THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW TRIAL PRACTICE AND TRIAL LAWYERS. A TREATISE OX TRIALS OF FACT BEFORE JURIES, INCLUDING SKETCHES OF ADVOCATES, TURNING POINTS, INCIDENTS, RULES, TACT AND ART IN WINNING CASES. CON- DENSED SPEECHES, A BRIEF SUMMARY OF THE LAW OF ACTIONS, EVIDENCE, CONTRACTS, CRIMES, TORTS, MILES, ETC. ETC. BY J. W. DONOVAN, Author of Modern Jury Trials, etc. ST. LOUIS. MO.: WILLIAM H. STEVENSON, LAW PUBLISHES AND PUBLISHER OF THE CENTRAL LAW JOURNAL. 1 S 8 3. Copyright, 1883, BY J. W. Donovan. T yn\Wr St. Louis, Mo.: Piinted by the Central Law Journal. PREFACE. Twenty questions of fact to one of law, are contested in ordinary trials. Often the wrong side prevails when adroitly managed by a keen, clear spoken counsel, who detects the weakness of witnesses ; aud very often has the faltering story of a timid plaintiff been sus- tained and strengthened by an eloquent illustration in an argument : so that jury trials are won or lost by management. There is a fine art in practice, that comes to one by experience, to another by a series of blunders, while others learn much of it by reading and observation. The great majority will never know it. They are not willing to p$ty the price. Many victories that are cred- ited to counsel, belong equally to witnesses. The vivid story of a single witness, told in a winning way, will leave an impression that no eloquence can remove. The potter has no more power over the clay, than good evidence has over an intelligent jury. It is the art of putting tilings, saying things, and doing things in a way to enforce conviction, that this volume relates to. It is made up of turning points, 667011 IV PREFACE. sketches, references to means of winning cases by in- cidents and illustrations, drawn from the varied expe- rience of advocates in different sections of the country, who have learned and mastered the science of stating facts with clearness. Success in practice depends so much upon the num- ber of clients that one can make himself agreeable to, that the art of gaining business like that shown by Chief Justice Waite, or of winning verdicts by stories like Judge Holmes employed, and that made Abraham Lincoln successful, as well as President, has been care- fully explained in numerous chapters. The experience of successful men, forms the foun- dation of all rules of practice, sketches and incidents here reported. The merest mention of counsel without some illustration of their methods, consumes but a small space in any chapter ; but wherever a name can add authority to a rule or statement, it has been given. The majority of lawyers mentioned are known to the writer; a few are reported from others. It is con- ceded by all whom I have conversed with on the sub- ject, that in trials of fact before juries, trifles often turn the verdict, and men can learn much from each other on turning points of practice. This is what I have attempted to show in these pages. And as for the effect of eloquence — I have heard Gen. Butler in his powerful Philippic on an Indianapolis editor, when hun- PREFACE . V dreds stood upon the seats and shouted, "Hit him again ! Give it to 'im ! ! (smiting their hands together, J Give it to 'im ! !" until I realized the force of "fighting" elo- quence. I have heard Gough give his nineteen rewards to the faithful, looking up toward the heavens with expanded nerves, and eyes dilated, face all ablaze with magnetism, hands charged with electricity, and tones tuned with the finest melody. I have seen Benjamin F. Taylor when he marched the forces up the sides of Lookout Mountain, and pictured the battle above the clouds with lifelike energy — pictured it so graphically that we could almost hear the final shout of victory that shook the hills of Tennessee, when the boys in gray retreated from the boys in blue. I have heard the echoing shout receding over Cemetery Hill, caught up by Union forces and carried through the ranks of the entire army of the Cumberland ; I saw the audi- ence sit spell bound at the close, dismissed by a waive of the chairman's hand, so touched by the grandeur of the scene that they marched out in silence from College Chappel, and I called that eloquence, but it was imag- inary. I have heard Phillips describe the conduct of a heroic general till he called before us the mighty dead, like Napoleon, "Wellington and Alexander, and "dipping his finger in the sunlight," wrote on the blue arch of Heaven the name of his brilliant hero,, and I was thrilled by his graphic description, and even Vt PREFACE. that was imaginary. And when a real picture came before me in a New York court room, and Beach was the champion of a discarded wife by a wealthy husband, and when I heard him rehearse her wrongs, and tell her simple story to a jury, and listened to their verdict of heavy damages, I knew, and felt, and realized the power and force of eloquence, and thought it would be instructive to repeat it, and describe it as a lesson to .advocates. J. W. D. Detroit, July, 1883. INDEX. ABOUT TRIALS, 62. ACTION, 3. ADROITNESS. 47. ADVOCATES. 246. ATKINSON, 303. ARGUMENT, 37. ARNOLD, 238. ASSUMPSIT, 194. B BEACH, 260. BLACKBURN, 295. BLACK, 296. BLACK, W. P., 280. BLISS, 266. BOOTH CASE, 175. BRADY, 4. BRADBURY. - BREAUX. 292. BRIEF, 99. BROWNE, 308. BUTLER, 249. CAMPBELL. 294. CANDOR AND DIGNITY, 102, CARLISLE, 2* CARTER. 294. Vlll INDEX. CARPENTER, 20. CHEEVER, 304. CHICAGO BAR, 26S. CHIEF JUSTICE WA1TE, 41. CH1PMAX, 302. CIIOATE, RUFUS, 253. CHOATE, JOSEPH, 264. CINCINNATI BAR, 282. CIRCUIT COURT PRACTICE, 142. CIRCUMSTANTIAL EVIDENCE, 117. CONKLING, 249. CONTRACTS, 196. COURAGE IN COURT, 155. COR WIN, 21. CRIMINAL CASES. CRIMINAL DEFENSES, 65. CRIMINAL PROSECUTIONS, 63. CROSS-EXAMINATION, 70. CURTIS, 264. D DAMAGES, 197. DAVIDGE, 2S6. DEXTER, 268. DICKINSON, 15. DICKINSON, DON. M., 303. DILLINGHAM, 16. DIVORCES, 172. DOOL1TTLE, 278. DOUGHERTY, 296. ELOQUENCE, 6. EVIDENCE, 198. EVABTS, 258. FIELD, 267. FINK WORK, 71. FISHBACK, 235. INDEX. IX FORCE, 56. ■FOKGERY, 201. FRAUD. 199. GENERAL AGENCY, 200. GENIUS, 84. GIVE A LITTLE, 152. GORDON. 30S. GREELEY'S TREE. 99. GRTFFIN. 303. H HALE, 299. HANCHETT, 305. HARRIS, 295. HARRIS, OF ALBANY, 29S. HARRIS, IRA, 299. HARRISON, 307. HARRISON, 234. HENDRICKS, 305. HIS FIRST CASE, 119. HOADLY, 282. HOMICIDE, 201. HOWE, 292. HUMAN NATURE, 31. INDIANAPOLIS BAR, 305. INGERSOLL, 236-2S8. IN THE PROCESSION, 232. JOHNSON, 283. JUSTICE CASES, 132. JUSTICE STORY, A, 140. K KIRCHNER, 221. (6) INDEX LARNED, 302. LAWYERS' ADVICE, 37. LAWYERS NOT ON TRIAL, 60. LETTER WITNESSES, 130. LIKES AND DISLIKES, 136. LINCOLN, 19, 250. LINCOLN, ROBERT T., 271. LINCOLN, T. D., 2S3. LOTHROP, 302. M MacLEAN-SCRIPP LIBEL CASE, 221. Mcdonald. 307. McSWEENEY, 2S4. MANAGING CASES, 37. MARSHALL AND CRITTENDEN, 9, MARSTON, 302. MAXIMS, 173. MAY ON LINCOLN, 250. MEMORY OF LIVES, 312. MERRICK, 287. MICHIGAN BAR, 302. MILLS, 273. MISER'S HAND, 310. MISTAKEN IDENTITY, 219. MUNN, 280. MUNN IN CLARK MURDER CASE, 241. O'CONNOR, 257. ON HIS MERITS, 109. ONE OPINION, 96. ONLY ONE WITNESS, 230. ORATORS AND ORATORY, 210. ORDER OP TRIALS, 165. ORDER IN' OK KICK. 25. P PARTNERSHIP, 205; PECKHAM, 298. INDEX. XI PECULIAR ADVOCATES, 15. PERSONAL PROPERTY, 206. PHILADELPHIA LAWYERS, 295. POND, 304. PORTLAND BAR, 299. PORTER. 259. PREPARING TRIALS, 23. R REMEMBER LITTLE THINGS, 1G0. RESERVE FORCE, 58. RIGHTS AND REMEDIES, 193. RUSSELL, 304. RYAN, 13. RYAN, ISO. SEMMES. 291. SEPARATING WITNESSES, 43. SEWARD, 11. SHARP PRACTICE, 112. SHAFFER, 261. SHIPMAN, 228. SHORT SAYINGS, 169. SOLDIER'S VERDICT, 157. SOUTHERN BAR, 289. SOUTHERN LAWYERS, 293. SPECIAL VERDICTS, 83. STANSBURY, IS. STATING CASES, 34. STORRS, 270. STRANGE DEFENSES, 147. STRANGE SUCCESS, 168. STROUT. 300. STYLE OF SPEAKING, 244. SWETT, LEONARD, 271. TACT AND SKILL, 45. TAKING WRONG POSITIONS, 79. Xll INDEX. TALKING TOO MUCH, 10G. TEN TRIAL RULES, 29. TENDER AND TROVER, 20S. TOTTEN, 2S7. TREMAIN, 11. TRIAL ELOQUENCE, 234. TRIAL LAWYERS, 1. TRIFLES THAT TELL, 81. TURNING POINTS, 68. TURNING VERDICTS, 113. VALLANDIGHAM, 17. VAN ARMAN, 2G9. W WAITE'S START IN LAW, 41, WASHINGTON BAR, 2SG. WEBSTER AND CHOATE, 248. WEBSTER. 254. WESTERN JUSTICE, 135. WHEN TO STOP, 158. WILLS, 208. WINNING CASES, 54. TRIAL PRACTICE. CHAPTER I, TRIAL LAWYERS. THEIR ART, MANNERS, SKILL, AND ELOQUENCE. Trial lawyers, commonly called advocates, generally show a natural genius in lawsuits very early in practice,, whether vivid, graphic, powerful, or eloquent speakers, their first efforts reveal their style, and future pros- pects of success. A real advocate is a genius ; he may- be an excellent trial lawyer with but very few of the graces of an orator, but he can never become a reat advocate without natural faculties, warm sympathies, keen knowledge of human nature. The skill, art, character and arrangement of speeches give them force and effectiveness. Gifted speakers are rhetorical and logical by nature ; their words flow spontaneously and apply to the subject and the hearer with very little effort in selection. But the greatest advocates have added to nature's rare gifts, the polish of learning and acumen, anecdotes and illustrations, 2 TRIAL PRACTICE. with a wealth of excellent quotations to clothe and adorn their arguments. Good arguments are not made by accident — occa- sional bursts of eloquence may come without fore- thought, but speakers like Clay and Everett relied upon careful study and thoroughness of research, and so, in the history of American advocates, the leaders, the trial lawyers of power and influence, have been naturally gifted and highly cultivated ; their arts of practice are full of interest and instruction to all who follow similar callings. Within the era of thirty years, and especially since the American conflict, a greater variety of subjects have been argued to juries, and, on the whole, a better line of arguments have been made than the average of any previous years in America. True, in England, there have lived but one Erskine and one Burke, in Ireland, but one O'Connel and one Cumin, and in America, a single Webster, a single Choate, but one O'Connor and another Prentiss, whose places are never tilled by recent rivals, but, in the main, a succession of brilliant men have brightened the pathway of modern trials with excellent examples of wit, humor, sagacity, and effective eloquence. With the examples of success in the practice of the advocates mentioned, the world is already familiar. They were like sun-light to their brethren, and need neither comment nor coloring to enhance their brill- iancy. But there arc others, more modern and less understood, that seem a closer connecting link with our generation, whose career it is well to remember, and whose well-won victories will form a part of the ACTION. 3 Trial Practice, discussed in this volume. As all trials are presumed to be managed by advocates as much as plays are dependent upon their chief actors, it may be well to glance occasionally at some of the past leaders of the American bar, who have been head-lights to their followers, and may remain so for generations. To this end, I will assume to mention whatever is instructive in the career of men in different States, believing that an actual example will be more effective than mere theories of practice. ACTION. When a great master said that the first, second, and third requisite of oratory consisted in action, he evi- dently knew that the action of an orator was better understood than their average speeches. The dumb brute can detect his master's look of pleasure or un- kindness. The child can comprehend a motion and a gesture, and of all things clear, the simplest and clearest are looks and actions combined. The native Indians and frontier foreigners use limited words and " wink with their hands," as the Germans say, to con- vey their meaning. It is not strange that men are muddled on a jury, when even court and counsel often find it difficult to settle a legal controversy. Actions attract more attention than words. The eye is wiser than the ear and wiser than the head. It is never satisfied with seeing. The curious motion that reveals some new plan of argument, is sure to be noticed, especially if graceful and appropriate. Be- sides, gestures are always original : they can never be 4 TRIAL PRACTICE. studied ; therefore, they are newly born in view of a jury. To secure such attention as to make an audience follow with their eyes the upward and onward gestures, is to be eloquent. Actions are eloquent, often pathetic or strong and determined, or faltering and courageous or even weak. They reveal emotions, and express truth or dishonesty. Often has a pause like that of Patrick Henry, in the midst of his greatest of speeches, been more effective than twenty sentences: "and George the Third," — " may profit by their example." The power of Judge Ryan's arguments consisted in his command of excellent English and force in gesture. © © Webster's remarks of Bunker Hill Monument, " let it rise, let it rise, till it meet the sun in his coming," must have been majestic in sight of a vast concourse to see him rear the $>;reat ligure in the air before his © © hearers. If the jury can read from a counsel's actions, they may read from a witness and a client, and the case is often won or lost by the straight-forward actions of the witnesses and parties, to say nothing of counsel's candor. Jilt AD Y. James T. Brady was, next to John Van Buren, the greatest criminal lawyer of New York City. A born genius, equipped with a line form, size, voice, and en- gaging manner, brimfull of wit, humor, anecdote, knowledge of human nature, pathos, and an attractive delivery. His speeches were bristling with points from end to end. He was fertile in resources, ready in debate, tolerably well versed in law, highly rhetorical, and BRADY. •generally eloquent. Mr. Brady was a great after-din- ner speaker. Like Tom. Corwin, his natural tendency was toward wit, but his brilliant imagination never ran lono- in one sfroove. Engaged in the Sickles-Key cases, the Cole-Hiscock trial, and many more of great prominence, he became known as a great criminal law- yer more than a general counsel. He had pleasing and expressive eyes ; a warm, cleanly-shaven face, curly hair, and small mustache, and seemed very young ; in fact, he died in his early prime, but gained the reputa- tion of a master advocate. The efforts of Mr. Brady throughout the Empire State were ever pungent and powerful, thrilling in interest and extremely touching in many passages. His keen ingenuity and mastery of human passions was a marvel to the bar, and an entertainment to every jury before whom he appeared as counsel. He had piercing eyes, and attractive manner, and won by strange resources that seemed always his own. He was admired for his wit, and loved for his generous nature. His appeal to the court in defense of General Sickles, in Washington, will never be forgotten by any who were fortunate enough to be in hearing when he pictured the father's first meeting with his child after hearing of his wife's dishonor. The statement of Mr. Brady was so vivid and life-like, that General Sickles was completely overcome, and argument was suspended till he could be removed from the court- room. Seeing its effect, Mr. Brady rested without a word to the jury, and won easily. He died young in years, but ripe in honor as an advocate. I cannot re- frain from adding a brief passage of his TRIAL PRACTICE. ELOQUENCE. In closing, Mr. Brady said : " He seemed," said this distinguished witness, his- own heart filling up and overflowing, as he recalled the scene ; " he seemed particularly to dwell on the dis- grace brought upon his child." These words set free the tempest that had so long been pent up. As they fell from the lips of Robert J. Walker there occurred- here in this very court a scene which from the memo- ries of those who witnessed it never will be, never can be, blotted out. All eyes were turned to the dock ; every eye was eager, fixed, dilated, quivering; audi there was he, he who from the first hour of imprison- ment down to the utterance of those words, had borne- himself with heroic calmness, suddenly overcome and racked with relentless grief, stricken down as though he were himself the motherless and houseless child for whom he wept, smitten to the quick and beaten to the dust ; drenched in the gall and wormwood of a tribu- lation, the depth of which no mortal hand can sound, and over the subsiding flood of which no arch of peace can ever shine. There was he, the avenger of the in- vaded household of the more-than-inurdered wife, of the more-than-orphaned little one ; there was he, in an appalling moment of parental agony, subdued at last. Talk of the mind diseased — talk of the circumstances that unhinge, upset, and madden it — talk of the dis- traction into which a ruthless perfidy had plunged my client and my friend — talk of his condition of irre- sponsibility when he dealt the fatal blow — talk of this* and with your worrying interrogations strive to elicit ELOQUENCE. . 7 the recollection of it from those who, themselves the witnesses of it, who were themselves agitated as they never were before. Nature, heaven, God himself, in his heart-broken image here, became here, in this very court, the witness of the torture by which on that terrible day, the 27th of February, the prisoner was inflamed. " You beheld the scene of the 12th of April. It was the same as that to which Robert J. Walker testified. Recall this scene. Think of how the proceedings of this court were suddenly arrested by the sobs of the prisoner when the beautiful image of his poor child was revived by the words of Robert J. Walker ; how he was bowed to the earth, and how he writhed as though an arrow were buried in his heart ; how, sup- ported by his friend, he was led from this court, his vision quenched in scalding tears, his limbs paralyzed, his forehead throbbing as though it had been bludg- eoned by some ruffian, and his whole frame convulsed. Recall this scene. Think of this ; think of the tears vou yourselves shed as this stricken victim was borne by — think of this — and then may we well say to the jury: if your love of home will suffer it, if your gen- uine sense of justice will consent to it, if your pride of manhood will stoop to it, if your instinctive perception of right and wrong will sanction it, stamp murder upon the bursting forehead that has been transpierced with the thorns of an affliction which transcends all other visitations; and for the scandal, the dishonor, the profanation, and, in the end, the devastation which provoked this terrible outburst, this tempest of grief, this agony of despair, as Robert J. Walker described 8 TRIAL PRACTICE. it ; for this incalculable wrong, I say, and for this ir reparable loss, declared by a verdict for the prosecu- tion that so many thousand dollars, an appropriation from an economic or swept right off from a lavish jury, can afford a soothing compensation. Do this ; do it if you can, and then, having consigned the pris- oner to the scaffold, return to your homes, and there, within those endangered sanctuaries, following your ignoble verdict, set to and teach your imperiled wives a lesson in the vulgar arithmetic of a compromising morality, and let them be inspired with a sense of womanly dignity by a knowledge of the value you at- tach to the sanctity of the household, to the inviolabil- ity of the wife, to the security of the hospitable roof, and last of all, but above all, to the inherited tradition of an innocent, but ruined, offspring." STANTON. Edwin M. Stanton, the companion of Brady, and great war secretary, was no less artful and logical, and often more powerful in debate, but opposite in build, manner and plan of advocacy. He won his cases more by adroitness of management and soundness of reason, than by pathos or appeals to passion. He was the associate of .Mr. Brady in the Sickles trial, and ably did his work, fully consenting to drop the defense after the court-scene already described, as a wiser measure than further argument. He was large, tall, and dignified, and never forgot the gravity of an'advo- cate's high calling. His manner was impressive and his methods ingenious. In a famous trial near Cleveland, MARSHALL AND CRITTENDEN. !> before the war, he was given a $1,000 retainer to save a young man from the gallows, who had stabbed a rival in a ball-room, after having threatened in the hearing of companions to do so, with only jealousy for a motive. Mr. Stanton's management of this de- fense was masterly. Reaching the county-seat, he early learned that public sentiment was deeply aroused, and still a few were opposed to hanging in general. He was cool and quiet, said not a word, and noted the evidence carefully. He was opposed by the eloquent statesman and lawyer, John A. Bingham, and knew too well Bingham's power with the jury. The junior advocate concluded a short address for the people, and referred to his associates who should follow. Silence became intense. The court room was packed with listeners. "Proceed, Mr. Stanton," said the court, gravely, and a ruhHe went round as the strong man arose and said in measured tones, " I have no remarks to add, your Honor." Bingham was white with rage. This cut him off entirely. He tore his notes in shreds, muttering imprecations at Stanton's trick. Deep dis- appointment followed. The case was duller now ; the jury said, " Murder in the second degree," and saved the young man's life. But this was Stanton's sagacity. MARSHALL AND CRITTENDEN Were another pair of brilliant Kentucky advocates, ■within this range and period, who stamped their char- acters on the Southern bar, as lasting monuments of fame and forensic eloquence. They were quite unlike in build and language, yet greatl} T similar in their man- 10 TRIAL PRACTICE. agement of cases. Tom. Marshall was tall, slim, a Henry Clay build, and sparkled with wit and repartee in jury trials for years ; at times grave, severe, chaste ;. always original and effective ; in manner somewhat ex- centric ; a full master of human nature ; trained and cultivated, but born eloquent. His speech in the Matt Ward case is a model of rare passages. He never met the fullness of success in political life that came to his associate in the Ward trial mentioned, but it was difficult to say which one, Tom. Marshall or John J. Crittenden, moved the jury most or best pleased- the audience. Mr. Crittenden was a refined, though bold speaker. His dignity as a senator, governor, and statesman followed him in trials, with signal effect,, everywhere. But he never rested on such resources. He was well-read, and persuasiveness seemed his art of winning juries. The candor, high sense of honor, rare knowledge of men, firmness, and courtly bearing did much to enforce attention. He had a fine presence, rich voice, modulated like sweet music. He was clever and candid, and brought tears to his hearers by a beau- tiful quotation read from a German author, where justice, truth and mercy, came and pleaded with the creator, saying (of man's creation) : " Make him not, father : he will defile thy temple ; make him not : he will trample on thy law:" and, finally, mercy kneels and says : " Oh, make him, Father, and I will follow him, and at last bring him back to thee." From this beautiful selection Crittenden will be remembered long after his statesmanship is forgotten. It is known as Cov. Crittenden's allegory. He and the genial Tom. Marshall are gone, but their eloquence is not forgotten. SEWARD TREMAIX. 11' SEWARD. The genius of William H. Seward as advocate, is not easily overestimated. A man of small mold, neither large nor commanding, but intensely original and bold in his thought and action, he needed no counsel and preferred to try his case alone from the beginning. His sentences were measured, but pithy and full of logic. His art was work with a system well directed. He was ripe in learning, courageous in the belief of victory, and zealous in all his undertakings. In speak- ing, he seemed to grow taller and larger, and expand with his theme to a force hardly looked for in a man of his proportions ; more a statesman than orator, yet once enlisted for a client, his efforts never flagged till victory relieved him of his burden. It is believed that his conscience prompted his action as an advocate more than his retainers. Possessed of means and a large clientage, he could command any amount of ideal cases in which to exert his eloquence,, but the poor and rich, friendless and influential, re- ceived alike his best legal services. Like Lincoln, his great and successful rival for the presidency, he had a heart that beat for all humanity, and slighted no one who commanded his talents. Unlike Lincoln, he was elaborate in his efforts before juries and clothed his language in the flowers of classically-quoted learning. TREMAIX. Lyman Tremain was another of New York's great advocates, whose wit and logic, eloquence and skill,, will long remain in the minds of his juries and clients^ 12 TRIAL PRACTICE. Tall and commanding in person, grave and determined in manner, powerful and sublime in reasoning, he em- bodied all of the rare requisites of a master advocate. He cut his arguments as if out of solid marble, first rude, then shapely, then polished. His thoughts were inspired by great events. His dark complexion and Websterian manner needed an occasion to stir his nature to its real depths. He struggled with his juries like an athlete in an arena, trying first one means, then another, to meet and overcome their opinions. He was an ideal advocate in this. That he mastered the law and facts fully and presented both thoroughly, and yet his style was individual. He had but little of the pathetic, and, unlike Brady and Marshall, he needed thorough preparation and great trials to draw his fire, as soldiers express it. In his defense of Stokes, that is a monument to any advocate, he based his argument equally on four grounds : self-defense, poisoning, probing and insanity. All ably sustained and elo- quently urged. His effort was his last of capital de- fenses. Before this, he had often appeared for the people. Not a statesman, he goes into history purely as a great advocate, and ;t ripe counselor. RYAN. Ryan and Carpenter, long the great rival advocates of Wisconsin, attained national eminence during the war. Of opposite dispositions, but natural genius, they reached the summit of fame in jury cases in their native State before Mr. Carpenter became the brilliant senator of the West, and Judge Ryan adorned an lion- RYAN. 13 ored seat on his State Supreme Court bench at Madi- son. Both men were learned. Judge "Ryan believed that every word in our language had an appropriate meaning, and sought through varied dictionaries to search it out. Every faculty great, every passion in- tense, every undertaking mastered, but himself he could never rule. Erratic, high-tempered, and easily nettled, his career was somewhat marred by his bursts of anger and lack of genial bearing. Born a genius, like Webster, his politics differed from the average sentiment of his State, and no open opportunity ever led him to national eminence, like his competitor, the genial Matt Carpenter, whose career was so busy that he even declared he never had time for society. Judge Ryan made a study of the reason of things. The happy harmony of his sentences is noticeable in all his speeches. He revelled in the style of Addison and Burke. Even in his intensest anger, he was sublime in expressions : full, ready and exact, without fear, and with distinguished ability, never popular. He feared no man's argument when he was grounded in the right. At the bar he was a giant that crushed all little ob- stacles. His size was not unlike AVebster's, with a warmer and more impulsive nature. In Webster's seat, at Washington, who knows what a name he may have carved in history. Surely in a court room he never would have feared the greatest of New England's advocates. It was largely his location and lack of a field for fame, that robbed him of glory and renown. He had read and mastered languages. He could rea- son with the greatest. He lacked no art of eloquence,, neither from fire, fervor, nor beauty of modulation,. 14 TRIAL PRACTICE. and yet he passes into history as a great judge, and his speeches are rarely seen in print. As high as $50 a copy has been offered for Kyan's speeches. His lan- guage was always fine and forcible, and often eloquent and beautiful. His feelings were strong and temper- ament ardent ; his manner earnest, often vehement and denunciatory. His power of sarcasm uneqalled. He abounded in metaphors. His figures were brilliant. His replies salient. His appeals all powerful, persua- sive, and convincing. America has not produced an advocate with greater command of language. And from this we learn the value of urbanity. DICKINSON". 15 CHAPTER II. PECULIAR ADVOCATES. Daniel S. Dickinson, of Binghampton, N. Y., was a senilis in oratory, and a rare advocate. To have " Dan " Dickinson was almost a victory from the hrst. His first case was tried about 1384, when he drove a one-horse wagon into Binghampton, himself bare- footed and ragged, with his worldly goods, his wife and child, and little or no means to provide a living. It happened the same day that a suit was set for trial at the hotel where he was stopping for dinner, and a banker, seeing his bright look and poor apparel, en- o-ao-ed to pay him a small sum to help in the case, which he did cheerfully. It was arranged that he should close, and so great was the expectation to hear a barefooted lawyer speak, that men left their shops, children ran away from school at recess, and even the banker had a seat within the railing. Dickinson never made a better effort to reach a jury. He was young, impulsive, full of cmotations and warm argument. He talked directly to each juryman, one at a time. He seemed to guess their calling, and opened with the re- mark that law is the shield of the poor man's rights, -as well as the rich man's possessions. That a simple 1(> TRIAL PRACTICE. change in circumstances ; a death of a partner or a father, might soon scatter the earnings of a lifetime, and leave dependent children at the mercy of a char- itable community. He quoted a verse of Burns that u man was made to mourn.'' He touched on the means and struggles of earning a living, and turned to the tenant case only when his voice had reached the real melody of a song, saying : " And this is the house you are to carry from the heads of his children, and this is the family you are turning from their home, and this is the mercy that our friends would have you show." " But we will not," broke out a juryman, with a resolute look and a face well wet with involuntary tears. Instantly rejoined the speaker, " Then I am done," and cries, '"go on, go on," came from the banker and others, and confusion followed a verdict for the barefooted lawyer, who was made attorney for the bank, and became a statesman. DILLINGHAM. Governor Dillingham, of Vermont, was, in his day,. a powerful advocate A man of good presence,, medium sized, educated in books and men, thorough in law, and equally so as a real student of human nature. He early acquired fame and fortune, with a fine clientage, in Vermont, whore he was long known as Governor Dillingham, and a great favorite as an orator. He had a wonderful memory, a fund of rare humor, a keen, incisive way of cutting legal knots, and happy surprises in his conduct of trials that are always attractive. Merchants would close their stores, and VALLANDKMIAM. 17 farmers would quit their fields, to hear him. At one time, in an interior town, he was detained over night at a hotel where a lively law suit was in progress — suits were held in bar-rooms then. The Governor grew un- easy, called defendant's counsel aside and asked per- mission to aid him in closing to the jury, which request was granted. Quietly suggesting occasional points, he waited his turn to speak. Addressing the jury as a neighboring farmer who had dropped in to hear the fun, he gradually reached the real pith of the contest, and suddenly burst forth in a volume of such eloquent thoughts, stories, and copious reasons, that the jury sat spell-bound to the close. The plaintiff's counsel, up to this time confident of victory, was so completely captured by the apt words of his adversary, that his reply fell flat and unnoticed. The jury found a verdict for the gray-haired farmer, whom counsel congratulated as "a mighty good talker, anyway," and later, learned, to their great amazement, that he was the State Governor. His art was in his human- nature style of reasoning. VALLANDIGIIAM. Clement L. Vallandigham was the most brilliant advocate of his day in Ohio, where he had an im- mense court practice, and excelled as an advocate before juries, in both civil and criminal cases, for a score of years. He was tall, slim, with sharp fea- tures, Roman nose, and eagle eyes, magnetic in tone, power, and expression. His speeches abounded in illustrations, wit, and skillful setting of all the minor (2) 18 TRIAL PRACTICE. details. He was an exhaustive reasoner, a real vol- cano when aroused in heated discussion. His arms, hands, and body, seemed in harmony with his rapid thought and earnest conviction. He had intuitive genius. He was utter self-oblivion in all his gestures, bitter in speech, and determined to win all victories. Graphic and dramatic in style, he suited his words and actions to perfect harmony. His sentences were cut in short, spicy sayings, that rang in the ears of the jury, and were intensely powerful and convincing. His art was in his clearness. Every particle of testi- mony illustrated, while in manner he was as vivid as Choate, and earnest as Seward. He died young, by his own accident, in showing how a woman could shoot herself with a pistol, in a famous murder trial, soon after the rebellion. STANSBURY. Henry Stansbury, leader of the Cincinnati bar for years, who died since '75, was a literal Cyclopedia of legal knowledge and acumen. Tall, spare, slim, of the style and manner of Chief Justice Marshall, he possessed, in a marked degree, the genius of reaching a jury by other means than eloquence. He was a pioneer in Kentucky, and lived at Newport, near Cincin- nati ; grew wealthy in heavy cases in all branches of legal practice. The sturdy sense, courtly bearing, and natural aptitude for legal discussions, were the forces employed to carry his arguments. Juries be- lieved him. They took what he said as a child would take food from a parent. He was a giant in law, by reason of his commanding abilities and admirable ABRAHAM LINCOLN. 19 character. For years he drew around him the best elements of his adopted citv, and stood at last as a venerable and venerated monument in the courts of Ohio. ABRAHAM LINCOLN. Honesty, integrity, candor, and clearness in speak- ing, were the chief characteristics of this wise, shrewd, far-seeing man, who won nearly all his jury cases for years before his election to the Presidency. He was logical, and had such a fund of clear illustrations, that his conclusion when reached, seemed the only one possible to contemplate. He was utterly wanting in low cunning, and yet crafty by his candor. His reasoning was founded on his unerring judgment of human nature, and first com- pared with some simple object that he, and his hearers, could not fail to agree upon. His marvelous fund of humor, was never better used than before a jury. A good, clear-cut joke was to him, an excellent argu- ment — it always is to a jury. Like Seward, he relied upon himself, and depended on his own judgment. Appearing to waver, he was self-asserting when it best served his purpose. He believed in his points before making them, and soon made others come to the same conclusion. His instinctive knowledge of men, taught him that either side might have minor rights ; but only one central controversy should be settled in a suit, so he waived the less to gain the greater. He was a thinker, and carried his plans in deep silence to and from his office, gaining strength by revolving them in his mind. 20 TRIAL PRACTICE. Great and noble in his natural sympathies, he never forgot his nobility by elevation as head-servant of a mighty nation. The same counselor, friend, and ad- vocate of right and justice, went to mold and make the martyr that first made the man. With such qual- ities added to a warm, friendly feeling, a sympathetic and often eloquent voice, with a will to do equal and exact justice, with an inclination to speak and act,, and do his part in absolute rectitude, what wonder he succeeded ! He had every requisite of an advocate, form, life, voice, fancy, logic, honesty, ambition, knowledge of men, knowledge of law, mastery of facts, clearness and belief in his cases — having selected for trial, only such as were morally certain to bring him a victory. Even with Webster such a mind would have shown no weak comparison in a contest before a jury. The reader will see more of Lincoln in a separate chap- ter. CAEPEXTER. The brilliant career of the genial and ever busy Matt Carpenter, is quite generally known. His law practice during the last years of his life, was mainly in the Supreme Court at Washington. But we will notice his earlier career as an advocate. His presence was tine and imposing, large, tall and graceful ; smoothly shaved, save a mustache; heavy hair and large eyes ; rather a broad head and sinewy frame ; musical voice of great power; witty and clear in his replies ; .a real orator in court or Congress. He saw a case in the center. He framed his speeehes like a rare bouquet, adding flower to flower until they were- beautiful. He CORWIN. 21 was logical and strong, full of ingenious devices and captivating in the terseness of illustrations ; one of those sweeping orators that carry an audience like Garfield did, by sublime passages to the height of sublimity. Carpenter was great with juries, great M-ith courts, and at home with witnesses. Every inch an advocate, and genial enough to attract a host of personal admirers, who crowded in to hear his closing speeches. He early adopted a plan of terse reasoning- through stories, illustrations, but his style can not be said to be at all trilling. He died young while United States Senator. In his contests with Judge Ryan, he was about evenly matched. CORWIN. Tom Corwin, the wit and genius of Ohio, twenty- five years ago, was a man of wonderful ability, and gifted as well as brilliant, as an advocate ; tall, large, dark hair, dark eyes and complexion, large forehead, smoothly shaven face. In style, varied, at times logical — again humorous, then brilliant and rhetorical : vivid in imagery, graphic in descriptions — a master of men and eloquence. His career, as an advocate, is scarcely equalled in any country. While Senator, in Washington, the Ohio Ten Mile Valley R. R. Co. was formed, and Mr. Smith made president. Suit arose and no one but Corwin could answer for opponents of the scheme. He came on to argue a dry demurrer. A lawyer, for a joke, sent word that Tom Corwin was to speak in the court house. He found the court yard and court house filled with people. He walked in and shook hands with lawyers 22 TRIAL PRACTICE. in a friendly and surprised manner. The one who had formed the joke was among them. " How is this? " said Tom. " They heard you were to be here ; they came from the hills and valleys, to hear you." Corwin took it all in a glance. With great dignity, he said : " May it please your honor, I am pleased over this large array of people ; I am honored ; I am de- lighted." He expressed his surprise. He touched the demurrer five minutes, then touched the crowd. They laughed, cheered, till almost uncontrolable. Corwin went on: "I dreamed last night, your honor, that I stood upon an eminence and saw wagons coming from the valleys of this beautiful county of Miami. I stood under a tall sycamore tree. There was a table spread with the luxuries of the fields, by the husbandmen and their wives. When everything was completed, and the tables were so crowded with good things that they seemed ready to break, I saw at the head of that table, the president of the Ten Mile Valley K. R., at the foot, the vice-president. The father and mother, side by side ; the lovers and brothers all eating of the delicious fruits ; and one man proposed this toast : ' Here is to the father of his country, Washington; first in peace and last in the hearers of his countrymen.' Then one said : 'I propose a toast, * President Smith, of the 10 Mile Valley R. It. Co.