UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY MODEM JURY TRIALS AND ADVOCATES: CONTAINING CONDENSED CASES, WITH SKETCHES AND SPEECHES OF AMERICAN ADVOCATES; NOTKS AND RULES OF PRACTICE. FOURTH REVISED EDITION, ENLARGED. BY JUDGE JOSEPH W. DONOVAN. 'K THE BANKS LAW PUBLISHING CO. NEW YORK 1908 COPTBIGHT. 1908, BY THE BANKS LAW PUBLISHING COMPANY PREFACE. Vy many jury trials of the past quarter century hare contained subjects of exciting and romantic interest. Some have been tried by brilliant adv<>- cates, whose uainus alone foretell sayings of original beauty; men who possessed the art aud genius to please and persuade a court and jury, in a rare degree. A few cases are already reported, but many have been lost by hick of a record in an enduring form. Wise men have given long lives to the study and art of court practice. Their experience and genius, learning and acumen shine in their victories and sparkle in their speeches in gems of u-isdom worth their weight in gold. Law libraries are full of reports and digests, that life is not long enough to read. The details of jury trials in a single year would be more than any man could master. But standing out from the rest, with stirring thoughts and thrilling interest, are celebrated cases of the past twenty years, and eminent orators, who turned the verdict of juries, by their skill and eloquence, that every advocate should know and remember. To read them is to see the art by which great suits are won, while no class of literature is crowded so full ol incident, human nature, and the wisdom of everyday life. Some of the most important, with as large a variety as possible, of these cases have been selected, condensed, and here reported, with the details and evidence largely omitted. The language and manner of counsel, wit, stories and sketches, are given to show their weapons of warfare. Examples of how juries are selected, witnesses examined, trials prepared, evidence secured, with rules of practice and rare closing periods, taken from stenographers' notes, briefs of counsel, and careful observation, in a dozen different States. Much could be added, and many eminent names would be mentioned, but they hap- pen not to be personally connected with the cases here cited, and their words have not been saved, in form to use, although kindly disposed, they wer unable to furnish the speech or sketch that would be of general interest. This report is confined to modern jury cases, many of which are greatly abbreviated, some are reduced from nine hundred to forty-five pages, while their salient points are aimed to be preserved, and the story kept complete. Many of these cases alone would fill a large volume; but the eloquence, inci- dents, genius and acumen of counsel, are shown in cross examination, debates on evidence, and arguments to the jury, without verbiage. The power, pathos and ingenuity of the defense, or logic and stern facts of the prosecu tion, have been arranged in as terse and readable a form as I could give them, generally giving from thirteen to thirty pages to a case. n CASES REPORTED, WITH COUNSEL. MATT. WARD CASE 10 Counsel Messrs. CARPENTER, TOM MARSHALL, Gov. CRIT- TENDEN, GOV. HELM, Ex-PuEBIDE.NT HAYES, GEN. WOLFE. MARY HARRIS CASE 86 Counsel Messrs. D. W. VOORHEEB, BRADLEY, CARRINGTOR aud HUGHES. DEFENSE OP COOK 107 Speech of D. W. VOORHEES. CONSPIRACY CASE . 110 Counsel Messrs. W. H. SEWARD, J. A. VAN DYKE, SENATOB HOWARD, JOHN VAN ARMAN. SICKLES-KEY CASE 181 Counsel Messrs. GRAHAM and STANTON. Defense of home. TRIAL BY JURY 166 HON. CHAS. S. MAY. (University address.) PIERCE WILL CASE 190 Counsel HON. CHAS. S. MAY. FARMAN-WARD CASE 206 Counsel Messrs. LOTHROP, MAYNARD and HOWABD. TWENTY-ONE RULES OF JURY PRACTICE .... 209 IDEAL CASES 223 WINNING CASES 224 SELECTING A JURY . 227 CROSS-EXAMINATION 228 LOCK OF LAW 230 REACHING A JURY 232 THE OTHER SIDE 284 METHOD t85 viii CASES REPORTED. LAW OFFICE AND TRIAL 288 MAY-STEPHENS CASE 243 Oouruel Messrs. Me REYNOLDS, ASHLEY POND, 8. M. CUTCHEON, \S M. A. MOORB POSTER-HATFIELD CASE 24 GEN. THOS. M. BROWN. TRIAL OF UNDERWOOD 26U Counsel Messrs. CHAMBERS, CHIPMAN and CHESTER. VANDERPOOL-FIELD CASE . . . (1)277; (2)282; (3) 2W Counsel Messrs. LOTHROP, VAN ABM,- N, HUGHES, CUTCHKON, CHURCH and CHEEVER. McFARLAND-RICHARDSON CASE .814 Counsel Messrs. GRAHAM and BBADY. NEWLAND-EVANS CASE 854 Counsel MAJ. J. W. GOBDON. WARD WILL CASE 894 Counsel Messrs. J. LOOAN CHIPMAN, WEBT DEXTER, DABWIN HUGHES, KOMEYN and MEDDAUGH. BR1NKLEY CASE 411 Counsel HON. WM. A. BEACH. BEECHER-TILTON CASE 433 In brief, with EVARTB and BEACH sketched. BABCOCK CONSPIRACY CASE 420 Counsel Messrs. STOURS, PORTER, DWYEB and BROADHEAD. RAYMOND-HILL CASE 452 Miss LOCKWOOD. ELEVATED RAILROAD CASE 456 GEN. BUTLER as an advocate and orator. CALLAHAN-TORMIE CASE 465 Counsel HON. JOHN MCSWEENEY, and other*. PORT HURON RAILROAD CASE 471 HON. STANLEY MATTHEWS. BIBLE IN THE SCHOOLS .,473 HON. STANLEY MATTHEW*. STANDARD OIL CO , . 482 HON. STANLEY MATTHEWS. PAGE IMPEACHMENT CASE 494 Ex-Gov. DAVIS, of Minnesota, BURCII DIVORCE CASE 523 Counsel MILLER, BROWNING, VAX ARMAN, etc. INDEX TO SELECT PARAGRAPHS. CHIEF JUSTICE RYAN, on law practice and college course VILUS, HUDD and JENKINS. SENATOR MATT. CARPENTER . HAS ELTON. Personnel of a brilliant advocate. STOKES-FISK TRAGEDY Counsel LYMAN TREMAIN. BUFORD-ELLIOTT CASE Counsel GEN. BRECKENRIDGE and JUDGE CURTIS. CLOSING PERIODS PAGE 550 567 571 606 666 INDEX TO SELECT PARAGRAPHS. CRITTENDEN . VOORHEES . SEWARD . VAN DYKE . STANTON . GRAHAM . HOWARD . McREYNOLDS GORDON . GORDON WESTERN . LEGAL DUEL BEACH McSWEENEY . BROWNING MATTHEWS . DAVIS . BROWNING . RYAN . BRECKENRIDGE . CURTIS ARNOLD and others. Allegory .... Growth of Affection Flight of Time . Forecast of Future . Art and Sagacity Friendship Wreaths of Laurels Picture of an Accident Flowers on the Grave Tribute to Virtue Picture of a Battle Dexter and Chipman Sacredness of Marriage Duty of Advocates . The Mother and her Children Apostrophe to the Bible . Tribute to Shakespeare Life's Last Hour Lawyers as Leaders Welcome to Sir Knights . Early Affections . In Closing Periods . PAGE 33 83 114 123 132 134 209 245 362 373 357 403 411 468 536 478 516 538 555 610 647 680 BARTLETT BEACH BUTLER . CHEEVER . CHIPMAN CRITTENDEN CURTIS . DARROW . GORDON . GRAHAM HOWARD HUGHES PERSONNEL. LEWIS .... PAGE xi LINCOLN 423 LOTHROP . . 456 MATTHEWS . 293 MAY . . 394 McSWEENEY . 28 MARSHALL . . 630 RUSSELL 706 TREMAIN . . 356 VAN ARMAN . 130 VAN DYKE .... . 130 VOORHEES . 294 INDEX TO ART AND SAGACITY. ART AND SAGACITY. BEACH . ... OnBeecher .... ^45 BRADLEY. . . Stilting Questions . . . . -. 4-2 1 BRECKENRIDGE . . Malpractice .... 684 < HEEYER ..... " Witness Trees" ..... 305 CHIPMAN .... "With a Witness" .... 267 ( K FRO ..... Self Defense ..... , T1S ..... "Chivalry" ..... DARROW ..... The Hcywood Case ... GORDON .... "Separate Jurors" .... 357 GRAHAM ..... Insanity ...... 328 I1ANCHETT . . . "In a Millkfti Case" Value of a Lawyer;" Trial Hints; "The Greek Wheel" . . . . jriii HUGHES .... "Tine Table" ..... 258 LEWIS ..... Self-Defense ..... 714 LINCOLN .... First Murder Case 70i MARSHALL'S .... Character ...... 21 -Kl.l ..... On Damages ..... 675 TREMAIN ..... From Cicero ..... 591 VOORHEES .... "Bouquet" ..... 94 WALKER ..... " Law Office, &c.," .... 238 WEBSTER'S .... Closing ...... 425 NOTE TO FOURTH REVISED EDITION. JUDGE BARTLETT, of Nebraska: " Your suggestions have brought me '//' it success in handling arguments." That a book of sixty trials, covering a period of thirty years and cit- i.ig cases back for two hundred years, tried by two hundred of the ablest advocates in this or any country, but mainly by American advocates should continue to sell for twenty-seven years is some proof that the law- yers who tried the cases reported were able to master their facts and law as to enforce attention by their eloquence. The marvelous changes in our country, in law, literature, banking, mining, building, shipping and machinery especially the trolley, the mo- bile, the fast travel and vast ness of commerce and contracts has multiplied the cases and trebled the fees for the same services and placed all skilled labor and skillful men on a high plane of income. In scarcely any place is this more pronounced than in the trial of large cases, which have come to my attention in fourteen years of Circuit bench service. I have failed to note any greater eloquence or more skill in trials, more genius in forecaste, more power of presentation by the higher class of present day advocates over Webster Evarts Butler Seward - Mathews Curtis, Ryan Conkling -Carpenter and Lincoln, even since the enlarged scope of law schools and college training. A lawyer is in the man. It may be finer finished scholars from college, but the real lawyer is still one who has solved the problems he presents to a court or jury in his own way: in his own process of reasoning; in his own logic, genius and preparedness, learned and applied in the sharp school of experience. At the close of the volume and in sections midway and throughout are given winning points hints on cross-examination happy turns, trial eloquence and observations on plan of speaking with a power to please, a way to win, drawn from examples. And attention is called now to one il- lustration which may stand as an index to many, and afford to a student an actual avenue across the world, by which one fact is so established as to become stronger and stronger, convincing and more convincing every time it is repeated. It is found under the heading, The Greek Wheel, elsewhere inserted, the core of which is: " I am reminded, O, King, that there is a wheel, on which the affairs of men revolve, and its mechanism prevents any man from being always fortunate." One will see at a glance how the wheel applies, and has always ap- plied, to lawyers. The last quarter century has been an evolution in law practice. It has about equaled the progress of machine work over hand labor. The shorthand dictation is of immense value to busy practitioners. The rapid cross-examination to unearth predatory wealth, and the poorly hidden xu MODERN JURY TRIALS. riches, unlawfully made in the giant insurance venture. Trusts and watered stock dealings; the Dill Settlement of the Frick case, a pioneer million dollar fee with all the partnerships, shareholders in corporate stock, have far outstripped Congressional or Senatorial positions. In fact, ours is the day and year of fame and fortunes earned in litigation, and well may the wise and eloquent lawyers lead in the Arts of Civil Government. The value of a lawyer to-day is greater than ever before, depending upon his keenness, alertness, preparedness to do the kind of service de- manded of men who handle vast interests; leading up high on the ladder of fame, as witness, Choate to St. James, Root to the Cabinet, Folk and Hughes to the leadership of great state issues, or Spooner to resign a Sena- torship for a higher position large law practice. Never in our history, were great lawyers in greater demand. J. W. D. DETROIT, March, 1908. THE VALUE OF A LAWYER. X The value of a lawyer depends upon himself his alertness, his pre- paredness of mind, and body for the task that lies before him. It matters not where he gains his preparedness, whether it be at Harvard, Yale or Ann Arbor, in the Court Room, in his study, or by ex- perience. Such keenness, forecast and preparedness will surely be needed to raise him above his fellows. It takes great intellectual gifts, said May, to make a great lawyer. No man rises to a height at the Bar, without a struggle, and without in- tellectual power. Unlike the minister, with his ex parte case behind the pulpit. Unlike the doctor with his prescription in the dark, the lawyer's work is done in the broad light of open day, confronted at every step by able opposition, and argument, with the entire community looking on. To meet such a test requires the keenest and ripest powers. We need our advocates, and our lawyers, we need them for the glory of arts and of letters, but more than all, for the perpetuity of our institutions. It was the plain country lawyer of Saginaw, with his mastery of law, who raised the point in the Million Dollar Depot case, to the effect that one who draws a contract, and leaves it uncertain, when he could have made it certain, is ever after estopped from trying to alter its terms in his own favor, and the country lawyer, Benton Hanchett, won the Million Dollar case on that single issue, as the case was promptly affirmed on that issue. O, to be just a country lawyer like Hanchett, and win such a brilliant victory. We need not go so far from home to find the value of a lawyer with an opportunity, for we know of a nearby lawyer, at our own banquet table, right here in Hastings, and know that he won in a great railway tax case, with a matter of six million dollars to the credit of the State of Michigan, and to the everlasting credit of our "Charlie Blair," of the Su- preme Court of Michigan. And I add again for emphasis, O, for the value of a lawyer, just as good as Justice Blair! But another, and greater than all lawyers ever yet produced in our country and I say it deliberately, for at the firing on Fort Sumter, April 12, 1861, the greatest lawyers of our country were at sixes and sevens on the power to maintain the Union. When a plain Western lawyer, xiii xiv :,;M>i-;ux ji'itv vi.i with wisdom, forecast, and eloquence, said: the power of perpetuity was implied in our form of government, and even on a contract basis one partv could not annul a contract without the consent of both .parties. And almost in the same breath. England and France were about to recogni/e the ( 'ontVderacy. and Seward jienned a savage letter to Eng- l;in have just witnessed. Mr. MARSHALL There is a great variety of theaters in this world, and you have performed characters in some of them that are by no means enviable. Mr. CARPENTER So have you, sir. The COURT I must insist that the gentlemen refrain from remarks of this character. Mr. MARSHALL I desire to treat the court with all due respect; but, sir, the gentleman has addressed a personal charge to me, and I felt bound to retort. He has accused me of assuming theatrical airs, which I must certainly repel. Why, sir, my manners are the most natural in the world, and have been too long worn to be thrown off at this late day. And when a personal and insulting remark is made commenting upon them, I need not say that it is offensive. Mr. CARPENTEB I intended no insult to Capt. Marshall it was merely a side-bar remark. The COURT Let the case proceed without further interruption. James M. Allen, sworn Reside in Yazoo City, Mississippi, was in Louisville in November last; on the day of the accident, in the morning, I was sitting in the office of a hydropathic establishment, where I was a patient, when Mr. Sturges entered and said: "For GOD ALMIGHTY'S sake run for a doctor; Prof. Butler has been shot, and is killed! " He ran out, and just then Matt, and William Ward passed the door of the office; I started to Dr. Caspari's office, but saw one of the school-boys before me, and did not go; Gudgel and myself then went towards the school house; in the yard in front of it there were some ten or fifteen boys; went in and made some inquiries; one of the lads was Mr. Worthington's boy the others I had frequently seen, having often exercised in the gymnasium with them; they were pupils there; I asked where Mr. Butler was; I passed up the steps and shook hands with young Worthington, and addressed the question to him; think he replied that Butler was gone; I then asked how this happened; the boys were all collected around me and seemed anxious to communicate; several of them answered my question, and Worthington, though he did not speak, nodded his head in assent. Mr. CRITTENDEN What was the answer you received? The prosecution objected to the question, contending that the 14 MODERN JURY TRIAIA expressions of the school-boys could not be evidence unless they were identified as the individual boys who had testified here. The witness had understood Worthington to assent to the state- ments made by the other boys at the time. The court therefore ruled the question to be legitimate. WITXKSS Several boys spoke at once, and replied that Ward came there and cursed Butler; that Butler then struck him and Ward fired; think one of the boys said Butler took hold of Ward. This testimony, except so far as relating to Worthington, was ruled out by the court. J. T. Gudgel, sworn Accompanied Mr. Allen to the school house after the unfortunate affray; Butler had gone, but there were fifteen or twenty boys about there; we inquired how the matter occurred; addressed the inquiry to the whole crowd of boys who were there; did not know any of the boys; five or six answered that Ward had come to demand an apology of Butler; that Butler had refused to give an apology, and ordered him out of doors; all said that Butler had struck the first blow, and Ward had then fired; some of them said Butler had pushed Ward back and nearly thrown him down, and that as he was getting up he fired the pis- tol Mr. Harney y sworn Am the wife of Mr. Harney, editor of the LouisviUe Democrat. When I reached home Prof. Butler was already there; I found him lying on the rug in the parlor; the house was full of people; I did not speak to him until some three quarters of an hour after I returned; then had a conversation with him; when I entered the room he raised his hand to me in recognition; I knelt by his side and begged him to be composed; he seemed very much agitated; I told him to be quiet, as much depended on it; that the physician thought it was only a flesh wound, and we hoped he would recover; he said he could not, and repeated the same words; he said, "No, do not be deceived I cannot live; when I am gone, will you be kind to my poor wife and baby ? " He then desired to see Mrs. Butler; he seemed impressed with the conviction that the wound was mortal; I was with him until his death. I brought Mrs. Butler in at his request; he died the same night, between 12 and 1 o'clock. Mrs. Elizabeth Butler, sworn When Mrs Harney took me to my husband, he told me not to be deceived that he was dying; I told bin to be calm, that the physicians thought he would recover. MATT. WARD CASE. 15 bnt that every thing depended on his being kept quiet; he said, "No, Lizzie, don't deceive yourself I am dying;" he thought, until his death, that the wound was fatal. * * * Witness was here overcome with emotion, and, trying in vain to conceal her tears, covered her face with her veil. The counsel for the defense declined asking Mrs. Butler any question, remarking that they had no desire to inflict suffering upon her by calling her mind to the details of the unhappy occur- rence. Dr. D. D. Thomson, sworn Reside in Louisville, and practice my profession there; shortly after 10 o'clock, on the morning of the second of November, was called to Col. Harney's residence to see Prof. Butler; he was deathly pale and faint; several boys were holding him up, and I had them place him in a recumbent position; he asked me if he was not a dead man; I told him I hoped not, but could not tell until I had examined the wound; we took off his coat and tore open his shirt; the wound was on the left side, about one and one-half inches obliquely above the left nipple, it was much burned with powder around it; I attempted to probe it, but failed to do so, being unable to follow the wound. Dr. L. P. Yandell, sworn Am a practising physician in Louis- ville, was called in to see Prof. Butler, on the second of November, shortly after he was shot; he seemed to be mortally wounded; Dr. Thomson was attempting to probe the wound, and when Dr. Cald- well came in, he attempted to assist; the probes did not seem to penetrate the chest, and we then felt and expressed a hope that the wound might not be fatal; shortly after, however, I heard the blood issue from it in a manner that convinced me that the ball had entered the cavity; when I asked the position he was in as he received the wound, he replied that they were clinched; that Ward called him a d d liar or scoundrel, and raised his hand; that he (Butler) then struck Ward they clinched, and was immediately shot; the ball passed through a part of the left lung, where the ves- sels are large; it caused his death. Dr. Muguet, sworn Reside in Louisville; was with Prof. Butler, after he was shot, on the second of November; went to see him about half -past one o'clock, and remained a short time; went again at half-past seven, and remained until his death; was present at the post mortem examination; was well acquainted with Prof. Butler; his right hand was always disabled; he could not open or close the fingers of it. 16 MODERN JURY TRIALS. J. J. Gillmore, sworn Reside in Louisville; am a gunsmith; on the morning of the second of November last, Matt. F. Ward came into our store about nine o'clock; he asked to look at a pistol; he took it, examined it, asked the price, and told me if I would load it he would take it; I did so; he then hesitated a moment, asked the price of the pair; I told him, and he said if I would load the other he would take the pair; I loaded the other, and he took them; he inquired for small pocket pistols; the pair I sold him were small, self-cocking ones; this pistol is one of the same kind; they are good pistols; suppose they would shoot through an inch plank, two feet from the muzzle; I loaded each of them with powder and ball, and put caps on them; they were fully prepared for use; did not observe whether he put them in his pocket; do not recollect that he said he wanted pistols that were certain, or any thing of the kind; there was some conversation that I do not remember. Mr. CRITTENDEN (for the defense) here stated that he desired to introduce Mrs. R. J. Ward, to prove a single fact as explanatory of the necessity of this defendant arming himself, if the court deemed it admissible. This fact was, that some months prior to the occurrence of the principal fact they were now investigating, Mr. Sturges, the assistant teacher of Prof. Butler, had become so much embittered against this defendant Mr. ALLKN asked the court that, in speaking upon these points, the counsel might be confined strictly to the legal questions, and not allowed to argue the case itself. Mr. HELM I am very thankful to the prosecutor for any instruc- tion he may give me. As I am a young man, I stand peculiarly in need of it ! Mr. ALLEN Not at all, sir; but I am well aware that we are swivels here, fighting against twenty-four pounders, and I am desirous that they may be confined as much as possible. Mr. HELM Some of your swivels have been brought from so great a distance that I fear they will hardly repay first cost. Mr. CARPENTER Should that be the case, it will be our misfor- tune, not our fault, Governor Helm! THE COURT I trust the case may not be impeded by such remarks. They are quite unnecessary. Mr. HELM I am aware of it, but when the gentlemen talk about swivels and cannon, I think we have a right to retort. Mr. MARSHALL Well, this seems to be grape shot! (General laughter.) The defense now stated that they desired to introduce as a wit- ness, Robert J. Ward, jr. MATT. WARD CASE. 17 The prosecution objected, on the grounds that the proposed witness was jointly indicted as a principal, with the defendant, in this case. Mr. GIBSON cited various authorities in defense of the position. Mr. CRITTENDEN replied at length, contending that the testimony would be competent, and reading from a large number of authori- ties, on which he based his argument. Mr. GIBSON replied, after which THE COURT ruled the testimony admissible, having first reviewed the arguments offered on both sides. It seemed necessary to a fair investigation of this case, that the witness should be admitted, hie. credibility being a matter of fact for the jury to decide. Robert J. Ward, a brother and co-defendant, was sworn, and gave the full details of the affray. Then followed evidence on the custom to carry arms, as to which WITNESS said, I do not know. Mr. WOLFE Are you not armed now, sir ? Did you not arm yourself before you left Louisville ? WITNESS I shall decline to answer unless I am directed to do so by the court. The COURT The witness is not compelled to answer the question unless he sees fit. Direct resumed In our efforts to probe, did not follow the ball further than just beneath the skin; was with Butler, with the excep- tion of two intervals, until he died. To Mr. Wolfe Prof. Butler remarked, during his account of the matter, "I did not see who shot me." Mr. WOLFE You are a member of the Presbyterian Church, I believe, Dr. Thomson ? WITNESS I am ; have been for ten years. Mr. WOLFE Are you not a teacher in the Sabbath school? WITNESS I am, sir. Mr. WOLFE Is it usual for members of the church to carry arms? WITNESS I do not know; am not aware of any regulation in the church in regard to it. Mr. WOLFE What have you done with those pistols you had on your person yesterday ? The COURT You are at liberty to answer the question or not, as you please. WITNESS I decline answering unless I am under legal obligation to do BO. s 18 MODERN JURY TRIAIA A specimen of character evidence: Dr. James C. Johnston Have lived in Louisville about sixty- five years; have known defendant ever since he was a boy; he has always been very remarkable for his amiability of temper and courteous manners to every one; his health has been very precari- ous for many years; his frame is extremely delicate. Mrs. Judge Oldham, sworn Reside about three miles from Louisville; have known defendant for upwards of twenty years; his character for peacefulness and amiability, both as boy and man, has been unexceptionable and excellent. Mrs. Major Gfwinn, sworn Have known defendant intimately for twenty-two or twenty-three years; he has always been a kind and affectionate son and brother, and borne an excellent character for gentleness and peacefulness. George D. Prentice, sworn Have lived in the same city with Mr. Ward since his early childhood; have always known him well from general reputation, and for a few years past by intimate per- sonal acquaintance; have found him as mild, quiet and amiable a gentleman as I have ever known; he has been an invalid for many years, and often unable to go into the streets; have believed hirr to be a gentleman of spirit one who would be prompt to resent an insult, but remarkably quiet in his disposition; on account of his attention to letters, his character has been more generally known and discussed than that of most young men of his age; his letters were originally published in my own paper, the Louisville Journal, and my connection with him has been frequent and intimate; never heard but one opinion expressed in regard to his disposition; he was very feeble shortly previous to this occurrence, in November; he then walked with crutches. [Other evidence on the killing, death and character would be cumulative, and is omitted. It would not change the tenor of the story. A very little reflection on the order of proof will enable a student to follow the steps in a murder trial, from commencement to end, and retain them in memory.] Mr. Carpenter spoke eight hours to the jury, for the State, in most excellent language, and found its response in the audience, who studied the defendant carefully and waited with breathless anxiety for the stirring words and thrilling sentences of Tom Mar- shall, the great actor-advocate of the South. MATT. WARD CASE. 19 Here began an array of flowery passages and brilliant replies rarely equalled. [Tom Marshall was born 1801 and died in 1865; son of Dr. Mar- shall; the nephew of Chief Justice Marshall, a Southern orator of great renown; a relative on his mother's side of the Prestons, Blairs, Browns and Breckenridges, the oldest Kentucky and Vir- ginia families. He was over six feet in height, strong and grace- ful with all the graces of an orator, wit, humor, rhetoric and elo- quence, and for thirty years the most conspicuous advocate in Ken- tucky. In politics erratic; in habits inclined to intemperance; with a voice clear and flexible; a manner indescribable, at times grave, severe, chaste, and always original and effective. He could move or convulse an audience at will. He was a great master of lan- guage, and in early life was an industrious student. He mastered his profession and understood human nature and the effect of evi- dence and argument. No report of his speeches give his incom- parable manner of reaching a jury. He was a genius born to the law. " They talk of my astonishing bursts of eloquence (he said), and doubtless imagine that it is my genius bubbling over. It is nothing of the sort. I'll tell you how I do it. I select a subject and study it from the ground up. When I have mastered it fully I write a speech on it. Then I take a walk and come back and revise and correct. In a few days I subject it to another pruning and then recopy it. Next I add the finishing touches, round it off with graceful periods and commit it to memory. Then I speak it in the fields, in my father's lawn and before my mirror, until gesture and delivery are perfect. It sometimes takes me six weeks or two months to get up a speech. When I have one prepared I come to town, am called on for a speech and am permitted to select my own subject, It astonishes the people, as I intended it should, and they go away marveling at my amazing power of oratory. They call it genius> but it represents the hardest kind of work."] MR. MARSHALL said, "Gentlemen : In appealing to you, as the representatives of a merciful God, it appeared to me that it would have been quite enough for the gentlemen to consign the prisoner to an early and disgraceful grave in the midst of all his promise and all his hopes, without intruding such a rhetorical display upon him. It appeared to me, that after recommending him to such a grave, or, in case he should escape it, to the whips and stings of conscience on all occasions and in all 20 MODERN JURY TRIALS. climes, and to every horror that a distorted imagination has been able to depict, we might at least have been left to our fate, and spared the infliction of such a speech and such an appeal. And to crown the whole, you are gravely exhorted, out of simple mercy, to rescue us from the horrible phantoms that have been conjured up, by handing us over to the hangman! ******* " Attention has been directed to the past life of the accused, and this traveled young gentleman is graciously informed that he may commence his travels over again. But the permission is coupled with the assurance that wherever he may go whether he shall climb the rugged Alps and wander in the regions of Polar cold, or roam through the sunny climes of Italy and France, still every opening flower shall remind him of the flowers he has left blighted at home. Should he seek the blue ocean, we are told that each white cap will remind him of the shroud of his victim, and that in the boom of every surge, he shall hear the rattle of the death shot." Here follows a scathing review of the testimony throughout, and a running and witty comment on salient facts, with: " What Ken- tuckian will find him guilty who resented a gross insult to his brother before a class of his peers ? Would a true brother have done less ? It is not my duty to stir rudely the ashes of the deceased, but I put it in all candor, what ought he to have done f " And so on in that daring, defiant, yet chivalrous good humor, that he swept the audience with him like leaves in the wind. Com- ment had been made on witness Barlow as a carpenter, and Tom Marshall said, " why, I always consider one carpenter as good as another one brought away off from Campbell County to build a gallows to hang the prisoner on, the other to testify in his behalf!" " He had the right, and exercised that right of self-defense with which Nature has provided him. But what does this right mean, and how far does it extend ? It confers upon me the privilege of beating off any injury or infringement upon those inherent rights with which God and Nature have provided me. It gives me the right to exercise any means, to use any amount of force that may be necessary to repel such attacks. No man has a right to take my life; I may defend it and preserve it at any cost. But this is not all; a man's rights are not confined merely to the preservation of his life. He has others, many others, guaranteed by nature, that are nearer and dearer, and which it is his privilege and his duty to protect. Without these, life itself could have no charms; and had I no other right than the simple MATT. WARD CASE. 21 one of existence, I would raise my own wild hand and throw back my life in the face of Heaven, as a gift unworthy of possession ! I maintain that I have as much right to defend my personal lib- erty as my life; but the force to be used is only that necessary to repel the attack, and to prevent injury. Were this defendant to attack me, and attempt to chastise me, I would have no right to take his life, because he is an invalid, and so far inferior to me in physical strength, that I have no reason to apprehend any serious injury. But with a man of more powerful frame than myself, the case would be different. He has no right to attack me; I have a right to defend myself, and I may use just the amount of force necessary to do so. If I choose I may strike him with my fist. That would show a great deal of game; but if he were stronger than I, it would certainly tend to exasperate him, and render my chastisement six times as severe as it would otherwise have been. Perchance I may be able to seize a bludgeon, with which I can fell him to the earth, and thus protect myself. But if no such means are at hand, will any man, will any Kentuckian, tell me that I must stand and be beaten like a dog, at his discretion ? Certainly not. I may repel him and defend myself in any way I can, and if noth- ing else will prove effectual, I have a perfect right to cut his throat from ear to ear. I may use any amount of force whatever that is necessary; and this, as I understand it, is the law on the subject, as construed, applied and executed, throughout the land. I ask you to look at the facts in this case, and apply the law to them. Should he die for this ? Does this act make it necessary for that young prisoner to be stricken from the roll of living men ! Does it render him unfit to live, and a dangerous member of human society ? But if you think to mitigate his punishment, will you immure him within the walls of a penitentiary ? Will you cut those flow- ing locks will you shave that classic head will you snatch him from the bosom of his loving family tear him from the arms of his girl- wife and rudely sunder every tie that makes life dear ? Will you do this and call it mercy ? As the representatives of a just and merciful God, if you feel it your solemn duty to punish him, O, let him die! Talk not of mercy, while you inflict upon him a curse for which there can be no human parallel, a punishment to which death is nothing in com- parison. No, no! if you talk of mercy, show that mercy the prose- cutor spoke of this morning the mercy of the grave. O, give him liberty or give him death ! But the prosecutor seemed greatly afraid of mercy, and again and again he enjoined it upon you to 22 MODERN JURY TRIALS. show none. He thought that perhaps the ALMIGHTY might possess some, but of even that he seemed to be doubtful, and he charged you to beware that not a single feather should fall from the wings of the dove, to contaminate this jury box by its presence. * For the sad event that has occurred, we feel regret deep, last- ing, bitter. If that day's act could be recalled, no man on earth would do so much to reverse it as the prisoner at the bar. We sympathize deeply with the afflicted family, and lament the occur- rence that bereaved them. But we have felt, and we feel now, no such stings of conscience as have been described here. We have thrown ourselves for trial upon GOD, our Creator, and upon you, our country; and we have said " Not guilty," to this indictment, because we are not guilty of the crime it charges. The awful con- sequences of a verdict, such as it is in your power to render, appal us with horror but mingled with that horror there is no remorse there are no stings of conscience. Not guilty, we say, living; not guilty, we say, dying, and not guilty, we will ever say ! You have heard the character of this defendant proved and such a character! Did you ever know it surpassed ? Could there be one more mild, more gentle, more peaceful, and more universally beloved ? Men of all professions and occupations of every posi- tion in life have testified to the fact that this was true alike of the boy and the man. As he grew to manhood, perhaps from too close attention to study, his health failed, and he went abroad to regain it. And whatever your decision shall be, he has left behind a monument that will ever place his name high among men of intelligence and of letters. I allude to this volume; I suppose I may not read from it, for the gentlemen might object that it had not been offered in evidence; but it shows how my unhappy client has spent his time. And I owe him much for the gratification I have experienced, as I followed him in his wanderings, on hallowed and on classic ground. I have been with him down the beautiful Rhine, within the ancient walls of Aix-La-Chapelle, up the sluggish Nile, and on Mount Sinai's rugged brow; and, O, if I were permitted to read to you the thoughts and feelings that there swelled his breast, you would real- ize what a heart you are entreated to crush what a light of geniua you are asked to extinguish forever ! It were pitiful that he should die so young now in the full flush of his early manhood one so loved in the social circle, one looked upon so hopefully by the church, one who has proved him- self so glorious a genius and so fit to lead the young men of America it were a pity that he should die, even by the unrelent MATT. WARD CASE. 23 ing hand of disease, and when surrounded by all that he loves on earth. But to be cut off thus in such a cause to be sacrificed in response to such a wild, insatiate cry for blood as has been raised by this prosecution O, it were pitiful, it were marvellously pitiful! I have pleaded this case only by the law and the facts; but were I compelled to ask mercy, was there ever a case in which it could be shown with more propriety ? Yet I do not ask you to pardon there is no occasion for that. I ask you to do your duty, to exam- ine the case carefully, to see if you discover the elements of mur- der there, and then tell us if you can say that this young man shall die shall die a felon's death ! I know you cannot. I have spoken long, gentlemen, and perhaps have wearied you. I need not have consumed so much time, for I feel confident that the cause of my client is safe in your hands. I know that others are to follow me, the latchet of whose shoes I am not worthy to unloose; and if I have left any chasm in the argument of this case, I am sure they will fill it up. I thank you, gentlemen, and take my leave. Gov. HELM followed, in an able and logical speech for the defense, already doubly strong, very largely a legal argument. The concluding words were: " The case, gentlemen, is with you. I have endeavored to con- sider it in all its bearings, so far as my feeble condition would permit. I have only sought to explain fairly, both the law and the facts. And now, what are you called upon to do ? Will you consign this prisoner this unfortunate, but noble specimen of young manhood, for the fatal deed of a single hour, to a dark and dishonorable grave ? Or, if not, will you inflict upon him that other, but equally terrible punishment ? Have you the heart as he now stands, that fearful, insidious disease preying upon him, with one foot on earth, and the other trembling on the brink of eternity, to make him an outcast from the world, and confine him in a felon's prison ? " It would be only to lay him on a couch of suffering and disgrace from which he would never rise again. It would be only to banish him, during the short remnant of his life, from that kind mother, who, with anxious care and fondness, has ever watched over him, the pride of her heart, and the pledge of her first love; from that gentle, devoted young wife, who is bound to him by ties no less mysterious and vital than those which unite the Siamese twins, and the parting of which must lay them side by side, in one early grave. 24 MODERN JURY TRIALS. " In the name of that wife, in the name of that mother, in the name of simple justice and of common humanity, I ask you to give him back to life ! " The speech of NATHANIEL WOLFE, for the defense, abounds in apt and original matter, caustic and severe on opposite counsel, stinging and sharp in replies, and brilliant in original wit and happy illustrations. He denied the right of a teacher to whip a child, and said: "I endeavor to teach my children to love one another, and when they err, I take them apart and kindly tftll them of their fault do not attempt to disgrace and degrade them in the presence of the fam- ily. Thus, I hope, they learn to regard their father as a friend in whom they may confide an adviser on whom they can rely, and his house a refuge and a home, in all their childish sorrows. " Even if we go back to Greece that glorious old republic, whose light will continue to shine through the historic page, to the latest ages of time we shall find that this brutal practice, this relic of bar- barianism, was ignored in their schools. Chastisement was then believed, as it really is, the father's prerogative. As so many inci- dents on this subject have been related by the gentlemen, perhaps I may be permitted to allude to one. Plutarch, in his celebrated ' Lives of Distinguished Men,' tells us of one of his tutors named Amoneus, who, when one of the boys under his charge had done something wrong, took his own son and whipped him in their pres- ence, to reprove them, and to show what he would have done, had the laws of his country allowed it. "The brave seamen of our navy were once scourged for every trivial offense; but Congress has abolished the barbarous practice, as debasing and degrading to the character of a free man. In the British navy the same is true; and throughout this whole country there is a settled sentiment against this punishment." He cited the following cases: In the Jefferson Circuit, a few years ago, Coon was tried for the murder of Shaeffer. The latter had insulted Coon's wife, and Coon went to obtain redress. He told Shaeffer of the insult, whereupon he raised his arm, as Coon thought, to strike him, though it after- wards appeared that his hand only contained a small piece of wood. Coon then plunged a file into him, and it immediately proved fatal, yet the jury sustained his conduct. The case of Owen, charged with the murder of Haire, caused so much excitement in Louisville, a few years ago, that it was neces- MATT. WARD CASE. 25 ary to obtain a change of venue to secure a fair trial. The parties slept in the same bed; in the morning Haire missed some money, and accused Owen of taking it. Owen asked an explanation; it was refused, and he prepared himself with a pistol before they met again. Haire, I believe, also had a pistol, but Owen shot him; and was acquitted on the ground that he had a right to obtain redress for the injury done his character. The gentleman has given you a Scriptural illustration, comparing himself to David, who, as he tells you, went out to fight against the Philistines, armed only with a shepherd's sling and seven smooth stones. Now we, I presume, according to his comparison, are the Philistines; but the gentleman seem to be rather unfortunate in his Biblical recollections. He must remember it was against Goli- ath that young David went; and that it was Samson who fought with the Philistines, slaying three thousand of them in one day, and that, too, with the jaw-bone of an ass. And I can only express a devout hope that I am not to meet with a similar melancholy fate, and be ruthlessly slaughtered here, by the same dangerous weapon ! (Prolonged laughter.) Having the jury at his will, he read them two beautiful passages: " I stand upon the summit of Mount Sinai. What endless food for memory and association in the thought! To trace the course of Moses up to the sacred mountain to visit the scene where OUT Lord deigned to hold converse with his servant to feel yourself on Mount Sinai, upon which rests all that is earliest learned in childhood, and most dearly prized by man, is worth a lifetime's weary pilgrimage. I forgot fatigue, anxiety, and all the weariness of the desert. I could only remember that I was upon Mount Sinai. Go there, if you would feel as your never felt before. Go read, as I have done, the decalogue upon the very spot where Moses received it from the hands of the Almighty. Enter the cleft in the rock into which Moses fled as the glory of the Lord passed by. Remember that fearfully sublime scene, when there were thunderings and lightnings and a thick cloud upon the mount; when Moses brought forth the people out of the camp to meet with God, and the Lord descended upon the smoking mountain in fire; when the voice of a trumpet sounded long, and waxed louder and louder as Moses spake, and God answered him with a voice and tell me if the memory treasures another emotion like this. " I have wandered with delight over the battle-field of Wagram, where Napoleon brought to his feet the most powerful monarch of 2 MODERN JURY TRIALS. the world. Leipsic had a melancholy charm for me, as the spot where Fortune united with allied Europe to put down her petted favorite. I felt a deep interest in gazing upon the plain of Water- loo, where that gigantic power expired, which had toppled kings from their thrones and made emperors tremble. These, thrillingly interesting as they were, are but scenes in the destiny of a man. Great as he was, he was but mortal. But Mount Sinai is hallowed by the presence of God himself it is the first scene connected with the salvation of man through the intervention of his Maker." Permit me, gentlemen, to read you, in conclusion, an extract from a letter written from that scene of the deepest interest to man the world has ever known the Mount of Calvary: " A man's deep emotions on visiting the church of the Holy Sepulchre are chilled, not smothered, by the glare and glitter of the tasteless ornaments and images that load the hallowed spots within. I turned at once to Calvary, and mounted the steps where our fainting Saviour toiled up the rocky hill, when, turning to the women that bewailed and lamented him, he said, in mournful for- getf ulness of his own sufferings, ' Daughters of Jerusalem, weep not for me, but weep for yourselves and for your children! ' I stood upon the spot where our Lord was nailed to the cross the rock in which the cross was planted was before me; and amidst the gloom and silence of the dimly-lighted chapel I could almost imagine the fearful scene of the crucifixion, when 'the sun was darkened, and the veil of the temple rent in the midst.' I could almost see the two malefactors that were crucified with him, 'on either side one, and Jesus in the midst.' I could hear the hootings and revilings of the enraged multitude, and that beautiful senti- ment of forgiving meekness 'Father, forgive them; they know not what they do.' I could see the crowds of women that had fol- lowed him from Galilee, 'beholding afar off,' and witness the fierce determination of the soldiers. I could hear that cry of mortal agony ' My God ! my God ! why hast thou forsaken me ? ' And all was over. What could be more impressive than such recollec- tions in such a place ? "My heart was softened even to weakness, and I could almost have wept; for that religious fervor, which even the most worldly may feel on Calvary, was blended in my heart with the feeling of earth most akin to heaven a son's devotion to his mother. The Bible, from which I read the mournful story of the cross and pas- sion, was her parting gift. It flooded my heart with hallowed associations thoughts of her and of heaven were blended in my MATT. WARD CASE. 27 soul, and purified each other. It recalled the never-to-be-forgotten instruction of my early childhood, when, leaning upon her lap, I heard from her loved lips explanations of the holy events of which I now read, upon the very spot where they occurred. It recalled the recollections of later days, when, side by side, we sat in the vil- lage church the exquisite music of those simple hymns, that we sang from the same book, seemed again to swell upon my ears, and I was a child in feeling once more. And, whatever may have been my course since, those early impressions of piety have never been effaced, and the religious associations connected with those blissful days of innocence I now found had not died, but only slumbered, and but required a sacred spot like this to start into life, linked with a mother's holy name." Gentlemen, it is impossible that a heart like that of the prisoner, depicted in these lines, is capable of entertaining malice. His devo- tion to his fellow men, his devotion to his mother, his devotion to his GOD, all, all forbid the idea that he is capable of entertaining malice against any human creature. The act with which he is charged was the result of dire necessity, it was not an act of will- fulness. Gentlemen, the fate of my client will soon be committed to your hands. What a responsibility will then rest upon you! Life or death is involved in the issue! What inexpressible joy a verdict for life will bring with it! This beautiful world will to him, as well as to those who are bound to him by such tender ties, present scenes of happiness and gladness. But oh, what gloom, what sad- ness, what misery would a verdict of death bring with it ! That young and beautiful wife, the partner of his former joys, the par- ticipator of his woes, to know that her husband is to be assigned to an ignominious grave ! That mother, whose life has been a life of devotion to him, to have her heart riven by sorrow that can never be subdued that family and wide and extended circle of friends, of which he is the rose and pride, to be crushed down for ever ! I cannot anticipate such a result. The evidence will not warrant such a verdict, and such an one will not, can not, be ren- dered by you. The achievements of this young man in the field of literature are part and parcel of the greatness of Kentucky. The emanations of his mind have added fresh glory to the history of our State, which the patriotic devotion of his ancestry had already rendered so illus- trious. I leave him with you. I have done. 28 MODERN JURY TRIALS. Here followed a long and excellent argument of Governor Critten- den, in a chaste and dignified analysis of the case from end to end. His exordium was graphic and effective on the right of trial by jury, the solemnity of the occasion, and impressive on the' leading circumstances. He was convincing in his logic, clear in conclu- sions, and powerful in his appeals. [John J. Oittenden was born in 1789, and died in 1863. He filled, during his eventful life, the positions of Congressman, Gov- ernor, Attorney-General of the United States under Harrison and Fillmore, was United States Senator^, appointed United States Supreme Justice by President Adams, a soldier in the war of 1812; above the medium height, erect, muscular, dignified, with genial and attractive manners; the most successful advocate in Kentucky, a fine lawyer, and a rare judge of men; of superb courage and tem- per and the highest personal honor. His art was persuasiveness. He won his cases by his candor, character, fairness and deferential obedience to the rights of others. He spoke as a gentleman to gen- tlemen, and never used harsh things to harrow the feelings of a jury. He understood mankind. He was clear. He aimed to be candid and to be comprehended. He could bring tears to his own eyes or his auditors', but they were heart-felt, earnest and honest expressions of his belief. He won his cases fairly.] Here is a passage of his on self-defense: But where a man in sudden affray is beaten or assaulted in such a manner as to peril his life, or place him in danger of great bodily harm, when there is no other way of escape, he has a right to kill his adversary, and the law calls it justifiable homicide killing in self-defense. The law is very tender of human life, and, therefore, homicide, even in self-defense, is spoken of by the English authori- ties as ".excusable rather than justifiable." And thus the definition of it given by Lord Bacon is, "A blamable necessity." Yet though blamable, it is a necessity, and it excuses and acquits the party. It is described as "that whereby in a sudden broil, or quarrel, a man may protect himself from assaults or the like, by killing the one who assaults him." But it must not be used as a cloak for a revengeful and wicked heart, for we are explicitly told that we may " not exercise it, but in cases where sudden and violent suffering would be caused by waking for the intervention of the law." * * * After an exhaustive speech to the jury, he concludes: MATT. WARD CASE. 29 In examining these facts, may not one judge of them more kindly, and hence ascribe better motives than another? The consideration of the facts and the causes that produced them, is the proper place for mercy to be applied. The law says the murderer shall be pun- ished; but it is your province to ascertain what constitutes the mur- derer. You have a solemn duty to perform, and I want you to perform it. I want you to perform it like men like honest men. I ask your sober judgment on the case, but it is right for that judgment to be tampered with mercy. It is according to the principles of law, one of whose maxims tells you " it were better for one hun- dred guilty men to escape than for an innocent one to be punished." Is not here your commission for mercy ? It is alike your honest minds and your warm hearts that constitute you the glorious trib- unal you are that make this jury of peers one of the noblest institutions of our country and our age. But the gentlemen would make you a set of legal logicians calculators, who are to come to your conclusion by the same steps a shop-keeper takes to ascertain the quantity of coffee he has sold by the pound. That may be a jury in name, but it is in nothing else. But I wish to call your attention to another fact that figures in this case. Mr. Carpenter, with more adroitness than Mr. Gibson, but with less scrupulousness, has attempted to create a prejudice against this prisoner, by speaking of his family as aristocratic as believing themselves better than ordinary mortals. I suppose I feel no personal offense at this, for I have always belonged to that class usually called *' poor men." But, in this country, no man can be above a freeman, and we are truthfully told that "poor and content is rich enough." * * * In conclusion, gentlemen, I beg leave to call your attention to an important consideration, bearing on the whole case, and affording a key, I think, to the heart of this young man. I allude to his gen- eral character and disposition through life. I need not recall your attention to what we have shown it; it is all perfect in your recol- lection. I have no occasion to exaggerate; he has shown, in the clearest and most conclusive manner, a character of which you or I, or any man living, might be proud. As in boyhood, so in man- hood. His riper years only exhibited to the world the amiable and lovely and genial traits of the boy, more illustriously developed in the man. I am one of those who believe in blood, and in consistency of character. Show me a man that for twenty or thirty years hai 30 MODERN JURY TRIALS. been kind and honest and faithful in all the relations of life, and it will require a great deal of evidence to induce me to believe him guilty in any instance of a gross and outrageous wrong. You have seen the character of this man, from his earliest boyhood so kind so gentle, so amiable ever the same, at school and at college, in the city or in the country, among friends or strangers, at home or in foreign lands. There was no affected superiority. You see how many mechanics and artisans have been his constant associates and friends. With health impaired, and with literary habits never seen in drinking saloons or gaming houses his associations with men of all classes he has ever b^en the same mild, frank and unoffending gentleman, respecting the rights of others and only maintaining his own. This is the man you are called upon to con- vict. His act was an unfortunate one, but it was one he was com- pelled to do. And though he has been misrepresented and reviled and wronged, I trust it will be your happy privilege, by a verdict of acquittal, to vindicate his character in the eyes of all good men, and restore him to that family whose peace, happiness and honor are at stake on your verdict. Your decision must cover them with sorrow and shame, or restore them to happiness that shall send up to Heaven, on your behalf, the warmest gratitude of full and over- flowing hearts. Gentlemen, my task is done; the decision of this case the fate of this prisoner, is in your hands. Guilty or innocent life or death whether the captive shall joyfully go free, or be consigned to a disgraceful and ignominious death all depend on two words from you. Is there any thing in this world more like Omnipo- tence, more like the power of the ETEBNAL, than that you now Yes, you are to decide; and as I leave the case with you, I implore you to consider it well and mercifully before you pro- nounce a verdict of guilty a verdict which is to cut asunder all the tender cords that bind heart to heart, and to consign this young man, in the flower of his days and in the midst of his hopes, to shame and to death. Such a verdict must often come up in your recollections must live forever in your minds. And in after days, when the wild voice of clamor that now fills the air, is hushed when memory shall review this busy scene, should her accusing voice tell you you have dealt hardly with a brother's life that you have sent him to death, when you have a doubt, whether it is not your duty to restore him to life. Ch, what a moment that must be how like a cancer; will that remem- brance prey upon your hearts ! MATT. WARD CASE. 31 But if, on the other hand, having rendered a contrary verdict, you feel that there should have been a conviction, that sentiment will be easily satisfied. You will say: "If I erred, it was on the side of mercy; thank GOD, I incurred no hazard by condemning a man I thought innocent! " How different the memory from that which may come in any calm moment, by day or by night, knock- ing at the door of your hearts, and reminding you that in a case where you were doubtful, by your verdict, you sent an innocent man to disgrace and to death. Oh, gentlemen, pronounce no such verdict, I beseech you, but on the most certain, clear and solid grounds. If you err, for your own sake, as well as his, keep on the side of humanity, and save him from so dishonorable a fate preserve yourselves from so bitter a memory. It will not do then to plead to your consciences any sub- tle technicalities and nice logic such cunning of the mind will never satisfy the heart of an honest man. The case must be one that speaks for itself that requires no reasoning that without argument appeals to the understanding and strikes conviction into the very heart. Unless it does this, you abuse yourselves abuse your consciences, and irrevocably wrong your fellow man, by pro- nouncing him guilty. It is life it is blood with which you are to deal; and beware that you peril not your own peace! I am no advocate, gentlemen, of any criminal licentiousness I desire that society might be protected, that the laws of my country may be obeyed or enforced. Any other state of things I should deplore; but I have examined this case, I think, carefully and calmly; I see much to regret much that I wish had never hap- pened but I see no evil intentions and motives no wicked malignity, and, therefore, no murder no felony. There is another consideration of which we should not be unmind- ful. We are all conscious of the infirmities of our nature we are all subject to them. The law makes an allowance for such infirmi- ties. The AUTHOR of our being has been pleased to fashion us out of great and mighty elements, which make us but a little lower than the angels; but he has mingled in our composition weakness and passions. Will he punish us for frailties which nature has stamped upon us, or for their necessary results ? The distinction between these, and acts that proceed from a wicked and malignant heart, is founded on eternal justice; and in the words of the Psalmist, "He knoweth our frame He remembereth that we are dust." Shall not the rule He has established be good enough for us to judge by ? Gentlemen, the case is closed. Again I ask you to consider it well, before you pronounce a verdict which shall consign this pris- 82 MODERN JURY TRIALS. oner to a grave of ignominy and dishonor. These are no idle wordi you have heard so often. This is your fellow citizen a youth of promise the rose of his family the possessor of all kind and vir- tuous and manly qualities. It is the blood of a Kentuckfan you are called upon to shed. The blood that flows in his veins has come down from those noble pioneers who laid the foundations for the greatness and glory of our State it is the blood of a race who have never spared it, when demanded by their country's cause. It is his fate you are to decide. I excite no poor, unmanly sympa- thy I appeal to no low, grovelling spirit. He is a man you are men and I only want that sympathy which man can give to man. I will not detain you longer. But you know, and it is right you should, the terrible suspense in which some of these hearts must beat, during your absence. It is proper for you to consider this, for in such a case all the feelings of the mind and heart should sit in council together. Your duty is yet to be done; perform it as you are ready to answer for it, here and hereafter. Perform it calmly and dispassionately, remembering that vengeance can give no satisfaction to any human being. But if you exercise it in this case, it will spread black midnight and despair over many aching hearts. May the GOD of all mercy be with you in your delibera- tions, assist you in the performance of your duty, and teach you to judge your fellow-being as you hope to be judged hereafter. Counsel would have you tell the Judge of the quick and dead, when you stand at His tribunal, how manfully you performed your duty by sending your fellow man to the gallows ! He apprehends that it will go a great way to insure your acquittal there and your entrance to the regions of eternal bliss, if you are able to state that you regarded no extenuating plea took no cognizance of the pas- sions and infirmities of our common nature showed no mercy, but sternly pronounced his irrevocable doom. I understand that it would be more likely to send you in a contrary direction. I understand that a lack of all compassion during life will hardly be a recommendation there. I understand that your own plea will then be for mercy; none, we are taught, can find salvation without it none can be saved on their merits. I have somewhere heard or read a story from one of those tran- scendent German writers, which tells us that when the Almighty designed to create man, the various angels of his attributes cam* in their order before Him and spoke of his purpose. Truth said: " Create him not, Father. He will deny the right deny his obli- gations to Thee and deny the sacred and inviolate truth crea** MATT. WARD CASE. 33 him not." Justice said: "Create him not, Father. He will fill the world with injustice and wrong he will desecrate Thy holy temple do deeds of violence and blood, and in the very first gene- ration he will wantonly slay his brother therefore, create him not." But gentle Mercy knelt by the throne and whispered: " Create him, Father. I will be with him in all his wanderings L will follow his wayward steps and by the lessons he shall learn from the experience of his own errors, I will bring him back to Thee." "And thus teach, O man, mercy to thy fellow man, if thou wouldst bi-ing him back to thee and to God." Mr. Allen, in closing for the People, said: My experience in criminal trials, perhaps, has been considerably extended for a man of my age; but I can honestly say that I have never seen a jury in any case manifest such patient attention, and exhibit so little levity and carelessness as you have done. It indi- cates, to my mind, that you appreciate fully the position both of the State and the prisoner at the bar; and that while you receive so readily the great lights which have shone upon the case, you will not reject the feeble glimmer of the one that is yet to come, ;.ml which, to the best of my ability, shall only be thrown upon i !ie law and the testimony. It is the duty of the Commonwealth to take upon herself the whole burden of establishing his guilt, and it is your duty, gentle- men, to construe all reasonable doubts in his favor. You have heard this principle laid down in the vague and general terms of " all doubts;" but had the gentlemen read a little further from the old Irish authority he quoted, in the very next sentence he would have found it qualified so as to read " all reasonable doubts." It is impossible that juries should act on positive certainties. All information you can obtain in regard to the commission of any crime, upon which you are to decide, must be from those who wit- nessed it; and if one hundred men will swear positively to the same fact, you must even then have some doubt. It is true, you may believe it, and will then have good reason to do so; but the very term belief always implies doubt; knowledge that no doubt ;>xists. But if, in this case or in any other case, we prove the facts claimed, by good and competent witnesses, it is your duty to convict, even though some doubt may exist, for it cannot come within the bounds of a reasonable doubt. Governor Helm set out with the proposition that a man with as good character as the defendant, cannot have had the wicked and depraved heart that is necessary to the commission of a murder. I 3 34 MODERN JURY TRIALS. wish to argue this case with fairness and candor; and I admit freety that I never in my life heard a better character proved, and I never expect to. But the human heart who can know it? We are told by the volume of inspiration that it is " deceitful above all things and desperately wicked." And however good the character of this accused may be, that fact alone cannot overbalance the clear and conclusive testimony of the case. Character is only to be taken into consideration, for the benefit of a prisoner, in doubtful cases, where the mind of the juror is otherwise left in uncertainty by conflicting or imperfect testimony. One of my associates has alluded to the great case of Webster. When on trial he proved a good character nearly as good as that shown by the prisoner at the bar. He proved it by ministers of the gospel as well as ministers of the law and by men of almost every calling and position in life. Yet he was convicted; and before his execution he fully confessed, not only that he committed the murder to escape the payment of a small sum of money, but that, after he had done the deed, he deliberately cut in pieces the body of his victim, and burned it! It is called the Code of Honor; and the worst feature of this bloody code is, that it constitutes every man the judge and avenger of his own wrongs. It was this principle that actuated the accused this motive that caused the awful deed. It was this that induced him, when, as he thought, a member of his family had been insulted, to go and disgrace the teacher, or take his own redress. And, as I have already shown, the insult was only a fancied one; it is the duty of the teacher, when the boy is" guilty of any crime, to punish him for it and inform him of it. It is just as necessary for boys to be punished when they do wrong, as for men, when they do. " But," says Governor Helm, " he took the smallest pistol in the whole store a mere pop-gun therefore he could not have intended to take life." But you must remember that the size of the weapon only rendered it the more easily concealed that it was a self- cocking pistol perfectly adapted to a close fight. And Mr. Gill- more, who sold it, informs you that this " pop-gun," as the gentle- man calls it, would send a ball through an inch plank! Does this, or does the result which it produced in the fatal occurrence, indi- cate that it was not a deadly weapon. They say, gentlemen, that the right of self-defense is a sacred one that it has been conferred upon us by our nature and our Creator, and cannot be taken away by human legislation. I cordi- ally agree with them, that the right is a high a holy- an inestim- TRIAL OF MARY HARRIS. 35 able one. I believe that all should enjoy it and be protected in it. But you should be very careful not to permit men, under the color of self-defense, to commit an outrage to take measures that must call out an attack and then, to kill their adversary. I regard this right as highly as any man who has lauded it in your presence; but, gentlemen, as you hold it dear as you would preserve it sacred and inviolate beware that you do not suffer it to be trifled with. Mr. Wolfe puts a strong case to you. He asks, if a man has slandered your family, in a peculiar and most aggravated manner, if you have not a right, under the laws of this land, to go to him, and revile him and curse him; and, then, if he attempts to chastise you for it, to shoot him ? I promptly answer, No. If he slander you, the law gives you your remedy, by an action for slander, and does not authorize you to become the judge of your own wrongs. If he slander your family, the same is still true. The law recog- nizes no right to exercise violence on the part of the citizen, except in case of self-defense. The remarks of Mr. Allen were continued at length in this man- mer, and are both effective and candid. The Court gave a brief and impartial charge to the jury, who promptly returned with a verdict of "Not Guilty" At the announcement of the verdict great emotion was manifested, joy mingled with tears and hand- shaking, and a prompt motion for the discharge of Robert Ward, which was granted, and dispatches wired to the New York Herald and the leading Southern papers. TRIAL OF MARY HARRIS. Held July, 1865, at Washington, D. O This is one of the most romantic of the celebrated jury trials in this country; interesting alike to laymen and lawyers throughout the United States. The story, as detailed by a large number of witnesses, the character of the parties and their relations lead- ing to the final tragedy, and famous trial, can be best furnished through a rather lengthy but truly elaborate and exhaustive hypo- thetical question, which is a terse statement of facts, and the able 36 MODERN JURY TRIALS. and eloquent arguments of counsel, which give the facts a unique and appropriate shading. The case was remarkable for its location, the large number of distinguished visitors to the accused while in prison, the." White House bouquet," the singular evidence of a leading counsel sworn for Miss Harris, and lastly, the effect of the impassioned appeal to the jury for mercy, seldom equalled in any argument. The candid, convincing manner of Mr. Bradley, the able and exhaust- ive logic of Judge Hughes, the caustic remarks of Mr. Carrington, are all commendable; but the speech of Mr. Voorhees was elo- quent. The closing argument for the defense by the Senator from Indiana, created a profound sensation; holding the closest attention of all in the crowded court room filled witlf distin- guished visitors for two hours, nearly all of which time many in the audience were moved to tears; ladies fainted; strong men wept like children; others leaned forward to catch the slightest syllable, and hung spell-bound upon the speaker's words. Personally, Mr. Voorhees is tall, erect, strong, florid faced, with light hair, dark eyes, highly rhetorical in style, often vehement and powerful in voice and gesture, at times reaching to a pathetic and touching delivery. His large form and general bearing give him a commanding and distinguished appearance. He wins by power, pathos and sympathy. There are times, in his loftiest flights, that his hearers will shudder and turn pale; but in this trial he grew tender and pathetic, and often persuasive. It was an ideal opportunity. The picture of a frail young girl, fair and affectionate, who was herself an appeal more eloquent than coun- sel's words. The ingenious allusion to the little bouquet that Mrs. Lincoln had sent to the prison cell from the White House was handled with graceful skill by the artful advocate. Nothing was lacking to give to the scene all the interest and attraction of a splendid tragedy a scene to be remembered for a lifetime. Mr. Voorhees has the requisites of a western orator: Earnestness of manner, point and vigor of speech, a rapid, sparkling stream of overflowing language, both thrilling and pleasing, moving and magnetic few men possess such gifts of forensic eloquence. The much-abused plea of emotional insanity was then in its infancy. The Cole-Hiscock and the Sickles cases had been won by it; but the public had not wearied of this singular defense. It has since grown more in public disfavor. But by it, hundreds are cleared. The public reasons from guesses; science often reasons otherwise. In a case like Mary Harris', the argument -vas apt and TRIAL OF MARY HARRIS. 37 effective. If ever a mind could be lost, there was occasion and room enough to argue a reasonable doubt. This case is reported at length, through the arguments of the learned counsel, as being peculiarly an example of how far the sur- rounding circumstances affect a jury's verdict. The admission of evidence is shown to be exceedingly liberal, the testimony of Mr. Bradley, a prominent counsel for the defense; the reference to dis- tinguished visitors at the jail; the broad scope of insanity reaching back to years of correspondence; the management of witnesses dropping a bad one, and crowding a willing enemy with curious questions all show skill and ingenuity of counsel. But the climax of the case is the eloquent appeal of Senator Voorhees. Nothing more beautiful in legal literature can be read than many portions of his pathetic and eloquent, picture of the growth of a pure girl's first affection, confidence and love. When the orator says: "He had carried her to the highest pinnacle of happiness and hope, she stood upon the summit of a glorious expec- tation; and all around her sunshine and gladness!" and when he added her own words of pathos: " O, Mr. Bradley, you should have seen me then! You should have seen me then; I was so happy ! " scores broke out in sobs and tears. By using every art forgetting not one single touching thought the orator swayed his hearers like forest limbs in the wind, until he came to those magic words: "In the name of Him who showers his blessings on the merciful, who gave the promise to those who feed and clothe the hungry strangers at their gates: Unlock the door unlock the prison door, and bid her bathe her throbbing brow once more in the healing air of liberty /" From that moment, such a spell came over all that they felt her freedom in the air. This statement by counsel to experts embraces a graphic history of Mary Harris: A little girl not more than ten or eleven years of age still in the dress of children of that age attracts the attention of a man almost old enough to be her father. She had very few advantages of mental or moral culture. He is an educated man, experienced in the business and affairs of life. They are thrown into daily association, he being engaged in mercantile business, and she, the little girl, in a millinery and fancy store, convenient to his place of business. He plays with her as a child; she sits on his knee and receives and returns his caresses. Two years or more pass by, during which this intimacy continues between them, he being the trusted friend of the lady by whom she is employed, and is daily 38 MODERN JURY TRIALS. at the store. He fails in business, and then comes to keep and post the books of the little girl's employer. He has a difficulty in the church of which he was a member, and is expelled, and goes to this child, just budding into womanhood, for relief and sympathy. She believes him to be good good to her, at least but persecuted and reviled by the world. He is a Baptist; she a Roman Catholic. She now forms new associations. Prepared by his culture and instruction, she is admitted into the best and most refined and cul- tivated society of the city in which she lived. He leaves that city to seek employment elsewhere, and opens a correspondence with her, which he cautions her to conceal -from her employer. She is eminently open and truthful, yet at his bidding does conceal the correspondence. Her parents discover that this correspondence is going on. Her father is enraged Her friend's visits then are pro- hibited. She counsels with one of the most intelligent and culti- vated ladies, of ripe years, and having daughters of the age of the patient, and that lady consents to permit them to meet at her house. He is now the declared lover of the patient. Step by step, inti- macy between her and this lover had ripened into esteem, regard, and on her part the full confiding love of a woman who trusted everything to the man she loved; and she is formed, moulded, trained by his plastic hand in her habitudes of thought, morals, and manners. She is absorbed into, and in all things controlled by him. She yields him her homage; they are engaged to be married. He keeps her constantly advised of his plans and schemes. Fortune frowns on his efforts and he is too poor to marry. He prevails on her to leave her father's house and come to him in a distant city and seek employment there, in order that she may be near him; and she yields. Shortly after she returns to her home. Again he prevails upon her to leave the parental roof and come to him, and she does so. Her nervous organization is fine and delicate; her mental facul- ties largely and well developed; her sense of female pride acute and strong. She is pure and virtuous, and continues so to this day. Her bodily health is remarkably good. She has more than ordinary flesh; a fine, pure complexion, and good vision. Her temperament is full of life and spirit, and her life happy, joyous and gleeful. She has few associates, and those principally married ladies, or those older than herself. Her chiefest pleasure is her correspond- ence with him. Thus nearly five years are passed. In the mean- while three different times had been assigned for their marriage, and as often it had been deferred by reason of his want of means or employment. TRIAL OF MARY HARRIS. 3y He is about to leave the city where he is residing to come to Washington in search of employment. Their correspondence had begun November 1, 1858, and continued down to the spring of 1863. When he is thus about to leave her, the last seen of them together at the time, she was sitting on his knee, and he playing with her curls. Six months elapse. In the meanwhile he has succeeded in obtain- ing employment in one of the public offices here. She lives on in happy hope, and the summer passes without a ripple on her sum- mer's sea. He left his home in March. On the seventh of August, 1863, she received a letter from him, asking where he could see her. He had an interview with her, during the greater part of which he held her hand. What passed between them is not known, for no one heard what was said; but they seemed to part as ever friends. On the eighth of September following she received another letter, which she believed was written by him; and, on the fourteenth, a second, both begging her to meet him at a house of ill-fame. She inquired, and received clear proof that these letters, though written in a dis- guised hand, were written by him. On being convinced of this fact, she was greatly distressed, and became wild in her excitement. A few days after this she discovered that four days after the receipt of the first of these letters, and one day after the receipt of the second, he was married to another lady in the town where the patient resided. Within less than a week after this discoveiy, on the first return of the period mentioned in the hypothetical case put by the prosecuting attorney, she was so sick as to require the attendance of a physician. A skillful physician was called, and he treated her for the physical disease, but knew nothing of her per- sonal history, nor did he witness any mental disturbance. The sickness lasted but a few days, but her spirits were gone, her health was broken. She became silent, moody, melancholy; her flesh and strength wasted; her nights were spent in sleeplessness and tears. She went about her daily duties as usual, but with a broken spirit. Thus passed on two or more periods. At last her physician direc- ted that she should lie in bed till after she had had her breakfast. She then slept, as she had from the first of May, 1863, in the same bed with the lady in whose employment she lived as clerk, and in the same chamber with that lady's sister. There was a vacant chamber adjoining, in which there was no fire, and, against their remonstrances, she would get up from that warm bed and chamber, in the inclement climate of Chicago, in mid-winter, and go into that adjoining chamber in her nightclothes only, and sleep on the 40 MODERN JURY TRIALS. hare floor. During one of these periodical sicknesses, while the putient is still under medical treatment and required by her physi- cian to keep her bed till after breakfast, in the winter time, in the high northern latitude of Chicago, and while she is occupywig the same bed with the elder of the two ladies with whom she lived, she stealthily got up from the bed leaving the other, as she supposed, asleep softly dressed herself, and approached the bedside of her friend, and, believing she was still asleep, said, in a low tone, " I must leave you." The friend threw her arms around her neck and said: " Why, where are you going?" She answered, " I wanted to take a walk on the lake shore." It was then but the gray of the morning; not quite day. The friend restrained her forcibly, and prevailed upon her to undress and go to bed. Again, at another of the periods of her sickness, she was sitting at table with her two friends, her employers, between whom and herself there existed the most intimate relations of true and warm friendship and regard; the patient was sitting nearest the younger of her two friends, to whom, as nearer her own age, she always and undeviatingly showed warm affection, and with whom she had never quarreled; while thus sitting, the patient reached out toward this young friend, remarking, " Don't you want to read some fine letters?" or letter. The friend recognized the handwriting of the man who had so long corresponded with the patient and had bee: engaged to marry her; and she was familiar with all the facts as to the manner in which that engagement had been broken off, and th attempt made by him to get the patient into an assignation house. She had been with the patient at the time, and had never lost sight of her or been separated from her to this time; and seeing the let- ter in the handwriting of the same man, she replied, " No; I never want to see any of his writing, or any other such a fellow's; and I never wish to hear Burrough's name mentioned again as long as I live." In an instant the patient snatched up a carving knife and attacked her friend, who with difficulty made her escape, while the elder sister, a large and strong woman, restrained the patient, who is small and delicate, and was then wasted by sickness; arid after a severe struggle of several minutes, succeeded in getting the knife from her. The sister, who had fled, returned after a while, and the patient then insisted upon and attempted to get out of the window and to go upon the street, and was forcibly restrained by the two sisters. The elder, then thinking relief to her mind would be quicker by yielding to her, at last opened the door, and let her go into the street. It was late in the afternoon. She also directed the younger sister to follow and keep the patient in sight, but not TRIAL OF MARY HARRIS. 