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Файл:The Ways of The Hour
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THE WAYS OF THE HOUR
edge, 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
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JAMES FENIMORE COOPER
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
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THE WAYS OF THE HOUR
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 wit-
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JAMES FENIMORE COOPER
nesses; 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
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THE WAYS OF THE HOUR
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.”
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JAMES FENIMORE COOPER
“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 per-
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THE WAYS OF THE HOUR
fectly 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
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JAMES FENIMORE COOPER
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”
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THE WAYS OF THE HOUR
“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
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JAMES FENIMORE COOPER
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 ex-
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