* Instantly the concourse vanished ; tables disappeared. It was a dream; now, your honor, had it been built, the dream woidd have been a reality! But the whole paper road is a dream ! "' He Avon his case, amid rounds of applause. PREPARING FOR TRIALS. 23 CHAPTER III. PREPARING FOR TRIALS. When a case is taken for examination, and witnesses are tendered to sustain either the theory of prosecu- tion or defense, something may be gained from first hearing his own story, told in his own way. It may need pruning to come within the rules of evidence. Most witnesses are inclined to bring very much hear- say, which is not only a waste of time, but causes them to be tripped and confused during delivery. If a wit- ness is told that such objections will be common, and must be borne with, and should not be a cause of anger or short answers, he will be more patient and reasonable on the stand. The machinery of trials will run with far less friction if witnesses and counsel un- derstand each other in advance. A good trial lawyer will please a court and jury, by even an orderly ar- rangement of facts and circumstances. Some witnesses are too low voiced to be heard, and told to speak louder, at trials, will be confused by it, who, if made to understand that their story is to be told in all respects as clearly as they would explain it to a family circle ; that to be pert, cranky, or too independent, will lead opposing counsel to greater se- 24 TRIAL PRACTICE. verity. Human nature is such, that persuasion is most likely to please, and kind answers to beget kindness. It is a mistake to instruct witnesses to be over positive, or attempt to vary from the truth. Truth will tell the same story a thousand times without variations. It is such an armor of strength ; it nerves one with such supreme confidence that counsel can safely reas- sure all his witnesses to a certainty that in telling the clear truth they are never likely to be tangled, or to cross their stories, and become a subject of ridicule. I can better explain this by an incident : A lady was suspected by a clerk of shop-lifting, and invited into the private office by the merchant, who abruptly ex- plained that she had been caught in the act. Her conscious innocence did not desert her for a single mo- ment, and she asserted it openly and boldly. The merchant insisted on a search being made, and she readily consented, adding, " What have 1 taken, sir? " " Handkerchiefs," he replied, " there is one in your reticule." This she handed out boldly, and it con- tained but one handkerchief, which the greedy man held up in gratified delight. " But, you goose, you," said the now indignant woman, "that has my three initials plainly marked in ink, and was bought here month* ago. The three 1 bought to-day will be here in a moment, with my change, which I was waiting for, when you invited me here with such impertinence." Just then the cash and parcel boy arrived as she had stated. The woman's look of triumph was a sharp contrast to that of the confused merchant, who had lost a good customer and gained a large lawsuit by his hasty guessing. This illustration shows how strong ORDER IN OFFICE. 25 and brave one always is with right on his side. There is no better witness, no better counsel, than a just cause, and the right side to contend for before a court and jury. OEDER IX OFFICE. Law practice begins in the office, matures in the courts, and ends in disappointment — to one side or the other. The most expensive offices are rented by New York lawyers, but by far the best libraries and best pre- served tiles are in western cities and large country towns. The recent improvement in office furniture, together with fine ceilings and rich carpets — an inno- vation of the past twenty years — is a move in the right direction for those who can afford it. They be- get a just pride of business surroundings, and a love for the profession. Order in offices denotes care and attention to details, and neglect is a mark of indifference that leads to forgetf ulness. It takes no more time to keep things in light places at all times, than risk the anxiety of hunting them up in seasons of use, when their loss may be most keenly humiliating, if not a positive injury to business. The best merchants keep all goods in order. Trade is increased even by the appearances of a proper location and tasty arrangement. Doubt- less, men of slovenly habits may draw around them a certain class of clients, but order and system are never likely to discourage custom. Good practice demands fair surroundings. As men are less embarrassed in clean boots and dressed to suit their calling, so the 26 TRIAL PRACTICE. office of a lawyer need not seem like that of a coal yard. Nothing need be used for appearance, and yet something will be gained by having a pleasant home to work in. Many hours are spent in an office that few could afford to lose out of their lives any portion that could be enjoyed in pleasant quarters. To live up to one's highest privileges is not only a pleasure, but a duty. To respect and honor one's business, is to dignify and brighten its surroundings. What if it requires a care each year to be neat, orderly, and have pleasant quarters, with some out- ward signs of prosperity? It was an extreme view, yet half full of truth, that a real estate owner men- tioned in connection with his personal experience : " It is not half so much what we have, as what men think we have," was his reason for building a fine brick, and driving to his office in a neat carriage. " If I consulted my income," he said, "I would drive a plainer turnout, and live in a cottage ; but, I find it pays better to live in a good house, in order to set other people to buying better homes, and increase the profits of real estate business." A similar statement was made by a leading physician, who struggled for years in semi-poverty, until, by a visit to Chicago, a friend advised him to spruce up, get a first class loca- tion on a rich street, and charge accordingly. He tried it, and says, "I can't afford to rent or keep a poor office. It pays twice as well to be located and ready for rich customers." There is no disguising the fact that no one will place a higher estimate on one's services and ability than he is willing to de- mand. It is better at all times, purely as an invest- lawyer's advice. 27 ment, to keep an office up to the highest average standard that is known to be in use by the prosperous portion of the profession. LAWYER'S ADVICE. To become a rich and influential lawyer, one must £:uard well his counsel and avoid bad suits. It was an easy matter to nickname Seward "Small pota- toes," but Seward had too much sense to be bowed down in practice by such little slanders on his char- acter, and showed clear courage in outgrowing the malice and becoming a master advocate and consci- entious counsel. He had the courage to do his duty to all clients, and not risk a wrong verdict even to gratify temporary feelings of triumph. He made it a rule of his practice to win just and lasting victories for his cli- ent by honest means. His great forte was candor and sincere attachment to his client's interest. His defense of Freemen against public opinion, and his fidelity to the alleged railroad conspirators, whom he defended during an entire summer, is but a chapter of his history, and displays his ability and determination. Many a man would have wavered and halted in a course so unpopular. The struggles of Seward in early life were the real foundation of his progress in the profes- sion. Similar crosses in life came to Shaffer, to Por- ter, and Beach, and many more who have served cli- ents through a long life of candor and usefulness, and earned a lasting name in legal history. It may not bring so large fees for the first few years, but, in the end, honest work, well done, is amply re- 28 TRIAL PRACTICE. warded. The hardships of early life are remembered by thousands as training schools, in the life of many a lawyer. Many a young man now starting in practice, may point to the long list of illustrious advocates who began poor, and grew to eminence on the fair merits of good counsel, accepting small fees up to an age when a demand for their talents and services commanded large salaries in trusted positions. The care of estates, the loaning of money, and counsel of corporations, with much of the business- man's legal work, falls to conscientious counsel; and when such a reward comes, the fees are larger and labors less irksome, while the employment is constant and highly respected. When such lawyers reach the end of life and stand as leaders in their States, they may well be envied by the rich, and mere money makers, of any station. In every community there arc business men who have longed to be lawyers — longed for the luxury that an advocate enjoys, as he speaks for his neighbors at public gatherings, or settles their disputes with wisdom and honor. Many a man's liberty is secure by the work of his counsel ; many a business enterprise stands on the caution of its confidential adviser ; many a farm title or costly contract is planned and executed by the silent brain-work of an unknown partner — for the counsel is the partner, in a large sense, of every client whoso confidence he possesses. The business of a lawyer, more than that of any person but a doctor, depends on the candor of his dealings, and the sound- ness of his advice TEN TRIAL RULES. 29 TEN TRIAL RULES. 1. Select young jurymen, with warm, intelligent faces ; exclude ex-officers of every kind. Become early familiar with the winning facts on both sides. Conceal them, and instruct parties and witnesses to keep silence, and let counsel do the planning of theories. 2. Find what opponents are likely to prove, and how probable will be the showing, and, if false, how it can be denied or met by fair explanation. 3. Nothing takes so well as common sense. Be reasonable. Never weary a court with technicalities, nor a jury with quibbles, nor offend a witness by brow- beating, but know what you need to make a case and stop when it is established, so that the jury may see the sharp end of your evidence. 4. Cross-examine only with an object — bring out the point and don't cover it ; avoid all abuse of coun- sel or parties ; such quarrels draw attention from the issue, and cause disagreements, while kindness and fair play win a lasting victory. 5. Explain the reason of the law to the jury, or in their hearing. The average mind is wiser than many suppose. But be sure the jury know the consequences of the verdict. 6. Counsel, and not clients, should control cases and trials. 7. In opening an argument, select first the points on which there is least dispute, and, if possible, those nearest with your position. Pass to the others with confidence, and carry the jury with you by reason, not by threats, not by bombast. Leave appeals until after 30 TRIAL PRACTICE. the convincing is accomplished. But feel what you say, and believe what you say, always. 8. Treat a jury with unbounded confidence. Like begets like, under all circumstances. Men are not driven by threats, but pursuaded and convinced by reason and common sense when it is clearly illustrated. Jurymen prefer to do right. Show them the right road in a plain, clear manner. 9. The strongest of reason is : What would you have done under like circumstances? Human nature finds excuses for wrongs that lead to good results and are justifiable. Men generally do on a jury what seems most reasonable, if it is shown to them in a sensible and convincing manner. 10. There is no opportunity better than the earliest. Let the jury know from the beginning that you believe in your rights and will fairly enforce them, while their minds are clear as white paper. "Write it on their hearts and engrave it on their bones," that your client has the rights you contend for, and will ask for none other. But insist upon justice. On this, be so full, so determined, so fortified with law and reasonable •evidence that it will stand like a mountain, unshaken •either by quibbles or appeals. HUMAN NATURE. 31 CHAPTER IV HUMAN NATURE. Human nature is the instinct of reason. It tells what is right, what is wrong, what is probable and what is unreasonable. It is something like intuition and yet separate from all other faculties. Each nature being, in one sense, the likeness of other natures, feels, sees and understands best the parts of life in which it has had experience. The lady that looked angered at Napoleon, in his attempt to fondle her child, was pleased and quieted by his remark, " I am a father. " Instantly she felt the touch of nature responsive to her own. The advocate who speaks of parting lines, or reefing sails, or knots an hour, port side and fathoms deep, attracts the sailor juryman's notice as readily as the one who speaks of braces, beams, base or moulding to a joiner juryman, while to another, some keen reply in the language of cards, would touch his fancy sooner than either. Human nature, then, is understood by the reference to the condition of hearers. Men listen to, read about, and seek after thing's that fill their ideals. The Mexi 32 TRIAL PRACTICE. can is as well pleased with a bull fight, as a New Yorker would be by a change of stock, a Chicagoan at a rise in grain, or a Bostonian with a lecture. The pleasure of a theatre-goer may be distasteful to the deacons on a jury and even a reference to church or religion will often lead to a disagreement. In select- inff a jury some heed must always be paid to these sympathies, including nationality, for, trifling as it may seem, five Englishmen in America, matched with four Germans and three Irishmen, would hardly be harmo- nious in a land case. The men to be avoided on juries, are leaders, ex-officials, and unyielding deba- ters, unless they are debaters for your side. One such is equal to five ordinary men. Take a political gathering, and how many will govern and control its action? Less than a dozen to a thou- sand will rule a convention, and, in many cases, one man can manage a multitude. So with juries ; they are actuated by motives and go so much by instinct or prejudice and leadership, that it is well to avoid danger in advance by a wise selection of even-tem- pered gentlemen. How will you know their prejudices? By compari- son. Having excluded enemies and officers (not officers, if for the plaintiff) survey the balance ; turn off the hard men, men who have frozen into ruts of reason ; exclude low-headed men, they generally get stubborn. Look for the Burnside heads, with venera- tion, intelligence, and capacity to comprehend matters. Remember men of 30, 40 and up to 50 believe in life, in enjoyment, in fair play, and have a hatred of mean- ness and mean acts. If your case is desperate, lean HUMAN NATURE. 33 on discordant elements to secure a division of opinion. The defense should like a disagreement. Fair men have warm blood. The milk of human kindness is not crushed out. They can be reasoned with. Old men may be deaf; many are fixed and rigid in their notions, and take prejudices that reason can not conquer. The very best means of selection is a measurement by the eye. I never knew dishonest eyes in an honest head. Honest eyes are wonder- fully telling. They are the windows of the features, that light and stamp them indelibly. Often during a trial some tender touch will bring silent tears to the good men, and aid in a verdict when a stubborn one, in his stead, would have been stolid as iron and unmoved by any touch of nature. Sympathy is to be neither courted nor despised. It is a two- edged sword, and should remain in sheath till drawn by actual use, or in self-defense. To excite sympathy, do it but once. Strike when the iron is hot. Seize some point that has been hinted at from the other side. This is a case : A sister sued for breach of promise. Her main stay through the trial was her brother, who was berated by counsel for " neglecting business and ad- vising his kindred into a muddy law suit." " Counsel has seen tit," said the other in reply, " to murmur at the attentions of this kind and tender- hearted brother, who neglects business to attend a sis- ter's lawsuit. Muddy law-suit! Muddy, how? By the slimy touch of a coward's perfidy ! One who has not stolen in at nightfall, and carried away her jewels and her wardrobe, and her years of loving industry ; but one who stole into her affections, and taught her to (3) 34 TRIAL PRACTICE. regard him as her destiny. Then, while in possession of her character, and the jewel of her existence — a heart's first love and confidence — he has thrown in the dust to make her life dismal, and soil the current of her life blood forever. And of whom could the poor girl hope for comfort? To whom could she turn in trouble ? To one who had grown with her growth in this big, friendless city? And to him I say, and you say, God bless the young man for his confidence in his sister ! God bless them both for their mutual confi- dence ! God bless any young man for such nobility > loho sees the sister's wrong, and yet has the steady courage to stay his hand from jiersonal assault, and help her to seek redress in a lawful manner! Where should she turn but to him, her only living relative? Could she speak and tell her confidence to her faithful father? No answer could be heard in that far-away home above the stars, and so with mother gone, and father gone, and an only brother as her refuge, counsel must throw that poisoned arrow through the heart of this unfortunate orphan creature, and open anew the wound his client had left unhealed.. O, gentlemen, am I misjudging human nature when I say you will resent that insult with your verdict? " I could see the jury moulded and united by that sentiment which, more than any one thing, turned the verdict to heavy damages. STATING CASES. I have never heard a better statement of a claim than in the form of a story. To say at the beginning of your statement, "The story of this case, gentle- STATING CASES. 35 men, is romantic," at once fixes attention. Then, without any circumlocution, go forward, keeping dates and events in logical order. " It will appear by the evidence that the plaintiff was formerly an actress of New Orleans, noted for her charms of manner, as well as personal beauty ; that she attracted the atten- tion of a wealthy young gentleman, now the defend- ant. That a day was appointed for their marriage ; that a sham form was used by a pretended minister, and she surrendered herself and her life to the hus- band of her choice, and ever afterwards remained true to her marriage relations. It will appear the priest was only a pretended clergyman, probably an hireling for that purpose ; that after the birth of two beautiful children, and the death of defendant's father, and he had become a millionaire, and after this, his young wife turned to a silver-grey-haired mother, and head of his household, he suddenly decided to seek another and a younger love, and actually brought to his home such a creature, whose presence was mildew and poi- son to their home and happiness : and, when she could endure it no longer, defendant seeks to cast her off, and treat the marriage as spurious from the fact of his own perfidy. Believing in the validity of such marriages under our statute, and believing that the wife and mother is entitled, at /east, to the poor pit- tance of her share in the husband's property, and to a declaration that shall vindicate the character of her children, we have brought her action in this manner for damages. The case needs no comment. It ap- peals to the sense and reason of mankind to grant the wife and mother her demand in the declaration, which 36 TRIAL PRACTICE. we believe you will do on a full hearing of the circum- stances. If it shall be attempted, as letters threaten- ing as much would indicate, to malign the character of plaintiff, to further add infamy to injury, then we shall be ready to set up the real facts in that matter, and show how the husband, by connivance, sought to get room for a divorce by acts of collusion with designing men, versed in the handicraft of flattery and soft promises, but this will, we think, but intensify the wickedness of the defendant, if attempted. We are here on the merits, and ready for a hearing of the whole matter." Follow such a statement at once by one of the truest and best-tempered witnesses, and show, by clear cour- age, step by step, in the order of the evidence, how all matters happened, in the clearest possible form, clear- ness being itself eloquent in such matters. If the statement is attractive, you rivet the attention of the jury. If borne out by the evidence, you weld it, step by step, and, after a few hours' work, you have converted the minds of the jury to your theory, for they had rather believe that such a person had such a reward in law, than dream of a theory of a wrong side triumphant. The evidence being in, rest promptly, and guard your client's rights from the other side. Should a half-dozen villains dare to swear to mean and unrea- sonable stories about the plaintiff, pass them with just enough cross-examination for impeachment — they gen- erally impeach themselves by bad characters and evil faces — and do not depend too much on destroying such testimony. It is worthless, generally. ARGUMENT TO JURY MANAGING CASES. 37 ARGUMENT TO THE JURY. The argument should begin by treating of the points least disputed. Brush away a few unreason- able things ; correct a few mistakes ; pass a few bad witnesses, and say : This, then, is the real con- troversy, whether such a marriage is a marriage, and whether such a wife is a legal one, and, if de- ceived, what she deserves in damages. Argue fully, review fully and tersely, briefly (Burr's best rule was thirty minutes), and clinch the whole with: What would you expect for a sister, or a daughter, in such cases? Then, in the intensity of personal belief, be in deep earnest, and demand a verdict, using eloquence enough to impress the importance and value on the hearts of a jury, in words that the Chinese Emperor used to Governor Seward, " Write it on their hearts and engrave it on their bones," that your client de- serves a liberal verdict. MANAGING CASES. Counsel seldom blunder on making their cases out of court. The story sounds so plausible, told by one Avithout oath that it sounds like the only theory that could be imagined or established. Soon enough he will find his mistake in the trial ; much will fall off by a timid delivery ; much will be forgotten under oath, and on hearing a few witnesses sharply questioned, others grow cautious and conceal what may possibly lead them to contradict others, and that they fear may bear on their credibility. 38 TRIAL PRACTICE. There is no need of the slightest apprehension to a truthful witness. Truth told on the hill tops of all the different countries on earth, if truth, is identical every- where. The witness should know this. It is a coun- sel's duty to tell his witnesses that truth is always alike, always safe, always powerful. But the best witness may not always be situated so as to give the right fact in the right way. A case happened in A. like this : In the absence of a gentleman at Saratoga in July, a telegram came to his secretary to pay a certain bill, not exceding a sum named. The next day a young man called and pre- sented such a bill, and received a check for it, and de- parted. Soon after the gentleman returned, and denied both bill and dispatch, and caused the arrest of one positively identified by two persons as the person who collected the money on a check to bearer. The bank 'was unable to aid in identification, which turned on the secretary and book-keeper. The latter was careless in answers, and left a decided doubt, from inattention to details. He merely remembered of a spruce young man, very polite, calling and getting a.check, after a tel- egram in their letter-box, and was not certain enough to secure conviction. The secretary began by quite a show of certainty. He had known the prisoner eight years before, and was reasonable, candid in descrip- tion, etc., seeming to make a case without ques- tion. " You were a busy man in the office?" began the cross-examiner. "Yes." "And shaded your windows at that hour of the day?" "Yes." MANAGING CASES. 39 "And often burned gas in dark days of the year?" "Yes." "And took no special notice of defendant that morning?" "No, sir." "And could not quite be certain about this particular person getting that check, as you would be if you had made it to your own employer?" "Oh, of course not." "The matter passed off and no questions were asked?" "None whatever." "No parley?" "No, sir." "Your bills are paid promptly?" "Yes, sir." "This was no exception?" "No, sir." "In your busy, methodical way, you don't stop and question people who bring receipted bills for pay ment?" "No, sir." "That is your reason for not being quite as sure about the transaction?" "Exactly." "Then you would be more certain if your father, brother or employer had called?" "Yes, sir, I think I would." "So on your oath now you state it as a belief and not so much an absolute identification, beyond all possibili- ty of a doubt?" " I think so, yes sir." "You are not willing to swear to a positive certainty that you could not be mistaken?" " No, sir; I may have been, but don't think I was." "Do you swear you might have been?" "Yes; possibly." This is the stopping-place ordinarially (but beware, he may know it and brace up), so go on. "I think you did not even stop to call the young man by name, did you?" "No." 40 TRIAL PRACTICE. "Nor notice specially more than generally a man re- sembling defendant?" " I turned half round and glanced at him and went on and wrote the check." "To bearer?" "Yes." "And he left?" " Yes sir." This dulls the edge and helps in the argument, which is, of course, that it is not who may have called with the check and perpetrated the swindle, but who did call beyond all reasonable doubt. The reasonable doubt is here made by the people's witness, who has been coaxed by a series of easily-answered questions, to answer and tell the real truth and probably no more. CHIEF JUSTICE WAITE AND HIS CLIENTS. 41 CHAPTER V CHIEF JUSTICE WAITE AND HIS CLIENTS. Chief Justice Waite was once a country lawyer, with a small practice, but a resolute will to do justice to bis clients. He lived in Maumee, Ohio, and first collected accounts and bills for New York, Boston, and Cincin- nati merchants. It was a time of long credit, and ex- changes of produce for goods was the country mer- chants' chief means of payment. They required time to turn themselves, and young Waite accepted their installments and gave them their extensions. It came to be known that if any one could collect a debt Waite could do it. This was his Eastern reputation, but his character at home was still stronger. His word was a bond of indemnity that needed no surety. His promises were rigidly kept and he firmly insisted on like treatment from others. Gradually he became active in Justice practice, then in Circuit Court cases ; then a strong counselor to firms of importance. His manner of treating clients was ad- mirable. When one called with a case, and stated the circumstances, he would urge him to repeat the points on the other side, and what they claimed to be just in the matter. Then, before advising suit or defense, he 42 TRIAL PRACTICE. insisted, as a deciding point, that he must know the case as it really was, and not as the client wanted it to be. Seeing themselves practically placed in a lawsuit be- fore Judge Waite — for he first made himself judge of office cases — they confided their facts and relied upon his judgment, which went throughout Ohio, and later, won him national fame in his excellent work in the Ge- neva award case, over the water. It was there his lucid argument was much admired for its mastery of details and the ingenious propositions sustained. He is said to have made the most eloquent address of any lawyer on that contest of two nations. His appoint- ment as Judge was a reward for that high service and his strong qualities of common sense. Such is the career of a lawyer whose conduct is a lasting law lecture on method of dealing with clients. In point of success there is but one higher rank than Chief Justice of the Supreme Court of our Union, and that rank is true manhood to fill it honorably, and the good name and loving favor of his friends and neigh- bors. His character for honesty at home and upright ness in practice gave to M. R. AVaitc the name of deserving the place lie Jilh with such honor and credit. This is more valuable than to lead the highest court in America, in which he is first in questions of trial practice. He began poor, but soon became proverbially reli- able in this way : he became, first, efficient ; second, •considerate, and always reliable. He had a fine fam- ily residence in Toledo before his appointment, and lived very nearly upon his income. Having early se- SEPARATING WITNESSES. 43 cured a paid-up insurance of $20,000, he expressed his confidence in the future of his family, and said his life should be devoted to his profession, without regard to money-making beyond his expenses. But he took great pride in all upright and successful practice. When appointed by President Grant to the Supreme Bench he had already made a bright record in jury cases. He is both a just Judge and a great advocate. The real lesson in the life of Chief Justice Waite is his rectitude in little things. He never wanted trial prac- tice on the wrong side of litigation. He was willing to begin low, by collecting commercial claims, but even in this he was just and reasonable. Many a mer- chant was tided over a dark pay-day by his kindness, and all these acts of justice will be so many marks of greatness, — for it is always true in law that the f/ood, alone, are great. SEPARATING WITNESSES. The following incident, abbreviated from the Apoc- rypha of the Bible, is of great benefit to many in prac- tice. It should be read in full, but this summary will explain the salient features with clearness and inter- est : Joachim was a rich man of Babylon; Susanna, his wife, had two children — was good and very beauti- ful. They had all that heart could wish. In their garden was a rare park, and through it ran pure water. This garden was the place of holding court in Baby- lon. The elders then were judges. There were two 44 TRIAL PRACTICE. priests — a large and small one. Both admired Su- sanna, and loved her. At noon-day she often bathed in the garden stream, and one day, after sending her maids for towels and wash-balls, she was left alone by the water, when the two priests saw her alone, they sprang from a thicket, and one seized her by the shoulder, and turning, he saw the other in con- fusion. Both remained. " Consent to us," said the larger, and she consented not! They threatened to report that they found her with a young man, and such an offense Avould mean death to her. Susanna cried out aloud, " O, what a strait am I in ! If I consent not, I die ! If I consent, I sin against God! I ivill not consent!" And she burst the fence doors and flew away, and they cried out against her. And the people called for a trial. She came to the court-yard attended by her father, mother and kindred. She was delicate, and very beau- tiful, and she was deeply veiled. The priest said, " Eemove the veil," and seeing her beauty the people wept. She looked up to heaven, and trusted the Lord. They told their story of finding her at high twelve with the young man, who embraced her; that they seized her, and he sprang away. The people believed it, for elders were judges ; and they condemned her to death. Then she cried with a loud voice: "Lord, Thou knowest it is all false ! Deliver me from mine enemies." But they proceeded to the place of execu- tion. Then Daniel, a young lawyer, said : " What fools, to condemn on such evidence ! Come back, and try the TACT AND SKILL. 45 case legally." They went back, and Daniel said, " Separate the witnesses." Then the priests testified one at a time. The big elder was sworn first, and, when leaving the stand, Daniel said : " Under which tree in the garden did it happen? " "Under the holm tree." "Stand aside," said Daniel, and called the little elder, who told the same story through, and was about leaving, when Daniel said : " Stav ! Under which tree did you see them together?" He hesitated, and said : "Under the palm tree" (in an opposite side of the garden ) . " Thou hast also lied," said Daniel. And the peo- ple arose and put both priests to death, they having convicted themselves of conspiring to kill an innocent woman. Then Daniel became a great advocate (with a splendid practice) in Babylon. Susanna was all the more respected as a virtuous and upright woman — even one who could resist temptation from her priest. This incident is doubtless Shakespeare's foundation for "A Daniel come to judgment," in the "Merchant of Venice." It forcibly illustrates the power and use of separating witnesses on a trial, better than a dozen pages could define. It applies more to criminal than civil cases, but in all assaults and general accident eases, should be used and remembered. TACT AND SKILL. All that can be read in text-books will fail to de- scribe very many little things that happen in a court 46 TRIAL PRACTICE. trial. Books never foretell of ill-temper, blunders, and halting witnesses. The best that can be learned of the ablest-tried cases will leave an unwritten history in every lawsuit, where some little thing, happily used, has, or may have, turned the verdict. Tact in management will foresee evil, and avoid it. Watch with alertness for a lucky turn, and use it to the right advantage. Most people learn soon enough af- terwards what would have benefited their case, if aptly applied in season. Skill has more to do with arrange- ment and order of happy things, and keeping them in form to use with a jury in argument, but the lack of experience and careful study will allow man}' a point in practice to slip by unnoticed that the artful would apply to advantage. This little difference in skill is what people pay for. Little dark places cleared up, little impressive acts or words of witnesses noted, lit- tle circumstances or sayings that stand out from the rest with emphasis, need grouping like a coiled cable, and italicising with force by skillful usage, that trained thinking and long practice sives to the diligent. Genius may reach all at a single bound, but most lawyer* learn, in good season, that genius at the bar is found to be like a keen razor, of excellent material and superior finish. Genius, in anything, is generally crude, and gains by experiment. The greatest genius may have poor application, and turn out badly. There are more studious plodders on the bench and in the upper story of law than men of original brilliancy. The nature of law labor is such that skill, learning, and tact are all qualities requiring study. It is not the study of books alone. How few, indeed, could be ADKOITXESS AND ACUMEN. 47 read in a life-time. It is the study of men, of things, scenes, effects, causes, and results, that grow and fol- low naturally from consequences. A lawyer, of all men, must think, and think constantly, through every stage of his case, and train his mind for adverse turns of evidence. ADROITNESS AND ACUMEN. Some time in the course of every trial will come the fine turn of the scale-balance, where a little thing said or unsaid may unite or divide a jury. I never had much confidence in tricks and arts deceptive, but there are turning points, like guide-boards, that mark the progress made, and show the true direction. A man that saves his points is like one who saves his grain for use in winter, rests his team at a hill-top, or feeds them for strength in their journey. Many lawyers explode their wit too soon, and, like hunters firing at random, scare away their game. It may be wit, it may be elo- quence, possibly, in the examination of witnesses, but it will be somewhere that the ripe fruit will show be- tween the leaves, and can be saved for a client if picked in season. Just what to do and when to do it, is something that a sixth sense must teach a counsel. It comes to the lawyer through practice, but practice must be polished to discern it. The sense of fine work in lawsuits is a cultivated trift that increases with use like the skilled surgeon, the trained musician, or the accomplished scholar. 48 TRIAL PRACTICE. URBAXE DEPORTMENT. The long-used habit of polished language and chaste expression, with grace of gesture, ease, and deference of manner to superiors, and general courtesy to all, is a branch of legal training that belongs to the law, but only a few lawyers ever attain it. Manners are not well-taught in books ; they are learned by experience and observation. It is that mysterious something which denotes gentleness combined with strength. It need not be feminine or weak, nor too soft, nor very yield- ing. This is quite the other extreme. The force of a blow is not increased by a rough-edged blade. The voice of a speaker may be penetrating and forcible without wounds or injuries. All that we admire of speaking, singing, or acting, is grace, force, tone, and naturalness. The mirror, held to nature, need not reveal a giant in muscle to show a rare musician or a Grecian athlete for an elo- quent orator. Small instruments make sweet music. Demosthenes, the father of oratory, was a striking example of one lacking in form, but equipped in style and finish. His brilliant successor, Cicero, was more graceful and accomplished, but only after years of training and the daily study of words, arts, and sub- jects beyond the rules of other orators. Cicero and his successor, Erskine, attained greatness by the polish of their genius, the subtlety of their sayings that pierced to the hearts of their greedy hearers like the words of Mark Antony over Ccasar's body ; a speech tit for a model of all times for its caustic urbanity, •cogent in reasoning, powerful in argument, eloquent STARTING IN LAW. 49 in pathos, deep in logic, powerfully convincing and couched in language even unoffensive to those it would annihilate. Urbanity rules the tongue, and tempers the hands and actions of a speaker. The man that rules his temper, and controls his manner, has a better prospect for long life and peaceful prosperity, than one whose selfishness leads to constant friction. But few lawyers ever acquire a razor blade polish in court room deportment. Sooner or later the majority of men, tried by con- tests of an exasperating nature, yield in debate to trials of sarcasm or side remarks, which are trifling in them- selves, yet telling on their constitution, and creating enemies. It was the bitterness of Blaine, that over- come him with enemies. It was the urbanity of Gar- field, that made him a leader ; the imperial bearing of Conkling, that let his enemies walk over him in vic- tory ; and this is a lesson to all advocates. To reach a happy medium that will neither excite bitterness, nor show weakness, force with gentleness, power without arrogance, intensity without irony, and finish without affectation, strength, symmetry and beauty, either of which omitted will render the other less effective. STARTING IN LAW. Training, courage, patience and aptness for the business are the essential elements of success in law practice. If one has not discernment enough to know how well he can fill these requirements it is better to wait awhile, or learn from another what is lacking. With a thorough training, courage should follow easily, for no one is strong without knowing it, and (4) 50 TRIAL PRACTICE. strength comes of confidence in ability to do what we undertake. Then with energy and work well done, new cases will follow, and business will grow like a tree, with new branches from every limb. If one is willing to wait the growth of an orchard, the develop- ment of an enterprise, or any ordinary matter that requires time, he should be willing to take law busi- ness as it comes — thankfully. Actors are all willing to play subordinate parts many years in starting till suddenly called in to replace their seniors, when they often display their earliest talents by accident. Lawyers are watched in court trials very much like actors in a play, and, indeed, many are superior to actors, and the real tragedies shown to juries are supe- rior to the imitations of the mimic stage. A few well cut knots of controversy, a few well turned periods of argument, a clear insight into the puzzling problems, will soon place a lawyer in his proper rank before any community. Learning, language, manner, familiarity with facts, and ingenuous handling of half-a-dozen witnesses will do the work. The best talent of a law- yer is common sense — a basis to which all cases finally must come before the last court leaves them. What is good sense is always good law, and counsel who act and advise on this principle must succeed in keeping their clients out of petty litigation, which is inval- uable. The next best gift is foresight — the gift of telling how reasonable men will judge of a contract or contro- versy — the ability to frame a correct theory of a de- fense or prosecution. Without this intuitive knowl- edge, few can reach the right beginning in practice. AX INSTANCE. 