41 to approach her or let her see her. She did so, and saw her, after wandering around two or three blocks, stop a street car, advance to it, put her foot on the step, then turn away and walk quietly down the street. She followed her, and saw her enter the private, or ladies', entrance of the principal hotel in that city; then returned and reported to the elder sister. The two sisters then went for a gentleman, whose wife was a very warm friend of the patient, and who himself had much influence with her, an 3 they three went to the hotel and endeavored to prevail upon the patient to return home. They failed and left, leaving that gentleman to look out for her. Night was approaching, and she came home alone, com- posed, and " clothed in her right mind." This attack, or exhibi- tion of violence, was the longest in duration that had then occurred. In another return of her periodical sickness, without cause or provocation of any kind, she struck the younger of the two sisters several repeated blows over the head with the window-brush a heavy brush used to cleanse the store windows. At another time, during another sickness, she struck with a pin- cushion, that had a piece of brick in it to keep it in its place, a lady customer in the store, who had given her no sort of provoca- tion. At another time, whether during her periodical sickness or not does not appear, she purchased in Chicago a small-sized Sharpe's revolving pistol, with a case of cartridges, which she kept openly exposed in her trunk; and when asked by the elder of the sisters what she purchased that for, she replied, " Many ladies carry pis- tols;" and added her fear that the man who had deceived and deserted her, and his brother, had a plan to seize and carry her off, and she had this for her defense. She employed an attorney and counsel in Chicago to sue the man who had deserted and endeavored to entrap her. A writ was issued, but he could never be found. Her counsel urged and advised her to compromise. She refused, saying it was not money she sought, but the vindication of her character; that she had suf- fered in reputation, and desired to have that cleared up. She urged her counsel to come to Washington with her, and sue him here. He declined; and declined because he says her love seemed to have been turned to hate by the effort to get her to that assignation house; and when she recurred to that, she became so excited that he thought it would be dangerous for her to meet him, while at all other times she was calm. She herself then came to Washington from Chicago, alone, and 42 MODERN JURY TRIAL& without a protector, to institute a suit here. She visited the department where he was employed, and learned that he had that day gone with his wife to Chicago. She took the return train and travelled without stopping, and when she reached Chicago found that his wife had arrived there, but he had not. The two sisters removed from Chicago to Janesville, Wisconsin. She accompanied them. But change of scene, while it relieved and diminished the periodical exhibitions of a disturbed mind, did not cure it. Her life was the same; a brooding melancholy pervaded it. She performed all her duties as clerk and saleswoman, but she shunned society, and her spirits were gone; and periodically, some- times not every month, but in two months at furthest, these exhi- bitions were revived, but with less violence, until the latter part of December, 1864, when, while sitting with the two sisters, and a third sister who had been at work making an expensive patch-work silk quilt, she seized the quilt and began to cut and tear and destroy it. It required great force to get it from her, and she was taken to her chamber and securely fastened in. Prior to that, the elder sister, in hope that it would bring relief to her, had consented to furnish her with money to come to Washington, in order to insti- tute a suit here for breach of promise. On the first of January, 1865, she left for Washington, by the way of Baltimore, where the friends of the two sisters resided. She traveled alone. On reaching Baltimore she went to a respect- able boarding-house, where she was unwell with a bad cold, and was detained for three weeks, and then had her periodical sickness. On Saturday, the twenty-eighth of January, she communicated to a lady who occupied the same room with her, the history of her case. She had with her a large package of letters, which she said she had received from Burroughs. She told of his attempt to get her to that bad house. She read parts of the letters, extending, as she said, through five years. She stated that she was coming to Washington to see for herself whether he was here, before she con- sulted counsel; that she had attempted once before, and failed; that she had the name of a lawyer here whom she was to employ; that her sole object was to vindicate her fame and reputation, which had been injured by his desertion of her and his marriage with another. She spoke of him with tenderest regard, and said that until these last letters were written, he had been her best friend more than a father to her; but his desertion had injured her reputation, and she intended to sue him only to vindicate her character. This lady lay awake until after two o'clock Saturday night; then went to sleep, leaving the patient still talking, and TRIAL OF MARY HARRIS. 43 reading and handling that bundle of letters. On Sunday night the same thing occurred, except that she was then arranging the pack- age of letters which she was to carry with her to put into the hands of counsel. Long after midnight she was thus engaged; her room- mate went to sleep, leaving her thus occupied. She had made an arrangement with this lady to return by the three o'clock or half- past four o'clock train, and accompany her to a lecture to be deliv- ered that evening by Henry Ward Beecher. The lady who kept the boarding-house was a party to this arrangement, and procured for the patient a return ticket. In the morning the small Sharpe's pistol and a bundle of letters were lying on the bureau. She had shown the pistol to the lady who occupied the room with her, and made no concealment about it. While making her preparations, she was called suddenly by the keeper of the boarding-house and told she was late. She threw the bundle of letters into the trunk, and, instead of them, put the pistol into her pocket, and hurried down stairs; in company with the keeper of the boarding-house went down to. the cars, and thence came to Washington alone. She went to the Treasury Department, inquired for and opened the door of the room in which he was, and saw him distinctly. She was seen by at least one of the inmates of the room so distinctly as to enable her to identify her here in court, and who was so struck with her appearance at the time that she half arose to ask her to come in, when the patient closed the door. An hour or more after this, as the clerks were leaving the office, he came near, or passed her in the passage. She drew the pistol and fired. No one saw her fire, but there were three persons near by who saw her instantly after the shot was fired. The shot took effect on the deceased, who turned, saw her, exclaimed, " O my God!" and fled. She then cocked her pistol, leveled it in the direc- tion in which he fled, and when he was about twenty yards from her fired a second time, without effect, and he disappeared around a corner of the hall in which they were. She then turned and walked quietly down stairs and out of the building. She was very pale, very calm, very quiet, and there was a remarkable expression in the eye. She was arrested just outside of the building and taken back into it, and placed in a room with a policeman either at the door or in the room. By this time a justice of the peace had got to the room, and on his telling her he was a justice of the peace she immediately handed the pistol to him. Up to that time she had not shed a tear; she paced the room in violent agitation; tore her hair; knelt on the floor and sprang up; knelt to the justice and was raised by him more than once; her face was convulsed, but 44 MODERN JURY TRIALS. she shed no tear. Mr. McCullough, the present Secretary of the Treasury, came in and spoke to her. She asked if Burroughs was dead. He said he had often on the stage seen representations of mental agony, but he never witnessed the reality till then. She was still tearless. He fixed her attention for a moment and put two questions to her: one whether Burroughs had wronged her in any other way; the other whether she was a virtuous woman. She answered both rapidly, and relapsed instantly into the same i .\ ment. To the latter question she replied, solemnly and clearly, " As God is my judge, I am." She was on her knees, clinging to his clothes. He raised her more than once. Her exclamations were, chiefly, "Why .did I do it;" or, "how could I do it;" "I loved him better than my life;" "I would have died for him," etc., etc. The policeman was present during this interview. She was committed to jail, and he says that when on her way to the jail she told him that Burroughs had caused her to be driven from home and friends; that he had taken her to a bad house and had seduced her; that she had procured that pistol and came here to avenge the injury, and that she had doue so. He understood that she said she had got the pistol just before she left home, and came directly here for that purpose. The policeman cautioned her against making any statements, yet she persisted in doing so. During the whole time she was greatly excited, and when they reached the jail she was so exhausted that she had to be supported by him and others into the jail. For days after her commitment she paced the room in violent agitation. By the latter part of February she had calmed down. Two friends, a gentleman and his wife, from her old home in Bur- lington persons of education and large intelligence came to see her, the lady passing the greater part of her time for a week in the prison. She was so changed they would not have known her had they not conversed with her. She was changed in appearance, mind, and manner. This was during her periodical sickness. In the latter part of March, during that condition her pulse was about 110, and her hands were cold. She spoke incoherently of the death of Burroughs. On its recurrence in April, as on the previous occasion, she showed great insensibility to cold. Her pulse was nearly 120; the back part of her head very warm, and her hands as cold as if they had been in water. When speaking of any matter connected with this charge, the pupil of the eye was so dilated as almost to cover the iris. At times the face was fixed, and the eye fixed on TRIAL OF MARY HARRIS. 45 vacancy, as in, or similar to, cases of catalepsy. She did not believe ' Burroughs was dead; she said she saw him there; had frequently seen him in that chamber. She was with difficulty calmed down, and then she became cheerful. After a brief space the excitement returned; the pulse rose to near 120; the same condition of the face and eyes returned; she talked incoherently. This continued for half an hour or more, when she became composed. On the return of her sickness in May, the same physical condi- tion existed as in April, but in a much more excited form. Still greater mental disturbance was disclosed in her language and acts. She said she would not stay any longer in that prison; that she was going out; that bars could not restrain her. She exhibited great violence of manner. She fancied she heard dreadful cries and voices and shrieks. This occurred again in a less degree on tho next day, and on the third and fourth days after that. Her con- versation and language on these occasions showed that she thought and spoke of Burroughs as then alive, and she spoke of him in terms of endearment. In June, at the periodical return, there were but slight changes from her normal condition. During the intervals the patient is tirely possessed of her faculties, but is generally very quiet, and ftentimes melancholy with a temperament altogether changed from what it was up to the time of her disappointment in love. To the Doctor. Q. I will now ask you whether you think she has been, at any time up to this period, the subject of mental or moral insanity ? A. I have no hesitation in saying that, having reference simply -to the hypothetical case so minutely detailed by the counsel, Mr. Bradley, that the person labored under a deranged intellect, paroxysmally deranged, produced by moral causes, and assisted or increased by a physical cause, derangement of the uterus. EXTRACTS OF EVIDENCE, SHOWING SKILL IN EXAMINATION AND MANAGEMENT OF TRIAL. Louisa Devlin, sworn: By Mr. BRADLEY. Q. State where you were residing in the spring of 1863? A. I was at Chicago. Q. Were you engaged in business there, and if so, in what busi- ness ? A. I was engaged in the millinery and fancy business there. Q. State if you removed from Chicago at any time, and where you \vent ? A. I moved from Chicago in July, 1864, to Janesville, Wisconsin. 46 MODERN JURY TRIALS. Q. State if at any time you became acquainted with the defend- ant, and if so, when and where ? A. I became acquainted with the defendant in March or April, 1863, in Chicago. Q. State if she ever came to reside with you, and the .circum- stances under which she came ? A. She told me she had come to Chicago to look out for a situation. Q. Did she obtain one, and if so, with whom ? A. She did. I employed her the first of May, 1863, as a clerk. Q. State whether she has or not resided with you ever since, until her present visit to Washington ? A. Yes, sir; and she resided with me until she came on to Washington. Q. It is necessary, Miss Devlin, for the jury to understand the relations which subsisted between you. I will ask you whether she occupied the same chamber and the same bed with you ? A. Yes, sir; until she came here. Q. What was her position under you ? A. She was a clerk. Q. State what was the condition of the health of Miss Harris during the first five or six months; and after she came to live with ^- you ? A. Her health was good. Q. State what was her temper and disposition during that time ? A. Her temper was good and her disposition also., Q. How as to her spirits ? State whether she was lively or melancholy ? A. She was very lively in disposition. Q. What did you observe in regard to her going into society ? A. She went into no society whatever, except that that I was in, ' \ There were very few that we associated with. . Q. Did you at any time, during the period that Miss Harris was { living with you, see the- deceased Mr. Burroughs ? A. I did. I saw the deceased twice at our boarding house, in March, 1863, where she boarded. Q. Was she boarding at the same house with you ? A. Yes, sir. I saw him, also, twice at my store during that summer. Q. State whom he came to visit at that boarding house, and to whom he paid his attentions ? A. The first time I heard him in the hall at the boarding house, he asked for Miss Mary Harris; and when he came to my store he asked me for her. Q. Did you see them at any time during the interview between them ? A. Yes, sir; I saw them both during the interview at the boarding house, and in my store. Q. Did you learn from him or her, when both were together at that time, whether he was paying his attentions to her or not ? A. I never had any conversation with them. TRIAL OF MARY HARRIS. 47 Q. Did you at any time become aware of the fact that she received letters from him ? A. Yes, sir. Q. Did you ever see them ! A. Yes, sir. Q. Did you have an opportunity to read the letters, so as to become acquainted with his handwriting ? A. Yes, sir. Q. State whether, after she had been residing with you some time, you observed any change in Miss Harris; and state about the time when you observed such change ? A. Well, the change was after the marriage of Burroughs, in September, 1863. Previous to that time the cheerfulness of character which I have described, and kindly disposition continued. Q. You observed no change in character before the time of which you speak ? A. No, sir. Q. State as accurately as you can how that change established itself ? A. After the receipt of these anonymous letters, and feel- ing satisfied that it was Burroughs who wrote them, she became almost frantic, and at such times she would not know what she was doing or saying. During that' night she commenced to cry, and continued crying almost incessantly for two or three days. Q. How long did she remain in that condition ! A. For many weeks. That is, continued so almost incessantly for two or three days, and then at intervals for two or tree weeks; sometimes every night, and sometimes two or three nights in a week. Q. Did she, during that time, continue to occupy the same bed with yourself ? A. Yes, sir. Q. Do you recollect whether you called in the aid of any physi- cian at that time, and if so, who ? A. I did about a month after that time Dr. Fitch, of Chicago. Q. Up to the time you thus called in Dr. Fitch, had you noticed anything in regard to her sleep whether she slept soundly or not? A. She slept but very little. Q. State whether, after Dr. Fitch had been called in, and during the winter of '63-64, you remember any remarkable incidents in her conduct; and if so, repeat them as far as you can? A. When Dr. Fitch prescribed for her, one of his prescriptions was, that she was to sleep long in the morning. Q. Before or after breakfast ? A. After. Q. She was to have her breakfast in bed ? A. Yes, sir. One morning, when I had scarcely perceived it was daylight, I saw^her dressing. I said nothing; and supposing me to be asleep, after she was dressed she came to the bed, and leaning over me, said: "I have to leave you, but I am sorry to have to leave you." I put out my hands and caught her around the neck, and asked her what she 48 MODERN JURY TRIALS. was going to do. She would not tell me. I insisting on knowing, she then said she was going to have a walk on the lake shore. Q. Was she quiet in her manner at that time ? A. She was rather insensible. She looked to me as if she did not know what she was doing or saying. When I caught her around the neck, I t hought she was going to run out of the room. I then got her to undress herself and get into bed. Q. Do you now recollect what period of the year that was ? A. It was in November. Q. After that, do you recollect anything remarkable in her con- duct that happened during the same winter? A. Shortly after, she went into the yard one day with a large window brush, and struck my sister two or three times over the head, without any provocation whatever from her. Q. Do you remember any other incident during that winter ! A. Yes, sir. She was not feeling very well one evening, and she called me to the bedside, and held me by the wrists. I begged her several times to let me go; but no; she held me tighter, seeming to have more strength than usual. She held me for about a quar- ter of an hour. That she did several times. Q. Do you remember any other incident during that year, and before you went to Janesville ? A. I remember of many instances where she commenced to tear up books, clothing, and anything that she could lay her hands on. At another time she ran at my sister with a carving-knife, to stick her. That was the second Sun- day in January, 1864. Q. Do you know what had passed between them just before then, and what was the subject of conversation ? A. No, sir. We were at dinner, and without anything being said that could at all offend her, she got up and ran at her with a knife, to stick her. Q. You did not hear your sister make any remark to her yourself, before this attack with the carving knife ? A. No, sir. My sister often told me that she was crazy. Q. How did you manage to prevent her striking your sister with the carving knife? A. I held her by the shoulders. Then she tried to leap out of the window into the street. I had to open the door and let her go, but sent my sister out to watch where she went. She at first ran around the street, not apparently knowing where to go, but at last went into the Tremont House. I went and tried to get her home, but she would not come. It was then near dark; and when it got dark she came home by herself. Q. Was that the evening you got Mr. O. H. Harris to go after her? A. Yes, sir. TRIAL OF MARY HARRIS. 49 Q. He is no relation of hers, as I understand ? A. No, sir. - Q. Do you know of any subsequent instances of excitement before you went to Janesville? A. Yes, sir; many. One little instance that happened at Janesville, some eight or ten days before she came down to Washington, I remember particularly. Q. That was last December, then ? A. Yes, sir. My sister (not Jane, but another sister), having opened a handsome silk quilt that she was piecing, to show it to us, Miss Harris looked down at it, then took hold of it, and commenced tearing it. Q. Describe what kind of a quilt this was. A. It was a fancy silk quilt, pieced. Q. What did she say when she took hold of it ? A. She did not say anything. She seldom ever spoke when she was in those excited ways. Q. How was she prevented from tearing that quilt to pieces ? A. I took it from her, and then succeeded in getting her into her room, when she halloaed repeatedly, " Let me out, until I spread all the preserves in the house over the carpets." Q. State whether, on such occasions, you required any assist- ance in holding her, or whether her strength was the same as usual, or noi? A. Yes, sir; when in these spells, I had oftentimes to have assistance. Her strength was much greater on such occa- sions. Q. Now, we will go back to 1863. You say you have seen Mr. Burroughs' handwriting often enough to be able to distinguish it ? A. Yes, sir. Q. Were you in court yesterday, when the letters from Bur- roughs to Miss Harris were read ? A. I was. Q. Do you recognize them as any of the letters you heard read ? A. I recognized them all. Q. State whether this letter, dated Chicago, August 7, 1863 (handing witness the same), is in the handwriting of Mr. A. J. Burroughs ? A. It is. The letter was admitted, and read by Mr. Bradley, as follows: CHICAGO, August 7, 1863. DEAR MOLLIH I am again in town for a few days, and wish to *ee you. Drop me a note to Box 5982, stating where I can see you. Very truly, A. J. BURROUGHS. Q. State whether you saw that letter at or about the time it was received by Miss Harris, and where you saw it? A. I do not rec- 4 50 MODERN JURY TRIALS. ollect where I saw that letter, but she read me the letter, though at the time I did not see the handwriting. Q. Now, look at this envelope and the letter therein inclosed (handing witness the same), and state whether you saw.it at or about the time of its date ? A. I saw this on the day she received it. Q. In whose handwriting, in your judgment, is that letter 1 A. In my judgment, it is in the same handwriting as the others Bur- roughs.' Q. In the meanwhile, or immediately or shortly after the date ot that first letter, of seventh of August, had you seen Mr. Bur- roughs, and where did you see him ? A. I saw him about five or six weeks before he was married; the date I do not know. He called at my store to see Miss Harris. Q. State whether or not he had any interview with Miss Harris at that time? A. Yes, sir. He remained in my store then with her for about an hour, or an hour and a half. Q. Did you see him at the store at any other time ? A. Yes, sir; I had seen him at the store once before. Q. Are you able to say Miss Harris never saw him after this interview of which I speak ? A. Never that I know of. Q. State whether or not she was constantly in the store for months before the receipt of this letter ? A. She was. Q. Could she have left, so as to have had an interview with him anywhere? A. No, sir. She could not have been gone an hour without my knowing where she was. She and I went and returned from the store, and also remained and slept together. Q. State, as well as you can recollect, all in regard to this last lette I showed you this letter of September 12; where you saw it ana all the circumstances connected with it ? A. This letter I saw when it came in the house. Miss Harris brought it from the postoffice. She read it, and then remarked, " Who in the world couli. have written the like of this to me?" She read it first to m, and then I looked over it. I went and inquired what kind of a house it was; and, when I found out what sort of a place it was, I proposed to answer the letter, and find out who had written it. Q. Did she, or you, or any one that you know of, write any answer to that letter ? A. I wrote such answer, and signed her name. Q. Just state, in regard to that letter, whether that is, or not, in the handwriting of Mr. Burroughs? A. Yes, sir; I think it is. [Witness was handed letter dated twelfth of September, 1863, the handwriting of which she identified as that of Burroughs.] TRIAL OF MARY HARRIS. 61 Q. State when and where you first saw that letter ? A. This Miss Harris also brought in from the postoffice. Q. Did you see her open it, and see the contents of the letter ? A. Yes, sir. Mr. WILSON What is the date of that ? A. Twelfth Septem- ber. The letters referred to were then read, and offered in evidence. They are as follows : CHICAGO, September 8th, 1861, Miss MOLLT HARRIS, Chicago : DEAR MOLLY I am aware that it is stepping somewhat beyond the bounds of true propriety for a comparative stranger to address a note to a young lady, requesting her to meet him, but my hope is that you will excuse the presumption and accede to my request. I have had the pleasure of seeing you several times, but never have had the honor of an introduction. Now, my dear Molly, I have some things to say to you which I know you will be glad to hear, and I know of no better way to say them than for you to meet me, say on Friday, September llth, at 94 Quincy street, at one and a half o'clock in the afternoon. I am perfectly well acquainted with the lady who keeps the house, and I know we can talk there with- out interruption. You will, perhaps, have some hesitancy in com- ing, but you need not have, as I can assure you my sole motive in requesting the interview is that we may become acquainted, and that mutual friendship may result from it. I am confident I can convince you with a few words of conversation that my sole desire is to be your friend, and I think a meeting would do us both good. Will you come ? Do. If you would rather I would see you at some other place, write where, and I will come. If you think it improper to meet me, I hope you will at least answer this note and state your objections. Your friend, J. P. GREENWOOD. CHICAGO, September 12, 1863. DEAR Miss MOLLY Your favor of Thursday was duly received, and I was sorry to read that you could not come at the hour 1 appointed. Unfortunately, I had a previous business engagement at half-past three o'clock, which is my excuse for not coming. My engagement was of such a nature that it was almost impossible for me to neglect it. I should have been most happy to have seen you. I have been absent from the city since Friday night; have 52 MODERN JURY TRIALS. just returned this evening, and I now embrace the first leisure moment to say to you that I will see you on Tuesday, at half-past two o'clock, at the place formerly designated (94 Quincy street), provided it is perfectly satisfactory to you. I am very anxious to cultivate your acquaintance, which I think will result to our mutual good, and I hope you will grant me the privilege of proving to you that I desire only to be your friend. I will here say I have had the pleasure of seeing you several times, but never have had an introduction. If you cannot come at the time I have appointed, please say by note when you can come; or, if you prefer seeing me at some other place than 94 Quincy, if you will be kind enough to state the time and place I will, if possible, see you. Tour friend, J. P. GREENWOOD. Q. I understand you to say that you wrote the answer to that, and signed the name of Miss Harris ? A. Yes, sir. Q. What did you do with the answer to the letter of the eighth ? A. I mailed it myself. Q. Can you recollect whether or not you gave any instructions to the postmaster in regard to that letter of September 12, 1863? A. I showed the envelope and the address to the clerk in the post- office, and told him to look particularly at the person who called for that letter, and describe him to me when I called. He said he would do so. I told him to look particularly at his hand. Q. For what purpose did you give that instruction to the clerk ? A. For the purpose of identifying the person who wrote the letter. Q. Did you call at the postoffice at any time; and, if so, how soon after you had deposited that second letter? A. I deposited the letter on the twelfth, the day it was written. Q. When did you call for the answer? A. I called for the answer on Monday, the fourteenth. Q. Was that the next day? A. I deposited the letter on Satur- day, the twelfth, and on Monday, the fourteenth, called for the answer. Q. Who, if anybody, went with you when you called for that answer? A. I went first myself. Q. Did you afterwards go again the same day ? A. Yes, sir. Q. Did anybody then go with you? A. Yes, sir; Miss Harris. Q. State what passed between you in her presence in regard to the person who got that letter ? A. He described the man to ua TRIAL OF MARY HARRIS. 53 He said he was a man who weighed about 170 pounds; that he had black hair, a heavy black beard, a rather pretty hand for a man of his size, was of medium height, and on his finger wore a set ring. Q. Did he describe the ring ? A. He did. I do not remember the description, however, but Miss Harris turned round and said, " That is the ring I gave Mr. Burroughs ? " Q. Do you know whether or not, after this description was given, a photograph was exhibited to him? A. Miss Harris handed the clerk the photograph. Q. Is, or is not, that the photograph (handing witness a carte-de- visite) ? A. That is it. Q. What did he say when that was exhibited to him ? A. After looking at it, he said, "Well, yes," and then hesitated; but after- wards added, " I do not know, as the beard on this is higher than he wore it." I asked him how much higher. He said, " Well, I guess something about an inch." Q. Did he say anything about the dress ? A. He said that it might be the same person; that he could tell more accurately if this person was in the clothes he appeared in when he came to the postoffice. He said the person who called for the letter was in cit- izen's dress, with a heavy outside coat on. Q. Miss Devlin, you have seen him often enough to know whether that is his photograph or not? A. Yes, sir, it is. I saw him in his military uniform. Q. Where did you and Miss Harris go after the interview at the postoffice ? A. We went home. Q. Describe to the jury, as well as you can, what effect was pro- duced upon Miss Harris by this information. A. She got very much excited, and said she never thought he would turn out to be such a rascal. Q. Do you know, of your own knowledge, whether or not that same day she started to go out to the place where she supposed Mr. Burroughs to be? A. I went out on that same day myself (Mon- day, the fourteenth), to call upon the Rev. Dr. Burroughs, to know from him if his brother was in town. Q. After making this inquiry, what was done with Miss Harris that you know of ? A. Miss Harris, when she learned that he had been in town, was more confident that it was him. Q. Do you know whether she went herself to Dr. Burroughs and took letters; and if so, what letters ? A. She said she would go the next day and return his likeness, and all the letters she had of his, to Dr. Burroughs, and would let him know what a great rascal his brother was. 54 MODERN JURY TRIALS. Q. Did she leave your house ? A. She did Q. Did she take anything with her? A. She did; all the letters. Q. Did she take the two anonymous letters also ? A. Yes, sir. Q. How long was she gone ? A. I could not say exactly, but she might have been gone over two hours. Q. When she returned did she bring back all the letters, or not ? A. She brought them all back. She said she showed the anony- mous letters to Dr. Burroughs, and he tried to persuade her to think that it was not his brother who had written them She then said he acted in such a strange manner towards her, his hand trem- bled, and she thought there was some plot between him and his brother about the affair. She did not tell him she had these other letters, but concluded to bring them back again. It was on the fifteenth of September she went there. She also told me that she saw A. J. Burroughs coming in in the cars as she was going out; that he poked his head out of the cars and looked at her. Q. You mean the horse-cars running out to the University ? A Yes, sir. Q. Do you know whether she went with any one else; and if any one, who, to make further inquiries before she had gone to Dr. Bur- roughs, as to the identity of the person who wrote these letters ? A. Yes, sir; my sister and Miss Harris went to the assignation house on Quincy street. Q. Was that before or after she had been to Dr. Burroughs ? A. Before. It was the day that I went out. Q. State whether, when she gave you an account of her interview with Dr. Burroughs, she stated that she had learned from him that his brother, A. J. Burroughs, was in Chicago? A. She said lie said his brother was in Chicago for some time, but that he was not in Chicago at the time the first letter was written. He was not in Chicago on the eighth of September, and that he had left the second day before that for Washington. Q. Do you recollect ever having seen a pistol in the possession of Miss Harris ? A. Yes, sir. Q. State about what time as early a day as you can recollect when you saw that pistol in her possession. A. It was some time last fall; I cannot tell as to the day or the month. Q. State where and under what circumstances you saw it. A. I asked her what she had done with some money that I knew she had had. She did not tell me, but said she had bought something. A O C5 few days afterwards she showed me the pistol, and told me that was what she had done with the money. I asked her what she had bought it for> She said she was not the only lady who carried a TRIAL OF MARY HARRIS. 55 pistol. Shortly afterwards she said to me that she believed Dr. Burroughs and his brother had some plot against her. Whether she said it in reference to the pistol or not, I do not know. It was dur- ing that same day she told me. Q. State what she said about that. A. I asked her what plot they had ? She said it was to pick her up on the street and run away with her where she would never be seen. Q. Did you ever see any loose cartridges or powder in her trunk? A. Yes, sir. Q. At what time was that ? A. About the same time that I saw the pistol. I said to her, you do not know how to use it, what did you buy it for ? She admitted she did not know how to use it; and then showed me these cartridges as belonging to it. Q. Did you ever hear of her practicing with it in any way at all ? A. No, sir. I do not think she knew how to charge it. Q. Between what streets is No. 94 Quincy street ? A. I think it is between Monroe street and Adams. It is a small, very narrow street a kind of alley. Q. Did you or not make inquiries as to the reputation of that house ? A. I did. Q. What is its general reputation ? A. Bad. Objected to by the District Attorney, and objection overruled. Q. Did you communicate to Miss Harris, or did she with you ascertain what the character of that house was? A. I ascertained and told her. I told her that I was informed it was one of the worst assignation houses in Chicago. Cross-examination : By Mr. WILSON. Where did you reside before you went to Chicago ? A. In Baltimore. I resided there nine years. Q. Where did you reside prior to that time ? A. In Ireland. Q. When did you go to Chicago? A. In March, 1863. Q. What members of your family went with you ? A. One sis- ter Jane. Q. Where was your place of business in Chicago ? A. No. 186 Clark street. Q. Where was your residence ? A. I boarded on Monroe street. I forget the number. It was the fourth house from Clark street. Q. About what time precisely did you make the acquaintance of Mary Harris, and under what circumstances ? A. I met her in that boarding-house about a week after I went to it; and I went to it in the latter part of March, 1863. 56 MODERN JURY TRIALS. Q. Who introduced you to her? A. The lady ox ih boarding- house. Q. Had you ever known or seen her before that time T A. No, sir. Q. What was the name of the lady who kept the boarding-honse ? A. Mrs. Lacey. Q. How far from the boarding house was the store? A. Not more than a block. Q. Who were her friends there? A. She did not have any friends that I know of, other than the few acquaintances she formed in the boarding-house. Q. What books and newspapers was she in the habit of reading ? A. She did not read much, except newspapers. Q. What newspapers particularly? A. Well, I do not know that she read any in particular. She read any she got, I guess Q. What were her habits as to attending church ? A. She attended her church regularly. Q. Did you attend the same church ? A. Yes, sir. Q. How often during the week ? A. Every Sunday. Q. How often during the day? A. Once or twice a day; some times three times. Q. Did you ever attend on week days ? A. Not usually. Q. Did she have any attendants any beaux, any admirers ? A No, sir. Q. Did you ever know of her going out into society to parties f A. She has been to the theatre a few times; that is all. Q. Who did she go with ? A. Some of her friends from Bur- lington. Q. Young gentlemen ? A. Yes, sir. Q. Who were they ? A. I have heard their names been intro- duced to them; but really I have forgotten. Q. How many times do you suppose she went to the theatre ? A. Only five or six times a year. Q. Did you go with her ? A. Sometimes I went with her. Q. Did you ever, during that time, see any exhibitions of ill- temper ? A. None at all. Q. Did you ever hear any impatient or hasty remarks during that time ? A. No, sir. Q. Did you ever know of her being particularly unwell during that time ? A. No, sir; only once she had a sore throat. Q. Have you heard her make any complaints in regard to her health during that time? A. Yes, sir; a little. TRIAL OP MARY HARRIS. 67 Q. Was there any difference in her behavior at such times ? A. No, sir. Q. Any change in her spirits ? A. No, sir. Q. Had you during that time heard her mention the name of Mr. Burroughs ? A. Yes, sir. She told me she was going to be married to him in July. Q. When did she first tell you that? A. I could not say exactly; but a few weeks after I became acquainted with her. Q. How often did she repeat it? A. I do not know how often; but a great many times. Q. What else did she say to you about him ? A. Well, I cannot recall all she said; but she said a great deal. Q. Express regard for him. A. Yes, sir. Q. How frequently was he mentioned ? Every day ? A. That I could not say; but perhaps sometimes every day, and sometimes two or three times a week; very often, anyhow. Q. And you read all his letters that she received? A. I read a great many of them. Whether I read them all or not I do not know. Q. When did you see Mr. Burroughs ? A. I saw him a few days after he came to the boarding-house and called on her. Q. For how long a time did you see him ? A. He remained about an hour. Q. Were you present during the whole time ? A. I was only present five or ten minutes. Q. When did you see him again? A. At the boarding-house, in March or April. Q. When again ? A. In my store. Q. When was that? A. I could not say what month it was when I first saw him at my store, or what day of the month. It was sometime during the summer. Q. Who did he call to see ? A. Miss Harris. Q. Did he see her? A. No, sir; she was not in. Q. When did you next see him ? A. In my store, about five or six weeks before he was married; that is, before I saw the marriage published. Q. When did you see the notice of his marriage ? A. A few days after it was published. Q. Did he see Miss Harris this last time when he called ? A. Yes, sir. Q. Where ? B. In my store. Q. Were you present during the whole interview ? A. No, sir; but I was in view all the time. 8 MODERN JURY TRIAIA Q. Did she go out with him ? A. No, sir. Q. How long was he there ? A. From an hour to an hour and a half. Q. In the front part of the store ? A. Yes, sir. Q. When did you see him again ? A. I did not see him again. As a sample of letters read in evidence, the following will suffice: Letter dated Sunday, June 11, 1859. No place named and no signature. Letter addressed to "My dear, dear Mollie." He advises her to be more careful of her health, and gives her a full history of his pecuniary matters and some pecuniary difficulties. Letter dated Monday, June 26, 1859, 9 p. m. No place men- tioned and no signature, but ending with, " Dearest girl, good-bye." The letter is addressed to " Dear, dear Mollie." He intimates in this letter that she did not wish to be addressed as " little Mollie," for she now wore long dresses. But he says he cannot divest him- self of the thought that she is still the " little Mollie " who sat upon his knee and twined her arms about his neck, or who sat beside him, and about whom he twined his arms and lifted her up, and could have carried the precious burden to Pai'is. He only expressed the fear that she would feel too big to sit again upon his knee and kiss him. Letters dated Thursday, June 30, 1859 (no place), and addressed "Dearest girl;" Sunday, July 2, 1859, and addressed "My dear little Mollie;" Tuesday, August 2, 1859, and addressed to "My darling little Mollie;" Tuesday, August 14, and addressed to "My dear, dear Mollie." In all of these letters the writer speaks to the prisoner in the most endearing terms. He expresses his love for her, and gives her very good advice. He speaks of going to Pike's Peak, and also of his pecuniary matters. In one of the letters he invites her to meet him in a sort of surreptitious manner at Mount Pleasant. The following letter was read in full, and is published as giving a fair indication of the letters subsequently written to Miss Harris by Burroughs : " MONDAY, August 22, 1858. " Ol MY DEAR LITTLE ROSEBUD: ************ How am I to thank you for such a favor ? O, joyous surprise! Glad source of delirious joy! Many times I had longed for your picture, and let my imagination dwell upon the receipt of it, but durst not ask you for it, for rea- sons I will give you if we ever meet not now; but it is the m^e TRIAL OF MAKT HARRIS. 69 grateful, coming as a surprise of inexpressible delight. Really, Mollie, as I returned from the post office after receiving it, I felt so light I could with difficulty keep the ground; I could scarcely avoid flying. I wanted to button-hole everybody I met, and show them what I had got; and it required all the sense of propriety t could command to keep myself from doing so. O! that beautiful picture! beautiful! beautiful! beautiful! And my beautiful! beautiful Mollie! What can I now say for her? T cannot say words fail me. Could I see her, I might, perhaps, express faintly what are my feelings, as reawakened by such visible testimony of her loveliness. O, Mollie, Mollie! you have turned my dry, sterile, old bachelor <* heart into a gushing fountain of glad emotion, and warm, genial affection; and Mollie dear, darling Mollie is the source and end of all. Would I had a hundred Pike's Peak's fortunes to lay at her feet, and the affection of a hundred hearts to lavish upon hej . If " another Mollie " were to contest the claim te my love, she would stand but a poor chance now, if not before. When you were remarking concerning the change (improvement) tht had taken place in your personal appearance, were you trying to make me understand that you had added to your already redundant stock of beauty? I did not fully take the hint then; I understand now. Nature has surpassed herself in bestowing new charms when the measure was already full, running over, and Mollie herself is taken by surprise at her own new excellencies. I understand it all now, and a most effective way have you adopted to bring the fact to my comprehension, and as modest and winning as effective. Your beautiful picture! I have to look at it the last thing before I put out the light at bed-time, and the first thing in the morning. And many times during the day do I look again and again at this beautiful shadow of a more beautiful substance, and each time draws forth some fresh exclamation of swelling admiration. Do not, my dear Mollie, let that accursed blotch on your neck be left to mar such a beautiful person as yours. You have neglected it already too long. Do so no more. Perhaps, dear girl, you will think me extravagant and excessive at my expressions of delight at the receipt of your picture; perhaps I am fulsome, nauseating even. But remember the circumstances. A man would justly be thought a fool, who, going to the town- pump, would clap his hands and dance with wild exclamations of delight at the sight of water; but on the desert, where water had not been seen for many long, weary days, he would be thought perfectly sound, and all would rejoice with him. Were I with you, 60 MODERN JURY TRIALS. enjoying the richer favor of your presence, though I would receive your picture as a precious treasure, yet I would not go quite crazy over it, but would seek to exhibit good common sense. As it is, away off in the wilderness, among Arabs, hideous to behold, and worse to mingle with, I am like the man in the desert at the sight of water. So, under the circumstances, I hope you will excuse me, dearest, if I do plaster it on rather thick. I would not resort to gross flattery of your personal appearance, though your charms were those o* Venus (and I do not think them short of it), for 1 possess too much of sincere regard for your best interests to turn flatterer, and injure you with extravagant praise. 1 would rather tell you of your faults, and show forth my regard and appreciation of you by the unmistakable evidence of duty faithfully performed " ^aithful are the wounds of a friend, but the kisses of an enemy are deceitful." If I speak warmly in your praise, it is but the free gushing forth of uncontrolled feelings, and you know by experience may ring the din of hated chiding in your ears, and make you wish O! so much! it might but cease. But when I chide you, Mollie, I would rather take you in my arms, and soften the harsh accents by the soothing caresses of true, kind and warm affection; for I am not a tyrant nor a bear in disposition; neither would I be the fitful cat, that utters her fondness in tones of winning tenderness at one moment, and plants her claws to the quick into her darling pets the next. But I would be as I have professed, your true friend; in advance asking pardon for his many failings. Will you believe me, Mollie ? and will you understand me, as I make my imperfect efforts to express my sentiments; while I protest I could tell you a sight better if I could see you ! And, my dear, dear Mollie, shall I not see you at Ottumwa the first of the month ? Dear girl, I want to urge you to come, if at all practicable, and don't let small consider- ations prevent you, and come in such a way as not to be tied up to somebody else, so to prevent our being together most of the time, mind you. I broke my promise, and did not write " Sunday," but it was not because I had not intended to; but because I could not get a minute to myself. To-day you will excuse me. A. J. B. Hugh McCullough, sworn I saw Miss Harris in one of the rooms of the Treasury building, upon the floor where the body of Mr. Burroughs was lying. I think it is the first room on the left as you enter the eastern entrance. I think a police officer was in there at the time. It is possible he might have left the room, but TRIAL OF MARY HARRIS. 61 my impression is that he remained all the time. He was certainly there most of the time. The conversation on the part of Misa Harris was chiefly in exclamations. I put but few questions to her. I listened to her rather than carried on the conversation. I think the first question she put to me was, " Is he dead !" At that time, my impression is, that Mr. Burroughs was still breathing. I went out, and returned to her soon after with the information that he was dead. Miss Harris was much excited, and uttered such excla- mations as " Why did I do it ? Why did I do it ?" I put some questions to her in regard to her acquaintance with Mr. Burroughs. In the course of the conversation, she informed me that she had known him for many years; had been engaged to him. I asked her if Mr Burroughs had done her any other injury than the vio- lation of his engagement. She exclaimed, with a great deal of emphasis, that he had not. I put the question to her, " Are you a virtuous girl ?" " Yes, as God is my witness," was her answer. That is about the amount of the conversation that took place. She also said to me that she had come up to Washington for the pur- pose of prosecuting Mr. Burroughs for a breach of promise of marriage. I saw the pistol. It was not more than fifteen minutes from the time I first saw her in that office till she left with the officer. Perhaps eight or ten minutes after Mr. Burroughs died, I thought it was best she should leave, and she herself seemed desir- ous to do so. I accompanied her to the carriage, and she was taken by the police officer to prison. I engaged the carriage for the pur- pose of having her taken to the prison. Cross-examination : I had never known or heard anything of her before. I knew Mr. Burroughs after he came to Washington. He came to my bureau I was then Comptroller of the Currency in the spring of 1863, and applied for a clerkship. I don't recollect when he became a clerk, but I think it was in the latter part of that year. Had no particu- lar personal social relations with him, though I knew him very well, but my relations with him were not more intimate than with the balance of the clerks. Miss Harris, while making the ejacula- tions I have referred to, answering the questions I put to her, etc., was deeply excited, and seemed to be in despair in a frenzy. I think, as I came in, she dropped on her knees. I know she put her hands upon my coat with great energy, as she asked the question regarding Mr. Burroughs. I do not recollect the character of the expression of her face, except that she was deeply moved. I don't think she shed any tears. It seemed to me her agony was too great 62 MODERN JURY TRIAL& for tears. I don't think she was flushed, but pale, or rather, pallid. I did not take notice of her eye, but her whole manner was striking and impressive in the extreme. I recollect I fixed her attention for a moment, and put questions to her; she answered as if she qompre- hended them answering clearly and coherently; but immediately after giving the answer, she would return to exclamations, pacing the room, and exhibited every indication of being perfectly over- whelmed. Q. Describe to the jury her manner when she said she was a vir- tuous girl. A. That is rather difficult, as I am not an actor. I rec- ollect I told my wife I could now realize the difference between real grief and honor, and what we had been in the habit of seeing upon the stage. I cannot exactly describe her manner. She was much moved, ejaculating, " Why did I do it? oh, how I loved him; why did I do it ?" and such like. I never witnessed an instance of greater excitement from moral or mental affection of the mind. This was a new case to me, and a particularly interesting one. The next morning, I think it was, I took Mrs. McCullough down to the jail with me, and, with Mr. Beale, the warden, went to her cell to see if she needed any aid. Mrs. McCullough felt interested in her* We found a gentleman from her own State had taken charge of her wants, and we therefore felt that there was no further necessity for interference on our part, or for any proffer of assistance to her. I found Miss Harris much in the same condition in which she was at the interview of the afternoon before. She was pacing the room as upon that occasion, and her exclamations were much of the same character. Q. You never saw her after that tension of mind had passed off ? A. She was still excited at my second interview with her, but not so much so. Q. State whether, from what you have stated, you were able to form any judgment as to the condition of her mind, and whether she was then capable of acting as a reasonable and responsible being ? Objected to by the counsel for prosecution. Counsel desiring a few moments to look up certain authorities on the subject, the argument was deferred until after the examination of the next wit- ness. AN ATTOBNKY WHO SWEARS WELL* Joseph H. Bradley, sworn: By JUDGE HUGHES Please state to the jury how long yon have known Miss Harris, and whether your acquaintance since you have TRIAL OP MARY HARRIS. 63 known her has been intimate or not. A. I saw Miss Harris, I think, the third day after her imprisonment. I was applied to take charge of her case, and declined on the day after her arrest, and persisted in that declination until I saw her; and then I undertook her case to the extent only that I should see proper preparation made for a defense, although I would not undertake to try the case in court. Subsequently I became her counsel. For the first month or six weeks I saw her very seldom, and until the letter part of February, when I went with Mr. Phelps to see her and found Mrs. Phelps there. I thus became acquainted with her. I do not think that up to the latter part of February I had been to see her but two or three times. I have made one species of insanity particu- larly a matter of study, and that induced me to attend more especially to the condition of Miss Harris; yet I did not see her until the latter part of March, for I was very much engaged in court. Between the twentieth and thirtieth, circumstances occur- ring at that time, called nay attention more particularly to her, and after that time I did not see her frequently until the twenty-fifth of April, if my memory serves me right. In the meantime I had made several visits, and she had had a very violent attack of erysip- elas in the head. During this attack, I having myself suffered more than I knew anyone else to suffer from the same cause, saw her repeatedly. I think I saw her three days in succession during that attack. Q. Please proceed now and state any facts tending to illustrate the condition of Miss Harris' mind bearing upon the question of insanity; and if you have kept any notes, just give the whole account in a narrative form. Mr. Bradley then read from his notes as follows: My attention was directed to observations of the facts indicating the condition of the mind of Miss Harris at my first interview with her, when she was under such excitement as to attract the attention of every one who saw her. And after that, and looking to the preparation of her defense, I saw her with Dr. Nichols, and made repeated visits to her, mainly to see whether she recollected the incidents of her life, and talked rationally about them. Various things occurred sufficient only to keep my attention aroused until some time in the last part of March, after the twenty-fifth, and before the first of April, when on calling, I found her in some excitement, which was exhibited more in her evident desire to talk about Burroughs than I had observed before. Some one had sent to her a newspaper, or piece of a newspaper, containing an account of a seance or session of biologists, in which it was reported that 64 MODERN JUB/ TRIALS. the spirit of Burroughs had been evoked and appeared, and the conversation between the medium and that spirit was given. She showed it to me; commented upon it; asked me if I had faith in or even doubts about that science. She was nervous and excited. I felt her pulse. It was over 110. The top of her head was so warm as to be unpleasant, and yet her hands were cold. The pupil of the eye dilated so as to cover the iris very nearly, leaving only a band, as it were, surrounding it. She talked of Burroughs or his family his brother, I should say, rather and his (Burroughs') wife, during the greater part of this interview, and that with a manner showing no consciousness of having done wrong to any one but his wife. Mr. and Mrs. Phelps, of Iowa, who knew her well, were here in the latter part of February or first of March. He was attending to, or rather waiting for, some case in the Supreme Court, and I visited her with him, and found Mrs. Phelps there. Of course, we Mr. Phelps and I talked freely of the matter; and perhaps what he said caused me to notice more accurately her manner, appear- ance and conversation. I remember but one thing of any particular note. While we, all four of us, were talking quite pleasantly about some incident, M>> Harris suddenly broke in on what we were talking about with some matter wholly irrelevant, and began after a moment to relate some- thing to us, or rather to Mrs. Phelps in particular, when the latter said, "Yes, Mary, you told me about that a little while ago." * * * * * * * * He continued reading notes at length: I sat down, leaving her standing. She advanced rapidly towards me, wringing and twisting her handkerchief, and saying, almost fiercely, " I am not going to stay here any longer, Mr. Bradley. I am going out I am. I won't stay. I want you to take me out. Mr. Bradley." I replied: "Yes, Miss Mary, that's all right; I don't wonder at it. You have had a long and hard time of it, and I would like to get you out." " Then take me out take me out now. I won't stay here a minute." " Well, wait a minute, till we pack up your things." "I don't care about the things; I am going now." I said: " But look at those bars, and " " Bars bars," she said, " what do I care for bars? Do you think they could keep me ? Haven't I a will, and what are bars then ?" But, I said, "I could not squeeze you through them; and the TRIAL OF MARY HARRIS. 65 only way will be to put you in my pocket, and so pass through the guards. We must wait, and make no noise to arouse their suspicion. Sit down quietly for a little while, and tell me all about it." During this whole time (and more passed between us, much of which I have not noted, and do not now recall), she moved rap- idly or stopped suddenly for an instant, yet all the time nervously twisting her handkerchief. She now took a seat by me. I felt her pulse; it was about one hundred and twenty. I tried to catch a look into her eyes; the pupils were dilated as before; her hair was deranged. I arose after a minute, and said, " Let me apply that bay rum and water." Took her handkerchief, wet it with the mix- ture, applied to the temples. Her forehead was as cold as marble. The top of her head, back of the main suture, was so hot as to be uncomfortable to the hand. I wet the handkerchief and laid it on that part of her head. She sat as still and motionless from the time I arose till I had done this, as though she were a statue. I then sat down by her, took her hand, and spoke gently to her. I said, "Now tell us all about it; what has happened?" Her eyes were fixed, as I had observed them before. She glanced at me and ai'ound the room rapidly, and said in a low tone (she had previously spoken with great excitement), " Mr. Bradley, I can't stay here; I can't sleep; I have not slept for two weeks; as soon as I begin to close my eyes I am roused up; the cry of murder is ringing in my ears; it comes from the passage; it is in the room, with most hor- rid shrieks of pain, cursing, and dreadful language; and overhead a crowd of men are stamping and shouting and yelling; and all around me are the most dreadful noises. I can't stay here; I won't stay another night. Let them take me out and hang me; that's all they can do. Let them do it now." By this time she had become greatly excited. Her pulse, which had fallen considerably, had risen again. She attempted to rise, but I restrained her, and said, " Sit still; wait a moment; you haven't told me all yet; I must know all, Mary, before I can advise you. You know and believe I am your friend; that I intend to take you out." She sat still looked at me for a moment, and in a most plaintive voice said, " Mr. Bradley, do you think I am a very bad girl ? I have prayed to God to forgive me. I do believe he has forgiven me; but indeed I never meant to do any human being any harm. Do you think Mrs. Burroughs hates me ?" I tried to soothe her, and, falling into her own vein, by degrees the excitement subsided, a tear welled up and filled her eye, and hung on the lid. I wiped it off with my own handkerchief. She started immediately, and said, "No, no! not so; let me get another 5 66 MODERN JURY TRIAL& handkerchief." That was followed by a choking sob, the tears began to flow freely, and she was relieved for the time. We talked sometime about indifferent matters, when again her face became clouded and gradually fixed, and her eyes settled with a firm and fixed look into vacancy; the pupils dilated as before; her figure as rigid as her face. I spoke to her, but had no reply. Presently she said, "Yes, I loved him; oh! how I loved him! and how she must hate me. I don't like to be hated; I never harmed anybody; it's me that was hurt, and they t61d lies about me." And then she shuddered and sighed again. I said, "She does not hate you." She turned to me the saddest face I ever looked on and said, "How do you know; you do not know her; you did not know him. I knew him for seven years, and he loved me; I know he did; and he loves me now. He don't love her as he did me. He has lovei me ever since I was a little child. It will be noticed that Mr. Bradley skillfully keeps his strong points often before the jury. Mrs. E. A. Flemming, sworn: By Mr. WILSON I reside at No. 142 Lexington street, Balti- more. My acquaintance with Miss Harris was on the sixth of Jan- uary last. She came to my house to board. She said her business was to go to Washington; that she was not very well, and she was stopping in Baltimore for she did not know how long. Her object in going to Washington, she said, was to collect money for the Misses Devlin the ladies by whom she was employed. That was what she told me the first evening she came there. Miss Devlin used to do business in Baltimore, before going to Chicago. The prisoner remained at our house until the thirtieth day of January, the day she came to Washington. Q. State what she said with regard to her expenses. Objected to by counsel for the defense. Withdrawn for the time being. Q. State what her habits were while visiting you. Whether or not you know from her own statement, of her frequently visiting places of amusement; and, if so, state with whom ? A. No, sir; she did not visit any place particularly. Well, she used to go out occasionally to evening entertainments. Q. In whose society ? A. That of Mr. Devlin, brother of the lady with whom she was engaged. He was the only gentleman she ever went out with. Q. State what she said subsequently to the day you have men TRIAL OP MART HARRI8. 67 tioned regarding her visit to Washington. A. She said she intended to come down and sue an old lover for a breach of promise. That she had been engaged to him for seven years, and that he had mar- ried another young lady, but had corresponded with her up to within a month of his marriage. She thought what induced him to marry this lady in Chicago was the fact of her having money. Her object in instituting a suit she said was merely to clear herself and let the world see that she was a virtuous girl. Q. Did she assign any other reason for bringing this suit ? A. Well, she said something about two anonymous letters that she had received, signed Greenwood. Q. Did she say anything further about the lady he had married ? A. She merely said that the father of this young lady was very wealthy, and she had understood and believed that Mr. Burroughs loved her, but married the other one because she was rich. She always held him, Mr. Burroughs, in very high estimation always speaking very well of him. Q. State what she said in regard to the delicacy, the modesty, or propriety of Mr. Burrough's treatment of her ? Objected to by counsel for the defense. Objection overruled and witness directed to answer the questions. A. She said that she had always received the treatment of a father from him, and looked up to him as such, putting the utmost confidence in him. He had never wronged her, she said. Q. State what she said in regard to being still in the employment of the Misses Devlin and as to the payment of her expenses by them? Objected to by counsel for the defense. Objection sustained. Q. Will you state whether you observed on the day the prisoner left Baltimore, anything remarkable in her deportment ? A. I do not know. I did the evening previous to her coming to Washing- ton. The Rev. Mr. Dudley was at the house, and while he was playing a hymn on the piano in the parlor, she got up, picked up one of the ornaments in the parlor, and went ound to take up a collection. I thought that very strange conduct. Q. Did you observe that she was at that time unwell, or com- plained of any disease, and if so, state what ? A. Yes, sir. She complained very much of her throat and complained of being very weak. She had very little appetite. Q. Did you observe anything else that was remarkable in her conduct? A. Yes, sir. Sometimes she would be sitting alone, apparently engaged in deep thought, and then she would get up and all at once commence to sing a love song 68 MODERN JURY TRIALS. "First she loved him as a brother, And he doubted her when her love was stronger." Then she would come to where I was, and appear to be in very good humor. Cross-examination : By Mr. BBADLEY I went to the cars with Miss Harris and gave her my ticket. She was to return that evening. We were to go to a lecture together. DEOPS A BAD WITNESS QUICKLY. AN EXCELLENT BULB. Dr. John Frederick May, sworn: By Mr. CABBINGTON Q. 1. You are known as a physician who has been practicing in this city for a great many years. I desire to have your opinion upon a hypothetical case, which I will state, It is as follows: In the case of a young woman of a highly nervous organization and vivacious temperament, and who has suffered from a disap- pointment in love, there is observed at intervals of greater or less regularity, at monthly periods, the following symptoms: irregular and insufficient sleep, depression of the spirits, and melancholy, outbreaks of violence of the following character, attacking a friend with whom there had been no previous quarrel, with a broom, and on another occasion with a carving knife, throwing a pin cushion at a customer in the store in which she was employed, the cutting or attempted destruction of a piece of fine needle work belonging to a friend, awaking at an early hour in the morning and saying to a room mate that she must leave her, and was going to walk upon the lake shore, insensibility to cold, and shedding tears. State how frequently you have noticed in your practice such symptoms in cases of hysteria, or dysmenorrhoea, and whether upon such symp- toms you would infer the insanity of the patient ? A. It is impossible for me to say how frequently I have seen some of the symptoms enumerated. I have in cases of hysteria seen some symptoms like these, and others have been absent in guch cases. Dysmenorrhoea often occurs without being accompa- nied by any such symptoms at all without any symptom that has been enumerated; but as far as answering such an abstract ques- tion as that, I should say that if those symptoms occurred at stated periods, the periods mentioned here, that they were symptoms of nervous excitement, dependent upon uterine irritability. I could TRIAL OF MART HARRIS. 69 not call that a case of insanity in the general acceptation of the terra "insanity." Q. 2. I will now ask you this question. A young woman of a highly nervous organization and vivacious temperament, having exhibited the symptoms stated in the previous question, and suffer- ing from dysmenorrhcea, having expressed during a period of insan- ity, armed with a pistol, goes in the day time to a public building, inquires at the door for a person, whose name she gives, and con- cerning whom, while in a condition of sanity she expressed. anxiety, goes to the door of the room of that person, and sees him, then conceals herself, and as the person passes her, without notice, aims and fires the pistol at him, inflicting a mortal wound, and then cocking her pistol fires at him a second time. State whether the fact that after the commission of such a homi- cide, she did not make any attempt to escape, and no effort to pal- liate the crime or to allege a provocation, but expressed sorrow and great distress, and exhibited great emotion, and the further fact that the party did not avail herself of the first opportunity to com- mit the act, would, either of themselves, or in connection with the symptoms previously stated, indicate the insanity of the patient, whether, in your opinion, such facts and symptoms could be accounted for upon the supposition that the act proceeded from an insane impulse, than upon the supposition that the party, at the time of the commission of the act, was sane, and was compelled thereto by any other motive, not insanity. Q. 3. State whether the fact that the person did not avail herself of the first opportunity to commit the act, but after the homicide, attempted to escape, made an effort to palliate the offense, and alleged a provocation; and although expressing great sorrow and evincing great emotion, declared that the person deceased had injured and ruined her, and that she was determined to have revenge, if it cost her life, would by themselves, or in connection with the facts and symptoms previously stated, indicate the insan- ity of the patient; and whether the act or homicide could be better accounted for upon the supposition that it proceeded from an insane impulse, than upon the supposition that, at the time of committing the act, the person was sane, and was compelled thereto by any other motive ? MR. VOOKHBES objected to the witness answering the question. He had a great deal of respect for the witness, and a great regard for his experience as an expert; but before he was a competent wit- ness it should be ascertained whether or not he had made that 70 MODERN JURY TRIALS. branch of study a specialty. It would have been necessary for witness to have heard all of the evidence before he could testify upon abstract cases. This objection was not made from a want of confidence in the ability of the witness, but because there are cer- tain rules which must be obeyed, and which require that a profes- sional man must make a study of the subject upon which he professes to give an opinion. Mr. CAEBIXGTON said the opinion of Dr. Nichols was based upon certain hypothetical causes. His testimony is all predicated on cer- tain causes, such as that of a party who had been suffering from disease, etc.; and Dr. Nichols' opinion was founded upon the assumption of two causes, one of which was moral and the other physical, and the prosecution desired to interrogate the witness rel- ative to causes that might result from the physical condition of a party suffering under such causes as were stated in the question. Mr. WILSON argued that as Dr. Nichols had stated the various causes upon which his opinion was based, and as the questions selected were those pertaining to bodily disease, it was perfectly proper for the witness to say whether, from his observation of sim- ilar symptoms in other persons, they were necessarily a cause of insanity. The witness (Dr. May) was examined by the court, and said he was a practising physician, and had had an experience since 1834. Has had opportunities of judging of the effect of physical diseases upon the mind, but he distinctly desired to say he was not an expert on the subject of mental diseases. He had never made the study of the mind a specialty. He had studied it as much as edu- cated physicians do generally; but whenever he had a case of insanity, persistent in its nature and strongly developed, he did not attend to it himself, but put it under the charge of those who had made the study of the mind a specialty. Mr. CABBIXGTON said he held that any educated physician was a proper witness on a question of insanity. Mr. VOOBHEES argued that before the physician could be a com- petent witness, it was necessary to show that he possessed that skill required by the books. He argued, further, that the term physician, as used in the books, when applied to cases of insanity, applied only to those who had made the study of the mind a specialty. The COUBT decided that the question was a proper one, and Mr Bradley took exception to the ruling of the court. TRIAL OF MARY HARRIS. 71 Dr. MAY said he did not professs to any more skill than a physi- cian in the ordinary routine of practice might require, and had never made the study of the mind a specialty. Mr. HUGHES objected to the form of the first question, and argued that all of the facts as detailed by the witnesses should have been stated, as the witness had not heard the testimony in the case. Whether the deceased wrote the fictitious letters or not, the accused at least believed they were written by him; and her disap- pointment in love, and her belief that deceased intended to disgrace her, had the same effect as though these facts were actually true, and all the facts as testified to should be stated to the witness. The interrogatory goes to the question of general insanity. This plea had not been set up, but simply that the insanity of the accused was paroxysmal, and that she was subject to mental dis- turbance, which manifested itself in connection with Burroughs. All the facts in the case must, therefore, be detailed to the witness, and not only a few of them. Judge WYLIE said he did not know what the evidence was in this case. He was not the judge of it, and, officially and judicially, he must close his eyes to it. All he knew was, that they were try- ing a case of the United States against Mary Harris; and at this state of the case a hypothetical statement was submitted to a wit- ness as an expert, and the witness was asked whether a party thus affected was insane. The court was inclined to admit the evi- dence, but the prosecution adduced it at their own risk, and it might be subsequently cast aside, and the jury warned not to co? sider it. The second question was also objected to by Mr. Hughes, on the ground that it was not a medical question, but one of fact. Mr. CAKRINGTON urged that it was a proper question. Dr Nichols had been asked for his opinion as to the insanity of the prisoner in regard to the whole evidence. He gave that opinion upon the evidence as he understood it; but he (in Mr. C.'s opinion^ misapprehended the testimony, and assumed what was not proven. When Dr. Nichols gave his opinion it was on a hypothetical case, the defense relying upon a hypothesis to prove the insanity of the accused. The prosecution undertakes to meet that testimony and opinion, not by showing merely a hypothetical case, but by adopt- ing all the facts upon which the opinion of Dr. Nichols is based. Mr. Carrington argued that the opinion of Dr. May and other edu cated physicians was worth more than the opinion of those who attended only to disease of the mind; for the former looked to all 72 MODERN JURY JURY. physical causes for certain effects, while the latter pursued but on branch. Mr. HUGHES replied to Mr. Carrington, and said this paper seemed to be but a commentary on the testimony of Dr. -Nichols, drawn up by counsel, and to which they desired to have Dr. May swear. He defended Dr. Nichols* course, and dwelt at length upon the points of his testimony. REMARKS OF HOK. JAMES HUGHES. This speech is a tersely stated argument, without the least attempt at eloquence; yet it is telling, as a contrast 10 what fol- lows. Judge HUGHES: May it please the court, and you, gentlemen of the jury, it is essential to the discharge of f he very responsible duty which devolves upon you in the decision of this cause chat you should well understand the issue which yon have to try. The indictment charges the defendant with murder; and in this charge is included the lower degree of felonious homicide manslaughter. Under this indictment, if the evidence is satisfactory of the guilt of the accused beyond a reasonable doubt, you ought to find M>- Harris guilty of murder; or if the proof fall, short of establishin- legal malice that is to say, if the killing, instead of being deliber ate and premeditated, was done upon sudden heat you might con vict her of manslaughter. To this indictment, gentlemen, she has pleaded " not guilty;" and this puts the prosecution upon the proof of every material allegation necessary to sustain the charge; and this proof must be so clear that you will be able to say, upon your oaths, that her guilt is established beyond a reasonable doubt. Otherwise you must acquit her. We propose, or at least I do, to meet this accusation fairly. I have observed, from the wording of one of the instructions asked for by the counsel for the prosecution, a disposition on their part, if they fail in obtaining a conviction for murder, to endeavor to obtain from you a compromise verdict, a conviction for man- slaughter. Gentlemen, this killing was either a deliberate and premeditated murder, or it was no crime at all; it was either excusable homicide, committed in a state of mind which rendered the accused irrespon- sible for her act, or it was a homicide, although with great provo- cation, yet with a sufficient degree of deliberation and premeditation to constitute the offense of malice. This, then, is the issue which you have to try; and it is not amiss that I should direct your atten- TRIAL OF MARY HARRIS. 73 tion to the parties to this cause. The accused, as you see, is a woman. It is the pleasure of the prosecuting attorney, in intro- ducing this case to your attention, to comment on this subject. He warned you against sympathy; he warned you even against mercy; and advised you that the laws of the land lodged the prerogative of clemency elsewhere. While he himself professed great sym pathy for woman, he also professed that this particular female was an offender so black with crime that she had excluded herself from the pale of sympathy on that ground. He said that she had mani- fested a savage disregard of human life; and later in the progress of the cause, when the oaths of the witnesses ought to have dissi- pated any such impression from his mind, he, with great emphasis, in the presence of the court and yourselves, pronounced this the most atrocious murder on record! It is not, gentlemen, because the defendant is a woman that we expect an acquittal at your hands. She is young, and I was about to say that she is friendless; but she is not; but I will say this in her praise, that whatever friends she has, she owes to her own unassuming merits. She has neither wealth, station, nor kinsfolk; nothing to make her friends except her misfortunes and her good conduct. It is not because she is a woman; it is not because her parents and relatives, who should be here with her to-day, to sustain her in this trying ordeal, have been separated from her, and have become to her as aliens and strangers, through the acts of the unfortunate inan whose life she has taken; it is not for that that we shall ask you to acquit her, but because she is innocent; because she has a right to a verdict of not guilty from you, under the laws of the land. And permit me to say that, whenever, in the very opening of a prosecution like this, counsel, of the learning, experience, and ability of those prosecuting this case, serve notice upon the court and jury, and upon all mankind, that they are seeking for a con- viction upon mere technical grounds, and when throughout the progress of the cause the same disposition is manifested by repeated objections to testimony as it is offered, and when, in order to induce the court to give such instructions to the jury as were not law, for the purpose of conviction, old and exploded doctrines are exhumed, resuscitated, and appealed to, and when we see immediately behind the prosecution the party representing private vengeance in this cause, the prosecution so introduced seldom, if ever, fails to be unsupported by law and by evidence. Gentlemen, the defendant is brought here by the power of the Government, to answer this charge. Human life has been taken, and a public examination of the circumstances attending it is due 74 MODERN JURY TRIALS. to public justice; it is proper that she should be here and answer for the killing of this man; but she comes here helpless, in the hands of a powerful Government; and the Government is the other party to this cause. True, the duty of the Government is to enforce the law; to punish offenders; to protect human life; but in no spirit of persecution and with no vindictiveness. It is a painful thing, and it ought to be so to the officer of public justice, to arraign, try, and execute even the guilty. Zeal, perhaps over- much, and passion may be excused in the prisoner, or in her advo- cate when arraigned before the bar of public justice, and charged with the highest crime known to the laws, but the representative of the commonwealth comes here uninfluenced by private consider- ations. He is presumed to be disinterested, presumed to be impar- tial, and absolutely to desire, as the law desires, that no innocent person should suffer; and to desire to prosecute his cause in the spirit of the law, which says that it is better that ninety-nine guilty persons should escape than that one innocent person should suffer. * * * * * * * Now, the fact about it is, that there is a letter in the testimony which shows that these parties had a lovers' quarrel and exchanged tokens, or agreed to do so; but, as the evidence shows, afterwards had an interview, became reconciled, and their affairs floated on in as smooth a current as before. If this be not so, why are these old letters here ? why is this picture here ? If the agreement to break off this engagement was carried out, if they never came to a differ- ent understanding than that, why are these things here ? Truly, the man must be blind, I think, who fails to understand that mat- ter, or surely he never was in love; never had any quarrels, those lovers' quarrels which are said to be sweet, and those reconcilia- tions that loom up in after-years as the green spots of memory He denies here that the engagement to marry subsisted after the writing of this letter, and asserts that the lady herself broke it off, and that she was then mistress of her affections and remained so, that afterwards, when the disconsolate and rejected swain married another woman, she became jealous and killed him for itl That is his theory. The mere statement of such a theory is a sufficient refutation, and shows to what straits the prosecution have been driven. How hard it is for them to meet fairly the law and the evidence in this case, and to get up even a plausible theory of guilt against this poor unfortunate girL Then he speaks of punishment, pursuing the same cry for blood that has characterized this prosecution from the commencement TRIAL OF MARY HARRIS. 75 Punishment is good for the guilty, but when administered by courts of law it is administered in a spirit of sorrow and for refor- mation, not with vindictiveness. Punishment, indeed! Who is to punish the betrayer of female honor ? Who is to punish the ser- pent that, with his slimy track, pursues from early girlhood into budding womanhood the unfortunate girl, separates her from her friends, her family, and leaves her alone and isolated, without father or brother to defend or protect her, and then throws her heartlessly upon the world ? Who is to punish him ? Ah! this unfortunate man, no doubt, thought that he could do this thing with impunity, because this girl was friendless. There is a just God, however, who administers justice in such cases, and he chose as the instrument of his justice, in this particular case, the poor unfortunate girl whose life had been forever blighted. That little girl (pointing to the prisoner), with that little hand poised the pistol which might, upon ordinary occasions, have been dis- charged a hundred times, or rather snapped (for they will not dis- charge one time in fifty), without any serious consequence, but with that toy of a pistol she was the instrument of punishment in the hands of God, and He took away her reason, and she stands here to-day secure from human justice. That overruling Provi- dence, without whose consent not even a sparrow falls, brought punishment to the door of the deceased brought it by the hand of her that he had ruined, and placed her in a position where she shall answer to Him alone for what she has done, and not to human laws. Something has been said by the gentleman who has just taken his seat, about attacks attacks which have been made upon the deceased. Gentlemen of the jury, one of the most painful duties that ever devolves upon counsel, in the necessary defense of an accused person, is to throw censure upon those who are dead to bring up their faults, their crimes, and perhaps their wickedness but when it is necessary to the defense, to the true history of a transaction, how can it be avoided ? Could we give you a true history of the causes of this sad tragedy without tracing the past relations between these parties ? Could we stand here and do jus- tice to our client, and draw the veil over the transactions of that man's past ? I submit it to you, gentlemen, if we could have done BO, so far as I was concerned, I would gladly have done it, and I feel assured that I speak the sentiments of my associate counsel. What attack, or what denunciation have you heard of that dead man, from one of us, with the exception, perhaps, of a single expres- BHQ, that was brought out by one of the counsel, by a most ujiwar- 76 MODERN JURY TRIALS. ranted attack upon our client from the prosecution ? Attack him * The gentleman ought to know that all attacks upon human con duct are harmless, except when the weapons are furnished from the magazine of a man's own life. A man who leads a pure life, who deals fairly and honestly with his fellows, may be persecuted, may be hunted down, calumniated, but his character will only shine brighter for all that, if it can stand the test; and we know that so well that we would feel assured that an unwarranted attack upon this man by us would only recoil upon us, and do our cause an injury. But attacks are fatal where the conduct of the party him- self has furnished the weapons with which to make them; and we submit it to yon, gentlemen, whether, in this case, the unfortunate deceased has not furnished everything necessary, notwithstanding the boast of the prosecution, in his opening speech, that he died without a stain? What have we heard of his dying declarations? Why did not they tell you what he said, if he said anything? It is a singular fact that the prosecution has 'introduced no testimony as to that. I do not say there were any dying declarations, but there might have been, and there might not have been. He lived, you will remember, fifteen minutes. Attacked ! Yes, he has been attacked, but not by counsel. Who, then, you may unthinkingly ask, attacked him ? The sworn evi- dence in the cause attacks him. His own letters attack him. His inhuman cruelty, in seeking to destroy the reputation of this poor girl, when he had resolved to desert her, attack him. His anony- mous letters attack him. His assumption of the relation of hus- band for a most worthy and estimable lady, under the solemn sac- raments of religion, occupying the position that he did to the accused in this case, attack him; and one who had sought to sus- tain him in his wrongs, and one who has been the partner of his cruelty, and I might also say the partner of his guilt, toward this young woman even his own brother attacks him. Gentlemen, you have more evidence before you to show you that the Rev. John C. Burroughs is the responsible cause of his broth- er's death than you have to show that this unfortunate girl was. And then, aaain, they say we have attacked the Rev. John C. Burroughs! When did we attack him? Oh! somebody looked; Mr. Bradley's eye flashed in honest indignation at the halting man- ner of some of the prevarications of the witness. Guilty people are very sensitive about these things. I do not know that we have as yet attacked Dr. Burroughs' testimony, and I would not go one step to the right or to the left to attack it, if it were not mv duty; but I know that I mean to attac-k it; and if I failed to do so, I TRIAL OF MARY HARRIS. 