be benefited by
making the institutions as popular as possible.”
“And is not this the truth? Will not the mass be all the bet-
ter off, by exercising as much power as they can?” “No; and for
the simple reason that masses cannot, in the nature of things,
exercise more than a very limited power. You, yourself, for
instance, one of the mass, cannot exercise this very power of
choosing a judge, as it ought to be exercised, and of course are
liable to do more harm than good.”
“The deuce I cannot! Why is not my vote as good as your
own? or that of any other man?”
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JAMES FENIMORE COOPER
“For the simple reason, that you are ignorant of the whole
matter. Ask yourself the question, and answer it like an honest
man: would you could you, with the knowledge you possess,
lay your finger on any man in this community, and say, `I make
you a judge?’ “
“Yes; my finger would be laid on you, in a minute.”
“Ah, Ned, that will do, as a friend; but how would it do
as a judicious selection of a judge you do not know? You are
ignorant of the law, and must necessarily be ignorant of the
qualifications of any particular person to be an interpreter of
it. What is true of you, is equally true of a vast majority of those
who are now the electors of our judges.”
“I am not a little surprised, Tom, to hear you talk in this
way; for you profess to be a democrat!”
“To the extent of giving the people all power, in the last
resort all power that they can intelligently and usefully use;
but not to the extent of permitting them to make the laws, to
execute the laws, and to interpret the laws. All that the people
want, is sufficient power to secure their liberties, which is simply such a state of things as shall secure what is right between
man and man. Now, it is the want of this all – important security, in a practical point of view, of which I complain. Rely
on it, Ned, the people gain nothing by exercising an authority
that they do not know how to turn to good account. It were far
better for them, and for the state, to confine themselves to the
choice of general agents, of whose characters they may know
something, and then confide all other powers to servants appointed by those named by these agents, holding all alike to a
rigid responsibility. As for the judges, they will soon take decided party characters; and men will as blindly accuse, and as
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blindly defend them, as they now do their other leading partisans. What between the bench and the jury – box, we shall
shortly enjoy a legal pandemonium.”
“Yet there are those who think the trial by jury is the pal-
ladium of our liberties.”
Dunscomb laughed outright, for he recollected his con-
versation with the young men, which we have already related.
Then suppressing his risible propensity, he continued gravely
“Yes, one or two papers, well fee’d by this young woman’s
spare cash, might do her more good than any service I can render her. I dare say the accounts now published, or soon to be
published, will leave a strong bias against her.”
“Why not fee a reporter as well as a lawyer, eh, Tom? There
is no great difference, as I can see.”
“Yes you can, and will, too, as soon as you look into the
matter. A lawyer is paid for a known and authorized assistance,
and the public recognises in him one engaged in the interests
of his client, and accepts his statements and efforts accordingly. But the conductor of a public journal sets up a claim to
strict impartiality, in his very profession, and should tell nothing but what he believes to be true, neither inventing nor suppressing. In his facts, he is merely the publisher of a record; in
his reasoning, a judge; not an advocate.”
The doctor now laughed, in his turn, and well he might;
few men being so ignorant as not to understand how far removed from all this are most of those who control the public
journals.
“After all, it is a tremendous power to confide to irrespon-
sible men!” he exclaimed.
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JAMES FENIMORE COOPER
“That it is, and there is nothing among us that so complete-
ly demonstrates how far, very far, the public mind is in the rear
of the facts of the country, than the blind, reckless manner in
which the press is permitted to tyrannize over the community,
in the midst of all our hosannas to the Goddess of Liberty. Because, forsooth, what is termed a free press is useful, and has
been useful in curbing an irresponsible, hereditary power, in
other lands, we are just stupid enough to think it is of equal
importance here, where no such power exists, and where all
that remains to be done, is to strictly maintain the equal rights
of all classes of citizens. Did we understand ourselves, and our
own real wants, not a paper should be printed in the state,
that did not make a deposit to meet the legal penalties it might
incur by the abuse of its trust. This is or was done in France,
the country of all others that best respects equality of rights in
theory, if not in practice!”
“You surely would not place restrictions on the press!”
“I would though, and very severe restrictions, as salutary
checks on the immense power it wields. I would, for instance,
forbid the publication of any statement whatever, touching
parties in the courts, whether in civil or criminal cases, pending the actions, that the public mind might not be tainted, by
design. Give the right to publish, and it will be, and is abused,
and that most flagrantly, to meet the wishes of corruption. I
tell you, Ned, as soon as you make a trade of news, you create a
stock market that will have its rise and fall, under the impulses
of fear, falsehood, and favour, just like your money transactions. It is a perversion of the nature of things, to make of news
more than a simple statement of what has actually occurred.’
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