51 It is born with a lawyer. If not, he was born for another calling. The third gift is clearness. Things that come clearly to a teacher can be as clearly explained, but we never know well what we cannot tell to others. The very fact that it is not clear to the speaker, ren- ders the listener all the more muddled. Some are so gifted in clearness that they send, as it were, a ray of electric light through their trials, and satisfy court, jury and- client of the certainty of their positions. Memory goes to make up clearness. So many details are to be kept track of that memory is a. rich gift in trials, and one that cannot be over cultivated. It grows by use, and strengthens by practice. With all eyes on the actor, his lines are important. Neither wit, grace nor appearance can replace matter and memory of the points in contest. As the actor wins a recall, so must the lawyer by influence on all in hear- ing. His form, manner, voice, matter and ingenuity, each form a part, and aid in victory. AX INSTANCE. In a Kentucky murder case great excitement pre- vailed, and hundreds of armed men thronged around the counsel. Judge Curtis defended : he felt the sen- timent of conviction in the air. The danger of lynch- ing was not trifling. With subdued tones and careful diction, he opened in an eloquent tribute to the char- acter of women, for charity, long suffering and love ■of mercy. Tears fell freely, for on that ground no one disputed the speaker. The court was hushed and 52 TRIAL PRACTICE. silent, till snow flakes could be almost heard to fall. The crowded house grew to a house of admirers of the- modest beauty of statement, as well as of the doctrine taught. All eyes met the speaker. He stood in the crowded court room like an athlete in an amphitheater. His danger increased when the second passage was reached, where his client had been berated for acts of conduct in his early love, and a fair chance come for a strong turn on his adversary. The speaker wisely foresaw two answers, the bitter and the sweet ; he chose the latter ; he regretted that his noble brother should so far forget his high calling as to make sport of the early affections of his client. True, he stood solitary and alone, a childless man, and when he died it would be the last of his line. True, he had years be- fore met and won a fair Kentucky lady, and but for her parents' wishes, they would have been united, and great God, said the speaker, can it be that to please a miscellaneous audience, this holiest of earthly affec- tions is to be held up to scorn and ridicule. In a State of chivalry and bravery like Kentucky, can it enter into the heart of a man humane, to trifle with the most sacred affections of man or woman. The ice melted, the audience were his. The influence of courtesy and nature was sublime. The defendant's- life saved by it. This silent influence that brings out a recall, a half cheer, a sentiment of belief in the audi- ence is, after all, the art of oratory. It conciliates,, captures, convinces, wins and controls the judgment of a jury. It is superior to questioning and brow-beat- ing bad witnesses, and, coming from one of known in- tegrity and sincerity, it weighs with a court and a AN INSTANCE. ~>3 court room. For the court is one of an audience, and •wishes to do about the fairest thing after all that the case admits of. He may pound with his gavel at the crowd's applause, but his heart applauds with the rest. The responses of heart to heart are the same with judges as with auditors. Strong argument, earnest and eloquent words, are never lost in the hearing of reasonable men. It may not always secure an acquit- tal, and may lead to a disagreement or sympathy enough for a lighter sentence. A man whom the peo- ple love and respect is not likely to have a long pun- ishment inflicted as one with few friends and a weak advocate. 54 TRIAL PRACTICE. CHAPTER VI. WINNING HARD CASES. Man never met a more difficult case to contend with than the Buford-Elliott defense in Owenton, Ky. in 1879. The life of Col. Buford is strangely romantic. His family, habits and home troubles all form a back- ground of the fearful deed he accomplished, and yet he is free and clear to-day as any Kentuckian. Skill! and will of counsel cleared him. His deliverance came- from absolute determination of counsel. Other men have been saved from the gallows by fortuitous cir- cumstances, but Buford's case was marvelous. Time without limit was spent in preparing for trial and shaping public sentiment, or rather dulling the first in- tense bitterness to the accused. Knowledge was used in the smallest detail, and no stone left unturned on the insanity defense which finally resulted in Buford's release. It would be im- possible to detail each step, but think of ninety days in preparation? Underwood, in Michigan, actually killed Charlotte Pridgeon, and within a year crossed to England, hav- ing first been acquitted of murder by reason of insan- ity, and later released as not liable to be so held in WINNING HARD CA6ES. 55 bondage when no jury had been sworn to convict on such a charge. Underwood was English, and had an English jury. T'remain cleared Stokes by an over-mastering speech and a determined effort to bias the jury, which worked on the theory that the slain was a dangerous man to inhabit the earth. In fact, the victim was on trial more than the accused. The amount of work in trial after trial is wonderful to display on a single charge. Ingenuity of counsel cleared Gov. Scott, and appeals to what the jury would have done placed where Sickles and McFarland were, cleared both prisoners. The single period of James T. Brady in defense of Sickles was enough to melt the hearts of a dozen juries. The masterly appeal and able argument of Graham in McFarland case, is admitted to have saved his client. In it are four great speeches, condensed in a single effort, which clearly shows the value of accu- mulated arguments. In the Sullivan-Hanniford case, at Chicago, defense relied upon an attempt to strike Mrs. Sullivan by deceased, and so skillfully was it placed before the jury, that not guilty was the ver- dict. In the trial of Garfield's assassin, excellent ability was displayed for the people. When Judge Porter, in an ingenious cross-fire with the prisoner, belit- tied himself that he might show off the sagacity of the accused, who thought more of his passages at arms with counsel, than saving his life by a little more foolishness and less ability. A rare point, too, was turned by Judge Porter in overcoming the inborn prejudices of several jurors who cared very little more 56 TRIAL PRACTICE. for Garfield than other citizens, and objected to capi- tal punishment. To this, counsel closely addressed the argument that while chivalrous men like Booth, might in a moment of some curious freak, kill a human being, still, Booth was not like the creature before them, who was held up in all his littleness, meanness, wickedness and utter lack of manhood ; all the names and things that could cover a creature with infamy were used with wisdom, and when finally every juryman had learned to hate the crime and criminal, Porter rested and won. These are large cases, took high priced talent, and resulted generally as they should. The defense of Beecher was about as ably made as that of either instance mentioned. The cool and con- siderate effort and excellent temper of Mr. Evarts, the artful array of circumstances, were often conclusive with the jury, while the great heart of Mr. Beecher made him too noble in the eyes of the jury to brand with crime, and he was practically acquitted. FORCE AND MODULATION. A low tone in statement, a low tone in asking a ver- dict, a medium tone in explaining away objections to your theory, brings a strong and forcible vindication of your side. Reserve force is best shown by cool de- termination. Men of iron never need to bluster ; they assert their views and execute them . Grant, Napoleon, and AVellington, were of this class. It is evidence of weakness to express all of one's feelings at once in an argument. It is often said of a great speaker : He FORCE AND MODULATION'. 01 begins very low. This shows his desire to gain close attention. Again, he talked like a whirlwind at such a point, and when he closed you could hear a feather fall, he was so intensely interesting. I have even known of speakers that seemed to chain the audience to their seats for several seconds after they were at liberty to separate. The spell-bound speeches are always best in law suits. When one can reason in whispers and be heard, he and his hearers are not far apart. It is a magnetic method, and raises no resent- ment. It is the height of eloquence so to use it in moderation and reserve. At a murder trial, in southern Indiana, an eloquent eounsel had left a jury ill tears — in fact, all in the court room were moved by his touching appeal, and when his opponent arose and began a reply, his emo- tion was shown so distinctly in tone and manner, that every one seemed to believe in the prisoner's acquittal. But the sublime moment had not come, and counsel was only building a bridge on which he could carry over the jury to the other side. He knew, as salesmen know, that it is unwise to be too hasty in persuading customers to take their wares. He knew that he must first show his opinions were not so far from theirs. He knew that human nature was aroused, and he must go with it to a reasonable turniug point. From low tones of kindness and sympathy, he gradually turned to questions of duty, and the reason of trials like the one they were engaged in hearing, and about to deter- mine. Of its effect upon the community, and upon their own rights as citizens. In a few moments he had taken them home, and showed them the value of per- 58 TRIAL PRACTICE. sonal security — of the necessity for the law's protec- tion. Then he suddenly drew a picture of the danger if laws were violated, and tears should be allowed to screen the guilt of the offenders. Then with touching words, he regretted his duty and theirs to lead one pos- sibly, who himself had in moments of anger brought sorrow and disgrace upon those who must now bear the natural consequences ; and in such a strain ended his excellent argument, winning a case for the people by force and moderation, that he could easily have lost by over zeal in his closing address to a jury already predisposed to acquit the defendant. RESERVE FORCE. In a discussion before a court of judges it is a good plan to start with a striking and important case, one on which there can be no question or dispute, and as the argument advances other less positive cases may be examined for and against your position. This brings attention to a merit on your side, and compels atten- tion, while a few weak cases may prejudice the court, and lead to a bias too early in the discussion. In the end and beginning of every law argument, one or more good cases should be cited. Trifles turn a case in such matters, and the last words said may be impres- sive. There need be no fawning or cringing, and yet great respect to court's discussions. Let it be known and follow the rule, that one evil ruling will reach the court of last resort before you surrender. Right here, let me say, that every lawyer is in duty bound to follow the side he honestly believes to be RESERVE FORCE. 59" right through the highest court for settlement, not for spite, but for victory, and respect of courts them- selves. Counsel who insist on their rights generally secur e them. It need not be done in the spirit of vengeance or malice, but should be a rule of practice to win every case that has a winning side to it. To do this, the first step is, caution in taking cases; the next thing is to see that the witnesses are such as you believe and can depend upon, and men or women who will tell the whole truth, and having told it, stick to it. Then, in the very best of temper, with a handy brief, in which not only cases are cited, but the nature of the case and the principle decided. Attend to each point as it goes in evidence, for the impression made as witnesses testify is even more lasting than argument. It is a first impression, and one that juries are inclined to remember. Think of a half-dozen supervisors, read and intelligent at the age of sixty, all having an abid- ing belief, and asked to change it ! This is a great ex- pectation. Men of fixed opinions change them reluct- antly. It is very much better if they have not said "no" mentally to your position before they listen to an argument. If you have been keen enough to hide your best points and reserve them for argument, so much the better for your success. There is a kind of fascination in a well planned trial that leads to constant discovery of new truth, as if it came out unawares. An art that conceals the art of trying to, and yet reveals the plainest truth. Take a bad witness half way to his seat ; recall this way: "One moment; what was the condition of the <60 TRIAL PRACTICE. four when you first went in? or, what was the condi- tion of the room as to being shaded with blinds ? ' ' " Shady." "That darkened it a little?" "Yes." *' Not so light as the court room now? " "No, sir." *' You could not tell quite as certainly who called, as if one had called whom you had long known? " "No, sir." " That leaves it just a little uncertain, that is, you are now not swearing to a positive certainty?" "No, sir." " Then you admit candidly that there may jwssiblybe a mistake about this being the real per- son whom you believed to have called with the check?" *' I think he was the one." " Yes, I know, still you swear that you may have been mistaken?" "Yes, sir." This is the finest of work. The reserve force, the unconscious work, the foundation for an argument that if a witness may have been mistaken, then the jury can't take the risk of mistakes. LAWYERS NOT ON TRIAL. It is a mistake to abuse a brother lawyer in trials. He may have his client's story, and, believes it. He may have the close of the case, and turn a bad point on you when you are powerless to answer. He may represent the people and have great discretion in right to nolle pros. He may have personal friends on the jury who but for the attack, would be with your side, and now will stand out and disagree, causing great ex- pense and annoyance, and, in any event, he is not on trial, and abuse will not win your victory. You be- lieve in your theory ; he, in his, and each has a right to his own opinion. In fact, he is hired to enforce it LAWYERS NOT OX TRIAL. 61 by all laudable means at command, therefore it is more pleasing to a jury to do as Judge Perrin always ad- vised : treat opposing statements as possible mistakes, and seek to show which side is mistaken. Juries had much rather hear this argument than a personal wran- gle and a bitter controversy. and how well he can maintain his position, that tells in practice. The genius that counts his fingers till he learns the rules more clearly, is none the less a genius. The boy lawyer with brains and grit who struggles with his superiors and succeeds, is more deserving than the senior of name, character and standing. Time evens such things nicely in the long run, and rich, gray haired men need never be envied by the young and ambitious, for few lawyers are wealthy under fifty who .make their money in practice. BELIEF IN YOUR CASE. 95 CHAPTER XL BELIEF IN YOUR CASE. The jury will soon know if you have a doubtful case. To be sure about it, let them know early that you, at least, are confident in your positions. This may be expressed in calmness, in not growing petulant over little defects, in kind and courteous behavior, in a manner of reserve force that denotes courage, and an unshaken belief in evidence as it passes in the hear- ing of the jury. Any nervous or petulant anxiety will leak out in the sight of the jury, who watch counsel as they would a couple of athletes in an arena — especially if the case has any interest in it, which all good cases are sure to excite, more or less, during the early stages of the trial. The true course is to assume and maintain serene confidence throughout, by an impressive statement of facts and law, if need be, and a strict adherence to your positions. Should the court disagree with you, insist upon an exception. Keep up the exceptions on all important rulings to the latest moment. The best judges may err, and a large number of exceptions can be sifted down for the purpose of review. Five will 96 TRIAL PRACTICE. be ample for a higher court, but twenty may be good to fall back upon in selecting. A friend was badly ruled out of court recently, and quietly said : " It's a short road, and beaten track to Lansing; I shall be able to get there in term time." And he did, and returned with a complete victory. The coolness reassured his client, who instantly de- cided to aid in a final review and hearing, where mis- takes, if made, are legalized. Belief in a case should extend through the trial and court of last resort. There is no reason why counsel who once look up the law, and determine that they are well grounded in their belief, should surrender on a single defeat in any case. The clear grit plan will lead to a firm, silent, but persistent contest to the bit- ter end. Belief in victory, helps to win it. " Thrice is he armed, who hath his quarrel just." There is no evidence like a good case. ONE OPINION. The world has but one opinion of a man at a time. With the very wide influence of the press, every bad thing is sure to be noted and extended If a lawyer loses too many cases, or runs too much in a single rut > adopts a special line of practice, gives too much time to politics, charges too high fees, is inclined to sporting or fastness, public opinion will soon take his measure, and for years after will hold it in memory. In a very busy world, where every man is full of his own affairs, there is too little time to weigh character. A single reporter of a single paper may set on foot a ONE OPINION. 97 story of a great man's victory that makes his reputa- tion for a quarter of a century, simply for the reason that no other reporter for another paper is likely to contradict the statement, it being printed — and one man's opinion only — it weighs against a score of years in character building. Some men will outlive injury to character. Theo- dore Tilton is an example. Some will struggle, but remain scarred by it, like Conkling, who rallies like a true Roman ; others will surmount it, like Arthur. The force of circumstances aided each in the ending of his trouble. The American people love idols. They have some pet in every community, city and State. They succeed for a season, go out like a candle burned down and discarded. This is peculiarly American. The higher a man goes, the more liberally they reward him ; the lower he sinks, the harder they hate him. When Grant took the sword of Lee, and received the surrender of an army, he was applauded and treated as a conqueror and king. His trip around the world was a continued ovation ; his meeting with the Queen, who walked down twenty-eight steps, and held out both hands to show him welcome ; his arm-in-arm walk with Prince Bismarck; his passing under the Giant Arch at Jerusalem, and return by the Golden Gate, and later through Old Mexico,— would seem to be honor enough for a monarch to enjoy. But how soon were the scenes shifted at the Chicago Conven- tion ! The world had but one place for Grant. They had made him a military hero, and were determined that was enough for one man, and it was the highest (7) 98 TRIAL PRACTICE. honor he can achieve while living — once removed be- yond the possibility of rivalry, and he will be praised with great freedom. Lawyers have this to remember : If they seek Con- gress they are looked upon as Congressmen, and their legal reputation changes. If they seek criminal prac- tice (next thing to Congress), they will be known as criminal lawyers. If they are fair, open, generous, that reputation will cling to them. There is no class so much the architects of their own fortunes as law- yers. INTEREST IN SPEAKING. Every advocate has his means of enforcing attention. Some are intense, some graphic, others ironical, and many attractive aside from the general argument. Few men ever sustain at any length, a long line of eloquent periods. In a speech of many hours, but a few moments in all will approach true eloquence. But with a subject of public interest, much of the speeches made to an audience is the story of the matter in ques- tion. So the story of a case is always its chief inter- est. If a eubject is dry and void of sentiment, deep earnestness in attending to its details is all that counsel can add to his ordinary duty. No matter how dry it is, there is one party (your client) deeply interested in the issue, and you are bound to share his intensity. Stories, illustrations, examples and good humored treatment of others will awaken an interest, and hold attention when you most need listeners. The heart of an advocate must be warm, and beat responsive to the music of good jokes and apt answers of witnesses, for BUIEFS. 09 of all things pleasing in a courtroom, none is more rel- ished than a joke from a witness on his examiner. BRIEFS. From the moment a case comes to the office, to the collection of a judgment, interest, and constant interest, must be paid to its details ; make it your own, is an excellent way to manage anothers dispute. Cut it as short as possible without sacrifice, but keep it in mind, and tile away with every case a clear statement of par- ties, their address, and the residence of witnesses, as well as reference to their part of the testimony, and the leading cases relied upon for trial day. This will prevent confusion, and enable another to be called in and try it in your absence intelligently. To this end a brief, is of all things, essential at the earliest stage of all retainers. Make at once a clear brief, and file it away for immediate reference. Cases come on oftener at random than by any note of warning. See to it that you are ready and waiting for trial, and lack- ing in nothing on your part to make it a victory. Many a lawyer has lost his suit, that by a little care could have been gained easily. The best tried cases are those handled by young enthusiastic lawyers, full of their facts, and deeply read up on the law of the subject. It is not safe even to rely upon memory, a clearly written brief of points in a good bold hand, is the surest way to success on trial days. This preparation leaves you room for other think- ing. It paves the road that leads to the jury. How can counsel hope to explain matters all muddled in his 100 TRIAL PRACTICE. own brain, to a dozen men with minds untrained on such subjects? It is one of the chief things of all to remember in practice, that clearness is itself full of interest. Be lucid, graphic, intense, attentive and alive to the interest of clients, and you must succeed. GREELEY'S " BIG TREE. - ' Horace Greeley, while on a trip to California in 1857,. visited the Mariposa Valley and the Big Tree region to describe the mammoth cedars through the Tribune. He had measured one about a hundred feet around when the guide begged him to wait, and said he had found a larger one. " Never mind, never mind," said the ready witted Horace, " they wont believe this win it they see it in the Tribune. Where they are all unrea- sonable, I'd rather mention a medium tree." Horace would have made a good lawyer. There is more than one story told in court by witnesses not be- lieved, simply because they measure too big a tree. The mind will carry about so much and no more. The average advocate proves too much in many cases ; and witnesses tell unreasonable stories. To believe that one man in an assault case would injure another without cause, is not in accord with human reason. To claim that one is wholly right, and the other is all wrong in a .quarrel, is not the right sized tree for an average jury. Men are, in many respects, like Charles Keade's hero. They put them- selves in the place of another quite often. The best reasoners are mindful of human weakness. and reach conclusions only after a fair investigation. greeley's big tkee. I'll So that the sage saying of the wise journalist is apt in trials. Don't measure too big a tree. They won't believe it if you get it in evidence. Trained judgment alone would dictate this caution. Mr. Greeley was a master of human reason. He took in the future at the same glance that others looked at the present. It was to him not to-day only, but the great second thought of to-morrow that governed. Accuracy in judgment, to be able to read the will and average opinion of men, is a rare gift in advocacy. Juries in the box are only men, neither greater nor brighter nor truer than an equal number selected and spoken to outside of a court trial. The common sense of twelve men is about the average sense of the com- munity. The chief difference being that they hear the evidence. But take the story of a mean witness that no one would credit if read in the papers, and a jury will apply nearly the same rule to his evidence. Witnesses are never wholly believed on both sides, for in most cases there are Hat contradictions. The most reasonable and likely statements are most readily credited as truthful. 102 TRIAL PRACTICE. CHAPTER XII. CANDOR AND DIGNITY. Parlor talk is more taking than loud tones and vehe- ment manner. Not that earnestness can be replaced by soft tones altogether, but modulation being the music of all oratory, it requires low tones to reason, strong ones to denounce, and words full of feeling to move the sympathies. The tones that capture the judgment and overcome prejudice are full of kindness and music. Human nature is more easily coaxed than driven to act against the will, and politeness opens many a door that scurrility would have locked and bolted. I remember an occasion of a man calling at an office where there was a director's meeting, with closed doors, and, after rapping, he said gently through the letter-box opening: " Bitte, Ilerr French/ may I speak just a moment Avith you? It's very important." The two words, "Please, .Mr.," before French brought the door open instantly, while he might have pounded an hour, and no one noticed him. Kindness is a Yale key that unlocks the strong com- bination of many a heart-door closed to harshness. If one would influence another with reason, he should ("AXDOR AND DIGNITY. 103 couch his part in modest words that reach the finest impulses. I remember a salesman of cheese-safes who was very successful. He would point to a few good things, and rest patiently for the offer to take effect, and never attempt to argue the objections raised by an- swers other than simply pointing to the good things of his article for sale, and finding their position not so serious as to need combatting with argument, he sue- ceeded in his sales admirably. Lessons of this kind are found apt and suggestive to a lawyer, who meets opposition at every step of a court contest or settlement. Better by far to listen patiently, and even take a little abuse, if you have the closing, than enter into a wrangle and quarrel all through on little things that never reach the core of the controversy. In a famous case in New York, where Judge Beach prosecuted, a lawyer from the interior objected so much to evidence for incompetency, that all were be- coming tired of his intolerable bother and delay. Finally, the court reprimanded his captious style of practice, and Judge Beach raised in his chair, and with a tone I shall never forget, said : " I thank your Honor!" The effect was more than a dozen -harp answer-. He had borne it long enough for the enemy to come in reach of his gun, and killed the whole wrangle with a single shot. There is no more stinging reply than a look of con- tempt, and an action to match, especially if the saying or interruption is contemptible. So much of outside feeling enters into a jury's muling, and so much of 104 TRIAL PRACTICE. reading between the lines goes on during trials, that the Guitcau style of firing off a stale reply, or impertinent (and attempted) witty remark, is fast losing caste in good practice. Good trial lawyers start without jockeying, and win without breaking. The keenest observers of a race soon sympathize with the honest, even trotters, and dislike one that breaks up and gets unsteady ; and so in trials, the man selected in important cases is not chosen for sharpness or petty wit, or a trick to play with a jury, but for some sterling quality of skill and adroitness or eloquence that is likely to reach the real merits of the contest, and, if possible, cut the knot for the court or jury. It is bad enough that people must go to law to ob- tain their rights of dispute. But counsel who will badger them with vile names, and their lawyers with meaningless nonsense, deserve to be beaten as an ex- ample. Candor, absolute honor and fair dealing, are not only essential to success in practice, but they carry with them character and clientage, and unite the disputants, while they elevate the standard and dignity of the pro- fession. We can all remember the bo}'S who de- claimed " funny pieces " at school, but the most im- pressive speeches were of words fitly spoken, and full of sense and wisdom, delivered with dignity and can- dor. FKEQUENT OBJECTIONS er and more direct way o idence, the better for court, counsel and jury. One The smoother and more direct way of admitting ev- FREQUENT OBJECTIONS. l'»."> who raises captious questions, and worries the patience of all by a running line of "We object," "We ob- ject," without good solid grounds for the objection, is losing his case as fast as possible. The course of a court trial is more or less tedious as counsel see fit to make it. No wonder that juries are sickened by unprofitable quibbles. Objecting calls off the mind from vital issues, confuses witnesses and prolongs testimony. All this is noted. Opposite counsel are irritated, and take advantage of the time iu naively hinting to the jury that something they would show is headed off, least it may hurt the ob- jector. More is said in the argument, worse words are used, and a worse effect produced, than could be made if the real facts were admitted. Then we have three serious effects to overcome iu argument: A court's displeasure, a counsel's hints, and a jury's prejudice. They have heard the offer to show ; they assume it is truthful ; they know it must be bad, or it would not have been questioned. Then when we think of that love of fairness which juries must have carried all through, and that comes to re- mind them how each side has been heard and well treated, we can only wonder at the sharp practice style of attempted interruptions. There is but one opinion about lawyers, fair or unfair, in trials. They cannot retain their self-respect by unfairness, nor their clientage by tediousness. The wearing-out pro- cess is long out of date, and the sooner the issue is determined, the better for counsel and client. 106 TRIAL PRACTICE. TALKING TOO MUCH. " Pleasant words are sweet to the soul." Aaron Burr made a rule of thirty minutes speeches. That is a little too short for most men to conclude their stating portions of an argument. But Burr al- was commenced in the middle and cut both ways, with vivid intensity he reached the vital issue and held it like a quivering victim in his toils, till he mastered the issue and convinced his hearers. Most advocates start too far away, and end long after the end is out of sight and out of hearing. Once well told is told enough. One good reason need not be worn thread-bare by over-handling, and when a counsel goes off into science, metaphysics and gene- ralities over minor matters, he dulls the edge of reason and tires his jury. There is such a strong disposition to cut across lots in business, and juries are so w T ell informed, and should be so fully convinced by the testimony, that speeches are lost if made tiresome. Men have a right to look for apt words. " A word spoken in due sea- son, how good it is." "He that hath knowledge, spareth his words." One had better say too much than too little, but just the right thing will be neither extreme. Careful attention will show the stopping point, and place the closing period where the end should be, be- fore the sharp point is over-worded. Endless talkers are sure to lose their grip. It is the man who talks TALKING TOO MUCH. 107 little and in pithy sentences that wins suits and settles differences. Constantly objecting, or frequent side cuts of interruption, may require some lively sparring to get even, but the telling speeches are the short, sharp, clear cut stinging ones that pierce to the heart like a swift arrow and execute the will of the advocate. Witness the address of McReynold's in the Stevens' Insurance suit, where talent, character and eloquence were arrayed in force against a country lawyer, who, with a. period seldom equalled in an any language, told more in ten minutes, than hours of round about rea- soning could accomplish. Judge Curtis, whose opin- ion is second only to Beach's in America — and in this case shared in by the latter — says of this Reynold closing * : " It is a gem in English literature, sub- lime in sentiment, eloquent in heart thoughts, grand in its simple simplicity. Who could resist such strength of reason, combined with his power of vivid pathos." Here is part of it : "Even now, by your silence and interest in this case, 1 hear you say stop, delay not longer, let us be- gin the work of justice ! Stop till we right this wrong at once ! Stop till we restore these orphan children to their own, to that character they will love to honor — a character as pure as they believed it on that last sad night, the night before the night of death ! Stop till we give a verdict and a vindication ! " Judge Beach was more especially pleased with the passage of the accident just before the one quoted, which he pronounces rare. "I can see her now, as plain as yesterday. It is evening. It is twilight. The snow is falling fast and 108 TRIAL PRACTICE. slippery, whitening the little white walk to the cistern. She is confused ; she has company. She seizes the pail, hurries to the cistern, catches up the hook, leans over the curbing, Slips ! Falls ! the water covers her ! No one hears her! She is drowned ! It is an accident." (See Modern Jury Trials.) ON HIS MERITS. 10'.f CHAPTER Xlir. OX HIS MERITS. The success of a doctor may be aided by good nurs- ing, and nature's efforts to revive the patient. In eight cases out of ten, except in seasons of epidemic, rest and a natural vitality will withstand ordinary dis- eases. This fact gives doctors a great reputation, but such is not true of lawyers, whose clients once in trouble, generally stay in for a good season, and no reputation can be made in law, save on the merits of the lawyers. Some may dream that wealthy relatives will do it ; some that influential friends can elevate one to power and position — and they may for a brief season — but the lawyer has one road, and one only : he must win for himself, and be as much independent of relatives, friends and riches, as if rowing a boat race ; mettle, and mettle alone, must count in him if he conquers. Cheers help a speaker, but no amount of cheers win a law suit. Wealth helps one socially, but not in a law suit, before a jury, to any great extent. There may be instances of purchased positions, but they are clerical or secondary places; there maybe 110 TRIAL PRACTICE. corporation counsel appointments, where wealth turns the scale, and secures the place for a favorite ; but corporations are none to ready to rely on other than actual merit in legal matters. So that at the outset a strange feeling must come over a young student in his early practice ; that he must make his own way in practice, and to preferment, unaided by anybody. There is one source of encouragement in this thought to the worthy, and that is the fact that he will own his honor when he earns it. It may stimulate his energy in character building, which of all things is the best capital in practice. It may urge him to braver work, and nerve him to endurance, to reflect that in the legal arena he is struggling alone, for a name of winning cases, and earning fame, that with the lookers on, are the friends and relatives who will cheer his first victory, but he is the racer, who must out run others to secure it, and probably it does cheer him, for few are so careless of a good name as not to desire, and wish to deserve one, for this reason, if for no other, the legal profession opens a broad arena of competition. There is no storekeeper, dealer or merchant who meets an equal competition with the lawyer. His way is beset with tricks and accidents. His client may be honest, and may be knavish. He may be wise, and is more likely to be foolish. He may be discreet, but has more likely given away his case in some left handed letter, or admission where opposite counsel will say " we have the best of witnesses — a confessing defendant," and mean it. But while the law never requires of one to do impossible things, it has said in a wise maxim that " reason is the soul of OX HIS MERITS. Ill law," and all one really needs is earnest endeavor and common sense to reach the true basis of practice. The rare chance may not come in the beginning. It may come later. Most good lawyers mature well along in life, with gray hairs and increased confidence ; with cases won and large experiences ; with friendships made that turn into line quickly when one is known to be successful. Such is the whim of human nature that once on the wave of popular favor, every one who knows you is pleased to be friendly and joyous at your victories. "Who did not know that Garfield was great, and would exceed Grant's popularity in Chicago? Who was more willing to call Grant great while away over the water, standing at the foot of the high stone steps, as Queen Victoria came down and held out both hands to greet him? Who did not thrill with pride as he marched arm in arm with Bismarck? and later rode through Jerusalem in triumph? rounded the Globe and landed at the golden gate of his native shores ; called out vast crowds to greet him, and was the lion of two Continents? Such is life, and such is victory. Success makes friends, and defeat makes enemies. The world will bow in season, or growl in season. Let one slip like Colfax — once one of the greatest of senators — how soon were his enemies ready to belittle his honesty? See Conkling, one of the most brilliant of statesmen, and whom millions believed the leader of all stalwarts, how soon he was maligned by slanders? But the glory of the lawyer is his strength. His knowledge and acumen must be forever respected. It 112 TRIAL PRACTICE. is his lasting capital. Fires never burn it ; slanders cannot kill it. Distance, time or rivalry cannot de- stroy a man's legal capital actually acquired and fre- quently tested. This is the merit of the whole mat- ter. What one owns in knowledge is his, is valuable, is lasting. .SHARP PRACTICE . The worst thing that can ever happen to a young lawyer, is to believe that he is smarter than the aver- age. If he gets that notion before others learn it, and commences to play the low trieks of taking snap judgments, he is known to be on the high roads to in- famy by all good advocates. A thousand and one cases occur in practice that make counsel rely on each other for courtesies, and extensions, that appeal to sense and reason, and can better be granted than denied, and never should be treated with captious dealing or little advantages that are always unprofessional. Absence from home, sick- ness, or engaged elsewhere, have often been used by some to make costs to clients, and bring discredit to his counsel by a long wrangle to reinstate himself in the lost opportunity. An advantage so gained would be but faded laurels to deck the brow of an advocate's good name, which, after all, is better than great riches. It does seem silly and senseless to practice such arts and deceits, for they are not arts in business, when the readiest means of making friends is fairness. There is no art like the system of fair play. As soon should TURNING VERDICTS. 