77 would be recreant to the duty that I owe to my client in this case. What! a doctor of divinity, who has come here and contradicted the statement of every witness in regard to the material points in this case! who has testified that his brother was not in Chicago upon a certain day, and therefore it was impossible for him to be at a certain place; who, knowing that this prostitute, Ellen Mills, knew the fact, and could either sustain or overthrow him, for he himself tells you that when a detective or a policeman told him that, with one or two hundred dollars he could get her out of the way, he made use of no expression of disapprobation not to be attacked ? A reverend gentleman, seeking simply for justice and for truth, to thus make himself a silent party to the running off of a most material witness for the defense, and then come here and attempt to swear away the facts upon which that defense was based! Attack him! Yes, we will attack him; and the justice of God, that took away his brother's life, will, in my humble opinion, bring to him his share of the punishment; for to him, a clergyman, rep- utation and credit are everything. If this trial does not condemn him with his congregation, and with all good Christian people in this land, then commend me to the standard of public sentiment in Chicago. Now, gentlemen, we meet the issue fairly. The killing is ad- mitted. The court has laid down the law that we must assume the burden of proof as to the insanity. We accept it. The court has stated the degreee of certainty with which we must establish it. I reply that we accept it. We will try to meet the issue. "Oh! how I loved him," is the words of this tender girl. If this young lady could go through all this, could bear all this, and yet endure the sight of him and control of her reason, of her conduct, she has a heart and a soul most obdurate. The mere state- ment of the case, gentlemen, is enough. Now, upon that evidence, all of which he heard, and upon the facts that came within his own knowledge, Dr. Nichols, an eminent physician, having charge of an insane asylum, possessed of great experience in this particular branch of science, has stated to you, repeatedly and distinctly, his sworn opinion, that the killing of Mr. Burroughs was the result of an insane impulse. Do you object to that testimony, gentlemen ? Are you so hungry for conviction in this case do you participate so much in the feelings that have actuated the prosecution that with the sworn testimony of this eminent physician, supported by that of every other doctor testifying in the cause, you can say that you require any further proof to satisfy you beyond a reasonable 78 MODERN JURY TRIALS. doubt, since such is the requirement of the law, that this girl wap insane, in the sense we claim? We do not claim that she was gen- erally insane, as the prosecution insist upon having you believe. Have we not repeatedly stated that we did not claim she was even partially insane all the time; but that simply she was subject to sudden attacks, overwhelming paroxysms of insane impulses ? The testimony of the doctor met the question fairly and fully, but the argument of the prosecuting counsel did not meet it all. He had nothing to say about the testimony of Dr. Nichols. I read from Ray's Medical Jurisprudence, page 66, section 45: "It is not enough that the standing of the medical witness is deservedly high in his profession, unless it is founded on extraordi- nary knowledge and skill relative to the particular disease, insanity. Lunatic asylums have so multiplied in our country, that patients of this class are almost entirely taken away from the management of the private physician, and confided to the more skillful conductors of these institutions; so that many a medical man may spend a life of full practice without having been intrusted with the care of a dozen insane persons. To such, therefore, a practical knowledge of the disease is out of the question; and thus the principal induce- ment is wanting to become acquainted with the labors of those who have enjoyed better opportunities. If a particular class of men only are thought capable of managing the treatment of the insane, it would seem to follow, as a matter of course, that such only are capable of giving opinions in judicial proceedings relative to insan- ity. True, in important cases, the testimony of one or more of this class is generally given; but it may be contradicted by that of others utterly destitute of any knowledge of the subject on which they tender their opinions with arrogant confidence, and the jury is seldom a proper tribunal for distinguishing the true from the false, and fixing on each its right value. An enlightened and conscien- tious jury, when required to decide in a case of doubtful insanity, which is to determine the weal or woe of a fellow being, fully alive to the delicacy and responsibility of their situation, and of their own incompetence unaided by the counsels of others, will be satis- fied with nothing less than the opinions of those who have pos- sessed unusual opportunities for studying the character and conduct of the insane, and have the qualities of mind necessary to enable them to profit by their observations. If they are obliged to decide on professional subjects, it would seem but just, and the dictate of common sense, that they should have the benefit of the best profes- sional advice. This, however, they do not always have; and, con- TRIAL OF MARY HARRIS. 79 sequently, the ends of justice are too often defeated by the high- sounding assumptions of ignorance and vanity." Just such testimony, then, as the law requires, we have given you, and it was no doubtful, no hesitating opinion that this learned and experienced physician gave you; and his manner was such as must have recommended his testimony to every impartial mind. We took the risk of that, and put the question to him, not con- tenting ourselves with proving acts of insanity before, and acts of insanity afterwards, but we marched right up directly to the issue and put the question to him as to the precise moment of time when the homicide was committed. He said that act was the result of an insane impulse. Do you believe it ? If you do, gentlemen, you must acquit this prisoner. My brother hoped " a Washington jury would maintain their dignity." Do you think it would be maintained by convicting an insane woman, because there is too much licentiousness in the town generally ? What kind of an appeal to a jury is that ? Way out in the far West, in the trial of little suits before a justice of the peace, I have heard appeals made to excite prejudices against a town of people; but I admit I was not prepared to hear such an appeal at the capital of the nation. A city of licentiousness ! If that be so, and a reformation is to begin, wait until you have before you some man of power and influence, and you will not have long to wait. The signs of the times indicate that. Wait until some unprincipled official, who has taken advantage of the disjointed state of the times to trample upon human liberty, upon human rights, and to disregard statutes, constitutions, and every sanction of liberty wait until such men are dragged here, and then vindicate the law in Washington. In the meantime, let this poor, blighted, afflicted, ruined and persecuted girl go free. The law has no claim upon her. Let your verdict follow the partner of the deceased in this plot; and let Washington justice travel to Chi- cago, and unmask there, before a confiding and trusting congrega- tion and people, a man who wears the livery of Heaven to serve the devil under. Gentlemen, I am now through with this cause, and knowing, as I do, that I shall be followed by a gentleman, who will far more than supply anything I may have omitted, so far as I am concerned, I commit the case into your hands, with the most perfect and implicit confidence, that it will not take you long when you get this case fairly into you hands to record a verdict of Not Guilty. SO MODERN JURY TRIALS. REMARKS OF HON. D. W. VOOBHBES. Mr. VOOBHEES said: It is not necessary for me to attempt to increase your sense of the solemnity of the issue which is placed in your hands. Nor need I dwell upon the fact that this is one of the most remarkable cases ever submitted to a jury for trial. In many of its aspects it wears features more startling and extraordinary than we have hitherto met with in the annals of jurisprudence. There is no man in this court room, no one throughout this broad land, whatever his experience or profession may be, who has ever seen its like in all respects before. A few months ago, in open day, in one of the public buildings of this capital, and in the presence of numerous observers, a human being was shot down by the frail hand of the prisoner at the bar, and sent to his final, dread account. The homicide mentioned in the indictment was thus committed; and if it was deliberate, rational murder, then the blood of innocence is crying unappeased from the ground. But what are the elements which constitute this baleful crime ? From that hour presaging woe to the human race, when the first man born of woman became a murderer, down to the present time, we have on record the frightful characteristics of the murderer. He is a being in whose heart the fires of malice and hate glow in perpetual flames, in whose face the image of God is blotted out, in whose eyes the light of mercy and love is forever quenched, who lies in wait like the tiger for his prey, and who strikes his unsuspecting and unoffending victim from motives of revenge or the lust of gain. Around such a being there centers every conception of horror which the human mind can embrace. All nature, animate and inanimate, the very earth and sky, recoil from him who bears the primal curse, and there is no communion for his blackened spirit this side of the abodes of the lost. But turn from this faint picture of a real murderer to the deli- cate, gentle being before you. We are told that deliberate and atrocious murder has been committed and that the criminal is in court. We are told that a brutal assassination has been accom- plished, and that the lurking and ferocious assassin is in our pres ence. Where, gentlemen, where ? Am I to be told that this heart- broken young girl, with her innocent, appealing face, and look of supplicating dependence on you, is the fierce and malignant monster of guilt which is described in the indictment and in the inflammatory language of the prosecution ? Am I to be told that her heart conceived and her hand executed that crime for which the Almighty marked the brow of Cain ? TRIAL OP MARY HARRIS. 81 Let us pause and reason together for a few moments on a prim- ary question in this case. The life of this defendant, from the days of her early and happy childhood to the present hour, has been investigated and laid open before you. Every trait of her character, all the general incidents of her conduct since she was ten years old, have been elucidated and detailed in your hearing. Of what vice has she ever been guilty ? In what immorality has she ever indulged ? Not one, at no time and under no circumstances. Her life has been amiable, kind, affectionate, blameless, and pure. Troops of friends, of the best and most irreproachable in the land, have gathered about her in her quiet sphere at every stage of her checkered existence. These files of depositions declaring all her ways for nearly ten years past attest these facts. Then, at the very threshold of this case, you are to answer this question: Can a young and generous mind, wholly uncontaminated with vice, unsullied and unstained by contact with the evil practices of life, without previous training even in the contemplation of crime, at once, while in a healthy state, in the undisturbed enjoyment of all its faculties, incur that awful grade of guilt at which civilized human nature in all ages stands aghast ? Is it within your experience that the soil of virtue bears spontaneously the hideous fruits of vice ? Are there no gradations in human character and conduct? Where is the hardened criminal who ever ascended the gibbet in expiation of his offenses who has not marked his downfall from small begin- nings, increasing gradually and swelling in volume until he was hurled onward to the commission of gigantic crimes for which the law claimed his life as forfeit? And yet you are called on to believe that this defendant, at one single bound, sprang from the paths of virtue, gentleness and purity, without any intervening preparation, to the highest and most revolting grade of guilt and ferocity known to human society. Those who have predetermined her guilt and passed a verdict in advance of the evidence and the law, may indulge in this absurd and repulsive philosophy. They may cherish this libel on human nature. And, in doing so, they may as well go further. Let the school-houses be torn down and the churches abandoned. The instruction and moral culture of youth are useless and in vain. The precepts of morality and the principles of religion afford no security to the minds of their pos- sessors from the sudden, instantaneous development of the most appalling wickedness. In the name of reason and universal experience I utterly repu^i- ate this shocking theory, which the prosecution is forced to embrace 'oefore it can proceed a single step against the life of this girl. In 82 MODERN JURY TRIAL& the name of undefiled and virtuous human nature I repel it. In the name of innocent childhood and unstained womanhood, in the name of your own dear ones at home, I pronounce it a slander upon those holy attributes of the human heart which tend upwards, and ally us with heaven. I deny that Mary Harris is a crimin?!. I deny that any murder has been committed. I deny that this young prisoner is responsible for the death of A. J. Burroughs. I assert that his death was not a crime. He was not slain in viola- tion of law, for offenses against the law can only come by those who possess a sound mind and an unimpaired intelligence. And now, invoking your attention, I shall proceed to show you from the story of her life, which must constitute her defense, that it is not your duty to lay your hands in further punishment on the suf- fering head of Mary Harris, but that it will rather be your pleasing task to open her prison doors and bid her go free, attended by the charitable blessings of all Christian people. Who is this unfortunate defendant, and whence came she, when her weary feet bore her still more weary heart \to this crowded capital ? A short time since, and but few here could have answered; but now all is known. We see at a single glance a gliding, panoramic view of the life of an earnest, devoted girl. Our eyes first rest upon a point nearly ten years ago. At this time Mary Harris was a beautiful and happy child, some ten years of age, in the town of Burlington, Iowa. In that hour of tender childhood the evidence shows that Burroughs first met her; and would to God that in that hour she had died! Gentle memories would have clustered around her peaceful grave, and this bitter cup, whose very dregs she is now drinking, would have been spared her. There is a mercy at times in death, for which the stricken soul longs and gasps as the parched and feverish earth does for the cooling rain. But He who notes the sparrow fall, and has a design in all the ways of men, ordered it otherwise; and she is here to-day weary and heavily laden, but humbly submitting to the Providence by which her own will has been overruled and her actions guided. Burroughs at this time, gentlemen, was a man of comparatively mature age, more than twice her senior as he afterwards in his letters declares almost old enough to be her father. She sat upon his knee in the purity of unconscious childhood. I speak now from the evidence furnished by his own letters of a later period, and also from the testimony of those who witnessed at that time their constant intercourse. He proposed to mold and fashion her mind by the superior force of his own age, experience, and will, in order that she might, at a future period, make him a suitable vife. TRIAL OF MARY HARRIS. 83 There is no room to doubt upon this point. Let those ninety-two letters here produced in court make their appeal. They speak in no uncertain tone. They show us robust, developed manhood seeking the ascendancy over a confiding child. They show us maturity and strength striving for the mastery over inexperience and weakness. He assumes even a paternal interest, and teaches her young heart literally to leave father and mother and cleave unto him. We hear it stated that no marriage engagement ever existed between them. The miserable desire to inflict indiscrimin- ate punishment upon the innocent as well as the guilty would even deny this plain fact, which is established by almost every line of the evidence to which you have listened. The prosecution itself proved that at one time the very day was fixed for the fulfillment of their oft-repeated vows. Under these circumstances, need I dwell at length upon the imperious nature of the influence which he obtained over her? The child became absorbed in the man. What else could happen? They walked the pathway of life hand in hand for many long years of hope and fond anticipation. He taught her to regard him as her future destiny. He was all the world to her. Her heart opened and expanded under the influence of his smile as the bud becomes a flower beneath the rays of the sun. She grew up to womanhood in unquestioning obedience to his will. The ties by which she was bound to him were the growth of years, and em- braced all the strength of her whole being. . And did all this have no effect on the subsequent condition of her mind when disaster came ? He had carried her to the highest pinnacle of happiness and hope. She stood upon the summit of joyous expectations, and all around her was sunshine and gladness. Well might she exclaim to my learned and eminent brother, as she paced her prison floor, "Oh! Mr. Bradley, you should have seen me then; I was so happy !" Yes; though poor and humble, yet she loved and was beloved, and it was enough; she was content. For in that hour, when a virtuous woman feels for the first time that she pos- sesses the object of her devotion, there comes to her a season of bliss which brightens all the earth before her. The mother watch- ing her sleeping babe has an exclusive joy beyond the comprehen- sion of all hearts but her own. The wife who is graced by her husband's love is more beautifully arrayed than the lilies, and envies not the diadems of queens. But to the young virgin heart, more than all, when the kindling inspiration of its first and sacred love is accompanied by a knowledge that for it in return there burns a holy flame, there comes an ecstacy of the soul, a rapturous 84 MODERN JURY TRIALa exaltation, more divine than will ever again be tasted this side of the bright waters and perennial fountains of paradise. The stars grow brighter, the earth more beautiful, and the world for her is filled with a delicious melody. This, peculiarly, is woman's sphere of happiness. There she concentrates all the wealth, the unsearch- able riches of her heart, and stakes them all upon the single hazard. If she loses, all is lost; and night and thick darkness settle down upon her pathway. It is not so with man. His theatre is broader. No single passion can so powerfully absorb him. A variety of interests appeal to him at every step. If disappointment overtakes him, a wide and open horizon invites him to new enterprises, which will relieve him of that still, deep, brooding intensity which is the pregnant parent of woe, insanity, and death to woman. I am speaking now of general principles; but every word that I have said is applicable to the case of Mary Harris. For when her parents, distrusting Burroughs, and fearing that very treachery which afterwards blasted her life as well as his own, endeavored to break off the connection and wed her to another, who, from their previous history, could for a moment doubt the result? He went to Chicago, and advised her to do the same in order to be near him. Gentlernen, the language which faithful woman holds to the object of her love when the hour of separation is threatened is very old and very beautiful: " Entreat me not to leave thee, or to return from following after thee; for whither thou goest I will go, where thou lodgest I will lodge: "Thy people shall be my people, thy God my God; where thou diest there I will be buried: " May the Lord do so to me and more also if aught but death part thee and me." It was in this spirit and under these circumstances that she came to Chicago and resided with the Misses Jane and Louisa Devlin. It was Burroughs still shaping her destiny. It was the man still pointing the course for the child to follow. And shall this be imputed to her as a fault ? Will this prosecution, fed, as I believe it to be, from the springs of private malice, assail her because she trusted Burroughs and confided in his honor? Had Burroughs been faithful to his vows, as he was called on to be, by every attri- bute which ennobles manhood, by every law, human and divine, then this unhappy girl would have been to-day his respected wife, and the world would have applauded her sublime devotion to him when the truth between them was sought to be poisoned by whis- pering tongues. Now, because he was false and broke her heart, TRIAL OF MARY HARRIS. 86 you are called upon to believe that this act abased her virtuous brow into the dust of shame. I repel this calumny. Not only do I pronounce it a slander upon Mary Harris, but it is equally a slan- der upon the truth, fidelity, and virtue of womanhood. She did no more than what the proudest, the purest, and the best have done in all countries and at all times. She endowed him upon whose arm she leaned with the principles of justice and honor; she crowned his brow with a constellation of all the virtues and then trusted him. She turned her back on home, kindred, and friends, and with him faced the world alone. We are told that no stain shall rest upon the name of the deceased. The leading counsel for the Government, at the very opening of this trial, announced, with singular emphasis, as if anticipating your conclusion, that he was a Christian who had lived and died without blemish or reproach to that sacred character. His brother, the Rev. John C. Burroughs, says that his object here is to relieve his name from the slightest opprobrium. Thus we see the purpose of this unnatural struggle for a conviction, in the face of law and evidence, which for more than two hundred years have prevailed in the defense of the children of misfortune and providential afflic- tion. Mary Harris is to be condemned, to be carried to the horrid gibbet, that appalling machinery of death, terror, and lasting ignominy, in order that the conduct of A. J. Burroughs shall stand triumphantly vindicated! I do not wish to assail the dead; but is it expected that this monstrous assumption in favor of crime shall be passed in silence ? Shall this trial impress upon the public mind, as a lesson for future action, that it is a part of the Christian character to win the love and confidence of a child, to cultivate her affections as years advance, engage to become her husband, induce her to leave her home in order to enjoy his society, and to escape from another proposal of marriage; and then, after seven years of hope deferred, to dispel all her bright dreams of life by quitting her in a moment, by dropping all connection with her without a word of explanation, by marrying another woman and turning his back on her forever ? ******* Time passed on with this defendant, bearing her onward to a region of horrors, to the scene of her dismay and ruin; and I must move along on the melancholy tide, and approach the sorrowful hour. We have now traced these parties for years. Burroughs had carried her hopes to the highest elevation. She was looking forward to a future filled with honor and with delight. It was of his creation and there was not a cloud within the scope of her vision. 86 MODERN JURY TRIALS. In such a serene and happy moment as this, with no note of prepa- ration to her tender and susceptible mind, with no sign of warning, the blow descended upon her naked head, shivering every hope with which her heart was tenanted, and dashing the temple of reason itself into ruins. Is this statement the work of fancy on my part? Is it not the sad, literal truth? I appeal to you who have heard the evidence. Counsel have seen fit to attribute pow- ers of eloquence to me, which I neither possess nor affect. I can only repeat to you a plain and simple story of wrong, misery and madness which you already know, and which is far more eloquent in itself than any words I can employ. Seven years of love were spurned in an instant. Seven years of patient hope were turned in a moment to despair. He had lifted her up almost to celestial heights, only that her fall might be sufficiently great to dash her to pieces. Though without sin, yet she was cast out from her place of blissful abode and fell like the sun of the morning to hope no more forever. In order to understand the effect of disappoint- ment and misfortune, we must fully consider the condition of the mind when the shock came. Adopting this rule in the present instance, and we shudder at the bare contemplation of the mental agony of the defendant when she realized that she was abandoned by him for whom she had abandoned all but her honor. Gentlemen of the jury, this Christian minister by profession, swears positively that his brother did not write these letters. But does he not stand before this court, before this jury, before the world, and before God, convicted, upon his own testimony, of sup- pressing the very evidence which would have settled that question forever? There is but one conclusion to be drawn from this fact. These two absent witnesses would have sustained Louisa Devlin ; and Dr. Burroughs and this prosecution knew it. They would have described the deceased here in this court as they did in Chi- cago. This is no forced assumption of mine. It is a well-settled conclusion of law. The suppression of evidence is a grave and almost conclusive presumption against the party that resorts to it. This is more especially true when, as in this case, the prosecution is sustained by the treasury of the Government in enforcing the attendance of witnesses. What is the object of a trial in a court of justice ? We are here in search of truth. We have, each one of us, under the solemnities of an oath, invoked the name and help of God in the discharge of that duty. We stand on holy ground. Life, life, that mysterious gift of the Creator, is the issue at stake. Its awful import should inspire every breast with a religious desire to aid this court and jury in arriving, if possible, at the exact truth. TRIAL OF MARY HARRIS. 87 Then, what shall be said of one who admits he has done so ? I learn that it is said that no attack can injure Dr. Burroughs; that his position is so exalted that no shaft can reach him. I have no desire to indulge in personal assaults; but no position in life, no assumption of superior piety and virtue, will ever shield the char- acter of a witness who, in a trial involving life itself, conceals material evidence, and then attempts to supply its place by his own unsupported oath. Nor need counsel, in such an instance, waste their time in denunciation, for no language which our tongue could utter could paint his conduct in colors so dark, in a moral deform- ity so hideous, as he himself has painted it by his own testimony. Such a witness becomes at once powerless for evil before an intel- ligent jury. He is dead by his own act. It will be asked, however, what motive Burroughs had to thus compass the destruction of one whose image, if he was human, mnst have been blended with his tenderest memories, with the most sacred associations of his heart. A refuge will be sought in this inquiry, from the irresistible pressure of the proof which thus far shatters all the assumptions and theories of the prosecution. Why why did he do this deed without a name for cruelty and perfidy ? You will be told that all the actions of sane people have their intel- ligent reasons. This is true; and the history of this case gives a ready, an instant answer to this inquiry. His motive was not the gratification of passion. Lust was not one of the elements in his calculations. Base and wretched as are such motives of action, yet, if it be possible, those that actuated Burroughs were still lower and more depraved. Look calmly at his situation. From Mary Harris he was about turning away without a word. He knew that such an act would be to her as appalling as the voice of doom His conscience made him a coward. He could not face her with the story of his stupendous crime. He could not look into her confiding eye and tell her that his whole life towards her had been one mighty falsehood. Human nature, however depraved, was not equal to such a task. The past was filled with voices of reproach and terror to his guilty heart. The future frowned on him full of menace and warning. The present was haunted by a sense of con- scious wrong from which he tried in vain to escape. He knew, too, that he was in her power. These letters which are here in court, and many others not here, arose in his memory. He recalled that one in which he says: "And Mollie, if from any reason what- ever I may change my views or feelings towards you, and I should feel like entering into a matrimonial alliance with any one else than yourself, I will promptly advise you of it." He was about taking 88 MODERN JURY TRIALS. that fatal step, but he had not the manly honor to fulfill his prom- ise. He, however, like one who plans the commission of a crime, took measures for his escape. He was to be married in a few days to the unhappy lady who now mourns in her widowed home, and whose melancholy fate I deeply commiserate; and he knew that, when that fact reached the ears of Mary Harris, her cries, her sobs, her voice of wailing would ascend like perpetual lamentations in the air. She might, in her deep distress, utter his name to the world in such a way as to stain his character as a Christian. She might come near him some day, and remind him that he once took a child from her parents' roof, and broke her heart. Aye, it was in her power to denounce him as false and infamous at all time and places, to pursue him, if she desired, as an avenging shadow, to rob him of peace, and to turn his days and nights into fear and alarm. But if her foot once crossed the threshold of shame she was in the fowler's snare and at his mercy. This evidence can have but one purpose. It aims at the life of the prisoner. It in no wise touches the character of the deceased. It is a bold demand upon the part of Dr. Burroughs for blood. It is the key which unlocks and reveals the meaning of his presence, and of all his evidence in this case. O! spirit of eternal justice, what more is this poor, shivering victim of man's cruel perfidy to suffer! Is it not enough that one drove her mad, and caused her to cry out "lam bound Upon a wheel of fire, that mine own tears Do scald like molten lead ? " And must the brother come now, and struggle to drag this wan, emaciated and stricken being to an awful and ignominious death ? Is he not satisfied with the ruin already wrought ? Are you not ready to exclaim, "Spare her, Dr. Burroughs; oh! spare her. Spare her for the sake of the name you bear. Enough she has suffered in that name. For the love of God and for the sake of His mercies spare her broken life. Do not press and trample on the fallen and undone. She may meet you no more in this world. You may for- get her mortal agonies in the honeyed commendations of your fol- lowers. But there comes a day when the one who murdered her peace, and the one who now seeks to murder her life, will both meet their victim in the presence of the Great Judge, and in a court above the sun, where misfortune is not a crime, and where earthly distinctions fade away; where the poor are rich, and the merciful blessed; where the feeble are strong, and the oppressor's rod is broken; and in that awful presence they will be called to TRIAL OF MARY HARRIS. 89 (answer why, at their hands, Mary Harris was beaten and scourged to madness and death. Spare her; oh! spare her! lest, if you suc- ceed in your purpose to slay her here, she will confront you in the eternal world as a bright angel, with her fair hair dabbled in her own innocent blood, shed by your hand, and there shriek into your shrinking ear, 'False, fleeting, and perjured! '" Alas! how often the great rules of right eternal and unchange- able right are perverted in man's administration of justice! How otten the accused should be the accuser! How often the unoffend- ing sufferer bears the punishment due alone to others! What a scene is this in which we are all engaged! Here, before you, sits one of the feeblest and saddest beings ever born of woman a mere helpless atom, buffeted and driven here by angry and malignant winds. The babe in its mother's arms was never more unconscious of the evil purposes of crime, than the heart of this pale and wasted prisoner. Yet the freezing terrors of the law sur- round her on all sides; the judge upon the bench, with wise and patient calmness elucidating its principles; this jury, listening to the stoi-y of her blighted life, and solemnly weighing the evidence; this crowded and anxious audience watching the result; and men, bearded men, earnestly discussing the issue, whether she may live or die! And why all this? Because, as she said to you [turning to Mr. Bradley], "I have been beaten and scourged without cause." Yes; bruised, maimed and mangled, until the divine gift of human reason gave way, utterly powerless, with less than the instinct of the poorest worm, that resents in blindness the heel that tramples it to dust. And yet this is the being against whom we are to listen to a hue and cry as if she were a monster, a Borgia, or a Hecuba ! Gentlemen, I sometimes tire of life when I see wrong and injus- tice spreading their prosperous branches as the green and flourish- ing palm; when those by whom offenses come in this world, who prey upon virtue and turn it into vice, who sport with innocence in order to poison it, who make a mockery of love and a plaything of truth, go not only unscathed of the law, but even applauded by the Lired panderers to a depraved and debauched public sentiment. Whatever of philosophy I have takes a painful and gloomy form, and I feel that I could say with the great dramatist: " Out, brief candle, Life's but a walking shadow; a poor player That struts and frets his hour upon the stage, And then is heard no more; a tale told by an idiot* Full of sound and fury, signifying nothing." 90 MODERN JURY TRIAIA We behold, for once, at least, in our lives, a human being totally transformed. The change is complete in every respect. Phys- ically, she is no longer the same. Her former buoyant health withers away. The bloom of her face dies out, as it were, in a single night. Her already slight frame becomes still slighter. Sleep, the gentle nurse in whose arms the peaceful invalid wooes the returning spirit of health, fled from her eyes. Burroughs had murdered sleep; and her mind was fixed with an appalling intensity on the memory of the past, which was to her brain as a consuming fire. From this horrible spell there was no escape. No; and hence we see her mind developing its changes in equal pace with her body. It is the seat of the canker, which blighted her whole system, and which no medicinal balm can reach. There was lodged that perilous stuff which no drug can purge from the distracted breast. According to the evidence, she was up to that period the merriest and the most joyous of her circle. The world, the glad earth, the opening day, the bending sky, and the kind faces of friends, were all beautiful to her, and she enjoyed the few years of her unclouded happiness. But now the laugh was gone; no merriment kindled in her eye; the future to her was dead; she lived in the past and it was the charnel-house of all her hopes, and over it hung the mourning cypress. I am reading her condition to you by the light of the evidence alone. I am showing you that effects were following causes. She grew weary of life. Who does not, when all that gives life its value has perished ? This is, in itself, one of the incipient stages of insanity. It is the offspring of that " Black Melancholy " which all authors designate as one of the parent springs of madness. And when this defendant rose that morning from her bed, and murmured her farewell to the friend, whom she supposed to be asleep, had she succeeded in taking her "walk by the lake shore," in the darkness before daybreak, she never would have been here on trial. The winds and waves would have sung her requiem. There might have been an inquest, and the usual verdict. [Counsel cited many authorities and read from experts' testi- mony at considerable length, and concluded]: Here, then, is the whole defense established by the highest evi- dence known to the law. The opinion of an expert is a fact in the case. No other witness can give any opinion at all. Dr. Nichols, therefore, proves as a fact that, from moral and physical causes combined, the defendant has labored under paroxysmal insanity. TRIAL OP MARY HARRIS. 91 and that the act for which she is now on trial was committed during a paroxysm, and under an insane impulse. You have n'u legal right to find a verdict contrary to the testimony of Dr. Nichols, unless he is unworthy of belief, or has been successfully contradicted by other competent witnesses, whose opinions are entitled to greater weight than you attach to his. On this propo- sition I rest securely. And on the uncontradicted statement of this scientific witness, I risk the life of the prisoner. He is the Saint Peter of my faith, and on this rock I build the defense; and neither the power of the public prosecution nor the gates of pri- vate malice shall prevail against it. But we are met at this point with a proposition by the prosecu- tion which I undertake to say is without a parallel in the courts of any country which has been blessed with the light of civilization. Utterly borne down and crushed by the evidence of Dr. Nichols, the gentlemen who represent the Government boldly and without a blush declare that the opinions of men who, like him, have given their lives to the study of the mind in all its various and mysteri- ous phases, are less reliable in the discovery of insanity than the opinions of those who have bestowed no particular attention on this great and difficult subject. The cry of " mad doctors " has been raised, and we heard an appeal against them in favor of what were styled "common sense doctors." Gentlemen, I feel humili- ated that I have listened to such language from such a source. Is there such an unappeasable rage to take the poor life of this pris- oner that, in order to do it, these distinguished gentlemen are will- ing to resort to the lowest and most pernicious arts of the profes- sion? Do they propose to deride the disciples of learning, the devotees of science? Will they stand up here in the noonday of human progress and enter the lists as the avowed champions of ignorance ? Who are the " mad doctors " of the world at whom this persistent and systematic sneer is levelled ? They are those who have made the subject of insanity a specialty, who have given their days and nights to incessant and laborious thought, who have struggled with painful toil to alleviate the direst woes of their fellow men, to cure those wounds which the lash of misfortune inflicts, and to pluck from the diseased mind its rooted sorrows. And is it found necessary to stamp such characters with odium in order to convict Mary Harris? Shall we pluck from the scientific heavens their brightest and boldest luminaries, and accept darkness, gloom, and mist again ? Shall we strike down that blazing galaxy of genius, toil, and progress, where the names of Winslow, Esquirol, Ray, Gall, Spurzheim, Rush, Coinbe, Prichard, Ellis, Hoffbauer, 92 MODERN JURY TRIAL& with others of the shining host, are burning as stars on the front of the sky; and into whose glorious companionship we anticipate but a few years by introducing now the name of Dr. Nichols him- self? These are they against whom the prosecutors invoice the aid of ignorance and prejudice. They have certainly mistaken the age in which they live. The district attorney is nearly two cen- turies in the rear of the still advancing column of human improve- ment. There was a period in the world's history when this assault on men of science would have relaxed the dull features of stupidity into a smile and caused blind superstition to nod its ugly head with approval. There was a time when darkness rested upon the face of the waters in the scientific world, when the voice of learn- ing had not yet brought order out of chaos, when courts of justice were nurseries of bigotry, when mental derangement was judicially interpreted as the possession of a demon, and the sufferer declared to be in familiar communion with the Prince of Evil. We hear much said in regard to the defense of insanity. Many speak of it as a plea manufactured by counsel It is, however, in one vital respect, like all others it must be supported by proof or it falls to the ground. Have we manufactured the positive and direct testimony of every medical witness introduced on both sides ? le this our handiwork? I submit to you and to the candid judg- ment of the country, that if Mary Harris can be convicted under this evidence, if Dr. Nichols can be broken down in this court, not by contradiction, but by declamatory appeals to prejudice, and if finally, the unbroken chain of scientific testimony can be put aside as naught, then the great and settled principles of medical juris- prudence are a delusion and a snare, and the infirmities of the intellect, occasioned by misfortune, constitute no defense for vio- lent and irrational conduct. And why, without one solitary witness to support their theory of the iase, do the prosecutors so hunger and thirst for the convic- tion of this most desolate and bereaved of sorrowing mortals? Why do they clamor so fiercely against the barriers of the law ana of the evidence which encompass her about, in order to drag that sick and fragile body to a miserable death ? Is it punishment they seek ? She has suffered more already than the King of terrors in his most frightful form can inflict. If she had been broken on the wheel, her limbs disjointed, and her flesh torn in piecemeal by the most fiendish skill of the executioner, her tortures would have been merciful compared to the racking which sunders into fragments the immortal mind. There is no arrow in Death's full quiver that can TRIAL OF MARY HARRIS. 93 give this young breast a new sensation of agony. She has sounded all the depths and shoals of misery and pain. She has lived in * A whirling gulf of phantasy and flame." Restore her by your verdict to the soothing influence of friends, of home. Let her go and lay her aching head on the maternal bosom of that Church which for eighteen centuries has tenderly minis- tered to her children in distress. Let her go and seek, in the love and mercy of the Father of us all, consolation for the cruelty and inhumanity of man. * * * But it is claimed that a conviction must be had for the sake of example. You have been told that the people of the District ot Columbia demand it. I would not bring such an argument into court, but when here I will meet it. If it be true that you desire examples for the correction of vice and the preservation of moral ity, I pray you not to commence with the humblest, the feeblest, and the most helpless. But I deny that the condemnation of the defendant is demanded by the people of this capital. Who are they who ask her blood at your hands ? I know this people, and to some extent I think I may speak for them. I have been the recipient of their constant kindness while in their midst, and as a representative in Congress I have, in return, dealt with them in a spirit of liberality whenever I have known their wishes. You were told that the defendant came here from a distance that the States were pouring their criminals in upon you, and therefore she must suffer as a warning to others. Such a statement is unjust to your people. You want justice, and justice alone, administered upon all; and who believes that this girl's life is required as an offering upon the altar of public justice ? I repel this imputation upon the intelligence and humanity of this kind and hospitable district. When you are discharged from your protracted confinement and return to your homes, as you will in a few hours, ask those whom you meet there, whether they desired you to cut the feeble thread of this girl's life by your verdict. I will abide by their answer. To no one has she appeared as the criminal, save to those who con duct and inspire the prosecution. To all others in your midst she has presented the sad spectacle of calamity and misery. Her purity, her gentleness, her guileless t truth, shining out in every word and act, have won to her side in this dark hour, your oldest, your best, and most honored citizens. Her prison abode has been brightened by the presence of the noblest and purest of her own sex, and delicate flowers from the loftiest station in the world have 94 MODERN JURY TRIALS. mingled their odors with the breath of her captivity.* Men ven- erable in years, and strong in their convictions of the principles of immutable right, have been drawn to her assistance by an instinc- tive obedience to the voice of God commanding them to succor the weak, lift up the fallen, and alleviate the distress of innocence. And now for Mary Harris, and in the name of Him who showered His blessing on the merciful, who spoke the parable of the Samari- tan, who gave the promise to those who feed and clothe the stranger in their gates, and who visit the sick and them that are in prison, I thank the people of the capital. Add one more obli- gation for her to remember, until the gra,ve opens to hide her from the world. It is in your hands to grant. The law in its grave majesty approves the act. The evidence with an unbroken voice demands it. Your own hearts press forward to the discharge of a most gracious duty. The hour is almost at hand for its perform- ance. Unlock the door of her prison, and bid her bathe her throb- bing brow once more in the healing air of liberty. Let your ver- dict be the champion of law, of morality, of science. Let it vindi- cate civilization and humanity, justice and mercy. Appealing to the Searcher of all hearts, to that omnipresent eye which beholds ivery secret thought, for the integrity of my motives in the conduct of this cause, and for the sincerity of my belief in the principles which I have announced, I now, with unwavering confidence in the triumph of innocence, surrender all into your hands. CLOSING REMARKS OP DISTRICT- ATTORNEY CARRINGTON. GENTLEMEN OF THE JTTRT You see before you on trial a woman. It is a case somewhat unprecedented in the history of this tribunal. I plead the cause of woman. Go to yonder churchyard. See that mother weeping over the honored grave of her only boy. He has fallen in his country's cause. Who is she ? Nobody, in compari- son with Mary Harris, the heorine of the day. See that wife dif- fusing life, light, joy, and hope around the family circle the idol of a husband's heart and the guardian angel of her children. Her little curly-headed girl is kneeling by her side, and repeating her evening or morning prayer. Rise from your knees, my pretty child; you are wrong. When your little heart is wrung, don't go, as your hymn-book says, and tell Jesus. Arm yourself with a It may not be Improper to state that Mr. Voorhees here alludes to a beautiful bouquet ent to the prisoner by Mrs. Lincoln, before the White House had been darkened by mur- der, the center flower of which signified, in botanical language, " Trust in me," TRIAL OF MARY HARRIS. 95 deadly weapon, and avenge your own wrongs with the red hand of violence and of crime. Mary Harris, the model of female excel- lence, held up before the public for the admiration and imitation of our mothers, wives and daughters, has said that the ladies of Chicago carry deadly weapons and avenge private wrongs, whether real or imaginary, by private means, and we intend to introduce this fashion into the city of Washington. Permit me here to say, that if the voice of woman could be heard gentle, lovely, virtuous woman she would denounce this slander of Mary Harris and the Devlins as an insult to every honest and virtuous lady in the land. I yield to no living man in admiration for true female character. I have known the inexpressible tenderness of a wife's, sister's, and a mother's love. You have all. We each have seen the noblest exhibition of true female character during the unhappy strife which has existed in our country for the last four years. Did you ever go to yonder hospital ? See that young man. He is pale, attenuated, and emaciated. He has received some terrible wound, while fight- ing in his country's cause. He is far away from family and friends. The agents of the Government are doing all that humanity and duty can suggest for his comfort and relief, but he is not satisfied. No kind mother stands by his bedside to cool the fevered brow. But hark! He hears woman's gentle voice, perhaps one which he has never heard before, but it is woman's voice. It falls upon his ear like the name of home in some distant land, or rain-drops in a thirsty desert. She administers to his wants, and whispers words of comfort and of consolation. He revives; he shoulders his mus- ket and strikes another blow for his government and his flag. Per- haps his last hour has come. Ever faithful, gentle woman, points him to a Saviour's dying love; and as the world recedes from his riew, like a true and valiant soldier of the cross, he triumphs over death and the grave. When the noble daughters of America were kneeling by the bedside of the dying soldier, where was Mary Harris? That was a time when an appeal was made to every woman who had a heart to love her country and her race. Where, then, was Mary Harris, the model of female excellence ? Arming herself with this instrument of death, practicing the use of deadly weapons, going in company with one of the Devlins to Quincy street to a house of assignation without a protector, and at last imbruing her hands in the blood of one who had drawn his sword in his country's cause; and you are called upon to approve, justify, and applaud this cruel and bloody deed. Are we Christians ? Do we live in a Christian age, a Christian community, and do we wor- ship the Prince of Peace as the only true and living God ? Gen- 96 MODERN JURY JURY. tlemen of the jury, have you considered the awful responsibility that rests upon you ? I have, and I pray that God may give me grace to discharge my duty. Appeals have been made to your sympathies; and that is. all, as I will show. Sympathy! sympathy! sympathy! and nothing else, and with unusual zeal and eloquence. Good Heaven! Behold what an array of counsel. In Joseph H. Bradley you behold the Ajax Telemon of the defense. In my friend William Y. Fendall you behold the young, the ardent, the armorous Tydides, not cast- ing his javelin at the Goddess of Love as she flies through the air on her way to heaven, but, with his armor off, kneeling at her feet. [Laughter.] In Judge Mason you behold the sweetly speak- ing Nestor of the Grecian camp. [Laughter.] In Judge Hughes the wise, the prudent, the cautious Ulysses. [Renewed laughter.] In the Hon. Daniel W. Voorhees you behold the fierce, implacable, irresistible Achilles [laughter], and even old Agamemnon (point- ing to the judge on the bench) himself, can never look at the gen- tle sufferer without a sigh expressive of his sympathy; and there sits the lovely Helen, bathed in tears, surrounded by her female attendants, urging on these sturdy warriors to deeds of superhu- man valor. Here I stand, aided only by my efficient and accom- plished assistant. Gentlemen of the jury, am I not an object of commiseration ? I saw some of you crying, but I think you cried in the wrong place. Were you concerned for me ? O! no! gentlemen, don't be alarmed. Courage, gentlemen! I stand clothed in celestial armor, behind the broad aegis of the law, and their javelins fall harmless at my feet. I hold up the law, and thus I roll back the tide of sympathy that has been pouring into the jury box. I remind you of your solemn oaths, and then you dry your tears, and nerve your- selves to the discharge of your stern and solemn duty. Now, gentlemen, as my friend, Mr. Wilson, said, what do we care for Mary Harris ? So far as she is concerned, you may put her in a bandbox and send her home [laughter] not to the Dev- lins, however God forbid! [renewed laughter] but to her father; and I will tell you, before taking my seat, how it can be done without doing violence to any man's conscience. Gentlemen of the jury, the curtain rises. The scene is laid at a boarding house in the city of Chicago. The heroine of the bloody tragedy makes her appearance a good, sprightly, black-haired girl. She was without either father or mother at that time. It ia then she forms the acquaintance of Louisa Devlin, another beauti- ful, charming and accomplished lady. Louisa Devlin invites her TRIAL OF MARY HARRIS. 97 to go to her millinery establishment. Prompted by an " insane impulse," she accepts the invitation. [Laughter.] What sort of a mil liaery establishment was it ? I wanted to find out, and in the most courteous and respectful manner, for no one is more courteous to a lady than myself, I asked her how many young ladies she had in her employment. She threw herself back on her dignity and said, " That is my business, and none of yours." There is Mary Harris in a millinery establishment, the character of which the pro- prietress is ashamed to describe. Judge HUGHES May it please your honor, I dislike to interrupt counsel, but where, in a closing argument, the evidence is clearly misstated, an interruption is not only tolerable, but it is the duty of counsel, whose client is affected thereby, to so interrupt. There is no evidence here whatever as to the character of Miss Devlin's house. It is true the district attorney did ask her how many per- sons she employed in her house, and she replied, " That is my busi- ness." An appeal was made to the court, and the court directed her to answer the question, but a discussion springing up at the time, the question was lost sight of, and no answer was given. The DISTRICT ATTORNEY May it please your honor, I did not interrupt counsel in their argument, and I hope they will not in mine. If I misstate the evidence, which your honor knows I will not do intentionally, I have no doubt you, sir, will correct me. The COURT A counsel, in the closing argument, knowing that there is no one to come after him, ought to studiously keep himself within the prescribed limits, unless he wants to be interrupted at every stage. He ought not to pervert or misstate the evidence I do not mean to say that you have done so in this case but I do think that there is nothing in the refusal of Miss Devlin to answer that question to justify the suspicions which have been inferred by the counsel. The DISTRICT ATTORNEY Is that a question of law, your honor ? The COURT (with emphasis) It is a question of law, sir. The DISTRICT ATTORNEY Gentlemen, after the attack which has been made upon Dr. Burroughs The COURT (very earnestly) You shall not retaliate upon Miss Devlin for an attack upon Dr. Burroughs. You must confine your- self to the legitimate application of your remarks to the evidence of the Misses Devlin. It is an abuse of your position to make such an attack as that upon such grounds. The DISTRICT ATTORNEY What had I said, may it please your honor ? The COURT You know, sir. 7 98 MODERN JURY TRIALS. The DISTRICT ATTOBNEY You had not heard, sir, for I had not completed the sentence. What I intended to say was this: That after the attack which had been made upon Dr. Burroughs by the learned counsel, had I not a right (they justifying that attack upon the testimony of the Misses Devlin) to attack her testimony ? The COUBT You shall not retaliate upon the Misses Devlin. You have a perfect right to attack the Miss Devlin's testimony as to its inconsistency, either with itself or with the other evidence, but to launch out into such a latitude of inferences as that you were going upon, in regard to the character of the house of the Misses Devlin, whose reputation has not been attacked, either for truth or in any other respect, I cannot permit it in a closing argu- ment. The DISTRICT ATTOBNBY You will bear in mind, gentlemen of the jury, that I did not interrupt the learned counsel. You hear* 1 , the attack upon Dr. Burroughs, of which I shall have something to say hereafter. You know I must not dare to lay my fingers on the Misses Devlin. Mr. Wilson, assistant district attorney, during these interrup- tions in the course of Mr. Carrington's argument, advised him to take his seat. Mr. Carrington said, " No, I will complete my argu- ment." Mr. CABBINQTON Again I say, and I will endeavor to argue, under the instructions of the court. The COUBT Well, proceed. The DISTBICT ATTOBNEY I will proceed. The COUBT In order. 1 am aware that there are some persons who have a prejudice tn ministers of the Gospel, and are glad of an opportunity to assail them. And there are some persons, also, who have a prejudice to members of Congress. I will put a "hypothetical " case. Upon one occasion I put an old gentleman upon the stand to prove the bad character of a witness. He testified that he was a person of very bad character. What did you ever know or hear of him doing wrong ? Nothing in particular; but I have seen him day after day, and night after night, associating with members of Congress and other loose characters. (Laughter.) Now, this is very improper. I like members of Congress just as well as other people, when they behave themselves. I have no prejudice against any class of my fellow citizens. You know my sentiments on this subject. I have for years been warring against sectional feeling and prejudice of every kind. TRIAL OF MARY HARRIS. 99 But, gentlemen, I understand the object of the assault, and I think you must perceive it. These gentlemen know they cannot injure Dr. Burroughs in the estimation of the public, or in your estimation, but they desire to divert me from the prosecution of Mary Harris to his defense; to divert your attention from the murderess to the brother of the deceased; but I am too old a war- horse to be caught in that way. What is the rule of law, gentle- men, on this point ? There are three ways of contradicting a wit- ness. First, by assailing his reputation for veracity ; and why didn't they attempt that? They dared not do it, for the reason that he stood too high. He told them who he was where he could be found; and yet not a witness, male or female, with the host of friends that this beautiful murderess has, could be found to assail his reputation for veracity. The second mode of contradict- ing a witness is by showing that he has made different statements at different times in regard to the same transaction. Was not the statement of Dr. Burroughs clear, consistent, honest ? He would say now what he said yesterday, or would say to-morrow. The third mode is by proving a different state of facts by another wit- ness. What witness contradicted him ? (The district attorney here turned towards Miss Louisa Devlin, paused for a moment, and then said) : Yes, Louisa Devlin ! And how does she contradict him ? Why, in regard to an immaterial fact; and you will, your honor, par- don me, for I do not wish to go against the instructions of the court is John C. Burroughs, the honest, Christian gentleman, to be denounced in court, and is my mouth to be sealed when they rely upon the testimony of this Louisa Devlin ? Who is Louisa Devlin ? When asked about her business, her color would come and go. By her own admission, she went to an assignation house on Quincy street on a fool's errand. Mr. BRADLEY. I must interrupt the counsel there. Louisa Dev- lin never went to that house. Mr. CAREINGTON. Jane Devlin did. (Turning to Louisa Dev- lin.) I wonder if any man ever called her ducky [laughter], his darling, his rosebud, or his sugar-plum ? [Renewed laughter ] Do you suppose it would have given her paroxysmal insanity ? [Great laughter.] I have no doubt it would have excited her very much, for, judging from her looks, she ain't used to it. [Renewed laughter.] And this is the woman upon whom they rely to con- tradict the honest, Christian gentleman! She is indeed the lago in this bloody tragedy; for Mr. Bradley told you, in his opening address, that this was the old story of Othello. It was hatred and 100 MODERN JURY TRIALS. jealousy that nrged Mary Harris to the commission of this atro cious murder; for you remember she told her lawyer that her love had turned to hatred. And, gentlemen of the jury, it was the desire of money that prompted Louisa Devlin to fire the- jealousy of this love-sick girl, prep watery to a suit for a breach of promise of marriage, expecting to share the damages, and I will prove it from the evidence before taking my seat; for, notwithstanding the eulogium pronounced upon her, I say that she is a woman without delicacy, without refinement and sensibility, for during this trial she has sat here giggling while her friend was on trial for her life, as though she were on a debauch in Quincy street, Chicago, at the house of Ellen Mills. Mr. BRADLEY. May it please your Honor, I denounce such an accusation in the strongest terms that man can. There has not been one word of reproach cast upon Miss Devlin from the begin- ning to the end of this trial, and I do say that no gentleman would us.e such language towards a woman. The DISTRICT ATTORNEY. I shall not be betrayed into any indiscretion, if the object is to insult me. I have only discharged my duty as in my humble judgment seemed proper. I make the same remark in regard to the attack upon Dr. Burroughs. Mr. BRADLEY I do not wish to insult you; but I do say the man who denounces this woman without the evidence in the case warranting it trespasses beyond the license of counsel, and abuses the character of gentleman. The DISTRICT ATTORNEY. All I have to say is, that I return the insult; your conduct has been ungentlemanly. Mr. BRADLEY. You can return the insult as much as yon please. I despise you. Say what you please to the jury, I shall not inter- rupt you again. Here is a chip on my head: come and knock it off. [Laughter. About this time the court called the marshal.] [The quarrel with the court and side remarks of district attor- ney with counsel are not commended.] ***** Prompted by "hatred." Out of her own mouth do I condemn her. Prompted, not by " insane impulse," but by hatred, she comes to the city of "Washington to institute a suit for a breach of promise of marriage. She does not put her writ in . the hands of the mar- shal, but she goes in person to the Treasury Department let us a may be better comprehended after a half-hour's study of the ques- tion. The elaborate remarks of Chief Justice Ryan, in another chapter, and the exhaustive review of the subject herewith given, are alike instructive and furnish excellent reading. We have a right to look for something more than common authority in an address to law students. The high character of both orators on this subject, their eminence and learning, entitle their researches to a most careful consideration. The aim of a lawyer is to get wis- dom. The foundation of oratory is wisdom. Here, then, is a clear fountain from which to draw condensed information on trials by jury. Mr. MAT said: I shall use the hour which custom gives me on this occasion in speaking to you of one of the great institutions of English justice and the common law; an institution of high concern to the State and all its citizens; of supreme and practical interest to every law- yer " The trial by jury." It is a theme of most ample dimensions, and I shall not under- take to give all its history or all its learning. In the limits of such an address as this, I shall only take a few views of the subject, and these chiefly of a practical character. About to enter, as these young men are, upon the practice of the law, I can think of no topic more fruitful in suggestions to me, or likely to be of more interest and profit to them. ORIGIN AND HISTOBY OF TRIAL BY JURY. The trial by jury is Anglo-Saxon in its origin; a part of Anglo- Saxon jurisprudence. Greece did not know it, nor Rome. The Grecian dicasts, the Roman judices, the Saxon compurgators these may have suggested and helped to form it, but each essen- tially differed from it as we know it to-day. For the institution in its present form we go back in English history to the reign of Henry II., that same sagacious, far-seeing and intrepid monarch 166 MODERN JURY TRIALS. who waged such itout and unyielding battle with his powerful and ungrateful subject, Thomas a Becket, for the supremacy of the civil over the ecclesiastical power. In the long line of English sov- ereigns, none has done a greater service to his countrymen and his race than this statesman king, who put the church below the state and incorporated into English jurisprudence the trial by jury in the place of the senseless and barbarous trials by duel and by wager of battle. Since the Grand Assize of 1176, a period of almost seven hun- dred years, trial by jury has been one of the sacred muniments of English liberty. While it was yet in its infancy the sturdy barons at Runnymede took care to make it a part of the Great Charter which they wrung from the faithless and treacherous John, the undu- tif ul and degenerate son of its immoral founder. And since Jfagna Charta, in every struggle of the British people against the encroach- ments of the crown, in every popular upheaval or revolution in every advance towards a larger and broader liberty, the recognition and maintenance of this institution has ever been stoutly insisted upon, so that to-day it would be easier to uproot the foundation of the British throne itself than to tear this venerated landmark from the British constitution or the affections of the British people. The revolution which dissolved our political allegiance to the Brit- ish crown did not deprive us of our inheritance of English liberty, and so trial by jury descended to us on the broad stream of the common law. We share it now with every English speaking peo- ple. It is not only held in traditional, popular reverence, but it is solemnly incorporated as an inviolable right into the constitution of the United States, as well as the constitution of most of the States of the Union. WHAT IT 18 ITS MISSION TO FIND THE FACTS. What, then, is this trial by jury which is thus highly prized and sacredly preserved by the foremost race and the two leading nations of the world? It is an answer to this question, in general and pop- ular terms to say that it is an institution of English and American jurisprudence designed to assist in arriving at the truth in private disputes in relation to property and personal rights, and in cases between the State and the individual for the violation of public law. But it can only approximate to this end. Every form of trial known to the law is but an approximation to, a struggle and endeavor after, the truth and justice of the case. Only with God and in the realm of exact science, working through fixed laws, can absolute and certain truth be reached. For the rest, and in all TRIAL BY JURY. 167 the vast domain of moral and legal truth we must feel after and attain to that which is true and just by such aids and lights as God has given us in the reason and conscience of men. In our administration of justice it is the province of a jury, a trial jury, of which I am speaking, to find the facts. This is a clear and single process, and measures their duty and responsibility. But every case, of course, involves more than the facts. The law of the case is involved also that which gives to the facts all their signifi- cance and consequence as a basis for the claim of plaintiff or defend- ant. The questions of law may be many or few, but for these the jury have no responsibility. They are to take the law as given by the court, nor are they to ask any questions as to its abstract moral justice, but simply to find their verdict under it. So it will be seen that the work of a jury, though of controlling importance in a trial, is not the whole of a trial, but rather an incident of it. The entire work to be done, the full problem to be solved, is one of a dual nature, of mingled law and fact, and a trial by jury in a court of law is a carefully adjusted piece of judicial mechanism, wheel within wheel, the most perfect and the most complete which human wisdom can devise. THE JURY SYSTEM DEFENDED JURY BETTER THAN JUDGE EVEN IN CIVIL CAUSES. Does it need that I should defend at this late day, an institu- tion thus venerable in years and hallowed by popular affection ? Certainly it would seem that I ought not to be called upon to do this, and I shall not, at any great length; but I do not forget that the men of this generation, wiser as they unquestionably are in many things than their fathers before them, have begun to question institutions which have stood for ages, and that the jury system has not escaped attack. To some restless innovators the mere fact that it is old is an argument against it. But every considerate and thoughtful man will, I think, hesitate before condemning an insti- tution which has been in continued daily operation for more than twenty generations of men; which has become intertwined with the history and traditions of his country and his race, and whose germs are found away back in the earliest civilizations. Progress, reform, judicial reform these are good and admirable things, but we should take care to know what we do in their name. John Ran- dolph once said, in Congress, that "change is not reform." and adding to his words, I may say, with still greater truth, that destruction is not reform. To abolish the trial by jury, to sweep out of use and out of existence with one blow the jury system, 168 MODERN JURY TRIALS. would be & terribly destructive and radical measure, a direct impeachment of the wisdom of the past and a bold and hazardous experiment upon the future. Happily, there is no great danger that this will ever -be done. For the jury system finds its justification in the facts of human nature, which is essentially the same in all ages; in its practical utility and convenience, and in its close and inseparable relations to civil liberty. I say, in its practical utility, and here I touch what is regarded as the chief and strongest point made against it. Mauy who would retain it in criminal cases and for its possible service in some great public crisis, nevertheless oppose it in civil causes and in the common every day business of the courts. While agreeing with them fully in the reservations which they make in the greater things, I also believe that it is good and useful in the smaller things as well; in civil as well as criminal cases, in ordinary as well as extraordinary times. First, I believe that a jury is always the best and fittest tribunal to find the facts of a case. I hold this to be true in the very nature of things. I know the argument that is used upon this point, and what is said about unlettered juries, about difficult mental pro- cesses, and about the trained and disciplined mind of the judge. But here I believe is the better test. The facts to be found in a trial in the courts are generally the facts of common life. Tin- deductions and conclusions to be drawn from these facts, in ni in- cases out of ten, are the deductions and conclusions of ordinary human experience. These do not so much require learning and logic as practical common sense, knowledge of human nature as seen in men and not in books, and intuitive perception of right and wrong qualities oftener found combined, I think, in the jury box than upon the bench. It will not do to say, that because the judge is generally the superior in natural endowments of the average juror and ordinarily is his better in mental training and acquirement, that, therefore, he will the more surely and certainly draw from a mass of tangled facts the right and justice of the case. For facts cannot be dealt with like principles or arbitrary scientific rules, and right and jus- tice are not always to be arrived at like mathematical result*. Often the very learning and discipline of the judge may have unfitted him for this work by educating him away from the people. And it should not be forgotten in this connection that usually the facts in a case are narrated by living witnesses in court, whose look and manner and the probability of whose story should be scanned and weighed by men practiced in the ways of human TRIAL BY JURY. 169 nature, and not easily to be imposed upon. But grant, if yea please, that there is no advantage in these respects with the jury on the grounds which I have claimed; is there nothing still in the fact that the verdict of a jury is the aggregate wisdom of twelve men, while the finding of a judge is but the wisdom of one man ? Do the scriptures say untruly, then, and is there no safety in a mul- titude of counsel ? Again, it may well be urged as an argument for a trial by jury in civil cases that the judge has already enough to do, to preside in his court, to dispose of routine and exparte business, and to decide all questions of law which may arise upon a trial, including his final instructions or charge, without being burdened with the finding of the facts also. There is reason enough, certainly, why he should, if possible, be relieved of this. We should not ask too much of one man, when we can have the work of many. Besides the find- ing of the facts and the application of the rules of the law to these facts are two entirely separate and dissimilar processes which do not help each other. They should therefore be given to separate hands to do. If I am right in these things, then the jury system is justified on the score of convenience and utility, even in ordinary civil dis- putes, and the objection of costs and expense is of too trivial a nature to be weighed against such solid public advantages. The State and the people can always afford to pay for that which will aid the cause of justice in any degree, and nothing can possibly be so expen- sive and costly to them as the denial of a full and fair trial to any suitor in court. BUT CHIEF IMPORTANCE AND GLORY OF TRIAL BY JURY IN CRIMINAL CASES AND AS AN ALLY AND BULWARK OF CIVIL LIBERTY. But it is in another and greater field that the trial by jury becomes a matter of supreme concern to the citizen, and rises to the dignity of one of the chief props and bulwarks of civil liberty. Here its use cannot well be questioned. Here, certainly, it needs no defense. The leaning of the law, in criminal causes, should be to the side of protection and humanity. And so it is declared to be. The State is great and powerful, and overshadows the individual; and though it be necessary for its good that crime be prevented and punished, yet the State is not greatly harmed by the escape of a guilty man. But the conviction and punishment by death or lingering imprison- ment of an innocent man is a thing unspeakably shocking. No care can be too great to prevent such a tragedy. " Better," then, says the humane maxim, "that ninety-nine guilty men should escape 170 MODERN JURY TRIALS. rather than one innocent man should suffer." And all our human hearts and sympathies respond amen to this. So the law of England and America the common law has built up for ages its impregnable wall of protection around the citizen. It has covered the accused with the shield of all its presumptions in favor of innocence, and tenderly, humanely giving him the ben- efit of every reasonable doubt. And to make sure that he shall have no injustice done him, it has given him the sacred right of a trial by a jury of his peers, where only a unanimous verdict of twelve men shall take from him his good name, his liberty or his life. Not to any single man, however honest or wise, however trained or learned, will the law give over such supreme and terrible functions. Is not this wise as well as humane ? Would it be well to change this rule and put such tremendous issues into the hands of a single judge and make him pass upon the law and the fact also, of guilt ? I think nobody will thus contend. Whatever may be thought about the wisdom or policy of jury trials in ordinary civil disputes, every lawyer and every right thinking man will wish the jury system retained in criminal causes. And there is another reason still, even graver and deeper than any I have yet named, why the trial by jury should never be aban- doned. Not alone is it a protection and a shield to the individual citizen, but it is also a chief pillar of support to that great civil fabric in which are bound up the rights and liberty of every citizen of this country and of England. The right of a trial by jury, a great popular right, a right belonging to the whole people, is needed in the State to guard against tyranny and oppression by the gov- ernment. In the mother country, this right expressly named in Magna Charta, of a trial by a jury of his peers, has been to many a noble English patriot the open door of escape from the blood- thirsty minions of a tyrannical king. Here we have no favored classes; we are all peers, each of the other, but we all belong to the people, and a jury is pre-eminently a tribunal of the peopltw Thus, as a fortress and citadel of liberty in which the citizen may take refuge in calamitous times of public commotion or danger, when the safe ways of the State are broken up, and the hand of power is outstretched to bloody and violent deeds of oppression, the trial by jury is worth all that it cost in the long struggle in English history to secure and maintain it. And this great reason of State must therefore be added to all the other solid and weighty considerations which uphold the jury system. TRIAL BY JURY 171 THE \VOEKIKG OP THE SYSTEM ITS DIFFERENT PARTS. How does this institution, so important to the citizen and the State, and so intimately connected with the administration of the law, meet the ends for which it was designed, and what is needed for its true and harmonious working? Let me glance now at the trial by jury as we know it to-day, in this country, with its usual appointments and surroundings. I want to analyze some of its leading elements, and to speak of some of the duties which it imposes upon its chief actors. For the trial by jury means more than the jury, merely, and its duties. There, besides the jury, is the judge who presides; there are the parties, the contending rei of the suit and their witnesses; and there, finally, to complete the scene, are the advocates for the respective sides. Each of these parties is indispensable to a trial, to say nothing of sheriff and clerk, and other officers and appendages belonging to a court. Each is a portion of the whole, and all must move together to reach a judicial result. Here is the law's mechanism; the wheels and cogs which perform their distinct and separate offices. But this is no inanimate machine which is now set in motion; no material contrivance of human ingenuity, working with wood or stone or iron, and for a material purpose. It is rather the delicate and profound adjustment of the subtle and imponderable forces of the human mind and soul; the perception, the reason, the judgment, the conscience all called into action, and all com- bined in the effort to reach those two grand moral ends truth and justice. All this gives dignity and seriousness to such a proceed- ing. So, also, is there something essentially picturesque and dra- matic in every trial by jury. It is always a living panorama of human life and experience, which is enrolled in a trial in a court of justice; sometimes grotesque and ludicrous as any comedy; some- times deep and awful as any tragedy. THE ACTOE8 EST A TRIAL THE JUDGE. Only a hurried glance can I give to the actors upon this stage. First, there is the judge, who presides, and declares the law. His part is a great one, and for him we have all inherited a traditional reverence. At the name of his title, there rises before our minds, from the awful mists and shadows of the common law and its his- tory, the august form of the ideal judge, sitting with stately dig- nity upon the judgment seat, holding with even and steady hand the great balances of justice and equity; with the law's majesty upon his brow, and the law's terrors in his eye, and robed in spot- 172 MODERN JURY TRIALS less ermine, type and emblem of the whiteness of his character and his judgments. Alas, that this great presence should so shrink and vanish away when we look upon some of our living judges! But let us not expect too much of our judges especially while we pay some of them so little for they are but men like the rest of us. I do not speak here, of course, of our law judges proper our judges of courts of last resort but only of nisi pritu or trial judges. The chief qualifications and duty of a judge, who presides at a jury trial, can be easily and briefly stated. First of all, of course, a judge should be honest. Without this jewel in his crown all the rest is worthless. Nothing can make up for this. It is bad enough to be a dishonest man or lawyer, but a dishonest judge is an abom- ination to men and a grief to the angels. He poisons a clear foun- tain from which all the people must drink. Let him ever be held in utter abhorrence, whatever his abilities; even if he be great and wise as Bacon. Next, a judge should be impartial. The law is equal, the law is no respecter of persons; and a judge is but a min- ister and servant of the law. His duty, then, in this respect is plain. Then, a judge should have dignity. I do not mean that opaque and owlish dignity which is simply ponderous; but that which is lighted and lifted up by grace and intelligence ; the easy presence and the cultivated manners, combined with the high sense of personal honor and the lofty judicial purpose; all making a judge who adorns as well as honors the bench. Such a judge I saw ten years ago, sitting in a case of murder, in one of the courts of the city of New York, and whenever I see that man's name, as I frequently do, for he has since filled a high executive office, and become a distinguished leader of his party, and one of the public men of the country, I recall him as I saw him then, presiding with that blended gentleness and firmness, and with a grace and finish of judicial manners which I shall never forget. And a judge should have dignity and weight of character aa well as dignity of presence and manners; for when he takes his seat upon the bench, men's eyes will see the man who is behind the judge. For myself, I esteem this one of the most necessary and desirable qualities for a judge; and it is one that I think is too much overlooked in these later times, in our selection of judges. This may be partly owing to the vicious method of choosing our judges by the caucus; but it is certain that there has been a great decline in this respect, in many quarters, and that there is danger that the bench may lose that traditional respect and reverence with which it has always been regarded by the people. The great TRIAL BY JURY. 173 judges have nearly always been men of high personal character. We venerate the names of Hale, of Mansfield, and of Marshall, not more for the broad, clear intellect and the deep learning, than for the lofty dignity of character, the high moral purpose, and the penetrating intuition of justice, which like unfailing springs flowed out into the clear pages of their illustrious lives. Turning now to the intellectual furnishing of a judge, it is easy to see what we want far easier than to find what we want. First of all, a judge at nisi prius should have a clear head and a decisive will. He should apprehend readily and decide promptly. There should be no confusion or irresolution. A jury trial, with every- body waiting, is no place for a judge to doubt, and read law and ponder. It is of first importance that he decide all questions at once, so that the trial may proceed, and, if he makes mistakes they may be corrected by a court which can take all the time it wishes. Next, and as a most important qualification, a trial judge should be a man of broad common sense, a man who understands human nature at first hand, on the witness stand, in the jury box and in the bar. If, to these qualities he can add broad and deep learning in the law, it is well, and this will fill out the perfect picture and model of a great judge. But I put this qualification last in the order, for the reason that it can better be dispensed with than any of the others. Learning alone will not make a judge; nor even learning joined to high personal character. Something more is needed. The native hue of resolution must not be sicklied o'er with the pale cast of thought. He must be a man of action, with faculties all alive and alert, a man of honest heart and sound head, and firm will, and knowledge of every-day human nature, who successfully presides over the always arduous, and sometimes stormy and exciting scenes of a trial by jury. The greatest judges are born judges, having, like the true orators and poets, the royal commission of nature, impressed with the seal of God himself, to attest their right to discharge the high duties of the bench. THE PART OF THE JURY WANT OV RESPONSIBILITY IN JURORS. I shall say but a word of the part the jury plays in the trial, and that only in regard to the character and duty of its individual members. I have already spoken of it in its collective form and as an institution of the law. The theory of the trial by jury is and this is held to be its chief excellence by one of its ablest eulogists that the jury is a tribunal suddenly called from the body of the people to try the facts of a case, and that after discharging that 174 MODERN JURY TRIALS. duty, it as suddenly dissolves and returns to the people again. It is a tribunal, therefore, which offers little time or opportunity for tampering or corruption, before it begins its work, and when that work is done it disappears so suddenly and completely that nobody can hold it to account. I know it is the policy of the law to pro- tect the jury from any civil or criminal responsibility for its ver- dict; and this exemption from account has given it a freedom and independence most necessary to its highest usefulness. This, indeed, is a great merit in the jury system, but it gives rise, at the same time, to one serious, practical defect, which every lawyer has had occasion to notice. I refer to the want of individual responsi- bility in juries. It is easy to see how this comes. Each juror is put into the box ignorant of the case which he is to try, and this very ignorance the law encourages, as a test of his impartiality. He looks about him and sees eleven other men, each one as ignorant of the case as himself, and each with a responsibility as great as his own. He has nothing to do but listen; he is not called on to say anything; he is charged to refrain from declaring his impres- sions to his fellows, even; and when all is done, and the case is submitted, he casts a silent, unrecognized ballot with the rest. Even should discussion arise in the jury room, and he be called on there to express his opinion, the law will seal the lips of all who hear him, so that what he says and how he votes may never be known to the outside world. Under these circumstances it is natural that an indolent or timid juror should fail to give the case an earnest, thoughtful and conscientious attention; that he should sink his individuality in the mass, and hide his own responsibility behind the eleven. It is for this reason that the law and public duty alike require of every individual juror the full and independent exercise of his own judgment and conscience in every case. I think it would be well if this duty could be emphasized from the bench. The verdict of a jury should stand for the aggregate judgment, intelligence and conscience of twelve men. Of course, under our system, and with the exceptions allowed, it cannot represent the highest intelligence. But with some exceptions, chiefly in the large cities, and growing out of improper and corrupt selections by ignorant or dishonest officers, our American juries are supposed to represent, and do gen- erally, I think, represent the average intelligence of our great middle class. Every man who submits his case to a jury has a right to such a verdict as I have described. That he does not always get such a verdict, we know, and frequently have occasion to lament. It is because our jurors do not feel their personal TRIAL BY JURY. 175 responsibility and do their personal duty in a case where they sit, but evade this duty and responsibility in the mass, each hiding behind the other eleven. It is for this reason that I confess to having always had a meas- ure of sympathy for that much abused and denounced individual, the disagreeing or minority juror. I cannot always bring myself to join in the chorus of denunciation, which is set up over this poor Ishmaelite of the courts. Why should he always be thus assailed ? Does it necessarily follow that the other eleven are right, and he is in the wrong? Besides, is there no question of conscience here? It may be a case involving directly a great question of right and wrong; one whose decision is to be followed with consequences which do not simply take away money or property, but blast char- acter, deprive of liberty, or take human life. On such a question ifi he to follow other men's judgments and take other men's con- sciences ? He has taken a solemn oath for himself to find a true verdict; what shall we do with that ? If he thinks the crime not proved, shall he consent to send an innocent man to the dungeon or scaffold on other men's judgments and oaths ? Here is a difficulty which all must see. I know it is frequently aggravating, in small cases on the civil side, and especially on ques- tions of mere damages, to have verdicts prevented, and parties and the public put to expense for the mere obstinacy of a single juror. But while this is so, who shall say that in the larger and graver cases which I have supposed, it is not the juror's duty to stand firmly to what he thinks is right, notwithstanding his fellows are of another opinion? Must he not justify himself to his own con- science ? Can we denounce him in such a case, and join in accla- mations over men, who in science, in government and religion, have stood out stubbornly to the end against greater odds not one to eleven, but one to eleven hundred or eleven thousand and more and who have been exalted to the very heights of honor and fame, and pronounced immortal heroes for the act ? Let us not be unjust or inconsistent. The disagreeing juror, by the very fact of his disagreement, shows that he has a mind of his own, and that is a good deal. Commend me always to a man who has a mind of his own and thinks for himself. It is better to think wrong some- times than not to think at all. In this world of unthinking agree- ment and conformity, where so many men seem to have no minds of their own, and only wait to see what others think, I cannot help admiring the sturdy Anglo-Saxon independence of the one juror, who stands out against all the rest. It is really refreshing once in a while, to find a man who will sit up all night, without meat 176 MODERN JURY TRIALS. or drink, for his opinion and keep eleven other men up with him! There is no sanctity about the verdict of a jury. It may be wrong and false like the greater verdicts of a sect, a party, or a nation. Who does not know that whole nations and peoples have some- times, yes, frequently, been in the wrong, and rendered false ver- dicts, and cruel verdicts, which have been set aside in the great court of history. The brave minority, which opposed those ver- dicts, even unto death, have earned the gratitude and received the plaudits of mankind. THE JUBY ADVOCATE HIS NECESSITY. I come now to a most important feature in the trial by jury; one not only most essential to it, but of peculiar interest to those whom I address. I am to speak now of the advocate, his necessity, his qualifications and his duty. Here, too, while I have much to say, I must necessarily be brief. The great subject opens out before me in many inviting ways, but I must not follow them too far, lest my hour shall close upon an imperfect and incomplete picture of what I wish to present. Only a word shall I say of the necessity for the advocate in the trial by jury. I am not here to combat or argue with that igno- rant and vulgar misapprehension of the law's justice, which would abolish lawyers and advocates. Widespread as this prejudice sometimes seems to be, it is so utterly destitute of reason, and so plainly gives way before the least reflection, that it never takes any tangible form or shape, but lives only on men's tongues, as a thoughtless and flippant accusation against the bar. It has no solid influence in society or the State. Every man who reflects a moment, will see that an advocate is indispensable to a trial by jury; just as indispensable as the judge, or the jury itself. Anglo- Saxon justice, the justice of the English law, does not condemn a man unheard. It gives him the fullest and fairest opportunity for defense. It will hear what the State or his adversary says against him, and then he will hear what he has to say on the other side. In short, it hears both before it decides. The trial is in a court of law, and it is the law which governs and controls in every case. But the law is a great and abstruse science, and only those who make its study a life work, can understand and administer it. The great body of the people, of course, cannot know or master this science. Hence the necessity for a class of men, trained and edu- cated in the law, whose duty and business it shall be to stand in th courts and assist in the application of i's rules and principles to the thousand varying cases of fact, which arise in the clashing of TRIAL BY JURY. 177 men's interests, rights and passions, in the daily march and whirl of the world's affairs. And so in all ages and in all nations, where there has been any approach to civilization, the lawyer has been found. Greece and Rome had him, though they did not have the trial by jury; and indeed, he has flourished in past ages, and flourishes to-day in every country on the globe, where any form of trial is known, so indis- pensable is he to the very idea of a trial. He is ordained in the justice and humanity of the law to represent and plead for those who cannot, in the very nature of the case, properly or effectively conduct their own cause in the court. THE QUALIFICATIONS OF THE ADVOCATE. What are the qualifications needed in the advocate or jury law- yer ? I speak here especially of natural qualifications, and those which are acquired in the study and practice of the art of advo- cacy, rather than of the preliminary and general learning in the law required by the profession. For the jury lawyer, especially, is not made by this general training. He is more a product of nature than of the schools. I do not, by any means, wish to dis- parage learning at the bar, but learning alone will not make good advocates, else they would be more common in the courts. They are not common; they are" rare; and the great advocates are at wide distances apart two or three at a time, perhaps, in England, or America; a half dozen in a century. Statesmen and great divines, and warriors even, are more common. In their scarcity, and possibly in some other respects, the great advocates more resemble the great actors, who hold the mimic stage, as they so often do the real. This is because there is a genius of advocacy, as there is a genius of acting and a genius of poetry. Talent and application will make a great statesman like Palmerston, and sometimes a great soldier like Wellington, but only genius, which is far more rare, will make a great advocate like Erskine or Choate. In the same way, the great poets are born, not made. They do not plod, and study, and make poetry at so many hours to the day, as business men work in their stores and offices, but they mount up to the heavens of imagination when the divine inspiration comes upon them. We cannot imagine Shakespeare writing Lear and Macbeth at regular days' works or Byron dashing off his sublime apostropne to the ocean, or his magnificent description of the mountain storm of Jura, as an allotted task before he should go to his dinner. It was the genius of poetry which took possession of these men and 12 178 MODERN JLRY TRIALS. transfigured their faces and lifted them up into the mountain of song, where they took little note of time, or hunger, or worldly things, until the lofty strain was finished. So Curran stood before an Irish jury, the very impersonation of the genius of advocacy, as, with flashing eye and quivering lips, he thrilled or melted them with thoughts of country or memories of home. No labor of pre- paration could produce such results; it was the flaming out of pure genius, the most unalloyed and perfect in his case, and in this respect, which has ever appeared at the bar. But I do not forget that there must be advocates who have not this divine gift, and I would by no means be understood to under- value learning and preparation in the advocate. To a certain extent, at least, these are indispensable. What I meant to say was, simply, that greatness in this calling must depend on the original endowment of nature; that a great advocate cannot be made by application, however severe; by learning, however profound. I know it is the fashion with us here, in this country, where we have no separate orders at the bar, to attempt all things in tbe profes- sion and to wander indiscriminately into all its fields. The same man does the work of a scrivener or conveyancer, gives law advice in his office like a chambers counsel, is a practitioner in chancery, a draughtsman, an attorney in the inception and preparation of his cases for trial, and finally the advocate before the jury. Every fair lawyer is supposed to be capable of all these things, and almost every lawyer attempts them all. Now, I think we cover too much ground here, and that this promiscuous employment tends to repress and destroy especial excellence in the profession. In the large cities, it is true, this state of things is somewhat modified, because there men can find enough to do in certain branches of the profession, for which they may be particularly adapted; but it is not so in the country, where the lawyer is expected to do every- thing, from the drawing of a deed or simple contract, to the con- ducting of a trial for murder. In a new country like ours, and with the practical difficulties in the way, it may not be possible for us, but I believe the English system is the best. The highest excellence at the bar cannot be attained, where the practitioner does a little of this and a little of that, and never enough in any one line to bring out all his powers. And the work of the jury lawyer is one that especially requires, besides natural adaptation, every day practice and experience. Besides there is something absurd and almost grotesque in its unfitness in a lawyer, whose voice ought never to be heard outside an English court of chancery, standing up before a jury, dry, unsympathetic, passionless, desti- TRIAL BY JURY 179 tute of every attribute of an orator, to plead for a man's liberty, or his life. I hold eloquence to be almost a sine qua non in advocacy. The true jury lawyer ought to be an eloquent man. I do not mean necessarily that he should be a great orator; but he ought to Eave some of the attributes of eloquence. He ought to be a man of quick sympathy, of impressible and electric temperament; a man to catch the inspiration of a cause and throw his feelings along with his logic into the jury box. Here, I think, is the true secret of the great advocates. It consists in that personal magnetism, that indescribable charm and sympathy of voice and manner which gives them control over the feelings of a jury, and when that is obtained the rest is comparatively easy. With this main qualifica- tion, which is largely a question of temperament, the advocate should have a quick perception, good judgment, self-control, know- ledge of human nature, and the power to handle facts. This mas- tery of the logic of facts is indeed one of the chief qualifications of the good advocate. It is what he needs to analyze and detect the weak points of his adversary's case and to arrange and mass his own evidence with the most effective and telling power upon the jury. Put this with that electric and sympathetic eloquence which I have described, and you have a vast power to let loose upon the jury in the final argument ; a power which perhaps too frequently sweeps them in its resistless might from the safe conclusions of reason, and sometimes, indeed, from the solid foundations of justice. ADVOCACY AND STATESMANSHIP COMPARED. In this brief outline of some of the leading qualifications of the jury advocate I have indicated an order of ability which is neces- sarily rare. But though rare, I do not consider it of the first order. In its intellectual part it is keen and quick, rather than deep and profound, in its moral aspect it partakes of that which lies upon the surface of human nature rather than that which goes down to the deeper things of the soul. It imparts and reflects the sympathy of \,he time or the occasion, instead of being always true to fixed and unchangeable moral principles. So I think it takes a higher order o/ ability to make a great philosopher or a great statesman than it does to make a great advocate. True, the themes of advocacy and statesmanship are very different. The advocate deals with princi- ples in the concrete; the statesman in the abstract. The advocate labors in the courts for the rights or interests of individual men in concerns which are brought directly home to them with intense and 180 MODERN JURY TRIALS. practical power. The statesman in the Parliament, or the Congress, deals with principles and generalizations which affect men in classes, or nations, and have to do with the welfare and prosperity of states and empires. Thus, the statesman's work is necessarily the higher and more important, and I think it requires the higher ability. This, I take it, would be the verdict of history. There have been some men who have divided almost equally the honors of statesmanship and the bar. Such were Brougham and Lyndhurst, in England; such, largely, our own Webster. But generally the two spheres have been separated, and I may say that, with respect to the especial depart- ment of jury advocacy, they have always been separated. Xo really great advocate has been at the same time a great statesman. This may seem a hazardous statement, but I think it is true. Daniel Webster was a great man before a jury, as he was certainly in the Senate. But he lacked a great many things to make him such an advocate as Rufus Choate, or even Ogden Hoffman. He was too slow, too ponderous, too unwieldy. There was not room enough for him in a trial before a jury. A man like Webster could not bring his vast intellectual armament to bear in such a trial. It does not require a whole army, with its artillery, infantry and cavalry, to capture an isolated point or break through a single place in the enemy's line. A division, or sometimes a brigade, or even a regi- ment, which can be handled quickly, is better for this purpose. And so, while Webster made a few jury arguments that were mas- terpieces, still he cannot be regarded as beginning to equal, in his forensic efforts, the splendor of his senatorial eloquence where the themes were greater and grander. And Webster comes as near uniting the two characters as any other name I can think of in our annals. Remember, I am speaking here of jury lawyers. As great constitutional lawyers, to expound and advocate great constitu- tional questions and the deep underlying principles of the law, which are allied to statesmanship, Webster and Pinckney and some other of our statesmen have greatly shone and stood in the front rank. But Erskine, and Choate, and Hoffman, and other advocates of scarcely less note, men who have ruled and swayed before the jury, have so lamentably failed in statesmanship that they fully prove my point. THE DUTY OP THE ADVOCATE THE OLD QUESTION OF THE ETHICS OI THE PBOFESSION. What shall I say of the duty of the advocate ? Surely I come here upon delicate and difficult ground; for I cannot, with my views TRIAL BY JURY. 181 of the subject, content myself with the general and sweeping answer that the advocate is to stand in the place of his client and do everything and anything in his name. True, he represents his client, and speaks for him in the courts, and this is well and neces- sary and wisely ordained in the fairness and justice of the law. But how may he represent his client ? What may he speak for him ? These are the questions that give us the difficulty. It is the old difficulty which has troubled the minds of some men ever since the days of Cicero and Quintilian, and even before; the difficulty which Dr. Johnson and the poet Southey have discussed on either side; settled now, perhaps, satisfactorily to the minds of a majority of lawyers and to most moralists, but to some not yet wholly removed. Possibly, nay undoubtedly, the question is aggravated by the almost universal fashion and practice of the bar. The theory of advocacy is one thing; the every day practice of it is often quite another thing. And yet, as a matter of theory, there have always been those inside of the profession who have maintained a doctrine on this subject which, to my mind, is offensive to good morals and especially degrading to advocacy. It is the doctrine advanced by so great a man as Lord Brougham, and practically and conspicuously illustrated by so great an advocate as Ruf us Choate the doctrine of the complete and utter identification of the lawyer with his client. An over partial biographer of our great American advocate, him- self a lawyer, writing with all the ardent zeal of private friendship, and unbounded admiration for his subject, has recorded of him that "his client was his God;" that "his client's interest was his relig- ion;" that "he never inquired whether his client was right or wrong, but he went for victory to the last beat of the pulse and the last roll of the drum." Perhaps this is as offensive a statement of this doctrine as we can find anywhere, connected, as it is in this instance, with the debasement of almost superhuman and angelic powers, but it is elsewhere enlarged and elaborated by Dr. Johnson and other writers into a system of plausible and fallacious refine- ments of judicial casuistry and Jesuitism. I cannot descend here to details, but I must protest with all my might against this specious but demoralizing view of the duty of the advocate. I contend for a higher, broader, nobler rule. I know that so great an authority as Cicero has said that the first duty of the advocate, is to assist him who most needs assistance; but with all deference to a name so illustrious, I hold that a better rule would be to assist him who most deserves assistance. The theory of a trial by jury is not to clear guilty men who are in 182 MODERN JURY TRIALS. trouble. It is rather to afford an opportunity for the conviction of guilty men and the vindication of innocent men unjustly charged with crime. When guilt is known or confessed there is no need of a trial in the real and full meaning of the term. After that there remains but the just order and the decent formality of the law. A trial is an inquiry, an endeavor after the truth or fact of guilt or innocence. If the client be guilty, then he does not need, in the contemplation of the law, the assistance of the advocate, for the fact of his guilt is the end of all inquiry on the subject, and the end of all interest which the law takes in his behalf. For the rest, it will only demand that the fact of guilt be judicially ascertained, and in assisting to do this the advocate serves the law rather than the criminal. But here comes the casuists and say: How can it be known that he is guilty until he is proved so ? It cannot be judicially, technically known, it is true, but it can be known to the advocate in the broader way and in a moral and popular sense just as other facts are known. It may be known from the client himself; it may be known from overwhelming moral evidence surrounding the case. This is the state of facts I am supposing, and this is the reason why I say that it is not what the client needs to enable him to escape a just penalty which he has incurred, but what he deserves as a man whose guilt is still in doubt, at least, which should command the zeal and the service of the advocate. I grant that the lawyer should not prejudge his client's cause; that he should presume everything, indeed, in his favor. But after all that is done it will frequently happen that the advocate will be compelled to believe his client guilty. It is specious nonsense to say that we can never know that a man is guilty till a verdict of a jury has pronounced him so. We can be satisfied of it sometimes just as well before as after the verdict. We may know it through the same facts which compel the verdict; we may know it better still by the private confession of the accused. Shall the lawyer, under these circum- stances, exert himself to the uttermost, using superior powers and skill to obtain a verdict of acquittal for his client, the same as though he knew him to be innocent ? Is that a just and proper rule ? Is that the true idea of the ethics of advocacy ? I protest against such a doctrine as a wrong to society and a slander upon the law. I insist that the first duty of the lawyer is to society and the law, and that his duty to his client is always subordinate to this higher duty. All this is involved in his law- yer's oath. He is first of all sworn to uphold the constitution of the State. Upon this rests the whole civil fabric of society. Next TRIAL BY JURY. 183 he is to be true to the court. The court represents and stands for the sanctity and majesty of the law itself. It is the interpreter and vindicator of the law. Last he is to be true to his client. But he cannot be true to his client in any just sense while he is false to society and the law. That is not the kind of truth he is to keep with his client. His oath pre-supposes no conflict between his client's interest and the interests of the State. He is not sworn, therefore, to help a guilty man whom he knows to be guilty, to escape at the expense of law and justice. If he does this he becomes an enemy to society and a conspirator against the law; for society cannot be held together without the punishment of the guilty, and the law is powerless and dishonored if it cannot enforce justice. Away, then, with the specious plea, the dangerous fallacy, that the highest duty of the lawyer is to stand between his client and the State and protect him always, right or wrong. No doc- trine, in my judgment, could be more disloyal to the State, or degrading to the profession. Too much, far too much is this doc- trine acted upon at the bar. The indiscriminate and over zealous defense of criminals without thought or care as to their guilt; the unreasonable theories; the unscrupulous tactics; the brow-beating of witnesses; the reckless assertions and the bold affectations of truth and innocence these are the things which have brought criminal advocacy into disrepute with the people; which have kept so many able, self-respecting lawyers from this department of practice, and made the very term, criminal lawyer, signify want of character and honor; have almost made, indeed, the adjective stand for a designation of the kind of lawyer rather than the kind of practice. No, the highest public duty is always to the State, and nothing must conflict with that. The lawyer should never forget that he is a citizen. He should never lend himself or hire himself to any service which will harm or hurt society. His noble profession does not require him to do this. It does not demand that he be the unscrupulous aider and helper of ruffians and law breakers, nor a mere unthinking human machine of advocacy. It has other and higher commands for him; other and nobler work for him to do. Let me not be misunderstood. Every man who prosecutes or defends a civil cause in a court of justice is entitled to the lawyer's help to make a fair preponderance in his favor; every man who is accused of crime must have a fair and impartial trial with the assistance of counsel, and must be acquitted if not proved guilty beyond a reasonable doubt. While, then, the lawyer stands for him in either case, he does it as an officer of the law and of the 184 MODERN JURY TRIALS. court, and under a solemn oath to do his duty to both. If his client is in the wrong and he knows it, I think it is his duty to withdraw from the case, or at most to see only that the forms of the law are com- plied with, that only justice is done and that no dangerous prece- dent is set. If next, it be greatly doubtful to him whether his client be in the right, even then, I say, give him the benefit of the doubt and struggle manfully, but guardedly and within the bounds of a due moderation, for his cause. So much is due to the client on the one hand and to the law on the other. But if now the advo- cate knows, or fully believes, his client to be in the right; to be, for instance, an innocent man unjustly accused of a great and heinous crime, then comes the supreme duty, the highest which man can perform for man. Then let learning and eloquence, and tact and energy, and every power and attribute be put under contribution for the noble work. Stand up bravely, then, if need be, against the menace of power or the frowns of public opinion; let no mobs terrify, no odds appal, no opposition daunt; yield not one inch of ground till driven from it; struggle with tireless and sleepless energy to save a fellow man from a fate so unspeakably awful. This is true advocacy in its noblest form, almost God-like in its character and the crowning glory of the bar. Such advocacy has been seen in the courts, and in many notable instances its courage has been as fine and its chivalry as superb as were ever witnessed on any battle field. ZHVEOVKMBNTS AND MODIFICATIOITS NEEDED IN THB JTTBY SYSTEM. But with all its faults of advocacy, and with the many impedi- ments to its fair and just working, the jury system is the best that can be devised, and should be retained. The fine balance of its sev- eral parts, necessary to its complete and harmonious movement, is frequently disturbed in practice, and it sometimes seems to fail of its true ends. Like all human institutions, it is not perfect. It may, undoubtedly, be improved, and I think it ought to be improved in some important respects. In the first place I think it should be improved by changing, in civil cases, the rule requiring, unanimity. The frequent disagree- ment of juries is one of the just complaints against the system, and these are the necessary fruits of this rule. I cannot here go into a discussion of this question, which has already received the atten- tion of law-writers and law-reformers, but it has always seemed to me that the weight of reason and argument was on the side of a modification of the old rule. The question should be looked at in its practical bearings. Whatever the origin of the rule whether TRIAL BY JURY. 185 it came from the number of the Saxon compurgators, or from an old requirement of the agreement of twelve, when the whole num- ber was greater, or from the wish of the law to protect each indi- vidual member of a jury from responsibility by requiring unanimity before giving any effect to their action, it should give way to a bet- ter administration of justice. I believe this modification is required and demanded by strong practical reasons and considerations, which are felt every day in the courts. Certainly the requirements of unanimity is somewhat inconsistent with the general rule which prevails in a republican form of government, where the gravest public questions are settled by a bare majority. It would seem, on principle, that if a question which vitally affects the welfare and happiness of a whole people may be settled by the preponderance of a single vote in millions, that a little petty matter of private dispute, between two neighbors, ought to be settled by a two-thirds vote of a jury for one or the other. And no man can doubt that this would directly facilitate the disposition of causes in the courts. I would not hesitate, then, to make the reform. It is not suffi- cient reason to me for retaining a bad rule to say that it has pre- vailed for many hundred years. Because it is old, does not neces- sarily show that it is right. But while I would make this change in civil cases, and permit a two-thirds vote to carry a verdict, I would not disturb the rule in criminal cases, for there the accused ought to have the benefit of the rule as it stands. The humanity of the law and the reason for greater caution and certainty all require that he should only be found guilty on the unanimous judg- ment of the whole twelve. Again, another disturbance of the just balance and working of the system is frequently seen in the wresting of the trial by jury from its original purpose as an investigation of facts and turning it into a proceeding where the effort seems to be how not to find the facts. The utility of this form of trial lies in its adaptation to find the merits of a case by a direct and clear inquiry for that purpose. It is not a place to try questions of law, like a court of last resort, and it should, as far as possible, be kept clear of all legal technicali- ties and discussions. Our jury trials are frequently burdened with too much law. I know it is often the policy and tactics of counsel for defense to obscure the real issues of fact by raising false issues of law; and many times, too, the effort is successfully made to draw the mind of a jury away from the main and decisive facts in a case into labyrinths of fine-drawn speculations and remote collateral 186 MODERN JURY TRIALS. questions. Oar courts should draw the line more tightly and keep closer to the real issues. It is these long, wearisome, verbose trials, burdened down with remote collateral issues and hair-splitting discussions of legal tech- nicalities, and finally closed by long, jumbled and confusing charges from the court, that produce almost inevitable disagreement of juries. The native common sense and discernment of a jury droop and die in such an atmosphere. From such a trial the average juror comes forth in a bewildered and half -demented condition almost ready to be sent to a mad-house. It is useless to expect just and intelligent verdicts under such circumstances. One of the chief things which needs correcting in this matter is the judge's charge. I think our recent statutory fashion of giving charges in separate and detached legal propositions, first on one side and then on the other, is a bad one in practice, and tends greatly to confu- sion. Our judges ought to be able to charge on their own motion, in language so clear and simple that the most ordinary jury could understand. The charge of the court should be clear and consistent with itself, a logical whole, a legal setting for the facts of the case, or the outlining of its legal boundaries, within which the jury are to perform their duty. It should generally be brief, simple and gen- eral; it should not descend too much to particulars, and above all it should leave the jury untrammeled as far as possible in their own peculiar field and province. One further improvement in the jury system is needed to bring it into complete accord with the spirit and progress of our age. I refer to a modification of the old rule of challenge, so as to meet a difficulty which is frequently found in securing an intelligent jury in cases of great public interest or notoriety. The want of a proper readjustment of the rule excluding jurors on the ground of opinion to the actual condition of our newspaper-reading people has, of late, in many quarters become a real scandal upon the law and a great hindrance to its just administration. A general reform is needed in this respect throughout the country. Here, in Michigan, however, with our remedial statute upon the subject, supplement- ing a wise and liberal construction of the common law rule by our Supreme Court, we have little left to be desired. EBSKUTB AND CHOATK. Into this arena of the trial by jury have stepped some of the brightest intellects of the world. In the brilliant constellation of advocates who, in the last hundred years, in England and America, have reflected the light and glory of their genius upon the forensic TRIAL BY JURY. 187 stage, I would place Erskine and Choate at the head. I do not for- get Brougham, and Denman and O'Connell, and the marvelous Curran on the other side of the ocean, nor Pinckney and Hoffman and Prentiss and Paul Brown and Brady on this side. But all these, and many more able and gifted men are fairly distanced by these two great and incomparable advocates, who must stand in their respective countries as the bright, particular stars of the jury forum. But although Erskine and Choate were almost equally great as jury lawyers, their lives and careers present a series of sharp and striking contrasts. Erskine, the scion of a noble Scotch family, with imperfect early education, and after years wasted in a most opposite and dissimilar pursuit, took up the law when weary and disgusted with the life of an army officer in time of peace. Choate, a New England farmer's son, came early to the bar, after full pre- paration and worthily crowned with academic and collegiate hon- ors. Erskine never became a scholar, and was never distinguished for learning in the law or wide reading of literature. Choate, in all his subsequent career, was a laborious student and undoubtedly ranked higher in legal and general learning than any other advo- cate of his time. In the work which these men did at the bar the same contrast is presented. It happened to Erskine to be employed in a remarkable succession of great state trials in which he became the advocate of the rights and liberty of the citizen against public despotism, and in giving the death blow to the doctrine of con- structive treason and vindicating the right of free speech and a free press, he performed the noblest service to the law and the free constitution of the empire and won unfading and immortal forensic honors. Choate, on the contrary, was never privileged to argue a single case of great public political importance, but was compelled to use his vast and varied powers in questions of mere private interest and dispute a circumstance which, in his last days, he recalled with pathetic regret. So in the splendid and unequaled gifts which each brought to the bar they were still dissimilar. Erskine, who commanded the higher power and the better art, spoke with singularly clear and felicitous language, in sentences short and rich with beauty and strong with logic, and not unworthy of the great models of English speech which he found and studied in Shakespeare, Milton and Burke. Choate, whose learning was deeper and whose vocabu- lary was wider and ampler, spoke in sentences of remarkable length and resounding sweep and rhythm, and astonished all by the amaz- ing afflnence and gorgeousness of his diction. Both were men of 188 MODERN JURY TRIALS. high imagination, but while Choate was more poetical and subtle in his fancy, Erskine was more vivid, intense and practical. Choate dazzled and overwhelmed a jury; Erskine swept and mas- tered them. Choate more resembled Cicero, who was a rhetorician as well as an orator, while Erskine was more like Demosthenes, who was the greater master of true eloquence. In their personal appearance and outward manner, also, these great advocates were widely different. Erskine was fresh and buoyant, full of vivacity and of fine and engaging presence ; Choate was angular and almost ungainly of form, of pale and hag- gard countenance, and with only the divine genius looking out from his deep and burning eyes to distinguish him from an ordi- nary man. Possibly this may account for the fact that Erskine was full of personal vanity, while Choate was singularly modest and unenvious. But in the midst of these many contrasts, one great and striking parallel stands out in their public careers. Each left the bar tor a brief season for service in a legislative assembly, the one in the British House of Commons, and the other in the Senate of the American Congress. Each wearied and failed in the new and uncongenial place; and stranger coincidence still each met and quailed before a great parliamentary leader Erskine before the imperious orator and statesman, William Pitt, son of the great commoner of England, and Choate before another proud and arro- gant parliamentary chieftain, Henry Clay, the great commoner of America. Returning now to the bar and the courts, after their legislative failures, the old contrast stands out again in their lives, even to the very close. Erskine went upon the Chancellor's woolsack, for a brief period, and then retired at fifty-seven from the bar and the courts. Choate returned from the senate to the bar while yet in his early prime, and gave thereafter his best powers and most bril- liant efforts to his profession. Erskine died at seventy-three, after a long, sad evening to his life, in which he missed the old excite- ment of the courts and found no compensation in the love of books, that sweet solace of cultivated old age. Choate broke down suddenly at sixty, while yet in full practice, his nerves shattered by the long contentions of the forum; dying prematurely, and missing what he had so longed to enjoy a peaceful and restful evening to his stormy and laborious life, when he could forget the fiery encounters of the bar in the sweet studies and unfailing delights of the books he loved so well. And so in death the great advocates present their last sad contrast, as each missed the closing TRIAL BY JURY. 189 felicity of his life the one in living too long, the other in dying too soon. CONCLUSION. Thus all too briefly and imperfectly have I sketched this great institution of the trial by jury, and, as I turn away from the theme I deeply realize how much is left unsaid. The greatness of the sub- ject has embarrassed and oppressed me. In considering it, our minds run back through many stormy scenes of English history, through many great political changes and revolutions, to the early and memorable days when the foundations of constitutional free- dom were laid in England by the first successors of the conqueror. Then and there was begun to be builded the grand and majestic edi- fice of the common law, and into its solid masonry was wrought the trial by jury. There let it remain so long as the magnificent struc- ture shall stand. It has been a glory and a boon to England ; it is and will be a blessing and a glory to us. No man can safely predict what our national future will be. The events of our recent history have dis- turbed that easy and boasted confidence in our institutions and our future that once prevailed. I invoke no spectres to rise in our national pathway; I cast no horoscope of coming ills, but whatever the future, whether cloudless and serene or stormy and tempestu- ous, it will be well to hold on to the trial by jury. We may never have tyrants, we may never have Caesars, but if we should have them they will seek to accomplish the downfall of free government, not by directly overriding the constitution, but by using the forms of law to strangle and subvert its spirit. No central despotism, no rule of monied or political monopolies can successfully control for tyrannical or sordid purposes an institution which derives its life and power from the great, honest masses of the people. A nd here will be our safety. For the jury system is the handmaid of freedom. It catches and takes on the spirit of liberty, and grows and expands with the progress of constitutional government. In England, in the seven- teenth century, under the tyranny of the Stuarts, a jury at the instance of a cowardly and despotic king, sent the noble Russell and the brave Sidney to the block for constructive treason. A hundred years later, an English jury acquitted Lord Gordon, and Hardy, and Home Tooke and Thelwell, on the same charge, although pressed by the whole power of king and government; and a little later still, not all the influence of the ministry, though aided by the savage energy of a chief justice of England, could wring 190 MODERN JURY TRIALS. from an honest and fearless English jury, an unjust verdict against a poor and humble private citizen, who, all unaided by counsel, con- ducted his own defense. No; civil liberty cannot dispense with any of her armaments. She needs them all to battle with tyranny and oppression. Trial by jury is one of the chiefest of these. The noble panegyric which Blackstone pronounced upon it in his immortal commentaries is well deserved, and if it be true, as he suggests, that possibly Rome, Sparta and Carthage fell because they did not know it, let not England and America fall because they threw it away. PIERCE WILL CASE. Speech of Hon. CHA& 8. MAY, at Ealamazoo, February, 1876. One of the most important, as well as one of the most interest- ing, civil cases ever tried in the State of Michigan, was the Pierce Will Case of Kalamazoo county. The large amount of money con- tested for, the great number of witnesses examined, and the pecu- liar and semi-tragic nature of the facts, all combined to awake in the public mind more than the interest usually created by trials in court. The case was tried twice. The first trial occurred in June, 1875 and resulted in a disagreement of the jury eight favoring the contestants and four sustaining the will. The second trial began February 12th, and concluded March 1st, 1876, with a verdict for the contestants. There were one hundred and fifty witnesses sworn in the case, being fifty more than were sworn in the cele- brated Vanderpool trial, and thirty-seven more than in the case of Tllton v. Beecher. The jury were out twenty-six hours, and what is worthy of note, rendered their verdict upon the twenty-third anniversary of the day upon which the first wife was turned away. If there is a scene to move and touch the tender heart-chords of a jury more than the destruction of a pioneer's home the putting away of a tried and faithful wife and mother in her old age, the " over the hill to the poor house," more intensified than in this trial, I have not seen it or read of it. The masterly arrangement of these exciting scenes is in itself eloquent. The ingenuity of PIERCE WILL CASE. 191 counsel is in the simplicity of his statements; holding the clear mirror up to nature, which reflects the sad condition of a home in ruins. " When Mr. Buck closed, a dense crowd had filled the court room, all anxious to hear Hon. Chas. S. May, who was to make the main argument for the contestants, and who, it was expected, would be more eloquent than ever before in a jury case. " It was a scene long to be remembered in the history of the court. In the audience were large numbers of ladies, and when Mr. May rose at the close of the short intermission, a silence prevaded the room, which was the forerunner of the rapt attention he received during the four hours which he spoke. " He was pale, anxious and earnest. Each listener leaned forward to catch his opening sentences. He began slowly and calmly. But soon rousing with his subject he gathered the facts into logical order and, clothing them in eloquent words, wove them into a powerful argument." Personally Mr. May is an exceedingly attractive speaker nearly forty-five years old and looking much younger; of medium size and height, keen eyes, dark brown hair, light mustache, deep, strong, penetrating voice. He speaks rapidly and fluently, warms with his subject to a bright glow of oratory, with a peculiar fire of earnest and impressive delivery that is singularly effective with juries. To hear him speaking in any building draws one nearer and holds one's attention with the keenest interest throughout. He has long been a leading advocate in Michigan. He has served as lieuten- ant-governor, has received the vote of his party for United States senator, and is very prominent as a political orator, whose speeches attract unusual interest. The argument of Mr. May is of such a graphic and, at times, thrilling character, as well as tersely historical, that it furnishes all the facts essential to a full comprehension of the issue determined at the trial. His positions were believed and followed by the jury. Mr. May said: GENTLEMEN OF THE JTJBT I cannot tell you how deeply I feel the responsibility which now devolves upon me. As I approach the argument of this important cause and think of the interests confided to me, and how much may possibly depend upon what I may say to you, I am almost overwhelmed with the sense of 192 MODERN JURY TRIAL& responsibility. The stake which these contestants have in this issue is a deep and vital one, and as I stand here now to speak for them, my mind goes back over this testimony to those days long ago, when in summer heat and winter cold they toiled in that eai ly pioneer home, in the midst of privations and discouragements, to lay the foundation of this ample fortune which is now in contest. Gentlemen, there has never been in the whole history of this court so important a civil cause tried before a jury of this county. This is true, whether we consider the amount at issue, or the intrin- sic character of the facts. For this is not only a case involving nearly a hundred thousand dollars in money, but it is one, also, of deep and even tragic interest. It id, indeed, a powerful drama from real life. Put upon any stage, these facts would draw tears from human eyes and stir all human hearts to indignation. Told anywhere under the circuit of the sun to civilized men, they would touch the tenderest chords of human sympathy, and even savage breasts would be moved by them. Gentlemen, you have a high duty to perform. Not often does such a duty devolve upon a jury. You may all live long lives as God grant you may and be honored and trusted by your fellow citizens, as some of you already have been, but you will never meet a greater responsibility than this. It is my duty now to speak for these contestants; it is yours to listen and weigh what I may say. I have often thought that this great feature in the administration of justice was not rightly understood by juries and the public. It has seemed to me, sometimes, that juries and the people at large have regarded the arguments of counsel as an infliction which th-i law rather permitted than sanctioned, and have therefore turned deaf ears to the bar. But this is not right. My standing before you is no idle, useless ceremony; it is one of the solemn institu- tions of the law, and as I speak upon my responsibility as an advo- cate, it is as much your duty to listen to me and to the argument which I shall make, as it is that you should listen to the charge of bis honor, when he shall come to deliver it. You have been patient, attentive listeners to all this testimony and all these pro- ceedings for nearly three weeks, and I know that I shall have your candid, patient, careful hearing. I have invoked such a hearing from you, gentlemen, for I wish to appeal to-day to your reasons, to your judgments, to your under- standings. I wish to make an argument to you an argument founded upon the facts, upon the law, upon logic. I wish to indulge in no tricks of speech. The warning of the counsel was entirely unnecessary. I shall not be betrayed into leaving the PIERCE WILL CASE. 193 solid ground of my argument to gather any useless flowers of rhetoric, or to indulge in any unwarranted appeals to your sympathy. But it will not be the misfortune of my clients in this cause, if I shall, build a highway of reason and logic, over which the sympathies which I know fill all your hearts may be carried to a verdict for these contestants. Happy is that cause where no vio- lence needs be done to the better feelings of our nature, but where the lines of sympathy run parallel with those of reason and of duty. THE MAIN QUESTION. Gentlemen, the main question which we have here to try and decide the question which involves all the others, is this : Is this paper which has been offered in evidence by the proponents the last will and testament of Isaac Pierce f In other words, is this a valid will ? Now, there are two broad grounds on which we attack the valid- ity of this will. Though Isaac Pierce signed this paper with his own hand, though it has all legal and due formality, we say it is not his will in the law if, at the time of its pretended execution, he was either not in his right mind, or was under the undue influence of another. These grounds are entirely independent of each other either is sufficient to set aside the will, and on the question of mental capacity the court will instruct you that the burden of proof is upon the proponents who offer this will. * * * [A strong statement of mental unsoundness, sickness, old age and accidents, detailed and examined. The story of an early pioneer and his struggle with the great battle in the wilderness, which is familiar to all early settlers in any State. Counsel argues at length on the theory of mental weakness from long habits of intoxication; of being lifted from his (Pierce's) wagon in a state of unconscious stupor; dwells upon the demented condition of the mind from such causes; shows his anger and remorse, his exclamations of pain and long suffering, and comes to the consider- ation of undue influence and incapacity to make a valid will.] And now I come, gentlemen, to discuss more clearly the rela- tions of this woman, Emeline, to these facts. She is the woman in the case; and not the first one, either, who has figured in cases like this and been accused of exercising undue influence over men. Such cases and instances are very common in the courts. They are, indeed, of longer standing than the courts; they are as old as 13 194 MODERN JURY TRIALa human nature itself ; for I do not forget that, according to the sacred legend, it was the first woman who unduly influenced the first man to eat the forbidden fruit. I am to show you here the powerful influence of an artful and designing woman over a man of rough nature and strong passions a woman twenty years younger than the man, and first securing her influence over him through the unlawful gratification of his strong and unregulated passions. HISTOBIC INSTANCES THE MISTRESSES OP KINGS. Is there any inherent improbability in such a case ? Why, gen- tlemen, history is full of instances like this instances where great monarchs and rulers of men have fallen, through the same source of human weakness, under the influence and control of the other sex. Who has not heard of the mistresses of kings and the part they have played in the history of the world? Louis XFV, of France, was called " The Grand Monarch,"' and " Louis the Great," so splendid was his long reign and so powerful was he among the sovereigns of the world ; and yet, though this man was an absolute monarch over France and dictated law to all Europe, sending out his great marshals and armies to victorious fields of conquest, and ruling in his cabinet with arbitrary and autocratic will, he himself was conquered by the charms and blandishments of a solitary woman a woman without royal blood, a butcher's daughter, who ever after, until the day of his death, exercised supreme influence over him, dictating war and peace even compelling him in the interest of her religious fanaticism to revoke that royal edict of Nantes, and let slip the dogs of religious persecution, deluging a whole region in innocent blood. I could give you many more signal instances of this kind. The very next successor of this great king of whom I have spoken, the next Louis in that long line, had his Pompadour, as the other his Maintenon another woman from humble life, who ruled the ruler of the nation with an artful and unbending will. And there was the English Charles n, with his famous mistress, and in our recent times the wayward and romantic Lola Montez, the dancing girl who came to rule the king in a European court. Shakespeare, who has illustrated all human nature and passion, has drawn a powerful picture of woman's influence in his Lady Macbeth, who urging her guilty but hesitating lord to the terrible deed of blood, says to him "Only look up clear; To alter faror ever is to fear; LeaTe all the rest to me." PIERCE WILL CASE. 196 Why, gentlemen, these counsel say to you, that it is impossible that the wife of this man could have had this influence over him that Isaac Pierce was a self-willed, strong man. A strong man ! Well, was he stronger than Sampson, who could tear down the gates of a city ? And yet Sampson, gentlemen, was weak enough when his head reposed in the lap of his Delilah. So it was with Isaac Pierce. Rough and strong as he was by nature, he came at last like Sampson, through the same channel of influence, to obey the will of an artful and designing woman. ISAAC PIERCE AND HIS FAMILY IN 1852. Now, gentlemen, let us turn to this testimony and see when and how this influence began. Let me take your minds back to 1852, and show you Isaac Pierce there with his family on the old home- stead, at Climax. Married to his first wife in the State of New York, in 1824, he had removed with his young family to Michigan ten years later, and had settled down upon his first purchase of land in the beautiful region where he continued to live during all this history, for nearly forty years, until the day of his death. At this time 1852 he had with him, besides his wife, "Aunt Katy," as she was afterwards called, six children, ranging in years from sixteen up to twenty-seven three boys and three girls. He was now about fifty years of age, and the possessor of eight hundred and fourteen acres of land eight hundred and sixty-nine acres being all he owned at the day of his death. The story of this family had been like the story of other pioneer families in this region, only a little rougher and harder. They began with little and they worked hard, boys and girls alike the daughters and the mother frequently working in the fields with the men, and the testimony many times shows us "Aunt Katy" bringing with her own hands the family wood from the field to the house. "We all worked hard," say these children on the stand, and so testify, also, all the witnesses who knew them in those early days. Isaac Pierce at this time, though a rough, aus- tere man, seems not to have been an unkind father, and he was well disposed towards his family. Drinking had not got to be so settled a habit with him and he worked hard with the rest. He had overcome all the difficulties of a new country; had brought his family safe through all the trials and dangers of that new home; his judgment had been good, his plans had worked well, and he was a man now in easy circumstances and comparatively rich among so many of his less prosperous neighbors. 196 MODERN JURY TRIALS. THE BEGINNING OF TROUBLE. But a great trouble was about to fall upon that quiet and peace- ful family. In the late summer of that same year 1852, Isaao Pierce met this woman, then Mrs. Emeline Hadley and an inter- esting young widow, in her mourning weeds for her husband, who had suddenly died in the month of July, in the town of Penfield, in the county of Calhoun, which was their home. She met Pierce at Battle Creek it seems she knew him, at least by reputation, before and applied to him to become administrator of her hus- band's estate. He seems to have been struck with her person and her request, and at once undertook the duty. And then com- menced his relations and intercourse with her, destined to change the whole course and current of his after life. He began soon to make visits to Penfield, which were frequently repeated, and we catch a glimpse of him defending her law suit at Battle Creek. SIGNING THE SEPARATION PAPERS. Pierce is soon infatuated, and nothing can now stand in the way of his dreadful purpose. All his ungovernable passions are roused, and he turns fiercely upon the wife of his youth as an obstacle in the way of his new and unholy desires. You remember that in the solemn night time, the youngest child, Lucinda, had heard her father's voice, in high and terrible words, demanding that her mother should consent to a separation, and leave her home and children forever. At last by the most terrible threats and com- mands by the use of language too shocking and awful for me to repeat, he compels her to come to Kalamazoo, where this same George Thomas Clark, the adviser and tool of Pierce, had drawn up the separation papers for her to sign. You remember these papers, gentlemen, with their false and lying preamble, " Whereas, unhappy difficulties have arisen between the said Isaac and his wife Catharine." What difficulty had she made ? The wretched wife could not at first sign the papers. She took the pen, officiously put into her hand by Clark, and then burst into tears, saying she could not do it; "she could not sign away her home and children." The superserviceable Clark is ready to urge her; to tell her of his brother's case in England, and how that was managed. Pierce stands by, over-awing her by his pres- ence and by the stern and unbending purpose which she sees writ- ten in his face. At length she yields, takes the pen, signs her name and turns weeping and sorrowfully away. Then, with a heavy PIERCE WILL CASE. 197 and broken heart, she returns for a brief season to the home where she had worked so long and endured so much for her husband and her children. It was in the month of November that Pierce brought Mrs. Had- ley into his family at Climax. Up to this time, these children tell you, Isaac Pierce had lived peaceably and pleasantly enough with his wife. But a terrible domestic cloud had now begun to gather. Quarrels and high words began to be heard by the affrighted children between the father and mother. Pierce leaves his wife's bed; he makes no conversation with her; he does not treat her any longer as his wife, but installs Mrs. Hadley at the head of the table, and is even found in the night time sharing her room and bed. Aunt Katy passes around uncomplaining, but sad, and frequently in tears. THE CULMINATION OP THE TRAGEDY. Finally the awful climax of her troubles comes the day of fate and doom to this poor woman, when she is sent away forever from her home; taken away by the orders of this infatuated and infuri- ated man, who had once solemnly sworn at the altar to love and cherish her; taken with a few cheap and humble articles of house- hold furniture and sent, by a back way, over the hill to the little log house in the hollow which was to be her future abode; taken while protesting and crying out in the agony of her soul that she could not go that she could not thus leave the home she had worked so hard to make, and the children she had nourished and loved. How can I picture to you that scene of domestic desolation and ruin that terrible scene of a wife's dethronement and banishment ? Gentlemen, I have heard the great actors and tragedians of this generation who tread the mimic stage and thrill and melt excited thousands with their delineations of human sorrow and passion, but I have heard from the lips of Lucinda Milliman, on that wit- ness stand, the story of a real tragedy in humble life, more pathetic and powerful than any imagined grief of kings or queens, or any catastrophe whatever of human greatness. That agonized wife and mother in the midst of her weeping children; her tearful protestations and pleadings the demoniac husband and father standing by, lost now to all feelings of gratitude and pity, and hurrying up the cruel preparations for her departure oh ! gentle- men, it was a spectacle to make the blessed angels weep ! Well might the wretched mother have cried out in the homely but pathetic language of Michigan's own poet : 198 MODERN JURY TRIALS. " Orer the hill to the poor-house my children dear, good-by ; Many a night I've watched you when only God was nigh ; And God will judge between us; but I shall ever pray That you may never suffer the half of what I do to-day." Gentlemen, a scene like this must melt and move all human hearts. It brings to our minds that other scene enacted upon a royal stage, between crowned heads, over which the world has hung and wept for years, where a great Emperor put away the wife of his youth the wife who had loved him and helped to place him on his throne. That separation and banishment have come to be one of the touching stories and tragedies of history; but human nature is the same in farm house and palace, and this tragedy in humble life appeals as spontaneously and powerfully to the deepest and tenderest sympathies of all our hearts. How overmastering must have been the influence to drive this man to such a crime; how cool and calculating the disposition of this woman, Emeline, who could look calmly on and witness it ! I turn to you now and ask you this all-important question : If this woman who sits here could make Isaac Pierce do such a deed as this in the day of his strength and prime, could she not influence him in the day of his weakness and decline to make this will ? Gentlemen, this was a horrid piece of business blasting and withering to the good name of the living and the dead alike. And yet I have heard here a wretched plea in defense of it a plea put forth by this guilty party to it the plea that the banished wife was not neat and tidy in the management of her household ! God of mercy ! what a defense is this ! Was it not enough for this poor old woman to suffer, to be exiled and driven from her home, to be crushed and outraged in her deepest affections, to have her life blasted by this great grief ? Was not her cup already full ? Did it need that this insult should be added to all the rest before she dies? And what do you think, gentleman, of that disposition which prompted such a plea as this ? " Aunt Katy worked hard " " she labored faithfully for her husband and children " " she backed the wood up to the house " " she did the best she could." That is what the witnesses say. "She did as well as she could," reluctantly says one of the wit- nesses who comes here to heap this insult upon her old, gray head. Who could do better than that ? And was Isaac Pierce, from this testimony, the man to complain of untidiness in his wife ? Gentle- men, I dismiss this wretched plea without further words. The proponents are welcome to all they have made by it. Gentlemen, the influence of this woman over Isaac Pierce was PIERCE WILL CASE. 199 never broken during the twenty years she lived with him. Once having secured her control over him he was submissive and obedi- ent to her slightest wish. * * * He recites the testimony at great length, reading from notes and repeating from memory, giving a graphic analysis of character, appearance, and probability of their correctness of detail, and pro- ceeds: Now, gentlemen, I think that you will agree with me that here is a very considerable mass of testimony tending to show the pos- session of a strong and powerful influence by this woman over this man. The question naturally arises now: Did she exert this influ- ence upon him in order to obtain this will ? In the first place, I ask you, gentlemen, what would be natural and probable in such a case ? Consider her situation and that of her children by Pierce. Consider the grave legal questions and doubts which might arise in regard to her true relations to him and to his property; to the legality of her marriage; to the legiti- macy of her children. Under such circumstances what would be natural for her to do ? Would she not desire, above all other things, that Pierce should make his will and thus settle these grave questions and doubts forever, and confine the property to her and her children ? Remember, the other wife was still living, and her children, these contestants, were all about her. Why, gentlemen, human nature itself answers these questions. This woman could not have been true to her own interest and to the interests of her children, if she had not exerted her uttermost power and influence to obtain a will such as she needed for her pro- tection. Do you believe her when she swears that she never spoke to Pierce in her life about a will, and did not even know what he was coming to Kalamazoo for when the will was made ? Gentlemen, on this subject, it is a most significant fact that this will is made in the interest of this woman and her children, and that, too, in the very face of all these declarations and expressions by Isaac Pierce of a contrary intention. What do you suppose induced him thus to forget and deny his own words, to forget his duty as a man and a father, and to disinherit his own blood ? What power drove from his mind the remembrance of these more than orphaned children of his unfortunate daughter, Mrs. Parish ? Ah, gentlemen, this is not such a will as he told Dr. Babcock, on what he thought was his death-bed, he wanted to make. 200 MODERN JURY TRIALS. "TO KXKP PEACE nr THE FAMILY." No, gentlemen, this will was wrung from Isaac Pierce in his old age, in his weakness, in his sickness, in his intoxication, by the ceaseless and persistent importunity and authority of this woman. Against her oath, denying all this, saying she never spoke a word to him on the subject, I put the oft repeated declarations of Isaac Pierce himself ; I call him from the grave to confront and impeach her. You will believe him when he tells you that this will was not his, but hers; that it was made to please her and get rid of her ceaseless importunity "to keep peace in the family." How many times did this old man use that expression, as he complained, in the bitterness and sorrow of his heart, of his domes- tic troubles ? Besides the many other things which he had to do " to keep peace in the family,** was the making of this very wilL Your have seen how, for this purpose of keeping peace, as he him- self said, he wanted his son Loren to pay him the thousand dollars for the land, telling him he would pay it back to him; how, accord- ing to the testimony of the venerable Moses Hodgman, he exacted the mortgage from Milliman and his daughter, privately assuring them that they would never need to pay it; how he took the 'note from his other son-in-law, Clark, telling him it did not need to be stamped, as he only wished it to satisfy his wife. In all these instances he used this same expression, " to keep peace in the fam- ily.** But, more than all this, he told John Christol, in May, 1871, that he had got to make a will to suit his wife " to keep peace in the family." He told Ephraim Bonner, in the month following, that- he was going to make a will to suit Mrs. Pierce aud " to keep peace in the family.** And, finally, on the evening of that very twenty-ninth day of July, when returning from Kalamazoo, he told George Whiting, at Galesburg, that he had been to town doing some business " to keep peace in the family, " that he had " signed the death warrant of his first wife and children.** How significant and impressive is such testimony as this ! Again I ask you, gentlemen, can you doubt that it was the influence of this woman, her importunity, her demands, her author- ity and control which induced and coerced this weak and worn out old man to make this will ? She was twenty years younger than he; in the full vigor of her prime a keen, artful, self-poised and calculating woman, as her whole appearance on this trial abund- antly shows. She was just the woman to hold with a steady and PIERCE WILL CASE. 201 iron grasp the power which, long before, she had acquired over this man. 1TO BATIFICATION OF THE WILL. Need I say to you, gentlemen, that this will, once made under these circumstances, could never be ratified by Isaac Pierce. I know the counsel on the other side have made this point, and they will ask the court to charge you that you may find a ratification of this will by Pierce, no matter under what circumstances it was made. Now, I take issue with the gentleman, most decidedly, on this question, and I say in the first place, that, as a matter of law, there could be no such thing as a ratification in this case. And, for the simple reason that if this paper was signed by Isaac Pierce when not in his right mind, or when intoxicated, or when under the influence of another, then it was not his act in the law, it was not his will, but was void, and of no effect whatever. It is void, in such case, because there is no consenting mind or will. Certainly, I must be right in saying, that if this man signed the paper when his reason was dethroned, or when his mental faculties were drowned in liquor, and when he had no such sound mind and mem- ory as the law requires, that then his act was void, and being void, that the law, and reason, and common sense, all would unite that he could not afterward, by anything he might say, give any effect to that which was wholly without effect and worthless in the begin- ning. The law is always founded upon reason and common sense. A man may ratify an act which he does while under some legal disability; as, for instance, a contract made before he was twenty- one years of age; but he can never ratify that which he never did. In other words, in all cases of what the law calls ratification, it is always supposed that the act was an intelligent and conscious one, and that the disability was only from the outside. So I say that here there is no question of ratification at all. It is a mis- nomer and an anomaly to say that there can be any such thing as the ratification of a void will. But if it be urged that Pierce could ratify the will if it was sim- ply made while under undue influence, then to this, in the second place, I reply that, as a matter of fact, the testimony shows that the influence of this woman was a continuing influence; that it remained and was never broken while this man lived. So the answer is com- plete and as broad as the proposition. For, if the influence was so great as to be undue in law at the time when the will was made, then, before he could ratify the act of making it, he must be 202 MODERN JURY TRIALS. shown to have escaped or recovered from this influence, and to b in a situation where he could speak his own mind and exercise his own free will. When, I ask you, is this time proved to have been ? But, gentlemen, the court will tell you that there can be no such thing as a ratification of this will, that it must stand or fall upon the man's condition at the time it was made, and that nothing he could afterwards say or do would breathe the breath of life into this paper, if, at this time Isaac Pierce was not in the possession of a sound mind and memory, or was unable to exercise his own free wilL Something cannot be made out of nothing; nor can so solemn and important a paper as a man's last will and testament, which the law requires to be in writing, and duly and formally declared, attested, signed and sealed, be revived from legal disabil- ity or death by a mere informal or casual verbal acknowledgment, made in reckless, blasphemous, or drunken speech. THE WELL UNKATTTRAI, AND UNJUST. Gentlemen, there is still left one great test or principle to apply to this will in order to see whether it be the solemn and deliberate act of the testator and that is the test of its humanity and its justice. I know a man has a right, under the law, to make an unjust will, but I know, too, that when the question is whether he has made a will, and that question be at all in doubt, you may look into the provisions of the instrument itself to see whether they be contrary to natural justice, so that it may be determined whether the man would be likely to make such a disposition of his property. A will that is inhuman and unnatural is at the same time unreason- able, irrational and improbable. I have therefore, gentlemen, the right to urge this consideration upon you and to ask you to look to this question of justice. Need I take one moment to show that this will is grossly unjust ? Here are these children by the first wife, this man's first children, who helped him to accumulate this property, practically disinherited, their mother turned out of doors, while this woman Emeline, the tempter and destroyer of this home, and her children, who have never earned or added anything to the estate, are given everything. Why should Isaac Pierce thus forget these older children ? They had worked hard for him; they were poor and needed assistance as he well knew, and he had no feeling against them. Why should he cut them off in their poverty? Why, gentlemen, all this evidence shows that these contestants had been most generous and forbearing in their conduct towards PIE11CE WILL CASE. 203 their father. They had always been respectful to him even when his life had been such as not to command respect from the world ; they had been kind and attentive to him when suffering from accidents or sickness; and finally they exercised a degree of for- bearance when their mother was sent away which seems, at first view, almost shocking to our human sympathies. The counsel has dwelt upon the fact that some of these contestants assisted their father in procuring the Indiana divorce from their mother. They did this, no doubt, thinking it was better than the open shame and danger of his living in adultery with this woman in the midst of a community excited and threatening a prosecution; but without this plain and perhaps sufficient motive which I can plead in their excuse, the fact remains that they rendered a much needed service to their father. Why should Isaac Pierce forget all this when he came to make his will? And there was his poor, unfortunate daughter in the asylum, and her helpless and more than orphaned children whom he loved and whom he told Dr. Babcock he intended to provide for. Why should he forget them? Ah! gentlemen, these questions cannot be answered satisfactorily on any ordinary principles of human nature or natural affection. He could not have forgotten these claims upon his bounty and his gratitude if he had been in his right mind or in the free exercise of his will. O 1 it needed all the audacity of the counsel to say that this will was just. Gentlemen, the argument is an insult alike to your reason and your humanity. If this be a just will, then where can one be found which is unjust? If this be a humane and a natural will, then where can be found a will which is inhuman and unnatural? Look, gentlemen, at these opposing parties before you. Here, on the one side, are these contestants, the first children of Isaac Pierce the poorly clad and hard-working boys and girls of that early, desolate home now past middle life, some of them verging towards old age browned and bent by toil, in rusty and homely garb, still hard-working and poor; cheated and deprived of their just inheritance, which now they so much need, by this relentless and grasping woman who brought calamity and sorrow into their father's household. There, on the other side, sits the author of all this trouble, surrounded by her daughters, tho later children of Isaac Pierce, dressed in all modern extravagance and finery gay, frivolous, useless, modern young women, reared in luxury and educated at boarding schools. Tell me, which of these twain have earned the right to enjoy this property ? 204 MODERN JURY TRIALS. CONCLUSION. Gentlemen, this man violated the physical and the moral law alike; and he reaped the terrible penalty. For that great wrong to the wife of his youth his remorse was keen and lasting. It breaks out here and there, frequently, through the testimony. How touching and overwhelming was that incident related by Smith Lawrence, when Pierce passed his wronged and injured wife on the highway as the sun was setting, and gazing after her, exclaimed, as the tears came to his eyes: "I would give all that I am worth I would give the whole town of Climax if I owned it, if I had lived with that woman!" There was conscience there were the scourges of memory at work. At last, bent and broken under the heavy load of moral guilt, of violated physical law and domestic trouble, with mind impaired and shattered, and confused by drink, under the powerful influence of another, he put his unsteady hand to a will which outrages every sentiment of human affection, and controvenes every principle of natural justice. Gentlemen, it is your solemn prerogative now to correct and repair this terrible work. You must set aside this wretched mock- ery of a will. Let this man's property descend to all his children to the deserving and the undeserving alike. These contestants will then only share equally with the children of this usurping woman, and she herself will remain the dead man's widow in the law, to the exclusion of that early, lawful wife, who still lives to suffer from man's injustice. What more ought these proponents to ask or expect ? Gentlemen, I beg of you to pause and reflect before you render a verdict sustaining this will. You have it now in your power to do a great and supreme act of justice an act noble and God-like, and worthy of your sympathies as men and your oaths as jurors It is the glory of a jury to be able to execute some portion of that justice which belongs supremely to God to vindicate the cause of the weak and oppressed, and to blast and shatter the power of the oppressor. In the name, then, of common justice and humanity, I appeal to you for a verdict for these contestants. Let no preconceived opinions, no prejudice, no obstinacy in your jury room, no specious pleas of any kind, keep you from this high duty. For in doing this you will be true to your oaths, true to the law, true to what this dead man would say, could he now speak to you from the grave, and true to the eternal principles of justice and right. FARM AN- WARD TRIAL. 205 [Mr. May's speech covered fifty-four pages of closely printed matter, necessarily condensed for this purpose. The will waa oroken.} THE FARMAN-WARD TRIAL. Held at Detroit, November, 1867. In this trial Senator Jacob M. Howard made his last appeal to a jury. It is very brief, many of the circumstances being lost for lack of a stenographer's report. The facts, as preserved, will be read with interest by all who appreciate oratory or know of the distinguished advocates who participated in the investigation of the tragedy. The strong confidence of counsel on clearing their client by public opinion is a marked feature of the defense. Their theory was based upon the common sense of the jury and the right of protection that a brother could render an orphaned sister. The boldness of the appeal made for young Farman was heroic. The story of the case is almost incredible. In the early evening of October, 1865, Avhile Captain John P. Ward (a vessel owner), was walking the streets of Port Huron, in company with his friends, he was suddenly confronted by defend- ant Farman, a boy of sixteen years, who fired three shots at Ward, wounding him fatally, death resulting on the 22d, some days later. Previous to the shooting, Ward had taken charge of Farman's little sister, of near fifteen years of age, to take her to Detroit from Lexington, and (as Farman believed) seduced or outraged the girl on the hurricane deck of Ward's steamer. The child being unat- tended, of weak mind and tender years, made the facts extremely revolting. Before the shooting, an examination was had, and it appears Famian feared Ward would be released and go free. Threats of that were freely made, and that no justice would bind him over. This, coming to Farman, led to the homicide. Further facts will appear in graphic form through the ingenious statement of counsel. The language of Hon. G. V. N. LOTHROP is terse, and at times powerful, as the brief selections will show. He began by say.ing- 206 MODERN JURY TRIALS. The act carries its own commentary. It is not the brutal kill- ing of an assassin. It frames a vindication in the minds of every right-minded man and every pure-minded woman. I never had a more grateful task in all my professional services than that which calls upon me to express this before you. We would not willingly drag the turf from the dead shame; we would leave it to time and oblivion. But in behalf of the living and the dead, and in behalf of justice in the case of this boy, I rejoice to do my duty. The charge is murder, one of the highest offenses against God and man. Look at the prisoner. Does he look like a murderer, or dangerous to society ? What is there in the act of the boy that speaks of a wicked and malicious heart ? Look at him; you see him moved by a great cause. You see before you his little sister, tender beyond her years. You see him with his widowed mother; you see the affliction of the family. There never was a more touching story in itself told anywhere. What is it that brings this boy to a bar of justice to answer for a crime ? What brought him here to-day ? It is the old, old story. A tragedy of wealth and pride that time has been repeating over and over again, and will as long as the world shall stand. This pride and wealth and lust learns its lesson slowly and hard. We see many of them in history. Twenty-five hundred years ago, when Brutus bore aloft the bleeding body of Lucrecia; when the people of Rome tore down the kingly throne, and the brutal emperor barely escaped alive, I dare say some satellites of Tarquin said this was murder; I dare say some senator might have protested against the aggression on the kingly life, but that is lost in history and the roar of the Roman people. We are told that the peace of society has been periled because a young Tarquin met his Brutus at the hands of this boy defendant. Our society ! has it been less protected, less secure, gentlemen of the jury ? For six months he has been liber- ated on bail, by one of the most esteemed judges that ever graced the bench, and we see no danger. Since he has been at large in his humble and quiet pursuit, who has noted danger ? Is it not quite the reverse, gentlemen ? You know the peace of society has not been periled; but a feeling of satisfaction has come to tell us that the ravisher in this community shall not go unpunished. Was there horror at the killing of Ward ? The horror belongs to the other part ! Murder is killing a human being in the peace of God. Was he in the peace of God ? He that had invaded the sanctity of this poor girl's honor, was struck down by the noblest passion that can animate man ! An act for which every virtuous maid and matron in the land should crown him with wreaths of laurels ! FARMAN-WARD TRIAL. 