113 one strike a child or a woman, or a man when down and disabled, as to take mean advantage in a counsel's absence. This fairness, is of course, limited, and must be gov- erned by firmness, else some indolent attorney will be ready to use it as a means of undue extension. The border line of where courtesy ends, and right asserts itself, is generally well marked and easily followed. A high-minded lawyer will win his cases on their mer- its, and can easily be selected from one who trifles with confidence, and this leads to the fact that is vital in practice : A clear knowledge of the character of one's fellow lawyers. Many a man would be better trusted, if better known, and a few would never be trusted so well after their conduct was proven. It is safe to overcome evil with good, and assume that none are so bad that could not fall lower, and he is a hard man that would injure another wilfully. The worst of all things about sharp practice is the bad name that follows its author. No one can be mean with his neighbors, and hold their respect or confidence. Sooner or later they will be detected and branded as tricksters or sharpers, and who can recover from the title of a traitor? The most contemptible dealing in life is that of left-hander/, underhanded ad- vantages. TURNING VERDICTS. During a slander trial in an eastern city, which prac- tically involved the character and chastity of a beauti- ful young lady, the plaintiff became very much affected by the issue, and made this appeal to her (S) '3?2- 114 TRIAL PRACTICE. counsel: "O! sir, may God and the saints protect you ! You hold my good name in your keeping ! Do your best for my sake ! Talk to the jury, if their sister or their child had been used as I have, how they would feel toward the one who caused it ! Plead with them ! Don't sit down till they see my wrong as you do ! " This, said counsel, so nerved me that I brought out in argument an imaginary interview, which at once secured the interest and good will of the jury, and a verdict of heavy damages. Her suggestion, he adds, was the most taking of all things to be said in her behalf. In a railroad case with seven witnesses to one, he used these taking paragraphs : Gentlemen: — The case of this obscure man is be- fore vou. You have seen him battling against all the power of a great corporation. The defendant is one of a confederacy of corporate monopolies that is grad- ually if not rapidly stealing the lands and franchises of the American people. Before the day when England oppressed the people of India, through the East India Company, great corporate powers as sanctioned by law, were not understood to be vested in individuals comprising or constituting corporations, and certainly •never expressed. The history of legislation in Great Britain and the United States, demonstrates clearly that the powers and privileges of corporate bodies have grown until they overshadow and oppose the rights of the people. In this country alone they have permeated into the Executive Mansion ; have poured the lejprosy of corruption into legislative enactments, and administered the law from the bench. READING LAW. 115 Take the single example of the State of Texas. It has an area of six to seven times the size of New York, com- prising 144,000 more square miles than the Empire of France before the fatal day of Sedan. On its broad plains roam millions of cattle ; and the beef of Texas is eaten to-day in London, and on the banks of the Ganges. Along its water courses, and in its mountain gorges are mineral deposits as rich as those that fas- cinated the gaze of Caesar orPizzarro. It has a wealth of live oak timber capable of constructing the modern vessels of the world. Still this great commonwealth is given over to the spoiler. Its people deprived of its lands, and its labor taxed to pay tribute to railroads and corporations, the worst of all the monopolies of the land. Gentlemen, it is true that we have but one witness against this mighty plaintiff and its seven champions. But my client is hopeful, for />> is right. He has dropped the anchor of his fate in your consciences, and patiently abides the issue with unfaltering confi- dence. READING LAW. A great teacher of Shakespeare kept telling his students they must read, and read, and read, to know the great author : and one said, " What shall I read, Professor? " " Read," said the teacher, " read every thing : anything ; all reading helps to understand Shakespeare." This is a hint to a lawyer ; read much, read often, read constantly. Master the details of law and its surroundings. It will all help ; it will be a fountain to draw from, and a wealth of learning is llti TRIAL PRACTICE. always useful. The time will come when you can use- it. Fuller's success in the great Rubber Patent cases- of New York, was from his accurate knowledge of the theme. Webster saved stories ten and fifteen years- lief ore he found a place for them in argument. He drew from Walter Scott, in his Bunker Hill monument speech, from the same author in another fine picture, and seldom addressed the senate without borrowed fig- ures of beautiful imagery. Everett in his "thrice welcome to General Lafayette,*' has three excellent Bible sayings, and every speaker of national note is a borrower or a gleaner of others thoughts and sayings, (iood things said are carried away and help to make a speaker's character. Sooner or later if one is ripe, and full, and fluent in good thoughts, whether culled from the classics or the doings of daily life, he will be marked and remembered, as Robert Collier is, for his research and ripeness in scholarship. No one can learn too much, no one can know too much, no one can be rounded, and full as a fountain of life thoughts, with- out reading and travel. The standard text books are, of course, the founda- tion. These should be read, and their salient rules and principles written out by the student and large portions committed.*' Principles should be memorized and repeated often by recitations to each other like a grammar lesson. It is not what we read, but what we write out and make our own, that is useful. Next in order are Special Works, now so common and so useful, where one man spends years in bringing the essence of fifty volumes into one. Such reading is in- valuable. It is a brief on their subjects treated. CIRCUMSTANTIAL EVIDENCE. H< 'These are the standard works of advance practice. I need not name them ; to read them is to enjoy the latest court contests. There is another class of law books that arc mere dictionaries of reference — the reports and digests of the different State and Supreme Court decisions. No one is expected to read them all. No one could. Life is not long enough if he desired to. With these a •chance acquaintance, an introduction, at least, is useful. It is with books as with associates. Some are good companions ; some good friends ; others will do to cul tivate, and may become friends in due season. Many a gem lies hidden away in a book that has for years been slighted and neglected. But, as a rule, if one reads the legal journals, weekly and monthly, he will find the useful legal literature well defined and suitably advertised. The legal profession is the learned profession, and seeing that the doctors faithfully report all amputa- tion S r tumors and strange achievements and successes, I have often wondered why more attention has not been paid to the use and benefit, the experience of dif- • ferent lawyers would be to each other in trial practice. CIR< TM>TAXTIAL EVIDENCE. Many strange cases of circumstantial evidence are reported, and more has been written against capital punishment on this account than all others combined. Here is an instance of strange circumstances ending strangely : 118 TRIAL PRACTICE. In 1775 there lived near London one Marble who* owed a miller £600. Marble was known to leave home with the mone}' to pay the debt, and after a week's absence, foul play was presumed and diligent search instituted. About the same time the miller lost a dog by poisoning, but suspicioned no one, and assumed it was an accident. The authorities called on the miller, Avho had seen Marble receive the £600 from bank, and asked where Marble had gone to. The miller replied that he had left by the back way intending to call on a hunter, buy some game and return. That it was in the evening when he left as stated. Great excitement prevailed. Men had seen Marble enter, but no one ever heard of his leaving the mill. Some suggested that the £600 made him a prey to robbers. But suspicion soon fell on the miller. He was searched willingly. When they reached the cellar they found fresh earth, which he said was where his dead dog was buried. Digging, they found, not the dog, but the body of Marble ! The miller stoutly protested his innocence, but the hunter suddenly remembered that he heard blows in the mill when one man said: "We'll settle all our scores here." Doctors said the blow on the skull killed Marble. The miller grew excited and protested his innocence, but was convicted and beheaded, and the people thought the law had been vindicated. One day, three years later, a gentleman shot a hunter by accident, and heard him scream. Twelve- hours later he was found dead, and in his hand, with paper stained in blood, was written a confession that His FIRST CASE. 119 h?, Gordon, the hunter, had killed Marble for his money, and buried him where he knew the dog had been buried, having first removed the dog, which he had also killed to prevent alarm at the mill where he had been stealing meal. The miller's name was fully vindicated. He was innocent. HIS FIRST CASE. There is a rosy halo of imagination surrounding a. young lawyer's ideal of professional success. He im- agines, to begin with, that his first case will turn the tide of his whole future existence. He has pictured to himself a widow's son accused of a dreadful crime but little less than murder; of a network of circum- stances which his keen insight will unravel, and his- eloquence shall hold up to the jury in a bashful, trembling, pathetic, original and eloquent style which, sways the minds of men like willows in the wind. And then, when, by rising in their seats, they utter the welcome words, " Not guilty,*' he imagines that he will lead the widow through the crowded throng amid the hushed silence of an admiring people, who will be ever ready thereafter to seek him out in times of legal danger. But what a blunder this must be ! But one such can in a million ever happen. In most cases, if, by a series of little losses, and along line of labor (live years, at least), a lawyer learns, by the bitter school of experience, that people who go to law are cautious- in hiring new lawyers, and more cautious of suits after the first one, he has learned to bear rebuffs with pa- tience, he has made a good beginning. 120 TRIAL PRACTICE. Imaginary cases seldom happen. Imaginary success Is doubtful in any business. It needs contact with reality to rub the dust from a boy's dreams of great- ness. This case that I am to speak of is not one of the or- dinary occurrences in practice, but more nearly life- like than a boy-picture ; and I may say here, that i" believe as they were told me, the central facts are as true as Scripture. I use his words : " About the middle of June, LS6-, in a little office on G Street, some sixty days after admission to the bar, and while burning witli the youthful fires of en- thusiasm, I had written some friends in the interior that I would gladly serve them in any capacity, espe- cially if they ever got into trouble. Why I wrote it I never knew. Hardly had the letters time to reach their destination when a telegram reached me from Q , saying, «« Come first train — case ahead." "I don't remember much that happened that after- noon. I paced up and down the office, taking down first one book, then another ; glancing at Greenleaf on Evidence, Chitty on Pleading, Green's Practice ; look- ing over the law books, and finally I thought best to examine the forms of trespass, trover and attachment, thinking, of course, that a store must be closed or a swindler prosecuted. But nothing seemed to satisfy me. "I took the night train, and slept most of the way, reaching the scene of action early in the morning. I had thoroughly resolved, before leaving, to "take as little baggage and as much wit as possible," for I have always considered this a standard maxim in all cases. I was, therefore, not burdened with a valise, and, tak- HIS FIRST CASE. 121 ing a hurried breakfast, I started for my friend who had sent the telegram, and met him half-way to the Tillage : he lived in the suburbs. He was not long in showing me the situation, and together we soon plan- ned the campaign. "The cause of action was murder, and, strange to say, little was yet known of the circumstances. On the night previous, while the quiet villagers were about retiring, between the hours of nine and ten in the evening, a shrill scream was heard from the banks of the river Rasin. some eighty rods from Main Street. The scream was quickly followed by a sound resem- bling that of a heavy wagon drawn over a high bridge. As near as could be remembered, the words uttered in the last agony of death were, "Don't kill me ! Oh, Cal. don't kill me!" Or, "Oh, Cal, you'll kill me!" The words were shrill, and dreadfully tragic, of mingled praying, pleading and entreating — enough to melt the heart of adamant. But no help was given. " Let us see the river," was my first salutation : and already I trembled at the tragedy. Taking a little row-boat we paddled leisurely to the opposite bank to the hut latel}' occupied by Cal Water- man, who worked in a mill near by. and who had not yet finished his breakfast. I had previously learned of a joint insurance on the life of Waterman and his wife, the murdered woman, and determined to make the most of it. And here I may say that the agent who insured them was the means of my connection with the story. " Will you remain here, and let me meet him una- wares? " I said, as we neared the lonely cottage. 122 TRIAL PRACTICE. Walking .slowly up to the doorway, I met :i young man of nearly twenty-six years of age. Strong, well built, with black eyes, dark features, an ugly chin, and an arm like a giant's. " Good morning, Mr. Waterman ; that is your name, I believe." Why did he turn pale at a common salutation? "Good morning," came back rather gruffly. " I live in Chicago, and have come to your city to take proofs in the loss of your wife (the insurance I refer to,") looking him steadily in the face, while his eyes went everywhere. "Yes, yes," was his only reply in words, butlanguage is not all words ; "any means by which one person com- municates his ideas to another," is a better definition. "You had an insurance, I think, Mr. Waterman, that in case either you or your wife died the other re- ceived the whole amount? " "Yes, that's the plan," said he. "Five thousand dollars." " And you know we have to prove the loss? " I con- tinued. "Yes, I suppose so." " Well, Mr. Waterman, we are troubled most at not finding the body; can you relate to me some of the particulars of the accident? " To him I treated it all as an accident ; this pleased him, and I followed up the advantage. " Let us go over to where it happened." Over we went. " Now tell me the story in detail." He started off in a rambling, irregular way, but said enough to give me a key to the mystery. BIS FIRST CASK. 123 " I will meet you at the office of Justice Thomas at two, and reduce the statement to writing in the form of an affidavit, which will complete the proofs, if you will be there," I remarked, and he assented. Seeing the justice, and summoning all the witnesses who heard the sounds, and knew of the search for the body, I was ready at the hour for the proofs to be per- fected. Quite a little assemblage convened at the mag- istrate's office to hear the news of the tragedy ; for a stranger in a village bent on an errand of such interest created no little excitement. The story of Waterman was short and sullen. He had not worked that day, and at about eight in the evening had taken his wife in a row-boat for a ride. They passed up some five times, and floated down with the current till a little after nine, when the boat struck a log in an eddy and upset both in the water. He had swam to the shore, some four rods to the right, and, hearing the noise, one of the neighbors called to know what was the matter, when he told him his wife had fallen overboard. The man said, "Where is she?" Waterman replied, "It's no use to look for her now ; it's dark, and the river is very high ; it will go down in the morning." "Is that all, Mr. Waterman?" I asked, as he con- cluded. "Yes, that's all I remember." "You say you left home at eight in the evening?" "Yes." " Did you not know that the river was high, and were you not afraid of it?" "Oh, no, I am not afraid of water." 124 TRIAL PRACTICE. "A good swimmer, are you?" "Yes." " How far can you swim?" "A half mile." " Can you dive without strangling?" "Oh, yes, five times in succession." " And you went up and down about an hour and a half, altogether?" "Yes." "And the eddy is very near to the bank on the left, is it not?" "Yes, about twenty feet off, I should think." "And where you landed was some four rods away?" " Yes, near that." "You started directly for the shore when you fell in, did you not?" "Yes." " How long did you stand in one place on the shore before Mr. L came along?" " About fifteen minutes." "Your wife fell out last, did she?" "No, I fell out last, when the boat tipped over." " Did your wife call for help?" " Yes." " And you stood on the bank and looked on ?" " No, I couldn't see much." " Could you see when you found the boat, what was in the bottom?" " Yes, a heel of a slipper was in the bottom." " Were the oars shipped in their places?" " Yes, I think they were." "And you went directly home from there?" "Yes." "And rose early next morning?"' "No, not till half-past seven." " How Ions; had you been married?" "About three months." "How much insurance did you have?" "Seven thousand dollars." HIS FIRST CASE. \'2~y> ' ' All in one com pany ?" " Yes . ' ' " And you are a good swimmer, and heard your wife beg for God's sake to save her, and yet you left her to die, and left her in the water without alarming the village, and went home and slept till seven and after, and this is all you have to say in proof of your claim to the insurance?" "No, I have got the papers, "" handing out the policies. " That will do ; stand down." The balance of the story is short. AYitnesses were sworn to show that none to good a feeling existed be- tween the newly married pair. Evidence conclusive was shown of the boat's never having been tipped over at all. The heel of the slipper, wrenched off, denoted foul play. The struggle and screams were evidence of more than collision with a saw log. The strong man had deserted a drowning woman only when she was dead. That was the belief all over the court room ; else. why did he sleep like a log when his wife was lost in the water? Why stand like a brute and hear no appeal to rescue — he, the swimmer, the diver, the mill hand whose life for years had made him accustomed to water ! Would a man treat a dog in this way? This was a kind of a little speech that cropped out unawares. I was boiling over with revenge. But the justice looked wise as he said: " The Corpus Delicti has not been full enough for a warrant for murder. We must first find the body." Before we separated, each witness had signed the testimony, which I rolled up carefully, and started for the city. 126 TRIAL PRACTICE. I had killed the squirrel — my object was to defeat the payment of the insurance. It was defeated. But the little speech was too warm for the furtherance of justice. Waterman departed, where, I know not. The body of his wife was found, ten days later, eight or nine miles below, with marks of violence upon it. The slipper heel fitted exactly. And now, as I look back on my first case, I can see with sorrow how I "killed the squirrel," but frightened away the larger game. The result of the victory brought business, and courage, in the sense of the Indians' theory, that the spirit of every enemy slain in battle enters into our spirit to make us stronger indians, while defeat takes the spirit all out of the defeated." LIKE? AND DISLIKES. A jury of twelve men is usually composed of one- fourth to one-half farmers, an equal one-fourth of business men, one-fourth of tradesmen, and the last quarter men of "elegant leisure." This is a city estimate. In country courts supervisors prevail. In United States court juries are very largely from lead- ing farmers of their district. Of the first class farmers in general there is more than an average of hard common sense — an excellent element on any jury. No class of men believe more in even handed justice. They are seldom approached with bribe offers. They are naturally honest and careful. They reckon slowly, but surely. They are economical and tender-hearted, and if they understand the rights of parties, they are generally sure enough much on the candor of witnesses, that thoroughness is the only true motto to prepare by. So with the trials of -lander and libel cases, that fill so many day- of city court business, they turn on the foundation facts from which they arose. -Much will i on candor ; much on character, and not very much on unknown law of libel. These are sensational or paper cases, that consume time and pay poorly. Under breach of contracts of various kinds, consid- erable money i- yearly recovered. It is not only right but righteous to compel men to live up to their con- tracts, and counsel who appear for plaintiff have an easy road to enforce such matter- as right and equity should enforce in a court of justice. The trial of grain gambling cases, collisions, en- dorsements, sureties on bond-, and land contracts, with occasional breach of promise and malpractice cases, will till a good space on every circuit docket, but the rules governing each are best explained in special works on the subject. (10) 146 TRIAL PRACTICE. It is enough to know that the law of a trial is like other trials, but the facts of every trial may vary, and are likely to differ materially. That is why a brief of facts and law is essential. That is why evidence must be stud- ied, and witnesses made to reveal the truth without concealment, and with candor and circumstances. There will arise arson cases, right of way cases, corporation contracts and paving matters, lines to de- termine, titles to establish, estates to settle, and elec- tion contests. Mysterious are the ways of men in business ! They often spend a hundred dollars to settle a quarter hun- dred dispute. But the true lawyer need not advise bad law suits. The true rule is the case early men- tioned in this volume of Chief Justice Waite's career : To find the real merits in the office, regardless of what ■clients want them to be, and advise accordingly, al- lowing no client to be judge in your own office, but make that office and your judgment the Supreme Court of all cases before any burden is brought on ^clients unwisely. CRIMINAL COURT CASES. 147 CHAPTER XV CRIMINAL COURT CASES. TWO STRANGE DEFENSES. Larceny, burglary, arson, assault with intent to kill, robbery, forgery, embezzlement and murder, are the chief offenses tried in criminal courts. The first is so common that the proof of property and the taking requires but a few moments, and generally results in a speedy determination. The works on criminal prac- tice treat extensively of the essentials to be shown, and hint at the defenses. The felonious taking of another's goods is always confined to the depraved, and charac- ter is one of the best defenses for the early offenders ; failure of identity, with steady employment and lack of motive, go a great way to disprove it, and few good men or women suffer under this charge, if properly defended. That the police should single out one, it is not always conclusive of guilty knowledge or inten- tion. Burglary, a crime next to murder, will also bear the marks of a hardened nature. Burglars are either caught near the act, in the act, or with marks of the 148 TRIAL PRACTICE. crime upon their persons. Character should be of weight, for no good man would ever become so de- praved, and instances must be rare of this crime being committed by early offenders. As the Almighty never mistakes in putting up a human face, so a jury should be able to judge some by appearances, and counsel with a real burglar to defend, has his hands full in preparing. Arson may be different. Too many over insurances are collected by men who burn buildings with mercen- ary intent, and never dream of the dreadful conse- quences. Rich men, or comparatively well off, have committed arson and embezzlement. Indeed, so com- mon has become the latter offense, that few can not remember some one well up in society who defaulted and condoned it, or left for a neighboring nation. I recall an instance successfully defended, where one worked twenty-one months traveling for a tobacco house, and was short $2,200, who changed the books to conceal it, failed to report as collected, worked at $600 a year and expenses, hoping to have an increase in July and again in January, whose wife had been told that he was an excellent salesman, and should be rewarded ; that it mattered less what His expenses were if sales were in proportion. Well, January came, and no increase. The salesman made a statement, slipped it under the store door, and fled to Canada. It clearly showed the embezzlement. He wrote to the house to meet him, and he would settle. He was told by one of the firm to come back and work it out, and con- sented. Once in the States he was arrested. Covered all over with guilt, to all appearances, how can one so- guilty be defended ? CRIMINAL COURT CASES. 149 Lawyers do get such cases. Let us see : " How did this shortage arise? " ''By advertising, •and treating, and spending too much for the house." " Why did you conceal it? " "To retain my posi- tion," he answers. " Did you not fear detection? " " No, I was pay- ing up old debts with new collections, like a retail mer- chant buying on credit." " Did they know of your high expenses? " " Yes, they threatened me once, and wanted to limit it to $4 a day. They turned me off partly, and my wife inter- ceded." "Ah, she knew of it? " " Yes, all about it." One witness and two circumstances may not show an intent after all. So, with these facts before the jury, a good charac- ter, an excellent wife — a fine witness — a splendid and full statement, all consistent as stated ; a memoran- dum book with thirty paid up and crossed off embez- zled items, it was urged to the jury : That there was no intent, the essence of the offense established — 2:01112: to Canada was not embezzlement. The statement was not of itself an offense. The memorandum showed, if anything — anxiety to pay. The wife's statement showed he had hope of high wages. He was holding on, and hoping to pay all and be even. The time for a raise was a time of disaster. He was overtaken by a storm, and hung on the life-boat of one reason which should clear him ; anxiety to main- lain It is little liome, and increase the firm's business. Not for finery, or fine houses, or horses, but on a lim- 150 TRIAL PRACTICE. ited salary, night and day, he roamed the States to build up a revenue for his cigar firm. Going through 400 saloons at their bidding, treating, as directed "not to be too stingy," who knows but the firm had received its value? Who knows but for twenty years their revenue would be increased by the expenditure, had he not, after all, exceeded his authority, and used too much of that money out of which he had permission to pay expenses and his paltry salary? Sure enough, this line of thought cleared him. The very best defense in forgery cases, is implied authority to sign. That is, if through some dealing,, it can be implied. The next best is not guilty and good character. This is not a case of alibi defense. It must be boldly met, and mastered in the office first, then in the court room. And in this connection, it may be said all cases should be first won in the office,, then in the court room. It is the only safe rule, the only reliance to reach a victory. The- defense of murder and manslaughter cases, judged by results, is more often successful than almost any other. I remember many an instance, where on first reading of a brutal homicide, it seemed sure con- viction to the perpetrator, and as surely ended in an acquittal. Of course there were circumstances of an outraged home, or a quarrel, a plea of self-defense, or an immediate cause that gave room for doubt, that before seemed a certainty. Take the Barnard-Curtis homicide of Lapeer. The accused was supposed to be in love with a seventy year old minister, more adoration than love about it. She was fair, rich, and under forty. But such was her CRIMINAL COURT CASES. 151 desire to attend his service, that she followed him from place to plaCe to attend his meetings. He seems to have been annoyed, and his wife also, by her atten- tions. It is mid-winter in Lapeer. An evening ser- vice has commenced. The snow is deep ; the village houses dimly lighted. Mrs. Barnard enters church late. Her face is marked and scratched ; her hair dis- arranged, and she is in a deep blush of confusion. A few moments more and messengers arrive to call Elder Curtis to the house, there to mid his wife burned to a blister nearly all over the body. Her long gray hair burned off her head ; her face blackened ; her arms charred ; her body in a horrible condition, and she in dreadful agony. A notary takes her dying declara- tion. It is, in effect, that she was reading by the stand by lamplight, and was not able to attend evening service. That Mrs. Barnard called, and threw a stand- cloth over her, poured oil all over it — during which Mrs. Curtis clawed and scratched and contended with her murderer. That the hot flames soon smothered her. But she was sure Sarah Barnard had tried to kill her. Mrs. Barnard's whereabouts were traced. She claimed to have been lost on the way to church, but not to have been near Mrs. Curtis. Her face marks and deranged hair were said to come from a fall ; she slipped down on the way, and was excited from being lost. This was her story. The poor victim died sud- denly, proclaiming in dying breath, Mrs. Barnard has killed me ! This seems a clearly made out murder case. Let us see. Rich people employ counsel. Judges grant a 152 TRIAL PRACTICE. change of venue. Experts, under the artful manage- ment of J. B. Moore, of Lapeer, and Cf. V. N. Lo- throp, of Detroit, explain that of thirteen exploded lamps, eleven broke, looked and appeared like the Curtis lamp left burning on the stand that evening. It was an explosion they say, and a confusion. But what of the scratches on Mrs. Barnard? Oh, as she says, marks of a fall on the crust, and confusion from losing her way in a strange village. But what of the dying words of Mrs. Curtis? That is accounted for, says Dr. Pratt, by a vivid dream, so common to old people. She was, doubtless, very jealous, doubtless knew of Mrs. Barnard's being in Lapeer, fell asleep, dreamed, half awake suddenly clutched the stand cloth, jarred the lamp ; it exploded and set her on fire, and, in the confusion, it seemed to her that her enemy had been there in reality. Two arguments on this theory led a jury to say not guilty. But they may have been mistaken. If there is one lesson clear in this chapter, it seems to be that in all criminal cases nothing is impossible to one who has fertility of resources, adroitness and tact to apply them, and eloquence enough to enforce the theory successfully. Remember, every case must have a theory ; every defense must seem reasonable, and every lawyer must be ingenious to be lucky in criminal practice. GIVE A LITTLE. I have watched the progress of great advocates when trifles arose like clogs in their pathway ; how they yielded, and gave way some trifling thing to get GIVE A LITTLE. 153 a better one, and never noticed a strong man to be very captious over minor matters. If a man has merit in his action he can not afford to smother it with husks and shavings, or obscure it with the dust of petty differences. When one is hunt- ing for deer he can pass by quails and pheasants, in the hope of better game with the same ammunition. But many a lawyer >pends his force on everything alike, in one long dead monotony : as if he mast win every point or stand defeated. Racers are never so silly. They lose a score often for interest, or gain their end at the home stretch amid applause and surprise together. I have seen a lawyer spend a half-hour of his speech in abusing witnesses that a hint of his mistaken story would have reconciled with reason. It is far better to give way a little, and gain by it, than to adhere too closely and divide a jury on trifles. The truth is, in many cases parties testify with doubtful intensity, and counsel should be guarded not to allow his client's be- lief to form the foundation of his demand. Belief is one thing, evidence quite another thing. Often we believe fraud has been committed in assignment and chattel mortgage cases ; seldom are we able to show it by evidence, sworn to from actual knowledge. Suspicions are common in belief, but are never evi- dence, and they are the usual foundation on which fraud cases are based and prosecuted. Facts that cannot be proven should be dropped. Matters of no bearing should be treated accordingly. Cases are not won in abuse of counsel, or abuse of witnesses, or often one.'//' ,.■>> positions. The average 154 TRIAL PRACTICE. mind prefers some sense and reason in argument.. To reach a jury one need not be too very certain of every point, and thereby lose all, if anything. Far better to give a little ; to go a step in the direc- tion of an adversary, and he may go so far in re- turn. After every case some things will come to light which met in the true spirit of manliness earlier, may have saved hundreds in expenses, and may have settled the whole matter. I was never more touched by the sense of fairness then in listening to Judge V., in Leavenworth, at the hearing of a divorce case where both parties had shown far too much bitterness. After hearing all patiently, the judge remarked : " Have you always lived this way? " •< No, sir," said the wife mildly, " only since he neglected me for other women." " Did you not love this man when you married him?" "Certainly. I would love him yet, if he used me decently." "Come nearer, sir," said the court, addressing the de- fendant, " How long has this trouble lasted? " " Only for a year or so, your honor." "Did you not love this woman when you married her?" "Yes, your honor." ' By this time both were in tears, and the court added : "I am afraid you have been 'magnifying your differences. I advise you to make up at once. If you will, I'll help you." " So, you think (turning to the wife), that you could live happily together? " " Yes, your honor." COURAGE IN COURT. 155 A few more words, and man and wife went out arm in arm from the effect of a little touch of nature in the court's kind words. Had lawyers always done as much, many quarrels could have been peaceably settled. COURAGE IX COURT. True courage is not boastful. Determined men are silent and full of deeds, with few words. To threaten, is to betray weakness. Real strength is better shown in deeds — something done, something executed. "Report what has happened, and never talk of what is likely to happen," was a rule of the Tribune under Greeley's management. Simple courage can be shown by even refusing to quarrel, or even show anger over little matters, and reserving one's strength for better uses. " If I only had courage," said a student, " but when I stand up in court, I tremble." Then go where you are afraid to go, and go there oft< n. Courage comes in three ways, first, by confidence in your positions, second, by thorough familiarity with law and evidence to sustain them, and last, by fre- quent experiences in like matters. Swimmers learn and gain by practice; singers by drill, and speakers by similar means in a like manner. "When I first walked down the aisle of a great church," said a leader of society, "I felt that if I could fall through the floor, it would be a relief to me ; now I never think of it, and I made up my mind," he continued, " that I would go till I overcome my bash- fulness." 156 TRIAL PRACTICE. There is little more needed than an aptness, a will, -courage and frequent trials to ripen one in practice. Learning early is the right course. Neither too for- ward nor too slow, but with a resolute stand to keep in line, and not be beaten out of one's course by his own fault, is the true resolution. There is no reason why one lawyer should yield all rights to another. There is no rule why one with right on his side ( which is always a majority), should quail before a multitude. If he does so, he does it at his peril, and will find himself weakening, where he should be gaining cour- age and clientage. Clients like to be well represented. They hate to be talked out of court, or bluffed out of a verdict by lack of proper resentment of counsel. If a lawyer is defeated after a hard fight and an artful and courageous action, he loses little by defeat, and gains much by his adroitness ; but a heartless and half heedless defense, is never respected even by an adver- sary. Every lawyer must make his rank by deserving acts of practice that shows his worthiness. Counsel are timed like racers — they are judged by their rec- ord. Too many losses, too many petty quarrels, too many little acts of inefficiency, even one such act, en- dangers the confidence in ability, and prevents promo- tion. Soldiers are promoted for valor, citizens are eleva- ted for their uprightness and ability, with a reasonable art of showing it, and lawyers are not sought out in dingy back offices, dressed and surrounded by negli- gence, unless they have mental courage and caliber to win court victories. Why is the rare painting singled •out from the others, except for some bold outlines and a soldier's verdict. 