207 Hon. A. B. MAYNARD spoke eloquently for the defense, often in that peculiar vein of homely sarcasm that moves a jury more than logic : Counsel have cited ancient cases; so will I. There was the case of Simon and Levi in thirty-fourth chapter of Genesis. Levi had a beautiful sister, and Shechem, who seduced her, was a pretty respec- table sort of a fellow, for he said to Jacob, her father, " Ask me never so much dowry and gift and I will give it." But Levi was still angry at the outrage, and said, we cannot do this thing ; we cannot give our sister to the uncircumcised; and finally they were circumcised, and while they were still sore, Daniel fell upon them and slew them and took their sheep and cattle, and confiscated their property in good fashion. And Jacob thought it over and said to Simon and Levi, " Haven't we been a little severe in this matter ? " and the boys said, " Father, shall this man deal with our sister as an harlot ? " and Jacob subsided and said, " You served him right." There was another case, of David's son Amnon, that pretended to be sick, and had his sister Tamar sent in to prepare his meat. And Tamar took flour, and made cake in his presence, * * * and he forced Tamar, and outraged her. She protested and entreated, and all to no purpose. He insisted, and when he had done his devilish deed and turned her bodily into the street, he laughed about it and treated it as a huge joke. But Absalom, his brother, heard of it. He suppressed his wrath for two long years, and then, at a sheep shearing, while Amnon was merry with wine, they rushed upon him and slew him. And what did David say? "When he learned that Amnon was dead, he was comforted." He knew he was not fit to live upon the earth. And this is from our good book, the Bible. Why, gentle- men, can you conceive of a case so outrageous ? Take a girl of twenty-five or thirty, it would be bad enough. But take a feeble child, who is put in the custody of one almost as her guardian and protector, and seeking a dangerous place, away up on a hurricane deck, to accomplish his hellish purpose! blasting her future life, and carrying ruin upon her heart-broken mother, widowed, poor, and unable to bear the anxiety of a trial like this! I tell you, gentlemen, nothing could sting the heart to madness as this transaction. And when you think of a strong man taking a timid girl upon that high deck, with a lie in his mouth, saying the air was better, that she would find company up there, and sur- rounded by his minions and crew to guard his dreadful deed; and say, when such circumstances are brought home to a brother, it is 208 MODERN JURY TRIALS. as though he caught the villain in the act; and in view of the degrading deed, and in view of the shielding the ravisher from the penalties of such an atrocious wrong in the name of God, what more would you want to madden and craze and provoke jone more to the deed he did ? I ask you, if that would not carry his passions beyond his control, what would ? If he had approached your sister, in the commission of the deed, would you not strike him to death on the moment, on the spot, and every man of you say "Amen ? n * * * If he had happened along in time to see the outrage, would you claim that he ought to be prosecuted ? * * He had heard her story. He had heard Ward was going to escape. The scene came up in all its consequences. * And we all know, in deep affliction, there is no great outburst of feeling; there is a quiet surface, but a determined act. Can you believe this poor boy's mind was free from it, night or day? This outrage on his only sister, of tender years, looking to him as her protector ? Night and day, from that fatal time, he carried his sorrow, his emotions, till again and again he sees the deed in all its horror; sees his family disgraced, and the villain go free! I say it was too much for his reason, his judgment, and his self-control! And he broke down under it all; and it ia for you to say, whether, under the facts, you will pronounce him a murderer! * * * I say, and say it solemnly, and say it meaning what I say, if this boy was a boy of mine, I would thank God that he had the man- hood to pull the trigger that sent 'he buttet which gave Johe\ P. Ward the downward pass to his final home! Fandan a case was finally abandoned, although this jury stood eight for conviction and four for acquittal. An incident in the above case may be added. Counsel pressed the cross-examination of Farman to great length. Mr. Lothrop objected, as it might tend to prejudice defendant. Judge Walker directed that the question should be answered. Mr. Lothrop said, "Don't answer." "Answer!" replied Judge Walker, sternly. But the witness refused, and a scene of confusion followed, but no answer. After the jury retired, Mr. Lothrop was called up and fined tec dollars for contempt, being severely censured by the court, to which he said, " The pecuJinr circumstances of the case places me beyond the power to compete with the extreme language of the court ! " He had supposed his whole duty was to protect his client from harm in every way possible. He would not appeal, but he knew of RULES OF PRACTICE. 209 no precedent that would, under like circumstances, censure the act he had attempted in good faith. He continued at length, to the amusement of the bar, who evidently were clearly on his side. A passage at arms between Counselors Lothrop and Howard occurred at the closing of Mr. Howard's address for The People, that is an excellent specimen of the distinguished advocate's power in reply. Mr. Lothrop had said to the jury: "It was an act, gen- tlemen, for which every virtuous maid and matron in the land should crown him, with wreaths of laurels!" Coming to this point, Senator Howard, in his massive, Websterian style, said: "How did he kill him? He shot him! Where? In the back! While he was down! Three times in the back! Shot him again and again, the young assassin! Yes, the young assassin ! (hissing it with tremendous force.) And this was the act for which my brother would have every virtuous maid and matron in the land crown him with wreaths of laurels! " The effect was electric. It is regretted that no report can be had of this extremely ingenious and effective speech. Mr. Howard's rare faculty lay in convincing a jury. He had been prosecuting attorney and attor- ney general, as well as representative in Congress and senator, when this, his last jury argument, was delivered. He spoke with force and fervor, in gesture using mainly his right hand. There was a measured rhythm of his strong sentences that broke down all little points, and sent conviction directly to the hearts of the jury. In this trial he was aroused to his very best. With every element of sympathy against him, he prevented an acquittal. TWENTY-ONE RULES OF PRACTICE. Book knowledge of law is like a chest of fine tools in the hands of an unskilled artisan useful, but impractical, without experi- ence. Practice in law must be largely learned from contests in courts. It is the lawyer's trade; the more he has of good practice, the better he will know how to apply his learning. To have the keen tools, and the well learned trade, both at com- mand, may make him an accomplished workman. No arbitrary rules of study can be laid down, as few follow the whole field of law, atd more adopt some specialty, and read accordingly. From 14 210 MODERN JURY TRIALS. observation, practice, reading, attendance at courts, in different States, and counsel with able attorneys, the following rules, with reasons, are given as aids and suggestions in general practice. The general rules of practice may be confined to twenty-one, and by careful attention to each, great advantage will be gained over a hap-hazard method of trials, without any fixed purpose in examina- tion of witnesses or argument to a jury. They may lead to win- ning five extra cases a year. RULE L Study every case by itself thoroughly, and make a clear brief of both law and evidence. No musician will undertake to execute new and difficult music before a public audience without knowing what it is, and how it sounds; he will drill on every note until he masters each inflection. Actors rehearse before every play. Horses are scored, trained and practiced before every race. Boxers, wrestlers, racers, walkers and oarsmen never start off-hand. It has been told again and again, that the best trained athletes were the most likely to win ; why should lawyers be an exception ? A lawyer in court without a brief is like a captain at sea without his chart; a driver without a tried horse; a marksman with an unknown gun. But one with a well-mastered case is strong in every muscle; indeed, his victory is over half accomplished. RULE IL Know what each witness will swear to, separately, and together. It often happens that, in criminal cases and family quarrels, witnesses are separated after the manner of the well known trial of Susannah and the Elders, given in the Bible, where, on the first hearing, with witnesses &11 present, it was shown that Susannah was guilty, but when ali of the witnesses were excluded but the person testifying, two material points crossed each other : the one Elder swore to an offense under the olive tree, and the other to the same offense under the mulberry tree 1 each on opposite sides of the garden ! Susannah went free, while her accusers were executed. Show each witness the importance of candor / of holding to the truth, and talking in a reasonable manner, with facts and circum- stances so woven together as to secure confidence. I remember an assault case, where an eye was put out with a poker, made from a shovel handle. In the doctor's statement of why he knew it was that way (instead of a fall on the zinc platform, as claimed b) RULES OF PRACTICE. 211 defendant), he showed that the soot in the wound from the poker appeared like butter cut with a rusty knife, which convinced him, and it convinced the jury, who gave heavy damages to the plaintiff. RULE HL Open the case fully before any evidence is in. Whether the plaintiff or defendant, the claim should be known, and fastened in the minds of the jury, from the start. If for the plaintiff, a careless, half heedless statement is made, little import- ance will be attached to the suit until it opens itself, as it were, and, in such cases, juries often take an early prejudice that requires a great amount of evidence to remove. It is, therefore, very essen- tial to success that a terse, clear, and forcible opening be made, and one that is comprehensive and interesting to a jury. Especially is this true in criminal defenses, where, by an even start, the jury may carry a favorable impression of facts in the prisoner's favor, that will come with double weight if opened early in the trial. Experience shows that little is ever gained by a smothered defense. The People's side is, of course, well known. The defendant, if brought in fresh from the jail, comes under a cloud; suspicion is cast upon him by the mere force of circumstances, and many believe prisoners guilty simply because they are under arrest. It is of the utmost importance that not one word of evi- dence be heard in such cases before a full, earnest and candid open- ing is made for the defendant. Courts always permit it, and often encourage it. This style of opening has a double advantage of allowing counsel to tell the worst that is likely to be established against the defendant, with his answer thereto; creating an impres- sion that, even with such damaging circumstances, the prisoner is not guilty. It is not the duty of defending lawyers, however conscientious, to convict their clients; such is the province of a jury, and, if ever so guilty, the counsel for defense does his whole duty to present his client's case in a clear, convincing way, that, with the People's side equally well managed, The jury may reach a decision based on the law and evidence, fully, clearly and evenly explained. An exception to this general rule will be in cases where the defense is made wholly from the weakness of the plain- tiff's evidence, or from cross-examination. MODERN JURY TRIAL& RUUB IV. J? forcible, firm, dignified and clear. A jury will not be long in reading between the lines," if counsel lacks force and earnestness of manner, and an interest in his client. For days and months, both parties to the suit may have carried their legal trouble at home, and at work, like a leaden load, dreamed of it nights, and pondered over it hours together, until their heads would ache with anxiety. To such, a tame or waver- ing presentation of their side of a suit is more than human nature can endure, and is sure to lose a client, if not the case on trial. A firm and dignified bearing will be impressive alike to court and jury, and add respect for your argument that never comes of " shilly-shally," and frivolous statements. The business of law- suits is to adjust differences, protect the helpless, enforce rights, and punish wrong-doers it is serious business. But above all, says an old attorney, BE CLEAR. Many jurors are ignorant of long words; they do not comprehend the real issue to be decided; some understand English imperfectly, others reason in a slow, round- about way, and reach conclusions after a long study and much meditation. Witnesses may be confused by a lack of clearness. It is a good plan to see some experienced juryman, early after a trial, for a few trials at least, and ask, how that case was presented. In nine out of ten cases he will say, you ought to have made this or that point a little plainer. The jury did not understand it fully. RULE V. Never be bluffed out of Court, but do not begin the bluff. Once in court stay in, and be an opponent, as Shakespeare well describes through Polonius : "Beware of entrance to a quarrel, but being in, bear it that the opposer may beware of thee !" Some men will fight all the better by being thrown down a pair of stairs; -some take to the woods at the first show of battle. Clients, suitors, juries and spectators, like a man who can stand in an emergency. A sudden turn in a suit a new point sprung upon the trial an enemy from the flank should draw out the resources of an advocate; and happy the man who is equal to such occasions. If equal, he is marked and remembered long afterwards ; but to secure this victory, one should be very guarded not to begin the assault, for the vanquished assaulter is always doubly defeated and humiliated. Great lawyers seldom stoop to petty advantages. RULES OF PRACTICE. 213 RULE VL Brevity of facts, terseness of statements, tell b&t. Only one lawyer, since Rufus Choate, has succeeded by lengthy sentences, as an advocate before juries Mr. Evarts and his hap- piest efforts are given in less elaborate style than is his usual custom. Men like Col. Ingersoll, who cut up their statements in little stars, are followed with greater interest. In the jury-room, after the Court's charge, when twelve men con- tend for a verdict, will be often heard such little old sayings as, " The laborer is worthy of his hire " " They don't make thieves out of that kind of men " " It takes two to make a bargain " " Who began it ?" " It served him right " " Put yourself in his place " " Give him another chance " " How many men would do differently ? " " No man becomes suddenly vile." These are not forgotten. RULE VIL Never allow yourself to switch off " Kill the squirrel ! " A trite old saying is, "Stick to your text." In a lawsuit many things happen to try one's patience; witty retorts, stinging replies, low personalities, may so engage counsel and jury as to smother and obscure the case. Jurors take sides, and lawyers that grow personal, and enter into outside discussions, will lead a jury in the same direction. The real winner, after all, is one that, with single- ness of purpose, holds to his point, and hugs the issue to the end. Harper's Weekly gave an excellent story of a lawyer select- ing a clerk, that applies to this point admirably. The lawyer put a notice in an evening paper, saying he would pay a small stipend to an active office clerk; next morning his office was crowded with applicants all bright, and many suitable. He bade them wait in a room till all should arrive, and then ranged them in a row and said he would tell a story, and note the comments of the boys, and judge from that whom he would engage. " A certain farmer," began the lawyer, " was troubled with a red squirrel, that got in through a hole in his barn, and stole his seed corn; he resolved to kill that squirrel at the first opportunity. Seeing him go in at the hole one noon, he took his shotgun and tired away; the first shot set the barn on fire." " Did the barn burn ? " said one of the boys. The lawyer, without answer, continued: "And seeing the barn 214 MODERN JURY TRTATA on fire, the farmer seized a pail of water, and ran in to put it out." "Did he put it out?" said another. " As he passed inside, the door shut to, and the barn was soon in full flauies. When the hired girl rushed out with more water " " Did the hired girl burn up ? " said another boy. The lawyer went on, without answer " Then the old lady came out, and all was noise and confusion, and everybody was trying to put out the fire.** " Did they all burn up ? n said another. The lawyer, hardly able to restrain his laughter, said: "There, there, that will do; you have all shown great interest in the stoiy;" but, observing one little bright-eyed fellow in deep silence, he said, ** Now, ray little man, what have you to say ? " The little fellow blushed, grew uneasy, and stammered out, " 1 want to know what became of that squirrel, that's what I want to know." "You will do," said the lawyer; "yon are my man; you have not been switched off by a confusion and a barn's burning, and hired girls and water pails; you have kept your eye on the squirrel." A whole chapter is given in this story. It is packed full of excellent advice to beginners, with a few good hints to older coun- sel. In every suit there is, or should be, one squirrel to kill, and no more. RUIJB VIIL Remember, juries do not know att of the facts. Lawyers appreciate the fact that cases come to the office in a vague, uncertain way. The half is not always told; that, even with several calls and explanations, it is difficult for a counsel to under- stand the facts of a law suit. Think, then, how much more it is to show these facts to the twelve new listeners, under the narrow rules of evidence, and to enable men unlearned in the law to reach a correct decision. Is it a wonder that juries blunder? Is it not a wonder that they do so well ? An old lawyer once said, after every defeat in court, " If you could ask the cause, the answer would be, 'Your men had the wrong side, or they didn't understand it.' r It may be the witnesses are confused, that they do not talk well in their statements. It is better always to win a suit first in the office. Let each witness be carefully examined, and cross- examined, and re-examined, until they know the effect of a halting, unreasonable, untruthful story, and know how much stronger zfact is accompanied by a circumstance. KULE8 OF JfHAUTlGJG. '215 Here is a suit over a broken leg in a wrestle. Six men swear it was a friendly wrestle, but the injured man says, "I'll tell you just how it happened. The most of the men were half drunk; it was late in the night; I had been sick; I didn't want to wrestle; he had tried me before; he is too strong and big for me; I shied away from him; then he came up again with his thumbs in his vest, and told me he never meant to hurt me; just then, as he got in reach, he grabbed me, so (illustrating), and jerked me, threw me against the billiard table, and broke my leg in two places; I never even clinched with him; then he bent down and said, almost crying, 'I didn't mean to hurt you, Billy; I'll make it all right I'll pay all it costs you.'" He won, over the six witnesses; he had a fact and an inci- dent combined. A fact is always stronger and clearer, coupled with a picture of how it happened. RULE IX. Show no uneasiness in temporary defeat. Sometimes a point fails, a branch of a suit falls through. It may not be more than the regiment of an army. It is no time to flinch or show color; it is a time to bring out mettle. At such times Mr. Lincoln is said to have coolly remarked: "We will give them that point; I reckon they were right there." Proceed with as much coolness as though the value of the loss were less than a shilling. But use the other forces, and see that the whole bottom of the case never falls through a small opening. Good lawyers say that cases they were sure of winning, are often lost, and others that seemed lost in the middle of a trial, turn out splendidly in the end. It is well to have a smooth, unbroken line of evidence, but a sharp, stinging defeat, on one point, and a pithy, incisive argument on the balance of a suit, may make a lasting victory. New trials, frequent reversals and discouraging circumstances, may end in sig- nal success. A dry-goods runner was injured in a railroad accident, and sued the company (Grand Trunk Railway), and won a $15,000 ver- dict. A new trial was granted, and he gained $26,000. A change of venue and one more trial brought him $45,000 damages, which last judgment was affirmed. Nothing could be clearer than that impediments to a trial, or set-backs in enforcing a claim, are con- sidered by juries in the final balance arrived at. So it is true, when one contends against odds, juries remember it, and as sure as any mean little advantage is taken in a trial, so sure the advantage 218 MODERN JURY TRIALS. taker is the loser in the long run, for juries are human, and human nature likes fair play in litigation. BULB X. Drop a bad witness Cross-examine only to gain by it. To cross-examine a sharp witness is to strengthen his testimony. Frank Moulton, in the Beecher trial, was always ahead of his examiners. To repeat and repeat often, is to weld and rivet with the jury what has been said, as most witnesses would sooner vary the truth than own to a falsehood. It is only on cases of doubtful identity that cross-examination tells so completely, and then it is dangerous ground. To badger a bad witness, that, like a race horse, gains by every break, is no less risky than playing with hot irons where some one will be burned. It is better to seem not to need him, and allow it to go half noticed, than intensify a weak point by repeating it on the witness stand. An exception to the rule is, where in a murder on board a steamer, a positive witness knew just how many officers were on board w^o they were, and where they were; but on placing each at a certain point, he was confronted by the question, " Who was at the helm ?" Which so staggered him that he broke down and admitted his blunder. Another case of identification is where a man called with a forged bill, and took in payment a check for a large sum of money. On direct examination he was sure he knew the prisoner to be the guilty party; but being wound up gradually by the dark or light room, whether he stayed long, or was spoken to, whether he had seen the prisoner before, and finally, if he was as sure as though he actually knew him; witness faltered, admitted he possibly might be mistaken; that he had some doubt, and at last lacked fully enough of certainty to make a reasonable doubt, and release the respondent. This cross-examination should be used with caution, discretion and judgment. RULE XL Make your evidence reach the real heart of the case. Before every trial witnesses should be examined, and never sworn without cause, and held to a strict rule of evidence, until, with truth and candor, they can bring their story to the gist of the action. More witnesses swear around a point, and omit vital and essential elements, than come squarely up to the mark, and make their meaning fully known. RULES OF PRACTICE. 217 Sometimes a case turns on the intent, again on the cause, and often on who was the offender. To know what the core of the case is, and hold it in sight, by the proof is the part of a wise coun- selor. RULE XIL " The main point in law is good evidence" Is an old adage, and one not to be forgotten. Impress client and witnesses with the fact that a lawyer should know the good and bad side both, and be prepared to meet either; as scouts are sent out before a battle, so witnesses should be tested before trials. Show them the real issue, and hold them hard on the line of direct- ness. For after all, " Man is a mystery that no other man can solve; we are all spirits in prison, making signals that few can understand." RULE XIIL Avoid frivolous objections Save your forces for the main chance. Many a lawyer, to be witty or show off, will talk over and work over his ground in small matters, that weary the court, and become stale when needed in the final argument. An old lawyer (we quote him often), once said, " The worst thing that can happen to a young man is to think he is smart." Such men grow tricky, captious, and excessively anxious to show off on trials. Juries are sure to count the case weak that requires such treatment. It is a mark of vanity to trifle away time on mat- ters that reach only to the husk or chaff of a case, and obscure the kernel by such tactics. Mr. Lincoln was noted for giving away small points. " We may be wrong on that, your honor," he would say; or "I think we were wrong there, but it is not the gist of the matter anyway." This fair play and liberality always told with a jury, and when he finally said, " Now, this much we may ask, and when I shall state it, it will be a reasonable demand." Then, with all the husk trimmed off, he would state, in a candid way, such a reasonable request that the justice of his demand stood alone and relieved of everything, but a fair, just judgment. RULE XTV. Speak clearly, carefully and candidly. Judge Cochrane was one of the most patient and charitable men that ever graced a bench. He would listen a full hour to a dry, 218 MODERN JURY TRIALS. tedious plea without turning in his chair. But he sometime! remarked aside that he knew of lawyers who could talk a full hour and not make one single point. He believed many attorney! talked their cases to death. While a careful explanation is a good argument, a long, drawn out talk, without a definite pur- pose, is likely to lead to the belief that the lawyer is talking to per- suade men against their better judgment, and this is sure to react on the speaker. Jurors respect and admire candor, and occasionally relish wit, as it serves to rest and relax their minds for better efforts; but lev- ity continued at any length, is like a variety show, soon forgotten. The speeches, plays, songs and sayings that last, and ring in the ears long after they are uttered that move the judgment and mold the actions of men, have a sacredness, often reaching to the fireside, the home and the tender relations of life. Courts and juries should be impressed with the single thought that you are not inviting them to either a quarrel or a play, but to determine some right, and redress some wrong that you failed to settle otherwise. Aaron Burr's great rule was: JBe terse. The art of selection, he said, was the greatest human faculty. His arguments were made in half hours, never longer. XV. Drop all examinations and arguments in the right place, When a witness has reached a clear point and a smile follows, per force, leave the point let it stand like a rock on the mountain side, uncovered and alone. To stop short will attract attention and rivet the mind to its importance. All men magnify discoveries, and to leave it as though a keen sighted man would just see it, and no more, gives him credit for discernment, and relieves his mind of the burden and rubbish that he dislikes to carry. It is only here and there, like mile-posts, that salient points are fixed in the minds of a jury, and each should stand alone in its strength and clearness. It is the pith of a story to end well. The cream of a joke is in the little things suggested, half discovered, that lead to new-born pleasure. A surprise in evidence should end where the story ends, in a climax, that rings like a whip cracker. The same may be said of argument. There is nothing like knowing when to stop. I remember, in a trial where a son and father were parties, at the close of a pathetic paragraph, counsel said: "This should not be, RULES OF PRACTICE. 219 Nearing, as we are, the great holidays when children gather around the fireside and tell over the stories of the past, eat and drink and be merry, in the sweet memory of the long ago; when they talk of the absent, and the loved and lost, this should not be " And sud- denly the father rose up, and with an emotion that none could mis- take, he pointed to the judge and said: "Tell the jury to give him all he asks. Stop, say no more! " and counsel, though only a quar- ter through, was shrewd enough to stop at a winning point. RULE XVI. Let judge and jury know you mean what you say. From the date of receiving a case it should grow on the mind continually. By frequent reviews before the trial, by making additions to briefs, and by earnest study, it should be a case for a near friend, which to lose will cause you pain. Let it be as though you might never have another case, and on this one hung all your reputation as an attorney for life. So charge yourself with it that it will come from every muscle, every gesture, every word, as deeply in earnest. There is no power in persuasion like where one believes what he says, where it breaks down all opposition, and cuts to the hearts of hearers like the language of a Moody or a Luther. Great men have been earnest men. Great orators have been moved by their own words and arguments, till they filled their hearers with the fire of enthusiasm. The earnest words of an old Indian chief will better express this thought. Before entering a battle he would call his braves around him, and smiting his brawny hand upon his manly breast, he would say: "I know that I shall win this battle; I feel that I shall win this battle; It is burning in my body, that I shall win this battle I " RULE XVIL Consider your adversary powerful, and "be ready for him. It was a rule of Napoleon never to underrate an enemy. In court trials the enemy is usually, and almost always, stronger than we expect. Hearing one side, and that imperfectly, and generally well colored, the attorney is often surprised to find he has much to con- tend with before unknown, and if he has gone to trial weak in law or evidence, he may find too late, that his enemy is all powerfui and cunning, and he may fight against odds, when he looked for an easy victory. An easy victory in law is not common; usually both sides have some rights. Each party is fortified, or he would have 220 MODERN JURY TRIALS. surrendered at discretion. It will not do to depend on a weak opponent to win a suit; he may come at the last moment, sup- ported by able counsel; he may hare practiced until, like David with his sling, he can hit his adversary in an unarmed place. There is only one way to be tolerably sure of winning, and that is to be always ready, always prepared, and always willing to provide th( best weapons of warfare. XVI1L Suits turn on evidence of facts, with the application of the law. To make a legal defense, or a lawfuf demand, the evidence must be within the rules of law and the statute of limitations. An oral agreement to sell real property or assume the debt of another is of course void, and the first consideration will be, is the demand a legal one ? and second, can it be sustained by evidence ? It is not only humiliating, but a source of actual loss, in business, to bring a stale suit and find it barred by the statute, or a good cause and lack evidence. So that before going to court, every case should be tried in the attorney's office; tried with the evidence and law at hand, and tried with a full knowledge of the facts, but, more than all, in starting a suit, to use the right parties, to bring the right action, is vital to the life of the litigation, and no rule of practice should be more carefully heeded than this. Be sure you are right! If upon the wrong road, the further you go the more time is lost, and the further you are from the object to be attained. In a certain suit, brought within a few days, of " outlawing," the plaintiff neglected an important point in joining the proper defend- ants, he submitted to a nonsuit. This barred the claim, as the adjourned day placed it over six years past due, while the nonsuit was as though no proceedings had been commenced. The true temper of the steel depends alike on the degree of heat and the cor- rect time to cool the metal; the law and the facts must be well united to make a judgment possible. RULE XIX. Twenty questions of fact, witt arise to one of law, in court trials. It is seldom that cases are lost on technicalities, more frequently on defective proof of facts. There are so many means of negli- gence, so many releases, or receipts and discharges, that lawyers are often defeated by some paper carelessly signed, without con- sulting counsel. In view of these facts suitors should be cautioned RULES OF PRACTICE. 221 early in the case to leave all settlements entirely with their coun- sel, and never settle without advice. There is nothing more annoy- ing to an attorney than an error that takes his case out of court at the wrong time, without securing the fruits of his labor; and to prevent this he should instruct his client to keep faith with him and reveal all matters in confidence, good or bad, and conceal nothing in the case essential to be known. The more thoroughly the facts are prepared and studied, the more certain will be the result. If a case fail by a law point that no one can foresee or prevent, counsel should never be blamed for it. But a failure on a point of fact that could be foreseen is an act not often forgiven. RULE XX. See that you do your work well. It brings business. To give one rule for increasing business, embodied in two words, I would say: Be thorough. A well made deed, abstract or paper, will bring other like work to an office. A well tried case, fully and forcibly put, will bring other suits. " That is the way," said a listener, " that I would like my suit tried if I had one." He is a worker, is a recommend for a lawyer; he makes his client's case his own, is better; he wins his case, is still better ! But no one can win cases without work. Great efforts are made after long study. Judge Comstock worked seven weeks in the Tweed case, citing over five hundred authorities, and when he reached the end of his brief, saying, to the Court of Appeals, " And from all these cases but one conclusion can be reached, and that is, that every man charged with an offense against the law is entitled by the constitution to a fair and impartial trial by jury, for each offense, to the right of challenge, the right of counsel, and to be confronted by witnesses in every case, but in this case it was sought to annul these rules, and by conviction on one offense, multiply it by fifty-five! and imprison the respondent beyond the term of his natural life; and having suffered more than one sentence already, we conclude he has paid the penalty, he has suffered long and patiently, and should be released and set free!" The court sustained this view, but other suits followed. RULE XXI. Hold on hard to the strong points of law and fact. It is related of Mr. Lincoln that he seemed utterly regardless of little points, holding to the core of his case, and winning by his lib- 222 MODERN JURY TRIALS. erality and fairness. In the trial of disputed bills he would waive interest or forego trifles, from time to time, until the close, when he would bend to his work of winning the main issue with a deter- mination seldom witnessed, and having wou the jury by good humor, he would fasten their judgment on the sum he demanded. The higher one rises at the bar, the less is known of little, quib- bling demands and defenses. In the " upper stories " men battle for principles and property with manly weapons, as will be seen by the efforts of Stanley Matthews, Gen. Butler, Arnold, Hendricks, Carpenter and Judge Chipman, and many others referred to throughout this volume. If there is one maxim more to be remembered than others, in practice, it is, " BB THOROUGH." Is it a demand to collect ? Get it admitted; get it secured; never higgle over trifles; watch the main chance. Is it a compromise between neighbors ? reach a just settlement and insist upon it. Is it a breach of contract ? make whole the injured party. Is it a family difference ? end the litiga- tion. Is it the liberty of a man in chains ? show him to the jury in his noblest manhood surround him in court by his friends and neighbors; tell what is good of him; assume not that he is wholly innocent, but that he may not have been proven guilty. The sacred calling of a lawyer imposes earnestness of manner, study and ingenuity, tact and energy, and a heart full of love and loyalty for right, and with them every promise should be kept as inviolate as if made under a solemn oath. 'Tis said, "The accusing spirit that flew up to Heaven's chancery with the first oath, blushed as he gave it in, and the recording angel, as he wrote it down, dropped a tear upon the word, and blotted it out forever I " IDEAL CASES. 223 IDEAL CASES. The rosy life of a lawyer is all in imagination. What appears to be ease and comfort is anxiety and dread of defeat. The very uncertainty of every suit makes all good lawyers anxious. No one can predict with certainty what twelve men may decide, and when young men seek this field as an easy pursuit, they fail to comprehend its true business. It is not a lucky profession, as some may hope or dream, while in college. The luck of law is the work and tact of the attorney; or the right side he happens to have in court. There are five hun- dred vexatious cases to one ideal jury trial. And yet men go on believing, year after year, that once admitted, the first client that opens the door will be the bearer of a brilliant effort that shall clear some helpless, pitiful soul, before a jury and an applauding public, who will ever after come with more and more just like it, and make their law practice a perfect paradise. True, a man may have an extra good case, once in a half dozen years, sometimes once in a score or more of years, and some may never reach a golden opportunity very many never do. The romance of law is fast disappearing ; juries are not very much deceived by heated arguments, except in rare instances. The public press, and public opinion, have much to do with jury ver- dicts. Here and there may be found a peculiar fraud or murder ease that awakens sympathy, but, like the Vanderpool cases in Michigan ; the Beecher case and the McFarland trial in New York, and Mary Harris at Washington, their verdict is well known long before the jury retires. It is in the air ; no one is surprised at dis- agreements when the public have already taken separate sides, and intelligent sentiment stands divided. Luck, without work, will not be attained ; honest work, well done, will in time gain place for a limited number, but the longer we live, the older the country grows, the more work is required in the legal profession Men are better educated, better skilled, and are making better time, just as trained trotting horses are improved by practice. We are learning that the world moves in all its varied departments social, moral and intellectual. The giants in the court-room to-day are not the witty jokers, the hair-splitters or the tricksters or attorney-generals of crime. The business of the law has passed all such artifices. It is serious, 224 MODERN JURY TRIALS. solid business. It means the making of wills (and breaking them), the management of estates, the drawing of partnership and corpor- ation contracts, the drafting of charters, the perfection of titles, the leasing and conveyance of lands, and occasionally a. contested case, in all of the courts, from lowest to highest. Medium oppor- tunities are many ; ideal opportunities are rare. It is the well- made plea, the well drawn paper, the careful counselor, that keeps his client free of suits, that is marching in the front of legal busi- ness, year by year. The widow's son is not claiming our protection. The business man is turning to the bar for safety and assistance. A change has come over the spirit and practice of the law equal to any advance in either of the sciences. Books have accumulated until to know their titles is beyond the ordinary memory of man. The time has come when the student of law is a student on business principles, when his word must be sacred, when his advice must be reliable, when his income will depend on his thoroughness in detail and a knowledge of his own times, and not on the worn-out eloquence of other ages repeated to juries. Skill, science and adaptation are the sterling qualities to be cultivated. Ideal cases may be created from common practice with rare application, skill and acumen, so that the art of the advocate will transform a common case to an ideal trial something nearer per- fection than ordinary practice. The beauty of the work is in the construction of the building, not in the material, the location or even the plan alone, but the uniform symmetry of all its plans and proportions, skillfully executed. WINNING CASES. Cases are seldom won by accident more frequently by hard work. The midnight oil, the well made brief, the candid and even tempered witnesses, the fairness of the attorney, carrying convic- tion to the minds of a jury, the art of putting things in their strongest light, all tell with a jury. A few instances may be instructive. Walker, a builder, sued for overwork done on a dwelling. The defendant showed receipts for nearly enough to balance her bill, "WINNING CASES. 226 and proved by strong oral evidence (by members of her family), that everything had been paid for as contracted, but not all of the work done according to the agreement. A builder was called to examine the work and make careful measurement. The result was: a house six inches too low, \vindows on weights instead of French windows on hinges, and many material defects of workmanship. The claim was $300. Item by item was carefully scrutinized ; a chimney too short a cornice defective all shown by builders and experts. But the climax was reached when the defendant herself, an illiterate woman, was called to testify. She knew nothing of books or architecture or the " pictures he made on paper," but she was sure plaintiff had made the house entirely contrary to his bar- gain, for the windows should reach clear to the floor, for she told Mr. Walker so, and told how, if they had a death in the family and wanted to take a coffin out on the porch, the French windows would open like a door and let it out without cramping around in a narrow hall and bruising the edges of the coffin all up ! This settled all with the jury, who said, " No cause of action," and the woman went away happy ! Governor Wisner was a witty man, and had a rare way of win- ning cases. He was retained for The People in an arson case at Pontiac, where the fire was started in a haystack. Nothing was traced of the guilty party save tracks in the snow, which fitted well to the defendant's heavy stogies. A great effort was made to show that the fire was from spontaneous combustion the act of the Almighty and could not defeat the insurance. Gov. Wisner said : " That all may be, gentlemen. It may be the act of the Almighty, but I never knew of His setting fire to a haystack and then walking three tiroes around it with a pair of stogy boots on, nailed in the heels /" He won his case. THB BIBLE IN COURT. The governor was great with Bible quotations; he would use them in common assumpsit trials. One day, in a suit for wages, he grew very much excited, and said, " That's the doctrine; that's the pure, biblical doctrine, gentlemen ! If a man will dance, he must pay the fiddler!" "Where will I find that?" said the oppo- site counsel. "What chapter in the Bible," added the judge, "do you refer to, Mr. Wisner?" The governor drew himself up with great dignity, and said: " Is it possible, your honor; is it possible! that you have been a judge for twenty years, and my brother a lawyer thirty years, and both in such utter ignorance of an old, familiar scripture quotation like that f " He won again. 15 226 MODERN JURY TRIALS. , TWO WITNESSES TO ONE. A suit was brought to recover for a quantity of apples, shipped from Davenport to Detroit. The plaintiff alone swore to his claim, and rested. Two witnesses appeared for the defense, and claimed the condition of the goods was none the best. The case looked doubtful, when the plaintiff's attorney told the following story, which dissolved the court, jury and spectators in a hearty laugh, and the plaintiff took judgment for the full value of his apples. The story was of a Hebrew merchant in New York, who dealt in furniture. On his way home, a down-town clerk stopped in front of a store door, and looked over a bedroom set worth eighty dollars, and remarked to the dealer that he admired the patterns and the curl of the walnut very much, and asked if eighty dollars was the lowest figure, which he found was the case. The clerk went home and mentioned the fact to his wife. On his return home at night, he found the bedroom set had been put up in his house in his absence. His wife, supposing it was a surprise for her, seemed delighted. But he denied buying it. It occurred to him, however, that he had better consult a lawyer, and learn his legal rights in the mat- ter. He remembered a newly admitted friend in a prominent office, and stated his case to him fully. The lawyer said: " You keep the goods, and leave the rest to me." Not long after a summons was served. This he took to his lit- tle lawyer, and asked what else was to be done, for it looked serious. " O, nothing," said the attorney; " leave it all to me; I'll look out for him." "But don't you want witnesses ?" "No; leave that to me." Trial day came and passed, and the clerk grew anxious. He called to hear the result of the suit, and expecting, of course, he was beaten. "How did it come out?" he inquired of the young Blackstone. "All right," said his counsel; "the furniture is yours." "But what have I to pay for it?" "Nothing!" "How can that be?" " O, easy enough. You see, he swore you bought the goods. I didn't say anything; that was all right enough. He had no wit- nesses but himself. I admitted the buying; but I put on two roit- SELECTING A JURY. 227 nesses who swore they saw the whole transaction, and knew you paid for the goods ! Of course I won. How can one man swear against two, anyway ? " SELECTING A JUKY. To exclude two jurymen, without cause, in civil suits, and thirty in murder cases and high crimes, is a work of more importance than any one act of the trial not even excepting the argument. Men are all human. They carry their prejudices to church, to mill and to court, as much as they carry their arms and hands with them. Some are hardened by unbelief in human nature; some are crippled, disordered and impatient; some are lifeless, and with all the milk of human kindness lacking in their nature; some are noble, generous, humane and open-hearted; some with reason, others are set and determined. Lawyers should prefer reasonable, merciful, enjoyable, liberal, intelligent jurymen, absolutely free from bias or distrust. It is generally known that ex-policemen, ex-sheriffs and ex-justices, with other like ex-officials, have imbibed a deep-seated prejudice for the plaintiffs whom they have served so long; while laboring men prefer their kind, and each nationality will in some degree stand together. So in criminal defenses and civil suits, these points should be always remembered. But, presuming the justices, policemen, sheriffs and deputies are excluded, and only the honest twelve remain, who of these are to be chosen ? Why, look at them ! Mark their candor, age, humor, intelligence, social standing, occupation, and let your eyes choose the most friendly, liberal and noble faces young or old, but bet- ter young than old better warm than cold faces; better builders than salesmen, better farmers than inventors, better good, liberal dealers than all. Avoid doctors, lawyers and pettifoggers. There is a little man, deformed, narrow, selfish, opinionated. Yonder is a captious, caustic, witty man, of stale jokes and street-corner arguments; and further on is a hard man, grim-faced and cold, grey look, white blood and glassy eyes. Rule them all off, if pos- sible. The world has used them ill. They will spread their misery for company sake. If you have been wise, you have looked ahead, read your directory, and now know the occupation of each. All 228 MODERN JURY TRIALS. this is easily done. Jurymen are usually well-known men, distin- guished for wit, humor, wealth or business dealings. Chronic hangers-on, unless clear-headed, can easily be excluded. I have known a sailor on a jury to acquit a sailor charged with crime. He was clear on the case. A wrestler once turned a suit for the plaintiff by showing a jury how it was done; he was one of them. In a robbery case, defendant gave evidence to show that he won the money at draw poker. A keen juryman, who understood the game, plied complainant with questions, and drew out that he liked poker went to defendant's room and played, and remarked, " I am beaten at my own game," and although the amount won was over eight hundred dollars in bills, a gold watch, revolver and a twenty- dollar gold piece, the poker-playing juryman convinced the rest that the exciting game, and not the offense charged, was a clear solution of the so-called robbery. Many a builder or expert has changed the whole twelve by knowing the case. Too much could not be said on a wise selection of jurors. CEOSS-EXAMINATION. The object of cross-examination is three-fold. First, to elicit more truth; second, to contradict and confuse; third, to lay a foun- dation for impeachment. If a witness has concealed a part of the truth, material to your case, and looks like one who would be fair, it is better to pursue the inquiry moderately at first, and if the wit- ness quibbles, the more rapidly, and if he angers, still more rap- idly, as one in anger will speak out openly, but usually he will tell more by kindness. To contradict a witness by his own mixed statements, a most rigid and rapid examination is required, usually asking for an answer the opposite of what you seem to desire, as the witness will invariably oppose the theory of the examiner; combativeness comes out on the witness stand. One who answers willingly, and one who answers fairly and candidly, had better both be left alone, One who higgles, gets excited and petulant has something he wants to shut out, will bear urging. " Do you swear on your oath that SELECTING A JURY. 229 ihis is the real language used?" will generally bring out the fact; but kindness, rather than rashness, is to be practiced. Suppose the witness to be old then by all means be courteous. Suppose it be a lady, observe the same rule. Suppose it to be a timid boy or girl some juryman has such a child, and if you offend he is offended; hesides "children and fools tell the truth," and you are looking for truth. Nature is the child's instructor. It is not likely that anyone will prolong an examination far beyond favorable answers, and still to leave off at the sharp point is always essential. Quit with a victory, is the best of all rules. Juries look for sharpness, but admire fairness. They like candor, and respect shrewdness. Their sympathy is strong for children and aged witnesses. See that you do not offend good taste and a high sense of honor and fair play. To impeach a witness a good foundation must be laid in time, as " Did you not (at a time and place named) tell William Allen that you owed this claim? Did you not say to Alfred Hall, on Bond street, July 4th, 1880, that you knew the defendant was not guilty; that Tie did not, but you knew who did do the shooting ?" " Did you tell Albert Miller, OH the eighteenth day of June, in his store on Crescent street, that there was a fraud in this transaction which could all be explained ?" " Have you not openly asserted yourself as an enemy to defendant during this trial, and expressed a hope that he would be defeated ?" " Did you not offer to shade your testimony in this case for money ? " Some strong, leading and exasperating questions may be asked of one you know can be impeached. Nothing should be handled with gloves where one is openly your enemy. Strike quick; hit hard, with weapons that sting, and juries will see that you mean what you say. But an attack on a witness without foundation is dan- gerous. And finally, more cases are lost by cross-examination than gained by it; so that in general one must depend upon his own evidence, and not upon an often mistaken notion that men, having stretched the truth to gain a point, will turn and contradict it, to please a law- yer. Witnesses who will tell a story without oath will swear to it, and adhere to it, and intensify it, by repeating it thi-ough a long cross-examination. This was never more clearly shown than in the exhaustive examination of Frank Moulton and Mr. Beecher, in the tedious Beecher-Tilton suit, at Brooklyn, in which the ablest cross- examiners failed to impeach either witness. 230 MODERN JURY TRIAL& THE LUCK OF LAW. To the student at law, and to many men outside of the profes- sion, an ideal lawyer is a great orator. In the days of Webster and Choate, or the earlier ages of history, such a character- was worshiped almost as a hero. But learning and the press, the power of print and the greater development of mankind, as a mass, have very much weakened the influence of eloquence. Within the last dozen years it has become more clearly apparent that evidence, and not eloquence, prevails; and he that has weighed most carefully the history of cases, for the last half century, will bear witness, that more than one case is decided by the overpower- ing sentiment of communities outside of either eloquence or evi- dence. To be a little more explicit, the science of success in the depart- ment of law is rapidly changing to business principles. An active, energetic, thorough and determined lawyer will succeed in his busi- ness, very largely in proportion to the capital he employs and the energy he expends in his calling. The term capital, in law practice, relates as much to character and cultivated judgment of men and things as to any other degree of legal attainment. Indeed, it is the business lawyer, with a com- mon sense view of general subjects, and not the stickler on trifles, that makes his mark in the courts and in the world. He who will trust cases to men, should study the character he confides in. In the majority of trials, twenty times as many questions of fact as of law will arise, and he that is most thorough in fact will be most likely to win. This, then, is the secret of the whole matter. Earnest attention to details, thorough arrangement of evidence, coolness and absence of anger and excitement, brevity and clearness of argument, honesty and fairness of statement, firmness and deci- sion of judgment, a reliance on reason, rather than the biased opinion of your over-zealous client, and a deliberate determination to do right. Eloquence should never be forgotten; there are subjects in them- selves eloquent. It is not in words, but in the man, and of the man and from the man, and in the occasion, that eloquence is born. It is never premeditated, but born of the theme and in the counsel. But eratory is studied, mastered and held in readiness for rare occasions. THE LUCK OF LAW. 231 As nothing should be done to discourage eloquent appeals, so nothing need be said to imbue attorneys with an over-value of, or reliance upon it to win in a lawsuit. The best advocates and ora- tors are well stocked with apt quotations in prose and verse, and add force to their reasons by happy thoughts of other men, ingeni- ously interwoven in argument. On great occasions and in great cases, the subject itself may furnish all the eloquence demanded. In a celebrated case in Indiana, a statesman was pitted against a country attorney, whom all expected to be beaten, if not annihil- ated. The case proceeded. The country boy was quiet, but clear and determined. He made his modest opening, and waited for the thunder of the orator ; but it was like a lion tamed by kind usage; the strength of the statesman lacked a forum for display. He forced his plea upon the jury and they shed tears. He urged his client's cause in all general ways, and just enough to heat his little opponent to a speaking point. The country boy stood up, stam- mered (purposely, I have since thought) and stumbled a little, but clearing his boat from the shore, he launched off and out ou f smoothly through the long conflicting proof, picking up every point, commenting on it in the keenest, closest style, building such a fire of the little sticks and floodwood gathered by the way that by the light of a blazing sun at mid-day, none could see the mur- derer and his victim plainer than by the boy's description of the tragic scene. The tragedy was recast, the fire and fervor of a boy's warm heart was blazing in every character, speaking from his eyes and hands and face. The jury forgot the statesman, forgot the defense, forgot all but the ghastly deed, held up in such an artful, unerring, vivid manner, that a shudder ran round and round the court-room, by every new discovery. He sank exhausted, and con- viction followed. It was a flash of lightning from a cloudless sky but the boy had remembered his case ; had dreamed it out, thought it over, studied it, kept his proof like a polished knife, and pushed it to the hearts of the jury unawares. It was another David with his little sling and five smooth stones, striking where no armor had been made. And this is the luck of law. The luck is work ; the luck is tact; the luck is ingenuity ; the luck is in bringing law to a court with wisdom, discretion, power and logic, tact and genius, well com- bined/ and bringing facts to a jury in the clearest, plainest simplest possible light, to convince and decide for your client's cause. It will not do to guess ; he must work ; I repeat it, he must work to win ! 282 MODERN JURY TRIAIA REACHING A JURY. The peculiar nature of many jury cases demands a diversity oi talent. The words that win with one man may shoot clear over another's head, but most men relish quaint, short stories, little illustrations things that impress the thought and rivet the atten- tion, plow and prepare the ground, and render the mind mellow and attentive. It is not the voice of a speaker, nor his grace and manner, nor his eloquence nor greatness, but his sagacity the things aptly put, the terse, crisp sayings, that cut in and clinch, that turn a jury. A German client once said : "I likes to hear dot man ; Oh ! he's such a purty talker ; but I don't know what he say !" No worse censure of a speech could be mentioned. Dull ness is even better, if remembered. An eminent advocate talks to one juror at a time, and never more than one ; talks on and on, until there is a real spring of emotion or reason or humor, and he has reached it, and passing gently to one who seems to listen well, he finally, one by one, has personally addressed the whole twelve, and won the twelve. Successful advocates seldom trifle with jurors or wrangle in their presence. They yield an unimportant point, and pass to deeper subjects, never covering the ear by too much husk. Mr. Charles O'Connor is of this class ; Mr. Evarts not quite so clear ; Mr. Beach, very eloquent, often grows rhetorical ; Senator Voorhees always so ; Col. Ingersoll is terse, pointed, apt and humorous sometimes pathetic ; Mr. Lincoln was quaint and used all the catch words, and common words of farmers and tradesmen, to whom he spoke. He constantly illustrated his thoughts by little incidents. Take out the stories, and his arguments would fail. It was the noble nature of a noble man one they knew believed in his case ; one they relied upon implicitly ; one who spoke as well for a poor car-driver as a railroad king. His plan never changed. It was universal. But PLACE, as well as method, must govern an advocate ; the picture in Harper's of a New York dandy, on his first entrance to Leadville, with silk hat, kid gloves, and soft Morocco leather hand- case, would be a poor picture of a frontier lawyer before a Texas or Dakota jury. Nothing could be surer of defeat than a case tried by such an advocate. REACHING A JURY. 233 The accomplished scholar is too fond of saying, "The jury system is a farce a humbug a relic of the past." It is the abuse of the system, and not the law, that gives it a bad name. From careful observation in a score or more central States, jury trials are generally fair representations of public sentiment. Who can expect twelve men to agree on what the public are equally divided upon, to begin with ? Shall jurors be censured for true independence ? or shall they be blocks and stones, and never vary in opinions ? I fear that too many adverse criticisms made by lit- tle thinkers on juries are in a narrow groove. The principle, as a principle, is right in all matters of personal liberty, or personal injury, but may be imperfect in commercial accounts. In cases of liberty, twelve men should unite or no conviction. And even if it should be that extra talent and eloquence are demanded, these special cases will come nearer the middle, or the end, of a lawyer's life. Great cases command great men. Young lawyers can hardly hope to step to the highest round of the ladder from the lowest. Time, patience, long-continued study and prac- tice will bring their reward, but not one lawyer in every hundred will reach the dream of greatness that his early fancy has created. In all this there is still hope for the diligent. By accident, one may be drawn into a legal duel unawares. He may settle in a new State, beyond the reach of counsel, where his effort is the sole dependence of an unfortunate client; he may be called suddenly to duty. The confusion of a great event will tax him to his utmost, and for this he should always be ready. The forms of pleading, rules of practice and means of information, and even the hints and examples from great men's experiences, will be an anchor for a storm, if demanded. To make this anchor, and fix these rules and maxims, speeches and sentiments well in the mind, is the work of patient, painstaking study; but to make the study interesting some of the ideal practice herein described may be useful and inspiring. No one can read an eloquent argument and be unmoved by it. The mind grows by what it feeds on. The sympathies expand, the heart warms, by kindling its tenderest impulses; the judgment is stronger by feeling that another thinks as we do; the picture of a possibility, the straining and lofty aspirations of the mind are like a new discovery, and the world grows broader to a well-learned man. Every new book digested is a new friend made. If the acquaint- ance extends to the greatest men of our times, in the greatest events of court practice, so much the better. Aiming at the high- est work will raise us over the lowest. Musicians listen long, half 234 MODERN JURY TRIAL8. entranced, at the melody of sweet sounds; painters admire the shading of a landscape, and builders examine with care the models of architects. While lawyers, too often, start cases at random and rely on genius to produce what by labor and study would be ren- dered almost certain. THE OTHER SIDE. In a trial at court a great deal of the unknown is developed. Careful preparation will do much to avoid surprise. But something will always remain shaded, till the light of evidence shines in and reflects the true colors of a too often unhappy disclosure. The ingenious thing to do is to induce your witnesses to state, in candor, what they generally avoid beforehand. In criminal defenses, the worst is seldom known before trial, and hence must be met on the instant, and may be managed indifferently well. The skill of counsel is put to its severest test to meet and master reverses, surprises and new features. As the mind grows and strengthens on familiar subjects, so new and unlocked for events are like enemies in ambush a dread to even the oldest veterans. Too little attention is paid to the other side the dark side. To excuse the wrong we seek to redress, the evil to be undone, we must study its magnitude and meet it with reasons. Lawyers of greatest fame are greatest in foresight. It is he who can tell us of the disease, and its remedy, that makes the good physician. Law suits are not debates, that may be continued by consent indefinitely. They are stern contests of right, and end too often at a single hearing. Well may Cicero say, " How humiliating it must be to an attorney, in the midst of a trial, to find he knows so little of his case that his client is hindered and not helped by his ser- vices.** It must be painful to meet abrupt reverses, to trust a broken reed, to attempt impeachment and fail, to attack character and lose, to sue in assault and be forced to pay expenses of a trial for lack of evidence, to study hard and long and only know half 01 his client's case. Mc-n who keep back part o f the truth for the sake of over-persuading their counsel that they are in the right, are justly punished if defeated. METHOD. 235 Nothing helps so much as a glance at the ranks of the enemy's lines, a measure of his forces, a skirmish just long enough to draw his fire, and then a volley to match it. To this end, if no other, wit- nesses should be cautioned, entreated, urged, forced to tell the whole truth openly, unreservedly to their counsel, for and against their interest, that the very worst may be known and provided for. Probably there never was a lawsuit lost where all of the facts were known to counsel. For with evidence and law against them, settlements could be reached, compromises arranged and costs avoided. When counsel and clients learn to look clear through their cases good and bad, light side and dark side, their side and the other side, then they will learn the science of success in jury trials. The books are full of law, but where can we find the facts if stubborn witnesses or careless suitors will insist upon telling only the bright side of their story, leaving the darkness as a rifle pit for the enemy's weapons. Of the best tried cases for the past twenty years, the Michigan Central Conspiracy furnishes a lasting example of industry, tact and actual ingenuity rewarded. METHOD. Every man should have a method of his own, and cling to it like a trade mark. To be shifting and uncertain in purposes and plans is almost as injurious as moving. But if one has taken the wrong course, that every day carries him further from his forte, an early change is desirable. He need not choose the style or practice of a bright, shining light to begin with. It will be sure to make him dizzy and bewildered. Builders commence on small houses. Sea- men and captains, conductors and generals are promoted from lower ranks for efficiency. As a rule, we can take our lessons from established teachers; astronomy from professors, science from standard authors, finance from statesmen, anatomy from surgeons, law from court decisions, and religious teaching from the churches. But we should not rest satisfied without a careful examination to verify the correctness of our authority. To assume that all young men can start on a level with Webster, Clay, Beach or Butler, and argue from their methods 236 MODERN JURY TRIALS is a great expectation. Young men should not dream of it, the very thought is disheartening. The name, the theme, the charac- ter, all have a place in the life of a lawyer. The young man that masters a justice practice in one year, a circuit the next, and tries an important supreme court case in five years, or makes a mark in high criminal practice in seven years, is an apt and prom- ising advocate. Many a young advocate has heard a great orator in some grand and powerful effort, that seems easy to equal; but, like the student who thought the proverbs of Solomon quite simple, and was told to write a few, suddenly changed his curious opinion. This look- ing at law from a mountain top is pure speculation. He will find the ideal case and " the widow's son " are rarely met with in prac- tice. It will be years of patient work and years of character build- ing before he is trusted in matters that require a speech like Burke, in the trial of Hastings, or Butler in the Johnson impeachment. The story in the school books of the fence builder, whose boy was discouraged at the long line of wall to build, when the father staked it off into twenty parts, each part for a day is an excellent model for a lawyer. The boy that had no hope of completing the whole in twenty days, was sure that one twentieth could be easily done in much less than one day. The work was completed and the reward obtained. It need not follow that a brilliant forenoon will bring out a long, dull afternoon lawyer. But it often follows that a plodding student reaches the bench, while' the flashy advocate is straining his lungs to convince an ignorant jury, that his client has a claim to their verdict. The fact is, men are rarely accorded a double qual- ity. We credit a man with the wisdom of a judge, who is still and conservative in his views; who is neither deep, nor sound, but looks wise and thoughtful. Silence often passes for wisdom, while open expressions are looked upon as lacking in soundness. And more than this, men may require the force of expression and give them- selves to deeper study, while having the beauty of language, and the gift of eloquence, they may rely on the one and spurn the other. Many great advocates have committed this error. Few men have lived who were wholly original. Pioneers in their art, like Dante, Homer, Milton and Michael Angelo, spending years on a single poem or painting men who lived centuries before the press, may claim such an honor. But business and professional men are willing to study the fine art of success as the best means of attaining it In the sense of teachers, they covet instruction from style and language and manner of others. Webster's sentences METHOD. 237 were full of sayings from Scott and Adams. Erskine's thoughts were modeled from Milton, and Bacon, and even Cicero was an ardent admirer of eloquence in others before he became a polished orator. The same old royal road to riches is gained by the frugality of a Franklin, to knowledge by the industry of a Greeley, to character by the purity of a Washington, to originality by extended compila- tions like Shakespeare, to greatness by the goodness of a Lincoln, and to perseverance by the determination of a Livingstone explor- ing on and on, with tired and broken limbs and bent body, to victory. All these are methods worth making into models. Others in other stations will follow, and have followed, that one may look at and admire to stimulate his courage and patience, and ripen his knowledge, and such study need never decrease his individuality. Machinists study rival inventions, and improve them. Advo- cates commit thoughts and use them, and add to their argument the weight of authority that always attaches to well quoted para- graphs. In all this it may be the aim of the student to make one more man just as original, and a little improvement on the model he learns from. This is seen in the steam engines, the sewing machines, or the mighty ironclads of our navies. It is not the object of reading to create a new character, but to round up the one we possess. To study a thousand speeches need not alter the style of counsel. But in assuming that good company and good reading will improve men, we admit that the more we fill ourselves with the wisdom of others the larger will be the fund of general information. It is too late to assume that men are born great in our profes- sion. The greatest lives deny it. The history of law and lawyers is dense with examples of plain, painstaking, studious advocates from Demosthenes down to our day, where men like Stephens, with just enough of earth to cover their immortality, shed a brilli- ancy of intellect in the halls of Congress. If it is looking to models that improves our light, like Edi- son is said to have done in his experiments, the improvement is none the less commendable. The highest notch cut by the daring youth over the father of his country, so luminous in history, has never been reached in the legal profession. The time has come for change and growth and improvement; the time will come when other Websters, Clays and Marsh alls, equipped with their wisdom, and added learning shall give us a new genius like Burr, or a saga- cious reasone? like Burke; new defenses, like Seward wrought out in the Freeman case, until what seems impossible will be realized. 238 MODERN JURY TRIALS. The art of the iges, with the improvement of science and applica- tion, with the dignity of wisdom, the grace of scholarship, and sincerity of intense application, will " win the proud trophy of deserved success." LAW OFFICE, STUDY AND TEIAL. From Judge 0. I. Walker's Ann Arbor University Address, 1869. PROFESSIONAL SUGGESTIONS. I have already told you that I believe in the commonplace, and I shall demonstrate my t'aith by making some very commonplace suggestions. You will doubtless soon be admitted to the practice of the profession for which you have been preparing, and sooner or later will open an office for the transaction of business. OFFICE. Although not as important as some other matters, I think the manner in which you keep your office is not unimportant. The lawyer should remember that " Order is heaven's first law," and order, perfect and complete, should reign in his office. His books and papers should be arranged so that there is a place for every- thing, and everything is to be found in its place. The time and worry saved to a man, by habits of system and order, can hardly be exaggerated. Neatness, too, should prevail. Nothing is more disgusting than the office of a lawyer where the furniture is covered with a heavy coat of dust, the floor covered with old papers, and the spittoons filthy and disgusting with the result of the use of tobacco. If you are so unfortunate as to be slaves either to the habit of smoking or chewing, establish it as a settled rule of your life, that you will do neither in your office. If you indulge in these habits there, then every visitor will feel also at liberty to indulge in the same filthy habits, and the result will be that your office will be offensive to more senses than one. Your furniture should be neat and comfortable, and how expensive, should entirely depend upon your business. If the business authorizes it, a carpeted room, good chairs, and neatly covered tables, aid in giving character and dignity to a lawyer's office. LAW OFFICE, STUDY AND TRIAL. 239 I earnestly warn you against a practice that more or less pre- vails, especially in country offices. A set of idle, clever fellows, fond of talking, smoking and chewing, frequently lounge into the office of a young lawyer, especially if he is a pleasant, agreeable companion, and take up his time with idle, and worse than idle, talk. The evil is a very great one. It leads to loose conversation, loose company, bad habits, and seriously interferes both with study and actual business. A client coming into an office to see a lawyer, and finding it occupied by idle gossips, will be very apt to turn upon his heels in utter disgust and seek professional advice from those who have no such surroundings. It is not entirely easy for a lawyer, especially if he loves approbation, to overcome this evil, great as it is, and yet it may and ought to be done. A young man, although known to have but little business, may always cour- teously yet decidedly excuse himself from having his time taken up with such guests. He may always say, "You must excuse me; I am occupied; I am engaged in study, or in business, and have no time to spare." In this way he will gain the respect of those whose society he thus declines, and will lose no friends worth keeping. HABITS OP STUDY. You will find, if you do not already realize the fact, that, with rare exceptions, the road to success in our profession is through hard work. An eminent English lawyer said: "If one would be a good lawyer, he must live like a hermit and work like a horse;" and there is truth in the saying. But this is not an evil, but rather a good. "Honest work, well done," is a source not only of profit and growth, but of genuine pleasure and happiness. No young man, just commencing practice, can expect to have his whole time occu- pied with business, and it is of vast importance that he at once adopt systematic habits of study and work, and thus prepare himself for business when it does come. To this end he should, at any cost, devote much time to a careful study of the principles of his pro- fession. Few things are more fatal to the prospects of a young lawyer than the habit of idling away his time in his office while waiting for business, or the desertion of his office in search of pleasure or good companionship. Unless when business calls else- where, be at your office at all proper hours, and always at work. I do not think that the best mode of professional study, by a practical lawyer, is that of reading text books in course. A better mode is to examine special topics and questions, and study them thoroughly. Let some one question be examined until you know MO MODERN JURY TRIALS. t'lat von have completely mastered it, that you comprehend the principle that underlies it, and if there be a conflict of authorities upon the subject, until you know the origin of that conflict, and the several theories upon which it is based. It is of the utmost import- ance that you get clear, certain and fixed opinions upon the topics that you thus examine. Every effort at forming such an opinion is an element of intellectual growth, and the consciousness of hav- ing arrived at a correct conclusion gives a needed self-confidence, while such a definite opinion is an ever-ready weapon in your pro- fessional armory. I would also advise you to master some particular branch of the law thoroughly. It is impossible for any one man to be a com- plete master of the whole law. The study of a lifetime would not enable him to accomplish this. One may have a general knowledge of the principles of the law in its different departments, and he may prepare upon any given case, in any one of these departments; but there is no lawyer, however learned, that will not frankly admit that there are men equally thorough in all branches of practice. THB TBIAJ, ITSELF. The first step in the actual trial of a case, after the empaneling of the jury, is the opening of the cause to the court and jury. This is a matter, the importance of which is very greatly overlooked. It should not be an argument, but it should be, in all important cases, a statement of the facts and points of law upon which you rely in the case. It should be simple, clear, yet full; candid, yet strong. Very few persons, whose attention has not been called to the matter, comprehend the force that there is in a clear, succinct, orderly narrative of facts. There is a logical power about such a narrative that exceeds often the mere force of ingenious reasoning. It is the natural logic of the facts. And you will do well to culti- vate with care this power of clear, simple, forcible narrative. The next step in order is the examination of witnesses. And this affords a very ample field for the exhibition of the tact, skill, shrewdness and legal ability of counsel a field quite too little cul- tivated. Neither books nor general rules can aid very much in making a good examining counsel It requires good sense, good temper, an intimate knowledge of human nature, quick discern- ment, wise discrimination, a familiarity with the rules of evidence, and very thorough knowledge of the case under consideration. One can hardly adopt any general rule as to the manner of examining witnesses, arising from the different character of wit- LAW OFFICE, STUDY AND TRIAL. 241 nesses. Some witnesses communicate readily and clearly what they know. From some you can hardly draw a fact, except by a process akin to torture. Some are garrulous to excess, others are taciturn in the extreme. The one, in answering your questions, will volunteer much that is entirely irrelevant, or what is worse, quite injurious, while the other will hardly answer at all. Some are sensitive, bashful, shamefaced; others bold to insolence. Some are positive " Without the means of knowing right from wrong, . They're always decisive, clear and strong." Some are so fearful of being wrong, that they are never right, and so qualify the truth that it loses all its power. In dealing with this variety of character, counsel must be cool, wary, judicious, adapting his manner to the necessities of his position. Above all things, let counsel avoid the manner of examination entitled brow- beating. There are instances where counsel are fully justified in examining a witness with great sharpness and severity, but those cases are exceptional and very rare. As a rule, counsel who are courteous and bland in their manner of examination, who are gen- tlemen themselves and treat witnesses as gentlemen, are far more successful than those who are wanting in these qualities. Let me specially impress upon you the importance of knowing where to stop, and of leaving off when you get done. Ask no questions without an object. One of the most common errors com- mitted is in the extended, pointless cross-examination of witnesses. The right of a cross-examination is of inestimable importance, and in certain cases the exercise of this power requires the best skill of the ablest lawyers. But cross-examination, as often conducted, not only does not aid the cross-examiner, but injures his cause* strengthens the testimony of the witness, and wearies and annoys the court and the jury. If the witness is honest, cross-examination usually refreshes his mind, strengthens his recollection, and makes him more positive in his statement of facts than he was in his examination in chief. And if dishonest, and skillful, unless you hold the threads of detection in your own hand, cross-examination is dangerous. In the practical suggestions that I have made, I have drawn freely from the fruits of a personal experience of more than a quarter of a century of not unsuccessful practice in the profession in which you are engaged, or to which you aspire. That profes- sion I studied in the midst of many discouragements, arising from deficiencies in early culture, from poverty and painful embarrass- ment. Its practice I commenced in the midst of entire strangers, 242 MODERN JURY TRIALS. without a library or means of support, and without any one to lend me a helping hand. A retrospect of my own life enables me, with- out the aid of " mystical lore," to foresee the future of many a member of this class; and as I cast that horoscope, I see no flowery paths of ease gleaming through the vista of coming years. The honors of the profession are neither easily won, nor lightly worn. Earnest struggle, and noble endeavor can alone enable one to sur- mount the " hills o'er hills, and alps o'er alps," that rise in the path- way of professional life. But this struggle and this endeavor brings its own reward in the conscious increase of power, and the fuller development of the faculties with which God has endowed us. Prof. WALKEB, for many years law lecturer, and eminent as an advocate in the prime of accurate practice, is safe authority on these subjects. Other reliable counsel have approved the Twenty-one Rules," and kindred topics treated in this department. MAY STEPHENS INSURANCE CASE. Tried at Detroit, March, 1875. May Stephens lived in Ypsilanti, and was insured in five com- panies, aggregating $20,000. The Michigan Mutual Life, of Detroit, contested their $5,000 policy on the ground of fraud. Deceased had only paid twenty-four dollars in all, was poor, and gave her notes for premiums. She was drowned in a cistern, leaving two small children ages under fourteen. A guardian was appointed, and suit brought in the Superior Court of Detroit, which was crowded full as the trial came on. Judge Longyear left the United States Court to listen, and was invited to sit with Judge Cochrane of the Superior Court. The bar crowded in en masse, and witnesses and spectators packed the court room for many days. The eloquence of Mr. Lothrop, the caustic logic of Mr. Maynard and the keen, incisive points of Mr. Pond were never used with bet- ter force. Every one was at his best from beginning to end of the trial. But the climax came with the closing address of Mr. Anthony McReynolds, of Ann Arbor, then fully seventy years of age, a large, tall man, of the old school of lawyers, n >t often heard MAY STEPHENS INSURANCE CASE. 243 in court rooms of late. A peculiar Scotch accent, a rugged, west- ern style of speech, but extremely convincing and, at the close, wonderfully pathetic and eloquent. The theory of the defense was (1), that Mrs. Stephens insured heavily, intending to commit suicide; (2) that she was too poor to pay the premiums, and must have known it; (3) she had secret diseases; (4) the company was so honorable, it would never refuse to settle an honest claim without litigation. Each theory was ably elaborated. But the purpose of this report is to give the quaint and peculiar eloquence of Mr. McReynolds and the effect of homely, rugged words on modern juries. He said: "You would think that Mr. Lothrop's honorable* directors would rather give the amount of the plaintiff's policy than suffer the dis- grace of resisting a claim ! As citizens we concede them all thia high and exalted position, far above and beyond all cavil and quib- bling over honest debts? " But my brother forgets those great words, standing out in his- tory ever since the days of England's brilliant jurist, Lord Coke: ' Corporations have no souls ; no eyes to look on justice / no ears to hear the voice of witnesses ; no hearts to feel for suffering human- ity /' An honest citizen may be a director in a bad corporation, where the majority rules, and he loses his identity and becomes a soulless citizen. He has the double character one a man, a tender, loving man, and one a hard-hearted corporator. Let me explain: In my native land (most of you know where that is, gentlemen), one may be a duke and a bishop at the same time. It happened a friend was both, and a man that would make the earth tremble with his dreadful oaths. He was a notorious gambler, attended fights and horse races, got drunk, and did all that such men often do, but quite likely to disgrace his church. A brother took him to do about it. But the bishop replied, 'You don't understand this thing; you know I am duke of the realm and bishop of the church. Well, when I swear I swear as a duke, and when I go to fights I go as a duke, when I gamble I gamble as a duke, certainly not as a bishop ! When I pray I pray as a bishop.' ' But, pardon me,' said his good brother, ' if I illustrate how in the great day of judg- ment, when the devil shall come to claim his own (the duke in all his deviltry! ), then, pray tell, what in the devil will become of the bishop?' and the duke subsided. When the devil shall come for these soulless corporations and their honorable officers, where in the devil will be the good citizens? " But she was poor ! How could that work a fraud on the com- 244 MODERN JURY TRIALS. pany ? The policy had its own conditions, was its own receipt was made at the urgent request of an anxious agent. On failure to meet the premium, she was deprived of its benefits. Talk about honest citizens paying honest debts ! Talk about fraud committed'on this poor, afflicted company, with its force of shrewd, sharp men; talk about the imposition of a loathsome disease ! Why, gentlemen, what are the records on that fact? Strange her nearest neighbors never knew it. Strange the doctors never knew it. Here is their story in this application: Sound, healthy, five feet six, robust, skin clear, pulse 72, waist 36, no insanity, palpitation, erect, sound in every limb. Yet rotten with disease, they say ! " Oh, what a monstrous absurdity ! Experts chosen for learning, skill and experience, baffled by a poor, weak widow, who is seek- ing to impose upon the world by a fraud. She had a little money. She was coaxed to invest it for her child her bright-eyed boy, for her little girl, fast budding into womanhood. She did. She went too far. She was over-persuaded. These men, pleading in her ear, telling the stories of profits, singing their siren songs, that, like the mermaids in the legends of old, which lured the returning seamen from their well-filled boats to tie up the ships and follow the sweet songs until far away from home, in the mountains and forests, they were lost, to die alone in hunger and delirium. It is said that ever afterwards travelers took warning, as they passed, and put wax in their ears to shut out the music of the allurers as they passed. This may be a lesson in our day, for only wax could shut out the pleading appeals to join this coaxing company. * * * Oh, what a picture is here to behold! Two little orphans battling with a giant corporation! A money power, backed by the bond- holders and directors. How it rouses our impulses to witness the contest ! " That mother, the object of this bereavement, is gone. Her lips are dumb; her voice his hushed low in the silent grave. No whis- per can come back to say: 'I slipped. I fell. I was misguided. I did all; I risked all for you ! for you, my children, my own ! For you, my little ones.' " She has gone. She has whispered the last good night and gone I The secrets of her death are locked up till the judgment day. There they are sacred; there they will remain secure. ******** "Oh ! I can see her now; it is early twilight, it is winter, the snow is falling fast and slippery; whitening the little plank walk to the cistern. She has company, she hurries down the walk, catching up a pail, leaving the hook hanging over the curbing, "MAY STEPHENS INSURANCE CASE. 245 bending low she slips, falls, the water covers over her, no one hears, she is drowned ! It is an accident; and I almost hear her say, as she looks down to you, to this upright judge, this honest jury: 'Gentlemen, you may cheat my children, if you will, but spare them the burden of dishonor; the money will be a poor pit- tance at the most to that priceless character that my innocent chil- dren should inherit.' We plead for the money that they deserve, we plead for the character that they own, we plead for the justice that their evidence demands; make their lives happy and their mother's memory sweet sweet as the day she bade them good- night, the night before the night of death, little dreaming of the sudden end, little dreaming of the scandal they should me^t, little dreaming she should be held up in horror to frighten a joj'y from duty; held up in shame and diseased to blot out the fair i ame she had earned for her children ! You will not stain these li .tie ones, gentlemen; you will not pay a claim that way; you will not, cancel a just debt by a mean insinuation of wrong. Why, gentlemen, they would have you think that this woman loved her little ones so much that she dared the pains of hell, and drowned herself, th#t they might be made rich, though orphaned ! No crown of glory she held in prospect; no garland of the blessed to be wreathed upon her brow ! only a sordid fraud, a leap in the dark oblivion of the great hereafter, to get gain ! * * * " Gentlemen, my work is almost done; poorly as it is, I must trust to you to do a better work. And my little clients (here the speaker laid one hand on each of the client's shoulders and amid the hushed silence of rapt attention, said), my little clients, may God bless you ! I have done my best to make your names an honor to our state. But, O! how poor and weak my words have been. And you, gentlemen, even now, by your silence and your interest in this case; methinks I hear you say, stop ! delay not longer ! let us begin this work of justice; stop ! that we may rebuke this cruel company; stop ! that we may restore these orphans to their own; to that pure character that they will love to honor, a character as pure as they knew her on that last and long good-night; stop ! that you may wipe away all tears from these orphaned eyes, and plant the sweet rose of a mother's love in their bright young lives to grow, bloom and bless the world for their living in it; stop ! that we may right this wrong at once. O God ! put it into the hearts of this jury to see the truth; to vindicate a mother's name and a mother's love to her helpless children. " O God ! remove the mist from this case, reveal the truth to these jurors, let them see their duty and give them strength to do 246 MODERN JURY TRIALS. right, and do it remembering that some day yes, an early day to most of them, when they shall be called home, to leave, it may be,, dependent children and a sacred memory of a good name that of future juries theirs may expect the same just finding that they have found for us a verdict and a vindication ! Jury found for $5,300, and the other three cases were duly paid. The case was an ideal jury trial. I have reported last part from memory. I have never witnessed more effective eloquence. J. W. D. FOSTEK-HATFIELD TRIAL. Held at Indianapolis, January, 187S, The convenient plea of insanity that cleared so many celebrated criminals failed to acquit in Foster-Hatfield case. The defense was unusually able and eloquent. The jury were deeply moved. The dramatic surroundings were not wanting; but wife and children, tears and appeals, were in vain. Attention is called to the skillful reply of Gen. Brown to the final appeal for sympathy one of the best replies ever uttered: " Take this widow and these orphaned children, and standing by the grave of Calvin Hatfield, unmarked by stone or monument, and in view of the great sorrow that this defendant has brought into the world, there write your verdict !" The speech is so brief that it is given in full, hoping it will repay a careful reading. HON. THOMAS M. BROWN J 8 ADDRESS. Gentlemen of the Jury : After the able, eloquent and convinc- ing argument of my colleague, Mr. Guffin, I feel that there is but little left to say in presenting the case on the part of the Common- wealth. He has presented it so fully, so ably, that I feel embar- rassed in reviewing the ground of discussion. He has invited your attention to every material point in this important and solemn con- troversy, and has completely exhausted every topic within the orbit of this discussion, and has left nothing to me but to repeat what he has already said so well. I have no hope that I shall be able to acquit myself as creditably as he has done, but with your FOSTER-HATFIELD TRIAL. 247 indulgence I will discharge this unpleasant but responsible duty as best I can. To this indictment, charging the defendant with the willful and deliberate murder of Calvin Hatfield, his counsel set up a two-fold defense, and these defenses are inconsistent and antagonistic. It is said, first, that when this life was taken that when the accused, on the twenty-seventh of November, shot Calvin Hatfield to death he was insane; that the act was the result of an insane impulse; that it was the act of an irresponsible and irrational being. Again it is assumed that the act was one of self-defense; that it was done under the well-founded apprehension that it was necessary to the preservation of the defendant's life, or to save him from serious bodily harm. These defenses do not stand well together. The presence of the one excludes the other. Either of them, if supported by the evi- dence, is complete in itself, and there can be no conviction if either be true. But there is no legal chemistry by which you can mix half insanity and half self-defense together and thus compound a com- plete answer to this charge. If the defendant, at the time of this most horrible tragedy, was in fact of unsound mind, or if it became necessary for him to take the life of the deceased to save his own, or to protect his person from serious or grievous harm, then he is not guilty of the crime returned against him in the indictment. But if the act was one of self-defense if it was the act of one who had reason to apprehend that his own life was in peril, and that it was necessary to slay his adversary to insure his own safety, then the transaction was a rational one, and the actor must have been sane. The act of self- defense is the result of correct thought. The defendant, it is said by this defense, saw the danger; realized that it was imminent; that unless he acted, and acted promptly, serious consequences would ensue. It is said that the means employed to save himself were suited to the great emergency. If these things be true, they are wholly and utterly repugnant to the defense of insanity. The act of self-defense supposes the presence of the reasoning powers and of their employment. The defendant's counsel in one sentence pronounce him a maniac, and in the next they insist that in this work of death he acted tht? part of a reasoning and rational man; that he saw the emergency, knew its extent, and adopted the proper measures to avert the im- pending danger. I repeat, gentlemen, that these defenses are inconsistent and antagonistic. First, then, to this defense of insanity. Upon this subject I shall 248 MODERN JURY TRIALS. probably have much to say, not that it is particularly involved in this cause, not that there is any evidence supporting this theory of the defense that deserves serious consideration or protracted dis- cussion, but for the graver reason that we have arrived at a time in the administration of justice, in the enforcement of the statutes against crime in this country, when it is the duty of every citizen who respects justice, has a regard for the safety of society and desires to see the law enforced, to carefully consider this oft-abused defense, this common highway of escape for the most vicious and abandoned criminals in the land. If a crime is committed that shocks and startles humanity one at the mention of which strong and brave men turn pale; one so shocking, so atrocious that it appears the work of a monster rather than a man; when the law has been outraged and set at defiance, and when public peace and security cry aloud for an example it is in such a case when no other defense can be devised that insanity is made available. The bolder and bloodier the murder the better and the more easy the escape. On the slightest provo- cation and most flimsy pretext, a throat is deliberately cut or a head blown off, and the assassin is suddenly discovered to have acted under an "insane impulse" that overwhelmed his "will power," and a jury of intelligent but credulous gentlemen so write it in the verdict. A quarrelsome, worthless, drunken vagabond, one who has long been a terror to his neighbors, who involves himself in bar-room broils and street fights, fills himself with whisky to fortify his courage, and then maliciously kills his man. No defense is thought possible, but " homicidal mania," or some other mental infirmity, is conjured up; a jury acquits, and public justice is outraged. How easy it is to raise a doubt as to mental condition. Go back along the pathway of the man's life, show his every eccentricity, every foible, every impracticable twist in his conduct, the foolish things he has done when sober, the ridiculous things when drunk; give the number of convulsions he may have had when a babe, depict his extravagant expressions when in the delirium of a fever, and his hallucinations when sobering up out of a debauch group all these together, and base an opinion upon them solely, the proof appears complete, and a murderer goes acquit. Gentlemen, I am true to the history of the times when I say that these defenses are in a very large majority of instances manufac- tured to order gotten up for the case and that juries have made themselves ridiculous and brought the administration of the law POSTER-HATFIELD TRIAL. 249 into contempt, and reproach upon our tribunals of justice, by allow- ing the bloodiest and guiltiest in the land to escape punishment. Look, if you please, to the many extraordinary cases of murder of recent date, in which this defense has been made available, and can you name a single person in whose behalf it has been made, who has ever been confined because he was dangerous to society, or even put under treatment for the disease ? No, gentlemen, these men, with crimson hands, walk abroad at noon day. Shall such things be? You must answer courts are powerless unless juries do their duty. I am not without authority for these statements. This outrage upon the civilization of the age is not only the topic of general con- versation, but it has been mentioned by the Supreme Court of the State. In the case of Bradley v. The State, Mr. Justice Ray says: "We are well aware that the doctrine of insanity has been employed by counsel to cover the most execrable crimes; that juries have disgraced themselves and degraded their office in apply- ing it to the sanest of criminals. In special cases they will not dis- tinguish between insanity and moral depravity. If there ever were a time when the truth might be withheld, the temptation would be strong upon us now. * * * Indeed, it must be evident that the cases where the shield of insanity protects the guilty, are those where the circumstances appeal so strongly to the sympathy of the jury that they would probably acquit without any pretext; where the feelings control the judgment and the moral obligation of their oath, and fit the triers, if not the tried, for an inquest of insanity." With these observations, demanded as I believe by the exigen- cies of the times, I will proceed to discuss such portions of the evi- dence as may be thought to bear upon this branch of the case. Mr. Mattler calls your attention to the words of the act defining the crime of murder in the first degree. " If any person of sound mind," says the law, "shall purposely kill, etc." It is quite true, there can be no guilt no accountability in the absence of under- standing; and there can be no punishment unless the accused was in legal contemplation, of sound mind when the act was commit- ted. But you must bear in mind that the law presumes sanity and legal accountability, and this presumption continues until it is attacked by evidence tending to show a contrary condition. The burden of this proof is upon the defendant. Before proceeding further, it is proper to dispose of one branch of the defendant's case, and I shall do so in a word. Drunkenness is not insanity. One who commits a crime when voluntarily intox 250 MODERN JURY TRIALS. icated is not excused, but held to the fullest measure of accounts- bility. Such is and always has been the law. To hold otherwise, in this day of bar-rooms and saloons, would be monstrous. Drunk- enness in no sense mitigates crime purposely and intentionally com- mitted. The learned gentlemen who have so ably conducted thia defense assume, however, that drunkenness is only voluntary, in a legal sense, when the person gets into that condition for the purpose of preparing himself for the commission of an act. This position has the single merit of novelty; it is fortified by no reason, and supported by no authority. That it is not the law, I am certai^ and I will not insult the intelligence of the court by giving it fur- ther attention. Gentlemen, the court will doubtless fully instruct you on this point. What is insanity ? What kind and what measure of mental inca- pacity unsoundness of mind will excuse the killing of a human being? The state is content with the law as stated by the counsel for the defense. I will read the rules laid down in the authorities cited by the gentlemen, and by these expositions of the law let this case, as to this question, be determined. All the Supreme Court has said in the case of Stevens v. The State and Bradley v. The State may be summed up in a single sentence: " Has the defendant in a criminal case the power to distinguish right from wrong and the mental power to adhere to the right and avoid the wrong ? " First, insanity may be said to directly affect the reasoning pow- ers of the mind, and secondly, the will power. If one knows the difference between right and wrong; if he is conscious that the act was one which he ought not to have done, and at the time had con- trol of his will and judgment, then, say the authorities cited, such a one will be accountable for the act. It is said one may reason correctly, and yet if he lacks the power to control his conduct he is of unsound mind. This is indeed a most liberal, and I believe a most dangerous rule. But, gentlemen, I am willing that you shall regard this as the law applicable to this case. We must bear in mind, as we proceed in this investigation, that insanity and moral depravity are not the same. How often men under the influence of powerful and controlling passion commit crimes of violence. It might be said in such case that there was a " want of power to control the conduct," but it would be monstrous to hold one excused under circumstances like these. Passion, however strong, terrible or emotional, is not insanity. It would destroy government almost to allow anger to excuse from criminal respon- sibility. Anger has more frequently dyed its hand in human gore than hatred or revenge. It has nerved the arm and direo- FO8TER-HATFIELD TRIAL. 251 ted the blow in many of the most heartless and brutal murders that have ever disgraced the world. Again, one may be said to have lost his "power of will" when he yields to temptation. The thief who takes the property that does not belong to him yields to his baser nature his depraved and vicious instincts get the supremacy of his moral powers. How many have struggled long and gallantly, until the great tempta- tion that lay in their pathway overpowered them and they fell, and oh, how sadly. Such cases may excite our sympathy, but yet there is sin, and shame, and crime in the fall. I desire to be distinctly understood that when I speak of the want or the absence of the will power as an unsoundness of mind, I refer to cases where this faculty of the human intellect is absent, as the result of disease, or to cases where it never had an existence. There may be an occasional case where one per- ^ectly sane a moment before and in a moment after the commission of murder, but who just at the particular instant, by an uncontroll- able impulse, lost the power to control his actions, but I think these cases rare so rare that the hanging of a few of such maniacs would make such bloody impulses more rare in the future. Regarding these impulsive cases as base and shameful frauds, I am still bound to admit that when the functions of the mind are so impaired that the power to control the act is wanting, there can be no crime. The defense put this defendant afloat on the great sea of human life without rudder or compass; at the mercy of every wave; blown out of his course by every gale; powerless to avoid the breakers, and liable at any moment to be stranded on the rocks. In the light of the evidence, I protest that such was not the case. I maintain that this murder was deliberately planned and consummated. It was cold-blooded and fiendish it is true, but it was the act of a man incited by a long-nurtured and malignant pur- pose. I believe his counsel do not insist that this deed was the result of a mania an insane delusion. Such cases sometimes occur, but they are always well defined and easy of proof. Take the case of Hadfield, which Erskine, by his eloquent defense, has made immortal. In that case the accused was a loyal subject of the king, had been a gallant soldier under the proud flag of Tra- falgar, and was ever ready to resent the slightest insult offered to his majesty. In all respects he appeared rational, except upon a single subject. He thought himself a Messiah that he had a great mission to perform in the world; that to complete this work he must die; that he must be crucified. He sought death at the hands of the people or the executioner. Until this was done he thought 252 MODERN JURY TRIALS. his divine mission not performed. Reasoning accurately, he knew that to compass the death of the king was treason; that the punish- ment for treason was death. To bring this death upon himself he shot at his sovereign in a public theater. This act was plainly and unmistakably the result of his insane hallucination. He had no enmity toward the king, nor did he desire his death. Hadfield was acquitted, and it was right; the intelligent and the good every- where approved the verdict. This is not such a case. Here there was no delusion. The deceased did not kill his friend, but his enemy. He went out after one with whom he had quarreled, toward whom he bore malice, and having found him he killed him. He prepared himself for the^bloody work, and did it in pur- suance of a long entertained and deliberately formed purpose. Gentlemen, these are the actions of a sane man, and this homicide is a crime, and that crime is murder. If this defendant was subject to illusions or hallucinations and I deny that he was still he is guilty of murder. He may have been possessed of any number of delusions, yet if the killing of Hat- field was clearly not the result of any of them, it was murder, will- ful, deliberate, cold-blooded murder. This was no bloody mistake. I will now, gentlemen, proceed to the discussion of the facts in evidence upon which the defendant relies to establish insanity. Perhaps when I say that counsel rely upon insanity as a defense, I state their theory of the case too broadly; they only hope to create a reasonable doubt on this point, and thus defeat the ends of public justice. Here Gen. Browne took each of the circumstances in the evi- dence, upon which the defense relied to establish unsoundness of mind. His discussion of this part of the case was elaborate and exhaustive. He concluded this branch of the discussion by the noon adjournment. He then proceeded: Gentlemen, the next question in this case is that of self-defense. If it had not been referred to by my brother Mattler, and discussed by him with a seeming seriousness, I would not have regarded it my duty to call your attention to it at all. This, if it exists, is a real and manly defense. I hope the time may never come when this great law shall be impaired or blotted out. I admit the law to be all the gentleman claims for it It is said to be nature's great first law that it is felt in the first throb of the human heart; that it is ingrained into our very being; that it is a part of the "woof and web" of our lives. I admit it all. The impress of POSTER-HATFIELD TRIAL. 253 divinity is on this law and it rises higher, infinitely higher, than human statutes. If this is a case of self-defense on the part of the accused, let him go acquit. I admonish you that it is your duty to acquit him, if in killing Calvin Hatlield he did no more than defend his own person. "Without troubling you with authorities, I say to you if the accused slew Hatfield under a reasonable apprehension that his own life was in danger, or that he was in peril and likely to suffer grave or serious bodily injury, he had the right to do so, and he is guilty of no crime. Bloody and terrible as it has been to poor Hatfield, his widowed wife and helpless children, the act is excusable, and no law has been violated. I have, however, failed to discover any such defense in the evidence. There is no place for it in this case. It is a flimsy, shadowless pretense, scarcely worthy serious consideration. Strike from the record all of this case except what occurred at the house at the time of the murder, and there is nothing upon which to hang a doubt. The only tangible fact to which the gentlemen refer in support of this hypothesis is that immediately after Hatfield was killed a knife was found on the floor near his person. It was unopened. How it came there is not entirely clear, but that it was in the hands of the deceased I challenge the defense to show by the proofs. It had not been used and was not prepared for use, for it was unopened. How it came there I believe to be explained by the fact that it was in his side coat pocket, and that it dropped out as he fell, after being shot, to the floor. Mrs. Hatfield swears that she saw it in his pocket after he came into the house, and I fully confide in her truthfulness. The only witnesses who speak of having seen the knife are Mrs. Owens and the defendant's sister Emma, and neither of them pretend that it was open. Emma saw it near his feet and unquestionably where it fell while Mrs. Owens first discov- ered it some five or six feet from the body. How come it to be removed ? I can't answer the question. I only know that the knife was there, unopened and unused. In addition to this, the wife and mother-in-law the only persons who witnessed the trag- edy both swear that the deceased at no time had this knife in his hands. About this there can be no question. How will this evi- dence be met ? The counsel will ask you to imagine that the knife was there for use. But, gentlemen, let me admonish you that you are trying this case by the evidence. By the light of the evidence you must say whether or not this knife was in the hands of the deceased. Mr. HAXNA (interrupting) I ask you, General, to state how this 254 MODERN JURY TRIALS. knife fell out of his pocket, when it was found in the middle room? I ask you to state this as a matter of fairness, as I shall probably allude to this circumstance. Gen. BEOWXB It Js impossible for every feature in a trans- action like this to be fully explained. This occurrence produced extraordinary excitement and tumult. A multitude of persons were soon attracted to the scene of this crime. There was hurry- ing to and fro, and that this knife should have changed positions within an hour is not strange. But how came it in the middle room ? The deceased stood in the middle room when he was shot; and when he lay there dead his feet were still in the door-way of the middle room, and the knife was first seen near his feet. This explains the matter, if it needs explanation. But, gentlemen, it is insisted that Mrs. Hatfield was not present when this murder was committed. Why not present ? Because Mrs. Owens admitted to Foster that she did not notice her pres- ence at the time the shot was fired. Mrs. Hatfield swears she was there. That Mrs. Owens did not see her is explained by the fact that she stood to the rear and right of that old lady. Under the circumstances you are not astonished that she was not observed by this brave old 'ady, when, with an infant on one arm, she was with the other defending, with all the vigor of her old life, her son- in-law from the fiendish attack of his murderer. After the gun had been snatched from her hands, and she dragged to the floor by the defendant, she still watches intently the result. In an instant afterward the deed is done, and Hatfield, with his head blown lit- erally from his shoulders, falls lifeless at her feet. Are you to dis- credit the evidence of Mrs. Hatfield, simply because under these most trying and exciting circumstances Mrs. O \vens failed to observe her ? But Mrs. Owens does place Mrs. Hatfield there. On the instant the gun was fired his heart-broken wife cried out in her frenzy: " Has he killed him ?" "Yes," was the terrible response, " he has shot the whole top of his head off." She was there then at the very instant of the murder. But it is clear that she was present from the other facts in the case. That she was there when the defendant and deceased came to the house is abundantly established. When did she leave? How did she return ? Yes, gentlemen, she was there. Although her mother and herself were examined separately thoroughly, exhaustively, their evidence is in accord to the minutest particular. Mrs. Hatfield and Mrs. Owens were both present, and both swear FOSTER-HATFIELD TRIAL. 255 clearly and positively that the deceased neither used or sought to use a knife on this occasion. But, gentlemen, I say to you, in the presence of, and subject to the censure of this learned court, in the presence of these learned gentlemen of the profession, and in the presence of the able coun- sel who so zealously conduct this defense, Calvin Hatfield had the right to have his knife there; to have it open, to have it in his hand, and with it to have taken the life of James Foster. And had he done this, he would have stood in the presence of this court, and in the presence of the civilized world guiltless of any crime. It is true the law has a tender regard for human life it is sacred in the eye of the law, and it is your duty as peaceable and law-abiding men, and it is my duty to retreat if you or I can do so in safety rather than take upon our hands the responsibility of the blood of a human being, the fearful responsibility of sending a human soul unprepared into the presence of Almighty God. But I insist upon it, gentlemen, that when any man, drunk or sober, enters my house with loaded gun, capped and cocked, ready to take my life, there is no rule of law or ethics that requires me to fly from the presence of such danger. To retreat in such a case but increases the danger. To such a man you should stand toe to toe and eye to eye, and take advantage of every motion. You need not wait to be shot, out under these circumstances you may rightfully kill your assailant. This would be self-defense. It was thus that Calvin Hatfield was situated on the twenty-seventh of November. If he was the defendant and Foster had been slain, how soon you would return a verdict of not guilty. The deceased simply stood there, in the presence of this defendant, fearing to fly and unable to defend himself. He was killed and, my God, was not this murder deliberate, atrocious, monstrous murder? Whether the deceased was armed with a knife or unarmed whether the knife was open or closed whether in his pocket, on the floor, or in his hand, the act of the defendant in slaying him was murder. If this homicide was committed, as I insist it was, and as I shall presently show, in pursuance to a deliberately formed design, the crime of which the accused is guilty, is murder in the first degree. The gentlemen have read but little law. They have, however, called your atten- tion to a single authority. It is briefly this: If one engages in a fight, and in good faith seeks to withdraw from the struggle, and does all that is reasonably in his power to do so, but is pressed by his adversary and is put in imminent peril, he may then slay his antagonist and be guiltless. This is good law, and I am content with it. But it has no application here. Gentlemen tell UF that 256 MODERN JURY TRIALS. the struggle commenced at the door of the middle and ended at the door of the back room that the defendant retreated across one room to the distance of sixteen feet. Retreated from whom? From an unarmed and defenseless man 1 What a retreat was that ? Was this such a backing out as showed an honest purpose to with- draw from the fight ? But there was no fight. Hatfield had not struck, nor had he attempted to strike a blow. If he was pursued by an unarmed man, why does he use the muzzle instead of the butt of the gun ? But, it is asked, how do the parties cross the room, and why ? The problem is easy of solution. The defendant, in jerking his gun from Mrs. Owens, makes it necessary for the deceased to close with him in order to save his life. It is his only hope. He rushes toward him with his arms open the defendant retreats until he gets the mere length of his gun in advance and then fires. This is the evidence, and these are the facts. He puts his gun within a foot of Hatfield's face, when he is standing or coming toward him with open hands, and blows his head from his shoulders. In the presence of these uncontradicted and unmistak- able facts, this defendant, by his counsel, says that he acted in self- defense. To what desperate straits the gentlemen are driven ! To what flimsy pretexts and weak excuses they are put ! I hope you understand my position as to the extent the knife figures in this case. I assume, first, that it was not present, in the hands of the deceased, at this murder; but, if you doubt this, I confidently assert that he had the right to have it there, and that it was his duty to have used it. Why parley over this question ? Who sought the quarrel? Who provoked the difficulty? Who made threats ? Who had murder in his heart, and went out in search of a victim ? Was it poor dead Hatfield ? From his grave he sends out his protest and puts in his denial. Do you believe that Hatfield intended to injure the defendant? Do you even think that the defendant thought that he would? No. The defense would have you believe that Hatfield intended to murder, and that he went into the presence of his Maker with the deep damnation upon his soul. You do not, you dare not believe it, gentlemen. I will now dismiss this branch of the discussion with this single observation. The court has permitted the defendant to put in evidence his own statements as to what occurred at the time of the homicide. To his mother and sister he said he had commit- ted the act in defense of his own person, that the deceased had pursued him three squares with the knife before reaching the house, and that after arriving there he was still pressed by the deceased, until he was literally driven to the wall, and that, when FOSTER-HATFIELD TRIAL. 257 he could fly no farther, he turned and shot his assailant. Are you to believe what he said when under such strong inducements to speak falsely ? Under ordinary circumstances this evidence would have been excluded. These statements were only admitted, gen- tlemen, to show his mental condition at the time. You can not consider them as true, nor can you apply them to any other branch of this case than that to explain which they were admitted. The court will so instruct you. Gentlemen, these statements of the defendant are glaringly false and absurd. They are contradicted by all the evidence, as I shall conclusively demonstrate as I proceed with this argument. These statements disappear like mist before the morning sun in the pres- ence of the truth. John Young, the little boy introduced by the defense, told you that he saw the parties together on West street, two squares from the house; that when the defendant was attempt- iug to use his gun, Hatfield took out his knife; that the defendant, before he had opened it, knocked it from his hands; that Hatfield picked up the knife and returned it to his pocket unopened, and that they then passed on together toward the house. The boy fol- lowed close behind them and saw no knife and no pursuit. Mr. Ramsey, who witnessed the same transaction, corroborates the boy. He saw the defendant attempting to shoot the deceased; heard him swearing most profanely that he would do so, but saw no knife. He says that the deceased, after attempting to wrest the gun from the defendant's hands, stooped down and gathered up a handful of sand, but immediately threw it down. The parties then started toward the house. They walked side by side there was no flying no pursuit. Mr. Ramsey is the older and more intelligent wit- ness, and you can safely rely upon what he says. The boy Young was mistaken about the knife. The defendant's statements as to what occurred at the house are also lies. Mrs. Owens and Mrs. Hatfield flatly contradict him on every point. Would you expect a murderer to tell the truth? Will you confide in the statements of a man whose hands are yet wet in human gore statements made, too, to save his life ? The gentlemen who conduct this defense would have you believe that the defendant, under all the circumstances detailed by the witnesses, having provoked the quarrel, having brought on the rencontre, if any there was, stands guiltless in the sight, of God and man. Gentlemen, I have now done with this question of self-defense. I come now by your permission to present the case, in chief, as it is understood by the state. So far, I have been discussing the 17 258 MODERN JURY TRIALS. defendant's case. In the further pursuit of truth, I may hav occasion, now and then, to refer again to these questions of self- defense and insanity. I hope I shall not tire your patience. I know it is not as laborious to hear as it is to talk in this crowded court-room and this heated and unhealthy atmosphere. Tour responsibilities are much greater than my own. You feel this, I know. You hold in your hands the balances in which the peace and security of human society are placed upon one side, and a human life on the other. You have a just appreciation of your solemn obligations, I know, and I feel assured that you will hear me patiently to the end. I will trouble you with no further apology, but proceed as rapidly and briefly as I can to a conclusion. Gentlemen, I maintain that the defendant is guilty, if guilty at all, of murder in the first degree. I shall so discuss the case. It is that or nothing. I will discuss it because I believe it is that or nothing. I will discuss it because I am asking no compromise in this case. I dis- cuss it because I want a conviction in the case, if the defendant ought to be convicted. On the other hand, I want you to acquit him, if there ought to be an acquittal. There is no compromise in this case. It is your duty to hew to the line, let the chips fall where they may. It is your duty to find the truth under the law and the evidence, and when you find it to put that truth into your verdict. Gentlemen, it is murder in the first degree. I will not tediously elaborate upon this subject. I will read to you the statute, the law of the State, that rests upon us all. You accepted it when you took upon yourselves the rights and obligations of citizenship. And you have added to that obligation the oath you have taken as jurors in this case to enforce it. The law says that "if any person of sound mind shall purposely, and with premeditated malice, kill any human being, he shall be guilty of murder in the first degree." That is the statutory definition of the crime. It is easily understood. I call your attention to it now. When I pass from it I shall not recur to it again. I have heretofore discussed sound- ness of mind. What does " purposely " mean ? It means inten- tionally, designedly. This is its meaning in the ordinary accepta- tion, and it means no more in the statute. What does "malici- ously" mean ? To constitute the crime, the killing must not only be done purposely, but also maliciously. It is a word frequently used by us all. It means simply, in this connection, intense hatred in the heart of the murderer towards his victim. It is evidenced, says a law writer, by a depraved or malignant spirit. It is eihib- FOSTER-HATFIELD TRIAL. 259 ited, when a wrong doer acts wholly regardless of social duty. It is evidenced by a rooted design to do mischief. It means, in com- mon parlance revenge. In legal contemplation its presence is always presumed in the perpetration of an unlawful act. If you should step upon the street and wantonly take the life of a passer- by, the presumption would be that it was done maliciously. My brother Guffin says malice is of two kinds. I would prefer saying that the evidence by which it is established is two-fold. When the proof shows that the defendant has made threats which have been executed in the commission of the crime with which he is charged when he has made preparation for its commission as by lying in wait, or procuring a gun and seeking his foe, then the law says the malice is express, because the threats and the preparation are the expression of it. Where the same crime is committed, but the proof does not show this antecedent expression of malice, malice is implied. If I should go into your stable and cut the throat of your horse, even without motive, it would be a malicious act. If malice is implied in my so taking the life of a dumb brute, how much more reasonably and strongly is malice presumed when the life of a human being is taken. I shall not take up your time in explanation of the word. You know what malice means. It presumedly exists when the act is intentionally done, and is serious and dangerous in its character. Where there is no known cause, you are to presume malice in the killing of a human being. Threats are not necessary to make it murder in the first degree. It is needless to refine upon this subject. Where there has been time for thought, deliberate thought, and that time has been employed in deliberation of the purpose to do the unlawful act, and the act is by the mind resolved upon and then committed, the act is done with premeditation, purposely, and maliciously. And this is so whether the intention to do the act was formed a minute, or a year, before the commission of it. There is no restriction, or fixed limitation as to time in this regard. It is as much murder if, in meeting you in the street, I then determine to kill you and do there kill you, as if I had nursed that purpose in my heart for years. Just as much murder in the first degree as if I had thereto- fore resolved upon your death, and with "patient search and vigil long " had hunted and followed you through the land and at last killed you. It is not necessary that I should intend especially to kill you to make it deliberate murder. The highwayman who stands by the roadside awaiting the coming of the first traveler, to demand his money, be he whom he may, if, on his coming, in an attempt to rob him he kill him, he is guilty of deliberate, premedi 260 MODERN JURY TRIALS tated murder. Let us look at the facts in this case to see whether it is a case of murder, of murder in the first degree, murder pur- posely and maliciously committed committed with deliberation and premeditation. The proof is clear and unmistakable. There can be no escape from it. It is nothing less. To write anything else in your verdict in the light of the evidence would be at the expense of truth it would be a legal lie. What is the uncontro- verted evidence in this case? There were frequent quarrels between the defendant and the deceased. The motive springs here. I am indifferent whether or not you consider the utterances of the accused eighteen months before the homicide. The evi- dence is overwhelming, even if the State were confined to the fatal 27th day of November. I care not to go beyond that. I care not to go into the petty quarrels and threats indulged in prior thereto by and between Foster and Hatfield. If, under the same circum- stances, Foster had been killed by Hatfield, the crime of Hatfield would have been the same as that for which James Foster stands on trial to-day murder in the first degree. These threats of Hatfield stand in no legal relation to the case. If there is any evidence looking toward self-defense, you may use these threats, in that connection. That defense, however, being wholly unsupported, the evidence of Hatfield's threats should be withdrawn from your consideration. Tom Reeves has been attacked impeached. We don't rely upon his testimony. So far as I am concerned, it will not be alluded to in this argument. I do not ask you to lay the weight of a feather on this defendant because of what Reeves has sworn to during the progress of this trial. He has neither weakened or strengthened this prosecution. So far as I have the power to do BO, I withdraw him from this case. Gentlemen, we now come to the morning of the twenty-seventh of November, 1871. Calvin Hatfield was on that morning alive, and his hopes and aspirations were probably as bright as yours or mine. He was yet a young man his life mission scarce half per- formed. He was a husband and a father, and had five helpless children committed to his keeping. This was his status at nine o'clock on that morning. A few hours afterwards he lay bleeding and lifeless his wife a widow, his children orphans, and they, poor and friendless, left to meet the trying realities of life without a father's or a husband's care or counsel. You are now to consider "The deep damnation of his taking off." FOSTER-HATFIELD TRIAL. 261 The intention of the defendant on that morning was probably to commit a double murder. The first we hear of him on that morn- ing he is threatening both Reeves and the deceased. It is certain that when he flourished his knife in the presence of Mrs. Owens, and before he procured and loaded his gun, his threats were more particularly directed toward Tom Reeves, but it was otherwise when he returned with his gun. Then Hatfield, and he only, was the subject of conversation. Mr. Mattler falls into an error when he tells you that the defendant, on that morning before coming up into the city, made no threats of violence toward the person of the deceased. He is mistaken, as you will observe when I call your attention to the evidence of Mrs. Hatfield. Gen. Brown here read from the phonographer's notes of the evi- dence: "When he came back with the gun," says Mrs. Hatfield, "he said he had loaded it with slugs of iron. He then asked me" Oh, the heartless depravity of the man how it chills me to repeat it "he asked me, 'Sally, can you raise five little children alone / I said 'No, Jim, I can't.'" Think of his unfeeling, heartless reply: "Yes, by G d, you can, Sally; it will be hard for you, but you can do it." I ask you to let these words sink deep into your very souls. I would put them there with emphasis, because they show the spirit that animated the subsequent conduct of this defendant. "Can you take care of five children, Sally?" "No, Jim," responded that agonized mother, and wife. " No, Jim, I can't." "Yes, you could, but it would go G d d m hard." What did he mean ? Toward whom this malice ? In what direc- tion went out this spirit of revenge, and who was to be the victim of this depraved and malignant man ? Mrs. Owens relates the same facts, and puts in the mouth of the accused the same lan- guage. Were these threats directed at Reeves ? What did he mean in putting this cold-blooded question to Mrs. Hatfield ? Was it not murder, and the murder, too, that he committed in three hours afterward? In the further conversation at this time he tells this woman that he had killed her husband, and would bury him like a gentleman. Does not this explain the true intent and mean- ing of what he said before? But as we pass forward in the evi- dence all doubts clear away. The defendant and Mrs. Hatfield start up to the city in search of deceased, and after going some half mile they meet Mrs. Foster. Here these women try to prevail on the accused to return. Failing in this, they use argument and entreaty to induce him to give up the gun. He obstinately refuses, saying, " I am going to kill myself a man with it." Kill who ? For whom was he searching, and whom did he subsequently mnr- 262 MODERN JURY TRIALS. der? We next find him in Schwigo's saloon, engaged in putting a stranger through the infantry drill, according to Hardee. The man who stood behind the bar tells you he did it correctly. The gentlemen on the other side put it in proof that at t>his time he removed the cap from the gun, and threw it on the floor. This was done at the saloon-keeper's request, as he had discovered the gun to be loaded. This cap has been preserved with great care, and is brought here by the witness. I confess myself at a loss to divine what the defense expect to make out of this fact. I thank them for having put this circumstance in evidence, for it supports our theory of premeditation, as I hope to show you, and is consis- tent with all the other facts in evidence. Was there a cap on the gun at the time of the homicide? That the gun was discharged is overwhelming evidence that there was. Mrs. Hatfield swears that she saw one on the tube a moment before the shooting. This being so, I ask the learned gentlemen, and I put the question to the jury, why was another cap put on the gun after leaving the saloon ? Was the defendant intending to leave the city ? Cer- tainly not. Was it necessary to have a gun charged and capped at nood-day in the heart almost of a populous city like this ? Was anybody to be killed ? Yes, gentlemen, he " was going to kill himself a man," and that man was Calvin Hatfield. This little circumstance of the substitution of that cap is an important one, and tends most strongly to show the presence of the premeditation and purpose to kill. It also shows thought, purpose and prepara- tion. This destroys the theory that the defendant was a " mere machine " an irresponsible being, for here was the act of a sane planning mind one adapting measures to the end sought to be attained. I repeat the question, gentlemen, why did the defendant renew the cap on the gun ? His subsequent conversation and con- duct unmistakably answer the question. He leaves the saloon in company with the deceased and Mr. Owens. The deceased was before Owenij in the middle, and the defendant in the rear, when they started homeward. The defendant soon passed to the front, the gun on his arm, saying to Owens as he passed, " I have the dead wood on him." No name was mentioned in connection with this threat, but who, gentlemen, was referred to ? You know the name too well to make it necessary that I should repeat it. Next in the order of events are the occurrences on West street. Here the deceased is threatened here the defendant makes an attempt on his life, and here is his first effort, on that day, " to kill himself a man." It is at this point that the boy Young says that he said, " Halfield, I will let you live until you get to the house, and then FOSTER-HA.TFIELD TRIAL. 263 ['11 kill yon." Strange coincidence ! Hatfield was killed at the house, and immediately after his arrival there. Gentlemen, I have already discussed somewhat in detail the transaction at the house. You can not doubt that Mrs. Owens states what occurred there truthfully. Never was a witness more worthy of credit. She may be old, and poor, and ignorant, but she is honest and appreciates the obligations of an oath. She feels the awful responsibilities of this occasion. And seldom has a wit- ness stood in relation to a case as she does to this. I will not say that she has no feeling in the case, but I can say that she has no feeling that could move her from the line of truth. Her sym- pathies must go out toward the accused as well as his victim; she testifies in the presence of the grave of one murdered son-in-law, and in the presence of another who stands under the shadow of prison walls or the gallows. Then, gentlemen, so far this case is briefly this: On the morning of the twenty-seventh of November, the defendant procures and loads a gun loads it " with slugs of iron." He avows his deter- mination to kill the deceased, goes in search of him, finds him, and after several unsuccessful attempts, kills him. He kills him with- out cause without excuse, and in cold blood. This is the State's case. Will you say, gentlemen, with these facts before you, that the homicide was not committed with purpose, malice and deliber ation ? It is your duty, gentlemen, to look this case squarely and sternly in the face. Look at it as men who feel the necessity for the administration of simple justice. Look at it as men desiring to see the law enforced, that there may be peace, order and secu- rity in the land. Look at it with the view of administering the law in its spirit, and so write your condemnation of this monstrous crime in your verdict, that in the future our wives and little ones may lie down at night and sleep peacefully and quietly, without apprehension or alarm. Gentlemen, the time has come when the law must be more inflexibly administered, or the bludgeon and bowie knife will usurp the place of the law. The time was, and I confess that I have lately feared its return, when he was most secure who possessed the strongest muscle and the most malignant spirit. Another step in the history of that fatal day, and we are done. Immediately upon killing Hatfield, the defendant attempted to scape. Only the guilty " fly when none pursue." But it is insisted by the defense that it was a most bungling and unskillful attempt at flight. You would not expect one having the conscious- 264 MODERN JURY TRIALS ness of such deep sin upon his soul to be otherwise than cowardly and confused. He not only attempted to escape from the scene of his crime, but another strong and incontrovertible evidence of his guilt grows out of the fact that he deliberately frames a lie for the purpose of his defense. He tells a broad, palpable falsehood that he might allay the fears of his mother, and make it avail him if he should be captured and brought to trial. To his mother and sister he set up a most excellent defense, and a most rational one, but it was utterly false. He varies the story a little, however, upon leaving his mother, for he exhibits a knife to Miss Chesney, and says, " I've just killed a man, and ought to have done it long ago." To Mrs. Hasselberry he said, " I expect I've killed a man ; if I haven't, Pll go back and finish the job." He makes similar remarks to Clay Rice. These several conversations all occur within a few moments after the tragedy. I need notice these statements no further. The defendant is next found in a saloon on the Bluff Road, in the southern part of the city. It was here, you remember, that he was found by the men in whose wagon he was subsequently cap- tured. When Myers came into the saloon, he remarks " that he had just heard that a man by the name of Foster has killed his brother-in-law." The defendant at once answers, "My name is Foster, and I have just heard of the circumstance; but the man that killed his brother-in-law is of the name of Roster, not Foster." If this defendant was an irrational man, this, at least, was a most rational attempt to escape detection. But something has been said about his conduct when brought into the presence of the deceased at the undertaker's. It is assumed that his stoical indifference there, under such solemn cir- cumstances, is proof of some sort of mental derangement. Gentlemen, are you to say that one who could deliberately mur- der a friend, a relative, one at whose board he had sat under whose roof he had found shelter one who had stood by him in health and who administered to him when sick, could not also look complacently and coolly on his bloody work after it was accom- plished ? Is it to be said that the defendant is not accountable because his crime is more revolting and atrocious than those usually committed ? Will you set a premium on butchery by acquitting because the work is most wicked in its conception and cruel and fiendish in its execution ? Would the gentleman have you so write it in your verdict ? The whole conduct of the accused after the commission of this great crime, has been that of a sane man. His attempt to escape, FOSTER-HATFIELD TRIAL. 265 his ringing the change on the name at the saloon, his exhibition of his cut hand, and his attempt to get the driver to remember it so he could swear to it, his denial of his name to the police at the time of his arrest, and his conversations with the jailor, are all the clearest possible proofs of his entire sanity. He may have been, to sortie extent, under the influence of liquor, but it won't do to acquit him simply because he was drunk. This would be indeed a dangerous precedent in this country of saloons. I say it would be most dangerous, for most of the crimes of the day the murders, arsons, and robberies all over the land, are com- mitted by persons more or less in a state of intoxication. The solemn question is upon you was this homicide the act of a responsible being, was it done without legal excuse, and was it done with purpose, malice and deliberation ? If you are able to answer this question in the affirmative, your duty is clear the crime is murder in the first degree, and no other crime whatever. You have so written it in your statutes, and these statutes you have solemnly sworn to observe. Your duty is a clear one, and I feel confident that you have the courage to perform it. Unless you do so, gentlemen, honestly and faithfully unless you fully perform the solemn obligation you took upon yourselves at the beginning of this trial, you are not worthy the respect and confidence of honest men. Courts, and indeed governments, are powerless in the punishment of the guJlty unless juries fearlessly do their duty. A faithless and imperfect administration saps the foundations of society, and excites the people to anarchy and misrule. We need not go far to find the illustration. In our own proud Indiana, with its schools, bibles and churches, within the last year or two a number of victims have been immolated by the demon mob. Administer the law, purify the fountains of justice, protect society from the vicious, and society will feel safe and good order will reign within our borders. Let me appeal to you to do your whole duty in this case, even though your verdict "may touch the heart of a mother or a sister." Punishment must be certain, that society may be safe. It is some- times necessary to make an example, and if there ever was such a time it is upon us now. The learned counsel attempt to excite your sympathy for thia unfortunate man. I do not complain of this. Think as kindly as you may of the erring it is natural, it is right. But, gentlemen, even in the matter of sympathy, there is another side to this case. Take this widow and these orphaned children, and go to that lonely kirkyard, and standing by the grave of Calvin Hatfield, unmarked 2 66 MODERN JURY TRIALS. by stone or monument, and in view of the great sorrow that thit defendant has brought into the world, write your verdict. When you have done this, the demands of public justice will be satisfied and a broken lawfully vindicated. Found guilty and hung. THE TRIAL OF UNDERWOOD. Before JUDGE SWIFT, at Detroit, May, 1874. The salient points of this romantic trial will appear in every par- agraph, and need no introduction. It developed the peculiar fact that jealousy is insanity, only in a lesser degree. The argument of counsel is a graphic and highly interesting manner of comparing a modern, commonplace character to the melancholy Dane of Shakespeare's masterpiece. ' Underwood and Hamlet were very unlike, but the love mania of one may have equaled the clouded reason of the other. Underwood was plain, of weak mental developments, not of sufficient interest personally to adorn a chap- ter, but his remarkable career, his singular tragedy, and the ingenious defense, make a novel and entertaining history of some- thing original on emotional insanity. It will be read with a relish by those who would know "the hidden mystery of a mind diseased." The popular plea of emo- tional insanity, in its rapid development from the trials of Cole, Sickles, Harris, McFarland, received additional force by a supple- mental cause, of jealousy, as developed in this peculiar case. A more concisely framed defense, and plausible showing of cause and effect, has seldom been recorded. The line of argument shows not only jealousy as a frequent cause, but that it leads a disordered mind to attack its objects most admired, and not in anger or revenge, but like the ancient Roman fathers, to protect the loved object from an imagined harm. The development is unique; the reasons cogent and convincing. Science and Shakespeare are aptly cited. The climax of the orator's effort is in the meeting and embrace of the treasured letter and the murderous knife, where they slip into the pocket side by iut if so, where did all this blood go ? It would have saturated TRIAL OF VANDERPOOL. 305 the carpet for a much larger space than was cut out, and would have run through the floor and down into the basement, but we find none there, and only the little piece hanging down like a pea from the floor. Three minutes is a long time for blood to flow, and spurt and jet; it would have saturated everything around there. I tell you Herbert Field was never murdered in that bank. He may have been foully murdered, and that, too, by George Vander- pool, but never in that bank. To explain the blood on the wall, and on the legs of the desk is very easy, when we consider that they used a great deal of red ink, and how common a thing it is when we dip the pen into the ink bottle to throw off a drop before writing. If that body was carried out of the front door and down those stairs, why was not blood found in front of the bank, as well as down the stairs ? I am glad, for Dr. Wilcox's reputation, that the witness Blanchard gave the explanation of that blood on the stairs that he did, but it is a strong commentary on human weakness, that, in the two trials before this, in which there was great legal skill and accumen, this fact which explains all this blood was not brought out. In regard to the blood on the stairs leading down to the river, the witness Blanchard gives us an explanation for that, by saying that he carried a basket of fish up those stairs on Tuesday and saw blood and serum drip from his bucket, and you remember that no blood was seen there till Wednesday. But the counsel on the other side were not satisfied with this, and asked the witness if he had ever carried up any fish there before, when he said that he had carrried up some on the previous Saturday. ***** THE FOUE " WITNESS TEEE8 " WHICH SHOULD POINT TO THE " COB- NEE POST " OP GUILT, DO NOT AGEEE. * * * * If you go into the boundless forest and seek to find the line that the government has surveyed between two sections of land, you seek to find the " corner post," knowing that it is the main fact upon which you rely. But this "corner post," this " main fact," you can only find by following the " witness trees,'* and directions, courses and distance they bear from the corner post. These " witness trees " all point to the " corner post," the main fact. But if any one of them do not so point, you are in doubt there is something wrong; and the farther you go in the search, following their guidance, the more uncertain you are of the true line. Vanderpool, Secor, Dr. Wilcox, and the " strange boatman," are the four witness trees, each bearing more or less of the blazed evidences of guilt. But do they each and all point in the same 20 306 MODERN JURY TRIALS. direction ? Charles Secor found a human hair upon that bloody newspaper, red spots upon the carpet so small he had to pin them for future reference. No other witness saw these evidences of guilt. He was early at that bank, as well as Vanderpool, that Monday morning, with his horse and buggy. It was five o'clock. Where had he been ? At this time no suspicion was aroused. It was not even known that Field had disappeared. Secor lived but two blocks from the bank; why was he there with his horse and buggy at that hour? With what microscopic vision did he find that single human hair, those minute blood spots ? That hair, those spots, that early ride, that mission to the bank, are all " marks " of guilt, but they do not point toward the prisoner. Dr. Wilcox roomed over the bank. He was also up very early that Monday morning, and saw Vanderpool at the bank, as did Secor. He went down the stairs by the side of the bank, that morning, and avoided the blood spots by walking on the other side. He went toward the river, perhaps, like Lady Macbeth, looking at his hand, and crying as he went, " Out, damned spot ! Out, I say 1 " He slept in his office that Sunday night. On the Wednesday following he was under the bank digging for blood (?); but when others came to dig, hunting for the signs of that murder, he hurries to a widow's house, near by, and asks the privilege of sawing her wood; said he wished to be out of the way of those people; asked her if she supposed Field was murdered or had run away; and then, when conscience made him coward through and through, begged piteously to be let out by her back door, and so escaped to the woods. His confusion, his early rising that Mon- day morning, his fear of those innocent blood spots on the stairs, his terror at the presence of his fellow beings upder the bank digging, sent him, like Cain, a vagabond upon the face of the earth. All these things are "marks" of guilt, but they do not point toward the prisoner. The " mysterious boatman," who was he ? A man was seen that Sunday night, crouching in a " white boat," as he paddled down that little river toward the lake ? He avoided other boats, he was seen of witnesses; but, like grim Charon, silently he paddled on. Something seemed to be following the boat as though attached to it in the water. Was he ferrying some dead body down the river of death? Do you know? Ten days later, twelve miles off the mouth of that river, another strange boatman (or the same), was seen without rudder, oars or sail famished, gaunt and hungry in another "white boat" (or the same). A schooner seeks to aid him. The voice of its captain calls to him in kindness. He makes TRIAL OF VANDERPOOL. 307 no reply. He is taken aboard, he intentionally capsizes the white boat, and when the schooner bands were bidden to save it, he speaks for the first time, "let the boat go to h 1, I have had enough of it." He eats ravenously, refuses to be landed in the state of Michigan; denies the possession of monej, but is seen counting a large roll of bills stealthily. He sleeps, eats, lives alone, like some wild beast, avoiding human beings. He lands at Detroit, and instantly departs for Canada, first inquiring his way to that land of refuge. Who was he? I do not know! You do not know! But there is an unbroken line of guilt (or mystery) running from that little river at Manistee out into the lake, around the great state of Michigan, through the Straits of Mackinaw, down through lakes Huron, St. Clair, and the Detroit, and so circling this great peninsula, it is lost in Canada. That is a line of guilt, strange as an old tale, mysterious as any mythology, but certain, nevertheless but it does not touch the prisoner. For the fourth witness tree, you have the prisoner, Vanderpool. There are evidences of guilt which point to him. There are strange, almost unaccountable, circumstances which seem to envelop him. But, just because circumstances equally strange and mysterious surround these other three persons, you cannot say which, if either, is guilty. If either of them was on trial, you would have the same difficulty. Where, then, is the "corner post" of guilt? These four wit- ness trees point in four different directions. You cannot focus their indications upon this prisoner. ******* He then gave a scathing description of Conover, Secor, Ingram, Bullis and others who had been foremost in prosecuting and perse- cuting this prisoner, after which he concluded as follows: And, now, gentlemen, I leave this case, so far as I am concerned, with you; my responsibility has been great, yours will be greater. I cannot lift the curtain that for two long years has hidden this mystery; perhaps it will never be lifted, until that day when all things are made plain, and the puzzles of time are all solved. Whether Herbert Field is alive or dead, whether George Vander- pool killed him or not, I do not know, but four weeks of patient investigation have failed to show either a death or murder. It is not for me to ask of you mercy, instead of justice; for here as I believe, justice will be a verdict which shall give back a husband to his wife, now for two years more than widowed. No, we do not ask you to " strain the quality of mercy;" but while I hold up 308 MODERN JURY TRIALS. to you the law and evidence in this case, and ask by the very "letter of the bond " an acquittal, I also point you to this wife and ask you not to bring upon her young life the shadow of an uncal- culated eclipse. I tell you there was mystery, not death, in that little bank on that September day. Two men entered it, but no human eye that we can find saw either leave it. Here is one of them, but where the other is, or how he left it, I know not. Jus- tice demands an acquittal at your hands. What I have said is of little moment, but what you do will last forever. Hon. THOMAS B. CHURCH, closing for the People, said: Gentlemen of the jury The prisoner at the bar is charged with a crime which is not only contrary to the laws of man, but to the great canon of the Almighty, "Thou shalt not kill." Counsel may inveigh against witnesses as much as they choose ; theorize, mystify, and speculate as they will, to the utmost of their ability, but they cannot get away from the cardinal fact that stands out as clear as day that Herbert Field is dead, and that he died by violence. We live in a singular state of things ; if there is anything about a crime that is unusually horrible, strange or extraordinary, it seems the public taste is vitiated, and the criminal comes to the bar with all the appliances for excusing or covering up the heinousness of his offense, and lionizing the offender. Have we not somthing of this here? Why should the case of mis criminal be examined with more tenderness, with less candor or scrutiny than that of any other? * * * * In the early stages of the cause, we talked of the disappearance of Herbert Field ; we occasionally ventured upon the phrase " alleged murder ; " that is all over now. The truth is no longer to be disguised or obscured. Field was murdered ; he was thrust out of his young and blooming life, and was not slain by casualty ; he was murdered murdered murdered ! And where ? And by whom? Sometimes the place and the criminal expose each other. Let us first consider the question, Who killed him? We will take all the circumstances that have since come to light, and will now, a posteriori, as the logicians say, discover the murderer. We are no longer groping ; we have that in our hands which will shed its light on the mystery, and will, by inevitable inference, reveal the criminal. * * * * Then, was there a forgery committed after his death and foi what purpose and by whom ? There was a series of entries on the books amounting, as I read them, to $3,360. That, as I under- stand it, is the way in which he left these books when he went out TRIAL OF VANDERPOOL. 309 into the darkness of death. Are they correct ? There is one thing to show, and that is the little book which Hall testified was kept by his friend Field. It has been admitted as evidence, and it con- tains contemporaneous entries of drawing and deposit. And the whole foots up just $3,360.22, with which he has credited himself on that little book. Now, part is taken out in drafts, and part in currency. When Dunham comes to examine, he finds $2,295 in an envelope, and then, from across the lake comes the word that $1,060.22 lies deposited in Chicago, to his account. This makes $3,355, and leaves a difference of $5, which might easily be the pocket money that Mr. Field had taken from his own funds. * * * This gold Avas in Field's pocket late on Saturday night. It was presumably hi his pocket on Sunday morning when he left his aunt's and the next that was seen of it was when Conover saw it scattered about the bottom of the safe on Monday. Gold is always kept in bags or boxes ; this was lying loose. Where did it come from ? Rifled from the pocket of Herbert Field as he lay lifeless in that bank on Sunday, and afterward found hidden away in the house of the defendant. Gentlemen, I have asked the Judge to charge you that the possession of the private property of a person murdered is criminative evidence of the highest degree. If he who has it cannot satisfactorily explain how he got it, the law presumes that it was taken in the perpetration and execution of crime. * * Then, it is in this position that we find the respondent compel- led to do some desperate deed to save his position in society and his place as a business man. To prove his innocence there is no way but to show an alibi for Field. * * * * Now, gentlemen, eight Bostonians of high character swore posi- tively to having seen Dr. Parkman after the hour when he went into the medical college from which he never came out alive and all these eight knew Dr. Parkman, and one of them swore to hav- ing bowed to him and to receiving a bow in return. Why, who should have seen Field that day, if he was alive ? His most inti- mate friends not simply those who barely knew him yet not one who was well acquainted with him ever saw him after that fatal noon. * * * * The defense have introduced certain new evidence, and, having done so, it is as much at our service as at theirs. If it becomes necessary for us to show that Vanderpool had an accomplice to help him remove the body, we are entitled to use the evidence, which is new to us, and which supplements our position. But it is not necessary to use it. I have made some calculation on the time necessary for a trip to the piers and back. The defense have 310 MODERN JURY TRIALS. claimed that fifty-eight minutes were needed, if a body weighted with iron was dragged at the end of the boat. I will let them have their estimate, but I will tell you that it is neither necessary nor possible to make the voyage on which Coquillard estimated. Stormy as the surface of the water was that Sunday night, neither Vanderpool nor "the man in the boat" could have gone beyond the Blanchard property on the voyage toward the mouth of the river. And if either had dropped his dreadful burden there, it would, by the inevitable action of the water, have just as certainly been cast outside the piers as if it had been taken to the very out- let. * * * * Here Mr. Church told a boat-story which he had picked up in a law-book, to illustrate the unreliability of such evidence as that which was brought up for the first time on this trial. The defense have laid great stress upon the testimony of John Blanchard as to the landing at the bank platform with fish. No matter how much fish was ever carried up those stairs, the blood that was found there was indisputably mammalian blood, and was so recognized by Dr. Duffield ; so was the blood on the floor, and that is not disputed ; so was the blood on the Manistee Times, lying in the desk of the bank. * * * * The little dog was at Vanderpool's house in the afternoon, and was running uneasily about. But where was he at noon ? At Kala- mazoo, Piper testified that he had not particularly noticed any dog with Vanderpool when Vanderpool came back into his house for his bath. Here he said he thought the dog was with him. But Nun- gessner, treading close on the heels of Ramsdell, heard a dog howl- ing in the bank. What does this mean ? When a dog is pinched or suddenly hurt he yelps, he does not howl. That howl meant that a more fearful, terrifying sight was before his eyes than he had ever yet looked upon. And Vanderpool took him away with him, that he might not attract the attention of passers-by by his moaning. And in the evening, remembering the silent face of his dead master, he wandered restlessly about not soothed by the presence of his new -mistress even and mutely appealed to the murderer for the assistance which could never be given to the victim. * * * * Gentlemen, Mr. Vanderpool has committed this murder. It is a terrible conclusion, but one which we cannot avoid. If we must draw this inference, it is as a duty we owe to the people. It is against the presumption of the law, which regards him as innocent until he is proven guilty ; it is against his former character, poorly TRIAL OP VANDERPOOL. 311 proven as it is ; it is against his supposed friendly relations with his partner Field. But it is not the less a possibility, for God only knows what lies under the exteriors of men, respectable and fair-spoken as they may seem. Only one class of men in this country the priests of the Catholic Church are permitted to hear the inmost secrets of men's minds, and their lips are sealed. We have had testimony upon Vanderpool's reputation ; no con- fessor has come forward to tell us of his character. He did hold Field in double trust his friend, his partner and those facts should have "pled like angels, trumpet-tongued, against the deep damnation of his taking off." But he was not > faithful to his charge ; under his smooth face he carried hatred and a bloody pur- pose ; to every appearance friendly and upright, he was but a " whited sepulchre, full of dead men's bones and all uncleanliness." ****** Gentlemen, I leave this case in your hands, in the hands of men who will not that the acquisitions of industry and economy be torn from them by robbery, nor that the term of their natural lives be shortened by murder ; but who will that the least wrong done in any community to the humblest member of that community is a wrong done to the State. However much of pleasantry may have seemed to you to have entered into the little verbal encounters between the counsel in the case, I assure you that this noble mem- ber of the profession who sits beside me has never once lost sight of his duty to his client, and that I have not once forgotten what I owe to the People whom I represent. My own associations with the cause are somewhat remarkable. At the first trial I was crushed by the loss of a son, and I told the jury that while my own affliction led me to pity the sorrowing family whose home had been so suddenly and terribly overshadowed by this great crime, that it led me also to hope for the safe deliverence of this young man from the fearful accusation which weighed upon him. I know the consequences of conviction ; how it cuts down to the earth, at once and forever, the bright hopes of these young lives, and dooms the prisoner to a living death. But the actual and possible conse- quences of the crime are dark and dreadful, however they are viewed. Herbert Field murdered, his aged mother is driven almost to the confines of insanity ; the respondent convicted, the young life of his wife is crushed and darkened forever. * * * * Gentlemen, take the case to your jury room. May the God of mercy, truth and justice guide your deliberations the God of mercy, who will incline your hearts to pity this wretched man who sits before you, charged with the greatest of crimes the God of 312 MODERN JURY TRIALS. truth, who will point out to your understandings the hidden thinga of this mystery, and make them clear to your vision the God of justice, who will bring you to a righteous decision. The jury were out six hours. The first ballot was eleven not guilty, one guilty of murder in the second degree. At this point they came in for further instructions, and were charged by the court, at the request of the prisoner's counsel, that they must either convict of murder in the first degree or acquit. The scene in the court room during this second instruction to the jury was tragic. Vanderpool's wife sat with hands clenched and blanched cheeks, and when the jury retired the second time, she broke down into a fit of terrified sobbing at what she believed the awful suggestiveness of what had just taken place, although her counsel assured her and indicated exactly what transpired shortly afterwards. Fifteen minutes later the jury announced their agreement. The scene in the court room was impressive. The clerk rose and asked the jury if they had agreed upon their verdict; the foreman answered, " Y^s !" The clerk, in his excitement, forgot to prop- erly interrogate them, but asked, " For whom do you find ? " The reply of the foreman was scarcely audible, from suppressed emo- tion, and it was supposed by most who heard to be " Guilty." He immediately arose, however, and said plainly, " Not guilty !" and three or four other jurors half rose, repeated his words, and fell back into their seats. Mrs. Vanderpool, with a shriek, fell for- ward into her husband's arms. " Can't you take the verdict in form ? " asked Mr. Hughes, impa- tiently, of the clerk. " Ask whether the verdict is guilty or not guilty." This was done at last, and the answer came back, " Not guilty." And so say you all ? " said the clerk. "Not guilty!" reiterated every juror. The scene which followed is almost indescribable; a tornado of applause followed from the densely-packed court room, which the court could not suppress. The building shook; the prisoner turned his face to heaven, closed his eyes, and lifted his hands, as though in thanksgiving. One great, brawny juror, with a piratical mous- tache, whimpered like a child. Another, a sturdy blacksmith, usually ferocious in appearance, wept. Ladies in the court room crowded into the bar to congratulate the prisoner and his wife, who in turn gave to their counsel the warmest assurances of their gratitude. TRIAL OP VANDERPOOL. 313 And so the great trial of Yanderpool was over. As an incident interesting in connection with this trial, the fol- lowing editorial clipped from the columns of the Grand Rapids Daily Democrat, published the day after the introduction of the testimony concerning the mysterious boatman, may prove inter- esting : " WHO MURDERED HERBERT FIELD ? " We don't believe in spiritualism, free love, or witchcraft, yet a circumstance in regard to the murder of Herbert Field, at Manis- tee, two years ago, may be worth relating, since the introduction of new testimony by the defense in the Vanderpool trial, at Hastings, bears on the same subject. " A few days before the trial of Vanderpool at Manistee, on the charge of murder, the writer was called to visit a gentleman in this city in regard to the purchase of a piece of property, and while there witnessed a ' spiritual manifestation,' as it is called, which convinced several who were present that Vanderpool was innocent of the charge of murder. " When we entered the house we were somewhat surprised to meet a circle of believers in spiritualism, while one of the number, a lady, was just going into a 'trance.' Being invited to a seat, we accepted, with the purpose of seeing the 'whole entertainment.' The lady medium appeared to have no control over herself, her limbs twitching and jerking, her eyes being closed, while the mus- cles of her face were made to perform violent contortions, and pre- sented an appearance disagreeable to look upon. " Gradually she became more calm, and at length very quiet. A number of questions were asked, which the woman answered, in a deep, masculine voice, evidently to the satisfaction of all present. "The Manistee murder at that time being the source of conver- sation in high and low circles, one of the number asked the medium, 'Did Vanderpool kill Field?' and the reply was, very emphatically, 'No.' Further inquiries on the same subject were made and answered promptly, and in reply to the question, ' Can you describe the person who killed Field ? ' She answered, ' Yes,' and then drew a picture of a man, of which the person picked up in a ' mys- terious boat ' off Manistee by the captain of the schooner Craio- ford, and described in the trial at Hastings, was an exact counter- part. The medium further stated that the 'myterious man had an accomplice ' in the person of a female, who was minutely described, and who received a portion of Field's money. Other particulars of 314 MODERN JURY TRIALS. the murder were touched upon, but not being ' in the faith,' we took no pains to remember them, and probably should not the event above but for the fact of the new evidence brought out at Hastings. We only desire to repeat that we have no faith in sniritualism, and publish the above circumstance for what it is worth, only adding that what is stated is true in every particular, and can be corroborated by persons who were present." McFARLAND-RICHARDSON CASE. Tried at New York, May, 1870. STATEMENT. 1. Albert D. Richardson was a journalist, a staff reporter, and late war correspondent of the New York Tribune; a man known throughout the nation as a pleasing writer of considerable promise. 