157 striking features that others have failed to equal. He that would win, must pay the price of advancement — courage, patience, clearness and a will to hold on faith- fully to the end. A SOLDIER'S VERDICT. Col. Charles Spencer, of Brooklyn, tells of his ex- perience with the late Edwin James, in a soldier's claim for $1,800, money loaned to a friend after the war, and in the story is a rare point of practice — a hint on cross-examination, which the Brooklyn Eagh gives as follow- : Deft mid nt's counsel, Mr. James: — "You loaned him $1,800?" » I did sir." "When, sir?" "In 1866." " Where did you get it? " "I earned it, sir," he replied, meekly. " "When did you earn it ? '" " During the war, sir,'' (meekly). "What was your occupation during the war?" " Fighting, sir," (modestly). Up to this time the case had been doubtful, but the preponderance of evidence was easily seen for the sol- dier. Col. Spencer went to the jury with great force on the career of the soldier : " Who guarded our liberties,, helped to save one nation for one people, risked his life," etc., and grew touchingly eloquent, and gained a full verdict. "That war speech did it," said attorney James, "and you discovered it all through my cross-examination." 158 TRIAL PRACTICE. "Yes," said Spencer," and you failed to discern that my client was a Confederate soldier ! or you could have changed the verdict." It don't need a double four-horse team to draw a sure conclusion as to the effect of this cross-examina- tion, and the shrewd replies of Spencer's client, who, with his counsel, knew where to stop, — the key to many a signal victory. WHEN TO STOP. Aaron Burr and Abraham Lincoln both knew when to stop talking to a jury. Burr spoke generally only thirty minutes ; Mr. Lincoln's best efforts were deliv- ered in about twenty minutes. Patrick Henry was of the same terse style of speakers, and Tom Marshall not far behind in sharply cut sentences. These men all knew when to stop. Horace Greeley, Wilber F. Story and Whitelaw Eeid, are of this happy style of writers whose words end up a period with a ring and tingle to be remem- bered. Spurgeon, Collier and Buckley have a share in the gift of brevity, but few ministers, and fewer lawyers, begin to know the right ending to an argu- ment. Many lack insight. Some lack confidence, and others prove on beyond the merits, and attempt to prove their side, then disprove the other side for greater certainty. They generally create uncertainty. No amount of instruction can teach what should come by intuition. If an advocate can't take the hint by the eyes of his jury, he will not be likely to profit by WHEN TO STOP. 159 a law lecture. The fact is, this work is less intended for instruction, and more for suggestions and exam- ples of good practice drawn from the efforts of many counsel. It will be noticed by a speaker of any note, that he states interestingly, argues logically, and closes with warmth and energy. The clear, deliberate start, the forcible and determined body, and eloquent ending of an address, pleases most people best ; and when to stop, is instantly after the three things named are ac- complished. It is not necessary to play a repeat ten or twelve times to be impressive. The music of a band or an opera is not looked for in a court room argument. "I could listen to that man all night," said a hearer of Wendell Phillips ; but will he not be all the better listener again by irettim; a little less than the full measure ? Lawyers who expect to increase their business, will have time enough for practice in speaking ; but to practice on an audience, or more especially on a poor patient jury, is a sad error in judgment. As in the story of Col. Spencer's soldier verdict, a broad hint is given on over trying cases or too much cross-examination, so the rule applies to too many witnesses. Two of a kind, six on character, and a kind of men to be believed, is better than a cloud of unreliables. Quit with a victory ; begin and end with good evidence ; chink in with medium one's if they are needed, but never depend on counting witnesses to secure a preponderance of evidence. It shows a weak- ness to tell a story over too often ; even a good telling dulls the pith of it. Some one will vary and change 160 TRIAL PRACTICE. the shading, till it falls short of interest and loses its corners. The round cornered periods and sentences never take like a vigorous, sharp ending. Think, for a moment, of the vast crowd of poor speakers that tire a court and weary a jury with end- less speeches, burying their evidence under words, covering their points three deep under periods of great length and great transparency. While one should guard against stopping one second short of saying the right thing, and always proving his own case com- pletely by his own witnesses, he cannot be too careful to end his evidence and close his argument with a climax that is telling and convincing. There is no rule so safe in testimony and argument, as to quit with a victory. REMEMBER LITTLE THINGS. It is well to remember not only that kindness begets kindness, but that "vainly is the net set in sight of the bird ;" so that kindness must be a growth of our being, an every day practice. Chief Justice Waite never passed an old acquaintance, juryman, witness, or party to a case, without a cordial recognition. His nature was one long day of even dealing, and considerate de- portment to others, high and low alike. A friend says of Matt Carpenter : " I was with him in an important ship canal case, when hundreds of thousands depended on the issue. He had turned away caller after caller of distinguished senators and visitors ; he had declined all company, when the secre- tary announced, ' Air. Carpenter, the little colored girl REMEMBER LITTLE THINGS. 161 waits to see you.' Instantly the pen dropped, and the senator had her come in, and said in a kind voice, ' well Liza, did you get the place?' ' No, Massa Car- penter ; that place was all full.' It was to be janitress of a committee room; the senator added, 'wait a moment, and I'll go with you, Liza ;' and out into the evening to the committee room, went the great supreme court lawyer, and soon secured the situation, saying: ♦ these men callers can come again, but it would break the little girl's heart to turn her away rudely.' The next day he won the canal case, but the joy at finding a place for little Liza was as great to the advocate as his greater victory." The incident touched me ; act* like these give all orators a better hearing before a jury ; it is not enough to be great once, true greatness is always great. I was in a United States court, when a distinguished counsel returned from a long trip to Europe. His return to the bar was cordially greeted ; first he paid his respects to the court, and then turning towards the bar he met the old janitor on his way with an ice pitcher, whom he greeted with equal politeness, and so on through the bar, but nothing marked the gentleman more than the natural ease with which he remembered the colored janitor. In most cases lawyers have to win the respect of parties and witnesses, and when one gets the name of sharpness, he draws that much less from his witness, and is that much more discounted by the jury. As "modulation is the music of oratory," so tact is the weapon of an examiner. Men of fairness, men of candor and reputation are not long in getting (11) 162 TRIAL PRACTICE. the facts of a controversy in issue ; therefore, it is all essential to be manly, to overcome the dread of testify- ing, to lead a witness to truth telling in natural lan- guage. To gain the confidence of everyone, and deserve it, requires a life of uprightness. To such a lawyer, half of his cases are easy victories. His words are weighty. Suppose such a man asks a witness, " may you not be a little mistaken?" the answer will be, "Yes, possibly." "May not the plaintiff have been just a little to blame?" " Yes, he may have." "And you may be just a little prejudiced?" " Yes." " May he not have spoken harshly?" " Yes." " May he not have looked just a little angry, or disappointed ; or attempted to show his manhood ; then his courage ; then his anger ; then he did brace up?" " Yes, sir." "Just as you or any brave man would do, did he?" " Yes, sir." " And was ready to strike (or shoot) if forced to?" " Yes, of course he was." After these yeses begin to be repeated, the judge would get "yes" to matters of importance. If one can listen a few days to the average run of court arguments, he will soon see how poor and awkward, how dull and monot- onous most of them sound to outsiders. It is the prov- ince of counsel to present facts in a winning way, and in language persuasive. If he sang in a choir, he would practice ; if he lectured, he would write and commit every paragraph : if he dreamed of fame as a painter, he would study fine art dilligently ; and this is but one man's opinion, but firmly believed in, that any advocate can be greatly aided by a thorough study of fine speeches, arts, and samples of rare work by others, REMEMBER LITTLE THINGS. 163 and one that also believes many cases have been won by pleasant and pungent arguments, where the facts pointed to the other side without this rarest of all gifts, •earnest eloquence. " He that is wise, is wise for himself," is a saying that ought to be framed, and hung up in every law office in the land. If he is wise for himself, he will neglect not to secure prompt settlements, and thereby lasting friendship with clients. That man who owes his counsel an X, or double eagle, or half hundred, some amount too small to be sued for, will go else- where, and pay his money so long as the debt case can slide along uncancelled ; and more clients change law- yers for lack of prompt settlements than any other cause, but the losing of eases. Of course lack of success always leads to change of counsel. But a lawyer is to blame who has failed to tell the real prospects of suc- cess and failure at the beginning; he that is wise will take a long look ahead, and provide a permanent life work by reasonable charges, honest advice and sturdy integrity. These all make friends, and friends make practice. I have heard attorneys say, " All the business I ever got came first from strangers ; my friends never helped me any." Poor fellow, he had never "grappled any friend to him with hooks of steel," or his story would be different. " He that would have friends, must show himself friendly," is too true to need one word of ■comment. The wisdom of the ages by the wit of one, Jieed never be distrusted. •' Better a good name and loving favor, than great riches, makes another of the rare rules of law practice." One who would have 164 TRIAL PRACTICE. " reason impelled by passion, sustained by learning, and! adored by fancy," should gather maxims and rules, and commit passages until his mind becomes a fountain of fine thoughts and rare sayings, that come like an authority, for quotations always sound like author- ities. ORDER OF TRIALS. 165 CHAPTER XVI. ORDER OF TRIAL-. The first step after a counsel is retained, as attorney •of record, is to determine how the parties will bring on the matter for trial or hearing. In the States where a code practice prevails, with but two actions, ■ex delicto and ex contractu, to entitle the cause on legal paper, set up the facts fully, and have plaintiff swear to them is all. This important act should be carefully done ; at least, a pencil draft to be made by a com- petent lawyer. This, with answer or demurrer, forms an issue. In common law practice States suits are begun by attachment, declaration, capias, replevin and sum- mons, which are generally on printed forms and easily tilled, except the first which requires the greatest care. Attention to details in either form will prevent confu- sion, and often a non-suit or demurrer, that greatly annoys a beginner in practice. Indeed, an experienced counsel of fixed reputation is injured by defeat on pre- liminary questions, and beginners are sorely mortified and recover slowly from early falls of this nature. The things most to be noted are : Names of parties. There is no excuse for not knowing the full name of a 16(3 TRIAL PRACTICE. plaintiff, and yet a $7,000 verdict was recently ob- tained, and that, too, after a lengthy trial, without noticing the error. An amendment cured the misno- mer. It may be well here to state that, under the now universally broad and liberal rules of amendment, the court has power, at any time before judgment, to amend any process, pleading or proceeding for the fur- therance of justice. As little is gained by dilatory pleas that at most, lead merely to better pleadings, no time need be given here to that branch of unpopular practice. Suffice it to say, that sooner or later cases must come to trial on their merits, and the sooner so reached the better : ex- cept where one defends in criminal cases with a bitter prejudice, and then time is a feature to adhere to. Suppose then a general issue, or not guilty, is pleaded, and the day is set for trial, are you ready? Let us see: Have you read your jury list? If not, some may be clients of your learned brother, others may belong by kindred or special relationship. This study of the panel is a rare point in practice. Two bad jurors may destroy the best argument. I know of one who raised a verdict many thousand dollars in a railroad condemnation case. Too much stress can- not be laid on a wise selection of a jury ; not in the sense to get biased men in your favor, but fair, even handed, upright men. A verdict of twelve good men should satisfy almost any reasonable client. With a jury sworn, are you ready? Well, you must be. But if some thorough work has been neglected in securing competent testimony and attending to ORDER OF TRIALS. 167 bringing witnesses into court, you are still lacking. These details of practice can no more be neglected than colors in painting. The very best lawyers are most thorough in details. Judge Curtis is a master of this branch. Spending three months in the Buford case to prepare his facts and authorities, very much of the time with witnesses and people of the county, he knew the testimony by heart before an expert was sworn. This case was unusual, but is a reward for a lifetime. Like Patrick Henry's Parsons Case, it is immortal. So terse and touching is the address, that two friends read it alternately for twenty miles riding in a buggy to each other. It was born of great labor. All great efforts in court are born of intense labor. Van Dyke's speech in the Conspiracy Case, required weeks in process of preparing. So, too, was Seward's pow- erful appeal in the same contest, and Van Arman put the power of his young ambition for a half } 7 ear in the same trial, and it made him a leader with western lawyers. But I had not finished with the order of trials. All the eloquence, and art and personal skill avail little without evidence! Evidence is the great cellar wall, corner stone, bodv and arch of all cases. Argument is the keystone, only you must have the arch to fit it. Therefore besides the first step — selecting a good case to go to court with ; the second step, getting it well at issue ; the third step, choosing a good jury ; the fourth step, having your facts well sustained by evidence, or the fifth step, having formed and mastered your the- ory, you are reasonably certain, if your heart is in your case, of a good argument. True earnestness scorns 168 TRIAL PRACTICE. all rules of rhetoric or logic. It speaks right on, like Mark Anthony, and will "put a tongue in every wound of Caesar," to stir a jury up to duty. Study the' arts of trial lawyers, like the painter studies his colors. Combine them, as he does, in harmony. Use them, as Anthony did, to attract, please, convince, excite and sway an audience to the side of right and justice. A STEANGE SUCCESS. During the early part of the war, in one of the Five Point regions of New York, a young Irish boy was arrested for larceny, tried, convicted, sent to Ran- dall's Island Reformatory. While there, his bright- ness attracted the superintendent's attention, and he was apprenticed to a New Jersey farmer until of age and removed from confinement. In his new capacity he soon became useful, and gathered up his little savings. He called often on his poverty-stricken mother and sister, and soon gained a place for the latter, and a better home for the former. It was conditioned in his articles that he should receive four months schooling each year, two suits of clothes and $100 when of age, and he was permitted to do little odd jobs besides. At eighteen he showed such a proficiency in scholar- ship as to desire to be a teacher, and bought his time of the farmer for the $100 and the extra clothing, and engaged as a district school teacher, meanwhile contin- uing to help his mother and -sister, whom he removed from New York to Elizabethtown, New Jersey. He succeeded well as a teacher, and studied law at odd hours ; was admitted when of age, and com- SHORT SAYIXGS. 169 menced practice with great earnestness. Succeeding beyond his expectations, at the age of twenty-eight he had a practice worth four thousand a-year, when the Governor of the State appointed him District Judge at $2,000 salary, an office which requires less than half of his attention, so that he still continues practice, and is counsel for a railroad company, with fair prospects of future promotion, many believing he will yet be Gov- ernor of New Jersey ! Through all his prosperity he has never attempted to conceal his origin, but often in his eloquent ad- dresses will crop out some pathetic allusion to his early life that makes him none the less respected for the burdens he has borne. Is there any parallel picture in history? Starting from the lowest, fresh from the doors of crime, struggling over the double obstacles of character and poverty, he has conquered adversity by his own un- aided efforts, and stands as a brilliant light of the New Jersey bar, and an honored advocate. SHORT SAYINGS. From Bible and best authors, Shakespeare and my scrap book : Unstable as water, thou shalt not excel. Quit yourselves like men. Let him that girdeth on his harness boast not as he that putteth it off. All that a man hath will he give for his life. A word spoken in due season how good is it? A word fitly spoken is like apples of gold in pictures of silver. 170 TRIAL PRACTICE. Faithful are wounds of a friend, but the kisses of an enemy are deceitful. Iron sharpeneth iron, so a man sharpeneth the countenance of his friend. The race is not to the swift, nor the battle to the strong, but time and chance happeneth to them all. Love is strong as death. Jealousy is cruel as the grave. To give unto them beauty for ashes. The oil of joy for mourning ; the garment of praise for the spirit of heaviness. Consider the lilies of the field how they grow ; they toil not, neither do they spin. Out of the abundance of the heart the mouth speak- eth. The law is good, if a man use it lawfully. The love of money is the root of all evil. * * * # * * Speech was given to man to disguise his thoughts. The greatest happiuess for the greatest number is the foundation of morals and legislation. He that wrestles with us strengthens our nerves and sharpens our skill. The cold neutrality of an impartial judge. There is, however, a limit at which forbearance ceases to be a virtue. He best can point them who can tell them most. Praise undeserved is scandal in disguise, at every word a reputation dies. For fools rush in where angels fear to tread. To err is human, to forgive divine. Great wits are sure to madness near allied. SHORT SAYINGS. 171 None but the brave deserve the fair. Dear beauteous death — the jewel of the just. — Vdughan. " So dear to heaven is saintly chasity, that when a soul is sincerely so, a thousand liveried angels lackey her. Driving far off each tiling of sin and iruilt." — Milton. Of one who loved not wisely, but too well. Trifles light as air are to the jealous confirmations strong as proofs of Holy Writ. A good name in man or woman is the immediate jewel of their souls. The robbed that smiles, steals something from the thief. How sharper than a serpent's tooth is it to have a thankless child. What a man's enemies say about him ought not to- be taken as evidence. We must be as courteous to a man as to a picture, which we are willing to give the advantage of a good light. Critics are men who have failed in literature and art. The secret of success in life, is for a man to be ready for his opportunity when it comes. Massena was not himself until the battle began to go against him. Fame is the perfume of heroic deeds. Oh ! Icy-hearted counsellors ! if thou hopest for mercy in heaven, show mercy upon earth ! worse than bloody hands is a hardened heart ! Keep with the good, and you will be one of them. 172 TRIAL PRACTICE. The ancients were inspired in races by dipping a torch in burning oil, and running with it in hand ; the torches of the winners never went out. There is no fiercer hell than failure in a great at- tempt. Of all the agonies of life, the worst is that we have been deceived where we placed all the trust of love. In character, in manner, in style, in all things, the supreme excellence is simplicity. I am in earnest and I will not excuse, I will not re- tract an inch, I will be heard. Popular opinion is the greatest lie in the world. — Carlyle. Words only live when worthy to be said. What a piece of work is man ! How noble in rea- son ; how infinite in faculties ; in form and moving how express and admirable ; in action how like an angel ; in apprehension how like a God ! TO PREVENT DIVORCES. The following beautiful and touching lines are from © © the closing portion of a discarded wife's letter to her angry husband, and such was the effect produced upon him by them that he returned to her and reformed. For beauty of expression and poetic imagery, these lines are unsurpassed by anything in the English lan- guage : " May the gates of honor, plenty and happiness be ever open to thee and thine : may no sorrow disturb thy days nor grief distract thy nights ; may the pillow of peace kiss thy cheeks, and the pleasures of imag- SHORT LEGAL MAXIMS. 17£ ination attend thy dreams : and, when length of years shall make thee tired of earth's joys, and the curtain of death gently closes around the last sleep of thy mortal existence, may the angels of Heaven attend thy couch, and take care that the expiring lamp of life re- ceives no rude blast to hasten its extinction." He that layeth his hand upon a woman, save in the way of kindness, is a wretch whom 'twere base flat- tery to call a coward/ SHORT LEGAL MAXIMS. Speech is the index of the mind. The law blushes when children correct their parents. — Coke. Vainly does he who offends against the law seek the help of law. — Coke. No one ought to depart out of a court of chancery without a remedy. — Year Book. No one is bound to do an impossibility. A wise judge ought always to regard equity. No one is presumed to trifle at the point of death. All things are presumed against a wrong-doer. Argument drawn from authority is strongest in law. Every one is to be believed in his own art. Deceit and fraud shall excuse and benefit no man. Reason is the soul of the law ; when it ceases, so- does law. — Coke. Let every one employ himself in what he knows. He that adheres to the letter adheres to the book. 174 TRIAL PRACTICE. Many men know many things, no man knows every- thing. — Coke. Words spoken vanish ; words written remain. There is no obligation to perform impossible things. The agreement of parties makes the law of their contract. We have the best witness, a confessing defendant. Few men have ever repented of silence. The. block of granite which was an obstacle in the pathway of the weak, becomes a stepping-stone in the pathway of the strong. As the shadows in the early morning, is friendship with the wicked ; it dwindles hour by hour. But friendship with the good increases like the evening shadows till the sun of life sets. The hand that rocks the cradle is the hand that rules the world. This is the country where hope is the tailor of every ragged boy. Who never walks save where he sees men's tracks makes no discoveries. Cowards die many times before their time. The valiant never taste of death but once. — /Shakes- peare. Let what every Roman thinks of his country be 'written on his brow. THE BOOTH SEDUCTION CASE. 175 CHAPTER XVII. THE BOOTH SEDUCTION 1 CASE TRIED IX MILWAUKEE, JULY, 1859. This trial was considered a test of skill between the •distinguished rival advocates, Ryan and Carpenter, of AVisconsin, wherein each did his best to secure a sig- nal victory. The case abounds in highly rhetorical passages, and was conducted with that master skill and signal ability with which both counsel were amply endowed. Mr. Carpenter divided his defense into four branches, and eloquently argued on each. Mr. Ryan answered Mr. Carpenter in fact and law, and launched into a bold and independent position in his own vindictive style of oratory, while Mr. Palmer, who assisted Mr. Carpenter, was exceedingly skillful in cross-examina- tion, and half won the case by adroitly showing no act was accomplished to constitute a legally defined crime. The report is out of print, and the case is exceed- ingly rare and valuable. The nature of the circum- .stances, and even the law cited would be in lan^ua^e 176 TRIAL PRACTICE. •too delicate to repeat at length, but the story is easily read in the chaste and ingenious statements of counsel. The case is one of the most celebrated in the North- west, and attracted vast crowds of listeners and much newspaper comment in Wisconsin, where the defend- ant was a man of great influence. As the law cited was largely from the British de- cisions, and has become thoroughly known through the State reports — besides being a little aside from this line of reports — it is not given in this connec- tion. Mr. Carpenter spoke four hours, and Mr. Ryan eight, each using about half his time in reading to the court on separate branches of the case. Mr. Carpenter said in closing : " I suppose no one will question the proposition laid down in this instruction, but I have put it in the form of an instruction, that it may come to you in that form with the authority of law from the bench. That it may stand before you as a fixed light in your path while you deliberate upon the argument of the coun- sel who will close the discussion of this case : whose special duty it will be to sum up on behalf of the prosecution. He is a strongman, and he comes to the task with that feeling which no lawyer who has long been enlisted in a cause can put out of his heart — least of all Mr. Ryan. He will come to you with a strong conviction himself, and with those earnest feel- ings and that desire for success which he can no more divorce himself from than he can change any attribute of his mind and heart. I expect he will speak learn- edly and eloquently, as he goes through the case. He THE BOOTH SEDUCTION CASE. 177 will examine this testimony in detail with piercing acu- men, and point out the inconsistencies of our wit- nesses. I expect this. 1 expect him to analyze our proof with all his severity ; see him do what I have often seen him and other great lawyers do — when there are no facts to stand upon — soar upward into the regions of poetry and imagination ; and appeal to the deep feelings of your nature : when he feels and trembles at the weakness of his proof upon seduction — he will soar away above the testimony and deal in glittering generalities, and wonderful nights of specu- lation. He can do it well, and he will do it. lie will put Booth through such a course of sprouts on moral- ity and virtue as no human being in this world was ever taken through before. He will torture him, and crucify him, and bring the blood to his cheek, and dis- miss it to his heart at his sarcasm and his scorching sentences. He smiles and shakes his head at me. He can not help doing it. [Laughter.] But I have to remind you that the instructions of the court will come after his remarks, to call you back again to the region of the testimony, and explain to you the duty you will have to perforin, remaining fixed and firm in your minds after his eloquence is over, and you have re- tired to your solemn determination in the jury room. * * * * # * "Now, gentlemen, I will leave this case with you, hoping that you will banish from your hearts all preju- dice ; all mere feeling : resist the enchantment of elo- quence ; and look only upon the law and the testi- mony. I have confidence that twelve men sitting here, with your look of fairness and intelligence, can- (12) 178 TRIAL PRACTICE. not be bewildered by the gentleman with all his power. That you will consider the facts alone : inter- preting them by the law as given to you from the bench, upon which this defendant is to be tried and a verdict rendered of conviction or acquittal — speaking only the conclusions of truth. That you will not al- low 3'ourselves to be switched off the track of evi- dence by" any exaggerated denunciations of vice and licentiousness ; or an appeal to you to rebuke sin gen- erally. You will examine carefully into this particular transaction — and this alone. It is a solemn duty on your part, to throw out of your minds all prejudice, bias and passion, and search for facts as they appear in the light of truth. One of you who are now jurors judging this man, may come here asking justice at the hands of another jury. You are liable, at any time of your lives, to be involved in such trouble. Inno- cence may be yours, yet it may not always shelter you from arrest and prosecution. Although it may sustain your conscience, it does not always prevent indict- ments, arrests, prosecutions and trials, and any one of you, although innocent as the heart of man can be, may, in a month from this day, stand here charged with such a crime as is now urged against this defend- ant. It is the great lesson from the Great Teacher that I am now trying to enforce upon you: "With what judgment ye judge, ye shall be judged ; and with what measure ye meet, it shall be . measured to you again." I do not believe that the counsel can more sincerely or honestly regret this transaction than I do, or de- nounce immorality and vice generally with one single THE BOOTH SEDUCTION CASE. 179 word with which you and I would not cheerfully agree, but we come here to administer criminal justice among men, fallen as they are, degraded by passions, and often led astray by the prompting of our erring nature, and to hold us up to the severe standard of law as it will, perhaps, be administered in the good time coming — to make men responsible to the se- verest rule for the slightest offense ; to deprive a man of his life and liberty for the least possible insult to a woman, would be a gross outrage upon our common nature. Your oath does not bind you to enforce jus- tice as if you lived in that fortunate age when the law in all its perfection will be executed, and man with re- generated nature observe, or suffer for the violation of all its requirements : " When the wolf also shall dwell with the lamb, and the leopard shall lie down with the kid, and the calf and the young lion and the fattling together, and a little child shall lead them." The theory of the counsel will probably apply, but it never tan be enforced till that time. You are to administer justice calmly and with charity. There is something in the heart of every man when he comes out in the sun and looks at vice, that is apt to startle him, and lead him into great extravagance, yet all men, under certain circumstances, may at least be tempted. I do not say that every man will fall, but we know that all men may be tempted, and you are to remember that it is your duty to try man as he is. You are not to be led away and lost in any extrava- gant denunciation of crime and immorality in general, but to investigate this one particular offense, and say in the same quiet and calm manner in which you would 180 TRIAL PRACTICE. settle any other question that might be brought before you in the discharge of your duty as jurors. You may entertain as much indignation as you please against vice and licentiousness generally, but do not pour it all out in this case. Give us only our share ; remember that we claim no exemption from the ordinary condi- tion of humanity — remember that none of us stand k ' by the course of strict justice," but because mercy is mingled with justice — remember that we all look for redemption from the frailties and infirmities of this state, and for admission into the circles of immortal blessedness, to the intercessions of a Savior of infirmi- ties and passions. JUDGE RYAN'S CLOSING ARGUMENT. Gentlemen of the jury: — A great deal of explana- tion has taken place both in the progress and summing up of this trial, as to the nature of this crime. I must say that I do not think that the first counsel who summed up here for the defense made light of it. I do not recollect that his associate shared in the light tone with which the first counsel spoke of this crime and its commission. I am not to dwell at length upon it again, gentlemen, but I say it is a crime in our day and generation of a grave nature, and the time is com- ing, and coining fast, when it will be graver. The sanctity of woman's person, the holiness of woman's chastity, are among human objects, next to life alone, the gravest subject of legal protection. What are we, or what have we, if we have no reverence for the per- son, — faith in the chastitv of woman. Take chastity THE BOOTH SEDUCTION CASE. 181 from her, and turn her out to run riot with the passion as men do, and where is society? Where the organi- zation of the world? Lose faith in the paternity of children, lose faith in consanguinity, and you hare no marriage, no paternity, no family — and what is so- ciety but the combination of familes? Man in the sense of sex is but a better brute, but unlike other brutes has faith in the chastity of his female. And, gentlemen, God meant that we should have it. God gave us that faith. I remarked yesterday that He had not given to us the same chastity that we might under- stand and comprehend the chastity of woman. But if God did not give us that, He gave u> innate faith in hers. It is not because of the sex of our mother, our wife, our sister, our daughter ; it is because we have an instinct of nature that woman is of a purer mould than man, and her chastity is a thing to be trusted in, as we trust in the providence of God. And when we speak lightly of it, as I must confess to the shame of us all who are apt to do it, it is because in mere vul- gar riot of language we do injustice to our feelings and thoughts, or because we have degraded our own na- ture by lewd practices down almost to the level of the brute. What is the world worth without the chastity of woman? ( H- what U man worth who has not a high respect for the sex of woman, a strong faith in her chastity? Such a man is to be dreaded ; distrusted as one in whom you can put no faith, for his character has fallen or is falling. As has been said here by both counsel for the de- fense, there are four things necessary to establish in this crime, I will follow somewhat in their order. 182 TRIAL PRACTICE. First, the marriage of the defendant, which is not dis- puted ; second, the previous chaste condition of the female; third, seduction, and fourth, illicit connec- tion. I do not agree with the counsel that the seduc- tion and the connection are so very materially apart in fact, as they seem to think ; but I will take these things in the order in which they name them, and go through them with them. We then come first, gentlemen, to the previous chastity of character of that little girl, Caroline Cook, who was here before us on the stand. The learned counsel who has summed up this cause said we had christened her a child during this trial for stage effect. Did the gentleman suppose that any stage effect we could use, would dupe you who saw the witness upon the stand twice, and toward whom your attention was particularly drawn. I called her a child without re- flection, because she seemed to me a child ; because, in all the proper attributes of childhood she appeared upon the stand, and was proved to be a child. And, gentlemen, when we brought that child upon the stand and showed her to you, and proved by her that on the 28th of February last, scarcely then more than four- teen years of age, she had had criminal connection with this defendant, when she swore to her own shame upon her simple oath ; you heard the simple story of a simple child ; a child you could see was not a witness telling a story. Upon the manner and nature of her testimony I shall comment hereafter. She was a wit- ness who looked back upon her memory for all she said, and then plainly and truthfully told it. She stood cross-examination here under peculiar circum- THE BOOTH SEDUCTION CASE. 183 stances. She was a simple girl in the hands of an able lawyer, and she stood there surrounded with all the embarrassments of her position — the terrible em- barrassments of a child at that age making such a dis- closure, after the months of shame she must have borne since the first discovery, broken in spirit, con- scious that every cold eye here was fixed staringly at her with somewhat of morbid curiosity. Under all these circumstances that child stood cross-examination as no bold practiced, determined, resolute woman, that they introduced here through the agency of Mr. Peter Turck, stood it. The gentleman cross-examined her long and severely, yet she never tripped ; for no honest, truth-speaking witness need ever trip. It is when witnesses do what Peter Turck's witness did, what Sheridan once said another statesman did, draw on his imagination for his facts, that witnesses stum- ble, and trip, and break down. Do you suppose that that little child, of an age so young, and frail and childlike that every one was surprised at her appear- ance, could, by any possibility of things, have had a previous unchaste career? In the name of God, where can unchastity begin? Is a female child, a little inno- cent child, which sometimes disturbs its drapery, un- chaste in the view of the counsel? Would they con- sider a child of three years old that drops its pantalets as unchaste? At what age, I ask, can unchastity be- gin, for God's sake. No, gentlemen, let man keep unchaste influence from the childhood of woman, and she will grow up chaste. Woman is never corrupted by woman. There is an outcast race of women who corrupt for profit, who corrupt as a trade, but not un- 184 TRIAL PRACTICE. til they themselves have been corrupted by man — not until a long career of corruption has qualified them for the work. No woman becomes a prostitute or a lewd woman save through the influence of the affections God gave her towards man. We may safely say that whenever woman loses her virtue, she loses it from no innate lust, from no female influence, but she gives up chastity, virtue, reputation, character, everything, to her affection for some rascal of a man, who betrays her, through the weakness of love, to guilt. And was it conceivable that this little girl, found throughout all the evidence on both sides, a child amongst children, as was well observed by Mr. Corson, should, of her own nature, and at her tender years, have formed an unchaste character, and become an unchaste woman? You have all the malignity that could be brought to bear upon her poured out before you in the form of testimony. How does their testimony agree? Gentlemen, we sometimes look for too much policy in villainy. We are apt to suppose that villainy is necessarily able. It is not so. Rascals are very often fools. In one sense every rascal is a fool, for honesty is the best policy. But often when men have become rascals, there is no sense in their rascality. They are often foolish in its practice. I think I can show you one rascal who has been a great fool in this cause. There is not a witness brought, or attempted to be brought here, who has not been visited again and again and over again by Mr. Peter Turck. Mark you, we find him out of that little neighborhood. He has been scouring the whole town. We find him on Michigan street, and in other places THE BOOTH SEDUCTION CASE. 185 as we proceed in the investigation. The counsel may say that it is proper for an employed attorney — a man if you please — employed to do the dirty work of the case, to go and see the witnesses and find out what they know. I grant that. If it were my cause, how- ever, I should prefer another man. I should not like the association. I would not bear it. I tell you now, I say it in the presence of this bar, and there is no lawyer here, although I see them from abroad, as well as from this city, who will deny what I say. Dema- gogues may tell you what they will, but lawyers are a great old race. Lawyers are a great and a good race, and the disgrace and shame which has been attached to the profession, has been brought upon it by those who intrude themselves into it without qualification, who hang around its outskirts — the shysters of the law. Give us the power to organize ourselves, let us have the power of expulsion, and I will guarantee to you that the bar of Milwaukee, with the power of ex- pelling its unworthy members, would in six months be as pure as any church. But you, the people, give such a man as this the power to call himself a lawyer, in our defiance. They say that seduction must be a lengthy process, going on a long while ; there must be a great resist- ance, and a final involuntary surrender. The learned counsel quoted a passage from one of the most im- moral pieces of poetry in the English language — Don Juan — about a lady who, "Saying she would ne'er consent, consented:" feigning, denial in the act of consenting. I read that poetry a long while ago, when I knew no better. I do not studv it now, and I would 186 TRIAL PRACTICE. not like to quote it very extensively. But I recollect the history of that lady. My impression is that she was not the subject of seduction. She was a young and dashing lady, married to an old, imbecile man, who had the happiness of supporting her, but his other functions were vicariously discharged. [Laughter.] Her example will not serve in the seduction of a girl. There need be no long process. There must be some seduction, I admit. A man meets a woman, whether he speaks to her about statues or not, invites her as this girl was invited, and she, a woman of maturity, know- ing the uses of sex, deliberately yields to him without persuasion. I do not think that is seduction. It is a mutual connection — a sort of Eamsbeck mar- riage. But the statute says that if a man promises to marry a girl, and under that promise knows her per- son, it is seduction. There need be no resistance. The promise makes it seduction. So if a married man seduce a woman ; that cannot be under promise of marriage, if she knows he is married, as this girl knew of the defendant. There must be other means. How much, how little, is not important. Any adequate means is enough. I make this remark to the court, also. And these means are to be estimated by the age of the woman, her experience, knowledge of the world, and comprehension of what she is about ; and somewhat by the relative age and position of the , seducer. He sits alone by that child in his parlor, and he kisses her. The clammy kiss of lust is upon her young mouth. The burning touch of lust is upon her person, and he wonders what sort of a statue she would make. THE BOOTH SEDUCTION CASE. * 187 He tells her Mr. Lund pays girls much money for their statues made from the person, and he wonders what sort of a statue she would make. Gentlemen, you can fill up the gap of knowledge. You can re- member what the child has forgotten ; all the insensi- ble approaches of lust, coming with the air of author- ity from the protecting hand of the man who stood as her guardian and father, the man who in the eye of the law stood in Joco parentis over her. He was charged with a father's duty and protection, and with that authority, approach after approach of lust can be well imagined. The poor girl tells of the kiss, and the vile suggestion of the statue. You can imagine the fiery touch of his lustful kiss, and the desecrations of the sanctity of her person. You can imagine the intox- ication of mind, the sly but burning manipulations of body. She cannot remember them, because she did not comprehend them ; she was bewildered by them. But she was not there an hour and a half for nothing but a solitary kiss, and a lewd suggestion about her statue. She was to be invited to his bed, and he is not the man to lose his time when the opportunity was offered. He is enterprising and diligent in all things. He was diligent in seduction. What did he bring her there for? Why did he hide her in that back parlor from her mother, from the other children, from the servant girl, but to seduce her to his bed? We have the vile purpose — not denied here. No one has the gravity to deny the motive. He had her there to seduce her, and do you think he wasted his time? Do you think he spent those hours in reading or smoking, or doing nothing? No, whatever work he is at, he is 188 TRIAL PRACTICE. ■diligent to accomplish it. In seduction, as in every- thing else, he is a good worker. He never idled away hour after hour. He made good use of it. He had a girl premature of body, but immature of mind, four- teen years of age. What did she do? In the lan- guage of the English authority, she yielded ** a pas- sive non-resistance — not an active consent." With her seduction could go no farther. Is there no seduction in these relations in that posi- tion? I know that counsel, Mr. Palmer, and I know his associate well. I know that if these facts had hap- pened to a child of either of them — just the facts as they admit them, this indictment never would have been found. If either Mr. Palmer's or Mr. Carpen- ter's child, of the same age and under the same cir- cumstances, had returned home to tell this story, no indictment would have been found. There might afterwards have been found an indictment for murder! [Sensation.] And there is that mark of deeper crime — I may comment upon it — the taking of the poor, humble, powerless man's daughter. Why not take the daugh- ter of his equal, of a man who dared to act as a father should act — face the community with the guilt of blood upon his hands (to Mr. Palmer), as you would have done? I will go further. There sits the judge of the law, and there the executive of the law — they would have done it. I do not believe you can find ten men in this room who would not have done it just on that knowledge. Call it seduction, or not seduction. If that man had failed in his purpose, if he had merely invited my child or yours there, merely kissed her THE BOOTH SEDUCTION CASE. 18£> with the kiss of lust, merely suggested that damned model-artist practice to her, and the child had left the house, the man would have died ! By heaven, the man would have been shot! If the child had come unspotted, save by the insult, there are few honest and hot-blooded men who would not have shot him for the attempt that failed. You may call that murder, if you will. It never yet was pun- ished for murder. The lad who shot the seducer of his sister on the boat at Philadelphia, was as clearly guilty of legal murder as any man ever was, but no jury conricted him, though I believe he made no defense. I speak of that not to exaggerate what was done, but to show to every man's comprehension that it was seduction — to yours, to mine, to the judge's, to every man's. It was seduction at that age, in those relations. With all the gaps in the fading memory of that poor child, so outraged, we can see it is seduction, seduction beyond doubt. That there was more of it, we have none of us any doubt. There was more Ave all know. But without asking the jury to till up any vacancies in the evidence, there was seduction enough. The invocation was made to you by the learned counsel, Mr. Carpenter, to remember that your verdict of guilty here, would not merely damn the character of this defendant, damn his reputation, but in some measure, by reflection, injure the reputation, and de- stroy the happiness of his family. Gentlemen, it is the misfortune of innocence that jruilt is almost never incurred that some part of the blow does not fall heavily upon the innocent. Every man who commits 190 TRIAL PRACTICE. a crime has some wife, some child, some sister, some mother, some kin, some dependant, innocent, but ruined and broken-hearted in the punishment of of his guilt. That is not our fault. We prosecute guilt, not innocence. If innocence suffer, we all have sympathy for it. But if the reflected suffering of in- nocence is to acquit this defendant, it is to acquit every defendant indicted on a criminal charge. For there is no man so outcast, so removed from the heart of society, that some faithful, true woman's heart will not bleed at his misfortune ; that some child will not be left fatherless, worse than fatherless, with an indelible stigma upon the father's name. But, gentle- men, I think in this case you are relieved from even that difficulty. It is immaterial for the character of this accused, whether you convict or not. The disclo- sures of this trial, his own defense, his own confession, fix his moral guilt as long- as his name lasts. And whoever remembers his name hereafter, remembers the moral guilt of this tragedy forever. His guilty name goes with him forever, be your verdict what it may. The first counsel pleaded hard to you to find a doubt in this case, and acquit upon that doubt. This court will tell you, and I will tell you, in broad language, it is the duty of every one coming as prosecutor, to tell the jury that, if they have a reasonable doubt of the defendant's guilt, they must acquit. We have no ver- dict of "not proven," as in the Scotch law. You cannot say that he is not proved guilty. You are to find him guilty or not guilty. In England they speak of adopting the Scotch verdicts of guilty, or not THE BOOTH SEDUCTION" CASE. 191 proven, or not guilty; but the verdict of not proven is not in our law. If you have a reasonable doubt, a rational doubt, on your minds, of his guilt, you are to find him not guilty. I invoke you, not in the name of the father, my client in the civil suit, but in the name of the State, my client in this suit, before you do that, pause well and solemnly. Give back to society the child it has lost — the virtuous child that would have been a virtu- ous woman. Give back to the world one of the gems of society, a pure and virtuous virgin, to become in time a pure and virtuous matron. Restore to mankind unsullied one of the foundations of civilization — a pure and true and spotless woman. If you give back a polluted child, a deflowered virgin, I claim your ver- dict against the ijruilt that made her so. " And the Lord sent Nathan unto David. And he came unto him and said unto him. There were two men in one city; the one rich, and the other poor. The rich had exceeding many flocks and herds ; but the poor man had nothing, save one little ewe lamb which he had bought and nourished up ; and it grew up to- gether with him, and with his children; it did eat of his own meat, and drank of his own cup, and lav in his bosom, and was unto him as a daughter. " And there came a traveler unto the rich man, and he spared to take of his own flock, and of his own herd, to dress for the wayfaring man that was come unto him ; but took the poor man's lamb and dressed it for the man that was come to him. "And David's anger was greatly kindled against the man: and he said to Nathan, as the Lord liveth, 192 TRIAL PRACTICE. the man that hath done this thing shall surely die. And he shall restore the lamb four-fold, because he did this thing, and because he had no pity. And Nathan said to David," (Mr. Ryan pointed solemnly to the accused), " Thou art the man." RIGHTS AND REMEDIES. 193 CHAPTER XVIII. RIGHTS AND REMEDIES. The following condensed summary of common rights and remedies cannot fail to be useful to students and laymen, if not to trial lawyers, who can see at a glance the essentials of each division. The separate divisions are all from standard text books abbreviated : An action is the demand of a right by process of law, divided into : Real actions, such as pertain to the recovery of real estate. Personal, such as pertain to the recovery of goods and chattel. Mixed, where recovery of real property and also goods and chattels arc demanded. MIXED AND REAL ACTIONS ARE : Ejectment, for possession of land and damages. Right of dower, for widow's right in property. PERSONAL ACTIONS ARE : Debt, where a party sues for the recovery of a liquidated amount due him, as on a judgment rendered elsewhere. (13) 194 TRIAL PRACTICE. Covenant, where a party claims damages for a breach of covenant. Detinue, where a party claims specific recovery of goods detained, as where a person promises in a note to pay the bearer so many bushels of wheat, oats, etc., and fails to perform. Trespass, where party claims damages for injuries committed with violence. Trespass on the case, where party claims damages for injuries which are not direct, but consequential ; broad enough for slander, libel and trespass. Trover, where one wrongfully converts the goods of another. Replevin, to recover goods wrongfully detained from their owner or person lawfully entitled to possession. Evidence required, is to set up the facts and prove them. — Blackstone. ASSUMPSIT. Founded on undertaking of defendant, not under seal. The averment is that he undertook and prom- ised to pay, etc., the money lent, work done, goods furnished, or do the act named. If there is a special contract still open, and of same subject-matter as common counts, and plaintiff fail on contract, he may recover on the other. Three rules govern assumpsit : 1. So long as the contract continues unfinished, plain- tiff must declare specially, but when executed on his part, and nothing but payment remains, he may de- clare generally on common counts. RIGHTS AND REMEDIES. 195 2. "When contract partly performed is abandoned by consent, plaintiff may sue on common counts for amount done under special contract. 3. Where what has been done was under special con- tract, but no time fixed, and yet benefited defendant, and was accepted by him, even if plaintiff has not fully performed, he can recover for the worth and ■value done, not exceeding contract price, less any dam- age for failure to do all. The plea in assumpsit is the general issue, and puts plaintiff to his proof of all material matters — time, place, debt, or implied promise. Defendant may plead in abatement, or prove payment, or misnomer, and may use a set-off, if he has one, but that is better saved for a separate cross suit. — Kent. BILLS AXD NOTES. A note is a written promise to pay a tixed sum at a time named to the person or order designated, signed by the person contracting, and generally by endorsers. They are presumed to be founded on a valid consider- ation. The burden is on defendant to show other- wise. Under general statutes, notes not denied under oath prove themselves. "When sued upon, declaration must be special and the note offered in evidence. Generally, the signature and amount due are proven. RILLS OF GOODS, Over which many suits arise should be itemized. •Claims for damaged goods not made within ten days 196 TRIAL PRACTICE. after delivery, lire not valid. Common counts are suf- ficient for declaration, and general issue for plea. It is best to have bills admitted, which an adroit attorney will do before trial, and before suit begins, if possible. Protested notes to hold endorsers should be done by a bank notary. They know that three full days of grace are allowed, and notice to bo good must not be mailed nor served before the end of the third bank day. — Parsons on Bills and Notes. CONTRACTS. A contract is an agreement between two or more competent persons for a sufficient consideration to do or not to do a given thing. It is express, if put in express words, and implied, if something; is done without a bargain when the law implies one. The essentials are : Sufficient age and capacity of parties; freedom of will, and a free exercise of that will. Each must possess faculties to understand and comprehend their acts. The parties must be compe- tent. The contract must be lawful. The considera- tion must be good or valuable. There must be a full assent, all minds meeting at once on the same thing. Once made in writing, parties are concluded by it. But surrounding circumstances may be shown. La- tent ambiguity may be explained. Experts may tes- tify as to terms in trades and scientific matters. Con- tracts to pay the debt of another, to sell land, to lease land over a year, to sell goods over fifty dollars in value — unless delivered — should be in writing, signed RIGHTS AND REMEDIES. 107 and delivered, otherwise void under statute of frauds. DAMAGES Are given as compensation to plaintiff for any injury caused by defendant or his servant. The damages should make whole the injured party, so far as can be, in money. They must be the result of the injury, and such as flow naturally from it. They must arise without fault of plaintiff. If from a railroad injury, he must, on crossing the track, " look and listen," -and guard himself from accident. The least contribu- tory negligence may excuse defendant. But where de- fendant used old and defective boilers and dangerous machinery, he was held liable. The general damages arise from breach of civil contracts, building, jobbing, etc., also from breach of promise; from seduction-, from wounds and bruises in forced quarrels, from run- away teams, collisions, and the like. The greatest money damages come from injuries to passengers by rail. In an elevated railway case in New York $30,- 000 was recovered; $45,000 was collected from the Grand Trunk Road by Field, Lighter & Co.'s sales- man. Policies of tire insurance are fruitful source- of suits, and in general great care and labor are used in showing plaintiff without fault, and defendant negli- gent. No class of law practice pays as well generally as these accident cases. EJECTMENT AND EVIDENCE. Plaintiff must show that he owned the legal title to the estate at the time of making and rilimr the declar- 198 TRIAL PRACTICE. atioii. That he hud the right of possession, while de- fendant was in possession. The party is not permitted to dispute the title of whom he obtained. The strength of plaintiff's title, and not weakness of de- fense, is the issue. EVIDENCE. Faith in human testimony is sanctioned by experi- ence. It is all the means by which an alleged matter is proved or denied. Four rules govern the production of evidence : 1. It must correspond with the allegations and be' confined to the point in issue. 2. The substance only need be proved. 3. The best evidence of which the case in its nature is susceptible, must be produced. 4. The burden of proof is upon the party holding the affirmative. It is conclusive, if certain — as by statute of limi- tations. It is uncertain, when the conclusion does not necessarily follow. It is circumstantial, w r here it is inferred from facts satisfactorily proved. It is posi- tive, when eye-witnesses are uncontradicted, or de- fendant confesses. It is hearsay, when one to be charged has admitted facts to be established. Matters of public interest, statutes, ancient possessions, dying declarations, admissions against the interest of party making them, and any admissions brought out in his presence and assented to by him, are admissible. In criminal cases, admissions alone are not of late held sufficient without searching inquiry as to their RIGHTS AND REMEDIES. 199 good motive. Admissions acted upon are sufficient. Acts done that would warrant a presumption of assent are admissible. The real question in trials of fact is not whether it is possible that the testimony may be false, but whether there is sufficient probability of its truth shown by competent testimony as to remove rea- sonable doubts ! Oral evidence cannot replace written when an instru- ment can be produced in writing where it was once committed to paper. But lost and destroyed contracts may be proven by parol. So, such as have been left with the other party, who suppresses them after no- tice to produce, etc. All material writing should be produced if known to exist. Facts showing that writ- ings were made and witnessed can be shown by parol. Admissions that the law does not allow denied, are all estoppel. — Greenleaf. FRAUD Is a trick by which one is drawn to do acts to his prejudice. It avoids all contracts. It is not to be presumed. It must be proven with great certainty. The burden is on the one who charges it. It is always a question of fact for a jury. Suspicions are not evi- dences of fraud. It must be as to material matters and effect the essence of the contract. If it is such that had it not been practiced the contract would not have been made, then it is material. It must work an actual injury. The injured party must have relied upon it. As in case of false pre- tenses, it is not enough that the statement and pre- 200 TRIAL PRACTICE. tenses were false ; they must have been the means of deceiving the injured party — not one means, but the means. Party defrauded must act at once, and not sleep on his rights. He must return property if cheated in a trade. Deed back, if deceived in land. Set his op- ponent where he found him at earliest opportunity. No man shall found a right upon his own wrong. Equity usually steps in, and does that which the law fails to do in matters of fraud. GENERAL AGENCY. An agent is one who is authorized to act for another. It is authority that he is employed by another, and does acts which are ratified. If limited, one must act within the scope of his authority. General agents will bind their principal so long as they have general authority, but not in matters of deeding property without express authority that may be recorded. The main rule is that he who acts by his agent acts by him- self for that part only where he was employed. He should disclose the name of his principal ; that he acted in his behalf ; the extent of his authority. The act of partners are frequently such as principal and agent. So, it becomes the duty of a firm at once upon dissolution to publish to the world generally, and send special notices to all who have actually dealt with their firm, of the change, else they are each and all holden for new debts contracted, as each partner is deemed agent for the rest in the line of their copart- nership. RIGHTS AND REMEDIES. 201 HOMICIDE. The simple killing of a human being — justifiable when done by an officer in discharge of his duty, or where one resists him when arrested. Excusable when one, in a lawful act, kills another by accident or in self-defense. Felonious if done with evil intent; manslaughter if killing is in a quarrel, in sudden heat of passion ; murder if done with malice or deliberate purpose to kill, other than in self-defense or defense of one's helpless wife, child, father, mother, or prevent a strong man from killing a weak child or woman. In manslaughter, the fatal stroke must be given before passions could cool, else it it is murder. Proof of great provocation must be shown to excuse the use of deadly weapons. In trials of either of these offenses, death must first be established, and how it resulted, then who could have caused it, and if sufficient motive, malice may be implied, as if one intending to kill one person actually kills another, this would be murder. In self-defense the attacked may use his judgment ; he alone is judge. People v. Hurd. The proof of deliberate murder is generally difficult ; of manslaugher quite easy ; of killing in self-defense generally still more easy. In all high crimes there is more concealment. Poisoning is the worst kind of murder, and very secretly accomplished. FORGERY. Forgery is often committed by an alleged color of authority. The unlawful making or uttering a 202 TRIAL PRACTICE. writing, to the prejudice of another, must be shown to be unlawful. In larceny, the value, ownership and and taking by force from another, usually covers all questions, while in murder it may be required to trace motives for a year or more to. find a malicious cause. LIBEL AND SLANDER. A prima facie case of slander or libel is simple. The latter is ridiculing by picture, writing or printing, made with intent to injure another, and if false and does in- jure another, even if copied from another paper, it is libel. So slander, if false, puts defendant upon his proof of excuse. These cases are simple for plaintiff and difficult for defendant. Perjury is difficult to prove. It needs two witnesses, that some one has been perjured by the false swearing in a judicial pro- ceeding, on a material matter. The essentials of proof in rape is forcible carnal knowledge of a chaste person. RORRERY. Eobbery must show forcible taking of another's property, with intent to convert it ; and goods must be proven actually in the robber's possession, and actually taken from the person of the other by superior strength, or putting in fear, so that owner could not safely retain them. To part with them lawfully may change the action to trover.- These principles are from Bishop, who lays down the general rules by which indictments are framed, as follows : It must allege what in Uxav is essential to the RIGHTS AND REMEDIES. 2()o punishment sought to be inflicted ; must inform of time, place and offense ; how committed, and extent of the crime ; must refer to statute as violated ; statute must be in force, etc. If offense charged is " from a dwelling house," or " from a store in the day time," the proof must corre- spond in each essential part. Acts are measured by intent or result. The law does not concern itself with trifles. Where "breaking" is charged, opening a door is sufficient. Every man is responsible for what follows from his unlawful acts ; but no action can be criminal where it is impossible for one to do otherwise. What a wife does of a criminal nature with her hus- band, is presumed to be directed by him. INDORSEMENT. An indorser makes these conditions : That all names before his are genuine. That the note or bill shall be paid when due ; that if not, he will personally pay it. Delivery without indorsement is insufficient, if payable to order. The payee may stop negotiability of a special indorsement. The release of prior indorser dis- charges all subsequent indorsers. Great care must be taken in protests ; on them delicate legal questions arise, too numerous for this section. LIQUIDATED. Where damages are uncertain, and where settle- ments are presumed, where some valid consideration has passed and full receipts are given, the law will. 204 TRIAL PRACTICE. favor the settlements, as it is a well known maxim, ■" there must be an end of litigation." If one hires for a fixed period, and serves only part, and is prevented, he can recover for whole period, pro- vided he was unable to secure employment. Warranty of goods is implied, and damages arise if not as rep- resented. MISCELLANEOUS. A father may have custody of a child in preference to any one else, except : If he be cruel, and not a com- petent person to care for a child ; if the mother be living, and desires the custody of the child of tender years ; if the father neglects to support the child. In these cases the court or probate judge may bind out the child to a suitable person who guarantees to sup- port it. It is not larceny to take ones own property where he may find it.. A husband cannot sell his wife's goods. In many States he cannot sell his own real property without her assent, and she can sell all of her property in his absence. The wife is agent for her husband. Principal and agent extends to all of her purchases of clothing, furniture, household goods and natural living expenses, and there is no power but .by separation and notice to prevent her making contracts binding on her husband for her neces- saries. So also a child .can bind its father for usual wearing apparel and living expenses, so long as it remains with its parents, and is suited to his circumstances. EIGHTS AND REMEDIES. 205 PARTNERSHIP. A contract between two or more persons to combine skill and capital for a lawful purpose, the losses and profits of which shall be shared by each in certain pro- portions, is a partnership. It must be a common in- terest in stock of company. It must be a personal responsibility for the firm debts — a business marriage. There must be community of profits ; each member liable to the whole debt without reference to their pri- vate contracts. Partners are joint tenants and general agents of each other. If money be invested in com- pany lands, they belong in common to all. If one buy firm lands with firm money, taking title in himself, he is the legal trustee of the title, but not the actual owner. The act of each partner binds all within the scope of their business. Partners who steal from each other do not commit larceny as known in law — they being part owners, cannot steal from their own. Partners may by acts, signs and dealings, be held out as such, and bound after dissolution. One may dissolve any moment, and be liable in damages for breach of contract. They may be dissolved by death of either partner, by bankruptcy, insanity, limitation or judicial decree. If they have made debts, each is liable till all is paid. — 3 Kent. REAL ACTIONS. An action will arise for permanent improvement, made in o;ood faith by a farmer in the wav of clearinor 206 TRIAL PRACTICE. and of a householder in buildings that can be removed without injury to premises, if built in the line of busi- ness, like engines, boilers and temporary buildings, connected with mills and bakerys. But in general, one must improve premises at his own peril. Where store counters can be taken without injury, or partitions re- moved without damage to premises, they are usually taken. Crops sown in peace, are to be reaped in peace. Growing grain, unless specified, goes with the farm, but cut timber, lumber, rails not in fence, wheat in the stack and detached property, goes as personalty. The principal real actions are trespass and ejectment, -each treated of separately. PERSONAL PROPERTY. Right to property originally came from occupancy. The possessor can give no better title than he has. The descent and transfer of property are creatures of law, and not natural rights ; but the right of children can take property in preference to strangers, is founded on the law of nature. Every person must so use his prop- erty as not to injure his neighbor. The term chattels covers all kinds of personal property. Personal property is such as bonds, money, furni- ture, fixtures, grain, goods, tools, implements, etc., and passes title generally by delivery. It may be acquired by purchase, descent, gift, or by act of law ; usually it is from purchase, where the buyer has full and abso- lute power to use, sell, burn or exchange it at pleasure, provided he has the absolute title to it. All parol gifts (those made without writing) pass title only on de- RIGHTS AND REMEDIES. 207 livery, and even then they are presumed to be void if made to strangers without consideration. It is a good consideration for relatives to give valuables to each other, and such as near kinsmen. A valuable consid- eration is money or other property in exchange. SALES. A sale or "contract to transfer property from one to another, for a valuable consideration," requires com- petent parties, subject matter consideration. The thing sold must exist ; must be identified and capable of delivery. The seller must have control and right to sell it, and by the sale he warrants the title. Each party is bound to state to the other material facts that he knows the other to be ignorant of, and out of his observation. The seller may permit the buyer to cheat himself, but must in no way aid in the cheating. In sales at auction, any bid may be rejected before the hammer falls. The auctioneer has a lien on sale money for his fees. STOPPAGE IN TRANSITU. The seller may recall goods at any time before final delivery, if buyer becomes insolvent, or if fraud has been committed, especially if goods are bought after failure for purposes of fraud. So buyers may notify sellers of insolvency, and refuse to accept their goods ; but once freely delivered, the sale cannot be rescinded ; it is final, and each has his separate rights thereafter, the purchaser his goods, the seller his credit. 208 TRIAL PRACTICE. TENDER. To support the plea of tender, one must show the precise sum offered and shown unlawful money — not check or draft. The money itself may tempt one to accept it. He must also show that he has since been ever ready and willing to pay the sum he claims to be owing plaintiff. It must be produced on demand, and once in sight without demand. With these requisites, all costs made after the tender are payable by plain- tiff, he having supposed to be in law needlessly in- curred. TROVER. For the wrongful conversion of personal property, goods, chattels or money ; must be shown that plaintiff owned it ; that it came to possession of defendant ; that he converted it. An agent may maintain trover. Absolute control is a right to maintain this action. Selling, destroying and concealing is appropriating in the meaning of the statute. A count for trover is usually added to trespass on the case. AVILLS. The law of actual residence governs the location of probating wills. But they may be admitted where one dies in a foreign state, and has property therein. In regard to wills of real property, it is clear that the law of place where it is situated, is where the will must be generally probated, or copies of the will filed RIGHTS AND REMEDIES. 209 to perfect the chain of title. Usually wills are pro- bated where the decedent resided. A prima facie case is made by showing the actual signature ; the capacity to comprehend the business in which he was engaged ; the witnesses ; only one need be sworn. Testator's mark is sufficient if unable to sign. He may revoke it by subsequent wills ; he may keep it or file with probate court ; he can always de- stroy it ; his marriage and subsequent issue will change its validity. Wills should be simple, direct, and clearly convey the estate, naming at least each heir, but one can dis- pose of all his property save the wife's dower interest, even if it deprives some of his bounty. He is in control of it, and may select the objects of his bequests with- out interference. Two witnesses are necessary. Certain words like, I give, grant, devise and bequeath, should be remembered, and a plain business like statement will usually do the disposing of the property best. If made by threats, duress, undue flattery, over per- suasion, not in sound mind, under undue influence, it may be set aside by a jury. Any means that destroys a free agencw, is contrary to the spirit of the law gov- erning: the validity of wills. (14) 210 TRIAL PRACTICE. CHAPTER XIX. ORATORS AND ORATORY, The intense aversion that all good lawyers have for affectation, is, in a measnre, a hinderance to the study of oratory. Many fear that they may acquire a stilted habit of delivery. But surprising as it may sound, the one thing most neglected in law schools, is the subject of delivery, or the art of speaking in a tone and man- ner easily understood, by a court and jury. The high pitched key of loud talkers, and inaudible voices of others, fall on the ear like the prattle of the street vendor, and never leave the listener room to comprehend the subject, if he cared to follow the reasoner. Men are not moved and converted by such repulsive utterances. The music of modulation is a great essential in speaking, as men never quarrel in the hearing of sweet sounds, so with pleasing speeches, they steal in on the senses, and capture the judgment. They compel attention. They win juries, command verdicts, and secure large retainers. Such is the power of eloquent speech, that trained and modulated, with some apt words to utter, it will quell a mob, nerve an army, rouse an audience, move an assemblage, and often change the destiny of nations. ORATORS AND ORATORY. 211 The same words spoken without a forcible and apt de- livery, would be lost on the listener, or fall, as Gough . puts it, " like stones in the mud, to sink and disappear forever." No man ever believed more in the power of well chosen sentences, and their right delivery, than Web- ster, the greatest model of American advocates. He was often absorbed in the stud}' of forcible sayings for •days before his greatest speeches, and never made an important effort unprepared. He would commit to memory, and carry illustrations, ten and fifteen years before using them. He was indebted to Dry den for his " raising mortals to the skies, and drawing angels •down." He owed much to Scott for his " sea of up- turned faces;" much to the Scriptures for his sub- limity, and many strong sentences to Shakespeare, but he owed most of all to his wonderful delivery! In reply to Hayne he drew on all his resources. At the dedication of Bunker Hill Monument, the crowd pressed hard upon thq speaker's platform. The police were powerless to restrain them. In vain the master of ceremonies urged them to be quiet. It was a supreme moment just before Mr. Webster was to be introduced as the orator. All were anxious to hear his earliest utterances, but confusion became intense. The chairman begged ]yf r . Webster to sav a few words to restore order. The great man came forward in his majestic way, and said : "Gentlemen, you must fall back !" "Mr. Webster, it is impossible !" "It is im- possible !" shouted many voices in unison, liaising Jhis arm and his voice, as his burning eyes flashed over ihe excited multitude before him,, he said with Wel>- 212 TRIAL PRACTICE. sterian emphasis : " Gentlemen, nothing is impossible to Americam at Bunker Hill! " A sjreat shout ransr through the audience as they surged back like the waves of the ocean. This was what Webster would call something higher than eloquence — action, noble, sublime, God-like action. Carlyle says : "Let him who would be moved to convince others, be first moved to convince himself," and adds : " The race of life has become intense ; the runners are treading on each other's heels ; woe be to him who stops to tie his shoestrings." While we may abhor the mimic style of elocution) as sometimes taught by ranting readers of worn out themes, a well delivered speech, or play, is a rare pleasure ; and there is no greater luxury on earth, than that experienced by accomplished singers, speakers and actors before an appreciative audience. To acquire that ease and pleasant delivery, and know its value, is a work of time and patience ; but I prefer to speak of it through men of larger experience, whose apt words are quoted, instead of personal counsel. These masters of their science speak with unquestioned authority. It goes without saying that American statesmen, notably the late President Garfield, first ac- quired eminence by their oratory. Cicero says: " Delivery has the sole and supreme power of oratory. Without it a speaker of the greatest mental power cannot be held in any esteem, while with it, one of moderate ability may surpass those of the greatest talent." Quintillion says : " Indifferent dis- course well delivered, is better received by a popular audience, than a good discourse badly delivered. It is ORATORS AND ORATORY. 