2. Daniel McFarland was a graduate of Dartmouth college: a professor of chemistry, logic and belles-lettres; an elocutionist, and member of the New York bar, with some political influence, but slender law practice. He had speculated and failed, and was not possessed of much property. At the time of the homicide he was about fifty ,years of age. He had married a young wife, rather giddy, though quite attractive, who bore him two children. Two years prior to the tragedy, Mrs. McFarland had applied, in Indiana, for a divorce; but there was no record produced on this trial of the granting of her petition. Just before the death of Richardson, the Rev. Henry Ward Beecher and Dr. Frothingham performed a marriage ceremony between Abbie Sage McFarland and Albert D. Richardson, at the Astor House, which was not a little sensational, Mr. Beecher thanking the " Divine Father for what these two had been to each other." Mr. McFarland having no notice, or service of notice, claimed the alleged divorce to be wholly void. The theory of the defense was insanity, caused by the loss of Mr. McFarland's wife and child through the wiles of Richardson. The People sought to convict of murder in the first degree. The trial was before Recorder Hackett. District attorney Gavin and Judge Davis appeared for the state; Hon. John Graham and Elbridge T. Gerry for the defense. Mr. Graham closed for the McFARLAND-RICHARDSON CASE. 316 defense, and, added to his general talent, was the ripe experience of four similar trials, so that his brief and argument on the law of insanity is one of the fullest and most complete ever written or delivered on the subject. He had no personal pride of opinion to advance; wherever rare wisdom was to be had, he procured and read it; the Bible, as well as words of eminent advocates like Seward, Stanton, Brady, Hale and judges of high renown, were used with a power and skill, seldom surpassed since the trial of Hastings. It has many apt quotations of distinguished men, made effective by one orator. In this respect, the argument of Mr. Graham is the climax of a thirty days' trial. His speech was animated action. His art is utter self-oblivion and a rigid adherence to the strong points of law and evidence. He assumed nothing until proven, and proved that thoroughness with strong personal belief in his case was effective. His frequent use of pertinent scripture quota- tions, delivered with a sacredness always appropriate, gave weight to his reasoning. His memory, force and industry, all aid in his success. His remarks are condensed from one hundred and twenty' eight pages to a short story of the case, with a terse argument, and a happy combination of other briefs makes it fourfold stronger. ARGUMENT OP MB. JOHN GRAHAM. MAY IT PLEASE THE COURT: Gentlemen of the jury, How con- soling must be this day to this afflicted, sorrowing and heart- broken man! He is at last where he has no cause to dread to be, before a jury of his peers, the highest social privilege guaranteed to him by the laws of his country. Within his bosom, for many a dreary hour, he has carried a weight of anguish likened unto which the nether mill-stone, figuratively speaking, may be almost said to be as light as air. Death, stripped of the obloquy and terrors here sought to be attached to it, might be to him a harbor of repose. Long enough has he endured the peltings of the merciless storm! Who does not now trust that he may find an asylum in your jus- tice ? Temper it with mercy, as you yourselves expect forgive- ness. To you, to you, my fellow men, through me, his humble and undeserving advocate, he turns as the arbiters of his worldly hopes and his earthly destiny. In him are united the wrongs of a dis- honored husband, an injured, an outraged father. His story can. be briefly told. " He has loved not wisely, but too well." You have heard some of the particulars of his sad career. Have they not gone to the very depths of your souls ? Have you not, each one of you, during the developments of this unnatural investiga- MODERN JURY TRIALS. tion, asked yourselves, over and over again, the question: Could I have done less than he did, and might I not have done more? Who can tell the capacity of the human mind to withstand or resist those pressures against which it may have to contend?. Who can make over the work of Omnipotence ? Who can alter or reverse its fiat ? If we turn our eyes to those trackless, unmeasured realms of space which abound with the monuments of the vastness, power and wisdom of the Great Author of all, how are we dizzied by the grandeur of the contemplation, and shrivelled by a sense of our own littleness? Which of us could be vain or irreligious enough to question or seek to interfere with the laws which regu- late the movements of those countless systems, compared with which our own sphere is as a speck, and with which it has not any ascertainable connection? Who can check the light, or restrain the heat, which issues from the sun ? Who can return to the queen of night her silvery brightness, or despoil her of any of her appropriate offices ? Who can appoint the time for the blowing of the wind, the appearance of the lightning, or the advent of the rain ? This is not within the scope of human power. These are not among human prerogatives. It is to this category we assign the human mind. It is the breath of the Deity. It is a fire of his kindling. It is the immor- tal soul bound on its way to eternity. It contains the elements communicated to it from that source, and it is as impracticable for us to extinguish it altogether as to create it anew or to endow it with a different character. There is a point up to which its opera- tions may be said to be vicious or criminal. Beyond that point its action is suspended for all secular purposes, leaving its possessor an involuntary agent in the execution and infliction of Divine vengeance. What is the allegation of this prosecution? Not, may it please the court, and you, gentlemen of the jury, that the individual who has passed to his grave met an unmerited doom; not that, if he sullied the marital honor of his neighbor, he did not disentitle him- self to live: but simply this that, however just and righteous his reward, he received it at the hands of an unauthorized instrumen- tality. That depends upon the mental condition of the slayer at the time of the commission of his act. It is this consideration which meets you at the threshold, and is the last to leave you at the close of this solemn proceeding. Here I may be permitted to return the thanks of my learned brother and myself to the court, for the amenity we have experi- enced at its hands from the opening to the close of this investiga- McFARLAND-RICHARDSON CASE. 317 tion. Your honor's responsibility has been great. Tour trust has been most sacred. Many important questions have arisen, to be decided upon the spur of the moment. They have had to be sum- marily disposed of, in order to enable the wheels of this trial to keep rolling on. However much we may have differed from you during this trial, so far as my associate and myself are concerned^ we desire to make this public acknowledgment to you, and to ex- press our conviction that every decision you have rendered has been prompted by humanity of motive, by purity of intention, and by an unquestionable spirit of impartiality. To you, gentlemen of the jury, our obligations are overwhelming. We have taxed your patience and time beyond all precedent. We know not how to thank you. Your sacrifices have been great. Remember the great moral, as well as social duty of this occasion. In later life it may be a gratification to you to refer to the incidents of this trial- God grant that you may be spared to see the good results, which may issue from your action on this solemn occasion. It may be that the satisfaction as you turn back upon this occasion which you will derive from its recollection, will prove to you more or less of a compensation for the losses you have been compelled to sus- tain. If, in the manner of either my associate or myself, you have discovered aught that was offensive or unpleasant to you, in the name of my client, let me ask you to dismiss it from your memory. Remember, that it is the law of humanity to err, and however numerous the errors we may have committed in your presence, rather credit them, if I may so ask you, to an over-sense of fidelity to our client. This is the third occasion within some twelve years on which, although a single man myself, I have had the distinguished honor conferred upon me of upholding and defending the marriage rela- tion. Within that period the three most exciting trials have occurred in this country that have ever occurred in it, and it has been my distinguished privilege to appear in every one of them. Why it is, when practically I could not enter into the sympathies of such a relation, I have been selected for this distinguished office, I cannot divine, unless it is that I regard marriage as a sacrament, and had I thought less of it I might probably have contracted it before now. The veneration with which I regard it is well known, and, although my lot in life is not suited to its practical advocacy, nevertheless, so far as my theoretical predilections are concerned, they are of that character which has induced my selection as a counsel to maintain the sacred ness and inviolability of the relation, on the different occasions to which I have referred. To portray 318 MODERN JURY TRIALS. the tenderness of woman's nature to do justice to her charms to exhibit fairly her perfection to represent her as she is has challenged and successfully defied the greatest imaginations, whether exercised through the pen of the poet, the brush of the painter, or the chisel of the sculptor. The extreme delicacy and sensitiveness of her constitution unfit her for those masculine con- tacts with the world, which are adapted to the sturdier attributes of man. What more power does she desire ? What more power can she have than she already exercises ? Her power is unlimited in forming and moulding to her liking a husband's disposition. The potter hath not more power over the clay to form one vessel unto honor and another unto dishonor, than has a wife over the attributes and character of her husband. If there is unhappiness in the domestic circle, can she not do much to dispel it? Poverty ceases to be felt amid the consolations of her companionship, and sorrow disappears in the presence of her smiles. The peculiar virtues to be exemplified by the family queen are beautifully stated in scripture Prov. xxxi. 10-31: Who can find a virtuous woman? for her price is far above rubies. The heart of her husband doth safely trust in her, so that he shall have no need of spoil. She will do him good and not evil all the days of her life. She seeketh wool, and flax, and worketh willingly with her hands. She is like the merchants' ships ; she bringeth her food from afar. She riseth also while it is yet night, and giveth meat to her household, and a portion to her maidens. She considereth a field and buyeth it ; with the fruit of her hands she planteth a vineyard. She girdeth her loins with strength, and strengtheneth her arms. She perceiveth that her merchandise is good ; her candle goeth not out by night. She layeth her hands to the spindle, and her hands hold the distaff. She stretcheth out her hands to the poor; yea, she reacheth forth her hands to the needy. She is not afraid of the snow for her household; for all her household are clothed with scarlet. She maketh herself coverings of tapestry; her clothing is silk and purple. McFARLAND-RICHARDSON CASE. 319 Her husband is known in the gates when he sitteth among the elders of the land. She maketh fine linen and selleth it; and delivereth girdles unto the merchant. Strength and honor are her clothing; and she shall rejoice in time to come. She openeth her mouth with wisdom; and in her tongue is the law of kindness. She looketh well to the ways of her household, and eateth not the bread of idleness. Her children arise up, and call her blessed; her husband also, and he praiseth her. Many daughters have done virtuously, but thou excellest them all. Favor is deceitful and beauty is vain; but a woman that feareth the Lord, she shall be praised. Give her of the fruit of her hands, and let her own works praise her in the gates. There are, gentlemen of the jury, two incidents of this trial that demand notice here. I do not on this occasion mean to indulge in any undue severity in reference to the private counsel who has appeared in this prosecution. He is to take no part in the argu- ment of this case before the jury, and it would be ungenerous and unmanly in me, now that he has virtually retired from the case, to make him the subject of any bitter assault in the remarks I may utter hereafter. I have the right, however, and it is my duty, to refer to his appearance upon this occasion. The appearance of that gentleman has not been so objectionable as his extreme tech- nicality, and I think I should be sustained by the response of every juror here, if he could give it to me when I called upon him for it, that this prosecution has partaken altogether too much of the nature and character of a private proceeding. There are some particular parts of the management on the part of the prosecution to which I will refer in a few moments, which will show you more readily the verity and propriety of this remark. The other incident, to which I desire to make a passing allusion, is this and I do not propose to more than call it to your atten- tion, and the rather because I wish to dissent from the. precedent which has been attempted to be established upon this trial in a community as heterogeneous as ours, where there is so large a foreign element in our population, discriminations on the score of nationality, so exceedingly out of place and inappropriate on all 320 MODERN JURY TRIALS. occasions, are particularly so when exhibited under the auspieet of a public prosecution. The formation of the jury was delayed one day in this matter, by the extreme captiousness of the prose- cution. Three competent jurors were found, two of them belonged to one nation, and one to another, and yet, for some cause or other, although they were good and reputable citizens, the People of this mighty state through its accredited organ, the prosecutor of this county, objected to their sitting upon the decision of this indict- ment. In our state and this is an anomaly in all capital cases, and in all cases involving a punishment of or beyond ten years' imprisonment in a state prison, the prosecution have the right to exert what are called five peremptory challenges; that is, the right to set aside a juror for no other cause than that they are not will- ing to accept him. I shall ask you, gentlemen of the jury, to carry in your minds certain principles which you will hear me hereafter, more or less, amplify in some suggestions I shall make to the court, as to what we suppose to be the law the court should lay down to the jury for their guidance in this case. This is a case of murder or nothing. There must be no compromise here. If Mr. McFarland is guilty at all, he is guilty of murder; and the juror who would compromise him into the state prison would violate his oath just as much, as if the prisoner were guilty of murder and he did not convict him of that crime. There can be no medium verdict here, and so I place this man before the jury. The prosecution are not, by a species of strategy, to fall into a kind of inferior conviction. That is one of the shifts of diplomacy sometimes called into requisition by a prose- cution. They indict a man for murder, intending to get him into the state prison, and then they exercise their humanity by saying, "We do not press the case against him for a conviction of murder; we only ask a conviction of manslaughter." The jury are often- times misled in that way. This is a case of murder or nothing, and so I will put it to you, and I will presently show you that the beloved James T. Brady, on the trial of Cole, scorned the idea of the jury convicting his client of manslaughter, when it was murder or nothing; and that they ultimately, on that intimation from him, rendered a verdict of acquittal. A compromise is a violation of your oaths. This case ought to be looked straight in the face. If Mr. McFarland is responsible for his act at all, he is responsible for the highest crime known to the law. If the testimony has shielded him from a conviction of that offense, he is entitled to a clear ver- dict of acquittal at your hands. Although I have no right to give you the law, because that McFARLAND-RICHARDSON CASE. 821 comes from the court, yet you are at liberty to carry in your minds, in hearing my argument, these additional principles. If upon the whole case, you entertain a reasonable doubt as to whether Mr. McFarland was sane or insane at the time of the shooting, you are bound to resolve that doubt in nis favor. If this case is so balanced that you cannot tell whether he was sane or insane at that time, you are bound under your oaths to acquit him, because in convicting him of murder you sustain this indictment, which charges that in slaying Albert D. Richardson, the prisoner was moved and stimulated by the instigation of the devil. A man may be insane as to one man, and perfectly sane as to the rest of the world. A man can be deprived of his mind on one subject. A man can be mentally deranged in reference to a particular man, or a particular set of men. So far as he act 9 within the limits of his derangement he is not accountable, but if he goes outside of those limits, and attacks the rest of the world, he draws on his head the same accountability as if he was perfectly free from men- tal alienation. An important consideration you are not to overlook is that human science, in reference to the mind, is limited at the best. The condition of the human mind is a subject of doubt in itself. It cannot be inspected, and even where derangement is known to exist, there may be an undue limitation of it. The jury are conse- quently required to be humane and liberal, for they assume to pro- nounce upon that as to which they may be mistaken, or as to which they can judge erroneously. There is a difference among medical men as to whether insanity is a disease of the soul, or a disease of the body, and you will remember that if you hold that the human mind exists through the perceptions by a species of external action upon the brain you seem to destroy the immortality of the soul altogether. There are three theories on the subject of insan- ity the psychological theory, of those who insist that the soul is independent of the body, and that insanity is a disease of the soul; the somatic theory, that insanity is a physical disease; and the intermediate theory, of those who advance the capacity of the soui to impart disease to the body, and the capacity of the body to impart disease to the soul. This is one of the remarkable mys- teries which human science cannot fathom, and as to which it can only speculate. It will be for you to exercise your judgments, under your oaths, as to the medical testimony, precisely as you shall consider most consistent with reason. To enable you, gentlemen of the jury, to judge how strong a feeling is aroused by the compromise of a husband's honor, let 91 322 MODERN JURY TRIALS. me invite your attention to the marriage relation as exhibited in Scripture. Marriage is a Divine institution, and to judge of it by any human book would be absurd. It would be idle for me to read you a human book to show how strong a man loved his wife, when the Bible, which speaks from the Deity, tells you what mar- riage was created for, and what feelings the Almighty imparted to it. I read from the Scriptures here simply as I would read from an ordinary book, to show you what was the strength of this man's feelings when invaded and outraged by the man whom he is charged with sending to his grave. When Adam was presented with woman, formed by the Almighty from one of his ribs, taken from him in a deep sleep, Adam said, "This is now bone of my bone, and flesh of my flesh; she shall be called woman, because she was taken out of man. Therefore shall a man leave his father and his mother, and shall cleave unto his wife, and they shall be one flesh." One flesh has one set of feelings. There is a perfect unanimity of feeling in one flesh. Hence, you observe that when man and wife are mated they are the same, and both feel the same. An outrage to one is an outrage to the other. The Xew Testament contains the same sentiment, thus: "Wherefore, they are no more twain, but one flesh; what, therefore, God hath joined together, let no man put asunder." This furnishes an idea of how intensely husband and wife should love one another. They are to be one in spirit, as they are one in body. Their hearts are to beat in unison. It may be that they do not reciprocate one another's love; but that may not affect the feeling of whichever of the two parties has the appropriate amount of love. If the woman does not love the man, but the man loves the woman with all his soul, the man's feelings are just as strong as though the woman returned his attachment, and an outrage upon those feelings, even though his attachment is unreturned, is just as serious as though the out- rage was upon a marriage relation, where the hearts of husband and wife beat in unison. Let me now read to you some verses from Proverbs, which were recited by the beloved James T. Brady on the trial of Sickles in Washington, with which we were both connected, in the defense; because the view they held was that you cannot understand what marriage is, unless you go to the source from which it emanated. There is but one source, and that is the Bible. The feelings of a man at the discovery of his wife's infidelity, and the doom of the adulterer, are significantly and powerfully portrayed in these verses: McFARLAND-RICHARDSON CASE. 323 Can a man take fire in his bosom, and his clothes not be burned ? Can one go upon hot coals and his feet not be burned? So he that goeth into his neighbor's wife; whosoever toucheth her shall not be innocent. Men do not despise a thief if he steal to satisfy his soul when he is hungry ; But if he be found, he shall restore seven fold ; he shall give all the substance of his house. But whoso committeth adultery with a woman lacketh under- standing ; he that doeth it destroyeth his own soul. A wound and dishonor shall he get ; and his reproach shall not be wiped away. For jealousy is the rage of a man ; therefore he will not spare in the day of vengeance. He will not regard any ransom ; neither will he rest content though thou givest many gifts. Those who dishonor husbands are here warned of their doom. It is decreed against them by Heaven. A wound and dishonor shall they get, and husbands will not spare them in the day of vengeance. This destiny is certain. The wisdom of Solomon, which was inspired, said it, and so it must, and so it will be, until human nature is formed anew, and different feelings and impulses are bestowed upon us. Jealousy, which defies and bears down all restraint, whether it be what we technically call insanity or not, is akin to it. It enslaves the injured husband, and vents itself in one result, which seems to be inevitable and unavoidable. Where jealousy what the Scripture calls jealousy which is what we call insanity, for the purposes of this trial takes posses- sion of a man's breast, he will not spare in the day of vengeance ; that is, he cannot spare ; for the Deity did not make man strong enough to stand a provocation like that. If provoked, the end cannot be averted. * * * * A vicious will, without a vicious act, says Blackstone (4 Bl. Com., 21), is no civil crime. So, on the other side, an unwarrant- able act, without a vicious will, is no crime at all ; so that to con- stitute a crime against human laws, there must be, first, a vicious will, and secondly, an unlawful act, consequent upon such vicious will. If there be a doubt about the act of killing, all will concede that the prisoner is entitled to the benefit of it ; and if there be any doubt about the will, the faculty of the prisoner to discern between right and wrong, why should he be deprived of the benefit 324 MODERN JURY TRIALS. of it, when both the act and the will are necessary to make out th crime ? The same writer also remarks, that where there is a defect of understanding, the will does not join with the act ; for where there is no discernment there is no choice, and where there is no choice there can be no act of the will, which is nothing else but a determination of one's choice to do, or abstain from, a particular action. He, therefore, that has no understanding, can have no will to guide his conduct. I am not controverting the legal presump- tion in favor of sanity, until the contrary appears. I am not deal, ing with legal presumption of any kind. I am treating of doubts and uncertainties touching guilt or innocence, which arise upon the trial of most capital offenses, and of the obligations which the law imposes, and which reason and humanity demand, that such doubts and uncertainties shall be removed before there can be a conviction, and a consequent deprivation of life." Coke says : " When a person of sound memory and discrimina- tion unlawfully killeth any reasonable creature in being, and under the king's peace, with malice afore-thought, express or implied." It is to be remarked that every member of this sentence is of the weightiest import in determining the constituents of the crime. The killing must have been effected by a person of sound memory and discretion. It must have been an unlawful killing ; that which is deprived of life must have been a reasonable creature in being, under the king's peace ; and the killing must have proceeded from malice, expressly proved or such as the law will imply, which is not so properly spite or malevolence to the deceased as any evil design in general ; the dictate of "a wicked, depraved and malig- nant heart." Every one of these things must have existed, in order to make out the crime, and they must be proved or presumed upon the trial to have existed, or the prisoner is to be acquitted. They are primarily a part of the case of the prosecution, to be established to the satisfaction of the jury beyond any reasonable doubt. The law presumes malice from the mere act of killing, because the natural and probable consequences of any deliberate act are presumed to have been intended by the author. But if the proof leaves it in doubt whether the act was intentional or acci- dental, if the scales are so equally balanced that the jury cannot safely determine the question, shall not the prisoner have the benefit of the doubt? And if he is entitled to the benefit of the doubt in regard to the malicious intent, shall he not be entitled to the same benefit upon the question of his sanity, his understand- ing? For, if he was without reason and understanding at the McFARLAND-RICHARDSON CASE. 325 time, the act was not his, and he is no more responsible for it than he would be for the act of another man." This is the law of Chief Justice Hale that no man can commit a crime unless he has the control of his will and our court of appeals, as will be seen hereafter, has decided that frenzy is a ground of exculpation from the consequences of an act done under its influence. It was elementary law two hundred years ago that understanding and will had to concur, to constitute a crime. In the McCann case, in one of the extracts read by me from the opin- ion of Justice Brown, we have the proposition as laid down by Blackstone, and I would say that no one has ever been able to state a legal proposition with a clearness and beauty equal to Blackstone. An unwarrantable act without a vicious will, is no crime at all, and a vicious will without a vicious act, is equally guiltless. Our statu- tory crime of murder in the first degree must have, first, a vicious will, and secondly, an unlawful act consequent upon it. "Where there is no discernment there is no choice, and where there is no choice, there can be no act of the will, which is nothing else but a determination of one's choice to do, or abstain from, a particular action." We ask the court to charge the following propositions to the jury: Even if the evidence as to the insanity of the defendant should leave it in doubt as to whether he was insane at the time of the commission of the alleged act, if it also leaves in doubt his sanity at that time, he is entitled to an acquittal. Though the evi- dence may leave the defense of insanity in doubt, if upon the whole evidence in the case the jury entertain a reasonable doubt as to the perfect sanity of the defendant at the time of the commission of the alleged act, they are bound to acquit him. If the jury cannot say beyond a doubt that the defendant was sane at the time of the commission of the alleged act, or cannot say whether, at that time, he was sane or insane, they are bound to acquit him. If the jury entertain a reasonable doubt upon all the evidence in the case as to the guilt or innocence of the defendant of the crime alleged against him, he is entitled 'to an acquittal. In England, the lives of two of their sovereigns have been attempted within this century, and in both cases insanity was recognized and admitted as a complete defense. We all know that whatever difference there may be in the loyalty of an Englishman to his government, he is tenacious of his affection for his sovereign, and all Englishmen are anxious and sensitive when the safety of the sovereign is interfered with or invaded. In this case, when these feelings and prejudices must have increased the horror of the 326 MODERN JURY TRIALS. crime, Hadfield was acquitted upon the simple ground of insanity. He armed himself with a pistol, entered the theatre, and stayed there thirty or forty minutes, apparently as sane as any man in it, and when the king stepped forward to the front of the box to make his acknowledgments to his subjects, as they were cheering him. he stood up, took deliberate aim, and fired several shots at the king. He was arrested, tried, and acquitted upon the ground of insanity. So that in that country the fullest scope is given to this plea, even where the sovereign is concerned, and the defense always prevails there in proper cases. It is a principle of the common law of the land the greatest system of human wisdom ever given out to the world that the law does not excuse a man who makes himself drunk to slay his neighbor. The law recognizes no right in him to set up his immo- rality against his criminality; but if his neighbor makes him drunk by force or contrivance, and he should commit a crime while in that state of intoxication, the principle would not apply. In the first case it is self-imposed madness, and in the second it is a forced or compelled madness. Does not this analogy hold good here ? Who made this man drunk? Richardson. And he slew him. And how can it be claimed that this man is to pay, for the deed which Richardson con- strained, the forfeit of his life. That 'which goes into a man's mouth, and disorders his brain, is as nothing to that which goes into his mind and maddens his intellect. Who reduced this pris- oner to a condition in which he was bereft of consciousness and will ? Who mixed the contents of and compelled him to drain the bitter cup from which he drank for years ? Was it not this which caused his derangement ? The man who lays a slow match to the happiness of his neighbor and maddens and frenzies him, ought to be compelled to take the consequences of what he thus brings about. The prisoner was the victim, not the cause of his frenzy. We want the court and jury to remember that this man did not madden himself, but that he was maddened by the combination, unveiled and exhibited by the evidence on this trial. The suddenness of the explosion is no argu- ment against it, for sudden insanity exhibits itself in delirium in sickness. Sometimes it disappears almost as suddenly as it came, yet an act done under its influence is guiltless. In this connection, I desire to refer to a case once very familiar in this county, where the defense was conducted by my own brother, who offered on the trial no medical evidence in support of the allegation of insanity. It is the case of Amelia Norman. McFARLAND RICHARDSON CASE. 327 The prisoner was indicted in this court for an assault with intent to kill. She had been led astray by a man, who deserted her after he had ruined her, and appeared determined to turn her over to a fate almost inevitably awaiting a fallen woman. She was willing to give him up, but wanted some assistance from him to start her in respectable life. He refused her this, although she tried to soften him in every way. She surrendered herself to absolute despair; and in a moment of frenzy, as he was entering a public hotel in this city, first appealed to him in piteous tones, and finding him inexorable, plunged a knife in him, almost taking his life. This was the act for which she was indicted, and the trial took place at the January term of this court, 1844. After a trial of four days, she was acquitted, and when the verdict was rendered the welkin rang with the cheers of the populace, loud enough to be heard blocks off from the court-room. She was taken in hand by a celebrated authoress, who heard of her wrongs and stood by her until she passed through that ordeal. There was no medical evidence as to the condition of her mind when she committed the act, but, as in the Sickles case, the jury were left to tell what it was from their own knowledge of human nature. The recorder, in his charge to the jury, made use of this remark, as reported in one of the newspapers of the day, referring to the defense of insanity which had been set up: "That the best rule for the government of the minds of the jury was their own common sense view of the case," meaning that that was the cor- rect mode of passing upon the case under the legal instructions received from the court. We did not introduce any evidence of insanity in the case of Daniel E. Sickles, because we thought it unnecessary, as he slew the seducer of his wife as he stood waving his handkerchief, with adulterous intent, in the open street. We went to the jury upon the common sense of the matter. We knew that no man could be anything else than frenzied under a provocation like that. You do not want a doctor to tell you how you would feel, if, on returning home, you found your house had fallen, burying its inmates beneath its ruins. How much more harrowing the ruin when, instead of the material household, it is the moral household that falls ! How much greater the calamity ! In this case of Amelia Norman, the recorder left it to the jury, as men of common sense, to say whether, when she found her seducer was inexorable in his determination to entail upon her lasting ruin, he had not himself provoked that moment of insanity in which she plunged her knife into his bosom. 32$ MODERN JURY TRIALS. I will now refer to the case of The People v. Kleim, and here again we desire to return our thanks to Judge Edmonds for the great interest he has taken in this case. Kleim's case will be found reported in I Edmond's Reports (Select Cases), page 13.. This prisoner was tried at the oyer and terminer in this county for March, 1845. He was indicted for a most barbarous homicide, in setting fire to the building in which the deceased (a woman) resided, and forcibly detaining her therein, at the same time inflict- ing wounds upon her with a sharp instrument, by means whereof she was suffocated and injured so as to cause her death. The trial occurred before Judge Edmonds and two aldermen, and resulted in his acquittal on the ground of insanity. The disease appeared to be monomania or melancholia. In this case, moral insanity was introduced into and firmly established as a part of the jurispru- dence of this state. The charge of the judge to the jury was as luminous, as accurate conception and clear language could make it. In one place he said : " If some controlling disease was in truth the acting power within him which he could not resist, or if he had not a sufficient use of his reason to control the passions which prompted the act complained of, he is not responsible." In another part of his charge he said : " And it must be borne in mind that the moral as well as the intellectual faculties may be so disordered by the disease as to deprive the mind of its controlling and direct- ing power." In another part of his charge he said : " In order then to constitute a crime, a man must have memory and intelli- gence to know that the act he is about to commit is wrong, to remember and understand that if he commits the act he will be subject to punishment, and reason and will to enable him to com- pare and choose between the supposed advantage or gratification to be obtained by the criminal act, and the immunity from punish- ment which he will secure by abstaining from it. If, on the other hand, he have not intelligence and capacity enough to have a crim- inal intent and purpose, and if his moral or intellectual powers are so deficient that he has not sufficient will, conscience, or control- ling mental power, or if through the overwhelming violence of mental disease his intellectual power is for the time obliterated, he is not a responsible moral agent, and is not punishable for criminal acts." If your honor will go over this subject, you will find that the doctors are right in saying that the test of intellectual insanity is absurd when applied to perceptional, emotional, or volitional insanity. You will be kind enough to observe this, and I hope that in this case we will have from the court, in its charge to the McFARLAND-RlCHARDSON CASE. 329 jury, some such originality on the law of insanity as was had from Judge Edmonds in the Kleim case. He was the first judge who planted this doctrine of moral insanity in this state, and he did it because when "the right and wrong test" was first applied to defenses of insanity, it was not discovered or understood that the perceptions, emotions, or will could be diseased, as distinct from the intellect. I desire now to call attention to the case of Freeman v. The People, 4 Demo's Reports, 9. The prisoner had been sent to the state prison, at Auburn, for horse stealing. He was probably inno- cent, and, on his liberation, deeming that he was entitled to be paid for his labor during his term of imprisonment (five years), he endeavored to commence suit against different individuals to obtain compensation. Not succeeding in this, he concluded that he must commence killing with that view, and accordingly commenced with the family of Mr. Van Nest, who resided some four miles from Auburn. He killed four persons, and seriously wounded one. He was indicted for the homicides at the Cayuga oyer and terminer. The fearful character of his crimes (as they were believed to be) rendered his conviction a foregone conclusion. The trial occurred in July, 1846, and resulted in a conviction of murder on one indictment. He was defended, as a matter of charity and humanity, by the Hon. William H. Seward. Many will remember the bitter feeling against the prisoner existing in our own commu- nity. He was a negro, and his victims were whites. Even against his counsel prejudice uttered itself, because of the color of the slayer and slain. The defense was that he was an idiot, or insane. The conviction was carried, on writ of error, to the supreme court, where the judgment of death was reversed, and a new trial granted. Pending the new trial (in August, 1847), the prisoner died. An examination of his brain after death showed disease, proving that the condition of the brain is not to be reached when a man is alive, and proving his unaccountability before the com- mission of his act. An honest jury had, mistakenly, pronounced him sane, realizing the strength of public feeling against the defense of insanity. Beardsley, J., who delivered the opinion of the court, construed our statute as to unaccountability for a criminal act committed in a state of insanity, and held that the words "no act done by a person in a state of insanity can be punished as an offense " referred to a state of insanity " in reference to such act." He rather con- demns the submission of the test of right and wrong in the abstract, and says that "the insanity must be such as to deprive the party 330 MODERN JURY TRIALS. charged with crime of the use of reason in regard to the act done." Partial insanity, where it covers the act done, is fully vindicated by this able jurist, who claims the fullest irresponsibility for an insane act. He illustrates this by showing that a man, partially deranged, does not necessarily commit an insane act. It is only where his deed is the result of the derangement. The importance he attached to the insanity of an act is visible in the remark, "the act, in my judgment, must be an insane act, and not merely the act of an insane man." It will be observed how applicable that prin- ciple is to this case. If the jury believe that the shooting of Rich- ardson by Mcfarland, on the afternoon of November 25th, 1869, was an insane act, the prisoner is not responsible for it, and though it would not necessarily follow because the prisoner was insane on some subjects, that he was insane as to that particular act, yet if he was insane as to that act and sane on other subjects, that would not deprive him of his right to irresponsibility. I now refer to the case of Cole, who was twice tried at Albany, I think, in 1869. On the first trial before Justice Ingraham, the jury disagreed. On the second trial, before Justice Hogeboom, he was acquitted. I cite the case for some of the principles contained in Judge Hogeboom's charge to the jury, as reported in 7 Abbott's Practice Reports (new series), page 321. As the court will remem- ber, Cole was indicted for the homicide of one Hiscock, once a member of Assembly in this State. Hiscock seduced the wife of Cole, who was an officer in the army of the United States during the war, and some days before he met Hiscock at Stanwix Hal^ Albany, his wife had communicated to him the fact of her dis- honor. He met him, and drawing a pistol, shot him, and the ques- tion was whether the presence of Hiscock rendered him irresponsi- ble for his act at the time he shot him whether the operation of the presence of Hiscock upon his mind was such as to frenzy him, and to render him unaccountable for what he did. Judge Hoge- boom, in one part of his charge, says : " The confessions, or alleged confessions, of the wife do not prove it. They were not admitted for such a purpose, and are not to have that effect. Their intro- duction was permitted, not as furnishing evidence of the facts themselves, but as communications made to the husband, and which were calculated more or less to operate upon his mind, and influence his conduct, and to enable you, in the light of subsequent events, to judge how far they did so operate, and to determine to what extent the knowledge or information of these facts was cal- culated to explain and to mitigate, or to justify the homicide sub- sequently committed. As interpreting the prisoner's subsequent McFAIlLAND-RICHAKDSON CASE. 331 conduct, as throwing light upon the state of his mind, they are admissible and proper to be considered." Again, he says : " In this case the adulterer if adulterer he was was not detected by the husband in the actual commission of his crime, nor under cir- cumstances from which its then very recent perpetration, so far as the evidence discloses, could have been fairly inferred. The period of adultery if adultery there was was long since passed. The knowledge or information of its commission had been communi- cated to the prisoner several days, at least two or three days before, and a sufficient time, in the judgment of the law, had elapsed for the passions to cool, and for reason so far to regain her undisputed or real sway as to forbid individual vengeance, and to pronounce the act of premeditated killing if such it was the crime of murder. " True it is, as I have already informed you, if, notwithstanding this lapse of time, the crushing weight of this domestic tragedy had driven the prisoner's mind to absolute distraction, and dethroned the reason of the husband, he is permitted to find immunity from punishment in the mental alienation with which he was thus over- whelmed." As regards this prisoner, it would seem that his desertion by this woman, and her almost notorious cohabitation with Richardson from the period of her desertion to the time of the shooting in question, are not the only maddening causes we have to rely on, but that he was principally maddened by the reflection that they still had possession of his youngest son, and that, if they carried out their programme in reference to that son, they would transfer him from his natural to his artificial parent, Richardson, and would remove from him the name of his natural father, and put upon him the name of a father chosen by this wife. It was the distrac- tion consequent upon the inability to discover whether they would not place this son beyond his father's reach altogether, which revived and reanimated the previous causes, and gave them fresh- ness, as though they had just occurred, notwithstanding they had occurred some two or three years before. Mr. Brady whose name can never be mentioned by any one without the most melancholy recollections, that we ever lost him nor without the most pleasurable recollections, that he ever should have existed used this language, in relation to that portion of the charge to the jury in which the judge intimated to them that, if the facts warranted, they could return a verdict of "manslaugh- ter " against his client : " With reference to what has been said by the court, upon the question of finding the accused guilty of 332 MODERN JURY TRIALS. 4 manslaughter,' I desire to say on behalf of the prisoner, that, in the judgment of his counsel, there is no rational or possible view by which the offense can be demonstrated 'manslaughter,' and that the prisoner declines to accept the offer of that sympathy that would induce a verdict for that offense, and would rather die than be sent to the state prison." The jury retired, returned to the court for further instructions, and then retired again. "Subsequently," for I read from the report, "they came into court, and the foreman stated they found the prisoner to have been sane at the moment before and the moment after the killing; but they were in doubt as to his sanity on the instant of the homicide. The judge charged the jury that they must give the prisoner the benefit of the doubt, if they had such rational doubt, founded upon the evidence, and could believe such doubt to be well founded upon such a condition of the case as was presented by this statement of the jury. The jury ren- dered a verdict of ' not guilty.' " The jury in the Cole case were instructed that if he was sane immediately before and immediately after the shooting of Hiscock, nevertheless that he was entitled to the benefit, and -was within the meaning of our statute as to insanity, if he was insane at the very point of time (of which they were to be the judges) of shooting Hiscock that that would exonerate him from the conse- quences of the act preferred against him as murder in the first degree. Judge Hogeboom delivered this instruction to the jury which we ask to have repeated in this case, as to the immunity resulting from a recent or sudden cause, operating upon the mind of Cole : "If the jury believe that, at the very time of the com- mission of the act alleged against him, from causes operating for a considerable length of time beforehand, or recently or suddenly occurring, the defendant was mentally unconscious of the nature of the act in which he was engaged, he was and is legally irrespon- sible for it." The jury can hardly fail to believe that when the deceased entered the Tribune office he did not expect to see the defendant, nor the defendant him, for there is no evidence to show that he anticipated meeting Richardson there. On the contrary, if he had any purpose, it must have been to see Mr. Sinclair, for he was there in the morning inquiring for Mr. Sinclair, and if he had seen him that interview might have allayed his distraction, and he would not have gone again unconsciously into that office as he did. There is not only no evidence that in the afternoon Mr. McFar- land expected to find Richardson in the Tribune office, but there ia McFARLAND-RICHARDSON CASE. 333 no evidence that the inmates of that office expected him there at the time. My solution of the case is this, that whenever Richard- son met McFarland before, McFarland could and did control him- self, and went out of his way; and that on this particular occasion, he encountered him in his insane mood, and when he was entirely beyond the power of self-control. I mean to argue from the facts, that, on other occasions, McFarland was rational, and controlled himself, but that that retributive justice, which has prescribed the fate of adulterers, directed Richardson on this occasion into con- tact with him when he was in that demented condition which ren- dered him an involuntary instrument in the execution of Divine or Heavenly vengeance. I mean to argue that he did not expect to see the deceased when he entered that office; but that, at the sudden appearance of the destroyer of his domestic peace, the memory of his great wrongs rushed with overwhelming force upon him, and placed him under the influence of that ungovernable frenzy in which he committed the act. Justice Hogeboom says, that when a person's faculties are for a time unsettled, and insanity enthroned in their place, he is not responsible for his acts. In Willis v. The People, 32 N. Y., the great intellect of Chief Justice Denio remarked, " that if the prisoner, when he killed the deceased, was in such a state of mind as to know that the deed was unlawful and morally wrong, he was responsible, and that otherwise he was not." Here is a case which can well be understood. " Morally wrong," are words that men of science can deal with. Many things are contrary to law which are not opposed to morality. This restricts the ability to judge between right and wrong to the capacity to judge between what is morally right and wrong. Should this court advance to this jury the " right and wrong test," it is important that the ability of the prisoner to discriminate between what is "right and wrong," should be qualified by the word "morally," so as to constitute an ability to judge between what is morally "right and wrong." Let it be understood, "morally wrong," for upon a proper interpretation of those terms depends an important issue. To submit the " right and wrong test " in the abstract, as it has been said, without the qualification of an ability to judge between right and wrong in relation to the particular act charged, would seem to be monstrous, and to be hardly less irrational with that qualification. The word "moral" or "morally" makes it more reasonable. It is wrong to disobey a corporation ordinance forbid- ding the putting of ashes on the sidewalk, though it cannot wel! be morally wrong. Sufficient intelligence to know that the viola- 334 MODERN JURY TRIALS. tion of such an ordinance was wrong would not, or might not, b sufficient to discriminate between what was "morally right and wrong," There is nothing in respect for, or the violation of, such an ordinance, one way or the other, or very little, to indicate whether a man is sane or insane, or to enable an inference to be drawn as to his capacity to distinguish between " moral right and wrong." To put such a test to a jury as the ability to judge between " right and wrong," terms in a certain sense predicable of obedience to or disobedience of such an ordinance, cannot be claimed to be the proper standard. I shall refer now to the case of Mr. Sickles, which occurred in the city of Washington, in the District of Columbia, in the year 1859; and when I refer to it I call from their graves the illustrious counsel with whom I had the honor to co-operate on that mem- orable occasion, to give to me the benefit of their eloquent tongues, AS I stand here, trying to save this injured man from the peril which hangs over him. We trust they are in that sphere where happiness is neither measured nor limited. They have left behind them noble records and noble utterances, which, -when they come to be quoted before this jury, will reach their hearts with a pene- trating power that never can be attained by eloquence of mine. Mr. Sickles was tried for killing Philip Barton Key in the city of Washington. According to the testimony, Key had been consid- ered by Mr. Sickles a reliable personal friend, and as such had been admitted to intimacy with his wife. It was also shown by the tes- timony that he was under strong obligations to Mr. Sickles; but he took advantage of the kindness and consideration with which he was treated, and debauched his wife. It so happened that he was around Mr. Sickles house shortly after the wife had made a con- fession of her shame to her husband, waving his pocket-handker- chief as an adulterous signal, and as his bad fortune would have it and as Richardson's bad fortune would have it he ran upon his death when he little expected it. Oh, how just that retribu- tion ! How well would libertines do to consider, when they plan their moral demolitions, that before they reach the goal of their ambition they may be intercepted in their pursuits as these men were! The evening before the fatal Sunday, the wife of Mr. Sickles had made a confession to her husband, and he was standing by the window when he saw Key pass by giving the adulterous signal, whereupon he rushed out in a state of frenzy, and slew the deceased, giving him three wounds with a loaded pistol and the jury would have sustained him if he had given him three hundred. McFARLAND-RICHABDSON CASE. 335 He was determined to do the thing right, and the jury sustained him in it. The prosecution claimed that it was a case of " remorseless revenge," and an attempt to add mutilation to murder. The jury, at the close of a trial occupying over four weeks, acquitted the defendant after an absence and a deliberation of about an hour and a quarter. On that occasion two propositions were laid down under the auspices of the eminent counsel, with whom I had the honor to be associated. One was, that the man who debauched the wife of his friend earned his death, and got it meritedly; and the other, that the husband could not have held back his hand from slaying him, if he had tried. Mr. Stanton joined in and approved of these propositions, and so did Mr. Brady. There was no summing up, but merely an argument to the court for " instruc- tions" to the jury. The court granted the instructions to the jury contained in the two following "prayers" (among others), as asked by the defense: "If, from the whole evidence, the jury believe that Sickles committed the act, but at the time of doing so was under the influence of a diseased mind, and was really unconscious that he was committing a crime, he is not, in law, guilty of mur- der. If the jury believe that, from any predisposing cause, Sickles' mind was impaired, and at the time of killing Key he became or was mentally incapable of governing himself in refer- ence to Key as the debaucher of his wife, and at the time of his com- mitting said act was, by reason of such cause unconscious that he was committing a crime as to said Key, he is not guilty of any offense whatever." The question was not how long it had taken Mr. Sickles to reach the condition of mind in which he was how long the cause had been working to produce that state of mind. His condition was produced in an instant, and was engendered by the appearance of the man who had debauched his wife. Let me read to the jury an extract from the most eloquent argument of the late Edwin M. Stanton, better known as the great War Minister of modern times. He it was who directed the energies of this great nation during the civil war in which we were recently engaged. However individ- uals may judge his character, it seems to be generally conceded that he is more entitled to gratitude for the successful issue of that gigantic civil struggle, than any other person connected with that strife. "What, then, is the act of adultery? It cannot be limited to a fleeting moment of time. That would be a mockery; for then the 236 MODERN JURY TRIALS. a.lulterer would ever escape." We know that the adulterer haa chances, whenever he comes in contact with the object of his lust. It is only a mere matter of meeting. If man and woman once commit adultery, the frequency of the adulterous act depends on the frequency with which they meet. It is always adultery. "But law and reason mock not human nature with any such absurdity. The act of adultery, like the act of murder, is supposed to include every proximate act in furtherance of, and as a means to, the con- summation of a wife's pollution. This is an established principle in American and English law, established from the time of Lord Stowell, as will be hereafter shown. If the adulterer hire a house, furnish it, provide a bed in it for such a purpose, and if he be accustomed, day by day, week by week, and month by month, to entice her from her husband's house to tramp with him through the streets to that den of shame, it is an act of adultery, and is the most appalling one that is recorded in the annals of shame." Yes, but this case transcends it. Richardson hired a room, and put his bed the craven libertine so near the wall which divided him from the room in which this man and wife slept, that he could hear them even breathe. If he had had any decency in his composition, he would not have done this. He placed himself where he could hear every movement they made, and control the movements of the wife completely. " If, moreover, he has grown so bold as to take the child of the injured husband, his little daughter, by the hand, to separate her from her mother, to take the child to the house of a mutual friend while he leads the mother to the guilty den, it pre- sents a case surpassing all that has been written of cold, villainous, remorseless lust." That does not for one instant compare with the wicked conduct of this Richardson, for he kidnapped this poor man's child, that he might carry on the adultery with her mother. He could not control her until he could control the child. "If this be not the culminating point of adulterous depravity, how much farther could it go ? There is one point beyond. The wretched mother, the ruined wife, has not yet plunged into the horrible, the revolting condition, to which she is rapidly hurrying, and which is already yawning before her. Shall not that mother be saved from that ? And how shall it be done ? When a man has obtained such a power over another man's wife that he can not only entice her from her husband's house, but separate her from her child for the purpose of guilt, it shows that by some means he has acquired such an unholy mastery over that woman's body and soul that there is no chance of saving her while he lives, and the only hope of her salvation is that God's swift vengeance shall overtake him. The McFARLAND-RICHARDSON CASE. 337 sacred glow of well-placed domestic affection, no man knows better than your honor, grows brighter and brighter as years advance, and the faithful couple whose hands were joined in holy wedlock in the morning of youth find their hearts drawn closer to each other as they descend the hill of life to ' sleep together at its foot.' But lawless love is short-lived as it is criminal; and the neighbor's wife, so guiltily pursued, by trampling down every human feeling and divine law, is speedily supplanted by some new object, and then the wretched victim is soon cast off, and swept through a miserable life and a horrible death to the gates of hell unless a husband's arm shall save her. Who, seeing this thing, would not exclaim to the unhappy husband, * Hasten, hasten, hasten to save the mother of your child, although she be lost as a wife. Rescue her from the horrid adulterer; and may the Lord, who watches over the home and the family, guide the bullet and direct the stroke.' And when she is delivered, who would not reckon the salvation of that young mother cheaply purchased by the adulterer's blood aye, by the blood of a score of adulterers ? The death of Key was a cheap sacrifice to save one mother from that horrible fate which, on that Sabbath day, hung over this prisoner's wife, and the mother of his child." Thus you see, gentlemen of the jury, that this great man raised his hand and prayed that the Almighty would lend Himself to vengeance upon the adulterer, by nerving the arm and directing the bullet of the injured husband. The following is the peroration of Mr. Brady's final remarks to the court on the "prayers for instructions:" "And I will be permitted to say, whatever consequences may result from the declaration, that in view of all that has transpired in the city of Washington, to whose citizens on this jury Sickles commits his life, his character, all that is to elevate or to keep him in existence (for in our entire confidence in the integrity and judg- ment of your honor and this jury, we are convinced that no harm can come to Sickles out of this trial); in view also of the relations of Mrs. Sickles toward him before he came to this city; in view of what he knew of her, of the extending of this shame from the mother to the child, which we suppose the evidence fixes on Key, Sickles might have gone anywhere else in the world but to New York, if he had not resented that indignity. He could never have returned to the city of New York and been accepted for one moment among any of his former friends!" ******* In John Manning's case, the prisoner was indicted in Surrey, 338 MODERN JURY TRIADS. England, for murder, for the killing of a man, and pleaded no! guilty. The jury, at the assizes, found that the said Manning found the person killed committing adultery with his wife, in the very act, and slung a jointed stool at him, and with the same killed him; and resolved by the whole court that this was but manslaughter; and Manning had his clergy at the bar, and was burned in the hand, and the court directed the executioner to burn him gently, because there could not be greater provocation than this. This has been the law in this state since 1823; and I allude to it .to prove how correct, legally, the estimate is we place upon the value of the marital relation. The court remarked to the jury that it was for them, under all the circumstances, to say whether " the crime charged upon the prisoner was murder or manslaughter, or justifiable homicide; and observed, if the jury were of opinion that the prisoner committed the act while the deceased was in criminal intercourse with his wife, it would not be murder, or even man- slaughter, but would be justifiable homicide, se defendo. Her con- sent would be of no avail to increase or extenuate the crime, if in the husband's presence.** Under this law, this husband had a right to avenge the betrayal of his wife: 2 Wheeler's Crim. Cases, page 47. I repeat, there is no proof that Richardson was expected at the Tribune office, nor, as I have already suggested, that when Mr. McFarland went there, he expected to find him there, or to have him come in after he got there, or that he had any suspicion at all r had any right to indulge a suspicion, that Richardson would be on those premises that afternoon. If that of itself is not sufficient to rebut the idea of premeditation on the part of Mr. McFarland, is it not clear that, if he was perfectly sane, and had wanted to kill Richardson, he would have selected a more auspicious spot than he did? If he went into the Tribune office, nerved to slay Richard- son as a matter of previous determination, it is folly to say that when Richardson met him on previous occasions and put his eye upon him, he quailed ; for a braver, more chivalric man than Daniel McFarland, if that be the fact, never lived. For a sane man to go into the lion's den to slay his adversary, where he was physically so disproportioned to the physical power of the estab- lishment, as Daniel McFarland was in the present instance, strikes one as so incredible, that it has only to be stated to be rejected by the jury. When a man gets even with a wrong-doer, or means to get even with a wrong-doer, he takes him at a disadvantage; and if Mr. McFarland in this occurrence did knowingly give Richard- son all the advantages they say he did, a braver man never drew McFARLAND-RICHARDSON CASE. 339 the breath of life. It seems absurd to us that he would walk into that establishment, pistol in hand, expecting to encounter Richard- son, when the chances were that his pistol might have missed fire, and he would have been stamped to death by the physical force of the inmates. We submit, therefore, if you need any evidence as a starting-point to satisfy you that the defendant must have been out of his mind when he entered the Tribune office, that it is sup- plied by the fact that he gave the deceased all the odds in his power against himself. Another suggestion I desire to call your attention to is this the certainty with which the bullet of the injured husband takes effect and I regard that as a strong moral lesson. You often read accounts of policemen who are fired at when they are endeavoring to arrest desperate characters. In some instances policemen will surprise burglars when engaged in their work. They oftentimes surprise them when escaping with their plunder. In attempting to arrest them sometimes three or four shots are fired in rapid suc- cession at the policemen, near enough to take effect, but without harming them. Unless you suppose they are in coats of mail, impervious to the attack, how can you account for it in any other way than upon the principle that some unseen hand turns the bullet off. I have often myself been struck with the miraculousness of the escape of policemen under such circumstances ; but in every instance where a frenzied husband sets about shooting his man, he succeeds ; and one shot generally fetches the business. There seems to be a perfect certainty about the matter, from which there is no escape, thus showing the extreme moral justice of the act. The prosecution have left this Mrs. McFarland before this court in the attitude of a mistress instead of a wife. I wish that to be distinctly borne in mind. We proved by Miss Anna Burns that the female she saw married to the defendant in December, 1857, now wears the name of Richardson, and the prosecution have dubbed her "Mrs. Richardson." They have not shown that she was divorced, or that there has been a subsequent marriage ; and they have permitted her name to leave this court as being that of her paramour. The necessity for that was this : To have brought in that marriage would have, of necessity, placed Mrs. Calhoun before this court and jury in such a, manner as that she must have been perfectly riddled, and to avoid that, they did not dare to go into the reason why Mrs. McFarland now bears the name of Richardson. I submit to you, on the evidence, that she appears to be nothing more or less than the mistress of Richard- 340 MODERN JURY TRIALS. son, because they have not shown the first marriage was annulled. They have not gone into the proof on that subject, nor have they permitted us to go into it. We have the fact that the woman left her husband, and was never exonerated from that marriage. She now bears the name of a man who, we say, was her paramour ; and she stands before the world in that character. I now come to the occurrence itself the shooting on the twen- ty-fifth of November, 1869. You will find that the evidence for the prosecution leaves it in a very unreliable state, and from the obscure manner in which it is left I argue that you will adopt your own presumptions as to what the occurrence was, rather than the affirmative evidence for the prosecution. All the witnesses for the prosecution are in the interest of the Tribune establish- ment. THE KILLING WAS INSTANTANEOUS. We believe there was scarcely an instant of time between the entrance of these two persons, and that the coincidence was brought about to work out the Divine vengeance, and that it was impossible for the adulterer to escape. Mr. King says it was fifteen minutes past five when the defendant came in and stood abreast of the desk. They make twelve minutes from his coming in to the shooting of Richardson, though the act must have been almost simultaneous. Mr. King says it was not very dark when the shooting occurred. The prisoner was in Mr. None's office not earlier than twenty minutes before five, and he was there nine or ten minutes, so that he must have left it a little before five o'clock in the afternoon. On that afternoon the sun set at twenty-nine minutes before five, and daylight, as usual, lasted about half an hour afterwards; so that that would bring dark at about one min- ute past five. Mr. King was right. We have no doubt the deceased was shot about dusk. They had gas lighted in the office, but we maintain it was not absolutely dark; that Mr. McFarland reached the office before it was full dark; that Richardson came in almost simultaneously, and that having, as Dr. Hammond says he had, congestion of the brain, to occasion an explosion nothing was needed but the application of the match. ******** You are, gentlemen of the jury, men of common sense. You will perfectly understand, that if, on the Broadway side of this park, this man was in a condition in which he was not fit for per- sonal liberty, he could not, in a few seconds, resolve himself into a perfect state of calmness. The explanation of this matter is this: McFARLAND-RICHARDSON CASE. 341 He was not there long enough to be observed by the inmates of that office. The thing was so sudden, they scarcely knew the man was there before the pistol was fired, and then there was such a disturbance and embarrassment, they were not conscious of what took place afterwards. They did not know enough to raise an alarm. It was not known any one was shot when he went out, nor did McFarland himself know he had shot Richardson in a vital part of the body. How did he know when he fired that one shot, that that shot had taken effect ? Why was he permitted to retire without molestation? The answer is, that the thing was so instan- taneous, and created such amazement and confusion, the persons there were hardly conscious of what went on. He might have been in Mr. Sinclair's office, or any other part of the building; but I want to show how determined they are to destroy this man. Mr. Carver said he thought he saw him there at three o'clock in the afternoon. "Suppose," I said, "we show that at that time he was miles away from there, what then?" Tt was because of my hurling that bravado at him a mere professional bravado he was induced to shrink from what he stated, and retract every word of it. The object of that was to show that Mr. McFarland was mousing around the office waiting for Rich ardson. As to the fact of Richardson being armed at the time of the occurrence, it is perfectly apparent. If it has no other significa- tion than this, it shows that he was prepared to kill the prisoner. It shows precisely that he was armed to make himself superior to the man he had wronged; and you will perceive his guilt in this. Why did he wrap that pistol in a flannel cloth and hand it to a friend for the purpose of being concealed, when he did not know how many minutes of life where then left to him? Why did he carry out his wickedness against this man in trying to suppress so important an evidence as that, when he did not know how many minutes he had to live, and when he wanted to have it said, when he was gone, that he was assassinated an unarmed man by the man who had prepared himself beforehand to cause his death when he encountered him ? He was so wicked to this man that, at the very last moment, he did not want it known to any person but those who would keep it concealed, that he had a malicious intention against the prisoner. He did not want to have it known, not only that he earned death, but that he was pre- pared to deal death to him who had suffered such great wrongs at his hands. Let me ask you: attention for a moment, gentlemen of the jury, 342 MODERN JURY TRIALS. to the peculiarity of a husband's position. A husband outraged like this one has to do something; he cannot lie down under it. If he shoots he is a murderer, and if he sues he is a craven. If he wants money he has no spirit, and if he rises to the dignity of an avenging manhood he must go to the gallows. What is he to do? Is he to lie down under it ? I have read you the undying words of the lamented Brady; I have read you the prayer of the immor- tal Stanton ; and where is the man whose heart pulsates with humanity that does not respond to every sentiment contained in them. Let me here refer to the case of Bunnett v. Greathead, 49 Barbour's Supreme Court Reports, page 106, which was decided in this state in the Second Judicial District, where a husband got a verdict of ten thousand dollars against a party for debauching his wife. He had followed his wife to a wood-shed, caught her and her paramour in the very act of adultery, did not interfere, and, as his own witness, proved it on the trial. The jury gave him a verdict of ten thousand dollars, but the court set it aside upon the ground that the man who could quietly see his wife dishonored was enti- tled to no damages at all. That is the doctrine of the court. I ask your honor to look at this case, in which the court virtually decided that such a verdict, if upheld, would, in effect, countenance and build up vice and immorality. Let me now refer briefly to a father's right to his child. This man makes no claim to the body of this woman; but he is a father, and he wants his child. According to the learned commentator Blackstone, that great duty of protection, owing by a father to his child, is a natural duty, rather permitted than enjoined by secular law, working so strongly as rather to need a check than a spur. Speaking of the obligations of maintenance a parent is under to his child, that great commentator uses language more potently descrip- tive of the extent and strength of paternal affection than anything of mine could possibly be. I will read his language: "The muni- cipal laws of all well-regulated states have taken care to enforce this duty; though Providence has done it more effectually than any laws, by implanting in the heart of every parent that natural or insuperable degree of affection, which not even the deformity of person or mind, not even the wickedness, ingratitude and rebellion of children can totally suppress or extinguish." The reciprocal duty of children to their parents is beautifully described by the same writer. His language is, that " the duties of children to their parents arise from a principle of natural justice and retribution. For to those, who gave us existence, we naturally owe subjection and obedience during our minority, and honor and reverence ever McFARLAND-RICHARDSON CASE. 343 after; they, who protected the weakness of our infancy, are enti- tled to our protection in the infirmity of their age; they, who by sustenance and education have enabled their offspring to prosper, ought in return to be supported by that offspring, in case they stand in need of assistance. Upon this principle proceed all the duties of children to their parents, which are enjoined by positive laws." * * * The woman was not alone in her iniquity. Mrs. Calhoun, an accomplice, writes her: " My dear Mrs. McFarland," After a while it is " My darling," and pretty soon she is ready to eat her up. " It was a good inspira- tion which led you to write to me, and I believe I wanted to hear from you." In another place she says: "But for this ignorant present I could wish myself with you in the smallest farmhouse that ever took root in a cleft of the hills." ********** "And you, I hope your desire and purpose for the stage has not faded " (Mrs. McFarland had evidently written nothing about the stage), "nor been trampled out by hard hoofs of necessity. Have you not had any encouragement ? I am very useless in that way, having no direct theatrical influence, but I will try to obtain some." Is this not trying to get her on the stage ? "I know that you would succeed, and I fully believe it to be your best and noblest work." It is said by some friends of this lady that these letters were not written for the public eye. No, they were not ; and that is what makes them more potently significant. They were written for the eye and mind of one person, and their publicity was not reckoned on. Well, she goes on : " Nothing so much as the stage needs good lives and good heads." This is not complimentary to the stage nor is it true in point of fact. I have the honor of being acquainted with many noble men and women on the stage, and I have their testimony that the stage is as high morally, and in every other way, as any other avocation pursued on this continent. Then she says : " I know I could help you in the direction of your wardrobe, but I feel there is not much else that I can do." Mrs. McFarland was an abortion as an actress never could, and never was meant to succeed yet Mrs. Calhoun says : " I think you have so many gifts, your beautiful voice, your changing color, your varying, soulful face, your earnestness and freshness of nature, your love for your art and in your love for your children you have also the highest incentive. Dear child, I wish I could make 344 MODERN JURY TRIALS. your path straight and smooth, to the highest success ; but only that success is highest to which we make our way with pain and toil." This list of gifts for the stage was not true in Mrs. McFar- land's case. She had none of the talents or requirements for the stage. It was simply a statement meant to work upon her weak- ness, and it did. Then she tells her, "If you do succeed in making an engagement, I shall not have one shadowy fear of your his- trionic success, and I shall really feel that I have done some good in the world a condition of feeling which I have often felt to be unattainable." Commenting on the intercepted letters from Mrs. Calhoun to Mrs. McFarland, he said : ******** It is enough for me to show that as a husband he had a right to speak in reference to the associates of his wife. She then goes on to say : " It is profanation for you to stay with that man. You shall not ! No woman ought to put her woman- hood to open shame, as you have been forced to do for years." She never knew her until January, 1866. "It is most cruel, most devilish. You cannot work ; you cannot advance ; you can make certain of no future for yourself and the children, while you stay." Then she goes on to say : " My darling, you will leave him scath- less ; the world is more generous than we think about those things. Every thoughtful man or woman will justify you, and you can shake off the shackles and work with free hands. It is dreadful to have you fight against such odds. I think you could live yourself and Percy for what you earn now, and if you can only be free, so that you can improve, your salary will be increased. It is wonderful that you have been able to do anything with your disabilities, and I do think that now you may do so much. Oh, do leave him, my darling ! " See what a prayer that is. " Oh, do leave him, my darling ! It is so wrong that you should stay with him." Friday Evening. "Mr DARLING We have just received Mr. R.'s letter." The wretch was so exultant over his victory that the first thing he did was to write to those who would be most gratified at knowing the fact. " I am so glad that you have left M. Do not, I beseech you" here is prayer all the time "Do not, I beseech you, return. Do not let any weakness of mercy possess you." What is it that makes a woman angelic ? It is the tenderness of her heart. It is the readiness with which her eye suffuses, and dropa the tear of pity and sympathy at human suffering. Here she exor- McFARLAND-RICHARDSON CASE. 345 cises from her own bosom that celestial element of woman's char- acter, and asks this wretched, erring woman also to expel it from the limits of her own breast. "Do not let any weakness of mercy possess you.*' Don't forgive your husband. What a remark that to make. She wrote to a woman she knew was likely to forgive him. But she says : Don't forgive him ; don't extend to him any mercy. "It is happy that the stroke has fallen, no matter what heart-break come with it." He (pointing to the prisoner) sits here to-day as the result of that heart-break. That broken heart has placed him where you now see him." " I could be glad that you suffer, if your suffering would keep you away from him. My darling, for whom I would die, do not so wrong your womanhood as to go back. You must not ; shall not ! When I come back you shall come straight to me and stay. I will have it so ! I will come to-morrow, if you need me. Write me, my darling, all things ; even if you are distracted write." She knew that the woman, then, had not given up all love for this man, but she had determined she should, if it was in the power of her persuasion to accomplish that result. I do not mean to read more of this letter than the final portion of it ; it is this : "All my heart is yours. Let Mr. R." she turns her then over to Richard- son "Let Mr. R. help you. He is good and strong. Stay where you are until I come, then come to me, my darling." Read these letters for yourselves, gentlemen of the jury, and put your own construction upon them. One more letter, and I have done. I am not afraid, for I am emboldened by my oath to do it, to read these letters, and let them carry their own com- ments. This letter is not dated, but it was written in February, 1867: " MY DARLING I suppose you must be snow-bound, as I am, and I send a good-morning. Lillie and Junius pronounced your Lady Capulet better than Mme. S.'s Juliet. There is incense for genius. I shall work all day, and be ready to help you to-morrow." Gen- tlemen, tell me the meaning of what I am now going to read to you, and I ask the court to attend to it while I read it : " Sacrifice yourself by going to Hennessey's, or in any other way. My fate cries out, and informs me that I wish to know him ; really, to get at him. I am quite sure there is something behind his gray eyes and mobile face. I don't like knowing people indif- ferently." 346 MODERN JURY TRIALS. Does not that mean this? "You go to Hennessey's, make hia acquaintance, and then introduce me." Is that a false construc- tion of it? If it is, I desire to stand corrected. I have always regarded this as a note which should never be offered to the public eye, and I have only consented that it be presented to the public, under a sense of duty that satisfied me I otherwise would be traitor ous to this man. Let me read it over again, if there is a possibility of mistake about it : " Sacrifice yourself by going to Hennessey's, or in any other way. My fate cries out and informs me that I wish to know him ; really to get at him. I am quite sure there is somthing behind his gray eyes and mobile face. I don't like know- ing people indifferently." "There are just three persons who are much to me in the flesh." They say that those initial letters are "You." There may be a doubt as to whether they are " J. R. Y.," but they are a man's initials. If you read this letter, you will find that it is not a female, but a man, she refers to. A word, gentlemen of the jury, upon this intercepted letter. You have heard it read over and over again. It would be a waste of time to read it to you now. My construction of it is this: That it refers to a perfect system of philosophy, professed in and prac- tised by this man Richardson. You will perceive and almost the outset of the letter shows it that the sooner he went to his grave, if this was his doctrine, the better for society " Don't be disturbed about your family, little girl. Families always respect accomplished facts; my hobby, you know. I once outraged mine." Here he implies that she has outraged hers. She had no cause to leave this man, nothing of the kind. He continues: "I once out- raged mine a great deal worse than you ever can yours, and they are the straightest sect of Puritans; but time made it all correct." I ask you this: Does he not here concede that in leaving her hus- band she outraged her husband ? But he tells her that the iniquity of the outrage is really to be its success; that the world do not look to how ends are brought about, so long as they are brought about. " Accomplished facts " are all the world wants. If this was the belief of this Mr. Richardson and that it was we have his own handwriting was he a fit man to live in society, if there was any legal way of depriving him of his life ? What man could be more dangerous than the man who would say: "No mat- ter how I get your purse, no matter how I get your wife if I fail, I may be infamous; if I succeed, I am all right." The counsel of this man must put his case before you. The court will tell you that that is their sworn duty, and they cannot McFARLAND-RICHARDSOISr CASE. 347 B !i rink from it, no matter whom it strikes. We are not asked to j. 