213 not so important what our thoughts are, as in what manner they are delivered, since those whom we address are moved only as they hear." Humboldt says : " The essence of language lies in the living utter- ance. It is only by the spoken word that the speaker breathe- his soul into the souls of his hearers." Sar- gent S. Prentiss, of whom S. S. Cox says : " No man, south or north, ever left a liner reputation for elo- quence," in a letter to his brother, dated Yicksburg, August 9, 1833, writes: " Let me particularly recom- mend to you to cultivate as much as possible your powers of elocution. This attainment is to every man of the utmost importance. It is no less than the power, of using his other attainments, for what advantage is information unless one is. allowed to convey it, and show the world one possesses it. Indeed, my observation of mankind has convinced me that success in life de- pends not upon the quantity of knowledge a man pos- sesses, :i- upon the skill and facility with which he is able to bring it to bear upon the affairs in which he may be engaged. " This is particularly true with great men. Their greatness consists less in the extent of their knowl- edge, than in the way in which they use it. There arc- hundreds, perhaps thousands, of men in the United State- who exceed Henry Clay in' information on all subjects, but his superiority consists in the power and adroitness with which lie uses his information. " I would again press, before any other acquisition, necessity of training. What young man, having merely a fondness for painting, and a corresponding desire to paint, would dare to take up brush and palette, and 214 TRIAL PRACTICE. expect his first ignorant daubs to be accepted by the Academy ? What young woman without training would dare to sing before a public audience of cultivated peo- ple? What merely sub-architect would expect to have his random plans accepted, even for a State capitol? Every one understands the necessity of thorough tech- nical education in these arts ; but when you come to elocution, the highest of all arts, there is a general im- pression that the mere desire to do something indicates the power to do it. Art in elocution is the purest appropriate expression of thought, therefore no man who desires to use his mind can afford to dispense with •the knowledge of its simplest and most apparent laws. And there can be no great success without severe tech- nical study." Professor Win. Matthews says: "Let men once learn and deeply feel that no man ever has been, or ever can be, a true orator without a long and severe apprenticeship to the art ; that it not only demands- constant, daily practice in speaking and reading, but a sedulous culture of the memory, the judgment, and the fancy — a ceaseless storing of the cells of the brain with the treasures of literature, history, and science for its use, and they will shrink from haranguing their fellow-men, except after a careful training and the most conscientious preparation." Henry Ward Beecher says : " While progress has- been made, and is making, in the training of men for public speaking, I think I might say that relative to the exertions that are put forth in other departments of education, this subject is behind all others. Train- ing in this department is the great want of our day, for ORATORS AND ORATORY. 215 we are living in a land whose genius, whose history, whose institutions, whose people, demand oratory. I advocate, therefore, in its full extent, and for every reason of humanity, of patriotism, and of religion, a more thorough culture of oratory. "Now in regard to the training of the orator, it should be a part and parcel of the school. The first work is to teach a man's body to serve his soul. So long as men are in the body they need the body ; and one of the very first steps in oratory is that which trains the body to be the welcome and glad servant of the soul. Grace, posture, force of manner, the train- ing of the eye that it may look at men, and pierce them, and smile upon them, and bring summer to them, and call down storms and winter upon them ; the development of the hand, that it may wield the scep- ter or beckon with sweet persuasion ; these themes belong to man. And, among other things, the voice — perhaps the most important of all, and the least cul- tured. " How many men are there who can speak from day to day, one hour, two hours, three hours, without exhaustion and without hoarseness? But it is in the power of the vocal organs, and of the ordinary vocal organs, to do this. What multitudes of men there are who weary themselves out because they put their voice on a hard run at the top of its compass, and there is no relief to them, and none unfortunately to the audi- ence. But the voice is like an orchestra. It ranges high up and can shriek betimes like the scream of an eagle ; or it is low as the lion's tone ; and at every in- termediate point is some peculiar quality. It has in it 216 TRIAL PRACTICE.- the mother's whisper and the father's command. It has in it warning and alarm. It has in it sweetness. It is full of mirth and full of gayety. It glitters, though it is not seen with all its sparkling fancies. It ranges high, intermediate, or low, in obedience to the will, unconscious to him who uses it ; and men listen through the long hour wondering that it is so short, and quite unaware that they have been bewitched out of their weariness by the charm of a voice, not artifi- cial, but by assiduous training made to be his second nature. Such a voice answers to the soul, and it is its beating. "'But,' it is said, 'does not the voice come by nature?' Yes; but is there anything that 'comes by nature ' that stays as it comes if it is worthily handled? There is no one thing in man that he has in perfection till he has it by culture. We know that in respect to everything but the voice. Is not the ear trained to hearing? Is not the eye trained to seeing? Is a man because he has learned a trade, and was not born with it, less a man? Is the school of human training to be disdained when by it we are rendered more useful to our fellow-men? " But it is said that this culture is artificial ; that it is simply ornamentation. Ah ! that is not because there has been so much of it, but because there has been so little of it. If a man were to begin, as he should, early : or if, beginning late, he were to address himself assiduously to it, then the graces of speech, the graces of oratory, would be to him what all learn- ing must be before it is perfect, namely — spontane- ous. If he were to be trained earlier, then his training ORATORS AND ORATORY. 217 would not be called the science of ostentation or act- ing. Not until human nature is other than it is will the function of the living voice, the greatest force on earth among men, cease." It sounds so old, and is so true, to say of the first of orators that he spent years in severe training ; that he endured torture, and regarded the art as a pleasant task, and a valuable science, and succeeded in over- coming deformity of voice and body, and won at last the crown of gold and lasting fame as a reward for his energy. It sounds so very strange to speak of Clay as an ardent follower of this Grecian master, and Mar- shall as another, and Prentiss as another, each almost their master's equal, but their brilliancy as orators re- warded their years of training. And to-day, in the presence of Booth, who brings all nations at his feet, by purity of voice and grace of action, there arc men enough to ridicule attempts to cultivate the finer qual- ities of delivery. Men are not wanting who see in the scholarly lan- guage and majestic delivery of Conkling — one with mind and body most wonderfully developed' — what they please to term too much of the imperial for an Amer- ican. But what if it be imperial, and is really finished ? Is not the body a part of the Creator's stamp, and the soul within it simply living up to its possibilities? Men are not at all of an equal mould. They arc not even created equal. Some are weak, and others strong ; some are large, and others little ; some are students, and others idlers ; some look over the stars to other worlds, and others see but a single hamlet and that imperfectly. 218 TRIAL PRACTICE. That an orator like Butler should employ the strong and logical, while one like Cox reasons through his wit, and another like Matthews commands men by his dignity and eloquence, and many more possess but a tithe of their acquirements and succeed, is only an argument by contrast, for Butler, Cox and Matthews, each employ their best forces, and forces not untrained or neglected. I sometimes wish that I could paint the real picture of a trained orator like Beach, as I heard him in the Brinkley case ; a likeness of his flashing eye, his commanding form, and features all ablaze with elo- quent looks, and voice of wonderful melody ; or tell of Choate's swift flights of fancy; of Everett's rhythmical sentences ; of Matthews in his strongest power, or Storrs in some closing appeal ; where the form surges and trembles with thoughts too fast for utterance, but these men must be seen to be appreci- ated, and heard to be understood. In a country where so much is demanded of ora- tors, where place and power often comes to the elo- quent and gifted, enough is left for the highest order of oratory and the finest finished speeches ; no one need despair of a lack of present opportunity, but all should be ready to embrace their opportunity when it offers, for " There is a tide in the affairs of men which taken at the flood leads on to fortune." MISTAKEN IDENTITY. 2li>' CHAPTER XX. MISTAKEN IDENTITY. Cases of mistaken identity are by no means rare in- large cities, and many are reported every year. Strange coincidences, unhappy results, often follow in the heat of some startling tragedy or robbery, that cooler judg- ment would never believe possible. The facts in the following romantic cases are abso- lutely vouched for, yet seem almost incredible. One of the latest of the strange cases is exceedingly in- structive on circumstantial evidence, and the last one equally strong on mistaken identity. THE AKEBTON CASE Is that of an English merchant who, in 1867, was stabbed on a busy street in broad daylight, in the pres- ence of twenty witnesses, and the young offender escaped without arrest. The best detective talent of London was employed, and the supposed murderer captured in Belgium and brought to London for trial. The crown was ably represented, and only a poor barrister assigned for the defense. '220 TRIAL PRACTICE. Great interest was manifested at the trial, which developed the*fact that Mr. Pierson, the merchant, had discharged Lewis Akerton a few weeks before the kill- ing, and at the time the clerk had said: " You will one day regret this injustice." Witness after witness was sworn to the question of killing, and the identity of the accused, and the crown rested with great confidence, when defendant's counsel requested the court to allow the jury to retire with the crown counsel, himself and the court, under guard, to the judge's private room, which request was granted. Standing in the middle of the room was a com- plete counterpart of the prisoner. He was of the same height, build, hair, eyes, features and complexion of Akerton. The closest scrutiny of the two men re- vealed no points of difference in face or form. The jury gazed from the prisoner to his double in bewilder- ment. No one spoke for several moments ; then the prisoner's counsel requested that the jury retire while the two persons changed clothing in the presence of the officers, and return and confront the witnesses sep- arately, which was done, and each firmly declared his certainty of belief that the unaccused equally with the accused, was the guilty party. They were un- shaken by cross-questions. The prisoner's counsel then moved for his release on the ground of a reasonable doubt, and the court directed a verdict of " not guilty," which was received amid applause. It later transpired that the two men were twin brothers, and one was the real clerk discharged, but which one no jury could find out. .MISTAKEN IDENTITY. 221' IDENTITY OF SIGNATUKE. Ill the Probate Court of Detroit at the hearing of the Jones Will Case, April, 1883, L. M. Gates of Kal- amazoo, testified that the signature of L. M. Gates, Edmonston Otsego County, N. Y., was identical with his hand writing, except the residence stated. He was requested to write his name and above address, and the handwriting was identical with that on the will. Hon. Chas. S.May then testified to the L. M. 'Gates signature of Edmonston, X. Y., who was an entirely different person, and no relation, in fact a total stranger to Gates of Kalamazoo. The identity of names and handwriting was here the most complete ever shown in a suit at law. In the Cadet AVhittaker Case the testimony was about equally divided on his handwriting of the self- threatening letter, and in the Morey — Garfield letter many believed at first in its genuineness, so that the Pacific States were deceived by it, and voted against Garfield. In Maclean — Scripps Libel Case, tried in Superior Court of Detroit, April, 1883, a famous letter known as the Brenton letter called out the first expert talent of the nation on identity. It was charged that the Brenton letter was written by Prof. Maclean to Mrs. Joseph AVardle from Kingston to Tilsonburg, Ontario, and other letters, mailed near the same hour, written on similar paper, with similar ink, admitted to be gen- uine, were used to compare, and pronounced by two standard experts, Ames and Gaylord, of X. Y., to be identical with the Brenton letter. The various tests 222 TRIAL PRACTICE. left their opinion the same. Four other witness, long connected with banks, gave similar opinions, while an equal number (or fourteen in all) of Dr. Maclean's personal acquaintances all denied that he was the author of the Brenton letter. But they based their opinions on the style of wording and uncouth wording of the letter, as a partial reason for their conclusions. In this case certain words, like " Tilsonburg," and "Ontario," were almost absolutely identical. On covering all other words but these, Col. Atkinson staggered the best friends of the Doctor with an in- quiry of which one was the genuine. And Otto Kirchner made an equally fine comparison with the jury when he said: " Suppose'you, sir, should meet on the streets to-morrow a friend of your youth from over the ocean, from your fatherland, and he recog- nised you, and you spoke of the boyhood sports of long ago ; of the friends he knew and you knew ; of the scenes of childhood away among the green fields of Germany, and recalled the past, while you had not seen him for twenty or thirty years, and he was old and wrinkled, and gray and bent, you still saw in his eyes, and knew from his voice, and something that no one could explain, that it was the friend of your youth, would you doubt it, or need an expert to confirm his identity?" It is believed that this style of reasoning •did much to gain the $20,000 verdict for libel in pub- lishing the story of the Brenton letter and the hus- band's insanity caused by it, even after others had been deceived by it and the Canada papers had quoted it. But this case is still pending in the supreme court •on error, and may be soon entirely changed. MISTAKEN IDENTITY. 223 THE LOCKWOOD ROBBERY CASE. The following remarkable story of two strange trials is vouched for by Ex-Congressman J. H. Mc- Gowen, of Washington, D. C, and Judge John B. Shipman, of Coldwater, both of whom participated in the trials and furnish facts as a basis of this report. The case is stranger than fiction : In the Autumn of 1868, two young men entered the house of Jeremiah Lockwood, a farmer residing seven miles south of Coldwater, Michigan, and robbed it of considerable money, clothing, jewelry and goods, in broad daylight. The family were all from home. The burglars broke in by prying up a window opening into the pantry. They ransacked the bureau drawers and clothes-presses, gathering enough plunder to make two large bundles. One of them had tied about his person when he entered the house a large red scarf. This he spread upon the floor and laid broad-cloth coats, silk dresses, ladies furs, and other clothing upon it, until he had a large package. Tied at the four cor- ners and slung over his shoulder, he was in marching order. The other found a large oil-cloth satchel which was bound around the bottom and at the ends with red leather. This he filled with similar plunder, when the two left the house by the back way passing out through a skirt of woods and into one of the most frequented high-ways in the county. Thus conspicuously loaded these two rogues traveled to the north-west directly through one of the best set- tled neighborhoods in the county, until they reached 224 TRIAL PRACTICE. Batavia Center, :i distance of eight miles. More than twenty people saw them as they tramped along the highway that bright Autumn day. They met a farmer who was going to the cider mill with a load of apples. He stopped and talked with them, while they stood beside his wagon and ate apples. They chatted with a woman who was at work in her door-yard near the road. The red bundle, and the red bound satchel, made them conspicuous, and they were apparently well- scanned by all who noticed them. When they reached Batavia it was nearly dark. They took supper there at the country tavern. After supper they threw dice on the counter at the bar to determine who should pay for the drinks. They then arranged with the landlord to take them as far as Bronson station on the railroad. In payment for their supper and ride they gave their host a five dollar greenback. It had been torn and patched in a peculiar way, and had other marks upon it by which it was readily identified. At Bronson they got out of the wagon just where the highway crossed the railroad, and with their packs on their backs started west on the railroad track. The larceny was committed on Saturday. On the Monday or Tuesday following, two young men were arrested at Sturgis who were supposed to be the crim- inals. Sturgis is the second station west of Bronson. The parties arrested were brought to Coldwater and put in jail, and a number of parties who had seen the thieves as they tramped through the county on the Saturday previous, came to town and identified the MISTAKEN IDENTITY. 225 men arrested as the men whom they had seen. Among those who so identified them was the old landlord who had given them their suppers and driven them to Bronson. An examination was had before a justice, and they were bound over for trial in the Circuit Court. They loudly protested their innocence, but the testimony was so strong against them that but little attention was paid to their story. Lockwood identified the bill that was paid to the hotel man, and a score of wit- nesses, including the landlord, identified the prisoners as the young men who carried the red bundle and the red bound satchel. The prisoners were without money, and compelled to lie in jail a number of weeks before their trial came off. John W. Turner was appointed by the court to defend the prisoners. Twenty witnesses on the part of the people swore they had seen the actual thieves, and were ready to testify to the identity of the prisoners. Some time during the progress of the trial Mr. E. (r. Parsons, of counsel, whispered to the prosecuting officer, and said : "I have just been in- " formed that the old landlord has been looking at " these boys since they were brought into the court " room, and has made up his mind that he was mis- " taken when he saw them before, and that they are " not the boys who gave him that five dollar bill. -'What shall we do about it?-' The prosecutor answered : " AVe must put him on the witness stand to identify the bill at least. After asking him the neces- sary questions about the bill, we will then ask him if he did not see the prisoners immediately after their (15) 226 TRIAL PRACTICE. arrest, and if he did not then, while the transaction was fresh in his mind, identify them as the men who had taken supper at his house and whom he had driven to Bronson." The landlord was called and examined. He readily identified the patched greenback. The question was then put : " Did you not, immediately after the arrest of these prisoners, go to the jail, at the request of the sheriff, and there identify them as the men who gave you the greenback?" He answered: "Yes I did." Then he went on hurriedly to say : "I don't believe it now. I have been looking at them since I sat here and I don't believe they are the men. However, I could tell if I could see the tallest one's hand." "What about his hand," was asked. "Well," said the old man, "the boys threw dice after supper that night at my house, and the tall one laid his hand on the counter right under the lamp, and I noticed a peculiar scar on the back of it. I am sure that I could recognize that hand again anywhere." The taller of the prisoners was known as " Slimmy." Mr. Turner at once said to him: "Slimmy, walk up there and show your hand." He got up with some reluctance, and much flushed. He put his right hand upon the rail in front of the witness. " Oh, no," said the old landlord, "it was the left one." He put up his left hand. The witness, after deliberately adjusting his spectacles, took the hand up by the forefinger, turned the back of it to the light,, and exclaimed : "My God, that is the hand!" The hand was examined, and a V shaped scar found just back of the forefinger. It was, as the witness had said, a peculiar looking scar. MISTAKEN IDENTITY. 227 The welt, or edge, of the scar stood well above the surface of the hand, and was very red. The only defense of the prisoners was the unsworn statement of the prisoners themselves. Of course, they were readily convicted. The jury had scarcely left their seats before they returned with a verdict of guilty. The late Judge Bacon, of Niles, presided. The prisoners were called up for sentence. When the tall one was asked the usual question why sentenee should not be pronounced upon him, he declared that on the day of the purported larceny he was in Niles, a hun- dred miles from Lockwood's house. On being ques- tioned further by the court, he said that on that day he went out from Niles to a neighboring village ; that on his return he caught a span of runaway horses that belonged to a certain livery man in Niles, whom he named ; that after securing the horses the stage over- took him, and he rode into town with the driver. He named several prominent gentlemen of Niles, whom he said he knew, and several of whom he declared he saw on that day. Judge Bacon told him he lived in Niles, and that he would make inquiries respecting these things, and if he found that they were true, he would grant him a new trial, or ask the governor to pardon him. "But," he said, "you have had a re- markably fair trial, and have been convicted on the testimony of a large number of very respectable wit- nesses. And now I should be more inclined to believe your statement were it not for the testimony of the landlord, relating to the scar on your hand." When the question was propounded to the other prisoner, he declared that on the day of the larceny he was in 228 TRIAL PRACTICE. South Bend, Indiana. Said his occupation was ped- dling jewelry ; that he had registered on that day at the hotel, and spent the day in his ordinary business. The sentence was three years for each of the pris- oners in the State prison at Jackson. Some time after their imprisonment, Judge John B. Shipman, now a prominent lawyer at Coldwater, was employed in their behalf. He at once secured depositions on which Judge Bacon granted a new trial. They were brought back to Coldwater, and tried in May, 1869, where " Slimmy " in the presence of his counsel, the sheriff and prosecutor, made a statement substantially as follows : That his business in the prison was finishing furniture : that one day while engaged in the second story of the shop a new man brought some furniture into the room, whom he at once remembered as an old acquaintance who had always been said to resemble him (the speaker). It at once came into his mind that that was the man who had stolen Lock wood's goods. He said he took a piece of paper and wrote on it, "I am here because you stole those goods out of Lockwood's house south of Coldwater." This he placed where the man would see it when he returned to the room. When the prisoner read it, he knew at once that he was right. That evening when the pris- oners were washing for supper, he got near the new- comer, and talked with him freely — the man admitting the larceny, and giving the details as to how it was ac- complished. The attendance of this man from Jackson as a wit- ness in the case was secured. During the second trial he was placed directly behind the prisoners. The case MISTAKEN IDENTITY. 229 was tried thoroughly, as in the first instance. All the witnesses were again brought in, and all, including the landlord, swore very positively to the fact of identity. But when Mr. Shipman came to make the defense he proved an alibi for both his clients so completely and conclusively, that the jury rendered the verdict of not guilty, without delay. There -was no doubt left in the minds of all who heard the trial, of the innocence of the accused. " Slimmy " was in Niles, as he had stated to the court. The books of the livery stable man, and the testimony of a number of witnesses proved this be- yond a shadow of doubt. That the other man was in South Bend Avas equally clear. The hotel register showed his name recorded anions; the names of the other guests at the hotel. He was also identified by the landlord of the hotel and other parties living at South Bend. Now comes the curious coincidences of this case. The men who broke into Lockwood's house, and stole his goods, were both young men without beards. One was a tall, slim man, with a V shaped scar on his left hand, back of the forefinger. The other was a short, thick-set man with red hair, and spoke with a brogue. The innocent men, whom we arrested, were both young men without beards. One was tall and slim, and had a similar scar on the back of his left hand. The other was short, thick-set, with red hair, and spoke with a brogue. The thieves went from Bronson west on Saturday evening. The innocent men were arrested at the second station west of Bronson on the Monday or Tuesday following. 230 TRIAL PRACTICE. It is of interest to know that both of the actual thieves were sent to prison for other crimes before the innocent men hud been acquitted. One, as already stated, was sent to Jackson ; the other was convicted of some felony, and sent to one of the prisons in Indiana. The innocent men were incarcerated in all about six months. The keen skill and courage of the prosecution in ■ daring to swear the landlord first is commendable. The humane language and bearing of the court was noble, and the final victory of Judge Shipman was a work of charity that entitles each actor in this strange case to lasting honor. Remarkable as the story sounds there is no question of its reality. ONLY ONE WITNESS. The effect of a witness's manner in turning the jury's verdict was well shown in an United States Cir- cuit Court case, tried in Detroit a few years ago, where the plaintiff was a mining captain of powerful frame, entirely ignorant of book-learning and courts, but possessing a strong memory and impressive manner. The claim was sixty-seven thousand dollars, in a long complicated account to be made almost solely on the plaintiff's testimony. William P. Wells, now Professor in the Law Department of the Michigan University, and a permanent advocate, conducted the plaintiff's case. With G. V. N. Lothrop, of counsel, Messrs. Alfred Russell and C. I. Walker, defended. The witness was skilled in the details of the facts > a man of great coolness and courage in affairs, but ONLY ONE WITNESS. 231 timid in a court room. He rose to his feet when ex- amined and related a graphic and consistent story of the entire dealings from beginning to end : the sums paid, the matters left in dispute, with marvellous ac- curacy. For two long days he was rigidly cross-ex- amined, and every circumstance tallied with his truth- ful statement. So apt and original in manner, so thoroughly honest were his figures, that the jury hung upon his sentences like listening to music. The long accounts of both parties were extremely puzzling to counsel, but the brave captain handled them all like a painting. Turning on light when needed, and bringing out the important features in bold relief, he won a most signal victory over what appeared to be a powerful array of opposing testimony ; illustrat- ing the fact that witnesses must be weighed, not counted ; that the testimony of one man, if true, and the jury feel its truth, and he is shown to have had the best means of knowing the circumstances, may weigh against many ; for one man with right on his side, is always a majority. It is not enough for a witness to know a fact testified to, but he should know that he knows it, feel that he knows it, and believe that he believes it. 232 TRIAL PRACTICE. CHAPTER XXI. IN THE PROCESSION. The true rule in starting is to start well ; to take the right track and follow it. Once in the jwocession it is not a long march till some one will thin the ranks, and leave the pathway open. "The first step over, the rest is easy," says the Spanish proverb. So to join the procession is the earliest step in law busi- ness. If one seeks his rank in low grades of practice, and joins the procession near the rear, he must expect small returns from a poor clientage ; but if alert in action, and wise in his opening an office he will reach a place in season, and retain the advantage. Established lawyers are not out looking for students and partners, or offering rewards for specialists. They only notice merit if thrown in their way by business relations, so that to start with a live firm in a bright city is a fair beginning, and to start well alone is still better. It is not always an easy matter to get good posi- tions ; many a one waits too long and is discouraged. I know a friend that began low, very low. He merely had a clerical position, but in turn came the absence IN THE PROCESSION. 233 •of his employer, and later came on a rich director in a wealthy lumber company. The boy secured a position through his keen insight into the company's affairs : be- came secretary, and at last received a $7,000 salary — a handsome position for a young man to attain. Another took charge of an office, cleaned the books and cases, watched the trials, looked up the law ; made the office like his own ; learned the business, and now holds a third interest from his excellent habits of industry. Once in the procession, the profits and promotion fall easily to all men alike. There is a sort of " Civil Ser- vice reform " in law offices that few classes of busi- ness can equal. I have never known a bright, shrewd, active, ambi- tious and competent clerk, student or lawyer, to re- main a whole month without something to do. But the chances in the pi'ocession are six to one, and with reason. Men go to trusted subordinates for bank cashiers and foremen. They look for tried skill in most professions, preferring not to train experts, but to take them already educated, and there is no place where skill is more rewarded than in the legal profession. Men are helped most who most deserve promotion. Skill is shown by its workmanship. Edison, Brush and Appleby earned their fame by invention. The last worked years in poverty to perfect his Twine Binder Reaper that now reaps him a golden harvest. If the lawyer will show equal energy, study and patience, he will find his reward. And if some hint is found in the experience of the men here mentioned, then my pleasant task shall not have failed in pointing to their wisdom. 234 TRIAL PRACTICE. TRIAL ELOQUENCE. The following closing words of eminent counsel ex- hibit both the genius and art of the advocates. Occa- sions may arise where the simple reading of a mas- ter's language in his last appeal for life or damages, may stimulate many a student to a higher aim in elo- quence. There is a deep interest in a lawyer's fare- well to his jury. Couched in apt and appropriate words, like the tongues of dying men, they compel attention. The greatest cases demand the greatest efforts, but all arguments of importance deserve some impressive words that call out the nobler feelings of men in their high privilege of passing judgment on their fellow-men : HON. BEXJ. HARRISON IN "COLD SPRING TRAGEDY." I have at my house an old engraving that represents the first trial by a jury — an English picture. The twelve men are gathered in an open field. No house encloses them. It is a murder trial that is repre- sented, but it is very unlike this murder trial. We see here the accused and her family gathered about her weeping and appealing to the jury for sympathy. Not so there. The jury have assembled upon the commission of the crime, and the body of the dead lies at their feet upon a bier. A weeping relative of the deceased bends over the dead form, and her locks drop upon his face as her tears fall in her agony of grief. Another relative of the dead man, stooping over the lifeless form, points with one hand to the criminal and with the other to the gaping wound by TRIAL ELOQUENCE. 235 which the life tide went out. This was an old trial for murder. I only ask you now, as this group gather around you, to remember the dead that are buried away out of sight ; to remember the hearth stone whose tire has gone out forever. I ask you to re- member that orphan child who is wandering fatherless and motherless to-day. If any appeal shall be made to your sympathies, I ask you to think of the grief that has come upon another household. I ask you to think of that horrid scene at " Cold Springs," when the charred and blackened remains of that woman lay on the floor, and that man with his head all torn and his teeth bent out as if grinning in horrid mirth. I ask you also in her behalf, to consider these questions that have been presented to you carefully, honestly and deliberately. If she is guilty, speak the word, if not, then let her go free, and may the God of wis- dom lead you to the right discharge of this duty that remain- to you, and bring you to a right verdict. HON. W. V. FISHBACK IX '-COLD SPRIXG TRAGEDY." The thugs of India were a sect who worshipped Kalee, their Goddess of murder. They murdered travelers as they claimed in obedience to the decree of their deity. They would disguise themselves as pil- crims and ingratiate themselves into favor with trav- elers, and when their victims were off their guard strangle them. It is said that while a portion of a band of thugs would be partaking of the hospitality of their intended victim within their tent, others of the party would be digging their graves, and that at a 236 TRIAL PRACTICE. given signal the hosts would all be murdered by their guests. This approaches the enormity of the great guilt of these defendants. And yet even here the comparison is favorable to the thugs. They were hypocritical, it is true. They were avaricious, but the belief that they were doing the will of their deity made the act a superstitious one, and is certainly some palli- ation when we reflect that the thugs practiced their bloody creed where the light of Christianity had not reached them. But thirty years ago the Bible and the British army exterminated the sect. But what have we here — here in Marion County, in Indianapolis, the capital and pride of a noble Chris- tian State? Here under the very (shadow of the church spires which on every corner point the sinner to his God, we have a murder which for its cold- blooded atrocity, its avarice and cruelty in its hypoc- dcy, puts thugery to the blush. While such has been the guilt of this prisoner ; while she was so merciless to her victim, I here echo the humane teachings of the law when I ask you to deal with her in no spirit of vindictivencss. Deal with her mercifully, if you choose, but with that measure of justice also that bloody-minded men will pause and forsake their guilty purposes. COL. IXGERSOLL CLOSING IN THE STAR ROUTE CASE. You have nothing to do with the supposed desire of any man, or supposed desire of any department (turn- ing and addressing his remarks to the Attorney-Gen- -eral), or the supposed desire of any government, or TRIAL ELOQUENCE. 237 supposed desire of any president, or supposed desire of the public. You have nothing to do with these things; you have to do only with the evidence. Here all power is powerless except your own. When asked to please the public, you should think of the lives you are asked to wreck, of the homes your verdict would darken, of the hearts it would desolate, of the cheeks it would wet with tears, of the characters it would de- stroy, of the wife it would worse than widow, and of the children it would worse than orphan. When asked to please the public think of those consequences. When asked to act from fear, hatred, malice or cow- ardice, think of those consequences. Whoever does right, clothes himself in a suit of armor which the ar- rows of prejudice cannot penetrate, but whoever does wrong is responsible for all the consequences to the last sigh, to the last tear. You are told by Mr. Mer- rick that you should have no sympathy, that you should be like icicles, that you should be Godlike. That is not my doctrine, the higher you get in the scale of being the grander the nobler, the tenderer you will become. Kindness is always an evidence of greatness. Malice is the property of a small soul, and whoever allows the feeling of brotherhood to die in his heart becomes a wild beast. " Xot a king's crown nor the deputed sword, The marshal's truncheon nor the judge's robe, Became them with one-half so good a grace As mercy dues." And yet the only mercy we ask is the mercy of an honest verdict. I appeal to you for my client, Stephen 238 TRIAL PRACTICE. W. Dorsey, because the evidence shows that he is a man with an intellectual horizon and a mental sky — a man of genius, generous and honest. Yet this prose- cution, this government, these attorneys, representing the majesty of the republic, representing the only real republic that ever existed, have asked } r ou not only to violate the law of the land, but also the law of nature. They maligned nature, they have laughed at mercy, they have trampled on the holiest human ties, and even made light because a wife in this trial has sat by her husband's side. There is a painting in the Louvre, a painting of des- olation, of despair and love. It represents the "Night of the Crucifixion." The world is wrapped in shadow, the stars are dead, and yet in the darkness is seen a kneeling form. It is Mary Magdalen with loving lips and hands pressed against the bleeding feet of Christ. The skies were never dark enough nor starless enough, the storm never fierce enough nor wild enough, the quick bolts of heaven were never livid enough, and the arrows of slander never flew thick enough to drive a noble woman from her husband's side, and so it is in all of human speech, the holiest word, " woman." ARNOLD AND RYAN IN THE HUBBELL CASE. In 1853, Levi Hubbell, Judge of the Circuit Court for Milwaukee County, was impeached by the Assem- bly for high crimes and misdemeanors in office. The charge* were eleven in number. The preliminary pro- ceedings occupied six days. Mr. Ryan made an open- TRIAL ELOQUENCE. 239 ing argumeut on all the charges, occupying nearly the entire day. Mrs. Hubbell was at that time lying ill at the house of a friend near to the Capitol. Mr. Arnold made the closing argument for the de- fense, occupying an entire day, and concluded as follows : "And, in vonder cottage, almost within the hearing of my voice, there is yet another who is waiting, with intense solicitude, the result of your deliberations. She waits, in unshaken confidence and devoted love, for the accused. She is in deed as well as in law the wife of her husband, and she would clasp that man to her breast, though her arm were in a flame of living fire till it burned to its very socket ; her prayers are all around you — her hopes are all dependent on you. On bended knee, and with eye uplifted prayerfully to heaven, before you, she implores you : ' Oh ! give me back the husband of my youth ! I can surrender him to God — lean surrender him to my country — but Oh ! spare the blow which, while it destroys him, dooms me to lean upon a broken reed, and to a life without a hope.' Fell blow, indeed, which would de- stroy the prospects of one so young and beautiful, which, in a moment, would Change the current of her sinless years, And turn her pure heart's purest blood to tears. Her arms are outstretched to receive him, and their embrace will be warmer and purer, should the judg- ment of this court vindicate the honor and fame of her husband in the judgment of the world." 