'esent to you our own completions. We are bound to tell you this TL An's case, and to place it before you as he gives it to us, though it strikes the first and the tallest in the land. What right have I, in the performance of professional duty, to consider into what breast I strike a pang, so long as my act is called for by my pro- fessional oath. What would you think if, when you sought to pass that door, you were warned by those who are connected with the pro; ecution, that if you rendered a verdict in favor of this man, you vould be shot to the earth ? What would his honor upon the benc \ think, if he was told to-day that if he did not charge this jury Against the prisoner he would affront those powerful influences that itand behind this prosecution, and that he could expect noth- ing but immediate death? What more solemn sanction binds him than n e ? What more solemn sanction binds you than me ? I have tal/en an oath to defend this man before this court and jury, and to p ace before you all the material he has put into my hands, which I ran possibly make available for his deliverance from this charge. What alternative have I but to do precisely as my oath of office demands spread out the facts and argue upon them to you precisely as any other lawyer at this or any other bar would do? Mr. Wai eman says he slept with Mr. McFarland, at his house in Twenty-six^h street, on Sunday night, November 14, 1869. After they had been in bed fifteen or twenty minutes, he spoke to him, and received no answer. After they had laid down about half an hour, he started up in bed, raised his hands, and exclaimed: "My God! my God! where is my child ?" A moment after he laid down ag^ain, became restless, and then wakened. Mr. Wakeman went to O t * Woodside with him on the eighteenth of November, to get tidings of his child. The defendant told him they were trying to get Danny away from him, and that was the ruling idea in his mind. Witness first went to a grocery store to inquire about the child, and brought back the report that Richardson was married to his wife. Mr. McFarland nearly fainted, cried, and was frenzied. The witness then went and made further inquiries, and reported to him the result, which was that Richardson had been there the day before, and had gone to Massachusetts, where the mother and Danny then were. Dr. Ward, in speaking of his dreams, said he told him he had dreams and visions about his wife and children, and that he must have them back or die. Dr. Miner says he frequently spoke to him about his dreams. He would ask him how he passed the night, and he would say: "My God ! I passed a horrible night; I 348 MODERN JURY TRIALS eonld hear the voice of my little boy." He hears that roice now, and will hear it ever, until he is, as he should be, in the full posses- sion of his rights as a father. He was mad, at the idea of being separated from his child. He almost became deranged at the sug- gestion. Where is the man, no matter how willing he may be to lay down or relinquish his marital rights, who is willing to give up his natural property in the issue of his own loins ? To Dr. Miner he frequently spoke about his dreams, and on one occasion said: " My God ! my God ! I have passed a horrible night. I have heard the voice of my little boy calling to me, I could see my wife in Richardson's arms. I sprang out of bed, trying to catch the villain by the throat. Then I woke in a tremor and per- spiration." I will here call your attention, gentlemen of the jury, to some very pointed testimony of some of the lay witnesses. Mr. St. John Green, one of Richardson's Boston counsel in the fight to keep this father away from his children, saw McFarland between April, 1867, and the close of the year. He said he appeared to be near the border-line of insanity. He had a wild look, and seemed as though he was on the point of disturbing the habeas corpus pro- ceedings, when present at them. Edward K. Phillips, another of Richardson's Boston counsel, said that during that period McFar- land behaved like a madman. His conversation was very painful. He was always going over his griefs. The witness mentioned this fact to his senior counsel, and left it to him to suggest to the court that McFarland was unfit to be the custodian of his children, from irrationality. Then the evidence of Mr. Eastwood, an intelligent merchant of this city. He had an interview with McFarland, near the time of this shooting, and he tells yon: "My impression and opinion was that he was not in his right mind. I regarded him as a monomaniac." Mr. Peter Gillespie, another witness, had an interview with him, in May, 1868, and he says: " I thought him perfectly crazy." He told this witness that he would be at his funeral in three or four days that he intended to end his existence; that he could not live. Then there is the evidence of Mr. Cough- lin, who was in the same office with McFarland, in June, 1869. Out of consideration for him, he was treated with attention and delicacy in the office. The duties they assigned him required no mind. They gave him such things to do as required little memory and thought. Yet he would forget all about them. They then put them down on paper, bat- he would still forget. He wa understood to be in great trouble. On one occasion when Cough- lin saw him, he was more nervous and excited than ever before. McFAftLAND-RICHARDSON CASE. 349 He said: "My wife has got a divorce, and she is going to marry Richardson. He is going west to start a newspaper, and is going to take my wife and child with him." On this occasion he insisted on accompanying Coughlin, and he could not shake him off. His conversation was very incoherent, and it was sometimes impossible to make head or tail of what he was saying. Then there is the testimony of Mr. William Marsh, who was with him from January, 1867, when he was appointed to a position in Mr. McElrath's office, down to September of the same year. He says that, until in Feb- ruary, he was a sociable, kind-hearted, entertaining man; then all of a sudden he changed, and in March, 1867, he commenced talking to himself, and when a person took his hand to shake hands with him, the fingers were contracted, so that you had to pull them out to shake hands with him that this was after he secured the inter- cepted letter, and that he had a horrible expression of the eyes. Ten days before the shooting, Mr. Marsh met him by St. Paul's church; and he was then in such a state of nervousness, he did not dare to leave him in the street. He said to Mr. Marsh: "Lend me thirty dollars. If I had it, I could upheave the universe; but I have no friends and no money, and I can do nothing without it, as everybody is against me." He said he could do nothing against Richardson without money. The next evidence I shall call your attention to is that of Mr. Bowen, the blind preacher, and how strongly does it speak as to the condition of this unfortunate man, when it could be appreciated by a man without eyes! Mr. Bowen knew him in Newark in 1842, when he was a harnessmaker; and he told you how McFarland employed his leisure hours in study. He met him afterwards, in Boston, in 1867, during the pendency of the habeas corpus proceedings, and he says : " I noticed a peculiarity in his voice that I had frequently noticed in persons in insane asylums." Then we have the evidence of Mr. Isaac E. Clark, one of the firm of Sanford & Le Barron. He testified that such was the state of McFarland's mind, they did not dare let the judge in Massachusetts see him, for fear both children would be kept from him. It was under the apprehension of that danger a compromise was made, and this wicked woman secured the younger child, and he was allowed to retain only the elder. In fact, time will not allow me to go over all the pointed testimony adduced here to show the insane condition of this man's mind. We have produced forty-one lay witnesses and three medical experts for that purpose forty-four witnesses in all. Almost four juries, more than three full juries have taken their oaths in this case that this man is not responsible for his deed. 350 MODERN JURY TRIALS. Let me, for an instant, gentlemen of the jury, refer to the medical testimony adduced for the defense. We have examined Dr. Hammond, Dr. Parsons, and Dr. Vance three of the most dis- tinguished men, in their own peculiar line, in this country. Dr. Hammond is, I understand, considered to be at the head of this department in this country. I have conversed with medical gen- tlemen on the subject, and they concur in according him that standing. He and Dr. Vance were witnesses against Reynolds, who was recently executed in this city, and but for their testimony he would have escaped the gallows. They both pronounced against the insanity of Chambers, who was lately tried at a court of oyer and terminer, held in Brooklyn, and acquitted as insane, although Dr. Vance alone gave evidence, as a witness, for the prosecution. It has been proclaimed, since that acquittal, that Chambers, in a glorying spirit, boasted that he managed to humbug every physi- cian but Dr. Vance. Whether Dr. Hammond and Dr. Vance are right or not in the testimony they have given as to Mr. McFar- land's mental condition, it is clear, from what I have stated, that they are not the men to say what they do not fully believe, and that when they say a man is insane, they are worthy of credit, because, though they were contradicted in the two instances to which I have referred by the judgments of other medical men, events proved that they were right. As to Dr. Parsons, I may state to the jury that he is at the head of one of our public institu- tions, and one of the most expert alienists in the land. The testi- mony of Dr. Hammond is substantially this: The ailments of Mr. McFarland had produced violent congestion of the brain, and when the brain is in that condition, it is only necessary for some power- ful and sudden emotion, related to the main cause, to act upon the congestion, to precipitate an individual into some such act as is charged against the prisoner at the bar. His evidence was, that when the prisoner's brain was in that condition Richardson hav- ing been the cause of all his wrongs and sufferings the very sight of him would be all that was needed to make him perfectly insane, and betray him into the act which he then and there per- formed. Dr. Hammond says that normal persons obey the intellect that is, act upon reflection. There you find reason, memory, judgment the analyzing and deciding powers of the mind. There are four departments to the mind the perceptions, the intellect, the emo- tions and the will. A man may be partially deranged, in the derangement of any one of these functions of the mind. If a man 's deranged in his volition or will, he is as truly unaccountable for McFARLAND-RICHARDSON CASE. 351 the act performed under that impulse, as if he was completely and radically deranged. Insanity has been defined to be, for the pur- poses of this trial, an organic disease, destroying freedom of mind and action. As to the threats which Mr. McFarland is said to have uttered against Richardson, we have had forty-one witnesses upon the stand for the defense, who have spoken of his violent manner, for more than two years past, in alluding to his domestic troubles ; but not one of them testified to ever having heard him utter a single threat against the libertine. I want you here to take notice that not one of those witnesses heard him uttor such a threat. Still, a handful of witnesses are brought here for the prosecution to state that during this period he uttered the most atrocious threats against the deceased. The best evidence against that testi- mony is the fact that no account of these threats reached Richard- son himself, nor was there any complaint made at a police office in consequence of them. Sinclair testified to a threat but it was a conditional one in regard to and dependent upon Richardson's marriage with his wife ; and the man Howell, who testified in regard to other threats, stands stamped before you as utterly unworthy of belief. We have proved to you, by the evidence of two respectable witnesses, that he is so perfectly infamous as to be utterly unworthy of credit ! In a few moments, gentlemen of the jury, I expect to conclude, You must have been satisfied, from certain suggestions made by the counsel for the prosecution in questions put by them to the different witnesses called on the part of the defense, that some person was prompting them, and communicating to them facts that could only be known by two persons, or that would only be likely to be known by two persons the prisoner at the bar and his wife. If you will pass over other incidents of this trial, in your memory, you will unquestionably be convinced that the private counsel for the prosecution has been directly or indirectly in conference or communication with Mrs. McFarland, in order that he might have a cue for the examination of the witnesses for the defense. What more horrible thing ! That this wife, in addition to what she has already done, should nevertheless try to saddle upon this husband and father the cruel fate designed to be the goal at which this prosecution is to arrive. I have had to hurry, gentlemen of the jury, through the latter portion of my remarks. I will rely upon your recollection of the evidence. I have sufficiently refreshed it in many particulars to enable you to supply such deficiencies as may exist in that part of 352 MODERN JURY TRIALS. my performance, and, in fact, to supply such deficiencies as may exist in the whole of my performance. I know that you are over- come by the length of time I have addressed you. I am satisfied the court is worn out ; and I know that I almost begin, physically, to sink under the ordeal through which I have passed. I have been greatly assisted by my noble professional brother (Mr. Gerry) in this case. He and I had the honor to be associated on a previous occasion, when our labors were great, but in this instance they have been much greater than they were on that occa- sion. I feel under the greatest obligations to him for his aid, and it would be doing the greatest injustice to him were I not to state publicly how much of his time and talent he has spent in the pre- paration of this defense. Certainly, no case ever tried in this country has taken more labor in its defense than this one; and, however much credit has been given to me, it is but due to the cause of truth to say of many of my performances that the credit of them, at least, should have fallen almost exclusively upon the shoulders of my learned associate. For months sacrificing interests beyond conception, he has clung to this case with an ardor I have never known to be equalled by any counsel with whom I have had the privilege of being associated. If, in passing from the sphere of my duty on this occasion, I have gained always the same grati- fication for him he has gained for me, my satisfaction will be beyond all measure. The position you occupy, gentlemen of the jury, is a proud one. Little did you think, when this event first happened, that you would be called upon to assume the responsibilities of such an occasion. Meet them like husbands fathers men. The highest interests of society are involved in this proceeding. Beware how you announce that the desecration of the marriage relation creates no other emotion in a manly bosom than that of mere passion or revenge. By all the considerations which hallow it in your eyes, do not thus lightly estimate it. A home in ruins ! How distressing the desolation 1 All sub- lunary happiness is short-lived, at the best. That of the family circle is not exempt. One by one its members may be summoned to other spheres to take part in other cares to put on other rela- tions. Death may enter its portal, and receive from its number its victims. In all this there is pain, but grief is endurable in any form but that of dishonor. Donnis arnica, domus optima Home is home, though never so homely. The best home for us is that which receives us with the warmest heart, and welcomes us with the most cordial hand. Intra McFA^AND-RICHARDSON CASE. 353 paternos parietes within the walls of the family mansijn. How happy, how joyous are these words ! At their mention does not the memory revert, involuntarily, to the abode of our early days, where, gathered around the family fireside, in the interchange and correspondence of love and affection, father, mother, brothers and sisters constituted a little community in themselves. Who, if we could, would not be a child again ? To you are committed these sacred interests. Upon you are rivetted the eyes of an anxious public. You are here to reflect in your action the value you place upon your own hearths, and the affection with which you regard your own firesides. When you return to them from this place, may it be to bear to them the glad- dening tidings that they cannot be desecrated, with impunity, by the tread of the adulterer. Let those helpless innocents, who lean upon you, feel that they are still safe that they still enjoy security. The purity of woman is not to be questioned. Her virtue is a tower of strength. It has ever proved itself able to withstand the strongest and most persistent assaults. Still are we not taught daily to pray that we may not fall into temptation ? In her appro- priate and exclusive department may she ever illustrate her scrip- tural portraiture and may it ever be the highest ambition of every wife and mother to have it said of her, that " she perceiveth that her merchandise is good; her candle goeth not out by night" that "she openeth her mouth with wisdom; and in her tongue is the law of kindness" that "she looketh well to the ways of her household, and eateth not the bread of idleness" that "her child- ren rise up, and call her blessed; her husband also, and he praiseth her" and that "her husband is known in the gates, when he sit- teth among the elders of the land." Let those who dare dishonor the husband and the father who wickedly presume to sap the foundations of his happiness be admonished, in good season, of the perilousness of the work in which they are engaged. As the result of your deliberations, may they realize and acknowledge the never-failing justice of the divine edict, that jealousy is the rage of a man and that he will not, can not, must not, spare in the day of his vengeance. Acquitted, and counsel heartily congratulated. 89 354 MODERN JURY TRIALS. THE NEWLAND-EVANS HOMICIDE. Trial at New Albany, Tnd., May, 1866. HISTORY OF TUB HOMICIDE. In the town of Bedford, Indiana, there were living, in the month of February, 1866, two men who were extensively known through- out the state of Indiana. One of them was Dr. Benjamin Newland, the other Prof. Madison Evans. Both were men of conspicuous ability, and each was the head of a family. The former was by several years the senior of the latter; and the ages of their children bore relation to their own. The professor was a teacher and a minister of the gospel in the Christian church of the town ; and the doctor's family were members of his congregation, and some of them of the church. The eldest of his children, a daughter, well educated, brilliant, and good looking, had been away from home at a boarding school near Terre Haute; and returned upon the even- ing of the homicide out of which grew the trial in the course of which the following speech was delivered. The facts developed in the trial were voluminous, and, in some important particulars, con- flicting; but in sum made the following case: Dr. Newland left his house in the fore part of the night of March 5th, 1866, and before the people had retired; and repaired to his office, where he armed himself with a revolver and catling from his amputating case; and proceeded at once to the residence of Prof Evans. The knife was rolled in brown paper; the pistol not visible. When he arrived there, the room near the side door was lighted, and he passed to the front door, where there was no light visible. Here he knocked; and Mrs. Evans came with light in her hand and opened the door. She was then in a delicate condition. The doc- tor, who had doubtless expected to meet and kill the professor the moment the door opened, had to change his plan from action to inquiry. He accordingly asked: "Is Mr. Evans at home?" She told him that he was not; but had gone into town to correct the proofs of a speech he had delivered a short time before, and which was being published in the county paper. After some further conversation, Mrs. Evans asked the doctor whether he had business with Mr. Evans. He answered, "Yes, madam; I have business with him." The whole interview was brief: and, at the time, excited no suspicion in the mind of the wife that the doctor intended any harm to her husband. After thf homicide, however, NEWLAND-EVANS HOMICIDE. 355 she did, indeed, think that there was something bodei'ul of evil purpose in the manner in which he emphasized the words, " I hav6 bitsiness with him." But this was not marked at the time; and he returned towards the town, and she to her room. There lay between the town and the professor's house a deep hollow, which required the doctor to go down one hill and up another. He was heard to pass down the hill with rapid strides and loud breathing. He had passed the rill that ran between the hills, and reached the fence on his left that bounded the road lead- ing up to the town, when he heard some person coming down the hill on his own side of the road. He stopped at the corner of the field and called out: "Who comes there?" He was answered, "Evans." He said to Evans, before shooting, "Do you know my daughter Helen ? You have seduced her, and I intend to kill you." And telling a friend, the next day, how it proceeded, he said: "I then shot Evans, and he did not afterwards rise. He begged me not to kill him, but I told him I intended to kill him." The wounds of the deceased were numerous and of the most horrible and deadly character. The evidence left no doubt that the doctor was the perpetrator of the homicide. Indeed, it was not denied. The defense was insanity. It was attempted to be proved that at an early period of his life, the defendant had suffered mental aberration ; and threatened to commit suicide. But it was shown that that condition had resulted from a chronic disease of the liver, of which he had recovered. All the other evidence tending to prove the defense, consisted in the daughter's statement that the deceased had seduced her several years before, when she was not more than fourteen years old, and kept up a criminal intimacy with her ever since ; that she was at the time of the homicide preg- nant by him ; and that he had never, down to the moment of her confession to her father, offered her any assistance. This confes- sion was made to her father, the defendant, on the evening of the homicide ; and just before he went out from home, to kill Evans. From home he went to the office of Judge Carlton ; and, finding it full of people and the judge not in, he waited for him on the sidewalk, conversing about agriculture until he came. They then went by themselves to the doctor's office, and held a long conversa- tion touching the seduction of his daughter, and his disposition to kill her seducer. Having given him some wholesome advice, the judge left him, promising to send his brother James to him. The speech, it is believed, sufficiently reveals both the state of his mind, and the cause of the tragedy, from this point to the close ; and the further statement of the facts are therefore omitted here. 356 MODERN JURY TRIALS. The case was transferred from the Lawrence circuit court at Bed- *ord, to the Floyd circuit court, at New Albany. This change itself was so greatly detrimental to the cause of the prosecution that but little hope of a conviction was entertained after it was taken. At New Albany the defendant had the advantage of very wealthy and influential relations, which he would not so fully have enjoyed at the scene of the homicide. The trial was set for May 6, 1866 ; and, both parties being ready, it proceeded forthwith. The evidence closed upon the tenth, and the argument on the four- teenth of May. The speech of Major Gordon, for the prosecution, was delivered May 12, 1866. It was never well reported, there being no short-hand reporter at the trial ; but the substance of the argument was published at the time in the Commercial, and, with slight and unimportant changes, is as it is here given. The defendant was acquitted, not because he was believed to have been insane at the time, but because the jury regarded him as so wronged in his paternal rights and affections by the deceased, that he had a right, by an older and higher law than that of the land, to kill the seducer of his daughter. Aud yet the course of the evidence in the case renders such views of justice absurd in the extreme. Thus, the daughter was permitted to tell the jury the story that she had told her father, touching her seduction, but all inquiry in regard to its truth, was cut off, on the ground that it was of no material importance whether it was true or false the real question being : " Did she tell it to her father ; and did he believe it ; and did it thus become the cause of insanity in him ?" And so, no evidence to impeach her was allowed ; and no question was permitted to be made whether she was seduced by the deceased, or by some one else. Of course, fair play would have denied the defendant the benefit of an argument founded upon the assumed truth of the story of her downfall. But this was not denied ; and his counsel throughout justified the homicide on the ground of his injuries, under cover of a defense that, if true, could only have excused it on the ground of his incapacity to do an act that had any element in it that was either justifiable or culpable. The charge of the court was exceedingly conservative, leaving with the jury their constitutional " right to determine the law and the evidence." As the case is developed through the graphic and ingenious argument of Maj. J. W. Gordon, a celebrated advocate of Indian- apolis, a few words may be added on his manner of trying cases. He is now about sixty, in the full possession of his vigor and determined manner, his peculiar skill and thorough analysis of NEWLAND-EVANS HOMICIDE. 357 human actions. His forte is in trying fraud and criminal cases, appearing generally for the defense. He has a singular art of get- ting error enough to reverse a case three or four times, and wear- ing out his adversary, if possible. In the famous Clem case, five trials were secured, largely through his influence. After a careful selection of his jury, he addressses one man at a time, like Choate, gradually passing to every one on the panel, witn a joke, story, illustration, or reason peculiar to his trade or employ- ment. His closing appeals are graphic and convincing. In this trial we find many touching and beautiful passages, in apt and suggestive language, such as, " I stand for the law, that will survive when we have perished and passed away; that is rela- ted to each of us, and defines the rights we shall enjoy, ere we are aware, or have passed the gates of life. It graciously meets us with friendly arms, leads us forward with paternal hands, teaches and trains us for our duties to others, goes with us through every stage of our earthly being, defends our graves from desecration, and our dust and ashes till the coming of the resurrection, and thus makes so sacred our final repose that the sweet rose planted by the hand of affection, or the wild flower blooming over our final rest, shall not be destroyed by the ruthless hand." A counsel once used this picture, which I give from memory, showing a separate point for a separate juror. It is both a vivid and exciting word-painting, and resembles Mr. Gordon's style. " I can see men on this jury who remember that sultry Sunday morning when we were tired and had slept late, when the enemy came upon us like a whirlwind, scattering fear and panic in his course, while our half-dressed company hurried to their saddles and saw a plain man, riding at a rapid gallop, on a big, black horse, along the lines, sending one man to the right, one to the left, one on one message, one on another, and before we could think, they were all in their places, when the command rang out on the clear morning air, ' Charge ! ' and we wheeled into line, and with a des- perate struggle, turned back the enemy that in a quarter hour would have driven all in the river! There was no rest for anyone that day. All day long we fought in smoke and dust, without relief or rations; and late in the afternoon I saw the man in slouch hat and dusty blouse galloping again up a hill, and raising his hat in mid-air, he said, 'Charge! double-quick ! Charge!' and we charged, and won ! And when I looked up into that plain, strong face, on beard begrimed with sand and smoke, and saw his beaming eyes full of satisfaction at the work we had accomplished, I said, * That is the handsomest face I ever saw I* That was Grant 368 MODERN JURY TRIALS. at Shiloh. My boy was in that battle, was shot, went down to an early grave. Had he lived he would have been nearly the sue and age of this boy (the one he was defending), and ever since that awful day we have set the vacant chair and placed the plate at the table, but we shall see him no more, till the great day hereafter. Though we mourn that loss and feel for our boy, how would such a death compare with a death in prison ? Ah, gentlemen, death is never so terrible as dishonor. It is an awful death to be buried alive in prison walls ! to walk the narrow halls and beg for liberty, saying, *O, how sweet the air smells outside to-day; I never knew the sunlight was so good before! ' Yet this is prison life, and prison death! Can you comprehend it? Can you understand it? You that think the weeks are long, while you serve your state and stay away from home ! You that long to see your flocks, your family, and even your favorite dogs, and count the days till you shall be free to go and gather up your little boys and girls ! Think of it, men ! Think of a hundred weeks, two hundred, three hun- dred, a thousand weeks, and no relief! Shut out from light! Shut out from home! That is a prisoner's fate. Such is a prisoner's home. * * May the good angel of mercy keep your child and mine, and this poor boy who is after all, somebody's boy from such a dreadful death! " The surprise is all the more touching, as it comes in a way to convince and persuade a jury. SPEECH OF MAJOR GORDON, OF INDIANAPOLIS. MAY IT PLEASE THE COUKT: Gentlemen of the Jury I fully agree with Mr. Davis in regard to the importance of this case. In every respect it is an important case. The interests staked upon your verdict, whether we regard it as affecting the defendant or the public, are immense. On the one hand, all the defendant is, or has, or hopes, hangs upon your verdict; and, on the other, the just administration of the laws, the safety and sacredness of human life, the maintenance of social order, and the prevention and punishment of murder the highest interests, and, indeed, the indispensable principles and conditions of society and life. It is impossible to exaggerate the importance of this case. Some things have been said by my brother Davis, which I should have been glad if he had omitted. I do not attribute any personal or improper motive for saying them; but, uttered without the qualifications which I am sure he must have intended, and without NEWLAND-EVANS HOMICIDE. 359 which they would be both personal and insulting to all of us who differ with him in our views of the case the guilt or innocence of the defendant they deserve a passing notice. I shall give them that notice, therefore, which I think they deserve, before entering upon the discussion of the case on trial. I regard them as straw, or chaff, or dust, thrown into the case, by the gentleman, for the purpose of distracting your attention, confusing your minds, and so rendering them incapable of the right apprehension of the real questions involved in this trial, and of rendering a fair and just verdict upon them. In the first place, he has assailed some of the state's witnesses, because they have contributed money to carry on this prosecution; and has lavished upon them abuse that implies that, by so doing, they have violated some duty imposed by law, or made obligatory by custom or morals. Is it so, indeed? Shall the citizens be told by the ministers of justice, in the presence of our courts and juries, and of the public at large, that, no matter what atrocity may hereafter be committed, no matter how poor and weak the friends of the victim may be, no matter how public sentiment, and law, and humanity may be outraged, he must not, under pain of forfeiting his character as a fair and honorable man, as a true wit- ness and good citizen, open his purse, or raise his voice or his hand to bring the malefactor to trial and justice? If this be so, our wit- nesses are before the court, whose duty it is to repress such offenses by inflicting due punishment upon each offender, and to that end it has full authority. But I aver that they have not offended by so doing. They have but done their simple duty. Had they don less, they would have forfeited their character as good and public spirited citizens. It is the duty of all men who live in society to use all just means to prevent its laws from being violated in the first instance; and when they are violated, to bring home to the violator the penalties which they have prescribed. Those whom the gentleman has so cruelly assailed have been guilty of no other fault but what is thus imposed upon all as a duty. Instead of meriting censure, they deserve approbation and praise. Instead of forfeiting your confidence as good and true men, they have thus given you a new and weighty pledge that they are worthy of it. But the gentleman did not stop with his assault upon our witnesses and others who supported this prosecution. He could not allow us, who have accepted a place in the prosecution, to pass without censure. After telling you, with his accustomed modesty and man- ners, that "no honest man can say that Dr. Newland has commit- ted any crime," a dozen or more times, he went on to say, by impli- 360 MODERN JURY TRIALS. nation, at least, if not in direct terms, that, in his opinion, it wa wrong in us to ace-apt a fee to prosecute any man arraigned for murder. He even told you that he had never done so; and referred triumphantly to the example of the very justly celebrated John Rowan, of Kentucky, as the standard of professional ethics upon the subject. I always admired John Rowan, while he lived, and find no fault with his views of duty, in regard to prosecuting men charged with crime. If he thought it was wrong for him to do so, then he was right not to do it. Every man must in matters indif- ferent in law choose his own cause, and determine what he will and what he will not do. But this leaves me equally free to choose mine. And this I have done hitherto, and shall hereafter do, with reference to my own convictions of right and duty. As for the learned gentleman, I know not what may have been the motives that determined his course. He may never have been offered a fee to prosecute any one; or he may have declined it, because it was not satisfactory in amount; or from other motives of expediency. He has not told us what sacrifices he had made; and until we know, the facts that have shaped his career, his practice, and what he has revealed concerning it, are worthy very little consideration as fur- nishing an example worthy of imitation by our profession. I appeal to the court to say whether it is wrong for an attorney to accept an employment to proseoute a person charged with crime ? I am a sworn officer of this court sworn to discharge my duties faithfully and to the best of my abilities. Have I violated my oath? Have I failed in the performance of my duties, by accept- ing this employment and the part I have taken in this prosecution ? If so, I am amenable to censure and to punishment. Your honor sits here to see that we do not violate the law, by any public omis- sion of duty, or commission of wrong. My action, my whole con. duct in, and connection with, this prosecution has been open, pub- lic and known to the court. If I have committed any wrong which any genllemau has any right to refer to or criticize here, that wrong is equally known to your honor, as it is to him; and I now demand, for that wrong, the censure and punishment at your hands which my offense deserves. It is your right, it is your duty, to inflict them. I pause for your judgment. The COURT Major Gordon, you know you have done nothing wrong. Go on. I have, then, done no wrong. I am subject to no censure from the court. By what right, then, does the gentleman presume to question my conduct ? With what propriety does he even allude NEWLAND-EVANS HOMICIDE. 361 to it? It is out of the case; and should be left out of ail considera- tion in its discussion and decision. It has been dragged into it for no lawful purpose; and to any man less kindly disposed than myself, would be regarded as offensive. What right has he to cen- sure what " the law allows and the court awards " to me as a right ? He is my senior in years, and as such I respect and honor him; but in my official relations and duties here I am his peer, and deny his right to censure me for choosing the duty that I shall perform, or the manner in which I shall see proper to perform it. [Here Mr. Davis apologized for what he had said, and disavowed all intention to be offensive.] Gentlemen, we live in a land of law. Our law is the express will of the people. It is enforced by the government, which is the agent, the creature of the people in other words, the people organ- ized. But what is the law, the will of the people, which is the only sovereign we obey ? Where does it abide, and what does it do ? It is the body of principles and rules, which the people have adop- ted and enacted for the establishment of rights, and the preven- tion, redress and punishment of wrongs. It is everywhere, like the atmosphere which we breathe. It is the vital air, in which all rights live, and it is mortal to all wrongs and crimes. It is full of life and power to preserve life, and to make it safe and sweet to prevent all crimes against it before they are committed, and to punish them after they have been accomplished. It is the law that protects all in all places; and pursues him who violates it to the injury of others, to avenge them. It teaches all to avoid collisions and harm on the highways, by admonishing each " to keep to the right." It is so common, so universal, so essential, that, grown used to it, it is only in its violations, and the retributions with which it follows them, that we realize its presence, at least, in so far as our natural rights and duties are concerned. Here, in this court, it is visible in its officers, the agents through whom its author, the People, have chosen, to give it practical expression* application and enforcement. It has brought us together from different parts of the state, and made us, for the time being, joint laborers in applying its general principles and rules to the particu- lar case, in the trial of which we are engaged. It is represented in his honor upon the bench, in each of you, and in the counsel engaged on both sides. Nor is it inconsistent with itself in the duties which even we sustain to it, or to the part we perform in the trial. On the contrary, if we be faithful and fair in the con- flict of opinion and discussion to which we are here called, our 362 MODERN JURY TRIALS. labors * ill tend to lighten yours, and so make it easier for yon to reach a right verdict. The law was before us all, and will survive, when we shall have passed away. It ante-dates all existing societies, and will remain when they shall have given place to new forms. It is related to each of us before we know that it exists; and defines beforehand the rights that we shall enjoy and the duties that we shall perform. It looks forward with prophetic vision and paternal solicitude, and provides for our safety and well-being, before we have passed the gates of life. It graciously meets us at our coming, and folds our naked and helpless infancy in its pro- tecting and motherly arms. It recognizes our rights, and shields them from invasion or harm, long ere we have any knowledge of their existence, or any power to defend them. It leads us forward, supporting our tottering steps, until the first duty is laid upon our shoulders. This it imposes with due regard for our weakness, and with a gentle hand. It teaches and trains us in each stage of our being for the duties of that which lies next before us. In a word, it goes with us through every stage of our lives, from the cradle to the coffin, and when we are buried defends our graves from des- ecration, and our poor dust and ashes from outrage and insult. And so it makes sacred the place of our final repose until the morn- ing of the resurrection. It will not allow even the rose, that the hand of love may plant, or the wild flower that may bloom there, to be touched or destroyed by any ruthless hand. The law grows out of the great and generous heart of the Peo- ple. It is framed and adapted to their wants by the common mind. It is their will, expressed in the manner and form which the consti- tution has imposed for their security against oppression from what- ever quarter. It must, therefore, rely upon the People the order- loving, law-abiding to keep it strong and steadfast, against the disorderly and the disobedient who strive to destroy it, and to abol- ish the social order and personal safety and happiness it was ordained to establish and maintain among men. He who violates it, finds his offense measured and its punishment prescribed; and society, and its creature, the State, and all who exercise its functions, must abandon their duties, and set at naught the principles upon which social order depends for its existence, before they can allow the guilty, on the one hand, to escape without that punishment, 01 before they can, on the other, allow it to be inflicted on the inno- cent. I stand before you to-day for the law. I stand against those, and those only, who have broken it, and who ask you to break it. NEWLAND-EVANS HOMICIDE. 363 I stand opposed to force and brute violence, and ask that the law may be enforced for their suppression and punishment; for upon the law and its faithful enforcement depend all the interests of the people of the individual and community at large. If we abandon the law, we shall find ourselves at once adrift upon the great ocean of chance and uncertainty, driven by the winds and the waves of individual passion and interest against each other; and, like the mis- erable victims of shipwreck, sinking each other into the soundless depths of wretchedness and woe. We must not, therefore, abandon the law. It is the ark of safety to us all. Without it, life itself is a negative birthright. But here, in our present relations, we have no existence apart from the law. As judges, lawyers and jurors, we are its creatures. It is to us the breath of life. It is our creator, and has exacted from each a solemn oath of allegiance. We have taken that oath; and each of us stands bound by it, not only not to violate, but to maintain and enforce it; and this all must do, let it crush whom it may crush, or save whom it may save. I only ask you to perform your vows, when I entreat you to stand strongly up for the law. It is our only bulwark against the return of brute violence and barbarism. Let us see to it that it is kept strong and steadfast to-day; that it may so abide to-mor- row, and forever. Seduction and murder stand alike, branded by the law the will of the people your will the will of us all as it has been written for our direction in respect to wrongs to be avoided ; and, when committed, to be punished. According to our law, there are two kinds of seductions : one criminal and punishable as a felony, the other a mere private wrong to be compensated in damages. Where seduction has been accomplished by an unmarried man, under promise of marriage made to an unmarried woman, undwr the age of twenty-one years, and who was at the time of good character for chastity, the law punishes it as a crime ; but it is so careful of the rights of the defendant, even in this case, that no prosecution can be maintained unless the woman's testimony is cor roborated by that of other witnesses. But when, on the other hand, the seduction has been accomplished without a promise of marriage, whether by a married or an unmarried man, the law allows no criminal prosecution. It only gives the parent of the girl or the girl herself, an action for the damages resulting from the seduction. It is no part of my duty to-day to discuss the question whether the law upon this subject is right or wrong, nor of yours to con- sider it. That the law is so written is the only fact with which 364 MODERN JURY TRIALS. his honor, or you, or I, have anything to do in our present rela- tions. If it has been unwisely so written, it must be corrected by the legislature. In the meantime we must obey it, or involve ourselves in the sin of disobedience. It is ours to enforce, not to make the law. In our capacity as citizens we may change it, if it displease us. In that case we can elect senators and representa- tives, and send them to the general assembly with instructions to amend it. Until that can be done, however, let the law be hon- ored, obeyed, and maintained by its ministers and the people, that so the principle upon which alone a government of law is possible among men, may be preserved. But let us not, so long as we need the protection of government, abandon the only ground upon which it can stand, either by acts of personal violence, or by law- less decisions of lawfully constituted courts. Both of these methods are evil ; but the last is far worse than the first ; for it murders the law in the name of the law, and tends to bring our social and political institutions to utter ruin. Murder too is a crime a high crime next to the highest known to the law. Upon proof of the fact against any citizen, before a proper tribunal, he is subject to be punished with death, or impris- onment during his natural life. This is our law ; and, if such a case is now before you, for judgment, the duty of enforcing it is upon you, and you ought not to strive to avoid it. I do not think you will. Let me say, again, if the law of murder be wrong, let us send up our representatives to the general assembly and amend it ; for, until it is amended, it is right for us, both as its subjects and min- isters ; and everything else that may tempt us to break it is wrong, let it come from whatever quarter it may come. Since it is right, and because it is right, let us stand by and uphold it to-day, and so long as it shall remain the law. We are sworn to stand by it. Shall we break our oaths, and so far as in us lies, abolish soci- ety and government ; because they do not enable us to do what might be agreeable to our feelings, if it permitted ? But we have espoused our obligations to the law, and, by doing so, have said that, in our judgment the law is right. "We have thus pledged ourselves, solemnly, before all the people, and before Him who is the Sovereign and Master of all peoples, that we will stand by and enforce the law. Shall we allow the father or brother of her who may have been seduced to kill him whom she denounces to him as the seducer? The law declares such a homicide to be murder. Shall the slayer go unwhipped of justice, when the law declares that he shall die ? NEWLAND-EVANS HOMICIDE. 365 It vitiates all principle, for it sets up the injured one as judge in his own case. It receives evidence without oath, ill the absence of the accused, and decides the case without hearing both sides. It sets up a rule that never can be equal in its application to all cases of equal injury. If it be allowed, where shall the poor, lone and unfriended orphan find her judge and avenger, when her unguarded feet have been misled by the wiles of the seducer, and she has fallen, never to rise again ? Alas ! she has no father, no brother, no avenger. And so you would establish one measure of justice for those who have friends, and another for those who are friend- less. You destroy the equality of the law before the people, and the equality of the people before the law; and annihilate at one blow both the law and the state, whose organ it is. You do more; you root up the only principle upon which it is popular for a free popular government to stand. Are you willing thus to destroy our free institutions ? Are you willing to obliterate every trace of that equality among the people which gives them their chief value ? Is this labor of destruction, the defense has invited you ? Is this wicked work, my brother Davis has persuaded you ! Suppose you shall do the thing they ask at your hands, will you put an end thereby to seduction, or murder ? Suppose you shall say that, although seduction with bastardy, and without promise of mar- riage, is no crime, not even a misdemeanor only the ground of a civil action for damages yet you will allow it to be punished by the father of her who has been seduced, with death, can you after- wards, with any show of reason or justice, deny the son of the slaughtered man the right to kill the slayer ? If so, upon what dis- tinction ? In the case of the seducer, no crime has been committed; in that of the slayer murder has been done. Shall you allow murder in lieu of a civil action for a civil wrong, and deny it in lieu of a criminal prosecution for one of the highest crimes known to the law ? If so, where shall the matter end ? But suppose you grant to the son of the murdered man, when he shall have arrived at man's estate, the right to kill him who slew his sire, can- you deny to the son of this second victim of the system you are urged to inaugurate to-day, the right to destroy, in like manner, the mur- derer of his father ? Do you not see that such a system leads to an endless series of murders ? Do you not see that the function of the law must be abolished by the new principle that has been invoked in this case; and that wherever and whenever it may be adopted, the people must revert at once to a state of savage indi- vidualism, in which each will depend upon himself for all the right8 he enjoys, and become the avenger of all the wrongs he may 366 MODERN JURY TRIALS. Buffer? The result of the adoption of such a principle may be foreseen by any one who can add two and two together. There is nothing more simple no sequence more evident. Homicide has several grades. It is either justifiable,. excusable or felonious. It is not contended here that the homicide proved to have been committed by the defendant is justifiable. The defense rests upon the assumption that it is excusable, because he was insane when he perpetrated it. If this is true, he is excusable; for the moral quality upon which alone a homicide can be either justi- fiable or felonious, does not pertain to the violence of a madman. He is excusable because he has no moral quality, and can impart none to his actions. A homicide, however atrocious it may appear at first blush, ought to provoke no resentment *in the breast of an intelligent man, or just state, when it is found to have sprung from the necessity of disease. But the prosecution is not convinced that the horrible homicide now under consideration, can be so excused. Indeed, we are satisfied that it is not only not so excusable, but is in fact a felonious homicide, darkened by every shade of malevol- ence essential to constitute a murder in the first degree. Our law thus defines such a murder: "Every person of sound mind who shall purposely and with premeditated malice kill any human being shall be guilty of murder in the first degree." We think that all the elements essential to this definition have been proved beyond a reasonable doubt to have entered into the killing of Madison Evans by the defendant. On the part of the defendant, it is urged that, upon the whole evidence, there is at least a reasonable doubt whether the defendant, at the moment of the homicide, was of sound mind. If we are right, he must be convicted. If his learned counsel are right, he must be acquitted. The whole ground of contest lies here exposed to view; and it is so plain that " the wayfaring man, though a fool, need not err therein." I do not, therefore, propose to go into a discussion of the law of homicide. It is not involved in the case. I beg leave, however, to keep before you the definition of murder in the first degree. I ask you to remember that, " if any person of sound mind shall purposely and with premeditated malice slay another, the slayer will be guilty of murder in the first degree." Be careful to distinguish the elements of this crime. The slayer must be a person of sound mind. He must kill his victim. He must kill him purposely. He must kill him with premeditated malice. If these constituents enter into any act of homicide, he who does it is guilty of a murder of the darkest dye. It is really unnecessary to descend to the lower degree of murder; or to consider the law of manslaughter at alL NEWLAND-EVANS HOMICIDE. 367 My argument must stand or fall upon the definition of murder in the first degree. Still, it may not be amiss before going into that argument to say that, murder in the second degree exists whenever a homicide may be truly characterized by all the elements of mur- der in the first degree, except premeditation. Manslaughter occurs wherever there is an unlawful killing of one human being by another, without malice. But it is unimportant to further con- sider in this case the subordinate grades of homicide, or even to glance at distinctions that lie below them and outside of the range of crime. The defendant is charged with murder in the first degree. The fact of the crime is alleged to have taken place in Lawrence county, in the state of Indiana, on the fifth day of March, 1866. The means by which the deceased is alleged to have come to his death, are a pistol shot and several cuts and stabs with a knife. It will, therefore, be necessary, before the state can demand a conviction of the defendant, that the evidence shall satisfy you beyond a rea- sonable doubt: ffirst. That the defendant killed Madison Evans; Second. That he killed him in Lawrence county, in the state of Indiana; Third. That he killed him purposely; Fourth. That he killed him with premeditated malice. If these propositions are proved beyond a reasonable doubt, then you must find the prisoner guilty. Are they so proved ? It is proved, I think, to the exclusion of all reasonable doubt, that the defendant killed Madison Evans, at the time and place, and with the means, described in the indictment. Indeed, the defense admits as much. There is no controversy thus far. From this proof alone the law implies malice, and the defendant, if nothing further is proved in the case, stands guilty before you of murder in the second degree. This much the law infers from the facts. Standing upon this inference, the law allows the state to aggravate the grade of the crime by showing that it was premedi- tated; and the defendant to mitigate it by disproving malice, or that it was not unlawful, because excusable, or justifiable. If pre- meditation be proved, the offense rises in point of guilt to murder in the first degree. If the fact of malice be disproved it descends to manslaughter. If unlawfulness is excluded, the act passes out of the dominion of crime altogether. Does the evidence mitigate or aggravate the grade of the crime which the law infers from the fact of the homicide ? To this question I invite your attention. I am persuaded that the evidence shows the act to have been 368 MODERN JURY TRIALS. deliberate. It proves premeditation. The defendant deliberately selected the deadly weapon with which he committed the homicide, His determination to kill the deceased is proved by his declaration to Judge Carlton, more than half an hour before the fatal act, that " that infernal Evans and I cannot live in the same world together;** by the connection he gives the homicide with an adequate existing cause for malice and revenge, namely: the seduction of his daugh- ter ; by his going more than half a mile in search of the deceased, armed to kill him ; by his inquiries concerning him at his own door ; and, after learning that he was in town, by his declaration that he would see him there ; and by what took place at the scene of the homicide, after he had learned that deceased was there. It was there that he asked the deceased the question : " Do you know my daughter Helen ? ** and followed it. without waiting for an answer, with the declaration : "I intend to kill you." It is still further supported by the fact that, when he had shot the deceased down in his tracks ; and while he prayed him to spare his life, the defendant answered him : " No ; I am determined to kill you." And last of all, it is established by his declaration to Glover : "I place the whole matter upon a point of honor." But go back to the moment when he knocked at the door of Evans. Does any one of you doubt that he expected to meet Evans there ; or that his determination was then fixed to kill him, if he did? He had the fatal knife in his hand, concealed in the paper in which he had wrapped it. It would have been the instrument of death had Evans, instead of his wife, opened the door. If his malice was not premeditated, if he had not fully deliberated upon the homi cide, how can you account for the calm and unimpassioned part he took in the conversation with the wife whom he intended, at the very moment of meeting her, to make a widow, by killing her hus- band upon the threshold on which she stood ? The homicide was deliberately done with premeditated malice ; and the defendant is guilty of murder in the first degree unless, upon the whole evi- dence, you shall have a reasonable doubt whether he was not of unsound mind when he committed the deed. Does the evidence leave a reasonable doubt of his having been, at that time, a per- son of sound mind ? I regard this as the only question involved in the case; and shall, therefore, by a fair analysis of the evidence bearing upon it, endeavor to satisfy you that so far from the evidence tending to such doubt, the admitted facts of the case, and even those relied on by the defense, are inconsistent with his guilt and exclude the doubt of his sanity. NEWLAND-EVANS HOMICIDE. 369 Before entering upon this discussion, I invite your attention to the alleged cause of the defendant's insanity. It is said to have been the recital of his daughter's wrongs by herself the evening of her arrival at home from the boarding-school the same evening of the homicide. It has been assumed throughout this trial, but, I think, without any reasonable grounds to support the assumption, that the fact of his daughter's seduction, the ruin of his child, the disgrace of his family, and the shame and sorrow incident thereto, caused his excitement and the overthrow of his reason, and that he must, therefore, be excused. It has been said, more than once in the course of this trial, that these considerations affecting the honor of his house, were quite sufficient cause for insanity on the part of a man so very sensitive to shame and dishonor as the defendant. But I am not persuaded that these facts are shown to have had any connection with his excitement much less to have been in any degree the cause of it. On the contrary, I hold, and shall endeavor to prove, that we must either wholly disregard the evi- dence which the defendant himself has given, or attribute that excitement, or whatever else it may be styled, to a cause far less adequate to its production ; and far less honorable to the defend- ant. What, then, was the real cause of the shock to his moral nature, which is alleged to have paralysed his will and destroyed his self-control ? What was it that left him thus irresponsible for his action ? It was not, gentlemen, in my opinion, the slander of his daugh- ter's reputation for chastity. Neither was it the belief that she had been seduced and ruined. He had known that two weeks before. Upon receiving the letter from Bishop Hill, informing him that something deeply concerning one that was near and dear to him, required his immediate presence in Terre Haute, he had gone thither upon that errand alone. He had gone upon that information, to the source whence the Bishop had derived the knowledge that led him to write that letter. He had even been informed of the condition of his daughter, by an anonymous letter. He thus knew all. True, it appears that he pretended not to believe the story thus told him; but he was told, at the same time, that the faculty of the school where she then was, believed it to be true. Whether he believed it or not, the evidence does not inform us. It was, at all events, sufficient to have let him know that all was not well with his daughter. It should have put him upon enquiry. Do you doubt that he knew it all? Did he not at least believe it? If he did not, how could lie have gone home from Terre Haute, with the terrible uncertainty rending his soul, when 24 370 MODERN JURY TRIALS. the means of learning all whether the horrible story was true or false were so immediately at hand ? To doubt upon such a point, was more terrible than the most horrible certainty itself. How could he have gone home, doubting whether his darling, daughter, whom he loved as the apple of his eye, as Judge Carlton has told you, was lost to herself, to her family, and to the world ; or whether she was still to remain the pride of his eye and the darling of his heart ? If he loved as is now pretended, and as I am not disposed to question, it is contrary to nature that he should have so acted, for " O, what damned moments tells he o'er, Who doubts, yet dotes, suspects, yet dearly lores. ** He must have known that she had fallen, or he must have held her cheap in his affections, indeed. In her affliction, this horrible story did not, as we are now told, even induce him to see her, although he was in the same town where she was, upon business connected with her reputation. Surely he could not so have acted, while uncertain in regard to her downfall. Who that had the heart of a father could ? But, if he knew that the story was true, his con- duct is not at all inconsistent with the deepest paternal love. In that case, his own good sense would have told him that it would be better to avoid the scene that must have followed their meeting, until they could meet where no stranger's eye would witness their wretchedness and woe. He must have known it, therefore; and re- turned to his home satisfied of her downfall. If he did not know it, then he had no love for her, out of which the terrible sequel which we are investigating to-day could have come. I shall, therefore, as the most favorable and merciful conclusion to which the facts point, assume that he did know all; or, at least, that he did believe all that had been told him concerning his daughter. But mark the result. Did this belief produce any visible effect upon his manners, his conversation, or his life ? No one beheld him returning from Terre Haute with all the marks of excitement and sorrow that would have been stamped upon his face, if the theory of the defense is the true one. No one saw him weeping about Bedford after his return, in consequence of his blighted hopes in his lost child. On the contrary, Dr. Smith, his own witness, informed you that he rode home with him from the country on the evening of his daughter's arrival, and that in a conversation lasting while they rode several miles together, he saw no change in his manner. He was the same Dr. Newland whom he had always found him to be. He saw no symptom of grief, shame, or insanity about him. It was just about dark when they came into town; and the evidence NEWLAND-EVANS HOMICIDE. 371 shows that the first meeting between him and Helen t )ok place immediately after his arrival. Before they met, his wife had told him at the gate that Helen was at home. The question which he then asked his wife, proves that he had already heard all about her condition; for, if he had not, it is without sense. That question was, "Is it true?" His wife informed him it was true. Take that question and answer, and reconcile them, if you can, with any other supposition than the one that I have already adopted, namely, that he had heard the whole story of his daughter's seduction and pregnancy when he was at Terre Haute; and that after his return from that city he and his wife had talked it all over between them- selves, and understood it but too well. What antecedent can you find in all that took place between them at the gate for the pro- noun " it," in the question of the father, or the answer of the mother of the ruined girl ? There is none, unless you refer to their mutual knowledge of something that neither seemed to be able to utter in words. They each understood without words the hateful antecedent of "it," in the question, "Is it true?" That puts all beyond doubt. He had then borne the terrible secret of his daughter's ruin and shame, in his own heart, or shared only with the partner of his bosom, during the two weeks that immediately preceded the homicide; and no man, down to the last moment before meeting his daughter, had been able to see any change in his demeanor or appearance. It was not, then, the loss of his child and the shame of his family that drove him mad, if, indeed, he was mad. He was able to stand up against all that, and so bear himself that the world could behold no signal of the soul's distress in his form or features. This being so, we must look further for the cause of his subsequent excitement. From what followed, I am led to believe that its cause will not be found in the fact that Evans was even the seducer of the girl. Bad as that is assumed to be and God knows, if it be true, it is bad enough it was still not the climax of the seducer's wrong not the real cause of his excite- ment, and alleged insanity. He had borne all that, and could have borne it still. We must go further, if we would reach the real cause of the terrible outburst of passion, insanity or crime that fol- lowed. I shall give you a solution of the difficulty before us in the defendant's own words. They were spoken in his own house the next morning after the homicide, to his friend, Dr. Raridan, and are as follows: "I asked Helen if Evans knew her condition ? She said he did; and had written her a letter sympathizing with her. I asked her if he had ever offered her any assistance. She said he had not. Then fire went through my brain, and I determined to 372 MODERN JURY TRIALS. kill him." Here, then, seems to be the explanation of the motive upon which he acted, or the cause of his insanity, if that shall better answer the condition of the case. He leaves us to infer what he may have meant by "assistance," but he leaver no room for inference that, if Evans had " offered her assistance," he might have been, to-day, a living monument of his sparing mercy. That much is certain. It is only necessary for us to inquire and find out if we can what he meant by "assistance." I have spent much thought upon the inquiry, and have been led by every effort reluc- tantly to the same ugly conclusion. It could not have been money that he meant; for she needed no such assistance. He, too, would have scorned to receive it from poor Evans, whose entire means would not have supported a single year. Even the offer, had he been both rich and generous, would have but added insult to injury. Dr. Newland was not the man to think of pecuniary assistance for his ruined girl. It was not that. Marriage was always out of the question. She knew that before she gave up to him the jewel which alone gave her life its value. It was true from the beginning. It remained true now, after the discovery at the close of their lawless love. A life stood between them. Mar- riage was not the assistance, therefore, to which he referred. What then was it? Was it concealment? It is said that such things may be concealed, and the world remain ignorant that they have ever been; because crime can shut the door in the face of dis- covery. Was it that? I blush to think so; but what else could it have been ? Try, gentlemen, try for yourselves, to find any other "assistance" that could have been intended; and, if you can find it in all the facts of the case, in the name of mercy and humanity give the defendant the benefit of your discovery. To me that seems to have been all he meant the sum of his thought, and the pivot on which his determination to kill Madison Evans was sus- pended. Had the question been answered in the affirmative, the result of the whole matter might have been different. But it was answered in the negative. Then, "fire went through my brain, and I determined to kill him." That was "the point of honor" upon which the matter was to rest in all after time; when Evans should sleep in the " eternal dumbness of the grave." Alas, for poor human nature ! It seems never to be able to raise itself up to the contemplation of true excellence and goodness. It seeks rather to follow the shadow, than to enjoy the substance to possess the reputation than the character of virtue. Thus, for- ever, do the sad experiences of life overthrow and destroy the golden dreams of our boyhood, which, born of enthusiasm and NEWLA.ND-EVANS HOMICIDE. 373 hope, made our existence glad, and sweet and beautiful as the gar- den of God. Not only do our experiences banish our dreams ; they strike to dust the ideals which, for us, brightened and glori- fied so many pages of the world's history. Who has not glowed with admiration and reverence over the legend of the Roman Lucretia, so cruelly ravished by the infamous son of Tarquin ? She was long the ideal of my soul of the true and noble woman ; but, in the presence of the facts revealed to us to-day, in real life, I feel that I must give her up. She, too, was weak and frail as the rest. Like them she worshipped the shadow because it was cast upon the earth, while she did not even see the substance that lived above the reach of her groveling thoughts. Else why did she, to avoid the reputation of vice and crime after death, surrender her- self at once to both and Sextus ? Surely the true worshipper of virtue would have rather died uncontaminated, than to have sur- vived its accomplishment in order to vindicate her name by an explanation that only told the world that not virtue, but its repu- tation, was the god of her idolatry. Why, what to her would have been the voice of the world, if she had bravely died to preserve her purity ? The reputation, even of chastity, is too dearly bought by the sacrifice of the virtue itself ; for after the barter it becomes a cloak and dupes the world with a lie. It is in such disguise that the brave Lucretia has duped mankind. She was too weak to do right, and leave consequences to take care of themselves. What right has she, then, even to the reputation of virtue, since she sold the character to buy it ? And the defendant fell by the same weakness into the same wickedness. Under the word "assist- ance" lies the dark admission that it is not the crime, but the shame that follows discovery, that makes crime really hateful. But suppose that the letter of sympathy and the failure to offer assistance drove the defendant to desperation. There can be found in the whole evidence nothing else. Tell me, then, what there is in these to give rise to such passion, or insanity, as is claimed to have existed in the defendant, when he had submitted quietly for weeks under the full knowledge of the ruin of his wretched child ? And what, indeed, is there in all combined both what he had learned at Terre Haute and at home but a great, sufficient and just cause for anger, resentment and revenge toward the deceased ? Surely nothing could be added to the story of his daughter's seduction, which he had borne without the least manifestation of excitement } or insanity, for two weeks, capable of driving so immutable a man at once to madnesa. But the doctors tell us that his eyes glared, shined and flamed, and that he rushed out of his house, tearing 374 MODERN JURY TRIALS. himself loose from his daughter, who fell senseless upon the floor; and that, therefore, it is their opinion and judgment that he was mad. The cause of his madness, however, has been already ascer- tained and analyzed, and it has been shown that no argument can be deduced from it at all to show that his madness ever existed. It had no effect upon him for two weeks; for it will not be contended that if the fall of his daughter wrought no change upon him in the course of two weeks, that the discovery, at the end of that time, that the seducer had failed to offer her any "assistance," could have carried the defendant at a single bound into the dominion of insanity. Such a supposition is not reasonable, and I do not believe it is true. But that his eyes glowed and flamed, and he rushed vio- lently out of the house, " determined to kill Madison Evans," con- stitute the entire sum of the symptoms of insanity that he mani- fested when he left home. The state of his eyes and his abrupt departure from the house are all that we know upon which to build the theory of his insanity at that time, except the alleged cause; and that has been shown to be wholly inadequate, and, in fact, ridiculous. His whole conduct during the two weeks that the pre- tended cause had been operating upon him contradicts the pretense that it was any cause at all. And now, without any sufficient cause, a single feature and a single act, each and both, equally expressive of anger as of insanity, must now be accepted as all-suf- ficient evidence that he was insane. Even that act and that feature are described to us by the fallen girl, the one witness in all the world likely to heighten every indication in her father that would shield him from the consequences of the horrible homicide he had committed in revenge of her real or imagined wrongs. Yet even her account of him is of no significance as proof of insanity. The condition and expression of the eye, since there was quite as much ground for anger as insanity, and it as fitly expressed the former as the latter, is without any significance whatever. It is, I know, an important feature in the diagnosis of insanity often an index to the condition of the mind; but does the fact that "it glowed like fire " authorize us to conclude that he was therefore mad ? The doctors do, indeed, say that he was mad when he left the house; and yet they have no other symptom than the gleam of the eye on which to build their conclusion. The poets and philosophers the real leaders of thought and of men stand opposed to the doctors here. From Homer, the father of Greek poetry and literature, all the great poets who have followed him, down to the last who has sung a strain worthy of his divine art, are opposed to our doctors. The blind old man of the Iliad describes one of his heroes as he NEWLA.ND-EVANS HOMICIDE. 375 is forced to retire before his victorious foes, and does not fail to note that, "His eyeballs glowed with liying fire." And Collins, too, the poet of the passions, whose immortal ode has a place in the literature of all languages, not merely for the beauty of its poetry, but for the truth of its description, thus introduces anger: " Next anger rushed, hi* eyes on fire," giving us, in this single line a full description, in both respects, of the defendant at the moment he left his house; for "Newland rushed, his eyes on fire." And this is all there is in testimony tending to prove him insane. A description of anger, which sci- ence has long accepted, is thus found to apply literally to the con- dition of the defendant. And yet grave doctors rely upon these manifestations of anger as not merely evidence, but sufficient proof of his insanity ! I am here so fortunate as not to be under the necessity of wholly relying upon the poets to confound the doctors. Their own author- ities sworn to be such here in court by themselves fully support the poets, and overthrow them. They have told you that Wharton & Stette's Medical Jurisprudence is a high authority for both their profession and ours; and I now quote it as fully supporting my argument and putting down their opinion. [Here Mr. Gordon read a long quotation from the book referred to, beginning at page 103.] Here, then, to-day we have the pupils against their masters the doctors against their professors. On which shall we rely ? Had the doctors not sworn to the book we might have failed to deter- mine; but their testimony takes away all difficulty, and gives the book a fair preponderance against them. We are now at liberty to conclude that these gentlemen played truant when they were students; that they were idle boys, and neglected their lessons. But if the poets and professors be allowed only to balance the doc- tors, it is enough for our purpose. In that case, all difficulty is removed from our labor in respect to the question under considera- tion; for nothing is proved where the evidence on the two sides is equal. Hence the old distich is found to express the truth of the uase in hand: " When doctors disagree, Disciples then are free." 376 MODERN JURY TRIALS. Having no guide they are bound to respect or follow, how can it be otherwise ? There is, then, no proof that the defendant was insane at his house or at the time of leaving it on the night of the homicide. He was merely angry; his anger had ripened into revenge, had led to the determination of killing the deceased. While upon this point, it may not be amiss to observe that there is a great dissimilarity in the account given by the defendant him- self to Dr. Raridan, of what took place between him and his daugh- ter before he left home, and that given by the daughter in her testimony here, before you. The defendant said nothing about pushing his daughter from him, and rushing from the house. Yet he told Dr. Raridan that he was telling him all about the transac- tion. If he did tell him all about it, the daughter's story cannot be true. What are we to believe? I leave it with you to deter- mine. We next behold the defendant in front of Carlton's drug store. For what purpose had he gone there ? His own declarations and all the circumstances prove that he went there to see his friend, Judge Carlton, for the purpose of pouring his griefs into his ear, and receiving his friendly consolations and advice. He remained there some time before Judge Carlton came to his office; and while there we are permitted to observe the tenor of his bearing, con- duct and conversation, through the eyes and ears of those who saw and heard him ; and from all that was there seen and heard, all the doctors concur in saying, that there was nothing in it all tending to prove him insane. His whole conduct while awaiting the arri- val of his friend, Judge Carlton, was perfectly consistent with sanity. The little restlessness he manifested, though observed by Rawlings, with whom he was talking, did not strike him even as unusual, or seem to be the result of any unusual excitement, and was not thought of until after the announcement of the homicide. I submit, therefore, that it should not be taken now as any evidence of insanity at that time. If the doctors had concluded otherwise than they did, from what happened there, that he was insane, you could not have believed them ; for all that he said related to his agricultural plans for the summer the different crops he intended to cultivate in different fields; and nothing could have been more ensible and reasonable. On these subjects he and the witness had conversed before ; and this coversation took up the former one, and carried it into details. If from such a conversation you should infer insanity, how long may it be before every one of us may find himself in a lunatic asylum for treatment ? If to speak reasonably of one's own affairs be proof of insanity, then let the inmates of NEWLAND-EVANS HOMICIDE. 377 our asylums change places with those who are wisely engaged in the pursuits of common life ; for the clearest evidence of sanity in such case, must be held conslusive proof of insanity. But before we allow ourselves to be so misled, let us glance at the testimony. Rawlins says that when he first came up to the defendant, stand- ing on the pavement in front of Judge Carlton's office, he addressed him thus : Question " Ben, are you going up the street ? " Answer "No ; I am waiting to see Carlton." Then followed a long, connected and sensible conversation about farming, which in no part or degree evinced any mental quality or state so much as good sense and sound reason. It is too long to repeat here ; but you will not forget it. It shuts the door in the face of the assump- tion that he was either insane or excited. But this testimony is strongly reinforced by that of another witness, who saw him lean- ing against Judge Carlton's office. That is not an attitude in which excitement or insanity ever displays itself. On the contrary, it indicates calmness and repose. The witness who saw him in this position, spoke to him thus : Question "Doctor, is there a little lawsuit going on in there?" Answer " I do not know." And, having made this answer, he walked away toward the street. What is there in all this that does not tend to contradict the hypothesis of insanity nay, more, that does not overthrow it ? As Judge Carlton came to his office, the defendant went to the door, knocked and called him out ; and they went together at once directly to the defendant's own office. Nothing happened on the way to show that defendant was not perfectly master of himself. There was no sign of excitement in his face or speech. As soon as they entered his office defendant struck a light, and they seated themselves close to, and facing each other. They were there for consultation, and their position was well chosen for that purpose. It was the natural choice of sane men. They were friends. They knew and trusted each other ; and what was then about to take place between them, and did in fact occur, must greatly enlighten us in regard to the mental condition of the defendant the great purpose for which it was admitted as part of the evidence in the case. Let us, then, scrutinize their conduct and conversation with the utmost force of our minds, that we may justly estimate the weight of the evidence, or proof which it contains touching the defendant's mental condition at that time. 878 MODERN JURY TRIALS. In the first place, it is manifest from all that occurred that th object of the defendant in taking Judge Oarlton away from his office to his own, was that he might in private open his heart to a man whom he both knew and trusted ; and who sustained the same relations to life and society wife, children and friends that he did himself. His purpose went further. He desired to take the advice of that man upon the line of conduct proper for him to pursue under the melancholy circumstances that sur- rounded him. And, no doubt, he seeded and desired his sym- pathy. Behold them, seated as I have said, face to face, and close together, and listen to the conversation that follows. They were old and tried friends ; and had been for many years. But that friendship was not a sufficient guarantee to satisfy the defendant that he could safely confide to it the awful burden of his heart. It must be tested anew. He must re-examine it ; for he was about to make it the foundation on which he proposed to himself to build the weightiest structure that friendship ever reposed upon friendship. The process of re-examination began with a severe, searching, probing look, that went deep down into his friend's heart, as if to feel of and learn the stuff that it was made of. But that did not satisfy him. It was not enough. He sent a question after that questioning look. Listen, listen, gentlemen, that you learn the drift and connection of his thoughts : " Carl- ton, are you my friend ?" He seeks that bed-rock on which he may build the structure of his purposes. His foundation must be the unshattered granite of true friendship. He will trust nothing else. It must be proved, too, before he will venture to lay a single stone upon it. His friend answered him : " Ben, you know I am, and have always been your friend." "That will do," thought the defendant, " I may plant the first stone of my heart's purposed temple upon that foundation. And down it goes. " Are you a father?" That points upward to the dome. Back comes the answer from the sustaining foundation, " I am." It is brief ; but it tells the defendant he may lay another stone upon that foundation, for it is solid still. So, down it goes. " Have you a daughter ?" The structure rises. The builder's purpose may be almost seen from what he has already done. But listen to the answer upon which his faith will still build. "I have my little daughter Cora ; you know her very well. She is three years old." All is right still. The temple rises is almost com- plete. In the eye of reason it is so far perfect without flaw, and safe beyond fear. So down goes another stone ; and, if the founda- tion shall sustain that, he may stake life, and honor, and all upon it NEWLAND-EVANS HOMICIDE. 379 So, here it goes : " What would you do if a man should seduce your little daughter, Cora, and ruin her forever ?" In this way had the defendant said in his heart : " I will compare the calm, unruffled judgment of my bosom friend with my own, by present- ing to him an hypothesis, very distinctly and sharply framed, and exactly similar to the reality of my own sad case, on which my judgment and determination have already been formed. If his judgment accords with my own, it will strengthen my purpose, and make my path plain and my work easy." But here, for the first time, the response does not support the purpose of his mind. The faithful friend had been adroitly led to confront the gravest of all possible questions ; and he stops short, saying : " That is a hard question. But what is the meaning of all this?" This led the defendant to open to his friend his own sad case ; and he said : " My daughter Helen has been seduced, and ruined for- ever. I have it from her own lips. Madison Evans seduced her. I am ruined ; Helen is ruined ; my whole family is ruined. She and I had better be dead. I don't see how that infernal Evans and I can live in the same world." Then said Judge Carlton: "Doctor, for God's sake use no violence." And the defendant replied : " I don't see how I can help killing him, if we should meet." Again his friend told him he had better be calm, go home, and go to sleep. But, again, the defendant answered : " How can I sleep when my brain is on fire ?" He did, however, finally become quiet ; and promised to keep so ; and his friend, agreeing to return to him in a short time, left him quiet. But Judge Carlton was not entirely satisfied that he was safe, and sent his brother James to defendant's office to take him home, after first telling him all about his misfortunes. When James got to the office, however, it was dark, and as the door-knob was broken off, he could not get in. The defendant was still there, for he was heard walking to and fro in the back room. And so Mr. Carlton went away and left him there. But he had heard enough to lead him to fear that the life of Evans was in danger ; and he hastened to his office to warn him of that danger. But his office, too, was dark ; and he went back to his own drug store and thought no more about it, until the defendant came there after the homicide had been com- mitted. Here, then, is the last scene in the tragedy in which it is pretended that the defendant showed any sign of madness; and this, so far as the mind is concerned, is the whole of it. What the defendant told Mr. Dunham forms no part of it. That came from him after the play was ended, and the curtain down. It is more properly, 380 MODERN JURY TRIALS. therefore, a part of a new drama, one act of which we are now playing, than of the old, which ended in blood on the fifth of March. It is quite as fitly set in the second, as the conversation between Judge Carlton and the defendant is in the first. To this it has no relation. I say, then, what was there in all that was said and done in the defendant's office before the homicide that in the least degree tends to show that he was insane ? Or, more appro- priately, what is there in it all that does not prove that he was then a sane man, but angry, revengeful, and fatally bent on mischief and murder. Let me repeat the conversation between him and Judge Carlton, that you may see how solidly it adjusts itself to the circumstances by which he was surrounded; and to his determina- tion, formed before leaving home, to kill Madison Evans. Examine for yourselves, and see how naturally it meets all the requirements of the best informed and most perfect human reason. If a single word were absent, it would be less perfect than it is; and whether we could tell what was wanting to make it complete, or not, I am certain we should feel that there was in it "some hidden want." At the same time, we feel that, to add anything to it, would be to inflict a blemish. When you have gone through it, without note or comment, therefore, ask yourselves whether it is possible that a piece of work so perfect is the creation of a madman ? But hear it: Defendant "Carlton, are you my friend?" Judge C "Ben, you know I am, and have always been your friend." Defendant " Are you a father ?" Judge C 11 1 am." Defendant " Have you a daughter ?" Judge C "I have my little daughter Cora, three years old. You know her very well." Defendant