240 TRIAL PRACTICE. MR. RYAX'S CLOSING. He said : "It was said that this trial, that the evi- dence in this cause, had demonstrated this man's inno- cence to those who doubted it before ; that the ordeal of trial had demonstrated his personal and judicial purity to the world. Why, then, if thus sustained by universal judgment of the public, by the foreshadowed judgment of this court appointed to try him, by his own conscience, why, thus perfectly sustained in com- ing pure out of the fire that tried him, with the angels of heaven to watch by him here in the furnace in which his innocence is only proved, why kneel to this court in cringing appeals? Why, Mr. President, had I yesterday to hear the same pathetic declamation, to see the same mockery of tears, that I saw and heard upon the trial of Kadcliffe, the murderer? Why, upon this trial of a judge who stands upon his innocence, of a judicial officer who here says that he is innocent, who boasts that all the disclosures here have but tended to demonstrate his innocence, to redouble the faith of his friends in his innocence, and to convince even his enemies of his purity, wh} r , if all this secu- rity of innocence was here, were the privacies of domestic life dragged into this court to move the heart of justice ; crying, craven, weeping this court to have compassion upon the innocent victims of his guilt? It was bad taste ; it was bad feeling. And knowing the learned, eloquent, and able counsel, as I know him, I cannot think it was the prompting of either his taste or his feeling to do it." TRIAL ELOQUENCE. 241 Judgt HubbeU: " It was not my taste, and you know it." Mr. Ryan: '"I know the gentleman. I know the learned counsel well. I ought to know him well at this time of day : and I do not believe, when lie said in presence of this court, that he stood here not merely as counsel, hut that he stood here as the de- fendant's personal and judicial friend, I do not believe that he would of himself have cringed to this court, that he would have invoked the mercy of, and com- passion for women and children, the dead and the un- born, to mitigate the judgment of man upon man.'* Judge HubbeU was acquitted. COL. BIUNN CLOSING THE CLARK MURDER CASE. Perhaps the most important, and certainly the most hotly contested murder trial in the north west, was what is known as the LaGrange Murder Trial — tried in Chicago in the winter of 1878. To assist the State"- Attorney, the friends of the deceased, Alvaro B. Clark, employed the celebrated John Van Annan. .Mrs. A. B. Clark, the wife of the deceased, and one Joseph St. Peters, the " hired man,*' were charged with the murder. Hon. I). W. Munn, was attorney for .Mrs. Clark. The trial lasted nearly four weeks. Over eighty wit- nesses were examined. In the closing speech for the defense, made by Mr. Munn, a day and a half was oc- cupied in the delivery. The law and the facts were presented in a masterly manner; the jury and vast audience seemed entranced and spell-bound during his entire argument. With telling effect he took up the 242 TRIAL PRACTICE. testimony of each of the witnesses, endeavoring to show wherein the testimony for the people was un- worthy of belief ; especially that testimony tending to show T an improper intimacy between Mrs. Clark and young St. Peters, upon which the prosecution relied as showing a motive for the killing. Mr. Munn closed his remarks as follows : " Gentlemen of the jury, I am nearly through ; but for your marked attention and the earnest expression of your every countenance, which indicates to me your great desire to know the truth in the case, I should hours ago have left my client in your hands ; while she is full of hope, conscious of her own innocence, I tremble with anxiety that I may have left something undone that I might have done, as her counsel. It is a terrible responsibility to have the management of such a case, where liberty, and perhaps life, is at stake. You will bear me out, gentlemen, in saying, I have done what I could against the great array of tal- ent and of testimony brought to bear against my client. I only beg your indulgence while I examine one witness more, whom I have summoned from the spirit land. Here he comes. (The speaker lifting his eyes to the ceiling.) It is the spirit of Alvaro B. Clark — swear him not, Mr. Clerk, he is from the abode of truth. Take the stand, give the jury your name : "Alvaro B. Clark, formerly of LaGrange." "Do you know the prisoner?" (pointing to Mrs. Clark.) " Do I know her ! She i< my wife — the mother of my children — that were left fatherless by a murder- er", bullet/' ■ TRIAL ELOQUENCE. 240 '•Had she anything to do, directly or indirectly, with your murder?" "No! No 1 No! She is my first love. For years we traveled the path of life together in peace — de- voted to each other and our little ones — I see them here. When weary with the toils of the day. she met me with a smile and loving kindness ; in sickness she was devoted and kind, and at last, when I fell upon the steps of my own dwelling a corpse, she threw her- self prostrate by .my lifeless body and bathed my brow with tears of affection. I have watched the trial. I have heard the perjury from the lips of every witness. My darling is not ouilty ! not ol'ilty '."' Gentlemen, you have heard this witnes- who cannot lie. will you. can you. disbelieve him? If so | turning to Mrs. Clark >, here is your victim ! By your verdict tear her from these three bright little ones — her three children who are now fatherless, let them be cast upon the cold charities of an unfriendly world, fatherless, motherless: but if you believe this last witness, who needs no corroboration from any earthly witness, then by Your verdict lift this cloud from the mother, and let her walk forth as free as the air of heaven." This highly dramatic style is often dangerous, but in this case was successful : and who can complain of an art when it is tin thing that does ft? Such picture- are inspirations real, and their effect lasting. 244 TRIAL PRACTICE. CHAPTER XXII. STYLE OF SPEAKING. Distinguished speakers of all ages are believed to have given as much care and attention to the art of oratory as musicians now give to cultivate the rare melody of harmonious and inspiring music. To suppose one can enter on the field so full of genius as the lawyer finds on his early admission to practice, without some system, or plan of meeting this essential, is to believe more than men ever expect of any other business. The lucky man in commerce is one brought up from the habits of careful experience. 'To the trained sea captain his chart is simple. The brick layer or builder is a student of books and de- signs : the race-rider is one accustomed to horses, and even the woodsman has learned to handle his axe with clever skill and powerful force. Genius alone is well likened to a rich mine of metal, that thought and skill must apply to uses and values. It is not what we know, but how we make use of that knowledge, that makes the world better, or better comprehends its beauty. A man may out-think twenty of his neighbors and let nineteen of the twenty STYLE OF SPEAKING. 245 out-do him in honor and usefulness by one actual ac- complishment. I have seen a man cradle wheat with an ease and poetry of motion, and another strike the scythe into the earth at every other clip from awkwardness. I have seen the mason evenly spread his mortar that a new hand would throw down his sleeve with a single attempt to till his trowel. I have known the well- tuned voiee of Phillips, in graceful modulation, to so charm the senses of his hearers that few could count it less than music, and no one saw the art of concealing art that he had struggled so long to master. The art to charm the senses by pleasing speech is an enjoyment greater to the speaker once acquired than to rule an empire. Gibbon wrote his " Memoirs " six times to secure perfection. Turner walked over mountains and in the water till they colored the retina of his eyes with intensity, before committing the colors to canvas. The elegy of Gray and the " Vil- lage " of Goldsmith, with the later examples of endu- rance by Morse and Edison, are apt illustrations that, " the hand of the diligent niaketh rich " in oratory, in science, and all useful achievements. I am not urging the practice-before-a-lopking-glass- style, but a plan of speaking of, and dealing with, subjects that will command attention, and secure a fol- lowing. The method of Judge Curtis, of New York, is to think out his speeches as Sumner did. Van Annan writes incessantly during trials, while each master with consummate care the details of his case in his own peculiar way. 246 TRIAL PRACTICE. Both Porter and Shaffer, of New York, write all salient points of evidence with their own pens, and trust no notes to any but their own making. They commit their speeches as they go along ; the former, a powerful examiner, the latter, a master of human na- ture, both eminently successful. Judge Beach trusts different branches to associates, and speaks from copious manuscript ; while Graham reads frequently and quotes all the wisdom of the past, at command, on the topics under discussion. Emory Storrs speaks with powerful rapidity, composes on his feet, carries his hearers with rhythmical sentences, but is a trained and thorough speaker. Wirt Dexter is more deliber- ate, but equally effective. He is a master of modula- tion and emphasis, a student of line language and rich in resources. Colonel Breckinbridge, of Lexington, is one of the most flowery speakers since the days of Crittenden, whom his style resembles as Beach resembles Beecher. Daniel Dougherty, of Pennsylvania, is as fluent in his style as Tom Marshall was in his, without the eccen- tricities and brilliant fancy of that high bred Kentucky orator. Leonard Swett, of Chicago, and Colonel Broadhead, of St. Louis, form a pair of the most scholarly ora- tors in America. Yet each could relate many strug- gles and bitter embarrassments in early life. They had mastered the art of advocacy in earlv days, but practice their art like musicians, reading and improving through years of experience. Justice Matthews and Judge Hoadly, present a strange contrast, while Gene- ral Butler and Senator Colliding are as widely dissimi- STYLE OF SPEAKING. 247 lar. Butler wins by rarity of illustrations, Conkling by rich imagery, Matthews by his logic and intensity, Hoadly by his mastery of analysis and purely legal principles. Senator Carpenter was an ideal orator who chose his central point and built around it, graphic in style, vivid in description, it required that giant, Judge Ryan of Madison, to even approach him in argument. Stars of such brilliancy are seldom now equaled, and never excelled, in Wisconsin, that home of brilliant advocates like Vilus, Hudd, Jenkins and Hazelton. In the circle of the several States, from Gov. Davis, of St. Paul, on the west, to the scholarly Edmunds, on the east ; from the musical pathos of Judge Curtis in New York, to the picturesque imagery of Gordon and Yoorhees in Indiana, and the florid style of Jeff Chandler, on the Pacific slope, or the same vigorous heart-speaker, like H. M. Furnam, of Texas, each and all have come to fame by force of earnest oratory, ripened by age, and burnished by use. They stand and speak at the bar and before the public, and in life's affairs, as actors do on the mimic stajre : study- ing their several parts with care and diligence, apply- ing to them their genius and experience, ripened by age and fed by inspiration, till they so please their hearers as to meet most hearty recalls and clear appre- ciation in large emoluments. Tom Corwin, of Ohio, who started with Jere Black, and died young, was a master of advocacy, but a dif- ferent kind of a lawyer. He won by wit. His speeches were flowery. He often captured a jury by a simple story, or a flight of eloquence. He enjoyed 248 TRIAL PRACTICE. a joke, and made all others in hearing take an interest in his way of telling it. Large, laughing eyes, dark complexion, robust in speech and manner, for years he led the Ohio bar in eloquence and won his cases by it. He regarded his wit and manner as a mistake, and said at last that " men never respect those who always make them laugh." That "one should look wise to attain emi- nence." Mr. Corwin was in Congress with Henry Clay, and made many brilliant little speeches and attained national fame. His work is mentioned elsewhere. Webster and Choate were such active rivals as to be evenly mated. In the Smith Avill contests in 1845, the heirs retained Rufus Choate as their lawyer, where- upon the friends of the will secured the services of Daniel Webster as their attorney. The case came to trial before the Supreme Court of Massachusetts, in July, 1847, and occupied two days. There was the greatest excitement, not only on account of the inter- ests involved, but also on account of the fame of the two great lawyers who were to speak for and against the will. "The battle of these giants" is still remembered in this vicinity, although it occurred nearly thirty-six years ago. So great was the crowd that ladders were put up to the windows of the court house, and eager listeners stood upon them for hours. When Mr. Choate had finished his argument the conclusion was nearly unanimous among the spectators that the will would be broken ; but when Mr. Webster had finished his masterly address no one doubted but that it would be sustained — so say the older men of to-day who were present at the famous trial. The- jury brought in a verdict sustaining the will. STYLE OF SPEAKING. 249 General Butler early learned the secret of Choate's success, and matched it. He defended a famous case where Choate prosecuted, and in his closing made such a masterly analysis of his opponent's style, that he mortified the immortal Iiufus, and won his victory. Butler has since won many verdicts, and next to Beach and Roscoe Conkling, is to-day, 18*3, the greatest living advocate in practice. His chief resource is a large brain and long experi- ence in hard cases. He was government counsel in the Johnson impeachment case, and the master advocate of them all. What he fails to discern in a trial is hardly worth noting. His power of logic and strategy are both marvelous. In a railroad accident case the in- jured man said, " It's all my fault ; if I'd been inside I wouldn't have been hurt," showing clearly contribu- tory negligence. ' "This was but the wailing of a dis- ordered fancy," said Butler, "for they swear he was in his place, inside the car door — all swear it but the allies of this corporation." He won a $26,000 ver- dict, which, on two new trials, reached $45,000, and was affirmed and settled. Roscoe Conkling' s power is in mastery of language and force of argument. He is not a genius, like But- ler, but a man of immense tact, with force of reason and logic. He is commanding, intense, graphic, and full of supreme courage, which is admired in a court room, and delights an audience. He is rapidly acquir- ing a fortune in his excellent practice. Had he always followed the law as devotedly as he did politics, his fame would have been greater as an advocate. Larire, tall, commanding, almcst imperial in bearing, he is an 230 TRIAL PRACTICE. attractive and impressive speaker, with scarcely a peer as an orator in America. These advocates, all successful, are each students of oratory, patient in detail, earnest in manner, effective in delivery. While their number could be greatly augmented, and perhaps should be doubled, they rep- resent the highest order of legal eloquence and Amer- ican advocates. Many others herein described are equally worthy of study, and their wisdom and art dense with interest. Hon. Chas. S. May, of Kalamazoo, himself an ex- cellent advocate, thus vividly describes Mr. Lincoln's style of oratory in his great campaign with Stephen A. Douglas : Promptly at the hour appointed for the meeting, in the midst of a buzz of eager expectation and quiet ap- plause, following through the main aisle of the hall the chairman of the evening, there entered a tall, sal- low faced man with disheveled hair and lank, angular figure, dressed in plain black — and I had my first view of Abraham Lincoln. Preceded by the chairman he mounted the bare platform at the end of the hall, and after a brief, formal introduction, stood face to face with his audience. I should, perhaps, say, stooped apologetically before his audience, for, bowed forward, with his hand on a low stand where he had deposited a few scraps of newspaper memoranda, he presented a timid bashful appearance. His opening sentences were not more reassuring than his attitude. They were; hesitating, involved and awkward, as he went on to depreciate his ability to follow so distin- guished a speaker as (Jen. Cass, of Michigan, who STYLE OF SPEAKING. 251 had spoken the night before in the same hall. Indeed, so lame and halting were his first words, and so awk- ward and unpromising his whole appearance that, re- calling the eulogy of the party paper, I said to myself, " Can this be one of the first orators of Illinois? Is this what they call eloquence in Chicago? " But be- fore my disappointment had time to deepen into dis- gust, the speaker began to recover himself, he raised himself from the table to his full height, his language beo-an to flow more smoothly and grammatically, he began to uncoil himself in mind and body, so to speak, and very soon I was listening with rapt and deepening interest to his words. Of the speech itself, which held that weighty and intelligent audience for more than two hours, I still retain a perfect and vivid impression. Delivered in an animated, earnest, conversational manner, with a clear and pleasant, but penetrating tenor voice, with no attempt at oratory or fine language, it was a candid, a convincing and powerful political argument, ad- dressed to the reason and conscience of his hearers. Nothing could exceed its perfect fairness of tone and statement, and from beginning to end there was noth- ing to detract from its dignity — not an epithet or coarse expression, not a single attempt to provoke ap- plause, or create a laugh by anecdote, or joke, or stale wit, or appeal to passion or prejudice Mr. Lincoln was famous as a story-teller, but he did not tell his stories in his speeches. He was full of wit and drol- lery but he used these in private. The innate serious- ness and earnestness of the man lifted him in his public efforts to a plane above these diversions. But his TUIAL PRACTICE. logic was overwhelming, Proceeding from premises stated with the utmost fairness, and with transparent clearness, ii moved to its conclusions with a force and power and thoroughness that left no room or quarter for sophistry or evasion. In replying to the plausible aud specious arguments and positions o{ his great rival, who was a master of political attack and fence, he had abundant opportu- nity to display his great power of analysis and his keen discernment of the weak points o( his adversary. 1 remember, too, that he had a quaint and original way of putting things. Coming to a particularly un- truthful and audacious proposition of his opponent, he said : " Now, it is exceedingly difficult to answer such an argument as this. It gains strength and plausibil- ity, paradoxical as it may seem, from it< very unrea- sonableness, for when a man like Judge Douglas makes such a proposition, a man who has been so long in public life and in a position to know, it is natural for men to say, 'This thing looks so all wrong and preposterous to us that we may ho mistaken after all, for //< must see something that we dorCt see." A spontaneous hurst o( quiet hut genoral applause showed that the audience appreciated the keen, line point . 1 will not undertake in this brief article to give even the substance of this great speech. Mr. Lincoln had momentous questions to discuss — questions of Lib- erty, o( Slavery, o( Patriotism — and he treated tnem in a way I have never seen surpassed. Of all our great political speakers of this generation — and 1 have heard them all — he has been to me the model stump STYLE OF SPEAKING. 253 orator. Discarding all the tricks and artifices and slock expressions so common in this style of address, he literally reasoned with the people, and lifted them up to the plane of his own patriotic and moral earnest- ness. While it was not eloquence in the traditional and technical sense, it realized the very essence and definition of eloquence — persuasion. RUFUS CHOATE. Rufus Choatewas as nervous as a race-horse, quick, keen, fiery, fluent, pathetic and eloquent, tall, slim, graceful, gifted and bred to the law: he was seldom matched, save by Webster. The charm of his words was like a poem of wondrous beauty. The rhythm of his voice like sweet music. He was crafty in de- tails, but won by power of eloquence. A great lover of books and rare learning, he was a constant and hungry reader. Rhetorically speaking, he had the best command of language of any advocate of his day in America. His speeches are not reported. On the street he walked rapidly. His person stooped a little, but all who passed him recognized a genius of intense power and ability. I lis long jet black hair and piercing eyes framed a [tale face of intellectual mould and distinction. At the sound of his voice one would go nearer. Vast audiences hung on his sentences entranced. School-boys and college students especially, admired his exciting delivery and dramatic action. A friend who heard him seventy times in four years (he was always in important cases on one side or the 254 TRIAL PRACTICE. other), says : "I could listen to him all night. He was such an actor. No words now can be recalled, but I know he spoke as I believed, and reasoned as the common sense of the matter seemed to dictate. I remember he spoke to one at a time walking in front of the jury, but his voice was kept well modulated. The wonder of his delivery was its earnestness. The beauty of his thoughts entranced his hearers. He died early ; worn out under sixty, by the rapid running of his life's machinery, but in his intensity he lived long." DANIEL WEBSTER. Daniel Webster, the greatest of American orators and statesmen, was a native of New Hampshire, born January, 1782, died in October, 1852, at the age of seventy-one. At the age of fifteen he entered Dart- mouth College, graduated in due time at the head of his class ; studied law and taught in an academy for a year. He studied law in his native village, and was admitted to practice in Boston, at the age of twenty- three. His early practice was near his home, but later at Portsmouth, and was elected to Congress in 1812. Here his remarkable powers as an orator were devel- oped. He lived in an age of giants, and soon ranked as one of the greatest in the National Congress. Five years later he removed to Boston, and ten years later still represented Boston as a United States Senator. He was very largely employed in political life, having been twice Secretary of State. He had a strong de- sire for the presidency, but, like Henry Clay, was too prominent in his opinions to succeed to that station. STYLE OF SPEAKING. 255 Hi* chief prominence in law was his art of advocacy. In language powerful and dramatic, in delivery strong, logical and impressive, in manner dignified and ma- jestic, his name, fame, tone, character and presence increased the strength of his well-worded sentences. In any city and any country Webster's speeches would have attracted large audiences on great occasions. Other lawyers have known a wider range of authori- ties, many have mastered the facts with as accurate analysis, but few men ever combined such strength of voice, power of thought, or carried such conviction with his delivery as did Daniel Webster before a jury, in argument or a Senate debate. His character and speeches stand out alone, a monument to American advocacy. The style of Webster's speeches was in perfect har- mony with his nature. He was large, heavy, labored and strong, uever hurried, often grand, and occasion- ally sublime. But his nature was sublime. He feared only Choate, and Choate feared Webster alone. Web- ster won cases by logic. Choate by eloquence. The late Senator Stevens said of Webster: "I shall never forget my first trip away from home, nor the impressions it made on me. I was quite a young man, and some business fell into my hands that carried me north. I had never been as far as Washington be- fore, and, of course, I wanted to see what was there to be seen. I went into the Senate gallery and took my seat. I could easily pick out the prominent men by the pictures I had seen of them. Pretty soon a question came up, and the President of the Senate an- nounced that Mr. Webster was entitled to the floor. 25(5 TRIAL PRACTICE. Of course I was very much gratified that I was to hear him. He arose and began speaking in an ordinary conversational way. I think he took his snuff occa- sionally. He never made a gesture from the time he opened until he closed. I thought it all sound doc- trine, but I was convinced that I knew a dozen college boys who could have beaten him speaking. The next morning I picked up a paper. There was his speech headed: 'Mr. "Webster's Great Speech on the Finances.' Pshaw ! I thought they don't call that a great speech, do they? I saw another paper ; there it was again, headed ' Mr. Webster's Great Speech on the Finances.' I went to Baltimore. There they had Mr. Webster's great speech on the finances. I reached Philadelphia, and everybody was talking about Mr. Webster's great speech on the finances. I got to New York. There everything was in a ferment over Mr. Webster's great speech on the finances. It w r as the same way in Boston. So I concluded that it must, indeed, be a great speech. It put me to thinking, and I made up my mind that it was not the way a man said anything, but what he said made him an orator." NEW YORK LAWYERS. ^5 i CHAPTER XXIII. THE NEW YOKE BAR. Men who earn fabulous fees and make splendid names will always be watched with a degree of curious wonder. We like to look in alone on their inner life and see how they bear the silent struggles of rising in the world, that we may better judge of their power and fame, and how they have attained them. The present head of the American nar is not Charles O'Connor, who bore the honor so long and worthily. There is no head at present. He is aging fast, and over 70. His person was something like Choate, but for Choate's nervousness he has coolness. In presence, commanding ; in style, lucid and elabo- rate ; in trials, keen, adroit and full of the intuitive arts of a master advocate. Not so eloquent as the late James T. Brady or Rufus Choate, but combining so many traits and virtues, that he has ever been known as a model advocate. He has made all branches of law a science, and is a scientist in practice. Charles O'Connor, now over 75, nearly out of court practice, is still one of the model advocates of America, and would have made his mark in any nation as a clear, logical and convincing rea^oner, of great indus- (17) 258 TRIAL PRACTICE. try and excellent common sense, always his best weapon in winning cases. In figure, tall, erect, dignified, ready; with no at- tempt at wit, captious practices, or overbearing means of seeking victory, he first mastered his profession, next his cases, and last, his courts and juries. His voice has ever been clear with metallic ring and singu- lar penetration. His self-poised and even-tempered action, leaves him always complete master of his sen- tences. He cares little for trifles, and acts, speaks and brings all evidence and law to bear directly on the merits of his cases. In this way he is trusted, believed in and followed by a host of clients and corporations of which he has long been the trusted adviser. He is rather austere, but it is from force of habit rather than feeling of pride or haughtiness. To secure his counsel one must pass a paitner or two, and be prepared for a brief visit and a large deposit in fees ; the latter he never accepts from his intimate clients, it being requested by the gentle- manly time-keeper at about $100, and more every extra hour's consultation. "Win. M. Evarts, of the O'Connor school, is his peer in training and success ; wonderfully fluent, acute, far-seeing and logical : more of a national character, and less of an advocate than his competitor for a quar- ter of a century. He is slim, spare, with large powers of reason, and splendid ability. He wins his cases by learning all the law, and knowing all the fact that can apply to the trial, and never wearying in well-doing. No man can excel him in presentation of cases to a court of last resort. NEW YOKE LAWYERS. 259 Mr. Evarts was secretary of State under President I Lives, is an intellectual New Englander, of clas- sical attainments, equipped in all arts of advocacy but magnetism. Mr. Evarts is a man of marked in- telligence, keen insight, marvelous language and mem- ory, whose delivery is one rapid and exhaustive train of logical reasoning, positively convincing in its man- ner of statement and conclusion. He has been the attorney in more large will cases, and counsel in more matters of a national nature than any man in America. Early in the war he had charge of the Mason and Sliddell matters, later in the Geneva Award, and later represented the republican side of the Electral Commission, and in each case came out victorious. He is industriou-, graceful, fluent, wise and successful. To his wonderful memory of legal principles he adds the tact and acumen of a master advocate. Without much of the magnetism of Beach, he was an excellent match for him in the great Tilton- Beecher trial in Brooklyn. His whole tact in that case could never be described better than in a single word, kindness. It is not an uncommon thing for him to accept a S20,0<)0 or $50,000 fee in an important will case. Judge John K. Porter, late of the Guiteau trial, is one of the old school lawyer- of New York. He is not a large man, say about five feet nine, with fair round face, jet black eyes, short gray hair and moustache, a little bald : erect, energetic ingenious. He is subtle in the arts of court practice. He was not real well during the eleven weeks of the " meanest trial on earth,'* but rested under instructions of an emi- 260 TRIAL PRACTICE. nent doctor, and looks fresh and quite youthful for one of sixty-three. Judge Porter is an inveterate worker. He relies on no one but Porter, takes his own notes, continues in the same plodding, pains-taking labor that he did in the country. He carries his country genius into the city, and it is said whether he or Beach shall win de- pends on who has the last say to a jury. His style with a jury is that employed by Paifus Choate — winning one at a time. The President's murderer mistook his man in Porter. The long play of words and the ingenious trap set for the assassin's vanity w 7 as sprung by the advocate when he said : " Then you mean if Mrs. Garfield had been with the President on the 2d of July you would not have shot the President? " " No, I would not," said the pris- oner. " Then it was Mrs. Garfield's presence that restrained you once, and her absence that let you fire? " . " Yes," said the foolish witness, and he was caught. William A. Beach, of the Beecher case fame has an elegant office on Wall Street, high up and reached by elevator. One would not believe him to be over sixty by appearance, yet he is by his own count about sev- enty-three. Not as large as I expected, probably like the boy's giant that he expected to find as tall as a tree, and found but little taller than his father. But one is charmed by the manner and voice of Mr. Beach. He, too, was a country lawyer, and knows what struggles lawyers bore in. an early day. Now he enjo}'s large fees from heavy verdicts and national fame. He is a little above medium size and height. NEW YORK LAWYERS. 2(51 with thin gray hair, gray eyes, small chin whiskers, and a countenance a little like Mr. Beecher's ; lighting np with smiles or emotions, changeable and warm. He is social and kind, able and ingenious, gifted as a speaker, and has a way of impressing his belief upon a court and jury in telling terms. He took me by the hand in a way that said come nearer. He talks like Beecher. He is to the bar what Beecher is to the pul- pit — all original, and as an advocate in New York, the noblest Roman of them all. Chauncey Shaffer, of New York, is a lawyer of varied skill and intense application. His mastery of men, learned in the early contest^ of poineer advocacy, is remarkable. He sifts the motive of human action ; he is a genius with a natural rugged country way ; he surprises a jury and his adversary by quaint sayings of original beauty : he relies on the sturdy sense of justice, honor and fair play, and shows a jury what they ought to do, and must do to be just and faithful. He re- moves obstacles and plants his cause on such rocky piers of evidence, that opposite argument cannot change his theory. Few men in New York are more dreaded as an adversary, or admired as associate counsel. He is large — about five feet ten — and weighs nearly 200 pounds; broad chested, strong limited, with smoothly shaven fleshy face, massive head, and piercing gray eyes that retain their sparkle at the age of over sixty-three. He is fluent and versatile in speech, and jokes and illustrates in ordinary suits, but never in sacred cases. He wins his cases by an old fashioned way of saving homely things well. And when all is said, only a half has been told. You should see him 262| TRIAL PRACTICE. with expanded chest, his eyes, arms, face and hands alive with the fire of eloquence, that fills a court room and thrills its hearers. When this manly form is quiv- ering with the power of a genius bursting into truths through concentrated speech, when the man is forgotten and his theme coining a climax. To see him thus is to admire a style of oratory that is rapidly passing away, which to him, has secured an excellent clientage and an enviable reputation. His recent verdict of $30,000 against the Elevated Railroad Company in New York, obtained for injuries against great odds, is a signal victory. The following extract from Mr. Shaffer's speech in closing the Steven's Poisoning Case shows his style of jury work : " This I have taken time to demonstrate to you, gentlemen, that you should see your way clearly. Do you suppose the body had been tampered with, when it was taken by the professor to his private laboratory when it was under lock and seal ; you will remember that all through the year the body of this woman committed to the earth is preserved by this arsenic within it. Nor did this body absorb the poison from the earth surrounding it. We have summoned the earth surrounding the coffin, and the earth re- sponded, ' it is not in me.' We have called upon the dead woman's shroud, but the shroud says, 'it is not in me.' We have called upon her coffin, and the very nails and handles of that coffin, and each responds, ' arsenic is not in me.' And yet in the body of this unhappy woman, arsenic is found, sufficient to preserve the dead from decomposition or decay for a year. Standing securely upon the immutable test of arsenic NEW YORK LAWYERS. 263 we cannot err. Thus science has testified to the awful fact that this woman died from arsenious poison. " You have heard all this chemical evidence, how arsenic passes through the system, and how it is absorbed, how it remains two to four days unless death intervenes, and how, when death intervenes, it fastens itself in the portions of the body, follows its victim and lays down in the grave to preserve the natural body. Here are the pieces. Here are the tests. There is the metalic stain. Arsenic has killed its victim. The metalic stain in tube number seven glows with the lustre of the deadly mineral. Dr. Doremus applied every test to that body, and that body through the voice of science responds : In me are the seeds of death. Four to six grains of the deadly poison have been found and preserved. One-fourth of a grain has been known to kill a person. His closing in this case was substan- tially as follows: "I shall make no further attempt to increase your sense of your present responsibility. I will not plant my foot upon the grave of a murdered woman and call for vengeance. Vengeance is not mine. If I could, I would not again ask you to go over the journey of pain, and review the torture, or listen to the low moans of patient agony : to the prayer for peace of one who is free, and we trust in that home above the sun, where pain and torture are no more. But I will ask you as men, as hus- bands and fathers, as good citizens, to be brave, to trouble not yourselves with consequences, to be daring in duty, to remember your oaths and how you are pledged to God and your country to make thorough this investigation and impartially to weigh this evi- 264 TRIAL PRACTICE. dence, and arriving at the truth, the whole truth and nothing but the truth, fearlessly to declare the same, thereby discharging your whole duty to the people and to the prisoner of giving him the benefit of all reason- able doubts, and may justice be done, though the heav- ens fall." Joseph Choate, of New York, a nephew of the well known Iiufus Choate, is what we call a clean cut, clear headed lawyer, of excellent success in practice. Tall, erect, of fine presence and attractive voice, he is clear, lucid and forcible in trials, and wins many cases. He has rather a striking face, high .forehead, blue gray eyes, brown hair, and small side beard — a man of some forty years, who handles his cases with studied care and extreme clearness. In argument to the jury Mr. Choate seems to give much time to explanation, while this may seem needlessly prolonged to many, it is the practice that wins a law suit. It is said of Mr. Choate that he is at times eloquent, always earnest, and that his simplicity of statement is his rare gift of reaching a jury. Judo;e George M. Curtis, of New York, one of the brightest advocates of the American bar, was born in Massachusetts, June 18th, 1843. Served in the Union army in the late war. Studied law with Hon. John W. Ashmead. Was admitted on reaching his majority, and elected to the State Legislature where he took a high rank. Was, later, Assistant Corporation Attor- ney of New York, and still later served a six } r ears term as Judge of the Marine Court. In practice, few men of his age have been so promi- nent in important cases. He has appeared in fifteen NEW YORK LAWYERS. 265 murder eases, in which none of the accused were hung, and all but four absolutely eleared. He defended Helmbold on a charge of insanity, and cleared him ; appeared in the Frank Leslie Will Case, and the famous Buford-Elliott Kentucky case. In the Bouden Will Case he established the doctrine that a man in the last stages of Bright's disease was incom- petent to make a will. It is said that he never lost a case where he had the last say to the jury. His recent signal victory was of Neville v. Hitchcock, of the Fifth Avenue Hotel, where for a week he was opposed by Joseph Choate, a brilliant descendant of the great Boston lawyer, in •which contest Judge Curtis was triumphant. He i- thoroughly at home in fraud, malpractice and insanity cases, and often makes briefs for older law- yers. If there is a born orator in New York, it is Curtis, and his style i- a marvel. Never taking notes, but thinking out his subjects. He is extremely fluent and forcible a- a debater and "Stump orator." Per- sonally only forty years of age, a little over the medium height, rather heavy build, but well pro- portioned, with smoothly-shaven, strong face, like Napoleon's. His clarion voice is deep and musical. Having long been an editorial writer (once on Leslie's Pictorial)^ he is ready in apt and appropriate language. His long service on the bench, makes him ready in practice, but with all his gifts of advocacy he has but one rule : "A thorough preparation in evidence and law of every case, diligence in enforcing both, with the tone, man- ner, and conduct of a gentleman." 2